The opinion of the court was delivered by: Bua, District Judge.
Before the Court is defendant's motion, pursuant to
28 U.S.C. § 2255, the Fifth and Sixth Amendments to the United
States Constitution, and Fed.R.Crim.P. 32, to vacate the
sentence imposed by the Court on December 22, 1983, to allow
the defendant access to the presentence investigation report
for the purpose of correcting numerous errors and misstatements
therein, and setting this matter for a new sentencing hearing
in accordance with the terms of Rule 32. For the reasons stated
herein, defendant's motion to vacate his sentence is denied.
This habeas corpus petition challenges defendant's sentence,
imposed after he pled guilty to two counts charging him with
mail fraud in violation of 18 U.S.C. § 1341. Defendant Richard
Johnson pled guilty on November 17, 1983 to two counts of
drawing up 125 fraudulent loan contracts out of a potential
number in excess of 1,100 loan contracts. The amount advanced
on the 125 fraudulent loan contracts was in excess of $135,000.
The company defrauded was Walter E. Heller & Company. Heller
indicated that its loss in this case is $919,000.
The presentence report indicated that defendant was
previously arrested eight times and served one year in a
pretrial diversion program for bank fraud and embezzlement.
The report also indicated that defendant was convicted of
contempt of court for which he served ten days in jail.
Finally, the report indicated that Heller claimed its loss to
At the sentencing proceeding, the defense counsel referred
to the presentence report several times. He mentioned the
report when describing the situation of the co-defendant Vicky
Lynn Johnson. He complimented the U.S. Probation Officer for
a thorough report. He referred to the report when he asked for
leniency for the defendant in light of the fact that the
victim is a corporation. Finally, he referred to the report
when he questioned the accuracy of Heller's claimed $919,000
The defendant made a short statement saying that he was
sorry about what he had done. The government then raised an
incident not contained in the presentence report. The incident
involved an apparent fraudulent loan. However, in response to
the defense counsel's objections regarding this incident, the
Court informed the defense counsel that this "new development
does not add to or detract from the court's evaluation of what
the proper sentence in this case will be in connection with
Mr. Johnson's case."
The government recommended "substantial incarceration." The
Court sentenced Johnson to three years imprisonment on Count
I to be followed by three years probation on Count II. In
addition, defendant was fined the maximum fine of one thousand
dollars on each count. During the sentencing hearing, the
Court made these comments:
The court has always adhered to the view in most
cases that everyone is entitled to a second
chance. Mr. Johnson had his chance. He had his
second chance. And he proved to the court and
apparently to the government that he is not a
proper candidate for probation. Albeit he did
plead guilty, I also agree with the government
Mr. Johnson shows utterly no remorse whatever for
his actions. I think to grant probation in Mr.
Johnson's case would be a mockery. I don't know
how else to characterize it. Not only did he
engage in this scheme after he had been treated
with compassion by the U.S. Attorney and after
the court had treated him compassionately, he
involved his family members, and that requires
some period of incarceration in the court's
Defendant asserts that the presentence report contains a
laundry list of previous arrests without explanation which
tends to unjustly portray him as a disruptive person with an
extensive criminal background. He also argues that Heller's
claimed loss of $919,000 contained in the report was factually
inaccurate, and that the report does not mention that the
entire $135,000 loss from the 125 fraudulent loan contracts
was paid back to Heller.
Defendant makes two arguments in this habeas corpus
petition: first, that the Court failed to assure him access to
his presentence report and an opportunity to dispute material
factual inaccuracies contained in the report, and second, that
the Court unknowingly relied on that false information in
Convicted defendants, including those who plead guilty, have
a due process right to a fair sentencing procedure which
includes the right to be sentenced on the basis of accurate
information. United States v. Tucker, 404 U.S. 443, 447, 92
S.Ct. 589, 591, 30 L.Ed.2d 592 (1972); United States ex rel.
Welch v. Lane, 738 F.2d 863, 864 (7th Cir. 1984). A sentence
must be set aside where the defendant can demonstrate that
false information formed part of the basis for the sentence.
The defendant must show first, that the information before the
sentencing court was false, and, second, that the court relied
on false information in passing sentence. United States v.
Harris, 558 F.2d 366, 375 (7th Cir. 1977).
Several provisions of Rule 32(c) of the Federal Rules of
Criminal Procedure are intended to protect that due process
right by ensuring that the sentence is fair and based on
accurate information. Changes amending this rule with respect
to presentence investigations became effective August 1, 1983.
Three of the amended subsections clarify considerably the role
of the sentencing judge in assuring that the defendant and
defense counsel have a meaningful opportunity to review the
presentence report and to contest alleged factual
inaccuracies. These sections read as follows:
(1) Imposition of Sentence. Sentence shall be
imposed without unreasonable delay. Before
imposing sentence the court shall
(A) determine that the defendant and his
counsel have had the opportunity to read and
discuss the presentence ...