United States v. Gerald Vontsteen, A/K/A Skip Vontsteen

court, the That Supreme Court. voluntary States finding of a support dence clearly Appeals, of Corpus Christi Court magistrate determined manslaughter. procedural default. on expressly the relied comply with and failed had that Goodwin on rule. Based objection contemporaneous Sykes, Wainwright of

the doctrine III. reliance state of the last court’s Because pe- magistrate recommended (1977),the default, procedurally we are procedural pro- Goodwin because denied tition be reviewing the merits from barred relief and collateral cedurally from barred court district judgment claim. for the adequate cause to show had failed affirmed. is jury arising from prejudice default court The district given. instruction AFFIRMED. its added magistrate’s report,

adopted relief. Goodwin and denied analysis,

own with this timely notice

filed issued a Cer- court

Court, district Cause. of Probable

tificate

II. has instruct Court Supreme America, STATES UNITED for a a basis mere existence ed that Plaintiff-Appellee, talismanic. is not procedural bar state the state apparent that Rather, it must be procedural relied on “actually ... VONTSTEEN, Skip Gerald a/k/a disposi for its basis independent

bar as Vontsteen, Defendant-Appellant. Mississippi, the case.” Caldwell tion of No. 89-2745. (1985). Recently, Harris Appeals, Court of gave federal Reed, Supreme Circuit. Fifth appli proper guidance into the more courts Aug. rule. default procedural cation instructed case, Supreme Court habeas federal default bars procedural rendering state court only if the last review express clearly and ease in judgment procedural on the judgment

ly rests 255, 109 Harris,

default. state inter- that where significant It is decision, court renders appellate

mediate sim- court thereafter highest state

and the review, is then it discretionary

ply denies appellate intermediate judgment reviewed in

court which certiorari, Supreme Court intermediate runs to the certiorari

writ of Accordingly, the Harris

appellate court. state court “the last reference

court’s should case” judgment

rendering a state refer understood if di- would be reviewed judgment

whose in the United granted had been

rect review Sokolow,

H. Michael Asst. Federal Public Defender, Dahlin, II, Roland E. Federal Defender, Houston, Tex., Public for defen- dant-appellant. Offenhauser, Atty.,

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

Before BARKSDALE, Judges. Circuit BARKSDALE, Judge: Circuit Appellant Gerald Vontsteen was convict- by jury twenty-one aiding ed counts of abetting mail fraud violation of 18 U.S.C. 1341 and 1342 and on one count §§ transporting property stolen in inter- state commerce in violation of 18 U.S.C. § appealed, arguing, among

Vontsteen oth issues, mailings er were required by furtherance of the fraud as agreed law. This court and reversed the twenty-one mail fraud counts. United Vontsteen, 872 F.2d 626 Cir. 1989) (Vontsteen I). Noting complexi ty sentencing package, the court remanded for on the remain- sentencing decision obvi- before resentencing, count. On ing on an ously was overview original sen- based imposed the who had dramatically. changed case that has same sen- tence, received the express no view as to incarceration, remanding, credit for time tence of receive, on should whether already served. great- the same or a lesser or count court: district argues that the Vontsteen originally. he received er sentence than rights by in- (1) his due violated within always, decision As that rests remaining on creasing his sentence court. district discretion of on other following successful count I, (emphasis F.2d at 632 Vontsteen the basis of counts; (2) on resentenced added). assumptions; and erroneous information calculation (3) employed remand, an erroneous re- for a and moved On Vontsteen relating to officer probation report. He by presentence requested Vontsteen’s vised recalculated, AFFIRM. level. We category offense parole guidelines his be that $33,828.40 only count involved because I. pipe previous calculation worth of and involving 22 counts over $1 based on charged in counts Vontsteen that the Vontsteen also asserted million. counts, with mail fraud through report cer- original presentence contained to defraud abetting in a scheme aiding and assumptions that had tain unsubstantiated approximate- obtaining suppliers, by seven sentencing the first challenged at (pipe), goods” in “tubular million ly $1.2 by ruled on hearing, not been but had causing pipe stolen with and count He that I. contended court Vontsteen transported from $33,828.40 to be worth in- assumptions these unsubstantiated Texas to Louisiana. mail fraud the reversed convictions volved I, district court In Vontsteen and, therefore, could not be considered. (1) years five as follows: tenced Vontsteen ordered revised The district court through counts 1 on prison each reflecting report “that (2) each on years five concurrently; run transpor- of conviction interstate offense concurrently through to run counts (count 22).” The property of stolen tation other, consecutive each with subsequently prepared officer probation through for counts report. revised years; ten a total incarceration of for five 21 for suspended on count years five hearing, Vontsteen At the supervision, to com- probation, with years report on several to the revised objected (4) and ten parole; completion mence on report value including: the used grounds, concurrently with to run count years on $33,- $489,000 pipe, rather than for the 21, suspended for count on the sentence as- 828.40, unsubstantiated and included supervision also years probation, five Following a de- hearsay. sumptions and parole.1 begin completion hearing, district thorough tailed and stated objections, but overruled these court fraud convic- reversing the mail After setting them it that would consider 1-21), (counts vacated court tions then sen- The district sentence. resentencing on remanded sentence and years, ten without tenced Vontsteen so, observed: doing the court 22. In count of sen- length for the stating the reasons 22 counts convicted Defendant was tence. allo- complicated sentence and received that we among counts. Now these cated II. on all but the convictions have reversed con- of Vontsteen’s claims discussion that he Our count, appropriate think it one report reflects 22), cerning presentence (count on this count be resentenced Sentencing Guidelines. prior tenced under the charged occurred offenses Because the sen was not Vontsteen November “[tjhere proof is no resentencing hear- officer’s admission nature of detailed government way the other.” The application to his one or ing, has immediate could con- argues the information Accord- claim. process/vindictiveness pro- it obtained claim last. sidered because was ingly, we will address com- department and was based on bation lodged against Vontsteen plaints A. govern- own admissions. Vontsteen’s the district argues probation offi- that trained ment also notes of erro him on the basis resentenced investigative proce- employ cers various con assumptions neous information verifying information used dures pro Due report. presentence in the tained general- reports their reports their relied on in requires that information cess See, ly presumed e.g., reliable. Gardner appropriate sentence have determining an 359-60, Florida, reliability” and minimal indicium of “some Flores, 51 L.Ed.2d 393 relationship the deci some rational “bear 1112-13; at United States particular sentence.” impose a sion to (5th Cir.1981). Long, 656 F.2d F.2d Fulbright, Garcia, 693 F.2d In (5th Cir.1986). The bears defendant Cir.1982), (5th the this noted demonstrating informa the burden of that kind “wide discretion district court’s relied on sentenc the district court tion of information considers and source [it] “materially untrue.” ing is imposing The district court was sentence.” Flores, Cir. accord some “minimal indicium entitled to 1989). Vontsteen has satisfied reliability” information to the contained burden. report. Fulbright, 804 F.2d in the at objects particular Vontsteen two 3661; v. Je U.S.C. Roussell See also 18 § report. presentence in the references (5th Cir.1988). ane, First, to his argues he reference Moreover, offered no or Vontsteen facts making representations about fraudulent prove that the information was evidence to standing banking references the credit unreliable and inaccurate or therefore (a through which company of AMRO Flores, proof. to meet his burden of failed operated) is Vonts incorrect. Vontsteen 1112-13. 875 F.2d at testimony trial of the states that the teen showed that government’s own witnesses B. banking ver

the trade and references were record, however, sufficiently ified. argues that the dis also Vontsteen pipe sell supports that Vontsteen enticed failing trict court erred correct misrepre him ers to extend credit based computation presentence report’s parole For of his financial condition. sentations it have reflected guidelines; should suppliers testified that example, several re property values of after the diminished state to them financial Vontsteen tendered mail fraud convictions.2 versal proved government later which the ments report’s computation is not based on false. were charges, fraud but on reversed mail pipe related Second, in of the stolen objects to the value of all Vontsteen (interstate transpor count 22 made offense unsupported allegations under clusion The value property). including unautho tation of stolen employer, both former specified in particular shipments and em three employer’s rized use of the credit $33,828.40; indictment was probation count 22 He relies on bezzlement. runs afoul of 28 correctly that the used C.F.R. notes that the amount in calculation 2. Vontsteen 2.19(c), report corresponds provides to the amounts that "the Commission revised § the used which The difference charges in dismissed counts 16-21. determination shall not consider parole guidelines changed values Vontsteen's guilty prisoner upon was found not ” months to 36 to months. 28 12 to 16 from after trial.... 2.20, (d). 331(b), argues Vontsteen § ¶ C.F.R. C. trial, proved government at for, paid shipped, and never Vontsteen concerning complaints pre $489,000. presen- The revised pipe worth ap report and the district court’s referring to United report, tence having rulings use of it plicable Rules and Procedures Parole' Commission process/vin to the rejected, we turn D, 331(g) 3, Subchapter Manual, Chapter § n Relying on North Car claim. dictiveness (1), states: n. Pearce, 711, 89 S.Ct. olina offense determining applicable (1969), ar 23 L.Ed.2d 656 Mustang larger losses to category, “objective gues there $489,000 that because Company in excess of Supply concerning conduct information identifiable was done because utilized. This were occurring theft af part committed on the of the the total amount (or (id. val- attempted by original proceeding” the offender or ter time theft) is to relating to that 2081) justifies ue of losses at ap- larger amount is ... This be used. in the sentence on count increase” “severe of con- the count ... because propriate process of violates due the sentence forty three of represents viction law. AMRO fraud- pipe which oilfield loads of Pearce concerned sentences after retrial Supply Mustang from ulently obtained original at the greater than those Company. the trial, retrial from the resulted where re- not err not court did The district original sentence having had the defendant report’s calculation of revision quiring through attack. Hold- aside collateral set 2.20, theft. See 28 C.F.R. of the total § process, of due ing this violative that A(2)(a), 13, which Subchapter Chapter Supreme held: by monetary rated that offenses after was sentenced a ample, Vontsteen not trial, prerequisites one of the stated

new presumption. triggering the Pearce 1. play into concomitant that come Factors holding, note other circuits have we In so trial, im- such as the burden with newa Kelly v. analysis. E.g., employed similar might judge, trial and which posed on the (3rd Cir.1990) 15, Neubert, 18 898 F.2d vindictiveness, present not are give rise to Circuits, we (“Like the and Seventh First presumption here. A prophylactic rule per se believe Pearce’s charge, judge is a serious against a trial mechanically applied when not be should made without an certainly not one to be individual some defendant’s this, and other extremely basis. For sound increased, aggregate but his tences reasons, we are more than mindful obvious following a on remand is reduced sentence expand pro- not should we appeal.”); v. successful compelling reasons. Cir.1988) phylactic rule absent 136, (4th 138 Gray, 852 F.2d years 21 follow- Supreme Court not vin- (“[Rjesentencing will be considered done so. ing certainly has not one or if ultimate sentence for Pearce dictive increased, Indeed, ing on count 22 was argued sentence that Vontsteen’s it can actually implication. questioned decreased. The aggregate this Unit sentence has 869, (5th Cataldo, on count 22 technical- of incarceration sentence v. F.2d 875 ed 832 States ly 1022, same. The denied, remained the Cir.1987), 108 S.Ct. cert. 485 years counts for ten incarceration included (1988), 1577, stated 892 the court it 99 L.Ed.2d 22, suspended years for count but and ten minority of a ... dicta was “not bound years probation 22 for five execution on count United States v. en banc Court.” See also begin completion of supervision, 655, Cir.1986); (5th Colunga, n. 4 658 again resentencing, Vontsteen was parole. On (5th Cir.), remand, 812 F.2d 196 after years prison, no subse- but sentenced quent probation. ten S.Ct. 484 U.S. 108 98 Crawford, L.Ed.2d Cir.1985), (5th rt. denied sub 769 nom., Waggoner Henry, recognize ce 4. We States, banc) 1983) (en v. United (plurality) Cir. on an individual dicta an increase states in However, may implicate assum- Pearce. count 976, 979, L.Ed.2d 134, 140, 106S.Ct. pro Pearce is clear: the This much (The broadened; (1986) presumption apply does not ar has not been rule phylactic According vary narrowed. “different assessed has been sentencers guably, it when instances expand it to sentence was ing The first we decline sentences.” ly, increased, second, is not by judge.); imposed by jury; the overall a a where more counts for one or the sentence 26- Stynchcombe, Chaffin As the Su scheme is. 1982-83, overall within 93 S.Ct. Alabama v. recently in stated preme Court (Pearce (1973) inapplicable where U.S.-, 2204- Smith, initial sentence and the imposed the (citations omit 05, 104 L.Ed.2d 865 after increased sentence jury imposed an ted): retrial.); Kentucky, 407 U.S. Colten appeared on its opinion 1953, 1960, 116-17, While Pearce sweeping di- a rule of face to announce (1972) (The apply presumption did not cases have mension, subsequent our in a two-tier trial a second where of vindic- that its made clear sentence.). longer system every case apply not tiveness “do[es] receives a where convicted retrial.” Texas higher sentence noted, Nor, any is there evidence explained As we McCullough.... vindictiveness; actual, apparent, or even evil McCullough, “the Texas v. just reflects sought prevent” [Pearce ] parts partially discussed opposite, as sentences imposition “enlarged compli- received a B. II.A. trial” but “vindictiveness after a new Initial- multiple counts. sentence on cated Because ... sentencing judge.” years ten incarceration ly, he received operate in the “may resentencing, af- years probation. On five improper proof of an absence presentence a revised preparation of ter legitimate ... block thus motive and thorough hearing, he received report and a conduct,” United response criminal (with for the credit years incarceration ten Goodwin, have limited ... served) proba- and no already months ‘judi- that of “other like application, tion. effectuating the cially means created ” to [Constitution],’ by the rights secured sentence, in con- viewed Vontsteen’s new are ‘objectives “where its circumstances “retaliatory text, animus.” shows ” served,' efficaciously thought most Pimienta-Redondo, 874 v. circum- Such McCullough_ Texas Cir.) (en banc), (1st 9, 12-14 is a there which — are those stances -, 110 S.Ct. U.S. likelihood,” “reasonable omitted), (citations (1989) L.Ed.2d in sen- the increase Goodwin, that ... the court stated: where vindictive- of actual product tence is the principle that the Pearce important It is sentencing au- part ness on the proportion. Pearce out of not be blown reason- is no such there thority. Where resentencing, or flatly prohibit does not upon likelihood, remains the burden able sentence, after the even enhancement vindictive- prove actual Rath- appeal_ an has taken accused States_ ness, v. United see Wasman in Pearce er, envisioned presumption above, Supreme Court’s As reflected reason- in which a “only in cases arises application of justifiably restrained exists.” of vindictiveness able likelihood in nu- rule is reflected prophylactic Pearce * * * * * * E.g., Alabama merous decisions. sentencing judge’s motivation Where at-, at 2202 Smith, question, fairly into called cannot be arises of vindictiveness (“[N]o presumption conjec- indulge in the there is no need upon a based when first risks, ture, which run the fol- the second plea, and guilty Absent necessarily entails. McCullough, trial.”); Texas lows Wasman, 104 S.Ct. at 468 U.S. at some improper motive—or proof of an 3220; Bentley, suspect existence of See also United States reason sound (7th Cir.), apprehension of vin- cert. de reasonable one—no Accordingly, on nied, can flourish. dictiveness reasonably clear if it is resentencing, impost mere- reshaped the judge original bringing ly as a means fruition after some tencing intentions considerations, see no these Given intervened, a need had development new merely require the dis- need to remand employing why to state on the record now trict terms, in different arises. Stated never recognize, he the sentence. We actual, some evidence must be there however, potential for a vindictive motiva- apparent, or at least claim, not, resentenc- or meritorious can be a due violation tion before Therefore, strongly we recommend ing. claimed. impos- a court state its reasons when Moreover, noted the trial this court sentence, including for ing a new discretion court’s broad Likewise, consider a length.5 if defendants I, 872 remand. Vontsteen

Vontsteen they implicated, Pearce issue cautioned permitted to consider F.2d at 632. It is court, it in the trial as dis- to first raise determining an of information” “breadth cussed in note 5. Pimienta-Redondo, sentence. appropriate (quoting v. United at 14 Wasman III. 559, 564, 104 States, opin- (plurality judgment the district The ion)). AFFIRMED. authority to a sen- retrofit court’s some convictions after tence for multicount RUBIN, Judge, B. Circuit ALVIN “looms as others reversed are affirmed and dissenting. judge’s the trial integral component of majority opinion tells Vontsteen Pimienta- sentencing discretion.” broad obtaining the reversal omitted). (footnote Redondo, 874 F.2d at he and for which was convicted counts on complicated sentence. received has achieved he sentenced he totality may consider the district nothing Pyrrhic victory. Under the and soci- underlying criminal conduct of his sentence, complied if he had punish- ensuring ety’s interest probation, he have the conditions of would merely the offense but ment “suit[s] instead, id., prison; he has time quoting served no defendant.” See the individual issue in why failure to raise the Pearce questions we make this rec- to Vontsteen's dissent The Forester, ommendation, when, the held this court. In under facts of the district the claimed, case, We is it require such a "if Pearce vindictiveness we do not statement. above, hope sentencing brought adequately in the of to the so for the reason stated should be do resolving court, judge given and there- judge's issues in the district is a fair attention so that the appeal. by, removing ommend, To so rec- pertinent an issue from opportunity record to state on the the fostering judicial hope effi- of the Id. In reasons for the resentence.” at 984. improving ciency economy because, here, and otherwise Forester, and did not as the defendant thing; justice court, but to of is one argument administration the district the Pearce raise necessary, thereby and require that is not plain error this review, looked to standard appeal, yet possible is for another error create miscarriage justice, and no found reject We embrace former another. address the Pearce The did not issue. therefore latter. question government of Vonts- did not raise the challenge present duty the Pearce to first teen’s resolving this issue is another means of There argument. case, Ac- court until oral in the district in this as in district court. We note in the issue; Forester, (5th Cir.), cordingly, have addressed the Pearce States v. 874 F.2d — timely bring denied, -, admonished to defendants U.S. cert. challenge to sentenc- (1989), vindictiveness a that the of such Pearce absence L.Ed.2d explanation by ing judge's attention. be attributed the trial can suspended, years 22 from ten count incarceration years ten sentenced years ten incarcera- years probation, to expla- five remaining count. Absent one on the tion, pre- invoke the Pearce sufficient create a nation, is sufficient this increase require sumption of vindictiveness by the defendant apprehension reasonable explain action. judge at his trial least for his other- against him vindictiveness drastic increase explanation, so an Absent shrug off I appeal. cannot successful wise original sentence of the makes reversal time and ten no between the difference appellant. triumph for the paper discern, durance, I nor can in federal years circumstances, any reason for under these three for its majority suggests bases recom- hortatory “strong” majority’s presumption. I apply the Pearce refusal to a court state in the future mendation that disagree with each. respectfully unless for such conduct reasons ap- majority’s concern eases dicta A. “poten- recognizes it as

proving what resen- claim tial for vindictiveness First, plainly not the law of it is not re- court is the district tencing.” If sentencing trial a new circuit that “after why rec- any explanation, provide quired trig- prerequisites for one of stated [is] the unnec- courts do district ommend that As we presumption.”4 gering Pearce respectfully dissent I essary? therefore observed, cap- previously Court have “[t]he deci- 11(C) majority’s section from in the the notion vindictiveness tured sion, application regarding of a reversal discrete occurrence North from vindictiveness sumption of punish the court to prompting the lower therefore, and, Pearce,1 dis- Carolina way, another “when Put defendant.”5 judgment. from the sent after imposes a harsher sentence trial court inter- process process due recognized appeal, a successful Pearce “[d]ue set against requires the court to preted that vindictiveness Pearce requires law ... successfully at- having justifying reasons increased forth a defendant of vindic- play to overcome must tence conviction tacked his first has Accordingly, this circuit after a new he receives tiveness.” part in the sentence in- requires that considered process also trial.”2 “[D]ue pan- by a recategorization of volved offense apprehension freed of a defendant Parole Commission7 the United part of el of on the retaliatory motivation such a resentencing.8 solely for addition, in remands sentencing judge.” empha- repeatedly has Supreme from vindic- a defendant protects is the targeted the evil sized that successfully attacked having tiveness for sentencing judge, itself when the conviction even his sentence enlarged sentence mere fact that simply whether issue is is affirmed. Indeed, trial.9 a new imposed after on was increase in the judge’s the trial Forester, 8. United States v. 1. 395 curiam), Cir.) (per -, S.Ct. at 2080. Id. at Colunga, denied, II), Cir.) (Colunga 484 U.S. (5th cert. 726, at 2080. S.Ct. Id. at 89 3. 165, (1987); 857, Unit 120 98 L.Ed.2d 108 S.Ct. 655, (5th Colunga, 659 F.2d v. 786 ed States added). 5861, (emphasis op. at 193 Slip 4. Cir.1986) I). (Colunga 1477, (5th 1479-80 Spears, 894 F.2d v. 5. Kindred Cir.1990). — U.S.-, Smith, 109 S.Ct. 9. See Alabama v. 2204, 2201, (citing Texas 865 104 L.Ed.2d 869, (5th Cataldo, 874 832 F.2d v. 6. United States 976, 134, 138, McCullough, S.Ct. U.S. 106 475 Cir.1987), 1022, denied, 108 S.Ct. 485 U.S. rt. ce (1986); Stynch 979, 104 L.Ed.2d 89 Chaffin (1988). 1577, 892 99 L.Ed.2d 1982, 1977, 17, 25, combe, 36 S.Ct. 93 412 (1973)). 714 L.Ed.2d Kindred, F.2d at 1479-80. 894 7. 196 recently jeopardy15 portion pro- noted that and in a of a McCullough

Texas v. unnecessary per- of a new trial is not a cess discussion that was itself the burden decision,16 its rationale has also presumption.10 for a Pearce suasive basis reasoning panels.17 endorsed later only authority contrary The to the consists B. Forester, which at United States majority attempts then to distin- The most examines the Pearce ground: guish Pearce on another Vonts- through plain-error the weak lens of re- “net increase” in his teen did not receive a view.18 sentence, “arguably” received a net majority ground The thus new in breaks original sentence decrease since his total comparing only the total prison in years amounted to ten and five and, finally imposed, with the sentence years probation, compared years to the ten doing, so fo- contravenes Pearce. Pearce resentencing.11 prison imposed upon sentencing cused on the misuse of the majority adopt for the first would thus discretion, judge’s beyond not on matters prevail- “aggregate package” time the rule control; here, retrial, resentencing, his ing in other circuits.12 As the ma- several discretion, judicial or vindictiveness was le- observes, jority plurality opinion gally possible regard with to the over- this court en v. Hen- banc United States counts, majority turned which the would ry stated in dicta that the modification of a nevertheless crowd onto its scales. consecutively to run concurrent sentence charges applying after successful of other warrant for though sumption there in cases like this is more than evoked Pearce even appellant’s merely algebraic. in the aggregate decrease Under these circum- stances, dissenting judges surely judge “per- tence.13 The six also ful- the trial has a dicta, observing ly agreed judgment originally sonal stake in” the en- increase, engage there has been an in tered and a “motivation to course self- “[o]f 19 only the word ‘sentence’ that vindication.” sense of convicted defendant Henry: may apprehension can matter much to because of have a reasonable years appeal20 trial court’s action he had ten the trial desires to deter 14 Although rather seven.” and that serve than his ultimate sentence is vindic- questioned Henry unexplained dicta has been tive.21 When an increase in concerning subsequent opinions remaining, double sentence on a valid count foi- 106 15. 134, 139, 4; I, 10. Texas v. McCullough, Colunga 475 U.S. 786 F.2d at 658 n. 976, 979, 253, (1986). (5th Cir.1985), Crawford, 104 S.Ct. 769 F.2d 258 denied, 1103, 887, cert. 474 U.S. 106 S.Ct. 88 (1986). L.Ed.2d 922 3, 11. Slip op. at 5860 & n. at 192 & n. 3. Cataldo, 16. 832 F.2d at 874-75. adopted by 12. Similar rules have been the First Circuit, Pimienta-Redondo, see United States v. States, 1064, 17. See Paul v. United 9, denied, (1st Cir.), 874 F.2d 14-16 cert. Kindred, (5th Cir.1984) (dicta); n. 3 894 F.2d cf. -, 233, (1989); 110 S.Ct. at 1479. Third, Neubert, 15, Kelly v. see 898 F.2d 16-18 Busic, (3d Cir.1990); United States v. 639 F.2d 18. F.2d at 984. (3d Cir.), denied, 951 n. 12 cert. 452 U.S. Chaffin, 412 U.S. at 93 S.Ct. at 1983. Fourth, Gray, see United States v. 852 F.2d Ninth, (4th Cir.1988); and the see United Paul, (emphasis 734 F.2d at 1067 n. 3 Bay, 820 F.2d Cir. original); Hayes, see Bordenkircher v. 434 U.S. 1987); Hagler, United States v. 357, 363, 663, 667-68, 54 L.Ed.2d 604 (9th Cir.), (1978). 78 L.Ed.2d 260 Pearce, 2080; 21. U.S. at S.Ct. at (5th Cir.1983). 13. 21, 27-28, Blackledge Perry, see also 2098, 2102, 94 S.Ct. 40 L.Ed.2d 628 J., Meachum, 236, (Gee, (1st dissenting) Longval 14. 709 F.2d at 323 (empha- 237 Cir.1982). original). sis in

197 counts, why. anything, is If question that. The appeal of other a successful lows might equiva- reason for an increase very nearly better sentence resulting in a provided, in situation after a re- originally sumed the Pearce to the sentence lent conduct likelihood”22 that trial at which evidence of different a “reasonable there is crop up.25 re- appellate might access to the or events equal open has un- of criminal convictions view by majority necessi- The rule created impeded.23 constitutionally apparent proof of “actual or vindic- tates original convic- reversing judge,” a opinion by tiveness the trial formidable Our judge upon provided prove that the expressly a defendant such tion task. How would proba- not limited to the by judge nothing was who said a vindictiveness on originally imposed tionary merely sentence a sentence? Under announced may had a judge rationale, have 22.24 The a de minimis sen- majority’s count increasing sen- explanation indefinitely to its valid could be increased tence indeed, virtually or, requiring capi- if 21 consecutive statutory tence maximum as single law violation for a as the re- same sentence had been vacated tal sentences transgressions. convictions, for 22 even if the sur- illegal sult of an automatically invalidate originally entirely viving charge does not was case in- prospect sentence whether that a increased order. The rever- different single or resen- a count retrial of on 21 counts will result volves sal of convictions some of only im- originally the reversal tencing after same sentence expla- requires merely “appeal It multiple presents type counts. chill- posed rationale, the majority’s By prophylactic rule of Pearce ing” nation. that the for his give reasons prevent.26 must judge designed same who proceeding so in minor civil judgment C. by parties they may be understood may convert appeal and evaluated appears suggest Finally, majority case years in a criminal time to ten prison by supported a trend that its decision is ipse dixit. by sheer scope of to lessen the Supreme Assuming our presumption. to ex- sentencing judge Requiring dipping judicial our work to be directed these cir- imposed under plain the currents, I such fingers in water for integri- implies no doubt cumstances post-Pearce opin- no such flow the find It judge. the trial ty or wisdom prem- emphasize a cases do ions. later suspi- allay reasonable simply a means presumption of for a explicit ise Pearce: undertaking even successful cion that arise, the sentencer must effort, to enable a feckless same,27but that distinction at least be the duty perform reviewing court other apply here. devel- does not specu- rather than of information the basis rejection in Alabama opment has been desired judge must have That the lation. implicit Simpson rule v. Smith notwith- the same to effectuate Pearce; Rice, companion case to 22 counts of 21 of reversal standing the sentence was based on the initial Smith years of available of 105 loss and the the second sentence fol- guilty plea and obvious. nothing save the explains tence at which new information just lowed a trial to do desired patently The trial 3217, 3224-25, 571-72, — 424 -, 82 L.Ed.2d 104 S.Ct. Smith, at 2205 at U.S. 368, (1984). Goodwin, U.S. 457 States v. (quoting United (1982)). 2485, 2488, S.Ct. Cataldo, 832 F.2d 26. (5th Cir.1987), at 2101 n. Blackledge, 417 at 25 23. Cf. (1988). S.Ct. n. 4. Vontsteen, at-, 2206; Smith, 109 S.Ct. at See 24. See 979-80; (5th Cir.1989). McCullough, U.S. at 106 S.Ct. at 1982-83; 26-28, Chaffin, 93 S.Ct. at 104, 116-17, Kentucky, 407 U.S. Colten v. S.Ct. at McCullough, U.S. at 25. States, 32 L.Ed.2d 584 980; Wasman Vontsteen, trial For became available.28 provided the informa-

preceded and same sentences, judge inex- but the

tion for both In- earlier sentence. increased the

plicably

deed, majority would disable the presumption in all situations invert- requiring retrial as problem,

ing the Smith providing the

a condition for

of vindictiveness.29

D. unduly reluctant to may be majority they presumption because

apply the Pearce doing so in this

exaggerate the effect of per not a se situation. distinctions, meaningful

rule insensitive differing circumstances responds upon re-

brought court’s attention to the to the means

sentencing as well as suspect imposing for

which the reasons Be- “affirmatively appear.”30 sentence on increased

cause Vontsteen’s meaningful

count 22 is the present

him his circumstances and because warranting a Pearce

the classic indicia the sentence im-

sumption, I would vacate remand for

posed on count mandate, our

in accordance with

and, pun- increases his if the new sentence count, explanation for an ishment on that (Rod) Ponton, III, Paso, Tex., El Arvel retaliatory. and not why appropriate it is defendant-appellant Corcuera-Valor. Roberts, (Sib) Joseph Louis

Charles Abraham, Jr., Paso, Tex., El for defendant- Berlanga-Garcia. appellant McCrum, Roy Morgan, Michael W. Le America, UNITED STATES Jahn, Attys., Asst. U.S. Helen M. Evers- Plaintiff-Appellee, Antonio, Tex., berg, Atty., San plaintiff-appellee. Angel and Jose G. CORCUERA-VALOR

Berlanga-Garcia,

Defendants-Appellants. 89-1733.

No. THORNBERRY, GEE, Before Appeals, SMITH, Judges. Circuit Fifth Circuit. Aug. 1990. GEE, Judge: Circuit and convicted

The United States indicted appellants Angel Corcuera-Valor Jose Pearce, U.S. at 2081. S.Ct. at 2205-06. at-, supra section A. 29. notes “[i]n law, then, requires that property process of of the Due the total amount ... loss against used as the basis for defendant is vindictiveness ... involved Sheary also See rating.” severity successfully his first having offense attacked Comm’n, F.2d 822 Parole v. United States in the sen- play part must no conviction (The Cir.1987) reject- (5th 558-59 And after a new trial. receives tence he only could an offense argument ed the may fear of such vindictiveness since the the amount includ- categorized on based be defendant’s ex- unconstitutionally deter a and stated that in the indictment ed appeal or collateral- right to ercise has broad discretion parole commission conviction, process first ly his attack and prisoner for a release setting a time be freed requires that a defendant also in- any substantial into account “may take retaliatory mo- of such apprehension á establishing the it in available to formation sentencing part on the tivation Id. rating.” severity prisoner’s offense judge. (1985)). 2.19(c) 28 C.F.R. (quoting § of such to assure absence In order Moreover, may consider virtual- the court motivation, concluded that have evi- reasonably and relevant reliable ly more severe judge imposes a whenever an in- counts of dence, including dismissed after a new upon a defendant sentence dictment, allegations of criminal uncharged doing so must trial, reasons his underlying those activity, the facts Those reasons affirmatively appear. pursuit allegations, or counts upon informa- objective must based be concerning possible “fullest information conduct on concerning identifiable tion characteristics.” life defendant’s occurring after part of the York, 337 U.S. 241, 247, v. New Williams sentencing pro- the time (1949) L.Ed. 1337 93 S.Ct. 69 upon data And factual ceeding. also United omitted). States (footnote is based increased sentence Juarez-Ortega, F.2d 866 748-49 record, so part of the be made Johnson, must States Cir.1989); United (5th in- legitimacy Cir.1987). the constitutional (5th 840, 842 F.2d given for not more counts does exceed may fully reviewed creased conclusion of sentenced all counts at appeal. on (citations footnote omit- the first trial.” 725-26, 89 S.Ct. at ted)); Bay, omitted). This added) (footnote (emphasis Cir.1987) (9th (“Our precedent thus rule, vindictive- per or se us to evaluate instructs [the] ness, rule “prophylactic is a [which] merely respect and not aggregate as well vents actual vindictiveness count.”); individual to each of vindictive- appearance appeal-chilling Cir.), (3d Basic, n. 12 F.2d Cataldo, ness.” United States denied, cert. Cir.1987), ("Because defen would not composite initial dants’ sentences resentencing, the due ... be increased re- premised argument Vontsteen’s against protections vindictiveness severe”) (“more increased ceipt of an inapplicable alluded to ... ] [Pearce however, Pearce; proscribed tence Furthermore, here. because arguably 22 was on count the sentence in a sentence than higher could not result increased.3 imposed, could be originally there discussed, we hold the fully As more appeal.”) to an deterrent here; inapplicable Pearce net increase did not receive overall sen- to Vontsteen’s addition And, as an alternative severe”), his sentence.4 (“more being tence not increased has presumption, Vontsteen squarely under does fall case showing apparent actual or made no reasons. For ex- for several other judge. by the trial

Case Details

Case Name: United States v. Gerald Vontsteen, A/K/A Skip Vontsteen

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Aug 17, 1990

Citation: 910 F.2d 187

Docket Number: 89-2745

Court Abbreviation: 5th Cir.