Federal Criminal Appeals

A federal criminal appeal is your opportunity to persuade the Circuit Court of Appeals that a legal mistake happened at your trial, guilty plea, or sentencing that means your conviction or sentence should be reversed. Federal criminal appeals are unique in that most appeals concern sentencing errors that happened after a guilty plea.

In an appeal, the court of appeals is limited to considering the evidence presented to the district court. That means you cannot introduce new evidence in an appeal. Instead, a panel of three judges on the court of appeals will look at what happened at the district court, consider the law and the arguments made by the parties, and make a decision.

The Fifth Circuit Court of Appeals is located in New Orleans. The Fifth Circuit hears appeals from all federal district courts in Texas, Louisiana, and Mississippi.

How does a federal criminal appeal work?

U.S. Court of Appeals

5th Circuit

Stages of an Appeal

  • First, you must file a “notice of appeal” within 14 days of the date the final judgment was entered in your case, or you lose your right to appeal. A notice of appeal is a short document that tells the court you are appealing your conviction or sentence. If you choose to hire me within that 14-day period, I can file the notice for you. But you should file the notice as quickly as possible. Ask your trial attorney to file the notice for you or you may file the notice yourself. If you are not sure whether you want to appeal, it is a good idea to file a notice of appeal to preserve your right to appeal. If you later decide you do not wish to appeal, you may ask the court to dismiss the appeal.

  • The Record on Appeal, or ROA, is everything the court of appeals will look at when deciding your appeal. It consists of all the documents filed in your case at the district court, such as the indictment, any pretrial motions, your presentence report, and any plea documents. It also contains the transcripts of your trial or guilty plea hearing and your sentencing. Once the ROA is sent to the court of appeals, the court will set a briefing schedule.

  • My job is to examine the ROA in your case, identify any mistakes made by the district court, research the legal issues that I find, and present those mistakes to the court of appeals. I will file your initial brief, which is a written document that contains our arguments for what we believe the district court got wrong in your case. The brief explains to the court of appeals why you should get a new trial or new sentencing and includes citations to the law that supports our arguments.

  • After we file our initial brief, the government has 30 days to file a response brief. The response brief explains to the court of appeals why the government disagrees with our arguments and why the government believes your conviction or sentence should stand.

  • After the government files its response, we have 21 days to file a reply brief. In the reply, we point out any errors in the government’s brief and tell the court of appeals why we should win the appeal.

  • In some cases, the court of appeals will ask for “oral argument.” If the court orders oral argument, I will travel to the court of appeals and argue your case in person. The government will also send a prosecutor to argue their side. Oral argument isn’t often granted in criminal cases but when it is, it is an encouraging sign that the court is interested in the issues raised in that appeal. In other cases, the court will simply decide the issues “on the briefs” without oral argument.

  • A three-judge panel at the court of appeals will decide your case. Once they have reached a decision, the court will issue a written opinion explaining whether they are reversing the district court (meaning they are overturning the conviction or sentence) or affirming the district court.

How Long Will My Appeal Take?

There is no set timeline for exactly how long a federal criminal appeal will take. After the court has received all appellate briefs and heard oral arguments, the court may rule at any time but there is no set deadline for the court to reach a decision. In general, an appeal takes about one year from notice of appeal to the court’s decision.

What Are My Options if I Lose My Federal Criminal Appeal?

If you lose your appeal, you can consider some or all of the following options:

  • You can ask the court of appeals to reconsider its decision. There are two ways to do this. You may ask for “panel rehearing,” which means you ask the three-judge panel that issued the decision in your case to reconsider. The court will only grant panel rehearing in limited circumstances, such as when the court overlooked an important fact or point of law. You may also ask for “rehearing en banc,” which means you are asking all of the judges on the court of appeals to hear your case, instead of the three-judge panel. Rehearing en banc is only granted when the court’s decision conflicts with a decision from the United States Supreme Court or another decision from the court of appeals, or if the appeal involves an issue of exceptional importance. You have 14 days to file a motion for rehearing.

  • You may file a “cert petition” asking the United States Supreme Court to hear your case. The U.S. Supreme Court only considers a tiny fraction of the cases presented to it but if your case involves an issue of interest to the Supreme Court, it may be worth filing a cert petition. You have 90 days from the date the court of appeals enters its judgment to file a cert petition.

  • A 2255 motion asks the court to “vacate, set aside or correct the sentence” when “the sentence was imposed in violation of the Constitution or laws of the United States, or… the court was without jurisdiction to impose such sentence, or… the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack.” As a general rule, you have one year to file a 2255 motion in federal court from the date your conviction becomes final, though there are exceptions to this rule.