In a prior blog we discussed The Sentencing Reform Act of 1984, and the resultant Guidelines Manual. In short, the Guidelines Manual is used to calculate the potential prison term for a criminal defendant by calculating an Offense Level (using a Baseline Offense Level and Offense Specific Factors) and comparing it with the specific defendant’s “Criminal History Category” in the Sentencing Table.
These guidelines, however, are not mandatory and the presiding judge has the ability to sentence a defendant to a prison term outside of the guideline range unless there is a mandatory minimum prison term in play. That said, there are some ways in which a judge, on its own accord or by motion from the Federal Government, is able to sentence a defendant to a prison term lower or higher than proscribed by the Sentencing Guidelines – these are generally referred to as “departures” or “variances.” The two terms seem similar, but the distinction is important. This blog, however, focuses on the most common types of “departures” in federal sentencing.
Departures in Federal Sentencing
A “departure” authorizes adjustments to a sentence outside of the sentencing guidelines and/or mandatory minimums. The two primary types of departures are found in Section 5K1.1 and 5K2.0 of the Guidelines Manual.
Downward Departures Section 5K1.1
Section 5k1.1 of the Guidelines Manual generally permits a downward departure when a defendant provides “substantial assistance” to authorities in the investigation of criminal activities or in the prosecution of another individual. This section requires that the Federal Government file a motion with the court “stating that the defendant has provided substantial assistance in the investigation or prosecution of another person who has committed an offense.” The court will ultimately determine the amount of the departure or reduction after considering several factors including:
- The significance and usefulness of the defendant’s assistance (including the Government’s evaluation of the assistance);
- The truthfulness, completeness, and reliability of any information provided;
- Extent of defendant’s assistance;
- Any injury suffered, or any danger or risk of injury to the defendant or his family resulting from his assistance; and
- The timeliness of the defendant’s assistance.
Importantly, substantial assistance allows a judge to sentence a defendant below an otherwise required mandatory minimum sentence. Defense counsel, however, must make sure that the Government files a motion under both Section 5K1.1 and 18 U.S.C. § 3553(e). This is extremely important – if the Government files a motion under Section 5K1.1 but fails to do so under 18 U.S.C. § 3553(e), the presiding judge has absolutely zero discretion to sentence a defendant below a mandatory minimum sentence. See Melendez v. United States, 518 U.S. 120 (1996).
Departures Under Section 5K2.0
Section 5K2.0 of the Guidelines Manual allows a “departure” if a court finds an aggravating or mitigating circumstance “of a kind, or to a degree, not adequately taken into consideration by the […] guidelines.” Essentially, Section 5K2.0 provides courts with a flexible sentencing framework in exceptional or “atypical” cases, which can result in either a downward or upward “departure.”
There are several factors a court can consider in assessing whether a departure is warranted, including but not limited to: 1) whether death or significant physical injury occurred; 2) whether there was a disruption of government functions; 3) defendant’s extraordinary mental and physical condition; 4) whether the defendant was under duress; and 5) the totality of the circumstances.
There are also factors that a court is expressly precluded from considering when determining whether a “departure” is warranted, including but not limited to: 1) a defendant’s race, sex, national origin, etc.; 2) a defendant’s lack of guidance as a youth; and 3) a defendant’s physical condition, including drug or alcohol abuse. Note, however, that while these factors cannot be used to determine whether a “departure” is warranted, they may very well be considered when determining whether a “variance” is warranted.
How an Experienced Federal Defense Attorney Can Help
Is important to have an attorney who understands the nuances of federal sentencing and is able to seize every opportunity for a downward departure in the event of a conviction or guilty plea. There are a multitude of factors that judges will consider when determining an appropriate sentence, and you should have an experienced attorney standing with you during this phase but also someone who can understand you and your story in order to adequately present it to the judge.