Filed: Jul. 09, 2014
Latest Update: Mar. 02, 2020
Summary: 13-4142-cr United States v. Park In the United States Court of Appeals For the Second Circuit _ AUGUST TERM 2013 No. 13-4142-cr UNITED STATES OF AMERICA, Appellant, v. YOUNG C. PARK, Defendant-Appellee. _ Appeal from the United States District Court for the Eastern District of New York. No. 12-cr-344 Frederic Block, Judge. _ ARGUED: JUNE 26, 2014 DECIDED: JULY 9, 2014 _ Before: CABRANES, CARNEY, and DRONEY, Circuit Judges. _ The government appeals from the sentence imposed on defendant Young C
Summary: 13-4142-cr United States v. Park In the United States Court of Appeals For the Second Circuit _ AUGUST TERM 2013 No. 13-4142-cr UNITED STATES OF AMERICA, Appellant, v. YOUNG C. PARK, Defendant-Appellee. _ Appeal from the United States District Court for the Eastern District of New York. No. 12-cr-344 Frederic Block, Judge. _ ARGUED: JUNE 26, 2014 DECIDED: JULY 9, 2014 _ Before: CABRANES, CARNEY, and DRONEY, Circuit Judges. _ The government appeals from the sentence imposed on defendant Young C...
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13‐4142‐cr
United States v. Park
In the
United States Court of Appeals
For the Second Circuit
________
AUGUST TERM 2013
No. 13‐4142‐cr
UNITED STATES OF AMERICA,
Appellant,
v.
YOUNG C. PARK,
Defendant‐Appellee.
________
Appeal from the United States District Court
for the Eastern District of New York.
No. 12‐cr‐344 ― Frederic Block, Judge.
________
ARGUED: JUNE 26, 2014
DECIDED: JULY 9, 2014
________
Before: CABRANES, CARNEY, and DRONEY, Circuit Judges.
________
The government appeals from the sentence imposed on
defendant Young C. Park, pursuant to an October 24, 2013 judgment
of the United States District Court for the Eastern District of New
York (Frederic Block, Judge), following Park’s guilty plea to one
2 No. 13‐4142‐cr
count of filing a false corporate tax return in violation of 26 U.S.C.
§ 7206.
We consider on appeal whether the District Court erred in
sentencing Park to a probationary sentence rather than a term of
imprisonment based solely on its belief that the government could
not afford the cost of incarceration during a so‐called “government
shut‐down.” We hold that the District Court failed to conduct a
meaningful review of the sentencing factors enumerated in 18 U.S.C.
§ 3553(a), and that the cost of incarceration, much less a political
phenomenon styled a “government shut‐down,” is not a permissible
factor to consider in determining whether to impose a term of
imprisonment. In light of the need for deterrence and just
punishment and the District Court’s own remarks suggesting that a
term of imprisonment was warranted, we also hold that the
probationary sentence imposed here was substantively
unreasonable. Accordingly, we VACATE the sentence imposed by
the District Court and REMAND for plenary resentencing in
accordance with this opinion.
________
PATRICIA A. PILEGGI, Schiff Hardin LLP, New
York, NY, for Defendant‐Appellee Young C. Park.
ELISSA HART‐MAHAN (Kathryn Keneally,
Assistant Attorney General, Frank P. Cihlar,
Chief, Criminal Appeals & Tax Enforcement
Policy Section, Gregory V. Davis, Attorney, Tax
Division, on the brief), for Loretta E. Lynch, United
States Attorney for the Eastern District of New
York, Brooklyn, NY, for Appellant United States.
________
3 No. 13‐4142‐cr
PER CURIAM:
The United States appeals from the sentence imposed on
defendant Young C. Park, pursuant to an October 24, 2013 judgment
of the United States District Court for the Eastern District of New
York (Frederic Block, Judge), following Park’s guilty plea to one
count of filing a false corporate tax return in violation of 26 U.S.C.
§ 7206.
We consider on appeal whether the District Court erred in
sentencing Park to a below‐guidelines probationary sentence rather
than a term of imprisonment based solely on its belief that the
government could not afford the cost of incarceration during a so‐
called “government shut‐down.” We hold that the District Court
failed to conduct a meaningful review of the sentencing factors
enumerated in 18 U.S.C. § 3553(a), and that the cost of incarceration,
much less a political phenomenon styled a “government shut‐
down,” is not a permissible factor to consider in determining
whether to impose a term of imprisonment. In light of the need for
deterrence and just punishment and the District Court’s own
remarks suggesting that a term of imprisonment was warranted, we
also hold that the probationary sentence imposed here was
substantively unreasonable. Accordingly, we VACATE the sentence
imposed by the District Court and REMAND for plenary
resentencing in accordance with this opinion.
BACKGROUND
On July 10, 2012, Park waived indictment and pleaded guilty
to an information charging him with filing a false corporate tax
return, in violation of 26 U.S.C. § 7206(1). According to the
Presentence Report (“PSR”) prepared by the United States Probation
Office, in 2004 and 2005, Park diverted his business’s cash receipts
4 No. 13‐4142‐cr
from the corporate bank account, filed false corporate tax returns
that significantly understated the business’s gross receipts, and
underpaid payroll taxes that were due and owing. The PSR
calculated an applicable Guidelines range of 15 to 21 months’
imprisonment, based on Park’s prior convictions for fraud offenses1
and a total tax loss of $133,601.
Park was sentenced on October 11, 2013, during a so‐called
“government shut‐down.”2 At the sentencing hearing, the District
Court initially revealed that it was inclined to impose a sentence of
incarceration in light of Park’s prior convictions and resulting prison
sentence. The Court then noted, however, that the “economic
problems” caused by the 2013 government shut‐down warranted
consideration, stating:
I’m going to say that I would probably give a period of
incarceration if not for the financial pressures that the
Court has, the court system and the government has.
Especially low‐level federal employees at the present
time. And we really can’t afford the luxury of paying
another $28,000 to keep this person in jail under the
circumstances and I encourage you to appeal.3
The Court then expressly reaffirmed that its decision not to impose a
sentence of incarceration was based solely on the government shut‐
In 1998, Park was convicted of conspiracy to commit mail fraud and of
1
substantive mail fraud charges, arising from his involvement in a Ponzi‐style scheme that
resulted in a total loss to investors of almost $7 million. Park was sentenced principally
to a year and a day of incarceration, which he completed in December 1999.
2 See Lisa Rein, Shutdown’s Impact Continues to Grow, WASH. POST., Oct. 5, 2013, at
A1.
3 App. 144.
5 No. 13‐4142‐cr
down, asserting, “I’m making the record that I am not going to put
him in jail only because of the economic plight that we are facing today.”4
The Court then proceeded to sentence Park to three years’
probation, including six months’ home confinement, the cost of
which was to be paid by Park. It did not impose a fine or any
restitution beyond that already paid as a condition of the guilty plea.
Having secured the required approval of the Solicitor General of the
United States,5 the government filed a timely notice of appeal,
contending that the Court erred in considering the cost of
incarceration as a relevant sentencing factor.
DISCUSSION
We review sentences on appeal only for “reasonableness.”6
This type of scrutiny includes two components: “procedural” review and
“substantive” review—although in sentencing, as in many areas of the
law, the precise line between procedure and substance is often elusive.7
4 Id. at 145 (emphasis supplied).
Under 18 U.S.C. § 3742(b), “[t]he Government may not further prosecute [a
5
sentencing appeal] without the personal approval of the Attorney General, the Solicitor
General, or a deputy solicitor general designated by the Solicitor General.”
6 United States v. Corsey, 723 F.3d 366, 374 (2d Cir. 2013); see also Gall v. United
States, 552 U.S. 38, 40‐41 (2007).
7 Indeed, as Justice Holmes famously remarked in a different context, a word like
“substance” or “procedure” “is not a crystal, transparent and unchanged, it is the skin of
a living thought and may vary greatly in color and content according to the
circumstances and the time in which it is used.” Towne v. Eisner, 245 U.S. 418, 425 (1918).
Justice Brennan, writing for the Supreme Court in 1958, similarly noted that “[t]he words
‘substantive’ and ‘procedural’ are mere conceptual labels and in no sense talismanic.”
Byrd v. Blue Ridge Rural Elec. Coop., Inc., 356 U.S. 525, 549 (1958); see also Laurence H.
Tribe, American Constitutional Law 712 (2d ed. 1988) (noting that substance and
procedure cannot be “neatly separated”). For this reason, whether an issue “is more
appropriately characterized as substantive or procedural is not a matter of overriding
significance.” Albright v. Oliver, 510 U.S. 266, 302 (1994).
6 No. 13‐4142‐cr
Whether a sentence satisfies the objectives enumerated in the 18 U.S.C.
§ 3553(a)—a substantive inquiry—depends upon the explanation given by
the District Court pursuant to 18 U.S.C. § 3553(c)—a procedural
requirement.8 Where, as here, a district court relies on an improper factor
to justify the sentence imposed, it can be difficult, if not impossible, for a
reviewing court to evaluate separately the “procedural” and “substantive”
reasonableness of a sentence.
A. “Procedural” Unreasonableness
The procedural review focuses on whether the sentencing
court followed all the necessary steps in deciding upon a sentence.9
A district court normally begins all sentencing proceedings by
calculating the applicable Guidelines range, and will then consider
the factors listed in 18 U.S.C. § 3553(a),10 as required by statute,11
8 See United States v. Giovanelli, 464 F.3d 346, 355 (2d Cir. 2006) (review for
procedural reasonableness includes determining whether the sentencing court
“consider[ed] the . . . factors listed in § 3553(a),” while review for substantive
reasonableness asks “whether the sentence length is reasonable in light of the . . . factors
set out in [§] 3553(a)” (citation omitted)).
9 See Gall, 552 U.S. at 51.
10 Under 18 U.S.C. § 3553(a), a district court must consider seven sentencing
factors. The first factor is a broad directive to consider “the nature and circumstances of
the offense and the history and characteristics of the defendant.” Id. § 3553(a)(1). The
second factor requires consideration of the general purposes of sentencing, specifically,
the need for the sentence imposed—(A) to reflect the seriousness of the
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.
Id. § 3553(a)(2). The third factor pertains to the kinds of sentences available; the fourth to
the Sentencing Guidelines; the fifth to any relevant policy statement issued by the
Sentencing Commission; the sixth to the need to avoid unwarranted sentence disparities;
and the seventh to the need to provide restitution to any victim. Id. § 3553(a)(3)‐(7).
7 No. 13‐4142‐cr
before imposing a final sentence.12 Although “[a] judge need not
utter ‘robotic incantations’ repeating each factor that motivates a
sentence[,] . . . the judge must explain enough about the sentence for
a reviewing court both to understand it and to assure itself that the
judge considered the principles enunciated in federal statutes and
the Guidelines.”13 Further, when a district court imposes a sentence
outside the recommended range, as the Court did here, it “must
consider the extent of the deviation and ensure that the justification
is sufficiently compelling to support the degree of the variance.”14
After a review of the record, we conclude that the District
Court committed procedural error in imposing a term of probation
in lieu of imprisonment for two reasons. First, the only sentencing
factor the District Court deemed relevant was the cost of
incarceration to the government and the economic problems
allegedly caused by the government shut‐down. As the Court
clearly announced, “I am not going to put him in jail only because of
the economic plight that we are facing today.”15 After emphasizing that
its sentencing decision was based solely upon this consideration, the
Court then rebuffed defense counsel’s suggestion to “supplement
the record,” asserting, “[i]f we have to resentence him, we will
later.”16 The Court also stated that if the Court of Appeals were to
reverse, it would “consider all of these factors” at resentencing,17
11 See 18 U.S.C. § 3582(a).
12 See, e.g., United States v. Preacely, 628 F.3d 72, 79 (2d Cir. 2010).
13 Corsey, 723 F.3d at 374 (citation omitted).
United States v. Cavera, 550 F.3d 180, 189 (2d Cir. 2008) (en banc) (citation and
14
internal quotation marks omitted).
15 App. 145 (emphasis supplied).
16 Id.
17 Id. at 150.
8 No. 13‐4142‐cr
clearly indicating that it did not consider the relevant factors in the
first instance. The Court therefore committed procedural error by
refusing to consider the § 3553(a) factors in deciding what is an
appropriate sentence.
Second, and equally problematic, is that the cost of
incarceration to the government—the Court’s sole justification for
imposing a term of probation rather than incarceration—is not a
relevant sentencing factor under the applicable statutes. We agree
with the Eighth Circuit that, based on the plain language of
§ 3553(a), no sentencing factor can reasonably be read to encompass
the cost of incarceration.18 Nor does the statute permit the
sentencing court to balance the cost of incarceration against the
sentencing goals enumerated in § 3553(a).19
Such an understanding is consistent with the broader
legislative scheme. The imposition of a fine is governed by 18 U.S.C.
§ 3572, which, like § 3553(a), includes a list of factors for district
judges to consider. Sections 3572(a) states that, “[i]n determining
See United States v. Molina, 563 F.3d 676, 678 (8th Cir. 2009) (“Although
18
sentencing courts are required to consider the sentencing factors set out in 18 U.S.C.
§ 3553(a), the cost of imprisonment is not among them. Thus, we doubt that sentencing
courts have the authority to impose lesser sentences based on the cost of
imprisonment.”).
The cost of imprisonment also lacks significance to a district judge’s decision of
19
whether to depart from the Sentencing Guidelines range. See United States v. Wong, 127
F.3d 725, 728 (8th Cir. 1997). Indeed, the only Guidelines provision which seems to allow
departures on the basis of cost is “in the case of a seriously infirm defendant,” when
“home detention may be as efficient as, and less costly than, imprisonment.” U.S.S.G.
§ 5H1.4. But even in the case of elderly defendants, the Guidelines clarify that the
condition or appearance must be “present to an unusual degree and distinguish[ ] the
case from the typical cases covered by the guidelines.” Id. The absence of cost as a
prevalent, or even occasional, justification for a departure under the Guidelines thus
reaffirms our conclusion that it is not an appropriate sentencing factor, except in highly
unusual cases that are difficult to imagine or anticipate.
9 No. 13‐4142‐cr
whether to impose a fine, . . . the court shall consider, in addition to
the factors set forth in section 3553(a) . . . the expected costs to the
government of any imprisonment.”20 This section makes clear that
the cost of incarceration is not included in the § 3553(a) factors; if it
were, cost of imprisonment would not have been necessary to list as
an additional factor relevant to the imposition of a fine.21
Park argues alternatively that, although the statute may not
require sentencing courts to consider the cost of imprisonment,
nothing prohibits them from doing so. We are reluctant, however, to
expand relevant sentencing considerations beyond those
enumerated in § 3553(a), insofar as the purpose of the “statutory
mandate of § 3553” was to “necessarily channel[ ] district court[s’]
sentencing discretion.”22 Permitting considerations of costs as an
additional factor would be particularly inappropriate in view of “the
express inclusion of cost of imprisonment as a consideration [with
respect to fines] in § 3572(a),” which “demonstrates that when
Congress intended to include cost as a consideration, it did so very
clearly.”23 Moreover, as the Eighth Circuit has noted, “[t]he decision
whether tax dollars should be used to pay for lengthy sentences is a
congressional determination, not one to be made by federal
courts.”24 We conclude, therefore, that the cost of imprisonment is
not a sentencing factor enumerated in § 3553(a), nor is it an
additional factor upon which district courts may rely in deciding
whether to impose a term of incarceration under 18 U.S.C. § 3582(a).
20 18 U.S.C. § 3572(a)(6).
21 Accord United States v. Tapia‐Romero, 523 F.3d 1125, 1127‐28 (9th Cir. 2008).
22 United States v. Jones, 531 F.3d 163, 174 (2d Cir. 2008).
23 Tapia‐Romero, 523 F.3d at 1128.
24 Wong, 127 F.3d at 728.
10 No. 13‐4142‐cr
The District Court accordingly committed procedural error in
sentencing Park to a probationary sentence by affirmatively refusing
to consider the § 3553(a) factors, and relying instead on an
impermissible factor—namely, whether the government could
afford Park’s incarceration.25
B. “Substantive” Unreasonableness
Turning to the question of substantive reasonableness,26 an
appellate court “will . . . set aside a district court’s substantive
determination only in exceptional cases.”27 Appellate review of
whether a sentence is truly exceptional within the scheme of federal
sentencing law is no more based on an algorithm or calculus than is
the decision of a district judge to impose that particular sentence in
the first place. In both instances, the judicial function involves an
exercise of judgment channeled by prescribed norms. We have thus
stated that “‘reasonableness’ is inherently a concept of flexible
meaning, generally lacking precise boundaries,” and that “it
25 To the extent the Court wishes to consider the cost of imprisonment at
resentencing, it of course may do so through the imposition of a fine, as permitted under
18 U.S.C. § 3572(a)(6); accord U.S.S.G. § 5E1.2(d)(7) (“In determining the amount of the
fine, the court shall consider . . . the expected costs to the government of any term of
probation, or term of imprisonment and term of supervised release imposed.”); United
States v. Mordini, 366 F.3d 93, 94 (2d Cir. 2004). As the government rightly notes, given
that Park has net assets of approximately $1.1 million and income of $11,000 per month,
the District Court would be well within its discretion to impose a fine that covered the
full costs of incarceration. Indeed, the District Court did order Park to cover the costs of
his home confinement.
26 It is well settled that “[n]othing . . . prevents us from reaching both the
procedural and substantive reasonableness of the sentence in the course of an appeal
where we find both types of error.” Corsey, 723 F.3d at 378 (internal quotation marks
omitted).
27 Cavera, 550 F.3d at 189 (emphasis in original).
11 No. 13‐4142‐cr
involves some degree of subjectivity that often cannot be precisely
explained.”28
In light of this leeway, our substantive review of a sentence is
akin to review under an “abuse‐of‐discretion” standard,29 a form of
review with which appellate courts are long familiar. We have
noted on many occasions that “abuse of discretion” is a distinctive
term of art that is not meant as a derogatory statement about the
district judge whose decision is found wanting.30 It is more properly
understood as referring to occasions where, after examining trial
court records, an appellate court reaches the informed judgment that
a ruling is based on “an erroneous view of the law or on a clearly
erroneous assessment of the evidence, or . . . a decision that cannot
be located within the range of permissible decisions.”31 In the
context of sentencing, a trial’s court’s evaluation of the evidence is
clearly erroneous when we are “left with the definite and firm
United States v. Sindima, 488 F.3d 81, 85 (2d Cir. 2007) (citations and internal
28
quotation marks omitted).
29 Corsey, 723 F.3d at 374; see also Gall, 552 U.S. at 40‐41.
30 See, e.g., United States v. Ghailani, 733 F.3d 29, 44 (2d Cir. 2013); Zervos v. Verizon
N.Y., Inc., 252 F.3d 163, 168‐69 & nn. 4‐6 (2d Cir. 2001).
As Frank M. Coffin, the late and much admired Chief Judge of the First Circuit,
described in discussing how he went about the difficult task of reviewing a decision for
“abuse of discretion”:
I know of no formula in this kind of case except to live with the record
until one breathes it, to gain what one can from similar cases, to brood
over the consequences, and, finally, if one’s sense of rawness becomes
blunted over time, affirm. But if the redness remains, after days and
weeks, take a big breath and reverse.
Frank M. Coffin, On Appeal: Courts, Lawyering, and Judging 267 (1994)
31 In re Sims (Sims v. Blot), 534 F.3d 117, 132 (2d Cir. 2008) (alterations, citations,
and internal quotation marks omitted).
12 No. 13‐4142‐cr
conviction that a mistake has been committed.”32 The length of a
sentence is outside the range of permissible decisions when
“affirming it would damage the administration of justice because the
sentence imposed was shockingly high, shockingly low, or
otherwise unsupportable as a matter of law.”33 In determining
whether a sentence shocks the judicial conscience or is otherwise
unsupportable, we use as our “lodestar the parsimony clause of 18
U.S.C. § 3553(a), which directs sentencing courts to ‘impose a
sentence sufficient, but not greater than necessary[,] to comply with’
the factors set out in 18 U.S.C. § 3553(a)(2)”34—namely, retribution,
deterrence, and incapacitation.35
A reviewing court should not avoid its duty to apply these
general standards of review simply because of its respect for an
experienced and capable trial judge, which is why we “have
cautioned against converting review for substantive reasonableness
into a ‘rubber stamp.’”36 In thus exercising its judgment, a
32 Anderson v. Bessemer City, 470 U.S. 564, 573 (1985). Although this test is
typically applied when reviewing factual findings for clear error, it also extends to
decisions by district courts, like certain sentencing decisions, that are “essentially factual
application of fact to law.” United States v. Hinkson, 585 F.3d 1247, 1262 n.19 (9th Cir.
2009) (internal quotation marks omitted). Accordingly, several of our sister circuits have
understandably looked to this test for analyzing substantive reasonableness. See, e.g.,
United States v. Daniels, 685 F.3d 1237, 1252 (11th Cir. 2012); United States v. Maier, 646
F.3d 1148, 1155‐56 (9th Cir. 2011).
United States v. Douglas, 713 F.3d 694, 700 (2d Cir. 2013) (internal quotation
33
marks and alteration omitted).
34 Id.
35 Although rehabilitation is also included as a factor under § 3553(a)(2), in Tapia
v. United States, the Supreme Court held that the Sentencing Reform Act—in particular,
18 U.S.C. § 3582(a) —“precludes sentencing courts from imposing or lengthening a
prison term to promote an offenderʹs rehabilitation.” 131 S. Ct. 2382, 2391 (2011).
36 United States v. Rigas, 583 F.3d 108, 122 (2d Cir. 2009).
13 No. 13‐4142‐cr
reviewing court is not disparaging the person of a trial judge, but
simply concluding, after careful review, (1) that a sentence lacks a
proper basis in the record, (2) that a trial judge’s assessment of the
evidence leaves the reviewing court with a definite and firm
conviction that a mistake has been committed, or (3) that the
reviewing court has reached the informed judgment that a sentence
is otherwise unsupportable as a matter of law. In this instance, the
probationary sentence imposed by the District Court is all of these
(any one of which would be sufficient to vacate the sentence). We
are therefore bound to conclude that it is substantively unreasonable
as well as procedurally unreasonable.
With respect to the § 3553(a)(2) factors discussed at the
sentencing hearing, general deterrence occupies an especially
important role in criminal tax offenses, as criminal tax prosecutions
are relatively rare. As the Guidelines themselves state, “[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.”37 This case also presents a heightened need for just
punishment and specific deterrence in light of Park’s prior
convictions for financial crimes. Park already served eight months
in prison for fraud, and he began diverting cash receipts from his
corporate bank account—the basis for his conviction here—only one
year after he completed his term of supervised release for the prior
fraud convictions.
As part of our substantive reasonableness inquiry, we also
look to the District Court’s own explanation at the sentencing
hearing, insofar as “our . . . ability to uphold a sentence as
reasonable will be informed by the district court’s statement of
37 U.S.S.G. § 2T1, introductory cmt.
14 No. 13‐4142‐cr
reasons (or lack thereof) for the sentence that it elects to impose.”38
The District Court’s remarks in this case indicate that a term of
imprisonment was needed to punish and deter Park in light of his
criminal past, and that, in the circumstances presented here, it
would have been inclined to impose a sentence of incarceration if
the government were not shut‐down. For example, after noting that
it had “a hard time swallowing that” Park “spent . . . eight months in
jail and he comes out and he commits another crime years later,” the
Court stated that it “would probably give a period of incarceration if
not for the financial pressures that the Court has, the court system
and the government has.”39
Such statements reveal the District Court’s view that, if the
government were not shut‐down, a term of incarceration would
have been needed to satisfy the parsimony clause—that is,
incarceration would have been “sufficient, but not greater than
necessary” to satisfy the purposes of sentencing outlined in 18 U.S.C.
§ 3553(a)(2). But the fact that the government was experiencing
widespread budgetary challenges did not somehow grant the
District Court “a blank check to impose whatever sentence[ ] suit[ed]
[its] fancy.”40 Particularly since the cost of incarceration is not a
valid § 3553(a) factor, we are left with only one conclusion: A term
of imprisonment was in fact minimally sufficient to fulfill the
statutorily mandated sentencing objectives, rendering a
probationary term unsupportable as a matter of law.
38 United States v. Rattoballi, 452 F.3d 127, 134 (2d Cir. 2006), abrogated in part on
other ground by Kimbrough v. United States, 552 U.S. 85 (2007); see also, e.g., United States v.
Fairclough, 439 F.3d 76, 80 (2d Cir. 2006) (evaluating the district court’s sentence in light of
the reasons that it offered).
39 App. 134, 144.
40 Jones, 531 F.3d at 174.
15 No. 13‐4142‐cr
We therefore hold that, in light of the need for deterrence and
just punishment and the District Court’s own conclusion that, based
on the record before it, a term of imprisonment was warranted, the
probationary sentence imposed here was substantively
unreasonable.
In holding that the District Court’s probationary sentence was
substantively unreasonable, we rely heavily upon the District Court’s
own evaluation of the case, as revealed by its statements at the
sentencing hearing.41 Our holding is therefore limited to the record
currently before us, which shows the District Court’s sole reliance on
the cost of incarceration in fashioning an appropriate sentence, as
well as its belief that, were the government not shut‐down, a term of
incarceration would be warranted. We thus do not foreclose the
possibility that the imposition of a probationary sentence on
remand, after appropriate consideration of the § 3553(a) factors thus
far left unaddressed, could be substantively reasonable as well.
CONCLUSION
To summarize, we hold that:
(1) The District Court committed procedural error in sentencing
Park because:
a. the Court only considered the cost of incarceration to
the government and the economic problems caused by a
“government shut‐down” rather than conducting a
meaningful review of the § 3553(a) factors; and
41 See notes 38‐39 and accompanying text, ante.
16 No. 13‐4142‐cr
b. the cost of imprisonment is not a sentencing factor
enumerated in § 3553(a), nor is it a separate factor upon
which district courts may rely in deciding whether to
impose a term of incarceration.
(2) The District Court also committed substantive error in
sentencing Park to a probationary sentence:
a. A sentence is substantively unreasonable when (1) it
lacks a proper basis in the record, (2) we are left with
the definite and firm conviction that a mistake was
made in assessing the evidence, or (3) the sentence
imposed was shockingly high, shockingly low, or
otherwise unsupportable as a matter of law.
b. In light of the District Court’s own statements at the
sentencing hearing regarding the nature and
seriousness of the offense and Park’s prior financial
crimes, and in the absence of further explanation of the
application of the § 3553(a) factors to Park, the
imposition of a probationary sentence meets all of these
criteria (any one of which would be sufficient for a
holding of substantive unreasonableness).
Accordingly, we VACATE the sentence imposed by the
District Court and REMAND for plenary resentencing in accordance
with 18 U.S.C. § 3553 and this opinion.
