GREENLAW v. UNITED STATES

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237 OCTOBER TERM, 2007
Syllabus
GREENLAW v. UNITED STATES
certiorari to the united states court of appeals for
the eighth circuit
No. 07–330. Argued April 15, 2008—Decided June 23, 2008
Petitioner Greenlaw was convicted of seven drug and firearms charges
and was sentenced to imprisonment for 442 months. In calculating this
sentence, the District Court made an error. Overlooking this Court’s
controlling decision in Deal v. United States, 508 U. S. 129, 132–137,
interpreting 18 U. S. C. § 924(c)(1)(C)(i), and over the Government’s ob
jection, the District Court imposed a 10-year sentence on a count that
carried a 25-year mandatory minimum term. Greenlaw appealed urg
ing, inter alia, that the appropriate sentence for all his convictions was
15 years. The Government neither appealed nor cross-appealed. The
Eighth Circuit found no merit in any of Greenlaw’s arguments, but went
on to consider whether his sentence was too low. The court acknowl
edged that the Government, while it had objected to the trial court’s
error at sentencing, had elected not to seek alteration of Greenlaw’s
sentence on appeal. Nonetheless, relying on the “plain-error rule”
stated in Federal Rule of Criminal Procedure 52(b), the Court of Ap
peals ordered the District Court to enlarge Greenlaw’s sentence by 15
years, yielding a total prison term of 622 months.
Held: Absent a Government appeal or cross-appeal, the Eighth Circuit
could not, on its own initiative, order an increase in Greenlaw’s sen
tence. Pp. 243–255.
(a) In both civil and criminal cases, in the first instance and on appeal,
courts follow the principle of party presentation, i. e., the parties frame
the issues for decision and the courts generally serve as neutral arbiters
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. The cross-appeal rule,
pivotal in this case, is both informed by, and illustrative of, the party
presentation principle. Under that rule, it takes a cross-appeal to jus
tify a remedy in favor of an appellee. See McDonough v. Dannery, 3
Dall. 188. This Court has called the rule “inveterate and certain,” Mor-
ley Constr. Co. v. Maryland Casualty Co., 300 U. S. 185, 191, and has in
no case ordered an exception to it, El Paso Natural Gas Co. v. Neztsosie,
526 U. S. 473, 480. No exception is warranted here. Congress has
specified that when a United States Attorney files a notice of appeal

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238 GREENLAW v. UNITED STATES
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with respect to a criminal sentence, “[t]he Government may not further
prosecute [the] appeal without the personal approval of the Attorney
General, the Solicitor General, or a deputy solicitor general designated
by the Solicitor General.” 18 U. S. C. § 3742(b). This provision gives
the top representatives of the United States in litigation the prerogative
to seek or forgo appellate correction of sentencing errors, however plain
they may be. Pp. 243–246.
(b) The Eighth Circuit held that the plain-error rule, Fed. Rule Crim.
Proc. 52(b), authorized it to order the sentence enhancement sua sponte.
Nothing in the text or history of Rule 52(b), or in this Court’s decisions,
suggests that the plain-error rule was meant to override the cross
appeal requirement. In every case in which correction of a plain error
would result in modifying a judgment to the advantage of a party who
did not seek this Court’s review, the Court has invoked the cross-appeal
rule to bar the correction. See, e. g., Chittenden v. Brewster, 2 Wall.
191; Strunk v. United States, 412 U. S. 434. Even if it would be proper
for an appeals court to initiate plain-error review in some cases, sentenc
ing errors that the Government has refrained from pursuing would not
fit the bill. In § 3742(b), Congress assigned to leading Department of
Justice officers responsibility for determining when Government pursuit
of a sentencing appeal is in order. Rule 52(b) does not invite appellate
court interference with the assessment of those officers. Pp. 247–248.
(c) Amicus curiae, invited by the Court to brief and argue the case
in support of the Court of Appeals’ judgment, links the argument based
on Rule 52(b) to a similar argument based on 28 U. S. C. § 2106. For
substantially the same reasons that Rule 52(b) does not override the
cross-appeal rule, § 2106 does not do so either. Pp. 248–249.
(d) Amicus also argues that 18 U. S. C. § 3742, which governs appel
late review of criminal sentences, overrides the cross-appeal rule for
sentences “imposed in violation of law,” § 3742(e). Amicus’ construc
tion of § 3742 is novel and complex, but ultimately unpersuasive. At
the time § 3742 was enacted, the cross-appeal rule was a solidly
grounded rule of appellate practice. Congress had crafted explicit ex
ceptions to the cross-appeal rule in earlier statutes governing sen
tencing appeals, i. e., the Organized Crime Control Act of 1970 and the
Controlled Substances Act of 1970. When Congress repealed those
exceptions and enacted § 3742, it did not similarly express in the text
of § 3742 any exception to the cross-appeal rule. This drafting history
suggests that Congress was aware of the cross-appeal rule and framed
§ 3742 expecting that the new provision would operate in harmony with
it. Pp. 249–252.
(e) In increasing Greenlaw’s sentence sua sponte, the Eighth Circuit
did not advert to the procedural rules setting firm deadlines for launch

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ing appeals and cross-appeals. See Fed. Rules App. Proc. 3(a)(1),
4(b)(1)(B)(ii), 4(b)(4), 26(b). The strict time limits on notices of appeal
and cross-appeal serve, as the cross-appeal rule does, the interests of
the parties and the legal system in fair warning and finality. The time
limits would be undermined if an appeals court could modify a judgment
in favor of a party who filed no notice of appeal. In a criminal prosecu
tion, 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. Pp. 252–253.
(f) Nothing in this opinion requires courts to modify their current
practice in “sentencing package cases” involving multicount indictments
and a successful attack on some but not all of the counts of conviction.
The appeals court, in such cases, may vacate the entire sentence on all
counts so that the trial court can reconfigure the sentencing plan. On
remand, 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 sen
tence initially imposed. This practice is not at odds with the cross
appeal rule, which stops appellate judges from adding years to a defend
ant’s sentence on their own initiative. In any event, this is not a
“sentencing package” case. Greenlaw was unsuccessful on all his appel
late issues. The Eighth Circuit, therefore, had no occasion to vacate
his sentence and no warrant, in the absence of a cross-appeal, to order
the addition of 15 years to his sentence. Pp. 253–255.
481 F. 3d 601, vacated and remanded.
Ginsburg, J., delivered the opinion of the Court, in which Roberts,
C. J., and Scalia, Kennedy, Souter, and Thomas, JJ., joined. Breyer,
J., filed an opinion concurring in the judgment, post, p. 255. Alito, J.,
filed a dissenting opinion, in which Stevens, J., joined, and in which
Breyer, J., joined as to Parts I, II, and III, post, p. 256.
Amy Howe argued the cause for petitioner. With her on
the briefs were Kevin K. Russell, Pamela S. Karlan, Jeffrey
L. Fisher, Thomas C. Goldstein, and Kassius O. Benson.
Deanne E. Maynard argued the cause for the United
States. With her on the briefs were former Solicitor Gen
eral Clement, Assistant Attorney General Fisher, Deputy
Solicitor General Dreeben, and Jeffrey P. Singdahlsen.
Jay T. Jorgensen, by invitation of the Court, 552 U. S. 1135,
argued the cause and filed a brief as amicus curiae in sup

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240 GREENLAW v. UNITED STATES
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port of the judgment below. With him on the brief were
Virginia A. Seitz, Carter G. Phillips, Ileana Maria Ciobanu,
Elizabeth L. Howe, and HL Rogers.*
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 ar
guments, the Court of Appeals determined, without Govern
ment 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, con
trolled 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
*Jonathan D. Hacker and Pamela Harris filed a brief for the National
Association of Criminal Defense Lawyers as amicus curiae urging
reversal.

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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 traf
ficking 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) car
ries a mandatory minimum term of 5 years, if the firearm is
simply carried. § 924(c)(1)(A)(i). If the firearm is also dis
charged, 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), more
over, must run consecutively to “any other term of im
prisonment,” 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 be
cause 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 punish
ment 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 re

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jected the Government’s request for the 25-year minimum
prescribed in § 924(c)(1)(C) for “second or subsequent” of
fenses; instead, it imposed the 10-year term prescribed in
§ 924(c)(1)(A)(iii) for first-time offenses.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 appro
priate 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 Gov
ernment observed, because his second § 924(c) conviction
called for a 25-year (not a 10-year) mandatory minimum con
secutive 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 Dis
trict Court’s error by pursuing its own appeal, the Gov
ernment 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
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.

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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 in
structed the District Court “to impose the [statutorily man
dated] 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 in
structed by the Court of Appeals, the District Court in
creased 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 unsuccess
fully challenges his sentence as too high, may a court of ap
peals, on its own initiative, increase the sentence absent a
cross-appeal by the Government? In response, the Govern
ment “agree[d] with [Greenlaw] that the court of appeals
erred in sua sponte 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. 1087 and 1135 (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

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have approved departures from the party presentation prin
ciple 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).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 re
lief.” Id., at 386 (Scalia, J., concurring in part and concur
ring in judgment).3 As cogently explained:
“[Courts] do not, or should not, sally forth each day look
ing 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. Sam
uels, 808 F. 2d 1298, 1301 (CA8 1987) (R. Arnold, J., con
curring 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
2 Because this case does not present the issue, we take no position on
whether correction of an error prejudicial to a nonappealing criminal de
fendant might be justified as a measure to obviate the need for a collateral
attack. See post, at 261–262 (Alito, J., dissenting).
3 Cf. Kaplan, Civil Procedure—Reflections on the Comparison of Sys
tems, 9 Buffalo L. Rev. 409, 431–432 (1960) (U. S. system “exploits the
free-wheeling energies of counsel and places them in adversary confronta
tion 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”).

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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 “jurisdic
tional,” 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 Car
rier, 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 charac
terizations. 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 re
quirement 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 in
terests 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 hold
ings 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 in
stances 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

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respect to a sentence qualifying for review, “[t]he Govern
ment may not further prosecute [the] appeal without the per
sonal approval of the Attorney General, the Solicitor Gen
eral, 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 Govern
ment, on behalf of the public, should seek a sentence higher
than the one imposed. It would severely undermine Con
gress’ instruction were appellate judges to “sally forth” on
their own motion, cf. supra, at 244, to take up errors adverse
to the Government when the designated Department of Jus
tice officials have not authorized an appeal from the sentence
the trial court imposed.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 compara
ble 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 sen
tencing errors, however plain they may be. That measure
should garner the Judiciary’s full respect.
4 The dissent reads § 3742(b) not as a restraint on sua sponte error cor
rection by appellate courts, but simply as apportioning “authority within
an executive department.” Post, at 266; see post, at 267 (“[P]erhaps Con
gress wanted to . . . giv[e] high-level officials the authority to nix meritless
or marginal [sentencing appeals].”). A statute is hardly needed to estab
lish 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 Con
gress, having lodged discretion in top-ranking Department of Justice offi
cers, meant that discretion to be shared with more than 200 appellate
judges.

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III
A
In ordering the District Court to add 15 years to Green
law’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 consid
ered even though it was not brought to the court’s atten
tion.” 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 Advi
sory Committee’s Notes on Fed. Rule Crim. Proc. 52, 18
U. S. C. App., p. 1664 (describing Rule 52(b) as “a restate
ment of existing law”).
Nor do our opinions support a plain-error exception to the
cross-appeal rule. This Court has indeed noticed, and or
dered 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 modi
fication 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

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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 prem
ise 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 pur
suing would not fit the bill. Heightening the generally ap
plicable party presentation principle, Congress has provided
a dispositive direction regarding sentencing errors that ag
grieve the Government. In § 3742(b), as earlier explained,
see supra, at 245–246, Congress designated leading Depart
ment of Justice officers as the decisionmakers responsible for
determining when Government pursuit of a sentencing ap
peal is in order. Those high officers, Congress recognized,
are best equipped to determine where the Government’s in
terest lies. Rule 52(b) does not invite appellate court inter
ference 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 . . . law

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fully 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 require
ments 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 differ
ent 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. Con
gress 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) (2000 ed. and Supp. V) (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 re
mand only where a departure from the Federal Sentencing
Guidelines harms the appellant. In contrast, amicus em
phasizes, § 3742(f)(1)—the provision controlling sentences

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250 GREENLAW v. UNITED STATES
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imposed “in violation of law” and Guidelines application er
rors—contains no such appellant-linked limitation. The in
ference 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 Guidelines 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,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 244–245. 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]
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 . . . .”).

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sentence may be made more severe,” OCCA provided, “only
on review . . . taken by the United States.” Id., at 950–951.6
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 excep
tion 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 noth
ing for a court to infer. We therefore see no reason to read
the current statute in the inventive manner amicus pro
poses, inferring so much from so little.
Amicus’ reading of § 3742, moreover, would yield some
strange results. We note two, in particular. Under his con
struction, § 3742 would give with one hand what it takes
away with the other: Section 3742(b) entrusts to certain
Government officials the decision whether to appeal an ille
gally low sentence, see supra, at 245–246; 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 incon
sistent. Cf. Western Air Lines, Inc. v. Board of Equaliza
tion 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 applica
tions of the Sentencing Guidelines, controlled by § 3742(f)(1),
and erroneous departures from the Guidelines, covered by
6 The Controlled Substances Act of 1970, § 409(h), 84 Stat. 1268–1269,
contained matching instructions applicable to “dangerous special drug of
fender[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.

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§ 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.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 presenta
tion principle served by that rule. Federal Rule of Appel
late 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.) Comple
menting 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.” (Empha
sis 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 be
yond 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
7 In rejecting the interpretation of §§ 3742(e) and (f) proffered by ami
cus, 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. 338, 361–362 (2007) (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 382, 383 (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. 85, 116
(2007) (Thomas, J., dissenting) (the Booker remedial opinion, whatever it
held, cannot be followed).

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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 dur
ing 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 noth
ing 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 “sentenc
ing package cases.” Those cases typically involve multi
count 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 ensure 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 particu
lar 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.

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254 GREENLAW v. UNITED STATES
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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 add
ing 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.8
This is not a “sentencing package” case. Greenlaw was
unsuccessful on all his appellate issues. There was no occa
sion for the Court of Appeals to vacate his sentence and no
warrant, in the absence of a cross-appeal, to order the addi
tion of 15 years to his sentence.9
8 The dissent suggests that our reading of the cross-appeal rule is anom
alous 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 264–265, 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 defend
ants’ appeals, the dissent asks? Post, at 265, n. 2. In those cases, defend
ants invited and received precisely the relief they sought, and the Sixth
Amendment required. Neither the cross-appeal rule nor default and for
feiture had any role to play.
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 259. Does this case qualify
as the “rare” exception to the “strong rule of practice” the dissent advo

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Cite as: 554 U. S. 237 (2008) 255
Breyer, J., concurring in judgment
* * *
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.
Justice Breyer, concurring in the judgment.
I agree with Justice Alito that the cross-appeal require
ment 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 sua sponte increasing petitioner’s sentence. Our prece
dent precludes the creation of an exception to the cross
appeal requirement based solely on the obviousness of the
cates? 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 262, 264, so harmful to our system of justice, see post, at 262, 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 268, n. 3, the dissent would simply “entrust
the decision to initiate error correction to the sound discretion of the
courts of appeals,” post, at 256. 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 244 (internal quota
tion marks omitted). The better answer, consistent with our jurispru
dence, as reinforced by Congress, entrusts “the decision [whether] to initi
ate error correction” in this matter to top counsel for the United States.
See supra, at 246.

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lower court’s error. See, e. g., Chittenden v. Brewster, 2
Wall. 191, 195–196 (1865). And I cannot see how the inter
ests of justice are significantly disserved by permitting peti
tioner’s release from prison at roughly age 62, after almost
37 years behind bars, as opposed to age 77.
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 re
quirement as a rule of appellate practice. It is akin to the
rule that courts invoke when they decline to consider argu
ments 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. Ab
sent congressional direction to the contrary, and subject to
our limited oversight as a supervisory court, we should en
trust 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 ad
dress 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 rec
ognize any exceptions to the cross-appeal requirement when
the defendant appeals his sentence, it does not decide that
question. See ante, at 245. 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

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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 ap
pellee is contingent on a duly filed cross-appeal. The major
ity’s contention that “[o]ur own opinions contain statements
supporting” the “ ‘jurisdictional’ ” characterization of the re
quirement, ante, at 245, relies on a misreading of that prece
dent. The Court may have previously characterized the
cross-appeal requirement as limiting “ ‘[t]he power of an ap
pellate 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 juris
diction, and a rule can be inflexible without being jurisdic
tional. See Eberhart v. United States, 546 U. S. 12, 19 (2005)
(per curiam).
The jurisdiction of the courts of appeals is fixed by Con
gress. See Bowles v. Russell, 551 U. S. 205, 212 (2007);
Ankenbrandt v. Richards, 504 U. S. 689, 698 (1992) (“ ‘[T]he
judicial power of the United States . . . is (except in enumer
ated instances, applicable exclusively to this Court) depend
ent for its distribution and organization, and for the modes
of its exercise, entirely upon the action of Congress’ ” (quot
ing 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 par
ties, 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

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258 GREENLAW v. UNITED STATES
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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 nonappeal
ing 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 de
fendant 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 author
ity for the Government to “file a notice of appeal” to review
unlawful sentences. E. g., § 3742(b)(1). The statute condi
tions the Government’s authority to further prosecute its ap
peal 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) (sen
tences set aside as “too low” if Government filed), no such
limitation appears in § 3742(f)(1). That paragraph requires

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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 252; see also Neztsosie,
supra, at 480. One might add that the cross-appeal require
ment also serves a third interest: the appellate court’s inter
est 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 unyield
ing 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 there
after 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

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from the parties would be of assistance to the court, the solu
tion to such a problem is not to eliminate the courts of ap
peals’ authority to correct egregious errors. Rather, the ap
propriate response is for the court of appeals to request
supplemental briefing or—if it deems that insufficient—sim
ply to refuse to exercise its authority. Cf. Irizarry v.
United States, 553 U. S. 708, 716 (2008). 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 de
fendant] 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 253 (citing Fed. Rule App. Proc. 42(b)). But the
Court does not explain how a notice of cross-appeal, a boiler
plate document, helps the defendant “tailor his arguments.”
Whether the cross-appeal rule is ironclad, as the Court be
lieves, 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. Rule 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 ap
pellee. See Brief for United States 5.
Orderly Briefing. I do not doubt that adversarial brief
ing improves the quality of appellate decisionmaking, but it

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hardly follows that appellate courts should be denied the au
thority to correct errors that seriously prejudice nonappeal
ing 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 appro
priate 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 discretion
ary 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 ad
dress 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 se
ries of additional state and district court proceedings before
reviewing the merits of the petitioner’s claim”); Munaf v.
Geren, 553 U. S. 674, 691 (2008) (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

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262 GREENLAW v. UNITED STATES
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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., Riv
erside Cty., 464 U. S. 501, 507 (1984); New York Central
R. Co. v. Johnson, 279 U. S. 310, 318 (1929), and it has justi
fied departures from our traditional adversary framework in
other contexts. The Court mentions one of those contexts,
see ante, at 243–244 (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 247, 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, in
tegrity or public reputation of judicial proceedings” may
sometimes justify a departure from the traditional adversar
ial framework of issue presentation.
Perhaps the closest analogue to the cross-appeal require
ment is the rule of appellate practice that restrains review
ing courts from addressing arguments that the parties have

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not made. Courts typically invoke this rule to avoid resolv
ing a case based on an unaired argument, even if the ar
gument 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., Santi
ago, 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 orderli
ness and efficiency against the need for the greatest possible
accuracy in judicial decisionmaking”). Because the prejudi
cial effect of the error and the impact of error correction on
judicial resources are matters best determined by the re
viewing court, the court’s decision to go beyond the argu
ments made by the parties is committed to its sound discre
tion. See United States Nat. Bank of Ore., supra, at 448
(reviewing an appellate court’s decision to address an argu
ment sua sponte for abuse of discretion).
This authority provides a good model for our decision in
this case. The Court has not persuaded me that the inter
ests at stake when a reviewing court awards a nonappealing
party additional relief are qualitatively different from the

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264 GREENLAW v. UNITED STATES
Alito, J., dissenting
interests at stake when a reviewing court raises an issue
sua sponte. 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 adver
sarial tradition. I would recognize the same possibility
here. And just as reviewing courts enjoy discretion to de
cide 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.1
III
The approach I advocate is not out of step with our prece
dent. The Court has never decided whether the cross
appeal requirement is “subject to exceptions [or] an unquali
fied 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 ibid., 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.
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
sua sponte correction by the Court of Appeals. Ante, at 254–255, 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 sua sponte
error correction on behalf of the Government is inappropriate in all cases.

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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 dis
covery (by dint of appellate review) that its first sentence
was based on an error of law? 2
Even today, the Court refuses to decide whether the
cross-appeal requirement admits of exceptions in appro
priate cases. While calling the rule “ ‘inveterate and cer
tain,’ ” ante, at 245 (quoting Morley Constr. Co., 300 U. S., at
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 in
crease the sentence based on an error the appeals court left uncorrected
because of the cross-appeal rule.” Ante, at 254, 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 re
ceived enhancements that they would not have received under the advi
sory 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. de
nied, 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 review
ing 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 cor
rect unappealed errors on remand, why does it not permit the courts of
appeals to do the same on appeal?

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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 248; see also ante, at 244, 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 point
ing to 18 U. S. C. § 3742(b), which provides that “[t]he Gov
ernment may not further prosecute [the] appeal without the
personal approval of the Attorney General, the Solicitor Gen
eral, 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 246 (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 depart
ment. It provides that “[t]he Government” may not “prose
cute” the appeal without approval from one of the listed offi
cials. 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 sen
tence 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

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Alito, J., dissenting
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 de
fendant’s sentence beyond what even the Government had
wanted. Under the majority’s theory, see ante, at 246, 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 con
clusion is plainly at odds with the text of the statute, which
imposes no limits on sentencing review once the named offi
cials have signed off on the appeal.
Section 3742(b)’s limited effect on sentencing review im
plies 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 Exec
utive the power to force the courts of appeals to entertain
Government appeals that are not regarded as sufficiently im
portant 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 inter
ests. Congress may have wanted to ensure that the Gov
ernment maintained a consistent legal position across differ
ent 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 Exec
utive 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 sua sponte

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for the benefit of nonappealing parties. The Court errs in
vacating the judgment of the Eighth Circuit, and I respect
fully dissent.3
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 sub
sidiary question, I would affirm without reaching it. See United States
v. International Business Machines Corp., 517 U. S. 843, 855, n. 3 (1996).