United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 96-3166

___________ United States of America, * * Appellee, * * Appeal from the United States v. * District Court for the * Eastern District of Missouri. Mark A. Geralds, * * [UNPUBLISHED] Appellant. *

___________ Submitted: June 24, 1997 Filed: July 17, 1997

___________ Before BOWMAN, WOLLMAN, and BEAM, Circuit Judges.

___________ PER CURIAM.
Mark A. Geralds challenges his conviction and th e 360-month sentence imposed by the District Co urt after he ente red a conditional guilty plea to attempting t o poss ess powder cocaine with intent to distribute, i n viol ation of 21 U.S.C. §§ 841(a)(1), 846 (1994). W e affirm Geralds’s conviction, but remand for r esentencing.
First, Geralds argues that his right to a speed y trial w as violated. The record reveals the followin g relevan t procedural history. On September 8, 1996, a-2-

hea ring on miscellaneous pre-trial motions was hel d before a magistrate judge; on the same date,-3-

Gerald s moved to dismiss for a violation of the Speed y 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, th e magi strate judge issued an order disposing of the pre

trial motions and a separate report recommend ing that the motio n to dismiss be denied. Geralds objected to th e 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 basedon the Act, whi chthe District Court denied, and he entered a cond itional guilty plea, preserving his right to appea l the speedy-trial issue.

Under t he Act, a federal criminal defendant must b e brought to trial within seventy days from the filing o f the indictment or from arraignment, whichever is later , subje ct to a number of exclusions. See 18 U.S.C. § 3161 (c)(1), (h) (1994). Geralds contends that seventy

four non-excludable days had elapsed when he pleade d guilt y, based on his belief that the period betwee n October 9 and October 20, 1996 was not excludable

. Alth oughthe magistrate judge took longer than thirt y days to rule on the pre-trial motions, we conclude tha t the period up to and including October 12 was excludable, because Geralds’s motion to dismiss was not taken unde r advisement until the government filed its response brief
on O ctober 4, and the magistrate judge ruled on thi s motion well within the thirty-day advisement period. See 18 U .S.C. § 3161(h)(1)(F),( J) (1994) (excluding “dela y resu lting from any pretrial motion, from the filing o f the mot ion through the conclusion of the hearing on, o r othe r prompt disposition of, such motion,” and “dela y-4-

reas onablyattributable to any period, not to excee d thir tydays, during which any proceeding concerning th e defe ndant 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 unde r advisement until court has all materials need ed to rule). The period between the magistrate judge’s report an d Gera lds’s filing of his objections to that report als o wa s excludable. See Long , 900 F.2d at 1275

. Acco rdingly, the entire period between October 9 an d October 20 was excludable.-5-

Second, Geralds argues for the first time on appea l that the District Court erred when it accepte d his guilty plea prior to the preparation of a presentence report

. Gera lds relies on U.S. Sentencing Guidelines Manual § 6B1.1(c) (1995) (policy statement) (stating t hat district court shall defer decision to accept or reject ple a agreement until after presentence report is reviewed) , but his reliance incorrectly equates acceptance of hi s guilty plea with acceptance of his plea agreement. Se e 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 th e incl usion of more than 500 grams of crack cocaine a s re levant conduct is not a fair and just reason fo r withdrawin g a guilty plea. See United States v. Ludwig , 972 F.2d 948, 949-51 (8th Cir. 1992).
Finally, Geralds challenges the District Court’ s rele vant-conduct findings. We agree with Geralds tha t these findings were flawed. After one judge hear d sharplyconflicting sentencing testimony regarding dru g quan tityand relevant conduct, the case was transferre d to a second judge; the second judge did not c onduct a new sentencing hearing, but rather made credibilit y determinations based only on a review of the sentencin g tran script. As a result of these credibilit y determinations, the second judge overruled Geralds’ s objections to the presentence report and sent enced him to 360 mo nths in prison. We believe that the conflictin g 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 t o-6-

make credibility determinations than we would be. Cf

. United States v. Ballew , 40 F.3d 936, 942 (8t h Cir. 1994) (rec ognizing that credibility of witnesses is for trie r of fact to determine), cert. denied , 514 U.S. 109 1 (1995); United States v. Noland , 960 F.2d 1384, 1390-9 1 (8th Cir. 1992) (noting that district court’s factua l findings are to be accepted as true unless clearl y erroneous with due regard being given to opportunity o f
cour t to judge credibility of witnesses; holding tha t reco rd supported findings of trial judge, who ha d opportunityto observe character and demeanor o f wi tnesses). We do not say that the second judge' s credibility-7-

determinations were wrong. Rather, we say on ly that they were not r eached in a manner that enables us confidently to a pply the clear error standard of review to them

. Thus, we r emand for resentencing before either the first judge, who already has heard the testimony re garding drug quan tityand relevant conduct, or the second judge (o r any other judge) who has the opportunity to hear th e testimo nyof the witnesses. In light of this decision , we do n ot consider the merits of the relevant-conduc t find ings or of Geralds’s argument concerning the burde n of pr oof the second judge applied in reaching thes e findings.
Accordingly, we affirm Geralds’s conviction, bu t remand for resentencing in a manner consistent with this opinion.
A true copy.

Attest:
CLERK, U. S. COURT OF APPEALS, EIGHT H CIRCUIT.