                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 11a0791n.06
                                                                                          FILED
                                            No. 08-5487                              Nov 28, 2011
                             UNITED STATES COURT OF APPEALS                    LEONARD GREEN, Clerk
                                  FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA                                  )
                                                          )        ON APPEAL FROM THE
       Plaintiff-Appellee,                                )        UNITED STATES DISTRICT
                                                          )        COURT FOR THE EASTERN
v.                                                        )        DISTRICT OF KENTUCKY
                                                          )
PEGGY L. VANHOOSE                                         )                            OPINION
                                                          )
       Defendant-Appellant.                               )



BEFORE:         DAUGHTREY, COLE, and ROGERS, Circuit Judges.

       COLE, Circuit Judge. Peggy Vanhoose appeals her sentence imposed following a jury trial

for three counts of theft from a program receiving federal funds. She argues that the district court

failed to comply with Federal Rule of Criminal Procedure 32(i)(3) because it summarily adopted the

factual findings of the presentence report and, in doing so, erred in calculating the amount of loss.

Because the district court did not fully comply with Rule 32, and because we cannot conclusively

determine that any error was harmless, we VACATE Vanhoose’s sentence and REMAND for

resentencing.

                                        I. BACKGROUND

       Vanhoose, along with co-defendant Shelby Coleman, worked for the Johnson County Board

of Education. From 1993 to 2005, Vanhoose served as its finance director, overseeing the Board’s

budget and finances. When the new superintendent, Stephen Trimble, sought to get a grasp on the
No. 08-5487
United States v. Vanhoose

Board’s finances, he requested salary and personnel records from Vanhoose. After comparing the

records to those of the Kentucky Department of Education, Trimble realized that Vanhoose received

both a salary and retirement pay, and that she earned far more than the Board’s records reflected.

        On April 19, 2007, a federal grand jury indicted Vanhoose on four counts of stealing federal

funds in violation of 18 U.S.C. § 666(a)(l)(A). Vanhoose was jointly indicted with her former

coworker, Coleman, on counts one and two. On July 3, 2007, the district court granted the

defendants’ motion to sever. Vanhoose pleaded not guilty, and after a five day jury trial, a jury

convicted her on three of the four counts.

        The presentence report (PSR) assessed the applicable loss amount at $468,916.62, resulting

in an offense level increase of fourteen points. Vanhoose lodged a number of objections to the PSR,

including challenges to the sufficiency of the evidence underlying the sentence, the application of

various aggravating and mitigating factors, and the calculations in the PSR. The district court

overruled these objections, and, adopting the PSR’s recommendation, sentenced Vanhoose to 63

months in prison, supervised release for a period of three years, and restitution in the amount of

$465,384.12. This appeal followed.

                                           II. ANALYSIS

        Vanhoose first contends that the district court failed to comply with Rule 32(i)(3) of the

Federal Rules of Criminal Procedure because it summarily adopted the factual findings of the PSR

as the basis for its determination on the amount of loss. Rule 32(i)(3) requires that at sentencing, the

district court “must--for any disputed portion of the presentence report or other controverted matter--

rule on the dispute or determine that a ruling is unnecessary . . . and must append a copy of the

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court’s determinations [to the PSR] . . . .” Fed. R. Crim. P. 32(i)(3)(B-C). This rule must be

followed to the letter. See United States v. Howell, 412 F. App’x. 794, 795 (6th Cir. 2011) (citing

United States v. White, 492 F.3d 380, 415 (6th Cir. 2007)).

        As a threshold matter, we must first determine whether Vanhoose triggered Rule 32. At

sentencing, a district court is required to engage in independent fact-finding only when the defendant

actively disputes a PSR recommendation. United States v. Hurst, 228 F.3d 751, 760 (6th Cir. 2000).

During the hearing, Vanhoose’s attorney stated “a lot of the objections go to the fact that [the

probation officer] went beyond, I feel, the scope of preparing this report . . . .” He later specifically

requested an evidentiary hearing to determine the amount of loss for the guidelines calculation and

contested the calculation of the retirement benefits that Vanhoose allegedly misappropriated. These

statements show that the district court was put on notice that Vanhoose contested the calculations

used in the PSR, and that Rule 32’s requirements were triggered.

        We have reiterated that the rule’s purpose is “to ensure that sentencing is based on reliable

facts found by the court itself after deliberation, and thus, the district court cannot summarily adopt

the factual findings in the [PSR] or simply declare that the facts are supported by a preponderance

of the evidence.” United States v. Nelson, 356 F.3d 719, 722 (6th Cir. 2004) (internal quotation

marks and citations omitted). “The law in this circuit clearly prohibits a court faced with a dispute

over sentencing factors from adopting the factual findings of the [PSR] without making factual

determinations of its own.” United States v. Monus, 128 F.3d 376, 396 (6th Cir. 1997). When

challenged, the sentencing court must “explain how it calculated the amount of loss or respond to



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the defendant’s specific factual objections to the methods of calculation included in the [PSR].” Id.

at 397.

          In this case, the PSR indicated that the probation officer who authored the report had

“independently determined the . . . losses as to the instant offense,” relying on “case reports,” school

board records and reports, and a “conferr[al] with the FBI case agent.” In response to Vanhoose’s

specific factual objections, the district court stated:

          I respect your right to have some disagreement with some of those facts that had been
          presented in the presentence report, but I’ve read it very, very carefully. I’ve spent
          a lot of time with these reports, and I do not find that they’re not fairly based on
          investigatory records. They’re drawing from a number of different sources.

In an otherwise lengthy and thorough sentencing, this statement was the extent of the district court’s

discussion on the calculation methods used in the PSR.

          A district court’s pronouncement that it reviewed the PSR and is persuaded by its analysis

is not enough to comport with the rule’s requirements. “Reliance on the PSR is insufficient when

the facts are in dispute. Rather, the district court must actually find facts, and it must do so by a

preponderance of the evidence.” White, 492 F.3d at 416 (internal quotation marks and citations

omitted) (emphasis in original). In Monus, this Court held that the district court had failed to uphold

its burden under the rule when it made a finding of fact as to the amount of loss, but failed to

calculate the loss itself, relying instead on the PSR’s findings alone. 128 F.3d at 396-97. Here, the

government argues that the district court “carefully considered the methodology” used in the PSR’s

calculations, and that “careful consideration” is all that this Court requires, citing United States v.

Jackson, 25 F.3d 327, 330 (6th Cir. 1994), to support this proposition. But, Jackson is not helpful


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in this case, because the objection there was based generally on the sufficiency of the evidence

underlying the sentencing enhancement, not on whether the district court erred in summarily

adopting the PSR and thereby violating Rule 32. Indeed, there is no mention of Rule 32 in Jackson.

       The district court erred when it adopted the PSR’s loss calculations “without making factual

determinations of its own.” Monus, 128 F.3d at 396. Moreover, the district court should have

explained its calculation methods, see Nelson, 356 F.3d at 722–23, given that there was little in the

PSR on which the district court could have relied in making its own findings.

       The government argues that Vanhoose’s reliance on Nelson is misplaced, because the

defendant in Nelson provided alternative methods of calculating loss, whereas Vanhoose merely

lodged general factual objections. While true, this is a distinction without a difference. In Nelson,

we stated that compliance with Rule 32 is necessary “when sentencing issues are contested by the

parties.” 356 F.3d 719, 722. We did not say that compliance is necessary only when an alternative

calculation scheme is submitted to the district court, nor does the government point to any case in

which that distinction is recognized as material.

       Without adequate findings, the district court leaves this Court with an incomplete record,

frustrating Rule 32’s purpose of helping to create a clear record for appellate review. See United

States v. Tackett, 113 F.3d 603, 614 (6th Cir. 1997) (“This strict requirement . . . provides a clear

record for appellate courts, prison officials, and administrative agencies who may later be involved

in the case.”). “If a district court fails to make a factual finding, this court must remand for

resentencing.” United States v. Edgecomb, 910 F.2d 1309, 1313 (6th Cir. 1990).



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       Moreover, we cannot conclusively say that the error in this case was harmless. The PSR

recommended a 14-level increase because the loss sustained totaled $468,912.62. But, if the loss

were $400,000 or less, there would be only a 12-level increase. U.S.S.G. § 2B1.1(b)(1)(G). This

situation is distinct from that in Parrott, because there is no evidence that Vanhoose has separately

conceded that the amount of loss mirrors what was calculated in the PSR.

       Vacating Vanhoose’s sentence does not mean that the calculations in the PSR should be

overlooked, only that the district court must engage in independent fact-finding in order to support

a valid sentence. Moreover, all that is necessary is a “reasonable estimate of the loss.” White, 492

F.3d at 416. At that point, were Vanhoose to challenge the sentence imposed by the district court,

she would bear a “heavy burden of persuading this Court that the evaluation of the loss was not only

inaccurate, but was outside the realm of permissible computations.” Jackson, 25 F.3d at 330.

       We find no merit to Vanhoose’s other claims. Vanhoose argues that the district court erred

in enhancing her sentence for obstruction of justice, but the record shows that the district court

“pointed to specific examples” of false statements Vanhoose made in her trial testimony. United

States v. Maliszewski, 161 F.3d 992, 1030 (6th Cir. 1998). They included a number of instances of

false testimony by Vanhoose, mostly surrounding her son’s employment status with the Board of

Education. Vanhoose fails to provide any argument as to why a finding that those statements

obstruct justice is clearly erroneous. Rather, all of her argumentation is on a separate piece of

evidence—a letter by the former Board superintendent—on which the district court did not

ultimately rest its decision. In fact, the district court specifically readdressed this issue and

articulated additional reasons for finding that Vanhoose obstructed justice when it stated, “I think

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I need to create a more complete record . . . as it relates to Ms. Vanhoose . . . as it relates to the

obstruction of justice enhancement.” We therefore find no clear error in the district court’s factual

determinations.

       Vanhoose further contends that she was entitled to credit for acceptance of responsibility

under U.S.S.G. § 3E1.1. A district court’s finding on the issue of acceptance of responsibility is

entitled to deference and will be reversed only if clearly erroneous. United States v. Edwards, 272

F.3d 812, 815 (6th Cir. 2001). To be eligible for an acceptance of responsibility credit, a defendant

must accept responsibility as to all counts charged. United States v. Chavis, 296 F.3d 450, 465 (6th

Cir. 2002). The district court denied the two-point credit authorized by U.S.S.G. § 3E1.1 because

Vanhoose perjured herself and hence, implicitly, did not accept responsibility as to all counts.

Because there was no clear error as to the obstruction of justice enhancement, the district court did

not err in denying Vanhoose credit for acceptance of responsibility.

       Finally, Vanhoose argues in the alternative that she received ineffective assistance of counsel

at sentencing. Because our decision requires a remand for resentencing, we need not address this

claim and decline to do so. We note, however, that claims of ineffective assistance of counsel are

more appropriately raised in post-conviction collateral proceedings. See, e.g., United States v.

Bradley, 400 F.3d 459, 461–62 (6th Cir. 2005).

                                        III. CONCLUSION

       For the foregoing reasons, we VACATE the district court’s sentence and REMAND for

resentencing consistent with this opinion.



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