Past President, National Association of Criminal Defense Lawyers

The appellate court does not decide whether a defendant is guilty or innocent. Rather, the question before the court of appeals is whether there are one or more legal errors that affected the verdict. If these legal mistakes are important enough, then the case is sent back to the trial court, usually for a retrial. On fewer occasions, where the law prohibits further prosecution, a case will be reversed with directions to dismiss it. If the legal mistakes only concerned a sentence, then the defendant may be entitled to resentencing.

Federal sentencing appeals have changed since the Supreme Court's decision in United States v. Booker (2005), making the Sentencing Guidelines advisory rather than mandatory. Post-Booker appeals focus on the "reasonableness" of the sentence, with two types: procedural reasonableness (involving correct calculation of guidelines and due process) and substantive reasonableness (ensuring the punishment fits the crime while not exceeding what is necessary to achieve sentencing goals). Reversals for substantive reasonableness are rare due to the broad discretion of district courts, although they have occurred in exceptional cases.

Some obstacles a defendant may encounter in litigating an appeal include waiver of particular issues, the standard of review applied by the appellate court, and the deference given to the district court's decisions. Issues not raised in the district court may be considered waived, and relief may only be granted in cases of "plain error." The standard of review varies depending on whether the argument is legal, mixed question of law and fact, or a finding of fact, with varying degrees of deference to the district court's rulings. Some legal arguments are reviewed for abuse of discretion, which requires showing that the lower court's decision was not within the range of reasonable judgments.

One of the most significant differences between a direct appeal and a motion to vacate conviction and/or sentence, 28(U.S.C.)2255 a so called “2255″ motion is that direct appeals are decided based on the district court record as it exists as of the time the notice of appeal is filed. Section 2255 motions offer defendants the opportunity to present the court with new evidence. However, unlike in a direct appeal, not all issues may be raised in a § 2255 motion. Section 2255 motions may only be used to raise jurisdictional, constitutional, or other funda-mental errors. Because a section 2255 motion cannot be used for all legal challenges, even if a defendant has a claim that requires extra-record support, it is generally not a good idea to forego a direct appeal and proceed directly to a § 2255 motion.

To file an appeal, you start by filing a notice of appeal with the clerk of the court where the case was tried. This should be done within 14 days after the district court enters the judgment of conviction or after the government files a notice of appeal. The 14 days time limit is strict and jurisdictional. If you miss this deadline, you may, within thirty days after the 14 days period, file a motion for leave to file a late notice of appeal based on excusable neglect.

Yes, the Federal Rules of Appellate Procedure. Rule 4(b) addresses the procedure for filing a notice of appeal. Rule 3 addresses what information must be contained in the notice of appeal. The appendix to the rules contains a sample form for the notice of appeal.

A briefing schedule for the appeal is set shortly after the notice of appeal is filed. This includes a date by which the appellant must order the reporter’s transcripts, and a due date for the opening brief. Frequently, the reporter’s transcripts are not prepared on time, and briefing schedules are continued because of court reporter delays. In addition, sometimes attorneys find it necessary to obtain an extension of time.

Most appeals take from one year to 18 months from the filing of the notice of appeal to the issuance of a decision. However, in certain complicated cases, appeals have been known to take several years to resolve.

The appellant’s brief is a written argument stating the reasons why the trial court’s decision should be reversed. Again, the brief is limited to the record and cannot contain arguments which are based on statements, documents, or events which are not included in the record or the sentencing. The brief contains the defendant’s reasons why the conviction should be reversed, or the sentence lower, together with the factual and legal authorities in support. The law requires that an appellate court view the facts in the light most favorable toward the party which prevailed. Thus, except in limited circumstances, the evidence will be viewed most favorably to the prosecution.

Following the filing of the opening brief, the prosecution prepares its answering brief. The Assistant United States Attorney assigned to the case has 30 days to prepare and file his brief. In many cases he will ask for and be given extra time to file his brief. The prosecution’s brief also must be based solely on the record, but its arguments support the trial court’s actions.

Once all the briefs in the case are filed, the appellate court may set a date for oral argument. On that date, the Assistant United States Attorney and defense counsel appear before the judges of the court of appeals and argue the case. The defendant will not be brought to court for the oral argument. The court does not hear from any witnesses nor any new evidence. Not all cases are set for oral argument. Some are decided by the court of appeals only on the written briefs. These are usually cases in which the case presents simple issues which involve clearly established law.

After the judges of the Court of Appeals have read the briefs and heard oral argument (if there was oral argument), they decide whether the case should be affirmed, reversed, or the judgment modified in some way. Once their decision is reached, a judge is assigned the case to write an opinion stating the court’s decision and the reasons for it. An opinion may be expected anywhere from 30 days to six months after oral argument. Usually, however, a decision is issued between 30 days and three months.

While every criminal defendant has a right to an appeal, the right to appeal may be waived. Many government attorneys insist upon a waiver of the right to appeal pursuant to a plea agreement under which the defendant pleads guilty in exchange for some promises or concessions from the government. Waivers of the right to appeal are enforceable if they are voluntary and knowing. The Federal Rules of Criminal Procedure require a court to specifically advise the defendant that he is waiving his right to appeal at the time he pleads guilty.

When a defendant prevails on appeal, it does not usually mean that a judgment of “not guilty” will replace the guilty verdict and the person will be set free, although this is possible, and does occasionally happen. More often, the defendant obtains more modest, although significant relief, such as a new trial or resentencing.

Even if the defendant “wins” on appeal, the government can and may file a petition for rehearing with the three-judge panel of the court of appeals that decided the case or, alternatively, with the entire Court of Appeals