Of the Federal Circuit, sitting by designation. *

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
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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 fortyeight 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)
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(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
The Government also argues that appellate courts may not review 1

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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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
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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").
 In Rita, 127 S. Ct. at 2463, the Supreme Court held that it was 2

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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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
 The discretion left to district judges in the wake of Booker, 3

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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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
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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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
 We wonder, however, whether terming a sentence "guideline" or 4

"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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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). Under 18 U.S.C. 4

§ 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
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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
 As we noted in Thurston II, although a district court might 5

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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. . . 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). We do not see why Taylor is an 5

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.
Taylor cites various cases in which other defendants have 6

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.

-22-

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." 18 U.S.C. § 3553(a)(6). The Sentencing 6

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-
-23-

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.