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.
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.
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.
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.
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