United States v. Camargo (DeOliveira)

09-1698-cr
USA v. Camargo (DeOliveira)
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT . C ITATION TO A SUMMARY ORDER FILED ON OR AFTER J ANUARY 1,
2007, IS PERMITTED AND IS GOVERNED BY F EDERAL R ULE OF A PPELLATE P ROCEDURE 32.1 AND THIS COURT ’ S L OCAL R ULE 32.1.1.
W HEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT , A PARTY MUST CITE EITHER THE F EDERAL A PPENDIX OR AN
ELECTRONIC DATABASE ( WITH THE NOTATION “ SUMMARY ORDER ”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL .
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 22 nd day of September, two thousand and
5 ten.
6
7 PRESENT: ROGER J. MINER,
8 PIERRE N. LEVAL,
9 RICHARD C. WESLEY,
10 Circuit Judges.
11
12
13
14 UNITED STATES OF AMERICA,
15
16 Appellee,
17
18 -v.- 09-1698-cr
19
20 WESLI CAMARGO, EPAMINONDAS JOSE SOARES, JOISTER PACHECO
21 ATAIDE,
22
23 Defendants,
24
25 JEAN DeOLIVEIRA,
26
27 Defendant-Appellant.
28
29
30
31
1 FOR APPELLANT: WILLIAM H. PAETZOLD, Moriarty, Paetzold &
2 Sherwood, Glastonbury, CT.
3
4 FOR APPELLEE: DEBORAH R. SLATER, Assistant United
5 States Attorney (Nora R. Dannehy, United
6 States Attorney, William J. Nardini,
7 Assistant United States Attorney, of
8 counsel), Office of the United States
9 Attorney for the District of Connecticut,
10 New Haven, CT.
11
12
13 Appeal from the United States District Court for the
14 District of Connecticut (Bryant, J.).
15
16 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
17 AND DECREED that the judgment of the district court be
18 AFFIRMED.
19 Defendant-Appellant Jean DeOliveira (“Appellant”)
20 appeals from so much of a judgment of conviction and
21 sentence, entered on April 17, 2009 in the United States
22 District Court for the District of Connecticut (Bryant, J.),
23 as imposed a fine in the amount of $10,000, pursuant to a
24 guilty plea on a charge of uttering counterfeit United
25 States treasury obligations in violation of 18 U.S.C. § 472.
26 The district court also sentenced Appellant to a term of
27 imprisonment of 10 months and a special assessment of $100.
28 We assume the parties’ familiarity with the underlying
29 facts, the procedural history, and the issues presented for
30 review.
2
1 The fine of $10,000 represents the upper limit of the
2 United States Sentencing Guidelines range for Appellant’s
3 offense. Appellant’s sole argument on appeal is that the
4 district court erred in imposing a fine in contradiction of
5 the presentence report’s indication that Appellant would not
6 be able to pay a fine within the guideline range. The
7 government counters that Appellant failed to timely raise
8 this objection below and that the district court’s action
9 should therefore be reviewed only for plain error.
10 Alternatively, the government argues that even under a
11 lesser standard of review for clear error, the action of the
12 district court should be affirmed.
13 During the sentencing hearing, Appellant’s counsel
14 raised no objection to the imposition of a fine. Later the
15 same day, however, counsel did file an objection. Appellant
16 contends that the objection was timely raised, therefore
17 rendering the appropriate standard of review as that of
18 clear error. We need not specify a standard of review,
19 since the district court’s imposition of a fine meets review
20 under either standard.
21 A sentencing judge is not bound by the recommendations
22 of a presentence report. United States v. Miller, 116 F.3d
31 641, 685 (2d Cir. 1997). Further, “[a]lthough a presentence
2 report’s view that defendant has no funds to pay a fine is
3 entitled to weight, and the fact that a defendant is
4 represented by . . . appointed counsel certainly strongly
5 suggests an inability to pay a fine, neither is conclusive.”
6 United States v. Fields, 113 F.3d 313, 325-26 (2d Cir. 1997)
7 (internal citations omitted) (emphasis added).
8 Here, the district court imposed a fine based on its
9 conclusion that Appellant would be able to pay a fine in the
10 future. The court supported its conclusion by reference to
11 other information contained in the Presentence Report
12 including Appellant’s previously demonstrated ability to
13 raise substantial sums of money, as well as his future
14 intention to seek gainful employment after removal to his
15 home country of Brazil.
16 A defendant bears the burden of “establish[ing] that he
17 is unable to pay and is not likely to become able to pay any
18 fine.” U.S. Sentencing Guidelines Manual § 5E1.2 (2009)
19 (emphasis added). While Appellant may have arguably
20 established his current inability to pay a fine, the
21 district court was not in error in its conclusion that
22 Appellant has not established his future inability to pay.
4
1 For the foregoing reasons, the judgment of the district
2 court is hereby AFFIRMED.
3
4 FOR THE COURT:
5 Catherine O’Hagan Wolfe, Clerk
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5