USCA1 Opinion
August 13, 1992 [NOT FOR PUBLICATION]
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No. 91-2253
UNITED STATES OF AMERICA,
Appellee,
v.
DOMINGO RAMIREZ, SR.,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Gene Carter, U.S. District Judge]
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Before
Breyer, Chief Judge,
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Campbell, Senior Circuit Judge,
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and Cyr, Circuit Judge.
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Andrew W. Sparks and Drummond & Drummond on brief for appellant.
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Richard S. Cohen, United States Attorney, Jonathan R. Toof,
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Assistant United States Attorney, and Margaret D. McGaughey, Assistant
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United States Attorney, on brief for appellee.
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Per Curiam. Appellant Domingo Ramirez, Sr. was
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charged in a two-count indictment with (1) conspiring to
possess over 500 grams of cocaine with the intent of
distributing it in violation of 21 U.S.C. 841(a)(1),
841(b)(1)(B) and 846; and (2) possession of cocaine with
intent to distribute, and aiding and abetting the possession
with the intent to distribute in violation of 21 U.S.C.
841(a)(1) and 841(b)(1)(B), and 18 U.S.C. 2. On July 19,
1991, appellant pleaded guilty to the first count of the
indictment. The district court dismissed count II on the
government's motion.
The Presentence Report indicates a criminal history
category of III and an initial base offense level of 26. See
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U.S.S.G. 2D1.1(c)(9) (offense involving at least 500 grams
of cocaine but less than two kilograms). The district court
rejected the recommendation of the government and the
conclusion in the Presentence Report that appellant receive a
two-level increase based on his role as an organizer. The
court accepted, however, a two-level decrease based upon
appellant's acceptance of responsibility. Thus, a base
offense level of 24 resulted.
Accordingly, the district court sentenced appellant
on October 25, 1991 to a term of 78 months imprisonment, a
supervised release term of five years and a fine of $15,000.
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On appeal, appellant challenges only the fine portion of his
sentence. His attack is two-fold.
1. Appellant claims that in imposing the $15,000
fine the district court did not consider all of the factors
contained in 5E1.2(d) and, as a result, violated the Eighth
Amendment's prohibition against excessive fines. Section
5E1.2(a) provides that "[t]he court shall impose a fine in
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all cases, except where the defendant establishes that he is
unable to pay and is not likely to become able to pay any
fine." (emphasis added). Among the factors the court "shall
consider" are the need to provide punishment, evidence
concerning defendant's ability to pay a fine "in light of his
earning capacity and financial resources" and the burden a
fine would place on defendant and his or her dependents. See
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5E1.2(d)(1)-(3).
Appellant first argues that the district court was
required to make specific findings as to each factor. See
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United States v. Walker, 900 F.2d 1201, 1206 (8th Cir. 1990)
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(per curiam) (district court required to make "specific
findings on the record"). We addressed and rejected a
similar claim in the context of 18 U.S.C. 3622(a) (now
repealed) which contained virtually the same language as
5E1.2(d). See United States v. Wilfred American Educational
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Corp., 953 F.2d 717 (1st Cir. 1992). There we stated that
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"[w]e will not presume that the district court declined to
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consider the relevant section 3622(a) evidence contained in
the record" and held, as a result, that the court was not
required to make specific written or oral findings regarding
each factor. Id. at 719-20. We do not see any reason not to
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extend Wilfred American to cases involving 5E1.2(d) of the
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Sentencing Guidelines.
On review of the record, it is plain that the
district court considered the factors listed in 5E1.2(d).
It not only had before it the Presentence Report, but
appellant's counsel brought to the attention of the court the
financial condition of appellant at the sentencing hearing.
See Wilfred American, 953 F.2d at 720 (where sentencing court
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had before it financial data provided by appellant, including
affidavits, letters and a sentencing memorandum, as well as
the Presentence Report, it is clear that court considered
relevant factors). We therefore turn to the merits.
The Presentence Report contains an employment
history. Appellant, who has a high school education and is
proficient in five languages (English, French, Greek, Spanish
and the Haitian dialect), first worked in the United States
for several trucking firms. From 1982 to 1987, he was a
heavy equipment operator and earned from $17.00 per hour to
$23.00 per hour. From 1987 up until his arrest for the
current offense, appellant was self-employed as the D.R.
Bulldozing Service.
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The Presentence Report reveals that appellant's
only assets are a pick-up truck worth $12,000 and jewelry
valued at $2,000. He is making payments on the truck
(including insurance) of $337 per month. Appellant is
married with a small child. The Presentence Report
concludes:
In the past, the defendant has worked for
companies that have paid him a good
living wage. It would appear that since
the defendant is employable and capable
of earning a decent income, he would be
able to pay at least a minimal fine.
Presentence Report, at 64.
The district court adopted 64 and determined that
appellant had the earning capacity to pay a fine of $15,000.
It noted that, when on supervised release, appellant would be
required to work and hopefully would be able to pay the fine
within two years. If appellant's circumstances should change
in the future, the court noted, there were procedures for
adjusting the amount of the fine.
"[W]e review the lower court's application of [a]
guideline to a given set of facts only for clear error."
United States v. Tardiff, No. 91-2040, slip op. at 13 (1st
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Cir. July 8, 1992). Appellant argues that the following
factors render the court's finding plainly wrong. First, he
maintains that he does not have the financial resources with
which to pay a fine. Specifically, he claims that he lost
all of the heavy equipment he owned when he put the equipment
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up as security for the purchase of the cocaine. He argues
that he will be 57 years old when released and that
employment prospects will be dim for such a convicted felon.
He adds that he will be responsible for the support of his
wife and child which further limits his capacity to pay a
fine. That he was unable to post bail and is represented by
court-appointed counsel, appellant goes on, are "significant
indicators of present inability" to pay any fine. He
concludes that the evidence in the Presentence Report that in
the past he had well-paying construction jobs and is in good
health is not sufficient to satisfy the Eighth Amendment.
We cannot find that the court's conclusion that
appellant had the financial ability to pay a fine was clearly
erroneous. Appellant had a solid work history operating
heavy machinery. He provides no evidence, other than the
fact that he will be a 57-year-old convicted felon when
released, that shows why this work would not be available to
him on release. Moreover, the argument that his present
financial status is so bleak that he was forced to accept a
court-appointed attorney, misses the mark. It is his future
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earning capacity, not the state of his current assets that is
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relevant. See United States v. Quan-Guerra, 929 F.2d 1425,
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1427 n.1 (9th Cir. 1991); United States v. Perez, 871 F.2d
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45, 48 (6th Cir.) (current assets do not determine whether a
defendant entitled to be relieved of obligation to pay a
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fine), cert. denied, 492 U.S. 910 (1989). The fact that the
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fine imposes a heavy burden on appellant is to be expected
given that the Guidelines require that the amount of a fine
be punitive. See United States v. Mastropierro, 931 F.2d
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905, 907 (D.C. Cir. 1991) (citing U.S.S.G. 5E1.2(e) and
5E1.2(d)(1)).
2. Appellant's second challenge to the fine is
that the district court misapplied the Guidelines when it
determined that the minimum fine was $12,500. Appellant is
correct that the minimum fine for a base offense level of 24
under the version of the Guidelines in effect when he was
sentenced was $10,000, not $12,500. See 5E1.2(c)(3)
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(effective November 1, 1990). However, appellant did not
raise this issue below. Arguments not raised at the time of
sentencing are waived. United States v. Ortiz, Nos. 91-1974
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and 91-1975, slip op. at 18 (1st Cir. June 10, 1992).
Nonetheless, we may review this claim under Fed. R. Crim. P.
52(b): "[P]lain errors or defects affecting substantial
rights may be noticed although they were not brought to the
attention of the court." Thus, the fine portion of the
sentence is subject to "plain error" review. See United
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States v. Rodriguez, 938 F.2d 319, 321 (1st Cir. 1991).
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The government points out that even if the court
had used the correct version of 5E1.2(c)(3), the fine of
$15,000 still falls within the prescribed range. Thus, it
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argues, the error could not have affected appellant's
"substantial rights." Technically there may be truth to this
argument. Given, however, the relative simplicity of the
district court's now reviewing the fine in light of the
correct range, and the undesirability of appellant's
perceiving himself to be the victim of an unfairness so
easily corrected, we hold that under the circumstances of
this case, the failure to use the correct fine range did
affect appellant's rights under Rule 52(b). A similar case
although not involving plain error, is Ortiz. There we held
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that the district court should not have enhanced the
defendant's base offense level for his supervisory role in
the drug-trafficking operation. We remanded for sentencing
even though the sentence actually imposed still fell within
the corrected Guideline. Slip op. at 20. We held:
We think the correct rule of law is
that, where it appears reasonably likely
that the district judge selected a
sentence because it was at or near a
polar extreme (whether top or bottom) of
the guideline range that the judge
thought applicable, the court of appeals
should vacate the sentence and remand for
resentencing if it is determined that the
court erred in its computation of the
range, notwithstanding that there may be
an overlap between the "right" and
"wrong" sentencing ranges sufficient to
encompass the sentence actually imposed.
It is only where it is reasonably clear
from the record that the trial court
would have imposed the same sentence
under either range that an appellate
court should leave the sentence intact.
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Id. at 20-21 (citations omitted).
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Here the $15,000 was at the very low end of a range
that went up to $2,000,000. Clearly, the court intended that
appellant pay a relatively minimal fine. In these
circumstances, perhaps the court decided that a $2,500
increase over the minimum was the appropriate fine. Absent
some clearer indication that the court believed a $15,000
fine to be the appropriate one even under the correct
Guideline, a remand is indicated in the interest of justice.
Thus, we affirm the finding of appellant's ability
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to pay a fine, but vacate and remand the fine portion of the
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sentence for resentencing in accordance with this opinion.
We, of course, do not mean to require the imposition of any
lower fine should the court conclude under the correct
guideline that the present fine is proper.
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