U.S.A. v. Robertson

• Citation: 260 F.3d 500
• Decision Date: 27 April 2001
• Docket Number: No. 99-2159,99-2159
• Parties: (6th Cir. 2001) United States of America, Plaintiff-Appellee, v. James G. Robertson, Defendant-Appellant. Submitted:
• Court: U.S. Court of Appeals — Sixth Circuit

Page 500

260 F.3d 500 (6th Cir. 2001)

United States of America, Plaintiff-Appellee, v. James G. Robertson, Defendant-Appellant.

No. 99-2159

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Submitted: April 27, 2001

Decided and Filed: July 10, 2001

Kathleen Moro Nesi, ASSISTANT UNITED STATES ATTORNEY, Detroit, Michigan, for Appellee.

Richard J. Amberg, Waterford, Michigan, for Appellant.

Before: SILER and MOORE, Circuit Judges; STAGG, District Judge. ^*

OPINION

MOORE, Circuit Judge.

Defendant-Appellant James Robertson ("Robertson" or "defendant") argues on appeal that the seventy-day period in which the government was required to bring him to trial was exceeded in this case, thus violating his statutory rights under the Speedy Trial Act, 18 U.S.C. §3161. Robertson further appeals several aspects of his sentence, claiming that the district court erred in refusing to grant him an additional offense level reduction for "super acceptance" of responsibility pursuant to United States Sentencing Guidelines ("U.S.S.G.") §3E1.1(b)(1), and that the court erred in sentencing him as a career offender under U.S.S.G. §4B1.1.

Although we AFFIRM the district court's decision that the Speedy Trial Act was not violated in this case, we VACATERobertson's sentence and REMAND for new sentencing due to error in the application of U.S.S.G. §§3E1.1(b) and 4B1.1.

I. BACKGROUND

On October 10, 1997, James Robertson entered a Huntington Bank branch in Hamtramck, Michigan. Robertson approached the counter and handed a bank teller a demand note stating: "'I want $3000,00 [sic] in on [sic] hundred bills do as I say and do it now or I will shoot This is no joke Put it in an envelope.'" Joint Appendix ("J.A.") at 13 (FBI Agent Townley Aff.). The teller, after beginning to count out the money, pushed the hold-up alarm and ran away from her window screaming. Robertson then ran out of the bank, followed by two female bank employees. A man driving a truck witnessed the employees following Robertson and then aided the employees in apprehending Robertson. The man held Robertson until the Hamtramck Police arrived.

Later that same day, the FBI arrived at the Hamtramck Police Department and took custody of Robertson. During an interview with two FBI field agents, Robertson waived his Miranda rights and confessed to attempting to rob the bank in question. Robertson also drafted a written confession concerning the attempted bank robbery.

After a one-count information charging Robertson with attempted bank robbery was filed, Robertson agreed to plead guilty pursuant to a plea agreement that capped his sentence at forty months' imprisonment. At the plea hearing in February 1998, the district court accepted Robertson's guilty plea and took the plea agreement under advisement.

In the Presentence Investigation Report ("PSR"), the probation officer calculated a sentencing range substantially different from that agreed to in the plea bargain. Based on Robertson's prior felony convictions, the probation officer determined that Robertson should be sentenced as a career offender, calculating a total offense level of 29 and a criminal history category of VI. The guideline sentencing range based on these calculations was 151 to 188 months. U.S.S.G. Sentencing Table. Based on the significant difference between the recommended sentencing range in the plea agreement and the PSR, the district court rejected the plea agreement, stating that it could "find no possible justification for agreeing to sentence this defendant to forty months, given this defendant's lengthy criminal history and the contempt that he has shown for the criminal justice system." J.A. at 168 (Sentencing Hr'g I). At that point, Robertson expressed his desire to go to trial rather than enter into a revised plea agreement. Following the withdrawal of his guilty plea, a revised PSR was written in which Robertson received an offense level reduction of two points for acceptance of responsibility, rather than the three-level reduction given originally, because the government was now forced to prepare for trial. This altered his guideline imprisonment range to 168 to 210 months.

After withdrawing his original guilty plea, Robertson filed a series of motions with the district court, including a motion to suppress his confession, several motions to adjourn trial, a motion to dismiss for failure properly to waive indictment, and several motions requesting that the district judge recuse himself from the proceedings. The district court denied the defendant's motions.

On September 7, 1999, the first scheduled day of trial, Robertson entered into a conditional plea agreement. The agreement stated that Robertson could raise on appeal any of the claims he had argued in his pretrial motions; that he would be given a two-point reduction for acceptance of responsibility; that he would have the opportunity to argue for a third point reduction at his sentencing hearing; and that he would be sentenced to no more than the mid-point of the applicable guideline imprisonment range. At the sentencing hearing on October 4, 1999, the district court accepted Robertson's plea agreement. The court denied Robertson the additional offense level reduction for "super-acceptance" of responsibility, however.

On appeal, Robertson now argues 1) that the district court erred in refusing to grant him an additional offense level reduction for acceptance of responsibility pursuant to U.S.S.G. §3E1.1(b)(1); 2) that the court erred in sentencing him as a career offender pursuant to U.S.S.G. §4B1.1; and 3) that the court erred in holding that the seventy-day time period in which the government had to bring him to trial pursuant to the Speedy Trial Act was not exceeded in this case.

II. ANALYSIS

A. Speedy Trial Act

Robertson argues that the district court erred in determining that his statutory right to a speedy trial under 18 U.S.C. §3161 was not violated in this case. The Speedy Trial "Act requires dismissal of a criminal case, with or without prejudice, if the defendant is not tried seventy days after his indictment or the date he first appears in court, whichever date last occurs." United States v. Jenkins, 92 F.3d 430, 438 (6th Cir. 1996), cert. denied, 520 U.S. 1170 (1997). We address this question before any sentencing issues because if the government did not comply with the Speedy Trial Act in prosecuting Robertson, the entire case, including any sentencing determinations made by the district court, must be dismissed.

On appeal, Robertson disputes only a small portion of the district court's speedy trial time calculation. More specifically, the defendant contends that the district court erred in stopping the speedy trial clock during the eight-day period soon before trial in which the government's motion for a continuance based upon the unavailability of one of its essential witnesses was pending. Under the district court's time calculation, resolving whether the speedy trial clock should be stopped while the government's continuance motion was pending was crucial to determining whether the Speedy Trial Act's seventy-day period was exceeded in this case. Nevertheless, we need not address this question because the district court erred in its determination of when the speedy trial clock should begin running in this case. Because we believe that the speedy trial clock should have been started significantly later than the district court determined, the question of stopping during the government's filing of a continuance motion is no longer outcome-determinative. Ultimately, we will affirm the district court's decision that the Speedy Trial Act was not violated in this case, though on grounds different from those presented by the government to the district court and on which the district court relied. See United States v. Allen, 106 F.3d 695, 700 n.4 (6th Cir. 1997) (stating that "we may affirm on any grounds supported by the record, even though different from the grounds relied on by the district court.").

The district court determined that the seventy-day period given the government to bring Robertson to trial should begin running on November 5, 1997, the day Robertson was first indicted on the attempted bank robbery charge. We recognize, however, that, pursuant to 18 U.S.C. §3161(i), because the defendant withdrew his original guilty plea, he "shall be deemed indicted ... on the day the order permitting withdrawal of the plea becomes final." See also United States v. Marks, 209 F.3d 577, 586 (6th Cir.), cert. denied, 121 S. Ct. 195 (2000) (holding that the day the defendant withdraws his guilty plea becomes the day of indictment for Speedy Trial Act purposes). Although there was no official district court order permitting Robertson to withdraw his guilty plea, viewing the record in the light most favorable to the defendant, we will treat October 2, 1998, the day the government and the district court were informed that the defendant wanted to withdraw his guilty plea and proceed to trial, as the day the district court's order permitting withdrawal of the plea became final, and thus the new day of indictment. Because the day of indictment cannot be counted toward the seventy-day time limit, United States v. Mentz, 840 F.2d 315, 326 (6th Cir. 1988), we hold that the government's speedy trial clock started to run on October 3, 1998, almost eleven months later than the district court's designated starting date for the speedy trial clock.

Before engaging in a precise calculation of the government's compliance with the Speedy Trial Act, we must first address the various events that can stop the running of 18 U.S.C. §3161(c)'s seventy-day time period. First, "[a] court should exclude all the days during which it is waiting to receive information necessary to decide a pending pre-trial motion. If the motion requires a hearing, the entire time from the filing of the motion through the date of the hearing is excludable."...