Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-17-2009

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Precedential or Non-Precedential: Precedential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 on October 24, 2006
          Opinion Issued on August 20, 2007
         Opinion Amended on August 21, 2007
Opinion Vacated and Petition for Panel Rehearing Granted
                  on January 17, 2008
     Rehearing En Banc Ordered on August 19, 2008
        Argued En Banc on November 19, 2008


                           1
   Before: SCIRICA, Chief Judge, SLOVITER, MCKEE,
    RENDELL, BARRY, AMBRO, FUENTES, SMITH,
   FISHER, CHAGARES, JORDAN, HARDIMAN and
                COWEN, Circuit Judges.

                   (Filed: April 17, 2009)


Nathan J. Hochman (Argued)
Alan Hechtkopf
S. Robert Lyons
United States Department of Justice
Tax Division
950 Pennsylvania Ave., N.W.
P.O. Box 502
Washington, DC 20044
      Attorneys for Appellant

J. Alan Johnson (Argued)
Cynthia R. Eddy
Johnson & Eddy
707 Grant Street
1720 Gulf Tower
Pittsburgh, PA 15219
       Attorneys for Appellee

Ellen C. Brotman
123 South Broad Street
24 th Floor
Philadelphia, PA 19109


                                2
Peter Goldberger
50 Rittenhouse Place
Ardmore, PA 19003
       Attorneys for Amicus,
       National Association of Criminal Defense Lawyers

Lisa B. Freeland
1001 Liberty Avenue
1450 Liberty Center
Pittsburgh, PA 15222
       Attorney for Amicus,
       Federal Public and Community Defenders of the
       Third Circuit




                           OPINION


SMITH, Circuit Judge, with whom McKEE, BARRY,
AMBRO, FUENTES, CHAGARES, JORDAN, and
HARDIMAN, Circuit Judges, join.

       The Government appeals the reasonableness of William
Tomko’s below-Guidelines sentence of probation, community
service, restitution, and fine for his tax evasion conviction. If
any one of a significant number of the members of this
Court—including some in today’s majority—had been sitting as
the District Judge, Tomko would have been sentenced to some

                               3
time in prison. But “[t]he fact that the appellate court might
reasonably have concluded that a different sentence was
appropriate is insufficient to justify reversal of the district
court.” Gall v. United States, 

, 597 (2007). Gall
reminds us that “[t]he sentencing judge is in a superior position
to find facts and judge their import under § 3553(a) in the
individual case. The judge sees and hears the evidence, makes
credibility determinations, has full knowledge of the facts and
gains insights not conveyed by the record.” 

and citations omitted); see also United States v.
Dragon, 

, 506 (3d Cir. 2006) (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.” (internal quotations and citation
omitted)). This reality is why, post-Booker, “the familiar abuse-
of-discretion standard of review now applies to appellate review
of sentencing decisions.” 

. Where, as
here, a district court decides to vary from the Guidelines’
recommendations, we “must give due deference to the district
court’s decision that the § 3553(a) factors, on a whole, justify
the extent of the variance.” 

These principles require
us to affirm Tomko’s sentence.

                               I.

      On May 11, 2004, Tomko pleaded guilty to a one-count
information charging him with tax evasion in violation of 26
U.S.C. § 7201. Tomko was the owner and Chief Executive

                               4
Officer of W.G. Tomko & Son, Inc. (“Tomko, Inc.”), a
plumbing contractor. From 1995 to 1998, Tomko directed
numerous subcontractors, who were building his multimillion
dollar home in Washington County, Pennsylvania, to falsify
information on billing invoices so that the invoices would show
work being done at one of Tomko, Inc.’s many job sites instead
of at Tomko’s home. As a result, Tomko, Inc. paid for the
construction of Tomko’s home and illegally deducted those
payments as business expenses. Tomko also did not properly
report those payments as income on his personal tax return.1 All
told, Tomko’s tax evasion scheme involved twelve different
subcontractors and his general contractor, and resulted in a tax
deficiency of $228,557.

       The United States District Court for the Western District
of Pennsylvania conducted Tomko’s sentencing hearing on
September 30, 2005. Using the 1997 edition of the United
States Sentencing Guidelines Manual, the District Court
calculated Tomko’s total offense level to be thirteen and his
criminal history category to be I.2 Based on these calculations,


1
 As a Subchapter S Corporation, Tomko had to report all of
Tomko, Inc.’s income and losses on his personal income tax
return because the company was not subject to income taxation.
2
 Tomko had one prior criminal conviction: in 2001, he pleaded
guilty in Maryland state court to operating a boat while
intoxicated. He was sentenced to one year of probation, and he

                               5
the Guidelines recommended a range of imprisonment between
twelve and eighteen months and a fine between $3,000 and
$30,000.

        Tomko, however, proposed that in light of the then-recent
Hurricane Katrina catastrophe and his construction expertise, the
Court should sentence him to probation and home detention, and
require him to work for Habitat for Humanity. The Executive
Director for Habitat for Humanity’s Pittsburgh affiliate testified
that the organization would appreciate Tomko’s help in its
efforts to rebuild the Gulf Coast and that Tomko had performed
well in past projects, including providing onsite assistance and
advice.

       Tomko also proffered testimony from Tomko, Inc.’s
Chief Financial Officer that the company was in danger of
losing its line of credit if he were imprisoned. If this happened,
Tomko, Inc. would be in dire straits financially and the jobs of
its 300-plus employees would be threatened.

      Finally, Tomko submitted a Motion for Downward
Departure.3 The motion argued that Tomko should be sentenced



completed twenty hours of community service.
3
 As a matter of terminology, we now speak in terms of
sentencing departures, which are based on specific Guidelines
provisions, and sentencing variances, which are based on the §

                                6
below his Guidelines range because 1) his incarceration could
cause Tomko, Inc.’s innocent employees to lose their jobs; 2) he
has performed exceptional charitable acts and good works; 3) he
has demonstrated an extraordinary degree of acceptance of
responsibility; and 4) a combination of these three factors. As
exhibits, Tomko attached over fifty letters from family, friends,
community leaders, and others attesting to his pre-indictment
charitable activities and other good works.

       After hearing these arguments and stating that it had
reviewed all the motions and briefs that the parties submitted,
the District Court stated its Guidelines calculations for the
record and considered the sentencing factors listed in 18 U.S.C.
§ 3553(a):4


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

,
195 n.2 (3d Cir. 2006).
4
In accordance with 18 U.S.C. § 3553(a), a sentencing court
must consider the following factors:
      (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
             offense, to promote respect for the law,
             and to provide just punishment for the
             offense;
             (B) to afford adequate deterrence to

                               7
      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 ongoing in nature.




      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 for—
      (A) the applicable category of
      o f f en s e com m itte d b y th e
      applicable category of defendant as
      set forth in the guidelines . . .
(5)   any pertinent policy statement . . .
(6)   the need to avoid unwarranted sentence
      disparities among defendants with similar
      records who have been found guilty of
      similar conduct; and
(7)   the need to provide restitution to any
      victims of the offense.

                       8
       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.


                        9
       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 am going to do.

       I am to consider the need [to avoid]
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.




In response, the Government insisted that the Court

                       10
impose a sentence that included a term of imprisonment. The
Government did not challenge Tomko’s factual assertions or
submissions. Instead, it juxtaposed his criminal conduct with
the patriotism of American soldiers fighting wars abroad and
argued that greed, not community service and philanthropy,
defined Tomko’s character. It focused on the fact that Tomko
coerced his subcontractors to file false documentation, and
highlighted the “gilded cage” nature of a sentence of home
detention. The Government claimed that it would be “absurd”
to sentence Tomko to live in the same multimillion dollar
mansion that the illegally obtained tax monies helped fund.
According to the Government, the Court’s failure to incarcerate
Tomko would send a message that a rich defendant can buy his
way out of prison, and would compromise the general deterrent
effect that tax laws have on potential tax cheats.

        Despite the Government’s arguments, the District Court
did not sentence Tomko to a term of imprisonment. Instead, the
Court sentenced Tomko to three years of probation (the first of
which would be served as home detention), participation in an
alcohol treatment program, 250 hours of community service, full
restitution, and the statutory maximum fine of $250,000. The
Court explained its sentence with the following colloquy:

              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


                               11
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. The Court views that this sentence
will address the sentencing goals of punishment,
deterrence and rehabilitation.




                        12
The Government filed a timely appeal.5

                                II.

                                A.

       Before the implementation of a Guidelines-based
sentencing system in 1984, “[s]tatutes specified the penalties for
crimes but nearly always gave the sentencing judge wide
discretion to decide whether the offender should be incarcerated
and for how long, whether he should be fined and how much,
and whether some lesser restraint, such as probation, should be
imposed instead of imprisonment or fine.” Mistretta v. United
States, 

, 363 (1989). Reviewing courts, in turn,
recognized “that the sentencing judge ‘sees more and senses
more’ than the appellate court; thus, the judge enjoyed the
‘superiority of his nether position,’ for that court’s determination
as to what sentence was appropriate met with virtually
unconditional deference on appeal.” 

(quoting
Maurice Rosenberg, Judicial Discretion of the Trial Court,
Viewed From Above, 22 Syracuse L. Rev. 635, 663 (1971)).
According to the Supreme Court, appellate review “beg[an] with
the general proposition that once it is determined that a sentence
is within the limitations set forth in the statute under which it is


5
 The District Court had jurisdiction pursuant to 18 U.S.C. §
3231, and we have jurisdiction to review the Government’s
appeal under 18 U.S.C. § 3742(b) and 28 U.S.C. § 1291.

                                13
imposed, appellate review is at an end.” Dorszynski v. United
States, 

, 431 (1974).

        Concerns over sentencing disparities and the continued
viability of rehabilitation as a penological objective dogged this
sentencing system. 

. As a result, in
1984, Congress passed the Sentencing Reform Act which,
among other things, established mandatory sentencing
guidelines. 

This Act, however, “did not alter a
court of appeals’ traditional deference to a district court’s
exercise of its sentencing discretion.” Williams v. United States,

, 205 (1992). As the Supreme Court explained in
Williams, “[t]he development of the guideline sentencing regime
has not changed our view that, except to the extent specifically
directed by statute, ‘it is not the role of an appellate court to
substitute its judgment for that of the sentencing court as to the
appropriateness of a particular sentence.’” 

v.
Helm, 

, 290 n.16 (1983)).

       In United States v. Booker, 

(2005), the
Supreme Court concluded that the Sentencing Guidelines could
only be advisory, 

and instructed courts of appeals to
review the sentencing court’s “broad discretion in imposing a
sentence within a statutory range,” 

for
“unreasonableness,” 

Subsequently, Gall made it
plain that we assess unreasonableness under the abuse-of-
discretion 

.



                               14
                                B.

        As the Court mentioned in Gall, the abuse-of-discretion
standard is “familiar” to us. See 

In the evidentiary
context, the “[a]dmission of evidence is an abuse of discretion
if the district court’s action was arbitrary, fanciful or clearly
unreasonable,” and “[w]e will not disturb a trial court’s exercise
of discretion unless no reasonable person would adopt the
district court’s view.” United States v. Frazier, 

,
87–88 (3d Cir. 2006) (internal quotations and citations omitted).
We also review a district court’s decisions concerning jury
instructions for an abuse of discretion, and “will order a new
trial on account of a district court’s refusal to give a proposed
jury instruction only when the requested instruction was correct,
not substantially covered by the instructions given, and was so
consequential that the refusal to give the instruction was
prejudicial to the defendant.” United States v. Hoffecker, 

, 167 (3d Cir. 2008) (internal quotations and citations
omitted). Attorney’s fee awards are likewise reviewed for an
abuse of discretion, “which can occur if the judge fails to apply
the proper legal standard or to follow proper procedures in
making the determination, or bases an award upon findings of
fact that are clearly erroneous.” In re Rite Aid Corp. Sec. Litig.,

, 299 (3d Cir. 2005) (internal quotations and
citations omitted).

      Two basic principles underlie the application of the
abuse-of-discretion standard. First, “deferential review is used

                                15
when the matter under review was decided by someone who is
thought to have a better vantage point than we on the Court of
Appeals to assess the matter.” United States v. Mitchell, 

, 234 (3d Cir. 2004). Accordingly, the Supreme Court
has applied the abuse-of-discretion standard where it “noted that
deference was owed to the ‘judicial actor . . . better positioned
than another to decide the issue in question.’” Koon v. United
States, 

, 98, 99 (1996) (quoting Pierce v.
Underwood, 

, 559–60 (1988)); see also Cooter &
Gell v. Hartmax Corp., 

, 401–05 (1990) (reviewing
Rule 11 sanctions for an abuse of discretion because “the district
court is better situated than the court of appeals to marshal the
pertinent facts and apply the fact-dependent legal standard
mandated by Rule 11”); 

–63 (holding
that attorney’s fee awards under the Equal Access to Justice Act
should be reviewed for an abuse of discretion). As one leading
commentator has put it, “[i]n the dialogue between the appellate
judges and the trial judge, the former often would seem to be
saying: ‘You were there. We do not think we would have done
what you did, but we were not present and we may be unaware
of significant matters, for the record does not adequately convey
to us all that went on at the trial. Therefore, we defer to you.’”

.

       Second, courts of appeals apply the abuse-of-discretion
standard to fact-bound issues that are ill-suited for appellate
rule-making. As the Supreme Court explained in Pierce:



                               16
       One of the ‘good’ reasons for conferring
       discretion on the trial judge is the sheer
       impracticability of formulating a rule of decision
       for the matter in issue. Many questions that arise
       in litigation are not amenable to regulation by rule
       because they involve multifarious, fleeting,
       special, narrow facts that utterly resist
       generalization—at least, for the time 

–62 (quoting 

); see also
Cooter & 

(“‘Fact-bound resolutions cannot
be made uniform through appellate review, de novo or
otherwise.’” (quoting Mars Steel Corp. v. Cont’l Bank N.A., 

, 936 (7th Cir. 1989))).

       Pre-Booker, these two basic principles motivated the
Supreme Court to hold that the abuse-of-discretion standard
should be used to evaluate sentencing departures under the
mandatory Guidelines system. See 

–100.6
In Koon, the Supreme Court noted that “[a] district court’s
decision to depart from the [mandatory] Guidelines . . . will in
most cases be due substantial deference, for it embodies the


6
 In 2003, Congress amended 18 U.S.C. § 3742(e) to give courts
of appeals the authority to review Guidelines departures de
novo. United States v. Parker, 

, 278 n.6 (3d Cir.
2006). In Booker, the Supreme Court excised that portion of §
3742(e), and replaced it with the abuse-of-discretion 

–62.

                               17
traditional exercise of discretion by a sentencing court.” 

The Court pointed out that determining whether a departure
was permitted required “the district court [to] make a refined
assessment of the many facts bearing on the outcome, informed
by its vantage point and day-to-day experience in criminal
sentencing.” 

district court’s departure
decision involves ‘the consideration of unique factors that are
little susceptible . . . of useful generalization,’ and as a
consequence, de novo review is ‘unlikely to establish clear
guidelines for lower courts.’” 

(quoting Cooter & 

, 405)). As a result, the Court concluded that
“[t]he appellate court should not review the departure decision
de novo, but instead should ask whether the sentencing court
abused its discretion.” 

        Post-Booker, the sentencing court’s superior vantage
point has been the oft-cited reason for applying the abuse-of-
discretion standard to sentencing review. In Gall, the Court
emphasized that “[t]he sentencing judge is in a superior position
to find facts and judge their import under § 3553(a) in the
individual case. The judge sees and hears the evidence, makes
credibility determinations, has full knowledge of the facts and
gains insights not conveyed by the 

(internal quotations and citations omitted). This means that
“[t]he sentencing judge has access to, and greater familiarity
with, the individual case and the individual defendant before
him than the [Sentencing] Commission or the appeals court.”

(quoting Rita v. United States, 

,

                               18
2469 (2007)). Additionally, “district courts have an institutional
advantage over appellate courts in making these sorts of
determinations, especially as they see so many more Guidelines
sentences than appellate courts do.” 

(internal
quotations and citation omitted). For example, “[d]istrict judges
sentence, on average, 117 defendants every year . . . [whereas]
[o]nly a relatively small fraction of these defendants appeal their
sentence on reasonableness grounds.” 

n.7 (citations
omitted). Accordingly, “[o]ur responsibility on appellate review
of a criminal sentence is limited yet important: we are to ensure
that a substantively reasonable sentence has been imposed in a
procedurally fair way.” United States v. Levinson, 

, 195 (3d Cir. 2008).7

                                 C.

       In the wake of Booker, it is essential that district courts
make an “individualized assessment based on the facts
presented.” 

. In doing so, it is equally
important that district courts provide courts of appeals with an


7
 Although the Supreme Court did not mention it as a rationale
for applying the abuse-of-discretion standard to the current
sentencing system, we recognize that sentencing decisions have
become no less fact-bound than before. Sentencing still requires
district courts to “resolve questions involving ‘multifarious,
fleeting, special, narrow facts that utterly resist generalization.’”

(quoting Cooter & 

).

                                 19
explanation “sufficient for us to see that the particular
circumstances of the case have been given meaningful
consideration within the parameters of § 3553(a).” 

. We also must have “sufficient justifications on
the record to support the sentencing conclusions.” 

can articulate no uniform threshold for sufficiency because
of the fact-bound nature of each sentencing decision, we
certainly always demand more than a rote recitation of the §
3553(a) factors if “at sentencing either defendant or the
prosecution properly raises ‘a ground of recognized legal merit
(provided it has a factual basis)’ and the court fails to address
it.” United States v. Cooper, 

, 329 (3d Cir. 2006)
(quoting United States v. Cunningham, 

, 679 (7th
Cir. 2005)). Only then will we have enough to conduct our
“limited yet important” review. 

.

        District courts must provide their explanations and
justifications while going through three steps at sentencing. As
we outlined in Levinson:

       A district court must begin the process by first
       calculating the applicable Guidelines range. After
       that initial calculation, the court must then rule on
       any motions for departure and, if a motion is
       granted, state how the departure affects the
       Guidelines calculation. Finally, after allowing the
       parties an opportunity for argument, the court
       must consider all of the § 3553(a) factors and
       determine the appropriate sentence to impose,

                                20
       which may vary from the sentencing range called
       for by the Guidelines.

“Thus, the sentencing court subjects the
defendant’s sentence to the thorough adversarial testing
contemplated by federal sentencing procedure.” 

.

        Our appellate review proceeds in two stages. It begins by
“ensur[ing] that the district court committed no significant
procedural error, such as failing to calculate (or improperly
calculating) the Guidelines range, treating the Guidelines as
mandatory, failing to consider the § 3553(a) factors, selecting a
sentence based on clearly erroneous facts, or failing to
adequately explain the chosen sentence—including an
explanation for any deviation from the Guidelines range.” 

. We do not presume that a district court
considered the factors solely because the sentence falls within
the Guidelines range. 

–30. If a district
court’s procedure passes muster, “we then, at stage two,
consider its substantive reasonableness.” 

. Our substantive review requires us not to focus on one or
two factors, but on the totality of the circumstances. 

; United States v. Howe, 

, 137 (3d Cir.
2008).     Indeed, we cannot presume that a sentence is
unreasonable simply because it falls outside the advisory
Guidelines range. 

. At both stages of our
review, the party challenging the sentence has the burden of


                               21
demonstrating unreasonableness. 

.

        The abuse-of-discretion standard applies to both our
procedural and substantive reasonableness inquiries. Gall, 

; United States v. Wise, 

, 217–18 (3d Cir.
2008). For example, an abuse of discretion has occurred if a
district court based its decision on a clearly erroneous factual
conclusion or an erroneous legal conclusion. 

. This also means that, absent any significant procedural
error, we must “give due deference to the district court’s
determination that the § 3553(a) factors, on a whole,” justify the
sentence. 

; see also United States v.
Bungar, 

, 543 (3d Cir. 2007) (stating that, as an
appellate court, we are “highly deferential” to the sentencing
court’s application of the § 3553(a) factors). In other words, if
the district court’s sentence is procedurally sound, we will
affirm it unless no reasonable sentencing court would have
imposed the same sentence on that particular defendant for the
reasons the district court provided.

       Ultimately, “[t]he touchstone of ‘reasonableness’ is
whether the record as a whole reflects rational and meaningful
consideration of the factors enumerated in 18 U.S.C. § 3553(a).”
United States v. Grier, 

, 571 (3d Cir. 2007) (en
banc); see also 

(“[W]hat 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).” (internal quotations and

                               22
citation omitted)). “An estimation of the outer bounds of what
is ‘reasonable’ under a given set of circumstances may not
always be beyond debate, but the abuse-of-discretion standard
by which that estimation must be judged limits the debate and
gives district courts broad latitude in sentencing.” 

.

                               III.

        The Government makes only one claim of procedural
error: it argues that the District Court failed to meaningfully
consider general deterrence. Based on our review of the record,
we cannot agree. 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.” 

(emphasis added); see
also 

(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,” 

, and rejected the ones the Government made concerning
general deterrence.       At the sentencing proceeding, the
Government exhaustively asserted, directly in front of the
District Court, that a probationary sentence would adversely
affect general deterrence:

             A lengthy term of incarceration is also
       important for something you didn’t mention in

                               23
      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. You won’t have to go to
      jail.

             Our tax system, Your Honor, is dependent
      on the honesty of our citizenry, and a lengthy term
      of incarceration for this tax cheat validates that
      system. A sentence of probation invalidates that
      system. We need to [deter] this type of crime,
      Your Honor; and the threat of jail is real for these
      white collar criminals that commit tax fraud.

              What we need to do is make good on that
      threat. That threat, if it simply isn’t followed
      through on, is just a threat. It’s not real
      deterrence. Real deterrence is jail. That’s what
      makes people like Mr. Tomko think before they
      sign that bogus tax return, before they cheat on
      their taxes. They see it in the paper: Tax cheats
      go to jail. Maybe they’ll think next time they sign
      that tax return.

Almost immediately after the Government made these
statements, the District Court sentenced Tomko. The District


                               24
Judge noted that he viewed Tomko’s sentence as “address[ing]
the sentencing goals of punishment, deterrence and
rehabilitation.” (Emphasis added.) This demonstrates that the
District Court heard the Government’s impassioned plea,
considered general deterrence, and handed down Tomko’s
sentence.8 Therefore, we conclude that the District Court did
not commit any procedural error at Tomko’s sentencing. See

(“In our view, given the straightforward,
conceptually simple arguments before the judge, the judge’s
statement of reasons here, though brief, was legally sufficient.”).

                               IV.

      The crux of the Government’s appeal is its claim that
Tomko’s sentence is substantively unreasonable. At oral
argument, the Government reaffirmed that it would not be



8
 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.”
(Emphasis added.)

                                25
satisfied even if the District Court corrected the alleged
procedural error on remand, but imposed the same sentence. In
the Government’s view, Tomko’s sentence is substantively
unreasonable because 1) detention in the house that Tomko
partially funded with the illegal tax proceeds is plainly
unreasonable, 2) this is a mine-run tax evasion case undeserving
of such a lenient sentence, and 3) the statutory maximum fine
cannot cure the claimed substantive deficiencies.

        We reject the Government’s first and third arguments
with limited discussion. Concerning the first, the Government
has narrowed its objections to too fine a point by focusing its
objections solely on the location of Tomko’s home detention.
The Government admitted at oral argument that had the District
Court sentenced Tomko to serve his detention in a different
house—for example, as the Government suggested, “one of
those Habitat for Humanity buildings that he was building in
New Orleans could do,” (Tr. of Oral Argument 23)—it may not
have appealed. Although we agree with the Government that
the sort of “gilded cage” confinement imposed here has a certain
unseemliness to it, we do not believe that this condition of
sentence, by itself, constitutes an abuse of discretion. Whether
detention in a particular home is appropriate punishment is
precisely the type of fact-bound inquiry that a sentencing court
is better suited to make. Even the Guidelines leave this
determination to the sound discretion of the sentencing court.
See U.S. Sentencing Guidelines Manual § 5F1.2 cmt. 3 (1997)
(“The defendant’s place of residence, for purposes of home

                              26
detention, need not be the place where the defendant previously
resided. It may be any place of residence, so long as the owner
of the residence . . . agrees to any conditions that may be
imposed by the court . . . .” (emphasis added)). We are in no
position to second-guess that decision here.

        The Government’s third claim rests on a perceived link
between the District Court’s variance to a probationary sentence
and its imposition of the statutory maximum fine. According to
the Government, the District Court permitted Tomko to buy his
way out of prison. This is not simply an overly-pejorative
characterization of the sentence; it is a misreading of the record
that is unfair to the District Court. Indeed, the record exhibits
no connection between the fine imposed and the failure to
incarcerate. To the contrary, the District Court explicitly stated
that the two served unrelated purposes. On the one hand,
probation was warranted because of Tomko’s negligible
criminal history, his record of employment, his community ties,
and his extensive charitable works. On the other hand, the
statutory maximum fine was necessary to effect deterrence in
light of Tomko’s wealth. We cannot conclude that the District
Court abused its discretion where there exists nothing more than
an implication of impropriety arising out of simple coincidence.

        The Government’s final argument—that this is an overly
lenient sentence in a mine-run case—deserves more attention.
At the outset, we address the Government’s characterization of
this case as a “mine-run” case. To the extent that the typicality

                               27
or uniqueness of a case is relevant, the Supreme Court has made
clear that it does not alter our deferential standard of review
when evaluating a district court’s sentencing determination. To
that end, the Court observed in Gall that:

       [i]t has been uniform and constant in the federal
       judicial tradition for the sentencing judge to
       consider every convicted person as an individual
       and every case as a unique study in the human
       failings that sometimes mitigate, sometimes
       magnify, the crime and punishment to ensue. The
       uniqueness of the individual case, however, does
       not change the deferential abuse-of-discretion
       standard of review that applies to all sentencing
       

(internal quotation omitted). Such deference
acknowledges the district court’s “institutional advantage over
appellate courts,” 

or what the Court in Gall labeled
the “[p]ractical considerations,” 

Accordingly, we
must apply the abuse-of-discretion standard uniformly,
regardless of whether a particular case appears to be a “mine-
run” case on appeal.

       The Government points out that “closer review may be in
order when the sentencing judge varies from the Guidelines
based solely on the judge’s view that the Guidelines range fails
to properly reflect § 3553(a) considerations even in a mine-run
case.” Kimbrough v. United States, 

, 575 (2007)

                              28
(internal quotations and citation omitted). This case, however,
is different from those like Kimbrough, which involved the
“district court’s authority to vary from the . . . Guidelines based
on policy disagreement with them, and not simply based on an
individualized determination that they yield an excessive
sentence in a particular case.” Spears v. United States, 129 S.
Ct. 840, 843 (2009) (per curiam). Here, the District Court did
not vary from the Guidelines range “solely” based on a
disagreement with its ability to properly reflect § 3553(a)
considerations. 

. Instead, the
Court made an individualized determination that the Guidelines
range recommended an excessive sentence in this instance. As
a result, we are not reviewing “an ‘inside the heartland’
departure (which is necessarily based on a policy disagreement
with the Guidelines and necessarily disagrees on a ‘categorical
basis’) [that] may be entitled to less respect” in this case.

.9

        In essence, the Government is asking this Court to apply
the already-rejected “proportionality test” by a different name.
The Government’s appeal boils down to a claim that Tomko’s
criminal history, employment record, community ties, and
charitable works do not differentiate him enough from the
“mine-run” tax evasion case to justify his below-Guidelines


9
 We see no need in this case to elaborate further on what the
“closer review” and “less respect” mentioned in Kimbrough and
Spears might entail.

                                29
sentence. Similarly, a “proportionality test” rests on “the
proposition that the strength of the justification needed to
sustain an outside-Guidelines sentence varies in proportion to
the degree of the variance.” 

. As
applied by some courts of appeals, this meant that “a sentence
that constitute[d] a substantial variance from the Guidelines [had
to] be justified by extraordinary circumstances.” Gall, 128 S.
Ct. at 591. In Gall, the Supreme Court explicitly barred the
application of such an approach because it necessarily applies a
“heightened standard of review to sentences outside the
Guidelines range.” 

That, of course, is “inconsistent
with the rule that the abuse-of-discretion standard of review
applies to appellate review of all sentencing decisions—whether
inside or outside the Guidelines range.” 

sure, “we may look for a more complete
explanation to support a sentence that varies from the Guidelines
than we will look for when reviewing a sentence that falls
within a properly calculated Guidelines range.” 

. We may also properly consider “the extent of any
variance from the Guidelines range.” 

.
As the Supreme Court has explained, “it [is] uncontroversial that
a major departure should be supported by a more significant
justification than a minor one.” 

not mean,
however, that we elevate our review of any variance and its
accompanying explanation or justification beyond the abuse-of-
discretion standard. The Supreme Court has unequivocally
stated that “courts of appeals must review all

                               30
sentences—whether inside, just outside, or significantly outside
the Guidelines range—under a deferential abuse-of-discretion
standard.” Id at 591. We must remain faithful to that clear
instruction.

        Based on our review of the record, we conclude that the
District Court did not abuse its discretion here. At Tomko’s
sentencing hearing, 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 full restitution. See 18 U.S.C. § 3553(a)(7). After
hearing argument from the Government concerning the need for
a term of imprisonment, the Court reiterated its reasons for
imposing a sentence without one. The District Court gave
specific reasons for why Tomko’s sentence varies from the
Guidelines range. This variance took into account his negligible
criminal history, his employment record, his community ties,
and his extensive charitable works 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. Indeed, the District Court provided more than just a
boilerplate recitation of the § 3553(a) factors; it detailed, step-
by-step, its individualized assessment of the sentence that it
believed appropriate in this particular case.

       The District Court’s reasons are also “logical and
consistent with the factors set forth in section 3553(a).” 

(internal quotations and citation omitted). They

                                31
are fully supported by the record. The Government does not
dispute that Tomko had a negligible criminal history and that,
because of his prominence in the company, his incarceration
would threaten the jobs of Tomko, Inc.’s over-300 employees.
As for Tomko’s charitable works, even the Government
conceded at oral argument that “[t]he district court was entitled
to give it whatever weight the district court wanted.” (Tr. of
Oral Argument 17.) Several dozen letters written on Tomko’s
behalf prior to his sentencing also demonstrate Tomko’s
community ties and extensive charitable works. These letters
indicate that Tomko performed pre-indictment 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
thirty 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
“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

                                32
will also transform the life of Bill Tomko.”

        Additionally, 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
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 yards. 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’s 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

                               33
timely, unselfish, and meaningful contributions to Pittsburgh
Habitat for Humanity’s construction operations.” 10

       Pre-Booker, we approved of a similar sentencing
departure on similar facts for similar reasons despite applying a
higher standard of review. In United States v. Fred E. Cooper,

(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. 

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, and had a Guidelines range of
fifteen to twenty-one months. 

Notably, this
Court applied the less-deferential de novo standard of review
that Congress required after 2003.11 As a result, Fred E. Cooper
weighs in favor of affirming Tomko’s sentence. See United
States v. Jackson, 

, 839 (3d Cir. 2006) (instructing
that “[p]re-Booker law regarding Guidelines departures,

10
  We realize that it is possible to question the sincerity of
Tomko’s work for Habitat for Humanity because it only began
after his indictment. But this merely underscores the district
court’s institutional advantage at sentencing. Our view is from
the level of thirty-thousand feet; appellate judges may suspect
that these works have been corrupted by impure motives. The
District Court, however, is on the ground and can better separate
sincerity from self-seeking.
11
     See supra note 6.

                               34
therefore, necessarily informs the sentencing process—for
district courts and for us”).

       It bears mentioning that the District Court’s variance here
was not substantial. The difference between Tomko’s actual
sentence and the lower end of his Guidelines range is twelve
months. Calling it a 100-percent variance is misleading. As
Gall points out, “deviations from the Guidelines range will
always appear more extreme—in percentage terms—when the
range itself is low, and a sentence of probation will always be a
100% departure . . . 

. Additionally,
“quantifying the variance as a certain percentage of the
maximum, minimum, or median prison sentence recommended
by the Guidelines gives no weight to the ‘substantial restriction
of freedom’ involved in a term of supervised release or
probation.” 

       We cannot say that, in absolute terms, the variance here
was so large that it was per se unreasonable. In Gall, the
Supreme Court affirmed a district court’s probationary sentence
where the advisory Guidelines range was thirty to thirty-seven
months of 

. Similarly, post-
Gall, a number of courts of appeals, including our own, have
affirmed sentences that involved greater variances or departures
than the one here. See, e.g., 

(affirming
a probationary sentence where the Guidelines range was
eighteen to twenty-four months of imprisonment); see also
United States v. Gardellini, 

, 1094 n.5 (D.C. Cir.

                               35
2008) (collecting cases).12 “It will be a rare case when it is clear
that no acceptable reasoning can justify a given sentence.”

. This is not one of them.

       The Government claims that affirming Tomko’s sentence
promotes sentencing disparities and, in turn, undermines general
deterrence. Whatever the merits of this possibility, it does
nothing to change our disposition. The Government’s concern
is not new; it has been a point of constant focus throughout
sentencing review’s evolution. Before the Guidelines existed,
“[s]erious disparities in sentences . . . were common.” 

. When Congress created the mandatory
Guidelines system, it did so “to ‘provide certainty and fairness
in meeting the purposes of sentencing, [while] avoiding
unwarranted sentencing disparities . . . [and] maintaining
sufficient flexibility to permit individualized sentences when
warranted.’” 

(quoting 28 U.S.C. §
991(b)(1)(B)).     When the Supreme Court rendered the
Guidelines advisory, it was fully aware that sentencing
disparities would likely increase. See 

(“We cannot
and do not claim that use of a ‘reasonableness’ standard will
provide the uniformity that Congress originally sought to
secure.”).


12
 Excluding Howe, the Gardellini Court identified nine post-
Gall cases from the various circuits affirming upward and
downward variances greater than twelve months. 

n.5.

                                36
       Despite that awareness, the Booker Court was confident
that the advisory Guidelines system would “continue to move
sentencing in Congress’ preferred direction, helping to avoid
excessive sentencing disparities while maintaining flexibility
sufficient to individualize sentences where necessary.” 

In Gall, the Court reaffirmed that “a more deferential
abuse-of-discretion standard could successfully balance the need
to ‘reduce unjustified disparities’ across the Nation and
‘consider every convicted person as an 

n.8 (quoting 

).

        If abuse-of-discretion review cannot strike such a
balance, it is not our role as appellate judges to adjust the scales.
“The National Legislature is equipped to devise and install, long
term, the sentencing system, compatible with the Constitution,
that Congress judges best for the federal system of justice.”

; see also 

(Souter, J., concurring) (“I continue to think that the best
resolution of the tension between substantial consistency
throughout the system and the right of jury trial would be a new
Act of Congress: reestablishing a statutory system of mandatory
sentencing guidelines (though not identical to the original in all
points of detail), but providing for jury findings of all facts
necessary to set the upper range of sentencing discretion.”). The
risk of affirming an unwarranted sentencing disparity in this
case is one we must accept while following the Supreme Court’s
“pellucidly clear” command that we apply the abuse-of-
discretion standard of review. 

.

                                 37
         Our decision today should not suggest that variances of
the size and character of Tomko’s will always be substantively
reasonable.        District courts must make sentencing
determinations on an individualized basis. See 

. Accordingly, the substantive reasonableness of each
sentence must be evaluated on its own terms, based on the
reasons that the district court provided, in light of the particular
facts and circumstances of that case. As we recognized in
Howe, “the point is that each case must be reviewed on its own
. . . 

.

        In sum, a significant number of us, if we were sitting as
the district judge, might have applied the § 3553(a) factors
differently had we been the sentencing court. But this
disagreement does not, by itself, demand reversal. Gall, 128 S.
Ct. at 597; see also United States v. Schweitzer, 

,
204 (3d Cir. 2006) (“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.”). We reverse only when we discern an abuse-of-
discretion. Looking at the record before us, we fail to see one
here.

                                V.

        In order for the Guidelines regime to be truly advisory, a
district court must be potentially able, when the proper situation
arises, to sentence a defendant outside the Guidelines range but

                                38
within the statutory range. Any other conclusion would alter the
statutory sentencing scheme enacted by Congress and
interpreted by Booker. Here, the District Court conducted a
thorough analysis of the § 3553(a) factors and provided a
complete explanation of the reasons underlying Tomko’s
sentence. Holding Tomko’s sentence unreasonable under these
circumstances might exert a subtle, though unintended pressure
upon district courts to either craft sentences within the
Guidelines range or ignore substantial upward or downward
variances altogether. Such a result would be contrary to Rita’s
declaration that courts of appeals may adopt only a “nonbinding
appellate presumption that a Guidelines sentence is reasonable
. . . .” 

(emphasis added).

        Our holding in this case is not an exercise in self-
abnegation. Courts of appeals unquestionably have an important
role to play in reviewing district courts’ sentencing decisions.
But it is a limited role. Neither Gall nor Rita suggests that
courts of appeals should do anything more than ensure the
reasonableness of federal sentences. It bears repeating that
“[t]he touchstone of ‘reasonableness’ is whether the record as a
whole reflects rational and meaningful consideration of the
factors enumerated in 18 U.S.C. § 3553(a).” 

. Simply put, reasonableness review requires us to do
nothing more and nothing less than to apply the deferential
abuse-of-discretion standard, a role quite familiar to us. 

. “We do not seek to second guess. Given the
widely recognized institutional advantages that district courts

                              39
have in access to and consideration of evidence, we would be
foolish to try.” 

.

       We must be mindful that the Sentencing Guidelines
“reflect a rough approximation of sentences that might achieve
§ 3553(a)’s objectives,” 

, and the
Sentencing Commission has carried out those objectives at
“wholesale,” 

The sentencing judge, in contrast,
carries out the § 3553(a) objectives at “retail,” 

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,” 

Here, the record demonstrates the District Court’s thoughtful
attempt to tailor the off-the-rack Guidelines recommendations
into a sentence that fits Tomko personally. Where it believed
the Guidelines recommendations too large or too small—for
example, in the advisory ranges for imprisonment and fine—the
Court took care to explain why this was the case before making
the adjustments it felt necessary. This is precisely the type of
individualized assessment that Gall demands, and to which we
must defer. Accordingly, we will affirm the sentence that the
District Court imposed.

FISHER, Circuit Judge, dissenting, with whom Chief Judge
Scirica, Judge Sloviter, Judge Rendell and Judge Cowen join.




                              40
                                I.

       As the procedural history of this appeal clearly shows,
this Court has wrestled with the decision in this case for close to
two and one half years, during which time the judges on this
Court have tried to determine whether the sentence given for
this crime was substantively reasonable. The offense we
encounter in this case is no garden variety tax evasion. The
conduct underlying the offense involved an intricate scheme
spanning several years and involved the coercion and
coordination of numerous other individuals, all for the personal
gain of one man, William G. Tomko, Jr., a successful business
owner with the means to easily pay the taxes he owed to the
Government.

       Tomko’s fraudulent tax evasion scheme revolved around
the construction of his luxurious new home in southwestern
Pennsylvania. During the construction of this home, Tomko had
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. The
Internal Revenue Service-Criminal Investigation Division
investigators interviewed seventeen individuals with respect to
Tomko’s scheme. While the details varied from individual to
individual, a consistent pattern of conduct emerged: At
Tomko’s behest, subcontractors who performed work at his
residence were instructed to write billing invoices that made it

                                41
appear that their 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.13 As a result, the construction costs were diverted
from Tomko personally to Tomko’s company, which then
deducted them as business expenses, while Tomko also failed to
report as personal income the value of the services provided to
him at no cost. Thus, Tomko’s income was under-represented
in two regards: The profits earned by his business appeared to
be less and the substantial benefit he received as a result of the
construction of a new 8,000-square-foot home went
unreported.14

       Tomko’s scheme resulted in a stipulated tax deficiency
of $228,557; however, a disputed portion of the record included
evidence that the pervasiveness of his scheme was even more
extensive. In particular, the Government presented evidence
that Tomko on more than one occasion told individuals that his



13
 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.
14
  Because Tomko, Inc. is classified as a “flow-through”
Subchapter S Corporation under the federal tax code, Tomko,
the individual, was required to include on his personal income
tax return his share of the company’s items of income,
deduction, loss, and credit.

                               42
vacation home in Maryland was “a gift from Uncle Sam.”
Because the Government was unable to provide reliable figures
to account for the impact of this alleged fraud with respect to the
tax loss incurred by the Government, this disputed evidence
apparently did not factor into the District Court’s judgment of
sentence, and we mention it solely to underscore the point that
we are not faced with a garden variety case of tax evasion.

       Tomko pleaded guilty to a one-count information
charging him with tax evasion, in violation of 26 U.S.C. § 7201.
His properly calculated Guidelines range was twelve to eighteen
months of incarceration. At Tomko’s sentencing hearing, the
District Court stated that it had reviewed and considered all
motions and briefs submitted by the parties and then stated on
the record its consideration of the Guidelines and the § 3553(a)
factors.

       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

                                43
       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
       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 District Court recognized that
the sentence was below the Guidelines and did not include a

                               44
term of imprisonment, but explained that it had mitigated the
sentence for its stated reasons in conjunction with the factors set
forth in § 3553(a).15

       In accordance with the standard announced by the
Supreme Court in United States v. Booker, 

(2005),
our task on appeal is to review the sentence imposed by the
District Court for “reasonableness.” 16 In Gall v. United States,



15
  The District Court in this case did not grant Tomko a
downward departure based on his charitable acts or any other
ground, but rather took them into consideration as mitigating
factors in the course of its analysis of § 3553(a). See United
States v. Vampire Nation, 

, 195 n.2 (3d Cir. 2006)
(explaining the distinction between departures and variances).
16
  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, state on the record whether
they are granting a departure and how that departure affects the
Guidelines calculation, and take into account our Circuit’s
pre-Booker case law, which continues to have advisory force;
and (3) they are required to “exercise their discretion by
considering the relevant § 3553(a) factors” in setting the
sentence they impose regardless of whether it varies from the
sentence calculated under the Guidelines. United States v.
Gunter, 

, 247 (3d Cir. 2006) (alterations omitted).

                                45


(2007), the Supreme Court clarified that appellate
reasonableness review involves two steps: the first procedural
and the second substantive. The Supreme Court categorized,
inter alia, “failing to consider the § 3553(a) factors” and “failing
to adequately explain the chosen sentence,” as procedural errors
under the first step of Gall. 

The Court then
instructed:

       “Assuming that the district court’s sentencing
       decision is procedurally sound, the appellate court
       should then c onside r the substantiv e
       reasonableness of the sentence imposed under an
       abuse-of-discretion standard. When conducting
       this review, the court will, of course, take into
       account the totality of the circumstances,
       including the extent of any variance from the
       Guidelines range. If the sentence is within the
       Guidelines range, the appellate court may, but is
       not required to, apply a presumption of
       reasonableness. But if the sentence is outside the
       Guidelines range, the court may not apply a
       presumption of unreasonableness.           It may
       consider the extent of the deviation, but must give
       due deference to the district court’s decision that
       the § 3553(a) factors, on a whole, justify the
       extent of the variance.”

omitted) (emphasis added); accord United

                                46
States v. Wise, 

, 217-18 (3d Cir. 2008) (“As an
appellate court, our role is two-fold. . . . If we determine that
the district court has committed no significant procedural error,
we then review the substantive reasonableness of the sentence
under an abuse-of-discretion standard . . . .”).

        The Court in Gall also reaffirmed its decision in Rita v.
United States, 

(2007), which emphasized the
importance of reviewing sentences for substantive
reasonableness. See 

. As the Supreme
Court stated in Rita: “In sentencing, as in other areas, district
judges at times make mistakes that are substantive. At times,
they will impose sentences that are unreasonable. Circuit courts
exist to correct such mistakes when they 

.      Consequently, the substantive component of
reasonableness review, while deferential, is not impotent.

       For these reasons, we disagree with the Majority’s
statement that “if the district court’s sentence is procedurally
sound, we will affirm it unless no reasonable sentencing court
would have imposed the same sentence on that particular
defendant for the reasons the district court provided.” Majority
Op. at Part II.C. We recognize that “appellate review of
sentencing decisions is limited to determining whether they are
‘reasonable,’” 

, but we believe that
encompassed within this limited role is the authority and the
obligation to vacate sentences that are substantively
unreasonable. Therefore, although the Supreme Court “made it

                               47
pellucidly clear that the familiar abuse-of-discretion standard of
review now applies to appellate review of sentencing decisions,”

agree with the Majority’s characterization of the
appellate courts’ role in reviewing sentences as “requir[ing] us
to do nothing more and nothing less than to apply the deferential
abuse-of-discretion standard.” Majority Op. at Part V. We
believe that when the Supreme Court instructed appellate courts
to review for both procedural and substantive reasonableness, it
meant what it said. Accordingly, because we conclude that this
sentence is substantively unreasonable, we dissent.

                                II.

        This case presents the opportunity for us to examine the
implications of the Supreme Court’s directive in Gall that in
reviewing for reasonableness, appellate courts are to conduct a
substantive inquiry as well as a procedural one. We are not the
first court of appeals which has wrestled with the concept of
engaging in a deferential review of the substantive
reasonableness of sentences. See, e.g., United States v. Cavera,

, 191 (2d Cir. 2008) (“At the substantive stage of
reasonableness review . . . we consider whether the factor, as
explained by the district court, can bear the weight assigned it
under the totality of circumstances in the case. . . . Accordingly,
we will continue to patrol the boundaries of reasonableness,
while heeding the Supreme Court’s renewed message that
responsibility for sentencing is placed largely in the precincts of
the district courts.”); United States v. Taylor, 

, 69-70

                                48
(1st Cir. 2008) (explaining its view that although district courts
are “empowered with considerable discretion in sentencing,”
recent Supreme Court decisions have also “underscored the
importance of the district court’s justifications” for sentencing
decisions); United States v. Abu Ali, 

, 265 (4th Cir.
2008) (“While Gall assuredly made clear the limited and
deferential role of appellate courts in the sentencing process, see
[128 S. Ct.] at 597-98, it was not a decision wholly without
nuance or balance.”). The Court of Appeals for the Eleventh
Circuit provided the following explanation post-Gall:

       “[Gall’s] directives leave no doubt that an
       appellate court may still overturn a substantively
       unreasonable sentence, albeit only after
       examining it through the prism of abuse of
       discretion, and that appellate review has not been
       extinguished. Thus, a sentence still may be
       substantively unreasonable if it does not achieve
       the purposes of sentencing stated in § 3553(a).
       So, even though we afford ‘due deference to the
       district court’s decision that the § 3553(a) factors,
       on a whole, justify the extent of the variance,’
       

, we may find that a district
       court has abused its considerable discretion if it
       has weighed the factors in a manner that
       demonstrably yields an unreasonable sentence.
       We are therefore still required to make the
       calculus ourselves, and are obliged to remand for

                                49
       resentencing if we are left with the definite and
       firm conviction that the district court committed
       a clear error of judgment in weighing the
       § 3553(a) factors by arriving at a sentence that
       lies outside the range of reasonable sentences
       dictated by the facts of the case.”

United States v. Pugh, 

, 1191 (11th Cir. 2008)
(select internal quotation marks and citations omitted).

        We agree wholeheartedly with the reasoning expressed
by our sister circuits. If the substance of a sentence is not
“logical and consistent” with the § 3553(a) factors or fails to
“reasonably appl[y]” them to “the circumstances of the case,”
United States v. Cooper, 

, 330 (3d Cir. 2006), the
sentence is not substantively reasonable and does not survive
abuse-of-discretion review. Therefore, while “reasonableness
is a range, not a point,” 

n.11, a range by definition has
both upper and lower limits that will be exceeded in some cases.
See Eastway Construction Corp. v. City of N.Y., 

,
123 (2d Cir. 1987) (“The concept of discretion implies that a
decision is lawful at any point within the outer limits of the
range of choices appropriate to the issue at hand; at the same
time, a decision outside those limits exceeds or, as it is
infelicitously said, ‘abuses’ allowable discretion.”). In this case,
we undertake our duty, as outlined in Gall, to review whether
the sentence Tomko received exceeded the lower bounds of that
range.

                                50
                              III.

        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. 

. 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 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.” United States v. Crisp, 

,
1291 (11th Cir. 2006). As we will more fully explain, the
District Court abused its discretion in imposing the sentence it
did in this case in light of the facts and circumstances in the
record and the § 3553(a) factors.

                               A.

        As an initial matter, we address the Government’s
argument that Tomko’s sentence was procedurally unreasonable
because the District Court failed to consider general deterrence
in arriving at its sentencing decision. We find this argument
unavailing. Although the District Court never expressly
mentioned general deterrence, the Majority correctly notes that
a sentencing court is not required to “discuss and make findings

                               51
as to each of the § 3553(a) factors if the record makes clear the
court took the factors into account in sentencing.” 

. Based on the record, we cannot conclude that the
District Court failed to consider deterrence in the course of
sentencing Tomko.

        And while our task of reviewing the reasonableness of a
sentence would be aided by a more explicit analysis of the
District Court’s consideration of deterrence, whether specific or
general, ultimately this perceived procedural deficiency is not at
the root of the sentence’s unreasonableness. As the Government
acknowledged at oral argument, even if the sentence was
vacated and remanded to the District Court in order to remedy
this alleged procedural error, if the District Court nonetheless
imposed the same sentence, the Government would still
maintain that the sentence was unreasonable. Thus, it is not the
District Court’s failure to expressly consider general deterrence
that causes us to doubt the reasonableness of the sentence so
much as the “totality of the circumstances” surrounding the
District Court’s decision and the “extent of . . . variance from
the Guidelines range.” 

. Accordingly,
although we may question whether the sentence the District
Court imposed reflects the sentencing goal of deterrence, under
Gall’s two-step framework, this concern relates to the
substantive reasonableness of the sentence as opposed to its
procedural reasonableness.

                               B.

                               52
        Based on the guidance that the Supreme Court in Gall
provided to appellate courts with respect to engaging in
substantive reasonableness review, we begin our task by looking
to the Sentencing Guidelines. See 

this
review, the court will, of course, take into account the totality of
the circumstances, including the extent of any variance from the
Guidelines range. If the sentence is within the Guidelines range,
the appellate court may, but is not required to, apply a
presumption of reasonableness. But if the sentence is outside
the Guidelines range, the court may not apply a presumption of
unreasonableness.” (internal citation omitted)); see also 

(“[T]he guidelines are the starting point for the
fashioning of an individualized sentence, so a major deviation
from them must ‘be supported by a more significant justification
than a minor one.’” (quoting 

) (select
internal quotation marks omitted)).17 And although the

17
  We need not resolve today whether our appellate review
extends to ensure that district courts “must” support a major
deviation by a more significant justification. All the Supreme
Court stated in Gall was that it found it “uncontroversial that a
major departure should be supported by a more significant
justification than a minor one.” 

. We
thus leave for another day the task of defining the precise
contours of that statement. Nonetheless, we note the nuanced
distinction in language to highlight just how modest our
appellate approach is. Here, even when we do not require “a
more significant justification” from the District Court for its
“major” deviation from the Guidelines, the justification it did

                                53
Guidelines are advisory, they must still be afforded due weight
as a factor under § 3553(a)(4). See Kimbrough v. United States,

, 574 (2007) (explaining that the Court’s decisions
have “preserved a key role for the Sentencing Commission . . .
[, which] has the capacity courts lack to base its determinations
on empirical data and national experience, guided by a
professional staff with appropriate expertise” (internal quotation
marks and citation omitted)); United States v. Goff, 

, 260 (3d Cir. 2007) (“[O]ne of the reasons that the
Guidelines are of significant assistance in sentencing is that they
incorporate the results of research into what may be called the
‘heartland’ of sentencing considerations and incarceration
periods for typical offenses and offenders.”); see also Abu 

(“[T]he applicable guidelines range plays an
important role.”).

         Indeed, 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.” 

; see also 

(“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. . . . [The Commission] has tried to
embody in the Guidelines the factors and considerations set
forth in § 3553(a).”); United States v. Goldberg, 

,
673 (7th Cir. 2007) (describing the Guidelines as “drafted by a


provide fails to support the degree of downward variance.

                                54
respected public body with access to the best knowledge and
practices of penology”).

        As numerous courts have recognized, the Guidelines
serve a particularly important purpose in the area of white-collar
crime. For instance, the Supreme Court in Mistretta v. United
States, 

, 375 n.9 (1989), noted that the Senate
Report on the Sentencing Reform Act “gave specific examples
of areas in which prevailing sentences might be too lenient,
including the treatment of major white-collar criminals.”
Accord United States v. Ebbers, 

, 129 (2d Cir.
2006) (“[T]he Guidelines reflect Congress’ judgment as to the
appropriate national policy for [white-collar] crimes . . . .”);
United States v. Mueffelman, 

, 40 (1st Cir. 2006)
(noting the importance of “the minimization of discrepancies
between white- and blue-collar offenses”). In United States v.
Martin, the Court of Appeals for the Eleventh Circuit provided
the following explanation:

       “Our assessment is consistent with the views of
       the drafters of § 3553. As the legislative history
       of the adoption of § 3553 demonstrates, Congress
       viewed deterrence as ‘particularly important in the
       area of white collar crime.’ S. Rep. No. 98-225,
       at 76 (1983), reprinted in 1984 U.S.C.C.A.N.
       3182, 3259. Congress was especially concerned
       that prior to the Sentencing Guidelines, ‘[m]ajor
       white collar criminals often [were] sentenced to

                               55
       small fines and little or no imprisonment.
       Unfortunately, this creates the impression that
       certain offenses are punishable only by a small
       fine that can be written off as a cost of doing
       business.’ Id.”

, 1240 (11th Cir. 2006).

       In light of the important position that the Guidelines
continue to occupy in sentencing decisions, the Supreme Court
teaches that, in reviewing for substantive reasonableness, we are
to take into account “the extent of any variance from the
Guidelines range.” 

. Here, the District
Court’s decision to vary from the recommended sentence of
twelve to eighteen months of imprisonment under the
Guidelines all the way down to a term of probation amounts to
a 100% downward variance. Moreover, there is an important
qualitative difference between incarceration and no
incarceration, such that the Supreme Court in Gall specifically
“recognize[d] that custodial sentences are qualitatively more
severe than probationary sentences of equivalent terms.” 

Therefore, unlike the Majority, which characterizes this
variance as “not substantial,” Majority Op. at Part IV, we
believe that the variance the District Court granted to Tomko
constitutes both a quantitatively and qualitatively significant




                               56
deviation from the Guidelines.18

        Consistent with the Supreme Court’s instructions in Gall,
although we “may consider the extent of the deviation, [we]
must give due deference to the district court’s decision that the
§ 3553(a) factors, on a whole, justify the extent of the variance.”

Accordingly, we will consider, with appropriate
deference to the District Court, whether the § 3553(a) factors
widen or shift the District Court’s range of reasonable choices
to include the sentence it imposed, and thereby justify the extent
of the variance. Because we are to “take into account the
totality of the circumstances” in the course of our
reasonableness review, 

look first to the § 3553(a)
factors upon which the District Court expressly based its
decision to mitigate the sentence, and then we will look to the
other relevant factors, as they relate to the facts and
circumstances of record, which the District Court may have



18
  We do not mean to suggest that white-collar offenses in
general or tax evasion in particular must be met by a sentence of
incarceration. See, e.g., S. Rep. No. 98-225, at 91-92 (1983), as
reprinted in 1984 U.S.C.C.A.N. 3182, 3275 (“The placing on
probation of [a white-collar criminal] may be perfectly
appropriate in cases in which, under all the circumstances, only
the rehabilitative needs of the offender are pertinent; such a
sentence may be grossly inappropriate, however, in cases in
which the circumstances mandate the sentence’s carrying
substantial deterrent or punitive impact.”).

                                57
mentioned but did not rely upon.

                                 1.

       The District Court concluded that a significant downward
variance was merited in Tomko’s case because of his:
(1) negligible criminal history; (2) record of employment; and
(3) support for the community and extensive charitable work.
Under § 3553(a)(1), the District Court was free to consider each
of these circumstances as part of Tomko’s “history and
characteristics.” See 

(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.”). However, just because these circumstances were
permissible considerations in the District Court’s sentencing
calculus does not resolve whether they actually justified the
significant variance which the District Court granted, and
therefore we will review each of these “mitigating”
circumstances in turn.19


19
  The Majority emphasizes that the District Court “conducted a
thorough analysis of the § 3553(a) factors and provided a
complete explanation of the reasons underlying Tomko’s
sentence.” Majority Op. at Part V. However, because “failing

                                 58
       With respect to negligible criminal history, the
Government argues, citing Koon v. United States, 

,
111 (1996), that reliance on this consideration as a mitigating
factor is inappropriate insofar as Tomko’s criminal history is
already accounted for in the calculation of his Guidelines range.
However, under § 3553(a), the District Court was permitted to
give further weight to a factor covered by a specific Guidelines
provision. See United States v. Johnson, 

, 428 (7th
Cir. 2005) (stating that sentencing courts can “give further
weight to a factor covered by a specific 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’”
(quoting 

)). Still, while negligible criminal
history may have been an appropriate consideration for the
sentencing court to take into account as relevant to “the history
and characteristics of the defendant” under § 3553(a)(1), it does



to consider the § 3553(a) factors” and “failing to adequately
explain the chosen sentence” are examples that the Supreme
Court provided in Gall of what constitutes “significant
procedural 

, the District Court’s
explanation of its chosen sentence and discussion of the
§ 3553(a) factors are merely indicative of a procedurally
reasonable sentence but do not resolve whether the sentence is
substantively reasonable. Therefore, what the Majority applauds
the District Court for doing is necessary but not sufficient in
order for a sentence to be reasonable.

                               59
not provide strong support for the variance in this case because
Tomko’s status as a “first-time offender” does not differentiate
him from many, if not most, tax evaders. See 

(explaining that the defendant’s “criminal history, in
Category I, is similar to the vast majority of those convicted” of
the same offense, and therefore, the defendant “is no outlier; he
is, on the contrary, plainly in the ‘heartland’ of offenders.”).
Where a consideration speaks well of a defendant but in a
manner typical of many similarly situated defendants, a district
court’s over-reliance on it, i.e., by varying significantly
downward both quantitatively and qualitatively from the typical
sentence imposed on such defendants, signifies an abuse of
discretion.20

      Similarly, in some cases it is appropriate for the
sentencing court to consider the defendant’s record of
employment as a mitigating factor under § 3553(a)(1).
However, with respect to Tomko, the significance of his


20
  By referring to this stated justification for the variance as
“typical” of other tax evaders, we are not suggesting that a
closer review of the sentence is warranted or that this
observation in any way alters our deferential standard of review.
Rather, our purpose in describing this consideration as “typical”
is to highlight that it fails to broaden the District Court’s range
of permissible sentencing choices because it would apply with
equal force to most other defendants and therefore cannot
accurately be characterized as a “mitigating” circumstance.

                                60
employment record is arguably equivocal at best. Indeed, the
District Court 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,” and that Tomko’s absence from the company could
place Tomko, Inc. in financial trouble. But, as the Government
points out, the District Court also found that Tomko “had
threatened the contractors with nonpayment and lost business
opportunities unless they submitted falsified invoices as
defendant instructed.” Thus, this conflicting evidence creates
considerable tension.

       Nonetheless, even if we assume that the positive aspects
of Tomko’s employment record outweigh the negative aspects,
consideration of this circumstance fails to distinguish Tomko
from other tax evaders – as was true of his negligible criminal
history – and therefore falls far short of widening the range of
decisions permitted by § 3553(a) to include the sentence the
District Court imposed. An admirable record of employment is
a characteristic common to many white-collar criminals, and the
prospect of business failure seems of little relevance as a
mitigating circumstance when the business itself was the vehicle
through which the defendant perpetrated the crime. See United
States v. Sharapan, 

, 785 (3d Cir. 1994) (de-
emphasizing the fact that the imprisonment of the principal of a
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

                              61
a small business is jailed for comparable offenses . . . .”); United
States v. Reilly, 

, 1424 (3d Cir. 1994) (de-
emphasizing “the fact that [the defendant’s] conviction may
harm not only his business interests but also those of his family
members”). Although a variance rather than a departure is at
issue in the present case, the pre-Booker cases from our Court
still provide valuable insight into what constitute meaningful
mitigating factors. See United States v. Gunter, 

,
247 (3d Cir. 2006) (“[O]ur Circuit’s pre-Booker case law
. . . continues to have advisory force.” (alterations and internal
quotation marks omitted)). Accordingly, Tomko is no different
than most tax evaders with respect to this “mitigating”
circumstance, and therefore it does not stand up as a justification
for varying from a year or more of imprisonment, as called for
under the Guidelines, to no imprisonment at all.

        Finally, the District Court relied heavily on Tomko’s
community ties and purportedly extensive charitable work. It
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. Similarly, the Majority discusses at length the
evidence pertaining to Tomko’s philanthropic acts. See
Majority Op. at Part IV. However, the Guidelines provide that
a defendant’s prior good works – such as civic, charitable, or
public service – are “not ordinarily relevant,” and discourage
downward departures from the normal sentencing range based
on these types of considerations. See U.S. Sentencing

                                62
Guidelines Manual § 5H1.11; 

(“If the
special factor is a discouraged factor . . . the court should depart
only if the factor is present to an exceptional degree . . . .”).
Although in the post-Booker world, the District Court may
consider such good works in the context of § 3553(a)(1), we
think it is important to keep in mind that Congress, through the
Commission, did not intend for this information to ordinarily be
taken into account by sentencing courts. Thus, we find it
troubling that the District Court, as well as the Majority, placed
so much credence in this one, previously prohibited
consideration as justifying the significant variance at issue here.

        The Government views the letters written in support of
Tomko 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 do not justify the degree of variance that was
granted in this case, especially because his negligible criminal
history and employment record keep him squarely in the
category of typical tax evaders.21 Even assuming arguendo the


21
  We pause to note that we believe the Majority’s focus on the
fact-bound nature of sentencing as a reason not to disturb the
District Court’s chosen sentence in this case is overstated.

                                63
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 consideration – which
arguably differentiates Tomko more than the other “mitigating”
circumstances on which the District Court relied – at most
justifies some downward variance, but not to the degree the
District Court chose here. See 

n.16
(concluding, in the course of finding the sentence substantively
unreasonable, that the district court “put undue emphasis on [the
defendant’s] service to the community”).

       Viewed cumulatively, out of the three reasons offered by
the District Court for mitigating Tomko’s sentence, only one –
community support based on charitable work – even begins to
justify a downward variance in this case. Thus, these
considerations fall short of placing the sentence imposed within
the albeit broad range of permissible choices, even when we add
them together. Moreover, the “mitigating” circumstances relied
upon by the District Court only address one of the § 3553(a)



While we do not question that “district courts have an
institutional advantage over appellate courts” in making
sentencing determinations, 

, and that this
superior vantage point with respect to individualized sentencing
drives our deferential standard of review, we do not believe that
this case presents such a fact-intensive sentencing decision that
on appeal we must refrain from drawing our own conclusions
about the evidence of record.

                               64
factors, namely “the history and characteristics of the defendant”
under § 3553(a)(1), and therefore do not reflect the “totality of
the circumstances” and the “§ 3553(a) factors, on a whole.”
Gall, 128 S. Ct. At 597. As a number of our sister courts of
appeals have recognized, excessive reliance on a single
§ 3553(a) factor is indicative of an unreasonable sentence.
United States v. Hampton, 

, 288-89 (4th Cir. 2006);
United States v. Givens, 

, 646 (8th Cir. 2006); see
also 

(considering whether a particular
“factor relied on by a sentencing court can bear the weight
assigned to it”). As the remainder of our analysis reveals, the
District Court’s over-reliance on § 3553(a)(1) as justification for
the significant qualitative and quantitative variance it granted
pales in comparison to the numerous § 3553(a) factors which
suggest that a term of imprisonment is warranted in a case of tax
evasion as willful and brazen as Tomko’s.22

22
  By concluding that the District Court’s stated reasons for
granting a significant variance fail to justify its decision, we are
not advancing some permutation of the “proportionality test.”
What the Supreme Court invalidated in Gall was a rule of
appellate review which requires the use of a rigid mathematical
formula whereby an extraordinary deviation from the Guidelines
must be matched with an extraordinary 

. Here, we have done only what the Supreme Court
outlined in Gall by taking “the degree of variance into account
and consider[ing] the extent of deviation from the Guidelines”
as we review the “totality of the circumstances” and the
“§ 3553(a) factors, on a whole.” 

597.

                                65
                               2.

        Viewed cumulatively, we conclude that the relevant
§ 3553(a) factors advocate in the strongest possible terms for a
sentence including a term of imprisonment. Beginning with
§ 3553(a)(1), district courts are instructed to consider not only
a defendant’s “history and characteristics,” but also “the nature
and circumstances of the offense,” which the District Court did
not emphasize. In this respect, Tomko did much more than fail
to report income on a form; he conceived of a sophisticated plan
to evade taxation and compelled multiple individuals to aid him
in the scheme. This scheme spanned several years, involved the
planning, coordination, and coercion of numerous
subcontractors, required a complicated system of concealment
through fraudulent billing, and resulted in a stipulated tax loss
of over $225,000. Thus, while the District Court’s stated
justifications for mitigating Tomko’s sentence fail to
differentiate him from other tax evaders, the severity of his
offense and the extent of his culpability, as evidenced by the
willful and brazen nature of his conduct, remove Tomko’s tax
evasion from the garden variety type. As such, even assuming
“the history and characteristics of the defendant” point in the
direction of a lenient sentence, “the nature and circumstances of
the offense” certainly do not.

       Under § 3553(a)(2), sentencing courts are instructed to
consider the need for the sentence imposed to: (A) reflect the
seriousness of the offense, promote respect for the law, and

                               66
provide just punishment for the offense; (B) afford adequate
deterrence; (C) protect the public from further crimes of the
defendant; and (D) facilitate rehabilitation. The District Court
did consider the need to afford adequate deterrence to Tomko’s
own criminal conduct, i.e., “specific deterrence,” and imposed
a substantial fine to effectuate this sentencing goal. However,
relying on a hefty fine in lieu of imprisonment as a means to
deter Tomko from future criminal activity only reinforces the
perception that wealthy defendants can buy their way out of a
prison sentence.23 Moreover, we fail to see how the sentence
reflects the equally important need to deter others, i.e., “general
deterrence.” 

(“Because economic and
fraud-based crimes are more rational, cool, and calculated than
sudden crimes of passion or opportunity, these crimes are prime
candidates for general deterrence.” (internal alterations,
quotation marks, and citation omitted)); 

(noting the importance of “the deterrence of white-collar



23
  The Majority characterizes the absence of a term of
imprisonment and the presence of a significant fine as a “simple
coincidence.” Majority Op. at Part IV. We believe the record
indicates otherwise. Specifically, immediately after the District
Court announced its decision to sentence Tomko to probation
instead of imprisonment, the District Court followed up by
stating that a large fine was necessary to provide deterrence to
Tomko. Thus, we cannot agree that the District Court’s decision
to impose a substantial fine had nothing to do with its decision
not to impose any period of incarceration.

                                67
crime (of central concern to Congress)”). Thus, we are
concerned about the message a sentence of probation for this
indisputably serious offense of willful tax evasion sends to the
public at large and would-be violators.

         The Government argues that in this case “real deterrence
is jail,” and this position finds support in United States v. Ture,

(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. 

This failure to report funds as income led to a tax
deficiency of $240,252 in Ture’s case, 

whereas in
Tomko’s case the stipulated tax deficiency was $228,557.
Additionally, 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 Court of Appeals
for 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.” 

It reasoned
that, in the case of a willful tax evader like Ture, “[t]he goal of
deterrence rings hollow if a prison sentence is not imposed . . . .”

the reasoning of Ture persuasive. The sentence
in this case, like the sentence in Ture, represents “in effect, a

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100% downward variance from the Guidelines range,” 

which means that Tomko avoids serving any time in a
federal prison. Moreover, Tomko’s sentence of probation
included 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. Accordingly, we find that
the sentence imposed by the District Court fails to reflect the
seriousness of the offense, promote respect for the law, provide
just punishment for the offense, and afford adequate deterrence
to criminal conduct, and therefore is inconsistent with the
sentencing goals outlined in § 3553(a)(2)(A)-(B).

       Under § 3553(a)(5), districts courts are instructed to
consider “any pertinent policy statement . . . issued by the
Sentencing Commission . . . in effect on the date the defendant
is sentenced.”     Notably, the relevant Guidelines policy
statements in this case reiterate and reinforce the sentencing
mandate of § 3553(a)(2)(A)-(B). For example, the following
policy statement further emphasizes the seriousness of the
offense of tax evasion, observing:



                               69
      “Under pre-guidelines sentencing practice, courts
      sentenced to probation an inappropriately high
      percentage of offenders guilty of certain
      economic crimes, such as theft, tax evasion,
      antitrust offenses . . . that in the Commission’s
      view are ‘serious.’

      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. Sentencing Guidelines Manual ch. 1, pt. A, introductory
cmt. 4(d).   In addition, the following policy statement
underscores the need for tax prosecutions to provide just
punishment, promote respect for the law, and provide
deterrence:

      “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

                              70
       to would-be violators.”

U.S. Sentencing Guidelines Manual ch. 2, pt. T, introductory
cmt. These policy statements clearly indicate the Sentencing
Commission’s reasoned judgment that the offense of tax evasion
should be met with a term of imprisonment in order to further
the goals of sentencing. Thus, § 3553(a)(5) is yet another factor
which points in the opposite direction of the sentence that the
District Court chose to impose here.

       Section 3553(a)(6) further directs sentencing courts to
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.”

U.S. Sentencing Guidelines Manual § 2T1.1 cmt. background;
see also 

(“[A]dvisory

                                 71
Guidelines combined with appellate review for reasonableness
and ongoing revision of the Guidelines in response to sentencing
practices will help to avoid excessive sentencing disparities.”
(internal quotation marks omitted)); 

(“Congress enacted the sentencing statutes in major part to
achieve greater uniformity in sentencing . . . .”); 

(emphasizing that reasonableness review will play a central role
in advancing Congress’s original aim in enacting the Sentencing
Reform Act because it will “tend to iron out sentencing
differences”); 

(finding an unreasonably
lenient sentence when the district court deviated drastically from
the norm with respect to a defendant in the “heartland” of
offenders rather than an outlier).

       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 that
Congress and the Commission sought to avoid. The District
Court’s use of a substantial fine to counterbalance its decision
not to impose a term of imprisonment 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 status. See, e.g.,

(noting the importance of “limits on
the ability of those with money or earning potential to buy their
way out of jail”); United States v. Seacott, 

, 1389
(7th Cir. 1994) (“Allowing sentencing courts to depart
downward based on a defendant’s ability to make restitution

                               72
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.”); United States v. Harpst, 

, 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.”). Because the mitigating factors that
the District Court relied upon to justify granting a significant
variance fail to distinguish Tomko from other “defendants with
similar records . . . found guilty of similar conduct,” the District
Court’s sentencing decision flies in the face of § 3553(a)(6) by
further contributing to unwarranted disparities. If anything, the
distinctions between Tomko and other defendants actually
militate toward imposing more severe punishment on Tomko
than on someone who committed garden variety tax evasion.
Thus, we cannot conclude that the far more lenient sentence
imposed in this case is consistent with § 3553(a)(6).

       In sum, our review leads us to conclude that the
§ 3553(a) factors overwhelmingly support a sentence of
imprisonment. The District Court’s reliance on Tomko’s
negligible criminal history, employment record, and community
support and charitable activity – which relate to only the second
half of § 3553(a)(1), “the history and characteristics of the

                                73
defendant” – as justification for Tomko’s sentence results in an
abuse of discretion because it fails to overcome the dramatically
contrary conclusion dictated by virtually every other relevant
§ 3553(a) factor.24 A sentence of probation, community service,
and a fine is substantively unreasonable in light of “the totality
of the circumstances” and “the § 3553(a) factors, on a whole.”

. By granting a variance all the way down
to probation, the District Court exceeded the lower outer limit
of the range of appropriate choices it had the discretion to make,
and in doing so abused that discretion.

        We reiterate that we do not maintain that any below-
Guidelines sentence would have been improper in this case, only
that the District Court exceeded its discretion in rendering this
particular below-Guidelines sentence. See Abu 

(“While we take exception to the sentence’s degree of
deviation for the reasons we discuss, we do not seek to deprive
the district court of discretion upon remand. Rather, our
difference with the sentencing court here is based on the fact
that the specific justifications offered were not ‘sufficiently


24
  To be clear, we acknowledge that § 3553(a)(3) and (7)
arguably support certain aspects of the District Court’s lenient
sentence, but we find it unnecessary to elaborate on these factors
because we conclude that they are overpowered by § 3553(a)(1),
(2), (4), (5), and (6), which advocate in the strongest possible
terms for a sentence that includes some duration of
imprisonment.

                               74
compelling to support the degree of the variance.’” (quoting

)).25 Indeed, any number of facts could
have been present in the record to place the District Court’s
sentence within the range of reasonable choices. But none of
those facts existed here. At the same time, we need not
articulate in speculative fashion the precise facts that would
render a non-imprisonment sentence reasonable. Suffice it to
say, this dissent would not close the door on the ability of facts
not in Tomko’s record to support significant downward
variances in future cases. We would leave ample room for the
District Court’s discretion, 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. Ins. Co. of N. Am., 

, 884 (3d Cir. 1981)


25
  Again, we do not suggest that our appellate review extends to
ensure that a district court’s reasons are sufficiently compelling,
as the Supreme Court appeared to be describing only a district
court’s own duty to “ensure that the justification is sufficiently
compelling to support the degree of the variance.” Gall, 128 S.
Ct. at 597. We nonetheless note this nuanced distinction
because we believe our appellate approach post-Gall, as outlined
in this opinion, is rather modest when compared to what some
of our sister circuits have held. The Fourth Circuit knew well
that Gall had invalidated the “proportionality principle,” so it
must have believed its test to conform with Gall. In this case,
even when we do not test the District Court’s degree of variance
against “compelling” justifications, we still find an abuse of
discretion.

                                75
(quoting R. Dworkin, Taking Rights Seriously 31 (1977)).

                                 3.

       Finally, we provide some commentary to highlight the
differences between Gall and this case. Brian Gall was
convicted of conspiracy to distribute ecstasy while a second-year
college student at the University of Iowa. Notably, within six
months of joining the conspiracy, Gall withdrew therefrom and
stopped selling illegal drugs of any kind at that time. Upon
graduation, Gall obtained employment earning $18 per hour as
a master carpenter. The district court stated that Gall “self-
rehabilitated” and sentenced him to probation for a term of 36
months. The court of appeals vacated the sentence as
unreasonable.

        The Supreme Court, in reversing the court of appeals,
stated that “[t]he Government’s legitimate concern that a lenient
sentence for a serious offense threatens to promote disrespect
for the law is at least to some extent offset by the fact that seven
of the eight defendants in this case have been sentenced to
significant prison 

. No such offset is
present here, as Tomko was the head or lead offender and
beneficiary of his offense. Deterrence and respect for the law
are greatly reduced here by the District Court’s probationary
sentence in a way entirely absent from Gall. Gall was different
from the other offenders in his conspiracy specifically and from
other drug offenders generally. Specifically, Gall withdrew

                                76
from the ecstasy distribution conspiracy; generally, he
rehabilitated himself in a way that made him an outlier. By
contrast, Tomko’s employment history not only failed to
differentiate him, but it also served as the very vehicle he
utilized to manipulate his taxes and commit his offense.

       This contrast also explains how Gall’s disparity from
other drug distribution conspirators appropriately resulted in a
disparity in his sentence in that case, whereas the absence of
disparity between Tomko and typical tax evaders should not
have resulted in a sentencing disparity of the magnitude we face
here. The Supreme Court emphasized “the critical relevance of
Gall’s voluntary withdrawal, a circumstance that distinguished
his conduct not only from that of all his codefendants, but from
the vast majority of defendants convicted of conspiracy in
federal court.” 

No such distinguishing circumstance
is present here to separate Tomko from the vast majority of
defendants convicted of tax evasion. Also, “[g]iven the
dramatic contrast between Gall’s behavior before he joined the
conspiracy and his conduct after withdrawing, it was not
unreasonable for the District Judge to view Gall’s immaturity at
the time of the offense as a mitigating factor, and his later
behavior as a sign that he had matured and would not engage in
such impetuous and ill-considered conduct in the future.” 

Without imposing any categorical rules about age, we
believe it is clear from the record in our case that Tomko’s turn
to charitable work can hardly be characterized as a turn toward
maturity and away from impetuousness. Thus, the mitigating

                               77
factors which supported Gall’s sentence and made it reasonable
under the totality of the circumstances are absent in Tomko’s
case.

                              IV.

       In addition to rendering the Guidelines advisory, the
Supreme Court’s decision in Booker undoubtedly gave courts of
appeals a new role of ascertaining whether sentences are
reasonable. Contrary to the suggestion of the Majority, when we
are faced with a substantively unreasonable sentence, our hands
are not tied and we need not resign ourselves to a sentencing
regime which tolerates unwarranted disparities. See Majority
Op. at Part IV. The Supreme Court in Booker did not sanction
a return to the unfettered sentencing discretion districts courts
enjoyed during the pre-Sentencing Reform Act era. Rather, in
Booker, the Court recognized Congress’s goal of achieving
“greater uniformity in sentencing” and was confident that courts
of appeals would be able to “iron out sentencing differences”
through reasonableness 

, 263. Because
neither Congress nor the Supreme Court has abandoned the goal
of uniformity in sentencing, neither should we. Rather than
invite Congress to impose a system of mandatory sentences, we
endeavor to fulfill our limited but important role of reviewing
sentences for reasonableness.

      Although in Gall the Supreme Court reiterated that we
apply an abuse-of-discretion standard to reviewing the

                               78
reasonableness of a sentence, in this same decision the Court
clarified that appellate courts must consider both procedural and
substantive reasonableness.         Accordingly, if substantive
reasonableness review is to mean anything, courts of appeals
must attempt to give content to this component of our review
until the Supreme Court provides further guidance. Having
reviewed, with due deference, the District Court’s stated
justifications for granting a significant variance from the
Guidelines range, we cannot conclude that the sentence imposed
in this case was substantively reasonable in light of the “totality
of the circumstances” and the “§ 3553(a) factors, on a whole.”

. Gall’s instruction to review sentences
for substantive reasonableness gives us the authority to vacate
such sentences. Congress, the Sentencing Commission, and the
public rely on us to exercise that authority. Therefore, we would
vacate the judgment of the District Court and remand for
resentencing in accordance with this opinion.




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