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Federal case sentencing (downward variances vs. downward departures)?

Chicago, IL |

Which of these two help a defendant more in a federal case at sentencing? Just curious which of these are more helpful based on what you have seen in how the system works.

Attorney Answers 4


  1. Both downward departures and variances can reduce sentence durations in federal criminal cases.
    Downward departures are usually presented in conjunction with a plea agreement and the cooperation of the defendant in other investigations or prosecutions.
    Variances are argued by the defense based on specific factors present in the defendant's background.

    Experienced federal criminal defense attorneys study the sentencing guidelines and case law to determine what approach will best serve their client.

    Of course, every answer is based on the question asked and requires a more complete context. This answer should not be relied upon to make a legal decision. Seek the advice of an experienced criminal defense attorney before acting. Law Offices of Raymond G. Wigell, Ltd. Defenders of the Constitution since 1975/ Aggressive Creative Defense Strategies/ Website: www.waaltd.com 24/7 --(708) 481-4800.


  2. This can depend. Both downward departures and variances deal with the sentencing guidelines. These guidelines are no longer mandatory but are given great deference by many of the District Judges, and less by others. The AUSAs almost always start with using the guidelines as the framework for recommending a sentence. Unless the AUSA is in agreement you will have to have a good basis for either. You need an attorney who knows the practices Judges and the AUSAs. If you need assistance please feel free to call 312-474-7934 or james.knibbs@mbtlaw.com


  3. Variances are based on the guidelines and specifically facts that would result in a variance from a particular guideline sentence. A variance changes the applicable guideline sentence which are no longer mandatory.
    A departure is an action that a judge takes. It can be up or down and is a departure from the guideline range.
    To summarize, a variance changes the range while a departure is a judicial action that departs from the guideline range.

    This is not legal advice. This is merely a recommendation on how to get what you need from the Court.


  4. The difference between a departure and a variance has to do with how they are legally justified when imposed and later analyzed on appeal. The net effect of the 2 at a sentencing hearing is the same. What do I mean? I mean that departure jurisprudence is guided by the terms of the guidelines themselves and the appellate law that has developed interpreting departure provisions within the guidelines. Variances aren't required to be explained or grounded within the terms of the guidelines themselves. A sentencing judge can come up with a reason for granting a downward variance from a guideline sentence that has no reference to what is in the guidelines and does not have to be justified by guidelines jurisprudence. On appeal, the propriety of the variance is determined by principles of "reasonableness," and not by whether the guidelines authorized a departure for that specific offense on a specific ground set out within the guidelines themselves. Most experienced federal defense lawyers at sentencing will ask for them both to be granted in the alternative because a variance is more resistant to reversal on appeal than a departure is.

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