Federal Criminal Appeals: Preservation, Standards of Review, and the Fourteen-Day Clock

A federal criminal appeal is not a second trial. The court of appeals reads a fixed record, decides whether the district court made a legal error, and asks whether that error mattered. New evidence, new theories, and better arguments that nobody made below are almost always unavailable.

That is why appellate work starts long before the appeal. Every objection made or not made at trial decides which standard of review an issue will attract, and the standard usually decides the case. The rest is deadlines, which in criminal practice are unusually short.

The clock

1. Entry of judgment

   The appeal clock starts when the judgment is entered on the docket, not when sentence is pronounced. A notice filed after sentencing but before entry is treated as filed on the day of entry.

2. Fourteen days

   The defendant's notice of appeal is due. It is a one-page document, it does not require leave, and it does not need to identify the issues. When the government is entitled to appeal, its period is thirty days.

3. Within the same period

   Certain post-trial motions, if timely filed, reset the appeal clock so it runs from the order disposing of the last such motion. An untimely motion does not.

4. Up to thirty additional days

   The district court may extend the deadline for excusable neglect or good cause. Relief is not automatic and the request has to explain the failure.

5. After docketing

   Transcripts are ordered, the record is assembled, and a briefing schedule issues. The opening brief is where the issues are fixed; arguments omitted from it are generally forfeited.

6. After the decision

   A petition for panel rehearing or rehearing en banc runs on a short deadline, and the mandate issues afterwards. A petition for certiorari to the Supreme Court runs ninety days from the judgment or the denial of rehearing.

7. Within one year

   The limitation period for a collateral motion under section 2255, running from the latest of several statutory trigger dates — usually the date the conviction became final.

Deadline discipline: fourteen days is shorter than most people expect and shorter than the equivalent civil period. If there is any doubt about whether to appeal, file the notice and decide afterwards — withdrawing an appeal is simple, and reviving a lost one is often impossible. Trial counsel retains this duty until relieved.

Preservation is the whole game

Federal Rule of Criminal Procedure 52 sets out the two error rules. An error that does not affect substantial rights is disregarded as harmless. An error not brought to the court's attention can still be considered, but only as plain error — and the Supreme Court's framework requires the appellant to show an error, that it is clear or obvious, that it affected substantial rights, and that the court of appeals should exercise its discretion because the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.

The difference is decisive. On a preserved evidentiary objection the government must show the error was harmless; on an unpreserved one the defendant must show it changed the outcome. Same error, opposite burdens.

• Object contemporaneously, state the specific ground, and get a ruling on the record rather than a deferral.
• Renew a motion in limine at the time the evidence is offered where the pretrial ruling was conditional.
• Make an offer of proof when evidence is excluded, so the appellate court can see what the jury did not hear.
• Move for judgment of acquittal at the close of the government's case and again at the close of all evidence.
• File written objections to the presentence report within the deadline; unraised guideline errors drop to plain error.
• Request the jury instructions you want in writing and object to those given, identifying the specific language.
• Ensure sidebars, in-chambers conferences, and voir dire are transcribed, and order those transcripts for the record.
• Preserve constitutional and statutory framings of the same argument separately; a state-law objection may not preserve a federal claim.

Which standard applies

Two adjacent points matter. Constitutional errors that are preserved must be shown harmless beyond a reasonable doubt, a heavier burden than the ordinary harmlessness standard. And some issues have their own procedural vehicles: a challenge to the place of trial engages venue rules that must be raised early or are waived, and a suppression argument must have been litigated below on the specific ground now advanced — see our brief on Miranda and custodial interrogation for how that record is built.

What can be appealed, and what waivers cover

Appeals normally lie from a final judgment. Interlocutory review is narrow: a small set of collateral orders, certain government appeals authorized by statute, and detention decisions. A defendant who pleads guilty gives up most trial-related claims by the plea itself, which is why a conditional plea reserving a specific pretrial issue is the standard method of preserving a suppression ruling.

Appeal waivers appear in most federal plea agreements and are enforced where the record shows the defendant understood them. Common carve-outs include claims of ineffective assistance of counsel, prosecutorial misconduct, a sentence above a stated ceiling, and claims that cannot be waived as a matter of law. Read the waiver's exact language before filing; the notice of appeal should still be filed even where a waiver appears to bar the issue, because enforcement is for the court of appeals to decide.

Release pending appeal is available but limited: the defendant must not be a flight or safety risk and the appeal must raise a substantial question likely to result in reversal, a new trial, or a materially reduced sentence. Where the defendant is a non-citizen, a completed sentence can lead directly to immigration custody, sometimes under mandatory detention provisions, so the immigration consequence of an affirmance should be mapped before the appeal is briefed.

Direct appeal versus collateral review

A section 2255 motion is filed in the district court that imposed the sentence and raises claims that fall outside the direct appeal — most commonly ineffective assistance of counsel, which usually requires facts outside the trial record and is therefore rarely resolvable on direct appeal. The limitation period is one year, gatekeeping rules restrict second or successive motions, and a certificate of appealability is needed to appeal a denial.

State convictions run a parallel path: direct appeal in the state system, state post-conviction proceedings, then federal habeas review, which layers on exhaustion requirements and a deferential standard toward reasonable state court decisions. The two tracks are frequently confused, and missing a state deadline can foreclose the federal one.

Questions the desk gets

Can new evidence be presented on appeal?

No. The court of appeals reviews the record made below. Newly discovered evidence is addressed by a motion for a new trial in the district court, on its own deadline and standard, or in some circumstances by a collateral motion. If evidence exists that was never presented, the question is which trial-level vehicle fits, not whether the appellate court will take it.

What happens if counsel sees no viable issue?

Appointed counsel who concludes after a conscientious review that an appeal would be wholly frivolous may follow the procedure the Supreme Court approved in 1967: file a brief identifying anything in the record that might arguably support the appeal, move to withdraw, and give the client an opportunity to file a personal brief. The court then reviews the record itself. Several states have adopted variants of this procedure.

Does winning an appeal mean the case is over?

Rarely. The most common outcomes are vacatur and remand for resentencing, or a new trial. An outright reversal with instructions to enter a judgment of acquittal — normally available only on sufficiency grounds — ends the prosecution, and that is uncommon. Even a successful appeal usually leaves the conviction's collateral consequences in place until the remand is resolved.

Is restitution appealable separately?

It is part of the judgment and is reviewed on the same appeal, with legal questions reviewed de novo and amount findings for clear error. Because the order is enforceable for decades, an error in the calculation is worth challenging even where the custodial sentence is not — the enforcement machinery is set out in our brief on restitution orders and enforcement.

Sequencing the work

File the notice first and analyse later. Then order the full transcript, including sidebars and voir dire, before deciding what the issues are — the record routinely contains preserved objections nobody remembers making. Choose two or three strong issues rather than ten weak ones, and be explicit in the brief about which standard of review governs each, because a court that identifies the wrong standard often decides the wrong case.

Sentencing issues remain the most productive category on appeal; the calculation framework is set out in our brief on federal sentencing, and the waiver terms that limit what can be raised are covered in plea agreements and collateral consequences. More sits on the Consumer & Criminal Procedure desk. This brief describes federal appellate practice as of mid-2026; state systems differ on deadlines, vehicles, and standards. It is general information, not legal advice.