What will the judge look for when reviewing my appeal?

The judge who is reviewing your revocation case will look at different aspects using different legal standards.

Unless a violation is for drug or firearm possession, which requires revocation, a district court judge’s decision to revoke your federal probation or Supervised Release will be reviewed by the higher-up appellate judge for “abuse of discretion.”[1014] This means, the judge reviewing your case will only grant you an appeal if they found that the district court judge below them actually mishandled your case—by acting unreasonably or incorrectly applying the law.

The higher-up appellate judge who is reviewing your case can also review the LAW that was applied by the district court judge below as if the questions were being asked for the first time. In other words, the reviewing judge can freshly make his or her own judgment about whether the lower court correctly applied the law (this is called a “de novo” review).[1015]

If there were any FACTUAL ERRORS made in your case, the appellate judge will view those for “clear error.”[1016] This means that the court will not find a factual error unless all the evidence together shows a mistake was made.[1017] However, if you fail to object to an argument or a fact, then the judge in the appeals court may review the case under the “plain error” standard—a harder burden for you to meet (this means that the appeals court has to find that the error is extremely unjust or unfair).

Again, the SENTENCE that you received at the revocation hearing will be reviewed for reasonableness, which means that the higher-up appellate judge looks to see if the judge at the district court below abused his or her discretion in making a decision in the case, by mishandling the case (acting unreasonably or incorrectly applying the law) .[1018]

  1. 1014

    See Office of Defender Services Training Branch, Revocation of Probation and Supervised Release, http://www.ussc.gov/sites/default/files/pdf/training/online-learning-center/supporting-materials/Revocation-of-Probation-and-Supervised-Released.pdf. ↑

  2. 1015

    See Office of Defender Services Training Branch, Revocation of Probation and Supervised Release, http://www.ussc.gov/sites/default/files/pdf/training/online-learning-center/supporting-materials/Revocation-of-Probation-and-Supervised-Released.pdf. ↑

  3. 1016

    See Office of Defender Services Training Branch, Revocation of Probation and Supervised Release, http://www.ussc.gov/sites/default/files/pdf/training/online-learning-center/supporting-materials/Revocation-of-Probation-and-Supervised-Released.pdf. ↑

  4. 1017

    See U.S. v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948) (“A finding is ‘clearly erroneous’ when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.”). This standard is highly deferential, meaning most of the time the appeals court will agree with the district court. ↑

  5. 1018

    See Office of Defender Services Training Branch, Revocation of Probation and Supervised Release, http://www.ussc.gov/sites/default/files/pdf/training/online-learning-center/supporting-materials/Revocation-of-Probation-and-Supervised-Released.pdf. ↑