Thompson v. United States, 111 F.3d 109 (11th Cir. 1997). · Go Syfert
Thompson v. United States, 111 F.3d 109 (11th Cir. 1997). Cases Citing This Book View Copy Cite
11 citation events across 6 distinct courts.
Strongest positive: Troncoso v. Singletary (flsd, 1998-03-26)
Top citers, strongest first. 5 distinct citers. How cited ↗
discussed Cited as authority (rule) Troncoso v. Singletary
S.D. Fla. · 1998 · confidence medium
In a recent case, Thompson v. United States, 111 F.3d 109, 110 (11th Cir.1997), the Eleventh Circuit held that the federal district court’s failure to advise a guilty-pleading defendant of the right to appeal his sentence was per se error, mandating vacation of the sentence and resentencing.
discussed Cited as authority (rule) Ristagno v. United States
M.D. Penn. · 1998 · confidence medium
“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.” Thompson v. United States, 111 F.3d 109, 110 (11th Cir.1997).
discussed Cited "see, e.g." United States v. Locke
W.D. Pa. · 1999 · signal: see, e.g. · confidence medium
See, e.g., Thompson v. United States, 111 F.3d 109, 110 (11th Cir.1997); United States v. San *451 chez, 88 F.3d 1243, 1247, 1249-50 (D.C.Cir.1996); Reid v. United States, 69 F.3d 688, 689-90 (2d Cir.1995).
discussed Cited "see, e.g." United States v. Allgood
E.D. Va. · 1999 · signal: compare · confidence low
Compare Thompson v. United States, 111 F.3d 109 (11th Cir.1997) (holding that defendant is entitled to relief even if he knew of his right to appeal through other sources), and United States v. Sanchez, 88 F.3d 1243 (D.C.Cir.1996) (same), and Reid v. United States, 69 F.3d 688 (2d Cir.1995) (per curiam) (same), with Tress v. United States, 87 F.3d 188 (7th Cir. 1996) (holding that defendant not entitled to relief if he knew of right to appeal), and United States v. Drummond, 903 F.2d 1171 (8th Cir.1990) (same).
discussed Cited "see, e.g." Peguero v. United States (2×)
SCOTUS · 1999 · signal: compare · confidence low
Compare, e. g., Thompson v. United States, 111 F. 3d 109 (CA11 1997) (defendant entitled to relief even if he knew of his right to appeal through other sources); United States v. Sanchez, 88 F. 3d 1243 (CADC 1996) (same); Reid v. United States, 69 F. 3d 688 (CA2 1995) (per curiam) (same), with Tress v. United States, 87 F. 3d 188 (CA7 1996) (defendant not entitled to relief if he knew of his right to appeal); United States v. Drummond, 903 F. 2d 1171 (CA8 1990) (same).
Retrieving the full opinion text from the archive…
Otis THOMPSON, Petitioner-Appellant,
v.
UNITED STATES of America, Respondent-Appellee
95-3343.
Court of Appeals for the Eleventh Circuit.
Apr 29, 1997.
111 F.3d 109
1997 U.S. App. LEXIS 8870
1997 WL 177299
Otis Michael Thompson, Manchester, KY, Pro Se., Frank A. Baker, Marianna, FL, for Petitioner-Appellant., Michael Simpson, Asst.U.S.Atty., Tallahassee, FL, for Respondent-Appellee.
Dubina, Black, Cohill.
Cited by 7 opinions  |  Published
1 passage pin-cited by 1 case
Pinpoint authority: bottom 65%
Citer courts: District of Columbia (1)
PER CURIAM:

Appellant Otis Thompson appeals the district court’s denial of his motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255. 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 Presentenee 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 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[*111] (1991); see also Biro v. United States, 24 F.3d 1140, 1142 (9th Cir.1994).

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.

1

. Appellant’s other issues are either rendered moot by our holding or do not require discussion.

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).