United States v. Andrew Agard , 596 F. App'x 560 ( 2015 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 5 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.
ORDER*
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 order is not appropriate for publication and is not precedent except
as provided by 9th Cir. R. 36-3.
investigative 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
information for 2002-2004 to the probation officer.
Because, on the record before us, we are unable to determine whether the
information for tax years 2002-2004 was volunteered by the government or
requested by the probation officer (or another representative of the court), we
remand to the district court for the limited purpose of making supplementary
findings on this question. See United States v. Allen, 434 F.3d 1166, 1175-76 (9th
Cir. 2006).
In doing so, we recognize that Agard does not seek rescission of the plea
agreement or specific performance as a remedy for the alleged breach. Instead,
Agard asks us to decrease the amount of restitution the district court ordered and to
strike the information for tax years 2002-2004 from the presentence investigation
report. We cannot provide the relief that Agard seeks. The only remedies
available if Agard shows that the government breached the plea agreement are
rescission or specific performance of the plea agreement. Brown v. Poole, 337 F.3d
1155, 1161 (9th Cir. 2003) (“The two available remedies are rescission of the
agreement and specific performance.”). Were we to grant specific performance, we
would be required to vacate Agard’s sentence in its entirety and remand for a new
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sentencing hearing before a different district judge. See Santobello v. New York,
404 U.S. 257, 262-63 (1971).
The parties shall promptly notify the Clerk of this Court when the district
court has decided the remanded issue. Cf. Fed. R. App. P. 12.1(b). This panel
retains jurisdiction of this case.
LIMITED REMAND.
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