* Pursuant to 5TH CIR. 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this opinion should not be published and is not precedent except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 5TH CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

October 20, 2004

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 03-11206

Summary Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

LINDY RAY MATTHEWS,

Defendant-Appellant.

--------------------

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 4:02-CR-5-1-Y

--------------------

Before GARZA, DeMOSS, and CLEMENT, Circuit Judges.

PER CURIAM:*

Lindy Ray Matthews appeals his conviction of mail fraud, a

violation of 18 U.S.C. § 1341, and his 60-month prison sentence. 

 Matthews contends that the district court erred in denying

his pro se March 27, 2002, motion to dismiss based on preindictment delay. Although nearly five years passed between the

alleged commission of the offense and Matthews’s May 2000

indictment, Matthews has failed to establish that the delay was

intentionally brought about by the Government “‘for the purpose
No. 03-11206 

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of gaining some tactical advantage over the accused . . . or some

other bad faith purpose’” or that the delay “‘caused actual,

substantial prejudice to his defense.’” See United States v.

Avants, 367 F.3d 433, 441 (5th Cir. 2004) (quoting United States

v. Couch, 84 F.3d 1497, 1523 (5th Cir. 1996) (en banc)). His

references to unavailable witnesses and misplaced documents are

vague and speculative. See Couch, 84 F.3d at 1515. Matthews has

not established that the denial of the motion to dismiss was

based on clear error. United States v. Jimenez, 256 F.3d 330,

334 (5th Cir. 2001).

Matthews argues that the district court erred in denying his

pro se motion to dismiss under the Speedy Trial Act (“STA”), 18

U.S.C. § 3161 et seq. The 70-day STA period was triggered when

Matthews was permitted to withdraw his guilty plea on May 22,

2001. See 18 U.S.C. § 3161(c)(1), (i). The district court

correctly concluded that the period stopped running after 29

days, on June 21, 2001, when Matthews moved for the substitution

of counsel, and that the subsequent continuance until September

17, 2001, was excluded under the STA, based on the necessity of

Matthews’s new attorney to prepare for trial. See 18 U.S.C. 

§ 3161(h)(8)(A). That the district court set forth no

contemporaneous reasons for this continuance was not fatal to the

exclusion of this time, because the court subsequently offered

reasons for the continuance when it denied Matthews’s motion to

dismiss. See United States v. Bieganowski, 313 F.3d 264, 283
No. 03-11206 

-3-

(5th Cir. 2002), cert. denied, 538 U.S. 1014 (2003). As Matthews

has not challenged the exclusion of any delays after October 29,

2001, he has not shown that the district court clearly erred in

denying his motion to dismiss. United States v. De La PenaJuarez, 214 F.3d 594, 597 (5th Cir. 2000). 

Matthews contends that, under the Sentencing Guidelines, the

district court erred in attributing three criminal-history points

each to four prior convictions to which he entered pleas and for

which he was sentenced on the same date to concurrent prison

terms. He argues that these four convictions, along with three

others, should have been deemed “related” for purposes of

U.S.S.G. § 4A1.2(a)(2) and should have been assigned a combined

total of only three points. Matthews fails to acknowledge that

the district court alternatively ruled that, even if Matthews’s

challenge to the counting of criminal-history points was

technically correct, his criminal-history score significantly

underrepresented his criminal past and that an upward departure

was appropriate. Accordingly, any challenge to this alternative

ruling is waived. See United States v. Fagan, 821 F.2d 1002,

1015 n.9 (5th Cir. 1987) (arguments not briefed are deemed

waived); United States v. McSween, 53 F.3d 684, 687 n.3 (5th Cir.

1995) (court may affirm on any ground supported by record);

see also Brinkmann v. Dallas County Deputy Sheriff Abner, 813

F.2d 744, 748 (5th Cir. 1987). In any event, Matthews has failed

to establish that the district court erred in deeming the four
No. 03-11206 

-4-

prior convictions unrelated under U.S.S.G. § 4A1.2(a)(2). See

United States v. Robinson, 187 F.3d 516, 519 (5th Cir. 1999).

After briefing was complete, attorney Steven Rozan filed a

motion to withdraw as Matthews’s counsel and to stay the

proceedings to permit Matthews to find a new attorney. Matthews

has filed two pro se “Omnibus Motions” in which he urges this

court either to substitute new counsel for Rozan or to allow him

to file pro se supplemental pleadings. Neither Rozan nor

Matthews has established a “conflict of interest or other most

pressing circumstances” warranting the substitution of counsel. 

See FIFTH CIRCUIT PLAN UNDER THE CJA, § 5(B). To the extent that

Matthews seeks to file pro se materials, his request that the

court approve “hybrid” representation is not well-taken. See

United States v. Ogbonna, 184 F.3d 447, 449 & n.1 (5th Cir.

1999); 5TH CIR. R. 28.7. The motions filed by Rozan and Matthews

are thus DENIED.

AFFIRMED; MOTIONS DENIED.