305 371-8101

Court Inadvertently Expanded Taxpayer's Right to Appeal

U.S. v. Saferstein,  673 F.3d 237  (3rd Cir. 2012)

Safertein  appealed from the U.S. District Court for the Eastern District of Pennsylvania, where he pleaded guilty. He argued on appeal that the district court (1) violated his due process rights; (2) denied his right of allocution  at sentencing; and (3) violated his rights under the Ex Post Facto Clause.   He contended that his appellate waiver did not foreclose these arguments.

The court held that, as a result of a statement by the district court during the plea colloquy, which improvidently expanded defendant's appellate rights, defendant did not waive his right to raise constitutional claims on appeal. The district court's statement was clearly at odds with the otherwise plain and straightforward language of the agreement.

The court agreed with defendant that his sentencing, which occurred in accordance with the 2009 U.S. Sentencing Guidelines Manual, violated the Ex Post Facto Clause, U.S. Const. art. I, § 9, cl. 3. The mail and wire fraud counts of which he was convicted occurred in December 2002 and June 2003, and the base offense level for fraud under the Guidelines was subsequently increased on November 1, 2003.

Both counts for submitting false tax returns of which defendant was convicted occurred after that date. The sentencing court applied the Guidelines Manual  in effect when the false tax returns were submitted to the IRS even though those counts were not grouped
with the mail and wire fraud counts. In that circumstance, the application of the later edition of the Guidelines Manual violated the Ex Post Facto Clause.

The case was vacated and remanded to the district court for re-sentencing.

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