Dеfendant-Appellant Shannon Keith Harris (“Harris”) claims that his statutory and constitutional rights to a speedy trial were violated because his trial began over three years after his initial appearance in court. He also contends that the district court erred in denying his motion to suppress evidence, that the jury verdict was based on insufficient evidence, and that he received a life imprisonment sentence in violation of the Eighth Amendment. For the following reasons, we affirm.
FACTS AND PROCEEDINGS
Harris was arrested in the course of a narcotics investigation conducted by the Brazoria County Sheriffs Department. A confidential police informant purchased crack cocaine from Harris on two occasions in May and July 2003; both times, Dale Marie Kubin, Harris’s common-law wife, delivered the drugs to the informant. Based on these transactions, Officer Ruben Gonzalez obtained a search warrant in July 2003 from a Texas District Court Judge, which authorized the search of Harris’s house and Harris’s auto detail shop for drugs and items related to illegal drug activity.
*427 On July 11, 2003, Officers Randall Rhyne and James Gayle were on the search team in charge of executing the warrant. A surveillance team led by Gonzalez informed them that Harris was at his auto detail shop. As Rhyne and Gayle drove towards the shop in an unmarked vehicle, they were notified, that Harris had apparently realized that he was being watched and was leaving the shop. Rhyne and Gayle spotted Harris as he was driving away in a pick-up truck and followed him. They observed Harris driving erratically at excessive speeds and running several stop signs. They then activated their vehicle’s front lights and held their badges out the windows while yelling for Harris to stop, but Harris did not immediately comply. Eventually, Harris turned into a private driveway and stopped his truck. Rhyne and Gayle ordered him out of the truck and arrested him. Shortly thereafter, other police units that had been following them arrived at the scene.
Several police units then drove with Harris to his residence in order to execute the search warrant. • Rather than leave Harris’s truck behind, Gayle also drove it to the residence to be inventoried. While the officers were searching the residence, a drug-sniffing dog was brought to the truck. The dog alerted to the driver’s side door, from which a bag was removed that contained a loaded revolver. Officers recovered another loaded pistol in an SUV owned by Harris and parked in the garage attached to his residence. Finally, while searching а room off of the back the garage, the police found crack cocaine and other narcotics, various drug paraphernalia, a third firearm, and marked money that the police informant had used to pay Kubin.
Harris was charged with federal firearms and narcotics offenses on October 28, 2003, and made his initial appearance with counsel on November 20, 2003. On December 17, 2003, a first superceding indictment was filed, adding a conspiracy count against Harris and charging Kubin with conspiracy and possession with intent to distribute cocaine base. On January 9, 2004, Harris was arraigned on the first superceding indiсtment and received a trial date of March 8, 2004.
Starting in February 2004, however, Harris filed numerous pretrial motions, including several motions to continue his trial. For purposes of Harris’s speedy trial argument, particularly relevant is Harris’s motion to suppress, filed December 1, 2004, for which a hearing was conducted on February 24, 2005. The magistrate judge issued his report and recommendation on April 12, 2005, and the district court denied the motion on May 12, 2005. In the meantime, Harris had .filed a motion requesting a change of counsel on April 26, 2005, and was appointed a new counsel on May 12, 2005. At a status conference on June 9, 2005, Harris’s newly-appointed defense counsel again moved for a continuance in order to reidew the case and prepare for trial.
Another round of pretrial motions, principally filed by Harris, further delayed the start of the trial. In August 2006, Harris moved to dismiss the indictment on speedy trial grounds, but the district court did not rule on the motion immediately. Harris’s trial finally started on April 9, 2007. By that time, Kubin had pleaded guilty to the charges against her, and a second. superceding .indictment that no longer included Kubin had been filed against Harris. On-April 11, 2007, the jury returned a guilty verdict on all counts, convicting Harris of possession of a firearm by a felon, possession of а firearm in furtherance of a drug trafficking crime, conspiracy to possess with intent to distribute fifty grams or more of cocaine base, and pos *428 session with intent to distribute fifty grams or more of cocaine base. On December 6, 2007, the district court denied Harris’s motion to dismiss the indictment.
With respect to sentencing, the PreSentence Report (“PSR”) noted Harris’s lengthy criminal history, including several felony drug convictions; it recommended a mandatory term of imprisonment for life pursuant to 21 U.S.C. § 841(b)(1)(A). Harris filed objections to the PSR, arguing that given the lack of severity of his prior offenses, the application of a mandatory life sentenсe enhancement constituted cruel and unusual punishment under the Eighth Amendment. The district court overruled Harris’s objections and adopted the PSR. Harris eventually received a mandatory life sentence on the two narcotics charges, to be served concurrently with a 120-month sentence and followed by a consecutive 60-month sentence for the two firearm possession charges.
DISCUSSION
A. Speedy Trial Claims
a. Statutory Claim
Harris contends that the district court erred in denying his motion to dismiss the indictment under the Speedy Trial Act. ‘We review the factual findings supporting a Speedy Trial Act ruling for clear error and the legal conclusions
de novo.” United States v. Parker,
In this case, over three years passed between Harris’s first appearance in court with counsel in November 2003 and the commencement of his trial in April 2007. Harris concedes that this time period contains several periods of delay that are excludable from speedy trial calculations under § 3161(h). Nevertheless, he claims that, because more than seventy non-excludable days elapsed from his initial appearance until his trial, the Speedy Trial Act was violated.
First, the parties disagree as to the appropriate starting point for the speedy trial clock. The government argues that the statutory exclusion for “[a] reasonable period of delay when the defendant is joined for trial with a codefendant as to whom the time for trial has not run and no motion for severance has been granted” tolls the seventy-day period until January 9, 2004 — the date of the arraignment оn the first superceding indictment joining Kubin as a co-defendant. 18 U.S.C. § 3161(h)(6). Indeed, under this exclusion, “the speedy trial clock does not begin to run in a multi-defendant prosecution until the last codefendant makes his initial appearance in court.”
United States v. Franklin,
The filing of a superseding indictment does not affect the speedy trial clock for offenses charged in the original indictment or any offense required to be joined under double jeopardy principles. The clock continues to run from the original indictment or arraignment, whichever was later, and all speedy trial *429 exclusions apply as if no superseding indictment had been returned.
“The fundamental fear we identified in
Bermea
was the government’s ‘circumventing the speedy trial guarantee through the simple expedient of obtaining superseding indictments with minor corrections.’ ”
Parker,
In the instant case, the first superceding indictment added' conspiracy charges against Harris and charged a new party, Kubin, with conspiracy and possession with intent to distribute cocaine base. As in Parker, the scope of investigation was changed to try other conspirators, and we therefore see no risk of circumvention of the speedy trial guarantee. Accordingly, the speеdy trial clock did not begin to run until Harris’s arraignment on the first superceding indictment on January 9, 2004. The parties agree that the following forty-eight days constitute non-excludable delay. There is also no dispute that the speedy trial clock was stopped on February 26, 2004, when Harris sought his first continuance of trial, and did not resume running until at least March 2005 due to several other pretrial motions.
Harris contends that the speedy trial clock began running again on March 26, 2005 — thirty days after the hearing on his motion to suppress — and continued running until he moved for a change of counsel on April 26, 2005. “[D]elay resulting from any pretrial motion, from the filing оf the motion through the conclusion of the hearing on ... such motion” is excludable for purposes of the Speedy Trial Act. 18 U.S.C. § 3161(h)(1)(D). In addition, the exclusion implicitly extends to “that time after a hearing needed to allow the trial court to assemble all papers reasonably necessary to dispose of the motion,
e.g.,
the submission of post-hearing briefs.”
United States v. Johnson,
These speedy trial calculations overlook the fact that the February 24, 2005 suppression hearing was held before a magistrate judge, who issued a report and recommendation on April 12, 2005, to which Harris later filed objections. The speedy trial effect of a magistrate judge’s involvement in a pretrial motion is an issue of first impression in this court. Those circuit courts that have had occasion to consider the issue have unanimously refused “to provide the magistrate a blank check to consume unlimited time” before
*430
issuing his report and recommendation on the motion.
United States v. Long,
However, we reject Harris’s argument that the district court must also issue a ruling within this same thirty-day time period. Harris’s argument relies on a single Seventh Circuit case suggesting that the magistrate judge and the district court should share the thirty-day excludable time under § 3161(h)(1)(H).
See United States v. Thomas,
We follow the approach set forth in Long and Andress, and recently adopted by the Second Circuit in Oberoi Once a report and recommendation is issued, the speedy trial - clock is tolled under § 3161(h)(1)(D) for a period of ten days or until objections are filed, whichever is earlier. At that point, the motion is deemed “under advisement” for another thirty-day period of excludable delay under § 3161(h)(1)(H). This framework is consistent with the purpose of the Speedy Trial Act because it subjects both the magistrate judge and the district court to specific time periods within which to rule. Yet, by providing a full thirty days for the district court to issue its ruling after all materials are filed, it also affords sufficient time for a de novo review of the issues to which a party objects, as required under 28 U.S.C. § 636(b)(1). Applying this approach to the instant case, we hold that the period of non-excludable delay attributable to Harris’s motion to suppress totaled only sixteen days — from March 26, 2005, thirty days after the hearing, until the issuance of the magistrate judge’s report on April 12, 2005.
The remaining time period in dispute runs from May 12, 2005, when the district court denied the motion to suppress and the magistrate judge appointed Harris’s new counsel, until the status conference of June 9, 2005, during which a continuance was granted at Harris’s request. In his May 12, 2005 order granting Harris’s motion for new counsel, the magistrate judge found that “the ends of justice served by granting the motion outweigh the best interests of the public and Harris in a *431 speedy trial and, therefore, any resultant delay will be excluded from the Speedy Trial Act calculations.” Nevertheless, Harris argues that these twenty-eight days constitute non-excludable delay and bring his case over the seventy-day limit.
The Speedy Trial Act expressly excludes from the Speedy Trial Act time limit:
[a]ny period of delay resulting from a continuance granted by any judge on his own motion or at the request оf the defendant or his counsel or at the request of the attorney for the Government, 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.
18 U.S.C. § 3161(h)(7)(A) (emphasis added). The magistrate judge’s order apparently grants a continuance of the case sua sponte, which is sufficient to trigger the exclusion. However, the statute also requires the court to set 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.” Id.
Here, the magistrate judge stated on the record its intent to exclude delay caused by Harris’s change of counsel. This type of delay is envisioned by the Speedy Trial Act, which provides that, in granting an “ends of justice” continuance, the court must consider “[wjhether 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)(7)(B)(iv);
see also United States v. Jackson,
The magistrate judge’s order did not expressly find that the continuance was required to allow Harris’s new counsel to prepare for trial. However, in a subsequent continuance order, granted on June 10, 2005 at Harris’s request, the magistrate judge clarified that the case was continued in order to allow Harris’s new counsel “additional time to review his case and prepare for its disposition.” In this circuit, “the
entry
of findings after granting the continuance is not reversible error so long as the findings were not actually
made
after the fact.”
United States v. Bieganowski,
The non-excludable delay in this case therefore totals sixty-four days — -the initial forty-eight days following Harris’s arraignment on the first superceding indictment plus the extra sixteen days during which the motion to suppress was under advisement by the magistrate judge. Harris’s rights under the Speedy Trial Act were not violated.
b. Constitutional Claim
Harris also contends that the pretrial delay violated his rights under the speedy trial clause of the Sixth Amendment to the United States Constitution. “The standard of review for Sixth Amendment claims is bifurcated.”
Parker,
The Sixth Amendment guarantees that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy ... trial.” U.S. Const, amend. VI. To determine whether a defendant’s constitutional right to speedy trial has been violated, this court typically balances four factors: (1) the “[l]ength of delay,” (2) “the reason for the delay,” (3) “the defendant’s assertion of his right,” and (4) the “prejudice to the defendant.”
Barker,
The length of the delay is a “triggering mechanism,” as “there is no necessity for inquiry into the other factors that go into the balance” until there has been some delay that is presumptively prejudicial.
Barker,
“In examining the reasons for the delay, we must heed the Supreme Court’s warning that ‘pretrial delay is often both inevitable and wholly justifiable.’ ”
United States v. Neal,
The third factor, the defendant’s diligence in asserting his speedy trial right, requires a showing that Harris “manifest[ed] his desire to be tried promptly.”
United States v. Frye,
*433
Because the first three factors do not weigh heavily in Harris’s favor, Harris is not entitled to a presumption of prejudice. Harris must therefore demonstrate “actual prejudice” that outweighs the other factors.
See id.
at 209. “Actual prejudice” is assessed in light of the three following interests of the defendant: (1) “to prevent oppressive pretrial incarceration”; (2) “to minimize anxiety and concern of the accused”; and (3) “to limit the possibility that the defense will be impaired.”
Barker,
Accordingly, we affirm the district court’s denial of Harris’s motion to dismiss the indictment for violation of his statutory and constitutional speedy trial rights.
B. Motion to Suppress
Harris unsuccessfully moved to suppress the evidence seized from his residence and vehicles; he challenged, among other matters, the constitutionality of the search warrant and of the stop of his pick-up truck. In an appeal of a denial of a motion to suppress evidence, “we review the district court’s factual findings for clear error and its legal conclusions, including its ultimate conclusion as to the constitutionality of the law enforcement action, de novo.”
United States v. Chavez,
a. Validity of Search Warrant
Harris first challenges the validity of the search warrant for his residence and his auto detail shop. He argues that the Texas District Court Judge who issued the warrant did not qualify as a “neutral and detached” magistrate because he represented Harris in two felony cases involving drug possession and delivery in 1997. A magistrate issuing a searсh warrant must satisfy two constitutional requirements: “[h]e must be neutral and detached, and he must be capable of determining whether probable cause exists for the requested arrest or search.”
Shadwick v. City of Tampa,
The Supreme Court has found a violation of the “neutrality and detachment” obligation of the issuing magistrate in two categories of cases: where he had a pecuniary interest in issuing thе warrant,
see Connally v. Georgia,
Nor are we convinced by Harris’s suggestion that we look to the standard found in the federal recusal statute, which provides that federal judges and magistrates must disqualify themselves “in any proceeding in which his impartiality might reasonably be questioned.” 28 U.S.C. § 455(a). The “statutory disqualification standard [is] more demanding than that required by the Due Process Clause” and thus does not guide our constitutional analysis here.
United States v. Couch,
b. Stop and Arrest
Harris next contends that his motion to suppress was improperly denied because the stop of his vehicle and his subsequent arrest violated his Fourth Amendment rights. Under the framework established in
Terry v. Ohio,
Harris’s contention that the officers had improperly intended to search his truck prior to the stop is without merit. It is well established that “[s]o long as a traffic law infraction that would have objectively justified the stop had taken place, the fact that the police officer may have made the stop for a reason other than the occurrence of the traffic infraction is irrelevant for purposes of the Fourth Amendment.”
Goodwin v. Johnson,
Further, we reject Harris’s claim that his arrest was not “reasonably related in scope” to the circumstances of the stop, in violation of the second
Terry
prong. The Supreme Court has held that warrant-less arrests for traffic offenses, such as driving with a suspended license, are permitted when the officers have probable cause to believe that a crime has been committed in their presence.
See Virginia v. Moore,
— U.S. —,
We accordingly affirm the denial of Harris’s motion to suppress.
C. Sufficiency of the Evidence
Harris arguеs that there was insufficient evidence of his “possession” of the pistol seized from his SUV to support his convictions for possession of a firearm by a felon and possession of a firearm in furtherance of a drug trafficking crime. Because Harris preserved his challenge to the sufficiency of the evidence by moving for judgment of acquittal, we employ the usual
de novo
standard of review.
United States v. Williams,
Possession of a firearm may be “actual or constructive,” and “may be proved by circumstantial evidence.”
United States v. Salinas,
We therefore affirm the denial of Harris’s motion for judgment of acquittal.
D. Eighth Amendment Claim
Harris contends that he received a life-sentence statutory enhance
*436
ment in violation of his Eighth Amendment right to be free from “cruel and unusual” punishment. U.S. Const, amend. VIII. “The appellate court is not to substitute its judgment for that of the legislature nor of the sentencing court as to the appropriateness of a particular sentence; it should decide only if the sentence is within the constitutional limitations.” Parker;
Harris was convicted of possession with intent to distribute fifty grams or more of cocaine base, and conspiracy with respect to the same amount, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A). Any person who violates these statutes “after two or more prior convictions for a felony drug offense have become final ... shall be sentenced to a mandatory term of life imprisonment without release and fined in accordance with the preceding sentence.” 21 U.S.C. § 841(b)(1)(A). There is no dispute that Harris has a lengthy criminal history that includes several felony convictions for possession and delivery of a controlled substance. However, Harris argues that these prior drug convictions were not “substantial” and that his life sentence was therefore “grossly disproportionate to the severity of [his] crime,” in violation of the Eighth Amendment.
Rummel,
Harris’s challenge to his life sentence therefore fails.
CONCLUSION
For the foregoing reasons, the judgment of the district court is
AFFIRMED.