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Tuesday, June 24, 2008
Greenlaw filed a direct appeal of his sentence; the government did not appeal the district court’s failure to make two sentences under 18 U.S.C. § 924(c) – a 5-year sentence and a 25-year sentence – consecutive to each other and to other counts. The appellate court nevertheless remanded for imposition of the enhanced sentence, finding that the effect of the error was not "speculative." The Supreme Court reversed, in a 7-2 (actually, 6¾ - 2¼) decision written by Justice Ginsburg. The Court held that, absent a government appeal or cross-appeal, a court of appeals does not have the power to sua sponte raise a defendant’s sentence, even if it is to correct a plain error. Writing for the majority, Justice Ginsburg relied on "that unwritten but long-standing rule" that "an appellate court may not alter a judgment to benefit a nonappealing party," as well as the express limitations on government appeals in 18 U.S.C. § 3742(b). The majority opinion also rejected the arguments that either Fed. R. Crim. P. 52(b)’s plain error rule, 28 U.S.C. § 2806, or 18 U.S.C. § 3742 confer authority to correct a legal error absent a cross-appeal, particularly for "sentencing errors that the Government refrained from pursuing," and noted that the strict time limits on notices of appeal and cross-appeal would be undermined if an appeals court could modify the judgment in favor of a party who had filed no notice of appeal. The majority opinion recognizes two important protections for defendants who seek to appeal their sentences. First, it makes clear that its holding does not modify standard practice in "sentencing package cases," meaning cases involving multiple counts and a successful appeal of some but not all of the convictions. According to the Court, an appellate court remains free to vacate the entire sentence, and a district court remains free to impose the same or a higher sentence on the remaining counts on remand so long as the new sentence is not longer than the original sentence taken in the aggregate. This provides a crucial protection because, as the Court notes, although such a defendant "ultimately may gain nothing from his limited success on appeal, . . . he will also lose nothing, as he will serve no more time than the trial court originally ordered." Second, the majority rejects the argument that its holding will produce anomalous results by permitting the district court on remand to correct the same legal error that the court of appeals was powerless to correct: "The cross-appeal rule, we of course agree, does not confine the trial court. But default and forfeiture doctrines do. It would therefore 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 because of the cross-appeal rule." Justice Alito dissented, joined by Justice Stevens, while Justice Breyer concurred only in part IV of the majority opinion (and the result), but joined Justice Alito’s dissent to the remainder of the decision.