
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 92-2406                                    EFRIAM NATANEL,                                Petitioner, Appellant,                                          v.                              UNITED STATES OF AMERICA,                                Respondent, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                   [Hon. Edward F. Harrington, U.S. District Judge]                                               ___________________                                 ____________________                                        Before                                 Breyer, Chief Judge,                                         ___________                          Torruella and Cyr, Circuit Judges.                                             ______________                                 ____________________            Efriam Natanel on brief pro se.            ______________            A.  John  Pappalardo,  United  States  Attorney,  and  Stephen  P.            ____________________                                   ___________        Heymann, Assistant United States Attorney, on brief for appellee.        _______                                 ____________________                                     May 14, 1993                                 ____________________                 Per  Curiam.  Petitioner Efriam Natanel was convicted in                 ___________            1989 on a single count of distributing more than 500 grams of            cocaine, in  violation of 21  U.S.C.   841(b)(1)(B).   He was            given a  six-year term of  imprisonment, to be followed  by a            four-year  period of supervised  release, and was  ordered to            pay a  $20,000 fine.   This court affirmed his  conviction on            appeal.   United States  v. Natanel, 938  F.2d 302  (1st Cir.                      _____________     _______            1991), cert.  denied, 112 S.  Ct. 986 (1992).   Following his                   _____________            unsuccessful  pursuit  of motions  for  a new  trial  and for            reduction of sentence, petitioner filed a pro se motion under            28 U.S.C.   2255 to vacate the $20,000 fine, alleging that it            had been imposed in violation of the governing statute.  From            the  district court's denial  of this motion,  petitioner now            appeals.1  We affirm.                 As the  crime  here  occurred in  May  1987,  the  court            imposed the fine  pursuant to  the applicable  pre-Guidelines            statute.   See 18  U.S.C.   3622(a).   This  provision listed                       ___            various factors that the sentencing court "shall consider" in            deciding  whether to impose  a fine and  the amount thereof--            including "the  defendant's  income,  earning  capacity,  and            financial  resources"  and  "the burden  that  the  fine will                                            ____________________            1.  Due  to the sentencing  judge's intervening retirement, a            different district court judge handled the   2255 petition.                                         -2-            impose  upon the  defendant."2   Petitioner  argues that  the            sentencing court failed  to explain its reasons,  pursuant to            these criteria,  for imposing the  fine.  He argues  that the            court specifically  failed to consider  his financial status.            And  he  argues  that  the  court  abused  its discretion  in            imposing  the fine in the  face of his demonstrated inability            to pay it.  We find these assertions unpersuasive.3                 Contrary to  petitioner's first  contention, this  court            has held (in accordance with the  majority of other circuits)                                            ____________________            2.  Section 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;                      ....                      (7) the  need  to  deprive  the  defendant  of                 illegally obtained gains from the offense ....            3.  The government argues, and the district court found, that            petitioner  waived this issue,  having failed both  to object            thereto at sentencing and to raise it on direct appeal.  See,                                                                     ___            e.g., United States v.  Frady, 456 U.S. 152  (1982) (applying            ____  _____________     _____            "cause  and prejudice" test to procedural  defaults in   2255            context).  As we find petitioner's claim to be without merit,            we  need not  address the  question  of waiver.   See,  e.g.,                                                              ___   ____            Murchu v. United  States, 926 F.2d 50, 53 n.4 (1st Cir.) (per            ______    ______________            curiam), cert. denied, 112 S. Ct. 99 (1991).                     ____________                                         -3-            that  "specific  findings  ... are  not  mandated  by section            3622(a)," so long  as the record otherwise  "enables adequate            appellate review."   United States v. Wilfred  American Educ.                                 _____________    _______________________            Corp., 953 F.2d 717, 720  (1st Cir. 1992) (citing cases); see            _____                                                     ___            also United  States v.  Savoie, 985 F.2d  612, 620  (1st Cir.            ____ ______________     ______            1993) (adopting same  rule in Guidelines  case).  His  second            assertion--that the  court failed  to consider  his financial            status--is equally  misplaced.  The presentence  report (PSI)            addressed  this  issue at  some  length, and  "[w]e  will not            presume  that the  district court  declined  to consider  the            relevant section  3622(a) evidence contained  in the record."            Wilfred  American, 953 F.2d  at 719.   "There is no  abuse of            _________________            discretion when the  court had before it  information bearing            on  all the relevant factors,... absent  a record showing the            court refused  to consider  the    3622(a) factors."   United                                                                   ______            States  v. Weir,  861 F.2d  542, 545  (9th Cir.  1988), cert.            ______     ____                                         _____            denied, 489  U.S. 1089  (1989) (quoted  in  United States  v.            ______                                      _____________            Penagaricano-Soler,  911 F.2d 833, 847 n.17 (1st Cir. 1990)).            __________________            Moreover, petitioner's attorney  raised this very  issue when            addressing the court  immediately prior to the  imposition of            sentence.                 In  his  final  argument,  petitioner  suggests  that               3622(a) requires a court, not only to consider  a defendant's                                                  ________            financial  condition, but to ensure  that any fine imposed is            reasonably consistent with  his ability to pay.   We need not                                         -4-            decide  whether  such a  requirement  can  be  read into  the            statute, for (assuming arguendo that  it can be) we think the                                   ________            fine here is  consistent therewith.   To be sure,  petitioner            appears to lack the present ability to pay $20,000.  The PSI,            reciting  financial data submitted by petitioner, lists total            liabilities exceeding $81,000 along  with negligible assets.4            And while the government argues that petitioner retained some            undisclosed  assets (in  the form  of his  share of  the drug                                            ____________________            4.  According to the PSI, petitioner's principal liability is            a $49,000 obligation to the state welfare department for past            child support.   He is also described as  having over $30,000            in  outstanding loans from four family members, apparently to            help pay  for legal  expenses.  (To  what extent  these loans            covered  such  reimbursable  matters  as  bail  bond  is  not            indicated.)                                            -5-            proceeds),5 these  would fall  well short  of overcoming  the            reported deficit in his personal finances.                 Nonetheless,   as  indicated  by   the  reference  in               3622(a)(3)  to  "earning   capacity,"  a  defendant's  future            ability to  pay is  part of the  equation.   And petitioner's            employment history reflects a  fair degree of  accomplishment            and aptitude.    He operated  his  own business  for  several            years.   He  thereafter  served as  a  motor coach  operator,            earning praise as a "valued employee."  And he simultaneously            served on the  executive board of the transit  union, helping            to negotiate labor agreements and "provid[ing] the leadership            and  counsel  necessary  to the  survival  of  the bargaining            unit."    Given  this  record,  and  notwithstanding  several                                            ____________________            5.  The  government had recommended a fine  of $20,000 on the            ground that  such figure corresponded to  the then-prevailing            price for a  kilogram of cocaine (the amount  involved in the            sale).    The  court  agreed  that  such  recommendation  was            "proper."  Regardless of the  share of the proceeds  actually            retained  by petitioner, such  action is consistent  with the            "need  to deprive the defendant of illegally obtained gains."            18 U.S.C.   3622(a)(7).                   Relying on United States v. Wells Metal Finishing, Inc.,                            _____________    ___________________________            922 F.2d 54, 58 (1st  Cir. 1991), the government now contends            that  the court's action also constituted an implicit finding            that petitioner had  access to undisclosed  assets.  We  need            not decide this matter.   Even if the government were correct            in this  regard, but cf.  United States v. Rowland,  906 F.2d                             _______  _____________    _______            621,  624 (11th  Cir. 1990)  (finding  of undisclosed  assets            "must  be reasonably  supported by  probative evidence"),  it            would matter little.  The  government acknowledges that it is            unclear what portion of the proceeds  was paid to petitioner.            And  given the  government's commendably candid  portrayal of            petitioner,  at sentencing,  as "a  low-level  member of  the            distribution chain," it  is fair to infer that  his share was            less than  substantial.  Even  if he retained access  to such            funds, therefore, that fact would make little difference.                                         -6-            countervailing factors,6 the  district court could reasonably            have believed that petitioner had  "at least a hope" of being            able to pay the fine imposed.  United  States v. Mahoney, 859                                           ______________    _______            F.2d   47,  52  (7th  Cir.  1988)  (restitution  order  under            similarly worded statute).                    It is also  noteworthy that petitioner was facing a fine            of up to $2,000,000.   The imposition of a fine  1/100th that            size  obviously reflects  an  appreciation  of his  financial            status.  See,  e.g., United States  v. Pilgrim Market  Corp.,                     ___   ____  _____________     _____________________            944 F.2d 14,  22-23 (1st Cir. 1991).   More generally,  it is            not disputed that the fine here was fully consistent with the            other     3622(a) factors--particularly  the  "nature of  the            offense"   and  (as  mentioned)  the  "need  to  deprive  the            defendant  of illegally obtained  gains."  We  therefore find            that  the sentencing  court acted  within  its discretion  in            imposing the $20,000 fine.  See, e.g., United States v. Levy,                                        ___  ____  _____________    ____            897  F.2d 596,  597, 599  (1st Cir. 1990)  (upholding $15,000            fine imposed pursuant  to   3622(a)  even on assumption  that            defendant was then "penniless").                   Affirmed.                 ________                                            ____________________            6.  Petitioner is reported to have left school (in Israel) in            the 7th or 8th grade.   While he speaks English well, he  can            read it only "a little."  In the aftermath of a  work injury,            he suffers from recurring (but non-disabling) back pain which            requires daily  medication.  And  he is now  approximately 57            years of age.                                          -7-
