Downward Departures

Downward Departures From the Federal Sentencing Guidelines

The United States has a complex federal sentencing system that aims to ensure fair and consistent punishment for those convicted of crimes.

This system is governed by the United States Sentencing Commission, which establishes guidelines for judges to follow when determining appropriate sentences for federal offenders.

A downward departure is a sentence lower than what is suggested by the sentencing guidelines.

However, there are times when the judge may realize, or be persuaded, that the minimum federal sentencing in a particular case doesn't serve the cause of justice. In such cases, the judge may grant a motion for a downward departure in handing down the sentence.

In federal court, most cases end in a guilty plea or conviction.  Thus, sentencing becomes the biggest hurdle. However, there was a time when federal judges were constrained to sentence defendants to a range set out by the United States Sentencing Commission.

However, sentences are no longer required to fall into the “guidelines range,” but judges still use them as a starting point.  The primary principle in federal sentences is that they should be sufficient but not greater than necessary. Your federal criminal defense attorney should often ask for a downward departure or a variance from the guidelines sentence. 

Our law firm always files a sentencing memorandum before the sentencing hearing in federal court because it gives us an opportunity to persuade the judge before the hearing begins.  The Assistant United States Attorney (AUSA) will file one for the prosecution.

This memorandum often sets the tone for a sentencing hearing. However, requesting a downward departure takes time and research because the federal sentencing guidelines are complex. Usually, there are disagreements about the applicability of a proposed departure. 

The federal probation department will also contribute to the process and calculate its guidelines for the judge. Let's discuss this concept and when it may apply in a federal criminal case.

What is Downward Departure?

The federal sentencing guidelines are designed to help judges determine appropriate sentences based on the severity of the crime and the offender's criminal history.

However, unless the crime carries a mandatory minimum sentence, these guidelines are advisory—which means judges have the discretion to impose sentences outside of the recommended range in some instances.

Downward departure refers to a situation where a judge imposes a sentence below the guideline range due to specific mitigating factors. This process allows for greater flexibility in sentencing and acknowledges that each case is unique and that the guidelines do not adequately address all circumstances.

What Are the Reasons for Downward Departures?

There are several reasons a judge might consider granting a downward departure. Some of these reasons are discussed below. 

Criminal History 

The sentencing guidelines allow for a downward departure if reliable information shows that the defendant's criminal history category substantially over-represents the seriousness of their criminal history or the likelihood that they will commit other crimes.

There are several reasons for downward departures.

Substantial Assistance to Authorities 

When a defendant provides significant assistance to law enforcement or prosecutors in the investigation or prosecution of other individuals involved in criminal activity, they may be eligible for a downward departure.

To incentivize cooperation, the guidelines provide for significant downward departures upon the filing of a motion by the government under seal to protect the defendant.

Minor Role in the Crime

If a defendant was less culpable than other participants in the offense and did not play a major role in its commission, the judge may consider this and grant a downward departure.

Age, Physical or Mental Condition

In cases where the defendant has a serious physical or mental condition (diminished capacity) that would make imprisonment excessively harsh or where proper treatment may not be available, a judge may consider a downward departure.

Likewise, in cases where the defendant is elderly, and incarceration would prevent reasonable care, the judge may grant a downward departure called a variance, allowing for special circumstances, such as home confinement.

Extraordinary Family Circumstances

If incarceration of the defendant would cause unacceptable risk and hardship to dependents under their care, such as children or elderly parents, and alternate options for care aren't available, the judge may consider a downward departure.

Other Mitigating Factors

There are other circumstances where a judge may deem a downward departure appropriate, including, but not limited to, the following:

• Accepting responsibility: If the defendant demonstrates genuine remorse for their actions and accepts responsibility for the crime.
• Voluntary disclosure: If the defendant voluntarily disclosed the crime to the authorities.
• Under duress: If the defendant committed the crime under duress or coercion.
• Defendant's history of good works or charitable efforts.
• The totality of the circumstances calls for a downward departure.

Can Downward Departure Be Utilized to Reduce Mandatory Minimum Sentences?

No. By nature of the law, judges don't have the discretion to depart downward in cases where mandatory minimum sentences are imposed. However, in some instances, judges may be able to utilize an exception called the "safety valve."

This allows certain first-time, non-violent offenders who meet specific criteria, such as minimal criminal history and cooperation with authorities, to avoid the mandatory minimum sentence and receive a sentence below the guideline range.

Likewise, if a defendant offers substantial assistance to the government in investigating and prosecuting other crimes, federal prosecutors can recommend sentences below the mandatory minimum.

What is the Process of Downward Departure?

Filing a Motion for Departure 

A defendant or their attorney must file a motion with the court to request a downward departure. This motion should clearly outline the reasons for seeking a departure and provide supporting evidence. In most cases, the judge will not depart from the sentencing guidelines unless a motion is filed.

A motion must be filed for a downward departure.

Presenting Evidence and Arguments

During the sentencing hearing, the defense and prosecution will present arguments and evidence for and against the departure. This may include witness testimony, expert opinions, and documentation that supports the defendant's claim for a downward departure.

The Judge's Decision

After considering the evidence and arguments presented, the judge will decide whether to grant the downward departure. If the judge agrees that the mitigating factors warrant a departure, they will impose a sentence below the guideline range. If not, the judge will impose a sentence within the guidelines.

Impact of Downward Departure on Sentencing

Downward departures can significantly reduce the length of a defendant's sentence, providing them with an opportunity for rehabilitation and reintegration into society.

This process acknowledges that a one-size-fits-all approach to sentencing may not always be appropriate and that individual circumstances should be considered. For this reason, in many cases, experienced defense attorneys use downward departure to get reduced penalties for their clients.

Contact our law firm for legal guidance.

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

Suppose you have been charged with a federal crime. In that case, you must retain an attorney who knows how to effectively negotiate with the court to ensure the judge considers all circumstances at sentencing.

The opportunities for advocacy based on the guidelines and numerous departure provisions are substantial. Many departures cannot simply be applied mechanically; instead, they require an assessment of the facts and law related to the particular defendant's case. 

After the judge considers the guidelines sentence and any departure requests, they will also consider variance requests.  There can be both a departure and variance in the same case. The judge could consider almost anything when deciding whether to grant a variance from the guidelines sentence.

You can contact our law firm for an initial case evaluation by phone or through the contact form. We provide legal representation for federal criminal matters across the United States. Eisner Gorin LLP is located in Los Angeles, California.