Federal - Departure and Variance

Question 1

When is an upward departure warranted?

Answer 1

If “reliable information indicates that the criminal history category substantially under-represents the seriousness of the defendant’s criminal history or the likelihood that the D will commit other crimes”

Question 2

When is a downward departure warranted?

Answer 2

If “reliable information indicates that the criminal history category substantially over-represents the seriousness of the D criminal history or the likelihood that the D will commit other crimes.”

Question 3

Examples of reasons for upward departure:

Answer 3

1. foreign or tribal convicting not used for computing crim, history points
2. one prior sentence imposed based on multiple crimes
3. similar conduct adjudicated in civil proceeding
4. offense committed while D pending trial or sentencing
5. similar adult conduct not resulting in conviction (NOTE: must be similar)
6. D received an EXTREMELY lenient sentence before
   Remember, nature rather than numbers is more important