UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-5132
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RAY BLANKS,
Defendant - Appellant.
No. 10-4051
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DANNY JONES,
Defendant - Appellant.
Appeals from the United States District Court for the District
of Maryland, at Baltimore. Richard D. Bennett, District Judge.
(1:08-cr-00565-RDB-1; 1:08-cr-00565-RDB-3)
Submitted: June 30, 2011 Decided: July 21, 2011
Before MOTZ and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Ray M. Shepard, DUANE MORRIS LLP, Baltimore, Maryland; Gerald
Chester Ruter, Towson, Maryland, for Appellants. Rod J.
Rosenstein, United States Attorney, Peter M. Nothstein, A. David
Copperthite, Assistant United States Attorneys, Baltimore,
Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
A jury convicted Ray Blanks and Danny Jones of
conspiracy to interfere with commerce by robbery and extortion,
in violation of 18 U.S.C. § 1951 (2006) (counts one and two);
conspiracy to possess firearms in furtherance of a crime of
violence, in violation of 18 U.S.C. § 924(o) (2006) (count
three); and possession of firearms in furtherance of a crime of
violence, in violation of 18 U.S.C. § 924(c) (2006) (count
four). Blanks was also charged with possession of firearms by a
convicted felon, in violation of 18 U.S.C. § 922(g) (2006)
(count five). Both Blanks and Jones received a 240-month
sentence. On appeal, Blanks and Jones raise two issues: whether
their rights under the Speedy Trial Act were violated and
whether the district court erred in treating the brandishing of
a firearm as a sentencing factor rather than as an element of
the offense. Blanks separately challenges the reasonableness of
his sentence. Finding no error, we affirm.
I.
This court reviews de novo a district court‟s
interpretation of the Speedy Trial Act of 1974, while it reviews
any related factual findings for clear error. United States v.
Stoudenmire, 74 F.3d 60, 63 (4th Cir. 1996). The relevant
provision of the Speedy Trial Act provides that in “any case in
3
which a plea of not guilty is entered, the trial of a
defendant . . . shall commence within seventy days” from the
later of (1) the filing date of the information or indictment or
(2) the defendant‟s initial appearance before a judicial
officer. 18 U.S.C. § 3161(c)(1) (2006). Generally, if a
defendant is not brought to trial within seventy days, the court
must dismiss the indictment on the defendant‟s motion. 18
U.S.C. § 3162(a)(2) (2006). “The requirement of dismissal,
however, is not absolute.” United States v. Wright, 990 F.2d
147, 148 (4th Cir. 1993). Certain delays are excludable when
computing the time within which a defendant‟s trial must
commence. 18 U.S.C. § 3161(h)(1)-(9) (2006); Wright, 990 F.2d
at 148. One of the delays excluded from the “Speedy Trial
clock” is any “delay resulting from any pretrial motion, from
the filing of the motion through the conclusion of the hearing
on, or other prompt disposition of, such motion.” 18 U.S.C.
§ 3161(h)(1)(D). “The plain terms of the statute . . . exclude
all time between the filing of and the hearing on a motion
whether that hearing on a motion was prompt or not.” Henderson
v. United States, 476 U.S. 321, 326 (1986). This court has held
that, in a multi-defendant case, a time period excluded for one
defendant is excludable for all defendants in the same action.
United States v. Jarrell, 147 F.3d 315, 316 (4th Cir. 1998);
United States v. Sarno, 24 F.3d 618, 622 (4th Cir. 1994).
4
In this case, Blanks and Jones were indicted on
December 9, 2008; the final defendant appeared on the indictment
on December 30, 2008. The seventy-day speedy trial period began
on December 30, 2008, requiring the defendants to be brought to
trial on or before March 10, 2009. 18 U.S.C. § 3161(c)(1).
Although trial was initially scheduled for March 9, Blanks‟
attorney sent a letter to the district court on January 6, 2009,
indicating he was unavailable for trial that day. The district
court treated the letter as a request for a continuance and,
after a conference call with counsel, set a new trial date of
June 29, 2009. Trial ultimately commenced on July 6, 2009.
In the interim, on February 23, 2009, the Government
filed a motion for an order requiring the defendants to provide
palm prints. That motion was not decided until March 26, 2009.
On March 16, 2009, a third co-defendant filed two motions to
suppress, and Blanks filed a motion for return of personal
property. On March 30, 2009, Blanks joined in the previously
filed motions to suppress and filed an additional motion to
suppress statements by his co-defendants. These motions were
not decided until June 23, 2009. The total number of excludable
days, according to the Government, was 120, and after excluding
these 120 days from the 188-day period, Blanks and Jones were
tried within sixty-eight days of the final initial appearance.
5
Blanks and Jones posit two arguments in their
assertion that their speedy trial rights were violated. First,
relying on a Sixth Circuit decision, United States v.
Tinklenberg, 579 F.3d 589 (6th Cir. 2009), they contend that, in
order for the time pretrial motions remain pending to be
considered excludable, the court must find that actual delay
resulted from the motion. Next, they maintain that defense
counsel‟s motion for a continuance and the court‟s subsequent
granting of the motion were insufficient to toll the “Speedy
Trial clock” because the district court did not make the
appropriate findings under 18 U.S.C. § 3161(h)(7)(A) (2006).
The Government responds that, under Fourth Circuit
jurisprudence, “the filing of a pretrial motion creates
excludable time whether or not it can be shown that proceedings
relating to such a motion in fact delayed the trial.” United
States v. Dorlouis, 107 F.3d 248, 253 (4th Cir. 1997). Because
the pretrial motions filed resulted in 120 days of excludable
time bringing the time between the commencement of the Speedy
Trial time and the defendants‟ trial to only sixty-eight days,
the Government argues, the court need not reach the second
issue.
The Supreme Court granted certiorari in United
States v. Tinklenberg and recently held that the filing of a
pretrial motion falls within the scope of § 3161(h)(1)(D)
6
irrespective of whether it actually causes, or is expected to
cause, delay in starting a trial. United States v. Tinklenberg,
131 S. Ct. 2007, 2010-11 (2011). In light of this decision, we
conclude there was no Speedy Trial Act violation in this case.
The pretrial motions filed in this case resulted in 121 days of
excludable time, see Wright, 990 F.2d at 149 (excluding both
dates on which an event occurs or a motion is filed and date on
which the court disposes of the motion), bringing the time
between commencement of the Speedy Trial time and the trial to
sixty-seven days. Accordingly, we need not address Blanks‟ and
Jones‟ assertion that the delay attributable to defense
counsel‟s request for a continuance cannot be excluded for
purposes of the Speedy Trial Act.
II.
Jones and Blanks also contend the district court
impermissibly enhanced their sentences for brandishing firearms
with respect to their respective § 924(c) convictions (count
four). Specifically, they argue the district court improperly
treated the “brandishing” of a firearm, which triggers a two-
year higher mandatory minimum, as a sentencing factor instead of
as an element of the offense.
The district court did not submit to the jury the
question of whether a firearm was brandished in furtherance of a
7
crime of violence. Rather, the court made such a finding at
sentencing, increasing the mandatory minimum sentence on count
four from five to seven years‟ imprisonment. 18 U.S.C.
§ 924(c)(1)(A)(ii) (2006) (“[I]f the firearm is brandished, [the
defendant will] be sentenced to a term of imprisonment of not
less than 7 years.”).
Jones and Blanks argue that the brandishing provision
is an element of the offense which must be alleged in the
indictment and proved to the jury. This argument is foreclosed
by the Supreme Court‟s decision in Harris v. United States, 536
U.S. 545 (2002), in which the Court concluded that a district
court‟s application of the seven-year mandatory minimum sentence
under § 924(c)(1)(A)(ii) based on judicial fact finding did not
result in a sentence above the otherwise-applicable statutory
maximum and was not error. See id. at 568 (holding, post-
Apprendi, that “[b]asing a 2-year increase in the defendant‟s
minimum sentence on a judicial finding of brandishing does not
evade the requirements of the Fifth and Sixth Amendments”).
Blanks and Jones argue, however, that the Supreme Court‟s more
recent decision in United States v. O‟Brien, 130 S. Ct. 2169
(2010), undermines Harris. In O‟Brien, the provision at issue
increased the penalty if the gun used by the defendant was
characterized as a machinegun. See 18 U.S.C. § 924(c)(1)(B)(ii)
(“[I]f the firearm possessed by a person convicted of a
8
violation of this subsection . . . (ii) is a machinegun . . .
the person shall be sentenced to a term of imprisonment of not
less than 30 years.”). The O‟Brien Court determined that this
provision was an element of the offense that must be found by a
jury beyond a reasonable doubt. O‟Brien, 130 S. Ct. at 2180.
However, the Supreme Court in O‟Brien specifically
distinguished the seven-to-thirty-year increase from the five-
to-seven-year increase in Harris, noting that the increase under
§ 924(c)(1)(B)(ii) if the gun used was a machinegun was “not
akin to the „incremental changes in the minimum‟ that one would
„expect to see in provisions meant to identify matters for the
sentencing judge‟s consideration.‟” O‟Brien, 130 S. Ct. at 2177
(quoting Harris, 536 U.S. at 554). Accordingly, we conclude
this claim is without merit.
III.
Blanks also argues on appeal that his sentence is
procedurally and substantively unreasonable. Specifically, he
claims the district court failed to make an individualized
assessment based solely on the facts presented and provided an
inadequate explanation for the significant upward variance from
the recommended Guidelines range.
This court reviews a sentence for reasonableness,
applying an abuse of discretion standard. Gall v. United
9
States, 552 U.S. 38, 51 (2007). In evaluating reasonableness,
the court must first determine whether the district court
committed any significant procedural errors in sentencing
Blanks. Id.; see United States v. Wilkinson, 590 F.3d 259, 269
(4th Cir. 2010). This assessment includes determining whether
the district court properly calculated Blanks‟ advisory
Guidelines range, whether it considered the factors enumerated
in 18 U.S.C. § 3553(a) (2006) and any arguments presented by the
parties, whether it based the sentence on an “individualized
assessment,” and whether it sufficiently explained the sentence.
Gall, 552 U.S. at 50-51; United States v. Carter, 564 F.3d 325,
328 (4th Cir. 2009). Because Blanks requested a sentence within
the Guidelines range, his claim of procedural error was properly
preserved. This court will reverse if an abuse of discretion is
found, unless the court can conclude that the error was
harmless. United States v. Lynn, 592 F.3d 572, 576, 578 (4th
Cir. 2010).
If the court finds no significant procedural error, it
next assesses the substantive reasonableness of the sentence.
Wilkinson, 590 F.3d at 269. When reviewing substantive
reasonableness, the court “may consider the extent of the
deviation [from the recommended Guidelines range], but must give
due deference to the district court‟s decision that the
10
§ 3553(a) factors, on a whole, justify the extent of the
variance.” Gall, 552 U.S. at 51.
Blanks concedes that the district court properly
calculated a Guidelines range of 184 to 209 months. In
considering the § 3553(a) factors, the court (1) observed this
was an egregious and violent crime, noting specifically that it
was a home invasion and Blanks awakened a victim by tapping a
handgun on the victim‟s chest; (2) found a “pattern” of criminal
conduct indicative of a person “who has gamed the system for a
long period of time;” and (3) stated that, given the
“extraordinary level of violence in this case,” “the public
deserved and needs protection from the acts of Blanks.” The
court accordingly sentenced Blanks above the Guidelines range to
240 months‟ imprisonment. We have reviewed the sentencing
transcript and conclude the district court rendered an
individualized assessment in this case, it adequately explained
the upward variance, and the sentence is substantively
reasonable.
Accordingly, we affirm Blanks‟ and Jones‟ convictions
and sentences. We dispense with oral argument because the facts
and legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional
process.
AFFIRMED
11