UNITED STATES of America, Appellant v. William TOMKO, 498 F.3d 157

OPINION OF THE COURT FISHER, Circuit Judge. The Government appeals from a judgment of sentence imposed on William Tom-ko, Jr., who pleaded guilty to a fraudulent scheme to evade personal income taxes. Tomko’s fraudulent scheme resulted in a tax deficiency of more than $225,000. The District Court imposed a below-Guidelines sentence consisting of 250 hours of community service, three years of probation (including one year of house arrest), and a fíne of $250,000. Tomko was also ordered to undergo twenty-eight days of in-house treatment for alcohol abuse.

As discussed below, this sentence is unreasonable in light of the circumstances of this case and the sentencing factors outlined in 18 U.S.C. § 3558(a). It was therefore an abuse of discretion for the District Court to impose it and we will vacate the judgment and remand for resentencing. I. BACKGROUND William G. Tomko, Jr., pleaded guilty to a fraudulent scheme to evade federal income taxes that revolved around the construction of his luxurious new home in southwestern Pennsylvania.

From 1996 through 1998, during the construction of this home, Tomko had numerous subcontractors falsify their billing invoices to make it appear their work had been done for his construction company, W.G. Tomko, Inc. (“Tomko, Inc.”), at one of its job sites, rather than for Tomko, the individual, at his personal residence. As a result, the company paid the construction costs of the home, illegally deducted the expenses, and Tomko did not properly report the value of the construction costs paid for by the company as income on his personal income taxes.

The scheme resulted in a stipulated tax deficiency of $228,557. Numerous subcontractors were involved in Tomko’s scheme. One subcontractor, for example, who installed the lawn sprinkler system at Tomko’s residence, told Internal Revenue Service-Criminal Investigation Division (IRS-CID) investigators that he wrote billing invoices at Tomko’s behest that made it appear his work had been done at one of five local area schools. Because Tomko, Inc. was working jobs at these local schools, the company could appear to be legitimately paying the invoices.

As a result, the construction costs were diverted from Tomko personally to Tomko’s company, which then deducted them as expenses. Similarly, another subcontractor, who installed the granite and marble countertops throughout Tomko’s home, told the IRS-CID investigators that Tomko had stated “I’ll pay you but this is how I want it written up.” Tomko then instructed him to prepare invoices indicating that the work had been done at one of the local area schools so that Tomko, Inc. could foot the bill and deduct the expenses.

There are even more egregious examples in the record of this sort of fraudulent misrepresentation. One subcontractor, who built custom cabinetry for Tomko’s house, stated that he was told by Tomko to “be creative” in his billing and that he had previously been “tipped” that Tomko was running the costs of the construction through his business. Another subcontractor, who installed stainless steel kitchen fixtures at the house, stated that Tom-ko told him he “wanted this job run through [a local school]” and that the billing invoice was to be sent to Tomko, Inc.

Another subcontractor, who did specialty wiring at the house, stated that Tomko instructed him to prepare false invoices indicating that the services he had provided for the house were actually done for yet another local school. IRS-CID investigators interviewed seventeen individuals in all with respect to Tomko’s scheme. While the details vary from individual to individual, in most eases the pattern of conduct resembled the examples already described !

Tomko attempted to evade paying taxes by fraudulently diverting construction costs through his company, Tomko, Inc., deducting the costs as business expenses, and then failing to report as income the value of the services provided to him personally. On October 4, 2001, an IRS-CID agent contacted Tomko to advise him there was an allegation of unreported income against him and to request an interview. On May 11, 2004, Tomko waived indictment and pleaded guilty to a one-count information charging tax evasion for 1997, in violation of 26 U.S.C. § 7201. Tomko was sentenced on September 30, 2005.

At the sentencing hearing, the District Court properly recognized its obligation to calculate the correct advisory United States Sentencing Guidelines (“Guidelines”) offense level and concluded that the applicable offense level was thirteen. The recommended Guidelines sentencing range for this offense level is twelve to eighteen months of incarceration, but defense counsel proposed, in lieu of imprisonment, that Tomko be allowed to do volunteer work with Habitat for Humanity and assist in its efforts to provide housing for victims of Hurricane Katrina.

Counsel stated “I wouldn’t ask that normally, Your Honor, but it seems to me that if he were sitting in prison, whether it’s minimum security or medium security or whatever, and he could be helping the people who have been so devastated so significantly in the New Orleans area and in the Gulf Coast area....” Defense counsel then presented as a witness the Executive Director of the Pittsburgh affiliate of Habitat for Humanity, who was first contacted about Tomko’s interest in volunteering, after Tomko’s guilty plea. The Director was generous in her appraisal of Tomko.

She testified that his construction expertise and local contacts had helped the organization immensely and that he had been able to contribute substantially to a number of their ongoing construction projects. She outlined the Pittsburgh Habitat for Humanity’s plans to aid in the Gulf Coast reconstruction efforts by building prefabricated housing (“Home in a Box Program”) for shipment to the Gulf Coast and Tom-ko’s assistance in that effort.

Defense counsel also proffered testimony from Tomko, Inc.’s chief financial officer stating that Tomko’s absence from the company could very well place Tomko, Inc. in dire straits financially. The Court indicated that it had reviewed and considered all motions and briefs submitted by the parties. One of these motions was a Motion for Downward Departure, in which defense counsel stated as grounds for downward departure: (1) the effect incarceration would have on Tomko’s business, causing a job loss to more than 300 innocent employees;

(2) Tomko’s exceptional charitable and community activities; (3) extraordinary acceptance of responsibility; and (4) a combination of factors. The motion included as exhibits over fifty letters from friends, family, and community leaders attesting to Tomko’s generosity and compassion. After stating that it had reviewed and considered all motions and briefs submitted by the parties, the District Court then proceeded to place on the record its consideration of the Guidelines and the § 3553 factors.

First, in considering the nature and circumstances of the offense, § 3553(a)(1), the District Court found that the offense was nonviolent, not ongoing in nature, not part of a larger pattern of criminal activity, and that there were no identifiable victims of - the offense. Regarding the history and characteristics of the defendant, id., the Court noted Tom-ko’s good family history, educational attainment, gainful employment, and negligible criminal history. It also observed that Tomko had a drinking problem that could benefit from treatment and moderate depression that was already being treated.

Second, in applying § 3553(a)(2), the Court considered that tax evasion was a serious offense, but that Tomko had led an otherwise crime-free life and there was little likelihood of recidivism.

Finally, in addressing § 3553(a)(3), (4), and (6), the Court considered the kinds of sentences available and “the need for unwarranted sentence disparities among Defendants with similar records who have been found guilty of similar conduct” and acknowledged that “these considerations generally weigh in favor of sentencing a Defendant within the Guidelines range.” The Court then concluded: However, this need to avoid unwarranted sentence disparities among Defendants with similar records also gives me enough leniency [] to understand that there are differences and those differences have to be taken into account.

I recognize the need for consistent sentencing; however, in this case, given the Defendant’s lack of any significant criminal history, his involvement in exceptional charitable work and community activity, and his acceptance of responsibility, we find that a sentence that is mitigated by the factors of 3553 are warranted.

In urging the District Court to sentence Tomko to incarceration rather than home confinement, the Government observed that Tomko had “cheated his Government out of the money to build his house” and that “it would be a travesty of justice to put [Tomko] in the very mansion he stole from the Government, from these very citizens.” It also asserted that probation would be sending the message “you can buy your way out of trouble.” Speaking of the contracting industry specifically, which it suggested was “riddled with tax fraud,” the Government argued that a sentence of probation would be interpreted as “go ahead, cheat on your taxes.

If you get caught, you’ll have to pay some money, but you won’t have to go to prison.” The Government argued that “real deterrence is jail” and “the threat of jail is real for these white collar criminals that commit tax fraud” and “[w]hat we need to do is make good on this threat.” Summing up its impassioned plea, the Government concluded: Bottom line, Your Honor, is that a sentence of probation is just a rich guy buying his way out of jail, a validation of the efficacy of cheating on your taxes, a slap in the face to honest citizenry, grossly unfair to our indigent Defendants, and a travesty of justice.

Do the necessary and right thing in this case and send this tax cheat to jail. The District Court then sentenced Tom-ko to 250 hours of community service, three years of probation with one year of home confinement, and ordered him to pay a fine of $250,000. Tomko was also ordered to undergo twenty-eight days of in-house alcohol treatment. As reason for this judgment, the District Court stated: Defendant stands before us for sentencing after pleading guilty to tax evasion.

A review of the Defendant’s financial condition paints a picture of a very wealthy man who had the means and the wherewithal to easily pay whatever tax obligation is owing. He was a successful businessman earning a significant salary. There is simply no reason for him to have done this. This being said, I also note his negligible criminal history, his record of employment, his support for and ties in the community, and extensive charitable work he has done. I have also — therefore, I have sentenced him to a period of probation, which I recognize is below the guideline range.

Given the Defendant’s wealth, the guideline range in fines is insufficient deterrence. Therefore, I’ve done this mitigation of the sentence under the provisions set forth in 18 U.S.C. § 3553 for the reasons I stated. Taking all these factors into account, the Court sentences the Defendant to a period of probation, a substantial fine, and allows for repayment to the Internal Revenue Service of his outstanding tax obligation. The Court views that this sentence will address the sentencing goals of punishment, deterrence and rehabilitation.

As this excerpt demonstrates, the Court recognized that the sentence was below the Guidelines, but explained that it had mitigated the sentence in consideration of factors set forth in 18 U.S.C. § 3553. The Government filed a timely notice of appeal. II. JURISDICTION AND STANDARD OF REVIEW We have jurisdiction to review the judgment of sentence of the District Court under 18 U.S.C. § 3742(b)(1). See United States v. Cooper, 437 F.3d 324, 327 (3d Cir.2006). We review the sentence imposed for “reasonableness,” the standard announced by the Supreme Court in United States v.

Booker, 543 U.S. 220, 125 5.Ct. 738, 160 L.Ed.2d 621 (2005), after the Court held that mandatory application of the Guidelines was unconstitutional. Id. at 261-62, 125 S.Ct. 738. In Rita v.

United States, — U.S. -, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007) (affirming the application of a presumption of reasonableness by a court of appeals to a district court’s within-Guidelines sentence), the Court clarified that the reasonableness standard of appellate review is akin to abuse of discretion and accordingly deferential, giving trial judges broad discretion to craft sentences that they believe promote the sentencing goals stated in 18 U.S.C. § 3553(a). See id. at 2465 (“[Ajppellate ‘reasonableness’ review merely asks whether the trial court abused its discretion.”).

However, before we can conclude that a sentencing court properly exercised its discretion, we must assure ourselves that it actually gave “meaningful consideration” to the § 3553(

a) factors and “reasonably applied them to the circumstances of the case.” Cooper, 437 F.3d at 330. Ultimately, “what we must decide is whether the district judge imposed the sentence he or she did for reasons that are logical and consistent with the factors set forth in

section 3553(a).” Id. (citation omitted). The Court in Rita was careful to emphasize the importance of effective substantive oversight by the Courts of Appeals over sentencing in the District Courts. See Rita, 127 S.Ct. at 2466. (“In sentencing, as in other areas, district judges at time make mistakes that are substantive. At times, they will impose sentences that are unreasonable. Circuit courts exist to correct such mistakes when they occur.”). Consequently, reasonableness review, while deferential, is not utterly impotent.

As the Second Circuit has stated, “review for reasonableness, though deferential, [does] not equate to a rubber stamp.” United States v. Rattoballi, 452 F.3d 127, 132 (2d Cir.2006) (internal quotation marks omitted). Similarly, the Eleventh Circuit has observed that there is “a difference between deference and abdication.” United States v. Crisp, 454 F.3d 1285, 1290 (11th Cir.2006). Indeed, While “reasonableness is a range, not a point,” Cooper, 437 F.3d at 332 n. 11 (quoting United States v.

Cunningham, 429 F.3d 673, 679 (7th Cir.2005)), a range by definition has both upper and lower limits that will be exceeded in some cases. This case requires us to plumb the lower depths of that range. III. DISCUSSION The Government, as the appellant in this case, bears the burden of establishing that the sentence imposed is unreasonable in light of both the record and the § 3553(

a) factors. Id. at 332. The Government states that the “bottom line” in this case is “that a rich defendant was allowed to buy his way out of a prison sentence.” While we resist such ad hominem arguments and do not think the finer issues presented by this appeal can be so bluntly summarized, we do share what we perceive to be the underlying sentiment of the Government’s appeal. That is, a defendant who committed a very serious offense “did not receive so much as a slap on the wrist — it was more like a soft pat.” Crisp, 454 F.3d at 1291.

As will more fully explain, we believe the sentence imposed in this case is unreasonable in light of the facts and circumstances revealed in the record and the § 3553(

a) factors. A. The recommended Guidelines sentencing range for the offense in this case was twelve to eighteen months of incarceration. Although the Guidelines are advisory, they must still be afforded due weight as a factor under § 3553(a)(4). In addition, the Guidelines continue to be a vital force in sentencing as they “reflect a rough approximation of sentences that might achieve § 3553(a)’s objectives.” Rita, 127 S.Ct. at 2458.

See also id. (“[The Commission] has tried to embody in the Guidelines the factors and considerations set forth in § 3553(a).”); id. at 2458 (“The upshot is that the sentencing statutes envision both the sentencing judge and the Commission as carrying out the same basic § 3553(

a) objectives, the one, at retail, the other at wholesale.”). When the Guidelines, “drafted by a respected public body with access to the best knowledge and practices of penology, recommend that a defendant be sentenced to a number of years in prison, a sentence involving no ... imprisonment can be justified only by a careful, impartial weighing of the statutory sentencing factors.” United States v. Goldberg,491 F.3d 668, 673 (7th Cir.2007). Notably, the Guidelines and its policy statements, themselves both separately applicable as § 3553(

a) factors, in this case reiterate and reinforce the sentencing mandate of § 3553(a)(2), which directs the district courts to consider “the need for the sentence imposed ... to reflect the seriousness of the offense, to promote respect for the law, [ ] to provide just punishment for the offense ... [and] to afford adequate deterrence to criminal conduct ....”§ 3553(a)(2)(A)-(B).

Guidelines policy statements, relevant under § 3553(a)(5) (requiring consideration of “any pertinent policy statement ... issued by the Sentencing Commission ... that ... is in effect on the date the defendant is sentenced”), emphasize the seriousness of the offense of tax evasion, § 3553(a)(2)(A), observing: Under pre-guidelines sentencing practice, courts sentenced to probation an inappropriately high percentage of offenders guilty of economic crimes, such as theft, tax evasion, antitrust offenses ... that in the Commission’s view are ‘serious’....

The Commission’s solution to this problem has been to write guidelines that classify as serious many offenses for which probation previously was frequently given and provide for at least a short period of imprisonment in such cases. U.S.S.G. Manual ch.l, pt.A, intro, emt. 4(d). In addition, Guidelines policy statements underscore the need for tax prosecutions to provide just punishment and promote respect for the law, § 3553(a)(2)(A), and provide for deterrence, § 3553(a)(2)(B): Criminal tax prosecutions serve to punish the violator and promote respect for the tax laws.

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. Recognition that the sentence for a criminal tax case will be commensurate with the gravity of the offense should act as a deterrent to would-be violators. U.S.S.G. Manual eh.2, pt.T, intro, cmt. (1997). We share with the Government concern about the message a sentence of probation for the indisputably serious offense of willful tax evasion sends to the public at large and would-be violators.

Tomko’s sentence of probation included home confinement in the very mansion built through the fraudulent tax evasion scheme at issue in this case — an 8,000-square-foot house on approximately eight acres, with a home theater, an outdoor pool and sauna, a full bar, $1,843,500 in household furnishings, and $81,000 in fine art. The perverse irony of this gilded cage confinement was not lost on the Government, it is not lost on us, and it would not be lost on any reasonable public observer of these proceedings, including those would-be offenders who may be contemplating the risks associated with willful tax evasion.

Under the circumstances, a sentence of probation does not reflect the seriousness of the offense, promote respect for the law, provide just punishment for the offense, § 3553(a)(2)(A), or provide adequate deterrence. § 3553(a)(2)(B). The Government argues that in this case “real deterrence is jail,” and this position finds support in United States v. Ture, 450 F.3d 352 (8th Cir.2006). The underlying facts of Ture and our own case are nearly identical. Ture, like Tomko, induced others to disguise income as deductible corporate expenses. Id. at 354.

This failure to report funds as income led to a tax deficiency of $240,252 in Ture’s case, id. at 355, whereas in Tomko’s case the stipulated tax deficiency was $228,557. Finally, in both cases the Guidelines range was twelve to eighteen months and both district courts sentenced the defendants to probation and community service rather than imprisonment.

Concluding that the district court’s granting of a downward variance was unreasonable, the Eighth Circuit noted that “[a]s the Guidelines explain, willful tax evaders often go undetected such that those who are caught ... evading nearly a quarter-million dollars in tax must be given some term of imprisonment.” Id. at 358. It reasoned that, in the case of willful tax evaders, “[t]he goal of deterrence rings hollow if a prison sentence is not imposed....” Id.

The Second Circuit has also had occasion to consider the negative implications of sentencing white collar criminals to terms of probation rather than imprisonment. In United States v. Rattoballi, 452 F.3d 127 (2d Cir.2006), the defendant pleaded guilty to antitrust law violations. The recommended Guidelines range was twenty seven to thirty three months but the district court imposed a sentence consisting of five years probation, including one year of home confinement, and $155,000 in restitution. Id. at 135.

In reversing and remanding that judgment of sentence, the Second Circuit took note of the Sentencing Commission’s considered judgment that “jail terms are ordinarily necessary for antitrust violations because they ‘reflect the serious nature of and the difficulty of detecting such violations.’ ” Id. at 136 (quoting Amendments to the Sentencing Guidelines for United States Courts, 56 Fed.Reg. at 22,775 (1991)). We find the reasoning of Ture and Rat-toballi persuasive.

Although the sentence in this case, like the sentence in Ture, represents “in effect, a 100% downward variance from the Guidelines range,” 450 F.3d at 357, our focus is on the qualitative, rather than quantitative, significance of this variance. The result here means Tomko avoids serving time in a federal prison, a result which, as we have already stated, we believe is inconsistent with the overarching sentencing goals outlined in § 3553(a)(2)(A)-(B).

Section 3553(a)(6) further directs sentencing courts consider “the need to avoid unwarranted sentencing disparities among defendants with similar records who have been found guilty of similar conduct.” The Guidelines elaborate on this theme, explaining: Under pre-guidelines practice, roughly half of all tax evaders were sentenced to probation without imprisonment, while the other half received sentences that required them to serve an average prison term of twelve months. This guideline is intended to reduce disparity in sentencing for tax offenses and to somewhat increase average sentence length.

As a result, the number of purely probationary sentences will be reduced. The Commission believes that any additional costs of imprisonment that may be incurred as a result of the increase in the average term of imprisonment for tax offenses are inconsequential in relation to the potential increase in revenue. U.S.S.G. Manual § 2T1.1 cmt. background. The District Court stated on the record that “it recognized the need for consistent sentencing” but imposed a sentence that contributes to rather than reduces the marked disparity referred to by the Commission.

Furthermore, to the extent that the District Court explained that such a sentence was warranted by mitigating factors, as we discuss infra II.B, these mitigating factors failed to distinguish Tomko from other “defendants with similar records ... found guilty of similar conduct.” Thus, we cannot conclude that the sentence imposed in this case is logical and consistent with § 3553(a)(6). In addition, it is clear from the record that Tomko’s was no garden variety tax evasion offense.

Tomko’s scheme spanned over a number of years, involved the planning, coordination, and coercion of multiple individuals, required a sophisticated scheme of concealment through fraudulent billing, and resulted in a stipulated tax loss of over $225,OOO. Further, the issue of whether the “leadership role” enhancement requested by the Government was properly denied is not before us and we do not conclude, as the Government has suggested, that the District Court’s failure to rule on this disputed portion of the record may form the sole basis of remand in this case. Viewed cumulatively, we conclude that the § 3553(

a) factors advocate in the strongest possible terms for a sentence including a term of imprisonment. Swimming against this strong tide, the District Court concluded a downward variance was merited in Tomko’s case because of (1) his negligible criminal history, (2) his record of employment, (3) his support for and ties in the community, and his extensive charitable work; and (4) a combination of these factors. Under the circumstances, our review of the District Court’s consideration of these mitigating factors takes on greater significance.

By this statement, we do not mean to suggest a formulaic application of the “proportionality principle” that has been adopted by so many of our sister circuits. However, we do believe that closer appellate scrutiny of sentences that deviate from the norm is necessary to prevent the unwarranted disparities that bedeviled the pre-Sentencing Reform Act discretionary sentencing regime and prompted reform.

Booker, 543 U.S. at 253, 125 S.Ct. 738; see also id. at 255, 125 S.Ct. 738 (“Congress enacted the sentencing statutes in major part to achieve greater uniformity in sentencing”); id. at 263, 125 S.Ct. 738 (emphasizing that unreasonableness review will play a central role in advancing Congress’s original aim in enacting the Sentencing Reform Act because it will “tend to iron out sentencing differences”).

While we recognize that the District Court is entitled to great deference in sentencing post-Booker, we also must be mindful of the deference we owe to Congress and its “basic statutory goal” of diminishing unwarranted sentencing disparity. Id. at 256, 125 S.Ct. 738. If sentences that vary substantially from the norm based on facts that are plainly unexceptional are allowed to proliferate, we will fail to fulfill our role in moving sentencing in the direction of uniformity, as Booker envisioned. B.

The Government argues that reliance on Tomko’s negligible criminal history as a mitigating factor was inappropriate insofar as negligible criminal history is already factored into his base offense level. See U.S.S.G. Manual § 4A1.3 cmt. background (“[T]he lower limit of the range for the Criminal History Category I is set for a first offender with the lowest risk of recidivism. Therefore, a departure below the lower limit of the guideline range ... on the basis of the adequacy of criminal history cannot be appropriate.”); Koon v.

United States, 518 U.S. 81, 111, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996) (noting the Commission already took low risk of recidivism into account in formulating the criminal history category). However, given the flexible nature of the sentencing scheme post-Booker, we cannot conclude it is unacceptable for the same facts to be used both to set the Guidelines range and to apply the other § 3553(

a) factors. The Seventh Circuit had opportunity to address the identical issue that arises in this appeal, and reasoned “if Booker means anything at all, it must mean that the court was permitted to give further weight to a factor covered by a specific guidelines adjustment, especially where (as is true here) that factor is present to an exceptional degree or in some other way makes the case different from the ordinary case where the factor is present.” United States v. Wallace, 458 F.3d 606, 613 (7th Cir.2006) (internal quotation marks, citations omitted). We believe that WaJ-lace’s, explication of a situation in which a § 3553(

a) factor (here, § 3553(a)(1)) is persuasive. However, while negligible criminal history may have been an appropriate factor for the sentencing court to consider, on its own it does not provide strong support for the variance in this case, given that it was already factored into Tomko’s base offense level. Similarly, record of employment is relevant as an aspect of a defendant’s history and characteristics. Under the Guidelines, courts have traditionally been discouraged from considering a defendant’s education and vocational skills in sentencing. See U.S.S.G. Manual § 5H1.2.

The Guidelines position on this factor, however, is difficult to square with the Booker imperative that sentencing courts are to give meaningful consideration to all of the factors under § 3553(a). Certainly, an individual’s record of employment is relevant to that analysis. More importantly, as we have already emphasized, the Guidelines are a factor in sentencing, not a mandate. United States v. Gunter, 462 F.3d 237, 249 (3d Cir.2006).

Therefore, it is appropriate to consider record of employment as a mitigating factor in sentencing, and in some cases may be justified as fair consideration of a defendant’s “history and characteristics” under § 3553(a)(1). See Rita, 127 S.Ct. at 2462 (Stevens, J., concurring) (“Matters such as age, education, mental or emotional condition, medical condition (including drug or alcohol addiction), employment history, lack of guidance as a youth, family ties, or military, civic, charitable, or public service are not ordinarily considered under the Guidelines [but are] matters that § 3553(

a) authorizes the sentencing judge to consider.”). The Government argues, however, that in this particular case the District Court’s granting Tomko a variance in part because of his record of employment is “inconsistent with its finding that defendant had threatened the contractors with nonpayment and lost business opportunities unless they submitted falsified invoices as defendant instructed.” Appellant’s Br. 19. Admittedly, this finding creates considerable tension.

However, the District Court also heard evidence that presented Tomko as “a person with a high school education who built a multi-million dollar company and hires [] 300 people and looks after them like family.” In addition, at sentencing proceedings, counsel proffered testimony from Tomko, Inc.’s chief financial officer stating that Tomko’s absence from the company could place Tomko, Inc. in financial trouble. However, like negligible criminal history, this factor is certainly not in itself a reasonable basis for the sentence in this case.

An admirable record of employment is a characteristic common to many white-collar criminals and we are “disinclined to accord the prospect of business failure decisive weight when it is a direct function of a criminal investigation that had its origins in the defendant’s own unlawful conduct.” Rattoballi, 452 F.3d at 136; United States v. Sharapan, 13 F.3d 781, 785 (3d Cir.1994) (“[W]e see nothing extraordinary in the fact that the imprisonment of the principal [of the business] for mail fraud and filing false corporate tax returns may cause harm to the business and its employees.

The same is presumably true in a great many cases in which the principal of a small business is jailed for comparable offenses.... ”); U.S. v. Reilly, 33 F.3d 1396, 1424 (3d Cir.1994) (“[W]e see nothing extraordinary in the fact that [the defendant’s] conviction may harm not only his business interests but also those of his family members.”). Finally, the District Court relied heavily on Tomko’s community ties and purportedly extensive charitable work.

The Guidelines provide that a defendant’s charitable works are “not ordinarily relevant,” and discourage downward departures from the normal sentencing range based on good works — that is, civic, charitable, or public service. See U.S.S.G. Manual § 5H1.11. We must note, however, that consideration of such good works is not specifically prohibited, and, especially in the post-Booker world, we believe it is well within the discretion of a sentencing judge to consider such factors. Under the Guidelines, departures for charitable work are recommended only when the good works are “exceptional.” See U.S.S.G.

Manual ch. 5, pt. H, introductory cmt. (departures based on discouraged factors should occur only “in exceptional cases”); see also United States v. Serafini, 233 F.3d 758, 775 (3d Cir.2000) (explaining that in order to be entitled to a downward departure for good works, a defendant’s civic service, charity, and philanthropy must be “beyond the norm,” i.e., “exceptional,” for a person with his or her resources and social status). We considered downward departures based on charitable factors in U.S. v. (Fred E.) Cooper, 394 F.3d 172 (3d Cir.2005).

In our case, however, as previously stated, a variance rather than a departure is at issue. In addition, (Fred E.) Cooper was decided prior to Booker and Cooper under a de novo standard of review. Nonetheless, the case is still relevant and persuasive, see United States v. Jackson, 467 F.3d 834, 839 (3d Cir.2006) (“[0]ur Circuit’s pre-Booker case law ... continues to have advisory force.”), and provides valuable insight. In (Fred E.) Cooper, the defendant was convicted of various offenses related to an abuse of his position as chief executive and financial officer of a large corporation.

At his sentencing hearing, the district court heard testimony and received letters describing defendant’s various charitable activities, which included organizing and coaching a youth football team in a depressed area, mentoring team members, paying the cost for several of them to attend a better high school, and assisting one of the team members to attend college.

The district court granted the defendant a four-level downward departure for these charitable activities, finding that his acts were “hands-on personal sacrifices” that had a dramatic and positive impact on the lives of others and that were exceptional. 394 F.3d at 173-74.

On appeal, we noted that “more is expected of ‘high-level business executives’ who enjoy sufficient income and community status so that they have the opportunities to engage in charitable and benevolent activities” and that “it is usual and ordinary, in the prosecution of similar white-collar crimes involving high-ranking corporate executives ... to find that a defendant was involved as a leader in community charities, civic organizations, and church efforts.” Id. at 176-77 (citations omitted).

And although we upheld the district court’s decision, we affirmed that the relevant inquiry is whether the proffered charitable activities are “exceptional enough to overcome the judgment of the Sentencing Commission that a record of good works is a discouraged basis for departure.” Id. at 177. Furthermore, the (Fred.E.) Cooper dissent was even more demanding, stating “it cannot be said that Cooper’s civic acts were in any way ‘extraordinary’ when compared to other cases involving similarly-situated defendants presenting charitable acts.” Id. at 181.

In addition, the dissent voiced its suspicion of the motives for some of the defendant’s charitable activities noting that he did not begin some of his charitable work until after the inception of the investigation that led to the conviction. Id. (“This timing, of course, calls into question the true impetus undergirding Cooper’s charity.”). Invoking the (Fred E.) Cooper dissent, the Government alleges that Tomko’s work for Habitat for Humanity was contrived as a “crass effort to improve defendant’s sentence.” Appellant’s Br. 23.

This allegation finds support in Tomko’s own concession that he began working on this community project as he was anticipating that community service might be required of him. However, the District Court also reviewed more than fifty letters of support, most of which paint a picture of Tomko as a man with great concern for his employees and his community. Some attest to truly admirable acts of kindness. However, simply “being a ‘good person,’ a quality indeed to be admired, does not qualify as extraordinary or exceptional civic or charitable conduct.” Serafini, 233 F.3d at 773.

Furthermore, the Government views these letters with jaundiced eyes, noting that many if not most of these letters were from Tomko’s own employees and that one might expect such individuals to be easily “persuaded” to pen arguably overwrought letters of support and concern. We find it unnecessary to weigh in with our own cynical speculations as to the underlying motives of the authors of these letters, as we find that Tomko’s “support in the community” and “charitable work” simply did not justify the variance that was granted in this case.

Even assuming arguendo the purest of motives for Tom-ko’s well timed interest in Habitat for Humanity, and viewing as completely altruistic the letters attesting to his beneficence, this single factor fails to justify the downward variance granted in this case. As a number of our sister circuits have recognized, “unjustified reliance upon any one [§ 3553(a)] factor is a symptom of an unreasonable sentence.” Rattoballi, 452 F.3d at 137 (2d Cir.2006); accord United States v. Hampton, 441 F.3d 284, 288-89 (4th Cir.2006); United States v. Givens, 443 F.3d 642, 646 (8th Cir.2006); United States v.

Cage, 451 F.3d 585, 594-95 (10th Cir.2006). Viewed cumulatively, the three factors considered by the District Court as mitigating factors — negligible criminal history, support and ties in the community and charitable work, employment record- — pale in comparison to the numerous § 3553(

a) factors suggesting that a term of imprisonment is warranted in cases of tax evasion as willful and brazen as Tomko’s. A sentence of mere probation, in light of these factors, is unreasonable and it was an abuse of discretion for the District Court to impose it. We do not rule that any below-Guidelines sentence would have been improper in this case, only that the District Court abused its discretion in rendering this particular below-Guidelines sentence.

The new advisory Guidelines regime leaves ample room for discretion on the part of the District Court, but “discretion, like the hole in the doughnut, does not exist except as an area left open by a surrounding belt of restriction.” Compagnie des Bauxites de Guinea v. Insurance Co. of North Am., 651 F.2d 877, 884 (3d Cir.1981) (quoting R. Dworkin, Taking Rights Seriously 31 (1977)). Furthermore, we disagree with the dissent that the hefty fine imposed on Tomko mitigates the unreasonableness of the sentence in this case.

Such a justification for leniency in sentencing only reinforces the perception that wealthy defendants can buy their way out of a prison sentence, and is inconsistent with Congress’s clear intent, as expressed in the Sentencing Reform Act and § 3553(a), to reduce unwarranted disparities in sentencing, so often based on socio-economic status. See, e.g., United States v.

Harpst, 949 F.2d 860, 863 (6th Cir.1991) (“[Permitting greater leniency in sentencing in those cases in which restitution is at issue and is a meaningful possibility (i.e., generally white-collar crimes) would, we believe, nurture the unfortunate practice of disparate sentencing based on socio-economic status, which the guidelines were intended to supplant.”); United States v.

Seacott, 15 F.3d 1380, 1389 (7th Cir.1994) (“Allowing sentencing courts to depart downward based on a defendant’s ability to make restitution would thwart the intent of the guidelines to punish financial crimes through terms of imprisonment by allowing those who could pay to escape prison. It would also create an unconstitutional system where the rich could in effect buy their way out of prison sentences.”). IV. CONCLUSION Our touchstone in reviewing sentences post-Booker is “reasonableness” and a below-Guidelines sentence will not always be an unreasonable one.

However, even below-Guidelines sentences must be logical and consistent with the sentencing goals articulated in § 3553(a). The sentence in this case was not. As such, it is unreasonable and the District Court abused its discretion in imposing it. We will vacate the judgment of the District Court and remand for resentencing in accordance with this opinion. . Tomko, Inc. is classified as a flow-through "Subchapter S Corporation" under the federal tax code.

An S Corporation's shareholders are required to include on their personal income tax returns their share of the S Corporation's separately stated items of income, deduction, loss, and credit, and their share of non-separately stated income or loss. . Upon the receipt of these invoices, Tomko, Inc. paid the subcontractors in the normal course of business and posted the expenses to the jobs that were listed on the invoices. Tomko as an individual then attempted to evade personal income taxes by omitting the company payment of his personal expenses on his Form 1040 personal income tax return. .

The Government had previously requested a four-level enhancement of the offense level under U.S.S.G. Manual § 3Bl.l(

a) for Tom-ko's alleged leadership role in the offense. It argued “what [Tomko] did was he got five or more people to essentially assist him in his tax violation, and once he does that ... they’re participants if they had the criminal intent ... we submit these people do have criminal culpability.” In response, counsel for Tomko argued the subcontractors did not necessarily “know what was going on.” The Government stated, however, that it had been provided with statements from the subcontractors admitting they knew Tomko's ultimate goal was to evade the payment of taxes.

The District Court observed that "in order to be a participant, you have to be criminally responsible ... and simply knowing a crime is taking place does not make you an aider or abettor.” The District Court then made a tentative ruling that the four-level enhancement was not applicable based upon the Government’s proffer that Tomko had coerced some of the subcontractors into participating.

As a result, the District Court reasoned, they were not "willing participants.” The Government has waived any appeal of this ruling, mentioning it only by way of footnote in its brief and expressly waiving any objection at oral argument. . August 17, 2007The resulting Guidelines level was calculated as follows: Base Offense Level for violation of 26 U.S.C. § 7201 :(16) (§§ 2T1.1 and 2T4.1 (tax loss determined to be $228,557.00)) Adjustment for Role in the Offense:

(0) Adjustment for Obstruction of Justice:

(0) Acceptance of Responsibility: (-3) (§ 3El. 1(

a) and (b)) Applicable Sentencing Guideline offense level: (13) . Under § 3553(a), the relevant factors are: (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 ... (5) any pertinent policy statement— (

A) issued by the Sentencing Commission pursuant to

section 994(a)(2) of title 28, United States Code, subject to any amendments made to such policy statement by act of Congress (regardless of whether such amendments have yet to be incorporated by the Sentencing Commission into amendments issued under

section 994(

p) of title 28); and (

B) that, except as provided in

section 3742(g) [18 USCS § 3742(g)], is in effect on the date the defendant is sentenced. (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. . Our post -Booker precedent instructs district courts to follow a three-step sentencing process:

(1) Courts must continue to calculate a defendant's Guidelines sentence precisely as they would have before Booker; (2) in doing so, they must formally rule on the motions of both parties and state on the record whether they are granting a departure and how that departure affects the Guidelines calculation, and take into account our Circuit’s pre-Booker case law, which continues to have advisory force; and (3) finally, they are required to "exercise[] [their] discretion by considering the relevant [§ 3553(a)] factors,” Cooper, 437 F.3d at 329, in setting the sentence they impose regardless of whether it varies from the sentence calculated under the Guidelines.

See generally United States v. King, 454 F.3d 187 (3d Cir.2006). We continue to review the district courts’ factual findings at steps one and two for clear error. See United States v. Grier, 475 F.3d 556, 570 (3d Cir.2007) (en banc) ("Despite the excision of subsection (

e) of 18 U.S.C. § 3742, this Court will continue to review factual findings relevant to the Guidelines for clear error and to exercise plenary review over a district court’s

interpretation of the Guidelines.”) (citations omitted). However, the ultimate inquiry for purposes of Booker is whether the resulting sentence is “reasonable.” See id. at 568. . Distinguishing between deference and abdication in reasonableness review may not always be an easy task, as evidenced by the dissent's disagreement with our application of the standard of review in this case. The dissent argues we impermissibly re-weigh the District Court’s consideration of some of the § 3553(

a) factors, and in doing so, engage in de novo review. See Dissenting Op. at 177-78 (“The District Court simply weighed the § 3553(a)(1) factors differently from how the members of this panel would have weighed them.... [I]t is not the role of this Court to review a factor de novo when analyzing whether a variance is unreasonable.”). In order to "determine whether the sentence 'is unreasonable,’ with regard to the § 3553(

a) factors,” as Booker instructs, 543 U.S. at 261, 125 S.Ct. 738, we must evaluate how a district court has weighed and balanced those § 3553(

a) factors. See Rita, 127 S.Ct. at 2473 (Stevens, J., concurring) (explaining that § 3553(

a) authorizes sentencing judges to consider the history and characteristics of the defendant and that "[a]s such, they are factors that an appellate court must consider under Booker’s abuse-of-discretion standard”). An appellate court's independent analysis of the § 3553(

a) factors and a sentence's consistency with those factors does not constitute de novo review. That analysis is part and parcel of reasonableness review. Booker, 543 U.S. at 261, 125 S.Ct. 738. (“[The § 3553(a)] factors in turn will guide appellate courts, as they have in the past, in determining whether a sentence is unreasonable.”). We cannot determine whether a district court gave “meaningful consideration” to the § 3553(

a) factors without giving meaningful consideration to those factors ourselves. As an alternative to our approach, the dissent proposes an exceedingly limited, procedurally focused review that would require us to subordinate our own analysis of a sentence’s substantive compliance with the § 3553(

a) factors to the District Court's analysis. See Dissenting Op. at 178 ("The majority would, apparently, have applied these factors differently had it been the sentencing court. I would have done so as well.”); id. at 174 (“I do not believe it presumptuous to state that each member of this panel, if sitting as a district judge, would have sentenced William Tomko to time in prison.”). Such an approach, in which appellate courts refrain from exercising any judgment regarding the appropriate substantive application of the § 3553(

a) factors, amounts to an abdication of review, not reasonableness review. The upshot of the dissent’s approach would be a system of non-review nearly indistinguishable from the toothless pre-Sentencing Reform Act application of the abuse of discretion standard, which left district court discretion nearly unbounded and appellate courts effectively out of the loop. The remedial opinion in Booker was careful to reject a return to such an application, warning that "eliminating] appellate review entirely, would cut the statute loose from its moorings in congressional purpose.” Id. at 262.

Substantive review of the sentence itself, as well as the procedure used to fashion it, is necessary if we are to fulfill the vital role Booker envisioned for appellate review. See Rita, 127 S.Ct. at 2473 (Stevens, J., concurring) (“I believe that [a] purely procedural review ... is inconsistent with our remedial opinion in Booker, which plainly contemplated that reasonableness review would contain a substantive component. After all, a district judge who gives harsh sentences to Yankees fans and lenient sentences to Red Sox fans would not be acting reasonably even if her procedural rulings were impeccable.”).

Furthermore, we do not believe our own precedent supports the procedurally oriented approach the dissent advocates. See, e.g., Grier, 475 F.3d at 569 (“The Supreme Court explained in Booker that review for 'reasonableness' is meant to assess the ultimate sentence impose[d], to determine whether the sentencing judge gave meaningful consideration to the factors of 18 U.S.C. § 3553(a).”) (emphasis added). We “assess the ultimate sentence imposed,” not only the procedure used to fashion it, as the sentence itself is a reflection of the sentencing court's application of the § 3553(

a) factors. See Rita, 127 S.Ct. at 2458 ("The federal courts of appeals review federal sentences and set aside those they find 'unreasonable.' ”) (emphasis added). If the substance of a sentence is “illogical and inconsistent” with the § 3553(

a) factors, we cannot conclude that the sentence is a reasonable one merely because the sentencing court has adhered to procedural directives. To put it figuratively, there is a recipe for reasonableness that in many, if not most cases, will lead to a palatable result, and we are not in a position to protest if the result is a little too sweet or bitter for our taste. However, when a number of key ingredients prescribed by that recipe are obviously missing from the mix, we cannot ignore the omission and feign satisfaction — we are obliged to point out there is no proof in the pudding. .

The District Court referred to the 1997 Guidelines Manual in its sentencing of Tom-ko. "While ordinarily a guideline in effect at the time of sentencing will govern, a defendant may not be prejudiced by a change in a guideline after he commits an offense. Accordingly, when the guideline in effect at the time of the offense is more favorable to the defendant, it must be applied.” United States v. McAllister, 927 F.2d 136, 138 n. 2 (3d Cir.1991). Accordingly, all references in this opinion are to the 1997 edition of the Guidelines Manual. .

The District Court did consider the need to afford adequate deterrence to the defendant's criminal conduct, i.e., "specific deterrence.” However, neither the record nor the sentence reflects meaningful consideration of the equally important need to deter others, i.e., "general deterrence.” Even if the Guidelines did not so clearly articulate this need to provide for general deterrence in tax evasion cases, our Court has recognized that § 3553(

a) requires the sentence imposed to be "minimally sufficient to satisfy concerns of retribution, general detenence, specific deterrence, and rehabilitation.” United States v. Serafini, 233 F.3d 758, 776 (3d Cir.2000) (citation omitted) (emphasis added). We do not suggest that more explanation by the District Court solely on the subject of deterrence would have satisfied us that the sentence in this case is reasonable. . The disputed portion of the record included evidence that Tomko’s fraudulent scheme extended to the construction of his Maryland vacation home.

The Government presented evidence that Tomko on more than one occasion told individuals that this vacation home was "a gift from Uncle Sam.” The Government argues that this portion of the record is relevant insofar as it provides further evidence of Tomko’s past history of and propensity for tax evasion. In addition, the Government argues that this evidence underscores the need for a more rigorous sentence to provide for adequate deterrence. However, the Government was unable to provide reliable figures to account for the significance of this alleged fraud to the computed tax loss to the Government.

Because this disputed portion of the record apparently did not factor into the District Court’s judgment of sentence, it does not factor into our analysis. . The Government cites an unpublished opinion of the Court as authority for this proposition. We must restate that we continue to decline to cite to our not precedential opinions as authority.

As we have emphasized so often in the past, such opinions are not regarded as precedents that bind the Court because they do not circulate to the full Court before filing. .Our Court distinguishes between traditional departures based on a specific Guidelines provision and sentencing "variances” from the Guidelines that are based on Booker and the § 3553(

a) factors. United States v. Vampire Nation, 451 F.3d 189, 195 n. 2 (3d Cir.2006). The District Court in this case did not grant Tomko a downward departure based on his charitable acts but rather took them into consideration as a mitigating factor in the course of its Cooper Step 3 analysis of § 3553(a). We treat the Court’s failure to rule on a departure motion as a de facto denial. United States v. Colon, 474 F.3d 95, 99 n. 8 (3d Cir. Jan.29, 2007). . The remedial portion of the opinion in Booker emphasizes that the primary objective of Congress in sentencing reform was to reduce sentence disparity.

See, e.g., 543 U.S. at 255, 125 S.Ct. 738 ("Congress enacted the sentencing statutes in major part to achieve greater uniformity in sentencing .... ”); id. at 264, 125 S.Ct. 738 ("avoiding unwarranted sentencing disparities” is part of "Congress’ initial and basic sentencing intent”). Booker also instructs that "[t]he courts of appeals review sentencing decisions for unreasonableness,” and in so doing, "move sentencing in Congress' preferred direction, helping to avoid excessive sentencing disparities while maintaining flexibility sufficient to individualize sentences where necessary." Id. .

We agree with the dissent that § 3553(a)(1) specifically instructs sentencing courts to consider “the nature and circumstances of the offense and the history and characteristics of the defendant,” and does not state that this factor must be excluded if a district court gives a defendant a sentence with a significant variance. However, we disagree with the dissent that we are without authority to review the extent to which the District Court's consideration of the history and characteristics of a defendant is consistent with the overall sentencing goals and directives of § 3553(a).

See Rita, 127 S.Ct. at 2473 (Stevens, J., concurring) (explaining that because history and characteristics of the defendant are factors the district court is authorized to consider, they "are factors that an appellate court must consider under Booker’s abuse-of-discretion standard”). . The Government in Wallace had argued that "the district judge was mistaken to rely on Wallace’s remorse and lack of criminal history, because the guidelines already accounted for both through a downward adjustment for acceptance of responsibility and the Category I criminal history.” 458 F.3d 606, 613. .

Although not so stated by the District Court, a defendant’s charitable work and support in the community, like record of employment, may be considered under the rubric of § 3553(a)(1), which requires that a sentence imposed reflect "the history and characteristics of the defendant.”