Federal criminal appeals in the U.S. courts of appeals

A federal criminal appeal asks a U.S. court of appeals to decide whether the district court made a legal error in the conviction or the sentence. The appeals court reads the record and the briefs; it doesn’t hold a new trial. The first deadline is short: a defendant’s notice of appeal is due in the district court within 14 days after the judgment is entered. This guide explains each step, from the notice of appeal to rehearing and a petition to the Supreme Court, and links to a guide for each circuit.

What are the U.S. courts of appeals?

The U.S. courts of appeals are the middle level of the federal courts, between the district courts (the trial courts) and the Supreme Court. There are 13 of them. Twelve are regional: each hears appeals from the federal district courts in its circuit, a group of states and territories set by 28 U.S.C. § 41. The thirteenth, the Federal Circuit, hears specialized cases such as patent appeals (uscourts.gov); criminal appeals from district courts go to the regional circuits (28 U.S.C. § 1291).

Cases are usually decided by a panel of three circuit judges (28 U.S.C. § 46(c)). The judges don’t hear witnesses or take new evidence, and there is no jury. A circuit’s decisions bind the lower courts within it, and most of its decisions are final because the Supreme Court reviews only a small share of them (uscourts.gov).

What can be appealed, and when?

A defendant can appeal a final judgment of conviction (28 U.S.C. § 1291) and can seek review of the sentence, for example if it was imposed in violation of law or as a result of an incorrect application of the Sentencing Guidelines (18 U.S.C. § 3742(a)). The government’s deadline to appeal is 30 days (Fed. R. App. P. 4(b)(1)(B)).

• Post-trial motions. A timely motion for judgment of acquittal, for a new trial, or for arrest of judgment moves the 14 days to run from the order deciding the motion, if that is later (Fed. R. App. P. 4(b)(3)).
• Extensions. The district court may extend the time by up to 30 days for excusable neglect or good cause (Fed. R. App. P. 4(b)(4)). Don’t count on it.
• Filing fee. Filing an appeal costs $605, paid to the district court clerk. A defendant who can’t afford it can ask to proceed in forma pauperis, meaning without paying the fee (Fed. R. App. P. 24(a)).
• Appeal waivers. Many plea agreements give up some or all appeal rights. In Hunter v. United States (2026), the Supreme Court held that an appeal waiver can’t be enforced when doing so would cause a miscarriage of justice, meaning an egregious error that would bring the judicial system into disrepute. That is a high bar.
• A lawyer on appeal. A defendant who can’t afford a lawyer is entitled to appointed counsel through the appeal (18 U.S.C. § 3006A(c)). In many circuits the trial lawyer stays on the case until the court of appeals relieves them; each circuit page below gives that circuit’s rule.

The record, the briefs and oral argument

The appeal is decided on the record: the papers filed in the district court, the exhibits and the transcripts. Within 14 days after filing the notice of appeal, the appellant must order the transcripts needed for the appeal or file a certificate that none will be ordered (Fed. R. App. P. 10(b)(1)).

Under the national rule, the appellant’s opening brief is due 40 days after the record is filed, the government’s brief 30 days after that, and an optional reply 21 days later (Fed. R. App. P. 31(a)(1)). A principal brief is limited to 13,000 words (Fed. R. App. P. 32(a)(7)(B)). Several circuits change these schedules by local rule, so check the circuit’s page.

Oral argument must be allowed unless all three judges on the panel agree it isn’t needed, for example because the issues have already been decided or the briefs and record are enough (Fed. R. App. P. 34(a)(2)). Many criminal appeals are decided without argument. When a lawyer finds no non-frivolous issue, the lawyer may file a brief under Anders v. California and ask to withdraw; each circuit has its own procedure for that.

Standards of review

The standard of review is how much deference the court of appeals gives the district court. It often decides the appeal.

• Legal questions: de novo. The appeals court decides them fresh. For example, the ultimate questions of reasonable suspicion and probable cause are reviewed de novo, while findings of historical fact are reviewed only for clear error (Ornelas v. United States, 517 U.S. 690 (1996)).
• Sentences: abuse of discretion. The court first checks for significant procedural error, such as miscalculating the guideline range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, relying on clearly erroneous facts, or failing to explain the sentence. It then reviews whether the sentence is substantively reasonable (Gall v. United States, 552 U.S. 38 (2007)).
• Sufficiency of the evidence. The question is whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the elements beyond a reasonable doubt (Jackson v. Virginia, 443 U.S. 307 (1979)).
• Unpreserved errors: plain error. An error no one objected to in the district court can be corrected only if it is plain, affects substantial rights, and seriously affects the fairness, integrity or public reputation of judicial proceedings (Fed. R. Crim. P. 52(b); United States v. Olano, 507 U.S. 725 (1993)). Errors that don’t affect substantial rights are disregarded as harmless (Fed. R. Crim. P. 52(a)). This is why objecting at trial and at sentencing matters.

Panel rehearing and rehearing en banc

Since December 1, 2024, panel rehearing and rehearing en banc are both governed by Fed. R. App. P. 40; the old Rule 35 on en banc proceedings was folded into it. A party can ask the same panel to rehear the case, ask the full court to rehear it en banc, or both, and a party seeking both must file a single document unless a local rule says otherwise (Rule 40(a)).

• Deadline. In a criminal case, a petition is due within 14 days after judgment is entered, or within 14 days after an amended decision (Rule 40(d)(1)).
• Panel rehearing must state each point of law or fact the panel overlooked or misapprehended (Rule 40(b)(1)).
• Rehearing en banc is not favored. The petition must begin by stating that the panel decision conflicts with a decision of the circuit, the Supreme Court or another circuit, or that the case involves a question of exceptional importance (Rule 40(b)(2), (c)).
• Length and response. The petition is limited to 3,900 words if produced on a computer. No response is allowed unless the court asks for one, and a petition is ordinarily not granted without that request (Rule 40(d)(3), (4)).
• Mandate. The court’s mandate, which sends the case back to the district court, issues 7 days after the time to seek rehearing expires or 7 days after a timely petition is denied (Fed. R. App. P. 41(b)).

Certiorari: asking the Supreme Court

After the court of appeals rules, a party can petition the Supreme Court for a writ of certiorari. The petition is due within 90 days after the court of appeals enters judgment (Sup. Ct. R. 13.1). If a timely rehearing petition was filed, the 90 days run from the denial of rehearing (Rule 13.3). A Justice may extend the time by up to 60 days for good cause, but the application must generally be filed at least 10 days before the due date (Rule 13.5). Review is not a matter of right; the Court grants it only for compelling reasons, such as a conflict among the circuits (Rule 10).

After the appeal

If the appeal leads to a remand for resentencing, the case goes back to the district court for a new sentencing hearing; see federal sentencing: what to expect. A claim of ineffective assistance of counsel may be brought in a § 2255 motion whether or not it could have been raised on direct appeal (Massaro v. United States, 538 U.S. 500 (2003)), and a § 2255 motion generally must be filed within one year after the conviction becomes final (28 U.S.C. § 2255(f)); see challenging a federal sentence: 2255 motions.

Criminal appeals by circuit

Each guide lists the districts the circuit covers, where it sits, and the local rules that matter in criminal appeals, with links to the court’s own rules.

• First CircuitMaine, Massachusetts, New Hampshire, Puerto Rico, Rhode Island
• Second CircuitConnecticut, New York, Vermont
• Third CircuitDelaware, New Jersey, Pennsylvania, Virgin Islands
• Fourth CircuitMaryland, North Carolina, South Carolina, Virginia, West Virginia
• Fifth CircuitLouisiana, Mississippi, Texas
• Sixth CircuitKentucky, Michigan, Ohio, Tennessee
• Seventh CircuitIllinois, Indiana, Wisconsin
• Eighth CircuitArkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, South Dakota
• Ninth CircuitAlaska, Arizona, California, Idaho, Montana, Nevada, Oregon, Washington, Guam, Hawaii
• Tenth CircuitColorado, Kansas, New Mexico, Oklahoma, Utah, Wyoming
• Eleventh CircuitAlabama, Florida, Georgia
• D.C. Circuitthe District of Columbia

How Criminal Center helps with federal appeals

Criminal Center handles federal criminal appeals nationwide, along with sentencing and post-conviction work. Brandon Sample, the firm's founder, is admitted to practice before the U.S. Supreme Court, twelve federal courts of appeals, and twenty federal district courts. He has also handled federal cases in courts across the country. Book a consultation and tell us what happened.

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