Federal Criminal Appeals

Federal criminal appeals are the best way a defendant can challenge their conviction or sentence. A defendant who has been convicted and sentenced in a federal district court may take an appeal to one of the United States Courts of Appeals. An appeal taken directly after sentencing is typically referred to as a direct appeal. A direct appeal is typically used to raise challenges to the district court’s rulings on pretrial matters, matters related to guilty plea, trial issues, sentencing, and many other claims.

How to Appeal A Federal Criminal Case

Appealing a federal criminal conviction or sentence is nuanced and time consuming. Below is a high-level overview of the federal direct appeal process and what you should expect along the way.

Deadline to File Federal Criminal Appeals- Direct Appeal

A defendant has 14 days after final judgment is entered to file a notice of appeal with the district court. Fed R. App. P. 4(b)(1)(A). Note that the day judgment is entered may be later than the actual sentencing date, so it is important to check exactly when written judgment of conviction was entered in order to determine the timeliness of a notice of appeal.

If the defendant misses the 14-day deadline to appeal, the district court may extend the deadline for good cause. If the timeframe to appeal passed because the defendant’s attorney failed to consult with the defendant or file a notice of appeal on their behalf, then a 28 U.S.C. § 2255 motion may be necessary to obtain an out-of-time appeal.

Of course, the best practice is to file the notice of appeal as soon as possible to avoid any delays or loss of the opportunity to appeal to a higher court.

Perfecting the Federal Criminal Appeal

Once a notice of appeal is filed in the district court, it is transmitted by the district court clerk to the appropriate U.S. Court of Appeals. There are 12 circuit courts that hear criminal appeals. Each circuit has jurisdiction over certain states. For example, the U.S. Court of Appeals for the Fifth Circuit encompasses all federal district courts in Texas, Louisiana, and Mississippi. A map of the circuit court’s jurisdictions can be found here.

While all circuit courts are required to follow the Federal Rules of Appellate Procedure, each circuit has its own set of local rules that govern how appeals are to proceed in their court. It is important to have an attorney that is familiar with the local rules and procedures of the circuit court where your appeal is being handled.

Typically, perfecting an appeal consists of paying a filing fee (or filing a motion to proceed in forma pauperis), ordering transcripts, and filing preliminary case opening documents with the court of appeals. Once the record is complete, the court of appeals will typically set a briefing schedule.

The appellant (the party who is appealing) files an opening brief first. The appellee (the opposing party) then files a brief in response. The appellant typically has the option of filing a reply brief. Once briefing is complete, the appellate court will decide whether or not to hold oral argument. At the conclusion of briefing and/or argument, a panel of three circuit judges will issue an opinion deciding the appeal.

What Issues Can Be Raised on Appeal?

Federal criminal appeals tend to focus on errors made by the district court. Although, some cases may have grounds for filing prosecutorial misconduct or ineffective assistance of counsel. However, the courts of appeals rarely decide ineffective assistance of counsel claims on direct appeal and instead typically reserve those for 28 U.S.C. § 2255 motions.

What claims can be raised on direct appeal must be decided on a case by case basis. But typical claims involve errors in denying motions to suppress, errors in the trial process, whether a guilty plea is knowing and voluntary, sufficiency of the evidence, jury instructions, violation of constitutional rights, and sentencing claims such as procedural and substantive reasonableness.

• Sentencing Guideline Errors. Commonly, federal criminal appeals involve claims that the sentencing court improperly applied the Federal Sentencing Guidelines in calculating the advisory sentencing guideline range. For example, one recent case from the U.S. Court of Appeals for the Fifth Circuit found that the sentencing judge improperly enhanced a sentence by applying a provision that penalizes defendants who maintain a drug premise. See United States v. Nghia Le, No. 23-30888, 2025 U.S. App. LEXIS 1053 (5th Cir. Jan. 16, 2025).
• Improperly admitted evidence. Judges often make mistakes about what evidence to admit or exclude at jury trials. Federal direct appeals from criminal convictions routinely challenge these evidentiary rulings. In a recent direct appeal case, the U.S. Court of Appeals for the First Circuit held that the district court improperly admitted evidence establishing a key point needed to uphold a conviction. See United States v. O’Donovan, No. 24-1200, 2025 U.S. App. LEXIS 951 (1st Cir. Jan. 15, 2025). As a result of this improperly admitted evidence, some of the federal criminal convictions were tossed out on appeal.
• Motions to Suppress. Illegal searches, seizures, and the Fourth Amendment are some of the most hotly contested issues in every criminal case. That is because if a defendant can win his motion to suppress it will often result in all of the evidence being thrown out and the charges against him dismissed. As a result, federal criminal appeals almost invariably challenge the denial of a motion to suppress by the trial court. For example, in United States v. Giambro, the U.S. Court of Appeals for the First Circuit reversed the trial court ruling denying the motion to suppress. According to the First Circuit, the police needed a warrant to enter the defendant’s home and no exception applied for exigent circumstances. As a result the case was sent back to the district court where the evidence will likely be thrown out under the exclusionary rule.

Federal Criminal Appeals Standard of Review

Depending on the type of claim brought, and whether it the claimed error was preserved in the trial court, the court of appeals applies different standard of reviews when deciding issues on appeal. Issues of law are generally reviewed de novo, meaning the court starts from a fresh slate. Other issues involving a trial court’s factual findings or discretion are reviewed under the more strict standard of abuse of discretion. Errors raised for the first time on appeal may still be considered, but they are reviewed under the toughest standard–plain error review. To establish plain error, the appellant must demonstrate that the error was (1) obvious, (2) affected their substantial rights, and (3) affected the integrity, fairness, and reputation of the judicial proceeding. Even if an appellant satisfies all these prongs, the court of appeals still has discretion whether or not to correct the error.

Possible Outcomes

If the court of appeals finds no error, or harmless error, then it will likely affirm the trial court’s judgment. However, if the court finds an error that requires correction, it may reverse the trial court’s decision or vacate and remand the decision back to the district court with instructions.

Further Appellate Review

If the three-judge panel affirms the district court’s judgment or the appellant is dissatisfied with the outcome of the appeal, the appellant can seek further appellate review from the circuit court or United States Supreme Court.

After the panel issues its judgment, the appellant can seek panel rehearing or rehearing en banc. Rehearing en banc requests an opinion from every judge in the circuit. If a majority of circuit judges vote to rehear the case, the court will order additional en banc briefing before issuing a decision from the full court. En banc decisions are important because those decisions are able to overturn prior circuit precedent.

Whether an appellant seeks rehearing or not, they also have the option of seeking certiorari from the United States Supreme Court. A petition for writ of certiorari must be filed within 90 days of the panel’s judgment or 90 days after the denial of a petition for rehearing en banc. However, the Supreme Court grants a very small percentage of petitions.

It is important to note that the appellate process can be complex and lengthy, often requiring the assistance of experienced appellate attorneys familiar with federal criminal law and procedure. The attorneys at Evergreen Attorney are here to assist. Contact us here for your free initial consultation.