United States v. Roderick Vickers ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JUNE 16, 2009
No. 08-11408 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-80191-CR-DTKH
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RODERICK VICKERS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(June 16, 2009)
Before CARNES, WILSON and ANDERSON, Circuit Judges.
PER CURIAM:
Roderick Vickers, convicted of illegal possession of a firearm by a convicted
felon, in violation of 18 U.S.C. § 922(g), appeals the district court’s denial of his
motion to dismiss the indictment based on pre-indictment and post-indictment
delay, when he claimed he asserted his right to a speedy trial. Vickers also argues
that the district court erred in finding that the firearm he possessed was used in
connection with a homicide. Vickers lastly contends that his trial counsel was
ineffective. For reasons set forth below, we affirm.
A.
We review a district court’s refusal to dismiss an indictment for
pre-indictment delay for an abuse of discretion. United States v. Foxman, 87 F.3d
1220, 1222 (11th Cir. 1996). “The limit on pre-indictment delay is usually set by
the statute of limitations. But, the Due Process Clause can bar an indictment even
when the indictment is brought within the limitation period.” Id. at 1222. For
dismissal to be proper, a defendant must show that pre-indictment delay caused
him actual, substantial prejudice and that the government intentionally delayed
prosecuting the case in order to gain a tactical advantage over the accused. Id.
Although actual prejudice is a necessary element of a due process claim, it is not,
standing alone, sufficient to support dismissal. United States v. Lovasco, 431 U.S.
783, 790, 97 S. Ct. 2044, 2048-49, 52 L. Ed. 2d 752 (1977).
Regarding post-indictment delay, we review de novo the district court’s
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denial of a defendant’s motion to dismiss based on the Speedy Trial Act, 18 U.S.C.
§ 3161, et seq., or upon the Sixth Amendment right to a speedy trial. United States
v. Harris, 376 F.3d 1282, 1286 (11th Cir. 2004).
In determining whether a defendant’s constitutional right to a speedy trial
has been violated, we must consider: (1) the length of the delay; (2) the cause of
the delay; (3) the defendant’s assertion of his right to a speedy trial; and (4) the
presence or absence of prejudice resulting from the delay. Barker v. Wingo, 407
U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972); see also United States v. Ingram,
446 F.3d 1332, 1336 (11th Cir. 2006). Unless the first three factors all weigh
heavily against the government, the defendant must demonstrate actual prejudice.
United States v. Mitchell, 769 F.2d 1544, 1547 (11th Cir. 1985).
A delay attributable to negligence is weighted less heavily than a deliberate
delay, but still counts against the government. United States v. Dennard, 722 F.2d
1510, 1513 (11th Cir. 1984). When the investigation was not performed diligently,
however, it weighs heavily against the government. Ingram, 446 F.3d at 1339-40
(holding that a two-year delay weighed heavily against the government when the
arresting officer knew where the defendant lived and worked and made only weak
efforts to contact the defendant).
A defendant has no duty to bring himself to trial. Ingram, 446 F.3d at 1337.
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Where the defendant did not know of the indictment until arrest, however, he may
promptly assert his right to a speedy trial after arrest, and it weighs heavily against
the government. Id. at 1340. A defendant may invoke the right to a speedy trial
after indictment, information, other formal charge, or upon “arrest and holding to
answer a criminal charge.” Dillingham v. United States, 423 U.S. 64, 65, 96 S. Ct.
303, 304, 46 L. Ed. 2d 205 (1975).
In the situation where the government has placed a detainer on the
defendant, the Interstate Agreement on Detainers Act (“IADA”) provides that the
defendant shall be brought to trial within 180 days after delivery of his speedy trial
request has been delivered to the prosecutor and court. Fex v. Michigan, 507 U.S.
43, 47-48, 52, 113 S. Ct. 1085, 1089, 1091, 122 L. Ed. 2d 406 (1993) (expressly
rejecting the contention that it was the defendant’s transmittal of a speedy trial
request to prison authorities that initiated the 180-day period even if that request
was lost in the mail or was not delivered to the prosecuting agency).
“Although compliance with the Speedy Trial Act does not bar Sixth
Amendment speedy trial claims, ‘it will be an unusual case in which time limits of
the Speedy Trial Act have been met but the Sixth Amendment right to a speedy
trial has been violated,’” as the Barker factors underlie a speedy trial constitutional
claim. United States v. Twitty, 107 F.3d 1482, 1490 (11th Cir. 1997).
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“To trigger a speedy trial analysis, an accused must allege that the interval
between [the indictment] and trial has crossed the threshold dividing ordinary from
presumptively prejudicial delay.” Ingram, 446 F.3d at 1336. “Only if this
threshold point is satisfied may the court proceed with the final three factors in the
Barker analysis.” United States v. Clark, 83 F.3d 1350, 1352 (11th Cir. 1996).
“Delays exceeding one year are generally found to be ‘presumptively prejudicial.’”
Ingram, 446 F.3d at 1336; see also United States v. Otero-Hernandez, 743 F.2d
857, 858 n.3 (11th Cir. 1984) (noting that a seven-month delay is not
“presumptively prejudicial” within the meaning of the test for a speedy trial
violation).
Pursuant to the Speedy Trial Act:
In any case in which a plea of not guilty is entered, the trial of a
defendant charged in an information or indictment with the
commission of an offense shall 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) (emphasis added). “However, the Act excludes from the
computation of the 70 days ‘any period of delay resulting from other proceedings
concerning the defendant, including but not limited to . . . delay resulting from any
pretrial motion, from the filing of the motion through the conclusion of the hearing
on, or other prompt disposition of, such motion.’” Harris, 376 F.3d at 1288
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(quoting 18 U.S.C. § 3161(h)(1)(F)) (brackets omitted).
Here, under the doctrine of invited error, we are precluded from reversing a
district court error, if any, that was made in denying Vickers’s pre-indictment delay
claim or his Speedy Trial Act violation claim because he conceded to the court that
he had no such claims and invited the district court to focus only on his
constitutional right to a speedy trial. See United States v. Ross, 131 F.3d 970, 988
(11th Cir. 1997) (“It is a cardinal rule of appellate review that a party may not
challenge as error a ruling or other trial proceeding invited by that party.”).
Even if we did not view the invited error doctrine as applicable, we would
still conclude that the court did not abuse its discretion because the indictment was
returned within the statute of limitations, and Vickers failed to provide evidence of
actual, substantial prejudice or that any pre-indictment delay was intended to gain a
tactical advantage.
Regarding his post-indictment delay claims, Vickers failed to show that he
was presumptively prejudiced by the delay and although the court was not
obligated to touch upon the other Barker factors, Vickers nevertheless failed to
show that the cause of the delay was improper, that the government received his
request for a speedy trial, or that he was actually prejudiced.
B.
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We review a “district court’s application and interpretation of the sentencing
guidelines under the de novo standard of review . . . [and] its findings of fact for
clear error.” United States v. Rhind, 289 F.3d 690, 693 (11th Cir. 2002). We will
not find clear error unless we are “left with a definite and firm conviction that a
mistake has been committed.” United States v. Crawford, 407 F.3d 1174, 1177
(11th Cir. 2005)(internal quotation and citation omitted).
If a defendant used or possessed a firearm “in connection with the
commission or attempted commission of another offense,” and death resulted, then
the sentencing guidelines direct that the homicide guideline under § 2A1.1 should
be applied. U.S.S.G. § 2K2.1(c)(1)(B). The phrase “in connection with” is not
defined by U.S.S.G. § 2K2.1(c). However, we have interpreted this phrase
expansively, finding that it reflects the context of the defendant’s possession.
Rhind, 289 F.3d at 695 (interpreting the phrase “in connection with” in the context
of U.S.S.G. § 2K.1(b)(5) and applying it in case where defendants drove a car
during their crime spree that contained firearms). In addition, we have held that
the firearm does not have to facilitate the underlying offense. Id.
When the district court states that it would have imposed the same sentence
regardless of the advisory guideline calculations, we may assume error and review
whether the ultimate sentence is supported by the § 3553(a) factors. United States
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v. Keene, 470 F.3d 1347, 1349 (11th Cir. 2006).
Here, the evidence showed that Vickers murdered someone with the firearm.
That is clearly in connection with the offense of possession of a firearm.
Additionally, Vickers’s 120-month sentence was reasonable because the record
shows that the court adequately reviewed the § 3553(a) factors and Vickers’s
criminal history and circumstances and determined that a 120-month sentence
promoted respect for the law, reflected the seriousness of the offense, provided just
punishment, and protected the public from a person with a very violent criminal
history.
C.
To the extent that Vickers received ineffective assistance of counsel, such a
claim is not cognizable on direct appeal, unless the record is sufficiently
developed. Massaro v. United States, 538 U.S. 500, 508, 123 S. Ct. 1690, 1696,
155 L. Ed. 2d 714 (2003); see also United States v. Merrill, 513 F.3d 1293, 1308
(11th Cir. 2008); United States v. Verbitskaya, 406 F.3d 1324, 1337 (11th Cir.
2005). We decline to address ineffective assistance of counsel in this appeal.
Accordingly, we affirm Vickers’s conviction and sentence.
AFFIRMED.
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