Oral argument: April 15, 2008
Appealed from: United States Court of Appeals, Eighth Circuit (March 23, 2007)
SEPARATION OF POWERS, DUE PROCESS, MANDATORY SENTENCING GUIDELINES, SENTENCE APPEALS
Michael Greenlaw was a member of the "Family Mob" gang which sold crack cocaine on the south side of Minneapolis. Police arrested Greenlaw after he and another Family Mob member used dynamite to destroy a portion of a rival gang member's home. Greenlaw was charged and convicted by a jury of various drug and conspiracy crimes and two firearm-related offenses: carrying a firearm in relation to a drug trafficking crime and carrying a firearm during a crime of violence. The Government asserted that the second firearm charge constituted a "second or subsequent offense" under 18 U.S.C. § 924(c), and therefore required the court to impose a consecutive 25 year incarceration sentence to any other sentence. The trial court rejected the Government's assertion and sentenced Greenlaw to 442 months in prison, 120 of which (10 years) were imposed as a result of the second weapons charge. The Government did not exercise its right to appeal the sentence, nor did it cross-appeal the sentence when Greenlaw appealed it to the Eighth Circuit. Despite the absence of an argument by the Government for an increase, the Eighth Circuit decided to remand the case to the lower court with an order to increase Greenlaw's sentence by 15 years. Following denial of a petition for a rehearing, Greenlaw filed for certiorari with the Supreme Court challenging the Eighth Circuit's sua sponte increase in his incarceration sentence. The Supreme Court's decision in this case will reflect its view of the appropriate balance between the interest of the courts in consistently interpreting and applying sentencing statutes, and defendants' right to appeal without subjecting themselves to a sentence increase.
In 1937, this Court described as "inveterate and certain," the principle that an appellee "may not, in the absence of a cross-appeal ... 'attack the decree with a view either to enlarging his own rights there under or lessening the rights of his adversary." Morley Constr. Co. v. Maryland Cas. Co., 300 U.S. 185, 191 (1937) (citation omitted). In light of this principle, numerous courts have held that a court of appeals may not order an increase in a criminal defendant's sentence in the absence of an appeal or cross-appeal by the Government. The Eighth and Tenth Circuits, however, have held that courts of appeals may sua sponte order increases in a defendant's sentence when the district court has failed to impose a statutory mandatory minimum sentence, even if the Government has not appealed or cross-appealed the sentence. The question presented is: Whether a federal court of appeals may increase a criminal defendant's sentence sua sponte and in the absence of a cross-appeal by the Government.
Can a federal appeals court judge can decide to increase a criminal defendant's sentence without being asked to do so by the Government?
Michael Greenlaw was a member of a gang named the "Family Mob" that sold crack cocaine on the south side of Minneapolis. Family Mob members worked together to sell two to three kilograms of crack cocaine per week. The gang members kept guns at each others' houses in case they were needed to intimidate non-gang members and keep others from encroaching on the Family Mob's "territory."U.S. v. Carter, 481 F.3d 601, 604-605 (8th Cir. 2007).
In October 1998, Robert Lewis, a member of the rival gang "Bogus Boys," shot and killed a Family Mob member. Greenlaw and another gang member responded by setting off explosives in Lewis's home. Several Family Mob members were arrested after the incident. Police recovered from the Mob 240 grams of crack cocaine; almost two kilograms of cocaine; and numerous firearms including various handguns, an AR-15 rifle, a "ball and cap revolver," and a .20 gauge sawed-off shotgun. Carter, 481 F.3d at 605. Eight defendants were charged and six of them pled guilty. Greenlaw insisted on a jury trial. After a two-week trial, Greenlaw was found guilty of conspiracy to distribute in excess of fifty grams of crack cocaine, conspiracy to possess firearms during and in relation to a drug trafficking crime, carrying a firearm in relation to a drug trafficking crime, conspiracy to assault with a dangerous weapon, two counts of assault with a dangerous weapon, and carrying a firearm during a crime of violence. Brief for Petitioner at 2-3.
Greenlaw was sentenced to 262 months for the conspiracy and drug convictions. The Government recommended that the court sentence petitioner to 30 years total for the firearms charges - the minimum mandatory sentence of five years for the first offense, and an additional 25 years for the second count. The Government argued that the second firearm-related count, carrying a firearm during a crime of violence, constituted a "second or subsequent conviction" under 18 U.S.C. § 924(c)(1)(C). This statute requires a defendant to be "sentenced to a term of imprisonment of not less than 25 years" for a second firearm conviction. The trial court rejected that argument. Instead, the court sentenced Greenlaw to five years for the first charge and ten years for the second to be served consecutively with the 262 month sentence for drugs and conspiracy. In total, Greenlaw was sentenced to 442 months in prison. Brief for Petitioner at 3. Greenlaw appealed his sentence and conviction to the Eighth Circuit Court of Appeals. The Government opted not to appeal or cross-appeal the sentence. In response to Greenlaw's challenge, the Government did assert that the trial court misapplied 18 U.S.C. § 924(c) by failing to sentence Greenlaw to 25 years for the second firearm conviction. But the Government also stated that the "district court's sentence was not unreasonable." Id. at 4.
The Eighth Circuit rejected all of Greenlaw's objections. The court then vacated the sentence sua sponte and remanded for a 15-year increase in Greenlaw's sentence due to an error in applying section 924(c). Brief for Petitioner at 4-5. The court concluded that misapplication of sentencing guidelines "seriously affects substantial rights and fairness, integrity, and public reputation of judicial proceedings." Id. at 5. The court cited Federal Rule of Criminal Procedure 52(b) as giving it the authority to change the sentence. Brief for Petitioner at 5. This rule permits appellate courts to correct plain errors, even if they are not raised by the parties. See Fed. R. Crim. P. 52(b).
Following denial of a petition for a rehearing en banc, Greenlaw filed for certiorari with the Supreme Court on September 7, 2007, challenging the sua sponte increase in sentence by the appeals court in absence of a Government cross-appeal. Brief for Petitioner at 5-6. Certiorari was granted on January 4, 2008. Greenlaw v. United States, Docket No. 07-330.
The instant case presents the extremely unusual situation where the 'opposing' parties are in explicit agreement on the very issue presented to the Supreme Court. Both Greenlaw and the Government argue that the Eighth Circuit Court of Appeals overstepped its power when it sua sponte increased the sentence of Greenlaw, a criminal defendant. Greenlaw argues that the court of appeals did not have jurisdiction to decide to increase the sentence because the only issue on appeal before the court was whether or not to decrease Greenlaw's incarceration sentence. Brief for Petitioner at 20-23. The court would have had jurisdiction to decide to increase the sentence, Greenlaw contends, if the Government filed a cross-appeal asking for an increase. Id. The Government argues that the Executive Branch should have exclusive discretion to prosecute sentencing appeals, and the court should remain a neutral arbiter of claims brought by the parties. Brief for the United States at 42.
To develop an appreciation for the implications of the Court's decision in this case, it is essential to understand the philosophical and practical considerations behind sua sponte action. Sua sponte is a Latin term used when a court decides an issue that the parties did not ask the court to decide. Many judges act sua sponte to transfer a case to another judge due to a conflict of interest or to dismiss a case for lack of subject matter jurisdiction.
Sua sponte action plays a limited role in an adversarial system because the parties are expected to present all relevant issues to the court. The court is expected to act as a neutral third-party fact-finder. The role of American courts as neutral arbiters derives from the system's roots in English courts of law, but sua sponte action is a byproduct of English courts of equity. Barry Miller, Sua Sponte Appellate Rulings: When Courts Deprive Litigants of an Opportunity to be Heard, 39 San Diego L. Rev. 1253 (Fall 2002). Under the English law system, the appellate courts reviewed the lower court proceedings for legal errors, but were not permitted to address any issues not raised by the parties. Id. at 1263. In contrast, the English equity courts could litigate any issue - whether of law or fact - in the pursuit of justice. Id. With the merging of the English law and equity traditions in U.S. federal courts came different views on the proper role of sua sponte action in this adversarial system.
The Supreme Court discussed sua sponte action in Singleton v. Wulff, stating, "a federal appellate court does not consider an issue not passed upon below." See 428 U.S. 106 (1976). Numerous Supreme Court justices have also weighed in on the appropriate role of federal courts. Supreme Court Justice John Paul Stevens in Patterson v. McLean Credit Union, stated "the adversary process functions most effectively when we rely on the initiative of lawyers, rather than the activism of judges, to fashion the questions for review." See 485 U.S. 617, 623 (1988). Justice Antonin Scalia wrote that the "premise of our adversarial system is that appellate courts do not sit as self-directed boards of legal inquiry and research, but essentially as arbiters of legal questions presented and argued by the parties before them." Carducci v. Regan, 714 F.2d 171, 177 (D.C. Cir. 1983).
Many judges believe that although sua sponte action should be exercised with great caution, it is necessary in some cases to advance the dual interests of judicial economy and justice. Justice Stevens said in Gilmer v. Interstate/Johnson Lane Corp. that the Court should consider an issue waived by the parties if the issue can be considered "'fairly subsumed' by the actual questions presented." See 500 U.S. 20, 36-37 (1991). The Court in Kolstad v. Am. Dental Ass'n decided issues waived by the parties in the lower court because the Court viewed the issues as essential to the case. 527 U.S. 526, 540 (1999).
The National Association of Criminal Defense Lawyers ("NACDL") argue that increasing a sentence sua sponte violates a defendant's expectations of finality reflected in the Double Jeopardy Clause by subjecting the defendant to unnecessary anxiety. Brief of the NACDL as Amicus Curiae in Support of Petitioner at 15. On the other hand, if the Eighth Circuit actually erred in calculating Greenwell's sentence, then correcting the error would uphold congressional intent and the integrity of the federal sentencing guidelines. In 1984, Congress created the United States Sentencing Commission to develop sentencing guidelines for federal courts. United States Sentencing Commission, Guidelines Manual, §3E1.1 (Nov. 2007). The guidelines were developed to create uniformity in sentences across different federal circuits, and further the purposes of criminal punishment: deterrence, rehabilitation, incapacitation of the offender, and justice. Id. The Supreme Court has the opportunity to weigh in on whether sua sponte action by the federal courtsis necessary and appropriate to further uniformity of criminal sentences, or if sua sponte action violates defendants' rights.
Section 18 of the United States Code, section 924(c)(1) establishes minimum mandatory sentences for persons who "during and in relation to any crime of violence or drug trafficking crime . . . uses or carries a firearm." 18 U.S.C. § 924(c)(1)(A). When a firearm is present during the commission of a crime but not brandished or discharged, the statute requires a minimum term of imprisonment of five years. Id. Further, defendants facing a "second or subsequent conviction" under the statute must be sentenced to imprisonment for no less than 25 years. 18 U.S.C. § 924(c)(1)(C). The statute does not define "second or subsequent" which has resulted in different statutory interpretations.
In the present case, the defendant, Greenlaw, was convicted at the same trial of two firearms offenses. See U.S. v. Carter, 481 F.3d 601, 605 (8th Cir. 2007). The district court in this case decided that the second firearms charge was not a "second or subsequent conviction" under the statute as the government contended because Greenlaw was not "convicted" until the entry of judgment. See id. at 608. The government did not choose to appeal or cross-appeal the resulting sentence, which included ten years for the second firearm charge. Id. Nevertheless, the Eighth Circuit sua sponte considered whether Greenlaw's sentence should be increased. Id. It declared that conviction precedes judgment so the second charge constituted a second conviction under the statute, requiring Greenlaw's total sentence to include a consecutive 25 year incarceration sentence in addition to the other sentences. Id. Greenlaw appealed, challenging the appellate court's authority to increase his sentence absent an appeal from the government. Greenlaw v. United States, Docket No. 07-330.
Jurisdiction in the Absence of a Cross-Appeal
In an unusual alignment of theoretically opposing parties, both Greenlaw and the Government agree that section 3742 of Title 18 limits appellate court jurisdiction to the sentencing errors enumerated in the statute and prohibits courts from increasing a defendant's sentence in absence of an appeal by the government. Brief for the United States at 8; Brief for Petitioner at 24. The Eighth Circuit's representatives argue that a plain reading of section 3742 required the Eighth Circuit to remand Greenlaw's sentence because it was illegally low. Brief of Court Appointed Amicus Curiae in Support of the Judgment Below at 11.
Section 3742 statutorily provides appellate jurisdiction for review of otherwise final sentences in specific, enumerated circumstances. Brief for the United States at 16. Section 3742(b) defines the types of sentencing errors that permit the government to appeal. See 18 U.S.C. § 3742(b). Notably, the statute also prohibits the government from appealing "without the personal approval of the Attorney General, the Solicitor General, or a deputy solicitor general designated by the Solicitor General." See 18 U.S.C. § 3742(b).
Citing a Senate report, Greenlaw argues that Congress expressly rejected the proposal that federal courts of appeals be authorized to correct overly lenient sentences when the defendant appeals the sentence. Brief for Petitioner at 10. Instead, Greenlaw contends, Congress gave courts of appeals the authority to an increase a sentence only upon an appeal by the government. Id. The Government argues that the absence of an appeal by the government under section 3742 effectively deprives the court of appeals of the authority to review claims which are permitted only under section 3742(b), the provision authorizing governmental sentencing appeals. Brief for the United States at 15. The Eighth Circuit's representatives respond that because Congress chose not to explicitly bar courts of appeals from increasing a defendant's sentence in the absence of a government appeal, Congress mandated courts to evaluate sentences for legality, and remand illegal sentences regardless of the moving party. Brief of Eighth Circuit Representatives at 12-13.
The Government also argues that although circuit courts have appellate jurisdiction over district court decisions and final orders under 28 U.S.C. § 1291, the Court in United States v. Sanges, 144 U.S. 310, 323 (1892), construed this provision to exclude appeals by the government in criminal cases. Brief for the United States at 13. Further, the Government relies on Carroll v. United States, 354 U.S. 394, 400 (1957), to support the assertion that governmental appeals of criminal cases are generally disfavored. Brief for the United States at 13-14. In Carroll, the Court denied the government's appeal of the district court's decision to grant motions to suppress evidence in a case involving lottery law violators. Carroll, 354 U.S. at 407.The Court reasoned that the appeal should have been dismissed because "appeals by the Government in criminal cases are something unusual, exceptional, not favored" and the government in this case was not entitled to an appeal. Carroll, 354 U.S. at 407; Brief for the United States at 13-14.
Greenlaw also relies on Torres v. Oakland Scavenger Co., 487 U.S. 312 (1988), to support the contention that if a party fails to appeal, the court lacks jurisdiction to reach the merits of its claims. Id. at 13. In Torres, the court dismissed a sixteen plaintiff employment discrimination suit for failure to state a claim. Id. On appeal, the lawyer omitted the name of Jose Torres, but the error went unnoticed and the plaintiffs prevailed in the court of appeals. Id. On remand, the court discovered the error and dismissed Torres' claim. Id. The Court affirmed the dismissal stating that the Court of Appeals "never had jurisdiction over petitioner's appeal." Id.
The Government comes to the same conclusion as Greenlaw, but based on different reasoning. The filing of a timely cross-appeal, the Government contends, is a mandatory claim-processing rule that should be enforced. Brief for the United States at 19. The Court has a duty to strictly and rigidly enforce the time limitations set forth in the Federal Rules when the rules are properly invoked. Id. at 21. Claim-processing rules, and the cross-appeal requirement, the Government argues, are mandatory rules "meant to protect institutional interests in the orderly functioning of the judicial system." Id. at 22 (quoting El Paso Natural Gas Co. v. Neztsosie, 526 U.S. 473, 481-82 (1999).
The Eighth Circuit's representatives agree with the Government that the failure to file a timely cross-appeal does not remove a court's jurisdiction over claims which could have been raised in a cross-appeal. Brief of Eighth Circuit Representatives at 26. Rather, the Eighth Circuit Representatives contend that the cross-appeal rule is a non-jurisdictional rule that can be departed from where "countervailing considerations outweigh 'the institutional interests in fair notice and repose that the rule advances.'" Id. at 27 (quoting El Paso Natural Gas Co. v. Neztsosie, 526 U.S. 473, 480 (1999)). The district court's failure to follow section 3742, the Eighth Circuit Representatives argue, provided the Eighth Circuit with a good reason to depart from the cross-appeal rule, especially in light of the fact that the Government preserved an objection in the Eighth Circuit to the district court's sentencing of Greenlaw.
Both Greenlaw and the Government contend that no sound basis exists to permit an exception in the instant case to the requirement of a cross-appeal. Brief for Petitioner at 14; Brief for the United States at 23. Both parties contend that the Government's failure to cross-appeal did not constitute a "plain error" which would warrant correction under the "plain error" standard in Federal Rule of Criminal Procedure 52(b). Brief for Petitioner at 14;Brief for the United States at 23. Rule 52(b) permits correction of errors that affect "substantial rights." Fed. R. Crim. P. 52(b). The Eighth Circuit concluded that the lower court's failure to impose a statutorily mandated sentence constituted an error which "seriously affect[ed] substantial rights and the fairness, integrity, and public reputation of judicial proceedings," and therefore, gave the court the right to correct the error. Carter, 481 F.3d at 608. Greenlaw argues that "substantial rights" refers to rights enjoyed by citizens, not the government, so the rule does not permit correction of errors that exclusively affect the government. Brief for Petitioner at 17. The Government suggests that the court should function as a neutral adjudicator of arguments presented by the parties, and a departure from this adversary model should be tolerated only in very limited circumstances, such as when the rights of a pro se litigant are in jeopardy. Brief for the United States at 23.
The NACDL argues that the right to due process and the separation of powers principle prohibit appellate courts from increasing criminal sentences sua sponte. Brief of the NACDL as Amicus Curiae in Support of Petitioner at 2. NACDL argues that prosecutorial decisions related to sentencing, like the decision of whether to bring a criminal case, are exclusively reserved to the Executive Branch, and any interference with the decisions is beyond the scope of power of an Article III judge. Id. at 8. The Government agrees, stating that Congress, by enacting sectionn 3742(b), gave discretion over sentencing errors exclusively to the Executive Branch. Brief for the United States at 24. Further, the Government argues, prosecutorial decisions involve balancing a number of factors and the decision of whether or not to appeal may reflect the best interests of the Government. Id. at 25. The Government may opt not to appeal or cross-appeal due to scarce resources, uncertainty of result, or any number of other reasons. Id. Even if the Court decides that Rule 52(b) accords "substantial rights" to the government, and the failure to give those rights affects fairness, integrity and public reputation of judicial proceedings, the Government argues that it is fully capable of determining whether or not to file an appeal. Id. at 26-27.
NACDL contends that due process concerns should constrain an appellate court's power to increase a sentence sua sponte. Brief of the NACDL as Amicus Curiae in Support of Petitioner at 12.An increase in sentence sua sponte, NACDL argues, deprives a defendant of fair notice and "imposes an unjustifiable burden" on the right to appeal. Id. at 13-14. Further, NACDL contends that a defendant is robbed of the expectation of finality implicated by the Double Jeopardy Clause if the time to appeal has expired. Id. at 15.
This case addresses an important question about the authority of federal courts to sua sponte increase defendant's incarceration sentences. The answer will reveal the current Court's views on sua sponte action and prisoners' rights to appeal. The Court will weigh the competing goals of federal sentencing uniformity and a defendant's right to appeal without being subject to an arbitrary sentence increase. Either way, this case will greatly impact prisoners' appeals.
Prepared by: Debra A. Faulkner
Edited by: Cecelia Sander Cannon