Federal - Non-Guideline Sentences

Question 1

For a departure, must the CRT only consider “extraordinary circumstance”?

Answer 1

No, Gall and Kimbrough killed “extraordinary circumstances” as acknowledged in the 5th Cir. in Simmons.

Question 2

What should the CRT consider for determining whether to depart?

Answer 2

“make individualized assessment of the fats of each case”

Question 3

How do “Variances” and “Departures” differ?

Answer 3

A Guidelines ‘departure’ refers to the imposition of a sentence outside the advisory range or an
assignment of a criminal history category different than the otherwise applicable category made
to effect a sentence outside the range. Importantly, a departure results from the district court’s
application of a particular Guidelines provision, such as § 4A1.3 or § 5, Part K. A ‘variance’
refers to the selection of a sentence outside of the advisory Guidelines range based upon the
district court’s weighing of one or more of the sentencing factors of § 3553(a). While the same
facts and analyses can, at times, be used to justify both a Guidelines departure and a variance, the
concepts are distinct.”

Question 4

What are the “prohibited factors” for variance or departure?

Answer 4

Race, sex, national origin, creed, and socio-economic status - Koons v. U.S. 1996

Question 5

What case states it’s unconstitutional for death penalty if offense committed before D turned 18?

Answer 5

Roper v. Simmons, U.S. 2005

Question 6

Why should age be considered for variance ?

Answer 6

Younger - less culpable, higher likelihood of reform

Older - recidivism rates decline dramatically

Question 7

Can education be considered departure?

Answer 7

POST-offense education is a good factor

Question 8

Can mental illness be considered for departure?

Answer 8

Yes, diminished capacity is broader than insanity defense - so level of culpability impacted

Question 9

Can coercion or duress be used for departure?

Answer 9

Yes. 5K1.12

Question 10

Can there be a departure based upon D’s perception that offense avoided greater harm?

Answer 10

Yes, 5K1.11 - CRT should consider whether circumstances diminish societies interest in punishment

Question 11

Can the Victim’s wrongful conduct prompt a departure?

Answer 11

Yes. 5K2.10

Vic. had it comin’. Provocation.

Question 12

Can the court consider Physical Condition, including drugs and alcohol dependency?

Answer 12

Yes. 5H1.4

An alternative to incarceration is recommended if i t would more effectively treat a D’s condition

Question 13

Can a CRT consider employment record for departure?

Answer 13

VARIANCE more so than departure.

But see 5H1.5

Question 14

Can a CRT consider family ties and responsibilities?

Answer 14

The commission discourages this, but YES for variance.

Question 15

Can CRT consider Military service?

Answer 15

Yes. In Rita corut said yes, and 5H1.11

Question 16

Can CRT consider Civic and Charitable activity?

Answer 16

Limited, this is thought to not be available to the poor

Question 17

Can the CRT consider “Aberrant Behavior”?

Answer 17

In “EXTRAORDINARY cases” BUT Commission “prohibits” departure if offense involved: 1. SBI; 2. firearm or dangerous weapon; 3. serious drug trafficking; 4. D had more than 1 crim. history point; 5. D had prior felony (whether countable)

Question 18

How does voluntary disclosure of other crimes fit into sentencing?

Answer 18

Commission encourages departure for voluntary disclosure of other crimes

Question 19

Alien status as basis for sentence below guidelines?

Answer 19

Yep, “banishment” is a harsh collateral consequence (Padilla), so take it easy on ‘em.

Question 20

What can cause an upward departure?

Answer 20

1. death or physical injury;
2. extensive psychological harm;
3. extreme conduct (i.e. torture, brutal)
4. offense to conceal another offense;
5. High capacity semi-automatic weapon
6. Generally consider ACTUAL seriousness
7. Consider dismissed or reduced charges based on plea bargain - must be nexus (even remote)

Question 21

What are “factors not adequately considered”?

Answer 21

1. Less serious than “run of the mill” crimes;
2. Extraordinary acceptance of responsibility;
3. Post-offense and post-conviction rehab
4. Variances are only limited by attorney creativity

Question 22

Deconstructing Guidelines, what does that mean?

Answer 22

Some Guidelines are not based on any empirical evidence or data (i.e. crack cocaine, career offender, and child porn); These result in harsher sentences than maybe should be allowed, so variance may be called for