66 S. Cal. L. Rev. 621 (1992-1993)
Certain Uncertainty: Appellate Review and the Sentencing Guidelines

handle is hein.journals/scal66 and id is 637 raw text is: ARTICLE
CERTAIN UNCERTAINTY:
APPELLATE REVIEW AND THE
SENTENCING GUIDELINES
STEVEN E. ZIPPERSTEIN*
I. INTRODUCTION
Before November 1, 1987, federal appellate courts played virtually
no role in the criminal sentencing process.' The federal appellate courts
* Assistant U.S. Attorney, Los Angeles; Special Counsel to the Assistant Attorney General,
Criminal Division, U.S. Department of Justice, Washington, D.C. B.A. 1979, University of Califor-
nia (Los Angeles); J.D. 1983, University of California (Davis). The author acknowledges the valua-
ble assistance of Roger Haines' Federal Sentencing and Forfeiture Guide in locating appellate
decisions under the sentencing guidelines. The views expressed herein are solely the author's and do
not necessarily reflect those of the U.S. Department of Justice or the U.S. Attorney's Office for the
Central District of California.
1. Under the preguidelines system, federal criminal sentences within statutory limits were
generally not subject to appellate review. See  eg., Dorszynski v. United States, 418 U.S. 424 (1974)
(holding that a sentence within statutory limits is not reviewable absent constitutional concerns);
United States v. Tucker, 404 U.S. 443, 446-47 (1972) (same); United States v. Yarbrough, 852 F.2d
1522, 1545 (9th Cir.), cert denied, 488 U.S. 866 (1988) (same). See generally ARTHUR W. CAMp-
BELL, LAW OF SENTENCING  16:4, at 423-25 (1991) (advocating appellate review of criminal
sentences); Daniel R. Coburn, Disparity in Sentences and Appellate Review of Sentencing, 25
RUTOERS L. REV. 207, 214-25 (1971) (advocating appellate review of criminal sentences); William
W. Wilkins, Jr., Sentencing Reform and Appellate Review, 46 WASH. & LEE L. REV. 429, 430-31
(1989) (examining the role of the appellate courts under the new and the old rules). The only excep-
tions to this rule were (1) if the sentencing judge had a rigid policy of refusing to exercise any
discretion and always imposed the maximum sentence for a particular offense or (2) if the judge
relied solely on an item of information not disclosed to the defendant. United States v. Branco, 798
F.2d 1302, 1305-06 (9th Cir. 1986).
In contrast to the federal rule of nonreviewability, several states have provided for appellate
sentencing review for a number of years. See, eg., IND. CONsT. art. VII,  4; ALASKA STAT.
 12.55.120(a) (1992); ARIz. REV. STAT. ANN.  13-4037(A) (1989); CAL. PENAL CODE  1260
(%Vest 1982); COLO. REV. STAT.  18-1-409(1) (1986); CONN. GEN. STAT.  51-195 (1985); GA.
CODE ANN.  17-10-6(a) (Michie 1990); HAw. REV. STAT.  641-16 (1985); ILL. REV. STAT. ch. 38,
para. 1005-5-4.1 (1982); IOWA CODE  814.6(1)(a) (1979); MD. CRim. LAW CODE ANN.  645JA
(1992); MASS. GEN. L. ch. 278,  28A-28D (1981); MINN. STAT.  244.11 (1992); 42 PA. CONS.
STAT.  1386(c) (1983); TENN. CODE ANN.  40-35-401 (1990). For a thorough discussion of state
appellate sentencing review, see Daniel E. Wathen, Disparity and the Need for Sentencing Guidelines

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