F I L E D

United States Court of Appeals

Tenth Circuit

MAR 28 2005

PATRICK FISHER

Clerk

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee/ 

Cross-Appellant,

v. Nos. 03-4059 & 03-4108

HECTOR CANO-SILVA, also known

as Hector Manuel CanoSilva, Hector

Cano, and Hector Silva-Cano,

Defendant-Appellant/

Cross-Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF UTAH

(D.C. Nos. 2:02-CR-396-PGC & 2:01-CR-720-S)

Vicki Mandell-King, Assistant Public Defender (Michael G. Katz, former Federal

Public Defender, and Raymond P. Moore, Federal Public Defender, with her on

the briefs), Denver, Colorado, for Appellant/Cross-Appellee.

Michael S. Lee, Assistant United States Attorney (Paul M. Warner, United States

Attorney, with him on the briefs), Salt Lake City, Utah, for Appellee/CrossAppellant.

Before SEYMOUR , MURPHY , and McCONNELL , Circuit Judges.

McCONNELL , Circuit Judge.
1

 While it is clear from the record that counsel agreed to the continuance

and exclusion of time from computation under the Act, Defendant disputes

whether he approved, or was even aware of, his lawyer’s acquiescence in the

continuation of the trial.

2

Defendant Hector Cano-Silva appeals the district court’s decision to

dismiss the indictment against him without prejudice after finding a violation of

the Speedy Trial Act. The government cross-appeals the district court’s

determination that Mr. Cano-Silva’s activities warranted a minor-participant

adjustment leading to a reduction in his sentence.

I. Background

On November 28, 2001, Mr. Cano-Silva and David Padilla were indicted

for conspiracy to distribute methamphetamine and cocaine. At his arraignment on

November 29, 2001, Mr. Cano-Silva’s trial date was set for January 28, 2002. A

debriefing held on December 13, 2001 convinced counsel for both parties that

continued plea negotiations would likely result in a change of plea, and counsel

decided that the January trial date should be stricken and the time excluded from

computation under the Speedy Trial Act.1

 The district court was notified of the

request for continuance by telephone and the trial date was stricken. Each party

believed the other was to make the motion to exclude time from computation

under the Speedy Trial Act, and as a result the motion was never made. Plea
3

negotiations were complicated by an issue involving a confidential informant, the

resolution of which was delayed by the limited availability of the case agent

during the Salt Lake City Winter Olympics. Disclosure regarding the informant

was ultimately made by pleading March 11, 2002. Despite counsels’ early

enthusiasm for plea negotiations, Mr. Cano-Silva ultimately rejected the

government’s plea offer. The relationship between Mr. Cano-Silva and his lawyer

deteriorated, and on April 8, 2002, defense counsel moved the district court to

permit his withdrawal, citing the breakdown of that perfect confidence that should

mark the attorney-client relationship. On April 23, 2002, the district court

granted the motion. The district court referred the case to a magistrate judge on

April 30, 2002, and the magistrate judge appointed new counsel to represent Mr.

Cano-Silva that same day. 

Inspired to new diligence, perhaps, by this sudden activity, on May 2, 2002,

the government filed a motion to exclude the time beginning December 13, 2001

until the new trial date from computation under the Speedy Trial Act. Mr. CanoSilva’s new counsel responded with a motion to dismiss with prejudice in light of

the Speedy Trial Act violation. The magistrate judge denied the government’s

motion to exclude time, and the district court convened a hearing on Mr. CanoSilva’s motion to dismiss the indictment. At the conclusion of the hearing, the

district court dismissed the indictment against Mr. Cano-Silva without prejudice. 
2

 Approximately eight pounds of methamphetamine and five pounds of

cocaine were found in the search of Mr. Cano-Silva’s car. The drugs from the

car, combined with the methamphetamine found in the storage shed rented to Mr.

Padilla and frequently visited by Mr. Cano-Silva, translates into 62,016 kilograms

of marijuana equivalent. Mr. Cano-Silva’s base offense level was determined

under U.S.S.G. § 2D1.1(c)(1), which provides for a base level of thirty-eight for

30,000 kilograms or more of marijuana equivalent. 

4

The day after the dismissal the government obtained a new indictment

against Mr. Cano-Silva for the same crimes charged in the initial indictment. A

superceding indictment charged Mr. Cano-Silva with one count of possessing 50

grams or more of methamphetamine with intent to distribute and one count of

possessing 500 grams or more of a mixture containing cocaine with an intent to

distribute. A jury convicted Mr. Cano-Silva on both counts. Mr. Cano-Silva’s

base offense level was 38 due to the substantial quantities of drugs found in his

car.2

 The seriousness of his offense combined with his criminal history category

of II exposed Mr. Cano-Silva to a sentencing range of 262 to 327 months. The

government moved for a two-level obstruction of justice enhancement based on

allegations that Mr. Cano-Silva perjured himself at trial. Mr. Cano-Silva moved

for a minor participant adjustment based on his allegedly limited role in Mr.

Padilla’s drug-distribution activities. The district court denied the government’s

motion for an obstruction of justice enhancement, granted Mr. Cano-Silva’s

request for a minor-participant adjustment, and sentenced Mr. Cano-Silva to the

minimum period of incarceration permitted under the applicable guideline range:
5

210 months. After briefing before this Court had been completed, the United

States Supreme Court decided Blakely v. Washington, 124 S. Ct. 2531 (2004). 

Mr. Cano-Silva argued in supplemental briefing that Blakely rendered the United

States Sentencing Guidelines unconstitutional in their entirety and requested

remand for discretionary sentencing within the statutory limits. 

II. Analysis

A. Speedy Trial Act Violation

Mr. Cano-Silva appeals the district court’s dismissal of the indictment

against him without prejudice, arguing that dismissal with prejudice was the

appropriate remedy for the Speedy Trial Action violation. The Speedy Trial Act

provides that an accused person’s trial must begin within seventy days of his

indictment or initial appearance, whichever is later. 18 U.S.C. § 3161(c)(1). 

Periods of time devoted to negotiating plea agreements are not explicitly excluded

from calculation, but such delays may be excluded if the district court determines

that “the ends of justice served by [granting a continuance and excluding the time

from calculation] outweigh the best interest of the public and the defendant in a

speedy trial.” 18 U.S.C. § 3161(h)(8)(A). 

When more than seventy non-excluded days have passed, the Act requires

dismissal of an affected indictment on motion by the defendant. 18 U.S.C. §

3162(a)(2). While dismissal of the indictment is mandatory, the district court
6

retains discretion to determine whether the indictment is dismissed with or

without prejudice. Id. In determining whether to dismiss with or without

prejudice, the court

shall consider, among others, each of the following factors: the

seriousness of the offense; the facts and circumstances of the case

which led to the dismissal; and the impact of a reprosecution on the

administration of this chapter and on the administration of justice.

Id. The Supreme Court has indicated that prejudice to the defendant occasioned

by the delay should also be considered in determining whether to dismiss an

indictment with or without prejudice. See United States v. Taylor, 487 U.S. 326,

333–34 (1988). 

We review for abuse of discretion a district court’s decision under the

Speedy Trial Act to dismiss an indictment without prejudice. United States v.

Jones, 213 F.3d 1253, 1256 (10th Cir. 2000). “[W]hen the statutory factors are

properly considered, and supporting factual findings are not clearly in error, the

district court’s judgment of how opposing considerations balance should not

lightly be disturbed.” Taylor, 487 U.S. at 337. 

The district court in Mr. Cano-Silva’s case considered each of the required

factors and held that dismissal without prejudice was the appropriate remedy for

the Speedy Trial Act violation. Mr. Cano-Silva does not strenuously dispute the

district court’s determination that three of the four factors support dismissal

without prejudice. Mr. Cano-Silva concedes, for instance, that the crime with
7

which he was charged is a serious one. He makes only a perfunctory objection to

the district court’s conclusion that the administration of justice is best served by a

dismissal without prejudice, suggesting that a dismissal with prejudice “would

send a strong message that . . . the government should be aware of the demands of

the Speedy Trial Act.” Aplt’s Br. 17. As we have had occasion to point out

before, the Speedy Trial Act provides for two varieties of penalties, both of which

give the government incentives to avoid violations. See Jones, 213 F.3d at 1257. 

While dismissal with prejudice is obviously the more severe sanction, a dismissal

without prejudice still requires re-indictment, may expose the government to

statute of limitations difficulties, and generally makes prosecution less likely. See

id. The fact that a violation has taken place is not alone sufficient for the

application of the more severe sanction of dismissal with prejudice, which should 

be reserved for more egregious violations. Dismissal with prejudice is a strong

message indeed, and one ill-suited to an isolated and inadvertent violation. 

Mr. Cano-Silva has also failed to demonstrate that he was so prejudiced by

the delay as to warrant the dismissal of his case with prejudice. Mr. Cano-Silvo

compares his situation to that of the defendant in United States v. Saltzman, 984

F.2d 1087 (10th Cir. 1993), observing that the delay in his case was longer and

that Mr. Saltzman’s trial was delayed by negotiations that culminated in a

favorable plea agreement, whereas he ultimately received a longer sentence than
8

the plea bargain he rejected. This comparison is unpersuasive. While the length

of the delay in Mr. Cano-Silva’s case is not insignificant, neither is it dispositive. 

See Jones, 213 F. 3d at 1258 (holding that a delay of 414 non-excludable days did

not require dismissal with prejudice). The chief appeal of plea agreements for

defendants is that a plea bargain presumably will result in a shorter sentence than

a sentence following a conviction; having fired one lawyer who negotiated a

favorable plea agreement and declined to follow the advice of another during

trial, Mr. Cano-Silva can hardly complain that his sentence was longer than that

offered in the plea agreement. The acceptance of responsibility, both inside and

outside the United States Sentencing Guidelines, will likely result in a shorter

sentence than will a dogged insistence that the government prove its case to a

jury. A finding that a delay produced a benefit for a defendant will certainly

diminish the likelihood that prejudice will be found, but we did not in Saltzman

articulate a rule that delays are prejudicial unless beneficial. 

Mr. Cano-Silva devotes the greater part of his discussion of the § 3162

factors to the facts and circumstances leading to the dismissal. In determining

whether the facts and circumstances warrant dismissal with prejudice we focus on

the culpability of the conduct that led to the delay. Saltzman, 984 F.2d at 1093. 

If the violation is the result of “intentional dilatory conduct, or a pattern of

neglect on the part of the Government, dismissal with prejudice is the appropriate
9

remedy.” Id. at 1093–94. The district court found that the Speedy Trial Act

violation was the result of the “inadvertence of both parties and not [of] any

deliberate attempt by the government to manipulate the proceedings or any pattern

of dilatory conduct or neglect by the government.” Order of Dismissal 4. 

Although conceding that the violation was not deliberate, Mr. Cano-Silva

maintains that it was nevertheless the product of culpable neglect by the

government, sufficient to warrant dismissal with prejudice. 

In support of this assertion, Mr. Cano-Silva offers the facts that, while the

violation was ongoing, the government filed a notice of its compliance with

discovery requirements, defense counsel observed in a motion to withdraw that a

trial date had not yet been set, and the court appointed new counsel. Mr. CanoSilva argues that the fact the government attended to some aspects of his

case—such as filing its notice of compliance with discovery

requirements—somehow makes more culpable the neglect of its Speedy Trial Act

obligations. But it is unclear why this should be the case. Indeed, the fact that

the government continued to make other required filings tends to support the

district court’s conclusion that the government believed that defense counsel had

attended to the motion to exclude time. Whenever a Speedy Trial Act violation

takes place, it is very likely that the government has made a mistake of some sort;

in order to secure a dismissal with prejudice a defendant must do more than point
10

to that mistake with rising indignation. 

Mr. Cano-Silva’s suggestion that the district court and the government

should have responded to the withdrawing defense counsel’s “reminder” that a

trial date had not yet been set is equally misplaced. Under local rules, the ease or

difficulty with which a lawyer may extricate himself from a case depends, in large

measure, upon whether a trial date has or has not been set. See DUCivR 83-

1.4(a)(3); DUCrimR 57-12. A reference to a trial date in a motion to withdraw is

likely to be intended and taken as an attempt to invoke the more relaxed rules that

apply before a trial date has been set, rather than a Cassandra-like prophecy of a

coming Speedy Trial Act violation. 

Mr. Cano-Silva also testified at his sentencing hearing, and maintains on

appeal, that he was unaware of his rights under the Act and did not knowingly

acquiesce in the delay. In opposition to Mr. Cano-Silva’s testimony, the

government produced a letter from Mr. Cano-Silva’s first attorney indicating that

he had informed Mr. Cano-Silva of his rights under the Speedy Trial Act and that

Mr. Cano-Silva agreed to waive those rights in order to pursue plea negotiations. 

The district court declined to resolve this question, observing at the hearing that

the dispute could be addressed more appropriately by means other than the

mechanism of the Speedy Trial Act. Mr. Cano-Silva insists that ignorance of his

rights, coupled with the failure of the government and the district court to hold a
11

hearing to ensure his waiver of his rights was intentional and intelligent, entitles

him to a dismissal with prejudice. 

There are two significant difficulties with Mr. Cano-Silva’s theory. First,

neither statute nor precedent requires us to consider whether Mr. Cano-Silva

knowingly waived his speedy trial rights. Such a requirement is not included in

the factors enumerated in the Act and it has not been added by the Supreme Court. 

Despite Mr. Cano-Silva’s suggestion to the contrary, this Court has not added the

requirement that a defendant’s acquiescence in a delay be acknowledged in open

court in order to be acceptable. In Saltzman we disagreed with the district court’s

finding that the defendant’s waiver of his right to a speedy indictment was

unknowing, citing as support for our conclusion the fact that the defendant

acknowledged his rights and waived them in a hearing. 984 F.2d at 1093. We did

not hold that a failure to hold a hearing in order to determine that a waiver was

knowing is a circumstance requiring, or even tending toward, dismissal with

prejudice. Indeed, Mr. Cano-Silva’s argument creates a difficulty to which we

alluded in Saltzman, that a defendant might wait passively for the Speedy Trial

Act time to run, or even actively contribute to the delay, and then demand a

dismissal with prejudice. See id. at 1094. If a defendant has merely to assert that

he did not know of his rights under the Act in order to secure a dismissal with

prejudice, criminal defendants would have every incentive to wait passively
12

whenever there is the prospect of a violation. The creation of such an incentive

would in no way promote the Act’s twin goals of protecting the rights of the

public and criminal defendants to the prompt resolution of criminal proceedings. 

The second problem with Mr. Cano-Silva’s argument is that his

solution—requiring district courts to hold hearings to ensure intentional and

intelligent waiver—is both administratively unworkable and largely ineffectual. 

As the district court observed, the government’s “contact with defendant was

limited properly to negotiations with defense counsel.” Order of Dismissal 4. 

Neither prosecutors nor trial courts can be expected to call for a hearing to ensure

that every tactical decision communicated by defense counsel has been approved

by the defendant. To attach such a requirement to every request for a

continuance and exclusion of time would add significantly to district courts’

burdens, exacerbating delays rather than reducing them. Nor would such a

procedure have been of any assistance in avoiding the violation of which Mr.

Cano-Silva complains. Counsel for both parties and the court were unaware that

a violation was in the making; a procedure requiring a hearing with each motion

is of no use in a situation in which everyone involved assumes someone else has

taken responsibility for the motion and then forgets about it.

The district court properly considered the factors required by precedent and

statute and appropriately dismissed the indictment without prejudice. 
3

 The indictment against Mr. Cano-Silva charged him with possession with

intent to distribute 50 grams or more of actual methamphetamine and 500 grams

or more of a mixture containing detectable amounts of cocaine. The government

concedes that Mr. Cano-Silva’s sentence was “enhanced based on the fact that he

possessed more than 1.5 kilograms of actual methamphetamine.” Supp. Br. at 4. 

Mr. Cano-Silva, however, appears to believe that his case presents no obvious

Booker issues: “Mr. Cano-Silva’s case does not involve a Sixth Amendment

violation.” Aplt. 28(j) Letter, Feb. 8, 2005. We need not reach the Booker issue

attendant upon the difference between facts found by the jury and the judge, as

we have determined that the case requires a remand for re-sentencing in any

event.

13

B. Minor-Participant Adjustment

After the dismissal of the indictment against Mr. Cano-Silva without

prejudice, the government promptly re-indicted him, and he was convicted with

almost equal promptness at the conclusion of a jury trial. The presentence report

(PSR) recommended a two-point enhancement for obstruction of justice based on

Mr. Cano-Silva’s apparent perjury at trial. The PSR further concluded that Mr.

Cano-Silva had, upon Mr. Padilla’s transfer to California, taken over Mr.

Padilla’s drug distribution activities in Utah. Mr. Cano-Silva nevertheless moved

for a two-point minor-participant adjustment. The government moved for the

two-point obstruction enhancement and opposed the minor-participant adjustment. 

In light of the roughly thirteen pounds of cocaine and methamphetamine found in

his car, Mr. Cano-Silva’s base offense level was determined to be thirty-eight.3

The trial court denied the government’s motion for an enhancement and found Mr.

Cano-Silva to have been a minor participant, reducing his offense level to thirty-
14

six. A base offense level of thirty-six, combined with Mr. Cano-Silva’s criminal

history category of two, produces a sentencing range of 210 to 262 months. Mr.

Cano-Silva was sentenced to 210 months’ imprisonment, the shortest sentence

permissible under the then-mandatory Guidelines. 

On appeal, the government renews its contention that there was inadequate

evidence to support the district court’s finding that Mr. Cano-Silva was a minor

participant for the purposes of a two-level reduction under the Guidelines. See

U.S.S.G. § 3B1.2. Mr. Cano-Silva had the burden of demonstrating his

entitlement to a minor-participant reduction by a preponderance of the evidence. 

United States v. Chavez, 229 F.3d 946, 956 (10th Cir. 2000). The government

argues, with some justification, that Mr. Cano-Silva failed to meet this burden and

that the evidence pointed to a more significant role. In addition, the government

points to indications in the sentencing transcript that the district judge made the

minor-participant adjustment because of a desire to shorten what he regarded as

an excessive sentence. For example, when the government pressed the point that

the evidence did not support the adjustment, the district judge expressed

reservations about the fit between the sentence the Guidelines required and Mr.

Cano-Silva’s deserts:

This is a difference between 210 and 262 months on the low

end of the range [for a base offense level of 36 and 38,

respectively]. Does the government really think that Mr.

Cano-Silva deserves 262 months? I think that is something
15

like . . . 23 years or something like that, an extra four years

that we’re talking about here is going to cost the government

in excess of $100,000. Is that the best use of the government’s

resources[?]

Rec. Vol. VII at 14. 

But we need not resolve the merits of the minor-participant adjustment. In

their briefs, both parties agree that the district court committed a different

sentencing error, which went unnoticed at the time of sentencing. Several months

before Mr. Cano-Silva’s sentencing, a change in the Guidelines provided that the

base offense level for a defendant granted a minor-participant adjustment on drug

charges can be no higher than thirty. U.S.S.G. § 2D1.1(a)(3) (Effective Nov. 1,

2002) U.S.S.G. App. C, Amend. 640. Mr. Cano-Silva was given a minorparticipant adjustment but sentenced at a base offense level of 36. That violated

the revised Guideline. 

Mr. Cano-Silva did not challenge the district court’s determination of the

base offense level at sentencing; however, the government concedes that the error

was plain. “Therefore, even though Cano-Silva did not raise this issue below, he

will need to be resentenced on remand . . . if this Court affirms the district court’s

minor-participant finding.” U.S. Br. at 14. It is therefore unnecessary for us to

engage in the usual four-part plain error analysis. See United States v. Hurlich,

348 F.3d 1219, 1220 (10th Cir. 2003). 

Accordingly, whether or not the district court erred in granting the minor-
16

participant adjustment, the sentence itself was erroneous. Either the court erred

in granting the minor participant adjustment or, if not, it erred in failing to cap the

base offense level at thirty. Either way, the sentence must be vacated and the

case remanded for resentencing. 

The resentencing proceeding, of course, must be conducted in light of the

Supreme Court’s recent decision in United States v. Booker, 125 S. Ct. 738

(2005). Under Booker, the Sentencing Guidelines are no longer mandatory, and

the district judge will be free to determine whether the defendant is eligible for a

minor-participant adjustment without any concern that the result would compel

what the judge considers an unwarranted sentence. On remand, the district judge

shall determine anew whether or not Mr. Cano-Silva was a minor participant

under the Guidelines, and then “take account of the Guidelines together with

other sentencing goals” in imposing his sentence. Booker, 125 S. Ct. at 764.

Mr. Cano-Silva filed supplemental briefing arguing that the decision of the

United States Supreme Court in Blakely v. Washington, 124 S. Ct. 2531 (2004),

rendered the Guidelines unconstitutional in their entirety. Mr. Cano-Silva

accordingly requested remand for discretionary sentencing within the statutory

range. We need not reach any issues connected to Blakely or Booker, since we

have already determined that the case must be remanded for re-sentencing. We

therefore deny the motion to file supplemental briefs.
17

III. Conclusion

The district court properly considered the factors required by statute and

Supreme Court precedent in dismissing the first indictment against Mr. CanoSilva without prejudice. The dismissal without prejudice is therefore

AFFIRMED. The district court’s determination of Mr. Cano-Silva’s base offense

level under the United States Sentencing Guidelines, however, was erroneous and

requires remand for re-sentencing. Mr. Cano-Silva’s sentence is accordingly

VACATED and his case is REMANDED for proceedings consistent with this

opinion.