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From Booker to Gall: The Evolution of the Reasonableness
Doctrine as Applied to White-Collar Criminals and
Sentencing Variances
Casey C. Kannenberg*
I. INTRODUCTION........................................................................................................... 350
II. BACKGROUND ........................................................................................................... 351
A. From There to Here: A Look at the Evolution of the U.S. Sentencing
Guidelines ............................................................................................................ 351
1. The Sentencing Reform Act of 1984 ................................................................ 351
2. Apprendi, Blakely, Booker, and the Reasonableness Doctrine ...................... 354
3. Rita and the Presumption of Reasonableness for Within-Guidelines
Sentences........................................................................................................ 356
4. Gall and the End of the “Extraordinary Circumstances” and
“Percentage” Justifications ........................................................................... 357
B. Federal District Court Application of the Guidelines Today ............................... 357
III. ANALYSIS.................................................................................................................. 358
A. Tomko and Downward Variances: A Qualitative Assessment of
Reasonableness .................................................................................................... 358
1. The Tomko Standard Announced ................................................................... 358
a. Prison/No Prison Distinction: The Great Divide ........................................ 359
b. Extraordinariness........................................................................................ 361
i. Extraordinary Age or Medical Condition ............................................... 361
ii. Extraordinary Charitable Works ............................................................ 363
iii. Extraordinary Family Situation ............................................................ 365
iv. Extraordinary Restitution ...................................................................... 368
v. Extraordinary Rehabilitation .................................................................. 370
2. Putting It All Together: Well-Defined Parameters ......................................... 373
B. White-Collar Criminals and Upward Variances: A Functional Presumption
of Reasonableness? .............................................................................................. 373
* J.D. Candidate, The University of Iowa College of Law, 2009; B.A., Northwestern University, 2006. I would
like to thank my wife, Catie, for her constant love and support, and my son, Steven, for the pure joy he brings to
my life. Both inspire me every day. I would also like to thank both my parents and in-laws for their
encouragement and guidance. All errors and omissions are my own.
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350 The Journal of Corporation Law [Vol. 34:1
1. Hiding Behind the § 3553(a) Factors ............................................................. 374
2. The Eleventh Circuit: Hiding Behind Statutory Maximums............................ 376
3. An Unclear Picture for Upward Variances .................................................... 377
IV. RECOMMENDATION................................................................................................... 377
A. Well-Defined Standards for Upward Variances .................................................. 378
B. Raise the Guidelines Ranges for White-Collar Crimes ........................................ 378
C. Eliminate Hide-Behind Strategies........................................................................ 379
V. CONCLUSION ............................................................................................................. 379
APPENDIX A.................................................................................................................... 380
APPENDIX B .................................................................................................................... 389
APPENDIX C .................................................................................................................... 399
I. INTRODUCTION
The storm of United States v. Booker1 has come and gone, leaving in its wake
discernible patterns etched into the federal sentencing landscape. This tattooed terrain
enjoyed relative tranquility for nearly three years after Booker, with only the minor squall
of Rita v. United States2 altering the scenery. The arrival of Gall v. United States,3
however, signifies a radical change in the federal sentencing scheme. This Note examines
the ―calm‖ after the Booker storm, the resulting patterns in appellate review of district
court sentencing practices, and the forecast for the future of such appellate review after
Gall.
Specifically, this Note examines how the U.S. Supreme Court and the circuit courts
of appeal are shaping the parameters of the reasonableness doctrine as applied to white-
collar criminal sentencing in the post-Booker world.4 Where do federal appellate judges
draw the line when reviewing district court sentences? Are there varying standards
contingent upon whether the district court awards a variance and, if so, what are those
standards for upward and downward variances? Finally, and most significantly, how does
Gall affect the reasonableness doctrine as applied to white-collar criminals and
sentencing variances?
This Note addresses these questions by examining circuit court cases in the three
years since Booker. Part II traces the path of the Sentencing Guidelines (the Guidelines)
from their inception, through the Booker, Rita, and Gall decisions, and ultimately to their
application today in the post-Booker world. Part III examines how the circuit courts apply
1. United States v. Booker, 543 U.S. 220 (2005). See infra notes 47–57 and accompanying text for a
discussion of Booker.
2. Rita v. United States, 127 S. Ct. 2456 (2007).
3. Gall v. United States, 128 S. Ct. 586 (2007).
4. In late 2006, Professors Max Schanzenbach and Michael Yaeger posed the question, ―[W]hat is a
reasonable sentence?‖ Max Schanzenbach & Michael L. Yaeger, Prison Times, Fines, and Federal White-
Collar Criminals: The Anatomy of Racial Disparity, 96 J. CRIM. L. & CRIMINOLOGY 757, 764 (2006). This
Note aims to provide an answer to this question, at least in the narrow context of white-collar criminals and
Sentencing Guidelines variances.
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2008] From Booker to Gall 351
the Booker reasonableness doctrine to white-collar criminal sentences. Specifically, Part
III.A addresses the well-defined parameters for downward variances and how Gall will
affect these parameters, while Part III.B focuses on the ambiguous application of the
reasonableness standard to upward variances. Part IV suggests that the circuit courts
should refine their reasonableness analyses for upward variances to avoid a growing
disparity in sentencing for white-collar criminals. If the circuit courts prove unwilling to
do this, then Part IV recommends that the Sentencing Commission raise the Guidelines
ranges for white-collar crimes.5
II. BACKGROUND
A. From There to Here: A Look at the Evolution of the U.S. Sentencing Guidelines
1. The Sentencing Reform Act of 1984
The Sentencing Reform Act of 19846 (the Act) introduced ―the most broad reaching
reform of federal sentencing in this century.‖ 7 Prior to the Act, a white-collar criminal
could expect to receive a light sentence, typically probation (in lieu of actual prison time),
a fine, or both.8 Indeed, ―[f]or many years, corporate criminal prosecutions were
insignificant in both number and impact.‖9 This inadequacy can be traced to the
beginning of the Republic, when the Founders entrusted federal judges with a wide
degree of discretion in sentencing criminals. 10 Even though prisoner rehabilitation efforts
in the early twentieth century limited judicial sentencing discretion somewhat, ―[f]or over
two hundred years, there was virtually no appellate review of the trial judge‘s exercise of
sentencing discretion.‖11 Judicial sentencing discretion, and the resulting indeterminate
5. A white-collar crime is ―a nonviolent crime usu[ally] involving cheating or dishonesty in commercial
matters.‖ BLACK‘S LAW DICTIONARY 1627 (8th ed. 2004). More specifically, a white-collar crime: (1) is
typically economic in nature, (2) involves deception, and (3) does not include physical force. Ellen S. Podgor,
The Challenge of White Collar Sentencing, 97 J. CRIM. L. & CRIMINOLOGY 731, 736 (2007). The following are
examples of white-collar crimes: securities law violations, antitrust offenses, bribery, bank embezzlement, mail
fraud, tax fraud, credit fraud, and false claims to the government. Book Note, White-Collar Criminals
Unmasked, 105 HARV. L. REV. 2098, 2099 (1992) (reviewing DAVID WEISBURD ET AL., CRIMES OF THE
MIDDLE CLASS: WHITE-COLLAR OFFENDERS IN THE FEDERAL COURTS (1991)).
6. Sentencing Reform Act of 1984, Pub. L. No. 98-473, 98 Stat. 1987 (codified as amended in scattered
sections of 18 and 28 U.S.C.).
7. Ilene H. Nagel, Structuring Sentencing Discretion: The New Federal Sentencing Discretion, 80 J.
CRIM. L. & CRIMINOLOGY 883, 883 (1990).
8. Daniel A. Chatham, Note, Playing With Post-Booker Fire: The Dangers of Increased Judicial
Discretion in Federal White-Collar Sentencing, 32 J. CORP. L. 619, 621 (2007); see also Isaac M. Gradman,
Note, Hot Under the White-Collar: What the Rollercoaster in Sentencing Law from Blakely to Booker Will
Mean to Corporate Offenders, 1 N.Y.U. J.L. & BUS. 731, 735–36 (2005) (discussing the inadequacy of
punishment for white-collar offenders).
9. RICHARD S. GRUNER, CORPORATE CRIME & SENTENCING 427 (Michie Co. ed., 1994). Gruner
elaborates on the inadequacy of white-collar prosecutions: ―In some cases, maximum corporate fines were far
less than the illegal profits or cost savings firms gained through illegal conduct given that such conduct was
only occasionally detected and prosecuted. With such an imbalance of gains and penalties, the implicit
sentencing message was that corporate crime paid.‖ Id. at 428.
10. Kate Stith & Steve Y. Koh, The Politics of Sentencing Reform: The Legislative History of the Federal
Sentencing Guidelines, 28 WAKE FOREST L. REV. 223, 225 (1993).
11. Id. at 226 (discussing the role of parole authorities in assigning release dates for a majority of federal
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352 The Journal of Corporation Law [Vol. 34:1
sentencing practices, created considerable sentencing disparity among similarly situated
defendants.12 It was in this context that Judge Marvin E. Frankel 13 began the sentencing
reform movement.14
Judge Frankel‘s critique15 of federal sentencing practices culminated in a proposal
to create a national sentencing commission that would issue and recommend laws and
rules in sentencing.16 Senator Edward Kennedy, inspired by the work of Judge Frankel,
introduced a comprehensive bill in 1975 to establish sentencing guidelines for defendants
in federal cases.17 While his efforts were not immediately successful, in 1983 a coalition
of senators and the Reagan Administration introduced bills that Congress ultimately
passed as the Sentencing Reform Act of 1984.18
In addition to raising maximum fines for corporate offenders, the most significant
aspect of the Act was that it created the U.S. Sentencing Commission (the
Commission),19 which Congress charged with enacting guidelines and sentencing
policies for the federal courts.20 In addition, the Act charged the Commission with
recommending changes to criminal statutes to reflect the Commission‘s perspective on
―what motivates and controls criminal behavior.‖21 The specific purposes of the
Guidelines promulgated by the Commission were (and still are) to: (1) incorporate the
underlying purposes of sentencing (i.e., deterrence); (2) provide certainty and fairness in
meeting the purposes of sentencing by avoiding unwanted sentencing disparity among
offenders with similar characteristics who are convicted of similar conduct, while
prisoners).
12. Nagel, supra note 7, at 900; see also S. REP. NO. 98-225, at 38 (1983) (addressing the need to resolve
the problem of sentencing disparity created by unfettered judicial discretion); Stith & Koh, supra note 10, at
227 (contrasting the effect of sentencing disparity with ―ideals of equality and the rule of the law‖).
13. Judge Frankel, a former Columbia law professor and federal district court judge in New York, is
known as the ―father of sentencing reform.‖ Stith & Koh, supra note 10, at 228.
14. Id.
15. Judge Frankel‘s primary concern was the authority judges had to issue a ―broad range‖ of sentences,
from probation to the statutory maximum, with little concern that their sentences would be overturned by
appellate courts. Michael M. O‘Hear, The Original Intent of Uniformity in Federal Sentencing, 74 U. CIN. L.
REV. 749, 759 (2006). Judge Frankel abhorred the incredible sentencing disparities that resulted from this broad
authority. Id.
16. Marvin E. Frankel, Lawlessness in Sentencing, 41 U. CIN. L. REV. 1, 50–54 (1972); Nagel, supra note
7, at 900; see also Stith & Koh, supra note 10, at 228–29 (discussing Judge Frankel‘s seminar at Yale Law
School on sentencing and parole reform and the seminar‘s impact on the reform movement).
17. See Nagel, supra note 7, at 900 (discussing Senator Kennedy‘s efforts to introduce sentencing reform);
Stith & Koh, supra note 10, at 230 (discussing how Senator Kennedy took the lead by introducing a sentencing
reform bill). For a look at Senator Kennedy‘s bill, see S. 2699, 94th Cong. (1975).
18. Sentencing Reform Act of 1984, Pub. L. No. 98-473, 98 Stat. 1837 (codified as amended in scattered
sections of 18 and 28 U.S.C.); Nagel, supra note 7, at 900. The original co-sponsors were Senators Thurmond
(R-SC), Kennedy (D-Ma), Biden (D-De), Laxalt (R-Nv), Baucus (D-Mt), DeConcini (D-Az), Hatch (R-Ut),
Leahy (D-Vt), Metzenbaum (D-Oh), Simpson (R-Co), Specter (R-Pa), Abdnor (R-SD), Hawkins (R-Fl), Cohen
(R-Me), D‘Amato (R-NY), Chiles (D-Fl), Glenn (D-Oh), Huddleston (D-Ky), Lugar (R-In), Stevens (R-Ak),
Zorinsky (D-Ne), Moynihan (D-NY), and Sasser (D-Ky). S. 668, 98th Cong. §§ 2–7 (1983).
19. 28 U.S.C. § 991 (2000 & Supp. 2003).
20. U.S. SENTENCING COMM‘N, AN OVERVIEW OF THE UNITED STATES SENTENCING COMMISSION
(2005), available at http://www.ussc.gov/general/USSCoverview_2005.pdf; GRUNER, supra note 9, at 429.
21. U.S. SENTENCING GUIDELINES MANUAL § 1A1.1, introductory cmt. (2004); see also Carl Emigholz,
Utilitarianism, Retributivism and the White Collar-Drug Crime Sentencing Disparity: Toward a Unified Theory
of Enforcement, 58 RUTGERS L. REV. 583, 589 (2006) (discussing the mechanics of the Guidelines).
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2008] From Booker to Gall 353
permitting sufficient judicial flexibility to consider relevant aggravating and mitigating
factors; and (3) reflect, to the extent practicable, advancement in the knowledge of human
behavior as it relates to the criminal justice process. 22
Judicial application of the Guidelines is a two-step process. First, a judge must
calculate the total offense level, and then determine the defendant‘s criminal history
category.23 In calculating the total offense level, a judge must first determine the base
level for the offense under Chapter Two of the Sentencing Guidelines Manual. 24 Next, a
judge may make adjustments, if warranted, based on the factors outlined in Chapters Two
and Three.25 After a judge applies adjustments, she must then perform the second step of
the process: determining the defendant‘s criminal history category. 26 The criminal history
category is calculated by applying a number of points for each prior sentence, taking into
account the length of the prior sentence. For example, a judge should add three points for
each prior sentence exceeding one year and one month. 27 Criminal history categories
range from Category One (zero to one criminal history point) to Category Six (13 or
more criminal history points).28
Once a judge has factored in any adjustments and the defendant‘s criminal history
category, the judge must determine the correct Guidelines range for the total calculated
offense level.29 If a judge feels that the resulting Guidelines range does not ―adequately
reflect the proper punishment for the specific defendant,‖ then she may impose a
downward or upward departure.30 Unless a mandatory minimum or maximum sentence
bars the judge from applying a particular sentence, she usually awards a sentence from
within the calculated Guidelines range. 31
The Guidelines took effect on November 1, 1987.32 However, the Guidelines soon
faced their first major constitutional challenge. 33 Because a large number of district
courts held the Act unconstitutional, 34 the U.S. Supreme Court expedited its review of an
appeal from a case in the Western District Court of Missouri. 35 In this case, Mistretta v.
22. U.S. SENTENCING COMM‘N, supra note 20, at 1.
23. JOEL ANDROPHY, WHITE-COLLAR CRIME § 35:15, at 27 (2006).
24. Id.; U.S. SENTENCING GUIDELINES MANUAL § 1B1.2.
25. U.S. SENTENCING GUIDELINES MANUAL § 1B1.1(b). Some of the Chapter Two factors include ―all
acts and omissions committed, aided, abetted, counseled, commanded, induced, procured, or willfully caused by
the defendant.‖ Id. § 1B1.3(a)(1)(A). Chapter Three allows adjustments based on the victims and the
defendant‘s role in the offense and whether the defendant has accepted responsibility. Id. § 1B1.1(c).
26. Id. § 1B1.1(f).
27. Id. § 4A1.1(a).
28. U.S. SENTENCING GUIDELINES MANUAL § 5A Sentencing Table.
29. Id. § 1B1.1(g); Chatham, supra note 8, at 622.
30. Id. § 1B1.1(h). Chapter Five, Part K provides a judge with the bases for awarding a departure. A
departure is simply a sentencing range for a particular defendant that, literally, departs from the Guidelines
range. Id. § 5K. Typically, a judge will award a downward departure if a defendant provides ―substantial
assistance in the investigation or prosecution of another person who has committed an offense.‖ Id. § 5K1.1.
31. Chatham, supra note 8, at 622–23.
32. Carol A. Pettit, Note, Writing the Book[er] on Blakely: The Challenge to the Federal Sentencing
Guidelines, 41 TULSA L. REV. 365, 376 (2005).
33. See Mistretta v. United States, 488 U.S. 361, 374, 384 (1989) (considering a challenge to the Act as an
excessive delegation of legislative power and a violation of the separation of powers principle).
34. Nagel, supra note 7, at 906; see, e.g., United States v. Allen, 685 F. Supp. 827, 828 (N.D. Ala. 1988)
(holding that the Act is unconstitutional because it violates the separation of powers doctrine).
35. Nagel, supra note 7, at 906.
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United States,36 the Court held that, while the Guidelines were ―an unusual hybrid in
structure and authority,‖ they were nevertheless constitutional in structure and effect. 37
2. Apprendi, Blakely, Booker, and the Reasonableness Doctrine
As Congress passed mandatory minimum sentences in the late 1980s and 1990s,
judges began to resent the new restraints on their sentencing discretion. 38 Beginning in
2000, the U.S. Supreme Court decided a series of cases that effectively eliminated
mandatory sentencing and returned to courts a high degree of discretionary power. The
first of these cases, Apprendi v. New Jersey,39 involved a challenge of New Jersey‘s state
sentencing guidelines.40 In this case, the Court held that state sentencing guidelines that
allow a judge to enhance a defendant‘s sentence above the statutory maximum based
entirely on judge-found facts violate the defendant‘s Sixth Amendment right to a jury
trial.41 While this decision only applied to state sentencing guidelines, commentators
thought it inevitable that the Supreme Court would soon declare the federal Guidelines
unconstitutional.42
The next step toward the abolition of mandatory sentencing came in 2004 with the
Supreme Court‘s decision in Blakely v. Washington.43 In Blakely, the trial judge found
the applicable Guidelines range to be 49–53 months, yet sentenced the defendant to 90
months after finding that the defendant acted with ―deliberate cruelty.‖44 The Supreme
Court held that sentencing a defendant above the mandated Guidelines on the basis of
facts not found by a jury violated the defendant‘s Sixth Amendment right to a trial by
jury.45 While the Blakely decision did not explicitly rule the Guidelines unconstitutional,
many believed the decision ―sounded the death knell‖ for upward departures, and perhaps
the Guidelines as a whole.46
The ―death knell‖ finally sounded in 2005 in the form of United States v. Booker.47
36. Mistretta, 488 U.S. 361.
37. Id. at 412. For an in-depth look into the Mistretta holding, see Nagel, supra note 7, at 906–13.
38. Chatham, supra note 8, at 623; see also Don J. Benedictis, The Verdict Is In: Throw Out Mandatory
Minimum Sentences, Judges Tell ABA Journal Poll, A.B.A. J., Oct. 1993, at 78–79 (reporting the results of a
poll that found 45% of federal judges believed that the Guidelines should be abolished).
39. Apprendi v. New Jersey, 530 U.S. 466 (2000).
40. Id.
41. Id. at 490. The relevant portion of the Sixth Amendment reads: ―In all criminal prosecutions, the
accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein
the crime shall have been committed . . . to be confronted with the witnesses against him.‖ U.S. C ONST. amend.
VI.
42. Chatham, supra note 8, at 624. See generally Kyron Huigens, Solving the Apprendi Puzzle, 90 GEO.
L.J. 387, 434 (2002) (remarking that the Guidelines may soon be at their end).
43. Blakely v. Washington, 542 U.S. 296 (2004). In Blakely, the defendant kidnapped his wife in an effort
to convince her to terminate their divorce proceedings. Id. at 298. He ultimately pled guilty to second-degree
kidnapping. Id.
44. Id. at 300.
45. Id. at 313.
46. Chatham, supra note 8, at 625; see also Alan Vinegrad & Jonathan Sack, „Blakely‟: The End of the
Sentencing Guidelines?, N.Y. L.J., July 6, 2004, at 3 (noting that ―the entire federal guidelines scheme is on
precarious constitutional ground‖).
47. United States v. Booker, 543 U.S. 220 (2005). Booker was charged with ―possession with intent to
distribute at least 50 grams of cocaine base (crack).‖ Id. at 227. A jury found him guilty. Id.
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In Booker, the Court held, in a two-part opinion,48 that the mandatory application of the
Guidelines violates the Sixth Amendment. 49 This holding requires district court judges to
consider the Guidelines range when sentencing, but also ―tailor the sentence‖ in light of
the factors outlined at 18 U.S.C. § 3553(a) (§ 3553(a) factors). 50 These factors are:
(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 criminal conduct;
(C) to protect the public from further crimes by 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 sentences and the sentencing range [for the particular offense];
(5) any pertinent policy statement . . . ;
(6) the need to avoid unwanted sentencing 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. 51
In effect, the Booker holding requires district court judges to engage in a two-part
process when fashioning a sentence: (1) calculate the Guidelines range correctly and (2)
weigh the § 3553(a) factors.52
More significantly, for the purposes of this Note, the Court in Booker also
announced the standard for appellate review of district court-imposed sentences:
Appellate courts must review sentences for reasonableness. 53 Appellate courts previously
applied the reasonableness standard to Guidelines departures in the two decades leading
up to 2003.54 In that year, Congress modified 18 U.S.C. § 3742(e), adding a de novo
48. Justice Stevens delivered Part One of the opinion, addressing the unconstitutionality of mandatory
Guidelines, and Justice Breyer delivered Part Two, striking the language from the Sentencing Reform Act that
makes the Guidelines mandatory. Id. at 226, 244, 259. For a discussion of the two-part holding in Booker, see
Allan Ellis & James H. Feldman, Jr., Representing White-Collar Clients in a Post-Booker World, THE
CHAMPION, Sept.–Oct. 2005, at 12.
49. Booker, 543 U.S. at 226–27. For a discussion of the Booker opinion, see ANDROPHY, supra note 23, §
35:5, at 6 (briefly discussing the opinion‘s holding and analyzing the reasonableness standard); Chatham, supra
note 8, at 625–26 (examining the opinion and noting the emergence of variances); Ellis & Feldman, supra note
48, at 12–13 (providing an in-depth analysis of the opinion); Emigholz, supra note 21, at 596–97 (briefly
discussing the opinion‘s holding and its implications for white-collar criminals).
50. Booker, 543 U.S. at 245–46.
51. 18 U.S.C. § 3553(a) (2000 & Supp. 2003).
52. Rodney D. Perkins, Comment, Purpose-Based Sentencing of Economic Crimes After Booker, 11
LEWIS & CLARK L. REV. 521, 522 (2007). In weighing the § 3553(a) factors, a district court judge does not
need to expressly address each factor. United States v. Dean, 414 F.3d 725, 729 (7th Cir. 2005).
53. Booker, 543 U.S. at 261.
54. Id.
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standard of review for departures and striking the ―unreasonableness‖ language. 55 In
Booker, however, the Court concluded that ―[i]n light of today‘s holding, the reasons for
these revisions—to make Guidelines sentencing even more mandatory than it had been—
have ceased to be relevant.‖56 Accordingly, the Court chose to adopt the ―familiar‖
standard of reasonableness.57
3. Rita and the Presumption of Reasonableness for Within-Guidelines Sentences
After Booker, an aura of confusion settled over the circuit courts about how to apply
the reasonableness standard to sentences that fell within the Guidelines. 58 Some circuits
have concluded that these sentences are presumptively reasonable,59 while others have
disagreed.60 In Rita v. United States,61 two and a half years after Booker, the U.S.
Supreme Court made its first etching in the reasonableness landscape by resolving the
circuit split. In this case, the defendant committed perjury in front of a grand jury. 62 The
pre-sentence report recommended a Guidelines range of 33–41 months.63 The trial court
judge ultimately sentenced the defendant to 33 months imprisonment. 64 The Fourth
Circuit, in upholding the sentence, concluded that ―a sentence imposed within the
properly calculated Guidelines range . . . is presumptively reasonable.‖65 The Supreme
Court agreed.66 However, the Court made sure to clarify that its endorsement of a
presumption of reasonableness ―does not mean that courts may adopt a presumption of
unreasonableness.‖67 Specifically, the Court admonished appellate courts not to presume
that a variance from the Guidelines range is presumptively unreasonable. 68 Furthermore,
the presumption of reasonableness is ―an appellate court presumption‖; the Rita holding
does not entitle a district court to a ―legal presumption‖ that the Guidelines sentence
55. Id. The new language of the statute reads: ―[T]he court of appeals shall review de novo the district
court‘s application of the guidelines to the facts.‖ 18 U.S.C. § 3742(e) (2000 & Supp. 2003).
56. Booker, 543 U.S. at 261.
57. See Leigha Simonton, Booker‟s Impact on the Standard of Review Governing Supervised Release and
Probation Revocation Sentences, 11 BERKELEY J. CRIM. L. 129, 136 (2006) (discussing the Court‘s selection of
the reasonableness standard).
58. See infra Appendix C for post-Booker cases where district courts sentenced white-collar defendants
within the Guidelines. Notwithstanding the confusion, the federal appellate courts almost unequivocally
affirmed within-Guidelines sentences. See infra Appendix C.
59. E.g., United States v. Walker, 439 F.3d 890, 892 (8th Cir. 2006) (holding that ―a sentence within the
[G]uidelines range is presumptively reasonable‖).
60. E.g., United States v. Cage, 458 F.3d 537, 545 (6th Cir. 2006) (concluding that ―‗a presumption at the
district court would give undue weight to the Guidelines‘‖ (quoting United States v. Zauala, 443 F.3d 1165,
1169, 1190 (9th Cir. 2006))).
61. Rita v. United States, 127 S. Ct. 2456 (2007). For an in-depth discussion of Rita, see Craig M.
Bradley, Resurrecting the Sentencing Guidelines, TRIAL, Oct. 2007, at 52.
62. Rita, 127 S. Ct. at 2460.
63. Id. at 2461.
64. Id. at 2462.
65. Id.
66. Id. The Court noted, however, that the presumption is not binding. Rita, 127 S. Ct. at 2463. This
presumption of reasonableness reflects ―the fact that the Sentencing Commission examined tens of thousands of
sentences and worked with the help of many others in the law enforcement community over a long period of
time‖ in creating these Guidelines ranges. Id. at 2464.
67. Id. at 2467 (emphasis added).
68. Id.
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2008] From Booker to Gall 357
should be imposed.69
4. Gall and the End of the “Extraordinary Circumstances” and “Percentage”
Justifications
The U.S. Supreme Court‘s second, and arguably more dramatic, etching in the
federal sentencing landscape arrived in the form of Gall v. United States.70 In Gall, the
district court judge sentenced the defendant to probation, a 100% downward variance
from a Guidelines range of 30–37 months.71 In overturning the sentence, the Eighth
Circuit noted the extraordinary nature of the 100% downward variance and held that such
a variance ―must be . . . supported by extraordinary circumstances.‖ 72 The Supreme
Court strongly disagreed, holding that (1) abuse of discretion is the appropriate standard
for reviewing the reasonableness of a sentence,73 and (2) appellate courts may not require
―extraordinary circumstances‖ to justify a sentence outside the Guidelines range, nor may
they use ―rigid mathematical formula[s]‖ in determining the ―strength of the
justifications‖ needed for a particular sentence. 74 Of course, an appellate court may take
into account the amount of the variance, but it must give deference to the district court‘s
application of the § 3553(a) factors.75 Applying these principles to the facts of the case,
the Court found the district court judge‘s sentence reasonable. 76
B. Federal District Court Application of the Guidelines Today
In the post-Booker world, district courts essentially have three choices when
selecting an appropriate sentence: (1) award a downward departure or downward
variance, (2) sentence within the Guidelines, or (3) impose an upward departure or
upward variance.77 The Guidelines authorize departures;78 accordingly, when a district
court judge imposes a downward or an upward departure, the resulting sentence is
considered a ―Guideline sentence.‖79 A variance, on the other hand, is a sentence ―either
higher or lower than the relevant Guideline sentence‖ and is thus a ―non-Guideline
sentence.‖80
69. Id. at 2465.
70. Gall v. United States, 128 S. Ct. 586 (2007). Gall, a college student at the University of Iowa,
participated in a conspiracy involving the drug ―ecstasy.‖ Id. at 591–92. Although he participated in the
enterprise for only a short period of time and cooperated fully with the authorities during their investigation, the
government issued an indictment charging him with conspiracy to distribute various illegal drugs. Id. at 592.
Gall subsequently entered into a plea agreement with the government. Id.
71. Id. at 593.
72. Gall, 128 S. Ct. at 594. For an in-depth analysis of the role extraordinariness played in federal circuit
court reasonableness determinations in the years prior to Gall, see infra Part III.A.1.b.
73. Gall, 128 S. Ct. at 591.
74. Id. at 595. By ―rigid mathematical formula,‖ the Court means ―quantifying the variance as a certain
percentage.‖ Id.
75. Id. at 597.
76. Id. at 591. While Gall was not a white-collar crime case, Part III infra argues that the case will have
important ramifications for white-collar criminal sentencing and appellate review of those sentences.
77. United States v. Smith, 440 F.3d 704, 706–07 (5th Cir. 2006).
78. U.S. SENTENCING GUIDELINES MANUAL § 5K (2004).
79. Smith, 440 F.3d at 707.
80. Id.
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Variances are unique to the post-Booker world,81 and therefore present distinct
challenges to appellate courts applying the reasonableness doctrine. However, just as
within-Guidelines sentences and departures are subject to reasonableness review, so too
are variances. The remainder of this Note addresses how the federal appellate courts have
shaped the parameters of reasonableness for variances in the post-Booker/pre-Gall era
and how those parameters will shift in accordance with Gall‘s mandates.
III. ANALYSIS
This Part focuses on how federal appellate courts have developed the doctrine of
reasonableness for white-collar criminal sentencing in the three years since Booker. More
specifically, this Part examines the factors upon which appellate courts rely when
reviewing district court sentences that (1) represent a downward variance from the
Guidelines sentencing range and (2) represent an upward variance from the Guidelines
sentencing range.82 Are the parameters that justify reasonableness for downward and
upward variances balanced? Is an appellate court more likely to find a downward
variance or an upward variance reasonable? Finally, what impact will Gall‘s more
deferential standard of review have on the parameters of reasonableness? These questions
represent the fine, ornate etchings in the reasonableness landscape and will shape this
Note‘s analysis of these issues below. This Part begins with an analysis of the parameters
of reasonableness for downward variances.
A. Tomko and Downward Variances: A Qualitative Assessment of Reasonableness
1. The Tomko Standard Announced
In United States v. Tomko,83 the Third Circuit became the first circuit court to
explicitly enunciate the standard for appellate review of the reasonableness of downward
variances for white-collar criminals84: courts focus ―on the qualitative, rather than
quantitative, significance of [the] variance.‖85 Thus, instead of focusing on the number of
months that constitute an appropriate sentence, this Note infers that appellate courts
examined particular categories of factors when deciding whether a district court judge
handed down a reasonable downward variance. The past three years of circuit court case
law suggests that appellate courts have relied on two qualitative factors in determining
whether a particular downward variance for a white-collar criminal was reasonable: (1)
whether a district court imposed an actual prison sentence (in lieu of probation) when the
Guidelines range explicitly called for a prison sentence and (2) whether the factors used
81. See id. (noting that courts may give a non-Guidelines sentence after Booker).
82. As discussed supra Part II.A.4, district courts may also award an upward or downward departure. This
Note, however, limits the discussion to instances where a court imposes an upward or downward variance.
83. United States v. Tomko, 498 F.3d 157 (3d Cir. 2007), vacated for rehearing, No. 05-4997, 2008 WL
160210, at *1 (3d Cir. Jan. 17, 2008).
84. The Third Circuit, however, was not necessarily the first to apply the qualitative standard of
reasonableness for downward variances. Since Booker, the other circuits have also used qualitative measures to
determine the reasonableness of downward variances. See infra Parts III.A.1.b.i and III.A.1.b.ii for a discussion
of how the various circuits have applied qualitative standards.
85. Tomko, 498 F.3d at 167.
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to justify the downward variance were extraordinary.86 Together, these factors
determined where appellate court judges drew the line when reviewing downward
variances from Booker to Gall.
a. Prison/No Prison Distinction: The Great Divide
Prior to Gall, when the Guidelines range called for a term of imprisonment, whether
a district court issued a prison sentence to a white-collar defendant positively determined
the reasonableness of the sentence (in the absence of extraordinary circumstances). 87 As
one district court judge observed (with a measure of onomatopoeia): ―I think it is
important that [defendants] . . . hear the reverberating clang of the cell door behind them
to deter others.‖88 While no court has explicitly stated that a term of imprisonment is an
absolute prerequisite to a finding of reasonableness for downward variances, appellate
courts uniformly found district court sentences of probation or home confinement—in
lieu of actual prison sentences—to be unreasonable.89
Tomko illustrates this prison/no prison qualitative factor in action. In that case, the
defendant pled guilty to tax evasion.90 The district court sentenced him to 250 hours of
community service, three years of probation, and one year of home confinement. 91 In
overturning the sentence, the Third Circuit noted that this leniency ―reinforces the
perception that wealthy defendants can buy their way out of a prison.‖ 92 In addition, the
court concluded that, given the relative infrequency of white-collar prosecutions,
appellate courts have a legitimate interest in deterring would-be violators by not
sentencing probation for indisputably serious white-collar crimes.93 For the Tomko court,
the lack of imprisonment was essential to its finding that the sentence was
unreasonable.94
In contrast to the decision in Tomko, the Third Circuit upheld a downward variance
in United States v. Greenidge,95 a case in which the defendant was sentenced to 41
months imprisonment from a Guidelines range of 78–97 months.96 The Third Circuit
recognized that the district court adequately addressed the § 3553(a) factors and showed
―substantial leniency‖ in sentencing the defendant 47% below the bottom of the
Guidelines range.97 Despite the substantial downward variance, the court seemed
86. See infra Appendix A for a collection of cases that demonstrate these two factors.
87. For a discussion of the effect of extraordinary circumstances on the reasonableness of a downward
variance, see infra Part III.A.1.b.
88. United States v. Ediger, 166 F. App‘x 218, 226 (6th Cir. 2006).
89. See, e.g., United States v. Ture, 450 F.3d 352, 357 (8th Cir. 2006) (concluding that ―any sentence
without a term of imprisonment is wholly unreasonable‖).
90. Tomko, 498 F.3d at 159.
91. Id. at 162. The Guidelines range for his offense was 12–18 months imprisonment. Id. at 160.
92. Id. at 173.
93. Id. at 166.
94. While Tomko was recently vacated for rehearing by the Third Circuit, this Note contends that the
prison/no prison analysis will remain unaffected. Most likely, the Third Circuit will cure the Tomko court‘s
excessive reliance on the need for extraordinary justification, which is now unlawful under Gall.
95. United States v. Greenidge, 495 F.3d 85 (3d Cir. 2007).
96. Id. at 102 n.13. The jury found the defendant guilty of bank fraud and money laundering. Id. at 92.
97. Id. at 103.
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satisfied because the district court imposed at least some incarceration.98
The Eighth Circuit has had ample occasion to assess the reasonableness of
downward variances, and in so doing, has put some teeth into the prison/no prison
distinction. In United States v. Givens,99 the district court awarded the defendant
supervised release from a Guidelines range of 24–30 months of incarceration.100 In
reversing the sentence, the Eighth Circuit explicitly rejected the idea that ―prison is not
the answer.‖101 A sentence of supervised release simply does not ―reflect the seriousness
of the offense, promote respect for the law or provide just punishment.‖102 Other Eighth
Circuit cases involving probation for white-collar criminals reflect a similar expectation
for prison sentences—at least of some length—when the Guidelines range calls for
incarceration.103
Most circuits, including the Third and Eighth, have had the opportunity to utilize a
prison/no prison qualitative analysis for white-collar defendants‘ downward variances.104
The trend is clear: when a district court awards a sentence of probation in lieu of a prison
sentence, the appellate court will find that sentence to be unreasonable. 105 Given the
sheer pervasiveness of the prison/no prison distinction, this Note contends that the circuit
courts will continue to draw a bright line between probation sentences and downwardly
varying prison sentences, finding the latter sentences reasonable and the former sentences
unreasonable.
It is important to note that nothing in the Gall opinion precludes appellate court
application of the prison/no prison distinction. The distinction is based neither on the
need for extraordinary justification nor on a mathematical formula—both of which would
violate Gall—but rather on a finding that the district court abused its discretion in failing
to adequately address the § 3553(a) factors.106 As a result, such sentences are
unreasonable.107 Accordingly, appellate courts are free to utilize the prison/no prison
98. See id. at 102–03 (noting all of the factors addressed by the district court and finding the sentence to
be reasonable).
99. United States v. Givens, 443 F.3d 642 (8th Cir. 2006).
100. Id. at 644. The defendant pled guilty to bank fraud. Id. at 643.
101. Id. at 645.
102. Id. at 646.
103. See, e.g., United States v. Carlson, 498 F.3d 761, 764 (8th Cir. 2007) (discussing the need for a just
sentence and the need for a prison sentence to deter criminals, given that many tax crimes go undetected);
United States v. Ture, 450 F.3d 352, 357 (8th Cir. 2006) (concluding that a sentence without imprisonment is
wholly unreasonable).
104. See, e.g., United States v. Taylor, 499 F.3d 94, 95 (1st Cir. 2007) (holding that a nonjail sentence was
unreasonable), vacated, 128 S. Ct. 8783 (U.S. 2007), remanded to 532 F.3d 68 (1st Cir. 2008); United States v.
Livesay, 484 F.3d 1324, 1332 (11th Cir. 2007) (holding that a sentence of no jail time is ―utterly
disproportionate‖ to the defendant‘s serious crimes in light of the § 3553(a) factors), vacated, 128 S. Ct. 872
(2008), remanded to 525 F.3d 1081 (11th Cir. 2008); United States v. Rattoballi, 452 F.3d 127, 137 (2d Cir.
2006) (concluding that the district court‘s failure to impose a term of imprisonment was unreasonable); United
States v. Repking, 467 F.3d 1091, 1096 (7th Cir. 2006) (concluding that one day of incarceration is
insufficient); Brief of Defendant-Appellant at 17, United States v. O‘Neill, No. 05-30238, 2005 WL 4120977
(9th Cir. Oct. 11, 2005) (noting that some incarceration is needed).
105. See infra Appendix A.
106. See supra text accompanying note 102 (suggesting that circuit courts feel that a sentence of probation
or supervised release inadequately addresses § 3553(a) concerns).
107. See supra text accompanying note 105 (noting that circuit courts find sentences of probation patently
unreasonable).
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distinction in the future without violating Gall.
b. Extraordinariness108
Many white-collar criminals share similar characteristics—e.g., age, race, financial
status—making it difficult for district court judges to justify awarding a downward
variance based on one of these characteristics. Not surprisingly, most appellate courts
have ―raised an eyebrow‖ when district courts invoked extraordinariness as a justification
for a downward variance for white-collar criminals. Accordingly, when district courts
imposed sentences far below the Guidelines range, appellate courts have required that
these extraordinary reductions ―be supported by [truly] extraordinary circumstances.‖ 109
In addition, the further a sentence varied from the Guidelines range, the more detailed an
explanation the appellate courts required.110 The effect of this requirement was that both
the characteristics of the white-collar criminal and the circumstances surrounding her
offense needed to be truly exceptional for an appellate court reviewing her sentence to
find that a downward variance based on this extraordinariness was reasonable.
In the post-Gall world, requiring extraordinariness is no longer a viable option for
appellate courts.111 In function, this means that appellate courts can neither require the
presence of extraordinary circumstances to justify a significant downward variance, nor
require district courts to provide extraordinary justification when awarding substantial
downward variances.112 The following sections examine the evolution and development
of the extraordinariness requirement in the three years of circuit court case law after
Booker, and suggest how Gall will likely affect the manner in which district courts will
sentence white-collar defendants. Appellate courts have confronted extraordinariness
when reviewing white-collar defendants‘ downward variances for reasonableness in
several contexts, each of which this Note discusses below: (1) extraordinary age or
medical condition, (2) extraordinary charitable works, (3) extraordinary family situation,
(4) extraordinary restitution, and (5) extraordinary rehabilitation.
i. Extraordinary Age or Medical Condition
Appellate courts often face a white-collar sentence in which the defendant was
granted a downward variance due to his or her advanced age or medical condition. When
district courts have relied on advanced age as an extraordinary circumstance justifying an
extraordinary downward variance, appellate courts have generally found the variance
unreasonable. The Sixth Circuit confronted this scenario in United States v. Davis (Davis
I)113 and concluded that advanced age was not an extraordinary circumstance for a white-
108. For the purposes of this Note, an extraordinary downward variance means a downward variance of
95% or more.
109. United States v. Dalton, 404 F.3d 1029, 1033 (8th Cir. 2005).
110. Regina Stone-Harris, How to Vary from the Federal Sentencing Guidelines Without Being Reversed,
19 FED. SENT‘G REP. 183 (2007). Stone-Harris notes that this requirement is particularly applicable when
judges vary below the Guidelines. Id. The Court in Gall refers to this requirement as ―proportional review.‖
Gall v. United States, 128 S. Ct. 586, 596 (2007).
111. See supra note 74 and accompanying text for the Court‘s holding regarding extraordinariness.
112. While a court may take into account the extent of the variance, it must ―give due deference‖ to the
district court‘s conclusion that the § 3553(a) factors justify the variance. Gall, 128 S. Ct. at 597.
113. United States v. Davis (Davis I), 458 F.3d 491 (6th Cir. 2006), vacated, 128 S. Ct. 856 (2008),
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collar criminal that would justify a sentence of only one day in prison. 114 However, the
U.S. Supreme Court recently vacated the judgment in Davis I and remanded the case to
the Sixth Circuit for further consideration in light of Gall.115 On remand, the Sixth
Circuit, after holding that the 14-year gap between Davis‘s crime and his second
sentencing hearing represented an inappropriate sentencing factor, observed that ―Davis‘s
age[] may well support a variance.‖116 This Note argues that age may no longer be used
to strike down a sentence as unreasonable. Therefore, as the Sixth Circuit noted in Davis
II, if a white-collar defendant is advanced in age, a district court will be able to take that
fact into account when deciding whether to grant a downward variance.
An appellate court was more likely to uphold a downward variance as reasonable if
it was based on an extraordinary (severe) medical condition. In United States v.
Wadena,117 the Eighth Circuit reviewed the sentence of a defendant who was convicted
of mail fraud and sentenced to probation (even though the Guidelines range was 18–24
months).118 In upholding the sentence as reasonable, the court noted the extraordinary
nature of the defendant‘s medical problems: hypertension, Type II diabetes, kidney
disease (requiring dialysis three times per week), hearing loss, and cataracts. 119 Such
severity, however, is atypical; more often, a district court granted a downward variance
when the white-collar defendant‘s ailments were far less severe.120 In these situations, an
appellate court reviewing the sentence most often found that an extraordinary downward
variance based on a nonextraordinary medical condition was unreasonable. For example,
in United States v. Coughlin,121 the defendant, convicted of wire fraud and filing false tax
returns, received a sentence of probation, primarily due to health problems stemming
from his obesity.122 Concluding that the defendant‘s health problems were much less
severe than the defendant‘s ailments in Wadena, the Eighth Circuit held the reliance on
his nonextraordinary medical condition for an extraordinary variance to be
unreasonable.123 This result is far more consistent with how the other courts of appeals
(and the Eighth Circuit in other cases) viewed medical conditions when reviewing the
remanded to 537 F.3d 611 (6th Cir. 2008).
114. Id. at 498. In this case, the defendant was charged with bank fraud and received a sentence of one day
from a Guidelines range of 30–37 months. Id. at 493. In addition to age, the district court also concluded that a
delay in sentencing did not ―favor[] such a dramatic variance‖ Id. at 497 (emphasis added). In United States v.
Kahn, 193 F. App‘x 700 (9th Cir. 2006), the Ninth Circuit concluded that it was reasonable to consider
advanced age as a factor in deciding to award a downward variance. Id. at 702. Khan is distinguishable,
however, because the downward variance was not extraordinary—only a 66% reduction (compared to the near-
100% reduction in Davis I). Brief of Petitioner-Appellant at 24, United States v. Khan, 193 F. App‘x 700 (9th
Cir. 2005) (Nos. 05-50468, 05-50472), 2005 WL 4662811.
115. Davis I, 128 S. Ct. 856.
116. United States v. Davis (Davis II), 537 F.3d 611, 618 (6th Cir. 2008). The Sixth Circuit remanded the
case to the district court to consider whether Davis‘s age and other circumstances would warrant a sentencing
variance. Id.
117. United States v. Wadena, 470 F.3d 735 (8th Cir. 2006).
118. Id. at 736.
119. Id. at 737.
120. United States v. Coughlin, 500 F.3d 813 (8th Cir. 2007).
121. Id.
122. Id. at 817.
123. Id. at 818.
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2008] From Booker to Gall 363
reasonableness of extraordinary downward variances. 124
The following inferences emerge from these findings: (1) there is nothing
extraordinary about a white-collar criminal advanced in age and (2) it is not that unusual
for a white-collar criminal to have a medical condition (even a relatively major medical
condition). Indeed, unless a defendant had a whole host of ailments and required dramatic
medical treatment (or rather, colloquially speaking, the defendant had ―one foot in the
grave‖), appellate courts were unwilling to conclude that an extraordinary downward
variance was reasonable.
This Note contends, however, that the above inferences are irrelevant in the post-
Gall world. If the district court had decided Coughlin today, it would not matter that the
defendant‘s medical condition was not as severe as the defendant‘s ailments in Wadena.
Indeed, Gall enables district courts to base downward variances on medical conditions
that are nonextraordinary.125 As a result, white-collar defendants, who are often
advanced in age and ailing, will benefit as a class from district courts‘ newly enhanced
discretion. White-collar defendants will be more likely to receive probation or supervised
release as a result of their age or ailment, regardless of whether the ailment is
extraordinary or not.
ii. Extraordinary Charitable Works
The charitable works category of extraordinariness presents a unique situation to
district court judges; because of white-collar criminals‘ relative wealth, they are in an
excellent position to expend their resources for the benefit of their respective
communities.126 ―Indeed, ‗it is usual and ordinary, in the prosecution of . . . white-collar
crimes . . . to find that a defendant was involved as a leader in community charities, civic
organizations, and church efforts.‘‖ 127 Not surprisingly, these white-collar criminal
characteristics often ―tease‖ out of district courts dramatically reduced sentences. 128
While such sentences are not per se unreasonable,129 appellate court decisions over the
past three years overwhelmingly suggest that circuit court judges found extraordinary
124. See, e.g., United States v. Ture, 450 F.3d 352, 359 (8th Cir. 2006) (holding that the defendant‘s health
problem—a heart condition—is not so extraordinary as to warrant a sentence of no prison); United States v.
Twilley, 225 F. App‘x 817, 821 (11th Cir. 2007) (refusing to award a downward variance based on the
defendant‘s age and health condition).
125. See supra text accompanying note 74 for the Gall court‘s holding with respect to extraordinariness.
126. Emigholz, supra note 21, at 610; see also Sylvia Shaz Shweder, Note, Donating Debt to Society:
Prosecutorial and Judicial Ethics of Plea Agreements and Sentences that Include Charitable Contributions, 73
FORDHAM L. REV. 377, 404 (2004) (noting that ―white-collar defendants often have given charitable
contributions‖).
127. Emigholz, supra note 21, at 610 (quoting United States v. Kohlbach, 38 F.3d 832, 838 (6th Cir.
1994)).
128. See, e.g., United States v. Taylor, 499 F.3d 94, 96, 97 (1st Cir. 2007), vacated, 128 S. Ct. 8783 (2008),
remanded to No. 06-2216, 2008 WL 2673129 (1st Cir. July 9, 2008) (explaining that the district court in this
case awarded the defendant supervised release and probation from a Guidelines range of 30–37 months because
of ―extraordinary community involvement‖). See generally infra Appendix A for cases in which district courts
awarded dramatically reduced sentences for charitable works.
129. See U.S. SENTENCING GUIDELINES MANUAL § 5H, introductory cmt. (2004) (noting that
―exceptional‖ cases may warrant a sentence that does not fall within the Guidelines).
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variances based on ―extraordinary charitable works‖ unreasonable.130
In the pre-Gall years, the circuit courts set the reasonableness ―bar‖ for charitable
works incredibly high, perhaps unattainably high. In United States v. Taylor,131 the
defendant was an ―irreplaceable‖ African-American music teacher, serving as a role
model for students ―who often did not encounter educated and professional African
Americans.‖132 The district court judge found this level of involvement to be
extraordinary, awarding a sentence of supervised release and probation. 133 In reversing
the sentence, the First Circuit noted that ―[w]hile . . . extraordinary contributions to the
community may have justified a sentence with less imprisonment,‖ being an
―irreplaceable‖ role model to underprivileged students did not justify such an extreme
variance.134
The Fourth Circuit utilized what may be termed an ―ultra-extraordinary‖ charitable
works standard. In United States v. Baucom,135 the defendant was convicted of conspiracy
to defraud the United States and willful failure to file tax returns. 136 The district court
issued a sentence of probation, notwithstanding a Guidelines range of 21–27 months.137
In awarding a 100% downward variance, the district court relied on the defendant‘s
involvement in a group that brought children affected by the Chernobyl nuclear disaster
to the United States for medical treatment.138 The Fourth Circuit, in overturning the
sentence, was ―troubled‖ by the district court judge‘s reliance on the defendant‘s
involvement with the Chernobyl victims. 139 Given the remarkable nature of the
defendant‘s charitable works, the Fourth Circuit‘s decision raises the question of whether
any charitable works would have been sufficient to justify a radical downward variance.
While the Fourth Circuit may have held an extreme position regarding charitable
works, other circuits addressing the issue have uniformly reversed extraordinary
downward variances based on charitable works (whether extraordinary or not). 140 In
effect, the circuit courts were speaking out of both sides of their mouths: they concluded
130. See Appendix A for a list of cases in which appellate courts reversed extraordinary variances that had
been based on ―extraordinary‖ charitable works.
131. Taylor, 499 F.3d at 94. In Taylor, the defendant was an elementary school teacher and part-time tax
preparer. Id. at 95–96. A jury found him guilty of 16 counts of aiding in the preparation of false tax returns. Id.
at 96.
132. Id. at 97.
133. Id.; see also supra note 104 (discussing the holding in the Taylor case).
134. Taylor, 499 F.3d at 102 (emphasis added).
135. United States v. Baucom, 486 F.3d 822 (4th Cir. 2007), vacated 128 S. Ct. 870 (2008).
136. Id. at 824.
137. Id. at 828–29.
138. Id. at 829.
139. Id. at 831.
140. See, e.g., United States v. D‘Amico, 496 F.3d 95, 107 (1st Cir. 2007) (concluding 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‖); United States v. Tomko, 498 F.3d 157,
167 (3d Cir. 2007) (concluding that the defendant‘s work with Habitat for Humanity did not justify the district
court‘s extreme downward variance), vacated for rehearing, 513 F.3d 360, 360 (3d Cir. 2008); United States v.
Carlson, 498 F.3d 761, 765–66 (8th Cir. 2007) (concluding that the defendant‘s involvement in the community
and in his church, and the ―impact he has had on many lives‖ was not extraordinary enough to justify the 100%
downward variance); United States v. Repking, 467 F.3d 1091, 1095–96 (7th Cir. 2006) (concluding that a
former bank president‘s charitable works did not justify a near-100% variance, ―especially since charitable
works are entirely consistent with a bank‘s business development plan‖).
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that exceptional charitable works may justify extreme downward variances, yet in
practice, categorically overturned such downward variances. 141 The result rings clear: as
far as charitable works go, nothing short of curing cancer would have kept a white-collar
defendant out of jail.
All of that changes after Gall, however. Appellate courts will no longer be able to
overturn white-collar defendants‘ downward variances that are based on good works in
the community.142 Indeed, the U.S. Supreme Court has already vacated the judgments in
both Taylor143 and Baucom.144 On remand, the First Circuit in Taylor took the modest
approach of providing the district court an opportunity to reconsider its sentence in light
of Gall.145 This Note argues that other circuit courts, on remand, will likely reinstate the
district courts‘ sentences of probation for the defendants because the circuit courts will no
longer be able to conclude that the charitable works at issue are not extraordinary enough.
Alternatively, circuit courts may follow the path paved by the Taylor court and remand
sentences to district courts for reconsideration in light of Gall. Ultimately, for white-
collar defendants in general, Gall may represent a ―get-out-of-jail‖ card. White-collar
defendants who show dedication to a particular charitable cause (whether such dedication
is extraordinary or not) may be able to persuade district courts to sentence them leniently.
iii. Extraordinary Family Situation
White-collar criminals often seek a downward variance by invoking the ―family
problem‖ rationale.146 In a typical case, the defendant argues that some family exigency
exists (e.g., a family member has a medical condition and the defendant is the primary
caregiver) that requires a sentence of probation or supervised release. 147 Because the
Guidelines state that ―family ties and responsibilities are not ordinarily relevant,‖148
appellate courts required these family situations to be exceptional. 149 Precisely which
141. See, e.g., supra note 134 and accompanying text. Some circuits have shown a willingness to affirm
nonextraordinary variances that are based on charitable works. See, e.g., United States v. Kane, 452 F.3d 140,
142, 145 (2d Cir. 2006). In Kane, the defendant was sentenced to 24 months imprisonment, which was only six
months below the bottom of the Guidelines range. Id. at 142. The Second Circuit hinted that the defendant‘s
good works were sufficient to support this sentence but would not support a more radical variance. Id. at 145.
142. Such downward variances must of course be procedurally and substantively reasonable; in other
words, such sentences may be overturned on other grounds not having to do with the nature of the defendant‘s
charitable works.
143. United States v. Taylor, 128 S. Ct. 8783 (2008).
144. Baucom, 486 F.3d at 870.
145. Taylor, 532 F.3d 68. This approach—remanding to the district court for reconsideration—was first
utilized by the First Circuit in United States v. Tom, 504 F.3d 89 (1st Cir. 2007), vacated, 128 S. Ct. 1132
(2008), remanded to 275 F. App‘x 23 (1st Cir. 2008). See infra note 172.
146. See, e.g., Tom, 504 F.3d at 89 (invoking his daughter‘s illness as his ―family problem‖).
147. See, e.g., id. at 92–93 (noting that the defendant argued that because his daughter was suffering from
heavy metal poisoning and he was her ―necessary caregiver,‖ he should receive probation.).
148. U.S. SENTENCING GUIDELINES MANUAL § 5H1.6 (2004). Though this section of the Guidelines
specifically refers to sentencing departures, appellate courts in the post-Booker world import the reasoning to
variances as well. See, e.g., Tom, 504 F.3d at 97–98 (discussing this section of the Guidelines in the context of a
variance).
149. See United States v. Menyweather, 447 F.3d 625, 632 (9th Cir. 2006) (holding that a family
circumstance must be ―‗present to an exceptional degree or in some other way that makes the case different
from the ordinary case where the factor is present‘‖ (quoting Koon v. United States, 518 U.S. 81, 96 (1996))).
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family problems were exceptional, as would have made a downward variance reasonable,
is not initially clear when comparing circuit court decisions addressing this issue.
As an illustration, consider a white-collar defendant with an ailing child. The circuits
did not agree on how severe the child‘s medical condition needed to be to support a
downward variance. Indeed, there was even disharmony within the First Circuit over the
issue.150 In United States v. Tom,151 the defendant pled guilty to insider trading. 152 The
Guidelines range for his offense was 37–46 months.153 In support of his request for
probation, the defendant argued that his daughter was suffering from heavy metal
poisoning and, as her primary caregiver, it was his responsibility to care for her. 154 The
district court awarded the defendant probation, but the First Circuit reversed, concluding
that the defendant‘s ―family problem‖ did not make his probation sentence reasonable. 155
Conversely, in United States v. Antonakopoulos,156 the First Circuit reached the
opposite conclusion. There, a jury convicted the defendant of bank fraud and
embezzlement.157 The judge sentenced the defendant to 30 months imprisonment.158 The
district court declined to vary from the Guidelines range, in spite of the fact that the
defendant‘s son suffered from brain damage and required constant care. 159 On appeal, the
First Circuit concluded that the district court, recently emancipated from the mandatory
Guidelines regime, could have given the defendant a lower sentence based on his
extraordinary family situation. 160
The Eighth Circuit sided with the Antonakopoulos court. In United States v.
Wadena,161 the defendant was convicted of mail fraud. 162 In upholding the defendant‘s
sentence of probation, the court relied primarily on the defendant‘s extraordinary medical
conditions163 and the fact that he was the primary caregiver of his son, who suffered from
fetal alcohol syndrome (FAS). 164 While the court recognized that the variance was based
on more than one factor, it hinted that the family situation would have been enough to
support the variance (subject to further examination of the son‘s medical condition and
150. Compare Tom, 504 F.3d at 89 (holding that a downward variance could not be rendered reasonable
due to the defendant‘s daughter‘s illness), with United States v. Antonakopoulos, 399 F.3d 68 (1st Cir. 2005)
(finding that the defendant‘s argument for downward variance based on his son‘s illness was not frivolous).
151. Tom, 504 F.3d at 89.
152. Id. at 91–92.
153. Id. at 93.
154. Id.
155. Id. at 97.
156. Antonakopoulos, 399 F.3d at 68.
157. Id. at 71.
158. Id.
159. Id. at 74.
160. The defendant failed to raise this issue on appeal. Id. at 83. Given that the Supreme Court had just
decided Booker, it seems the appellate court felt obligated to apprise the defendant of his newly created
opportunity to seek a variance based on his son‘s condition.
161. United States v. Wadena, 470 F.3d 735, 736 (8th Cir. 2006). For a discussion of the Wadena case, see
text accompanying supra notes 117–19.
162. Id.
163. See supra note 119 and accompanying text (discussing the court‘s treatment of the defendant‘s
medical conditions).
164. Wadena, 470 F.3d at 739, 740.
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the extent of the defendant‘s care-giving duties).165
These cases evince a subtle conclusion about white-collar defendants with ailing
children: if the ailment was a permanent, noncurable condition (e.g., FAS or brain
damage), appellate courts upheld as reasonable downward variances based on such
conditions. However, if the condition was not only treatable, but also curable (e.g., heavy
metal poisoning),166 the court was likely to find a downward variance based on such a
condition to be unreasonable. In other words, an extraordinary ailment, such that would
have made a downward variance reasonable, was defined by a combination of the
severity and permanency of the condition.
However, this did not end the inquiry. Appellate courts also determined whether it
was necessary for the white-collar defendant to be active in the child‘s care. If the child‘s
well-being was contingent upon the defendant‘s presence, then the reviewing court
upheld a downward variance as reasonable.167 Where the defendant‘s presence was not
necessary to ensure the child‘s well-being, then the appellate court found the downward
variance unreasonable.168 In sum, concluding whether a downward variance based on a
white-collar defendant with an ailing child was reasonable involved a determination of:
(1) the severity/permanency of the condition and (2) the defendant‘s role in the care and
rehabilitation of the child.
Of course, family situations arise in other contexts as well. 169 However, regardless
of the type of family situation, appellate courts utilized an analysis that is functionally
equivalent to the two-prong test discussed above; courts examined the severity of the
situation and the necessity of the defendant‘s presence and participation when
determining whether the downward variance was reasonable. If the appellate court found
the combination of these factors sufficiently extraordinary, then it concluded that the
sentence was reasonable.170
165. See id. (concluding that ―[i]f Wadena‘s role in caring for his son was the sole ground for the
downward variance, the district court‘s treatment of the issue might warrant further examination as to the son‘s
condition and the necessity of Wadena‘s care giving‖).
166. Of course, heavy metal poisoning can result in permanent damage, and even death, if untreated.
Samara Soghoian et al., Toxicity, Heavy Metals, EMEDICINE, Jul. 18, 2008,
http://www.emedicine.com/emerg/topic237.htm. However, in Tom, the illness was not life threatening (perhaps
not even heavy metal poisoning at all). United States v. Tom, 504 F.3d 89, 93 (1st Cir. 2007), vacated, 128 S.
Ct. 1132 (2008), remanded to 275 F. App‘x 23 (1st Cir. 2008).
167. See, e.g., Wadena, 470 F.3d at 739 (noting that the defendant was the sole caretaker of his dependant,
FAS-stricken son).
168. See, e.g., Tom, 504 F.3d at 93 (concluding that even if the daughter did require treatment for her
medical condition, Tom‘s presence was not ―essential,‖ and therefore his family situation did ―not rise to the
level that would result in a departure‖).
169. See, e.g., United States v. Holz, 118 F. App‘x 928, 933–34 (6th Cir. 2004) (accepting the district
court‘s factual finding that the defendant‘s wife was mentally ill); United States v. McClatchey, 316 F.3d 1122,
1130 (10th Cir. 2003) (noting that the district court relied on the fact that the defendant‘s son had been
diagnosed with ―severe psychological disabilities,‖ including ―attention deficit hyperactivity disorder . . .
obsessive compulsive disorder, [and] paraphilia . . . a sexual disturbance‖).
170. See, e.g., United States v. Menyweather, 447 F.3d 625, 633 (9th Cir. 2006) (holding that the ―facts and
circumstances [showed] unusual traumatic circumstances‖: (1) the defendant‘s husband was murdered; (2) the
unusual relationship between the defendant and her daughter as a result of this trauma; and holding that the
district court did not abuse its discretion in finding that the child needed the defendant‘s care); United States v.
DeVegter, 439 F.3d 1299, 1307 (11th Cir. 2006), reh‟g en banc denied, 179 F. App‘x 686 (11th Cir. 2006), new
sentence aff‟d, 260 F. App‘x 240 (11th Cir. 2008) (concluding that the defendant‘s dyslexic son and mother-in-
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This two-prong test may survive scrutiny under the Gall regime if appellate courts
take extraordinariness out of the equation. Nothing in the Gall opinion precludes a court
from considering the severity of a family situation or the necessity of the defendant‘s
presence to resolve a family situation. Indeed, this Note argues that a proper assessment
of the reasonableness of a downward variance based on a family situation necessarily
requires an analysis of the two-prong factors. However, by removing extraordinariness as
a basis for justifying a downward variance, Gall may mean that white-collar defendants
will actually receive harsher penalties (at least in the context of family situations). For
example, the Antonakopoulos court would not have been at liberty to recommend that the
district court judge give the defendant a more lenient sentence based on his extraordinary
family circumstance.171 On the other hand, in Tom, which is on remand to the district
court for rehearing in light of Gall,172 the court might resolve the sentencing in favor of
the defendant; it may find that, after balancing the § 3553(a) factors and considering the
two-prong test, the defendant should receive a sentence of probation or supervised
release. In sum, it is uncertain how Gall will affect white-collar defendants who have
family situations and seek probation or supervised release.
iv. Extraordinary Restitution
Because white-collar criminals are typically affluent individuals, 173 they are often in
an excellent position to provide monetary recourse for the harms they cause. White-collar
criminals, therefore, have an especially difficult time satisfying the extraordinariness
standard by making financial restitution. Indeed, the Guidelines‘ position is that
restitution should not be grounds for departure unless based on exceptional ―efforts to
remedy the harm caused by the offense.‖ 174 For the appellate courts, the question
became, how can one white-collar criminal‘s efforts to make restitution be extraordinary
if other white-collar criminals‘ efforts are essentially the same? Is it possible that, for the
category of restitution, white-collar criminals‘ homogeny (at least in terms of wealth or
ability to repay) precluded a finding of extraordinary restitution?
Several circuits have confronted claims of extraordinary restitution in the years since
Booker. In United States v. Anderson,175 the defendant pled guilty to insider trading.176
law with failing health were not extraordinary enough to make the sentence reasonable). While these two cases
involve departures, rather than variances, the reasoning employed is nonetheless applicable to variances.
171. See supra text accompanying note 159 for the Antonakopoulos court‘s discussion of the extraordinary
family situation.
172. United States v. Tom, No. 07-1074, 2008 WL 1886608 (1st Cir. Apr. 30, 2008). On remand, the First
Circuit chose a ―middle course‖ solution, electing neither to reinstate the district court‘s sentence nor to hold
that the district court‘s sentence was an abuse of discretion under Gall. Id. at *1. Instead, the court opted to
remand the sentence to the district court for reconsideration with the instruction that the district court must
include a ―new statement of reasons‖ with any sentence imposed. Id. at *2.
173. See Lisa G. Lerman, Blue-Chip Bilking: Regulation of Billing and Expense Fraud by Lawyers, 12
GEO. J. LEGAL ETHICS 205, 253 (1999) (noting that white-collar criminals often have great wealth and
professional reputations).
174. U.S. SENTENCING GUIDELINES MANUAL § 5K2.0(d)(5) (2004). While this Guidelines provision
applies to departures, the circuits apply its reasoning to variances in the post-Booker world. See, e.g., United
States v. Carlson, 498 F.3d 761, 766 (8th Cir. 2007) (noting that the defendant‘s repayment efforts were not
―exceptionally compelling‖).
175. United States v. Anderson, 267 F. App‘x 847 (11th Cir. 2008).
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The district court awarded the defendant a 100% downward variance of probation, even
though the Guidelines recommended a sentence of 18–24 months.177 In justifying the
downward variance, the district court judge relied primarily on: the defendant‘s ―prompt‖
settlement of a civil action by the SEC; 178 the defendant‘s ―genuine intent to make
amends for his wrongdoing‖; 179 and the timing of the defendant‘s cooperation with the
SEC.180 Additionally, the district court judge thought the settlement was ―very hard on
[the defendant] and his family.‖181 The district court judge seemed to rely on a set of
factors, articulated in United States v. Kim,182 that the Eleventh Circuit uses to determine
whether restitution is extraordinary. These factors include: (1) the degree of
voluntariness, (2) the extent of the defendant‘s efforts in making restitution, (3) the
percentage of funds restored, (4) the timing of the restitution, and (5) whether the
defendant‘s motives demonstrate sincere remorse and acceptance of responsibility.183
Indeed, the district court judge addressed each of the above factors explicitly, with the
exception of the ―percentage of funds restored‖ factor.184
The Eleventh Circuit initially reversed the district court‘s sentence, concluding that
nothing in the record suggested that the defendant‘s restitution was extraordinary. 185 The
fact that the defendant met the terms of his plea agreement by paying a fine he could
afford, and did pay the fine, was not sufficiently extraordinary to make the downward
variance reasonable. After the Supreme Court decided Gall, however, the defendant
requested reconsideration of the Eleventh Circuit‘s decision. 186 On rehearing, the
Eleventh Circuit affirmed the district court‘s sentence. 187 In affirming the sentence, the
court concluded that the district court judge did not abuse his discretion; he thoroughly
assessed the relevant § 3553(a) factors, especially those that evoke the Kim factors.188
The Eighth Circuit has also demonstrated an unwillingness to find that a white-collar
criminal‘s restitution is extraordinary. In United States v. Carlson,189 the defendant pled
guilty to willfully failing to account for and pay over trust fund taxes. 190 He received a
176. Id. at 848.
177. Id. at 849.
178. Id. at 849–50.
179. Id. at 850.
180. Anderson, 267 F. App‘x at 850. Specifically, the district court judge noted that the government did not
begin its investigation until after the SEC resolved its civil claims with the defendant, indicating that the
defendant‘s cooperation was not an attempt to minimize his criminal liability. Id.
181. Brief of Plaintiff-Appellant at 9, Anderson, 267 F. App‘x at 847 (No. 07-11848-JJ), 2007 WL
2173488, at *8 (11th Cir. June 19, 2007).
182. United States v. Kim, 364 F.3d 1235, 1244 (11th Cir. 2004).
183. Id. This Note does not claim that the district court actually applied these factors; however, the court‘s
discussion of the defendant‘s restitution, and the circumstances surrounding the restitution, suggest that the
court was aware of the Eleventh Circuit‘s decision in Kim.
184. See Anderson, 267 F. App‘x at 850. The ―prompt‖ payments to the SEC evoke the ―voluntariness,‖
―defendant‘s efforts,‖ and ―motives‖ factors. The defendant‘s ―genuine intent to make amends‖ relates to the
―voluntariness‖ and ―motive‖ factors. Finally, the timing of the defendant‘s cooperation relates to, of course, the
―timing‖ factor.
185. Id. at 850.
186. Id.
187. Id.
188. Id. at 848, 850.
189. United States v. Carlson, 498 F.3d 761 (8th Cir. 2007).
190. Id. at 762.
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sentence of home confinement and probation, a 100% downward variance from a
Guidelines range of 18–24 months.191 The district court judge based this variance partly
on the defendant‘s ―exceptional effort to repay the money.‖ 192 The Eighth Circuit
reversed, concluding that the extraordinary factors on which the district court relied were
not ―sufficiently compelling.‖193 Specifically, the circuit court did not think that the
defendant‘s repayment of the entire amount of the loss, 194 nor his repayment efforts,195
were sufficiently exceptional as to make the sentence reasonable.196
Other circuit courts that have reviewed a claim of extraordinary restitution have
uniformly concluded that these efforts are not extraordinary. 197 The common
characteristic that white-collar criminals share—the ability to, literally, ―pay for their
wrongs‖—seemed to bar a finding of extraordinary restitution. While the circuit courts
had mechanisms in place to allow for extraordinary restitution to support downward
variances—i.e., the Kim court‘s factor test—these mechanisms did not work in favor of
white-collar criminals (with the exception of Anderson on remand). Perhaps the circuit
courts would have, in the absence of Gall‘s requirements, utilized these mechanisms to
support a downward variance as reasonable. However, it is clear from Booker to Gall that
no amount of restitution, even arguably extraordinary restitution, supported a finding that
a downward variance was reasonable.
Gall will likely have the same impact on the category of restitution as it will have on
the category of charitable works because white-collar defendants are just as able to make
restitution as they are to engage in charity. As with charitable works, appellate courts will
no longer overturn white-collar criminals‘ downward variances because their restitution
efforts are not extraordinary. Thus, for example, the defendant in Anderson chose to
challenge the Eleventh Circuit‘s reversal of his sentence, and succeeded because that
court had relied excessively on the fact that his restitution efforts were not sufficiently
extraordinary.198 In addition, appellate courts may no longer employ mechanisms such as
the Kim factor test. Because those mechanisms are aimed at ascertaining the existence of
extraordinariness, they are in direct conflict with Gall‘s directive that extraordinariness
be left out of the equation.
v. Extraordinary Rehabilitation
In a white-collar criminal conviction, the defendant may be able to demonstrate
extraordinary rehabilitation, thereby opening up the possibility of a downward variance
191. Id. at 762–63.
192. Id. at 763.
193. Id. at 765.
194. The defendant repaid $385,000 in losses. Carlson, 498 F.3d at 766.
195. The defendant‘s efforts included withdrawing money from his retirement account and borrowing a
large sum of money from friends. Id.
196. Id.
197. See, e.g., United States v. Repking, 467 F.3d 1091, 1096 (7th Cir. 2006) (concluding that even if the
defendant repaid $1 million, that would not support the below-Guidelines sentence); United States v. Filipiak,
466 F.3d 582, 584 (7th Cir. 2006) (noting that there was nothing extraordinary about the defendant‘s restitution
―with readily available funds‖).
198. See supra text accompanying notes 187–88 for a discussion of the Anderson holding.
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based on post-offense rehabilitation.199 However, the circuit courts have been
tremendously uncertain over exactly what constitutes extraordinary rehabilitation; indeed,
―courts‘ approach to rehabilitation [variances] is in large measure ad hoc.‖200
Extraordinary rehabilitation, as applied to white-collar criminals, is somewhat of a unique
concept, especially as compared to drug users, for example. This is because white-collar
criminals normally lead crime-free lives, then momentarily slip into criminal conduct,
only to return to their law-abiding lives ―when confronted by the law‘s terrors.‖ 201 Can
such rehabilitation—returning to ―average‖ or ―normal‖—ever be extraordinary?202
For some circuits, the answer to this question was a resounding ―no.‖ In United
States v. Wallace,203 the defendant, who led an exemplary life up until his ―one, stupid
crime,‖204 pled guilty to wire fraud and received probation, a 100% downward variance
from a Guidelines range of 24–30 months.205 The district court judge based this extreme
variance in part on the defendant‘s enrollment in psychological counseling and Gamblers
Anonymous.206 In reversing the sentence, the Seventh Circuit concluded that the
rehabilitation was ―not out of the ordinary at all, much less extraordinary enough to
justify the extremely lenient sentence the court imposed.‖207 For the Seventh Circuit, the
fact that the defendant took steps to correct emotional or psychological issues that may
have contributed to his lapse into criminal activity was not extraordinary rehabilitation.
The Eighth Circuit also took issue with a white-collar criminal‘s extraordinary
rehabilitation claim. In United States v. Givens,208 the defendant pled guilty to bank
fraud.209 The district court judge sentenced the defendant to time served (even though he
had served no time) and supervised release, a 100% downward variance from a
Guidelines range of 24–30 months.210 In support of this drastic downward variance, the
district court judge noted that the defendant ―had done what he could to make things
right‖ and came forward with his crime. 211 The Eighth Circuit reversed the sentence,
holding that the district court abused its discretion in awarding such a dramatic variance
based on nonextraordinary post-offense rehabilitation.212 In particular, the appellate court
was unclear how the defendant could have been ―rehabilitated, given his prior history of
199. Martin S. Himeles, Jr. & Deborah S. Richardson, Post-Offense Rehabilitation: The Means to a Pre-
Guidelines World or a Path to Departure Abuse?, 11 FED. SENT‘G REP. 328, 328 (1999).
200. Id. at 329. Himeles and Richardson argue that ―the impact of rehabilitation on sentencing should
depend on such factors as the extent of the defendant‘s preexisting problems, the degree of effort required to
achieve the rehabilitation, the degree of rehabilitation achieved, the level of certainty that the rehabilitation is
real and permanent, and other highly individualized considerations.‖ Id.
201. United States v. Hawkins, 228 F. Supp. 2d 143, 158 (E.D.N.Y. 2005).
202. Id. at 158–59.
203. United States v. Wallace, 458 F.3d 606 (7th Cir. 2006), vacated, 128 S. Ct. 856 (2008).
204. Id. at 612.
205. Id. at 606.
206. Id. at 608. The district court also noted that the defendant‘s ―extraordinary remorse‖ indicated that his
rehabilitation process had already begun. Id.
207. Wallace, 458 F.3d. at 612.
208. United States v. Givens, 443 F.3d 642 (8th Cir. 2006).
209. Id. at 643.
210. Id.
211. Id. at 644.
212. Id. at 645.
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upstanding living outside the perpetrated fraud.‖213 The Eighth Circuit was unable to
perceive how the district court evinced ―extraordinary rehabilitation‖ from someone who
merely returned to ―normal.‖ 214
The Second Circuit took a more lenient approach when considering post-offense
rehabilitation. In United States v. Hawkins,215 the defendant pled guilty to health care
fraud and mail fraud.216 The district court judge subsequently sentenced her to probation,
a 100% downward variance from a Guidelines range of 12–18 months. The district court
based the downward variance exclusively on the defendant‘s extraordinary post-offense
rehabilitation, noting her efforts to maintain employment and her improved care of her
daughter.217 The Second Circuit affirmed the downward variance, concluding that the
district court properly considered the § 3553(a) factors in fashioning a below-Guidelines
sentence. This case is distinguishable from Givens and Wallace because the defendant
here did not begin as an ―average‖ or ―normal‖ person (at least in terms of socio-
economic status); rather, she grew up in a criminal family, dropped out of high school,
had a child out of wedlock, and ignored her parental duties. 218 Therefore, her
transformation into an employed, more responsible parent seems dramatic in comparison
to that of the defendants‘ transformations in Givens and Wallace.
A reasonable downward variance based on extraordinary rehabilitation appears to
have been a function of the location of a particular defendant‘s ―starting line‖ and ―finish
line‖: the closer the two, the less extraordinary the rehabilitation. The circuit courts have
held that a wealthy individual who committed a white-collar crime and merely returned
to being a wealthy individual has not undergone extraordinary rehabilitation. 219
Conversely, when a white-collar defendant began lower on the socio-economic ―ladder‖
and made dramatic, multi-faceted improvements post-offense, the appellate court
considered these improvements to be extraordinary rehabilitation.
Of course, this distinction is irrelevant after Gall. Appellate courts are no longer able
to require that the gap between the starting line and finishing line for a white-collar
defendant be extraordinary. Accordingly, it is possible that if circuit courts were deciding
both Givens and Wallace today, the outcomes would be very different. In Wallace, for
example, the defendant‘s enrollment in psychological counseling and Gamblers
Anonymous,220 though not extraordinary, might have been enough to withstand abuse-
of-discretion review under Gall. Similarly, returning to ―normal‖ may have been enough
to uphold the defendant‘s probation sentence in Givens. In short, post-Gall, the restitution
category will likely result in appellate courts affirming more downward variances for
white-collar criminals.
213. Givens, 443 F.3d at 645.
214. Id. at 644.
215. United States v. Hawkins, 228 F. App‘x 107 (2d Cir. 2007).
216. Id. at *1.
217. United States v. Hawkins, 380 F. Supp. 2d 143, 175–76 (E.D.N.Y. 2005). The district court reached
this conclusion even though the defendant falsely certified that she was unemployed and cashed checks illegally
during her ―rehabilitative period.‖ Id. at 176.
218. Id. at 162.
219. This is not to say the individual has not been rehabilitated at all; rather, such an individual‘s
rehabilitation was not considered extraordinary for the purposes of justifying a reasonable downward variance.
220. See supra text accompanying note 206 for the district court‘s identification of the defendant‘s
rehabilitation efforts.
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2. Putting it All Together: Well-Defined Parameters
In the above sections, this Note analyzed the Tomko qualitative factors that shaped
the parameters of reasonableness for downward variances in the years between Booker
and Gall, and then discussed the implications of Gall on these parameters. Two
observations surface from the analysis of these qualitative factors. First, the factors were
not mutually exclusive; rather, some combination was usually present during appellate
review of a white-collar criminal‘s sentence. If a district court did not issue a sentence of
incarceration, for example, then the appellate court looked for an extraordinary factor, or
(preferably) a combination of extraordinary factors, in determining whether the variance
was reasonable.221
Second, the parameters of reasonableness for downward variances were remarkably
well-defined. The circuit courts shaped these parameters so clearly in the last three years
that a white-collar defendant could be reasonably certain which factors would work for
and against her under appellate review. For example, if a white-collar defendant received
a sentence of probation when the Guidelines called for a sentence of at least some
incarceration, that defendant could reasonably expect the reviewing court to reverse the
sentence. Similarly, white-collar defendants knew which factors under the
―extraordinariness‖ category would support a reasonable downward variance. 222
The impact of Gall on downward variances, while unraveling much of the circuit
courts‘ work in shaping the parameters of reasonableness, will not eviscerate the
predictive quality of appellate review of downward variances. Appellate courts will still
be skeptical of extreme downward variances involving no prison when the Guidelines
call for some prison time. 223 However, white-collar defendants can now be reasonably
certain that appellate courts will not discount their age or medical condition, financial
status (i.e., the ability to make restitution and perform charitable works), and
rehabilitative efforts when reviewing downward variances under the deferential abuse of
discretion standard. Such certainty does not exist, however, when district courts issue
sentences that vary upwards from the applicable Guidelines range.
B. White-Collar Criminals and Upward Variances: A Functional Presumption of
Reasonableness?
In stark contrast to the well-defined parameters of reasonableness for downward
variances, the landscape for upward variances was much less clear in the years following
Booker. Specifically, the circuit courts did not have a comparable well-developed, factor-
based system in place for determining the reasonableness of upward variances imposed
221. See, e.g., Hawkins, 228 F. App‘x at 110 (concluding that extraordinary rehabilitation was enough to
support a non-prison sentence); United States vs. Wadena, 470 F.3d 735, 735 (8th Cir. 2006) (concluding that
extraordinary medical conditions and extraordinary family situation were enough to support a non-prison
sentence).
222. Extraordinary medical conditions, family situations, and rehabilitation could support downward
variances, while any quantum of restitution and charitable works would probably not.
223. Gall does not preclude this skepticism; indeed, the opinion provides that appellate court judges may
―consider the extent of the deviation‖ when reviewing a sentence for reasonableness. Gall v. United States, 128
S. Ct. 586, 597 (2007).
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on white-collar criminals.224 Instead, the circuit courts painted with broad, ambiguous
brush strokes, leaving behind many unanswered questions about the reasonableness of
upward variances. This is not to say that the results of appellate review of upward
variances were ambiguous; on the contrary, the result was almost always the same:
upward variances for white-collar criminals were mostly upheld as reasonable.225 The
real problem is the reasoning (or lack thereof) used by the circuit courts to justify such
results. This Part addresses how the circuits used ―hide-behind‖ strategies to avoid having
to engage in a meaningful analysis of reasonableness for upward variances, and discusses
what, if any, impact Gall may have on appellate review of upward variances for white-
collar defendants.
Two hide-behind strategies prevailed in the post-Booker era, one utilized by most
circuits and the other specific to the Eleventh Circuit. In the first hide-behind strategy, an
appellate court simply endorsed the district court‘s application of the § 3553(a) factors, as
if blindly signing a check, without a scrupulous examination of the factors that made the
upward variance reasonable.226 The second hide-behind strategy, employed primarily by
the Eleventh Circuit, involves justifying an upward variance by mentioning that the
sentence is below the statutory maximum.227 Because appellate courts uphold most
upward variances for white-collar criminals,228 and because of the hide-behind strategies,
this Note argues that the circuit courts have adopted a functional presumption of
reasonableness for upward variances imposed on white-collar criminals.
1. Hiding Behind the § 3553(a) Factors
When a district court sentences a white-collar defendant, Booker requires it to
correctly calculate the Guidelines range and adequately weigh the § 3553(a) factors.229
Appellate review, of course, is the mechanism to ensure that district courts sufficiently
fulfill this requirement. When district courts issue variances to white-collar criminals,
appellate courts should devote extra care when reviewing the district court‘s treatment of
the § 3553(a) factors; indeed, for downward variances, the circuit courts have concluded
that ―[t]he further the district court varies from the presumptively reasonable guidelines
range, the more compelling the justification based on the § 3553(a) factors must be.‖230
224. This is not for lack of opportunity. The circuit courts have reviewed at least 44 upward variances
issued to white-collar defendants in the three years since Booker. See infra Appendix B for a list of circuit court
cases involving upward variances.
225. Of the 44 cases examined in Appendix B, infra, all but three were upheld as reasonable. Of those
three, one of the reviewing courts indicated that the upward variance will likely be upheld after remand if the
district court provides further explanation. See United States v. Sindima, 488 F.3d 81, 88 (2d Cir. 2007)
(concluding that the district court may impose the same upward variance so long as it is accompanied by a
sufficient statement of reasons). In another of the three cases, the Third Circuit reversed the sentence because
the district court judge relied on statutorily prohibited reasons. United States v. Manzella, 475 F.3d 152, 161 (3d
Cir. 2007).
226. See infra Part III.B.1 for a discussion of this hide-behind strategy.
227. See infra Part III.B.2 for a discussion of this hide-behind strategy.
228. See infra Part III.B.1.
229. See supra note 52 and accompanying text.
230. United States v. Ture, 450 F.3d 352, 357 (8th Cir. 2006) (citing United States v. Bryant, 446 F.3d
1317, 1319 (8th Cir. 2006)). However, this ―proportional review‖ method is no longer viable under Gall;
appellate court judges can no longer require a sliding scale for justifying variances. See Gall v. United States,
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Inexplicably, however, the circuit courts did not apply this requirement of greater
justification to upward variances; indeed, this Note argues that regardless of whether
courts acknowledged the requirement, in practice courts did not implement the
requirement.231 Rather, they approached the district court‘s analysis as if it were a simple
checklist, essentially making sure the district court met the technical requirements of
Booker. In effect, the circuit courts ―hid behind‖ the § 3553(a) factors.
Examples of this hide-behind strategy are widespread among the circuits. In United
States v. Harrison,232 the Second Circuit reviewed an upward variance issued to a
defendant who pled guilty to aiding and abetting identity fraud. 233 Even though the
district court sentenced the defendant more than four times above the top of the
Guidelines range,234 the only justification the Second Circuit provided was that ―the
district court considered all of the sentencing factors and adequately explained its
reasoning for imposing a non-Guidelines sentence.‖235
The Third Circuit, in United States v. Flemming,236 provided an equally feeble
explanation when it upheld an upward variance imposed on a defendant who was
convicted of conspiracy to commit wire fraud and program fraud. 237 In analyzing the
district court‘s explanation, the Third Circuit merely gave a rote recitation of the Booker
requirements.238 The court also noted that ―[a]lthough it could have been more thorough,
the District Judge provided a sufficient statement . . . for imposing the above-Guidelines
sentence.‖239 By refusing to engage in a meaningful analysis of the precise factors that
made the upward variance reasonable, the Third Circuit was hiding behind the § 3553(a)
factors.
The strategy of hiding behind the § 3553(a) factors is not unique to the Second and
Third Circuits.240 Indeed, the sheer pervasiveness of the strategy proves that the circuit
128 S. Ct. 586, 591 (2007) (holding that a ―substantial variance‖ need not be ―justified by extraordinary
circumstances‖).
231. But see United States v. King, 454 F.3d 187, 195 (3d Cir. 2006) (noting that the further a sentence
deviates from the Guidelines, ―‗the more compelling the judge‘s reasons must be‘‖ (quoting United States v.
Jordan, 435 F.3d 693, 696–97 (7th Cir. 2006))). Of course, some courts do discuss, in depth, the district court‘s
reasoning. See, e.g., United States v. Korson, 243 F. App‘x 141, 143–46 (6th Cir. 2007) (providing a detailed
analysis of the district court‘s decision). These discussions inevitably lead to a finding that the district court
adequately balanced the § 3553(a) factors; rarely is the district court‘s reasoning challenged. But see United
States v. Tucker, 473 F.3d 556, 563–64 (4th Cir. 2007) (noting that the district court did not provide an
adequate explanation for a 480% upward variance).
232. United States v. Harrison, 175 F. App‘x 386 (2d Cir. 2006).
233. Id. at 387.
234. The sentence was 27 months compared to a Guidelines range of 0–6 months. Id.
235. Id. at 388.
236. United States v. Flemming, 223 F. App‘x 117, 119 (3d Cir. 2007).
237. Id.
238. See id. at 127 (noting that the district court properly calculated the Guidelines range, expressly listed
the sentencing factors, and applied them to the circumstances of the case).
239. Id.
240. See, e.g., United States v. Levine, 477 F.3d 596, 607 (8th Cir. 2007) (concluding that the upward
variance was reasonable because the district court gave weight to a § 3553(a) factor); United States v. McClung,
483 F.3d 273, 277 (4th Cir. 2007) (concluding that the district court ―sufficiently articulated the compelling
reasons justifying the variance sentence imposed‖ in relation to the § 3553(a) factors); United States v. Zaky,
224 F. App‘x 483, 487 (6th Cir. 2007) (noting that the district court reviewed the § 3553(a) factors and applied
them to the circumstances of the cases); United States v. Obidi, 221 F. App‘x 555, 556 (9th Cir. 2007) (noting
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courts intended to treat upward variances for white-collar criminals with a high degree of
deference. This is evidenced by (a) their apparent unwillingness to provide warranted
justification for affirming upward variances and (b) the incredibly high number of
affirmed upward variances.241 The circuit courts functionally presumed reasonableness
for these sentences and, this Note contends, will therefore continue to issue the district
courts a carte blanche to affirm upward variances for white-collar criminals.
While Gall requires ―due deference‖ to district court treatment of the § 3553(a)
factors,242 it does not authorize appellate court judges to roll over and play dead when
reviewing a white-collar defendant‘s upward variance. Appellate court judges must still
engage in an analysis of the procedural and substantive reasonableness of the district
court‘s treatment of the Guidelines and § 3553(a) factors.243 This analysis includes
―tak[ing] into account the totality of the circumstances, including the extent of any
variance from the Guidelines range.‖ 244 Implicit in these requirements is the need for
circuit courts to meaningfully scrutinize a district court‘s analysis. Unfortunately, because
circuit courts exercise such a high degree of deference towards upward variances, which
is at least superficially consistent with Gall, this Note concludes that circuit courts are not
explicitly barred from hiding behind the § 3553(a) factors.
2. The Eleventh Circuit: Hiding Behind Statutory Maximums
The Eleventh Circuit fashioned its own ―smoke and mirrors‖ hide-behind strategy:
the circuit argued that an upward variance sentence for a white-collar criminal was
reasonable because the sentence was less than the statutory maximum. 245 In United
States v. Garner,246 the district court sentenced the defendant, who pled guilty to mail
fraud, to 60 months imprisonment—19 months above the top of the Guidelines range. 247
In affirming the sentence, the Eleventh Circuit first hid behind the § 3553(a) factors 248
and then noted that the sentence was a ―mere fraction‖ of the statutory maximum. 249 In
United States v. Reddick,250 the Eleventh Circuit again invoked the statutory-maximum
rationale in affirming a dramatic upward variance. 251 After acknowledging that the
district court considered the § 3553(a) factors, the Eleventh Circuit noted that the 240-
that the district court was thorough in its treatment of the sentencing factors); United States v. Zimmer, 199 F.
App‘x 555, 560–61 (7th Cir. 2006) (affirming a 48 month sentence—compared to a Guidelines range of 30–37
months—after finding that the district court considered the § 3553(a) factors); United States v. Shanklin, 193 F.
App‘x 384, 388–89 (5th Cir. 2006) (noting that the district court‘s considerations were proper, as they related to
the § 3553(a) factors); United States v. Patel, 178 F. App‘x 948, 949 (11th Cir. 2006) (noting that the district
court correctly calculated the Guidelines range and considered the § 3553(a) factors).
241. Appendix B, infra, demonstrates the sheer number of affirmed upward variances.
242. Gall v. United States, 128 S. Ct. 586, 597 (2007).
243. Id.
244. Id.
245. See, e.g., infra text accompanying note 249.
246. United States v. Garner, 152 F. App‘x 775 (11th Cir. 2005).
247. Id. at 776.
248. The Eleventh Circuit noted that the district court ―considered the applicable Guidelines range and
expressly stated that it had reviewed and considered fully the factors set forth in § 3553(a).‖ Id. at 777.
249. Id.
250. United States v. Reddick, 185 F. App‘x 817 (11th Cir. 2007).
251. Id. at 818 (affirming a 240 month sentence from a Guidelines range of 110–137 months).
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month sentence was five years less than the statutory maximum. 252 The Eleventh Circuit
has hid behind the statutory maximum on at least three other occasions. 253
The statutory maximum rationale is not an adequate measure of reasonableness—it
merely conveys that the district court could have imposed a more severe sentence, which
does not make the initial upward variance reasonable. A less harsh sentence is not
reasonable simply because a harsher penalty was possible. Furthermore, these cases show
that the Eleventh Circuit typically hid behind the statutory maximum rationale only after
first hiding behind the § 3553(a) factors. 254 A bad argument plus another bad argument
does not equal a good argument. And, perhaps most importantly, this Note argues that the
statutory maximum rationale is explicitly forbidden by Gall.255 The Court in Gall noted
that ―quantifying the variance as a certain percentage of the maximum . . . prison
sentence‖ gives no weight to the possibility that a shorter sentence might suffice. 256 In
short, the Eleventh Circuit avoided engaging in a meaningful analysis of reasonableness
for upward variances through specious reliance on the now-forbidden statutory maximum
rationale.
3. An Unclear Picture for Upward Variances
The circuit courts‘ practice of employing hide-behind strategies for white-collar
criminals‘ upward variances led to ambiguous application of the reasonableness doctrine.
While a white-collar defendant may be certain of the result of appellate review of her
upward variance (affirmation), she will be left wondering why. When appellate courts
simply endorse district courts‘ treatment of the § 3553(a) factors, as is arguably allowed
by Gall, no sharply defined parameters of reasonableness emerge from appellate case law
for upward variances. Instead, what is left is a functional presumption of reasonableness;
as long as the district court goes through the technical requirements of Booker in
imposing an upward variance on a white-collar criminal—i.e., correctly calculating the
Guidelines range and weighing the § 3553(a) factors—the reviewing court in effect
presumes the sentence is reasonable.
IV. RECOMMENDATION
Circuit courts should apply the doctrine of reasonableness even-handedly to both
upward and downward variances. The disparate application of the doctrine has led to a
result the Sentencing Commission admonishes: disparity in white-collar sentencing.257
252. Id. at 822.
253. See United States v. Twilley, 225 F. App‘x 817, 821 (11th Cir. 2007) (noting that the 30 month
sentence was well below the 240 month maximum); United States v. Reeves, 171 F. App‘x 275, 278 (11th Cir.
2006) (arguing that the defendant‘s upward variance was only one-third of the statutory maximum); United
States v. Simmerer, 156 F. App‘x 124, 129 (11th Cir. 2005) (noting that the defendant‘s upward variance—60
months from a Guidelines range of 27–33 months—was ―only one-sixth the length of the 30-year statutory
maximum‖).
254. See supra note 248 and accompanying text.
255. Gall v. United States, 128 S. Ct. 586, 595 (2007) (forbidding an appellate court judge from applying a
―rigid mathematical formula‖); see also id. at 591 (defining ―rigid mathematical formula‖ as ―quantifying the
variance as a certain percentage‖); supra note 72 and accompanying text.
256. Gall, 128 S. Ct. at 595.
257. See supra note 22 and accompanying text. A cursory perusal of Appendices A and B, infra, also
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Accordingly, this Note recommends the following: (1) circuit courts should apply the
same level of scrutiny to upward variances as they do to downward variances, or
alternatively, the Sentencing Commission should raise the Guidelines ranges for white-
collar crimes so they are closer to the statutory maximums; and (2) circuit courts should
eliminate hide-behind strategies.
A. Well-Defined Standards for Upward Variances
While the circuit courts obviously cannot adopt the exact same qualitative standards
for upward variances that they have for downward variances—e.g., a prison/no prison
distinction would be inappropriate for upward variances and Gall now forbids the use of
extraordinary circumstances—there are other possibilities. Specifically, circuit courts
should adopt an upward variance percentage cut-off line: that is, the circuits should hold
as unreasonable upward variances that are more than 100% above the top of the
Guidelines range for a given offense. Currently, the circuit courts almost unequivocally
find 100% downward variances unreasonable,258 while it is not unusual for circuit courts
to uphold a 300% upward variance as reasonable. 259 Adopting a percentage-based
approach would go far to eliminate such disparate results.
To facilitate this strategy, this Note recommends that the U.S. Supreme Court
reconsider the portion of Gall that forbids consideration of the percentage of the variance
as a justification for determining reasonableness. 260 Despite the fact that the ―percentage‖
approach facilitates the statutory maximum strategy, this Note contends that appellate
court judges should be free to observe that a sentence of a given percentage above or
below the Guidelines range perpetuates disparity. This concededly mathematical
approach is, unfortunately, the only way to measure objectively whether sentence
practices are yielding disparate results for white-collar defendants. Moreover, this
approach would go far to dispel the notion that upward variances are presumptively
reasonable by forcing the circuit courts to rein in drastically high upward variances.
B. Raise the Guidelines Ranges for White-Collar Crimes
If the circuit courts choose not to adopt any meaningful standards of reasonableness
for upward variances, then the Commission should take matters into its own hands and
raise the Guidelines ranges closer to the statutory maximums for white-collar crimes.
This will serve two purposes: (1) eliminating the number of upward variances that are
drastically above the top of the Guidelines range (since courts may find the longer
Guidelines sentences more appropriate to meet the § 3553(a) needs) and (2) discouraging
circuit courts from awarding white-collar criminals probation or supervised release (since
they would have to depart even more dramatically to do so). While some white-collar
defendants will have to serve longer sentences if the Commission raises the Guidelines
demonstrates this disparity.
258. See supra Part III.A.1.a (arguing that the circuits almost always reverse sentences in which the district
court awarded probation or supervised release). For a look at cases in which the reviewing court found 100%
downward variances unreasonable, see infra Appendix A.
259. See, e.g., United States v. Still, 249 F. App‘x 30, 37 (10th Cir. 2007) (declining to apply a percentage-
based approach).
260. Gall, 128 S. Ct. at 595.
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ranges, this strategy would best fulfill the goal of ―avoid[ing] unwarranted sentence
disparities among defendants with similar records who have been found guilty of similar
conduct.‖261
C. Eliminate Hide-Behind Strategies
Lastly, this Note recommends that circuit courts should cease hiding behind the
§ 3553(a) factors and blindly endorsing district courts‘ application of the Booker
requirements without conducting a meaningful discussion of the upward parameters of
reasonableness. The circuit courts set a high bar in creating the ―well-oiled machine‖ of
reasonableness for downward variances, and it is time to raise the bar for upward
variances. While many of the parameters for downward variances are no longer valid
after Gall, appellate courts will likely continue to look at how the district courts are
applying the § 3553(a) factors for downward variances with a critical (though deferential)
eye. Circuit courts should follow suit when examining upward variances for
reasonableness.
V. CONCLUSION
Circuit courts do not apply the doctrine of reasonableness uniformly to white-collar
criminal sentence variances. The circuit courts have, inexplicably, created divergent
standards for downward and upward variances in the years between Booker and Gall. For
downward variances, the focus was on qualitative standards, which ensured that district
courts would not allow sympathetic defendants to buy their way out of prison. These
standards also operated to give district courts a sense of restrained discretion to consider
extraordinary circumstances when fashioning an appropriate sentence. The result was a
very real sense of balance: these well-crafted standards ensured that courts considered the
true policy objectives of § 3553(a). Unfortunately, the Court‘s holding in Gall unraveled
much of the circuit courts‘ work in shaping the parameters of reasonableness for
downward variances. However, appellate courts are likely to remain vigilant in ensuring
that district courts do not abuse their discretion in sentencing white-collar criminals
unreasonably. Many of the mechanisms in place, such as the two-prong test for family
situations, will still assist the appellate court judges in their analyses.
The upward variance standards, on the other hand, have amounted to a carte blanche
to district courts. This unbridled freedom inevitably results in the kind of sentencing
disparity the Sentencing Commission seeks to avoid. Accordingly, the circuit courts need
to balance the reasonableness standards for downward and upward variances to bring a
sense of equilibrium to the reasonableness landscape.
261. 18 U.S.C. § 3553(a)(6) (2000 & Supp. 2003).
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APPENDIX A
This Appendix consists of cases in which district courts awarded downward
variances.
Case United States v. Tom, 504 F.3d 89 (1st Cir. 2007), vacated, 128 S.
Ct. 1132 (2008), remanded to 275 F. App‘x 23 (1st Cir. 2008).
Crime/Sentence Insider trading. Sentenced to probation compared to a 37–46 month range.
Disposition Reversed
District Court The district court wanted to avoid disparity (between defendant and the
Reasoning other, more culpable, party), Tom was still subject to punishment by the
SEC, and his family problem required him to be at home.
Appellate Court The district court did not adequately consider the seriousness of the offense,
Reasoning the need for general deterrence of white-collar crimes, and the need for some
imprisonment.
Case United States v. Taylor, 499 F.3d 94 (1st Cir. 2007), vacated, 128 S.
Ct. 8783 (2008), remanded to 532 F.3d 68 (1st Cir. 2008).
Crime/Sentence Aiding and assisting in preparation of false tax returns. Sentenced to
supervised release and probation compared to a 30–37 month range.
Disposition Reversed
District Court The district court considered defendant‘s extraordinary community
Reasoning involvement and history, and imposed an adequate sentence.
Appellate Court Although the district court gave proper weight to the Guidelines, the factors
Reasoning do not justify such a radical departure from the Guidelines. A nonjail
sentence was unreasonable.
Case United States v. D‟Amico, 496 F.3d 95 (1st Cir. 2007), vacated, 128
S. Ct. 1239 (2008).
Crime/Sentence Extortion under color of official right in violation of the Hobbs Act and
making false statements to the FBI. Sentenced to 4 months compared to a
31–41 range.
Disposition Reversed
District Court The district court relied heavily on the defendant‘s good works as a city
Reasoning councilor and the fact that he has already sustained a heavy loss.
Appellate Court The court reviews below-Guidelines sentences on a sliding scale: the greater
Reasoning the variance, the more explanation is required. The court relied too heavily
on defendant‘s good works. White-collar criminals should not be treated
more leniently because of social status.
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Case United States v. Thurston, 456 F.3d 211 (1st Cir. 2006), vacated, 128
S. Ct. 854 (2008).
Crime/Sentence Conspiracy to defraud. Sentenced to 3 months compared to a 60 month
statutory maximum (Guidelines range is 63–78 months).
Disposition Reversed
District Court The district court found that there was a disparity between the defendant and
Reasoning prime architect (probation). Any prison sentence is enough to deter potential
white-collar criminals.
Appellate Court Using a sliding scale, the court held that 95% departure was unreasonable.
Reasoning That incarceration may deter white-collar criminals does not justify such
dramatic downward variances.
Case United States v. Hawkins, 228 F. App‘x 107 (2d Cir. 2007).
Crime/Sentence Conspiracy to commit health care fraud and mail fraud. Sentenced to
probation compared to a 12–18 month range.
Disposition Affirmed
District Court The district court considered all of the § 3553(a) factors and found her
Reasoning extraordinary rehabilitation warranted probation.
Appellate Court The district court accurately calculated the Guidelines range. The district
Reasoning court also recognized the distinction between ―extraordinary rehabilitation‖
and considering rehabilitation as a factor.
Case United States v. Trupin, 475 F.3d 71 (2d Cir. 2007), vacated, 128 S.
Ct. 862 (2008), remanded to No. 05-2934-CR, 2008 WL 4159198
(2d Cir. Sept. 10, 2008).
Crime/Sentence Tax evasion. Sentenced to 7 months compared to a 41–51 month range.
Disposition Reversed
District Court The district court sentenced below the Guidelines because of defendant‘s
Reasoning health and because it has a problem giving prison sentences. ―A few weeks
in jail for most of us would be a very, very significant punishment.‖
Appellate Court This was an unreasonable sentence because the court unjustifiably relied on:
Reasoning § 3553(a) factors (e.g., age, wife‘s health), policy concerns (concern over
giving him the prison sentence), and improper factors.
Case United States v. Kane, 452 F.3d 140 (2d Cir. 2006).
Crime/Sentence Equity skimming. Sentenced to 24 months compared to 30–37 month range.
Disposition Affirmed
District Court The district court rejected defendant‘s request for probation. The judge
Reasoning weighed letters from defendant‘s friends/family, books the defendant
published (which negated his honesty), and other sentencing factors.
Appellate Court In spite of the defendant‘s advanced age, poor health, and charitable works,
Reasoning the district court‘s sentence of prison was reasonable. The district court
considered the relevant sentencing factors ―in a careful and reasoned
fashion,‖ and understood the applicable rules.
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Case United States v. Ebbers, 458 F.3d 110 (2d Cir. 2006).
Crime/Sentence Securities fraud. Sentenced to 25 years compared to a 30–life range.
Disposition Affirmed
District Court The district court calculated the Guidelines range and sentenced just below.
Reasoning
Appellate Court While this is a long sentence for a white-collar crime, it is not unreasonable.
Reasoning Given Congress‘s policy decisions on sentences for fraud, it is harsh but not
unreasonable.
Case United States v. Rattoballi, 452 F.3d 127 (2d Cir. 2006).
Crime/Sentence Conspiracy to rig bids and mail fraud. Sentenced to probation compared to a
27–33 month range.
Disposition Reversed
District Court The district court had a serious problem with giving a prison sentence,
Reasoning especially since the defendant did not force the case to go to trial. In
addition, the defendant‘s business was severely harmed.
Appellate Court The sentence is unreasonable when compared with the § 3553(a) factors.
Reasoning The fact that the defendant admitted wrongdoing and that his company
would suffer harm were not valid reasons.
Case United States v. Greenidge, 495 F.3d 85 (3d Cir. 2007).
Crime/Sentence Bank fraud and money laundering. Sentenced to 41 months compared to a
78–97 range.
Disposition Affirmed
District Court The district court‘s reasons for the sentence were the defendant‘s essential
Reasoning role, the large amount of money involved, and the ―deliberate thought‖
behind his obstruction of justice.
Appellate Court The district court, in sentencing 47% less than the Guidelines range,
Reasoning articulated the § 3553(a) factors and reasonably applied them. The sentence
avoids unwanted disparities.
Case United States v. Tomko, 498 F.3d 157 (3d Cir. 2007), vacated, 513
F.3d 360 (3d Cir. 2008).
Crime/Sentence Tax evasion. Sentenced to probation, $250,000 fine, and in-house alcohol
abuse treatment compared to a 12–18 month range.
Disposition Reversed
District Court The district court based the 100% variance on the defendant‘s extensive
Reasoning charitable works, negligible criminal history, record of employment, and
support in the community.
Appellate Court Probation does not reflect seriousness of the offense, promote respect for the
Reasoning law, provide just punishment, or provide adequate deterrence. Charitable
works do not justify such an extraordinary variance.
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Case United States v. Baucom, 486 F.3d 822 (4th Cir. 2007), vacated,
Davis v. United States, 128 S. Ct. 870 (2008).
Crime/Sentence Conspiracy to defraud the United States and willful failure to file tax returns.
Sentenced to probation compared to a 21–27 month range.
Disposition Reversed
District Court The district court‘s reasons for the sentence were the defendant‘s
Reasoning ―extraordinary charitable works,‖ his efforts to become current on tax
liability, and the fact that his employees would suffer.
Appellate Court The district court acted unreasonably in not considering deterrence, and the
Reasoning sentence does not reflect seriousness or just punishment. The court was
troubled by reliance on the defendant‘s charitable works.
Case United States v. Davis, 458 F.3d 491 (6th Cir. 2006), vacated, 128 S.
Ct. 856 (2008).
Crime/Sentence Two counts of bank fraud. Sentenced to one day for each count, compared to
a 30–37 month range.
Disposition Reversed
District Court The district court issued two one-day sentences based on the defendant‘s age
Reasoning and the fact that there was a 14-year gap between commission of the crime
and sentencing.
Appellate Court A 99.89% variance was not warranted. There was nothing extraordinary
Reasoning enough to justify such an extreme variance.
Case United States v. Simmons, 501 F.3d 620 (6th Cir. 2007).
Crime/Sentence Health care fraud. Sentenced to 23 months compared to a 27–33 month
range.
Disposition Affirmed
District Court No specific district court reasons were mentioned.
Reasoning
Appellate Court While the sentence may have been too lenient, the district court weighed
Reasoning sentencing factors and imposed a reasonable sentence.
Case United States v. Kosinski, 480 F.3d 769 (6th Cir. 2007).
Crime/Sentence Tax fraud. Sentenced to probation compared to a 6–12 month range.
Disposition Reversed
District Court The offense level would have been higher had the district court taken the tax
Reasoning loss into account. However, it felt compelled by Booker to not take tax loss
into account since the jury did not make tax amount findings.
Appellate Court The district court failed to take into consideration the tax loss amount, which
Reasoning it may do if: (1) it does not consider itself required to do so and (2) the
results are based on preponderance of the evidence.
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Case United States v. Repking, 467 F.3d 1091 (7th Cir. 2006).
Crime/Sentence Making false entries in bank records and filing false tax returns. Sentenced
to one day/probation compared to a 41–51 month range.
Disposition Reversed
District Court The district court‘s reasons for the sentence were that the defendant would
Reasoning be stigmatized more than most, the lack of deterrence reasons for
incarcerating him, and the defendant‘s restitution.
Appellate Court The sentence was unreasonably low, placing too much emphasis on
Reasoning restitution and charitable works (which were not extraordinary).
Case United States v. Wallace, 458 F.3d 606 (7th Cir. 2006), vacated, 128
S. Ct. 856 (2008).
Crime/Sentence Wire fraud. Sentenced to probation compared to a 24–30 month range.
Disposition Reversed
District Court The district court thought the Guidelines range was ―a bit much‖ in light of
Reasoning the sentencing factors. The judge noted the defendant‘s ―extraordinary
remorse,‖ and the fact that his rehabilitation demonstrates that he does not
need to be deterred.
Appellate Court ―In the end, it is the fact that the court chose to eliminate any meaningful
Reasoning incarceration‖ that made this so extraordinary. Extraordinary remorse was
neither extraordinary nor sufficient.
Case United States v. Filipiak, 466 F.3d 582 (7th Cir. 2006).
Crime/Sentence Federal bank fraud. Sentenced to 24 months compared to a 33–41 month
range.
Disposition Affirmed
District Court The district court calculated the Guidelines range, and after considering the
Reasoning § 3553(a) factors.
Appellate Court A further departure would not have been warranted because there was
Reasoning nothing extraordinary about defendant‘s restitution. The court hinted that it
would have reversed the sentence if it was any lower.
Case United States v. Coughlin, 500 F.3d 813 (8th Cir. 2007).
Crime/Sentence Aiding and abetting wire fraud and filing false tax returns. Sentenced to
probation/home detention compared to a 27–33 month range.
Disposition Reversed
District Court The defendant had many medical ailments, thus home detection would be in
Reasoning the defendant‘s best interests. The court also considered the defendant‘s
family/community ties, his charitable/employment-related good works, and
the defendant‘s ―fall from grace.‖
Appellate Court The district court failed to consider the factors in the context of § 3553(a),
Reasoning including: seriousness of offense, respect for law, just punishment, adequate
deterrence, or the aggravating nature of the defendant‘s conduct on family
and community.
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Case United States v. Carlson, 498 F.3d 761 (8th Cir. 2007).
Crime/Sentence Willfully failing to account for and pay trust fund taxes. Sentenced to home
confinement/probation/1000 hours community service compared to an 18–
24 month range.
Disposition Reversed
District Court The sentence is no more severe than necessary and is supported by
Reasoning extraordinary circumstances: significant record of charitable activities,
accepted responsibility, ―exceptional effort‖ to repay money, damage to
business/family, and no desire to defraud the government (rather, he did it to
resolve a financial crisis).
Appellate Court When no prison sentence is given, ―extraordinary justification‖ is required.
Reasoning This variance was unreasonable because the district court failed to take into
account certain § 3553(a) factors and failed to articulate ―sufficiently
compelling circumstances to justify such a large variance.‖
Case United States v. Worthing, 434 F.3d 1046 (8th Cir. 2006).
Crime/Sentence Conspiracy, interstate transportation of funds obtained by fraud, wire fraud,
mail fraud, and money laundering. Sentenced to 120 months compared to a
151–88 month range.
Disposition Affirmed
District Court The district court considered the Guidelines, but decided, in light of the
Reasoning evidence and circumstances, that a sentence just below the Guidelines was
appropriate.
Appellate Court The sentence was not unreasonable in light of the § 3553(a) factors.
Reasoning
Case United States v. Givens, 443 F.3d 642 (8th Cir. 2006), remanded to
No. 8:04CF478, 2006 WL 3390752 (D. Neb. Nov. 22, 2006).
Crime/Sentence Bank fraud. Sentenced to time served (even though he served no time),
supervised release, 12 months of house arrest, community service, and
restitution compared to a 24–30 month range.
Disposition Reversed
District Court The district court considered ―extraordinary post-offense rehabilitation‖ and
Reasoning other factors that take this out of the ―heartland‖ of fraud cases (social
concerns of agriculture communities, etc.).
Appellate Court The district court abused its discretion in departing so drastically from the
Reasoning Guidelines. The defendant‘s rehabilitation was not that extraordinary. The
district court gave too much weight to history and characteristics and not
enough to the need to avoid disparity and the need to give a sentence that
reflects the seriousness of the crime.
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Case United States v. Wadena, 470 F.3d 735 (8th Cir. 2007).
Crime/Sentence Conspiracy to commit mail fraud. Sentenced to probation compared to an
18–25 month range.
Disposition Affirmed
District Court The district court varied from the Guidelines because the defendant has
Reasoning severe chronic health problems, he is the primary caretaker of his son, who
has Fetal Alcohol Syndrome, and other § 3553(a) factors.
Appellate Court There is no blanket rule that all downward variances are unreasonable. In
Reasoning comparison to Ture, here the medical problems were more severe. The
defendant in Ture was not the primary caregiver of someone. Extreme
medical needs justify no prison. Also, the district court may consider this
extreme family situation.
Case United States v. Pool, 474 F.3d 1127 (8th Cir. 2007).
Crime/Sentence Conspiracy to commit bribery and money laundering, aiding and abetting
bribery and money laundering. Sentenced to probation compared to a 33–41
month range.
Disposition Reversed
District Court The district court gave a sentence of probation to preserve the defendant‘s
Reasoning business and the jobs of his employees, to allow him to continue his
charitable works, and because of his medical problems.
Appellate Court The district court‘s reasoning was not reasonable. It is not extraordinary in
Reasoning white-collar crime for business or employees to suffer. The district court
gave too much weight to the defendant‘s medical problem, and not enough
to other factors.
Case United States v. Ture, 450 F.3d 352 (8th Cir. 2006).
Crime/Sentence Tax evasion. Sentenced to probation compared to a 12–18 month range.
Disposition Reversed
District Court Taking the Guidelines and § 3553(a) factors into consideration, probation
Reasoning and community service are all that is necessary. The major reasons were:
age, heart condition, and remorse.
Appellate Court This 100% downward variance was unreasonable because it was not
Reasoning supported by extraordinary circumstances. The sentence should have
included imprisonment. The court did not place enough emphasis on
avoiding disparity. It was necessary to deter tax evaders.
Case United States v. O‟Neill, 190 F. App‘x 577 (9th Cir. 2006).
Crime/Sentence Wire fraud and securities fraud. Sentenced to 24 months compared to a 37–
46 month range.
Disposition Affirmed
District Court The district court determined that a Guidelines sentence was too long, but
Reasoning there needed to be some incarceration.
Appellate Court The district court ―thoughtfully discussed‖ the relevant factors and explained
Reasoning why a 24-month sentence was reasonable.
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Case United States v. Morris, No. 05-50220, 2007 WL 684006 (9th Cir.
Mar. 7, 2007).
Crime/Sentence Mail fraud, wire fraud, securities fraud, and money laundering. Sentenced to
148 months compared to a 235–293 range.
Disposition Affirmed
District Court The district court found the Guidelines range unreasonable. The district
Reasoning court took personal circumstances into account. It balanced the aggravating
nature and scope of the defendant‘s offense conduct with mitigating aspects
of his personal circumstances (i.e., health).
Appellate Court In balancing the § 3553(a) factors, the district court reasonably determined
Reasoning that a 148-month sentence was appropriate.
Case United States v. Khan, 193 F. App‘x 700 (9th Cir. 2006).
Crime/Sentence Conspiracy, filing false quarterly reports with the SEC, wire fraud, money
laundering. Sentenced to 24 months compared to a 57–71 month range.
Disposition Affirmed
District Court The district court noted that the defendant‘s age, health, and lack of prior
Reasoning criminal convictions were the primary reasons for the variance.
Appellate Court The district court acted within its discretion because there was evidence to
Reasoning support the district court‘s reasons.
Case United States v. Hutson, 183 F. App‘x 675 (9th Cir. 2006).
Crime/Sentence Mail fraud and wire fraud. Sentenced to 180 months compared to a 210–262
month range.
Disposition Affirmed
District Court The district court considered the nature of offense, history and
Reasoning characteristics, and the need to deter others from committing fraud.
Appellate Court The district court ―explicitly provided a reasoned evaluation of the
Reasoning sentencing factors.‖ The sentence is not disproportionately high. General
deterrence is an appropriate consideration.
Case United States v. Franklin, 178 F. App‘x 776 (10th Cir. 2006).
Crime/Sentence Fraudulent use of credit card, aiding and abetting. Sentenced to 18 months
compared to a 21–27 month range.
Disposition Affirmed
District Court No specific district court reasons were mentioned (except that the district
Reasoning court declined to award any downward departures).
Appellate Court The district court‘s sentence was both ―reasoned and reasonable.‖ The court
Reasoning thoroughly considered the § 3553(a) factors.
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Case United States v. Livesay, 484 F.3d 1324 (11th Cir. 2007), vacated,
128 S. Ct. 872 (2008).
Crime/Sentence Wire fraud, securities fraud, and falsification of financial information.
Sentenced to probation compared to a 6–12 month range (after 18-level
downward departure).
Disposition Reversed
District Court The district court recited § 3553(a) factors, noting the need to avoid
Reasoning unwarranted disparity before determining that the defendant‘s timely
assistance warranted an ―exceptional departure.‖
Appellate Court The sentence was ―utterly disproportionate‖ to the seriousness of the crimes
Reasoning in light of § 3553(a) factors, and was therefore unreasonable.
Case United States v. Montgomery, 165 F. App‘x 840 (11th Cir. 2006).
Crime/Sentence Bank fraud. Sentenced to 8 months compared to a 30–37 month range.
Disposition Affirmed
District Court The district court considered the seriousness of the offense (which it thought
Reasoning the Guidelines overstated), adequate deterrence, the order of restitution
payments, the fact that the defendant is unlikely to commit further crimes,
and the defendant‘s history of mental illness.
Appellate Court The district court considered several of the § 3553(a) factors. A court does
Reasoning not need to discuss every factor, but must have indicated on the record that it
adequately considered the appropriate factors.
Case United States v. Anderson, No. 07-11848, 2007 WL 3036868 (11th
Cir. Oct. 19, 2007), vacated and superseded on reh‟g, 267 F. App‘x
847 (11th Cir. 2008).
Crime/Sentence Insider trading. Sentenced to probation compared to an 18–24 month range.
Disposition Reversed
District Court The district court relied on the defendant‘s settlement of a civil action with
Reasoning the SEC, and found there was no need to deter him from committing another
crime (he had been ―taught a lesson‖).
Appellate Court There was nothing extraordinary about the settlement. Also, court failed to
Reasoning make ―exceptional consideration‖ regarding need to deter white-collar
criminals. Thus, sentence was unreasonable.
Case United States v. Bras, 483 F.3d 103 (D.C. Cir. 2007)
Crime/Sentence Conspiracy to commit bribery and highway project fraud. Sentenced to 37
months compared to a 37–46 month range.
Disposition Affirmed
District Court The district court, in looking at § 3553(a) factors, noted the defendant‘s lack
Reasoning of criminal history and his characteristics.
Appellate Court There was no disparity here; the co-conspirators did not hold comparable
Reasoning positions and did not receive the same salary. They also provided substantial
assistance, whereas the defendant did not. The defendant failed to show that
the sentence was unreasonable.
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APPENDIX B
This Appendix consists of cases in which district courts imposed upward variances.
Case United States v. Scherrer, 444 F.3d 91 (1st Cir. 2006).
Crime/Sentence Wire fraud. Sentenced to 96 months compared to a 51–63 month range.
Disposition Affirmed
District Court The district court considered defendant‘s exploitation of personal
Reasoning relationships, the harm caused, misuse of skills, extravagant use of funds
stolen, history of dishonest conduct, deterrence, and nature of crime.
Appellate Court It was reasonable for the district court to judge history and methods. It is
Reasoning hard to judge how much of a variance is necessary, but this was not out of
line with other upward variances for egregious conduct.
Case United States v. Harrison, 175 F. App‘x 386 (2d Cir. 2006).
Crime/Sentence Abetting identity fraud. Sentenced to 27 months compared to a 0–6 month
range.
Disposition Affirmed
District Court The district court found the defendant to be an integral participant in the
Reasoning offense and also abused her position.
Appellate Court The district court considered all of the sentencing factors and adequately
Reasoning explained its reasoning.
Case United States v. Sindima, 488 F.3d 81 (2d Cir. 2007).
Crime/Sentence Mail fraud. Sentenced to 36 months compared to 4–10 month range.
Disposition Reversed
District Court The district court concluded defendant was a danger to community,
Reasoning committed egregious conduct while on probation, showed substantial
disregard for law, and engaged in a calculated pattern of fraudulent activity.
Appellate Court The grounds upon which the district court relied were not ―significantly
Reasoning compelling.‖ The district court relied too heavily on factors already taken
into account by the Guidelines range. The Court of Appeals indicated that it
would uphold this sentence on remand if the district court provided a more
persuasive explanation.
Case United States v. Brown, 207 F. App‘x 133 (3d Cir. 2006).
Crime/Sentence Bank fraud, false use of a Social Security number, and identify theft.
Sentenced to 90 months compared to a 70–87 month range.
Disposition Affirmed
District Court No specific district court reasons were mentioned.
Reasoning
Appellate Court The district court engaged in a thorough analysis of the relevant factors, and
Reasoning applied those factors in a detailed and thoughtful manner. Its decision to
impose a sentence above the Guidelines was ―well-supported, logically
explained, and eminently reasonable.‖
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Case United States v. Flemming, No. 06-5031, 2007 WL 1451126 (3d Cir.
May 17, 2007).
Crime/Sentence Conspiracy to defraud the United States and wire fraud. Sentenced to 24
months compared to a 15–21 month range.
Disposition Affirmed
District Court The district court noted the sentence reflects the seriousness of the crime,
Reasoning will act as a deterrent, and will promote respect for the law.
Appellate Court The court gave no specific reasons for affirming the sentence, other than to
Reasoning acknowledge that the district court properly calculated the Guidelines range,
considered the sentencing factors, and provided a sufficient statement to
justify the above-Guidelines sentence.
Case United States v. Baymon, 236 F. App‘x 852 (3d Cir. 2007).
Crime/Sentence Credit card fraud. Sentenced to 48 months compared to a 15–21 month
range.
Disposition Affirmed
District Court A substantial prison sentence was warranted in light of the fact that the
Reasoning defendant had a history of engaging in credit card fraud.
Appellate Court The district court adequately explained why the above-Guidelines sentence
Reasoning was necessary.
Case United States v. Manzella, 475 F.3d 152 (3d Cir. 2007).
Crime/Sentence Uttering counterfeit security. Sentenced to 30 months compared to a 2–8
month range.
Disposition Reversed
District Court The district court sentenced the defendant to four times the top of the
Reasoning Guidelines range so that the defendant would qualify for the Bureau of
Prisons‘ 500-hour drug treatment program.
Appellate Court Sentencing a defendant for drug rehabilitation is statutorily prohibited. Thus,
Reasoning the sentence was unreasonable since the other reasons given were just ―rote
recitation‖ of the § 3553(a) factors.
Case United States v. Vlado, 240 F. App‘x 990 (3d Cir. 2007).
Crime/Sentence Mail fraud. Sentenced to 24 months compared to an 8–14 month range.
Disposition Affirmed
District Court Insurance fraud has an adverse impact on the general population by
Reasoning increasing premiums and reducing quality of life, and an above-Guidelines
sentence is needed to address the seriousness of the crime and to serve as an
adequate deterrent for such conduct.
Appellate Court The district court imposed a reasonable sentence. An above-Guidelines
Reasoning sentence ―does not give us pause‖ where the court took into account the
§ 3553(a) factors and provided an adequate statement of reasons.
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Case United States v. Ifeoluwa, 238 F. App‘x 895 (3d Cir. 2007).
Crime/Sentence Bank fraud. Sentenced to 75 months compared to a 51–63 month range.
Disposition Affirmed
District Court The district court found that the Guidelines do not reflect the extent of the
Reasoning money involved, criminal history, and large/complex scheme.
Appellate Court The district court unambiguously weighed the § 3553(a) factors, concluding
Reasoning that the Guidelines do not adequately address certain factors.
Case United States v. King, 454 F.3d 187 (3d Cir. 2006).
Crime/Sentence Bank fraud and using a false social security number. Sentenced to 72 months
compared to a 30–37 month range.
Disposition Affirmed
District Court The district court considered the severe harm to the victim, criminal history
Reasoning that was much more severe than reflected in the Guidelines range, and the
lack of remorse or rehabilitation. The sentence was necessary to protect the
public from future crimes by the defendant.
Appellate Court The district court properly calculated the Guidelines range and considered
Reasoning the § 3553(a) factors; that the sentence is almost double the range ―does not
make it per se unreasonable.‖
Case United States v. Tucker, 473 F.3d 556 (4th Cir. 2007).
Crime/Sentence Bank fraud. Sentenced to 144 months compared to a 24–30 month range.
Disposition Reversed
District Court The district court found the most significant factor was the need to protect
Reasoning the public from further crimes of the defendant.
Appellate Court The district court was justified in awarding a variance, but it failed to offer a
Reasoning reason for a 480% variance. The more divergent the sentence, the more
compelling the reasons must be. Although recidivism justifies a variance, it
does not justify such an extreme variance.
Case United States v. McClung, 483 F.3d 273 (4th Cir. 2007).
Crime/Sentence Filing a false tax return and extortion under color of official right. Sentenced
to 84 months compared to a 51–63 month range.
Disposition Affirmed
District Court The defendant exploited the public trust as a public officer. The sentence is
Reasoning necessary to promote respect for the law and to deter.
Appellate Court The court found that the district court‘s reasons were reasonable.
Reasoning
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Case United States v. Thomas, 176 F. App‘x 625 (5th Cir. 2006).
Crime/Sentence Conspiracy to commit wire fraud, wire fraud, etc. Sentenced to 96 months
compared to a 63–78 month range.
Disposition Affirmed
District Court No specific district court reasons were mentioned.
Reasoning
Appellate Court The district court evaluated the Guidelines range and articulated fact-specific
Reasoning reasons for deviating from the range. The district court ―engaged in a
lengthy discussion of the sentencing factors.‖ The seriousness of the offense
and the defendant‘s role in the offense warranted a deviation from the
Guidelines.
Case United States v. Shanklin, 193 F. App‘x 384 (5th Cir. 2006).
Crime/Sentence Tax evasion. Sentenced to 60 months compared to a 15–21 month range.
Disposition Affirmed
District Court The district court based its decision on the defendant‘s intelligence and his
Reasoning deliberate ignorance regarding the payment of taxes, conduct amounting to
perjury, failure to show remorse, not filing tax returns even while under
investigation. A Guidelines sentence would be insufficient for deterrence
purposes.
Appellate Court The defendant failed to show that the district court‘s decision to vary upward
Reasoning from the Guidelines range was unreasonable.
Case United States v. Thomas, 209 F. App‘x 370 (5th Cir. 2006).
Crime/Sentence Mail fraud, money laundering, and making a false statement on a tax return.
Sentenced to 120 months compared to an 84–105 month range.
Disposition Affirmed
District Court The district court awarded an upward variance even after an upward
Reasoning departure. The opinion gives no specific reasons for the variance.
Appellate Court The district court adequately explained its reasons for the sentence, which
Reasoning reflected appropriate concern for the § 3553(a) factors.
Case United States v. Phillpotts, 217 F. App‘x 368 (5th Cir. 2007).
Crime/Sentence Mail fraud. Sentenced to 20 months compared to an 8–14 month range.
Disposition Affirmed
District Court The district court departed from the Guidelines because the defendant left
Reasoning the state without permission and without consulting her parole officer.
Appellate Court The sentence is not inconsistent with the sentencing factors ―and, under all
Reasoning relevant facts and circumstances, it is not unreasonable.‖
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Case United States v. Rush, 236 F. App‘x 944 (5th Cir. 2007).
Crime/Sentence Wire fraud, bank fraud, money laundering, etc. Sentenced to 120 months
compared to an 87–108 month range.
Disposition Affirmed
District Court The defendant has no remorse for the evil he has done, is a serious threat to
Reasoning the public, and has substantially harmed many people.
Appellate Court The sentence was reasonable because the district court judge explained the
Reasoning above-Guidelines sentence using the § 3553(a) factors.
Case United States v. Nelson, 251 F. App‘x 300 (5th Cir. 2007).
Crime/Sentence Wire fraud, engaging in monetary transactions derived from specified
unlawful activity, and aiding and abetting. Sentenced to 300 months
compared to a 188–235 month range.
Disposition Affirmed
District Court No specific district court reasons were mentioned.
Reasoning
Appellate Court The stated reasons for a non-Guidelines sentence were not improper. The
Reasoning § 3553(a) factors support the sentence, which was reasonable.
Case United States v. Thomas, 176 F. App‘x 625 (5th Cir. 2006).
Crime/Sentence Wire fraud. Sentenced to 96 months compared to 63–78 months.
Disposition Affirmed
District Court The district court discussed sentencing factors and concluded that
Reasoning seriousness of the offense and the defendant‘s role warranted the given
sentence.
Appellate Court The district court provided ―permissible reasons‖ for the sentence.
Reasoning
Case United States v. Mauricio, 212 F. App‘x 312 (5th Cir. 2007).
Crime/Sentence Wire fraud. Sentenced to 24 months compared to a 10–16 month range.
Disposition Affirmed
District Court The district court‘s deviation was based on the § 3553(a) factors.
Reasoning
Appellate Court The district court properly weighed the § 3553(a) factors and correctly
Reasoning determined the Guidelines sentence.
Case United States v. Simkanin, 420 F.3d 397 (5th Cir. 2005).
Crime/Sentence Willfully failing to turn over Federal income tax. Sentenced to 84 months
compared to a 41–55 month range.
Disposition Affirmed
District Court The defendant displayed disregard for the laws of the United States and is
Reasoning likely to commit future crimes.
Appellate Court The district court sentencing was reasonable given the weight of all the
Reasoning factors.
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Case United States v. Evans, 225 F. App‘x 878 (5th Cir. 2007).
Crime/Sentence Mail fraud. Sentenced to 36 months compared to 12–18 months.
Disposition Affirmed
District Court The district court considered the nature and circumstances of the offense, the
Reasoning defendant‘s personal history and characteristics, and the need for deterrence
and just punishment.
Appellate Court The deviation from the Guidelines was based on the § 3553(a) factors.
Reasoning
Case United States v. Korson, 243 F. App‘x 141 (6th Cir. 2007).
Crime/Sentence Embezzlement of federal program funds and embezzlement of public funds.
Sentenced to 60 months compared to a 37–46 month range.
Disposition Affirmed
District Court The district court took into account victim impact statements, abuse of
Reasoning public trust, and the need to promote respect for the law.
Appellate Court The district court‘s explanation was well-reasoned and dispassioned. No
Reasoning factors were given undue weight.
Case United States v. Zaky, 224 F. App‘x 483 (6th Cir. 2007).
Crime/Sentence Wire fraud and mail fraud. Sentenced to 30 months compared to a 12–18
month range.
Disposition Affirmed
District Court The district court considered the § 3553(a) factors, including the nature and
Reasoning circumstances of the offense, the insufficiency of the Guidelines to reflect
seriousness, and the defendant‘s unwillingness to be forthcoming.
Appellate Court The district court‘s treatment of the § 3553(a) factors was appropriate,
Reasoning especially considering the need for deterrence. Furthermore, it would be
better for the defendant to be in prison because of his lack of mental health
and resources.
Case United States v. Stone, 244 F. App‘x 720 (6th Cir. 2007).
Crime/Sentence RICO violations and mail fraud. Sentenced to 240 months compared to a
120–150 month range.
Disposition Affirmed
District Court The district court sentenced the defendant to the statutory maximum because
Reasoning it was necessary in light of the seriousness of the crime, the defendant‘s
extensive criminal history, and compelling evidence of his involvement in
arson, burglary, and murder. The district court then addressed the § 3553(a)
factors.
Appellate Court The district court appropriately analyzed the factors and used its discretion.
Reasoning Just because it did not consider every factor in great detail does not mean it
violated its duty. Sentencing outside the Guidelines is not presumptively
unreasonable.
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Case United States v. Brown, 239 F. App‘x 243 (6th Cir. 2007).
Crime/Sentence Credit card fraud. Sentenced to 24 months compared to a 6–12 month range.
Disposition Affirmed
District Court The district court addressed: the length of his conduct, that victim was
Reasoning defendant‘s son, the need for psychological treatment, and letters written by
family members asking for a high sentence.
Appellate Court The court provided compelling reasons in considering defendant‘s
Reasoning characteristics, nature of the victim, duration of offense, and insufficiency of
Guidelines.
Case United States v. Lossia, 193 F. App‘x 432 (6th Cir. 2006).
Crime/Sentence Access device fraud and identity theft. Sentenced to 98 months compared to
a 63–78 month range.
Disposition Affirmed
District Court The defendant had a large number of prior convictions (24), primarily for
Reasoning monetary fraud.
Appellate Court Sentencing above Guidelines in post-Booker world is consistent with
Reasoning sentencing practice and was reasonable here (a likely recidivist).
Case United States v. Vasilakos, 508 F.3d 401 (6th Cir. 2007).
Crime/Sentence Mail fraud, money laundering, and conspiracy to commit mail fraud.
Sentenced to 66 months compared to a 33–41 month range.
Disposition Affirmed
District Court A Guidelines sentence would not ―adequately protect the public, provide
Reasoning deterrence, and foster respect for the law.‖
Appellate Court The district court ―explicitly considered‖ the § 3553(a) factors.
Reasoning
Case United States v. King, 506 F.3d 532 (7th Cir. 2007).
Crime/Sentence Loan fraud, etc. Sentenced to 105 months (34 months above range).
Disposition Affirmed
District Court Guidelines sentence too low to achieve sentencing goals, especially need for
Reasoning deterrence and to protect public from his future crimes.
Appellate Court The district court‘s reasoning was ―nothing short of compelling.‖ The
Reasoning defendant failed to show that the sentence was unreasonable.
Case United States v. Zimmer, 199 F. App‘x 555 (7th Cir. 2006).
Crime/Sentence Bank fraud. Sentenced to 48 months compared to a 24–30 month range.
Disposition Affirmed
District Court The district court calculated the Guidelines range, and applied the § 3553(a)
Reasoning factors.
Appellate Court The district court adequately explained its decision to sentence above the
Reasoning Guidelines and, therefore, it was reasonable.
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Case United States v. Leahy, 464 F.3d 773 (7th Cir. 2006).
Crime/Sentence RICO violations, money laundering, and tax offenses. Sentenced to 118
months compared to a 108–135 month range (although, since the range was
in dispute, the appellate court used a 78–97 month range).
Disposition Affirmed
District Court The district court considered the severity of the offense and the fact that the
Reasoning defendant corrupted his employees and family.
Appellate Court The district court had a thoughtful analysis of § 3553(a) factors and a
Reasoning ―mountain‖ of reasons for sentencing outside the Guidelines. The court
would have upheld the sentence even if it were in lower range.
Case United States v. Levine, 477 F.3d 596 (8th Cir. 2007).
Crime/Sentence Aiding and abetting possession of unauthorized devices, etc. Sentenced to 96
months compared to a 63–78 month range.
Disposition Affirmed
District Court The district court put a lot of weight on the defendant‘s securities violation
Reasoning (which was not included in the Pre-Sentence Investigation Report as a part
of his criminal history).
Appellate Court The sentence was reasonable because the court gave weight to a mandatory
Reasoning § 3553(a) factor.
Case United States v. Obidi, 221 F. App‘x 555 (9th Cir. 2007).
Crime/Sentence Bank fraud. Sentenced to 36 months compared to a 21–27 month range.
Disposition Affirmed
District Court The length and breadth of the scheme, the central involvement of the
Reasoning defendant, the need to account for nonmonetary losses suffered by the
victim, and deterrence all favored a higher sentence.
Appellate Court The district court was thorough in its treatment of the § 3553(a) factors.
Reasoning
Case United States v. Booth, 200 F. App‘x 678 (9th Cir. 2006).
Crime/Sentence Wire fraud and money laundering. Sentenced to 162 months compared to a
110–137 month range.
Disposition Affirmed
District Court The district court considered the nature and circumstances of the crimes,
Reasoning including the sheer number of crimes and the gullibility of victims, as well
as the defendant‘s history and characteristics.
Appellate Court The district court considered the § 3553(a) factors and determined that an
Reasoning above-Guidelines sentence was warranted.
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Case United States v. Still, 249 F. App‘x 30 (10th Cir. 2007).
Crime/Sentence Falsely impersonating a federal employee. Sentenced to 36 months
compared to a 6–12 month range.
Disposition Affirmed
District Court Defendant had a lengthy criminal history and any sentence lower than the
Reasoning statutory maximum would undermine the seriousness of offense. The district
court noted high probability of recidivism and need for deterrence.
Appellate Court Even though it is a 300% upward variance, the repeated criminal conduct
Reasoning makes it reasonable.
Case United States v. Mumma, 509 F.3d 1239 (10th Cir. 2007).
Crime/Sentence Making a false statement to a financial institution and bankruptcy fraud.
Sentenced to 48 months compared to a 6–12 month range.
Disposition Affirmed
District Court The district court based the defendant‘s upward variance primarily on her
Reasoning prior financial-based convictions.
Appellate Court The court deferred to the district court‘s treatment of the § 3553(a) factors.
Reasoning
Case United States v. Patel, 178 F. App‘x 948 (11th Cir. 2006).
Crime/Sentence Bank fraud. Sentenced to 48 months compared to a 33–44 month range.
Disposition Affirmed
District Court The district court considered the serious nature of the offense, the need for
Reasoning deterrence, and the need to provide a just punishment.
Appellate Court The court noted that a lack of criminal history is only one factor to consider,
Reasoning and the district court gave an adequate explanation.
Case United States v. Reddick, 185 F. App‘x 817 (11th Cir. 2007).
Crime/Sentence Conspiracy to pass or utter a false instrument, etc. (check fraud). Sentenced
to 240 months compared to a 110–137 month range.
Disposition Affirmed
District Court A within-Guidelines sentence would not protect public. Defendant had
Reasoning history of fraud, and had just completed 60-month prison stay.
Appellate Court Court noted this was 5 years less than statutory maximum. Sentence was
Reasoning reasonable given thorough treatment of § 3553(a) factors.
Case United States v. Garner, 152 F. App‘x 775 (11th Cir. 2005).
Crime/Sentence Mail fraud. Sentenced to 60 months (top of Guidelines was 41 months).
Disposition Affirmed
District Court The district court found that defendant abused a position of trust, his
Reasoning offenses involved a large amount of money, extensive planning and
prolonged criminal activity, and a high degree of contempt for the law.
Appellate Court The court found the sentence was ―a mere fraction‖ of the statutory
Reasoning maximum. The district court expressly relied on § 3553(a) factors.
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Case United States v. Simmerer, 156 F. App‘x 124 (11th Cir. 2005), cert.
denied, 547 U.S. 1032, post-conviction relief denied, 2008 WL
897091.
Crime/Sentence Bank fraud. Sentenced to 60 months compared to a 27–33 month range.
Disposition Affirmed
District Court The district court relied, in great detail, on § 3553(a) in arriving at a
Reasoning sentence.
Appellate Court The district court explained in great detail why the Guidelines range was
Reasoning inadequate. Also, the sentence is 17% of the statutory maximum.
Case United States v. Reeves, 171 F. App‘x 275 (11th Cir. 2006), post-
conviction relief denied, 2007 WL 141148, post-conviction relief
denied, 2007 WL 4218992.
Crime/Sentence Conspiracy to commit fraud through unauthorized use of access device.
Sentenced to 60 months compared to 15–21 month range.
Disposition Affirmed
District Court The district court considered all factors, but paid special attention to the
Reasoning amount of the loss, the defendant‘s criminal history, the ―involved nature of
the offense,‖ and concern that the defendant targeted two victims.
Appellate Court The district court properly detailed why a sentence above the Guidelines was
Reasoning warranted. The court also noted that the sentence was less than the statutory
maximum.
Case United States v. Lockhart, 167 F. App‘x 111 (11th Cir. 2006).
Crime/Sentence Misappropriation of postal funds and making false entries. Sentenced to 30
months compared to a 21–27 month range.
Disposition Affirmed
District Court The district court found embezzlement of $166,000 deserving of just
Reasoning punishment. The defendant abused a position of trust. The nature of the
crime and the defendant‘s history dictated a need for deterrence.
Appellate Court The district court gave ―plausible reasons‖ for the sentence it imposed,
Reasoning ―including factors it was considering in conjunction‖ with § 3553(a).
Therefore, the sentence was not unreasonable.
Case United States v. Perkins, 181 F. App‘x 765 (11th Cir. 2006), post-
conviction relief denied, 2007 WL 2904124, cert. of appealability
denied, 2008 WL 724006.
Crime/Sentence Making false claims and aiding and assisting in false tax returns. Sentenced
to 96 months compared to a 41–51 month range.
Disposition Affirmed
District Court The district court found the upward variance was required because of 29
Reasoning criminal history points.
Appellate Court The court correctly calculated Guidelines, explained why Guidelines range
Reasoning was inadequate, and expressly considered § 3553(a) factors.
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Case United States v. Dorcely, 454 F.3d 366 (D.C. Cir. 2006).
Crime/Sentence Making a false statement to the FBI. Sentenced to 24 months compared to a
0–6 month range.
Disposition Affirmed
District Court Even though the defendant was only convicted of making a false statement,
Reasoning the Government proved by the preponderance of evidence that the defendant
was involved in conspiracy.
Appellate Court The district court properly calculated the Guidelines and the § 3553(a)
Reasoning factors (especially retribution).
APPENDIX C
This Appendix consists of cases in which district courts sentenced within the
Guidelines.
Case United States v. Soto-Cruz, 449 F.3d 258 (1st Cir. 2006).
Crime/Sentence Mail fraud and securities fraud. Sentenced to 144 months.
Disposition Affirmed
District Court The district court considered the Guidelines and § 3553(a) factors.
Reasoning
Appellate Court The sentence was not unreasonable and did not result in a miscarriage of
Reasoning justice.
Case United States v. Mueffelman, 470 F.3d 33 (1st Cir. 2006).
Crime/Sentence Mail fraud and wire fraud. Sentenced to 27 months.
Disposition Affirmed
District Court The district court did not think that anything beyond probation would
Reasoning interrupt the defendant‘s ability to make money for restitution.
Appellate Court The court concluded that the sentence was reasonable.
Reasoning
Case United States v. Alli, 444 F.3d 34 (1st Cir. 2006).
Crime/Sentence Mail theft. Sentenced to 21 months.
Disposition Affirmed
District Court The district court calculated the Guidelines range; because it was not a crime
Reasoning of opportunity, the district judge wanted to impose a higher-end sentence,
but compromised with the government.
Appellate Court The district court reasonably sentenced within the Guidelines. Neither party
Reasoning proposed any § 3553(a) mitigating/enhancing factors.
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Case United States v. Gilman, 478 F.3d 440 (1st Cir. 2007).
Crime/Sentence Mail fraud, wire fraud, etc. Sentenced to 204 months.
Disposition Affirmed
District Court The testimony of victims moved the district court to award 204 months.
Reasoning
Appellate Court While the district court did not explicitly mention the § 3553(a) factors, its
Reasoning reasoning was effectively the same. The explanation was insufficient as a
matter of law, but the defendant had failed to object.
Case United States v. Salerno, 210 F. App‘x 173 (3d Cir. 2006).
Crime/Sentence Tax fraud. Sentenced to 21 months.
Disposition Affirmed
District Court The district court considered the § 3553(a) factors and determined that a
Reasoning Guidelines sentence was appropriate.
Appellate Court The judge took into account the defendant‘s prior conviction and weighed
Reasoning the § 3553(a) factors. The court was aware of its discretion, but chose not to
depart from the Guidelines.
Case United States v. Paschal, No. 06-4376, 2007 WL 14575 (4th Cir.
Jan. 3, 2007).
Crime/Sentence Endeavoring to obstruct and impede the due administration of internal
revenue laws. Sentenced to 16 months.
Disposition Affirmed
District Court The district court calculated the Guidelines range and was willing to award a
Reasoning sentence at the low end, but awarded 16 months because of the defendant‘s
continued attempts to minimize his participation.
Appellate Court The district court correctly calculated the Guidelines and adequately
Reasoning explained the § 3553(a) factors.
Case United States v. Tilghman, 243 F. App‘x 752 (4th Cir. 2007).
Crime/Sentence Wire fraud. Sentenced to 78 months.
Disposition Affirmed
District Court The district court calculated the Guidelines range and considered the
Reasoning § 3553(a) factors.
Appellate Court This court will affirm as presumptively reasonable a sentence within the
Reasoning Guidelines range.
Case United States v. Stroupe, 200 F. App‘x 178 (4th Cir. 2006).
Crime/Sentence Conspiracy to commit wire fraud. Sentenced to 57 months.
Disposition Affirmed
District Court No specific district court reasons were mentioned.
Reasoning
Appellate Court The defendant failed to rebut the presumption of reasonableness for
Reasoning sentences within the Guidelines.
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Case United States v. Oladapo, 228 F. App‘x 357 (4th Cir. 2007).
Crime/Sentence Possession of stolen mail. Sentenced to 60 months.
Disposition Affirmed in part; vacated and remanded in part for resentencing
District Court The district court sentenced 60 months because it thought the appellate court
Reasoning would overturn if it awarded anything less.
Appellate Court The Court of Appeals was unable to determine whether the district court
Reasoning considered the § 3553(a) factors or did so properly. The district court needs
to articulate its reasons for the sentence on remand.
Case United States v. Shull, 189 F. App‘x 180 (4th Cir. 2006).
Crime/Sentence Social Security fraud. Sentenced to 21 months.
Disposition Affirmed
District Court The district court calculated Guidelines range and sentenced the defendant at
Reasoning the high end because he had been convicted of same crime 2 years earlier.
Appellate Court The district court properly calculated the Guidelines range, and there is a
Reasoning presumption of reasonableness for within-Guidelines sentencing.
Case United States v. McLean, 192 F. App‘x 234 (4th Cir. 2006).
Crime/Sentence Bank fraud, wire fraud, conspiracy, submission of false statements to secure
securities, and money laundering. Sentenced to 253 months.
Disposition Affirmed
District Court No specific district court reasons were mentioned.
Reasoning
Appellate Court The sentence was procedurally and substantively reasonable. This court will
Reasoning affirm a sentence that is within-Guidelines and reasonable.
Case United States v. Turner, 173 F. App‘x 402 (6th Cir. 2006).
Crime/Sentence Health care fraud. Sentenced to 18 months.
Disposition Affirmed
District Court The district court imposed the sentence ―as a general deterrent to white-
Reasoning collar crime.‖
Appellate Court It was appropriate for the district court to base the sentence on general
Reasoning deterrence of white-collar crime.
Case United States v. Ediger, 166 F. App‘x 218 (6th Cir. 2006).
Crime/Sentence Mail fraud and wire fraud. Sentenced to 36 months.
Disposition Affirmed
District Court The district court rejected the defendant‘s argument for probation, saying: ―I
Reasoning think it is important that those in government hear the reverberating clang of
the cell door behind them to deter others . . . .‖
Appellate Court ―We would be hard pressed to find a district court that sentenced a defendant
Reasoning more reasonably.‖ The district court correctly calculated the Guidelines
range and fairly measured the § 3553(a) factors.
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Case United States v. Cage, 458 F.3d 537 (6th Cir. 2006).
Crime/Sentence Possessing access devices with intent to defraud. Sentenced to 37 months.
Disposition Affirmed
District Court The district court calculated the Guidelines range and considered the
Reasoning defendant‘s family situation and the seriousness of her continued criminal
activity before imposing a within-Guidelines sentence.
Appellate Court The Court of Appeals acknowledged the ongoing discussion among the
Reasoning circuits about the presumption of reasonableness, and concluded that there is
a rebuttable presumption of reasonableness for within-Guidelines
sentencing. The district court adequately articulated its reasons in support of
the sentence.
Case United States v. Gale, 468 F.3d 929 (6th Cir. 2006).
Crime/Sentence Wire fraud. Sentenced to 18 months.
Disposition Affirmed
District Court The district court considered the defendant‘s age and his previous conviction
Reasoning for same crime, but decided to sentence at the low end of the Guidelines
range. It specifically addressed all § 3553(a) factors.
Appellate Court The district court clearly understood its duty to consider all of the factors
Reasoning and spent considerable effort in reviewing the circumstances. The district
court does not have to describe every detail of the evidence it considers.
Case United States v. Morris, 193 F. App‘x 475 (6th Cir. 2006).
Crime/Sentence Access device fraud, etc. Sentenced to 46 months.
Disposition Affirmed
District Court The district court determined that a Guidelines sentence was reasonable. The
Reasoning court considered deterrence, respect for the law, and just punishment, but the
defendant‘s remorse, history, and prospect for rehabilitation led to a lower-
Guidelines sentence.
Appellate Court The district court adequately considered the sentencing factors. The district
Reasoning court sufficiently articulated its reasons for sentencing at the lower end of
the Guidelines.
Case United States v. Nickson, 195 F. App‘x 291 (6th Cir. 2006).
Crime/Sentence Money laundering and mail fraud. Sentenced to 57 months.
Disposition Affirmed
District Court The district court thoroughly considered the § 3553(a) factors and remarked
Reasoning on the need to reflect the seriousness of the offense, to promote respect for
the law, provide just punishment, and to promote general deterrence of
public corruption.
Appellate Court The district court gave ample reasons for sentencing at the high end of the
Reasoning Guidelines. The sentence does not lead to sentencing disparity.
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Case United States v. Jones, 218 F. App‘x 488 (6th Cir. 2007).
Crime/Sentence Filing false tax returns. Sentenced to 35 months.
Disposition Affirmed
District Court The district court considered the number of convictions, amount of loss,
Reasoning defendant‘s lack of credibility, and assertions she was not a criminal.
Appellate Court There is a rebuttable presumption of reasonableness because the district
Reasoning court sentenced within the Guidelines. The court properly took into account
her individual characteristics.
Case United States v. Alburay, 415 F.3d 782 (7th Cir. 2005).
Crime/Sentence Wire fraud. Sentenced to 51 months.
Disposition Affirmed
District Court The district court calculated the Guidelines range and considered an upward
Reasoning departure, but instead sentenced at the high end of Guidelines.
Appellate Court The district court‘s decision adequately addressed the factors and was
Reasoning therefore reasonable.
Case United States v. Moore, Nos. 05-3281, 05-3401, 2006 WL 906435
(7th Cir. Apr. 5, 2006).
Crime/Sentence Conspiracy to commit mail fraud. One defendant sentenced to 41 months
and another to 33 months.
Disposition Affirmed
District Court The district court concluded that seriousness, recidivism, and deterrence
Reasoning dictated a low-Guidelines sentence.
Appellate Court Defendants failed to rebut the presumption of reasonableness for within-
Reasoning Guidelines sentences. Nothing the defendants pointed to required the judge
to impose a lower sentence.
Case United States v. Cassano, 166 F. App‘x 855 (7th Cir. 2006).
Crime/Sentence Conspiracy to commit money laundering and structuring currency
transactions. Sentenced to 63 months.
Disposition Affirmed
District Court The district court addressed several § 3553(a) factors.
Reasoning
Appellate Court A sentence within the Guidelines range is presumptively reasonable. The
Reasoning defendant failed to rebut this presumption of reasonableness.
Case United States v. Boscarino, 437 F.3d 634 (7th Cir. 2006).
Crime/Sentence Mail fraud, money laundering, and tax crimes. Sentenced to 36 months.
Disposition Affirmed
District Court The district court calculated the Guidelines range and then considered the
Reasoning § 3553(a) factors.
Appellate Court The court noted that a sentence within the Guidelines range which references
Reasoning the § 3553(a) factors is proper.
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Case United States v. Jung, 473 F.3d 837 (7th Cir. 2007).
Crime/Sentence Wire fraud and securities fraud. Sentenced to 109 months.
Disposition Affirmed
District Court In considering § 3553(a) factors, the district court noted the nature of the
Reasoning offense, the need for sentence to reflect seriousness of crime, the need to
deter financial crimes, promotion of the respect for law, and just punishment.
The district court thought that ―counterbalancing factors‖ warranted a
sentence within the mid-range of the guidelines.
Appellate Court The district court adequately considered § 3553(a) factors, chose a sentence
Reasoning within the Guidelines range, and adequately explained its reasoning for
sentencing in the middle of the Guidelines.
Case United States v. Vincent, 152 F. App‘x 545 (7th Cir. 2005).
Crime/Sentence Wire fraud, mail fraud, and making false statements. Sentenced to 46
months.
Disposition Affirmed
District Court The district court considered § 3553(a) factors.
Reasoning
Appellate Court The range properly took into account amount of loss, abuse of position of
Reasoning trust, the defendant‘s perjury at trial, and fact that the defendant did not
accept responsibility. The district court was not required to give a detailed
explanation of the § 3553(a) factors.
Case United States v. Blue, 453 F.3d 948 (7th Cir. 2006).
Crime/Sentence The defendant was convicted of wire fraud and bank fraud. Sentenced to 46
months.
Disposition Affirmed
District Court The district court opted to go for a lower-Guidelines sentence instead of
Reasoning granting a departure below the Guidelines because of the seriousness of the
offense and the defendant‘s proactive role.
Appellate Court The sentence was reasonable. The district court factored in the seriousness of
Reasoning the offense and the need to provide just punishment.
Case United States v. Ellis, 440 F.3d 434 (7th Cir. 2006).
Crime/Sentence Willfully making and subscribing a false income tax return. Sentenced to 18
months.
Disposition Affirmed
District Court The defendant abused his position as bishop to cheat the IRS. The district
Reasoning court gave him lower level from the enhanced offense level.
Appellate Court The district court went through the proper post-Booker steps and imposed a
Reasoning reasonable sentence.
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Case United States v. Huber, 462 F.3d 945 (8th Cir. 2006).
Crime/Sentence Making fraudulent statements to the government, tax fraud, money
laundering. Sentenced to 60 months.
Disposition Affirmed
District Court The district court followed a textbook post-Booker approach; it noted the
Reasoning Guidelines and then applied the § 3553(a) factors.
Appellate Court A sentence within the Guidelines is presumptively reasonable. The district
Reasoning court accurately applied the post-Booker doctrine.
Case United States v. Felder, 225 F. App‘x 423 (8th Cir. 2007).
Crime/Sentence Fraud and identity theft. Sentenced to 30 months.
Disposition Affirmed
District Court The district court weighed § 3553(a) factors, such as the defendant‘s family
Reasoning situation and the need to deter others from committing fraud.
Appellate Court The district court adequately considered appropriate factors, and thus the
Reasoning sentence was reasonable.
Case United States v. Artis, 151 F. App‘x 627 (8th Cir. 2006).
Crime/Sentence Bank fraud. Sentenced to 46 months.
Disposition Affirmed
District Court The district court considered all of the § 3553(a) factors, including that the
Reasoning defendant organized the offense while on supervised release.
Appellate Court The defendant failed to rebut the presumption of reasonableness of his
Reasoning within-Guidelines sentence. The district court addressed the factors and
properly calculated the range.
Case United States v. Walker, 439 F.3d 890 (8th Cir. 2006).
Crime/Sentence Conspiracy to commit financial aid fraud. Sentenced to 5 months.
Disposition Affirmed
District Court The district court examined all of the § 3553(a) factors.
Reasoning
Appellate Court A district court does not need to ―categorically rehearse each of the [§
Reasoning 3553(a)] factors on the record.‖ The court was satisfied that the district court
examined the factors. Also, a Guidelines sentence is presumptively
reasonable (which the defendant failed to rebut).
Case United States v. Farrington, 499 F.3d 854 (8th Cir. 2007).
Crime/Sentence Wire fraud. Sentenced to 63 months.
Disposition Affirmed
District Court The district court considered the nonviolent nature of the crime, the
Reasoning defendant‘s medical needs, and the defendant‘s need to support his family,
but found these facts insufficient to vary downward.
Appellate Court The district court did not abuse its discretion by not varying downward (it
Reasoning properly treated the circumstances).
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Case United States v. Archuleta, 412 F.3d 1003 (8th Cir. 2005).
Crime/Sentence Mail fraud. Sentenced to 27 months.
Disposition Affirmed
District Court No specific district court reasons were mentioned.
Reasoning
Appellate Court The sentence was well within the statutory range, as well as within-
Reasoning Guidelines. A sentence of 27 months for a crime that defrauded victims of
over $1.5 million over a period of 4 years was reasonable.
Case United States v. Ellison, 204 F. App‘x 574 (8th Cir. 2006).
Crime/Sentence Bank fraud. Sentenced to 33 months.
Disposition Affirmed
District Court The district court considered Guidelines, ignoring defendant‘s request for
Reasoning home confinement so he could work to pay restitution and support family.
Appellate Court The district court adequately considered the Guidelines. There was nothing
Reasoning to rebut the presumption that the sentence was reasonable.
Case United States v. Soukas, 202 F. App‘x 971 (9th Cir. 2006).
Crime/Sentence Conspiracy to commit wire fraud and bank fraud. Sentenced to 92 months.
Disposition Affirmed
District Court The district court considered the defendant‘s family circumstances, his
Reasoning criminal history, his flight to Greece, and other § 3553(a) factors.
Appellate Court The district court properly calculated the Guidelines range and considered
Reasoning the § 3553(a) factors, and was therefore reasonable.
Case United States v. Prime, 225 F. App‘x 466 (9th Cir. 2007).
Crime/Sentence Conspiracy to commit wire fraud, securities violations. Sentenced to 85
months.
Disposition Affirmed
District Court The district court considered relevant § 3553(a) factors: prior conviction for
Reasoning fraud, complex/creative means used to defraud, and leadership role.
Appellate Court The sentence was reasonable. The district court did not err by not taking into
Reasoning account medical condition.
Case United States v. Dazey, 242 F. App‘x 563 (10th Cir. 2007).
Crime/Sentence Conspiracy to commit fraud, wire fraud, and money laundering. Sentenced
to 121 months.
Disposition Affirmed
District Court No specific district court reasons were mentioned.
Reasoning
Appellate Court The court noted that the sentence is presumptively reasonable.
Reasoning
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Case United States v. Herula, 464 F.3d 1132 (10th Cir. 2006).
Crime/Sentence Bank fraud, wire fraud, money laundering. Sentenced to 188 months.
Disposition Affirmed
District Court The district court calculated the Guidelines range and considered the §
Reasoning 3553(a) factors.
Appellate Court The sentence was reasonable because the district court calculated the
Reasoning Guidelines sentence and took notice of the § 3553(a) factors. There is a
presumption of reasonableness for within-Guidelines sentences.
Case United States v. Fowler, 222 F. App‘x 738 (10th Cir. 2007).
Crime/Sentence Bank fraud, securities violations, etc. Sentenced to 41 months.
Disposition Affirmed
District Court The district court addressed the § 3553(a) factors.
Reasoning
Appellate Court A within-Guidelines sentence is presumptively reasonable, and the
Reasoning defendant did nothing to rebut the presumption.
Case United States v. Jimerson, 192 F. App‘x 884 (11th Cir. 2006).
Crime/Sentence Social security fraud, filing false claims, conspiracy to defraud the United
States. Sentenced to 20 months.
Disposition Affirmed
District Court The district court considered defendant‘s medical condition, as well as other
Reasoning § 3553(a) factors to sentence defendant in the middle of Guidelines.
Appellate Court The sentence was reasonable since nothing in the record indicates that this is
Reasoning an ―unusual case‖ (in reference to the medical condition).
Case United States v. Wise, 158 F. App‘x 173 (11th Cir. 2005).
Crime/Sentence Bank fraud. Sentenced to 24 months.
Disposition Affirmed
District Court The district court weighed victimization of the elderly, abuse of trust, and
Reasoning large amount of money involved against the defendant‘s remorse,
cooperation, and the fact that she is a first-time offender.
Appellate Court The sentence is reasonable given the thorough treatment of § 3553(a)
Reasoning factors. The district court properly considered mitigating factors.
Case United States v. Nottage, 205 F. App‘x 830 (11th Cir. 2006).
Crime/Sentence Health care fraud. Sentenced to 121 months.
Disposition Affirmed
District Court The district court calculated Guidelines range, considered § 3553(a) factors:
Reasoning defendant‘s family situation, sustained her objection to enhancement for
leadership role, and reduced quantity of drugs.
Appellate Court The district court was not required to discuss each § 3553(a) factor, but did
Reasoning discuss at least some and, thus, the sentence was reasonable.
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Case United States v. Sprague, 185 F. App‘x 794 (11th Cir. 2006).
Crime/Sentence Wire fraud. Sentenced to 33 months.
Disposition Affirmed
District Court The district court calculated the Guidelines range, but did not specifically
Reasoning consider the § 3553(a) factors.
Appellate Court Although the district court did not explicitly refer to the § 3553(a) factors,
Reasoning the sentence was within the Guidelines range and well under the statutory
maximum. The district court considered the defendant‘s history and
characteristics and the circumstances of the offense.
Case United States v. Henry, 205 F. App‘x 763 (11th Cir. 2006).
Crime/Sentence Social Security fraud. Sentenced to 24 months.
Disposition Affirmed
District Court The district court considered the defendant‘s history and personal
Reasoning circumstances, mental health, and prior offenses which the court found
demonstrated a propensity towards violence.
Appellate Court The district court adequately considered the defendant‘s personal
Reasoning circumstances. Nothing rebutted the presumption of reasonableness.
Case United States v. Ruben, 181 F. App‘x 878 (11th Cir. 2006).
Crime/Sentence Embezzlement. Sentenced to 48 months.
Disposition Affirmed
District Court The district court considered the § 3553(a) factors and decided that a within-
Reasoning Guidelines sentence was appropriate.
Appellate Court The sentence was within the presumptively reasonable Guidelines. The court
Reasoning addressed the defendant‘s history, the defendant‘s past economic crimes,
deterrence, and just punishment.
