Randall Coonce pled guilty to four counts of mail fraud under 18 U.S.C. § 1341, and received consecutive five-year sentences on Counts I, II, and III, to be followed by five years’ probation on Count IV. After entering his plea, Coonce objected to the content of the Presentence Report (PSR), which contained descriptions of uncharged misconduct. Specifically, the PSR stated that in addition to committing mail fraud, he had participated in a criminal enterprise devoted to defrauding senior citizens by misrepresenting insurance policies as investment vehicles. Coonce moved to have the PSR stricken and redrafted. The court denied the motion. He then moved to withdraw his plea of guilty, alleging that the plea was unknowingly and unintelli-gently made because he did not realize that the uncharged activity of conspiracy or misrepresentation of products could be mentioned in the PSR and considered at sentencing. The court denied this motion as well. On appeal, Coonce alleges that the district court erred: (1) in denying his motions to strike the PSR and withdraw his guilty plea, (2) in placing the burden on him to prove that the PSR was inaccurate, (3) in finding that the PSR was reliable, and (4) in giving vent to its bias against the defendant by giving him excessive, consecutive sentences, disproportionate to those given to other participants in the scheme.
I. BACKGROUND .
From 1983 to 1988, Randall Coonce ran a life insurance agency with offices in Charleston, Illinois and Indianapolis, Indiana. He sold life insurance as well as supervising several, sales agents in the Charleston and Indianapolis offices. Though he sold insurance for several companies, most of the policies he sold were from the Inter-state Assurance Company. Initially, he contracted with Inter-state in 1984, and eventually became its regional marketing general agent, in charge of sales in several midwestern states.
Since 1980, Coonce had also been involved in wagering on sporting events. At first his bets were around $500 per game, but in 1984 his average wager escalated to between $3,000 and $4,000. In early 1986, Coonce was in serious financial difficulty as a result of substantial gambling debts, and to pay them he began to convert clients’ insurance premiums to his own use. For the most part, the scheme worked as follows. As a general rule, Inter-state required initial premium payments on life insurance policies to accompany the customer’s application, and the policy was effective when the application and premium were received. In some cases, however, it accepted applications without premiums, requiring payment when the approved poli *1272 cy was delivered to the customer. Applications processed in this way were known as “C.O.D.” policies, which were not effective until the receipt of the initial premium, after Inter-state had approved the application and sent a policy to the customer. When customers sent their premium checks and applications to Coonce for delivery to Inter-state, he would deposit the check in his own account. Next, he would mark the application “C.O.D.” without telling his client and send it to Inter-state. When the application was approved and returned to Coonce for delivery to the customer, he would forward the premium payment. At first he made payments from his own account, having used the converted funds in the interim to pay his gambling debts. Later on he was unable to keep current on his debts, and he began to pay off the C.O.D. policies with stolen funds of more recent date, “robbing Peter to pay Paul.” On some policies he took the money and never made any payment to Inter-state. Besides this “C.O.D. policy” scam, Coonce also collected annual premium payments from customers without Inter-state’s knowledge or consent, depositing them into his own account. In January of 1988, Coonce told Inter-state of his activities, and the company terminated his contract.
During this same period, Coonce and his agents in Charleston and Indianapolis participated in a scheme to defraud senior citizens. Using a list of senior citizens that Coonce purchased from the National Association of Retired Persons (NARP) as leads, both Coonce and his agents contacted elderly people and convinced them to buy expensive life insurance policies that they misrepresented to be investment programs. The premiums and applications from these senior citizens were mailed to Coonce, who in turn mailed them to. Inter-state, who returned them to Coonce if approved, who did whatever else was necessary to complete his fraudulent scheme. For example, he allowed an agent with a suspended insurance license to use “Randy Coonce” as an alias and continue to sell policies. In other cases the agents found it necessary to promise that interest would be paid on the “investment program” and Coonce went along by sending “interest checks” out of his own business account, perpetuating the agents’ misrepresentation.
After Coonce admitted his misdeeds regarding the C.O.D. policies to Inter-state the company initiated civil proceedings, seeking to recover the premiums he had stolen to pay his debts. Consulting with his attorney, Coonce realized that he might also face criminal charges and had his lawyer contact the United States Attorney to discuss the matter. After reviewing the case the U.S. Attorney called Coonce’s attorney and proposed a plea bargain requiring that Coonce admit that he had conspired with his sales agents to misrepresent insurance policies as investment programs for senior citizens. Coonce denied having been part of a conspiracy or misrepresenting his products, and refused the guilty plea offer. A few months later the government proffered a new plea agreement alleging misrepresentation of products but not conspiracy, which Coonce refused to accept, adamantly denying any misrepresentation. With negotiations at an impasse, the government obtained a thirty-six count indictment, leaving out any charge of conspiracy, but continuing to allege misrepresentation of products. Faced with this Coonce resumed plea negotiations and subsequently agreed to plead guilty to a four-count information alleging mail fraud but not conspiracy or misrepresentation. He further agreed to cooperate with the government in investigating other matters arising out of or related to his conduct. The government, in turn, agreed tó withdraw the indictment so that Coonce would only have to plead guilty to a four-count information. 1 The plea agreement clearly stated that at sentencing the defendant could present evidence mitigating the seri *1273 ousness of his offense, while the government could present evidence in aggravation of his crime. The information Coonce pled guilty to was crafted to include only that conduct occurring before the Federal Sentencing Guidelines took effect, making this a “pre-guidelines” case.
The Probation Office then prepared the PSR, which gave a detailed chapter and verse description of the entire scheme to defraud senior citizens through misrepresentation of the insurance policies as investments. Coonce objected to this and filed a “Motion to Strike Presentence Report and for Order Requiring Redrafting of the Presentence Report.” Coonce’s argument was that he pled guilty to neither conspiracy nor misrepresentation, and thus was of the opinion that it could not be considered in his sentencing. The court denied the motion, prompting Coonce to move to withdraw his plea as being unintel-ligently given because he did not know that the uncharged conduct could be used against him. This motion was also denied. Next, Coonce filed a pleading pursuant to Fed.R.Crim.P. 32, 2 alleging that the PSR contained factual inaccuracies. Specifically, he claimed that the PSR was inaccurate when it described his behavior as a “criminal enterprise” that misrepresented products and targeted senior citizens. The court considered these charges at the close of the sentencing hearing. As to the PSR’s use of the term “criminal enterprise” to describe Coonce’s scheme, the court said that it “need make no finding about the factual accuracy of it since it is an opinion.” Sentencing Tr. at 173. Importantly, however, the court also made statements indicating that it agreed with this opinion: “The probation officer’s assessment is correct. I agree with the statements that the probation officer makes about the defendant and the way he should be viewed by the court.” Sentencing Tr. at 175. Next the court concluded that the scheme targeted senior citizens, taking account of the fact that the defendant obtained a customer list from NARP and directed his sales program at older people. Further, the court took judicial notice of testimony from the guilty plea proceedings of Coonce’s agents, who stated that Coonce actively participated in their scheme to bilk the elderly, providing the list of names, mailing the applications to Inter-state, and allowing an agent with a suspended insurance license to use his (Coonce’s) name as an alias. Finally, the court held that the allegations of misrepresentation were justified in light of testimony by case agents, statements of the victims, and the defendant’s history of shady dealings. 3 Coonce testified at the sentencing hearing, denying any conspiracy or misrepresentation, but the court found his testimony unbelievable. Having found the PSR was accurate and reliable, the court imposed its sentence of three consecutive five-year terms followed by five years’ probation.
II. ISSUES
Coonce raises five main issues on appeal: (1) Whether it was error to deny his motion to strike the PSR; (2) whether the court should have granted his motion to withdraw his guilty plea; (3) whether the court ever made an express finding that Coonce had headed a conspiracy before using that against him in sentencing; (4) whether Coonce or the government should have had the burden of proving the accuracy or inaccuracy of statements in the PSR, and if *1274 Coonce did, whether he satisfied that burden; and (5) whether the trial court abused its discretion by giving Coonce a longer sentence than his co-conspirators, by imposing consecutive sentences even though all of the fraud counts arose from the same course of conduct, and by giving an excessive sentence enhanced by a preconceived bias.
III. DISCUSSION
A. Motion to Strike Presentence Report
After reading the PSR the defendant made a motion requesting the court to strike the report and order that it be redrafted. He was upset that the prosecution’s version of the offense, included in the PSR, gave a detailed description of the alleged conspiracy to defraud senior citizens. Further, in the “Evaluation” section of the report the probation officer noted the prosecution’s description of the scheme and wrote that “Randy Coonce was thus the organizer of this criminal enterprise. Criminal enterprise is an appropriate term for the illegal activity perpetrated by Randall Coonce.” Presentence Report, Appellant’s Br., Addendum II, at 21. The defendant objected to these statements on the ground that he had only pled guilty to mail fraud, not conspiracy or misrepresentation of products, and so did not believe that information relating to uncharged conduct could be used against him at sentencing. He also reminded the court that he had persistently denied any involvement in a conspiracy or a scheme to misrepresent products, and had accepted the plea bargain only because he believed it would be silent as to any such charges. Even the indictment the government filed with the court contained no charge of conspiracy, he continued, and so any mention of that charge in the PSR was unfair and came as a complete surprise. The trial court denied the motion, and Coonce now claims that this denial was erroneous and that the court violated his Fifth Amendment due process rights by relying on false or unreliable information in sentencing.
This is a pre-Sentencing Guidelines case. As such, the sentencing court was allowed to consider the defendant’s
actual
conduct, as well as anything pertaining to the crimes charged.
United States v. Castellanos,
The- sentencing stage of the trial is one of the most important parts of the criminal process. In order for a judge to be well advised of all the facts surrounding the defendant’s background, and particularly in view of the judge’s obligation to the general public, as well as to the defendant, to be fair, reasonable and just, it is imperative that he be allowed to draw upon a wealth of information concerning the defendant’s background, from his date of birth up to and including the moment of sentencing.... In order to render justice to all the judge must be able to impress upon a defendant through the expansive contents of an all encompassing sentencing report that we are a country of laws and not men. The criminal must learn that with every cherished right he enjoys he also assumes a corresponding obligation to live according to the law of the land. Our laws are for the protection of all mankind and not just the criminal. Thus, if the defendant has displayed a propensity toward criminal activity over a period of years and *1275 has not learned from his past mistakes and transgressions of the law it is important that the judge take these matters into consideration including those eases where the crimes may have been nolle prosequi or read into the record and considered by the judge in sentencing the defendant for another crime, but relieving the defendant of a formal judgment of conviction on the particular crimes read into the record.
United States v. Madison,
Despite these cases and the statute, Coonce relies on a policy statement set out in the United States Sentencing Commission’s Guidelines Manual in Chapter 1, Part A(4)(a) (1991). This section discusses the Commission’s struggle in deciding whether to adopt a “real offense” system of the type used before the guidelines took effect, or a “charge system,” which excludes consideration of conduct that is not an element of the offense. Coonce places great weight on the Commission’s statement that it has “moved closer to a charge offense system.” Id. Thus, he argues, the court should have stricken all portions of the PSR referring to the alleged conspiracy or misrepresentation, because he was not charged with those crimes.
This argument is without merit and thus is entitled to no further elucidation for all of the crimes occurred before the effective date of the Sentencing Guidelines, and so the commentary of the Sentencing Commission is inapplicable. In fact, we find Coonce’s argument to be disingenuous, as he knowingly entered a plea agreement specifically tailored to avoid the Sentencing Guidelines. Thus, the motion to strike the parts of the PSR referring to uncharged crimes was properly denied.
Alternatively, Coonce argues that the information regarding the conspiracy and misrepresentation was either false or unreliable, and thus when the court considered that information it violated his Fifth Amendment due process rights. There is no doubt that a criminal defendant has a due process right to have the court consider only accurate information when imposing sentence, and that this right may be violated when the court considers information which is inaccurate.
Tucker,
B. Withdrawal of the Guilty Plea
After the court denied his motion to strike the PSR, Coonce moved to withdraw his guilty plea. He alleged that denial of the motion to strike rendered his plea unknowing and unintelligent because he never expected that the conspiracy and misrepresentation allegations could be used against him; had he known they could, he would not have pled guilty. We review the court’s denial of Coonce’s motion for an abuse of discretion.
United States v. McFarland,
Federal Rule of Criminal Procedure 32(d) allows a defendant to withdraw a plea before sentencing for “any fair and just reason.” The defendant bears the burden of proving such a reason exists.
See
Fed.R.Crim.P. 32(d);
United States v.
*1276
Knorr,
Given the great care with which guilty pleas are now taken — including placing the plea agreement on the record, making full inquiries into the voluntariness of the plea, advising the defendant in detail concerning his rights and the consequences of his plea, determining that the defendant understands these matters, and determining that the plea is accurate — there is no reason to view pleas so taken as merely “tentative,” subject to withdrawal before sentence whenever the government cannot establish prejudice.
W. LaFave & J. Israel,
Criminal Procedure,
§ 20.5(a), at 812 (1985);
see also United States v. Fountain, 111
F.2d 351, 358 (7th Cir.1985) (no need for hearing on motion to withdraw guilty plea where inquiries at Rule 11 hearing satisfied court that plea was voluntary and defendant did nothing to cast doubt on that conclusion). We agree with the analysis that, absent some proof of changed circumstances or a question concerning the validity of the plea, a thorough Rule 11 hearing weighs against a defendant’s attempt to withdraw a plea.
Cf. Knorr,
Coonee, however, contends that circumstances changed when the court denied his motion to strike the PSR. He argues that his inexperience led him to believe that evidence of uncharged conduct could not be used in his sentencing, as evidenced by his timely motion to withdraw his plea upon learning that such information could be used. We reject this claim. Coonee had a full Rule 11 hearing and the court questioned him thoroughly on his understanding of the plea agreement. Paragraph 3 of that agreement provides: “The defendant understands and agrees that the plea in this matter is a completely open plea and
at the time of sentencing the government will be free to present any relevant evidence in aggravation which it deems appropriate.”
Appellant’s Appendix at 20 (emphasis added). Defendant signed this agreement and stated before the court during the Rule 11 hearing that he had read, understood, and approved of it. His claim that he understood “relevant evidence” to mean only such evidence as would be admissible under Federal Rule of Evidence 401 is unavailing. As we mentioned above, pre-guidelines sentencing procedures did not bar a court from hearing any relevant evidence, even if it would be inadmissible at trial.
E.g. Johnson,
*1277
Resourcefully, Coonce claims the plea was unintelligent on another ground — that he did not understand the nature of the charge against him. Rule 11 requires a court to insure that a defendant understands the nature of the charge before accepting a plea, Fed.R.Crim.P. 11(c)(1), and we are in agreement that a defendant who did not understand the charge pled to should be allowed to withdraw a plea.
See Henderson v. Morgan,
C. Factual Finding as to Conspiracy
After his motion to withdraw the guilty plea was denied, the defendant alleged that portions of the PSR were factually inaccurate. When a defendant makes such claims Federal Rule of Criminal Procedure 32(c)(3)(D) requires the court to either (1) make a finding as to the allegation, or (2) determine that no finding is necessary because the challénged fact will not be taken into account in sentencing. This rule serves a dual purpose. First, it protects a defendant’s due process right to be sentenced only on the basis of accurate information.
United States v. Canino,
In his pleading entitled “Allegations of Factual Inaccuracies Contained Under Pre-Sentence Report” the defendant denied that he had engaged in or organized a conspiracy or criminal enterprise with his agents. He disagreed with two portions of the PSR on this point: the prosecution’s version of the offense, which described the alleged conspiracy to defraud the elderly, and the probation officer’s evaluation, which said that Coonce had engaged in a criminal enterprise. Considering the defendant’s claim that these descriptions were false, the court focused on the probation officer’s use of the term “criminal enterprise.” The court did not make a specific finding as to the accuracy of the term, but neither did it say that it would not consider the alleged criminal enterprise at sentencing. Rather, it wrote:
The other points that are raised about inaccuracies in the Pre-Sentence Report are directed in some part not to factual
*1278 assertions. For example, the defendant disagrees with the probation officer’s assessment at page 21 of the report; that is, the probation officer’s opinion and evaluation of what the defendant’s conduct has been. The Court need make no finding about the factual accuracy of it since it is an opinion.
Sentencing Tr. at 172-73. The “assessment at page 21” was the probation officer’s conclusion that Coonce had headed a criminal enterprise. Yet even though the court did not make an explicit finding that the defendant led a conspiracy or criminal enterprise, this does not necessarily mean, or even imply, that it failed to comply with Rule 32. Explicit findings are generally required, but there are no “magic words” a court must use; so long as it actually resolves the disputed issues on the record, a sentencing court fulfills the purposes of Rule 32.
Canino,
The court in the instant case plainly relied on the allegations of conspiracy in sentencing Coonce, stating that “When one considers the enormity of the scheme and [the loss it caused] and that Mr. Coonce was the facilitator, without him, the scheme wouldn’t have existed. He was the center of it.” Sentencing Tr. at 176 (emphasis added). Though this use of the conspiracy allegation would be error if the court had not made a finding that the conspiracy existed, the record is clear that a conspiracy existed and furthermore that the court made such a finding. Having noted that it was considering the defendant’s role as a conspirator or co-conspirator, the court went on to explain why it felt comfortable doing so. “If you look at [Coonce’s agent] Robison’s grand jury testimony, which I only glanced at, you find repeated over and over again that it all went back through Randy Coonce, it all went back through Mr. Coonce. He was the conduit, if you will, for the scheme.” Sentencing Tr. at 176; Order on Final Disposition, Appellant’s Appendix, at 96 (emphasis added). Robison and other agents who worked for Coonce had all pled guilty to mail fraud in connection with the conspiracy to defraud senior citizens. The quoted statement clearly establishes that the court believed that Coonce was an active participant in the alleged conspiracy.
This is analogous to Montoya, where the court not only resolved the issue on the record, but included its findings in the order appended to the PSR. Given such evidence, we hold that the district court made the required factual findings and fully complied with the purpose of Rule 32. The record is clear that the trial court was not misled and relied only upon accurate information when imposing sentence upon the defendant. 4
D. Burden of Proof Under Rule 32(c)(3)(D)
Coonce next alleges that the district court erred when imposing upon him
*1279
the burden of proof regarding the factual inaccuracy of the PSR. He bases his argument on the thin reed of
United States v. Lueddeke,
We begin our analysis of these points by noting that “so long as the information which the sentencing judge considers has sufficient indicia of reliability to support its probable accuracy, the information may properly be taken into áccount in passing sentence.” United States v. Miller,891 F.2d 1265 , 1270 (7th Cir.1989), quoting United States v. Marshall,519 F.Supp. 751 , 754 (D.Wis.1981), aff'd,719 F.2d 887 (7th Cir.1983).
Id.
at 234 (emphasis added). The case does not say anything about whether the prosecutor or the defendant has the burden of either production or proof. Nevertheless, Coonce maintains that the only logical interpretation of the quoted language is that the prosecutor has the burden of proof. As the party offering the information, he argues, the prosecutor must show it bears “sufficient indicia of reliability.” The government responds to this argument by citing
United States v. Gaddy,
Though our cases have not explicitly held so, they have implied that a defendant challenging a PSR has the burden of producing evidence bringing the accuracy of the report into question. In
Canino
we upheld a court’s decision to accept the prosecutor’s version of the PSR unless the defendant could produce evidence other than his own testimony in support of his claims.
It is generally accepted that ... the defendant must be afforded an opportunity to rebut or explain the “facts” which are in the presentence report or are otherwise brought to the attention of the judge_ As to just what is required of the defendant in this connection, the general rule is that when matters are contained in a report, the defendant has an affirmative duty to present evidence showing the inaccuracies contained in the report.
W. LaFave & J. Israel, § 25.1(d), at 929 (1985) (emphasis added). It may be that in the case of a naked or unsupported charge a defendant need only deny the allegation.
Id.
at 930;
see also United States ex rel. Welch v. Lane,
Coonce’s burden argument is partially correct, however, in that he should not bear the final burden of persuasion. That rests with the prosecution (assuming the defendant first meets the burden of production). As LaFave & Israel,
supra,
states, “[T]he burden of production is properly placed upon the defendant. But when it has been met by a showing of evidence that the •challenged ‘fact’ is untrue, then a balancing of the relevant interests requires that the burden of persuasion regarding that fact be placed on the prosecution.” W. LaFave & J. Israel, § 25.1(d), at 930. We believe that this shifting of the burden is the proper way to accommodate the due process concern that only reliable evidence be used when sentencing a defendant.
See United States v. Lee,
In sum, the following procedure may be used to insure the accuracy of the facts used at sentencing. First, the defendant must challenge the facts in the PSR (or other facts the court might consider) as being unreliable or incorrect. Having done so, and assuming the facts as presented bear sufficient indicia of reliability, the defendant must carry the burden of presenting some evidence beyond a mere denial calling the reliability or correctness of the alleged facts into question. 5 If the defendant meets this burden of production, the burden of persuasion then shifts back to the prosecution, who in turn must convince the court that the facts presented by the government are actually true. In the case at bar, the court properly placed the initial burden to challenge the accuracy of the PSR on Coonce, giving him every opportunity to make and support his claims. We next address whether he met that burden.
E. Reliability of the Evidence
Coonce claims that, regardless of who bore the burden of proving the reliability of challenged facts, the charges of criminal enterprise and misrepresentation of product lacked “sufficient indicia of reliability” in the first place. Alternatively, he alleges that he met his burden of undermining confidence in the alleged facts. Specifically, he complains that the court refused to allow him to examine the probation officer who prepared the PSR. Coonce believed that two of the statements relied on by the officer came from victims of his agents’ scheme, and were not even his customers. The court refused Coonce's request, finding that the report adequately explained the officer’s conclusions, and on that basis the court could decide if the conclusions were correct. The court heard testimony from Coonce, who denied misrepresenting products or engaging in a conspiracy to do so, and a postal inspector, who described Coonce’s involvement with his agents in misrepresenting products. It also considered the statements of the co-conspirators and victims of the scheme, along with the detailed allegations in the PSR. Based on the totality of the record, the court properly found Coonce was not credible and that he had actively engaged in a scheme to misrepresent products and targeted that scheme at senior citizens. Sentencing Tr. at 173-74.
Though Coonce claims that the evidence did not indicate the PSR’s allegations of conspiracy and misrepresentation were true, we review a sentencing court’s factual determinations deferentially, reversing them only if they were clearly erroneous.
See United States v. Jewel,
One of Coonce’s other allegations must be addressed in more detail. As noted above, the court took judicial notice of statements made by Coonce’s agents at their respective guilty plea hearings. He argues that he was deprived of due process when the court used the statements against him without giving him an opportunity to challenge their accuracy. As far as it goes this argument is correct; defendants do enjoy a due process right to challenge evidence from other trials when it is used against them.
[Ejvidence presented at another trial may not — without more — be used to fashion a defendant’s sentence if the defendant objects. In such a case, where the defendant has not had the opportunity to rebut the evidence or generally cast doubt upon its reliability, he must be afforded that opportunity.
Castellanos,
F. Length of Sentence
Finally, the defendant makes several allegations of error regarding the length of his sentence. He claims (1) that the sentence was disproportionate in comparison to his agents’, (2) that the court erred in imposing consecutive sentences on counts arising from a single scheme, and (3) that *1282 the sentence was excessive and reflected the court’s preconceived bias.
1. Proportionality
The first claim is that the sentence was disproportionate when compared to those received by the agents. Coonee received three consecutive five-year terms followed by five years of probation. His agents received varying punishments for their role in the conspiracy: Robison received five years’ jail time, five years’ probation, and was ordered to pay $6,000 restitution; Chandler received thirty-three months' imprisonment, three years’ supervised release, and had to pay $2,100 restitution; Perry received ten months in jail, five years’ probation, and 1,000 hours of community service; Roach received five years’ probation and had to pay $534 restitution.
Solem v. Helm,
The thrust of the defendant’s argument, however, is directed at the sentences received by his agents, which were all significantly shorter than his. Comparison of sentences is a matter of discretionary line-drawing, carried out on a case-by-case basis.
Id.
at 294-95,
2. Consecutive Sentences
Coonee further argues for a “bargain basement” procedure in the criminal justice system, contending that concurrent, not consecutive, sentences are the proper penalty when a defendant is convicted on multiple counts of mail fraud arising from a single scheme or course of conduct.
See
*1283
United States v. Moss,
Although this court has recommended use of concurrent terms of imprisonment for mail fraud convictions when a multiple count indictment involves a single scheme or course of conduct, we nonetheless have refused to hold that imposition of consecutive sentences, even when each of the separate offenses arose from a single concerted plan to defraud, constituted an abuse of discretion.... “It is well settled that each use of the mails is a separate offense under the mail fraud statute, notwithstanding the fact that the defendant may have been engaged in one fraudulent scheme.”
3. Bias
Coonce’s last claim has two wrinkles. First, that his sentence should be reduced because it is excessive, and excessive sentences disserve society. This claim fails because we have already rejected its premise; by finding the sentence was not disproportionate under Solem we also found that it was not excessive. Accordingly, it could not injure society. Second, the defendant alleges that Judge Baker had a preconceived bias towards him, which he unleashed in imposing sentence. This claim rests on the court’s discussion of insurance policies. Judge Baker stated that “Anybody who knows anything about investments knows that [life insurance] is a bad investment.” Sentencing Tr. at 25. Coonce also perceives bias in the court’s refusing to allow him to examine the probation officer who prepared the PSR.
As to the court’s bias against life insurance, Judge Baker made a concerted, and convincing, effort to remove any perception of bias. Before examination of witnesses began, the following colloquy took place between Coonce’s attorney and the court:
Mr. Ryan: I have a feeling, though, from your Honor’s statements that your Hon- or feels that insurance is a bad investment.
The Court: No. It provides [an] immediate estate, it provides an estate liquidity for estate planning purposes; but if you’re looking to make money, don’t buy insurance. That’s my plain flat statement.
Sentencing Tr. at 26. Later, before passing on the disputed facts, the judge made another effort to clarify his position.
The Court: Something else I should make clear. I thought I did before. I don’t think insurance, life insurance, is bad. Life insurance serves a very real purpose for many people. If you’re buying life insurance for an investment to make money, you better go talk to an investment counselor. That’s my point about that;
Id.
at 170. The test for whether a trial court is biased is objective.
See Union Carbide Corp. v. United States Cutting Service, Inc.,
As to the other claim of bias rooted in the court’s refusal to put the probation officer on the stand, we fail to see how this shows prejudice against the defendant. Probation officers are appointed by and serve the court, 18 U.S.C. § 3602, and it is entitled to rely on the reasoning and conclusions in their reports, subject to defendants’ challenges under Rule 32. Coonce wanted to cross-examine the probation officer as to his (Coonce’s) relationship with the two victims the officer interviewed. The probation officer, however, told the court that he had not relied on the victims’ statements in reaching his conclusion. Sentencing Tr. at 117. Thus any cross-examination on this point would have been meaningless, and Coonce was not injured by what he refers to as bias.
Cf. United States v. Barry,
CONCLUSION
For the reasons stated, the sentence imposed by the district court is
Affirmed.
Notes
. Federal Rule of Criminal Procedure 7(a) requires the United States to obtain an indictment where the offense charged may be punished by death or imprisonment for a term exceeding one year or at hard labor. Such offenses may be prosecuted by an information if the defendant waives prosecution by indictment. Fed. R.Crim.P. 7(b). Coonce waived the right when accepting the plea agreement. Plea Agreement, Appellant’s Appendix at 20; R. Doc. 1.
. Because this is a pre-guidelines case, all references to Fed.R.Crim.P. 32 are to the form of the Rule applicable to offenses committed prior to November 1, 1987 (the effective date of the Sentencing Guidelines). As the Rule is used in this case, however, there is no substantive difference between the former version and the Rule in effect today.
. The PSR revealed that in 1985 the Illinois Department of Insurance entered a order revoking Coonce’s insurance license due to charges that he had misrepresented insurance policies and engaged in fraudulent business activities. He regained his license a year later after agreeing to a Stipulation and Consent Order with the Department and paying a fine and agreeing to abide by conditions designed to prevent future misrepresentations or fraud. Presentence Report, Appellant’s Br., Addendum II, at 3. Additionally, three witnesses testified as to a new fraudulent scheme Coonce had masterminded after he went out of the insurance business in 1988. Sentencing Tr. at 175.
. We note also that the statement we rely on as proof of the court's factual finding was included in the "Order on Final Disposition” attached to the PSR. Thus the second purpose of Rule 32, providing an accurate record for appellate courts and administrative agencies, has been satisfied.
. We note that when facts are plainly unreliable or incorrect a court may ignore them without a prompting objection from the defendant.
. Robison had “a significant criminal history involving schemes to defraud." Appellant’s Br. at 29. Chandler's criminal history included a bank robbery and a "jailbreak.” Id. at 31. Roach also had a "significant criminal history.” Appellee’s Br. at 29.
. We also note that if Coonce was seriously concerned about the court's bias he should have sought to have Judge Baker removed under 28 U.S.C. § 144 by filing an affidavit stating the reasons for his fears. That he did not lends support to our holding and suggests that dissatisfaction with the judge came "after the fact.”