Argued and Submitted Oct. 8, 2013.
[Copyrighted Material Omitted]
Chad Wright (argued), Wright Legal, P.C., Helena, MT, for Defendant-Appellant.
Kelly A. Zusman (argued), Assistant United States Attorney, United States Attorney's Office, Portland, OR; Michael W. Cotter, United States Attorney, and J. Bishop Grewell, Assistant United States Attorney, United States Attorney's Office, Billings, MT, for Plaintiff-Appellee.
Appeal from the United States District Court for the District of Montana, Richard F. Cebull, District Judge, Presiding. D.C. No. 1:08-cr-00093-RFC-1.
Before: BARRY G. SILVERMAN, WILLIAM A. FLETCHER, and CONSUELO M. CALLAHAN, Circuit Judges.
Todd Kenneth Horob was convicted of false statements to a bank, bank fraud, wire fraud, money laundering, bankruptcy scheme to defraud, and aggravated identity theft. On appeal, we overturned the convictions of false statements to a bank and aggravated identity theft, the latter of which carried a mandatory 24-month consecutive sentence. We affirmed Horob's convictions on the remaining counts and remanded for resentencing. In this second appeal, Horob contends that the district court erred when it: (i) imposed the same 132-month sentence on remand; (ii) considered uncharged conduct when calculating the enhancement level and imposed a sophisticated means enhancement; and (iii) refused his request for an evidentiary hearing on the accuracy of the trial transcripts. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm. It is apparent from the record that the district court sentenced Horob, both originally and on remand, in light of the totality of the circumstances, including the nature of the crime and the character and history of the defendant. In such a case, we hold that the presumption of vindictiveness does not apply when a district court does not impose a more severe sentence on remand, even when the vacated conviction carried a mandatory sentence.
Horob had been a livestock buyer and cattle rancher since he graduated from high school, and for many years he was a trusted businessman. In 2003, he began speculating on the cattle futures market and lost a large amount of money, approximately two million dollars. In order to cover his ever-increasing debts, he took out more and more loans. He secured these loans with cattle he did not own and promised to use these loans for profitable business enterprises that did not exist. To cover up his fraud, he lied even more and asked others to lie for him. He fabricated documents and laundered money. Horob's scheme eventually unraveled when the bank noticed inconsistencies in his statements about the cattle offered as collateral. When the banks tried to verify the
cattle's existence, Horob created fraudulent brand certificates and sent the bankers to feedlots in Nebraska, North Dakota, Minnesota, and Montana. Horob did not own cattle at these feedlots, but he had the owners lie on his behalf. At other times, Horob and his employee ...