Variances Under 3553(a): Arguments That Move Federal Judges in Drug Cases.

In a federal criminal case, a judge is allowed to sentence a defendant either above or below the advisory U.S. Sentencing Guidelines range. A variance is essentially a request for a sentence that falls outside the advisory range, and a variance depends on the judge’s assessment of the factors listed in 18 U.S.C. § 3553(a). But, what separates a drug variance from an objection to the Guideline calculation? If you have questions about which strategy would most likely be effective in your situation, you need to speak with an attorney at Spodek Law Group We can answer your questions with clarity. When arguing for a drug variance, you first need to understand the relationship between the Advisory Guidelines and mandatory minimums. In federal drug cases, the Advisory Guidelines are the first step toward sentencing, but statutory minimums and maximums can restrict the sentence that may be imposed. Therefore, while a judge is allowed to depart from the advisory sentencing range, mandatory minimums generally preclude the court from imposing a sentence below the statutory mandatory minimum unless an authorized exception applies.

Variances are often confused with Guideline calculation objections. A Guideline calculation objection attacks the advisory range; a variance asks for a sentence outside that range that is either above or below the recommended Guidelines. While a variance argument generally accepts the calculated range, it argues that the factors listed in § 3553(a) demand a different sentence. The burden of proof in variance requests falls on the sentencing defendant, but with the right guidance and strategy, these requests can be successful.

Which § 3553(a) factors control the judge’s individualized drug sentence?

The overarching goal is to secure a sentence that is “sufficient, but not greater than necessary” to comply with the statutory goals of criminal justice. This is the most common quote in sentencings opinions in drug cases; and while this quote can be meaningful in certain circumstances, it is generally a placeholder for a more serious discussion about the underlying § 3553(a) sentencing goals. Here is a more detailed look at the section 3553(a) sentencing goals that apply in drug cases: - Nature and circumstances of the offense and history and characteristics of the defendant: Under Section 3553(a)(1), a federal drug sentencing judge must consider “the nature and circumstances of the offense and the history and characteristics of the defendant.” The court must consider the nature and circumstances of the offense and the history and characteristics of the defendant, as well as the need for needed educational or vocational training, medical care, or other correctional treatment in the most effective manner. - Seriousness of the offense, respect for the law, acceptance of responsibility, and just punishment: The provisions of section 3553(a)(2)(A) include “the seriousness of the offense,” the “need for the sentence imposed to reflect respect for the law,” and the “need for the sentence imposed to provide just punishment for the offense.” - Adequate deterrence of criminal conduct: Under section 3553(a)(2)(B), a drug sentencing judge should consider “the need for the sentence imposed-... (B) to afford adequate deterrence to criminal conduct;” Generally speaking, this goal doesn’t make it appropriate to impose a sentence that exceeds the guideline range in any criminal case, including drug cases. - Protecting the public from further crimes: Finally, under Section 3553(a)(2)(C), a judge in a federal drug case must consider “the need for the sentence imposed-... (C) to protect the public from further crimes of the defendant;” Again, this factor generally will not be enough on its own to call for a sentence within the advisory guideline range.

How do drug quantities, guideline ranges, safety valves, and mandatory minimums interact?

The process of calculating drug variance requests also touches on how sentencing judges deal with 18 U.S.C. § 3553(a). Specifically, Section 3553(a)(4), Section 3553(a)(5), and Section 3553(a)(7) all mandate consideration of certain factors. These factors are, respectively, (4) the applicable Guidelines range; (5) any relevant written policy statement issued by the Sentencing Commission; and (7) the need to provide restitution to any victims of the offense.

To determine the drug sentencing Guideline levels, courts predominantly refer to the quantity and nature of the drug involved. As a result, a party may attack the Guideline range in cases where the Guideline range itself was based on assumptions about the type and amount of drug involved.

The Sentencing Guidelines categorize defendants based on criminal history, which then places them in one of six ranges. A range for Category I defendants is different from a range for defendants in Categories II-VI.

The interaction between mandatory minimums and sentencing Guidelines is another area that creates opportunities for making an appropriate drug variance request. Many times, the applicable Guidelines range will suggest a sentence that is shorter than the statutory mandatory minimum sentence. In most cases, the statutory mandatory minimum prevails, meaning the judge is unable to impose the range suggested in the Sentencing Guidelines. This creates a range that suggests an appropriate sentence and a statutory minimum that mandates a sentence higher than that of the suggested range.

There is, however, an exception under 18 U.S.C. § 3553(f) known as the “statutory safety valve.” If you meet the criteria for the safety valve, the court must impose a sentence under the Guidelines without regard to the applicable statutory minimum. When arguing for a drug variance under 3553(f), federal defense lawyers will focus on the nature of the offense as a non-mandatory minimum case as well as any other arguments that would warrant a reduced sentence. The safety valve allows the judge to impose a Guidelines sentence without regard to an otherwise applicable statutory minimum.

What proof can connect rehabilitation, hardship, and disputed PSR facts to § 3553(a)?

Prior to sentencing, a federal probation officer will prepare a presentence investigation report (PSR) based on a review of the available evidence and an interview with the defendant. This PSR will be sent to both the judge and the parties involved. Both the government and the defendant are entitled to review and object to any of the factual or guideline findings in the PSR, including any issues regarding safety-valve eligibility. A defense lawyer in a federal drug case will take advantage of every opportunity to dispute the government’s case. One of the most significant opportunities is through the sentencing memorandum. This document is a comprehensive presentation and is used to articulate mitigation, raise any legal objections, present any pertinent expert evidence, and propose any alternatives that may be appropriate for the court’s consideration. Arguments for an individualized sentence under Section 3553(a) also require individualized evidence. These arguments generally include: - Medical evidence (past, present, and/or future)

• Mental-health evidence (including diagnosis and treatment history)
• Treatment and/or rehabilitation evidence (e.g., narcotics rehab or successful completion of a diversion program)
• Family responsibilities that will be severely impacted, or otherwise warrant relief, in the defendant’s case. While these arguments all fall within the purview of the § 3553(a) analysis, family responsibilities do not necessarily warrant a drug variance. Many times, the Sentencing Guidelines are determined by a case’s specific circumstances, such as the quantity of the drugs involved. As a result, demonstrating familial responsibility is only one piece of a much larger puzzle in establishing eligibility for a drug variance. For cases involving drug quantity, safety valve issues, and criminal history issues, the Sentencing Guidelines will likely still need to be analyzed in depth. Finally, defendants in federal drug cases will have the opportunity to address the court personally. While the sentencing judge may already be quite set in their opinion by the time the defendant speaks, presenting clear, succinct arguments regarding variance can prove a powerful strategy. Our attorneys will work with you to identify all possible arguments for your case, help you navigate the sentencing process, and prepare you to address the judge effectively, all in order to avoid a harsh sentence.

When do departures, government motions, appeals, and sentence modifications change the result?

A drug variance and a drug departure differ in their authoritative basis. A drug variance is based on 18 U.S.C. § 3553(a). A drug departure is based on authority found within the Sentencing Guidelines framework itself. Drug departures generally include substantial-assistance departures, while the safety valve is a statutory and Guidelines provision that permits a sentence without regard to an otherwise applicable statutory minimum. The safety valve is addressed in Guidelines § 5C1.2, and substantial-assistance departures are addressed in Guidelines § 5K1.1. A drug departure based on substantial assistance under Section 5K1.1 is dependent on a government motion.

If you are already in federal prison, it could be too late to pursue a drug variance or drug departure. This means you are looking to have the sentencing court modified. As long as your modification falls under the factors specified in Section 3582(c), you can pursue a modification of your sentencing. When preparing a drug variance or departure request, our attorneys rely on § 3553(c), which states, “The court, at the time of sentencing, shall state in open court the reasons for its imposition of the particular sentence.” This provides a statutory requirement for drug sentencing judges to adequately document and justify the sentencing of all federal drug defendants. Furthermore, by documenting the judge’s thought process, this opens the possibility that the appellate court could determine the sentencing was “clearly erroneous” or represents an “abuse of the discretion.”

Finally, relief based on substantial assistance can involve filing a motion under 18 U.S.C. § 3553(e). Even though substantial assistance qualifies for a sentence below the mandatory minimum, a defendant still needs a government motion to pursue a sentencing relief under 18 U.S.C. § 3553(e). Because the United States Attorney’s Office will only file a motion when the U.S. Attorney believes that the substantial assistance provided, or other circumstances of the case, justify doing so, it will often take convincing arguments by a defendant’s lawyer to secure a government motion for the sentencing court to award a sentence below the statutory mandatory minimum.

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