This is our latest installment in a series of posts dealing with the issue of downward departures according to the Federal Sentencing Guidelines Manual. In this final post in the series, we’d like to comment briefly on how a criminal defense attorney can advocate for a defendant with respect to downward departures.
First of all, strong advocacy during the sentencing process is critical for federal defendants. As we mentioned in part one of this series, the guidelines are not mandatory for judges, but rather advisory. Putting forward a strong case for a sentence below the guideline range, when appropriate, requires a firm grasp of the law and zealous advocacy. Judges usually don’t grant departures without some serious convincing.
The need for strong advocacy extends beyond the sentencing process, to appeals as well. Sentencing decisions are subject to review on appeal, and judges who abuse their discretion with respect to the guidelines stand the risk of having their decisions reversed, even if this doesn’t happen often.
Federal case law, according to the U.S. Sentencing Commission, holds that when a sentencing decision is within the sentencing guideline range, there is a presumption of reasonableness. A judge who makes an unreasonable departure from the sentencing guidelines, though, may have his or her decision overturned. A skilled appellate attorney knows what factors to look for in identifying abuse of discretion as well as identifying when a judge’s departure from the guidelines was reasonable given the circumstances of the case.
Though are no guarantees of a specific outcome in any criminal case. For defendants, though, it is important to work with an experienced attorney the whole way through, to ensure they make a strong case for lenience during the sentencing process and, if necessary, on appeal for the reasonableness of a downward departure or the unreasonableness of an upward departure, as the case may be.