Panel of Judges Merritt, Boggs, and Clay.
Just a quick note on this unpublished case that addresses the use of proffer info at sentencing.
Tax-fraud case. Defendant argued on appeal that the government violated the plea agreement by using information he provided while cooperating against him at sentencing and for calculating restitution. The COA affirmed.
Plain-error review.
The information the dist ct considered at sentencing was not new information the D had provided. It was info the D had had to provide in answer to a grand-jury subpoena. So dist ct did not err in considering it. Also, it was not clear that the info was used to determine the GL range, the D's sentence within the range, or the extent of the the departure.
Regardless of the info at issue, there was ample evidence against the D.
