Federal Criminal Appeal Lawyers

Whether you went to trial or pleaded guilty, a federal criminal appeal is the most important avenue for you to fight your conviction after you are sentenced.  That means that having an experienced federal appellate lawyer in your corner who (i) knows the law, (ii) engages in aggressive appellate advocacy, and (iii) communicates with you every step of the way is absolutely vital.  Indeed, getting the help of a seasoned federal appellate lawyer will allow you to put your very best case before the federal appeals courts.

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At the Law Offices of Jeremy Gordon, we have highly experienced appellate lawyers who can help you make a strong, persuasive case before any Federal Appeals Court in the country.  Call us today at 1-844-ATTY-NOW, or fill out our online contact form today.

Here are some important FAQs about federal appeals that will help you understand the process in the event you want to challenge your conviction or sentence.       

What is a Direct Appeal of a Criminal Case?

Once you are found guilty and sentenced in Federal District Court, you have the option to appeal to a higher court, a Federal Appeals Court.  In your appeal, you can argue that your trial, or your sentence, was unfair because the District Court made certain errors in your case. 

Accordingly, you can ask the Federal Appeals Court to send the case back down to the District Court to undo your sentence, re-try your case, or fix whatever errors need to be corrected.  You can also ask for the court render a verdict finding you not guilty at all under certain circumstances. 

What Can I Argue in a Direct Appeal? 

A direct appeal gives you the opportunity to point out all of the errors made in your case at the District Court level.  The errors that you bring to the appeals court’s attention could be errors at any stage in the process that led to your criminal conviction, including:

  • Before the Trial:  An incorrect denial of a motion to suppress, or improper rulings on the admissibility of evidence.
  • During Plea Negotiations:  The judge improperly interfering with plea negotiations.
  • During the Trial:  The failure of the government to prove its criminal case against you, improper or prejudicial arguments by the government, the District Court’s failure to grant a motion for a judgment of acquittal or motion for new trial, improper rulings on trial evidence as it arises. 
  • During Sentencing:  Improper statutory or guideline sentencing enhancements, including but not limited to career offender enhancements, 851 enhancements, armed career criminal act enhancements, etc. 

Who Will Hear My Direct Appeal? 

Your appeal will be heard in the Court of Appeals in the Circuit in which your case resides.  In the United States, there are 13 different U.S. Circuit Courts of Appeal.  Here is a map of where all the Circuit courts are in the country:

So, for example, the State of California is in the Ninth Circuit.  Therefore, if you were convicted and sentenced in a District Court in California, then your appeal would be made to the U.S. Court of Appeals for the Ninth Circuit.  If your case was in Minnesota, then your appeal would go to the U.S. Court of Appeals for the Eighth Circuit.

How Does the Direct Appeal Process Start? 

The appeal process starts by filing a Notice of Appeal in the District Court where you were convicted and sentenced.  The Notice of Appeal is a very simple form, only two pages long (writing legal briefs comes later in the process). It allows you to give some basic information about your case, and to briefly summarize the errors that you believe occurred before the District Court.   

Note:   You have a very short time within which to file your Notice of Appeal, so if you believe that an error occurred in your case, you need to file the Notice of Appeal as quickly as possible.  Not filing a Notice of Appeal in time will likely jeopardize your ability to appeal your case at all.    Federal Rule provides that, in a criminal case, a Notice of Appeal must be filed in the District Court within 14 days after the later of: (1) the entry of either the judgment or the order being appealed; or (2) the filing of the government’s notice of appeal.

What Is the Process of a Direct Appeal?

First, your appeal begins when you file your Notice of Appeal.  Once the Notice of Appeal is received by the District Court and the Court of Appeals where your case will be heard, your case will be assigned a Court of Appeals docket number.  Any correspondence in your case from that point on should include that docket number.  You may also receive some preliminary forms that need to be completed for the appeal to proceed.

Second, you will then receive a Briefing Schedule from the Clerk of the Appeals Court, providing the dates on which you need to file your legal brief.  Your brief is the most important document in your appeal.  Both you and the government are given the opportunity to file appeal briefs in the case.  If you initiated the appeal, then you will also have the opportunity to file a reply brief in response to the government’s appeal brief. 

Remember, that direct appeal is an opportunity to challenge to what occurred before the District Court, not the time to present new evidence or testimony, there are other procedures to re-open your case before the District Court if new evidence comes up after you were convicted or sentenced. 

You may request Oral Argument, but in the vast majority of cases, the Court of Appeals will decide the case on the briefs only.

Third, after considering the briefs of the parties, the Court of Appeals will enter a Final Judgment

Finally, if you are dissatisfied with the decision, you may file a Petition for Rehearing before the same Court of Appeals. 

In the alternative, you may file a Petition for Writ of Certiorari in the United States Supreme Court.  The appeal process before the Supreme Court is similar to the process discussed above.  The one big difference, however, is that the Supreme Court has oral argument for virtually all of the cases it agrees to hear. 

What Rules Are Used to Determine if My Appellate Case Will Be Granted or Denied? 

All litigants before the Court of Appeal must abide by the Federal Rules of Appellate Procedure.  Those Rules dictate how an appeal is handled before the court.  The Rules are very specific, even down to details like the correct font type and margins you use for your appellate brief.  Having an experienced Federal Appeals Lawyer to help you is essential so you can be sure that your case conforms to all of the applicable procedural rules.

With regard to how an Appellate Court will view your case, there are actually three different “standards of review” that an appellate court might use.  Those three standards of review are as follows:

  • De novo review,
  • Abuse of discretion,
  • Clear error, and
  • Plain error.

The appropriate standard of review depends upon the type of issue being litigated.  For example, if you are challenging whether the District Court in your case was correct in finding a particular witness credible, the Court of Appeals will use a very deferential standard of review – the abuse of discretion standard – meaning that the District Court’s judgment will only be overturned if the district judge abused his or her discretion.  The Court of Appeals is deferential in those circumstances because the District Court actually watched the witness testify.  Thus, the District Court would be in the best position to make a credibility determination.

However, if you are challenging a decision of law by the District Court, then the Appellate Court will use a standard that gives no deference to the District Court – de novo (meaning “anew”) review.  That standard is used because a Court of Appeals ruling on questions of law will control over any decision on a question of law by a lower court.

My Lawyer Filed an “Anders Brief” on my case. What does that mean?

An “Anders Brief,” also known as a “no-merits brief,” is a brief filed by a criminal defendant’s court-appointed defense counsel when that counsel wants to withdraw from a case on appeal because he or she believes that the appeal is frivolous.  (The term “Anders Brief” comes from a 1967 Supreme Court case on the subject, titled Anders v. California, 386 U.S. 738 (1967)).

In an Anders Brief, a defense attorney must identify anything in the record that might support a viable appeal issue.  Once the Anders Brief is filed, the Court of Appeals will decide whether the appeal is frivolous.  If you have court-appointed attorney who files an Anders Brief in your case, then it would be wise to have a conversation with that attorney about his or her reasons for doing so. 

Can I Seek Ineffective Assistance of Counsel on My Direct Appeal?

No, you cannot assert ineffective assistance of counsel during your direct appeal.  The time to make an ineffective assistance of counsel claim is after you have exhausted all of your direct appeal options.  A claim of ineffective assistance of counsel is made in a “post-conviction relief” setting, typically through a Section 2255 motion.

What Is the Difference Between a Direct Appeal and a 2255 Motion? 

As we have discussed, a direct appeal is the opportunity to raise substantive legal and procedural issues following a trial.  If there is an issue related to a judge allowing particular information into evidence or the court making other errors in the trial process, then a direct appeal is the avenue to address those potential errors.

A Section 2255 motion, by contrast, is typically used to assert an ineffective assistance of counsel claim – which is not raised during a direct appeal – and to bring forth new evidence, if any.

The primary difference between a direct appeal and a 2255 motion is the information upon which it is based.  A direct appeal is limited to the facts and legal matters raised in front of the District Court.  A 2255 motion, however, is appropriate when there is new evidence or information that is outside the record before the District Court. 

2255 motions have some limitations.  The main limitation is that it can only be used to raise jurisdictional, constitutional, or other fundamental errors.  For example, some courts have not allowed litigation of sentencing guideline calculation errors because such errors do not rise to the level of a constitutional or fundamental error.

When effectively used, the 2255 motion can be an important way in which to correct an injustice that was not, or could not have been, raised during a direct appeal.  The power of the 2255 motion comes from the fact that courts are allowed broad latitude when granting relief under the motion.

Importantly, 2255 motions are only available to people convicted in federal courts who are in custody.

What If Law Comes Out After Both Sides Have Finished Writing Their Briefs?  Can I Let the Court Know About It?

Yes.  If the law changes in a way that impacts your case after all the briefs in your case have been filed, then you can alert the court to that change in the law through a motion to the Court of Appeals.  The way in which the appeals court will handle the motion depends upon the specifics of the situation.  But, in general, you should alert the court to any material change in the law that might impact your case, while your case is pending.   

My Attorney Said That I Signed an Appeal Waiver in My Plea Agreement.  What Does That Mean? 

An “Appeal Waiver” is an agreement that is typically part of a plea agreement, which states that you agree to forego, or “waive,” your right to make a direct appeal your case.  If you pleaded guilty and accepted a plea agreement, rather went to trial, then it is highly likely that you signed an Appeal Waiver.

If you signed an Appeal Waiver, then that means you cannot file an appeal, except in certain circumstances.  For example, if the sentencing court grants an upward departure from the sentencing guidelines, you may have the ability to appeal that decision.  The Appeal Waiver you signed must be specific about what post-conviction remedies you waived.  If there is no mention of possible appeal remedy in the plea agreement, then courts will find that that particular remedy was not waived. 

In short, having signed a Waiver will likely limit the kinds of relief you can request on appeal.  But, it does not necessarily foreclose all avenues of appeal.  A qualified Federal Appeals Lawyer can help you better understand what options you have available to you if you did sign such a Waiver.  

What Are the Next Steps If I Win?

If you win your appeal, then the next steps for your case will be outlined by the Court of Appeals in its final decision.  Typically, the Appellate Court will tell the District Court precisely what to do in your case, such as releasing you from prison, holding a re-trial, or holding a re-sentencing.

What Are the Next Steps If I Lose? 

If you are dissatisfied with the court’s decision, then you may file a Petition for Rehearing before the same Court of Appeals and go through the briefing process again. 

In the alternative, you can ask the United States Supreme Court to hear your case by filing a Petition for Writ of Certiorari.  The Supreme Court may choose not to hear your case, and then that will mark the time that you have exhausted your direct appeals.  If, however, the Supreme Court agrees to hear your case, then the appeal process before the Supreme Court is similar to the process discussed above.

The Law Office of Jeremy Gordon has been practicing federal criminal appeals and post-conviction law since 2012. We have had favorable outcomes in more than 70 cases in the past four years. Our entire staff is committed to providing excellent service to our clients and their families. We encourage you to contact our office today to visit with us on how we might be able to help you or your loved one get the representation they deserve. You can also add us on Facebook or Twitter.