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Downward Departures

Downward Departures from the Federal Sentencing Guidelines

As discussed in our general article on federal sentencing guidelines, the United States Sentencing Guidelines matches a total offense level with a criminal history category for a given defendant to arrive at an advisory guidelines sentencing range in the form of months in federal prison.

This calculation then becomes the starting point for sentencing in a federal criminal case.  The guidelines contain numerous provisions which allow for “downward departures” from the advisory guidelines range.

Downward Departures from the Federal Sentencing Guidelines

In 1987 Congress passed sentencing guidelines that established the minimum and maximum punishments that convicted defendants should receive for federal crimes. These guidelines take into account the severity of the federal crime and defendant's prior criminal record to calculate come a suggested sentence.

However, there are certain factors that allow a federal judge to make a “downward departure” from the suggested minimum sentence for a federal criminal offense.

A downward departure is when the federal judge imposes a defendant a sentence that is lower than the minimum sentence that was suggested by the sentencing guidelines. The judge can grant a motion for a downward departure by either the federal prosecutor or criminal defense lawyer prosecuting or defense attorney if the judge determines that justice demands it.

While there are many different reasons a judge would give a defendant a downward departure in a sentence, a common reason includes a situation where the defendant offered substantial assistance to the government in the criminal investigation of a crime.

While the list of possible departures, both to benefit of the defendant and to the detriment of the defendant, is extensive under the guidelines manual, we will discuss several examples which will give the reader a sense of the types of considerations which warrant departures in federal sentencing.

In order to give readers a better understanding of sentencing hearings and downward departures, our federal criminal defense attorneys are providing a detailed review below.

Federal Drug Case Downward Departure Example

Again, the applicability or not of these departures is a matter of discretion which necessitates effective advocacy by the parties.

Even if the judge is persuaded that a particular departure should apply under the guidelines, they still enjoy substantial discretion to vary from the guidelines completely in an appropriate case based on equitable considerations such as the factors set forth in Title 18 of the United States Code, Section 3553(a).

In a drug case, a downward departure is available where the government sets up a reverse sting. This means the government is selling drugs purportedly – and sets a price for the drugs which is substantially below market.

The effect of which being that the defendant purchases significantly more drugs than their resources would have allowed but for the government's artificial price reduction.

Because sentencing often depends on quantity of drugs purchased in drug cases, the defendant would be exposed to a higher than normal sentence based on the government's actions. The guidelines recognize the inequity of this outcome, and provide for a downward departure.

Also in the drug context, the guidelines provide a downward departure in cases of transportation where the transportation was not for pecuniary gain.

This means the defendant was transporting the drugs for a reason other than making money, i.e. for their own personal use. A downward departure from the normal guidelines range is appropriate in this case.

Defendant Played a Minor Role in the Crime

Another common departure is based on the defendant's relative role in the offense compared to other co-conspirators or participants.  Federal criminal prosecutions often involve cases with multiple defendants.

While legally, all participants to a criminal enterprise are equally guilty, equity dictates that those who play minor, or especially minimal roles, should receive lower sentences.

Conversely, those who supervise or manage a criminal scheme should receive higher sentences. The guidelines recognize this reality and provide for departures based on the relative role played by each individual defendant in the offense.

Defendant's Age and Family Status

The guidelines also provide for variances, a related but distinct concept from a departure, based on specific characteristics of the defendant such as age and family status.

For very elderly defendants, a variance may be available. Variance may also be appropriate in relatively minor crimes where the effect of incarceration on the defendant's dependents such as small children or elderly parents will be significant and negative.

Substantial Assistance in Criminal Investigation

As stated above, one major area of departure from the guidelines exists in the case of substantial assistance to authorities, otherwise known as cooperating with the government.

Defendants who cooperate with law enforcement either before or after their arrest often do so at great personal peril. To incentivize this cooperation, the guidelines provide for significant downward departures upon the filing of a motion by the government, under seal to protect the defendant.

Also, to protect the integrity of the law enforcement investigation resulting from the defendant's cooperation, which informs the court of the defendant's substantial assistance to authorities.

The parties often differ on the extent to which the defendant should benefit from their cooperation efforts. However, all parties generally agree that a defendant who cooperates early and provides useful information while assuming risk to himself from co-defendants or others should receive a significant sentencing benefit.

It should be noted that this benefit is not immunity. The defendant will still be convicted and face sentencing before a federal judge. However, the court will consider the guidelines' downward departure provisions in consideration of the defendant's decision to cooperate.

Other Reasons for a Downward Departure

In additional to reasons listed above, some other reasons a judge would give a defendant a downward departure in a sentence include:

  • Defendant voluntarily disclosed the federal offense
  • Defendant accepted responsibility for the crime
  • Defendant was coerced or under duress when they committed the crime
  • Defendant's history of good works or charitable efforts
  • The totality of the circumstances calls for a downward departure

Consult with a Federal Criminal lawyer

Federal criminal offenses are serious life-altering issues. If you have been charged with a federal crime, you need to retain a lawyer who knows of to effectively negotiate with the court to ensure the judge considers all circumstances at sentencing.

The opportunities for advocacy based on the guidelines' numerous departure provisions are substantial. Many of these departures cannot simply be applied mechanically. They require a holistic assessment of the facts and law related to the particular defendant's case.

If you or a family member is facing federal sentencing and could benefit from experienced federal criminal defense counsel in fashioning the most effective possible sentencing presentation, contact our office for an initial consultation.

Eisner Gorin LLP is a top-rated criminal defense law firm representing clients across the United States who are facing any type of federal offense. We are located at 1875 Century Park E #705, Los Angeles, CA 90067. Contact our firm to review your case at 877-781-1570.

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