___________ No. 95-3026

___________ United States of America, * * Plaintiff - Appellee, * * Appeal from the United States v. * District Court for the * Western District of Missouri. Robert E. Hines, * * Defendant - Appellant. *

___________ Submitted: February 13, 1996 Filed: July 10, 1996

___________ Before BOWMAN, LOKEN, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

___________ LOKEN, Circuit Judge.

Robert E. Hines pleaded guilty to drug and firearm offenses. Th e district court sentenced him to ninety months in prison and three years of supervised release. The court also imposed a fine of approximatel y $300,000, based upon the fact that Hines will receive $1,550,000 i n personal injury settlement payments over the next thirty-five years. Hine s appea ls this fine. We conclude that, while the fine is no t const itutionally excessive, the district court erred in refusing t o consider "the burden that the fine will impose upon . . . any person who is financially dependent on the defendant," namely, Hines's new wife and stepson. 18 U.S.C. § 3572(a)(2); see U.S.S.G. § 5E1.2(d)(3). Accordingly , we reverse and remand for resentencing.

Hines was charged with possession of an unregistered firearm i n viola tion of 26 U.S.C. § 5861(d), possession of cocaine with intent t o distribute in violation of 21 U.S.C. §§ 841(a)(1) and

### The se limitations were repealed by section 207 of th e 1 

### An titerrorismand Effective Death Penalty Act of 1996, fo r convictions after the effectiv e date of that Act. See Pub. L. No. 104-132, § 207, 110 Stat. 1214, 1236-39 (1996).
-2- (b) (1)(C), and use of a firearm in relation to drug trafficking i n violation of 18 U.S.C. § 924(c). On November 27, 1993, two days before hi s arrest on those charges, Hines married, acquiring a stepson in the process

. He pleaded guilty to all three counts in February 1994 and was sentenced in August 1995.
In 1986, Hines was hit by a truck, s ustaining injuries that left him 23% permanently disabled. He settled his personal injury claim in 1989. At the time of sentencing, the following "Deferred Lump Sum Payments " remained to be paid under this settlement:
February 12, 1997 -- $ 25,000 February 12, 1999 -- $ 25,000 2002 -- $ 50,000 2004 -- $ 50,000 2007 -- $ 50,000 2009 -- $ 50,000 2012 -- $105,000 2014 -- $105,000 2017 -- $105,000 2019 -- $105,000 2022 -- $220,000 2024 -- $220,000 2027 -- $220,000 2029 -- $220,000
The settlement agreement provides that Hines may not accelerate, increase,
or decrea se the deferred payments. It also states: "To the exten t provi ded by law, the aforesaid deferred lump sum payments shall not b e subject to transfer . . . or encumbrance."

At sente ncing, the district court advised that it intended to tak e these future payments into account in imposing an appropriate fine. The government urged that the fine be payable immediately because Hines will not receive the bulk of the settlement proceeds for more than twenty years , but the court may only require installment payments of a fine for fiv e years, and the government's lien securing the pa yment of a fine expires in twenty ye ars (unless Hines agrees to a longer term). See 18 U.S.C

. §§ 3572(d), § 3613(b). Counsel for Hines argued that the court mus t 1 consider

### The parties estimate these additional costs at abou t 2 

### $150,000. The court explained its decision by noting that th e settlement provided Hines with income of $40,000 per year fo r forty years, and the total fine of some $300,000 is approximately $40,000 for each year of Hines's incarceration.
-3- the ne eds of Hines's new wife and stepson. The court responded tha t responsibilities Hines took on after the charges were brought "cannot be of any concern to me."

Th e court imposed a fine of $150,000 plus incarceration costs o f $1734 per month. The court made the entire fine payable immediately

. 2 Thus, the government will be entitled to the full amount of each deferred settlement payment until the year 2012, some ten years after Hines i s released from prison. On appeal, Hines challeng es the amount of the fine, and the fact that its terms of payment leave his wife and stepson with no financial support during his incarceration. He notes that his wif e recently lost her job, his stepson has large medical bills, and th e settl ement payments will average only $12,500 per year until 2002. H e further argues that the fine is excessive under the Eighth Amendment -- it is "ten time greater than the largest fine impos ed in the Western District of Missouri at any time from the commission of h is criminal conduct to the date of sentencing."

"[T]he G uidelines require that '[t]he court shall impose a fine i n all cases, except where the defendant establishe s that he is unable to pay and is not likely to become able to pay any fine.' U.S.S.G. § 5E1.2(a)." United States v. Agui lera , 48 F.3d 327, 329 (8th Cir.), cert. denied , 116 S. Ct. 117 (1995). The Guidelines further requi re that, "[i]n determining the amount of the fine, the court shall consider" a number of factors , including "the burden that the fine places on the defendant and hi s dependents relative t o alternative punishments." U.S.S.G. § 5E1.2(d)(3). Hines has a legal obligation to support his wife and stepson. See Tyron v. Casey , 416 S.W.2d 252, 260 (Mo. App. 1967) (husband must support

### The government makes no showing that Hines married with the 3 

### intent to avoid imposition of a fine.
-4- his wife); Mo. Rev. S tat. § 453.400(1) (stepparent must support stepchild living in the home to the same extent as a natural or adoptive parent)

. The Gu idelines make no distinction based upon when dependents wer e acquired, nor the length of the dependent relationship. The distric t 3 court erred in ignoring this mandatory sentencing factor. See Aguilera , 48 F.3d at 328 (application of the Guidelines is reviewed de novo ); United States v. Bauer , 19 F.3d 409, 412-13 (8th Cir. 1994).
Accordingly, we must remand for resentencing. Because few case s discuss the imposition of fines under the Guidel ines, or the impact of the Eighth Amendment prohibition on "excessive fines," we add the followin g comments concerning these sentencing issues.

First, we are concerned that the rec ord does not permit a comparison between the amount of the immediately payable fine and Hines's presen t ability to pay a fine. If the fine were deferred in the same manner as th e settle ment payments, then we could compare $300,000 to $1,550,000 i n determ ining Hines's ability to pay and the impact of the fine on hi s dependents. But Congress does not allow long-deferred fine obligations, and it only provides the government a twenty-year lien, so the distric t court made the fine payable immediately. Obviously, that term makes the fine, in the short run, greatly exceed Hines's ability to pay.

To determine the appropriate level of a payable immediately fin e under the Guidelines, the court needs to determine the present value of th e deferred payment stream. This is relevant because Hines may be required to liquidate this rig ht to future income (or any other illiquid asset) to
me et his obligation to pay an appropriate fine. The question i s complicated here by the anti-alienation and anti -encumbrance provisions of the settlement

### A defendant may not constitutionally be incarcerated solel y 4 

### because he c annot pay a fine through no fault of his own. Se e Bearden v. Georgia , 461 U.S. 6 60, 672-73 (1983); Lincoln v. United States , 12 F.3d 132, 133 (8th Cir. 1993) (per curiam).
-5- agreement. But in exploring the present value of the deferred payments, the distri ct court may learn that these provisions are not a complet e obstacle to realizing that present value. And o f course, if Hines were to refuse either to take available steps to realize the present value of this asset, or to enter into an agreement with the government extending the lif e of its lien, the court should take that into account in balancing th e competing needs of his dependents, or in fashioning appropriate alternativ e sanctions.

Second, w e are concerned that the terms of the fine and th e conditions of Hines's supervised release have not been properly integrated

. The standard Judgment and Commitment Order used in the Western District of Missouri provides: "Unless otherwise ordered by the court, any financial penalty imposed by this order shall be due and payable during the period of incarceration, wit h any unpaid balance to be a condition of supervised release." Violation of a condition of supervise d release allows the court to rev oke supervised release and impose further sanctions, including a n additional term in pr ison. See 18 U.S.C. § 3583(e). Therefore, it is an abuse of discretion to impose as a condition of supervised release th e immediate payment of a fine if the defendant's a bility to pay that fine is based upon post-supervised release income. 4
Finally, we reject Hines's contentio n that the fine imposed violates the Eighth Amendment command that "[e]xcessive b ail shall not be required, nor excessive fines imposed . . . ." There are few cases interpreting the Excess ive Fines Clause. Supreme Court decisions suggest that th e dete rmination of excessiveness should be based, at least in part, o n whether the fine is disproportionate to the crime. See Alexander v. Unite d States , 113 S. Ct. 2766, 2775

### -6-

(1993); Harmelin v. Michigan , 501 U.S. 957, 1009 (1991) (White, J. , dissen ting). We require proof of "gross disproportionality," a n excessi veness so great that "the punishment is more criminal than th e crime." United States v. Alexander , 32 F.3d 1231, 1235, 1237 (8th Cir

. 1994). See United States v. Bieri , 68 F.3d 232, 236 (8th Cir. 1995), cert
. denied , 116 S. Ct. 1876 (1996).

Th e above cases involved forfeitures, not monetary fines

. Proportionality is likely to be the most important issue in a forfeiture case, since the claimant-defendant is able to pay by forfeiting th e disputed asset. In imposing a fine, on the other hand, ability to pa y becomes a critical factor. But the Guidelines m andate that this factor be considered, see § 5E1.2(d)(2) and (f), and if the sentencing court complie s with these provisions, any constitutional ability-to-pay limitation will necessarily be met. Here, for example, the amount of the fine, $150,000, is well within the statutory maximum of $1 million. See 21 U.S.C

. § 841(b)(1)(C). It is consistent with the Guidelines, see U.S.S.G
. § 5E1.2(c)(4), and th e additional fine for Hines's costs of incarceration is specifically authorized and clearly proportio nal to his crimes. See 18 U.S.C. § 3572(a)(6); U.S.S.G. § 5E1.2(i); United States v. Price , 65 F.3d 903, 908 n.7 (11th Cir. 1995), cert. denied , No. 95-1579, 64 U.S.L.W. 3670 (Jun. 24, 1996). Thus, when the district court properly considers th e factors prescribed in § 5E1.2(d) on remand, the fine it imposes will not be constitutionally excessive.

The j udgment of the district court is reversed and the case i s remanded for further proceedings consistent with this opinion.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.