United States v. Andrew Agard

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 20 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-10571
Plaintiff - Appellee, D.C. No. 1:12-cr-00994-LEK-1
v.
MEMORANDUM*
ANDREW AGARD,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Hawaii
Leslie E. Kobayashi, District Judge, Presiding
Argued and Submitted February 17, 2015
Honolulu, Hawaii
Before: TASHIMA, N.R. SMITH, and FRIEDLAND, Circuit Judges.
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
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
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 plea of guilty is valid if
knowingly and voluntarily made.”); United States v. Gonzalez, 16 F.3d 985, 990
(9th Cir. 1994) ( “By opposing the acceptance of responsibility adjustment, the
government by its breach of the agreement released Gonzalez from his promise in
paragraph 11 not to appeal.”). Agard does not argue that his appeal waiver was not
knowingly or voluntarily made. Rather, he argues that the government breached
the plea agreement by volunteering the information from the additional tax years,
and that the appeal waiver is therefore unenforceable. On limited remand, after an
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evidentiary hearing on April 20, 2015, the district court found that the information
for tax years 2002-2004 was requested by the probation officer and not volunteered
by the government. Under United States v. Allen, 434 F.3d 1166 (9th Cir. 2006),
the government’s response to the probation officer’s request was not a breach of the
plea agreement, because parties are always required to answer court officials’
questions, and because the government did not advocate for a higher sentence based
on the inclusion of those years. Id. at 1175-76.
Because Agard’s appeal waiver is enforceable, we dismiss his appeal.
DISMISSED.
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