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

56 Pages Posted: 24 Jul 2007

See all articles by Cynthia Lee

Cynthia Lee

George Washington University Law School


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's actual findings for 'clear error,' and the reasonableness of the extent of the departure for 'clear error.' In Koon v. United States, the U.S. Supreme Court purportedly rejected this tripartite standard of review, and instead proclaimed a unitary 'abuse of discretion' standard.

On the tenth anniversary of the Guidelines, legal scholars continue to vigorously debate whether Koon restored or further reduced the district court judges' 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's 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' decision to depart in the Koon case, and demonstrates how her reformulation provides better guidance to future appellate courts.

Keywords: federal Sentencing guidelines, standard of review, appellate review, sentencing departures

JEL Classification: K14, K42

Suggested Citation

Lee, Cynthia, A New 'Sliding Scale of Difference' Approach to Abuse of Discretion: Appellate Review of District Court Departures Under the Federal Sentencing Guidelines. American Criminal Law Review, Vol. 35, No. 1, 1997, GWU Legal Studies Research Paper No. 319, GWU Law School Public Law Research Paper No. 319, Available at SSRN: https://ssrn.com/abstract=1002442

Cynthia Lee (Contact Author)

George Washington University Law School ( email )

2000 H Street, N.W.
Washington, DC 20052
United States
(202) 994-4768 (Phone)

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