Court of Appeals for the First Circuit
Gomez-Pabon v. United States
March 3, 1994 · Docket 93-1910
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Opinion
USCA1 Opinion
____________________ APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO [Hon.Juan M. Perez-Gimenez, U.S. District Judge] ___________________ ____________________ Before Torruella, Boudin and Stahl, Circuit Judges.______________ ____________________ Luis E. Gomez-Pabon on brief pro se.___________________ Guillermo Gil, United States Attorney, Silvia Carreno Coll, ______________ _____________________ Assistant United States Attorney, and Jos A. Quiles-Espinosa, Senior _______________________ Litigation Counsel, on brief for appellee.____________________ ____________________ Per Curiam.Appellant Luis E. Gomez-Pabon appeals __________ from the dismissal of his motion to vacate his sentence filed under 28 U.S.C. 2255.Upon a careful review of the parties' briefs and the record, we affirm the judgment of the district court for essentially the reasons set forth in the Report and Recommendation of the magistrate judge and the Opinion and Order denying appellant's motion to vacate his sentence and conviction.After the report of the magistrate issued, appellant raised an additional question: The stand-committed fine part of his sentence is unconstitutional because appellant lacks the ability to pay the fine.He concludes that the fine should be vacated.In the case of "mixed" sentences combining substantial terms of imprisonment with fines imposed upon prisoners who claim to be impecunious, we will not rule upon the fine's constitutionality "until the prisoner has exhausted available administrative remedies, or has begun, or is on the verge of beginning, serving time in consequence of the fine's nonpayment."United States v. _____________ Levy, 897 F.2d 596, 598 (1st Cir. 1990).____ To the extent appellant believes that he will be forced to stay in prison until the fine is paid, 18 U.S.C. 3569 (Discharge of an indigent prisoner) provides that upon a showing of indigency, he may obtain his discharge even though he has not paid the fine.Because appellant's release is not imminent, and since other legal avenues are available to him, there is no reason to speculate now about the course of future events.See Levy, 897 F.2d at 598 .___ ____ Affirmed. ________ -3-
March 3, 1994
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 93-1910
LUIS E. GOMEZ-PABON,
Plaintiff, Appellant,
v.
UNITED STATES OF AMERICA,
Defendant, Appellee.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. Perez-Gimenez, U.S. District Judge]
___________________
____________________
Before
Torruella, Boudin and Stahl,
Circuit Judges.
______________
____________________
Luis E. Gomez-Pabon on brief pro se.
___________________
Guillermo Gil, United States Attorney, Silvia Carreno Coll,
______________ _____________________
Assistant United States Attorney, and Jos A. Quiles-Espinosa, Senior
_______________________
Litigation Counsel, on brief for appellee.
____________________
____________________
Per Curiam. Appellant Luis E. Gomez-Pabon appeals
__________
from the dismissal of his motion to vacate his sentence filed
under 28 U.S.C. 2255. Upon a careful review of the
parties' briefs and the record, we affirm the judgment of the
district court for essentially the reasons set forth in the
Report and Recommendation of the magistrate judge and the
Opinion and Order denying appellant's motion to vacate his
sentence and conviction.
After the report of the magistrate issued,
appellant raised an additional question: The stand-committed
fine part of his sentence is unconstitutional because
appellant lacks the ability to pay the fine. He concludes
that the fine should be vacated. In the case of "mixed"
sentences combining substantial terms of imprisonment with
fines imposed upon prisoners who claim to be impecunious, we
will not rule upon the fine's constitutionality "until the
prisoner has exhausted available administrative remedies, or
has begun, or is on the verge of beginning, serving time in
consequence of the fine's nonpayment." United States v.
_____________
Levy, 897 F.2d 596, 598 (1st Cir. 1990).
____
To the extent appellant believes that he will be
forced to stay in prison until the fine is paid, 18 U.S.C.
3569 (Discharge of an indigent prisoner) provides that upon a
showing of indigency, he may obtain his discharge even though
he has not paid the fine. Because appellant's release is not
imminent, and since other legal avenues are available to him,
there is no reason to speculate now about the course of
future events. See Levy, 897 F.2d at 598.
___ ____
Affirmed.
________
-3-