OPINION OF THE COURT GREENLAW V. UNITED STATES 554 U. S. ____ (2008) SUPREME COURT OF THE UNITED STATES NO. 07-330 MICHAEL GREENLAW, aka MIKEY, PETITIONER v. UNITED STATES

															on writ of certiorari to the united states court of
appeals for the eighth circuit

															[June 23, 2008]

															   Justice Ginsburg delivered the
opinion of the Court.

															   This case concerns the role of
courts in our adversarial system. The specific question presented:
May a United States Court of Appeals, acting on its own initiative,
order an increase in a defendant’s sentence? Petitioner Michael J.
Greenlaw was convicted of various offenses relating to drugs and
firearms, and was sentenced to imprisonment for 442 months. He
appealed urging, inter alia , that his sentence was
unreasonably long. After rejecting all of Greenlaw’s arguments, the
Court of Appeals determined, without Government invitation, that
the applicable law plainly required a prison sentence 15 years
longer than the term the trial court had imposed. Accordingly, the
appeals court instructed the trial court to increase Greenlaw’s
sentence to 622 months. We hold that, absent a Government appeal or
cross-appeal, the sentence Greenlaw received should not have been
increased. We therefore vacate the Court of Appeals’ judgment.

															I

															   Greenlaw was a member of a gang
that, for years, controlled the sale of crack cocaine in a
southside Minneapolis neighborhood. See United States v. Carter , 481 F. 3d 601, 604 (CA8 2007) (case below).
To protect their drug stash and to prevent rival dealers from
moving into their territory, gang members carried and concealed
numerous weapons. See id ., at 605. For his part in
the operation, Greenlaw was charged, in the United States
District Court for the District of Minnesota, with eight offenses;
after trial, he was found guilty on seven of the charges.
App. to Pet. for Cert. 16a–17a.

															   Among Greenlaw’s convictions were
two for violating 18 U. S. C. §924(c)(1)(A), which prohibits
carrying a firearm during and in relation to a crime of violence or
a drug trafficking crime: His first §924(c) conviction was for
carrying a firearm in connection with a crime committed in 1998;
his second, for both carrying and discharging a firearm in
connection with a crime committed in 1999. App. to Pet. for
Cert. 17a. A first conviction for violating §924(c) carries a
mandatory minimum term of 5 years, if the firearm is simply
carried. §924(c)(1)(A)(i). If the firearm is also discharged, the
mandatory minimum increases to 10 years. §924(c)(1)(A)(iii). For “a
second or subsequent conviction,” however, whether the weapon is
only carried or discharged as well, the mandatory minimum jumps to
25 years. §924(c)(1)(C)(i). Any sentence for violating §924(c),
moreover, must run consecutively to “any other term of
imprisonment,” including any other conviction under §924(c).
§924(c)(1)(D)(ii).

															   At sentencing, the District Court made an
error. Over the Government’s objection, the court held that a
§924(c) conviction does not count as “second or subsequent” when it
is “charged in the same indictment” as the defendant’s first
§924(c) conviction. App. 59, 61–62. The error was plain
because this Court had held, in Deal v. United
States , 508 U.
S. 129 (1993), that when a defendant is charged in the same
indictment with more than one offense qualifying for punishment
under §924(c), all convictions after the first rank as “second or
subsequent,” see id ., at 132–137.

															   As determined by the District Court,
Greenlaw’s sentence included 262 months (without separately
counting sentences that ran concurrently) for all his convictions
other than the two under §924(c). For the first §924(c) offense,
the court imposed a 5-year sentence in accord with
§924(c)(1)(A)(i). As to the second §924(c) conviction, the District
Court rejected the Government’s request for the 25-year minimum
prescribed in §924(c)(1)(C) for “second or subsequent” offenses;
instead, it imposed the 10-year term prescribed in
§924(c)(1)(A)(iii) for first-time offenses.[ Footnote 1 ] The total sentence thus calculated came to
442 months.

															   Greenlaw appealed to the United States Court
of Appeals for the Eighth Circuit, urging, inter alia ,
that the appropriate total sentence for all his crimes was 15
years. See 481 F. 3d, at 607. The Court of Appeals found
no merit in any of Greenlaw’s arguments. Id .,
at 606–607. Although the Government did not appeal or
cross-appeal, id ., at 608, it did note, on brief and
at oral argument, the District Court’s error: Greenlaw’s sentence
should have been 15 years longer than the 442 months imposed by the
District Court, the Government observed, because his second §924(c)
conviction called for a 25-year (not a 10-year) mandatory minimum
consecutive sentence.

															   The Government made the observation that the
sentence was 15 years too short only to counter Greenlaw’s argument
that it was unreasonably long. See App. 84–86; Recording of Oral
Arg. in United States v. Carter ,
No. 05–3391, (CA8, Sept. 26, 2006), at 16:53–19:04,
available at http://www.ca8.uscourts.gov/oralargs/oaFrame.html (as
visited June 13, 2008). Having refrained from seeking correction of
the District Court’s error by pursuing its own appeal, the
Government simply urged that Greenlaw’s sentence should be
affirmed.

															   The Court of Appeals acknowledged that the
Government, while objecting at sentencing to the trial court’s
erroneous reading of §924(c)(1)(C), had elected to seek no
appellate court alteration of Greenlaw’s sentence. 481 F. 3d,
at 608. Relying on the “plain-error rule” stated in Federal
Rule of Criminal Procedure 52(b), however, the appeals court held
that it had discretion to raise and correct the District Court’s
error on its own initiative. 481 F. 3d, at 608–609. The
Court of Appeals therefore vacated the sentence and instructed the
District Court “to impose the [statutorily mandated] consecutive
minimum sentence of 25 years.” Id ., at 611.

															   Petitioning for rehearing and rehearing en
banc, Greenlaw asked the Eighth Circuit to adopt the position
advanced by the Seventh Circuit in United States v. Rivera , 411 F. 3d 864 (2005). App. 95. “By deciding
not to take a cross-appeal,” the Seventh Circuit stated, “the
United States has ensured that [the defendant’s] sentence cannot be
increased.” 411 F. 3d, at 867. The Eighth Circuit denied
rehearing without an opinion. App. to Pet. for Cert. 28a. On
remand, as instructed by the Court of Appeals, the District Court
increased Greenlaw’s sentence by 15 years, yielding a total prison
term of 622 months. App. 103–104, 109.

															   Greenlaw petitioned for certiorari noting a
division among the Circuits on this question: When a defendant
unsuccessfully challenges his sentence as too high, may a court of
appeals, on its own initiative, increase the sentence absent a
cross-appeal by the Government? In response, the Government
“agree[d] with [Greenlaw] that the court of appeals erred in sU. S.onte remanding the case with directions to enhance
petitioner’s sentence.” Brief in Opposition 12. We granted review
and invited Jay T. Jorgensen to brief and argue this case, as amicus curiae , in support of the Court of Appeals’
judgment. 552 U. S. ___ (2008). Mr. Jorgensen accepted the
appointment and has well fulfilled his assigned responsibility.

															II

															   In our adversary system, in both
civil and criminal cases, in the first instance and on appeal, we
follow the principle of party presentation. That is, we rely on the
parties to frame the issues for decision and assign to courts the
role of neutral arbiter of matters the parties present. To the
extent courts have approved departures from the party presentation
principle in criminal cases, the justification has usually been to
protect a pro se litigant’s rights. See Castro v. United States , 540 U. S. 375 , 381–383
(2003).[ Footnote 2 ] But as a
general rule, “[o]ur adversary system is designed around the
premise that the parties know what is best for them, and are
responsible for advancing the facts and arguments entitling them to
relief.” Id ., at 386 (Scalia, J., concurring in part and
concurring in judgment).[ Footnote
3 ] As cogently explained:

															“[Courts] do not, or should not, sally forth each
day looking for wrongs to right. We wait for cases to come to us,
and when they do we normally decide only questions presented by the
parties. Counsel almost always know a great deal more about their
cases than we do, and this must be particularly true of counsel for
the United States, the richest, most powerful, and best represented
litigant to appear before us.” United States v. Samuels , 808 F. 2d 1298, 1301 (CA8 1987) (R. Arnold,
J., concurring in denial of reh’g en banc).

															   The cross-appeal rule, pivotal in
this case, is both informed by, and illustrative of, the party
presentation principle. Under that unwritten but longstanding rule,
an appellate court may not alter a judgment to benefit a
nonappealing party. This Court, from its earliest years, has
recognized that it takes a cross-appeal to justify a remedy in
favor of an appellee. See McDonough v. Dannery , 3
Dall. 188, 198 (1796). We have called the rule “inveterate and
certain.” Morley Constr. Co. v. Maryland Casualty
Co. , 300 U. S.
185 , 191 (1937).

															   Courts of Appeals have disagreed, however, on
the proper characterization of the cross-appeal rule: Is it
“jurisdictional,” and therefore exceptionless, or a “rule of
practice,” and thus potentially subject to judicially created
exceptions? Compare, e.g. , Johnson v. Teamsters Local 559 , 102 F. 3d 21, 28–29 (CA1 1996)
(cross-appeal rule “is mandatory and jurisdictional”), with, e.g. , American Roll-On Roll-Off Carrier, LLC v. P & O Ports Baltimore, Inc. , 479 F. 3d 288,
295–296 (CA4 2007) (“cross-appeal requirement [is] one of practice,
[not] a strict jurisdictional requirement”). Our own opinions
contain statements supporting both characterizations. Compare, e.g. , Morley Constr. Co. , 300 U. S., at 187
(cross-appeal rule defines “[t]he power of an appellate
court to modify a decree” (emphasis added)), with, e.g. , Langnes v. Green , 282 U. S. 531 , 538
(1931) (cross-appeal requirement is “a rule of practice which
generally has been followed”).

															   In El Paso Natural Gas Co. v. Neztsosie , 526 U. S. 473 , 480
(1999), we declined to decide “the theoretical status” of the
cross-appeal rule. It sufficed to point out that the rule was
“firmly entrenched” and served to advance “institutional interests
in fair notice and repose.” Ibid . “Indeed,” we noted, “in
more than two centuries of repeatedly endorsing the cross-appeal
requirement, not a single one of our holdings has ever recognized
an exception to the rule.” Ibid . Following the approach
taken in Neztsosie , we again need not type the rule
“jurisdictional” in order to decide this case.

															   Congress has eased our decision by specifying
the instances in which the Government may seek appellate review of
a sentence, and then adding this clear instruction: Even when a
United States Attorney files a notice of appeal with respect to a
sentence qualifying for review, “[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.
§3742(b). Congress thus entrusted to named high-ranking officials
within the Department of Justice responsibility for determining
whether the Government, on behalf of the public, should seek a
sentence higher than the one imposed. It would severely undermine
Congress’ instruction were appellate judges to “sally forth” on
their own motion, cf. supra , at 5, to take up errors
adverse to the Government when the designated Department of Justice
officials have not authorized an appeal from the sentence the trial
court imposed.[ Footnote 4 ]

															   This Court has recognized that “the Executive
Branch has exclusive authority and absolute discretion to decide
whether to prosecute a case.” United States v. Nixon , 418
U. S. 683 , 693 (1974). We need not decide whether comparable
authority and discretion are lodged in the Executive Branch with
respect to the pursuit of issues on appeal. We need only recognize
that Congress, in §3742(b), has accorded to 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. That measure should garner the Judiciary’s full respect.

															III

															A

															   In ordering the District Court to
add 15 years to Greenlaw’s sentence, despite the absence of a
cross-appeal by the Government, the Court of Appeals identified
Federal Rule of Criminal Procedure 52(b) as the source of its
authority. See 481 F. 3d, at 608–609, and n. 5. Rule
52(b) reads: “A plain error that affects substantial rights may be
considered even though it was not brought to the court’s
attention.” Nothing in the text or history of Rule 52(b)
suggests that the rulemakers, in codifying the plain-error
doctrine, meant to override the cross-appeal requirement. See
Advisory Committee’s Notes on Fed. Rule Crim. Proc. 52, 18 U.
S. C. App., p. 1664 (describing Rule 52(b) as “a
restatement of existing law”).

															   Nor do our opinions support a
plain-error exception to the cross-appeal rule. This Court has
indeed noticed, and ordered correction of, plain errors not raised
by defendants, but we have done so only to benefit a defendant who
had himself petitioned the Court for review on other grounds. See, e.g. , Silber v. United States , 370 U. S. 717 (1962) (per curiam) . In no case have we applied plain-error
doctrine to the detriment of a petitioning party. Rather, in every
case in which correction of a plain error would result in
modification of a judgment to the advantage of a party who did not
seek this Court’s review, we have invoked the cross-appeal rule to
bar the correction.

															   In Chittenden v. Brewster , 2
Wall. 191 (1865), for example, the appellants asserted that an
award entered in their favor was too small. A prior decision of
this Court, however, made it plain that they were entitled to no
award at all. See id ., at 195–196 (citing Jones v. Green , 1 Wall. 330 (1864)). But because
the appellee had not filed a cross-appeal, the Court left the award
undisturbed. See 2 Wall., at 196. Strunk v. United States , 412 U. S. 434 (1973),
decided over a century later, is similarly illustrative. There, the
Court of Appeals had determined that the defendant was denied his
right to a speedy trial, but held that the proper remedy was
reduction of his sentence as compensation for the delay, not
dismissal of the charges against him. As petitioner in this Court,
the defendant sought review of the remedial order. See id ., at 435. The Court suggested that there may have
been no speedy trial violation, as “it seem[ed] clear that [the
defendant] was responsible for a large part of the … delay.” Id ., at 436. But because the Government had not
raised the issue by cross-petition, we considered the case on the
premise that the defendant had been deprived of his Sixth Amendment
right, id ., at 437, and ruled that dismissal of the
indictment was the proper remedy, id .,
at 439–440.

															   Even if there might be circumstances in which
it would be proper for an appellate court to initiate plain-error
review, sentencing errors that the Government refrained from
pursuing would not fit the bill. Heightening the generally
applicable party presentation principle, Congress has provided a
dispositive direction regarding sentencing errors that aggrieve the
Government. In §3742(b), as earlier explained, see supra ,
at 7, Congress designated leading Department of Justice
officers as the decisionmakers responsible for determining when
Government pursuit of a sentencing appeal is in order. Those high
officers, Congress recognized, are best equipped to determine where
the Government’s interest lies. Rule 52(b) does not invite
appellate court interference with their assessment.

															B Amicus supporting the
Eighth Circuit’s judgment links the argument based on
Rule 52(b) to a similar argument based on 28 U. S. C.
§2106. See Brief for Amicus Curiae by Invitation of the
Court 40–43 (hereinafter Jorgensen Brief). Section 2106 states that
federal appellate courts “may affirm, modify, vacate, set aside or
reverse any judgment … lawfully brought before it for review.” For
substantially the same reasons that Rule 52(b) does not
override the cross-appeal requirement, §2106 does not do so either.
Section 2106 is not limited to plain errors, much less to
sentencing errors in criminal cases—it applies to all cases, civil
and criminal, and to all errors. Were the construction amicus offers correct, §2106 would displace the
cross-appeal rule cross-the-board. The authority described in
§2106, we have observed, “must be exercised consistent with the
requirements of the Federal Rules of Civil Procedure as interpreted
by this Court.” Unitherm Food Systems, Inc. v. Swift-Eckrich, Inc. , 546 U. S. 394 , 402–403,
n. 4 (2006). No different conclusion is warranted with respect
to the “inveterate and certain” cross-appeal rule. Morley
Constr. Co. , 300 U. S., at 191.

															C

															   In defending the Court of Appeals
judgment, amicus places heavy weight on an argument pinned
not to Rule 52(b) or 28 U. S. C. §2106, but to the text
of 18 U. S. C. §3742, the Criminal Code provision governing
appellate review of criminal sentences. As amicus reads
§3742, once either party appeals a sentence, the Court of Appeals
must remand “any illegal sentence regardless of whether the remand
hurts or helps the appealing party.” Jorgensen Brief 9. Congress so
directed, amicus argues, by instructing that, upon review
of the record, a court of appeals “ shall determine …
whether the sentence was imposed in violation of law,” §3742(e)
(emphasis added), and “ shall remand ” if it so determines,
§3742(f)(1) (2000 ed., Supp. V) (emphasis added). See Jorgensen
Brief 10–11, and n. 3. Amicus makes a further
text-based observation. He notes that §3742(f)(2)—the provision
covering sentences “outside the applicable [G]uideline range”—calls
for a remand only where a departure from the Federal Sentencing
Guidelines harms the appellant. In contrast, amicus emphasizes, §3742(f)(1)—the provision controlling sentences imposed
“in violation of law” and Guideline application errors—contains no
such appellant-linked limitation. The inference amicus draws from this distinction is that Congress intended to override
the cross-appeal rule for sentences controlled by §3742(f)(1), i.e. , those imposed “in violation of law” (or incorrectly
applying the Guidelines), but not for Guideline departure errors,
the category covered by §3742(f)(2). See id .,
at 14–15.

															   This novel construction of §3742, presented
for the first time in the brief amicus filed in this
Court,[ Footnote 5 ] is clever
and complex, but ultimately unpersuasive. Congress enacted §3742 in
1984. See Sentencing Reform Act, §213(a), 98 Stat. 2011. At that
time, the cross-appeal requirement was a solidly grounded rule of
appellate practice. See supra , at 6. The inference
properly drawn, we think, is that Congress was aware of the
cross-appeal rule, and framed §3742 expecting that the new
provision would operate in harmony with the “inveterate and
certain” bar to enlarging judgments in favor of an appellee who
filed no cross-appeal. Cf. Astoria Fed. Sav. & Loan
Assn. v. Solimino , 501 U. S. 104 , 108
(1991) (“Congress is understood to legislate against a background
of common-law adjudicatory principles.”).

															   Congress indicated awareness of the
cross-appeal rule in an earlier measure, the Organized Crime
Control Act of 1970 (OCCA), Pub. L. 91–452, 84 Stat. 922, which
provided for review of sentences of “dangerous special offenders.”
See §1001(a), id ., at 948–951. For that Act, Congress
crafted an explicit exception to the cross-appeal rule. It ordered
that an appeal of a sentence taken by the Government “shall be
deemed the taking of [an appeal] by the defendant.” Id .,
at 950. But the “deeming” ran in only one direction: “[A]
sentence may be made more severe” OCCA provided, “only on review …
taken by the United States.” Id .,
at 950–951.[ Footnote 6 ]
When Congress repealed this provision and, in §3742, broadly
provided for appellate review of sentences, it did not similarly
express in the new text any exception to the cross-appeal rule. In
short, Congress formulated a precise exception to the cross-appeal
rule when that was its intention. Notably, the exception Congress
legislated did not expose a defendant to a higher sentence in
response to his own appeal. Congress spoke plainly in the 1970
legislation, leaving nothing for a court to infer. We therefore see
no reason to read the current statute in the inventive manner amicus proposes, inferring so much from so little. Amicus ’ reading of §3742, moreover,
would yield some strange results. We note two, in particular. Under
his construction, §3742 would give with one hand what it takes away
with the other: §3742(b) entrusts to certain Government officials
the decision whether to appeal an illegally low sentence, see supra , at 7; but according to amicus ,
§§3742(e) and (f) would instruct appellate courts to correct an
error of that order on their own initiative, thereby trumping the
officials’ decision. We resist attributing to Congress an intention
to render a statute so internally inconsistent. Cf. Western Air
Lines, Inc. v. Board of Equalization of S. D. , 480 U. S. 123 ,
133 (1987) (“The illogical results of applying [a proffered]
interpretation … argue strongly against the conclusion that
Congress intended th[o]se results[.]”). Further, the construction
proposed by amicus would draw a puzzling distinction
between incorrect applications of the Sentencing Guidelines,
controlled by §3742(f)(1), and erroneous departures from the
Guidelines, covered by §3742(f)(2). The latter would be subject to
the cross-appeal rule, the former would not. We do not see why
Congress would want to differentiate Guidelines decisions this
way.[ Footnote 7 ]

															D

															   In increasing Greenlaw’s sentence
by 15 years on its own initiative, the Eighth Circuit did not
advert to the procedural rules setting deadlines for launching
appeals and cross-appeals. Unyielding in character, these rules may
be seen as auxiliary to the cross-appeal rule and the party
presentation principle served by that rule. Federal Rule of
Appellate Procedure 3(a)(1) provides that “[a]n appeal permitted by
law … may be taken only by filing a notice of appeal …
within the [prescribed] time.” (Emphasis added.) Complementing
Rule 3(a)(1), Rule 4(b)(1)(B)(ii) instructs that, when the
Government has the right to cross-appeal in a criminal case, its
notice “ must be filed … within 30 days after … the filing
of a notice of appeal by any defendant.” (Emphasis added.) The
filing time for a notice of appeal or cross-appeal,
Rule 4(b)(4) states, may be extended “for a period not to
exceed 30 days.” Rule 26(b) bars any extension beyond that
time.

															   The firm deadlines set by the
Appellate Rules advance the interests of the parties and the legal
system in fair notice and finality. Thus a defendant who appeals
but faces no cross-appeal can proceed anticipating that the
appellate court will not enlarge his sentence. And if the
Government files a cross-appeal, the defendant will have fair
warning, well in advance of briefing and argument, that pursuit of
his appeal exposes him to the risk of a higher sentence. Given
early warning, he can tailor his arguments to take account of that
risk. Or he can seek the Government’s agreement to voluntary
dismissal of the competing appeals, see Fed. Rule App. Proc. 42(b),
before positions become hardened during the hours invested in
preparing the case for appellate court consideration.

															   The strict time limits on notices of appeal
and cross-appeal would be undermined, in both civil and criminal
cases, if an appeals court could modify a judgment in favor of a
party who filed no notice of appeal. In a criminal prosecution,
moreover, the defendant would appeal at his peril, with nothing to
alert him that, on his own appeal, his sentence would be increased
until the appeals court so decreed. In this very case, Greenlaw
might have made different strategic decisions had he known soon
after filing his notice of appeal that he risked a 15-year increase
in an already lengthy sentence.

															E

															   We note that nothing we have said
in this opinion requires courts to modify their current practice in
so-called “sentencing package cases.” Those cases typically involve
multicount indictments and a successful attack by a defendant on
some but not all of the counts of conviction. The appeals court, in
such instances, may vacate the entire sentence on all counts so
that, on remand, the trial court can reconfigure the sentencing
plan to assure that it remains adequate to satisfy the sentencing
factors in 18 U. S. C. §3553(a) (2000 ed. and Supp. V). In
remanded cases, the Government relates, trial courts have imposed a
sentence on the remaining counts longer than the sentence
originally imposed on those particular counts, but yielding an
aggregate sentence no longer than the aggregate sentence initially
imposed. See Brief for United States 23, n. 11 (citing, inter alia , United States v. Pimienta-Redondo , 874 F. 2d 9 (CA1 1989) (en banc)).
Thus the defendant ultimately may gain nothing from his limited
success on appeal, but he will also lose nothing, as he will serve
no more time than the trial court originally ordered.

															   The practice the Government
describes is not at odds with the cross-appeal rule, which stops
appellate judges from adding years to a defendant’s sentence on
their own initiative. It simply ensures that the sentence
“ ‘will suit not merely the offense but the individual
defendant.’ ” Pimienta-Redondo , 874 F. 2d,
at 14 (quoting Wasman v. United States , 468 U. S. 559 ,
564 (1984)). And the assessment will be made by the sentencing
judge exercising discretion, not by an appellate panel ruling on an
issue of law no party tendered to the court.[ Footnote 8 ]

															   This is not a “sentencing package” case.
Greenlaw was unsuccessful on all his appellate issues. There was no
occasion for the Court of Appeals to vacate his sentence and no
warrant, in the absence of a cross-appeal, to order the addition of
15 years to his sentence.[ Footnote
9 ]

															*  *  *

															   For the reasons stated, the
judgment of the United States Court of Appeals for the Eighth
Circuit is vacated, and the case is remanded for further
proceedings consistent with this opinion.

															It is so ordered. Footnote 1 The court added 10 years rather than 5 based
on the jury’s finding that the firearm Greenlaw carried in
connection with the second §924(c) offense had been discharged. See
App. 44–45, 59–60. Footnote 2 Because this case does not present the issue,
we take no position on whether correction of an error prejudicial
to a nonappealing criminal defendant might be justified as a
measure to obviate the need for a collateral attack. See post , at 6–7. Footnote 3 Cf. Kaplan, Civil Procedure—Reflections on
the Comparison of Systems, 9 Buffalo L. Rev. 409, 431–432
(1960) (U. S. system “exploits the free-wheeling energies of
counsel and places them in adversary confrontation before a
detached judge”; “German system puts its trust in a judge of
paternalistic bent acting in cooperation with counsel of somewhat
muted adversary zeal”). Footnote 4 The dissent reads §3742(b) not as a restraint
on sU. S.onte error correction by appellate courts, but
simply as apportioning “authority within an executive
department.” Post , at 11; see post ,
at 13 (“[P]erhaps Congress wanted to … giv[e] high-level
officials the authority to nix meritless or marginal [sentencing
appeals].”). A statute is hardly needed to establish the authority
of the Attorney General and Solicitor General over local U. S.
Attorneys on matters relating to the prosecution of criminal cases,
including appeals of sentences. It seems unlikely, moreover, that
Congress, having lodged discretion in top-ranking Department of
Justice officers, meant that discretion to be shared with more than
200 appellate judges. Footnote 5 An appellee or respondent may defend the
judgment below on a ground not earlier aired. See United
States v. American Railway Express Co. , 265 U. S. 425 , 435
(1924) (“[T]he appellee may, without taking a cross-appeal, urge in
support of a decree any matter appearing in the record[.]”). Footnote 6 The Controlled Substances Act of 1970,
§409(h), 84 Stat. 1268–1269, contained matching instructions
applicable to “dangerous special drug offender[s].” The
prescriptions in both Acts were replaced by §3742. See Sentencing
Reform Act of 1984, §§212(2), 213(a), 219, 98 Stat. 1987, 2011,
2027. Footnote 7 In rejecting the interpretation of §§3742(e)
and (f) proffered by amicus , we take no position on the
extent to which the remedial opinion in United States v. Booker , 543
U. S. 220 (2005), excised those provisions. Compare Rita v. United States , 551 U. S. ___, ___ (2007)
(slip op., at 2) (Stevens, J., concurring) ( Booker excised only the portions of §3742(e) that required de
novo review by courts of appeals), with 551 U. S., at ___
(slip op., at 17) (Scalia, J., concurring in part and
concurring in judgment) ( Booker excised all of
§§3742(e) and (f)). See also Kimbrough v. United
States , 552 U. S. ___, ___ (2007) (slip op., at 3) (Thomas,
J., dissenting) (the Booker remedial opinion, whatever it
held, cannot be followed). Footnote 8 The dissent suggests that our reading of the
cross-appeal rule is anomalous because it could bar a court of
appeals from correcting an error that would increase a defendant’s
sentence, but after a “successful” appeal the district court itself
could rely on that same error to increase the sentence. See post , at 10–11, and n. 2. The cross-appeal rule,
we of course agree, does not confine the trial court. But default
and forfeiture doctrines do. It would therefore be hard to imagine
a case in which a district court, after a court of appeals vacated
a criminal sentence, could properly increase the sentence based on
an error the appeals court left uncorrected because of the
cross-appeal rule. What of cases remanded post- Booker on
defendants’ appeals, the dissent asks? Post ,
at 10–11, n. 2. In those cases, defendants invited and
received precisely the relief they sought, and the Sixth Amendment
required. Neither the cross-appeal rule nor default and forfeiture
had any role to play. Footnote 9 For all its spirited argument, the dissent
recognizes the narrow gap between its core position and the
Court’s. The cross-appeal rule, rooted in the principle of party
presentation, the dissent concedes, should hold sway in the “vast
majority of cases.” Post , at 4. Does this case qualify as
the “rare” exception to the “strong rule of practice” the dissent
advocates? See ibid . Greenlaw was sentenced to
imprisonment for 442 months. The Government might have chosen to
insist on 180 months more, but it elected not to do so. Was the
error so “grossly prejudicial,” post , at 7, 9, so
harmful to our system of justice, see post , at 7–8, as to
warrant sua sponte correction? By what standard is the
Court of Appeals to make such an assessment? Without venturing to
answer these questions, see post , at 13, n. 3,
the dissent would simply “entrust the decision to initiate error
correction to the sound discretion of the courts of appeals,” post , at 1. The “strong rule” thus may be broken whenever
the particular three judges composing the appellate panel see the
sentence as a “wron[g] to right.” See supra , at 5
(internal quotation marks omitted). The better answer, consistent
with our jurisprudence, as reinforced by Congress, entrusts “the
decision [whether] to initiate error correction” in this matter to
top counsel for the United States. See supra ,
at 7. 554 U. S. ____ (2008) GREENLAW V. UNITED STATES 554 U. S. ____ (2008) SUPREME COURT OF THE UNITED STATES NO. 07-330 MICHAEL GREENLAW, aka MIKEY, PETITIONER v. UNITED STATES

															on writ of certiorari to the united states court of
appeals for the eighth circuit

															[June 23, 2008]

															   Justice Breyer, concurring in the
judgment.

															   I agree with Justice Alito that
the cross-appeal requirement is simply a rule of practice for
appellate courts, rather than a limitation on their power, and I
therefore join Parts I–III of his opinion. Moreover, as a general
matter, I would leave application of the rule to the courts of
appeals, with our power to review their discretion “seldom to be
called into action.” Universal Camera Corp. v. NLRB , 340
U. S. 474 , 490 (1951). But since this case is now before us, I
would consider whether the Court of Appeals here acted properly.
Primarily for the reasons stated by the majority in footnote 9 of
its opinion, I believe that the court abused its discretion in sU. S.onte increasing petitioner’s sentence. Our precedent
precludes the creation of an exception to the cross-appeal
requirement based solely on the obviousness of the lower court’s
error. See, e.g. , Chittenden v. Brewster , 2 Wall. 191, 195–196 (1865). And I cannot see
how the interests of justice are significantly disserved by
permitting petitioner’s release from prison at roughly age 62,
after almost 37 years behind bars, as opposed to age 77. ALITO, J., DISSENTING GREENLAW V. UNITED STATES 554 U. S. ____ (2008) SUPREME COURT OF THE UNITED STATES NO. 07-330 MICHAEL GREENLAW, aka MIKEY, PETITIONER v. UNITED STATES

															on writ of certiorari to the united states court of
appeals for the eighth circuit

															[June 23, 2008]

															   Justice Alito, with whom Justice
Stevens joins, and with whom Justice Breyer joins as to
Parts I, II, and III, dissenting.

															   I respectfully dissent because I
view the cross-appeal requirement as a rule of appellate practice.
It is akin to the rule that courts invoke when they decline to
consider arguments that the parties have not raised. Both rules
rest on premises about the efficient use of judicial resources and
the proper role of the tribunal in an adversary system. Both are
sound and should generally be followed. But just as the courts have
made them, the courts may make exceptions to them, and I do not
understand why a reviewing court should enjoy less discretion to
correct an error sua sponte than it enjoys to raise and
address an argument sua sponte . Absent congressional
direction to the contrary, and subject to our limited oversight as
a supervisory court, we should entrust the decision to initiate
error correction to the sound discretion of the courts of
appeals.

															I

															   Before laying out my view in more
detail, I must first address the question whether federal courts
have subject-matter jurisdiction to enlarge an appellee’s judgment
in the absence of a cross-appeal. Because the Court would not
recognize any exceptions to the cross-appeal requirement when the
defendant appeals his sentence, it does not decide that question.
See ante , at 7. I must confront it, though I do not regard
it as a substantial question. The cross-appeal requirement seems to
me a prime example of a “ ‘rule of practice,’ subject to
exceptions, not an unqualified limit on the power of appellate
courts.” El Paso Natural Gas Co. v. Neztsosie , 526 U. S. 473 ,
480 (1999). While a court should generally enforce the cross-appeal
requirement, a departure from it would not divest the court of
jurisdiction.

															   This Court has never addressed
whether an appellate court’s jurisdiction to enlarge a judgment in
favor of an appellee is contingent on a duly filed cross-appeal.
The majority’s contention that “[o]ur own opinions contain
statements supporting” the “ ‘jurisdictional’ ”
characterization of the requirement, ante, at 6, relies on
a misreading of that precedent. The Court may have previously
characterized the cross-appeal requirement as limiting
“ ‘[t]he power of an appellate court to modify a
decree,’ ” ibid. (quoting Morley Constr. Co. v. Maryland Casualty Co. , 300 U. S. 185 , 187
(1937)), but it does not follow that jurisdiction is conditioned on
a properly filed cross-appeal. A court may lack the power to do
something for reasons other than want of jurisdiction, and a rule
can be inflexible without being jurisdictional. See Eberhart v. United States , 546 U. S. 12 , 19 (2005) (per curiam) .

															   The jurisdiction of the courts of appeals is
fixed by Congress. See Bowles v. Russell , 551 U.
S. ___, ___ (2007) (slip op., at 6); Ankenbrandt v. Richards , 504 U. S. 689 , 698
(1992) (“ ‘[T]he judicial power of the United States … is
(except in enumerated instances, applicable exclusively to this
Court) dependent for its distribution and organization, and for the
modes of its exercise, entirely upon the action of Congress’ ”
(quoting Cary v. Curtis , 3 How. 236, 245
(1845))). If Congress wants to withhold from the courts of appeals
the power to decide questions that expand the rights of
nonappealing parties, it may do so. See U. S. Const.,
Art. III, §1 (authorizing Congress to establish the lower
courts and, by corollary, to fix their jurisdiction); Kontrick v. Ryan , 540 U. S. 443 , 452
(2004) (“Only Congress may determine a lower federal court’s
subject-matter jurisdiction”). The jurisdictional question thus
reduces to whether Congress intended to make a cross-appeal a
condition precedent to the appellate court’s jurisdiction to
enlarge a judgment in favor of a nonappealing party.

															   As always with such questions, the text of the
relevant statute provides the best evidence of congressional
intent. The relevant statute in this case is 18 U. S. C. §3742
(2000 ed. and Supp. V). Section 3742(a) authorizes a
criminal defendant to “file a notice of appeal” to review a
sentence that was, among other possibilities, “imposed in violation
of law.” E.g., §3742(a)(1). Section 3742(b) provides
parallel authority for the Government to “file a notice of appeal”
to review unlawful sentences. E.g., §3742(b)(1). The
statute conditions the Government’s authority to further prosecute
its appeal on “the personal approval of the Attorney General, the
Solicitor General, or a deputy solicitor general designated by the
Solicitor General.” §3742(b).

															   Nothing in this language remotely suggests
that a court of appeals lacks subject-matter jurisdiction to
increase a defendant’s sentence in the absence of a cross-appeal by
the Government. In fact, the statute does not even mention
cross-appeals. It separately authorizes either party to “file a
notice of appeal,” but it never suggests that the reviewing court’s
power is limited to correcting errors for the benefit of the
appealing party. If anything, it suggests the opposite. Without
qualifying the appellate court’s power in any way, §3742(e)
instructs the court to determine, among other things, whether the
sentence was “imposed in violation of law.” §3742(e)(1). And while
§3742(f)(2) limits the action that a court of appeals can take
depending on which party filed the appeal, compare §3742(f)(2)(A)
(sentences set aside as “too high” if defendant filed) with
§3742(f)(2)(B) (sentences set aside as “too low” if Government
filed), no such limitation appears in §3742(f)(1). That paragraph
requires a court of appeals simply to set aside any sentence
“imposed in violation of law or imposed as a result of an incorrect
application of the sentencing guidelines.”

															II

															   Since a cross-appeal has no
effect on the appellate court’s subject-matter jurisdiction, the
cross-appeal requirement is best characterized as a rule of
practice. It is a rule created by the courts to serve interests
that are important to the Judiciary. The Court identifies two of
these interests: notice to litigants and finality. Ante, at 14; see also Neztsosie , supra , at 480. One
might add that the cross-appeal requirement also serves a third
interest: the appellate court’s interest in being adequately
briefed on the issues that it decides. See Fed. Rule App.
Proc. 28.1(c) and Advisory Committee’s Notes, 28 U. S. C.
App., pp. 615–616. Although these are substantial interests in the
abstract, I question how well an inflexible cross-appeal
requirement serves them. Notice . With respect to
notice, the benefits of an unyielding cross-appeal requirement are
insubstantial. When the Government files a notice of cross-appeal,
the defendant is alerted to the possibility that his or her
sentence may be increased as a result of the appellate decision.
But if the cross-appeal rule is, as I would hold, a strong rule of
practice that should be followed in all but exceptional instances,
the Government’s failure to file a notice of cross-appeal would
mean in the vast majority of cases that the defendant thereafter
ran little risk of an increased sentence. And the rare cases where
that possibility arose would generally involve errors so plain that
no conceivable response by the defendant could alter the result. It
is not unreasonable to consider an appealing party to be on notice
as to such serious errors of law in his favor. And while there may
be rare cases in which the existence of such a legal error would
come as a complete surprise to the defendant or in which argument
from the parties would be of assistance to the court, the solution
to such a problem is not to eliminate the courts of appeals’
authority to correct egregious errors. Rather, the appropriate
response is for the court of appeals to request supplemental
briefing or—if it deems that insufficient—simply to refuse to
exercise its authority. Cf. Irizarry v. United
States , 553 U. S. ___, ___ (2008) (slip op., at 9). In short,
the Court’s holding does not increase the substance of the notice
that a defendant receives; it merely accelerates that notice by at
most a few weeks in a very small number of cases.

															   The Court contends that “[g]iven early
warning, [the defendant] can tailor his arguments to take account
of [the risk of a higher sentence] … [o]r he can seek the
Government’s agreement to voluntary dismissal of the competing
appeals.” Ante, at 14 (citing Fed. Rule App.
Proc. 42(b)). But the Court does not explain how a notice of
cross-appeal, a boilerplate document, helps the defendant “tailor
his arguments.” Whether the cross-appeal rule is ironclad, as the
Court believes, or simply a strong rule of practice, a defendant
who wishes to appeal his or her sentence is always free to seek the
Government’s commitment not to cross-appeal or to terminate a
cross-appeal that the Government has already taken. Fed. Rule App.
Proc. 42(b). Finality. An inflexible cross-appeal
rule also does little to further the interest of the parties and
the Judiciary in the finality of decisions. An appellate court’s
decision to grant a nonappealing party additional relief does not
interrupt a long, undisturbed slumber. The error’s repose begins no
earlier than the deadline for filing a cross-appeal, and it ends as
soon as the reviewing court issues its opinion—and often much
sooner. Here, for example, the slumber was broken when the
Government identified the error in its brief as appellee. See Brief
for United States 5. Orderly Briefing . I do not doubt that
adversarial briefing improves the quality of appellate
decisionmaking, but it hardly follows that appellate courts should
be denied the authority to correct errors that seriously prejudice
nonappealing parties. Under my interpretation of the cross-appeal
rule, a court of appeals would not be obligated to address errors
that are prejudicial to a nonappealing party; a court of appeals
would merely have the authority to do so in appropriate cases. If a
court of appeals noticed such an error and concluded that it was
appropriate to address the issue, the court could, if it wished,
order additional briefing. If, on the other hand, the court
concluded that the issue was not adequately addressed by the briefs
filed by the parties in the ordinary course and that additional
briefing would interfere with the efficient administration of the
court’s work, the court would not be required to decide the issue.
Therefore, I do not see how the courts of appeals’ interest in
orderly briefing is furthered by denying those courts the
discretionary authority to address important issues that they find
it appropriate to decide.

															   Indeed, the inflexible cross-appeal rule that
the Court adopts may disserve the interest in judicial efficiency
in some cases. For example, correcting an error that prejudiced a
nonappealing defendant on direct review might obviate the need for
a collateral attack. Cf. Granberry v. Greer , 481 U. S. 129 ,
134 (1987) (allowing the Court of Appeals to address the merits of
an unexhausted habeas corpus petition if “the interests of comity
and federalism will be better served by addressing the merits
forthwith [than] by requiring a series of additional state and
district court proceedings before reviewing the merits of the
petitioner’s claim”); Munaf v. Geren , 553 U. S.
___, ___ (2008) (slip op., at 13) (recognizing “occasions … when it
is appropriate to proceed further and address the merits” of a
habeas corpus petition rather than reverse and remand on threshold
matters). Because the reviewing court is in the best position to
decide whether a departure from the cross-appeal rule would be
efficient, rigid enforcement of that rule is more likely to waste
judicial resources than to conserve them.

															   In sum, the Court exaggerates the interests
served by the cross-appeal requirement. At the same time, it
overlooks an important interest that the rule disserves: the
interest of the Judiciary and the public in correcting grossly
prejudicial errors of law that undermine confidence in our legal
system. We have repeatedly stressed the importance of that
interest, see, e.g., United States v. Olano , 507
U. S. 725 , 736–737 (1993); Press-Enterprise Co. v. Superior Court of Cal., Riverside Cty. , 464 U. S. 501 , 507
(1984); New York Central R. Co. v. Johnson , 279 U. S. 310 ,
318 (1929), and it has justified departures from our traditional
adversary framework in other contexts. The Court mentions one of
those contexts, see ante, at 5 ( pro se litigation), but there are others that deserve mention.

															   The most well-known is plain-error review.
Federal Rule of Criminal Procedure 52(b) authorizes reviewing
courts to correct “[a] plain error that affects substantial rights
… even though it was not brought to the court’s attention.”
Although I agree with the Court that this Rule does not
independently justify the Eighth Circuit’s decision, see ante, at 8–9, I believe that the Rule’s underlying policy
sheds some light on the issue before us. We have explained that
courts may rely on Rule 52(b) to correct only those plain
errors that “ ‘seriously affec[t] the fairness, integrity or
public reputation of judicial proceedings.’ ” Olano , supra , at 736 (quoting United States v. Atkinson , 297 U. S. 157 , 160
(1936)). We have thus recognized that preservation of the
“fairness, integrity or public reputation of judicial proceedings”
may sometimes justify a departure from the traditional adversarial
framework of issue presentation.

															   Perhaps the closest analogue to the
cross-appeal requirement is the rule of appellate practice that
restrains reviewing courts from addressing arguments that the
parties have not made. Courts typically invoke this rule to avoid
resolving a case based on an unaired argument, even if the argument
could change the outcome. See, e.g., Santiago v. Rumsfeld , 425 F. 3d 549, 552, n. 1 (CA9 2005); United States v. Cervini , 379 F. 3d 987,
994, n. 5 (CA10 2004). But courts also recognize that the rule
is not inflexible, see, e.g., Santiago , supra , at
552, n. 1, and sometimes they depart from it, see, e.g., United States Nat. Bank of Ore. v. Independent Ins. Agents of America, Inc., 508 U. S. 439 , 448
(1993) (“After giving the parties ample opportunity to address the
issue, the Court of Appeals acted without any impropriety in
refusing to accept what in effect was a stipulation on a question
of law” (citing Swift & Co. v. Hocking Valley
R. Co., 243 U. S. 281 , 289
(1917))); United States v. Moyer , 282 F. 3d
1311, 1317–1318 (CA10 2002); Dorris v. Absher ,
179 F. 3d 420, 425–426 (CA6 1999).

															   A reviewing court will generally address an
argument sua sponte only to correct the most patent and
serious errors. See, e.g., id., at 426
(concluding that the error, if overlooked, would result in “a
miscarriage of justice”); Consumers Union of U. S., Inc. v. Federal Power Comm’n , 510 F. 2d 656, 662 (CADC
1974) (balancing “considerations of judicial orderliness and
efficiency against the need for the greatest possible accuracy in
judicial decisionmaking”). Because the prejudicial effect of the
error and the impact of error correction on judicial resources are
matters best determined by the reviewing court, the court’s
decision to go beyond the arguments made by the parties is
committed to its sound discretion. See United States Nat. Bank
of Ore. , supra , at 448 (reviewing an appellate
court’s decision to address an argument sU. S.onte for
abuse of discretion).

															   This authority provides a good model for our
decision in this case. The Court has not persuaded me that the
interests at stake when a reviewing court awards a nonappealing
party additional relief are qualitatively different from the
interests at stake when a reviewing court raises an issue sU.
S.onte . Authority on the latter point recognizes that the
interest of the public and the Judiciary in correcting grossly
prejudicial errors of law may sometimes outweigh other interests
normally furthered by fidelity to our adversarial tradition. I
would recognize the same possibility here. And just as reviewing
courts enjoy discretion to decide for themselves when to raise and
decide arguments sua sponte , I would grant them
substantial latitude to decide when to enlarge an appellee’s
judgment in the absence of a cross-appeal.[ Footnote 1 ]

															III

															   The approach I advocate is not
out of step with our precedent. The Court has never decided whether
the cross-appeal requirement is “subject to exceptions [or] an
unqualified limit on the power of appellate courts.” Neztsosie , 526 U. S., at 480. That question was reserved
in Neztsosie , ibid. , even as the Court recognized
that lower courts had reached different conclusions, see id., at 480, n. 2. I would simply confirm what our
precedent had assumed: that there are exceptional circumstances
when it is appropriate for a reviewing court to correct an error
for the benefit of a party that has not cross-appealed the decision
below.

															   Indeed, the Court has already
reached the very result that it claims to disavow today. We have
long held that a sentencing court confronted with new circumstances
may impose a stiffer sentence on remand than the defendant received
prior to a successful appeal. See Chaffin v. Stynchcombe , 412 U. S. 17 , 23 (1973); North Carolina v. Pearce , 395 U. S. 711 , 719–720
(1969), overruled on other grounds, Alabama v. Smith , 490
U. S. 794 (1989). The Court makes no effort to explain the
analytical difference between those cases and this one. If a
sentencing court may rely on new circumstances to justify a longer
sentence on remand, why cannot one of the new circumstances be the
court’s discovery (by dint of appellate review) that its first
sentence was based on an error of law?[ Footnote 2 ]

															   Even today, the Court refuses to decide
whether the cross-appeal requirement admits of exceptions in
appropriate cases. While calling the rule “ ‘inveterate and
certain,’ ” ante , at 6 (quoting Morley Constr.
Co. , 300 U. S., at 191), the Court allows that “there might be
circumstances in which it would be proper for an appellate court to
initiate plain-error review,” ante, at 9; see also ante, at 5, n. 2. The Court’s mandate is limited to a
single class of cases—sentencing appeals, and then only when the
appeal is brought by the Government.

															   The Court justifies the asymmetry in its
decision by pointing to 18 U. S. C. §3742(b), which provides
that “[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.” According to the majority, “[i]t would severely
undermine Congress’ instruction were appellate judges to ‘sally
forth’ on their own motion to take up errors adverse to the
Government when the designated Department of Justice officials have
not authorized an appeal from the sentence the trial court
imposed.” Ante, at 7 (citation omitted).

															   The problem with this argument is that
§3742(b) does not apportion authority over sentencing appeals
between the Executive and Judicial Branches. By its terms, §3742(b)
simply apportions that authority within an executive
department. It provides that the “[t]he Government” may not
“prosecute” the appeal without approval from one of the listed
officials. It says nothing about the power of the courts to correct
error in the absence of a Government appeal. Had Congress intended
to restrict the power of the courts, the statute would not stop
“[t]he Government” from “prosecut[ing]” unauthorized appeals;
instead, it would stop “the Court of Appeals” from “deciding”
them.

															   The design that the Court imputes to the
drafters of §3742(b) is inconsistent with the text in another
important respect. Suppose that the District Court imposes a
sentence below the range set forth in the Federal Sentencing
Guidelines, and the Government files an authorized appeal on the
ground that the sentence is unreasonable. Suppose further that the
reviewing court discovers, to the surprise of both parties, that
the District Court made a further error by overlooking a mandatory
minimum to which the defendant was subject. The mandatory minimum
would raise the defendant’s sentence beyond what even the
Government had wanted. Under the majority’s theory, see ante, at 7, the reviewing court should not remand for
imposition of the mandatory minimum, since the decision to seek the
higher sentence belonged to the Government alone. But that
conclusion is plainly at odds with the text of the statute, which
imposes no limits on sentencing review once the named officials
have signed off on the appeal.

															   Section 3742(b)’s limited effect on
sentencing review implies that the statute was not designed to
prevent judicial encroachment on the prerogatives of the Executive.
It is more likely that Congress wanted to withhold from the
Executive the power to force the courts of appeals to entertain
Government appeals that are not regarded as sufficiently important
by the leadership of the Department of Justice. Allowing the courts
of appeals, in their discretion, to remedy errors not raised in a
cross-appeal in no way trenches on the authority of the Executive.
Section 3742(b) may have also been designed to serve the
Executive’s institutional interests. Congress may have wanted to
ensure that the Government maintained a consistent legal position
across different sentencing appeals. Or perhaps Congress wanted to
maximize the impact of the Government’s sentencing appeals by
giving high-level officials the authority to nix meritless or
marginal ones. These institutional interests of the Executive do
not undermine the Judiciary’s authority to correct unlawful
sentences in the absence of a Government appeal, and they do not
justify the Court’s decision today.

															IV

															   For the reasons given above, I
would hold that the courts of appeals enjoy the discretion to
correct error sU. S.onte for the benefit of nonappealing
parties. The Court errs in vacating the judgment of the Eighth
Circuit, and I respectfully dissent.[ Footnote 3 ] Footnote 1 The Court argues that petitioner’s original
sentence was neither so fundamentally unfair nor so harmful to our
system of justice as to warrant sU. S.onte correction by
the Court of Appeals. Ante, at 16, n. 9. But these
considerations, which may well support a conclusion that the Court
of Appeals should not have exercised its authority in this case,
cf. n. 3, infra , surely do not justify the Court’s
broad rule that sU. S.onte error correction on behalf of
the Government is inappropriate in all cases. Footnote 2 The Court finds it “hard to imagine a case in
which a district court, after a court of appeals vacated a criminal
sentence, could properly increase the sentence based on an error
the appeals court left uncorrected because of the cross-appeal
rule.” Ante, at 16, n. 8. Happily, we need not
imagine such cases, since they come before our courts every
day.

															   For examples, we have no further to look than
the sentencing cases remanded en masse following our recent
decision in United States v. Booker , 543 U. S. 220 (2005). In Booker ’s wake, it was common for newly convicted
defendants to appeal their sentences, claiming that they received
enhancements that they would not have received under the advisory
guidelines. Many of those cases were remanded for resentencing, and
some defendants wound up with even longer sentences on remand. See, e.g., United States v. Singletary , 458 F. 3d
72, 77 (CA2) (affirming a sentence lengthened by 12 months
following a Booker remand), cert. denied, 549 U. S. 1047 (2006); United States v. Reinhart , 442 F. 3d 857,
860–861 (CA5 2006) (affirming a sentence lengthened from
210 months to 235 months following a Booker remand).

															   These cases represent straightforward
applications of the cross-appeal rule: The Government had not
cross-appealed the sentence, so the reviewing court did not order
the defendant’s sentence lengthened. And yet the sentence was ultimately lengthened when the error was corrected on
remand. The Court fails to explain the conceptual distinction
between those cases and this one. If the Court permits sentencing
courts to correct unappealed errors on remand, why does it not
permit the courts of appeals to do the same on appeal? Footnote 3 Neither the parties nor our amicus have addressed whether, under the assumption that the Court of
Appeals enjoys discretion to initiate error correction for the
benefit of a nonappealing party, the Eighth Circuit abused that
discretion in this case. As framed by petitioner, the question
presented asked only whether the cross-appeal requirement is
subject to exceptions. Because the parties have not addressed the
fact-bound subsidiary question, I would affirm without reaching it.
See United States v. International Business Machines
Corp. , 517 U.
S. 843 , 855, n. 3 (1996).

Summary: The Supreme Court ruled that a Court of Appeals cannot increase a defendant's sentence on its own initiative without a government appeal or cross-appeal.