A Book from the Library of Defense
Namespaces
Variants
Actions

Library Collections

Webinars & Podcasts
Motions
Disclaimer

More upward departure challenges

From OCDLA Library of Defense
< Blog:Main
Revision as of 12:07, August 31, 2017 by Ryan@ryanscottlaw.com (Talk | contribs)

(diff) ← Older revision | Latest revision (diff) | Newer revision → (diff)
Jump to: navigation, search

by: Ryan Scott • August 30, 2017 • no comments

Whenever you receive an upward departure notice, you should review the relevant OARs, which can be found here.

This is because the OARs may provide a defense that isn't obvious from the notice. For example, the OAR on vulnerable victim is quite explicit that the defendant must have known of the specific vulnerability. Further, it's not enough that the person is "vulnerable" but that the vulnerability "increased the harm or threat of harm." That will not be true in all cases. I also like the use of the word "extreme." In the context of age, I'm inclined to think that 14 isn't an extreme age. Nor is seventy.

(B) The offender knew or had reason to know of the victim's particular vulnerability, such as the extreme youth, age, disability or ill health of victim, which increased the harm or threat of harm caused by the criminal conduct.

Also of note is the limitation on the "multiple victims" enhancement.

(G) The offense involved multiple victims or incidents. This factor may not be cited when it is captured in a consecutive sentence.

In certain cases, that second sentence is key.