United States v. Gardellini

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 12, 2008 Decided November 14, 2008

No. 07-3089

UNITED STATES OF AMERICA,
APPELLANT

v.

GUS GARDELLINI, ALSO KNOWN AS CARLOS GUSTAVO
GARDELLINI,
APPELLEE

Appeal from the United States District Court
for the District of Columbia
(No. 06cr00355-01)

Nathan J. Hochman, Assistant Attorney General, U.S.
Department of Justice, argued the cause for appellant. With
him on the briefs were Jeffrey A. Taylor, U.S. Attorney, and
Alan Hechtkopf, Attorney. Roy W. McLeese III, Assistant
U.S. Attorney, entered an appearance.

David Schertler argued the cause for appellee. With him
on the brief were David Dickieson and Peter V. Taylor.

Before: BROWN and KAVANAUGH, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.
 2

Opinion for the Court filed by Circuit Judge
KAVANAUGH, in which Circuit Judge BROWN joins.

Dissenting Opinion filed by Senior Circuit Judge
WILLIAMS.

KAVANAUGH, Circuit Judge: 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.

I

Gus Gardellini pled guilty to filing a false income tax
return in violation of 26 U.S.C. § 7206(1). Given Gardellini’s
offense and offender characteristics, the applicable advisory
Guidelines range was 10 to 16 months of imprisonment.
 3
Gardellini asked the District Court for a below-
Guidelines sentence, arguing that he had offered extraordinary
cooperation by providing information to investigators,
waiving his attorney-client privilege, and agreeing to toll the
statute of limitations. Gardellini also emphasized that he had
paid restitution before sentencing and that his crime occurred
almost ten years earlier. The Government responded by
contending that Gardellini had provided little information, had
waived no rights of consequence, and had simply complied
with the terms of his plea agreement by providing restitution.

At sentencing, the court acknowledged the advisory
Guidelines range, which was 10 to 16 months of
imprisonment. Hr’g Tr. 45-46, June 29, 2007. Turning to the
other 18 U.S.C. § 3553(a) factors, the District Court
emphasized four primary points. First, the court stated that
Gardellini had cooperated with authorities and accepted
responsibility for his crimes. See id. at 48 (defendant “didn’t
put the United States through its paces” but had “owned up to
[his] crime”). Second, the court found that Gardellini posed
only a minimal risk of recidivism. Id. (“I have every reason
to credit your statement . . . when you say that this will never
happen again.”). Third, the court concluded that Gardellini
had already “suffered substantially” due to his prosecution, id.
at 50, noting that Gardellini had been treated for “depression
due to the stress of the instant investigation,” id. at 45.
Finally, the court said that “what really deters” tax evaders –
at least in cases that do not “get a lot of press” – is “the efforts
of prosecutors . . . in vigorously enforcing the laws.” Id. at
56.

After considering the relevant § 3553(a) factors, the
District Court chose not to sentence Gardellini to any prison
time. Instead, the Court imposed a fine of $15,000 and
probation of five years, subject to certain conditions, to be
 4
spent in Belgium, where Gardellini resides with his wife and
child.

The Government appealed, arguing that Gardellini’s
sentence is substantively unreasonable under Booker v. United
States, 543 U.S. 220 (2005), and Gall v. United States, 128 S.
Ct. 586 (2007).

II

A

The Sentencing Guidelines establish a base offense level
for the crime of conviction. Under the Guidelines, the district
court may increase the defendant’s base offense level if the
judge finds certain specified offense or offender
characteristics. As originally enacted by Congress, the
Guidelines were mandatory and binding law. See 18 U.S.C.
§ 3553(b)(1).

In United States v. Booker, however, the Supreme Court
interpreted the Sixth Amendment to mean that a defendant’s
maximum sentence may not be increased as a result of factual
findings made by the sentencing judge rather than by the jury.
543 U.S. 220 (2005); see also Blakely v. Washington, 542
U.S. 296 (2004); Apprendi v. New Jersey, 530 U.S. 466
(2000). The Court ruled that the Sentencing Guidelines
therefore violate the Sixth Amendment.

To remedy the constitutional flaw, the Booker Court
could have retained the mandatory nature of the Guidelines
and required that the jury rather than the trial judge find any
sentencing facts necessary to increase a defendant’s base
offense level. But the Court, over the dissent of four Justices,
rejected that proposed remedy. Instead, the Court rendered
 5
the entire Guidelines system “advisory” rather than
mandatory. Booker, 543 U.S. at 245. Therefore, the
Guidelines are no longer binding law, but rather are one factor
that a district court must consider when imposing a sentence.1

1
Section 3553(a) reads as follows:

The court shall impose a sentence sufficient, but not greater
than necessary, to comply with the purposes set forth in paragraph
(2) of this subsection. The court, in determining the particular
sentence to be imposed, shall consider—
(1) the nature and circumstances of the offense and the history
and characteristics of the defendant;
(2) the need for the sentence imposed—
(A) to reflect the seriousness of the offense, to promote
respect for the law, and to provide just punishment for the
offense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the
defendant; and
(D) to provide the defendant with needed educational or
vocational training, medical care, or other correctional
treatment in the most effective manner;
(3) the kinds of sentences available;
(4) the kinds of sentence and the sentencing range established
for—
(A) the applicable category of offense committed by the
applicable category of defendant as set forth in the
guidelines—
...
(5) any pertinent policy statement—
...
(6) the need to avoid unwarranted sentence disparities among
defendants with similar records who have been found guilty of
similar conduct; and
(7) the need to provide restitution to any victims of the
offense.
 6
As a result, appeals courts do not substantively review
sentences to ensure conformity with the Guidelines. Rather,
appellate courts employ an abuse-of-discretion standard and
substantively review sentences only for “unreasonableness.”
Booker, 543 U.S. at 264.2

Applying that standard of review in post-Booker cases,
the Supreme Court has emphasized the discretion of district
courts to sentence within or outside the Guidelines – and has
stressed the corresponding need for appellate court deference
regardless of whether a sentence is within or outside the
Guidelines. In Rita v. United States, for example, the Court
ruled that appeals courts may apply a presumption of
reasonableness to sentences within the Guidelines – the
upshot being that a within-Guidelines sentence will almost
never be reversed on appeal as substantively unreasonable.
See 127 S. Ct. 2456, 2468-69 (2007); see also United States v.
Law, 528 F.3d 888, 902 (D.C. Cir. 2008) (adopting
presumption of reasonableness for within-Guidelines

2
Importantly, Gall v. United States distinguished two kinds of
appellate sentencing review: procedural and substantive. 128 S.
Ct. 586 (2007). As to procedure, appellate courts must ensure that
the sentencing court: (1) did not improperly calculate or fail to
calculate the applicable Guidelines range, (2) did not treat the
Guidelines as mandatory, (3) did not fail to consider the 18 U.S.C.
§ 3553(a) factors, (4) did not select a sentence based on “clearly
erroneous facts,” and (5) did not fail to “adequately explain the
chosen sentence,” including any deviation from the Guidelines
range. Id. at 597. As a procedural matter, therefore, the district
court must initially calculate the correct Guidelines range. But the
court then may impose a sentence outside that range, and the
appellate court’s substantive review of the sentence is only for
“unreasonableness.”
 7
sentences).3 In Kimbrough v. United States, the Court held
that district courts are free in certain circumstances to
sentence outside the Guidelines based on policy
disagreements with the Sentencing Commission – and that
appeals courts must defer to those district court policy
assessments. 128 S. Ct. 558, 575 (2007). And most
importantly, in Gall v. United States, the Supreme Court
explained that appeals courts may not apply a “presumption
of unreasonableness” for outside-the-Guidelines sentences.
128 S. Ct. 586, 595 (2007). Nor, the Court said, do outside-
the-Guidelines sentences require a showing of
“‘extraordinary’ circumstances” or trigger any kind of
“proportional” appellate review anchored to the Guidelines.
Id. at 594-95. Those Guidelines-centric appellate approaches
would “come too close to creating an impermissible
presumption of unreasonableness.” Id. at 595.

Under these Supreme Court cases, the appellate court
should “consider the substantive reasonableness of the
sentence imposed under an abuse-of-discretion standard.”
Gall, 128 S. Ct. at 597. “When conducting this review, the
court will, of course, take into account the totality of the
circumstances, including the extent of any variance from the
Guidelines range. . . . It may consider the extent of the
deviation, but 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. (citation omitted). Applying these
principles of appellate deference, the Court in Gall upheld a
sentence of probation in a drug-dealing case where the
Guidelines range was 30 to 37 months.4
3
Our research has disclosed no case since Rita where an
appeals court has reversed a procedurally proper within-Guidelines
sentence as substantively unreasonable.
4
In a paragraph discussing the district court’s sentencing
responsibilities, the Gall Court explained that the district court must
 8

The substantive reasonableness inquiry that we must
conduct on appeal boils down to the following question: In
light of the facts and circumstances of the offense and
offender, is the sentence so unreasonably high or
unreasonably low as to constitute an abuse of discretion by
the district court? Analytical difficulty arises because
determining whether a sentence is unreasonably high or
unreasonably low raises a subsidiary question: Compared to
what? The Supreme Court has made crystal clear that the
Guidelines are not the sole or definitive benchmark for an
appeals court in assessing the substantive reasonableness of a
sentence. Moreover, the § 3553(a) factors that district courts
must consider at sentencing are vague, open-ended, and
conflicting; different district courts may have distinct
sentencing philosophies and may emphasize and weigh the
individual § 3553(a) factors differently; and every sentencing
decision involves its own set of facts and circumstances
regarding the offense and the offender. When all those points
are combined with our deferential abuse-of-discretion
standard of review, the result becomes evident: It will be the

start with the Guidelines as the “initial benchmark” and “must
consider the extent of the deviation and ensure that the justification
is sufficiently compelling to support 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.” 128 S. Ct. at
596-97. It is important to note that this paragraph of the Gall
opinion provided guidance to the district court. The appeals court,
by contrast is required to 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, and to apply the “deferential abuse-of-
discretion standard of review . . . to all sentencing decisions,” id. at
598. “[I]t is not for the Court of Appeals to decide de novo whether
the justification for a variance is sufficient or the sentence
reasonable.” Id. at 602.
 9
unusual case when an appeals court can plausibly say that a
sentence is so unreasonably high or low as to constitute an
abuse of discretion by the district court. To be sure, there is
still substantive review of sentences; the Supreme Court has
not adopted Justice Scalia’s suggestion to completely
eliminate substantive appellate review. See Gall, 128 S. Ct. at
602-03 (Scalia, J., concurring). But our substantive
reasonableness review is deferential and not tied to the
Guidelines alone, as the post-Gall jurisprudence in the courts
of appeals amply demonstrates.5

5
See, e.g., United States v. Thurston, 544 F.3d 22 (1st Cir.
2008) (affirming three-month sentence, constituting time served,
and supervised release where applicable Guidelines sentence was
60 months); United States v. Howe, 543 F.3d 128 (3d Cir. 2008)
(affirming probationary sentence where applicable Guidelines range
was 18 to 24 months); United States v. Evans, 526 F.3d 155 (4th
Cir. 2008) (affirming 125-month sentence where applicable
Guidelines range was 24 to 30 months); United States v. Pauley,
511 F.3d 468 (4th Cir. 2007) (affirming 42-month sentence where
applicable Guidelines range was 78 to 97 months); United States v.
Duhon, 541 F.3d 391 (5th Cir. 2008) (affirming probationary
sentence where applicable Guidelines range was 27 to 33 months of
imprisonment); United States v. Vowell, 516 F.3d 503 (6th Cir.
2008) (affirming 780-month sentence where applicable Guidelines
range was 188 to 235 months and applicable mandatory minimum
was 300 months); United States v. McIntyre, 531 F.3d 481 (7th Cir.
2008) (affirming 144-month sentence where applicable Guidelines
range was 37 to 46 months); United States v. Austad, 519 F.3d 431
(8th Cir. 2008) (affirming 84-month sentence when applicable
Guidelines range was 37 to 46 months); United States v. Ruff, 535
F.3d 999 (9th Cir. 2008) (affirming one-day prison term and
supervised release where applicable Guidelines range was 30 to 37
months); United States v. Smart, 518 F.3d 800 (10th Cir. 2008)
(affirming 120-month sentence where applicable Guidelines range
was 168-210 months); cf. United States v. Cutler, 520 F.3d 136 (2d
Cir. 2008) (finding 366-day sentence with supervised release
 10

With that background, we turn to Gardellini’s case.

B

The Government acknowledges that the District Court
committed no procedural error in imposing the sentence in
this case – a deliberate concession the Government expressly
repeated multiple times at oral argument. See Oral Arg. at
7:08-16, 20:36-45, Sept. 12, 2008; cf. In re Sealed Case, 527
F.3d 188 (D.C. Cir. 2008) (vacating and remanding sentence
due to procedural error). Instead, the Government posits that
Gardellini’s sentence of probation was substantively
unreasonable under Booker and Gall.6

substantively unreasonable where applicable Guidelines range was
78 to 97 months); United States v. Abu Ali, 528 F.3d 210 (4th Cir.
2008) (finding 30-year sentence for terrorism-related offenses
substantively unreasonable where applicable Guidelines range was
life imprisonment); United States v. Pugh, 515 F.3d 1179 (11th Cir.
2008) (finding probation for child pornography possession
substantively unreasonable where the applicable Guidelines range
was 97 to 120 months); David C. Holman, Note, Death by a
Thousand Cases: After Booker, Rita, and Gall, the Guidelines Still
Violate the Sixth Amendment, 50 WM. & MARY L. REV. 267, 298-
300 (2008) (arguing that a few circuits are improperly preserving a
form of proportionality review even after Gall).
6
Judge Williams contends that the distinction between
procedural and substantive review “is irrelevant here.” Dissenting
Op. at 2. But Gall specifically indicates that appellate courts
“must” and “should” divide the sentencing review process into
procedural and substantive phases. Gall, 128 S. Ct. at 597. As the
Supreme Court has made clear, the procedural requirement that the
district court “consider” a particular § 3553(a) factor does not
depend on how heavily the court weighs that factor. Compare Gall,
128 S. Ct. at 598-600 (noting repeatedly as part of its procedural
review analysis that the District Court “did consider” or
 11

The Government’s argument flies in the face of the
Supreme Court’s precedents. The District Court found that
Gardellini had cooperated with authorities and accepted
responsibility for his crimes to an extraordinary degree, posed
no risk of recidivism, and already suffered substantially due to
the criminal investigation into his wrongful actions. See Hr’g
Tr. 48-50. Those findings were directly relevant to the
§ 3553(a) analysis, which requires sentences to reflect, among
other things, “the history and characteristics of the
defendant,” the need to “protect the public from further
crimes of the defendant,” the need to “provide just

“considered” various § 3553(a) factors), with id. at 600, 602 (noting
twice under its substantive review analysis that the District Court
“quite reasonably attached great weight” to one or another
§ 3553(a) factor); see also In re Sealed Case, 527 F.3d at 191 (“a
district judge need not consider every § 3553(a) factor in every
case, and we generally presume the judge ‘knew and applied the
law correctly’”) (quoting United States v. Godines, 433 F.3d 68, 70
(D.C. Cir. 2006)). And once the procedural question has been
resolved, “the only question for the Court of Appeals” is the
substantive question of “whether the sentence was reasonable – i.e.,
whether the District Judge abused his discretion in determining that
the § 3553(a) factors supported” the chosen sentence. Gall, 128 S.
Ct. at 600. At times, Judge Williams suggests that the District
Court committed the procedural error of not having “‘consider[ed]
all of the § 3553(a) factors,’” particularly the deterrence factor.
Dissenting Op. at 2 (quoting Gall, 128 S. Ct. at 596); see also Gall,
128 S. Ct. at 598. But the Government itself disclaimed any such
procedural argument. In any event, contrary to the dissent’s
suggestion, the District Court did consider the goal of deterrence,
expressly noting that that factor did not weigh heavily in this case.
See Hr’g Tr. 56, June 29, 2007. Judge Williams’s real objection
appears to be the substantive charge that the District Court did not
afford deterrence adequate weight and that the sentence is therefore
unreasonable.
 12
punishment for the offense,” and the need to “afford adequate
deterrence.” 18 U.S.C. § 3553(a)(1)-(2). The District Court’s
conclusion rests on precisely the kind of defendant-specific
determinations that are within the special competence of
sentencing courts, as the Supreme Court has repeatedly
emphasized. See Rita, 127 S. Ct. at 2469 (“The sentencing
judge has access to, and greater familiarity with, the
individual case and the individual defendant before him than
the Commission or the appeals court.”); see also Gall, 128 S.
Ct. at 597. In light of the facts and circumstances of the
offense and offender and the deference we must give the
District Court, we cannot say that the court abused its
discretion in giving Gardellini probation and a fine.

It bears mention that the Government’s argument is
inconsistent not only with the Supreme Court’s analytical
approach, but also with the result in Gall. In that case, the
Supreme Court affirmed a sentence of probation even though
Gall faced a 30-to-37-month Guidelines range for his drug-
dealing offense – far greater than the 10-to-16-month range
for Gardellini. In light of the fact that the Supreme Court
affirmed a sentence of probation for Gall, who committed a
more serious offense and faced a higher Guidelines range, it is
all but impossible to say that a sentence of probation is per se
unreasonable for Gardellini.

The Government contends more generally that upholding
the light sentence in this case will lessen the deterrent value of
the criminal law. If so, that is the result of Supreme Court
precedents such as Gall that we are bound to follow.
Moreover, the Government’s argument based on deterrence
alone is flawed because it elevates one § 3553(a) factor –
deterrence – above all others. As § 3553(a) makes clear,
however, the district court at sentencing must consider and
balance a number of factors – not all of which will point in
 13
the same direction. In any event, we question the force of the
Government’s deterrence argument, even when it is
considered in isolation. Although Gardellini may have been
treated leniently, the next similarly situated tax offender
cannot expect the same treatment. Another defendant in this
same situation might well receive an above-Guidelines
sentence. In light of the discretion afforded to district courts
by the Supreme Court’s sentencing decisions, only a fool
would think that he or she necessarily would receive the same
sentence as Gardellini for a similar tax offense.

C

The fundamental problem with the Government’s
submission in this case is that it takes insufficient account of
the big picture of current sentencing jurisprudence. The
central teaching of Gall is that the Guidelines are truly
advisory. Therefore, different district courts can and will
sentence differently – differently from the Sentencing
Guidelines range, differently from the sentence an appellate
court might have imposed, and differently from how other
district courts might have sentenced that defendant. And
appellate courts may not reverse a district court simply
because the Sentencing Commission, a reviewing appellate
court, or another district court “might reasonably have
concluded that a different sentence was appropriate.” Gall,
128 S. Ct. at 597.

To be sure, it may be considered anomalous that the
Supreme Court’s chosen remedy for a Guidelines system that
gave district judges too much power to find key sentencing
facts was to give district judges even more discretion and
authority. See Michael W. McConnell, The Booker Mess, 83
DENV. U. L. REV. 665, 677 (2006) (“The most striking feature
of the Booker decision is that the remedy bears no logical
 14
relation to the constitutional violation.”); see also Richard M.
Ré, Re-Conceptualizing Booker: How to Prevent Legislatures
From Circumventing the Right to Jury Trial 6-38 (Sept. 25,
2008) (available on SSRN). But that’s water over the dam.
The bottom line is this: District judges now have far more
substantive discretion in sentencing than they had pre-Booker.
Therefore, whether the defendant receives a sentence within,
above, or below the Guidelines range, both the Government
and defense counsel would be well-advised to understand that
it will be an unusual case where an appeals court overturns a
sentence as substantively unreasonable – as the post-Rita,
post-Gall case law in the courts of appeals shows.

This new sentencing regime inevitably will lead to
sentencing disparities and inequities that can be explained by
little more than the identities of the sentencing judges.
Unpredictability and uncertainty in sentencing no doubt will
ensue. See Gall, 128 S. Ct. at 604-05 (Alito, J., dissenting);
In re Sealed Case, 527 F.3d at 199 (Kavanaugh, J.,
dissenting); United States v. Shy, 538 F.3d 933, 939-40 (8th
Cir. 2008) (Colloton, J., concurring). But the Supreme Court
recognized those consequences to some degree in Booker and
Kimbrough. See Kimbrough, 128 S. Ct. at 574; Booker, 543
U.S. at 263-65. And it is not our role to fight a rear-guard
action to preserve quasi-mandatory Guidelines. To the extent
the post-Booker federal sentencing system is unwise or
inequitable – or becomes a roll of the dice that depends too
much on the sentencing judge – those concerns must be
addressed by the Congress and the President, who have the
authority to produce new legislation. After all, as the
remedial decision in Booker made plain and as Justice Souter
more recently reiterated in Gall, the Sixth Amendment
permits mandatory Sentencing Guidelines so long as the jury
rather than the judge finds the key sentencing facts used to
increase the defendant’s base offense level. See Booker, 543
 15
U.S. at 265 (“Ours, of course, is not the last word: The ball
now lies in Congress’ court. The National Legislature is
equipped to devise and install, long term, the sentencing
system, compatible with the Constitution, that Congress
judges best for the federal system of justice.”); Gall, 128 S.
Ct. at 603 (Souter, J., concurring) (“I continue to think that
the best resolution of the tension between substantial
consistency throughout the system and the right of jury trial
would be a new Act of Congress: reestablishing a statutory
system of mandatory sentencing guidelines (though not
identical to the original in all points of detail), but providing
for jury findings of all facts necessary to set the upper range
of sentencing discretion.”). The political branches thus retain
the power to re-balance the values of individualized
sentencing and district court discretion against the goals of
sentencing uniformity and predictability.

***

We affirm the judgment of the District Court.

So ordered.
 WILLIAMS, Senior Circuit Judge, dissenting: Happily for
the United States, most people pay their taxes. More happily,
most pay out of a sense of conscience and perhaps even public
spirit (plus IRS collection of W-2s and 1099s), with the threat
of fines and prison only rather remotely in the back of their
minds. There is, however, a set of taxpayers for whom these
motives are not strong enough to overcome the advantages of
cheating. Defendant Gardellini is one of them.

By means of offshore accounts, Gardellini deliberately
avoided income tax on capital gains from real estate, on
ordinary income from the exercise of stock options, and on
interest from those accounts, inflicting a $94,000 revenue loss
on the Treasury. He is not alone. The IRS estimates that tax
fraud on individual income tax returns generates revenue
losses of about $197 billion a year (not counting $25 billion in
losses from nonfiling). Internal Revenue Service, Reducing
the Federal Tax Gap: A Report on Improving Voluntary
Compliance 10 (Aug. 2, 2007), http://www.irs.gov/pub/irs-
news/tax_gap_report_final_080207_linked.pdf (2001 tax
year). Nonetheless, in 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.
 2

* * *

On appeal no presumption of reasonableness or
unreasonableness governs a non-Guidelines sentence, id. at
597; we review for abuse of discretion and owe the district
court’s judgment no more than “due deference,” id. Review
here might be complicated by the government’s apparent
renunciation at oral argument of any claim of procedural
irregularity. Tr. of Oral Arg. at 8. There is (for me at least)
some obscurity in the Supreme Court’s division of grounds for
reversal into procedural and substantive categories. Compare
Gall, 128 S. Ct. at 598 (considering as a possible procedural
error a district judge’s alleged failure “to give proper weight”
to a mandatory § 3553 factor), with id. at 601 (considering as
a possible substantive error a district judge’s alleged giving of
weight to an improper factor). But the distinction is irrelevant
here. Whatever counsel may have meant, he clearly did not
intend to throw away the government’s opening contention—
challenging the district court’s treatment of the deterrence
goal—which occupied about four of the 13 pages of its
opening brief’s “Argument” section.

Although imprecise, the abuse-of-discretion standard is
no mere rubberstamping. At a minimum, it includes making
sure the district judge “consider[ed] all of the § 3553(a)
factors to determine whether they support the sentence
requested by a party.” Id. at 596. When the district court’s
sentence is outside the advisory Guidelines range, as here, our
job is to review the sentence under “the totality of the
circumstances,” giving “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. Given the Gall Court’s
careful examination of the government’s claims of erroneous
factor weightings, see id. at 600-01, the panel’s formulation of
our appellate role—to determine whether “[i]n light of the
facts and circumstances of the offense and offender, is the
 3

sentence so unreasonably high or unreasonably low as to
constitute an abuse of discretion by the district court,” Maj.
Op. at 8—may be too narrow.

Here the district court appeared to deny any weight to the
statutory goal of deterring others from the commission of
similar crimes. 18 U.S.C. § 3553(a)(2)(B); see United States
v. Phinazee, 515 F.3d 511, 515–16 (6th Cir. 2008) (explaining
that deterrence within the meaning of § 3553(a)(2)(B)
encompasses deterrence not only of the defendant but also of
others).

As it does in this court, the government at sentencing
advocated a within-Guidelines term of imprisonment as a
means of deterring others from committing similar crimes.
Defense counsel recognized that the deterrence goal presented
a problem, acknowledging that “[t]he only factor that . . . is at
all persuasive in the government’s argument about why there
should be a sentencing guideline range sentence here[] is the
one of deterrence.” Appendix (“App.”) 119. Consequently,
defense counsel set out to “undermine[] the government’s
argument about deterrence,” explaining that “if you take away
that argument on deterrence, if you balance the [remaining]
3553 factors, a probationary sentence is entirely reasonable.”
Id. at 120.

The district court was evidently convinced that you could
“take away” deterrence, saying:

The deterrence, it’s not so much the sentence that this
court imposes—frankly, I don’t—you know, maybe this
will get a lot of press, I don’t know, I doubt it. But what
really deters is the efforts of prosecutors like this
Assistant U.S. Attorney in vigorously enforcing the laws
of the country, particularly in these tax cases.
 4

App. 136. In Gardellini’s non-newsworthy case, accordingly,
the court effectively dismissed the deterrent effect of a
sentence as irrelevant.

But deterrence is a primary consideration in choosing the
appropriate sentence for any tax crime, newsworthy or not.
As the Guidelines explain,

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.

U.S. Sentencing Guidelines Manual ch. 2, pt. T, introductory
cmt. (2007) (same language as in the 2000 edition, which was
used to calculate Gardellini’s advisory sentencing range).

The Guidelines’ generalization is quite sound. The
resources available for tax enforcement are scarce and the
probability of getting caught is low. In fact, for fiscal year
2007, the IRS audited only 1.03% of all individual returns.
Internal Revenue Service, Fiscal Year 2007 IRS Enforcement
and Service Statistics 3, http://www.irs.gov/pub/irs-
news/irs_enforcement_and_service_tables_fy_2007.pdf. The
IRS understandably doesn’t publish its criteria for singling out
returns that it will audit. Though Gardellini’s income
probably gave him a more-than-average likelihood of an audit,
the chance was still quite low. See id. at 4 (reporting the audit
statistic for those with incomes exceeding $100,000 and
$200,000 as 1.77% and 2.87%, respectively). Assuming an
audit risk of 3%, the $15,000 fine imposed had an ex ante
expected value of less than $500; taxpayers who are tempted
to cheat, and who observe Gardellini’s treatment, will find the
risk-reward ratio very attractive.
 5

In addition, Gardellini used offshore accounts to
completely conceal his liability-generating transactions.
Thus, nothing in the nature of what he disclosed gave an eye-
catching, audit-eliciting quality to the returns covering his
four years of tax fraud. And even if the IRS had audited his
returns, it was far less likely to know about unreported capital
and ordinary gains, and interest income, than in cases (for
example) of interest from domestic accounts, of which the
IRS learns via required disclosures from the payors
themselves. Here, as the government explained at sentencing,
it “learned about Mr. Gardellini’s foreign bank account only
because of an execution of a search warrant in an unrelated
case.” App. 103. In other words, Gardellini’s crime surfaced
solely because he had engaged in financial transactions with
somebody already under the tax authorities’ suspicion.

The district court’s explanation for disregarding
deterrence under § 3553(a)(2)(B) is at odds with the overall
sentencing scheme. Under Gall a district court judge is
obliged to “explain his conclusion that an unusually lenient or
an unusually harsh sentence is appropriate in a particular case
with sufficient justifications.” Gall, 128 S. Ct. at 594. The
duty of explanation, Gall reasoned, is “to allow for
meaningful appellate review and to promote the perception of
fair sentencing.” Gall, 128 S. Ct. at 597 (emphasis added);
see also In re Sealed Case, 527 F.3d 188, 191 (D.C. Cir.
2008) (quoting this language). The Court in Rita v. United
States, 127 S. Ct. 2456 (2007), also notes this link between
judicial explanation and public “perception,” observing:
“Confidence in a judge’s use of reason underlies the public’s
trust in the judicial institution. A public statement of those
reasons helps provide the public with the assurance that
creates the trust.” Id. at 2468.

The obvious premise here is that members of the public
get word of what goes on at sentencing. We may assume that,
 6

as is common in criminal sentencings, there was no press
coverage of Gardellini’s proceedings, and that the courtroom
audience was thin. But we have no real knowledge about how
information travels in the relevant audience—those inclined
toward tax cheating and seriously concerned at the margin
with the potential criminal consequences. Moreover, the
district court’s reliance on the absence of press coverage has a
troublesome flipside: if its logic is accepted, courts must give
deterrence a hefty weight for notorious defendants—as we
may be sure that word of their sentencings will get out—but
only for such defendants.

If, as the Supreme Court tells us, the explanation duty is
motivated in part by concern for public perceptions, surely a
district court cannot assume those perceptions away as a basis
for ditching a § 3553 factor. But that is precisely what the
majority’s holding allows.

It may be that after Kimbrough v. United States, 128
S. Ct. 558 (2007), the district court may excise a § 3553 factor
from the mix on policy or philosophical grounds. See id. at
574–75 (leaving the matter open). And basing a person’s
punishment on that punishment’s impact on other people
indeed raises ethical issues. See, e.g., James B. White,
Making Sense of the Criminal Law, 50 U. Colo. L. Rev. 1, 26
(1978). But such a reasoned philosophical viewpoint is quite
different from zeroing out deterrence on the basis of reasoning
that is inconsistent with the Supreme Court’s vision of the
scheme as a whole.

Thus, pace the panel opinion, it is not enough to say that
“the District Court did consider the goal of deterrence,
expressly noting that that factor did not weigh heavily in this
case.” Maj. Op. at 11 n.6. In light of the district court’s
explanation, giving deterrence no weight at all amounted to an
unreasonable weighing of the sentencing factors. We
 7

therefore cannot make a statement paralleling that of the
Supreme Court in Gall—that the district court “quite
reasonably attached great weight” to a particular factor, 128 S.
Ct. at 600; the district court did not “reasonably attach” great
weight to the emptiness of the courtroom and lack of press
coverage, and thus no weight to the interest in deterrence.

* * *

The district court’s decision was a textbook example of
an abuse of discretion, making Gardellini’s sentence
substantively unreasonable. I respectfully dissent from the
majority’s contrary conclusion.