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November 20, 1995


The opinion of the court was delivered by: ROBRENO


 AND NOW, this 20th day of November, 1995, upon consideration of the November 13, 1995 letter to the Court from Michael L. Levy, First Assistant United States Attorney, which will be filed of record, and which the Court shall deem a motion for reconsideration, it is hereby ORDERED that the motion is DENIED for the following reasons:

 1. On November 13, 1995, the Court entered an Order-Memorandum (docket no. 37) rejecting the plea agreement between the Government and the defendant in this case. In paragraph 9 of the Order-Memorandum, the Court stated the following:


The Government calculates that the loss caused by the defendant's alleged tax fraud is $ 39,644.22. In reaching this total, contrary to the IRS's determination, the Government agreed that certain personal expenses such as carpeting, windows, and aluminum siding for the defendant's home, which he charged off to his corporation, were ordinary and necessary business expenses. See Government's Change of Plea Memorandum, at 5 n. 4. The Government also agreed that the defendant could take certain travel and entertainment deductions that the IRS had not allowed. See Government's Change of Plea Memorandum, at 7 n. 5. It is the Government's failure to include the disputed personal expense deductions in its calculation of the loss caused by the defendant's conduct that informs the judgment of the Court in its decision to reject the plea agreement.

 2. In its motion for reconsideration, the Government contends that the Court should withdraw the order-memorandum because "it conveys an impression that [Mr. Levy] was derelict in his duties." See Letter from Michael L. Levy to The Honorable Eduardo C. Robreno dated November 13, 1995, at 1. Mr. Levy contends that through his "failure to explain the Government's position" the Court has misunderstood that position with regard to the deductions. Id.

 3. Mr. Levy then explains that the defendant's payments to John Irwin, Sentry Property Management and to Des-Carr Overhead Doors, which were referred to in P 9 of the November 13 Order-Memorandum, were for the rental of a storage garage and the placement of a new door on the garage. The Government contends that the defendant stored both personal and business items in the garage, and thus that the garage had a mixed business and personal use. This caused the Government to decide not to contest the deductibility of the expenses in a criminal tax case. Id. at 1-2.

 4. According to the Government, the defendant also paid for part of an Ingersoll-Rand employee's vacation, and purchased meals for other Ingersoll-Rand employees. *fn1" The Government contends that since these expenditures could be considered legitimate travel and entertainment expenses, it agreed not to contest the deductions in a criminal tax case. Id. at 2.

 5. It is axiomatic that the Court cannot consider information that the Government does not present to it. The information contained in Mr. Levy's letter was not provided to the Court at the October 13, 1995 plea hearing. Nor was it provided in the Government's plea memorandum. Even if the information had been made available on a timely basis, however, the Court would not have reached a different decision. The new information does not change the Court's conclusion that the proposed plea agreement would, at a minimum, impermissibly limit the Court's discretion by reducing the maximum sentence that the Court could impose on the defendant. See Government's Submission Regarding Rule 11(e)(1)(C) Plea (docket no. 34), at 2 ("The government notes that even if the Court disagrees with the parties' view of the tax loss, the effect of accepting the agreement will be to deprive the Court of the possibility of imposing a maximum sentence of 10 months imprisonment and limit it to a maximum of 8 months imprisonment.").

 6. It was because the plea agreement entered into by the Government and the defendant in this case would have limited the Court's discretion to a level below that which could result from a calculation of the total offense level under the "relevant conduct" standard of Section 1B1.3, that the Court rejected the plea agreement. Since the new facts offered by the Government would not change this result, the Government's motion for reconsideration is DENIED.



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