United States v. Andrew Agard

ORDER

In September 2012, Andrew Agard pled guilty to one count of Filing a False Income Tax Return. His plea agreement stipulated that the relevant conduct would be limited to tax years 2005-2007. Prior to sentencing, the government provided the probation officer with information for tax years 2002-2004, and the information for those years was incorporated as relevant conduct into the final presentence investigative report. At sentencing, the judge included 2002-2004 as relevant conduct for calculating Agard’s sentence and restitution. Agard now appeals his sentence, arguing that the government breached the plea agreement by providing the information for 2002-2004 to the probation officer.

Because, on the record before us, we are unable to determine whether the information for tax years 2002-2004 was volunteered by the government or requested by the probation officer (or another representative of the court), we remand to the district court for the limited purpose of making supplementary findings on this question. See United States v. Allen, 434 F.3d 1166, 1175-76 (9th Cir.2006).

In doing so, we recognize that Agard does not seek rescission of the plea agreement or specific…