May 11, 1994 [NOT FOR PUBLICATION]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).
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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.
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(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.
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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.
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