
USCA1 Opinion

	




          June 13, 1994                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ___________________          No.  93-1957                                    UNITED STATES,                                      Appellee,                                          v.                                    GUIDO IMPEMBA,                                Defendant, Appellant.                                 ____________________                                     ERRATA SHEET               The  opinion of  this  Court issued  on  April 29,  1994  is          amended as follows:               In the two sentences  beginning at the bottom of page  3 and          carrying over to the top of page 4, the  following language shall          be deleted:                          "it  is   doubtful  that  the  Maine   court  possessed               jurisdiction  inasmuch as  Impemba  was in  custody  in               Wisconsin.  Moreover,"          These two sentences shall be combined  into one sentence, reading          as follows: "Alternatively, to the extent his motion is viewed as          a habeas petition under 28 U.S.C.   2255, Impemba arguably lacked          standing  to  pursue such  relief  prior  to  expiration  of  his          'noncontingent'   prison   term    and/or   exhaustion   of   his          administrative remedies."        April 29, 1994          [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 93-1957                                    UNITED STATES,                                      Appellee,                                          v.                                    GUIDO IMPEMBA,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                       [Hon. Gene Carter, U.S. District Judge]                                          ___________________                                 ____________________                                        Before                              Torruella, Selya and Stahl,                                   Circuit Judges.                                   ______________                                 ____________________            John  C.  McBride  and  McBride  and   Associates  on  brief   for            _________________       _________________________        appellant.            Jay  P.  McCloskey,  United   States  Attorney,  and  Margaret  D.            __________________                                    ____________        McGaughey, Assistant United States Attorney, on brief for appellee.        _________                                 ____________________                                 ____________________                 Per Curiam.  Guido Impemba appeals from a district court                 __________            order denying his motion  to vacate a pair of  criminal fines            imposed  nearly ten years ago.  For the following reasons, we            summarily affirm under Loc. R. 27.1.                                            I.                 In 1983 and 1984, Impemba participated in a wide-ranging            scheme  to   transport  approximately  twenty-five   tons  of            marijuana  from  Colombia  to   Maine  aboard  the  freighter            "Adina."    He  was later  convicted  on  two  counts of  (1)            conspiracy to possess marijuana with intent to distribute and            (2) conspiracy to import  marijuana.  At sentencing,  held on            December 20,  1984,1 Impemba received  a fifteen-year  prison            term  and  a  $50,000  committed  fine  on  Count  I,  and  a            concurrent  five-year prison  term and  a  concurrent $15,000            committed fine on  Count II.  This  court thereafter affirmed            his conviction (along with those of six of his codefendants).            See  United States v. Cresta,  825 F.2d 538  (1st Cir. 1987),            ___  _____________    ______            cert. denied, 486 U.S. 1042 (1988).            ____________                 In  March  1993, Impemba  filed  the  instant motion  to            vacate  his  fines  in  Maine  district   court.    He  there            complained that the  sentencing court had  imposed the  fines            without considering his financial status.  He further alleged            that he had been  indigent in 1984 and  had remained so  ever            since--with  the  result  that,  because of  the  "committed"            nature  of   the  fines,   he   was  faced   with   "extended            imprisonment" due solely  to his indigency,  in violation  of            constitutional  guarantees.    The  district  judge summarily                                            ____________________            1.  The  government's brief  contains mistaken  references to            1985 as the year of sentencing.             denied this motion  shortly after  its filing.   Five  months            later, in an  independent action in the judicial  district in            which he  was incarcerated, Impemba obtained  relief from the            "committed"  nature of  his  fines.   Based  on his  oath  of            indigency, a magistrate-judge sitting in the Western District            of Wisconsin relieved him "from payment of the committed fine            as a condition of his release from prison."  This order  made            clear, however,  that Impemba  remained obligated to  pay the            fines and  that the government could pursue civil remedies to            obtain payment.   While this  action has mooted  part of  his            motion to vacate,  Impemba on appeal continues to  pursue his            challenge to the validity of the fines themselves.                                         II.                 Impemba  has  not  explained,  and  the  government  has            properly  questioned,   the  jurisdictional  basis   for  his            requested  relief.2  For example, to the extent his motion is            viewed  as one to correct sentence under former Fed. R. Crim.            P. 35(a), it was untimely.   As he is contending not that the            sentence was "illegal," but rather that it was "imposed in an            illegal manner," any  such motion was subject to  the 120-day            filing period specified in Rule 35(b).  Alternatively, to the            extent his motion  is viewed  as a habeas  petition under  28            U.S.C.    2255,  Impemba arguably  lacked standing  to pursue                                            ____________________            2.  Impemba's brief  contains no statement of  subject matter            and appellate jurisdiction,  in violation of Fed. R.  App. P.            28(a)(2).                                          -4-            such relief prior to expiration of his "noncontingent" prison            term  and/or  exhaustion  of  his   administrative  remedies.            United States v. Levy, 897 F.2d 596, 598 (1st Cir. 1990).  In            _____________    ____            any event, any such request would now be moot in light of the            Wisconsin court's action.  Finally,  to the extent his motion            is viewed as a request for remission under former 18 U.S.C.              3573,  the action was plainly  unauthorized.  As explained in            United  States v. Linker, 920 F.2d 1,  1-2 (7th Cir. 1990), a            ______________    ______            version  of  this  statute  permitting a  defendant  to  seek            remission  of a fine was  in existence for  only six weeks in            1987.  A  newer version,  which took effect  on December  12,            1987 and which applies to all fines "irrespective of the date            of imposition,"  permits such  relief only upon  "petition of            the Government."                 Yet  we need  not  resolve these  matters  (nor need  we            address  the government's  related  contention  that  Impemba            waived  the issue by failing  to raise it  on direct appeal),            inasmuch as  the motion  to vacate  is  obviously lacking  in            merit.   Impemba principally relies on a former version of 18            U.S.C.   3565(a)(1) which provided as follows:                  If  the  court  finds  by a  preponderance  of  the                 ___________________________________________________                 information  relied upon in  imposing sentence that                 ___________________________________________________                 the defendant has the present ability to pay a fine                 ___________________________________________________                 or  penalty, the  judgment may  direct imprisonment                 ___________________________________________________                 until the fine or penalty is paid, and the issue of                 _________________________________                 execution on  the judgment shall not  discharge the                 defendant from imprisonment until the amount of the                 judgment is paid.                                         -5-            (Emphasis  added.)   The  crux of  his  argument is  that the            sentencing   court  lacked  any   information  to  support  a            conclusion that he had the "present ability" to pay the fines            in  question.   This contention fails  for the  simple reason            that  the underscored  language  did not  apply to  Impemba's            case.   Added by the  Criminal Fine Enforcement  Act of 1984,            Pub.  L. No.  98-596,    2(2), 98  Stat. 3134,  this language            applied only to "offenses committed after December 31, 1984."            Id.    10, 98 Stat. 3138.   The version of    3565(a)(1) that            ___            governed  Impemba's  case   contained  no  requirement   that            imposition of a committed  fine be dependent on a  finding of            "present ability" to pay.3                 Under  the law  applicable  to  Impemba, therefore,  the            sentencing  court  was  under   no  statutory  obligation  to            consider ability  to pay.   Indeed, before the  Criminal Fine            Enforcement  Act (and  thereafter the  Sentencing Guidelines)                                            ____________________            3.  This earlier version read simply as follows:                 Where the  judgment directs imprisonment  until the                 fine  or  penalty imposed  is  paid,  the issue  of                 execution on the  judgment shall not discharge  the                 defendant from imprisonment until the amount of the                 judgment is paid.                 Impemba  makes  reference  to  two  other  statutes that            specify  various factors  (including ability  to pay)  that a            court  must consider  in imposing a  fine.  See  18 U.S.C.                                                           ___            3622(a), 3572(a).   As  he acknowledges, however,  neither of            these  applied to his case.  Section 3622 was applicable only            to offenses committed  after December 31,  1984.  See,  e.g.,                                                              ___   ____            United States v. Wilfred Amer. Educ. Corp., 953 F.2d 717, 719            _____________    _________________________            n.1 (1st Cir. 1992).  Section 3572 took effect on November 1,            1987.                                          -6-            took effect, a  sentencing court  had virtually  unreviewable            discretion  in  imposing  a  sentence  within  the  statutory            maximum.   See, e.g.,  United States  v. Dominguez,  951 F.2d                       ___  ____   _____________     _________            412, 416  (1st  Cir.  1991)  (summarily  rejecting  allegedly            indigent defendant's challenge to pre-Guidelines fine), cert.                                                                    _____            denied, 112 S. Ct. 1960 (1992).  A "narrow exception" to this            ______            rule permitted the overturning of a sentence "where the facts            indicate that  the court  below adopted a  rigid, mechanistic            approach to sentencing, and failed to consider the individual            mitigating circumstances  of each defendant."   United States                                                            _____________            v.  Jimenez-Rivera,  842  F.2d  545, 548  (1st  Cir.),  cert.                ______________                                      _____            denied,  487  U.S. 1223  (1988).   Yet  the sentence  here is            ______            immune from any such challenge.  The district court  properly            considered the individual circumstances presented--observing,            for  example,   that  Impemba  was  "one   of  the  principal            representatives   of   the  group   anticipating   profit  in            substantial  amounts," and  later rejecting  the government's            recommendation that  consecutive sentences  be  imposed.   We            also note  that Impemba  himself was largely  responsible for            the absence of precise financial  information--having refused            (apparently  on  advice of  counsel)  to  submit a  financial            statement to the probation department in the belief that such            request was an invasion of privacy.                  Affirmed.                 ________                                         -7-
