Third Circuit upholds reasonableness of below-Guidelines sentence for tax evader
In the recent case of United States v. Tomko, the en banc Third Circuit upheld a probationary, below-Guidelines sentence for a run of the mill tax evader. 562 F.3d 558, 2009 U.S. App. LEXIS 8227 (3rd Cir., Apr. 17, 2009). Tomko, a plumbing contractor, had faced an advisory Guidelines range of 12-18 months, but instead received probation, community service, and a large fine.
The Court of Appeals rejected the government's argument that the sentence was substantively unreasonable because Tomko was an ordinary tax evasion defendant, that is, nothing about the offense or offender was extraordinary. But the Third Circuit found no abuse of discretion; the sentencing court had considered all of the 18 U.S.C. § 3553(a) factors and provided specific reasons for the variance from the Guidelines, including the defendant's "negligible" criminal history (driving a boat while intoxicated); employment record; community ties; and substantial record of charitable works. Id. at *34. (Although Tomko had presented evidence at sentencing that his incarceration would threaten ruination for his contracting business and its 300 employees, neither the district court nor the Court of Appeals addressed that circumstance only by tersely subsuming it under the rubric of "employment record," with no extended discussion of the weight to be assigned to that circumstance).
The Court of Appeals rejected any argument that the variance in this case was so substantial as to be per se unreasonable. The Court cited various cases involving greater departures to reach a probationary sentence. Id. at *40. In any event, it is highly uncommon to strike down a sentence on this quantitative basis. "It will be a rare case when it is clear that no acceptable reasoning can justify a given sentence." Ibid. (citation omitted).
