§ 3731. Appeal by United States

In a criminal case an appeal by the United States shall lie to a court of appeals from a decision, judgment, or order of a district court dismissing an indictment or information or granting a new trial after verdict or judgment, as to any one or more counts, or any part thereof, except that no appeal shall lie where the double jeopardy clause of the United States Constitution prohibits further prosecution. An appeal by the United States shall lie to a court of appeals from a decision or order of a district court suppressing or excluding evidence or requiring the return of seized property in a criminal proceeding, not made after the defendant has been put in jeopardy and before the verdict or finding on an indictment or information, if the United States attorney certifies to the district court that the appeal is not taken for purpose of delay and that the evidence is a substantial proof of a fact material in the proceeding. An appeal by the United States shall lie to a court of appeals from a decision or order, entered by a district court of the United States, granting the release of a person charged with or convicted of an offense, or denying a motion for revocation of, or modification of the conditions of, a decision or order granting release. The appeal in all such cases shall be taken within thirty days after the decision, judgment or order has been rendered and shall be diligently prosecuted. The provisions of this section shall be liberally construed to effectuate its purposes.

§ 3732. Taking of appeal; notice; time—(Rule)

Notes

See Federal Rules of Criminal Procedure Taking appeal; notice, contents, signing; time, Rule 37(a).

§ 3733. Assignment of errors—(Rule)

Notes

See Federal Rules of Criminal Procedure Assignments of error on appeal abolished, Rule 37(a)(1). Necessity of specific objection in order to assign error in instructions, Rule 30.

§ 3734. Bill of exceptions abolished—(Rule)

Notes

See Federal Rules of Criminal Procedure Exceptions abolished, Rule 51. Bill of exceptions not required, Rule 37(a)(1).

§ 3735. Bail on appeal or certiorari—(Rule)

Notes

See Federal Rules of Criminal Procedure Bail on appeal or certiorari; application, Rules 38(c) and 46(a)(2).

§ 3736. Certiorari—(Rule)

Notes

See Federal Rules of Criminal Procedure Petition to Supreme Court, time, Rule 37(b).

§ 3737. Record—(Rule)

Notes

See Federal Rules of Criminal Procedure Preparation, form; typewritten record, Rule 39(b). Exceptions abolished, Rule 51. Bill of exceptions unnecessary, Rule 37(a)(1).

§ 3738. Docketing appeal and record—(Rule)

Notes

See Federal Rules of Criminal Procedure Filing record on appeal and docketing proceeding; time, Rule 39(c).

§ 3739. Supervision—(Rule)

Notes

See Federal Rules of Criminal Procedure Control and supervision in appellate court, Rule 39(a).

§ 3740. Argument—(Rule)

Notes

See Federal Rules of Criminal Procedure Setting appeal for argument; preference to criminal appeals, Rule 39(d).

§ 3741. Harmless error and plain error—(Rule)

Notes

See Federal Rules of Criminal Procedure Error or defect as affecting substantial rights, Rule 52. Defects in indictment, Rule 7. Waiver of error, Rules 12(b)(2) and 30.

§ 3742. Review of a sentence

• (a) A defendant may file a notice of appeal in the district court for review of an otherwise final sentence if the sentence—
  • (1) was imposed in violation of law;
  • (2) was imposed as a result of an incorrect application of the sentencing guidelines; or
  • (3) is greater than the sentence specified in the applicable guideline range to the extent that the sentence includes a greater fine or term of imprisonment, probation, or supervised release than the maximum established in the guideline range, or includes a more limiting condition of probation or supervised release under section 3563(b)(6) or (b)(11) 1 1 See References in Text note below. than the maximum established in the guideline range; or
  • (4) was imposed for an offense for which there is no sentencing guideline and is plainly unreasonable.
• (b) The Government may file a notice of appeal in the district court for review of an otherwise final sentence if the sentence—
  • (1) was imposed in violation of law;
  • (2) was imposed as a result of an incorrect application of the sentencing guidelines;
  • (3) is less than the sentence specified in the applicable guideline range to the extent that the sentence includes a lesser fine or term of imprisonment, probation, or supervised release than the minimum established in the guideline range, or includes a less limiting condition of probation or supervised release under section 3563(b)(6) or (b)(11) 1 than the minimum established in the guideline range; or
  • (4) was imposed for an offense for which there is no sentencing guideline and is plainly unreasonable.
• (c) In the case of a plea agreement that includes a specific sentence under rule 11(e)(1)(C) of the Federal Rules of Criminal Procedure—
  • (1) a defendant may not file a notice of appeal under paragraph (3) or (4) of subsection (a) unless the sentence imposed is greater than the sentence set forth in such agreement; and
  • (2) the Government may not file a notice of appeal under paragraph (3) or (4) of subsection (b) unless the sentence imposed is less than the sentence set forth in such agreement.
• (d) If a notice of appeal is filed in the district court pursuant to subsection (a) or (b), the clerk shall certify to the court of appeals—
  • (1) that portion of the record in the case that is designated as pertinent by either of the parties;
  • (2) the presentence report; and
  • (3) the information submitted during the sentencing proceeding.
• (e) Upon review of the record, the court of appeals shall determine whether the sentence—
  • (1) was imposed in violation of law;
  • (2) was imposed as a result of an incorrect application of the sentencing guidelines;
  • (3) is outside the applicable guideline range, and
    • (A) the district court failed to provide the written statement of reasons required by section 3553(c);
    • (B) the sentence departs from the applicable guideline range based on a factor that—
      • (i) does not advance the objectives set forth in section 3553(a)(2); or
      • (ii) is not authorized under section 3553(b); or
      • (iii) is not justified by the facts of the case; or
    • (C) the sentence departs to an unreasonable degree from the applicable guidelines range, having regard for the factors to be considered in imposing a sentence, as set forth in section 3553(a) of this title and the reasons for the imposition of the particular sentence, as stated by the district court pursuant to the provisions of section 3553(c); or
  • (4) was imposed for an offense for which there is no applicable sentencing guideline and is plainly unreasonable.
• (f) If the court of appeals determines that—
  • (1) the sentence was imposed in violation of law or imposed as a result of an incorrect application of the sentencing guidelines, the court shall remand the case for further sentencing proceedings with such instructions as the court considers appropriate;
  • (2) the sentence is outside the applicable guideline range and the district court failed to provide the required statement of reasons in the order of judgment and commitment, or the departure is based on an impermissible factor, or is to an unreasonable degree, or the sentence was imposed for an offense for which there is no applicable sentencing guideline and is plainly unreasonable, it shall state specific reasons for its conclusions and—
    • (A) if it determines that the sentence is too high and the appeal has been filed under subsection (a), it shall set aside the sentence and remand the case for further sentencing proceedings with such instructions as the court considers appropriate, subject to subsection (g);
    • (B) if it determines that the sentence is too low and the appeal has been filed under subsection (b), it shall set aside the sentence and remand the case for further sentencing proceedings with such instructions as the court considers appropriate, subject to subsection (g);
  • (3) the sentence is not described in paragraph (1) or (2), it shall affirm the sentence.
• (g) A district court to which a case is remanded pursuant to subsection (f)(1) or (f)(2) shall resentence a defendant in accordance with section 3553 and with such instructions as may have been given by the court of appeals, except that—
  • (1) In determining the range referred to in subsection 3553(a)(4), the court shall apply the guidelines issued by the Sentencing Commission pursuant to section 994(a)(1) of title 28 , United States Code, and that were in effect on the date of the previous sentencing of the defendant prior to the appeal, together with any amendments thereto by any act of Congress that was in effect on such date; and
  • (2) The court shall not impose a sentence outside the applicable guidelines range except upon a ground that—
    • (A) was specifically and affirmatively included in the written statement of reasons required by section 3553(c) in connection with the previous sentencing of the defendant prior to the appeal; and
    • (B) was held by the court of appeals, in remanding the case, to be a permissible ground of departure.
• (h) An appeal of an otherwise final sentence imposed by a United States magistrate judge may be taken to a judge of the district court, and this section shall apply (except for the requirement of approval by the Attorney General or the Solicitor General in the case of a Government appeal) as though the appeal were to a court of appeals from a sentence imposed by a district court.
• (i) For the purpose of this section, the term “guideline range” includes a guideline range having the same upper and lower limits.
• (j) For purposes of this section—
  • (1) a factor is a “permissible” ground of departure if it—
    • (A) advances the objectives set forth in section 3553(a)(2); and
    • (B) is authorized under section 3553(b); and
    • (C) is justified by the facts of the case; and
  • (2) a factor is an “impermissible” ground of departure if it is not a permissible factor within the meaning of subsection (j)(1).