Downward Departure in Federal Sentencing
If you are being charged with a federal crime and are facing a possible sentence to prison, you may qualify for a downward departure. A downward departure is a request made by a motion ( § 5K2 motion) asking the Judge to modify the sentencing downward (lower than statutory required minimum sentencing according to sentencing guidelines). The decision is within the Judge’s discretion.
There are some requirements to determine whether you are qualified for a downward departure. Our federal defense attorneys are here to help you and lay out all your options for you. Situations where downward departures are granted:
Acceptance of responsibility: You may be eligible for a downward departure for acceptance of responsibility. This applies only if the offense was disclosed before the discovery of such offense, and if such offense was unlikely to have been discovered.
Victim’s Conduct: if the victim’s conduct contributed significantly to provoke defendant’s offensive behavior, the court may reduce the sentence, granting a downward departure. There are numerous factors the court considers such as size and strength of victim, danger perceived by and actually perceived by defendant, the reasonableness of defendant’s response.
Lesser Harms:Sometimes a defendant may have committed a crime to avoid a greater harm, and in this case, a reduced sentence ma be warranted if society’s interest in punishing the conduct is significantly diminished.
Coercion and Duress: If the defendant acted as a result of coercion, duress, or blackmail, and these things, because of the specific facts of the case, do not amount to a complete defense, then the court may grant a downward departure. (Applies only when threat of physical injury or substantial damage to property is involved).
Diminished capacity: A number of circuits have held that psychological conditions that affect a defendant’s self control may justify a downward departure for reduced mental capacity when the diminished capacity was directly responsible for the offense conduct.
The United States Court of Appeals for the Sixth Circuit has affirmed a departure for a compulsive gambling disorder if it motivated the alleged offense.
(United States v. Sadolsky, 234 F.3d 938 (6th Cir. 2000), the defendant embezzled $30,000 from his employer to satisfy gambling debts. The district court found that the defendant lacked the ability to control his behavior and, therefore, satisfied the requirements for a departure based on diminished capacity.
In summary, downward departure forensic examinations require an extensive reflection of psychiatric, psychosocial, and medical factors and their impact on the defendant. Additionally, a knowing and voluntary admission of responsibility, the defendant’s immaturity, defendant’s minor role in the crime, defendant’s mental disorder that reduces capacity to appreciate the conduct’s criminal nature, are adequate justifications for a downward departure.
Your Criminal History May Warrant a Downward Departure
There are instances where a downward departure may be warranted if reliable information from reliable sources indicate that your criminal history category substantially over represents the seriousness of your criminal history or even the likelihood that you would commit such crimes.
For example, if you have had two misdemeanors 10 years prior to the instant offense and no other prior criminal behavior, that can be a mitigating factor as to sentencing for the present offense.
As your federal lawyer, we fight on your behalf to get you the minimal penalties possible. If you are a first time offender this departure will not apply according to United States v. Atondo-Santos , 385 F.3d 1199 (9th Cir. 2004), which held that a downward departure under the sentencing guidelines based on first time offender status is not warranted because the guidelines already take that factor into account.
As your attorney, we will provide to the court specific reasons why the applicable criminal history category substantially over represents the seriousness of your criminal history or the likelihood that you will commit other crimes.
Downward Departure – Role in the Offense
Your role in the offense may be a mitigating factor to get you a lower sentence. Depending on what role you as the defendant took in a criminal offense, our Los Angeles Federal Defense Attorneys may be able to get you the minimum sentence for the offense you are being charged with.
If you only had a minimal participation in the criminal conduct then you may be eligible for a 4 level decrease. If you were a minor participant in the criminal activity you may be eligible for a 2 level decrease. In cases falling between (a) and (b), you may be eligible for a 3 level decrease.
In the case of U.S. v. Koczuk, 166 F.Supp.2d 757 (ED.N.Y.2001), the District Court held that a downward departure was warranted on the basis of minimal role and minimal participation in the criminal conduct. The defendant’s rehabilitive efforts, combined with other factors, were also a basis for a downward departure. Defendant was being charged with five counts of importing caviar but convicted of only one count because defendant’s role in the conspiracy was minimal and bore little correlation with the $11 million operation of importing caviar. Defendant’s role was driver and interpreter. Therefore, due to his role in the offense, a downward departure was warranted.
Using your role in the offense as a mitigating factor has limited constitutionality, but something that the court still takes into consideration. That is where we step in as your Los Angeles Federal Criminal Defense Attorney and if applicable to you, prove to the court that the proposed sentence for the crime you are being charged with is unconscionable in ratio to your involvement in the crime.
In the case U.S. v. Booker, 543 U.S. 220, the court’s decision was that the Sixth Amendment right to jury trial requires that, other than a prior convictions, only facts admitted by a defendant or proved beyond a reasonable doubt to a jury can be used to determine a sentence. The maximum sentence a judge may impose is a sentence based upon the facts admitted by the defendant or proved to a jury beyond a reasonable doubt, ‘role in the offense’ being one of those facts admitted.
If you are facing sentencing for a federal crime, getting a lower sentence than what the court is trying to impose is our goal. Our federal defense lawyers aggressively fight on your behalf and we do everything we can to get you the best possible results.
Your role in the criminal conduct you are being charged for may have been so minor or possibly so insignificant that it would be unjust to impose anything above the mandatory minimum sentence. Do not waste any time and call the Hedding Law firm and set up a free face to face consultation and we will start discussing your case and preparing for your case!
There are some limitations and prohibitions that we will discuss with you further and let you know specifically if you would be eligible for a downward departure in regards to a present offense you may be facing. If you are being charged with a federal crime, contact our law firm and we will discuss all your options in order to get you the best possible results.