downward departure

Downward departures are sentences outside of the US guidelines range which are given power and effect via policy statements in the sentencing guidelines manual. In Congress's Sentencing Reform Act, and as the Guidelines Manual, it is impossible to adhere to a rigid set of guidelines intended to encompass all ranges of individual conduct relevant to a sentencing framework. Downward departures were incorporated into the guidelines framework to allow for flexibility to permit individualized sentences if the fact pattern allows. Downward departures covers conduct with mitigating or aggravating factors that is not already accounted for in general sentencing practices. Downward variances are sentences outside of the guideline range that are not imposed within the guidelines framework. Courts may impose sentences that vary from the guidelines because while the guidelines remain the starting point and initial starting places in sentencing practice, a court may determine that a sentence outside of the guidelines framework is warranted based upon the statutory sentencing factors under 18 U.S.C. § 3553(a). Because downward departures are part of the guidelines framework, while downward variances are not, sentencing typically first calculate any departures before considering whether to vary. Although departures and variances have the same ultimate result they are treated differently procedurally when it comes to notice and appellate review.




In addition to the nature and circumstances of the offense and defendant's history and characteristics, the Court must consider the “need for the sentence imposed” to serve the punitive, deterrent, protective and rehabilitative purposes of sentencing, the types of sentences available, the need to avoid unwarranted disparity and, of course, the advisory guidelines range. The guidelines are an important consideration, but they are not the only consideration in determining the appropriate sentence. Gall v. United States, 552 U.S. 38, 49 (2007). The guidelines reflect a approximation of sentences that might achieve § 3553(a)’s import. Kimbrough v. United States, 552 U.S. 85, 109 (2007) A sentencing court may not presume that the Guidelines range is reasonable. Gall, 552 U.S. at 50. Rather, the sentencing court must make an assessment based on the facts presented. A court’s final determination must reflect § 3553(a)’s overarching instruction to impose a sentence sufficient, but not greater than necessary to accomplish the sentencing goals advanced in 3553(a)(2), namely, retribution, deterrence, incapacitation, and rehabilitation. 
In making these individual assessments, sentencing courts are free to disagree with the guidelines’ recommended sentence in any particular case, and may impose a different sentence based on a contrary view of what is appropriate under § 3553(a). This includes the liberty to disagree with “policy decisions” of Congress or the Sentencing Commission. Pepper v. United States, 131 S. Ct. 1229, 1241 (Mar. 2, 2011) Spears v. United States, 129 S. Ct. 840, 843 (2009) held that in appropriate cases a court may impose an alternative sentence based on a disagreement with the Commission’s views. Likewise, a court may issue an alternative sentence when it opines that the Commission’s guideline's reasoning rests on unconvincing policy rationales not reflected in the sentencing statutes and the courts may vary from particular guideline because of policy disagreement with that guideline.