The federal criminal process is controlled by strict deadlines and specific rules spelled out in the Federal Rules of Appellate Procedure (FRAP). The Fifth Circuit Court of Appeals hears all federal criminal appeals in Texas as well as Louisiana and Mississippi. The court has 25 total judges—17 in active status and 8 in senior status. In the 2024-2025 judicial year, the court issued more than 2400 opinions, with nearly 1,300 of them in criminal cases These opinions flow from the 7,000 to 8,000 new appeals of all types filed with the court each year.
Controlling this volume of cases requires strict rules and deadlines. Criminal defense attorneys must know these rules and deadlines in order to get appeal filed, heard, and, ideally, decided favorably. Roughly 87 percent of all appeals are denied in the Fifth Circuit each year. Only 2 percent of the criminal appeals are granted. These are not good odds, which is exactly why professional preparedness is so important in the federal criminal appeals process.
THE DECISION TO APPEAL
Any criminal conviction is a stunning setback for a defendant. In every criminal case, a defendant may appeal a guilty verdict or the sentence imposed after conviction. The decision to appeal a conviction or sentence involves frank discussions between the trial attorney and defendant about two key issues: 1) whether there are statutory or constitutional errors in the pretrial and trial proceedings that would possibly warrant an appeals court reversal; and 2) practical factors such as the length of sentence, time for an appeal to be decided (roughly 8 months on average), and the costs involved in taking an appeal.
Caveat: The Federal Rules of Appellate Procedure (Rule 38) clearly permits appellate courts to sanction attorneys that file “frivolous” appeals. Rule 38 specifically provides that if an appeals court finds an appeal to be frivolous, the court may—after notice and opportunity to respond by defense counsel—award “just damagers and single or double costs” to the government.
A frivolous appeal is one that is “devoid of merit” and is not grounded in either law or fact.
In addition to Rule 38, the court may also under the authority of two statutes–28 U.S.C. § 1912 and 28 U.S.C. § 1927—apply sanctions when an appeal is not only frivolous but filed for purposes of delay and harassment.
That’s why the decision to appeal must be made only after thorough discussion between attorney and client. They must agree that an appeal is, to some significant degree, grounded in both law and fact.
THE PROCEDURES FOR APPEAL
The procedures for initiating and securing the successful filing of a federal criminal appeal are both time-sensitive and time-demanding. Those procedures include:
- Notice of Appeal: Under Rule 4 of the FRAP, an appeal notice must be filed in the trial court within 14 days after the entry of the judgment. The verdict is not the judgment. The defendant may file post-trial motions such as a motion for a new trial or motion for judgment of acquittal. When those motions are denied, Rule 32 of the Rules of Criminal Procedure requires the trial court to impose the sentence. With sentence imposed, the trial judge then signs a final written “judgment” of the proceedings, triggering the strict 14-day requirement to file a notice of appeal.
- Statement of Representation: Under Rule 12(b) of the FRAP, defense counsel must file a “statement of representation” within 14 days after filing the notice of appeal identifying all the parties represented on appeal.
- Order the Transcript and Assemble the Record: The trial record—transcripts, exhibits, pleadings, and motions—must be compiled for the Court of Appeals. Appellant’s counsel (defendant now known as “appellant”) typically request through financial payment that the court reporter prepare the trial transcript and then works closely with the district clerk’s office to ensure that the trial record is certified and transmitted to the appeals court.
- Briefing Schedule and Briefs: Appellant’s brief is filed first after the trial record is filed with the appeals court. While the general rule of 40 days applies to the brief, the briefing schedule set by the court will control if it sets a shorter or longer brief filing window. This opening brief raises specific trial errors and pretrial constitutional errors challenging the legality of the conviction or sentence. These issues must have been timely and properly objected to at the trial level to be heard at the appeal level. While an appeals court may hear unpreserved issues, it does so under a demanding plain error standard guided by strict procedural limits. The government will file a response brief challenging the issues raised in the appellant’s brief; and the appellant may file a reply brief addressing any factual errors or erroneous legal argument’s presented in the government’s response brief.
- Oral Argument (if granted): The appeals court may at its discretion schedule oral argument—an appearance by the appellant and government that generally lasts between 15 and 20 minutes giving both sides a chance to succinctly present legal arguments and respond to questions raised by members of the three-judge panel.
- Appellate Decision: After detailing its factual conclusions and legal analysis, the court’s decision will do one of four things: affirm the conviction/sentence; reverse the conviction; modify the sentence; or remand the case back to the trial court for specified further proceedings.
- Further Review: The appellant has two choices following an adverse appeals court decision, both of which have little chance of success: ask the appeals court within 14 days of the entry of judgment for a panel or an en banc rehearing; or ask the court for a stay of the mandate (generally not more than 90 days) in order to file a petition for certiorari review with the U.S. Supreme Court.
Its worth noting that a federal appeals court rarely considers new evidence or issues that were not properly preserved for appeal, and each circuit maintains its own local rules governing the format, length, and procedure for filing briefs.
CONCLUSION
Choosing an attorney to handle a criminal appeal is a critical decision. That attorney should have experience in handling appeals at both the federal and state levels. The John T. Floyd Law Firm has that experience. Our attorneys stand ready to provide you with representation should you so choose.
