Harpole

*184 MEMORANDUM **

John Thomas Harpole appeals his conviction following a jury trial and the sentence imposed for attempted tax evasion and failure to file income tax returns in violation of 26 U.S.C. §§ 7201 and 7203. Because the parties are familiar with the facts, we do not recite them in detail. We affirm Harpole’s conviction, but vacate and remand his sentence.

Harpole claims that his indictment was constitutionally defective because its failure to refer to the predicate statute requiring him to file an income tax return deprived him of sufficient notice of the charges against him. We construe the indictment liberally in favor of validity where, as here, the defendant did not challenge the indictment’s sufficiency prior to conviction. See United States v. Pheaster, 544 F.2d 353, 361 (9th Cir.1976).

Harpole’s indictment provided him with sufficient notice of the charges against him because the government was not required to cite the applicable tax code provision stating Harpole’s duty to pay taxes. See United States v. Vroman, 975 F.2d 669, 670-71 (9th Cir.1992). Harpole was not prejudicially misled as a result of the indictment’s failure to do so, because the indictment…