United States of America, Plaintiff-appellee, v. Keith Butler, Defendant-appellant, 938 F.2d 702 (6th Cir. 1991)

W. Hickman Ewing, Jr., U.S. Atty., John Fowlkes, Asst. U.S. Atty., Memphis, Tenn., for plaintiff-appellee.

Kemper B. Durand, Thomason, Hendrix, Harvey, Johnson, Mitchell, Blanchard, Memphis, Tenn., for defendant-appellant.

Before BOGGS, Circuit Judge; LIVELY, Senior Circuit Judge; and CLELAND, District Judge^* .

ORDER

The defendant appeals the judgment of conviction and sentence entered upon his guilty plea to possession with intent to distribute cocaine. The judgment was entered upon the district court's docket on September 27, 1990. At that time the district court advised the defendant of his right to appeal an earlier order which denied his motion to suppress evidence. It appears from excerpts of the transcript before this court, however, that the district court did not specifically advise the defendant of his right to appeal the sentence. See Fed.R.Cr.P. 32(a) (2). No notice of appeal was filed until January 25, 1991, when the defendant filed a pro se notice of appeal.

A show cause order was entered for the defendant to state why his appeal should not be dismissed as untimely. The defendant's attorney responds that the defendant was never advised of his right to appeal the sentence. The government responds that the defendant was advised of his right to appeal and that the purpose of Fed.R.Cr.P. 32(a) (2) has been fulfilled.

This court has held that the failure to advise a defendant of the right of appeal requires vacation of the sentence and remand to the district court for resentencing and notice as to the right of appeal. United States v. Smith, 387 F.2d 268 (6th Cir. 1967). Upon resentencing a new period for appeal commences. However, the defendant's failure to immediately file an appeal even though advised of the right may be deemed a waiver of the right of appeal. See Kruse v. United States, 422 F.2d 849 (6th Cir.), cert. denied 399 U.S. 932, 90 S. Ct. 2265, 26 L. Ed. 2d 802 (1970).

In the instant case the defendant clearly had notice of the right to appeal the suppression issue, but failed to file a timely appeal or to obtain an extension of time to appeal. Accordingly, this court lacks jurisdiction in any appeal from the denial of the motion to suppress. With respect to the sentencing issue, however, we cannot determine that the defendant was notified of his right to appeal the district court's sentence. Accordingly, the sentence is vacated and the case remanded to the district court for resentencing with notice to the defendant of his right to appeal.

It is therefore ORDERED that the sentence in this case is vacated. The case is remanded to the district court which is instructed to resentence and advise the defendant of his right of appeal with respect to the sentence. On resentencing, a new period for appeal will commence. See Fed. R. App. P. 4(b).