USCA1 Opinion

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[NOT FOR PUBLICATION]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
______________
Frattallone, Assistant United States Attorney on
___________
appellee.

Joseph J.
__________
brief for

__________________
__________________

Per Curiam.
__________
unlawful

Appellant Ivan Sanchez-Perez pled guilty to

possession

in

kilograms of

cocaine, and

violation of

21 U.S.C.

sentenced to a
$10,050,

and

term of
a

five

vessel

of

of aiding
955

approximately
and abetting

and 18 U.S.C.

2.

170 months imprisonment,

year period

of

same, in
He
a fine

Instead,

he sought

to vacate his sentence

pursuant to 28 U.S.C.

2255 on

grounds that (1) the imposition

of the fine was a denial

his

due

violation of the

right to

of

release.

a direct appeal.

amendment

was

supervised

Appellant did not file

fifth

34.5

process

eighth amendment prohibition

of

law and

the
of
a

against cruel

and

unusual

punishment; and

(2)

he

was denied

effective

assistance of counsel because his attorney did not object

the

imposition

representation
interest.

We

of
of

the
a

fine

and

co-defendant

affirm

because

the

caused

the district

court's

to

attorney's
conflict

of

dismissal

of

appellant's petition.
Appellant

asserts that

fine upon him because

exempt from a fine;

the court

erred in

(1) he was indigent and

(2) the fine was unduly

imposing a

therefore was
burdensome upon

him

and his daughter to whom he is obligated to provide $200

per

month

in

child support;

specific findings of
imposition of

and

the reasons

fines only for

(3)

the

court made

for the fine.

abuse of

We

discretion.

no

review
United
______

States v. Savoie, 985 F.2d 612, 620 (1st Cir. 1993).

______
______

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The court did

fine.

not abuse its

According to the

appellant's sentencing,

discretion in imposing

guidelines in effect at the

the court

was required to

time of
impose a

fine unless

a defendant established that "he

and, even with

the use of a

reasonable installment schedule

[wa]s not likely to become able to pay

_________________________________
fine required by the
of a

fine would

U.S.S.G.

burden

fine is the

demonstrate

Savoie, 985
______

F.2d at

that

620.

a fine,

physical

it also

and

added).1

his

case

is

defendant's

an

exception."

presentence report

not appear to have the

reflected that

emotional

Hence, under

rule--and it is

Although the

stated that appellant did

pay

of the

defendant's dependents."

5E4.2(f) (1988) (emphasis

to

all or part

preceding provisions, or (2) imposition

unduly burden the

the guidelines, "a

[wa]s not able

health,

ability to

appellant was

possessed

in good

high

school

diploma, was employed at the time of his arrest, and had been
employed,
years.2

These uncontested

appellant
fine.

at least temporarily,

See
___

(5th Cir.
preclude

for most

facts support a

has the earning capacity

United States
_____________

imposition of

at time

fine), cert.
____

past five

conclusion that

to become able

v. Hagmann, 950
_______

1991) (indigency

of the

to pay a

F.2d 175,

185-86

of sentencing

does not

denied, 113
______

S.Ct. 108

____________________
1. The applicable provision of the current
the same effect. See U.S.S.G.
5E1.2(f).
___
2. The PSI also indicated that
assets of $2,000.
-3-

guideline is to

appellant had

unencumbered

(1992).

Moreover,

evidence

either that

appellant
he

reasonable installment
his

daughter has

payments

he

is

has
unable,

schedule,3 to

been unduly

has

been

with

required

to

adduce

the

use

pay the fine,

burdened as
to

5E4.2(f) (defendant bears burden

not able to

failed

of

See
___

or that

a result

make.

any

of the
U.S.S.G.

of establishing that he is

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

"the burden
U.S.S.G.
"the

capacity and

that the fine places

5E4.2(d).

need

financial resources";

for

However,

the

on . . .

sentence

seriousness of the offense, . . .

law,

to

provide

deterrence."

Id.

just
In

also consider

to

reflect

the

to promote respect for the

punishment and
light

his dependents."

the court must

combined

and (2)

of

to

afford

the evidence

adequate
supporting

__
appellant's
effect

earning capacity and the lack of evidence of any

on appellant's

imposition of

daughter, we

think that

a fine beneath the $17,500

the court's

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 standcommitted fine, failure to make the required payments will
not delay his release from prison.
-4-

by the guidelines4

is adequate indication

these factors into

account.

that it took

See Hagmann, 950

___ _______

all

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

did consider defendant's ability to pay and is

court

sufficient to

allow for adequate appellate review, the sentencing court was

not

required

to make

specific

reasons for imposing the fine

at 620; United

findings

it did.

States v. Wilfred

or delineate

See Savoie, 985

___ ______

American Educ. Corp.,

its
F.2d
953

______________

____________________________

F.2d 717, 719-20 (1st Cir. 1992).

Finally, given that
of

the

fine

upon

appellant,

ineffective assistance
predicated on

we find no error

of counsel

we

in the imposition

reject

his

insofar as that

counsel's alleged errors in

claim

of

claim is

failing to object

to the fine. To the extent appellant's claim is predicated on

counsel's

alleged

conflict

dismissal essentially for the

of

interest,

we

affirm

its

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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