Of the District of New Hampshire, sitting by designation. *

Not for Publication in West's Federal Reporter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
-2-

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
-3-

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)).
-4-

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
-5-

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.