The defendant begins an appeal from a federal criminal conviction by filing a notice of appeal with the clerk of the United States District Court in which the plea was entered or the case was tried within ten days after the district court enters the judgment of conviction, or within ten days after the government files a notice of appeal.[44]  The defendant may file a notice of appeal filed immediately after sentencing, even if the court has not yet issued the judgment.[45]

 

If the defendant files the notice of appeal after this ten-day time limit has expired, s/he loses the right to appeal.[46]  The trial court does have the power, within the first thirty days after the ten-day appeal period has expired, to grant a motion for leave to file a late notice of appeal based on excusable neglect.[47]  If the court denies the motion, the defendant can appeal from that ruling. 

 

            The pertinent portions of the court file are compiled into a clerk’s transcript on appeal, and a reporter’s transcript or settled statement (in some cases) is prepared of the oral proceedings in the trial court.  Counsel reviews the transcripts, researches all arguable issues, and files an appellant’s opening brief arguing to the appellate court why the conviction should be reversed or other relief should be granted.  The prosecution files a respondent’s or appellee’s brief, and appellant files appellant’s reply brief.  The court may or may not set the case for oral argument, after which it issues its decision.  The decision may affirm the conviction, in whole or in part, or reverse the conviction and remand the case to the trial court for further proceedings.[48]

 

[44] Fed. R. App. P. 4(b)(1)(A).

[45] Fed. R. App. P. 4(b)(2), 4(b)(3)(B).

[46] Browder v. Director, 434 U.S. 257 (1978).

[47] Fed. R. App. P. 4(b)(4).

[48] See generally California Continuing Education Of The Bar, Appeals and Writs in Criminal Cases (2d ed. 2000); California Continuing Education Of The Bar, California Criminal Law: Procedure and Practice  (5th ed. 2000), Chap. 41 (misdemeanor appeals), Chap. 42 (felony appeals); J. Smith, M. Snedeker, S. Fama, The California State Prisoner’s Handbook 422 ff. (2d ed. 1990).

Second Circuit

POST CON RELIEF - FEDERAL -- APPEAL - MOOTNESS - DEPORTATION OF APPELLANT DID NOT RENDER APPEAL FROM SENTENCE MOOT
United States v. Hamdi, ___ F.3d ___, 2005 WL 3366948 (2d Cir. Dec. 12, 2005) (completion of sentence and deportation of defendant do not render his appeal from sentence moot).

Fourth Circuit

POST-CON RELIEF - APPEAL - MOOTNESS - POSSIBILITY THAT CONVICTION MAY TRIGGER COLLATERAL IMMIGRATION CONSEQUENCE OF INADMISSIBILITY IS SUFFICIENT TO PRECLUDE MOOTNESS OF DIRECT CRIMINAL APPEAL
United States v. Madrigal-Valadez, 561 F.3d 370, 373-374 (4th Cir. Apr. 1, 2009) (possible collateral immigration consequence of inadmissibility, as a result of criminal conviction, is sufficient to prevent direct criminal appeal from conviction from becoming moot), citing Sibron v. New York, 392 U.S. 40, 55, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968) ("[t]he mere possibility that" a conviction may result in collateral consequences "is enough to preserve a criminal case from ending ignominiously in the limbo of mootness. "); cf. Parker v. Ellis, 362 U.S. 574, 577, 80 S.Ct. 909, 4 L.Ed.2d 963 (1960) (dissenting opinion).

Sixth Circuit

POST CON RELIEF " DIRECT APPEAL " MOOTNESS " COMPLETED CUSTODIAL SENTENCE
United States v. Solano-Rosales, ___ F.3d ___, 2015 WL 1283821 (6th Cir. Mar. 23, 2015) (appeal from completed custodial sentence was not moot since its validity affected length of supervised release which was still in effect).

PRACTICE ADVISORY " POST CON RELIEF " APPEAL " GUILTY PLEA MUST SPECIFICALLY PRESERVE APPELLATE RIGHTS AS TO AN ISSUE TO ALLOW APPEAL OF THAT ISSUE AFTER SENTENCE
In United States v. Mendez-Santana, ___ F.3d ___, 2011 WL 1901545 (6th Cir. May 20, 2011), the Sixth Circuit outlined what a defendant must do during plea proceedings to preserve the right to appellate review of legal issues raised before plea: Rule 11(a)(2) places an affirmative duty on the defendant to preserve any issues collateral to the determination of guilt or innocence by specifying them in the plea itself. United States v. Ormsby, 252 F.3d 844, 848 (6th Cir.2001) (quoting United States v. Pickett, 941 F.2d 411, 416 (6th Cir.1991)). To preserve the right to appeal a pre-plea motion under Rule 11(a)(2), we require 1) a conditional guilty plea in writing; 2) that reserves the right to appeal a specified pre-trial motion; and 3) that evidences the government's consent. United States v. Bell, 350 F.3d 534, 535 (6th Cir.2003). These steps are mandatory because a conditional guilty plea represents an exception to the general rule that a guilty plea admits all averments of fact in the indictment, cures all non-jurisdictional defects, waives all defenses, and relieves the prosecution from the duty of proving any facts. United States v. Diaz, 52 F. App'x 810, 811 (6th Cir.2002); Bell, 350 F.3d at 535. Therefore, a criminal defendant must be diligent in protecting his rights and faithful to the procedure dictated by Rule 11(a)(2) in order to preserve non-jurisdictional issues for appeal. Once a defendant enters a voluntary and unconditional guilty plea, our appellate review becomes sharply circumscribed: we are limited to the consideration of jurisdictional issues and the voluntariness of the guilty plea itself. Tollett v. Henderson, 411 U.S. 258, 267, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973); Bell, 350 F.3d at 535. See also United States v. Lang, 46 F. App'x 816, 817"818 (6th Cir.2002) (holding unconditional guilty plea waived right to raise on appeal a Fourth Amendment search and seizure claim). (Id. at ___.)

POST CON RELIEF " FEDERAL " APPEAL
United States v. Mendez-Santana, ___ F.3d ___, 2011 WL 1901545 (6th Cir. May 20, 2011) (defendant need not object to the F.R.Crim.P. 11(d)(1) error after the court denied his motion to withdraw the plea, or show plain error under United States v. Vonn, 535 U.S. 55, 60, 122 S.Ct. 1043, 152 L.Ed.2d 90 (2002), or show a reasonable probability that, but for the error, he would not have entered his guilty plea, under United States v. Dominguez Benitez, 542 U.S. 74, 76, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004), since those decisions do not apply here: The defendants in those cases remained silent and did not contemporaneously object when district judges failed to advise them of certain specific constitutional rights during their plea colloquies[,] whereas Mendez"Santana did not remain silent. . . . Mendez"Santana sought enforcement of his absolute right under Rule 11(d)(1) by moving to withdraw his guilty plea. That is sufficient. We will not accept the government's invitation to require a criminal defendant to doubly enforce the Rule 11(d)(1) right by requiring him to object after the district court denies the motion to withdraw.).

Ninth Circuit

POST CON RELIEF " FEDERAL " DIRECT APPEAL
United States v. Buckles, ___ F.3d ___, 2011 WL 2150992 (9th Cir. Jun. 2, 2011)(order recalling appellate court's mandate did not restart the clock for the 90"day period within which he was required to petition the Supreme Court for certiorari review of his conviction on direct appeal).

APPEALS - FEDERAL - CHALLENGE TO SUFFICIENCY OF INDICTMENT
United States v. Bird, 359 F.3d 1185 (9th Cir. March 3, 2004) (dismissing appeal challenging whether indictment alleges sufficient facts to state an offense because such challenge must await final judgment after trial; court refused to treat appeal as mandamus, since trial court did not clearly err)      Use Note: Mandamus appears to be the appropriate vehicle for redress if indictment is fatally flawed.