UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 96-20777
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BETTY CONLEY,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
(H 94-CR-282-7)
_________________________________________________________________
August 18, 1997
Before JONES, EMILIO M. GARZA and PARKER, Circuit Judges.
PER CURIAM:1
Betty Conley was convicted after a bench trial of
conspiracy to possess with intent to distribute cocaine base in
violation of 21 U.S.C. §§ 841(b)(1)(A) and 846. She was
sentenced to 240 months’ imprisonment, followed by 120 months’
supervised release. Conley raises five arguments on appeal.
Finding no reversible error, we affirm.
1
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
Conley first argues that the district court erred in
denying her motion to dismiss the indictment on the grounds that
it violates her right to a speedy trial under the Sixth
Amendment. Although the delay between charging and trial in this
case was longer than a year, we conclude that Conley’s right to a
speedy trial was not violated. See Barker v. Wingo, 407 U.S. 514,
530, 92 S.Ct. 2182, 2192 (1972). The delay was primarily
attributable to the over twelve motions filed by Conley,
including a motion for the appointment of an independent expert
to determine her mental competency and a motion to continue the
hearing on her motion to suppress. Furthermore, other than
conclusional allegations, Conley has not provided any specific
information showing any prejudice from the delay. See Robinson v.
Whitley, 2 F.3d 562, 571 (5th Cir. 1993).
In her second and third arguments, Conley asserts that
the district court erred in denying a downward departure for her
extraordinary physical impairment. Conley does not assert that
the district court believed it lacked authority to depart from
the guidelines, thus, the refusal to depart downward is not a
reviewable issue. See United States v. Burleson, 22 F.3d 93, 95
(5th Cir.), cert. denied, 513 U.S. 911 (1994); United States v.
Leonard, 61 F.3d 1181, 1185 & n.3 (5th Cir. 1995).
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Fourth, Conley argues that the district court erred by
enhancing her sentence based on a prior conviction without
conducting the required hearing under 21 U.S.C. § 851(c). Conley
filed a “Motion to Disregard Alleged Prior Conviction” urging
that she was provided ineffective assistance in connection with
the prior conviction, and, accordingly, had entered an uninformed
guilty plea. The district court denied her motion without a
hearing.
In her affidavit filed in support of her motion, Conley
claims that her attorney in the prior case never informed her of
the offense to which she was pleading guilty to, the possible
punishment, or that she had a right to a jury trial. She also
alleges that her attorney did not examine the drugs held by the
state in that case. The government filed copies of Conley’s
written plea of guilty in the prior case, which was sworn to by
Conley, as well as the plea agreement, the indictment, the
judgment and the transcript of the plea proceeding. The written
plea of guilty states that Conley understood the charges and she
was waiving her right to a jury trial. The plea colloquy reveals
that Conley told the judge in the prior case that she understood
the charge and the range of punishment, she understood that she
could not appeal, she was not forced to plead guilty, and she
swore that her statements in the written plea of guilty were
correct. The government also alleges that Conley waived her
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right to a hearing under § 851(c) because she acquiesced to the
procedure followed by the district court.
Even if Conley did not waive this error, any error by the
district court in refusing to hold a hearing on the validity of
the prior conviction was harmless. See FED. R. CRIM. P. 52(a).
Conley’s testimony in open court at the time of the prior guilty
plea has a strong presumption of validity. See United States v.
Abreo, 30 F.3d 29, 31 (5th Cir.) (citing Blackledge v. Allison,
431 U.S. 63, 74, 97 S.Ct. 1621, 1629 (1977)), cert. denied, 513
U.S. 1064 (1994). See also United States v. Smith, 844 F.2d 203,
208 (5th Cir. 1988). The plea colloquy reveals that Conley swore
in open court that she understood the charges and the possible
sentence, that she would have no right to appeal, and that the
statements in her written and sworn guilty plea were correct.
The sworn guilty plea indicates that Conley was informed of and
waived her right to a jury trial. In the face of these prior
sworn statements in writing and in open court, it was not
prejudicial to Conley’s substantial rights that the district
court did not conduct a hearing on her allegations that her
lawyer did not inform her of the charges or her right to a jury
trial.
In her final point, Conley argues that the district court
erred in denying her motion to sentence her under the safety-
valve provision of 18 U.S.C. § 3553(f) and § 5C1.2. However, the
district court did not err in failing to apply the safety-valve
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provision to Conley’s case because she has more than one criminal
history point and because she did not provide to the government
all information and evidence she had concerning the offense. See
§ 5C1.2.
AFFIRMED.
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