U.S. v. Cano-Silva, 03-4059.

Decision Date28 March 2005
Docket NumberNo. 03-4059.,No. 03-4108.,03-4059.,03-4108.
Citation402 F.3d 1031
PartiesUNITED STATES of America, Plaintiff-Appellee/Cross-Appellant, v. Hector CANO-SILVA, also known as Hector Manuel CanoSilva, Hector Cano, and Hector Silva-Cano, Defendant-Appellant/Cross-Appellee.
CourtU.S. Court of Appeals — Tenth Circuit

Vicki Mandell-King, Assistant Public Defender (Michael G. Katz, former Federal Public Defender, and Raymond P. Moore, Federal Public Defender, with her on the briefs), Denver, CO, for Appellant/Cross-Appellee.

Michael S. Lee, Assistant United States Attorney (Paul M. Warner, United States Attorney, with him on the briefs), Salt Lake City, UT, for Appellee/Cross-Appellant.

Before SEYMOUR, MURPHY, and McCONNELL, Circuit Judges.

McCONNELL, Circuit Judge.

Defendant Hector Cano-Silva appeals the district court's decision to dismiss the indictment against him without prejudice after finding a violation of the Speedy Trial Act. The government cross-appeals the district court's determination that Mr. Cano-Silva's activities warranted a minor-participant adjustment leading to a reduction in his sentence.

I. Background

On November 28, 2001, Mr. Cano-Silva and David Padilla were indicted for conspiracy to distribute methamphetamine and cocaine. At his arraignment on November 29, 2001, Mr. Cano-Silva's trial date was set for January 28, 2002. A debriefing held on December 13, 2001 convinced counsel for both parties that continued plea negotiations would likely result in a change of plea, and counsel decided that the January trial date should be stricken and the time excluded from computation under the Speedy Trial Act.1 The district court was notified of the request for continuance by telephone and the trial date was stricken. Each party believed the other was to make the motion to exclude time from computation under the Speedy Trial Act, and as a result the motion was never made. Plea negotiations were complicated by an issue involving a confidential informant, the resolution of which was delayed by the limited availability of the case agent during the Salt Lake City Winter Olympics. Disclosure regarding the informant was ultimately made by pleading March 11, 2002. Despite counsels' early enthusiasm for plea negotiations, Mr. Cano-Silva ultimately rejected the government's plea offer. The relationship between Mr. Cano-Silva and his lawyer deteriorated, and on April 8, 2002, defense counsel moved the district court to permit his withdrawal, citing the breakdown of that perfect confidence that should mark the attorney-client relationship. On April 23, 2002, the district court granted the motion. The district court referred the case to a magistrate judge on April 30, 2002, and the magistrate judge appointed new counsel to represent Mr. Cano-Silva that same day.

Inspired to new diligence, perhaps, by this sudden activity, on May 2, 2002, the government filed a motion to exclude the time beginning December 13, 2001 until the new trial date from computation under the Speedy Trial Act. Mr. Cano-Silva's new counsel responded with a motion to dismiss with prejudice in light of the Speedy Trial Act violation. The magistrate judge denied the government's motion to exclude time, and the district court convened a hearing on Mr. Cano-Silva's motion to dismiss the indictment. At the conclusion of the hearing, the district court dismissed the indictment against Mr. Cano-Silva without prejudice.

The day after the dismissal the government obtained a new indictment against Mr. Cano-Silva for the same crimes charged in the initial indictment. A superceding indictment charged Mr. Cano-Silva with one count of possessing 50 grams or more of methamphetamine with intent to distribute and one count of possessing 500 grams or more of a mixture containing cocaine with an intent to distribute. A jury convicted Mr. Cano-Silva on both counts. Mr. Cano-Silva's base offense level was 38 due to the substantial quantities of drugs found in his car.2 The seriousness of his offense combined with his criminal history category of II exposed Mr. Cano-Silva to a sentencing range of 262 to 327 months. The government moved for a two-level obstruction of justice enhancement based on allegations that Mr. Cano-Silva perjured himself at trial. Mr. Cano-Silva moved for a minor participant adjustment based on his allegedly limited role in Mr. Padilla's drug-distribution activities. The district court denied the government's motion for an obstruction of justice enhancement, granted Mr. Cano-Silva's request for a minor-participant adjustment, and sentenced Mr. Cano-Silva to the minimum period of incarceration permitted under the applicable guideline range: 210 months. After briefing before this Court had been completed, the United States Supreme Court decided Blakely v. Washington, ___ U.S. ___, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). Mr. Cano-Silva argued in supplemental briefing that Blakely rendered the United States Sentencing Guidelines unconstitutional in their entirety and requested remand for discretionary sentencing within the statutory limits.

II. Analysis
A. Speedy Trial Act Violation

Mr. Cano-Silva appeals the district court's dismissal of the indictment against him without prejudice, arguing that dismissal with prejudice was the appropriate remedy for the Speedy Trial Action violation. The Speedy Trial Act provides that an accused person's trial must begin within seventy days of his indictment or initial appearance, whichever is later. 18 U.S.C. § 3161(c)(1). Periods of time devoted to negotiating plea agreements are not explicitly excluded from calculation, but such delays may be excluded if the district court determines that "the ends of justice served by [granting a continuance and excluding the time from calculation] outweigh the best interest of the public and the defendant in a speedy trial." 18 U.S.C. § 3161(h)(8)(A).

When more than seventy non-excluded days have passed, the Act requires dismissal of an affected indictment on motion by the defendant. 18 U.S.C. § 3162(a)(2). While dismissal of the indictment is mandatory, the district court retains discretion to determine whether the indictment is dismissed with or without prejudice. Id. In determining whether to dismiss with or without prejudice, 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.

Id. The Supreme Court has indicated that prejudice to the defendant occasioned by the delay should also be considered in determining whether to dismiss an indictment with or without prejudice. See United States v. Taylor, 487 U.S. 326, 333-34, 108 S.Ct. 2413, 101 L.Ed.2d 297 (1988).

We review for abuse of discretion a district court's decision under the Speedy Trial Act to dismiss an indictment without prejudice. United States v. Jones, 213 F.3d 1253, 1256 (10th Cir.2000). "[W]hen the statutory factors are properly considered, and supporting factual findings are not clearly in error, the district court's judgment of how opposing considerations balance should not lightly be disturbed." Taylor, 487 U.S. at 337, 108 S.Ct. 2413.

The district court in Mr. Cano-Silva's case considered each of the required factors and held that dismissal without prejudice was the appropriate remedy for the Speedy Trial Act violation. Mr. Cano-Silva does not strenuously dispute the district court's determination that three of the four factors support dismissal without prejudice. Mr. Cano-Silva concedes, for instance, that the crime with which he was charged is a serious one. He makes only a perfunctory objection to the district court's conclusion that the administration of justice is best served by a dismissal without prejudice, suggesting that a dismissal with prejudice "would send a strong message that ... the government should be aware of the demands of the Speedy Trial Act." Aplt's Br. 17. As we have had occasion to point out before, the Speedy Trial Act provides for two varieties of penalties, both of which give the government incentives to avoid violations. See Jones, 213 F.3d at 1257. While dismissal with prejudice is obviously the more severe sanction, a dismissal without prejudice still requires re-indictment, may expose the government to statute of limitations difficulties, and generally makes prosecution less likely. See id. The fact that a violation has taken place is not alone sufficient for the application of the more severe sanction of dismissal with prejudice, which should be reserved for more egregious violations. Dismissal with prejudice is a strong message indeed, and one ill-suited to an isolated and inadvertent violation.

Mr. Cano-Silva has also failed to demonstrate that he was so prejudiced by the delay as to warrant the dismissal of his case with prejudice. Mr. Cano-Silvo compares his situation to that of the defendant in United States v. Saltzman, 984 F.2d 1087 (10th Cir.1993), observing that the delay in his case was longer and that Mr. Saltzman's trial was delayed by negotiations that culminated in a favorable plea agreement, whereas he ultimately received a longer sentence than the plea bargain he rejected. This comparison is unpersuasive. While the length of the delay in Mr. Cano-Silva's case is not insignificant, neither is it dispositive. See Jones, 213 F.3d at 1258 (holding that a delay of 414 non-excludable days did not require dismissal with prejudice). The chief appeal of plea agreements for defendants is that a plea bargain presumably will result in a shorter sentence than a sentence following a conviction; having fired one lawyer who negotiated a favorable plea agreement and declined to follow the advice of another during trial, Mr. Cano-Silva can hardly complain that his sentence was longer than that offered in the plea agreement. The acceptance of...

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