Tom v. United States - Response (Grant/Vacate/Remand)

No. 07-678

In the Supreme Court of the United States

MICHAEL K.C. TOM, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

MEMORANDUM FOR THE UNITED STATES

PAUL D. CLEMENT
Solicitor General
Counsel of Record
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

In the Supreme Court of the United States

No. 07-678

MICHAEL K.C. TOM, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

MEMORANDUM FOR THE UNITED STATES

Petitioner contends that the court of appeals errone ously applied a proportionality principle in reviewing his below-Guidelines sentence for reasonableness. In Gall v. United States, No. 06-7949 (Dec. 10, 2007), slip op. 8, this Court held that "appellate courts may * * * take the de gree of variance into account and consider the extent of deviation from the Guidelines," but it rejected "an appellate rule that requires 'extraordinary' circumstances to justify a sentence outside the Guidelines range" and "the use of a rigid mathematical formula that uses the percentage of a departure as the standard for determining the strength of the justifications required for a specific sentence." Accord ingly, the appropriate disposition is to grant certiorari, va

cate the judgment of the court of appeals, and remand the case for further consideration in light of Gall.1

PAUL D. CLEMENT
Solicitor General

DECEMBER 2007

1 The government waives any further response to the petition unless this Court requests otherwise.