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November 14, 2008

DC Circuit splits over reasonableness of probation sentence for tax cheat

The DC Circuit issues relatively few sentencing decisions, but those it hands down tend to be quite thoughtful.  Today's split panel decision in US v. Gardellini, No. 07-3089 (DC Cir. Nov. 14, 2008) (available here), is no exception. Here is how the majority opinion starts:

This case exemplifies our deferential substantive review of sentences – including outside-the-Guidelines sentences – in the wake of Booker v. United States, 543 U.S. 220 (2005), and Gall v. United States, 128 S. Ct. 586 (2007).  The Sentencing Guidelines range for defendant Gardellini’s tax offense was 10 to 16 months. The District Court imposed probation and a fine.  On appeal, the Government challenges that below-Guidelines sentence as substantively unreasonable.  But the Government’s Guidelines-centric appellate argument overlooks the twin points that the Supreme Court has stressed in its recent sentencing decisions: The Guidelines now are advisory only, and substantive appellate review in sentencing cases is narrow and deferential. As the case law in the courts of appeals since Gall demonstrates, it will be the unusual case when we reverse a district court sentence – whether within, above, or below the applicable Guidelines range – as substantively unreasonable.  Based on the principles set forth in Booker and Gall, we affirm the District Court’s judgment in this case.

Here is a snippet from the start of the dissenting opinion:

[I]n sentencing Gardellini, the district court gave no weight to one of the goals stated by 18 U.S.C. § 3553(a)(2)(B): deterring others from committing similar crimes. As a result, whereas the Sentencing Guidelines set a range of 10–16 months imprisonment, the court sentenced Gardellini to probation and a $15,000 fine.  (The probation, I should note, will be served in Belgium, where his wife is an EU official. He will thus not be subject to the usual restrictions inherent in probation, such as susceptibility to searches, which the Supreme Court has found important in evaluating the reasonableness of a probation sentence. See Gall v. United States, 128 S. Ct. 586, 595-96 (2007).)  I believe disregard of the deterrence factor was an abuse of discretion and would therefore reverse and remand for resentencing.

November 14, 2008 at 12:40 PM | Permalink


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The extent of the variance is not great here but I concur with the dissent for the following reason: Unlike Gall where the Court went down from a 37-46 month guideline to a sentence of probation-that probationary term had true teeth and restrictions of liberty. Because the Court made the unusual concession of allowing the sentence to be served overseas, this defendant is not subject to the usual restrictions or conditions of sentence. In effect, he is on holiday in Belgium for the term of his probation. Hardly the deterrent envisioned by the statute or the guidelines for a sophisticated tax violator who used offshore accounts to commit the offense in the first instance. This is worse than sentencing Hugh Hefner to house arrest at the Playboy mansion--at least the US Marshal could arrest old Heff if he violated any conditions. Good luck getting Mr. Offshore accounts back from Belgium.

Posted by: mjs | Nov 14, 2008 5:57:50 PM

I am just so delighted that an appeals court, any appeals court, didn't take the easy way out by an evaluation of the procedural reasonableness of the sentence. They faced the question of whether the sentence was substantially unreasonable head on. For that, I can almost forgive the court for this stupid decision. The sentence is completely unreasonable. I agree with the dissent.

Posted by: Daniel | Nov 14, 2008 8:40:07 PM

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