Third Circuit Federal Criminal Appeals

Overview of Criminal Appeals in the Third Circuit

Indeed, the Third Circuit's en banc decision in United States v. Nasir, 17 F.4th 459 (3d Cir. 2021) (en banc), helped spearhead the national movement applying Kisor v. Wilkie to reject Sentencing Commission commentary that expands unambiguous Guidelines text (such as excluding inchoate offenses from career-offender predicates under U.S.S.G. § 4B1.2 and rejecting uncodified 'intended loss' expansions under § 2B1.1 in United States v. Banks, 55 F.4th 246 (3d Cir. 2022)).

Primary Courthouse & Sittings: James A. Byrne United States Courthouse (601 Market Street, Philadelphia, PA).

Originating Federal District Courts in the Third Circuit

The United States Court of Appeals for the Third Circuit exercises appellate jurisdiction over final criminal judgments, sentences, and post-conviction orders entered in the following 6 federal judicial districts (DE · NJ · PA · VI):

• District of Delaware (D. Del.)
• District of New Jersey (D.N.J.)
• Eastern District of Pennsylvania (E.D. Pa.)
• Middle District of Pennsylvania (M.D. Pa.)
• Western District of Pennsylvania (W.D. Pa.)
• District of the Virgin Islands (D.V.I.)

Major Federal Court Cities in the Third Circuit: Philadelphia · Newark · Trenton · Camden · Pittsburgh · Harrisburg · Scranton · Wilmington · St. Thomas · St. Croix.

Convicted or Sentenced in PA, NJ, DE, or the Virgin Islands? Key Third Circuit Rules

In the Third Circuit, sentencing appeals are evaluated against the mandatory three-step sentencing process established in United States v. Gunter, 462 F.3d 237 (3d Cir. 2006), and United States v. Tomko, 562 F.3d 558 (3d Cir. 2009) (en banc): District courts must (1) calculate the defendant's Guidelines sentence precisely as they would have before Booker; (2) formally rule on the motions of both parties and state on the record whether they are granting a departure and how that calculation affects the initial Guidelines calculation; and (3) exercise their discretion by considering the relevant 18 U.S.C. § 3553(a) factors thoroughly and meaningfully addressing every colorable mitigation argument.

Furthermore, in United States v. Flores-Mejia, 759 F.3d 253 (3d Cir. 2014) (en banc), the Third Circuit held that a defendant must raise a procedural objection to the adequacy of the district court's § 3553(a) explanation after the sentence is pronounced at the hearing in order to avoid plain-error review on appeal.

How Counsel Prepares the Appendix and Brief Under Third Circuit Local Appellate Rules

Under Third Circuit Local Appellate Rule (L.A.R.) 30.3 and 32.2(c), the appendix is divided into volumes, and Volume I of the Appendix—containing the Notice of Appeal, the judgment and order being appealed, the district court's opinion or oral sentencing explanation, and any relevant magistrate report—must be bound directly to the back of the appellant's opening brief.

Remaining record materials (indictment, relevant docket entries, trial and sentencing transcript excerpts, and exhibits) are compiled in subsequent Joint Appendix volumes, while the Presentence Investigation Report and sealed documents are submitted in a separate sealed volume under 3d Cir. L.A.R. 30.3(c).

Key Doctrinal & Procedural Considerations in the Third Circuit

Effective appellate advocacy in the Third Circuit requires aligning every issue in the opening and reply briefs with binding circuit precedent and local rules:

• Pioneering Third Circuit precedent limiting deference to U.S.S.G. commentary under Kisor (United States v. Nasir (en banc) on § 4B1.2 inchoate offenses; United States v. Banks on § 2B1.1 actual vs. intended loss).
• Mandatory three-step sentencing compliance under United States v. Gunter and en banc review standards under United States v. Tomko.
• Post-pronouncement procedural objection requirement under United States v. Flores-Mejia (en banc).
• Mandatory binding of Appendix Volume I to the back of the appellant's brief under 3d Cir. L.A.R. 30.3 and 32.2(c).
• Three-part appellate waiver enforceability standard under United States v. Khattak, 273 F.3d 557 (3d Cir. 2001).

Mistakes to Avoid in a Third Circuit Criminal Appeal

• Overlooking a United States v. Banks challenge when a District of New Jersey or Pennsylvania district court calculated fraud loss under U.S.S.G. § 2B1.1 using 'intended loss' where actual pecuniary loss was zero or lower.
• Overlooking a United States v. Nasir challenge when a conspiracy or attempt conviction was used to trigger career-offender or enhanced firearms base offense levels.
• Failing to bind Volume I of the Appendix directly to the appellant's brief as required by 3d Cir. L.A.R. 32.2(c).
• Confusing Flores-Mejia (which requires a post-pronouncement objection to procedural failure to explain the sentence) with Holguin-Hernandez (which preserves substantive reasonableness).

Frequently Asked Questions

Controlling Statutes, Rules & Authorities