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 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.
Questions as Framed for the Court by the Parties
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.
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."
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. 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.
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 . 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. 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."
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). The court concluded that misapplication of sentencing guidelines "seriously affects substantial rights and fairness, integrity, and public reputation of judicial proceedings." . The court cited Federal Rule of Criminal Procedure 52(b) as giving it the authority to change the sentence. This rule permits appellate courts to correct plain errors, even if they are not raised by the parties.
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. Certiorari was granted on January 4, 2008.
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. . 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. 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. .
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. . 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. . In contrast, the English equity courts could litigate any issue - whether of law or fact - in the pursuit of justice. 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." 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." 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." .
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." 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.
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. 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. . 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. 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.
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.Written by:
Debra A. Faulkner
Cecelia Sander Cannon