U.S. v. Thomas

Decision Date16 March 1995
Docket NumberNo. 93-3867,93-3867
Citation49 F.3d 253
Parties41 Fed. R. Evid. Serv. 1024 UNITED STATES of America, Plaintiff-Appellee, v. Garland D. THOMAS, Sr., Defendant-Appellant.
CourtU.S. Court of Appeals — Sixth Circuit

David A. Sierleja, Office of the U.S. Atty., Cleveland, OH (briefed), for plaintiff-appellee.

Lawrence J. Whitney, Sr., Burdon & Merlitti, Akron, OH (briefed), for defendant-appellant.

Before: JONES and RYAN, Circuit Judges; BERTELSMAN, Chief District Judge. *

RYAN, J., delivered the opinion of the court, in which BERTELSMAN, D.J., joined. NATHANIEL R. JONES, J. (pp. 261-63), delivered a separate dissenting opinion.

RYAN, Circuit Judge.

A jury convicted defendant, Garland Thomas, Sr., on one count of distributing cocaine base, in violation of 21 U.S.C. Sec. 841(a)(1), and one count of possession of cocaine base with intent to distribute, also in violation of 21 U.S.C. Sec. 841(a)(1). Thomas now appeals, raising five assignments of error: whether Thomas's right to a speedy trial was denied; whether the district court erred in admitting into evidence a sawed-off shotgun; whether the district court erred in calculating the quantity of drugs for sentencing purposes; whether the trial court erred in failing to depart downward from the sentencing guidelines; and whether, by prohibiting departures to avoid disparate sentencing, the sentencing guidelines violate the Sixth and Fourteenth Amendments.

We affirm the district court's decision on all five issues.

I.

On November 25, 1992, Daniel Gain, a confidential informant for the Lake County, Ohio, Narcotics Agency, purchased 220 milligrams of crack cocaine from Thomas. At the time of the purchase, Gain wore a body transmitter and was monitored by members of the Painesville, Ohio, Police Department. Later that same day, Gain purchased another small quantity of crack from Thomas.

On December 3, 1992, Gain contacted Thomas and arranged to purchase one-half ounce of crack. Gain met Thomas in the parking lot of a closed ice cream store, where he completed the transaction and purchased 4.17 grams of crack. Gain was again monitored by officers of the Painesville Police Department. Immediately after the sale, the officers arrested Thomas, and upon searching him, found an additional 2.15 grams of crack, as well as $550 in cash, a knife, and a pager. The officers transported him to the police station, where the officers read him his rights. Thomas signed a waiver of rights form and agreed to talk to the officers. He told them that he first sold crack approximately three months before his arrest in order to support his drug habit. He admitted that he sometimes used a sawed-off shotgun when selling drugs to protect himself from other dealers. Thomas did not, however, bring the weapon to the December 3 sale. Thomas cooperated with the officers and arranged for them to seize the gun.

On January 21, 1993, a three-count indictment was returned charging Thomas with two counts of distributing crack cocaine, and one count of possession with intent to distribute. On February 2, 1993, a superseding indictment was filed correcting defendant's name, but which, in all other respects, was identical to the original indictment. Thomas was arraigned on February 3, 1993, and entered not guilty pleas as to all counts.

Thomas's trial began April 29, 1993, and was concluded the next day when the jury returned guilty verdicts with respect to Counts 1 and 3, and a not guilty verdict with respect to Count 2. Later, the district court sentenced Thomas to 110 months imprisonment, to be followed by four years supervised release. Thomas now appeals.

II.
A. Speedy Trial

The Speedy Trial Act, 18 U.S.C. Sec. 3161 et seq., governs the permissible time lapse between the indictment or first appearance of an accused and his trial. Absent certain circumstances, which are outlined in section 3164, the government must bring a defendant to trial within 70 days. Section 3161(h) mitigates the stringency of this rule by excluding certain dates from the 70-day time frame. If section 3164 applies, the relevant time frame is 90 days, excluding the same days discussed in section 3161(h).

Thomas first contends that he was not brought to trial within the 70 days required by section 3161. The government disagrees and contends that Thomas was tried 69 days after his arraignment. Thomas's first appearance was on February 3, 1993. His trial commended April 29, 1993. Eighty-four days lapsed during this time period. The dispute in this case is over the number of days that are excludable from the speedy trial clock under section 3161(h).

The government argues that fifteen days can be excluded due to pretrial motions. The government, however, arrives at this figure by counting too many days for the motion filed February 12 and the one filed March 15. It is the law in this circuit that only actual days elapsed between the filing of the motion and its disposition are counted. For example, if a motion is filed April 30 and resolved on May 2, two days are excluded from the speedy trial clock. See United States v. Bowers, 834 F.2d 607, 609 (6th Cir.1987).

This circuit does not include the date a motion was filed in the calculation, unless that date was also the date an order was entered resolving the motion. Thomas filed a pretrial motion on February 12, which was resolved on February 16, for a lapse of four days. Thomas's March 15 motion was resolved on March 16, for a lapse of only one day. Thus, these two motions resulted in five excludable days, as opposed to the government's count of seven. Assuming the government has correctly counted the other days, 1 71 days elapsed between Thomas's first appearance and the commencement of his trial. Clearly, then, Thomas was not brought to trial within 70 days. Accordingly, to avoid a Speedy Trial Act violation, the government must establish that the 90 day clock set forth in section 3164 applies to this case.

Section 3164 provides:

(a) The trial or other disposition of cases involving--

(1) a detained person who is being held in detention solely because he is awaiting trial, and

(2) a released person who is awaiting trial and has been designated by the attorney for the Government as being of high risk,

shall be accorded priority.

(b) The trial of any person described in subsection (a)(1) or (a)(2) of this section shall commence not later than ninety days following the beginning of such continuous detention or designation of high risk by the attorney for the Government. The periods of delay enumerated in section 3161(h) are excluded in computing the time limitation specified in this section.

18 U.S.C. Sec. 3164.

In 1985, Thomas was convicted in a California state court of voluntary manslaughter. He was paroled in 1991, and allowed to relocate to Ohio. On January 20, 1993, after Thomas's arrest on the instant charges, the California Interstate Parole Unit lodged a detainer against Thomas with the U.S. Marshal's Service. Thomas argues that, as a result of this detainer, he was not, with respect to his case, in custody "solely awaiting trial" and, therefore, section 3164 does not extend his speedy trial clock.

The resolution of this issue turns on the answer to two questions. First, what does the language "solely awaiting trial" mean? Second, why would Congress make these cases a "priority" and then create a longer speedy trial clock for them? Very little case law exists on this question. The only possibly relevant case we know of is a Fifth Circuit opinion discussing the relationship between a local "speedy trial" plan (known as the Rule 50(b) plan) and the Speedy Trial Act. The Act apparently became effective sometime during the course of the proceedings against the defendant. The Fifth Circuit stated:

The Government argues that the Speedy Trial Act applies, because it superseded the old Rule 50(b) plan on September 29, 1975, with respect to custodial and high-risk defendants. See 18 U.S.C. Sec. 3164. The difficulty with the Government's argument is that section 3164, insofar as it relates to the instant case, pertains to "detained persons who are being held in detention solely because they are awaiting trial." However, one of the reasons for [the defendant's] detention, according to the August 5 magistrate's order, was that there was a request from another district to hold [the defendant] for another crime. Therefore, we cannot say that he was being held solely because he was awaiting trial, and we apply the original Rule 50(b) plan.

United States v. Wyers, 546 F.2d 599, 601 n. 2 (5th Cir.1977) (citation omitted). The Fifth Circuit case addresses a somewhat different situation than is presented here, and also fails to offer any analysis in support of its conclusion. Most particularly, the detention order in the present case does not mention the California detainer. Thus, we do not find Wyers to be very helpful.

Finding no instructive case law, we turn to the legislative history, not because the statute is ambiguous or needs "interpretation" or "construction," but merely to help us to better understand the rationale for Congress's clear but somewhat puzzling command. When the Speedy Trial Act became law in early January 1975, the statute contained different effective dates for various provisions. The 70 day clock did not take effect until July 1, 1976. The purpose of the delay was to allow courts, prosecutors, and defense attorneys time to prepare to implement the new system. Congress was especially concerned, however, with pretrial detainees who were in custody only awaiting trial, and for no other purpose. As a result of this concern, Congress included section 3164 in the Speedy Trial Act. As originally enacted, however, section 3164 was an interim provision. It took effect on October 1, 1975, and created the 90 day clock for pretrial detainees who, if it were not for the pending charges, would not be in custody. This...

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