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A New 'Sliding Scale Of Difference' Approach To Abuse Of Discretion: Appellate Review Of District Court Departures Under The Federal Sentencing Guidelines, Cynthia Lee

GW Law Faculty Publications & Other Works

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 …