Departure or Variance? Distinction Significant
In United States v. Fumo, 655 F.3d 288 (3d Cir. 2011), the Third Circuit vacated the defendants’ sentence in part because the district court failed to articulate clearly whether its sentencing procedure was a departure or a variance.
During his three decades as Pennsylvania state senator, Vincent J. Fumo (“Fumo”) engaged in a wide-ranging scheme to use state funds and employees for his personal benefit. He was convicted on 137 counts of fraud, tax evasion, and obstruction of justice. At sentencing, the district court first calculated a combined offense level of 32, resulting in a Guidelines range of 121 to 151 months’ imprisonment. The court then stated it would grant a “departure” for Fumo’s extraordinary public service and sentenced Fumo to 55 months’ imprisonment and $2,084,979 in restitution. The district court subsequently stated that its sentencing procedure was “perhaps more akin to that associated with a variance than a downward departure” but that “the argument over which it was elevates form over substance.” 655 F.3d at 301.
On appeal, the Third Circuit explained that a “departure” diverges from the originally calculated sentencing range for reasons contained in the Guidelines themselves, whereas a “variance” diverges from the Guidelines range, including any departures, based on an exercise of the court’s discretion under § 3553(a). The court cautioned that the distinction between the two is important because a district court has more discretion in imposing a variance, and a sentence resulting from a variance is subject only to substantive reasonableness review, a lower standard than that applied to departures.
In this case, the appellate court noted that the district court’s statements indicated it was uncertain whether it was departing or varying. Here, the distinction was particularly significant because Third Circuit precedent places certain limitations on courts’ abilities to depart based on the good works of public officials. Accordingly, the court vacated Fumo’s sentence and remanded with instructions to first calculate the final Guidelines range, including any departures, and then consider whether the § 3553(a) factors weigh in favor of a variance. The appellate court emphasized that, to the extent the district court’s sentencing reduction was a departure rather than a variance, the district court erred by failing to calculate a new, final Guidelines range after granting the departure.