Advocacy in sentencing critical to achieving best outcome in criminal cases, P.3

We’ve been looking in recent posts at the issue of legal advocacy in sentencing, and specifically knowing how to navigate the Federal Sentencing Guidelines. As we’ve pointed out, the guidelines involve consideration of both the seriousness of the offense and the offender’s criminal history. Together, these factors are used to determine the sentencing guideline range.

Careful consideration of these factors and the proper assignment of numbers is essential to ensure a fair sentence under the guidelines. In addition, though, there is also the possibility of judges imposing a sentence that falls outside the guidelines range. This is known as departure. A sentence may be an upward or downward departure from the guidelines range, and specific factors can influence a judge’s decision in this regard.

With respect to upward and downward departures, judges look at atypical aggravating or mitigating circumstances. These factors are different than the factors considered in the context of determining the seriousness of the offense. The types of circumstances that qualify depend on the facts of the case, and it is important to work with an experienced attorney who knows how to identify these factors and make a good argument for downward departure.

As we’ve mentioned before, the Federal Sentencing Guidelines are not mandatory, but federal district courts are bound to take them into consideration. Sentencing decisions must, in light of the guidelines, be reasonable and can be reversed on appeal for unreasonableness. Courts of appeal may presume that a district court imposed a reasonable sentence, so it takes a strong case for a sentence to be overturned on appeal, but it does happen. Working with an experienced advocate gives a defendant the best chance of achieving a favorable outcome at sentencing and effectively addressing any issues on appeal.


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