Guidelines do not apply to the instant case, this defendant has no clear right to be specifically notified of his right to appeal his sentence. However, he is entitled to be notified of his right to appeal.
Both before and after the aforesaid amendment, Rule 32(a)(2) has been interpreted to mandate that district courts advise defendants of their appeal rights. See United States v. Ferraro, 992 F.2d 10, 11-12 (2d Cir. 1993) (per curiam) (citing United States v. Butler, 938 F.2d 702, 703 (6th Cir. 1991); Paige v. United States, 443 F.2d 781, 782 (4th Cir. 1971); United States v. Deans, 436 F.2d 596, 599 (3d Cir.), cert. denied, 403 U.S. 911, 29 L. Ed. 2d 688, 91 S. Ct. 2211 (1971); United States v. Benthien, 434 F.2d 1031, 1032 (1st Cir. 1970); Nance v. United States, 422 F.2d 590, 591-92 (7th Cir. 1970)). This mandatory rule is designed to spare courts from having to inquire after the fact into whether defendants were aware of that right even though not specifically advised of that right by the Court. See, e.g., Ferraro, supra, 992 F.2d at 12; United States v. Drummond, 903 F.2d 1171, 1176-78 (8th Cir. 1990) (Heaney, J., dissenting), cert. denied, 498 U.S. 1049, 111 S. Ct. 759, 112 L. Ed. 2d 779 (1991); Fed. R. Crim. P. 32 advisory committee's note, 1966 Amendment (requiring courts to advise defendants of their right to appeal to prevent litigation caused by trial counsels's frequent failures to do so).
The only serious question here is whether that bright line rule should be applied where, as here, a defendant has already taken an appeal from his conviction on the merits, and where all issues arising out of his conviction, including those issues relating to his sentence, could have been raised, and where, therefore, the policy considerations underlying the bright line rule may not be applicable, especially given the limited appellate jurisdiction to review sentencing issues in a pre-Guidelines case.
The Court concludes that given the language of the Rule and the interpretations placed on it by this Circuit, that it ought to apply the bright line rule notwithstanding the considerations noted above, resentence the defendant, and let the Court of Appeals determine the correctness of the applicability of that rule on the unique facts of this case. In so doing the Court expresses no view as to whether on that appeal the defendant should be permitted to raise issues that could or should have been raised on his first appeal.
For the reasons stated above, petitioner's motion for a reduction of his offense level is denied. The Clerk of Court is directed to close the above-captioned action.
It is SO ORDERED.
Dated: New York, New York
August 24, 1993
John E. Sprizzo
United States District Judge