Title 18 — Crimes and Criminal ProcedureRelease 119-73not60
§3742 Review of a Sentence
Title 18 › Part II— CRIMINAL PROCEDURE › Chapter 235— APPEAL › § 3742
Summary
A defendant or the Government can ask a higher court to review a final criminal sentence. A defendant may appeal if the sentence broke the law, used the sentencing rules wrong, exceeded the guideline range (including larger fines, prison time, probation, or stricter supervised release or probation conditions under section 3563(b)(6) or (b)(11)), or if there is no guideline and the sentence is plainly unreasonable. The Government may appeal for similar reasons, including if the sentence is below the guideline range (including smaller fines, prison time, probation, or less strict conditions). For plea deals that list a specific sentence under rule 11(e)(1)(C), a defendant can only appeal for being given a higher sentence than the deal, and the Government can only appeal for a lower sentence than the deal. When an appeal is filed, the trial court clerk must send the parts of the record the parties pick, the presentence report, and what was given at sentencing to the appeals court. The appeals court checks whether the sentence broke the law, misapplied the guidelines, fell outside the guideline range for listed reasons (like no required written reasons, a departure based on an improper factor, or an unreasonable departure given the section 3553 factors), or is plainly unreasonable when no guideline applies. If the appeals court finds a problem, it can send the case back for more sentencing with instructions. On remand, the district court must follow section 3553 and use the guidelines that were in effect at the time of the original sentence (including any congressional changes), and it cannot base a new departure on a ground that was not previously written and approved on appeal. A magistrate judge’s sentence can be appealed to a district judge the same way. A permissible departure factor must meet three tests (advance 3553(a)(2) goals, be allowed under 3553(b), and be supported by the case facts); anything that does not meet those tests is impermissible.
Full Legal Text
Title 18, §3742
Crimes and Criminal Procedure — Source: USLM XML via OLRC
(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) 11 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).
Legislative History
Notes & Related Subsidiaries
Editorial Notes
References in Text
section 3563(b)(6) or (b)(11), referred to in subsecs. (a)(3) and (b)(3), was renumbered section 3563(b)(5) or (b)(10) by Pub. L. 104–132, title II, § 203(2)(B), Apr. 24, 1996, 110 Stat. 1227. The Federal Rules of Criminal Procedure, referred to in subsec. (c), are set out in the Appendix of this title. ConstitutionalityFor information regarding the constitutionality of certain provisions of this section, as added and amended by section 401(d)(2), (e) of Pub. L. 108–21, see the Table of Laws Held Unconstitutional in Whole or in Part by the Supreme Court on the Constitution Annotated website, constitution.congress.gov.
Amendments
2003—Subsec. (e). Pub. L. 108–21, § 401(d)(2), in concluding provisions, substituted “, except with respect to determinations under subsection (3)(A) or (3)(B), shall give due deference to the district court’s application of the guidelines to the facts. With respect to determinations under subsection (3)(A) or (3)(B), the court of appeals shall review de novo the district court’s application of the guidelines to the facts” for “shall give due deference to the district court’s application of the guidelines to the facts”. Subsec. (e)(3). Pub. L. 108–21, § 401(d)(1), amended par. (3) generally. Prior to amendment, par. (3) read as follows: “is outside the applicable guideline range, and is unreasonable, having regard for— “(A) the factors to be considered in imposing a sentence, as set forth in chapter 227 of this title; and “(B) the reasons for the imposition of the particular sentence, as stated by the district court pursuant to the provisions of section 3553(c); or”. Subsec. (f). Pub. L. 108–21, § 401(d)(3)(A), struck out “the sentence” before dash at end of introductory provisions. Subsec. (f)(1). Pub. L. 108–21, § 401(d)(3)(B), inserted “the sentence” before “was imposed”. Subsec. (f)(2). Pub. L. 108–21, § 401(d)(3)(C), amended par. (2) generally. Prior to amendment, par. (2) read as follows: “is outside the applicable guideline range and is unreasonable or 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; “(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;”. Subsec. (f)(3). Pub. L. 108–21, § 401(d)(3)(D), inserted “the sentence” before “is not described”. Subsecs. (g) to (i). Pub. L. 108–21, § 401(e), added subsec. (g) and redesignated former subsecs. (g) and (h) as (h) and (i), respectively. Subsec. (j). Pub. L. 108–21, § 401(f), added subsec. (j). 1994—Subsec. (b). Pub. L. 103–322 struck out comma after “Government” in introductory provisions. 1990—Subsec. (b). Pub. L. 101–647, § 3501, struck out “, with the personal approval of the Attorney General or the Solicitor General” after “The Government” in introductory provisions and inserted at end “The Government may not further prosecute such appeal without the personal approval of the Attorney General, the Solicitor General, or a deputy solicitor general designated by the Solicitor General.” Subsec. (g). Pub. L. 101–647, § 3503, inserted “(except for the requirement of approval by the Attorney General or the Solicitor General in the case of a Government appeal)” after “and this section shall apply”. 1988—Subsec. (a)(2). Pub. L. 100–690, § 7103(a)(1), struck out “issued by the Sentencing Commission pursuant to 28 U.S.C. 994(a)” after “guidelines”. Subsec. (a)(3). Pub. L. 100–690, § 7103(a)(2), added par. (3) and struck out former par. (3) which read as follows: “was imposed for an offense for which a sentencing guideline has been issued by the Sentencing Commission pursuant to 28 U.S.C. 994(a)(1), and the sentence is greater than— “(A) the sentence specified in the applicable guideline to the extent that the sentence includes a greater fine or term of imprisonment or term of supervised release than the maximum established in the guideline, or includes a more limiting condition of probation or supervised release under section 3563(b)(6) or (b)(11) than the maximum established in the guideline; and “(B) the sentence specified in a plea agreement, if any, under Rule 11(e)(1)(B) or (e)(1)(C) of the Federal Rules of Criminal Procedure; or”. Subsec. (a)(4). Pub. L. 100–690, § 7103(a)(4), added par. (4) and struck out former par. (4) which read as follows: “was imposed for an offense for which no sentencing guideline has been issued by the Sentencing Commission pursuant to 28 U.S.C. 994(a)(1) and is plainly unreasonable or greater than the sentence specified in a plea agreement under Rule 11(e)(1)(B) or (e)(1)(C) of the Federal Rules of Criminal Procedure.” Subsec. (b). Pub. L. 100–690, § 7103(a)(5), inserted “, with the personal approval of the Attorney General or the Solicitor General,” after “The Government” in introductory provisions, and struck out concluding provisions which read as follows: “and the Attorney General or the Solicitor General personally approves the filing of the notice of appeal.” Subsec. (b)(2). Pub. L. 100–690, § 7103(a)(1), struck out “issued by the Sentencing Commission pursuant to 28 U.S.C. 994(a)” after “guidelines”. Subsec. (b)(3). Pub. L. 100–690, § 7103(a)(3), added par. (3) and struck out former par. (3) which read as follows: “was imposed for an offense for which a sentencing guideline has been issued by the Sentencing Commission pursuant to 28 U.S.C. 994(a)(1), and the sentence is less than— “(A) the sentence specified in the applicable guideline to the extent that the sentence includes a lesser fine or term of imprisonment or term of supervised release than the minimum established in the guideline, or includes a less limiting condition of probation or supervised release under section 3563(b)(6) or (b)(11) than the minimum established in the guideline; and “(B) the sentence specified in a plea agreement, if any, under Rule 11(e)(1)(B) or (e)(1)(C) of the Federal Rules of Criminal Procedure; or”. Subsec. (b)(4). Pub. L. 100–690, § 7103(a)(5)(A), added par. (4) and struck out former par. (4) which read as follows: “was imposed for an offense for which no sentencing guideline has been issued by the Sentencing Commission pursuant to 28 U.S.C. 994(a)(1) and is plainly unreasonable or less than the sentence specified in a plea agreement under Rule 11(e)(1)(B) or (e)(1)(C) of the Federal Rules of Criminal Procedure;”. Subsec. (c). Pub. L. 100–690, § 7103(a)(8), added subsec. (c). Former subsec. (c) redesignated (d). Subsec. (d). Pub. L. 100–690, § 7103(a)(8), redesignated former subsec. (c) as (d). Former subsec. (d) redesignated (e). Pub. L. 100–690, § 7103(a)(6), (7), substituted “applicable guideline range” for “range of the applicable sentencing guideline” in par. (3) and inserted “and shall give due deference to the district court’s application of the guidelines to the facts” after “are clearly erroneous” in concluding provisions. Subsec. (e). Pub. L. 100–690, § 7103(a)(8), redesignated former subsec. (d) as (e). Former subsec. (e) redesignated (f). Subsec. (e)(2). Pub. L. 100–690, § 7103(a)(6), substituted “applicable guideline range” for “range of the applicable sentencing guideline”. Subsecs. (f), (g). Pub. L. 100–690, § 7103(a)(8), redesignated former subsecs. (e) and (f) as (f) and (g), respectively. Subsec. (h). Pub. L. 100–690, § 7103(a)(9), added subsec. (h). 1987—Subsec. (a)(4). Pub. L. 100–182, § 5(1), substituted “and is plainly unreasonable or greater than the sentence specified in a plea agreement under” for “and is greater than the sentence specified in a plea agreement, if any, under”. Subsec. (b)(4). Pub. L. 100–182, § 5(2), substituted “and is plainly unreasonable or less than the sentence specified in a plea agreement under” for “and is less than the sentence specified in a plea agreement, if any, under”. Subsec. (d)(4). Pub. L. 100–182, § 5(3), added par. (4). Subsec. (e)(2). Pub. L. 100–182, § 5(4), inserted “or was imposed for an offense for which there is no applicable sentencing guideline and is plainly unreasonable” in introductory provisions. Subsec. (e)(2)(A), (B). Pub. L. 100–182, § 5(5), substituted “and” for “the court shall” before “remand”. Subsec. (e)(3). Pub. L. 100–182, § 6, amended par. (3) generally. Prior to amendment, par. (3) read as follows: “was not imposed in violation of law or imposed as a result of an incorrect application of the sentencing guidelines, and is not unreasonable, it shall affirm the sentence.” Subsec. (f). Pub. L. 100–182, § 4, added subsec. (f). 1986—Subsec. (e)(1). Pub. L. 99–646, § 73(a)(1), substituted provision directing the court to remand the case for further sentencing proceedings with such instructions as the court considers appropriate, for provision directing the court to remand the case for further sentencing proceedings or correct the sentence. Subsec. (e)(2)(A). Pub. L. 99–646, § 73(a)(2), substituted provision directing the court to remand the case for further sentencing proceedings with such instructions as the court considers appropriate for provision directing the court to remand the case for imposition of a lesser sentence, remand the case for further sentencing proceedings, or impose a lesser sentence. Subsec. (e)(2)(B). Pub. L. 99–646, § 73(a)(2), substituted provision directing the court to remand the case for further sentencing proceedings with such instructions as the court considers appropriate, for provision directing the court to remand the case for imposition of a greater sentence, remand the case for further sentencing proceedings, or impose a greater sentence.
Statutory Notes and Related Subsidiaries
Change of Name
Words “Magistrate Judge” and “United States magistrate judge” substituted for “Magistrate” and “United States magistrate”, respectively, in subsec. (g) pursuant to section 321 of Pub. L. 101–650, set out as a note under section 631 of Title 28, Judiciary and Judicial Procedure.
Effective Date
of 1987 AmendmentAmendment by Pub. L. 100–182 applicable with respect to offenses committed after Dec. 7, 1987, see section 26 of Pub. L. 100–182, set out as a note under section 3006A of this title.
Effective Date
Section effective Nov. 1, 1987, and applicable only to offenses committed after the taking effect of this section, see section 235(a)(1) of Pub. L. 98–473, set out as a note under section 3551 of this title.
Reference
Citations & Metadata
Citation
18 U.S.C. § 3742
Title 18 — Crimes and Criminal Procedure
Last Updated
Apr 5, 2026
Release point: 119-73not60