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Ely, Counselor at Law
Category: Criminal Law
Satisfied Customers: 3029
Experience:  Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
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To win a downward departure what will be considered

Customer Question

To win a downward departure what will be considered for a win example I have no criminal record I have work history I don't need to foundations in need will any of that help me when a downward departure and if not what will be considered for motion for downward departure to be granted
Submitted: 6 months ago.
Category: Criminal Law
Expert:  Legal-Kal replied 6 months ago.
Thank you for requesting me again. Unfortunately, I will be away from my computer for the next hour. I will be more than happy to assist you if you can wait. If not, please let me know and I can unlock the question and open it up to another expert who may be able to assist in the meanwhile.
Customer: replied 6 months ago.
No I'll wait for you
Expert:  Legal-Kal replied 6 months ago.
Thank you for your patience. I want to state, however, upon reading this question, it is evident that you are asking under federal criminal laws and sentencing guidelines. Your prior question that I provided general information was based upon NY state law (as I had assumed that your question was referring to state as opposed to federal laws). That being said, let me address your prior question, under federal laws, first: Under federal law, arson committed for the purposes of obtaining a financial gain from an insurance claim (assuming no injuries) is a "2nd degree" felony. The statute of limitations for all federal criminal actions is 5 years, unless it is a capital offense (punishable by death). If it is a capital offense, then there is no statute of limitations. You mentioned that you had read that the statute of limitations could also be ten years (in addition to other amounts). These "other" statute of limitations are essentially for arson committed: in the destruction of federal military equipment/buildings/vehicles, etc.; arson committed during the commission of other federal offenses (i.e., interstate kidnapping, which is a federal crime in and of itself combined with an act of arson); and arson destroying vehicles that are used in interstate commerce (which is essentially trucks, planes, vehicles used to transport items/people across state lines, etc) if harm occurs to an individual. Since I am not overly familiar with the facts present in your question, I am under the presumption that it is a "straight-forward" arson not resulting to harm/death of an individual and not destroying any property or vehicle used in interstate commerce. As to what role arson for "profit" plays, other than what was discussed above, it allows a Court to fine an individual either double what was paid out by the insurance company, or the maximum fine for the offense, whichever of the two are greater. I apologize for the mix up. Do you have any follow up questions based on this before moving on to the question regarding sentencing departures?
Customer: replied 6 months ago.
No just a question about downward departure
Expert:  Legal-Kal replied 6 months ago.
Please bear with me as I am having issues with the JustAnswer website on my desktop and am typing this response on my phone. Regarding criminal sentencing, the area is rich with minutiae and details that are very important for guideline purposes (I.e. information that would determine what zone and level you are placed in), which I am not privy to here. Without hesitation, a sentence of probation would be the ultimate "win." However, the single most important factor in determining how much, if any, of a downward departure ought to occur is a defendants criminal history (some would argue responsibility too). There are issues of a defendant being a career offender, one who has a pattern of criminal activities as their livelihood and those subject to armed dangerous criminal statutes which the courts consider in sentencing. I will pause here for a moment to see if it is the website having an issue or my equipment as this is becoming a tad difficult to type on my phone. Please bear with me a few moments.
Customer: replied 6 months ago.
Np take all the time you need to answer the question I can wait for your response
Expert:  Legal-Kal replied 6 months ago.
Thank you for the patience. Apparently a quick reboot was needed. Now, as I am sure you are aware, if the Courts find an individual accepts responsibility for the act, the Courts are authorized to reduce the sentencing. But since you are asking about criminal history, I will try to respond to that portion. A lack of criminal history is very important. For instance, the Courts are allowed to find that a certain act was "aberrant" which essentially means that the crime committed was outside of the individual's normal behavior. This coincides with what you provided before regarding your lack of prior criminal history (which is a reason for departure in and of itself). The most important information that AUSAs and Courts consider in sentencing comes from the Pre-Sentence Report. In federal courts, the sentencing laws rely heavily on factors that are listed (in detail) in that report. Unfortunately, without knowing almost every single allegation the U.S. Attorney's Office is alleging, i.e., whether explosives were involved or planned to be involved, the risk posed to innocent individuals, the exact charge, the act giving rise to the federal jurisdictional hook for the offense; and without knowing the fine details found in such a report, I cannot provide the information that you are looking for, outside of the general information provided above. I am sorry I could not have been of more assistance on this topic. If you would like, I would be happy to opt-out and open the question up to a new expert who may be able to devote more time to fleshing out the important details needed to provide a fuller response. Please let me know if you would like this option.

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