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April 17, 2009

En banc Third Circuit upholds probation sentence in tax evasion case

On the heels of yesterday's long panel ruling finding a child porn downloader's sentence unreasonable as too harsh in Olhovsky (discussed here), the Third Circuit today issued an even longer en banc opinion in US v. Tomko, No. 05-4997 (3d Cir. April 17, 2009).  A helpful reader send me the ruling (which does not yet appear on line, but can be downloaded below), and here is how the majority opinion starts:

The Government appeals the reasonableness of William Tomko’s below-Guidelines sentence of probation, community service, restitution, and fine for his tax evasion conviction. If any one of a significant number of the members of this Court — including some in today’s majority — had been sitting as the District Judge, Tomko would have been sentenced to some time in prison. But “[t]he fact that the appellate court might reasonably have concluded that a different sentence was appropriate is insufficient to justify reversal of the district court.”  Gall v. United States, 128 S. Ct. 586, 597 (2007).... Where, as here, a district court decides to vary from the Guidelines’ recommendations, we “must give due deference to the district court’s decision that the § 3553(a) factors, on a whole, justify the extent of the variance.” Id. at 597. These principles require us to affirm Tomko’s sentence.

The full majority opinion runs nearly 40 pages, and the dissent also runs almost another 40. Both sides make a bunch of good points, and it is especially interesting to speculate about whether the Justice Department might be inclined to seek cert in this case. 

Download Tomko 3d Circuit opinion

UPDATE:  The Tomko decision is now available on-line at this link.

April 17, 2009 at 10:35 AM | Permalink


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Also, will the government seek rehearing in Ohlovsky on the basis of Tomko? :)

Posted by: Observer | Apr 17, 2009 11:06:16 AM

At least Judge Rendell is consistent-- she was on the Ohlovsky panel and is one of the five Tomko dissenters...

Posted by: Anon | Apr 17, 2009 11:40:04 AM

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