Federal Sentencing: how to get from the Guidelines to a Non-Guidelines Variance

prison-cells-jpg--300x169Federal sentencing was upset when the Supreme Court, in 2005, ruled that the Sentencing Guidelines are no longer mandatory but merely advisory.  What was then thought a landmark decision (taking sentencing from the heartland of the Guidelines back to judicial discretion) has been somewhat  illusory.  “Illusory”…yes as now a federal judge doing a sentencing of a federal criminal defendant now can sentence a non-guidelines sentence, if the judge desires.

Excerpt of the introduction of Federal Guidelines

This brief post is an introduction to the path from a sentence that is set by the Sentencing Guidelines Commission to a non-guidelines variance sentence.

First the court must determine what is the correct guidelines range, let’s use a level 21 Guidelines of 37 to 46 months and move forward.  First you must give a legal reason for the judge to pronounce a sentence that is non-guidelines.  There is a wealth of caselaw to use here.  In essence you are providing the judge, in a Defendant’s Sentencing Memorandum, the caselaw which supports a judicial finding that a non-guidelines sentence is appropriate.  All the arguments arise from federal statute  section 3553 which you find as 18 U.S.C. 3553(a)(1)-(7).  Read it.  You will see and you must be familiar with the four basics of sentencing policy created by the Congress in the statute  What follows is the basics, heartland and the entire world of sentencing: the 3553’s.  Read is slowly: The court must pronounce a sentence that is “sufficient but not greater than necessary” to achieve the goals of 3553. It must reflect the seriousness of the offense and at the same time promote respect for law.  The federal criminal sentence must also  provide a just, or appropriate punishment for the offense.  The sentence must provide adequate deterrence to any criminal conduct by others (future federal criminal defendants).

Moving on, it must protect the public from any further crimes by the defendant before the Court and the sentence should provide the defendant with some of the needed educational and or vocational training while in custody.  The federal criminal court judge must balance the purposes, nature and circumstances of the offense with the history and characteristics of the Defendant.  Then, with a look over the judicial shoulder and a view into the future, the judge must fashion a sentence that avoids unwarranted differences or disparities of sentence for like-situated defendants and provide for restitution so the victim is compensated.

Your federal criminal attorney will argue some of the leading cases such as Gall vs U.S. 552 US and a host of other cases.  What appears like a confusing mess is very simple after you see the path for federal sentencing.  Step one: convince the judge to give a non-guidelines sentence by demonstrating that the guidelines are either out of date or have been eclipsed by new law, new studies and new sentencing laws.  Just this past year the Congress passed and President Trump signed a new sentencing statute that puts most of the past twenty years of caselaw and sentences in a new light.

If you, or a loved one or friend, is facing a federal sentencing then take the time to read over 18 U.S.C. 3553(a)(1)-(7) and sit with an experienced federal criminal defense attorney who knows your district court and it’s sentencing attitude.  Good luck!




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