PHILLIPS, Circuit Judge.
On April 12, 2012, a jury convicted James Black of conspiring to distribute cocaine, 21 U.S.C. §§ 841(a)(1), 846; using a telephone in committing or in causing or facilitating the conspiracy, id. § 843(b); and possessing with intent to distribute cocaine, id. § 841(a)(1). The convictions stemmed from charges made in the government's Fifth Superseding Indictment in a longstanding, multi-defendant case that began in November 2007. Between the First Superseding Indictment (in which Black was first charged) and the jury trial, the government filed another four superseding indictments and twice dismissed the case — once to pursue an interlocutory appeal and once to avoid dismissal of the cocaine-conspiracy charge. After the jury's verdict, the district court sentenced Black to 30 years' imprisonment.
Black appeals, arguing that the district court plainly erred in calculating the United States Sentencing Guidelines advisory range at 360 months' imprisonment to life. Black also argues that the government's 23-month delay in bringing him to trial — the total delay between the first two indictments that charged Black and their later dismissal, together with the delay between the filing of the second-to-last indictment and Black's trial — denied him his Sixth Amendment right to a speedy trial. Exercising jurisdiction under 28 U.S.C. § 1291, we conclude that the government didn't violate Black's constitutional right to a speedy trial. But because we conclude that the district court plainly erred in calculating Black's advisory Guidelines range, we vacate Black's sentence and remand for resentencing.
Because this appeal involves Black's Sixth Amendment right to a speedy trial,
A. Procedural History
1. December 19, 2007-July 30, 2008: First Superseding Indictment (7 months, 11 days)
The government didn't charge Black in its original indictment, filed on November 28, 2007. But on December 19, 2007, the government secured a First Superseding Indictment, charging Black and 8 other defendants with 48 criminal offenses related to their cocaine-distribution network.
On March 9, relying on the Fourth, Fifth, and Fourteenth Amendments, Black moved to suppress statements that he had made to law-enforcement officers and statements that he had made during wiretapped telephone conversations with other members of the cocaine-distribution network.
On May 2, the government moved for a James hearing to determine the admissibility of coconspirator statements under Fed. R. Evid. 801(d)(2)(E). See generally United States v. James, 590 F.2d 575 (5th Cir. 1979). On May 16, the court set a change-of-plea hearing for Black on May 21. On May 19, one of Black's codefendants, Michael Biglow, filed a motion to suppress "evidence found in his home, arguing that authorities lacked probable cause to search his residence." United States v. Biglow, 562 F.3d 1272, 1275 (10th Cir. 2009). Also on May 19, the court reset Black's change-of-plea hearing for June 2. On June 2, Black pleaded guilty to Counts 1, 14, and 15 of the First Superseding Indictment. The court set Black's sentencing for August 18.
On June 6, the court granted Biglow's motion to suppress. On June 9, the government filed an interlocutory appeal of the court's order granting Biglow's motion to suppress. Because of this interlocutory appeal, the government simultaneously moved to continue the trial or, alternatively, to dismiss the case without prejudice. The court granted the government's motion to dismiss the charges against five defendants without prejudice, but not the charges against Black, presumably because Black had already pleaded guilty. On July 1, Black's attorney filed a motion to withdraw as counsel, which the court denied after a hearing on July 14. On July 21, Black moved to withdraw his guilty
Thus, a total of 7 months and 11 days elapsed between December 19, 2007 (when the government first charged Black under the First Superseding Indictment), and July 30, 2008 (when the court dismissed the charges against Black without prejudice).
2. May 13, 2009-November 4, 2009: Second Superseding Indictment (5 months, 22 days)
On May 13, 2009, having secured a reversal of the district court's order granting Biglow's motion to suppress, the government filed a Second Superseding Indictment. The Second Superseding Indictment charged 17 defendants with 131 criminal offenses, an expansion of the First Superseding Indictment's charging 9 defendants with 48 crimes.
On June 14, Black was arrested. At his arraignment the next day, the court ordered Black temporarily detained and set a detention hearing for June 17. The court filed an Order of Detention Pending Trial on June 18. On June 30, the court vacated the August 11 trial setting. By July 15, the court had arraigned all of the defendants, appointed them counsel, and provided them with detention hearings.
Between May 28 and August 14, the defendants filed several substantive motions, including two motions to suppress, a motion for a James hearing, and a motion for a bill of particulars. On July 23, Black filed a motion requesting drug, alcohol, and psychological evaluations. On August 14, Black filed a motion to sever his trial from that of his codefendants, a motion to join in over ten of his codefendants' substantive motions (including the motion for a James hearing), and a motion to suppress statements that he had made to law enforcement officers and statements that he had made during recorded telephone conversations with other members of the cocaine-distribution network.
On September 15, the court scheduled a hearing for September 22 to hear arguments on Black's motion to suppress. After a September 17 hearing on a number of the defendants' substantive motions, the court issued an order denying the majority of the motions, but the court didn't address Black's motion for evaluations. Although on September 22 the court heard
In an October 29 order, the court granted the defendants' (including Black's) motions to exclude coconspirator statements, having determined that the government had "failed to demonstrate by a preponderance of evidence that defendants were engaged in a ... conspiracy."
On October 30, four days before trial, the government moved to dismiss the Second Superseding Indictment without prejudice. The government explained its eve-of-trial motion to dismiss as follows:
R. vol. 1 at 449-50 (footnote omitted). The government further explained:
Id. at 451.
On November 2, Black responded to the government's motion, objecting to the proposed dismissal. Black noted "that the charging, dismissing and recharging of this case and the related arresting, releasing and re-arresting of the defendant" was
Id. at 455-56.
On November 4, the court granted the government's motion to dismiss. The court concluded that the government had no ill purpose in seeking dismissal. Rather, the court concluded that "the dismissal is sought so that the government may either decide to continue with one large conspiracy or to break up the conspiracy count into smaller conspiracies." R. suppl. vol. 1 at 205. The court expressed some misgivings about the situation, however, noting that it was "not necessarily pleased with continuing the case." Id. Ultimately, though, the court found "that the government's reasons in seeking a dismissal, without prejudice, in this case are valid and the government is not seeking to harass defendants by moving to dismiss the indictment." Id. at 206.
Thus, a total of 5 months and 22 days elapsed between May 13, 2009 (when the government charged Black under the Second Superseding Indictment), and November 4, 2009 (when the court dismissed the charges against Black without prejudice).
3. May 25, 2011-April 3, 2012: Fourth & Fifth Superseding Indictments (10 months, 9 days)
On May 25, 2011, the government filed a narrowed Fourth Superseding Indictment,
On September 7, Black moved to dismiss the Fourth Superseding Indictment based on the government's alleged violation of his constitutional speedy-trial right.
On September 14, the government filed a Fifth Superseding Indictment, charging 4 defendants with 35 criminal offenses.
On October 13, the court vacated the October 17 hearing on Black's motion to dismiss and set Black's trial for December 20. On November 1, the court set Reed's requested Daubert hearing for December 13. The court also advised the parties that it would hear argument on Black's motion for a James hearing at the December 13 hearing.
On November 3, the court denied Black's motion to dismiss, which he'd based on the government's alleged violation of his Sixth Amendment speedy-trial right. Primarily citing Black's failure to show how the delay in going to trial had prejudiced his defense, the court concluded that Black "has not made out a Sixth Amendment speedy trial violation." R. vol. 1 at 581.
Near the end of the January 10 hearing, the court asked the parties about possibly continuing the trial to ensure that they had sufficient time to file post-hearing motions and arguments on the James and Daubert motions. The court also wanted to ensure itself time to resolve the outstanding motions while still leaving the parties sufficient time to prepare for trial. Although the court was uneasy about the timeline, it noted that if any of the defendants wanted to go to trial on January 31 as planned, it would "figure out some way to get it done." R. vol. 3 at 334. The court granted a brief recess to allow the defendants time to decide whether they desired a continuance or wanted to assert their speedy-trial right. After the recess, Black alone objected to the continuance, his lawyer this time stating as follows:
Id. at 335. Notwithstanding Black's objection, the court reset the trial for April 3.
Between mid-January and mid-February, the defendants and the government filed motions addressing the James and Daubert motions. On February 22, the court partly granted Black's (and the other defendants') James motion. Specifically, the court limited who qualified as coconspirators. In doing so, the court acknowledged that its ruling created "a practical problem" for the defendants' trial. R. vol. 1 at 615. Because only two of the four defendants were charged with conspiring to distribute cocaine (and those two, Black and Biglow, were charged in separate conspiracy counts), the court faced a problem of explaining to the jury "how to consider, or not consider, the [coconspirator statements] as to each defendant." Id. The court directed the government to propose by March 2 its solution to this problem "in the form of an instruction or instructions which will ensure that the jurors will properly consider the calls." Id. Likewise, the court gave the defendants until March 12 to respond to the government's proposed jury instructions. Offering its own possible solution, the court advised that "the government may wish to consider severance of [the defendants not facing conspiracy charges]." Id. Despite the court's directions, the government failed to submit any jury instructions by the March 2 deadline.
On March 12, despite having received no government-proposed jury instructions, Biglow still filed his own proposed jury instructions
On March 15, the court denied the defendants' motions for a Daubert hearing. On March 16, Reed and Biglow responded to the government's proposed jury instructions. On March 19, the court scheduled a status conference for March 28. On March 21, Black moved to join three of his codefendants' filings: Biglow's motion to sever, Biglow's proposed jury instructions, and Reed's response to the government's proposed jury instructions. On March 25, the government responded to the motions to sever.
On March 26, the court partially granted and denied the defendants' motions to sever.
After a March 28 status conference, Biglow's and Black's trial began on April 3. On April 12, a jury found Black guilty of all the charges against him.
Thus, a total of 10 months and 9 days elapsed between May 25, 2011 (when the government charged Black under the Fourth Superseding Indictment), and April 3, 2012 (when Black's jury trial began).
On April 30, 2015, the court sentenced Black. Under Black's Amended Presentence Investigation Report (PSR), the probation officer recommended sentencing Black as a career-offender under U.S.S.G. § 4B1.1(b). Treating his instant cocaine-conspiracy conviction as punishable by life imprisonment, the PSR calculated Black's total offense level as 37 and his criminal history category as VI.
At Black's April 30 sentencing hearing, the court sentenced Black to 360 months' imprisonment. At the conclusion of the hearing, the court said:
R. vol. 3 at 1460. Black timely appealed.
On appeal, Black argues that the district court erroneously calculated his advisory Guidelines range and that the government violated his Sixth Amendment right to a speedy trial. We conclude that the government didn't violate Black's constitutional right to a speedy trial, but we vacate Black's sentence and remand for resentencing because the district court plainly erred in calculating Black's advisory Guidelines range.
A. Sentencing Error
The parties agree that the district court plainly erred in calculating Black's advisory Guidelines range and that we should remand for resentencing. While we agree, we briefly summarize the error below.
Black argues that the district court erroneously calculated his advisory Guidelines range at 360 months' imprisonment to life. Specifically, Black argues that the district court and the PSR incorrectly selected a total offense level of 37 under U.S.S.G. § 4B1.1(b)(1). Because Black failed to object to this alleged error in the district court, we review the sentence for plain error. United States v. Rosales-Miranda, 755 F.3d 1253, 1257 (10th Cir. 2014). Thus, Black must demonstrate "that (1) the district court erred; (2) the error was plain; (3) the error affects the defendant's substantial rights; and (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings." United States v. Sabillon-Umana, 772 F.3d 1328, 1333 (10th Cir. 2014).
The PSR and district court erred by selecting a total offense level of 37 under U.S.S.G. § 4B1.1(b)(1).
When a district court plainly errs in this fashion, we presume the defendant meets the third and fourth elements of the plain-error standard. See Sabillon-Umana, 772 F.3d at 1334. The government concedes error and doesn't attempt to rebut this presumption. We therefore remand for resentencing.
B. Violation of Black's Sixth Amendment Right to a Speedy Trial
Black also argues on appeal that he was denied his Sixth Amendment right to a speedy trial. We disagree, concluding that despite the lengthy delay in the government's prosecution of the cocaine conspiracy, Black suffered no prejudice and failed to promptly and forcefully assert his speedy-trial right.
Under the Sixth Amendment, "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial." U.S. Const. amend. VI. "[A]lthough the [speedy-trial] right is somewhat amorphous, the remedy is severe: dismissal of the indictment" with prejudice. United States v. Margheim, 770 F.3d 1312, 1325 (10th Cir. 2014) (first alteration in original) (quoting United States v. Seltzer, 595 F.3d 1170, 1175 (10th Cir. 2010)); see United States v. Toombs, 574 F.3d 1262, 1274 (10th Cir. 2009) ("[W]e also consider Toombs's Sixth Amendment speedy trial claim, which, if successful, would require the district court to dismiss the case with prejudice."). "We review [a defendant's] Sixth Amendment claim de novo, but accept the district court's factual determinations unless clear error is shown." United States v. Gould, 672 F.3d 930, 935 (10th Cir. 2012).
In determining whether a trial delay
1. Length of Delay
Our analysis under the first factor is a "double inquiry." Id. "First, simply to trigger a speedy trial analysis, an accused must allege that the interval between accusation and trial has crossed the threshold dividing ordinary from presumptively
The constitutional right to a speedy trial "attaches when the defendant is arrested or indicted, whichever comes first." Id. (quoting Jackson v. Ray, 390 F.3d 1254, 1261 (10th Cir. 2004)). The endpoint of the constitutional speedy-trial period is the beginning of the defendant's trial. See United States v. Larson, 627 F.3d 1198, 1209 (10th Cir. 2010) (calculating delay as 31 months where the defendant "was indicted on August 16, 2006, but his trial did not commence until March 23, 2009"). Importantly here, "[o]nce charges are dismissed, the speedy trial guarantee is no longer applicable." United States v. MacDonald, 456 U.S. 1, 8, 102 S.Ct. 1497, 71 L.Ed.2d 696 (1982).
Under the first part of our required double inquiry, we agree with the parties that a delay of over 23 months is sufficient to trigger an analysis under the remaining Barker factors. See Margheim, 770 F.3d at 1326 (concluding that a 23-month delay was presumptively prejudicial, thereby triggering an analysis under the Barker factors). Under the second part of our double inquiry, we conclude that the length-of-the-delay factor weighs heavily in Black's favor. See id. (concluding that a 23-month delay meant that the first Barker factor "weigh[ed] entirely" in the defendant's favor). Because a one-year delay triggers a Barker analysis, see United States v. Batie, 433 F.3d 1287, 1290 (10th Cir. 2006) ("Delays approaching one year generally satisfy the requirement of presumptive prejudice."), the nearly two-year delay that Black experienced unquestionably favors Black.
2. Reason for the Delay
"It is incumbent upon the government to present acceptable reasons for the delay." Margheim, 770 F.3d at 1326. "The reason for a delay weighs against the government in proportion to the degree to which the
We conclude that this factor doesn't weigh against the government. In doing so, we follow our approach above and divide the reason-for-the-delay discussion into the three periods during which an indictment was pending against Black.
i. December 19, 2007-July 30, 2008: First Superseding Indictment
(7 months, 11 days)
The bulk of the delay during the first period of Black's indictment — the time between the government's filing of the First Superseding Indictment and the court's dismissal of the First Superseding Indictment almost seven-and-a-half months later — is attributable to Black. That said, Black argues that the 50 days between his indictment (December 19, 2007) and his motion to continue his trial (February 7, 2008) are attributable to the government. In response, the government notes that during that interval it arrested and arraigned eight other defendants. "Under these circumstances," the government argues, "no `delay' occurred in any sense of the word because the case was being expeditiously and efficiently processed by the government and the district court in conformity with regular procedures." Appellee's Resp. Br. at 31. Even if we consider as a delay the 50 days between Black's indictment and his motion to continue, the government argues that the delay was "valid and justified in light of the manifest necessity of arresting the defendants and arraigning them for a joint trial." Id.
Although the government was busy pursuing multiple defendants during this 50-day period, the delay resulting from the government's need to arrest and arraign multiple defendants in a multi-defendant case wasn't Black's fault. Black made no motion delaying his trial until February 7, 2008. Between December 19, 2007, and February 7, 2008, Black can't be said to have delayed his otherwise speedy trial. That said, the government is correct that its delay was justified given the nature of the case and the necessity of arresting and arraigning the remaining defendants. Black seems to agree, noting that this 50-day delay should weigh against the government, "albeit not strongly." Appellant's Opening Br. at 33. But because the government was completely justified in the 50-day delay between December 19, 2007, and February 7, 2008, we don't weigh that period against the government at all. See Tranakos, 911 F.2d at 1428 ("Delay due to the unavailability of a necessary individual is justified, so the delay caused by [a] codefendant[`s] ... unavailability shall not be weighed against the government.").
Black concedes that the remainder of the first period's delays can't be counted against the government. Because Black caused these delays by moving to suppress evidence, withdrawing his motion to suppress pending plea negotiations, pleading guilty, and withdrawing his guilty plea, we agree. After allowing Black to withdraw his guilty plea, the court immediately dismissed the charges against Black without prejudice.
Of this 7-month, 11-day period, then, the government isn't responsible for any delay,
ii. May 13, 2009-November 4, 2009: Second Superseding Indictment
(5 months, 22 days)
Black admits that the bulk of the nearly six-month delay during this second period is attributable to him. We agree. Between July 23, 2009 (when Black filed a motion for drug, alcohol, and psychological evaluations) and October 30 (when the government filed a motion to continue or, alternatively, to dismiss the charges in the Second Superseding Indictment without prejudice) the court entertained numerous, substantive motions from all of the defendants, including motions that Black made or joined. Thus, we wouldn't typically weigh this time against the government.
Still, despite conceding that much of this second-period delay resulted from his motions, Black argues that the delay should still be counted against the government.
Between the First Superseding Indictment and the Fifth Superseding Indictment, the government's conspiracy charges varied widely. The First Superseding Indictment charged eight defendants with conspiring to distribute over five kilograms of cocaine. The Second Superseding Indictment expanded the conspiracy count, charging 16 defendants with conspiring to distribute over five kilograms of cocaine. When the district court concluded, after a James hearing, that the government had insufficient evidence of a conspiracy among all of the defendants — a strong sign that the government had overcharged the conspiracy in its Second Superseding Indictment — the government retreated by requesting that the court dismiss the Second Superseding Indictment. After the dismissal, the government filed a Third Superseding Indictment against two defendants rather than 16, neither of whom were Black, charging both with conspiring to distribute cocaine.
Even after all of that, the government obtained a Fifth Superseding Indictment, adding one defendant, whom the government charged under a separate conspiracy count, with conspiring to distribute at least 500 grams of cocaine. Thus, the charged conspiracy ultimately grew from 8 defendants to 16, then shrank from 16 to 4. The charged cocaine weight also swung between extremes — initially, the government charged Black with conspiring to distribute five kilograms of cocaine, but later reduced it to a detectable amount of cocaine.
Because the government couldn't sustain its broad conspiracy count charged in the Second Superseding Indictment, we are inclined to weigh the second Barker factor slightly against the government for this period, or at least weigh the factor less forcefully against Black, whose motions largely responded to the overcharging. But Black didn't just file motions related to the conspiracy charge. He sponsored or joined several motions that had nothing to do with the government's prosecution of the conspiracy charge. Specifically, on July 23, 2009, Black filed a motion requesting drug, alcohol, and psychological evaluations. On August 14, while the evaluations motion was still pending, Black filed a motion to suppress statements he had made to law-enforcement officers and statements he had made during intercepted phone conversations. Neither the motion for the evaluations nor the motion to suppress mentioned or involved the Second Superseding Indictment's conspiracy charge. On September 15, the court set a hearing on Black's motion to suppress for September 22, but the record doesn't reveal
This leaves us with two other delays unaccounted for during this second period. The government hasn't accounted for either. First, the government hasn't explained the delay between the day that it charged Black under the Second Superseding Indictment (May 13, 2009) and the day that Black filed his first substantive motion (July 23, 2009). Second, the government has failed to explain the delay between its motion to continue or, alternatively, to dismiss the Second Superseding Indictment without prejudice (October 30, 2009) and the court's ultimate dismissal (November 4, 2009). We are clear on this point: The burden to account for delays lies squarely with the government. See Jackson, 390 F.3d at 1261 ("The Supreme Court places the burden on the state to provide an inculpable explanation for delays in speedy trial claims," (citing Barker, 407 U.S. at 531, 92 S.Ct. 2182)). Because the government hasn't carried its burden with respect to these two delays, which account for over two months of elapsed time, we weigh this over-two-month delay moderately against the government. See id. at 1262 ("[W]hen the petitioner does not argue that the state deliberately delayed his trial and the state does not argue that the petitioner caused the delay, ... courts must conclude negligence on the part of the government and weigh the second Barker factor moderately against the state.").
Thus, we conclude that, of this 5-month, 22-day period, the government is responsible for more than two months of delay,
iii. May 25, 2011-April 3, 2012: Fourth & Fifth Superseding Indictments
(10 months, 9 days)
Black argues that the government is responsible for about six months of delay between the day the government filed its Fourth Superseding Indictment and Black's trial.
Black first argues that the government is responsible for the two-and-a-half-month delay between May 25, 2011 (when the government filed the Fourth Superseding Indictment), and August 8, 2011 (when Black was arrested). Specifically, Black argues that "if the prosecution was negligent in its efforts to bring Mr. Black into court, the time between indictment and his arrest counts against it." Appellant's Opening Br. at 37. He then argues that "[t]he prosecution... made no effort to show that Mr. Black was evading arrest and that, if he was, it ... made diligent efforts to arrest him." Id. The government responds by arguing that, because Black didn't assert this particular argument in his motion to
Black filed his motion to dismiss on Sixth Amendment grounds about a month after his August 8, 2011 arrest. Yet Black didn't argue in his motion that the government was negligent in arresting him. In fact, Black never argued that the time between the government's filing of its Fourth Superseding Indictment and his arrest counted against the government at all. Of course, that wasn't his burden to bear. Again, the burden is on the government to provide explanations for delays. Jackson, 390 F.3d at 1261. The government carried its burden in the district court, however, and Black failed to respond with the argument he now attempts to make. In its response to Black's motion to dismiss, the government argued as follows:
R. vol. 1 at 525 (emphasis added).
Black never responded to this argument by noting that the government was negligent in arresting him or that the government's characterization of the facts was incorrect. He can't do so now. Were we to address Black's argument, we would have to answer factual questions for the first time on appeal, such as whether the government was negligent in arresting Black, which we won't do. See Gould, 672 F.3d at 938 (refusing to address an argument for the first time on appeal because it presented "a fact question"). Thus, we don't count the delay between May 25, 2011, and August 8, 2011, against the government. See id. (noting that, "[g]iven the arguments presented before the district court, [the defendant] is now precluded" from making brand-new arguments about the cause of the government's delay). In fact, because Black never responded to the government's argument that he failed to turn himself in when summoned before the district court, any argument he attempts to make on appeal is forfeited.
Although Black argues that the government bears responsibility for the majority of the delay during this period, he accepts responsibility for delays caused by his own motions. On September 7, 2011, Black filed a motion to dismiss the Fourth Superseding Indictment for the government's violation of his speedy-trial right and a motion for a James hearing. Black properly concedes that the time between September 7 and November 3, the day that the court denied his motion to dismiss, is properly counted against him. Black also accepts responsibility for the delay between his September 7 motion for a James hearing and the government's December 4 motion
Although Black accepts responsibility for the delays related to his James motion, he argues that the government is responsible for the delay from December 4, 2011, the day the government moved to continue the December 13 James/Daubert hearing, until January 10, 2012, the day of the rescheduled hearing, because the government moved to continue the original hearing.
At the rescheduled motions hearing on January 10, 2012, the court suggested that a continuance might be appropriate to allow sufficient time for all of the parties to argue their James and Daubert motions. Over Black's "pro forma objection," the court temporarily reset the trial for April 3. It is difficult to assign blame for this delay because the court sponsored the continuance. But given Black's objection to the continuance, we must count this time against the government. The government argues that while Black objected to the continuance, his objection was weak and was made only to remain consistent with his earlier-denied motion to dismiss on speedy-trial grounds. Although the objection may well have been weak — an argument we address in our analysis of the third Barker factor — Black did object. So we count the period between January 10 and April 3 against the government.
We acknowledge, however, that between January 10 and April 3, Black filed James and Daubert motions, which stemmed from the January 10 hearing. Because Black filed these motions on the day that the trial was originally supposed to begin (January 31, 2012), we are tempted to agree with the government that Black benefited
We've now allocated responsibility for all of the delay in this third period except for the time between August 8, 2011 (Black's arrest), and September 7, 2011 (the day before Black moved to dismiss the Fourth Superseding Indictment). As with the remaining delay in the second period above, because the government bears the burden of providing inculpable explanations for each delay and hasn't explained this one-month delay, we count this period moderately against the government. See Jackson, 390 F.3d at 1262 ("[W]hen the petitioner does not argue that the state deliberately delayed his trial and the state does not argue that the petitioner caused the delay, ... courts must conclude negligence on the part of the government and weigh the second Barker factor moderately against the state.").
Given the above, we conclude that of the 10-month, 9-day delay during this period, Black was responsible for a little less than three months,
iv. Second-Factor Conclusion
Having assigned responsibility for each delay to either Black or the government, we conclude that the second Barker factor, the reason for the delay, doesn't weigh against the government. Of the 23-month delay in bringing Black to trial, we conclude that the government was responsible for about 7 months of delay. Black, on the other hand, was responsible for about 12 months of delay.
We've now numerically assessed the reason-for-the-delay factor. But "in determining how heavily the delay weighs against the government, we must also assess the cause of the delay." Gould, 672 F.3d at 937. Although Black is responsible for more of the delay than the government in our case, we address the next step in our analysis. Sometimes the government and the defendant are each responsible for substantial delays. In such cases, even if the defendant is responsible for a majority of the delay, we could weigh the second Barker factor against the government if the government delayed the trial to gain an advantage over the defendant or to deprive the defendant of his ability to defend himself at trial. See Batie, 433 F.3d at 1291 ("A deliberate attempt to delay a trial in order to secure a strategic advantage will weigh heavily against the government, while valid reasons will justify a delay."). In other words, the second Barker factor isn't purely an arithmetic exercise where the party responsible for less of the delay prevails under the factor. The root cause of the delay is equally important.
In Gould, for example, we weighed the second Barker factor in favor of a defendant, "but not heavily," because while the government was responsible for a majority of the delay, it didn't purposefully cause the delay. Gould, 672 F.3d at 937-38. In his opening brief, Black similarly acknowledges that "[t]here was no claim here of purposeful delay." Appellant's Opening Br. at 30. We agree with Black. So, both numerically and otherwise, the second Barker factor doesn't weigh against the government at all.
3. Defendant's Assertion of His Right
Under the third Barker factor, we look to "whether the defendant has actively asserted his right to a speedy trial." Batie, 433 F.3d at 1291. While asserting the right at any time is meaningful to our analysis, "[w]e may weigh the frequency and force of the objections." United States v. Latimer, 511 F.2d 498, 501 (10th Cir. 1975) (citing Barker, 407 U.S. at 529, 92 S.Ct. 2182). The third Barker factor weighs against a defendant who weakly asserts his speedy-trial right long after he could have, but the factor weighs in favor of a defendant who early, frequently, and forcefully asserts his right. Compare Seltzer, 595 F.3d at 1179 (finding that the third factor weighed in favor of a defendant who, without the assistance of counsel, first asserted his speedy-trial right about six months after his indictment, noting that the defendant's "prompt and repeated requests" for a speedy trial "put both the district court and the government on notice that the defendant wished to proceed to a prompt resolution of his case"), with Margheim, 770 F.3d at 1328 (finding that the third factor weighed against a defendant when the defendant filed a motion to dismiss 19 months after the indictment, noting that "it is difficult to overlook how late [the defendant's] motions to dismiss the indictment appear on the pretrial timeline"). We conclude that this factor weighs heavily against Black.
Black didn't promptly assert his speedy-trial right. In fact, Black first asserted his speedy-trial right in his September 7, 2011 motion to dismiss the Fourth Superseding
Even when Black asserted his right, the assertions weren't particularly strong. Although Black forcefully moved to dismiss the Fourth Superseding Indictment, his later actions sapped the strength of this original objection. See Tranakos, 911 F.2d at 1429 ("We are unimpressed by a defendant who moves for a dismissal on speedy trial grounds when his other conduct indicates a contrary desire."). At a December 12, 2011 hearing on the government's motion to continue Black's trial, Black's counsel objected to the continuance "simply to remain consistent with our previous motion on [the] speedy trial issue and to preserve Mr. Black's standing if he has to appeal that at some other time." R. suppl. vol. 2 at 12-13. We find it hard to accord this assertion of his speedy-trial right much weight. But even this assertion of his speedy-trial right seems strong next to Black's next assertion.
At a motions hearing on January 10, 2012, Black was the only defendant to object to the court's proposed continuance. We reproduce the objection here:
R. vol. 3 at 335. This assertion of Black's speedy-trial right is especially weak. Black admitted he was solely objecting to a continuance to look consistent on appeal, not because he felt his right to a speedy trial had actually been violated at that point. He introduced a "pro forma objection," which Barker itself tells us isn't worth much in the speedy-trial calculus. Barker, 407 U.S. at 529, 92 S.Ct. 2182 (noting that considering the assertion-of-right factor "allow[s] a court to weigh the frequency and force of the objections as opposed to attaching significant weight to a purely pro forma objection"). Further, Black's pro forma objection followed reassurances from the district court that it would try Black earlier if requested. See R. vol. 3 at 334 ("But if any of you want a trial on the 31st, I'll figure out some way to get it done."). But when the district court overruled Black's pro forma objection, Black didn't press the matter. In short, the pro forma objection that Black hoped would help his case on appeal has in fact weakened it.
We conclude that the third Barker factor weighs heavily against Black. He failed to promptly assert his speedy-trial right, and his late assertions are particularly weak.
4. Prejudice to the Defendant
"The individual claiming the Sixth Amendment violation has the burden of showing prejudice." Seltzer, 595 F.3d at 1179 (quoting Toombs, 574 F.3d at 1275). Even though we may conclude that a delay is presumptively prejudicial under the first
To his credit, Black doesn't assert prejudice where there is none. Of course, the length of the delay here was a presumptively prejudicial 23 months. But Black recognizes that he must show more, and he concedes that he can't. In the district court, Black notes that he asserted "anxiety and the deterioration of family relationships, and the inconvenience of counsel visiting with [an alleged coconspirator] (who had by that point pleaded guilty and been moved out of state) in preparation for trial." Appellant's Opening Br. at 45. Indeed, looking back to his motion to dismiss, we see that Black also argued that he was prejudiced because he had "spent well over two years of his life in a jail cell awaiting trial." R. vol. 1 at 483. But on appeal, Black acknowledges that he can't show "specific, cognizable prejudice." Appellant's Opening Br. at 45. He further notes that "[o]n prejudice, then, there is nothing for present purposes beyond the presumption that arises in the usual case when delay approaches a year, and that increases in force as that period increases, here to about double that amount of time." Id. at 46 (citation omitted).
Given this background, we don't weigh the prejudice factor against the government. Even if Black had reasserted all of his arguments from the district court, the prejudice factor wouldn't weigh against the government, because Black has failed to show particularized instances of prejudice in his case. We therefore weigh this factor heavily against Black. See Gould, 672 F.3d at 939 ("[F]ailure to show prejudice is nearly fatal to a speedy trial claim.").
To review, the length-of-the-delay factor weighs heavily against the government, the reason-for-the-delay factor doesn't weigh against the government at all, the assertion-of-the-right factor weighs heavily against Black, and the prejudice factor weighs heavily against Black. Looking at this summary, our balancing job is easy. We conclude that Black has not shown a Sixth Amendment violation.
While there was a substantial delay in this case, Black fails to cite any specific, particularized prejudice resulting from the delay. See Perez v. Sullivan, 793 F.2d 249, 256 (10th Cir. 1986) ("While a showing of prejudice may not be absolutely necessary in order to find a Sixth Amendment violation, we have great reluctance to find a speedy trial deprivation where there is no prejudice." (citation omitted)). Although in its Second Superseding Indictment the government charged the conspiracy count too broadly, Black failed to promptly and forcefully assert his right to a speedy trial and caused much of the delay with motions unrelated to the conspiracy charge. Nothing about the delay rendered Black unable to mount a defense to the government's charges or suggests that the government attempted to gain an advantage with its
Despite the long delay between the First Superseding Indictment and trial, Black failed to show prejudice and weakly asserted his speedy-trial right long after he was first indicted. Thus, he wasn't denied his constitutional right to a speedy trial.
But the district court plainly erred when it treated Black's conspiracy conviction as one punishable by life imprisonment. This mistake increased Black's total offense level by three levels. Because the district court plainly erred in calculating the advisory Guidelines range, resentencing is appropriate. We vacate Black's sentence and remand for resentencing in accordance with this opinion.
On May 4, 2016, Black filed an unopposed motion to supplement the appellate record with six documents, including Black's arrest warrant. Because we find these supplemental documents helpful in putting together this case's timeline, we grant the motion.
MacDonald, 456 U.S. at 8-9, 102 S.Ct. 1497 (quotation marks and citation omitted).
R. vol. 1 at 480 (emphasis added). Although this isn't the exact argument that Black asserts on appeal, it is close enough for us to consider the merits of Black's argument. We interpret Black's argument on appeal as a fleshed-out version of the argument he made to the district court, not a brand-new legal theory. Cf. Gould, 672 F.3d at 937-38 (prohibiting defendant from arguing on appeal that the government's delay was purposefully caused where in the district court the defendant argued only that the government's negligence or inadvertence caused the delay).
Second, the government argues that Black's argument should fail because his "alleged reason for the delay, i.e., that the indictment was an overreach, is not a recognized reason for attributing delay to the government in the Sixth Amendment speedy trial context." Appellee's Resp. Br. at 33. True, Black's argument is a novel one in our circuit. But the government cites no authority for the proposition that, because an argument is new, it necessarily fails.
Third, the government argues that Black's argument should fail because the Second Superseding Indictment wasn't an overreach. This assertion goes to the substance of Black's argument, and we address below whether the government's approach to prosecuting the conspiracy in this case was indeed an overreach.