Darden

MEMORANDUM ***

James Darden pleaded guilty to twelve counts of aiding and assisting in the preparation of false tax returns in violation of 26 U.S.C. § 7206 (2), and the district court sentenced him to forty-one months in prison. Darden timely appealed his sentence. We have jurisdiction over Darden’s appeal pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742 (a), and for the reasons expressed below, we AFFIRM Darden’s convictions, VACATE his sentence, and REMAND for the limited purpose of providing the district court the opportunity to comply with U.S.S.G. § 5G1.2(d) (2000).

1. Computation of Tax Loss

Darden points out that the statute under which he was convicted, 26 U.S.C. § 7206 (“§ 7206”), authorizes a three-year maximum term of imprisonment, or thirty-six months, and that he received a forty-one month sentence based primarily on the district judge’s well-documented factual finding that he caused $1.6 million in “tax loss.” See U.S.S.G. §§ 2T1.4, 2T4.1. Darden claims that these circumstances violate the constitutional rule expounded in Apprendi v. New Jersey, 530 U.S. 466 , 120 S.Ct. 2348 , 147 L.Ed.2d 435 (2000).

Darden failed to make this argument to the district court, so…