Lincoln v. U.S., 93-2089

• Decision Date: 27 January 1994
• Docket Number: No. 93-2089,93-2089
• Citation: 12 F.3d 132
• Parties: Joseph Michael LINCOLN, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 132

12 F.3d 132

Joseph Michael LINCOLN, Appellant, v. UNITED STATES of America, Appellee.

No. 93-2089.

United States Court of Appeals,

Eighth Circuit.

Submitted Dec. 6, 1993.

Decided Dec. 22, 1993.

Rehearing and Suggestion for Rehearing En Banc Denied Jan. 27, 1994.

Asst. U.S. Atty. Andrew M. Luger, for appellee.

Before FAGG, BOWMAN, and LOKEN, Circuit Judges.

PER CURIAM.

After a jury convicted Joseph Michael Lincoln of arson and mail fraud, the district court sentenced Lincoln to consecutive ten-year and twenty-one-month sentences. The district court imposed supervised release, restitution, and special assessments on both counts. The district court also imposed a committed fine of ten thousand dollars on the mail fraud count. See 28 C.F.R. Sec. 2.7(a) (1993) (committed fine requires payment before release from prison). Lincoln appealed, challenging the jury instructions and the district court's imposition of consecutive, rather than concurrent, sentences. We affirmed. United States v. Lincoln, 925 F.2d 255 (8th Cir.), cert. denied, --- U.S. ----, 111 S.Ct. 2838, 115 L.Ed.2d 1006 (1991).

Lincoln then filed this 28 U.S.C. Sec. 2255 motion to modify his sentence, seeking to have his fine vacated. The district court declined to vacate Lincoln's fine. The district court deleted the fine's commitment obligation, however, because Lincoln's sentence for mail fraud was imposed under the Sentencing Guidelines and the Guidelines do not provide for committed fines. Lincoln appeals and we affirm.

Lincoln contends the district court committed error in denying his motion to vacate the fine because "[a]fter [he] was sentenced, his financial situation changed dramatically," and he is unable to pay the fine. Although the Government suggests Congress has provided inmates like Lincoln with a means to challenge their fines under 18 U.S.C. Sec. 3569 (Supp. V 1987) and Lincoln has failed to exhaust this remedy, no useful purpose would be served by considering the Government's suggestion because Sec. 3569 was repealed November 1, 1987, before Lincoln was fined under the Sentencing Guidelines.

Nevertheless, we reject Lincoln's contention. When Lincoln was sentenced, U.S.S.G. Sec. 5E4.2(d)(2) (1988) required the district court to consider Lincoln's ability to pay the amount of the fine. The district court was also required to make specific findings on the record that show it considered Lincoln's ability to pay. United States v. Walker, 900 F.2d 1201, 1205 (8th...