
USCA1 Opinion

	




          January 3, 1994       [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ___________________          No. 93-1624                                                UNITED STATES,                                      Appellee,                                          v.                                     JOHN ARIAS,                                Defendant, Appellant.                                  __________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                     [Hon. Ernest C. Torres, U.S. District Judge]                                             ___________________                                 ___________________                                        Before                             Torruella, Boudin and Stahl,                                   Circuit Judges.                                   ______________                                 ___________________               Tina Schneider on brief for appellant.               ______________               Edwin  J. Gale, United  States Attorney, Margaret  E. Curran               ______________                           ___________________          and Lawrence  D. Gaynor,  Assistant United  States Attorneys,  on              ___________________          brief for appellee.                                  __________________                                  __________________                 Per Curiam.  Defendant-appellant  John Arias pled guilty                 __________            to a charge of possession  of an unregistered firearm, see 26                                                                   ___            U.S.C.   5861(d), and a charge of possession of a weapon by a            convicted felon, see  18 U.S.C.   922(g)(1).   At sentencing,                             ___            the district court  applied the cross-reference  provision of            U.S.S.G.    2K2.11 and set  appellant's base offense level at            28, based on  the applicable guideline for  attempted murder.            See U.S.S.G.    2X1.1, 2A2.1.  Arias challenges his sentence,            ___            claiming  that  the  district  court improperly  applied  the            cross-reference  provision.    Arias  also  appeals from  the            imposition of a fine and the cost  of supervised release.  We            affirm.                                          I.                 We  take  the  relevant   facts  from  the  pre-sentence            investigation  report   (PSI)  and  the  transcript   of  the            sentencing hearing.  See, e.g., United States v. Connell, 960                                 ___  ____  _____________    _______                                            ____________________            1.  The guideline states in relevant part:                 (c)  Cross Reference                      (1)  If the defendant used or possessed any firearm                           or   ammunition   in   connection   with   the                           commission or attempted  commission of another                           offense, . . . apply--                           (A)      2X1.1   (Attempt,   Solicitation,  or                                Conspiracy)  in  respect  to  that  other                                offense, if  the resulting  offense level                                is greater than  that determined above; .                                . .            U.S.S.G.   2K2.1(c)(1)(A)  (Nov. 1992).                                         -2-            F.2d 191, 192-93  (1st Cir. 1992).  On  November 15, 1992, at            approximately  11:15  p.m., appellant  attempted to  enter La            Frangancia Nightclub  in Providence.   Harry  Van Leuven  and            Bienvenido Marrero were working a security detail there.  The            owner  of the nightclub asked Van  Leuven to remove appellant            from the premises because he  had caused trouble there in the            past.   Van  Leuven  did  so, assisted  by  Marrero.   Before            departing, appellant  said that he  would come back  and kill            Van Leuven.                 Approximately fifteen minutes  later, appellant returned            with a loaded  sawed-off shot gun and  entered the nightclub.            He pointed  the shotgun at  Van Leuven.  Marrero  grabbed the            barrel of the  shotgun and jerked it up  towards the ceiling.            The shotgun fired, blowing a hole in the ceiling.  Continuing            to hold  the shotgun,  Marrero pushed  appellant outside  the            club  and into the  street.  There,  appellant struggled over            the gun with Van Leuven  and Marrero.  The shotgun discharged            again, hitting no  one.  Shortly  thereafter, Van Leuven  and            Marrero subdued appellant.                 After Arias  pled guilty on  February 16, 1993,  the PSI            was  prepared.   The report concluded  that the  base offense            level should  be set at  28, pursuant to  the cross-reference            provision  of   2K2.1, because appellant  used the shotgun in            connection with the  offense of attempted murder.   Appellant            objected to  this application of  the guidelines,  contending                                         -3-            that  the  cross-referenced   offense  should  be  aggravated            assault.                 The  PSI  determined the  fine  range to  be  $10,000 to            $100,000 pursuant to U.S.S.G.   5E1.2(c)(3).  With respect to            appellant's ability  to pay a  fine, the  PSI concluded  that            "[b]ased upon the defendant's  financial profile, it  appears            that  he would  have little  ability to  pay  a fine."2   The            report  further  stated,  however, that  "[Arias]  should  be            capable  of securing employment upon his release."  Appellant            objected to  the "insinuation" that  he would be able  to pay            the costs of supervised release.                 At  sentencing, the  district court adopted  the factual            findings and guideline application in the PSI.  After setting            the  base offense  level  by reference  to the  guideline for            attempted  murder,   the  district   court  established   the            guideline sentencing range at 63-78  months (adjusted offense            level--25;  criminal  history  category--II)  and  imposed  a            sentence  at the  bottom end  of  the sentencing  range.   In            addition, the court imposed a fine of $50 on each count ($100            total),  due immediately, plus the cost of supervised release            (a total of $4,150.80), to be paid in monthly installments of            $115.30 after release from imprisonment.                                            ____________________            2.  Arias, a  twenty-nine year old,  was married and  had one            child.   He reported that he had no  assets, and that he owed            $700 in medical bills.  His employment history was sparse and            consisted  primarily of low-paying  factory jobs.   He listed            both his monthly income and expenses at $640.                                           -4-                                         II.                 On  appeal,  Arias  challenges  the application  of  the            cross-reference provision.   According to Arias, it  is ultra                                                                    _____            vires the  power of the  Sentencing Commission to  punish for            _____            conduct that  violates state, but  not federal,  law.   Arias            also argues that he was denied due process of law because the            district  court  sentenced  him for  committing  an  offense,            attempted murder, for which he had not been convicted.                   These claims were  not raised below and  are, therefore,            waived.  See United States v.  Ortiz, 966 F.2d 707, 717  (1st                     ___ _____________     _____            Cir. 1992), cert. denied, 113 S. Ct. 1005 (1993).  Even if we                        ____________            were to address the issues  on the merits, we would disagree.            Those  circuits which  have  considered  whether  the  cross-            reference provision of   2K2.1 applies to state  offenses, as            well as federal offenses, have held that it does.  See, e.g.,                                                               ___  ____            United States v.  Carroll, 3 F.3d 98, 101-02  (4th Cir. 1993)            _____________     _______            (concluding that the Sentencing Commission did not exceed its            mandate by requiring  a cross-reference to a  state offense);            see also United  States v. Anderson, 5 F.3d  795, 802-03 (5th            ________ ______________    ________            Cir. 1993)  (interpreting    2K2.1(c) to  allow a  sentencing            court  to use  state offenses to  enhance a  firearms offense            level).  Section 2K2.1(c) has also uniformly been interpreted            to extend to uncharged conduct.   See, e.g., United States v.                                              ___  ____  _____________            Corbin, 998 F.2d 1377, 1382-85 (7th Cir. 1993); United States            ______                                          _____________            v.  Smith, 997  F.2d 396,  397  (8th Cir.  1993); cf.  United                _____                                         ___  ______                                         -5-            States v. Blanco,  888 F.2d 907, 909 (1st  Cir. 1989) (noting            ______    ______            that  the  guidelines  embody  "a  compromise  .  .  .  among            considerations that favor a `real offense'  sentencing system            and  those that favor a  `charge offense' system).    We have            previously  rejected the argument that sentencing a defendant            on   the  basis,   in   part,   of   uncharged   conduct   is            unconstitutional.  United States v.  Sanders, 982 F.2d 4,  10                               _____________     _______            (1st Cir. 1992), cert. denied, 113 S. Ct. 2937 (1993).                             ____________                 Appellant also reiterates  on appeal his argument  below            that the  district court  erred in finding  that his  conduct            while  in possession  of the  firearm  amounted to  attempted            murder  rather  than  assault.    We  disagree.    Proof   at            sentencing need only  be by a preponderance  of the evidence.            United States  v. Jackson, 3  F.3d 506, 509 (1st  Cir. 1993).            _____________     _______            In  the instant  case, Arias  threatened to  kill  Van Leuven            before leaving the nightclub.   Shortly thereafter, appellant            returned to  the club with a sawed-off shotgun--a very lethal            weapon at close range--and pointed it directly at Van Leuven.            The weapon discharged  as the barrel was diverted  upwards by            Marrero.   After the shotgun  fired, appellant   struggled to            retain possession  of the  weapon.  We  cannot say,  on these            facts, that  the district court  erred in finding  that Arias            intended  to kill, rather  than simply frighten,  Van Leuven.            See United States v.  Brewster, 1 F.3d 51, 54 (1st Cir. 1993)            ___ _____________     ________                                         -6-            (a sentencing  court's factbound determinations  are reviewed            for clear error).                                         III.                 The  remaining issue is whether the district court erred            in imposing  a fine  and the costs  of supervised  release on            appellant.  Arias contends that the district court should not            have imposed any  fine or costs because he  was indigent, his            wife and daughter were  receiving welfare benefits, he had  a            limited  educational  and employment  background, and  he was            subject to deportation upon release from imprisonment.                 We  discern no  error.   Both  18 U.S.C.    3572(a)  and            U.S.S.G. 5E1.2(d)(2) contemplate that  a defendant's "earning            capacity"  should  be  considered in  determining  whether to            impose a fine, as well  as the amount.  Appellant is  twenty-            nine   years  old  and  is  in  good  health.    He  will  be            approximately  thirty-four years old when he is released from            prison.    Although  he did  not  finish  high  school, Arias            completed  a certificate program  in machine processing.   He            was employed at the time of his arrest and reported an income            of $640 per  month.  The PSI concluded that he should be able            to secure employment upon his release from incarceration.                    Under the circumstances, we find that the district court            acted well within its discretion  in imposing a $100 fine and            the costs  of  supervised  release.   See  United  States  v.                                                  ___  ______________            Savoie, 985 F.2d 612, 620 (1st Cir. 1993) (imposition of fine            ______                                         -7-            under  the guidelines is  reviewed for abuse  of discretion).            The fact that the district  court imposed only a nominal fine            and did  not require  Arias  to pay  government costs  during            incarceration  reflects  an  appreciation  by  the  court  of            appellant's  financial status.   See, e.g., United  States v.                                             ___  ____  ______________            Pilgrim Mkt. Corp., 944 F.2d 14, 23 (1st Cir.  1991).  Should            __________________            the appellant be unable to  pay even this minimal amount, and            should the government seek to incarcerate him for nonpayment,            appellant  would  have ample  administrative remedies  at his            disposal.   See, e.g., United  States v. Levy, 897  F.2d 596,                        ___  ____  ______________    ____            598 (1st Cir. 1990); Santiago v. United States, 889 F.2d 371,                                 ________    _____________            373-74 (1st  Cir. 1989) (per curiam); see  also United States                                                  _________ _____________            v. Dominguez, 951 F.2d 412, 416 (1st Cir. 1991) ("an indigent               _________            defendant  cannot be  held in  prison  for failure  to pay  a            fine"), cert. denied, 112 S. Ct. 1960 (1992).                    ____________                 Affirmed.  See Loc. R. 27.1.                  ________   ___                                         -8-
