FEDERAL SENTENCING: A GOOD DEPARTURE IS HARD TO BEAT

The central purpose for the enactment of the United States Sentencing Guidelines was to obtain uniformity in sentencing on a national level. While the Guidelines were intended to eliminate Judge’s personalities and personal proclivities as well as eliminate disparities in regions or districts, the simple fact of the matter is that there are some districts in which downward departures are the rule and other districts where downward departures are either the exception or just never done. Even within districts, the guidelines have done nothing to address the disparity among different judges with regard to their views of downward departures in similar cases. In addition, federal prosecutors are including in written plea agreements a stipulation that no additional downward departure beyond those concessions or agreements contained in the written plea agreement can be sought by the Defendant in what is an obvious effort to eliminate what has certainly become a very fruitful area for creative lawyering in federal sentencing proceedings.

In an effort to put together a meaningful presentation for this seminar, I sought out success stories from my partners and colleagues (Miami criminal defense lawyers), both in the Southern District of Florida, my home court, and from around the country. While the grounds for downward departure are limited only by one’s imagination, here are some departure ideas that have worked successfully and which you might apply in your federal cases in which your client is facing sentencing pursuant to the United States Sentencing Guidelines.
I. Extraordinary post offense rehabilitation.
Unquestionably, the heartland criminal case in federal court is a case in which the arrest and prosecution of the defendant follows very shortly after the offense conduct. There are, however, many federal criminal prosecutions that are not initiated, often times, until the eve of the running of the statute of limitations. In those circumstances, pose the question: What has the defendant done with his or her life subsequent to the offense conduct but prior to the prosecution being initiated?

In United States of America vs. Alexander Chiong, United States District Court for the Middle District of Florida, Tampa, Division, Judge Moody, the defendant was indicted in a significant cocaine distribution case. The Indictment was returned four years and eleven months after the last distribution. There was almost an additional full year before the Defendant came before the Court for resolution of those charges. The amount of cocaine exceeded 150 kilograms (in fact, the government alleges 1,500 kilograms) and the plea agreement provided for stipulations regarding the amount of cocaine, acceptance of responsibility, role in the offense and an agreement that no downward departures pursuant to Chapter 2 of the Sentencing Guidelines would be permitted. In the roughly five years that had transpired since the offense, there was no evidence that the defendant had continued in the drug trade; the defendant worked at extremely laborious jobs in order to provide modest support for his family including lawn maintenance (pushing a lawnmower), pressure cleaning of homes and businesses and auto detailing. In addition, the defendant coached soccer, football and baseball teams that his children were involved in at local parks resulting in the usual plaques and certificates of appreciation given out by the local optimist club, etc. The motion for downward departure was based upon the defendant’s claim that his post offense conduct took the case outside of the heartland of federal drug prosecutions and warranted a downward departure based upon this "extraordinary post offense conduct." The pre-sentence investigation report accurately concluded that the adjusted offense level required a sentence between 135 and 157 months. The court was persuaded that the defendant was not all bad as the government had alleged and that his post offense conduct warranted a four level downward departure resulting in a 97 month sentence.