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Third Circuit Follows Olhovsky Decision with another Pro-Defense Opinion in Tomko – Ruling a Lenient Sentence Is Not Unreasonable

Posted On: May 11, 2009 by Marc Neff

One day following the Third Circuit’s precedential opinion in U.S. v. Olhovsky, the Court issued an en banc decision in the case of U.S. v. Tomko, again holding that a lenient, below-guidelines sentence is not unreasonable if supported by mitigating circumstances. In Tomko, the Defendant pled guilty to Federal tax evasion charges; stipulating to a tax loss of $228,557 for work performed on his own home but disguised as expenses to his company via false invoices. At sentencing the District Court looked to the sentencing guidelines which called for a prison term of twelve (12) to eighteen (18) months, as well as a fine. The trial Judge then took into consideration the mitigating factors associated with the case, such as the fact the Defendant was a first-time offender, the Defendant was involved in philanthropic activity, and that imprisonment of the Defendant would pose great risk to the employment of his company’s over three hundred (300) workers. The Judge decided to depart from the guidelines, sentencing the Defendant to three (3) years probation (the first of which to be served under House Arrest), two hundred fifty (250) hours of community service, and a fine of $250,000. Although the sentence was well below guidelines regarding incarceration, the fine was above the range provided by the guidelines ($3,000 – $30,000).

The sentence was appealed by the Government as being too lenient; specifically, the Government felt imposing a sentence of House Arrest to be served in the Defendant’s home, having been improved through the Defendant’s criminal tax evasion, was unreasonable. The Appellate panel reversed the sentence, ruling that the leniency of the sentence was procedurally unreasonable because the District Court had not addressed the necessity for general deterrence of criminal activity, allowing the Defendant to serve his sentence in his mansion; the center of the tax fraud case. The Third Circuit Court of Appeals then granted a rehearing en banc to determine if the panel decision to reverse was correct.

The Court cited to precedence in Gall v. U.S., which established the principle that “the fact that the appellate court might reasonably have concluded that a different sentence was appropriate is insufficient to justify reversal of the district court.” The Court determined that based on the record, the District Judge sufficiently considered the arguments that the Defendant’s offense merited prison time and that by imposing a lesser sentence, a message would be sent that wealthy individuals could “buy” their way out of trouble. Although a dissenting opinion states that the Defendant did not distinguish himself from other tax evaders, the majority decision asserts the mitigating factors considered by the District Judge merited the sentence of probation.

There are many types of white collar crime, including Tax Evasion and Fraud. Attorney Marc Neff has over 20 years experience successfully representing corporate and business executives, professionals, public officials, and others charged with federal white collar crimes. For a confidential consultation, contact our office via phone at (215) 563-9800 or via e-mail at

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