Comments on Proposed Amendment to the Guidelines Manual Regarding Simplification of the “Three-Step Process”
SUMMARY
The Federal Courts Committee submitted comments to the United States Sentencing Commission on Proposed 2024 Amendments to the Federal Sentencing Guidelines Manual (“Guidelines” or “U.S.S.G.”). The proposed amendment would remove the second step in the three-step process, set forth in Subsection 1B1.1(b), which currently requires a sentencing court to consider the departure provisions included throughout the Guidelines and the policy statements contained in Chapter Five, Part H, relating to specific personal characteristics. The proposed amendment would delete most “departures” currently provided throughout the Guidelines (except for those pertaining to substantial assistance to authorities and early disposition programs) and would account for these deleted “departures” through the court’s consideration of the applicable sentencing factors identified in 18 U.S.C. § 3553(a). The City Bar supports the Commission’s proposal to remove the increasingly vestigial step of having courts analyze whether any departures are warranted before considering the Section 3553(a) factors and determining the sentence to be imposed. The proposed amendment would conform the Guidelines to prevailing practices, preserve for courts the ability to consider all relevant factors in determining a sentence, make the sentencing analysis more efficient, and clarify the process for defendants and non-practitioners.
REPORT
United States Sentencing Commission
One Columbus Circle, N.E., Suite 2-500
Washington, D.C. 20002-8002
Attention: Public Affairs – Proposed Amendments
RE: Comments on Proposed Amendment to the Guidelines Manual Regarding Simplification of the “Three-Step Process”
Dear Commissioners:
On behalf of the Federal Courts Committee of the New York City Bar Association[1] (“City Bar”), we respectfully submit the following comments on the United States Sentencing Commission’s (“Commission”) Proposed 2024 Amendments to the Federal Sentencing Guidelines Manual (“Guidelines” or “U.S.S.G.”). Specifically, the City Bar submits its comments concerning Proposed Amendment 4 regarding the simplification of the three-step process set forth in Section 1B1.1 of the Guidelines. The City Bar appreciates this opportunity to comment on the Proposed Amendment.
I. PROPOSED AMENDMENT 8
On December 19, 2024, the Commission proposed an amendment requesting comment on, inter alia, whether any changes should be made to the three-step process set forth in Section 1B1.1 (Application Instructions) of the Guidelines and the use of departures and policy statements relating to specific personal characteristics. The proposed amendment would also restructure Section 1B1.1 and Chapter One of the Guidelines to simplify both the current three-step process for determining a sentence that is “sufficient, but not greater than necessary,”[2] and the guidance in the Guidelines regarding a court’s consideration of the individual circumstances of the defendant as well as certain offense characteristics.
Specifically, the proposed amendment would remove the second step in the three-step process, set forth in Subsection 1B1.1(b), which currently requires a sentencing court to consider the departure provisions included throughout the Guidelines and the policy statements contained in Chapter Five, Part H, relating to specific personal characteristics. The proposed amendment would delete most “departures” currently provided throughout the Guidelines (except for those pertaining to substantial assistance to authorities and early disposition programs) and would account for these deleted “departures” through the court’s consideration of the applicable sentencing factors identified in 18 U.S.C. § 3553(a). The Commission stated that this amendment would better align the Guidelines with the requirements placed on sentencing courts and reflect the growing shift away from the use of departures following the Supreme Court’s decision in United States v. Booker, 543 U.S. 220 (2005), and its progeny.
The Commission has invited comments on several issues concerning the proposed amendment. The City Bar writes in response to the Commission’s request for general comments on whether reconceptualizing the three-step process as proposed would streamline the application of the Guidelines and better reflect the interaction between 18 U.S.C. § 3553(a) and the Guidelines.
II. THE CITY BAR SUPPORTS THE PROPOSED AMENDMENT SIMPLIFYING THE PROCESS FOR DETERMINING THE SENTENCE TO BE IMPOSED
The City Bar supports the proposed amendment to the Guidelines to simplify the process for determining the sentence to be imposed and eliminate the second of the three steps currently reflected in Section 1B1.1 of the Guidelines. Specifically, the City Bar supports the Commission’s proposal to remove the increasingly vestigial step of having courts analyze whether any departures are warranted before considering the Section 3553(a) factors and determining the sentence to be imposed. The proposed amendment would conform the Guidelines to prevailing practices, preserve for courts the ability to consider all relevant factors in determining a sentence, make the sentencing analysis more efficient, and clarify the process for defendants and non-practitioners.
A. The Commission’s Authority to Enact the Proposed Amendment
We note at the outset that the Commission possesses statutory authority to promulgate and enact amendments to the Guidelines that simplify the process courts utilize to determine sentences that are “sufficient, but not greater than necessary.” One of the Commission’s statutory purposes is to “establish sentencing policies and practices for the Federal criminal justice system that” ensure punishments accord with the statutory goals of sentencing established by Congress, “provide certainty and fairness” while “avoiding unwarranted sentencing disparities” and “maintaining sufficient flexibility to permit individualized sentences,” and “reflect, to the extent practicable, advancement in knowledge of human behavior as it relates to the criminal justice process.”[3] Consistent with this purpose, the Commission is required to “promulgate and distribute to all courts of the United States and to the United States Probation System . . . guidelines . . . for use of a sentencing court in determining the sentence to be imposed in a criminal case,”[4] as well as “general policy statements regarding application of the guidelines or any other aspect of sentencing or sentence implementation that in the view of the Commission would further” the statutory purposes of sentencing.[5]
Congress has imposed limits on the Commission’s authority to promulgate guidelines and policies,[6] but none preclude changes to the current three-step process for determining a federal sentence. Provided that any amendments simplifying that process continue to comply with the aforementioned requirements and further the statutory purposes of sentencing,[7] such amendments are within the Commission’s authority. Nor would such amendments infringe on courts’ overall sentencing discretion—including, among other things, the discretion to weigh factors beyond those identified in the Guidelines—because the range of sentences specified by the Guidelines is only “the starting point and the initial benchmark” in sentencing proceedings.[8]
B. General Comments on Reconceptualizing the Three-Step Process
The City Bar believes that the proposed amendment would helpfully streamline the application of the Guidelines and overall sentencing analysis and would better reflect the interaction between 18 U.S.C. § 3553(a) and the Guidelines, particularly given how courts apply these authorities in practice.
- Background on the Three-Step Process
Section 1B1.1 of the Guidelines sets forth the instructions for determining the applicable Guidelines range and sentence to be imposed in each case. This process broadly involves three steps for a sentencing court: (1) calculating the applicable Guidelines range by determining the defendant’s total offense level and criminal history category; (2) considering policy statements and Guidelines commentary relating to departures and specific personal characteristics; and (3) considering the factors identified in 18 U.S.C. § 3553(a) to reach a sentence that is sufficient, but not greater than necessary to comply with the statutory purposes of sentencing.[9]
Departures are sentences outside of the Guidelines range authorized by specific provisions and policy statements in the Guidelines Manual.[10] Prior to the Supreme Court’s decision in Booker, a sentence outside the Guidelines range could only be imposed if the court found “an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described.”[11] The Guidelines eventually grew to contain more than two hundred provisions, as well as commentary and policy statements, to provide guidance to sentencing courts when determining whether to find that such aggravating or mitigating circumstances justified “departing” from the Guidelines range.
The Supreme Court’s decision in Booker, which held that the Guidelines were merely “advisory,” dramatically reduced the importance of this second step, by “sever[ing] and excis[ing] . . . the provision that requires sentencing courts to impose a sentence within the applicable Guidelines range (in the absence of circumstances that justify a departure).”[12] As the Court explained, the federal sentencing statutes require a sentencing court to consider the Guidelines range, but also to tailor each sentence in light of the factors identified in 18 U.S.C. § 3553(a), including, among others, “the nature and circumstances of the offense and the history and characteristics of the defendant.”[13] A sentencing court thus is permitted to impose a sentence outside the Guidelines range even if the basis for that determination is not formally identified as a ground for departure or does not rise to the level of warranting a departure under the Guidelines framework. A sentence outside the Guidelines framework is called a “variance.”[14]
- Simplifying the Three-Step Process to Eliminate Step Two Would Conform the Guidelines with Actual Practice
Following Booker and its progeny, litigation and sentencing court determinations regarding formal departures from otherwise applicable Guidelines ranges have become much rarer. This is largely because the sentencing court’s “[d]iscretion has replaced formal departure analysis” as the forum for resolving sentencing disputes.[15] Empowered to impose sentences unbound by the strictures of the Guidelines framework and the rubric of specifically identified departures, courts increasingly frame sentences imposed outside applicable Guidelines ranges as variances.[16] This is so even when the bases for these variances are also identified as potential grounds for a departure.[17] As the First Circuit noted, “for practical purposes” there is no adjustment that “can be justified as a departure but not as a variance.”[18] Courts also frequently rely on variances rather than departures because variances avoid the formalism and findings required for a departure.[19]
While the majority of courts still engage in the formal three-step process laid out in the Guidelines and determine whether any possible departures apply in a given case, at least two Courts of Appeal have abandoned this approach post-Booker. The Seventh Circuit has held that “departures” are “obsolete” post-Booker because district courts may account for the same considerations that underlie departures “by way of analogy in analyzing the section 3553(a) factors.”[20] The Ninth Circuit has described how the process of considering potential departures at step two then considering many of the same considerations in the context of the Section 3553(a) factors to determine a reasonable sentence at step three is inefficient and “redundant.”[21]
Whether sentencing courts are methodically considering the applicability of departures at the second step of the sentencing analysis or not, courts are finding formal departures with decreasing frequency. Commission data show that, in Fiscal Year 2023, departures (other than for substantial assistance or early disposition programs) were granted in only 4.3% of cases nationwide.[22] The data for Fiscal Year 2022 are in accord, with courts granting departures (other than for substantial assistance or early disposition programs) in only 7.4% of cases.[23]
The infrequency of departures is even more pronounced in those districts where waiver of the ability to request departures is a standard provision of plea agreements. For example, in Fiscal Year 2023 in the Southern District of New York—where such waivers are regularly included in plea agreements and 94.3% of cases resolved by way of a pretrial plea[24]—out of 1,142 sentenced cases, departures (other than for substantial assistance and early disposition programs) were applied in only 12—slightly more than 1% of cases.[25]
The City Bar believes that eliminating the second step in the three-step process would conform the Guidelines with how courts actually approach sentencing and would better reflect the interaction between 18 U.S.C. § 3553(a) and the Guidelines in practice. Moreover, because courts are already empowered to consider, within the broad sweep of the Section 3553(a) factors, all of the bases for potential departures, the proposed amendment if enacted would preserve for courts the ability to consider all relevant factors in determining a sentence.
- Simplifying the Three-Step Process Would Not Derogate Parties’ Rights to Notice of Sentences Outside the Guidelines Range
When the Commission solicited comments on simplifying the three-step process previously, some commenters raised concerns that the elimination of departures might lead to parties receiving less notice when courts are contemplating sentences outside applicable Guidelines ranges. Although a court is required to provide “reasonable notice” to the parties “specify[ing] any ground on which the court is contemplating a departure” before it “may depart from the applicable sentencing range on a ground not identified for departure either in the presentence report or in a party’s prehearing submission,”[26] the same “reasonable notice” requirement does not apply when courts vary from the sentencing range recommended under the Guidelines.[27] While cognizant of the need to ensure parties have advance notice of potentially persuasive factors prior to sentencing and the prejudice that might result from insufficient notice, the City Bar does not believe that simplifying the three-step process would cause such harms.
First, the notice requirement for departures embodied in Rule 32(h) was imposed when the Guidelines were still mandatory.[28] The ability of courts to vary from the sentencing range recommended from the Guidelines—even in the absence of a departure—lessens, though does not eliminate, the concerns that motivated the notice requirement.[29] Rule 32 also contains “other procedural protections,” such as requiring advance disclosure of the presentence investigation report (“PSR”), the right to object to the PSR, and the right to comment on “matters relating to an appropriate sentence” and to present mitigation,[30] which are designed to “make sure that all relevant matters relating to a sentencing decision have been considered before the final sentencing determination is made.”[31] To the extent these procedural protections do not ensure that the parties are provided sufficient notice of the bases for a court’s potential sentence outside the Guidelines range, this concern can be addressed by the “district judge . . . granting a continuance when a party has a legitimate basis for claiming that [a] surprise was prejudicial.”[32]
Second, after Booker, a departure or a variance produces the same result (i.e., a sentence either above or below the range recommended by the Guidelines). By requiring reasonable notice and specification of any contemplated departures in advance, however, Rule 32(h) places a procedural hurdle for courts on only one of those “two roads.”[33] Conscientious judges seeking to consider and weigh all relevant circumstances but wary of procedural missteps may thus opt to frame sentences outside the Guidelines range as variances rather than departures. So long as an artificial distinction is maintained between departures and variances with respect to advance notice, prejudice may result if defendants or their counsel underestimate the potential significance of variances based on that distinction. This is particularly true because, as discussed, courts may and do base variances on grounds that may also support a departure.
Third, as the Commission has recognized, and as noted above, “[p]ost-Booker, courts have been using departures . . . with less frequency in favor of variances.”[34] Thus, although Rule 32(h) requires notice in advance of some departures, the increased use of variances as compared to departures renders such notice increasingly anachronistic.
“Sound practice dictates that judges in all cases should make sure that the information provided to the parties in advance of the hearing, and in the hearing itself, has given them an adequate opportunity to confront and debate the relevant issues.”[35] We respectfully submit, however, that maintaining the current three-step process does not further that goal sufficiently to overcome the benefits of the proposed amendment simplifying that process.
- Simplifying the Three-Step Process Would Make the Sentencing Analysis More Efficient, Individualized, and Comprehensible to Non-Practitioners
Simplifying the process by which federal sentences are imposed would have substantive benefits as well, including promoting judicial economy. For example, when a formal departure may be unjustified under the Guidelines but a variance warranted under the Section 3553(a) factors, skipping the intermediate analytical step and moving directly to the variance analysis would be more efficient for courts and litigants (as well as for Probation Officers drafting PSRs and recommending sentences).[36] This streamlined approach would eliminate the “redundancy and inefficiencies” of the three-step process for sentencing courts.[37] It would also make appellate review more efficient by obviating review of the appropriateness of departures and focusing on whether the imposed sentence—whether within the Guidelines range or not—is reasonable.[38]
Moving directly from the calculation of the applicable Guidelines range to the Section 3553(a) analysis would reflect the greater importance of the latter and properly focus the sentencing analysis on the statutory goals of sentencing.[39] The proposed amendment would simplify the analytical journey from the “initial benchmark” of the Guidelines to “consider[ation of] all of the § 3553(a) factors to determine whether they support the sentence requested by a party” and “an individualized assessment based on the facts presented.” [40] Skipping the departure analysis would result in analytical clarity and a more transparent determination of an appropriate sentence.[41] This more direct approach may also further promote the imposition of “individualized sentences when warranted by mitigating or aggravating factors not taken into account in the establishment of general sentencing practices.”[42] The proposed amendment would restructure the inquiry from two technical, Guidelines-bound steps and one broad discretionary assessment to an analysis that is equal parts consideration of the Guidelines and the weighing of statutory sentencing factors specified in Section 3553(a).[43] As a matter of doctrine and practice, this shift in perspective would center sentencing determinations on the individualized evaluations that are both required under the law and essential to dispensing justice.
Finally, the proposed amendment and the clarity that would result if it were enacted would be beneficial for defendants and the public by demystifying the sentencing process. The terms “departure” and “variance,” and their doctrinal overlap and distinctions, can be confusing not just for defendants and members of the public, but for practitioners and courts as well.[44] Lay defendants and observers of sentencing proceedings may be understandably confused by the analytical formalism and complications of evaluating and rejecting departures only for such considerations to then form the basis of a variance. Moreover, in those districts in which waiver of departures is a standard plea agreement provision, defendants may frequently misunderstand the plea offers they receive to require them to give up many sentencing arguments that remain available as the basis for a variance under the Section 3553(a) analysis. Making the sentencing process more comprehensible and accessible for defendants and members of the public is a valuable goal in its own right.
- The Content of the Deleted Departures and Background Commentary Should Be Preserved
If the Commission adopts the proposed amendment to delete most “departures” currently provided throughout the Guidelines (except for those pertaining to substantial assistance to authorities and early disposition programs), it should consolidate and preserve the deleted provisions in some readily available format, such as an Appendix. The deleted departures were the result of considerable thought, debate, and years of experience by the Commission in the application of the guidelines. They may yet provide a valuable resource for defendants and prosecutors in fashioning arguments for or against a variance under the Section 3553(a) analysis, as well as for courts in exercising their discretion to impose sentences that are sufficient but not greater than necessary to comply with the purposes set forth in Section 3553(a).
For similar reasons, the Commission should retain background historical information contained in the Commentary to various guidelines, even if the departures provisions are deleted. Post-Booker, sentencing courts must still consider the advisory guidelines range. The historical background on the relevant guidelines, including the previous reasons for potential departures, will surely aid in that consideration and the court’s determination as to whether the sentence should vary from that range.
III. CONCLUSION
For the reasons set forth above, the City Bar supports the Commission’s proposed amendment to the Guidelines to simplify the process for determining the sentence to be imposed in federal criminal cases. Specifically, the City Bar supports the proposed amendment to eliminate the second of the three steps currently reflected in Section 1B1.1 of the Guidelines. The proposed amendment would conform the Guidelines to prevailing practices, make the sentencing process more efficient and analytically coherent, preserve for courts the ability to consider all relevant factors in determining the sentence to be imposed, and clarify the process for courts, counsel, defendants, and the public.
Respectfully,
Richard Hong, Chair
Federal Courts Committee
Drafting Subcommittee
Neil P. Kelly, Chair
Sarah Dowd
Bianca Herlitz-Ferguson
Jonathan B. New
Jarrod Schaeffer
Footnotes
[1] The City Bar, founded in 1870, has approximately 23,000 members practicing throughout the nation and in more than fifty foreign countries. It includes among its membership lawyers in many areas of law practice, including present or former federal prosecutors as well as lawyers who represent defendants in criminal cases. The Federal Courts Committee is charged with studying and making recommendations regarding substantive and procedural issues relating to the practice of civil and criminal law in the federal courts.
[2] 18 U.S.C. § 3553(a).
[3] 28 U.S.C. § 991(b)(1)(A)–(C).
[4] Id. § 994(a)(1).
[5] Id. § 994(a)(2).
[6] See, e.g., 28 U.S.C. §§ 994(b)(1) (requiring that the Commission’s guidelines “for each category of offense involving each category of defendant, establish a sentencing range that is consistent with all pertinent provisions of title 18, United States Code”); 994(c) (specifying that the Commission “shall consider” whether certain matters are relevant when “establishing categories of offenses for use in the guidelines and policy statements”); 994(d) (specifying that the Commission “shall consider” whether certain matters are relevant when “establishing categories of defendants for use in the guidelines and policy statements”); 994(h)–(i) (providing that the Commission “shall assure that the guidelines specify” certain sentences with respect to particular categories of defendants and offenses).
[7] See id. § 991(b)(1)(A); 18 U.S.C. § 3553(a)(2).
[8] Gall v. United States, 552 U.S. 38, 49 (2007); accord Booker, 543 U.S. at 259.
[9] See 18 U.S.C. § 3553(a)(2)(A)–(D) (identifying “the need for the sentence imposed . . . to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment”; “to afford adequate deterrence to criminal conduct”; “to protect the public from further crimes of the defendant”; and “to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner”).
[10] U.S.S.G. Ch. 1, Pt. A(1)(4)(b).
[11] 18 U.S.C. § 3553(b)(1).
[12] Booker, 543 U.S. at 245–46, 259.
[13] Id. at 259; see Rita v. United States, 551 U.S. 338, 347–48 (2007).
[14] U.S.S.G. § 1B1.1, cmt.
[15] United States v. Gardner, 939 F.3d 887, 892 (7th Cir. 2019).
[16] Cf. United States v. Chase, 560 F. 3d 828, 830–31 (8th Cir. 2009) (“Factors ordinarily considered irrelevant in calculating the advisory guideline range, or in determining whether a guideline departure is warranted, can be relevant in deciding whether to grant a variance. . . . [F]actors such as a defendant’s age, medical condition, prior military service, family obligations, entrepreneurial spirit, etc., can form the bases for a variance even though they would not justify a departure. . . . In addition, factors that have already been taken into account in calculating the advisory guideline range, such as a defendant’s lack of criminal history, can nevertheless form the basis of a variance.”).
[17] See, e.g., United States v. Sealed Defendant One, 49 F.4th 690, 697 (2d Cir. 2022) (explaining that the sentencing court used a variance, not a departure, in part because “that [was] how the district court characterized its own sentence, stating on the record at sentencing that it was ‘going to vary upward’”) (emphasis in original); United States v. Anderson, 547 F.3d 831, 833 (7th Cir. 2008) (“But now that the sentencing guidelines are merely advisory, a judge can give a sentencing discount to [a defendant] pursuant to 18 U.S.C. § 3553(a) on account of diminished capacity, without regard to the limitations in guideline section 5K2.13, because diminished capacity might affect ‘the nature and circumstances of the offense and the history and characteristics of the defendant,’ and those are among the statutory factors that guide sentencing.”).
[18] United States v. Santini-Santiago, 846 F.3d 487, 490 (1st Cir. 2017).
[19] See, e.g., United States v. Montalvo, No. 20-4176-CR, 2022 WL 4282145, at *2 (2d Cir. Sept. 16, 2022) (“Because it issued a variance, the district court was not required to find that Montalvo’s discharged conduct was related to the offense of conviction before factoring that conduct into the sentence. . . . We therefore need not consider whether the conduct was sufficiently related to the offense of conviction to warrant a departure under U.S.S.G. § 5K2.21.” (citing 18 U.S.C. § 3661)).
[20] United States v. Miranda, 505 F.3d 785, 792 (7th Cir. 2007); see also United States v. Johnson, 427 F.3d 423, 426 (7th Cir. 2005).
[21] United States v. Mohamed, 459 F.3d 979, 986–87 (9th Cir. 2006) (“We think the better view is to treat the scheme of downward and upward ‘departures’ as essentially replaced by the requirement that judges impose a ‘reasonable’ sentence.”).
[22] U.S. Sentencing Comm’n, 2023 Sourcebook of Federal Sentencing Statistics at 60, Tbl. 29, https://www.ussc.gov/sites/default/files/pdf/research-and-publications/annual-reports-and-sourcebooks/2023/2023_Sourcebook.pdf (All websites last accessed on Jan 31, 2025).
[23] U.S. Sentencing Comm’n, 2024 Simplification Data: Supplemental Data: 2024 Proposed Amendment Relating to Simplification, available at https://www.ussc.gov/education/backgrounders/2024-simplification-data.
[24] U.S. Sentencing Comm’n, Statistical Information Packet, Fiscal Year 2023, Southern District of New York, at 4, Tbl. 2 “Guilty Pleas and Trials in Each Circuit and District,” https://www.ussc.gov/sites/default/files/pdf/research-and-publications/federal-sentencing-statistics/state-district-circuit/2023/nys23.pdf.
[25] Id. at 12, Tbl. 8 “Sentence Imposed Relative to the Guideline Range.”
[26] Fed. R. Crim. P. 32(h).
[27] Irizarry v. United States, 553 U.S. 708 (2008).
[28] Id. at 713–16.
[29] See id. at 713. It is worth noting that Rule 32(h) never prevented all surprise to the parties, as it required notice only when a court was considering a departure “on a ground not identified for departure either in the presentence report or in a party’s prehearing submission,” id., which leaves ample room for uncertainty when multiple potential departures are identified prior to sentencing.
[30] Fed. R. Crim. P. 32(e)(2), 32(f), 32(i)(1)(C), 32(i)(4)(A)(ii).
[31] Irizarry, 553 U.S. at 716.
[32] Id. at 715–16; accord United States v. Hatcher, 947 F.3d 383, 391 (6th Cir. 2020) (reversing imposition of upward variance without notice where “the facts or issues on which the district court relied to impose a variance came as a surprise and the defendant’s presentation to the court was prejudiced by the surprise” (cleaned up)).
[33] United States v. Fletcher, 56 F.4th 179, 187 (1st Cir. 2022).
[34] U.S. Sentencing Comm’n, “Proposed Amendments to the Sentencing Guidelines” at 123 (Dec. 26, 2023), https://www.ussc.gov/sites/default/files/pdf/amendment-process/reader-friendly-amendments/20231221_rf-proposed.pdf.
[35] Irizarry, 553 U.S. at 715.
[36] See Lee D. Heckman, The Benefits of Departure Obsolescence: Achieving the Purposes of Sentencing in the Post-Booker World, 69 Ohio St. L. J. 149, 178 (2008).
[37] Id. at 182–83 (citing Mohamed, 459 F. 3d at 986–87); see also Paul J. Hofer, Beyond the “Heartland”: Sentencing under the Advisory Federal Guidelines, 49 Duq. L. Rev. 675, 699 (2011) (“It is hard to see the advantage of considering a circumstance within the unexplained strictures of the commentary and policy statements governing ‘departures,’ only to revisit the same factor at step three, under the rubric of ‘variance,’ free from those strictures.”).
[38] Heckman, supra n.36 at 183; see also United States v. Hawk Wing, 433 F.3d 622, 633 (8th Cir. 2006) (Loken, J. concurring) (noting that review of departures “unduly complicates our appellate task and may compel a significant number of essentially meaningless remands” because the same sentence may be imposed as a variance).
[39] Heckman, supra n.36 at 180–81; see 18 U.S.C. § 3553(a)(2).
[40] Gall, 552 U.S. at 49–50.
[41] Heckman, supra n.36 at 183.
[42] 28 U.S.C. § 991(b)(1)(B).
[43] U.S.S.G. § 1B1.1(a)–(c).
[44] See Hofer, supra n.37 at 697–98 & n.91 (noting that in Rita, Justice Breyer wrote that a judge “may depart” either “pursuant to the Guidelines” or by imposing a “non-Guidelines sentence” pursuant to Booker, “while Justice Stevens’ majority opinion in Gall used the terms interchangeably” (citing Rita, 551 U.S. at 350; Gall, 552 U.S. at 46, 51); see, e.g., Chase, 560 F.3d at 831–32 (vacating and remanding when “the district court improperly equated a downward variance with a downward departure” and record was unclear whether district court properly considered factors it was required to consider when addressing a variance, if not a departure).