United States v. H. Ty Warner , 792 F.3d 847 ( 2015 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14-1330
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
v.
H. TY WARNER,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:13-cr-00731 — Charles P. Kocoras, Judge.
____________________
ARGUED SEPTEMBER 17, 2014 — DECIDED JULY 10, 2015
____________________
Before FLAUM, KANNE, and ROVNER, Circuit Judges.
KANNE, Circuit Judge. Defendant H. Ty Warner, the bil-
lionaire creator of Beanie Babies, evaded $5.6 million in U.S.
taxes by hiding assets in a Swiss bank account. He pled
guilty to one count of tax evasion, made full restitution, and
paid a $53.6 million civil penalty. The Sentencing Guidelines
provided a recommended 46- to 57-month term of impris-
onment, but the district judge gave Warner a more lenient
sentence: two years’ probation with community service, plus
2 No. 14-1330
a $100,000 fine and costs. The government claims his sen-
tence is unreasonable because it does not include a term of
incarceration.
In a typical case, we might agree. But this is not a typical
case. The district judge found Warner’s record of charity and
benevolence “overwhelming.” Indeed, the judge remarked
that Warner’s conduct was unprecedented when viewed
through the judge’s more-than-three decades on the bench.
In the district court’s opinion, this and other mitigating fac-
tors—including the uncharacteristic nature of Warner’s
crime, his attempt to disclose his account, his payment of a
penalty ten times the size of the tax loss, and the govern-
ment’s own request for a sentence well below the guidelines
range—justified leniency. District courts enjoy broad discre-
tion to fashion an appropriate, individualized sentence in
light of the factors in 18 U.S.C. § 3553(a). The court here did
not abuse its discretion. Rather, it fully explained and sup-
ported its decision and reached an outcome that is reasona-
ble under the unique circumstances of this case. We there-
fore affirm Warner’s sentence.
I. BACKGROUND
Warner was born in Chicago in 1944 and grew up in a
troubled family. He attended a military high school in Wis-
consin and spent a year at Kalamazoo College, but ultimate-
ly dropped out because he could no longer afford tuition. To
make ends meet, he worked a series of odd jobs, including
stints as a busboy, a bellman, and a door-to-door salesman.
Eventually, he found his feet selling children’s plush toys for
the Dakin Toy Company. Within a few years, he was Dakin’s
top salesman.
No. 14-1330 3
In 1985, Warner formed his own plush toy company, Ty
Inc., which he initially ran by himself out of his condomini-
um. His big break came in the early 1990s with the introduc-
tion of a new toy to the market: the Beanie Baby. A huge suc-
cess, the Beanie Baby propelled Ty Inc. into a multi-billion-
dollar company and made Warner rich. His net worth at the
time of sentencing was roughly $1.7 billion.
A. Warner’s Tax Evasion and Attempted Disclosure
In 1996, during the early period of Beanie Babies’ success,
Warner traveled to Zurich, Switzerland, and opened an off-
shore bank account at UBS AG (“UBS”). The record does not
disclose how much money Warner originally deposited or
where the funds came from, but within several years the ac-
count contained $93 million. Consistent with their advice,
Warner instructed his bankers not to send him any corre-
spondence and to destroy all account documents after five
years. He did not report the account to the Internal Revenue
Service (“IRS”).
Warner was not the only American taxpayer hiding assets
at UBS. With the help of bankers in UBS’s cross-border divi-
sion, many others opened offshore accounts to avoid U.S.
taxes. One of the bankers involved in this fraudulent scheme
was Hansreudi Schumacher, who serviced Warner’s account.
After UBS entered into a Qualified Intermediary Agreement
with the IRS in 2001 (which created certain tax reporting ob-
ligations), Schumacher left to join another Swiss bank.
Warner followed him. In late 2002, Warner traveled to
Switzerland and, with Schumacher’s help, transferred his
funds from UBS to Zuercher Kantonalbank (“ZKB”), a
smaller Swiss bank without a significant U.S. presence. He
4 No. 14-1330
placed the funds at ZKB in the name of a Liechtenstein shell
entity, the “Molani Foundation.” And he instructed UBS “not
to engage in any sort of communication with me re transfer,”
but instead to send all correspondence to Schumacher. At
ZKB, Warner’s account grew to over $107 million.
Warner did not disclose his offshore account to the IRS.
On the contrary, he reported on his annual tax returns that
he had no foreign financial account. And he did not report or
pay taxes on the interest income generated by his offshore
assets, which amounted to over $24.4 million through 2007.
As a result, the government lost $5,594,877 in tax revenue—
the second-highest loss among the former UBS clients who
have been prosecuted to date.
In 2008 the Department of Justice launched a program to
aggressively combat offshore tax evasion. 1 The program be-
gan with an investigation of UBS. In April the government
indicted former UBS banker Bradley Birkenfeld. In February
2009 it filed a one-count information against UBS and quick-
ly executed a deferred prosecution agreement, under which
UBS admitted wrongdoing and agreed to hand over infor-
mation on certain U.S. offshore clients. Several months later,
the government brought charges against former UBS and
Schumacher client Jeffrey Chernick. In August 2009 Schu-
macher himself was indicted.
At the same time, the government encouraged tax-
evaders to come forward on their own by announcing an IRS
offshore voluntary disclosure program in March 2009 (the
“OVDP”). Under the program, taxpayers who voluntarily
1 See generally http://www.justice.gov/tax/offshore-compliance-initiative
(last visited July 9, 2015).
No. 14-1330 5
disclosed their offshore accounts could avoid criminal pros-
ecution by paying back taxes, interest, and penalties, includ-
ing 20% of the account’s peak value. On the other hand,
those who continued to hide their assets would face height-
ened enforcement and severe penalties. Taxpayers had a six-
month window—until September 23, 2009 (later extended)—
to take advantage of the OVDP. Thousands of taxpayers
were admitted into the program. 2
Warner was aware of the government’s investigation of
UBS, which was widely publicized, and of Schumacher’s in-
dictment. Warner says that he regretted his decision to open
the offshore account from the beginning but felt stuck; and
that he never withdrew or otherwise used the funds in the
account. In 2009 he contacted his lawyer to discuss his op-
tions, and his lawyer told him about the OVDP. On Septem-
ber 18, 2009—just before the original deadline—Warner ap-
plied to enter the program. Unbeknownst to him, however,
he was already under investigation; the government had ob-
tained his account information in 2008 or 2009, possibly from
UBS. The pending investigation made Warner ineligible for
the OVDP, see IRM § 9.5.11.9(4)(a), (b) (Sept. 9, 2004), so the
government rejected his application.
Two years later, in 2011, a grand jury subpoenaed Warn-
er’s offshore banking records. He resisted the subpoena, but
we ultimately required him to comply. In re Special Feb. 2011-
1 Grand Jury Subpoena Dated Sept. 12, 2011, 691 F.3d 903, 909
(7th Cir. 2012), cert. denied, 133 S. Ct. 2338 (2013).
2Information on the 2009 disclosure program and its successors is avail-
able on the IRS’s webpage at http://www.irs.gov/uac/2009-Offshore-
Voluntary-Disclosure-Program (last visited July 9, 2015).
6 No. 14-1330
B. Warner’s Information and Guilty Plea
In September 2013 the government filed a one-count in-
formation charging Warner with willful tax evasion in viola-
tion of 26 U.S.C. § 7201. The information alleged that Warner
evaded $885,300 in taxes for 2002 by: (1) excluding from his
reported income the interest from his offshore assets;
(2) fraudulently stating on his tax return that he had no for-
eign account; and (3) failing to file a Report of Foreign Bank
and Financial Account (an “FBAR” form), as required by the
Bank Secrecy Act and implementing regulations, see 31
U.S.C. § 5314.
In October 2013 Warner pled guilty to the one-count in-
formation. As part of his plea agreement, he also admitted to
similar misconduct from 1996 to 2007, which he agreed con-
stituted “relevant conduct” under U.S. Sentencing Guide-
lines Manual § 1B1.3 (Nov. 2012) (“USSG”). He promised to
pay full restitution and a civil FBAR penalty of $53,552,248—
equal to 50% of the maximum balance in his offshore ac-
count in 2008 (which is 30% higher than the penalty he
would have owed had he been admitted to the OVDP). As
far as we are aware, Warner’s $53.6 million payment is the
largest FBAR penalty the government has collected to date.
Warner paid both the penalty and restitution before his sen-
tencing hearing.
Warner’s plea deal included an agreed-upon guidelines
calculation. The base offense level for a tax loss of $5.6 mil-
lion was 24 under USSG §§ 2T1.1 and 2T4.1(J). The parties
agreed to add 2 levels under USSG § 2T1.1(b)(2) because the
offense involved sophisticated means, subtract 2 levels for
acceptance of responsibility under USSG § 3E1.1(a), and sub-
tract 1 more under USSG § 3E1.1(b) because Warner’s guilty
No. 14-1330 7
plea obviated the need to prepare for trial—resulting in a fi-
nal offense level of 23. Because Warner had no prior convic-
tions, his criminal history category was I. This yielded an
advisory guidelines range of 46 to 57 months’ imprisonment.
See USSG ch. 5, pt. A (sentencing table).
Beyond stipulating to the guidelines calculation, the plea
agreement left each side free to argue for whatever sentence
it deemed appropriate.
C. Sentencing
In their pre-sentencing submissions, neither side pro-
posed a sentence within the guidelines range. The govern-
ment requested incarceration “in excess of a year and a day,”
a sentence well below the recommended minimum. The
probation officer recommended a prison term of 15 months.
Warner argued that a sentence of probation with community
service would suffice, and that it would provide greater ben-
efit to society. He offered to mentor students in business and
product development at three urban high schools on Chica-
go’s South Side. The president of one of the schools submit-
ted a letter detailing specific ways that Warner could help. In
addition, approximately seventy people—business associ-
ates, employees, neighbors, charitable foundations, and oth-
ers who knew Warner—submitted character-reference letters
in his behalf.
The sentencing hearing took place on January 14, 2014,
before District Judge Kocoras. After argument from both
sides, the court pronounced Warner’s sentence and ex-
plained its decision. The court also issued a short written
statement of reasons to supplement its oral explanation. The
hearing transcript runs fifty-five pages.
8 No. 14-1330
The district court adopted the findings in the presentence
report and agreed with the calculation of the guidelines
range. But the court decided to impose a below-guidelines
sentence based on “the nature and circumstances of the of-
fense and the history and characteristics of the defendant.”
18 U.S.C. § 3553(a)(1). The court was moved by the letters
submitted in Warner’s behalf, which were “quite different”
from the letters it typically received in other cases: they were
voluminous, detailed, and revealed Warner’s “personal qual-
ities, which differ from those he manifested in committing
the crimes he has admitted.” The court read several letters
into the record. For brevity’s sake, we give only a partial
summary.
One letter related that in 2012 Warner stopped to ask a
stranger for directions in Santa Barbara, California. Her
name was Jennifer Vasilakos, and she was holding a fund-
raiser called “Parking for Jenny.” In addition to directions,
she gave him a flyer explaining that she suffered from kid-
ney failure and needed money to pay for an expensive adult
stem cell treatment. An hour later, after reading the flyer,
Warner returned and promised to pay the full amount she
needed ($20,000). He followed through, but “[his] generosity
went further than simply donating.” He helped her “raise
awareness” and connected her with others interested in the
potential of adult stem cells for treating kidney failure. As a
result, she has met with leaders in the field, toured laborato-
ries, and “altered the path of research.”
Another letter came from the president of the Children’s
Hunger Fund, an organization serving needy children in or-
phanages, disaster-stricken areas, and elsewhere. Over thir-
teen years, Warner donated millions of plush toys valued at
No. 14-1330 9
$70 million and enabled numerous charitable projects. The
president called Warner’s generosity “nothing short of amaz-
ing” and “unprecedented” in his thirty-plus years in the
non-profit sector. What is more, “in every instance,” he not-
ed, Warner “ha[d] humbly requested that no special efforts
be made to publicly acknowledge his philanthropy.”
In a third letter, the director of financial reporting for
Warner’s company called him “the most benevolent person I
have ever met.” He explained, for example, that when Ty
Inc. broke $1 million in annual sales, Warner surprised his
employees with an annual bonus equal to one year’s salary;
he also maintained his sales team’s high commission rates,
making many of them millionaires.
The other letters that the district court read at the hearing
told similar stories. For example, in honor of Princess Diana,
Warner designed a plush toy and donated $20 million in
profits to her memorial fund. To commemorate a friend’s 18-
year-old son who had succumbed to cancer, Warner created
an Issy Bear and donated $2 million in profits for cancer re-
search. He gave $6.3 million to a charter school in Las Vegas;
donated $13 million to enable the acquisition and develop-
ment of a park in Westmont, Illinois; and gave $2 million for
disaster relief in Japan. In addition to these letters, the court
noted that dozens more “describe[d] a host of other actions,
large and small, which reflect on Mr. Warner and are entitled
to consideration in determining a just sentence for him.”
The district court found that “Mr. Warner’s private acts of
kindness, generosity and benevolence are overwhelming.”
Moreover, many of them took place long before Warner
knew he was under investigation; the court found they were
“motivated by the purest of intentions” and “without a view
10 No. 14-1330
toward using [them] at sentencing.” Most were “done quiet-
ly and privately.” The district judge, who has been on the
bench for more than thirty years, then remarked: “Never
have I had a defendant in any case—white collar crime or
otherwise—demonstrate the level of humanity and concern
for the welfare of others as has Mr. Warner.”
The court also discussed the other § 3553(a) factors,
which it acknowledged “run in different directions.” On the
one hand, the court emphasized the need to maintain the
“dignity of the law,” to treat “the rich and the poor similar-
ly,” and to deter other tax-evaders. It recognized that Warner
“hid a substantial amount of money” for many years, and
that his crime was “a serious one [which] goes to the essence
of how we govern ourselves.” The court also acknowledged
the government’s comparisons to other tax evaders who had
received prison sentences despite having lower tax losses
than Warner, though it found the comparisons unhelpful be-
cause Warner was “very unique.”
On the other hand, the court found that Warner con-
cealed only a “small fraction” of his total income and tried to
come clean through the OVDP “prior to him knowing his
name had been submitted to the [IRS].” Moreover, in one
sense, Warner had already been “punished … severely” by
paying a penalty of over $53 million—possibly “the largest
fine in history” and “more than he ever would have paid
had he filed the returns and included all of the income,”
though it was admittedly only “a small percentage” of
Warner’s total wealth. He also suffered the “humiliation” of
a “highly publicized prosecution.” Warner was 69 years old,
had no prior criminal history and, in the district court’s view,
was extremely unlikely to commit any further crimes. The
No. 14-1330 11
district court also noted Warner’s prompt payment of his
civil liabilities and his compliance with the plea agreement.
Having examined the relevant factors, the district judge
said it was now “left to me to weigh them all and balance
them, as best … I am humanly able.” He candidly admitted
that it was a “hard question” whether to incarcerate Warner,
and that he “struggled over it.” But in the end he found that
Warner’s good works “trump[ed]” his misconduct and that
“society will be best served by allowing him to continue his
good works” outside of prison. A sentence below the guide-
lines range was fitting, the court explained, because “the
Guidelines do not describe similarly situated defendants”;
Warner was “very unique.” The government itself had rec-
ommended a well-below-guidelines sentence—an approach
the court commended as “quite reasonable.”
The district court sentenced Warner to two years’ proba-
tion, subject to standard conditions and a special condition
requiring at least 500 hours of community service at the
three South Side high schools he had identified. The court
also fined Warner $100,000—the maximum amount author-
ized by 26 U.S.C. § 7201—and ordered him to pay costs.
The government timely appealed. The district court had
jurisdiction under 18 U.S.C. § 3231, and we have appellate
jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(b).
II. ANALYSIS
The government contends that Warner’s sentence is un-
reasonable because it does not include a prison term. For the
reasons that follow, we disagree.
For starters, no statute expressly required the district
court to send Warner to prison. The law that Warner violat-
12 No. 14-1330
ed, 26 U.S.C. § 7201, permits the court to impose a fine in-
stead, which it did here. And Warner was eligible for proba-
tion under 18 U.S.C. § 3561.
It was therefore up to the district court to select an ap-
propriate sentence in accordance with the factors in 18
U.S.C. § 3553(a). One of those factors is the type and range of
sentence established by the guidelines. 18 U.S.C. § 3553(a)(4).
After United States v. Booker, however, the guidelines are
merely advisory. 543 U.S. 220, 245 (2005). While the § 3553(a)
analysis still begins with a consideration of the guidelines, it
does not end there. Rita v. United States, 551 U.S. 338, 351
(2007). The sentencing judge may not perfunctorily impose a
guidelines sentence or even presume that such a sentence is
appropriate in a given case. See Gall v. United States, 552 U.S.
38, 50 (2007). The guidelines range is only “a rough approx-
imation of sentences that might achieve § 3553(a)'s objec-
tives” in the “mine run of cases.” Rita, 551 U.S. at 350-51. It
supplies “the starting point and the initial benchmark,” but
nothing more. Gall, 552 U.S. at 49.
The district court must next consider the other § 3553(a)
factors. Id. at 49-50. The first factor encompasses both “the
nature and circumstances of the offense” and “the history
and characteristics of the defendant.” 18 U.S.C. § 3553(a)(1).
The second demands a sentence that is “sufficient, but not
greater than necessary” to accomplish the basic purposes of
sentencing: just punishment, deterrence, incapacitation, and
rehabilitation. Id. § 3553(a)(2). The sixth factor is “the need to
avoid unwarranted sentence disparities” among similarly
situated defendants. Id. § 3553(a)(6). The others are: the types
of sentence available, sentencing policy statements, and the
need for restitution. Id. § 3553(a)(3), (5), (7).
No. 14-1330 13
Ultimately, it falls on the district court to weigh and bal-
ance the various factors and to “make an individualized as-
sessment based on the facts presented.” Gall, 552 U.S. at 50;
see also id. at 52 (viewing “every case as a unique study in the
human failings that sometimes mitigate, sometimes magnify,
the crime and the punishment to ensue” (citation omitted)).
The open-endedness of the § 3553(a) factors leaves ample
room for the court’s discretion. See United States v. Wachowiak,
496 F.3d 744, 748 (7th Cir. 2007). Once the court chooses a
sentence, § 3553(c) requires the district judge to “state in
open court the reasons” for imposing it. The explanation
need not be exhaustive as long as it “allow[s] for meaningful
appellate review and … promote[s] the perception of fair
sentencing.” United States v. Omole, 523 F.3d 691, 697 (7th Cir.
2008) (quoting Gall, 552 U.S. at 50). The court is free to select
a sentence outside the guidelines range, see Kimbrough v.
United States, 552 U.S. 85, 91 (2007), but it must explain and
support the magnitude of the variance, United States v. Mol-
ton, 743 F.3d 479, 484 (7th Cir. 2014).
We review a district court’s choice of sentence in two
steps. Gall, 552 U.S. at 51. First, we assess de novo whether the
court followed proper procedures. United States v. Nania, 724
F.3d 824, 830 (7th Cir. 2013). If the decision below is proce-
durally sound, then we ask whether the resulting sentence is
“substantively reasonable.” Id. Unlike the sentencing judge,
we may presume on appeal that a within-guidelines sen-
tence is reasonable. Rita, 551 U.S. at 341. But we may not
presume that a sentence outside the guidelines range is un-
reasonable. Gall, 552 U.S. at 51. Instead, we must decide
whether the district court’s justification is sufficient, apply-
ing a deferential abuse of discretion standard. Id. at 40; Mol-
ton, 743 F.3d at 484. We will not substitute our judgment for
14 No. 14-1330
that of the district court. Wachowiak, 496 F.3d at 751. For we
are mindful that substantive reasonableness occupies “a
range, not a point,” id., and that “the sentencing judge is in
the best position to apply the § 3553(a) factors to the indi-
vidual defendant,” Omole, 523 F.3d at 698.
Thus, we will uphold a variant (i.e., outside-the-
guidelines) sentence so long as the district court’s reasoning
(1) rests on reliable evidence, United States v. England, 555
F.3d 616, 622 (7th Cir. 2009); (2) is consistent with § 3553(a),
Molton, 743 F.3d at 484; and (3) yields a sentence “within the
broad range of objectively reasonable sentences in the cir-
cumstances,” Wachowiak, 496 F.3d at 750. A variant sentence
is most likely to pass muster if it is based on considerations
particular to the defendant or the case, as opposed to “nor-
mal incidents of the offense or the judge’s wholesale disa-
greement with the guidelines.” Wachowiak, 496 F.3d at 750. In
general, a disagreement about how much weight to give
each § 3553(a) factor does not warrant reversal. See Molton,
743 F.3d at 485; accord United States v. Fernandez, 443 F.3d 19,
32 (2d Cir. 2006) (“The weight to be afforded any given ar-
gument made pursuant to one of the § 3553(a) factors is a
matter firmly committed to the discretion of the sentencing
judge….”).
A. Procedural Reasonableness
While the government primarily takes aim at the sub-
stance of Warner’s sentence, it also claims in several foot-
notes that the district judge procedurally erred by overlook-
ing two of the § 3553(a) factors: the need to deter other tax-
evaders and to avoid unwarranted sentencing disparities.
Setting aside the question whether the government pre-
served this argument, see Harmon v. Gordon, 712 F.3d 1044,
No. 14-1330 15
1053 (7th Cir. 2013) ("[A] party can waive an argument by
presenting it only in an undeveloped footnote."), we reject it
on the merits.
Failure to consider the § 3553(a) factors or to adequately
explain the choice of sentence can amount to procedural er-
ror. See Gall, 552 U.S. at 51. But the “sentencing court need
not comprehensively discuss each of the factors,” United
States v. Villegas-Miranda, 579 F.3d 798, 801 (7th Cir. 2009), or
march through them “in checklist fashion, explicitly articu-
lating its conclusions regarding each one,” United States v.
Shannon, 518 F.3d 494, 496 (7th Cir. 2008).
The district court here addressed the § 3553(a) factors
and explained their relevance to Warner’s sentence, exactly
as it was supposed to do. In particular, the court expressly
addressed both deterrence (which it found sufficient) and
sentencing disparities (finding “the variety of comparisons
made by both sides” unhelpful because Warner was “very
unique”). The government’s real complaint is that the district
court did not, in its view, adequately address its arguments.
But that issue goes to the substance of Warner’s sentence. As
a procedural matter, the court’s explanation was more than
sufficient.
B. Substantive Reasonableness
That brings us to the heart of this appeal. We begin our
review for substantive reasonableness by stating the obvi-
ous: Warner’s sentence is well below the guidelines recom-
mendation. He received both a shorter sentence (24 rather
than 46 to 57 months) and a lighter one (probation rather
than prison). Although, as noted above, Warner was eligible
for probation under 18 U.S.C. § 3561, the guidelines advised
16 No. 14-1330
imprisonment rather than probation due to the length of his
sentencing range. See USSG § 5B1.1(a).
We must decide whether the district court’s explanation
justifies Warner’s sentence, including the magnitude of its
deviation from the guidelines. Molton, 743 F.3d at 484. No
one disputes that he deserved a below-guidelines sentence.
The dispute centers instead on how far below the guidelines
the court should have gone. Warner requested probation.
The government proposed over a year and a day in prison—
which would have made Warner eligible for good-time cred-
it, likely reducing his actual time served to less than a year.
See 18 U.S.C. § 3624(b)(1). While the court was not strictly
bound by their recommendations, it was well within the
court’s discretion to use that range as a benchmark. See Gall,
552 U.S. at 49-50 (directing the court to determine whether
the § 3553(a) factors “support the sentence requested by a par-
ty” (emphasis added)). The real choice before the district
court, then, was between probation and roughly a year in
prison—not 46 to 57 months.
Did the district court choose reasonably between those
alternatives? The government says no. It argues that in ana-
lyzing the § 3553(a) factors, the court made numerous errors
and ultimately put too much weight on Warner’s charitable
contributions and letters of support (factor 1), and too little
weight on the seriousness of his offense (factor 2(A)), general
deterrence (factor 2(B)), and sentencing disparities (factor 6).
We address each factor in turn.
1. Characteristics of the Defendant
Section 3553(a)(1) instructs the sentencing judge to con-
sider “the history and characteristics of the defendant.” A
No. 14-1330 17
defendant’s record of charity may justify a lenient sentence.
Though our earlier cases required “exceptional” good works,
United States v. Repking, 467 F.3d 1091, 1095 (7th Cir. 2006)
(per curiam), the Supreme Court has since “reject[ed] … an
appellate rule that requires ‘extraordinary’ circumstances to
justify a sentence outside the Guidelines range,” Gall, 552
U.S. at 47. Accordingly, to survive appellate review, a de-
fendant’s good works must be sufficient to justify the variant
sentence, but they need not necessarily be exceptional.
Relying mainly on Warner’s letters of support, the district
court found his charitable works and the generosity they be-
speak overwhelming—indeed, unprecedented in the district
judge’s experience. This was the primary mitigating factor
that drove the court toward a lenient sentence. The govern-
ment attacks the court’s assessment on two grounds.
First, the government questions the value of Warner’s let-
ters because many of them came from his employees, former
employees, business associates, and attorneys; and because
some of the good deeds they report took place after Warner
knew he was under investigation. But the district court ad-
dressed both points. It noted the source of the letters and yet
found them sincere and credible. And it specifically found
that Warner’s generosity went back many years, that his mo-
tivations were sincere, and that he was not trying to game
the system or create a record to use at sentencing. Given the
record before us, these findings are not clearly erroneous. See
United States v. Gordon, 513 F.3d 659, 666 (7th Cir. 2008).
Second, the government argues that Warner’s charity
amounts to no more than “writing checks [and] donating ex-
cess inventory,” which is “nothing unique” considering his
“enormous wealth.” Though Warner says he donated $140
18 No. 14-1330
million, about 8% of his net worth, the government asserts
the correct figure is $35.7 million, about 2% of his net worth.3
The government raised this dispute below in a footnote, so
the district court understandably did not resolve it.
Whatever the correct figure may be, the government
misses the point of the district court’s remarks. Although it
praised Warner for giving away many millions of dollars,
the court did not focus on the number of checks Warner
wrote or their dollar amounts. It focused instead on what
Warner’s charitable acts reveal about his character, which is
exactly what § 3553(a)(1) directs us to consider. For example,
the court read the letter from Ms. Vasilakos first and in its
entirety, even though the $20,000 Warner donated for her
treatment was a relatively small sum. What was remarkable
was that Warner helped a total stranger and that his “gener-
osity went further than simply donating.” The court also
highlighted Warner’s insistence that the Children’s Hunger
Fund not publicize his philanthropy, as well as Warner’s
kindness to his employees. None of the court’s comments
fixated on the amount of money involved. What struck the
court was that Warner displayed such “humanity and con-
cern for the welfare of others” and acted with “the purest of
intentions,” often “quietly and privately.” Cf. Matt. 6:3-4
(RSV) (“[W]hen you give alms, do not let your left hand
know what your right hand is doing, so that your alms may
be in secret.”)
3 Warner’s figure includes the retail value of toys he donated to charities;
the government claims those toys should be valued at their actual cost to
the defendant. Warner’s figure also includes donations for which, ac-
cording to him, he did not claim deductions on his tax returns; the gov-
ernment’s figure does not include those additional donations.
No. 14-1330 19
The government was free to challenge the district court’s
assessment of Warner’s character below, but we will not dis-
turb the court’s findings on appeal. As we stated above, they
have ample support in the record and are not clearly errone-
ous. Nor did the district court err by placing as much weight
as it did on Warner’s character. Though we ourselves might
have given this factor less weight compared to others, the
court did not abuse its discretion. See Gall, 552 U.S. at 51(“The fact that the appellate court might reasonably have
concluded that a different sentence was appropriate is insuf-
ficient to justify reversal of the district court.”); Fernandez,
443 F.3d at 32 (committing the assignment of weight to the
§ 3553(a) factors to the sentencing judge’s discretion).
Our conclusion is consistent with the cases cited by the
government, Repking and United States v. Vrdolyak, 593 F.3d
676 (7th Cir. 2010). In Repking, we vacated as substantively
unreasonable a below-guidelines one-day sentence for a
bank president who misappropriated funds. 467 F.3d at
1091-92. The district judge’s offhanded reference to “unspeci-
fied ‘good works’” that were “entirely consistent with a
bank’s business development plan” did not justify such leni-
ency. Id. at 1093, 1096. This case is different: among other
mitigating facts, the district court specified in detail with ref-
erence to the record what good works Warner did and what
they revealed about him as a person. The court found, more-
over, that Warner was motivated by genuine benevolence
rather than ulterior aims.
In Vrdolyak, we reversed a below-guidelines probationary
sentence for conspiracy to commit mail and wire fraud. 593
F.3d at 684. The defendant there had “a history of ethical
misconduct,” but the district court ignored it; it also over-
20 No. 14-1330
looked the defendant’s wealth. Id. at 682. Warner, by con-
trast, has a clean history apart from his tax evasion, and the
district court recognized both his crime and his wealth.
Moreover, because Vrdolyak was a procedural challenge, we
expressed “no view on what a proper sentence would be.”
Id. at 684. But that is precisely the question before us now;
Vrdolyak does not speak to it.
Nor are we allowing Warner to use his wealth as a “get-
out-of-jail card,” id. at 682, as the government charges. The
district court looked behind the numbers to Warner’s charac-
ter and found him to be a genuinely benevolent person. A
non-wealthy defendant who showed similar qualities would
be entitled to similar treatment (all else being equal). And a
rich defendant who gave large gifts without real concern for
others, or who did so cynically to give himself an argument
at sentencing, would not deserve the same leniency.
2. Seriousness of the Offense
Section 3553(a) demands “a sentence sufficient, but not
greater than necessary, to comply with the purposes” of sen-
tencing. One of those purposes is “to reflect the seriousness
of the offense, to promote respect for the law, and to provide
just punishment.” 18 U.S.C. § 3553(a)(2)(A). The district
court here recognized Warner’s crime as “a serious one” and
respect for the law as “fundamental.” According to the gov-
ernment, however, this was mere lip service, for Warner’s
sentence does not justly punish him or convey the serious-
ness of evading $5.6 million in taxes.
In another case, justice might demand a harsher sentence,
but here it does not. To begin with, the government itself
took a fairly lenient approach to Warner’s punishment. It
No. 14-1330 21
charged him with a single count of tax evasion for a single
year and elected to treat his conduct in the other years as rel-
evant for sentencing purposes rather than to charge them as
separate crimes. Additionally, as we noted above, the gov-
ernment sought a sentence well below the guidelines range.
Both decisions were within the government’s prosecutorial
discretion, and we do not second-guess them. But they start-
ed the district court down a path toward leniency.
It was reasonable for the district court to follow that path
here. For a sentencing judge must consider not only the seri-
ousness but also the “nature and circumstances of the of-
fense.” 18 U.S.C. § 3553(a)(1). The court noted several miti-
gating circumstances in Warner’s case. His crime was isolat-
ed and uncharacteristic: he had kept only one offshore ac-
count containing “a small fraction” (about 6%) of his total
wealth. He was 69 years old, had no prior criminal history,
and posed no danger to society. In particular, the court
found, there was “no question of him violating the tax laws
in the future.” Moreover, he cooperated by pleading guilty
and promptly paying both full restitution and the FBAR
penalty, although, it is true, his cooperation was incomplete
(e.g., he resisted the government’s subpoena and did not dis-
close the source of his offshore assets).
The district court also appropriately took into account
Warner’s attempt to enter the OVDP in September 2009. It is
true that Warner already knew about the UBS investigation
and Schumacher’s indictment, so he was on notice of some
probability that his own account would be discovered. That
lessens the mitigating force of his attempted disclosure but
does not eliminate it. Many other offshore-accountholders
were similarly on notice, given the IRS’s widely publicized
22 No. 14-1330
prosecutions and enforcement efforts; yet many of them
were eventually admitted into the OVDP anyway. The sali-
ent fact, in the district court’s view, is that Warner came for-
ward before he knew the IRS had his name or that he was
under investigation. It was reasonable to consider this a mit-
igating fact. Cf. United States v. Tenzer, 213 F.3d 34, 42-43 (2d
Cir. 2000) (treating as mitigating a defendant’s failed attempt
to enter an IRS voluntary disclosure program).
In these circumstances, we think probation was a suffi-
ciently serious sentence. The Supreme Court reminded us in
Gall that probation involves a “substantial restriction of free-
dom,” and faulted the court below for discounting that fact.
552 U.S. at 48. For two years Warner will live under re-
strictions on his movement and activities, and he must per-
form at least 500 hours of community service. Moreover, he
paid a $100,000 fine, the highest possible amount for a viola-
tion of 26 U.S.C. § 7201.
In addition, Warner paid full restitution and a $53.6 mil-
lion FBAR penalty. Technically the FBAR penalty is civil ra-
ther than criminal in nature. See 31 U.S.C. § 5321. But it stems
from the same conduct as his criminal conviction; in fact, the
government specifically cited his FBAR violations in the in-
formation as evidence of his criminal tax evasion. Further,
the FBAR penalty was part of Warner’s plea agreement. It is
therefore one of the circumstances that informs our assess-
ment of his sentence’s adequacy. Cf. USSG § 5E1.2(d)(5) (in-
structing the court, when determining fines, to consider “any
collateral consequences of conviction, including civil obliga-
tions arising from the defendant’s conduct”); United States v.
Anderson, 267 F. App’x 847, 850 (11th Cir. 2008) (per curiam)
(upholding a probationary sentence for insider trading
No. 14-1330 23
based in part on the defendant’s payment of restitution and a
civil penalty to the SEC).
The government now tries to downplay Warner’s FBAR
penalty, claiming it represents only a fraction of the liability
he faced. According to the government, it could have
charged Warner a separate penalty for each year he hid his
account. Even assuming the relevant statute, 31 U.S.C.
§ 5321(a)(5)(C)-(D), would allow separate annual penalties,
the six-year limitations period would have restricted the
government’s recovery to two or maybe three years. See 31
U.S.C. § 5321(b)(1). In addition, the government would have
had to prove that Warner’s violations were willful. Id.§ 5321(a)(5)(C). Moreover, if $53.6 million were insufficient,
the government could have insisted on more before entering
into the plea agreement.
The government points out, citing Gall, that “custodial
sentences are qualitatively more severe than probationary
sentences of equivalent terms.” 552 U.S. at 48. That is true,
and in that sense incarceration sends a stronger message
than probation does. But § 3553(a) does not command courts
to send the strongest message possible; it commands them to
impose a sentence that is “sufficient, but not greater than nec-
essary” in the circumstances of each case. 18 U.S.C. § 3553(a)
(emphasis added). The district court concluded that in
Warner’s case a probationary sentence met that standard.
That conclusion was reasonable.
3. General Deterrence
Another important goal of sentencing is “to afford ade-
quate [general] deterrence to criminal conduct.” 18 U.S.C.
§ 3553(a)(2)(B). White collar criminals seem like “prime can-
24 No. 14-1330
didates for general deterrence,” United States v. Peppel, 707
F.3d 627, 637 (6th Cir. 2013), because they (presumably) act
rationally, calculating and comparing the risks and the re-
wards before deciding whether to engage in criminal activi-
ty. The guidelines thus make “deterring others from violat-
ing the tax laws … a primary consideration.” USSG § 2T1.1,
intro. cmt. And they seek to increase the proportion of of-
fenders who receive prison sentences above pre-guidelines
levels. See USSG § 2T1.1, cmt. (background). Although the
guidelines’ policies are not controlling, see United States v.
Bonner, 440 F.3d 414, 417 (7th Cir. 2006), we have no quarrel
with the general proposition that effective deterrence of tax
crimes requires a credible threat of imprisonment. Cf. United
States v. Heffernan, 43 F.3d 1144, 1149 (7th Cir. 1994) (recog-
nizing the need for significant penalties to compensate for
the rewards and difficulty of detecting economic crimes). But
that does not necessitate imprisonment in every case.
While incarcerating Warner undoubtedly would have
sent a stronger message, the message sent by his existing sen-
tence is, in our view, strong enough to satisfy § 3553(a)(2)(B).
We reach this conclusion for two reasons. First, the veteran
district judge found Warner to be one of a kind. Almost by
definition, very few defendants will make that kind of im-
pression on a sentencing judge. So Warner’s sentence tells
others very little, if anything, about what treatment they
would receive for a similar crime. In particular, other, more
typical defendants should take no comfort in the fact that
Warner avoided imprisonment.
Second, even without a prison sentence, Warner’s pay-
ment of a $53.6 million penalty already provides a measure
of deterrence. See United States v. Sklena, 692 F.3d 725, 732
No. 14-1330 25
(7th Cir. 2012) (recognizing that a large civil penalty can
have a “deterrent effect … similar to that of a criminal sen-
tence”). From an economic point of view, deterrence is suffi-
cient when the penalty for a crime multiplied by the proba-
bility of apprehension equals the harm done—in this case,
the taxes evaded. See DirecTV, Inc. v. Barczewski, 604 F.3d
1004, 1010 (7th Cir. 2010) (citing Gary S. Becker, Crime and
Punishment: An Economic Approach, 76 J. Pol. Econ. 169
(1968)); United States v. Rogan, 517 F.3d 449, 454 (7th Cir.
2008) (citing A. Mitchell Polinsky and Steven Shavell, Puni-
tive Damages: An Economic Analysis, 111 Harv. L. Rev. 869(1998)). If the prospect and severity of punishment are high
enough, then the risks of tax evasion exceed the rewards,
and so would-be offenders will refrain (at least in theory).
Warner’s FBAR penalty was nearly ten times the size of
the tax loss he caused (not accounting for interest). The miss-
ing variable is the probability of apprehending the offshore
tax-evader. Even without that figure, though, it is reasonable
to think, as the district court did, that a tenfold penalty is
sufficient in Warner’s case. Congress apparently intended
FBAR penalties to have a deterrent effect, see 31 U.S.C.
§ 5321(a)(5)(C), and it has employed multiples lower than
ten to stem other types of economic harm, see, e.g., 15 U.S.C.
§ 15(a) (authorizing treble damages for antitrust violations);
18 U.S.C. § 1964(c) (treble damages for RICO violations); 31
U.S.C. § 3729(a)(1) (treble damages for False Claims Act vio-
lations). The fact that Warner’s penalty was only 3% of his
net worth does not, as the government contends, blunt its
deterrent force. For “[t]he wrongdoer’s wealth plays no role”
in the economic approach to deterrence outlined above. Di-
recTV, 604 F.3d at 1010.
26 No. 14-1330
The government points to United States v. Engle, where
the Fourth Circuit, citing the guidelines’ view that deterrence
requires a real risk of incarceration, vacated a probationary
sentence for tax evasion. 592 F.3d 495, 502 (4th Cir. 2010).
Engle, however, was at best a “’mine-run’ tax-evasion case.”
Id. at 503. The defendant there, unlike Warner, did not pay a
large penalty or possess unique characteristics that could
justify a low sentence. On the contrary, the facts in Engle
“could perhaps be viewed as warranting an above-Guidelines
sentence,” id. at 503 (emphasis added), which no one sug-
gests would have been appropriate here.
Finally, the government takes issue with the district
court’s statement that Warner’s highly publicized prosecu-
tion and attendant humiliation provided some deterrence.
The government argues that humiliation is a normal conse-
quence of a fraud conviction. While Warner’s prosecution
has been more public than most, we agree that this fact de-
serves little, if any, weight. See Repking, 467 F.3d at 1096. But
as we read the transcript, Warner’s humiliation played no
significant role in the court’s sentencing determination. And
in any event his sentence would stand without it.
4. Sentencing Disparities
The government’s final contention is that Warner’s sen-
tence creates “unwarranted sentence disparities” in violation
of § 3553(a)(6). The government points to four former UBS
clients who received prison terms of a year and a day with
tax losses lower than Warner’s: Peter Troost (who evaded
approximately $1 million), Christopher Berg ($270,000), Fed-
erico Hernandez ($500,000), and Richard Werdiger
($400,000). The government insists that Warner should have
No. 14-1330 27
received a prison term at least as long as theirs. The district
court disagreed—again, because Warner is unique.
We uphold the district court’s conclusion. Section
3553(a)(6) forbids not all sentencing disparities but only
“unwarranted” ones “among defendants with similar rec-
ords who have been found guilty of similar conduct.” 18
U.S.C. § 3556(a)(6). Warner is not similar to the government’s
comparators. None of them offered evidence of significant
charity or otherwise impressed the district court with their
personal character, as Warner did. None of them, with the
exception of Werdiger, tried to enter the OVDP or paid an
FBAR penalty comparable to Warner’s. Two of them were
convicted on numerous counts: six in Werdiger’s case, five in
Hernandez’s. And in all four instances the government
sought a sentence within the advisory guidelines range. 4
These were “mine run” cases. Rita, 551 U.S. at 351. Warner’s
case is not.
Furthermore, probation is a common sentence in offshore
tax evasion cases. The evidence introduced below shows that
roughly half of the defendants convicted since 2008 have re-
ceived terms of probation rather than imprisonment. And, of
course, thousands more have avoided criminal prosecution
altogether by entering the OVDP. The government correctly
4 See United States v. Troost, No. 1:13-cr-00185 (N.D. Ill.), plea agreement
at 6, 11 (ECF No. 12), sent. hr’g tr. at 26-30 (ECF No. 23), judgment (ECF
No. 19); United States v. Berg, No. 5:12-cr-00877-LHK (N.D. Cal.), gov’t
sent. mem. at 3 (ECF No. 15), sent. hr’g tr. at 50-53 (ECF No. 27), judg-
ment (ECF No. 20); United States v. Hernandez, No. 1:10-cr-00334-DC
(S.D.N.Y.), gov’t sent. mem. (ECF No. 11), judgment (ECF No. 12); United
States v. Werdiger, No. 1:10-cr-00325-PGG (S.D.N.Y.), judgment (ECF No.
30), sent. hr’g tr. at 32, 45-55 (ECF No. 31).
28 No. 14-1330
emphasizes that the defendants sentenced to probation were
different from Warner: for example, they caused smaller tax
losses, and several of them gave more information to the
government. But they are at least as similar as the govern-
ment’s comparators. Paul Zabczuk, for example, tried to dis-
close his offshore account through the OVDP, was rejected,
and received three years’ probation despite the government’s
request for an 18-month prison sentence. And Igor Olenicoff
hid millions of dollars in offshore accounts, paid the IRS $52
million, and received two years’ probation based in part on
his “exemplary community service” and “humanitarian
causes.” 5 Both of them, however, caused much lower tax
losses than Warner.
Ultimately, these examples prove the district court’s
point: Warner is unique, and neither side’s comparisons are
very helpful. As a result, his sentence does not cause any
unwarranted disparities among similar defendants. And for
the same reason, it does not restrict the government’s ability
to obtain a prison sentence in other, more typical cases, even
where the tax loss at issue is less than Warner’s.
5. Choice of Sentence
The district court recognized that the various § 3553(a)
factors “run in different directions” and that it was up to the
court to “weigh … and balance them.” In the end, it con-
cluded that the mitigating factors outweighed the factors fa-
voring incarceration, so it sentenced Warner to probation.
5 See United States v. Zabczuk, No. 0:10-cr-60112-WPD (S.D. Fla.), sent.
hr’g tr. at 4, 9, 22-23 (ECF No. 35); United States v. Olenicoff, No. 8:07-cr-
00227-CJC (C.D. Cal.), plea agreement at 4-5 (ECF No. 11), sent. hr’g tr. at
4-6, 8-9, 23 (ECF No. 18).
No. 14-1330 29
None of the errors that have led us to upend other sen-
tences on substantive grounds are present here. In England,
for example, the district court’s sentence rested on a pur-
ported finding that the defendant would have attempted to
murder the witnesses against him had he not been in custo-
dy. 555 F.3d at 621-22. That was nothing more than specula-
tion, so we vacated the sentence. Id. at 623; see also United
States v. Bradley, 628 F.3d 394, 399 (7th Cir. 2010) (per curiam)
(where the judge assumed the defendant had committed
undiscovered crimes and would commit more if released).
Here, by contrast, the record amply supports the district
court’s factual findings.
We vacated the sentence in United States v. Roberson be-
cause of a legal error: the district court imposed a 1-month
sentence for bank robbery to avoid an 84-month statutory
minimum on a related firearm offense. 474 F.3d 432, 433-34
(7th Cir. 2007). A disagreement with Congress is not a valid
basis to give a lenient sentence. Id. at 434-35. No such im-
permissible considerations intruded into the court’s decision
here, however.
We have also occasionally vacated sentences that were
obviously unreasonable or arbitrary. In United States v. Gold-
berg, the district court gave a one-day sentence for child por-
nography based on “idiosyncratic penological views” that
placed nearly exclusive emphasis on rehabilitation, rather
than a “careful, impartial weighing of the statutory sentenc-
ing factors”; we reversed. 491 F.3d 668, 673-74 (7th Cir. 2007).
In Omole, the court gave a sentence 51 months below the
guidelines range, but that result “directly contradict[ed]” the
court’s finding that the defendant had “contempt for the
court” and “utter lack of feeling for other human beings.”
30 No. 14-1330
The court even told the defendant that “you’ve caught a
break that I’m not at all sure you deserve.” These contradic-
tions compelled us to reverse. 523 F.3d at 698-700. And in
Repking, which we discussed above, the court grossly over-
stated the impact of the defendant’s unspecified good works
and restitution payments. 467 F.3d at 1093, 1095-96.
By contrast, the district court’s rationale here rests on
specific facts about Warner rather than any peculiar penolog-
ical theory; it is fully consistent with the sentence imposed;
and the factors the court emphasized bear the weight it gave
them.
This case more closely resembles Wachowiak, where we
affirmed a below-guidelines prison sentence for receiving
and sharing child pornography based on mitigating facts
found by the district judge: the defendant never produced
any images, showed genuine remorse, and could count on
family support to help him through rehabilitation. In addi-
tion, like Warner, he had a clean record, “excellent” character
(evidenced by testimony and letters), and a low risk of recid-
ivism. 496 F.3d at 745-47. These factors were “particularized
to the individual circumstances of the case”—as were Warn-
er’s. Id. at 750. Even though we might have been harsher, we
concluded that the district court’s decision fell within the
range of reasonable sentences. Id. at 754-55.
The Supreme Court’s decision in Gall is also instructive.
The defendant there pled guilty to limited participation in an
ecstasy distribution ring. The district judge sentenced him to
three years’ probation, well below the guidelines range of 30-
37 months in prison. 552 U.S. at 41-45. The judge empha-
sized that the defendant had no significant criminal history,
had voluntarily withdrawn from the conspiracy, and was
No. 14-1330 31
“doing everything in his power to forge a new life.” Id. at 44.
Additionally, a “small flood” of letters attested to his good
character. Id. at 43. The Eighth Circuit thought the crime de-
manded a more serious sentence and reversed. The Supreme
Court disagreed, holding that “the Court of Appeals should
have given due deference to the District Court’s reasoned
and reasonable decision that the § 3553(a) factors, on the
whole, justified the sentence.” Id. at 59-60.
Due deference leads us to the same conclusion here. Con-
sidering (1) Warner’s excellent character, as shown by his
long history of charity and kindness to others; (2) the isolat-
ed and uncharacteristic nature of his tax evasion; (3) his at-
tempt to enter the OVDP; (4) his guilty plea and prompt
payment of his liabilities; (5) his $53.6 million FBAR penalty,
which is nearly ten times the tax loss; and (6) the fact that the
government charged him with only one count and itself
sought a well-below-guidelines sentence, we conclude that
Warner’s probationary sentence is reasonable.
III. CONCLUSION
Because the district court did not abuse its considerable
discretion, we AFFIRM Warner’s sentence.
32 No. 14-1330
FLAUM, Circuit Judge, concurring in the judgment.
I concur in the judgment and write separately to ex-
press my considerable unease with the outcome of this
appeal and the signal that it may send about how the
criminal justice system treats wealthy tax evaders. In my
view, Warner’s commendable charitable spirit does not
obviate the appropriateness of some period of incarcera-
tion. He purposely sought to deprive the federal gov-
ernment of millions of dollars of tax revenue simply to
amass more of his enormous wealth. As Judge Kocoras
put it, Warner’s acts “go[] to the essence of how we gov-
ern ourselves.” I agree wholeheartedly, and, therefore,
Warner’s non-custodial sentence—regardless of his phi-
lanthropy—causes me concern.
Nevertheless, we review the sentence imposed for an
abuse of discretion. And the deference we afford the sen-
tencing judge here must be informed by the leniency
with which the government approached Warner’s prose-
cution. Despite years of willful tax evasion, the govern-
ment chose to charge Warner with just one count. And
further, with a Sentencing Guidelines range of 46–57
months, the government recommended a relatively mod-
est period of incarceration (“in excess of a year and a
day”). For me, these two debatable acts of prosecutorial
discretion point toward an affirmance in this case, as they
provided a uniquely limiting context for the district
judge’s exceptional exercise of leniency. Without this
backdrop, I would be inclined to vacate the sentence im-
posed and remand for resentencing. However, in light of
a veteran jurist’s thoughtful and thorough consideration
of the case, I am compelled to conclude that Warner’s
No. 14-1330 33
sentence falls within a sentencing judge’s broad band of
discretion.