Today, I read a tax case serving as a key object lesson for students and practitioners. Read the rules carefully.
In United States v. Hafeez, 2013 U.S. Dist. LEXIS 118783 (ED LA 2013), the defendant was convicted of a tax crime was sentenced on a plea stipulation that the tax loss was between $80,000 and $173,278.89. The lower number is a key break point in the tax loss table (see here). After sentencing, the defendant sought to correct the tax loss to $68,308.92, which would achieve a 2 point reduction in his base offense level and in offense level for the sentencing table. He sought the correction under Rule 35(a), here. He timely filed the Rule 35(a) motion within the 14 day period allowed; but did not set the motion for hearing until after the 14 day period. Therein lay the rub.
I cut and paste the entire decision below:
ORDER AND REASONS
IT IS HEREBY ORDERED that Abdul Hafeez's Motion to Correct and Reduce Sentence Based on Clear Error under Rule 35(a) of the Federal Rules of Criminal Procedure (Doc. #62) is DISMISSED FOR LACK OF JURISDICTION.
BACKGROUND
On January 3, 2013, defendant, Abdul Hafeez, pleaded guilty to a one-count Bill of Information in which he was charged with conspiracy to defraud the United States in violation of 18 U.S.C. § 371. In the plea agreement and factual basis, Hafeez and the government agreed that for the purposes calculating Hafeez's sentence under the United States Sentencing Guidelines, the combined tax loss caused by Hafeez's participation in the tax fraud scheme was no more than $173,278.89, and no less than $80,001.00. Hafeez and the government further agreed that the amount of restitution Hafeez owed to the government was $153,939.85.
After reviewing the presentence investigation report, the court applied the United States Sentencing Guidelines in accordance with the parties' agreements regarding the amount of the tax loss to the United States and Hafeez's minor role in the offense. Hafeez's offense level was 12, and his criminal history category was I, indicating, 10 to 16 months imprisonment, 1 to 3 years supervised release, and a $3,000 to $30,000 fine.
On July 25, 2013, Hafeez was sentenced to serve 10 months in the custody of the Bureau of Prisons, followed by a 3 year term of supervised release. Hafeez was also ordered to pay a fine in the amount of $30,000, plus interest, and restitution in the amount of $153,939.85, plus interest.
