Appeals Court May Not Increase Federal Sentence Unless Government Appeals
Greenlaw v. United States
An appeals court may not order an increase in a defendant’s sentence where the government did not appeal the sentence.
Greenlaw v. United States,128 S. Ct. 2559
Decided: June 23 2008 Supreme Court of the United States
Issue: Whether a federal appellate court has the authority to increase a defendant’s sentence in the absence of a government request to do so.
Holding: In the absence of a government appeal or cross-appeal, the sentence a defendant receives ought not to be increased by the Court of Appeals.
Facts: In the District Court for the District of Minnesota, Petitioner Greenlaw had been convicted of seven drug and firearms charges and was sentenced to 442 months imprisonment. He appealed urging inter alia that his sentence was unreasonably long. The Court of Appeals rejected his arguments and went one step further: determining that an error had been made by the district judge in only imposing a 10-year sentence on a count that carried a 25-year mandatory minimum. This determination was made on the Court’s own volition without invitation from the government who, whilst pointing out that the original sentence was 15 years too short to counter submissions by Greenlaw that it was unreasonably long, had merely argued that the original sentence ought to be affirmed. The Court of Appeals held, on the basis that there had been a “plain error” on the part of the District Judge, that it had discretion to raise and correct the sentence on its own initiative and Greenlaw’s sentence was therefore increased to 622 months. The Eighth Circuit denied rehearing. Greenlaw sought clarification from the U.S. Supreme Court who decided on a 7-2 basis that the District Court could not be ordered to increase Greenlaw’s sentence without a government request to do so.
Analysis: In the lead opinion, Ginsburg noted that it was a key feature of the adversarial system that it was the parties who make submissions and the courts play the role of “neutral arbiter”. There exists a “cross-appeal rule” described as “unwritten but longstanding” which deems that an appellate court may not alter a judgment to benefit a non-appealing party. The Supreme Court saw nothing in the present case that would give it reason to diverge from this rule.
The Eighth Circuit had held that the “plain-error” rule authorized it to order the sentence enhancement on its own volition but the Supreme Court took the view that there was nothing in this rule, (Fed.Rule Crim.Proc. 52(b)) or in the case law concerning it, that suggested that it overruled the “cross-appeal” principle.
There would also be practical implications if the cross-appeal principle were to be undermined. There are firm time limits in place for launching appeals and cross appeals. They are there to provide all parties with fair warning and finality. If a court were able to modify a judgment in favor of a party who had not filed for an appeal, this would seriously undermine the whole deadline-based system. A defendant would have to be very wary indeed about appealing if there was the possibility of a sentence increase without the defendant being put on notice of that possibility in the form of an appeal by the government.
The Supreme Court was careful to point out that its ruling on this issue should not interfere with current practice in ‘sentencing package’ appeal cases. These consist of multi-count indictments and a successful challenge on some but not all of the counts of conviction. A court is still entitled to impose a sentence on some counts longer than the original sentences for those particular counts, so long as the new aggregate sentence is no longer than the original aggregate sentence.