United States v. Lopez , 313 F. App'x 730 ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 11, 2009
No. 07-40376
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
JOEL LOPEZ, SR
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:03-CR-857-6
Before KING, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
Joel Lopez, Sr., was convicted, following a jury trial, of conspiracy to
possess with intent to distribute more than 1,000 kilograms of marijuana, five
kilograms or more of cocaine, and 50 grams or more of methamphetamine;
possession with intent to distribute 330 kilograms of marijuana; possession with
intent to distribute 460 kilograms of marijuana; possession with intent to
distribute 714 kilograms of marijuana; and conspiracy to launder monetary
*
Pursuant to 5 TH C IR. R. 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited
circumstances set forth in 5 TH C IR. R. 47.5.4.
No. 07-40376
instruments. Lopez received a life sentence. Proceeding pro se, he argues that
he was denied his right to a speedy trial. He further contends that the district
court abused its discretion and violated his due process rights by not ruling on
his pro se motion to dismiss the indictment based on a violation of the Speedy
Trial Act.
Prior to trial, Lopez filed a pro se motion to dismiss pursuant to the
Speedy Trial Act. However, as Lopez acknowledges, he was represented by
counsel at the time he filed the motion. A criminal defendant does not have the
right to “hybrid representation.” United States v. Ogbonna, 184 F.3d 447, 449
& n.1 (5th Cir. 1999). As such, Lopez’s pro se motion to dismiss was an
unauthorized motion and the district court properly disregarded it.
The Speedy Trial Act states that “[f]ailure of the defendant to move for
dismissal prior to trial . . . shall constitute a waiver of the right to dismissal
under this section.” 18 U.S.C. § 3162(a)(2). In Zedner v. United States, 547 U.S.
489, 502-03 (2006), the Supreme Court held that § 3162(a)(2) does not allow a
prospective waiver but does require a defendant to assert the right before trial,
in part, to “ensure[e] that an expensive and time-consuming trial w[ould] not be
mooted by a late-filed motion.” In light of the statute’s plain language and its
purpose, as recognized by the Court, Lopez waived any right to dismissal under
the Speedy Trial Act by his failure to properly move for dismissal prior to trial.
Accordingly, the judgment of the district court is AFFIRMED.
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