Federal Direct Appeals

A defendant convicted in federal court has the right to appeal the conviction and sentence to the United States Court of Appeals. For defendants convicted in the Eastern or Western District of Wisconsin, that appeal goes to the Seventh Circuit Court of Appeals in Chicago.

The deadline is short and unforgiving: in a criminal case, the notice of appeal generally must be filed within 14 days of the entry of judgment. Because the deadline is so short, it is critical to speak with appellate counsel — or ask trial counsel to file the notice of appeal — immediately after sentencing.

A federal direct appeal is limited to the existing record; it is not a retrial and no new evidence is presented. The court of appeals reviews claimed errors under different standards depending on the issue and whether it was preserved in the district court. Common issues include the denial of motions to suppress evidence, evidentiary rulings at trial, jury instructions, the sufficiency of the evidence, and errors in the application of the Sentencing Guidelines or the reasonableness of the sentence itself. Sentencing issues are a particularly frequent subject of federal appeals, because a miscalculated Guidelines range or a procedurally flawed sentencing hearing can add years to a sentence even when the conviction itself is sound.

Many federal cases are resolved by plea agreement, and most federal plea agreements contain appeal waivers. A waiver does not always end the matter: courts will not enforce a waiver that was not knowing and voluntary, and certain claims — such as a sentence above the statutory maximum — survive even a valid waiver. Whether and how an appeal can proceed after a plea requires careful review of the specific agreement and the plea colloquy.

The appeal itself is decided primarily on the written briefs, followed by oral argument before a three-judge panel. If the panel rules against the defendant, further review is possible through a petition for rehearing or rehearing en banc, and ultimately a petition for writ of certiorari to the United States Supreme Court. Issues that depend on facts outside the record — most commonly ineffective assistance of trial counsel — are ordinarily raised not on direct appeal but in a motion under 28 U.S.C. § 2255 after the direct appeal concludes.

Brad Novreske is admitted to practice in the Eastern and Western Districts of Wisconsin, the Seventh Circuit Court of Appeals, and the United States Supreme Court, and handles federal appeals at every stage.