United States v. Alford

REVISED - June 18, 1998

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 97-50642
_____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

BILLY MEL ALFORD,

Defendant-Appellant.

_________________________________________________________________

Appeal from the United States District Court
for the Western District of Texas
_________________________________________________________________
May 28, 1998
Before WISDOM, KING, and DAVIS, Circuit Judges.

KING, Circuit Judge:

Defendant-appellant Billy Mel Alford appeals his

conviction and sentence for four counts of importation of

marijuana in violation of 21 U.S.C. §§ 952(a) and 960(a)(1) and

four counts of possession of marijuana with intent to distribute

in violation of 21 U.S.C. § 841(a)(1). For the reasons set forth

below, we affirm in part, vacate in part, and remand.

I. FACTUAL BACKGROUND

On January 9, 1997, Billy Mel Alford was charged in a two-

count indictment with importation of marijuana and possession of
marijuana with intent to distribute on or about November 27,

1996. Alford was arraigned on this indictment on February 4,

1997. On February 27, 1997, Alford was charged in a ten-count

superseding indictment. Counts 1 and 2 of the superseding

indictment charged Alford with importation of marijuana and

possession of marijuana with intent to distribute in or about

February 1996; counts 3 and 4 charged him with importation of

marijuana and possession of marijuana with intent to distribute

on or about April 22, 1996; counts 5 and 6 charged him with

importation of marijuana and possession of marijuana with intent

to distribute between on or about May 26, 1996 and June 2, 1996;

counts 7 and 8 charged him with importation of marijuana and

possession of marijuana with intent to distribute on or about

October 29, 1996; and counts 9 and 10 charged him with

importation of marijuana and possession of marijuana with intent

to distribute on or about November 26, 1996. The government

concedes that the offenses charged in counts 9 and 10 were based

upon the same conduct that formed the basis of counts 1 and 2 of

the original indictment. Alford’s trial commenced on April 28,

1997. On the same date, Alford filed a motion to dismiss the

superseding indictment on the ground that trying him on the

indictment would violate the Speedy Trial Act, 18 U.S.C. §§ 3161-

74, and the Speedy Trial Plan for the Western District of Texas.

The district court denied the motion. The jury convicted Alford

on counts 3 through 10 of the indictment and acquitted him on

2
counts 1 and 2. Alford concedes that sufficient evidence exists

to support the convictions.

Alford’s presentence investigation report (PSR) determined

Alford’s offense level to be 40 and his criminal history category

to be III, which subjected him to a Sentencing Guidelines range

of 360 months to life imprisonment. See UNITED STATES SENTENCING

GUIDELINES MANUAL ch. 5, pt. A (Sentencing Tbl.) (1995). The PSR

calculated Alford’s base offense level as 34, based upon a

determination that 3108 kilograms of marijuana were attributable

to Alford in relation to the offenses of conviction. See id. §

2D1.1. The PSR recommended a two-level upward adjustment for

possession of a dangerous weapon, see id. § 2D1.1(b)(1), and a

four-level upward adjustment based on Alford’s role as an

organizer or leader of criminal activity involving five or more

participants or that was otherwise extensive, see id. § 3B1.1(a).

The PSR also noted that the district court might consider an

upward departure pursuant to § 4A1.3 of the Guidelines if it

found that Alford’s criminal history category of III did not

adequately reflect the seriousness of Alford’s criminal past or

his propensity for committing future crimes.

Alford objected to the PSR’s calculation of his base offense

level on the ground that insufficient evidence supported the

amount of marijuana that the PSR attributed to him. He also

objected to the PSR’s recommendation of an increase in his

offense level for possession of a dangerous weapon. The district

3
court sustained Alford’s objection to the increase for possession

of a dangerous weapon but overruled his objection regarding the

amount of marijuana attributable to him. The court then

concluded that an upward departure was warranted on the following

grounds:

[I]n studying this presentence report, it occurs to me
that the criminal history category in this matter
doesn’t really show up the seriousness of this
particular crime. It’s a criminal history category of
III, and my problem with that is it doesn’t adequately
show the convictions that Mr. Billy Mel Alford had for
sale and delivery of marijuana in the 204th District
Court of Dallas County in 1977, in the cause numbers
that are set forth, 7701, 526, 527 and 528. When you
put these marijuana convictions which were excluded
because they were pretty far back, really they went
back of his previous conviction that Mr. Alford
suffered in my Court. So based on his previous history
of convictions in ‘77, based on his convictions here in
the District Court of the Western District, Pecos
Division, all for marijuana, I find that Mr. Alford was
at least 18 years old, that the instant offense is a
felony that deals with a controlled substance. I
further find that Mr. Alford has at least two prior
felony convictions of either a crime of violence or a
controlled substance. And in this instance, it would
be a controlled substance. I find that the criminal
history category of III doesn’t adequately represent
Mr. Alford’s career offenses, and so I am going to
sentence him under, given the two-point reduction for
the gun, under an offense level of 38 and a criminal
history category of VI, because I believe, having Mr.
Alford before, watched him operate, seen his modus
operandi, that he is indeed a career offender.

Alford did not object to the district court’s decision to

increase his criminal history category. The Guidelines

imprisonment range for an offense level of 38 and a criminal

history category of VI is 360 months to life. See id. ch. 5, pt.

A (Sentencing Tbl.). The district court imposed concurrent

4
sentences of 480 months’ imprisonment on each count of conviction

to be followed by a five-year period of supervised release. The

district court also imposed a $200,000 fine ($25,000 per count of

conviction) and an $800 special assessment ($100 per count of

conviction). Alford filed a timely notice of appeal.

II. DISCUSSION

On appeal, Alford challenges his judgment of conviction and

sentence on the following three grounds:

1. the district court erred in denying his motion to

dismiss the superseding indictment based upon his

statutory right to a speedy trial;

2. the district court abused its discretion in

increasing his criminal history category to VI;

and

3. the district court erred in concluding that more

than 3000 kilograms of marijuana were attributable

to him.

We address each of these issues in turn.

A. The Speedy Trial Act

The Speedy Trial Act generally requires that the trial of a

criminal defendant “commence within seventy days from the filing

date (and making public) of the information or indictment, or

from the date the defendant has appeared before a judicial

officer of the court in which such charge is pending, whichever

5
date last occurs.” 18 U.S.C. § 3161(c)(1); see also United

States v. Bermea, 30 F.3d 1539, 1566 (5th Cir. 1994). However,

the Act tolls the seventy-day clock for certain statutorily

enumerated periods of delay. See 18 U.S.C. § 3161(h); Bermea, 30

F.3d at 1566.

Alford contends that the district court’s denial of his

motion to dismiss the superseding indictment violated his

statutory right to a speedy trial because his trial commenced

approximately eighty-four days after his arraignment on the

initial indictment.1 He contends, and the government concedes,

that none of this time was excludable under the tolling

provisions contained in § 3161(h). Alford therefore argues that

the district court was required to dismiss the superseding

indictment. See 18 U.S.C. § 3162(a)(2) (“If a defendant is not

brought to trial within the time limit required by section

3161(c) as extended by section 3161(h), the information or

indictment shall be dismissed on motion of the defendant.”).

By conceding that more than seventy non-excludable days

transpired between Alford’s arraignment and the commencement of

his trial, the government essentially concedes that a Speedy

Trial Act violation occurred with respect to counts 9 and 10 of

1
Both parties agree that Alford’s arraignment constituted
his first appearance before a judicial officer of the court where
the indictment was pending.

6
the superseding indictment. In United States v. Gonzales, 897

F.2d 1312, 1316 (5th Cir. 1990), we held that

[t]he filing of a superseding indictment does not
affect the speedy-trial clock for offenses charged in
the original indictment or any offense required under
double jeopardy principles to be joined with the
original offenses. The seventy-day speedy-trial period
continues to run from the date of the original
indictment or arraignment, whichever was later, and all
speedy-trial exclusions apply as if no superseding
indictment had been returned. This rule prevents the
government from circumventing the speedy-trial
guarantee by restarting the speedy-trial clock by
obtaining superseding indictments with minor
corrections.

Id. at 1316 (citations omitted). Thus, because Alford’s trial

did not commence within seventy days after Alford’s first

appearance before a judicial officer of the court where the

original indictment was pending, counts 9 and 10 of the

superseding indictment, which were offenses charged in the

original indictment, were subject to dismissal.

However, counts 1 through 8 of the superseding indictment

were not charged in the original indictment, and Alford has not

attempted to--nor can he--establish that double jeopardy concerns

required the government to try the offenses alleged in counts 1

through 8 along with counts 9 and 10. See United States v.

Register, 931 F.2d 308, 312-13 (5th Cir. 1991) (holding that a

defendant charged with two counts of possession of cocaine with

intent to distribute occurring on separate dates could not

establish that prosecution on both counts constituted double

jeopardy without proving that the cocaine forming the basis of

7
each count came from the same “stash”); United States v. Marable,

578 F.2d 151, 153 (5th Cir. 1978) (“To support a claim of double

jeopardy, a defendant must show that the two offenses charged are

in law and fact the same offense.”). This case therefore forces

us to confront a question that we expressly left open in

Gonzales: “whether a new speedy-trial clock begins for new

offenses charged in the superseding indictment [that the double

jeopardy clause would not require the government to join with the

original charges], when the indictment retains some of the

original charges.” Gonzales, 897 F.2d at 1316. We answer this

question in the affirmative and join two other circuits that have

done the same. See United States v. Kelly, 45 F.3d 45, 48 (2d

Cir. 1995); United States v. Lattany, 982 F.2d 866, 872 n.7 (3d

Cir. 1992).

It is clear that, as to charges that the government is not

required to join with the offenses charged in the original

indictment, the government may obtain a fresh speedy trial clock

by simply waiting until completion of the prosecution for the

charges contained in the original indictment and beginning a new

prosecution on the additional charges. We see no logical basis

for concluding that, when the government chooses to add in a

superseding indictment charges that it is not required to join

with the charges contained in the original indictment, it must

bring the defendant to trial on the added charges within the time

period remaining on the speedy trial clock applicable to the

8
charges contained in the original indictment. Under the

construction of the Speedy Trial Act that we adopt, the defendant

is guaranteed that his trial on a particular charge is brought

within seventy non-excludable days of the later of his indictment

on the charge or his first appearance before an officer of the

court where the charge is pending. Where, as here, the defendant

is not brought to trial on the superseding indictment within

seventy non-excludable days of the later of the defendant’s first

appearance or the filing of the original indictment, the counts

in the superseding indictment that were contained in the original

indictment (or those that the double jeopardy clause requires to

be joined with them) are subject to dismissal.

Well under seventy days transpired between the filing of the

superseding indictment and Alford’s trial. We therefore conclude

that, as to counts 1 through 8 of the superseding indictment, no

Speedy Trial Act violation occurred. However, Alford’s trial on

counts 9 and 10 violated the Act. Accordingly, we vacate the

district court’s judgment of conviction and sentence on counts 9

and 10 and remand for dismissal of these counts of the

indictment.

A dismissal for violation of the Speedy Trial Act may be

with or without prejudice, see 18 U.S.C. § 1362(a)(2), and the

Act prefers neither remedy over the other, see United States v.

Johnson, 29 F.3d 940, 945 (5th Cir. 1994). While we may in some

circumstances make the determination of the appropriate type of

9
dismissal ourselves, see id., as a general rule, “the trial court

is best situated to decide whether to dismiss indictments with or

without prejudice in light of a Speedy Trial Act violation.”

United States v. Blackwell, 12 F.3d 44, 48 (5th Cir. 1994)

(emphasis omitted); see also United States v. Willis, 958 F.2d

60, 64 (5th Cir. 1992) (“The district court is best situated to

decide whether to dismiss with prejudice. We reverse the

convictions for violation of the Speedy Trial Act but leave to

the district court the nature of that dismissal.”); United States

v. Melguizo, 824 F.2d 370, 371 (5th Cir. 1987) (“[T]he decision

whether to dismiss a complaint under the Speedy Trial Act with or

without prejudice is entrusted to the sound discretion of the

district judge . . . .” (internal quotation marks omitted)). We

therefore remand to the district court so that it may determine

whether the dismissal of counts 9 and 10 of the superseding

indictment should be with or without prejudice. The Speedy Trial

Act provides that, in making this determination,

the court shall consider, among others, each of the
following factors: the seriousness of the offense; the
facts and circumstances of the case which led to the
dismissal; and the impact of a reprosecution on the
administration of this chapter and on the
administration of justice.

18 U.S.C. § 3162(a)(2).

B. Increase in Criminal History Category

Alford next argues that the district court erred in

increasing his criminal history category from III to VI. He

10
contends that the court’s reasons for the departure do not comply

with the requirements for upward departures in this Circuit.

Specifically, he argues that the district court did not explain

why intermediate criminal history categories were not appropriate

as required by United States v. Lambert, 984 F.2d 658 (5th Cir.

1993) (en banc), and that his sentence should therefore be

vacated and the case remanded for resentencing.

We generally review a district court’s decision to depart

from the Guidelines for an abuse of discretion. See United

States v. McKenzie, 991 F.2d 203, 204 (5th Cir. 1993). However,

Alford did not object to the upward departure in the district

court. “Under Federal Rule of Criminal Procedure 52(b), this

court may correct forfeited errors only when the appellant shows

that (1) there is an error, (2) the error is plain, and (3) the

error affects her substantial rights.” United States v.

Ravitch, 128 F.3d 865, 869 (5th Cir. 1997) (citing United States

v. Olano, 507 U.S. 725, 732-35 (1993)). Even if the appellant

satisfies these factors, “the decision to correct the forfeited

error falls within this court’s sound discretion,” and we will

not exercise that discretion to correct a forfeited error “unless

the error seriously affects the fairness, integrity, or public

reputation of judicial proceedings.” Id. Applying the plain

error standard, we have held that, in circumstances in which the

trial court could reinstate the same sentence were the case

remanded, the defendant’s sentence is sustainable even though

11
“the district court’s stated reasons for departing evidence a

mistaken application of the Sentencing Guidelines.” Id.; see

also United States v. Brunson, 915 F.2d 942, 944 (5th Cir.

1990). Put another way, under the plain error standard of

review, “we will uphold a defendant’s sentence if on remand the

district court could reinstate the same sentence by relying on a

reasonable application of the Sentencing Guidelines.” Ravitch,

128 F.3d at 871.

The district court may depart from the otherwise applicable

Guidelines range if reliable information indicates that the

defendant’s criminal history category does not adequately reflect

the seriousness of the defendant’s past criminal conduct or the

likelihood that the defendant will commit other crimes. See U.S.

SENTENCING GUIDELINES MANUAL § 4A1.3. When departing on the basis of

§ 4A1.3, “the district court should consider each intermediate

criminal history category before arriving at the sentence it

settles upon; indeed, the court should state for the record that

it has considered each intermediate adjustment.” Lambert, 984

F.2d at 662. Id. However, this court does not

require the district court to go through a ritualistic
exercise in which it mechanically discusses each
criminal history category it rejects en route to the
category that it selects. Ordinarily the district
court’s reasons for rejecting intermediate categories
will clearly be implicit, if not explicit, in the
court’s explanation for its departure from the category
calculated under the guidelines and its explanation for
the category it has chosen as appropriate.

Id. at 663.

12
 Alford’s criminal history points placed him in criminal

history category III. See U.S. SENTENCING GUIDELINES MANUAL ch. 5,

pt. A (Sentencing Tbl.). Three of Alford’s criminal history

points resulted from a prior conviction of ten counts of

possession of marijuana with intent to distribute and one count

of conspiracy to possess marijuana with intent to distribute.

Additionally, he had six criminal convictions, three of which

were drug convictions, that were not considered in the criminal

history computation because of their age. See id. § 4A1.2(e).

The district court could reasonably conclude that a criminal

history category of III did not adequately reflect the

seriousness of Alford’s criminal history or his propensity for

recidivism. See id. § 4A1.2 Application Note 8 (“If the court

finds that a sentence imposed outside th[e] time period [imposed

by § 4A1.2(e)] is evidence of similar, or serious dissimilar,

criminal conduct, the court may consider this information in

determining whether an upward departure is warranted under

§ 4A1.3 . . . .”). Further, it was not unreasonable for the

district court to conclude that an increase of more than one in

Alford’s criminal history category was warranted. Assuming

merely for the sake of argument that the district court’s

statement of the reasons for its departure was inadequate under

Lambert (i.e., assuming that the reasons that the district court

chose a criminal history category of VI as opposed to an

intermediate category were not implicit in its stated reasons for

13
the departure), were we to remand the case, the district court

could properly impose the same sentence by stating on the record

that it had considered the intermediate criminal history category

of IV and determined that a category of V was appropriate.2 We

therefore conclude that the district court’s upward departure did

not constitute plain error warranting a vacation of Alford’s

sentence and resentencing on counts 3 through 8.

C. Amount of Marijuana Attributed to Alford

Alford finally contends that the district court erred in

concluding that more than 3000 kilograms of marijuana were

attributable to him for sentencing purposes. The district

court’s calculation of the quantity of drugs involved in an

offense is a factual determination. See United States v. Ponce,

917 F.2d 841, 842 (5th Cir. 1990); United States v. Rivera, 898

F.2d 442, 445 (5th Cir. 1990). “Factual findings regarding

sentencing factors are entitled to considerable deference and

will be reversed only if they are clearly erroneous.” United

States v. Watson, 966 F.2d 161, 162 (5th Cir. 1992). “A factual

finding is not clearly erroneous as long as it is plausible in

light of the record as a whole.” United States v. Sanders, 942

F.2d 894, 897 (5th Cir. 1991).

2
The district court could impose the same sentence were it
to raise Alford’s criminal history category only to V because the
same Guidelines range--360 months to life--applies to an offense
level of 38 with a criminal history category of V or VI. See
U.S. SENTENCING GUIDELINES MANUAL ch. 5, pt. A.

14
 “[A] presentence report generally bears sufficient indicia

of reliability to be considered as evidence by the trial judge in

making the factual determinations required by the sentencing

guidelines.” Id. at 898. A district court may adopt facts

contained in the PSR without further inquiry if the facts have an

adequate evidentiary basis and the defendant does not present

rebuttal evidence. See United States v. Puig-Infante, 19 F.3d

929, 943 (5th Cir. 1994). “The defendant bears the burden of

showing that the information in the PSR relied on by the district

court is materially untrue.” United States v. Valencia, 44 F.3d

269, 274 (5th Cir. 1995); see also United States v. Ruiz, 43 F.3d

985, 989 (5th Cir. 1995); Puig-Infante, 19 F.3d at 943.

In this case, the district court accepted the PSR’s

conclusion that 3108 kilograms of marijuana were attributable to

Alford in relation to the charged offenses. Alford challenges

the reliability of the PSR’s calculation, arguing that it was

based in part on the testimony of Paul Preston, Alford’s

coconspirator, who stated on cross-examination that the unseized

quantities of marijuana that he testified were involved in some

of the charged offenses were guesses and that the actual

quantities could have been smaller. Alford argues that, because

Preston characterized the amounts to which he testified as

guesses and acknowledged that the actual quantities could have

been smaller, the district court should have erred on the side of

assuming smaller quantities for sentencing purposes.

15
 We conclude that the district court did not clearly err in

calculating the amount of marijuana attributable to Alford. The

fact that Preston’s testimony was somewhat imprecise did not

preclude reliance on it for sentencing purposes because a

district court may consider “estimates of the quantity of drugs

for sentencing purposes.” United States v. Sherrod, 964 F.2d

1501, 1508 (5th Cir. 1992). Preston’s testimony that the amounts

involved could have been smaller than the amounts that he stated

on direct examination is merely an acknowledgment that the

amounts to which he testified were estimates rather than exact

figures. Moreover, Alford presented no rebuttal evidence

establishing that the information in the PSR regarding the amount

of marijuana attributable to him was materially untrue. As such,

the district court’s determination that 3108 kilograms of

marijuana were attributable to Alford was not implausible on this

record and therefore not clearly erroneous.

III. CONCLUSION

For the foregoing reasons, we VACATE the district court’s

judgment of conviction and sentence on counts 9 and 10 of the

superseding indictment and REMAND for dismissal of those two

counts and a determination of whether the dismissal should be

with or without prejudice. We AFFIRM the district court’s

judgment of conviction and sentence in all other respects.

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