Tаylor James Bloate was convicted of one count of being a felon in possession of a firearm, 18 U.S.C. § 922(g)(1), and one count of possession of cocaine with intent to distribute, 21 U.S.C. § 841(a)(1). The district court 1 sentenced him to 360 months’ imprisonment. Bloate appeals, asserting a Speedy Trial Act violation and other trial and sentencing errors. Having jurisdiction under 28 U.S.C. § 1291, this court affirms.
I.
On August 2, 2006, officers saw three vehicles, including a Nissan, driving erratically. A few minutes later, they saw the Nissan parked in front of an apartment building, аnd began surveillance. Witnessing numerous people coming in and out of the building, they suspected drug activity. Eventually, two individuals left in the Nissan. When the driver committed several traffic violations, the officers tried to make a stop. The driver pulled to the side of the road several times, but then drove off as the officers approached. Finally, the driver stopped completely. As the officers approached, they saw two small bags of a white substance (later determined to be crack cocaine) on the driver’s lap. The officers seized the cocaine and arrested the driver, identified as Bloate.
After Miranda warnings, Bloate repeatedly said, “I’m done, I’m done, I’m going to the penitentiary.” He also stated that he did not initially stop because he was trying to find the crack cocaine. When asked about the apartment building, he said, “I don’t live there, I don’t got nothing to do with that place.” The passenger was identified as Shanita Boclair, Bloate’s girlfriend. She admitted living in the aрartment building, consented to a search (both verbally and in writing), and provided officers with a key, which they *896 used to enter the apartment. Boclair accompanied the officers during the search; no one else was in the apartment. Officers discovered a large closet with closed doors. Inside the closet, they found: (1) men’s clothing; (2) a bulletproof vest; (3) three firearms (two loaded); (4) ammunition; (5) individually packaged crack cocaine (totaling about 13.47 grams); (6) paperwork with Bloate’s name; (7) Bloate’s identification card; and (8) marijuana (about 10.33 grams). In the same room, officers discovered a rental agreement for the apartment, dated July 5, 2006, and signed by Bloate and Boclair.
The officers took the firearms, ammunition, bulletproof vest, drugs, and paperwork to the police station where Bloate was. When the officers entered the room with the items, Bloate said, “that’s all mine, it’s not hers, she’s got nothing to do with my business.” The officers again administered Miranda warnings. Bloate admitted living at the apartment and owning the items. During booking, officers seized $1,077 cash from Bloate’s person.
The case then proceeded as follows:
• August 24: Bloate was indicted for being a felon in possession of a firearm, and possession with intent to distribute crack cocaine.
• September 7: Bloate moved to extend the deadline for pretrial motions, which was granted until September 25.
• September 25: Bloate waived his right to file pretrial motions.
• October 4: A magistrate judge conducted a hearing, finding Bloate’s waiver voluntary and intelligent, аnd granted leave to waive his right to file pretrial motions.
• November 8: Bloate moved to continue the trial date. Also, Bloate, his counsel, the Assistant United States Attorney, and two police officers met. Bloate signed a proffer agreement, and then admitted possession of the crack cocaine and firearms, and provided his sources for the drugs and firearms.
• November 9: The district court granted the motion, rescheduling the trial for December 18.
• December 13: The district court scheduled a change-of-plea hearing for December 20.
• December 20: At the hearing, Bloate decided not to change his plea to guilty, and requested new counsel. The district court rescheduled the trial for February 26, 2007.
• January 3: The district court appointed new counsel for Bloate.
• February 1: Bloate moved for leave to file pretrial motions out-of-time, and also to suppress physical evidence and statements.
• February 14: A magistrate judge denied Bloate’s motions, finding he had waived his right to file pretrial motions.
• February 19: Bloate moved to dismiss due to a Speedy Trial Act violation.
• February 21: The district court denied the Speedy Trial Act motion.
• February 23: The district court rescheduled the trial for March 5.
• March 5: The two-day trial began.
At trial, the government presented the testimony of the officers at the scene of the arrest and search, the firearms examiner who tested the firearms, the forensic chemist who tested the drugs, the fingerprint examiner who confirmed Bloate’s previous convictions, and an expert on crack cocaine sales and distribution. In response, Bloate presented the testimony of his landlord, his son, and his son’s girlfriend. The landlord testified that, on August 2, Bloate’s lease was not final because there was still money due, but that Bloate had permission to store some items there. *897 He also stated that the backdoor to the apartment building might have been open, allowing access to the apartment. Bloate’s son, Cortez, testified that he was arrested about the same time, and that officers brought him to the scene of the search and placed him in a police car with his father. Cortez’s girlfriend testified that the officers first searched the apartment she was in (immediately above Bloate’s apartment), and that the back door to the apartment building was open. Before its rebuttal, the government requested admission of statements Bloate made during his November 8 proffer. Over objection, the court allowed the evidence. One officer, presеnt at the proffer, testified as to Bloate’s statements admitting possession and disclosing his sources. The district court denied Bloate’s motion for judgment of acquittal. The jury found him guilty of both counts.
II.
A.
In the context of the Speedy Trial Act, this court reviews the district court’s findings of fact for clear error and its legal conclusions de novo.
United States v. Lucas,
Bloate asserts that the’ district court erred in denying his motion to dismiss due to a Speedy Trial Act violation. The indictment was filed on August 24, so the Speedy Trial Act clock began August 25. See 18 U.S.C. § 3161(c)(1). Bloate argues that only one other day is excludable, September 7, thus making the 70th day November 3. The district court rejected this reasoning, finding that the time periods between September 7 and October 4, and November 9 and February 26, excludable.
It is uncontested that the time period from August 25 to September 6 is non-excludable (13 days). The first issue is the period from September 7 — the date the district court extended the deadline for filing pretrial motions — to October 4 — the date Bloate formally waived his right to file pretrial motions, a total of 28 days.
The Speedy Trial Act excludes: “Any period of delay resulting from other proceedings concerning the defendant, including but not limited to ... (F) delay resulting from any prеtrial motion, from the filing of the motion through the conclusion of the hearing on, or other prompt disposition of, such motion.” 18 U.S.C. § 3161(h)(1)(F). Here, Bloate never filed a pretrial motion. He requested an extension of the deadline for filing pretrial motions, but at that deadline, instead of filing motions, he waived his right to do so. Thus, subsection (F) does not apply.
Even without applying subsection (F), six circuits hold that pretrial motion preparation time may be excluded, if the court specifically grants time for that purpose, because that time is “delay resulting from other proceedings concerning the defendant.”
See United States v. Mejia,
Two circuits decline to use § 3161(h)(1) to exclude time allowed for preparation of pretrial' motions.
See United States v. Jarrell,
This court has acknowledged the circuit split, but not decided the issue.
See United States v. Suarez-Perez,
It is uncontested that the time period from October 5 to November 8, 35 days, is non-excludable, thus bringing the total to 48 non-excludable days. The next issue is the time period from November 9—the date the district court granted Bloate’s motion to continue the trial date—to December 18—the scheduled trial date, a total of 40 days.
The Speedy Trial Act specifically excludes:
Any period of delay resulting from a continuanсe granted by any judge on his own motion or at the request of the defendant or his counsel ... if the judge granted such continuance on the basis of his findings that the ends of justice served by taking such action outweigh the best interest of the public and the defendant in a speedy trial. No such period of delay resulting from a continuance granted by the court in accordance with this paragraph shall be excludable under this subsection unless the court sets forth, in the record of the case, either orally or in writing, its reasons for finding 'that the ends of justice served by the granting of such continuance outweigh the best interests of the public and the defendant in a speedy trial.
18 U.S.C. § 3161(h)(8)(A). Subsection (B) then provides factors to consider in determining whether to grant such a continu-
*899
anee. 18 U.S.C. § 3161(h)(8)(B). Although the Act explicitly requires that the judge make an ends-of-justice finding before granting a continuance, it is ambiguous when that finding must be set forth in the record.
See
18 U.S.C. § 3161(h)(8)(A);
Zedner v. United States,
Bloate argues that this time period is non-excludable. True, in granting the continuance on November 9, the district court did not set forth an ends-of-justice finding on the record. However, in denying Bloаte’s Speedy Trial Act motion on February 21, the district court stated:
The court did not specify the reasons for the granting of defendant’s request for a continuance, but in effect, did so on the basis of the motion. In the motion, defendant stated that ‘Counsel needs additional time to investigate and prepare this matter for trial. Counsel believes that granting this continuance would outweigh the interests of the public and defendant to a Speedy Trial.’ This should comport with the requirements of 18 U.S.C. § 3161(h)(8)(A).
This finding referencеs one subsection (B) factor: “Whether the failure to grant such a continuance ... would deny counsel for the defendant ... the reasonable time necessary for effective preparation.... ” 18 U.S.C. § 3161(h)(8)(B)(iv).
See Lucas,
The next issue is the time period from December 20—the date the district court continued the trial date for a second time—and February 23—the date the district court continued the trial date for a third time, a total of 66 days. Again, Bloate asserts that this period is non-ex-cludable. Again, the district court did not set forth an ends-of-justice finding in the record on December 20. The court did include one in its February 21 order:
On December 20, 2006 it was obvious to the court, although specific findings were not made, that defendant and his counsel, at that time, were not able to resolve thеir conflicts. Although the court was reluctant to appoint counsel for the defendant at that late date, it appeared unwise not to do so as defendant should have had at least one further opportunity to have counsel of his choice, even at the government’s expense. It was therefore obvious to the *900 court that a delay was required in order that the ends of justice could more properly be served in this continuance. To force the defendant to gо to trial on a date when a plea was to be implemented, when the defendant elected not to implement the plea agreement and express severe dissatisfaction with his attorney would, in fact, create serious consequences for the defendant. Granting these continuances obviously outweighed the best interest of the public and the defendant to a Speedy Trial.
This finding incorporates one of the § 3161(h)(8)(B) factors: “Whether the failure to grant such a continuancе ... would deny the defendant reasonable time to obtain counsel, would unreasonably deny the defendant or the Government continuity of counsel, or would deny counsel for the defendant or the attorney for the Government the reasonable time necessary for effective preparation.... ” 18 U.S.C. § 3161(h)(8)(B)(iv).
See Lucas,
The final issue is the time period from February 23—the date the district court continued the trial date for a third time— and March 5—the date the trial commenced, a total of nine days (not counting February 23, which was excluded above). It is not necessary to decide whether this period is excludable. Even if it is not, only 58 days passed between Bloate’s indictment and trial, fewer than the 70 allowed by the Speedy Trial Act.
The Speedy Trial Act was not violated. The district court did not err in denying the motion to dismiss.
B.
Bloate argues that the district court erred in refusing to hear his pretrial motions, thus violating due process. When determining if a constitutional right has been waived, this court reviews the district court’s factual findings for clear error, and the ultimate determination of whether a waiver occurred de novo.
United States v. Caldwell,
Bloate maintains that his waiver was not knowing because hе was not adequately informed of the consequences of a waiver. To the contrary, the transcript of the waiver hearing shows that the magistrate judge expressly explained the nature and consequences of a waiver in detail. The judge explained the nature of what Bloate was waiving by stating, “These types of motions often attack the actions of the police when they arrest somebody and whether they took the statements properly or took evidence or seized or searched or arrested people properly....” The judge told Bloate that “once you waive these motions today you can’t come back the a[sic] later time and file them.... ” Bloate said he understood. Finally, the judge told Bloate that “what you’re giving up by waiving these motions is the right to have a judge make a finding that what the police did at the inception of your case was unconstitutional.” Bloate again said he understood.
Bloate knowingly and intelligently waived his right to file pretrial motions.
*901
The district court did not err in refusing to hear his pretrial motions.
See United States v. Garrido,
Alternatively, Bloate asserts that even if he did waive his right to file pretrial motions, the district court should have allowed them out-of-time under Federal Rule of Criminal Procedure 12(e). Rule 12(c) аllows the court to “set a deadline for the parties to make pretrial motions.” Fed.R.Crim.P. 12(c). Rule 12(e) provides that a “party waives any Rule 12(b)(3) defense, objection, or request not raised by the deadline the court sets under Rule 12(c).... For good cause, the court may grant relief from the waiver.” Fed. R. Crim P. 12(e). This court “will reverse a decision declining to consider an untimely pretrial motion only for an abuse of that discretion.”
United States v. Salgado-Campos,
In his motion for leave to file his untimely pretrial motions, Bloate stated “thаt his previous waiver of pretrial motions was not knowing or voluntary, rather, it was based on a misunderstanding between the Defendant and his previous attorney.” As detailed above, Bloate’s waiver was knowing and voluntary, due to the magistrate judge’s explanation of the right and its consequences. Thus, Bloate offers no good cause justifying his delay. The district court did not abuse its discretion in denying his motion. See id. (“Because Salgado-Campos fails to show good cause justifying his delay, the district court was well within its discretion tо deny his request for an extension of time in which to file pretrial motions.”).
C.
Bloate asserts that the district court erred in admitting his statements during the November 8 proffer. The fourth paragraph of the proffer agreement, which he specifically initialed, states:
[T]he government may use any statements made or other information provided by your client to rebut evidence or arguments materially different from any statements made or other information provided by your client. This provision is necessary to assure that no court or jury is misled by receiving information materially different from that provided by your client.
Bloate argues that he merely contested reasonable doubt, and did not offer any evidence or arguments that were materially different from the information he provided during the proffer. Rejecting this argument and allowing the evidence, the district court stated:
While counsel indicates the defense in this matter is going to be reasonable doubt, I think it’s rather obvious that the defense is that the govеrnment, of course, has to prove its case beyond a reasonable doubt but that the defendant simply was not involved with this matter, so accordingly, I think evidence of the proffer is appropriate to rebut that material. I don’t think it necessarily is required under the agreement that the proffer rebut the defendant’s testimony but the general nature of all of the evidence presented by the defendant as a part of his case as well as the cross-examination of the government’s witnessеs.
Statements made by a defendant in the course of plea negotiations, which may include proffer sessions, are usually inadmissible at trial. Fed.R.Evid. 410.
See also United States v. Velez,
354
*902
F.3d 190, 194 (2d Cir.2004) (applying plea negotiation rules to proffer sessions). However, a defendant may waive these protections, so long as there is no indication “that the agreement was entered into unknowingly or involuntarily.”
United States v. Mezzanatto,
The district court did not err in admitting statements made by Bloate during the proffer session.
See United States v. Williams,
D.
Bloate appeals the district court’s denial of his motion for judgment of acquittal, asserting that the evidence was insufficient. Under Rule 29(a), a court “must enter a judgment of acquittal of any offense for which the evidence is insufficient to sustain a conviction.” Fed. R.Crim.P. 29(a). This court “reviews the sufficiency of the evidence de novo, viewing the evidеnce in the light most favorable to the government, resolving any conflicts in the government’s favor, and accepting all reasonable inferences that support the verdict.”
United States v. Urick,
Bloate claims the government did not prove beyond a reasonable doubt his knowing possession of the firearms, a required element of § 922(g)(1), or his knowing possession of the cocaine, a required element of § 841(a)(1).
See United States v. Claybourne,
Bloate stresses that a lot of people were around the apartment building, the back door was possibly open, and that he was not found inside. However, this argument relies on weighing the evidence, which this court does not do. Viewing the evidence most favorably to the government, there was sufficient evidence of Bloate’s dominion over the bedroom where the firearms and cocaine were discoverеd. Inside the closet where the firearms were hidden, officers found paperwork with Bloate’s name and Bloate’s identification
*903
card.
See United States v. Johnson,
The district court did not err in denying Bloate’s motion for judgment of acquittal.
E.
Bloate appeals his sentence, contending that the district court violated his Sixth Amendment right to trial by jury by enhancing his sentence based on his prior convictions. This argument is foreclosed by precedent.
See, e.g., United States v. Booker,
III.
The judgment of the district court is affirmed.
Notes
. The Honorable Stephen N. Limbaugh, Sr., United States District Judge for the Eastern District of Missouri.