
USCA1 Opinion

	




          December 11, 1992     [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 92-1409                                     UNITED STATES,                                      Appellee,                                          v.                           ANGEL PEREZ MORALES, a/k/a TATO,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                  [Hon. Juan M. Perez-Gimenez, U.S. District Judge]                                               ___________________                                 ____________________                                        Before                                Selya, Cyr and Boudin,                                   Circuit Judges.                                   ______________                                 ____________________            Angel Perez Morales on brief pro se.            ___________________            Daniel F. Lopez-Romo,  United States Attorney, Robert S.  Mueller,            ____________________                           ___________________        III,  Assistant  Attorney General,  Mary  Lee Warren,  Chief,  Lena D.        ___                                 ________________           _______        Mitchell and William H. Kenety, Attorneys, Narcotic and Dangerous Drug        ________     _________________        Section,  Criminal  Division,  Department  of Justice,  on  brief  for        appellee.                                 ____________________                                 ____________________                 Per  Curiam.   Angel  Perez Morales  (defendant) appeals                 ___________            from  the denial  of his  motion  for correction  of sentence            under former Fed.  R. Crim. P. 35(a).1  We  find no error and            therefore affirm.                   Defendant was one of thirty-nine persons charged in 1987            with various offenses involving the importation of controlled            substances  from  Colombia.   In  April  1988, defendant  was            convicted  of  four  such  offenses:   conspiring  to  import            marijuana and  cocaine (Count  One), aiding and  abetting the            importation  of  marijuana  and  the  importation  of cocaine            (Counts  Two   and  Seven),  and  aiding   and  abetting  the            possession  of  cocaine  with  intent  to  distribute  (Count            Eight).   At  sentencing, he  received consecutive  five-year            prison terms on  each count and a $10,000 fine  on Count One.            On  appeal,  this court  reversed  defendant's  conviction on            Count  Seven while affirming the  other three.  United States                                                            _____________                                            ____________________            1.  Applicable  to offenses  committed prior  to November  1,            1987, former  Fed. R. Crim. P. 35  reads in pertinent part as            follows:                      (a)   Correction of  Sentence.  The  court may                 correct  an illegal  sentence at  any time  and may                 correct  a sentence  imposed  in an  illegal manner                 within the  time provided herein for  the reduction                 of sentence.                      (b)    Reduction of  Sentence.    A motion  to                 reduce a sentence  may be made ...  within 120 days                 after the  sentence is  imposed ..., or  within 120                 days after receipt by the court of a mandate issued                 upon affirmance of the judgment or dismissal of the                 appeal, or within 120 days after entry of any order                 or judgment of the  Supreme Court denying review of                 ... a judgment of conviction ....            v. Aponte-Suarez, 905 F.2d 483 (1st Cir. 1990), cert. denied,               _____________                                ____________            111 S. Ct. 975 (1991).                  On June 3, 1991 (104 days after the denial of certiorari            on February 19), defendant through counsel filed a motion for            reduction and  correction of  sentence under former  Rule 35.            This motion  primarily challenged the length  of imprisonment            but  also  sought remission  of the  $10,000  fine due  to an            alleged  inability  to pay.    The  district court  summarily            denied the motion on July  2, 1991, and no appeal was  taken.            On  October  25,   1991  (248  days   after  the  denial   of            certiorari), defendant filed the  instant pro se motion under            Rule 35(a) to correct an illegal sentence.  His central claim            is that the district  court, in imposing the fine,  failed to            consider the factors enumerated in 18 U.S.C.   3622 (repealed                                         -3-            as  of November  1, 1987).2   The  district court  denied the            motion due to lack of jurisdiction, and this appeal followed.                 We  agree with  the district  court's disposition.   The            time  limitations imposed  by Rule  35 are  jurisdictional in            nature.    United States  v.  Addonizio,  442 U.S.  178,  189                       _____________      _________            (1979).    Defendant's motion  failed  to  comply with  those            limitations.    Accordingly, only  if  the fine  here  was an            "illegal sentence" (which may be corrected "at any time")--as            opposed  to one  "imposed  in an  illegal  manner" (which  is            subject to the 120-day limitation)--would the district  court            have  had  jurisdiction to  award  relief.   Yet  defendant's            challenge is not to the legality of the fine per se:                                              ____________________            2.  18  U.S.C.     3622(a)  provided  in  pertinent  part  as            follows:                      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; [and]                      (7)  the  need  to  deprive  the  defendant of                 illegally obtained gains from the offense ....                                         -4-                 [A]n "illegal sentence"  is one which is  ambiguous                 with  respect to the time and manner in which it is                 to be served, is internally contradictory,  omits a                 term  required   to  be  imposed  by   statute,  is                 uncertain as  to the substance of  the sentence, or                 is a sentence which the judgment of conviction does                 not authorize.            United States v. Ames, 743 F.2d  46, 47 (1st Cir. 1984)  (per            _____________    ____            curiam), cert.  denied, 469  U.S. 1165 (1985);  accord, e.g.,                     _____________                          ______  ____            United States v. Becker,  536 F.2d 471, 473 (1st  Cir. 1976);            _____________    ______            8A  Moore's  Federal Practice     35.06[3],  at 35-55  (1992)                _________________________            ("illegal  sentences are essentially  only those which exceed            the  relevant  statutory  maximum  limits  or  violate double            jeopardy or are ambiguous or internally contradictory").  The            fine  here suffers from none  of these deficiencies.   It was            well below  the statutory  maximum  of $250,000  and was  not            otherwise contrary  to applicable law.   Instead, any failure            by the district court to consider the   3622(a) factors would            render  the fine  one "imposed  in an  illegal manner."   Cf.                                                                      ___            United  States v. Celani, 898  F.2d 543 (7th  Cir. 1990) (per            ______________    ______            curiam) (in Rule 35(a)  context, allegation that court failed            to   consider   required  statutory   criteria   in  ordering            restitution  is  a challenge,  not  to  the  legality of  the            sentence  itself, but to the manner in which it was imposed).            Defendant's motion is thus  barred by the 120-day limitation.                 We note that, even if there were no  jurisdictional bar,            defendant's challenge  to the  fine  would appear  meritless.                                         -5-            The district court was not required  to make specific written            or oral findings  relating to  the   3622(a)  factors.   See,                                                                     ___            e.g., United States v. Wilfred American Educ. Corp., 953 F.2d            ____  _____________    ____________________________            717,  720 (1st  Cir. 1992).   Nor will  we "presume  that the            district  court  declined  to consider  the  relevant section            3622(a) evidence contained in the record."  Id. at 719.  Here                                                        ___            the   pre-sentence  report   contained  information   on  the            principal  factors  identified  by  the statute.    The  only            potentially significant  factor not discussed is  the need to            deprive a defendant  of illegal  gains and  omission of  such            discussion,  presumably  on  the   ground  that  it  was  not            relevant, hardly prejudiced defendant  here.  What remains of            defendant's  argument is  a  disagreement  with the  district            court's exercise of its judgment.                   Affirmed.                 ________                                         -6-
