Federal Criminal Appeal Deadline: A Motion to Reconsider Sentence Does Not Stop the Clock
A federal criminal defendant who wants to appeal a conviction or sentence must act quickly. In most federal criminal cases, the defendant has only 14 days to file a notice of appeal.
That deadline can create a serious problem when a defendant asks the district court to reconsider or correct a sentence and assumes that the appeal deadline has stopped running.
It may not have stopped.
A motion asking the district court to reconsider a federal sentence does not necessarily extend the deadline for filing a notice of appeal. Waiting for the district judge to rule on the motion can result in the loss of the defendant’s appeal.
The 14 Day Federal Criminal Appeal Deadline
Federal Rule of Appellate Procedure 4(b)(1)(A) generally requires a criminal defendant to file a notice of appeal within 14 days after the later of:
The entry of the judgment or order being appealed, or the filing of the government’s notice of appeal.
The notice of appeal is filed in the federal district court where the criminal case was prosecuted.
The deadline is short. A defendant who believes there may be grounds to challenge a conviction or sentence should therefore address the appeal immediately after sentencing.
A Rule 35 Motion Does Not Stop the Appeal Deadline
Federal Rule of Criminal Procedure 35 allows a district court to correct certain sentencing errors under limited circumstances.
Under Rule 35(a), a district court may correct a sentence resulting from an arithmetical, technical, or other clear error within the time permitted by the rule.
But filing a Rule 35(a) motion does not stop the appellate clock.
Federal Rule of Appellate Procedure 4(b)(5) expressly provides that filing a Rule 35(a) motion does not suspend the time for filing a notice of appeal from a judgment of conviction.
A defendant, therefore, should not assume that asking the sentencing judge to correct the sentence gives the defendant additional time to decide whether to appeal.
United States v. Townsend
The danger is illustrated by United States v. Townsend, 762 F.3d 641 (7th Cir. 2014).
Louis Townsend pleaded guilty to possessing a firearm as a felon and was sentenced to 71 months in federal prison.
The district court entered judgment on July 8. Townsend’s notice of appeal was therefore due 14 days later.
Before that deadline expired, Townsend filed a motion asking the district court to reconsider his sentence. The district court denied the motion.
Townsend then filed his notice of appeal after the original 14-day deadline had expired.
The government argued that the appeal was untimely.
The Seventh Circuit agreed.
Why the Motion to Reconsider Did Not Extend the Deadline
Townsend argued that his appeal deadline should run from the date the district court denied his motion for reconsideration rather than from the date judgment was entered.
The Seventh Circuit rejected that argument.
The court explained that federal law sharply limits a district court’s authority to modify a term of imprisonment after sentence has been imposed.
Because Townsend’s request concerned modification of his sentence, the applicable sentencing statutes and rules controlled. Rule 4(b)(5) specifically provides that a proceeding under Rule 35 does not suspend the deadline for filing a notice of appeal.
Townsend’s notice of appeal was eight days late.
The Seventh Circuit dismissed his appeal.
Some Post-Trial Motions Can Affect the Appeal Deadline
Not every post-judgment motion is treated the same way.
Federal Rule of Appellate Procedure 4(b)(3) identifies certain timely motions that can affect when the 14 day appeal period begins to run.
These include certain motions for:
Judgment of acquittal under Rule 29;
A new trial under Rule 33; and
Arrest of judgment under Rule 34.
A Rule 35(a) motion to correct a sentence is treated differently. Rule 4(b)(5) expressly states that it does not suspend the time for filing the notice of appeal.
The particular motion being filed, therefore, matters.
Do Not Wait to Decide Whether to Appeal
The safest approach after a federal criminal judgment is to address the appeal deadline immediately.
Filing a notice of appeal is a relatively simple procedural step. The notice generally does not require the defendant to identify every appellate issue or explain why the conviction or sentence should be reversed.
Those issues are ordinarily developed later during the appellate process.
Allowing the filing deadline to expire can create a much more serious problem.
Can a Late Federal Criminal Appeal Be Filed?
Federal Rule of Appellate Procedure 4(b)(4) provides limited relief in some circumstances.
Upon a finding of excusable neglect or good cause, the district court may extend the time for filing a notice of appeal for a period not exceeding 30 days from the expiration of the original deadline.
That provision should not be treated as an alternative filing deadline.
A defendant should not intentionally wait beyond the initial 14 days and assume that an extension will be granted. Once the applicable periods expire, obtaining appellate review can become substantially more difficult.
A Defendant Who Tells Counsel to Appeal Has Important Rights
A defendant who wants to appeal should clearly tell defense counsel to file the notice of appeal.
The Supreme Court has held that when a defendant instructs counsel to file a notice of appeal, counsel generally must do so. This principle applies even when the defendant has signed a plea agreement containing an appeal waiver.
Whether particular issues ultimately fall within an appeal waiver is different from whether counsel must preserve the requested appeal by filing the notice.
The short filing deadline makes communication between the defendant and counsel immediately after sentencing particularly important.
Protecting Your Right to a Federal Criminal Appeal
A federal criminal appeal can challenge significant legal errors involving a conviction or sentence. But even a potentially strong appellate issue may never be considered if the appeal is not properly preserved.
The lesson from United States v. Townsend is straightforward:
Do not assume that a motion asking the district court to reconsider or correct a sentence stops the federal appeal deadline.
The 14-day deadline may continue to run while that motion is pending.
Contact Federal Criminal Appeals Attorney Michael J. Petro
If you believe there is an error in your federal conviction or sentence, the time to evaluate an appeal is immediately after judgment.
Michael J. Petro represents defendants in federal criminal appeals involving convictions, sentencing errors, and other federal criminal issues.
Need to appeal a federal conviction or sentence? The deadline may be as short as 14 days. Call federal criminal appeals attorney Michael J. Petro immediately to discuss your appeal.