United States v. Andrew Agard

MEMORANDUM

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 probátion officer with information for tax years 2002-2004, and the information for those years was incorporated as relevant conduct into the final presentence investigation 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 tax information for 2002-2004 to the probation officer.

Agard’s plea agreement contains a waiver of the right to appeal his sentence unless his sentence exceeds the Sentencing Guidelines range. Agard’s sentence does not exceed the Guidelines range.

Agard may bring an appeal notwithstanding the appeal waiver only if his plea was not knowingly and voluntarily entered or if the government breached the plea agreement. See United States v. Bolinger, 940 F.2d 478, 480 (9th Cir.1991) (“[A]n express waiver of the right to appeal in a negotiated…