PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
v. No. 08-4497
FREDERICK L. ENGLE,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
Graham C. Mullen, Senior District Judge.
(3:04-cr-00055-GCM-DCK-1)
Argued: September 23, 2009
Decided: January 13, 2010
Before TRAXLER, Chief Judge, WILKINSON, Circuit
Judge, and Margaret B. SEYMOUR, United States District
Judge for the District of South Carolina,
sitting by designation.
Vacated and remanded by published opinion. Chief Judge
Traxler wrote the opinion, in which Judge Wilkinson and
Judge Seymour joined.
COUNSEL
ARGUED: Matthew Theodore Martens, OFFICE OF THE
UNITED STATES ATTORNEY, Charlotte, North Carolina,
2 UNITED STATES v. ENGLE
for Appellant. James Frank Wyatt, III, WYATT & BLAKE,
LLP, Charlotte, North Carolina, for Appellee. ON BRIEF:
Gretchen C. F. Shappert, United States Attorney, Charlotte,
North Carolina, for Appellant. Robert A. Blake, Jr., WYATT
& BLAKE, LLP, Charlotte, North Carolina, for Appellee.
OPINION
TRAXLER, Chief Judge:
Frederick Engle pleaded guilty to tax evasion, see 26
U.S.C.A. § 7201 (West 2002), and the district court sentenced
him to four years’ probation, conditioned on the service of
eighteen months’ home detention with work release and inter-
national travel privileges. The government appeals, challeng-
ing the reasonableness of the sentence. For the reasons set
forth below, we vacate the sentence and remand for re-
sentencing.
I.
The information presented during the proceedings below
and set out in the presentence report establish that Engle, who
was 64 years old when he pleaded guilty, had worked as a
manufacturing representative in the shoe industry for more
than 30 years. His business required frequent and extensive
overseas travel every year.
The criminal information charged Engle with tax evasion
for the 1998 tax year only, although the information alleged
that Engle had evaded taxes for sixteen years between 1984
and 2002 and owed taxes of more than $600,000. With inter-
est and penalties included, Engle’s total tax liability exceeded
$2 million. Engle’s actions to avoid taxes included providing
false information to the Internal Revenue Service, placing
assets in others’ names, and funneling income through shell
corporations that he controlled.
UNITED STATES v. ENGLE 3
Engle pleaded guilty to the information in 2004 and pro-
ceeded to sentencing almost two years later, in February
2006. Based on a total offense level of 17 and a category II
criminal history, the presentence report calculated Engle’s
advisory sentencing range as 27-33 months. The district court
concluded that Engle’s criminal history was overstated and
therefore reduced Engle’s criminal history to category I,
yielding an advisory sentencing range of 24-30 months.
The government sought a term of imprisonment within the
advisory range. The government noted that it prosecutes rela-
tively few tax evasion cases and generally does so only
"under the most egregious circumstances." J.A. 31. The gov-
ernment argued that Engle had avoided his tax obligations for
sixteen years and that a period of incarceration was necessary
to provide adequate deterrence to others. The district court,
however, was primarily concerned with making Engle pay his
tax debt. See J.A. 31c ("Right now I’ve got this guy and I can
try to figure out a way to get the money out of him."). The
court concluded that Engle’s ability to earn significant
amounts of money warranted a variance sentence:
I’m satisfied that a variance is appropriate under the
circumstances for the reason that I believe that I can
craft a sentence that addresses both the need to
deprive this defendant of his physical liberty for a
significant period of time . . . and leave him free to
attempt to generate the income that would permit
him to settle up with the Internal Revenue Service.
I’m sympathetic to the government’s position.
Absent . . . the apparent ability to generate the
income, I would simply impose a Guideline sentence
and be done with it.
J.A. 31e. The court sentenced Engle to four years’ probation,
conditioned on confinement for eighteen months in a commu-
nity corrections center. The court directed that Engle, while in
4 UNITED STATES v. ENGLE
the community corrections center, would be permitted to
travel to China as required by his job.
Shortly after the district court announced the sentence, the
court learned that the Bureau of Prisons would not permit
international travel while Engle was housed in a community
corrections center. The district court therefore vacated the
sentence and indicated that Engle would be resentenced at a
later date.
The district court finally reconvened the sentencing pro-
ceeding in March 2008, more than two years after the original
sentencing proceeding. At the hearing, the district court asked
whether Engle had yet paid any of the taxes owed. Counsel
for Engle stated that he had $25,000 in his trust account avail-
able for immediate payment and that Engle would be receiv-
ing $100,000 in commissions in the next month or two that
could be applied to the taxes owed. The government, how-
ever, pointed out that in the four years since pleading guilty
and the two years since the first sentencing proceeding, Engle
had paid only $480 on the taxes owed, and that payment was
made only two weeks earlier, after Engle was contacted by
the IRS. The government again argued that a sentence of
imprisonment within the range suggested by the Guidelines
was appropriate, given Engle’s conduct. Defense counsel
argued that Engle’s tax problems were not the result of an
extravagant lifestyle, but instead were simply "money man-
agement" problems, J.A. 61, spurred on by the costs of three
divorces and the need to put his children through college and
support his current wife and her children. Counsel for Engle
noted that since the first sentencing proceeding Engle had
repaid a $500,000 advance owed to his employer and now had
$125,000 available to repay the government. Counsel argued
that Engle had "done the best he can under the circumstances"
and that he now had the ability "to repay every cent the gov-
ernment is owed in terms of this criminal case, as well as any
civil proceedings that may ensue." J.A. 60.
UNITED STATES v. ENGLE 5
The district court asked the government whether it wanted
"blood or money," J.A. 60, and the government again stated
that it wanted a sentence within the range set by the Guide-
lines. The court believed the government was thus asking for
"[b]lood[,] [b]ecause if I take away his income, you’re not
going to get" the money. J.A. 60. The court ultimately
decided that a sentence similar to the one previously imposed
would be appropriate. The court explained its reasoning:
In considering the nature and circumstances of the
offense and the history and characteristics of the
defendant, I [agree that this is] more of a money
management issue than anything else, [and] the issue
that I face as judge in trying to deal with this is to
try to apply these factors in a way that appropriately
punishes Mr. Engle but does not destroy his ability
to pay that money.
I find that a very difficult proposition because I
think that there is a need to reflect the seriousness of
the offense. I’m concerned that I’m not hearing any
effort to try to balance this out other than let’s put
him in jail and take away his livelihood, which will
destroy the ability of the government to collect the
money. I don’t see how that necessarily promotes
respect for the law.
Anything at all that happens to make him pay
money affords some deterrence to criminal conduct.
I don’t see any need to protect the public from fur-
ther crimes of the defendant. He has no need for
vocational training or other correctional treatment
unless, of course, I were to order him incarcerated,
in which case he would need the vocational training.
***
It . . . seems to me to be appropriate to come up
with a variance that would reflect this man’s ability
6 UNITED STATES v. ENGLE
to pay this money. And I think that considering all
of that — I don’t see any unwarranted sentencing
disparities. Look at the Gall case. This isn’t a partic-
ularly terrible . . . variance. It seems to be, then, that
the sentence I originally thought about[, w]hich was
fours years probation, 18 months house arrest on
electronic monitoring with work release, and he will
be permitted to make trips to China as demanded by
his employer.
J.A. 63-64. The district court directed that the $25,000 held by
Engle’s attorney be paid to the IRS immediately and that
Engle pay the $100,000 in expected commissions within 90
days. The district court, however, declined to order full resti-
tution, believing that the IRS "has adequate means to do that."
J.A. 65.
The government appeals the sentence imposed by the dis-
trict court. According to the government, the district court’s
probationary sentence is inconsistent with the policy consider-
ations underlying prosecutions for income tax evasion, and
Engle’s substantial earning potential was not a sufficient rea-
son to decline to impose a sentence of imprisonment as rec-
ommended by the Guidelines.
II.
Since the Supreme Court’s decision in Booker, the Sentenc-
ing Guidelines are no longer mandatory but are instead "effec-
tively advisory." United States v. Booker, 543 U.S. 220, 245
(2005). When sentencing criminal defendants in the post-
Booker world, district courts must first correctly calculate the
defendant’s sentence under the Sentencing Guidelines. The
court must then allow the parties to argue for what they
believe to be an appropriate sentence and consider those argu-
ments in light of the factors set forth in 18 U.S.C.A. § 3553(a)
(West 2000 & Supp. 2009). See Gall v. United States, 552
U.S. 38, 49-50 (2007); United States v. Abu Ali, 528 F.3d 210,
UNITED STATES v. ENGLE 7
260 (4th Cir. 2008). Sentencing courts are statutorily required
to state their reasons for imposing sentence. See 18 U.S.C.A.
§ 3553(c) (West Supp. 2009). Although a comprehensive,
detailed opinion is not necessarily required, the court’s expla-
nation must nonetheless be sufficient "to satisfy the appellate
court that [the district court] has considered the parties’ argu-
ments and has a reasoned basis for exercising [its] own legal
decisionmaking authority." Rita v. United States, 551 U.S.
338, 356 (2007); see also Gall, 552 U.S. at 50 ("After settling
on the appropriate sentence, [the district court] must ade-
quately explain the chosen sentence to allow for meaningful
appellate review and to promote the perception of fair sen-
tencing."). District courts have "sizeable discretion" when
sentencing, Abu Ali, 528 F.3d at 266, and appellate review is
limited to determining whether the sentence imposed is rea-
sonable, see Gall, 552 U.S. at 40-41.
An appellate court’s reasonableness review has procedural
and substantive components. The procedural component
requires us to ensure that the district court
committed no significant procedural error, such as
failing to calculate (or improperly calculating) the
Guidelines range, treating the Guidelines as manda-
tory, failing to consider the § 3553(a) factors, select-
ing a sentence based on clearly erroneous facts, or
failing to adequately explain the chosen sentence-
including an explanation for any deviation from the
Guidelines range.
Id. at 51. The substantive component of reasonableness
review requires us to "take into account the totality of the cir-
cumstances." Id. While we may consider the extent of any
variance from the advisory Guidelines range, we "must give
due deference to the district court’s decision that the
§ 3553(a) factors, on a whole, justify the extent of the vari-
ance." Id. Given the institutional advantages of district courts
with regard to sentencing matters, see United States v. Evans,
8 UNITED STATES v. ENGLE
526 F.3d 155, 166 (4th Cir.), cert. denied, 129 S. Ct. 476
(2008), all sentences, including sentences "significantly out-
side the Guidelines range," must be reviewed "under a defer-
ential abuse-of-discretion standard." Gall, 552 U.S. at 41.
In challenging the sentence imposed by the district court,
the government advances several interrelated arguments. The
government contends that the district court failed to properly
consider all of the factors set forth in 18 U.S.C.A. § 3553(a).
According to the government, the district court failed to prop-
erly consider the seriousness of Engle’s conduct and the need
for deterrence, but at the same time placed too much emphasis
on restitution and Engle’s financial ability to pay restitution.
The government argues that the court’s emphasis on restitu-
tion is inconsistent with the policy considerations underlying
the Guidelines’ sentencing recommendations for tax crimes
and that granting lenience to defendants with the financial
ability to satisfy large restitution awards amounts to bad pub-
lic policy. The government also argues that, given the disposi-
tive weight that the district court assigned to the need for
restitution, the court’s refusal to order restitution renders the
sentence unreasonable.
A.
We begin with the government’s claim that the court failed
to properly consider all of the § 3553(a) factors. Specifically,
the government argues that the district court failed to consider
or failed to properly consider the seriousness of the offense,
see 18 U.S.C.A. § 3553(a)(2)(A); the need for the sentence to
provide sufficient deterrence, see id. § 3553(a)(2)(B); the pol-
icy statements issued by the Sentencing Commission, see id.
§ 3553(a)(5); and the need to avoid unwarranted sentence dis-
parities, see id. § 3553(a)(6).1
1
The government describes its arguments as going to the substantive
reasonableness of Engle’s sentence. In our view, many of the govern-
ment’s arguments — such as its claim that the district court failed to con-
UNITED STATES v. ENGLE 9
Although the district court mentioned the seriousness of the
offense, the court did so only in passing, without any real
explanation of how the court believed that factor affected its
sentencing decision. See J.A. 63 ("I think that there is a need
to reflect the seriousness of the offense."). And while the
court mentioned disparities, it was only to say that there were
no unwarranted disparities. See J.A. 64. Since the district
court made it clear that defendants without Engle’s earning
capacity would have been sentenced to prison, something
more than a denial of even the existence of disparities would
seem to be required. See United States v. Carter, 564 F.3d
325, 329 (4th Cir. 2009) ("[T]he district court need not roboti-
cally tick through § 3553(a)’s every subsection. But at the
same time, a talismanic recitation of the § 3553(a) factors
without application to the defendant being sentenced does not
demonstrate reasoned decisionmaking or provide an adequate
basis for appellate review." (citation and internal quotation
marks omitted)).
We need not decide, however, whether the district court’s
cursory treatment of these factors would in and of itself be
enough to require resentencing. Questions about the serious-
ness of the offense and the possibility of unwarranted sentenc-
ing disparities are interrelated with what we believe to be the
more important issue in this case—the district court’s failure
to consider the relevant policy statements issued by the Sen-
tencing Commission.
As the government notes, the policy statements issued by
the Sentencing Commission make it clear that the Commis-
sion views tax evasion as a serious crime and believes that,
sider all of the § 3553(a) factors — are more properly viewed as
challenging the procedural reasonableness of the sentence. See Gall, 552
U.S. at 51. We will, of course, consider the government’s arguments on
their merits, without regard to whether the government attached the cor-
rect descriptive label to those arguments.
10 UNITED STATES v. ENGLE
under the pre-Guidelines practice, too many probationary sen-
tences were imposed for tax crimes. See U.S.S.G. Ch. 1, Pt.
A, introductory cmt. 4(d) (1998) ("Under pre-guidelines sen-
tencing practice, courts sentenced to probation an inappropri-
ately high percentage of offenders guilty of certain economic
crimes, such as theft, tax evasion, antitrust offenses, insider
trading, fraud, and embezzlement, that in the Commission’s
view are ‘serious.’"). The policy statements also reflect the
Commission’s view that general deterrence — that is, deter-
ring those other than the defendant from committing the crime
— should be a primary consideration when sentencing in tax
cases. As the Commission has explained,
The criminal tax laws are designed to protect the
public interest in preserving the integrity of the
nation’s tax system. Criminal tax prosecutions serve
to punish the violator and promote respect for the tax
laws. Because of the limited number of criminal tax
prosecutions relative to the estimated incidence of
such violations, deterring others from violating the
tax laws is a primary consideration underlying these
guidelines. Recognition that the sentence for a crimi-
nal tax case will be commensurate with the gravity
of the offense should act as a deterrent to would-be
violators.
U.S.S.G. Ch. 2, Pt. T, introductory cmt. (1998). The policy
statements likewise make it clear that the Commission
believes that there must be a real risk of actual incarceration
for the Guidelines to have a significant deterrent effect in tax
evasion cases. The Guidelines therefore
classify as serious many offenses for which proba-
tion was frequently given and provide for at least a
short period of imprisonment in such cases. The
Commission concluded that the definite prospect of
prison, even though the term may be short, will serve
as a significant deterrent, particularly when com-
UNITED STATES v. ENGLE 11
pared with pre-guidelines practice where probation,
not prison, was the norm.
Id. at Ch. 1, Pt. A, introductory cmt. 4(d) (1998) (emphasis
added). Given the nature and number of tax evasion offenses
as compared to the relatively infrequent prosecution of those
offenses, we believe that the Commission’s focus on incarcer-
ation as a means of third-party deterrence is wise. The vast
majority of such crimes go unpunished, if not undetected.
Without a real possibility of imprisonment, there would be lit-
tle incentive for a wavering would-be evader to choose the
straight-and-narrow over the wayward path.
The district court, however, made no mention of these spe-
cific policy statements, nor did the court more broadly
acknowledge the general principles underlying the Guide-
lines’ approach to sentencing for serious economic crimes like
tax evasion. The only statements made by the district court
touching on these areas seem to suggest that the district court
fundamentally disagreed with the Guidelines’ approach in
these cases. The court mentioned the seriousness of the
offense only to chastise the government for remaining firm in
its view that a term of imprisonment was warranted, see J.A.
63, and the court seemed to effectively reject any need for
third-party deterrence with its statement that "[a]nything at all
that happens to make him pay money affords some deterrence
to criminal conduct," J.A. 63 (emphasis added).
We recognize that in the post-Booker sentencing world,
district courts must give due consideration to relevant policy
statements, but those policy statements are no more binding
than any other part of the Guidelines. Accordingly, district
courts may "vary from Guidelines ranges based solely on pol-
icy considerations, including disagreements with the Guide-
lines." United States v. Kimbrough, 552 U.S. 85, 101 (2007)
(internal quotation marks and alteration omitted). Nonethe-
less, "when a non-Guidelines sentence runs directly counter to
the Commission’s position, either because the district court
12 UNITED STATES v. ENGLE
has erroneously applied the departure provisions or because it
has determined in a ‘mine-run case’ that the Guidelines range
fails to reflect the § 3553(a) factors, "‘closer review may be
in order.’" Evans, 526 F.3d at 165 n.4 (quoting Kimbrough,
552 U.S. at 109). If "closer review" of a district court’s policy
disagreement is ever warranted, we believe it would be appro-
priate in this case. Nonetheless, given the facts of the case and
the degree of the variance, we find the record insufficient to
permit even the routine review for procedural reasonableness
required in cases involving an outside-the-Guidelines sen-
tence. See Gall, 552 U.S. at 50 (explaining that if the sentenc-
ing judge "decides that an outside-Guidelines sentence is
warranted, he must consider the extent of the deviation and
ensure that the justification is sufficiently compelling to sup-
port the degree of the variance. We find it uncontroversial that
a major departure should be supported by a more significant
justification than a minor one."); cf. Rita, 551 U.S. at 356-57
("[W]hen a judge decides simply to apply the Guidelines to
a particular case, doing so will not necessarily require lengthy
explanation.").
This case is a "mine-run" tax-evasion case only in the most
generous (to Engle) understanding of that phrase. Engle
evaded his tax responsibilities for sixteen years, altered tax
returns prepared by his accountants, directed that income to
him be paid to shell corporations in an effort to avoid with-
holding and reporting requirements, and lied to the IRS about
the existence of these corporate accounts.2 Yet, with facts that
could perhaps be viewed as warranting an above-Guidelines
2
These facts make it difficult to accept the district court’s characteriza-
tion of the offense and Engle’s conduct as merely reflecting "money man-
agement" problems. The post-Booker level of deference that must be
accorded to a district court’s sentencing decisions, of course, does not
insulate the court’s factual findings from appellate review. See Gall, 552
U.S. at 51 (explaining that a district court makes a procedural error if it
"select[s] a sentence based on clearly erroneous facts"); see also United
States v. Harvey, 532 F.3d 326, 336-37 (4th Cir. 2008) ("In assessing
whether a sentencing court properly applied the Guidelines, we review the
court’s factual findings for clear error and its legal conclusions de novo.
Clear error occurs when, although there is evidence to support it, the
reviewing court on the entire evidence is left with the definite and firm
conviction that a mistake has been committed." (citations and internal quo-
tation marks omitted)).
UNITED STATES v. ENGLE 13
sentence, the district court imposed a significantly below-
Guidelines sentence, based on views that are at odds with the
clearly expressed policy views of the Sentencing Commis-
sion. The district court did not acknowledge the policy state-
ments, and there is nothing in the statements made by the
court during sentencing that offer any insight into why the
court believed that a prison term was not required. There is no
explanation of why the court believed that allowing Engle to
continue to work and travel was consistent with the serious-
ness of his offense or that it would provide adequate deter-
rence for other would-be tax evaders. Moreover, as noted
above, for more than four years after pleading guilty to tax
evasion, Engle continued to work and travel, yet he paid
nothing towards his tax debt. It was not until two weeks
before the second sentencing hearing that Engle made the first
payment (of less than $500), and even that nominal payment
was spurred on by an inquiry from the IRS. The absence of
any payments during a time when there is the greatest incen-
tive for a defendant to be on his best behavior raises questions
about the district court’s belief that restitution would provide
sufficient deterrence to Engle himself.
Under these circumstances, we cannot determine whether
the sentence is reasonable without a fuller explanation of the
reasoning behind the district court’s view that a term of
imprisonment as recommended by the Guidelines was not
warranted and why restitution alone would provide adequate
deterrence in this case.3 See Gall, 552 U.S. at 50 (noting that
district court "must make an individualized assessment based
on the facts presented"). Because the district court’s explana-
tion of its decision to vary significantly from the Guidelines’
3
Engle’s failure to make any significant payment on his tax debt during
the four-year period before sentencing likewise raises questions about the
district court’s refusal to order full restitution, an order that would carry
with it significant benefits from the government’s perspective with regard
to collection and enforcement. On remand, the district court should recon-
sider this issue and provide a more detailed explanation should it again
conclude that a restitution order is not required.
14 UNITED STATES v. ENGLE
sentencing recommendation is insufficient to permit meaning-
ful appellate review, we must vacate the sentence and remand
for new sentencing further proceedings.
B.
Although the procedural deficiencies addressed above
require us to vacate the sentence, we believe it proper to
address a substantive aspect of the district court’s sentence
that may arise on remand — the court’s near-exclusive focus
on Engle’s financial ability to pay restitution. See United
States v. Cavera, 550 F.3d 180, 191 (2d Cir. 2008) (en banc)
("At the substantive stage of reasonableness review, an appel-
late court may consider whether a factor relied on by a sen-
tencing court can bear the weight assigned to it.").
It may well be that, in many cases, the sentencing decision
will ultimately turn on a single § 3553(a) factor — for exam-
ple, when most of the factors point only lightly in favor of a
Guidelines or variance sentence, but one factor points very
strongly towards one sentence or the other. And we can envi-
sion cases where the ability to pay restitution might properly
be the deciding factor leading to a probationary sentence. For
example, if the Guidelines calculation yields a short sentenc-
ing range, a district court might well elect a probationary sen-
tence in order to permit the defendant to continue working so
as to satisfy a restitution award, particularly if the restitution
is owed to a private party. In such cases, the deference owed
to district courts’ sentencing decisions might require appellate
courts to affirm the sentence, even if the appellate court
would have weighed the factors differently. See Gall, 552
U.S. at 51 (requiring appellate courts to "give due deference
to the district court’s decision that the § 3553(a) factors, on a
whole, justify the extent of the variance"); Cavera, 550 F.3d
at 189, 191 ("[W]e will not substitute our own judgment for
the district court’s on the question of what is sufficient to
meet the § 3553(a) considerations in any particular case," and
"we do not consider what weight we would ourselves have
UNITED STATES v. ENGLE 15
given a particular factor."). Nonetheless, "inherent in the con-
cept of reasonableness is the notion that the rare sentence may
be unreasonable, and inherent in the idea of discretion is the
notion that it may, on infrequent occasion, be abused." Abu
Ali, 528 F.3d at 266 (citation and internal quotation marks
omitted). And in this case, we believe the district court abused
its discretion by focusing so heavily on Engle’s ability to pay
restitution.
The district court made it clear that, but for Engle’s earning
capacity, it would have imposed a within-Guidelines sentence
of imprisonment: "[A]bsent the apparent ability to generate
the income, I would simply impose a Guideline sentence and
be done with it." J.A. 31e. In fact, other statements suggested
that the district court believed not simply that Engle’s pay-
ment of his tax debt was desirable, but that it was improper
for the government to seek anything other than restitution. See
J.A. 60 (asking the government whether the government
wanted "blood or money"); J.A. 63 ("I’m concerned that I’m
not hearing any effort to try to balance this out other than let’s
put him in jail and take away his livelihood, which will
destroy the ability of the government to collect the money. I
don’t see how that necessarily promotes respect for the law.").
Reduced to its essence, the district court’s approach means
that rich tax-evaders will avoid prison, but poor tax-evaders
will almost certainly go to jail. Such an approach, where
prison or probation depends on the defendant’s economic sta-
tus, is impermissible. That was the consistent view of courts
before Booker and its progeny. See, e.g., United States v.
DeMonte, 25 F.3d 343, 347 (6th Cir. 1994) ("[W]e may not
sentence a poor convict more harshly than a rich convict sim-
ply because the rich convict is better able to make restitu-
tion."); United States v. Bolden, 889 F.2d 1336, 1340 (4th Cir.
1989) ("[W]e do not think that the economic desirability of
attempting to preserve [the defendant’s] job so as to enable
him to make restitution warrants a downward adjustment from
the guidelines."); cf. U.S.S.G. § 5H1.10, p.s. (forbidding con-
16 UNITED STATES v. ENGLE
sideration of defendant’s socio-economic status as a basis for
departure).
While Booker and Gall have worked a substantial change
in the manner in which sentencings are conducted and have
vested district courts with substantially broader discretion
than they possessed under the former sentencing regime, we
do not believe the change wrought by Booker was so great
that it permits district courts to rest a sentencing decision
exclusively on such constitutionally suspect grounds. See
Bearden v. Georgia, 461 U.S. 660, 661 (1983) (noting the
"impermissibility of imprisoning a defendant solely because
of his lack of financial resources"); United States v. Seacott,
15 F.3d 1380, 1389 (7th Cir. 1994) ("Allowing sentencing
courts to depart downward based on a defendant’s ability to
make restitution would thwart the intent of the guidelines to
punish financial crimes through terms of imprisonment by
allowing those who could pay to escape prison. It would also
create an unconstitutional system where the rich could in
effect buy their way out of prison sentences."); cf. United
States v. Tomko, 562 F.3d 558, 570 (3d Cir. 2009) (en banc)
(post-Gall case affirming probationary sentence in tax evasion
case; rejecting the government’s claim that the district court
permitted the defendant "to buy his way out of prison"
because "the record exhibits no connection between the fine
imposed and the failure to incarcerate").
We do not mean to suggest that the economic status of a
defendant is never relevant in sentencing. It is certainly rele-
vant when setting the amount of a fine or establishing a pay-
ment schedule, and it may well have relevance in other ways
in other cases. And while we recognize the broad discretion
possessed by district courts with regard to sentencing matters,
we have no difficulty concluding that in this case, the district
court abused that discretion. Accordingly, we conclude that
the sentence imposed by the district court was substantively
unreasonable because the sentencing decision was driven
solely by Engle’s ability to pay restitution.
UNITED STATES v. ENGLE 17
III.
To summarize, we conclude that the district court commit-
ted significant procedural error by minimizing of the serious-
ness of Engle’s conduct, failing to consider the relevant policy
statements and the need for general deterrence, and insuffi-
ciently explaining the reasons for its view that a term of
imprisonment was not required. We also conclude that the
sentence imposed was substantively unreasonable because of
the district court’s improper focus on Engle’s financial ability
to pay restitution. Accordingly, we hereby vacate Engle’s sen-
tence and remand for further proceedings before a different
district court judge.4
VACATED AND REMANDED
4
The district judge in this case also presided over the tax-evasion trials
and sentencings in United States v. Baucom, No. 08-4493, and United
States v. Davis, No. 08-4512, cases that, though not formally consolidated
with this case, were argued before this court seriatim with this appeal. In
the sentencing hearing for Davis, the district judge, who has taken senior
status, stated that he no longer intended to handle criminal matters.