UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 00-4325

WAAJID PIERCE,

Defendant-Appellant. 

Appeal from the United States District Court

for the Southern District of West Virginia, at Charleston.

Charles H. Haden II, Chief District Judge.

(CR-99-157)

Submitted: February 28, 2001

Decided: March 23, 2001

Before NIEMEYER, MICHAEL, and GREGORY, Circuit Judges.

Affirmed by unpublished per curiam opinion. 

COUNSEL

Mary Lou Newberger, Acting Federal Public Defender, George H.

Lancaster, Jr., Assistant Federal Public Defender, Charleston, West

Virginia, for Appellant. Rebecca A. Betts, United States Attorney,

Samuel D. Marsh, Assistant United States Attorney, Charleston, West

Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c). 

OPINION

PER CURIAM: 

Waajid Pierce appeals his convictions and sentence, pursuant to a

guilty plea, for conspiracy to distribute and possess with intent to distribute cocaine base, in violation of 21 U.S.C.A. § 846 (West Supp.

2000), and possession with the intent to distribute cocaine base, in

violation of 21 U.S.C.A. § 841(a)(1) (West 1999). On appeal, Pierce

argues that the district court erred in denying his motion to dismiss

the indictment based upon pre-indictment delay that he alleges violated his Sixth Amendment right to a speedy trial, and that his fiveyear term of supervised release violates the principles of Apprendi v.

New Jersey, 120 S. Ct. 2348 (2000). Finding no error, we affirm. 

Pierce argues that the seventeen month delay between the time the

federal complaint and arrest warrant issued and the date of his arrest

violates his Sixth Amendment right to a speedy trial. We find that

Pierce’s right to a speedy trial was not triggered until he had actually

been arrested by federal authorities. We have held that "[t]he speedy

trial right does not apply to . . . pre-indictment delay because that

right does not attach until the defendant has been indicted or

arrested." Jones v. Angelone, 94 F.3d 900, 906 n.6 (4th Cir. 1996).

The Supreme Court has held that the "Sixth Amendment right of the

accused to a speedy trial has no application beyond the confines of

a formal criminal prosecution." Doggett v. United States, 505 U.S.

647, 655 (1992). The Sixth Amendment protection is triggered by

arrest, indictment, or other official accusation. Id. In United States v.

Marion, 404 U.S. 307, 321 (1971), the Court "decline[d] to extend the

reach of the amendment to the period prior to arrest." We thus find

that the time period Pierce argues was impermissible pre-indictment

delay is not protected by the Sixth Amendment provision for a speedy

trial. Therefore, the district court did not err in denying the motion to

dismiss the indictment. 

2 UNITED STATES v. PIERCE
Next, Pierce argues that his five-year supervised release term

exceeded that allowable under § 841(b)(1)(C), and therefore violates

Apprendi. Pierce did not raise this issue in the district court, therefore

it is reviewed for plain error. United States v. Olano, 507 U.S. 725

(1993). Pierce was sentenced under the penalty provisions of

§ 841(a)(1)(A), because the court attributed 124 grams of cocaine

base to him. Under § 841(b)(1)(A), the minimum term of supervised

release is five years. Pierce argues that because the drug amount was

not charged in the indictment, the term of supervised release imposed

should be under § 841(b)(1)(C). The minimum term of supervised

release under that section is three years. 

This court recently rejected a similar argument, holding that "where

a statute’s mandatory minimum term of supervised release is the same

as, or exceeds, § 3583’s maximum terms, § 3583’s maximum terms

do not apply." Pratt, 2001 WL 101457, at *7 (4th Cir. Feb. 7, 2001).

Thus, Pierce’s five-year supervised release term does not exceed the

maximum term of supervised release provided in § 841(b)(1)(C) and

does not run afoul of Apprendi. Id. He therefore has shown no plain

error. Pratt, 2001 WL 101457, at *6. 

We therefore affirm the judgment. We dispense with oral argument

because the facts and legal contentions are adequately presented in the

materials before the court and argument would not aid the decisional

process.

AFFIRMED

UNITED STATES v. PIERCE 3