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[NOT FOR PUBLICATION]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.
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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.
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