Righting the Historical Record: A Case for Appellate Jurisdiction over Appeals of Sentences for Reasonableness Under 28 U.S.C. § 1291

This Article is the first to analyze critically the jurisdictional basis for the Supreme Court’s mandate in United States v. Booker that all courts of appeals review the length of criminal sentences for “reasonableness.” The availability of appellate review has expanded greatly since the Booker opinion, and, indeed, recent research shows that the number of sentence appeals has risen. Unfortunately, the Court did not explain the jurisdictional basis for its expanded “reasonableness review.” The omission is not trivial. For decades, federal courts have held that courts of appeals do not have jurisdiction to review the length of criminal sentences. This view has been especially entrenched since 1984, when Congress created the Federal Sentencing Guidelines and a corresponding “limited” right to appeal sentences. The Supreme Court may not increase the jurisdiction of these courts; the Constitution gives this power to Congress alone. This Article revives the scholarship on the historical and legislative underpinnings of appellate review of criminal sentences in an attempt to find a justification, if any, for Booker’s expanded appellate review. The Author concludes, as have other scholars, that the courts of appeals have had jurisdiction under 28 U.S.C. § 1291 to review the length of sentences since at least 1891, and additionally argues that this jurisdiction survived the Federal Sentencing Guidelines. The Supreme Court in Booker created an entirely new type of sentencing decision, a purely discretionary decision, that lies outside the federal Guidelines system and, thus, outside that system’s limited appellate review. Accordingly, at least for these types of purely discretionary sentencing decisions, § 1291 remains the basis for jurisdiction over Booker reasonableness appeals