Skip to main content

How does downward departure work when the defendant is looking at a mandatory minimum of 15 years?

Austin, TX |

Please explain how it would work on his behalf

Attorney Answers 6

Posted

Generally speaking, a downward departure happens by motion of one of the two parties in a federal case. The basic argument would be that the recommended guideline range for the offense is not reflective of the severity of the offense (too much punishment for the crime) or at least the defendant's role in that crime (happens a lot in conspiracies). The problem is that sentencing courts generally cannot depart below the recommended guideline range unless, for instance, the defendant is receiving safety valve protection b/c he or she has no significant criminal history or the defendant is receiving a 5k adjustment for assisting the government. You would know if the defendant was getting one of these departures.

Beyond these, federal judges are usually going to tell you, "I wish I could go below this mandatory minimum, but the law does not allow me to do so." You're probably best off trying to argue that, for one reason or another, the mandatory minimum does not apply to this defendant, so right now what he or you need to be looking for is a sharp attorney well versed in the sentencing guidelines.

Mark as helpful

1 found this helpful

3 lawyers agree

5 comments

Asker

Posted

Safety valve? This person has no criminal background at all. Would that qualify them?

Mark Allen Yurachek

Mark Allen Yurachek

Posted

It really depends on a lot of factors in the case and the safety valve only applies to specific offenses. Those factors, generally, are: no criminal history; no violence or threat of violence in the case; no death or serious bodily injury resulting from the crime; Defendant was not a leader/organizer of any conspiracy which may have been charged and Defendant has cooperated w the gov't. Now i'm paraphrasing the criteria, but the 15-year man/min sounds like an ACCA case, which of course would mean that there IS a significant criminal history. I could definitely be wrong about that, so if I am, I am, but what you really need to do is have the attorney and the defendant review those criteria to see if he qualifies. A decently knowledgeable attorney, though, is going to automatically think about the safety valve if it's a man/min case and the defendant even arguably qualifies.

Asker

Posted

Thank you!

Asker

Posted

Oops I'm sorry what's an ACCA case? And the defendant is being charged with one count of production of child pornography. He has no criminal history at all. Nonviolent offense. Had an affair with a minor & made a sex video with her permission. Just thought I'd give you a few more details. I wonder if he does qualify for the safety valve.

Mark Allen Yurachek

Mark Allen Yurachek

Posted

Safety valve generally deals with substance abuse cases, so my initial reaction without double checking myself is, no, he does not qualify for the safety valve provision. ACCA is the armed career criminal act and I don't think it has any relevance to this case. Obviously, the penalty is severe if the crime is as you have described. The best thing I can tell you is that you should seek out the best attorney you can find to handle the sentencing and, if necessary, the appeal. You say the defendant is being charged with the crime, so maybe there has not yet been a plea or conviction. If so, seriously, find the best lawyer they guy can get because these charges are not ones he wants to be convicted of for sure.

Posted

It may not work at all. A downward departure does not allow the judge to go below the mandatory minimum sentence. The only way the judge can go below the mandatory minimum sentence (even if the judge wanted to) would be for the defendant to either qualify for "saftey valve" or for the AUSA to file a 3553(e) motion. Unless one of he hose two findings are made by the Court, the judge may not, by law, sentence to anything lower than the mandatory minimum.

Mark as helpful

3 lawyers agree

Posted

This would best be explained by this individual's Federal Defender or retained defesne attorney--although it's difficult to downwardly depart from a "mandatory" minimum. It's possible to downwardly depart to the minimum. So many variables involved, your question is impossible to answer.

Experienced Criminal Defense Attorney--

Mark as helpful

2 lawyers agree

Posted

In the Seventh Circuit, where I do most of my federal court practice, the concept of "departure" has little meaning left now that the sentencing guidelines are advisory rather than mandatory, and sentencing is imposed pursuant to Section 3553. I gather from the responses I have seen over the years from my colleagues that departures continue to play a more significant sentencing role in other circuits.

Mark as helpful

1 lawyer agrees

Posted

A 5k1.1 AUSA sponsored departure allows under circumstances to break the MM and sentence lower.

Mark as helpful

Posted

In general, a prosecutor can file a motion for a sentencing reduction for a cooperating defendant, and can recommend a sentence below the advisory guidelines and/or below a mandatory minimum. When a mandatory minimum is at issue, other attorneys have correctly advised that a competent defense attorney will seek an agreement for a reduction under both statute and guidelines, so as to give the court authority to sentence below both statutory minimums and advisory guidelines. The ultimate sentence will then be determined by the court, with prosecutors advising the court of efforts at cooperation, and possibly also recommending a specific term or reduction. The defense will also be able to argue for a reduction, along with supporting arguments and evidence about cooperation, mitigation, and other factors that favor leniency. Anyone facing a federal prosecution should obviously work closely with retained or appointed counsel to understand any agreement in a specific case, and to understand any sentencing options based on cooperation. General information in a public discussion forum is no substitute for working closely with a lawyer on a specific federal case to understand all proceedings and defense strategies.

The author provides answers on this site based on hypothetical questions and fact patterns. The answers provided are for general educational and informational purposes only, and they do not constitute legal advice, which would require a personal consultation and representation agreement. Questions and answers on this site do not create an attorney-client relationship, and the communications are not privileged. Any citizen with a legal issue should consult personally with an attorney and should rely only on legal advice provided in a formal attorney-client relationship.

Mark as helpful

1 found this helpful

1 comment

Asker

Posted

Thank you so much for your response.

Criminal defense topics

Top tips from attorneys

What others are asking

Can't find what you're looking for?

Post a free question on our public forum.

Ask a Question

- or -

Search for lawyers by reviews and ratings.

Find a Lawyer

Browse all legal topics