545 F.3d 1089 (D.C. Cir. 2008), 07-3089, United States v. Gardellini

Docket Nº:07-3089.
Citation:545 F.3d 1089
Party Name:UNITED STATES of America, Appellant v. Gus GARDELLINI, also known as Carlos Gustavo Gardellini, Appellee.
Case Date:November 14, 2008
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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545 F.3d 1089 (D.C. Cir. 2008)

UNITED STATES of America, Appellant


Gus GARDELLINI, also known as Carlos Gustavo Gardellini, Appellee.

No. 07-3089.

United States Court of Appeals, District of Columbia Circuit.

November 14, 2008

Argued Sept. 12, 2008.

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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.

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 United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), and Gall v. United States, __ U.S. __, 128 S.Ct. 586, 169 L.Ed.2d 445 (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.


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.

Gardellini asked the District Court for a below-Guidelines sentence, arguing that he

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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 spent in Belgium, where Gardellini resides with his wife and child.

The Government appealed, arguing that Gardellini's sentence is substantively unreasonable under United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), and Gall v. United States, __ U.S. __, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007).



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, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005); see also Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004); Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (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 the entire Guidelines system “ advisory" rather than

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mandatory. Booker, 543 U.S. at 245, 125 S.Ct. 738. Therefore, the Guidelines are no longer binding law, but rather are one factor that a district court must consider when imposing a sentence. 1

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, 125 S.Ct. 738.2

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 __ U.S. __, 127 S.Ct. 2456, 2468-69, 168 L.Ed.2d 203 (2007); see also United States v. Law, 528 F.3d 888, 902 (D.C.Cir.2008) (adopting presumption of reasonableness for within-Guidelines 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.

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__ U.S. __, 128 S.Ct. 558, 575, 169 L.Ed.2d 481 (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. __ U.S. __, 128 S.Ct. 586, 595, 169 L.Ed.2d 445 (2007). Nor, the Court said, do outside-the-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

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...

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