UNITED STATES OF AMERICA, Plaintiff-Appellee, v. RAY RECI ROBINSON, Defendant-Appellant.
No. 04-2283
United States Court of Appeals for the Sixth Circuit
June 30, 2006
455 F.3d 602
Before: DAUGHTREY and COLE, Circuit Judges; GRAHAM, District Judge.
RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206. File Name: 06a0281p.06. Appeal from the United States District Court for the Eastern District of Michigan at Detroit. No. 02-80412—Gerald E. Rosen, District Judge. Argued: June 6, 2006. Decided and Filed: June 30, 2006*.
COUNSEL
OPINION
GRAHAM, District Judge. Defendant-appellant Ray Reci Robinson appeals his conviction and sentence for one count of being a felon in possession of a firearm in violation of
Facts of the Case
Defendant was convicted in April of 2000 for possession of cocaine in the Wayne County Circuit Court, Wayne County, Michigan, and was sentenced to a lifetime term of probation. In December of 2000, the state court imposed drug treatment as an additional condition of probation, and on January 18, 2001, defendant was placed in the Gateway Detention Facility. He left the facility on March 16, 2001, and a probation violation warrant was issued for his arrest.
On April 27, 2001, police officers in Detroit, Michigan executed a search warrant at 12684 Sussex in Detroit. Defendant was observed attempting to climb out of a bedroom window. He had a small nickel-plated revolver in his hand. He was arrested, and officers found twenty-eight small plastic bags of crack cocaine in his pocket. Plaintiff was confined in the Wayne County Jail on the probation violation warrant. On May 2, 2001, he pleaded guilty to the probation violation.
On May 14, 2001, a federal criminal complaint was filed charging defendant with being a felon in possession of a firearm on April 27, 2001, and an arrest warrant was issued on the complaint. On May 15, 2001, the United States Marshal‘s Service in Detroit lodged a detainer against defendant
On May 18, 2001, defendant was sentenced in state court to a term of imprisonment of 3-1/2 years to 20 years on the probation violation. He was transported to the Macomb Correctional Facility on May 21, 2001, to serve the state sentence. By letter dated May 29, 2001, the Michigan Department of Corrections notified the United States Marshal‘s Service that the federal detainer had been lodged against the defendant. The letter further stated that the defendant “is serving a 3 year 6 month to 20 year sentence for Controlled Substance. His earliest release date is 04/01/2004 and his maximum release date is 03/25/2021.” However, no Form USM-17, captioned “Detainer Against Sentenced Prisoner,” was ever lodged. As a result, defendant was never informed of his right to demand a speedy trial on the federal charges.
On May 8, 2002, a federal indictment was returned charging defendant with being a felon in possession of a firearm and possession with the intent to distribute approximately 7.5 grams of crack cocaine. Defendant made his initial appearance on the federal indictment on May 20, 2002, and was arraigned on May 21, 2002, entering not guilty pleas to the counts in the indictment. On May 21, 2002, defendant also signed a waiver of anti-shuttling rights under the Interstate Agreement on Detainers and was returned to state custody.
A jury trial was scheduled for July 2, 2002. However, on July 17, 2002, an order was filed vacating the trial date. On August 29, 2002, defendant filed a motion to dismiss the indictment for failure to return the indictment within thirty days of the date of arrest in violation of
On October 1, 2003, the district court scheduled a hearing on the motion to dismiss for October 29, 2003, and scheduled the trial for November 4, 2003. At the hearing on October 29, 2003, the motion to dismiss was denied, and a memorandum opinion and order was filed on November 4, 2003. On November 10, 2003, the trial was continued by stipulation to January 13, 2004. On January 13, 2004, the court held a pretrial conference at which it was reported that the parties were negotiating a plea. On January 26, 2004, defendant filed a motion for reconsideration of the November 4th order denying his motions to dismiss. On February 6, 2004, the district court entered an order denying the motion for reconsideration.
On April 5, 2004, defendant entered pleas of guilty to Counts 1 and 2 of the indictment pursuant to a plea agreement. On April 14, 2004, defendant was paroled from his state sentence, and was taken into federal custody at that time. On October 5, 2004, defendant was sentenced to a term of imprisonment of 70 months.
First Assignment of Error
Defendant argues in his first assignment of error that the district court erred in
The Speedy Trial Act provides in relevant part:
(j)(1) If the attorney for the Government knows that a person charged with an offense is serving a term of imprisonment in any penal institution, he shall promptly–
(A) undertake to obtain the presence of the prisoner for trial; or
(B) cause a detainer to be filed with the person having custody of the prisoner and request him to so advise the prisoner and to advise the prisoner of his right to demand trial.
(c) The warden, commissioner of corrections, or other official having custody of the prisoner shall promptly inform him of the source and contents of any detainer lodged against him and shall also inform him of his right to make a request for final disposition of the indictment, information, or complaint on which the detainer is based.
In this case, the Michigan Department of Corrections notified the Marshal‘s Service that the previous federal detainer had been lodged against the defendant, and that the defendant was serving a state sentence. However, the Marshal‘s Service neglected to inform the United States Attorney‘s Office of that fact, and as a result, Form USM-17, which contains language requesting the warden to advise the defendant of the pending charges and his right to demand a trial on those charges, was never sent to the state institution. The government concedes that because the Michigan prison officials were never asked to inform defendant that he had the right to request a trial on the federal charges,
The district court correctly held that dismissal of the indictment is not an appropriate remedy for a violation of
The district court also correctly held that dismissal of the indictment is not an available remedy for a violation of the notice provision of the Interstate Agreement on Detainers. See United States v. Lualemaga, 280 F.3d 1260, 1265 (9th Cir. 2002); Walker, 255 F.3d at 524; United States v. Pena-Corea, 165 F.3d 819, 821-22 (11th Cir. 1999); Lara v. Johnson, 141 F.3d 239, 243 (5th Cir. 1998).
As to defendant‘s argument that the district court should have ordered that his federal sentence run concurrently with the state sentence which he had already
Defendant‘s first assignment of error is denied.
Second Assignment of Error
Defendant argues in his second assignment of error that his right to a speedy trial under the Sixth Amendment of the United States Constitution was violated due to the delay in bringing him to trial on the federal charges. In determining whether a defendant‘s right to a speedy trial has been violated, this court reviews questions of law de novo and questions of fact under the clearly erroneous standard. United States v. Smith, 94 F.3d 204, 208 (6th Cir. 1996).
The Sixth Amendment provides, “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial.”
The first factor is a threshold requirement, and if the delay is not uncommonly long, judicial examination ceases. United States v. Schreane, 331 F.3d 548, 553 (6th Cir. 2003). A delay approaching one year is presumptively prejudicial. Doggett, 505 U.S. at 652, n. 1. If the threshold is satisfied, the first factor must be considered along with the remaining three factors in the speedy trial analysis. Id. Since the delay in this case between the filing of federal charges and the district court‘s decision filed on November 4, 2003, denying the motion to dismiss, exceeded one year, we will address the remaining factors.
The second Barker factor focuses on the reason for the delay. Governmental delays motivated by bad faith, harassment, or attempts to seek a tactical advantage weigh heavily against the government, while neutral reasons such as negligence are weighted less heavily, and valid reasons for a delay weigh in favor of the government. Barker, 407 U.S. at 531. Addressing the second factor, the district court noted the government‘s concession that the proper detainer form was not filed against defendant after he was sentenced on the state charges, but further found that defendant was aware of the federal firearm charge pending against him, and that he could have made further inquiries of the state officials about what he could do to expedite the resolution of the federal charges. The record supports the district court‘s conclusion that the government and the defendant shared some fault in the delay of one year in
The third Barker factor, defendant‘s assertion of his speedy trial rights, requires proof by the government that the defendant had knowledge of the federal charges. See United States v. Brown, 169 F.3d 344, 350 (6th Cir. 1999). Where it is shown that the defendant was aware of the charges against him, then this factor weighs heavily against the defendant. See Schreane, 331 F.3d at 557. The district court found that the third factor weighed against defendant because defendant failed to timely assert his right to a speedy trial. The court found that defendant learned of the pending federal complaint on May 29, 2001, but did not file his motion to dismiss on speedy trial grounds until August 29, 2002, fifteen months later. This finding of the district court is not clearly erroneous, and defendant‘s failure to timely assert his right to a trial upon learning of the federal charges weighs against his speedy trial claim.
The final Barker factor requires the defendant to show that “substantial prejudice” has resulted from the delay. Schreane, 331 F.3d at 557. If the government “prosecutes a case with reasonable diligence, a defendant who cannot demonstrate how his defense was prejudiced with specificity will not make out a speedy trial claim no matter how great the ensuing delay.” United States v. Howard, 218 F.3d 556, 564 (6th Cir. 2000). In the absence of particularized trial prejudice, delay attributable to the government‘s negligence “has typically been shockingly long” to warrant a finding of prejudice. Schreane, 331 F.3d at 559 (citing Doggett, 505 U.S. at 657, involving a six year delay). Shorter delays attributable to the government‘s negligence have been held not to give rise to a presumption of prejudice. See id. (delay of thirteen and one-half months attributable to government‘s negligence did not raise a presumption of prejudice).
The district court found that defendant had failed to show any prejudice to his defense resulting from the one-year delay between the filing of federal charges and defendant‘s arraignment on those charges and the further delay of approximately seventeen months between the arraignment and the ruling on the motion to dismiss. The court noted that although defendant was incarcerated pending trial, this was due to the fact that he was serving his state sentence.
Defendant argued before the district court that he was prejudiced because of the loss of an essential witness. He contended that at the time of his arrest on April 27, 2001, he was at a drug house where another man was present selling drugs, and that this man fled the house upon the arrival of the police. Defendant maintained that this man was an essential witness because the man could testify that he was selling drugs at the house, and that defendant was now unable to locate this man. The district court correctly rejected
Defendant also complained that the pendency of the federal charges rendered him ineligible for certain placements and programs in the state prison. The district court correctly concluded that this was not the type of prejudice cognizable under the Sixth Amendment. United States v. White, 985 F.2d 271, 276 (6th Cir. 1993)(prejudice factor relates to delay that causes impairment of the defense, not delay that prevents federal sentence from running concurrently with a previously imposed sentence).
We agree with the determination of the district court that no Sixth Amendment violation occurred in this case. The district court‘s factual findings are not clearly erroneous. Weighing the Barker factors, we conclude that defendant was not denied his constitutional right to a speedy trial. Defendant‘s second assignment of error is denied.
Third Assignment of Error
In his third assignment of error, defendant contends that the provision in paragraph 5 of his plea agreement in which he agreed to waive his right to appeal his conviction or sentence if the court imposed a sentence of less than 87 months is not enforceable because the trial court never specifically addressed him during the plea proceedings to ascertain if he understood that provision. He also argues that the waiver provision is an invalid contract of adhesion. Finally, he argues that since he was sentenced prior to the Supreme Court‘s decision in Booker, the Sentencing Guidelines were viewed as mandatory by the sentencing court, and his case should therefore be remanded for resentencing pursuant to Booker.
The waiver provision contained in paragraph 5 of defendant‘s plea agreement reads as follows:
Defendant‘s waiver of appeal rights. If the court imposes a sentence equal to or less than the maximum sentence described in ¶ 2 of this agreement [87 months], defendant waives any right he may have to appeal his conviction or sentence, including any right under
18 U.S.C. §3742 to appeal on the grounds that the sentence was imposed as a result of an incorrect application of the sentencing guidelines. The parties agree, however, pursuant toRule 11(a)(2) , that defendant Robinson may appeal the court‘s ruling on two specific issues: (1) Whether Defendant Robinson received adequate notice pursuant to the Interstate Agreement on Detainers and (2) whether the Sixth Amendment‘s Speedy Trial Clause was violated.
Defendant first argues that the district court did not comply with the provisions of
In United States v. Murdock, 398 F.3d 491 (6th Cir. 2005), this court held that plain error occurred where the district court failed to address the defendant during the plea proceedings to ascertain whether the defendant was aware of and understood the appellate waiver provision in his plea agreement. In Murdock, the prosecutor, in summarizing the important provisions of the plea agreement, did not refer to the appellate waiver provision, and the district court failed to determine whether the defendant had discussed the waiver provision with his attorney. Id. at 497.
However, where the defendant states that he had reviewed the plea agreement with his attorney and that his attorney had explained the agreement, or where the prosecutor refers to the waiver provision in summarizing the terms of the plea agreement, this may be sufficient to insure that the waiver was knowing and voluntary. Id. at 497-98. See also United States v. Sharp, 442 F.3d 946 (6th Cir. 2006)(upholding plea where prosecutor summarized appellate waiver provision, and defendant stated in court that he had read the plea agreement, that he understood its terms, and that he had discussed the agreement with his attorney); United States v. Wilson, 438 F.3d 672, 674 (6th Cir. 2006)(explanation of the appellate waiver provision by prosecutor in summary satisfied
In the instant case, the district court asked defendant whether his attorney had explained the plea agreement that he signed and all of the provisions in it, and defendant responded, “Yes, Your Honor.” The prosecutor summarized the appellate waiver provision, stating:
Your Honor, I would like to point to one special provision regarding the defendant‘s waiver of his appellate rights. In this particular agreement, the defendant does agree to waive his appeal rights as a conditional waiver, Your Honor. The defendant, Mr. Robinson, may appeal the Court‘s ruling on two specific issues; on whether defendant Robinson received adequate notice pursuant to the Interstate Agreement on Detainers. And, two, whether the Sixth Amendment speedy trial clause was violated. Those are the only two issues the defendant has preserved for appellate purposes, Your Honor.
The district court then asked the defendant, “Is this the agreement as you understand it?” to which the defendant replied, “Yes, Your Honor.” Thus, the substitutes for
Defendant also argues that the waiver of appellate rights in his plea agreement was invalid as a contract of adhesion. As a general matter, a “waiver
Here, defendant was free to reject the government‘s plea offer and proceed to trial. Instead, he negotiated a plea agreement which actually preserved his right to appeal two legal issues. The appeal waiver in the plea agreement was not an unenforceable adhesion contract.
Defendant also argues that the appeal waiver provision should not bar his right to challenge his sentence under United States v. Booker, and that his case should be remanded to permit the trial judge to consider the imposition of a sentence outside the Guidelines, applying the statutory sentencing factors in
Under paragraph 5 of the plea agreement in this case, defendant agreed to waive his right to appeal his conviction or sentence if the court imposed a sentence equal to or less than 87 months, with the exception of his arguments that he received inadequate notice of pending charges pursuant to the Interstate Agreement on Detainers and that his Sixth Amendment right to a speedy trial was violated. The court imposed a sentence of 70 months, thereby triggering the waiver of appeal provision. Although the defendant did not expressly agree to be sentenced under the Guidelines, this fact does not mandate a remand for resentencing. See Dillard, 438 F.3d at 685 (absence of express provision agreeing to Guidelines sentence “is of questionable relevance to the Bradley holding.“).
The waiver of appeal rights in defendant‘s plea agreement is valid, and, in light of Bradley, no remand for resentencing is required. Defendant‘s third assignment of error is denied.
Conclusion
In accordance with the foregoing, the judgment and sentence imposed by the district court are AFFIRMED.
JAMES L. GRAHAM
UNITED STATES DISTRICT JUDGE