USCA1 Opinion
October 17, 1995
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 95-1482
UNITED STATES,
Appellee,
v.
ANGEL VELAZQUEZ,
Defendant, Appellant.
____________________
ERRATA SHEET
The opinion of this court issued on October 16, 1995 is amended
as follows:
On cover sheet, change "Watson, Senior Circuit Judge," to
______________________
"*Watson, Senior Judge,".
____________
*Senior Judge, U.S. Court of International Trade, sitting by
designation.
October 16, 1995
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 95-1482
UNITED STATES,
Appellee,
v.
ANGEL VELAZQUEZ,
Defendant, Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Hector M. Laffitte, U.S. District Judge]
___________________
____________________
Before
Torruella, Chief Judge,
___________
*Watson, Senior Judge,
____________
and Lynch, Circuit Judge.
_____________
____________________
Graham A. Castillo Pagan on brief for appellant.
________________________
Guillermo Gil, United States Attorney, Edwin O. Vazquez,
_______________ __________________
Assistant United States Attorney, and Jose A. Quiles-Espinosa on brief
_______________________
for appellee.
____________________
____________________
*Senior Judge, U.S. Court of International Trade, sitting by
designation.
Per Curiam. Appellant pled guilty to violation of
__________
31 U.S.C. 5316 and 5322, failing to report the
transportation of more than $10,000 in United States currency
from the United States. At the sentencing hearing, the
district court reviewed the plea agreement with appellant,
and appellant indicated that he understood the terms of the
agreement as well as the maximum penalties for the offense.
He now argues that the $500.00 fine imposed by the district
court was excessive and violates the "Excessive Fines Clause"
of the Eighth Amendment.
I.
_
The agreed-to facts, as reflected in the "Plea and
Forfeiture Agreement," indicate that appellant, about to
board an airplane from Puerto Rico to Santo Domingo,
Dominican Republic, was selected for interview by U.S.
Customs agents. Appellant was asked whether he was
transporting over $10,000.00 in U.S. currency. He answered
that he was transporting only $1,200.00. A search of his
bags revealed $25,258.00.
Appellant agreed to plead guilty1 and indicated on
the plea agreement his understanding of the penalties he
faced -- a term of imprisonment of not more than five years,
a fine of up to $250,000.00, and a three-year term of
____________________
1. As part of the plea agreement, the Government agreed to
request the dismissal of Count Two of the Indictment, which
charged appellant with knowingly making a false statement in
violation of 18 U.S.C. 1001.
supervised release. He agreed, too, to forfeit to the
Government 25 percent of the $25,258.00 he was found
transporting ($6,315.00) and to pay a special monetary
assessment of $50.00. Finally, he indicated that he
understood that the court was not bound by the plea
agreement.
At the sentencing hearing, the district court
reviewed the plea agreement with appellant. After
satisfactory response, the court sentenced appellant to a
three-year term of probation, and ordered a fine of $500.00,
a $50.00 special monetary assessment, and the above-described
forfeiture.2 Appellant paid the fine and the special
assessment within a week of the sentencing hearing.
II.
__
Appellant claims that the fine imposed in his case
violates the "Excessive Fines Clause" of the Eighth
Amendment. He does not argue that the court was without
statutory power to impose the fine, that he is unable to pay
the fine, or that there are any double jeopardy or due
process implications. His legal challenge to the fine boils
down to this: since he is already forfeiting a substantial
____________________
2. Under the relevant sentencing guidelines, appellant had
an offense level of 8. At this level, the court could have
imposed a term of 0 to 6 months' imprisonment and a fine of
$1,000.00 to $10,000.00. U.S.S.G. Ch. 5 Pt.A; 5E1.2(c)(3).
-3-
amount of money to expiate his wrongdoing, the addition of
another $500.00 is excessive.
A party bringing an Eighth Amendment excessive fine
claim must show, after a "threshold comparison" between the
gravity of criminal conduct and the severity of the penalty,
an "initial inference of gross disproportionality." United
______
States v. Bucuvalas, 970 F.2d 937, 946 (1st Cir. 1992), cert.
______ _________ ____
denied, 113 S. Ct. 1382 (1993). We can perceive no
______
disproportionality or unfairness here. Cf. United States v.
___ _____________
Pilgrim Market Corp., 944 F.2d 14, 22 (1st Cir. 1991).
______________________
Appellant has no quarrel with the forfeiture of 25% of the
unreported funds, but only with the imposition of the $500.00
fine. That additional3 sum, considered even in conjunction
with the forfeited amount, was well below the statutory and
guideline maximums and did not transgress the Excessive Fines
Clause.
The judgment is affirmed. Loc. R. 27.1.
________
____________________
3. There was never any promise or understanding that the
appellant's total exposure was 25 percent of the amount at
_____
issue, or $6,315.00, compare United States v. Maling, 942
_______ ________________________
F.2d 808, 811 (1st Cir. 1991); rather, it was made clear in
the plea agreement and at the sentencing hearing that the
maximum fine to which appellant was exposed -- $250,000.00 --
was entirely separate from the amount to be forfeited.
-4-
