UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                      No. 98-6843

NATHANIEL RENARD CHILES,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of Virginia, at Roanoke.
James C. Turk, District Judge.
(CR-94-7, CA-97-305-R)

Submitted: December 22, 1998

Decided: January 20, 1999

Before WIDENER and WILKINS, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.

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Vacated and remanded by unpublished per curiam opinion.

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COUNSEL

Nathaniel Renard Chiles, Appellant Pro Se. Joseph William Hooge
Mott, Assistant United States Attorney, Roanoke, Virginia, for Appel-
lee.

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Unpublished opinions are not binding precedent in this circuit.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

PER CURIAM:

Nathaniel R. Chiles appeals from the district court's orders denying
his 28 U.S.C.A. § 2255 (West 1994 & Supp. 1998), motion and deny-
ing his motion for reconsideration. Because we find that the district
court erred in failing to inform Chiles of his appeal rights, we grant
a certificate of appealability, vacate the order of the district court, and
remand with instructions.

Chiles pled guilty to conspiracy to distribute cocaine and money
laundering. In his plea agreement, Chiles agreed that after a "full and
fair sentencing hearing," he would not "appeal sentencing guidelines
factors or the Court's application of the sentencing guidelines factors
to the facts of [his] case." He elucidated this waiver more fully by
agreeing that he was "knowingly and voluntarily waiving any right to
appeal sentencing guidelines factors, and [was] voluntarily willing to
rely on the Court in sentencing [him] under the sentencing guide-
lines."

At the outset of Chiles' sentencing hearing, he moved for a contin-
uance to secure witnesses. His motion was denied. During the hear-
ing, no evidence was submitted, and no witnesses were presented for
either side. After calculating the proper guidelines range, the court
sentenced Chiles in the middle of the applicable range to 148 month
imprisonment and five years of supervised release. The court then
directed that Chiles "be given credit for the 118 days that [he] spent
in custody in Greene County on the related count[ ]."1 The court did
not inform Chiles that he had any rights to appeal.

In April 1997, Chiles filed the instant § 2255 motion, raising a mul-
titude of claims involving, inter alia, Fed. R. Crim. P. 32 errors, inef-
fective assistance of counsel, and due process violations at his
sentencing hearing. The district court denied Chiles' § 2255 motion
and his motion for reconsideration. Chiles appeals.
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1 The Greene county conviction is not detailed in the sentencing tran-
script. However, it is clear that the court included that crime as relevant
conduct rather than assessing criminal history points for that conviction.

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Chiles argues that the sentencing court erred by failing to notify
him of his appeal rights as required by Rule 32(a)(2). We have held
that when a sentencing court fails to advise a defendant of his appeal
rights, the criminal judgment should be remanded for resentencing.
See Paige v. United States, 443 F.2d 781, 782 (4th Cir. 1971). How-
ever, in Paige, the defendant had not waived his appeal rights in a
plea agreement. The district court distinguished Paige on that basis
and found that, although it was undisputed that Chiles was not
informed of his appeal rights, he was not entitled to relief.

In support of its position, the district court cited Everard v. United
States, 102 F.3d 763 (6th Cir. 1996), cert. denied, ___ U.S. ___, 65
U.S.L.W. 3570 (U.S. Feb. 18, 1997) (No. 96-7463). In Everard, the
Defendant agreed "not to appeal or otherwise challenge the constitu-
tionality or legality of the sentencing guidelines." 102 F.3d at 764.
After not being informed of his appeal rights at his sentencing hear-
ing, Everard filed a § 2255 motion seeking to be resentenced. The
Sixth Circuit found that cases giving a strict reading to Rule 32, e.g.
Paige, did not apply when a defendant knowingly and voluntarily
waived his right to appeal. While the Sixth Circuit did note that the
case was complicated by Everard's incomplete waiver of all rights,
the court found that Everard did not show any possible ground for
appeal aside from sentencing guidelines issues. Thus, because Eve-
rard had agreed to waive his appeal rights regarding the issues he
wished to appeal, the Sixth Circuit found that the district court did not
err by failing to inform him of a right that no longer existed. See id.
at 764-66 & n.2.

The Second Circuit found similarly in Valente v. United States, 111
F.3d 290 (2d Cir. 1997). In that case, Valente agreed that he would
"not appeal or otherwise challenge at any time a sentence imposed by
the Court provided such sentence is ten (10) years imprisonment." Id.
at 292. Valente was sentenced, as agreed, to ten years in prison, and
he was not informed of his appeal rights. The Second Circuit held
that, because Valente sought to challenge sentencing guidelines
issues, Valente had waived his right to appeal and was not entitled to
Rule 32 notifications. However, the Second Circuit, like the Everard
court, noted that Valente's specific waiver did not waive all rights to
appeal. Therefore, the court stated, in dicta, that resentencing would

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have been required if Valente had raised non waivable claims or
claims outside the scope of the waiver. See id. at 292-93 & n.3.

We find that this case falls squarely into the exception noted in
Everard and Valente. Chiles specifically waived only his right to
challenge guidelines issues decided after a full and fair hearing. How-
ever, Chiles explicitly points to appellate issues that do not fall into
the scope of this waiver: (1) violation of the Rule 32 requirement that
the presentence report be delivered to a defendant at least seven days
before sentencing, (2) improper sentencing on materially false infor-
mation (due process claim and claim that he was not afforded a full
and fair hearing), and (3) improper sentence directing the Bureau of
Prisons to grant credit it was legally barred from granting. These
issues do not involve either application or interpretation of the sen-
tencing guidelines, and they challenge the due process afforded at
Chiles' sentencing hearing, the fairness of which was a condition of
his waiver.

Because the failure of the court to inform Chiles of his appeal
rights has prevented him from bringing these unwaived claims on
direct review, we find that Chiles is entitled to a resentencing hearing
with the proper notifications.2 Accordingly, we grant Chiles' motion
for a certificate of appealability, vacate the order of the district court,
and remand with instructions to vacate Chiles' sentence and resen-
tence him with proper notification of his appeal rights. We dismiss the
remainder of Chiles' claims without prejudice. We dispense with oral
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2 The district court held that Chiles' claim that he did not receive a full
and fair hearing was meritless. However, Chiles need not show the likeli-
hood of success on the merits of his proposed appeal. See Rodriguez v.
United States, 395 U.S. 327, 329-30 (1969) ("Those whose right to
appeal has been frustrated should be treated like any other appellants;
they should not be given an additional hurdle to clear just because their
rights were violated at some earlier stage in the proceedings."). Even if
the substance of Chiles' claims lacks merit, a § 2255 motion is not a sub-
stitute for direct appeal, and the district court erred by ruling on his pro-
posed appellate issues. As opposed to the current motion, relief on direct
appeal is not limited to constitutional or jurisdictional errors. Addition-
ally, on direct appeal, Chiles would be constitutionally entitled to the
assistance of counsel. See Douglas v. California , 372 U.S. 353, 355
(1963).

                    4
argument because the facts and legal contentions are adequately pre-
sented in the materials before the court and argument would not aid
the decisional process.

VACATED AND REMANDED

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