950 F.2d 1086 (5th Cir. 1992), 89-2745, United States v. Vontsteen

Docket Nº:89-2745.
Citation:950 F.2d 1086
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Gerald VONTSTEEN, a/k/a Skip Vontsteen Defendant-Appellant.
Case Date:January 07, 1992
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 1086

950 F.2d 1086 (5th Cir. 1992)

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

January 7, 1992

Page 1087

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.

Page 1088

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

Before CLARK, Chief Judge, POLITZ, KING, GARWOOD, JOLLY, HIGGINBOTHAM, DAVIS, JONES, SMITH, DUHE, WIENER, BARKSDALE, and EMILIO M. GARZA, Circuit Judges. [*]

W. EUGENE DAVIS, Circuit Judge:

Gerald Vontsteen appeals his sentence, claiming a due process violation under North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). A panel of this court gave plenary review to Vontsteen's claims and affirmed the sentence. Upon rehearing en banc, we, too, affirm Vontsteen's sentence, but hold only that the district court's sentence did not amount to plain error.

I.

A jury convicted Gerald Vontsteen in January 1988 on twenty-one counts of aiding and abetting mail fraud (in violation of 18 U.S.C. §§ 1341 and 1342) and one count of transporting stolen goods (in violation of 18 U.S.C. § 2314). The district court sentenced Vontsteen as follows: 1 (1) five years imprisonment 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 on Counts 1 through 10; (3) five years suspended on Count 21 for five years supervised probation, to commence on completion of parole; and (4) ten years on Count 22, to run concurrent with the sentence on Count 21, suspended for five years supervised probation, also to begin on completion of parole. Further, the court ordered five hundred hours of community service as a condition of probation. The net result of this sentencing package was ten years imprisonment followed by five years of supervised probation and five hundred hours of community service.

This court reversed the mail fraud convictions (Counts 1 through 21), vacated the entire sentence, and remanded for resentencing on Count 22. United States v. Vontsteen, 872 F.2d 626 (5th Cir.1989) (Vontsteen I ). At the resentencing hearing, the district court overruled Vontsteen's objections to the revised presentence report and resentenced him to ten years imprisonment, without any probation or community service to follow. Vontsteen made no objection to the sentence.

Vontsteen again appealed, raising inter alia the due process question at issue here. A divided panel of this court, after reviewing the merits of Vontsteen's argument, affirmed the sentence. United States v. Vontsteen, 910 F.2d 187 (5th Cir.1990) (Vontsteen II ), cert. denied, --- U.S. ----, 111 S.Ct. 801, 112 L.Ed.2d 862 (1991). We granted rehearing en banc to consider Vontsteen's Pearce claim. 919 F.2d 957 (5th Cir.1990).

II.

Vontsteen argues that the district court's sentence violates due process under North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). In Pearce the Supreme Court addressed judicial vindictiveness by trial courts against defendants who take successful appeals. To ensure that defendants are free from even the apprehension of such judicial vindictiveness, the Court:

concluded that whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear. Those reasons must be based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding. And the factual data upon which the increased sentence is based must be made part of the record, so that the constitutional legitimacy of

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the increased sentence may be fully reviewed on appeal.

Id. at 726, 89 S.Ct. at 2081. Vontsteen argues that the district court failed to satisfy this mandate when it resentenced him following his successful appeal. He maintains that his second sentence was "more severe" for Pearce purposes because the sentence on Count 22 increased from five years probation to ten years imprisonment. According to Vontsteen, the sentence violates Pearce because the court's reasons for the more severe sentence do not "affirmatively appear."

A.

We first address 2 the standard of review. The panel majority in Vontsteen II gave plenary review to Vontsteen's claim of Pearce error. Because Vontsteen failed to make a contemporaneous objection and alert the district court to the claimed Pearce violation, we conclude that the proper standard is plain error.

The Supreme Court grounded the Pearce rule in constitutional due process of law. Pearce, 395 U.S. at 725, 89 S.Ct. at 2080. This does not, however, excuse a defendant from the usual requirement that he lodge a contemporaneous objection to preserve an issue for appeal. "No procedural principle is more familiar to this Court than that a constitutional right may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it." Yakus v. United States, 321 U.S. 414, 444, 64 S.Ct. 660, 676, 88 L.Ed. 834 (1944). The Supreme Court recently noted that the "most basic rights of criminal defendants" are subject to waiver under the contemporaneous objection rule. Peretz v. United States, --- U.S. ----, 111 S.Ct. 2661, 2669, 115 L.Ed.2d 808, 822 (1991) (waiver of right to have Article III judge preside at jury selection), citing United States v. Gagnon, 470 U.S. 522, 528, 105 S.Ct. 1482, 1485, 84 L.Ed.2d 486 (1985) (absence of objection constitutes waiver of right to be present at all stages of criminal trial); Levine v. United States, 362 U.S. 610, 619, 80 S.Ct. 1038, 1044, 4 L.Ed.2d 989 (1960) (failure to object to closing of courtroom is waiver of right to public trial); Segurola v. United States, 275 U.S. 106, 111, 48 S.Ct. 77, 79, 72 L.Ed. 186 (1927) (failure to object constitutes waiver of Fourth Amendment right against unlawful search and seizure); United States v. Figueroa, 818 F.2d 1020, 1025 (1st Cir.1987) (failure to object results in forfeiture of claim of unlawful postarrest delay); United States v. Bascaro, 742 F.2d 1335, 1365 (11th Cir.1984) (absence of objection is waiver of double jeopardy defense); United States v. Coleman, 707 F.2d 374, 376 (9th Cir.1983) (failure to object constitutes waiver of Fifth Amendment claim).

The reasons for the contemporaneous objection rule are well known. "This salutory [sic] rule has its roots in obvious considerations of finality of the criminal trial process, of judicial efficiency, and of avoiding trials by ambush." United States

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v. Perez, 651 F.2d 268, 273 (5th Cir. Unit A July 1981). More fully,

"There are many rationales for the raise-or-waive rule: that it is a necessary corollary of our adversary system in which issues are framed by the litigants and presented to a court; that fairness to all parties requires a litigant to advance his contentions at a time when there is an opportunity to respond to them factually, if his opponent chooses to; that the rule promotes efficient trial proceedings; that reversing for error not preserved permits the losing side to second-guess its tactical decisions after they do not...

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