United States v. Tom ( 2008 )

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 07-1074
UNITED STATES OF AMERICA,
Appellant,
v.
MICHAEL K.C. TOM,
Defendant, Appellee.
ON REMAND FROM THE UNITED STATES SUPREME COURT
Before
Lynch and Lipez, Circuit Judges,
and Barbadoro,* District Judge.
Jonathan F. Mitchell, Assistant United States Attorney,
Michael J. Sullivan, United States Attorney, Paul G. Levenson,
Chief, Economic Crimes Unit, and Dina Michael Chaitowitz, Chief of
Appeals, on supplemental brief for appellant.
Mark W. Pearlstein and McDermott Will & Emery LLP on
supplemental brief for appellee.
April 30, 2008
*
Of the District of New Hampshire, sitting by designation.
LYNCH, Circuit Judge. The government appealed as
unreasonably lenient a sentence of thirty-six months of probation
(including six months of community confinement) imposed on Michael
Tom, who pled guilty to five counts of insider trading in violation
of 15 U.S.C. §§ 78j(b) and 78ff(a). We agreed with the
prosecution, vacated the sentence, and remanded the case to the
district court for resentencing in accordance with our opinion.
The Supreme Court vacated this court's judgment and remanded the
case for reconsideration under Gall v. United States, 128 S. Ct.
586 (2007). See United States v. Tom, 504 F.3d 89 (1st Cir. 2007),
vacated, 128 S. Ct. 1132 (2008).
We have asked for and received briefs from both sides on
the effect of Gall. Defendant takes the position that we must now
affirm the district court's sentence; the prosecution takes the
position that Gall does not affect our prior analysis and that the
district court's sentence is plainly an abuse of discretion on its
own analysis. We choose a middle course and, after consideration
of Gall, remand the sentence to the district court for
reconsideration. This is consistent with the approach this court
outlined in United States v. Martin, 520 F.3d 87 (1st Cir. 2008).
In Martin, this court interpreted Gall as incorporating
certain principles for sentencing at the district court level.
First,
a sentencing court should not consider itself
constrained by the guidelines to the extent
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that there are sound, case-specific reasons
for deviating from them. Nor should a
sentencing court operate in the belief that
substantial variances from the guidelines are
always beyond the pale. Rather, the court
should "consider every convicted person as an
individual and every case as a unique study in
the human failings that sometimes mitigate,
sometimes magnify, the crime and the
punishment to ensue." Gall, 128 S. Ct. at 598.
Id. at 91.
In addition,
the fact that a sentencing court possesses the
raw power to deviate from the guidelines does
not mean that it can (or should) do so
casually. The court's reasons for deviation
should typically be rooted either in the
nature and circumstances of the offense or the
characteristics of the offender; must add up
to a plausible rationale; and must justify a
variance of the magnitude in question.
Id. (citing United States v. Scherrer, 444 F.3d 91, 93 (1st Cir.
2006) (en banc); United States v. Jiménez-Beltre, 440 F.3d 514, 519
(1st Cir. 2006) (en banc)).
Further, "notwithstanding this need for an increased
degree of justification commensurate with an increased degree of
variance, there is no stringent mathematical formula that cabins
the exercise of the sentencing court's discretion. Indeed, after
Gall the sentencing inquiry - once the court has duly calculated
the GSR - ideally is broad, open-ended, and significantly
discretionary." Id. at 91-92 (citing United States v.
Vega-Santiago, 519 F.3d 14, 20 (1st Cir. 2008) (en banc)).
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Martin also construed Gall on the principles that inform
appellate review. After considering whether the district court
committed procedural errors, the appellate court must, giving
deference to the discretion of the district court, still consider
whether the district court sentence is substantively reasonable.
Id. at 92.
In our earlier opinion, we explained why we considered
the ultimate sentence in this case substantively unreasonable in
light of the explanations given by the district court in
sentencing. See Tom, 504 F.3d at 94. We did not then, nor do we
now, use any type of mechanistic formula or proportionality.
Our opinion identified three categories of concern with
the district court's sentence: the court's desire to avoid a
disparity of sentences between Tom and a cooperating co-defendant
sentenced by another judge; the court's recognition that Tom was
subject to civil sanctions by the Securities and Exchange
Commission; and the court's reliance on Tom's "family problem,"
namely his need to care for his daughter. Id. at 93. In our view,
the justifications given by the court for its lenient sentence did
not adequately consider the national interests in federal
sentencing, exemplified in part by the Sentencing Guidelines. See
Gall, 128 S. Ct. at 594 ("For even though the Guidelines are
advisory rather than mandatory, they are . . . the product of
careful study based on extensive empirical evidence derived from
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the review of thousands of individual sentencing decisions."); see
also id. at 597 ("If [the court] decides that an outside-Guidelines
sentence is warranted, [it] must consider the extent of the
deviation and ensure that the justification is sufficiently
compelling to support the degree of the variance. We find it
uncontroversial that a major departure should be supported by a
more significant justification than a minor one."). Nor did the
explanations given, in our view, justify the sentence on the basis
of the defendant's individual characteristics.
The prosecution's proposal that we simply reinstate our
prior reasoning and result does not strike us as sound. It is
fairer, we think, to remand the sentence for reconsideration in
light of the concerns we expressed in our prior decision, the
Supreme Court's elucidation of district court sentencing procedure
in Gall, and the issues the parties have raised in their briefs to
us. Any sentence imposed by the district court should be
accompanied by a new statement of reasons.
We intimate no views on what would be outside the range
of sentences which are within the discretion of the district court.
So ordered.
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