IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 97-50642 _____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
BILLY MEL ALFORD,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court for the Western District of Texas _________________________________________________________________
May 28, 1998
Before WISDOM, KING, and DAVIS, Circuit Judges.
KING, Circuit Judge:
Defendant-appellant Billy Mel Alford appeals his
conviction and sentence for four counts of importation of
marijuana in violation of 21 U.S.C. §§ 952(a) and 960(a)(1) and
four counts of possession of marijuana with intent to distribute
in violation of 21 U.S.C. § 841(a)(1). For the reasons set forth
below, we affirm in part, vacate in part, and remand.
I. FACTUAL BACKGROUND
On January 9, 1997, Billy Mel Alford was charged in a two-
count indictment with importation of marijuana and possession of
marijuana with intent to distribute on or about November 27,
1996. Alford was arraigned on this indictment on February 4, 1997. On February 27, 1997, Alford was charged in a ten-count
superseding indictment. Counts 1 and 2 of the superseding
indictment charged Alford with importation of marijuana and
possession of marijuana with intent to distribute in or about
February 1996; counts 3 and 4 charged him with importation of
marijuana and possession of marijuana with intent to distribute
on or about April 22, 1996; counts 5 and 6 charged him with
importation of marijuana and possession of marijuana with intent
to distribute between on or about May 26, 1996 and June 2, 1996;
counts 7 and 8 charged him with importation of marijuana and
possession of marijuana with intent to distribute on or about
October 29, 1996; and counts 9 and 10 charged him with
importation of marijuana and possession of marijuana with intent
to distribute on or about November 26, 1996. The government
concedes that the offenses charged in counts 9 and 10 were based
upon the same conduct that formed the basis of counts 1 and 2 of
the original indictment. Alford’s trial commenced on April 28,
1997. On the same date, Alford filed a motion to dismiss the
superseding indictment on the ground that trying him on the
indictment would violate the Speedy Trial Act, 18 U.S.C. §§ 3161-
74, and the Speedy Trial Plan for the Western District of Texas.
The district court denied the motion. The jury convicted Alford
on counts 3 through 10 of the indictment and acquitted him on
counts 1 and 2. Alford concedes that sufficient evidence exists
to support the convictions.
2 Alford’s presentence investigation report (PSR) determined
Alford’s offense level to be 40 and his criminal history category
to be III, which subjected him to a Sentencing Guidelines range
of 360 months to life imprisonment. See UNITED STATES SENTENCING
GUIDELINES MANUAL ch. 5, pt. A (Sentencing Tbl.) (1995). The PSR
calculated Alford’s base offense level as 34, based upon a
determination that 3108 kilograms of marijuana were attributable
to Alford in relation to the offenses of conviction. See id. §
2D1.1. The PSR recommended a two-level upward adjustment for
possession of a dangerous weapon, see id. § 2D1.1(b)(1), and a
four-level upward adjustment based on Alford’s role as an
organizer or leader of criminal activity involving five or more
participants or that was otherwise extensive, see id. § 3B1.1(a).
The PSR also noted that the district court might consider an
upward departure pursuant to § 4A1.3 of the Guidelines if it
found that Alford’s criminal history category of III did not
adequately reflect the seriousness of Alford’s criminal past or
his propensity for committing future crimes.
Alford objected to the PSR’s calculation of his base offense
level on the ground that insufficient evidence supported the
amount of marijuana that the PSR attributed to him. He also
objected to the PSR’s recommendation of an increase in his
offense level for possession of a dangerous weapon. The district
court sustained Alford’s objection to the increase for possession
of a dangerous weapon but overruled his objection regarding the
amount of marijuana attributable to him. The court then
3 concluded that an upward departure was warranted on the following
grounds:
[I]n studying this presentence report, it occurs to me that the criminal history category in this matter doesn’t really show up the seriousness of this particular crime. It’s a criminal history category of III, and my problem with that is it doesn’t adequately show the convictions that Mr. Billy Mel Alford had for sale and delivery of marijuana in the 204th District Court of Dallas County in 1977, in the cause numbers that are set forth, 7701, 526, 527 and 528. When you put these marijuana convictions which were excluded because they were pretty far back, really they went back of his previous conviction that Mr. Alford suffered in my Court. So based on his previous history of convictions in ‘77, based on his convictions here in the District Court of the Western District, Pecos Division, all for marijuana, I find that Mr. Alford was at least 18 years old, that the instant offense is a felony that deals with a controlled substance. I further find that Mr. Alford has at least two prior felony convictions of either a crime of violence or a controlled substance. And in this instance, it would be a controlled substance. I find that the criminal history category of III doesn’t adequately represent Mr. Alford’s career offenses, and so I am going to sentence him under, given the two-point reduction for the gun, under an offense level of 38 and a criminal history category of VI, because I believe, having Mr. Alford before, watched him operate, seen his modus operandi, that he is indeed a career offender.
Alford did not object to the district court’s decision to
increase his criminal history category. The Guidelines
imprisonment range for an offense level of 38 and a criminal
history category of VI is 360 months to life. See id. ch. 5, pt.
A (Sentencing Tbl.). The district court imposed concurrent
sentences of 480 months’ imprisonment on each count of conviction
to be followed by a five-year period of supervised release. The
district court also imposed a $200,000 fine ($25,000 per count of
4 conviction) and an $800 special assessment ($100 per count of
conviction). Alford filed a timely notice of appeal.
II. DISCUSSION
On appeal, Alford challenges his judgment of conviction and
sentence on the following three grounds:
1. the district court erred in denying his motion to
dismiss the superseding indictment based upon his
statutory right to a speedy trial;
2. the district court abused its discretion in
increasing his criminal history category to VI;
and
3. the district court erred in concluding that more
than 3000 kilograms of marijuana were attributable
to him.
We address each of these issues in turn.
A. The Speedy Trial Act
The Speedy Trial Act generally requires that the trial of a
criminal defendant “commence within seventy days from the filing
date (and making public) of the information or 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); see also United
States v. Bermea, 30 F.3d 1539, 1566 (5th Cir. 1994). However,
the Act tolls the seventy-day clock for certain statutorily
enumerated periods of delay. See 18 U.S.C. § 3161(h); Bermea, 30
F.3d at 1566.
5 Alford contends that the district court’s denial of his
motion to dismiss the superseding indictment violated his
statutory right to a speedy trial because his trial commenced
approximately eighty-four days after his arraignment on the
initial indictment.1 He contends, and the government concedes,
that none of this time was excludable under the tolling
provisions contained in § 3161(h). Alford therefore argues that
the district court was required to dismiss the superseding
indictment. See 18 U.S.C. § 3162(a)(2) (“If a defendant is not
brought to trial within the time limit required by section
3161(c) as extended by section 3161(h), the information or
indictment shall be dismissed on motion of the defendant.”).
By conceding that more than seventy non-excludable days
transpired between Alford’s arraignment and the commencement of
his trial, the government essentially concedes that a Speedy
Trial Act violation occurred with respect to counts 9 and 10 of
the superseding indictment. In United States v. Gonzales, 897
F.2d 1312, 1316 (5th Cir. 1990), we held that
[t]he filing of a superseding indictment does not affect the speedy-trial clock for offenses charged in the original indictment or any offense required under double jeopardy principles to be joined with the original offenses. The seventy-day speedy-trial period continues to run from the date of the original indictment or arraignment, whichever was later, and all speedy-trial exclusions apply as if no superseding indictment had been returned. This rule prevents the government from circumventing the speedy-trial guarantee by restarting the speedy-trial clock by
1 Both parties agree that Alford’s arraignment constituted his first appearance before a judicial officer of the court where the indictment was pending.
6 obtaining superseding indictments with minor corrections.
Id. at 1316 (citations omitted). Thus, because Alford’s trial
did not commence within seventy days after Alford’s first
appearance before a judicial officer of the court where the
original indictment was pending, counts 9 and 10 of the
superseding indictment, which were offenses charged in the
original indictment, were subject to dismissal.
However, counts 1 through 8 of the superseding indictment
were not charged in the original indictment, and Alford has not
attempted to--nor can he--establish that double jeopardy concerns
required the government to try the offenses alleged in counts 1
through 8 along with counts 9 and 10. See United States v.
Register, 931 F.2d 308, 312-13 (5th Cir. 1991) (holding that a
defendant charged with two counts of possession of cocaine with
intent to distribute occurring on separate dates could not
establish that prosecution on both counts constituted double
jeopardy without proving that the cocaine forming the basis of
each count came from the same “stash”); United States v. Marable,
578 F.2d 151, 153 (5th Cir. 1978) (“To support a claim of double
jeopardy, a defendant must show that the two offenses charged are
in law and fact the same offense.”). This case therefore forces
us to confront a question that we expressly left open in
Gonzales: “whether a new speedy-trial clock begins for new
offenses charged in the superseding indictment [that the double
jeopardy clause would not require the government to join with the
original charges], when the indictment retains some of the
7 original charges.” Gonzales, 897 F.2d at 1316. We answer this
question in the affirmative and join two other circuits that have
done the same. See United States v. Kelly, 45 F.3d 45, 48 (2d
Cir. 1995); United States v. Lattany, 982 F.2d 866, 872 n.7 (3d
Cir. 1992).
It is clear that, as to charges that the government is not
required to join with the offenses charged in the original
indictment, the government may obtain a fresh speedy trial clock
by simply waiting until completion of the prosecution for the
charges contained in the original indictment and beginning a new
prosecution on the additional charges. We see no logical basis
for concluding that, when the government chooses to add in a
superseding indictment charges that it is not required to join
with the charges contained in the original indictment, it must
bring the defendant to trial on the added charges within the time
period remaining on the speedy trial clock applicable to the
charges contained in the original indictment. Under the
construction of the Speedy Trial Act that we adopt, the defendant
is guaranteed that his trial on a particular charge is brought
within seventy non-excludable days of the later of his indictment
on the charge or his first appearance before an officer of the
court where the charge is pending. Where, as here, the defendant
is not brought to trial on the superseding indictment within
seventy nonexcludable days of the later of the defendant’s first
appearance or the filing of the original indictment, the counts
in the superseding indictment that were contained in the original
8 indictment (or those that the double jeopardy clause requires to
be joined with them) are subject to dismissal.
Well under seventy days transpired between the filing of the
superseding indictment and Alford’s trial. We therefore conclude
that, as to counts 1 through 8 of the superseding indictment, no
Speedy Trial Act violation occurred. However, Alford’s trial on
counts 9 and 10 violated the Act. Accordingly, we vacate the
district court’s judgment of conviction and sentence on counts 9
and 10 and remand for dismissal of these counts of the
indictment.
A dismissal for violation of the Speedy Trial Act may be
with or without prejudice, see 18 U.S.C. § 1362(a)(2), and the
Act prefers neither remedy over the other, see United States v.
Johnson, 29 F.3d 940, 945 (5th Cir. 1994). While we may in some
circumstances make the determination of the appropriate type of
dismissal ourselves, see id., as a general rule, “the trial court
is best situated to decide whether to dismiss indictments with or
without prejudice in light of a Speedy Trial Act violation.”
United States v. Blackwell, 12 F.3d 44, 48 (5th Cir. 1994)
(emphasis omitted); see also United States v. Willis, 958 F.2d
60, 64 (5th Cir. 1992) (“The district court is best situated to
decide whether to dismiss with prejudice. We reverse the
convictions for violation of the Speedy Trial Act but leave to
the district court the nature of that dismissal.”); United States
v. Melguizo, 824 F.2d 370, 371 (5th Cir. 1987) (“[T]he decision
whether to dismiss a complaint under the Speedy Trial Act with or
9 without prejudice is entrusted to the sound discretion of the
district judge . . . .” (internal quotation marks omitted)). We
therefore remand to the district court so that it may determine
whether the dismissal of counts 9 and 10 of the superseding
indictment should be with or without prejudice. The Speedy Trial
Act provides that, in making this determination,
the court shall consider, among others, each of the following factors: the seriousness of the offense; the facts and circumstances of the case which led to the dismissal; and the impact of a reprosecution on the administration of this chapter and on the administration of justice.
18 U.S.C. § 3162(a)(2).
B. Increase in Criminal History Category
Alford next argues that the district court erred in
increasing his criminal history category from III to VI. He
contends that the court’s reasons for the departure do not comply
with the requirements for upward departures in this Circuit.
Specifically, he argues that the district court did not explain
why intermediate criminal history categories were not appropriate
as required by United States v. Lambert, 984 F.2d 658 (5th Cir.
1993) (en banc), and that his sentence should therefore be
vacated and the case remanded for resentencing.
We generally review a district court’s decision to depart
from the Guidelines for an abuse of discretion. See United
States v. McKenzie, 991 F.2d 203, 204 (5th Cir. 1993). However,
Alford did not object to the upward departure in the district
court. “Under Federal Rule of Criminal Procedure 52(b), this
court may correct forfeited errors only when the appellant shows
10 that (1) there is an error, (2) the error is plain, and (3) the
error affects her substantial rights.” United States v.
Ravitch, 128 F.3d 865, 869 (5th Cir. 1997) (citing United States
v. Olano, 507 U.S. 725, 732-35 (1993)). Even if the appellant
satisfies these factors, “the decision to correct the forfeited
error falls within this court’s sound discretion,” and we will
not exercise that discretion to correct a forfeited error “unless
the error seriously affects the fairness, integrity, or public
reputation of judicial proceedings.” Id. Applying the plain
error standard, we have held that, in circumstances in which the
trial court could reinstate the same sentence were the case
remanded, the defendant’s sentence is sustainable even though
“the district court’s stated reasons for departing evidence a
mistaken application of the Sentencing Guidelines.” Id.; see
also United States v. Brunson, 915 F.2d 942, 944 (5th Cir.
1990). Put another way, under the plain error standard of
review, “we will uphold a defendant’s sentence if on remand the
district court could reinstate the same sentence by relying on a
reasonable application of the Sentencing Guidelines.” Ravitch,
128 at 871.
The district court may depart from the otherwise applicable
Guidelines range if reliable information indicates that the
defendant’s criminal history category does not adequately reflect
the seriousness of the defendant’s past criminal conduct or the
likelihood that the defendant will commit other crimes. See U.S.
SENTENCING GUIDELINES MANUAL § 4A1.3. When departing on the basis of
11 § 4A1.3, “the district court should consider each intermediate
criminal history category before arriving at the sentence it
settles upon; indeed, the court should state for the record that
it has considered each intermediate adjustment.” Lambert, 984
F.2d at 662. Id. However, this court does not
require the district court to go through a ritualistic exercise in which it mechanically discusses each criminal history category it rejects en route to the category that it selects. Ordinarily the district court’s reasons for rejecting intermediate categories will clearly be implicit, if not explicit, in the court’s explanation for its departure from the category calculated under the guidelines and its explanation for the category it has chosen as appropriate.
Id. at 663.
Alford’s criminal history points placed him in criminal
history category III. See U.S. SENTENCING GUIDELINES MANUAL ch. 5,
pt. A (Sentencing Tbl.). Three of Alford’s criminal history
points resulted from a prior conviction of ten counts of
possession of marijuana with intent to distribute and one count
of conspiracy to possess marijuana with intent to distribute.
Additionally, he had six criminal convictions, three of which
were drug convictions, that were not considered in the criminal
history computation because of their age. See id. § 4A1.2(e).
The district court could reasonably conclude that a criminal
history category of III did not adequately reflect the
seriousness of Alford’s criminal history or his propensity for
recidivism. See id. § 4A1.2 Application Note 8 (“If the court
finds that a sentence imposed outside th[e] time period [imposed
by § 4A1.2(e)] is evidence of similar, or serious dissimilar,
12 criminal conduct, the court may consider this information in
determining whether an upward departure is warranted under
§ 4A1.3 . . . .”). Further, it was not unreasonable for the
district court to conclude that an increase of more than one in
Alford’s criminal history category was warranted. Assuming
merely for the sake of argument that the district court’s
statement of the reasons for its departure was inadequate under
Lambert (i.e., assuming that the reasons that the district court
chose a criminal history category of VI as opposed to an
intermediate category were not implicit in its stated reasons for
the departure), were we to remand the case, the district court
could properly impose the same sentence by stating on the record
that it had considered the intermediate criminal history category
of IV and determined that a category of V was appropriate.2 We
therefore conclude that the district court’s upward departure did
not constitute plain error warranting a vacation of Alford’s
sentence and resentencing on counts 3 through 8.
C. Amount of Marijuana Attributed to Alford
Alford finally contends that the district court erred in
concluding that more than 3000 kilograms of marijuana were
attributable to him for sentencing purposes. The district
court’s calculation of the quantity of drugs involved in an
offense is a factual determination. See United States v. Ponce,
2 The district court could impose the same sentence were it to raise Alford’s criminal history category only to V because the same Guidelines range--360 months to life--applies to an offense level of 38 with a criminal history category of V or VI. See U.S. SENTENCING GUIDELINES MANUAL ch. 5, pt. A.
13 917 F.2d 841, 842 (5th Cir. 1990); United States v. Rivera, 898
F.2d 442, 445 (5th Cir. 1990). “Factual findings regarding
sentencing factors are entitled to considerable deference and
will be reversed only if they are clearly erroneous.” United
States v. Watson, 966 F.2d 161, 162 (5th Cir. 1992). “A factual
finding is not clearly erroneous as long as it is plausible in
light of the record as a whole.” United States v. Sanders, 942
F.2d 894, 897 (5th Cir. 1991).
“[A] presentence report generally bears sufficient indicia
of reliability to be considered as evidence by the trial judge in
making the factual determinations required by the sentencing
guidelines.” Id. at 898. A district court may adopt facts
contained in the PSR without further inquiry if the facts have an
adequate evidentiary basis and the defendant does not present
rebuttal evidence. See United States v. Puig-Infante, 19 F.3d
929, 943 (5th Cir. 1994). “The defendant bears the burden of
showing that the information in the PSR relied on by the district
court is materially untrue.” United States v. Valencia, 44 F.3d
269, 274 (5th Cir. 1995); see also United States v. Ruiz, 43 F.3d
985, 989 (5th Cir. 1995); Puig-Infante, 19 F.3d at 943.
In this case, the district court accepted the PSR’s
conclusion that 3108 kilograms of marijuana were attributable to
Alford in relation to the charged offenses. Alford challenges
the reliability of the PSR’s calculation, arguing that it was
based in part on the testimony of Paul Preston, Alford’s
coconspirator, who stated on cross-examination that the unseized
14 quantities of marijuana that he testified were involved in some
of the charged offenses were guesses and that the actual
quantities could have been smaller. Alford argues that, because
Preston characterized the amounts to which he testified as
guesses and acknowledged that the actual quantities could have
been smaller, the district court should have erred on the side of
assuming smaller quantities for sentencing purposes.
We conclude that the district court did not clearly err in
calculating the amount of marijuana attributable to Alford. The
fact that Preston’s testimony was somewhat imprecise did not
preclude reliance on it for sentencing purposes because a
district court may consider “estimates of the quantity of drugs
for sentencing purposes.” United States v. Sherrod, 964 F.2d
1501, 1508 (5th Cir. 1992). Preston’s testimony that the amounts
involved could have been smaller than the amounts that he stated
on direct examination is merely an acknowledgment that the
amounts to which he testified were estimates rather than exact
figures. Moreover, Alford presented no rebuttal evidence
establishing that the information in the PSR regarding the amount
of marijuana attributable to him was materially untrue. As such,
the district court’s determination that 3108 kilograms of
marijuana were attributable to Alford was not implausible on this
record and therefore not clearly erroneous.
III. CONCLUSION
For the foregoing reasons, we VACATE the district court’s
judgment of conviction and sentence on counts 9 and 10 of the
15 superseding indictment and REMAND for dismissal of those two
counts and a determination of whether the dismissal should be
with or without prejudice. We affirm the district court’s
judgment of conviction and sentence in all other respects.