In upholding a district judge’s below-guideline sentence in a tax fraud case, Judge Brett Kavanaugh of the U.S. Court of Appeals for the D.C. Circuit has offered a critique—and a solution—to an advisory regime he says “inevitably will lead to sentencing disparities and inequities.”
Gus Gardellini was accused of cheating the Internal Revenue Service out of $94,000, using off-shore accounts to avoid paying income tax from, among other sources, capital gains on real estate. U.S. District Judge Henry Kennedy in June sentenced Gardellini—who faced a guideline sentence of 10 to 16 months in prison—to five years of probation and a $15,000 fine. Prosecutors were not happy and appealed to the D.C. Circuit, which affirmed the lenient punishment in a split-vote published last week.
Guideline sentences are advisory under the Supreme Court decisions in United States v. Booker (2005) and Gall v. United States (2007). Appeals courts examine sentences to determine whether the punishment is unreasonable. Gardellini pled guilty to filing a false income tax return, and his lawyers, David Schertler and Danny Onorato of D.C.’s Schertler & Onorato, argued for a downward departure for cooperation. (Gardellini even waived attorney-client privilege.) Nathan Hochman, assistant attorney general in charge of the Justice Department tax division, argued on appeal, among other things, that Kennedy failed to weigh a deterrence effect in sentencing Gardellini.
“The government’s arguments flies in the face of the Supreme Court’s precedents,” Kavanaugh declared. The government, Kavanaugh wrote, "takes insufficient account of the big picture of current sentencing jurisprudence. The central teaching of Gall is that the guidelines are truly advisory.” Given the discretion in the hands of district court judges, Kavanaugh said prosecutors and defense counsel should be “well-advised” that “it will be an unusual case” where an appeals court overturns a sentence as unreasonable.
“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,” Kavanaugh wrote. “Unpredictability and uncertainty no doubt will ensue. 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 Congress and the president, who have the authority to produce new legislation.”
Judge Janice Rogers Brown agreed with Kavanaugh. But Judge Stephen Williams dissented—exploring the role the the press plays in deterring criminal activity through the publication of sentencing hearings. Deterrence is a primary factor in sentencing defendants in tax cases, Williams noted, because of the limited number of prosecutions compared to the estimated number of violations. Williams called the district judge's decision a "textbook example of an abuse of discretion."
But the district judge, Williams wrote, found the deterrent effect irrelevant. Williams called Gardellini's case "non-newsworthy" and assumed few reporters—if any at all—covered the hearing. “Moreover,” Williams wrote, “the district court’s reliance on the absence of press coverage has a troublesome flipside: if its logic is accepted, courts must give a 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.”
Gardellini is serving his probation in Belgium, where he lives with his wife and child. “We are very pleased with the opinion. This is a major step toward providing discretion to trial judges to impose the appropriate sentence based upon the individual case and the individual defendant,” Schertler, the defense lawyer, told the BLT.