The Commission, in an effort to remain relevant, expanded the form to track courts' bases for variances. There is still a section for departures (those still exist in the 10th Circuit) but also a section for 3553(a) and "other" reasons. These include:
- Lack of youthful guidance;
- pre-sentence rehabilitation;
- issues with criminal history;
- non-violent offender;
- cooperation with the government without a 5K;
- waiver of appeal; and
- policy disagreement with the guidelines (citing Kimbrough).
Most of these are good options, and our sentencing arguments can be tailored to the factors.
But the last option is incredible, and incredibly bad: "In the event the guideline determination(s) made in this case are found to be incorrect, the court would impose a sentence identical to that imposed in this case."
We have to think about this. Comments welcome.