United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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Nos. 04-3357/3358

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United States of America,

Appellee/Cross-Appellant,

v.

Francisco Lozano,

Appellant/Cross-Appellee.

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Appeals from the United States

District Court for the

District of Nebraska.

 [PUBLISHED]

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Submitted: March 15, 2005

 Filed: June 29, 2005 (corrected 7/13/05)

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Before WOLLMAN, LAY, and HANSEN, Circuit Judges.

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HANSEN, Circuit Judge.

Francisco Lozano was charged with a drug conspiracy in the United States

District Court for the Northern District of Iowa. After a series of events detailed

below, he was charged with a drug conspiracy and two counts of drug distribution in

the United States District Court for the District of Nebraska, and the indictment in the

Northern District of Iowa was dismissed on the government’s motion. Pursuant to

a negotiated plea agreement, Lozano pleaded guilty to the two Nebraska distribution

charges, and the Nebraska conspiracy charge was dismissed. The district court

sentenced him to 116 months in prison and five years of supervised release.
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Lozano appeals his convictions and sentence. The government cross-appeals

his sentence. For the reasons discussed below, we affirm Lozano’s convictions, but

we vacate his sentence and remand the case to the district court for resentencing.

I.

A grand jury in the Northern District of Iowa returned an indictment on July

17, 2001, charging Lozano with conspiring to distribute 500 grams or more of

methamphetamine mixture from 1999 through February 20, 2001. On April 25, 2002,

the grand jury returned a superseding indictment charging him with conspiring to

distribute a pound of methamphetamine mixture containing 50 grams or more of pure

methamphetamine from February 2000 through February 20, 2001.

Lozano pleaded guilty to the superseding indictment on May 7, 2002. The

district court deferred acceptance of his guilty plea pending its review of the

presentence report (PSR). Before sentencing, Lozano moved to withdraw his guilty

plea. The district court denied his motion. On August 26, 2002, the district court

sentenced Lozano to 160 months in prison and five years of supervised release.

Lozano appealed the district court’s denial of his motion to withdraw his guilty

plea, and this court reversed. Because the amended version of Federal Rule of

Criminal Procedure 11(d) had gone into effect, allowing a defendant to withdraw his

guilty plea “for any reason or no reason” before the district court formally accepted

his plea, this court concluded that the district court should not have required Lozano

to show a “fair and just reason” to withdraw his plea. See United States v. Lozano,

63 Fed. Appx. 962, 963 (8th Cir. 2003) (unpublished).

After remand, Lozano moved to dismiss the indictment on October 14, 2003,

alleging a speedy trial violation. The district court had taken no action on this motion

by October 24, 2003, when the government moved to dismiss the indictment, noting
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that Lozano had just been indicted in the District of Nebraska for related conduct. On

October 28, 2003, the district court granted the government’s motion.

On October 23, 2003, a grand jury in the District of Nebraska had returned an

indictment charging Lozano with three crimes. First, he was charged with the same

offense he had been charged with in the Northern District of Iowa: conspiring to

distribute a pound of methamphetamine mixture containing 50 grams or more of pure

methamphetamine from February 2000 through February 20, 2001. Second, he was

charged with distributing 50 grams or more of methamphetamine mixture on February

15, 2001. Third, he was charged with distributing 50 grams or more of

methamphetamine mixture on February 20, 2001.

On February 11, 2004, Lozano moved to dismiss the indictment, alleging a

speedy trial violation. The district court denied his motion. Lozano pleaded guilty

on May 28, 2004, to the two distribution charges. In the written plea agreement, the

parties stipulated that he would be held responsible for 50-150 grams of actual

methamphetamine, his base offense level would be 32, and he would receive a threelevel reduction for acceptance of responsibility. The government agreed to dismiss

the conspiracy charge. In the plea agreement, Lozano reserved the right to raise

speedy trial issues on appeal.

Prior to sentencing, Lozano filed a motion arguing that the United States

Sentencing Guidelines were unconstitutional in light of Blakely v. Washington, 124

S. Ct. 2531 (2004). At sentencing, the district court refused to declare the Guidelines

unconstitutional in their entirety, but the court did conclude that Blakely applied to

the Guidelines and precluded the two-level enhancement for obstruction of justice

recommended by the PSR because it was based on facts beyond those Lozano had

admitted. The effect of this ruling was to reduce his Guidelines imprisonment range

to 121-151 months rather than the 151-188 months recommended by the PSR. The

district court granted Lozano a five-month downward departure to reflect time served
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from February 20 through July 17, 2001, and sentenced him to 116 months in prison

and five years of supervised release.

Lozano appeals, arguing that the district court erred by denying his motion to

dismiss the indictment for a speedy trial violation and by failing to declare the

Guidelines unconstitutional as a whole in light of Blakely. The government crossappeals, arguing that Lozano should have received an enhancement for obstruction

of justice. We address each matter in turn.

II.

Lozano first argues that the Speedy Trial Act was violated. The speedy trial

clock was reset to 70 days and began running anew when the United States District

Court for the Northern District of Iowa received this court’s mandate from Lozano’s

prior appeal. See 18 U.S.C. § 3161(e). Our focus is on what happened subsequently.

Lozano is correct that the Speedy Trial Act prevents the government from

continuously resetting the speedy trial clock by dismissing and refiling indictments

against the same defendant for the same offense. The defendant is protected by “the

rule that when an indictment . . . is dismissed at the motion of the government and a

second charge is filed for the same offense, the time between the dismissal and the

second charge is excluded but not the time before the dismissal.” United States v.

Long, 900 F.2d 1270, 1274 n.2 (8th Cir. 1990) (emphasis omitted) (citing 18 U.S.C.

§ 3161(h)(6)). Section 3161(h)(6) excludes the following time from the 70-day

period: 

If the information or indictment is dismissed upon motion of the

attorney for the Government and thereafter a charge is filed against the

defendant for the same offense, or any offense required to be joined with

that offense, any period of delay from the date the charge was dismissed

to the date the time limitation would commence to run as to the

subsequent charge had there been no previous charge.
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18 U.S.C. § 3161(h)(6) (emphasis added).

Because one of the charges brought against Lozano in the District of Nebraska

was the same as the charge brought against him in the Northern District of Iowa--

conspiring to distribute a pound of methamphetamine mixture containing 50 grams

or more of pure methamphetamine from February 2000 through February 20, 2001--

the speedy trial clock that began running in Iowa continued running in Nebraska as

to the conspiracy charge. Lozano was not convicted of the conspiracy charge,

however; it was dismissed pursuant to his plea agreement when he pleaded guilty to

the two distribution charges. Given that the remedy for a Speedy Trial Act violation

is dismissal of the charge in question, and the conspiracy charge has already been

dismissed, Lozano cannot demonstrate prejudice and has no viable claim.

Turning to the distribution charges, it is clear that they are not the “same

offense” as the conspiracy charge within the meaning of § 3161(h)(6). For Speedy

Trial Act purposes, the substantive offense of drug distribution is different from the

inchoate offense of conspiring to distribute drugs. See United States v. Brown, 183

F.3d 1306, 1314-15 (11th Cir.), cert. denied, 528 U.S. 1066 (1999). It does not matter

if the offenses arise from the same underlying facts; it matters only that they require

proof of different elements. See id. It is also clear that the distribution charges are

not “offense[s] required to be joined with” the conspiracy charge within the meaning

of § 3161(h)(6). See United States v. Rein, 848 F.2d 777, 780 (7th Cir. 1988).

Thus, because the conspiracy charge was dismissed and Lozano was convicted

only of the distribution charges, and the 70-day speedy trial clock for the distribution

charges ran for no more than 49 non-excludable days, we conclude that Lozano is

entitled to no relief under the Speedy Trial Act.

Next, Lozano argues that even if his statutory right to a speedy trial was not

violated, his constitutional right to a speedy trial was violated. Again, we look only
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 See id. at 769 (“In respondent Fanfan’s case, the District Court held Blakely

applicable to the Guidelines. It then imposed a sentence that was authorized by the

jury’s verdict--a sentence lower than the sentence authorized by the Guidelines as

written. Thus, Fanfan’s sentence does not violate the Sixth Amendment.

Nonetheless, the Government (and the defendant should he so choose) may seek

resentencing under the system set forth in today’s opinions. Hence we vacate the

judgment of the District Court and remand the case for further proceedings consistent

with this opinion.”).

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to the charges for which he was actually convicted, not the dismissed charges. The

period between Lozano’s indictment and guilty plea in the District of Nebraska was

slightly less than seven months. We have previously held that “a little over seven

months” was “too brief a delay to trigger review of [a defendant’s] Sixth Amendment

speedy trial claim.” United States v. McFarland, 116 F.3d 316, 318 (8th Cir.) (citing

Doggett v. United States, 505 U.S. 647, 651-52 & n.1 (1992)), cert. denied, 522 U.S.

961 (1997). Thus, given the shorter delay in the case at bar, we conclude that Lozano

is entitled to no relief under the Speedy Trial Clause of the Sixth Amendment.

III.

Both Lozano and the government raise Blakely-based challenges to the

sentence imposed by the district court. The United States Supreme Court decided

United States v. Booker, 125 S. Ct. 738 (2005), after briefing was completed, and that

decision makes clear that both parties are entitled to resentencing because the district

court applied an incorrect remedy. The remedy applied by the district court was to

treat the Guidelines as mandatory but limit its consideration to the facts admitted by

the defendant; the remedy prescribed by Booker is to treat the Guidelines as advisory

and not be limited to the facts admitted by the defendant.1

 Accordingly, we remand

for resentencing under Booker’s remedy.
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IV.

Accordingly, we affirm Lozano’s convictions, but we vacate his sentence and

remand this case to the district court for resentencing consistent with Booker.

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