U.S. v. Sanchez

• Decision Date: 19 July 1996
• Docket Number: No. 94-3086,94-3086
• Citation: 88 F.3d 1243
• Parties: UNITED STATES of America, Appellee, v. Thomas SANCHEZ, a/k/a Aquilino Batista, a/k/a Steve Sanchez, a/k/a Thomas Sanchez Batista, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1243

88 F.3d 1243

319 U.S.App.D.C. 180

UNITED STATES of America, Appellee, v. Thomas SANCHEZ, a/k/a Aquilino Batista, a/k/a Steve Sanchez a/k/a Thomas Sanchez Batista, Appellant.

No. 94-3086.

United States Court of Appeals District of Columbia Circuit.

Argued Dec. 8, 1995.

Decided July 19, 1996.

Appeal from the United States District Court for the District of Columbia (No. 93cr00086-1).

Roberto Iraola, Washington, DC, with whom Barry Coburn (appointed by the court) and Benjamin B. Klubes, were on the briefs, argued the cause for appellant.

Kristan Peters-Hamlin, Assistant United States Attorney, with whom Eric H. Holder, Jr., United States Attorney, and John R Fisher, Thomas C. Black, Thomas J. Tourish, Jr., and S. Hollis Fleischer, Assistant United States Attorneys, Washington, DC, were on the brief, argued the cause for appellee.

Before EDWARDS, Chief Judge, and BUCKLEY and WILLIAMS, Circuit Judges.

Opinion for the court filed by Circuit Judge BUCKLEY.

BUCKLEY, Circuit Judge:

Appellant Thomas Sanchez pleaded guilty to conspiracy to distribute cocaine base and was sentenced to sixty months' imprisonment. He did not appeal. After serving eight months, however, Sanchez filed a pro se motion for habeas corpus relief, which the district court denied. In asking us to overturn that ruling, Sanchez claims, among other things, that because the district court failed to advise him of his right to appeal his sentence, he was denied that right. He also asserts that the court erred in rejecting his claim that the Government had entrapped him into selling crack cocaine instead of powder cocaine in order to impose a harsher sentence on him.

We hold that the district court's failure to advise Sanchez of his right to appeal was error per se. Accordingly, we vacate appellant's sentence and remand for resentencing so that Sanchez may perfect a direct appeal of the new sentence. We conclude, however, that the court's ruling on the entrapment claim was correct.

I. BACKGROUND

On May 25, 1993, Thomas Sanchez appeared in district court with retained counsel and entered a guilty plea to a charge of conspiracy to distribute cocaine base ("crack") in violation of 18 U.S.C. § 371. After determining, in accordance with Rule 11 of the Federal Rules of Criminal Procedure, that Sanchez understood his plea and its implications, the judge heard the Government's proffer of the evidence it would have introduced at trial.

The Government asserted that on January 26, 1993, a confidential informant working with the Drug Enforcement Administration ("DEA") contacted Sanchez and told him he was interested in buying two ounces of crack cocaine. Sanchez replied that he could obtain the crack and would sell him two ounces for $1,700. On January 27, 1993, Sanchez met the DEA informant in an apartment house parking lot and advised him that the crack cocaine was still "cooking" in an upstairs apartment. Ten minutes later, Sanchez told the informant the crack still was not ready. After 20 to 30 minutes, Sanchez emerged from the apartment building and handed the informant approximately 55.5 grams of crack cocaine in exchange for $1,700.

After Sanchez affirmed that these assertions were true, the judge accepted his guilty plea. Sanchez signed a plea agreement and a waiver of jury trial. At a sentencing hearing held on August 3, 1993, the district court sentenced Sanchez to sixty months' imprisonment (the maximum sentence allowed by statute) followed by three years of supervised release. There is no evidence in the transcript of the sentencing hearing that Sanchez was advised of his right to appeal his sentence. He did not file a direct appeal.

On March 21, 1994, Sanchez filed a pro se "Motion to Vacate, Set Aside, or Correct Sentence" pursuant to 28 U.S.C. § 2255, asserting various grounds for relief. Sanchez identified what he believed to be nine errors in his conviction, sentencing hearing, and sentence. Of those nine, two are relevant here. The first is the claim that the Government entrapped Sanchez into selling crack instead of powder cocaine so that it could punish him for the more severe offense and, therefore, the court should have sentenced him for the lesser offense. The second claim is that Sanchez was denied his right to appeal the sentence because his attorney refused his request to file one.

With the exception of one technical error that it corrected, the district court found Sanchez's "objections to be without merit or without any effect on his sentence." United States v. Sanchez, Crim. No. 93-0086 (Order, D.D.C. May 18, 1994) ("Order") at 1. In reaching that conclusion, the court discussed a number of Sanchez's arguments but failed to mention his claim that he had been denied his right of appeal.

After Sanchez filed a pro se appeal from the denial of his section 2255 motion, he was provided court-appointed counsel who submitted a new brief on his behalf. This brief raised the following claims, the second of which had not been mentioned in Sanchez's pro se section 2255 motion: (1) ineffective assistance of trial counsel by virtue of his failure to appeal the sentence, (2) the denial of his right of appeal as a result of the trial court's failure to advise him of that right, and (3) the court's application of an erroneous standard in evaluating the sentencing entrapment claim that Sanchez presented in his section 2255 motion. Because a finding in Sanchez's favor on the second claim will moot the first, we begin with an examination of a trial court's duty to advise a convicted defendant of his right of appeal.

II. DISCUSSION

A. Sanchez's Right to Appeal His Sentence

At the time of the sentencing hearing, the district court was required by Rule 32(a)(2) of the Federal Rules of Criminal Procedure to advise Sanchez of his right to appeal his sentence: "after sentence is imposed following a plea of guilty ... the [district] court shall advise the defendant of any right to appeal the sentence." Fed.R.Crim.P. 32(a)(2) (1993). Although this directive now appears, in revised form, in Rule 32(c)(5), its substance remains unchanged. See Fed.R.Crim.P. 32(c)(5) (1995); Fed.R.Crim.P. 32(c)(5) advisory committee's note. Because Rule 32(a)(2) was in effect at the relevant time, we shall refer to it rather than to its successor.

It is plain from the sentencing hearing record that the trial court failed to advise Sanchez of his right to appeal. Sanchez, however, did not raise this issue in his section 2255 motion. The Government concedes that, in spite of this omission, "because appellant claims a denial of his constitutional right to appeal, his Rule 32(c) claim would be reviewed, in any event." Brief for Appellee at 18. We agree. The Supreme Court has shown an awareness of the formidable problems faced by section 2255 applicants who "prepare their petitions without the assistance of counsel" and who "may not even be aware of errors which occurred at trial." Rodriquez v. United States, 395 U.S. 327, 330, 89 S.Ct. 1715, 1717, 23 L.Ed.2d 340 (1969). In Rodriquez, the petitioner based his claim that he had been denied his right of appeal solely on the failure of his counsel to file one. Id. at 328, 89 S.Ct. at 1717. Nevertheless, the Court concluded sua sponte "from the trial transcript ... that the trial judge erroneously failed to advise petitioner of his right to appeal." Id. at 331, 89 S.Ct. at 1718. We follow the Court's example and reach the same conclusion here. Having done so, and because both parties have briefed the issue, we address the consequences of the trial court's error.

A majority of the circuits that have considered violations of Rule 32(a)(2) have held that a district court's failure to advise a defendant of his right to appeal constitutes error per se that requires an appellate court to vacate the sentence and remand for resentencing. See United States v. Benthien, 434 F.2d 1031, 1032 (1st Cir.1970); Reid v. United States, 69 F.3d 688, 689 (2d Cir.1995); United States v. Deans, 436 F.2d 596, 599 n. 3 (3d Cir.1971); Paige v. United States, 443 F.2d 781, 782 (4th Cir.1971); United States v. Butler, 938 F.2d 702, 703-04 (6th Cir.1991). But see United States v. Drummond, 903 F.2d 1171 (8th Cir.1990) (applying harmless error standard to Rule 32(a)(2) violation); Tress v. United States, 87 F.3d 188 (7th Cir.1996) (overruling previous per se rule and applying harmless error standard). The Ninth Circuit has stated that it "subscribes to the rationale behind the per se rule" but noted that there are "occasions where Rule 32(a)(2) admonishments are unnecessary," such as where the defendant has waived his right to appeal in a plea agreement. Biro v. United States, 24 F.3d 1140, 1142 (9th Cir.1994).

The rationale for holding that a Rule 32(a)(2) violation constitutes error per se is clear:

The obvious purpose of Rule 32(a)(2) is to insure that all defendants who might wish to appeal are fully aware of their appeal rights. That purpose ... is best served by allowing a section 2255 motion to reinstate an appeal whenever the trial court has failed to comply with the rule, without regard to whether or not the defendant had obtained knowledge of his rights from some other source.... Our holding insures that all defendants will receive the protection the rule was intended to provide. It will at the same time serve to warn district judges of the necessity of strict compliance.

Benthien, 434 F.2d at 1032. Moreover, "the policy of preventing excessive litigation [over whether the defendant had been fully informed of his rights by his counsel] justifies a strict and literal enforcement of Rule 32(a)(2)." Reid, 69 F.3d at 689. Accordingly, we join the majority of circuits that have considered the issue and hold that (1) the rule "is specific in its command," Paige, 443 F.2d at 782, and (2) the failure of the district court to advise Sanchez of his right to appeal his sentence was error per se that requires a remand for...