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©2010 ALM
tuesday, may 4, 2010
Volume 243—NO. 84
Expert Analysis
Outside Counsel
Seeking Leniency in Federal
Sentences: Are Departures Dead?
S
tudents of constitutional law are familiar
with the argument that strict scrutiny is
strict in theory, but fatal in fact. In the
post-Booker, advisory guidelines era, a
similar question arises for defendants
seeking leniency at sentencing: while nongovernment-sponsored downward departures
in theory remain part of the defense arsenal, are
they—or should they be pronounced—dead in
fact?
If you survey the federal appeals courts
around the country, the views are varied. Some
circuits encourage, if not require, consideration
of available guidelines departure authority. Other
circuits have declared departures to be “obsolete”
and “redundant” in light of the broad variance
authority under 18 U.S.C. §3553(a).1
Statistics compiled by the U.S. Sentencing
Commission support the view that, if not dead,
departures certainly are a dying breed in the
district courts, whereas variances continue to
steadily rise as a basis for sentences outside (most
often below) the calculated guidelines range. Well
aware of these developments, in April 2010, the
Sentencing Commission approved amendments
to the guidelines manual intended to reinforce
its view that the proper sentencing protocol
still includes consideration of whether there are
grounds for a departure under Parts H and K of
Chapter Five, and that such consideration should
come prior to an assessment of the §3553(a)
factors as a basis for a variance.2
In the face of such disarray, what is a defense
lawyer to do—argue for one or more departures,
argue for a variance, or argue both? In this article
we review these trends in greater detail, with
an eye toward making practical and strategic
suggestions for the practitioner seeking to advance
the most persuasive arguments in favor of leniency
for his or her client.
Guidelines as a Starting Point
When the Supreme Court held in Booker that
the mandatory application of the sentencing
guidelines violated the Sixth Amendment, and
rendered the guidelines advisory only, it was
Eric Tirschwell is a partner in the white collar defense
group at Kramer Levin Naftalis & Frankel and the Second
Circuit representative to the U.S. Sentencing Commission’s
Practitioners Advisory Group. Jennifer Diana is a litigation
associate at the firm.
the guidelines,” employing the “deferential abuseof-discretion standard” and reversing only where
the trial court’s decision “cannot be located within
the range of permissible decisions.”6
A Frolic and Detour?
By
And
Eric
Jennifer
Tirschwell
Diana
careful to emphasize that sentencing judges still
“must consult” the guidelines and “take them
into account” when determining an appropriate
sentence.3 Two years later, in Gall, the Court
applied Booker’s “reasonableness” standard of
review and reiterated that the “guidelines should
be the starting point and the initial benchmark,”
with the important qualification that the sentencing
court “may not presume that the guidelines range
is reasonable.”4
What is the defense practitioner to do
when it comes to seeking leniency at
sentencing—argue departures, argue
variance, or argue both?
Or, as the Court explained the same term in
Kimbrough, while the sentencing court is still
required “to give respectful consideration to the
guidelines, …Booker ‘permits the court to tailor
the sentence in light of other statutory concerns
as well.’”5
Summarizing and applying this guidance, the
U.S. Court of Appeals for the Second Circuit, sitting
en banc, recently explained that while “sentencing
judges…are not free to ignore the guidelines, or to
treat them merely as a ‘body of casual advice,’” they
are “generally free to impose sentences outside
the [guidelines] recommended range” pursuant
to §3553(a). Distinguishing itself from some other
circuits, the Second Circuit does not presume on
appellate review that a guidelines-range sentence
is reasonable; and, consistent with the framework
set out by the Supreme Court, it will not presume
that a non-guidelines sentence (i.e., a variance) is
unreasonable or require that a variance be justified
by extraordinary circumstances.
Rather, when reviewing a non-guidelines
sentence, the appeals court considers “the degree
of variance…[and] the extent of a deviation from
There are circuits, like the Third, that even after
Booker explicitly require a district court to do a
complete guidelines analysis, including ruling on
all departure applications.7 Other circuits have
suggested that the concept of “‘departures’ has
been rendered obsolete” in the post-Booker
world.8 As the U.S. Court of Appeals for the Ninth
Circuit explained: “to require two exercises—one
to calculate what departure would be allowable
under the old mandatory scheme and then to go
through much the same exercise to arrive at a
reasonable sentence—is redundant.” “After all,
if a district court were to employ a post-Booker
‘departure’ improperly, the sentencing judge still
would be free on remand to impose exactly the
same sentence by exercising his discretion under
the now-advisory guidelines. Such a sentence
would then be reviewed for reasonableness, in
which case it is the review for reasonableness, and
not the validity of the so-called departure, that
determines whether the sentence stands.”9
The Second Circuit seems to have staked out a
position somewhere in the middle. Starting with
United States v. Crosby in 2005, the circuit has
held that, so long as the district judge considers
what the guidelines have to say on a particular
departure issue, she may then decide to impose
a non-guidelines variance under §3553(a) without
“definitively resolving” whether the lower (or
higher) sentence would also be supportable under
the guidelines departure authority.10
As one Second Circuit panel recently explained,
“[t]hat some of the facts considered by the court
could also have been potential bases for guidelines
departures, and that the court chose to impose
a non-guidelines sentence without determining
precisely which departures hypothetically could
apply, does not create procedural error.”11
Departures vs. Variances
Nationwide statistics compiled by the U.S.
Sentencing Commission show that, following
Booker, variances quickly become much more
frequent than non-government-sponsored
downward departures, and this gap has continued
to widen in each successive year. In other words,
non-government-sponsored downward departures
tuesday, may 4, 2010
are a dying breed in most circuits across the
country.
Starting close to home, in 2003-2004, preBooker, the non-government-sponsored
downward departure rate was roughly 13
percent in the Second Circuit. In fiscal year
2006, the first full year of statistics post-Booker,
that same below range departure rate in the
Second Circuit dropped to 5.4 percent, but was
more than offset by a new 10.9 percent belowrange variance rate. These trends continued
in each successive year, such that, according
to the most recent statistics published by
the Sentencing Commission in March 2010,
the current Second Circuit rate for this same
type of departure had dropped to 2.3 percent
while the variance rate had increased to nearly
27 percent (the highest of any Circuit in the
nation). The national averages for those years
reflect the same striking trend. Pre-Booker
statistics nationwide showed a non-governmentsponsored below range departure rate between
4 percent and 5 percent.
In the first year post-Booker, this same
downward departure rate decreased to 2.7
percent nationally, while the new below range
variance rate was 6 percent. As of the March
2010 statistics, the non-government-sponsored
downward departure rate nationwide was down
to 1.8 percent, compared to a 12.6 percent
variance rate.12
The Sentencing Commission
The ascendancy of §3553(a) with its broad
variance authority for individualized sentences,
and the striking trend in the district courts to
increasingly rely on that discretion as opposed
to the guidelines, have not gone unnoticed
by the Sentencing Commission. At a recent
public hearing on proposed amendments to the
guidelines, one commissioner described the
Sentencing Commission as being in a fight for
the “hearts and minds” of the federal judges.
Another spoke of the Commission’s need to
“sell” the guidelines.
Nowhere is this more evident than in the
area of departures and variances. For example,
the guidelines (Chapter 5, Part H) have long
stated (without any explanation or rationale)
that a number of offender characteristics—
including mental or physical condition,
military service or other good works, the
circumstances of a defendant’s upbringing, or
age—are “not ordinarily relevant” to whether
a defendant should receive a departure from
the calculated guidelines range. But §3553(a)
states almost the exact opposite—that the
sentencing “shall consider,” among other
things, the “history and characteristics” of the
defendant.
Because this inconsistency often leads district
judges to simply set aside the guidelines when
these kinds of issues are raised, the Sentencing
Commission, just weeks ago, took the significant
step of striking the “not ordinarily relevant”
description of some—but not all—of the specific
offender characteristics that otherwise must be
considered as part of the defendant’s “history
and characteristics.”
Specifically, assuming they are not disapproved
by Congress, come Nov. 1, 2010, the newly
revised Chapter 5, Part H Policy Statements will
read that age, mental and emotional conditions,
physical condition, and military service “may be
relevant” in determining whether a departure is
warranted, “if the characteristic, individually or
in combination with other such characteristics,
is present to an unusual degree and distinguishes
the case from the typical cases covered by the
guidelines.”13
But the Sentencing Commission maintained the
status quo as to other characteristics—including
“[c]ivic, charitable, or public service; employmentrelated contributions; and similar prior good
works”—which accordingly remain in the category
of “not ordinarily relevant in determining whether
a departure is warranted.”14
And even as to those characteristics that now
“may be relevant” to a departure analysis, the
revised Commentary will caution that “to avoid
unwarranted sentencing disparities the court
Statistics compiled by the U.S.
Sentencing Commission support the
view that, if not dead, departures
certainly are a dying breed in the
district courts.
should not give them excessive weight” and that
“[g]enerally, the most appropriate use” of such
characteristics should be limited to non-departure
questions such as where within the applicable
guideline range to sentence a defendant or whether
to impose probation vs. imprisonment.
Suggestions for Practitioners
Returning to where we started, what is
the defense practitioner to do when it comes
to seeking leniency at sentencing—argue
departures, argue variance, or argue both?
Recognizing that this is more art than science,
and that the landscape is rapidly changing, here
are some suggestions:
• Follow the know-your-judge rule. Does your
judge tend to follow the guidelines ranges and
defer to the guidelines policies on departures,
or do you have a judge who is more comfortable
and has a record of giving variances under
§3553(a)? The answer will inform the relative
emphases you put on traditional guidelines
departure analysis vs. the factors set out in
§3553(a).
• Regardless of who your judge is, if your
client falls comfortably within a traditional
departure ground that has strong support in
the case law, and in particular if the appeal for
leniency and relief from the guidelines range
goes directly to the guidelines calculation—for
example, an argument that the total offense level
overstates the seriousness of the conduct or that
the defendant’s criminal history is overstated—
argue for leniency both as a departure and as
a variance (assuming you haven’t waived the
right to argue for a departure and or/variance,
as is sometimes required in connection with
reaching a plea deal).
• With respect to all other appeals for
leniency (that have not been relinquished as
part of any plea)—and particularly with respect
to arguments for leniency based on a defendant’s
personal “history and characteristics” or
broader policy issues—the best approach often
will be to forget about the guidelines and argue
exclusively for a variance under §3553(a). Even
with the most recent amendments concerning
Specific Offender Characteristics that are now
on their way to Congress, the guidelines remain
stacked against granting leniency on these
grounds, and we cannot discern much if any
strategic value in electing to play offense on a
field where you start with one or more strikes
against you (although playing defense on the
guidelines field in response to its invocation
by the government and/or the court may be
unavoidable).
• Pay careful attention to preserving your
appellate record. If at sentencing the court
grants a guidelines departure, urge the judge
to put a finding on the record that the sentence
would be the same, and the same sentence is
being imposed in the alternative, based on a
consideration of the §3553(a) factors. This will
avoid remand and resentencing in the event the
departure is reversed on appeal.
• If on the other hand the sentencing judge
seems disinclined to decide whether a departure
is warranted under the guidelines, and wants to
proceed directly to a 3553(a) analysis, encourage
that approach by reminding the court that the
Second Circuit has held that following such a
protocol is not procedural error and will not
be reversed so long as the judge has consulted
and considered the guidelines.
•••••••••••••
••••••••••••••••
1. A “departure” refers to a sentence below or above the
range as calculated under the sentencing guidelines, based
on the specific framework for departures set out in the
guidelines manual. A “variance” refers to a sentence outside
the guidelines range, based not on the guidelines departure
framework but instead on the broader considerations under
§3553(a).
2.
See
http://www.ussc.gov/2010guid
/20100121_Reader_Friendly_Proposed_Amendments.pdf.
3. 543 U.S. 220, 264 (2005).
4. 552 U.S. 38, 49-50 (2007).
5. 552 U.S. 85, 101 (2007) (citations omitted).
6. United States v. Cavera, 550 F.3d 180, 189-90 (2d Cir.
2008) (citations omitted).
7. United States v. Jackson, 467 F.3d 834, 838-39 (3d Cir.
2006).
8. United States v. Johnson, 427 F.3d 423, 426 (7th Cir.
2005).
9. United States v. Mohamed, 459 F.3d 979, 986-87 (9th Cir.
2006).
10. United States v. Crosby, 397 F.3d 103, 112 n.12 (2d Cir.
2005).
11. United States v. McGowan, 315 Fed. Appx. 338, 341 (2d
Cir. 2009).
12. Statistics available at: http://www.ussc.gov. For the
purposes of this article, we focused on the statistics with
respect to cases where the sentencing court indicated either
a non-government-sponsored downward departure within
the guidelines framework or, instead, a non-governmentsponsored downward variance pursuant to Booker and/
or §3553. The statistics quoted above thus exclude cases
where courts reduced a sentence and indicated both a
guidelines and a non-guidelines (Booker/3553) basis, as well
as the small number of additional departures and variances
that did not indicate either of these reasons.
13. Fifth Revised Proposed Amendment: Specific Offender
Characteristics, discussed in http://www.ussc.gov/PRESS/
rel20100419.htm.
14. Section 3553(a) of course does not permit
consideration of so-called “forbidden factors” such as
race, sex, or socioeconomic status; other aspects of
a defendant’s “history and characteristics”—such as
education, employment record, and family ties—are
not forbidden but have been deemed by Congress to be
“generally inappropriate” sentencing considerations. 28
U.S.C. §§994(d) & (e).
Reprinted with permission from the May 4, 2010 edition of the NEW YORK LAW
JOURNAL © 2010. ALM Media Properties, LLC. All rights reserved. Further duplication
without permission is prohibited. For information, contact 877-257-3382 or reprints@alm.
com. # 070-05-10-12