U.S. v. Alford

• Decision Date: 28 May 1998
• Docket Number: No. 97-50642,97-50642
• Citation: 142 F.3d 825
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Billy Mel ALFORD, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 825

142 F.3d 825

UNITED STATES of America, Plaintiff-Appellee, v. Billy Mel ALFORD, Defendant-Appellant.

No. 97-50642.

United States Court of Appeals, Fifth Circuit.

May 28, 1998.

Rehearing Denied July 14, 1998.

Richard L. Durbin, Jr., Joseph H. Gay, Jr., Asst. U.S. Attys., San Antonio, TX, for Plaintiff-Appellee.

John Stephen Cooper, Dallas, TX, for Defendant-Appellant.

Appeal from the United States District Court for the Western District of Texas.

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.

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 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 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.

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 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.199...