FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS July 25, 2016
Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 15-3111
JAMES BLACK,
Defendant - Appellant.
_________________________________
Appeal from the United States District Court
for the District of Kansas
(D.C. No. 6:07-CR-10221-MLB-4)
_________________________________
Howard A. Pincus, Assistant Federal Public Defender (Virginia L. Grady, Federal Public
Defender, with him on the briefs), Office of the Federal Public Defender, Denver,
Colorado, for Defendant-Appellant.
James A. Brown, Assistant United States Attorney (Barry R. Grissom, with him on the
brief), Office of the United States Attorney, Topeka, Kansas, for Plaintiff-Appellee.
_________________________________
Before KELLY, GORSUCH, and PHILLIPS, Circuit Judges.
_________________________________
PHILLIPS, Circuit Judge.
_________________________________
On April 12, 2012, a jury convicted James Black of conspiring to distribute
cocaine, 21 U.S.C. §§ 841(a)(1), 846; using a telephone in committing or in causing
or facilitating the conspiracy, id. § 843(b); and possessing with intent to distribute
cocaine, id. § 841(a)(1). The convictions stemmed from charges made in the
government’s Fifth Superseding Indictment in a longstanding, multi-defendant case
that began in November 2007. Between the First Superseding Indictment (in which
Black was first charged) and the jury trial, the government filed another four
superseding indictments and twice dismissed the case—once to pursue an
interlocutory appeal and once to avoid dismissal of the cocaine-conspiracy charge.
After the jury’s verdict, the district court sentenced Black to 30 years’ imprisonment.
Black appeals, arguing that the district court plainly erred in calculating the
United States Sentencing Guidelines advisory range at 360 months’ imprisonment to
life. Black also argues that the government’s 23-month delay in bringing him to
trial—the total delay between the first two indictments that charged Black and their
later dismissal, together with the delay between the filing of the second-to-last
indictment and Black’s trial—denied him his Sixth Amendment right to a speedy
trial. Exercising jurisdiction under 28 U.S.C. § 1291, we conclude that the
government didn’t violate Black’s constitutional right to a speedy trial. But because
we conclude that the district court plainly erred in calculating Black’s advisory
Guidelines range, we vacate Black’s sentence and remand for resentencing.
BACKGROUND
Because this appeal involves Black’s Sixth Amendment right to a speedy trial,
we detail this case’s procedural history at length, paying special attention to dates.
2
A. Procedural History
1. December 19, 2007–July 30, 2008: First Superseding Indictment
(7 months, 11 days)
The government didn’t charge Black in its original indictment, filed on
November 28, 2007. But on December 19, 2007, the government secured a First
Superseding Indictment, charging Black and 8 other defendants with 48 criminal
offenses related to their cocaine-distribution network.1 At Black’s arraignment on
December 21, the magistrate judge detained Black pending a trial set for March 18,
2008. On February 7, 2008, Black moved to continue the motions-filing deadline, the
status conference, and the jury trial. The district court granted Black’s motion and
reset the trial for May 6.2
On March 9, relying on the Fourth, Fifth, and Fourteenth Amendments, Black
moved to suppress statements that he had made to law-enforcement officers and
statements that he had made during wiretapped telephone conversations with other
members of the cocaine-distribution network.3 Other defendants filed their own
1
The First Superseding Indictment charged Black under Count 1 (conspiring
to distribute over five kilograms of cocaine), Counts 10–13 (using a telephone in
committing or in causing or facilitating the conspiracy), and Counts 14–17
(possessing with intent to distribute cocaine).
2
From the appellate record, we can’t tell when the district court continued the
May 6 trial, though the district-court docket reveals that a continuance must have
been granted.
3
Because Black stated an unusual constitutional claim against what appears to
be coconspirator statements recorded during a lawful wiretap, we clarify that Black
didn’t base this particular motion on Fed. R. Evid. 801(d)(2)(E). Read broadly, his
motion seems to allege that police obtained statements from him during a custodial
3
motions to suppress, and the court set a hearing on all of the suppression motions for
April 16. At the hearing, Black orally moved to withdraw his motion to suppress
because of ongoing plea negotiations.
On May 2, the government moved for a James hearing to determine the
admissibility of coconspirator statements under Fed. R. Evid. 801(d)(2)(E). See
generally United States v. James, 590 F.2d 575 (5th Cir. 1979). On May 16, the court
set a change-of-plea hearing for Black on May 21. On May 19, one of Black’s
codefendants, Michael Biglow, filed a motion to suppress “evidence found in his
home, arguing that authorities lacked probable cause to search his residence.” United
States v. Biglow, 562 F.3d 1272, 1275 (10th Cir. 2009). Also on May 19, the court
reset Black’s change-of-plea hearing for June 2. On June 2, Black pleaded guilty to
Counts 1, 14, and 15 of the First Superseding Indictment. The court set Black’s
sentencing for August 18.
On June 6, the court granted Biglow’s motion to suppress. On June 9, the
government filed an interlocutory appeal of the court’s order granting Biglow’s
motion to suppress. Because of this interlocutory appeal, the government
simultaneously moved to continue the trial or, alternatively, to dismiss the case
without prejudice. The court granted the government’s motion to dismiss the charges
against five defendants without prejudice, but not the charges against Black,
presumably because Black had already pleaded guilty. On July 1, Black’s attorney
interview and during intercepted phone calls in violation of the Fourth, Fifth, and
Fourteenth Amendments, as well as Miranda v. Arizona, 384 U.S. 436 (1966).
4
filed a motion to withdraw as counsel, which the court denied after a hearing on July
14. On July 21, Black moved to withdraw his guilty plea, and on July 24 the district
court granted the motion. The government then moved to dismiss the charges pending
against Black without prejudice, which the court granted on July 30.
Thus, a total of 7 months and 11 days elapsed between December 19, 2007
(when the government first charged Black under the First Superseding Indictment),
and July 30, 2008 (when the court dismissed the charges against Black without
prejudice).
2. May 13, 2009–November 4, 2009: Second Superseding Indictment
(5 months, 22 days)
On May 13, 2009, having secured a reversal of the district court’s order
granting Biglow’s motion to suppress, the government filed a Second Superseding
Indictment. The Second Superseding Indictment charged 17 defendants with 131
criminal offenses, an expansion of the First Superseding Indictment’s charging 9
defendants with 48 crimes.4 Also on May 13, the government moved to designate the
case as complex.5 On June 4, the district court scheduled a jury trial for August 11.
4
The Second Superseding Indictment charged Black under Count 1
(conspiring to distribute over five kilograms of cocaine); Counts 17, 42, 55, 71, and
87 (using a telephone in committing or in causing or facilitating the conspiracy); and
Counts 18, 49, 62, and 90 (possessing with intent to distribute cocaine). The Second
Superseding Indictment charged 16 of the 17 defendants under Count 1, including
Black.
5
Although the government notes in its brief that “the district court declared
the case complex” on June 26, 2009, citing the Order of Discovery and Scheduling,
we don’t see this document in the appellate record. Appellee’s Resp. Br. at 5. Thus,
we can’t say whether the district court ultimately granted the government’s motion.
5
On June 14, Black was arrested. At his arraignment the next day, the court
ordered Black temporarily detained and set a detention hearing for June 17. The court
filed an Order of Detention Pending Trial on June 18. On June 30, the court vacated
the August 11 trial setting. By July 15, the court had arraigned all of the defendants,
appointed them counsel, and provided them with detention hearings.6
Between May 28 and August 14, the defendants filed several substantive
motions, including two motions to suppress, a motion for a James hearing, and a
motion for a bill of particulars. On July 23, Black filed a motion requesting drug,
alcohol, and psychological evaluations. On August 14, Black filed a motion to sever
his trial from that of his codefendants, a motion to join in over ten of his
codefendants’ substantive motions (including the motion for a James hearing), and a
motion to suppress statements that he had made to law enforcement officers and
statements that he had made during recorded telephone conversations with other
members of the cocaine-distribution network.7 On September 15, the court set the
defendants’ jury trial for November 3.
On September 15, the court scheduled a hearing for September 22 to hear
arguments on Black’s motion to suppress. After a September 17 hearing on a number
6
The government says that “[o]btaining the initial appearances of the
defendants was complicated by the fact that one was in state custody . . . and two
were found hiding out in Oklahoma . . . .” R. vol. 1 at 509–10; see Appellee’s Resp.
Br. at 5.
7
This motion to suppress was similar to the motion to suppress Black had filed
during the pendency of the First Superseding Indictment. Again, we clarify that
Black didn’t base either motion on Fed. R. Evid. 801(d)(2)(E).
6
of the defendants’ substantive motions, the court issued an order denying the
majority of the motions, but the court didn’t address Black’s motion for evaluations.
Although on September 22 the court heard argument on another defendant’s motion
to suppress, the court didn’t then consider Black’s motion to suppress as it had
intended. On September 24, the court held a James hearing on a different defendant’s
motion—the one Black had moved to join. On September 25, the district court
granted Black’s motion for drug, alcohol, and psychological evaluations. On
September 28, the court scheduled a hearing for October 21 to resume and complete
the September 24 James hearing. On October 20, Black filed an objection to the
government’s proposed Fed. R. Evid. 404(b) evidence. On October 23, after the
October 21 James hearing, Black filed his own motion to exclude statements of
coconspirators. On October 26, the court scheduled a hearing for October 29, at
which the court planned to address Black’s August 14 motion to suppress.
In an October 29 order, the court granted the defendants’ (including Black’s)
motions to exclude coconspirator statements, having determined that the government
had “failed to demonstrate by a preponderance of evidence that defendants were
engaged in a . . . conspiracy.”8 R. vol. 1 at 437–38. In a footnote at the end of the
order, the court directed that “[i]f the government believes it can somehow proceed
on count 1 [the conspiracy-to-distribute-cocaine count] in light of the court’s ruling
herein, it must forthwith file a memorandum supporting its position. Otherwise the
8
To admit coconspirator statements at trial under Fed. R. Evid. 801(d)(2)(E), a
trial court must first determine, by a preponderance of the evidence, that a conspiracy
existed. United States v. Owens, 70 F.3d 1118, 1123 (10th Cir. 1995).
7
court will assume that the government will not proceed with count 1.” R. vol. 1 at
438 n.6. Also on October 29, the court held a hearing on Black’s motion to suppress.
On October 30, four days before trial, the government moved to dismiss the
Second Superseding Indictment without prejudice. The government explained its eve-
of-trial motion to dismiss as follows:
The United States continues to believe that it has sufficient evidence to
support the filing and prosecution of the conspiracy charge in count 1 of
the Second Superseding Indictment. However, in light of the Court’s
ruling and comment in footnote six of the [October 29 order], the United
States anticipates that if it attempts to proceed on count 1, defense
counsel will persuade the Court to dismiss count 1 prior to the trial
commencing on November 3, or immediately upon the jury being sworn
and jeopardy attaching. While the United States continues to maintain
that the Court is without authority to dismiss count 1 based upon
defense counsel’s previous and continuing requests, the United States
has nevertheless concluded that it is in the best interests of the United
States to once again request dismissal of the indictment in order to
evaluate the Court’s [October 29 order] and relevant case law.
R. vol. 1 at 449–50 (footnote omitted). The government further explained:
The reason for the motion to dismiss is not that the United States wants
to harass any of the defendants; to the contrary, the United States filed
this motion to ensure that justice is done and that the United States has
the benefit of proceeding to trial on its case pursuant to a complete and
total understanding of the relevant law.
Id. at 451.
On November 2, Black responded to the government’s motion, objecting to the
proposed dismissal. Black noted “that the charging, dismissing and recharging of this
case and the related arresting, releasing and re-arresting of the defendant” was
tantamount to harassment, “especially when the government cites the probability of a
8
loss [at trial] as a primary reason for the dismissal.” Id. at 455. Along the same line,
Black continued as follows:
For the last two years the defendant has lived under the cloud of
suspicion as a citizen accused of wrongdoing. He has been in and out of
jail[9] and in and out of court. His life has been thoroughly interrupted
and his future hangs in . . . limbo while the government formulated an
indictment, dismissed the indictment, regrouped and re[-]indicted over
the last two years. The defendant has an interest in finality and a right to
move on with his life whether as a freeman acquitted after trial by his
peers, or as a convict, knowing that the accusations against him were
tested before a jury of his peers. Continuing to keep the defendant
without resolution of this matter is unfair to the defendant and his
family.
Id. at 455–56.
On November 4, the court granted the government’s motion to dismiss. The
court concluded that the government had no ill purpose in seeking dismissal. Rather,
the court concluded that “the dismissal is sought so that the government may either
decide to continue with one large conspiracy or to break up the conspiracy count into
smaller conspiracies.” R. suppl. vol. 1 at 205. The court expressed some misgivings
about the situation, however, noting that it was “not necessarily pleased with
continuing the case.” Id. Ultimately, though, the court found “that the government’s
reasons in seeking a dismissal, without prejudice, in this case are valid and the
government is not seeking to harass defendants by moving to dismiss the
indictment.” Id. at 206.
9
As best we can tell from the appellate record, Black was detained from
December 21, 2007, until July 30, 2008, and from June 18, 2009, until November 4,
2009. He wasn’t detained during this third period, beginning with the government’s
Fourth Superseding Indictment.
9
Thus, a total of 5 months and 22 days elapsed between May 13, 2009 (when
the government charged Black under the Second Superseding Indictment), and
November 4, 2009 (when the court dismissed the charges against Black without
prejudice).
3. May 25, 2011–April 3, 2012: Fourth & Fifth Superseding
Indictments
(10 months, 9 days)
On May 25, 2011, the government filed a narrowed Fourth Superseding
Indictment,10 charging 3 defendants with 26 criminal offenses.11 On August 6, Black
was arrested.12 On August 9, the court set Black’s jury trial for October 11. On
10
The government had previously filed a Third Superseding Indictment, which
charged two of the defendants—who had also been charged under the Second
Superseding Indictment—with 88 crimes, including conspiring to distribute cocaine.
The two defendants subject to the Third Superseding Indictment pleaded guilty to the
conspiracy count. Because the Third Superseding Indictment didn’t charge Black, we
don’t discuss it here.
11
The Fourth Superseding Indictment charged Black under Count 1
(conspiring to distribute a mixture and substance containing a detectable amount of
cocaine); Counts 2, 5, 8, 9, and 10 (using a telephone in committing or in causing or
facilitating the conspiracy); and Counts 20, 22, 23, and 24 (possessing with intent to
distribute cocaine). Under the Fourth Superseding Indictment, Black was the only
defendant charged with conspiring to distribute cocaine. This differed markedly from
the Second Superseding Indictment, which had charged Black and 15 other
defendants with conspiring to distribute five kilograms of cocaine.
12
Both the government and Black assert that Black was arrested on August 8,
2009. See Appellant’s Opening Br. at 6 (“The government did not arrest Mr. Black
on the fourth superseding indictment, and bring him into court on the charges, until
August 8, 20[11].”); Appellee’s Resp. Br. at 10 (“Black was arrested on August 8,
2011, and arraigned the same day.”). But Black’s arrest warrant says that Black was
arrested on August 6, 2011. We use this date.
On May 4, 2016, Black filed an unopposed motion to supplement the appellate
record with six documents, including Black’s arrest warrant. Because we find these
10
August 10, Black was arraigned and posted bond, thus securing his release from
detention.
On September 7, Black moved to dismiss the Fourth Superseding Indictment
based on the government’s alleged violation of his constitutional speedy-trial right.13
Also on September 7, Black moved for a James hearing or, alternatively, for an order
excluding coconspirator statements if the government sought to provisionally admit
the statements.14
On September 14, the government filed a Fifth Superseding Indictment,
charging 4 defendants with 35 criminal offenses.15 On September 21, the court set a
supplemental documents helpful in putting together this case’s timeline, we grant the
motion.
13
Black also argued that the government had violated his statutory right to a
speedy trial under the Speedy Trial Act, 18 U.S.C. § 3161(c)(1). Black’s argument
under the Act in his motion to dismiss occupied two paragraphs, and Black hasn’t
reasserted this statutory argument on appeal.
14
In his motion, Black acknowledged that “[a] James hearing has previously
been held in this case and the court found that the government had failed to show the
requisite interdependence of the alleged conspirators necessary to show the existence
of a conspiracy.” R. vol. 1 at 490. Black argued, however, that the conspiracy alleged
in the Fourth Superseding Indictment was “either a different and distinct conspiracy
from that alleged in the previous indictment or, in the alternative, it is the same
alleged conspiracy of which the government failed to provide sufficient evidence
during the previously held James hearing.” Id. Because of this, Black argued, “[a]
new hearing is necessary to ensure that there is sufficient evidence to show the
existence of the conspiracy in order to support the use of any alleged co-conspirator’s
hearsay statements.” Id.
15
The Fifth Superseding Indictment charged Black under Count 2 (conspiracy
to distribute a mixture and substance containing a detectable amount of cocaine);
Counts 4, 8, 12, 15, and 16 (using a telephone to facilitate the conspiracy); and
Counts 27, 29, 30, and 31 (possession with intent to distribute cocaine). The Fifth
11
hearing on Black’s motion to dismiss for October 17 and vacated the October 11 trial
setting. On September 26, defendant Clerance Reed moved for a Daubert hearing to
contest the admissibility of proposed testimony of some of the government’s expert
witnesses, which Black moved to join on September 27. See generally Daubert v.
Merrell Dow Pharm., Inc., 509 U.S. 579 (1993).
On October 13, the court vacated the October 17 hearing on Black’s motion to
dismiss and set Black’s trial for December 20. On November 1, the court set Reed’s
requested Daubert hearing for December 13. The court also advised the parties that it
would hear argument on Black’s motion for a James hearing at the December 13
hearing.
On November 3, the court denied Black’s motion to dismiss, which he’d based
on the government’s alleged violation of his Sixth Amendment speedy-trial right.
Primarily citing Black’s failure to show how the delay in going to trial had prejudiced
his defense, the court concluded that Black “has not made out a Sixth Amendment
speedy trial violation.” R. vol. 1 at 581.16
On December 4, the government moved to continue the December 13 motions
hearing and the December 20 jury trial. On December 5, the court granted Black’s
motion to join Reed’s motion for a Daubert hearing. On December 6, the court
Superseding Indictment didn’t include any additional charges against Black, but it
did include a new, separate conspiracy count against Michael Biglow, who wasn’t
charged under the Fourth Superseding Indictment, with conspiring to distribute 500
grams of cocaine.
16
The court also rejected Black’s argument under the Speedy Trial Act.
12
scheduled a December 12 hearing on the government’s motion to continue. At the
December 12 hearing, Black was the sole defendant to object to the government’s
requested continuance. Specifically, Black’s lawyer objected as follows: “Your
Honor, [Black’s objection to the motion is] simply to remain consistent with our
previous motion on [the] speedy trial issue and to preserve Mr. Black’s standing if he
has to appeal that at some other time.” R. suppl. vol. 2 at 12–13. After the December
12 hearing, the court granted the government’s motion to continue, setting a hearing
on the James and Daubert motions for January 10, 2012, and the jury trial for
January 31, 2012.
Near the end of the January 10 hearing, the court asked the parties about
possibly continuing the trial to ensure that they had sufficient time to file post-
hearing motions and arguments on the James and Daubert motions. The court also
wanted to ensure itself time to resolve the outstanding motions while still leaving the
parties sufficient time to prepare for trial. Although the court was uneasy about the
timeline, it noted that if any of the defendants wanted to go to trial on January 31 as
planned, it would “figure out some way to get it done.” R. vol. 3 at 334. The court
granted a brief recess to allow the defendants time to decide whether they desired a
continuance or wanted to assert their speedy-trial right. After the recess, Black alone
objected to the continuance, his lawyer this time stating as follows:
Your Honor, as you know, we’ve previously filed a motion for speedy
trial based on constitutional speedy trial rights, which the Court has
overruled. Solely in order to make sure that I’m not putting myself in a
bad position if this ever gets to the Tenth Circuit, Mr. Black wishes to
reassert that right and introduce a pro forma objection to any
13
continuance. As I said, Judge, it’s only to—I don’t want to undermine
that position if I ever have to get in front of the Tenth Circuit on it.
Id. at 335. Notwithstanding Black’s objection, the court reset the trial for April 3.
Between mid-January and mid-February, the defendants and the government
filed motions addressing the James and Daubert motions. On February 22, the court
partly granted Black’s (and the other defendants’) James motion. Specifically, the
court limited who qualified as coconspirators. In doing so, the court acknowledged
that its ruling created “a practical problem” for the defendants’ trial. R. vol. 1 at 615.
Because only two of the four defendants were charged with conspiring to distribute
cocaine (and those two, Black and Biglow, were charged in separate conspiracy
counts), the court faced a problem of explaining to the jury “how to consider, or not
consider, the [coconspirator statements] as to each defendant.” Id. The court directed
the government to propose by March 2 its solution to this problem “in the form of an
instruction or instructions which will ensure that the jurors will properly consider the
calls.” Id. Likewise, the court gave the defendants until March 12 to respond to the
government’s proposed jury instructions. Offering its own possible solution, the court
advised that “the government may wish to consider severance of [the defendants not
facing conspiracy charges].” Id. Despite the court’s directions, the government failed
to submit any jury instructions by the March 2 deadline.
On March 12, despite having received no government-proposed jury
instructions, Biglow still filed his own proposed jury instructions to ensure
compliance with the court’s order. That same day, Biglow and Reed moved to sever
14
their trials. On March 14, the government belatedly filed its proposed jury
instructions. The government acknowledged that it was “late in the presentation of
this suggestion.” Id. at 626.
On March 15, the court denied the defendants’ motions for a Daubert hearing.
On March 16, Reed and Biglow responded to the government’s proposed jury
instructions. On March 19, the court scheduled a status conference for March 28. On
March 21, Black moved to join three of his codefendants’ filings: Biglow’s motion to
sever, Biglow’s proposed jury instructions, and Reed’s response to the government’s
proposed jury instructions. On March 25, the government responded to the motions to
sever.
On March 26, the court partially granted and denied the defendants’ motions to
sever.17 The court decided to “sever Reed and Reynolds from the trial of Biglow and
Black” because only Biglow and Black were facing conspiracy charges. Id. at 666.
The court also set an April 3 trial date for Biglow and Black, but it didn’t set a trial
date for Reed and Reynolds.
After a March 28 status conference, Biglow’s and Black’s trial began on April
3. On April 12, a jury found Black guilty of all the charges against him.
Thus, a total of 10 months and 9 days elapsed between May 25, 2011 (when
the government charged Black under the Fourth Superseding Indictment), and April
3, 2012 (when Black’s jury trial began).
17
In the same order, the court granted in part and denied in part Black’s
motion to join the defendants’ motions.
15
B. Sentencing
On April 30, 2015, the court sentenced Black. Under Black’s Amended
Presentence Investigation Report (PSR), the probation officer recommended
sentencing Black as a career-offender under U.S.S.G. § 4B1.1(b). Treating his instant
cocaine-conspiracy conviction as punishable by life imprisonment, the PSR
calculated Black’s total offense level as 37 and his criminal history category as VI.18
See U.S.S.G. § 4B1.1(b)(1). As qualifying controlled-substance offenses, the PSR
relied on Black’s 1996 conviction for possessing with intent to distribute cocaine
base and his 2003 conviction for unlawfully using a communication facility in the
commission of a felony. See U.S.S.G. § 4B1.1(a) (noting that “[a] defendant is a
career offender” if, among other things, “the defendant has at least two prior felony
convictions of either a crime of violence or a controlled substance offense”). With a
total offense level of 37 and criminal-history category of VI, the PSR calculated
Black’s advisory Guidelines range for imprisonment as 360 months to life. Black
didn’t object to being sentenced under U.S.S.G. § 4B1.1(b)(1).
At Black’s April 30 sentencing hearing, the court sentenced Black to 360
months’ imprisonment. At the conclusion of the hearing, the court said:
18
Otherwise, Black would have had a base offense level of 24 for conspiring
to distribute 656.6 grams of powder cocaine, see U.S.S.G. § 2D1.1(c)(8) (providing a
base offense level of 24 for offenses involving “[a]t least 500 G but less than 2 KG of
Cocaine”), and a two-level enhancement for obstruction of justice, U.S.S.G. § 3C1.1.
In addition, with 11 qualifying criminal-history points, Black would have had a
criminal-history category of V. This would have led to an advisory Guidelines range
of 110 to 137 months’ imprisonment.
16
I want to make something clear on the record, though. What I said about
the sentence should not be—if this case goes up on appeal, I don’t want
some circuit judge, or more likely some circuit judge’s law clerk,
thinking that I would have imposed a lesser sentence in this case if I
could have, because I think that a 360-month sentence is appropriate
and that’s what I would have imposed.
R. vol. 3 at 1460. Black timely appealed.
DISCUSSION
On appeal, Black argues that the district court erroneously calculated his
advisory Guidelines range and that the government violated his Sixth Amendment
right to a speedy trial. We conclude that the government didn’t violate Black’s
constitutional right to a speedy trial, but we vacate Black’s sentence and remand for
resentencing because the district court plainly erred in calculating Black’s advisory
Guidelines range.
A. Sentencing Error
The parties agree that the district court plainly erred in calculating Black’s
advisory Guidelines range and that we should remand for resentencing. While we
agree, we briefly summarize the error below.
Black argues that the district court erroneously calculated his advisory
Guidelines range at 360 months’ imprisonment to life. Specifically, Black argues that
the district court and the PSR incorrectly selected a total offense level of 37 under
U.S.S.G. § 4B1.1(b)(1). Because Black failed to object to this alleged error in the
district court, we review the sentence for plain error. United States v. Rosales-
Miranda, 755 F.3d 1253, 1257 (10th Cir. 2014). Thus, Black must demonstrate “that
17
(1) the district court erred; (2) the error was plain; (3) the error affects the
defendant’s substantial rights; and (4) the error seriously affects the fairness,
integrity, or public reputation of judicial proceedings.” United States v. Sabillon-
Umana, 772 F.3d 1328, 1333 (10th Cir. 2014).
The PSR and district court erred by selecting a total offense level of 37 under
U.S.S.G. § 4B1.1(b)(1).19 To apply that offense level, Black’s cocaine-conspiracy
conviction would have had to carry with it a statutory maximum sentence of life
imprisonment. Under that circumstance, Black’s maximum sentence would have been
life imprisonment—as designated under U.S.S.G. § 4B1.1(b)(1). But because the
government charged Black under 21 U.S.C. §§ 841(a)(1) and 846, his offense was
punishable by a statutory maximum of 30 years under 21 U.S.C. § 841(b)(1)(C),
leaving his proper total offense level at 34, not 37.20 See U.S.S.G. § 4B1.1(b)(2).
19
The court’s mistake likely arose from relying on the PSR, which says that
Black was convicted under 21 U.S.C. §§ 841(b)(1)(B) and 846, requiring a statutory
sentencing range of 10 years to life imprisonment. But the Fifth Superseding
Indictment didn’t charge a level of cocaine-weight, and looking at the verdict form
we see that the jury didn’t find one as would be necessary to increase the mandatory,
statutory sentencing range. See Alleyne v. United States, 133 S. Ct. 2151, 2155
(2013) (“Any fact that, by law, increases the penalty for a crime is an element that
must be submitted to the jury and found beyond a reasonable doubt. Mandatory
minimum sentences increase the penalty for a crime. It follows, then, that any fact
that increases the mandatory minimum is an element that must be submitted to the
jury.” (quotation marks and citation omitted)); Apprendi v. New Jersey, 530 U.S. 466,
483 n.10 (2000) (“[F]acts that expose a defendant to a punishment greater than that
otherwise legally prescribed [a]re by definition ‘elements’ of a separate legal
offense.”).
20
The only way a conviction—like Black’s—under 21 U.S.C. §§ 841(a)(1) and
846 could be punished by life imprisonment would be if use of the drugs caused a
18
Using a corrected total offense level of 34, U.S.S.G. § 4B1.1(b)(2), and a criminal
history category of VI, U.S.S.G. § 4B1.1(b), Black’s advisory Guidelines range
should have been 262 to 327 months’ imprisonment.
When a district court plainly errs in this fashion, we presume the defendant
meets the third and fourth elements of the plain-error standard. See Sabillon-Umana,
772 F.3d at 1334. The government concedes error and doesn’t attempt to rebut this
presumption. We therefore remand for resentencing.21
B. Violation of Black’s Sixth Amendment Right to a Speedy Trial
Black also argues on appeal that he was denied his Sixth Amendment right to a
speedy trial. We disagree, concluding that despite the lengthy delay in the
government’s prosecution of the cocaine conspiracy, Black suffered no prejudice and
failed to promptly and forcefully assert his speedy-trial right.
death or serious bodily injury. 21 U.S.C. § 841(b)(1)(C). No one contends that
Black’s case involves those factors.
21
Although the district court said at sentencing that it would have imposed the
same 360-month sentence regardless of the appropriate advisory Guidelines range,
the government doesn’t assert that Black fails to satisfy the third or fourth elements
of plain-error review. We agree with the government that “the district court’s starting
point was skewed” and, as a result, “a reasonable probability exists that the sentence
is skewed too.” Appellee’s Resp. Br. at 23; see Rosales-Miranda, 755 F.3d at 1259
(“[B]ecause the Guidelines exert their force whenever a district court complies with
the federal sentencing scheme by first calculating the Guidelines range, a
miscalculation in the Guidelines range runs the risk of affecting the ultimate sentence
regardless of whether the court ultimately imposes a sentence within or outside that
range.” (emphasis in original)). Especially because the district court’s 360-month
sentence would constitute an upward departure from the correct advisory Guidelines
range, resentencing is appropriate here.
19
Under the Sixth Amendment, “[i]n all criminal prosecutions, the accused shall
enjoy the right to a speedy and public trial.” U.S. Const. amend. VI. “[A]lthough the
[speedy-trial] right is somewhat amorphous, the remedy is severe: dismissal of the
indictment” with prejudice. United States v. Margheim, 770 F.3d 1312, 1325 (10th
Cir. 2014) (first alteration in original) (quoting United States v. Seltzer, 595 F.3d
1170, 1175 (10th Cir. 2010)); see United States v. Toombs, 574 F.3d 1262, 1274
(10th Cir. 2009) (“[W]e also consider Toombs’s Sixth Amendment speedy trial
claim, which, if successful, would require the district court to dismiss the case with
prejudice.”). “We review [a defendant’s] Sixth Amendment claim de novo, but accept
the district court’s factual determinations unless clear error is shown.” United States
v. Gould, 672 F.3d 930, 935 (10th Cir. 2012).
In determining whether a trial delay22 violated a defendant’s Sixth Amendment
right to a speedy trial, we balance four factors: “(1) the length of delay; (2) the reason
for the delay; (3) the defendant’s assertion of his right; and (4) prejudice to the
defendant.” United States v. Yehling, 456 F.3d 1236, 1243 (10th Cir. 2006) (citing
Barker v. Wingo, 407 U.S. 514, 530 (1972)). While “[n]o single factor is
determinative or necessary,” “all four are considered to determine whether a violation
has occurred.” Seltzer, 595 F.3d at 1176.
22
We use the term “delay” throughout our analysis, in keeping with Barker v.
Wingo, 407 U.S. 514, 530–32 (1972). Although “delay” has negative connotations,
we note that unjustified delays weigh against the government but justified ones don’t.
20
1. Length of Delay
Our analysis under the first factor is a “double inquiry.” Id. “First, simply to
trigger a speedy trial analysis, an accused must allege that the interval between
accusation and trial has crossed the threshold dividing ordinary from presumptively
prejudicial delay.” Id. (quotation marks and alteration omitted). “Second, if the
accused makes this showing, the court must then consider, as one factor among
several, the extent to which the delay stretches beyond the bare minimum needed to
trigger judicial examination of the claim.” Id. (quotation marks and alteration
omitted). Here, the parties agree that the delay in trying Black appropriately triggers
a Barker analysis and that the first factor weighs in Black’s favor. We agree, but we
still separately calculate the length of delay since it matters in our analysis.
The constitutional right to a speedy trial “attaches when the defendant is
arrested or indicted, whichever comes first.” Id. (quoting Jackson v. Ray, 390 F.3d
1254, 1261 (10th Cir. 2004)). The endpoint of the constitutional speedy-trial period is
the beginning of the defendant’s trial. See United States v. Larson, 627 F.3d 1198,
1209 (10th Cir. 2010) (calculating delay as 31 months where the defendant “was
indicted on August 16, 2006, but his trial did not commence until March 23, 2009”).
Importantly here, “[o]nce charges are dismissed, the speedy trial guarantee is no
longer applicable.” United States v. MacDonald, 456 U.S. 1, 8 (1982).23 In other
23
The Supreme Court elaborated on the reasoning behind this rule of law:
[When charges have been dismissed], the formerly accused is, at most,
in the same position as any other subject of a criminal investigation.
21
words, in calculating the length of delay, we don’t count any period between
dismissal and re-indictment. Using this measure, the parties say that the total delay
here was about 23 months. Looking at the three periods during which an indictment
was pending against Black—outlined at length above—we agree, calculating a delay
of about 23-and-a-half months.
Under the first part of our required double inquiry, we agree with the parties
that a delay of over 23 months is sufficient to trigger an analysis under the remaining
Barker factors. See Margheim, 770 F.3d at 1326 (concluding that a 23-month delay
was presumptively prejudicial, thereby triggering an analysis under the Barker
factors). Under the second part of our double inquiry, we conclude that the length-of-
the-delay factor weighs heavily in Black’s favor. See id. (concluding that a 23-month
delay meant that the first Barker factor “weigh[ed] entirely” in the defendant’s
favor). Because a one-year delay triggers a Barker analysis, see United States v.
Batie, 433 F.3d 1287, 1290 (10th Cir. 2006) (“Delays approaching one year generally
Certainly the knowledge of an ongoing criminal investigation will cause
stress, discomfort, and perhaps a certain disruption in normal life. This
is true whether or not charges have been filed and then dismissed. . . .
But with no charges outstanding, personal liberty is certainly not
impaired to the same degree as it is after arrest while charges are
pending. After the charges against him have been dismissed, a citizen
suffers no restraints on his liberty and is no longer the subject of public
accusation: his situation does not compare with that of a defendant who
has been arrested and held to answer. Following dismissal of charges,
any restraint on liberty, disruption of employment, strain on financial
resources, and exposure to public obloquy, stress and anxiety is no
greater than it is upon anyone openly subject to a criminal investigation.
MacDonald, 456 U.S. at 8–9 (quotation marks and citation omitted).
22
satisfy the requirement of presumptive prejudice.”), the nearly two-year delay that
Black experienced unquestionably favors Black.
2. Reason for the Delay
“It is incumbent upon the government to present acceptable reasons for the
delay.” Margheim, 770 F.3d at 1326. “The reason for a delay weighs against the
government in proportion to the degree to which the government caused the delay. A
deliberate attempt to delay a trial in order to secure a strategic advantage will weigh
heavily against the government, while valid reasons will justify a delay.” Batie, 433
F.3d at 1291 (citing Barker, 407 U.S. at 531); see id. (“Between these two poles lie
many reasons for delays for which the government bears responsibility, even when
the government did not intend the delays.”). But “continuances and other motions
filed by the defendant do not weigh against the government.” See id. (citing United
States v. Tranakos, 911 F.2d 1422, 1428 (10th Cir. 1990)).
We conclude that this factor doesn’t weigh against the government. In doing
so, we follow our approach above and divide the reason-for-the-delay discussion into
the three periods during which an indictment was pending against Black.
i. December 19, 2007–July 30, 2008: First Superseding
Indictment
(7 months, 11 days)
The bulk of the delay during the first period of Black’s indictment—the time
between the government’s filing of the First Superseding Indictment and the court’s
dismissal of the First Superseding Indictment almost seven-and-a-half months later—
is attributable to Black. That said, Black argues that the 50 days between his
23
indictment (December 19, 2007) and his motion to continue his trial (February 7,
2008) are attributable to the government. In response, the government notes that
during that interval it arrested and arraigned eight other defendants. “Under these
circumstances,” the government argues, “no ‘delay’ occurred in any sense of the
word because the case was being expeditiously and efficiently processed by the
government and the district court in conformity with regular procedures.” Appellee’s
Resp. Br. at 31. Even if we consider as a delay the 50 days between Black’s
indictment and his motion to continue, the government argues that the delay was
“valid and justified in light of the manifest necessity of arresting the defendants and
arraigning them for a joint trial.” Id.
Although the government was busy pursuing multiple defendants during this
50-day period, the delay resulting from the government’s need to arrest and arraign
multiple defendants in a multi-defendant case wasn’t Black’s fault. Black made no
motion delaying his trial until February 7, 2008. Between December 19, 2007, and
February 7, 2008, Black can’t be said to have delayed his otherwise speedy trial. That
said, the government is correct that its delay was justified given the nature of the case
and the necessity of arresting and arraigning the remaining defendants. Black seems
to agree, noting that this 50-day delay should weigh against the government, “albeit
not strongly.” Appellant’s Opening Br. at 33. But because the government was
completely justified in the 50-day delay between December 19, 2007, and February
7, 2008, we don’t weigh that period against the government at all. See Tranakos, 911
F.2d at 1428 (“Delay due to the unavailability of a necessary individual is justified,
24
so the delay caused by [a] codefendant[’s] . . . unavailability shall not be weighed
against the government.”).
Black concedes that the remainder of the first period’s delays can’t be counted
against the government. Because Black caused these delays by moving to suppress
evidence, withdrawing his motion to suppress pending plea negotiations, pleading
guilty, and withdrawing his guilty plea, we agree. After allowing Black to withdraw
his guilty plea, the court immediately dismissed the charges against Black without
prejudice.
Of this 7-month, 11-day period, then, the government isn’t responsible for any
delay, Black is responsible for more than five months of delay,24 and a 50-day delay
doesn’t count against either party.25
ii. May 13, 2009–November 4, 2009: Second Superseding
Indictment
(5 months, 22 days)
Black admits that the bulk of the nearly six-month delay during this second
period is attributable to him. We agree. Between July 23, 2009 (when Black filed a
motion for drug, alcohol, and psychological evaluations) and October 30 (when the
government filed a motion to continue or, alternatively, to dismiss the charges in the
Second Superseding Indictment without prejudice) the court entertained numerous,
24
Specifically, Black was responsible for the delay from February 7, 2008,
until July 30, 2008 (more than five months).
25
This 50-day delay represents the time between December 19, 2007, and
February 6, 2008.
25
substantive motions from all of the defendants, including motions that Black made or
joined. Thus, we wouldn’t typically weigh this time against the government.
Still, despite conceding that much of this second-period delay resulted from
his motions, Black argues that the delay should still be counted against the
government.26 He contends that the government, in its Second Superseding
26
The government asserts that Black’s argument should fail for three reasons.
First, it argues that “Black did not assert this claim as a basis for relief before the
district court.” Appellee’s Resp. Br. at 32. As a result, the government argues that he
can only prevail if he shows plain error. See id. (citing Richison v. Ernest Grp., Inc.,
634 F.3d 1123, 1130–31 (10th Cir. 2011)). Looking at Black’s motion to dismiss in
the district court, we see that Black did in fact make a similar argument. For example,
Black argued that the government moved to dismiss the Second Superseding
Indictment because the government was trying to remedy the fallout from its
overcharging:
At least with regard to the delay resulting from the second dismissal of
the charges against Mr. Black, the delay was sought in order for the
government to obtain an advantage over the defendants by denying them
a potential victory which would have resulted from the charging
decisions made by the State.
R. vol. 1 at 480 (emphasis added). Although this isn’t the exact argument that Black
asserts on appeal, it is close enough for us to consider the merits of Black’s
argument. We interpret Black’s argument on appeal as a fleshed-out version of the
argument he made to the district court, not a brand-new legal theory. Cf. Gould, 672
F.3d at 937–38 (prohibiting defendant from arguing on appeal that the government’s
delay was purposefully caused where in the district court the defendant argued only
that the government’s negligence or inadvertence caused the delay).
Second, the government argues that Black’s argument should fail because his
“alleged reason for the delay, i.e., that the indictment was an overreach, is not a
recognized reason for attributing delay to the government in the Sixth Amendment
speedy trial context.” Appellee’s Resp. Br. at 33. True, Black’s argument is a novel
one in our circuit. But the government cites no authority for the proposition that,
because an argument is new, it necessarily fails.
Third, the government argues that Black’s argument should fail because the
Second Superseding Indictment wasn’t an overreach. This assertion goes to the
26
Indictment, charged the cocaine-conspiracy count more broadly than the law allows.
Indeed, the Second Superseding Indictment charged 16 defendants under the same
conspiracy count, up from the First Superseding Indictment’s 8 defendants and the
Third and Fifth Superseding Indictments’ 2 defendants. Had the government
proceeded with a complete and total understanding of the relevant conspiracy law,
“as it eventually did on the third go-round,” Black argues that “the motions could
have been resolved with dispatch.” Appellant’s Opening Br. at 35. In sum, Black
argues that the second-period delay should weigh against the government because the
Second Superseding Indictment “was a large and unjustified overreach by the
prosecution.” Appellant’s Opening Br. at 34. Initially, we sympathize with Black. We
can’t simply ignore that the government filed six indictments in this case. Broadly
charging the conspiracy count beyond the law’s limits—at least according to the
district court and unchallenged on appeal—led to the bulk of the defendants’
motions.
Between the First Superseding Indictment and the Fifth Superseding
Indictment, the government’s conspiracy charges varied widely. The First
Superseding Indictment charged eight defendants with conspiring to distribute over
five kilograms of cocaine. The Second Superseding Indictment expanded the
conspiracy count, charging 16 defendants with conspiring to distribute over five
kilograms of cocaine. When the district court concluded, after a James hearing, that
substance of Black’s argument, and we address below whether the government’s
approach to prosecuting the conspiracy in this case was indeed an overreach.
27
the government had insufficient evidence of a conspiracy among all of the
defendants—a strong sign that the government had overcharged the conspiracy in its
Second Superseding Indictment—the government retreated by requesting that the
court dismiss the Second Superseding Indictment. After the dismissal, the
government filed a Third Superseding Indictment against two defendants rather than
16, neither of whom were Black, charging both with conspiring to distribute
cocaine.27 After both defendants subject to the Third Superseding Indictment pleaded
guilty, the government obtained a Fourth Superseding Indictment, which charged
Black—and no named coconspirators—with conspiring to distribute a mixture and
substance containing a detectable amount of cocaine.
Even after all of that, the government obtained a Fifth Superseding Indictment,
adding one defendant, whom the government charged under a separate conspiracy
count, with conspiring to distribute at least 500 grams of cocaine. Thus, the charged
conspiracy ultimately grew from 8 defendants to 16, then shrank from 16 to 4. The
charged cocaine weight also swung between extremes—initially, the government
charged Black with conspiring to distribute five kilograms of cocaine, but later
reduced it to a detectable amount of cocaine.
Because the government couldn’t sustain its broad conspiracy count charged in
the Second Superseding Indictment, we are inclined to weigh the second Barker
factor slightly against the government for this period, or at least weigh the factor less
27
Because the Third Superseding Indictment isn’t in the appellate record, we
can’t say whether it charged the two defendants with conspiring to distribute a
detectable amount of cocaine, 500 grams of cocaine, or some other amount.
28
forcefully against Black, whose motions largely responded to the overcharging. But
Black didn’t just file motions related to the conspiracy charge. He sponsored or
joined several motions that had nothing to do with the government’s prosecution of
the conspiracy charge. Specifically, on July 23, 2009, Black filed a motion requesting
drug, alcohol, and psychological evaluations. On August 14, while the evaluations
motion was still pending, Black filed a motion to suppress statements he had made to
law-enforcement officers and statements he had made during intercepted phone
conversations. Neither the motion for the evaluations nor the motion to suppress
mentioned or involved the Second Superseding Indictment’s conspiracy charge. On
September 15, the court set a hearing on Black’s motion to suppress for September
22, but the record doesn’t reveal whether the hearing occurred. On September 25, the
court granted Black’s request for the evaluations, but the motion to suppress
remained unresolved. On October 29, the court eventually held a hearing on Black’s
motion to suppress. Because these two motions, which were pending between July 23
and October 29, were unrelated to the government’s conspiracy count—the only
count Black alleges was an overreach—the time during the pendency of these
motions is properly counted against Black. Thus, despite the government’s charging
too broad a conspiracy count, Black still remains responsible for a delay of over three
months.
This leaves us with two other delays unaccounted for during this second
period. The government hasn’t accounted for either. First, the government hasn’t
explained the delay between the day that it charged Black under the Second
29
Superseding Indictment (May 13, 2009) and the day that Black filed his first
substantive motion (July 23, 2009). Second, the government has failed to explain the
delay between its motion to continue or, alternatively, to dismiss the Second
Superseding Indictment without prejudice (October 30, 2009) and the court’s
ultimate dismissal (November 4, 2009). We are clear on this point: The burden to
account for delays lies squarely with the government. See Jackson, 390 F.3d at 1261
(“The Supreme Court places the burden on the state to provide an inculpable
explanation for delays in speedy trial claims,” (citing Barker, 407 U.S. at 531)).
Because the government hasn’t carried its burden with respect to these two delays,
which account for over two months of elapsed time, we weigh this over-two-month
delay moderately against the government. See id. at 1262 (“[W]hen the petitioner
does not argue that the state deliberately delayed his trial and the state does not argue
that the petitioner caused the delay, . . . courts must conclude negligence on the part
of the government and weigh the second Barker factor moderately against the
state.”).
Thus, we conclude that, of this 5-month, 22-day period, the government is
responsible for more than two months of delay,28 and Black is responsible for more
than three months of delay.29
28
Specifically, the government was responsible for the delay from May 13,
2009, until July 22, 2009 (over two months), and from October 30, 2009, until
November 4, 2009 (five days).
29
Specifically, Black was responsible for the delay from July 23, 2009, until
October 29, 2009 (more than three months).
30
iii. May 25, 2011–April 3, 2012: Fourth & Fifth Superseding
Indictments
(10 months, 9 days)
Black argues that the government is responsible for about six months of delay
between the day the government filed its Fourth Superseding Indictment and Black’s
trial.
Black first argues that the government is responsible for the two-and-a-half-
month delay between May 25, 2011 (when the government filed the Fourth
Superseding Indictment), and August 8, 2011 (when Black was arrested).
Specifically, Black argues that “if the prosecution was negligent in its efforts to bring
Mr. Black into court, the time between indictment and his arrest counts against it.”
Appellant’s Opening Br. at 37. He then argues that “[t]he prosecution . . . made no
effort to show that Mr. Black was evading arrest and that, if he was, it . . . made
diligent efforts to arrest him.” Id. The government responds by arguing that, because
Black didn’t assert this particular argument in his motion to dismiss in the district
court, we must review it for plain error. And because Black failed to argue plain
error, the government says, he has forfeited this argument on appeal. We agree.
Black filed his motion to dismiss on Sixth Amendment grounds about a month
after his August 8, 2011 arrest. Yet Black didn’t argue in his motion that the
government was negligent in arresting him. In fact, Black never argued that the time
between the government’s filing of its Fourth Superseding Indictment and his arrest
counted against the government at all. Of course, that wasn’t his burden to bear.
Again, the burden is on the government to provide explanations for delays. Jackson,
31
390 F.3d at 1261. The government carried its burden in the district court, however,
and Black failed to respond with the argument he now attempts to make. In its
response to Black’s motion to dismiss, the government argued as follows:
[A] significant portion of the delays in this case were caused by the
defendant and his codefendants through the filing of motions, requests
for evidentiary hearings, request for a psychological examination, the
entry of a plea that was later withdrawn and the defendant’s failure to
turn himself in to the court when summoned.”
R. vol. 1 at 525 (emphasis added).
Black never responded to this argument by noting that the government was
negligent in arresting him or that the government’s characterization of the facts was
incorrect. He can’t do so now. Were we to address Black’s argument, we would have
to answer factual questions for the first time on appeal, such as whether the
government was negligent in arresting Black, which we won’t do. See Gould, 672
F.3d at 938 (refusing to address an argument for the first time on appeal because it
presented “a fact question”). Thus, we don’t count the delay between May 25, 2011,
and August 8, 2011, against the government. See id. (noting that, “[g]iven the
arguments presented before the district court, [the defendant] is now precluded” from
making brand-new arguments about the cause of the government’s delay). In fact,
because Black never responded to the government’s argument that he failed to turn
himself in when summoned before the district court, any argument he attempts to
make on appeal is forfeited.30 Thus, we are left with the government’s assertion that
30
We further note that Black failed to argue plain error in both his opening and
reply briefs. Failure to argue plain error on appeal is an entirely independent reason
32
Black failed to turn himself in when summoned. Because no one claims that Black
absconded, we don’t weigh this two-and-a-half-month delay against either party.
Although Black argues that the government bears responsibility for the
majority of the delay during this period, he accepts responsibility for delays caused
by his own motions. On September 7, 2011, Black filed a motion to dismiss the
Fourth Superseding Indictment for the government’s violation of his speedy-trial
right and a motion for a James hearing. Black properly concedes that the time
between September 7 and November 3, the day that the court denied his motion to
dismiss, is properly counted against him. Black also accepts responsibility for the
delay between his September 7 motion for a James hearing and the government’s
December 4 motion to continue the December 13 motions hearing and December 20
trial. We agree that this nearly three-month delay is properly attributed to Black.31
to disregard forfeited arguments on appeal. See Richison, 634 F.3d at 1130–31
(“Before us, . . . [the defendant] hasn’t even attempted to show how his new legal
theory satisfies the plain error standard. And the failure to do so—the failure to argue
for plain error and its application on appeal—surely marks the end of the road for an
argument for reversal not first presented to the district court.”).
31
On September 27, Black also moved to join Defendant Reed’s September 26
motion for a Daubert hearing. On November 1, the court granted Reed’s motion for a
Daubert hearing, setting the hearing for December 13—thus, the court planned to
consider both the James and Daubert motions at the same hearing. Although the
court didn’t grant Black’s motion to join Reed’s Daubert motion until December 5,
one day after the government moved to continue the December 13 motions hearing,
we only count the time between September 7 and December 3 against Black.
December 4 and onward is properly counted against the government because of its
motion to continue. Thus, the Daubert motion is irrelevant to our analysis here.
33
Although Black accepts responsibility for the delays related to his James
motion, he argues that the government is responsible for the delay from December 4,
2011, the day the government moved to continue the December 13 James/Daubert
hearing, until January 10, 2012, the day of the rescheduled hearing, because the
government moved to continue the original hearing.32 We agree with Black that this
more-than-one-month period is properly counted against the government. The
government cites the district court’s given reasons for granting the government’s
motion for a continuance and notes that the delay actually benefitted the defendants,
including Black. While that may be so, Black did object and wanted to keep the
December 20, 2011 trial setting. Based on his objection, Black didn’t need the extra
time. Thus, we attribute to the government the delay resulting from the government’s
motion to continue the December 13 motions hearing and the December 20 trial.
At the rescheduled motions hearing on January 10, 2012, the court suggested
that a continuance might be appropriate to allow sufficient time for all of the parties
to argue their James and Daubert motions. Over Black’s “pro forma objection,” the
32
The government argues that we should apply plain-error review to Black’s
“claim” that the time between December 4, 2011 (the government’s motion to
continue), and April 3, 2012 (Black’s trial), should be counted against the
government. We find it odd that the government argues that Black could have (and
should have) made this argument in his motion to dismiss, which Black filed on
September 7, 2011, long before this delay even took place. See Appellee’s Resp. Br.
at 35 (mentioning Black’s “claim” and arguing that “Black did not assert these
specific claims as grounds for relief in the district court,” citing his September 7
motion to dismiss). We consider Black’s objections to the continuances between
December 4, 2011, and April 3, 2012, sufficient to show that Black made this
particular argument in the district court. Thus, we consider whether the government
is responsible for the delay during this period.
34
court temporarily reset the trial for April 3. It is difficult to assign blame for this
delay because the court sponsored the continuance. But given Black’s objection to
the continuance, we must count this time against the government. The government
argues that while Black objected to the continuance, his objection was weak and was
made only to remain consistent with his earlier-denied motion to dismiss on speedy-
trial grounds. Although the objection may well have been weak—an argument we
address in our analysis of the third Barker factor—Black did object. So we count the
period between January 10 and April 3 against the government.
We acknowledge, however, that between January 10 and April 3, Black filed
James and Daubert motions, which stemmed from the January 10 hearing. Because
Black filed these motions on the day that the trial was originally supposed to begin
(January 31, 2012), we are tempted to agree with the government that Black
benefited from the January 10 continuance and that the time between January 10 and
April 3 shouldn’t count against the government. But we also note that, on February
22, the district court granted the defendants’ James motions in part and ordered the
government to file, by March 2, proposed jury instructions consistent with the court’s
ruling. From the appellate record, it seems that the government forgot about the
court’s order. The defendants remembered it, though, and filed the ordered proposed
jury instructions. Were we to count the period between January 10 and April 3
against Black, we would be ignoring the government’s oversight and punishing
Black’s timely motions, even if those motions arguably weren’t consistent with
Black’s stance opposing the continuance. This we won’t do, especially because Black
35
objected to the January 10 continuance and the district court said that it would
“figure out some way” to get the defendants to trial on January 31 if needed. R. vol. 3
at 334. Thus, the period between January 10 and April 3 is properly counted against
the government.
We’ve now allocated responsibility for all of the delay in this third period
except for the time between August 8, 2011 (Black’s arrest), and September 7, 2011
(the day before Black moved to dismiss the Fourth Superseding Indictment). As with
the remaining delay in the second period above, because the government bears the
burden of providing inculpable explanations for each delay and hasn’t explained this
one-month delay, we count this period moderately against the government. See
Jackson, 390 F.3d at 1262 (“[W]hen the petitioner does not argue that the state
deliberately delayed his trial and the state does not argue that the petitioner caused
the delay, . . . courts must conclude negligence on the part of the government and
weigh the second Barker factor moderately against the state.”).33
Given the above, we conclude that of the 10-month, 9-day delay during this
period, Black was responsible for a little less than three months,34 the government
33
Moreover, the district-court docket shows no activity between August 10,
2011, and September 7, 2011.
34
Specifically, Black was responsible for the delay from September 7, 2011,
until December 3, 2011 (less than three months).
36
was responsible for about five months,35 and two-and-a-half months isn’t attributable
to either party.36
iv. Second-Factor Conclusion
Having assigned responsibility for each delay to either Black or the
government, we conclude that the second Barker factor, the reason for the delay,
doesn’t weigh against the government. Of the 23-month delay in bringing Black to
trial, we conclude that the government was responsible for about 7 months of delay.
Black, on the other hand, was responsible for about 12 months of delay.37 Because
Black was responsible for over 50% of the overall 23-month delay and the
government was responsible for about 30%, this factor doesn’t weigh against the
government. See Margheim, 770 F.3d at 1327–28 (noting that defendant requested a
120-day continuance while the government only requested a 37-day continuance, and
concluding that “[f]rom a strictly numerical perspective, it is impossible to conclude
that the second Barker factor is a victory for [the defendant]”); Gould, 672 F.3d at
937 (“Thus, in total, [the defendant] bears responsibility for roughly ten percent of
the delay, while the government bears responsibility for the remaining ninety percent.
35
Specifically, the government was responsible for the delay from August 8,
2011, until September 6, 2011 (about one month), and from December 4, 2011, until
April 3, 2012 (about four months).
36
This two-and-a-half-month delay represents the time between May 25, 2011,
and August 7, 2011.
37
As noted above, a 50-day delay during the first period and a two-and-a-half-
month delay during the third period don’t weigh against either party.
37
Because the government is responsible for the bulk of the delay, this factor weighs
against the government.”).
We’ve now numerically assessed the reason-for-the-delay factor. But “in
determining how heavily the delay weighs against the government, we must also
assess the cause of the delay.” Gould, 672 F.3d at 937. Although Black is responsible
for more of the delay than the government in our case, we address the next step in our
analysis. Sometimes the government and the defendant are each responsible for
substantial delays. In such cases, even if the defendant is responsible for a majority
of the delay, we could weigh the second Barker factor against the government if the
government delayed the trial to gain an advantage over the defendant or to deprive
the defendant of his ability to defend himself at trial. See Batie, 433 F.3d at 1291 (“A
deliberate attempt to delay a trial in order to secure a strategic advantage will weigh
heavily against the government, while valid reasons will justify a delay.”). In other
words, the second Barker factor isn’t purely an arithmetic exercise where the party
responsible for less of the delay prevails under the factor. The root cause of the delay
is equally important.
In Gould, for example, we weighed the second Barker factor in favor of a
defendant, “but not heavily,” because while the government was responsible for a
majority of the delay, it didn’t purposefully cause the delay. Gould, 672 F.3d at 937–
38. In his opening brief, Black similarly acknowledges that “[t]here was no claim
here of purposeful delay.” Appellant’s Opening Br. at 30. We agree with Black. So,
38
both numerically and otherwise, the second Barker factor doesn’t weigh against the
government at all.
3. Defendant’s Assertion of His Right
Under the third Barker factor, we look to “whether the defendant has actively
asserted his right to a speedy trial.” Batie, 433 F.3d at 1291. While asserting the right
at any time is meaningful to our analysis, “[w]e may weigh the frequency and force
of the objections.” United States v. Latimer, 511 F.2d 498, 501 (10th Cir. 1975)
(citing Barker, 407 U.S. at 529). The third Barker factor weighs against a defendant
who weakly asserts his speedy-trial right long after he could have, but the factor
weighs in favor of a defendant who early, frequently, and forcefully asserts his right.
Compare Seltzer, 595 F.3d at 1179 (finding that the third factor weighed in favor of a
defendant who, without the assistance of counsel, first asserted his speedy-trial right
about six months after his indictment, noting that the defendant’s “prompt and
repeated requests” for a speedy trial “put both the district court and the government
on notice that the defendant wished to proceed to a prompt resolution of his case”),
with Margheim, 770 F.3d at 1328 (finding that the third factor weighed against a
defendant when the defendant filed a motion to dismiss 19 months after the
indictment, noting that “it is difficult to overlook how late [the defendant’s] motions
to dismiss the indictment appear on the pretrial timeline”). We conclude that this
factor weighs heavily against Black.
Black didn’t promptly assert his speedy-trial right. In fact, Black first asserted
his speedy-trial right in his September 7, 2011 motion to dismiss the Fourth
39
Superseding Indictment. On the 23-month-delay timeline, this assertion falls at about
the 16-month mark. Although Black had earlier opposed the government’s October
30, 2009 motion to dismiss the Second Superseding Indictment, he didn’t do so based
on speedy-trial grounds. Even if we credited this protest as an assertion of his
speedy-trial right, which we don’t, it still would have come 13 months after the First
Superseding Indictment. We therefore conclude that Black’s assertion of his right is
far more akin to the defendant’s late assertion in Margheim than it is to the
defendant’s prompt assertion in Seltzer.
Even when Black asserted his right, the assertions weren’t particularly strong.
Although Black forcefully moved to dismiss the Fourth Superseding Indictment, his
later actions sapped the strength of this original objection. See Tranakos, 911 F.2d at
1429 (“We are unimpressed by a defendant who moves for a dismissal on speedy trial
grounds when his other conduct indicates a contrary desire.”). At a December 12,
2011 hearing on the government’s motion to continue Black’s trial, Black’s counsel
objected to the continuance “simply to remain consistent with our previous motion on
[the] speedy trial issue and to preserve Mr. Black’s standing if he has to appeal that
at some other time.” R. suppl. vol. 2 at 12–13. We find it hard to accord this assertion
of his speedy-trial right much weight. But even this assertion of his speedy-trial right
seems strong next to Black’s next assertion.
At a motions hearing on January 10, 2012, Black was the only defendant to
object to the court’s proposed continuance. We reproduce the objection here:
40
Your Honor, as you know, we’ve previously filed a motion for speedy
trial based on constitutional speedy trial rights, which the Court has
overruled. Solely in order to make sure that I’m not putting myself in a
bad position if this ever gets to the Tenth Circuit, Mr. Black wishes to
reassert that right and introduce a pro forma objection to any
continuance. As I said, Judge, it’s only to—I don’t want to undermine
that position if I ever have to get in front of the Tenth Circuit on it.
R. vol. 3 at 335. This assertion of Black’s speedy-trial right is especially weak. Black
admitted he was solely objecting to a continuance to look consistent on appeal, not
because he felt his right to a speedy trial had actually been violated at that point. He
introduced a “pro forma objection,” which Barker itself tells us isn’t worth much in
the speedy-trial calculus. Barker, 407 U.S. at 529 (noting that considering the
assertion-of-right factor “allow[s] a court to weigh the frequency and force of the
objections as opposed to attaching significant weight to a purely pro forma
objection”). Further, Black’s pro forma objection followed reassurances from the
district court that it would try Black earlier if requested. See R. vol. 3 at 334 (“But if
any of you want a trial on the 31st, I’ll figure out some way to get it done.”). But
when the district court overruled Black’s pro forma objection, Black didn’t press the
matter. In short, the pro forma objection that Black hoped would help his case on
appeal has in fact weakened it.
We conclude that the third Barker factor weighs heavily against Black. He
failed to promptly assert his speedy-trial right, and his late assertions are particularly
weak.
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4. Prejudice to the Defendant
“The individual claiming the Sixth Amendment violation has the burden of
showing prejudice.” Seltzer, 595 F.3d at 1179 (quoting Toombs, 574 F.3d at 1275).
Even though we may conclude that a delay is presumptively prejudicial under the
first Barker factor, we will relieve a defendant of his separate “burden to present
specific evidence of prejudice” under the fourth Barker factor only if there is
evidence of an extreme delay. United States v. Hicks, 779 F.3d 1163, 1168 (10th Cir.
2015); see id. (noting that a six-year delay would qualify as an extreme delay, which
would relieve a defendant of his burden to present evidence of some specific
prejudice). Because the delay attributable to the government in this case doesn’t even
approach one year, Black must “make a particularized showing of prejudice which
addresses the interests the speedy trial right was designed to protect.” Id. at 1169.
These interests include “(i) the prevention of oppressive pretrial incarceration; (ii) the
minimization of anxiety and concern of the accused; and (iii) [the] minimization of
the possibility that the defense will be impaired.” Id. (quoting Larson, 627 F.3d
1209) (alteration in original).
To his credit, Black doesn’t assert prejudice where there is none. Of course,
the length of the delay here was a presumptively prejudicial 23 months. But Black
recognizes that he must show more, and he concedes that he can’t. In the district
court, Black notes that he asserted “anxiety and the deterioration of family
relationships, and the inconvenience of counsel visiting with [an alleged
coconspirator] (who had by that point pleaded guilty and been moved out of state) in
42
preparation for trial.” Appellant’s Opening Br. at 45. Indeed, looking back to his
motion to dismiss, we see that Black also argued that he was prejudiced because he
had “spent well over two years of his life in a jail cell awaiting trial.” R. vol. 1 at
483. But on appeal, Black acknowledges that he can’t show “specific, cognizable
prejudice.” Appellant’s Opening Br. at 45. He further notes that “[o]n prejudice, then,
there is nothing for present purposes beyond the presumption that arises in the usual
case when delay approaches a year, and that increases in force as that period
increases, here to about double that amount of time.” Id. at 46 (citation omitted).
Given this background, we don’t weigh the prejudice factor against the
government. Even if Black had reasserted all of his arguments from the district court,
the prejudice factor wouldn’t weigh against the government, because Black has failed
to show particularized instances of prejudice in his case. We therefore weigh this
factor heavily against Black. See Gould, 672 F.3d at 939 (“[F]ailure to show
prejudice is nearly fatal to a speedy trial claim.”).
5. Balancing
To review, the length-of-the-delay factor weighs heavily against the
government, the reason-for-the-delay factor doesn’t weigh against the government at
all, the assertion-of-the-right factor weighs heavily against Black, and the prejudice
factor weighs heavily against Black. Looking at this summary, our balancing job is
easy. We conclude that Black has not shown a Sixth Amendment violation.
While there was a substantial delay in this case, Black fails to cite any
specific, particularized prejudice resulting from the delay. See Perez v. Sullivan, 793
43
F.2d 249, 256 (10th Cir. 1986) (“While a showing of prejudice may not be absolutely
necessary in order to find a Sixth Amendment violation, we have great reluctance to
find a speedy trial deprivation where there is no prejudice.” (citation omitted)).
Although in its Second Superseding Indictment the government charged the
conspiracy count too broadly, Black failed to promptly and forcefully assert his right
to a speedy trial and caused much of the delay with motions unrelated to the
conspiracy charge. Nothing about the delay rendered Black unable to mount a
defense to the government’s charges or suggests that the government attempted to
gain an advantage with its motions to dismiss and multiple indictments. After
reviewing the record, we see no error in the district court’s finding that the
government acted in good faith. Because Black failed to assert his speedy-trial right
early and forcefully, we can’t even say that he was convinced that the government
had violated his Sixth Amendment right to a speedy trial. On balance, the Barker
factors weigh in the government’s favor. We therefore conclude that the government
didn’t violate Black’s Sixth Amendment right to a speedy trial.
CONCLUSION
Despite the long delay between the First Superseding Indictment and trial,
Black failed to show prejudice and weakly asserted his speedy-trial right long after
he was first indicted. Thus, he wasn’t denied his constitutional right to a speedy trial.
But the district court plainly erred when it treated Black’s conspiracy
conviction as one punishable by life imprisonment. This mistake increased Black’s
total offense level by three levels. Because the district court plainly erred in
44
calculating the advisory Guidelines range, resentencing is appropriate. We vacate
Black’s sentence and remand for resentencing in accordance with this opinion.
45