## Facts

- William Tomko, owner and CEO of a plumbing and mechanical contracting company, arranged for construction work on his personal residence to be billed to corporate job sites.
- From 1995 to 1998, he directed multiple subcontractors and a general contractor to submit falsified invoices mischaracterizing where the work was performed.
- The company paid for the home construction and deducted the payments as business expenses; Tomko failed to report the payments as personal income.
- The scheme involved twelve subcontractors and produced a stipulated tax loss of about $228,557.
- Tomko pleaded guilty to one count of tax evasion in violation of 26 U.S.C. § 7201.
- The advisory Sentencing Guidelines range was 12–18 months’ imprisonment.
- The district court imposed a below-Guidelines, noncustodial sentence: three years’ probation (including one year of home detention), 250 hours of community service, a $250,000 fine, restitution, and 28 days of in-house alcohol treatment.
- The government appealed, arguing the variance failed to reflect offense seriousness and general deterrence for tax crimes.

## Issues

1. Whether, under Gall’s abuse-of-discretion standard, a probationary sentence far below a 12–18 month Guidelines range for tax evasion with a $228,557 tax loss was substantively unreasonable under 18 U.S.C. § 3553(a).

## Decision

- The en banc Third Circuit affirmed the sentence.
- The court held the sentence was not substantively unreasonable under deferential abuse-of-discretion review.
- The court concluded the district court adequately considered the § 3553(a) factors and provided an individualized explanation for the variance.
- The court ruled reversal was not permitted merely because appellate judges might have imposed imprisonment.

## Legal Principles

- Appellate review of substantive reasonableness applies an abuse-of-discretion standard, giving due deference to the district court’s weighing of § 3553(a).
- A large variance from the advisory Guidelines range is not presumptively unreasonable; the Guidelines are a starting point, not a mandate.
- A sentence may be affirmed if the district court’s explanation shows a reasoned, individualized assessment of the statutory factors, even if other reasonable judges would choose a different sentence.
- Substantive unreasonableness requires more than disagreement with the district court’s balancing of deterrence, punishment, and defendant-specific circumstances.

## Conclusion

The Third Circuit upheld a noncustodial, below-Guidelines sentence for tax evasion, emphasizing that post-Gall appellate courts must defer to a district court’s reasoned, individualized § 3553(a) analysis and may not reverse simply because they would have imposed a harsher sentence.


United States v. Tomko, 562 F.3d 558 (3d Cir. 2009)