Upward Variance for Embezzling Tribal Official Affirmed

US v. Bullcoming, No. 09-6010, 9/3/09 - Defendant, a tribal official entrusted with handling his district’s share of gaming revenue, pled guilty to one count of embezzlement in exchange for dismissal of other counts and agreed to substantial restitution. He received a two-level decrease for acceptance of responsibility. At sentencing, another tribal official testified on behalf of the tribe that defendant had never accepted responsibility for his actions in stealing from the tribe in a separate case prosecuted in tribal court, and the government argued that it would probably never be able to prove the full amount of restitution. Defendant objected to none of this. The district court varied upward from the top of the guidelines range of 18 months and sentenced defendant to 36 months.

Held - government did not breach the plea agreement, and there was no plain error, because 1) the tribal official, not the government, commented on defendant’s failure to accept responsibility, and the victim has the right to heard at sentencing; and 2) government did not breach agreement because its comments about restitution were in the context of offense level calculation; even if it did, defendant could not show prejudice. Finally, the district court did not abuse its discretion in varying upward.