United States v. Shulman ( 1996 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 95-5603
ROBERT SHULMAN,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 95-7222
ROBERT SHULMAN,
Defendant-Appellant.
Appeals from the United States District Court
for the District of Maryland, at Baltimore.
John R. Hargrove, Senior District Judge.
(CR-91-378-HAR, CA-95-1149-HAR)
Submitted: January 30, 1996
Decided: May 13, 1996
Before WILKINSON, Chief Judge, WILLIAMS, Circuit Judge, and
CHAPMAN, Senior Circuit Judge.
_________________________________________________________________
No. 95-5603 dismissed and No. 95-7222 vacated and remanded by
unpublished per curiam opinion.
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COUNSEL
Alan Ellis, Peter Goldberger, James H. Feldman, Jr., LAW OFFICES
OF ALAN ELLIS, P.C., Ardmore, Pennsylvania, for Appellant.
Lynne A. Battaglia, United States Attorney, Gary P. Jordan, First
Assistant United States Attorney, Lawrence G. McDade, Deputy
Director, Office of Consumer Litigation, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
In 1992, Robert Shulman pled guilty to conspiracy to evade Food
& Drug Administration (FDA) regulations, 18 U.S.C.A.§ 371 (West
Supp. 1995); obstruction of federal agency proceedings, 18 U.S.C.A.
§ 1505 (West Supp. 1995), 18 U.S.C. § 2 (1988); wire fraud, 18
U.S.C.A. § 1343 (West Supp. 1995), 18 U.S.C.§ 2; and making false
statements to a federal agency, 18 U.S.C.A. § 1001 (West Supp.
1995), 18 U.S.C. § 2. In January 1993, Shulman was sentenced to
serve a term of 60 months imprisonment.1 He did not appeal.
In 1995, Shulman filed a motion to vacate sentence under 28
U.S.C. § 2255 (1988), challenging his sentence on various grounds
and asserting that the district court violated Federal Rule of Criminal
Procedure 32(a)(2)2 by failing to inform him of his right to appeal his
sentence. The district court denied Shulman's § 2255 motion but
granted him ten days to file a belated appeal from his sentence. Shul-
_________________________________________________________________
1 Shulman also pled guilty to a violation of the Sherman Act, 15
U.S.C.A. § 1 (1988), which was charged separately. He received a 21-
month concurrent sentence which he does not challenge.
2 Now Fed. R. Crim. P. 32(c)(5).
2
man subsequently noted an appeal from the original sentencing order
and also from the denial of his § 2255 motion. We dismiss the appeal
from the original sentence for lack of jurisdiction. We vacate the
order denying Shulman's § 2255 motion and remand for resentencing.
No. 95-5603
In criminal cases, a defendant must file his notice of appeal within
ten days of the entry of judgment. Fed. R. App. P. 4(b). The district
court may extend the time for filing a notice of appeal for thirty days
upon a showing of excusable neglect with or without a motion being
filed, but may not otherwise extend the time for filing a notice of
appeal. United States v. Reyes, 759 F.2d 351, 353 (4th Cir.), cert.
denied, 474 U.S. 857 (1985); United States v. Schuchardt, 685 F.2d
901 (4th Cir. 1982).
Although on July 18, 1995, the district court granted Shulman ten
days to appeal from his 1993 sentence and Shulman filed a notice of
appeal within ten days, the notice of appeal is ineffective because the
district court lacked authority to extend the time for filing beyond
forty days after entry of judgment. Fed. R. App. P. 26(b); Schuchardt,
685 F.2d at 902. While the government states that the district court
entered a new judgment, neither the district court's order nor the dis-
trict court docket sheet reflects the reentry of judgment. Conse-
quently, this Court is without jurisdiction to hear the appeal.
No. 95-7222
Under Fed. R. Crim. P. 32(c)(5) and former subdivision (a)(2), a
defendant must be apprised at sentencing of his right to appeal. At the
time Shulman was sentenced, the Rule required that a defendant who
had entered a guilty plea be informed of his right to appeal his sen-
tence. This Circuit and most other circuits have held that a failure to
advise a defendant of his right to appeal is per se reversible error
requiring resentencing. Paige v. United States , 443 F.2d 781, 782 (4th
Cir. 1971); see also Reid v. United States, 69 F.3d 688, 689 (2d Cir.
1995); Biro v. United States, 24 F.3d 1140, 1141-42 (9th Cir. 1994);
United States v. Deans, 436 F.2d 596, 599 n.3 (3d Cir.), cert. denied,
403 U.S. 911 (1971); United States v. Benthien , 434 F.2d 1031 (1st
Cir. 1970); Nance v. United States, 422 F.2d 590, 592 (7th Cir. 1970);
3
United States v. Smith, 387 F.2d 268, 270-71 (6th Cir. 1967); but see
United States v. Drummond, 903 F.2d 1171, 1173-75 (8th Cir. 1990),
cert. denied, 498 U.S. 1049 (1991) (failure to notify defendant of
right to appeal is harmless error if defendant knew of right to appeal);
see also McCumber v. United States, 30 F.3d 78, 79-80 (8th Cir.
1994) (applying harmless error test in guilty plea context). The gov-
ernment concedes that the district court failed to inform Shulman at
sentencing that he had the right to appeal his sentence. Under Paige,
resentencing is therefore required.
Shulman requests that he be resentenced by a different judge.
Under the test adopted by this Court in United States v. Guglielmi,
929 F.2d 1001, 1007 (4th Cir. 1991), remand to a different judge may
be appropriate in certain circumstances even though the judge has not
demonstrated bias. The test is:
(1) Whether the original judge would reasonably be
expected upon remand to have substantial difficulty in
putting out of his or her mind previously expressed
views or findings determined to be erroneous or based
on evidence that must be rejected,
(2) Whether reassignment is advisable to preserve the
appearance of justice, and
(3) Whether reassignment would entail waste and duplica-
tion out of proportion to any gain in preserving the
appearance of justice.
Shulman maintains that resentencing before a different judge is
necessary to preserve the appearance of justice because the district
court would have difficulty setting aside its previously expressed
view that his company's fraud in getting FDA approval for its generic
drugs necessarily meant that his customers received nothing of value
for their money. We discern no basis for holding that Judge Hargrove
would be unable or unwilling to make any necessary findings when
resentencing Shulman. Reassignment would require another judge to
expend time in becoming familiar with the record in Shulman's case.
4
We therefore dismiss the appeal in No. 95-5603 for lack of juris-
diction. We vacate the district court's order denying Shulman's
§ 2255 motion and remand for resentencing. We dispense with oral
argument because the facts and legal contentions are adequately pres-
ented in the materials before the court and argument would not aid the
decisional process.
No. 95-5603 - DISMISSED
No. 95-7222 - VACATED AND REMANDED
5