910 F.2d 187 (5th Cir. 1990), 89-2745, United States v. Vontsteen

Docket Nº:89-2745.
Citation:910 F.2d 187
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Gerald VONTSTEEN, a/k/a Skip Vontsteen, Defendant-Appellant.
Case Date:August 17, 1990
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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910 F.2d 187 (5th Cir. 1990)

UNITED STATES of America, Plaintiff-Appellee,

v.

Gerald VONTSTEEN, a/k/a Skip Vontsteen, Defendant-Appellant.

No. 89-2745.

United States Court of Appeals, Fifth Circuit

August 17, 1990

Alvin B. Rubin, Circuit Judge, dissented with opinion.

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H. Michael Sokolow, Asst. Federal Public Defender, Roland E. Dahlin, II, Federal Public Defender, Houston, Tex., for defendant-appellant.

Paula C. Offenhauser, Asst. U.S. Atty., Henry K. Oncken, U.S. Atty., Houston, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Texas.

Before RUBIN, JONES, and BARKSDALE, Circuit Judges.

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. Secs. 1341 and 1342 and on one count of transporting stolen property in interstate commerce in violation of 18 U.S.C. Sec. 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

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count. On resentencing, before the judge who had imposed the original sentence, Vontsteen received the same sentence of incarceration, with credit for time already served.

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.

I.

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. 1

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:

Defendant was convicted on 22 counts and received a complicated sentence allocated among these counts. Now that we have reversed the convictions on all but one count, we think it appropriate that he be resentenced on this count (count 22), as the original sentencing decision obviously was based on an overview of the case that has changed dramatically. In remanding, we express no view as to whether defendant should receive, on count 22, the same or a lesser or greater sentence than he received originally. As always, that decision rests within the discretion of the district court.

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.

II.

Our discussion of Vontsteen's claims concerning the presentence report reflects the

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detailed nature of the resentencing hearing, which has immediate application to his due process/vindictiveness claim. Accordingly, we will address that claim last.

A.

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. Sec. 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.

B.

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. 2 The report's computation is not based on the reversed mail fraud charges, but on the value of all of the stolen pipe related to the offense under count 22 (interstate transportation of stolen property). The value of the three particular shipments specified in count 22 of the indictment was $33,828.40;

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but at trial, the government proved that Vontsteen was shipped, and never paid for, pipe worth $489,000. The revised presentence report, referring to United States Parole Commission Rules and Procedures Manual, Chapter 3, Subchapter D, Sec. 331(g) n. (1), states:

In determining the applicable offense category, the larger losses to Mustang Supply Company in excess of $489,000 were utilized. This was done because the total amount of the theft committed or attempted by the offender (or the value of losses relating to that theft) is to be used. This larger amount is ... appropriate ... because the count of conviction represents three of the forty loads of oilfield pipe which AMRO fraudulently obtained from Mustang Supply Company.

The district court did not err in not requiring revision of the report's calculation of the total theft. See 28 C.F.R. Sec. 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...

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