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

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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.
________

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