                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-21-2007

USA v. Tomko
Precedential or Non-Precedential: Precedential

Docket No. 05-4997




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Recommended Citation
"USA v. Tomko" (2007). 2007 Decisions. Paper 498.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/498


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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.

                          ORDER AMENDING OPINION


       IT IS HEREBY ORDERED that the opinion in the above case, filed August 20,
2007, be amended as follows:

      Page 15, footnote 7, second and third sentences, which read:
              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 . . .
      shall read:
              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 48
              ...
Page 16, footnote 7, first full paragraph, first two sentences, which read:
               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 . . .
shall read:
               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 47
        (“The majority would, apparently, have applied these factors
        differently had it been the sentencing court. I would have
        done so as well.”); id. at 38 . . .

Page 39, first full paragraph, fifth and sixth sentences, which read:
        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.
shall read:
        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 27.

Page 39, first full paragraph, seventh and eighth sentences, which read:
      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


                                      2
        a sentence including a term of imprisonment.” Maj. Op. at
        27.
shall read:
        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
        26.

Page 48, second and third full sentences, which read:
        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.
shall read:
        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 30.

Page 48, first full paragraph, which read:
                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. . . .
shall read:
                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 30. 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 31. . . .

                                       3
Page 50, first full paragraph, which read:
               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.
shall read:
               The majority recognizes that “it is well within the
        discretion of a sentencing judge to consider” charity. Maj.
        Op. at 32. 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 35.

Page 52, first line through second sentence, which read:
        . . . 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.
shall read:
        . . . 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 36.

Page 55, first full paragraph, which read:
               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 . . .

                                       4
      shall read:
                     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 35-36 . . .

      Page 56, first and second lines, which read:
              deterrence, specific deterrence, and rehabilitation.” Maj. Op.
              at 23 n.9 . . .
      shall read:
              deterrence, specific deterrence, and rehabilitation.” Maj. Op.
              at 22 n.9 . . .

                                         By the Court,


                                         /s/ D. Michael Fisher
                                         Circuit Judge
Dated: August 21, 2007
CLC\cc: Alan Hechtkopf, Esq.                             S. Robert Lyons, Esq.
        Cynthia R. Eddy, Esq.                            J. Alan Johnson, Esq.




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