Downward Departure

What is a Downward Departure from the Federal Sentencing Guidelines?

Under federal laws, if a criminal defendant is convicted, a complex sentencing system regulated by the United States Sentencing Commission focuses on fair and consistent penalties.  

In fact, the Sentencing Commission sets the guidelines for federal judges to determine appropriate sentences. Still, there are situations when a judge might be persuaded that the federal guidelines in a case do not serve justice.

The federal judge might grant a motion for a “downward departure” in the sentence when this occurs. Most criminal cases are resolved in federal courtrooms, such as those in the Central District of California, through a guilty plea by the defendant or a condition by the jury.

This means sentencing is the next crucial step in the federal criminal justice system. Notably, federal sentences are no longer required to fall into the guidelines range but are still used as a starting point.  The guiding principle in federal sentencing is that they should be sufficient but not greater than necessary.

In appropriate cases, your federal defense attorney should ask the judge for a downward departure or a variance from the guidelines sentence.  We can file a sentencing memorandum in federal court before the sentencing hearing. Likewise, the AUSA will file one for the prosecution. The sentencing memo will establish the environment in the courtroom for sentencing a defendant.

Notably, requesting a downward departure takes substantial time and extensive research because the federal sentencing guidelines are complex.

Further, there are typically disagreements between the defense lawyer and federal prosecutor about the applicability of a proposed departure.  Additionally, the federal probation department will investigate the defendant, contribute to the process, and calculate its guidelines for the judge.

Downward Departure - Explained

The federal sentencing guidelines are designed to help federal judges determine an appropriate sentence for a criminal defendant based on the crime's severity and criminal history.

Downward Departure from the Federal Sentencing Guidelines
A downward departure in federal sentencing is asking the judge for a lower sentence.

Notably, however, unless the federal offense calls for a mandatory minimum sentence, the guidelines are advisory. Thus, federal sentencing judges sometimes have broad discretion to impose sentences outside the recommended range.

Simply put, downward departure refers to a scenario when a judge imposes a sentence below the sentencing guideline range based on mitigating factors.

This process allows for some flexibility in sentencing. It recognizes that every case is unique and that the sentencing guidelines can't always mechanically address all the circumstances in a criminal case.

Thus, downward departures could be granted for any of the following mitigation factors:

  • Lack of criminal history;
  • History of good works by the defendant;
  • Substantial assistance to the government;
  • Defendant played a minor role in the crime;
  • Physical or mental condition;
  • Family circumstances;
  • Acceptance of responsibility;
  • Voluntary disclosure;
  • Coercion or duress;
  • The totality of the circumstances;

Let's take a closer look below by discussing the reasons for downward departures.

What Are the Reasons for a Downward Departure?

Federal District Court sentencing judges consider several reasons for granting a downward departure, such as the following:

  • Criminal history: The sentencing guidelines allow for a downward departure if the defendant's criminal history category over-represents the seriousness of their criminal history or chances of committing other crimes.
  • Substantial assistance: When a defendant assists federal law enforcement or prosecutors in the investigation, they might be eligible for a downward departure. This is to incentivize cooperation. The government must file a motion to seal to protect the defendant.
  • Minor role in the crime: Supposeadefendant was less culpable than others in committing the offense. In other words, they did not play a significant role. The judge may consider this and grant a downward departure.
  • Age, physical or mental condition: Suppose the defendant has a physical or psychological condition called “diminished capacity,” making prison time excessively harsh. Also, suppose they are elderly and incarceration could prevent medical care. The judge may consider a downward departure or a variance allowing for special circumstances, like home confinement.
  • Extraordinary family circumstances: Suppose incarceration would cause a high risk and hardship to dependents, such as the defendant's children or elderly parents. The judge may consider a downward departure.
  • Accepting responsibility:  Suppose a defendant demonstrates genuine remorse for their criminal behavior and accepts responsibility for the crime. In that case, the judge could ay consider a downward departure.
  • Voluntary disclosure: A downward departure might be considered if the defendant voluntarily disclosed the crime to the authorities.
  • Under duress: If it can be proven that a defendant committed the crime under duress or coercion, a judge might consider a downward departure.
  • History of good works or charitable efforts: if the defendant has a positive history of good works in the community, a departure might be allowed;
  • The totality of the circumstances calls for a downward departure.

If you only had minimal participation in the criminal conduct, then you may be eligible for a 4-level decrease. If you were a minor participant in the illegal activity, you might qualify for a 2-level reduction. In other cases, you may be eligible for a 3-level decrease.

What About Mandatory Minimum Sentences?

Suppose your federal case calls for a mandatory minimum sentence. In that case, a judge does not have the discretion to depart downward in sentencing, but they may be able to utilize a safety valve.

For example, suppose a criminal defendant is a first-time, non-violent offender with a clean criminal history, cooperates with federal authorities, or offered substantial assistance to the government in investigating other crimes to avoid a mandatory minimum sentence. In that case, they may be able to receive a sentence below the guideline range.

What is the Court Process for a Downward Departure?

The court process for seeking a downward in a federal court has a few basic steps, including the following:

  • Filing a motion for departure: A defense lawyer has to file a motion with the court to request a downward departure that outlines reasons for seeking a departure and provides supporting evidence.
  • Present evidence and make arguments: During the sentencing hearing, the defense attorney and the federal prosecutor will make verbal arguments and present for and against the departure. This often includes witness testimony, expert opinions, and documentation.
  • Judge's decision: Once the arguments and showing evidence has been completed, the judge will decide whether to grant or deny the downward departure. They will impose a sentence below the guideline range if they grant the motion. If denied, they will set a sentence within the sentencing guidelines.

What is the Impact of Downward Departure on Sentencing?

A downward departure could significantly reduce the sentence length for a convicted defendant and might even give them an opportunity for rehabilitation.

Impact of Downward Departure on Sentencing
Contact our federal defense lawyers for help.

Notably, a downward departure in federal sentencing acknowledges that a cookie-cutter approach to sentencing is not always appropriate based on the circumstances. Simply put, a downward departure is an effort to get reduced penalties.

Suppose a federal judge has been persuaded that a departure should apply under the guidelines. In that case, they still have broad discretion to vary from the guidelines based on equitable considerations such as the factors listed in 18 U.S. Code 3553(a) imposition of a sentence.

If you were convicted of a federal offense, you need a lawyer who knows how to negotiate for a downward departure, as the opportunities are significant. Departures will require an assessment of all the mitigating factors. We offer a free case evaluation by phone or via the contact form. The Hedding Law Firm has offices in Los Angeles, CA.

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