*1 injury Accordingly, we fact. reverse
judgmеnt of the district court and remand proceedings not inconsistent with
for further opinion. America, Appellee,
UNITED STATES of Joseph AGUILERA, Appellant.
Daniel
No. 94-2834.
United States Court of
Eighth Circuit.
Submitted Jan. 1995.
Decided Feb. 1995.
Rehearing Suggestion Rehearing
En Banc Denied March 1995. *2 ability pay
fendant did not have the to such a supervised fine in addition to the cost of release and restitution. Id. at 17-18. Aguilera court found that should neverthe- pay supervised less be able to the costs of leaving prison. release after Id. at 18. sentence, Upon pronouncing Aguilera’s coun- fine, of sel asked for reconsideration noting statutory language provides that the supposed it was to an be “additional” fine, arguing Aguilera and also would ability pay not have the to a such a fine. The Omaha, NE, argued, A. Frank of Julie responded: appellant. Well, request is denied. I realize that Semisch, Douglas Atty., Richard Asst. U.S. position you that if some take the don’t NE, Omaha, argued, appellee. fine, impose you impose upon ... can’t supervised the defendant the costs of his LOKEN, Judge, Circuit Before disagree I release. with that view- GODBOLD,* Judge, Senior Circuit $10.00, point- impose sup- I I could ARNOLD, MORRIS SHEPPARD Circuit pose, cash fine or a fine and then $100.00 Judge. effect, that would have the it would seem me, making imposition tо of then the of the ARNOLD, SHEPPARD MORRIS Circuit supervised permissible. cost of the release Judge. satisfy I take it that would those with that pleaded guilty in Aguilera federal Daniel viewpoint, and I don’t think that is what making district court to false statements on a required, the law intended or what it but in violation of application credit 18 U.S.C. perhaps. we will find out imprison- § to 1014. In addition the term of five-year ment of 27 months term of Id. at 19. following supervised release release from Aguilera contends that a district court can Aguilera pay was ordered to
prison, thе costs an assess “additional” fine for costs under supervised of his release and restitution in 5E1.2(i) only § U.S.S.G. it first assesses a $16,667.77. appeals the amount of He now 1.2(c). 5E fine under See United and we affirm.1 from his sentence (1st Pineda, States v. Cir.1992); Fair, United States F.2d
I.
Cir.1992);
United
States
Cir.1990).
Labat,
imposi-
attacks the
Aguilera
district court’s
These cases adhere to the view that
representing
super-
tion
a fine
the costs of
of
5E1.2(i).
language
requires
this result:
vised release under U.S.S.G.
We
application
review the district court’s
of the
Notwithstanding
provisions
of sub-
Wilson,
novо.
Guidelines de
United States v.
(c)
section
of this section
table of
[the
(8th Cir.1994).
F.3d
fines],
subject
minimum and maximum
but
(f)
sentencing,
adopted
At
provisions
the Pre-
to
subsection
herein
(“PSR”),
Report
noting
[giving
sentence
that there
relief if defendant can show that he
objections
fine],
findings.
pay
were no
to its factual
is not able to
the court shall
Tr. at 4. The court considered the defen-
an additional fine amount that is at
ability
to
dant’s
fine and stated that a
least sufficient to
the costs to the
lump
any imprisonment,
cash fine
proba-
sum
under
U.S.S.G.
5E1.2(c)
imposed
tion,
because the
release ordered.
de-
*
GODBOLD,
Cambridge,
The HONORABLEJOHN C.
United
1. The Honorable William G.
United
Nebraska,
Judge
States Senior Circuit
for the Eleventh Cir-
Judge
States District
for the District of
sitting by designation.
cuit Court of
5E1.2(i).
support
The word “additional”
case
because
PSR does not
Guidеline, according
cited imposition
any
in this
to the cases
fine at all. The PSR states
above, requires
that a
fine under
light
of “defendant’s debt and the
1.2(c)
imposed initially.
5E
must have been
extent of
obligation,
his restitution
a fine
appear
extraordinarily
would
be
difficult.”
rеspectfully disagree
We
with the
*3
¶
that, subject
PSR 98. It also notes
to the
reasoning of these cases: As the district
ability
pay,
to
defendant’s
the court shall
noted,
impose
it makes little sense to
a
impose a
pay
finé that is at least sufficient to
1.2(c)
merely
fine
5E
to
token
under
government
the
any supervised
cost to the
impose
representing
to
a fine
the
be able
release,
currently
which
amounts to $180.90
government’s costs. The cases cited above
¶
per month.
Id.
109. The PSR indicates
court,
compel
imposes
if
a
thе
fine of $1
it
Aguilera
previously
that
had
earned as much
5E1.2(c), to add a fine for incarcera
under
¶
per
as
month. PSR 89. While a
$1200
tion, yet
if no
fine is levied the
required
district court is
to
specific
make
pay
cannot be committed to
defendant
findings on the
that
recоrd
it has considered
costs of incarceration. We do not think that
ability
pay,
light
the defendant’s
to
in
Sentencing
possi
Commission could have
capacity,
defendant’s
and the burden that the
bly
such a result.
If
intended
one needs
(Lincoln
States,
places
fine
on him
v. United
argument
support
technical
to
this common
(8th Cir.1993)
132,
curiam);
12 F.3d
(per
133
conclusion,
say
im
sense
one could
that the
Cammisano,
1057,
United States v.
917 F.2d
position of a fine in the amount of zero
(8th Cir.1990);
Walker,
1064
United States v.
required statutory pred
dollars furnishes the
(8th Cir.1990)
1201,
900
(per
F.2d
1206
cu-
compеnsating
for an “additional” fine
icate
riam)), it need not itself set forth a detailed
supervision.
for the costs of
analysis of
Sellers,
116, 119
position,
the defendant’s financial
42
See United States v.
F.3d
(2d
Favorito,
may rely
but
on
Cir.1994);
the information
in
v.
contained
United States
5
(9th
Lincoln,
1338,
Cir.1993),
the PSR. See
12
at
F.3d
1340
cert. de
F.3d
133. As
—nied,
noted,
-,
1374,
specifically
114
we
the district court
U.S.
S.Ct.
128
(1994);
Turner,
PSR,
adopted
in
L.Ed.2d 50
the facts
that
United States
found
—
(7th
534,
Cir.),
denied,
Aguilera
ability
pay
cert.
while
did not have the
to
-,
639,
super-
U.S.
S.Ct.
Aguilerа also maintains that
113 S.Ct.
(1993);
incorrectly applied
Guidelines were
in his
separate weight.
III.
Aguilera’s revealed six convictions for PSR IV. driving vehicle operating a motor while his reasons, foregoing judgment For the the of suspended and one conviсtion for license the court district is affirmed. ¶¶ writing a a bad check. PSR 56-61. De- objects prior that fendant these offenses separately, urges they counted and that
were GODBOLD, Judge, Senior Circuit instead be deemed “related cases.” concurring part dissenting part. in and in require prior
The Guidelines
that
sen
agree
I
parts
opinion
with
II and III of the
in
imposed
unrelated cases be counted
tences
agree
of the court.
I am not able to
with the
prior
and that
in relat
separately,
sentences
conclusion that a district court can assess an
single
be treated as a
sentence.
ed cases
“additional” fine for costs under U.S.S.G.
4A1.2(a)(2).
pro
§
The Guidelines
U.S.S.G.
§
though
punitive
no
fine has been
following definition of
vide the
related cases:
5E1.2(c).
§
assessed under
I would follow
decisions,
mаjority
the
mentioned
the
are not considered relat-
Prior sentences
Tenth,
opinion, of the
they
for
First and Fifth cir
if
were
offenses that were
ed
cuits,
Labat,
(10th
(ie.,
603,
v.
by
intervening
an
U.S.
915 F.2d
607
separated
arrest
Cir.1990),
Pineda,
569,
is
U.S.
981 F.2d
576
defendant
arrested for the first of-
the
(1st Cir.1992),
Fair,
and
prior
committing
the
of-
U.S.
979 F.2d.
fense
second
1037,
Cir.1992)
fense). Otherwise,
(relying
prior
on “the
sentences are
5E1.2(i)),
plain language” of
they
related if
and now the
considered
resulted from
(1)
Circuit,
Norman,
Eleventh
U.S. v.
that
occurred on’ the same
offenses
—
denied,
(2)
Cir.1993),
occasion,
369-70
part
singlе
cert.
were
of a
common
(3)
—,
U.S.
plan,
or
S.Ct.
L.Ed.2d
scheme
were consolidated
(1994), holding
sentencing.
that no cost-fine can be im
for trial or
posed
where there has been no
fine.
comment,
4A1.2,
3. The dis-
.n.
Corral,
(1st
See also U.S. v.
prior
trict
concluded that
the
offenses
Cir.1992) (“If
puni
defendant cannot
a
“although
eases
were not related
because
the
fine,
tive
is no
expecting
there
basis for
that
of
some
eases
which
convictions arose
put
he will be
expenses
able to
for the
of
sentencing
for
purposes,
were consolidated
Imposition
release.
of such a
they
separated by intervening
were
arrests.”
meaningless
sanction would be
and result in
Tr. at 2.
unnecessary record-keeping.”).
In Pineda
Here,
dispute
there is no
issue;
the defendant did not
raise
рaragraphs
through
offenses described in
error,
government suggested the
and the
separate
61 of the PSR involved
arrests.
agreed
suggestion.
with that
Although these matters were consolidated for
sentencing, that
change
upon
fact fails to
the anal
In Labat
thе Tenth Circuit relied
ysis. The
require
ground
simple logic
plain
Guidelines
us to consider
both the
of
and
5E1.2,
they
plus
offenses
reading
language
unrelated
were for of
of the
“additional,”
meaning
plus
fenses that
separated by
intervening
dictionary
were
an
is,
Only otherwise,
exрlanation.
arrest.
if there had
Commission’s own
two-step reading of the would follow what the
Mr. Labat’s
Commission has said
however,
speculating
on rather than
it
guidelines,
pos-
makes sense both
could not
sibly
said, and,-
simple logic
plain reading
have meant what it
grounds of
and a
if we are
'
wrong,
language
straighten
of this section.6 Under
Commission could
it
5E1.2,
imposed
be
unless
out.
must
(f)
(f)
subparagraph
Although
is satisfied.
suggested
It
is
that a
fine of zero
mandatory,
it makes no sense to
is
dollars,
course,
which,
fine,
sup
is not a
punitive fine and
waive the
ports an “additional” fine because additional
’ fine.
‘additional
adding
means
two
together
numbers
fine,7
Indeed, a fine is a
and if a defen-
Turner,
zero is a number. See U.S. v.
one,
—
indigent
purposes
dant is
he
(7th Cir.),
denied,
F.2d 534
cert.
U.S.
indigent
purposes
must be
of the other.
-,
(1993),
114S.Ct.
language of as a
result, misapplied guide- 5E1.2 of the
lines.
Labat,
mendable —sense for the Com- Plaintiff-Appellant, thought mission to have a defendant is indigent pay punitive and unable to fine he Larry NORRIS, Defendant-Appellee. is also unable a cost-fine. The Com- may imposition mission have viewed No. 94-1223. punitive fine as a threshold matter to be consideration, United States Court of given eligibility first with for a Eighth Circuit. operation only have a cost-fine to field passed. when the threshold has been More- Sept. Submitted 1994. over, guess it is not for us to second Decided Feb. 1995. Sentencing Commission and confect what conclusion, judges think is a common sense Rehearing Suggestion Rehearing and may thought the Commission have oth- when April En Banc Denied 1995. appears thought erwise and to have other- irony must wise. One note says its view is the “common sense”
conclusion, thought contrary while Labat “simple logic.” In
view was that situation I onment, ‘existing coming probation, 6. ‘Additional is defined as or relеase or- by way course, added). of addition.’ Webster's Third Interna- (emphasis dered' Of (1981). Dictionary, p. 24 tional guideline imprison- fine and the costs of ment/supervision fine cannot total more than Sentencing 'Questions 7. See The Commission's (See provided by the maximum fine statutе. Frequently Most Asked About The 5E1.2(i).) Guidelines,' Question #24: publication imprisonment supervision We note this contains the disclaim- Is the cost of 'necessarily considered a fine? er that the information does not guidelines provide Answer: Yes. The represent position the offiсial of the Commis- guideline the court shall order a fine within the sion, definitive, should not be considered range fine and the court ‘shall an addi- Commission, binding upon is not the court tional amount that is at least sufficient to parties any or the case.’ any impris- the cost to the