United States v. George ( 2005 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 04-10307
Plaintiff-Appellee,
v.  D.C. No.
CR-01-00326-MMC
RANDOLPH GEORGE,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the Northern District of California
Maxine M. Chesney, District Judge, Presiding
Argued and Submitted
April 12, 2005—San Francisco, California
Filed August 23, 2005
Before: Donald P. Lay,* Betty B. Fletcher, and
Michael Daly Hawkins, Circuit Judges.
Opinion by Judge Lay
*The Honorable Donald P. Lay, Senior United States Circuit Judge for
the Eighth Circuit, sitting by designation.
11237
UNITED STATES v. GEORGE 11241
COUNSEL
Marcus S. Topel and Daniel F. Cook, Topel & Goodman, San
Francisco, California, for the defendant-appellant.
David L. Denier, Assistant United States Attorney, Tax Divi-
sion, San Francisco, California, for the plaintiff-appellee.
OPINION
LAY, Circuit Judge:
Randolph George was convicted by a jury on two felony
counts of willful filing of false tax returns in violation of 26
U.S.C. § 7206(1), and one misdemeanor count of willful fail-
ure to file a tax return in violation of 26 U.S.C. § 7203. The
district court sentenced George to fifteen months of imprison-
ment for the false returns, twelve months for failure to file (to
run concurrently), and one year of supervised release. Addi-
tionally, the district court ordered George to pay $70,000 in
restitution, a $20,000 fine, and $125 in special assessments.
We affirm.
I. Background
This case presents two key issues: First, are receivership1
1
“A receiver is a court officer or representative appointed to take over
the control and management of property that is the subject of litigation
11242 UNITED STATES v. GEORGE
fees paid to a cash-basis taxpayer taxable in the year received
even though they are subject to subsequent court review and
possible disgorgement? Assuming they are, was the law on
this point sufficiently clear to allow a criminal prosecution of
George for failure to report this income? We answer both
questions in the affirmative.
During 1991, 1992, and 1993, George was affiliated with
Media Venture Partnership, which brokered the sale of radio
stations and, through its affiliate Media Venture Management,
Inc., handled court-appointed receiverships for financially
troubled radio stations being sold off to satisfy debts owed to
the stations’ creditors. Because corporations cannot serve as
court-appointed receivers, George, a cash-basis taxpayer, was
appointed in his individual capacity to serve as the receiver.
George’s receiver fees, which were negotiated with the inter-
ested parties and approved by the court at the start of the
receivership, were paid on an interim basis during the admin-
istration of the receivership, usually monthly.
With respect to the present case, George served as the
court-appointed receiver for five different stations: Reno
Broadcasting (Reno) from October of 1990 to January of
1992, Royal Broadcasting (Royal) from May of 1991 until
1994, KXGO Radio Station from March of 1991 to December
of 1992, Diamond Broadcasting (Diamond) from May 1993
to May of 1994, and JJN Broadcasting (JJN) in 1994. In addi-
tion to brokerage commissions and income from other
sources, George was paid $90,001.42 in receiver fees in 1991,
$125,432.66 in 1992, and $154,595 in 1993.2 Tax returns for
before the court, to preserve the property, and ultimately to dispose of it
according to the final judgment.” 6 WITKIN CAL. PROC. PROVISIONAL
REMEDIES § 416 (4th ed. 2004).
2
The record indicates the disallowed $30,000 of expenses is fully
reflected in the $154,595 of receiver fees paid in 1993. Final accountings
for the Royal and Diamond receiverships required George to repay a total
of $30,000 for disallowed expenses when these receiverships were closed
by the court in 1994.
UNITED STATES v. GEORGE 11243
the 1991 and 1992 income were not filed until 1995. George
never filed a return reporting the receivership income from
1993.
Nevertheless, when George refinanced the mortgage on his
residence in March of 1994, he submitted copies of apparent
tax returns for 1991 and 1992, listing the receiver fees as per-
sonal income for those years. George also submitted a State-
ment of Income and Expenses for 1993, listing receiver fees
as his personal income. These returns turned out to be fraudu-
lent documents fabricated by George for purposes of obtain-
ing the refinancing of his mortgage.
On January 13, 1995, the Internal Revenue Service (IRS)
sent George a written inquiry regarding his 1991 and 1992
returns which had not been filed. George falsely responded
that the returns had been filed in December of 1994. George
also falsely responded to a subsequent IRS inquiry, asserting
that the accounting firm of Antonini Professional Corporation
was to have completed the returns, but that it went out of
business and another firm was working on the returns. George
later prepared the 1991 and 1992 returns himself, filing them
on October 16, 1995. Neither George’s returns nor his
spouse’s for 1991 and 1992 reported the receivership fees
received during those years. No return was filed by George or
his wife for tax year 1993. Finally, The Georges’ 1994 joint
tax return reported only $23,000 in receiver fees, in addition
to income from other sources. These returns, though filed
years after George was paid the receiver fees and approxi-
mately one year after the last receivership was approved by
the court, failed to report $347,029.08 in receiver fees.
When an IRS revenue agent initially interviewed George
regarding his 1991 and 1992 returns on July 16, 1996, George
did not disclose his employment as a receiver and did not dis-
close the $90,001.42 of receiver fees from 1991 nor the
$125,432.66 of receiver fees from 1992. During a second
interview on February 28, 1997, George admitted he earned
11244 UNITED STATES v. GEORGE
the receiver fees, but only after he was confronted with the
fraudulent tax returns submitted to the lender in 1994 in sup-
port of his mortgage application. A referral for criminal prose-
cution soon followed.
II. Analysis
A. Clarity of the Law
George first argues that, as a matter of law, he lacked wil-
fulness to commit a crime because the law governing alloca-
tion of receiver fees was not clearly established at the time of
the offense. The district court’s determination that the predi-
cate law was clearly established is a question of law which we
review de novo. See United States v. Schulman, 817 F.2d
1355, 1358 (9th Cir. 1987) (citing United States v. Russell,
804 F.2d 571, 574 (9th Cir. 1986)).
[1] The element of wilfulness cannot obtain in a criminal
tax evasion case unless “the law clearly prohibited the con-
duct alleged in the indictment.” Schulman, 817 F.2d at 1359;
see also James v. United States, 366 U.S. 213, 221-22 (1961)
(vacating taxpayer’s conviction for failure to report embez-
zled funds as income because conflicting caselaw rendered
the predicate tax statute ambiguous when applied to embez-
zled funds). Without sufficient clarity in the law, taxpayers
lack the “fair notice” demanded by due process so that they
may conform their conduct to the law. United States v. Dahls-
trom, 713 F.2d 1423, 1427 (9th Cir. 1983) (citing United
States v. Batchelder, 442 U.S. 114, 123 (1979)). However, a
lack of prior appellate rulings on the topic does not render the
law vague, nor does a lack of previously litigated fact patterns
deprive taxpayers of fair notice. See Russell, 804 F.2d at 575
(citing United States v. Ingredient Tech. Corp., 698 F.2d 88,
96 (2d Cir. 1983) (stating that it was “immaterial” that there
was no prior litigation directly on point)). Thus, criminal
prosecution is permissible when it is “clear beyond any doubt
UNITED STATES v. GEORGE 11245
that [the conduct] is illegal under established principles of tax
law . . . .” Russell, 804 F.2d at 575.
[2] The general income allocation rule provides that “[t]he
amount of any item of gross income shall be included in the
gross income for the taxable year in which received by the
taxpayer, unless, under the method of accounting used in
computing taxable income, such amount is to be properly
accounted for as of a different period.” 26 U.S.C. § 451(a).
The applicable regulations further clarify this general rule by
identifying the respective duties for cash-basis and accrual
basis taxpayers. “Under the cash receipts and disbursements
method of accounting, such an amount is includible in gross
income when actually or constructively received.” 26 C.F.R.
§ 1.451-1 (a).3 Thus, as a cash-basis taxpayer, George would
ordinarily be required to report income in the year it is received.4
According to George, the statute and regulations are ambig-
uous as to when receiver fees should be reported as gross
income. George points to caselaw that purports to support his
claim that receiver fees paid to a cash-basis taxpayer are not
taxable until the time of final accounting and approval by the
supervising court. According to George, the potential for sub-
sequent disgorgement means that receiver fees are not
received under a claim of right. See e.g., C.I.R. v. Indianapolis
Power & Light Co., 493 U.S. 203, 209-10 (1990); American
Valmar Int’l Ltd., Inc. v. C.I.R., 229 F.3d 98, 102 (2d Cir.
2000); Ahadpour v. C.I.R., 77 T.C.M. 1210 (1999),
1999 Tax Ct. Memo LEXIS 9 at * 16-17; Massey v. C.I.R.,
143 F.2d 429, 430-31 (5th Cir. 1944); Parkford v. C.I.R., 133
3
We no not reproduce other provisions of 26 C.F.R. § 1.451-1 dealing
with allocations under the accrual method of accounting as they do not
apply to cash-basis taxpayers like George. Likewise, we do not consider
26 C.F.R. § 1.45-2 applicable as this regulation is specific to the allocation
of constructively-received income. The record shows that George actually
received the fees.
4
George has never claimed to be an accrual basis taxpayer.
11246 UNITED STATES v. GEORGE
F.2d 249, 250 (9th Cir. 1943); Helvering v. McGlue’s Estate,
119 F.2d 167, 169 (4th Cir. 1941); C.I.R. v. Cadwalader, 88
F.2d 274, 274-75 (3d Cir. 1937).
George’s reliance on these cases for such a proposition is
misplaced. These cases simply suggest that receiver fees paid
to cash-basis taxpayers are income in the year actually paid,
and fees paid to accrual basis taxpayers are taxable in the year
the applicable state law creates a right to demand the fees.
Compare Cadwalader, 88 F.2d at 275 (“As 1930 was the year
in which she in fact received the cash commission from the
Roebling estate, that is the year in which the income was
received and the tax upon its receipt due.”) (cash-basis tax-
payer), and Massey, 143 F.2d at 430-31 (holding attorney’s
receipt of cash payment for part of contingency fee taxable in
the year actually received; remainder of fee not constructively
received or taxable until settlement approved by the court)
(cash-basis taxpayer), with McGlue’s Estate, 119 F.2d at 169
(stating that an accrual method taxpayer ordinarily reports
executor fees only when entitlement to them attaches under
applicable state law, but death of the taxpayer triggers special
provision of tax code allocating income as of the date of death
despite lack of entitlement under state law), and Parkford,
133 F.2d at 250 (holding an accrual basis taxpayer who was
not a receiver need not report commission income for sale of
a company which happened to be in receivership until the
supervising court approved the sale).
Other cases cited by George provide that funds received
while still subject to an express obligation to repay are not
income. Unfortunately, these cases have little to do with the
type of income at issue here: receiver fees. See e.g., Indianap-
olis Power & Light, 493 U.S. at 214 (stating deposits held by
utility to secure payment from customers with poor credit was
not income because the utility assumed an express obligation
either to apply the deposits to customers’ bills or to refund the
balance); American Valmar, 229 F.3d at 102-03 (finding cus-
tomer deposits held by international broker not income
UNITED STATES v. GEORGE 11247
because the broker had an obligation to use the deposits for
the customers’ benefit or to repay them); Ahadpour, 1999 Tax
Ct. Memo LEXIS 9 at *16-17 (holding earnest money
advanced to sellers from escrow under the terms of a contract
to sell real property was not income to the sellers in the year
received because the contract created an express obligation to
repay the funds if the sale did not close).
[3] In contrast, two other cases specifically apply the claim
of right doctrine to allocate executors’ fees in the year they
are received. In United States v. Merrill, 211 F.2d 297, 299
(9th Cir. 1954), a husband who was appointed as the executor
of his wife’s estate erroneously paid all of his executor fees
out of his wife’s segregated share of the community funds.
We held that the entire $10,000 of executors’ fees paid in
1939 were taxable to him under the claim of right doctrine
despite the fact that $2,500 was repaid to the estate in a subse-
quent year due to the error. Id. at 303. Merrill therefore unam-
biguously applied the claim of right doctrine to the receipt of
trustee fees even though they were subject to final court
approval and were partially repaid.
[4] Similarly, the Second Circuit applied the claim of right
doctrine to executors’ commissions in Jacobs v. Hoey, 136
F.2d 954, 956-57 (2d Cir. 1943). The court held that such
commissions were taxable in the year received, not in the year
the supervising court conferred final approval. Of particular
importance to the Jacobs court was the fact that the executor
negotiated an arrangement with the beneficiaries that allowed
advances against his ultimate commission. Because the inter-
ested parties had agreed in advance, “there was no reasonable
likelihood that the [executor] would be called upon to return
the sums that had been paid as commissions.” Id. at 957.
Rejecting the taxpayer’s argument that the advance commis-
sions should be treated as loans because they were subject to
subsequent court approval and possible disgorgement, the
Second Circuit held that the commissions were properly allo-
11248 UNITED STATES v. GEORGE
cated to the taxpayer under the claim of right doctrine in the
years they were actually paid. Id. at 956.
[5] We conclude that the law clearly required George, a
cash basis taxpayer, to report the receiver fees in the years he
received them. We find 26 U.S.C. § 451 and the applicable
cash-basis provision of 26 C.F.R. § 1.451-1 free from
ambiguities regarding allocation of George’s income. As
stated in the regulation, “[u]nder the cash receipts and dis-
bursements method of accounting, such an amount is includ-
ible in gross income when actually or constructively
received.” 26 C.F.R. § 1.451-1 (a).
[6] The fact that George’s receiver fees were subject to pos-
sible disgorgement at the time of a subsequent final account-
ing does not remove them from the claim of right doctrine. To
the contrary, George’s fees were taxable in the year received
“even though it may [have been] claimed that he [was] not
entitled to retain the money, and even though he may [have
been] adjudged liable to restore its equivalent.” N. Am. Oil
Consolidated v. Burnet, 286 U.S. 417, 424 (1932). Merrill
and Jacobs confirm that executor fees and commissions are
not exempt from the claim of right doctrine merely because
they are subject to final court approval and possible disgorge-
ment.5 Likewise, the fact that some fees were actually repaid
does not insulate the fees from the claim of right doctrine. See
Merrill, 211 F.2d at 303; see also Rasmus v. C.I.R., 47
T.C.M. 829 (1984), 1984 Tax Ct. Memo LEXIS 664
at *14 (holding funds misappropriated from estate by the
administering attorney constituted income to the attorney in
5
If anything, the fact that the courts supervising the receiverships
approved George’s fees demonstrates that he, like the executor in Jacobs,
faced little threat of disgorgement. See People v. Riverside Univ., 35 Cal.
App. 3d 572, 587 (1973) (“It is settled that fees awarded to receivers are
in the sound discretion of the trial court and in the absence of a clear
showing of an abuse of discretion, a reviewing court is not justified in set-
ting aside an order fixing fees.”).
UNITED STATES v. GEORGE 11249
the year misappropriated despite subsequent repayment).
These same principles apply to receiver fees like George’s.
[7] Short of an express obligation to repay, a contingent
obligation to repay a portion of receiver fees actually paid to
a cash-basis taxpayer does not remove these payments from
the claim of right doctrine. See Merrill, 211 F.2d at 303-04.
This is because “a potential or dormant restriction . . . which
depends on the future application of rules of law to present
facts, is not a ‘restriction on use’ within the meaning of [the
claim of right doctrine].” Healy v. C.I.R., 345 U.S. 278, 284
(1953). Indeed, application of the claim of right doctrine does
not turn on the relative likelihood of a contingent obligation
coming to fruition nor does it depend on the legitimacy of the
taxpayer’s right to retain the funds. See James, 366 U.S. at
219-20 (stating illegally obtained funds are considered
income and subject to the claim of right doctrine). Instead, the
relevant inquiry centers on the taxpayer’s dominion and con-
trol of the funds, see Indianapolis Power & Light, 493 U.S.
at 212, and the manner in which the taxpayer treats the funds,
see Alexander Shokai, Inc. v. C.I.R., 34 F.3d 1480, 1485 (9th
Cir. 1994). “A taxpayer receives a payment under a claim of
right when he treats the payment ‘as belonging to him.’ ” Id.
(quoting Healy, 345 U.S. at 282).6
[8] In sum, the district court correctly determined that the
claim of right doctrine applied to George’s receiver fees. The
law on this point was sufficiently clear to allow prosecution
for failure to report such fees in the years received.
B. Good Faith Defense
George next argues that because he held a good faith belief
6
Taxpayers who are eventually called upon in a subsequent year to
repay funds acquired under a claim of right are entitled to an offsetting
deduction in the year of repayment. See Alexander Shokai, 34 F.3d at
1485; see also 26 U.S.C. § 1341(a).
11250 UNITED STATES v. GEORGE
the receiver fees were not taxable until the year in which the
final accountings were approved and the receiverships were
closed by the supervising courts, the evidence was insufficient
to support his conviction. When preserved in the district court
through a motion for acquittal as it was in this case, we
review a challenge to the sufficiency of the evidence de novo.
See United States v. Carranza, 289 F.3d 634, 641 (9th Cir.
2002) (citing United States v. Munoz, 233 F.3d 1117, 1129
(9th Cir. 2000)). In this review, we examine the evidence in
the light most favorable to the government and determine
whether “any rational trier of fact could have found the essen-
tial elements of the crime beyond a reasonable doubt.” Jack-
son v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in
original) (citing Johnson v. Louisiana, 406 U.S. 356, 362
(1972)).
[9] Willfulness is an element of making and filing a false
tax return. See 26 U.S.C. § 7206(1). To establish the requisite
level of willfulness, the government must prove “that the law
imposed a duty on the defendant, that the defendant knew of
this duty, and that he voluntarily and intentionally violated
that duty.” Cheek v. United States, 498 U.S. 192, 201 (1991).
The government cannot carry this burden without negating the
defendant’s claim that he was ignorant of the law, that he mis-
understood the law, or that he held a good-faith belief his con-
duct did not violate the law. Id. at 202. Good faith reliance on
a qualified tax accountant is a defense to willfulness. See
United States v. Bishop, 291 F.3d 1100, 1106-07 (9th Cir.
2002).
[10] Viewing the evidence in the light most favorable to the
government, we conclude the government met its burden to
prove willfulness, including its burden to negate George’s
good faith defense. The government presented overwhelming
evidence at trial which proved that the vast majority of the
receiver fees paid to George were never reported on any tax
return. The government’s evidence showed that two of the
receiverships (Reno and Diamond) were closed in 1992, yet
UNITED STATES v. GEORGE 11251
George did not report the receiver fees from these receiver-
ships on his 1992 returns. This is fundamentally inconsistent
with George’s good faith defense that he was waiting until the
receiverships were closed to report the income. Furthermore,
the government’s evidence showed that in 1994, the year the
other receiverships closed, George failed to report the vast
majority of the other receiver fees paid to him in 1991 and
1992. Based on this, a rational trier of fact could have con-
cluded that there was no good faith on George’s part.
[11] Additionally, prosecution witness Orlando Antonini
testified his firm was never retained by George to prepare his
individual income tax returns. This testimony undermined
George’s claim that he relied on personal advice from
Antonini in deciding not to report the fees until the receiver-
ships were closed. Notably, defense counsel never asked
Antonini whether he personally advised George to report the
receiver fees on his personal returns in the year that the court
approved the final accounting of the receivership, as opposed
to the year the fees were actually received. George was the
sole witness who testified to that effect, and the jury appar-
ently found his testimony to be less than credible. Thus, we
reject George’s good faith defense.
C. Jury Instructions
[12] George claims that the district court committed revers-
ible error when it adopted a claim of right jury instruction and
rejected his proposed contingent payment jury instruction. We
review the district court’s rejection of the defendant’s prof-
fered instructions de novo when this decision is based on a
question of law. See United States v. Eshkol, 108 F.3d 1025,
1028 (9th Cir. 1997) (citing United States v. Duran, 59 F.3d
938, 941 (9th Cir. 1995)). Whether the claim of right doctrine
applies to receiver fees is a question of law. See Alexander
Shokai, 34 F.3d at 1485. While a defendant is entitled to an
instruction that adequately addresses his theory of defense, he
is not entitled to an instruction that misstates the law. See
11252 UNITED STATES v. GEORGE
United States v. Hicks, 217 F.3d 1038, 1045 (9th Cir. 2000)
(rejecting defendant’s proffered instructions because, among
other things, they “were not legally accurate”).
The district court gave the following instruction:
Defendant is a cash-basis taxpayer. For a cash-basis
taxpayer, income must be included as gross income
on his federal income tax returns for the taxable year
in which the income is actually received by the tax-
payer. Income is actually received by a taxpayer
when it is actually reduced to his possession. If a
cash-basis taxpayer is paid income by check, the
check constitutes income to the cash-basis taxpayer
when he receives it. Income deposited in the taxpay-
er’s bank is actually reduced to the taxpayer’s pos-
session.
George’s proffered instruction would have added that income
is not reduced to the taxpayer’s possession “if the receipt is
. . . subject to substantial limitations or restrictions.” George’s
proffered instruction went on to state:
[o]ne substantial limitation or restriction includes the
receipt of the income by a trustee or receiver subject
to later court approval of the amount received. In
such circumstances, the income is not considered
received until the court provides its final approval
and is considered received and is to be reported in
the tax year in which the court approval is obtained
even though monies were actually received and used
by the trustee or receiver at an earlier time.
[13] We conclude the district court committed no error in
rejecting George’s proffered jury instruction. George’s
instruction misstated a cash-basis taxpayer’s duty to report
income in the year received, see 26 C.F.R. § 1.451-1 (a), and
ignored the long-settled principle that income is taxable in the
UNITED STATES v. GEORGE 11253
year received “even though it may still be claimed that he is
not entitled to retain the money, and even though he may still
be adjudged liable to restore its equivalent.” N. Am. Oil, 286
U.S. at 424.
D. Motion for New Trial
George seeks a new trial based on the receivership returns
for Royal and Diamond which he alleges were newly discov-
ered after trial. George claims these receivership returns,
which are entirely separate from his personal tax returns,
show that prosecution witness Orlando Antonini presented
material testimony that was incorrect, misleading, and false.
This court reviews a denial of a motion for new trial based
upon newly discovered evidence for an abuse of discretion.
See United States v. Kulczyk, 931 F.2d 542, 548 (9th Cir.
1991) (citing United States v. Lopez, 803 F.2d 969, 977 (9th
Cir. 1986)). To prevail on a motion for new trial based upon
newly discovered evidence, the defendant must show (1) the
evidence is newly discovered; (2) failure to discover the evi-
dence sooner was not due to lack of diligence; (3) the evi-
dence was material to trial issues; (4) the evidence was not
cumulative or merely impeaching; and (5) a new trial, if
granted, would probably result in acquittal. See id.; see also
FED. R. CRIM. P. 33.
[14] We are not persuaded that the district court abused its
discretion in denying George’s motion for a new trial.
George’s failures to subpoena Antonini before trial or contact
the California State Franchise Tax Board to obtain copies of
the radio stations’ state returns suggest that George was not
diligent.
Moreover, the newly discovered evidence was not material.
At trial, the prosecution called Antonini to testify for the pur-
pose of showing that George never retained Antonini to pre-
pare George’s 1991 and 1992 personal tax returns,
11254 UNITED STATES v. GEORGE
contradicting George’s testimony that he relied on Antonini’s
advice to delay reporting receivership fees until the receiver-
ships were closed. Antonini did testify that his firm performed
bookkeeping work for George’s receiverships and may have
prepared tax returns for them, but when defense counsel pre-
sented Antonini with unsigned copies of the Royal Broadcast-
ing returns, Antonini refused to state that his firm prepared
them because the copies lacked any indicia of identification.
We acknowledge that, had the newly acquired receivership
returns been presented to Antonini at trial, Antonini would
have been forced to admit that his firm prepared them. Still,
this concession would not have bolstered George’s claim that
Antonini advised George not to declare receiver fees on his
personal tax returns. It would have only established a collat-
eral point — who prepared the receiverships’ returns.
[15] Next, assuming arguendo that the new returns partially
impeached Antonini’s credibility, this would not merit a new
trial. See Kulcyk, 931 F.2d at 549 (stating “evidence that
would merely impeach a witness cannot support a motion for
a new trial”). Given the lack of materiality and George’s
apparent credibility problem, it is unlikely the new evidence
would have resulted in an acquittal for George. Thus, we
affirm the district court’s denial of George’s motion for a new
trial.
E. Sentencing
George contends the district court erred when it included
tax losses for fiscal year 1994, and tax losses attributable to
George’s spouse from 1991-1993, as relevant conduct for the
purposes of determining George’s total tax losses under the
United States Sentencing Guidelines (U.S.S.G.). He cites
United States v. Booker, 125 S. Ct. 738 (2005), to support his
position.
A probation officer prepared a presentence investigation
report (PSR) which included tax losses from fiscal year 1994,
UNITED STATES v. GEORGE 11255
and tax losses attributable to George’s spouse from 1991-
1993, in calculating total tax losses of $145,685 incurred as
a result of George’s illegal conduct. This amount of tax loss
corresponded to an offense level of 15. The district court con-
sidered but ultimately disregarded the recommendation con-
tained in the PSR. Instead, the district court simply accepted
the total tax loss amount stipulated to by the parties i.e., tax
losses of “more than $70,000 but less than $120,000, resulting
in a base offense level of 14 pursuant to U.S.S.G. § 2T4.1
(1994).” George’s sentence was therefore not based upon any
judicial factfinding; his sentence was based on tax losses to
which George admitted in the stipulation, and no Sixth
Amendment issue exists.
[16] The absence of a Sixth Amendment violation, how-
ever, is not the end of our inquiry. See United States v. Staf-
ford, 2005 WL 1813313 at *7 (9th Cir. 2005) (“While it
appears that the facts upon which the obstruction of justice
enhancement was based were admitted by the defendant, we
nonetheless follow Ameline’s ‘limited remand’ approach.”).
“[D]efendants are entitled to limited remands in all pending
direct criminal appeals involving unpreserved Booker error,
whether constitutional or nonconstitutional.” United States v.
Moreno-Herdandez, No. 03-30387, 2005 WL ___, at *___
(9th Cir. August 17, 2005).
[17] On the record before us, we cannot determine whether
the district court would have imposed a materially different
sentence under a discretionary sentencing regime. Accord-
ingly, we remand George’s sentence in accordance with
United States v. Ameline, 409 F.3d 1073, 1084-85 (9th Cir.
2005) (en banc).
III. Conclusion
George’s conviction is affirmed, but this case is remanded
to the district court to review the sentence in accordance with
Ameline.
AFFIRMED in part and REMANDED in part.