A New \u27Sliding Scale of Difference\u27 Approach to Abuse of Discretion: Appellate Review of District Court Departures Under the Federal Sentencing Guidelines

Prior to the Federal Sentencing Guidelines, criminal sentences were rarely appealed. For the first two years after implementation of the Guidelines, most appellate courts applied a tripartite standard of review when reviewing Guideline departures. Under this framework, courts reviewed the existence of an aggravating or mitigating factor de novo, the district court\u27s actual findings for \u27clear error,\u27 and the reasonableness of the extent of the departure for \u27clear error.\u27 In Koon v. United States, the U.S. Supreme Court purportedly rejected this tripartite standard of review, and instead proclaimed a unitary \u27abuse of discretion\u27 standard. On the tenth anniversary of the Guidelines, legal scholars continue to vigorously debate whether Koon restored or further reduced the district court judges\u27 sentencing discretion. Professor Lee presents both sides of this debate by analyzing and critiquing Koon, and ultimately proposes more simplified language to distinguish between the different standards of review. She starts by providing a historical overview of sentencing in the federal courts. She then discusses general principles of appellate review, providing a primer on standard of review jurisprudence for findings of facts, questions of law, mixed questions and discretionary decisions. Next, Professor Lee examines the Supreme Court\u27s jurisprudence on appellate review of sentencing decisions under the Guidelines. Professor Lee proposes a reformulation of the Koon standard to reflect a sliding scale of deference approach which specifies varying degrees of deferential review for the different aspects of the departure decision. Lee applies this framework to Judge Davies\u27 decision to depart in the Koon case, and demonstrates how her reformulation provides better guidance to future appellate courts