Appeal from the United States District Court for the District of Nebraska.
The opinion of the court was delivered by: Smith, Circuit Judge.
Submitted: March 11, 2010
Before SMITH, BENTON, and SHEPHERD, Circuit Judges.
On August 20, 2008, the government charged Juan Orozco-Osbaldo with conspiracy to possess and distribute at least 50 grams of methamphetamine, in violation of 21 U.S.C. § 846, four counts of distribution of methamphetamine, in violation of 21 U.S.C. § 841, and forfeiture pursuant to 21 U.S.C. § 853. On April 19, 2009, Orozco-Osbaldo filed a motion to dismiss for violation of the Speedy Trial Act*fn1.
The district court*fn2 denied this motion. He then pleaded guilty to the conspiracy count, three distribution counts, and the forfeiture count*fn3 . The court then imposed a 235-month sentence. On appeal, Orozco-Osbaldo contends that the district court abused its discretion in denying his motion to dismiss for violation of the Speedy Trial Act. Orozco-Osbaldo also maintains that the court lacked a sufficient factual basis to accept his guilty plea as to the conspiracy count. Finally, Orozco-Osbaldo argues that the district court improperly considered and relied upon unrecorded proceedings to support the acceptance of his guilty pleas. We find no error and affirm.
On August 20, 2008, the government filed an indictment charging Orozco-Osbaldo with conspiracy to possess and distribute at least 50 grams of methamphetamine, in violation of § 846, four counts of distribution of methamphetamine, in violation of § 841, and forfeiture pursuant § 853. On September 9, 2008, Orozco-Osbaldo filed a motion to continue, which the district court granted on September 19, 2008, and trial was continued until November 17, 2008. The court excluded the time from the date of the order until the new trial date from the speedy trial calculation. On October 31, 2008, the government filed a motion seeking to join Orozco-Osbaldo with five other defendants, which Orozco-Osbaldo did not resist. On February 6, 2009, the court granted the motion for joinder in part and set trial for March 16, 2009 (Victor Briones-Hernandez and Juan Correa-Gutierrez were joined with Orozco-Osbaldo for trial). On February 26, 2009, Briones-Hernandez filed a motion to continue the March trial date. The court granted this motion on March 4, 2009. At the same time, the court set the new trial date for April 20, 2009. The court noted that the order affected all three cases and excluded the time between March 16, 2009, and April 20, 2009, from the speedy trial calculation for each defendant. On March 13, 2009, the government filed a motion to take a deposition. The court denied that motion on March 24, 2009. The court also excluded this time from the speedy trial calculation.
Orozco-Osbaldo filed his motion to dismiss for violation of the Speedy Trial Act on April 19, 2009. The court denied this motion the next day. Orozco-Osbaldo proceeded to jury trial on April 21, 2009. After an off the record discussion between the district court, Orozco-Osbaldo and the attorneys for the parties, the court accepted the guilty plea and sentenced Orozco-Osbaldo to 235 months' imprisonment.
On appeal, Orozco-Osbaldo maintains the court erred in denying his motion because it should not have excluded the period during which the court considered the motion for joinder from the speedy trial calculation. Orozco-Osbaldo contends that the district court took too long in considering this motion. Orozco-Osbaldo argues that once these days are included, the Speedy Trial Act is violated.
"In the context of Speedy Trial Act rulings, we review a district court's legal conclusions de novo, its factual findings for clear error, and its ultimate determination for an abuse of discretion." United States v. Lucas, 499 F.3d 769, 782 (8th Cir. 2007).
We are unpersuaded by Orozco-Osbaldo's arguments. The Speedy Trial Act provides that a trial shall "commence within seventy days from the filing date (and making public) of the . . . indictment, or from the date the defendant has appeared before a judicial officer of the court in which such charge is pending, whichever date last occurs." 18 U.S.C. § 3161(c)(1). However, the Speedy Trial Act describes "periods of delay" that "shall be excluded . . . in computing the time within which the trial of any such offense must commence . . . ." Id. § 3161(h).
In this case, the district court properly excluded the period during which it considered the motion for joinder as a "period of delay" pursuant to § 3161(h)(1)(D), which excludes from the speedy trial calculation "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." Orozco-Osbaldo cites no authority to support his argument that the district court took too long in considering the motion for joinder other than to contend that it was unreasonable. A plain reading of the statute disposes of his argument because while the statute explicitly places time limits on certain*fn4 "periods of delay," it does not include delay in the prompt disposition of ...