A federal court may impose a sentence outside of the properly calculated guidelines through either a departure or a variance.

Alfonso Gambone
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A Philadelphia criminal defense lawyer representing accused persons throughout Pennsylvania and New Jersey.

Our law firm represents individuals in criminal matters in state and federal courts in Pennsylvania and New Jersey. We often receive questions regarding federal sentencing procedures and specifically, the ability of a federal judge to deviate from sentencing guidelines for specific offenses.


Federal Sentencing Following US v. Booker


Following the decision in US v. Booker, federal courts may consider, without any limitation, information concerning the background, character, and conduct of the defendant. The sentencing federal judge may use this information to fashion an appropriate sentence within the applicable guidelines and to determine to what extent to sentence outside of the guidelines. A federal court may impose a sentence outside of the properly calculated guidelines through either a departure or a variance.


Sentencing Departures vs. Variances

A departure is a deviation from the final sentencing range which is triggered by either the prosecution’s request to reward a defendant’s cooperation or by other factors which take the case and the defendant’s circumstances “outside the heartland” which the sentencing commission considered when it drafted the guidelines for a typical offense.


A variance is an upward or downward change based on the applicable guidelines which a sentencing judge may impose based on the application of other statutory factors in 18 USC § 3553(a).


Sentencing in federal court is a 3 step process which occurs as follows:


  1. The court must properly determine the guideline range;
  2. The court must determine whether to apply any guideline departure policy statements to adjust the guideline range up or down;
  3. The court must consider all factors set forth in 18 USC § 3553(a) as a whole, including whether a variance is warranted.

What must happen for a Court to depart from the guidelines?

Before a court departs from the standard guideline range, it must give reasonable notice to both the prosecution and defense regarding the nature of the departure unless the grounds are identified in the pre-sentence report or within either of the parties pre-hearing submissions (sentencing memorandums). Further, the court isn’t required to give any advance notice of a variance, unlike a departure. While some federal circuit courts have adopted explicit presumptions as to the reasonableness of guideline sentences, other circuits, including the 3rd circuit (Pennsylvania), have rejected this presumption.

What is a departure? 

Departures provide authorized adjustments to a standard sentencing range within the guideline system. They provide federal courts with a way to impose an appropriate sentence in exceptional circumstances and permit a judge to impose an individualized sentence by taking into account mitigating and aggravating factors which were not taken into account when the sentencing commission formulated the guidelines. While departures are important, the federal guidelines manual is very explicit that a court should only depart (upward or downward) in a “atypical” case, which is outside the “heartland” of the conduct or offense.


The following are common guideline departure areas.


Departure Based on Inadequacy of Criminal History Category

 A defendant’s criminal history sometimes fails to properly characterize a defendant.  A court, therefore, may impose an upward departure if a defendant’s criminal history is substantially underrepresented or there is the likelihood that a defendant will commit other crimes. For an upward departure a court may consider sentences of foreign courts, independent crimes committed on different occasions, prior misconduct or failure to comply with administrative orders, along with prior misconduct which did not result in a criminal conviction. Please note, however, that a defendant’s prior arrest record itself cannot be considered for the purposes of an upward departure.

A court may consider a downward departure if the defendant’s criminal history substantially over represents the seriousness of his criminal history or the likelihood that he will commit future offenses. Section 4a 1.3 however, prohibits the departure below the lower limit of the applicable guideline range for a criminal history Category 1.


Substantial Assistance to Authorities—Section 5K 1.1

Section 5K 1.1 provides a downward departure from the guidelines if the government files a motion stating that the defendant has provided “substantial assistance in the investigation or prosecution of another person who has committed an offense”. If the government files such a motion, the court shall determine the amount of the reduction based on the following factors:

  1. The significance in usefulness of the defendant’s assistance
  2. The truthfulness, completeness, and reliability of any information or testimony provided by the defendant
  3. The extent of the defendant’s assistance
  4. Any injury suffered or danger or risk to the defendant or family resulting from his assistance
  5. The timeliness of the defendants assistance


It is important to keep in mind that the court must consider a 5K reduction independently from any reduction from acceptance of responsibility.


Part 2 – Sentencing Variances

This was part 1 of my blog on federal sentencing procedure. Part 2 will focus on variances, which as stated earlier, a court may impose regardless of its decision to depart from the standard guidelines. A court will consider a variance outside of the guideline range after it has considered all relevant departure provisions. Courts may impose a variance without regard to a guideline analysis and in some cases; a prohibited ground for a departure is a valid basis for a variance. A court may impose a departure and a variance in the same sentence.

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