2005 Federal Sentencing Guidelines
CHAPTER FIVE - PART K - DEPARTURES
2. OTHER GROUNDS FOR DEPARTURE
Historical Note: Effective
November 1, 1987. Amended effective November 1, 1990 (see Appendix
C, amendment 358).
§5K2.20. Aberrant Behavior (Policy
Statement)
(a) IN GENERAL.—Except where a defendant is convicted of an offense
involving a minor victim under section 1201, an offense under section 1591,
or an offense under chapter 71, 109A, 110, or 117, of title 18, United States
Code, a downward departure may be warranted in an exceptional case if (1) the
defendant’s criminal conduct meets the requirements of subsection (b);
and (2) the departure is not prohibited under subsection (c).
(b) REQUIREMENTS.—The court may depart downward under this policy statement
only if the defendant committed a single criminal occurrence or single criminal
transaction that (1) was committed without significant planning; (2) was of
limited duration; and (3) represents a marked deviation by the defendant from
an otherwise law-abiding life.
(c) PROHIBITIONS BASED ON THE PRESENCE OF CERTAIN CIRCUMSTANCES.—The
court may not depart downward pursuant to this policy statement if any of the
following circumstances are present:
(1) The offense involved serious bodily injury or death.
(2) The defendant discharged a firearm or otherwise used a firearm or a
dangerous weapon.
(3) The instant offense of conviction is a serious drug trafficking offense.
(4) The defendant has either of the following: (A) more than one criminal
history point, as determined under Chapter Four (Criminal History and Criminal
Livelihood) before application of subsection (b) of §4A1.3 (Departures
Based on Inadequacy of Criminal History Category); or (B) a prior federal
or state felony conviction, or any other significant prior criminal behavior,
regardless of whether the conviction or significant prior criminal behavior
is countable under Chapter Four.
Commentary
Application Notes:
1. Definitions.—For
purposes of this policy statement:
"Dangerous weapon," "firearm," "otherwise used," and "serious bodily injury" have
the meaning given those terms in the Commentary to §1B1.1 (Application
Instructions).
"Serious drug trafficking offense" means any controlled substance offense
under title 21, United States Code, other than simple possession under 21 U.S.C. § 844,
that provides for a mandatory minimum term of imprisonment of five years or
greater, regardless of whether the defendant meets the criteria of §5C1.2
(Limitation on Applicability of Statutory Mandatory Minimum Sentences in Certain
Cases).
2. Repetitious or Significant, Planned
Behavior.—Repetitious or significant, planned behavior does
not meet the requirements of subsection (b). For example, a fraud scheme
generally would not meet such requirements because such a scheme usually
involves repetitive acts, rather than a single occurrence or single criminal
transaction, and significant planning.
3. Other Circumstances to Consider.—In
determining whether the court should depart under this policy statement, the
court may consider the defendant’s (A) mental and emotional conditions;
(B) employment record; (C) record of prior good works; (D) motivation for committing
the offense; and (E) efforts to mitigate the effects of the offense.
Background: Section 401(b)(3)
of Public Law 108–21 directly amended subsection (a) of this policy statement,
effective April 30, 2003.
Historical Note: Effective
November 1, 2000 (see Appendix
C, amendment 603). Amended effective April 30, 2003 (see Appendix
C, amendment 649); October 27, 2003 (see Appendix
C, amendment 651).