
USCA1 Opinion

	




          October 17, 1995                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 95-1482                                     UNITED STATES,                                      Appellee,                                          v.                                   ANGEL VELAZQUEZ,                                Defendant, Appellant.                                 ____________________                                     ERRATA SHEET            The  opinion of this  court issued on October  16, 1995 is amended        as follows:            On  cover  sheet,  change  "Watson,  Senior  Circuit  Judge,"   to                                                 ______________________        "*Watson, Senior Judge,".                  ____________            *Senior  Judge, U.S.  Court  of International  Trade,  sitting  by        designation.        October 16, 1995                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                                            ____________________        No. 95-1482                                     UNITED STATES,                                      Appellee,                                          v.                                   ANGEL VELAZQUEZ,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                    [Hon. Hector M. Laffitte, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                                Torruella, Chief Judge,                                           ___________                                *Watson, Senior Judge,                                         ____________                              and Lynch, Circuit Judge.                                         _____________                                 ____________________            Graham A. Castillo Pagan on brief for appellant.            ________________________            Guillermo   Gil,  United   States  Attorney,   Edwin  O.  Vazquez,            _______________                                __________________        Assistant United States Attorney, and Jose A. Quiles-Espinosa on brief                                              _______________________        for appellee.                                 ____________________                                 ____________________            *Senior Judge,  U.S.  Court  of  International Trade,  sitting  by        designation.                      Per Curiam.  Appellant pled guilty to violation  of                      __________            31  U.S.C.       5316  and  5322,   failing  to  report   the            transportation of more than $10,000 in United States currency            from  the United  States.   At  the  sentencing hearing,  the            district court reviewed  the plea  agreement with  appellant,            and appellant indicated  that he understood the terms  of the            agreement as well  as the maximum penalties  for the offense.            He now argues that  the $500.00 fine imposed by  the district            court was excessive and violates the "Excessive Fines Clause"            of the Eighth Amendment.                                          I.                                          _                      The agreed-to facts, as reflected in the "Plea  and            Forfeiture Agreement,"    indicate that  appellant, about  to            board  an  airplane  from  Puerto  Rico  to  Santo   Domingo,            Dominican  Republic,  was  selected  for  interview  by  U.S.            Customs  agents.     Appellant  was  asked   whether  he  was            transporting over  $10,000.00 in U.S. currency.   He answered            that he was  transporting only  $1,200.00.  A  search of  his            bags revealed $25,258.00.                      Appellant agreed to plead guilty1 and  indicated on            the plea  agreement his  understanding  of the  penalties  he            faced -- a term of imprisonment  of not more than five years,            a  fine  of  up to  $250,000.00,  and  a  three-year term  of                                            ____________________            1.    As part of the plea agreement, the Government agreed to            request  the dismissal of Count  Two of the Indictment, which            charged appellant with knowingly  making a false statement in            violation of 18 U.S.C.   1001.              supervised  release.    He agreed,  too,  to  forfeit to  the            Government  25  percent  of   the  $25,258.00  he  was  found            transporting  ($6,315.00)  and  to  pay  a  special  monetary            assessment  of  $50.00.     Finally,  he  indicated  that  he            understood  that  the  court  was   not  bound  by  the  plea            agreement.                      At  the  sentencing  hearing,  the  district  court            reviewed   the   plea  agreement   with  appellant.     After            satisfactory response,  the  court sentenced  appellant to  a            three-year term of probation, and ordered  a fine of $500.00,            a $50.00 special monetary assessment, and the above-described            forfeiture.2    Appellant  paid  the  fine  and  the  special            assessment within a week of the sentencing hearing.                                         II.                                         __                      Appellant claims that the  fine imposed in his case            violates   the  "Excessive  Fines   Clause"  of   the  Eighth            Amendment.   He  does not  argue that  the court  was without            statutory power to impose the fine, that he is unable to  pay            the  fine, or  that  there are  any  double jeopardy  or  due            process  implications.  His legal challenge to the fine boils            down to this:   since he is already forfeiting  a substantial                                            ____________________            2.    Under the relevant sentencing guidelines, appellant had            an  offense level of 8.  At  this level, the court could have            imposed a term  of 0 to 6 months' imprisonment  and a fine of            $1,000.00 to $10,000.00.  U.S.S.G. Ch. 5 Pt.A;   5E1.2(c)(3).                                         -3-            amount of money  to expiate his  wrongdoing, the addition  of            another $500.00 is excessive.                      A party bringing an Eighth Amendment excessive fine            claim must  show, after a "threshold  comparison" between the            gravity of criminal conduct and  the severity of the penalty,            an "initial  inference of gross disproportionality."   United                                                                   ______            States v. Bucuvalas, 970 F.2d 937, 946 (1st Cir. 1992), cert.            ______    _________                                     ____            denied,  113  S.Ct.  1382  (1993).     We  can  perceive   no            ______            disproportionality or unfairness here.   Cf. United States v.                                                     ___ _____________            Pilgrim  Market  Corp.,  944 F.2d  14,  22  (1st Cir.  1991).            ______________________            Appellant  has no quarrel with  the forfeiture of  25% of the            unreported funds, but only with the imposition of the $500.00            fine.   That additional3 sum, considered  even in conjunction            with the forfeited  amount, was well below  the statutory and            guideline maximums and did not transgress the Excessive Fines            Clause.                      The judgment is affirmed.  Loc. R. 27.1.                                      ________                                            ____________________            3.    There was  never any promise or understanding  that the            appellant's total  exposure was 25  percent of the  amount at                        _____            issue, or  $6,315.00, compare   United States v.  Maling, 942                                  _______   ________________________            F.2d 808, 811 (1st Cir.  1991); rather, it was made clear  in            the plea  agreement and at  the sentencing  hearing that  the            maximum fine to which appellant was exposed -- $250,000.00 --            was entirely separate from the amount to be forfeited.                                         -4-
