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United States v. Ramon Santano Camacho, 972 F.2d 337, 1st Cir. (1992)
United States v. Ramon Santano Camacho, 972 F.2d 337, 1st Cir. (1992)
2d 337
Appeal from the United States District COurt for the District of Puerto
Rico
Ramon Santana Camacho on brief pro se.
Daniel F. Lopez Romo, United States Attorney, and Edwin O. Vazquez,
Assistant United States Attorney, on brief for appellee.
D. Puerto Rico
AFFIRMED.
Before Breyer, Chief Judge, Selya and Cyr, Circuit Judges.
Per Curiam.
Following his conviction on two counts of 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(repealed as of November 1, 1987).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
Educ. Corp., 953 F.2d 717, 719 n.1 (1st Cir. 1992) (reciting statutory history).
His conviction was affirmed on appeal. United States v. Santana-Camacho, 931
F.2d 966 (1st Cir. 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 consider his "income, earning capacity, and financial resources," as
required by 18 U.S.C. 3622(a)(3).1 In 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.
2
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), cert. denied, 489 U.S. 1089 (1989). The district
court here 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 Corp., 944 F.2d 14, 23 (1st Cir. 1991).
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 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, 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.
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 472, 475 (9th Cir. 1991) (per curiam), or "significant
unexplained expenditures." U.S.S.G. 5E1.2, comment (n.6).
Affirmed.
(7) the need to deprive the defendant of illegally obtained gains from the
offense....