United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 96-3166

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United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the

* Eastern District of Missouri.

Mark A. Geralds, *

* [UNPUBLISHED]

Appellant. *

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 Submitted: June 24, 1997

 Filed: July 17, 1997

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Before BOWMAN, WOLLMAN, and BEAM, Circuit Judges.

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PER CURIAM.

Mark A. Geralds challenges his conviction and the

360-month sentence imposed by the District Court after he

entered a conditional guilty plea to attempting to

possess powder cocaine with intent to distribute, in

violation of 21 U.S.C. §§ 841(a)(1), 846 (1994). We

affirm Geralds’s conviction, but remand for resentencing.

First, Geralds argues that his right to a speedy

trial was violated. The record reveals the following

relevant procedural history. On September 8, 1996, a
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hearing on miscellaneous pre-trial motions was held

before a magistrate judge; on the same date,
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Geralds moved to dismiss for a violation of the Speedy

Trial Act (the “Act”), 18 U.S.C. §§ 3161-3174 (1994). On

October 4, with leave of court, the government responded

to Geralds’s motion to dismiss. On October 12, the

magistrate judge issued an order disposing of the pretrial motions and a separate report recommending that the

motion to dismiss be denied. Geralds objected to the

report on October 20, and the District Court adopted the

magistrate judge’s report on October 26. On December 27,

Geralds filed another motion to dismiss based on the Act,

which the District Court denied, and he entered a

conditional guilty plea, preserving his right to appeal

the speedy-trial issue.

Under the Act, a federal criminal defendant must be

brought to trial within seventy days from the filing of

the indictment or from arraignment, whichever is later,

subject to a number of exclusions. See 18 U.S.C. §

3161(c)(1), (h) (1994). Geralds contends that seventyfour non-excludable days had elapsed when he pleaded

guilty, based on his belief that the period between

October 9 and October 20, 1996 was not excludable.

Although the magistrate judge took longer than thirty

days to rule on the pre-trial motions, we conclude that

the period up to and including October 12 was excludable,

because Geralds’s motion to dismiss was not taken under

advisement until the government filed its response brief

on October 4, and the magistrate judge ruled on this

motion well within the thirty-day advisement period. See

18 U.S.C. § 3161(h)(1)(F),( J) (1994) (excluding “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,” and “delay
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reasonably attributable to any period, not to exceed

thirty days, during which any proceeding concerning the

defendant is actually under advisement by the court”);

United States v. Long, 900 F.2d 1270, 1274-75 (8th Cir.

1990) (recognizing that matter is not taken under

advisement until court has all materials needed to rule).

The period between the magistrate judge’s report and

Geralds’s filing of his objections to that report also

was excludable. See Long, 900 F.2d at 1275.

Accordingly, the entire period between October 9 and

October 20 was excludable. 
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Second, Geralds argues for the first time on appeal

that the District Court erred when it accepted his guilty

plea prior to the preparation of a presentence report.

Geralds relies on U.S. Sentencing Guidelines Manual §

6B1.1(c) (1995) (policy statement) (stating that district

court shall defer decision to accept or reject plea

agreement until after presentence report is reviewed),

but his reliance incorrectly equates acceptance of his

guilty plea with acceptance of his plea agreement. See

United States v. Hyde, 117 S. Ct. 1630, 1632-33 (1997).

 Moreover, the fact that the sentence recommended in his

PSR substantially exceeded his expectations due to the

inclusion of more than 500 grams of crack cocaine as

relevant conduct is not a fair and just reason for

withdrawing a guilty plea. See United States v. Ludwig,

972 F.2d 948, 949-51 (8th Cir. 1992).

Finally, Geralds challenges the District Court’s

relevant-conduct findings. We agree with Geralds that

these findings were flawed. After one judge heard

sharply conflicting sentencing testimony regarding drug

quantity and relevant conduct, the case was transferred

to a second judge; the second judge did not conduct a new

sentencing hearing, but rather made credibility

determinations based only on a review of the sentencing

transcript. As a result of these credibility

determinations, the second judge overruled Geralds’s

objections to the presentence report and sentenced him to

360 months in prison. We believe that the conflicting

testimony presented credibility issues serious enough to

warrant sentencing by a judge who had had the opportunity

to observe the character and demeanor of the witnesses,

and that the second judge was in no better position to
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make credibility determinations than we would be. Cf.

United States v. Ballew, 40 F.3d 936, 942 (8th Cir. 1994)

(recognizing that credibility of witnesses is for trier

of fact to determine), cert. denied, 514 U.S. 1091

(1995); United States v. Noland, 960 F.2d 1384, 1390-91

(8th Cir. 1992) (noting that district court’s factual

findings are to be accepted as true unless clearly

erroneous with due regard being given to opportunity of

court to judge credibility of witnesses; holding that

record supported findings of trial judge, who had

opportunity to observe character and demeanor of

witnesses). We do not say that the second judge's

credibility
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determinations were wrong. Rather, we say only that they

were not reached in a manner that enables us confidently

to apply the clear error standard of review to them.

Thus, we remand for resentencing before either the first

judge, who already has heard the testimony regarding drug

quantity and relevant conduct, or the second judge (or

any other judge) who has the opportunity to hear the

testimony of the witnesses. In light of this decision,

we do not consider the merits of the relevant-conduct

findings or of Geralds’s argument concerning the burden

of proof the second judge applied in reaching these

findings.

Accordingly, we affirm Geralds’s conviction, but

remand for resentencing in a manner consistent with this

opinion.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH

CIRCUIT.