United States v. Tomko

Opinions of the United

2007 Decisions States Court of Appeals

for the Third Circuit

8-20-2007

USA v. Tomko

Precedential or Non-Precedential: Precedential

Docket No. 05-4997

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 05-4997

UNITED STATES OF AMERICA,

Appellant

v.

WILLIAM TOMKO

On Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. No. 04-cr-00108)

District Judge: Honorable Gary L. Lancaster

Argued October 24, 2006

Before: SMITH, FISHER and COWEN, Circuit Judges.

(Filed: August 20, 2007 )

Alan Hechtkopf

S. Robert Lyons (Argued)

United States Department of Justice

Tax Division

P.O. Box 502

Washington, DC 20044

Attorneys for Appellant

J. Alan Johnson

Cynthia R. Eddy (Argued)

Johnson & Eddy

707 Grant Street

1720 Gulf Tower

Pittsburgh, PA 15219

Attorneys for Appellee

OPINION OF THE COURT

FISHER, Circuit Judge.

The Government appeals from a judgment of sentence

imposed on William Tomko, Jr., who pleaded guilty to a

fraudulent scheme to evade personal income taxes. Tomko’s

fraudulent scheme resulted in a tax deficiency of more than

$225,000. The District Court imposed a below-Guidelines

sentence consisting of 250 hours of community service, three

years of probation (including one year of house arrest), and a

fine of $250,000. Tomko was also ordered to undergo twenty-

2

eight days of in-house treatment for alcohol abuse. As discussed

below, this sentence is unreasonable in light of the

circumstances of this case and the sentencing factors outlined in

18 U.S.C. § 3553(a). It was therefore an abuse of discretion for

the District Court to impose it and we will vacate the judgment

and remand for resentencing.

I. BACKGROUND

William G. Tomko, Jr., pleaded guilty to a fraudulent

scheme to evade federal income taxes that revolved around the

construction of his luxurious new home in southwestern

Pennsylvania. From 1996 through 1998, during the construction

of this home, Tomko had numerous subcontractors falsify their

billing invoices to make it appear their work had been done for

his construction company, W.G. Tomko, Inc. (“Tomko, Inc.”),

at one of its job sites, rather than for Tomko, the individual, at

his personal residence. As a result, the company paid the

construction costs of the home, illegally deducted the expenses,

and Tomko did not properly report the value of the construction

costs paid for by the company as income on his personal income

taxes.1 The scheme resulted in a stipulated tax deficiency of

$228,557.

1

Tomko, Inc. is classified as a flow-through “Subchapter

S Corporation” under the federal tax code. An S Corporation’s

shareholders are required to include on their personal income tax

returns their share of the S Corporation’s separately stated items

of income, deduction, loss, and credit, and their share of non-

separately stated income or loss.

3

Numerous subcontractors were involved in Tomko’s

scheme. One subcontractor, for example, who installed the lawn

sprinkler system at Tomko’s residence, told Internal Revenue

Service-Criminal Investigation Division (IRS-CID) investigators

that he wrote billing invoices at Tomko’s behest that made it

appear his work had been done at one of five local area schools.

Because Tomko, Inc. was working jobs at these local schools,

the company could appear to be legitimately paying the

invoices.2 As a result, the construction costs were diverted from

Tomko personally to Tomko’s company, which then deducted

them as expenses. Similarly, another subcontractor, who

installed the granite and marble countertops throughout

Tomko’s home, told the IRS-CID investigators that Tomko had

stated “I’ll pay you but this is how I want it written up.” Tomko

then instructed him to prepare invoices indicating that the work

had been done at one of the local area schools so that Tomko,

Inc. could foot the bill and deduct the expenses.

There are even more egregious examples in the record of

this sort of fraudulent misrepresentation. One subcontractor,

who built custom cabinetry for Tomko’s house, stated that he

was told by Tomko to “be creative” in his billing and that he had

previously been “tipped” that Tomko was running the costs of

the construction through his business. Another subcontractor,

2

Upon the receipt of these invoices, Tomko, Inc. paid the

subcontractors in the normal course of business and posted the

expenses to the jobs that were listed on the invoices. Tomko as

an individual then attempted to evade personal income taxes by

omitting the company payment of his personal expenses on his

Form 1040 personal income tax return.

4

who installed stainless steel kitchen fixtures at the house, stated

that Tomko told him he “wanted this job run through [a local

school]” and that the billing invoice was to be sent to Tomko,

Inc. Another subcontractor, who did specialty wiring at the

house, stated that Tomko instructed him to prepare false

invoices indicating that the services he had provided for the

house were actually done for yet another local school.

IRS-CID investigators interviewed seventeen individuals

in all with respect to Tomko’s scheme. While the details vary

from individual to individual, in most cases the pattern of

conduct resembled the examples already described ! Tomko

attempted to evade paying taxes by fraudulently diverting

construction costs through his company, Tomko, Inc., deducting

the costs as business expenses, and then failing to report as

income the value of the services provided to him personally. On

October 4, 2001, an IRS-CID agent contacted Tomko to advise

him there was an allegation of unreported income against him

and to request an interview. On May 11, 2004, Tomko waived

indictment and pleaded guilty to a one-count information

charging tax evasion for 1997, in violation of 26 U.S.C. § 7201.

5

Tomko was sentenced on September 30, 2005.3 At the

sentencing hearing, the District Court properly recognized its

obligation to calculate the correct advisory United States

Sentencing Guidelines (“Guidelines”) offense level and

concluded that the applicable offense level was thirteen.4 The

3

The Government had previously requested a four-level

enhancement of the offense level under U.S.S.G. Manual

§ 3B1.1(a) for Tomko’s alleged leadership role in the offense.

It argued “what [Tomko] did was he got five or more people to

essentially assist him in his tax violation, and once he does that

. . . they’re participants if they had the criminal intent . . . we

submit these people do have criminal culpability.” In response,

counsel for Tomko argued the subcontractors did not necessarily

“know what was going on.” The Government stated, however,

that it had been provided with statements from the

subcontractors admitting they knew Tomko’s ultimate goal was

to evade the payment of taxes. The District Court observed that

“in order to be a participant, you have to be criminally

responsible . . . and simply knowing a crime is taking place does

not make you an aider or abettor.” The District Court then made

a tentative ruling that the four-level enhancement was not

applicable based upon the Government’s proffer that Tomko had

coerced some of the subcontractors into participating. As a

result, the District Court reasoned, they were not “willing

participants.” The Government has waived any appeal of this

ruling, mentioning it only by way of footnote in its brief and

expressly waiving any objection at oral argument.

4

August 17, 2007The resulting Guidelines level was

calculated as follows:

6

recommended Guidelines sentencing range for this offense level

is twelve to eighteen months of incarceration, but defense

counsel proposed, in lieu of imprisonment, that Tomko be

allowed to do volunteer work with Habitat for Humanity and

assist in its efforts to provide housing for victims of Hurricane

Katrina. Counsel stated “I wouldn’t ask that normally, Your

Honor, but it seems to me that if he were sitting in prison,

whether it’s minimum security or medium security or whatever,

and he could be helping the people who have been so devastated

so significantly in the New Orleans area and in the Gulf Coast

area . . . .”

Defense counsel then presented as a witness the

Executive Director of the Pittsburgh affiliate of Habitat for

Humanity, who was first contacted about Tomko’s interest in

volunteering, after Tomko’s guilty plea. The Director was

generous in her appraisal of Tomko. She testified that his

construction expertise and local contacts had helped the

organization immensely and that he had been able to contribute

substantially to a number of their ongoing construction projects.

Base Offense Level for violation of 26 U.S.C.

§ 7201: (16)

(§§ 2T1.1 and 2T4.1 (tax loss determined to be

$228,557.00))

Adjustment for Role in the Offense: (0)

Adjustment for Obstruction of Justice: (0)

Acceptance of Responsibility: (-3)

(§ 3E1.1(a) and (b))

Applicable Sentencing Guideline offense

level: (13)

7

She outlined the Pittsburgh Habitat for Humanity’s plans to aid

in the Gulf Coast reconstruction efforts by building

prefabricated housing (“Home in a Box Program”) for shipment

to the Gulf Coast and Tomko’s assistance in that effort.

Defense counsel also proffered testimony from Tomko,

Inc.’s chief financial officer stating that Tomko’s absence from

the company could very well place Tomko, Inc. in dire straits

financially. The Court indicated that it had reviewed and

considered all motions and briefs submitted by the parties. One

of these motions was a Motion for Downward Departure, in

which defense counsel stated as grounds for downward

departure: (1) the effect incarceration would have on Tomko’s

business, causing a job loss to more than 300 innocent

employees; (2) Tomko’s exceptional charitable and community

activities; (3) extraordinary acceptance of responsibility; and

(4) a combination of factors. The motion included as exhibits

over fifty letters from friends, family, and community leaders

attesting to Tomko’s generosity and compassion.

After stating that it had reviewed and considered all

motions and briefs submitted by the parties, the District Court

then proceeded to place on the record its consideration of the

Guidelines and the § 3553 factors.5 First, in considering the

5

Under § 3553(a), the relevant factors are:

(1) the nature and circumstances of the

offense and the history and characteristics

of the defendant;

(2) the need for the sentence imposed--

(A) to reflect the seriousness of the

8

offense, to promote respect for the law,

and to provide just punishment for the

offense;

(B) to afford adequate deterrence to

criminal conduct;

(C) to protect the public from further

crimes of the defendant; and

(D) to provide the defendant with needed

educational or vocational training, medical

care, or other correctional treatment in the

most effective manner;

(3) the kinds of sentences available;

(4) the kinds of sentence and the sentencing

range established . . .

(5) any pertinent policy statement--

(A) issued by the Sentencing Commission

pursuant to section 994(a)(2) of title 28,

United States Code, subject to any

amendments made to such policy

statement by act of Congress (regardless of

whether such amendments have yet to be

incorporated by the Sentencing

Commission into amendments issued

under section 994(p) of title 28); and

(B) that, except as provided in section

3742(g) [18 USCS § 3742(g)], is in effect

on the date the defendant is sentenced.

(6) the need to avoid unwarranted sentence

disparities among defendants with similar

records who have been found guilty of

9

nature and circumstances of the offense, § 3553(a)(1), the

District Court found that the offense was nonviolent, not

ongoing in nature, not part of a larger pattern of criminal

activity, and that there were no identifiable victims of the

offense. Regarding the history and characteristics of the

defendant, id., the Court noted Tomko’s good family history,

educational attainment, gainful employment, and negligible

criminal history. It also observed that Tomko had a drinking

problem that could benefit from treatment and moderate

depression that was already being treated. Second, in applying

§ 3553(a)(2), the Court considered that tax evasion was a serious

offense, but that Tomko had led an otherwise crime-free life and

there was little likelihood of recidivism. Finally, in addressing

§ 3553(a)(3), (4), and (6), the Court considered the kinds of

sentences available and “the need for unwarranted sentence

disparities among Defendants with similar records who have

been found guilty of similar conduct” and acknowledged that

“these considerations generally weigh in favor of sentencing a

Defendant within the Guidelines range.” The Court then

concluded:

However, this need to avoid unwarranted sentence

disparities among Defendants with similar records

also gives me enough leniency [] to understand

that there are differences and those differences

have to be taken into account. I recognize the

need for consistent sentencing; however, in this

similar conduct; and

(7) the need to provide restitution to any

victims of the offense.

10

case, given the Defendant’s lack of any

significant criminal history, his involvement in

exceptional charitable work and community

activity, and his acceptance of responsibility, we

find that a sentence that is mitigated by the factors

of 3553 are warranted.

In urging the District Court to sentence Tomko to

incarceration rather than home confinement, the Government

observed that Tomko had “cheated his Government out of the

money to build his house” and that “it would be a travesty of

justice to put [Tomko] in the very mansion he stole from the

Government, from these very citizens.” It also asserted that

probation would be sending the message “you can buy your way

out of trouble.” Speaking of the contracting industry

specifically, which it suggested was “riddled with tax fraud,” the

Government argued that a sentence of probation would be

interpreted as “go ahead, cheat on your taxes. If you get caught,

you’ll have to pay some money, but you won’t have to go to

prison.” The Government argued that “real deterrence is jail”

and “the threat of jail is real for these white collar criminals that

commit tax fraud” and “[w]hat we need to do is make good on

this threat.” Summing up its impassioned plea, the Government

concluded:

Bottom line, Your Honor, is that a sentence of

probation is just a rich guy buying his way out of

jail, a validation of the efficacy of cheating on

your taxes, a slap in the face to honest citizenry,

grossly unfair to our indigent Defendants, and a

11

travesty of justice. Do the necessary and right

thing in this case and send this tax cheat to jail.

The District Court then sentenced Tomko to 250 hours of

community service, three years of probation with one year of

home confinement, and ordered him to pay a fine of $250,000.

Tomko was also ordered to undergo twenty-eight days of in-

house alcohol treatment. As reason for this judgment, the

District Court stated:

Defendant stands before us for sentencing after

pleading guilty to tax evasion. A review of the

Defendant’s financial condition paints a picture of

a very wealthy man who had the means and the

wherewithal to easily pay whatever tax obligation

is owing. He was a successful businessman

earning a significant salary. There is simply no

reason for him to have done this.

This being said, I also note his negligible

criminal history, his record of employment, his

support for and ties in the community, and

extensive charitable work he has done. I have

also – therefore, I have sentenced him to a period

of probation, which I recognize is below the

guideline range. Given the Defendant’s wealth,

the guideline range in fines is insufficient

deterrence.

Therefore, I’ve done this mitigation of the

sentence under the provisions set forth in 18

12

U.S.C. § 3553 for the reasons I stated. Taking all

these factors into account, the Court sentences the

Defendant to a period of probation, a substantial

fine, and allows for repayment to the Internal

Revenue Service of his outstanding tax obligation.

The Court views that this sentence will address

the sentencing goals of punishment, deterrence

and rehabilitation.

As this excerpt demonstrates, the Court recognized that

the sentence was below the Guidelines, but explained that it had

mitigated the sentence in consideration of factors set forth in 18

U.S.C. § 3553. The Government filed a timely notice of appeal.

II. JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction to review the judgment of sentence

of the District Court under 18 U.S.C. § 3742(b)(1). See United

States v. Cooper, 437 F.3d 324, 327 (3d Cir. 2006). We review

the sentence imposed for “reasonableness,” the standard

announced by the Supreme Court in United States v. Booker,

543 U.S. 220 (2005), after the Court held that mandatory

application of the Guidelines was unconstitutional. Id. at

261-62.6 In Rita v. United States, No. 06-5754, 2007 WL

6

Our post-Booker precedent instructs district courts to

follow a three-step sentencing process: (1) Courts must

continue to calculate a defendant’s Guidelines sentence

precisely as they would have before Booker; (2) in doing so,

they must formally rule on the motions of both parties and state

on the record whether they are granting a departure and how that

13

1772146 (June 21, 2007) (affirming the application of a

presumption of reasonableness by a court of appeals to a district

court’s within-Guidelines sentence), the Court clarified that the

reasonableness standard of appellate review is akin to abuse of

discretion and accordingly deferential, giving trial judges broad

discretion to craft sentences that they believe promote the

sentencing goals stated in 18 U.S.C. § 3553(a). See id. at *9

(“[A]ppellate ‘reasonableness’ review merely asks whether the

trial court abused its discretion.”). However, before we can

conclude that a sentencing court properly exercised its

discretion, we must assure ourselves that it actually gave

“meaningful consideration” to the § 3553(a) factors and

“reasonably applied them to the circumstances of the case.”

departure affects the Guidelines calculation, and take into

account our Circuit’s pre-Booker case law, which continues to

have advisory force; and (3) finally, they are required to

“exercise[] [their] discretion by considering the relevant

[§ 3553(a)] factors,” Cooper, 437 F.3d at 329, in setting the

sentence they impose regardless of whether it varies from the

sentence calculated under the Guidelines. See generally United

States v. King, 454 F.3d 187 (3d Cir. 2006). We continue to

review the district courts’ factual findings at steps one and two

for clear error. See United States v. Grier, 475 F.3d 556, 570

(3d Cir., Feb. 5, 2007) (en banc) (“Despite the excision of

subsection (e) of 18 U.S.C. § 3742, this Court will continue to

review factual findings relevant to the Guidelines for clear error

and to exercise plenary review over a district court’s

interpretation of the Guidelines.”) (citations omitted). However,

the ultimate inquiry for purposes of Booker is whether the

resulting sentence is “reasonable.” See id. at 568.

14

Cooper, 437 F.3d at 330. Ultimately, “what we must decide is

whether the district judge imposed the sentence he or she did for

reasons that are logical and consistent with the factors set forth

in section 3553(a).” Id. (citation omitted).

The Court in Rita was careful to emphasize the

importance of effective substantive oversight by the Courts of

Appeals over sentencing in the District Courts. See Rita, 2007

WL 1772146, at *10. (“In sentencing, as in other areas, district

judges at time make mistakes that are substantive. At times,

they will impose sentences that are unreasonable. Circuit courts

exist to correct such mistakes when they occur.”).

Consequently, reasonableness review, while deferential, is not

utterly impotent. As the Second Circuit has stated, “review for

reasonableness, though deferential, [does] not equate to a rubber

stamp.” United States v. Rattoballi, 452 F.3d 127, 132 (2d Cir.

2006) (internal quotation marks omitted). Similarly, the

Eleventh Circuit has observed that there is “a difference between

deference and abdication.” United States v. Crisp, 454 F.3d

1285, 1290 (11th Cir. 2006).7 Indeed,

7

Distinguishing between deference and abdication in

reasonableness review may not always be an easy task, as

evidenced by the dissent’s disagreement with our application of

the standard of review in this case. The dissent argues we

impermissibly re-weigh the District Court’s consideration of

some of the § 3553(a) factors, and in doing so, engage in de

novo review. See Dissenting Op. at 49-50 (“The District Court

simply weighed the § 3553(a)(1) factors differently from how

the members of this panel would have weighed them. . . . [I]t is

not the role of this Court to review a factor de novo when

15

analyzing whether a variance is unreasonable.”). In order to

“determine whether the sentence ‘is unreasonable,’ with regard

to the § 3553(a) factors,” as Booker instructs, 543 U.S. at 261,

we must evaluate how a district court has weighed and balanced

those § 3553(a) factors. See Rita, 2007 WL 1772146, at *17

(Stevens, J., concurring) (explaining that § 3553(a) authorizes

sentencing judges to consider the history and characteristics of

the defendant and that “[a]s such, they are factors that an

appellate court must consider under Booker’s

abuse-of-discretion standard”). An appellate court’s

independent analysis of the § 3553 (a) factors and a sentence’s

consistency with those factors does not constitute de novo

review. That analysis is part and parcel of reasonableness

review. Booker, 543 U.S. at 261. (“[The § 3553(a)] factors in

turn will guide appellate courts, as they have in the past, in

determining whether a sentence is unreasonable.”). We cannot

determine whether a district court gave “meaningful

consideration” to the § 3553(a) factors without giving

meaningful consideration to those factors ourselves.

As an alternative to our approach, the dissent proposes an

exceedingly limited, procedurally focused review that would

require us to subordinate our own analysis of a sentence’s

substantive compliance with the § 3553(a) factors to the District

Court’s analysis. See Dissenting Op. at 49 (“The majority

would, apparently, have applied these factors differently had it

been the sentencing court. I would have done so as well.”); id.

at 39 (“I do not believe it presumptuous to state that each

member of this panel, if sitting as a district judge, would have

sentenced William Tomko to time in prison.”). Such an

approach, in which appellate courts refrain from exercising any

16

judgment regarding the appropriate substantive application of

the § 3553(a) factors, amounts to an abdication of review, not

reasonableness review. The upshot of the dissent’s approach

would be a system of non-review nearly indistinguishable from

the toothless pre-Sentencing Reform Act application of the

abuse of discretion standard, which left district court discretion

nearly unbounded and appellate courts effectively out of the

loop. The remedial opinion in Booker was careful to reject a

return to such an application, warning that “eliminat[ing]

appellate review entirely, would cut the statute loose from its

moorings in congressional purpose.” Id. at 262.

Substantive review of the sentence itself, as well as the

procedure used to fashion it, is necessary if we are to fulfill the

vital role Booker envisioned for appellate review. See Rita,

2007 WL 1772146, at *17 (Stevens, J., concurring) (“I believe

that [a] purely procedural review . . . is inconsistent with our

remedial opinion in Booker, which plainly contemplated that

reasonableness review would contain a substantive component.

After all, a district judge who gives harsh sentences to Yankees

fans and lenient sentences to Red Sox fans would not be acting

reasonably even if her procedural rulings were impeccable.”).

Furthermore, we do not believe our own precedent supports the

procedurally oriented approach the dissent advocates. See, e.g.,

Grier, 475 F.3d at 569 (“The Supreme Court explained in

Booker that review for ‘reasonableness’ is meant to assess the

ultimate sentence impose[d], to determine whether the

sentencing judge gave meaningful consideration to the factors

of 18 U.S.C. § 3553(a).”) (emphasis added). We “assess the

ultimate sentence imposed,” not only the procedure used to

fashion it, as the sentence itself is a reflection of the sentencing

17

While “reasonableness is a range, not a point,” Cooper, 437

F.3d at 332 n.11 (quoting United States v. Cunningham, 429

F.3d 673, 679 (7th Cir. 2005)), a range by definition has both

upper and lower limits that will be exceeded in some cases.

This case requires us to plumb the lower depths of that range.

III. DISCUSSION

The Government, as the appellant in this case, bears the

burden of establishing that the sentence imposed is unreasonable

in light of both the record and the § 3553(a) factors. Id. at 332.

The Government states that the “bottom line” in this case is

“that a rich defendant was allowed to buy his way out of a

prison sentence.” While we resist such ad hominem arguments

and do not think the finer issues presented by this appeal can be

so bluntly summarized, we do share what we perceive to be the

court’s application of the § 3553(a) factors. See Rita, 2007 WL

1772146, at *1 (“The federal courts of appeals review federal

sentences and set aside those they find ‘unreasonable.’”)

(emphasis added). If the substance of a sentence is “illogical

and inconsistent” with the § 3553(a) factors, we cannot conclude

that the sentence is a reasonable one merely because the

sentencing court has adhered to procedural directives. To put it

figuratively, there is a recipe for reasonableness that in many, if

not most cases, will lead to a palatable result, and we are not in

a position to protest if the result is a little too sweet or bitter for

our taste. However, when a number of key ingredients

prescribed by that recipe are obviously missing from the mix,

we cannot ignore the omission and feign satisfaction – we are

obliged to point out there is no proof in the pudding.

18

underlying sentiment of the Government’s appeal. That is, a

defendant who committed a very serious offense “did not

receive so much as a slap on the wrist – it was more like a soft

pat.” Crisp, 454 F.3d at 1291. As will more fully explain, we

believe the sentence imposed in this case is unreasonable in light

of the facts and circumstances revealed in the record and the §

3553(a) factors.

A.

The recommended Guidelines sentencing range for the

offense in this case was twelve to eighteen months of

incarceration. Although the Guidelines are advisory, they must

still be afforded due weight as a factor under § 3553(a)(4). In

addition, the Guidelines continue to be a vital force in

sentencing as they “reflect a rough approximation of sentences

that might achieve § 3553(a)’s objectives.” Rita, 2007 WL

1772146, at *8. See also id. (“[The Commission] has tried to

embody in the Guidelines the factors and considerations set

forth in § 3553(a).”); id. at *7 (“The upshot is that the

sentencing statutes envision both the sentencing judge and the

Commission as carrying out the same basic § 3553(a) objectives,

the one, at retail, the other at wholesale.”). When the

Guidelines, “drafted by a respected public body with access to

the best knowledge and practices of penology, recommend that

a defendant be sentenced to a number of years in prison, a

sentence involving no . . . imprisonment can be justified only by

a careful, impartial weighing of the statutory sentencing

factors.” United States v. Goldberg, __ F.3d __, 2007 WL

1827645, at *5 (7th Cir. June 27, 2007).

19

Notably, the Guidelines and its policy statements,

themselves both separately applicable as § 3553(a) factors, in

this case reiterate and reinforce the sentencing mandate of

§ 3553(a)(2), which directs the district courts to consider “the

need for the sentence imposed . . . to reflect the seriousness of

the offense, to promote respect for the law, [] to provide just

punishment for the offense . . . [and] to afford adequate

deterrence to criminal conduct. . . .” § 3553(a)(2)(A)-(B).

Guidelines policy statements, relevant under § 3553(a)(5)

(requiring consideration of “any pertinent policy statement . . .

issued by the Sentencing Commission . . . that . . . is in effect on

the date the defendant is sentenced”),8 emphasize the

seriousness of the offense of tax evasion, § 3553(a)(2)(A),

observing:

Under pre-guidelines sentencing practice, courts

sentenced to probation an inappropriately high

percentage of offenders guilty of economic

crimes, such as theft, tax evasion, antitrust

offenses . . . that in the Commission’s view are

‘serious’. . . .

8

The District Court referred to the 1997 Guidelines

Manual in its sentencing of Tomko. “While ordinarily a

guideline in effect at the time of sentencing will govern, a

defendant may not be prejudiced by a change in a guideline after

he commits an offense. Accordingly, when the guideline in

effect at the time of the offense is more favorable to the

defendant, it must be applied.” United States v. McAllister, 927

F.2d 136, 138 n.2 (3d Cir. 1991). Accordingly, all references in

this opinion are to the 1997 edition of the Guidelines Manual.

20

The Commission’s solution to this problem

has been to write guidelines that classify as

serious many offenses for which probation

previously was frequently given and provide for

at least a short period of imprisonment in such

cases.

U.S.S.G. Manual ch.1, pt.A, intro. cmt. 4(d).

In addition, Guidelines policy statements underscore the

need for tax prosecutions to provide just punishment and

promote respect for the law, § 3553(a)(2)(A), and provide for

deterrence, § 3553(a)(2)(B):

Criminal tax prosecutions serve to punish the

violator and promote respect for the tax laws.

Because of the limited number of criminal tax

prosecutions relative to the estimated incidence of

such violations, deterring others from violating

the tax laws is a primary consideration underlying

these guidelines. Recognition that the sentence

for a criminal tax case will be commensurate with

the gravity of the offense should act as a deterrent

to would-be violators.

U.S.S.G. Manual ch.2, pt.T, intro. cmt. (1997).

We share with the Government concern about the

message a sentence of probation for the indisputably serious

offense of willful tax evasion sends to the public at large and

would-be violators. Tomko’s sentence of probation included

21

home confinement in the very mansion built through the

fraudulent tax evasion scheme at issue in this case – an 8,000-

square-foot house on approximately eight acres, with a home

theater, an outdoor pool and sauna, a full bar, $1,843,500 in

household furnishings, and $81,000 in fine art. The perverse

irony of this gilded cage confinement was not lost on the

Government, it is not lost on us, and it would not be lost on any

reasonable public observer of these proceedings, including those

would-be offenders who may be contemplating the risks

associated with willful tax evasion. Under the circumstances, a

sentence of probation does not reflect the seriousness of the

offense, promote respect for the law, provide just punishment

for the offense, § 3553(a)(2)(A), or provide adequate

deterrence.9 § 3553(a)(2)(B).

9

The District Court did consider the need to afford

adequate deterrence to the defendant’s criminal conduct, i.e.,

“specific deterrence.” However, neither the record nor the

sentence reflects meaningful consideration of the equally

important need to deter others, i.e., “general deterrence.” Even

if the Guidelines did not so clearly articulate this need to provide

for general deterrence in tax evasion cases, our Court has

recognized that § 3553(a) requires the sentence imposed to be

“minimally sufficient to satisfy concerns of retribution, general

deterrence, specific deterrence, and rehabilitation.” United

States v. Serafini, 233 F.3d 758, 776 (3d Cir. 2000) (citation

omitted) (emphasis added). We do not suggest that more

explanation by the District Court solely on the subject of

deterrence would have satisfied us that the sentence in this case

is reasonable.

22

The Government argues that in this case “real deterrence

is jail,” and this position finds support in United States v. Ture,

450 F.3d 352 (8th Cir. 2006). The underlying facts of Ture and

our own case are nearly identical. Ture, like Tomko, induced

others to disguise income as deductible corporate expenses. Id.

at 354. This failure to report funds as income led to a tax

deficiency of $240,252 in Ture’s case, id. at 355, whereas in

Tomko’s case the stipulated tax deficiency was $228,557.

Finally, in both cases the Guidelines range was twelve to

eighteen months and both district courts sentenced the

defendants to probation and community service rather than

imprisonment. Concluding that the district court’s granting of

a downward variance was unreasonable, the Eighth Circuit

noted that “[a]s the Guidelines explain, willful tax evaders often

go undetected such that those who are caught . . . evading nearly

a quarter-million dollars in tax must be given some term of

imprisonment.” Id. at 358. It reasoned that, in the case of

willful tax evaders, “[t]he goal of deterrence rings hollow if a

prison sentence is not imposed . . . .” Id.

The Second Circuit has also had occasion to consider the

negative implications of sentencing white collar criminals to

terms of probation rather than imprisonment. In United States

v. Rattoballi, 452 F.3d 127 (2d Cir. 2006), the defendant pleaded

guilty to antitrust law violations. The recommended Guidelines

range was twenty seven to thirty three months but the district

court imposed a sentence consisting of five years probation,

including one year of home confinement, and $155,000 in

restitution. Id. at 135. In reversing and remanding that

judgment of sentence, the Second Circuit took note of the

Sentencing Commission’s considered judgment that “jail terms

23

are ordinarily necessary for antitrust violations because they

‘reflect the serious nature of and the difficulty of detecting such

violations.’” Id. at 136 (quoting Amendments to the Sentencing

Guidelines for United States Courts, 56 Fed. Reg. at 22,775

(1991)).

We find the reasoning of Ture and Rattoballi persuasive.

Although the sentence in this case, like the sentence in Ture,

represents “in effect, a 100% downward variance from the

Guidelines range,” 450 F.3d at 357, our focus is on the

qualitative, rather than quantitative, significance of this

variance. The result here means Tomko avoids serving time in

a federal prison, a result which, as we have already stated, we

believe is inconsistent with the overarching sentencing goals

outlined in § 3553(a)(2)(A)-(B).

Section 3553(a)(6) further directs sentencing courts

consider “the need to avoid unwarranted sentencing disparities

among defendants with similar records who have been found

guilty of similar conduct.” The Guidelines elaborate on this

theme, explaining:

Under pre-guidelines practice, roughly half of all

tax evaders were sentenced to probation without

imprisonment, while the other half received

sentences that required them to serve an average

prison term of twelve months. This guideline is

intended to reduce disparity in sentencing for tax

offenses and to somewhat increase average

sentence length. As a result, the number of purely

probationary sentences will be reduced. The

24

Commission believes that any additional costs of

imprisonment that may be incurred as a result of

the increase in the average term of imprisonment

for tax offenses are inconsequential in relation to

the potential increase in revenue.

U.S.S.G. Manual § 2T1.1 cmt. background.

The District Court stated on the record that “it recognized

the need for consistent sentencing” but imposed a sentence that

contributes to rather than reduces the marked disparity referred

to by the Commission. Furthermore, to the extent that the

District Court explained that such a sentence was warranted by

mitigating factors, as we discuss infra II.B, these mitigating

factors failed to distinguish Tomko from other “defendants with

similar records . . . found guilty of similar conduct.” Thus, we

cannot conclude that the sentence imposed in this case is logical

and consistent with § 3553(a)(6).

In addition, it is clear from the record that Tomko’s was

no garden variety tax evasion offense. Tomko’s scheme

spanned over a number of years, involved the planning,

coordination, and coercion of multiple individuals, required a

sophisticated scheme of concealment through fraudulent billing,

and resulted in a stipulated tax loss of over $225,000.10 Further,

10

The disputed portion of the record included evidence

that Tomko’s fraudulent scheme extended to the construction of

his Maryland vacation home. The Government presented

evidence that Tomko on more than one occasion told individuals

that this vacation home was “a gift from Uncle Sam.” The

25

the issue of whether the “leadership role” enhancement

requested by the Government was properly denied is not before

us and we do not conclude, as the Government has suggested,

that the District Court’s failure to rule on this disputed portion

of the record may form the sole basis of remand in this case.11

Viewed cumulatively, we conclude that the § 3553(a)

factors advocate in the strongest possible terms for a sentence

including a term of imprisonment. Swimming against this

Government argues that this portion of the record is relevant

insofar as it provides further evidence of Tomko’s past history

of and propensity for tax evasion. In addition, the Government

argues that this evidence underscores the need for a more

rigorous sentence to provide for adequate deterrence. However,

the Government was unable to provide reliable figures to

account for the significance of this alleged fraud to the

computed tax loss to the Government. Because this disputed

portion of the record apparently did not factor into the District

Court’s judgment of sentence, it does not factor into our

analysis.

11

The Government cites an unpublished opinion of the

Court as authority for this proposition. We must restate that we

continue to decline to cite to our not precedential opinions as

authority. As we have emphasized so often in the past, such

opinions are not regarded as precedents that bind the Court

because they do not circulate to the full Court before filing.

26

strong tide, the District Court concluded a downward variance12

was merited in Tomko’s case because of (1) his negligible

criminal history, (2) his record of employment, (3) his support

for and ties in the community, and his extensive charitable work;

and (4) a combination of these factors.

Under the circumstances, our review of the District

Court’s consideration of these mitigating factors takes on greater

significance. By this statement, we do not mean to suggest a

formulaic application of the “proportionality principle” that has

been adopted by so many of our sister circuits. However, we do

believe that closer appellate scrutiny of sentences that deviate

from the norm is necessary to prevent the unwarranted

disparities that bedeviled the pre-Sentencing Reform Act

discretionary sentencing regime and prompted reform. Booker,

543 U.S. at 253; see also id. at 255 (“Congress enacted the

sentencing statutes in major part to achieve greater uniformity

in sentencing”); id. at 263 (emphasizing that unreasonableness

review will play a central role in advancing Congress’s original

12

Our Court distinguishes between traditional departures

based on a specific Guidelines provision and sentencing

“variances” from the Guidelines that are based on Booker and

the § 3553(a) factors. United States v. Vampire Nation, 451

F.3d 189, 195 n.2 (3d Cir. 2006). The District Court in this case

did not grant Tomko a downward departure based on his

charitable acts but rather took them into consideration as a

mitigating factor in the course of its Cooper Step 3 analysis of

§ 3553(a). We treat the Court’s failure to rule on a departure

motion as a de facto denial. United States v. Colon, 474 F.3d

95, 99 n.8 (3d Cir. Jan. 29, 2007).

27

aim in enacting the Sentencing Reform Act because it will “tend

to iron out sentencing differences”). While we recognize that

the District Court is entitled to great deference in sentencing

post-Booker, we also must be mindful of the deference we owe

to Congress and its “basic statutory goal” of diminishing

unwarranted sentencing disparity.13 Id. at 256. If sentences that

vary substantially from the norm based on facts that are plainly

unexceptional are allowed to proliferate, we will fail to fulfill

our role in moving sentencing in the direction of uniformity, as

Booker envisioned.

B.

The Government argues that reliance on Tomko’s

negligible criminal history as a mitigating factor was

inappropriate insofar as negligible criminal history is already

factored into his base offense level. See U.S.S.G. Manual

§ 4A1.3 cmt. background (“[T]he lower limit of the range for

13

The remedial portion of the opinion in Booker

emphasizes that the primary objective of Congress in sentencing

reform was to reduce sentence disparity. See, e.g., 543 U.S. at

255 (“Congress enacted the sentencing statutes in major part to

achieve greater uniformity in sentencing . . . .”); id. at 264

(“avoiding unwarranted sentencing disparities” is part of

“Congress’ initial and basic sentencing intent”). Booker also

instructs that “[t]he courts of appeals review sentencing

decisions for unreasonableness,” and in so doing, “move

sentencing in Congress’ preferred direction, helping to avoid

excessive sentencing disparities while maintaining flexibility

sufficient to individualize sentences where necessary.” Id.

28

the Criminal History Category I is set for a first offender with

the lowest risk of recidivism. Therefore, a departure below the

lower limit of the guideline range . . . on the basis of the

adequacy of criminal history cannot be appropriate.”); Koon v.

United States, 518 U.S. 81, 111 (1996) (noting the Commission

already took low risk of recidivism into account in formulating

the criminal history category). However, given the flexible

nature of the sentencing scheme post-Booker, we cannot

conclude it is unacceptable for the same facts to be used both to

set the Guidelines range and to apply the other § 3553(a)

factors.14

The Seventh Circuit had opportunity to address the

identical issue that arises in this appeal, and reasoned “if Booker

means anything at all, it must mean that the court was permitted

to give further weight to a factor covered by a specific

14

We agree with the dissent that § 3553(a)(1) specifically

instructs sentencing courts to consider “the nature and

circumstances of the offense and the history and characteristics

of the defendant,” and does not state that this factor must be

excluded if a district court gives a defendant a sentence with a

significant variance. However, we disagree with the dissent that

we are without authority to review the extent to which the

District Court’s consideration of the history and characteristics

of a defendant is consistent with the overall sentencing goals

and directives of § 3553(a). See Rita, 2007 WL 1772146, at *17

(Stevens, J., concurring) (explaining that because history and

characteristics of the defendant are factors the district court is

authorized to consider, they “are factors that an appellate court

must consider under Booker’s abuse-of-discretion standard”).

29

guidelines adjustment, especially where (as is true here) that

factor is present to an exceptional degree or in some other way

makes the case different from the ordinary case where the factor

is present.” United States v. Wallace, 458 F.3d 606, 613 (7th

Cir. 2006) (internal quotation marks, citations omitted).15 We

believe that Wallace’s explication of a situation in which a

§ 3553(a) factor (here, § 3553(a)(1)) is persuasive. However,

while negligible criminal history may have been an appropriate

factor for the sentencing court to consider, on its own it does not

provide strong support for the variance in this case, given that it

was already factored into Tomko’s base offense level.

Similarly, record of employment is relevant as an aspect

of a defendant’s history and characteristics. Under the

Guidelines, courts have traditionally been discouraged from

considering a defendant’s education and vocational skills in

sentencing. See U.S.S.G. Manual § 5H1.2. The Guidelines

position on this factor, however, is difficult to square with the

Booker imperative that sentencing courts are to give meaningful

consideration to all of the factors under § 3553(a). Certainly, an

individual’s record of employment is relevant to that analysis.

More importantly, as we have already emphasized, the

Guidelines are a factor in sentencing, not a mandate. United

States v. Gunter, 462 F.3d 237, 249 (3d Cir. 2006). Therefore,

15

The Government in Wallace had argued that “the

district judge was mistaken to rely on Wallace’s remorse and

lack of criminal history, because the guidelines already

accounted for both through a downward adjustment for

acceptance of responsibility and the Category I criminal

history.” 458 F.3d 606, 613.

30

it is appropriate to consider record of employment as a

mitigating factor in sentencing, and in some cases may be

justified as fair consideration of a defendant’s “history and

characteristics” under § 3553(a)(1). See Rita, 2007 WL

1772146, at *17 (Stevens, J., concurring) (“Matters such as age,

education, mental or emotional condition, medical condition

(including drug or alcohol addiction), employment history, lack

of guidance as a youth, family ties, or military, civic, charitable,

or public service are not ordinarily considered under the

Guidelines [but are] matters that § 3553(a) authorizes the

sentencing judge to consider.”).

The Government argues, however, that in this particular

case the District Court’s granting Tomko a variance in part

because of his record of employment is “inconsistent with its

finding that defendant had threatened the contractors with

nonpayment and lost business opportunities unless they

submitted falsified invoices as defendant instructed.”

Appellant’s Br. 19. Admittedly, this finding creates

considerable tension. However, the District Court also heard

evidence that presented Tomko as “a person with a high school

education who built a multi-million dollar company and hires []

300 people and looks after them like family.” In addition, at

sentencing proceedings, counsel proffered testimony from

Tomko, Inc.’s chief financial officer stating that Tomko’s

absence from the company could place Tomko, Inc. in financial

trouble.

However, like negligible criminal history, this factor is

certainly not in itself a reasonable basis for the sentence in this

case. An admirable record of employment is a characteristic

31

common to many white-collar criminals and we are “disinclined

to accord the prospect of business failure decisive weight when

it is a direct function of a criminal investigation that had its

origins in the defendant’s own unlawful conduct.” Rattoballi,

452 F.3d at 136; United States v. Sharapan, 13 F.3d 781, 785

(3d Cir. 1994) (“[W]e see nothing extraordinary in the fact that

the imprisonment of the principal [of the business] for mail

fraud and filing false corporate tax returns may cause harm to

the business and its employees. The same is presumably true in

a great many cases in which the principal of a small business is

jailed for comparable offenses . . . .”); U.S. v. Reilly, 33 F.3d

1396, 1424 (3d Cir. 1994) (“[W]e see nothing extraordinary in

the fact that [the defendant’s] conviction may harm not only his

business interests but also those of his family members.”).

Finally, the District Court relied heavily on Tomko’s

community ties and purportedly extensive charitable work. The

Guidelines provide that a defendant’s charitable works are “not

ordinarily relevant,” and discourage downward departures from

the normal sentencing range based on good works – that is,

civic, charitable, or public service. See U.S.S.G. Manual

§ 5H1.11. We must note, however, that consideration of such

good works is not specifically prohibited, and, especially in the

post-Booker world, we believe it is well within the discretion of

a sentencing judge to consider such factors.16

16

Although not so stated by the District Court, a

defendant’s charitable work and support in the community, like

record of employment, may be considered under the rubric of

§ 3553(a)(1), which requires that a sentence imposed reflect “the

history and characteristics of the defendant.”

32

Under the Guidelines, departures for charitable work are

recommended only when the good works are “exceptional.” See

U.S.S.G. Manual ch. 5, pt. H, introductory cmt. (departures

based on discouraged factors should occur only “in exceptional

cases”); see also United States v. Serafini, 233 F.3d 758, 775 (3d

Cir. 2000) (explaining that in order to be entitled to a downward

departure for good works, a defendant’s civic service, charity,

and philanthropy must be “beyond the norm,” i.e.,

“exceptional,” for a person with his or her resources and social

status). We considered downward departures based on

charitable factors in U.S. v. (Fred E.) Cooper, 394 F.3d 172 (3d

Cir. 2005). In our case, however, as previously stated, a

variance rather than a departure is at issue. In addition, (Fred

E.) Cooper was decided prior to Booker and Cooper under a de

novo standard of review. Nonetheless, the case is still relevant

and persuasive, see United States v. Jackson, 467 F.3d 834, 839

(3d Cir. 2006) (“[O]ur Circuit’s pre-Booker case law . . .

continues to have advisory force.”), and provides valuable

insight.

In (Fred E.) Cooper, the defendant was convicted of

various offenses related to an abuse of his position as chief

executive and financial officer of a large corporation. At his

sentencing hearing, the district court heard testimony and

received letters describing defendant’s various charitable

activities, which included organizing and coaching a youth

football team in a depressed area, mentoring team members,

paying the cost for several of them to attend a better high school,

and assisting one of the team members to attend college. The

district court granted the defendant a four-level downward

departure for these charitable activities, finding that his acts

33

were “hands-on personal sacrifices” that had a dramatic and

positive impact on the lives of others and that were exceptional.

394 F.3d at 173-74.

On appeal, we noted that “more is expected of ‘high-level

business executives’ who enjoy sufficient income and

community status so that they have the opportunities to engage

in charitable and benevolent activities” and that “it is usual and

ordinary, in the prosecution of similar white-collar crimes

involving high-ranking corporate executives . . . to find that a

defendant was involved as a leader in community charities, civic

organizations, and church efforts.” Id. at 176-77 (citations

omitted). And although we upheld the district court’s decision,

we affirmed that the relevant inquiry is whether the proffered

charitable activities are “exceptional enough to overcome the

judgment of the Sentencing Commission that a record of good

works is a discouraged basis for departure.” Id. at 177.

Furthermore, the (Fred. E.) Cooper dissent was even

more demanding, stating “it cannot be said that Cooper’s civic

acts were in any way ‘extraordinary’ when compared to other

cases involving similarly-situated defendants presenting

charitable acts.” Id. at 181. In addition, the dissent voiced its

suspicion of the motives for some of the defendant’s charitable

activities noting that he did not begin some of his charitable

work until after the inception of the investigation that led to the

conviction. Id. (“This timing, of course, calls into question the

true impetus undergirding Cooper’s charity.”). Invoking the

(Fred E.) Cooper dissent, the Government alleges that Tomko’s

work for Habitat for Humanity was contrived as a “crass effort

to improve defendant’s sentence.” Appellant’s Br. 23. This

34

allegation finds support in Tomko’s own concession that he

began working on this community project as he was anticipating

that community service might be required of him.

However, the District Court also reviewed more than fifty

letters of support, most of which paint a picture of Tomko as a

man with great concern for his employees and his community.

Some attest to truly admirable acts of kindness. However,

simply “being a ‘good person,’ a quality indeed to be admired,

does not qualify as extraordinary or exceptional civic or

charitable conduct.” Serafini, 233 F.3d at 773. Furthermore, the

Government views these letters with jaundiced eyes, noting that

many if not most of these letters were from Tomko’s own

employees and that one might expect such individuals to be

easily “persuaded” to pen arguably overwrought letters of

support and concern.

We find it unnecessary to weigh in with our own cynical

speculations as to the underlying motives of the authors of these

letters, as we find that Tomko’s “support in the community” and

“charitable work” simply did not justify the variance that was

granted in this case. Even assuming arguendo the purest of

motives for Tomko’s well timed interest in Habitat for

Humanity, and viewing as completely altruistic the letters

attesting to his beneficence, this single factor fails to justify the

downward variance granted in this case. As a number of our

sister circuits have recognized, “unjustified reliance upon any

one [§ 3553(a)] factor is a symptom of an unreasonable

sentence.” Rattoballi, 452 F.3d at 137 (2d Cir. 2006); accord

United States v. Hampton, 441 F.3d 284, 288-89 (4th Cir. 2006);

35

United States v. Givens, 443 F.3d 642, 646 (8th Cir. 2006);

United States v. Cage, 451 F.3d 585, 594-95 (10th Cir. 2006).

Viewed cumulatively, the three factors considered by the

District Court as mitigating factors ! negligible criminal history,

support and ties in the community and charitable work,

employment record ! pale in comparison to the numerous §

3553(a) factors suggesting that a term of imprisonment is

warranted in cases of tax evasion as willful and brazen as

Tomko’s. A sentence of mere probation, in light of these

factors, is unreasonable and it was an abuse of discretion for the

District Court to impose it. We do not rule that any below-

Guidelines sentence would have been improper in this case, only

that the District Court abused its discretion in rendering this

particular below-Guidelines sentence. The new advisory

Guidelines regime leaves ample room for discretion on the part

of the District Court, but “discretion, like the hole in the

doughnut, does not exist except as an area left open by a

surrounding belt of restriction.” Compagnie des Bauxites de

Guinea v. Insurance Co. of North Am., 651 F.2d 877, 884 (3d

Cir. 1981) (quoting R. Dworkin, Taking Rights Seriously 31

(1977)).

Furthermore, we disagree with the dissent that the hefty

fine imposed on Tomko mitigates the unreasonableness of the

sentence in this case. Such a justification for leniency in

sentencing only reinforces the perception that wealthy

defendants can buy their way out of a prison sentence, and is

inconsistent with Congress’s clear intent, as expressed in the

Sentencing Reform Act and § 3553(a), to reduce unwarranted

disparities in sentencing, so often based on socio-economic

36

status. See, e.g., United States v. Harpst, 949 F.2d 860, 863 (6th

Cir. 1991) (“[P]ermitting greater leniency in sentencing in those

cases in which restitution is at issue and is a meaningful

possibility (i.e., generally white-collar crimes) would, we

believe, nurture the unfortunate practice of disparate sentencing

based on socio-economic status, which the guidelines were

intended to supplant.”); United States v. Seacott, 15 F.3d 1380,

1389 (7th Cir. 1994) (“Allowing sentencing courts to depart

downward based on a defendant’s ability to make restitution

would thwart the intent of the guidelines to punish financial

crimes through terms of imprisonment by allowing those who

could pay to escape prison. It would also create an

unconstitutional system where the rich could in effect buy their

way out of prison sentences.”).

IV. CONCLUSION

Our touchstone in reviewing sentences post-Booker is

“reasonableness” and a below-Guidelines sentence will not

always be an unreasonable one. However, even below-

Guidelines sentences must be logical and consistent with the

sentencing goals articulated in § 3553(a). The sentence in this

case was not. As such, it is unreasonable and the District Court

abused its discretion in imposing it. We will vacate the

judgment of the District Court and remand for resentencing in

accordance with this opinion.

37

Smith, Circuit Judge, dissenting.

I do not believe it presumptuous to state that each

member of this panel, if sitting as a district judge, would have

sentenced William Tomko to time in prison. However, this

Court does not review sentences de novo. Instead, we afford

“deference to the District Court because it is in the best position

to determine the appropriate sentence in light of the particular

circumstances of the case.” United States v. Dragon, 471 F.3d

501, 506 (3d Cir. 2006) (quotation omitted). Post-Booker,

reasonableness review is the standard, and it “merely asks

whether the trial court abused its discretion.” Rita v. United

States, --- U.S. --- , 127 S.Ct. 2456, 2465 (2007); see also id. at

2470-71 (Stevens, J., concurring) (“Simply stated, Booker

replaced the de novo standard of review required by 18 U.S.C.

§ 3742(e) with an abuse-of-discretion standard that we called

‘reasonableness’ review.” (citation omitted)). Rita reminds us

that the Guidelines “reflect a rough approximation of sentences

that might achieve § 3553(a)’s objectives,” id. at 2465, and that

the Sentencing Commission has carried out the objectives at

“wholesale.” Id. at 2463. The sentencing judge, in contrast,

carries out the § 3553(a) objectives at “retail,” id., so that “[t]he

sentencing judge has access to, and greater familiarity with, the

individual case and the individual defendant before him than the

Commission or the appeals court.” Id. at 2469.

In this case, the District Court provided a thorough

discussion of how it meaningfully considered the factors

outlined in 18 U.S.C. § 3553(a), and then reasonably applied

38

them to the facts of the case before it. The majority disagrees

and, in doing so, makes at least three major errors.

First, the majority adopts a rigid version of the

proportionality principle in the guise of its formulation of

substantive reasonableness that has never been employed by this

Court. The proportionality principle is “the proposition that the

strength of the justification needed to sustain an

outside-Guidelines sentence varies in proportion to the degree

of the variance.” Rita, 127 S.Ct. at 2467. The appropriateness

of such a principle will be taken up by the Supreme Court next

term in United States v. Gall, No. 06-7949. Perhaps to avoid the

obvious conclusion that we should hold this case c.a.v. pending

the resolution of Gall, the majority instead states that, in its

reasoning, “we do not mean to suggest a formulaic application

of the ‘proportionality principle’ that has been adopted by so

many of our sister circuits.” Maj. Op. at 28. Yet the majority

implicitly adopts such a principle by concluding that the

sentence in this case, which varies from the Guidelines, is

unreasonable because it concludes “that the § 3553(a) factors

advocate in the strongest possible terms for a sentence including

a term of imprisonment.” Maj. Op. at 27. In other words, the

majority attempts to circumvent the proportionality principle by

arguing that the substance of Tomko’s sentence must be

unreasonable because the sentence falls outside the majority’s

application of the § 3553(a) factors. This reasoning parallels the

proportionality principle and even goes beyond the version of

the proportionality principle which requires a sentencing judge

39

to find extraordinary circumstances to justify a substantial

variance, which is the question presented in Gall.17 The

majority suggests that even an extraordinary circumstance

finding would not have been enough for the District Court to

justify its sentence in this case. The majority says this is

because the crime was so egregious and the variance was so

great. Respectfully, this sounds to me like proportionality.

Second, the majority departs from our post-Booker

jurisprudence by conducting what amounts to de novo review of

the sentencing court. In no post-Booker case has this Court ever

asked a sentencing court to do more than the District Court did

here. The majority opinion curtails the deference we accord

sentencing courts to impose a reasonable sentence, regardless of

whether that sentence substantially varies either up or down

from the Guidelines range.

Third, and related to the first two errors I cite, the

majority’s position provides no guidance for district courts. The

effect of the majority opinion will necessarily be to confuse

17

The question presented in Gall is “[w]hether, when

determining the ‘reasonableness’ of a district court sentence

under United States v. Booker, 543 U.S. 220 (2005), it is

appropriate to require district courts to justify a deviation from

the United States Sentencing Guidelines with a finding of

extraordinary circumstances.” See

http://www.supremecourtus.gov/qp/06-07949qp.pdf (last

accessed August 14, 2007).

40

district courts as to what circumstances would ever justify a

substantial variance, regardless of the validity of the reasons for

the variance given by the sentencing court.18 This effect runs

contrary to both the deference formerly granted to sentencing

courts as well as our appellate role of examining the legitimacy

of the reasons given by the sentencing court for exercising its

decisionmaking discretion. See Rita, 127 S.Ct. at 2468 (“The

sentencing judge should set forth enough to satisfy the appellate

court that he has considered the parties’ arguments and has a

reasoned basis for exercising his own legal decisionmaking

authority.”); United States v. Charles, 467 F.3d 828, 833 (3d

Cir. 2006) (describing “the high level of deference we accord

sentencing judges”). Further, I suggest that the majority’s

reasoning applies with equal force to aggravated factors

counseling in favor of substantial upward variations, so that the

majority’s holding has the potential for unintended

consequences falling outside its reasoning.

Because I believe that the majority fashioned a new

standard for reasonableness unsupported by precedent, failed to

accord the District Court appropriate deference under our post-

Booker jurisprudence, and failed to show how the District Court

abused its discretion, I respectfully dissent. I would affirm the

18

A district court will also face the difficult task of

determining when a variance is substantial. In this case, for

example, the difference between Tomko’s actual sentence and

the lower end of his Guidelines range is only 12 months.

41

sentence of the District Court because it is reasonable in light of

the District Court’s discussion of the circumstances of this case

and the sentencing factors outlined in 18 U.S.C. § 3553(a).

I.

The majority appropriately characterizes William

Tomko’s scheme to defraud the Government of federal income

taxes. He is a tax cheat, and an unsympathetic one. His crime

resulted in a tax deficiency of over $225,000. The Sentencing

Guidelines suggested a sentencing range of 12 to 18 months of

incarceration and a fine range of $3,000 to $30,000. The

District Court sentenced Tomko to three years of probation

(including one year of house arrest), 250 hours of community

service, and the statutory maximum fine of $250,000. The

District Court also ordered him to undergo 28 days of in-house

treatment for alcohol abuse.

The Supreme Court’s decision in Booker holding that the

federal Sentencing Guidelines are advisory represented a

tectonic shift in federal sentencing. United States v. Booker, 543

U.S. 220 (2005); United States v. Grier, 475 F.3d 556, 565 (3d

Cir. 2007) (en banc) (stating that the Guidelines range now

“merely serves as one of a number of factors to be considered in

fashioning the ultimate sentence”). The Supreme Court stated

that appellate courts are to review sentences for

“reasonableness” in light of the factors enumerated in 18 U.S.C.

§ 3553(a), but granted considerable leeway to the appellate

42

courts to define reasonableness. Booker, 543 U.S. at 261-62. In

United States v. Cooper, 437 F.3d 324, 329-30 (3d Cir. 2006),

we stated that sentencing courts must give “meaningful

consideration to the § 3553(a) factors” and “ascertain whether

those factors were reasonably applied to the circumstances of

the case.” The party challenging the sentence has the burden of

demonstrating unreasonableness. Id. at 332. This Court does

not presume that a sentencing court considered the factors solely

because the sentence falls within the Guidelines range, id. at

329-30, which is still valid post-Rita. See Rita, 127 S. Ct. at

2462 (stating that the primary issue “is whether a court of

appeals may apply a presumption of reasonableness” to a within-

Guidelines sentence (emphasis added)). Where, as here, a

sentence falls outside of the Guidelines range, we also do not

presume that the sentence is unreasonable. See United States v.

Schweitzer, 454 F.3d 197, 204 (3d Cir. 2006). The Supreme

Court will take up this question next term in United States v.

Gall, No. 06-7949.

The majority, in my view, fails to recognize the length to

which the District Court properly gave meaningful consideration

to the § 3553(a) factors and reasonably applied them to Tomko.

The District Court in the September 2005 sentencing hearing

gave ample consideration to the factors:

I am to consider first the nature and circumstances

of the offense, which are as follows. The offense

was not violent in nature. The offense was not

43

ongoing in nature. The offense was not part of a

larger pattern of criminal activity. There are also

no identifiable victims of the offense. I am also to

consider the history and characteristics of the

Defendant. [The District Court here discussed

Tomko’s childhood, family, education, drinking

problem, and prior criminal conviction for

operating a boat while intoxicated.] I am also

going to consider the need for the sentence

imposed to reflect the seriousness of the offense,

promote respect for the rule of law, and provide

just punishment for the offense. Here, the

Defendant has pled guilty to tax evasion, which is

a serious offense. I am to afford adequate

deterrence to the Defendant’s criminal conduct.

Here, the Defendant has one prior criminal

incident which is alcohol-related, but has

otherwise led a crime-free life. I am to protect the

public from further crimes of this Defendant.

Here, the Defendant has not been involved in

other crimes even though this is a serious offense

here. The likelihood of recidivism in this case I

find is very little. And to provide Defendant with

needed educational/vocational training, medical

care, or other correctional treatment in the most

effective manner possible. I am also to consider

the kind of sentences available, including federal

prison, house arrest, probation and fines, which I

44

am going to do. I am to consider the need for

unwarranted sentence disparities among

Defendants with similar records who have been

found guilty of similar conduct. These

considerations generally weigh in favor of

sentencing a Defendant within the guideline

range. However, this need to avoid unwarranted

sentence disparities among Defendants with

similar records also gives me enough leniency,

though, to understand that there are differences

and those differences have to be taken into

account. I recognize the need for consistent

sentencing; however, in this case, given the

Defendant’s lack of any significant criminal

history, his involvement in exceptional charitable

work and community activity, and his acceptance

of responsibility, we find that a sentence that is

mitigated by the factors of 3553 [is] warranted.

The District Court explicitly examined subsections (a)(1),

(a)(2)(A), (a)(2)(B), (a)(2)(C), (a)(2)(D), (a)(3), (a)(4), and

(a)(6) of § 3553. The District Court also ordered restitution.

See 18 U.S.C. § 3553(a)(7).

In addition to the previously quoted passage, the District

Court also stated:

45

The reason for the sentence is as follows:

Defendant stands before us for sentencing after

pleading guilty to tax evasion. A review of

Defendant’s financial condition paints a picture of

a very wealthy man who had the means and

wherewithal to easily pay whatever tax obligation

is owing. He was a successful businessman

earning a significant salary. There is simply no

reason for him to have done this.

This being said, I also note his negligible criminal

history, his record of employment, his support for

and ties in the community, and the extensive

charitable work he has done. I have also –

therefore, I have sentenced him to the period of

probation, which I recognize is below the

guideline range. I also recognize that the fine is

above the guideline range. Given the Defendant’s

wealth, the guideline range in fines is insufficient

deterrence.

Therefore, I’ve done this mitigation of the

sentence under the provisions set forth in 18

U.S.C. § 3553 for the reasons I stated. Taking all

these factors into account, the Court sentences the

Defendant to a period of probation, a substantial

fine, and allows for repayment to the Internal

Revenue Service of his outstanding tax obligation.

46

The Court views that this sentence will address

the sentencing goals of punishment, deterrence

and rehabilitation.

As this passage indicates, the District Court gave meaningful

consideration to the § 3553(a) factors and reasonably applied

them to the particular facts of Tomko’s case. Cf. United States

v. Jackson, 467 F.3d 834, 842 (3d Cir. 2006) (upholding a

sentence where the District Court gave far less explicit

consideration to the factors).

In determining whether a sentencing court has reasonably

applied the § 3553(a) factors, we review the sentence to ensure

that it is both logical and consistent with the factors. Cooper,

437 F.3d at 330. Here, the District Court gave specific reasons

for why Tomko’s sentence varies from the Guidelines range.

This variance took into account Tomko’s negligible criminal

history, community ties, and charitable work as reasons for not

incarcerating Tomko, while also factoring in his substantial

wealth as a reason for imposing a fine far above the Guidelines

range.

The majority would, apparently, have applied these

factors differently had it been the sentencing court. I would

have done so as well. “That we may ourselves have imposed a

sentence different from that of the district court, based on our

own de novo assessment of the evidence, is no basis to overturn

the judgment.” Schweitzer, 454 F.3d at 204; see also United

47

States v. Bungar, 478 F.3d 540, 543 (3d Cir. 2007) (stating that,

as an appellate court, we are “highly deferential” when

evaluating Cooper’s reasonable application prong). Here, the

District Court simply weighed the § 3553(a)(1) factors

differently from how the members of this panel would have

weighed them. For example, the majority states that “while

negligible criminal history may have been an appropriate factor

for the sentencing court to consider, on its own it does not

provide strong support for the variance in this case, given that it

was already factored into Tomko’s base offense level.” Maj.

Op. at 31. This is enough for the majority to consider Tomko’s

sentence unreasonable.

Similarly, the majority discounts Tomko’s strong record

of employment. The majority correctly states that “record of

employment is relevant as an aspect of a defendant’s history and

characteristics.” Maj. Op. at 31. It goes on to conclude,

however, that “this factor is certainly not in itself a reasonable

basis for the sentence in this case.” Maj. Op. at 32. Again, it is

not the role of this Court to review a factor de novo when

analyzing whether a variance is reasonable. See Cooper, 437

F.3d at 330.

The District Court’s emphasis on Tomko’s “support for

and ties in the community, and the extensive charitable work he

has done,” is also fully supported by the record. Several dozen

letters were written on Tomko’s behalf prior to his sentencing.

These letters indicate that Tomko performed pre-indictment

48

charitable acts that involved not only money, but also his

personal time. For several years, Tomko participated in a

holiday gift drive in Finleyville, Pennsylvania. He provided

Christmas gifts for 30 needy families, provided gloves and

scarves to inner city children at a daycare center, and also

helped other families in Marianna, Pennsylvania during the

holiday season. One letter stated that Tomko performed all of

this work anonymously. On a more individual basis, another

letter noted how Tomko “also helped a woman in the South Park

area that had recently lost her husband and was left with four

small children to raise by her[self].” He also went out of his

way to accommodate his employees who needed extra time off

for personal reasons. Tomko participated in other acts of charity

for those in need. A pastor in the community noted Tomko’s

pre-indictment proclivity for aiding the poor, and stated that

“[b]y requiring him to perform ... community service, in lieu of

incarceration, not only will you help the impoverished lives of

the poor, but you will also transform the life of Bill Tomko.”

At Tomko’s sentencing proceeding, the Executive

Director of Habitat for Humanity’s Pittsburgh affiliate testified

on Tomko’s behalf. The Executive Director stated that the

Pittsburgh affiliate had been in danger of being closed down by

the national Board of Directors because of its precarious

financial situation. The Executive Director testified that Tomko

became personally involved in the construction and

rehabilitation of several houses in the Pittsburgh area. Again,

Tomko devoted not only a portion of his wealth, but also his

49

personal time. The Executive Director stated that, for one house

that had water runoff problems, “Mr. Tomko came and not only

visited with the homeowner, inspected the basement to see what

was the matter with the outside of the house, but also worked

with the city to determine how best to redirect the water away

from the yard. He put in the grading, he completed the front

sidewalk, the back driveway, and put in a curb for the city.”

The Executive Director gave other examples of Tomko

providing his construction expertise to aid the Pittsburgh

affiliate. The Executive Director then testified as to how Tomko

could benefit Habitat for Humanity’s efforts to build houses for

poor families whose residences were damaged or destroyed by

Hurricane Katrina. The Executive Director of the New Orleans

affiliate confirmed that Tomko would be useful in these efforts.

The Pittsburgh Executive Director concluded her direct

testimony by reading a portion of a letter she wrote to the

District Court, which stated that “there is no one like Bill

Tomko who provides timely, unselfish, and meaningful

contributions to Pittsburgh Habitat for Humanity’s construction

operations.”

The majority recognizes that “it is well within the

discretion of a sentencing judge to consider” charity. Maj. Op.

at 33. The majority, though, finds “that Tomko’s ‘support in the

community’ and ‘charitable work’ simply did not justify the

variance that was granted in this case,” and concludes that “this

single factor fails to justify the downward variance granted in

this case.” Maj. Op. at 36.

50

In United States v. Fred E. Cooper, 394 F.3d 172, 176-78

(3d Cir. 2005), this Court held that a four-level downward

departure was warranted because of the defendant’s good works

that were of a personal nature. Id. at 176-78. This departure

resulted in three years probation for a defendant who pleaded

guilty to one count of securities fraud and one count of

subscribing to a false tax return. Notably, this Court examined

the sentence de novo because it fell under the PROTECT Act.

Accordingly, review under the PROTECT Act is less deferential

to a sentencing court than post-Booker reasonableness review

under Cooper and its progeny. Fred E. Cooper weighs in favor

of affirming Tomko’s sentence because of the similar facts and

the more stringent standard of review. At a minimum, although

Fred E. Cooper involved a departure rather than a variance, it is

instructive as to how this Court has viewed charitable activities

for sentence mitigation. See Jackson, 467 F.3d at 839

(instructing that “[p]re-Booker law regarding Guidelines

departures, therefore, necessarily informs the sentencing

process–for district courts and for us”) (citing United States v.

Gunter, 462 F.3d 237, 247 (3d Cir. 2006), and United States v.

King, 454 F.3d 187, 196 (3d Cir. 2006)).

With respect to Tomko’s negligible criminal history,

record of employment, and charitable work in the community,

the majority separated out each of these factors and then

concluded that none of them individually provided justification

for a substantial downward variance. Perhaps anticipating a

critique that an appellate court’s role is to view these factors

51

cumulatively, the majority makes the conclusory statement that

“[v]iewed cumulatively, the three factors considered by the

District Court as mitigating factors–negligible criminal history,

support and ties in the community and charitable work,

employment record–pale in comparison to the numerous §

3553(a) factors suggesting that a term of imprisonment is

warranted in cases of tax evasion as willful and brazen as

Tomko’s.” Maj. Op. at 37. Missing from this statement is an

adequate discussion of why, cumulatively, the District Court’s

extensive discussion of these factors is an abuse of discretion.

In sum, the majority exercises what amounts to de novo

review and does not accord proper deference to the District

Court’s sentence, which was imposed after meaningful

consideration and reasonable application of the § 3553(a)

factors. Under our deferential reasonableness review, Tomko’s

sentence should be affirmed. See also 18 U.S.C. § 3553(a)

(“The court shall impose a sentence sufficient, but not greater

than necessary, to comply with the purposes set forth in [§

3553(a)(2)].”).

Against the backdrop of the District Court’s thorough

discussion of the sentencing factors as they apply to Tomko, the

majority stresses that the District Court did not specifically

mention § 3553(a)(5), which states that a pertinent policy

statement from the Sentencing Guidelines is a factor under §

3553(a). For crimes such as Tomko’s, there are two pertinent

policy statements. They emphasize the role of general

52

deterrence and reducing disparity in sentencing. See U.S.

SENTENCING GUIDELINES MANUAL ch.2, pt.T, introductory cmt.;

§ 2T1.1, cmt. background. This latter policy statement mirrors

§ 3553(a)(6). The majority invokes this omission as the primary

ground for overturning Tomko’s sentence as unreasonable. But

see United States v. Dragon, 471 F.3d 501, 505 (3d Cir. 2006)

(stating that “judges need not routinely state that they have read

the entire guidelines manual or all policy statements of the

United States Sentencing Commission”). There are two

main problems with the manner in which the majority relies on

Sentencing Guideline policy statements. First, in doing so, the

majority functionally exercises de novo review over Tomko’s

sentence. I have already discussed why, under reasonableness

review rather than de novo review, Tomko’s sentence should be

affirmed.

Second, the majority overlooks that, even if we are to

give significant weight to these policy statements, the District

Court properly considered them in this case.

The “introductory commentary” quoted by the majority

states, in part, that “[b]ecause of the limited number of criminal

tax prosecutions relative to the estimated incidence of such

violations, deterring others from violating the tax laws is a

primary consideration underlying these guidelines.” U.S.

SENTENCING GUIDELINES MANUAL ch.2, pt.T, introductory cmt.

This focus on general deterrence is defined in the next sentence

of the introductory comment, which states that “[r]ecognition

53

that the sentence for a criminal tax case will be commensurate

with the gravity of the offense should act as a deterrent to

would-be violators.” Id. The District Court in its lengthy

discussion excerpted above explained why Tomko’s sentence

was commensurate with the gravity of his offense, but did so in

light of the other § 3553(a) factors.19 Nothing in this

19

The majority unpersuasively relies on United States v.

Ture, 450 F.3d 352 (8th Cir. 2006), as support for its viewpoint.

Maj. Op. at 23-24. To begin, the Eighth Circuit in Ture did not

appear to grant the sentencing judge the type of discretion given

by our Court in our post-Booker jurisprudence. Indeed, the

Eighth Circuit stated that “[a]n extraordinary variance from the

Guidelines range must be ‘supported by comparably

extraordinary circumstances’.” Id. at 357 (quoting United States

v. Claiborne, 439 F.3d 479, 481 (8th Cir. 2006)). As the

majority well knows, our Court has not adopted such a standard.

Any serious reliance on Ture further counsels in favor of

holding the present case c.a.v. pending the Supreme Court’s

disposition of United States v. Gall, No. 06-7949, which will

examine the propriety of the lack of sentencing court deference

in Claiborne and similar cases. There is also no indication that

the sentencing court in Ture gave as comprehensive a discussion

of the § 3553(a) factors as was given in the present case.

Further, the sentencing court in Ture did not fine the defendant

or even order restitution. Id. at 355. Tomko, though, was fined

upward of eight times the Guidelines range. Similarly, the

majority relies on the Second Circuit’s decision in United States

v. Rattoballi, 452 F.3d 127 (2d Cir. 2006), even though that

Court has adopted a more stringent standard of reasonableness

54

introductory comment instructs courts to ignore § 3553(a)(1),

(a)(2)(A), (a)(2)(B), (a)(2)(C), (a)(2)(D), (a)(3), (a)(4), (a)(6),

and (a)(7) because of the language in the comment.

The majority asserts that “[a]s a number of our sister

circuits have recognized, ‘unjustified reliance upon any one [§

3553(a)] factor is a symptom of an unreasonable sentence.’”

Maj. Op. at 36-37 (quoting United States v. Rattoballi, 452 F.3d

127, 137 (2d Cir. 2006); accord United States v. Hampton, 441

F.3d 284, 288-89 (4th Cir. 2006); United States v. Givens, 443

F.3d 642, 646 (8th Cir. 2006); United States v. Cage, 451 F.3d

585, 595-96 (10th Cir. 2006)). I agree. But the majority cannot

justifiably rely on its interpretation of pertinent policy

statements under § 3553(a)(5) to the exclusion of the other §

3553(a) factors. Cf. United States v. Lloyd, 469 F.3d 319, 324

(3d Cir. 2006) (“Under Booker, it is entirely appropriate for a

court to consider pertinent policy statements.”). The majority

cites the applicable policy statement on criminal tax laws to

state that general rather than specific deterrence is of paramount

importance in these types of cases. See U.S. SENTENCING

GUIDELINES MANUAL ch.2, pt.T, introductory cmt. Recognizing

that there is not a mandatory requirement in the Guidelines to

consider general deterrence in tax evasion cases, the majority

instead cites to a decision by this Court that a sentence must be

“minimally sufficient to satisfy concerns of retribution, general

than we have. See, e.g., United States v. Trupin, 475 F.3d 71, 74

(2d Cir. 2007).

55

deterrence, specific deterrence, and rehabilitation.” Maj. Op. at

23 n.9 (quoting United States v. Serafini, 233 F.3d 758, 776 (3d

Cir. 2000) (quoting United States v. Kikumura, 918 F.2d 1084,

1111 (3d Cir. 1990)). Serafini dealt with perjury rather than tax

evasion, and the quote from Kikumura refers to the goals of

sentencing generally. Serafini and Kikumura certainly do not

stand for the proposition that a sentencing court must grant

paramount importance to the role of general deterrence in tax

evasion cases.

In any case, the record before us makes clear that the

District Court took all the pertinent factors into account in

imposing its sentence, including general deterrence. At the

sentencing proceeding, Assistant United States Attorney

Conway made several statements indicating that the

Government would not be satisfied with a sentence that did not

include incarceration. A few examples will give the general

tenor of the Government’s position:

1. “He was willing to cheat his country, the

very country that provided him with the

opportunities to accumulate the wealth he

did out of the money that it was rightfully

entitled. At a time when our soldiers are

risking their very lives for this country,

Mr. Tomko can’t even bring himself to pay

his country what’s rightfully owed.”

56

2. “He was having his country and his fellow

citizens subsidize his extravagant lifestyle,

and the defense portrays him as some sort

of great American. Well, I and my fellow

citizens, who actually pay their fair share

of their taxes, beg to differ.”

3. “I know there are a lot of cynical people in

our country that talk about – claiming that

money can buy you out of trouble, but

that’s not how the system is supposed to

work, not in this country. I hope you

reflect how the system really works.”

4. “A lengthy term of incarceration is also

important for something you didn’t

mention in what you just went through,

and that’s third party deterrence,

particularly in this industry. In this case, if

this case is any indication, this contracting

industry is riddled, riddled with tax fraud.

A sentence of probation tells this industry:

Go ahead, cheat on your taxes. If you get

caught, you’ll have to pay some money,

but you won’t have to go to prison.”

5. “Real deterrence is jail.”

57

6. “Do the necessary and right thing in this

case and send this tax cheat to jail.”

Almost immediately after the Government made these

statements, the District Court sentenced Tomko. The

Government’s statements regarding general deterrence, seen in

statements three through six above, were delivered directly in

front of the District Court. A sentencing court does not have to

“discuss and make findings as to each of the § 3553(a) factors

if the record makes clear the court took the factors into account

in sentencing.” Cooper, 437 F.3d at 329 (emphasis added)

(citations omitted); see also Rita, 127 S. Ct. at 2469 (noting that

“context and the record make clear that this, or similar,

reasoning, underlies the judge’s conclusion”). Here, “[t]he

record makes clear that the sentencing judge listened to each

argument.” Rita, 127 S. Ct. at 2469.

Further, the District Court noted, soon after the

Government made its statements about general deterrence, that

it viewed Tomko’s sentence as “address[ing] the sentencing

goals of punishment, deterrence and rehabilitation.” See Rita,

127 S. Ct. at 2468 (“In our view, given the straightforward,

conceptually simple arguments before the judge, the judge’s

statement of reasons here, though brief, was legally sufficient.”).

It heard the Government’s impassioned plea, considered general

deterrence, and handed down Tomko’s sentence.

58

I also note that the District Court’s fine of $250,000 was

over eight times above the upper end of the Guideline fine

range. See U.S. SENTENCING GUIDELINES MANUAL § 5E1.2.

The District Court stated that the Guideline fine range was

insufficient deterrence because of Tomko’s wealth. This large

fine serves goals of both general and specific deterrence,

punishing Tomko individually and also sending a signal to

others in Tomko’s financial position that a fine far above the

Sentencing Guidelines suggestion may follow a guilty plea for

tax evasion.20 For these reasons, I believe the District Court

took these policy statements into account.

20

The District Court also stated that “I have sentenced

him to the period of probation, which I recognize is below the

guideline range. I also recognize that the fine is above the

guideline range. Given the Defendant’s wealth, the guideline

range in fines is insufficient deterrence. Therefore, I’ve done

this mitigation of the sentence under the provisions set forth in

18 U.S.C. § 3553 for the reasons I stated. Taking all these

factors into account, the Court sentences the Defendant to a

period of probation, a substantial fine, and allows for repayment

to the Internal Revenue Service of his outstanding tax

obligation.” It is plain that the District Court realized that its

sentence fell below the Guidelines range, and that the Court

elected to impose this sentence even though the criminal tax

laws emphasize general deterrence because of enforcement

difficulties.

59

Similarly, the District Court properly considered and

applied § 3553(a)(6). The Sentencing Guideline background

comment quoted by the majority states, in relevant part, that

“[t]his guideline is intended to reduce disparity in sentencing for

tax offenses and to somewhat increase average sentence length.

As a result, the number of purely probationary sentences will be

reduced.” U.S. SENTENCING GUIDELINES MANUAL § 2T1.1,

cmt. background. The background comment’s use of the word

“reduce” rather than “eliminate” is telling. The District Court

specifically addressed the need for consistent sentencing. The

District Court stated: “I recognize the need for consistent

sentencing; however, in this case, given the Defendant’s lack of

any significant criminal history, his involvement in exceptional

charitable work and community activity, and his acceptance of

responsibility, we find that a sentence that is mitigated by the

factors of 3553 [is] warranted.” This passage shows that the

District Court explicitly considered § 3553(a)(6), which

recognizes “the need to avoid unwarranted sentence disparities

among defendants with similar records who have been found

guilty of similar conduct.” 18 U.S.C. § 3553(a)(6). The

background comment in § 2T1.1 mirrors § 3553(a)(6) in all

relevant respects. In sum, even if we were to ignore our

precedent and give undue weight to § 3553(a)(5), the District

Court properly considered this factor. See United States v.

Charles, 467 F.3d 828, 833 (3d Cir. 2006) (stating that the need

for consistent sentencing “is just one factor (if relevant) that

should be balanced against the others (again, if relevant)”);

United States v. Williams, 458 F.3d 312, 320 (3d Cir. 2006)

60

(“Although the Sentencing Guidelines were designed to limit

judicial discretion in sentencing to ensure more uniform

sentences, it did not eradicate all judicial discretion.”). I also

note that an over-reliance on § 3553(a)(6) necessarily

encourages sentencing judges to automatically apply the

Guidelines. Such a result renders the Guidelines mandatory and

runs afoul of Booker.

We must keep in mind that a reviewing court must “apply

a deferential standard” to the sentencing court’s application of

the factors to the circumstances of the case. Cooper, 437 F.3d

at 330. The focus on review is not how the appellate court

would have applied the § 3553(a) factors. Rather, the emphasis

must be on “whether the district judge imposed the sentence he

or she did for reasons that are logical and consistent with the

factors set forth” in § 3553(a). Id. at 330 (quotation omitted).

This deferential standard recognizes that “the trial court [is] in

the best position to determine the appropriate sentence in light

of the particular circumstances of the case.” Id.; see also Rita,

127 S. Ct. at 2469 (“The sentencing judge has access to, and

greater familiarity with, the individual case and the individual

defendant before him than the Commission or the appeals

court.”). Simply weighing the § 3553(a) factors differently is no

ground for vacating a sentence.

For the reasons stated above, I believe that the majority

has applied the wrong standard of review to Tomko’s sentence.

The majority incorrectly draws a sharp line between reviewing

61

a district court’s sentence procedurally and reviewing it

substantively. As shown by the Supreme Court’s recent

decision in Rita, procedural and substantive review are

interconnected in the reasonableness analysis. It is true that

Justice Breyer’s majority opinion stated in dicta that “[i]n

sentencing, as in other areas, district judges at time make

mistakes that are substantive. At times, they will impose

sentences that are unreasonable. Circuit courts exist to correct

such mistakes when they occur.” Rita, 127 S. Ct. at 2466-67.

The majority opinion in Rita, though, does not separate process

from substance in the same manner as, for example, is done in

the Second Circuit. See, e.g., United States v. Trupin, 475 F.3d

71, 74 (2d Cir. 2007) (“Although the district court considered

the section 3553(a) factors as required by Booker, it erred in its

conclusion. This case thus turns on the result–the

reasonableness of the sentence as a whole–rather than the

process that produced it.” (emphasis added)). The Supreme

Court in Rita repeatedly stressed the importance of the process

by which the sentencing court arrives at its conclusion.

Similarly, our Court’s jurisprudence, beginning with Cooper,

stresses meaningful consideration of the § 3553(a) factors and

then reasonable application of the factors to an individual

defendant. Cooper, 437 F.3d at 329-30. As such, the substance

of a sentence cannot be divorced from the process by which the

district court handed down its sentence. Put differently, as in

Cooper, an evaluation of the resulting sentence is necessarily

and closely linked with the process that the sentencing court

used to determine that sentence. At no point do we look at the

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resulting sentence in isolation from the process that led to it.

The majority has not cited any case from our Court for the

propriety of making such a separation, for the simple fact that no

such case exists.21

The extent to which the majority focuses on pure

substance can be seen in its repeated references to the need for

Tomko to spend time in jail in spite of the District Court’s

thorough examination of how and why the individualized §

3553(a) factors warranted a 12 month variance from the lower

end of the Guidelines. The most logical inference from these

21

I am not even sure that we can legitimately separate

process from substance in the sentencing arena. Justice Stevens

attempts to do this when, in providing an example of “purely

procedural review,” he states that “a district judge who gives

harsh sentences to Yankees fans and lenient sentences to Red

Sox fans would not be acting reasonably even if her procedural

rulings were impeccable.” Rita, 127 S. Ct. at 2473 (Stevens, J.,

concurring). This contention is effectively rebutted by Justice

Scalia, who notes that “‘[s]ubstance’ and ‘procedure’ are

admittedly chameleon-like terms.” Id. at 2483 (Scalia, J.,

concurring in part and concurring in the judgment) (citation

omitted). Like Justice Scalia, “my use of the term ‘procedure’

here includes the limiting of sentencing factors to permissible

ones—as opposed to using permissible factors but reaching a

result that is ‘substantively’ wrong.” Id. It is for this reason that

Justice Stevens’ Yankees/Red Sox example is inapt. Substance

and procedure are interrelated.

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references is that it would have been impossible for the District

Court in this case to justify the sentence given to Tomko,

irrespective of the strength of reasons it provided. I cannot

fathom how this conclusion is reconcilable with our post-Booker

jurisprudence. See Schweitzer, 454 F.3d at 204 (noting that a

sentence outside of the Guidelines range is not presumptively

unreasonable). Such a conclusion, however, is necessary to the

majority’s conclusion precisely because the District Court gave

such explicit consideration to § 3553(a) in imposing Tomko’s

sentence.

In order for the Guidelines regime to be truly advisory,

a District Court must be able to potentially, when the proper

situation arises, sentence a defendant outside the Guidelines

range but within the statutory range. Any other conclusion

would alter the statutory sentencing scheme as passed by

Congress and interpreted by Booker. A secondary effect, of

course, is to pressure district courts into either crafting sentences

within the Guidelines range or, at a minimum, categorically

ignoring substantial upward or downward variances. This

situation seems to be contrary to Rita’s declaration that courts of

appeals may adopt only a “nonbinding appellate presumption

that a Guidelines sentence is reasonable.” Rita, 127 S. Ct. at

2466 (emphasis added).

Focusing on substance rather than a combination of

substance and process permits the majority to claim that its

reasoning is not dependent on the “proportionality principle.”

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Regardless of whether the majority asserts that its reasoning

does not depend on the proportionality principle, its

overemphasis on Tomko’s lack of imprisonment rather than the

process used to arrive at the sentence of home confinement, 250

hours of community service, three years of probation, 28 days

of in-house treatment for alcohol abuse, and a fine of $250,000,

leads me to the conclusion that the majority has adopted some

variant of the proportionality principle that will be taken up next

term in United States v. Gall. Even if the question presented in

Gall does not overlap entirely with the legal issues in this case,

the Gall decision will more than likely influence or possibly

control the outcome of this case. This case should be held c.a.v.

pending the outcome of Gall.

III.

The precedential effect of the majority’s opinion will be

to deter District Courts from sentencing a defendant to a within-

statutory but outside-Guidelines range. This “gravitational pull”

toward a within-Guidelines sentence, Rita, 127 S. Ct. at 2487

(Souter, J., dissenting), is much greater in this case than, for

example, a “nonbinding appellate presumption” of

reasonableness for a within-Guidelines sentence. See id. at

2466. If I were a sentencing judge, I would not know which

types of cases fall into the majority’s spectrum of cases that are

ineligible for substantial variances regardless of the reasons

given by that judge.

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A sentencing court has an obligation to tell us how it

arrived at the sentence, as the purpose of our meaningful

consideration/reasonable application requirement is for the

District Court to “state adequate reasons for a sentence on the

record so that this court can engage in meaningful appellate

review.” United States v. King, 454 F.3d 187, 196-97 (3d Cir.

2006). “By articulating reasons, even if brief, the sentencing

judge not only assures reviewing courts (and the public) that the

sentencing process is a reasoned process but also helps that

process evolve.” Rita, 127 S. Ct. at 2469. I do not see how the

District Court’s extensive discussion of the relevant facts and

law prevents us from engaging in meaningful appellate review.

In engaging in this review, I also fail to see how the District

Court in this case abused its discretion, in light of its

justification for Tomko’s variance. The majority’s holding

simply cannot be squared with our decision in United States v.

Cooper, 437 F.3d 324 (3d Cir. 2006) and its progeny, the text of

18 U.S.C. § 3553(a), or Rita v. United States, --- U.S. ---, 127 S.

Ct. 2456 (2007). For these reasons, I respectfully dissent.

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