United States of America v. William Tomko

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 05-4997
UNITED STATES OF AMERICA,
Appellant
v.
WILLIAM TOMKO
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. No. 04-cr-00108)
District Judge: Honorable Gary L. Lancaster
Argued October 24, 2006
Before: SMITH, FISHER and COWEN, Circuit Judges.
ORDER AMENDING OPINION
IT IS HEREBY ORDERED that the opinion in the above case, filed August 20,
2007, be amended as follows:
Page 15, footnote 7, second and third sentences, which read:
The dissent argues we impermissibly re-weigh the District
Court’s consideration of some of the § 3553(a) factors, and in
doing so, engage in de novo review. See Dissenting Op. at
49-50 . . .
shall read:
The dissent argues we impermissibly re-weigh the District
Court’s consideration of some of the § 3553(a) factors, and in
doing so, engage in de novo review. See Dissenting Op. at 48
. . .

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Page 16, footnote 7, first full paragraph, first two sentences, which read:
As an alternative to our approach, the dissent proposes
an exceedingly limited, procedurally focused review that
would require us to subordinate our own analysis of a
sentence’s substantive compliance with the § 3553(a) factors
to the District Court’s analysis. See Dissenting Op. at 49
(“The majority would, apparently, have applied these factors
differently had it been the sentencing court. I would have
done so as well.”); id. at 39 . . .
shall read:
As an alternative to our approach, the dissent proposes
an exceedingly limited, procedurally focused review that
would require us to subordinate our own analysis of a
sentence’s substantive compliance with the § 3553(a) factors
to the District Court’s analysis. See Dissenting Op. at 47
(“The majority would, apparently, have applied these factors
differently had it been the sentencing court. I would have
done so as well.”); id. at 38 . . .
Page 39, first full paragraph, fifth and sixth sentences, which read:
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 28.
shall read:
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 27.
Page 39, first full paragraph, seventh and eighth sentences, which read:
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

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a sentence including a term of imprisonment.” Maj. Op. at
27.
shall read:
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
26.
Page 48, second and third full sentences, which read:
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 31.
shall read:
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 30.
Page 48, first full paragraph, which read:
Similarly, the majority discounts Tomko’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 31. 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 32. . . .
shall read:
Similarly, the majority discounts Tomko’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 30. 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 31. . . .

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Page 50, first full paragraph, which read:
The majority recognizes that “it is well within the
discretion of a sentencing judge to consider” charity. Maj.
Op. at 33. 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 36.
shall read:
The majority recognizes that “it is well within the
discretion of a sentencing judge to consider” charity. Maj.
Op. at 32. 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 35.
Page 52, first line through second sentence, which read:
. . . the majority makes the conclusory statement that
“[v]iewed 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 37.
shall read:
. . . the majority makes the conclusory statement that
“[v]iewed 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 36.
Page 55, first full paragraph, which read:
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 36-37 . . .

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shall read:
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 35-36 . . .
Page 56, first and second lines, which read:
deterrence, specific deterrence, and rehabilitation.” Maj. Op.
at 23 n.9 . . .
shall read:
deterrence, specific deterrence, and rehabilitation.” Maj. Op.
at 22 n.9 . . .
By the Court,
/s/ D. Michael Fisher
Circuit Judge
Dated: August 21, 2007
CLC\cc: Alan Hechtkopf, Esq. S. Robert Lyons, Esq.
Cynthia R. Eddy, Esq. J. Alan Johnson, Esq.

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