
USCA1 Opinion

	




        August 13, 1992         [NOT FOR PUBLICATION]                                 ____________________        No. 91-2253                               UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                DOMINGO RAMIREZ, SR.,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                       [Hon. Gene Carter, U.S. District Judge]                                          ___________________                                 ____________________                                        Before                                 Breyer, Chief Judge,                                         ___________                           Campbell, Senior Circuit Judge,                                     ____________________                               and Cyr, Circuit Judge.                                        _____________                                 ____________________            Andrew W. Sparks and Drummond & Drummond on brief for appellant.            ________________     ___________________            Richard  S.  Cohen,  United  States  Attorney,  Jonathan R.  Toof,            __________________                              _________________        Assistant United States Attorney, and Margaret D. McGaughey, Assistant                                              _____________________        United States Attorney, on brief for appellee.                                 ____________________                                 ____________________                      Per  Curiam.   Appellant  Domingo Ramirez,  Sr. was                      ___________            charged  in a  two-count  indictment with  (1) conspiring  to            possess  over  500  grams  of  cocaine  with  the  intent  of            distributing  it  in violation  of  21  U.S.C.     841(a)(1),            841(b)(1)(B)  and 846;  and  (2) possession  of cocaine  with            intent to distribute, and  aiding and abetting the possession            with  the intent to distribute  in violation of  21 U.S.C.               841(a)(1)  and 841(b)(1)(B), and 18 U.S.C.    2.  On July 19,            1991, appellant  pleaded guilty  to the  first  count of  the            indictment.  The  district court  dismissed count  II on  the            government's motion.                      The Presentence Report indicates a criminal history            category of III and an initial base offense level of 26.  See                                                                      ___            U.S.S.G.   2D1.1(c)(9) (offense  involving at least 500 grams            of  cocaine but less than two kilograms).  The district court            rejected  the  recommendation  of  the  government   and  the            conclusion in the Presentence Report that appellant receive a            two-level  increase based on his  role as an  organizer.  The            court  accepted,  however,  a two-level  decrease  based upon            appellant's  acceptance  of  responsibility.   Thus,  a  base            offense level of 24 resulted.                      Accordingly, the district court sentenced appellant            on October  25, 1991 to  a term of 78  months imprisonment, a            supervised  release term of five years and a fine of $15,000.                                         -2-            On appeal, appellant challenges only the  fine portion of his            sentence.  His attack is two-fold.                      1.   Appellant claims that in  imposing the $15,000            fine the district court  did not consider all of  the factors            contained in   5E1.2(d) and, as a result, violated the Eighth            Amendment's  prohibition against  excessive  fines.   Section            5E1.2(a) 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."  (emphasis added).  Among the factors the court "shall            consider"  are  the  need  to  provide  punishment,  evidence            concerning defendant's ability to pay a fine "in light of his            earning capacity  and financial  resources" and the  burden a            fine would place on defendant and his or her dependents.  See                                                                      ___              5E1.2(d)(1)-(3).                      Appellant first argues that the district  court was            required  to make specific findings  as to each  factor.  See                                                                      ___            United  States v. Walker, 900 F.2d 1201, 1206 (8th Cir. 1990)            ______________    ______            (per  curiam) (district  court  required  to  make  "specific            findings  on  the record").    We  addressed  and rejected  a            similar  claim in  the context  of 18  U.S.C.    3622(a) (now            repealed) which  contained virtually  the same language  as              5E1.2(d).  See United  States v. Wilfred American Educational                       ___ ______________    ____________________________            Corp., 953  F.2d 717 (1st Cir.  1992).  There  we stated that            _____            "[w]e will not  presume that the  district court declined  to                                         -3-            consider the relevant  section 3622(a) evidence contained  in            the  record" and  held, as a  result, that the  court was not            required to make specific  written or oral findings regarding            each factor.  Id. at 719-20.  We do not see any reason not to                          ___            extend Wilfred American to cases  involving   5E1.2(d) of the                   ________________            Sentencing Guidelines.                      On  review  of the  record,  it is  plain  that the            district court  considered the factors listed  in   5E1.2(d).            It  not only  had  before  it  the  Presentence  Report,  but            appellant's counsel brought to the attention of the court the            financial condition of  appellant at the  sentencing hearing.            See Wilfred American, 953 F.2d at 720 (where sentencing court            ___ ________________            had before it financial data provided by appellant, including            affidavits, letters  and a sentencing memorandum,  as well as            the  Presentence Report,  it is  clear that  court considered            relevant factors).  We therefore turn to the merits.                      The  Presentence  Report  contains   an  employment            history.  Appellant, who  has a high school education  and is            proficient in five languages (English, French, Greek, Spanish            and the Haitian  dialect), first worked in the  United States            for  several trucking  firms.   From 1982 to  1987, he  was a            heavy equipment  operator and earned from $17.00  per hour to            $23.00  per hour.    From 1987  up until  his arrest  for the            current  offense, appellant  was  self-employed as  the  D.R.            Bulldozing Service.                                         -4-                      The  Presentence  Report  reveals that  appellant's            only assets  are a  pick-up truck worth  $12,000 and  jewelry            valued  at  $2,000.   He  is  making  payments  on the  truck            (including  insurance)  of  $337  per month.    Appellant  is            married  with   a  small  child.     The  Presentence  Report            concludes:                      In the past, the defendant has worked for                      companies  that  have  paid  him  a  good                      living wage.  It would  appear that since                      the defendant is  employable and  capable                      of  earning a decent  income, he would be                      able to pay at least a minimal fine.            Presentence Report, at   64.                      The district court adopted   64 and determined that            appellant  had the earning capacity to pay a fine of $15,000.            It noted that, when on supervised release, appellant would be            required to work and hopefully would be able  to pay the fine            within two years.  If appellant's circumstances should change            in the  future, the  court noted,  there were  procedures for            adjusting the amount of the fine.                      "[W]e review the  lower court's application of  [a]            guideline  to a  given set  of facts  only for  clear error."            United  States v. Tardiff, No.  91-2040, slip op.  at 13 (1st            ______________    _______            Cir. July  8,  1992).   Appellant argues  that the  following            factors render  the court's finding plainly wrong.  First, he            maintains that he does not have  the financial resources with            which to pay a  fine.  Specifically, he  claims that he  lost            all of the heavy equipment he owned when he put the equipment                                         -5-            up as  security for the  purchase of the cocaine.   He argues            that  he  will  be  57  years  old  when  released  and  that            employment prospects will be dim  for such a convicted felon.            He adds that  he will be  responsible for the support  of his            wife and child  which further  limits his capacity  to pay  a            fine.  That he was unable  to post bail and is represented by            court-appointed  counsel, appellant goes on, are "significant            indicators  of  present  inability"  to  pay  any fine.    He            concludes that the evidence in the Presentence Report that in            the  past he had well-paying construction jobs and is in good            health is not sufficient to satisfy the Eighth Amendment.                        We cannot find that  the court's conclusion  that            appellant had the financial ability to pay a fine was clearly            erroneous.   Appellant  had  a solid  work history  operating            heavy machinery.   He provides  no evidence,  other than  the            fact  that  he will  be  a 57-year-old  convicted  felon when            released,  that shows why this work would not be available to            him on  release.   Moreover, the  argument  that his  present            financial  status is so bleak that he  was forced to accept a            court-appointed  attorney, misses the mark.  It is his future                                                                   ______            earning capacity, not the state of his current assets that is                                                   _______            relevant.   See United States v. Quan-Guerra,  929 F.2d 1425,                        ___ _____________    ___________            1427  n.1 (9th Cir. 1991);  United States v.  Perez, 871 F.2d                                        _____________     _____            45,  48 (6th Cir.) (current assets do not determine whether a            defendant  entitled to  be relieved  of obligation  to  pay a                                         -6-            fine), cert. denied, 492 U.S. 910 (1989).  The  fact that the                   ____________            fine  imposes a heavy burden  on appellant is  to be expected            given that the Guidelines  require that the amount of  a fine            be  punitive.   See United States  v. Mastropierro,  931 F.2d                            ___ _____________     ____________            905, 907  (D.C. Cir. 1991)  (citing U.S.S.G.     5E1.2(e) and            5E1.2(d)(1)).                      2.   Appellant's  second challenge  to the  fine is            that  the district  court misapplied  the Guidelines  when it            determined that the minimum  fine was $12,500.  Appellant  is            correct  that the minimum fine for a base offense level of 24            under the version  of the  Guidelines in effect  when he  was            sentenced  was  $10,000,  not  $12,500.   See     5E1.2(c)(3)                            _______                   ___            (effective  November 1,  1990).   However, appellant  did not            raise this issue below.  Arguments  not raised at the time of            sentencing are waived.  United States v. Ortiz,  Nos. 91-1974                                    _____________    _____            and  91-1975,  slip  op. at  18  (1st  Cir.  June 10,  1992).            Nonetheless,  we may review this claim under Fed. R. Crim. P.            52(b):    "[P]lain errors  or  defects affecting  substantial            rights may be noticed  although they were not brought  to the            attention  of  the court."   Thus,  the  fine portion  of the            sentence  is subject  to "plain  error" review.   See  United                                                              ___  ______            States v. Rodriguez, 938 F.2d 319, 321 (1st Cir. 1991).            ______    _________                      The government  points out  that even if  the court            had  used the correct version  of   5E1.2(c)(3),  the fine of            $15,000 still falls  within the prescribed  range.  Thus,  it                                         -7-            argues,  the  error  could  not   have  affected  appellant's            "substantial rights."  Technically there may be truth to this            argument.   Given,  however, the  relative simplicity  of the            district  court's  now reviewing  the  fine in  light  of the            correct   range,  and   the  undesirability   of  appellant's            perceiving  himself to  be  the victim  of  an unfairness  so            easily  corrected, we  hold that  under the  circumstances of            this  case, the  failure to  use the  correct fine  range did            affect appellant's rights under  Rule 52(b).  A similar  case            although not involving plain  error, is Ortiz. There  we held                                                    _____            that  the  district  court   should  not  have  enhanced  the            defendant's base  offense level  for his supervisory  role in            the drug-trafficking  operation.  We remanded  for sentencing            even though  the sentence actually imposed  still fell within            the corrected Guideline.  Slip op. at 20.  We held:                           We think the correct rule of  law is                      that, where it appears  reasonably likely                      that  the  district   judge  selected   a                      sentence  because it  was  at  or near  a                      polar extreme (whether  top or bottom) of                      the  guideline  range   that  the   judge                      thought applicable, the court  of appeals                      should vacate the sentence and remand for                      resentencing if it is determined that the                      court  erred  in its  computation  of the                      range, notwithstanding that there  may be                      an  overlap  between   the  "right"   and                      "wrong"  sentencing ranges  sufficient to                      encompass the  sentence actually imposed.                      It  is only where  it is reasonably clear                      from  the record  that  the  trial  court                      would  have  imposed  the  same  sentence                      under  either  range  that  an  appellate                      court should leave the sentence intact.                                         -8-            Id. at 20-21 (citations omitted).            ___                      Here the $15,000 was at the very low end of a range            that went up to $2,000,000.  Clearly, the court intended that            appellant  pay   a  relatively   minimal  fine.     In  these            circumstances,  perhaps  the  court  decided  that  a  $2,500            increase  over the minimum was the  appropriate fine.  Absent            some  clearer indication  that the  court believed  a $15,000            fine  to  be  the  appropriate  one  even under  the  correct            Guideline, a remand is indicated in the interest of justice.                      Thus, we affirm the finding of appellant's  ability                               ______            to pay  a fine, but vacate and remand the fine portion of the                                _________________            sentence for  resentencing in  accordance with this  opinion.            We, of course, do not  mean to require the imposition  of any            lower  fine  should  the  court conclude  under  the  correct            guideline that the present fine is proper.                                         -9-
