
USCA1 Opinion

	




          March 30, 1993    UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 92-1898                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                  GABRIEL PREZIOSO,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                     [Hon. Francis J. Boyle, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                              Torruella, Circuit Judge,                                         _____________                           Campbell, Senior Circuit Judge,                                     ____________________                              and Stahl, Circuit Judge.                                         _____________                                _____________________               John F. Cicilline for appellant.               _________________               Margaret  E.  Curran,  Assistant  United   States  Attorney,               ____________________          Lincoln C.  Almond,  United  States  Attorney,  and  Lawrence  D.          __________________                                   ____________          Gaynor,  Assistant  United States  Attorney,  were  on brief  for          ______          appellee.                                 ____________________                                    March 30, 1993                                 ____________________                    TORRUELLA, Circuit  Judge.   This appeal arises  out of                               ______________          the calculation  of appellant's sentence under  the United States          Sentencing Guidelines ("U.S.S.G.").  Appellant  contends that the          district  court erred  in enhancing  his sentence  under U.S.S.G.            4A1.1(d) based on an outstanding  fine for a previous  offense.          Because we agree with the district court that the enhancement was          warranted in this case, we affirm.                                      THE FACTS                                      THE FACTS                                      _________                    Appellant  pled  guilty  to unlawful  possession  of  a          firearm  by a  convicted  felon  in  violation  of  18  U.S.C.             922(g)(1).    The  police   found  the  firearm  while  searching          appellant's home for evidence of illegal gambling.  Appellant had          several  prior felony convictions for  gambling.  At  the time of          the  search, appellant still  owed a $5000 fine  for one of these          convictions.                    The presentence  report for the present  conviction set          the  base  offense level  at 12,  but  subtracted two  levels for          acceptance  of   responsibility.    The  report   then  made  two          adjustments for criminal  history.  First,  the report added  two          levels  for appellant's prior state gambling convictions pursuant          to  U.S.S.G.     4A1.1.   Second,  the  report  added two  levels          pursuant to  U.S.S.G.     4A1.1 because  appellant  was  under  a          criminal  justice   sentence,  the  unpaid  fine,   for  a  prior          conviction when  he committed  the present  offense.   These  two          adjustments placed appellant at criminal history level III, which          together with the base offense level of 10, yielded an applicable                                         -2-          range of 10-16 months.                      Between the time of offense and the time of sentencing,          the base offense level for the felon in  possession crime rose by          two  levels.   In such  a situation,  it is  proper to  apply the          sentencing guidelines  applicable at the time  of offense, rather          than  the   normally  applicable   guidelines  at  the   time  of          sentencing, in order  to avoid  violations of the  Ex Post  Facto                                                             ______________          Clause  of the  Constitution.   Id.    1B1.11.   The report  thus                                          ___          relied  on  the guidelines  as  they stood  at  the  time of  the          offense, not at the time of sentencing.                      Appellant  objected  to  the  calculation  of  criminal          history on two grounds.   First, he  argued that the unpaid  fine          was  not a criminal justice sentence for the purposes of U.S.S.G.            4A1.1(d).  Appellant  relied on an amendment to  the commentary          that became effective in November 1991 as support; he argued that          this  amendment  should  have  retroactive effect.    Second,  he          contended  that  the calculation  violated  the  Equal Protection          Clause,  in that treating a  fine as a  criminal justice sentence          disfavors indigent defendants who cannot pay fines quickly.   The          district court  judge disagreed  on each argument,  and sentenced          appellant to 13 months  imprisonment, a $5,000 fine, and  2 years          of supervised release.   Appellant revives  his objection to  the          criminal history calculation in this appeal.                                    LEGAL ANALYSIS                                    LEGAL ANALYSIS                                    ______________                    In 1990, we decided United States  v. Gallego, 905 F.2d                                        _____________     _______          482  (1st Cir.  1990).    There  we  held  that  "the  sentencing                                         -3-          guidelines are perfectly clear that a fine is a 'criminal justice          sentence'"  and  therefore  triggers   the  U.S.S.G.     4A1.1(d)          enhancement.    Id.  at 483.    In  November,  1991, a  so-called                          ___          clarifying amendment to the application notes to that section was          added, stating that "a sentence to  pay a fine, by itself," would          not trigger the enhancement.  We must determine whether, in light          of our circuit  precedent to  the contrary, we  should apply  the          1991  amendment   retroactively  to  the  1990   version  of  the          guidelines in this case.                    At  the   outset,  we  note  that   we  normally  apply          amendments retroactively  only if  they clarify a  guideline, but          not if they substantively  change a guideline.  Isabel  v. United                                                          ______     ______          States, 980 F.2d 60,  62 (1st Cir. 1992).  The  first step in our          ______          analysis, then, is to determine whether the amendment constitutes          a clarification or a substantive change.  We recognized in Isabel                                                                     ______          that  these categories were unclear,  id., and as  is usually the                                                ___          case, there are factors supporting either side.                    On   the  one  hand,   the  United   States  Sentencing          Commission  labeled  the  amendment  as a  clarification  of  the          meaning of a criminal justice sentence.  U.S.S.G. App. C  at 206,          208.   Because  the 1990  guideline did  not say  explicitly that          fines  were   or  were  not  criminal   justice  sentences,  this          characterization does  not contravene  any specific  provision of          the guidelines themselves.                    On the other  hand, our  holding in  Gallego weighs  in                                                         _______          favor of  characterizing the  amendment as a  substantive change.                                         -4-          Given  that  holding,  the  amendment  alters  the  guideline  as          interpreted  by the  First Circuit.   Furthermore,  any amendment          that  is  inconsistent  with  the  clear  meaning  results  in  a          substantive  change,  regardless of  the  Sentencing Commission's          characterization.  United States v.  Ruiz Batista, 956 F.2d  351,                             _____________     ____________          353 (1st Cir.)  ("if there was no ambiguity .  . . the Commission          could not change  [the] meaning  retroactively by  using a  magic          word, clarification"), cert. denied,  113 S. Ct. 105 (1992).   In                                 ____________          Gallego  we held  it to  be "perfectly  clear" that  a fine  is a          _______          criminal justice sentence,  as that  term is used  in U.S.S.G.             4A1.1.  The contrary amendment  therefore would seem to represent          a substantive change, rather than a clarification.                    Given  our  holding  in   Gallego,  we  rule  that  the                                              _______          amendment  was  not  a  clarification.    Rather,  the  amendment          presented  a change  in the  meaning of  a clear  and unambiguous          guideline.  As  the amendment was not a clarification,  it is not          entitled to retroactive effect.   Accordingly, the district court          did not err in sentencing appellant.1                    We  turn  now  to  appellant's  constitutional  claims.          Appellant  insists that  he  is being  penalized  because he  was          paying his  fine incrementally  according to a  state established          schedule.  According to  appellant, the Fourteenth Amendment does          not permit criminal penalties due  to a defendant's inability  to          pay a fine.                                        ____________________          1  We will, of  course, apply the commentary in future  cases not          involving retroactivity.                                           -5-                    We disagree with appellant's analysis.  He is not being          penalized  for nonpayment  of  a  fine.    Rather,  he  is  being          penalized  because  that fine  is not  yet  due and  payable, and          therefore  appellant  is  still  subject to  a  criminal  justice          sentence.  We have rejected similar claims on these very grounds.          Gallego,  905 F.2d at 483 n.2.   Furthermore, appellant is not an          _______          indigent, and therefore  is not  entitled to  the protections  he          claims.   See  Bearden v.  Georgia, 461  U.S. 660,  664-69 (1983)                    ___  _______     _______          (distinguishing   between   indigents   and    nonindigents   for          constitutional   purposes).    Appellant's  sentence  invokes  no          constitutional concerns.                    We  cannot conclude  without  a respectful  observation          regarding   what  we  perceive  to   be  a  too  often  exercised          prerogative  by  the  Sentencing   Commission,  that  of   making          significant alterations to  the guidelines commentary accompanied          by  a  suggestion  that  the  alteration  is  a  "clarification."          Considering the thin line separating substance from clarification          in this neural area of the law, we believe judicious restraint by          the Commission  would not  only avoid unnecessary  litigation and          the possible violation of constitutional rights, but would add to          the credibility of its action.                      The sentence is affirmed.                                    ________                                         -6-
