USCA1 Opinion
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 92-2406
EFRIAM NATANEL,
Petitioner, Appellant,
v.
UNITED STATES OF AMERICA,
Respondent, Appellee.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Edward F. Harrington, U.S. District Judge]
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Before
Breyer, Chief Judge,
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Torruella and Cyr, Circuit Judges.
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Efriam Natanel on brief pro se.
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A. John Pappalardo, United States Attorney, and Stephen P.
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Heymann, Assistant United States Attorney, on brief for appellee.
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May 14, 1993
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Per Curiam. Petitioner Efriam Natanel was convicted in
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1989 on a single count of distributing more than 500 grams of
cocaine, in violation of 21 U.S.C. 841(b)(1)(B). He was
given a six-year term of imprisonment, to be followed by a
four-year period of supervised release, and was ordered to
pay a $20,000 fine. This court affirmed his conviction on
appeal. United States v. Natanel, 938 F.2d 302 (1st Cir.
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1991), cert. denied, 112 S. Ct. 986 (1992). Following his
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unsuccessful pursuit of motions for a new trial and for
reduction of sentence, petitioner filed a pro se motion under
28 U.S.C. 2255 to vacate the $20,000 fine, alleging that it
had been imposed in violation of the governing statute. From
the district court's denial of this motion, petitioner now
appeals.1 We affirm.
As the crime here occurred in May 1987, the court
imposed the fine pursuant to the applicable pre-Guidelines
statute. See 18 U.S.C. 3622(a). This provision listed
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various factors that the sentencing court "shall consider" in
deciding whether to impose a fine and the amount thereof--
including "the defendant's income, earning capacity, and
financial resources" and "the burden that the fine will
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1. Due to the sentencing judge's intervening retirement, a
different district court judge handled the 2255 petition.
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impose upon the defendant."2 Petitioner argues that the
sentencing court failed to explain its reasons, pursuant to
these criteria, for imposing the fine. He argues that the
court specifically failed to consider his financial status.
And he argues that the court abused its discretion in
imposing the fine in the face of his demonstrated inability
to pay it. We find these assertions unpersuasive.3
Contrary to petitioner's first contention, this court
has held (in accordance with the majority of other circuits)
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2. Section 3622(a) provided in relevant part:
(a) In determining whether to impose a fine and
the amount of a fine, the court shall consider, in
addition to other relevant factors--
(1) the nature and circumstances of the
offense;
(2) the history and characteristics of the
defendant;
(3) the defendant's income, earning capacity,
and financial resources;
(4) the burden that the fine will impose upon
the defendant, any person who is financially
dependent on the defendant, or any other person
(including a government) that would be responsible
for the welfare of any person financially dependent
on the defendant, relative to the burden that
alternative punishments would impose;
....
(7) the need to deprive the defendant of
illegally obtained gains from the offense ....
3. The government argues, and the district court found, that
petitioner waived this issue, having failed both to object
thereto at sentencing and to raise it on direct appeal. See,
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e.g., United States v. Frady, 456 U.S. 152 (1982) (applying
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"cause and prejudice" test to procedural defaults in 2255
context). As we find petitioner's claim to be without merit,
we need not address the question of waiver. See, e.g.,
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Murchu v. United States, 926 F.2d 50, 53 n.4 (1st Cir.) (per
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curiam), cert. denied, 112 S. Ct. 99 (1991).
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that "specific findings ... are not mandated by section
3622(a)," so long as the record otherwise "enables adequate
appellate review." United States v. Wilfred American Educ.
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Corp., 953 F.2d 717, 720 (1st Cir. 1992) (citing cases); see
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also United States v. Savoie, 985 F.2d 612, 620 (1st Cir.
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1993) (adopting same rule in Guidelines case). His second
assertion--that the court failed to consider his financial
status--is equally misplaced. The presentence report (PSI)
addressed this issue at some length, and "[w]e will not
presume that the district court declined to consider the
relevant section 3622(a) evidence contained in the record."
Wilfred American, 953 F.2d at 719. "There is no abuse of
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discretion when the court had before it information bearing
on all the relevant factors,... absent a record showing the
court refused to consider the 3622(a) factors." United
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States v. Weir, 861 F.2d 542, 545 (9th Cir. 1988), cert.
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denied, 489 U.S. 1089 (1989) (quoted in United States v.
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Penagaricano-Soler, 911 F.2d 833, 847 n.17 (1st Cir. 1990)).
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Moreover, petitioner's attorney raised this very issue when
addressing the court immediately prior to the imposition of
sentence.
In his final argument, petitioner suggests that
3622(a) requires a court, not only to consider a defendant's
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financial condition, but to ensure that any fine imposed is
reasonably consistent with his ability to pay. We need not
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decide whether such a requirement can be read into the
statute, for (assuming arguendo that it can be) we think the
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fine here is consistent therewith. To be sure, petitioner
appears to lack the present ability to pay $20,000. The PSI,
reciting financial data submitted by petitioner, lists total
liabilities exceeding $81,000 along with negligible assets.4
And while the government argues that petitioner retained some
undisclosed assets (in the form of his share of the drug
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4. According to the PSI, petitioner's principal liability is
a $49,000 obligation to the state welfare department for past
child support. He is also described as having over $30,000
in outstanding loans from four family members, apparently to
help pay for legal expenses. (To what extent these loans
covered such reimbursable matters as bail bond is not
indicated.)
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proceeds),5 these would fall well short of overcoming the
reported deficit in his personal finances.
Nonetheless, as indicated by the reference in
3622(a)(3) to "earning capacity," a defendant's future
ability to pay is part of the equation. And petitioner's
employment history reflects a fair degree of accomplishment
and aptitude. He operated his own business for several
years. He thereafter served as a motor coach operator,
earning praise as a "valued employee." And he simultaneously
served on the executive board of the transit union, helping
to negotiate labor agreements and "provid[ing] the leadership
and counsel necessary to the survival of the bargaining
unit." Given this record, and notwithstanding several
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5. The government had recommended a fine of $20,000 on the
ground that such figure corresponded to the then-prevailing
price for a kilogram of cocaine (the amount involved in the
sale). The court agreed that such recommendation was
"proper." Regardless of the share of the proceeds actually
retained by petitioner, such action is consistent with the
"need to deprive the defendant of illegally obtained gains."
18 U.S.C. 3622(a)(7).
Relying on United States v. Wells Metal Finishing, Inc.,
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922 F.2d 54, 58 (1st Cir. 1991), the government now contends
that the court's action also constituted an implicit finding
that petitioner had access to undisclosed assets. We need
not decide this matter. Even if the government were correct
in this regard, but cf. United States v. Rowland, 906 F.2d
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621, 624 (11th Cir. 1990) (finding of undisclosed assets
"must be reasonably supported by probative evidence"), it
would matter little. The government acknowledges that it is
unclear what portion of the proceeds was paid to petitioner.
And given the government's commendably candid portrayal of
petitioner, at sentencing, as "a low-level member of the
distribution chain," it is fair to infer that his share was
less than substantial. Even if he retained access to such
funds, therefore, that fact would make little difference.
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countervailing factors,6 the district court could reasonably
have believed that petitioner had "at least a hope" of being
able to pay the fine imposed. United States v. Mahoney, 859
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F.2d 47, 52 (7th Cir. 1988) (restitution order under
similarly worded statute).
It is also noteworthy that petitioner was facing a fine
of up to $2,000,000. The imposition of a fine 1/100th that
size obviously reflects an appreciation of his financial
status. See, e.g., United States v. Pilgrim Market Corp.,
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944 F.2d 14, 22-23 (1st Cir. 1991). More generally, it is
not disputed that the fine here was fully consistent with the
other 3622(a) factors--particularly the "nature of the
offense" and (as mentioned) the "need to deprive the
defendant of illegally obtained gains." We therefore find
that the sentencing court acted within its discretion in
imposing the $20,000 fine. See, e.g., United States v. Levy,
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897 F.2d 596, 597, 599 (1st Cir. 1990) (upholding $15,000
fine imposed pursuant to 3622(a) even on assumption that
defendant was then "penniless").
Affirmed.
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6. Petitioner is reported to have left school (in Israel) in
the 7th or 8th grade. While he speaks English well, he can
read it only "a little." In the aftermath of a work injury,
he suffers from recurring (but non-disabling) back pain which
requires daily medication. And he is now approximately 57
years of age.
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