Variances

Federal sentencing variances allow judges to deviate from the suggested range of the Federal Sentencing Guidelines based on broader factors related to the specific circumstances of the case. Unlike departures, which are tied to specific guideline provisions, variances are based on a judge’s discretion and their interpretation of the broader statutory framework for sentencing. This flexibility enables judges to craft sentences that align more closely with justice in individual cases.

What is a Sentencing Variance?

A sentencing variance occurs when a judge imposes a sentence that falls outside the guideline range after considering the factors outlined in 18 U.S.C. § 3553(a).

The factors that considered when it comes to regarding a variance include:

• The nature and circumstances of the offense.
• The history and characteristics of the defendant.
• The need for the sentence to reflect the seriousness of the offense, promote respect for the law, and provide just punishment.
• The need for deterrence and protection of the public.
• The need to provide the defendant with necessary training, medical care, or other correctional treatment.
• The kinds of sentences available.
• Avoiding unwarranted sentencing disparities.
• Providing restitution to victims.

Variances are as upward (resulting in a longer sentence) or downward (resulting in a shorter sentence). They are designed to give judges the discretion to impose sentences that better reflect the unique circumstances of a case when strict adherence to the guidelines might result in an unjust outcome.

The Impact of **United States v. Booker** on Variances

The U.S. Supreme Court’s decision in United States v. Booker (2005) significantly the workings of Federal Sentencing Guidelines. Before this ruling, the guidelines were mandatory, leaving little room for deviation. However, Booker held that mandatory guidelines violated the Sixth Amendment, which guarantees the accused the right to a jury trial.

After the Booker decision, the guidelines became advisory, as opposed to mandatory. Judges must still consult and consider the recommended sentencing range, but they now have discretion to impose a sentence that lies outside the guidelines if they believe it is warranted. This shift in allowed proceedings in opened the door for more frequent use of variances in federal sentencing.

When is a Variance Appropriate?

A variance may be appropriate when the guideline range, even when correctly applied, does not adequately capture the seriousness of the offense or the characteristics of the defendant.

Here are some common circumstances in which variances may be granted:

1. Nature and Circumstances of the Offense: In cases where the offense is either more or less severe than the typical crime covered by the guideline range, a variance may be appropriate. For example, in a white-collar crime case, if the defendant’s fraud scheme was particularly elaborate or caused significant harm to victims, the judge might grant an upward variance. Conversely, if the defendant played only a minor role in a conspiracy, a downward variance might be warranted.
2. History and Characteristics of the Defendant: Judges may also consider the defendant’s personal history, including their background, family circumstances, and attempts at rehabilitation. If the defendant has shown significant remorse, taken responsibility for their actions, or made efforts to improve their life after the crime (e.g., through education or treatment), the judge may grant a downward variance. On the other hand, a defendant with a troubling history of similar criminal conduct may face an upward variance.
3. Deterrence and Protection of the Public: The need to deter future criminal conduct or protect the public is also key in deciding whether a variance is appropriate. In some cases, the guideline range may not provide adequate deterrence, especially if the offense is part of a broader pattern of repeat offenses and criminal behavior.) In such situations, a judge might impose a harsher sentence than the guidelines suggest. Conversely, if the defendant poses little risk of reoffending or does not present a danger to the public, a request for a downward variance could be accepted.

The Process of Seeking a Variance

Both the defense and prosecution can seek a variance by presenting arguments to the judge before sentencing. This is typically done through a sentencing memorandum, where the parties outline why the guideline range is either too harsh or too lenient based on the § 3553(a) factors.

For defense attorneys, arguing for a variance often involves presenting mitigating factors that make the case stand out from the typical scenario anticipated by the guidelines. This could include demonstrating that the defendant has taken meaningful steps toward rehabilitation, such as undergoing substance abuse treatment, enrolling in educational programs, or showing remorse through actions like restitution to victims.

Prosecutors, on the other hand, may argue for an upward variance if they believe the guideline range fails to account for the severity of the crime or the defendant’s likelihood of reoffending.

Judicial Discretion and Variance Decisions

Ultimately, the decision to grant a variance is up to the judge, who must explain the reasoning for the variance on the record. Judges are not bound to follow any recommendations from the parties, and they have the discretion to weigh the factors differently depending on the specifics of each case.

While appellate courts review sentencing decisions, they afford significant deference to a trial judge’s decision to grant or deny a variance, as long as the judge adequately explains how the § 3553(a) factors listed above influenced their decision. This allows judges to craft sentences that better clarify the unique circumstances of both the offense and the defendant.

Though variances can lead to longer or shorter sentences, they serve the essential purpose of ensuring that justice is tailored to the individual case, rather than treating all offenders uniformly based on generalized guidelines.

For attorneys, understanding when and how to argue for a variance is a key skill in achieving a fair outcome for their clients. Federal Defense Attorney Nate Crowley is one of these lawyers who possesses this key skill, ensuring that your unique case is analyzed, justified and heard by the judge.

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