USCA1 Opinion
January 3, 1994 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 93-1624
UNITED STATES,
Appellee,
v.
JOHN ARIAS,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ernest C. Torres, U.S. District Judge]
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Before
Torruella, Boudin and Stahl,
Circuit Judges.
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Tina Schneider on brief for appellant.
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Edwin J. Gale, United States Attorney, Margaret E. Curran
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and Lawrence D. Gaynor, Assistant United States Attorneys, on
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brief for appellee.
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Per Curiam. Defendant-appellant John Arias pled guilty
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to a charge of possession of an unregistered firearm, see 26
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U.S.C. 5861(d), and a charge of possession of a weapon by a
convicted felon, see 18 U.S.C. 922(g)(1). At sentencing,
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the district court applied the cross-reference provision of
U.S.S.G. 2K2.11 and set appellant's base offense level at
28, based on the applicable guideline for attempted murder.
See U.S.S.G. 2X1.1, 2A2.1. Arias challenges his sentence,
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claiming that the district court improperly applied the
cross-reference provision. Arias also appeals from the
imposition of a fine and the cost of supervised release. We
affirm.
I.
We take the relevant facts from the pre-sentence
investigation report (PSI) and the transcript of the
sentencing hearing. See, e.g., United States v. Connell, 960
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1. The guideline states in relevant part:
(c) Cross Reference
(1) If the defendant used or possessed any firearm
or ammunition in connection with the
commission or attempted commission of another
offense, . . . apply--
(A) 2X1.1 (Attempt, Solicitation, or
Conspiracy) in respect to that other
offense, if the resulting offense level
is greater than that determined above; .
. .
U.S.S.G. 2K2.1(c)(1)(A) (Nov. 1992).
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F.2d 191, 192-93 (1st Cir. 1992). On November 15, 1992, at
approximately 11:15 p.m., appellant attempted to enter La
Frangancia Nightclub in Providence. Harry Van Leuven and
Bienvenido Marrero were working a security detail there. The
owner of the nightclub asked Van Leuven to remove appellant
from the premises because he had caused trouble there in the
past. Van Leuven did so, assisted by Marrero. Before
departing, appellant said that he would come back and kill
Van Leuven.
Approximately fifteen minutes later, appellant returned
with a loaded sawed-off shot gun and entered the nightclub.
He pointed the shotgun at Van Leuven. Marrero grabbed the
barrel of the shotgun and jerked it up towards the ceiling.
The shotgun fired, blowing a hole in the ceiling. Continuing
to hold the shotgun, Marrero pushed appellant outside the
club and into the street. There, appellant struggled over
the gun with Van Leuven and Marrero. The shotgun discharged
again, hitting no one. Shortly thereafter, Van Leuven and
Marrero subdued appellant.
After Arias pled guilty on February 16, 1993, the PSI
was prepared. The report concluded that the base offense
level should be set at 28, pursuant to the cross-reference
provision of 2K2.1, because appellant used the shotgun in
connection with the offense of attempted murder. Appellant
objected to this application of the guidelines, contending
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that the cross-referenced offense should be aggravated
assault.
The PSI determined the fine range to be $10,000 to
$100,000 pursuant to U.S.S.G. 5E1.2(c)(3). With respect to
appellant's ability to pay a fine, the PSI concluded that
"[b]ased upon the defendant's financial profile, it appears
that he would have little ability to pay a fine."2 The
report further stated, however, that "[Arias] should be
capable of securing employment upon his release." Appellant
objected to the "insinuation" that he would be able to pay
the costs of supervised release.
At sentencing, the district court adopted the factual
findings and guideline application in the PSI. After setting
the base offense level by reference to the guideline for
attempted murder, the district court established the
guideline sentencing range at 63-78 months (adjusted offense
level--25; criminal history category--II) and imposed a
sentence at the bottom end of the sentencing range. In
addition, the court imposed a fine of $50 on each count ($100
total), due immediately, plus the cost of supervised release
(a total of $4,150.80), to be paid in monthly installments of
$115.30 after release from imprisonment.
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2. Arias, a twenty-nine year old, was married and had one
child. He reported that he had no assets, and that he owed
$700 in medical bills. His employment history was sparse and
consisted primarily of low-paying factory jobs. He listed
both his monthly income and expenses at $640.
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II.
On appeal, Arias challenges the application of the
cross-reference provision. According to Arias, it is ultra
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vires the power of the Sentencing Commission to punish for
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conduct that violates state, but not federal, law. Arias
also argues that he was denied due process of law because the
district court sentenced him for committing an offense,
attempted murder, for which he had not been convicted.
These claims were not raised below and are, therefore,
waived. See United States v. Ortiz, 966 F.2d 707, 717 (1st
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Cir. 1992), cert. denied, 113 S. Ct. 1005 (1993). Even if we
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were to address the issues on the merits, we would disagree.
Those circuits which have considered whether the cross-
reference provision of 2K2.1 applies to state offenses, as
well as federal offenses, have held that it does. See, e.g.,
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United States v. Carroll, 3 F.3d 98, 101-02 (4th Cir. 1993)
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(concluding that the Sentencing Commission did not exceed its
mandate by requiring a cross-reference to a state offense);
see also United States v. Anderson, 5 F.3d 795, 802-03 (5th
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Cir. 1993) (interpreting 2K2.1(c) to allow a sentencing
court to use state offenses to enhance a firearms offense
level). Section 2K2.1(c) has also uniformly been interpreted
to extend to uncharged conduct. See, e.g., United States v.
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Corbin, 998 F.2d 1377, 1382-85 (7th Cir. 1993); United States
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v. Smith, 997 F.2d 396, 397 (8th Cir. 1993); cf. United
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States v. Blanco, 888 F.2d 907, 909 (1st Cir. 1989) (noting
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that the guidelines embody "a compromise . . . among
considerations that favor a `real offense' sentencing system
and those that favor a `charge offense' system). We have
previously rejected the argument that sentencing a defendant
on the basis, in part, of uncharged conduct is
unconstitutional. United States v. Sanders, 982 F.2d 4, 10
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(1st Cir. 1992), cert. denied, 113 S. Ct. 2937 (1993).
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Appellant also reiterates on appeal his argument below
that the district court erred in finding that his conduct
while in possession of the firearm amounted to attempted
murder rather than assault. We disagree. Proof at
sentencing need only be by a preponderance of the evidence.
United States v. Jackson, 3 F.3d 506, 509 (1st Cir. 1993).
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In the instant case, Arias threatened to kill Van Leuven
before leaving the nightclub. Shortly thereafter, appellant
returned to the club with a sawed-off shotgun--a very lethal
weapon at close range--and pointed it directly at Van Leuven.
The weapon discharged as the barrel was diverted upwards by
Marrero. After the shotgun fired, appellant struggled to
retain possession of the weapon. We cannot say, on these
facts, that the district court erred in finding that Arias
intended to kill, rather than simply frighten, Van Leuven.
See United States v. Brewster, 1 F.3d 51, 54 (1st Cir. 1993)
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(a sentencing court's factbound determinations are reviewed
for clear error).
III.
The remaining issue is whether the district court erred
in imposing a fine and the costs of supervised release on
appellant. Arias contends that the district court should not
have imposed any fine or costs because he was indigent, his
wife and daughter were receiving welfare benefits, he had a
limited educational and employment background, and he was
subject to deportation upon release from imprisonment.
We discern no error. Both 18 U.S.C. 3572(a) and
U.S.S.G. 5E1.2(d)(2) contemplate that a defendant's "earning
capacity" should be considered in determining whether to
impose a fine, as well as the amount. Appellant is twenty-
nine years old and is in good health. He will be
approximately thirty-four years old when he is released from
prison. Although he did not finish high school, Arias
completed a certificate program in machine processing. He
was employed at the time of his arrest and reported an income
of $640 per month. The PSI concluded that he should be able
to secure employment upon his release from incarceration.
Under the circumstances, we find that the district court
acted well within its discretion in imposing a $100 fine and
the costs of supervised release. See United States v.
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Savoie, 985 F.2d 612, 620 (1st Cir. 1993) (imposition of fine
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under the guidelines is reviewed for abuse of discretion).
The fact that the district court imposed only a nominal fine
and did not require Arias to pay government costs during
incarceration reflects an appreciation by the court of
appellant's financial status. See, e.g., United States v.
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Pilgrim Mkt. Corp., 944 F.2d 14, 23 (1st Cir. 1991). Should
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the appellant be unable to pay even this minimal amount, and
should the government seek to incarcerate him for nonpayment,
appellant would have ample administrative remedies at his
disposal. See, e.g., United States v. Levy, 897 F.2d 596,
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598 (1st Cir. 1990); Santiago v. United States, 889 F.2d 371,
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373-74 (1st Cir. 1989) (per curiam); see also United States
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v. Dominguez, 951 F.2d 412, 416 (1st Cir. 1991) ("an indigent
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defendant cannot be held in prison for failure to pay a
fine"), cert. denied, 112 S. Ct. 1960 (1992).
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Affirmed. See Loc. R. 27.1.
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