UNITED STATES of America, Appellant v. William TOMKO, 562 F.3d 558

OPINION SMITH, Circuit Judge, with whom McKEE, BARRY, AMBRO, FUENTES, CHAGARES, JORDAN, and HARDIMAN, Circuit Judges, join. The Government appeals the reasonableness of William Tomko’s below-Guidelines sentence of probation, community service, restitution, and fine for his tax evasion conviction. If any one of a significant number of the members of this Court — including some in today’s majority- — had been sitting as the District Judge, Tomko would have been sentenced to some time in prison.

But “[t]he fact that the appellate court might reasonably have concluded that a different sentence was appropriate is insufficient to justify reversal of the district court.” Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007). Gall reminds us that “[t]he sentencing judge is in a superior position to find facts and judge their import under § 3553(

a) in the individual case. The judge sees and hears the evidence, makes credibility determinations, has full knowledge of the facts and gains insights not conveyed by the record.” Id. (internal quotations and citations omitted); see also United States v. Dragon, 471 F.3d 501, 506 (3d Cir.2006) (we afford “deference to the District Court because it is in the best position to determine the appropriate sentence in light of the particular circumstances of the case.” (internal quotations and citation omitted)).

This reality is why, post-Booker, “the familial abuse-of-discretion standard of review now applies to appellate review of sentencing decisions.” Gall, 128 S.Ct. at 594. Where, as here, a district court decides to vary from the Guidelines’ recommendations, we “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. at 597. These principles require us to affirm Tomko’s sentence. I. On May 11, 2004, Tomko pleaded guilty to a one-count information charging him with tax evasion in violation of 26 U.S.C. § 7201. Tomko was the owner and Chief Executive Officer of W.G. Tomko & Son, Inc. (“Tomko, Inc.”), a plumbing contractor.

From 1995 to 1998, Tomko directed numerous subcontractors, who were building his multimillion dollar home in Washington County, Pennsylvania, to falsify information on billing invoices so that the invoices would show work being done at one of Tomko, Inc.’s many job sites instead of at Tomko’s home. As a result, Tomko, Inc. paid for the construction of Tomko’s home and illegally deducted those payments as business expenses. Tomko also did not properly report those payments as income on his personal tax return.

All told, Tomko’s tax evasion scheme involved twelve different subcontractors and his general contractor, and resulted in a tax deficiency of $228,557. The United States District Court for the Western District of Pennsylvania conducted Tomko’s sentencing hearing on September 30, 2005. Using the 1997 edition of the United States Sentencing Guidelines Manual, the District Court calculated Tomko’s total offense level to be thirteen and his criminal history category to be I.

Based on these calculations, the Guidelines recommended a range of imprisonment between twelve and eighteen months and a fine between $3,000 and $30,000. Tomko, however, proposed that in light of the then-recent Hurricane Katrina catastrophe and his construction expertise, the Court should sentence him to probation and home detention, and require him to work for Habitat for Humanity.

The Executive Director for Habitat for Humanity’s Pittsburgh affiliate testified that the organization would appreciate Tomko’s help in its efforts to rebuild the Gulf Coast and that Tomko had performed well in past projects, including providing onsite assistance and advice. Tomko also proffered testimony from Tomko, Inc.’s Chief Financial Officer that the company was in danger of losing its line of credit if he were imprisoned. If this happened, Tomko, Inc. would be in dire straits financially and the jobs of its 300-plus employees would be threatened. Finally, Tomko submitted a Motion for Downward Departure.

The motion argued that Tomko should be sentenced below his Guidelines range because 1) his incarceration could cause Tomko, Inc.’s innocent employees to lose their jobs; 2) he has performed exceptional charitable acts and good works; 3) he has demonstrated an extraordinary degree of acceptance of responsibility; and 4) a combination of these three factors. As exhibits, Tomko attached over fifty letters from family, Mends, community leaders, and others attesting to his pre-indictment charitable activities and other good works.

After hearing these arguments and stating that it had reviewed all the motions and briefs that the parties submitted, the District Court stated its Guidelines calculations for the record and considered the sentencing factors listed in 18 U.S.C. § 3553(a): I am to consider first the nature and circumstances of the offense, which are as follows. The offense was not violent in nature. The offense was not ongoing in nature. The offense was not part of a larger pattern of criminal activity. There are also no identifiable victims of the offense.

I am also to consider the history and characteristics of the Defendant. [The District Court here discussed Tomko’s childhood, family, education, drinking problem, and prior criminal conviction for operating a boat while intoxicated.] I am also going to consider the need for the sentence imposed to reflect the seriousness of the offense, promote respect for the rule of law, and provide just punishment for the offense. Here, the Defendant has pled guilty to tax evasion, which is a serious offense. I am to afford adequate deterrence to the Defendant’s criminal conduct.

Here, the Defendant has one prior criminal incident which is alcohol-related, but has otherwise led a crime-free life. I am to protect the public from further crimes of this Defendant. Here, the Defendant has not been involved in other crimes even though this is a serious offense here. The likelihood of recidivism in this case I find is very little. And to provide Defendant with needed educational/vocational training, medical care, or other correctional treatment in the most effective manner possible.

I am also to consider the kind of sentences available, including federal prison, house arrest, probation, and fines, which I am going to do. I am to consider the need [to avoid] unwarranted sentence disparities among Defendants with similar records who have been found guilty of similar conduct. These considerations generally weigh in favor of sentencing a Defendant within the guideline range.

However, this need to avoid unwarranted sentence disparities among Defendants with similar records also gives me enough leniency, though, 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[is] warranted.

In response, the Government insisted that the Court impose a sentence that included a term of imprisonment. The Government did not challenge Tomko’s factual assertions or submissions. Instead, it juxtaposed his criminal conduct with the patriotism of American soldiers fighting wars abroad and argued that greed, not community service and philanthropy, defined Tomko’s character. It focused on the fact that Tomko coerced his subcontractors to file false documentation, and highlighted the “gilded cage” nature of a sentence of home detention.

The Government claimed that it would be “absurd” to sentence Tomko to live in the same multimillion dollar mansion that the illegally obtained tax monies helped fund. According to the Government, the Court’s failure to incarcerate Tomko would send a message that a rich defendant can buy his way out of prison, and would compromise the general deterrent effect that tax laws have on potential tax cheats. Despite the Government’s arguments, the District Court did not sentence Tomko to a term of imprisonment.

Instead, the Court sentenced Tomko to three years of probation (the first of which would be served as home detention), participation in an alcohol treatment program, 250 hours of community service, full restitution, and the statutory maximum fine of $250,000. The Court explained its sentence with the following colloquy: The reason for the sentence is as follows: Defendant stands before us for sentencing after pleading guilty to tax evasion. A review of Defendant’s financial condition paints a picture of a very wealthy man who had the means and 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 the extensive charitable work he has done. I have also — therefore, I have sentenced him to the period of probation, which I recognize is below the guideline range. I also recognize that the fine is above 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. The Government filed a timely appeal. II. A.

Before the implementation of a Guidelines-based sentencing system in 1984, “[s]tatutes specified the penalties for crimes but nearly always gave the sentencing judge wide discretion to decide whether the offender should be incarcerated and for how long, whether he should be fined and how much, and whether some lesser restraint, such as probation, should be imposed instead of imprisonment or fine.” Mistretta v. United States, 488 U.S. 361, 363, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989).

Reviewing courts, in turn, recognized “that the sentencing judge ‘sees more and senses more’ than the appellate court; thus, the judge enjoyed the ‘superiority of his nether position,’ for that court’s determination as to what sentence was appropriate met with virtually unconditional deference on appeal.” Id. at 364, 109 S.Ct. 647 (quoting Maurice Rosenberg, Judicial Discretion of the Trial Court, Viewed From Above, 22 Syracuse L.Rev. 635, 663 (1971)).

According to the Supreme Court, appellate review “beg[an] with the general proposition that once it is determined that a sentence is within the limitations set forth in the statute under which it is imposed, appellate review is at an end.” Dorszynski v. United States, 418 U.S. 424, 431, 94 S.Ct. 3042, 41 L.Ed.2d 855 (1974). Concerns over sentencing disparities and the continued viability of rehabilitation as a penological objective dogged this sentencing system. Mistretta, 488 U.S. at 365, 109 S.Ct. 647.

As a result, in 1984, Congress passed the Sentencing Reform Act which, among other things, established mandatory sentencing guidelines. Id. at 365-67, 109 S.Ct. 647. This Act, however, “did not alter a court of appeals’ traditional deference to a district court’s exercise of its sentencing discretion.” Williams v. United States, 503 U.S. 193, 205, 112 S.Ct. 1112, 117 L.Ed.2d 341 (1992).

As the Supreme Court explained in Williams, “[t]he development of the guideline sentencing regime has not changed our view that, except to the extent specifically directed by statute, ‘it is not the role of an appellate court to substitute its judgment for that of the sentencing court as to the appropriateness of a particular sentence.’ ” Id. (quoting Solem v. Helm, 463 U.S. 277, 290 n. 16, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983)). In United States v.

Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the Supreme Court concluded that the Sentencing Guidelines could only be advisory, id. at 245, 125 S.Ct. 738, and instructed courts of appeals to review the sentencing court’s “broad discretion in imposing a sentence within a statutory range,” id. at 233, 125 S.Ct. 738, for “unreasonableness,” id. at 260-61, 125 S.Ct. 738. Subsequently, Gall made it plain that we assess unreasonableness under the abuse-of-discretion standard. 128 S.Ct. at 591. B. As the Court mentioned in Gall, the abuse-of-discretion standard is “familiar” to us. See id. at 594.

In the evidentiary context, the “[ajdmission of evidence is an abuse of discretion if the district court’s action was arbitrary, fanciful or clearly unreasonable,” and “[w]e will not disturb a trial court’s exercise of discretion unless no reasonable person would adopt the district court’s view.” United States v. Frazier, 469 F.3d 85, 87-88 (3d Cir.2006) (internal quotations and citations omitted).

We also review a district court’s decisions concerning jury instructions for an abuse of discretion, and “will order a new trial on account of a district court’s refusal to give a proposed jury instruction only when the requested instruction was correct, not substantially covered by the instructions given, and was so consequential that the refusal to give the instruction was prejudicial to the defendant.” United States v. Hoffecker, 530 F.3d 137, 167 (3d Cir.2008) (internal quotations and citations omitted).

Attorney’s fee awards are likewise reviewed for an abuse of discretion, “which can occur if the judge fails to apply the proper legal standard or to follow proper procedures in making the determination, or bases an award upon findings of fact that are clearly erroneous.” In re Rite Aid Corp. Sec. Litig., 396 F.3d 294, 299 (3d Cir.2005) (internal quotations and citations omitted). Two basic principles underlie the application of the abuse-of-discretion standard.

First, “deferential review is used when the matter under review was decided by someone who is thought to have a better vantage point than we on the Court of Appeals to assess the matter.” United States v. Mitchell, 365 F.3d 215, 234 (3d Cir.2004). Accordingly, the Supreme Court has applied the abuse-of-discretion standard where it “noted that deference was owed to the ‘judicial actor ... better positioned than another to decide the issue in question.’ ” Koon v. United States, 518 U.S. 81, 98, 99, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996) (quoting Pierce v.

Undemood, 487 U.S. 552, 559-60, 108 S.Ct. 2541, 101 L.Ed.2d 490 (1988)); see also Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 401-05, 110 S.Ct. 2447, 110 L.Ed.2d 359 (1990) (reviewing Rule 11 sanctions for an abuse of discretion because “the district court is better situated than the court of appeals to marshal the pertinent facts and apply the fact-dependent legal standard mandated by Rule 11”); Pierce, 487 U.S. at 559-63, 108 S.Ct. 2541 (holding that attorney’s fee awards under the Equal Access to Justice Act should be reviewed for an abuse of discretion).

As one leading commentator has put it, “[i]n the dialogue between the appellate judges and the trial judge, the former often would seem to be saying: ‘You were there. We do not think we would have done what you did, but we were not present and we may be unaware of significant matters, for the record does not adequately convey to us all that went on at the trial. Therefore, we defer to you.’ ” Rosenberg, supra, at 663. Second, courts of appeals apply the abuse-of-discretion standard to fact-bound issues that are ill-suited for appellate rule-making.

As the Supreme Court explained in Pierce: One of the ‘good’ reasons for conferring discretion on the trial judge is the sheer impracticability of formulating a rule of decision for the matter in issue.

Many questions that arise in litigation are not amenable to regulation by rule because they involve multifarious, fleeting, special, narrow facts that utterly resist generalization — -at least, for the time being. 487 U.S. at 561-62, 108 S.Ct. 2541 (quoting Rosenberg, supra, at 662); see also Cooter & Gell, 496 U.S. at 405, 110 S.Ct. 2447 (“ ‘Fact-bound resolutions cannot be made uniform through appellate review, de novo or otherwise.’ ” (quoting Mars Steel Corp. v. Cont’l Bank N.A., 880 F.2d 928, 936 (7th Cir.1989))).

Pre-Booker, these two basic principles motivated the Supreme Court to hold that the abuse-of-discretion standard should be used to evaluate sentencing departures under the mandatory Guidelines system. See Koon, 518 U.S. at 98-100, 116 S.Ct. 2035. In Koon, the Supreme Court noted that “[a] district court’s decision to depart from the [mandatory] Guidelines ... will in most cases be due substantial deference, for it embodies the traditional exercise of discretion by a sentencing court.” Id. at 98, 116 S.Ct. 2035.

The Court pointed out that determining whether a departure was permitted required “the district court [to] make a refined assessment of the many facts bearing on the outcome, informed by its vantage point and day-to-day experience in criminal sentencing.” Id. Additionally, “a district court’s departure decision involves ‘the consideration of unique factors that are little susceptible ... of useful generalization,’ and as a consequence, de novo review is ‘unlikely to establish clear guidelines for lower courts.’ ” Id. at 99, 116 S.Ct. 2035 (quoting Cooter & Gell, 496 U.S. at 404, 405, 110 S.Ct. 2447).

As a result, the Court concluded that “[t]he appellate court should not review the departure decision de novo, but instead should ask whether the sentencing court abused its discretion.” Id. at 91, 116 S.Ct. 2035. Post-Booker, the sentencing court’s superior vantage point has been the oft-cited reason for applying the abuse-of-discretion standard to sentencing review. In Gall, the Court emphasized that “[t]he sentencing judge is in a superior position to find facts and judge their import under § 3553(

a) in the individual case. The judge sees and hears the evidence, makes credibility determinations, has full knowledge of the facts and gains insights not conveyed by the record.” 128 S.Ct. at 597 (internal quotations and citations omitted). This means that “[t]he sentencing judge has access to, and greater familiarity with, the individual case and the individual defendant before him than the [Sentencing] Commission or the appeals court.” Id. at 597-98 (quoting Rita v. United States, 551 U.S. 338, 127 S.Ct. 2456, 2469, 168 L.Ed.2d 203 (2007)).

Additionally, “district courts have an institutional advantage over appellate courts in making these sorts of determinations, especially as they see so many more Guidelines sentences than appellate courts do.” Id. at 598 (internal quotations and citation omitted). For example, “[district judges sentence, on average, 117 defendants every year ... [whereas] [o]nly a relatively small fraction of these defendants appeal their sentence on reasonableness grounds.” Id. at 598 n. 7 (citations omitted).

Accordingly, “[o]ur responsibility on appellate review of a criminal sentence is limited yet important: we are to ensure that a substantively reasonable sentence has been imposed in a proeedurally fair way.” United States v. Levinson, 543 F.3d 190, 195 (3d Cir.2008). c. In the wake of Booker, it is essential that district courts make an “individualized assessment based on the facts presented.” Gall, 128 S.Ct. at 597.

In doing so, it is equally important that district courts provide courts of appeals with an explanation “sufficient for us to see that the particular circumstances of the case have been given meaningful consideration within the parameters of § 3553(a).” Levinson, 543 F.3d at 196. We also must have “sufficient justifications on the record to support the sentencing conclusions.” Id. Although we can articulate no uniform threshold for sufficiency because of the fact-bound nature of each sentencing decision, we certainly always demand more than a rote recitation of the § 3553(

a) factors if “at sentencing either defendant or the prosecution properly raises ‘a ground of recognized legal merit (provided it has a factual basis)’ and the court fails to address it.” United States v. Cooper, 437 F.3d 324, 329 (3d Cir.2006) (quoting United States v. Cunningham, 429 F.3d 673, 679 (7th Cir.2005)). Only then will we have enough to conduct our “limited yet important” review. Levinson, 543 F.3d at 195. District courts must provide their explanations and justifications while going through three steps at sentencing.

As we outlined in Levinson: A district court must begin the process by first calculating the applicable Guidelines range. After that initial calculation, the court must then rule on any motions for departure and, if a motion is granted, state how the departure affects the Guidelines calculation. Finally, after allowing the parties an opportunity for argument, the court must consider all of the § 3553(

a) factors and determine the appropriate sentence to impose, which may vary from the sentencing range called for by the Guidelines. Id. at 194-95. “Thus, the sentencing court subjects the defendant’s sentence to the thorough adversarial testing contemplated by federal sentencing procedure.” Rita, 127 S.Ct. at 2465. Our appellate review proceeds in two stages. It begins by “ensuring] that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(

a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence — including an explanation for any deviation from the Guidelines range.” Gall, 128 S.Ct. at 597. We do not presume that a district court considered the factors solely because the sentence falls within the Guidelines range. Cooper, 437 F.3d at 329-30. If a district court’s procedure passes muster, “we then, at stage two, consider its substantive reasonableness.” Levinson, 543 F.3d at 195.

Our substantive review requires us not to focus on one or two factors, but on the totality of the circumstances. Gall, 128 S.Ct. at 597; United States v. Howe, 543 F.3d 128, 137 (3d Cir.2008). Indeed, we cannot presume that a sentence is unreasonable simply because it falls outside the advisory Guidelines range. Gall, 128 S.Ct. at 597. At both stages of our review, the party challenging the sentence has the burden of demonstrating unreasonableness. Cooper, 437 F.3d at 332. The abuse-of-discretion standard applies to both our procedural and substantive reasonableness inquiries.

Gall, 128 S.Ct. at 597; United States v. Wise, 515 F.3d 207, 217-18 (3d Cir.2008). For example, an abuse of discretion has occurred if a district court based its decision on a clearly erroneous factual conclusion or an erroneous legal conclusion. Wise, 515 F.3d at 217. This also means that, absent any significant procedural error, we must “give due deference to the district court’s determination that the § 3553(

a) factors, on a whole,” justify the sentence. Gall, 128 S.Ct. at 597; see also United States v. Bungar, 478 F.3d 540, 543 (3d Cir.2007) (stating that, as an appellate court, we are “highly deferential” to the sentencing court’s application of the § 3553(

a) factors). In other words, if the district court’s sentence is procedurally sound, we will affirm it unless no reasonable sentencing court would have imposed the same sentence on that particular defendant for the reasons the district court provided. Ultimately, “[t]he touchstone of ‘reasonableness’ is whether the record as a whole reflects rational and meaningful consideration of the factors enumerated in 18 U.S.C. § 3553(a).” United States v. Grier, 475 F.3d 556, 571 (3d Cir.2007) (en banc); see also Cooper, 437 F.3d at 330 (“[Wjhat 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).” (internal quotations and citation omitted)). “An estimation of the outer bounds of what is ‘reasonable’ under a given set of circumstances may not always be beyond debate, but the abuse-of-discretion standard by which that estimation must be judged limits the debate and gives district courts broad latitude in sentencing.” Levinson, 543 F.3d at 195. III. The Government makes only one claim of procedural error: it argues that the District Court failed to meaningfully consider general deterrence. Based on our review of the record, we cannot agree. A sentencing court does not have to “discuss and make findings as to each of the § 3553(

a) factors if the record makes clear the court took the factors into account in sentencing.” Cooper, 437 F.3d at 329 (emphasis added); see also Rita, 127 S.Ct. at 2469 (noting that “context and the record make clear that this, or similar, reasoning, underlies the judge’s conclusion”). Here, “[t]he record makes clear that the sentencing judge listened to each argument,” Rita, 127 S.Ct. at 2469, and rejected the ones the Government made concerning general deterrence.

At the sentencing proceeding, the Government exhaustively asserted, directly in front of the District Court, that a probationary sentence would adversely affect general deterrence: A lengthy term of incarceration is also important for something you didn’t mention in what you just went through, and that’s third party deterrence, particularly in this industry. In this case, if this case is any indication, this contracting industry is riddled, riddled with tax fraud. A sentence of probation tells this industry: 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. You won’t have to go to jail. Our tax system, Your Honor, is dependent on the honesty of our citizenry, and a lengthy term of incarceration for this tax cheat validates that system. A sentence of probation invalidates that system. We need to [deter] this type of crime, Your Honor; and the threat of jail is real for these white collar criminals that commit tax fraud. What we need to do is make good on that threat. That threat, if it simply isn’t followed through on, is just a threat. It’s not real deterrence.

Real deterrence is jail. That’s what makes people like Mr. Tomko think before they sign that bogus tax return, before they cheat on their taxes. They see it in the paper: Tax cheats go to jail. Maybe they’ll think next time they sign that tax return. Almost immediately after the Government made these statements, the District Court sentenced Tomko.

The District Judge noted that he viewed Tomko’s sentence as “address[ing] the sentencing goals of punishment, deterrence and rehabilitation.” (Emphasis added.) This demonstrates that the District Court heard the Government’s impassioned plea, considered general deterrence, and handed down Tomko’s sentence. Therefore, we conclude that the District Court did not commit any procedural error at Tomko’s sentencing. See Rita, 127 S.Ct. at 2468 (“In our view, given the straightforward, conceptually simple arguments before the judge, the judge’s statement of reasons here, though brief, was legally sufficient.”). IV.

The crux of the Government’s appeal is its claim that Tomko’s sentence is substantively unreasonable. At oral argument, the Government reaffirmed that it would not be satisfied even if the District Court corrected the alleged procedural error on remand, but imposed the same sentence.

In the Government’s view, Tomko’s sentence is substantively unreasonable because 1) detention in the house that Tomko partially funded with the illegal tax proceeds is plainly unreasonable, 2) this is a mine-run tax evasion case undeserving of such a lenient sentence, and 3) the statutory maximum fíne cannot cure the claimed substantive deficiencies. We reject the Government’s first and third arguments with limited discussion. Concerning the first, the Government has narrowed its objections to too fíne a point by focusing its objections solely on the location of Tomko’s home detention.

The Government admitted at oral argument that had the District Court sentenced Tomko to serve his detention in a different house — for example, as the Government suggested, “one of those Habitat for Humanity buildings that he was building in New Orleans could do,” (Tr. of Oral Argument 23) — it may not have appealed. Although we agree with the Government that the sort of “gilded cage” confinement imposed here has a certain unseemliness to it, we do not believe that this condition of sentence, by itself, constitutes an abuse of discretion.

Whether detention in a particular home is appropriate punishment is precisely the type of fact-bound inquiry that a sentencing court is better suited to make. Even the Guidelines leave this determination to the sound discretion of the sentencing court. See U.S. Sentencing Guidelines Manual § 5F1.2 cmt. 3 (1997) (“The defendant’s place of residence, for purposes of home detention, need not be the place where the defendant previously resided. It may be any place of residence, so long as the owner of the residence ... agrees to any conditions that may be imposed by the court .... ” (emphasis added)).

We are in no position to second-guess that decision here. The Government’s third claim rests on a perceived link between the District Court’s variance to a probationary sentence and its imposition of the statutory maximum fine. According to the Government, the District Court permitted Tomko to buy his way out of prison. This is not simply an overly-pejorative characterization of the sentence; it is a misreading of the record that is unfair to the District Court. Indeed, the record exhibits no connection between the fine imposed and the failure to incarcerate.

To the contrary, the District Court explicitly stated that the two served unrelated purposes. On the one hand, probation was warranted because of Tomko’s negligible criminal history, his record of employment, his community ties, and his extensive charitable works. On the other hand, the statutory maximum fine was necessary to effect deterrence in light of Tomko’s wealth. We cannot conclude that the District Court abused its discretion where there exists nothing more than an implication of impropriety arising out of simple coincidence.

The Government’s final argument — that this is an overly lenient sentence in a mine-run case — deserves more attention. At the outset, we address the Government’s characterization of this case as a “mine-run” case. To the extent that the typicality or uniqueness of a case is relevant, the Supreme Court has made clear that it does not alter our deferential standard of review when evaluating a district court’s sentencing determination.

To that end, the Court observed in Gall that: [i]t has been uniform and constant in the federal judicial tradition for the sentencing judge to consider every convicted person as an individual and every case as a unique study in the human failings that sometimes mitigate, sometimes magnify, the crime and punishment to ensue. The uniqueness of the individual case, however, does not change the deferential abuse-of-discretion standard of review that applies to all sentencing decisions. 128 S.Ct. at 598 (internal quotation omitted).

Such deference acknowledges the district court’s “institutional advantage over appellate courts,” id. at 598, or what the Court in Gall labeled the “[practical considerations,” id. at 597. Accordingly, we must apply the abuse-of-discretion standard uniformly, regardless of whether a particular case appears to be a “mine-run” case on appeal. The Government points out that “closer review may be in order when the sentencing judge varies from the Guidelines based solely on the judge’s view that the Guidelines range fails to properly reflect § 3553(

a) considerations even in a mine-run case.” Kimbrough v. United States, 552 U.S. 85, 128 S.Ct. 558, 575, 169 L.Ed.2d 481 (2007) (internal quotations and citation omitted). This case, however, is different from those like Kimbrough, which involved the “district court’s authority to vary from the ... Guidelines based on policy disagreement with them, and not simply based on an individualized determination that they yield an excessive sentence in a particular case.” Spears v. United States, — U.S. -, 129 S.Ct. 840, 843, 172 L.Ed.2d 596 (2009) (per curiam).

Here, the District Court did not vary from the Guidelines range “solely” based on a disagreement with its ability to properly reflect § 3553(

a) considerations. Kimbrough, 128 S.Ct. at 575. Instead, the Court made an individualized determination that the Guidelines range recommended an excessive sentence in this instance. As a result, we are not reviewing “an ‘inside the heartland’ departure (which is necessarily based on a policy disagreement with the Guidelines and necessarily disagrees on a ‘categorical basis’) [that] may be entitled to less respect” in this case. Spears, 129 S.Ct. at 843. In essence, the Government is asking this Court to apply the already-rejected “proportionality test” by a different name.

The Government’s .appeal boils down to a claim that Tomko’s criminal history, employment record, community ties, and charitable works do not differentiate him enough from the “mine-run” tax-. evasion case to justify his below-Guidelines sentence. Similarly, a “proportionality test” rests on “the proposition that the strength of the justification needed to sustain an outside-Guidelines sentence varies in proportion to the degree of the variance.” Rita, 127 S.Ct. at 2467.

As applied by some courts of appeals, this meant that “a sentence that constitute^] a substantial variance from the Guidelines [had to] be justified by extraordinary circumstances.” Gall, 128 S.Ct. at 591. In Gall, the Supreme Court explicitly barred the application of such an approach because it necessarily applies a “heightened standard of review to sentences outside the Guidelines range.” Id. at 596. That, of course, is “inconsistent with the rule that the abuse-of-discretion standard of review applies to appellate review of all sentencing decisions — whether inside or outside the Guidelines range.” Id.

To be sure, “we may look for a more complete explanation to support a sentence that varies from the Guidelines than we will look for when reviewing a sentence that falls within a properly calculated Guidelines range.” Levinson, 543 F.3d at 197. We may also properly consider “the extent of any variance from the Guidelines range.” Gall, 128 S.Ct. at 597. As the Supreme Court has explained, “it [is] uncontroversial that a major departure should be supported by a more significant justification than a minor one.” Id.

This does not mean, however, that we elevate our review of any variance and its accompanying explanation or justification beyond the abuse-of-discretion standard. The Supreme Court has unequivocally stated that “courts of appeals must review all sentences — whether inside, just outside, or significantly outside • the Guidelines range — under a deferential abuse-of-discretion standard.” Id. at 591. We must remain faithful to that clear instruction. Based on our review of the record, we conclude that the District Court did not abuse its discretion here.

At Tomko’s sentencing hearing, the District Court explicitly examined subsections (a)(1), (a)(2)(A), (a)(2)(B), (a)(2)(C), (a)(2)(D), (a)(3), (a)(4), and (a)(6) of § 3553. The District Court also ordered full restitution. See 18 U.S.C. § 3553(a)(7). After hearing argument from the Government concerning the need for a term of imprisonment, the Court reiterated its reasons for imposing a sentence without one. The District Court gave specific reasons for why Tomko’s sentence varies from the Guidelines range.

This variance took into account his negligible criminal history, his employment record, his community ties, and his extensive charitable works as reasons for not incarcerating Tomko, while also factoring in his substantial wealth as a reason for imposing a fine far above the Guidelines range. Indeed, the District Court provided more than just a boilerplate recitation of the § 3553(

a) factors; it detailed, step-by-step, its individualized assessment of the sentence that it believed appropriate in this particular case. The District Court’s reasons are also “logical and consistent with the factors set forth in

section 3553(a).” Cooper, 437 F.3d at 330 (internal quotations and citation omitted). They are fully supported by the record. The Government does not dispute that Tomko had a negligible criminal history and that, because of his prominence in the company, his incarceration would threaten the jobs of Tomko, Inc.’s over-300 employees.

As for Tomko’s charitable works, even the Government conceded at oral argument that “[t]he district court was entitled to give it whatever weight the district court wanted.” (Tr. of Oral Argument 17.) Several dozen letters written on Tomko’s behalf prior to his sentencing also demonstrate Tomko’s community ties and extensive charitable works. These letters indicate that Tomko performed pre-indictment charitable acts that involved not only money, but also his personal time. For several years, Tomko participated in a holiday gift drive in Finleyville, Pennsylvania.

He provided Christmas gifts for thirty needy families, provided gloves and scarves to inner city children at a daycare center, and also helped other families in Marianna, Pennsylvania during the holiday season. One letter stated that Tomko performed all of this work anonymously. On a more individual basis, another letter noted how Tomko “helped a woman in the South Park area that had recently lost her husband and was left with four small children to raise by her[self].” He also went out of his way to accommodate his employees who needed extra time off for personal reasons.

Tomko participated in other acts of charity for those in need. A pastor in the community noted Tomko’s pre-indictment proclivity for aiding the poor, and stated that “[b]y requiring him to perform ... community service, in lieu of incarceration, not only will you help the impoverished lives of the poor, but you will also transform the life of Bill Tomko.” Additionally, at Tomko’s sentencing proceeding, the Executive Director of Habitat for Humanity’s Pittsburgh affiliate testified on Tomko’s behalf.

The Executive Director stated that the Pittsburgh affiliate had been in danger of being closed down by the national Board of Directors because of its precarious financial situation. The Executive Director testified that Tomko became personally involved in the construction and rehabilitation of several houses in the Pittsburgh area. Again, Tomko devoted not only a portion of his wealth, but also his personal time. The Executive Director stated that, for one house that had water runoff problems, “Mr.

Tomko came and not only visited with the homeowner, inspected the basement to see what was the matter with the outside of the house, but also worked with the city to determine how best to redirect the water away from the yards. He put in the grading, he completed the front sidewalk, the back driveway, and put in a curb for the city.” The Executive Director gave other examples of Tomko’s providing his construction expertise to aid the Pittsburgh affiliate.

The Executive Director then testified as to how Tomko could benefit Habitat for Humanity’s efforts to build houses for poor families whose residences were damaged or destroyed by Hurricane Katrina. The Executive Director of the New Orleans affiliate confirmed that Tomko would be useful in these efforts.

The Pittsburgh Executive Director concluded her direct testimony by reading a portion of a letter she wrote to the District Court, which stated that “there is no one like Bill Tomko who provides timely, unselfish, and meaningful contributions to Pittsburgh Habitat for Humanity’s construction operations.” Pre-Booker, we approved of a similar sentencing departure on similar facts for similar reasons despite applying a higher standard of review. In United States v. Fred E.

Cooper, 394 F.3d 172 (3d Cir.2005), this Court held that a four-level downward departure was warranted because of the defendant’s good works that were of a personal nature. Id. at 176-78. This departure resulted in three years probation for a defendant who pleaded guilty to one count of securities fraud and one count of subscribing to a false tax return, and had a Guidelines range of fifteen to twenty-one months. Id. at 174-75. Notably, this Court applied the less-deferential de novo standard of review that Congress required after 2003. As a result, Fred E. Cooper weighs in favor of affirming Tomko’s sentence.

See United States v. Jackson, 467 F.3d 834, 839 (3d Cir.2006) (instructing that “[p]re-Booker law regarding Guidelines departures, therefore, necessarily informs the sentencing process — for district courts and for us”). It bears mentioning that the District Court’s variance here was not substantial. The difference between Tomko’s actual sentence and the lower end of his Guidelines range is twelve months. Calling it a 100-percent variance is misleading.

As Gall points out, “deviations from the Guidelines range will always appear more extreme — in percentage terms — when the range itself is low, and a sentence of probation will always be a 100% departure .... ” 128 S.Ct. at 595. Additionally, “quantifying the variance as a certain percentage of the maximum, minimum, or median prison sentence recommended by the Guidelines gives no weight to the ‘substantial restriction of freedom’ involved in a term of supervised release or probation.” Id. (citation omitted). We cannot say that, in absolute terms, the variance here was so large that it was per se unreasonable.

In Gall, the Supreme Court affirmed a district court’s probationary sentence where the advisory Guidelines range was thirty to thirty-seven months of imprisonment. 128 S.Ct. at 593. Similarly, post-Gall, a number of courts of appeals, including our own, have affirmed sentences that involved greater variances or departures than the one here. See, e.g., Howe, 543 F.3d at 130 (affirming a probationary sentence where the Guidelines range was eighteen to twenty-four months of imprisonment); see also United States v.

Gardellini, 545 F.3d 1089, 1094 n. 5 (D.C.Cir.2008) (collecting cases). “It will be a rare case when it is clear that no acceptable reasoning can justify a given sentence.” Levinson, 543 F.3d at 195. This is not one of them. The Government claims that affirming Tomko’s sentence promotes sentencing disparities and, in turn, undermines general deterrence. Whatever the merits of this possibility, it does nothing to change our disposition. The Government’s concern is not new; it has been a point of constant focus throughout sentencing review’s evolution.

Before the Guidelines existed, “[sjerious disparities in sentences ... were common.” Mistretta, 488 U.S. at 365, 109 S.Ct. 647. When Congress created the mandatory Guidelines system, it did so “to ‘provide certainty and fairness in meeting the purposes of sentencing, [while] avoiding unwarranted sentencing disparities ... [and] maintaining sufficient flexibility to permit individualized sentences when warranted.’ ” Booker, 543 U.S. at 264, 125 S.Ct. 738 (quoting 28 U.S.C. § 991(b)(1)(B)). When the Supreme Court rendered the Guidelines advisory, it was fully aware that sentencing disparities would likely increase.

See id. at 263, 125 S.Ct. 738 (“We cannot and do not claim that use of a ‘reasonableness’ standard will provide the uniformity that Congress originally sought to secure.”). Despite that awareness, the Booker Court was confident that the advisory Guidelines system would “continue to move sentencing in Congress’ preferred direction, helping to avoid excessive sentencing disparities while maintaining flexibility sufficient to individualize sentences where necessary.” Id. at 264-65, 125 S.Ct. 738.

In Gall, the Court reaffirmed that “a more deferential abuse-of-discretion standard could successfully balance the need to ‘reduce unjustified disparities’ across the Nation and ‘consider every convicted person as an individual.’ ” 128 S.Ct. at 598 n. 8 (quoting Koon, 518 U.S. at 113, 116 S.Ct. 2035).

If abuse-of-discretion review cannot strike such a balance, it is not our role as appellate judges to adjust the scales. “The National Legislature is equipped to devise and install, long term, the sentencing system, compatible with the Constitution, that Congress judges best for the federal system of justice.” Booker, 543 U.S. at 265, 125 S.Ct. 738; see also Gall, 128 S.Ct. at 603 (Souter, J., concurring) (“I continue to think that the best resolution of the tension between substantial consistency throughout the system and the right of jury trial would be a new Act of Congress: reestablishing a statutory system of mandatory sentencing guidelines (though not identical to the original in all points of detail), but providing for jury findings of all facts necessary to set the upper range of sentencing discretion.”).

The risk of affirming an unwarranted sentencing disparity in this case is one we must accept while following the Supreme Court’s “pellueidly clear” command that we apply the abuse-of-discretion standard of review. Gall, 128 S.Ct. at 594. Our decision today should not suggest that variances of the size and character of Tomko’s will always be substantively reasonable. District courts must make sentencing determinations on an individualized basis. See Gall, 128 S.Ct. at 597.

Accordingly, the substantive reasonableness of each sentence must be evaluated on its own terms, based on the reasons that the district court provided, in light of the particular facts and circumstances of that case. As we recognized in Howe, “the point is that each case must be reviewed on its own.... ” 543 F.3d at 141. In sum, a significant number of us, if we were sitting as the district judge, might have applied the § 3553(

a) factors differently had we been the sentencing court. But this disagreement does not, by itself, demand reversal. Gall, 128 S.Ct. at 597; see also United States v. Schweitzer, 454 F.3d 197, 204 (3d Cir.2006) (“That we may ourselves have imposed a sentence different from that of the district court, based on our own de novo assessment of the evidence, is no basis to overturn the judgment.”). We reverse only when we discern an abuse-of-discretion. Looking at the record before us, we fail to see one here. V.

In order for the Guidelines regime to be truly advisory, a district court must be potentially able, when the proper situation arises, to sentence a defendant outside the Guidelines range but within the statutory-range. Any other conclusion would alter the statutory sentencing scheme enacted by Congress and interpreted by Booker. Here, the District Court conducted a thorough analysis of the § 3553(

a) factors and provided a complete explanation of the reasons underlying Tomko’s sentence. Holding Tomko’s sentence unreasonable under these circumstances might exert a subtle, though unintended pressure upon district courts to either craft sentences within the Guidelines range or ignore substantial upward or downward variances altogether. Such a result would be contrary to Rita’s declaration that courts of appeals may adopt only a “nonbinding appellate presumption that a Guidelines sentence is reasonable.... ” Rita, 127 S.Ct. at 2466 (emphasis added).

Our holding in this case is not an exercise in self-abnegation. Courts of appeals unquestionably have an important role to play in reviewing district courts’ sentencing decisions. But it is a limited role. Neither Gall nor Rita suggests that courts of appeals should do anything more than ensure the reasonableness of federal sentences. It bears repeating that “[t]he touchstone of ‘reasonableness’ is whether the record as a whole reflects rational and meaningful consideration of the factors enumerated in 18 U.S.C. § 3553(a).” Grier, 475 F.3d at 571.

Simply put, reasonableness review requires us to do nothing more and nothing less than to apply the deferential abuse-of-discretion standard, a role quite familiar to us. Gall, 128 S.Ct. at 594. “We do not seek to second guess. Given the widely recognized institutional advantages that district courts have in access to and consideration of evidence, we would be foolish to try.” Levinson, 543 F.3d at 196.

We must be mindful that the Sentencing Guidelines “reflect a rough approximation of sentences that might achieve § 3553(a)’s objectives,” Rita, 127 S.Ct. at 2465, and the Sentencing Commission has carried out those objectives at “wholesale,” id. at 2463. The sentencing judge, in contrast, carries out the § 3553(

a) objectives at “retail,” id., because “[t]he sentencing judge has access to, and greater familiarity with, the individual case and the individual defendant before him than the Commission or the appeals court,” id. at 2469. Here, the record demonstrates the District Court’s thoughtful attempt to tailor the off-the-rack Guidelines recommendations into a sentence that fits Tomko personally.

Where it believed the Guidelines recommendations too large or too small — for example, in the advisory ranges for imprisonment and fine — the Court took care to explain why this was the case before making the adjustments it felt necessary. This is precisely the type of individualized assessment that Gall demands, and to which we must defer. Accordingly, we will affirm the sentence that the District Court imposed. . As a Subchapter S Corporation, Tomko had to report all of Tomko, Inc.'s income and losses on his personal income tax return because the company was not subject to income taxation. .

Tomko had one prior criminal conviction: in 2001, he pleaded guilty in Maryland state court to operating a boat while intoxicated. He was sentenced to one year of probation, and he completed twenty hours of community service. . As a matter of terminology, we now speak in terms of sentencing departures, which are based on specific Guidelines provisions, and sentencing variances, which are based on the § 3553(

a) factors. United States v. Vampire Nation, 451 F.3d 189, 195 n. 2 (3d Cir.2006). . In accordance with 18 U.S.C. § 3553(a), a sentencing court must consider the following factors: (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 for— (

A) the applicable category of offense committed by the applicable category of defendant as set forth in the guidelines (5) any pertinent policy statement ... (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. . The District Court had jurisdiction pursuant to 18 U.S.C. § 3231, and we have jurisdiction to review the Government's appeal under 18 U.S.C. § 3742(

b) and 28 U.S.C. § 1291. . In 2003, Congress amended 18 U.S.C. § 3742(

e) to give courts of appeals the authority to review Guidelines departures de novo. United States v. Parker, 462 F.3d 273, 278 n. 6 (3d Cir.2006). In Booker, the Supreme Court excised that portion of § 3742(e), and replaced it with the abuse-of-discretion standard. 543 U.S. at 259-62, 125 S.Ct. 738. . Although the Supreme Court did not mention it as a rationale for applying the abuse-of-discretion standard to the current sentencing system, we recognize that sentencing decisions have become no less fact-bound than before.

Sentencing still requires district courts to "resolve questions involving 'multifarious, fleeting, special, narrow facts that utterly resist generalization.’” Koon, 518 U.S. at 99, 116 S.Ct. 2035 (quoting Cooter & Gell, 496 U.S. at 404, 110 S.Ct. 2447). . The District Court also stated that "I have sentenced him to the period of probation, which I recognize is below the guideline range. I also recognize that the fine is above 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.” (Emphasis added.) . We see no need in this case to elaborate further on what the “closer review” and "less respect” mentioned in Kimbrough and Spears might entail. .

We realize that it is possible to question the sincerity of Tomko's work for Habitat for Humanity because it only began after his indictment. But this merely underscores the district court’s institutional advantage at sentencing. Our view is from the level of thirty-thousand feet; appellate judges may suspect that these works have been corrupted by impure motives. The District Court, however, is on the ground and can better separate sincerity from self-seeking. . See supra note 6. .

Excluding Howe, the Gardellini Court identified nine post-Gall cases from the various circuits affirming upward and downward variances greater than twelve months. Gardellini, 545 F.3d at 1094 n. 5.