1.) The court should apply the sentencing guidelines to establish the sentencing guideline range.
2.) The court should determine whether a departure consistent with the guidelines applies.
3.) The court should determine whether a variance (a sentence outside the advisory guideline system) is warranted under the authority of the sentencing statute.
Even though the statute says that the court shall impose a sentence of the kind, and within the range, referred to in subsection (a)(4) unless the court finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described. The Booker case changed all that. Judges must take the Sentencing Guidelines into consideration, but are free to impose the sentence they think is appropriate.
Here is the statute you need to be familiar with. It’s 18 USC 3553:
(a) Factors To Be Considered in Imposing a Sentence.— The court shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of this subsection. The court, in determining the particular sentence to be imposed, shall consider—
(1) the nature and circumstances of the offense and the history and characteristics of the defendant;
(2) the need for the sentence imposed—
(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the defendant; and
(D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner;
(3) the kinds of sentences available;
(4) the kinds of sentence and the sentencing range
(5) any pertinent policy statement— . . .
(6) the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; and
(7) the need to provide restitution to any victims of the offense.
Click here to read selected departure and variance decisions.
If you or someone you know has been arrested and is facing federal charges, it is crucial to completely understand their situation so that there are no surprises later. I would be more than happy to meet with you to discuss your particular concern. Please, contact me.