Cost of Incarceration Is Not a Permissible Factor In Deciding Whether To Impose Imprisonment

Convicted of filing a false corporate tax return, Park was sentenced to three years’ probation, including six months’ home detention. The district court (Judge Block) explained that it was imposing this sentence — below the 15-to-21 month Guidelines range of imprisonment — solely because of the “government shut-down” in place at the time of sentencing.  The court said that it was not imposing imprisonment “only because of the economic plight that we are facing today.”

On the government’s appeal, the Circuit held that the probationary sentence was both procedurally and substantively unreasonable. On the procedural side, the district court erred by considering only the cost of incarceration, rather than all of the sentencing factors set forth in 18 U.S.C. § 3553(a).  Indeed, the Circuit held, the court should not have considered the cost of incarceration at all, because that factor is not an appropriate basis for deciding whether imprisonment is warranted.  “We conclude,” the Court wrote, “that the cost of imprisonment is not a sentencing factor enumerated in § 3553(a), nor is it an additional factor upon which district courts may rely in deciding whether to impose a term of incarceration under 18 U.S.C. § 3582(a).”

The Circuit also held that a probationary sentence was substantively unreasonable, at least on the existing record. “We . . . hold that, in light of the need for deterrence and just punishment and the District Court’s own conclusion that, based on the record before it, a term of imprisonment was warranted, the probationary sentence imposed here was substantively unreasonable.” The Circuit emphasized that its decision was based on “the record currently before us,” and that imposition of a probationary sentence again on remand, after proper consideration of the § 3553(a) factors, would not necessarily be substantively unreasonable.