If you are being sentenced in federal court, the judge will determine the recommended sentencing range under the United States Sentencing Guidelines. Even after this is done, and assuming there is no mandatory minimum sentence requirement, there are still a number of ways to get a sentence below the recommended range. A federal criminal defense attorney can argue for a variety of downward departures set forth in the sentencing guidelines, each of which can significantly affect the length of the prison sentence ultimately imposed. It is important to note that these arguments must be made at the time of sentencing! After that, it is usually too late. There are also several programs that administered by the Bureau of Prisons that can reduce the amount of time you are actually required to serve on a sentence already imposed. Some of the most common reasons for a downward departure are:
- Fast Track: This is a downward departure that is commonly included in many plea agreements in the District of Arizona, particularly in Tucson. The departure is based on the idea that, by pleading guilty in an expeditious manner, you are relieving the government of the need to litigate the case. This saves the government time and resources, which is important in a border district with one of the highest caseloads in the country.
- Criminal History: Downward departures based on the over-representation of your criminal history may be appropriate when you have older prior convictions or your prior convictions are not as serious as your criminal history category would suggest. This kind of downward departure could allow you to be sentenced based on a lower criminal history category than the one within which you technically fall.
- Aberrant Behavior: This downward departure is appropriate if you have committed only a single criminal act of limited duration that was committed without significant planning and “represents a marked deviation by the defendant from an otherwise law-abiding life.” Of course, to be eligible for this departure you must fall within the lowest criminal history category. This departure is also not available for certain types of offenses, including serious drug offenses and offenses involving serious injury, death, or the use of a firearm.
- Substantial Assistance to the Government: This type of departure can occur either before or after sentencing if you provide the government with information or some other service that substantially assists the government in an investigation (just remember, it’s usually not a good idea to get involved in something like this without the assistance of an attorney). This departure generally requires a motion from the government stating that such assistance has occurred.
- Diminished Capacity: A downward departure may be appropriate if you committed an offense while suffering from a significantly reduced mental capacity and this reduced mental capacity substantially contributed to the commission of the offense. However, you cannot argue for a diminished capacity departure when the reason for your reduced mental capacity was your voluntary use of drugs or alcohol.
- Coercion and Duress: If you committed an offense because of serious coercion or duress, you may have a legitimate defense at trial. This is a very difficult defense to assert, however, because it is often difficult to prove — you must show that you had a reasonable fear that immediate, serious bodily harm or death would occur if you did not commit the offense. If the circumstances of your coercion or duress do not amount to a complete defense, they may still be enough for a downward departure.
- General Mitigation: A federal court can depart downward from the applicable guideline range for any mitigating circumstance that has not been adequately taken into consideration by the sentencing guidelines. These circumstances can include virtually any reason why the crime was not as serious as the guideline range reflects or why the history or characteristics of the defendant were such that a sentence below the guideline range is appropriate. The only cases in which a downward departure for general mitigation is not available are child crimes and sexual offenses.
There are also several common programs that can result in a reduced sentence after a defendant has been sentenced. These programs and their corresponding sentence reductions are administered by the Bureau of Prisons (BOP). The most common of these are:
- 500 Hour Residential Drug Treatment Program: If eligible, your prison sentence can be reduced by up to 12 months by completing the 500-hour Residential Drug Abuse Treatment Program (RDAP). The actual reduction depends on how much time you have left on your sentence by the time the program is completed (there’s always a waiting list for entry into the program). The average reduction is about 8 months. It is best to get the sentencing judge to recommend you for this program at the time of sentencing. There are some strict eligibility requirements to get a sentence reduction as a result of completing the program: (1) you must not have a conviction for a violent offense (any offense that involved the actual, attempted, or threatened use of physical force or a serious potential risk of physical force), a firearms or explosive device offense, or an offense involving homicide, forcible rape, robbery, aggravated assault, arson, kidnapping, or sexual abuse of a minor; (2) you must have a verifiable substance abuse problem and desire treatment; (3) you must be a citizen of the United States; (4) you must have at least 24 months remaining on your prison sentence; and (5) you must not have already received a RDAP sentence reduction in the past.
- Good Conduct Time Credit: Most inmates can receive this credit for exemplary compliance with institutional disciplinary regulations, although convictions for certain offenses can prohibit an inmate from receiving this credit. The reduction in time can be as much as 54 days per year served.
- Transfer to Residential Re-entry Centers (Halfway Houses): The BOP often transfers inmates to residential re-entry centers, and sometimes even home detention, near the end of their prison sentences. This is done to assist in their reintegration into society. An inmate can spend up to 12 months of their sentence in a residential re-entry center, but the average is about 4 months.
There are numerous arguments that can be made for a sentence below the recommended guideline range — many more than are listed above. The availability of various departures and variances depends on the specific facts of a particular case. This is one of many reasons why it is so important to find an experienced federal criminal defense attorney to represent you in federal court.
* This blog is published by Tucson federal criminal defense attorney Nathan D. Leonardo. Nothing on this website is intended to create an attorney-client relationship. The information provided herein does not constitute legal advice, but is for general information purposes only. If you have a legal question, you can contact us online or call (520) 314-4125.