
USCA1 Opinion

	




          September 29, 1993                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 93-1052                                  ROLAND D. VILLACCI,                                     Petitioner,                                          v.                              UNITED STATES OF AMERICA,                                     Respondent.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                       [Hon. Gene Carter, U.S. District Judge]                                          ___________________                                 ____________________                                        Before                                 Breyer, Chief Judge,                                         ___________                           Selya and Stahl, Circuit Judges.                                            ______________                                 ____________________            Roland D. Villacci on brief pro se.            __________________            Richard  S. Cohen,  United States  Attorney, and  F. Mark Terison,            _________________                                 _______________        Assistant United States Attorney, on brief for appellee.                                 ____________________                                 ____________________                 Per Curiam.  Roland  Villacci appeals from the dismissal                 __________            of a  28 U.S.C.   2255 petition challenging the legality of a            criminal fine.  In  1988, petitioner pled guilty to  a single            count of  conspiracy to possess more than  fifty kilograms of            marijuana with intent to distribute.   At sentencing on March            2, 1989,  the district court calculated  under the sentencing            guidelines  (hereinafter  "guidelines")  that petitioner  was            subject to a prison term  ranging from 77 to 96 months  and a            fine  ranging from $7500 to  $1 million.   The court selected            the  low end  of the  applicable range  in each  instance (77            months in prison and a $7500 fine), and also imposed a three-            year period of supervised release.1  The fine was  to be paid            during the supervised release  period, with a minimum monthly            payment  of  $100.     Petitioner  filed  no  direct  appeal.            Instead, in September 1992 he brought the instant petition in            an attempt to have the fine  vacated.  Asserting that he  was            and would remain unable  to pay the fine, he argued  that the            court  violated 18 U.S.C.    3572 by failing  to consider his            ability  to pay (along with other factors), failing to make a            specific finding with respect thereto, and failing to hold an            evidentiary hearing.                   Contrary to petitioner's  suggestion below,  it was  not            the government's  burden to  establish his  ability to  pay a                                            ____________________            1.  Subsequently, the  prison term  was reduced to  60 months            and the period of supervised release was vacated.            fine;  rather, it was his burden to establish an inability to            do so.  See, e.g., United States v. Savoie, 985 F.2d 612, 620                    ___  ____  _____________    ______            (1st Cir. 1993) ("[U]nder the guidelines, a fine is the rule-            -and  it is  the defendant's burden  to demonstrate  that his            case is an  exception").2  In addition,  while the sentencing            court must consider ability to pay and other relevant factors            in  deciding  whether to  impose a  fine,3  it need  not make            specific  findings with  respect  thereto.   See, e.g.,  id.;                                                         ___  ____   ___            United  States v.  Pilgrim Market  Corp., 944 F.2d  14, 22-23            ______________     _____________________            (1st Cir. 1991); see  also United States v.  Wilfred American                             _________ _____________     ________________            Educ.   Corp.,  953   F.2d  717,   719-20  (1st   Cir.  1992)            _____________            (interpreting similar  language in predecessor statute).  Nor                                            ____________________            2.  The pertinent  guideline provision in effect  at the time            of petitioner's sentencing makes this plain:                      If  the defendant  establishes that (1)  he is                      ______________________________                 not able  and, even  with the use  of a  reasonable                 installment schedule,  is not likely to become able                 to  pay all  or part  of the  fine required  by the                 preceding provisions,  or (2) imposition of  a fine                 would unduly burden the defendant's dependents, the                 court may impose a lesser fine or waive the fine.            U.S.S.G.   5E4.2(f) (1988)  (emphasis added).  The applicable            provision in the current  guidelines, see U.S.S.G.   5E1.2(a)                                                  ___            (1993), is to the same effect.             3.  Section 3572(a) provides that, in "determining whether to            impose a fine, and  the amount, time for payment,  and method            of  payment  of a  fine,"  the court  "shall"  consider seven            enumerated  factors.   These include  the following  two: (1)            "the  defendant's  income,  earning  capacity,  and financial            resources"; and (2)  "the burden  that the  fine will  impose            upon the defendant [and] any other person who  is financially            dependent on  the defendant."  The  guidelines contain nearly            identical language.                                         -3-            will we "presume that the district court declined to consider            the relevant ... evidence  contained in the record."   Id. at                                                                   ___            719.   So  long  as the  record  "enables adequate  appellate            review," id. at 720, the sentencing court need not  delineate                     ___            its reasoning.                   Under these  standards, we find that  the district court            acted  well within  its  discretion in  imposing the  minimum            $7500 fine.  See,  e.g., Savoie, 985 F.2d at  620 (imposition                         ___   ____  ______            of   fine  under   guidelines  is   reviewed  for   abuse  of            discretion).   First,  the  Presentence Report  (PSR)  stated            that, based  on  defendant's "personal  financial  statement"            (which is not in the record  before us), "he would be able to            pay a minimal fine."   Defendant voiced no objection  to this            conclusion.4    Second,  petitioner  otherwise  introduced no            evidence concerning his alleged inability to pay.   Third, it            is  apparent that the court did consider this criterion.  Not            only did the PSR make  reference thereto, but (for  unrelated            reasons) the  court devoted a  substantial amount of  time at            sentencing  to an  examination of  petitioner's  tax returns.            Finally, petitioner overlooks the fact that future ability to            pay  is  part  of  the  equation--a  fact  evidenced  by  the                                            ____________________            4.  In a reply memorandum  submitted below in connection with            the  instant  petition,  petitioner argued  that  his counsel            rendered ineffective  assistance by  failing to make  such an            objection (as well as by subsequently failing to  appeal from            the  fine).  This contention has been abandoned by petitioner            on appeal.                                           -4-            reference  in  both    3572  and the  guidelines  to "earning            capacity."   As a  33-year-old high school  graduate, in good            health, with  no children, and with  previous work experience            as a machine operator and a mechanic, petitioner is hardly in            a  position to complain of  any ongoing inability  to pay the            minimum fine in question here.                 Affirmed.                 _________                                         -5-
