Federal sentencing hearings are an involved process that should answer essential questions to determine a defendant’s sentence. In most cases, a litigator may pursue a variance or departure, to strive for a lesser or a higher sentence.
A variance is a sentence imposed outside of a specified range based on specific sentencing factors codified by Congress in the U.S. Code (U.S.C.). A departure is a sentence imposed outside of a specified range based on specific sentencing guidelines and policies written by the U.S. Sentencing Commission, an independent agency of the judicial branch that publishes federal sentencing policies.
However, there is often confusion between the two and when they should be used. Litigators must be aware of the significant distinction to pursue the best outcomes for their case.
The U.S.C. sets the minimum mandatory and maximum sentences for offenses. Courts must impose the minimum and never exceed the maximum. The U.S. Sentencing Guidelines (Guidelines) establish a punishment range based on a defendant’s criminal history and offense. After establishing the U.S.C. extremes, the court moves to the Guideline range. Unlike the U.S.C., the Guidelines are advisory, which allow the court discretion.
When discretion is exercised, a deviation can be up or down from the Guideline range: varying or departing. “Variance” and “departure” are terms of art. A variance is a sentence imposed outside the Guidelines based on U.S.C. sentencing factors. A departure is a change from the Guideline range based on a Guideline policy.
Courts are required to impose a sufficient sentence not greater than necessary. To make that determination, the Guidelines set an advisory sentencing range that could be zero to six months or 360 months to life imprisonment. To move beyond that range, seek a variance or departure.
Properly Calculated Guideline Range
The court starts with a properly calculated Guideline range, i.e., a recommended sentence. Once the court has the Guideline range, either party may ask for an upward or downward deviation. The government usually asks for more prison time, except in Team America cooperator (snitch) situations, and the defendant asks for less.
A variance is a deviation from the Guideline range based on the 18 U.S.C. § 3553(a) sentencing factors including:
(1) the offense nature and circumstances and the defendant’s history and characteristics;
(2) the need for the sentence imposed:
(A) to reflect the seriousness of the offense, promote respect for the law, and provide just punishment;
(B) to afford adequate deterrence;
(C) to protect the public from further crimes;
(D) to provide the defendant with training, medical care, or other treatment;
(3) the kinds of sentences available;
(4) the kinds of sentence and the sentencing range established;
(5) any pertinent policy statement;
(6) the need to avoid unwarranted sentence disparities; and,
(7) the need to provide restitution.
To avoid appellate reversal, the court weighs these factors during every sentencing. The key is to have them weighed in your favor.
The government may ask the court to find any factor aggravating for an upward variance, i.e., a sentence higher than the Guideline range, but at or lower than the U.S.C. maximum. Contrarily, the defense can ask the court to find any factor mitigating for a downward variance.
A departure is a deviation based on a Guideline policy, like Section 5H1.1 (age including youthfulness or “elderly and infirm”) or Section 5H1.4 (physical condition including drug or alcohol abuse). A departure motion cites a Guideline policy statement, and is narrowly-tailored to fit the policy statement. Otherwise, the departure will be denied by the court or overturned on appeal.
Which Is Better
Vary! Because departure provisions are narrow and based on policies that have been litigated in all appellate courts, it is easy to run afoul of a Guideline policy, creating a basis for denying the departure or an appellate issue.
A variance is open-ended. Sentencings present facts that a slick-tongued attorney can argue are mitigating. Sentencings reveal a made-for-television drama that is a defendant’s life, i.e., poor upbringing, inadequate education, absent parent, poverty, molestation, depression, substance abuse, abusive partner, etc. One of those facts makes a strong variance argument but, make it big—consider a day-in-the-life video—because a lackluster, hard knock life will not wow courts as that describes most defendants. Be creative—something like the following example from my personal experience.
I prosecuted child rapist James Alsante for failing to register as a sex offender. See United States v. Alsante, 3:14-cr-61, Docket No 22 (E.D. Tenn.); See also United States v. Alsante, 812 F.3d 544 (6th Cir. 2016).
I asked for an upward variance and upward departure to the U.S.C. statutory maximum. A need to promote respect for the law; his repeat child rapist history, which I explained in colorful detail not easy to read; and, the nature and circumstances of his failure to register as a sex offender, justified the variance.
The upward departure was based on Guideline policy statements on the inadequacy of his criminal history category; that the Guidelines did not account for his specific crime; and, that he committed the crime to conceal a new crime: a second rape. The court granted the variance, but denied the departure, which the appellate court affirmed.
Fitting the facts into the narrow departure categories and supporting rationale was difficult because the policy statements made creativity hard. The facts easily fit into a less rigid sentencing factor analysis.
Without a deviation, Alsante faced a 15 to 21 months’ imprisonment Guideline range: an injustice. The variance was the path of least resistance—citing facts that fit a sentencing factor and explaining why they warranted consternation.
Bypass the Guideline range with a departure or variance motion, and variance motions are generally your best option because of their straightforward application, so start there.
This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.
Brooklyn Sawyers Belk serves as partner and chief diversity and inclusion officer at Weinberg, Wheeler, Hudgins, Gunn & Dial LLC. She previously served as an assistant U.S. attorney and a trial attorney for the Department of Justice.