Friday, August 24, 2007
A divided panel of the Third Circuit reversed a sentence imposed on a defendant who pleaded guilty to tax evasion on the ground that the departure from the Federal Sentencing Guidelines range was unreasonable. In the post-Booker world of reasonableness, the majority in United States v. Tomko (here) took the view that the factors on which the district court relied were insufficient to support a departure from the recommended twelve to eighteen month range. The district court sentenced the defendant to one year of home confinement, 250 hours of community service, and a $250,000 fine. Among the reasons cited by the judge was the fact that the defendant was a first-time offender, the fine imposed was substantial, and the defendant had a history of good works and community involvement. In reversing the sentence, the court stated that "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.' . . . [W]e believe the sentence imposed in this case is unreasonable in light of the facts and circumstances revealed in the record and the § 3553(a) factors." The Third Circuit majority seemed unimpressed by fifty letters sent on the defendant's behalf, many from employees of his company, and his involvement in a Habitat for Humanity project building homes for Hurricane Katrina victims. "Even assuming arguendo the purest of motives for Tomko’s well timed interest in Habitat for Humanity, and viewing as completely altruistic the letters attesting to his beneficence, this single factor fails to justify the downward variance granted in this case."
While the majority's decision is not helpful for white collar defendants facing sentencing, it is interesting to note that in another post-Booker Third Circuit case, U.S. v. Cooper, 394 F.3d 172 (3d Cir. 2005), a different divided panel upheld a significant downward departure based on the defendant's good works that the dissenting judge claimed were initiated in response to the pending criminal investigation. If you read both Cooper and Tomko, it is fair to say that the reasonableness standard adopted in Booker does not always lead to consistent results, and the Third Circuit shows how closely divided a court can be when looking at white collar crime cases that often involve fairly sympathetic defendants. Doug Berman's estimable Sentencing Law & Policy blog discusses the opinion (here), as does Blog Emperor Paul Caron on the Tax Prof Blog (here). (ph)