GUSTAVO VASQUEZ, PETITIONER V. UNITED STATES OF AMERICA No. 89-7195 In The Supreme Court Of The United States October Term, 1990 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Second Circuit Brief For The United States In Opposition OPINIONS BELOW The order of the court of appeals (Pet. App. 1a-2a) is not published, but the judgment is noted at 896 F.2d 543 (Table). The memorandum and order of the district court (Pet. App. 1b-4b) is unreported. The order of the court of appeals on petitioner's direct appeal (Pet. App. 1c-3c) is not published, but that judgement is noted at 872 F.2d 1022 (Table). JURISDICTION The judgment of the court of appeals was entered on January 11, 1990. The petition for a writ of certiorari was filed on April 12, 1990 (and is therefore out of time). The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether the fines imposed on petitioner violated the Excessive Fines Clause of the Eighth Amendment. STATEMENT 1. Petitioner was a participant in a large-scale conspiracy to distribute cocaine and launder the proceeds of illegal narcotics sales. His specific role was to facilitate the laundering of proceeds from the sale of cocaine by a Colombian drug cartel to New York area customers. Gov't C.A. Br. 3. On August 22, 1986, Anibal Zapata, a Colombian drug trafficker, contacted an undercover DEA agent in Miami, Florida. Zapata told the agent that an associate, Jose Villegas, was living in New Jersey and was available to launder large amounts of cash from narcotics customers in the New York area for Colombian drug dealers. /1/ The money, Zapata explained, consisted of payments for shipments of cocaine previously imported from Colombia and sold on consignment. Gov't C.A. Br. 3-4. On August 26, 1986, Joan Marin, another undercover DEA agent posing as a money launderer, met with Villegas, who described the money laundering procedures he planned to use. Once he received instructions from the Colombian drug traffickers, he would pick up the cash with a representative of the owner of the money, deliver it to Agent Marin, and count the money in the presence of all parties. The money would then be transmitted to banks in Panama. Gov't C.A. Br. 4. On October 20, 1986, a third undercover DEA agent and Villegas met petitioner at a jewelry shop on Madison Avenue in New York City where petitioner worked. In the basement of the building, petitioner gave the agent and Villegas two boxes containing $200,000 in cash. Petitioner said that he still had to collect another $150,000 to be passed on to Zapata. Petitioner also expressed an interest in laundering some of his own funds through the money laundering service. He remarked that in order to transfer his money from the United States to his native Colombia, he bought $5,000 money orders and sent them to Colombia, where he purchased automobiles and property. The next day, $193,000 of the money petitioner had delivered was transferred by wire from a New York bank to the Panamanian bank Villegas had designated. Gov't C.A. Br. 4-5. On October 28, 1986, an undercover agent and Villegas again met petitioner at the jewelry store. In the basement, petitioner handed the two men approximately $110,000 in cash. Petitioner again remarked that he might want to launder some of his own money, but that he wanted to transfer it to Colombia rather than Panama. Afterwards, $106,130 of the money delivered by petitioner was transferred by wire from a New York bank to a Panamanian bank pursuant to Villegas's instructions. On May 6, 1987, petitioner was arrested on a federal narcotics complaint. Gov't C.A. Br. 5. 2. Petitioner pleaded guilty in the United States District Court for the Southern District of New York to charges of drug conspiracy (21 U.S.C. 846) and money laundering (18 U.S.C. 1956(a)(1) and (2)). Pursuant to Fed. R. Crim. P. 11, the district court advised petitioner that the maximum fine that could be imposed on him on Count 1 was $4 million and on Count 2 was the greater of $500,000 or twice the value of the property involved. When the district court explored the factual basis of the plea, petitioner denied involvement in face-to-face narcotics transactions, but grudgingly admitted his knowledge that the large amounts of money he delivered to the undercover agents were the proceeds of narcotics transactions. Concluding that petitioner understood both the charges against him and the punishment he could receive, the district court accepted the guilty plea. Gov't C.A. Br. 5-6. At sentencing, the district court accepted petitioner's assertion that the presentence report had overstated his assets and indicated that it had read the large number of letters submitted on petitioner's behalf by his family and friends. The court also heard from petitioner and listened to a lengthy presentation by petitioner's counsel regarding mitigating factors allegedly present in the case. /2/ Before imposing sentence, the court explained that it was required to consider petitioner's background and experiences, but was also cognizant that Congress had established stringent penalties for drug crimes. Noting petitioner's failure to acknowledge the serious consequences of his conduct and the need to deter others from similar illegal conduct, the court sentenced petitioner to concurrent ten-year terms of imprisonment on each count, a fine of $250,000 on Count 1, and a fine of $606,000 on Count 2. Gov't C.A. Br. 6-8. Petitioner appealed. During the pendency of his appeal, all parties agreed that the fine imposed by the district court on Count 2 exceeded the statutory maximum. /3/ Accordingly, on the government's motion, the court of appeals remanded the case to the district court. Pet. App. 1c. At a second sentencing hearing on August 25, 1988, after petitioner argued that he was unable to pay either the fine on Count 1 or any fine imposed on Count 2 (see Pet. 7), the district court imposed a reduced fine on Count 2 of $212,260. Gov't C.A. Br. 8-9. 3. The court of appeals affirmed. Pet. App. 1c-3c. Petitioner argued that the district court had abused its discretion by basing the sentence on principles of general deterrence; he also argued that the total fine of $462,260 violated the Eighth Amendment's prohibition of excessive fines. /4/ The court of appeals, after observing that general deterrence has traditionally been an acceptable purpose of punishment, found that petitioner's sentence was within the statutory limits and that the district court had considered, although it had not discussed, the individualized factors set forth in former 18 U.S.C. 3622 (1982 & Supp. III 1985). /5/ The court accordingly concluded that the district court had not abused its discretion when it sentenced petitioner. Pet. App. 2c. The court of appeals further concluded that "under the circumstances of this case, the fines imposed were (n)ot excessive under the Eighth Amendment." Id. at 3c. 4. On June 15, 1989, in a motion for reduction of sentence pursuant to Fed. R. Crim. P. 35(b), /6/ petitioner renewed his contention that his fines were beyond his ability to pay and violated the Excessive Fines Clause of the Eighth Amendment. The district court noted that the total fine was well below the statutory maximum, that petitioner's contention was unsupported by legal authority, and that the court of appeals had already rejected the same argument on direct appeal. The court concluded that petitioner's contention was without merit, and denied the motion. Pet. App. 3b-4b. /7/ 5. Once again, the court of appeals affirmed. Pet. App. 1a-2a. Finding that petitioner's Eighth Amendment claims were "largely identical" to the claims already rejected on direct appeal, and that petitioner could "raise a constitutional objection to the fines on the basis of indigence if and when the government takes steps to collect those fines" (id. at 2a), the court concluded that the fines did not violate the Eighth Amendment and "it was not an abuse of discretion to decline to reduce them." Ibid. /8/ ARGUMENT Petitioner contends that because he is indigent, his total fine of $462,260 violates the Excessive Fines Clause of the Eighth Amendment. The court of appeals correctly rejected that contention, and its holding does not present any issue warranting review by this Court. 1. The Eighth Amendment provides that "(e)xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." These three "parallel limitations," Ingraham v. Wright, 430 U.S. 651, 664 (1977), reflect a principle, "deeply rooted and frequently repeated in common-law jurisprudence," that "a punishment should be proportionate to the crime." Solem v. Helm, 463 U.S. 277, 284 (1983). Consequently, the Court has held "as a matter of principle that a criminal sentence must be proportionate to the crime for which the defendant has been convicted." Id. at 290. Petitioner does not claim that the fines imposed on him were "excessive" in relation to the crimes of which he was convicted. Pet. 15 n.12. Rather, he claims that regardless of the seriousness of his offenses and the proportionality of his fine to other sentencing considerations (such as general deterrence), his indigence alone prohibits the imposition of a substantial fine on him. This Court has never embraced such a view of the Excessive Fines Clause. It is, of course, well established that due process and equal protection principles forbid the imprisonment of an indigent defendant solely because of his bona fide inability to pay a criminal fine. Bearden v. Georgia, 461 U.S. 660, 664 (1983); see Tate v. Short, 401 U.S. 395 (1971); Williams v. Illinois, 399 U.S. 235 (1970). But that principle is not at issue here, since petitioner is not threatened with imprisonment because of his current or future inability to pay the fine assessed by the district court. The district court imposed a term of imprisonment for independent sentencing reasons, and did not suggest that petitioner was to be imprisoned because he lacked the wherewithal to pay a substantial fine. The Constitution does not prohibit the imposition of financial punishments on an indigent, like petitioner, who may eventually acquire financial resources. See Fuller v. Oregon, 417 U.S. 90 (1974) (permitting a State to impose an obligation on an indigent defendant, who is convicted, to repay the costs of appointed counsel). Nor has the Court ever suggested that indigence is a restraining factor in imposing a legislatively authorized fine. "A defendant's poverty in no way immunizes him from punishment(,)" and a court is not precluded "'from imposing on an indigent, as on any defendant, the maximum penalty prescribed by law.'" Bearden, 461 U.S. at 669-670, quoting Williams v. Illinois, 399 U.S. at 243. In light of those principles, the court of appeals correctly ruled that petitioner's total fine was not excessive under the Eighth Amendment. The fine of $462,260 is substantially below the $4.5 million total fine authorized by Congress for the two counts to which petitioner pleaded guilty. It is also less than one-half the fine imposed on Villegas, petitioner's associate in moneylaundering. Moreover, although petitioner was not a major drug trafficker, on more than one occasion he played an important role in laundering the cash proceeds of a major Colombian drug cartel and never fully acknowledged the seriousness of his conduct. Petitioner has cited no case -- nor are we aware of any -- where a fine has been found excessive under the Eighth Amendment. /9/ It would be particularly inappropriate to reach such a conclusion here, where the fine amounts to approximately one-ninth of the maximum fine authorized by law. In these circumstances, the court of appeals properly concluded that the district court's exercise of its broad sentencing discretion did not violate the Eighth Amendment. Cf. Solem v. Helm, 463 U.S. at 290 (recognizing that "(r)eviewing courts * * * should grant substantial deference to the broad authority that legislatures necessarily possess in determining the types and limits of punishments for crimes, as well as to the discretion that trial courts possess in sentencing convicted criminals"). Petitioner's review of English constitutional history (Pet. 13-16) does not support his claim that his indigence serves as an independent limitation on the fine that may be constitutionally imposed at the time of sentencing. Petitioner relies largely on limitations that are said to apply to the collection of "amercements" under English law. As this Court recognized in Browning-Ferris Industries, Inc. v. Kelco Disposal, Inc., 109 S. Ct. 2909, 2916-2919 (1989), however, the nature of amercements differs significantly from the fines levied as punitive sanctions under criminal law. Amercements were "an 'all-purpose' royal penalty" imposed in 13th century England for acts ranging from minor criminal offenses to civil wrongs against the King. Id. at 2917. Amercements, for example, were extracted from both parties in lawsuits and applied to a wide variety of conduct. Id. at 2917 n.11. Their use was so widespread that, according to one commentator, most Englishmen could expect to be amerced at least once a year. Id. at 2917. Historical sources indicate that amercements were used by the King to raise revenue and to serve as weapons against his enemies. Id. at 2918. See also id. at 2927 (O'Connor, J., concurring in part and dissenting in part) (Blackstone thought that amercements were civil punishments; amercements were most commonly used as civil sanctions for wrongfully bringing or defending a civil lawsuit). Given the different, and diverse, legal functions that amercements played under English law, it is not possible to transpose all of the ancient doctrines applied to them to the criminal fines at issue here. For example, although the potential impact on a person's economic livelihood may be of particular significance in assessing a payment designed to raise revenue, the same consideration is not applicable to a penalty imposed solely to deter and punish a serious criminal offense. Consequently, here, as in Browning-Ferris, the legal traditions pertinent to amercements are of limited utility in construing the Eighth Amendment. 2. Quite apart from the lack of merit in petitioner's constitutional claim, this Court's consideration of it would be premature. Under Second Circuit precedent, petitioner may advance his constitutional claim when and if the government seeks to collect the total fine he was sentenced to pay. Consequently, petitioner's Eighth Amendment objections based on his indigence are preserved for future consideration at such time as the government makes efforts to enforce payment. The Second Circuit has indicated that it is "at the point of enforced collection of the principal or additional amounts, where an indigent may be faced with the alternatives of payment or imprisonment, that (a defendant) may assert a constitutional objection on the ground of his indigency." United States v. Hutchings, 757 F.2d 11, 14-15 (2d Cir.) (costs of prosecution imposed on indigent defendant), cert. denied, 472 U.S. 1031 (1985). The court has applied that principle to a variety of monetary exactions included in criminal sentences. See United States v. Torres, 901 F.2d 205, 247 (2d Cir. 1990) (constitutional objection, on grounds of indigence, to $2,000,000 fine not ripe until government seeks to enforce the order); United States v. Pagan, 785 F.2d 378, 381 (2d Cir.) (constitutional issues not ripe until government attempts to collect special assessment from indigent defendant), cert. denied, 476 U.S. 1017 (1986); United States v. Atkinson, 788 F.2d 900, 904 (2d Cir. 1986) (same with respect to restitution imposed on indigent defendant). The court's rule adequately protects the defendant's concrete interests in being free from the exaction of potentially excessive fines, while ensuring that district courts are not launched on a constitutionally standardless inquiry at the time of sentencing with the aim of calibrating a fine to a defendant's present or projected wealth or poverty. /10/ The Second Circuit's rule is consistent with 18 U.S.C. 3569 (1982). That statute has been repealed, but it applies to offenses such as petitioner's, which were committed prior to November 1, 1987. The statute provides that if a federal prisoner is confined solely for the nonpayment of a fine, and he is indigent or otherwise unable to pay the fine, he can obtain his release from a magistrate upon a finding that the prisoner does not have the ability to pay the entire amount of the fine. That statute ensures that a person in petitioner's position can avoid being held beyond the period of his custodial sentence because of his lack of financial resources. In this case, of course, the government has not taken steps to collect the fines imposed on petitioner. As a result, petitioner's claims regarding the consequences of an attempt to collect the fine or penalize petitioner for nonpayment (see, e.g., Pet. 19), are not ripe for review, and will not be ripe for review until the government tries to collect the fines or impose other penalties on petitioner when he is unable to pay. /11/ 3. Finally, we note that the constitutional concerns raised by petitioner arise under sentencing provisions that were repealed by the Sentencing Reform Act of 1984. Current federal sentencing provisions require, much more explicitly than former provisions, consideration of a defendant's means and his likely ability to pay a fine before it is imposed. Under the fining provision applied to petitioner, the sentencing court was required to consider "the defendant's income, earning capacity, and financial resources" and the "burden" imposed on the defendant and his dependents as two of nine specified factors, in addition to other relevant factors. 18 U.S.C. 3622(3) and (4) (1982 & Supp. III 1985). The statute, however, did not provide specific guidance regarding the consequences or degree of importance to be attached to a defendant's economic situation. Under the Sentencing Guidelines mandated by the Sentencing Reform Act of 1984, the discretion of district courts in imposing fines is more precisely limited with respect to fines that a defendant might not be able to pay. The Guidelines define a minimum and maximum fine range that is ordinarily based on the defendant's offense level. Sentencing Guideline Section 5E1.2(b) and (c). The Guidelines also state that "(i)n determining the amount of the fine, the court shall consider * * * (2) the ability of the defendant to pay the fine (including the ability to pay over a period of time) in light of his earning capacity and financial resources." Guideline Section 5E1.2(d)(2). In addition, the Guidelines contemplate situations in which the defendant's payment is not reasonably possible: 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. In these circumstances, the court shall consider alternative sanctions in lieu of all or a portion of the fine, and must still impose a total combined sanction that is punitive. * * * Guideline Section 5E1.2(f). Hence, the Sentencing Guidelines require a district court to consider the defendant's financial capacity to pay a fine prior to its imposition. The failure to satisfy this requirement may result in reversal of a fine. See United States v. Walker, 900 F.2d 1201, 1205-1207 (8th Cir. 1990) (per curiam) (vacating a fine, without reaching the defendant's Eighth Amendment objection, because the district court failed to consider the defendant's financial condition; "it is an incorrect application of the guidelines to impose a fine that a defendant has little chance of paying"); United States v. Seminole, 882 F.2d 441, 443 (9th Cir. 1989) (vacating a fine where the record did not establish whether the defendant had the ability to pay it upon his release from prison); cf. United States v. Perez, 871 F.2d 45 (6th Cir.), cert. denied, 109 S. Ct. 576 (1989). As a result, the constitutional issue raised by petitioner, which has not generated a significant body of case law under former sentencing provisions, is likely be encountered even more rarely (if at all) under the current federal sentencing regime. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General EDWARD S.G. DENNIS, JR. Assistant Attorney General THOMAS M. GANNON Attorney JULY 1990 /1/ Villegas was later convicted of narcotics conspiracy and money laundering offenses, and was sentenced to 20 years' imprisonment and a $1.1 million fine. Gov't C.A. Br. 4 n.*. /2/ Petitioner's counsel contended, inter alia, that the designers of the money laundering scheme had kept petitioner so isolated from other participants in the scheme that it was impossible for him to provide substantial assistance to the government. Gov't C.A. Br. 7 n.*. During his presentation, counsel acknowledged that the offenses for which petitioner was convicted had occurred during petitioner's second illegal stay in the United States. Id. at 7. /3/ In its calculation of the money involved in the money laundering offense, the district court had erroneously included the $193,000 transferred to Panama by wire on October 21, 1986. That sum, however, was transferred before the money-laundering statute became effective and was not the basis for the charge in Count 2. See Gov't C.A. Br. 8 n.**. /4/ Specifically, petitioner argued that the fines were unconstitutional because they were disproportionate to the gravity of his offenses and to his ability to pay. Pet. 8-9 & n.7. Petitioner no longer contends that his fines are disproportionate to the gravity of his offenses. Ibid. /5/ These factors included the nature and circumstances of the offense, the history and characteristics of the defendant, and the defendant's income, earning capacity, and financial resources. See 18 U.S.C. 3622(a) (1982 & Supp. III 1985). That statute was repealed by the Sentencing Reform Act of 1984, Pub. L. No. 98-473, Section 212(a)(2), 98 Stat. 1987, which requires the application of the Sentencing Guidelines to offenses committed after its effective date. Petitioner was not sentenced pursuant to the Guidelines because his offenses were committed prior to November 1, 1987, the effective date of the Act. /6/ In pertinent part, former Rule 35(b) provided: Reduction of Sentence. A motion to reduce a sentence may be made * * * within 120 days after receipt by the court of a mandate issued upon affirmance of the judgment or dismissal of the appeal. The rule was amended by the Sentencing Reform Act of 1984, Pub. L. No. 98-473, Section 215(b), 98 Stat. 2015, effective November 1, 1987. /7/ Petitioner presented six additional grounds in support of his Rule 35 motion. Pet. App. 2b. The district court considered and rejected all of them. Id. at 2b-3b. /8/ The court also rejected petitioner's other arguments in support of his Rule 35 motion. Pet. App. 2a. Petitioner does not present those claims for review here. /9/ In United States v. Busher, 817 F.2d 1409, 1415 (9th Cir. 1987), the court of appeals remanded a conviction under the RICO statute for the district court to consider whether the forfeiture imposed there would be "grossly disproportionate to the offense committed." In a footnote, the court of appeals observed that the district court "may" consider the impact of the forfeiture on the defendant's "economic viability," noting that one commentator had suggested that such a limitation is found in Anglo-American legal traditions. Id. at 1416 n.12 (citing Jeffries, A Comment on the Constitutionality of Punitive Damages, 72 Va. L. Rev. 139, 154 (1986)). But the court of appeals did not hold that a defendant's wealth or poverty was a required consideration, nor did the court strike down the forfeiture before it. /10/ Other courts have rejected Eighth Amendment attacks on fines without referring to the appropriate time for considering such challenges. For example, in United States v. Elkins, 885 F.2d 775, 789 (11th Cir. 1989), the court rejected a claim on direct appeal that a fine of $6.6 million, which was less than the defendant's net profit on his illegal transactions, violated the Eighth Amendment, "absent a showing of severe, particularized hardship suffered by the defendant." The substantive standard applied in Elkins, however, is consistent with the procedural rule applied in the Second Circuit, because it would be difficult, if not impossible, for a defendant to establish hardship from a fine before the government attempts to collect it. /11/ Petitioner's challenge may never ripen. As an illegal alien, he will be subject to immediate deportation when he completes his jail term. It is likely that he will be deported before the government undertakes to collect his fines. See Gov't C.A. Br. 19 n.*.