UNITED STATES of America, Plaintiff-Appellee, v. Joseph Ford PROCTOR, Defendant-Appellant, 513 F. App'x 671

MEMORANDUM 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 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. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.