[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

________________________ No. 15

- 12389 Non

- Argument Calendar

________________________ D.C. Docket No. 1:14

- cr - 20129

- JLK

- 1
UNITED STATES OF AMERICA, Plaintiff

- Appellee,

versus MARIO TAVAROUS YOUNG, Defendant

- Appellant.

_______________________ _ Appeal from the United States District Court for the Southern District of Florida

________________________ (December 22, 2016) Before HULL , WILSON and WILLIAM PRYOR , Circuit Judges.
PER CURIAM:
Th e key issue in th is appeal is whether a district court can deem waived a n accused ’s right to a speedy trial unless he objects promptly and makes a written

Case: 15-12389 Date Filed: 12/22/2016 Page: 1 of 92 demand for a trial within the 70

- day period mandated by the Speedy Trial Act of 1974 , 18 U.S.C. § 3161(c)(1). A pretrial order that s c heduled Mario Tavarous Young ’s criminal trial after the statutory period warned that t he district court would “deem [ Young’ s right to a] speedy trial to be waived unless . . . [he] otherwise notif[ed] the [district] court within ten (10) days . . . that [he] object[ed] to []his trial date and in sist[ed], in writing, on a trial date within the Speedy Trial Act deadlines.” Young did not object , but b efore trial, he mo ved to dismiss his indictment for failure to comply with the Act

. S ee id

. § 3162(a)(2) . T he district court denied Young’s motion b ased on the waiver provision in i t s pretrial order , and a jury convicted Young of possessin g with intent to distribute cocaine base , 21 U.S.C. § 841(a)(1) , and possessing a firearm as a felon , 18 U.S.C. §§ 922(g)(1), 924(e)(1). B ecause an accused “ may not prospectively waive the application of the
Act ,” Zedner v. United States , 547 U.S. 489, 500 (2006) , the district court erred by denying Young’s motion to dismiss his indictment

. We vacate Young’s convictions and remand for the district court to determine w hether to dismiss Young’s indictment with or without prejudice. I. BACKGROUND On March 4, 2014, a grand jury indicted Young for three offenses related to his possession of drugs and a firearm. See 21 U.S.C. § 841(a)(1); 18 U.S.C. § § 922(g), 924(e)(1), 924(c)(1)(A)(i). On March 7, 2014, the district court issue d a

Case: 15-12389 Date Filed: 12/22/2016 Page: 2 of 93 scheduling order that set Young’s trial for June 23, 2014 . The order also stated that, if “the scheduled trial date . . . [was] set beyond the time limits of the Speedy Trial Act , ” the district court would “deem speed y trial to be waived unless the parties ” gave notice “ within ten (10) days . . . that they object [ed] to this trial date and insist [ed] , in writing, on a trial date within the Speedy Trial Act deadlines.” On
Ma rch 14, 2014, the dist rict court arraigned Young and appointed him counsel

. On June 11, 2014, defense counsel filed a n unopposed motion to continue the trial. The district court granted the motion and issued an order that rescheduled Young’s trial for September 8, 2014

. That o rder i ncluded ano the r warning abo ut the waiver of right s under the Speedy Trial Act

. On August 20, 2014, Young filed pro se a motion to dismiss his indictment

. Young argued that the scheduling of his trial o n June 23, 2014, which was 101 days a f te r his arraignment , violat ed the Act un d er Zedner , 547 U.S. 489 . The government respond ed that Young was not entitled to dismissal because he failed
to object and demand an earlier trial date , as require d in the pretrial order

. A magistrate judge held an evidentiary hearing and recommended that the district court deny Young’s motion to dismiss. The magistrate judge determin ed that “[a]sking for a continuance because the defense would not have been prepared for trial was in effect a waiver of the right to r equire the government to bring

Case: 15-12389 Date Filed: 12/22/2016 Page: 3 of 94 [Young] to trial within 70 days of his first appearance

. ” The magistrate judge ruled that Young’s request for a continuance rendered moot hi s m otion to dismiss

. D efense counsel objected to the recommendation. Counsel argued t here was no waiver because Young had demanded his full panopoly of rights during arraignment and because the 70

- day deadline in the Act expired before h e moved for a continuance. The government rep li ed that the defense could not request dismissal of the indictment based on a violation of the Act a fter having represented that it was unprepared for trial. The district court den ied Young’s motion to dismiss. The district court stated that it tried “to comply in spirit with the Speedy Trial Act” and that counsel was obligated t o “pay attention” to the notice in the scheduling order and make “an object ion to the fact that [trial] may be ” after the speedy trial deadline

. The district
court also stat ed that “it was self

- evident” that it had gran ted a continuance “in the interest of justice” and that “no defense counsel could object to the granting of [its] motion even [if the trial had been] set . . . beyond the 70 days [when] it was done for the purpose of giving the defendant time . . . to cond uct the investigation [] and to complete preparations” for trial. A jury convicted Young of possessin g with intent to distribute cocaine base , 21 U.S.C. § 841(a)(1) , and possessing a firearm as a felon , 18 U.S.C. §§ 922(g)(1),

Case: 15-12389 Date Filed: 12/22/2016 Page: 4 of 95 924(e)(1). The district court sentenced Young to 180 months of imprisonment. This appeal followed

.

II. STANDARD OF REVIEW We review de novo the denial of a motion to dismiss based on a violation of the Speedy Trial Act . United States v. Mathurin , 6 90 F.3d 12 36 , 12 39 (11th Cir.
20 12 ). III. DISCUSSION Zedner controls this appeal. In that decision , t he Supreme Court held that the trial deadline in the Speedy Trial Act cannot be enlarged by “ mere consent or waive r” of a defendant

. 547 U.S. at 500. The Act mandates th at, after a defendant enters a plea of not guilty, his trial “shall commence within seventy days ” of the filing of his indictment or his appearance before a judge, whichever is later. 18 U.S.C. § 3161(c)(1). Although there are “numerous categories of delay that are not counted in applying the . . . deadline[],” the Act “specifies [those exclusions] in detail.” Zedner , 547 U.S. at 500. The district court violated the Act by schedul ing Young’s trial past the
spe edy trial deadline. Th e 70

- day period commenced running after Young’s appearance hearing on March 14, 2 014, and expired on May 23, 2014, which was a month before Young’s trial date

. Although Young filed a motion for an extension

Case: 15-12389 Date Filed: 12/22/2016 Page: 5 of 96 on June 11 , 2014, that moti on could not have tolled the speedy trial deadline because it had already expired. S ee Tinker v. Moore , 255 F.3d 1331, 1333 (11th Cir. 2001) (holding, in habeas corpus context, that a n otherwise properly

- filed application cannot toll the federal limitation s period “when there is no period remaining to be tolled ”).
I n Zedner , the Supreme Court rul ed that “ a defendant may not prospectively waive the application of the Act” and that a delay attributable to a continuance
cannot be excluded from the speedy trial deadline by “mere consent or waiver.”
547 U.S. at 500. Th e Act “comprehensively regulates the time within which a trial must begin” and “[c]onspicuously . . . has no provision excluding periods of delay during which a defe ndant waives [its] application.” Id. T h at statutory “ omission was a considered one.” Id. Congress withheld defendants’ ability to make prospective waivers to fulfil the dual purposes of the Act : to safeguard defendant s against undue delay s in their trial s and to protect society by ensuring that criminal cases are resolved quickly. Id. at 500

– 51; see Barker v. Wingo , 407 U.S. 514, 519

– 22 (1972) (describing the dual interests of the Speedy Trial Clause of the Sixth Amendment). If a defendant were empowered to waive the trial deadline, the Court

reason ed, it would vitiate the protections afforded society by speedy justice, which includes lessening the opportunity for recidivism during pretrial release and preserving “the deterrent effect of punishment.” Zedne r , 547 U.S. at 501 , 502

.

Case: 15-12389 Date Filed: 12/22/2016 Page: 6 of 97 The district court “deem[ed] speedy trial to be waived unless the parties . . . object[ed] . . . and insist[ed] . . . on a trial date within the Speedy Trial Act deadlines , ” but w hether a district court presumes waiver or exact s a waiver from the defendant is a distinction without difference

. Both practices circumvent the strict procedural requirements to be undertaken under the Act

. See 18 U.S.C. § 3161(h). And, in so doing, both pr actic es disserve the interest of the public in efficient justice. See also Barker , 407 U.S. at 526

– 2 8 ( “ reject [ ing ] . . . the rule that a defendant who fails to demand a speedy trial forever waives his right” because it , in part, disserves “society[’s] . . . particular interest in bringing swift
prosec utions”). Courts are obligated to comply with the language of the Act when setting trial dates, not simply, as the district court professed, to “comply in spirit with the Act.” The district court, which admittedly scheduled trials “90 days instead of 70 da ys, or 71 days instead of 70,” failed to comply with the dictates of the Act. Young could have waived his right to the dismissal of his indictment for a violation of the Act, 18 U.S.C. § 316 2 (a)(2), but he did not do so. Young timely moved for dismissal of his indictment before his trial commenced. See id. The government argues that Young is estopped from obtaining a dismissal of his indictment, but we disagree

. The doctrine of estoppel bars a party from assuming inconsistent positions during an action to benefit his cause. Zedner , 547

Case: 15-12389 Date Filed: 12/22/2016 Page: 7 of 98 U.S. at 504. Like the defendant in Zedner , Young did not “succeed in persuading the District Court to accept the proposition that prospective waivers of Speedy Trial Act rights are valid.” Id. at 505 (internal quotation marks and brackets omitted). T he district court affected a waiver of Young’s right to a speedy trial

. And Young’s motion for a continuance , made after the speedy tri al deadline had expired , was not “clearly inconsistent with the position that he now takes in seeking dismissal of the indictment.” See id. (internal quotation marks omitted). Young did not move to exceed the speedy trial deadline and did not make a request that was contrary to his later position that the district court violated the Act by

s cheduling his trial after the speedy trial deadline

. Young is not estopped from moving to dismiss his indictment. The district court erred by denying Young’s motion to dismiss his indictment. The Act mandates that , when a trial does not begin within the speedy trial deadline, the information or indictment must be dismissed on the defendant’s motion. 18 U.S.C. § 3162(a )(2). Although the district court enjoys “great discretion to make decisions concerning trial schedules and to respond to abuse and delay where appropriate,” the Act “confines the exercise of that discretion . . . [and] mandat[es] dismissal of the indictme nt upon violation of [its] precise time limits.” United States v. Taylor , 487 U.S. 326, 34 3

– 44 (1988).

Case: 15-12389 Date Filed: 12/22/2016 Page: 8 of 99 Young’s right to a speedy trial was violated, which requires us to vacate his convictions and remand for the district court to dismiss the indictment , b ut that dismissal may be with or without prejudice. See 18 U.S.C. § 3162(a)(2). The Act provides criteria to guide the district court in determining whether to permit or bar reprosecution. The district court “shall consider , among others, each of the following factors: the seriousness of the offense; the facts and circumstances of the case which led to the dismissal; and the impact of a reprosecution on the administration of this chapter and on the administration of justice

. ” Id. Because we vacate Young’s convictions, we need not address his arguments about the enhancement of his sentence under the Armed Career Criminal Act. IV. CONCLUSION
We VACATE Young’s convictions and REMAND for the district court to dismiss Young’s indictment.

Case: 15-12389 Date Filed: 12/22/2016 Page: 9 of 9