Villacci v. United States
This text of Villacci v. United States (Villacci v. United States) is published on Counsel Stack Legal Research, covering Court of Appeals for the First Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Bluebook
Villacci v. United States, (1st Cir. 1993).
Opinion
USCA1 Opinion
September 29, 1993
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 93-1052
ROLAND D. VILLACCI,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Gene Carter, U.S. District Judge]
___________________
____________________
Before
Breyer, Chief Judge,
___________
Selya and Stahl, Circuit Judges.
______________
____________________
Roland D. Villacci on brief pro se.
__________________
Richard S. Cohen, United States Attorney, and F. Mark Terison,
_________________ _______________
Assistant United States Attorney, on brief for appellee.
____________________
____________________
Per Curiam. Roland Villacci appeals from the dismissal
__________
of a 28 U.S.C. 2255 petition challenging the legality of a
criminal fine. In 1988, petitioner pled guilty to a single
count of conspiracy to possess more than fifty kilograms of
marijuana with intent to distribute. At sentencing on March
2, 1989, the district court calculated under the sentencing
guidelines (hereinafter "guidelines") that petitioner was
subject to a prison term ranging from 77 to 96 months and a
fine ranging from $7500 to $1 million. The court selected
the low end of the applicable range in each instance (77
months in prison and a $7500 fine), and also imposed a three-
year period of supervised release.1 The fine was to be paid
during the supervised release period, with a minimum monthly
payment of $100. Petitioner filed no direct appeal.
Instead, in September 1992 he brought the instant petition in
an attempt to have the fine vacated. Asserting that he was
and would remain unable to pay the fine, he argued that the
court violated 18 U.S.C. 3572 by failing to consider his
ability to pay (along with other factors), failing to make a
specific finding with respect thereto, and failing to hold an
evidentiary hearing.
Contrary to petitioner's suggestion below, it was not
the government's burden to establish his ability to pay a
____________________
1. Subsequently, the prison term was reduced to 60 months
and the period of supervised release was vacated.
fine; rather, it was his burden to establish an inability to
do so. See, e.g., United States v. Savoie, 985 F.2d 612, 620
___ ____ _____________ ______
(1st Cir. 1993) ("[U]nder the guidelines, a fine is the rule-
-and it is the defendant's burden to demonstrate that his
case is an exception").2 In addition, while the sentencing
court must consider ability to pay and other relevant factors
in deciding whether to impose a fine,3 it need not make
specific findings with respect thereto. See, e.g., id.;
___ ____ ___
United States v. Pilgrim Market Corp., 944 F.2d 14, 22-23
______________ _____________________
(1st Cir. 1991); see also United States v. Wilfred American
_________ _____________ ________________
Educ. Corp., 953 F.2d 717, 719-20 (1st Cir. 1992)
_____________
(interpreting similar language in predecessor statute). Nor
____________________
2. The pertinent guideline provision in effect at the time
of petitioner's sentencing makes this plain:
If the defendant establishes that (1) he is
______________________________
not able and, even with the use of a reasonable
installment schedule, is not likely to become able
to pay all or part of the fine required by the
preceding provisions, or (2) imposition of a fine
would unduly burden the defendant's dependents, the
court may impose a lesser fine or waive the fine.
U.S.S.G. 5E4.2(f) (1988) (emphasis added). The applicable
provision in the current guidelines, see U.S.S.G. 5E1.2(a)
___
(1993), is to the same effect.
3. Section 3572(a) provides that, in "determining whether to
impose a fine, and the amount, time for payment, and method
of payment of a fine," the court "shall" consider seven
enumerated factors. These include the following two: (1)
"the defendant's income, earning capacity, and financial
resources"; and (2) "the burden that the fine will impose
upon the defendant [and] any other person who is financially
dependent on the defendant." The guidelines contain nearly
identical language.
-3-
will we "presume that the district court declined to consider
the relevant ... evidence contained in the record." Id. at
___
719. So long as the record "enables adequate appellate
review," id. at 720, the sentencing court need not delineate
___
its reasoning.
Under these standards, we find that the district court
acted well within its discretion in imposing the minimum
$7500 fine. See, e.g., Savoie, 985 F.2d at 620 (imposition
___ ____ ______
Free access — add to your briefcase to read the full text and ask questions with AI
Related
United States v. Pilgrim Market Corporation, United States v. Arnold B. Sussman
944 F.2d 14 (First Circuit, 1991)
United States v. Wilfred American Educational Corporation
953 F.2d 717 (First Circuit, 1992)
United States v. Paul J. Savoie
985 F.2d 612 (First Circuit, 1993)
Cite This Page — Counsel Stack
Bluebook (online)
Villacci v. United States, Counsel Stack Legal Research, https://law.counselstack.com/opinion/villacci-v-united-states-ca1-1993.