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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.

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Attorney answers 4

Posted

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.

Peter D Aiken

Peter D Aiken

Posted

In my experience the departures are hard to get if the government opposes them. Many of the departures cane be negotiated and agreed to as part of the plea agreement.. It is much easier to get a variance than a departure because the judge is less likely to be appealed on a variance if he is going below the guidelines.

Posted

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

Posted

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.

Asker

Posted

Are variances something that take a judicial action? I thought that judges were the ones that granted a variance at sentencing?

Haytham Faraj

Haytham Faraj

Posted

Judges make the final decision on all matters in sentencing unless you're have a specific agreement under Rule 11(c). The variance, however, means that when it is incorporated you will be within a specific guideline range. The judge may still depart up or down even after the variance is incorporated into the guideline calculation.

Asker

Posted

Is the following true about Rule 11(c)(1)(C) pleas. 1.) There are certain U.S. Attorneys Offices around the United States which will not entertain the possibility of a Rule 11(c)(1)(C) plea agreement? 2.) As attractive as a Rule 11(c)(1)(C) plea agreement may sound to some defendants, it is not necessarily a good thing. Because at sentencing in the federal system, the defendant can argue for a departure under the guidelines as well as a variance under 18 U.S.C. §3553(a). Therefore, a defendant accepting an agreed upon sentence is in essence losing his opportunity to have their defense attorney argue for a sentence below that which the prosecution will be willing to agree to? (Just curious).

Syrie Davis Fried

Syrie Davis Fried

Posted

I actually do not agree with this answer for the reasons I state below.

Posted

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.

Alexander M. Ivakhnenko

Alexander M. Ivakhnenko

Posted

Excellent clarification.