United States v. John E. WilsonUnited States v. John E. Wilson
John E. Wilson appeals his twenty-one month sentence entered by the district court
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for filing a fraudulent income tax return, in violation of
I. BACKGROUND
On April 1, 1998, a federal grant jury returned a three-count Indictment against John E. Wilson, charging him with filing fraudulent tax returns for the 1991, 1992, and 1993 tax years, in violation of
After Wilson entered his guilty plea, the district court ordered the probation office to prepare the Presentеnce Investigation Report (PSIR). The probation officer used the November 1997 version of the Guidelines, which was the version in effect on October 6, 1998, the date of Wilson’s sentenсing hearing. The probation officer determined that the total tax loss attributable to the offense was $160,701 and that a base offense level of 15 is required for a tax liability of $4160,701. See U.S.S.G. § 2T4.1(J) (Nov.1997). After various adjustments to the offense level, the probation officer arrived at a total offense level of 16 and a criminal history category of I.
At the sentencing hearing, neither the government nor Wilson voiced any objections to the PSIR. In fact, Wilson’s attorney commented that he had “reviewed [the PSIR] and believe[d] it is correct and accurate in all matters.” Tr. of Sentencing Hearing at 2. After the district court decided to adopt the PSIR’s findings and found Wilson’s total offense level to be 16 with a criminal history category оf I, Wil
Fоllowing the imposition of his sentence, Wilson contacted a different attorney. On October 16, 1998, Wilson filed his notice of appeal, arguing that the wrong version of the Guidelines was used to compute his sentence. On October 19, 1998, Wilson’s new attorney contacted the probation officer to raise the issue that the November 1992 Manual should have bеen used and that the calculations under this Manual would result in a total offense level of 14, a criminal history category of I, and a sentencing range of 15 to 21 months of incarceration. On October 21, 1998, the probation officer informed the district court of Wilson’s objections; however, because Wilson had already filed his notice of appeal and the government would not agree to a remand, the district court was without jurisdiction to revisit the matter. As such, this appeal followed.
II. DISCUSSION
Wilson’s only argument on appeаl is that the district court erred in using the 1997 version of § 2T4.1 of the Guidelines to determine his base offense level for filing a fraudulent tax return as opposed to the 1992 version of § 2T4.1, which was in effect at the time Wilson committed the offense in Count Two. Wilson claims that this resulted in a violation of the Ex Post Facto Clause of the United States Constitution,
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Because Wilson raises his ex post facto claim, properly, for the first time on appeal, we review his claim for plain error.
See
we examine whether the district court committed plain error and, if so, then determine if it affected [Wilson’s] substantial rights. If there was plain error and substantial rights were affectеd, we then exercise our discretion to vacate [Wilson’s] sentence only if the error seriously affects the fairness, integrity or public reputation of judicial procеedings.
United States v. Comstock,
In the instant case, we need not reach the issue of whether the district court erroneously applied the 1997 Guidelines Manual in sentencing Wilson and whether applying the 1997 version violated the Ex Post Facto Clause because we find that Wilson waived any objection to applying this version of the Guidelines tо arrive at a base offense level of 15.
“It is well settled that a defendant may waive constitutional rights as part of a plea bargaining agreement” provided that the wаiver is informed and voluntary.
United States v. Garrido,
We have prеviously held that “a defendant who explicitly and voluntarily exposes himself to a specific sentence may not challenge that punishment on appeal.”
United States v. Fritsch,
At the sentencing hearing, Wilson’s attorney indicated that both he and Wilson had reviewed the PSIR and “believe[d] it is correct and accurate in all matters.” Tr. of Sentencing Hearing at 2. In fact, Wilson’s attorney specifically assured the district court that the PSIR recommended the correct offense level and criminal history category. See id. at 3. Finally, Wilson’s attorney told the district court that Wilson had no objection to the 21 month term of imprisonment and three years of supervised release that the district court imposed. See id. at 10.
In sum, we conclude that Wilson, by accepting the benefits of the Agreement (thе dismissal of Counts One and Three) and by agreeing that a base offense level of 15 under § 2T4.1 applied to Count Two, waived any objection to the invalidity of applying the November 1997 Guidelines.
III. CONCLUSION
For the foregoing reasons, we affirm the district court’s judgment and the sentence imposed.
Notes
. The Honorable Nanette K. Laughrey, United States District Judge for the Western District оf Missouri.
. In pertinent part, the Agreement provided: Regarding the application of the Sentencing Guidelines to this case, the parties agree that:
a. In addition to the sum idеntified in Count Two of the Indictment, the defendant admits he failed to report $130,358 of taxable income in 1991, and $118,595 of taxable income in 1993. The defendant agrees that the Court may cоnsider these amounts as "relevant conduct" under § 1B1.3 of the Sentencing Guidelines for purposes of calculating an appropriate sentence in this case.
Appellant’s Br. at B-2.
.Wilson’s tаx liability for Count Two was $160,701. A base offense level of 15 is required for a tax liability of more than $120,-000 but less than or equal to $200,000. See U.S. Sentencing Commission, Guidelines Manual, § 2T4.1(J) (Tax Table) (Nov.1997); compare U.S. Sentencing Commission, Guidelines Manual, § 2T4.1(H) (Tax Table) (Nov. 1992) (requiring a base offense level of 13 for a tax liability of more than $120,000 but less than or equal to $200,000).