United States v. Cordova Gonzalez

USCA1 Opinion




[NOT FOR PUBLICATION]


UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT


____________________

No. 96-1146

UNITED STATES,

Appellee,

v.

ANTONIO CORDOVA GONZALEZ,
a/k/a POTI, a/k/a EL VIEJO,

Defendant, Appellant.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Juan M. Perez-Gimenez, U.S. District Judge] ___________________
____________________

Before

Torruella, Chief Judge, ___________

Coffin and Campbell, Senior Circuit Judges. _____________________

____________________

Carlos Vazquez Alvara, with whom Benicio Sanchez Rivera, Federal _____________________ ______________________
Public Defender, and Gustavo A. Gelpi, Jr., Assistant Federal Public _____________________
Defender, were on brief for appellant.
Nelson Perez Sosa, Assistant United States Attorney, with whom __________________
Guillermo Gil, United States Attorney, Jose A. Quiles Espinosa, Senior _____________ _______________________
Litigation Counsel and Edwin O. Vazquez Berrios, Assistant United __________________________
States Attorney, were on brief for appellee.

____________________

November 19, 1996

____________________




















Per Curiam. In his appeal from his sentence, ___________

appellant contends that the court committed plain error in

imposing a $15,000 fine. There was no plain error. The

presentence investigation report, while it did not recommend

a fine because of defendant's presumed inability to pay it,

also indicated that defendant had assets of approximately

$21,500 and, in addition, any moneys that he may receive if

his ex-wife's bankruptcy case were resolved. We have held

that, under the relevant Guidelines, "a fine is the rule

and it is the defendant's burden to demonstrate that his case

is an exception." United States v. Savoie, 985 F.2d 612, 620 _____________ ______

(1st Cir. 1993); see also United States Sentencing _________

Commission, Guidelines Manual, 5E1.2(a) (Nov. 1995). The __________________

amount the court imposed was the minimum fine within the

applicable guideline range. In the present circumstances, we

cannot say the district court's imposition of a fine

constituted plain error, as we would need to conclude in

order to overturn the district court's action, given

appellant's failure to object. See United States v. Dietz, ___ _____________ _____

950 F.2d 50, 55 (1st Cir. 1991) ("We have repeatedly ruled,

in connection with sentencing as in other contexts, that

arguments not seasonably addressed to the trial court may not

be raised for the first time in an appellate venue.") If it

turns out that appellant should truly lack the assets needed

to pay the fine when required to do so, he can, of course,



-2-













offer his inability to pay as an excuse then. See 18 U.S.C. ___

3569 (1985 & Supp. 1996); see also Tate v. Short, 401 U.S. ________ ____ _____

395, 398 (1971).

Affirmed. ________













































-3-