United States v. Tomko

SMITH, Circuit Judge,

dissenting.

I do not believe it presumptuous to state that each member of this panel, if sitting as a district judge, would have sentenced William Tomko to time in prison. However, this Court does not review sentences de novo. Instead, we afford “deference to the District Court because it is in the best position to determine the appropriate sentence in light of the particular circumstances of the case.” United States v. Dragon, 471 F.3d 501, 506 (3d Cir.2006) (quotation omitted). Post -Booker, reasonableness review is the standard, and it “merely asks whether the trial court abused its discretion.” Rita v. United States, — U.S. -, 127 S.Ct. 2456, 2465, 168 L.Ed.2d 203 (2007); see also id. at 2470-71 (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.” (citation omitted)). Rita reminds us that the Guidelines “reflect a rough approximation of sentences that might achieve § 3553(a)’s objectives,” id. at 2465, and that the Sentencing Commission has carried out the objectives at “wholesale.” Id. at 2463. The sentencing judge, in contrast, carries out the § 3553(a) objectives at “retail,” id., so that “[t]he 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.” Id. at 2469.

In this case, the District Court provided a thorough discussion of how it meaning*174fully considered the factors outlined in 18 U.S.C. § 3553(a), and then reasonably applied them to the facts of the case before it. The majority disagrees and, in doing so, makes at least three major errors.

First, the majority adopts a rigid version of the proportionality principle in the guise of its formulation of substantive reasonableness that has never been employed by this Court. The proportionality principle is “the proposition that the strength of the justification needed to sustain an outside-Guidelines sentence varies in proportion to the degree of the variance.” Rita, 127 S.Ct. at 2467. The appropriateness of such a principle will be taken up by the Supreme Court next term in United States v. Gall, No. 06-7949. Perhaps to avoid the obvious conclusion that we should hold this case c.a.v. pending the resolution of Gall, the majority instead states that, in its reasoning, “we do not mean to suggest a formulaic application of the ‘proportionality principle’ that has been adopted by so many of our sister circuits.” Maj. Op. at 168. Yet the majority implicitly adopts such a principle by concluding that the sentence in this case, which varies from the Guidelines, is unreasonable because it concludes “that the § 3553(a) factors advocate in the strongest possible terms for a sentence including a term of imprisonment.” Maj. Op. at 168. In other words, the majority attempts to circumvent the proportionality principle by arguing that the substance of Tomko’s sentence must be unreasonable because the sentence falls outside the majority’s application of the § 3553(a) factors. This reasoning parallels the proportionality principle and even goes beyond the version of the proportionality principle which requires a sentencing judge to find extraordinary circumstances to justify a substantial variance, which is the question presented in GaM.17 The majority suggests that even an extraordinary circumstance finding would not have been enough for the District Court to justify its sentence in this case. The majority says this is because the crime was so egregious and the variance was so great. Respectfully, this sounds to me like proportionality.

Second, the majority departs from our post-Booker jurisprudence by conducting what amounts to de novo review of the sentencing court. In no post-Booker case has this Court ever asked a sentencing court to do more than the District Court did here. The majority opinion curtails the deference we accord sentencing courts to impose a reasonable sentence, regardless of whether that sentence substantially varies either up or down from the Guidelines range.

Third, and related to the first two errors I cite, the majority’s position provides no guidance for district courts. The effect of the majority opinion will necessarily be to confuse district courts as to what circumstances would ever justify a substantial variance, regardless of the validity of the reasons for the variance given by the sentencing court.18 This effect runs contrary to both the deference formerly granted to sentencing courts as well as our appellate *175role of examining the legitimacy of the reasons given by the sentencing court for exercising its decisionmaking discretion. See Rita, 127 S.Ct. at 2468 (“The sentencing judge should set forth enough to satisfy the appellate court that he has considered the parties’ arguments and has a reasoned basis for exercising his own legal decisionmaking authority.”); United States v. Charles, 467 F.3d 828, 833 (3d Cir.2006) (describing “the high level of deference we accord sentencing judges”). Further, I suggest that the majority’s reasoning applies with equal force to aggravated factors counseling in favor of substantial upward variations, so that the majority’s holding has the potential for unintended consequences falling outside its reasoning.

Because I believe that the majority fashioned a new standard for reasonableness unsupported by precedent, failed to accord the District Court appropriate deference under our post-Booker jurisprudence, and failed to show how the District Court abused its discretion, I respectfully dissent. I would affirm the sentence of the District Court because it is reasonable in light of the District Court’s discussion of the circumstances of this case and the sentencing factors outlined in 18 U.S.C. § 3653(a).

I.

The majority appropriately characterizes William Tomko’s scheme to defraud the Government of federal income taxes. He is a tax cheat, and an unsympathetic one. His crime resulted in a tax deficiency of over $225,000. The Sentencing Guidelines suggested a sentencing range of 12 to 18 months of incarceration and a fine range of $3,000 to $30,000. The District Court sentenced Tomko to three years of probation (including one year of house arrest), 250 hours of community service, and the statutory maximum fine of $250,000. The District Court also ordered him to undergo 28 days of in-house treatment for alcohol abuse.

The Supreme Court’s decision in Booker holding that the federal Sentencing Guidelines are advisory represented a tectonic shift in federal sentencing. United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005); United States v. Grier, 475 F.3d 556, 565 (3d Cir.2007) (en banc) (stating that the Guidelines range now “merely serves as one of a number of factors to be considered in fashioning the ultimate sentence”). The Supreme Court stated that appellate courts are to review sentences for “reasonableness” in light of the factors enumerated in 18 U.S.C. § 3553(a), but granted considerable leeway to the appellate courts to define reasonableness. Booker, 543 U.S. at 261-62, 125 S.Ct. 738. In United States v. Cooper, 437 F.3d 324, 329-30 (3d Cir.2006), we stated that sentencing courts must give “meaningful consideration to the § 3553(a) factors” and “ascertain whether those factors were reasonably applied to the circumstances of the case.” The party challenging the sentence has the burden of demonstrating unreasonableness. Id. at 332. This Court does not presume that a sentencing court considered the factors solely because the sentence falls within the Guidelines range, id. at 329-30, which is still valid post -Rita. See Rita, 127 S.Ct. at 2462 (stating that the primary issue “is whether a court of appeals may apply a presumption of reasonableness” to a within-Guidelines. sentence (emphasis added)). Where, as here, a sentence falls outside of the Guidelines range, we also do not presume that the sentence is unreasonable. See United States v. Schweitzer, 454 F.3d 197, 204 (3d Cir.2006). The Supreme Court will take up this question next term in United States v. Gall, No. 06-7949.

*176The majority, in my view, fails to recognize the length to which the District Court properly gave meaningful consideration to the § 3553(a) factors and reasonably applied them to Tomko. The District Court in the September 2005 sentencing hearing gave ample consideration to the factors:

I am to consider first the nature and circumstances of the offense, which are as follows. The offense was not violent in nature. The offense was not ongoing in nature. The offense was not part of a larger pattern of criminal activity. There are also no identifiable victims of the offense. I am also to consider the history and characteristics of the Defendant. [The District Court here discussed Tomko’s childhood, family, education, drinking problem, and prior criminal conviction for operating a boat while intoxicated.] I am also going to consider the need for the sentence imposed to reflect the seriousness of the offense, promote respect for the rule of law, and provide just punishment for the offense. Here, the Defendant has pled guilty to tax evasion, which is a serious offense. I am to afford adequate deterrence to the Defendant’s criminal conduct. Here, the Defendant has one pri- or criminal incident which is alcohol-related, but has otherwise led a crime-free life. I am to protect the public from further crimes of this Defendant. Here, the Defendant has not been involved in other crimes even though this is a serious offense here. The likelihood of recidivism in this case I find is very little. And to provide Defendant with needed educational/vocational training, medical care, or other correctional treatment in the most effective manner possible. I am also to consider the kind of sentences available, including federal prison, house arrest, probation and fines, which I am going to do. I am to consider the need for unwarranted sentence disparities among Defendants with similar records who have been found guilty of similar conduct. These considerations generally weigh in favor of sentencing a Defendant within the guideline range. However, this need to avoid unwarranted sentence disparities among Defendants with similar records also gives me enough leniency, though, to understand that there are differences and those differences have to be taken into account. I recognize the need for consistent sentencing; however, in this case, given the Defendant’s lack of any significant criminal history, his involvement in exceptional charitable work and community activity, and his acceptance of responsibility, we find that a sentence that is mitigated by the factors of3558[is] warranted.

The District Court explicitly examined subsections (a)(1), (a)(2)(A), (a)(2)(B), (a)(2)(C), (a)(2)(D), (a)(3), (a)(4), and (a)(6) of § 3553. The District Court also ordered restitution. See 18 U.S.C. § 3553(a)(7).

In addition to the previously quoted passage, the District Court also stated:

The reason for the sentence is as follows: Defendant stands before us for sentencing after pleading guilty to tax evasion. A review of Defendant’s financial condition paints a picture of a very wealthy man who had the means and wherewithal to easily pay whatever tax obligation is owing. He was a successful businessman earning a significant salary. There is simply no reason for him to have done this.
This being said, I also note his negligible criminal history, his record of employment, his support for and ties in the community, and the extensive charitable work he has done. I have also — therefore, I have sentenced him to the period of probation, which I recognize is below *177the guideline range. I also recognize that the fine is above the guideline range. Given the Defendant’s wealth, the guideline range in fines is insufficient deterrence.
Therefore, I’ve done this mitigation of the sentence under the provisions set forth in 18 U.S.C. § 3553 for the reasons I stated. Taking all these factors into account, the Court sentences the Defendant to a period of probation, a substantial fine, and allows for repayment to the Internal Revenue Service of his outstanding tax obligation.
The Court views that this sentence will address the sentencing goals of punishment, deterrence and rehabilitation.

As this passage indicates, the District Court gave meaningful consideration to the § 3553(a) factors and reasonably applied them to the particular facts of Tom-ko’s case. Cf. United States v. Jackson, 467 F.3d 834, 842 (3d Cir.2006) (upholding a sentence where the District Court gave far less explicit consideration to the factors).

In determining whether a sentencing court has reasonably applied the § 3553(a) factors, we review the sentence to ensure that it is both logical and consistent with the factors. Cooper, 437 F.3d at 330. Here, the District Court gave specific reasons for why Tomko’s sentence varies from the Guidelines range. This variance took into account Tomko’s negligible criminal history, community ties, and charitable work as reasons for not incarcerating Tomko, while also factoring in his substantial wealth as a reason for imposing a fine far above the Guidelines range.

The majority would, apparently, have applied these factors differently had it been the sentencing court. I would have done so as well. “That we may ourselves have imposed a sentence different from that of the district court, based on our own de novo assessment of the evidence, -is no basis to overturn the judgment.” Schweitzer, 454 F.3d at 204; see also United States v. Bungar, 478 F.3d 540, 543 (3d Cir.2007) (stating that, as an appellate court, we are “highly deferential” when evaluating Cooper’s reasonable application prong). Here, the District Court simply weighed the § 3553(a)(1) factors differently from how the members of this panel would have weighed them. For example, the majority states that “while negligible criminal history may have been an appropriate factor for the sentencing court to consider, on its own it does not provide strong support for the variance in this case, given that it was already factored into Tomko’s base offense level.” Maj. Op. at 170. This is enough for the majority to consider Tomko’s sentence unreasonable.

Similarly, the majority discounts Tom-ko’s strong record of employment. The majority correctly states that “record of employment is relevant as an aspect of a defendant’s history and characteristics.” Maj. Op. at 170. It goes on to conclude, however, that “this factor is certainly not in itself a reasonable basis for the sentence in this case.” Maj. Op. at 170. Again, it is not the role of this Court to review a factor de novo when analyzing whether a variance is reasonable. See Cooper, 437 F.3d at 330.

The District Court’s emphasis on Tom-ko’s “support for and ties in the community, and the extensive charitable work he has done,” is also fully supported by the record. Several dozen letters were written on Tomko’s behalf prior to his sentencing. These letters indicate that Tomko performed pre-indictment charitable acts that involved not only money, but also his personal time. For several years, Tomko participated in a holiday gift drive in Fin-leyville, Pennsylvania. He provided *178Christmas gifts for 30 needy families, provided gloves and scarves to inner city children at a daycare center, and also helped other families in Marianna, Pennsylvania during the holiday season. One letter stated that Tomko performed all of this work anonymously. On a more individual basis, another letter noted how Tomko “also helped a woman in the South Park area that had recently lost her husband and was left with four small children to raise by her[self|.” He also went out of his way to accommodate his employees who needed extra time off for personal reasons. Tomko participated in other acts of charity for those in need. A pastor in the community noted Tomko’s pre-indictment proclivity for aiding the poor, and stated that “[b]y requiring him to perform ... community service, in lieu of incarceration, not only will you help the impoverished lives of the poor, but you will also transform the life of Bill Tomko.”

At Tomko’s sentencing proceeding, the Executive Director of Habitat for Humanity’s Pittsburgh affiliate testified on Tom-ko’s behalf. The Executive Director stated that the Pittsburgh affiliate had been in danger of being closed down by the national Board of Directors because of its precarious financial situation. The Executive Director testified that Tomko became personally involved in the construction and rehabilitation of several houses in the Pittsburgh area. Again, Tomko devoted not only a portion of his wealth, but also his personal time. The Executive Director stated that, for one house that had water runoff problems, “Mr. Tomko came and not only visited with the homeowner, inspected the basement to see what was the matter with the outside of the house, but also worked with the city to determine how best to redirect the water away from the yard. He put in the grading, he completed the front sidewalk, the back driveway, and put in a curb for the city.” The Executive Director gave other examples of Tomko providing his construction expertise to aid the Pittsburgh affiliate. The Executive Director then testified as to how Tomko could benefit Habitat for Humanity’s efforts to build houses for poor families whose residences were damaged or destroyed by Hurricane Katrina. The Executive Director of the New Orleans affiliate confirmed that Tomko would be useful in these efforts. The Pittsburgh Executive Director concluded her direct testimony by reading a portion of a letter she wrote to the District Court, which stated that “there is no one like Bill Tomko who provides timely, unselfish, and meaningful contributions to Pittsburgh Habitat for Humanity’s construction operations.”

The majority recognizes that “it is well within the discretion of a sentencing judge to consider” charity. Maj. Op. at 171. The majority, though, finds “that Tomko’s ‘support in the community’ and ‘charitable work’ simply did not justify the variance that was granted in this case,” and concludes that “this single factor fails to justify the downward variance granted in this case.” Maj. Op. at 172.

In United States v. Fred E. Cooper, 394 F.3d 172, 176-78 (3d Cir.2005), this Court held that a four-level downward departure was warranted because of the defendant’s good works that were of a personal nature. Id. at 176-78. This departure resulted in three years probation for a defendant who pleaded guilty to one count of securities fraud and one count of subscribing to a false tax return. Notably, this Court examined the sentence de novo because it fell under the PROTECT Act. Accordingly, review under the PROTECT Act is less deferential to a sentencing court than post-Booker reasonableness review under Cooper and its progeny. Fred E. Cooper weighs in favor of affirming Tomko’s sentence because of the similar facts and the *179more stringent standard of review. At a minimum, although Fred E. Cooper involved a departure rather than a variance, it is instructive as to how this Court has viewed charitable activities for sentence mitigation. See Jackson, 467 F.3d at 839 (instructing that “[p]re-Booker law regarding Guidelines departures, therefore, necessarily informs the sentencing process-for district courts and for us”) (citing United States v. Gunter, 462 F.3d 237, 247 (3d Cir.2006), and United States v. King, 454 F.3d 187, 196 (3d Cir.2006)).

With respect to Tomko’s negligible criminal history, record of employment, and charitable work in the community, the majority separated out each of these factors and then concluded that none of them individually provided justification for a substantial downward variance. Perhaps anticipating a critique that an appellate court’s role is to view these factors cumulatively, the majority makes the conclusory statement that “[vjiewed cumulatively, the three factors considered by the District Court as mitigating factors — negligible criminal history, support and ties in the community and charitable work, employment record — pale in comparison to the numerous § 3553(a) factors suggesting that a term of imprisonment is warranted in cases of tax evasion as willful and brazen as Tomko’s.” Maj. Op. at 172. Missing from this statement is an adequate discussion of why, cumulatively, the District Court’s extensive discussion of these factors is an abuse of discretion.

In sum, the majority exercises what amounts to de novo review and does not accord proper deference to the District Court’s sentence, which was imposed after meaningful consideration and reasonable application of the § 3553(a) factors. Under our deferential reasonableness review, Tomko’s sentence should be affirmed. See also 18 U.S.C. § 3553(a) (“The court shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in [§ 3553(a)(2)].”).

Against the backdrop of the District Court’s thorough discussion of the sentencing factors as they apply to Tomko, the majority stresses that the District Court did not specifically mention § 3553(a)(5), which states that a pertinent policy statement from the Sentencing Guidelines is a factor under § 3553(a). For crimes such as Tomko’s, there are two pertinent policy statements. They emphasize the role of general deterrence and reducing disparity in sentencing. See U.S. Sentencing Guidelines Manual eh.2, pt.T, introductory cmt.; § 2T1.1, cmt. background. This latter policy statement mirrors § 3553(a)(6). The majority invokes this omission as the primary ground for overturning Tomko’s sentence as unreasonable. But see United States v. Dragon, 471 F.3d 501, 505 (3d Cir.2006) (stating that “judges need not routinely state that they have read the entire guidelines manual or all policy statements of the United States Sentencing Commission”). There are two main problems with the manner in which the majority relies on Sentencing Guideline policy statements. First, in doing so, the majority functionally exercises de novo review over Tomko’s sentence. I have already discussed why, under reasonableness review rather than de novo review, Tomko’s sentence should be affirmed.

Second, the majority overlooks that, even if we are to give significant weight to these policy statements, the District Court properly considered them in this case.

The “introductory commentary” quoted by the majority states, in part, that “[b]e-cause 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.” *180U.S. SENTENCING GüIDELINES MANUAL ch.2, pt.T, introductory cmt. This focus on general deterrence is defined in the next sentence of the introductory comment, which states that “[recognition that the sentence for a criminal tax case will be commensurate with the gravity of the offense should act as a deterrent to would-be violators.” Id. The District Court in its lengthy discussion excerpted above explained why Tomko’s sentence was commensurate with the gravity of his offense, but did so in light of the other § 3553(a) factors.19 Nothing in this introductory comment instructs courts to ignore § 3553(a)(1), (a)(2)(A), (a)(2)(B), (a)(2)(C), (a)(2)(D), (a)(3), (a)(4), (a)(6), and (a)(7) because of the language in the comment.

The majority asserts that “[a]s a number of our sister circuits have recognized, ‘unjustified reliance upon any one [§ 3553(a)] factor is a symptom of an unreasonable sentence.’ ” Maj. Op. at 172-73 (quoting United States v. Rattoballi, 452 F.3d 127, 137 (2d Cir.2006); accord United States v. Hampton, 441 F.3d 284, 288-89 (4th Cir.2006); United States v. Givens, 443 F.3d 642, 646 (8th Cir.2006); United States v. Cage, 451 F.3d 585, 595-96 (10th Cir.2006)). I agree. But the majority cannot justifiably rely on its interpretation of pertinent policy statements under § 3553(a)(5) to the exclusion of the other § 3553(a) factors. Cf. United States v. Lloyd, 469 F.3d 319, 324 (3d Cir.2006) (“Under Booker, it is entirely appropriate for a court to consider pertinent policy statements.”). The majority cites the applicable policy statement on criminal tax laws to state that general rather than specific deterrence is of paramount importance in these types of cases. See U.S. Sentencing Guidelines Manual ch.2, pt. T, introductory cmt. Recognizing that there is not a mandatory requirement in the Guidelines to consider general deterrence in tax evasion cases, the majority instead cites to a decision by this Court that a sentence must be “minimally sufficient to satisfy concerns of retribution, general deterrence, specific deterrence, and rehabilitation.” Maj. Op. at 166 n. 9 (quoting United States v. Serafini 233 F.3d 758, 776 (3d Cir.2000) (quoting United States v. Kikumura, 918 F.2d 1084, 1111 (3d Cir.1990))). Serafini dealt with perjury rather than tax evasion, and the quote from Kiku-mura refers to the goals of sentencing generally. Serafini and Kikumura certainly do not stand for the proposition that a sentencing court must grant paramount *181importance to the role of general deterrence in tax evasion cases.

In any case, the record before us makes clear that the District Court took all the pertinent factors into account in imposing its sentence, including general deterrence. At the sentencing proceeding, Assistant United States Attorney Conway made several statements indicating that the Government would not be satisfied with a sentence that did not include incarceration. A few examples will give the general tenor of the Government’s position:

1. “He was willing to cheat his country, the very country that provided him with the opportunities to accumulate the wealth he did out of the money that it was rightfully entitled. At a time when our soldiers are risking their very lives for this country, Mr. Tomko can’t even bring himself to pay his country what’s rightfully owed.”
2. “He was having his country and his fellow citizens subsidize his extravagant lifestyle, and the defense portrays him as some sort of great American. Well, I and my fellow citizens, who actually pay their fair share of their taxes, beg to differ.”
3. “I know there are a lot of cynical people in our country that talk about — claiming that money can buy you out of trouble, but that’s not how the system is supposed to work, not in this country. I hope you reflect how the system really works.”
4. “A lengthy term of incarceration is also important for something you didn’t mention in what you just went through, and that’s third party deterrence, particularly in this industry. In this case, if this case is any indication, this contracting industry is riddled, riddled with tax fraud. A sentence of probation tells this industry: Go ahead, cheat on your taxes. If you get caught, you’ll have to pay some money, but you won’t have to go to prison.”
5. “Real deterrence is jail.”
6. “Do the necessary and right thing in this case and send this tax cheat to jail.”

Almost immediately after the Government made these statements, the District Court sentenced Tomko. The Government’s statements regarding general deterrence, seen in statements three through six above, were delivered directly in front of the District Court. A sentencing court does not have to “discuss and make findings as to each of the § 3553(a) factors if the record makes clear the court took the factors into account in sentencing.” Cooper, 437 F.3d at 329 (emphasis added) (citations omitted); see also Rita, 127 S.Ct. at 2469 (noting that “context and the record make clear that this, or similar, reasoning, underlies the judge’s conclusion”). Here, “[t]he record makes clear that the sentencing judge listened to each argument.” Rita, 127 S.Ct. at 2469.

Further, the District Court noted, soon after the Government made its statements about general deterrence, that it viewed Tomko’s sentence as “addressing] the sentencing goals of punishment, deterrence and rehabilitation.” See Rita, 127 S.Ct. at 2468 (“In our view, given the straightforward, conceptually simple arguments before the judge, the judge’s statement of reasons here, though brief, was legally sufficient.”). It heard the Government’s impassioned plea, considered general deterrence, and handed down Tomko’s sentence.

I also note that the District Court’s fine of $250,000 was over eight times above the upper end of the Guideline fíne range. See U.S. Sentencing Guidelines Manual § 5E1.2. The District Court stated that the Guideline fíne range was insufficient deter*182rence because of Tomko’s wealth. This large fine serves goals of both general and specific deterrence, punishing Tomko individually and also sending a signal to others in Tomko’s financial position that a fine far above the Sentencing Guidelines suggestion may follow a guilty plea for tax evasion.20 For these reasons, I believe the District Court took these policy statements into account.

Similarly, the District Court properly considered and applied § 3553(a)(6). The Sentencing Guideline background comment quoted by the majority states, in relevant part, that “[t]his guideline is intended to reduce disparity in sentencing for tax offenses and to somewhat increase average sentence length. As a result, the number of purely probationary sentences will be reduced.” U.S. Sentenoing Guidelines MaNual § 2T1.1, cmt. background. The background comment’s use of the word “reduce” rather than “eliminate” is telling. The District Court specifically addressed the need for consistent sentencing. The District Court stated: “I recognize the need for consistent sentencing; however, in this case, given the Defendant’s lack of any significant criminal history, his involvement in exceptional charitable work and community activity, and his acceptance of responsibility, we find that a sentence that is mitigated by the factors of 3553[is] warranted.” This passage shows that the District Court explicitly considered § 3553(a)(6), which recognizes “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). The background comment in § 2T1.1 mirrors § 3553(a)(6) in all relevant respects. In sum, even if we were to ignore our precedent and give undue weight to § 3553(a)(5), the District Court properly considered this factor. See United States v. Charles, 467 F.3d 828, 833 (3d Cir.2006) (stating that the need for consistent sentencing “is just one factor (if relevant) that should be balanced against the others (again, if relevant)”); United States v. Williams, 458 F.3d 312, 320 (3d Cir.2006) (“Although the Sentencing Guidelines were designed to limit judicial discretion in sentencing to ensure more uniform sentences, it did not eradicate all judicial discretion.”). I also note that an over-reliance on § 3553(a)(6) necessarily encourages sentencing judges to automatically apply the Guidelines. Such a result renders the Guidelines mandatory and runs afoul of Booker.

We must keep in mind that a reviewing court must “apply a deferential standard” to the sentencing court’s application of the factors to the circumstances of the case. Cooper, 437 F.3d at 330. The focus on review is not how the appellate court would have applied the § 3553(a) factors. Rather, the emphasis must be on “whether the district judge imposed the sentence he or she did for reasons that are logical and consistent with the factors set forth” in § 3553(a). Id. at 330 (quotation omitted). This deferential standard recognizes that *183“the trial court [is] in the best position to determine the appropriate sentence in light of the particular circumstances of the case.” Id.', see also 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.”). Simply weighing the § 3553(a) factors differently is no ground for vacating a sentence.

For the reasons stated above, I believe that the majority has applied the wrong standard of review to Tomko’s sentence. The majority incorrectly draws a sharp line between reviewing a district court’s sentence procedurally and reviewing it substantively. As shown by the Supreme Court’s recent decision in Rita, procedural and substantive review are interconnected in the reasonableness analysis. It is true that Justice Breyer’s majority opinion stated in dicta that “[i]n sentencing, as in other areas, district judges at time make mistakes that are substantive. At times, they will impose sentences that are unreasonable. Circuit courts exist to correct such mistakes when they occur.” Rita, 127 S.Ct. at 2466-67. The majority opinion in Rita, though, does not separate process from substance in the same manner as, for example, is done in the Second Circuit. See, e.g., United States v. Trupin, 475 F.3d 71, 74 (2d Cir.2007) (“Although the district court considered the section 3553(a) factors as required by Booker, it erred in its conclusion. This case thus turns on the result — the reasonableness of the sentence as a whole — rather than the process that produced it.” (emphasis added)). The Supreme Court in Rita repeatedly stressed the importance of the process by which the sentencing court arrives at its conclusion. Similarly, our Court’s jurisprudence, beginning with Cooper, stresses meaningful consideration of the § 3553(a) factors and then reasonable application of the factors to an individual defendant. Cooper, 437 F.3d at 329-30. As such, the substance of a sentence cannot be divorced from the process by which the district court handed down its sentence. Put differently, as in Cooper, an evaluation of the resulting sentence is necessarily and closely linked with the process that the sentencing court used to determine that sentence. At no point do we look at the resulting sentence in isolation from the process that led to it. The majority has not cited any case from our Court for the propriety of making such a separation, for the simple fact that no such case exists.21

The extent to which the majority focuses on pure substance can be seen in its repeated references to the need for Tomko to spend time in jail in spite of the District Court’s thorough examination of how and why the individualized § 3553(a) factors warranted a 12 month variance from the lower end of the Guidelines. The most logical inference from these references is *184that it would have been impossible for the District Court in this case to justify the sentence given to Tomko, irrespective of the strength of reasons it provided. I cannot fathom how this conclusion is reconcilable with our post-Booker jurisprudence. See Schweitzer, 454 F.3d at 204 (noting that a sentence outside of the Guidelines range is not presumptively unreasonable). Such a conclusion, however, is necessary to the majority’s conclusion precisely because the District Court gave such explicit consideration to § 3553(a) in imposing Tomko’s sentence.

In order for the Guidelines regime to be truly advisory, a District Court must be able to 'potentially, when the proper situation arises, sentence a defendant outside the Guidelines range but within the statutory range. Any other conclusion would alter the statutory sentencing scheme as passed by Congress and interpreted by Booker. A secondary effect, of course, is to pressure district courts into either crafting sentences within the Guidelines range or, at a minimum, categorically ignoring substantial upward or downward variances. This situation seems to be contrary to Rita’s declaration that courts of appeals may adopt only a “nonbinding appellate presumption that a Guidelines sentence is reasonable.” Rita, 127 S.Ct. at 2466 (emphasis added).

Focusing on substance rather than a combination of substance and process permits the majority to claim that its reasoning is not dependent on the “proportionality principle.” Regardless of whether the majority asserts that its reasoning does not depend on the proportionality principle, its overemphasis on Tomko’s lack of imprisonment rather than the process used to arrive at the sentence of home confinement, 250 hours of community service, three years of probation, 28 days of in-house treatment for alcohol abuse, and a fine of $250,000, leads me to the conclusion that the majority has adopted some variant of the proportionality principle that will be taken up next term in United States v. Gall. Even if the question presented in Gall does not overlap entirely with the legal issues in this case, the Gall decision will more than likely influence or possibly control the outcome of this case. This case should be held c.a.v. pending the outcome of Gall.

III.

The precedential effect of the majority’s opinion will be to deter District Courts from sentencing a defendant to a within-statutory but outside-Guidelines range. This “gravitational pull” toward a within-Guidelines sentence, Rita, 127 S.Ct. at 2487 (Souter, J., dissenting), is much greater in this case than, for example, a “nonbinding appellate presumption” of reasonableness for a within-Guidelines sentence. See id. at 2466. If I were a sentencing judge, I would not know which types of cases fall into the majority’s spectrum of cases that are ineligible for substantial variances regardless of the reasons given by that judge.

A sentencing court has an obligation to tell us how it arrived at the sentence, as the purpose of our meaningful consideration/reasonable application requirement is for the District Court to “state adequate reasons for a sentence on the record so that this court can engage in meaningful appellate review.” United States v. King, 454 F.3d 187, 196-97 (3d Cir.2006). “By articulating reasons, even if brief, the sentencing judge not only assures reviewing courts (and the public) that the sentencing process is a reasoned process but also helps that process evolve.” Rita, 127 S.Ct. at 2469. I do not see how the District Court’s extensive discussion of the relevant facts and law prevents us from engag*185ing in meaningful appellate review. In engaging in this review, I also fail to see how the District Court in this case abused its discretion, in light of its justification for Tomko’s variance. The majority’s holding simply cannot be squared with our decision in United States v. Cooper, 437 F.3d 324 (3d Cir.2006) and its progeny, the text of 18 U.S.C. § 3553(a), or Rita v. United States, — U.S. --, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007). For these reasons, I respectfully dissent.

. The question presented in Gall is “[w]hether, when determining the 'reasonableness' of a district court sentence under United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), it is appropriate to require district courts to justify a deviation from the United States Sentencing Guidelines with a finding of extraordinary circumstances.” See ht tp://www.supremecourtus.gov/qp/06-07949qp.pdf (last accessed August 14, 2007).

. A district court will also face the difficult task of determining when a variance is substantial. In this case, for example, the difference between Tomko's actual sentence and the lower end of his Guidelines range is only 12 months.

. The majority unpersuasively relies on United States v. Ture, 450 F.3d 352 (8th Cir.2006), as support for its viewpoint. Maj. Op. at 166-67. To begin, the Eighth Circuit in Ture did not appear to grant the sentencing judge the type of discretion given by our Court in our -post-Booker jurisprudence. Indeed, the Eighth Circuit stated that "[a]n extraordinary variance from the Guidelines range must be 'supported by comparably extraordinary circumstances’.” Id. at 357 (quoting United States v. Claiborne, 439 F.3d 479, 481 (8th Cir.2006)). As the majority well knows, our Court has not adopted such a standard. Any serious reliance on Ture further counsels in favor of holding the present case c.a.v. pending the Supreme Court’s disposition of United States v. Gall, No. 06-7949, which will examine the propriety of the lack of sentencing court deference in Claiborne and similar cases. There is also no indication that the sentencing court in Ture gave as comprehensive a discussion of the § 3553(a) factors as was given in the present case. Further, the sentencing court in Ture did not fine the defendant or even order restitution. Id. at 355. Tomko, though, was fined upward of eight times the Guidelines range. Similarly, the majority relies on the Second Circuit’s decision in United States v. Rattoballi, 452 F.3d 127 (2d Cir.2006), even though that Court has adopted a more stringent standard of reasonableness than we have. See, e.g., United States v. Trupin, 475 F.3d 71, 74 (2d Cir.2007).

. The District Court also stated that "I have sentenced him to the period of probation, which I recognize is below the guideline range. I also recognize that the fine is above the guideline range. Given the Defendant's wealth, the guideline range in fines is insufficient deterrence. Therefore, I’ve done this mitigation of the sentence under the provisions set forth in 18 U.S.C. § 3553 for the reasons I stated. Taking all these factors into account, the Court sentences the Defendant to a period of probation, a substantial fine, and allows for repayment to the Internal Revenue Service of his outstanding tax obligation.” It is plain that the District Court realized that its sentence fell below the Guidelines range, and that the Court elected to impose this sentence even though the criminal tax laws emphasize general deterrence because of enforcement difficulties.

. I am not even sure that we can legitimately separate process from substance in the sentencing arena. Justice Stevens attempts to do this when, in providing an example of "purely procedural review,” he states that "a district judge who gives harsh sentences to Yankees fans and lenient sentences to Red Sox fans would not be acting reasonably even if her procedural rulings were impeccable.” Rita, 127 S.Ct. at 2473 (Stevens, J., concurring). This contention is effectively rebutted by Justice Scalia, who notes that " '[sjubstance' and ‘procedure’ are admittedly chameleon-like terms.” Id. at 2483 (Scalia, J., concurring in part and concurring in the judgment) (citation omitted). Like Justice Scalia, “my use of the term 'procedure' here includes the limiting of sentencing factors to permissible ones — as opposed to using permissible factors but reaching a result that is 'substantively' wrong.” Id. It is for this reason that Justice Stevens' Yankees/Red Sox example is inapt. Substance and procedure are interrelated.