How Low Can You Go in Federal Court? Downward Departures in Sentencing

By: Mark Eiglarsh

Introduction to the Sentencing Guidelines

The creation of the Federal Sentencing Guidelines for sentencing in Federal criminal court have dramatically affected the treatment of those accused of a crime in Federal Court. Passed by Congress in 1987 and signed into law by President Reagan, the “Guidelines,” have significantly limited the discretion that Federal Judges used to have in sentencing of criminal cases. Instead, judges are bound by a sizeable volume of rules that, in most instances, dictate that the maximum and minimum length of potential prison terms fall into a mathematical grid, or range. The range is determined by a combination of the charges against the defendant and that individual’s past criminal record. This formula produces a point score that translates into a sentencing range. When enacting the changes, the Sentencing Commission noted “the difficulty of forseeing and capturing a single set of guidelines that encompasses the vast range of human conduct potentially relevant to a sentencing decision.” Therefore, they enabled judges to consider motions for “downward departures,” as a mechanism by which the sentencing court can legally impose a sentence below the guideline sentencing range. The Sentencing Guidelines “place essentially no limit on the number of potential factors that may warrant a departure.” Koon v. United States, 518 U.S. 81, 106 (1996).

Examples of Downward Departures

The two primary types of downward departures are found under sections 5K1.1 and 5K2.0. Section 5K1.1 permits a court to depart downward due to a defendant’s substantial assistance to the government and section 5K2.0 permits the court departures based on factors specifically listed in the guidelines or "unmentioned" factors which are not adequately considered by the Guidelines. 5K1.1 motions can only be filed by the government and acceptance of the motion rests with the discretion of the sentencing judge. U.S. v. Mariano, 983 F.2d 1150,1155 (1993). Providing substantial assistance, or what is more commonly referred to as "cooperating with law enforcement," is a departure that is encouraged in the guidelines. If a court grants the government's 5K1.1 motion, the court is free to depart more or less than either the government or the defense seeks. In order to determine how significant the court should depart from the guideline sentencing range, the court will evaluate, among other things, the nature and extent of the defendant's cooperation. After granting a 5K1.1 motion, the court can, as has been done in rare instances, impose probation in a case where a defendant is facing a guideline life sentence. Under section 5k2.0, a court may grant a motion for a downward departure if the case is "unusual enough for it to fall outside the heartland of cases in the guidelines." Koon, 518 U.S. at 92. The court in Koon explained that the Sentencing Guidelines "place essentially no limit on the number of potential factors that may warrant a departure." Here are just some of the numerous examples.

A departure may be warranted if the court finds that the defendant's behavior is considered "aberrant conduct." “Aberrant conduct” has been defined as “a single criminal occurrence or single criminal transaction that was committed without significant planning, was of limited duration, and represented a marked deviation from an otherwise law abiding life.” Examples where the court has departed downward include a defendant who stole $80,000 which he received by bank error; where a law abiding immigrant possessed a sawed-off shotgun to protect his family against predators and was unaware the weapon was illegal; possession of crack cocaine by defendant was found “out of character” for defendant who committed offense “in a moment of financial weakness” and “unusual temptation” and demonstrated “tremendous remorse.”

The court may also depart downward if it finds that the defendant has an excellent employment history. In U.S. v. Thompson, 74 F.Supp2d 69 (1999), the court departed from 87 months to 60 months when employment history and family ties were deemed “extraordinary.” In that case, the court found that “not only did the defendant exhibit a sustained commitment to his family dating back to the instant he became a father, he consistently worked to provide for them.” In a similar case, the court found a three level departure warranted after considering the defendant’s “long impressive work history…where good jobs are scarce.” U.S. v. Jones, 158 F.3d 492 (1998).

Courts have upheld downward departures in order to equalize sentencing disparities between co-defendants. For example, In U.S. v. Daas, 198 F.3d 1167 (1999), the defendant argued for a departure based on a disparity between his sentence and that of his co-defendants who received tremendous sentencing reductions after cooperating with the government. In permitting the departure, the court found “Downward departure to equalize sentencing disparity is a proper ground for a departure under the appropriate circumstances.”

Some other grounds for downward departure include, however, are in no way limited to the following: loss table overstates amount of loss or seriousness of offense; age; to enable defendant to be eligible for Boot Camp; sentence would have an extraordinary effect on innocent family members; defendant’s extraordinary mental and emotional condition; extraordinary military service; duress or coercion; the totality of the circumstances.


With the passing of the Federal Sentencing Guidelines, Congress and the president ensured significant changes to sentencing in federal court. The challenge for defense attorneys, among others, is to uncover basis for downward departure when they apply. Through the years, the case law has evolved to where the factors which may warrant downward departures are potentially infinite. Courts have made it clear that the congressional purpose of the Guidelines was not to withdraw all sentencing discretion from the United States district judge.

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