United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 20, 2004
Charles R. Fulbruge III
Clerk
No. 03-11206
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LINDY RAY MATTHEWS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:02-CR-5-1-Y
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Before GARZA, DeMOSS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Lindy Ray Matthews appeals his conviction of mail fraud, a
violation of 18 U.S.C. § 1341, and his 60-month prison sentence.
Matthews contends that the district court erred in denying
his pro se March 27, 2002, motion to dismiss based on pre-
indictment delay. Although nearly five years passed between the
alleged commission of the offense and Matthews’s May 2000
indictment, Matthews has failed to establish that the delay was
intentionally brought about by the Government “‘for the purpose
*
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this opinion should not be published and is not precedent except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.
No. 03-11206
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of gaining some tactical advantage over the accused . . . or some
other bad faith purpose’” or that the delay “‘caused actual,
substantial prejudice to his defense.’” See United States v.
Avants, 367 F.3d 433, 441 (5th Cir. 2004) (quoting United States
v. Couch, 84 F.3d 1497, 1523 (5th Cir. 1996) (en banc)). His
references to unavailable witnesses and misplaced documents are
vague and speculative. See Couch, 84 F.3d at 1515. Matthews has
not established that the denial of the motion to dismiss was
based on clear error. United States v. Jimenez, 256 F.3d 330,
334 (5th Cir. 2001).
Matthews argues that the district court erred in denying his
pro se motion to dismiss under the Speedy Trial Act (“STA”), 18
U.S.C. § 3161 et seq. The 70-day STA period was triggered when
Matthews was permitted to withdraw his guilty plea on May 22,
2001. See 18 U.S.C. § 3161(c)(1), (i). The district court
correctly concluded that the period stopped running after 29
days, on June 21, 2001, when Matthews moved for the substitution
of counsel, and that the subsequent continuance until September
17, 2001, was excluded under the STA, based on the necessity of
Matthews’s new attorney to prepare for trial. See 18 U.S.C.
§ 3161(h)(8)(A). That the district court set forth no
contemporaneous reasons for this continuance was not fatal to the
exclusion of this time, because the court subsequently offered
reasons for the continuance when it denied Matthews’s motion to
dismiss. See United States v. Bieganowski, 313 F.3d 264, 283
No. 03-11206
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(5th Cir. 2002), cert. denied, 538 U.S. 1014 (2003). As Matthews
has not challenged the exclusion of any delays after October 29,
2001, he has not shown that the district court clearly erred in
denying his motion to dismiss. United States v. De La Pena-
Juarez, 214 F.3d 594, 597 (5th Cir. 2000).
Matthews contends that, under the Sentencing Guidelines, the
district court erred in attributing three criminal-history points
each to four prior convictions to which he entered pleas and for
which he was sentenced on the same date to concurrent prison
terms. He argues that these four convictions, along with three
others, should have been deemed “related” for purposes of
U.S.S.G. § 4A1.2(a)(2) and should have been assigned a combined
total of only three points. Matthews fails to acknowledge that
the district court alternatively ruled that, even if Matthews’s
challenge to the counting of criminal-history points was
technically correct, his criminal-history score significantly
underrepresented his criminal past and that an upward departure
was appropriate. Accordingly, any challenge to this alternative
ruling is waived. See United States v. Fagan, 821 F.2d 1002,
1015 n.9 (5th Cir. 1987) (arguments not briefed are deemed
waived); United States v. McSween, 53 F.3d 684, 687 n.3 (5th Cir.
1995) (court may affirm on any ground supported by record);
see also Brinkmann v. Dallas County Deputy Sheriff Abner, 813
F.2d 744, 748 (5th Cir. 1987). In any event, Matthews has failed
to establish that the district court erred in deeming the four
No. 03-11206
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prior convictions unrelated under U.S.S.G. § 4A1.2(a)(2). See
United States v. Robinson, 187 F.3d 516, 519 (5th Cir. 1999).
After briefing was complete, attorney Steven Rozan filed a
motion to withdraw as Matthews’s counsel and to stay the
proceedings to permit Matthews to find a new attorney. Matthews
has filed two pro se “Omnibus Motions” in which he urges this
court either to substitute new counsel for Rozan or to allow him
to file pro se supplemental pleadings. Neither Rozan nor
Matthews has established a “conflict of interest or other most
pressing circumstances” warranting the substitution of counsel.
See FIFTH CIRCUIT PLAN UNDER THE CJA, § 5(B). To the extent that
Matthews seeks to file pro se materials, his request that the
court approve “hybrid” representation is not well-taken. See
United States v. Ogbonna, 184 F.3d 447, 449 & n.1 (5th Cir.
1999); 5TH CIR. R. 28.7. The motions filed by Rozan and Matthews
are thus DENIED.
AFFIRMED; MOTIONS DENIED.