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18 USC CHAPTER 235 - APPEAL 01/06/03

-EXPCITE-

TITLE 18 - CRIMES AND CRIMINAL PROCEDURE

PART II - CRIMINAL PROCEDURE

CHAPTER 235 - APPEAL

.

-HEAD-

CHAPTER 235 - APPEAL

-MISC1-

Sec.

3731. Appeal by United States.

3732. Taking of appeal; notice; time - Rule.

3733. Assignment of errors - Rule.

3734. Bill of exceptions abolished - Rule.

3735. Bail on appeal or certiorari - Rule.

3736. Certiorari - Rule.

3737. Record - Rule.

3738. Docketing appeal and record - Rule.

3739. Supervision - Rule.

3740. Argument - Rule.

3741. Harmless error and plain error - Rule.

3742. Review of a sentence.

AMENDMENTS

1984 - Pub. L. 98-473, title II, Sec. 213(b), Oct. 12, 1984, 98

Stat. 2013, added item 3742.

-CITE-

18 USC Sec. 3731 01/06/03

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TITLE 18 - CRIMES AND CRIMINAL PROCEDURE

PART II - CRIMINAL PROCEDURE

CHAPTER 235 - APPEAL

-HEAD-

Sec. 3731. Appeal by United States

-STATUTE-

In a criminal case an appeal by the United States shall lie to a

court of appeals from a decision, judgment, or order of a district

court dismissing an indictment or information or granting a new

trial after verdict or judgment, as to any one or more counts, or

any part thereof, except that no appeal shall lie where the double

jeopardy clause of the United States Constitution prohibits further

prosecution.

An appeal by the United States shall lie to a court of appeals

from a decision or order of a district court suppressing or

excluding evidence or requiring the return of seized property in a

criminal proceeding, not made after the defendant has been put in

jeopardy and before the verdict or finding on an indictment or

information, if the United States attorney certifies to the

district court that the appeal is not taken for purpose of delay

and that the evidence is a substantial proof of a fact material in

the proceeding.

An appeal by the United States shall lie to a court of appeals

from a decision or order, entered by a district court of the United

States, granting the release of a person charged with or convicted

of an offense, or denying a motion for revocation of, or

modification of the conditions of, a decision or order granting

release.

The appeal in all such cases shall be taken within thirty days

after the decision, judgment or order has been rendered and shall

be diligently prosecuted.

The provisions of this section shall be liberally construed to

effectuate its purposes.

-SOURCE-

(June 25, 1948, ch. 645, 62 Stat. 844; May 24, 1949, ch. 139, Sec.

58, 63 Stat. 97; Pub. L. 90-351, title VIII, Sec. 1301, June 19,

1968, 82 Stat. 237; Pub. L. 91-644, title III, Sec. 14(a), Jan. 2,

1971, 84 Stat. 1890; Pub. L. 98-473, title II, Sec. 205, 1206, Oct.

12, 1984, 98 Stat. 1986, 2153; Pub. L. 99-646, Sec. 32, Nov. 10,

1986, 100 Stat. 3598; Pub. L. 103-322, title XXXIII, Sec.

330008(4), Sept. 13, 1994, 108 Stat. 2142; Pub. L. 107-273, div.

B, title III, Sec. 3004, Nov. 2, 2002, 116 Stat. 1805.)

-MISC1-

HISTORICAL AND REVISION NOTES

1948 ACT

Based on title 18, U.S.C., 1940 ed., Sec. 682 (Mar. 2, 1907, ch.

2564, 34 Stat. 1246; Mar. 3, 1911, ch. 231, Sec. 291, 36 Stat.

1167; Jan. 31, 1928, ch. 14, Sec. 1, 45 Stat. 54; May 9, 1942, ch.

295, Sec. 1, 56 Stat. 271).

The word ''dismissing'' was substituted for ''sustaining a motion

to dismiss'' in two places for conciseness and clarity, there being

no difference in effect of a decision of dismissal whether made on

motion or by the court sua sponte.

Minor changes were made to conform to Rule 12 of the Federal

Rules of Criminal Procedure. The final sentence authorizing

promulgation of rules is omitted as redundant.

1949 ACT

This section (section 58) corrects a typographical error in the

second paragraph of section 3731 of title 18, U.S.C., and conforms

the language of the fifth, tenth, and eleventh paragraphs of such

section 3731 with the changed nomenclature of title 28, U.S.C.,

Judiciary and Judicial Procedure. See sections 41, 43, and 451 of

the latter title.

AMENDMENTS

2002 - First par. Pub. L. 107-273 inserted '', or any part

thereof'' after ''as to any one or more counts''.

1994 - Second par. Pub. L. 103-322 substituted ''order of a

district court'' for ''order of a district courts''.

1986 - Fifth par. Pub. L. 99-646 struck out fifth par. which

read as follows: ''Pending the prosecution and determination of the

appeal in the foregoing instances, the defendant shall be released

in accordance with chapter 207 of this title.''

1984 - First par. Pub. L. 98-473, Sec. 1206, inserted ''or

granting a new trial after verdict or judgment,'' after

''indictment or information''.

Third par. Pub. L. 98-473, Sec. 205, inserted third par.

relating to appeals from a decision or order, entered by a district

court of the United States, granting the release of a person

charged with or convicted of an offense, or denying a motion for

revocation of, or modification of the conditions of, a decision or

order granting release.

1971 - First par. Pub. L. 91-644, Sec. 14(a)(1), enacted

provision for appeal to a court of appeals from decision, judgment,

or order of district court dismissing an indictment or information

as to any one or more counts, except that no appeal shall lie where

double jeopardy prohibits further prosecution.

Second par. Pub. L. 91-644, Sec. 14(a)(1), enacted provision for

appeal to a court of appeals from decision or order of district

court suppressing or excluding evidence or requiring the return of

seized property in a criminal proceeding, not made after the

defendant has been put in jeopardy and before the verdict or

finding on an indictment or information, if the United States

attorney certifies to the district court that the appeal is not

taken for purpose of delay and that the evidence is a substantial

proof of a fact material in the proceeding.

Such first and second pars. superseded former first eight pars.

Pars. one through four had provided for appeal from district courts

to Supreme Court from decision or judgment setting aside, or

dismissing any indictment or information, or any count thereof and

from decision arresting judgment of conviction for insufficiency of

indictment or information, where such decision or judgment was

based upon invalidity or construction of the statute upon which the

indictment or information was founded and for an appeal from

decision or judgment sustaining a motion in bar, where defendant

had not been put in jeopardy. Pars. five through eight provided

for appeal from district courts to a court of appeals where there

were no provisions for direct appeal to Supreme Court from decision

or judgment setting aside, or dismissing any indictment or

information, or any count thereof and from decision arresting a

judgment of conviction, and from an order, granting a motion for

return of seized property or a motion to suppress evidence, made

before trial of a person charged with violation of a Federal law,

if the United States attorney certified to the judge who granted

the motion that the appeal was not taken for purpose of delay and

that the evidence was a substantial proof of the charge pending

against the defendant.

Third par. Pub. L. 91-644, Sec. 14(a)(2), authorized within

third par., formerly ninth, an appeal within thirty days after

order has been rendered.

Fourth par. Pub. L. 91-644, Sec. 14(a), in revising the

provisions, had the effect of designating former tenth par. as

fourth par.

Fifth par. Pub. L. 91-644, Sec. 14(a)(3), substituted as a fifth

par. provision for liberal construction of this section for prior

eleventh par. provision respecting remand of case by Supreme Court

to court of appeals that should have been taken to such court and

treatment of the court's jurisdiction to hear and determine the

case as if the appeal were so taken in the first instance and for

prior twelfth par. provision respecting certification of case to

Supreme Court that should have been taken directly to such Court

and treatment of the Court's jurisdiction to hear and determine the

case as if the appeal were taken directly to such Court.

1968 - Pub. L. 90-351 inserted eighth par. providing for an

appeal by the United States from decisions sustaining motions to

suppress evidence and substituted in tenth par. ''defendant shall

be released in accordance with chapter 207 of this title'' for

''defendant shall be admitted to bail on his own recognizance'',

respectively.

1949 - Act May 24, 1949, substituted ''invalidity'' for

''validity'' after ''upon the'' in second par., and conformed

language of fifth, tenth, and eleventh pars. to the changed

nomenclature of the courts.

SAVINGS PROVISION

Section 14(b) of Pub. L. 91-644 provided that: ''The amendments

made by this section (amending this section) shall not apply with

respect to any criminal case begun in any district court before the

effective date of this section (Jan. 2, 1971).''

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 3143, 3145 of this title.

-CITE-

18 USC Sec. 3732 01/06/03

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TITLE 18 - CRIMES AND CRIMINAL PROCEDURE

PART II - CRIMINAL PROCEDURE

CHAPTER 235 - APPEAL

-HEAD-

Sec. 3732. Taking of appeal; notice; time - (Rule)

-STATUTE-

SEE FEDERAL RULES OF CRIMINAL PROCEDURE

Taking appeal; notice, contents, signing; time, Rule 37(a).

-SOURCE-

(June 25, 1948, ch. 645, 62 Stat. 845.)

-REFTEXT-

REFERENCES IN TEXT

Rule 37 of the Federal Rules of Criminal Procedure was abrogated

Dec. 4, 1967, eff. July 1, 1968, and is covered by Rule 3, Federal

Rules of Appellate Procedure, set out in the Appendix to Title 28,

Judiciary and Judicial Procedure.

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18 USC Sec. 3733 01/06/03

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TITLE 18 - CRIMES AND CRIMINAL PROCEDURE

PART II - CRIMINAL PROCEDURE

CHAPTER 235 - APPEAL

-HEAD-

Sec. 3733. Assignment of errors - (Rule)

-STATUTE-

SEE FEDERAL RULES OF CRIMINAL PROCEDURE

Assignments of error on appeal abolished, Rule 37(a)(1).

Necessity of specific objection in order to assign error in

instructions, Rule 30.

-SOURCE-

(June 25, 1948, ch. 645, 62 Stat. 845.)

-REFTEXT-

REFERENCES IN TEXT

Rule 37 of the Federal Rules of Criminal Procedure was abrogated

Dec. 4, 1947, eff. July 1, 1968, and is covered by Rule 3, Federal

Rules of Appellate Procedure, set out in the Appendix to Title 28,

Judiciary and Judicial Procedure.

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18 USC Sec. 3734 01/06/03

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TITLE 18 - CRIMES AND CRIMINAL PROCEDURE

PART II - CRIMINAL PROCEDURE

CHAPTER 235 - APPEAL

-HEAD-

Sec. 3734. Bill of exceptions abolished - (Rule)

-STATUTE-

SEE FEDERAL RULES OF CRIMINAL PROCEDURE

Exceptions abolished, Rule 51.

Bill of exceptions not required, Rule 37(a)(1).

-SOURCE-

(June 25, 1948, ch. 645, 62 Stat. 845.)

-REFTEXT-

REFERENCES IN TEXT

Rule 37 of the Federal Rules of Criminal Procedure was abrogated

Dec. 4, 1967, eff. July 1, 1968, and is covered by Rule 3, Federal

Rules of Appellate Procedure, set out in the Appendix to Title 28,

Judiciary and Judicial Procedure.

-CITE-

18 USC Sec. 3735 01/06/03

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TITLE 18 - CRIMES AND CRIMINAL PROCEDURE

PART II - CRIMINAL PROCEDURE

CHAPTER 235 - APPEAL

-HEAD-

Sec. 3735. Bail on appeal or certiorari - (Rule)

-STATUTE-

SEE FEDERAL RULES OF CRIMINAL PROCEDURE

Bail on appeal or certiorari; application, Rules 38(c) and

46(a)(2).

-SOURCE-

(June 25, 1948, ch. 645, 62 Stat. 845.)

-REFTEXT-

REFERENCES IN TEXT

Rule 38(c) of the Federal Rules of Criminal Procedure was

abrogated Dec. 4, 1967, eff. July 1, 1968, and is covered by rule

9, Federal Rules of Appellate Procedure, set out in the Appendix to

Title 28, Judiciary and Judicial Procedure.

Rule 46 was amended as part of the Bail Reform Act in 1966 and in

1972, and some provisions originally contained in Rule 46 are

covered by this chapter, see Notes of Advisory Committee on Rules

and Amendment notes under Rule 46, this Appendix.

-CITE-

18 USC Sec. 3736 01/06/03

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TITLE 18 - CRIMES AND CRIMINAL PROCEDURE

PART II - CRIMINAL PROCEDURE

CHAPTER 235 - APPEAL

-HEAD-

Sec. 3736. Certiorari - (Rule)

-STATUTE-

SEE FEDERAL RULES OF CRIMINAL PROCEDURE

Petition to Supreme Court, time, Rule 37(b).

-SOURCE-

(June 25, 1948, ch. 645, 62 Stat. 845.)

-REFTEXT-

REFERENCES IN TEXT

Rule 37 of the Federal Rules of Criminal Procedure was abrogated

Dec. 4, 1967, eff. July 1, 1968. Provisions of such former rule

for certiorari are covered by rule 19 et seq. of the Rules of the

United States Supreme Court, set out in the Appendix to Title 28,

Judiciary and Judicial Procedure.

-CITE-

18 USC Sec. 3737 01/06/03

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TITLE 18 - CRIMES AND CRIMINAL PROCEDURE

PART II - CRIMINAL PROCEDURE

CHAPTER 235 - APPEAL

-HEAD-

Sec. 3737. Record - (Rule)

-STATUTE-

SEE FEDERAL RULES OF CRIMINAL PROCEDURE

Preparation, form; typewritten record, Rule 39(b).

Exceptions abolished, Rule 51.

Bill of exceptions unnecessary, Rule 37(a)(1).

-SOURCE-

(June 25, 1948, ch. 645, 62 Stat. 846.)

-REFTEXT-

REFERENCES IN TEXT

Rules 37 and 39 of the Federal Rules of Criminal Procedure were

abrogated Dec. 4, 1967, eff. July 1, 1968, and are covered by Rule

10, Federal Rules of Appellate Procedure, set out in the Appendix

to Title 28, Judiciary and Judicial Procedure.

-CITE-

18 USC Sec. 3738 01/06/03

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TITLE 18 - CRIMES AND CRIMINAL PROCEDURE

PART II - CRIMINAL PROCEDURE

CHAPTER 235 - APPEAL

-HEAD-

Sec. 3738. Docketing appeal and record - (Rule)

-STATUTE-

SEE FEDERAL RULES OF CRIMINAL PROCEDURE

Filing record on appeal and docketing proceeding; time, Rule

39(c).

-SOURCE-

(June 25, 1948, ch. 645, 62 Stat. 846.)

-REFTEXT-

REFERENCES IN TEXT

Rule 39 of the Federal Rules of Criminal Procedure was abrogated

Dec. 4, 1967, eff. July 1, 1968, and is covered by Rules 10 to 12,

Federal Rules of Appellate Procedure, set out in the Appendix to

Title 28, Judiciary and Judicial Procedure.

-CITE-

18 USC Sec. 3739 01/06/03

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TITLE 18 - CRIMES AND CRIMINAL PROCEDURE

PART II - CRIMINAL PROCEDURE

CHAPTER 235 - APPEAL

-HEAD-

Sec. 3739. Supervision - (Rule)

-STATUTE-

SEE FEDERAL RULES OF CRIMINAL PROCEDURE

Control and supervision in appellate court, Rule 39(a).

-SOURCE-

(June 25, 1948, ch. 645, 62 Stat. 846.)

-REFTEXT-

REFERENCES IN TEXT

Rule 39 of the Federal Rules of Criminal Procedure was abrogated

Dec. 4, 1967, eff. July 1, 1968, and is covered by Rule 27,

Federal Rules of Appellate Procedure, set out in the Appendix to

Title 28, Judiciary and Judicial Procedure.

-CITE-

18 USC Sec. 3740 01/06/03

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TITLE 18 - CRIMES AND CRIMINAL PROCEDURE

PART II - CRIMINAL PROCEDURE

CHAPTER 235 - APPEAL

-HEAD-

Sec. 3740. Argument - (Rule)

-STATUTE-

SEE FEDERAL RULES OF CRIMINAL PROCEDURE

Setting appeal for argument; preference to criminal appeals, Rule

39(d).

-SOURCE-

(June 25, 1948, ch. 645, 62 Stat. 846.)

-REFTEXT-

REFERENCES IN TEXT

Rule 39 of the Federal Rules of Criminal Procedure was abrogated

Dec. 4, 1967, eff. July 1, 1968, and is covered by Rule 34,

Federal Rules of Appellate Procedure, set out in the Appendix to

Title 28, Judiciary and Judicial Procedure.

-CITE-

18 USC Sec. 3741 01/06/03

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TITLE 18 - CRIMES AND CRIMINAL PROCEDURE

PART II - CRIMINAL PROCEDURE

CHAPTER 235 - APPEAL

-HEAD-

Sec. 3741. Harmless error and plain error - (Rule)

-STATUTE-

SEE FEDERAL RULES OF CRIMINAL PROCEDURE

Error or defect as affecting substantial rights, Rule 52.

Defects in indictment, Rule 7.

Waiver of error, Rules 12(b)(2) and 30.

-SOURCE-

(June 25, 1948, ch. 645, 62 Stat. 846.)

-CITE-

18 USC Sec. 3742 01/06/03

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TITLE 18 - CRIMES AND CRIMINAL PROCEDURE

PART II - CRIMINAL PROCEDURE

CHAPTER 235 - APPEAL

-HEAD-

Sec. 3742. Review of a sentence

-STATUTE-

(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) (FOOTNOTE 1) than the

maximum established in the guideline range; or

(FOOTNOTE 1) See References in Text note below.

(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) (FOOTNOTE 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.

-SOURCE-

(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, Sec. 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, Sec. 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.)

-REFTEXT-

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.

-MISC2-

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-

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.

-MISC4-

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.

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 3143, 3557, 3562, 3572,

3582, 3664, 4106A of this title.

-CITE-