Why the Departure/Variance Distinction Matters

In a recent case, the Fifth Circuit noted that it continues to draw a distinction between variances based on 3553(a) factors, and Guidelines departures. I suggested at the time that this "may be little more than a formal distinction, given the Fives' deferential approach to substantive reasonable review."

Turns out I hadn't thought through the issue thoroughly enough, as demonstrated by this post by Sumter Camp at the Sixth Circuit Blog. I had forgotten that, pre-Booker, a district court's discretionary refusal to depart was unreviewable on appeal. And if a court of appeals continues to observe a distinction between departures and variances, then the district court's rejection of a defendant's request for a lower sentence based solely on departure grounds would not be reviewable. That's the conclusion the Sixth Circuit reached in United States v. Blue. And though I haven't found a published, post-Booker Fifth Circuit opinion reaching the same conclusion, there are some unpublished opinions that have so held (like this one, for example).

How to avoid this appellate trap? As Sumter notes:

[You can] present mitigation as grounds for both a Guidelines departure and a downward variance under § 3553(a). Given that the district courts must still consider the Guidelines, the failure to address a ground for departure under the Guidelines may very well be unreasonable on appeal. And any ground that is limited by some Guidelines factor (e.g. the §5K1.1 requirement that the government, not the defendant, must file the §5K1.1 motion), can still be considered under § 3553(a) as relevant to what sentence is sufficient, but not greater than necessary, to achieve the aims of sentencing. Even a ground that is prohibited by the Guidelines can now be considered under the § 3553(a) factors as relevant to sentencing.

One exception, at least in our circuit, is when it comes to arguing for a 3553(a) variance based on unwarranted fast-track disparities (or maybe not). In any event, you can still preserve that argument in the district court for further review in light of the circuit split.