Federal Criminal Appeals Lawyer — Fifth Circuit

An appeal is not a second trial and it is not a chance to argue that the jury got it wrong. It is a review of the record for legal error.

That makes preservation everything. An issue that was not raised below is reviewed, if at all, under a standard that almost never produces reversal.

Fourteen days, and it is close to absolute

Under Federal Rule of Appellate Procedure 4(b), a defendant's notice of appeal must be filed within 14 days after the entry of the judgment or the order being appealed. The district court may extend by up to 30 days on a showing of excusable neglect or good cause — but that is discretionary and not something to rely on.

The notice itself is a short document. Filing it preserves the right to appeal; the briefing comes later. If you are unsure whether to appeal, file the notice and decide afterwards. An appeal can be dismissed voluntarily. A missed deadline generally cannot be cured.

If you asked your lawyer to file a notice of appeal and they did not, that is its own claim. Under Roe v. Flores-Ortega prejudice is presumed where counsel disregarded a defendant's instruction to appeal, and the remedy is pursued through a § 2255 motion.

The Fifth Circuit

All federal criminal appeals from Texas go to the Fifth Circuit, which sits in New Orleans and also hears appeals from Louisiana and Mississippi. Cases are decided by three-judge panels.

Oral argument is not automatic — the court grants it in a minority of criminal cases and decides most on the briefs. That makes the opening brief the single most important document in the appeal, and it is why appellate work is a distinct discipline from trial work rather than an extension of it.

After a panel decision, a petition for rehearing or rehearing en banc before the full court is possible but rarely granted. Beyond that lies a petition for certiorari to the Supreme Court, which is granted in a very small fraction of cases.

Preserved error versus plain error

This distinction determines the realistic value of most appeals.

Preserved error. An issue objected to in the district court is reviewed on its merits under the applicable standard. If error is found, the government must show it was harmless.

Plain error. An issue not raised below is reviewed under Rule 52(b) and the Olano framework: there must be an error, it must be clear or obvious, it must have affected substantial rights, and the court must conclude it seriously affects the fairness or integrity of the proceedings. Relief is discretionary even when all four are met.

Plain error reversals happen, but they are uncommon. This is the practical reason trial counsel's objections matter so much, and the reason an appellate lawyer's first task is reading the transcript to establish what was actually preserved.

The standards of review

• Questions of law — reviewed de novo, with no deference. The most favourable posture for an appellant.
• Findings of fact — reviewed for clear error. Very deferential.
• Evidentiary and discretionary rulings — reviewed for abuse of discretion.
• Sufficiency of the evidence — the evidence is viewed in the light most favourable to the verdict. This is the hardest standard in criminal appellate practice and sufficiency arguments rarely succeed alone.
• Sentencing — the Guidelines calculation is reviewed de novo for legal questions and for clear error on facts; the ultimate sentence is reviewed for reasonableness under Gall.

The issues that actually win

Guidelines calculation errors. The most productive category by a wide margin. Miscalculated loss amount or drug quantity, an enhancement applied without a factual basis, a misscored criminal history category, or a mistaken career-offender or enhancement determination. These are legal questions reviewed de novo, and a calculation error generally requires resentencing.

Suppression rulings. Where a motion to suppress was litigated and denied, the legal conclusions are reviewed de novo — a genuine second look at the Fourth Amendment question.

Jury instructions. An instruction that misstates an element, particularly after a Supreme Court decision has narrowed a statute. This category has been unusually active given recent decisions on § 1028A, honest services, and threat offenses.

Statutory interpretation. Whether the conduct proved actually falls within the statute charged.

Procedural sentencing error. Failure to address a properly raised argument, failure to explain the sentence adequately, or reliance on a clearly erroneous fact.

What generally does not win: reweighing credibility, sufficiency challenges standing alone, and disagreement with a within-Guidelines sentence.

Appeal waivers — and their limits

Most federal plea agreements contain a waiver of the right to appeal. They are generally enforceable if entered knowingly and voluntarily, and the Fifth Circuit does enforce them.

But they are not comprehensive. Waivers commonly do not bar, and frequently expressly except:

• A sentence exceeding the statutory maximum
• A sentence above an agreed cap or exceeding the range the waiver was conditioned on
• Claims of ineffective assistance of counsel
• A sentence based on a constitutionally impermissible factor such as race
• Claims that the plea or the waiver itself was not knowing and voluntary

Reading the specific waiver language against the sentence actually imposed is therefore the first step in evaluating any post-plea appeal. Defendants are often told there is nothing to appeal when there is.

Direct appeal or § 2255?

They serve different purposes and the choice is not optional.

Direct appeal reviews errors visible in the district court record. It comes first, and issues that could have been raised on appeal but were not are generally defaulted.

A § 2255 motion addresses claims that depend on facts outside the record — overwhelmingly ineffective assistance of counsel. Under Massaro v. United States such claims are not defaulted by failing to raise them on appeal, because the record needed to prove them does not yet exist.

The § 2255 clock is one year and generally starts when the conviction becomes final — which, if you sought certiorari, is when it was denied. Pursuing the appeal first and the collateral attack second is the normal sequence, and it needs to be planned rather than discovered.

Related pages

§ 2255 post-conviction relief · Federal sentencing guidelines · Suppression and Franks hearings · Compassionate release