BARKSDALE, Circuit Judge:
Appellant Gerald Vontsteen was convicted by a jury on twenty-one counts of aiding and abetting mail fraud in violation of 18 U.S.C. §§ 1341 and 1342 and on one count of transporting stolen property in interstate commerce in violation of 18 U.S.C. § 2314.
Vontsteen appealed, arguing, among other issues, that the mailings were not in furtherance of the fraud as required by law. This court agreed and reversed the twenty-one mail fraud counts. United States v. Vontsteen, 872 F.2d 626 (5th Cir.1989) (Vontsteen I). Noting the complexity of the sentencing package, the court remanded for resentencing on the remaining
Vontsteen argues that the district court: (1) violated his due process rights by increasing his sentence on the remaining count following successful appeal on other counts; (2) resentenced on the basis of erroneous information and assumptions; and (3) employed an erroneous calculation by Vontsteen's probation officer relating to his category offense level. We AFFIRM.
Vontsteen was charged in counts 1 through 21, the mail fraud counts, with aiding and abetting in a scheme to defraud seven suppliers, by obtaining approximately $1.2 million in "tubular goods" (pipe), and in count 22 with causing stolen pipe worth $33,828.40 to be transported from Texas to Louisiana.
In Vontsteen I, the district court sentenced Vontsteen as follows: (1) five years in prison on each of counts 1 through 10, to run concurrently; (2) five years each on counts 11 through 20, to run concurrently with each other, but consecutive to the sentence imposed for counts 1 through 10, for a total incarceration of ten years; (3) five years suspended on count 21 for five years probation, with supervision, to commence on completion of parole; (4) and ten years on count 22, to run concurrently with the sentence on count 21, suspended for five years probation, with supervision also to begin on completion of parole.
After reversing the mail fraud convictions (counts 1-21), this court vacated the sentence and remanded for resentencing on count 22. In doing so, the court observed:
Vontsteen I, 872 F.2d at 632 (emphasis added).
On remand, Vontsteen moved for a revised presentence report. He requested that the parole guidelines be recalculated, because count 22 only involved $33,828.40 worth of pipe and the previous calculation was based on 22 counts involving over $1 million. Vontsteen also asserted that the original presentence report contained certain unsubstantiated assumptions that had been challenged at the first sentencing hearing, but had not been ruled on by the court in Vontsteen I. He contended that these unsubstantiated assumptions involved the reversed mail fraud convictions and, therefore, could not be considered.
The district court ordered a revised presentence report reflecting "that the only offense of conviction is interstate transportation of stolen property (count 22)." The probation officer subsequently prepared a revised report.
At the resentencing hearing, Vontsteen objected to the revised report on several grounds, including: the report used a value of $489,000 for the pipe, rather than $33,828.40, and included unsubstantiated assumptions and hearsay. Following a detailed and thorough hearing, the district court overruled these objections, but stated that it would consider them in setting the sentence. The district court then sentenced Vontsteen to ten years, without stating the reasons for the length of sentence.
Our discussion of Vontsteen's claims concerning the presentence report reflects the
Vontsteen argues that the district court resentenced him on the basis of erroneous information and assumptions contained in the presentence report. Due process requires that information relied on in determining an appropriate sentence have "some minimal indicium of reliability" and "bear some rational relationship to the decision to impose a particular sentence." United States v. Fulbright, 804 F.2d 847, 853 (5th Cir.1986). The defendant bears the burden of demonstrating that information the district court relied on in sentencing is "materially untrue." United States v. Flores, 875 F.2d 1110, 1113 (5th Cir.1989). Vontsteen has not satisfied this burden.
Vontsteen objects to two particular references in the presentence report. First, he argues that a reference to his making fraudulent representations about the credit standing and banking references of AMRO (a company through which Vontsteen operated) is incorrect. Vontsteen states that the trial testimony of the government's own witnesses showed that the trade and banking references were verified. The record, however, sufficiently supports that Vontsteen enticed pipe sellers to extend him credit based on misrepresentations of his financial condition. For example, several suppliers testified that Vontsteen tendered to them financial statements which the government later proved were false.
Second, Vontsteen objects to the inclusion of unsupported allegations made by a former employer, including both unauthorized use of the employer's credit and embezzlement. He relies on the probation officer's admission that "[t]here is no proof one way or the other." The government argues that the information could be considered because it was obtained by the probation department and was based on complaints lodged against Vontsteen and Vontsteen's own admissions. The government also notes that trained probation officers employ various investigative procedures for verifying information used in their reports and their reports are generally presumed reliable. See, e.g., Gardner v. Florida, 430 U.S. 349, 359-60, 97 S.Ct. 1197, 1205, 51 L.Ed.2d 393 (1977); Flores, 875 F.2d at 1112-13; United States v. Long, 656 F.2d 1162, 1164 (5th Cir.1981).
In United States v. Garcia, 693 F.2d 412, 416 (5th Cir.1982), this court noted the district court's "wide discretion in the kind and source of information [it] considers in imposing sentence." The district court was entitled to accord some "minimal indicium of reliability" to the information contained in the report. Fulbright, 804 F.2d at 853. See also 18 U.S.C. § 3661; Roussell v. Jeane, 842 F.2d 1512, 1523-24 (5th Cir.1988). Moreover, Vontsteen offered no facts or evidence to prove that the information was inaccurate or unreliable and therefore failed to meet his burden of proof. Flores, 875 F.2d at 1112-13.
Vontsteen also argues that the district court erred in failing to correct the presentence report's computation of parole guidelines; that it should have reflected the diminished values of property after reversal of the mail fraud convictions.
The district court did not err in not requiring revision of the report's calculation of the total theft. See 28 C.F.R. § 2.20, Chapter 13, Subchapter A(2)(a), which notes that "[i]n offenses rated by monetary loss ... the total amount of the property ... involved is used as the basis for the offense severity rating." See also Sheary v. United States Parole Comm'n, 822 F.2d 556, 558-59 (5th Cir.1987) (The court rejected the argument that an offense could only be categorized based on the amount included in the indictment and stated that the parole commission has broad discretion in setting a release time for a prisoner and "may take into account any substantial information available to it in establishing the prisoner's offense severity rating." Id. (quoting 28 C.F.R. § 2.19(c) (1985)).
Moreover, the court may consider virtually any reasonably reliable and relevant evidence, including dismissed counts of an indictment, uncharged allegations of criminal activity, and the facts underlying those counts or allegations, in pursuit of the "fullest information possible concerning the defendant's life and characteristics." Williams v. New York, 337 U.S. 241, 247, 69 S.Ct. 1079, 1083, 93 L.Ed. 1337 (1949) (footnote omitted). See also United States v. Juarez-Ortega, 866 F.2d 747, 748-49 (5th Cir.1989); United States v. Johnson, 823 F.2d 840, 842 (5th Cir.1987).
The complaints concerning the presentence report and the district court's applicable rulings and use of it having been rejected, we turn to the due process/vindictiveness claim. Relying on North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), Vontsteen argues that because there was no "objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original proceeding" (id. at 726, 89 S.Ct. at 2081) that justifies the "severe increase" in the sentence on count 22, the sentence violates due process of law.
Pearce concerned sentences after retrial greater than those imposed at the original trial, where the retrial resulted from the defendant having had the original sentence set aside through collateral attack. Holding that this was violative of due process, the Supreme Court held:
395 U.S. at 725-26, 89 S.Ct. at 2080-81 (emphasis added) (footnote omitted). This per se rule, or presumption of vindictiveness, is a "prophylactic rule [which] prevents actual vindictiveness as well as the appeal-chilling appearance of vindictiveness." United States v. Cataldo, 832 F.2d 869, 874 (5th Cir.1987), cert. denied, 485 U.S. 1022, 108 S.Ct. 1577, 99 L.Ed.2d 892 (1988).
Vontsteen's argument is premised on receipt of an increased ("more severe") sentence proscribed by Pearce; however, only the sentence on count 22 was arguably increased.
As more fully discussed, we hold the Pearce presumption inapplicable here; Vontsteen did not receive a net increase in his sentence.
In so holding, we note other circuits have employed similar analysis. E.g., Kelly v. Neubert, 898 F.2d 15, 18 (3rd Cir.1990) ("Like the First and Seventh Circuits, we believe Pearce's per se prophylactic rule should not be mechanically applied when some of the defendant's individual sentences are increased, but his aggregate sentence is reduced on remand following a successful appeal."); United States v. Gray, 852 F.2d 136, 138 (4th Cir.1988) ("[R]esentencing will not be considered vindictive if the ultimate sentence for one or more counts does not exceed that given for all counts sentenced at the conclusion of the first trial." (citations and footnote omitted)); United States v. Bay, 820 F.2d 1511, 1513 (9th Cir.1987) ("Our precedent thus instructs us to evaluate [the] sentence in the aggregate and not merely with respect to each individual count."); United States v. Busic, 639 F.2d 940, 951 n. 12 (3d Cir.), cert. denied, 452 U.S. 918, 101 S.Ct. 3055, 69 L.Ed.2d 422 (1981) ("Because defendants' initial composite sentences would not be increased ... on resentencing, the due process protections against vindictiveness alluded to in [Pearce] ... are inapplicable here. Furthermore, because the appeal could not result in a higher sentence than that originally imposed, there could be no deterrent to an appeal.")
In addition to Vontsteen's overall sentence not being increased ("more severe"), this case does not fall squarely under Pearce for several other reasons. For example, Vontsteen was not sentenced after a new trial, one of the stated prerequisites for triggering the Pearce presumption. Factors that come into play concomitant with a new trial, such as the burden imposed on the trial judge, and which might give rise to vindictiveness, are not present here. A presumption of vindictiveness against a trial judge is a serious charge, certainly not one to be made without an extremely sound basis. For this, and other obvious reasons, we are more than mindful that we should not expand the Pearce prophylactic rule absent compelling reasons. The Supreme Court in the 21 years following Pearce has certainly not done so.
As reflected above, the Supreme Court's justifiably restrained application of the Pearce prophylactic rule is reflected in numerous decisions. E.g., Alabama v. Smith, ___ U.S. at ___, 109 S.Ct. at 2202 ("[N]o presumption of vindictiveness arises when the first sentence was based upon a guilty plea, and the second sentence follows a trial."); Texas v. McCullough, 475 U.S. 134, 140, 106 S.Ct. 976, 979, 89 L.Ed.2d 104 (1986) (The presumption does not apply when "different sentencers assessed varying sentences." The first sentence was imposed by a jury; the second, by a judge.); Chaffin v. Stynchcombe, 412 U.S. 17, 26-28, 93 S.Ct. 1977, 1982-83, 36 L.Ed.2d 714 (1973) (Pearce is inapplicable where the judge imposed the initial sentence and the jury imposed an increased sentence after retrial.); Colten v. Kentucky, 407 U.S. 104, 116-17, 92 S.Ct. 1953, 1960, 32 L.Ed.2d 584 (1972) (The presumption did not apply where a second court in a two-tier trial system imposed a longer sentence.).
Nor, as noted, is there any evidence of actual, or even apparent, vindictiveness; the resentencing process reflects just the opposite, as partially discussed in parts II.A. and B. Vontsteen received a complicated sentence on multiple counts. Initially, he received ten years incarceration and five years probation. On resentencing, after preparation of a revised presentence report and a thorough hearing, he received ten years incarceration (with credit for the 22 months already served) and no probation.
Vontsteen's new sentence, viewed in context, shows no "retaliatory animus." See United States v. Pimienta-Redondo, 874 F.2d 9, 12-14 (1st Cir.) (en banc), cert. denied, ___ U.S. ___, 110 S.Ct. 233, 107 L.Ed.2d 185 (1989) (citations omitted), where the court stated:
Moreover, this court noted the trial court's broad discretion in resentencing Vontsteen on remand. Vontsteen I, 872 F.2d at 632. It is permitted to consider a "breadth of information" in determining an appropriate sentence. Pimienta-Redondo, 874 F.2d at 14 (quoting Wasman v. United States, 468 U.S. 559, 564, 104 S.Ct. 3217, 3220, 82 L.Ed.2d 424 (1984) (plurality opinion)).
The court's authority to retrofit a sentence for multicount convictions after some are affirmed and others reversed "looms as an integral component of the trial judge's broad sentencing discretion." Pimienta-Redondo, 874 F.2d at 14 (footnote omitted). Vontsteen received a complicated sentence. The district court may consider the totality of his underlying criminal conduct and society's interest in ensuring that the punishment "suit[s] not merely the offense but the individual defendant." See id., quoting Wasman, 468 U.S. at 564, 104 S.Ct. at 3220; See also United States v. Bentley, 850 F.2d 327, 328-29 (7th Cir.), cert. denied, 488 U.S. 970, 109 S.Ct. 501, 102 L.Ed.2d 537 (1988).
Given these considerations, we see no need to remand merely to require the district judge to state on the record now why he imposed the sentence. We recognize, however, the potential for a vindictiveness claim, meritorious or not, in any resentencing. Therefore, we recommend strongly that a court state its reasons when imposing a new sentence, including for its length.
The judgment of the district court is
ALVIN B. RUBIN, Circuit Judge, dissenting.
The majority opinion tells Vontsteen that by obtaining the reversal of 21 of the 22 counts on which he was convicted and for which he was sentenced he has achieved nothing but a Pyrrhic victory. Under the original sentence, if he had complied with the conditions of probation, he would have served no time in prison; instead, he has
Pearce recognized that "[d]ue process of law ... requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial."
The majority suggests three bases for its refusal to apply the Pearce presumption. I respectfully disagree with each.
First, it is plainly not the law of this circuit that sentencing "after a new trial [is] one of the stated prerequisites for triggering the Pearce presumption."
The majority then attempts to distinguish Pearce on another ground: Vontsteen did not receive a "net increase" in his sentence, and "arguably" received a net decrease since his total original sentence amounted to ten years in prison and five years probation, compared to the ten years in prison imposed upon resentencing.
The majority thus breaks new ground in comparing only the total original sentence with the sentence finally imposed, and, in so doing, contravenes Pearce. Pearce focused on the misuse of the sentencing judge's discretion, not on matters beyond his control; here, no retrial, resentencing, judicial discretion, or vindictiveness was legally possible with regard to the overturned counts, which the majority would nevertheless crowd onto its scales.
The warrant for applying the Pearce presumption in cases like this is more than merely algebraic. Under these circumstances, the trial judge surely has a "personal stake in" the judgment originally entered and a "motivation to engage in self-vindication."
Our opinion reversing the original conviction expressly provided that the judge upon resentencing was not limited to the probationary sentence originally imposed on count 22.
Requiring the sentencing judge to explain the sentence imposed under these circumstances implies no doubt of the integrity or wisdom of the trial judge. It is simply a means to allay reasonable suspicion that undertaking even a successful appeal was a feckless effort, and to enable a reviewing court to perform its duty on the basis of information rather than speculation. That the judge must have desired to effectuate the same sentence notwithstanding the reversal of 21 of 22 counts and the loss of 105 years of available sentence explains nothing save the obvious. The trial judge patently desired to do just that. The question is why. If anything, better reason for an increase might be presumed in the Pearce situation after a retrial at which evidence of different conduct or events might crop up.
The rule created by the majority necessitates proof of "actual or apparent vindictiveness by the trial judge," a formidable task. How would a defendant prove such vindictiveness by a judge who said nothing but merely announced a sentence? Under the majority's rationale, a de minimis sentence could be increased indefinitely to its statutory maximum if 21 consecutive capital sentences had been vacated as the result of illegal convictions, even if the surviving charge was originally of an entirely different order. The prospect that a reversal of convictions on 21 counts will result in the same sentence as that originally imposed presents the type of "appeal chilling" that the prophylactic rule of Pearce was designed to prevent.
Finally, the majority appears to suggest that its decision is supported by a trend in the Supreme Court to lessen the scope of the Pearce presumption. Assuming our work to be directed by dipping our judicial fingers in the water for such currents, I find no such flow in the post-Pearce opinions. The later cases do emphasize a premise explicit in Pearce: for a presumption of vindictiveness to arise, the sentencer must at least be the same,
The majority may be unduly reluctant to apply the Pearce presumption because they exaggerate the effect of doing so in this situation. The presumption is not a per se rule insensitive to meaningful distinctions, and responds to differing circumstances brought to the court's attention upon resentencing as well as to the means by which the reasons for imposing the suspect sentence "affirmatively appear."
There is another means of resolving this issue in the district court. We note in this case, as in United States v. Forester, 874 F.2d 983 (5th Cir.), cert. denied, ___ U.S. ___, 110 S.Ct. 284, 107 L.Ed.2d 264 (1989), that the absence of such explanation by the trial judge can be attributed to Vontsteen's failure to raise the Pearce issue in the district court. In Forester, the court held that "if Pearce vindictiveness is claimed, it should be adequately brought to the sentencing judge's attention so that the judge is given a fair opportunity to state on the record the pertinent reasons for the resentence." Id. at 984. In Forester, because, as here, the defendant did not raise the Pearce argument in the district court, this court looked to the plain error standard of review, found no miscarriage of justice, and therefore did not address the Pearce issue. The government did not raise the question of Vontsteen's duty to first present the Pearce challenge in the district court until oral argument. Accordingly, we have addressed the Pearce issue; but defendants are admonished to timely bring a Pearce vindictiveness challenge to the sentencing judge's attention.