U.S. v. Robinson

• Decision Date: 30 June 2006
• Docket Number: No. 04-2283.,04-2283.
• Citation: 455 F.3d 602
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ray Reci ROBINSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 602

455 F.3d 602

UNITED STATES of America, Plaintiff-Appellee, v. Ray Reci ROBINSON, Defendant-Appellant.

No. 04-2283.

United States Court of Appeals, Sixth Circuit.

Argued: June 6, 2006.

Decided and Filed: June 30, 2006.^*

COPYRIGHT MATERIAL OMITTED

ARGUED: John F. Royal, Detroit, Michigan, for Appellant. Stephen L. Hiyama, Assistant United States Attorney, Detroit, Michigan, for Appellee. ON BRIEF: John F. Royal, Detroit, Michigan, for Appellant. Stephen L. Hiyama, Patricia G. Gaedeke, Assistant United States Attorney, Detroit, Michigan, for Appellee.

Before DAUGHTREY and COLE, Circuit Judges; GRAHAM,^** District Judge.

GRAHAM, District Judge.

Defendant-appellant Ray Reci Robinson appeals his conviction and sentence for one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1), and one count of possession with the intent to distribute approximately 7.5 grams of crack cocaine in violation of 21 U.S.C. § 841(a)(1) and § 841(b)(1)(B)(iii). Defendant argues that the district court erred in denying his motion to dismiss the indictment based on alleged violations of the Speedy Trial Act, 18 U.S.C. § 3161(j)(1), the Interstate Agreement on Detainers, 18 U.S.C. app. 2, § 2, art. III(c), and his right to a speedy trial under the Sixth Amendment of the United States Constitution. Defendant also contends that the waiver of appeal rights contained in his plea agreement is invalid and unenforceable, and that his case must be remanded for resentencing in light of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). For the following reasons, we AFFIRM the judgment and sentence imposed by the district court.

Facts of the Case

Defendant was convicted in April of 2000 for possession of cocaine in the Wayne County Circuit Court, Wayne County, Michigan, and was sentenced to a lifetime term of probation. In December of 2000, the state court imposed drug treatment as an additional condition of probation, and on January 18, 2001, defendant was placed in the Gateway Detention Facility. He left the facility on March 16, 2001, and a probation violation warrant was issued for his arrest.

On April 27, 2001, police officers in Detroit, Michigan executed a search warrant at 12684 Sussex in Detroit. Defendant was observed attempting to climb out of a bedroom window. He had a small nickel-plated revolver in his hand. He was arrested, and officers found twenty-eight small plastic bags of crack cocaine in his pocket. Plaintiff was confined in the Wayne County Jail on the probation violation warrant. On May 2, 2001, he pleaded guilty to the probation violation.

On May 14, 2001, a federal criminal complaint was filed charging defendant with being a felon in possession of a firearm on April 27, 2001, and an arrest warrant was issued on the complaint. On May 15, 2001, the United States Marshal's Service in Detroit lodged a detainer against defendant at the Wayne County Jail based on the federal complaint, using Form USM-16a, captioned "Detainer Against Unsentenced Prisoner."

On May 18, 2001, defendant was sentenced in state court to a term of imprisonment of 3-1/2 years to 20 years on the probation violation. He was transported to the Macomb Correctional Facility on May 21, 2001, to serve the state sentence. By letter dated May 29, 2001, the Michigan Department of Corrections notified the United States Marshal's Service that the federal detainer had been lodged against the defendant. The letter further stated that the defendant "is serving a 3 year 6 month to 20 year sentence for Controlled Substance. His earliest release date is 04/01/2004 and his maximum release date is 03/25/2021." However, no Form USM-17, captioned "Detainer Against Sentenced Prisoner," was ever lodged. As a result, defendant was never informed of his right to demand a speedy trial on the federal charges.

On May 8, 2002, a federal indictment was returned charging defendant with being a felon in possession of a firearm and possession with the intent to distribute approximately 7.5 grams of crack cocaine. Defendant made his initial appearance on the federal indictment on May 20, 2002, and was arraigned on May 21, 2002, entering not guilty pleas to the counts in the indictment. On May 21, 2002, defendant also signed a waiver of anti-shuttling rights under the Interstate Agreement on Detainers and was returned to state custody.

A jury trial was scheduled for July 2, 2002. However, on July 17, 2002, an order was filed vacating the trial date. On August 29, 2002, defendant filed a motion to dismiss the indictment for failure to return the indictment within thirty days of the date of arrest in violation of 18 U.S.C. § 3161(b). On October 7, 2002, defendant filed a motion for reconsideration of the court's denial of the motion to dismiss. On October 9, 2002, defendant's attorney filed a motion to withdraw, and the motion was granted on November 7, 2002. New counsel was appointed on November 12, 2002. A pretrial conference was held on February 12, 2003, and trial was scheduled for May 20, 2003. By stipulation, the trial was later continued to July 15, 2003. On July 8, 2003, defendant filed a supplemental brief in support of the motion to dismiss the indictment. The trial was rescheduled to September 2, 2003, and again, by stipulation, to October 7, 2003.

On October 1, 2003, the district court scheduled a hearing on the motion to dismiss for October 29, 2003, and scheduled the trial for November 4, 2003. At the hearing on October 29, 2003, the motion to dismiss was denied, and a memorandum opinion and order was filed on November 4, 2003. On November 10, 2003, the trial was continued by stipulation to January 13, 2004. On January 13, 2004, the court held a pretrial conference at which it was reported that the parties were negotiating a plea. On January 26, 2004, defendant filed a motion for reconsideration of the November 4^th order denying his motions to dismiss. On February 6, 2004, the district court entered an order denying the motion for reconsideration.

On April 5, 2004, defendant entered pleas of guilty to Counts 1 and 2 of the indictment pursuant to a plea agreement. On April 14, 2004, defendant was paroled from his state sentence, and was taken into federal custody at that time. On October 5, 2004, defendant was sentenced to a term of imprisonment of 70 months.

First Assignment of Error

Defendant argues in his first assignment of error that the district court erred in refusing to dismiss the indictment due to violations of the Speedy Trial Act and the Interstate Agreement on Detainers, specifically, the failure to provide him with information on how to demand a trial on the pending federal charges. In the alternative, defendant argues that the district court should have ordered that the sentence on the federal charges run retroactively concurrent with defendant's state sentence.

The Speedy Trial Act provides in relevant part:

(j)(1) If the attorney for the Government knows that a person charged with an offense is serving a term of imprisonment in any penal institution, he shall promptly—

(A) undertake to obtain the presence of the prisoner for trial; or

(B) cause a detainer to be filed with the person having custody of the prisoner and request him to so advise the prisoner and to advise the prisoner of his right to demand trial.

18 U.S.C. § 3161(j)(1). The Interstate Agreement on Detainers similarly provides:

(c) The warden, commissioner of corrections, or other official having custody of the prisoner shall promptly inform him of the source and contents of any detainer lodged against him and shall also inform him of his right to make a request for final disposition of the indictment, information, or complaint on which the detainer is based.

18 U.S.C. app. 2, § 2, art. III(c).

In this case, the Michigan Department of Corrections notified the Marshal's Service that the previous federal detainer had been lodged against the defendant, and that the defendant was serving a state sentence. However, the Marshal's Service neglected to inform the United States Attorney's Office of that fact, and as a result, Form USM-17, which contains language requesting the warden to advise the defendant of the pending charges and his right to demand a trial on those charges, was never sent to the state institution. The government concedes that because the Michigan prison officials were never asked to inform defendant that he had the right to request a trial on the federal charges, § 3161(j)(1) was violated.

The district court correctly held that dismissal of the indictment is not an appropriate remedy for a violation of § 3161(j). Numerous courts have so held. See, e.g., United States v. Walker, 255 F.3d 540, 542 (8th Cir.2001); United States v. Lainez-Leiva, 129 F.3d 89, 91 (2nd Cir. 1997); United States v. Guzman, 85 F.3d 823, 829 n. 4 (1st Cir.1996); United States v. Wickham, 30 F.3d 1252, 1255 (9^th Cir. 1994); United States v. Dawn, 900 F.2d 1132, 1135-36 (7th Cir.1990); United States v. Anderton, 752 F.2d 1005, 1008 (5th Cir.1985). This court has also held in an unpublished decision that dismissal of the indictment is not an available remedy for a violation of the notice provisions of § 3161(j). See United States v. Dahlquist, 993 F.2d 1547, 1993 WL 152073 (6th Cir. 1993).

The district court also correctly held that dismissal of the indictment is not an available remedy for a violation of the notice provision of the Interstate Agreement on Detainers. See United States v. Lualemaga, 280 F.3d 1260, 1265 (9th Cir. 2002); Walker, 255 F.3d at 542; United States v. Pena-Corea, 165 F.3d 819, 821-22 (11th Cir.1999); Lara v. Johnson, 141 F.3d 239, 243 (5th Cir.1998).

As to defendant's argument that the district court should have ordered that his federal sentence run concurrently with the state sentence which he had already served, defendant points to no provision in the Speedy Trial Act or the Interstate...