United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 12, 2008 Decided November 14, 2008 

No. 07-3089 

UNITED STATES OF AMERICA, 

APPELLANT

v. 

GUS GARDELLINI, ALSO KNOWN AS CARLOS GUSTAVO 

GARDELLINI, 

APPELLEE

Appeal from the United States District Court 

for the District of Columbia 

(No. 06cr00355-01) 

Nathan J. Hochman, Assistant Attorney General, U.S. 

Department of Justice, argued the cause for appellant. With 

him on the briefs were Jeffrey A. Taylor, U.S. Attorney, and

Alan Hechtkopf, Attorney. Roy W. McLeese III, Assistant 

U.S. Attorney, entered an appearance. 

David Schertler argued the cause for appellee. With him 

on the brief were David Dickieson and Peter V. Taylor. 

Before: BROWN and KAVANAUGH, Circuit Judges, and 

WILLIAMS, Senior Circuit Judge. 
2 

Opinion for the Court filed by Circuit Judge

KAVANAUGH, in which Circuit Judge BROWN joins. 

Dissenting Opinion filed by Senior Circuit Judge

WILLIAMS. 

KAVANAUGH, Circuit Judge: This case exemplifies our 

deferential substantive review of sentences – including 

outside-the-Guidelines sentences – in the wake of Booker v. 

United States, 543 U.S. 220 (2005), and Gall v. United States, 

128 S. Ct. 586 (2007). The Sentencing Guidelines range for 

defendant Gardellini’s tax offense was 10 to 16 months. The 

District Court imposed probation and a fine. On appeal, the 

Government challenges that below-Guidelines sentence as 

substantively unreasonable. But the Government’s 

Guidelines-centric appellate argument overlooks the twin 

points that the Supreme Court has stressed in its recent 

sentencing decisions: The Guidelines now are advisory only, 

and substantive appellate review in sentencing cases is narrow 

and deferential. As the case law in the courts of appeals since 

Gall demonstrates, it will be the unusual case when we 

reverse a district court sentence – whether within, above, or 

below the applicable Guidelines range – as substantively 

unreasonable. Based on the principles set forth in Booker and 

Gall, we affirm the District Court’s judgment in this case. 

I 

 Gus Gardellini pled guilty to filing a false income tax 

return in violation of 26 U.S.C. § 7206(1). Given Gardellini’s 

offense and offender characteristics, the applicable advisory 

Guidelines range was 10 to 16 months of imprisonment. 
3 

Gardellini asked the District Court for a belowGuidelines sentence, arguing that he had offered extraordinary 

cooperation by providing information to investigators, 

waiving his attorney-client privilege, and agreeing to toll the 

statute of limitations. Gardellini also emphasized that he had 

paid restitution before sentencing and that his crime occurred 

almost ten years earlier. The Government responded by 

contending that Gardellini had provided little information, had 

waived no rights of consequence, and had simply complied 

with the terms of his plea agreement by providing restitution. 

 At sentencing, the court acknowledged the advisory 

Guidelines range, which was 10 to 16 months of 

imprisonment. Hr’g Tr. 45-46, June 29, 2007. Turning to the 

other 18 U.S.C. § 3553(a) factors, the District Court 

emphasized four primary points. First, the court stated that 

Gardellini had cooperated with authorities and accepted 

responsibility for his crimes. See id. at 48 (defendant “didn’t 

put the United States through its paces” but had “owned up to 

[his] crime”). Second, the court found that Gardellini posed 

only a minimal risk of recidivism. Id. (“I have every reason 

to credit your statement . . . when you say that this will never 

happen again.”). Third, the court concluded that Gardellini 

had already “suffered substantially” due to his prosecution, id. 

at 50, noting that Gardellini had been treated for “depression 

due to the stress of the instant investigation,” id. at 45. 

Finally, the court said that “what really deters” tax evaders – 

at least in cases that do not “get a lot of press” – is “the efforts 

of prosecutors . . . in vigorously enforcing the laws.” Id. at 

56. 

 After considering the relevant § 3553(a) factors, the 

District Court chose not to sentence Gardellini to any prison 

time. Instead, the Court imposed a fine of $15,000 and 

probation of five years, subject to certain conditions, to be 
4 

spent in Belgium, where Gardellini resides with his wife and 

child. 

The Government appealed, arguing that Gardellini’s 

sentence is substantively unreasonable under Booker v. United 

States, 543 U.S. 220 (2005), and Gall v. United States, 128 S. 

Ct. 586 (2007). 

II 

A 

The Sentencing Guidelines establish a base offense level 

for the crime of conviction. Under the Guidelines, the district 

court may increase the defendant’s base offense level if the

judge finds certain specified offense or offender 

characteristics. As originally enacted by Congress, the 

Guidelines were mandatory and binding law. See 18 U.S.C. 

§ 3553(b)(1). 

In United States v. Booker, however, the Supreme Court 

interpreted the Sixth Amendment to mean that a defendant’s 

maximum sentence may not be increased as a result of factual 

findings made by the sentencing judge rather than by the jury. 

543 U.S. 220 (2005); see also Blakely v. Washington, 542 

U.S. 296 (2004); Apprendi v. New Jersey, 530 U.S. 466 

(2000). The Court ruled that the Sentencing Guidelines 

therefore violate the Sixth Amendment. 

To remedy the constitutional flaw, the Booker Court 

could have retained the mandatory nature of the Guidelines 

and required that the jury rather than the trial judge find any 

sentencing facts necessary to increase a defendant’s base 

offense level. But the Court, over the dissent of four Justices, 

rejected that proposed remedy. Instead, the Court rendered 
5 

the entire Guidelines system “advisory” rather than 

mandatory. Booker, 543 U.S. at 245. Therefore, the 

Guidelines are no longer binding law, but rather are one factor 

that a district court must consider when imposing a sentence.1 

 1

 Section 3553(a) reads as follows: 

The court shall impose a sentence sufficient, but not greater 

than necessary, to comply with the purposes set forth in paragraph 

(2) of this subsection. The court, in determining the particular 

sentence to be imposed, shall consider— 

(1) the nature and circumstances of the offense and the history 

and characteristics of the defendant; 

(2) the need for the sentence imposed— 

(A) to reflect the seriousness of the offense, to promote 

respect for the law, and to provide just punishment for the 

offense; 

(B) to afford adequate deterrence to criminal conduct; 

(C) to protect the public from further crimes of the 

defendant; and 

(D) to provide the defendant with needed educational or 

vocational training, medical care, or other correctional 

treatment in the most effective manner; 

(3) the kinds of sentences available; 

(4) the kinds of sentence and the sentencing range established 

for— 

(A) the applicable category of offense committed by the 

applicable category of defendant as set forth in the 

guidelines— 

. . . 

(5) any pertinent policy statement— 

. . . 

(6) the need to avoid unwarranted sentence disparities among 

defendants with similar records who have been found guilty of 

similar conduct; and 

(7) the need to provide restitution to any victims of the 

offense. 
6 

As a result, appeals courts do not substantively review 

sentences to ensure conformity with the Guidelines. Rather, 

appellate courts employ an abuse-of-discretion standard and 

substantively review sentences only for “unreasonableness.” 

Booker, 543 U.S. at 264.2

Applying that standard of review in post-Booker cases, 

the Supreme Court has emphasized the discretion of district 

courts to sentence within or outside the Guidelines – and has 

stressed the corresponding need for appellate court deference 

regardless of whether a sentence is within or outside the 

Guidelines. In Rita v. United States, for example, the Court 

ruled that appeals courts may apply a presumption of 

reasonableness to sentences within the Guidelines – the 

upshot being that a within-Guidelines sentence will almost 

never be reversed on appeal as substantively unreasonable. 

See 127 S. Ct. 2456, 2468-69 (2007); see also United States v. 

Law, 528 F.3d 888, 902 (D.C. Cir. 2008) (adopting 

presumption of reasonableness for within-Guidelines 

 2

 Importantly, Gall v. United States distinguished two kinds of 

appellate sentencing review: procedural and substantive. 128 S. 

Ct. 586 (2007). As to procedure, appellate courts must ensure that 

the sentencing court: (1) did not improperly calculate or fail to 

calculate the applicable Guidelines range, (2) did not treat the 

Guidelines as mandatory, (3) did not fail to consider the 18 U.S.C. 

§ 3553(a) factors, (4) did not select a sentence based on “clearly 

erroneous facts,” and (5) did not fail to “adequately explain the 

chosen sentence,” including any deviation from the Guidelines 

range. Id. at 597. As a procedural matter, therefore, the district 

court must initially calculate the correct Guidelines range. But the 

court then may impose a sentence outside that range, and the 

appellate court’s substantive review of the sentence is only for 

“unreasonableness.” 
7 

sentences).3

 In Kimbrough v. United States, the Court held 

that district courts are free in certain circumstances to 

sentence outside the Guidelines based on policy 

disagreements with the Sentencing Commission – and that 

appeals courts must defer to those district court policy 

assessments. 128 S. Ct. 558, 575 (2007). And most 

importantly, in Gall v. United States, the Supreme Court 

explained that appeals courts may not apply a “presumption 

of unreasonableness” for outside-the-Guidelines sentences. 

128 S. Ct. 586, 595 (2007). Nor, the Court said, do outsidethe-Guidelines sentences require a showing of 

“‘extraordinary’ circumstances” or trigger any kind of 

“proportional” appellate review anchored to the Guidelines. 

Id. at 594-95. Those Guidelines-centric appellate approaches 

would “come too close to creating an impermissible 

presumption of unreasonableness.” Id. at 595. 

Under these Supreme Court cases, the appellate court 

should “consider the substantive reasonableness of the 

sentence imposed under an abuse-of-discretion standard.” 

Gall, 128 S. Ct. at 597. “When conducting this review, the 

court will, of course, take into account the totality of the 

circumstances, including the extent of any variance from the 

Guidelines range. . . . It may consider the extent of the 

deviation, but must give due deference to the district court’s 

decision that the § 3553(a) factors, on a whole, justify the 

extent of the variance.” Id. (citation omitted). Applying these 

principles of appellate deference, the Court in Gall upheld a 

sentence of probation in a drug-dealing case where the 

Guidelines range was 30 to 37 months.4

 3

 Our research has disclosed no case since Rita where an 

appeals court has reversed a procedurally proper within-Guidelines 

sentence as substantively unreasonable. 

4

 In a paragraph discussing the district court’s sentencing 

responsibilities, the Gall Court explained that the district court must 
8 

The substantive reasonableness inquiry that we must 

conduct on appeal boils down to the following question: In 

light of the facts and circumstances of the offense and 

offender, is the sentence so unreasonably high or 

unreasonably low as to constitute an abuse of discretion by 

the district court? Analytical difficulty arises because 

determining whether a sentence is unreasonably high or 

unreasonably low raises a subsidiary question: Compared to 

what? The Supreme Court has made crystal clear that the 

Guidelines are not the sole or definitive benchmark for an 

appeals court in assessing the substantive reasonableness of a 

sentence. Moreover, the § 3553(a) factors that district courts 

must consider at sentencing are vague, open-ended, and 

conflicting; different district courts may have distinct 

sentencing philosophies and may emphasize and weigh the 

individual § 3553(a) factors differently; and every sentencing 

decision involves its own set of facts and circumstances 

regarding the offense and the offender. When all those points 

are combined with our deferential abuse-of-discretion 

standard of review, the result becomes evident: It will be the 

 

start with the Guidelines as the “initial benchmark” and “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.” 128 S. Ct. at 

596-97. It is important to note that this paragraph of the Gall 

opinion provided guidance to the district court. The appeals court, 

by contrast is required to give “due deference” to the district court’s 

“decision that the § 3553(a) factors, on a whole, justify the extent of 

the variance,” id. at 597, and to apply the “deferential abuse-ofdiscretion standard of review . . . to all sentencing decisions,” id. at 

598. “[I]t is not for the Court of Appeals to decide de novo whether 

the justification for a variance is sufficient or the sentence 

reasonable.” Id. at 602. 
9 

unusual case when an appeals court can plausibly say that a 

sentence is so unreasonably high or low as to constitute an 

abuse of discretion by the district court. To be sure, there is 

still substantive review of sentences; the Supreme Court has 

not adopted Justice Scalia’s suggestion to completely 

eliminate substantive appellate review. See Gall, 128 S. Ct. at 

602-03 (Scalia, J., concurring). But our substantive 

reasonableness review is deferential and not tied to the 

Guidelines alone, as the post-Gall jurisprudence in the courts 

of appeals amply demonstrates.5

 

 5 See, e.g., United States v. Thurston, 544 F.3d 22 (1st Cir. 

2008) (affirming three-month sentence, constituting time served, 

and supervised release where applicable Guidelines sentence was 

60 months); United States v. Howe, 543 F.3d 128 (3d Cir. 2008) 

(affirming probationary sentence where applicable Guidelines range 

was 18 to 24 months); United States v. Evans, 526 F.3d 155 (4th 

Cir. 2008) (affirming 125-month sentence where applicable 

Guidelines range was 24 to 30 months); United States v. Pauley, 

511 F.3d 468 (4th Cir. 2007) (affirming 42-month sentence where 

applicable Guidelines range was 78 to 97 months); United States v. 

Duhon, 541 F.3d 391 (5th Cir. 2008) (affirming probationary 

sentence where applicable Guidelines range was 27 to 33 months of 

imprisonment); United States v. Vowell, 516 F.3d 503 (6th Cir. 

2008) (affirming 780-month sentence where applicable Guidelines 

range was 188 to 235 months and applicable mandatory minimum 

was 300 months); United States v. McIntyre, 531 F.3d 481 (7th Cir. 

2008) (affirming 144-month sentence where applicable Guidelines 

range was 37 to 46 months); United States v. Austad, 519 F.3d 431 

(8th Cir. 2008) (affirming 84-month sentence when applicable 

Guidelines range was 37 to 46 months); United States v. Ruff, 535 

F.3d 999 (9th Cir. 2008) (affirming one-day prison term and 

supervised release where applicable Guidelines range was 30 to 37 

months); United States v. Smart, 518 F.3d 800 (10th Cir. 2008) 

(affirming 120-month sentence where applicable Guidelines range 

was 168-210 months); cf. United States v. Cutler, 520 F.3d 136 (2d 

Cir. 2008) (finding 366-day sentence with supervised release 
10 

With that background, we turn to Gardellini’s case. 

B 

 The Government acknowledges that the District Court 

committed no procedural error in imposing the sentence in 

this case – a deliberate concession the Government expressly 

repeated multiple times at oral argument. See Oral Arg. at 

7:08-16, 20:36-45, Sept. 12, 2008; cf. In re Sealed Case, 527 

F.3d 188 (D.C. Cir. 2008) (vacating and remanding sentence 

due to procedural error). Instead, the Government posits that 

Gardellini’s sentence of probation was substantively

unreasonable under Booker and Gall.

6

 

 

substantively unreasonable where applicable Guidelines range was 

78 to 97 months); United States v. Abu Ali, 528 F.3d 210 (4th Cir. 

2008) (finding 30-year sentence for terrorism-related offenses 

substantively unreasonable where applicable Guidelines range was 

life imprisonment); United States v. Pugh, 515 F.3d 1179 (11th Cir. 

2008) (finding probation for child pornography possession 

substantively unreasonable where the applicable Guidelines range 

was 97 to 120 months); David C. Holman, Note, Death by a 

Thousand Cases: After Booker, Rita, and Gall, the Guidelines Still 

Violate the Sixth Amendment, 50 WM. & MARY L. REV. 267, 298-

300 (2008) (arguing that a few circuits are improperly preserving a 

form of proportionality review even after Gall). 

6

 Judge Williams contends that the distinction between 

procedural and substantive review “is irrelevant here.” Dissenting 

Op. at 2. But Gall specifically indicates that appellate courts 

“must” and “should” divide the sentencing review process into 

procedural and substantive phases. Gall, 128 S. Ct. at 597. As the 

Supreme Court has made clear, the procedural requirement that the 

district court “consider” a particular § 3553(a) factor does not 

depend on how heavily the court weighs that factor. Compare Gall, 

128 S. Ct. at 598-600 (noting repeatedly as part of its procedural 

review analysis that the District Court “did consider” or 
11 

The Government’s argument flies in the face of the 

Supreme Court’s precedents. The District Court found that 

Gardellini had cooperated with authorities and accepted 

responsibility for his crimes to an extraordinary degree, posed 

no risk of recidivism, and already suffered substantially due to 

the criminal investigation into his wrongful actions. See Hr’g 

Tr. 48-50. Those findings were directly relevant to the 

§ 3553(a) analysis, which requires sentences to reflect, among 

other things, “the history and characteristics of the 

defendant,” the need to “protect the public from further 

crimes of the defendant,” the need to “provide just 

 

“considered” various § 3553(a) factors), with id. at 600, 602 (noting 

twice under its substantive review analysis that the District Court 

“quite reasonably attached great weight” to one or another 

§ 3553(a) factor); see also In re Sealed Case, 527 F.3d at 191 (“a 

district judge need not consider every § 3553(a) factor in every 

case, and we generally presume the judge ‘knew and applied the 

law correctly’”) (quoting United States v. Godines, 433 F.3d 68, 70 

(D.C. Cir. 2006)). And once the procedural question has been 

resolved, “the only question for the Court of Appeals” is the 

substantive question of “whether the sentence was reasonable – i.e., 

whether the District Judge abused his discretion in determining that 

the § 3553(a) factors supported” the chosen sentence. Gall, 128 S. 

Ct. at 600. At times, Judge Williams suggests that the District 

Court committed the procedural error of not having “‘consider[ed] 

all of the § 3553(a) factors,’” particularly the deterrence factor. 

Dissenting Op. at 2 (quoting Gall, 128 S. Ct. at 596); see also Gall, 

128 S. Ct. at 598. But the Government itself disclaimed any such 

procedural argument. In any event, contrary to the dissent’s 

suggestion, the District Court did consider the goal of deterrence, 

expressly noting that that factor did not weigh heavily in this case. 

See Hr’g Tr. 56, June 29, 2007. Judge Williams’s real objection 

appears to be the substantive charge that the District Court did not 

afford deterrence adequate weight and that the sentence is therefore 

unreasonable. 
12 

punishment for the offense,” and the need to “afford adequate 

deterrence.” 18 U.S.C. § 3553(a)(1)-(2). The District Court’s 

conclusion rests on precisely the kind of defendant-specific 

determinations that are within the special competence of 

sentencing courts, as the Supreme Court has repeatedly 

emphasized. 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.”); see also Gall, 128 S. 

Ct. at 597. In light of the facts and circumstances of the 

offense and offender and the deference we must give the 

District Court, we cannot say that the court abused its 

discretion in giving Gardellini probation and a fine. 

It bears mention that the Government’s argument is 

inconsistent not only with the Supreme Court’s analytical 

approach, but also with the result in Gall. In that case, the 

Supreme Court affirmed a sentence of probation even though 

Gall faced a 30-to-37-month Guidelines range for his drugdealing offense – far greater than the 10-to-16-month range 

for Gardellini. In light of the fact that the Supreme Court 

affirmed a sentence of probation for Gall, who committed a 

more serious offense and faced a higher Guidelines range, it is 

all but impossible to say that a sentence of probation is per se 

unreasonable for Gardellini. 

The Government contends more generally that upholding 

the light sentence in this case will lessen the deterrent value of 

the criminal law. If so, that is the result of Supreme Court 

precedents such as Gall that we are bound to follow. 

Moreover, the Government’s argument based on deterrence 

alone is flawed because it elevates one § 3553(a) factor – 

deterrence – above all others. As § 3553(a) makes clear, 

however, the district court at sentencing must consider and 

balance a number of factors – not all of which will point in 
13 

the same direction. In any event, we question the force of the 

Government’s deterrence argument, even when it is 

considered in isolation. Although Gardellini may have been 

treated leniently, the next similarly situated tax offender 

cannot expect the same treatment. Another defendant in this 

same situation might well receive an above-Guidelines 

sentence. In light of the discretion afforded to district courts 

by the Supreme Court’s sentencing decisions, only a fool 

would think that he or she necessarily would receive the same 

sentence as Gardellini for a similar tax offense. 

C 

 The fundamental problem with the Government’s 

submission in this case is that it takes insufficient account of 

the big picture of current sentencing jurisprudence. The 

central teaching of Gall is that the Guidelines are truly 

advisory. Therefore, different district courts can and will 

sentence differently – differently from the Sentencing 

Guidelines range, differently from the sentence an appellate 

court might have imposed, and differently from how other 

district courts might have sentenced that defendant. And 

appellate courts may not reverse a district court simply 

because the Sentencing Commission, a reviewing appellate 

court, or another district court “might reasonably have 

concluded that a different sentence was appropriate.” Gall, 

128 S. Ct. at 597. 

To be sure, it may be considered anomalous that the 

Supreme Court’s chosen remedy for a Guidelines system that 

gave district judges too much power to find key sentencing 

facts was to give district judges even more discretion and 

authority. See Michael W. McConnell, The Booker Mess, 83 

DENV. U. L. REV. 665, 677 (2006) (“The most striking feature 

of the Booker decision is that the remedy bears no logical 
14 

relation to the constitutional violation.”); see also Richard M. 

Ré, Re-Conceptualizing Booker: How to Prevent Legislatures 

From Circumventing the Right to Jury Trial 6-38 (Sept. 25, 

2008) (available on SSRN). But that’s water over the dam. 

The bottom line is this: District judges now have far more 

substantive discretion in sentencing than they had pre-Booker. 

Therefore, whether the defendant receives a sentence within, 

above, or below the Guidelines range, both the Government 

and defense counsel would be well-advised to understand that 

it will be an unusual case where an appeals court overturns a 

sentence as substantively unreasonable – as the post-Rita,

post-Gall case law in the courts of appeals shows. 

This new sentencing regime inevitably will lead to 

sentencing disparities and inequities that can be explained by 

little more than the identities of the sentencing judges. 

Unpredictability and uncertainty in sentencing no doubt will 

ensue. See Gall, 128 S. Ct. at 604-05 (Alito, J., dissenting); 

In re Sealed Case, 527 F.3d at 199 (Kavanaugh, J., 

dissenting); United States v. Shy, 538 F.3d 933, 939-40 (8th 

Cir. 2008) (Colloton, J., concurring). But the Supreme Court 

recognized those consequences to some degree in Booker and 

Kimbrough. See Kimbrough, 128 S. Ct. at 574; Booker, 543 

U.S. at 263-65. And it is not our role to fight a rear-guard 

action to preserve quasi-mandatory Guidelines. To the extent 

the post-Booker federal sentencing system is unwise or 

inequitable – or becomes a roll of the dice that depends too 

much on the sentencing judge – those concerns must be 

addressed by the Congress and the President, who have the 

authority to produce new legislation. After all, as the 

remedial decision in Booker made plain and as Justice Souter 

more recently reiterated in Gall, the Sixth Amendment 

permits mandatory Sentencing Guidelines so long as the jury 

rather than the judge finds the key sentencing facts used to 

increase the defendant’s base offense level. See Booker, 543 
15 

U.S. at 265 (“Ours, of course, is not the last word: The ball 

now lies in Congress’ court. The National Legislature is 

equipped to devise and install, long term, the sentencing 

system, compatible with the Constitution, that Congress 

judges best for the federal system of justice.”); Gall, 128 S. 

Ct. at 603 (Souter, J., concurring) (“I continue to think that 

the best resolution of the tension between substantial 

consistency throughout the system and the right of jury trial 

would be a new Act of Congress: reestablishing a statutory 

system of mandatory sentencing guidelines (though not 

identical to the original in all points of detail), but providing 

for jury findings of all facts necessary to set the upper range 

of sentencing discretion.”). The political branches thus retain 

the power to re-balance the values of individualized 

sentencing and district court discretion against the goals of 

sentencing uniformity and predictability. 

* * * 

 We affirm the judgment of the District Court. 

So ordered.
WILLIAMS, Senior Circuit Judge, dissenting: Happily for 

the United States, most people pay their taxes. More happily, 

most pay out of a sense of conscience and perhaps even public 

spirit (plus IRS collection of W-2s and 1099s), with the threat 

of fines and prison only rather remotely in the back of their 

minds. There is, however, a set of taxpayers for whom these 

motives are not strong enough to overcome the advantages of 

cheating. Defendant Gardellini is one of them. 

By means of offshore accounts, Gardellini deliberately 

avoided income tax on capital gains from real estate, on 

ordinary income from the exercise of stock options, and on 

interest from those accounts, inflicting a $94,000 revenue loss 

on the Treasury. He is not alone. The IRS estimates that tax 

fraud on individual income tax returns generates revenue 

losses of about $197 billion a year (not counting $25 billion in 

losses from nonfiling). Internal Revenue Service, Reducing 

the Federal Tax Gap: A Report on Improving Voluntary 

Compliance 10 (Aug. 2, 2007), http://www.irs.gov/pub/irsnews/tax_gap_report_final_080207_linked.pdf (2001 tax 

year). Nonetheless, in sentencing Gardellini, the district court 

gave no weight to one of the goals stated by 18 U.S.C. 

§ 3553(a)(2)(B): deterring others from committing similar 

crimes. As a result, whereas the Sentencing Guidelines set a 

range of 10–16 months imprisonment, the court sentenced 

Gardellini to probation and a $15,000 fine. (The probation, I 

should note, will be served in Belgium, where his wife is an 

EU official. He will thus not be subject to the usual 

restrictions inherent in probation, such as susceptibility to 

searches, which the Supreme Court has found important in 

evaluating the reasonableness of a probation sentence. See 

Gall v. United States, 128 S. Ct. 586, 595-96 (2007).) I 

believe disregard of the deterrence factor was an abuse of 

discretion and would therefore reverse and remand for 

resentencing.
2

* * * 

On appeal no presumption of reasonableness or 

unreasonableness governs a non-Guidelines sentence, id. at 

597; we review for abuse of discretion and owe the district 

court’s judgment no more than “due deference,” id. Review 

here might be complicated by the government’s apparent 

renunciation at oral argument of any claim of procedural 

irregularity. Tr. of Oral Arg. at 8. There is (for me at least) 

some obscurity in the Supreme Court’s division of grounds for 

reversal into procedural and substantive categories. Compare 

Gall, 128 S. Ct. at 598 (considering as a possible procedural

error a district judge’s alleged failure “to give proper weight” 

to a mandatory § 3553 factor), with id. at 601 (considering as 

a possible substantive error a district judge’s alleged giving of 

weight to an improper factor). But the distinction is irrelevant 

here. Whatever counsel may have meant, he clearly did not 

intend to throw away the government’s opening contention—

challenging the district court’s treatment of the deterrence 

goal—which occupied about four of the 13 pages of its 

opening brief’s “Argument” section. 

Although imprecise, the abuse-of-discretion standard is 

no mere rubberstamping. At a minimum, it includes making 

sure the district judge “consider[ed] all of the § 3553(a) 

factors to determine whether they support the sentence 

requested by a party.” Id. at 596. When the district court’s 

sentence is outside the advisory Guidelines range, as here, our 

job is to review the sentence under “the totality of the 

circumstances,” giving “due deference to the district court’s 

decision that the § 3553(a) factors, on a whole, justify the 

extent of the variance.” Id. at 597. Given the Gall Court’s 

careful examination of the government’s claims of erroneous 

factor weightings, see id. at 600-01, the panel’s formulation of 

our appellate role—to determine whether “[i]n light of the 

facts and circumstances of the offense and offender, is the 
3

sentence so unreasonably high or unreasonably low as to 

constitute an abuse of discretion by the district court,” Maj. 

Op. at 8—may be too narrow. 

Here the district court appeared to deny any weight to the 

statutory goal of deterring others from the commission of 

similar crimes. 18 U.S.C. § 3553(a)(2)(B); see United States 

v. Phinazee, 515 F.3d 511, 515–16 (6th Cir. 2008) (explaining 

that deterrence within the meaning of § 3553(a)(2)(B) 

encompasses deterrence not only of the defendant but also of 

others). 

As it does in this court, the government at sentencing 

advocated a within-Guidelines term of imprisonment as a 

means of deterring others from committing similar crimes. 

Defense counsel recognized that the deterrence goal presented 

a problem, acknowledging that “[t]he only factor that . . . is at 

all persuasive in the government’s argument about why there 

should be a sentencing guideline range sentence here[] is the 

one of deterrence.” Appendix (“App.”) 119. Consequently, 

defense counsel set out to “undermine[] the government’s 

argument about deterrence,” explaining that “if you take away 

that argument on deterrence, if you balance the [remaining] 

3553 factors, a probationary sentence is entirely reasonable.” 

Id. at 120. 

The district court was evidently convinced that you could 

“take away” deterrence, saying: 

The deterrence, it’s not so much the sentence that this 

court imposes—frankly, I don’t—you know, maybe this 

will get a lot of press, I don’t know, I doubt it. But what 

really deters is the efforts of prosecutors like this 

Assistant U.S. Attorney in vigorously enforcing the laws 

of the country, particularly in these tax cases. 
4

App. 136. In Gardellini’s non-newsworthy case, accordingly, 

the court effectively dismissed the deterrent effect of a 

sentence as irrelevant. 

But deterrence is a primary consideration in choosing the 

appropriate sentence for any tax crime, newsworthy or not. 

As the Guidelines explain, 

Because 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. 

U.S. Sentencing Guidelines Manual ch. 2, pt. T, introductory 

cmt. (2007) (same language as in the 2000 edition, which was 

used to calculate Gardellini’s advisory sentencing range). 

The Guidelines’ generalization is quite sound. The 

resources available for tax enforcement are scarce and the 

probability of getting caught is low. In fact, for fiscal year 

2007, the IRS audited only 1.03% of all individual returns. 

Internal Revenue Service, Fiscal Year 2007 IRS Enforcement 

and Service Statistics 3, http://www.irs.gov/pub/irsnews/irs_enforcement_and_service_tables_fy_2007.pdf. The 

IRS understandably doesn’t publish its criteria for singling out 

returns that it will audit. Though Gardellini’s income 

probably gave him a more-than-average likelihood of an audit, 

the chance was still quite low. See id. at 4 (reporting the audit 

statistic for those with incomes exceeding $100,000 and 

$200,000 as 1.77% and 2.87%, respectively). Assuming an 

audit risk of 3%, the $15,000 fine imposed had an ex ante 

expected value of less than $500; taxpayers who are tempted 

to cheat, and who observe Gardellini’s treatment, will find the 

risk-reward ratio very attractive. 
5

In addition, Gardellini used offshore accounts to 

completely conceal his liability-generating transactions. 

Thus, nothing in the nature of what he disclosed gave an eyecatching, audit-eliciting quality to the returns covering his 

four years of tax fraud. And even if the IRS had audited his 

returns, it was far less likely to know about unreported capital 

and ordinary gains, and interest income, than in cases (for 

example) of interest from domestic accounts, of which the 

IRS learns via required disclosures from the payors 

themselves. Here, as the government explained at sentencing, 

it “learned about Mr. Gardellini’s foreign bank account only 

because of an execution of a search warrant in an unrelated 

case.” App. 103. In other words, Gardellini’s crime surfaced 

solely because he had engaged in financial transactions with 

somebody already under the tax authorities’ suspicion. 

The district court’s explanation for disregarding 

deterrence under § 3553(a)(2)(B) is at odds with the overall 

sentencing scheme. Under Gall a district court judge is 

obliged to “explain his conclusion that an unusually lenient or 

an unusually harsh sentence is appropriate in a particular case 

with sufficient justifications.” Gall, 128 S. Ct. at 594. The 

duty of explanation, Gall reasoned, is “to allow for 

meaningful appellate review and to promote the perception of 

fair sentencing.” Gall, 128 S. Ct. at 597 (emphasis added); 

see also In re Sealed Case, 527 F.3d 188, 191 (D.C. Cir. 

2008) (quoting this language). The Court in Rita v. United 

States, 127 S. Ct. 2456 (2007), also notes this link between 

judicial explanation and public “perception,” observing: 

“Confidence in a judge’s use of reason underlies the public’s 

trust in the judicial institution. A public statement of those 

reasons helps provide the public with the assurance that 

creates the trust.” Id. at 2468. 

The obvious premise here is that members of the public 

get word of what goes on at sentencing. We may assume that, 
6

as is common in criminal sentencings, there was no press 

coverage of Gardellini’s proceedings, and that the courtroom 

audience was thin. But we have no real knowledge about how 

information travels in the relevant audience—those inclined 

toward tax cheating and seriously concerned at the margin 

with the potential criminal consequences. Moreover, the 

district court’s reliance on the absence of press coverage has a 

troublesome flipside: if its logic is accepted, courts must give 

deterrence a hefty weight for notorious defendants—as we 

may be sure that word of their sentencings will get out—but 

only for such defendants. 

If, as the Supreme Court tells us, the explanation duty is 

motivated in part by concern for public perceptions, surely a 

district court cannot assume those perceptions away as a basis 

for ditching a § 3553 factor. But that is precisely what the 

majority’s holding allows. 

It may be that after Kimbrough v. United States, 128 

S. Ct. 558 (2007), the district court may excise a § 3553 factor 

from the mix on policy or philosophical grounds. See id. at 

574–75 (leaving the matter open). And basing a person’s 

punishment on that punishment’s impact on other people 

indeed raises ethical issues. See, e.g., James B. White, 

Making Sense of the Criminal Law, 50 U. Colo. L. Rev. 1, 26 

(1978). But such a reasoned philosophical viewpoint is quite 

different from zeroing out deterrence on the basis of reasoning 

that is inconsistent with the Supreme Court’s vision of the 

scheme as a whole. 

Thus, pace the panel opinion, it is not enough to say that 

“the District Court did consider the goal of deterrence, 

expressly noting that that factor did not weigh heavily in this 

case.” Maj. Op. at 11 n.6. In light of the district court’s 

explanation, giving deterrence no weight at all amounted to an 

unreasonable weighing of the sentencing factors. We 
7

therefore cannot make a statement paralleling that of the 

Supreme Court in Gall—that the district court “quite 

reasonably attached great weight” to a particular factor, 128 S. 

Ct. at 600; the district court did not “reasonably attach” great 

weight to the emptiness of the courtroom and lack of press 

coverage, and thus no weight to the interest in deterrence. 

* * * 

The district court’s decision was a textbook example of 

an abuse of discretion, making Gardellini’s sentence 

substantively unreasonable. I respectfully dissent from the 

majority’s contrary conclusion.