Greenlaw v. United States--summary of June 23, 2008 Decision

Sometimes US Supreme Court decisions leave us with strange bedfellows. Such is the case here, where by a 7-2 margin (opinion by Ginsburg; dissent by Alito and Stevens, with Breyer concurring in the judgment but disagreeing with most of the decision), the Court reversed the 8th Circuit and concluded that an appellate court may not on its own (sua sponte) increase the sentence of a criminal defendant when the Government has not sought that increase on appeal or cross-appeal. Key to the Court's decision was what it called the principle of "party presentation," i.e., the parties frame the issues for decision and the courts generally serve as neutral arbiters of matters the parties present. Let's review some of the facts of the case, as well as the reasoning by the majority.

A Few Facts of Greenlaw's Case*

[*Further factual material is here.]

"Petitioner Greenlaw was convicted of seven drug and firearms charges and was sentenced to imprisonment for 442 months. In calculating this sentence, the District Court made an error. Overlooking this Court's controlling decision in Deal v. United States, 508 U.S. 129, 132-137, 113 S.Ct. 1993, 124 L.Ed.2d 44, interpreting 18 U.S.C. § 924(c)(1)(C)(i), and over the Government's objection, the District Court imposed a 10-year sentence on a count that carried a 25-year mandatory minimum term. Greenlaw appealed urging, inter alia, that the appropriate sentence for all his convictions was 15 years. The Government neither appealed nor cross-appealed. The Eighth Circuit found no merit in any of Greenlaw's arguments, but went on to consider whether his sentence was too low. The court acknowledged that the Government, while it had objected to the trial court's error at sentencing, had elected not to seek alteration of Greenlaw's sentence on appeal. Nonetheless, relying on the “plain-error rule” stated in Federal Rule of Criminal Procedure 52(b), the Court of Appeals ordered the District Court to enlarge Greenlaw's sentence by 15 years, yielding a total prison term of 662 months."

As mentioned, the Court put a lot of weight on the party presentation doctrine:

"In both civil and criminal cases, in the first instance and on appeal, courts follow the principle of party presentation, i.e., the parties frame the issues for decision and the courts generally serve as neutral arbiters of matters the parties present. To the extent courts have approved departures from the party presentation principle in criminal cases, the justification has usually been to protect a pro se litigant's rights. See Castro v. United States, 540 U.S. 375, 381-383, 124 S.Ct. 786, 157 L.Ed.2d 778. The cross-appeal rule, pivotal in this case, is both informed by, and illustrative of, the party presentation principle. Under that rule, it takes a cross-appeal to justify a remedy in favor of an appellee. See McDonough v. Dannery, 3 Dall. 188, 1 L.Ed. 563. This Court has called the rule “inveterate and certain,” Morley Constr. Co. v. Maryland Casualty Co., 300 U.S. 185, 191, 57 S.Ct. 325, 81 L.Ed. 593, and has in no case ordered an exception to it, El Paso Natural Gas Co. v. Neztsosie, 526 U.S. 473, 480, 119 S.Ct. 1430, 143 L.Ed.2d 635. No exception is warranted here. Congress has specified that when a United States Attorney files a notice of appeal with respect to a criminal sentence, “[t]he Government may not further prosecute [the] appeal without the personal approval of the Attorney General, the Solicitor General, or a deputy solicitor general designated by the Solicitor General.” 18 U.S.C. § 3742(b). This provision gives the top representatives of the United States in litigation the prerogative to seek or forgo appellate correction of sentencing errors, however plain they may be."

The Court thus hung its hat on the "cross-appeal" rule (really the same as what I called the "party presentation" rule above)--that in order to justify an enhanced remedy, that remedy must be sought on cross appeal. Yet, there is a countervailing "rule," which the 8th Circuit relied on, called the "plain-error" rule.

"The Eighth Circuit held that the plain-error rule, Fed. Rule Crim. Proc. 52(b), authorized it to order the sentence enhancement sua sponte. Nothing in the text or history of Rule 52(b), or in this Court's decisions, suggests that the plain-error rule was meant to override the cross-appeal requirement. In every case in which correction of a plain error would result in modifying a judgment to the advantage of a party who did not seek this Court's review, the Court has invoked the cross-appeal rule to bar the correction. See, e.g., Chittenden v. Brewster, 2 Wall. 191, 17 L.Ed. 839; Strunk v. United States, 412 U.S. 434, 93 S.Ct. 2260, 37 L.Ed.2d 56. Even if it would be proper for an appeals court to initiate plain-error review in some cases, sentencing errors that the Government has refrained from pursuing would not fit the bill. In § 3742(b), Congress assigned to leading Department of Justice officers responsibility for determining when Government pursuit of a sentencing appeal is in order. Rule 52(b) does not invite appellate court interference with the assessment of those officers."

Thus, cross-appeal trumps plain-error in this case. I don't know if that means that this rule only applies to criminal law matters or would also have application in the civil arena--we do know, however, that it applies, at least, in the criminal law.

An amicus curiae, invited by the Court to brief and argue the case in support of the Court of Appeals judgment, made the novel argument that 18 USC sec. 3742, which governs appellate review of criminal sentences, overrides the cross-appeal rule for sentences "imposed in violation of law," sec. 3742(e). The Court, however, found the argument unpersuasive because the cross-appeal rule had been solidly grounded in appellate practice at the time of sec. 3742's enactment, and sec. 3742 spoke nowhere about vitiating or invalidating that rule. Hence, Mr. Greenlaw gets the privilege of serving the lesser sentence---37 years.

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