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Downward Departure
Los Angeles Federal Criminal Defense Attorney

If you are being charged with a federal crime and are facing a possible sentence to prison, you may qualify for a downward departure.

A downward departure is a request made by a motion ( § 5K2 motion) asking the Judge to modify the sentencing downward (lower than statutory required minimum sentencing according to sentencing guidelines). The decision is within the Judge’s discretion.

There are some requirements to determine whether you are qualified for a downward departure. Our federal defense attorneys are here to help you and lay out all your options for you.

Situations where downward departures are granted:

Acceptance of responsibility: You may be eligible for a downward departure for acceptance of responsibility. This applies only if the offense was disclosed before the discovery of such offense, and if such offense was unlikely to have been discovered.

Victim’s Conduct: if the victim’s conduct contributed significantly to provoke defendant’s offensive behavior, the court may reduce the sentence, granting a downward departure. There are numerous factors the court considers such as size and strength of victim, danger perceived by and actually perceived by defendant, the reasonableness of defendant’s response.

Lesser Harms:Sometimes a defendant may have committed a crime to avoid a greater harm, and in this case, a reduced sentence ma be warranted if society’s interest in punishing the conduct is significantly diminished.

Coercion and Duress: If the defendant acted as a result of coercion, duress, or blackmail, and these things, because of the specific facts of the case, do not amount to a complete defense, then the court may grant a downward departure. (Applies only when threat of physical injury or substantial damage to property is involved).

Diminished capacity: A number of circuits have held that psychological conditions that affect a defendant’s self control may justify a downward departure for reduced mental capacity when the diminished capacity was directly responsible for the offense conduct.

The United States Court of Appeals for the Sixth Circuit has affirmed a departure for a compulsive gambling disorder if it motivated the alleged offense.

(United States v. Sadolsky, 234 F.3d 938 (6th Cir. 2000), the defendant embezzled $30,000 from his employer to satisfy gambling debts. The district court found that the defendant lacked the ability to control his behavior and, therefore, satisfied the requirements for a departure based on diminished capacity.

In summary, downward departure forensic examinations require an extensive reflection of psychiatric, psychosocial, and medical factors and their impact on the defendant. Additionally, a knowing and voluntary admission of responsibility, the defendant’s immaturity, defendant’s minor role in the crime, defendant’s mental disorder that reduces capacity to appreciate the conduct’s criminal nature, are adequate justifications for a downward departure.

If you are being charged with a federal crime, contact our law firm and we will discuss all your options in order to get you the best possible results.

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