BACKGROUND
In February 1996, the government charged Milton Gottesman in a two-eount information. Count One charged Gottesman with making a false Application for Automatic Extension of Time to File a United States Individual Tax Return, in each year from 1988 through 1991, in violation of 26 U.S.C. § 7206(1). Count Two charged him with failing to file income tax returns for 1988 through 1991, in violation of 26 U.S.C. § 7203.
Gottesman waived his right to be charged in an indictment and pled guilty to both counts in the information рursuant to a written plea agreement. The plea agreement contained a paragraph which read:
It is understood that, prior to the date of sentencing, [Milton Gottesman] shall file aсcurate income tax returns for the years 1986 through 1991. Milton Gottesman will pay past taxes due and owing to the Internal Revenue Service (“IRS”) by him for the calendar years 1986 through 1991, including any applicable penalties, on such terms and conditions as will be agreed upon between Milton Gottesman and the IRS.
The Agreement also contained a typical merger clause stating that “[t]here are no promises, agreements, or understandings between this Office, the Tax Division, Department of Justice, and the Defendant other than those set forth herein.” The plea *151 agreement was silent as to the appliсable Sentencing Guidelines.
Gottesman entered his guilty plea before Judge Sonia Sotomayor (S.D.N.Y.). During the plea colloquy, there was no mention, either by Judge Sotomayor or the prosecutor, оf the possibility that Gottesman would be subject to court-ordered restitution. Judge Sotomayor accepted Gottesman’s plea and set a date for sentencing.
The Probation Department then prepared a Presentence Report. It determined that the 1991 Sentencing Guidelines applied and that under section 1B1.3 thereof, the district judge might consider the defendant’s “relevant conduct” whеn setting a sentence. Relevant conduct can include acts that did not form the basis of a charge in the indictment or information. The Probation Department thus concluded that Gottesman’s relevаnt conduct included not only the tax evasion from 1988 through 1991 (for which he was charged and to which he pled guilty), but also tax evasion from 1986 through 1987.
The Probation Department determined that the loss of tax revenuе from 1986 though 1987 was $83,426, and the loss of tax revenue from 1988 through 1991 was $166,016, for a total loss of tax revenue of $249,442. Under section 2T4.1 of the 1991 Guidelines, when a defendant causes over $200,000 in tax loss, the applicable offеnse level is 14 and the Probation Department recommended that Judge Sotomayor reduce it by two levels under section 3El.l(a) for Gottesman’s acceptance of responsibility. With the final offense level of twelve, and Gottesman’s Criminal History Category of I, the applicable sentencing range was ten to sixteen months.
In October 1996, Judge Sotomayor, noting that Gottesman had not filed tax returns for twеnty years, sentenced Gottesman to 12 months’ imprisonment, followed by one year of supervised release. She also required that, at the end of his supervised release, Gottesman sign a confessiоn of judgment and make full restitution of the $249,442. Judge Sotomayor ordered that Gottesman pay the government 10% of his income until the full tax debt was paid.
Gottesman appeals the portion of his sentencе ordering him to make restitution.
DISCUSSION
Gottesman’s sole argument on appeal is that a court’s power to award restitution is statutory, and no statute allowed Judge Soto-mayor to order restitution for violations of Title 26, the Title under which Gottesman was convicted.
A. Court-Ordered Restitution in Title 26 Cases
“Federal courts have no inherent power to order restitution. Such authority must be conferred by Congress” through statute.
United States v. Helmsley,
The government contends that the language of the agreement that “Gottesman will pay past taxes due and owing to the IRS,.. . on such terms and conditions as will be agreed upon between ... Gottesman and the IRS,” is sufficient under 18 U.S.C. § 3663(a)(3) to empower the district court to order restitution for the amount of taxes due and owing. Gottesman answers that he never agreed to court-ordered restitution, and thus § 3663(a)(3) has no application. Gottesman asserts that he agreed only to pay back taxes according to a plan later to be negotiated between himself and the IRS — not as ordered by a court. And no such plan was ever negotiated.
B. Language in Plea Agreements Contemplating Court-Ordered Restitution
Not to put too fine a point on it (as Snagsby was wont to say in
Bleak
House), it
*152
would seem self-evident that for a court to order rеstitution under § 3663(a)(3), the plea agreement might be expected to mention the word “restitution.” In
United States v. Broughton-Jones,
the defendant argued that the district court erred in ordering him to pay restitution in an amount greater than the loss аttributable to the offense of conviction.
Here, while the plea agreement does nоt include the word “restitution”, it is certain that the government anticipated some tax payment by Gottesman. The only question is whether Gottesman understood that these reparations could be ordered by a court.
Section 3663(a)(3) is straightforward: “eourt[s] may also order restitution in any criminal case
to the extent
agreed to by the parties in the plea agreement.” 18 U.S.C. § 3663(a)(3) (emphasis added). Two consequencеs flow from this language. First, the court can order restitution only in an amount not to exceed that agreed upon by the parties.
See, e.g., United States v. Bartsh,
In
United States v. Stout,
the Fifth Circuit faced circumstances analogous to those presented in this appeal.
See
The need for precise language in § 3663(a)(3) cases is driven by the policy that plea agreements, like contracts, are instruments used to protect the rights and expectations of the parties.
See United States v. Harvey,
As with any contract in which the drafting party has an overwhelmingly superi- or bargaining position, plea agreements arе construed strictly against the government.
See Ready,
We have recognized in the Rule 11 context a similar need for precision of language to protect a defendant’s expectations in a plea agreement. In
United States v. Showerman,
Because the agreement between Gottesman and the government did not contemplate court-ordered restitution, the district court did not have the power to order restitution under 18 U.S.C. § 3663(а)(3).
We vacate only that portion of the district court’s sentence that imposed restitution, and otherwise affirm the sentence. We therefore remand to the district court with instructions to withdraw its directiоn to make restitution. See 18 U.S.C. § 3742(f)(1).
CONCLUSION
Accordingly, we vacate that portion of the district court’s sentence that imposes an order of restitution, otherwise affirm the sentence, and remand to the district court for a disposition consistent with this opinion.