United States v. Arias

• Court: Court of Appeals for the First Circuit
• Decided: January 3, 1994
• Docket: 93-1624
• Status: Published

Opinion

USCA1 Opinion

January 3, 1994       [NOT FOR PUBLICATION]

                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
                                 ___________________

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]
                                             ___________________

                                 ___________________

                                        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
                                                                   ___

            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,
                             ___

            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,
            ___

            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
                     ___ _____________     _____

            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
            ________ ______________    ________

            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
                               _____________     _______

            (1st Cir. 1992), cert. denied, 113 S. Ct. 2937 (1993).
                             ____________

                 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).
            _____________     _______

            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.
                                             ___  ____  ______________

            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,
                                 ________    _____________

            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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