
USCA1 Opinion

	




          April 7, 1993                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 93-1207                                     ADAN SALAZAR,                                Plaintiff, Appellant,                                          v.                              UNITED STATES OF AMERICA,                                 Defendant, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                     [Hon. Francis J. Boyle, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                              Torruella, Cyr and Boudin,                                   Circuit Judges.                                   ______________                                 ____________________            Adan Salazar on brief pro se.            ____________                                 ____________________                                 ____________________                      Per  Curiam.   Adan  Salazar  appeals the  district                      ___________            court's  denial  of  his request  to  vacate  or provide  for            installment payments of a stand committed fine imposed on him            in  1987 after  he pled  guilty to  conspiring to  distribute            cocaine and possessing with intent to distribute cocaine.  We            affirm.                      In a letter,  Salazar asked the  district court  to            vacate his  committed  fine,  or to  permit  its  payment  in            installments while he  was on  parole.  He  asked for  relief            from the fine because he had been scheduled to be released on            parole, but his parole  had been made contingent on  the fine            being paid or "otherwise  disposed of by law."   Salazar told            the court  that, given his earning  power while incarcerated,            he  could not pay the fine.  Given his allegedly poor health,            he also suggested that the fine  "flirt[ed] on the rim of the            Eighth Amendment ban on Cruel or Unusual Punishment."                       The district court  treated Salazar's  letter as  a            motion to  correct a sentence under  Fed. R. Crim. P.  35 and            denied it as untimely.  The version of Rule 35  applicable to            Salazar, whose offenses were committed in 1984, provided that            a  court could correct an "illegal sentence" at any time, but            that  it could  correct  a sentence  "imposed  in an  illegal            manner"  only within 120 days after the date of sentencing or            within  120  days  after  the  date  of  the  last  appellate            disposition upholding the judgment of conviction.  The  court            found  that Salazar's fine was  not an illegal sentence since            it was not "ambiguous, contradictory,  incomplete, uncertain,            or unauthorized",  nor was  it "in  excess  of the  statutory            maximum allowable for the  charges [or] in conflict  with any            applicable law."    Given Salazar's  allegation that  "proper            consideration [had]  not [been] given  to his ability  to pay            the fine,"  the court concluded that  Salazar was challenging            the manner in which  his sentence had been imposed.   Because            his  challenge had not been brought  within the requisite 120            days, it denied his request for relief.                      In its decision,  the district  court determined  a            purely  legal question  -- whether  the fine was  an "illegal            sentence" which could  be corrected  at any  time under  Rule            35(a).   Given Salazar's argument to the court that presently                                                                _________            he  could not pay the fine  and the court's position that the            fine had  been within the statutory maximum  and not contrary            to other law  when imposed, we interpret  the court's opinion            to  signify that a fine,  which was legal  when imposed, does                                      _____________________________            not become  illegal simply  because the defendant  cannot pay            the  fine when it comes due.  The only case on point which we            have found supports the court's conclusion.  In United States                                                            _____________            v. Blanton, 739 F.2d  209 (6th Cir. 1984), the  Sixth Circuit               _______            considered whether a district court could vacate a fine as an            "illegal sentence" where  the defendant had the  means to pay            the fine at the time it was imposed, but did not at  the time            the fine was due.   It found that the  defendant's subsequent            inability  to pay  the  fine would  not  render the  fine  an            illegal sentence  for Rule  35 purposes since,  when imposed,                                         -3-            the   fine  had   been   authorized  by   "the  judgment   of            conviction."1  Id. at 211-12.                              ___                      Although the district  court's decision has support            in precedent, we would  not confine the analysis to  Rule 35.            We think that Salazar's request  could also have been treated            as a  28 U.S.C.   2255  motion, which is not  subject to Rule            35's time limitations.   See, e.g., United States v. Santora,                                     ___  ____  _____________    _______            711 F.2d 41, 42 (5th Cir. 1983) ("[m]indful of the liberality            accorded pro se filings, we . . . construe [defendant's] ill-                     ___ __            styled  Rule  35 pleading  as a  request  for relief  under              2255").   Accordingly, we  proceed to resolve  the merits  of            Salazar's claim.                        Salazar  seems  most concerned  with  the committed            nature of  his fine in light of his impending parole.  To the            extent  he believes that he  will remain in  prison until the            fine is paid, and  that he will never obtain  release because                                            ____________________            1.  In Blanton,  the district  court had determined  that the                   _______            fine was an  "illegal sentence" which  could be corrected  at            any time under Rule 35(a).   Once the defendant had lost  the            means  to pay the fine, the court reasoned, it became illegal            under  Supreme  Court  law  forbidding the  incarceration  of            persons  solely because  they could  not pay  their committed            fine.   But  the  Sixth  Circuit  noted  that  that  law  was            inapplicable   since   the   defendant   was   not   actually            incarcerated.   Although  Salazar is  presently incarcerated,            the reasoning in the Blanton case applies nonetheless because                                 _______            Salazar  will not  remain incarcerated if  he cannot  pay the            fine.  If shown to be indigent, Salazar will be released from            prison.   See 28  U.S.C.    3569 (a  prisoner may  obtain his                      ___            discharge without  paying his committed fine  by showing that            he  is an  indigent and by  taking an  oath to  that effect).            Thus, Salazar's position  is essentially the same as  that of            the defendant in Blanton.                               _______                                         -4-            his  earning power in prison is too  low to permit him to pay            the fine  in his lifetime, he  need not worry.   Upon showing            that he is  indigent, he may obtain his discharge  even if he            has not paid his fine.  See 28 U.S.C.    3569, supra footnote                                    ___                    _____            1.                        Salazar  also  appears  to  be  alleging  that  the            committed portion of  the fine  was illegal at  the time  the            fine was imposed because  he could not pay  the fine at  that            time.  As a general matter, courts have long been regarded as            having the authority to  impose committed fines.   See United                                                               __________            States  v. Estrada de Castillo,  549 F.2d 583,  585 (9th Cir.            ______     ___________________            1976)  (Hufstedler, J.,  concurring  specially).    The  only            qualification was  that a prisoner could not  be confined for            not  paying a  fine  if  it  was  his  indigence  alone  that            prevented him  from paying the fine.   See Tate v. Short, 401                                                   ___ ____    _____            U.S.  395,  397-98  (1971)  (equal  protection  violation  to            confine a person solely because he did  not have the means to            pay  a fine); Williams v. Illinois, 399 U.S. 235, 240-41, 244                          ________    ________            (1970)  (equal protection  violation  to  extend  a  person's            prison term  solely because indigency made  it impossible for            the person to pay a fine).  Because defendants sentenced both            to  a prison  term  and  a  committed  fine  could  obtain  a            discharge  of the  committed  portion of  the  fine under  28            U.S.C.    3569 when their  prison term ended,  they have been            found to have  no standing to challenge the committed portion                                         -5-            of the fine on the basis of alleged indigence as  of the time                                                          _______________            the fine  was imposed.  See, e.g., United States v. Levy, 897            ______________________  ________________________    ____            F.2d  597, 598 (1st Cir. 1989) (so holding and citing similar            cases  from  other   circuits).    Thus,   Salazar's  alleged            indigency at the  time of sentencing provides  no basis under            the Constitution for challenging his committed fine.                          Nor was the district court required by statute to            consider  Salazar's ability  to pay  the fine  at sentencing.            Salazar's  offenses were committed  before December 31, 1984.            At  that time, 18 U.S.C.    3565, relating  to the collection            and payment  of  fines  and  penalties,  did  not  require  a            sentencing court  to consider  ability to  pay in  imposing a            fine.   The Criminal  Fine  Enforcement Act  of 1984  amended            section 3565 to permit the imposition of committed fines only            if the  court found "by  a preponderance  of the  information            relied  upon in imposing sentence  that the defendant has the            present ability to pay a  fine or penalty."  See 18  U.S.C.                                                           ___            3565(a)(1) (now repealed).   But it applied only to  offenses            committed  after December 31, 1984.   See Publ.  L. 98-596,                         _____                      ___            10,  98 Stat. 3134,  3138.  Likewise,  18 U.S.C.    3622 (now            repealed), which specifically required  a sentencing court to            consider  a  defendant's   "income,  earning  capacity,   and            financial resources" before imposing  a fine, applied only to            offenses committed after December  31, 1984.  Id.   Under the                                                          ___            law applicable to Salazar,  therefore, the district court had                                         -6-            no statutory obligation to consider Salazar's ability to pay.            See United States v.  Wilfred American Educational Corp., 953            _________________     __________________________________            F.2d 717, 719 &  n.1 (1st Cir. 1992) (summarily  dismissing a            corporation's  claim that imposition of the maximum statutory            fine  was  invalid under  18  U.S.C.    3622(a)  because  the            sentencing court  had not considered  its ability to  pay the            fine  since the conduct for  which the fine  had been imposed            had occurred before December 31, 1984).                      Indeed,  before the  Criminal Fine  Enforcement Act            (and  thereafter the Sentencing Guidelines) became effective,            a  district  court  had  very broad  discretion  in  imposing            sentences as long as they  were within the statutory maximum,            and  sentences within  the statutory  maximum were  virtually            unreviewable on appeal.   See H.R. Rep. No. 906,  98th Cong.,                                      ___            2d  Sess., 1984  U.S.C.C.A.N 5433  passim (commenting  on the                                               ______            changes the  Criminal Fine  Enforcement Act  would make in  a            sentencing  judge's  discretion,  particularly  respecting  a            defendant's ability to pay);  United States v. Dominguez, 951                                          _____________    _________            F.2d  412,  416  (1st   Cir.  1991)  (on  appeal,  appellants            challenged  a fine  which was  within the  statutory maximum,            claiming  that they  were  indigent; this  court stated  that            "[t]hat  matter . . . is for  the district court to take into            account.  We cannot review, in that respect, a pre-Guidelines            sentence."),  cert. denied,  112 S.  Ct. 1960  (1992); United                          ____________                             ______            States v. Gomez-Pabon, 911 F.2d 847, 862 (1st Cir. 1990) ("In            ______    ___________                                         -7-            a pre-Guidelines  case, the  sentencing judge has  very broad            discretion in  determining  the appropriate  punishment in  a            particular  situation.   .  .  .  An   appellate  court  will            ordinarily not review a  sentence unless it exceeds statutory            limits or 'is so disproportionate to the offense for which it            was   imposed  that   it   constitutes   cruel  and   unusual            punishment.'") (citations omitted), cert.  denied, 111 S. Ct.                                                _____________            801  (1991).   Our  pre-Guidelines  cases  recognized only  a            "narrow exception" to this general rule.  We would overturn a            sentence  if  the  sentencing   court  had  taken  "a  rigid,            mechanistic approach" to  sentencing, and had  not considered            "the individual  mitigating circumstances" of  the defendant.            United  States v. Bernal, 884 F.2d 1518, 1520 (1st Cir. 1989)            ______________    ______            (citation omitted).           The      presentence     report            indicates that Salazar's fine of $100,000 was well within the            applicable statutory maximum  ($250,000).  Accordingly,  even            if  Salazar had been indigent  at the time  he was sentenced,            this court would have  no basis for reviewing or  overturning            his  fine unless  the court  had sentenced  him in  a "rigid,            mechanistic" fashion.    The record  before  us gives  us  no            reason to  think that the sentencing  court imposed Salazar's            fine without considering his individual circumstances.                        Salazar pled  guilty  to cocaine  charges, and  the            government recommended  the maximum  term of twenty  years in            prison  and the maximum fine of $250,000.  The plea agreement                                         -8-            was non-binding and  gave Salazar  the right to  argue for  a            lesser   sentence.    He  appears  to  have  done  so.    His            submissions to  this court  include a  letter written  by him            which is dated January  21, 1987, the date he  was sentenced.            In the letter, Salazar told  the court that he did not  own a            house or other property and that the value of his possessions            was  less   than  $10,000.    Salazar's   presentence  report            indicated  that a year  or two before  sentencing Salazar had            received $40,000 for selling  a house which he had  owned for            ten years.   The presentence report  confirmed that Salazar's            known  assets were under  $10,000.  It  reported that Salazar            had been employed regularly before his arrest and that he had            indicated that  he earned $7/hour when employed.   It further            noted that drug records showing sales of over $1 million were            found  in an  apartment  which Salazar  had lived  in shortly            before his co-defendants were  arrested and which Salazar had            vacated shortly thereafter, although  the records were not in            Salazar's handwriting.   At  sentencing,  the district  court            imposed  a  fine of  $100,000,  less than  half  the $250,000            permitted by  the statute and recommended  by the government.            According to  Salazar, the  district court chose  that amount            because Salazar's co-defendants had stated that they had paid            him $100,000 for cocaine in 1984.                        From the above, it appears that the court  did take            into account  the  particular  facts  relating  to  Salazar's                                         -9-            situation.  It did not impose the maximum fine, but imposed a            fine reflecting  the  amount of  Salazar's illegal  proceeds.            Although, obviously, money received  by Salazar in 1984 might            well have no longer been in his possession as of 1987 when he            was sentenced, he had  also received $40,000 in 1985  or 1986            for  the sale  of his  house and  he appeared  to be  able to            obtain employment on a regular basis.  In addition, the court            reasonably might have believed  that the drug records showing            sales  in excess of $1 million found in an apartment recently            occupied  by Salazar,  though  not in  Salazar's handwriting,            reflected Salazar's cocaine receipts.                       In light of  the above, it is  clear that Salazar's            fine did not violate the Eighth Amendment prohibition against            cruel and unusual  punishment.  See United  States v. Pilgrim                                            ___ ______________    _______            Market Corporation, 944 F.2d  14, 22 (1st Cir. 1991)  (a fine            __________________            of less than  one-half the statutory maximum and one-half the            government's  recommended fine  was  not excessive  under the            Eighth Amendment);  United States  v. Bernal, 884  F.2d 1518,                                _____________     ______            1520-21 (1st Cir. 1989) (a 30-year prison sentence imposed on            a  62-year old defendant was not cruel and unusual punishment            because it  was within  the statutory maximum  established by            the legislature as  appropriate punishment for the  offense);            United  States  v.  Dixon,  538  F.2d  812,  814  (9th  Cir.)            ______________      _____            (imposing  a  committed  fine   was  not  cruel  and  unusual            punishment), cert. denied, 429 U.S. 959 (1976).                          ____________                                         -10-                      The judgment of the district court is affirmed.                      ______________________________________________                                         -2-
