
USCA1 Opinion

	




          August 10, 1992       [NOT FOR PUBLICATION]                                 ____________________        No. 91-2297                                     UNITED STATES,                                      Appellee,                                          v.                                RAMON SANTANO CAMACHO,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                  [Hon. Carmen Consuelo Cerezo, U.S. District Judge]                                                ___________________                                 ____________________                                        Before                                 Breyer, Chief Judge,                                         ___________                            Selya and Cyr, Circuit Judges.                                           ______________                                 ____________________            Ramon Santana Camacho on brief pro se.            _____________________            Daniel  F. Lopez  Romo,  United  States  Attorney,  and  Edwin  O.            ______________________                                   _________        Vazquez, Assistant United States Attorney, on brief for appellee.        _______                                 ____________________                                 ____________________                 Per Curiam.   Following his conviction on two  counts of                 __________            bringing  an  illegal  alien  into  the  United  States,   in            violation  of  8  U.S.C.     1324(a)(1)(A),  defendant  Ramon            Santana-Camacho was  sentenced  to two  consecutive terms  of            five  years  in prison.    He also  received  fines totalling            $250,000.  As the offenses occurred in 1986, those fines were            imposed pursuant to  former 18 U.S.C.    3623(a) (repealed as            of  November 1, 1987).  See United States v. Wilfred American                                    ___ _____________    ________________            Educ.  Corp., 953 F.2d 717, 719 n.1 (1st Cir. 1992) (reciting            ____________            statutory history).   His conviction was  affirmed on appeal.            United  States v.  Santana-Camacho,  931 F.2d  966 (1st  Cir.            ______________     _______________            1991).   Defendant thereafter  brought a timely  motion under            former  Fed. R.  Crim. P.  35(a) for correction  of sentence,            claiming  that  the fines  had  been illegally  imposed.   He            alleged,  inter alia, that  the court had  failed properly to                      __________            consider  his   "income,  earning  capacity,   and  financial            resources,"  as  required by  18  U.S.C.    3622(a)(3).1   In                                            ____________________            1.  18 U.S.C.   3622(a) provided in relevant part:                 (a) In determining whether to impose a fine and the                 amount  of a  fine,  the court  shall consider,  in                 addition to other relevant factors--                      (1)  the  nature  and  circumstances   of  the                 offense;                      (2)  the history  and  characteristics of  the                 defendant;                      (3) the defendant's income,  earning capacity,                 and financial resources;                      (4) the burden that  the fine will impose upon                 the   defendant,  any  person  who  is  financially                 dependent  on the  defendant,  or any  other person                 (including a government) that would  be responsible                 for the welfare of any person financially dependent                 on  the  defendant,  relative  to the  burden  that                 alternative punishments would impose;                      (5) any pecuniary  loss inflicted upon  others                 as a result of the offense;                      (6) whether  restitution  is ordered  and  the                 amount of such restitution;                       (7) the  need  to  deprive  the  defendant  of                 illegally obtained gains from the offense ....            particular, he contended (1) that this provision necessitated            a finding  that he was or reasonably would be able to pay the            fines levied,  and (2) that  the court's implicit  finding in            this regard was unsupported  by the record.  From  the denial            of this motion, defendant now appeals.                   We find no error.  "There is no abuse of discretion when            the court  had  before  it information  bearing  on  all  the            relevant  factors,  including  facts  necessary  to  consider            imposition of a substantial fine, absent a record showing the            court  refused to  consider the  section    3622(a) factors."            United States v.  Weir, 861  F.2d 542, 545  (9th Cir.  1988),            _____________     ____            cert.  denied, 489 U.S. 1089 (1989).  The district court here            _____________            had information pertaining to each of the pertinent criteria,            including defendant's  financial status.   The  court clearly            considered each  criterion; in fact,  it has  done so  twice,            first  at  sentencing and  then  in response  to  the instant            motion.   In balancing  those factors,  the court  acted well            within   its   discretion,  particularly   given  defendant's            prominent role in the smuggling organization  and the need to            deprive him of illegally  obtained gains.  And the  fact that            the fines  imposed were  only half  of the  statutory maximum            reflects  an  appreciation   by  the  court  of   defendant's            financial status.  See, e.g., United States v. Pilgrim Market                               ___  ____  _____________    ______________            Corp., 944 F.2d 14, 23 (1st Cir. 1991).            _____                                         -3-                 We need not decide whether   3622(a) requires the court,            not only  to consider a defendant's  financial condition, but            to ensure that any fine imposed is reasonably consistent with            his present or future ability to pay.  Assuming arguendo that                                                            ________            such a requirement can be read into the statute, we think the            fines  here are consistent therewith.   To be sure, defendant            appears to lack  the present  ability to pay  $250,000.   The            presentence  report (PSI)  listed his  net worth  as $26,000.            Furthermore,  contrary to  the  government's suggestion,  the            record  provides  little  reason  to  believe  that defendant            possessed,  or had  access to, substantial  additional assets            that  were not disclosed.  Such a finding "must be reasonably            supported by probative evidence."   United States v. Rowland,                                                _____________    _______            906 F.2d 621, 624 (11th Cir. 1990).  Yet the PSI stated there            was "no evidence that  the defendant amassed great quantities            of money  as a  result of his  criminal activity."   Both his            trial and appellate counsel were  appointed.  See U.S.S.G.                                                             ___            5E1.2,  comment (n.3).  When  arrested, he was  renting a $60            per month apartment from his niece.  And there was nothing in            the  record otherwise suggestive of hidden assets, such as an            "extravagant lifestyle," United States v. Nazifpour, 944 F.2d                                     _____________    _________            472,  475  (9th  Cir.  1991) (per  curiam),  or  "significant            unexplained expenditures."  U.S.S.G.   5E1.2, comment (n.6).                 Nonetheless,  as   indicated  by  the   reference  in               3622(a)(3)   to  "earning  capacity,"  a  defendant's  future                                         -4-            ability  to pay is part of  the equation.  In contending that            he has no  realistic prospect of paying the  fines, defendant            points  to his  self-described  work history,  which consists            principally of  construction, masonry  and factory jobs.   He            suggests that such work, while not insubstantial, is unlikely            to yield the level of income that would permit payment of the            fines.  Yet this argument ignores the evidence that defendant            created and headed  a smuggling organization comprising  some            160   members,   including  recruiters,   transporters,  boat            captains, and police personnel.  Given the skills necessarily            entailed in such an endeavor, and given defendant's age (46),            we think defendant has "at least a hope" of being able to pay            the fines imposed.  United States v. Mahoney, 859 F.2d 47, 52                                _____________    _______            (7th Cir. 1988) (restitution  order).  Should this prediction            prove faulty,  and should the government  seek to incarcerate            him for nonpayment, defendant 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").                 Affirmed.                  _________                                         -5-
