## 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 (Mich ael G. Katz, former Federal Public Defender, and Raymond P. Moore, Federal Publ ic Defender, with her on the briefs), Denver, Colorado, for Appellant/Cross- Appellee. Michael S. Lee, Assistant United States Attorney (P aul 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 agr eed to the continuance

and exclusion of time from computation under the Ac t, Defendant disputes whether he approved, or was even aware of, his lawy er’s acquiescence in the continuation of the trial. 2 Defendant Hector Cano-Silva appeals the district co urt’s decision to dismiss the indictment against him without prejudic e after finding a violation of the Speedy Trial Act. The government cross-appeals the district court’s determination that Mr. Cano-Silva’s activities warr anted a minor-participant adjustment leading to a reduction in his sentence. I. Background On November 28, 2001, Mr. Cano-Silva and David Padi lla were indicted for conspiracy to distribute methamphetamine and co caine. 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 coun sel 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 stric ken 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 exclud e time from computation under the Speedy Trial Act, and as a result the mot ion was never made. Plea3

negotiations were complicated by an issue involving a confidential informant, the resolution of which was delayed by the limited avai lability of the case agent during the Salt Lake City Winter Olympics. Disclos ure regarding the informant was ultimately made by pleading March 11, 2002. De spite counsels’ early enthusiasm for plea negotiations, Mr. Cano-Silva ul timately 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 thatperfect confidence that should mark the attorney-client relationship. On April 23 , 2002, the district court granted the motion. The district court referred th e 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 b eginning 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 dism iss with prejudice in light of the Speedy Trial Act violation. The magistrate jud ge denied the government’s motion to exclude time, and the district court conv ened a hearing on Mr. CanoSilva’s motion to dismiss the indictment. At the c onclusion 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, t ranslates into 62,016 kilograms of marijuana equivalent. Mr. Cano-Silva’s base off ense 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 dis tribute and one count of possessing 500 grams or more of a mixture containin g 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 qu antities 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 jus tice enhancement based on allegations that Mr. Cano-Silva perjured himself attrial. Mr. Cano-Silva moved for a minor participant adjustment based on his all egedly limited role in Mr. Padilla’s drug-distribution activities. The distri ct court denied the government’s motion for an obstruction of justice enhancement, g ranted Mr. Cano-Silva’s request for a minor-participant adjustment, and sen tenced Mr. Cano-Silva to the minimum period of incarceration permitted under the applicable guideline range:5

210 months. After briefing before this Court had b een 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 th eir 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 dismiss al of the indictment against him without prejudice, arguing that dismiss al with prejudice was the appropriate remedy for the Speedy Trial Action viol ation. The Speedy Trial Act provides that an accused person’s trial must begin within seventy days of his indictment or initial appearance, whichever is late r. 18 U.S.C. § 3161(c)(1). Periods of time devoted to negotiating plea agreeme nts are not explicitly excluded from calculation, but such delays may be excluded i f the district court determines that “the ends of justice served by [granting a con tinuance 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 passe d, the Act requires dismissal of an affected indictment on motion by th e defendant. 18 U.S.C. § 3162(a)(2). While dismissal of the indictment is m andatory, the district court6

retains discretion to determine whether the indictm ent 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 rep rosecution on the administration of this chapter and on the administr ation of justice. Id . The Supreme Court has indicated that prejudice t o the defendant occasioned by the delay should also be considered in determini ng 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 p rejudice. United States v.
Jones , 213 F.3d 1253, 1256 (10th Cir. 2000). “[W]hen t he statutory factors are properly considered, and supporting factual finding s 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 conside red each of the required factors and held that dismissal without prejudice w as the appropriate remedy for the Speedy Trial Act violation. Mr. Cano-Silva doe s not strenuously dispute the district court’s determination that three of the fo ur factors support dismissal without prejudice. Mr. Cano-Silva concedes, for in stance, that the crime with7

which he was charged is a serious one. He makes on ly 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 dism issal with prejudice “would send a strong message that . . . the government sho uld 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 varie ties 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 mor e severe sanction, a dismissal without prejudice still requires re-indictment, mayexpose 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 dismissa l with prejudice, which should be reserved for more egregious violations. Dismiss al with prejudice is a strong message indeed, and one ill-suited to an isolated a nd 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 w ith 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 negotiatio ns that culminated in a favorable plea agreement, whereas he ultimately rec eived a longer sentence than8

the plea bargain he rejected. This comparison is u npersuasive. While the length of the delay in Mr. Cano-Silva’s case is not insign ificant, 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 r esult 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 r esponsibility, both inside and outside the United States Sentencing Guidelines, wi ll likely result in a shorter sentence than will a dogged insistence that the gov ernment prove its case to a jury. A finding that a delay produced a benefit fo r a defendant will certainly diminish the likelihood that prejudice will be foun d, but we did not in Saltzman articulate a rule that delays are prejudicial unles s beneficial. Mr. Cano-Silva devotes the greater part of his disc ussion of the § 3162 factors to the facts and circumstances leading to t he dismissal. In determining whether the facts and circumstances warrant dismiss al 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 wi th prejudice is the appropriate9

remedy.” Id . at 1093–94. The district court found that the Sp eedy Trial Act violation was the result of the “inadvertence of bo th 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 delib erate, Mr. Cano-Silva maintains that it was nevertheless the product of c ulpable neglect by the government, sufficient to warrant dismissal with pr ejudice. In support of this assertion, Mr. Cano-Silva offers the facts that, while the violation was ongoing, the government filed a notic e of its compliance with discovery requirements, defense counsel observed ina motion to withdraw that a trial date had not yet been set, and the court appo inted 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 d iscovery requirements—somehow makes more culpable the neglec t 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 fil ings tends to support the district court’s conclusion that the government bel ieved that defense counsel had attended to the motion to exclude time. Whenever aSpeedy 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 def endant must do more than point10

to that mistake with rising indignation. Mr. Cano-Silva’s suggestion that the district courtand the government should have responded to the withdrawing defense co unsel’s “reminder” that a trial date had not yet been set is equally misplace d. Under local rules, the ease or difficulty with which a lawyer may extricate himsel f from a case depends, in large measure, upon whether a trial date has or has not b een set. See DUCivR 83- 1.4(a)(3); DUCrimR 57-12. A reference to a trial d ate in a motion to withdraw is likely to be intended and taken as an attempt to in voke 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 hea ring, 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 orde r to pursue plea negotiations. The district court declined to resolve this questio n, observing at the hearing that the dispute could be addressed more appropriately b y means other than the mechanism of the Speedy Trial Act. Mr. Cano-Silvainsists that ignorance of his rights, coupled with the failure of the government and the district court to hold a11

hearing to ensure his waiver of his rights was inte ntional and intelligent, entitles him to a dismissal with prejudice. There are two significant difficulties with Mr. Can o-Silva’s theory. First, neither statute nor precedent requires us to consid er whether Mr. Cano-Silva knowingly waived his speedy trial rights. Such a r equirement is not included in the factors enumerated in the Act and it has not be en 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 de lay 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 hearin g. 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 tendin g toward, dismissal with prejudice. Indeed, Mr. Cano-Silva’s argument creat es a difficulty to which we alluded in Saltzman , that a defendant might wait passively for the Spe edy 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 orde r to secure a dismissal with prejudice, criminal defendants would have every inc entive to wait passively12

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 pro tecting the rights of the public and criminal defendants to the prompt resolu tion of criminal proceedings. The second problem with Mr. Cano-Silva’s argument i s 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 “c ontact with defendant was limited properly to negotiations with defense couns el.” Order of Dismissal 4. Neither prosecutors nor trial courts can be expecte d to call for a hearing to ensure that every tactical decision communicated by defens e counsel has been approved by the defendant. To attach such a requirement to every request for a continuance and exclusion of time would add signifi cantly to district courts’ burdens, exacerbating delays rather than reducing t hem. Nor would such a procedure have been of any assistance in avoiding t he violation of which Mr. Cano-Silva complains. Counsel for both parties andthe court were unaware that a violation was in the making; a procedure requirin g a hearing with each motion is of no use in a situation in which everyone invol ved assumes someone else has taken responsibility for the motion and then forget s 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 met hamphetamine and 500 grams or more of a mixture containing detectable amounts of cocaine. The government concedes that Mr. Cano-Silva’s sentence was “enhanc ed based on the fact that he possessed more than 1.5 kilograms of actual methamp hetamine.” Supp. Br. at 4. Mr. Cano-Silva, however, appears to believe that hi s case presents no obvious Booker issues: “Mr. Cano-Silva’s case does not involve a S ixth Amendment violation.” Aplt. 28(j) Letter, Feb. 8, 2005. We need not reach the Bookerissue attendant upon the difference between facts found b y 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. C ano-Silva without prejudice, the government promptly re-indicted him, and he was convicted with almost equal promptness at the conclusion of a jurytrial. The presentence report (PSR) recommended a two-point enhancement for obstruction of justice based on Mr. Cano-Silva’s apparent perjury at trial. The PS R further concluded that Mr. Cano-Silva had, upon Mr. Padilla’s transfer to Cali fornia, taken over Mr. Padilla’s drug distribution activities in Utah. M r. Cano-Silva nevertheless moved for a two-point minor-participant adjustment. The government moved for the two-point obstruction enhancement and opposed the m inor-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 de termined 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, reduci ng 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 rang e 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 th at Mr. Cano-Silva was a minor participant for the purposes of a two-level reducti on 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 p reponderance of the evidence. United States v. Chavez , 229 F.3d 946, 956 (10th Cir. 2000). The governme nt argues, with some justification, that Mr. Cano-Silv a failed to meet this burden and that the evidence pointed to a more significant rol e. 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 gover nment pressed the point that the evidence did not support the adjustment, the di strict 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 an d 38, respectively]. Does the government really think th at Mr. Cano-Silva deserves 262 months? I think that is so mething15 like . . . 23 years or something like that, an extr a 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. § 2 D1.1(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 offe nse 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 gove rnment 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 erre d in granting the minor-16

participant adjustment, the sentence itself was err oneous. 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 sent ence must be vacated and the case remanded for resentencing. The resentencing proceeding, of course, must be con ducted in light of the Supreme Court’s recent decision inUnited 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 whethe r the defendant is eligible for a minor-participant adjustment without any concern th at 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 e ntirety. Mr. Cano-Silva accordingly requested remand for discretionary sent encing within the statutory range. We need not reach any issues connected to Blakelyor Booker , since we have already determined that the case must be reman ded for re-sentencing. We therefore deny the motion to file supplemental brie fs.17 III. Conclusion The district court properly considered the factors required by statute and Supreme Court precedent in dismissing the first ind ictment against Mr. CanoSilva without prejudice. The dismissal without pre judice 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 co nsistent with this opinion.