F I L E D

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

United States Court of Appeals

Tenth Circuit

DEC 18 1998

PATRICK FISHER
Clerk

UNITED STATES OF AMERICA,

Plaintiff-Appellee,
v.

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

JOAN MARIE YOUNG,

Defendant-Appellant.

ORDER AND JUDGMENT

Before TACHA , HENRY , and MURPHY , Circuit Judges.

Mrs. Young appeals her sentence after pleading guilty to one count of
possession of methamphetamine with intent to distribute. She contends that the
district court (1) violated her Sixth Amendment right to a speedy trial; (2) erred
by proceeding immediately to sentencing without requiring a revised presentence
report (PSR) or providing her with sufficient notice; and erred under the

This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
*

Sentencing Guidelines by (3) granting an upward adjustment for possession of

firearms and (4) refusing to grant a downward adjustment for acceptance of
responsibility. We affirm.
A. BACKGROUND
On August 5, 1994, Mrs. Young pleaded guilty with her husband to one
charge of possession with intent to distribute methamphetamine, in violation of 21
U.S.C. 841(a)(1) and (b)(1)(B), and one charge of using 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 in June, 1995. In July, both
Youngs moved to withdraw their guilty pleas on both charges, and Mr. Young
also moved for dismissal on double jeopardy grounds because his property
involved in the alleged crime had been previously forfeited. On September 22,
1995, the district court denied both motions to withdraw the guilty pleas but
reserved ruling on Mr. Youngs double jeopardy motion, 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 during a drug trafficking offense
under 18 U.S.C. 924(c) requires the firearm's active-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 filed a response on January 26,

1996, agreeing that it would be fair to allow her to 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 were 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 double jeopardy grounds but,

nevertheless, in July, Mrs. Young petitioned to join her husbands motion. Still,
the district court did not rule on any of the Youngs 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 moved to dismiss on the grounds
that her Sixth Amendment speedy trial rights had been violated. In July, 1997,
she finally petitioned this court for a writ of mandamus. We granted the writ on
August 19, 1997, ordering the district court to rule on pending motions within
thirty days and to sentence defendants, if then appropriate.
In response, on September 4, 1997, the district court granted Mrs. Youngs
post- Bailey motion to withdraw her plea as to the firearms charge, 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 during the search of the Youngs
home to Mr. Young. At the September 11 hearing, the district court denied Mrs.

Youngs motion to dismiss, then proceeded immediately to sentencing. The court

sentenced Mrs. Young to 137 months of confinement, plus five years of
supervised release. We now turn to Mrs. Youngs four alleged errors.

B. DISCUSSION
1. Sixth Amendment Right To A Speedy Trial
Mrs. Young first argues that the 24 month delay between the trial courts
determination of her initial motion to withdraw her plea on September 22, 1995,
and her final sentencing on September 11, 1997, violated her Sixth Amendment
right to a speedy trial. We review de novo the district courts legal conclusions as
to whether Mrs. Young established a violation of her 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 vague 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 reason for the delay, [c] the
defendant's assertion of her right, and [d] prejudice to the defendant.
Sullivan , 793 F.2d 249, 253 (10th Cir. 1986) (quoting

Perez v.

Barker , 407 U.S. at 530).

These factors are non-rigid guidelines, and [n]o single factor is either a
necessary or sufficient condition to the finding of a deprivation of the right of a

speedy trial. Barker , 407 U.S. at 533.

Here, in the post-conviction context, we

consider the same factors but have previously noted that in such cases, the
necessity of showing substantial prejudice would dominate the four-part
balancing test.

Perez , 793 F.2d at 256.

a. Length of Delay
If the length of the delay is presumptively prejudicial, 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 of 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 issue here resulted from the
unexplained error of the district court, not a deliberate government attempt to
delay the case. A neutral reason, such as negligence or overcrowded courts,
should be given less weight than a deliberate government interference but
nevertheless should still be weighed against the government 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 administrative failure to schedule
hearing on motions for which administrator had no explanation weighed against
government).

c. Defendant's Assertion of Her Right

Mrs. Young filed several motions requesting court action, and this court
ultimately granted her a writ of mandamus. Mrs. Young 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 situation, the import of
showing prejudice dominate[s] the

Barker test because the traditional interests

protected by the speedy trial guarantee are diminished once there has been a
conviction. Id. ([I]t might be said that once a defendant has been convicted it
would be the rarest of circumstances in which the right to a speedy trial could be
infringed without a showing of prejudice.). The prejudice 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 the delay certainly could have
contributed to anxiety, the district court had already 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 incarceration, she had the

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 equivalent 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 diminished
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 amenities 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 not 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. Youngs

favor, because she has not made a sufficient showing 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 erred by proceeding
immediately to sentencing. After we granted Mrs. Youngs writ of mandamus,
the district court set a hearing date, and issued an order stating, [t]he hearing

will continue from day to day until the pending motions are heard and determined
and, if applicable, the defendants are sentenced. Minute Order, No. 94-CR 169N. (Sept. 4, 1997). At the hearing, the district judge first denied Mrs. Youngs
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 sufficient notice to her under
Fed. R. Crim. Pro. 32.

a. Revised PSR
First, Mrs. Young argues that the district court should have required a
revised PSR before proceeding to sentencing because of an earlier district court
order that returned seized firearms to Mr. Young under Rule 41(e). Rule 41(e)
provides for the return of seized property if the claimant 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, 1997).

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.
United States v. Cureton , 89 F.3d 469, 472 (7th Cir. 1996)
of procedural rules in effect at time of sentencing governed)

See

(holding that version

. Under this version,

the court may, at the hearing, accept the PSR as its 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 contained in or omitted from the
[PSR]. Id. at (b)(6)(B).
Mrs. Young's objection regarding ownership of the weapons does not,
however, address any material information or sentencing 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. Accordingly, 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 sufficient notice prior to her
sentencing to comply with Rule 32. We review de novo 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. Young cites to the 1994 version of
Rule 32, in effect at the date on which her sentencing hearing was originally
scheduled. She argues that under this notice requirement, the district court should
have allowed her additional time between its ruling on her motions and

sentencing.
Again, however, we must apply the version of Rule 32 in effect when Mrs.
Youngs sentencing hearing actually occurred in 1997.

See Cureton , 89 F.3d at

472. The 1997 version states that, [n]ot less than 35 days before the sentencing
hearing, the probation officer must furnish the presentence report to the
defendant [and] the defendants counsel. . . . Fed. R. Crim. Proc. 32(b)(6)(A).
These requirements are met here because on September 14, 1994, Mrs. Young was
sent a PSR listing the potential areas to be considered for upward departure and,
on January 29, 1996, she was notified of the governments intention to seek an
upward adjustment for firearms possession if she was allowed to withdraw her
plea as to the firearms charge. These recommendations 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 suggested any change in the
government's position. Further, she does not present a credible argument that she
was prejudiced by this sentencing. Thus, Mrs. Young's notice argument fails.
3. Upward Adjustment for Possession of Firearms
Mrs. Young next argues that the district court erred in giving her an upward
adjustment for possession of firearms under 2D1.1(b)(1) of the Sentencing
Guidelines. We review the district courts factual determinations at sentencing

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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 defendant can

rebut by presenting evidence showing that it is clearly 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 were 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 closet. 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 courts 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 in 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. First, she argues that

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the court's return of the guns to Mr. Young established that he owned the
weapons, but, as the sentencing enhancement turns on possession, not ownership,
her argument is inapposite.
Second, the court's decision that Mr. Young was entitled to lawful
possession under 41(e) establishes at most that the guns were not used in
furtherance of a crime. As the sentencing enhancement 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 of a weapon is much higher
than that necessary for enhancement under the Guidelines.).
Finally, in evaluating whether Mrs. Young has shown the connection
between the guns and the offense to be highly improbable, we consider the
temporal and spatial relation [that exists] between 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 the same room where the drug
transaction took place. Thus, the district court did not clearly err in refusing to
find the connection between the guns and the offense clearly improbable, nor in
granting the upward adjustment under 2D1.1.
4. Downward Adjustment for Acceptance of Responsibility
Finally, Mrs. Young argues that the district court erred in refusing to grant

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her a downward adjustment for acceptance of responsibility 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 review because of his unique
position to evaluate a defendants acceptance of responsibility.

Id. at 689

(quoting U.S.S.G. 3E1.1, cmt. n. 5).

A defendants offense level may be reduced by two levels if she clearly
demonstrates acceptance of responsibility. U.S.S.G. 3E1.1. But, [c]onduct
resulting in an enhancement under 3C1.1 (Obstructing 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 where she had been placed
pending sentencing.
Further, while entry of a plea of guilty prior to commencement of trial can
evidence acceptance of responsibility, it may be outweighed 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). Here, the district court found
that Mrs. Youngs attempt to withdraw her guilty plea also demonstrated her lack

13

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 inconsistent 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 both 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. Regardless of her subjective
intentions, her actions did not clearly demonstrate that she had accepted
responsibility on either charge, much less that hers 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 responsibility, and this fact alone provides
adequate foundation for the district courts decision).

Accordingly, we AFFIRM the judgment of the district court.

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The mandate shall issue forthwith.

ENTERED FOR THE COURT,

Robert H. Henry
Circuit Judge

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