United States v. Santana Camacho

• Court: Court of Appeals for the First Circuit
• Decided: August 10, 1992
• Docket: 91-2297
• Status: Published

Opinion

USCA1 Opinion

August 10, 1992       [NOT FOR PUBLICATION]

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No. 91-2297 

                                    UNITED STATES,

                                      Appellee,

                                          v.

                                RAMON SANTANO CAMACHO,

                                Defendant, Appellant.

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                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                           FOR THE DISTRICT OF PUERTO RICO

[Hon. Carmen Consuelo Cerezo, U.S. District Judge]
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                                        Before

                                 Breyer, Chief Judge,
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                            Selya and Cyr, Circuit Judges.
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            Ramon Santana Camacho on brief pro se.
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            Daniel  F. Lopez  Romo,  United  States  Attorney,  and  Edwin  O.
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        Vazquez, Assistant United States Attorney, on brief for appellee.
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                 Per Curiam.   Following his conviction on two  counts of
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            bringing  an  illegal  alien  into  the  United  States,   in

            violation  of  8  U.S.C.     1324(a)(1)(A),  defendant  Ramon

            Santana-Camacho was  sentenced  to two  consecutive terms  of

five  years  in prison.    He also  received  fines totalling

            $250,000.  As the offenses occurred in 1986, those fines were

            imposed pursuant to  former 18 U.S.C.    3623(a) (repealed as

            of  November 1, 1987).  See United States v. Wilfred American
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            Educ.  Corp., 953 F.2d 717, 719 n.1 (1st Cir. 1992) (reciting
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            statutory history).   His conviction was  affirmed on appeal.

            United  States v.  Santana-Camacho,  931 F.2d  966 (1st  Cir.
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            1991).   Defendant thereafter  brought a timely  motion under

            former  Fed. R.  Crim. P.  35(a) for correction  of sentence,

            claiming  that  the fines  had  been illegally  imposed.   He

            alleged,  inter alia, that  the court had  failed properly to
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            consider  his   "income,  earning  capacity,   and  financial

            resources,"  as  required by  18  U.S.C.    3622(a)(3).1   In

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            1.  18 U.S.C.   3622(a) provided in relevant part:
                 (a) 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; 
                      (7) the  need  to  deprive  the  defendant  of
                 illegally obtained gains from the offense ....

particular, he contended (1) that this provision necessitated

            a finding  that he was or reasonably would be able to pay the

            fines levied,  and (2) that  the court's implicit  finding in

            this regard was unsupported  by the record.  From  the denial

            of this motion, defendant now appeals.  

                 We find no error.  "There is no abuse of discretion when

            the court  had  before  it information  bearing  on  all  the

            relevant  factors,  including  facts  necessary  to  consider

            imposition of a substantial fine, absent a record showing the

            court  refused to  consider the  section    3622(a) factors."

            United States v.  Weir, 861  F.2d 542, 545  (9th Cir.  1988),
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            cert.  denied, 489 U.S. 1089 (1989).  The district court here
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            had information pertaining to each of the pertinent criteria,

            including defendant's  financial status.   The  court clearly

            considered each  criterion; in fact,  it has  done so  twice,

            first  at  sentencing and  then  in response  to  the instant

            motion.   In balancing  those factors,  the court  acted well

            within   its   discretion,  particularly   given  defendant's

            prominent role in the smuggling organization  and the need to

            deprive him of illegally  obtained gains.  And the  fact that

            the fines  imposed were  only half  of the  statutory maximum

            reflects  an  appreciation   by  the  court  of   defendant's

            financial status.  See, e.g., United States v. Pilgrim Market
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            Corp., 944 F.2d 14, 23 (1st Cir. 1991).
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We need not decide whether   3622(a) requires the court,

            not only  to consider a defendant's  financial condition, but

            to ensure that any fine imposed is reasonably consistent with

            his present or future ability to pay.  Assuming arguendo that
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            such a requirement can be read into the statute, we think the

            fines  here are consistent therewith.   To be sure, defendant

            appears to lack  the present  ability to pay  $250,000.   The

            presentence  report (PSI)  listed his  net worth  as $26,000.

            Furthermore,  contrary to  the  government's suggestion,  the

            record  provides  little  reason  to  believe  that defendant

            possessed,  or had  access to, substantial  additional assets

            that  were not disclosed.  Such a finding "must be reasonably

            supported by probative evidence."   United States v. Rowland,
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            906 F.2d 621, 624 (11th Cir. 1990).  Yet the PSI stated there

            was "no evidence that  the defendant amassed great quantities

            of money  as a  result of his  criminal activity."   Both his

            trial and appellate counsel were  appointed.  See U.S.S.G.   
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            5E1.2,  comment (n.3).  When  arrested, he was  renting a $60

            per month apartment from his niece.  And there was nothing in

            the  record otherwise suggestive of hidden assets, such as an

            "extravagant lifestyle," United States v. Nazifpour, 944 F.2d
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            472,  475  (9th  Cir.  1991) (per  curiam),  or  "significant

            unexplained expenditures."  U.S.S.G.   5E1.2, comment (n.6).

                 Nonetheless,  as   indicated  by  the   reference  in   

            3622(a)(3)   to  "earning  capacity,"  a  defendant's  future

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ability  to pay is part of  the equation.  In contending that

            he has no  realistic prospect of paying the  fines, defendant

            points  to his  self-described  work history,  which consists

            principally of  construction, masonry  and factory jobs.   He

            suggests that such work, while not insubstantial, is unlikely

            to yield the level of income that would permit payment of the

            fines.  Yet this argument ignores the evidence that defendant

            created and headed  a smuggling organization comprising  some

            160   members,   including  recruiters,   transporters,  boat

            captains, and police personnel.  Given the skills necessarily

            entailed in such an endeavor, and given defendant's age (46),

            we think defendant has "at least a hope" of being able to pay

            the fines imposed.  United States v. Mahoney, 859 F.2d 47, 52
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            (7th Cir. 1988) (restitution  order).  Should this prediction

            prove faulty,  and should the government  seek to incarcerate

            him for nonpayment, defendant would have ample administrative

            remedies  at his disposal.  See, e.g., United States v. Levy,
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            897 F.2d 596, 598 (1st Cir. 1990); Santiago v. United States,
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            889 F.2d 371, 373-74  (1st Cir. 1989) (per curiam);  see also
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            United States v. Dominguez, 951 F.2d 412, 416 (1st Cir. 1991)
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            ("an indigent defendant cannot be  held in prison for failure

            to pay a fine").

                 Affirmed. 
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