While it is widely noted that the U.S. Sentencing Guidelines were
promulgated in an effort to increase uniformity of sentences, less
commonly recognized is the specific effort of the Guidelines to remedy
the perception of undue disparity in sentencing between white collar
offenses and other crimes. The introduction to the Guidelines states
that one of the Sentencing Commission’s goals was to eliminate the
pre-Guidelines inequity of “punishing economic crime less severely than
other apparent equivalent behavior.”1 The Commission was even more
explicit in its effort to increase jail time in the context of tax
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
12 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.2
The creation of sentencing guidelines immediately increased sentences
for many white collar offenses, and in the 21 years following, the trend
of increasing sentences continued.3 Just as legislators
consistently react to public fears of violent crime by increasing
penalties for drug crimes, so too have they reacted to corporate
scandals by increasing penalties for economic crimes.4 Let
there be no mistake, the Guidelines have worked to the detriment of
criminal defendants generally. However, defendants in white collar or
economic crime cases have fared particularly poorly under the
The U.S. Supreme Court’s decision in United States v. Booker — rendering
the Guidelines advisory and requiring appellate deference to the
sentencing determinations of district judges — appeared to hold the
greatest promise for white collar defendants. As it was the Guidelines
that tended to increase sentences for white collar defendants, the
decision rendering the Guidelines merely advisory suggested a shift
toward the sentencing structure that prevailed before the Guidelines.
That promise thus far has proven largely illusory. The courts of appeals
were quickly split on the appropriate standard of review for sentences
on appeal. In particular, courts differed on whether a sentence within
the Guidelines enjoyed, on review, a presumption of reasonableness.6
In Rita v. United States, the Supreme Court held that an appellate
court may apply a presumption of reasonableness to a sentence within the
appropriate guideline range.7 The Rita Court did not address
specifically the standard of review an appellate court should apply in
reviewing a non-Guidelines sentence.
Since Rita, a number of white collar sentences below the Guidelines have
been reversed as unreasonable on appeal and deference to the district
court generally has not been as strong as the Booker and Rita decisions
suggested it might be. The review in these cases often more closely
resembled de novo than abuse of discretion. And the reasoning applied in
these cases indicates that white collar defendants face unique hurdles
in obtaining leniency at sentencing.
The Supreme Court’s recent decisions in Gall v. United States and
Kimbrough v. United States8 may help white collar defendants clear these
hurdles. In Gall, the Supreme Court answered the question left open in
Rita and instructed appellate courts to apply deferential
abuse-of-discretion review to non-Guidelines sentences.9 And,
in Kimbrough, the Court reminded district courts of the limited role of
the Guidelines at sentencing: the “Guidelines, formerly mandatory, now
serve as one factor among several courts must consider in determining an
appropriate sentence.”10 The effect of these decisions and whether they
will materially improve sentences for white collar defendants remains
to be seen. This article discusses a few of the lessons to be gleaned
from these cases.
I. Significant Post-Rita Reversals of Variances And the Potential Impact of Gall
A. United States v. Tomko
William Tomko, Jr. was owner and president of W.G. Tomko & Sons, a
construction company. In the late 1990s, Tomko built himself a new home.
The subcontractors were instructed to bill expenses to the construction
company, as opposed to Tomko. W.G. Tomko & Sons then took
deductions on the costs of the new home as business expenses, resulting
in a tax deficiency of over $200,000.11 In 2004, Tomko pled to a single count information charging tax evasion.
Tomko had a negligible criminal history, and thus was Criminal History
Category I under the Guidelines. The parties agreed that the proper
offense level under the Guidelines was 13, establishing a Guideline
range of 12 to 18 months incarceration. This range is in the Zone D
range and accordingly, § 5C1.1(f) called for incarceration. The district
court sentenced Tomko to probation with a period of home detention. The
Third Circuit reversed, holding that the sentence imposed was
inconsistent with the goals of 18 U.S.C. § 3553(a). This reversal is
noteworthy because it is not predicated on a procedural error by the
district court. The district court appears to have carefully addressed
each factor set forth in § 3553(a). Rather, the appellate court found
substantive error. The appellate court disagreed with the district
court’s analysis of the factors and weighing of the evidence.
The district court varied from the Guidelines on four bases: negligible
criminal history, strong record of employment, ties to the community,
and extensive charity work. The Third Circuit found the first two of
these unpersuasive, noting that far from being significant
distinguishing factors, a limited criminal history and strong record of
employment would be expected in most white collar cases. The appeals
court did not dispute Tomko’s strong ties to the community — a finding
supported by over 50 letters of support “paint[ing] a picture of Tomko
as a man with great concern for his employees and his community.”12
However, the appeals court did find that this factor was outweighed by §
3553(a) factors calling for a prison sentence. Finally, the appeals
court appears to have come to a similar conclusion with regard to
Tomko’s community service. It is worth noting, however, that the opinion
itself makes clear that the court’s skepticism about Tomko’s motivation
for performing charity work between his plea and sentencing was also a
significant factor in its decision.
In sum, the Tomko case appears to reflect little more than a substantive
disagreement about the purpose of sentencing between the district court
and the appellate court. Simply put, the district court sentenced the
defendant; the appellate court sentenced the crime. The court of appeals
described the district court sentence as, “in effect, a 100% downward
variance from the Guidelines range.”13 While the district court
expressly considered each of the § 3553(a) factors, its consideration
was tempered by specific facts about Tomko.14 On the other
hand, the appellate court found the “sentence of probation does not
reflect the seriousness of the offense, promote respect for the law, and
provide just punishment for the offense.” The case was remanded for
B. United States v. D’Amico
In United States v. D’Amico,16 a former city controller was convicted of
extortion and false statements in violation of 18 U.S.C. §§ 1951 and
1001, respectively. His applicable Guideline range was 31 to 44 months,
but the court sentenced D’Amico to four months’ imprisonment. The
variance was granted based on, among other things, the collateral
consequences of the defendant’s conviction, which would likely preclude
his ability to seek public office and engage in other professional work,
and the defendant’s prior good works as a legislator.17
On appeal, the First Circuit vacated the sentence. The court noted that
the variance resulted in an 88 percent reduction in the defendant’s
sentence. Although the court did not disagree with the district court’s
finding that the defendant had performed prior good works as a public
servant, the court believed that the sentencing court “overvalued” these
contributions.18 According to the court, it was the
defendant’s “job to respond to the needs of his constituents and to make
positive contributions to his community. He was compensated for these
efforts, which were essential to D’Amico’s re-election and prospects for
other political office.”19 More generally, the court held that “it is
usually not appropriate to excuse a defendant almost entirely from
incarceration because he performed acts that, though in society’s
interest, also were the defendant’s responsibility to perform and stood
to benefit the defendant personally and professionally.”20
Furthermore, regarding the collateral consequences attendant to
D’Amico’s conviction, the court held such matters were not an
appropriate basis for a substantial variance. “White collar defendants,
such as D’Amico, often have achieved more tangible successes than other
defendants, thereby making it easier for white collar defendants to
articulate specific losses stemming from the fact of conviction. . .
.”21 Granting a substantial variance based on the collateral
consequences of a conviction will “inevitably lead to sentencing courts
treating white collar defendants more leniently (in the relative sense)
simply because of their societal status — a result that would be
contrary to one of the primary objectives of Congress in enacting the
current federal sentencing scheme.”22
C. United States v. Carlson
In United States v. Carlson,23 the defendant was convicted of willfully
failing to account for and pay trust fund taxes in violation of 26
U.S.C. § 7202. For his crime, he faced a Guideline range of 18 to 24
months. The district court sentenced him to eight months’ home
confinement, probation and community service. The sentencing judge
granted the variance because the defendant: (a) had a significant record
of charitable activities; (b) accepted responsibility and made
exceptional efforts to repay the taxes he owed; (c) suffered damage to
his business, reputation, and family relationships; and (d) was not
motivated by a desire to defraud the government, but was instead
attempting to resolve a financial crisis within his business.24
The Eighth Circuit vacated the sentence. The court noted that the
variance amounted to a 100 percent reduction from the Guideline range
and a seven-level reduction in offense level.25 According to
the court, “[w]e have suggested that a variance to zero prison time
where the Sentencing Commission has found that substantial prison time
is indicated requires extraordinary justification and have routinely
rejected this kind of variance as unreasonable.”26 The court held that
the no-prison sentence did not promote respect for the federal tax laws
or provide sufficient general deterrence.
Concerning the specific bases for the downward variance, the court held
that Carlson’s charitable activities did not justify the extraordinary
variance. Nor did the court find extraordinary the defendant’s effort to
pay his tax obligations, which included raiding his retirement account
and borrowing heavily from friends.27 The court noted that
the defendant had already received a three-level adjustment for
acceptance of responsibility. Indeed, the court noted that “placing too
much weight on a defendant’s ability to make restitution immediately
works to differentiate criminal defendants on the basis of their
economic resources, which is clearly contrary to the intent of the
sentencing guidelines.”28 The court also found that the collateral
consequences of the conviction to defendant’s business, family, and
reputation “do not appear to be anything out of the ordinary for
individuals convicted of such crimes.”29
D. Themes From Tomko, D’Amico and Carlson
The Tomko, D’Amico and Carlson decisions share at least two basic
features. The first is their reliance, post-Rita, on the
“proportionality” doctrine. Variances are scrutinized not only in terms
of the overall reduction in offense level, but also in terms of the
percentage reduction they represent from the recommended incarceration
range. Thus, a variance from imprisonment to probation is scrutinized
heavily even when no more than a few offense levels are at stake.30
Second, the heavy scrutiny of variances by those courts reflects a
conscious desire to avoid a revival of the pre-Guidelines perception
that economic crimes are punished less severely than other crimes. Or to
put it more bluntly, the courts wished to avoid the perception that
“wealthy defendants can buy their way out of a prison sentence.”31 They
were thus unwilling to uphold variances based on factors they perceived
as common to all white collar defendants or based on the socio-economic
status of the defendant. Accordingly, the timely payment of restitution
may not ordinarily constitute a ground for a variance since it would
unfairly favor the wealthy at sentencing. Similarly, charitable
activities, public service, and the collateral consequences of a
conviction may be regarded as ordinary incidents of most white collar
Though the Gall case now forbids the “proportionality” doctrine, it
remains to be seen whether it will ease the heavy scrutiny being applied
to white collar sentences.
E. Gall v. United States
In Gall, defendant Brian Gall was convicted of conspiring to distribute
narcotics in an enterprise from which he had withdrawn approximately
five years earlier.32 His Sentencing Guideline range was 30
to 37 months. The district judge sentenced Gall to 36 months probation,
finding that his sentence reflected the seriousness of the offense and
that imprisonment was unnecessary given the defendant’s voluntary
withdrawal from the conspiracy and his post-offense conduct, which
included earning a college degree and starting his own successful
business, all of which indicated that he was not a danger to society.33
The Eight Circuit reversed, holding that a sentence outside the
Guideline range had to be supported by a justification that is
“proportional to the extent of the difference between the advisory range
and the sentence imposed.”34 According to the Eighth Circuit, the
sentence of probation reflected an “extraordinary” 100 percent downward
variance from the applicable Guideline range. The appellate court ruled
that the sentence was justified by neither Gall’s voluntary withdrawal
from the conspiracy nor his youth at the time of the offense. Finding
that the extraordinary variance was not supported by “extraordinary
circumstances,” the court reversed.
The Supreme Court, finding that the Eighth Circuit had failed to give
due deference to the district court’s sentencing decision, reversed and
upheld the original sentence. According to Gall, appellate courts may
not require that “extraordinary” circumstances justify a variance nor
may they employ rigid mathematical formulas that use the percentage of
the variance to determine whether the sentencing court’s justifications
are sufficiently compelling.35 Prior to granting variances,
district judges must consider the extent of the variance and ensure that
the justification is “sufficiently compelling” to support the degree of
variation.36 On review, although the extent of the
difference between the Guideline range and the sentence imposed is
“relevant,” courts of appeals must review all sentences under a
deferential abuse of discretion standard.37
F. Review After Gall
The decision in Gall, on its face, would seem to undermine the type of
review engaged in by the Tomko, D’Amico and Carlson courts. There is no
doubt that the mathematical approach relied on by the Tomko and Carlson
courts is invalid. However, it remains to be seen how deferential courts
of appeals will actually be when the district court imposes a sentence
with which they disagree. A recent decision from the Eleventh Circuit
gives some cause for caution. In United States v. Pugh, the appellate
court reviewed the probationary sentence imposed on a defendant
convicted of knowing possession of child pornography in violation of 18
U.S.C. § 2252A(a)(5)(B).38 The Guideline range had been 97 to 120 months, and the district court varied substantially to impose a sentence of probation.
The Eleventh Circuit reversed, finding the district court sentence unreasonable.39 The appellate court was careful to describe its own deferential review.40
However, it is difficult to escape the conclusion that the appellate
criticism of the district court’s sentencing analysis amounts to little
more than a substantive disagreement about how to weigh sentencing
factors in a particular case.41 It would probably be a
mistake to make too much of the decision in Pugh. The nature of the
crime is particularly incendiary and the variance was dramatic. However,
the district court had not lightly varied. The district court held
sentencing hearings over two days, heard from numerous witnesses, and
“deliberated extensively over its sentencing decision.”42
Notwithstanding statements to the contrary, the review on appeal does
not look quite like a deferential abuse of discretion standard. Gall may
comfort some defendants and embolden some district courts; however,
defense counsel should not become comfortable. A victory at sentencing
can still turn into a loss on appeal if the appellate court disagrees
II. Counsel Should Continue to Seek Downward Departures
Prior to the Booker decision, absent cooperation, departures pursuant to U.S.S.G. § 5K2.0
represented the primary vehicle for seeking leniency under the
Guidelines. Essentially, courts were authorized to grant departures when
the Guidelines failed adequately to take into account some mitigating
factor present in an individual defendant’s case.
When it made the Guidelines advisory, Booker introduced the concept of a
variance, which represents a second way to seek leniency at sentencing.
The touchstone for a variance is 18 U.S.C. § 3553(a), and one may be
granted where a defendant’s Guideline sentence is higher than necessary
to achieve the sentencing purposes set forth in § 3553(a). In light of
their authority to grant both departures and variances, sentencing
judges are now required to engage in a multi-step, sequential sentencing
process, which typically includes first a calculation of the applicable
Guideline range, then the consideration of any departures, and then
finally a consideration of any variance pursuant to § 3553(a).
In the post-Booker era, it is important that defense counsel not lose
sight of departures, and continue to present their arguments for
mitigation both in terms of a departure as well as a variance.
Departures remain vital because courts are likely to continue to give
the Guidelines inordinate weight in their sentencing considerations — 21
years of sentencing under the Guidelines is bound to affect how judges
approach sentencing. Departures are a product of the Guidelines, and
arguments in their support can draw upon two decades of case law. Thus,
in contrast to variances, departures present less of threat to the
Guidelines and the goal to promote uniformity in sentencing. As
illustrated by the examples that follow, most variances — including
those presented in the Tomko, D’Amico and Carlson cases — have a
departure analog. Given that courts, even after Gall, are likely to
remain Guideline-centric for the foreseeable future, a departure
argument may stand a better chance of being granted and upheld.
A. Departures for Charitable and Good Works
Although the D’Amico court criticized a variance based on charitable and
good works, this is a recognized ground for departure. In the departure
context, the Guidelines generally prohibit departures for charitable
works unless they are extraordinary.43 The act of writing a
check to a favorite charity is not considered extraordinary; courts
typically focus on whether the defendant devoted his personal time to
the charitable activities.
The case of United States v. Cooper44 is instructive. Fred Cooper was
convicted of securities fraud and filing a false tax return. His
sentencing range was 15 to 21 months. The court granted a four-level
departure for his good works and sentenced the defendant to three years
probation. The defendant’s good works involved extensive community and
charitable activities on behalf of underprivileged children, including
organizing two youth football teams, mentoring his players, and aiding
them financially with school tuition. Granting the departure, the court
noted that the defendant’s activities were not “the detached acts of
charity one might ordinarily expect from a wealthy business executive.
They are, in a very real way, hands-on personal sacrifices, which have
had a dramatic and positive impact on the lives of others.”45
B. Departures for Post-Offense Rehabilitation
Often, good works initiated after the offense is detected will best be
presented as a basis for a departure in light of extraordinary
post-offense rehabilitation. Courts have the authority to depart
downward where the defendant has demonstrated extraordinary
rehabilitation.46 Exceptional commitment to one’s community
can evidence extraordinary post-offense rehabilitation and can be the
basis for a substantial departure.47 Of note, Tomko’s
community service is of exactly the sort that often supports a
post-offense rehabilitation departure (although the Third Circuit made
clear its skepticism about his motive in performing community service).
Where a defendant can persuade a court that substantial rehabilitation
has already occurred by the time of sentencing, the case law does
support this departure.
C. Collateral Consequences Of Conviction Are Grounds For Departure
The Tomko, D’Amico and Carlson courts reversed variances that were
granted in part based on the collateral consequences of a conviction to a
white collar defendant. Courts have, however, granted departures where
the collateral consequences of a conviction are extraordinary. These
circumstances include those where a defendant’s incarceration would lead
to the collapse of a business and thus harm to innocent employees, and
where a conviction results in the loss of a defendant’s profession or
extraordinary harm to his reputation and his family.
For example, in United States v. Milikowsky48 the defendant was
convicted of price fixing in violation of the Sherman Act. He faced a
Guidelines sentence of 8 to 14 months. The district court held that a
departure to a sentence of probation was warranted because the
defendant’s incarceration would close his business and result in the
unemployment of hundreds of employees. The Second Circuit affirmed,
holding that the defendant was indispensable to the operation of the
business, and a departure was justified because “imprisonment would
impose extraordinary hardship on employees.”49
Similarly, in United States v. Redemann,50 the defendant was convicted
of conspiracy to commit bank fraud. He faced a Guideline sentencing
range of 18 to 24 months. The court departed by two levels because “some
of the purposes of sentencing are satisfied by circumstance(s) aside
from the prison sentence called for by the Guidelines.”51 There the
court found that the defendant was already subject to a stiff civil
monetary penalty, substantial amounts of adverse publicity, and has
suffered adverse personal, business, and family consequences, including
the death of his wife during the criminal investigation.
D. Exceptional Post-Offense Restitution Is a Ground for Departure
Following the enactment of the PROTECT Act in 2003, departures for
post-offense restitution are forbidden where the defendant fulfills his
restitution obligations “only to the extent required by law including
the Guidelines (i.e., a departure may not be based on unexceptional
efforts to remedy the harm caused by the offense).”52 Exceptional
efforts to make restitution, however, appear to remain a basis for
United States v. Kim53 is instructive.54 The defendant
husband and wife were convicted of conspiracy to defraud the United
States and fraudulently obtain government assistance. They faced a
sentence of 15 to 27 months, and 6 to 12 months, respectively, and owed
the government approximately $268,000 in restitution. In conjunction
with the entry of their guilty pleas, the defendants liquidated their
personal savings and paid $50,000 towards their restitution.
Furthermore, at sentencing, they paid the balance of the restitution
through loans from friends and family. In analyzing whether to grant a
departure, the court considered “the degree of voluntariness, the
efforts to which a defendant went to make restitution, the percentage of
funds restored, the timing of the restitution, and whether the
defendant’s motive demonstrates sincere remorse and acceptance of
responsibility.”55 The district court departed downward and sentenced
both defendants to probation. The court noted that the restitution paid
exceeded the amount of the defendants’ personal profit from the crime,
the defendants liquidated three-fourths of their life savings, obtained
the balance of their restitution through loans from family and friends,
began to timely pay their restitution at the time of their guilty pleas,
and demonstrated sincere remorse.56
III. Obtaining and Preserving Variances: Lessons From Recent Case Law
Apart from Guidelines departures, a downward “variance” under 18 U.S.C. §
3553(a) represents a second way to reduce a defendant’s Guideline
sentence. Under that statute, the Guidelines are but one factor that the
courts are to consult in rendering a sentence that is “sufficient, but
not greater than necessary” to achieve the statutory sentencing goals
set forth in 18 U.S.C. § 3553(a)(2), after considering:
- The nature and circumstances of the offense and the history and characteristics of the defendant, § 3553(a)(1);
- The kinds of sentences available, § 3553(a)(3);
- The guidelines and policy statements issued by the Sentencing
Commission, including the applicable Guideline range, § 3553(a)(4) &
- The need to avoid unwarranted sentencing disparity among defendants
with similar records that have been found guilty of similar conduct, §
- The need to provide restitution to any victim of the offense, § 3553(a)(7).
As Gall affirmed, § 3553(a) is the ultimate sentencing touchstone and
the substantive reasonableness of a sentence will be measured against
its factors. And, as Justice Breyer observed in the remedial portion of
the Booker opinion, “Section 3553(a) ... sets forth numerous factors
that guide sentencing. Those factors in turn will guide appellate courts
... in determining whether a sentence is unreasonable.”57
Gall warned that the failure to consider these factors may be procedural error.58
And, the easiest way for an appellate court to reverse a sentence of
which it substantively disapproves is to find procedural error. It is
therefore critical that defense counsel assist the district court in
creating a record of considering all the relevant factors. In white
collar cases there will remain hurdles: requests for leniency must
overcome the perception that a wealthy defendant is trying to buy his or
her way out of prison or is seeking to exploit some socio-economic
advantage at the expense of the Guidelines. Defense counsel should be
sensitive to these concerns, and keep in mind at least three points in
support of their variance arguments. First, remember that the
presumption of reasonableness is an appellate presumption. Second, do
not forget that the Guidelines range does not include all § 3553(a)
factors. Finally, remember to protect the record.
A. Presumption of Reasonableness — An Appellate Presumption
According to the Rita Court, the presumption of reasonableness is an
“appellate court presumption” that “applies only on appellate review”
and is “not binding.”59 The majority in Rita justified a presumption of
reasonableness in very large part by claiming a within-Guidelines
sentence reflected a coincidence of two independent and reasoned
judgments: (1) the Commission considering the sentence in the abstract,
and (2) the district judge considering the sentence in a particular
case.60 This assertion is admittedly a bit awkward, as it
does not appear to recognize that among the factors the district court
must consider under § 3553(a) is the Guideline range set by the
Commission. However, as a practical matter, it is probably not shocking
to suggest that where a district court finds a Guideline sentence
appropriate, that determination will frequently be upheld on appeal.
The sentencing court, however, does not enjoy the benefit of this
presumption. The majority was clear that the presumption of
reasonableness was an appellate standard that should not bear on a
district court’s decision. Of concern, of course, is the “gravitational
pull” of the Guidelines, a pull that is strengthened with a presumption
of reasonableness. As Justice Souter noted:
What works on appeal determines what works at trial, and if the
Sentencing Commission’s views are as weighty as the Court says they are,
a trial judge will find it far easier to make the appropriate findings
and sentence within the appropriate Guideline, than to go through the
unorthodox factfinding necessary to justify a sentence outside the
Maybe it is not how courts are supposed to work, but of course
consideration of how an appellate court will review a particular
sentence plays into the decision of a district court. And therefore,
Guidelines sentences will often be seen as a sort of appellate “safe
harbor,” protecting the district court from reversal.
But this is not the law, and sentencing judges must exercise their own
reasoned sentencing judgments separate and apart from the Guidelines.
The Gall Court stated clearly that the Guideline range is simply the
“starting point and the initial benchmark” for sentencing and the
district court must consider all of the 3553(a) factors to determine the
If a district court does presume the Guidelines to be reasonable, and
does not engage in an independent sentencing analysis, that is
reversible error. Recently the Seventh Circuit reversed a Guideline
sentence in a drug case, United States v. Ross.63 In Ross,
the district court imposed a Guideline sentence, lamenting that it
appeared higher than necessary in the particular case but suggesting the
court could see no particular reason why the Guidelines should not
apply. The appellate court found the language ambiguous, but suggestive
enough of the idea that the Guidelines were presumptively reasonable to
B. The Guidelines Range Does Not Incorporate All § 3553(a) Factors
The Kimbrough decision recognized that the substantive reasonableness of a Guidelines sentence remains open to challenge.65
Although the court believed that the Sentencing Commission promulgated
Guidelines that embody the § 3553(a) factors, this is open to debate
where a specific Guideline calculation is concerned. Accordingly, in
seeking a variance, defense counsel should investigate and argue to the
court those aspects of the Guidelines that fail to incorporate the
defendant’s individual mitigation.
Instructive in this regard is United States v. Wachowiak.66
The defendant was sentenced to 70 months in prison for downloading and
sharing child pornography. His advisory Guideline range was 121 to 151
months. In granting a variance, the sentencing court took into account,
among other things, several areas where the applicable Guidelines did
not adequately incorporate the defendant’s individual mitigation. First,
the court noted that the Guidelines failed to “fully account for [the
defendant’s] ‘sincere expression of remorse’ and ‘otherwise outstanding
character’ by narrowly channeling these considerations” into an
“acceptance of responsibility” reduction under U.S.S.G. § 3E1.1. Second,
the court noted that the Guidelines failed to take into account the
significant collateral consequences of a conviction, including the
defendant’s inability to pursue a chosen career. And third, the court
noted that the Guidelines “failed to consider the positive role of
Wachowiak’s family members, who promised to aid in his rehabilitation
and reintegration into the community and support his efforts to avoid
re-offending.”67 Because the Guidelines failed to take into account
these mitigating factors, the Court varied downward.
Apart from the deficiencies noted by the Wachowiak court, the Guidelines — including U.S.S.G. §§ 5H1.1, 5H1.4, 5H1.5, 5H1.6
— expressly marginalize the relevance of other critical mitigation such
as the defendant’s age, health, employment history, and family ties. In
appropriate cases, these factors ought to be brought to the sentencing
judge’s attention as they are not incorporated into the Guidelines but
are otherwise highly relevant to a § 3553(a) analysis.
C. Protect the Record
Although a sentencing court is not required in every case to issue
detailed or oral written findings, where a substantial variance is
concerned, defense counsel should ensure that the record is as complete
as possible. According to the Court in Rita, the sentencing judge should
“set forth enough to satisfy the appellate court that he has considered
the parties’ arguments and has a reasoned basis for exercising his own
legal decision-making authority.”68 The sentences in the Tomko, Carlson
and D’Amico cases were vacated, in part, because the appellate courts in
those cases did not believe for a variety of reasons that an adequate
record was made to support the variance. In Tomko and D’Amico, the
courts believed that the reasons for the variance were not sufficiently
compelling; in Carlson, the court rejected the variance in part because
it believed that the sentencing judge did not adequately appreciate the §
3553(a) goal of general deterrence.
To ensure that a variance is supported by the record, defense attorneys
should consider submitting to the court a proposed statement of findings
to be included in the record at sentencing. The findings should touch
on each of the § 3553(a) factors, and in particular discuss how the
sentence furthers the statutory sentencing goals set forth in §
3553(a)(2). The D’Amico, Tomko and Carlson cases suggest that, in the
white collar context, defense counsel should be particularly attuned to
how the proposed sentence achieves the goals of specific and general
deterrence. The proposed findings, moreover, should individualize the
defendant’s mitigation and distinguish his or her contributions to
society from the average white collar defendant. And finally, the
proposed findings must acknowledge realistically the overall severity of
It has been widely noted that the Supreme Court continues to grant
certiorari in fewer cases, and that as it does so the role of the
federal courts of appeals is significantly enhanced.69
Following Rita, there were a number of reversals of defense-favorable
variances in white collar cases. The Supreme Court’s decision in Gall
may have a positive impact on sentencing outcomes for this class of
defendants. As the post-Rita appellate court decisions illustrate,
however, as a practical matter the courts of appeals may well have the
final word. The cases decided in the wake of Rita suggest a high
threshold is being set for variances, particularly variances that are
perceived as undermining the stated purpose of the Guidelines to impose
prison sentences for economic crimes and decrease sentence disparity for
white collar defendants. In this environment, departures enjoy certain
advantages: they are well-established, they are perhaps less noteworthy
if only for being less novel, and they fit within a system of Guidelines
that has been in place longer than most federal judges have been on the
bench. Of course, the struggle in district court is generally just to
get the reduced sentence; whether it is labeled a variance or departure
is of little moment to the person who is saved prison time by the
decision. As recent appellate decisions reveal, however, it is critical
to protect on appeal the sentence earned below.
- U.S.S.G. ch. 1, pt. A, § 3.
- U.S.S.G. 2T1.1, cmt., background.
- See, e.g., Frank O. Bowman, Are We Really Getting Tough on White
Collar Crime? (June 19, 2002), Hearing Before the Subcomm. on Crime and
Drugs, S. Judiciary Comm. Part 2, 15 Fed. Sent. R. 237, available at
2003 WL 22016895 (hereinafter, “Bowman Statement”) (discussing increases
in the Guideline ranges for economic crimes resulting from 2001
amendments submitted by the Commission and accepted by Congress).
- See, e.g., “Report to the Congress: Increased Penalties Under the
Sarbanes-Oxley Act of 2002,” United States Sentencing Commission, 1369
PLI/Corp 657, 665 (2003) (outlining Commission’s response to the
directive to “expeditiously consider the promulgation of new sentencing
guidelines or amendments to existing sentencing guidelines to provide an
enhancement for officers or directors of publicly traded corporations
who commit fraud and related offenses”).
- Bowman Statement at *3 (“It is undeniable that since 1987 the
Guidelines have sent to prison thousands of white collar criminals who
would previously have been given straight probation.”).
- Compare United States v. Dorcely, 454 F.3d 366, 376 (D.C. Cir. 2006)
(uses presumption); United States v. Green, 436 F.3d 449, 457 (4th Cir.
2006) (same); United States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006)
(same); United States v. Williams, 436 F.3d 706, 708 (6th Cir. 2006)
(same); United States v. Mykytiuk, 415 F.3d 606, 608 (7th Cir. 2005)
(same); United States v. Lincoln, 413 F.3d 716, 717 (8th Cir. 2005)
(same); and United States v. Kristl, 437 F.3d 1050, 1053-1054 (10th Cir.
2006) (per curiam) (same), with United States v. Jimenez-Beltre, 440
F.3d 514, 518 (1st Cir. 2006) (en banc) (does not use presumption),
United States v. Fernandez, 443 F.3d 19, 27 (2nd Cir. 2006) (same);
United States v. Cooper, 437 F.3d 324, 331 (3rd Cir. 2006) (same); and
United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005) (per curiam)
- 127 S. Ct. 2456, 2462 (2007). For more on the nuances of the Rita
decision, see Steven G. Kalar & Jon M. Sands, (Not So) Lovely Rita,
The Champion, August 2007 at 32.
- Gall v. United States, — U.S. —, 128 S. Ct. 586 (2007); Kimbrough v. United States, — U.S. —, 128 S. Ct. 558 (2007).
- Gall, 128 S. Ct. at 592 (“We now hold that, while the extent of the
difference between a particular sentence and the recommended Guidelines
range is surely relevant, courts of appeals must review all sentences —
whether inside, just outside, or significantly outside the Guidelines
range — under a deferential abuse-of-discretion standard.”).
- Kimbrough, 128 S. Ct. at 565.
- United States v. Tomko, 498 F.3d 157, (3rd Cir. 2007).
- Id. at 172.
- Id. at 167 (because the Guidelines called for months of prison and the sentence imposed involved no time in prison).
- See, e.g., id. at 161 (noting that while tax evasion is a serious offense, Tomko presented little risk of recidivism).
- Tomko should generally be distinguished by the relation between the
crime and the place of home detention. William Tomko effectively built
his home as an illegal tax deduction. And the home was quite luxurious.
The government complained bitterly, and the appellate court agreed,
about the “perverse irony of this gilded cage confinement.” Id. at 166.
There is little question that this was a significant factor in the court
of appeals’ reasoning, particularly concentrating, as it was, on
principles of general deterrence.
- United States v. D’Amico, 496 F.3d 95 (1st Cir. 2007).
- Id. at 105-06.
- Id. at 107.
- United States v. Carlson, No. 06-3372, 2007 WL 2350182 (8th Cir. Aug. 20, 2007).
- Id. at *1.
- Id. at *2.
- Id. (internal quotation marks, alteration, and citation omitted).
- Id. at *3.
- Id. at *3 n.4.
- Id. at *4.
- The Supreme Court in Gall attacked this overly “mathematical
approach,” noting “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 percent departure
regardless of whether the Guidelines range is 1 month or 100 years.”
Gall, 128 S. Ct. at 595. Nonetheless, Gall still permits the appellate
court to “take the degree of variance into account and consider the
extent of a deviation from the Guidelines.” Id.
- Tomko, 2007 WL 2350765, at *12.
- Gall, 128 S. Ct. at 592-593.
- Id. at 593.
- Id. at 594.
- Id. at 595.
- Id. at 597.
- Id. at 592.
- United States v. Pugh, — F.3d —, 2008 WL 253040 (11th Cir. 2008).
- Id. at *21.
- Id. at *7-8.
- For example, in holding that the sentence failed to “afford adequate
deterrence to criminal conduct,” or to serve the factors of
“retribution, rehabilitation, and incapacitation,” the appellate court
concluded, “We still cannot say that the resulting sentence fairly
reflects their consideration.” Id. at *12-13. Although the appellate
court goes to some length to explain why it disagrees with the district
court analysis, it remains little more than that — a substantive
- Id. at *10.
- U.S.S.G. § 5H1.11.
- 394 F.3d 172 (3d Cir. 2005).
- Id. at 177; see also United States v. Serafini, 233 F.3d 758, 775
(3d Cir. 2000) (affirming three-level downward departure where
defendant’s charitable acts included not only financial contributions
but “devotion of himself and his time”).
- United States v. Brock, 108 F.3d 31, 35 (4th Cir. 1997) (remanding
for resentencing where district court had denied departure for
post-offense rehabilitation on the basis that it was not permitted to
depart for that reason).
- See, e.g., United States v. DeShon, 183 F.3d 888, 889-90 (8th Cir.
1999) (defendant sentenced to five months community confinement from a
range of 30 to 37 months where defendant exhibited exceptional
rehabilitation through commitment to church, community, and employment).
- 65 F.3d 4 (2d Cir. 1995).
- Id. at *9.
- 295 F. Supp. 2d 887 (E.D. Wis. 2003).
- Id. at 896.
- U.S.S.G. § 5K2.0(d)(5).
- 364 F.3d 1235 (11th Cir. 2004).
- Kim was analyzed under the 1997 Guidelines, before the enactment of
the PROTECT Act. Therefore, the more stringent standard was not applied.
See 364 F.3d at note 9. However, the case remains an example of the
type of restitution efforts required to impress a court.
- Id. at 1244.
- 543 U.S. at 261.
- Gall, 128 S. Ct. at 598-600. The recent Second Circuit decision in
U.S. v. Cutler, — F.3d. —, 2008 WL 706633, (2nd Cir. 2008), contains a
lengthy and instructive discussion of procedural error. In Cutler, the
district court departed substantially from the Guidelines range and
noted that in the alternative it would impose the same sentence pursuant
to Section 3553(a). As part of its rationale for departing on the tax
offense, the district court noted that “[w]ith respect to this type of
an offense, ... the relative length of the sentence does not seem to be
as important in providing deterrence.” Id. at *26. The Second Circuit
held this to be procedural error in that the district court failed to
comply with 18 U.S.C. § 3553(a)(4) — requiring the sentencing court to
consider the pertinent guidelines. Id. at *27. Specifically, the
appellate court: (a) ruled that the district court’s position on
deterrence was at odds with the Guidelines, (b) recognized that a
district court could disagree with the Guidelines “based solely on
policy considerations,” but (c) held that in disagreeing with the
Guidelines the court “is required to state the basis for its
disagreement, along with sufficient justifications for the extent of any
departure.” Id. Failing to do so is reversible procedural error.
- Rita, 127 S. Ct. at 2463, 2465.
- Id. at 2465 (“[T]he courts of appeals’ ‘reasonableness’ presumption,
rather than having independent legal effect, simply recognizes the
real-world circumstance that when the judge’s discretionary decision
accords with the Commission’s view of the appropriate application of §
3553(a) in the mine run of cases, it is probable that the sentence is
- Id. at 2487 (internal citations omitted) (Souter, J., dissenting).
- Gall, 128 S. Ct. at 596.
- United States v. Ross, — F.3d —, 2007 WL 2593509 (7th Cir. 2007).
- Id. at *2-3 (affirming that the presumption — whatever else it may
be — is an appellate presumption, and is not operative at the district
- Kimbrough, 128 S. Ct. at 569 (“as a general matter, courts may vary
from Guidelines ranges based solely on policy considerations, including
disagreements with the Guidelines”).
- United States v. Wachowiak, 496 F.3d 744 (7th Cir. 2007).
- Id. at 747.
- Rita, 127 S. Ct. at 2468.
- See, e.g., Linda Greenhouse, Dwindling Docket Mystifies Supreme
Court, N.Y. Times, December 7, 2006; William Glaberson, Caseload Forcing
Two-Level System for U.S. Appeals, N.Y. Times, March 14, 1999.