March 30, 1993    UNITED STATES COURT OF APPEALS
                      FOR THE FIRST CIRCUIT
                                           

No. 92-1898

                    UNITED STATES OF AMERICA,

                            Appellee,

                                v.

                        GABRIEL PREZIOSO,

                      Defendant, Appellant.

                                           

           APPEAL FROM THE UNITED STATES DISTRICT COURT

                 FOR THE DISTRICT OF RHODE ISLAND

           [Hon. Francis J. Boyle, U.S. District Judge]
                                                      

                                           

                              Before

                    Torruella, Circuit Judge,
                                            

                 Campbell, Senior Circuit Judge,
                                               

                    and Stahl, Circuit Judge.
                                            

                                           

     John F. Cicilline for appellant.
                      
     Margaret  E.  Curran,  Assistant  United   States  Attorney,
                         
Lincoln C.  Almond,  United  States  Attorney,  and  Lawrence  D.
                                                                 
Gaynor,  Assistant  United States  Attorney,  were  on brief  for
      
appellee.

                                           

                          March 30, 1993
                                           

          TORRUELLA, Circuit  Judge.   This appeal arises  out of
                                   

the calculation  of appellant's sentence under  the United States

Sentencing Guidelines ("U.S.S.G.").  Appellant  contends that the

district  court erred  in enhancing  his sentence  under U.S.S.G.

  4A1.1(d) based on an outstanding  fine for a previous  offense.

Because we agree with the district court that the enhancement was

warranted in this case, we affirm.

                            THE FACTS
                                     

          Appellant  pled  guilty  to unlawful  possession  of  a

firearm  by a  convicted  felon  in  violation  of  18  U.S.C.   

922(g)(1).    The  police   found  the  firearm  while  searching

appellant's home for evidence of illegal gambling.  Appellant had

several  prior felony convictions for  gambling.  At  the time of

the  search, appellant still  owed a $5000 fine  for one of these

convictions.

          The presentence  report for the present  conviction set

the  base  offense level  at 12,  but  subtracted two  levels for

acceptance  of   responsibility.    The  report   then  made  two

adjustments for criminal  history.  First,  the report added  two

levels  for appellant's prior state gambling convictions pursuant

to  U.S.S.G.     4A1.1.   Second,  the  report  added two  levels

pursuant to  U.S.S.G.     4A1.1 because  appellant  was  under  a

criminal  justice   sentence,  the  unpaid  fine,   for  a  prior

conviction when  he committed  the present  offense.   These  two

adjustments placed appellant at criminal history level III, which

together with the base offense level of 10, yielded an applicable

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range of 10-16 months.  

          Between the time of offense and the time of sentencing,

the base offense level for the felon in  possession crime rose by

two  levels.   In such  a situation,  it is  proper to  apply the

sentencing guidelines  applicable at the time  of offense, rather

than  the   normally  applicable   guidelines  at  the   time  of

sentencing, in order  to avoid  violations of the  Ex Post  Facto
                                                                 

Clause  of the  Constitution.   Id.    1B1.11.   The report  thus
                                   

relied  on  the guidelines  as  they stood  at  the  time of  the

offense, not at the time of sentencing.  

          Appellant  objected  to  the  calculation  of  criminal

history on two grounds.   First, he  argued that the unpaid  fine

was  not a criminal justice sentence for the purposes of U.S.S.G.

  4A1.1(d).  Appellant  relied on an amendment to  the commentary

that became effective in November 1991 as support; he argued that

this  amendment  should  have  retroactive effect.    Second,  he

contended  that  the calculation  violated  the  Equal Protection

Clause,  in that treating a  fine as a  criminal justice sentence

disfavors indigent defendants who cannot pay fines quickly.   The

district court  judge disagreed  on each argument,  and sentenced

appellant to 13 months  imprisonment, a $5,000 fine, and  2 years

of supervised release.   Appellant revives  his objection to  the

criminal history calculation in this appeal.

                          LEGAL ANALYSIS
                                        

          In 1990, we decided United States  v. Gallego, 905 F.2d
                                                       

482  (1st Cir.  1990).    There  we  held  that  "the  sentencing

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guidelines are perfectly clear that a fine is a 'criminal justice

sentence'"  and  therefore  triggers   the  U.S.S.G.     4A1.1(d)

enhancement.    Id.  at 483.    In  November,  1991, a  so-called
                   

clarifying amendment to the application notes to that section was

added, stating that "a sentence to  pay a fine, by itself," would

not trigger the enhancement.  We must determine whether, in light

of our circuit  precedent to  the contrary, we  should apply  the

1991  amendment   retroactively  to  the  1990   version  of  the

guidelines in this case.

          At  the   outset,  we  note  that   we  normally  apply

amendments retroactively  only if  they clarify a  guideline, but

not if they substantively  change a guideline.  Isabel  v. United
                                                                 

States, 980 F.2d 60,  62 (1st Cir. 1992).  The  first step in our
      

analysis, then, is to determine whether the amendment constitutes

a clarification or a substantive change.  We recognized in Isabel
                                                                 

that  these categories were unclear,  id., and as  is usually the
                                         

case, there are factors supporting either side.

          On   the  one  hand,   the  United   States  Sentencing

Commission  labeled  the  amendment  as a  clarification  of  the

meaning of a criminal justice sentence.  U.S.S.G. App. C  at 206,

208.   Because  the 1990  guideline did  not say  explicitly that

fines  were   or  were  not  criminal   justice  sentences,  this

characterization does  not contravene  any specific  provision of

the guidelines themselves.

          On the other  hand, our  holding in  Gallego weighs  in
                                                      

favor of  characterizing the  amendment as a  substantive change.

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Given  that  holding,  the  amendment  alters  the  guideline  as

interpreted  by the  First Circuit.   Furthermore,  any amendment

that  is  inconsistent  with  the  clear  meaning  results  in  a

substantive  change,  regardless of  the  Sentencing Commission's

characterization.  United States v.  Ruiz Batista, 956 F.2d  351,
                                                 

353 (1st Cir.)  ("if there was no ambiguity .  . . the Commission

could not change  [the] meaning  retroactively by  using a  magic

word, clarification"), cert. denied,  113 S. Ct. 105 (1992).   In
                                   

Gallego  we held  it to  be "perfectly  clear" that  a fine  is a
       

criminal justice sentence,  as that  term is used  in U.S.S.G.   

4A1.1.  The contrary amendment  therefore would seem to represent

a substantive change, rather than a clarification.

          Given  our  holding  in   Gallego,  we  rule  that  the
                                           

amendment  was  not  a  clarification.    Rather,  the  amendment

presented  a change  in the  meaning of  a clear  and unambiguous

guideline.  As  the amendment was not a clarification,  it is not

entitled to retroactive effect.   Accordingly, the district court

did not err in sentencing appellant.1

          We  turn  now  to  appellant's  constitutional  claims.

Appellant  insists that  he  is being  penalized  because he  was

paying his  fine incrementally  according to a  state established

schedule.  According to  appellant, the Fourteenth Amendment does

not permit criminal penalties due  to a defendant's inability  to

pay a fine.

                    

1  We will, of  course, apply the commentary in future  cases not
involving retroactivity.  

                               -5-

          We disagree with appellant's analysis.  He is not being

penalized  for nonpayment  of  a  fine.    Rather,  he  is  being

penalized  because  that fine  is not  yet  due and  payable, and

therefore  appellant  is  still  subject to  a  criminal  justice

sentence.  We have rejected similar claims on these very grounds.

Gallego,  905 F.2d at 483 n.2.   Furthermore, appellant is not an
       

indigent, and therefore  is not  entitled to  the protections  he

claims.   See  Bearden v.  Georgia, 461  U.S. 660,  664-69 (1983)
                                  

(distinguishing   between   indigents   and    nonindigents   for

constitutional   purposes).    Appellant's  sentence  invokes  no

constitutional concerns.

          We  cannot conclude  without  a respectful  observation

regarding   what  we  perceive  to   be  a  too  often  exercised

prerogative  by  the  Sentencing   Commission,  that  of   making

significant alterations to  the guidelines commentary accompanied

by  a  suggestion  that  the  alteration  is  a  "clarification."

Considering the thin line separating substance from clarification

in this neural area of the law, we believe judicious restraint by

the Commission  would not  only avoid unnecessary  litigation and

the possible violation of constitutional rights, but would add to

the credibility of its action.  

          The sentence is affirmed.
                                  

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