Arguing on behalf of petitioner Michael Greenlaw, Amy Howe began by emphasizing that for over two hundred years the Court has held, without exception, that an appellate court may not modify a judgment in favor of a party unless that party has filed a notice of appeal. Ms. Howe argued that Congress was well aware of this history when it passed the Sentencing Reform Act of 1984, and that nothing in the text, history, or structure of the Act demonstrates that Congress intended to deviate from this rule in sentencing cases.

Justice Stevens posed the first question, asking whether a district court"”rather than an appellate court"”could increase a defendant's sentence on remand, following defendant's successful appeal. Ms. Howe argued that a district court could not increase defendant's sentence on remand because to do so would circumvent the cross-appeal requirement. When pressed for authority Ms. Howe conceded that the Court had never addressed the issue, but pointed to the Third Circuit's decision in United States v. Harvey to establish that defendant's initial sentence serves as an upper limit on the length of the sentence that may be imposed at resentencing. This exchange led to a series of questions from the bench regarding district court proceedings on remand, prompting Justice Scalia to refocus the argument by stating, "Who asked this question? We're going to get a totally different case here."

Justice Ginsburg then turned to the text of § 3742, asking whether differences in the language of subsections (f)(1) and (f)(2) require a court to remand a sentence for correction if the court finds that the sentence has been imposed in violation of law, regardless of which party filed the appeal. Ms. Howe responded that the language of (f)(1) does not specify which party appealed because such challenges can be brought by either the defendant or the Government, whereas (f)(2) addresses appeals that can only be brought by either the defendant or the Government"”only defendants can challenge an upward departure, and only the Government can challenge a downward departure.

Ms. Howe then began laying out three additional reasons to reject the Amicus's construction of the statute. First, she argued that reading subsection (f)(1) to require a reviewing court to remand a sentence that resulted from a misapplication of the sentencing guidelines would cause the statute to operate illogically, since the same court would be without power to correct an unwarranted downward departure under (f)(2) unless the Government cross-appealed. Second, Ms. Howe argued that alleged "inference" drawn from the text of § 3742 was a very "thin reed" to support such a novel construction, given that Congress was well aware of the cross-appeal rule and did not expressly create any exceptions to the rule in the statute itself.

Justice Breyer interjected to express concern about the reverse case, in which the Government appeals a sentence and, in the absence of a cross-appeal by the defendant, the court finds the sentence illegally high. Justice Breyer described it as a "tough position" to argue that the court would be without power to correct an illegally long sentence, at which point Justice Stevens intervened to note that the cross-appeal requirement is non-statutory"”implying that the rule is judicially-created and therefore amenable to exceptions. Ms. Howe provided three answers to address Justice Breyer's concerns, the last of which appeared to satisfy the Justices. She argued that a defendant who failed to appeal a plainly illegally long sentence might seek post-conviction relief under § 2255, which addresses ineffective assistance of counsel.

Justices Scalia and Ginsburg then asked a series of questions regarding the jurisdictional status of the rule. Ms. Howe argued that even if the cross-appeal requirement is a non-jurisdictional rule of practice, petitioner should prevail because he timely invoked the rule in this case.

Splitting time with petitioner, Deanne Maynard of the Solicitor General's office began by arguing that the appellate court lacked jurisdiction to increase petitioner's sentence in the absence of a notice of appeal by the Government under § 3742(b). Ms. Maynard was sidetracked early on by a question from Justice Alito, who asked her to account for the "sentencing package" cases, in which a district court is free to resentence a defendant on all counts once the defendant successfully challenges a sentence on one count.

Ms. Maynard painted the sentencing package cases as consistent with the cross-appeal rule, since the reviewing court vacates the original sentence at defendant's request. She then argued that resentencing proceedings are governed by the scope of the appellate court's mandate rather than the cross-appeal rule"”a response which immediately got her into trouble with several of the Justices, who appeared uncomfortable with a rule allowing an appellate court to issue a mandate, at defendant's request, that would likely to have the effect of increasing defendant's sentence.

Justices Stevens and Souter, in particular, noted that the Government's position would essentially allow the same result as in Greenlaw's case"”an appellate court could remand for resentencing and specifically note an error in the initial sentence that had benefited the defendant, essentially directing the district court to impose a longer sentence even in the absence of an appeal by the Government. Ms. Maynard was bogged down in this line of questioning for the better part of her argument, and ultimately conceded that under her interpretation, a defendant who successfully appealed "may end up in the district court worse off than when [he] began."

Justice Ginsburg then asked why the Government failed to appeal petitioner's sentence in this case, given the clear error in the original sentence. Ms. Maynard replied that the record was silent, but that in general the Government may elect not to appeal for any number of reasons, given that it faces over 8,000 adverse district court decisions each year. Justice Scalia described the lack of a cross-appeal as unexceptional, noting that appellate courts frequently do not correct errors in the judgment below in the absence of a cross-appeal.

Justice Stevens turned again to the jurisdictional status of the rule, noting that both parties pointed to isolated cases creating exceptions to the cross-appeal requirement. Since some courts had acknowledged exceptions to the rule without generating any "widespread problem" in the court of appeals, Justice Stevens asked whether that undermined any claim that the rule must be enforced without exception. Ms. Maynard responded that she was not aware of any case in which "this Court has reached out to find plain error on behalf of a nonpetitioning respondent or a non-appealing appellant."

In defense of the Eighth Circuit's judgment below, the Court-appointed Amicus, Jay T. Jorgensen, began by framing three questions for the Court. First, was § 3742 an affirmative grant of power to the courts of appeals to provide the "right answer" any time an appellant alleges that a sentence was imposed in violation of law"”irrespective of which party would benefit from that answer? If it was, Mr. Jorgensen argued that the Eighth Circuit's judgment should be affirmed. Second, if § 3742 did not provide a clear answer as to the power of appellate courts, is the cross-appeal rule a jurisdictional limit, or merely a rule of practice? If jurisdictional, Mr. Jorgensen noted that petitioner should prevail. If not, Mr. Jorgensen outlined a third question: is the cross-appeal requirement a waivable rule of practice, or a firm and inflexible rule that must be enforced if invoked?

Justice Ginsburg asked the first question, stating that her problem with Mr. Jorgensen's position was that it would require the courts to become actively involved in identifying issues for appeal"”a task normally left to the parties themselves under an adversarial system. Mr. Jorgensen responded by distinguishing charging decisions from sentencing decisions, arguing that the adversarial process comes to an end once a defendant is convicted. He also clarified that his interpretation of § 3742 was not meant to grant appellate courts "roving jurisdiction" to identify sentencing errors. Rather, he argued that the parties themselves were still responsible for bringing claims to the court"”but that once such a claim was presented, § 3742 requires reviewing courts to correct sentences imposed in violation of law.

Justice Scalia then asked Mr. Jorgensen to describe why he thought the text of § 3742 required the Eight Circuit to correct the sentence in this case, pointing specifically to the anomalous results under (f)(1) and (f)(2) cited by petitioner as evidence that Congress could not have intended for the statute to mandate correction of some sentencing errors, but not others. Mr. Jorgensen first argued that the Court should not ignore the plain text of the statute in an attempt to discern legislative intent. He then explained that sentencing errors requiring correction under (f)(1) are "legal questions" that, if left uncorrected, might create bad precedent, whereas the types of errors addressed under (f)(2) are more fact-dependent, and are therefore limited to a defendant's particular case. Justice Souter would return to this point later in the argument, describing Mr. Jorgensen's explanation as a "good try" but noting that some of the errors falling under (f)(1)"”particularly incorrect applications of the Sentencing Guidelines"”are similarly fact-intensive, but would be subject to mandatory correction under Amicus's interpretation of the statute.

Justice Scalia also took issue with the scope of appellate courts' responsibility to review the record for errors under Mr. Jorgensen's reading, describing it as an "extraordinary" burden to place on reviewing courts. Mr. Jorgensen agreed and moved on, explaining that he sensed the Court was likely to find that § 3742 did not provide any clear answer to the question presented. He then argued that there was no good reason to find the cross-appeal requirement jurisdictional, given the Court's recent efforts to limit the class of jurisdictional rules to those that are expressly created by statute. The cross-appeal requirement, he noted, is non-statutory.

That conclusion led Mr. Jorgensen to the third question: whether the rule admits of exceptions. Mr. Jorgensen argued that the Court, in Langnes, granted an exception for "good cause," and urged the Court to adopt a plain error standard for exceptions to the cross-appeal rule in sentencing appeals. The Chief Justice asked why"”if the error was so plain in this case"”the Government had elected not to appeal. Mr. Jorgensen responded that the Government had not explained its decision, but that he viewed it as a "blunder." He then invoked a common criticism of the exclusionary rule, stating that the defendant should not go free "when the constable blunders."

In her rebuttal, Ms. Howe made two quick points. First, she argued that § 3742 must be read as a whole, meaning that subsections (a) and (b) provide jurisdiction and, only then, is a court directed to make the determinations listed in (e) and (f). The latter subsections therefore could not serve as the affirmative grant of power to appellate courts that Amicus theorized. Ms. Howe also noted that Amicus's proposed "plain error" limit to an appellate court's responsibility to review the record was nowhere to be found in the statute itself.

Second, Ms. Howe argued that § 3742 should be viewed in historical context, and that prior to passage of the Sentencing Reform Act in 1984 the Government did not have any general right to appeal a criminal sentence. For that reason, Ms. Howe argued that the Government's right to appeal sentences has always been interpreted narrowly"”rendering an expansion of appellate review of criminal sentences even in the absence of a Government appeal particularly inappropriate.

Posted in Greenlaw v. U.S., Everything Else