Even after the judge takes into consideration the statutory sentencing provisions, and the federal sentencing guidelines, the judge can also consider the defendant’s arguments for a downward variance (or a prosecutor’s argument for an upward variance) from the recommended guideline range of punishment.
Arguments for a variance are only limited by the imagination and creativity of the best wire fraud attorney. Common variance requests are based on the good works performed by the Defendant during his lifetime, the Defendant’s ongoing responsibilities that would be impeded by incarceration, full payment of restitution, poor health that cannot be attended to while incarcerated, and the list goes on.
In the event of a successful argument for a downward variance, there are options other than total incarceration with which the judge has the discretion to fashion an appropriate punishment. Some convicted defendants have successfully applied for supervised release, others have been sentenced to home confinement, or minimal prison sentence followed by placement in a half-way house.
These prison alternatives should always be explored and sought after when proceeding to a sentencing hearing after a wire fraud or mail fraud conviction.