Sentencing jurisprudence has been continuously evolving since the establishment of the United States Sentencing Guidelines (“the Guidelines”). The Supreme Court has worked to limit the influence of the Guidelines while lower courts have attempted to apply them. One particular area in flux is appellate review of sentencing. Under the now-advisory Guidelines, courts of appeals are still expected to review sentences. But the Supreme Court has curtailed appellate court authority by repeatedly emphasizing that lower courts have discretion in sentencing, even when courts impose sentences outside the Guidelines. Continuing its efforts to clarify the scope of review, the Court recently held in Greenlaw v United States that an appellate court cannot increase a defendant’s sentence when the defendant has appealed and the government has neither appealed nor cross-appealed.

Despite Greenlaw, appellate courts have continued to issue orders resulting in increased sentences, even when they do not directly impose the increases themselves. Mechanisms used to implement such increases include reinstating previously imposed sentences, remanding to the district court with the requirement of providing an additional justification for the sentence imposed, and remanding for recalculation of the Guidelines range—all without a government appeal. While these actions do not violate the express holding of Greenlaw, they can lead to the same troubling result that Greenlaw aims to avoid: the imposition of unanticipated sentence increases on a defendant’s appeal.

These cases call for an inquiry into whether Greenlaw prohibits all forms of sentence increases in the absence of a government appeal, rather than only those increases that appellate courts directly impose sua sponte. Further, language from Greenlaw introduces uncertainty as to district courts’ ability to increase sentences under similar circumstances, such as when resentencing follows a defendant’s successful appeal.

These issues implicate various legal principles governing limitations on review authority, including the cross-appeal rule and the doctrines of waiver and forfeiture. These issues also raise questions about the power of the Guidelines themselves. Whether courts can impose sua sponte increases may even directly influence a defendant’s decision to appeal. If an appeal might result in an increased sentence, a defendant will be discouraged from bringing appeals based on otherwise-valid errors when there is the potential for exposing unaddressed error in the defendant’s favor. However, there is some question as to how the creation of this disincentive should be balanced against the judiciary’s interest in accurately applying the Guidelines.

While Greenlaw’s formal holding only prevents appellate courts from ordering an increase sua sponte, this Comment advocates a functionalist interpretation of Greenlaw as necessary to fully restrict sentencing authority in the way the Court has implied. Further, this Comment argues that under a functionalist interpretation, various appellate court actions violate Greenlaw.

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