*

Honorable Maurice B. Cohill, Jr., Senior U.S. District

Judge for the Western District of Pennsylvania, sitting by

designation. 

 1Appellant's other issues are either rendered moot by our

holding or do not require discussion. 

United States Court of Appeals,

Eleventh Circuit.

No. 95-3343.

Otis THOMPSON, Petitioner-Appellant,

v.

UNITED STATES of America, Respondent-Appellee.

April 29, 1997.

Appeal from the United States District Court for the Northern

District of Florida. (No. 93-40086WS), William Stafford, Judge.

Before DUBINA and BLACK, Circuit Judges, and COHILL*

, Senior

District Judge.

PER CURIAM:

Appellant Otis Thompson appeals the district court's denial of

his habeas petition. 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 Presentence 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
 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). 

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 (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.