Federal sentencing guidelines and downward departures, P.2

In our previous post, we began looking at the issue of departures from federal sentencing guidelines. Departures, as we noted, can be either downward or upward depending on the circumstances. Downward departures, to be sure, present an opportunity for advocacy in criminal defense, but obtaining them is not a free-for-all. There are guidelines regarding when a departure may be appropriate, and prosecutors often ask for upward departures when they are able to do so. Here we’ll take a brief look at the issue.

Before we talk about departures, though, we want to briefly discuss the factors that go into coming up with a sentencing range under the guidelines. Understanding these factors will help explain how judges may arrive at a different sentencing result, and how criminal defense attorneys advocate for offenders in the sentencing phase. 

The basic scheme is fairly easy to understand: sentencing ranges are based on the seriousness of the offense and the offender’s criminal history. The guidelines work on a system which recognizes 43 levels of offense seriousness, with the higher numbers represented more serious crimes. Different categories of crime are assigned a base offense level which serves as a starting point for determining the seriousness of the offense in each case. Along with the base offense level, specific offense characteristics are considered, which are the factors unique to each particular case.

Fraud, for example, has an assigned base offense level of 6 or 7, depending on the specific statute under which the conviction was obtained. That base offense level can be increased by up to 30 points, though, depending on the amount of economic loss caused by the offense. The number of victims affected by the offense can also increase the seriousness of the offense by 2 to 6 points. Other factors that can contribute to the seriousness of the offense include: fraud against a government health care program; risk of death or serious bodily harm; and unauthorized transfer or use of identification information.

In our next post, we’ll continue with this topic, speaking specifically about what factors could justifiably lead to both upward and downward departure in fraud cases.

Source: U.S. Sentencing Commission, “An Overview of the Federal Sentencing Guidelines,” Accessed Jan. 16, 2015.

U.S. Sentencing Commission, “Analysis of Fraud Offenses,” Accessed Jan. 16, 2015.

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