DEPARTURES FROM FEDERAL SENTENCING GUIDELINES

Can A Judge Give Me A Lesser Federal Sentence?

Sentencing in the Eastern, Middle and Western Districts of North Carolina is governed by the Federal Sentencing Guidelines. While these guidelines do not provide mandatory sentences, most judges do not deviate substantially from their recommended sentencing ranges.

However, judges do have the discretion to depart from sentencing guidelines if they are presented with specific mitigating circumstances. An experienced federal sentencing attorney can help you present your case for a more lenient sentence in your federal sentencing memorandum. There are several examples of sentencing memoranda on the Federal Public Defender’s website.

Reasons For Downward Departures From Guideline Sentences

The judge will set the base level for your offense at your sentencing hearing based on the information in the pre-sentence report and the resolution of any objections by your defense lawyer or the government.

Your base-level offense will set the initial range for your potential sentence. Any aggravating or mitigating factors may then be used to raise or lower that range. Examples of the approximately 40 mitigating factors include, among others:

  • Accepting responsibility for your actions
  • Providing substantial assistance to authorities
  • Your current physical, medical or mental condition
  • Steps you have taken since your offense to rehabilitate yourself (a Sally petition)
  • Prior military service
  • A history of strong contributions to your family or community
  • Application of the federal safety valve to certain drug offenses

Every reason that is asserted for a downward departure should be documented and supported by evidence in your sentencing memorandum.

Conversely, there are over 100 aggravating factors in the federal sentencing guidelines.

If You Cannot Secure A Departure, You May Be Eligible For A Variance

While a downward departure involves using the guidelines to lower the applicable sentencing range, a variance is a sentence outside the guideline range. A judge may utilize a downward departure in determining the applicable sentencing range as well as a variance below that guideline range in determining your sentence. In an ideal situation, a variance may result in probation despite a guideline range of a term of years for a federal criminal conviction.

A federal defense lawyer can explain this further if it applies in your case.

U.S. vs. J.R.
Charge: Mail Fraud (9 Counts), Conspiracy to Commit Mail Fraud
Facing: Three years in prison
Result: One year, One day

Our client was convicted of nine counts of mail fraud and one count of conspiracy to commit mail fraud. The government alleged that our client fraudulently obtained more than $115,000 from her former employer. At the sentencing hearing, the Judge granted our motion for a downward departure, sentencing our client to one year and one day. The government had asked the judge to sentence our client to several years.

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