Most of the opinion, however, addressed the concern about district court's statement that the variance was justified in significant part by the opportunity the defendant might have to pay the restitution ordered by the court. That logic would say that defendants who can pay restitution should be sentenced to longer incarceration than one who cannot pay restitution. So, a defendant who is able to pay restitution by sentencing should be incarcerated but one who is unable to do so should not be sentenced (or not be sentenced as much). And, most practitioners encourage clients to pay restitution before or at sentencing to set the right tone for the judge to give a favorable sentence, but on the sentencing court's reasoning, that advice may be counterproductive. The Court of Appeals spoke to the issue:
If done without qualification, it is troubling to imply that a defendant who owes more restitution, and thus has inflicted more harm or engaged in more culpable conduct, would be more likely to receive a lower prison sentence. See United States v. Crisp, 454 F.3d 1285, 1291 (11th Cir. 2006) ("The more loss a defendant has caused, the greater will be the amount of restitution due, and the greater the incentive for a court that places the need for restitution above all else to shorten the sentence in order to increase the time for the defendant to earn money to pay restitution. Therefore, the more loss a criminal inflicts, the shorter his sentence. That approach cannot be deemed reasonable.").
Even crediting the District Court's concern about the repayment of restitution, it is unclear how the sentence of one day in prison facilitates the repayment of restitution in this case. Stango admitted in his sentencing hearing, through counsel, that "his work life is over" and that "[h]e is going to be living on . . . Social Security and the like for the rest of his life." App. 27. The District Court is required to explain its rationale for its sentence and answer colorable legal arguments on the other side; failure to do so can be procedural error. United States v. Kononchuk, 485 F.3d 199, 204 (3d Cir. 2007). Here, the District Court gave only brief explanations of its application of the § 3553(a) factors and failed to explain its extraordinary downward variance, and thus committed procedural error.Finally, although the Third Circuit had seemed to give the sentencing courts wide Booker discretion (United States v. Tomko, 562 F.3d 558 (3d Cir. 2009) (en banc), here), Stango, although nonprecedential, indicates that the exercise of discretion does need reasons.