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April 29, 1994          [NOT FOR PUBLICATION]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-
