How do you get a variance below sentencing guidelines?
A judge is free to sentence a defendant below guidelines. How do you get them to do it? A lawyer must carefully craft a highly persuasive, credible, and compelling argument for a downward variance.
Judges Can Sentence Above or Below Guidelines
The United States Supreme Court ruling that the United States Sentencing Guidelines (USSG) are unconstitutional has opened the door for judges to use their discretion to hand out sentences that are meaningfully tailored to weigh the defendant’s individual circumstances with the interests of society and justice. Judges still use the guidelines, but they are no longer mandatory. In the past, a sentencing judge could deviate below the guidelines under extraordinary circumstances. Today, judges can more freely find that a variance below sentencing guidelines is justified. The 2017 SCOTUS case of Beckles v. United States will likely significantly impact how judges impose sentences going forward.
The Supreme Court ruled that part of the sentencing guidelines, called the Residual Clause, is sufficiently defined to be constitutionally valid. In making this ruling, the court pointed out that some vagueness can be excused because the guidelines are not mandatory. The Residual Clause is contained in a part of the guidelines frequently referred to as the career offender guideline. Under this provision, a guideline range for a defendant with certain prior convictions for “crimes of violence” would be arbitrarily increased to be at or near the maximum sentence authorized by law.
As federal criminal defense attorneys, the lawyers with LEWIS & DICKSTEIN, P.L.L.C., have a track record of routinely and successfully making arguments for sentence variances below the guidelines. By following the logic of the Beckles‘ decision, increased support is given to arguments that a prior conviction should not trigger the Residual Clause.
Sufficient But Not Greater Than Necessary
An example of an argument that can be made at sentencing is that a sentence at or near the bottom of the standard guidelines is sufficient but not greater than necessary. The USSG’s provide that a sentence imposed by a judge should be sufficient but not greater than necessary. The guidelines were designed to provide sentence ranges that consider a defendant’s likelihood of recidivism or reoffending. Because the Residual Clause does not take any such data or factors into account, an argument can be made that the ordinary guidelines are a better measure of what sentence is sufficient but not greater than necessary. A judge can find that a variance below the Sentencing Guidelines is appropriate if the Residual Clause results in an unfairly high recommended sentencing range.
The Residual Clause requires that the prior offense contain an element of force. This is not as simple as it may seem, and given the holding in Beckles, the sentencing court should feel more empowered to reject a prior offense based on this requirement. The phrase physical force means that it must violent or strong physical force capable of causing pain or injury. The force must be intentional. By closely examining the elements of the prior crime, a defense lawyer may be able to argue that the law does not fulfill this requirement.
To determine if a prior offense qualifies as a “crime of violence,” courts have routinely looked to see if the elements from the previous offense match the generic definition of an offense enumerated in the Residual Clause. A defense lawyer may find a discrepancy by closely examining what actions would be a crime under the original law and then comparing that to the generic definition. If there is a difference, the defense lawyer can argue that the prior should not trigger the Residual Clause.
Complicated? Yes. Are there lawyers who routinely persuade judges to order lenient sentences? Yes.
Does all of this sound complicated? If you think it does, you’re right. Most criminal defense lawyers struggle with understanding these complex laws and have difficulty persuasively arguing for sentences below the sentencing guidelines. So why should you consult with LEWIS & DICKSTEIN, P.L.L.C.? Over the course of decades of practicing criminal defense, we have developed an in-depth knowledge of the law that allows us to be highly effective when advocating for a reduced sentence. If you are charged with a felony and want a lawyer who gives you the best chance of getting a variance below guidelines at sentencing, you should call LEWIS & DICKSTEIN, P.L.L.C. We will take the time to talk with you, answer your questions, and address each of your concerns. Our lawyers will leave no stone unturned when devising a strategy to persuade a judge to order a sentence below guidelines.
Call us today at (248) 263-6800 for a free consultation or complete a Request for Assistance Form. We will contact you promptly and find a way to help you.
We will find a way to help you and, most importantly,
we are not afraid to win!
