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                    [NOT FOR PUBLICATION]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 &amp;  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-
