I
Overview
Dеfendant-Appellant Hector Arellano-Rivera (“Arellano-Rivera”) was convicted of unlawfully reentering the United States after being deported in violation of 8 U.S.C. § 1326. In this appeal, Arellano-Rivera argues that the district court erred by (1) refusing to dismiss the indictment against him on the basis of Spéedy Trial Act violations; (2) precluding him from presenting evidence he claims supports a necessity defense; and (3) enhancing his sentence based on prior aggravated felony convictions.
We have jurisdiction over this timely appeal under 28 U.S.C. § 1291, and for the reasons expressed below, we AFFIRM his conviction and sentence.
II
Background
A. Pre-Trial
On October 5, 1999, United States Border Patrol Agent Bernal Sanchez (“Agent Sanchez”) was on duty in the hills near Andrade, California, about two miles from the United States-Mexico border. Agent Sanchez noticed some footprints on the ground and followed the prints to a group of five individuals nearby. Arellano-Riv-era was among this grouр. Arellano-Riv-era admitted that he was a citizen of Mexico and had no legal right to be in the United States. Agent Sanchez escorted Arellano-Rivera to the Border Patrol station, where heswas advised of his Miranda rights. After waiving those rights, Arella-no-Rivera again admitted that he was born in Mexico and was a citizen of that country. Another agent reviewed Arella-no-Rivera’s immigration records and determined that he previously had been deported from the United States.
The next day, on October 6, 1999, Arel-lano-Rivera was formally arrested, and a criminal complaint was filed against him alleging that he illegally reentered the United States after having been deported, a violation of 8 U.S.C. § 1326 (West 2001). A probable cause hearing for this case was scheduled for October 21, 1999.
Before the probable cause hearing, the government made the following offer: the government would drop the more serious § 1326 charge if Arellano-Rivera agreed to plead guilty to lesser charges under 8 U.S.C. § 1325 (West 2001). At the October 21, 1999 probable cause hearing, Arel-lano-Rivera requested and was granted a two-week continuance to consider the government’s offer.
On November 4, 1999, the prosecutor, who had been led to believe that Arellano-Rivera was interested in the plea offer, filed a criminal information charging Arel-lano-Rivera with a misdemeanor count and a felony count of violating § 1325. Arellа-no-Rivera waived indictment on these § 1325 charges. On three subsequent occasions, he sought and was granted a continuance. Eventually, on January 5, 2000, Arellano-Rivera stated that he would not plead guilty to the § 1325 charges and requested additional time to consult with his attorney.
That same day, in response to Arellano-Rivera’s decision to reject its plea offer, the government obtained a grand jury indictment charging him with a single felony violation of § 1326. Two days later, on January 7, 2000, the government moved to dismiss the case that had been initiated by the § 1325 information. The district court granted the government’s motion to dismiss that case.
Arellano-Rivera’s counsel then moved to dismiss the § 1326 indictment, claiming that the government violated the Speedy Trial Act (“STA”). See 18 U.S.C. § 3161 (West 2001). The STA requires that an indictment be obtained “within thirty days from the date on which such individual was arrested or served with a summons in connection with such charges.” Id. § 3161(b). Arellano-Rivera pointed out that the initial criminаl complaint charging him with violating § 1326 was filed on *1122 October 6, 1999, but that the indictment charging him with violating § 1326 was not obtained until January 5, 2000, almost ninety days later. After briefing and oral argument, the district court denied Arella-no-Rivera’s motion to dismiss the indictment.
B. Trial
On March 14, 2000, the first day of trial, Arellano-Rivera’s counsel informed the court that he intended to call witnesses to support a defense of necessity based on his client’s medical condition. The government objected and asked the cоurt to preclude Arellano-Rivera from introducing such evidence. Defense counsel proffered that Arellano-Rivera suffers from an advanced case of Acquired Immune Deficiency Syndrome (“AIDS”) and from other related diseases, and that he was forced to reenter the United States in order to receive treatment that is unavailable in Mexico. The district court, however, found “that Mr. Arellano’s offer of proof is insufficient to support the proffered defense,” and precluded him from presenting a necessity defense to the jury.
The jury convicted Arellano-Rivera of violating § 1326. After he was found guilty, Arellano-Rivera moved for acquittal and, in the alternative, for a new trial. Along with these motions, Arellano-Rivera submitted in excess of 100 pages of materials detailing the seriousness of his medical condition. The district court denied both motions.
C. Sentencing
Before the sentencing hearing, the Probation Department reсommended, among other things, that Arellano-Rivera’s base offense level be increased sixteen levels because he had been deported previously following a conviction for an aggravated felony.
See
United States Sentencing Guidelines (“U.S.S.G.”) § 2L1.2(b)(l)(A). Arellano-Rivera objected to the sixteen-level increase because the government had not charged in the indictment nor proved at trial that he had been previously convicted of an aggravated felony. The district court rejected his argument. The court determined that
Almendarez-Torres v. United States,
Ill
Discussion
A. Speedy Trial Act
Arellano-Rivera argued below and contends again on appeal that the government violated the Speedy Trial Act because (1) it did not obtain an indictment on the § 1326 charge within thirty days of his arrest, and (2) his trial did not commence within seventy days of the filing of the information. The district court rejected both contentions. “We review a district court’s application of the Speedy Trial Act
de novo." United States v. Ramirez-Cortez,
1. Delay in Obtaining the Indictment
The Speedy Trial Act requires the filing of an indictment or informаtion within thirty days of a defendant’s arrest or service of summons.
See
18 U.S.C. § 3161(b);
Ramirez-Cortez,
However, under the statute, certain periods of delay are excluded from the thirty-day computation. See 18 U.S.C. § 3161(h)(l)-(9). Most important to this *1123 case, “[a]ny period of delay resulting from other proceedings concerning the defendant” is excludable. Id. § 3161(h)(1).
The criminal complaint charging Arellano-Rivera with violating § 1326 was filed on October 6, 1999. The STA clock started running on that date.
See United States v. Candelaria,
The government acknowledges that it did not оbtain an indictment on the § 1326 charge within thirty days of filing the criminal complaint, but contends that a significant portion of the intervening time is excludable under the statute. According to the government, once the delay attributable to “other proceedings” is properly excluded, see id. § 3161(h)(1), the indictment against Arellano-Rivera was obtained within the thirty-day safe harbor. See 18 U.S.C. § 3161(b). We agree.
We recently decided an identical issue in
United States v. Lopez-Osuna,
We observed that the government clearly did not obtain the § 1326 indictment within the thirty-day time period allotted by the STA.
Id.
at 1196-97 (citing 18 U.S.C. § 3161(b)). Nevertheless, we determined that a significant portion of the intervening time was excludable.
Id.
In particular, we noted that delay resulting frоm trial with respect to other charges against the defendant, including the period of time utilized in making necessary preparations for trial, was excludable as delay resulting from “other proceedings” concerning the defendant.
See id.
at 1197 (citing
United States v. Lopez-Espindola,
Arellano-Rivera’s case is indistinguishable from
Lopez-Osuna.
The government did not obtain an indictment charging Ar-ellano-Rivera with violating § 1326 within the thirty-day period prescribed by the STA.
See
18 U.S.C. § 3161(b). However, once Arellano-Rivera waived indictment on the § 1325 charges, the case triggered by the § 1325 information was an “other proceeding” for purposes of the STA.
See Lopez-Osuna,
*1124
As indicated abоve, the government was initially required to obtain the indictment charging Arellano-Rivera under § 1326 by
November 6, 1999.
Arellano-Rivera waived indictment on the § 1825 charges and elected to proceed by way of information on
November 4, 1999.
The STA clock was tolled at that time.
See
18 U.S.C. § 3161(h)(1)(D);
Lopez-Osuna,
Arellano-Rivera attempts to distinguish his case from
Lopez-Osuna
and claims that it is more analogous to
United States v. Ramirez-Cortez,
Ramirez-Cortez
concerned an entirely different provision of the STA than the provision at issue here.
Ramirez-Cortez
addressed whether certain amounts of time were excludable under the so-called “ends-of-justice” provision.
See
18 U.S.C. § 3161(h)(8);
Ramirez-Cortez,
Arellano-Rivera argues also that unlike the defendant in
Lopez-Osuna,
he actually informed the government that he would not accept its plea offer. Specifically, Ar-ellano-Rivera’s defense counsel claims that on November 9, 1999 (five days after waiving indictment), he unequivocally told the government that his client would not plead guilty to the charges in the § 1325 information. Arellano-Rivera asserts that the STA clock should have been reactivated on that day. Arellano-Rivera’s contention is belied by the evidence in the record. On December 1, 1999 — nearly a month after allegedly informing the government that his client would not plead guilty to the § 1325 charges — Arellano-Rivera’s counsel asked the judge for a continuance in the case that had been triggered by the § 1325 information. Defense counsel expressly stated that he anticipated Arella-no-Rivera’s case to be a “disposition”
(ie.
guilty plea).
See Lopez-Osuna,
In sum, there is no Speedy Trial Act violation under the circumstances of this case. The goals of the STA would not be served by allowing a defendant to “game the system” by reacting favorably to a government’s plea offer, waive indictment on lesser charges, and then after reneging on his part of the bargain, complain that the government failed to obtain an indictment within the appropriate time frame.
2. Delay in Going to Trial
The STA also requires a defendant’s trial to begin within seventy days of the filing of the information or indictment. See 18 U.S.C. § 3161(c)(1). Once again, the statute excludes certain periods of delay, see id. § 3161(h)(l)-(9), including “[a]ny period of delay resulting from other proceedings concerning the defendant.” Id. § 3161(h)(1).
Arellano-Rivera contends that his trial did not occur within the seventy-day window prescribed by the STA. See id. § 3161(c)(1). Specifically, he points out that the government first filed an informatiоn against him on November 4, 1999, but that his trial did not commence until March 14, 2000 — approximately 131 days later. We disagree that any STA violation occurred.
First, Arellano-Rivera was tried and convicted of violating § 1326. The prosecutor’s information charged Arellano-Rivera with the wholly separate offense of violating § 1325. The relevant charging document for purposes of the seventy-day time calculation is the grand jury indictment charging Arellano-Rivera under § 1326. The government obtained this indictment on January 5, 2000, sixty nine days before his trial began. Therefore, there was no STA violation.
Second, even if we considered the § 1325 information the relevant charging document, we would still exclude from the seventy-day time computation periods attributable to “other proceedings.”
See id.
§ 3161(h)(1). As discussed above, all the time between the filing of the § 1325 information and the § 1326 indictment— from November 4, 1999, to January 5, 2000 (a total of sixty two days) — is properly excluded as delay resulting from “other proceedings.”
See id.
§ 3161(h)(1)(D);
Lopez-Osuna,
B. Necessity
At trial, Arellano-Rivera sought to introduce evidence that he claimed would support a necessity defense. The district court listened to his offer of proof, and concluded that it was insufficient to establish all the elements of the defense. Accordingly, the district court precluded Ar-ellano-Rivera from introducing to the jury evidence of a necessity defense.
“We review
de novo
the district court’s decision to bar a necessity defense.”
United States v. Schoon,
A criminal defendant has the right to have a jury resolve disputed factual issues. However, “[wjhere the evidence, even if believed, does not establish all of the elements of a defense, ... the trial judge need not submit the defense to the jury.”
United States v. Dorrell,
The defense of necessity is available when a person commits a particular offense to" prevent an imminent harm which no available options could similarly prevent.
See id.
at 430-31. We have stated that before a defendant may present evidence of a necessity defense, his offer of proof must establish that a reason
*1126
able jury could cоnclude: “(1) that he was faced with a choice of evils and chose the lesser evil; (2) that he acted to prevent imminent harm; (3) that he reasonably anticipated a causal relation between his conduct and the harm to be avoided; and (4) that there were no other legal alternatives to violating the law.”
United States v. Aguilar,
The parties initially dispute what materials constitute Arellano-Rivera’s offer of proof. In his post-trial motions and on appeal, Arellano-Rivera submitted more than 100 pages of documents that he claims establish the four elements of necessity. The government contends that we should not consider this information because Arellano-Rivera did not offer it to the district court in his original offer of proof, and instead waited until post-trial motions to do so.
See Schoon,
In particular, Arellanо-Rivera failed to show that he had no legal alternatives other than illegally reentering the United States.
See Aguilar,
We are not unsympathetic to Arellano-Rivera’s predicament. Nevertheless, he failed to avail himself of a viable legal alternative, namely petitioning the Attorney General for reentry. Arellano-Riv-era’s speculation, however likely, that the Attorney General would not parole a previously deported felon back into the United States on the basis of his advanced casе of AIDS in no way “negate[s] the application process as a viable legal alternative.”
Crown,
The district court properly precluded Arellano-Rivera from introducing evidence of the necessity defense. Because we conclude that Arellano-Rivera’s offer of proof failed to establish that he had no viable legal alternative to illegally reentering the United States, we need not consider the other elements of the neсessity defense. However, wé do not mean to imply that necessity would have been a cognizable defense to unlawful entry even if the Attorney General had denied a request for parole. If parole is denied, an alien cannot lawfully overrule the Attorney General and parole himself as a matter of “necessity.”
C. Sentencing
Before sentencing, the Presentence Report recommended increasing ArellanoRivera’s base offense level sixtеen levels on the basis of his prior aggravated felony.
See
U.S.S.G. § 2L1.2(b)(l)(A). ArellanoRivera objected. He first pointed out that the government neither alleged in the indictment nor proved at trial beyond a reasonable doubt that he had prior aggravat
*1127
ed felony convictions. Arellano-Rivera then emphasized that he never admitted to having prior aggravated felony convictions. Coupling those two facts, Arellano-Rivera claimed that the district court could not enhance his offense level on the basis of prior aggravated felonies.
See Apprendi v. New Jersey,
Whether the district court violated the constitutional rule expressed in
Apprendi
is a question of law we review
de novo. See United States v. Nordby,
In order to decide this issue, we must clear some precedential underbrush. In its brief and at oral argument, the government called our attention to
United States v. Pacheco-Zepeda,
However, after oral argument in this case had been conducted, the Ninth Circuit amended
Pacheco-Zepeda. See Pacheco-Zepeda,
Nevertheless, we adhere to Pacheco-Zepeda’s twin legal conclusions that (1) Apprendi did not overrule Almendarez-Torres; and (2) “nowhere does Apprendi limit Almendarez-Torres to cases where a defendant admits prior aggravated felony convictions on the record.” Id. at *4-5. Simply put, “[ujnder Almendarez-Torres, the government wаs not required to include [a defendant’s] prior aggravated felony convictions in the indictment, submit them to a jury, or prove them beyond a reasonable doubt.” Id. at *5.
To the extent that our previous cases have not answered this precise issue under a
de novo
standard of review, we do so here: the district court properly enhanced Arellano-Rivera’s offense level on the basis of prior aggravated felonies even though he did not admit to having committed them, and even though the government neither alleged them in the indictment nor proved them at trial beyond a reasonable doubt.
Cf. id.
(coming to same conclusion under plain error review);
United States v. Parga-Rosas,
AFFIRMED.
Notes
. Although not a prerequisite to our holding in
Lopez-Osuna,
we observed that the case initiated by the criminal information was given a different district court docket number (99-CR-0121-J) than the case triggered by the indictment (99-CR-1961-J).
See Lopez-
*1124
Osuna,