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PHILADELPHIA — White-collar criminals are going to find it much more difficult to avoid prison now that the Third Circuit U.S. Court of Appeals has declared that a sentence of probation and house arrest for a confessed tax cheat was not “reasonable” despite his extensive charity work that included helping to build homes in the wake of Hurricane Katrina. But a dissenting judge complained that his colleagues were improperly engaging in a de novo review of the sentence instead of giving appropriate deference to the trial judge who had thoroughly explained his reasons for leniency. The disagreement among the appellate judges in United States v. Tomko illustrates the difficulties lower courts are facing in sorting out how to apply the federal sentencing guidelines now that the U.S. Supreme Court has ruled that they are merely advisory. The crux of the dispute is how to discern what the justices meant in United States v. Booker when they said that appellate courts would have the power to review sentences for “reasonableness.” Writing for the majority, Judge D. Michael Fisher said “reasonableness review, while deferential, is not utterly impotent.” Fisher found that the reasons articulated by U.S. District Judge Gary Lancaster in giving a sentence of probation to William Tomko simply didn’t justify a sentence that included no prison time for a sophisticated tax cheat and instead placed him under house arrest in the luxurious mansion that his tax cheating had paid for. But in dissent, Judge D. Brooks Smith said he believed the appellate court’s role was to ensure only that the trial judge had “meaningfully considered” all of the appropriate factors outlined in the sentencing statutes, and that, in his view, Lancaster had done so.

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