Legal References

Appeals Timeline

• Notice of appeal—filed within 14 days of entry of judgment (or within 14 days of the entry of an order on a motion under Fed. R. Crim. P. 29, 33, or 34).  F.R.A.P. 4(b).
• Order transcript (or file certificate that no transcript will be ordered) within 14 days of notice of appeal (use Transcript Information Form B).  F.R.A.P. 10(b); Local Rule 12.2.
• Court will send docketing notice (but see below)—the Acknowledgment & Notice of Appearance Form is due within 14 days.  F.R.A.P. 12(b); Local Rule 12.3.\
• Transcript filed by court reporter—within 14 days must notify court of appeals in writing as to the due date for brief (up to 91 days, unless voluminous).  Local Rule 31.2(a)(1).\
• Appellant brief filed—appellee notifies court of appeals in writing of due date for appellee brief (up to 91 days).  Local Rule 31.2(a)(1).
• Appellee brief filed:
  • Reply brief due within 14 days.  Local Rule 31.2(a)(2).
  • Oral Argument Statement Form due within 14 days.  Local Rule 34.1(a).
• Decision/Judgment Issued:
  • Petition for Rehearing or Rehearing En Banc due/filed within 14 days (cannot exceed 15 pages; no word-limit exception).  F.R.A.P. 35 & 40; Local Rules 35.1 & 40.1.
  • Mandate issues 21 days after the entry of the judgment or 7 days after order denying rehearing.  F.R.A.P. 41.
  • Petition for writ of certiorari due “within 90 days after entry of the judgment.”  Sup. Ct. R. 13(1).  The due date does not run from the date of the mandate; if a timely petition for rehearing or for rehearing en banc is filed, the due date “runs from the date of the denial of rehearing or, if rehearing is granted, the subsequent entry of judgment.”  Sup. Ct. R. 13(2).

Note:   In some cases, appeals have not been docketed with the Second Circuit in a timely manner.  Local Rule 25.2(d)(1) provides that PDFs must be submitted to newcases@ca2.uscourts.gov (link sends e-mail) where the circuit clerk has not yet issued a docketing notice.  Local Rule 25.2, however, does not apply to cases initiated after January 1, 2010, but may be the best rule where no other rule governs or where you are arguably “exempt from filing electronically” because the case has not been docketed.  See Local Rule 25.2(a)(2).

Notable Opinions

In an April 5, 2011 opinion (click here), Judge Michael Ponsor (U.S. District Court for the District of Massachusetts) held that although the defendant’s conduct predated the enactment of the Fair Sentencing Act, the court would apply the Fair Sentencing Act to a defendant charged with distributing crack cocaine, should the defendant be convicted.  In this case, the defendant, Mr. Watts, has been charged with distribution of crack cocaine—more than 5 grams, but less than 28 grams—based on conduct from 2009; his trial date is April 25, 2011.  Procedurally, the defense requested the ruling on whether, if convicted, the court would apply the Fair Sentencing Act to the defendant, after its motion to dismiss was denied.    

The Fair Sentencing Act ("FSA") became law on August 3, 2010, and changed—from 5 grams to 28 grams—the weight of crack cocaine that triggers the 5 year mandatory minimum.  The FSA has no express provision addressing whether it is to be applied retroactively to defendants whose conduct predates the enactment of the FSA but who will be sentenced after the provision’s enactment.  This question has lead to a great deal of litigation and a large number of opinions about the retroactive application of the FSA.

Judge Ponsor’s opinion is a very strong statement regarding fairness in sentencing, especially with regard to the mandatory minimums for crack cocaine.  With respect to retroactive application of the FSA, Judge Ponsor’s conclusion is that:

Congress’s obvious intent to immediately substitute the new mandatory statutes for the old in ongoing sentencing is underlined by a consideration already noted in this memorandum.  The statute of limitations for the prosecution of drug crimes is five years.  See 18 U.S.C. § 3282.  Can it possibly be that Congress intended district court judges to continue to apply a sentencing regime that it had declared unfair and contrary to our fundamental principles of justice to defendants for five more years?  The only conceivable answer to this question is “no.”  Slip Op. at 49.

Thus he concludes that that the General Savings Statute, 1 U.S.C. § 109, is not the “straightjacket” that the government urges and that he will apply the FSA to Mr. Watts if Mr. Watts is convicted.

It is only by covering his eyes and plugging his ears that any fairminded person could avoid the conclusion that Congress intended, by “fair implication,” to treat the statutory amendments, whose effect was even more unjust than the effect of the Guidelines, the same way it directed the Guidelines to be treated, that is, to mandate that the amended statutes be applied to all defendants coming before federal courts for sentencing.  Slip Op. at 42.

For its part, the Second Circuit’s opinion in United States v. Acoff (rejecting retroactive application of the Fair Sentencing Act where defendant received a below-the-mandatory-minimum sentence prior to the enactment of the FSA), is available here: http://www.ca2.uscourts.gov/decisions/isysquery/1829788f-cb0f-49f8-a113…