                      United States Court of Appeals,

                               Eleventh Circuit.

                                  No. 94-4774

                            Non-Argument Calendar.

                 Robert MONTEMOINO, Petitioner-Appellant,

                                        v.

             UNITED STATES of America, Respondent-Appellee.

                                Oct. 20, 1995.

Appeal from the United States District Court for the Southern
District of Florida. (Nos. 94-37-CIV, 91-742-CR), James W. Kehoe,
Judge.

Before DUBINA, CARNES and BARKETT, Circuit Judges.

       PER CURIAM:

       Robert Montemoino was convicted, based upon his guilty plea,

of conspiracy to possess with intent to distribute cocaine. He did

not appeal his conviction or sentence.                  Thereafter, Montemoino

filed a 28 U.S.C. § 2255 petition raising a large number of grounds

for    relief.       The    district   court      denied   that    petition,     and

Montemoino appeals.

        The district court's denial of the petition was proper,

except in one respect.        One of the grounds Montemoino raised in the

petition was that his attorney had rendered ineffective assistance

of counsel by failing to appeal his sentence.                Montemoino alleged

in the petition that he had requested his attorney to file a notice

of appeal, but the attorney failed to do so.               Nothing in the record

of    the   guilty   plea    proceeding      or   the   record    of   the   §   2255

proceeding contradicts Montemoino's allegation. The district court

did not hold a hearing on the petition.
      This Court has long held that an attorney's failure to file

an appeal after the defendant requests him to do so entitles the

defendant to an out-of-time appeal, even without a showing that

there would have been any viable grounds for an appeal.    See e.g.,

Gray v. United States, 834 F.2d 967, 967-68 (11th Cir.1987);    see

also Ferguson v. United States,    699 F.2d 1071, 1072-73 (11th

Cir.1983) (and cases cited therein).   However, this Court has also

held that a different rule applies to guilty plea cases, because:

     [t]he considerations ... underlying an acceptance of a guilty
     plea are quite different from the considerations underlying a
     defendant's decision to take a direct appeal from a judgment
     of conviction.    A guilty plea, since it admits all the
     elements   of   a   formal  criminal   charge,   waives   all
     non-jurisdictional defects in the proceedings against a
     defendant.    Absent a jurisdictional defect, a defendant
     usually has no right to appeal from a plea of guilty.

Ferguson, 699 F.2d at 1073 (quoting Barrientos v. United States,

668 F.2d 838, 842-43 (5th Cir.1982) (citations omitted).    Because

the few grounds upon which the guilty plea may be challenged are

not limited to direct appellate review, but instead are more

appropriately raised in § 2255 proceedings, an attorney's failure

to file a direct appeal from a guilty plea "does not constitute

ineffective assistance of counsel since it causes no harm to the

defendant."   Ferguson, 699 F.2d at 1073.

      At first blush, the Ferguson rule would appear to foreclose

Montemoino's claim that his attorney's failure to file an appeal

constituted ineffective assistance of counsel.   However, Ferguson

is a pre-Sentencing Guidelines case.    See U.S.S.G. ch. 1, pt. A

(observing that the Sentencing Guidelines took effect November 1,

1987).   Absent an express waiver of the right to appeal his

sentence, a defendant who pleads guilty and is sentenced under the
Guidelines has a right to direct appeal of his sentence.                   See

United States v. Bushert, 997 F.2d 1343 (11th Cir.1993).                Because

of that opportunity, a defendant has no right to raise Guidelines

sentencing issues in a § 2255 proceeding.               See Cross v. United

States, 893 F.2d 1287, 1289 (11th Cir.), cert. denied, 498 U.S.

849,   111    S.Ct.   138,   112   L.Ed.2d   105    (1990)   (holding   that   a

petitioner may not litigate claims in a § 2255 proceeding that were

not raised on direct appeal absent a showing of both cause and

actual prejudice).      The reasoning that underlies the Ferguson rule

in pre-Guidelines cases does not apply insofar as sentencing issues

in Guidelines cases are concerned, because none of the Guidelines

sentencing issues available to the defendant are waived by the

plea, unless there is an express waiver of the right to appeal the

sentence that complies with the requirements of Bushert. There was

none in this case.

       Accordingly, if Montemoino requested his counsel to file an

appeal, and counsel failed to do so, Montemoino is entitled to an

out-of-time appeal on any sentencing issues.            Such an appeal would

extend only to sentencing issues.            The     Ferguson rule is still

applicable insofar as guilt stage, or guilty plea validity, issues

are concerned, because those issues can be raised in a § 2255

proceeding.       They were in this case, and the district court

properly rejected them on the merits.

       We    remand   for    an    evidentiary     hearing   on   Montemoino's

allegation that he requested his counsel to file a direct appeal.

If the district court finds that Montemoino did make such a

request, it should enter an order granting an out-of-time appeal
limited to sentencing issues.

     AFFIRMED IN PART, AND REVERSED AND REMANDED IN PART.
