Greenlaw v. U.S.

The authority of appellate courts to hike defendants' sentences even when the government has not asked them to do so will be decided by the Court this Term.

The Court agreed to review a case raising the issue, Greenlaw v. United States, No. 07-330, even though the Solicitor General took the notable position of agreeing with the petitioner that the court of appeals erred in vacating the sentence and remanding to the district court with instructions to add several months.

In the case, defendant Michael Greenlaw was convicted of several drug and firearms offenses. The prosecutor argued at sentencing that because the defendant had been convicted on two counts under the federal gun law, he should received mandatory consecutive sentences of five years for the first offense and twenty-five for the second. The judge gave just ten years for the second offense, stating that the mandatory minimum applied only when the second offense was the result of a separate, pre-existing indictment. That conclusion was incorrect under the 1993 Supreme Court decision Deal v. United States, 508 U.S. 129 (1993).

Greenlaw appealed his sentence to the Eighth Circuit Court of Appeals, seeking a reduction. The government did not file an appeal or cross-appeal seeking a hike based on the Deal error. Nevertheless, the appeals court noted the error and determined to correct it by vacating the sentence and remanding to the district court with instructions to apply the mandatory minimum.

Greenlaw asked the Supreme Court to review the Eighth Circuit action. He argued that longstanding high court precedent holds that a court of appeals may not order a higher criminal sentence in the absence of a government request to do so. The Eighth and Tenth Circuits have broken ranks with the majority of circuits that follow the rule, he argued, and the Supreme Court should reiterate the broad rule.

Greenlaw further argued that the Supreme Court should take the case to clarify two related issues. First, he argued, the circuit courts need guidance on whether the lack of a cross-appeal deprives the appellate court of authority as a rule of jurisdiction, or simply as a custom of practice. If a jurisdictional rule, a court could never act in the absence of a cross appeal; if a practice rule, a court could devise exceptions where exercise of jurisdiction would be appropriate.

Second, Greenlaw urged that the Court could also use the case to explain the scope of Federal Rule of Criminal Procedure 52(b). That rule allows courts to consider plain errors even when the parties do not raise them. Some circuits think the rule allows the government to raise on appeal issues forfeited at the trial level, while others do not.

The government's brief in the case conceded that the appeals court erred, and broadly endorsed the notion that reviewing courts should not tinker with criminal sentences when the government has not protested them. However, the Solicitor General urged the Court to grant certiorari, vacate and remand for further briefing of the issue to give the court of appeals an opportunity to revisit its holding.

As the Court elected to hear the case and the Solicitor General did not champion the Eighth Circuit's approach, the Court appointed attorney Jay Jorgenson of Washington, D.C. to defend the appeals court's action.

The case will likely be argued this spring.

criminal procedure, sentencing, plain error, cross-appeal, Fed. R. Crim. P. 52(b), appellate jurisdiction

Appellate courts do not have the authority to hike defendants' sentences when the government has not asked them to do so, a divided Supreme Court ruled.

The Court agreed to review a case raising the issue, Greenlaw v. United States, No. 07-330, even though the Solicitor General took the notable position of agreeing with the petitioner that the court of appeals erred in vacating the sentence and remanding to the district court with instructions to add several months.

In the case, defendant Michael Greenlaw was convicted of several drug and firearms offenses. The prosecutor argued at sentencing that because the defendant had been convicted on two counts under the federal gun law, he should receive mandatory consecutive sentences of five years for the first offense and 25 for the second. The judge gave just 10 years for the second offense, stating that the mandatory minimum applied only when the second offense was the result of a separate, pre-existing indictment. That conclusion was incorrect under the 1993 Supreme Court decision Deal v. United States, 508 U.S. 129 (1993).

Greenlaw appealed his sentence to the Eighth Circuit Court of Appeals, seeking a reduction. The government did not file an appeal or cross-appeal seeking a hike based on the Deal error. Nevertheless, the appeals court noted the error and determined to correct it by vacating the sentence and remanding to the district court with instructions to apply the mandatory minimum.

Greenlaw asked the Supreme Court to review the Eighth Circuit action. He argued that longstanding high court precedent holds that a court of appeals may not order a higher criminal sentence in the absence of a government request to do so. The Eighth and Tenth Circuits have broken ranks with the majority of circuits that follow the rule, he argued, and the Supreme Court should reiterate the broad rule.

Greenlaw further argued that the Supreme Court should take the case to clarify two related issues. First, he argued, the circuit courts need guidance on whether the lack of a cross-appeal deprives the appellate court of authority as a rule of jurisdiction, or simply as a custom of practice. If a jurisdictional rule, a court could never act in the absence of a cross appeal; if a practice rule, a court could devise exceptions where exercise of jurisdiction would be appropriate.

Second, Greenlaw urged that the Court could also use the case to explain the scope of Federal Rule of Criminal Procedure 52(b). That rule allows courts to consider plain errors even when the parties do not raise them. Some circuits think the rule allows the government to raise on appeal issues forfeited at the trial level, while others do not.

The government's brief in the case conceded that the appeals court erred, and broadly endorsed the notion that reviewing courts should not tinker with criminal sentences when the government has not protested them. However, the Solicitor General urged the Court to grant certiorari, vacate and remand for further briefing of the issue to give the court of appeals an opportunity to revisit its holding.

As the Court elected to hear the case and the Solicitor General did not champion the Eighth Circuit's approach, the Court appointed attorney Jay Jorgenson of Washington, D.C. to defend the appeals court's action.

On June 23, a 6-3 Supreme Court overturned the appeals court decision, noting that "absent a Government appeal or cross-appeal, the sentence Greenlaw received should not have been increased."

Justice Samuel A. Alito Jr., joined by Justices Stephen G. Breyer and John Paul Stevens, dissented, arguing: "Absent congressional direction to the contrary, and subject to our limited oversight as a supervisory court, we should entrust the decision to initiate error correction to the sound discretion of the courts appeals."