Filing for a Federal Appeal?
There are some individuals who say that the appeal process for a federal criminal defendant who has been convicted of a federal crime is the most important part of the defense process. To put it simply, a direct appeal may challenge a conviction or sentence. It is the way in which a federal criminal defendant who has been convicted at the district court level can have his or her case reviewed by an entirely different court – an entirely different judge. Unlike the federal trial, however, no witnesses will testify and no evidence will be presented.
A federal appeal is built entirely on discovering errors in the trial record and arguing these errors in an appellate brief that is submitted with the appellate court. The issues contained in the appellate brief are then orally argued to a group of appellate judges located in the Circuit where the conviction occurred.
An appeal is started by the filing of a notice of appeal with the clerk of the court in which the case was tried within 10 days after the district court enters the judgment of conviction, or within 10 days after the government files a notice of appeal. Federal criminal defendants must remember that the 10-day time limit is mandatory and jurisdictional. For this reason alone, it is important to contact an experienced federal criminal appeals lawyer immediately upon the defendant's conviction.
We want our present and future clients to always keep in mind that the federal appellate process requires many hours of research and writing. In addition, given the court's volume of appellate cases, most federal criminal appeals take 1 year to 18 months from the filing of the notice of appeal to the issuance of a decision.
At Sullivan & Brill, our federal criminal defense lawyers continue to successfully brief and argue federal criminal appeals. Our most recent appeals are:
- United States v. Sheikel Jamison: Here, our client was originally convicted in the Southern District of Georgia for participating in a drug trafficking conspiracy under 21 U.S.C. section 846. There was a special jury verdict that the conspiracy involved more than 5 kilograms of cocaine and Jamison was sentenced to the statutorily mandatory minimum sentence of 10 years imprisonment. Our appeal partner, Steven Brill, argued to the 11th Circuit in Atlanta that this sentence must correspond to the quantity of drugs attributable to the client. The court agreed, concluding that the client must be sentenced based on an individualized finding, supportable by a preponderance of the evidence, as to the drug quantity foreseeable by the defendant. Client's sentence was vacated and his case remanded for re-sentencing. Ultimately, client was resentenced to 87 months - saving the client close to 40 months in prison.
- United States v. Jose A. Garcia Ortiz : following trial with other counsel, Mr. Garcia was sentenced to two concurrent life imprisonment terms for a Hobbs Act violation (Count One) and a violation of 18 U.S.C. § 924(j) (Count Three), along with a 10-year consecutive term for a § 924(c) violation (Count Two). The matter was remanded for re-sentencing, because Count One carries a maximum of only 20 years. We represented Mr. Garcia at the re-sentencing hearing, and he received a sentence of 51 months for Count One, concurrent to a 240-month sentence for Count Three, and a 5-year consecutive term as to Count Two. On appeal, we successfully argued that the 5-year consecutive term for Count Two violated the double jeopardy clause because the conduct was incorporated into Count Three. In fact, the government conceded the point. The matter has been remanded for re-sentencing once again.
- United States v. Javier Mitchell Hunter : Mr. Mitchell pled guilty, conditional to this appeal, to the possession with intent to distribute more than 300 kilograms of cocaine on high seas. In the appeal, we challenged the application of the Maritime Drug Law Enforcement Act (MDLEA) on jurisdictional grounds. The First Circuit had to determine whether Crawford v. Washington applied to pre-trial jurisdictional determinations under the MDLEA, or whether hearsay was permitted. Unfortunately, the appellate court declined to extend Crawford to this pre-trial circumstance.
In addition to these appellate court decisions, certain appellate cases out of the 1st Circuit, briefed, argued by Rachel Brill, and are awaiting decisions are:
- United States v. Jose Valdivia. Argued: March, 2011. Issues: Judicial Misconduct, Speedy Trial Act violation, evidentiary violations, improper expert testimony, incorrect guideline calculations.
- United States v. Carlos Ayala Lopez (click this link to hear Rachel Brill argue this matter before the 1st Circuit, on which Supreme Court Justice David Souter was sitting): Argued February, 2012. Issues: Failure to sever death penalty certified defendant, insufficiency of evidence as to first degree murder, failure to properly plead and prove firearms counts.
Contact our firm to request your free, no-obligation case consultation today.