Variance Below Guidelines at Sentencing

The ruling by the United States Supreme Court that the United States Sentencing Guidelines (USSG) are unconstitutional has opened the door for judges to use their discretion to hand out sentences that are meaningfully tailored to weigh the defendant’s individual circumstances with the interests of society and justice. The guidelines are still used by judges, but they are no longer mandatory. The 2017 SCOTUS case of Beckles v. United States will likely have a significant impact on how judges impose sentences going forward.

Very, very basically, the Supreme Court ruled that part of the sentencing guidelines, called the Residual Clause, is sufficiently defined to be constitutionally valid. In making this ruling, the court pointed out that some vagueness can be excused because the guidelines are not mandatory. The Residual Clause is contained in a part of the guidelines frequently referred to as the career offender guideline. Under this provision, a guideline range for a defendant with certain prior convictions for “crimes of violence” would be arbitrarily increased to be at or near the maximum sentence authorized by law.

Variance Below Guidelines at Sentencing

As federal criminal defense attorneys, the lawyers with LEWIS & DICKSTEIN, P.L.L.C., have a track-record of routinely and successfully making arguments for sentence variances below the guidelines. By following the logic of the Beckles decision, increased support is given to arguments that a prior conviction should not trigger the Residual Clause.

An example of an argument that can be made at the time of sentencing is that a sentence at or near the bottom of the ordinary guidelines is sufficient but not greater than necessary. The USSG’s provide that a sentence imposed by a judge should be sufficient, but not greater than necessary. The guidelines were designed to provide sentence ranges that take into account a defendant’s likelihood of recidivism or reoffending. Because the Residual Clause does not take any such data or factors into account, an argument can be made that the ordinary guidelines are a better measure of what sentence is sufficient but not greater than necessary.

The Residual Clause requires that the prior offense contain an element of force. This is not as simple as it may seem and given the holding in Beckles, the sentencing court should feel more empowered to reject a prior offense based on this requirement. The phrase physical force means that it must violent or strong physical force capable of causing pain or injury. The force must be intentional. By closely examining the elements of the prior crime, a defense lawyer may be able to argue that the law does not fulfill this requirement.

To determine if a prior offense qualifies as a “crime of violence” courts have routinely looked to see if the elements of the prior offense match the generic definition of an offense enumerated in the Residual Clause. By closely examining what actions would be a crime under the original law and then comparing that to generic definition, a defense lawyer may find a discrepency. If there is a difference, the defense lawyer can argue that the prior should not be used to trigger the Residual Clause.

Does all of this sound complicated? If you think it does, you’re right. Most criminal defense lawyers struggle with understanding these complex laws and have a difficult time persuasively arguing for sentences below the sentencing guidelines. So why should you consult with LEWIS & DICKSTEIN, P.L.L.C.? Over the course of decades of practicing criminal defense, we have developed an in-depth knowledge of the law that allows us to be highly effective when advocating for a reduced sentence. If you are charged with a felony and want a lawyer who gives you the best chance of getting a variance below guidelines at sentencing, you should call LEWIS & DICKSTEIN, P.L.L.C. at (248) 263-6800 for a free consultation or complete a Request or Assistance Form and we will promptly contact you. We will find a way to help you!

Contact Us - Michigan Criminal Defense Attorneys