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"Departure" or "Variance," that is the Question

By Candace Hom, Melinda Ghilardi, Nancy Rimmer, Sarah Gannett, Renee Pietropaolo and Tieffa Harper

District courts must speak clearly before striking with a big stick, the Court reiterates in United States v. Brown, No. 08-1221, vacating a child pornography sentence when the record left ambiguous whether the district court had "departed" upward pursuant to a Guidelines application note or "varied" upward on the basis of its own statutory sentencing discretion. The remand follows the Court?s construction of the application note in a manner favoring the defendant.Reaffirming that punctilious care in Guidelines calculations is essential even under an advisory regime ? an approach from which the Second Circuit recently endorsed exceptions (opinion here) ? the Court reminded that it "expressly distinguish[es] between departures from the guidelines and variances from the guidelines...continue to full post

Full post as published by Third Circuit Blog on August 28, 2009 (boomark / email).