US v. Moschella, No. 11-50377 (8-14-13)(Zipps, D.J., with Berzon and Ikuta). 

The defendant pled guilty to fraud counts.  The plea agreement had the government recommending the low end of the Guidelines range; the defendant being able to argue for a departure or variance downward, which the government could oppose;  and an agreement on restitution.  The defendant, at sentencing argued for a variance downward.  The government did not tacitly breach a plea agreement in arguing against defendant's variance.  The government recommended the low end, and its arguments against a lower sentence due to the harm and motivation (greed) of the defendant were consistent with the terms.  The court did vary, but upward.  This was in permissible.  Because  it was a variance, the court did not have to give notice.  Lastly, the court could order restitution for two newly found victims of the fraud.