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Past President, National Association of Criminal Defense Lawyers

Federal Appeals Law Firm

The Law Offices of Alan Ellis is a criminal defense law firm.  Among its areas of practice are representing criminal defendants in appeals in all U.S. Courts of Appeals from conviction and sentence.

A direct appeal is a creature of statute. See 18 U.S.C. §§ 3732, 3742. The appeal is the first way in which a federal criminal defendant who has been convicted of a crime, either after a guilty plea or a trial, may challenge a conviction or sentence. A defendant’s conviction is not final until it has been affirmed on direct appeal. An appeal is a review by a court of appeals of the trial court proceedings to determine whether the proceedings were carried out according to law. The review by the court is based entirely upon written records of the trial court proceedings, including the reporter’s transcripts which are the verbatim transcript of oral proceedings. The appellate court does not hold a new trial or accept new evidence. The attorneys present most of their arguments in writing and the defendant, who is known as the “appellant”, does not appear before the court. The attorneys appear briefly and orally argue the case in many appeals, but not all.

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Read Our Comprehensive FAQ On 2255 Motion

Who is entitled to a direct appeal?

Every defendant convicted after a trial or guilty plea is entitled to a direct appeal. If a defendant is indigent, he is entitled to appeal without the payment of a filing fee (in forma pauperis), to a free copy of the reporter’s transcript (the verbatim account of in-court proceedings), and is entitled to the appointment of counsel to represent him on appeal. See 18 U.S.C. § 3006A, 28 U.S.C. § 753(g).

What issues can be raised in an appeal?

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.

How is a sentencing appeal different from an appeal from the underlying conviction?
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How is a sentencing appeal different from an appeal from the underlying conviction?

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.

What are some of the obstacles a defendant may encounter in litigating an appeal?

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.

How does a direct appeal differ from a § 2255 motion?

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.

How and where do you file an appeal?

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.

Do any special rules apply to appeals?

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.

How long will it take?

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.

What are the briefs?

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.

What is oral argument?

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.

How is the appeal decided?

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.

Can I give up my right to appeal?

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.

What happens if the defendant wins?

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

What happens if the defendant loses?

If the appellant loses the appeal or does not prevail on one or more issues, he may file a petition for rehearing with the three-judge panel of the Court of Appeals that decided the case or, with the entire Court en bancSee supra, at 7; Fed. R. App. P. 35, 40. If this petition is denied, the appellant may file a petition for review (Petition for Certiorari) in the Supreme Court, however, the Supreme Court rarely grants such petitions. S.Ct. R. 10.

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The Law Offices of Alan Ellis specializing In Federal Sentencing, Appeals, 2255 Habeas Corpus