Notable split decisions from Third Circuit in government appeals of probationary sentences

I suspect that everyone interested in federal sentencing jurisprudence will find something they like and something they don’t like in two big rulings today from the Third Circuit.  Here are basics of the two  decisions, drawn from their openning paragraphs:

US v. Howe, No. 07-1404 (3d Cir. Sept. 18, 2008) (available here):

In this appeal we review the sentence imposed on a defendant who was convicted of two counts of wire fraud.  The sentence consisted of two years’ probation (including three months’ home confinement), despite an advisory Sentencing Guidelines range of 18 to 24 months’ imprisonment.  The District Court imposed no fine and no forfeiture (other than the special assessment of $200).  The Government appeals from the District Court’s judgment of sentence.  We will affirm.

US v. Levinson, No. 07-1544 (3d Cir. Sept. 18, 2008) (available here):

Adam Levinson pleaded guilty to one count of wire fraud, in violation of 18 U.S.C. § 1343, and one count of filing a false income tax return, in violation of 26 U.S.C. § 7206(1). During his sentencing hearing, the United States District Court for the District of Delaware granted him a variance from the recommended United States Sentencing Guidelines (“Guidelines”) range of 24 to 30 months of imprisonment and sentenced him to two concurrent 24-month terms of probation, in addition to supervised release, restitution, and a special assessment. The government appeals and argues that the District Court failed to adequately explain the chosen sentence. We agree and will vacate Levinson’s sentence and remand for resentencing.