FILED
NOT FOR PUBLICATION MAR 21 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
No. 12-50054
UNITED STATES OF AMERICA,
Plaintiff - Appellee, D.C. No. 2:11-cr-00025-GHK-1
v.
MEMORANDUM *
JOSEPH FORD PROCTOR,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
George H. King, District Judge, Presiding
Argued and Submitted March 7, 2013
Pasadena, California
Before: HURWITZ, THOMAS, Circuit Judges, and BEISTLINE,** Chief District
Judge.
Joseph Proctor appeals a sentence on convictions for two counts of
subscribing to a false tax return, 26 U.S.C. § 7206(1), arguing that the district court
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Ralph R. Beistline, Chief United States District Judge for
the District of Alaska, sitting by designation.
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miscalculated the Sentencing Guidelines’ advisory range of incarceration before
imposing a sixty-month sentence. Adopting the tax-loss determination suggested
by the probation office, the court found that the tax loss caused by Proctor’s
offenses exceeded $400,000.00. Despite not objecting at trial, Proctor now argues
that the record does not support a tax-loss finding of more than $400,000.00, and
the correct advisory range should have been forty-one to fifty-one months.
The parties now agree that Proctor’s domicile was in California during the
2002 and 2003 tax years. Because the parties disagree concerning the impact the
domicile determination should have on Proctor’s sentence, this matter is
VACATED and REMANDED for resentencing so that the district court may
consider this issue in the first instance.
Additionally, Proctor’s Motion to Take Judicial Notice filed July 30,2012, is
hereby GRANTED.
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