I. AUTHORITY TO DEPART – U.S.S.G. § 5K2.0

This provision was amendment in two ways: (1) substantive changes were made that eliminate several existing grounds for downward departures; and (2) technical changes were made redrafting the entire guidelines.

A. Eliminates Grounds – § 5K2.0(d):

1. Eliminates 5 existing or unmentioned grounds for downward departures; all prohibited factors are now collected in this section:

a. acceptance of responsibility;
b. minor role in the offense;
c. gambling addiction; and
d. legally required restitution (e.g., repayment of victims of white collar offenses);
e. based solely on the existence of a plea agreement.

B. Departure must "advance the objectives set forth in 18 U.S.C. § 3553(a)(2)"
1. Just punishment
2. Adequate deterrence
3. Protection of public
4. Defendant's needed rehabilation

C. § 5K2.0(a)(2): Identified and Unidentified Circumstances -- 5K2 Grounds
1. Departure "may be warranted"

D. § 5K2.0(a)(3): Circumstances present to a degree not adequately considered
1. Available in an exceptional case
2. Present to a degree substantially in excess or below

E. § 5K2.0(a)(4): Not Ordinarily Relevant Circumstances 5H Offender Characteristics
1. Offender characteristic or other circumstances
2. Present to an exceptional degree

F. §5K2.0©, Multiple Circumstances – Amends this circumstance by bringing it out of the commentary into the body of the policy statement:

"a downward departure is available based on a combination of offender characteristics and circumstances, none of which independently is sufficient if each circumstance is present to a "substantial degree" and identified in the guidelines as a permissible ground, even if not ordinarily relevant"

G. §5k2.0(e) – Specific Written Reasons for Departure.

"If the court departs from the applicable guideline range, it shall state, pursuant to 18 U.S.C. § 3553©, its specific reasons for departure in open court at the time of sentencing and, with limited exception in the case of statements received in camera, shall state those reasons with specificity in the written judgment and commitment order."

II. § 5H1.6, FAMILY TIES AND RESPONSIBILITIES -- Adds factors to be considered when granting a downward departure:

A. Requires the court to first consider a non-exhaustive list of circumstances, i.e.,

1. seriousness of offense,
2. involvement of family members in the offense, and
3. danger to family members from offense; and

B. Loss of Caretaking or Financial Support – if departures is based on this ground, requires the presence of four additional circumstances:

1. Service of sentence within the range will cause an extraordinary; substantial and direct loss of essential caretaking or financial support to the family;
2. for which no effective or ameliorative programs are reasonably available;
3. and where the departure will address the loss of the caretaking or financial support; and
4. departure will effectively address the loss.

III. §5K2.20, Aberrant Behavior -- limits the availability of downward departures based on aberrant behavior:

A. If defendant has > 1 CH point; prior felony conviction or "any other significant prior criminal behavior"
1. Prohibits a departure
2. Rregardless of "whether the conviction or significant prior criminal behavior is countable under Chapter Four".

B. Safety Valve Defendants: Amends the commentary so that defendants whose offense of conviction is a "serious drug offense" are precluded from eligibility for an aberrant behavior departure even when they are eligible for the Safety Valve, a circumstance that had previously made them eligible for aberrant behavior departures despite the fact that the offense of conviction was a "serious drug offense";

C. Fraud Schemes: Adds commentary that states that fraud schemes "generally" would not meet the requirement that conduct not be "repetitious or significant planned behavior"

D. Existing Circumstances: These new requirements are in addition to the existing restrictions, that prohibit a departure on this ground where
1. the offense involved serious bodily injury or death;
2. the defendant discharged or otherwise used a dangerous weapon;
3. the offense of conviction is a serious drug offense; and
4. the defendant had more than one criminal history point or a prior federal or state felony conviction.

IV. §4A1.3, Criminal History –

A. ACCA defendants – Eliminates criminal history downward departures for offenders who are Armed Career Criminals, as defined in USSG § 4B1.4;

B. Repeat Dangerous Sex Offenders, as defined in USSG §4B1.5 – Eliminates Criminal History Downward Departures for these defendants;

C. Career Offenders – Limits departures for Career Offenders, as defined in §4B1.1:
1. to a single Criminal History category;

D. Safety Valve Defendants –
1. prohibits the use of a criminal history downward departure to qualify a defendant for the application of the "Safety Valve;" a defendant who falls in the category may still receive a criminal history downward departure but does not thereby qualify for the Safety Valve;

E. Floor for Criminal History Departures –
1. Cannot depart "below the lower limit of the applicable guideline range" for Criminal History category I;

V. §5K3.1, Early Disposition Programs

A. Creates a new downward departure for "Early Disposition Programs"
"not more than 4 levels pursuant to an early disposition program authorized by the Attorney General of the United States and the United States Attorney for the district in which the court resides"

VI. §5K2.10, Victim's Conduct – Proportionality and Reasonableness of Defendant's Response

A. Adds "proportionality and reasonableness of the defendant's response to the victim's provocation" to existing factors that court should consider in determining whether a departure is warranted and the extent of any such departure.

VII. §5K2.10, Victim's Conduct – Proportionality and Seriousness of Conduct

A. Adds "proportionality of the defendant's actions to the seriousness of coercion, blackmail or duress involved" to the existing factors that court should consider in determining the extent of departure.

VIII. §5K2.13, Diminished Capacity – If Contributed Substantially to Offense

A. Adds a requirement that the reduced mental capacity must have "contributed substantially" to the commission of the offense requiring a seemingly more stringent causal relationship whereas previously the "extent to which the reduced mental capacity contributed to the commission of the offense" was a factor only in determining the "the extent of the departure."

B. The new language reads:

A sentence below the applicable guideline range may be warranted if . . . " (2) the significantly reduced mental capacity contributed substantially to the commission of the offense. Similarly, if a departure is warranted under this policy statement, the extent of the departure should reflect the extent to which the reduced mental capacity contributed to the commission of the offense."

On a related note, Carmen's analysis of the new DOJ "Policies and Procedures Concerning Sentencing Recommendations and Sentencing Appeals" is here.