United States v. Prezioso, 1st Cir. (1993)

USCA1 Opinion
March 30, 1993
UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________
No. 92-1898
UNITED STATES OF AMERICA,
Appellee,
v.
GABRIEL PREZIOSO,
Defendant, Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Francis J. Boyle, U.S. District Judge]
___________________
____________________
Before
Torruella, Circuit Judge,
_____________
Campbell, Senior Circuit Judge,
____________________
and Stahl, Circuit Judge.
_____________
_____________________
John F. Cicilline for appellant.

_________________
Margaret E. Curran, Assistant United
States Attorney,
____________________
Lincoln C. Almond, United States Attorney, and Lawrence D.
__________________
____________
Gaynor, Assistant United States Attorney, were on brief for
______
appellee.
____________________
March 30, 1993
____________________
TORRUELLA, Circuit Judge.

______________
the calculation
This appeal arises
of appellant's sentence under
the United States
Sentencing Guidelines ("U.S.S.G.").
Appellant
district
his sentence
court erred
in enhancing
4A1.1(d) based on an outstanding
out of
contends that the
under U.S.S.G.
fine for a previous
offense.
Because we agree with the district court that the enhancement was
warranted in this case, we affirm.
THE FACTS
THE FACTS
_________
Appellant
pled
guilty
to unlawful
possession
of
firearm
by a
convicted
922(g)(1).
The
felon
police
in
found
violation
the
of
firearm
18
while
appellant's home for evidence of illegal gambling.

several
the
prior felony convictions for
search, appellant still
U.S.C.
gambling.
Appellant had
At
owed a $5000 fine
searching
the time of
for one of these
convictions.
The presentence
the
base
offense level
acceptance
of
to
history.
but
The
conviction set
subtracted two
report
First,
then
levels for
made
two
the report added
two
for appellant's prior state gambling convictions pursuant
U.S.S.G.
pursuant to
criminal
at 12,
responsibility.
adjustments for criminal

levels
report for the present
4A1.1.
U.S.S.G.
justice
conviction when
Second,
the
4A1.1 because
sentence,
he committed
the
report
added two
appellant
unpaid
the present
fine,
offense.
levels
was
under
for
a
These
prior
two
adjustments placed appellant at criminal history level III, which
together with the base offense level of 10, yielded an applicable

-2-
range of 10-16 months.
Between the time of offense and the time of sentencing,
the base offense level for the felon in

two
levels.
In such
a situation,
sentencing guidelines
than
the
applicable
sentencing, in order
of the
relied
on
it is
proper to
applicable at the time
normally
Clause
possession crime rose by
to avoid
the guidelines
of offense, rather
guidelines
at
the
violations of the
Constitution.
Id.
___
as
1B1.11.
they stood
apply the
at
time
of
Ex Post Facto
______________
The report
the
time of
thus
the
offense, not at the time of sentencing.

Appellant
objected
history on two grounds.

was
to
the
First, he
calculation
of
criminal
argued that the unpaid
fine
not a criminal justice sentence for the purposes of U.S.S.G.
4A1.1(d).
Appellant
relied on an amendment to
the commentary
that became effective in November 1991 as support; he argued that

this
amendment
contended
Clause,
that
should
have
retroactive effect.
the calculation
in that treating a
violated
fine as a
the
Second,
Equal Protection
criminal justice sentence
disfavors indigent defendants who cannot pay fines quickly.

district court
judge disagreed
appellant to 13 months
of supervised release.
he
on each argument,
and sentenced
imprisonment, a $5,000 fine, and

Appellant revives
The
2 years
his objection to
the
criminal history calculation in this appeal.

LEGAL ANALYSIS
LEGAL ANALYSIS
______________
In 1990, we decided United States
_____________
482
(1st Cir.
1990).
There
we
held
v. Gallego, 905 F.2d

_______
that
"the
sentencing
-3-
guidelines are perfectly clear that a fine is a 'criminal justice

sentence'"
and
enhancement.
therefore
Id.
___
triggers
at 483.
In
the
U.S.S.G.
November,
1991, a
4A1.1(d)
so-called
clarifying amendment to the application notes to that section was

added, stating that "a sentence to
pay a fine, by itself," would
not trigger the enhancement.
We must determine whether, in light
of our circuit
the contrary, we
1991
precedent to
amendment
retroactively
to
the
should apply
1990
version
of
the
the
guidelines in this case.

At
the
outset,
amendments retroactively
not if they substantively
States, 980 F.2d 60,
______
we
only if
note
that
we
normally
they clarify a
change a guideline.
62 (1st Cir. 1992).
The
apply
guideline, but
Isabel
______
v. United
______
first step in our
analysis, then, is to determine whether the amendment constitutes

a clarification or a substantive change.
that
these categories were unclear,
We recognized in Isabel
______
id., and as
___
case, there are factors supporting either side.
is usually the
On
Commission
the
one
labeled
hand,
the
the
amendment
United
as a
States
Sentencing
clarification
meaning of a criminal justice sentence.
U.S.S.G. App. C
208.
Because
not say
fines
were
the 1990
or
were
guideline did
not
characterization does
criminal
justice
not contravene
of
the
at 206,
explicitly that
sentences,
any specific
this
provision of
the guidelines themselves.

On the other
favor of
hand, our
characterizing the
holding in
amendment as a
Gallego weighs
_______
in
substantive change.
-4-
Given
that
interpreted
that
is
holding,
by the
the
change,
characterization.
353 (1st Cir.)
could not change
alters
First Circuit.
inconsistent
substantive
amendment
with
the
Furthermore,
clear
regardless of
United States v.
_____________
the
we held
it to
guideline
results
in
Sentencing Commission's
351,
. . the Commission
retroactively by
be "perfectly
as
any amendment
Ruiz Batista, 956 F.2d

____________
word, clarification"), cert. denied,

____________
Gallego
meaning
("if there was no ambiguity .

[the] meaning
the
using a
113 S. Ct. 105 (1992).

clear" that
a fine
magic
In
is a
_______
criminal justice sentence,
4A1.1.
as that
The contrary amendment
term is used
in U.S.S.G.
therefore would seem to represent
a substantive change, rather than a clarification.

Given
our
amendment
was
presented
a change
guideline.
As
not
holding
a
in
Gallego,
_______
clarification.
in the
we
rule
Rather,
meaning of
a clear
the
the
amendment
and unambiguous
the amendment was not a clarification,
entitled to retroactive effect.
that
it is not
Accordingly, the district court
did not err in sentencing appellant.1

We
Appellant
paying his
schedule.
turn
now
to
appellant's
insists that
he
is being
fine incrementally
According to
constitutional
penalized
according to a
claims.
because he
was
state established
appellant, the Fourteenth Amendment does
not permit criminal penalties due
to a defendant's inability
to
pay a fine.
____________________
1 We will, of course, apply the commentary in future
involving retroactivity.
-5-
cases not
We disagree with appellant's analysis.

penalized
for nonpayment
penalized
because
therefore
appellant
sentence.
We have rejected similar claims on these very grounds.
Gallego,
_______
that fine
is
See
___
still
Rather,
yet
between
constitutional
purposes).
is
being
payable, and
criminal
justice
Furthermore, appellant is not an

entitled to
Georgia, 461
_______
(distinguishing
he
due and
subject to
is not
Bearden v.
_______
fine.
is not
905 F.2d at 483 n.2.
indigent, and therefore

claims.
of
He is not being
indigents
the protections
U.S. 660,
and
Appellant's
he
664-69 (1983)
nonindigents
sentence
for
invokes
no
constitutional concerns.
We
regarding
prerogative
cannot conclude
what
we
by
the
perceive
suggestion
to
Sentencing
significant alterations to
by
without
that
be
a respectful
a
too
Commission,
observation
often
that
exercised
of
making
the guidelines commentary accompanied
the
alteration
is
"clarification."
Considering the thin line separating substance from clarification
in this neural area of the law, we believe judicious restraint by

the Commission
would not
only avoid unnecessary
litigation and
the possible violation of constitutional rights, but would add to

the credibility of its action.
The sentence is affirmed.
________
-6-

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USCA1 Opinion

March 30, 1993

UNITED STATES COURT OF APPEALS

John F. Cicilline for appellant.

TORRUELLA, Circuit Judge.

This appeal arises

of appellant's sentence under

the United States

Sentencing Guidelines ("U.S.S.G.").

4A1.1(d) based on an outstanding

contends that the

fine for a previous

appellant's home for evidence of illegal gambling.

prior felony convictions for

search, appellant still

owed a $5000 fine

for one of these

the report added

for appellant's prior state gambling convictions pursuant

adjustments for criminal

report for the present

adjustments placed appellant at criminal history level III, which

together with the base offense level of 10, yielded an applicable

range of 10-16 months.

Between the time of offense and the time of sentencing,

the base offense level for the felon in

applicable at the time

possession crime rose by

offense, not at the time of sentencing.

history on two grounds.

argued that the unpaid

not a criminal justice sentence for the purposes of U.S.S.G.

that became effective in November 1991 as support; he argued that

criminal justice sentence

disfavors indigent defendants who cannot pay fines quickly.

imprisonment, a $5,000 fine, and

criminal history calculation in this appeal.

v. Gallego, 905 F.2d

guidelines are perfectly clear that a fine is a 'criminal justice

clarifying amendment to the application notes to that section was

pay a fine, by itself," would

not trigger the enhancement.

We must determine whether, in light

guidelines in this case.

62 (1st Cir. 1992).

first step in our

analysis, then, is to determine whether the amendment constitutes

these categories were unclear,

case, there are factors supporting either side.

meaning of a criminal justice sentence.

the guidelines themselves.

Ruiz Batista, 956 F.2d

word, clarification"), cert. denied,

("if there was no ambiguity .

113 S. Ct. 105 (1992).

The contrary amendment

therefore would seem to represent

a substantive change, rather than a clarification.

the amendment was not a clarification,