§ 3742. — Review of a sentence.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 18USC3742]
TITLE 18--CRIMES AND CRIMINAL PROCEDURE
PART II--CRIMINAL PROCEDURE
CHAPTER 235--APPEAL
Sec. 3742. Review of a sentence
(a) Appeal by a Defendant.--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\ than the maximum established in the
guideline range; or
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\1\ See References in Text note below.
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(4) was imposed for an offense for which there is no sentencing
guideline and is plainly unreasonable.
(b) Appeal by the Government.--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.
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.
(c) Plea Agreements.--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) Record on Review.--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) Consideration.--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 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
(4) was imposed for an offense for which there is no applicable
sentencing guideline and is plainly unreasonable.
The court of appeals shall give due regard to the opportunity of the
district court to judge the credibility of the witnesses, and shall
accept the findings of fact of the district court unless they are
clearly erroneous and shall give due deference to the district court's
application of the guidelines to the facts.
(f) Decision and Disposition.--If the court of appeals determines
that the sentence--
(1) 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) 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;
(3) is not described in paragraph (1) or (2), it shall affirm
the sentence.
(g) Application to a Sentence by a Magistrate Judge.--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.
(h) Guideline Not Expressed as a Range.--For the purpose of this
section, the term ``guideline range'' includes a guideline range having
the same upper and lower limits.
(Added Pub. L. 98-473, title II, Sec. 213(a), Oct. 12, 1984, 98 Stat.
2011; amended Pub. L. 99-646, Sec. 73(a), Nov. 10, 1986, 100 Stat. 3617;
Pub. L. 100-182, Secs. 4-6, Dec. 7, 1987, 101 Stat. 1266, 1267; Pub. L.
100-690, title VII, Sec. 7103(a), Nov. 18, 1988, 102 Stat. 4416; Pub. L.
101-647, title XXXV, Secs. 3501, 3503, Nov. 29, 1990, 104 Stat. 4921;
Pub. L. 101-650, title III, Sec. 321, Dec. 1, 1990, 104 Stat. 5117; Pub.
L. 103-322, title XXXIII, Sec. 330002(k), Sept. 13, 1994, 108 Stat.
2140.)
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, Sec. 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.
Amendments
1994--Subsec. (b). Pub. L. 103-322 struck out comma after
``Government'' in introductory provisions.
1990--Subsec. (b). Pub. L. 101-647, Sec. 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, Sec. 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, Sec. 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, Sec. 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, Sec. 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, Sec. 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, Sec. 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, Sec. 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, Sec. 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, Sec. 7103(a)(8), added subsec. (c).
Former subsec. (c) redesignated (d).
Subsec. (d). Pub. L. 100-690, Sec. 7103(a)(8), redesignated former
subsec. (c) as (d). Former subsec. (d) redesignated (e).
Pub. L. 100-690, Sec. 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, Sec. 7103(a)(8), redesignated former
subsec. (d) as (e). Former subsec. (e) redesignated (f).
Subsec. (e)(2). Pub. L. 100-690, Sec. 7103(a)(6), substituted
``applicable guideline range'' for ``range of the applicable sentencing
guideline''.
Subsecs. (f), (g). Pub. L. 100-690, Sec. 7103(a)(8), redesignated
former subsecs. (e) and (f) as (f) and (g), respectively.
Subsec. (h). Pub. L. 100-690, Sec. 7103(a)(9), added subsec. (h).
1987--Subsec. (a)(4). Pub. L. 100-182, Sec. 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, Sec. 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, Sec. 5(3), added par. (4).
Subsec. (e)(2). Pub. L. 100-182, Sec. 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, Sec. 5(5), substituted
``and'' for ``the court shall'' before ``remand''.
Subsec. (e)(3). Pub. L. 100-182, Sec. 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, Sec. 4, added subsec. (f).
1986--Subsec. (e)(1). Pub. L. 99-646, Sec. 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, Sec. 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, Sec. 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.
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 Amendment
Amendment 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.
Section Referred to in Other Sections
This section is referred to in sections 3143, 3557, 3562, 3572,
3582, 3664, 4106A of this title.
