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Flashcards in Federal - Non-Guideline Sentences Deck (22)
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For a departure, must the CRT only consider "extraordinary circumstance"?

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


What should the CRT consider for determining whether to depart?

"make individualized assessment of the fats of each case"


How do "Variances" and "Departures" differ?

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.”


What are the "prohibited factors" for variance or departure?

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


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

Roper v. Simmons, U.S. 2005


Why should age be considered for variance ?

Younger - less culpable, higher likelihood of reform
Older - recidivism rates decline dramatically


Can education be considered departure?

POST-offense education is a good factor


Can mental illness be considered for departure?

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


Can coercion or duress be used for departure?

Yes. 5K1.12


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

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


Can the Victim's wrongful conduct prompt a departure?

Yes. 5K2.10
Vic. had it comin'. Provocation.


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

Yes. 5H1.4
An alternative to incarceration is recommended if i t would more effectively treat a D's condition


Can a CRT consider employment record for departure?

VARIANCE more so than departure.
But see 5H1.5


Can a CRT consider family ties and responsibilities?

The commission discourages this, but YES for variance.


Can CRT consider Military service?

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


Can CRT consider Civic and Charitable activity?

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


Can the CRT consider "Aberrant Behavior"?

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)


How does voluntary disclosure of other crimes fit into sentencing?

Commission encourages departure for voluntary disclosure of other crimes


Alien status as basis for sentence below guidelines?

Yep, "banishment" is a harsh collateral consequence (Padilla), so take it easy on 'em.


What can cause an upward departure?

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)


What are "factors not adequately considered"?

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


Deconstructing Guidelines, what does that mean?

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