United States v. Levon , 127 F. App'x 865 ( 2005 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 05a0288n.06
Filed: April 18, 2005
No. 03-2473
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
ON APPEAL FROM THE UNITED
v. STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF MICHIGAN
TODD LEVON,
Defendant-Appellant.
_______________________________/
BEFORE: DAUGHTREY and CLAY, Circuit Judges; GRAHAM, District Judge.*
CLAY, Circuit Judge. Defendant Todd Levon appeals his conviction for conspiracy to
manufacture marijuana in violation of 21 U.S.C. § 846 and for being a felon in possession of a
firearm in violation of 18 U.S.C. § 922(g), alleging that he was not brought to trial within the time
allotted under the Speedy Trial Act (“STA”), 18 U.S.C. § 3161(c). Levon also appeals the 120
month sentence imposed by the district court. For the reasons that follow, we AFFIRM Levon’s
conviction under § 846, REVERSE his conviction under § 922(g), and AFFIRM his 120 month
sentence.
I. BACKGROUND
A. Procedural History
*
The Honorable James L. Graham, United States District Judge for the Southern District of
Ohio, sitting by designation.
No. 03-2473
Defendant Todd Levon, his brother Bruce Levon, and Mark Isaacs were indicted by a grand
jury on August 21, 2001 on multiple counts of conspiracy to manufacture marijuana in violation of
21 U.S.C. §§ 841 and 846. Bruce was additionally charged with being a felon in possession of a
firearm in violation of 18 U.S.C. § 922(g).1 All three co-defendants appeared before the district
court on August 31, 2001. At that time, Bruce entered a plea of not guilty, however Levon and
Isaacs did not enter pleas as they had not yet obtained counsel. Levon informed the court that he
intended to secure the representation of attorney Robert Slemaka, who had already entered an
appearance on Bruce’s behalf. The court advised Levon that a potential conflict of interest could
result from this arrangement, and continued Levon’s arraignment for September 4, 2001. Attorney
Slemaka did, in fact, represent Levon at his arraignment, at which time Levon pleaded not guilty.
The court appointed counsel for Isaacs, who also pleaded not guilty on September 4, 2001.
On September 14, 2001, the district court issued an order scheduling a hearing concerning
attorney Slemaka’s joint representation of Levon and Bruce for September 17, 2001. No such
hearing was held, however, as attorney Susanna Kostovski entered an appearance on Bruce’s behalf
on September 17, prior to the time scheduled for the hearing. On October 3, 2001, the district court
held a status conference concerning all three co-defendants. On November 15, 2001, Isaacs filed
a motion to suppress evidence, and on November 28, 2001, Bruce filed an additional motion to
suppress and to join Isaacs’ motion.
On May 22, 2002, the government filed a superseding indictment against all three co-
defendants. The new indictment added a charge of felon in possession of a firearm under § 922(g)
1
Throughout the opinion, we refer to Defendant as “Levon” and his brother as “Bruce.”
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against Levon. Bruce and Isaacs pleaded guilty to the charges in the superceding indictment on June
11, 2002, and the district court took their plea agreements under advisement. Attorney Slemaka
withdrew as Levon’s counsel on June 26, 2002, and on July 1, 2002, the district court appointed a
federal defender to represent him.
On September 11, 2002, the government filed a motion requesting the district court to
determine any excludable delay under the STA. Levon then moved to dismiss the case against him
on September 23, 2002, arguing that more than seventy non-excludable days had passed from the
time of his arraignment, in violation of the STA. The district court issued an opinion and order on
October 30, 2002, concluding that the STA had not been violated because “at most” 69 days had
elapsed. United States v. Levon, No. 01-80308, 2002 WL 31548623 at *5 (E.D. Mich. Oct. 30,
2002). Levon’s jury trial finally commenced on January 7, 2003. The jury convicted him of
conspiracy to manufacture 1,000 plants or more of marijuana, and of being a felon in possession of
a firearm. After determining that the marijuana offense carried a ten-year mandatory minimum
sentence, the district court sentenced Levon to 120 months imprisonment on each count, to run
concurrently. Defendant timely appealed to this Court.
B. Substantive Facts
1. Marijuana Cultivation
From the early 1990s until approximately 2001, Levon and his brother Bruce grew marijuana
out of various houses in the city of Detroit. Levon and Bruce each owned the houses individually
and ran separate growing operations, but they would apparently assist each other from time to time
by sharing growing equipment and “clones,” or small cuttings from marijuana plants that can be
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No. 03-2473
used to start a new crop, and by staggering their crops. A number of witnesses testified at Levon’s
trial that they worked for both brothers, doing jobs ranging from maintenance of houses to
harvesting and trimming marijuana crops. These witnesses also testified that in return for their
services, they were paid in cash and marijuana. Three individuals, Janet Shereda, Carl Snyder and
co-defendant Isaacs, testified that at one time, each had lived in a house owned by Levon, and that
during their residency they assisted in growing marijuana. A former drug customer and part-time
dealer, Robert Persinger, testified that in addition to buying drugs from Levon, he saw extensive
evidence of marijuana cultivation around Levon, including unharvested crops, garbage bags full of
marijuana, and hydroponic growing equipment.
Persinger became a Drug Enforcement Agency (“DEA”) informant in late 1999. Through
information supplied by Persinger, in early 2000, the DEA began surveilling a house located at
12070 Longview Street in Detroit. The DEA executed a federal search warrant at the house on
February 2, 2000. The search uncovered a marijuana growing operation in the basement, and
Snyder, who had been living at the house, was arrested. However, neither Levon nor his brother was
arrested following the raid on 12070 Longview.
On April 10, 2001, DEA agents raided a house owned by Bruce located at 3911 Nevada
Street in Detroit. Again, the agents discovered a marijuana growing operation, and arrested the
house’s occupant, co-defendant Isaacs. In May 2001, DEA agents executed a search warrant at
Bruce’s home in Harrison Township, Michigan, uncovering drug paraphernalia, papers relating to
marijuana cultivation techniques, and guns. Following the raids on 3911 Nevada and Bruce’s home,
Levon, Bruce, and Isaacs were indicted.
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No. 03-2473
2. Firearms
One of the guns seized from Bruce’s home was a Remington 12 gauge shotgun. At trial, the
government introduced documentary evidence demonstrating that Levon purchased the gun in
January 1994, and the parties stipulated: (1) that both Levon and Bruce were convicted of prior
felonies; (2) that Levon’s civil rights had not been restored as of January 5, 1994, such that he could
legally purchase a firearm on that date; and (3) the Remington 12 gauge was manufactured outside
of the State of Michigan. The district court instructed the jury that Levon could be convicted either
on a theory that he actually possessed the Remington 12 gauge, or on the theory that he aided and
abetted Bruce’s illegal possession of the gun.
After trial and sentencing, the government discovered that Bruce’s civil rights had been
restored by May 2001, such that his possession of the Remington 12 gauge was not illegal at that
time. Because Bruce’s status as a felon in possession was a necessary predicate to finding Levon
guilty on an aiding and abetting theory, and there was no evidence that Levon actually or
constructively possessed the Remington 12 gauge when it was seized in May 2001, the government
now concedes that Levon’s conviction under § 922(g) should be reversed.
II. DISCUSSION
A. Speedy Trial Act
The STA issue in this case revolves around whether the district court properly excluded six
days from the speedy trial clock: August 31-September 4, 2001, and September 17, 2001. The
parties agree that all time from November 15, 2001 onward was properly excluded under the STA.
The district court found a total of 69 non-excludable days between August 31 and November 14,
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No. 03-2473
2001. We review the court’s legal conclusions de novo and its factual determinations for clear error.
United States v. DeJohn, 368 F.3d 533, 538 (6th Cir. 2004).
Section 3161(c)(1) provides:
In any case in which a plea of not guilty is entered, the trial of a
defendant charged in an information or indictment with the
commission of an offense shall commence within seventy days from
the filing date (and making public) of the information or indictment,
or from the date the defendant has appeared before a judicial officer
of the court in which the charge is pending, whichever date last
occurs.
18 U.S.C. § 3161(c)(1). Where an indictment charges multiple defendants and the district court has
not granted severance, a single STA clock governs the action. United States v. Culpepper, 898 F.2d
65, 66 (6th Cir. 1990). It is incumbent upon the defendant to file a motion to dismiss for STA
violations prior to the start of trial; failure to do so renders the defendant’s STA claim waived on
appeal. See 18 U.S.C. § 3162(a)(2); United States v. Crossley, 224 F.3d 847, 860 (6th Cir. 2000).
If the district court fails to bring a defendant to trial within seventy days, the indictment “shall be
dismissed on motion of the defendant,” either with or without prejudice. 18 U.S.C. § 3162(a)(2).
However, the statute delineates a number of situations in which the district court may exclude time
from the seventy day calculation, effectively tolling the STA clock. Relevant in the instant case is
§ 3161(h)(1)(F), which excludes “Any period of delay resulting from other proceedings concerning
the defendant, including but not limited to . . . delay resulting from any pretrial motion, from the
filing of the motion through the conclusion of the hearing on, or other prompt disposition of such
motion.”
1. August 31, 2001 to September 4, 2001
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No. 03-2473
Levon first argues that the district court erred in finding that the STA clock began to run on
September 4, 2001, the date he pleaded not guilty, as opposed to August 31, 2001, the date he first
appeared before the court. However, Levon failed to argue before the district court that the STA
clock began to run prior to September 4, and therefore, we agree with the government that he waived
the issue and cannot raise it on appeal. The district court’s opinion and order on the STA issue notes
that “as confirmed at the hearing, Defendant does not argue that any time before September 4, 2001
counts under the STA.” Levon, 2002 WL 31548623 at *2 (emphasis added). It is apparent from this
language in the district court’s opinion that Levon did not merely fail to raise time before September
4, he affirmatively confirmed for the court that he was not arguing the STA clock started running
prior to September 4. This amounts to the “intentional relinquishment or abandonment of a known
right,” and therefore constitutes a clear waiver. See United States v. Olano, 507 U.S. 725, 733
(1993).2
Furthermore, even if Levon had properly preserved an argument regarding August 31-
September 4, we would be bound to reject his claim on the merits. We have previously held that
“[t]he plain meaning of the language of the STA requires a not guilty plea to begin the clock
running.” United States v. O’Dell, 154 F.3d 358, 360 (6th Cir. 1998) (citing 18 U.S.C. §
2
Levon unconvincingly argues that notwithstanding his express confirmation to the district
court that the clock began to run on September 4, the government preserved the running date of the
clock for appeal. Levon points to the government’s STA brief to the district court, in which it listed
as “Defendant’s initial appearance” the period between August 21, 2001, the date of the indictment,
and September 4, 2001, and argued that the entire period was excludable. However, the government
never explicitly argued that the clock began to run on August 21, and in making a motion for
dismissal under the STA, Levon had the burden of proof. Because Levon conceded that the clock
began to run on September 4, we find his argument regarding the government’s district court brief
to be totally without merit.
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No. 03-2473
3161(c)(1)). Defendant did not enter a not guilty plea until September 4, because he was not yet
represented by counsel at his first appearance on August 31. Because “the statute expressly applies
only to cases in which pleas of not guilty have been entered,” the date on which the defendant
pleaded not guilty, rather than the initial appearance without counsel, “started the Speedy Trial Act
clock in this case.” United States v. Nixon, 779 F.2d 126, 130 (2d Cir. 1985) (cited in O’Dell, 154
F.3d at 361); see also United States v. O’Bryant, 775 F.2d 1528, 1531 (11th Cir. 1985) (holding that
STA clock did not begin to run until defendant appeared before district court with counsel and
entered not guilty plea, despite having initially appeared before court several days earlier); cf. United
States v. Tootle, 65 F.3d 381, 383 (4th Cir. 1995) (holding that because plain language of the STA
requires a not guilty plea, STA was not triggered in case where the defendant never entered a not
guilty plea); United States v. Bermea, 30 F.3d 1539, 1567 (5th Cir. 1994) (STA clock begins to run
with indictment or arraignment, whichever comes last). Therefore, even if Levon did not waive the
argument, the STA clock did not begin to run until he pled not guilty on September 4, 2001.
2. September 17, 2001
The district court excluded September 17, 2001 as an “other proceeding concerning the
defendant” under § 3161(h)(1), because a hearing on the potential conflict of interest in Slemaka’s
joint representation of Levon and Bruce was scheduled for that date. However, the problem was
resolved before the hearing occurred, and thus, no hearing was held. Levon argues that because the
hearing was not actually held, September 17 cannot be excluded. In rebuttal, the government argues,
as it did before the district court, that the entire time from September 14, when the court issued an
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No. 03-2473
order setting the hearing date, through September 17, when the matter was resolved, should be
excluded.
We agree with the government that September 14-17 is excludable under the STA. United
States v. Dunbar, 357 F.3d 582 (6th Cir. 2004),3 which was decided after the district court issued
its STA opinion in this case, involved a situation in which the district court learned of a potential
conflict of interest between the defendant and his attorney during a March 14 hearing. The
defendant failed to request appointed counsel on that date, or at subsequent hearings on May 14 and
15. Finally, on May 16, two months after the initial conflict was brought to the court’s attention,
the government filed a motion to resolve the issue, which was actually resolved a week later when
defense counsel withdrew. Id. at 593. This Court stated that “[a]lthough no formal motion was
made before or at the March 14, 2001 appearance, we hold that March 14, 2001 through May 15,
2001 may be excluded under 3161(h)(1) as ‘other proceedings concerning the defendant.’” Id. The
Court also excluded the entire period between the government’s motion on the conflict issue and the
granting of defense counsel’s motion to withdraw, because where a motion requires a hearing, “§
3161(h)(1) provides for the automatic exclusion of ‘the entire period between the filing of the
motion and the conclusion of the hearing’ on that motion.” Id. (quoting Henderson v. United States,
476 U.S. 321, 329 (1986)).
3
The Supreme Court recently granted certiorari and issued a brief order vacating the
judgment and remanding Dunbar back to this Court for reconsideration in light of United States v.
Booker, 125 S. Ct. 738 (2005). See Dunbar v. United States, 125 S. Ct. 1029 (2005). Presumably,
however, the STA issues in the case will not be reconsidered.
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No. 03-2473
While Dunbar is not completely analogous to the present case, we read it to stand for the
proposition that time may be excluded under the STA, in appropriate circumstances,
notwithstanding the lack of a formal motion on the issue. In this case, although neither party made
a formal motion regarding Slemaka’s joint representation of Levon and his brother, the district court
was clearly concerned, sua sponte ordering a hearing on the issue. Clearly, had either party made
a motion concerning Slemaka’s representation, the time between the filing of the motion and the
hearing would have been excluded under § 3161(h)(1)(F). See, e.g., Henderson, 476 U.S. at 329;
Dunbar, 357 F.3d at 593. Essentially, on September 14, the district court made its own motion on
the potential conflict. The fact that the court ordered the hearing sua sponte, as opposed to the
hearing being held on the motion of one of the parties, should not change the result under the STA.
See United States v. Polan, 970 F.2d 1280, 1285 (3d Cir. 1992); cf. United States v. Hohn, 8 F.3d
1301, 1304 (8th Cir. 1993) (excludable delay allowed under § 3161(h)(1)(F) where pretrial services
filed petition, because petition by third-party is the “functional equivalent” of a motion made by a
party).4
In light of Dunbar, we find that the district court’s order setting a hearing on the joint
representation issue should be treated as if it were a motion by one of the parties. Because the
‘motion’ required a hearing, under § 3161(h)(1)(F) the entire time from the filing of the motion
4
In addition, we note that § 3161(h)(1)(F) excludes delay resulting from “any pretrial
motion” without reference to the filer of the motion, and other circuits have found that “[m]otions
excludable under subsection (F) includes any pretrial motion and are not limited to those motions
enumerated in Federal Rule Criminal Procedure 12(b)(2).” Hohn, 8 F.3d at 1305 (citing United
States v. Wilson, 835 F.2d 1440, 1443 (D.C. Cir. 1987) (emphasis in original). This further suggests
to us that the lack of a formal motion by one of the parties does not preclude delay from being
excludable under § 3161(h)(1)(F).
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No. 03-2473
through the hearing should be excluded, i.e., September 14 thorough September 17. Further, the fact
that the hearing was not actually held is inconsequential, because § 3161(h)(1)(F) excludes delay
“from the filing of the motion through the conclusion of the hearing on, or other prompt disposition
of, such motion.” (emphasis added). Under the plain terms of subsection (F), September 17 is
excludable as the date on which the ‘motion’ was promptly disposed of. Therefore, we hold that
September 14, 2001 thorough September 17, 2001 is excludable under the STA.
3. The Final STA Calculation
Starting the STA clock on September 4, 2001,5 and excluding September 14, 15, 16 and 17,
as well as October 3, which the parties agree should be excluded, we count a total of sixty-six non-
excludable days from the entry of Levon’s not guilty plea to the commencement of his trial. Thus,
we hold that there was no STA violation.
B. Firearm Possession
Levon argues, and the government concedes, that his conviction under § 922(g) should be
reversed. The conviction was predicated on Bruce’s status as a felon in possession, and it is now
clear that Bruce was legally entitled to possess a firearm when his house was raided in May 2001.
Accordingly, we reverse Levon’s conviction for being a felon in possession of a firearm under §
922(g).
C. Sentencing
5
It is undisputed that September 4, the date of Levon’s arraignment, is itself properly
excludable under § 3161(h)(1)(F).
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No. 03-2473
Levon was convicted of conspiracy to manufacture marijuana under 21 U.S.C. § 846, which
states that the penalty for violating the statute is the same “as those proscribed for the offense, the
commission of which is the object of the attempt or conspiracy.” The relevant substantive statutory
offense for Levon’s conduct is 21 U.S.C. § 841, which prescribes a ten-year mandatory minimum
sentence if the defendant has a prior felony drug conviction. 21 U.S.C. § 841(b)(1)(B)(vii). It is
undisputed that Levon was previously convicted in Michigan state court in 1979 of delivery of PCP,
and in 1990 of possession with intent to deliver marijuana, both of which qualify as prior felony
drug convictions under § 841(b)(1)(B)(vii). Thus, the 120 month sentence imposed by the district
court was the minimum sentence allowed under the relevant statute.
Levon argues on appeal that his prior convictions needed to be proved to a jury beyond a
reasonable doubt. However, he concedes that in Almendarez-Torres v. United States, 523 U.S. 224
(1998), the Supreme Court held that prior convictions need not be proved to a jury beyond a
reasonable doubt. Levon also concedes that Booker does not overrule Almendarez-Torres, because
it excludes prior convictions from the facts which must be proved to a jury. Booker, 125 S. Ct. at
756. Further, although Levon does not raise it, the Supreme Court’s post-Booker decision in
Shepard v. United States, 125 S. Ct. 1254 (2005), which addresses the use of prior convictions to
sentence a defendant under the Armed Career Criminal Act, is not implicated here as it is undisputed
that Levon has two qualifying prior felony drug convictions. Finally, we note that there are no
unresolved Booker issues in this case, because the indictment alleged that Levon conspired to
manufacture 1,000 or more plants or marijuana, the jury convicted him of that amount, and he
received the statutorily mandated minimum sentence of ten years, which applies to 100 or more
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No. 03-2473
marijuana plants. Levon’s Sixth Amendment rights were not violated, and he could not have
received a lower sentence for his crime of conviction than the sentence he did, in fact, receive;
therefore, we affirm Levon’s 120 month sentence.
III. CONCLUSION
For the above reasons, we AFFIRM Levon’s conviction for conspiracy to manufacture
marijuana under 21 U.S.C. § 846 and his 120 month sentence. However, we REVERSE Levon’s
conviction under 18 U.S.C. § 922(g), and REMAND to the district court with instructions to enter
judgment dismissing the firearm count.
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