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January 7, 1985


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 be $919,000.

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 loss.

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
  humble opinion.

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 passing sentence.


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:

(a) Sentence.

    (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 ...

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