Criminal Law

Other Grounds for Departure - Departures - Determining the Sentence

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§5K2.0GUIDELINES MANUALNovember 1, 2005

been recognized in practice and by statute as a mitigating sentencing factor. The nature, extent, and significance of assistance can involve a broad spectrum of conduct that must be evaluated by the court on an individual basis. Latitude is, therefore, afforded the sentencing judge to reduce a sentence based upon variable relevant factors, including those listed above. The sentencing judge must, however, state the reasons for reducing a sentence under this section. 18 U.S.C. § 3553(c). The court may elect to provide its reasons to the defendant in camera and in writing under seal for the safety of the defendant or to avoid disclosure of an ongoing investigation.

Historical Note:: Effective November 1, 1987. Amended effective November 1, 1989 (see Appendix C, amendment 290).

§5K1.2. Refusal to Assist (Policy Statement)

A defendant’s refusal to assist authorities in the investigation of other persons may not be considered as an aggravating sentencing factor.

Historical Note:: Effective November 1, 1987. Amended effective November 1, 1989 (see Appendix C, amendment 291).

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2. OTHER GROUNDS FOR DEPARTURE

Historical Note:: Effective November 1, 1987. Amended effective November 1, 1990 (see Appendix C, amendment 358).

§5K2.0. Grounds for Departure (Policy Statement)

(a) UPWARD DEPARTURES IN GENERAL AND DOWNWARD DEPARTURES IN CRIMINAL CASES OTHER THAN CHILD CRIMES AND SEXUAL OFFENSES.—

(1) IN GENERAL.—The sentencing court may depart from the applicable guideline range if—

(A) in the case of offenses other than child crimes and sexual offenses, the court finds, pursuant to 18 U.S.C. § 3553(b)(1), that there exists an aggravating or mitigating circumstance; or

(B) in the case of child crimes and sexual offenses, the court finds, pursuant to 18 U.S.C. § 3553(b)(2)(A)(i), that there exists an aggravating circumstance,

of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that, in order to advance the objectives set forth in 18 U.S.C. § 3553(a)(2), should result in a sentence different from that described.

(2) DEPARTURES BASED ON CIRCUMSTANCES OF A KIND NOT

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