What Is a Sentencing Variance in Federal Court and Why a Great Sentencing Memorandum Matters
By James L. Spies | AggressiveCriminalLaw.com
When most people hear they are going to be sentenced in federal court, they assume the Federal Sentencing Guidelines are set in stone. The truth is very different. The Guidelines are only advisory, not mandatory, and judges have the power to go above or below the recommended range. That is called a variance, and it can make all the difference in how much time a person actually serves.
What Is a Sentencing Variance?
A sentencing variance happens when a judge imposes a sentence outside of the calculated guideline range. For example, if the Guidelines suggest 57 to 71 months, but the judge imposes 36 months or even probation, that is a variance.
It is important to know that a variance is different from a “departure.” A departure is an adjustment allowed within the Guidelines themselves. A variance, by contrast, is based on the broader factors that Congress laid out in 18 U.S.C. § 3553(a), such as the nature of the offense, the defendant’s history, the need for rehabilitation, and avoiding unfair sentencing disparities.
When Do Judges Grant Variances?
Every case is unique, but judges often consider variances when:
The guideline range is unreasonably harsh for the facts of the case.
The defendant has strong evidence of rehabilitation or treatment progress.
Family responsibilities, medical conditions, or unusual circumstances make prison especially damaging.
The Guidelines do not fully account for the specific conduct involved.
Sentencing within the range would create an unjust disparity compared to similar cases.
Since the Supreme Court’s decision in United States v. Booker (2005), judges have wide discretion. That means the defense has a real opportunity to persuade.
The Power of a Sentencing Memorandum
This is where the defense lawyer’s work can change everything. A sentencing memorandum is the roadmap you hand the judge before the hearing. It is not just a legal brief, it is your client’s story on paper.
A great memo should include:
Personal background: Childhood, education, work history, and positive contributions.
Mitigating circumstances: Mental health, addiction recovery, or medical issues.
Letters of support: Family, employers, community members.
Expert opinions: Psychologists, treatment providers, or medical experts.
Alternative sentencing options: Probation, community service, treatment programs.
Without it, the judge is left with only the Presentence Investigation Report (PSR) and the prosecutor’s memo, two documents that rarely capture the full humanity of the person being sentenced.
Why Every Detail Matters
Judges do read sentencing memoranda, and often quote from them in court. A thoughtful, well-supported memo can show the court that your client is more than a case number, that they are a person with a future worth investing in.
Cookie-cutter filings do not work here. Federal judges can spot them instantly. What matters is credibility, preparation, and tailoring the arguments to what resonates with that particular judge and district.
Conclusion
Federal sentencing is not one-size-fits-all. A variance can mean the difference between years in prison and a second chance. And a well-crafted sentencing memorandum is often the key to achieving it.
If you or someone you love is facing sentencing in federal court, do not settle for an attorney who simply accepts the Guidelines. Work with a lawyer who knows how to fight for a variance and tell your story the right way.
