United States Court of Appeals,
Eleventh Circuit.
No. 95-3343.
Otis THOMPSON, Petitioner-Appellant,
v.
UNITED STATES of America, Respondent-Appellee.
April 29, 1997.
Appeal from the United States District Court for the Northern
District of Florida. (No. 93-40086WS), William Stafford, Judge.
Before DUBINA and BLACK, Circuit Judges, and COHILL*, Senior
District Judge.
PER CURIAM:
Appellant Otis Thompson appeals the district court's denial of
his habeas petition. We hold that the sentencing court's failure
to advise Appellant of his right to appeal his sentence constitutes
error per se. Therefore, we reverse and remand for resentencing
with notice to Appellant of his right to appeal the sentence.1
In 1988, while represented by counsel, Appellant pled guilty
to conspiracy to possess with intent to distribute 50 grams or more
of crack cocaine. Neither party objected to the Presentence Report
(PSR), and the court sentenced Appellant to 360 months'
imprisonment and 5 years' supervised release. At sentencing, the
court failed to advise Thompson of his right to appeal the
*
Honorable Maurice B. Cohill, Jr., Senior U.S. District
Judge for the Western District of Pennsylvania, sitting by
designation.
1
Appellant's other issues are either rendered moot by our
holding or do not require discussion.
sentence.2
The circuit courts are divided on the question of what
standard is used to review a sentencing court's failure to advise
a defendant of his right to appeal. Six circuits have held that
such a failure constitutes error per se, requiring the reviewing
court to vacate the sentence and remand for resentencing. United
States v. Sanchez, 88 F.3d 1243, 1249 (D.C.Cir.1996); Reid v.
United States, 69 F.3d 688, 690 (2d Cir.1995); United States v.
Butler, 938 F.2d 702, 703-04 (6th Cir.1991); Paige v. United
States, 443 F.2d 781, 782 (4th Cir.1971); United States v. Deans,
436 F.2d 596, 598-99 (3d Cir.1971); United States v. Benthien, 434
F.2d 1031, 1032-33 (1st Cir.1970). Two other circuits have held
that a petitioner must show some type of harm stemming from the
sentencing court's failure to notify him of his right to appeal.
Tress v. United States, 87 F.3d 188, 189 (7th Cir.1996); United
States v. Drummond, 903 F.2d 1171, 1174 (8th Cir.1990), cert.
denied, 498 U.S. 1049, 111 S.Ct. 759, 112 L.Ed.2d 779 (1991); see
also Biro v. United States, 24 F.3d 1140, 1142 (9th Cir.1994).
2
At the time of sentencing, Fed.R.Crim.P. 32(a)(2) provided:
(2) Notification of Right to Appeal. After imposing
sentence in a case which has gone to trial on a plea of
not guilty, the court shall advise the defendant of the
defendant's right to appeal, including any right to
appeal the sentence, and of the right of a person who
is unable to pay the cost of an appeal to apply for
leave to appeal in forma pauperis. There shall be no
duty on the court to advise the defendant of any right
of appeal after sentence is imposed following a plea of
guilty or nolo contendere, except that the court shall
advise the defendant of any right to appeal his
sentence.
This provision now appears in revised form at Fed.R.Crim.P.
32(c)(5).
The requirement of explicit notice of the right to appeal
one's sentence is "designed to insure that a convicted defendant be
advised precisely of his right to appeal and to avoid a situation
where the Government claims a defendant is otherwise aware of his
right to appeal while the defendant denies such knowledge." Paige,
443 F.2d at 782. We hold that even in cases, such as this one,
where the record is clear that Appellant became aware of his right
to appeal through other sources, the sentencing court's failure to
give notice of this right constitutes error per se. Like the
majority of our sister circuits, we are persuaded that "the policy
of preventing excessive litigation justifies a strict and literal
enforcement of Rule 32(a)(2)." Reid, 69 F.3d at 689.
Accordingly, we VACATE the sentence and REMAND for
resentencing, at which Appellant will be advised of his right to
appeal.