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Sentencing outside of the heartland sentencing guidelines are factors that a court is allowed to consider in a case that is “atypical” and allows for a departure from the accepted Federal Sentencing Guidelines. Historically, courts have been permitted to employ discretion in sentencing based on (1) What factors make the case special or unusual; and (2) Has the Commission forbidden, encouraged, or discouraged departures based on those factors? Moreover, recent case law based on Gall v. United States, 128 S. Ct. 586 (2007), and Kimbrough v. United States, 128 S. Ct. 558 (2007), hold that sentences that go outside the Guidelines do not have to be based on extraordinary circumstances.
However, the Guidelines are not the only consideration, and a district judge must give proper consideration to all of the 18 U.S.C. § 3553(a) factors. A judge may not simply presume that the applicable Guidelines range is reasonable. A judge must “ensure that the justification [for a sentence outside the Guidelines] is sufficiently compelling to support the degree of the variance” and must adequately explain why the sentence was chosen in order to allow for meaningful appellate review. Good experienced lawyers can make a record sufficiently compelling to take the case out of the Guideline’s heartland. Defense counsel must argue about the nature and circumstances of defendant’s alleged crime, the need for the sentence to reflect the seriousness of the crime, and the value of deterrence of future conduct. Mitigation experts are often employed to help counsel identify mitigation factors that could impact a judge’s decision at sentencing and favorable placement for prison.
