U.S. Supreme Court Opinions: July 7, 2008

Daily Record, The (Baltimore), Jul 7, 2008

The cross-appeal rule, pivotal in the instant 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. The Court has called the rule "inveterate and certain," Morley Constr. Co. v. Maryland Casualty Co., 300 U.S. 185, and has in no case ordered an exception to it, El Paso Natural Gas Co. v. Neztsosie, 526 U.S. 473.

No exception was 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. [section]3742(b). That 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 8th Circuit held that the plain-error rule, FRCP 52(b), authorized it to order the sentence enhancement sua sponte. Nothing in the text or history of Rule 52(b), or in the 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 the Court's review, the Court has invoked the cross-appeal rule to bar the correction. See, e.g., Chittenden v. Brewster, 2 Wall. 191; Strunk v. United States, 412 U.S. 434.

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 [section]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.

Amicus curiae, invited by the Court to brief and argue the case in support of the Court of Appeals' judgment, linked argument based on Rule 52(b) to similar argument based on 28 U.S.C. [section]2106. For substantially the same reasons that Rule 52(b) does not override the cross-appeal rule, [section]2106 does not do so either.

Amicus also argued that 18 U.S.C. [section]3742, which governs appellate review of criminal sentences, overrides the cross-appeal rule for sentences "imposed in violation of law," [section]3742(e). Amicus' construction of [section]3742 was novel and complex, but ultimately unpersuasive.

At the time [section]3742 was enacted, the cross-appeal rule was a solidly grounded rule of appellate practice. Congress had crafted explicit exceptions to the cross-appeal rule in earlier statutes governing sentencing appeals, i.e., the Organized Crime Control Act of 1970 and the Controlled Substances Act of 1970. When Congress repealed those exceptions and enacted [section]3742, it did not similarly express in the text of [section]3742 any exception to the cross-appeal rule. That drafting history suggested that Congress was aware of the cross-appeal rule and framed [section]3742 expecting that the new provision would operate in harmony with it.