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Federal Detention Pending Appeal: Staying Out During Appeal
Spodek Law Group, is a premier, and award winning federal criminal defense law firm with offices throughout NYC and nationwide reach. Our team has experience dealing with some of the toughest federal appellate cases in the country. Todd Spodek—a second-generation criminal defense attorney with many, many years of federal experience—has represented high-profile clients like Anna Delvey (featured in the 2022 Netflix series), successfully handling hundreds of complex federal appeals, and appeared on Fox News, NY Post, and Newsweek.
You just got sentenced to federal prison. The judge is asking if you’re surrendering immediately. Your lawyer mentioned filing an appeal—but does that mean you can stay out? Your freedom. On the line.
The answer is maybe. But you have about 10-14 days in order to make it happen before your window closes. Miss that window, and you’re fighting a nearly impossible battle. This article breaks down 18 U.S.C. § 3143—the statute which controls your fate—the timing trap most defendants don’t see, which appeals actually qualify, and the harsh realities nobody tells you about.
The 10-14 Day Window Nobody Tells You About
You got sentenced. Maybe it was yesterday. Maybe it was three days ago. Maybe it was last week. Irrespective of when it happened, you need to understand something critical about federal detention pending appeal—there’s a procedural cliff coming, and most defendants don’t see it until they’ve already fallen off.
Here’s what actually happens after sentencing in federal court: The Bureau of Prisons, starts processing your designation paperwork. This isn’t some slow bureaucratic process that takes months. It happened fast. Fast, fast, fast—in about 10 to 14 days.
Once BOP designates you to a facility—once they decide which federal prison you’re going to—your chances of getting released pending appeal drops from about 60% down to maybe 15%.
Why? Because now you’re not asking the district judge for a routine motion. You’re asking the circuit court for emergency relief. Different court. Different standard. Different odds.
Look, here’s what nobody explains when they say “you can appeal.” Yes, you can appeal. Yes, there’s a statute—18 U.S.C. § 3143—that allows release pending appeal. But the statute doesn’t tell you about the timing mathematics which actually determine if you have a realistic shot or whether you’re basically done.
The timeline looks like this, and you need in order to understand it completely: Day 0 is your sentencing. Days 1-7 are when you need to file your motion for release pending appeal to the district court. File in this window, and you’re looking at the best odds you’ll ever have—about 60% success rate if you meet the requirements. We’ll get to what those requirements are, but first you needed to understand why timing matters so much.
Days 8-14, BOP is processing. Your odds are dropping. They’re processing your designation, and every day that passed makes this harder.
Day 15 and beyond, BOP has probably designated you. If you or a loved one is already in custody, you’re now fighting from inside a federal facility. If you haven’t reported yet but designation happened, you now need to file an emergency motion to the circuit court of appeals. Circuit court reviews for “abuse of discretion”—which basically means they’d have to find the district judge went completely crazy to overturn the detention decision. Your success rate at the circuit level is under 5%. Under 5 percent. Those are lottery odds.
So when your lawyer says “we’ll file the appeal and request release pending appeal,” you need to ask: When? When are you filing it? Due to the difference between filing on Day 3 and filing on Day 20 is the difference between a real shot and a prayer.
Many, many defendants miss this window because they think they have time. They think “appeals take months to brief, so I have months in order to figure this out.” No. The motion for release pending appeal needs to happen RIGHT NOW. Within days of sentencing. Not weeks. Not “when we finish researching the appeal.” Now.
The thing is, BOP moves fast when it wants to. They’ve been doing this forever, and they know exactly how long it takes to process designation paperwork. Some defendants get designated in 7 days. Some in 10. Some in 14. You don’t know which category you’re in, and by the time you find out, it’s too late.
This is the first critical thing you need to understand about federal detention pending appeal—the window is narrow, it’s closing, and most people don’t even know it exists until it’s already closed.
If you were sentenced within the last week, you need to call an experienced federal appellate attorney today. Not tomorrow. Not next week. Today.
“Substantial Question” Isn’t What You Think It Is
Your lawyer told you “we have good grounds for appeal.” Maybe you do. But here’s what they probably didn’t explain—having grounds for appeal and having grounds for release pending appeal is two completely different things.
Under 18 U.S.C. § 3143, you need to show by clear and convincing evidence that your appeal raises a “substantial question of law or fact” likely to result in reversal, new trial, or reduced sentence. That sounds straightforward until you try and figure out what “substantial question” actually means.
Judges won’t say this out loud, won’t admit it, won’t acknowledge it publicly—but there’s basically a three-tier system for what qualifies as a substantial question.
Tier 1 issues are your only realistic shot. These are preserved constitutional errors, Guidelines miscalculations, clear legal errors which create a “close question” among reasonable judges. Think: Fourth Amendment violation where the suppression motion was close, improper jury instruction on elements of the offense, Brady violation with newly discovered exculpatory evidence, sentencing Guidelines calculation error where the judge applied the wrong enhancement.
Courts grant release pending appeal for Tier 1 issues maybe 40% of the time if you also proved you’re not a flight risk or danger.
Tier 2 issues almost never work for release pending appeal. Success rate under 10%. These are sufficiency of the evidence challenges (“the evidence was weak”), witness credibility arguments (“the witness lied”), evidentiary ruling disputes that weren’t clearly erroneous.
Why don’t these work? Because they’re not “close questions.” You’re just disagreeing with how the judge or jury weighed the evidence. Courts view this as “you lost, you’re unhappy about it, but that’s not a substantial question.”
Tier 3 issues never work. Zero percent. Never, never, never. These are ineffective assistance of counsel claims, which have to be brought through a § 2255 motion—not a direct appeal—so they don’t even qualify under § 3143. Some defendants think “my lawyer was terrible” means they can stay out pending appeal. It doesn’t work that way.
Look, most appeals have grounds. You can argue the evidence was insufficient. You can argue the sentence was too harsh. You can argue the judge made mistakes. But having grounds to appeal and having a substantial question that justifies release pending appeal is different standards.
The test is: would reasonable judges disagree if the trial court got it right? If the answer is “maybe one or two judges out of a hundred would disagree,” that’s not a substantial question. If the answer is “this is a genuinely close call which could go either way,” then you might—might—have a Tier 1 issue.
Here’s the practical reality: If your appeal is about a suppression motion that was denied, and it was a close call on whether the search violated the Fourth Amendment, that’s potentially Tier 1. If your appeal is about if the evidence was sufficient to convict you, and you’re basically arguing the jury got it wrong, that’s Tier 2—not gonna work.
The thing is, you need to be honest with yourself about which tier your appeal falls into. Due to if you’re in Tier 2 or 3, fighting for release pending appeal may not be the best use of your energy or resources. It might be better to focus on getting the appeal briefed quickly and getting to oral argument faster.
We’ll talk about that strategy in a minute. But first, you need to know something else about § 3143 which your lawyer may not have mentioned.
The Mandatory Detention Trap
Most federal defendants don’t realize they’re in the mandatory detention category—and that changed everything.
Section 3143 has two tracks. Track one is discretionary detention under subsection (b)(2). If you or a loved one is in this category, you need to prove by clear and convincing evidence that you’re not a flight risk or danger, and that your appeal raises a substantial question. That’s the standard everyone talks about.
Track two is mandatory detention under subsection (b)(1). If you’re in this category, you’re facing a more stricter bar. You need to prove “exceptional reasons why such person’s detention would not be appropriate” PLUS all the other requirements. Courts interpret “exceptional reasons” very, very narrowly. We’re talking terminal illness. Dying child who needs you. Extraordinary circumstances that go way beyond “my appeal is strong” or “I’m not a danger.” Basically impossible unless you have truly exceptional facts.
So which track are you on? It depends on what you were convicted of. Section 3142(f)(1) lists the offenses which trigger mandatory detention. These include: crimes of violence as defined in 18 U.S.C. § 3156(a)(4), any offense with a maximum sentence of life imprisonment or death, drug trafficking offenses under 21 U.S.C. § 802 with a maximum term of ten years or more, and several other enumerated categories.
Here’s the problem—this covers most federal crimes. Drug trafficking? If the maximum is 10+ years, you’re in mandatory detention category. Firearms offense? Probably mandatory detention. Fraud over certain amounts? Could be mandatory detention depending on the statutory maximum. Any violent crime? Definitely mandatory detention.
The thing is, your lawyer may have said “we’ll file a motion for release pending appeal” without explaining that you’re facing the “exceptional reasons” standard instead of just the “substantial question” standard. That’s a huge difference. It’s kind of like the difference between “prove your appeal is strong” versus “prove you’re dying.”
Now, here’s what your lawyer may not have explained: even if you or a loved one is in the mandatory detention category, you can still file the motion. Courts occasionally grant release for defendants in this category. But you need to understand the odds you’re facing is much, much lower than the already-low odds in the discretionary category.
Irrespective of your specific charges, the first thing you need in order to figure out is which category you’re in. Look at the statute you were convicted under. What’s the maximum sentence? If it’s 10+ years for a drug offense, or life, or death, or if it’s a crime of violence—you’re probably in mandatory detention category. Your attorney can tell you for sure, but you should know this yourself so you can make informed decisions if fighting for release pending appeal makes sense in your situation.
The Same-Judge Problem
Here’s an uncomfortable truth about the § 3143 process: you’re asking the same judge who just convicted you and sentenced you to now say “I may have made a substantial legal error.”
Think about that for a second. Same judge. Same courtroom. Same case. The judge who presided over your trial, heard all the evidence, made all the rulings, and imposed sentence is now supposed to evaluate if there’s a substantial question about whether they got it right.
Judges are human. They’re people. They don’t like being told they were wrong. Nobody does. It’s kind of uncomfortable, and it created a psychological headwind that you need to be aware of. This doesn’t mean judges are unfair or biased—it just means they’re human, and humans have defensive reactions when their decisions are challenged.
Look, the success rate on these motions varies depending on what you’re arguing. If your appellate issue is essentially “Judge, you wrongly denied my suppression motion” or “Judge, you gave the wrong jury instruction,” you’re asking the judge to implicitly admit error. That’s a tough sell. Courts don’t like to do that.
On the other hand, if your appellate issue is “there’s a circuit split on how to interpret this sentencing enhancement, and the Fifth Circuit just ruled the other way,” that’s easier for the judge. They can grant release without admitting they personally made a mistake—it’s a question of law which reasonable courts disagree about.
Strategic framing matters here. If you have multiple potential appellate issues, some of which are “the judge got it wrong” and some of which are “there’s a legal question judges disagree about,” you might want to emphasize the latter in your § 3143 motion. Not because you’re abandoning the other arguments for appeal—you can still make those arguments in your appellate brief. But for purposes of getting released pending appeal, you want to give the judge a way in order to grant relief without feeling like they’re admitting they screwed up.
This is the kind of nuance that experienced federal appellate attorneys understand from years of practice. It’s the kind of thing Todd Spodek knows from successfully handling federal appeals and understanding judicial psychology from high-profile cases.
The point is, be strategic about how you frame your motion. Don’t just list every possible argument and hope something sticks. Focus on the arguments which are most likely to succeed—which often means focusing on the arguments that are least personally threatening to the judge who’s deciding your motion.
The Circuit Court Isn’t Really a Backup Plan
Your lawyer may tell you, “If the district court denies the motion, we can appeal to the circuit court.” Technically true. Realistically? It’s pretty much a Hail Mary.
The circuit court reviews the district court’s detention decision for “abuse of discretion.” That’s one of the most deferential standards in federal law. It basically means the circuit court will only reverse if the district judge’s decision was arbitrary, capricious, whimsical, or manifestly unreasonable. Not “wrong.” Not “we would have decided differently.” Manifestly unreasonable. That’s a very, very high bar.
Success rate on circuit court emergency motions for release pending appeal is under 5%. Under 5 percent.
Why so low? Due to circuit judges defer to trial judges who actually saw the case, heard the arguments, observed the defendant in court. Unless there’s a clear legal error—like the district judge applied the wrong legal standard or misunderstood the statute—the circuit court is gonna say “district judge has discretion, we’re not second-guessing that discretion.”
The thing is, defendants often view the circuit court appeal as a safety net. “If we lose at the district court, we have another shot.” But it’s not really another shot. It’s more like a lottery ticket. Could it work? Sure. Anything’s possible. Is it likely? No. Success rate speaks for itself.
Here’s what this means practically: the district court motion is your one realistic shot at staying out during the appeal. Your only shot. Which means you need in order to get it right the first time. You need to hire the best federal appellate attorney you can find—someone who knows how to frame these motions, who understands what judges are looking for, who can present your case in the strongest possible light.
You need to not rush the briefing just to file fast. Yes, timing matters—we talked about the 10-14 day window. But that doesn’t mean you should file a sloppy motion on Day 2. Better to file a well-crafted motion on Day 5 or 6 than a rushed motion on Day 2. Quality matters. Stakes are too high to half-ass this.
And if you lose at the district court, you need to mentally prepare for detention during the appeal rather than banking on the circuit court to save you. Unlike other law firms which might give you false hope about the circuit court appeal just to keep you paying legal fees, we give you honest assessment of the odds. Circuit court emergency appeal for release pending appeal—under 5%. That’s the reality. Plan accordingly.
Final Thoughts
You know the window now—10 to 14 days before BOP designation changed everything. You know the tier system—only Tier 1 issues really work for release pending appeal. You know the mandatory detention trap—most federal crimes trigger the higher “exceptional reasons” standard. You know the same-judge psychology—frame your motion strategically. And you know the circuit court reality—it’s not really a backup plan.
If your sentencing happened within the last week, you need to call an experienced federal appellate attorney now. Now, now, now—that’s when you needed to act. The clock is ticking, ticking, ticking. Every day that passes makes this harder.
Spodek Law Group handles federal detention pending appeal cases nationwide. We’re available 24/7 due to these emergencies don’t wait for business hours. Unlike other law firms which tell you “it’s difficult” without explaining how to overcome it, we break down the exact strategies, give you honest odds, and fight smart.
Your case. Your timeline. Your freedom. We understand what’s at stake.