Can a federal court of appeals increase an appellant’s sentence?

Doug Berman at Sentencing Law and Policy has this interesting post about a recent First Circuit sentencing appeal. The defendant appealed his 405 month sentence, but he not only lost the appeal but faces an even longer sentence.

As the court put it:

Sometimes it’s better to quit while you’re ahead. The district judge twice conducted plea colloquies and thrice imposed sentences for Carlos Sevilla-Oyola (“Sevilla”), each one shorter than the last. Still dissatisfied, Sevilla asks us for another bite at the sentencing apple before a different district judge. To support his claim before this court, Sevilla says the district judge lacked authority for actions taken after entry of the first sentence, and flaws in the initial plea colloquy warrant vacation of the first judgment. Alternatively, he says that even if the judge’s later actions were authorized, they were plagued by additional errors.

We agree that the district judge lacked statutory authority to act after he entered the original sentence and that the initial plea colloquy was flawed. But we cannot say that the imperfections Sevilla cites justify setting aside the first judgment. Nor can we say, based on the arguments Sevilla puts forth before us, that the first sentence was unreasonable. Accordingly, the first and most severe sentence imposed by the district judge — 327 months plus a consecutive term of life imprisonment — stands. And Sevilla — who until today was facing a total sentence of 405 months — will likely find himself wishing he had left well enough alone….

We acknowledge that our result may seem harsh. Where Sevilla once faced 405 months’ imprisonment, now he must grapple with a life sentence. But Sevilla chose to proceed with this appeal knowing he risked a higher sentence.

Judge Torruella dissents.

I haven’t looked into this carefully, but I found the result a little surprising at first glance. I know that it used to occasionally happen that defendants who lost their sentencing appeals could get a higher sentence on remand, but I had thought that the Supreme Court disapproved that practice in Greenlaw v. United States in 2008. There, the court held that “absent a Government appeal or cross-appeal,” a federal court of appeals cannot “order an increase in a defendant’s sentence.”

In this case, one might say that the First Circuit didn’t “order an increase in a defendant’s sentence” because it just reinstated the harshest of three sentences already ordered by the district court. But that’s at odds with the First Circuit’s declaration that “until today” the defendant was facing the lowest of the three sentences, and with its suggestion that absent the appeal, the defendant would have gotten the lower sentence.

So, knowledgeable readers, what am I missing? Do the strange facts of the case distinguish it from Greenlaw for some reason? The court did not cite Greenlaw, and so far as Westlaw reveals, it does not seem to be cited in any of the parties filings.

Will Baude is an assistant professor at the University of Chicago Law School, where he teaches constitutional law and federal courts. His recent articles include Rethinking the Federal Eminent Domain Power, (Yale Law Journal, 2013), and Beyond DOMA: State Choice of Law in Federal Statutes, (Stanford Law Review, 2012).

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