Tuesday, December 12, 2006

U.S. v. Peters (9th Cir. - Dec. 12, 2006)

Check out the final paragraph of this (very short) per curiam opinion.

Can you really increase the sentence of a criminal defendant on appeal when the United States hasn't cross-appealed? I didn't think you could, and would have been pretty confident that I was right. Though that's precisely what the court -- without virtually any substantive analysis -- does here.

I'm pretty sure that increasing a criminal sentence on appeal is very different from the two cases the court cites in support of doing so. The first case reduced a criminal sentence on appeal by striking a conspiracy conviction that violated double jeopardy -- an issue that the defendant raised on appeal. That's worlds apart from unilaterally increasing a sentence when the U.S. doesn't appeal. The second involved a civil action in which the court again reduced a judgment, yet again on the basis of an argument raised by the defendant on appeal. That one's a galaxy apart from what the court does here.

Sure, it's only another week or two in prison for the defendant. But it's still weird (and, for Mr. Peters, not fun at all). I don't recall seeing something like this before. And it seems wrong to me.

POSTSCRIPT - I was interested enough in this case to look at it a bit more this afternoon. And, indeed, the Court of Appeals can't do this -- or at least I'm pretty darn sure it can't. So I don't think that last sentence will (or should) be around for long.