Unlike departures, a federal court isn’t bound by a specific set of considerations in its decision to grant a variance.

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


In my previous blog I discussed an overview of the federal sentencing system and the concept of departures. In this 2nd part of that series, I will be focusing on the concept of variances. 



Why is a variance different than a sentencing departure?


Unlike departures, a federal court isn’t bound by a specific set of considerations in its decision to grant a variance. Federal courts have held that variances aren’t’ subject to the guideline analysis for departures and in some situations a prohibited ground for departure is a valid basis for a variance.  



Further, unlike a departure, variances aren’t subject to a notice requirement and as court may grant a departure and a variance in the same sentence. For example, a court may grant a departure under Section 5K for substantial assistance and a variance for a defendant’s history and characteristics, which normally, in and of themselves, do not serve as an adequate basis for a departure. Variances are covered in Section 3553(a) which lists a series of factors that a court should consider for a variance. It is important to understand that variances do not only go in favor of the defense, they are also applicable for the prosecution’s case for aggravation. 


The following are factors a court should consider for upward or downward variances: 


  • The nature and circumstances of the offense and the history and characteristics of the defendant 
  • Defendant’s health problems 
  • Family circumstances 
  • The nature of the offense 
  • Cooperation with the government 
  • The need for the sentence to reflect the seriousness of the offense 
  • The need for the sentence to promote respect for the law 
  • The need for the punishment to afford adequate deterrence to criminal conduct 
  • The need to protect the public from further crimes of the defendant 
  • To provide the defendant with immediate educational or vocational training, medical care, or other correctional treatment in the most effective manner 
  • The need to provide restitution to any victims 


How much discretion does a federal judge have at sentencing?


The sentencing judge has the discretion to consider a variance under the totality of the circumstances or factors under 3553(a). Further, the court may impose a variance (upward or downward) if it disagrees with the sentencing guidelines based on policy or some other precedent.  


Variances specifically allow the court to deviate from sentencing guidelines without any restriction normally associated with departures. While departures are specifically discussed in chapter 5A of the United States Sentencing Guidelines, variances are permissible under 18 USC § 3553. If a federal court deviates from the standard sentencing guidelines and there is no other basis for a departure under Section 5K 2.0(e), it requires that it state a specific reason for the departure under 18 USC § 3553(c) in open court at the time of sentencing. 


Remember that there is a dramatic difference between a departure and a variance and there are a number of limitations on departures including but not limited areas which most individuals would believe are relevant to mitigation. These “discouraged grounds” for departures include: defendants age, education, mental or emotional conditions, drug dependency, employment, or family responsibilities. These factors are not ordinarily relevant in determining if a departure is warranted. These factors are only used in extraordinary cases. 


Federal court sentencing is a very complicated issue and for more information I encourage you to contact our office. 

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