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

USCA1 Opinion
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________
No. 92-2406
EFRIAM NATANEL,
Petitioner, Appellant,
v.
UNITED STATES OF AMERICA,
Respondent, Appellee.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Edward F. Harrington, U.S. District Judge]
___________________
____________________
Before
Breyer, Chief Judge,
___________
Torruella and Cyr, Circuit Judges.
______________
____________________
Efriam Natanel on brief pro se.
______________
A. John Pappalardo, United States
Attorney,
and
Stephen
____________________
________
Heymann, Assistant United States Attorney, on brief for appellee.
_______
____________________
May 14, 1993
____________________
Per Curiam.
___________
Petitioner Efriam Natanel was convicted in
1989 on a single count of distributing more than 500 grams of

cocaine, in
given a
six-year term of
four-year
pay a
appeal.
violation of 21
U.S.C.
United States
_____________
pursuit
release, and was
This court affirmed his

v. Natanel, 938
_______
1991), cert. denied, 112 S.

_____________
unsuccessful
He was
imprisonment, to be followed
period of supervised
$20,000 fine.
841(b)(1)(B).
of motions
for
ordered to
conviction on
F.2d 302
Ct. 986 (1992).

a new
by a
(1st Cir.
Following his
trial
and for
reduction of sentence, petitioner filed a pro se motion under
28 U.S.C.
2255 to vacate the $20,000 fine, alleging that it
had been imposed in violation of the governing statute.

the
district court's denial
appeals.1
petitioner now
We affirm.
As the
crime
imposed the fine

statute.
of this motion,
From
here
occurred in
pursuant to
See 18
___
U.S.C.
May
1987,
the applicable
3622(a).
This
the
court
pre-Guidelines
provision listed
various factors that the sentencing court "shall consider" in

deciding
whether to impose
including "the
financial
defendant's
resources"
and
a fine and
income,
the amount thereof--
earning
"the burden
that
capacity,
the
and
fine will
____________________
1. Due to the sentencing judge's intervening retirement, a
different district court judge handled the
2255 petition.
-2-
impose
upon the
defendant."2
sentencing court failed
Petitioner
argues that
to explain its reasons,
the
pursuant to
these criteria,
for imposing the
court specifically
And
he
argues
imposing
to pay it.
fine.
failed to consider
that
the
the fine in the
court
He argues
that the
his financial status.
abused
its discretion
in
face of his demonstrated inability
We find these assertions unpersuasive.3
Contrary to
petitioner's first
has held (in accordance with the
contention, this
court
majority of other circuits)
____________________
2.
Section 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;
....
(7) the need to deprive the defendant of
illegally obtained gains from the offense ....
3. The government argues, and the district court found, that

petitioner waived this issue, having failed both to object
thereto at sentencing and to raise it on direct appeal. See,
___
e.g., United States v. Frady, 456 U.S. 152 (1982) (applying
____ _____________
_____
"cause and prejudice" test to procedural defaults in
2255
context). As we find petitioner's claim to be without merit,
we need not address the question of waiver.
See, e.g.,
___
____
Murchu v. United States, 926 F.2d 50, 53 n.4 (1st Cir.) (per
______
______________
curiam), cert. denied, 112 S. Ct. 99 (1991).
____________
-3-
that
"specific
findings
3622(a)," so long
also United States v.

____ ______________
1993) (adopting same
assertion--that the
status--is equally
presume
Savoie, 985 F.2d

______
rule in Guidelines
court failed
misplaced.
that the
some
length, and
declined
at 719.
861 F.2d
the
(1st Cir.
His
report (PSI)
"[w]e
will not
to consider
the
in the record."
abuse of
information bearing
a record showing the
3622(a) factors."
542, 545
second
his financial
"There is no
court had before it
to consider
v. Weir,
____
case).
to consider
all the relevant factors,... absent
States
______
612, 620
3622(a) evidence contained
discretion when the
court refused
"enables adequate
The presentence
district court
Wilfred American, 953 F.2d

_________________
on
by section
(1st Cir. 1992) (citing cases); see

___
issue at
relevant section
mandated
United States v. Wilfred American Educ.

_____________
_______________________
Corp., 953 F.2d 717, 720

_____
this
not
as the record otherwise
appellate review."
addressed
... are
(9th Cir.
United
______
1988), cert.
_____
denied, 489
______
U.S. 1089
Penagaricano-Soler,
__________________
(1989) (quoted
United States
_____________
v.
911 F.2d 833, 847 n.17 (1st Cir. 1990)).
Moreover, petitioner's attorney

addressing the court
in
raised this very
immediately prior to the
issue when
imposition of
sentence.
In
his
final
argument,
petitioner
suggests
3622(a) requires a court, not only to consider

________
financial
condition, but to ensure
reasonably consistent with
that
a defendant's
that any fine imposed is
his ability to pay.
We need not
-4-
decide
whether
such a
requirement
can
be
read into
the
statute, for (assuming arguendo that

________
it can be) we think the
fine here is
To be sure,
consistent therewith.
appears to lack the present ability to pay $20,000.

reciting
petitioner
The PSI,
financial data submitted by petitioner, lists total
liabilities exceeding $81,000 along
with negligible assets.4
And while the government argues that petitioner retained some
undisclosed
assets (in
the form
of his
share of
the drug
____________________
4. According to the PSI, petitioner's principal liability is
a $49,000 obligation to the state welfare department for past
child support.
He is also described as having over $30,000
in outstanding loans from four family members, apparently to
help pay for legal expenses. (To what extent these loans
covered such reimbursable matters as bail bond is not
indicated.)
-5-
proceeds),5 these
would fall
well short
of overcoming
the
reported deficit in his personal finances.

Nonetheless,
as
3622(a)(3)
to
ability to
pay is
indicated
"earning
years.
He
part of the
He operated
thereafter
the
capacity,"
employment history reflects a

and aptitude.
by
a
defendant's
equation.
his
own business
served as
in
future
And petitioner's
fair degree of
accomplishment
for
motor coach
earning praise as a "valued employee."

served on the
reference
several
operator,
And he simultaneously
executive board of the transit
union, helping
to negotiate labor agreements and "provid[ing] the leadership

and
counsel
unit."
necessary
Given
this
to the
record,
survival
and
of
the bargaining
notwithstanding
several
____________________
5. The government had recommended a fine of $20,000 on the
ground that such figure corresponded to the then-prevailing
price for a kilogram of cocaine (the amount involved in the
sale).
The court agreed that such recommendation was
"proper." Regardless of the share of the proceeds actually
retained by petitioner, such action is consistent with the
"need to deprive the defendant of illegally obtained gains."
18 U.S.C.
3622(a)(7).
Relying on United States v. Wells Metal Finishing, Inc.,
_____________
___________________________
922 F.2d 54, 58 (1st Cir. 1991), the government now contends
that the court's action also constituted an implicit finding
that petitioner had access to undisclosed assets. We need
not decide this matter.
Even if the government were correct
in this regard, but cf. United States v. Rowland, 906 F.2d
_______ _____________
_______
621, 624 (11th Cir. 1990) (finding of undisclosed assets
"must be reasonably supported by probative evidence"), it
would matter little. The government acknowledges that it is
unclear what portion of the proceeds was paid to petitioner.
And given the government's commendably candid portrayal of
petitioner, at sentencing, as "a low-level member of the
distribution chain," it is fair to infer that his share was
less than substantial. Even if he retained access to such

funds, therefore, that fact would make little difference.
-6-
countervailing factors,6 the
district court could reasonably
have believed that petitioner had

able to pay the fine imposed.
F.2d
47,
52
(7th
Cir.
"at least a hope" of being
United States v. Mahoney, 859

______________
_______
1988)
(restitution
order
under
similarly worded statute).

It is also
noteworthy that petitioner was facing a fine
of up to $2,000,000.
size
The imposition of a fine
obviously reflects
status.
See,
___
944 F.2d 14,
an
appreciation
e.g., United States

____ _____________
1/100th that
of his
financial
v. Pilgrim Market Corp.,

_____________________
22-23 (1st Cir. 1991).
More generally,
it is
not disputed that the fine here was fully consistent with the
other
3622(a) factors--particularly
offense"
and
defendant
of illegally obtained
that
(as
the sentencing
mentioned)
court acted
imposing the $20,000 fine.
the
the
"need
gains."
within
"nature of
to
We
deprive
the
the
therefore find
its discretion
in
See, e.g., United States v. Levy,

___ ____ _____________
____
897
F.2d 596,
597, 599
fine imposed pursuant
to
(1st Cir. 1990)

3622(a)
(upholding $15,000
even on assumption
that
defendant was then "penniless").

Affirmed.
________
____________________
6. Petitioner is reported to have left school (in Israel) in
the 7th or 8th grade.
While he speaks English well, he can
read it only "a little." In the aftermath of a work injury,
he suffers from recurring (but non-disabling) back pain which
requires daily medication. And he is now approximately 57
years of age.
-7-

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USCA1 Opinion

[NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS

Petitioner Efriam Natanel was convicted in

1989 on a single count of distributing more than 500 grams of

release, and was

This court affirmed his

1991), cert. denied, 112 S.

Ct. 986 (1992).

reduction of sentence, petitioner filed a pro se motion under

2255 to vacate the $20,000 fine, alleging that it

had been imposed in violation of the governing statute.

district court's denial

imposed the fine

various factors that the sentencing court "shall consider" in

the amount thereof--

sentencing court failed

to explain its reasons,

for imposing the

the fine in the

his financial status.

face of his demonstrated inability

We find these assertions unpersuasive.3

has held (in accordance with the

majority of other circuits)

Section 3622(a) provided in relevant part:

3. The government argues, and the district court found, that

also United States v.

Savoie, 985 F.2d

court had before it

all the relevant factors,... absent

3622(a) evidence contained

discretion when the

Wilfred American, 953 F.2d

(1st Cir. 1992) (citing cases); see

United States v. Wilfred American Educ.

Corp., 953 F.2d 717, 720

as the record otherwise

911 F.2d 833, 847 n.17 (1st Cir. 1990)).

Moreover, petitioner's attorney

raised this very

immediately prior to the

3622(a) requires a court, not only to consider

condition, but to ensure

reasonably consistent with

that any fine imposed is

his ability to pay.

statute, for (assuming arguendo that

it can be) we think the

appears to lack the present ability to pay $20,000.

financial data submitted by petitioner, lists total

liabilities exceeding $81,000 along

with negligible assets.4

And while the government argues that petitioner retained some

reported deficit in his personal finances.

employment history reflects a

earning praise as a "valued employee."

executive board of the transit

to negotiate labor agreements and "provid[ing] the leadership