UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 92-6334

MICHAEL DENNIS TALBOTT,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
Terrence W. Boyle, District Judge.
(CR-88-17-5, CA-91-97-CIV-5)

Submitted: August 15, 1995

Decided: August 13, 1996

Before WIDENER, HALL, and ERVIN, Circuit Judges.

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Vacated and remanded by unpublished per curiam opinion.

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COUNSEL

Michael Dennis Talbott, Appellant Pro Se. Linda Kaye Teal, OFFICE
OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina,
for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

Michael Talbott appeals the denial of his 28 U.S.C.§ 2255 (1988)
motion in which he raised over 100 claims. Our review of the record
reveals that the district court did not advise Talbott, at resentencing
on October 19, 1990, of his right to appeal. Our review further dis-
closes that Talbott was subject to a guideline1 sentence of fifteen
years for his convictions on six counts of the indictment. At resen-
tencing, Talbott received an aggregate sentence of nineteen years and
three months for those convictions. We vacate Talbott's sentence and
remand for resentencing and reinstatement of his appellate rights.

I

In an earlier opinion, we discussed the various firearms offenses of
which Talbott stands convicted. United States v. Talbott, 902 F.2d
1129 (4th Cir. 1990). While we affirmed his convictions, we deter-
mined that the district court improperly sentenced him to consecutive
sentences for possession and non-registration of each of two pipe-
bombs. Further, we held that the district court erred when it found that
Talbott qualified as a career criminal under the sentencing guidelines.
We vacated his sentence of forty-five years and remanded for resen-
tencing. Id. at 1132-33.

At resentencing, the district court grouped Counts 4, 5, 7, and 8
(charging possession and non-registration of two pipebombs) and sen-
tenced Talbott to fifty-one months on those counts. The district court
erroneously identified Counts 12 and 14 (charging possession by a
felon of the same pipebombs) as non-guideline counts because the
applicable statute, 18 U.S.C.A. § 924(e)(1) (West Supp. 1996), man-
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1 United States Sentencing Commission, Guidelines Manual (Nov.
1988). Talbott originally was sentenced on January 12, 1989. He was
resentenced on October 17, 1990. The base offense level applicable to
Talbott increased with the version of the guidelines in effect at resentenc-
ing. To avoid an ex post facto problem, the 1988 version of the guide-
lines continued to apply. United States v. Fagan, 996 F.2d 1009, 1018
(9th Cir. 1993).

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dated a fifteen-year sentence. The court sentenced Talbott to fifteen
years on each of those counts, to run concurrently with each other but
consecutively to the guideline sentence imposed on Counts 4, 5, 7,
and 8. Finally, the district court sentenced Talbott to five years on
each of two pre-guideline counts, to run concurrently with the other
sentences.

The district court did not advise Talbott of his appeal rights at
resentencing, and Talbott did not appeal his new sentence. Instead, he
filed the subject § 2255 motion. The district court declined to consider
those claims that were identical to those rejected by this court on
direct appeal. The district court found that most of Talbott's claims
did not raise constitutional issues and so were not cognizable in a
§ 2255 motion. The district court rejected on the merits Talbott's
assertions that his attorney was ineffective and that his sentence on
Counts 12 and 14 violated double jeopardy principles. Talbott timely
appealed.

II

The guidelines in this case were improperly applied. The error
stemmed from a misunderstanding of the guidelines' interplay with
§ 924(e)(1) and the incorrect assumption that Counts 12 and 14 were
non-guideline counts.

The district court should have grouped Counts 12 and 14 with
Counts 4, 5, 7, and 8 because the six counts involved "substantially
the same harm." USSG § 3D1.2(a), (b). The base offense level for the
most serious of these grouped offenses, USSG § 3D1.3(a) (Counts 4,
5, 7, and 8), was 12. USSG § 2K2.2. Added to this were two points
for Talbott's major role in the offense, USSG § 3B1.1(c), and two
points for obstruction of justice, USSG § 3C1.1. Talbott's total
offense level therefore was 16; factoring in his criminal history cate-
gory of V resulted in a guideline range of 41-51 months.

"If application of the guidelines results in a sentence below the
minimum sentence required by statute, the statutory minimum shall
be the guideline sentence." USSG § 5G1.1(b). Under § 924(e)(1), Tal-
bott was statutorily subject to a fifteen-year mandatory minimum sen-

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tence on Counts 12 and 14.2 His guideline range was less than the
statutory minimum, and he thus was subject to a fifteen-year sentence
on the six guideline counts.

III

The rule in this circuit is clear: failure to advise a defendant of his
right to appeal requires remand. Paige v. United States, 443 F.2d 781,
782 (4th Cir. 1971). This rule applies with equal force to resentenc-
ings. See Fed. R. Crim. P. 32(c)(5) ("After imposing sentence in any
case, the court must advise the defendant of any right to appeal the
sentence") (emphasis added). Talbott was not advised of his right to
appeal his resentencing. Remand for resentencing therefore is
required. The guidelines require a sentence of fifteen years on Counts
4, 5, 7, 8, 12, and 14. We express no opinion as to whether the district
court should depart from this fifteen-year sentence.

IV

We therefore vacate Talbott's sentence and remand for resentenc-
ing and reinstatement of his right to appeal his sentence. We dispense
with oral argument because the facts and legal contentions are ade-
quately presented in the materials before us and argument would not
aid the decisional process. The motions for bail, to appoint counsel,
seeking formal briefing schedule, and to file formal briefs are denied.
In light of our decision, the motion for a ruling in this case is denied.

VACATED AND REMANDED
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2 Under § 924(e)(1), a person convicted of being a felon in possession
of a firearm, in violation of 18 U.S.C.A. § 922(g)(1), and who has three
previous convictions for violent felonies or drug offenses, or both, is sub-
ject to a mandatory minimum sentence of fifteen years. Talbott's convic-
tions on Counts 12 and 14 were for § 922(g)(1) offenses.

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