Departures and Variances: Two Routes Below the Guidelines.

In 2005, the Supreme Court of the United States decided United States v. Booker. This decision changed the nature of the U.S. Sentencing Guidelines from mandatory to advisory. This decision also led to a difference between a “departure” and a “variance” in federal sentencing.

Departure from Recommended Sentencing Guidelines Range

A departure occurs when a federal judge calculates a defendant’s sentencing guideline range and modifies this range under an authorizing provision of the Guidelines themselves. These authorized provisions can allow for a deviation either below or above the calculated advisory range, and the judge will typically state the reason(s) for the departure in a sentencing memorandum.

Variance from Recommended Sentencing Guidelines Range

A variance, on the other hand, allows a federal judge to deviate from a defendant’s recommended sentencing guideline range based on the statutory factors listed in 18 U.S.C. § 3553(a). While the Guidelines are advisory, 18 U.S.C. § 3553(a) continues to govern the calculation of all criminal sentences in federal court, and it grants judges the discretion to consider the nature of the offense, the defendant’s history and characteristics, and other factors before imposing a just sentence.

Judges are empowered to apply both a departure and a variance in any single sentencing case. An example of this would be the judge applying a departure provision in the federal guidelines in order to determine the advisory guideline range and then further deviating from the resulting range for additional reasons under 18 U.S.C. § 3553(a).

The Supreme Court decision in Booker stated its holding was grounded in the Sixth Amendment, protecting a defendant’s right to a jury trial. In order to calculate an initial recommended sentencing range, federal judges determine a defendant’s Offense Level (calculated by combining the base level of the charge(s) with applicable adjustments) and Criminal History Category (which assigns a defendant into one of six Categories, I through VI, based on prior criminal history points). The Sentencing Table is then used to convert the Offense Level and Criminal History Category into a period of time (measured in months).

What happens at a federal sentencing hearing, in what order?

There are four primary steps to a federal sentencing hearing: (i) calculating the Guidelines range, (ii) considering sentencing departures, (iii) evaluating sentencing variances, and, (iv) sentencing.

1. Calculating the Guidelines Range

Federal judges must calculate the Guidelines range as the initial step of sentencing. In order to do this, the court will use the information contained in the PSR provided by the federal probation agency in the sentencing court, and the parties to the case will resolve any objections to the PSR before fixing the defendant’s advisory sentencing range. The party filing the objection to the PSR will have the burden of proving the PSR’s calculation is incorrect, and the party opposing the objection will have the burden of proving that the PSR’s calculation is correct.

2. Considering Sentencing Departures

Next, federal judges will typically address sentencing departures. Federal sentencing departures may be requested on the initiative of the defendant, the government, or the court itself. In those circumstances, both the defendant and the government may generally present sentencing evidence (including documentary evidence or the testimony of sentencing witnesses) as necessary to either support or object to a sentencing departure. Even in the absence of a formal request for a sentencing departure, federal sentencing judges have the authority to consider sentencing departures on their own initiative. Federal Rule of Criminal Procedure 32(h) requires that the court provide the defendant with reasonable notice if it is considering a sentencing departure based upon its own initiative and grounds not raised by either party. Rule 32(h) also requires that the court afford the defendant the opportunity to respond.

3. Evaluating Sentencing Variances

Next, federal judges will evaluate sentencing variances. As with sentencing departures, both the defendant and the government may present sentencing evidence, call sentencing witnesses, and make requests for variances. While Rule 32(h) does not explicitly state that it applies to sentencing variances, the Supreme Court has held in Irizarry v. United States, 553 U.S. 708 (2008) that Rule 32(h)’s mandate does not require the same advance notice for variances as it requires for sentencing departures. Irizarry explicitly recognizes this distinction between a sentencing departure and a sentencing variance, even though the distinction can be subtle, and clarifies that the lack of advance notice under Rule 32(h) does not limit a sentencing judge’s ability to consider any sentencing variance evidence that comes before the court on the record during the sentencing hearing.

4. Sentencing

After the Guidelines range is determined, the applicable departures are considered, and the applicable variances are evaluated (in that order), the sentencing judge will enter the final sentence. If the sentencing judge imposes a sentence outside of the recommended sentencing guideline range, the judge must explain the court’s reasons for doing so on the record. The judge must also address any pertinent concerns that were raised by the defendant or the government during the sentencing proceedings.

Can a departure or variance go below a mandatory minimum?

Generally speaking, while federal judges have the authority to apply sentencing departures and sentencing variances to deviate from a defendant’s recommended sentencing guideline range, they do not have the authority to cross a mandatory minimum unless a specific exception applies. Under the U.S. Sentencing Guidelines, U.S.S.G. § 5C1.2 allows “qualifying” defendants to avoid mandatory minimum sentences in certain cases. A “qualifying” defendant for purposes of U.S.S.G. § 5C1.2 is one who meets the five safety-valve criteria of 18 U.S.C. § 3553(f); relief based on a government motion is governed separately by 18 U.S.C. § 3553(e) and U.S.S.G. § 5K1.1.

Safety-Valve Relief Under 18 U.S.C. § 3553(f)

Under 18 U.S.C. § 3553(f), otherwise known as “safety-valve,” a defendant who meets five statutory criteria can avoid mandatory minimum sentencing. One of the key factors that distinguish safety-valve relief from mandatory minimum relief under 18 U.S.C. § 3553(e) is that § 3553(f) does not require a government motion. This means that qualifying defendants can petition for safety-valve relief on their own accord.

The five safety-valve criteria under 18 U.S.C. § 3553(f) are: (i) the offense did not result in death or serious bodily injury; (ii) the defendant was not a leader, organizer, or manager of criminal activity; (iii) the defendant does not have more than 4 criminal history points (excluding any points from 1-point offenses), a prior 3-point offense, or a prior 2-point violent offense; (iv) the defendant did not knowingly possess a dangerous weapon during the commission of the offense; and (v) the defendant fully and truthfully disclose to the government the nature and scope of their involvement.

Mandatory Minimum Relief Under 18 U.S.C. § 3553(e)

Unlike safety-valve relief, mandatory minimum relief under 18 U.S.C. § 3553(e) requires the government’s motion to the court. Although, if the defendant is the subject of a government motion under 18 U.S.C. § 3553(e), the motion authorizes, but does not require, the court to impose a sentence below the statutory mandatory minimum, and any reduction must reflect the defendant's substantial assistance.

When seeking to avoid a mandatory minimum sentence, both the defendant and the government can engage the court’s discretion under either § 3553(f) or § 3553(e). The process for seeking these exceptions varies, however, as the defendant cannot seek § 3553(e) relief without the government’s prior consent. A defendant qualifies for safety-valve relief under § 3553(f) only by satisfying all five statutory criteria, including the criminal-history limits, which are measured in criminal history points and count state as well as federal convictions. Under Section 3553(f)(5), a defendant seeking safety-valve relief must truthfully and completely disclose any and all information which he has concerning the nature and scope of his involvement in the offenses in question by the time of sentencing.

Government Motion Under 18 U.S.C. § 3553(e) and U.S.S.G. § 5K1.1

When the government files a motion to the federal court under 18 U.S.C. § 3553(e) to void a defendant’s mandatory minimum sentencing, it is often due to a substantial-assistance departure (which falls under U.S.S.G. § 5K1.1). This is an example of how federal sentencing departures and variances are often used in conjunction. While a § 5K1.1 motion alone is not enough to cross a statutory minimum, a § 5K1.1 motion may be filed in support of a government motion to lower the sentencing minimum under 18 U.S.C. § 3553(e).

What facts can persuade a judge to impose less prison time?

Section 3553(a) of Title 18 requires federal sentencing judges to consider several factors. A key one is imposing a sentence that “is sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of this subsection.” This language, among others, provides significant discretion.

1. Nature and Characteristics of the Offense

Within section 3553(a), federal judges are required to consider the “nature and circumstances of the offense and the history and characteristics of the defendant.” This, again, provides judges with substantial discretion. For example, if a defendant was forced to participate in a criminal conspiracy with a gun pointed at them, it would be illustrative of the characteristics of the crime and the defendant’s characteristics. A lack of criminal history can also contribute toward a downward variance. However, the government can challenge these characteristics and a defendant can challenge the government’s characterization of certain characteristics as well.

Along with other characteristics, § 3553(a) requires the court to consider “the need for the sentence imposed to reflect: (i) the seriousness of the offense committed; (ii) the need for deterrence; (iii) the need to protect the public from further crimes; (iv) the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; and, (v) the need to provide rehabilitation to criminal offenders, if warranted by the nature of the offense, the characteristics of the defendant, and the circumstances in which the offense was committed.” This means the sentencing judge can consider any and all relevant factors, whether or not those factors are explicitly mentioned in the United States Sentencing Guidelines.

Sentencing judge’s policy disagreement with a specific guideline can also be used as grounds for an authorized downward variance. As with policy disagreements, if a particular sentencing judge finds a particular factor for a sentencing departure is discouraged, it may still be useable as grounds for an authorized downward variance under section 3553(a).

2. Post-Offense Rehabilitation

Under what circumstances can post-offense rehabilitation be considered at sentencing for a downward variance? This is the central question in this section. While the United States Sentencing Guidelines discourage considering rehabilitation at the sentencing stage, the Supreme Court of the United States recognizes that post-offense rehabilitation can be considered in some cases. For example, as a result of the offense, a defendant goes to college and begins to work seriously in his local community. While a judge will not grant a variance just because a defendant has gone to school, this can be evidence of the defendant’s willingness to change, which is a factor of post-offense rehabilitation.

In Tapia v. United States, 564 U.S. 319 (2011), the Supreme Court of the United States affirmed that “the Sentencing Reform Act precludes federal courts from imposing or lengthening a prison term to promote an offender's rehabilitation.”

If you are facing this situation, Spodek Law Group handles federal criminal defense matters nationwide, from offices in New York and Los Angeles.

What evidence proves a departure or variance argument?

1. The PSR and Pre-Sentence Investigation

Defendants can object to the PSR as a means of which can be used in conjunction with sentencing memoranda. While U.S.S.G. § 1B1.3 allows the government to use uncharged conduct when calculating a sentence, that cannot generally be used when determining a sentence in a case involving a prior criminal conviction. Federal Rule of Criminal Procedure 32(f) requires the parties to present any objections to the PSR within 14 days of receiving the PSR. While the U.S. Attorney’s Office rarely objects to the PSR’s calculations, defendants will often present an alternative calculation to a sentencing judge.

Federal Rule of Criminal Procedure 32(i)(3)(B) requires that the court resolve any dispute related to “factual matters raised by the PSR, or other documents produced by the probation office, before fixing a defendant’s advisory sentencing range.” If the sentencing judge is unable to do this, the judge must either order a re-interview by a probation officer, order a hearing to resolve the dispute, or “disclaim reliance on any information that it has not resolved.”

2. Sentencing Memoranda

As a general matter, a sentencing memorandum will contain two main sections: a section regarding departures and a section regarding variances. For both sentencing departures and sentencing variances, the defendant must state whether the sentencing judge has the authority to apply a sentencing departure or variance. The defendant then must discuss the facts of the case and address any relevant concerns of the sentencing judge. In both cases, the defendant then has the opportunity to request an authorized downward departure or downward variance.

3. Post-Offense Conduct

Additionally, while an unconvicted defendant has the right to remain silent, there is a point when a defendant will be required to talk to his or her lawyer regarding post-offense conduct. This is because a defendant must allow his or her lawyer to fully understand the defendant’s post-offense conduct. This is because, even though this conduct doesn’t involve criminal guilt, it can still be used as grounds for a sentencing variance. For example, post-offense rehabilitation can justify a variance, and admitting to wrongdoing to the probation officer when not required to do so can also justify a variance.

4. Allocution and Other Evidence

Other sentencing evidence including expert reports, family records, character letters, and even other witnesses will be presented by the parties at sentencing. Federal Rule of Criminal Procedure 32(f)(1) requires a sentencing judge to allow a defendant the opportunity to allocate before sentencing, i.e. to address the court with his or her own personal story. During this process, a judge must consider any and all facts brought to their attention to address the nature and characteristics of the offense and the characteristics and nature of the defendant. U.S.S.G. § 6A1.3 gives the sentencing judge the authority to consider information not subject to the rules of evidence, but requires that there be sufficient “indicia of reliability.” In order for information to meet that threshold of reliability, it must typically be proved by a preponderance of the evidence.

Are acceptance and minor role actually sentencing departures?

While acceptance of responsibility and minor role are commonly referred to as “sentencing departures,” they are not technically departures in the legal sense. Instead, they are considered “adjustments” to the calculated offense level.

The U.S. Sentencing Guidelines also include a provision for an “atypical” circumstance which is not formally recognized in the Guidelines themselves. Under U.S.S.G. § 5K2.0, the court can impose a downward departure if the court determines that “the offense or the defendant’s behavior on the offense reflects an extraordinary or atypical circumstance.” Such circumstances can either be present to an exceptional degree or represent a case that is significantly different from the typical ones that the Sentencing Commission has considered. One example of this is when a sentencing judge considers a downward departure for aberrant behavior as specified under U.S.S.G. § 5K2.20.

To seek a sentencing departure for acceptance of responsibility, a defendant must meet the criteria under U.S.S.G. § 3E1.1. This provision provides for a two-level offense-level reduction in cases that are accepted under most of the provision’s language. With a successful government motion, it can lead to a three-level offense-level reduction in certain exceptional circumstances. Similarly, if a defendant’s involvement in a conspiracy was only for a “minor role,” a defendant is entitled to a two-level offense-level reduction under U.S.S.G. § 3B1.2.

The distinction between sentencing departures and sentencing variances can be subtle, and the nuances between different types of sentencing departures can be even more subtle. However, when determining what evidence federal judges need to see, the distinction becomes clearer.

Can I challenge a departure or variance after sentencing?

Appellate courts review federal sentences for reasonableness, deferring to the sentencing judge’s factual assessments and determinations. In Gall, the Supreme Court of the United States affirmed that appellate courts must use the abuse-of-discretion standard to review both Guidelines sentences and sentences imposed outside of the Guidelines.

Under Gall, an incorrect calculation of the sentencing guidelines constitutes a procedural sentencing error. While appellate courts can review any preserved procedural sentencing error ordinarily under the abuse-of-discretion standard, unpreserved procedural sentencing errors typically receive “plain error” review. With substantive reasonableness, the appellate court evaluates whether the chosen sentence makes sense in light of the relevant statutory and guideline provisions. In Holguin-Hernandez, the Supreme Court of the United States affirmed that requesting a sentence in a particular range at sentencing can preserve the availability of substantive-reasonableness review on appeal.

1. Appeals and Sentencing Departures/Variances

Appealability of the approved use of a sentencing departure or variance varies. If a sentencing judge approves a sentencing departure or variance, the government generally has no grounds to challenge it on appeal unless it constitutes a substantive-reasonableness error under the appellate standard established in Gall. However, if a sentencing judge refuses a request for a discretionary sentencing departure or variance, this constitutes a fact-specific judgment. As a result, the decision to deny a discretionary sentencing departure or variance is generally not reviewable on appeal unless the sentencing judge completely misunderstood the scope of his or her authority.

While there are various authorized grounds for a sentencing departure or variance under the United States Sentencing Guidelines, as discussed in this article, sentencing judges also have the authority to consider a broad range of other mitigating facts under 18 U.S.C. § 3553(a). While this broad authority allows sentencing judges to hear and consider any relevant information about the defendant, only a documented application of an authorized departure or variance provision in the Sentencing Guidelines will lead to an authorized sentence below the advisory guidelines range.

2. Reducing a Sentence Under 18 U.S.C. § 3582(c)(2)

18 U.S.C. § 3582(c)(2) provides the authority to retroactively reduce a federal criminal sentence based on a retroactive amendment to the sentencing guidelines that lowers the Guidelines’ calculated range. This is an important provision that allows for sentence reductions under certain circumstances, including cases that were not subject to a formal appeal or that were denied appeals. With that said, relief under section 3582(c)(2) must be based on a retroactive amendment to the sentencing guidelines range, and not upon a simple request for a lower sentence or upon any other sentencing grounds.

U.S.S.G. § 1B1.10 generally prohibits a sentence reduction below the calculated Guidelines range when the defendant’s sentence was imposed using a non-binding advisory Guidelines range. This, however, does not apply if a comparable substantial-assistance reduction was not available at the time of the defendant’s sentencing. For example, suppose that a retroactive amendment to the sentencing guidelines lowers a defendant’s guidelines range from 156-195 months to 120-150 months. If the defendant was sentenced to 160 months (within the old range), a motion for a sentence reduction may reduce the sentence to 150 months. However, if the defendant was sentenced to 110 months (below both the old and new range), any motion for a sentence reduction would generally not result in the sentencing of the defendant to a length of time shorter than 110 months.

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Every case turns on its own facts, and general information is no substitute for advice about yours. Todd Spodek, managing partner of Spodek Law Group, and the firm's attorneys defend federal criminal and white collar matters nationwide. Reach the firm at 212-300-5196.