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United States v. Vickers

*fn* submitted: December 6, 1993.

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
HUGH MACK VICKERS, DEFENDANT-APPELLANT.



Appeal from the United States District Court for the District of Oregon. D.C. No. CR-90-60077-MRH. Michael R. Hogan, District Judge, Presiding

Before: Sneed, Noonan and Trott, Circuit Judges.

MEMORANDUM

Hugh Mack Vickers appeals his conviction following a guilty plea to conspiracy to possess methamphetamine with intent to distribute in violation of 21 U.S.C. §§ 841(a)(1), 846.

Counsel for Vickers filed a brief pursuant to Anders v. California, 386 U.S. 738, 18 L. Ed. 2d 493, 87 S. Ct. 1396 (1967), which identifies three issues for review: (1) whether the district court erred by denying Vickers' motion to dismiss for violation of the Speedy Trial Act, 18 U.S.C. § 3161 et seq. (STA); (2) whether the district court erred by denying his motion to withdraw his guilty plea; and (3) whether Vickers received ineffective assistance of counsel because trial counsel failed timely to assert Vickers' speedy trial claims. Vickers filed a pro se brief on appeal supplementing the speedy trial and ineffective assistance of counsel claims asserted in the Anders brief. We have jurisdiction under 28 U.S.C. § 1291, and we grant counsel's request to withdraw and affirm the conviction.

I

Speedy Trial

Vickers contends the district court erred by denying his motion to dismiss for failure to bring him to trial within the 70-day period specified in the STA. See 18 U.S.C. § 3161(c)(1). This argument is without merit.

The district court's factual findings concerning the STA are reviewed for clear error, and questions concerning application of the law are reviewed de novo. United States v. Nash, 946 F.2d 679, 680 (9th Cir. 1991). We review de novo a district court's interpretation of the STA. United States v. Sears, Roebuck, & Co., 877 F.2d 734, 737 (9th Cir. 1989).

A guilty plea waives the right to assert a violation of the STA because it is a non-jurisdictional claim. United States v. Bohn, 956 F.2d 208, 209 (9th Cir. 1992).

Here, Vickers pleaded guilty on June 14, 1991. Vickers filed his motion to dismiss for violation of the STA on November 13, 1991. The record reveals Vickers first mentioned the speedy trial claim on September 9, 1991, almost three months after he had pleaded guilty and waived any violations of the STA. See Bohn, 956 F.2d at 209.

Vickers argues he did not waive his right to assert his speedy trial rights because he entered a conditional plea of guilty pursuant to Fed. R. Crim. P. 11(a)(2) reserving the right to appeal a violation of the STA.

Rule 11 permits a defendant to plead guilty while reserving the right to appeal a specific pretrial motion. Fed. R. Crim. P. 11(a)(2). We strictly construe Rule 11(a)(2), which requires that conditional pleas be in writing and be approved by both the government and the district court. United States v. Cortez, 973 F.2d 764, 766 (9th Cir. 1992).

Here, Vickers' guilty plea neither reserved in writing the right to appeal a speedy trial violation nor did the government or the district court approve such a plea. The plea petition specifically stated Vickers understood he had the right to a speedy trial and that he waived it by pleading guilty. Not only did the district court scrupulously adhere to the requirements of Fed. R. Crim. P. 11, but the record also discloses Vickers failed to raise any speedy trial concerns until well after he pleaded guilty. Thus, we reject Vickers' claim he entered a conditional guilty plea which reserved the right to appeal a speedy trial violation. See id.*fn1

Because Vickers waived his right to assert a violation of the STA when he pleaded guilty on June 14, 1991, we hold the trial court did not err when it denied Vickers' motion to dismiss for ...


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