Young Park was convicted of filing a false corporate tax return thereby causing a tax loss of $133,601. Park wasn’t a babe in the woods, however, as he had a prior fraud conviction for executing a Ponzi scheme that caused a 7 million dollar loss for which he served a year and a day in federal prison in 1999. When Park appeared for sentencing on October 11, 2013, Judge Block, the sentencing judge, indicated he was inclined to send Park to prison, after all, his sentencing range was 15-21 months. However, Judge Block instead put Park on probation because of the “economic problems” caused by the government shut-down. Can you say “SEQUESTER!” The government was not still “shut-down” so it appealed.

The Second Circuit reversed and concluded that Judge Block committed procedural error in imposing a term of probation in lieu of imprisonment for two reasons. First, the only sentencing factor Judge Block deemed relevant was the cost of incarceration to the government and the economic problems allegedly caused by the government shut‐down. As Judge Block clearly stated: “I am not going to put him in jail only because of the economic plight that we are facing today.” After emphasizing that his sentencing decision was based solely upon this consideration, Judge Block rebuffed defense counsel’s suggestion to “supplement the record,” asserting, “[i]f we have to resentence him, we will later.” Judge Block also stated that if the Court of Appeals were to reverse, he would “consider all of these factors” at resentencing, clearly indicating that he did not consider the relevant factors in the first instance. Second, and equally problematic, is that the cost of incarceration to the government—Judge Block’s sole justification for imposing a term of probation rather than incarceration — is not a relevant sentencing factor under the applicable statutes. In short, the plain language of § 3553(a) cannot be read to permit the consideration of the cost of incarceration as a permissible sentencing factor.

Looks like Judge Block got his wish—he’ll get to consider all of the §3553(a) factors at Park’s resentencing.