Part 2 – Federal Sentencing – Variances vs. Departures

In my previous blog I discussed an overview of the federal sentencing system and the concept of departures. In this 2nd part of that series, I will be focusing on the concept of variances.

Why is a variance different than a sentencing departure?

Unlike departures, a federal court isn’t bound by a specific set of considerations in its decision to grant a variance. Federal courts have held that variances aren’t’ subject to the guideline analysis for departures and in some situations a prohibited ground for departure is a valid basis for a variance.  

Further, unlike a departure, variances aren’t subject to a notice requirement and as court may grant a departure and a variance in the same sentence. For example, a court may grant a departure under Section 5K for substantial assistance and a variance for a defendant’s history and characteristics, which normally, in and of themselves, do not serve as an adequate basis for a departure. Variances are covered in Section 3553(a) which lists a series of factors that a court should consider for a variance. It is important to understand that variances do not only go in favor of the defense, they are also applicable for the prosecution’s case for aggravation. 

The following are factors a court should consider for upward or downward variances: 

• The nature and circumstances of the offense and the history and characteristics of the defendant 
• Defendant’s health problems 
• Family circumstances 
• The nature of the offense 
• Cooperation with the government 

• The need for the sentence to reflect the seriousness of the offense 
• The need for the sentence to promote respect for the law