United States Court of Appeals,

Eleventh Circuit.

No. 95-3084.

Non-Argument Calendar.

UNITED STATES of America, Plaintiff-Appellee,

v.

Carlos MOSQUERA, Defendant-Appellant.

July 31, 1996.

Appeal from the United States District Court for the Middle

District of Florida. (No. 94-152-CR-Orl-22), Anne C. Conway, Judge.

Before TJOFLAT, Chief Judge, and HATCHETT and BLACK, Circuit

Judges.

PER CURIAM:

Appellant Carlos Mosquera was originally indicted on November

3, 1994, on one count of conspiracy to possess with intent to

distribute cocaine in violation of 21 U.S.C. § 846. He was

arrested on November 8, 1994. Appellant proceeded to trial, and

after a hung jury, the district court declared a mistrial on March

16, 1995. On March 23, 1995, the Government filed a superseding

indictment which included additional charges. Appellant proceeded

to trial on the superseding indictment on May 15, 1995, and was

convicted of conspiracy to possess with intent to distribute

cocaine in violation of 21 U.S.C. § 846, possession with intent to

distribute cocaine in violation of 21 U.S.C. § 841(a)(1) and 18

U.S.C. § 2, and use of a communication facility in the commission

of a felony in violation of 21 U.S.C. § 843(b). He was sentenced

to 78 months' imprisonment and 4 years' supervised release.

Mosquera appeals his convictions and sentence.
 1

Appellant's attempt to distinguish Wilson is not

convincing. That a mistrial due to a hung jury may have occurred

in the instant case is not relevant to whether a superseding

indictment may issue more than 30 days after original indictment

and arrest. 

 Appellant contends the superseding indictment was issued more

than 30 days after his original indictment and arrest in violation

of the Speedy Trial Act, 18 U.S.C. § 3161(b), and must therefore be

dismissed under 18 U.S.C. § 3162(a)(1). A superseding indictment

that issues more than 30 days after the arrest, but before the

original indictment is dismissed, does not violate § 3161(b).

United States v. Orbino, 981 F.2d 1035, 1037 (9th Cir.1992), cert.

denied, 510 U.S. 893, 114 S.Ct. 256, 126 L.Ed.2d 208 (1993).

[T]he Speedy Trial Act does not guarantee that an arrested

individual indicted within thirty days of his arrest must, in

that thirty day period, be indicted for every crime known to

the government, failing which he may never be charged. In

short, the Speedy Trial Act is not a statute of limitations.

... [The applicable statute of limitations] specifies the

time within which an arrested indicted defendant may be

charged with additional crimes by superseding indictment.

United States v. Wilson, 762 F.Supp. 1501, 1502 (M.D.Ga.1991).1

 It

is undisputed that the charges brought in the superseding

indictment are within the applicable five-year statute of

limitations.

 Appellant's reliance on United States v. Van Brandy, 563

F.Supp. 438 (S.D.Cal.1983), is misplaced. In Van Brandy, the

district court dismissed counts added in a superseding indictment

where the government was in possession of all facts needed to

proceed with the superseding indictment, but did not file the

superseding indictment until the eve of trial. 563 F.Supp. at 441.

Contrary to Appellant's contention, the record reveals that the
 2

Further, we note that the Double Jeopardy Clause does not

prohibit the issuance of a superseding indictment after a

mistrial, even if it alters, adds, or deletes charges. United

States v. Corona, 804 F.2d 1568, 1570-71 (11th Cir.1986), cert.

denied, 481 U.S. 1017, 107 S.Ct. 1896, 95 L.Ed.2d 503 (1987). 

Government did not file the superseding indictment on the "eve of

trial" as in Van Brandy, but filed it almost two months before

retrial. Therefore, no Speedy Trial Act violation has occurred,

and Appellant's argument is without merit.2

 Appellant argues that insufficient evidence exists to support

his convictions. Although sufficiency of the evidence is a

question of law subject to de novo review, in doing so, we must

view the evidence in the light most favorable to the Government to

determine whether the jury could have found the defendant guilty

beyond a reasonable doubt. United States v. Morin, 33 F.3d 1351,

1352 (11th Cir.1994). "The Court need not exclude every reasonable

hypothesis of innocence or find guilt to be the only reasonable

conclusion." Id. (quoting United States v. Garcia, 13 F.3d 1464,

1473 (11th Cir.), cert. denied, --- U.S. ----, 114 S.Ct. 2723, 129

L.Ed.2d 847 (1994)). Viewing the evidence in the light most

favorable to the Government, we conclude that a reasonable jury

could find that the evidence establishes Appellant's guilt on each

charge beyond a reasonable doubt.

 Appellant contends the district court erred in attributing 4

kilograms of cocaine to him in sentencing and in failing to

sentence him as a minimal participant, rather than as a minor

participant, under U.S.S.G. § 3B1.2. We review a sentencing

court's determination of the quantity of drugs involved in a

conspiracy for clear error. United States v. Alston, 895 F.2d
1362, 1369 (11th Cir.1990). A sentencing court's determination of

the defendant's role as a "minor" or "minimal" participant in an

offense is also reviewed for clear error. Id. Having reviewed the

record, we find no error on the part of the district court.

AFFIRMED.