On November 1, 2025, the most recent amendments to the U.S. Sentencing Guidelines Manual went into effect. Among other changes, the amendments streamline the sentencing process from three steps to two by eliminating the requirement that sentencing courts consider departures, which have now been removed from the operative text of the guidelines. As amended, the guidelines manual provides a two-step process whereby the sentencing court must (1) calculate the applicable advisory guidelines range, and (2) determine an appropriate sentence upon consideration of all the factors set forth by Congress in Title 18, U.S. Code, Section 3553(a).

In enacting this change, the U.S. Sentencing Commission acknowledged and conformed the guidelines to reality; variances account for the vast majority of non-guidelines range sentences. While the Sentencing Commission anticipates that this amended two-step process will be outcome neutral, it should simplify sentencing for all parties.

Background

In response to concerns over inconsistency in federal sentencing practices, the Commission was established by the Sentencing Reform Act of 1984. Among several responsibilities, the Commission was charged with developing sentencing guidelines for offenders convicted of federal crimes. The Commission first promulgated the guidelines in 1987 to promote fairness, transparency, and consistency in federal sentencing proceedings. These mandatory guidelines required federal judges to impose sentences within a prescribed range, with limited discretion to account for aggravating or mitigating factors not addressed by the guidelines. 

This framework was upended by the U.S. Supreme Court’s 2005 decision in U.S. v. Booker, which held that the guidelines were advisory, not mandatory. Judges were thus directed to consult the guidelines, but also to impose sentences that consider the factors set forth in Section 3553(a), including the nature and circumstances of the offense and the history and characteristics of the defendant, to ensure that a sentence is “sufficient, but not greater than necessary.”

In the two decades following Booker, the distinction between departures, which are based on specific provisions in the guidelines, and variances, which are authorized by Section 3553(a), was often blurry.  Increasingly, courts shifted toward applying variances rather than departures, relying on the discretion afforded by Section 3553(a) to tailor sentences to the unique facts of each case. The Supreme Court’s 2008 decision in Irizarry v. United States,which held that variances, unlike departures, did not trigger the notice requirement under Federal Rule of Criminal Procedure 32(h), further motivated the shift. As an example, for fiscal year 2024, sentencing data collected and analyzed by the Commission demonstrated that courts applied variances in 32% of sentencing proceedings. By comparison, courts applied departures (including government-sponsored departures) in only 4% of sentencing proceedings.

The 2025 Amendments

Prior to the 2025 amendments to the guidelines, sentencing courts followed a three-step process:

1. Calculate the applicable advisory guidelines range;
2. Consider the departure provisions scattered throughout the guidelines; and
3. Consider the Section 3553(a) factors to decide whether a variance should apply.

As mentioned above, sentencing data showed that sentencing courts increasingly eschewed departures, applying Section 3553(a) variances instead. The 2025 amendments to the guidelines recognize this trend by collapsing the second and third steps into a single step. Under this simplified two-step process, courts calculate the guidelines range as the “starting point and initial benchmark,” and then consider the Section 3553(a) factors in determining whether a variance from the guidelines is warranted.

The remainder of the guidelines conform to this simplified two-step process; the words “departure” and “depart” have been removed from the operative text, as have policy statements relating to specific personal characteristics. Several former downward departure provisions remain in a different form: (1) Section 5K1.1 (substantial assistance to authorities) no longer states that courts “may depart from the guidelines” where a defendant provides substantial assistance, but rather that “a sentence below the otherwise applicable guideline range may be appropriate,” and (2) Section 5K3.1 (early-disposition programs) is now Section 3F1.1 and provides that a court “may decrease” a defendant’s offense level pursuant to an early disposition program.

The deleted departure provisions are preserved in Appendix B of the guidelines, recognizing that the rationales underlying the deleted departure provisions remain informative when evaluating variances. The amended guidelines manual’s introductory commentary makes clear that judges who would have relied upon facts previously identified as a basis for a departure continue to have the authority to rely upon such facts, or any other relevant factors, to impose a sentence outside of the applicable guidelines range as a variance under 18 U.S.C. § 3553(a).

Practical Effect

This new two-step approach is designed to make the sentencing process more streamlined and transparent. Judges and parties no longer need to spend time analyzing whether a particular circumstance qualifies as a departure or a variance. Rather, the entire assessment is conducted at once pursuant to Section 3553(a). The Commission envisions that the removal of departures will be “outcome neutral” and sentencing proceedings more straightforward.