Criminal Law

Appealing a Criminal Sentence

By Thomas Seigel, Attorney and Former Federal Prosecutor
Sentencing appeals sometimes succeed when the judge has made errors in following the law or applying the facts. But the error must be significant in order to trigger a resentencing.

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Defendants generally have a right to appeal their sentences to a higher court, but in most cases, those courts will not disturb the decision of the sentencing judge. Criminal statutes typically provide a range of punishments for each criminal conviction, including the amount of incarceration, fines, and probation. As long as a judge sticks within the provided range, an appeals court will not overturn a sentence unless it suffers from one of a limited number of errors, explained below.

Can I File a Sentencing Appeal?

If you have been convicted at trial, you will have the right to appeal both your conviction and sentence at the same time. You’ll have a limited window of time to file your notice of appeal with the sentencing court; usually attorneys file the notice as part of their representation (this doesn’t mean that they will represent you for the appeal itself, however).

If you pled guilty pursuant to a plea bargain, you may have agreed to waive your right to appeal your sentence as long as it stayed within the bargain’s agreed-upon range. (The judge should have advised you of this result when you entered your plea.) If the judge does not adhere to the terms of the bargain, however, the appellate court will normally allow you to pursue your appeal.

Appealing Legal Errors at Sentencing

Sentencing appeals with the best chance of success involve cases where the judge has made a mistake in applying the law. If a judge has applied the wrong sentencing factors, the wrong penalty provisions, or ignored favorable (mitigating) factors that the law requires to be taken into consideration, an appeals court will not give the lower court judge the benefit of the doubt.

For example, if the law requires a judge to examine how sentencing might affect a defendant with a serious medical condition but the judge denies any duty to consider that factor, an appeal of the sentence is likely to be successful.

In cases involving legal errors, the higher court will vacate, or set aside the sentence, and the trial judge will be ordered to re-sentence the defendant in accordance with the applicable law. As long as the judge correctly follows the law at resentencing, however, nothing prevents the judge from imposing the same sentence or an even higher sentence the second time around. For this reason, it is important to discuss the benefits and risks of a sentencing appeal with your counsel.

Appealing Factual Errors

Sentencing judges often state, in open court, the evidence introduced at trial or during a sentencing hearing that they have relied upon in making their sentencing decisions (these are known as “findings of fact”). If a trial court makes findings of fact during a sentence and one or more of those findings is mistaken, you may appeal on those grounds. However, an appeals court might not require re-sentencing if it believes that the factual errors were not significant to the ultimate sentence.

For example, a sentencing judge may have increased a sentence based on two instances of threats to witnesses. If the appeals court concludes that one instance was supported by sufficient findings of fact but the other one was not, the appeal will not succeed where the same sentencing enhancement would apply even without the second unproven incident. For this reason, an appeal based on factual mistakes at sentencing must demonstrate that the errors made by the sentencing judge likely had a meaningful impact on the sentence imposed.

Appealing a Harsh Sentence

Appeals based on the severity of a sentence rarely succeed. However, if you can demonstrate that the sentence is a very significant departure from the normal sentence in similar circumstances, you may be able to persuade an appeals court to send the case back to the judge for resentencing. These types of appeals are much more likely to be successful if you can show that the judge had some prejudice or bias that resulted in an unduly harsh penalty. If you succeed, the appeals court would likely send the case to a different judge for re-sentencing.

Questions to ask Your Lawyer

  • Does my plea bargain give me any right to appeal?
  • How long do I have to decide whether to file an appeal?
  • Will you represent me on my appeal?
  • If I win the sentencing appeal, can the sentencing judge give me a longer period of incarceration at re-sentencing?
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