Downward and upward departures affect sentencing in embezzlement cases in the same way they affect sentencing in most other federal cases. Once the guideline range is determined; a review is made of the applicable departures available in a particular case. If the facts of a case match up to any of the departures, arguments are made to depart either upward or downward from the applicable guideline range.
An upward departure is a guideline mandated rule that increases the recommended sentence; giving the judge the authority to go above the applicable guideline range. A downward departure gives the judge the authority to go below the applicable guideline range. To learn more about sentencing in DC federal embezzlement cases or to discuss your case, call and schedule a consultation today.
A judge is required by law to consider all relevant 18 USC § 3553 (a) factors. This includes the need for the sentence imposed to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense. It also requires the judge to consider whether the sentence imposed adequately deters criminal conduct; whether it protects the public from further crimes of this particular defendant; and whether the sentence provides the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner.
Also applicable for the judge’s consideration are the nature and circumstances of the offense and the history and characteristics of the defendant. The judge considers these factors, and others, when determining a minimally sufficient sentence for the defendant.
The courts are supposed to impose a minimally sufficient sentence to every defendant. A minimally sufficient sentence is a sentence that is sufficient but not greater than necessary to meet the requirements in 18 USC § 3553 (a). All sentences imposed against defendants are theoretically minimally sufficient to carry out the appropriate purposes of sentencing.
Reasonably, when you think about this situation, you are talking about a sentence that is the lowest possible to be effective. You cannot give someone more time than is necessary in any case. That would be an illegal sentence.
There are a variety of mitigating circumstances in a case ranging from aberrant behavior to duress. For example, someone facing physical or financial harm can be forced to commit an offense. The law tends to mitigate such situations with a downward departure. Another example is if someone is a first time offender and the offense is a deviation from a life that was lived in compliance with the law and the rules.
Another example that may warrant a downward departure is diminished capacity. This is a situation where someone committed an offense while suffering from a reduced mental capacity.
Voluntary disclosure is another mitigating circumstance. It occurs when a defendant voluntarily brings the case to the attention of the government.
A defendant who chooses to plead guilty in a case is usually given credit for their cooperation in the prosecution because it saves the government the resources of having to prosecute the case through a trial.
When there is an un-coerced plea bargain, the downward departure that is possible is usually a three-level reduction in the offense level. Sometimes, there is also an opportunity to cooperate with the government in the prosecution of others. If that is the case, there can be a downward departure motion to further reduce the sentence for substantial assistance.
Sentencing is an opportunity for advocacy on behalf of the client that has a direct impact on the amount of time someone might spend in prison. A downward departure is very important and should be filed when appropriate because it can possibly secure a lower sentence for the defendant. While the government may seek to argue for upward departures, if applicable, a defense attorney can argue against that upward departure and argue for a downward departure in a case.