In United States v. Tomko, __ F.3d __, 2009 WL 1025876 (3d Cir. April 17, 2009) (en banc), the en banc Court (8-5) issued an important post-Gall opinion, reaffirming the principle that
"[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, __ U.S. __, 128 S. Ct. 586, 597 (2007). The Court concluded that the sentencing court did not abuse its discretion in sentencing defendant to probation with a year of home detention, community service, restitution, and fine for tax evasion, rather than to term of imprisonment; although sentence was below sentencing guidelines range of 12 to 18 months, court explicitly examined statutory sentencing factors, and after hearing argument from government concerning need for term of imprisonment, court reiterated its reasons for imposing sentence without one, and gave specific reasons for variance from guidelines range, taking into account defendant's negligible criminal history, employment record, community ties, and extensive charitable works, while also factoring in his substantial wealth as a reason for imposing a fine far above guidelines range.