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.