MacIel

I. Background

During a routine audit in 1994, the IRS determined that Maciel had significantly understated his income on several tax MACIEL v. CIR 6929 returns. The agency referred Maciel’s case for criminal prose- cution. After initially charging Maciel with two felony counts of tax evasion in violation of 26 U.S.C. § 7201, the govern- ment filed a superseding information on September 23, 1998, charging Maciel with two felony counts of willfully filing a false return in violation of 26 U.S.C. § 7206(1). Unlike § 7201, which requires proof that the defendant “willfully attempt[ed] . . . to evade or defeat” the payment of tax, § 7206(1) requires only proof that the defendant “[w]illfully make[ ] and subscribe[ ]” a materially false return. 26 U.S.C. §§ 7201, 7206(1); see also United States v. Boulware, 384 F.3d 794, 810 (9th Cir. 2004); Considine v. United States, 683 F.2d 1285, 1287 (9th Cir. 1982).

Maciel entered a plea agreement with the government in which he pled guilty to both § 7206(1) counts and admitted signing tax returns he knew to be inaccurate for both the 1991 and 1992 tax years. The plea agreement stated that one of two Sentencing Guidelines…