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Excerpted From: Georgetown University and The Georgetown Law Journal, Criminal Procedure: Appeals, 49 Georgetown Law Journal Annual Review of Criminal Procedure 1001 (2020) (175 Footnotes) (Full Document)


TheGeorgeTownLawJournalJurisdiction. Federal appellate courts generally only review final decisions of the district courts. Thus, an appeal is not allowed “from any decision which is tentative, informal or incomplete.” In criminal matters, an appeal usually may only be taken after the district court has imposed a sentence. After a notice of appeal is filed, the district court loses jurisdiction over those aspects of the case covered by the appeal and retains jurisdiction over the case only in certain circumstances. Because “a federal court always has jurisdiction to determine its own jurisdiction,” if necessary, the appellate court may reach the merits of the appeal to determine its ability to hear such a case.

In a narrow set of circumstances, a party may immediately appeal a presentencing order. In Cohen v. Beneficial Industrial Loan Corp., the Supreme Court articulated an exception to the “final judgment” rule for judgments that “finally determine claims of right separable from, and collateral to, rights asserted in the action [that are] too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated.” This exception, known as the collateral order doctrine, allows an appeal from a judgment that: (1) conclusively determines an important disputed issue; (2) is completely separate from the issue of the defendant's guilt; and (3) is effectively unreviewable on appeal from a final judgment. Additionally, all federal courts have the power to issue all writs necessary to ensure substantial justice. Finally, a defendant may immediately appeal a magistrate judge's “release or detention order, or ... a decision denying revocation or amendment of such an order.”

The Supreme Court has held that denials of five types of motions are immediately appealable under the collateral order doctrine: (1) pretrial motions to dismiss an indictment based on the Double Jeopardy Clause; (2) motions to reduce excessive bail; (3) pretrial motions to dismiss an indictment based on the Speech or Debate Clause; (4) public officials' motions for summary judgment on qualified immunity grounds if the summary judgment ruling is grounded on abstract issues of law; and (5) pretrial motions to enjoin involuntary medication. The Court has not, however, permitted immediate appeal of pretrial denials of motions alleging constitutional speedy trial violations, prosecutorial vindictiveness, grand jury procedural violations, motions to suppress evidence by defendants, or motions to disqualify defense counsel. The courts of appeals have also disallowed immediate appeals of judgments involving procedural issues, denials of motions to disqualify a prosecutor or judge, and attempts to enforce plea bargains with the government. Finally, if a defendant files a motion for return of property under Rule 41(g) of the Federal Rules of Criminal Procedure and the motion is entirely unrelated to an existing criminal prosecution, the denial of that motion is immediately appealable.

Notice of Appeal. Rule 4(b) of the Federal Rules of Appellate Procedure requires a defendant to file a notice of appeal within fourteen days after “(i) the entry of either the judgment or the order being appealed; or (ii) the filing of the government's notice of appeal.” Rule 4(b) is not jurisdictional and thus gives courts discretion to waive filing deadlines for criminal defendants. The government must file a notice of appeal within thirty days “after the later of: (i) the entry of the judgment or order being appealed; or (ii) the filing of a notice of appeal by any defendant.” A district court may extend a party's filing period for up to thirty days upon a showing of “excusable neglect or good cause.”

Federal Government Appeals. The federal government may appeal an adverse ruling in a criminal prosecution only if authorized by statute and not barred by a constitutional provision. The primary constitutional limit on government appeals is the Fifth Amendment's prohibition against double jeopardy. The Criminal Appeals Act provides statutory authority for government appeals in federal criminal prosecutions. The Act authorizes federal prosecutors to appeal orders dismissing indictments, orders suppressing evidence, post-verdict new trial orders, bail determinations, and certain other final orders.

Concurrent Sentence Doctrine. An appellate court may decline to consider the validity of a conviction if the defendant received a concurrent sentence on another valid or unchallenged count. This doctrine is inapplicable if a challenged conviction carries an additional penalty, such as a separate fine, or if it may potentially result in adverse collateral consequences. A court may also refuse to apply the doctrine if the validity of an unchallenged conviction is questioned or if conviction on multiple counts is barred by the Double Jeopardy Clause.

Some courts have vacated the unreviewed conviction to avoid the possibility that a defendant may suffer future adverse consequences. If the conviction is vacated and circumstances change, however, the government may seek reinstatement of the conviction. Because of the speculative nature of predicting the future adverse consequences of an unreviewed conviction, the Ninth Circuit has rejected the use of the concurrent sentence doctrine.

Preservation of Rights for Review. An appellate court will generally review an issue only if the appellant made a specific, timely objection at or before trial or sentencing (the “contemporaneous objection” rule). If an objection was not made, an appellate court will review the issue under the limited “plain error”standard. The contemporaneous objection requirement applies to both the government and the defendant. In trials with multiple defendants, the circuits are split on whether to limit objections to the defendant who raised the issue. Failure to comply with a state's contemporaneous objection rule may preclude federal habeas review.

Evidentiary objections and jury-instruction objections are specifically addressed in statutory rules governing the preservation of error for review. Additionally, federal rules require certain objections to be raised by pretrial motion. These include defects in the institution of the prosecution, defects in the indictment, suppression of evidence, discovery requests, and requests for severance. The circuits are split on whether the issue of unconstitutional vagueness can be raised for the first time on appeal. The contemporaneous objection rule applies to prosecutorial misconduct, judicial misconduct, sentencing errors, juror bias, and other trial errors. Claims of ineffective assistance of counsel must be preserved by an objection at trial unless special circumstances exist. A party must also make a timely, though not necessarily contemporaneous, objection to the contents of a magistrate's report.

In addition to raising specific objections at the proper time, a defendant generally must continue to assert the objections throughout the trial to preserve the issues for appeal. A motion in limine generally does not preserve a claim for appellate review. Although many guilty pleas include an express waiver or limitation on the defendant's right to appeal, Rule 11(a)(2) of the Federal Rules of Criminal Procedure permits a defendant to enter a conditional guilty plea, reserving in writing the right to appeal specified pretrial motions and withdraw the plea if the appeal is successful. Additionally, the contemporaneous objection rule does not apply to lack of subject-matter jurisdiction, when an objection at trial would have been futile or baseless under then-existing law, or when the defendant was ignorant of the facts supporting the claim raised on appeal.

Plain Error. A reviewing court may grant relief for “plain error” even if the error was not raised and preserved at trial or sentencing. In an appeal based on “plain error,” the defendant must show: (1) there was an error (2) that is “clear or obvious,” and (3) affected the defendant's “substantial rights.” To determine if a ruling affected the defendant's substantial rights, an appellate court analyzes the alleged error in the context of the entire record. Even if the defendant can satisfy these three requirements, relief is only available if the court determines that the error “seriously affect[ed] the fairness, integrity, or public reputation of judicial proceedings.” Rights or objections that were waived will not be reviewed for “plain error,” but those that were merely “forfeited” may be reviewed.

Appellate courts are more likely to find plain error if the error at trial affected the defendant's constitutional rights. Courts frequently find plain error occurred through incorrect jury instructions, improper admission of evidence, errors in sentencing, a change in law between trial and appeal, or prosecutorial misconduct. Most circuits have allowed plain error claims on other bases as well.

A court is unlikely to find plain error where the defense counsel contributed to the error, where the error concerned a fact admitted by the defendant, where the defendant failed to request curative instructions at trial, where curative instructions were given to correct the error, or where evidence against the defendant was overwhelming.

Harmless Error. Whereas plain error is a rule of appellate procedure, harmless erroris a rule of constitutional law which requires that errors affecting the substantial rights of a defendant not be disregarded. When an appellate court concludes that an error occurred during a criminal proceeding, it may still affirm the trial court's judgment by finding that the error was harmless. Harmless error analysis is conducted in order to avoid “setting aside convictions for small errors or defects that have little, if any, likelihood of having changed the result of the trial.”

If the error involved is not derived from the Constitution, it is harmless if it “did not influence the jury or had but very slight effect.”

However, if the error involved is constitutional, the court will determine whether the error was a “structural” or “trial” error, looking “not only at the right violated, but also at the particular nature, context, and significance of the violation.” Structural errors--defects that fundamentally undermine the reliability and fairness of the trial--are not subject to harmless error review and automatically require reversal. Such errors include: (1) denial of the right to a jury trial; (2) racial discrimination in jury or grand jury selection; (3) improper removal of potential jurors, for cause, in capital trials; (4) improper amendment of an indictment; (5) denial of the right to counsel; (6) denial of the right to choice of counsel due to erroneous dis qualification; (7) denial of the right to self-representation at trial; (8) denial of the right to an impartial judge; (9) denial of the right to a public trial; (10) egregious violation of the right to a fair trial; (11) certain discovery violations; and (12) erroneous jury instructions regarding reasonable doubt.

Conversely, trial errors--errors that occur during the presentation of the case--are subject to harmless error review. A trial error is harmless if a court determines beyond a reasonable doubt that the error did not contribute to the verdict. Trial errors include: (1) certain grand jury procedural violations; (2) errors in examination of prospective jurors; (3) variances between the indictment before the grand jury and the proof offered at trial; (4) misjoinder of defendants or offenses; (5) failure to determine whether a defendant's guilty plea is voluntary and that defendant understands the nature of the charges; (6) certain violations of a defendant's rights under the Fourth, Fifth, or Sixth Amendments; (7) absence of the defendant from trial proceedings; (8) juror misconduct; (9) prosecutorial misconduct; (10) improper exclusion of exculpatory evidence; (11) errors in jury instructions; and (12) sentencing errors, including both constitutional and statutory Booker errors. Individual trial errors deemed harmless may require reversal because of their cumulative effect, though curative measures taken at trial often lead an appellate court to find the error harmless.

Appellate Review of Sentences. The Sentencing Reform Act of 1984 requires that challenges to sentences be made on direct appeal. Generally, a sentencing court may revise a sentence only on remand after a successful appeal. In a narrowset of circumstances, however, a sentence may be reviewed and modified by the sentencing court itself. A sentencing court may stay a sentence if the sentence or conviction is appealed. A defendant may waive their right to appeal a sentence by plea agreement if the waiver is knowing and voluntary.

The government or the defendant may appeal a sentence that either party believes is unreasonable. In Rita v. United States, the Supreme Court held that circuit courts may establish a presumption of reasonableness for sentences within the range recommended by the Sentencing Guidelines. Regardless of whether a sentence falls within the Guidelines, it is deferentially reviewed on appeal under the abuse-of-discretion standard.

A sentence may be appealed on the grounds that it was imposed in violation of law, resulted from an incorrect application of the Sentencing Guidelines, is plainly unreasonable for an offense for which no Guideline has been established, or includes a greater fine or term of imprisonment, probation, or supervised release than the maximum specified in the applicable Guideline. An appellate court has jurisdiction to review a sentencing court's refusal to depart from the applicable Guidelines range if the sentencing court erred in concluding that it did not have discretionary authority to depart.

The government, with the personal approval of the Attorney General, the Solicitor General, or a Deputy Solicitor General, also may appeal a sentence under certain circumstances.

If the appellate court finds a sentence unreasonable on one of the above grounds, and the error is not harmless, the court must remand the case with any instructions it deems appropriate.

If the defendant or government fails to raise an alleged sentencing error at the time of sentencing, the claim will be reviewable on appeal only for plain error. An appellate court determines whether the error is plain at the time of the appeal, regardless of whether a legal question was unsettled at the time of trial. Even if the alleged sentencing error is plain, an appellate court may still affirm the sentence if the error does not “seriously affect[] the fairness, integrity or public reputation of judicial proceedings.”

Correction and Reduction of Sentence by the District Court. Following a successful appeal of the sentence, the district court is required to correct the sentence in accordance with the appellate court's findings and in a manner consistent with 18 U.S.C. § 3553. At resentencing, the district court may consider evidence of a defendant's rehabilitation since his or her prior sentencing, and such evidence may support a downward variance from the advisory Guidelines range. Rule 35 of the Federal Rules of Criminal Procedure permits a district court to reduce a sentence to reflect the defendant's subsequent substantial assistance in the investigation or prosecution of another criminal. Such reductions may fall below the statutory minimum, and may be granted only on motion by the government. A prison sentence also may be reduced for extraordinary or compelling reasons, but only on a motion by the Bureau of Prisons. A defendant or the court may move for a sentence reduction if the Sentencing Commission subsequently lowers the sentencing range for an offense and makes the amendment retroactively applicable.


The Eighth Amendment prohibits the infliction of cruel and unusual punishment upon persons convicted of a crime. The Cruel and Unusual Punishment Clause limits criminal punishment in three ways: (1) it “imposes substantive limits on what can be made criminal and punished as such;” (2) it prohibits certain kinds of punishment; and (3) it prohibits punishment “grossly disproportionate” to the severity of the offense.

In Solem v. Helm, the Supreme Court established three criteria for analyzing the proportionality of sentences: (1) a comparison of the gravity of the offense with the harshness of the penalty; (2) a comparison of the sentence with those imposed for various offenses in the same jurisdiction; and (3) a comparison of the sentence with those imposed for the same or similar offenses in other jurisdictions. In Miller v. Alabama, the Court expanded its holding in Graham v. Florida, finding that sentences of mandatory life imprisonment without parole for defendants under eighteen will always violate the Eighth Amendment.

In Harmelin v. Michigan, the Court did not agree on the proper approach to an Eighth Amendment claim under Solem: two Justices argued that the Eighth Amendment does not guarantee proportionality of sentences. The three-Justice concurrence argued that the second and third factors of Solem should only be considered “to validate an initial judgment that a sentence is grossly disproportionate to a crime.” The dissent advocated for the continued application of the three-prong Solem test, with “no one factor ... be[ing] dispositive.”

The Solem Court envisioned that invalidation of sentences based upon disproportionality would occur infrequently. Appellate courts generally do not disturb sentences imposed for noncapital felony convictions that fall within statutorily prescribed limits.

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