More on Yesterday’s Decision in Greenlaw v. US
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 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 . . . .