The central purpose for the enactment of the United States Sentencing
Guidelines was to obtain uniformity in sentencing on a national level.
While the Guidelines were intended to eliminate Judge’s personalities
and personal proclivities as well as eliminate disparities in regions
or districts, the simple fact of the matter is that there are some
districts in which downward departures are the rule and other districts
where downward departures are either the exception or just never done.
Even within districts, the guidelines have done nothing to address the
disparity among different judges with regard to their views of downward
departures in similar cases. In addition, federal prosecutors are
including in written plea agreements a stipulation that no additional
downward departure beyond those concessions or agreements contained in
the written plea agreement can be sought by the Defendant in what is an
obvious effort to eliminate what has certainly become a very fruitful
area for creative lawyering in federal sentencing proceedings.



In an effort to put together a meaningful presentation for this
seminar, I sought out success stories from my partners and colleagues (Miami criminal defense lawyers),
both in the Southern District of Florida, my home court, and from
around the country. While the grounds for downward departure are
limited only by one’s imagination, here are some departure ideas that
have worked successfully and which you might apply in your federal
cases in which your client is facing sentencing pursuant to the United
States Sentencing Guidelines.



I. Extraordinary post offense rehabilitation.



Unquestionably, the heartland criminal case in federal court is a case
in which the arrest and prosecution of the defendant follows very
shortly after the offense conduct. There are, however, many federal
criminal prosecutions that are not initiated, often times, until the
eve of the running of the statute of limitations. In those
circumstances, pose the question: What has the defendant done with his
or her life subsequent to the offense conduct but prior to the
prosecution being initiated?

In United States of America vs. Alexander Chiong, United States
District Court for the Middle District of Florida, Tampa, Division,
Judge Moody, the defendant was indicted in a significant cocaine
distribution case. The Indictment was returned four years and eleven
months after the last distribution. There was almost an additional full
year before the Defendant came before the Court for resolution of those
charges. The amount of cocaine exceeded 150 kilograms (in fact, the
government alleges 1,500 kilograms) and the plea agreement provided for
stipulations regarding the amount of cocaine, acceptance of
responsibility, role in the offense and an agreement that no downward
departures pursuant to Chapter 2 of the Sentencing Guidelines would be
permitted. In the roughly five years that had transpired since the
offense, there was no evidence that the defendant had continued in the
drug trade; the defendant worked at extremely laborious jobs in order
to provide modest support for his family including lawn maintenance
(pushing a lawnmower), pressure cleaning of homes and businesses and
auto detailing. In addition, the defendant coached soccer, football and
baseball teams that his children were involved in at local parks
resulting in the usual plaques and certificates of appreciation given
out by the local optimist club, etc. The motion for downward departure
was based upon the defendant’s claim that his post offense conduct took
the case outside of the heartland of federal drug prosecutions and
warranted a downward departure based upon this \"extraordinary post
offense conduct.\" The pre-sentence investigation report accurately
concluded that the adjusted offense level required a sentence between
135 and 157 months. The court was persuaded that the defendant was not
all bad as the government had alleged and that his post offense conduct
warranted a four level downward departure resulting in a 97 month
sentence.

Alan S. Ross attended the University of Miami where he received Bachelor of Business Administration & Juris Doctorate degrees. He has been a member of The Florida Bar since 1976 & practice the defense of criminal cases in both State & Federal Courts. He has been a Partner in Miami criminal defense lawyer firm & the firm of Robbins, Turkey, Ross, Amsel, Raben & Waxman, P.A. since 1978.