United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 96-3166
___________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Missouri.
Mark A. Geralds, *
* [UNPUBLISHED]
Appellant. *
___________
Submitted: June 24, 1997
Filed: July 17, 1997
___________
Before BOWMAN, WOLLMAN, and BEAM, Circuit Judges.
___________
PER CURIAM.
Mark A. Geralds challenges his conviction and the
360-month sentence imposed by the District Court after he
entered a conditional guilty plea to attempting to
possess powder cocaine with intent to distribute, in
violation of 21 U.S.C. §§ 841(a)(1), 846 (1994). We
affirm Geralds’s conviction, but remand for resentencing.
First, Geralds argues that his right to a speedy
trial was violated. The record reveals the following
relevant procedural history. On September 8, 1996, a
hearing on miscellaneous pre-trial motions was held
before a magistrate judge; on the same date,
-2-
Geralds moved to dismiss for a violation of the Speedy
Trial Act (the “Act”), 18 U.S.C. §§ 3161-3174 (1994). On
October 4, with leave of court, the government responded
to Geralds’s motion to dismiss. On October 12, the
magistrate judge issued an order disposing of the pre-
trial motions and a separate report recommending that the
motion to dismiss be denied. Geralds objected to the
report on October 20, and the District Court adopted the
magistrate judge’s report on October 26. On December 27,
Geralds filed another motion to dismiss based on the Act,
which the District Court denied, and he entered a
conditional guilty plea, preserving his right to appeal
the speedy-trial issue.
Under the Act, a federal criminal defendant must be
brought to trial within seventy days from the filing of
the indictment or from arraignment, whichever is later,
subject to a number of exclusions. See 18 U.S.C. §
3161(c)(1), (h) (1994). Geralds contends that seventy-
four non-excludable days had elapsed when he pleaded
guilty, based on his belief that the period between
October 9 and October 20, 1996 was not excludable.
Although the magistrate judge took longer than thirty
days to rule on the pre-trial motions, we conclude that
the period up to and including October 12 was excludable,
because Geralds’s motion to dismiss was not taken under
advisement until the government filed its response brief
on October 4, and the magistrate judge ruled on this
motion well within the thirty-day advisement period. See
18 U.S.C. § 3161(h)(1)(F),( J) (1994) (excluding “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,” and “delay
-3-
reasonably attributable to any period, not to exceed
thirty days, during which any proceeding concerning the
defendant is actually under advisement by the court”);
United States v. Long, 900 F.2d 1270, 1274-75 (8th Cir.
1990) (recognizing that matter is not taken under
advisement until court has all materials needed to rule).
The period between the magistrate judge’s report and
Geralds’s filing of his objections to that report also
was excludable. See Long, 900 F.2d at 1275.
Accordingly, the entire period between October 9 and
October 20 was excludable.
-4-
Second, Geralds argues for the first time on appeal
that the District Court erred when it accepted his guilty
plea prior to the preparation of a presentence report.
Geralds relies on U.S. Sentencing Guidelines Manual §
6B1.1(c) (1995) (policy statement) (stating that district
court shall defer decision to accept or reject plea
agreement until after presentence report is reviewed),
but his reliance incorrectly equates acceptance of his
guilty plea with acceptance of his plea agreement. See
United States v. Hyde, 117 S. Ct. 1630, 1632-33 (1997).
Moreover, the fact that the sentence recommended in his
PSR substantially exceeded his expectations due to the
inclusion of more than 500 grams of crack cocaine as
relevant conduct is not a fair and just reason for
withdrawing a guilty plea. See United States v. Ludwig,
972 F.2d 948, 949-51 (8th Cir. 1992).
Finally, Geralds challenges the District Court’s
relevant-conduct findings. We agree with Geralds that
these findings were flawed. After one judge heard
sharply conflicting sentencing testimony regarding drug
quantity and relevant conduct, the case was transferred
to a second judge; the second judge did not conduct a new
sentencing hearing, but rather made credibility
determinations based only on a review of the sentencing
transcript. As a result of these credibility
determinations, the second judge overruled Geralds’s
objections to the presentence report and sentenced him to
360 months in prison. We believe that the conflicting
testimony presented credibility issues serious enough to
warrant sentencing by a judge who had had the opportunity
to observe the character and demeanor of the witnesses,
and that the second judge was in no better position to
-5-
make credibility determinations than we would be. Cf.
United States v. Ballew, 40 F.3d 936, 942 (8th Cir. 1994)
(recognizing that credibility of witnesses is for trier
of fact to determine), cert. denied, 514 U.S. 1091
(1995); United States v. Noland, 960 F.2d 1384, 1390-91
(8th Cir. 1992) (noting that district court’s factual
findings are to be accepted as true unless clearly
erroneous with due regard being given to opportunity of
court to judge credibility of witnesses; holding that
record supported findings of trial judge, who had
opportunity to observe character and demeanor of
witnesses). We do not say that the second judge's
credibility
-6-
determinations were wrong. Rather, we say only that they
were not reached in a manner that enables us confidently
to apply the clear error standard of review to them.
Thus, we remand for resentencing before either the first
judge, who already has heard the testimony regarding drug
quantity and relevant conduct, or the second judge (or
any other judge) who has the opportunity to hear the
testimony of the witnesses. In light of this decision,
we do not consider the merits of the relevant-conduct
findings or of Geralds’s argument concerning the burden
of proof the second judge applied in reaching these
findings.
Accordingly, we affirm Geralds’s conviction, but
remand for resentencing in a manner consistent with this
opinion.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH
CIRCUIT.
-7-