Split Third Circuit debates (at extraordinary length) reasonableness review

Setting what I think is a record for the longest post-Booker opinion focused exclusively on reasonableness review, a split Third Circuit panel today provides the week's first must-read with US v. Tomko, No. 05-4997 (3d Cir. Aug. 20, 2007) (available here).  Here are the starts of the two (very lengthy) opinions in the case:

From the majority (per Judge Fisher):

The Government appeals from a judgment of sentence imposed on William Tomko, Jr., who pleaded guilty to a fraudulent scheme to evade personal income taxes.  Tomko’s fraudulent scheme resulted in a tax deficiency of more than $225,000.  The District Court imposed a below-Guidelines sentence consisting of 250 hours of community service, three years of probation (including one year of house arrest), and a fine of $250,000. Tomko was also ordered to undergo twenty-eight days of in-house treatment for alcohol abuse.  As discussed below, this sentence is unreasonable in light of the circumstances of this case and the sentencing factors outlined in 18 U.S.C. § 3553(a). It was therefore an abuse of discretion for the District Court to impose it and we will vacate the judgment and remand for resentencing.

From Judge Smith's dissent:

I do not believe it presumptuous to state that each member of this panel, if sitting as a district judge, would have sentenced William Tomko to time in prison.  However, this Court does not review sentences de novo.  Instead, we afford “deference to the District Court because it is in the best position to determine the appropriate sentence in light of the particular circumstances of the case.” United States v. Dragon, 471 F.3d 501, 506 (3d Cir. 2006) (quotation omitted). Post-Booker, reasonableness review is the standard, and it “merely asks whether the trial court abused its discretion.” Rita v. United States, --- U.S. --- , 127 S.Ct. 2456, 2465 (2007); see also id. at 2470-71 (Stevens, J., concurring) (“Simply stated, Booker replaced the de novo standard of review required by 18 U.S.C. § 3742(e) with an abuse-of-discretion standard that we called ‘reasonableness’ review.” (citation omitted)).  Rita reminds us that the Guidelines “reflect a rough approximation of sentences that might achieve § 3553(a)’s objectives,” id. at 2465, and that the Sentencing Commission has carried out the objectives at “wholesale.”  Id. at 2463.  The sentencing judge, in contrast, carries out the § 3553(a) objectives at “retail,” id., so that “[t]he sentencing judge has access to, and greater familiarity with, the individual case and the individual defendant before him than the Commission or the appeals court.” Id. at 2469.

In this case, the District Court provided a thorough discussion of how it meaningfully considered the factors outlined in 18 U.S.C. § 3553(a), and then reasonably applied them to the facts of the case before it.  The majority disagrees and, in doing so, makes at least three major errors.