Appellate cases can be lost before they begin when attorneys fail to follow the unique and sometimes complex procedural rules and the impact of a case decision can rise and fall on the identification and framing of the issues. This webinar focuses on understanding the arc of an appeal from case assignment to conclusion to help attorneys avoid some of the major procedural pitfalls and provides practical advice on navigating the appellate process.

This webinar focuses on the unique ethical challenges appellate attorneys encounter in their attorney-client relationships. Topics include the nature and scope of the client’s role and rights regarding the decision to appeal and the issues to be raised in the appeal, the attorney-client relationship when an attorney is pursuing an Anders brief, responsibilities when ending appellate representation, and overall communications with the client during the appellate process.

Taking the determined set of issues as its jumping off point, this webinar provides insight on how to draft a compelling brief, which includes source citation, more on issue drafting, as well as drafting the statement of the case and the argument and making the most of oral argument.

NACDL encourages the Advisory Committee on Appellate Rules to give serious consideration to the suggestion on your April 2016 agenda to extend to 30 days from the present 14 the time for filing a defendant's notice of appeal in a federal criminal case. (This period is measured not from the date of sentencing but from the date when the written judgment is entered on the docket, which might be the sentencing day but is often anywhere from a day or two to a few weeks later.) There are many reasons why this idea has merit beyond those noted in the Reporter's memorandum.

Opinion and Order

Argument: Case started out as an excessive sentence case (the two §851s that created life mandatory mininum wouldn't apply today), but due to bad case law in Sixth Cicuit, attorney Chloe Smith smartly pivoted to more traditional/COVID arguments. After Judge Danny Reeves in the EDKY denied the motion, Chloe appealed the denial of the CR motion to the Sixth Circuit. 

The Sixth Circuit reversed and remanded the district court’s denial of compassionate release to a 90-year-old, terminally ill, bedridden defendant serving mandatory life for non-violent marijuana offense that would only be subject to a 10-year mandatory minimum today. In reversing, the Sixth Circuit found that the “district court’s analysis of the 18 U.S.C § 3553(a) factors leaves us “ ‘with a definite and firm conviction that the district court committed a clear error of judgment.’ ”

By overly emphasizing Estrada-Elias’s history of nonviolent crimes, ignoring the low likelihood that Estrada-Elias will re-offend, and mischaracterizing the reality of the gap between Estrada-Elias’s present and prior convictions, the district court engaged in a substantively unreasonable balancing of the § 3553(a) factors and therefore abused its discretion.

The court reversed and remanded for Judge Reeves to make a finding on extraordinary and compelling reasons prong, which it has assumed applied without actually holding as such.  

10th Circuit Opinion Reversed and Remanded on Jurisdiction in U.S. v. McGee

Argument: Reversing and remanding a district court's determination of its lack of jurisdiction to consider a compassionate release motion based on a broader reading of "extraordinary and compelling reasons."

U.S. v. Maumau 20-4056 (10th Cir. April 1, 2021) appealed from No. 2:08-CR-00758-TC-11 (D. Utah)

Argument: Joining the Second, Fourth, Sixth and Seventh Circuits in affirming a district court's grant of compassionate release based upon a more expansive reading of "extraordinary and compelling reasons" – here, the First Step Act's elimination of § 924(c)’s stacking provision.

Opinion from the Eleventh Circuit 

Argument: Eleventh Circuit Creates Circuit Split on Compassionate Release Criteria: In a lengthy opinion, the Eleventh Circuit split from seven sister circuits to hold that Sentencing Commission Policy Statement 1B1.13 remains applicable for a Section 3582(c)(1)(A) motion, "no matter who files it." In other words, in the Eleventh Circuit, district courts are now constrained by the restrictive definitions of “extraordinary and compelling reasons” listed in the commentary of § 1B1.13.

President Lisa Wayne's written statement to the U.S. Sentencing Commission regarding sentencing practices since the U.S. v. Booker decision.

NACDL President Chris Adams' letter to the New York state legislature regarding proposals to truly implement review of excessive sentences, suppression rulings, and streamlining the assignment of counsel in appeals as outlined in A5687/S1280, A5688/S1281, and A5689/S1279, respectively (2021).

Letter to the Judicial Conference Committee on Practice & Procedure regarding proposed rule changes to the Federal Rules of Appellate Procedure.

Letter to the Judicial Conference Standing Committee on Rules of Practice and Procedure regarding proposed changes to procedures in the Foreign Intelligence Surveillance Court.

Template SCA Privilege Motion, by Rebecca Wexler 

"It is quite true that there is enough difficulty in appealing as it is; but if there is to be no appeal at all possible the system would be intolerable." -L.J. Bowen

Appellate work is time-consuming, complex, and meaningful both for our clients and for creating precedent. Find helpful resources on appeals here.

What should a defense attorney do when a client pleads guilty, signs an appeal waiver, and then wants to appeal after sentencing? Obey the client and file a notice of appeal.