United States Court of Appeals
For the First Circuit
No. 06-2216
UNITED STATES OF AMERICA,
Appellant,
v.
TALMUS R. TAYLOR,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Patti B. Saris, U.S. District Judge]
Before
Torruella, Circuit Judge,
Newman* and Lynch, Circuit Judges.
John A. Capin, Assistant United States Attorney, with whom
Michael J. Sullivan, United States Attorney, was on brief, for
appellant.
Bruce T. Macdonald, for appellee.
Elizabeth L. Prevett and Miriam Conrad, Federal Public
Defender, Federal Defenders Office, were on brief as amicus curiae
in support of appellee.
August 17, 2007
*
Of the Federal Circuit, sitting by designation.
TORRUELLA, Circuit Judge. Talmus R. Taylor was tried and
convicted of sixteen counts of aiding and assisting in the
preparation of false tax returns, a violation of 26 U.S.C.
§ 7206(2). The district court sentenced Taylor to one year in a
halfway house, five years of probation, and a $10,000 fine. The
Government now appeals Taylor's sentence, claiming that it is
substantively unreasonable. After careful consideration, we
conclude that a non-jail sentence was unreasonable in light of the
district court's explanation and the factors the court was
obligated to consider under 18 U.S.C. § 3553(a).
I. Background
In 1997, Taylor, a teacher at Fifield Elementary School
in Dorchester, Massachusetts, took a second job as a part-time
income tax preparer. In this capacity, Taylor submitted federal
tax returns on behalf of his clients. Many of the returns
submitted by Taylor claimed deductions for charitable contributions
of $9,000 to $19,000 worth of goods per year to Goodwill, donations
which his clients had not in fact made. The false claims were
accompanied by handwritten lists that purported to be records of
specific contributions along with their alleged value.
When the Internal Revenue Service ("IRS") noticed a
suspicious pattern in the returns prepared by Taylor -- in some
cases, the lists of contributions submitted with one person's
return were identical to lists submitted with another's return --
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they questioned Taylor. Taylor told the IRS that it was his
clients who had provided the fraudulent lists of deductions, and
that he had simply served as a scrivener. When confronted with the
fact that many of the lists were identical, Taylor explained that
he had mixed up documents at the copier, even though the lists had
been submitted months apart. According to testimony, Taylor then
asked his clients to provide false information to the IRS by, inter
alia, filling out blank receipts obtained from Goodwill and forging
the signature of Goodwill employees. The IRS did not believe
Taylor's explanations for the discrepancies, and he was later
arrested and charged with sixteen counts of tax fraud.
At trial, Taylor's clients testified that he had prepared
the lists of deductions and that he had later asked them to lie to
IRS agents if they asked about the returns. Taylor's clients also
stated that before Taylor had filled out their tax returns and
afterwards, they had never falsely claimed a charitable
contribution. The clients testified that after the tax fraud was
discovered, they were left with tax liabilities of, on average,
$2,000 for each year that Taylor prepared their returns.
Taylor testified on his own behalf, denying involvement
in any fraudulent scheme. The jury returned a verdict finding
Taylor guilty on sixteen counts of aiding in the preparation of
false tax returns. The jury further found that the aggregate value
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of the fraud -- the amount of taxes not paid to the Government --
was $129,879.
The Probation Office prepared a pre-sentence report
("PSR") for Taylor. The PSR calculated a total offense level of 19
by adding a base offense level of 15, U.S.S.G. § 2T4.1(J), a
2-level enhancement for being in the business of preparing tax
returns, U.S.S.G. § 2T1.4(b)(1)(B), and a 2-level enhancement for
obstruction of justice on the ground that Taylor counseled two
witnesses to falsify evidence and lie to the IRS, U.S.S.G. § 3C1.1.
Taking into account that Taylor had no criminal history, the
sentencing range under the advisory Sentencing Guidelines was 30 to
37 months in prison, one year of supervised release, and a fine of
up to $60,000.
Taylor submitted a sentencing memorandum to the court
suggesting that it depart from the sentencing guidelines and give
him no jail time at all. Taylor offered a letter from Boston
Public Schools stating that, based on the nature of his crime,
Taylor would continue to be eligible for employment in the schools
if he was not incarcerated. In addition, Taylor provided forty-
eight letters from the president of the Boston Teachers Union,
various current and former administrators and teachers in his
school and the school system, parents and students, friends,
colleagues, family members, members of his church, and members of
the community. These letters all unequivocally stated that this
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crime was an aberration for Taylor, and that he was generally a
law-abiding person. Some of the letters noted that Taylor had
played a very important role as a teacher at Fifield, that he was
loved by students, and that Taylor often went above and beyond his
job duties in organizing concerts and field trips for students, and
in leading the school chorus and the band. Other letters stated
that Taylor was the guardian for his mentally disabled brother, and
that he had provided aid and comfort to many members of the
community in their times of need.
At the sentencing hearing, a colleague of Taylor and
Taylor's principal both testified on his behalf. The witnesses
mostly repeated what was said in the letters, but added that
although they would likely be able to find a new music teacher,
Taylor was irreplaceable, and that they felt it unlikely that they
would find someone who would put in as much time as Taylor did. In
addition, the witnesses noted that Taylor was African-American and
that he was a good role model to students in his school, who often
did not encounter educated and professional African Americans. The
Government argued that while Taylor had made significant
contributions to his community and while this might warrant a
somewhat lower sentence, Taylor's case still merited some amount of
jail time so as to deter future offenders and to reflect the
seriousness of the offense. In particular, the Government noted
that Taylor had not accepted responsibility for his actions and
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that he had lied about his role in the fraud throughout the case.
Finally, Taylor made a brief statement to the court, stating that
he was "embarrassed," and that he was "sorry that [he had] actually
put [his] job into jeopardy as a music teacher." Taylor noted that
he loved his job and wanted to continue working as a teacher in the
schools.
The court decided to impose a sentence of five years
probation, including five hours a week of community service and one
year in a "halfway house," and a fine of $10,000. The court
offered as justification for the sentence its belief that
[Taylor's] level of service to the community
is extraordinary community involvement which
involves a traditional departure ground. I
also think that if for some reason the
appellate court did not think that it was a
traditional departure ground because they felt
it doesn't rise to the level of extraordinary,
I would do it on the basis of a variance on
the history and characteristics of the
offender and the need to impose a punishment
that is adequate but not [greater than
necessary.] . . . I'm particularly not giving
straight probation because I think that it's a
serious crime, but I think that this is a way
in which he can continue to give back to the
community, and yet it will send that signal
that the Government was correctly worried
about to the world that you can't commit tax
fraud and commit perjury and basically get
straight probation.
The Government then objected to the sentence on the ground that it
was not reasonable. The court overruled the Government's
objection, and this appeal ensued.
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II. Discussion
A. Standard of Review
First, we must discern the proper standard of review to
apply to Taylor's sentence. The Government urges us to bifurcate
our review, looking first to determine whether the district court
abused its discretion in "departing" from the Sentencing Guidelines
recommendation, and then reviewing the ultimate sentence for
"reasonableness." Taylor, on the other hand, argues that we should
eschew independent review of departures, and engage only in
reasonableness review of the end product. Ultimately, because
reasonableness review is not easily distinguishable from review for
abuse of discretion, see Rita v. United States, 127 S. Ct. 2456,
2470-71 (2007) (Stevens, J., concurring) ("Simply stated, Booker
replaced the de novo standard of review required by 18 U.S.C.
§ 3742(e) with an abuse-of-discretion standard that we called
'reasonableness' review." (quoting United States v. Booker, 543
U.S. 220, 262 (2005))), Taylor and the Government differ only as to
whether or not an independent review of "departures" is merited.
The Government finds support for independent review of
departures in the history of the sentencing statutes. Prior to the
enactment of the Prosecutorial Remedies and Other Tools to End the
Exploitation of Children Today Act of 2003 ("PROTECT Act"), Pub. L.
108-21, 117 Stat. 650 (2003), we reviewed decisions to depart
upwards or downwards from the sentencing guidelines for abuse of
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discretion. See, e.g., United States v. Rodríguez, 327 F.3d 52,
55 (1st Cir. 2003). After passage of the PROTECT Act, courts of
appeal reviewed out-of-Guidelines sentences de novo. 117 Stat. at
670, codified at 18 U.S.C. § 3742(e). However, in Booker, the
Supreme Court severed and excised § 3742(e), finding that the
effect of the de novo review standard was to "make Guidelines
sentencing even more mandatory than it had been" and concluding
that it "ceased to be relevant." 543 U.S. at 261. Although Booker
extensively discussed the standard of review to be applied to
sentencing appeals, the Court did not explicitly decide whether
courts of appeal should return to the pre-PROTECT Act standard of
review. Rather, it simply stated that
the [pre-PROTECT Act] text told appellate
courts to determine whether the sentence "is
unreasonable" with regard to § 3553(a).
Section 3553(a) remains in effect, and sets
forth numerous factors that guide sentencing.
Those factors in turn will guide appellate
courts, as they have in the past, in
determining whether a sentence is
unreasonable.
Id. at 261.
In the absence of explicit instructions from the Supreme
Court, the Government argues, and some of our sister circuits have
concluded, that the proper course of action is to revert to the
pre-PROTECT Act standard, which separately reviewed Sentencing
Guidelines departures for abuse of discretion. See, e.g., United
States v. Wolfe, 435 F.3d 1289, 1295 n.5 (10th Cir. 2006)
-8-
(explaining history of sentencing statutes and concluding that
departures should be reviewed for abuse of discretion); see also
United States v. Shan Wei Yu, 484 F.3d 979, 987 (8th Cir. 2007);
United States v. Husein, 478 F.3d 318, 325-326 (6th Cir. 2007);
United States v. Crisp, 454 F.3d 1285, 1288 (11th Cir. 2006);
United States v. Smith, 440 F.3d 704, 707 (5th Cir. 2006); United
States v. Fuller, 426 F.3d 556, 562 (2d Cir. 2005). Two circuits,
however, have eliminated separate review of departures under the
Guidelines, concluding that post-Booker, independent review of
Sentencing Guidelines "departures" largely replicates
reasonableness review. See United States v. Mohamed, 459 F.3d 979,
987 (9th Cir. 2006) ("If we were to declare the sentence
unreasonable, then the sentence would be invalid both because of
the erroneous departure and because it is unreasonable. In any
case, our review of the so-called departure would have little or no
independent value." (emphasis in original)); United States v.
Johnson, 427 F.3d 423, 426 (7th Cir. 2005) ("It is now clear that
after Booker what is at stake is the reasonableness of the
sentence, not the correctness of the 'departures' as measured
against pre-Booker decisions that cabined the discretion of
sentencing courts to depart from guidelines that were then
mandatory.").
We agree that the concept of "departures" is somewhat
"outmoded" in the post-Booker world. See United States v. Rinaldi,
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461 F.3d 922, 929 (7th Cir. 2006). However, district courts are
still required by § 3553(a)(5) to consider policy statements issued
by the Sentencing Commission, and many of the traditional grounds
for "departure" under the Sentencing Guidelines are, in fact,
policy statements. District courts must properly interpret those
policy statements (if they are relevant) and apply them to the
facts of each case. See, e.g., United States v. Thurston
("Thurston I"), 358 F.3d 51, 78-79 (1st Cir. 2004) (holding that
U.S.S.G. § 5H1.11 states that courts should impose lower sentences
only for "extraordinary" good works), vacated and remanded in light
of Booker, 543 U.S. 1097 (2005). Thus, at times, we may need to
refer to our extensive body of departure-related law to
independently determine whether a district court has complied with
its obligation under § 3553(a)(5) to consider Sentencing Commission
policy statements. As such, we cannot agree with the Seventh and
Ninth circuits that appellate courts should never, as part of their
reasonableness analyses, engage in an independent review of whether
a district court properly interpreted the Sentencing Commission's
policy statements in determining a sentence.
Thus, we think that where a party challenges a sentence
as unreasonable because a district court has misconstrued a
Sentencing Commission policy statement, appellate review should
consist of determining whether a district court has correctly
interpreted the policy statement and whether it has reasonably
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applied the policy statement to the facts of the case. Once we
have determined that a district court has complied with its
statutory obligation to correctly consider the Sentencing
Commission policy statements, appellate review of the ultimate
sentence, including the weighing of those policy statements against
the other § 3553(a) factors, should be for "reasonableness."
Booker, 543 U.S. at 261.1
B. Did the District Court Properly Interpret U.S.S.G. § 5H1.11?
The Government argues that the district court
misinterpreted U.S.S.G. § 5H1.11, and thus erroneously considered
it to militate in favor of a lower sentence in this case. U.S.S.G.
§ 5H1.11 is a policy statement of the Sentencing Commission and
states, "[C]ivic, charitable, or public service; employment-related
contributions; and similar prior good works are not ordinarily
relevant in determining whether a departure is warranted." We have
interpreted § 5H1.11 to apply only to extraordinary civic and
charitable contributions. See Thurston I, 358 F.3d at 78-79; see
1
The Government also argues that appellate courts may not review
a district court's decision to choose a lower (or higher) sentence
based on a Sentencing Guidelines policy statement. We find this
argument unusual, given that it would moot the Government's appeal
inasmuch as the district court imposed a lower sentence on Taylor
based on such a policy statement. While it is true that under
existing circuit precedent, we may not review a district court's
discretionary decision to find that a Sentencing Guidelines policy
statement does not merit a sentence reduction in a particular
defendant's case, United States v. Meléndez-Torres, 420 F.3d 45,
50-51 (1st Cir. 2005), this is beside the point. A sentence which
takes into account a Sentencing Guidelines policy statement is,
like all other sentences, subject to review for reasonableness.
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also U.S.S.G. § 5K2.0(a)(4) ("An offender characteristic . . . not
ordinarily relevant in determining whether a departure is warranted
may be relevant to this determination only if such offender
characteristic or other circumstance is present to an exceptional
degree."). The district court appears to have properly interpreted
the policy statement, given its statement that it considered
§ 5H1.11 to apply because of Taylor's "extraordinary" good works.
In deciding whether U.S.S.G. § 5H1.11 applied to the
facts of Taylor's case, the district court noted that people from
all walks of life wrote to the court to attest to the fact that
Taylor had gone out of his way to help them and the community.
Many of Taylor's students and colleagues also wrote and testified,
explaining his importance to the school as a music teacher and that
he had often gone above and beyond his job duties to organize
concerts for pupils. Perhaps the most striking testimony to
Taylor's contributions to his school was contained in a letter from
the Boston Public Schools indicating that Taylor would be allowed
to continue teaching if he was not sent to prison, notwithstanding
the fact that he had been found guilty of fraud. In light of the
testimony at Taylor's sentencing hearing and the vast number of
letters documenting Taylor's extensive service to his community, we
believe that the district court reasonably interpreted the facts to
find that Taylor had engaged in extraordinary good works, and that
as such, U.S.S.G. § 5H1.11 militated in favor of a lower sentence.
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Cf. United States v. Canova, 412 F.3d 331, 343 (2d Cir. 2005)
(finding that a defendant had engaged in extraordinary good works
"which included six years' service in the United States Marine
Corps, 'exemplary and many times courageous service' as a volunteer
firefighter, and Good Samaritan aid to 'three total strangers who
were in extreme medical distress.'"). Although another judge might
have decided otherwise, we conclude that the district court's
determination was a reasonable interpretation of the facts before
it.
C. Was Taylor's Sentence Unreasonable?
Because the district court properly calculated the
advisory Sentencing Guidelines range and correctly interpreted the
relevant Sentencing Commission policy statements, and because there
is no dispute that the court gave proper weight to the Guidelines,
the only remaining question at issue in this appeal is whether the
court's sentence was "reasonable." Jiménez-Beltre, 440 F.3d at 518
("Booker's remedial solution makes it possible for courts to impose
non-guideline sentences that override the guidelines, subject only
to the ultimate requirement of reasonableness."); see also United
States v. Trupin, 475 F.3d 71, 74 (2d Cir. 2007) (reviewing a
sentence for reasonableness after determining that "[n]either the
way in which the district court performed its duty to consider the
section 3553(a) factors nor its Guidelines calculation is at
issue").
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In past cases, we have attempted, mostly in general
terms, to describe how a district judge might arrive at a
reasonable sentence for a defendant. We have expressed the need
for district courts to provide a "plausible explanation and a
defensible overall result." Jiménez-Beltre, 440 F.3d at 519. And
although the Guidelines are not presumptively reasonable in this
Circuit, see id. at 518, we have also agreed with Judge Posner's
statement that "[t]he farther the judge's sentence departs from the
guidelines sentence . . . the more compelling the justification
based on factors in section 3553(a) that the judge must offer in
order to enable the court of appeals to assess the reasonableness
of the sentence imposed." United States v. Smith, 445 F.3d 1, 4
(1st Cir. 2006) (quoting United States v. Dean, 414 F.3d 725, 729
(7th Cir. 2005) (Posner, J.)).2
Notwithstanding these general pronouncements, we have
tended to eschew more specific guidance, recognizing that judges
must consider each defendant and his or her crime individually.
See Jiménez-Beltre, 440 F.3d at 528 n.10 ("[W]e required, even
2
In Rita, 127 S. Ct. at 2463, the Supreme Court held that it was
permissible for an appellate court to presume that if "both the
sentencing judge and the Sentencing Commission will have reached
the same conclusion as to the proper sentence in the particular
case[,] . . . . [t]hat double determination significantly increases
the likelihood that the sentence is a reasonable one." However,
the Supreme Court's opinion does not require such a presumption to
be adopted, id. at 2468 (noting that "[s]everal courts of appeals
have . . . rejected a presumption of unreasonableness"), and we
have declined to adopt one, Jiménez-Beltre, 440 F.3d at 518.
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before Booker, that a court's explanation of its sentence
'sufficiently show a thoughtful exercise of the court's sentencing
responsibility and a degree of care and individualized attention
appropriate to the solemnity of the sentencing task.'" (quoting
United States v. Vázquez-Molina, 389 F.3d 54, 59 (1st Cir. 2004)));
see also United States v. Vázquez-Rivera, 470 F.3d 443, 449 (1st
Cir. 2006) (Howard, J., concurring) ("District courts will
inevitably approach sentencing differently post-Booker. Indeed,
the legitimacy of a range of approaches is implicit in Booker's
grant of added discretion to sentencing judges."). But see United
States v. Thurston (Thurston II), 456 F.3d 211, 220 (1st Cir. 2006)
("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."). We leave broad discretion to a
district judge to determine an appropriate sentence because he or
she will ordinarily have observed a trial from its inception,
becoming intimately aware of the facts and the players involved.3
3
The discretion left to district judges in the wake of Booker,
543 U.S. 220, is not a particularly new development. Prior to the
creation of the Sentencing Guidelines regime in the late 1980s,
judges were given almost unfettered (and unreviewable) discretion
to impose sentences as they saw fit. See generally Mistretta v.
United States, 488 U.S. 361, 363-65 (1989) (reviewing history of
sentencing in United States); Douglas Berman, Conceptualizing
Booker, 38 Ariz. St. L.J. 387, 388 (2006) ("From the late
nineteenth-century and throughout the first three-quarters of the
twentieth-century, trial judges in both federal and state systems
were given nearly unfettered discretion to impose any sentence from
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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."). In addition, a district judge will ordinarily be
involved in sentencing on a far more regular basis than appellate
judges, and thus will have a better eye for the ins and outs of
criminal conduct and those who engage in it. Thus, a district
court will be best placed to make the sorts of individualized
determinations that allow the imposition of a sentence that is
sufficient, but no greater than necessary, to achieve the stated
purposes of 18 U.S.C. § 3553(a). Unwarranted interference in this
process is likely to hinder individualized consideration and result
in one-size-fits-all sentencing, an approach that was rejected long
ago. See Williams v. New York, 337 U.S. 241, 247 (1949) ("The
belief no longer prevails that every offense in a like legal
within broad statutory ranges provided for criminal offenses.").
This discretion, however, led to "[s]erious disparities in
sentences." Mistretta, 488 U.S. at 365; see also Berman, supra at
393 ("[S]ome studies found that personal factors such as an
offender's race, gender and socioeconomic status were impacting
sentencing outcomes and accounted for certain disparities."). As
a result, in determining a sentence, judges must now consider "the
need to avoid unwarranted sentence disparities among defendants
with similar records who have been found guilty of similar
conduct," 18 U.S.C. § 3553(a)(6). A judge must also continue to
consider the sentencing guidelines, id. § 3553(a)(4)-(5), which
reflect "the increased uniformity of sentencing that Congress
intended its Guidelines system to achieve," Booker, 543 U.S. at
246.
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category calls for an identical punishment without regard to the
past life and habits of a particular offender.").
Turning to the case at hand, the district court decided
that a sentence of probation and time in a halfway house was
appropriate for Taylor, citing both U.S.S.G. § 5H1.11 and its
belief that a "non-guidelines sentence" would best serve the
sentencing goals listed in 18 U.S.C. § 3553(a).4 Under 18 U.S.C.
§ 3553(a)(5), it was proper for the district court to consider
Taylor's extraordinary good works pursuant to U.S.S.G. § 5H1.11,
and in Thurston II, we stated that a district court might also
consider ordinary charitable activities and good works as part of
the "history and characteristics of the defendant," 18 U.S.C.
§ 3553(a)(1). 456 F.3d at 219.
While these ordinary and extraordinary contributions to
the community may have justified a sentence with less imprisonment
4
We wonder, however, whether terming a sentence "guideline" or
"non-guideline" appropriately reflects the proper role of the
sentencing guidelines post-Booker. While the sentencing guidelines
are to be accorded substantial weight, see United States v.
Vázquez-Rivera, 470 F.3d 443, 449 (1st Cir. 2006), and can be used
as a starting point in the sentencing process, see United States v.
Parrilla Román, 485 F.3d 185, 190 (1st Cir. 2007), the Guidelines
are but one factor in the sentencing analysis, 18 U.S.C. § 3553(a)
(4), a sentence outside of the guidelines need not be justified by
unusual or extraordinary reasons, see Vázquez-Rivera, 470 F.3d at
449, and a within-guidelines sentence will not be considered
presumptively reasonable by this court, see Jiménez-Beltre, 440
F.3d at 518. Thus, we do not find the term "non-guidelines
sentence" to be useful except to the extent that it expresses the
sentencing court's consideration that the advisory Guidelines
recommendation was outweighed by other § 3553(a) factors.
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than an otherwise similarly situated defendant, we cannot sustain
the ultimate sentence imposed on Taylor based on the factors
identified by the district court. In explaining its ultimate
sentence, the district court noted that Taylor had committed a
serious offense, and that he had lied in court. The court also
noted that under the sentencing guidelines, which were considered
as part of the sentencing process, the recommended sentence for
Taylor was 30 to 37 months in prison. The court explained,
however, that it did not feel that a sentence of jail time was
appropriate because of the "fantastic contribution he has made to
the community." Although we do not wish to unduly constrain the
district court's sentencing discretion on remand, we do not think
that these factors make Taylor's sentence of probation a plausible
result. See United States v. Scherrer, 444 F.3d 91, 93 (1st Cir.
2006) ("[O]ur main concern is whether the court has adequately
explained its reasons for varying or declining to vary from the
guidelines and whether the result is within reasonable limits.").
We briefly explain.
The offense that Taylor committed no less than sixteen
times over a four-year period -- fraudulent preparation of tax
returns -- is a serious crime. While tax fraud is not violent in
nature, at its heart, it is theft, specifically theft of money to
which the public is entitled. See Trupin, 475 F.3d at 76 (noting
that the defendant "in effect stole from his fellow taxpayers
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through his deceptions" and that "[a] seven-month term of
imprisonment fails to reflect as much"). Furthermore, the tax
fraud committed here was not part of an indigent's effort to avoid
personal tax liability, but rather, the supplemental business of a
moderately successful man who misled his clients. Cf. United
States v. Thurman, 179 Fed. Appx. 971, 972 (7th Cir. 2006) (noting
with approval that "[t]he district court concluded that because
Thurman was not selling drugs to support his own addiction, but
instead as an illegal business, his crime was more offensive in
nature"). In addition, as the district court recognized, Taylor
repeatedly obstructed justice during the course of the
investigation and the trial by asking his clients to misinform the
IRS and provide inaccurate testimony. See Rinaldi, 461 F.3d at 931
(finding reasonable a district court's consideration of the
defendant's obstruction of justice as a factor meriting a higher
sentence); United States v. Bradstreet, 135 F.3d 46, 57 (1st Cir.
1998) ("One convicted of criminal dishonesty is therefore not
entitled to an aberrant conduct departure if he has testified
dishonestly about his criminal conduct."). Moreover, the trial
transcript provides no indication whatsoever that Taylor has
accepted responsibility for his actions. To put it succinctly, we
do not view the sentence as having given full consideration to the
nature and circumstances of Taylor's crime, 18 U.S.C. § 3553(a)(1),
and the need to reflect its seriousness, 18 U.S.C. § 3553(a)(2)(A).
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In addition, we believe that the district court accorded
incommensurate weight to the fact that Taylor's absence from school
would negatively affect his students. We need not decide whether,
in considering the history and characteristics of the defendant, a
court may consider the effect of the defendant's incarceration on
others. Cf. United States v. Holz, 118 Fed. Appx. 928, 935-36 (6th
Cir. 2004) (deciding that a court may consider the impact on a
defendant's business and employees when imposing a sentence).
However, if a district court did take such an impact into
consideration, we think it would also have been necessary to
consider the fact that "[i]t is not extraordinary that in the area
of white collar crime, a principal's business and employees may
suffer if he is incarcerated." United States v. Pool, 474 F.3d
1127, 1129 (8th Cir. 2007).
Furthermore, the court was also obligated to consider
whether Taylor's sentence would serve the purpose of providing
"adequate deterrence to criminal conduct." 18 U.S.C. § 3553(a)(2)
(B). In particular, we have recognized that "deterrence of
white-collar crime [is] of central concern to Congress." United
States v. Mueffelman, 470 F.3d 33, 40 (1st Cir. 2006). When
passing the Sentencing Reform Act, Congress explained:
[It is our] view that in the past there have
been many cases, particularly in instances of
major white collar crime, in which probation
has been granted because the offender required
little or nothing in the way of
institutionalized rehabilitative measures
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. . . and because society required no
insulation from the offender, without due
consideration being given to the fact that the
heightened deterrent effect of incarceration
and the readily perceivable receipt of just
punishment accorded by incarceration were of
critical importance. The placing on probation
of [a white collar criminal] may be perfectly
appropriate in cases in which, under all the
circumstances, only the rehabilitative needs
of the offender are pertinent; such a sentence
may be grossly inappropriate, however, in
cases in which the circumstances mandate the
sentence's carrying substantial deterrent or
punitive impact.
S. Rep. No. 98-225, at 91-92 (1983), reprinted in 1984 U.S.C.C.A.N.
3182, 3274-75; see also United States v. Martin, 455 F.3d 1227,
1240-41 (11th Cir. 2006) (considering the Senate Report and adding
that "Rather than deter crime by others, [the defendant's] 7-day
sentence suggests that those similarly situated . . . could profit
from fraudulent conduct"); Thurston II, 456 F.3d at 218 (noting
that Congress has concluded that prison sentences tend to deter
white-collar criminals).5 We do not see why Taylor is an
aberration from the overall conclusion that the threat of jail time
deters white-collar crime, and thus we are not convinced that a
non-jail sentence for Taylor would adequately serve the goal of
general deterrence.
5
As we noted in Thurston II, although a district court might
disagree with the link between prison sentences and deterrence of
white-collar crime, its focus should be on the individual
characteristics of the defendant, rather than general policy
considerations. 456 F.3d at 218.
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Finally, we are unpersuaded that this sentence reasonably
reflects "the need to avoid unwarranted sentence disparities among
defendants with similar records who have been found guilty of
similar conduct."6 18 U.S.C. § 3553(a)(6). The Sentencing
Guidelines highlight the problem:
Under pre-guidelines practice, roughly half of
all tax evaders were sentenced to probation
without imprisonment, while the other half
received sentences that required them to serve
an average prison term of twelve months. This
guideline is intended to reduce disparity in
sentencing for tax offenses and to somewhat
increase average sentence length.
U.S.S.G. § 2T1.1 background note. In addition, courts have
recognized that "the minimization of discrepancies between white-
6
Taylor cites various cases in which other defendants have
received somewhat lower sentences for their past good works. See,
e.g., United States v. Canova, 412 F.3d 331 (2d Cir. 2005); United
States v. Woods, 159 F.3d 1132 (8th Cir. 1998). While these cases
are persuasive inasmuch as they have held that a defendant's good
works are a permissible consideration in the sentencing process, we
do not believe them to be apt comparisons for the purpose of
establishing that Taylor's sentence is or is not within the norm.
As we have explained, the focus of § 3553(a)(6) is on nationwide
sentencing disparities, rather than disparities between the
sentences given to individual defendants. See Thurston II, 456
F.3d at 216.
To the extent that Taylor offers these cases to show that his
sentence is reasonable, we respond that they are no more probative
of reasonableness than cases in which courts have rejected appeals
by defendants challenging their sentences as too high in light of
their good works, see, e.g., United States v. Baxter, 217 Fed.
Appx. 557 (7th Cir. 2007), or cases in which courts have found
sentences unreasonable on the ground that they excessively relied
on a defendant's good works, see, e.g., United States v. Mallon,
345 F.3d 943, 949 (7th Cir. 2003). In the post-Booker world,
sentencing must be truly individualized.
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and blue-collar offenses" is an important goal in the sentencing
process. Mueffelman, 470 F.3d at 40; see also Thurston I, 358 F.3d
at 80. We recognize that because of Taylor's extraordinary service
to the community, he may not be easily comparable to "defendants
with similar records who have been found guilty of similar
conduct." 18 U.S.C. § 3553(a)(6). However, it is important to
recognize that persons convicted of white collar crimes "are often
expected, by virtue of their positions, to engage in civic and
charitable activities." Thurston I, 358 F.3d at 80.
Thus, we conclude that the district court should
resentence Taylor by taking proper account of all of the factors
listed in 18 U.S.C. § 3553(a) and providing a reasoned explanation
for its result.
III. Conclusion
For the foregoing reasons, we vacate the sentence of the
district court and remand for resentencing.
Vacated and Remanded.
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