Wondering if a person is about to have baby and become a father within 4 months and sentencing is in 3 months in a federal white collar case with a recommended sentence of 2 years if this would count as a potential mitigating factor for the defense when arguing for a downward variance at sentencing?
It is probably not unique enough to become a downward sentencing departure, however, under 18 USC section 3553 (a) (1) the court is required to consider the history and characteristics of the defendant, so even if not recognized by the guidelines as a downward departure, it can still be advocated as a potential mitigating factor.
No legal advice is given here. My responses to questions on Avvo are never intended as legal advice and must NOT be relied upon as if they were legal advice. I give legal advice ONLY in the course of a formal attorney-client relationship. Exchange of information through Avvo's Questions & Answers forum does not establish an attorney-client relationship with me. That relationship is established only by joint execution of a written agreement for legal services. I am only licensed in the States of California and New York and the District of Columbia
Departures have lost some of their importance since the Supreme Court declared the federal sentencing guidelines to be advisory only. I agree with Mr. Solis that the facts you describe would probably not warrant a downward departure under the guidelines, but they would be considered in determining the actual sentence under Section 3553(a).
The fact that you will become a father just a month after sentencing may be argued as a reason for a variance to the applicable US Sentencing Guidelines range pursuant to several factors in 18 U.S.C. § 3553(a). However, it is necessary that you demonstrate the mother and child's need for your support, both parentally and financially, for the argument to be effective.
Joshua Sabert Lowther, Esq.
NATIONAL FEDERAL DEFENSE GROUP
Federal Crime Lawyer
I agree with Mr. Solis that this could play a part in determining your sentence based on background and characteristics. A lot depends on the judge you have and how they feel about this kind of information. Some are more influenced by these things than others. It's always wise to make sure the judge hears the good points in your story - your work, your family, etc. Letters of support and even photographs attached as exhibits to your sentencing memo can make a judge take a closer look at your case and consider varying downwards from the recommended guidelines range. A lot may also depend on whether this is a first time offense, as that is when family information is most useful, in my opinion. Best of luck!
I am a CA attorney and this is just meant to get you started in looking for the right lawyer! This is not legal advice. No Attorney/Client relationship has been formed. I may or may not be licensed in your jurisdiction. Please consult an attorney licensed in your jurisdiction for state specific advice.
Federal Crime Lawyer
If the AUSA is recommending 24 months, they should sponsor a departure to that fact from any applicable guideline over that amount. The child may not be a mitigating factor to the crime, but sure would be a great 3553 fact for a variance. Talk to your attorney about this idea. Take Care!
Sentencing in the federal system is a somewhat complicated process. The probation department, as part of its pre-sentence investigation, determines the applicable federal sentencing guidelines. The guidelines are advisory only. The federal judge must consider them but is not bound to follow the guidelines as determined.
The defendant's attorney has the right to challenge the guidelines in the pre-sentence report ("PSR") of the probation department. Ordinarily, this occurs when the defendant and his attorney believe that there is a mistake in the PSR's proposed application of the guidelines. The district court judge will rule on any objections to the PSR.
Your question states that there is a recommendation for a sentence of two years. Is this the guidelines calculation, a recommendation by one of the parties, or a joint recommendation? Moreover, you should be aware that the judge is not bound by any recommendation. The sentencing court may ignore the recommendation and sentence above or below that recommendation.
Ultimately, the law charges the judge with the duty to sentence a defendant to a just sentence for that particular defendant. As several of the responses point out, 18 U.S.C. sec. 3553(a) becomes important in this regard. That subsection enumerates the "[f]actors to be considered in imposing sentence." Subsection (1) includes the "history and characteristics of the defendant." In addressing this portion of the statute, the attorney, in the case that serves as the basis for your question, could discuss the impending birth and the importance of the involvement of the child's father in the child's early life and how the father's involvement will help the child's mother.
Moreover, consideration should be given to a discussion of each of the 3553(a) to determine the possible impact on the sentence.
This response is for informational purposes only. It does not create a legal engagement between questioner and answerer nor does it create an attorney client relationship. The questioner should retain an attorney for legal advice.