Due to the lapse in appropriations, Department of Justice websites will not be regularly updated. The Department’s essential law enforcement and national security functions will continue. Please refer to the Department of Justice’s contingency plan for more information.

Greenlaw v. United States - Brief (Merits)

Docket number: 
No. 07-330
Supreme Court Term: 
2007 Term
Court Level: 
Supreme Court

No. 07-330


In the Supreme Court of the United States






Solicitor General
Counsel of Record
Assistant Attorney General
Deputy Solicitor General
Assistant to the Solicitor
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217


Whether, where petitioner appealed his convictions and sentence as unreasonably long, but the government did not cross-appeal, the court of appeals erred when, after rejecting petitioner's arguments, it sua sponte va cated the judgment and remanded to the district court with directions to increase the length of petitioner's sen tence.

In the Supreme Court of the United States

No. 07-330







The opinion of the court of appeals (Pet. App. 1a-15a) is reported at 481 F.3d 601.


The judgment of the court of appeals was entered on March 23, 2007. A petition for rehearing was denied on May 10, 2007 (Pet. App. 28a). On July 27, 2007, Justice Alito extended the time within which to file a petition for a writ of certiorari to and including September 7, 2007, and the petition was filed on that date. The petition for a writ of certiorari was granted on January 4, 2008. The jurisdiction of this Court rests on 28 U.S.C. 1254(1).


The relevant statutory provisions and federal rules are reprinted in an appendix to this brief. App., infra, 1a-22a.


Following a jury trial in the United States District Court for the District of Minnesota, petitioner was con victed of numerous drug and firearms offenses, includ ing two separate violations of 18 U.S.C. 924(c)(1). The district court sentenced petitioner to a total of 442 months of imprisonment, to be followed by five years of supervised release. Petitioner appealed; the United States did not. The court of appeals rejected peti tioner's claims, but vacated and remanded for imposition of a higher sentence, holding that the district court's imposition of a ten-year, rather than a 25-year, consecu tive sentence for the second of petitioner's two Section 924(c)(1) convictions was erroneous. The court con cluded that, despite the government's failure to cross- appeal, it should correct the error because the error seriously affected substantial rights of the government and the public. Pet. App. 1a-15a, 19a. On remand, the district court sentenced petitioner to 622 months of im prisonment, to be followed by five years of supervised release. J.A. 109-110.

1. Petitioner and others were members of a gang known as the "Family Mob," which operated as a cohe sive drug trafficking organization that controlled the sale of crack cocaine in a neighborhood on the south side of Minneapolis. Pet. App. 2a-3a. From 1996 to 2003, the gang sold an estimated two to three kilograms of crack cocaine per week. Id. at 2a; J.A. 13, 27.

In connection with drug transactions, a member of the Family Mob "would carry a gun for security pur poses." Pet. App. 2a. Members also hid firearms at var ious locations throughout their territory and relayed those locations to each other, so that all members would have ready access to a gun when needed. Id. at 3a. In addition to providing protection from robbery and other threats, the Family Mob used firearms (as well as vio lence and intimidation generally) to prevent rival deal ers from moving into their territory. Ibid. As a result of the arrests and the execution of search warrants, the police recovered numerous weapons used by the Family Mob. See id. at 3a-4a.

2. On November 16, 2004, a federal grand jury in the District of Minnesota returned a sixth superseding in dictment against petitioner and others. J.A. 13, 27-37. Petitioner was charged on eight of the ten counts in the indictment: conspiracy to distribute in excess of fifty grams of crack cocaine, in violation of 21 U.S.C. 846 (Count 1); conspiracy to possess firearms in furtherance of a drug trafficking crime, in violation of 18 U.S.C. 924(o) (Count 2); carrying a firearm during and in rela tion to a crime of violence, in violation of 18 U.S.C. 924(c)(1) (Count 4); conspiracy to commit a violent crime (assault with a dangerous weapon) in aid of racketeer ing, in violation of 18 U.S.C. 1959(a)(6) (Count 5); com mitting a violent crime (assault with a dangerous weapon) in aid of racketeering, in violation of 18 U.S.C. 1959(a)(3) (Counts 6 and 8); and carrying a firearm dur ing and in relation to a drug trafficking crime, in viola tion of 18 U.S.C. 924(c)(1) (Counts 9 and 10). J.A. 27-36; see Pet. App. 4a.

Following a two-week trial (Pet. App. 4a), a jury found petitioner guilty on seven of the eight counts, in cluding two of the Section 924(c)(1) counts, Counts 4 and 10. The jury acquitted petitioner on the third Section 924(c)(1) count, Count 9. J.A. 38-45.

3. At sentencing, the government argued that the convictions on Counts 4 and 10 required mandatory con secutive sentences of five and 25 years, respectively, because Count 10 was "a second or subsequent convic tion" under 18 U.S.C. 924(c)(1)(C) and (2). See J.A. 51- 52, 61-62. The district court rejected the government's argument. The court held that Count 10 was not "a sec ond or subsequent conviction" based on its view that a conviction could not be second or subsequent when the two violations of Section 924(c)(1) are "charged in the same indictment." J.A. 59, 61-62; Pet. App. 8a.1 Be cause the jury had found that the firearm in Count 10 had been discharged, however, the court held that a ten-year consecutive sentence applied to that count un der 18 U.S.C. 924(c)(1)(A)(iii). J.A. 59-60; see J.A. 44-45.

Based on those rulings, the court sentenced peti tioner to a total of 442 months of imprisonment, to be followed by five years of supervised release. Pet. App. 18a-19a. Specifically, the court sentenced petitioner to 262 months on Count 1, 240 months on each of Counts 2, 6, and 8, and 36 months on Count 5, to be served concur rently with each other; 60 months on Count 4 (the first Section 924(c) conviction), to be served consecutively to the total imposed on Counts 1, 2, 5, 6, and 8; and 120 months on Count 10 (the second Section 924(c) convic tion), to be served consecutively to all other sentences. Id. at 18a.

4. Petitioner appealed, challenging both his convic tions and his sentence. See Pet. App. 2a; J.A. 79. Peti tioner contended that, instead of being sentenced to 442 months, he should have been sentenced to 15 years of imprisonment. After considering petitioner's claims, the court of appeals rejected them as without merit. See Pet. App. 4a-7a.

The government did not appeal or cross-appeal. Nor did the government request in briefing or at argument that the court vacate or increase petitioner's sentence based on any error by the district court. To the con trary, the government contended that the sentence should be affirmed. See J.A. 84-86. In response to peti tioner's challenge to the reasonableness of his sentence, however, the government did note, inter alia, that Sec tion 924(c)(1) provided for a 25-year, mandatory mini mum, consecutive sentence on Count 10, rather than the ten-year sentence the district court imposed. J.A. 83, 85.2

Despite the government's failure to file a cross-ap peal, the court of appeals sua sponte vacated petitioner's sentence and remanded with instructions that the dis trict court impose a new sentence that would include the statutory minimum 25-year sentence for Count 10. Pet. App. 8a-10a, 15a. The court of appeals noted that, al though the government had objected below to the dis trict court's failure to apply Section 924(c)(1)(C) and (2), the United States had not appealed the district court's sentence. Id. at 9a. The court stated, however, that it had discretion to raise and correct the error sua sponte under Federal Rule of Criminal Procedure 52(b) and this Court's decision in Silber v. United States, 370 U.S. 717, 718 (1962) (per curiam). Pet. App. 9a-10a & n.5.

Applying plain-error analysis, the court concluded that the sentence was directly contrary to the Court's decision in Deal v. United States, 508 U.S. 129 (1993). Pet. App. 8a-9a (quoting Deal, 508 U.S. at 132) ("[I]n the context of § 924(c)(1), we think it unambiguous that 'con viction' refers to the finding of guilt by a judge or jury that necessarily precedes the entry of final judgment of conviction."). Further, the court concluded that the dis trict court's failure to apply the statutory penalty for a second or subsequent conviction affected the substantial rights of the government and the public, and seriously affected the fairness, integrity, and public reputation of judicial proceedings. Id. at 9a-10a.3 The court therefore vacated the sentence and remanded for the district court "to impose the statutorily mandated consecutive mini mum sentence of 25 years under Count 10." Id. at 15a.

5. Petitioner filed a petition for rehearing and re hearing en banc in which he argued that the court of appeals should not have corrected the district court's error. Petitioner's principal argument was that the er ror had not seriously affected the fairness, integrity, or public reputation of judicial proceedings, and so relief was not appropriate under the fourth prong of plain-er ror review. J.A. 90-91, 93-96. Petitioner also contended that the panel "could have, and should have, elected to take the same route" as the Seventh Circuit in United States v. Rivera, 411 F.3d 864, cert. denied, 546 U.S. 966 (2005), which reasoned that "'[b]y deciding not to take a cross-appeal, the United States ensured that [the de fendant's] sentence cannot be increased.'" J.A. 95 (quot ing Rivera, 411 F.3d at 867) (alteration in original). Ac cordingly, petitioner contended that, "[b]ecause the gov ernment did not raise an appeal or cross-appeal, [peti tioner's] sentence should have been left alone." J.A. 95- 96. The court of appeals denied the petition without call ing for a response and without recorded dissent. Pet. App. 28a.

6. On August 28, 2007, the district court resentenced petitioner. The court imposed a 25-year consecutive sentence on Count 10 and left the sentences on the re maining counts unchanged. As a result, petitioner's to tal sentence was increased to 622 months of imprison ment, to be followed by five years of supervised release. See J.A. 103-104, 109-110. Neither party appealed that judgment.


I. Congress is constitutionally charged with defining the jurisdictional limits of the federal appellate courts. Congress can place limits not only on the general class of cases over which those courts have jurisdiction, but also when and under what conditions they can hear those cases. In Section 3742 of Title 18, Congress spe cifically defined and limited the jurisdiction of courts of appeals over sentencing errors in criminal cases. The text, structure, and history of Section 3742 compel the conclusion that the government's filing of a notice of appeal is a jurisdictional prerequisite for an appellate court to correct a sentencing error that aggrieves the government.

This Court has long recognized that courts of appeals lack jurisdiction over government appeals of final judg ments in criminal cases absent statutory provisions that expressly grant that authority. The Court has also con strued any such authority narrowly. Acting against this background understanding, Congress conferred appel late jurisdiction over sentencing errors in Section 3742, but only in certain limited circumstances. In particular, Congress separately delineated which types of sentenc ing errors defendants could appeal and which types of errors the government could appeal. This Court has held that this delineation of claims places a jurisdictional limitation on appellate jurisdiction. See United States v. Ruiz, 536 U.S. 622 (2002).

Section 3472 not only limits the types of errors that appellate courts have jurisdiction to correct, it also re quires that the particular party aggrieved by a sentenc ing error file a notice of appeal in order to vest jurisdic tion in the court of appeals to correct that error. As such, a notice of appeal by a defendant does not vest the court of appeals with jurisdiction to correct a sentencing error that aggrieves the government. Rather, the stat ute requires the government to file a notice of appeal to trigger court of appeals' jurisdiction to correct such an error. Section 3472's requirement that one of three high-ranking Department of Justice officials must per sonally approve any government sentencing appeal fur ther confirms that a defendant's decision to appeal does not vest the court of appeals with jurisdiction to correct an error that aggrieves the government. That conclu sion is bolstered by the structure of the statute, which provides for notices of appeal by defendants in a sepa rate subsection from its provision authorizing notices of appeals by the government. And, given the historical limitations on government appeals in criminal cases, the statute should not be read to vest courts of appeals with jurisdiction to correct errors that aggrieve the govern ment on the basis of only a defendant's appeal, in the absence of plain language doing so. The court of appeals thus lacked jurisdiction to order an increase in peti tioner's sentence.

II. Even if the Court concludes that a government notice of appeal is not a prerequisite to an appellate court's jurisdiction to correct a sentencing error that aggrieves the government, the filing of a timely notice of a cross-appeal is a mandatory claim-processing rule that the court has a duty to enforce when the rule is timely asserted. For over two hundred years, this Court has recognized that an appellate court cannot enlarge the judgment in favor of a party that fails to file a cross-ap peal. And the Federal Rules establish rigid time limita tions for the filing of a cross-appeal.

These long-established rules of practice are the type of inflexible rules that do not admit of judicial exception. Where, as here, the court would lack authority under the rules to extend the time for filing a notice of appeal, it would be counter-intuitive to allow it to excuse the filing of the notice of appeal altogether. The requirement of a timely cross-appeal serves the same interests as other claim-processing rules that this Court has recognized are mandatory: it promotes the interests of the orderly function of the judicial system, provides notice to oppos ing parties, and advances repose of issues. The rule must be enforced when it is timely asserted. Here, peti tioner timely asserted the government's failure to cross- appeal, and the court of appeals therefore should not have enlarged the judgment against him.

There is no warrant for creating an exception to this long-standing requirement in this case. Contrary to the apparent view of the court of appeals, nothing in the language or history of Rule 52(b) suggests that it cre ates an exception to the long-standing cross-appeal re quirement. Nor is there any reason to create an excep tion to the cross-appeal requirement in this case, under the rubric of Rule 52(b) or otherwise. Section 3742(b) charges three high-ranking Department of Justice offi cials with the prosecutorial discretion to determine whether the government should appeal an erroneous sentence. Those officials are institutionally better suit ed to protect, and fully capable of protecting, the inter ests of the government and the public with respect to such sentences. Appellate courts should not take on that role sua sponte.



Although the government did not appeal or cross- appeal from petitioner's sentence, the court of appeals, on petitioner's appeal, sua sponte ordered that the sen tence be increased. That action was error. First, the court of appeals lacked jurisdiction under 18 U.S.C. 3742 (2000 & Supp. V 2005) to rule that a sentence was too low when the government did not appeal or cross-ap peal. Second, and in any event, the modification of the judgment in favor of a non-appealing party violated a settled rule of appellate practice, which the court had a duty to enforce upon petitioner's timely invocation.


A. The Jurisdiction Of The Courts Of Appeals Is Limited To That Conferred By Statute

This Court's recent decisions "have undertaken to clarify the distinction between claims-processing rules and jurisdictional rules," explaining that "jurisdiction" refers to the limits on a court's personal jurisdiction over parties or its subject-matter jurisdiction over "classes of cases." Bowles v. Russell, 127 S. Ct. 2360, 2364-2365 (2007) (quoting Eberhart v. United States, 546 U.S. 12, 16 (2005) (per curiam)); Kontrick v. Ryan, 540 U.S. 443, 455 (2004); see John R. Sand & Gravel Co. v. United States, 128 S. Ct. 750, 753-754 (2008). Because "Congress decides what cases the federal courts have jurisdiction to consider," Bowles, 127 S. Ct. at 2365, the Court has observed that requirements that are created only by court-promulgated rules are not properly termed "jurisdictional." Ibid.; Kontrick, 540 U.S. at 452. At the same time, however, this Court has recognized that statutory requirements can have "jurisdictional sig nificance." Bowles, 127 S. Ct. at 2364. Finding jurisdic tional significance in statutory limits on the authority of the lower federal courts has underpinnings in Con gress's power under Article III of the Constitution to define and limit the power of those courts. See Kline v. Burke Constr. Co., 260 U.S. 226, 234 (1922) ("Only the jurisdiction of the Supreme Court is derived from the Constitution. Every other court created by the general government derives its jurisdiction wholly from the au thority of Congress."); Sheldon v. Sill, 49 U.S. (8 How.) 441, 448-449 (1850) ("Congress, having the power to es tablish the courts, must define their respective jurisdic tions. * * * Courts created by statute can have no ju risdiction but such as the statute confers.").

In Bowles, the Court enforced statutory limits on the jurisdiction of federal appellate courts. The district court had purported to reopen the time period for filing a notice of appeal for 17 days, in conflict with 28 U.S.C. 2107(c), which permitted a district court to reopen that period for only 14 days. 127 S. Ct. at 2363. Because the would-be appellant filed his notice of appeal outside the 14-day period allowed by the statute, this Court held that the court of appeals lacked jurisdiction over the appeal. In so holding, the Court recognized that the notion of subject-matter jurisdiction includes congres sional decisions not only about "whether federal courts can hear cases at all," but also "when, and under what conditions, federal courts can hear them." Id. at 2365.

In this case, Congress has provided for a specific scheme to govern sentencing appeals in the federal sys tem. See 18 U.S.C. 3742 (2000 & Supp. V 2005). The text, structure, and history of that statute confirm that it places jurisdictional limitations on the court of appeals to hear sentencing appeals, and that the filing of a notice of appeal by the government in a criminal case is neces sary to vest the court of appeals with jurisdiction to cor rect sentencing errors that result in a sentence being too low.

B. Congress Enacted Section 3742 To Provide Appellate Jurisdiction Over Sentencing Appeals In Criminal Cases In Certain Limited Situations

Although 28 U.S.C. 1291 and its predecessors granted appellate jurisdiction over final orders and deci sions of the district courts, this Court long ago con strued those jurisdictional provisions not to confer gen erally applicable jurisdiction over appeals by the gov ernment of final orders in criminal cases. See United States v. Sanges, 144 U.S. 310, 323 (1892) (interpreting the general grant of appellate jurisdiction to circuit courts of appeals to review a "final decision * * * in all cases" in the Act of Mar. 3, 1891, ch. 517, § 6, 26 Stat. 828, not to apply to government appeals in a criminal case). In so ruling, the Court emphasized the historic limitations on appellate authority over government ap peals in criminal cases. Id. at 312-323; Carroll v. United States, 354 U.S. 394, 400 (1957) (noting that "the history of federal appellate jurisdiction" supports the principle that "appeals by the Government in criminal cases are something unusual, exceptional, not favored"). In light of that unique history, the Court in Sanges reasoned, the statutory provision "giving the Circuit Courts of Ap peals in general terms appellate jurisdiction of criminal cases, says nothing as to the party by whom the writ of error may be brought, and * * * [i]t is impossible to presume an intention on the part of Congress to make so serious and far-reaching an innovation in the criminal jurisprudence of the United States." 144 U.S. at 323.4

For these same reasons, this "Court has long taken the view that the United States has no right of appeal in a criminal case, absent explicit statutory authority." United States v. Scott, 437 U.S. 82, 84-85 (1978) (citing Sanges, supra); United States v. Sisson, 399 U.S. 267 (1970) (dismissing government appeal for lack of juris diction because not authorized by 18 U.S.C. 3731 (1964 & Supp. V 1969), which authorized government appeals from certain types of decisions in criminal cases); United States v. Dickinson, 213 U.S. 92 (1909) (extend ing Sanges to certiorari review); see Carroll, 354 U.S. at 399 (noting that "since the jurisdictional statutes pre vailing at any given time are so much a product of the whole history of both growth and limitation of fed eral-court jurisdiction since the First Judiciary Act, 1 Stat. 73, they have always been interpreted in the light of that history and of the axiom that clear statutory mandate must exist to found jurisdiction").

Sentencing appeals were, historically, an area sub ject to particular restraint. Although the broad jurisdic tional grants over final judgments were deemed suffi cient to establish appellate jurisdiction over a defen dant's appeal of his sentence, the legal claims available to defendants on such appeals were extremely limited. See, e.g., Koon v. United States, 518 U.S. 81, 96 (1996) (noting that, "[b]efore the Guidelines system, a federal criminal sentence within statutory limits was, for all practical purposes, not reviewable on appeal"); Dorszyn ski v. United States, 418 U.S. 424, 431 (1974) (noting "the general proposition that once it is determined that a sentence is within the limitations set forth in the stat ute under which it is imposed, appellate review is at an end"). And, historically, there is no case in this Court that has authorized the government to appeal a sentence under general federal appellate jurisdiction.5

In 1984, in conjunction with its overhaul of federal sentencing, Congress considerably revised its approach to appellate review of sentences by providing appellate jurisdiction "for review of an otherwise final sentence" in specified circumstances. 18 U.S.C. 3742(a) and (b); see Sentencing Reform Act of 1984 (SRA), Pub. L. No. 98-473, Tit. II, Chap. II, § 213(a), 98 Stat. 2011. Con gress sought to "establish[] a limited practice of appel late review of sentences," while at the same time not unduly burdening courts of appeals by opening sen tences to reconsideration based on every possible claim. See, e.g., S. Rep. No. 225, 98th Cong., 1st Sess. 149-150, 154 (1983). Congress did so by defining the specific claims that could be maintained on appeal by defen dants, 18 U.S.C. 3742(a)(1)-(4), and those that could be maintained by the government, 18 U.S.C. 3742(b)(1)-(4).

In United States v. Ruiz, 536 U.S. 622 (2002), this Court held that Section 3742 delimits appellate jurisdic tion, in the strict meaning of that term. Id. at 626-628; see Koon, 518 U.S. at 96 (describing Section 3742 as pro viding "limited appellate jurisdiction to review federal sentences"). In Ruiz, this Court considered, in the con text of a defendant's sentencing appeal, "a question of statutory jurisdiction that potentially blocks our consid eration." 536 U.S. at 626. The Court observed that Sec tion 3742(a) delineates certain classes of sentencing er rors as to which a "defendant may file a notice of ap peal." Id. at 626-627 (quoting 18 U.S.C. 3742(a)). Based on that language, the Court concluded that appellate jurisdiction existed only if the defendant's appeal fit within one of the specified grounds. Id. at 627-628. The Court ultimately held that it had jurisdiction to reach the merits, because if the defendant's underlying claim were correct, the sentence would have been "imposed in violation of law," which is an express basis for appeal under 18 U.S.C. 3742(a)(1). Ruiz, 536 U.S. at 628. Ruiz thus establishes that the limitations on sentencing ap peals in Section 3742 are jurisdictional limits.6

C. Congress Conditioned Appellate Jurisdiction To Correct Errors In Criminal Sentences On The Filing Of A Notice Of Appeal By The Party Aggrieved By The Error

Just as Section 3742(a) defines permissible sen tencing appeals by defendants, Section 3742(b) delin eates certain types of sentencing errors for which "[t]he Government may file a notice of appeal." 18 U.S.C. 3742(b). Section 3742(b)(1) provides that the govern ment may appeal a sentence that "was imposed in viola tion of law." 18 U.S.C. 3742(b)(1). The statute further provides that "[t]he Government may not further prose cute such appeal without the personal approval of the Attorney General, the Solicitor General, or a deputy sol icitor general designated by the Solicitor General." 18 U.S.C. 3742(b).7

Under this Court's reasoning in Ruiz, courts of ap peals lack jurisdiction over government appeals in sen tencing cases that assert types of errors other than those delineated in Section 3742(b)(1). See Ruiz, 536 U.S. at 626-628. Here, the type of error at issue-a sen tence imposed in violation of law-is one type of error set forth in Section 3742(b)(1). Section 3742(b), how ever, does not confer free-floating jurisdiction on the courts to correct sentencing errors. Rather, the statute requires the government to file a notice of appeal to trig ger appellate jurisdiction to correct an error that harms the government. That textual conclusion is supported by the procedural prerequisites to the government's pursuit of appeal and the long tradition that government appeals in criminal cases must be "plainly provided by the Congress." Carroll, 354 U.S. at 400.8

Both the text and structure of Section 3742 point to the conclusion that the court of appeals' jurisdiction to correct a sentencing error that aggrieves the govern ment is vested only by the "fil[ing] of a notice of appeal" by the government. 18 U.S.C. 3742(b). Unlike more general statutory grants of appellate jurisdiction, such as 28 U.S.C. 1291, Section 3742 defines not only the classes of sentencing errors over which appellate courts have jurisdiction, but also establishes which particular party-the defendant or the government-can appeal which class of claim. The statute also expressly condi tions an appeal by either party on the requirement that the particular party "file a notice of appeal." 18 U.S.C. 3742(a) and (b). This requirement is reinforced by the structure of the provision, which includes one subsection for appeals by defendants and a separate subsection for appeals by the government. See ibid.

Reading the statute to require the government to file a notice of appeal in order for the court of appeals to have jurisdiction to review sentencing errors that ag grieve the government is further supported by Con gress's decision to entrust to the Attorney General and the Solicitor General (or his designated Deputy Solicitor General) the determination whether the government should pursue such appeals. See 18 U.S.C. 3742(b). The purpose of that provision is to ensure that the govern ment has made a considered decision to draw upon ap pellate resources before an appellate court considers sentencing rulings that harm the government's inter ests. The defendant's decision to pursue an appeal does not fulfill that purpose, and permitting appellate courts to notice sentencing errors that harm the government sua sponte would undermine it. The text and structure of the provision thus compel the conclusion that the party harmed by a sentencing error must invoke the court's jurisdiction by filing its own notice of appeal be fore the court of appeals has jurisdiction to award it any relief. Absent an appeal by the government, duly autho rized by the official designated by Congress, the court of appeals lacks jurisdiction. See FEC v. NRA Political Victory Fund, 513 U.S. 88 (1994) (dismissing petition for want of jurisdiction absent timely authorization of the certiorari petition by the Solicitor General).9

The background understanding that government appeals must be clearly and explicitly authorized by statute further confirms the jurisdictional character of the limitations in Section 3742(b). See, e.g., Scott, 437 U.S. at 84-85; Carroll, 354 U.S. at 399-405; Sanges, 144 U.S. at 323. "The history shows resistance of the Court to the opening of an appellate route for the Government until it was plainly provided by Congress, and after that a close restriction of its uses to those authorized by the statute." Carroll, 354 U.S. at 400. Although Congress could have provided more broadly for appellate jurisdic tion to review sentences, it instead narrowed the class of claims for which review was authorized and broke into separate subsections appeals by defendants and appeals by the government, tying each to the filing of "a notice of appeal." 18 U.S.C. 3742(a) and (b). Consistent with that distinction, the Senate Report evidences an under standing that, unless Congress authorized the govern ment to appeal, the appellate court "could only reduce excessive sentences but not enhance inadequate ones." See S. Rep. No. 225, supra, at 151; ibid. (noting that "it is clear that a system * * * in which sentence increase is possible as a consequence of sentence review initiated by the government[] is not objectionable on constitu tional grounds"). Indeed, the Report reflects the con cern that a system that would allow appellate courts to increase a sentence upon a defendant's appeal would "place[] an undesirable strain on the defendant's right to seek sentence review." Id. at 151 n.370. In the ab sence of statutory language plainly providing for appel late jurisdiction to correct errors that aggrieve the gov ernment based solely on the defendant's appeal, the Court should not find such jurisdiction.

That conclusion is buttressed by Section 3731, which similarly provides for party-specific appellate jurisdic tion in criminal cases. Section 3731 defines a set of cir cumstances in which the government may appeal. The statute authorizes appeals only "by the United States." 18 U.S.C. 3731 (2000 & Supp. V 2005). As numerous courts of appeals have recognized, "this statute does not provide for a cross-appeal by the defendant." United States v. Marasco, 487 F.3d 543, 546 (8th Cir. 2007); see, e.g., United States v. Hamilton, 46 F.3d 271, 279 n.8 (3d Cir. 1995) (Section 3731 "preclud[es] a defendant from filing a cross-appeal") United States v. Becker, 929 F.2d 442, 447 (9th Cir.) ("We lack jurisdiction to consider these expanded issues in this section 3731 appeal. A defendant may not file a cross appeal to a section 3731 interlocutory appeal."), cert. denied, 502 U.S. 862 (1991); United States v. Margiotta, 646 F.2d 729, 734 (2d Cir. 1981) ("We lack appellate jurisdiction" because cross- appeal "is unavailable with interlocutory appeals pursu ant to § 3731."). That approach reinforces the conclu sion that, in criminal appellate statutes, one party's ap peal does not give a court of appeals jurisdiction to re solve the other party's claims.10

Accordingly, this Court should conclude that the ab sence of a notice of appeal by the government under Sec tion 3742(b) is an event of jurisdictional significance, depriving the court of appeals of authority to review a claim that falls within the authorized bases for review under that provision. (The same conclusion applies in the reverse direction: a court of appeals has no jurisdic tion to grant sentencing relief in favor of a defendant if only the government has filed a notice of appeal.) Be cause the government did not file a notice of appeal un der Section 3742(b) in this case, the court of appeals therefore lacked jurisdiction to increase petitioner's sentence.11

D. The Rule-Based Time Limitations For The Filing Of A Notice Of Appeal And Cross-Appeal Are Not Jurisdic tional In Criminal Sentencing Appeals

Petitioner relies (Pet. 15-17) on this Court's decision in Bowles to suggest that the time limitations for taking a cross-appeal are jurisdictional. Although the filing of a notice of appeal by the government is necessary to vest jurisdiction in the court of appeals to correct sentencing errors that aggrieve the government, the timing dead line for the filing of such a notice of appeal or cross-ap peal is not a jurisdictional requirement. Unlike Section 2107, which Bowles held establishes jurisdictional dead lines for the filing of initial appeals in civil cases, no stat utory provision sets a time limitation on the filing of ap peals, or cross-appeals, of sentences in criminal cases. Rather, for criminal sentencing appeals, the time limits for both initial notices of appeal and notices of cross- appeal are prescribed only by the Federal Rules of Ap pellate Procedure. See Fed. R. App. 4(b)(1).

As this Court observed in Kontrick, "'[i]t is axiom atic' that such rules [of procedure] 'do not create or withdraw federal jurisdiction.'" 540 U.S. at 453 (quoting Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 370 (1978)). Kontrick involved Federal Rule of Bankruptcy Procedure 4004(a), which provides that an objection to a debtor's discharge "shall be filed no later than 60 days after the first date set for the meeting of creditors." A creditor filed a timely objection, but he subsequently amended his filing (outside the time limit) to add a new objection. See Kontrick, 540 U.S. at 448-449. The debt or responded on the merits without noting the untimeli ness of the new objection; only later did he raise the is sue, arguing that the timing rule was "jurisdictional" and therefore a claim of untimeliness could not be for feited. See id. at 450-451. This Court rejected that ar gument, holding that because Rule 4004 concededly did not affect the bankruptcy court's subject-matter juris diction, see id. at 454, it was merely an "inflexible claim- processing rule" that could "be forfeited if the party asserting the rule waits too long to raise the point," id. at 456.

This Court followed Kontrick in Eberhart, a case that involved Federal Rule of Criminal Procedure 33, which allows district courts to grant new trials but requires that "[a]ny motion for a new trial * * * must be filed within 7 days after the verdict or finding of guilty." Fed. R. Crim. P. 33(b)(2). Eberhart filed an untimely new-trial motion, and the government responded on the merits without addressing the issue of timing. See Eber hart, 546 U.S. at 13-14. This Court held that the govern ment had forfeited its objection to the untimeliness of the motion. See id. at 19. In so holding, it concluded that Rule 33 is not jurisdictional: "It is implausible that the Rules considered in Kontrick can be nonjurisdic tional claim-processing rules, while virtually identical provisions of the Rules of Criminal Procedure can de prive federal courts of subject-matter jurisdiction." Id. at 16.

The principle of Kontrick and Eberhart governs the time limitations in Federal Rule of Appellate Procedure 4(b)(1) at issue here. Indeed, in Bowles, this Court dis tinguished the timing requirements in Section 2107 from the timing rules in Kontrick and Eberhart on the very basis that the former was statutory and the latter were not. See Bowles, 127 S. Ct. at 2364-2365; see also U.S. Amicus Br. at 16 n.4, Bowles, supra (No. 06-5306) (not ing that "[c]riminal appeals are different" from civil ap peals because "no statute governs the timing of a defen dant's notice of appeal in criminal cases"). And since this Court's decision in Bowles, several courts of appeals have held that the time limitations for criminal appeals are not jurisdictional. See United States v. Garduño, 506 F.3d 1287, 1290-1291 (10th Cir. 2007); United States v. Martinez, 496 F.3d 387, 388-389 (5th Cir.) (per curiam), cert. denied, 128 S. Ct. 728 (2007).12

E. The Court Need Not Decide The Distinct Question Whe ther A Cross-Appeal Is Necessary To Confer Jurisdiction Under 28 U.S.C. 1291 To Award Relief In Favor Of An Appellee Because Appellate Jurisdiction Here Is Gov erned And Limited By 18 U.S.C. 3742

As a matter of general appellate practice, this Court has long recognized "two linked principles governing the consequences of an appellee's failure to cross-appeal." El Paso Natural Gas Co. v. Neztsosie, 526 U.S. 473, 479 (1999). In the absence of a cross-appeal, "an appellee may 'urge in support of a decree any matter appearing in the record, although his argument may involve an attack upon the reasoning of the lower court,' but may not 'attack the decree with a view either to enlarging his own rights thereunder or of lessening the rights of his adversary.'" Ibid. (citation omitted).

This Court applied that rule in Neztsosie in the con text of an interlocutory appeal in a civil case. In that case, the district court had entered an order granting in part and denying in part an injunction sought by various companies that had been sued in multiple tribal courts. In particular, the district court, relying on the doctrine of tribal-court exhaustion, denied the companies' re quests for preliminary injunctions, "'except to the ex tent' that [the Tribal-Court plaintiffs] sought relief in the Tribal Courts under the Price-Anderson Act." Neztsosie, 526 U.S. at 478. The companies appealed, and the court of appeals affirmed the portion of the dis trict court's order denying their request for preliminary injunctions. The court of appeals, however, also re versed the portion of the order enjoining the Tribal- Court plaintiffs from pursuing Price-Anderson Act claims in the Tribal Courts, even though those parties had not cross-appealed. Id. at 478-479. The court of appeals concluded that the significant interests in co mity to the Tribal Courts warranted creating an excep tion to the requirement for a cross-appeal. Id. at 478.

This Court disagreed. Neztsosie, 526 U.S. at 479- 480. The Court noted that the court of appeals appar ently viewed the cross-appeal requirement as "a 'rule of practice,' subject to exceptions, not an unqualified limit on the power of appellate courts." Id. at 480. Although presented with arguments that the rule was "an unquali fied bound on the jurisdiction of the courts of appeals," this Court declined to decide that question: "[w]e need not decide the theoretical status of such a firmly en trenched rule, however, for even if it is not strictly juris dictional * * * the 'comity considerations' invoked by the Court of Appeals to justify relaxing it are clearly inadequate to defeat the institutional interests in fair notice and repose that the rule advances." Ibid.13

The Court has even less need to decide the question left open in Neztsosie here than in Neztsosie itself. Ap pellate jurisdiction in Neztsosie was governed by 28 U.S.C. 1292(a)(1), which grants jurisdiction to courts of appeals over certain classes of interlocutory orders. See ibid. That provision, like the principal statute governing appellate jurisdiction, 28 U.S.C. 1291, grants jurisdiction over a broadly defined class of cases. See ibid. (pro viding that the "court of appeals * * * shall have juris diction from all final decisions of the district courts * * * except where a direct review may be had in the Supreme Court"). See also 28 U.S.C. 2107(a) ("no ap peal shall bring any judgment, order or decree in an action, suit or proceeding of a civil nature before a court of appeals for review unless notice of appeal is filed, within thirty days").14 In contrast, jurisdiction over sen tencing appeals is defined and delimited not by 28 U.S.C. 1291, but by the special jurisdictional provision for sentencing appeals, 18 U.S.C. 3742 (2000 & Supp. V 2005). See Ruiz, 536 U.S. at 626-628. The question here turns on whether Section 3742 requires the government to file its own notice of appeal (or cross-appeal) to vest courts of appeals with jurisdiction to correct sentencing errors that aggrieve the government. For the reasons explained above, Section 3742 does have jurisdictional force, and the absence of a notice of appeal filed by the government meant that the court of appeals had no ju risdiction to correct sentencing errors that aggrieved the government.


Even if the Court concludes that a defendant's notice of appeal of his sentence vests the court of appeals with jurisdiction to review errors in a sentence that ag grieved the government, the court of appeals erred in modifying the judgment in favor of the government in the absence of a cross-appeal. At a minimum, the re quirement of a cross-appeal is a mandatory claim-pro cessing rule that must be enforced where, as here, the appellant invokes the rule in a timely fashion. This Court has never recognized an exception to that inveter ate rule, and none is justified here.

A. Both The Need For A Cross-Appeal And The Deadlines For Filing One Are Mandatory Requirements

1. Although the Court in Neztsosie left open whether the cross-appeal requirement is "strictly juris dictional," see pp. 26-28, supra, the Court's language and reasoning emphasized the mandatory nature of the rule. In holding that the court of appeals had erred in recognizing an exception to that rule, the Court de scribed the rule as "firmly entrenched" and "inveterate and certain," observing that the Court had "repeatedly expressed" the requirement in "emphatic terms." Nez tsosie, 526 U.S. at 479-481 & n.3 (quoting Morley Constr. Co. v. Maryland Cas. Co., 300 U.S. 185, 191 (1937)). In addition, the Court stressed the long-stand ing, unqualified nature of the requirement. The Court explained that by 1796 it had recognized that a cross- appeal is required to obtain expanded relief. Id. at 479 (citing McDonough v. Dannery, 3 U.S. (3 Dall.) 188, 198 (1796)). And "in more than two centuries of repeatedly endorsing the cross-appeal requirement, not a single one of [the Court's] holdings has ever recognized an excep tion to the rule." Id. at 480.

Sixty years before Neztsosie, the Court likewise re versed a court of appeals' modification of a judgment in favor of a nonappealing party. See Morley, 300 U.S. at 185. In Morley, the district court rejected a surety's request for specific performance of its agreement with a contractor, but granted the surety relief on its equita ble exoneration claim. Id. at 189. On the contractor's appeal, and in the absence of a cross-appeal by the surety, the court of appeals expressed doubts about the merits of the surety's exoneration claim but remanded to the district court to modify its decree to award the surety specific performance. Id. at 190.

For the Court, the case turned on "[t]he power of an appellate court to modify a decree in equity for the ben efit of an appellee in the absence of a cross-appeal." Morley, 300 U.S. at 187. In resolving that question, the Court left little doubt that appellate courts have no such power: although an appellee may defend a judgment on any ground in the record, even if it "involve[s] an attack upon the reasoning of the lower court," "[w]hat [an ap pellee] may not do in the absence of a cross-appeal is to 'attack the decree with a view either to enlarging his own rights thereunder or of lessening the rights of his adversary.' * * * The rule is inveterate and certain." Id. at 191 (quoting United States v. American Ry. Ex press Co., 265 U.S. 425, 435 (1924)). Although the Court noted that the line between defending a judgment and seeking to modify it is not always sharply defined, ibid., it held that the court of appeals had provided the surety with "a new measure of relief," which it was not "at lib erty" to do in the absence of a cross-appeal by the surety. Id. at 193.

The holdings in Neztsosie and Morley are consistent with cases in which the Court has "repeatedly expressed the [cross-appeal] rule in emphatic terms," both with respect to review in this Court and in the courts of ap peals. Neztsosie, 526 U.S. at 481 n.3 (citing cases). In deed, as early as 1864, this Court described the rule as "settled" that "a party not appealing cannot take advan tage of an error in the decree committed against him self," and the Court refused to correct an acknowledged error. Chittenden v. Brewster, 69 U.S. (2 Wall.) 191, 196 (1865) ("If the appellees desired to avail themselves of this error in the decree, they should have brought a cross appeal."); see, e.g., Northwest Airlines, Inc. v. County of Kent, 510 U.S. 355, 364-365 (1994) ("A cross-petition is required * * * when the respondent seeks to alter the judgment below."); Alexander v. Cos den Pipe Line Co., 290 U.S. 484, 487 (1934) ("The defen dant alone petitioned for a review here. In this situation the plaintiff is not entitled to be heard in opposition to the parts of the decision of the Court of Appeals which were adverse to it."); American Ry. Express Co., 265 U.S. at 435; The Maria Martin, 79 U.S. (12 Wall.) 31, 40- 41 (1871) ("[W]here only one party appeals the other is bound by the decree in the court below, and he cannot assign error in the appellate court, nor can he be heard if the proceedings in the appeal are correct, except in support of the decree from which the appeal of the other party is taken."); McDonough, 3 U.S. (3 Dall.) at 198.

Although the Court in Neztsosie acknowledged that this Court had, in a few cases, "made statements in dic tum that might be taken to suggest the possibility of exceptions to the rule," see Neztsosie, 526 U.S. at 480- 481 n.3 (citing cases), it emphasized that none of those decisions had actually recognized an exception.15 For example, in Langnes v. Green, 282 U.S. 531 (1931), the Court stated that the requirement to file a cross-peti tion, if a respondent seeks to enlarge the relief obtained below, is a rule of practice that this Court need not fol low "if the court deems there is good reason to do so." Id. at 538. But, as the Court in Langnes explained, it was "not necessary to consider this rule of practice be cause the respondent offers no objection to the decree," but merely seeks to present alternative arguments "to sustain it." Ibid. Furthermore, the Court's statement in Langnes was premised on the Court not having previ ously denied in express terms "the power of the court to review objections urged by [a] respondent" who did not cross-petition. Ibid. As discussed above, however, that is the specific question (in the context of a cross-appeal) that the Court took up six years later in Morley, where it did expressly hold that appellate courts lack "[t]he power * * * to modify a decree in equity for the bene fit of an appellee in the absence of a cross-appeal." 300 U.S. at 187.

2. In addition to this Court's longstanding articula tion of the mandatory and inflexible nature of the filing of a cross-appeal in order for an appellee to increase its rights, the Federal Rules prescribe rigid time limita tions on the filing of such a notice. In criminal cases, if a defendant has filed a notice of appeal, the government must file its notice of cross-appeal within 30 days after "the filing of a notice of appeal by any defendant" (or within 30 days of the judgment or order being appealed, whichever is later). Fed. R. App. P. 4(b)(1)(B); see Fed. R. App. P. 28.1(b) (providing that, in cross-appeals, the "party who files a notice of appeal first is the appel lant").16 That time period may only be extended by the district court "[u]pon a finding of excusable neglect or good cause," and only for "a period not to exceed 30 days from the expiration of the time otherwise prescribed." See Fed. R. App. P. 4(b)(4); Fed. R. App. P. 26(b)(1) (providing that the court may not extend the time to file "a notice of appeal (except as authorized in Rule 4)").

B. Under This Court's Cases, Both The Filing Of A Cross- Appeal And The Filing Of A Timely Cross-Appeal Are Inflexible Rules That Must Be Enforced If Properly As serted

This Court's cases considering the nature of claim- processing rules demonstrate that the cross-appeal re quirement itself, as well as the relevant rule-based time limitations, are mandatory claim-processing rules. In both criminal and civil cases, this Court has repeatedly emphasized the inflexible, mandatory nature of claim- processing rules, recognizing that courts have a duty to enforce them when they are properly invoked.

1. In Carlisle v. United States, 517 U.S. 416 (1996), this Court addressed "whether a district court has au thority to grant a postverdict motion for judgment of acquittal filed one day outside the time limit prescribed by Federal Rule of Criminal Procedure 29(c)." Id. at 417-418. This Court answered that question in the nega tive. The Court observed that the governing rules were "plain and unambiguous." Id. at 421. The Court thus concluded that there was "simply no room" in the text of the rules for the granting of an untimely motion for judgment of acquittal, "regardless of whether the mo tion is accompanied by a claim of legal innocence, is filed before sentencing, or was filed late because of attorney error." Ibid.

The Court in Carlisle also rejected the argument that, despite the fact that the motion was untimely un der the federal rules, the district court could sua sponte enter a judgment of acquittal. The Court refused to de couple the time limits from a court's authority to rule on an issue: "'[i]t would be a strange rule' * * * 'which deprived a judge of power to do what was asked when request was made by the person most concerned, and yet allowed him to act without petition.'" Carlisle, 517 U.S. at 422 (quoting United States v. Smith, 331 U.S. 469, 474 (1947)); Smith, 331 U.S. at 475 ("We think that expiration of the time within which relief can openly be asked of the judge, terminates the time within which it can properly be granted on the court's own initiative."). The Court also rejected an effort to rely on the inherent supervisory power of courts, observing that, "[w]hatever the scope of [a court's] 'inherent power,' * * * it does not include the power to develop rules that circumvent or conflict with the Federal Rules." Carlisle, 517 U.S. at 426.

Similarly, in United States v. Robinson, 361 U.S. 220 (1960), this Court strictly enforced the rule-based time limitation for filing a notice of appeal in a criminal case. In so doing, the Court described the limitation as "man datory and jurisdictional." Id. at 224. The Court con cluded that the period could not be extended, "regard less of excuse," because the rules provided that the courts could not enlarge the time for taking an appeal. Id. at 229-230. The Court therefore held that the court of appeals lacked authority to hear the untimely appeal. Ibid.

Although this Court's subsequent decisions in Bowles, Kontrick, and Eberhart, cast doubt on Robin son's use of the term "jurisdictional" in the context of purely rule-based limitations, those cases confirm the mandatory nature of claim-processing rules. "[T]he central point of the Robinson case" remains valid: "when the Government objected to a filing untimely un der the [applicable rule], the court's duty to dismiss the appeal was mandatory." Eberhart, 546 U.S. at 18. As Eberhart explained, courts "must observe the clear lim its" of the Federal Rules "when they are properly in voked." Id. at 17. "These claim-processing rules thus assure relief to a party properly raising them, but do not compel the same result if the party forfeits them." Id. at 19; see Kontrick, 540 U.S. at 456-457.

2. The same analysis applies here as in Carlisle and Robinson. The rule that a court of appeals lacks author ity to enlarge a judgment in the absence of a cross-ap peal is an "inveterate and certain" one that this Court has repeatedly expressed in "emphatic terms" and has applied without exception for over two hundred years. Neztsosie, 526 U.S. at 479-481 & n.3 (quoting Morley, 300 U.S. at 191). Moreover, the Federal Rule provision governing the timing of a notice of cross-appeal in crimi nal cases is "plain and unambiguous." See Carlisle, 517 U.S. at 421. The time period provided cannot be ex tended for more than "30 days from the expiration of the time otherwise prescribed by this Rule 4(b)"-a time that has long since passed. Fed. R. App. 4(b)(1) and (4). These rules leave no room for creating a judicial excep tion. Nor do they permit a court of appeals to sua sponte notice an error and grant the same relief that it could if a party had made a timely cross-appeal. As this Court recognized in Carlisle and Smith, it would be odd for a court to have sua sponte authority, when the rules would mandate the denial of a motion for an extension of time to file a cross-appeal. Carlisle, 517 U.S. at 422; Smith, 331 U.S. at 474-475. Indeed, the rules expressly contemplate sua sponte extensions of time, but those too are limited to the 30-day window. See Fed. R. App. 4(b)(1) and (4).

Moreover, like other claim-processing rules, the cross-appeal requirement and the time limitations for complying with it are "meant to protect institutional interests in the orderly functioning of the judicial sys tem, by putting opposing parties and appellate courts on notice of the issues to be litigated and encouraging re pose of those that are not." Neztsosie, 526 U.S. at 481- 482; see Eberhart, 546 U.S. at 13, 19. These require ments have significant practical consequences. If a timely cross-appeal is filed, it puts the initial appellant on notice that if he continues to pursue his appeal, he is at risk of having the judgment against him expanded. In both civil and criminal cases, that knowledge can lead to settlement of the competing appeals. In addition, the deadlines ensure that the initial appellant is aware, be fore he files his opening brief and chooses the full nature of his arguments, whether the other party also intends to challenge a portion of the judgment. In this case, petitioner may well have pursued his appeal differently, or abandoned it altogether, if he had known within 30 days of filing his notice of appeal that he risked a fifteen-year increase in his already lengthy sentence.

C. Petitioner Is Entitled To Application Of The Cross- Appeal Requirement

As discussed above, the cross-appeal requirement is mandatory unless waived or forfeited by the party it would benefit. Here, petitioner timely raised the issue. The government had not appealed or cross-appealed, nor had it argued for an increase in petitioner's sentence in its brief or at oral argument. See p. 5 & note 2, supra. It was only after the court of appeals issued its opinion that petitioner had reason to raise the issue, which he did in a petition for rehearing.17 There, petitioner ar gued that "[b]ecause the government did not raise an appeal or cross-appeal, [his] sentence should have been left alone." J.A. 95-96. Although petitioner did not ex tensively develop the argument, he supported it with citation to the Seventh Circuit's decision in Rivera, 411 F.3d at 867, where the court, relying on Neztsosie, held that the cross-appeal requirement is mandatory, and he asked the court of appeals "to take the same route as Rivera." J.A. 95.

If petitioner were alleging error in the district court proceedings, a mere assertion of a claim and citation of a case would not be sufficient to require a court of ap peals to address it, see, e.g., United States v. Reed, 167 F.3d 984, 993 (6th Cir. 1999) (The settled appellate rule is that "issues adverted to in a perfunctory manner, un accompanied by some effort at developed argumenta tion, are deemed waived.") (quoting United States v. Zannino, 895 F.2d 1, 17 (1st Cir.), cert. denied, 494 U.S. 1082 (1990)). But here, the court of appeals itself had determined to increase his sentence sua sponte and had examined its authority to do so and cited the contrary authority in Rivera. Pet. App. 9a-10a n.5. In that con text, petitioner's objection provided a sufficient basis to alert the court of appeals to his reliance on the general rule of practice against modification of a judgment in favor of a party that had not cross-appealed. Because petitioner did not waive or forfeit the argument against increasing his sentence absent a cross-appeal by the government, the court of appeals was obligated to en force the rule and simply affirm his conviction and sen tence, rather than remand with directions to increase it.

D. There Is No Sound Basis For Recognizing An Exception To The Cross-Appeal Requirement In This Case

Even assuming that the cross-appeal requirement is not strictly jurisdictional and that sufficiently extraordi nary circumstances might justify an exception to the cross-appeal requirement and its time limitations, there is no warrant for recognizing such an exception in this case.

1. Federal Rule of Criminal Procedure 52(b) does not create an exception to the cross-appeal requirement

The court of appeals erred in concluding that Federal Rule of Criminal Procedure 52(b) granted it authority to increase petitioner's sentence in the absence of a cross- appeal by the government. Pet. App. 9a & n.5. Nothing in the language or history of Rule 52(b) purports to ad dress, let alone create an exception to, the cross-appeal requirement. Such a novel interpretation would effec tively create a blanket plain-error exception to the cross-appeal requirement in criminal cases, a result that is nowhere suggested in, and would be contrary to, this Court's decisions. See, e.g, Neztsosie, 526 U.S. at 480 ("Indeed, in more than two centuries of repeatedly en dorsing the cross-appeal requirement, not a single one of our holdings has ever recognized an exception to the rule."); Strunk v. United States, 412 U.S. 434, 436-437 (1973) ("On this record, it seems clear that petitioner was responsible for a large part of the 10-month delay which occurred and that he neither showed nor claimed that the preparation of his defense was prejudiced by reason of the delay. * * * However, in the absence of a cross-petition for certiorari, questioning the holding that petitioner was denied a speedy trial, the only ques tion properly before us for review is the propriety of the remedy.").

As a general matter, the adversary system contem plates that the parties will frame the issues for decision and the courts will function as neutral adjudicators of the matters presented. Departures from that model in which the appellate courts review the record and formu late their own issues for parties who do not appeal should be the rare exception to that rule. To the extent that courts may depart from the pure adversary model in the criminal justice system, the justification has usu ally been to protect a pro se litigant's rights. See Castro v. United States, 540 U.S. 375, 381-383 (2003). But as a general rule, "[o]ur adversary system is designed ar ound 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., joined by Thomas, J., concurring) ("I am frankly not enamored of any departure from our traditional ad versarial principles."). Nothing in Rule 52(b) can be read to displace that principle, especially against the well-established rule against awarding relief in favor of an appellee who has not cross-appealed.18

The court of appeals cited this Court's decision in Silber v. United States, 370 U.S. 717 (1962) (per curiam), in support of its application of plain-error review. Al though Silber supports an appellate court's discretion to recognize a plain error that has not been pressed by a party, it does not support a court's authority to do so in the absence of an appeal or cross-appeal by the party harmed by that error. Rather, the decision was ren dered on Silber's petition for a writ of certiorari, and Silber sought by that petition to have his conviction re versed. See Pet. Br., Silber, supra (No. 454). More gen erally, we are aware of no case in which the Court has granted relief to a party based on a finding of plain er ror when that party did not file a petition or cross-peti tion with the Court. At most, this Court has "suggested in passing that there might be occasions when, in a crim inal case, the Court might address a constitutional issue resolved in favor of a petitioner and not raised in a cross-petition for certiorari." See Neztsosie, 526 U.S. at 480 n.3 (emphasis added) (describing dicta in Strunk, 412 U.S. at 437). Here, of course, the error is not one of constitutional dimension.19

2. Sound policy reasons counsel against permitting dis trict courts to increase sentences absent a govern ment cross-appeal

Nor should this Court recognize an exception to the cross-appeal requirement in this case, whether under the rubric of Rule 52(b) or otherwise. Congress expres sly assigned to specific high-ranking officials within the Department of Justice the responsibility for determin ing whether the government, on behalf of the pub lic, should pursue a sentencing appeal. See 18 U.S.C. 3742(b) (requiring "the personal approval of the Attor ney General, the Solicitor General, or a deputy solicitor general designated by the Solicitor General" for the prosecution of any government sentencing appeal). Con gress thus entrusted the Executive Branch, not the courts, with the discretion to determine whether to seek the correction of sentencing errors that harmed the gov ernment. See S. Rep. No. 225, supra, at 151, 153 (recog nizing that the government serves as the representative of the public in deciding whether to appeal a sentence). In so doing, Congress necessarily understood that, as a result of the government's exercise of its prosecutorial discretion whether to pursue an appeal, not all sentenc ing errors would be corrected.

As with other exercises of prosecutorial discretion, the government's decision not to pursue a greater sen tence through appeal often will "involve[] a complicated balancing of a number of factors" that the Executive "is far better equipped than the courts" to evaluate. Heck ler v. Chaney, 470 U.S. 821, 831 (1985). The Executive's advantages accrue not only from institutional compe tence to weigh those factors, but also from constitutional function. See id. at 832 (noting prosecutorial decisions have "long been regarded as the special province of the Executive Branch, inasmuch as it is the Executive who is charged by the Constitution to 'take Care that the Laws be faithfully executed'") (quoting U.S. Const. Art. II, § 3); United States v. Nixon, 418 U.S. 683, 693 (1974) ("[T]he Executive Branch has exclusive authority and absolute discretion to decide whether to prosecute a case.").

That is no less true at the appellate stage than at the trial or charging stage. Indeed, Section 3742(b) ex pressly contemplates the exercise of discretion by the Executive Branch at some point after conviction and sentencing, but before prosecution of an appeal. This Court has recognized the legitimacy of, and significant interests promoted by, the Solicitor General's role in deciding which appeals and petitions for writs of certio rari the government will pursue. See, e.g., NRA Politi cal Victory Fund, 513 U.S. at 96; United States v. Provi dence Journal Co., 485 U.S. 693, 702-703 n.7 (1988); United States v. Mendoza, 464 U.S. 154, 160-161 (1984). That determination, which often involves "divers rea sons unrelated to the merits of a decision," Andres v. United States, 333 U.S. 740, 765 n.9 (1948) (Frankfurter, J., concurring), is not well suited to second-guessing by the courts.

Sentencing appeals may implicate precisely the sorts of interests that are best balanced by the Executive. Even if a particular sentence is judged erroneous, it may require an undue commitment of scarce criminal justice resources or appellate risk to seek to correct it on ap peal. And a remand for resentencing is not cost free. Ordinarily, a defendant must be transported back to the court, temporarily disrupting his imprisonment and re quiring the marshals to devote resources to the task. Once back in court, a defendant may take advantage of a resentencing to seek to reopen previously settled is sues or to raise new ones. Particularly in the changing and uncertain sentencing environment created by United States v. Booker, 543 U.S. 220 (2005), the ulti mate outcome of a resentencing proceeding may be un predictable and not necessarily favorable to the govern ment. The government may therefore elect to opt for finality rather than to extract the highest possible sen tence that might be obtained from an appeal.

3. Although the government has "substantial rights" under Rule 52(b), the decision whether to vindicate those rights belongs to the government

a. Petitioner contends (Pet. Br. 32-34; Pet. 12-13, 19- 20) that the government can never obtain relief under Rule 52(b) because the government has no "substantial rights" within the meaning of the Rule. But Rule 52(b) is not by its terms limited to claims by defendants. See Fed. R. Crim. P. 52(b) ("A plain error that affects sub stantial rights may be considered even though it was not brought to the court's attention."). Moreover, the argu ment that the government has no "substantial rights" is irreconcilable with the fact that subparagraphs (a) and (b) of Rule 52 both condition the granting of relief on whether the error affected "substantial rights." See Fed. R. Crim. P. 52(a) ("Any error, defect, irregularity, or variance that does not affect substantial rights must be disregarded."). As this Court explained in United States v. Olano, 507 U.S. 725 (1993), that language in volves the same inquiry under both subsections, the only difference is which party bears the burden of establish ing the requisite effect on "substantial rights." Id. at 734-735; see Powerex Corp. v. Reliant Energy Servs., Inc., 127 S. Ct. 2411, 2417 (2007) ("A standard principle of statutory construction provides that identical words and phrases within the same statute should normally be given the same meaning."). Accordingly, petitioner's reading of "substantial rights" would mean that the gov ernment not only could never obtain relief for forfeited errors, but that it also could never obtain relief for pre served errors. If the government has no "substantial rights," any and all errors harmful to the government's interests "must be disregarded" under Rule 52(a) be cause they by definition do not "affect substantial rights." Fed. R. Crim. P. 52(a). Nothing in the law or reason supports that view.

Further, every court of appeals to have addressed the issue has recognized that the government may ob tain relief for sentencing errors under Rule 52(b). See, e.g., United States v. Rodriguez, 938 F.2d 319, 321- 322 (1st Cir. 1991); United States v. Gordon, 291 F.3d 181, 193-194 (2d Cir. 2002), cert. denied, 537 U.S. 1114 (2003); United States v. Dickerson, 381 F.3d 251, 257 (3d Cir. 2004); United States v. Perkins, 108 F.3d 512, 517 (4th Cir. 1997); United States v. Barajas-Nunez, 91 F.3d 826, 830, 833 (6th Cir. 1996); United States v. Barnett, 410 F.3d 1048, 1050-1051 (8th Cir. 2005); United States v. Moyer, 282 F.3d 1311, 1319 (10th Cir. 2002); United States v. Clark, 274 F.3d 1325, 1326, 1328-1330 (11th Cir. 2001); United States v. Edelin, 996 F.2d 1238, 1244-1245 (D.C. Cir. 1993) (per curiam), cert. denied, 510 U.S. 1078 (1994); see also United States v. Castillo, 386 F.3d 632, 637-638 (5th Cir.) (recognizing availability of plain-error review for claims forfeited by the government, but hold ing that the claim failed under the fourth prong), cert. denied, 543 U.S. 1029 (2004); United States v. Vieke, 348 F.3d 811, 813-814 (9th Cir. 2003) (recognizing that "an erroneous sentence may be reviewed for plain error," but rejecting claim); United States v. Jackson, 207 F.3d 910, 917 (7th Cir.) ("while it is unusual for the govern ment to be arguing plain error in a criminal case, there is nothing to prevent its doing so"), vacated on other grounds, 531 U.S. 953 (2000).

The cases cited by petitioner (Pet. 13) are not to the contrary. See United States v. Filker, 972 F.2d 240, 242 (8th Cir. 1992); United States v. Posters 'N' Things Ltd., 969 F.2d 652, 662-663 (8th Cir. 1992), aff'd in dif ferent part, 511 U.S. 513 (1994); United States v. Gar cia-Pillado, 898 F.2d 36, 39-40 (5th Cir. 1990). None of those cases, all of which pre-date Olano, supra, decides whether the government has "substantial rights" under Rule 52(b). Instead, they each reviewed the govern ment's forfeited claim under a then-existing general standard of "manifest injustice," Garcia-Pillado, 898 F.2d at 39, "miscarriage of justice," Posters 'N' Things, 969 F.2d at 663, or "gross miscarriage of justice," Fil ker, 972 F.2d at 242. And as the Circuits that issued those decisions have recognized, the Olano standard has supplanted the analysis in those cases. See, e.g., Bar nett, 410 F.3d at 1051; Castillo, 386 F.3d at 637. More over, even under the standards applied, those courts did not purport to establish categorical rules that the gov ernment could not obtain relief on a forfeited sentencing claim, but instead simply applied the then-applicable standard to the facts before them. See, e.g., Filker, 972 F.2d at 242 (noting sentence difference was only fifteen months and that district court might impose same sen tence on remand); Garcia-Pillado, 898 F.2d at 37, 39 (noting that sentencing difference was limited to six months in deciding "under the circumstances of this case" that sentence was affirmed); see also Barnett, 410 F.3d at 1051 ("Furthermore, the sentencing errors up held in Filker and Posters 'N' Things * * * pale in comparison to the five year disparity at issue here.").

b. Although the government has substantial rights within the meaning of Rule 52(b), and the failure to ac cord the government those rights under sentencing stat utes may seriously affect the fairness, integrity, and public reputation of judicial proceedings, Johnson v. United States, 520 U.S. 461, 469-470 (1997), the govern ment is fully capable of determining whether to seek to vindicate its rights. The mandatory nature of Section 924(c)'s penalties does not divest the government of its discretion over the decision whether to appeal. Al though Congress prescribed a mandatory minimum sen tence for a second Section 924(c) conviction such as peti tioner's, see 18 U.S.C. 924(c)(1)(C) and (2), Congress statutorily assigned to the Executive Branch the discre tion to decide whether to appeal a sentence that "was imposed in violation of [that] law." 18 U.S.C. 3742(b). The Executive Branch is institutionally best suited to determine, and fully capable of determining, whether the incremental benefit in seeking to enforce the full extent of Section 924(c)'s penalties in a particular case warrants the investment of resources in an appeal and resentencing. A conclusion that the public interest is best served by devoting judicial and prosecutorial re sources to new cases, rather than seeking to increase sentences (often only marginally) in old ones, is entitled to respect from the appellate courts. There is no war rant in this situation for creating an unprecedented ex ception to the mandatory and inflexible rules requiring the notice of a timely cross-appeal.


The judgment of the court of appeals should be re versed in part, and the case remanded for re-imposition of the original sentence.

Respectfully submitted.

Solicitor General
Assistant Attorney General
Deputy Solicitor General
Assistant to the Solicitor




1 At the time of sentencing, the government objected to the court's ruling. See J.A. 62-63. Government counsel was unable to call to mind, however, this Court's decision in Deal v. United States, 508 U.S. 129 (1993), see J.A. 61-63, which held that, when a defendant is charged with more than one Section 924(c) offense in the same indictment and found guilty of multiple such offenses in the same trial, all but the first Section 924(c) conviction are treated as a "second or subsequent convic tion." See Deal, 508 U.S. at 132-137.

2 During oral argument, the court of appeals asked petitioner's counsel how petitioner avoided the 25-year mandatory minimum on Count 10. In so doing, however, the court noted that the government had not appealed the sentencing issue, and it elicited a concession from petitioner's counsel that the 442-month sentence was reasonable if the district court should have sentenced petitioner to a consecutive 25-year sentence on Count 10. In addressing the issue, government counsel noted that petitioner should have received a 25-year sentence on the count and that the government preserved that issue in the district court, but he noted that the government had not appealed the issue. Consistent with the government's brief, counsel argued that that fact supported the reasonableness of the district court's sentence and urged the court to reject the petitioner's appellate arguments. See C.A. Oral Argument (Sept. 26, 2006) <http://www.ca8.uscourts.gov/oralargs/ oaFrame.html> (Case No. 05-3391).

3 The court of appeals held that the district court also had committed plain error in holding that under United States v. Booker, 543 U.S. 220 (2005), it could not make a fact-based adjustment under the Guidelines where there was no jury finding on the fact. Pet. App. 10a n.6. The court of appeals, however, declined to correct that error. Id. at 10a-11a n.6. The court explained that it had corrected the Section 924(c)(1)(C) error "primarily because the error violates a Congressional mandate." Id. at 11a n.6. In contrast, because the Guidelines are advisory, "'the effect of the [Guidelines] error on the result in the district court is uncertain or indeterminate-[so] we would have to speculate' as to how the error affected the substantial rights of the parties." Ibid. (quoting United States v. Pirani, 406 F.3d 543, 553 (8th Cir.) (en banc), cert. denied, 546 U.S. 909 (2005)).

4 That does not mean that Section 1291 is entirely inapplicable to government appeals in criminal cases. The Court recognized in Carroll that the government might be able to invoke Section 1291 and the collateral order doctrine recognized in Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541 (1949), in qualifying instances. Carroll, 354 U.S. at 403 (noting that such instances are "very few"); see, e.g., United States v. Horn, 29 F.3d 754, 767-769 (1st Cir. 1994) (finding authority under heightened collateral order doctrine to hear government appeal of dis trict court's order awarding, pursuant to court's supervisory authority, costs and fees against the government in a criminal case). That recog nition does not detract from the general presumption against appeals by the government in criminal cases absent express statutory authori zation. Carroll, 354 U.S. at 400-401. And, in the context of criminal sentencing appeals, the specific provisions in Section 3742 would govern over any more general provision for appeals from final decisions of the district courts. See, e.g., Long Island Care at Home, Ltd. v. Coke, 127 S. Ct. 2339, 2348 (2007).

5 In 1970, Congress provided jurisdiction for sentencing appeals by the government and defendants in two limited instances, both of which were replaced by the general provisions in Section 3742. See Organized Crime Control Act of 1970 (OCCA), Pub. L. No. 91-452, § 1001(a), 84 Stat. 948 (enacting 18 U.S.C. 3576 (1970) (review of sen tences of "dangerous special offenders"), repealed by SRA § 212(2), 98 Stat. 1987; and 18 U.S.C. 3575 (1970) (sentencing of "dangerous special offenders"), repealed by SRA § 212(2), 98 Stat. 1987; Controlled Substances Act (CSA), Pub. L. No. 91-513, Tit. II, § 409(h), 84 Stat. 1268 (21 U.S.C. 849(h) (1970)) (review of sentences of "dangerous special drug offender[s]"), repealed by SRA § 219, 98 Stat. 2027. And even that limited appellate right prompted a constitutional challenge. In United States v. DiFrancesco, 449 U.S. 117 (1980), the Court held that authorization under former 18 U.S.C. 3576 of appeal by the United States of a criminal sentence did not violate the Double Jeopardy Clause.

6 This Court's decision in United States v. Booker, 543 U.S. 220 (2005), broadened the grounds for an appeal of a within-range sentence by allowing a party to challenge any sentence as "unreasonable." See, e.g., id. at 260 (noting that "the Act continues to provide for appeals from sentencing decisions (irrespective of whether the trial judge sen tences within or outside the Guidelines range in the exercise of his dis cretionary power under § 3553(a))"); id. at 261 (establishing review for "unreasonable[ness]"). Such appeals are best understood as arising under Section 3742(a)(1)'s provision for appeals on the ground that the sentence "was imposed in violation of law." Nothing in Booker casts doubt on this Court's holding in Ruiz that the delineation of the claims that may be pursued under Section 3742 is of a jurisdictional character.

7 As originally enacted, the provision required that "the Attorney General or the Solicitor General personally approve[] the filing of the notice of appeal." SRA § 213(a), 98 Stat. 2012 (18 U.S.C. 3742(b) (Supp. II 1984)). The language has since been modified to allow for the filing of a protective notice of appeal until "further prosecut[ion]" of the appeal is approved. 18 U.S.C. 3742(b).

8 Petitioner generally noticed an appeal "from the final judgment, conviction and sentence." J.A. 79. On appeal, he contended that the district court erred in not granting his motion for a downward depar ture and that the length of his sentence was unreasonable. See Pet. App. 6a-7a. In light of this Court's decision in Booker, see note 6, supra, his challenge to his sentence as "unreasonable" constitutes a claim under 18 U.S.C. 3742(a)(1), which authorizes a defendant to assert that his sentence was "imposed in violation of law." See, e.g., United States v. Mickelson, 433 F.3d 1050, 1052-1055 (8th Cir. 2006).

9 The earlier, more limited sentencing appeal statutes, see note 5, supra, similarly reflected a congressional view that, in the absence of express language to the contrary, an appeal by one party did not constitute an appeal by the other. In those earlier statutes, Congress provided that any appeal by the government of a sentence should be "deemed the taking of a review of the sentence and an appeal of the conviction by the defendant." OCCA § 1001(a), 84 Stat. 950 (18 U.S.C. 3576 (1970)) (emphasis added); see CSA § 409(h), 84 Stat. 1269 (21 U.S.C. 849(h) (1970)) (same). But Congress made clear that the "deem ing" did not run in the other direction: "a sentence may be made more severe only on review of the sentence taken by the United States and after hearing." OCCA § 1001(a), 84 Stat. 950-951 (18 U.S.C. 3576 (1970)); see CSA § 409(h), 84 Stat. 1269 (21 U.S.C. 849(h) (1970)) (same). In contrast to the earlier statutes, 18 U.S.C. 3742(a) and (b) do not provide that an appeal by any party will be deemed an appeal by another, and its very different text suggests otherwise. Similarly, because Section 3742 expressly distinguishes appeals by defendants and ones by the government, its structure indicates that a government appeal is required to remedy an error harmful to the government's interests. Congress therefore had no need to carry forward the lan guage expressly prohibiting the increase of a sentence absent a govern ment appeal.

10 In contrast, under the general language of Section 1291, which makes no reference to the filing of a notice of appeal by any particular party, it could be argued that, once one party files a timely notice of appeal, that notice of appeal vests the court of appeals with jurisdiction over the order appealed from in its entirety, at least as between the appellant and his opposing party-including portions of the order unfavorable to the non-appealing opposing party. See pp. 26-29, infra.

11 In certain circumstances, a defendant's notice of appeal alone can result in a broader remedy than the one the defendant expressly sought. For example, if a defendant successfully attacks some, but not all, of the counts of conviction on a multi-count indictment, the court of appeals may vacate the entire sentence on all counts so that the district court can consider the overall consequences for its sentencing plan, and it may need to do so in order for the sentence as a whole to be sufficient to satisfy the sentencing factors in 18 U.S.C. 3553(a) (2000 & Supp. V 2005). As many courts of appeals have recognized, in that situation, a district court on remand may impose a sentence on the remaining counts that is longer than that imposed at the initial sentencing on those particular counts, as long as the aggregate sentence on remand is not longer than the original aggregate sentence. See, e.g., United States v. Pimienta-Redondo, 874 F.2d 9, 12-16 (1st Cir.) (en banc), cert. denied, 493 U.S. 890 (1989); United States v. Vasquez, 85 F.3d 59, 61 (2d Cir. 1996); United States v. Campbell, 106 F.3d 64, 68 (5th Cir. 1997); United States v. Mancari, 914 F.2d 1014, 1018-1022 (7th Cir. 1990), cert. denied, 499 U.S. 924 (1991); United States v. Bennett, 363 F.3d 947, 955-956 (9th Cir.), cert. denied, 543 U.S. 950 (2004); United States v. Hicks, 146 F.3d 1198, 1201-1203 (10th Cir.), cert. denied, 525 U.S. 941 (1998); see also United States v. Townsend, 178 F.3d 558, 566-569 (D.C. Cir. 1999) (applying same principle after some, but not all, counts of conviction were vacated under 28 U.S.C. 2255). Those courts correctly reason that, when a defendant is found guilty on a multi-count indict ment, the sentence imposed typically constitutes a package that takes into account "a 'breadth of information' to ensure that "the punishment 'will suit not merely the offense but the individual defendant.'" Pimi enta-Redondo, 874 F.2d at 14 (quoting United States v. Wasman, 468 U.S. 559, 564 (1984)). That result, however, is not inconsistent with the conclusion that a court of appeals lacks jurisdiction to award relief to the government on a claim comprehended by Section 3742(b) when the government does not appeal. An appellate court's vacation of the entire judgment when a defendant has obtained relief on one count does not award relief on a claim that falls within Section 3742(b); it simply permits the district court to conduct resentencing on a clean slate (a consequence that is implicitly authorized by the defendant's attack on one aspect of an interrelated sentencing package).

12 In contrast to the absence of statutory time limitations with respect to sentencing appeals, Congress has prescribed a statutory deadline with respect to certain government appeals in criminal cases not at issue here. See 18 U.S.C. 3731 (2000 & Supp. V 2005) (providing that "all such cases shall be taken within thirty days after the decision, judg ment or order has been rendered and shall be diligently prosecuted"). Under this Court's decision in Bowles, that limitation is jurisdictional.

13 In Neztsosie, the United States as amicus curiae contended that the cross-appeal requirement was jurisdictional in nature. See 526 U.S. at 480; U.S. Amicus Br. at 20-22, Neztsosie, supra (No. 98-6). But the government in Neztsosie did not have the benefit of the Court's recent decisions holding that non-statutorily based timing requirements are not jurisdictional in the strict sense. See U.S. Amicus Br. at 9 n.2, 16 n.4, Bowles, supra (No. 06-5306).

14 See also 28 U.S.C. 2106 ("The Supreme Court or any other court of appellate jurisdiction may affirm, modify, vacate, set aside or reverse any judgment, decree, or order of a court lawfully brought before it for review, and may remand the cause and direct the entry of such appropriate judgment, decree, or order, or require such further proceedings to be had as may be just under the circumstances.").

15 As the Court explained, all but one of those cited statements concerned the related issue of the filing of a cross-petition for review in the Supreme Court, rather than "statements concerning the power of the courts of appeals." Neztsosie, 526 U.S. at 480 n.3.

16 The rule for cross-appeals in civil cases is similar. See Fed. R. App. P. 4(a)(3) ("If one party timely files a notice of appeal, any other party may file a notice of appeal within 14 days after the date when the first notice was filed, or within the time otherwise prescribed by this Rule 4(a), whichever period is later.").

17 Although petitioner missed the initial deadline for filing his rehearing petition, the court of appeals granted him leave to file out of time. Pet. App. 27a.

18 The Court has held that "district courts are permitted, but not ob liged, to consider sua sponte, the timeliness of a state prisoner's habeas petition." Day v. McDonough, 547 U.S. 198, 209 (2006). That action, however, does not inject a new legal basis for relief into the case that the aggrieved party did not raise. Moreover, Day permits a district court to raise an issue sua sponte that the State itself could raise by motion if the court invited such action. Ibid. Here, the time for filing a cross-appeal had long passed, and appellate courts are not in the habit of inviting the parties to take appeals that they have knowingly waived. In addition, Day conditioned such sua sponte action on "acccord[ing] the parties fair notice and an opportunity to present their positions," id. at 210; here, the court of appeals did not do so. Finally, Day noted that other factors bore on the district court's exercise of discretion, including prejudice to the habeas petitioner from the court's raising the limita tions issue sua sponte. Ibid. Here, if petitioner had been made aware of the prospect that his own appeal could have resulted in increasing his sentence, he may have withdrawn it altogether.

19 It is true that, in criminal cases, this Court has waived its rules gov erning the timing of petitions on the ground that "[t]he procedural rules adopted by the Court for the orderly transaction of its business are not jurisdictional and can be relaxed by the Court in the exercise of its discretion when the ends of justice so require." Schacht v. United States, 398 U.S. 58, 64 (1970); see Bowles, 127 S. Ct. at 2365 (recogniz ing same). But waiving the timing deadline is a far cry from waiving the requirement that a party file a petition at all.

Merits Stage Brief
Updated October 21, 2014