
USCA1 Opinion

	




          May 11, 1994          [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ___________________          No. 93-2168                                             IVAN SANCHEZ-PEREZ,                                Petitioner, Appellant,                                          v.                              UNITED STATES OF AMERICA,                                Respondent, Appellee.                                  __________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                    [Hon. Hector M. Laffitte, U.S. District Judge]                                              ___________________                                 ___________________                                        Before                             Torrurlla, Selya and Stahl,                                    Circuit Judges.                                    ______________                                 ___________________               Ivan Sanchez-Perez on brief pro se.               __________________               Guillermo  Gil,  United  States   Attorney,  and  Joseph  J.               ______________                                    __________          Frattallone,  Assistant  United  States  Attorney  on  brief  for          ___________          appellee.                                  __________________                                  __________________                 Per Curiam.  Appellant Ivan Sanchez-Perez pled guilty to                 __________            unlawful  possession  in  a  vessel  of   approximately  34.5            kilograms of  cocaine, and  of aiding  and abetting  same, in            violation of  21 U.S.C.    955  and 18 U.S.C.    2.   He  was            sentenced to a  term of  170 months imprisonment,  a fine  of            $10,050,  and  a  five  year period  of  supervised  release.            Appellant did not file  a direct appeal.  Instead,  he sought            to vacate his sentence  pursuant to 28 U.S.C.    2255 on  the            grounds that (1) the imposition  of the fine was a denial  of            his  fifth  amendment  right to  due  process  of  law and  a            violation of the  eighth amendment prohibition  against cruel            and  unusual  punishment; and  (2)  he  was denied  effective            assistance of counsel because his attorney did not object  to            the  imposition  of  the  fine  and  because  the  attorney's            representation  of  a  co-defendant  caused   a  conflict  of            interest.    We  affirm  the district  court's  dismissal  of            appellant's petition.                 Appellant  asserts that  the court  erred in  imposing a            fine upon him because  (1) he was indigent and  therefore was            exempt from a fine;  (2) the fine was unduly  burdensome upon            him  and his daughter to whom he is obligated to provide $200            per  month  in  child support;  and  (3)  the  court made  no            specific findings of  the reasons  for the fine.   We  review            imposition of  fines only for  abuse of  discretion.   United                                                                   ______            States v. Savoie, 985 F.2d 612, 620 (1st Cir. 1993).              ______    ______                                         -2-                  The court did  not abuse its  discretion in imposing  a            fine.  According to the  guidelines in effect at the  time of            appellant's sentencing,  the court  was required to  impose a            fine unless  a defendant established that "he  [wa]s not able            and, even with  the use of a  reasonable installment schedule            [wa]s 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."            U.S.S.G.   5E4.2(f) (1988) (emphasis  added).1   Hence, under            the guidelines, "a  fine is the  rule--and it is  defendant's            burden  to  demonstrate  that  his  case  is  an  exception."            Savoie, 985  F.2d at  620.   Although the  presentence report            ______            stated that appellant did  not appear to have the  ability to            pay  a fine,  it also  reflected that  appellant was  in good            physical  and  emotional  health,  possessed  a  high  school            diploma, was employed at the time of his arrest, and had been            employed,  at least temporarily,  for most  of the  past five            years.2   These uncontested  facts support a  conclusion that            appellant  has the earning capacity  to become able  to pay a            fine.  See  United States  v. Hagmann, 950  F.2d 175,  185-86                   ___  _____________     _______            (5th Cir.  1991) (indigency  at time  of sentencing  does not            preclude  imposition of  fine), cert.  denied, 113  S.Ct. 108                                            ____   ______                                            ____________________            1.  The applicable  provision of the current  guideline is to            the same effect.  See U.S.S.G.   5E1.2(f).                              ___            2.  The PSI  also indicated that  appellant had  unencumbered            assets of $2,000.                                         -3-            (1992).    Moreover,  appellant  has  failed  to  adduce  any            evidence  either that  he  is  unable,  with  the  use  of  a            reasonable installment  schedule,3 to  pay the fine,  or that            his  daughter has  been unduly  burdened as  a result  of the            payments  he  has  been  required  to  make.    See  U.S.S.G.                                                            ___             5E4.2(f) (defendant bears burden  of establishing that he is            not able to  pay fine with reasonable installment schedule or            that fine would unduly burden dependent).                 Nor was  the fine unduly burdensome.  In determining the            amount of the fine, the court was required to consider, inter                                                                    _____            alia,   "the  ability  of  the  defendant  to  pay  the  fine            ____            (including his ability to pay over a period of time) in light            of  his earning  capacity and  financial resources";  and (2)            "the burden  that the fine places  on . . .  his dependents."            U.S.S.G.  5E4.2(d).   However,  the court must  also consider            "the  need   for  the   combined  sentence  to   reflect  the            seriousness of the offense, . . .  to promote respect for the            law,  to  provide  just  punishment and  to  afford  adequate            deterrence."    Id.   In  light  of  the evidence  supporting                            __            appellant's  earning capacity and the lack of evidence of any            effect  on appellant's  daughter, we  think that  the court's            imposition of  a fine beneath the $17,500  minimum called for                                            ____________________            3.  According to the unopposed  statement of the  government,            appellant is currently  required to pay  less than $6.00  per            month.   Furthermore, since appellant's fine  is not a stand-            committed fine,  failure to  make the required  payments will            not delay his release from prison.                                         -4-            by the guidelines4  is adequate indication  that it took  all            these factors into  account.   See Hagmann, 950  F.2d at  185                                           ___ _______            (imposition of only fraction of maximum possible fine implies            that court took into account defendant's ability to pay).                   Furthermore, since the record  indicates that the  court            did consider defendant's ability to pay and is  sufficient to            allow for adequate appellate review, the sentencing court was            not  required  to make  specific  findings  or delineate  its            reasons for imposing the fine  it did.  See Savoie, 985  F.2d                                                    ___ ______            at 620; United  States v. Wilfred  American Educ. Corp.,  953                    ______________    ____________________________            F.2d 717, 719-20 (1st Cir. 1992).                   Finally, given that  we find no error  in the imposition            of  the   fine  upon  appellant,  we  reject   his  claim  of            ineffective assistance  of counsel  insofar as that  claim is            predicated on  counsel's alleged errors in  failing to object            to the fine. To the extent appellant's claim is predicated on            counsel's  alleged  conflict  of  interest,  we  affirm   its            dismissal essentially for the  reasons stated by the district            court in its opinion and order dated August 2, 1993.                 Affirmed.                 ________                                            ____________________            4.  The guidelines called for a maximum fine of $4,000,000.                                         -5-
