Departures and Variances

By Elizabeth Franklin-Best, Esq., and Christopher Zoukis, JD, MBA

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What is the difference between a departure and a variance?

A departure was a sentence outside the guideline range authorized by the Guidelines Manual itself. A variance is a sentence outside the range based on the statutory sentencing factors in 18 U.S.C. § 3553(a). Effective November 1, 2025, Amendment 836 deleted most departure provisions from the Manual, so nearly every argument for a sentence below the range is now a variance argument.

Key takeaways on departures and variances

• The Supreme Court’s definition still governs the old vocabulary. Irizarry v. United States, 553 U.S. 708 (2008): “‘Departure’ is a term of art under the Guidelines and refers only to non-Guidelines sentences imposed under the framework set out in the Guidelines.”
• Amendment 836 removed departures from the Manual on November 1, 2025. Chapter Five Part H is deleted; §§5K2.0–5K2.24 are deleted; §4A1.3 is deleted; Part K is renamed “Assistance to Authorities.”
• The Commission says the change is outcome-neutral. Judges “would continue to have the authority to rely upon such facts to impose a sentence outside of the applicable guideline range as a variance under 18 U.S.C. § 3553(a).”
• The statutory authority never changed. § 3553(a) requires a sentence “sufficient, but not greater than necessary.”
• No extraordinary circumstances are required. Gall v. United States, 552 U.S. 38 (2007): “We reject … an appellate rule that requires ‘extraordinary’ circumstances to justify a sentence outside the Guidelines range.”
• The judge may not presume the range is reasonable. Nelson v. United States, 555 U.S. 350 (2009) (per curiam).
• Which Manual applies matters. U.S.S.G. § 1B1.11 applies the Manual in effect at sentencing unless that would violate the Ex Post Facto Clause — Peugh v. United States, 569 U.S. 530 (2013).

The distinction at a glance

	Departure (framework largely removed 2025-11-01)	Variance (current framework)
Source of authority	A provision inside the Guidelines Manual — formerly Chapter Five Parts H and K, Chapter Four Part A (§4A1.3), and departure notes throughout Chapter Two	18 U.S.C. § 3553(a) — the sentencing statute itself
Definition	Irizarry: “a term of art under the Guidelines … refers only to non-Guidelines sentences imposed under the framework set out in the Guidelines”	A sentence outside the correctly calculated range imposed because the § 3553(a) factors, taken as a whole, call for it
Where it sits in the analysis	Formerly inside the guideline calculation, before § 3553(a)	Step Two of §1B1.1 — after the range is calculated
Effect on the guideline range	Changed the range or the guideline sentence	Does not change the range; the range is the benchmark the court moves away from
Standard for granting	The ground had to be recognized by the Manual and, under 18 U.S.C. § 3553(b), not “adequately taken into consideration by the Sentencing Commission”	Whatever produces a sentence “sufficient, but not greater than necessary” under § 3553(a)
Appellate posture	Reviewed for abuse of discretion; a legally erroneous departure was procedural error	Reviewed for substantive reasonableness under Gall‘s deferential abuse-of-discretion standard
Notice requirement	Rule 32(h) required notice of a sua sponte departure ground	Irizarry: Rule 32(h) “does not apply to 18 U.S.C. § 3553 variances by its terms”
Status today	§5K1.1 and §5K1.2 (assistance) survive; §3F1.1 (early disposition) survives in Chapter Three; the rest is in Appendix B as history	The operative route for virtually every argument for a lower sentence

What Amendment 836 actually did

The 2025 Guidelines Manual‘s own introductory commentary is the clearest statement of it, and it is worth quoting at length because it is the sentence to put in a sentencing memorandum:

“Originally, consistent with the pre-Booker sentencing system, the Guidelines Manual included an additional step for determining a sentence by providing for a number of ‘departures,’ which were provisions that allowed the court to impose a sentence outside the applicable guideline range or otherwise different from the guideline sentence before the court’s consideration of the additional sentencing factors set forth in 18 U.S.C. § 3553(a). The departure provisions were set forth throughout the Guidelines Manual as part of the commentary to numerous guidelines and in policy statements contained in Chapter Four, Part A, and Chapter Five, Parts H and K.

Following Booker, courts are permitted to impose sentences outside the applicable guideline range as ‘variances,’ both for reasons related to the operation of the applicable guideline provisions and in light of individual characteristics unrelated to guideline provisions. In the years after Booker, courts used departures with much less frequency in favor of variances.

In 2025, the Commission amended the Guidelines Manual to remove departures and policy statements relating to specific personal characteristics. … The Commission envisioned and framed this 2025 amendment to be outcome neutral, intending that judges who would have relied upon facts previously identified as a basis for a departure would continue to have the authority to rely upon such facts to impose a sentence outside of the applicable guideline range as a variance under 18 U.S.C. § 3553(a). The removal of departures from the Guidelines Manual does not limit the information courts may consider in imposing a sentence nor does it reflect a view from the Commission that such facts should no longer inform a court for purposes of determining the appropriate sentence. In this regard, Appendix B of the Guidelines Manual compiles the departure provisions as they were last provided in the 2024 edition of the Manual.”

Emphasis added. Read the last two bolded phrases together: nothing that was a good reason for a lower sentence in October 2025 stopped being a good reason in November 2025. What changed is the citation.

The deletions, verified

Provision	2024 Manual	2025 Manual
Chapter Five, Part H (Specific Offender Characteristics)	§§5H1.1 through 5H1.12, covering personal characteristics including — for example — §5H1.4 (Physical Condition, Including Drug or Alcohol Dependence or Abuse), §5H1.10 (Race, Sex, National Origin, Creed, Religion, and Socio-Economic Status), and §5H1.12 (Lack of Guidance as a Youth and Similar Circumstances)	Part H — [Deleted]. Every section listed as “[Deleted]”
Chapter Five, Part K	Titled “Departures” — §5K1.1 and §5K1.2 (assistance), §5K2.0 (Grounds for Departure) through §5K2.24, and §5K3.1 (Early Disposition Programs)	Retitled “Assistance to Authorities.” Only §5K1.1 and §5K1.2 remain. §§5K2.0–5K2.24 all “[Deleted].” §5K3.1 “[Deleted]”
§4A1.3	Departures Based on Inadequacy of Criminal History Category	[Deleted]
§6A1.4	Notice of Possible Departure	[Deleted]
§1B1.1, App. Note 1(F)	Defined “departure,” “downward departure,” “upward departure”	Struck; remaining subparagraphs redesignated
§1B1.1(b) and (c)	Directed the court to consider Chapter Five Parts H and K, then § 3553(a)	Replaced by “Step Two: Consideration of Factors Set Forth in 18 U.S.C. § 3553(a)”
Chapter Two commentary	Dozens of “Upward Departure Provision” application notes — e.g. cross-references to §5K2.7 (Disruption of Governmental Function) and §5K2.8 (Extreme Conduct)	Struck throughout
Early disposition	§5K3.1	Re-promulgated as §3F1.1, Chapter Three, Part F — “not more than 4 levels,” on government motion

What survives inside the Manual

• U.S.S.G. § 5K1.1 — Substantial Assistance to Authorities. Still a policy statement, still requires a government motion. §1B1.1(a)(9) now instructs the court to “[a]pply, as appropriate, Part K of Chapter Five” as the ninth and final step of the guideline calculation. Covered in full at 5k1.1.
• § 5K1.2 — Refusal to Assist. The companion policy statement remains in Part K.
• § 3F1.1 — Early Disposition Programs. Up to four levels, on government motion, in districts with an authorized fast-track program.
• The statutory safety valve. 18 U.S.C. § 3553(f) and its guideline counterpart §5C1.2 are statutory and were untouched by Amendment 836. See safety valve federal sentencing.

How the two vocabularies came apart, and then came back together

The distinction between departures and variances did not exist before 2005, because before 2005 there were no variances.

The mandatory era. From November 1, 1987 until January 2005, 18 U.S.C. § 3553(b)(1) required a sentence within the guideline range unless the court found “an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission.” The Guidelines Manual accordingly built an elaborate apparatus of authorized grounds — Chapter Five Parts H and K, §4A1.3, and dozens of departure notes in Chapter Two — because a departure was the only lawful way out of the box.

Booker. In United States v. Booker, 543 U.S. 220 (2005), the Court held, in Justice Stevens’s opinion, that “[a]ny fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt” — applying Apprendi v. New Jersey, 530 U.S. 466 (2000), and Blakely v. Washington, 542 U.S. 296 (2004), to the federal guidelines. In Justice Breyer’s remedial opinion, the Court fixed the constitutional problem by severance: “We answer the question of remedy by finding the provision of the federal sentencing statute that makes the Guidelines mandatory, 18 U.S.C. § 3553(b)(1) …, incompatible with today’s constitutional holding,” and “this provision must be severed and excised, as must one other statutory section, § 3742(e) …, which depends upon the Guidelines’ mandatory nature.” The result: “So modified, the federal sentencing statute … makes the Guidelines effectively advisory.”

The trilogy. Between 2007 and 2009 the Court built out what “advisory” means: Rita (appellate presumption only), Gall (deferential abuse-of-discretion review, no extraordinary-circumstances rule, no percentage test), Kimbrough (policy disagreement permitted), Nelson (no presumption at sentencing), and Spears (categorical policy variance permitted).

The drift. Once § 3553(a) could do the same work with fewer preconditions, practitioners stopped using departures. The Commission’s own account, in the 2025 Manual: “In the years after Booker, courts used departures with much less frequency in favor of variances.”

Amendment 836. The Commission removed the machinery that had fallen into disuse, keeping the two provisions that Congress had specifically directed it to maintain — substantial assistance under 28 U.S.C. § 994(n), and early disposition under the PROTECT Act directive now implemented at §3F1.1.

The doctrinal point worth carrying away: the removal of departures was a consequence of Booker, not a restriction on defendants. The Commission said as much. Anyone who reads the amendment as narrowing what a court may consider has the history backwards.

Which Guidelines Manual applies to your case

This matters more than usual right now, because the Manual changed materially on November 1, 2025.

U.S.S.G. § 1B1.11 directs the court to use the Manual in effect on the date of sentencing, unless doing so would violate the Ex Post Facto Clause — in which case the court uses the Manual in effect on the date the offense was committed.

Peugh v. United States, 569 U.S. 530 (2013), supplies the constitutional rule: “the Ex Post Facto Clause is violated when a defendant is sentenced under Guidelines promulgated after he committed his criminal acts and the new version provides a higher sentencing range than the version in place at the time of the offense.” The Court’s reasoning is that “[t]he post-Booker federal sentencing scheme aims to achieve uniformity by ensuring that sentencing decisions are anchored by the Guidelines,” so “[a] retrospective increase in the Guidelines range applicable to a defendant creates a sufficient risk of a higher sentence to constitute an ex post facto violation.”

Note the limit: Peugh is about the range. Amendment 836 did not raise any range; it removed a category of argument. Whether the removal of a departure provision can support an ex post facto objection is a genuinely open question, and the Commission’s “outcome neutral” framing cuts against it. The court in United States v. McDonald, No. 4:21-cr-03126 (D. Neb. June 24, 2026), applied the 2025 Manual to an offense predating it and found no ex post facto problem — while making clear that the underlying facts would still be weighed as variance grounds. That is where the law currently sits, and it is a point on which counsel should watch for circuit authority.

The statute: 18 U.S.C. § 3553(a)

Everything now runs through this section, so it is worth reading rather than paraphrasing. Section 3553(a) begins:

“The court shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of this subsection. The court, in determining the particular sentence to be imposed, shall consider—”

That opening clause — the parsimony clause — is the single most important sentence in federal sentencing, and it is omitted from most law-firm pages on this topic. It is not a factor. It is the instruction that governs the weighing of all the factors: a sentence that is sufficient is enough, and a sentence greater than necessary is unlawful.

The seven factors follow:

§ 3553(a) factor	Text or substance	What it is used for in practice
(a)(1)	“the nature and circumstances of the offense and the history and characteristics of the defendant”	The widest door. Everything about the person — upbringing, health, trauma, service, work, family — comes in here
(a)(2)(A)	“to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense”	Retribution and proportionality; also where the government usually argues
(a)(2)(B)	“to afford adequate deterrence to criminal conduct”	General deterrence; increasingly met with the empirical literature on the limited marginal deterrent effect of length
(a)(2)(C)	“to protect the public from further crimes of the defendant”	Individual risk; where recidivism data on age and criminal history score is most persuasive
(a)(2)(D)	“to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner”	Treatment needs; the hook for RDAP recommendations and medical placement
(a)(3)	“the kinds of sentences available”	Probation, split sentences, home detention — see the zones on federal sentencing guidelines
(a)(4)	the guideline range	One factor of seven
(a)(5)	pertinent policy statements of the Commission	Now a much smaller category than it was before November 2025
(a)(6)	“the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct”	Co-defendant disparity; national data; the Commission’s own statistics
(a)(7)	“the need to provide restitution to any victims of the offense”	Restitution already paid is often argued here and under §3E1.1

The Commission’s own restatement of the factors, in the new §1B1.1(b), tracks the statute and is quoted on the federal sentencing guidelines page.

What the Supreme Court has said about sentences outside the range

Four decisions do most of the work.

Gall: no extraordinary circumstances, no percentage test

Gall v. United States, 552 U.S. 38 (2007), is the case to cite when a prosecutor argues that a below-range sentence requires something exceptional. The Court held that “courts of appeals must review all sentences — whether inside, just outside, or significantly outside the Guidelines range — under a deferential abuse-of-discretion standard,” and then rejected two specific appellate rules:

“We reject, however, an appellate rule that requires ‘extraordinary’ circumstances to justify a sentence outside the Guidelines range.”

“We also reject the use of a rigid mathematical formula that uses the percentage of a departure as the standard for determining the strength of the justifications required for a specific sentence”

Gall also sets out the procedural checklist an appellate court runs first: whether the district court committed “significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence — including an explanation for any deviation from the Guidelines range.”

Rita and Nelson: the presumption is an appellate presumption only

Rita v. United States, 551 U.S. 338 (2007), permits a court of appeals to apply “a presumption of reasonableness to a district court sentence that reflects a proper application of the Sentencing Guidelines.” Read only that far, the case sounds like bad news for a defendant. Read further:

“We repeat that the presumption before us is an appellate court presumption. Given our explanation in Booker that appellate ‘reasonableness’ review merely asks whether the trial court abused its discretion, the presumption applies only on appellate review. … the sentencing court does not enjoy the benefit of a legal presumption that the Guidelines sentence should apply.”

Two years later the Court said it again, more bluntly, in a per curiam reversal. Nelson v. United States, 555 U.S. 350 (2009):

“Our cases do not allow a sentencing court to presume that a sentence within the applicable Guidelines range is reasonable.”

“The Guidelines are not only not mandatory on sentencing courts; they are also not to be presumed reasonable.”

If a district judge says at sentencing that a within-range sentence is presumptively appropriate, that is legal error under Nelson, and it should be objected to on the record. See our page on preserving error for appeal, and, for what happens if the sentence is imposed anyway, federal appeals attorney.

Kimbrough and Spears: disagreeing with the guideline itself

Kimbrough v. United States, 552 U.S. 85 (2007), held “that, under Booker, the cocaine Guidelines, like all other Guidelines, are advisory only,” and that “it would not be an abuse of discretion for a district court to conclude when sentencing a particular defendant that the crack/powder disparity yields a sentence ‘greater than necessary’ to achieve § 3553(a)’s purposes, even in a mine-run case.” The Court’s reasoning turned on the fact that the crack guidelines “do not exemplify the Commission’s exercise of its characteristic institutional role,” because in setting them “the Commission looked to the mandatory minimum sentences set in the 1986 Act, and did not take account of ’empirical data and national experience.'”

Spears v. United States, 555 U.S. 261 (2009) (per curiam), removed the remaining ambiguity:

“we now clarify that district courts are entitled to reject and vary categorically from the crack cocaine Guidelines based on a policy disagreement with those Guidelines.”

And: “A sentencing judge who is given the power to reject the disparity created by the crack-to-powder ratio must also possess the power to apply a different ratio which, in his judgment, corrects the disparity.”

The practical rule that follows. A policy-disagreement argument is not a complaint that the guideline is harsh. It is a research argument: identify a guideline that was not built from the Commission’s empirical study of actual sentencing practice — because it was written to a congressional directive, or pegged to a statutory minimum, or never revisited against outcome data — and show the court why. That argument is available for guidelines beyond crack cocaine, and district courts have accepted it in a range of contexts. It requires the Commission’s own research reports, not adjectives.

Pepper: rehabilitation counts

Pepper v. United States, 562 U.S. 476 (2011), held that “when a defendant’s sentence has been set aside on appeal, a district court at resentencing may consider evidence of the defendant’s postsentencing rehabilitation and that such evidence may, in appropriate cases, support a downward variance from the now-advisory Federal Sentencing Guidelines range.”

The Court grounded that in 18 U.S.C. § 3661, “which provides that ‘[n]o limitation shall be placed on the information’ a sentencing court may consider ‘concerning the [defendant’s] background, character, and conduct,'” and in § 3553(a)(1)’s “history and characteristics of the defendant.”

Pepper also invalidated 18 U.S.C. § 3742(g)(2), which had confined a resentencing court to grounds relied on at the original sentencing — “that provision did not survive our holding in United States v. Booker … and we expressly invalidate it today.”

The grounds that used to be departures — and how to argue them now

This is the translation table. The left column is what a pre-November 2025 brief would have cited. The right column is where the same fact goes today.

Fact	Pre-2025-11-01 authority	Current authority
Age, or the interaction of age with health and recidivism risk	Chapter Five, Part H	§ 3553(a)(1) and (a)(2)(C), supported by the Commission’s own recidivism research
Physical condition, serious illness, disability	Chapter Five, Part H (§5H1.4)	§ 3553(a)(1) and (a)(2)(D); also relevant to placement recommendations
Drug or alcohol dependence and treatment	Chapter Five, Part H (§5H1.4)	§ 3553(a)(2)(D) — “needed … correctional treatment in the most effective manner.” Also the RDAP hook
Mental and emotional condition; diminished capacity	Chapter Five, Part H; §5K2.13	§ 3553(a)(1); ordinarily supported by a qualified evaluation
Family ties and responsibilities; dependent care	Chapter Five, Part H	§ 3553(a)(1) and (a)(2)(D), documented — not asserted
Military service; civic and charitable contributions	Chapter Five, Part H	§ 3553(a)(1) — attach the DD-214 and the service records
Lack of guidance as a youth; childhood trauma	Chapter Five, Part H (§5H1.12)	§ 3553(a)(1); supported by records or evaluation
Employment record; loss of career and licensure	Chapter Five, Part H	§ 3553(a)(1), (a)(2)(A) — collateral consequences bear on what punishment is necessary
Criminal history category over-represents seriousness	§4A1.3	§ 3553(a)(1), (a)(2)(C), (a)(6) — and the underlying §4A1.2 objection, which is still a calculation issue
Coercion, duress, victim conduct, aberrant behavior	§§5K2.10–5K2.20	§ 3553(a)(1); these are now purely statutory arguments
Post-offense or post-sentencing rehabilitation	§5K2.19 (deleted 2012) / Pepper	§ 3553(a)(1), on Pepper‘s authority
Global disproportion of the guideline itself	Kimbrough policy argument	Unchanged — Kimbrough and Spears
Substantial assistance to the government	§5K1.1	Unchanged — §5K1.1 survives, and § 3553(e) is required to reach a statutory minimum
Early disposition / fast track	§5K3.1	§3F1.1, Chapter Three, Part F

Applied Insight — Elizabeth Franklin-Best, Esq., Principal Attorney: The practical effect of Amendment 836 on how the firm writes a sentencing memorandum is smaller than it looks, because the persuasive work was never in the guideline citation. It was in the exhibits. What changes is the architecture of the brief: instead of a departure section and then a variance section, there is one § 3553(a) argument, organized factor by factor, with the record attached. What we watch for is the opposite error — a memorandum that cites a deleted policy statement and invites the court to notice that counsel is working from an old form.

What actually persuades a federal judge

Adjectives do not. Documents do.

The record beats the argument. A sentence in a brief describing a defendant’s medical condition is worth very little. A treating physician’s records, a diagnosis, a medication list, and a prognosis are worth a great deal. The same is true of every category: employment is a pay history and a supervisor’s letter; substance dependence is a treatment record; trauma is a professional evaluation; family responsibility is a school letter, a benefits statement, and a specific description of who does what if the defendant goes away.

Specificity beats volume. Twenty support letters saying the defendant is a good person are worth less than four saying what he did, for whom, on what dates. Judges read the first three letters and skim the rest; the letters that survive skimming are the ones with facts in them.

Concession beats denial. A memorandum that contests the seriousness of the offense loses the reader. One that accepts the conduct, and then argues about what punishment is necessary, keeps them. This is also where acceptance of responsibility 3e1.1 intersects: language in a sentencing memorandum that reads as minimizing can put the two- or three-level adjustment at risk.

Comparison beats assertion. § 3553(a)(6) invites a disparity argument, and disparity arguments are made with data — co-defendant sentences in the same case, Commission statistics for the same guideline and criminal history category, and the Judiciary Sentencing Information platform the Commission maintains for judges. An unsupported claim that “similar defendants receive less” is worse than no claim.

A specific ask beats a general plea. Ask for a number, or a range, and explain what makes it sufficient. Courts respond badly to “we ask the Court to impose a reasonable sentence.”

Building the § 3553(a) argument: what to attach

A variance argument is an evidentiary exercise. Below is the working table — the factor, the kind of claim it supports, and the document that makes the claim credible. Nothing in the right-hand column is exotic; almost all of it is obtainable by a defendant’s family in the weeks before sentencing.

§ 3553(a) factor	Claim it supports	What has to be attached
(a)(1) — history and characteristics	Serious medical condition	Treating physician’s records; diagnosis and prognosis; medication list; a letter addressing whether the condition can be managed in custody
(a)(1)	Mental health condition	Diagnosis; treatment history; where relevant, a forensic or clinical evaluation by a qualified expert addressing the connection to the offense conduct
(a)(1)	Substance use disorder	Treatment records, intake assessments, drug-test history, sponsor or program letters. Also the predicate for a judicial RDAP recommendation
(a)(1)	Childhood trauma or deprivation	School, child-welfare, or medical records; a psychosocial evaluation. Assertion alone is worth very little
(a)(1)	Sustained lawful employment	Pay records, tax returns, a supervisor’s letter identifying dates and duties, evidence of continued employment offers
(a)(1)	Military service	DD-214; service and VA medical records; any documented service-connected condition
(a)(1)	Caregiving responsibility	Benefits statements, school or care-facility letters, medical records of the dependant, and a specific description of who will do what if the defendant is incarcerated
(a)(2)(A) — seriousness, respect for law, just punishment	Collateral consequences already imposed	License revocation orders, termination letters, forfeiture and restitution records, immigration notices
(a)(2)(B) — deterrence	Marginal deterrent effect of additional length	Peer-reviewed literature and the Commission’s own research reports; not assertion
(a)(2)(C) — protection of the public	Low recidivism risk	Commission recidivism research keyed to age and criminal history score; a documented risk assessment where one exists
(a)(2)(D) — treatment	Programming need	Treatment records plus a specific request that the court recommend a designated program or facility
(a)(3) — kinds of sentences available	Probation or a split sentence is legally available	The zone analysis under §5C1.1 — see federal sentencing guidelines
(a)(6) — unwarranted disparity	Co-defendants or similarly situated defendants received less	Co-defendant judgments; Commission statistics for the same guideline and criminal history category
(a)(7) — restitution	Restitution paid or being paid	Payment records, escrow confirmations, a realistic payment schedule

Two rules govern the whole table.

Get it in before the presentence report is written where you can. Material supplied to the probation officer during the presentence investigation becomes part of the court’s primary document. Material filed later, attached to a memorandum, arrives second and is read second. See presentence report.

Do not attach what you have not read. A support letter that contradicts the plea colloquy, or a medical record that says something unhelpful on page four, does more damage than the argument it was meant to support.

Agreed sentences, recommendations, and the court’s power to reject them

Plea agreements interact with all of this, and the Guidelines Manual addresses it in Chapter Six, Part B.

A recommendation is not a sentence. Under Fed. R. Crim. P. 11(c)(1)(B), the government may agree to recommend a sentence or not oppose a request. The court is not bound, and U.S.S.G. § 6B1.1(b) requires the court to “advise the defendant that the defendant has no right to withdraw the plea if the court does not follow the recommendation or request.”

An agreed sentence is different — but the court can still reject it. Under Rule 11(c)(1)(C) the parties may agree that a specific sentence is the appropriate disposition. Section 6B1.1(c) provides that “the court may accept the agreement, reject it, or defer a decision until the court has reviewed the presentence report,” and the Commission “recommends that the court defer acceptance of the plea agreement until the court has reviewed the presentence report.” If the court rejects a (c)(1)(A) or (c)(1)(C) agreement, § 6B1.3 requires it to say so on the record, “advise the defendant personally that the court is not required to follow the plea agreement and give the defendant an opportunity to withdraw the plea,” and warn that if the plea is not withdrawn “the court may dispose of the case less favorably toward the defendant than the plea agreement contemplated.”

The standard the court applies was rewritten by Amendment 836. Section 6B1.2, as amended effective November 1, 2025, now provides that the court may accept a (c)(1)(B) recommendation or a (c)(1)(C) agreed sentence if it is satisfied either “(1) the agreed sentence is within the applicable guideline range; or (2)(A) the agreed sentence is outside the applicable guideline range for justifiable reasons; and (B) those reasons are set forth with specificity in the statement of reasons form.” The old departure-based formulation is gone. What the parties now have to supply is a justification the court can write down under 18 U.S.C. § 3553(c).

Dismissed counts still count. Section 6B1.2(a) is blunt about it: a plea agreement dismissing a charge “shall not preclude the conduct underlying such charge from being considered under the provisions of §1B1.3 (Relevant Conduct) in connection with the count(s) of which the defendant is convicted.” A negotiated dismissal narrows the counts of conviction; it does not necessarily narrow the guideline calculation. The relevant-conduct rules that make that possible are explained on federal sentencing guidelines.

Stipulations must be honest. Section 6B1.4 requires that stipulations “set forth the relevant facts and circumstances of the actual offense conduct and offender characteristics” and “not contain misleading facts,” and provides that “[t]he court is not bound by the stipulation, but may with the aid of the presentence report, determine the facts relevant to sentencing.”

Six ways a variance argument goes wrong

1. Citing a deleted provision. A 2026 memorandum that asks for a departure under §5H1.4 or §5K2.13 tells the court the brief was assembled from an old template. Cite § 3553(a).
2. Arguing the offense was not serious. The court has already accepted a factual basis. Contesting seriousness reads as a failure to accept responsibility and can put § 3E1.1 at risk.
3. Asserting without attaching. Every claim in the table above has a document behind it. A claim without the document is a claim the government will describe as unsupported, and it will be right.
4. Asking for nothing specific. “A reasonable sentence” is not a request. Name the number and explain why it is sufficient.
5. Ignoring the guideline calculation. A variance argument is not a substitute for a presentence report objection. Two levels correctly removed from the calculation are worth more than a paragraph of prose, and they change the benchmark the court is moving away from.
6. Forgetting the mandatory minimum. No amount of § 3553(a) argument reaches below a statutory floor. Only the safety valve, a § 3553(e) motion, or clemency does. See mandatory minimum sentence.

Notice: what the court has to tell you before it goes outside the range

Departures required notice. Fed. R. Crim. P. 32(h) requires the court, before departing on a ground not identified in the presentence report or a party’s prehearing submission, to give the parties “reasonable notice” specifying the ground.

Variances do not. Irizarry v. United States, 553 U.S. 708 (2008), holds that Rule 32(h) “does not apply to 18 U.S.C. § 3553 variances by its terms,” and that “[t]he due process concerns that motivated the Court to require notice in a world of mandatory Guidelines no longer provide a basis for this Court to extend the rule.”

That has a consequence people should understand plainly: a judge may impose a sentence above the guideline range, on a ground nobody raised, without advance warning. The Court’s answer to that is a continuance, not notice — “[t]he more appropriate response to such a problem is not to extend the reach of Rule 32(h)’s notice requirement categorically, but rather for a district judge to consider granting a continuance when a party has a legitimate basis for claiming that the surprise was prejudicial.” If you are surprised at sentencing by a factual basis you could not have anticipated, ask for a continuance on the record.

The Court also offered a caution about what counts as surprise: “Garden variety considerations of culpability, criminal history, likelihood of re-offense, seriousness of the crime, nature of the conduct and so forth should not generally come as a surprise to trial lawyers who have prepared for sentencing.”

With §6A1.4 (Notice of Possible Departure) now deleted and the departure provisions gone, Rule 32(h) has very little left to operate on. In practice, notice is a courtesy in most districts and a local rule in a few.

Variances go both ways

An upward variance is the mirror image of everything above, and it is available on the same authority. A court that finds the guideline range understates the seriousness of the offense, the defendant’s history, or the risk of recidivism may sentence above it, subject to the same abuse-of-discretion review.

Two practical points follow.

Arguing for a role reduction invites scrutiny of role. A §3B1.2 motion asks the court to make a finding about relative culpability, and the government will respond with its own account. The same is true of any argument that puts the defendant’s conduct or history squarely in issue. See minor role reduction.

A weak variance argument can cost more than it gains. Requests that are transparently unsupported — a claim of medical hardship with no records, a claim of minimal involvement contradicted by the plea colloquy — damage the credibility of the arguments that are supported. Selectivity is a strategy, not a concession.

How a below-range sentence is reviewed on appeal

Two questions, in order.

Procedural reasonableness. Did the district court calculate the guideline range correctly, treat it as advisory, consider the § 3553(a) factors, rest on findings that are not clearly erroneous, and adequately explain the sentence? Gall, 552 U.S. at 51. A failure at this step is error regardless of the length of the sentence — and Molina-Martinez v. United States, 578 U.S. 189 (2016), holds that a defendant who shows the court used “an incorrect, higher range will, in the ordinary case, have demonstrated a reasonable probability of a different outcome.”

Substantive reasonableness. Was the sentence itself outside the range of choices a reasonable court could make, taking “into account the totality of the circumstances, including the extent of any variance from the Guidelines range”? This is a deferential inquiry and reversals are uncommon.

The explanation requirement matters at both steps. 18 U.S.C. § 3553(c) requires the court, “at the time of sentencing,” to “state in open court the reasons for its imposition of the particular sentence,” and where the sentence is “not of the kind, or is outside the range” it must state “the specific reason for the imposition of a sentence different from that described, which reasons must also be stated with specificity in a statement of reasons form.” Rita explains the standard: “The sentencing judge should set forth enough to satisfy the appellate court that he has considered the parties’ arguments and has a reasoned basis for exercising his own legal decisionmaking authority.”

For how each of those standards is applied in the courts of appeals, see our standards of review page.

If you are the family member reading this

About half the people who research this topic are not the defendant. They are a spouse, a parent, or an adult child, often reading at night, often while the person they are worried about is detained and unreachable. There is a short list of things a family member can actually do that makes a measurable difference to a variance argument, and it does not require legal training.

Gather the documents. Everything in the evidence table above has to be obtained from somewhere, and defense counsel is usually not the right person to chase a school district, a VA records office, or a treating physician’s practice. Medical records, service records, employment history, tax returns, benefits statements, treatment records, and school records for dependent children — a family member can request all of these and deliver them in one organized package. Do it before the presentence interview if there is time.

Write a letter that has facts in it. Not “he is a good man.” Something like: “Between March 2023 and the arrest he drove my mother to dialysis three times a week; she has no other transport and I live four states away.” Dates, roles, consequences. Then say plainly that you understand the seriousness of what happened — a letter that argues the defendant did nothing wrong hurts the person it is meant to help.

Ask counsel what is missing. Lawyers assemble mitigation from what they are given. The single most common gap is something the family knows about and nobody thought to mention: a diagnosis, a period of homelessness, a caretaking obligation, a service-connected injury.

Understand what you are being asked for and what you are not. No family member should be asked to guarantee an outcome, and no honest lawyer will predict one. What you can affect is the completeness of the record.

Come to the hearing. It matters, it is visible, and the federal sentencing hearing page explains what the room looks like, how long it takes, and what will happen in what order.

What this page does not cover

• Substantial assistance. §5K1.1 survives Amendment 836 and belongs to the government. The mechanics, Wade v. United States, and the critical distinction between §5K1.1 and § 3553(e) are at 5k1.1.
• The safety valve. A statutory route below a mandatory minimum with five criteria, narrowed by Pulsifer v. United States in 2024: safety valve federal sentencing.
• The guideline calculation itself. How the offense level and criminal history category are built: federal sentencing guidelines.
• Post-sentencing reduction. Rule 35 and §3582(c): rule 35 motion and federal sentence reduction.
• Compassionate release. federal compassionate release attorney.

Applied Insight — Christopher Zoukis, JD, MBA, Managing Director: One variance argument has a second life inside the Bureau of Prisons. Where a sentencing memorandum documents a substance-use disorder and asks the court to recommend RDAP under § 3553(a)(2)(D), and the court makes that recommendation on the record, the recommendation and the supporting documentation travel with the judgment. It is not binding on the Bureau — placement decisions are the Bureau’s — but a documented record made at sentencing is far more useful than a request made from inside two years later. See RDAP and preparing for prison.

Why work with Elizabeth Franklin-Best, P.C.

Elizabeth Franklin-Best, P.C. is a boutique federal criminal defense and appellate firm founded in 2019 and practicing nationwide on an intentionally small caseload. Elizabeth Franklin-Best has more than twenty years of federal and appellate criminal defense experience, has handled more than 330 federal proceedings, over 100 of them appeals, with sixteen published decisions as counsel of record, and is admitted to the U.S. Supreme Court and twelve of the thirteen U.S. Courts of Appeals — every regional circuit (1st–11th) plus the D.C. Circuit. She is recognized by Best Lawyers in America 2026 for Appellate Practice and by Chambers USA 2026 for Litigation: White-Collar Crime & Government Investigations, and was named South Carolina Public Defender of the Year in 2010.

An appellate practice is a useful thing to have behind a sentencing memorandum. The arguments that survive review are the arguments that were framed for review in the first place. Where a sentencing error was neither objected to nor raised on direct appeal, it generally has to travel through § 2255 instead.

Christopher Zoukis, JD, MBA, the firm’s Managing Director, leads its federal prison consulting practice and is the author of the Federal Prison Handbook, Directory of Federal Prisons, Prison Education Guide, and College for Convicts.

Talk to a federal sentencing lawyer

If sentencing is scheduled and you want to know what arguments are actually available under the current Guidelines Manual — and what a memorandum needs to attach to make them work — the firm can review the presentence report, the plea agreement, and the record.

Schedule a confidential consultation or call (843) 620-1100. Columbia office: 3710 Landmark Dr #113, Columbia, SC 29204; the firm also maintains an office in Mount Pleasant, South Carolina, and represents clients nationwide.

Frequently Asked Questions About Departures and Variances

Reviewed for legal accuracy by Elizabeth Franklin-Best, Esq., Principal Attorney·September 2026