A new 'sliding scale of deference' approach to abuse of discretion: appellate review of district court departures under the federal sentencing guidelines.

• Author: Lee, Cynthia K.Y.

1. INTRODUCTION

2. SENTENCING IN THE FEDERAL COURTS: A HISTORICAL OVERVIEW

3. PRINCIPLES OF APPELLATE REVIEW

   1. Clearly Erroneous Review for Factual Findings

   2. De Novo Review for Questions of Law

   3. Review of Mixed Questions

   4. Abuse of Discretion Review

4. APPELLATE REVIEW OF DISTRICT COURT DEPARTURE DECISIONS UNDER THE FEDERAL SENTENCING GUIDELINES

   1. The Scope of Appellate Review Under the Guidelines (Williams

      v. United States)

   2. Applicable Standard of Review (Koon v. United States)

      1. Pre-Koon Tripartite Standard of Review

      2. Koon's Abuse of Discretion Standard of Review

      a. A New Standard of Review

      i. Congressional Intent

      ii. Institutional Competence

      iii. Need for Flexibility

      iv. Other Considerations

      (a) The argument for nondeferential review of departures

      (b) The argument for deferential review of departures

      b. The Court's Application of Its Unitary Abuse of Discretion

      Standard--Anything but Unitary

5. CLARIFYING THE MEANING OF ABUSE OF DISCRETION

   1. A New "Sliding Scale of Deference" Approach to Abuse of

      Discretion

   2. Applying the New Framework

      1. Victim Misconduct

      2. Collateral EmploYment Consequences

      3. Low Likelihood of Recidivism

      4. Susceptibility to Abuse in Prison

      5. Successive Prosecutions

6. CONCLUSION

   APPENDIX

1. INTRODUCTION

   This year marks the tenth anniversary of the federal sentencing guidelines (the Guidelines), which took effect on November 1, 1987.(1) After almost a decade of Guidelines sentencing, it would behoove legal academics, criminal law practitioners, judges, and others concerned about criminal justice to reflect upon the strengths and weaknesses of the Guidelines.(2) Most of the criticism of the Guidelines has been directed at the allocation of decision-making power between district courts and the United States Sentencing Commission (the Sentencing Commission).(3) This Article, in contrast, discusses the allocation of decision-making power between district judges and appellate judges.

   Appellate courts apply different standards of review to different types of district court decisions. The applicable standard of review is extremely important because it can have just as much, if not more, influence upon the disposition of the appeal as the merits of the case. This is because the standard of review reflects the amount of deference which the appellate court should accord the trial court's decision. If the standard of review is de novo, the trial court's decision may easily be reversed, because the appellate court is not required under de novo review to give any deference at all to the trial court's conclusions. If, on the other hand, the standard of review is clearly erroneous, the trial court's decision is likely to be affirmed, because clearly erroneous review instructs appellate courts to pay great deference to the lower court's decisions. In between de novo and clearly erroneous review is abuse of discretion review, an amorphous black hole in which different appellate courts apply different, seemingly contradictory, degrees of deference to lower court decisions.

   One of the most significant changes to sentencing brought about by the Guidelines is the possibility of appeal. Prior to the Guidelines, sentences were rarely appealed, because it was understood that sentencing was a matter completely within the discretion of the district court.(4) The Guidelines seek to limit the district court's sentencing discretion by specifying a narrow range of sentences within which the district judge is supposed to sentence the offender. If, however, the district judge finds that the case is atypical because a factor exists which was not adequately considered by the Sentencing Commission in drafting the Guidelines,(5) the district Judge may depart--that is, impose a sentence which is higher or lower than that required by the Guidelines. In view of the fact that frequent departures could undermine the goal of achieving sentencing uniformity, and to encourage compliance with the Guidelines, the Sentencing Reform Act provides that any time a district judge departs from an applicable guideline range, the aggrieved party (government or defendant) may appeal the departure sentence.(6) Thus, whenever a district court departs, the departure sentence may be reversed on appeal.

   Until recently, most appellate courts applied a tripartite standard of review when reviewing district court decisions to depart from the Guidelines.(7) Under this approach, appellate courts applied "de novo" or non-deferential review, to the question of whether there existed an aggravating or mitigating factor of a kind or to a degree not adequately considered by the Sentencing Commission: "clearly erroneous," or highly deferential review, to the district court's factual findings; and "abuse of discretion," or substantially deferential review, to assess the reasonableness of the extent of the departure.(8)

   Last term, in what has been called "the most important sentencing case since the Supreme Court upheld the constitutionality of the guidelines in 1989."(9) the Court in Koon v. United States.(10) purported to reject this tripartite standard of review, holding that appellate courts must apply a unitary "abuse of discretion" standard of review, giving substantial deference to district court departure decisions. Koon prompted many court observers to claim that sentencing discretion, long constrained by the Guidelines themselves and further constrained by plenary appellate review, had been restored to district court judges. Underlying such claims was the assumption that appellate courts would refrain from rigorous scrutiny of district court departures and affirm most departure sentences. A few academics contested the prevailing opinion, arguing that Koon still allows the appellate court to review de novo certain aspects of the district court's departure decision and thus does not significantly change the relationship between appellate courts and district courts.

   This Article enters the scholarly debate, agreeing with the minority view that language in Koon permits de novo review of certain aspects of the departure decision. This Article also clarifies and critiques Koon. It clarifies by illustrating that Koon's abuse of discretion umbrella is wide enough to include de novo review. The Article criticizes Koon for portraying its abuse of discretion standard as a unitary standard when abuse of discretion under Koon actually includes differing degrees of deferential review depending upon the nature of the inquiry. This Article suggests that Koon's abuse of discretion standard of review should be reformulated to reflect a "sliding scale of deference" framework. This Article also proposes that more simplified language be adopted to express what is meant by de novo, clearly erroneous, and abuse of discretion.

   Part II of this Article provides an historical overview of sentencing in the federal courts to give the reader an understanding of the issues that gave rise to the Guidelines. Part III lays the foundation for an informed analysis of the Supreme Court's jurisprudence on appellate review under the Guidelines. It discusses general principles of appellate review, and provides a brief sketch of standard of review jurisprudence for findings of fact, questions of law, mixed questions, and discretionary decisions.

   Part IV examines the Supreme Court's jurisprudence on appellate review of district court sentencing decisions under the Guidelines, starting with Williams v. United States.(11) Williams is significant because it foreshadows the policy of deference which the Court adopted in Koon v. United States.(12) Koon instructs appellate courts to substantially defer to most aspects of the district court's departure decision and review other aspects de novo. However, because the Court describes its abuse of discretion standard of review as a "unitary" standard, Koon fails to provide sufficient guidance to appellate courts regarding which aspects of the departure decision should be accorded substantial deference, and which should be subject to de novo review. In light of this deficiency, a clear framework--one that has not been provided by any of the post-Koon commentary--is needed.

   Part V argues that rather than using the misleading term "unitary" to describe Koon's abuse of discretion standard of review, the abuse of discretion standard should be reformulated to reflect a sliding scale of deference approach in which differing degrees of deference (highly deferential, substantially deferential, moderately deferential, and non-deferential) are applied depending upon the specific inquiry involved. Part V suggests one framework which might be adopted and demonstrates how this new framework would work by applying it to the departure undertaken in Koon.

2. SENTENCING IN THE FEDERAL COURTS: AN HISTORICAL OVERVIEW

   Originally, sentencing in the federal courts was strictly governed by the legislature.(13) Under the old system of fixed or determinate sentences, the focus was upon the crime of conviction rather than the individual offender.(14) In 1870, sentencing in the federal courts shifted to an indeterminate model of sentencing which focused on the possibility of rehabilitating the offender.(15) Under indeterminate sentencing, judges overseeing criminal cases in federal courts enjoyed broad. virtually unreviewable discretion over sentencing matters.(16) Federal district court judges had the power to sentence offenders to any sentence they felt was appropriate as long as they stayed within the statutory minimums and maximums set by Congress, if any existed.(17) Judges Were not required to give reasons for the sentences imposed.(18) Moreover, judicial sentencing decisions were not subject to appellate review except In narrowly defined circumstances.(19) Because appellate courts tended to be extremely deferential to the sentencing judge, few sentences were appealed.(20) Those that were appealed generally were affirmed.(21)

   Disparity in sentencing was a...