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No. 95-3026

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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. *

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 Submitted: February 13, 1996

 Filed: July 10, 1996

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

___________

LOKEN, Circuit Judge.

Robert E. Hines pleaded guilty to drug and firearm offenses. The

district court sentenced him to ninety months in prison and three years of

supervised release. The court also imposed a fine of approximately

$300,000, based upon the fact that Hines will receive $1,550,000 in

personal injury settlement payments over the next thirty-five years. Hines

appeals this fine. We conclude that, while the fine is not

constitutionally excessive, the district court erred in refusing to

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 in

violation of 26 U.S.C. § 5861(d), possession of cocaine with intent to

distribute in violation of 21 U.S.C. §§ 841(a)(1) and 
 These limitations were repealed by section 207 of the

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Antiterrorism and Effective Death Penalty Act of 1996, for

convictions after the effective date of that Act. See Pub. L. No.

104-132, § 207, 110 Stat. 1214, 1236-39 (1996).

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(b)(1)(C), and use of a firearm in relation to drug trafficking in

violation of 18 U.S.C. § 924(c). On November 27, 1993, two days before his

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, sustaining 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 decrease the deferred payments. It also states: "To the extent

provided by law, the aforesaid deferred lump sum payments shall not be

subject to transfer . . . or encumbrance."

At sentencing, the district court advised that it intended to take

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 five

years, and the government's lien securing the payment of a fine expires in

twenty years (unless Hines agrees to a longer term). See 18 U.S.C.

§§ 3572(d), § 3613(b). Counsel for Hines argued that the court must

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consider 
 The parties estimate these additional costs at about

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$150,000. The court explained its decision by noting that the

settlement provided Hines with income of $40,000 per year for forty

years, and the total fine of some $300,000 is approximately $40,000

for each year of Hines's incarceration.

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the needs of Hines's new wife and stepson. The court responded that

responsibilities Hines took on after the charges were brought "cannot be

of any concern to me." 

The court imposed a fine of $150,000 plus incarceration costs of

$1734 per month. The court made the entire fine payable immediately.

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Thus, the government will be entitled to the full amount of each deferred

settlement payment until the year 2012, some ten years after Hines is

released from prison. On appeal, Hines challenges 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 wife

recently lost her job, his stepson has large medical bills, and the

settlement payments will average only $12,500 per year until 2002. He

further argues that the fine is excessive under the Eighth Amendment -- it

is "ten time greater than the largest fine imposed in the Western District

of Missouri at any time from the commission of his criminal conduct to the

date of sentencing." 

"[T]he Guidelines require that '[t]he court shall impose a fine in

all cases, except where the defendant establishes 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. Aguilera, 48 F.3d 327, 329 (8th Cir.), cert. denied, 116

S. Ct. 117 (1995). The Guidelines further require 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 his

dependents relative to 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. 

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his wife); Mo. Rev. Stat. § 453.400(1) (stepparent must support stepchild

living in the home to the same extent as a natural or adoptive parent).

The Guidelines make no distinction based upon when dependents were

acquired, nor the length of the dependent relationship. The district

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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 cases

discuss the imposition of fines under the Guidelines, or the impact of the

Eighth Amendment prohibition on "excessive fines," we add the following

comments concerning these sentencing issues.

First, we are concerned that the record does not permit a comparison

between the amount of the immediately payable fine and Hines's present

ability to pay a fine. If the fine were deferred in the same manner as the

settlement payments, then we could compare $300,000 to $1,550,000 in

determining Hines's ability to pay and the impact of the fine on his

dependents. But Congress does not allow long-deferred fine obligations,

and it only provides the government a twenty-year lien, so the district

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 fine

under the Guidelines, the court needs to determine the present value of the

deferred payment stream. This is relevant because Hines may be required

to liquidate this right to future income (or any other illiquid asset) to

meet his obligation to pay an appropriate fine. The question is

complicated here by the anti-alienation and anti-encumbrance provisions of

the settlement 
 A defendant may not constitutionally be incarcerated solely

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because he cannot pay a fine through no fault of his own. See

Bearden v. Georgia, 461 U.S. 660, 672-73 (1983); Lincoln v. United

States, 12 F.3d 132, 133 (8th Cir. 1993) (per curiam). 

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agreement. But in exploring the present value of the deferred payments,

the district court may learn that these provisions are not a complete

obstacle to realizing that present value. And of 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 life

of its lien, the court should take that into account in balancing the

competing needs of his dependents, or in fashioning appropriate alternative

sanctions.

Second, we are concerned that the terms of the fine and the

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, with any unpaid balance to be a condition of supervised

release." Violation of a condition of supervised release allows the court

to revoke supervised release and impose further sanctions, including an

additional term in prison. See 18 U.S.C. § 3583(e). Therefore, it is an

abuse of discretion to impose as a condition of supervised release the

immediate payment of a fine if the defendant's ability to pay that fine is

based upon post-supervised release income.4

 

Finally, we reject Hines's contention that the fine imposed violates

the Eighth Amendment command that "[e]xcessive bail shall not be required,

nor excessive fines imposed . . . ." There are few cases interpreting the

Excessive Fines Clause. Supreme Court decisions suggest that the

determination of excessiveness should be based, at least in part, on

whether the fine is disproportionate to the crime. See Alexander v. United

States, 113 S. Ct. 2766, 2775 
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(1993); Harmelin v. Michigan, 501 U.S. 957, 1009 (1991) (White, J.,

dissenting). We require proof of "gross disproportionality," an

excessiveness so great that "the punishment is more criminal than the

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).

The 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 the

disputed asset. In imposing a fine, on the other hand, ability to pay

becomes a critical factor. But the Guidelines mandate that this factor be

considered, see § 5E1.2(d)(2) and (f), and if the sentencing court complies

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 the additional fine for Hines's costs of incarceration

is specifically authorized and clearly proportional 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 the

factors prescribed in § 5E1.2(d) on remand, the fine it imposes will not

be constitutionally excessive.

The judgment of the district court is reversed and the case is

remanded for further proceedings consistent with this opinion.

A true copy.

Attest:

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