
USCA1 Opinion

	




          March 3, 1994                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 93-1910                                  LUIS E. GOMEZ-PABON,                                Plaintiff, Appellant,                                          v.                              UNITED STATES OF AMERICA,                                 Defendant, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                  [Hon. Juan M. Perez-Gimenez, U.S. District Judge]                                               ___________________                                 ____________________                                        Before                             Torruella, Boudin and Stahl,                                   Circuit Judges.                                   ______________                                 ____________________            Luis E. Gomez-Pabon on brief pro se.            ___________________            Guillermo  Gil,  United  States  Attorney,  Silvia  Carreno  Coll,            ______________                              _____________________        Assistant  United States Attorney, and Jos  A. Quiles-Espinosa, Senior                                               _______________________        Litigation Counsel, on brief for appellee.                                 ____________________                                 ____________________                      Per Curiam.  Appellant  Luis E. Gomez-Pabon appeals                      __________            from the dismissal of his motion to vacate his sentence filed            under 28  U.S.C.    2255.    Upon  a careful  review  of  the            parties' briefs and the record, we affirm the judgment of the            district  court for essentially the reasons  set forth in the            Report and  Recommendation of  the magistrate  judge and  the            Opinion  and Order denying  appellant's motion to  vacate his            sentence and conviction.                      After  the   report  of   the  magistrate   issued,            appellant raised an additional question:  The stand-committed            fine  part  of  his  sentence  is  unconstitutional   because            appellant lacks  the ability to  pay the fine.   He concludes            that the  fine should  be vacated.   In  the case of  "mixed"            sentences combining  substantial terms  of imprisonment  with            fines imposed upon  prisoners who claim to be impecunious, we            will  not rule upon  the fine's constitutionality  "until the            prisoner has exhausted available administrative remedies,  or            has begun, or is on  the verge of beginning, serving  time in            consequence  of the  fine's nonpayment."    United States  v.                                                        _____________            Levy, 897 F.2d 596, 598 (1st Cir. 1990).            ____                      To  the extent appellant  believes that he  will be            forced to stay in prison until the fine is paid, 18  U.S.C.              3569 (Discharge of an indigent prisoner) provides that upon a            showing of indigency, he may obtain his discharge even though            he has not paid the fine.  Because appellant's release is not            imminent, and since other legal avenues are available to him,            there  is no  reason to  speculate  now about  the course  of            future events.  See Levy, 897 F.2d at 598.                            ___ ____                      Affirmed.                      ________                                         -3-
