Randall Samborn, a spokesman for the U.S. Attorney's Office, explained that the filing is a "protective notice of appeal," meaning that it’s still awaiting Justice Department authorization to proceed with the appeal. The filing notice protects its appellate rights, he said.As noted, it is not uncommon for the Government to take protective appeals if the final decision has not been made to perfect the appeal.
Quoting Juliet Sorensen, clinical assistant professor of law at the Center for International Human Rights at Northwestern University’s law school and a former assistant U.S. attorney, the article reports:
It’s not a routine matter for the U.S. government to appeal a criminal sentence, she said.
"It considers each case individually," she said. "The Department of Justice tries to make a calculated judgment about cases that stand the best chance for the sentence to be found unreasonable by the court of appeals."As readers of this blog, sentencing judges now have considerable discretion to fashion a sentence they think appropriate under 18 USC 3553(a), here. This discretion is sometimes referred to as Booker discretion, named after the key case. United States v. Booker, 543 U.S. 220 (2005), here. Booker freed sentencings from the rigidity of the Sentencing Guidelines, here. Given the numbers involved in Warner's case, his guidelines range was substantial, hence in giving probation the sentencing judge gave a very large variance (variance is the Booker deviation from the Guidelines).
Courts rarely reverse the judge's exercise of Booker sentencing discretion. But this could be a case where it does.
I suspect that the Government will argue that the probation sentence in the case of a high profile bad actor just sends the wrong message, in addition to not being commensurate with the crime. In this regard, I quote from the Sentencing Guidelines 2T1, here.
The criminal tax laws are designed to protect the public interest in preserving the integrity of the nation's tax system. Criminal tax prosecutions serve to punish the violator and promote respect for the tax laws. Because of the limited number of criminal tax prosecutions relative to the estimated incidence of such violations, deterring others from violating the tax laws is a primary consideration underlying these guidelines. Recognition that the sentence for a criminal tax case will be commensurate with the gravity of the offense should act as a deterrent to would-be violators.For the prior post on the sentencing, see The Beanie Baby Man, The Tax Evader Adult Man, Ty Warner, Gets Probation! (Federal Tax Crimes Blog 1/14/14; Updated 1/18/14), here.