
USCA1 Opinion

	




          September 22, 1993    [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 92-2430                                     UNITED STATES,                                      Appellee,                                          v.                                    NERIO ZULETA,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                     [Hon. Ernest C. Torres, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                 Breyer, Chief Judge,                                         ___________                          Selya and Boudin, Circuit Judges.                                            ______________                                 ____________________            Nerio Zuleta on brief pro se.            ____________            Edwin  J.  Gale, United  States  Attorney, and  Zechariah  Chafee,            _______________                                 _________________        Assistant United States Attorney, on brief for appellee.                                 ____________________                                 ____________________                      Per Curiam.  Appellant  Nerio Zuleta pleaded guilty                      __________            to two counts  of an indictment charging  him with possession            with intent  to distribute 500  grams or more of  cocaine and            conspiracy to possess with intent  to distribute 500 grams or            more of cocaine all in violation  of 21 U.S.C.    841(a)(1) &            (b)(1)(B), 846 and 18 U.S.C.   2.  Appellant was sentenced to            an 87-month term  of imprisonment, a supervised  release term            of five  years, a  fine of  $50,000 and  was required  to pay            $5,799.60 -- the  cost of his supervised release.   On direct            appeal, he  challenged only  a two-level  enhancement to  his            base  offense level  for his  role as  a "supervisor"  in the            conspiracy.   We affirmed  his conviction  in an  unpublished            opinion.                      Appellant  then filed a  motion, under 28  U.S.C.              2255,  to remit  or reduce  his  fine, alleging  that he  was            indigent  and  that prison  officials would  remove appellant            from rehabilitative  activities if he  did not pay  the fine.            The district court denied  the motion.  On  appeal, appellant            first  alleges that the district court failed to consider the            factors listed  in 18  U.S.C.   3572(a)  prior to  making its            determination that appellant had the financial ability to pay            a fine.  In addition, appellant argues that the court did not            explicitly discuss or  provide support for its  imposition of            the   fine.    Next,  appellant  argues  that  the  provision            requiring the  court to impose  a fine to pay  the government            the cost of  his supervised release is not  authorized by the            Sentencing Reform  Act or the  terms of 18 U.S.C.    3553(a).            Rather, he argues, the Commission was granted the power  only            to study the question.               _____                      Because  appellant   failed  to  raise   the  claim            concerning   his  fine   on  direct   appeal,   he  faces   a            significantly  higher hurdle to  obtaining relief.   That is,            such  nonconstitutional claims may  not be presented  for the            first  time in  a    2255  motion unless  the alleged  errors            amount  to "`a fundamental defect which inherently results in            a complete miscarriage of justice.'"  Davis v. United States,                                                  _____    _____________            417 U.S. 333, 346 (1974)  (quoting Hill v. United States, 368                                               ____    _____________            U.S. 424, 428 (1962)).                      1.  The $50,000 fine.                          ________________                      Section  3572(a) lists  the  factors  a court  must            consider in  determining  whether to  impose a  fine and  the            amount of the fine:                        (1)  the  defendant's  income,  earning                      capacity, and financial resources;                        (2)  the  burden  that  the  fine  will                      impose upon the defendant [or] any person                      who  is  financially   dependent  on  the                      defendant .  . .  relative to  the burden                      that alternative punishments wold impose;                        (3) any  pecuniary loss  inflicted upon                      others as a result of the offense;                        (4) whether  restitution is  ordered or                      made and the amount of such restitution;                                         -3-                        (5) the  need to deprive  the defendant                      of  illegally  obtained  gains  from  the                      offenses. . . .            18 U.S.C.   3572(a).                      Similarly,   5E1.2 of  the United States Sentencing            Guidelines provides that "[t]he court shall  impose a fine in            all  cases, except where the defendant establishes that he is            unable to  pay and is  not likely to  become able to  pay any            fine."  U.S.S.G.   5E1.2(a).  The other factors listed in the            Guidelines relevant to the setting of a fine include the need            for  the fine "to reflect the seriousness of the offense, . .            . to promote respect for  the law, to provide just punishment            and to afford adequate deterrence. . . ."  Id.   5E1.2(d)(1).                                                       ___                      We will not presume that the  trial court failed to            consider  the pertinent  factors contained  in    3752.   See                                                                      ___            United States v.  Wilfred Am. Educ. Corp., 953  F.2d 717, 719            _____________     _______________________            (1st  Cir. 1992) (construing predecessor statute -- 18 U.S.C.               3622(a)).   Nor is  the  district court  required to  make            "specific  oral   or  written   findings"  relating   to  the            enumerated  factors.   See  id.  at  720;  United  States  v.                                   ___  ___            ______________            Hagmann,  950 F.2d 175,  185 (5th  Cir. 1991)  (considering              _______            3572(a)), cert. denied, 113 S.  Ct. 108 (1992).  Finally, the                      ____________            burden is  on appellant to  establish his inability to  pay a            fine.   See United States v. Matovsky, 935 F.2d 719, 722 (5th                    ___ _____________    ________            Cir.  1991); United  States v.  Perez, 871  F.2d 45,  48 (6th                         ______________     _____            Cir.), cert. denied, 492 U.S. 910 (1989).                   ____________                                         -4-                      Turning  to the  merits of  appellant's claims,  we            first note  that the district  court had before  it financial            information included in  the Presentence Report (PSI).   This            information indicated that, as of November 30, 1990 (prior to            his arrest), appellant had an  income of $1,000 per month and            expenses of  $694 per  month.1   Appellant points to  another            part  of the  PSI which  states that  he has  no "significant            assets."   The  court plainly  considered this factor  in its            decision to  impose a fine.   At the sentencing  hearing, the            court stated:                      I recognize that  the pre-sentence report                      indicates   that   you    do   not   have                      significant  assets  but,  frankly,  it's                      difficult for me to understand or  accept                      that someone  who has been dealing in the                      amounts  of  cocaine that  you  have been                      involved with doesn't  have those assets.                      That's a  matter for  you to  take up,  I                      suppose, with the Bureau  of Prisons when                      the time comes.            Transcript of Sentencing Hearing, at 30.                      We find that there was  no defect in the sentencing            process  which   resulted  in  a  "complete   miscarriage  of            justice."  Indeed, the court acted well within its discretion            in  imposing the $50,000  fine, especially  given appellant's            role as a  supervisor in the conspiracy and the  need to make            sure he  does not retain  any illegally obtained gains.   The                                            ____________________            1.  In  the financial statement  submitted by appellant  with            his   2255 motion, he stated that prior to his arrest, he had            worked in a factory for $800 per month.                                         -5-            fact that the court imposed a fine that is only a fraction of            the maximum of $4,000,000 is  further evidence that the court            considered appellant's ability to pay in setting the fine.                      Finally,  we do not  agree with appellant  that his            current  financial state should have precluded the imposition            of  any fine.   The  reference  in    3572(a)(1) to  "earning            capacity"  makes plain that appellant's future ability to pay            is part of  the equation.  See Hagmann, 950 F.2d at 185-86 (a                                       ___ _______            defendant's indigency at  the time the  fine is ordered  does            not preclude  imposition of  a fine); Perez,  871 F.2d  at 48                                                  _____            (current  assets do not determine whether defendant should be            excused  from  paying  a  fine  mandated  by  the  Sentencing            Guidelines).   As  we noted,  supra,  appellant was  employed                                          _____            prior to  his arrest and  had a steady income  which exceeded            his expenses.   Should this prediction prove wrong and should            the government seek to punish or imprison  appellant for non-            payment,  there are administrative  remedies to which  he can            turn.   See, e.g., United States  v. Levy, 897  F.2d 596, 598                    ___  ____  _____________     ____            (1st Cir.  1990); Santiago  v. United States,  889 F.2d  371,                              ________     _____________            373-74 (1st Cir. 1989) (per curiam).                      2.  Cost of supervised release.                          __________________________                      Section  5E1.2(i) provides  that  "the court  shall            impose an additional fine amount that is at  least sufficient            to  pay  the costs  to  the government  of  any imprisonment,            probation,  or  supervised  release  ordered."    We   reject                                         -6-            appellant's claim that justice  has obviously miscarried here            because the  Sentencing Reform  Act does  not authorize  this            fine.   Respectable authority  holds  to the  contrary.   See                                                                      ___            United States  v. Turner, No.  93-1148, 1993 U.S.  App. LEXIS            _____________     ______            17472 (7th Cir. July 14, 1993) (fine for cost of imprisonment            authorized  by Sentencing Reform  Act); Hagmann, 950  F.2d at                                                    _______            186 (fine  derived from fine  table under   5E1.2(b)  and the            additional  fine required under    5E1.2(i) both  realize the            goals  set  forth  in  18  U.S.C.    3553(a)(2)).    Although            appellant cites to a case in  which the Court of Appeals  for            the Third  Circuit held  that the Act  did not  authorize the            fines  provided for  in     5E1.2(i),  see United  States  v.                                                   ___ ______________            Spiropoulos, 976  F.2d 155 (3rd  Cir. 1992), we do  not agree            ___________            with the reasoning contained therein.                      For  the foregoing  reasons,  the  judgment of  the            district court is affirmed.                              ________                                         -7-
