David Frank Bagguley, Petitioner-appellant, v. Warden, Usp-leavenworth, Respondent-appellee, 946 F.2d 900 (10th Cir. 1991)

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir.R. 34.1.9. The case is therefore ordered submitted without oral argument.

Petitioner appeals the district court's order denying him leave to proceed in forma pauperis and finding that the appeal in this matter is frivolous. He appeals on the grounds that the district court erred in refusing to waive or defer a $25,000 fine imposed in connection with a ten-year sentence imposed by the District Court for the Southern District of New York. Petitioner alleges that he has completed the ten-year sentence to which the $25,000 fine pertains, and that, under 18 U.S.C. § 3569, his fine should be waived or deferred. Petitioner does not, however, meet the clear statutory requirements of section 3569 which require that a petitioner thereunder be confined to prison "solely for the nonpayment of such fine, or fine and costs." Petitioner in this case is presently serving an aggregate sentence in excess of seventy years and is not confined solely due to the nonpayment of his committed fine. Therefore, he does not satisfy the threshold requirements of section 3569.

Petitioner also alleges that he has a right to be considered for transfer to his country of citizenship under unspecified treaty rights or under the Fifth Amendment to the United States Constitution. These arguments are without merit. To the extent that the arguments relate to transfer pursuant to the provisions of 28 C.F.R. § 527.43, we agree with the district court that this petitioner has not qualified for consideration under that section because he has failed to obtain the permission of the court imposing the fine. We therefore agree with the district court that this appeal is frivolous. The motion to proceed in forma pauperis is DENIED. The mandate shall issue forthwith.