Departure Considerations in Virginia Embezzlement Cases

If a person faces a charge for a fraud offense, a distinguished embezzlement lawyer can instruct them to begin immediately preparing for sentencing. At sentencing, the attorney can ask the court to depart downward from the sentencing guideline recommendation. There are many variables that go into departure considerations in Virginia embezzlement cases. The person can prepare a file documenting prior good deeds, previous volunteering before they were charged, and community service hours performed after the person was charged.

Upward vs. Downward Departure

Every felony embezzlement case yields a calculation of Virginia sentencing guidelines. The sentencing guidelines identify a number of years or months the court should consider when determining an appropriate sentence. That number is the sentencing range which can be fairly large when the sentencing guidelines come up higher. The lowest range available under Virginia is seven months to one year under the sentencing guidelines for embezzlement and the highest is six to 15 years.

The judge usually sentences within the sentencing guidelines range of recommended sentencing. However, the judge might decide that the sentencing guidelines recommendation is too low or too high based on various reasons. The judge can sentence higher or lower than what the guidelines recommend.

What is Departure?

Departure is when a judge sentences to a period of incarceration above or below the guideline. Up for departure considerations in Virginia embezzlement cases means the court is sentencing a person to a number of months or years that is higher than what the guidelines recommend. A downward departure is where the judge sentences the person to a lesser number than is recommended by the guidelines.

Uncoerced Plea Bargains

Coercion implies that a person was threatened through means considered outside the lines by a government attorney. A coerced plea is a plea that should be subject to being overturned by the court when the defense provides evidence that the plea was coerced. There is a natural assumption in the courts that a plea was not coerced; therefore, the courts believe an un-coerced plea should not be given any weight.

Role of a Potential Client

In federal court, a sentencing lawyer can make a motion for a downward departure considerations in Virginia embezzlement cases. In Virginia, the sentencing lawyer files a sentencing memorandum asking if the court could go below or the lawyer makes the request in person in court. There is no motion for downward departure in Virginia law because that is handled federally.

Courts almost always consider previous military service as a basis for downward mitigation. The person can present letters from people in positions of authority who know them and can speak to their character. The goal of the file is to paint the full picture of the person and not just the picture of the person who committed these crimes. People sometimes do things out of desperation and make terrible decisions that cost them tremendous amounts of money and time in terms of the criminal process.

An attorney can argue that criminal conduct is just one snippet in that person’s life. The court should take into account everything about that person when fashioning the sentence including all the good things the person accomplished in their life. That is the best way to get a downward departure and avoid an upward departure.

How a Defense Attorney Proves Coercion

When the defendant claims they were coerced into a plea, the first thing they need to do is get a new lawyer. Every defense attorney must sign off on a plea agreement. Part of that signature implies that the attorney states as a matter of record to the court that the plea was not made under duress or any kind of other coercion. When the defendant claims they were forced into a plea by virtue of government coercion, they need to get themselves a new lawyer who can investigate the circumstances that led up to the plea to determine whether coercion was made.

Example of Coercion

An example of coercion might be that the government threatens to deport family members if the defendant does not agree to plead guilty or the government might otherwise infringe on the defendant’s life or their family’s lives to get the person to plead guilty. If the new defense attorney can uncover evidence of that and is able to present it to the court, the plea can be vacated. A coerced plea does not result in the downward departure, it results in tossing out the plea. When an attorney has evidence of a coerced plea, they do not argue that as a sentencing. They argue that as a motion to withdraw the plea.