Greenlaw v. United States

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Authorship: This page is maintained by Stanford Law student Scott Coyle.

Contents

[edit] Briefs and Documents

Docket: 07-330

Issue: Whether a federal circuit court may sua sponte increase a defendant’s sentence in the absence of a cross-appeal by the government.

Argument Transcript

Merits briefs

Amicus briefs

Certiorari filings

[edit] Pre-Argument Articles

[edit] Argument Preview

Can a federal court of appeals increase a criminal defendant’s sentence sua sponte, in the absence of an appeal or cross-appeal by the Government? Although most federal courts of appeals have found that they lack the power to do so, the Eighth Circuit did just that in Greenlaw v. United States, a case set for argument before the Supreme Court on April 15, 2008.

[edit] Background

Petitioner Michael Greenlaw, along with seven others, was arrested and accused of being a member of a street gang that sold crack cocaine on the south side of Minneapolis. After a two-week jury trial, Greenlaw was convicted on several drug and conspiracy charges, as well as two firearms charges: one for carrying a firearm in relation to a drug trafficking crime, the other for carrying a firearm during a crime of violence. The trial court sentenced him to 262 months on the drug and conspiracy counts, 60 months for the first gun charge (the mandatory minimum), and 120 months for the second gun charge, for a total of 442 months.

The Government had requested a sentence 15 years longer than the sentence imposed by the trial court, arguing that the second gun charge constituted a “second or subsequent conviction” within the meaning of 18 U.S.C. § 924(c)(1)(C) and was thus subject to a 25-year (or 300-month) mandatory minimum. The trial court rejected this request, finding that the second gun charge did not qualify as a second or subsequent conviction “because Greenlaw was only ‘convicted’ at the entry of judgment of conviction.” This finding contravened the Supreme Court’s decision in Deal v. United States, which held that multiple § 924(c) offenses charged in the same indictment may constitute “second or subsequent” convictions. The Government, however, failed to bring this case to the court’s attention at the sentencing hearing.

Greenlaw himself appealed both his conviction and sentence, arguing inter alia that the trial court miscalculated his criminal history and that a 442-month sentence was plainly unreasonable. The Government declined to cross-appeal, but it argued in its appellate brief that the 10-year sentence imposed for the second gun charge demonstrated that Greenlaw’s sentence was not unreasonable. After rejecting each of the grounds for relief presented by Greenlaw, the Eighth Circuit increased his sentence by 15 years sua sponte, finding that the trial court’s construction of § 924(c) was “plain error” under Federal Rule of Criminal Procedure 52(b). Greenlaw then filed a petition for rehearing and rehearing en banc, challenging the court’s authority to increase his sentence in the absence of a cross-appeal by the Government. The Eighth Circuit denied his petition on May 10, 2007, and he was subsequently resentenced by the district court to a term of 622 months.

[edit] Petition for Certiorari

Greenlaw filed a petition for certiorari, which was granted on January 4, 2008.

The cert. petition presented three issues. First, Greenlaw noted that the Eighth and Tenth Circuits had departed from the majority rule prohibiting the enlargement of a criminal sentence in the absence of an appeal or cross-appeal by the Government. The Eighth Circuit admitted as much, noting that its decision conflicted with the Seventh Circuit’s 2005 decision in United States v. Rivera, which held that a defendant’s sentence cannot be increased absent a cross-appeal by the Government. The First, Second, Third, Fourth, Sixth, and Ninth Circuits had all similarly refused to consider increasing a defendant’s sentence in the absence of a cross-appeal—a reflection of the general cross-appeal requirement that has been enforced by the Supreme Court for at least 200 years, dating back to its 1796 decision in McDonough v. Dannery.

Second, petitioner argued that his case would allow the Court to resolve lingering uncertainty as to whether the cross-appeal requirement itself is jurisdictional or merely a rule of practice. Although the Court has never recognized an exception to the cross-appeal requirement, but it has also never stated explicitly that the rule is jurisdictional. The Court had previously certified the question for argument in Zapata Industries v. W.R. Grace & Co. (2002), but the parties settled and dismissed the petition.

Third, petitioner argued that Federal Rule of Criminal Procedure 52(b) does not apply to errors forfeited by the Government. Rule 52(b) generally allows reviewing courts to correct errors affecting “substantial rights,” even when the parties themselves do not bring the errors to the court’s attention. Petitioner noted a circuit split on the question of whether Rule 52(b) can be applied to excuse Government forfeitures, arguing that the Government in this case forfeited its § 924(c) argument by failing to bring an appeal or cross-appeal.

In response to Greenlaw’s petition, the Government confessed error, agreeing with petitioner that “the court of appeals erred in sua sponte remanding the case with directions to enhance petitioner’s sentence.” The Government urged the Court to grant certiorari, vacate the decision below, and remand the case for further consideration by the Eighth Circuit. The Court, however, granted the petition and then appointed an amicus, Jay T. Jorgensen, to defend the judgment below.

[edit] Merits Briefing

In his briefs on the merits, petitioner argues that the Eighth Circuit’s sua sponte action simply cannot be squared with over two centuries of appellate practice. Petitioner notes that, as early as 1864, the Court described the rule preventing an appellate court from modifying a judgment so as to enlarge the rights of a non-appealing party or lessen the rights of an appellant in the absence of a cross-appeal as “settled” law. Even in cases of clear error, the Court has strictly enforced the cross-appeal requirement to bar relief to a non-appealing party, finding that those parts of the judgment decided in appellants’ favor are simply not before the reviewing court in the absence of a cross-appeal.

Petitioner further argues that enforcement of the cross-appeal requirement is particularly appropriate in the criminal sentencing context, given the limited nature of the Government’s right to appeal sentences. Prior to passage of the Sentencing Reform Act in 1984, Congress had not provided the Government with any general right to appeal criminal sentences. The 1984 Act (codified at 18 U.S.C. § 3742) provided only “limited” appellate review of sentences, specifying the grounds for appeal by defendants and the Government and requiring any Government appeal to be personally approved by the Attorney General or Solicitor General. Petitioner cites legislative history indicating that Congress expressly rejected a proposal to allow appellate courts to increase sentences upon a defendant’s appeal, finding that such a regime would place an “undesirable strain” on defendants’ right to seek sentencing review. Given this limited scheme of sentencing appeals, petitioner argues that allowing appellate courts to increase sentences sua sponte would be inconsistent with congressional intent.

Petitioner also argues that the cross-appeal requirement is jurisdictional, and therefore admits of no exceptions. The Court has consistently described the rule in jurisdictional terms, speaking of the “power” of a reviewing court to modify a judgment in the absence of a cross-appeal. Petitioner notes that the Court has never acknowledged an exception to the rule, further evincing its jurisdictional nature.

The Government argues that although the general cross-appeal rule is not jurisdictional, Section 3742 itself is jurisdictional. Citing Bowles and Kontrick, the Government contends that Congress creates rules that can properly be classified “jurisdictional” when it delineates, by statute, a particular class of cases subject to appellate review. Here, § 3742(b) requires the Government to file a notice of appeal, based on specified grounds, in order to vest the court of appeals with jurisdiction to correct an unduly lenient sentence. Absent such an appeal, any errors in an unduly lenient sentence fall outside of the class of cases delineated for appellate review—and are therefore also outside of the court’s jurisdiction.

Even if the cross-appeal requirement is merely a judicially created rule of practice subject to exceptions, however, both petitioner and the Government argue that no exception is warranted in this case. As the Court explained in El Paso Natural Gas v. Neztsosie (1999), it has never recognized an exception to the cross-appeal requirement, finding even obvious errors “clearly inadequate to defeat the institutional interests in fair notice and repose that the rule advances.” Petitioner and the Government argue that even non-jurisdictional claims-processing rules must be strictly enforced when timely invoked—a test met in this case, given Greenlaw’s repeated contention (in both his petition for rehearing and his petition for certiorari) that the Eighth Circuit lacked authority to increase his sentence in the absence of a cross-appeal by the Government.

Finally, petitioner argues that the Eighth Circuit erred in relying on Rule 52(b) to correct what it considered a “plain error” in his sentence. Petitioner argues that the Rule, which only allows correction of errors affecting “substantial rights,” cannot be used to grant relief to the Government, because “substantial rights” at the time of Rule 52’s passage referred exclusively to the rights of criminal defendants. Petitioner also claims that any sentencing error in this case does not “seriously affect the fairness, integrity or public reputation of judicial proceedings” as required under the Rule, since the statutory scheme established by Congress expressly contemplated—given the AG-SG approval provision and the limited grounds for appeal—that some unduly lenient sentences would be left uncorrected.

In his brief on the merits, the Court-appointed amicus argues that the plain text of § 3742 not only permits but in fact requires appellate courts to remand illegal sentences for correction. Amicus contends that once any party appeals a criminal sentence under § 3742, the reviewing court is required by statute to make all of the determinations listed in subsection (e)—i.e., the court “shall” determine whether the sentence was imposed in violation of law, resulted from an incorrect application of the sentencing guidelines, fell outside of the applicable guideline range without adequate justification, or was imposed for an offense for which there is no applicable sentencing guideline and is plainly unreasonable. Once the reviewing court makes these determinations, amicus argues that subsection (f)(1) requires the court to remand a sentence like Greenlaw’s, which was “imposed in violation of law.” Amicus thus argues that the Government’s failure to cross-appeal was irrelevant in this case, because petitioner’s appeal conferred jurisdiction on the court of appeals to review the legality of his sentence. Once the court determined that the sentence was illegal—and given Congress’s stated intent to provide appellate review of sentences in order to ensure consistency and proper application of the sentencing laws—amicus argues that the Eighth Circuit was required to remand for correction.

Although amicus agrees with petitioner that the Court need not reach the jurisdictional question, he also argues that the cross-appeal requirement is a rule of practice. Amicus contends that the cross-appeal requirement is a non-statutory, judicially created rule that may therefore be relaxed for good cause. He asserts that the Eighth Circuit had good cause to act in the absence of a Government cross-appeal in this case, given the trial court’s failure to impose a clear mandatory minimum established by Congress. He also contends that petitioner was put on notice that a § 924(c) issue lingered in his case at the sentencing hearing, thus vitiating the fairness concerns traditionally served by the cross-appeal rule.

Because the Eighth Circuit had jurisdiction over the legality of petitioner’s sentence, amicus claims that its sua sponte increase of petitioner’s sentence was also justified as an exercise of its supervisory powers under 28 U.S.C. § 2106. Amicus also argues that the trial court’s failure to impose a mandatory minimum “seriously affect[s] the fairness, integrity or public reputation of judicial proceedings,” rendering correction of this “plain error” appropriate under Rule 52(b).

In their reply briefs, both petitioner and the Government contest amicus’s interpretation of § 3742, arguing that the subsections describing the scope of review (subsection (e)) and available remedies (subsection (f)) must be read in conjunction with the earlier subsections ((a) and (b)) laying out the grounds for appeal. Petitioner and the Government argue that Congress did not intend to exempt sentencing appeals from the traditional cross-appeal requirement sub silentio, but rather legislated against the backdrop of well-established rules of appellate procedure. They therefore argue that the best reading of § 3742(e) and (f) assumes that a reviewing court must first take proper jurisdiction of an appeal under subsections (a) and (b), with sentencing review limited to the specific grounds asserted by an appealing party under those provisions. The review and relief provided under subsections (e) and (f) are thus available only to an appealing party, and were never intended to subvert over two centuries of appellate practice.


[edit] Oral Argument Recap

Arguing on behalf of petitioner Michael Greenlaw, Amy Howe began by emphasizing that for over two hundred years the Court has held, without exception, that an appellate court may not modify a judgment in favor of a party unless that party has filed a notice of appeal. Ms. Howe argued that Congress was well aware of this history when it passed the Sentencing Reform Act of 1984, and that nothing in the text, history, or structure of the Act demonstrates that Congress intended to deviate from this rule in sentencing cases.

Justice Stevens posed the first question, asking whether a district court—rather than an appellate court—could increase a defendant’s sentence on remand, following defendant’s successful appeal. Ms. Howe argued that a district court could not increase defendant’s sentence on remand because to do so would circumvent the cross-appeal requirement. When pressed for authority Ms. Howe conceded that the Court had never addressed the issue, but pointed to the Third Circuit’s decision in United States v. Harvey to establish that defendant’s initial sentence serves as an upper limit on the length of the sentence that may be imposed at resentencing. This exchange led to a series of questions from the bench regarding district court proceedings on remand, prompting Justice Scalia to refocus the argument by stating, “Who asked this question? We’re going to get a totally different case here.”

Justice Ginsburg then turned to the text of § 3742, asking whether differences in the language of subsections (f)(1) and (f)(2) require a court to remand a sentence for correction if the court finds that the sentence has been imposed in violation of law, regardless of which party filed the appeal. Ms. Howe responded that the language of (f)(1) does not specify which party appealed because such challenges can be brought by either the defendant or the Government, whereas (f)(2) addresses appeals that can only be brought by either the defendant or the Government—only defendants can challenge an upward departure, and only the Government can challenge a downward departure.

Ms. Howe then began laying out three additional reasons to reject the Amicus’s construction of the statute. First, she argued that reading subsection (f)(1) to require a reviewing court to remand a sentence that resulted from a misapplication of the sentencing guidelines would cause the statute to operate illogically, since the same court would be without power to correct an unwarranted downward departure under (f)(2) unless the Government cross-appealed. Second, Ms. Howe argued that alleged “inference” drawn from the text of § 3742 was a very “thin reed” to support such a novel construction, given that Congress was well aware of the cross-appeal rule and did not expressly create any exceptions to the rule in the statute itself.

Justice Breyer interjected to express concern about the reverse case, in which the Government appeals a sentence and, in the absence of a cross-appeal by the defendant, the court finds the sentence illegally high. Justice Breyer described it as a “tough position” to argue that the court would be without power to correct an illegally long sentence, at which point Justice Stevens intervened to note that the cross-appeal requirement is non-statutory—implying that the rule is judicially-created and therefore amenable to exceptions. Ms. Howe provided three answers to address Justice Breyer’s concerns, the last of which appeared to satisfy the Justices. She argued that a defendant who failed to appeal a plainly illegally long sentence might seek post-conviction relief under § 2255, which addresses ineffective assistance of counsel.

Justices Scalia and Ginsburg then asked a series of questions regarding the jurisdictional status of the rule. Ms. Howe argued that even if the cross-appeal requirement is a non-jurisdictional rule of practice, petitioner should prevail because he timely invoked the rule in this case.

Splitting time with petitioner, Deanne Maynard of the Solicitor General’s office began by arguing that the appellate court lacked jurisdiction to increase petitioner’s sentence in the absence of a notice of appeal by the Government under § 3742(b). Ms. Maynard was sidetracked early on by a question from Justice Alito, who asked her to account for the “sentencing package” cases, in which a district court is free to resentence a defendant on all counts once the defendant successfully challenges a sentence on one count.

Ms. Maynard painted the sentencing package cases as consistent with the cross-appeal rule, since the reviewing court vacates the original sentence at defendant’s request. She then argued that resentencing proceedings are governed by the scope of the appellate court’s mandate rather than the cross-appeal rule—a response which immediately got her into trouble with several of the Justices, who appeared uncomfortable with a rule allowing an appellate court to issue a mandate, at defendant’s request, that would likely to have the effect of increasing defendant’s sentence.

Justices Stevens and Souter, in particular, noted that the Government’s position would essentially allow the same result as in Greenlaw’s case—an appellate court could remand for resentencing and specifically note an error in the initial sentence that had benefited the defendant, essentially directing the district court to impose a longer sentence even in the absence of an appeal by the Government. Ms. Maynard was bogged down in this line of questioning for the better part of her argument, and ultimately conceded that under her interpretation, a defendant who successfully appealed “may end up in the district court worse off than when [he] began.”

Justice Ginsburg then asked why the Government failed to appeal petitioner’s sentence in this case, given the clear error in the original sentence. Ms. Maynard replied that the record was silent, but that in general the Government may elect not to appeal for any number of reasons, given that it faces over 8,000 adverse district court decisions each year. Justice Scalia described the lack of a cross-appeal as unexceptional, noting that appellate courts frequently do not correct errors in the judgment below in the absence of a cross-appeal.

Justice Stevens turned again to the jurisdictional status of the rule, noting that both parties pointed to isolated cases creating exceptions to the cross-appeal requirement. Since some courts had acknowledged exceptions to the rule without generating any “widespread problem” in the court of appeals, Justice Stevens asked whether that undermined any claim that the rule must be enforced without exception. Ms. Maynard responded that she was not aware of any case in which “this Court has reached out to find plain error on behalf of a nonpetitioning respondent or a non-appealing appellant.”

In defense of the Eighth Circuit’s judgment below, the Court-appointed Amicus, Jay T. Jorgensen, began by framing three questions for the Court. First, was § 3742 an affirmative grant of power to the courts of appeals to provide the “right answer” any time an appellant alleges that a sentence was imposed in violation of law—irrespective of which party would benefit from that answer? If it was, Mr. Jorgensen argued that the Eighth Circuit’s judgment should be affirmed. Second, if § 3742 did not provide a clear answer as to the power of appellate courts, is the cross-appeal rule a jurisdictional limit, or merely a rule of practice? If jurisdictional, Mr. Jorgensen noted that petitioner should prevail. If not, Mr. Jorgensen outlined a third question: is the cross-appeal requirement a waivable rule of practice, or a firm and inflexible rule that must be enforced if invoked?

Justice Ginsburg asked the first question, stating that her problem with Mr. Jorgensen’s position was that it would require the courts to become actively involved in identifying issues for appeal—a task normally left to the parties themselves under an adversarial system. Mr. Jorgensen responded by distinguishing charging decisions from sentencing decisions, arguing that the adversarial process comes to an end once a defendant is convicted. He also clarified that his interpretation of § 3742 was not meant to grant appellate courts “roving jurisdiction” to identify sentencing errors. Rather, he argued that the parties themselves were still responsible for bringing claims to the court—but that once such a claim was presented, § 3742 requires reviewing courts to correct sentences imposed in violation of law.

Justice Scalia then asked Mr. Jorgensen to describe why he thought the text of § 3742 required the Eight Circuit to correct the sentence in this case, pointing specifically to the anomalous results under (f)(1) and (f)(2) cited by petitioner as evidence that Congress could not have intended for the statute to mandate correction of some sentencing errors, but not others. Mr. Jorgensen first argued that the Court should not ignore the plain text of the statute in an attempt to discern legislative intent. He then explained that sentencing errors requiring correction under (f)(1) are “legal questions” that, if left uncorrected, might create bad precedent, whereas the types of errors addressed under (f)(2) are more fact-dependent, and are therefore limited to a defendant’s particular case. Justice Souter would return to this point later in the argument, describing Mr. Jorgensen’s explanation as a “good try” but noting that some of the errors falling under (f)(1)—particularly incorrect applications of the Sentencing Guidelines—are similarly fact-intensive, but would be subject to mandatory correction under Amicus’s interpretation of the statute.

Justice Scalia also took issue with the scope of appellate courts’ responsibility to review the record for errors under Mr. Jorgensen’s reading, describing it as an “extraordinary” burden to place on reviewing courts. Mr. Jorgensen agreed and moved on, explaining that he sensed the Court was likely to find that § 3742 did not provide any clear answer to the question presented. He then argued that there was no good reason to find the cross-appeal requirement jurisdictional, given the Court’s recent efforts to limit the class of jurisdictional rules to those that are expressly created by statute. The cross-appeal requirement, he noted, is non-statutory.

That conclusion led Mr. Jorgensen to the third question: whether the rule admits of exceptions. Mr. Jorgensen argued that the Court, in Langnes, granted an exception for “good cause,” and urged the Court to adopt a plain error standard for exceptions to the cross-appeal rule in sentencing appeals. The Chief Justice asked why—if the error was so plain in this case—the Government had elected not to appeal. Mr. Jorgensen responded that the Government had not explained its decision, but that he viewed it as a “blunder.” He then invoked a common criticism of the exclusionary rule, stating that the defendant should not go free “when the constable blunders.”

In her rebuttal, Ms. Howe made two quick points. First, she argued that § 3742 must be read as a whole, meaning that subsections (a) and (b) provide jurisdiction and, only then, is a court directed to make the determinations listed in (e) and (f). The latter subsections therefore could not serve as the affirmative grant of power to appellate courts that Amicus theorized. Ms. Howe also noted that Amicus’s proposed “plain error” limit to an appellate court’s responsibility to review the record was nowhere to be found in the statute itself.

Second, Ms. Howe argued that § 3742 should be viewed in historical context, and that prior to passage of the Sentencing Reform Act in 1984 the Government did not have any general right to appeal a criminal sentence. For that reason, Ms. Howe argued that the Government’s right to appeal sentences has always been interpreted narrowly—rendering an expansion of appellate review of criminal sentences even in the absence of a Government appeal particularly inappropriate.

[edit] Opinion Analysis

Amy Howe originally wrote the following post for SCOTUSblog.


Yesterday in No. 07-330, Greenlaw v. United States, the Supreme Court held that because the government had neither appealed nor cross-appealed, the Eighth Circuit erred in vacating Michael Greenlaw’s thirty-seven-year sentence and imposing a fifty-two-year sentence based on a sentencing error by the district court. [Note: Howe & Russell and Akin Gump, along with the Stanford clinic and Kassius Benson of Minneapolis, represented Mr. Greenlaw, and I argued the case on his behalf.]

The background of the case can be recounted fairly briefly (Scott Coyle has this more detailed [index.php?title=Greenlaw_v._United_States discussion] of the proceedings below, the parties’ arguments on the merits, and oral argument). In 2006, petitioner Michael Greenlaw was sentenced to thirty-seven years in prison for his role in a drug gang in Minneapolis. At sentencing, the district court erroneously rejected the federal government’s argument that Greenlaw should receive an additional fifteen years for his second conviction under 18 U.S.C. § 924(c). Greenlaw appealed his sentence as unreasonable; although the government noted in its brief that Greenlaw’s sentence was erroneously low to support its argument that Greenlaw’s sentence should be affirmed, the government did not cross-appeal. Regarding the sentencing error as one falling under the purview of Federal Rule of Criminal Procedure 52(b), the Eighth Circuit nonetheless vacated Greenlaw’s sentence and remanded the case to the district court with instructions to impose the mandatory minimum sentence of twenty-five, rather than ten, years.

Yesterday the Supreme Court – in an opinion by Justice Ginsburg – in turn vacated the Eighth Circuit’s judgment and remanded “for further proceedings consistent with [its] opinion.” The opinion answered the question presented in relatively short order: although the Court once again declined to decide whether the general rule precluding a court of appeals from enlarging a judgment in favor of a non-appealing party is jurisdictional, in its view Congress answered the question presented in the sentencing context by providing, in 18 U.S.C. § 3742, that a sentencing appeal could be prosecuted only with the approval of senior DOJ officials. The majority explained that “[i]t would severely undermine Congress’ instruction were appellate judges to ‘sally forth’ on their own motion . . . to take up errors adverse to the Government when the designated Department of Justice officials have not authorized an appeal from the sentence the trial court imposed.” Notably, although both Greenlaw and the government had argued to the Court that the cross-appeal rule applied equally to defendants – even if that might result in the defendant receiving an erroneously high sentence because he had failed to appeal – the Court declined to decide that question as well.

The opinion then raises, but rejects, several of the arguments advanced by the amicus in support of the judgment below. In the Court’s view, neither Rule 52(b) nor 28 U.S.C. § 2106 authorized the Eighth Circuit’s sua sponte increase of Greenlaw’s sentence: nothing in either the Rule or the statute overrides the cross-appeal requirement. And while the Court acknowledged that the amicus’s construction of Section 3742 was “clever and complex,” it ultimately deemed it “unpersuasive,” reasoning that “Congress was aware of the cross-appeal rule, and framed [Section] 3742 expecting that the new provision would operate in harmony with the “‘inveterate and certain’ bar to enlarging judgments in favor of an appellee who filed no cross-appeal.” Moreover, the Court emphasized, allowing an exception to the cross-appeal rule would undermine the strict time limits provided by the Federal Rules of Appellate Procedure – which, the Court noted, serve important interests in notice and finality.

At the conclusion of its opinion, the Court disposed briefly of the issue that had occupied so much of its time at oral argument: what effect, if any, the cross-appeal rule would have on sentencing cases on remand. The Court noted that Greenlaw’s case was not one of the “sentencing package” cases – that is, a case in which the defendant prevails on one or more of his issues on appeal but, on remand, receives an equally long sentence based solely on the remaining counts – because Greenlaw did not prevail on any of his issues on appeal. In any event, the Court explained, nothing in its opinion conflicts with the courts’ current practice in such cases, as the cross-appeal rule merely “stops appellate judges from adding years to a defendant’s sentence on their own initiative.” And although the Court (in a footnote) agreed with the dissent that the cross-appeal rule “does not confine the trial court,” it posited that the “default and forfeiture doctrines do,” such that “[i]t would be hard to imagine a case in which a district court, after a court of appeals vacated a criminal sentence, could properly increase the sentence based on an error the appeals court left uncorrected by the cross-appeal rule.”

Justice Breyer filed a one-paragraph opinion concurring in the judgment in which he agreed with Justice Alito that “the cross-appeal requirement is simply a rule of practice for appellate courts, rather than a limitation on their power,” but nonetheless also agreed that the Eighth Circuit in this case “abused its discretion in sua sponte increasing [Greenlaw’s] sentence.”

In an opinion joined by Justice Stevens, Justice Alito dissented. In his view, the cross-appeal rule is “a prime example of a ‘rule of practice,’ subject to exceptions, not an unqualified limit on the power of appellate courts.” In particular, he noted that although courts generally refrain from “addressing arguments that the parties have not made,” the rule is “not inflexible.” And Justice Alito deemed himself unpersuaded that “the interests at stake when a reviewing court awards a nonappealing party additional relief are qualitatively different from the interests at stake when a reviewing court raises an issue sua sponte.”

The long-term effects of the Court’s opinion are likely to be fairly narrow. The Court’s opinion makes clear that, on remand, Greenlaw’s original thirty-seven-year sentence should be reinstated. And defendants in the few circuits that had allowed such sua sponte sentence increases can now appeal without exposing themselves to the prospect of an increased sentence even in the absence of a government appeal. But beyond that, the decision itself is most likely to be memorable as part of this Term’s “novelty” category: Justices Stevens and Breyer join former federal prosecutor Justice Alito in voting to uphold the courts’ powers to sua sponte increase a criminal defendant’s sentence. Certainly not how we would have pegged it when we filed the cert. petition nearly a year ago . . .

[edit] Links and further information

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