United States v. Thurston

United States Court of Appeals
For the First Circuit
No. 05-2271

UNITED STATES OF AMERICA,

Appellant,

v.

WILLIAM THURSTON,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Mark L. Wolf, U.S. District Judge]

Before

Boudin, Chief Judge,

Lynch and Howard, Circuit Judges.

Michael K. Loucks, First Assistant United States Attorney,
with whom Michael J. Sullivan, United States Attorney, Dina Michael
Chaitowitz, Chief of Appeals, and Susan G. Winkler, Chief, Health
Care Fraud Unit, were on brief, for appellant.
Joseph P. Russoniello, with whom Matthew D. Brown and Cooley
Godward LLP were on brief, for appellee.
Daniel J. Popeo and Paul D. Kamenar, on brief for Washington
Legal Foundation and Allied Educational Foundation, Amici Curiae.
Miriam Conrad, Federal Public Defender and Judith Mitzner,
Assistant Federal Public Defender, on brief for The Federal Public
Defender for the Districts of Massachusetts, New Hampshire, and
Rhode Island, Amicus Curiae.

July 26, ,2006
 HOWARD, Circuit Judge. William Thurston was convicted of

conspiring to defraud Medicare of over $5,000,000. Although the

recommended sentence under the sentencing guidelines was 60 months'

imprisonment, the district court instead imposed a sentence of

three months' imprisonment. The government appeals, arguing that

the sentence is unreasonable. The relevant background is as

follows.

In 1998, Thurston was indicted for conspiring to commit

Medicare fraud. See 18 U.S.C. § 371. The indictment stemmed from

Thurston's activities in the late 1980s and early 1990s as an

executive for Damon Clinical Laboratories (Damon), a corporation

that supplied clinical laboratory testing services for health care

providers. Medicare reimburses clinical laboratories only for

services that are medically necessary for the treatment of the

beneficiary's illness or condition. 42 U.S.C. § 1395(a)(1)(A).

Thurston was indicted for conspiring with three others to

manipulate Damon's service options to encourage physicians to order

unnecessary tests for Medicare beneficiaries. In particular, the

indictment charged Thurston with conspiring to induce physicians to

order rarely needed tests for ferritin and apolipoprotein by making

them part of a battery of frequently ordered tests and informing

physicians, falsely, that the tests did not cost extra.

Prior to trial, the trial judge expressed skepticism

about the government's case. At an April 2000 status conference

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for codefendant Joseph Isola, Damon's president, the judge stated

that he would be inclined to impose a probationary sentence, even

if the government could gain a conviction. Aware that the judge

had more than once granted unappealable acquittals in similar

cases, the government viewed its likelihood of gaining convictions

and long sentences as remote. It therefore offered generous plea

agreements to each of the defendants. In exchange for a plea of

nolo contendere to a one-count information, the government offered

to dismiss the indictment and not to appeal the sentence imposed

(which the judge had indicated would not involve imprisonment).

Isola accepted the government's offer, but Thurston and

another codefendant declined.1 Thurston rejected the offer because

a guilty plea "would cause him to be shunned in the Mormon church."

At Isola's sentencing hearing, the government did not recommend a

sentence, and the judge imposed a three-year term of probation.

Subsequently, the trial of Thurston's remaining

codefendant ended when the judge entered a judgment of acquittal

pursuant to Fed. R. Crim. P. 29. In December 2001, Thurston was

convicted by a jury of conspiring to defraud Medicare by inducing

the unnecessary ordering of the ferritin test.2

1
In the interim, the fourth codefendant died.
2
The judge entered a Rule 29 judgment of acquittal on the
apolipoprotein charge.

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 Thurston was first sentenced in May 2002. Applying the

sentencing guidelines, the judge determined that the base offense

level was six, that Thurston intended to defraud Medicare of more

than $5,000,000 (a 14-level enhancement), that the crime involved

more than minimal planning (a two-level enhancement), and that

Thurston was an organizer or leader of extensive criminal activity

(a four-level enhancement). The judge denied Thurston's request

for an acceptance-of-responsibility adjustment and did not rule on

the government's request for an obstruction-of-justice enhancement.

The resulting adjusted offense level of 26 established a sentencing

range of 63 to 78 months, which was trumped by a 60-month statutory

maximum.

The judge departed from the guideline range and imposed

a sentence of three months' imprisonment and twenty-four months'

supervised release. He granted this departure for two reasons.

First, he found that imposing a 60-month sentence on Thurston would

result in an untoward disparity with the probationary sentence

imposed on Isola, whom the court characterized as "the prime

architect of the conspiracy." Second, he concluded that Thurston

had demonstrated a record of "extraordinary contributions and

service to society, and especially to his religious obligation."

Thurston appealed his conviction and the government

cross-appealed the sentence. We affirmed the conviction but

remanded for resentencing. See United States v. Thurston, 358 F.3d

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51 (1st Cir. 2004) (Thurston I). Under the federal sentencing

regime then in place, the sentencing court was required to impose

a guideline sentence unless a downward departure was permitted.3

See 18 U.S.C. § 3553(b). We concluded that the district court

erred by granting Thurston a downward departure so that his

sentence would be similar to Isola's. Thurston, 358 F.3d at 79.

We ruled that a departure could not be granted because of the

"perceived need to equalize sentencing outcomes for similarly

situated co-defendants . . . ." Id. We also concluded that the

court had improperly granted Thurston a downward departure because

of his good works. The guidelines permitted such departures only

in cases where the defendant's good works "were exceptional." Id.

at 78-79. While Thurston had a history of good works, such efforts

could not be deemed extraordinary in light of both the nature of

the offense and Thurston's status as a corporate executive with the

means to undertake significant charitable endeavors. Id. at 79-80.

We therefore remanded with instructions that the guideline sentence

of 60-months' imprisonment be imposed. Id. at 82.

Thurston filed a petition for a writ of certiorari with

the United States Supreme Court. While Thurston's petition was

pending, two relevant events occurred. First, the trial judge

recused himself because he could not impose the sentence

3
At that time, we reviewed decisions to grant downward
departures de novo. See 18 U.S.C. 3742(e), as amended by Pub. L.
No. 108-21, § 401.

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"prescribed by the Court of Appeals." Second, the Supreme Court

decided United States v. Booker, 543 U.S. 220 (2005), which

replaced the mandatory guideline regime with an advisory system.

The Supreme Court subsequently granted Thurston's petition, vacated

this court's judgment, and remanded for further consideration in

light of Booker. Thurston v. United States, 543 U.S. 1097 (2005).

After additional briefing, we remanded for resentencing and ordered

that the court consider whether an obstruction-of-justice

enhancement should be applied to Thurston's guideline range.

Following the reassignment of the case to the district

court judge who issued the sentence challenged in this appeal,

Thurston argued that he should receive the original sentence

imposed because "unwarranted disparities between codefendants" and

"good works" could be considered post-Booker. The government

responded that Thurston should receive the 60-month sentence

contemplated in Thurston I.

The district court expeditiously convened a hearing to

determine Thurston's sentence. It began its analysis by accepting

the findings made during Thurston's original sentencing and

concluded that an obstruction-of-justice enhancement was not

warranted.4 After determining that the recommended guideline

4
Thurston argues that the district court was wrong to accept
the enhancements imposed in the first sentencing on the ground that
Booker raises the standard of proof for imposing guidelines
enhancements from a preponderance of the evidence to beyond a
reasonable doubt. We have rejected this argument. E.g., United

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sentence was 60 months, the court considered whether a lower

sentence was appropriate under the sentencing factors set forth in

18 U.S.C. § 3553(a). Among these factors are the need for the

sentence to reflect the seriousness of the offense, to promote

respect for the law, to afford adequate deterrence, and to avoid

unwarranted sentence disparities among defendants who have similar

records and who have been found guilty of similar conduct. Id. §

3553(a)(2),(6).

The court began by finding that the disparity between

Isola's sentence and Thurston's recommended sentence was

unacceptable. As the court explained:

Giving the prime architect of the scheme in
this case [Isola] a sentence of probation and
giving Mr. Thurston a sentence of 60 months, as
the government advocates because he rejected a
similar deal and exercised his right to a
trial, would greatly injure respect for the law
unless the disparity is warranted by some
legitimate consideration.

Concluding that there were no material differences between Thurston

and Isola other than Thurston's decision to exercise his right to

a trial, the court ruled that this difference called for only a

modest increase in Thurston's sentence: three-months' imprisonment.

The court next considered whether imposing a three-month

sentence would adequately reflect the seriousness of Thurston's

crime. It again viewed Isola's plea agreement and the similar

States v. Yeje-Cabrera, 430 F.3d 1, 17 (1st Cir. 2005); United
States v. Antonakopoulos, 399 F.3d 68, 80 (1st Cir. 2005).

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offer to Thurston as the benchmark. According to the court,

"implicit in the Isola plea agreement, and the same agreement or

opportunity being offered to Mr. Thurston, was the government's

view that the probationary sentence was minimally adequate . . . to

reflect the seriousness of the offense." The court further

explained:

Medicare fraud . . is a serious crime. And
frequently . . . both the Guidelines and the
government's recommendations are too low in
white collar cases. However, the government's
plea bargain with Isola and the offer it made
to Mr. Thurston of . . . a probationary
sentence are evidence that even a probationary
sentence would adequately reflect the
seriousness of the offense in this case.

Finally, the court considered whether a three-month

sentence would adequately deter other potential white collar

criminals. It concluded that a short prison term was adequate to

serve this goal because "the most significant decision in sending

a message to potential white collar criminals is the decision to

send the defendant to prison. It's not so much the amount of time,

it's whether you go away."

After discussing the above-mentioned § 3553(a) factors,

the court sentenced Thurston to essentially the same sentence

initially imposed -- three months' imprisonment and 24 months'

supervised release.5 Because Thurston received credit for time

5
The court added a $25,000 fine which was not part of the
initial sentence.

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served, the sentence did not require Thurston to serve any

additional prison time.

The government appeals, arguing that the district court

placed too much emphasis on the disparity between Isola's and

Thurston's sentences. The government also argues that the court

unreasonably undervalued the seriousness of Thurston's offense and

the need to deter other white collar criminals.

Thurston's sentencing took place prior to our decision

prescribing the post-Booker sentencing process. See United States

v. Jimenez-Beltre, 440 F.3d 514, 518-19 (1st Cir. 2006) (en banc).

Nevertheless, the district court anticipated the correct procedural

approach. It calculated the applicable guideline range "before

deciding whether to exercise [its] new-found discretion to impose

a non-guidelines sentence" based on the § 3553(a) sentencing

factors. It also provided a detailed explanation of its reasons

for not imposing the recommended guidelines sentence. Id. The

dispute in this case centers not on the procedures employed, but on

the substantive conclusion.

In reviewing a particular sentence for reasonableness, we

stress the need "for a plausible explanation and a defensible

overall result." Id. at 519. We also believe that the guidelines

"remain[] an important consideration" in sentencing because they

"represent[] the only integration of the multiple [sentencing]

factors [set forth in § 3553(a)], often reflect past practice, and

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[bear] the imprimatur of the [Sentencing Commission], [the] expert

agency charged with developing them." United States v. Smith, 445

F.3d 1, 4 (1st Cir. 2006). Thus, we consider the reasonableness of

a below-guideline sentence on a sliding scale: "the farther the

judge's sentence departs from the guidelines sentence the more

compelling the justification based on the factors in § 3553(a)

that the judge must offer . . . ." Id. (quoting United States v.

Dean, 414 F.3d 725, 729 (7th Cir. 2005)).

Here, the district court imposed a sentence 95% below the

incarceration period recommended by the guidelines for essentially

three reasons: (1) Thurston should receive a sentence close to

Isola's because they are similarly situated codefendants and a wide

disparity in their sentences would punish Thurston for electing to

go to trial; (2) Thurston's offense was not terribly serious, as

evidenced by the government's pretrial plea offer of a probationary

sentence; and (3) a short prison term serves the interest of

general deterrence because white collar criminals typically are

more concerned about whether they will be sent to prison than the

length of imprisonment. The court approached Thurston's sentencing

with characteristic thoroughness and without the benefit of our

recent decisions applying Booker. We are constrained, however, to

conclude that these reasons do not warrant the major variance

challenged in this case.

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 We begin by considering the disparity between Isola and

Thurston. In the pre-Booker era, codefendant disparities could not

support a sentence below the guideline range. See United States v.

Wogan, 938 F.2d 1446, 1448 (1st Cir. 1991). But after Booker "that

a factor [was] discouraged or forbidden under the guidelines does

not automatically make it irrelevant when a court is weighing the

statutory factors apart from the guidelines." Smith, 445 F.3d at

5. That said, since Booker, we have observed that § 3553(a)(6) --

the factor relating to sentencing disparities -- was "almost

certainly" enacted by Congress to encourage "a national uniformity

focusing upon a common standard and looking to how most cases of

the same kind were treated." United States v. Saez, 444 F.3d 15,

18 (1st Cir. 2006); see also United States v. Navedo-Concepcion, --

F.3d--, 2006 WL 1575573, at *5 (1st Cir. Jun. 9, 2006) ("Congress's

concern with disparities was mainly national"); Smith, 445 F.3d at

5 ("Congress' goal of equality primarily envisions a national

norm"). Thus, one possible problem with the court's rationale was

the emphasis on disparities between codefendants without giving

significant consideration to encouraging nationwide uniformity in

sentencing -- the primary focus of § 3553(a)(6). But, even if the

emphasis on codefendant disparity was appropriate, Isola and

Thurston were not so similarly situated that nearly identical

sentences were warranted. See United States v. Ortiz-Torres, --

F.3d--, 2006 WL 1452683, at *17 (1st Cir. 2006). In our view, the

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district court undervalued the fact that Isola pleaded nolo

contendere.

"Plea bargaining flows from the mutuality of advantage to

defendants and prosecutors, each with his own reasons for wanting

to avoid trial." Bordenkircher v. Hayes, 434 U.S. 357, 363 (1978).

In order to gain a conviction without risking an unsuccessful

trial, prosecutors frequently discount the sentence they offer in

a plea bargain by the probability of loss. See Albert W. Aschuler,

The Prosecutor's Role in Plea Bargaining, 36 U. Chi. L. Rev. 50,

58-60 (1968) (stating that "the overwhelming majority of

prosecutors view the strength or weakness of the state's case as

the most important factor in the task of bargaining"); Stephanos

Bibas, Plea Bargaining Outside the Shadow of Trial, 117 Harv. L.

Rev. 2463, 2470 (1994) ("The strength of the prosecution's case is

the most important factor" in plea bargaining).

The record supports the government's argument that this

is why Isola and Thurston were offered such favorable plea

agreements. As noted above, the trial judge expressed doubts about

the government's case and an inclination to impose a probationary

sentence even if the government gained a conviction. Moreover,

the government believed that the trial judge had a history of

granting acquittals in similar cases.

Thurston had the opportunity to accept this offer but

declined. Thurston's decision to go to trial entailed the risk of

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a stiffer post-conviction punishment. See Yeje-Cabrera, 430 F.3d

1, 25 (1st Cir. 2005). This is so because "after trial, the

factors that may have indicated leniency as a consideration for the

guilty plea are no longer present." Alabama v. Smith, 490 U.S.

794, 801 (1989). Once Thurston elected to go trial, he was no

longer situated similarly to Isola. The primary factor that led to

Isola's light sentence -- the government's concern that it would

not prevail at trial -- was no longer present.

The district court declined to consider this distinction

material because, in its view, imposing a substantially harsher

penalty on Thurston would impose a burden on Thurston's exercise of

his constitutional right to a jury trial.6 The law does not

support this conclusion. "The fact that the defendant who pleads

gets a benefit over those who go to trial and are convicted is a

necessary artifact of any plea bargaining regime. The law long ago

determined that there was nothing . . . illegal about any burden on

trial rights caused by such a differential." Yeje-Cabrera, 430

F.3d at 25. In short, there was too much emphasis placed on

Isola's sentence in determining the appropriate imprisonment period

for Thurston. Cf. Navedo-Concepcion, 2006 WL 1575573, at *5.

(concluding that the district court was reasonable in sentencing a

defendant who went to trial to a longer sentence than codefendants

6
The court did conclude that a small increase in Thurston's
sentence was appropriate because his decision to go to trial caused
additional expenditures by the government.

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who pleaded guilty because "defendants who plead guilty often get

. . . lower sentences").

We turn next to whether a three-month sentence adequately

reflected the seriousness of Thurston's crime. In considering this

sentencing factor, the district court indicated that it agreed with

our observation in Thurston I that "[h]ealth care fraud is a

serious crime and the federal interest in combating it is

powerful." 358 F.3d at 81. Nevertheless, the court concluded that

a three-month sentence was appropriate because it represented the

government's view of the seriousness of the offense. To reach this

conclusion, the court relied on a sentencing guideline policy

statement requiring that plea negotiation practices be conducted to

"promote the statutory purposes of sentencing prescribed in 18

U.S.C. § 3553(a)." U.S.S.G. Part B, Intro. Comment. The court

interpreted this policy statement to mean that, whenever the

government offers a plea bargain, it is implicitly certifying that

the proposed sentence adequately reflects the seriousness of the

offense.

Sentencing is "primarily a judicial function." United

States v. Mistretta, 488 U.S. 361, 390 (1989). This was the law

both before and after the promulgation of the sentencing

guidelines. See U.S.S.G. Part B, Intro ("[S]entencing is a

judicial function . . . . This is a reaffirmation of a pre-

guidelines practice."); S. Rep. 98-225 at 159, reprinted in 1984

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U.S.C.C.A.N. 3342 (stating that placing the Sentencing Commission

in the judicial branch was based on the understanding that

"sentencing should remain primarily a judicial function").

Sentencing remains a judicial function post-Booker. See Jimenez-

Beltre, 440 F.3d at 518-19.

Judicial independence in sentencing is reflected in the

rule governing the acceptance of pleas. Under Fed. R. Crim. P.

11(c)(3)(a), a sentencing court is empowered to reject any plea

agreement which binds the court to impose a specific sentence if

the court deems the sentence inappropriate. See C. Wright, Federal

Practice & Procedure, § 175.1 at n. 38 (3d ed. 1999) (citing cases

in which courts declined to accept plea agreements because of a

disagreement with the agreed-to sentence). Post-Booker cases also

emphasize the sentencing court's obligation independently to

consider the § 3553(a) factors in arriving at the appropriate

sentence. See United States v. Buchanan, --F.3d--, 2006 WL

1450686, at *9 (6th Cir. May 26, 2006) (stating that courts must

exercise "independent judgment" in imposing sentence); United

States v. Cooper, 437 F.3d 324, 329 (3d Cir. 2006) (stating that

courts must give "meaningful consideration to the § 3553(a)

factors").

The government's lenient pretrial offer to Thurston did

not relieve the district court of its independent obligation to

assess the seriousness of Thurston's offense. The court suggested

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that the government undervalued the seriousness of Thurston's crime

through its pretrial offer and then mistakenly deferred to its

perception of the government's pretrial position. See United

States v. Lazenby, 439 F.3d 928, 934 (8th Cir. 2006) ("Under the

Sentencing Reform Act and Booker sentencing discretion rests in the

final analysis with the sentencing judge, not with the

prosecution."); United States v. Escobar Noble, 653 F.2d 34, 36

(1st Cir. 1981) ("It is the particular function of the court, not

the prosecutor, to say the last word about the justice of a

sentence."). While the government's pretrial position might be

relevant, a sentencing court ought not simply defer to the

government's pretrial position, without taking into account the

court's own expressed misgivings about the government's view or the

government's explanation for its change in position.

Finally, we address the district court's deterrence

rationale. As set forth above, the court concluded that a sentence

imposing substantial prison time on Thurston would not promote

general deterrence because white collar defendants typically are

more concerned about whether they will go to prison than with the

actual length of imprisonment.

This rationale is problematic in light of our recent

post-Booker pronouncements. "The clear import of the statutory

[sentencing] framework is to preserve Congress's authority over

sentencing policy and to guarantee that the exercise of judicial

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discretion over sentencing decisions be based on case-specific

circumstances, not on general, across-the-board policy

considerations." United States v. Pho, 433 F.3d 53, 62 (1st Cir.

2006). Accordingly, post-Booker, "general disagreement with the

broad-based policies enunciated by Congress or the Commission" do

not justify imposing a sentence that is below the recommended

guideline range. Id. at 65.

"One of the goals of the entire guidelines regime was to

minimize discrepancies in the treatment of 'white collar' and 'blue

collar' offenses." Thurston I, 358 F.3d at 80. From the outset of

the guideline regime, the Sentencing Commission determined that the

penalties for white collar crime had to be increased because of the

inequity in the pre-guideline sentencing practice of "punishing

economic crimes less severely than other apparently equivalent

behavior." U.S.S.G., ch. 1, pt. A, § 3. In recent years, Congress

has expressed concern that punishments for white collar offenses

were too lenient. In 2002, Congress enacted the White Collar Crime

Penalty Enhancements Act which, inter alia, instructed the

Sentencing Commission to consider whether the sentencing

"guidelines and policy statements . . . are sufficient to deter .

. . [white collar] offenses" and to "modify the sentencing

guidelines" accordingly. See Pub. L. No. 107-204, § 905(b)(1),(2).

In response, the Commission increased the penalties and

enhancements for certain white collar offenses. See 68 Fed. Reg.

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2615-01 (2003); see also U.S.S.G. § 2B1.1 (2001) (setting forth the

2001 economic crime sentencing reforms which increased the

guideline penalties and enhancements for white collar offenses).

The district court is not alone in viewing long prison

sentences as unnecessary to deter white collar crimes. See, e.g.,

United States v. Yeaman, 248 F.3d 223, 238 (3d Cir. 2001) (Nygaard,

J., dissenting in part); A. Mitchell Polinsky & Steven Shavell, On

the Disutility and Discounting of Imprisonment & the Theory of

Deterrence, 28 J. Leg. Stud. 1, 12 (1999). But, as expressed

through the recommended guideline offense levels, this view is not

shared by "Congress or the Commission, as its agent." Pho, 433

F.3d at 65.

A court may sentence below the guidelines because the

guideline sentence appears unreasonable in the "particular case[],"

Jimenez-Beltre, 440 F.3d at 518, but not because of "general

disagreement with broad-based policies enunciated by Congress or

the Commission." Pho, 433 F.3d at 65. Here, the court pointed to

no facts concerning Thurston's offense or individual circumstances

indicating that a three-month sentence would adequately deter

similar crimes. Cf. United States v. Rattoballi, --F.3d--, 2006 WL

1699460, at *7 (2d Cir. June 21, 2006) (concluding that a below-

guideline sentence for a white collar defendant was unreasonable

where the district court imposed a lenient sentence based on

characteristics common to all white collar defendants). Therefore,

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this was not an appropriate ground for reducing Thurston's

sentence.

As demonstrated, the reasons provided do not support

Thurston's receiving a sentence 95% below the guideline

recommendation. Typically this conclusion would end the

discussion, and we would remand for resentencing. See Smith, 445

F.3d at 7. But this case is atypical. Some of the conduct

underlying Thurston's conviction is almost two decades old, and

Thurston's sentence now has been vacated twice. We are concerned

that vacating Thurston's sentence without providing further

guidance might lead to another contentious district court

proceeding and a third appeal. This would benefit no one.

Two district judges have concluded that a sentence below

the guideline recommendation is warranted in this case. While we

think that there are plausible reasons to support a below-guideline

sentence, these reasons do not permit the extreme variance that has

been granted.

One ground supporting a below-guideline sentence could be

that the intended loss attributed to Thurston overvalued the

seriousness of his offense. This was a basis for a downward

departure under the guidelines, see United States v. Ravelo, 370

F.3d 266, 275 (2d Cir. 2004), and remains relevant post-Booker, see

United States v. McBride, 434 F.3d 470, 477 (6th Cir. 2006).

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 The trial judge found that Thurston intended a loss of

over $5,000,000. "Much of Thurston's guideline sentence range . .

. was driven" by this determination. Thurston I, 358 F.3d at 68.

We concluded in Thurston I that the intended loss finding was

sustainable, but believed that the issue presented a somewhat close

question. Id. at 69. Unconstrained by the mandatory guideline

regime, a sentencing court plausibly could conclude that a

$5,000,0000 intended loss finding, with its resultant 14-level

increase in the offense level, leads to a modest overstatement of

the seriousness of Thurston's crime.

Another possible reason for a below-guideline sentence is

Thurston's documented record of good works. This was one of the

bases on which Thurston received a downward departure in his first

sentencing. We vacated that departure because a good works

departure was impermissible unless the good works were

"exceptional." Thurston I, 358 F.3d at 79. While we concluded

that Thurston's endeavors were not "exceptional," we did

acknowledge that "[s]ave for his crime, Thurston . . . lived a

creditworthy life." Thurston I, 358 F.3d at 79. Post-Booker, a

sentencing judge "could well conclude that a . . . discouraged

factor[] did not quite justify a departure from the guidelines . .

. but might justify a somewhat shorter sentence under a

reasonableness standard." United States v. Bradley, 426 F.3d 54,

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55-56 (1st Cir. 2005). Under this more flexible approach,

Thurston's good works could justify a somewhat shorter sentence.

Isola's probationary sentence also could justify a

somewhat reduced sentence. While Isola and Thurston were not

similarly situated, we acknowledge the district court's concern

that too wide a divergence between the sentence imposed on Isola

and Thurston could negatively affect the public's "respect for the

law." In administering the criminal justice system, it is

important to "preserve the appearance of justice." Cullen v.

United States, 194 F.3d 401, 408 (2d Cir. 1999). A sentencing

court could plausibly conclude that extremely divergent sentences

would undermine the accepted notion that similar conduct should be

punished in a somewhat similar manner. Cf. Lazenby, 439 F.3d at

934 (recognizing that extreme disparities in the sentences imposed

on coconspirators could "fail[] to promote respect for the law").

Balanced against these grounds for leniency are reasons

for imposing a stiff penalty. Thurston committed a serious offense

warranting substantial punishment. Medicare "fraud is a serious

crime . . . [which] affects the financial integrity of [a]

program[] meant to aid tens of millions of people in need of health

care. Every dollar lost to fraud is a dollar that could have

provided medical care to the elderly or the disabled." Thurston I,

358 F.3d at 81. Moreover, the recommended guidelines sentence is

60 months and, for the reasons articulated above, this variable

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remains an "important consideration" in identifying a reasonable

sentence. Jimenez-Beltre, 440 F.3d at 518; supra at 9-10.

An appellate court is not well-suited to determine the

appropriate sentence for a defendant. See Smith, 445 F.3d at 7

("Framing a . . . sentence is, in the first instance, the

responsibility of the district judge). But post-Booker, appellate

courts are tasked with drawing the line separating reasonable from

unreasonable sentences. See Booker, 543 U.S. at 263 (stating that

"appellate judges will prove capable" of applying the

"reasonableness" standard under advisory guidelines). Having

reviewed the record, the recommended guideline sentence, and the §

3553(a) factors, we conclude that a sentence of fewer than 36

months' imprisonment would fail reasonableness review in the

present circumstances. See United States v. Moreland, 437 F.3d

424, 437 (4th Cir. 2006) (vacating sentence imposed as unreasonable

under Booker and remanding with instructions setting a floor for

resentencing).

In setting the minimum sentence that could withstand

reasonableness review, we are not endorsing 36 months as the

correct sentence for Thurston. Indeed, given the seriousness of

Thurston's offense and his role as an organizer and lead

implementer of the fraud, this court would be inclined to impose a

sentence at or near the guideline recommendation if it were acting

as the sentencing court. But our role here is only to determine

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the minimum sentence that could be considered reasonable on the

present record. Accordingly, we emphasize that in remanding for

resentencing, we are not ordering that a 36-month sentence be

imposed. The district court is free to solicit further argument

and evidence from the parties, but, absent an extraordinary

development, the court must impose a sentence of no less than 36-

months' imprisonment.

Vacated and remanded.

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