Appellants William R. Joule and David Collyer Wright, having been found guilty in a jury trial of conspiracy to possess marijuana in violation of 21 U.S.C.A. §§ 841(a), 846, appeal from their sentences as imposed by the trial court. They argue that the trial court effectively penalized them for exercising their constitutionally guaranteed rights by urging them to "come clean" prior to imposing sentence. We agree and therefore vacate and remand for resentencing.

Appellants Wright and Joule do not challenge their underlying conviction for conspiracy and we therefore need not consider the facts surrounding their offense.1 They base their appeal entirely on various comments made by the trial court at the beginning of their trial and immediately prior to sentencing. These comments are set forth more fully in the margin.2 Appellants argue that these comments show that the trial court imposed a more severe sentence on them because of the exercise of their constitutionally guaranteed rights to trial by jury and to remain silent.

In Thomas v. United States, 5 Cir., 1966, 368 F.2d 941, this court established the rule that a trial court may not pressure defendants, who have been found guilty following a trial by jury, to confess their guilt prior to the imposition of sentence. In that case, where appellants had been sentenced to the maximum statutory term, this court vacated and remanded for resentencing under its supervisory powers, because such comments had infringed on basic constitutional rights of the appellants. In Bertrand v. United States, 5 Cir., 1972, 467 F.2d 901, the rule was extended to the situation where a trial court at sentencing pressured a defendant to admit his guilt in a crime other than that to which he had pleaded guilty and for which he was being sentenced. Finally, in United States v. Rogers, 5 Cir., 1974, 504 F.2d 1079, this court found the Thomas rule to be equally applicable, where the defendant was urged to "sing" about others involved in the conspiracy.

The United States Attorney argues that the comments of the trial court, when taken in the context of the entire record, were not prejudicial. This is based on the fact that appellants had been found guilty and that each did in fact admit his guilt and express regret at his complicity in the crime and that, moreover, none of the appellants received the maximum possible sentence.3 The law of this circuit is nonetheless clear, however, in prohibiting such comments by the district court at the time of sentencing. A defendant does not lose his right to appeal or to continue to assert his innocence simply because the verdict of the jury is guilty. Moreover, the fact that the maximum statutory term was not imposed is not dispositive of the issue. In United States v. Rodriguez, 5 Cir., 1974, 498 F.2d 302, 312-13, the sentence imposed was three years for one appellant and five years for another, each of whom refused to admit his guilt. In contrast, a sentence of five years for another appellant was suspended for all but six months after he admitted his guilt. This court found that the pattern of sentencing combined with the district court's comments to all of the defendants constituted plain error, and vacated the sentences of the first two appellants.

Appellants here argue strenuously that, because the district court in this case was the same as in Rodriguez, supra, we should remand to a different judge for resentencing. We are confident, however, that the court below will properly exercise its discretion in resentencing without penalizing appellants for the proper exercise of their constitutional rights. We feel this to be so, in light of the various mitigating factors that the United States Attorney argues should have required affirmance of the sentencing. We therefore vacate the sentence imposed by the court below and remand for resentencing, not inconsistent with the decisions of this court discussed above.

VACATED and REMANDED.