* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### DEC 18 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. JOAN MARIE YOUNG,

Defendant-Appellant. No. 97-1345 (D.C. 94-CR-169-N) (District of Colorado)

ORDER AND JUDGMENT *

Before TACHA , HENRY , and MURPHY , Circuit Judges.

Mrs. Young appeals her sentence after pleading guil ty to one count of possession of methamphetamine with intent to distri bute. She contends that the district court (1) violated her Sixth Amendment rig ht to a speedy trial; (2) erred by proceeding immediately to sentencing without req uiring a revised presentence report (PSR) or providing her with sufficient notic e; and erred under the2

Sentencing Guidelines by (3) granting an upward adj ustment for possession of firearms and (4) refusing to grant a downward adjus tment for acceptance of responsibility. We affirm.
A. BACKGROUND On August 5, 1994, Mrs. Young pleaded guilty with h er husband to one charge of possession with intent to distribute meth amphetamine, in violation of 21 U.S.C. 841(a)(1) and (b)(1)(B), and one charge of u sing and carrying a firearm during a drug trafficking offense, in violation of 18 U.S.C. §924(c). The Youngs were placed in a half-way house pending sentencing, but before they could be sentenced, they absconded. They were apprehended i n June, 1995. In July, both Youngs moved to withdraw their guilty pleas on bothcharges, and Mr. Young also moved for dismissal on double jeopardy grounds because his property involved in the alleged crime had been previously f orfeited. On September 22, 1995, the district court denied both motions to wit hdraw the guilty pleas but reserved ruling on Mr. Young’s double jeopardy moti on, citing the existing confusion in the law regarding civil forfeiture and double jeopardy. In December, 1995, the Supreme Court decided Bailey v. United States , clarifying that “using and carrying” a firearm duri ng a drug trafficking offense under 18 U.S.C. §924(c) requires the firearm's “act ive-employment.” 516 U.S. 137, 148 (1995). Mrs. Young filed a post- Bailey motion to dismiss her guilty plea as to her firearms charge. The government fil ed a response on January 26,3

1996, agreeing that it would be fair to allow her t o withdraw that plea, but the district court did not rule on the motion. In June, 1996, the Supreme Court decided United States v. Ursery , 518 U.S. 267 (1996), holding that civil in rem forfeitures w ere not punishment for purposes of the double jeopardy clause. Ursery provided clear precedent for the resolution of Mr. Young's outstanding motion to dismiss on dou ble jeopardy grounds but, nevertheless, in July, Mrs. Young petitioned to joi n her husband’s motion. Still, the district court did not rule on any of the Young s’ outstanding motions, nor did it reschedule their cases for sentencing. In December, 1996, Mrs. Young moved to set hearings on the outstanding motions and sentencing. Three months later, she mo ved to dismiss on the grounds that her Sixth Amendment speedy trial rights had be en violated. In July, 1997, she finally petitioned this court for a writ of man damus. We granted the writ on August 19, 1997, ordering the district court to rul e on pending motions within thirty days and to sentence defendants, “if then ap propriate.” In response, on September 4, 1997, the district cou rt granted Mrs. Young’s post- Bailey motion to withdraw her plea as to the firearms cha rge, dismissed the double jeopardy motion, and set her pending motion to dismiss for violation of her speedy trial rights for hearing on September 11 , 1997. It also issued an order returning the firearms seized by the government dur ing the search of the Youngs’ home to Mr. Young. At the September 11 hearing, th e district court denied Mrs.4

Young’s motion to dismiss, then proceeded immediate ly to sentencing. The court sentenced Mrs. Young to 137 months of confinement, plus five years of supervised release. We now turn to Mrs. Young’s fo ur alleged errors.

B. DISCUSSION 1. Sixth Amendment Right To A Speedy Trial Mrs. Young first argues that the 24 month delay between the trial court’s determination of her initial motion to withdraw herplea on September 22, 1995, and her final sentencing on September 11, 1997, vio lated her Sixth Amendment right to a speedy trial. We review de novo the dis trict court’s legal conclusions as to whether Mrs. Young established a violation of he r constitutional right to a speedy trial. United States v. Dirden , 38 F.3d 1131, 1135 (10th Cir. 1994). Because the right to a speedy trial is “a more vagu e concept than other procedural rights,” we approach speedy trial claims “on an ad hoc basis.” Barker v. Wingo , 407 U.S. 514, 521, 530 (1972). There are certain factors, however, that we consider: “[a] The length of delay, [b] the reas on for the delay, [c] the defendant's assertion of her right, and [d] prejudice to the defendant.” Perez v. Sullivan , 793 F.2d 249, 253 (10th Cir. 1986) (quoting Barker , 407 U.S. at 530). These factors are non-rigid guidelines, and “[n]o s ingle factor is ‘either a necessary or sufficient condition to the finding of a deprivation of the right of a5

speedy trial.’” Barker , 407 U.S. at 533. Here, in the post-conviction context, we consider the same factors but have previously notedthat in such cases, the “necessity of showing substantial prejudice would d ominate the four-part balancing test.” Perez , 793 F.2d at 256. a. Length of Delay If the length of the delay is “presumptively prejud icial,” the other three Barker factors are triggered. Perez , 793 F.2d at 254 (citing Barker , 407 U.S. at 530). While the parties dispute the exact length o f delay, the government concedes that it is “presumptively prejudicial” and triggers the Barker analysis. b. Reason for the Delay The parties agree that the unjustifiable delay at i ssue here resulted from the unexplained error of the district court, not a deli berate government attempt to delay the case. A neutral reason, such as “neglige nce or overcrowded courts,” should be given less weight than a deliberate government interference but nevertheless should still be weighed against the go vernment “since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant.” Barker , 407 U.S. at 531; see also Burkett v. Fulcomer , 951 F.2d 1431, 1440 (3d Cir. 1991) (holding that “admin istrative” failure to schedule hearing on motions for which administrator had “no explanation” weighed against government).6

c. Defendant's Assertion of Her Right Mrs. Young filed several motions requesting court a ction, and this court ultimately granted her a writ of mandamus. Mrs. Yo ung has asserted her speedy trial right. d. Prejudice Although a showing of prejudice is not necessary to find a speedy trial violation, we have expressed “great reluctance” to find a deprivation without such a showing. Perez , 793 F.2d at 256. In the post-conviction situatio n, the import of showing prejudice “dominate[s]” the Barker test because the traditional interests protected by the speedy trial guarantee are diminis hed once there has been a conviction. Id. (“[I]t might be said that once a defendant has bee n convicted it would be the rarest of circumstances in which the r ight to a speedy trial could be infringed without a showing of prejudice.”). The p rejudice claimed by the defendant must be “substantial and demonstrable.” Id. Here, Mrs. Young argues that she was prejudiced by pre-sentence anxiety, resulting from uncertainty regarding her sentence and evidenced by her need for an increased anti-depressant prescription. While t he delay certainly could have contributed to anxiety, the district court had alre ady denied her motion to withdraw her guilty plea on the drug charge, which carried a five-year mandatory minimum sentence. Thus, even after 24 months of in carceration, she had the7

certainty of having more than half of that minimum sentence still left to serve.
See 21 U.S.C. § 841 (a)(1), (b)(1)(B). The anxiety of one convicted and “unquestionably going to serve a sentence” is not e quivalent for “constitutional purposes” to the anxiety of one accused and awaiting trial. Perez , 793 F.2d at
257. Mrs. Young also argues that she was prejudiced by d iminished rehabilitative opportunities, because she was held for two years in the Denver County jail instead of a federal facility. We have , however, “decline[d] to attach Sixth Amendment speedy trial dimensions to amenitie s and benefits a convicted felon might receive in one prison but not another.” Id. (comparing a county jail to a federal penitentiary). Thus, Mrs. Young has n ot shown the “substantial and demonstrable” prejudice required to establish a Sixth Amendment violation in the more stringent post-conviction setting. In sum, although the first three Barker factors weigh in Mrs. Young’s favor, because she has not made a sufficient showin g of prejudice, we conclude that the delay in sentencing did not deprive her of a speedy trial. 2. Proceeding Immediately To Sentencing Mrs. Young next argues that the district court erre d by proceeding immediately to sentencing. After we granted Mrs. Y oung’s writ of mandamus, the district court set a hearing date, and issued a n order stating, “[t]he hearing8

will continue from day to day until the pending mot ions are heard and determined and, if applicable, the defendants are sentenced.” Minute Order, No. 94-CR 169- N. (Sept. 4, 1997). At the hearing, the district j udge first denied Mrs. Young’s motion to dismiss for speedy trial violation. Mrs. Young argues that the court then erred by proceeding immediately to sentencing (a) without requiring a revised presentence report (PSR) and (b) without su fficient notice to her under Fed. R. Crim. Pro. 32. a. Revised PSR First, Mrs. Young argues that the district court sh ould have required a revised PSR before proceeding to sentencing because of an earlier district court order that returned seized firearms to Mr. Young un der Rule 41(e). Rule 41(e) provides for the return of seized property if the c laimant is entitled to its “lawful possession.” Fed. R. Crim Pro. 41(e). Mrs. Young argues that, by returning the guns to her husband, the order established that he owned the guns, not her, thus changing the facts of the case so as to necessitate a revised PSR. See Order and Memorandum of Decision, No. 94 CR 169-N (Sept. 4, 1 997). Although Mrs. Young originally received her PSR in 1994, we apply the version of Rule 32 in effect at the time of Mrs. Young's sentencing in 1997. See United States v. Cureton , 89 F.3d 469, 472 (7th Cir. 1996) (holding that version of procedural rules in effect at time of sentencing governed) . Under this version,9

the court may, at the hearing, accept the PSR as it s findings of fact “[e]xcept for any unresolved objection under subdivision (b)(6)(B ).” Fed. R. Crim. Pro. 32(b)(6)(D). Under subdivision (b)(6)(B), the court must consider “any objections to any material information, sentencing classifications, sentencing guideline ranges, and material classifications cont ained in or omitted from the [PSR].” Id. at (b)(6)(B). Mrs. Young's objection regarding ownership of the w eapons does not, however, address any material information or senten cing classifications in the PSR. The PSR notes only the type and location of the guns found in the Youngs' house during the search, which Mrs. Young does not dispute, and makes sentencing recommendations on that basis. Accordin gly, the district judge was entitled to accept the PSR as its findings of fact. b. Sufficient Notice Under Rule 32 Mrs. Young also argues that she was not given suffi cient notice prior to her sentencing to comply with Rule 32. We review de no vo the interpretation of federal rules of criminal procedure. United States v. Roman-Zarate , 115 F.3d 778, 781 (10th Cir. 1997). In her brief, Mrs. Youn g cites to the 1994 version of Rule 32, in effect at the date on which her sentenc ing hearing was originally scheduled. She argues that under this notice requi rement, the district court should have allowed her additional time between its ruling on her motions and10

sentencing. Again, however, we must apply the version of Rule 3 2 in effect when Mrs. Young’s sentencing hearing actually occurred in 1997. See Cureton , 89 F.3d at 472. The 1997 version states that, “[n]ot less tha n 35 days before the sentencing hearing,” the probation officer “must furnish the p resentence report to the defendant [and] the defendant’s counsel. . . .” Fe d. R. Crim. Proc. 32(b)(6)(A). These requirements are met here because on Septembe r 14, 1994, Mrs. Young was sent a PSR listing the potential areas to be consid ered for upward departure and, on January 29, 1996, she was notified of the govern ment’s intention to seek an upward adjustment for firearms possession if she wa s allowed to withdraw her plea as to the firearms charge. These recommendati ons were consistent with the stand the government ultimately took at sentencing. The fact that the intervening period between Mrs. Young's receipt of the PSR and her sentencing was two years does not change our analysis, because nothing sugge sted any change in the government's position. Further, she does not prese nt a credible argument that she was prejudiced by this sentencing. Thus, Mrs. Youn g's notice argument fails. 3. Upward Adjustment for Possession of Firearms Mrs. Young next argues that the district court erre d in giving her an upward adjustment for possession of firearms under § 2D1.1 (b)(1) of the Sentencing Guidelines. We review the district court’s factual determinations at sentencing11

for clear error. United States v. Roberts , 980 F.2d 645, 647 (10th Cir. 1992). In order to sustain an upward adjustment for firearms possession, the government has the initial burden of proving “that a dangerous weapon was possessed during the commission of the offense.” Id. The government can meet this burden even by presenting “no evidence other than proximity to suggest the gun was connected to the offense.” Id. Once the government has met its burden, the defen dant can rebut by presenting evidence showing that it is “cl early improbable” that the gun was connected to the offense. Id. ; see also U.S.S.G. § 2D1.1 cmt. n. 3. Here, the government showed that during the search, Mrs. Young was in the midst of a drug transaction and that three guns wer e found in the same room. Nine other weapons were found throughout the house, including four other loaded revolvers and pistols, and a loaded AK-47 in a clos et. This proximity is sufficient to demonstrate possession and to shift the burden of rebuttal to Mrs. Young. She rebuts that the connection between the offense and the weapon was clearly improbable in light of the district court’s earlier Rule 41(e) order returning seized firearms to Mr. Young, because it established that he owned the weapons, not her, and that the guns were not used i n furtherance of any crime.
See Order and Memorandum of Decision (D. Colo. Sept. 4 , 1997). She presented no additional evidence at the hearing. Without more, Mrs. Young has not met her burden. F irst, she argues that12

the court's return of the guns to Mr. Young establi shed that he owned the weapons, but, as the sentencing enhancement turns o n possession, not ownership, her argument is inapposite. Second, the court's decision that Mr. Young was ent itled to lawful possession under 41(e) establishes at most that the guns were not “used” in furtherance of a crime. As the sentencing enhancem ent turns only on possession, not use, again, the 41(e) ruling does not foreclose imposition of the enhancement. Cf. United States v. Goddard , 929 F.2d at 546, 548 (10th Cir.1991)) (The standard for conviction under 18 U.S.C. § 924(c) for “use” o f a weapon “is much higher than that necessary for enhancement under the Guide lines.”). Finally, in evaluating whether Mrs. Young has shownthe connection between the guns and the offense to be highly impro bable, we consider the “temporal and spatial relation [that exists] betwee n the weapon, the drug trafficking activity, and the defendant.” United States v. Flores , 149 F.3d 122, 1280 (10th Cir. 1998). Three guns were found in th e same room where the drug transaction took place. Thus, the district court d id not clearly err in refusing to find the connection between the guns and the offens e clearly improbable, nor in granting the upward adjustment under § 2D1.1. 4. Downward Adjustment for Acceptance of Responsibi lity Finally, Mrs. Young argues that the district court erred in refusing to grant13

her a downward adjustment for acceptance of respons ibility under U.S.S.G. §3E1.1. Acceptance of responsibility is a factual determination reviewed for clear error. United States v. Hawley , 93 F.3d 682, 688 (10th Cir. 1996). The sentencing judge is given “great deference on revie w” because of his “unique position to evaluate a defendant’s acceptance of responsibility.” Id. at 689 (quoting U.S.S.G. § 3E1.1, cmt. n. 5). A defendant’s offense level may be reduced by two l evels if she “clearly demonstrates acceptance of responsibility.” U.S.S. G. § 3E1.1. But, “[c]onduct resulting in an enhancement under § 3C1.1 (Obstruct ing or Impeding the Administration of Justice) ordinarily indicates that the defendant has not accepted responsibility for his criminal conduct.” U.S.S.G. § 3E1.1, cmt. n. 4. Escaping from custody before sentencing demonstrates obstruction of justice. United States
v. Amos , 984 F.2d 1067, 1072-73 (10th Cir. 1993). Here, the district court noted that Mrs. Young escaped from the half-way house whe re she had been placed pending sentencing. Further, while entry of a plea of guilty prior to c ommencement of trial can evidence acceptance of responsibility, it may be “o utweighed by conduct of the defendant that is inconsistent with such acceptance of responsibility.” Hawley , 93 F.3d at 689 (quoting U.S.S.G. 3E1.1, cmt. n. 3). H ere, the district court found that Mrs. Young’s attempt to withdraw her guilty pl ea also demonstrated her lack14

of acceptance of responsibility. For these reasons, the district court did not clearly err in denying the § 3E1.1 adjustment. But Mrs. Young argues that her situation is an “extraordinary case” exception to § 3E1.1, because her actions inconsist ent with acceptance of responsibility were motivated by opposition only to the firearms charge, not the methamphetamine charge. See U.S.S.G. § 3E1.1 cmt. n. 4 (there may be “extraordinary cases” in which adjustments under bo th obstruction of justice and acceptance of responsibility apply). Her argument, however, is not persuasive when her return for sentencing was not voluntary, and when she subsequently moved to withdraw her plea on both charges. Regard less of her subjective intentions, her actions did not “clearly demonstrat e” that she had accepted responsibility on either charge, much less that her s was an “extraordinary case” deserving the reduction. Thus, the district court did not clearly err in refusing to grant Mrs. Young the § 3E1.1 reduction. See Hawley , 93 F.3d at 689 (rejecting “extraordinary case” claim holding that “[c]onduct amounting to escape . . . is certainly evidence of failure to accept responsibil ity, and this fact alone provides adequate foundation for the district court’s decisi on”). Accordingly, we AFFIRM the judgment of the districtcourt.15

The mandate shall issue forthwith. ENTERED FOR THE COURT,

Robert H. Henry Circuit Judge