
USCA1 Opinion

	




          September 29, 1992    [NOT FOR PUBLICATION]                                 ___________________          No. 92-1108                                              RICHARD ALAN WEST,                                Plaintiff, Appellant,                                          v.                              UNITED STATES OF AMERICA,                                 Defendant, Appellee.                                  __________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                    [Hon. Jose Antonio Fuste, U.S. District Judge]                                              ___________________                                 ___________________                                        Before                                 Breyer, Chief Judge,                                         ___________                           Campbell, Senior Circuit Judge,                                     ____________________                               and Cyr, Circuit Judge.                                        _____________                                 ___________________               Richard Alan West on brief pro se.               _________________               Richard  S.  Cohen,  United  States  Attorney  and  F.  Mark               __________________                                  ________          Terison, Assistant United States Attorney, on brief for appellee.          _______                                  __________________                                  __________________                 Per Curiam.  Petitioner appeals denial  of his motion to                 __________            set aside,  vacate, or  correct his sentence  pursuant to  28            U.S.C.    2255.    We affirm  the  district court's  decision            dismissing his petition.                 Petitioner was  convicted by a  jury in August,  1989 on            three  counts of distributing cocaine.  He was acquitted of a            fourth count  of  conspiracy.   In  November,  1989,  he  was            sentenced  to  concurrent sentences  of fifty-five  months on            each of  the three counts, followed by five years' supervised            release.  He was also fined $2500 per count (total $7500), to            be  paid  in installments  during  the  five  year period  of            supervised  release.   Joined  by  his  three  co-defendants,            petitioner appealed  his sentence.   This court  affirmed the            district  court's  judgment,  and the  Supreme  Court  denied            certiorari.   United  States v.  Zuleta-Alvarez, 922  F.2d 33                          ______________     ______________            (1st Cir. 1990), cert. denied, 111 S. Ct. 2039 (1991).                             ____________                 Petitioner filed the instant motion, pro se, in October,            1991, alleging  six new reasons for relief from his sentence.            The United States  Attorney was  ordered to  answer, and  the            motion was referred to  the original sentencing judge.   In a            lengthy  and detailed  opinion issued  in January,  1992, the            sentencing   judge   dismissed  each   of   petitioner's  six            assignments of error.                   On this appeal petitioner reasserts only one of the six            grounds he raised below.  He claims that the sentencing judge                                         -2-            relied   upon  improper  information  in  finding  petitioner            capable  of paying the  $7500 minimum fine  prescribed by the            Guidelines.    Petitioner  argues  that the  sentencing judge            infringed upon petitioner's Fifth Amendment privilege against            self-incrimination  by  accepting  the   probation  officer's            response to  petitioner's objection  to paragraph 126  of the            presentence report.  Paragraph  126 of the presentence report            concluded  that  because  petitioner  failed  to  complete  a            required financial statement, he was presumed able to pay the            minimum  fine.    Petitioner objected  that  he  had filed  a            financial statement when arrested,  and his situation had not            changed  since then.   The  probation officer's  response was            that   the   post-conviction   financial   statement   sought            significantly   more  specific   information  than   the  one            completed on arrest, and that  petitioner's earlier statement            "makes  no accounting of his  drug sales."  Petitioner claims            that  the  district  court's  acceptance  of  the last-quoted            language violated petitioner's Fifth Amendment rights.                 The district court responded to petitioner's argument as            follows:                                            In  adopting the  probation  officer's response  to                 West's  objection  ...  we  simply  recognized that                 there  was not  sufficient  evidence  to  determine                 whether the fine should  be waived or reduced.   In                 his  objection, defendant  insisted on  standing by                 his earlier  financial affidavit sworn at  the time                 of his arrest.   It was not West's failure  to come                 forward with an accounting  of his ill-gotten gain,                 but  rather his  refusal to  come forward  with any                                                                 ___                 accounting  that led  the court  to apply  the fine                                         -3-                 mandated by  section 5E1.2(a) and not  find a basis                 for the exception of section 5E1.2(f).                              Thus petitioner's Fifth Amendment argument was shown  to            be baseless.  On appeal here petitioner claims that  reliance            on  his Fifth  Amendment  privilege was  the  reason for  his            failure to  submit the  requested financial statement  in the            first  place.   This argument  does not  appear to  have been            clearly  raised below.  But in any  event we cannot credit it            in light of  the record before us.  Taken  as an assertion of            the privilege, it is about 3 years too late and it is plainly            contradicted by  the objection petitioner made  to the report            at the time.                  Petitioner  also argues  that  the  district court  had            insufficient evidence upon which  to determine his ability to            pay.  This  argument is  based on a  misunderstanding of  the            guidelines.  Under   5E1.2(a) the district court was required            to  impose a fine  unless petitioner established  "that he is            unable to  pay and is  not likely to  become able to  pay any            fine."    U.S.S.G.     5E1.2(a).   Accord  United  States  v.                                               ______  ______________            Marquez,  941 F.2d 60, 65-66 (2d Cir. 1991); United States v.            _______                                      _____________            Rafferty, 911 F.2d 227, 232-33 (9th Cir. 1990); United States            ________                                        _____________            v. Perez, 871 F.2d 45, 48  (6th Cir.), cert. denied, 492 U.S.               _____                               ____________            910 (1989) (applying similarly-worded  successor guidelines).            But see United States v. Walker, 900 F.2d 1201, 1206 n.5 (8th            _______ _____________    ______            Cir.  1990).  Since petitioner  failed to meet  his burden of                                         -4-            producing  evidence  demonstrating an  inability to  pay, the            district  court was required  to impose at  least the minimum            fine.                       Petitioner's final argument is that the sentencing court            did  not   make  specific  findings  concerning  the  factors            required to be considered under 18 U.S.C.   3572.  Petitioner            urges  us  to rule  on this  argument  without regard  to the            district court's current explanation for the fine it imposed.            But  we see no reason  to avoid the  district court's current            explanation.    On the  contrary,  as the  Supreme  Court has            indicated,  the sentencing court may properly rely on its own            memory in ruling on a   2255 motion.   Blackledge v. Allison,                                                   __________    _______            431 U.S. 63, 74 n.4 (1977).                 Our  own reading  of the  record, including  the court's            explanation of its sentencing decision on the instant motion,            convinces us  that it had sufficient  evidence and considered            all  relevant factors.    As we  observed  in response  to  a            similar  argument  made  under an  almost  identically-worded            statute, 18 U.S.C.    3622(a)  (now repealed),  "we will  not            presume  that the  district  court declined  to consider  the            relevant ... evidence."   United States v.  Wilfred Am. Educ.                                      _____________     _________________            Corp., 953 F.2d 717 (1st Cir.  1992).  The district court was            _____            not  required to  write out  its findings  on each  and every            factor, so long as it considered the relevant factors and the                                         -5-            record was otherwise adequate  for appellate review.   Id. at                                                                   __            719-20.1                   Petitioner's  second point  on this  appeal, challenging            the statutory  authority  of  the  Sentencing  Commission  to            promulgate  certain  provisions  of the  guidelines,  was not            raised  below.  Accordingly it will not be considered for the            first time on appeal.  United States v. Pilgrim Market Corp.,                                   _____________    ____________________            944  F.2d  14, 21  (1st  Cir.  1991); Hernandez-Hernandez  v.                                                  ___________________            United States, 904 F.2d 758, 764 (1st Cir. 1990).             _____________                 For these reasons, the district court's order dismissing            the petition is affirmed.                                   _________                                            ____________________            1.  The  record  shows  that  petitioner  is  37  years  old,            healthy, trained as  an electrician's helper and  welder.  He            offered nothing to  contradict the conclusion  that he had  a            future  ability to  earn  an income  sufficient to  repay the            minimum  fine  in  installments  during  his  five  years  on            supervised release.                                         -6-
