United States v. Keith Butler
Cases that cite this one
15 later published cases cite this decision.
- William C. Everard v. United States (6th Cir. 1996)
- United States v. Donelle Fleming (6th Cir. 2001)
- United States v. Libby (District Court, E.D. Michigan 1992)
- Diaz v. United States (United States District Court for the Southern District of Georgia 2016)
- Thompson v. United States (11th Cir. 1997)
- Brian J. Tress v. United States (7th Cir. 1996)
- United States v. Thomas Sanchez, A/K/A Aquilino Batista, A/K/A Steve Sanchez, A/K/A Thomas Sanchez Batista (D.C. Cir. 1996)
- Zoltan Attila Biro v. United States (9th Cir. 1994)
- United States v. Michael Alan Brown (10th Cir. 1994)
- United States v. Ferraro (2d Cir. 1993)
- Keith Butler, (No. 93-5250) James Henry Crawford, Jr., (No. 93-5363) v. United States of America, (Nos. 93-5250/5363) (6th Cir. 1993)
- Hernandez v. United States (District Court, E.D. New York 1993)
- Prioleau v. United States (District Court, S.D. New York 1993)
- United States v. Ferraro (2d Cir. 1993)
- United States v. Aloi (District Court, N.D. Ohio 1991)
This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.
Opinion
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).
*704 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).
Case-law data current through December 31, 2025. Source: CourtListener bulk data.