The Ninth
Circuit reversed and remanded for resentencing, holding that the Government’s
assertion of higher tax loss than stipulated in the plea agreement violated the
terms of the plea agreement. The Court
felt that remand and resentencing before a different judge was required because,
in a sense, although the sentencing judge said he did not consider the higher number,
it is hard to “unring the bell” so to speak.
1. The Government’s excuse for citing the higher number was: “that the stipulation about 'total tax loss' referred only to so-called ‘criminal’ losses for Guidelines purposes, not the actual total ‘civil’ loss of tax revenue, which the government contends could be used in applying the 18 U.S.C. § 3553(a) factors.” If that indeed was the Government’s attempted justification, the justification was patently wrong. Sentencing is based on the criminal tax numbers. The civil tax numbers may and often do exceed the criminal tax numbers. (Accordingly, after sentencing, it common for the IRS to assert a higher civil tax amount.) But sentencing in a criminal proceeding can only consider loss related to the criminal tax conduct. But neither § 3553(a) nor the Sentencing Guidelines suggest or hint that civil matters should be considered in sentencing.
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