dissenting.
I agree with the major legal premise underlying the court’s decision in this case — a conspirator commences the running of the statute of limitations as to her by affirmatively withdrawing from a conspiracy to distribute drugs in violation of 21 U.S.C. § 846. However, that premise leads the court to reverse only because it mischaracterizes the district court’s ruling. Therefore, I respectfully dissent.
Patricia Grimmett filed a motion to dismiss the indictment as time-barred by the five-year statute of limitations in 18 U.S.C. § 3282. Her motion alleged withdrawal from the conspiracy after Elmont Kerns was murdered4 and concluded by asking the district court to “schedule a factual hearing to establish on the record the facts alleged by movant in support of her motion.” The magistrate judge issued a Report and Recommendation suggesting that the motion be denied. The district court adopted the Report and Recommendation, noting that the court agreed with the magistrate judge’s conclusions of law. Thereafter, Grimmett entered into a plea agreement, paragraph 3 of which provided: “The defendant reserves the right to appeal the adverse ruling she received regarding her motion to dismiss indictment based on statute of limitations.”
The court reverses based on its view that the magistrate judge recommended denial of Grimmett’s motion because “withdrawal is not an available defense to a drug conspiracy charge under 21 U.S.C. § 846,” without “fully considering]” the statute of limitations issue. I conclude that is an unfair characterization of the operative paragraph of the magistrate judge’s Report and Recommendation:
*963The conspiracy statute under which Defendant Grimmett is charged, 21 U.S.C. § 846, does not require proof of an overt act. United States v. Escobar, 50 F.3d 1414, 1419 (8th Cir.1995). Thus, the defense of withdrawal is unavailable in this case. Furthermore, the issue of withdrawal from a conspiracy, even when it is available as a defense, is a fact question for the jury to decide in the context of the entire case rather than as pretrial motion. United States v. Jimenez, 622 F.2d 753, 755-56 (5th Cir.1980). “With respect to conspiracy statutes that do not require proof of an overt act, the indictment satisfies the requirements of the statute of limitations if the conspiracy is alleged to have continued into the limitations period.” United States v. Coia, 719 F.2d 1120, 1124 (11th Cir.1983) (citations omitted), [cert. denied, 466 U.S. 973, 104 S.Ct. 2349, 80 L.Ed.2d 822 (1984).]
(Emphasis added.) A fair reading of that paragraph is that the motion to dismiss was denied at least in part because it turned upon a disputed issue of fact, Grimmett’s alleged withdrawal from the conspiracy. Indeed, it is apparent from the district court record that Grimmett’s counsel so understood it. The magistrate judge’s Memorandum of Matters Discussed and Action Taken at Pretrial Conference, filed the same day as his Report and Recommendation, recites that defense counsel announced that at trial “the defendant will rely on the defenses of statute of limitations and general denial.” In other words, defense counsel understood that the magistrate judge’s recommendation, if adopted by the district court, would not preclude proof of a statute of limitations/withdrawal defense at trial.
Viewed in this procedural context, the district court’s denial of .Grimmett’s motion to dismiss was correct. There can be no doubt that withdrawal from a conspiracy is a fact intensive issue that is submitted to the jury. See United States v. United States Gypsum Co., 438 U.S. 422, 462-65, 98 S.Ct. 2864, 57 L.Ed.2d 854 (1978); United States v. Gornto, 792 F.2d 1028, 1033 (11th Cir.1986); Jimenez, 622 F.2d at 755-58. Indeed, there is a split among the circuits on the question whether withdrawal is an element of the government’s case because it goes to the issue of membership in the conspiracy, or an affirmative defense that the defendant must prove. See United States v. MMR Corp., 907 F.2d 489, 499-500 (5th Cir.1990), cert. denied, 499 U.S. 936, 111 S.Ct. 1388, 113 L.Ed.2d 445 (1991). If it is an element of the government’s case — an issue we need not address — a defendant unquestionably has a Fifth and Sixth Amendment right to have it submitted to the jury. See United States v. Gaudin, 515 U.S. 506, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995). Thus, it was neither error nor an abuse of discretion for the district court to deny Grimmett’s request for a pretrial evidentiary hearing on this issue, and then to deny the motion to dismiss because it turned on a disputed issue of fact. As the Eleventh- Circuit said in United States v. Coia, 719 F.2d at 1125 (cited by the magistrate judge):
The district court should approach with delicacy and circumspection the question of whether to dismiss a case on the ground that, a,t trial, the proof, as a matter of law, would fail .to establish the commission of the charged offense within the limitations period.
In these circumstances, I conclude that Grimmett’s appeal on this issue fails for two reasons. First, in the plea agreement she reserved only the right to appeal the district court’s ruling on her motion to dismiss, and that ruling was correct. Second, further litigation of Grimmett’s claim of withdrawal is foreclosed by her guilty plea, which “comprehend[ed] all of the factual and legal elements necessary to sustain a binding, final judgment of guilt.” United States v. Broce, 488 U.S. 563, 569, 109 S.Ct. 757, 102 L.Ed.2d 927 (1989). I further conclude that Grimmett does not qualify for a safety valve sentencing departure. Accordingly, I would affirm.
. For additional background regarding the underlying conspiracy, see United States v. Moore, No. 97-2603, 149 F.3d 773 (8th Cir. Jun.26, 1998).