(dissenting):
The Supreme Court in Barker v. Wingo, 407 U.S. 514, 522 (1972), made it very clear that “the unsatisfactorily severe remedy of dismissal of the indictment” was not intended to reward a defendant who has failed to assert his right to a speedy trial. That is especially so where “[c]ounsel was appointed for [the defendant] immediately after his indictment and represented him throughout the period” and where “[n]o question is raised as to the competency of such counsel.” Id. at 534. The Court could hardly have been more emphatic, in evaluating the factors to be weighed to determine whether a defendant has been deprived of his right to a speedy trial, when it stated, “We emphasize that failure to assert the right will make it difficult for a defendant to prove that he was denied a speedy trial.” Id. at 532 (emphasis added).
The instant case involving a 13 month delay, in my view, is an even more compelling one for rejection of the claim of denial of a speedy trial1 than was Bark*649er where it was held that the defendant had not been deprived of a speedy trial despite the 5 year delay.
Here Roberts has been represented throughout proceedings in the district court and on appeal by Legal Aid Society counsel.2 No question has been raised as to the competency of such counsel. At the time of his arraignment on October 3, 1973, while represented by counsel, Roberts entered into a plea bargain. The government agreed to recommend that he be permitted to plead guilty to a misdemeanor information in satisfaction of the indictment charging him with ten felony counts of possessing stolen mail; he agreed to cooperate with the government in separate but related indictments against Alonzo and Henry Smith; and both the government and Roberts agreed that entry of his guilty plea would be deferred until after the government had completed its prosecution of the Smiths. That occurred on February 14, 1975, less than a month after the district court below dismissed the indictment against Roberts. There is no dispute about the terms of the plea bargain. It is undisputed that the government at all times has been willing to honor the plea bargain. It still is.
The linchpin of this case is that Roberts and his Legal Aid Society counsel, knowing full well the terms of the plea bargain stated above, sat on their hands throughout proceedings in the district court and never asserted his right, to a speedy trial until 6 months after he had turned age 26. As Judge Dooling found, “defendant raised for the first time the alleged denial of this Sixth Amendment right to a speedy trial” at an initial pretrial conference held at the instance of the Court on November 13, 1974. And, of critical importance here, Judge Dool-ing further found that defendant “could have pressed for a disposition on the very ground now assigned as a reason for dismissal — that he could hope for Youth Corrections Act treatment only if sentenced before his twenty-sixth birthday” which was May 21, 1974.
On these findings, I fail to see any denial of a Sixth Amendment right to a speedy trial, especially in view of the Supreme Court’s emphatic warning that “failure to assert the right will make it difficult for a defendant to prove that he was denied a speedy trial.” Barker v. Wingo, supra, 407 U.S. at 532.3
I would vacate the judgment of the district court and remand with instruc*650tions to reinstate the indictment to permit the parties to honor the plea bargain — a bargain that the government in the utmost good faith has been willing to honor. This surely is a most inappropriate case in which to invoke “the unsatisfactorily severe remedy of dismissal of the indictment . . . . [which] is indeed a serious consequence because it means that a defendant who [is] guilty of a serious crime will go free. . . ” Barker v. Wingo, supra, 407 U.S. at 522.
I therefore respectfully dissent.
. I agree with the majority in declining to consider Roberts’ claims based on the due process clause of the Fifth Amendment or Fed.R. Crim.P. 48(b), upon which the district court did not rule. The only claim upon which the district court ruled was the alleged denial of the Sixth Amendment right to a speedy trial. Hence that is the only issue properly before this Court.
The majority opinion, moreover, is notable for what it does not hold. It does not hold that the speedy trial clause of the Sixth Amendment applies to delay in imposing sentence. See majority opinion, Section I, last two sentences, and footnote 4. Since Roberts had entered a not guilty plea on October 15, 1973, quite clearly the majority opinion is limited to application of the speedy trial clause to a change of plea, i. e. the change of plea contemplated by the plea bargain to which Roberts and the government had agreed at the time of arraignment on October 15. This is significant in light of the repeated references in Barker v. Wingo, supra, to the nonavailabili*649ty of the speedy trial provision of the Sixth Amendment to a defendant who “definitely did not want to be tried.” 407 U.S. at 535; id. at 534, 536. The last thing that Roberts wanted was to be tried.
. His district court Legal Aid counsel was not the same as his appellate Legal Aid counsel.
. The four factors identified in Barker to be assessed in determining whether a defendant has been deprived of his right to a speedy trial are “Length of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.” 407 U.S. at 530.
The third factor — defendant’s assertion of his speedy trial right — has been discussed above. The short of it is that he totally failed to assert this right until 6 months after the critical date.
The length of delay here — 13 months — was not of sufficient magnitude to warrant dismissal in view of the many post-Barker cases in our Court and others where claims of denial of speedy trial have been rejected despite delays between the date of arrest or indictment and the date of trial of 12 months or more. E. g., United States v. Annerino, 495 F.2d 1159, 1162-64 (7 Cir. 1974) (15 months); United States v. Joyner, 494 F.2d 501, 505-06 (5 Cir. 1974) (1 year); United States v. Nathan, 476 F.2d 456, 461 (2 Cir.), cert. denied, 414 U.S. 823 (1973) (2 years); United States v. Fasanaro, 471 F.2d 717 (2 Cir. 1973) (4 years); United States v. Counts, 471 F.2d 422, 426-27 (2 Cir.), cert. denied, 411 U.S. 935 (1973) (16 months); United States v. Saglimbene, 471 F.2d 16 (2 Cir. 1972), cert. denied, 411 U.S. 966 (1973) (6 years).
The reason for the delay here was twofold; the plea bargain pursuant to which both the government and the defendant agreed that entry of his plea would be deferred until after disposition of the case against the Smiths; and Judge Travia’s involvement in the trial of United States v. Bernstein, 72 Cr. 587. The latter recently has been rejected by us as a ground for an asserted denial of the Sixth Amendment right to a speedy trial. United States v. Drummond, 511 F.2d 1049 (2 Cir. 1975).
The claimed prejudice to defendant here is a far cry from the prejudice referred to in Bark*650er which “should be assessed in the light of the interests of defendants which the speedy trial right was designed to protect. This Court has identified three such interests: (i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired.” 407 U.S. at 532. Obviously no such interest is here involved. The only claimed prejudice is Roberts’ asserted loss of eligibility to be treated as a young adult offender under the Federal Youth Corrections Act. 18 U.S.C. §§ 4209, 5005 et seq. (1970). With deference, the majority opinion’s massive reliance upon this factor strikes me as taking for granted a great deal more than is warranted, including whether Roberts himself would have requested treatment under the Y.C.A. Experience on the district court has taught that a significant number of defendants eligible by reason of age for Y.C.A. treatment flatly reject it when asked, at the time of entry of plea or change of plea, whether they understand that they may be committed for as long as 6 years. And yet failure to so inform a defendant at the time of plea is ground for vacating a Y.C.A. sentence. See Matthews v. United States, 308 F.Supp. 456 (S.D.N.Y.1969), and authorities cited at 458. All else aside, Roberts’ failure to assert his right to a speedy trial until 6 months after he had turned 26 years of age is the most compelling indication that neither he nor his Legal Aid counsel ever wanted Y.C.A. treatment. What the Supreme Court said in the case of Willie Mae Barker is most assuredly true in the case of Tommy Roberts: “[W]e would be reluctant indeed to rule that a defendant was denied this constitutional right on a record that strongly indicates, as does this one, that the defendant did not want a speedy trial.” Barker v. Wingo, supra, 407 U.S. at 536.