United States v. Perez Morales

• Court: Court of Appeals for the First Circuit
• Decided: December 11, 1992
• Docket: 92-1409
• Status: Published

Opinion

USCA1 Opinion

December 11, 1992     [NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

                                 ____________________

No. 92-1409 

                                    UNITED STATES,

                                      Appellee,

                                          v.

                           ANGEL PEREZ MORALES, a/k/a TATO,

                                Defendant, Appellant.
                                 ____________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                           FOR THE DISTRICT OF PUERTO RICO

[Hon. Juan M. Perez-Gimenez, U.S. District Judge]
                                               ___________________
                                 ____________________

                                        Before

                                Selya, Cyr and Boudin,
                                   Circuit Judges.
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                                 ____________________

Angel Perez Morales on brief pro se.
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            Daniel F. Lopez-Romo,  United States Attorney, Robert S.  Mueller,
            ____________________                           ___________________
        III,  Assistant  Attorney General,  Mary  Lee Warren,  Chief,  Lena D.
        ___                                 ________________           _______
        Mitchell and William H. Kenety, Attorneys, Narcotic and Dangerous Drug
        ________     _________________
        Section,  Criminal  Division,  Department  of Justice,  on  brief  for
        appellee.

                                 ____________________

____________________

Per  Curiam.   Angel  Perez Morales  (defendant) appeals
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            from  the denial  of his  motion  for correction  of sentence

            under former Fed.  R. Crim. P. 35(a).1  We  find no error and

            therefore affirm.  

                 Defendant was one of thirty-nine persons charged in 1987

            with various offenses involving the importation of controlled

            substances  from  Colombia.   In  April  1988, defendant  was

            convicted  of  four  such  offenses:   conspiring  to  import

            marijuana and  cocaine (Count  One), aiding and  abetting the

            importation  of  marijuana  and  the  importation  of cocaine

            (Counts  Two   and  Seven),  and  aiding   and  abetting  the

            possession  of  cocaine  with  intent  to  distribute  (Count

            Eight).   At  sentencing, he  received consecutive  five-year

            prison terms on  each count and a $10,000 fine  on Count One.

            On  appeal,  this court  reversed  defendant's  conviction on

            Count  Seven while affirming the  other three.  United States
                                                            _____________

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            1.  Applicable  to offenses  committed prior  to November  1,
            1987, former  Fed. R. Crim. P. 35  reads in pertinent part as
            follows:

                      (a)   Correction of  Sentence.  The  court may
                 correct  an illegal  sentence at  any time  and may
                 correct  a sentence  imposed  in an  illegal manner
                 within the  time provided herein for  the reduction
                 of sentence.
                      (b)    Reduction of  Sentence.    A motion  to
                 reduce a sentence  may be made ...  within 120 days
                 after the  sentence is  imposed ..., or  within 120
                 days after receipt by the court of a mandate issued
                 upon affirmance of the judgment or dismissal of the
                 appeal, or within 120 days after entry of any order
                 or judgment of the  Supreme Court denying review of
                 ... a judgment of conviction ....

v. Aponte-Suarez, 905 F.2d 483 (1st Cir. 1990), cert. denied,
               _____________                                ____________

            111 S. Ct. 975 (1991). 

                 On June 3, 1991 (104 days after the denial of certiorari

            on February 19), defendant through counsel filed a motion for

            reduction and  correction of  sentence under former  Rule 35.

            This motion  primarily challenged the length  of imprisonment

            but  also  sought remission  of the  $10,000  fine due  to an

            alleged  inability  to pay.    The  district court  summarily

            denied the motion on July  2, 1991, and no appeal was  taken.

            On  October  25,   1991  (248  days   after  the  denial   of

            certiorari), defendant filed the  instant pro se motion under

            Rule 35(a) to correct an illegal sentence.  His central claim

            is that the district  court, in imposing the fine,  failed to

            consider the factors enumerated in 18 U.S.C.   3622 (repealed

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as  of November  1, 1987).2   The  district court  denied the

            motion due to lack of jurisdiction, and this appeal followed.

                 We  agree with  the district  court's disposition.   The

            time  limitations imposed  by Rule  35 are  jurisdictional in

            nature.    United States  v.  Addonizio,  442 U.S.  178,  189
                       _____________      _________

            (1979).    Defendant's motion  failed  to  comply with  those

            limitations.    Accordingly, only  if  the fine  here  was an

            "illegal sentence" (which may be corrected "at any time")--as

            opposed  to one  "imposed  in an  illegal  manner" (which  is

            subject to the 120-day limitation)--would the district  court

            have  had  jurisdiction to  award  relief.   Yet  defendant's

            challenge is not to the legality of the fine per se:  

____________________

            2.  18  U.S.C.     3622(a)  provided  in  pertinent  part  as
            follows:

                      In determining  whether to  impose a  fine and
                 the amount of a fine, the court shall  consider, in
                 addition to other relevant factors--
                      (1)   the  nature  and  circumstances  of  the
                 offense;
                      (2) the  history  and characteristics  of  the
                 defendant;
                      (3) the defendant's income,  earning capacity,
                 and financial resources;
                      (4) the burden that  the fine will impose upon
                 the  defendant,  any   person  who  is  financially
                 dependent on  the  defendant, or  any other  person
                 (including  a government) that would be responsible
                 for the welfare of any person financially dependent
                 on  the  defendant,  relative to  the  burden  that
                 alternative punishments would impose;
                      (5) any  pecuniary loss inflicted  upon others
                 as a result of the offense;
                      (6)  whether  restitution is  ordered  and the
                 amount of such restitution; [and]
                      (7)  the  need  to  deprive  the  defendant of
                 illegally obtained gains from the offense ....

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[A]n "illegal sentence"  is one which is  ambiguous
                 with  respect to the time and manner in which it is
                 to be served, is internally contradictory,  omits a
                 term  required   to  be  imposed  by   statute,  is
                 uncertain as  to the substance of  the sentence, or
                 is a sentence which the judgment of conviction does
                 not authorize.

            United States v. Ames, 743 F.2d  46, 47 (1st Cir. 1984)  (per
            _____________    ____

            curiam), cert.  denied, 469  U.S. 1165 (1985);  accord, e.g.,
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            United States v. Becker,  536 F.2d 471, 473 (1st  Cir. 1976);
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            8A  Moore's  Federal Practice     35.06[3],  at 35-55  (1992)
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            ("illegal  sentences are essentially  only those which exceed

            the  relevant  statutory  maximum  limits  or  violate double

            jeopardy or are ambiguous or internally contradictory").  The

            fine  here suffers from none  of these deficiencies.   It was

            well below  the statutory  maximum  of $250,000  and was  not

            otherwise contrary  to applicable law.   Instead, any failure

            by the district court to consider the   3622(a) factors would

            render  the fine  one "imposed  in an  illegal manner."   Cf.
                                                                      ___

            United  States v. Celani, 898  F.2d 543 (7th  Cir. 1990) (per
            ______________    ______

            curiam) (in Rule 35(a)  context, allegation that court failed

            to   consider   required  statutory   criteria   in  ordering

            restitution  is  a challenge,  not  to  the  legality of  the

            sentence  itself, but to the manner in which it was imposed).

            Defendant's motion is thus  barred by the 120-day limitation.

We note that, even if there were no  jurisdictional bar,

            defendant's challenge  to the  fine  would appear  meritless.

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The district court was not required  to make specific written

            or oral findings  relating to  the   3622(a)  factors.   See,
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            e.g., United States v. Wilfred American Educ. Corp., 953 F.2d
            ____  _____________    ____________________________

            717,  720 (1st  Cir. 1992).   Nor will  we "presume  that the

            district  court  declined  to consider  the  relevant section

            3622(a) evidence contained in the record."  Id. at 719.  Here
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            the   pre-sentence  report   contained  information   on  the

            principal  factors  identified  by  the statute.    The  only

            potentially significant  factor not discussed is  the need to

            deprive a defendant  of illegal  gains and  omission of  such

            discussion,  presumably  on  the   ground  that  it  was  not

            relevant, hardly prejudiced defendant  here.  What remains of

            defendant's  argument is  a  disagreement  with the  district

            court's exercise of its judgment.  

                 Affirmed.
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