October 10, 1996 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 96-1035
UNITED STATES,
Appellee,
v.
HENRY CIFUENTES-RIASCOS,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Carmen Consuelo Cerezo, U.S. District Judge]
Before
Torruella, Chief Judge,
Selya and Stahl, Circuit Judges.
Benico Sanchez Rivera, Federal Public Defender, and Miguel A.A.
Nogueras-Castro, Assistant Federal Public Defender, on brief for
appellant.
Guillermo Gil, United States Attorney, Warren Vazquez and Nelson
Perez-Sosa, Assistant United States Attorneys, and Jose A. Quiles
Espinosa, Senior Litigation Counsel, on brief for appellee.
Per Curiam. Defendant was convicted of unlawful
re-entry by a deported alien in violation of 8 U.S.C.
1326(b)(2). He was sentenced to 100 months imprisonment and
fined $500. On appeal he argues for the first time that the
district court erred in imposing the fine where the defendant
was financially unable to pay. This objection not having
been made below, it is reviewed for plain error only. See
United States v. Peppe, 80 F.3d 19, 22 (1st Cir. 1996).
After careful review of the parties' briefs and the record,
we find no error.
The sentencing guidelines provide that a fine must
be imposed within a specified range unless a defendant is
unable to pay. See U.S.S.G. 5E1.2(a)(b). When a
sentencing court finds a defendant unable to pay the fine
established by the guidelines, "the court may impose a lesser
fine or waive the fine." U.S.S.G. 5E1.2(f). Here, the
district court expressly found that, based on the defendant's
financial condition, "the imposition of a fine within the
required range is not viable," and, instead of imposing a
fine within the applicable range of $10,000 to $100,000,
fined the defendant $500. The court was authorized by the
guidelines to do so. See U.S.S.G. 5E1.2(f). There was no
plain error. Cf. United States v. Rivera, 68 F.3d 5, 8 (1st
Cir. 1995) (no plain error in imposing fine well below
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guideline minimum where defendant lacked apparent source of
funds).
Affirmed. See Loc. R. 27.1.
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