The district court agreed that the defendant's attempt to avoid his stipulation for purposes of the Guidelines calculation would be foul. But, the court reasoned, the Guidelines are just advisory and the court has an obligation to determine a fair sentence under 18 USC § 3553(a). The plea agreement did permit the defendant to urge a variance under 18 USC § 3553(a). So, the district court concluded (footnote omitted):
Although the foregoing was in the context of the tax loss, which is the prime determinant for Guidelines sentencing for tax offenses, presumably it would apply to any stipulations designed to affect the Guidelines calculations. Just present the end-run as relating to § 3553(a) rather than the Guidelines.C. RemedyIf defendant objects to the stipulated loss amounts in the plea agreement and their effect on his guideline offense level, the court will consider those objections to be a violation of the plea agreement. Defendant may withdraw those objections or risk violating the terms of the plea agreement. If defendant persists in his objections to the guideline calculations, the government would be permitted to treat the plea agreement as breached and seek further enhancements to defendant's guideline offense level. If, however, defendant intends to proceed in good faith by introducing evidence of the nature and circumstances of his offense and seeks a variance, the court may consider that evidence, as well as any evidence offered by the government to contest the variance under the § 3553(a) factors.
Defendant will not breach the plea agreement if he seeks to introduce evidence of the loss amounts in connection with a request for a variance. Under the [*21] language of the plea agreement, defendant may request a variance from his guidelines range. In response, the government may introduce evidence showing the same or higher loss amounts. The government's motion to enforce stipulations shall be denied without prejudice and defendant's motion to postpone sentencing shall be granted
The problem with this end-run, as the Court noted, is that what is sauce for the goose is sauce for the gander too. If the taxpayer opens up stipulated Guidelines factors under the guise of § 3553(a), then at a minimum, the Government is not bound by the stipulations and should be able to present aggravating Guidelines factors that otherwise were resolved in the plea agreement. Specifically, with respect to tax loss numbers, if the taxpayer really wants to open up the otherwise stipulated tax loss for purposes of affecting the § 3553(a) factors, then the Government may counter with proof that the number should be even higher than stipulated. (The stipulated amount may have been a split of some difference anyway.) And, at least arguably, if the defendant can use § 3553(a) to get around a tax loss stipulation for Guidelines purposes, the Government could not only introduce proof to counter the taxpayer's evidence, but might on its own be the proponent under the guise of § 3553(a) to avoid or mitigate the effect the Government's improvident stipulation for Guidelines purposes.
This is probably a tempest in a teapot anyway. I find it hard to believe that a sentencing court would be materially swayed one way or another if the taxpayer proved a lower tax loss than stipulated unless the court comes to believe that the Government acted unreasonably in forcing the defendant to stipulate the erroneous tax loss or, as they moved to sentencing, the Government acted unreasonably in declining to accept evidence of an error in the calculation of the tax loss incorporated in the plea agreement. As the Court recognized, such plea agreements reflect bargains and several inter-related gives and takes and generally should be honored.
Finally, consider this in the context of the restitution discussion from yesterday, titled "New Statute for Civil Effect of Restitution in Tax Cases (at Least Title 26 Crimes of Conviction)." New Code provisions require the IRS promptly assess the tax restitution amount. As described by the court, the defendant in the case pled to two conspiracies (one to commit wire fraud and one to commit money laundering) and to one count of "filing a false tax return in violation of 26 U.S.C. § 7201." [JAT Note, I presume the specific Code cite means that the plea was to tax evasion and not filing a false return which is usually refers to tax perjury under § 7206(1).] In any event, presumably, the tax loss amount when determined by the sentencing court in Gillen will likely be at least one component of the tax restitution amount. The opinion does not address whether the plea agreement included a restitution agreement, but I suspect it may have since most do now. If it did, and the court orders restitution, would / should it be in the amount in the plea agreement or in the amount proved via the § 3553(a) factors?