                                                                                                                           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Precedential or Non-Precedential: Precedential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


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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


                               62
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.”


                                 64
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.



                                65
        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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