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November 18, 2008

Update on a notable post-Booker en banc case in the Third Circuit

As detailed in this new article from The Legal Intelligencer, the Third Circuit is due to hear en banc this week another notable post-Booker sentencing appeal. Here is how the article begins:

In a pair of en banc arguments on Wednesday, the 3rd U.S. Circuit Court of Appeals will tackle questions that could have a broad impact on how appellate courts review criminal sentences and on the scope of the federal courts' powers in granting relief in habeas corpus petitions.

In United States v. Tomko, a 13-judge panel must decide whether a sentence of probation and house arrest was "reasonable" for a confessed tax cheat.  A previous panel voted 2-1 in August 2007 to overturn the sentence, saying the case clearly called for at least some time in prison.

The court's decision to have the case reargued before the full court strongly suggests that the sentence will be upheld because a majority of the court's active judges is needed to grant en banc rehearing.

When I blogged here in August about the Third Circuit's decision to take Tomko en banc, I noted that we are still awaiting at least two important en banc reasonableness rulings from other circuits: the Cavera, case from the Second Circuit concerning whether local conditions can reasonably justify an above-guideline sentence, and the White case from the Sixth Circuit concerning acquitted conduct enhancements.  Notably, three months later we are still awaiting rulings in Cavera and White.

November 18, 2008 at 07:55 AM | Permalink


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Tomko was the affluent owner of a large construction company who coerced more than a dozen subcontractors into submitting false invoices to make it appear that their work was completed for his construction firm rather than to construct his lavish personal residence. Tomko received a substantial variance to probation with home confinement- yes, the very same 8,000 square-foot mansion he built with the help of the tax fraud. The government argues that the perverse irony of such a "gilded-cage" confinement is unreasonable and brings disrepute to the courts of the circuit.

I agree that any reasonable observer of these proceedings would think that placing a sophisticated tax cheat on house arrest in the luxurious mansion that his tax offense paid for is not prudent. In this case, the Court abused the institutional advantage it holds at sentencing.

Posted by: mjs | Nov 18, 2008 3:43:05 PM

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