USCA1 Opinion
September 29, 1992 [NOT FOR PUBLICATION]
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No. 92-1108
RICHARD ALAN WEST,
Plaintiff, Appellant,
v.
UNITED STATES OF AMERICA,
Defendant, Appellee.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Jose Antonio Fuste, 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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Richard Alan West on brief pro se.
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Richard S. Cohen, United States Attorney and F. Mark
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Terison, Assistant United States Attorney, on brief for appellee.
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Per Curiam. Petitioner appeals denial of his motion to
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set aside, vacate, or correct his sentence pursuant to 28
U.S.C. 2255. We affirm the district court's decision
dismissing his petition.
Petitioner was convicted by a jury in August, 1989 on
three counts of distributing cocaine. He was acquitted of a
fourth count of conspiracy. In November, 1989, he was
sentenced to concurrent sentences of fifty-five months on
each of the three counts, followed by five years' supervised
release. He was also fined $2500 per count (total $7500), to
be paid in installments during the five year period of
supervised release. Joined by his three co-defendants,
petitioner appealed his sentence. This court affirmed the
district court's judgment, and the Supreme Court denied
certiorari. United States v. Zuleta-Alvarez, 922 F.2d 33
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(1st Cir. 1990), cert. denied, 111 S. Ct. 2039 (1991).
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Petitioner filed the instant motion, pro se, in October,
1991, alleging six new reasons for relief from his sentence.
The United States Attorney was ordered to answer, and the
motion was referred to the original sentencing judge. In a
lengthy and detailed opinion issued in January, 1992, the
sentencing judge dismissed each of petitioner's six
assignments of error.
On this appeal petitioner reasserts only one of the six
grounds he raised below. He claims that the sentencing judge
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relied upon improper information in finding petitioner
capable of paying the $7500 minimum fine prescribed by the
Guidelines. Petitioner argues that the sentencing judge
infringed upon petitioner's Fifth Amendment privilege against
self-incrimination by accepting the probation officer's
response to petitioner's objection to paragraph 126 of the
presentence report. Paragraph 126 of the presentence report
concluded that because petitioner failed to complete a
required financial statement, he was presumed able to pay the
minimum fine. Petitioner objected that he had filed a
financial statement when arrested, and his situation had not
changed since then. The probation officer's response was
that the post-conviction financial statement sought
significantly more specific information than the one
completed on arrest, and that petitioner's earlier statement
"makes no accounting of his drug sales." Petitioner claims
that the district court's acceptance of the last-quoted
language violated petitioner's Fifth Amendment rights.
The district court responded to petitioner's argument as
follows:
In adopting the probation officer's response to
West's objection ... we simply recognized that
there was not sufficient evidence to determine
whether the fine should be waived or reduced. In
his objection, defendant insisted on standing by
his earlier financial affidavit sworn at the time
of his arrest. It was not West's failure to come
forward with an accounting of his ill-gotten gain,
but rather his refusal to come forward with any
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accounting that led the court to apply the fine
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mandated by section 5E1.2(a) and not find a basis
for the exception of section 5E1.2(f).
Thus petitioner's Fifth Amendment argument was shown to
be baseless. On appeal here petitioner claims that reliance
on his Fifth Amendment privilege was the reason for his
failure to submit the requested financial statement in the
first place. This argument does not appear to have been
clearly raised below. But in any event we cannot credit it
in light of the record before us. Taken as an assertion of
the privilege, it is about 3 years too late and it is plainly
contradicted by the objection petitioner made to the report
at the time.
Petitioner also argues that the district court had
insufficient evidence upon which to determine his ability to
pay. This argument is based on a misunderstanding of the
guidelines. Under 5E1.2(a) the district court was required
to impose a fine unless petitioner established "that he is
unable to pay and is not likely to become able to pay any
fine." U.S.S.G. 5E1.2(a). Accord United States v.
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Marquez, 941 F.2d 60, 65-66 (2d Cir. 1991); United States v.
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Rafferty, 911 F.2d 227, 232-33 (9th Cir. 1990); United States
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v. Perez, 871 F.2d 45, 48 (6th Cir.), cert. denied, 492 U.S.
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910 (1989) (applying similarly-worded successor guidelines).
But see United States v. Walker, 900 F.2d 1201, 1206 n.5 (8th
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Cir. 1990). Since petitioner failed to meet his burden of
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producing evidence demonstrating an inability to pay, the
district court was required to impose at least the minimum
fine.
Petitioner's final argument is that the sentencing court
did not make specific findings concerning the factors
required to be considered under 18 U.S.C. 3572. Petitioner
urges us to rule on this argument without regard to the
district court's current explanation for the fine it imposed.
But we see no reason to avoid the district court's current
explanation. On the contrary, as the Supreme Court has
indicated, the sentencing court may properly rely on its own
memory in ruling on a 2255 motion. Blackledge v. Allison,
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431 U.S. 63, 74 n.4 (1977).
Our own reading of the record, including the court's
explanation of its sentencing decision on the instant motion,
convinces us that it had sufficient evidence and considered
all relevant factors. As we observed in response to a
similar argument made under an almost identically-worded
statute, 18 U.S.C. 3622(a) (now repealed), "we will not
presume that the district court declined to consider the
relevant ... evidence." United States v. Wilfred Am. Educ.
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Corp., 953 F.2d 717 (1st Cir. 1992). The district court was
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not required to write out its findings on each and every
factor, so long as it considered the relevant factors and the
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record was otherwise adequate for appellate review. Id. at
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719-20.1
Petitioner's second point on this appeal, challenging
the statutory authority of the Sentencing Commission to
promulgate certain provisions of the guidelines, was not
raised below. Accordingly it will not be considered for the
first time on appeal. United States v. Pilgrim Market Corp.,
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944 F.2d 14, 21 (1st Cir. 1991); Hernandez-Hernandez v.
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United States, 904 F.2d 758, 764 (1st Cir. 1990).
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For these reasons, the district court's order dismissing
the petition is affirmed.
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1. The record shows that petitioner is 37 years old,
healthy, trained as an electrician's helper and welder. He
offered nothing to contradict the conclusion that he had a
future ability to earn an income sufficient to repay the
minimum fine in installments during his five years on
supervised release.
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