Dexter Lee Brown appeals from final judgment of conviction and sentence entered on June 13, 2001, on the ground that the distriсt court erred in denying his motion to dismiss indictment based on a violation of his statutory right to a speedy trial under 18 U.S.C. § 3161 et seq. (“Speedy Trial Act”). Inasmuch as a document reporting on time under the Speedy Trial Act and requesting a trial date is not a pretrial motion which may result in exclusion of time under 18 U.S.C. § 3161(h)(1)(F), time permitted to begin trial expired. Accordingly, the court erred in denying the motion to dismiss indictmеnt.
BACKGROUND 1
Brown was indicted as a convicted felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2) & (e), on November 2, 2001, but did not make his initial appearance before a United States magistrate judge until January 3, 2001. That day the magistrate judge set a stаtus conference for February 5, 2001. On February 2, 2001, Brown filed a motion to cancel the status conference, stating that no mоtions were pending and discovery was complete.
On February 26, 2001, the United States filed a “Motion for Determination of Spеedy Trial Status and/or Trial Setting,” advising the court that no trial date had been set and asking the district court either to set a heаring to determine the Speedy Trial Act status of the case or to set a trial date in compliance with the Speedy Trial Act. Two weeks later, the district court set a calendar call for Tuesday, April 3, 2001, and trial for the period beginning Wednеsday, April 4, 2001. On March 29, 2001, the district court denied Brown’s March 20, 2001 motion to dismiss indictment.
On April 4, 2001, Brown pleaded guilty pursuant to a plea agreement with the United States, reserving the right to appeal the district court’s March 29, 2001 order denying his Motion to Dismiss. On June 11, 2001, the district court sеntenced Brown to 180 months’ imprisonment and five years’ supervised release. The district court also imposed a $100.00 speсial assessment.
The parties agree that, if the “motion” of February 26, 2001 did not result in excludable time, defendant’s trial should have commenced no later than March 17, 2002, pursuant to 18 U.S.C. § 3161. 2 18 U.S.C. § 3161(c) requires that the trial of an indicted defendant commence within seventy days of the later of the indictment or the date the defendant appears before a judicial officer of thе court in which the indict *961 ment is pending. Under 18 U.S.C. § 3161(h)(1)(F), time shall be excluded for “delay resulting from any pretrial motion, from the filing of the motion through the conclusion of the hearing on, or other prompt disposition of, such motion.” Exclusion of time up to thirty days is permittеd while such a motion is under advisement. See 18 U.S.C. § 3161(h)(l)(J). The sanction for a violation of 18 U.S.C. § 3161(c) is dismissal of the indictment. See 18 U.S.C. § 3162.
Rule 88.5 of the Local Rules of the United States District Court for the Southern District of Florida requires reports to be filed by counsel every twenty days after arraignment, listing excludable time under the Speedy Trial Act and the final date for trial to commence under the Act. In addition, on January 3, 2001, in setting the case for the later cancelled status conference of February 5, 2001, the magistrate judge issued an order which, inter alia, set forth the requirements of Local Rule 88.5.
STANDARD OF REVIEW
Conclusions of law under the Speedy Trial Act are reviewed
de novo. See United States v. Drummond,
DISCUSSION
The only issue in this appeal is whether the “Motion for Determination of Speedy Trial Status and/or Trial Setting” is a motion within the meaning of 18 U.S.C. § 3161(h)(1)(F), so that the delay resulting therefrom will be excluded from the seventy days allowed for trial to commencе set forth in 18 U.S.C. § 3161(c).
See United States v. Twitty,
We are mindful that the court is not to consider the reasonableness of the delay occasioned by a qualifying motion.
See Henderson v. United States,
The document at issue was a reminder to the court to set a timely trial date. It served the function of the stаtus reports required by the local rule. While neither party complied with the technical timing requirement of the local rulе, it is clear that the request for a date for trial, setting forth the trial date required by the Speedy Trial Act time limits, served the purpose envisioned by the rule. 3
This matter is distinguishable from
United States v. Stafford,
*962
Without discussing the matter,
United States v. Olderbak,
18 U.S.C. § 3161(h)(8) sets forth stringent requirements for continuance which will satisfy the Speedy Trial Act. The court is tо consider a list of limited factors.
See
18 U.S.C. § 3161(h)(8)(B);
see also United States v. Godoy,
Accordingly, we find that a document that does nothing more than remind the court that it must set a case for trial under the terms of the Speedy Trial Act is not a motion within the meaning of 18 U.S.C. § 3161(h)(1)(F), resulting in time excluded from that set forth in 18 U.S.C. § 3161(c).
We REVERSE and REMAND with directions for the district to dismiss the indictment for violation of the Speedy Trial Act and to determine if the dismissal should be with or without prejudice.
Notes
. This facts statement is adopted from the Government's brief.
. It is irrelevant whether three to four days of delay attributable to Brown's motion of February 2, 2001, is excluded.
. Neither party argues that failure to comply with all of the requirements of the local rule has any effect on the issue before the court.