The United States Court of Appeals for the Tenth Circuit sits at the historic Byron White United States Courthouse in Denver, Colorado, and exercises appellate jurisdiction over eight federal judicial districts across six states: the District of Colorado, the District of Kansas, the District of New Mexico, the Eastern, Northern, and Western Districts of Oklahoma, the District of Utah, and the District of Wyoming.
Governing Authority
28 U.S.C. §§ 41, 1291 · 18 U.S.C. § 3742
Standard of Review
Appellant's Appendix & Mandatory Brief Attachments (10th Cir. R. 28.2 & 30.1)
Primary Record Focus
Byron White United States Courthouse (1823 Stout Street, Denver, CO)
Overview of Criminal Appeals in the Tenth Circuit
Tenth Circuit criminal appellate practice covers a diverse docket—including major Indian Country prosecutions in the Eastern, Northern, and Western Districts of Oklahoma and the District of New Mexico following McGirt v. Oklahoma, 591 U.S. 894 (2020), complex white-collar and securities prosecutions from Denver and Salt Lake City, Fourth Amendment highway interdiction and suppression appeals from Kansas, Colorado, and Utah, and intensive sentencing Guidelines litigation.
Primary Courthouse & Sittings: Byron White United States Courthouse (1823 Stout Street, Denver, CO).
Originating Federal District Courts in the Tenth Circuit
The United States Court of Appeals for the Tenth Circuit exercises appellate jurisdiction over final criminal judgments, sentences, and post-conviction orders entered in the following 8 federal judicial districts (CO · KS · NM · OK · UT · WY):
- District of Colorado (D. Colo.)
- District of Kansas (D. Kan.)
- District of New Mexico (D.N.M.)
- Eastern District of Oklahoma (E.D. Okla.)
- Northern District of Oklahoma (N.D. Okla.)
- Western District of Oklahoma (W.D. Okla.)
- District of Utah (D. Utah)
- District of Wyoming (D. Wyo.)
Major Federal Court Cities in the Tenth Circuit: Denver · Salt Lake City · Albuquerque · Las Cruces · Santa Fe · Oklahoma City · Tulsa · Muskogee · Wichita · Kansas City (KS) · Topeka · Cheyenne · Casper.
Appealing a Federal Conviction or Sentence in the Tenth Circuit
The Tenth Circuit enforces one of the strictest preservation-citation and plain-error briefing rules in the country. Under Tenth Circuit Rule 28.1(A), for every single issue raised in the brief, the appellant must cite the precise pages in the Appendix where the issue was raised in the district court and where it was ruled upon. Furthermore, under rich Tenth Circuit precedent (e.g., United States v. Leffler, 942 F.3d 1192 (10th Cir. 2019); Richison v. Ernest Group, Inc., 634 F.3d 1123 (10th Cir. 2011)), if an issue was not preserved in the district court and the appellant fails to argue all four prongs of plain error in the opening brief (or at least thoroughly in reply if preservation is contested), the Tenth Circuit deems the claim 'effectively waived' and refuses to review it at all!
Equally important, under Tenth Circuit Rule 30.1(B)(1), when an appeal is handled by retained counsel (or appointed counsel in non-record-on-appeal posture), the appellant must file an Appellant's Appendix containing all portions of the record necessary for the court to decide every issue—because the Tenth Circuit will decline to consider an issue if the record materials needed to evaluate it are omitted from the Appendix.
How Counsel Prepares the Appellant's Appendix and Brief Attachments in the Tenth Circuit
Under Tenth Circuit Rule 28.2(A), the appellant's opening brief must attach copies of the district court's judgment or order under review, all written opinions or orders explaining the ruling, the pertinent transcript pages containing any oral ruling or sentencing explanation, and all challenged jury instructions.
Under Tenth Circuit Rule 30.1, the Appellant's Appendix must be consecutively paginated (`App. Vol. I at 45`) and arranged chronologically starting with the district court docket sheet, indictment, relevant motions/responses, complete necessary transcripts, and judgment.
Key Doctrinal & Procedural Considerations in the Tenth Circuit
Effective appellate advocacy in the Tenth Circuit requires aligning every issue in the opening and reply briefs with binding circuit precedent and local rules:
- The Tenth Circuit 'Richison / Leffler plain-error waiver' trap: failing to explicitly brief all four prongs of Rule 52(b) plain error on an unpreserved issue waives appellate review altogether.
- Mandatory 10th Cir. R. 28.1(A) record-preservation citations for every issue and mandatory 10th Cir. R. 28.2(A) brief attachments.
- Major Crimes Act / Indian Country jurisdictional, evidentiary, and assimilate-crimes litigation following McGirt v. Oklahoma in E.D. Okla., N.D. Okla., W.D. Okla., and D.N.M.
- Three-part appellate waiver test under United States v. Hahn, 359 F.3d 1315 (10th Cir. 2004) (en banc).
- Strict requirement under 10th Cir. R. 30.1(B)(3) to include the complete trial transcript in the Appendix whenever sufficiency of the evidence is challenged.
Mistakes to Avoid in a Tenth Circuit Criminal Appeal
- Omitting a fallback four-prong Rule 52(b) plain-error argument in the opening brief on any issue where preservation could possibly be disputed by the government (United States v. Leffler).
- Challenging the sufficiency of the evidence under Rule 29 without including the entire trial transcript in the Appellant's Appendix as required by 10th Cir. R. 30.1(B)(3).
- Failing to attach the oral transcript excerpts containing the district judge's ruling or sentencing explanation directly to the opening brief under 10th Cir. R. 28.2(A).
- Conceding a plea waiver without analyzing the three-part en banc framework of United States v. Hahn, 359 F.3d 1315 (10th Cir. 2004).
Frequently Asked Questions
Which eight federal judicial districts appeal to the Tenth Circuit?
The Tenth Circuit hears appeals from eight federal districts across six states: the District of Colorado, the District of Kansas, the District of New Mexico, the Eastern, Northern, and Western Districts of Oklahoma, the District of Utah, and the District of Wyoming.
What is the Tenth Circuit rule on briefing plain error?
Under Tenth Circuit precedent (such as United States v. Leffler, 942 F.3d 1192 (10th Cir. 2019)), if a defendant did not preserve an objection in the district court and fails to argue the four prongs of Rule 52(b) plain error on appeal, the Tenth Circuit treats the failure to argue plain error as an 'effective waiver' of the claim and declines to review it at all.
How does the Tenth Circuit evaluate plea agreement appeal waivers?
Under United States v. Hahn, 359 F.3d 1315 (10th Cir. 2004) (en banc), the Tenth Circuit applies a three-prong test: (1) whether the disputed appeal falls within the scope of the waiver of appellate rights; (2) whether the defendant knowingly and voluntarily waived his appellate rights; and (3) whether enforcing the waiver would result in a miscarriage of justice.
Where are Tenth Circuit oral arguments held?
Oral arguments before the Tenth Circuit are held at the Byron White United States Courthouse in Denver, Colorado.
Attorney Review & Contribution
Erik Friis — Federal & California Criminal Defense Attorney
California State Bar No. 189830 · Admitted to the U.S. Court of Appeals for the Ninth Circuit and U.S. District Court for the Southern District of California.
Erik Friis contributes legal expertise and attorney oversight to Federal Criminal Appeals Group, supporting content concerning federal criminal appeals, post-conviction relief, and related federal criminal proceedings.