United States v. Gonzalez, 9 F.3d 1535, 1st Cir. (1993)
United States v. Gonzalez, 9 F.3d 1535, 1st Cir. (1993)
United States v. Gonzalez, 9 F.3d 1535, 1st Cir. (1993)
3d 1535
Appeal from the United States District Court for the District of Rhode
Island
Barbara A.H. Smith on brief for appellant.
Edwin J. Gale, United States Attorney, and Zechariah Chafee, Assistant
United States Attorney, on brief for appellee.
R.I.
AFFIRMED
Before Breyer, Chief Judge, Selya and Cyr, Circuit Judges.
Per Curiam.
his five-year term of supervised release. This fine amounts to $6,918 and is to
be paid in monthly installments of $115.30 once appellant is released.
According to appellant, U.S.S.G. 5E1.2(i) does not permit such a fine in his
case because the district court "waived" the assessment of a punitive fine.
U.S.S.G. 5E1.2(a) states that "[t]he court shall impose a fine in all cases,
except where the defendant establishes that he is unable to pay and is not likely
to become able to pay any fine." U.S.S.G. 5E1.2(i) states that
[n]otwithstanding ... the provisions of subsection (c) [list of minimum and
maximum fines], but subject to subsection (f) [waiver or imposition of lesser
fine], the court shall impose an additional fine amount that is at least sufficient
to pay the costs to the government of any ... supervised release ordered." In
United States v. Corral, 964 F.2d 83 (1st Cir. 1992), we held that "a district
court may not impose a duty to pay for the costs of incarceration or supervised
release if the defendant is indigent for purposes of a [punitive] fine under
Sentencing Guidelines section 5E1.2(a)." Id. at 84.
Corral is of no avail to appellant for the simple reason that the district court, in
fact, did impose a punitive fine under U.S.S.G. 5E1.2(a). Appellant's claim to
the contrary rests upon page 5 of the Judgment form on which the district court
checked the box preceding the following words: "Fine is waived or is below the
guideline range, because of the defendant's inability to pay." By only focussing
on the "inability to pay" language for the proposition that a punitive fine was
"waived," appellant conveniently ignores what the district court judge said at
the sentencing hearing concerning a fine under 5E1.2(a):
As far as the fine is concerned, it does not appear you have substantial assets.
You have some assets and based on that, the Court will impose a fine in the
amount of one hundred dollars and a special assessment in the amount of fifty
dollars as required by law.
grams of 80% pure cocaine, a pager, a cellular telephone, a shoe box filled with
plastic bags, three sifters, a spoon and a triple-beam scale. The latter three items
were found to have cocaine residue on them; it is undisputed that all of the
seized items were "common" implements of the cocaine trade.
8
As for the cash, DEA agents found $4,450 in the bedroom and $3,990 on a
table in the living room. They also discovered $26,000 hidden beneath a stereo
speaker. Out of the total amount, the government accepted appellant's claim
that $4,450 represented the settlement of an insurance claim. This left the
$29,990 which the Presentence Report (PSI) concluded represented the
proceeds of sales of 1,000 grams of cocaine.
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offense to which he pleaded guilty. Specifically, appellant contends that the PSI
merely concluded that the money represented proceeds from other drug
transactions without presenting any evidence of actual sales or any evidence of
a conspiracy. Instead, appellant asserts, the only concrete evidence was the 17.6
grams found in his apartment. This should have resulted, he goes on, in a
finding that he was involved in only a "very small scale operation." Thus, he
concludes that our decision in United States v. Gerante, 891 F.2d 364 (1st Cir.
1989), does not control and an "approximation" by converting the cash into
1,000 grams of cocaine was not permitted.
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Finally, we reject appellant's argument that the result of the conversion (which
raised his base offense level from 12 to 26) rendered his sentence "grossly
disproportionate" and "inequitable." Similar increases in sentencing ranges due
to the addition of quantities of drugs not included in the offense conduct have
been upheld. See, e.g., United States v. Sklar, 920 F.2d 107, 112-14 (1st Cir.
1990) (despite seizure of only one package containing cocaine, court's addition
for sentencing purposes of estimated quantities of cocaine contained in eleven
previously mailed packages-which essentially doubled guideline range-not
clearly erroneous); United States v. Vazzano, 906 F.2d 879, 884 (2d Cir. 1990)
(addition of extra amount of cocaine defendant told informant he had recently
sold for purposes of calculating base offense level held not clear error; addition
almost tripled guideline range).
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Appellant adds the claim that his trial counsel provided ineffective assistance in
violation of the Sixth Amendment by, among other omissions, failing to object
at the sentencing hearing to the conversion of the $29,990 into 1,000 grams of
cocaine. "We have held with a regularity bordering on the monotonous that
fact-specific claims of ineffective assistance cannot make their debut on direct
review of criminal convictions, but, rather, must originally be presented to, and
acted upon by, the trial court." United States v. Mala, No. 91-2229, slip op. at
9-10 (1st Cir. October 27, 1993). Because this claim may turn on factual
matters outside of the record now before us, the claim is not ripe for appellate
review.
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