June 27, 1994     UNITED STATES COURT OF APPEALS
                    FOR THE FIRST CIRCUIT

                                        

No.  93-1621

                    OSCAR ANIBAL TILLETT,
                    Plaintiff, Appellant,

                              v.

                  UNITED STATES OF AMERICA,
                     Defendant, Appellee.

                                         

                         ERRATA SHEET

   The opinion of this Court issued on May  24, 1994 is amended
as follows:

   Footnote 1 should read as follows.

   1.  We note a problem in the magistrate's report.  The final
sentence of the  report states that  "[f]ailure to file  specific
objections in a timely  manner constitutes a waiver of  the right
to review by the  district court."  In a footnote, the magistrate
cites Park Motor Mart, Inc. v. Ford Motor Co., 616  F.2d 603 (1st
                                           
Cir. 1980), and United States v. Valencia-Copete, 792 F.2d 4 (1st
                                              
Cir.  1986).   The  final  sentence  in the  magistrate's  report
accurately  states  our  holding  in  Park Motor,  but  does  not
                                              
encompass  our holding  in  Valencia-Copete.   In  that case,  we
                                         
directed all  magistrates to  include in their  reports a  notice
that failure to timely object to a  report would waive "the right
to  appeal the  district  court's  decision."    792  F.2d  at  6
                                         
(emphasis  added).    We  note  that  a  different  Rhode  Island
magistrate's   report  included   in  the  record   is  similarly
deficient.    Accordingly, we  remind  all  magistrates in  Rhode
Island that their reports must include the statement that failure
to  file specific objections to reports in a timely manner waives
both the right  to review by the district court  and the right to
appeal the district court's decision.

May 24, 1994
                    [NOT FOR PUBLICATION]

                UNITED STATES COURT OF APPEALS
                    FOR THE FIRST CIRCUIT
                                        

No. 93-1621

                    OSCAR ANIBAL TILLETT,

                    Plaintiff, Appellant,

                              v.

                  UNITED STATES OF AMERICA,

                     Defendant, Appellee.

                                        

         APPEAL FROM THE UNITED STATES DISTRICT COURT

               FOR THE DISTRICT OF RHODE ISLAND

         [Hon. Ernest C. Torres, U.S. District Judge]
                                                    

                                        

                            Before

                 Torruella, Boudin and Stahl,
                       Circuit Judges.
                                     

                                        

   Oscar Anibal Tillett on brief pro se.
                       
   Edwin J. Gale,  United States Attorney,  Margaret E.  Curran
                                                               
and Kenneth  P. Madden,  Assistant  United States  Attorneys,  on
                    
brief for appellee.

                                        

                                        

                            - 2 -

                            - 2 -

          Per Curiam.      Oscar Anibal  Tillett appeals  the
                    

dismissal of his motion under 28 U.S.C.   2255.  We affirm.  

          In this case, the magistrate recommended dismissing

Tillett's section 2255 petition on the ground that he had not

excused a double procedural default  -- his failure to object

at sentencing to  a fine imposed on him by  the court and his

failure  to  appeal  his  sentence.1   Tillett  submitted  an

objection to  the  magistrate's report  alleging  ineffective

assistance of counsel  as cause  for his failure  to file  an

appeal.   Tillett said that he had asked his attorney to file

a direct appeal, that his attorney had promised to do so, and

that Tillett later discovered that  his attorney had not done

so.   The  district court  accepted the  magistrate's report,

without referring specifically to Tillett's objection.  

                    

1.   We note a problem in the magistrate's report.  The final
sentence  of  the  report  states  that  "[f]ailure  to  file
specific objections  in a timely manner  constitutes a waiver
of  the  right  to  review by  the  district  court."   In  a
footnote, the magistrate cites Park Motor Mart,  Inc. v. Ford
                                                             
Motor Co., 616 F.2d 603 (1st Cir. 1980), and United States v.
                                                          
Valencia-Copete,  792 F.2d  4  (1st Cir.  1986).   The  final
               
sentence in  the magistrate's  report  accurately states  our
holding  in Park Motor, but does not encompass our holding in
                      
Valencia-Copete.   In that case, we  directed all magistrates
               
to include in their  reports a notice that failure  to timely
object  to  a report  would waive  "the  right to  appeal the
                                                             
district court's decision."  792  F.2d at 6 (emphasis added).
                         
We  note that  a different  Rhode Island  magistrate's report
included in the record  is similarly deficient.  Accordingly,
we remind  all magistrates in Rhode Island that their reports
must  include the  statement  that failure  to file  specific
objections  to  reports in  a timely  manner waives  both the
right to review by the district court and the right to appeal
the district court's decision.

                             -2-

          On appeal, Tillett has  not objected to the court's

failure to  address  his ineffective  assistance  of  counsel

claim,  and he  has  not presented  that claim  to  us as  an

appellate ground  for relief.  Indeed,  his initial appellate

brief says  nothing about ineffective assistance of counsel.2

It is  well  established  that  arguments not  raised  in  an

initial  appellate brief  are generally  deemed waived.   See
                                                             

Playboy Enterprises v.  Public Service  Commission of  Puerto
                                                             

Rico, 906 F.2d 25, 40 (1st Cir.), cert.  denied, 498 U.S. 959
                                               

(1990).  

          We  see no  reason why  we  should not  follow that

principle  here.  On this record, it is abundantly clear that

Tillett has  long known that he  had the right  to appeal his

sentence  and that it was  his failure to  appeal that barred

him from obtaining collateral relief.  It is also clear that,

before bringing  the present appeal, Tillett  must have known

                    

2.  Tillett's   reply  brief  makes   only  the  inconsistent
assertion  that his counsel never  even told him  that he had
the  right to appeal  his sentence and  that he  did not know
that  he  could  appeal  after   having  pled  guilty.    The
sentencing  transcript  shows  that  the  court  itself  told
Tillett at sentencing  that he  had the right  to appeal  his
sentence, and  that counsel  would be appointed  to represent
him  if  necessary.    Thus,  the  new  claim  on  appeal  is
conclusively refuted  by the record,  and does not  provide a
basis  for relief.  We  note that Tillett's  reply brief also
suggested that he was in  a state of shock at  his sentencing
because  an agreement to treat the charges against him in New
York  and Rhode  Island  in the  same  proceeding had  fallen
through.  This is a new claim which was not  presented to the
district court, and so  we decline to consider it  on appeal.
See United States v.  Ocasio-Rivera, 991 F.2d 1, 3  (1st Cir.
                                   
1993). 

                             -3-

that  ineffective assistance  by his  attorney was  a legally

significant  factor  in  determining  his  right   to  obtain

collateral relief.  As already  noted, the court told Tillett

at sentencing that he had the "right" to appeal his sentence.

Tillett knew by  the time he filed  a previous postconviction

motion for relief in 1991 that his  attorney had not done so.

The  dismissal of that motion  was grounded on  the fact that

Tillett  had not  filed an  appeal.   Tillett then  filed his
                

section 2255 action with the help of a prison paralegal.  The

form  he used stated that  failure to allege  all grounds for

relief could  mean that  those grounds would  be barred  from

being  presented  at a  later  date;  it specifically  listed

"denial of  effective assistance  of counsel" and  "denial of

right of appeal"  as commonly cited grounds  for section 2255

relief.  Furthermore, the magistrate's report made clear that

Tillett's unexplained failure to  appeal his sentence was one
                     

reason why collateral relief was not available.  Against this

backdrop, we  need not  look beyond  the  issues Tillett  has

presented to us on  appeal to decide his case.   Accordingly,

we conclude  that Tillett has voluntarily  waived any Bonneau
                                                             

claim he  may have had.   See Bonneau  v. United States,  961
                                                       

F.2d 17,  23 (1st Cir. 1992)  (where there was no  doubt that

appellant  was deprived of his right of appeal because of the

dereliction of counsel, a section 2255 petitioner had a right

                             -4-

to take a direct appeal without first showing that the issues

on appeal would be meritorious).

          In the interests of judicial economy, therefore, we

proceed to evaluate  the merits of  his section 2255  claims,

and  affirm  the district  court  because  those claims  lack

merit.    The sentencing  court's  failure  to make  specific

findings of fact in support of its decision to impose a  fine

provides  no basis  for  granting collateral  relief in  this

circuit.   See United States  v. Savoie, 917  F.2d 1057, 1064
                                       

(1st Cir. 1993).  The sentencing  transcript also makes clear

that  the court did consider Tillett's ability to pay a fine.

The  court acknowledged that a fine of $20,000 per count (for

a total  of $60,000 on the three counts to which Tillett pled

guilty)  seemed "somewhat  out  of line"  with the  financial

statement  in the presentence report.   But it suggested that

other facts given  in the report indicated that the financial

statement did not accurately reflect Tillett's actual assets.

          Contrary to what  Tillett suggests, the presentence

report did not conclude that he had no ability to pay a fine.

Moreover,  it contains  sufficient  evidence  to support  the

court's  imposition of a total  fine of $60,000.   The report

stated that Tillett had admitted that he had received $17,225

for heroin  sold to a single  Drug Enforcement Administration

agent in Rhode Island in the nine-month period  preceding his

arrest.   The  agent  gave an  additional  $2,500 to  one  of

                             -5-

Tillett's   co-defendants,  Luis   Cepeda,  who,   the  court

determined  at  sentencing,  was  a runner  for  Tillett  who

collected money  from heroin purchasers  on Tillett's behalf.

The presentence report also indicates that, two months before

his  arrest,  Tillett  had  arranged  to  sell  heroin  "that

weekend"  to the  DEA agent  for $35,000-$37,500,  suggesting

that  Tillett already had the heroin available, or that he at

least had  ready access to it.   The sale did  not go through

because  the government  backed  out;  it  did  not  want  to

jeopardize  a  separate  investigation  into  Tillett's  drug

trafficking activities  in New  York.3  The  court reasonably

could have inferred that  Tillett eventually sold that heroin

to other  parties and that he  had received up  to $37,500 in

illegal  drug sale  proceeds  in the  two months  immediately

preceding  his   arrest.    Thus,  the   information  in  the

presentence report  permitted the  court to conclude  that in

the  nine-month  period  preceding  Tillett's  arrest  he had

received up to $57,225  in proceeds from the sale  of heroin.

As  the  report says,  Tillett also  had  over $3,000  in his

checking and savings accounts,  and so we have no  doubt that

the  court did not abuse  its discretion in  imposing a total

fine  of $60,000 on Tillett, and in not deferring its payment

until after his release from prison.  

                    

3.  The presentence report noted that Tillett had pled guilty
in  New York  district court  to one  count of  conspiracy to
possess with intent to distribute heroin.  

                             -6-

          The district court knew that Tillett was engaged in

drug trafficking in both  Rhode Island and New York,  and the

presentence report does not suggest that Tillett's activities

were limited  to a few, isolated sales  of heroin.  The court

concluded at sentencing that Tillett was the organizer of the

drug conspiracy in  which he  was involved, and  that he  had

recruited  others to join that  conspiracy.  In addition, the

presentence report indicated  that Tillett had been  arrested

before on the charge that he had possessed heroin with intent

to deliver.  Accordingly, the court would have been justified

in  concluding  that  the  specific  sums  mentioned  in  the

presentence report,  which reflected  only several actual  or

potential  sales to a single  DEA agent in  Rhode Island, did

not  reflect the  total amount  of Tillett's  illegal income.

Furthermore,  before  his  arrest,  Tillett  had  had  steady

employment  with  the same  employer  for 17  years,  had net

monthly  income of  $2,240  and monthly  expenses of  $1,492,

leaving him with  a net monthly surplus of  $748.  From this,

the court could have inferred that Tillett's income from drug

sales was  not  used for  his  living expenses  (and  Tillett

suggests as much in his reply brief).  

          The financial statement  in the presentence  report

showed that Tillett's combined checking and  savings accounts

contained  some  $3,136,  that  his  liabilities  were   some

$11,523, so that he had a negative net worth of approximately

                             -7-

$8,386.  In view of the facts recited above, however, and the

fact  that Tillett had retained counsel to represent him, the

court  could  reasonably  have  concluded that  the  sums  in

Tillett's  bank accounts reflected only his legitimate income

and not what his total financial resources were.  Under these

circumstances, and  given the fact  that the court  imposed a

fine  at  the  lower end  of  the  applicable  fine range  of

$12,500-$1,000,000,  we  think  that  there   was  sufficient

evidence  to support  the  court's imposition  of  a fine  of

$20,000 per count on Tillett.

          Affirmed.
                   

                             -8-
