First Circuit lacks the gall to await Gall and reverses probation sentence

I am eagerly awaiting tomorrow's SCOTUS sentencing arguments in Gall and Kimbrough to see how the Justices discuss the status of below-guideline after Booker.  But, as evidenced by its ruling today in US v. Tom, No. 07-1074 (1st Cir. Oct. 1, 2007) (available here), the First Circuit seems no reason to await further guidance on reasonableness review before reversing a below-guideline sentence in a white-collar case.  Here are the Tom basics from the start of the opinion:

The government appeals as unreasonably lenient a sentence of thirty-six months' probation (including six months of community confinement) imposed on a whitecollar criminal, Michael Tom. Tom, a securities professional, illegally made almost $800,000 in insider trading profits and then obstructed justice by lying under oath to the Securities and Exchange Commission, encouraging another witness to lie, and creating a false document.

The low end of the Sentencing Guidelines range for Tom, including a two-level increase for obstruction of justice, was thirty-seven months' imprisonment, and the prosecution agreed to make that recommendation as part of a plea agreement. After accepting Tom's guilty plea, the court declined to sentence within the Guidelines range or to imprison Tom, and stated three reasons for its sentence. The court primarily rested on a disparity rationale: that Shengnan Wang, who as a cooperating co-defendant received a U.S.S.G. § 5K1.1 departure, was the insider tipper and gained $9,761, and had been sentenced by a different judge to twelve months' probation (and 500 hours community service). The court stated that Tom was less culpable than Wang, and that made any Guidelines sentence for Tom unjust.  The court also articulated a concern that Tom was subject to sanctions by the SEC, and a prison sentence would over-punish him.  Finally, while the court had concluded that family circumstances would not justify a downward departure, the court noted that Tom's family problem -- a daughter's illness -- factored into the mix.

We agree with the government that the sentence is unreasonable and that it did not give adequate consideration to the seriousness of the offense, the need for general deterrence for white-collar crimes, and the need for some imprisonment. We reverse and remand for resentencing.