Greenlaw v. United States

This criminal law case was brought by the Supreme Court Litigation Clinic at Stanford Law School. What a great experience it would be for students, under the guidance of a seasoned practitioner, to learn how to research a division of authority in the Circuit Courts of Appeal, find a case which presented this division nicely, and draft a brief to present the problem to the Court. The vehicle for this learning experience was a division in the Circuit Courts that can best be expressed in a short question:

"May a Circuit Court of Appeals increase the sentence of a criminal defendant sua sponte (i.e, on its own) when the Government hasn't appealed the inadequacy of the sentence?

To put the "numbers" issue before you directly, Greenlaw (whom we will meet below) was sentenced by the US District Court to 442 months in prison (that, friends, is nearly 37 years) for various drug and firearm offenses. He appealed the sentence as being too harsh. The 8th Circuit, rather than being sympathetic to him, decided that the district court had misread the sentencing statute and that, in fact, Greenlaw deserved another 15 years, bringing his total sentence to 622 months (case is at 481 F3d 601 (8th Cir. 2007)). The government had not asked for this and Greenlaw had asked for a lesser sentence. The question of the case before the Supreme Court comes down simply to this. Can the Court of Appeals do this, when even the government didn't pursue an enhanced sentence? Well, let's meet the hapless Mr. Greenlaw and his crime.

It Starts In South Minneapolis

Greenlaw and seven of his buddies were arrested and accused of being members of a street gang that sold crack cocaine on the south side of Minneapolis. Six of the guys had the wisdom to plead guilty, but Greenlaw and an associate decided to stand trial. After a two-week jury trial, he was convicted on the following charges: conspiracy to distribute in excess of fifty grams of crack cocaine (Count 1), conspiracy to possess firearms in relation to a drug trafficking crime (Count 2), carrying a firearm in relation to a drug trafficking crime (Counts 4), conspiracy to assault with a dangerous weapon (Count 5), two counts of assault with a dangerous weapon (Counts 6 and 8), and carrying a firearm during a crime of violence. He was also convicted of Count 10--identical to Count 4--but that is the nub of this case.

The court sentenced him to a total of 262 months for the various drug and conspiracy counts, with most of them running concurrently. Then it turned to the gun counts. Under 18 USC sec. 924(c), the government argued Greenlaw should be sentenced to a minimum sentence of five years for the first gun offense (Count 4) and an additional consecutive term of 25 years for the second gun count (Count 10) because the second gun count constituted a "second or subsequent conviction" under 18 USC sec. 924 (c)(1)(C). But the trial court disagreed with the Government and concluded that Count 10 was not a "second or subsequent conviction" because in fact this was all part of the same case. He was only "convicted at the entry of judgment of conviction." Thus, the court sentenced him to five years for the first gun charge and ten years (instead of 25) for the second. These years were to be served consecutive to (i.e., "after') the first 262 months were completed. Thus, when you add 15 years (180 months) to the 262 months, you have a sentence of 442 months for Greenlaw. This is nearly 37 years in prison.

At the Court of Appeals

Even though the government had been gunning, so to speak, for an additional 15 years on Count 10, it decided not to cross-appeal when Greenlaw appealed the sentence. Greenlaw argued, predictably, that he should have received a downward departure in sentencing. The government probably was thinking that it had put him away for 37 years and that period was long enough.

But then the Court of Appeals (8th Circuit) got its hands on the case. Rather than affirming the district court's decision, the 8th Circuit on its own (sua sponte for those fluent in Latin) vacated Greenlaw's sentence and remanded with instructions to increase his sentence by 15 years because it concluded that the district court had erred in declining to apply the 25 year mandatory minium sentence for "second and subsequent" gun convictions under sec. 924(c)(1)(C). Even though the government didn't appeal the issue, the court concluded:

"[b]ecause this error seriously affects substantial rights and the fairness, integrity, and public reputation of judicial proceedings, and because we think it is judicially efficient for us to address the error, we exercise our discretion under Fed. R. Crim. P. 52(b) and find the district court plainly erred in excluding the statutory mandatory sentence under Count 10."

Once you see the words "plain error" in an appellate decision, you know that it gives the appellate court the green light to do whatever it wants, bound only by the language of the statute they are construing. So, the court decided to tack on another 15 years to Mr. Greenlaw's sentence. The 8th Circuit was aware that it was not acting in a vacuum: two other Circuits agreed with it, even though there were some which wouldn't allow it.

Conclusion--What Will the Supreme Court Do?

Normally, on criminal law matters, I would say that this Court leans "right" and that therefore there would be as much hope for a defendant as for someone entering into the way described in Canto I of Dante's Inferno. But there is a factor here that, I think, will lead the Court to reverse the 8th Circuit. Ever since 2000, Justice Scalia (with Thomas as his sidekick) has been bothered by enhanced criminal sentences without a jury finding that each one of the elements which leads to the enhanced sentence has been proved beyond reasonable doubt. That is, Scalia is very devoted to the adversarial process (his Crawford opinion, on confronting accusers, is another case in point); here there is an inkling that adversarial process was sacrificed to the whims of the appellate court. Thus, I would expect a reversal of the sentence, even though the vote may be close.

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