                                                                             FILED
                                                                 United States Court of Appeals
                                      PUBLISH                            Tenth Circuit

                      UNITED STATES COURT OF APPEALS                      June 12, 2019

                                                                     Elisabeth A. Shumaker
                            FOR THE TENTH CIRCUIT                        Clerk of Court
                        _________________________________

 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,

 v.                                                         No. 18-3052

 MARCO ANTONIO CORTES-GOMEZ,

       Defendant - Appellant.
                      _________________________________

                     Appeal from the United States District Court
                              for the District of Kansas
                         (D.C. No. 5:16-CR-40091-DDC-1)
                       _________________________________

Ryan A. Ray, Norman Wohlgemuth Chandler Jeter Barnett & Ray, Tulsa, Oklahoma, for
Defendant-Appellant.

James A. Brown, Assistant United States Attorney (Stephen R. McAllister, United States
Attorney, with him on the brief), District of Kansas, Topeka, Kansas, for Plaintiff-
Appellee.

                        _________________________________

Before HARTZ, SEYMOUR, and HOLMES, Circuit Judges.
                  _________________________________

SEYMOUR, Circuit Judge.
                   _________________________________

      On January 13, 2016, Marco Antonio Cortes-Gomez was indicted with two

codefendants on counts related to a methamphetamine conspiracy (“Cortes-Gomez I”).
His trial began on November 29, 2016. The interim included two superseding

indictments, dismissal of the indictment and the filing of a new one with identical charges

(“Cortes-Gomez II”), the addition of two codefendants, and various continuances and

delays that the district court found to be excluded under the Speedy Trial Act of 1974, 18

U.S.C. § 3161 et seq. (“STA”). Ultimately, 329 days passed between Mr. Cortes-

Gomez’s arraignment and the beginning of his trial.

       A jury found Mr. Cortes-Gomez guilty on both counts. He appeals, contending

that the delay between his arraignment and trial violated his statutory and constitutional

rights to a speedy trial. He also challenges the district court’s refusal to provide his

requested jury instruction regarding accomplice testimony and its application of two

sentencing enhancements. We affirm.



                                             I.

       Only the procedural facts relevant to our analysis are recounted here. Mr. Cortes-

Gomez, Ms. Juanita Garcia, and Ms. Brenda Sanders were indicted on January 13, 2016

for their respective involvement in a conspiracy to distribute methamphetamine. Trial

was initially set for March 29, 2016, then continued to April 6, then to July 19. Both Ms.

Sanders and Ms. Garcia entered guilty pleas, but two additional codefendants were

included in the first superseding indictment on March 29: Mr. James Ross and Mr. Robert

Worthington. On May 19, Mr. Worthington was the last codefendant arrested and

arraigned.




                                              2
       On June 21, the district court granted Mr. Worthington an “ends-of-justice”

continuance under 18 U.S.C. § 3161(h)(7)(A), setting a new trial date of October 11. The

court made written findings to justify this delay, including the need to allow counsel for

Mr. Worthington and Mr. Ross adequate time to prepare for trial. The court declined to

calculate Mr. Cortes-Gomez’s Speedy Trial Act deadline until it ruled on his renewed

motion to sever, which it then denied on July 19. At that time, the district court excluded

two intervals from Mr. Cortes-Gomez’s STA clock which are the subject of this appeal:

(1) the time between defendant’s arraignment and that of his last codefendant, Mr.

Worthington (January 21 to May 19), and (2) the delay stemming from Mr.

Worthington’s ends-of-justice continuance (July 19 to October 11). Mr. Cortes-Gomez

repeatedly and zealously asserted his rights to a speedy trial, including moving for

severance from his codefendants on two separate occasions.

        Mr. Cortes-Gomez’s trial began on November 29 and all four of his former

codefendants testified against him. Each co-conspirator testified about entering into plea

agreements with the government and/or expecting to benefit by testifying against

defendant. Mr. Cortes-Gomez requested a specific jury instruction for evaluating

accomplice testimony, but the district court rejected it in favor of this court’s pattern

instruction.

       Mr. Cortes-Gomez was convicted by the jury on both counts. At sentencing, the

district court overruled his objections to the two sentencing enhancements applied in the

Presentence Investigation Report (“PSR”): a four-point enhancement for being the




                                              3
organizer or leader of the enterprise and a two-point enhancement for engaging in

criminal conduct as his livelihood. The PSR determined defendant’s enhanced offense

level to be 44, with a guideline imprisonment sentence of life. The district court varied

below the guideline range to avoid an unwarranted sentencing disparity between

defendant and his co-conspirators, sentencing Mr. Cortes-Gomez to concurrent sentences

of 240 months imprisonment on Count 1, conspiracy to possess with intent to distribute

methamphetamine, and 294 months imprisonment on Count 2, attempted possession with

intent to distribute 500 grams or more of methamphetamine.

        Mr. Cortes-Gomez raises several issues on appeal, and we address each one in

turn.



                                            II.

                                      SPEEDY TRIAL

        We review the district court’s compliance with the legal requirements of the

Speedy Trial Act de novo and its factual findings for clear error. United States v. Larson,

627 F.3d 1198, 1203 (10th Cir. 2010). “When 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.”

United States v. Vogl, 374 F.3d 976, 982 (10th Cir. 2004) (brackets and citation




                                              4
omitted).1 Likewise, “[w]e review a defendant's claim under the Sixth Amendment's

Speedy Trial Clause de novo, accepting the district court's factual findings unless they are

clearly erroneous.” United States v. Medina, 918 F.3d 774, 788 (10th Cir. 2019)

(citations omitted).

           A. Speedy Trial Act

       The Speedy Trial Act requires that a defendant be tried within seventy days of the

filing of the indictment or the defendant’s first appearance, whichever occurs later. 18

U.S.C. § 3161(c)(1). This seventy-day period is subject to various exclusions of time

under 18 U.S.C. § 3161(h). As relevant here, § 3161(h)(6) (the “codefendant

subsection”) excludes a “reasonable period of delay when the defendant is joined for trial

with a codefendant as to whom the time for trial has not run and no motion for severance

has been granted.” Another provision, § 3161(h)(7) (the “ends-of-justice subsection”),

excludes “[a]ny period of delay resulting from a continuance granted by any judge … if

the judge granted such continuance on the basis of his findings that the ends of justice

served by taking such action outweigh the best interest of the public and the defendant in

a speedy trial.”2


       1
        Mr. Cortes-Gomez asserts a different standard of review for district courts’
decisions to grant ends-of-justice continuances under § (h)(7), which depends on the
nature of what is being reviewed. Aplt. Br. at 19–20. Because we conclude that we
should evaluate the propriety of the continuance in question under § (h)(6), however, we
need not address this proffered standard.
       2
        When we issued several of the cases cited herein, including United States v.
Theron, 782 F.2d 1510 (10th Cir. 1986), and United States v. Vogl, 374 F.3d 976 (10th
Cir. 2004), the ends-of-justice subsection was set forth in 18 U.S.C. § 3161(h)(8) and the


                                             5
       Mr. Cortes-Gomez challenges the excludability of two delays: (1) the time

between Mr. Cortes-Gomez’s and his last codefendant’s arraignments in Cortes-Gomez I

(January 21 to May 19), and (2) the delay stemming from his codefendant’s ends-of-

justice continuance (July 19 to October 11). Because both delays are attributable to

codefendants, they are properly analyzed under § 3161(h)(6) .3 See, e.g., United States v.

Zar, 790 F.3d 1036, 1043 (10th Cir. 2015) (“[I]n light of its denial of the severance

motion, the court held that the [defendants] remained subject to § 3161(h)(6) . . . .”). The

general rule under this provision is that all defendants who are joined for trial fall within

the speedy trial computation of the latest codefendant joined. United States v. Margheim,




codefendant subsection in § 3161(h)(7). The statute has since been amended and the
subsections re-codified in § (h)(7) and § (h)(6) as described above. The language in both
provisions remained the same. To avoid confusion, throughout this opinion we
consistently refer to the subsections as they are currently numbered, even when
discussing cases prior to the statute’s amendment.
       3
          The district court’s order denying Mr. Cortes-Gomez’s renewed motion to sever
creates some confusion about the provision(s) on which it relied. On appeal, Mr. Cortes-
Gomez argues that we should review the delay under the ends-of-justice subsection
because that is what the district court expressly invoked. See, e.g., Aplt. Reply Br. at 3–
5. However, because our case law is clear that the codefendant subsection is the proper
statutory provision under which to consider the application of Mr. Worthington’s ends-
of-justice delay to Mr. Cortes-Gomez, we will restrict our analysis accordingly. See, e.g.,
Theron, 782 F.2d at 1513 (explaining that time excluded on account of codefendants
must be evaluated under the codefendant subsection instead of the ends-of-justice
subsection); United States v. Mobile Materials, Inc., 871 F.2d 902, 911 (10th Cir. 1989)
abrogated on other grounds by Bloate v. United States, 559 U.S. 196 (2010) (reviewing
Theron and reiterating that the codefendant subsection—not ends-of-justice—was the
correct statutory provision to regulate exclusions based on codefendant delay); see also
S.E.C. v. Chenery Corp., 318 U.S. 80, 88 (1943) (“[I]n reviewing the decision of a lower
court, it must be affirmed if the result is correct although the lower court relied upon a
wrong ground or gave a wrong reason.”) (quotation marks and citation omitted).


                                              6
770 F.3d 1312, 1318–19 (10th Cir. 2014). “When the delay is reasonable, an exclusion

for delay attributable to one defendant is applicable to all co-defendants.” United States

v. Thomas, 749 F.3d 1302, 1308 (10th Cir. 2014) (quotation marks, brackets and citation

omitted).

       In determining whether delay attributable to a codefendant is reasonable, a court
       must examine all relevant circumstances. Our circuit has articulated three factors
       to guide district courts in this exercise: (1) whether the defendant is free on bond,
       (2) whether the defendant zealously pursued a speedy trial, and (3) whether the
       circumstances further the purpose behind the exclusion to ‘accommodate the
       efficient use of prosecutorial and judicial resources in trying multiple defendants
       in a single trial.’

Margheim, 770 F.3d at 1319.

       “The obvious purpose behind [this] exclusion is to accommodate the efficient use

of prosecutorial and judicial resources in trying multiple defendants in a single trial.”

United States v. Theron, 782 F.2d 1510, 1514 (10th Cir. 1986). There is a “strong

presumption favoring trying properly joined defendants together.” Zar, 790 F.3d at 1043;

see also Zafiro v. United States, 506 U.S. 534, 537 (1993). “A single trial is ideal when

the government plans to recite a single factual history, put on a single array of evidence,

and call a single group of witnesses.” Margheim, 770 F.3d at 1319 (quotation marks and

citations omitted); see also United States v. Tranakos, 911 F.2d 1422, 1426 (10th Cir.

1990) (“[T]his is such a case [where a single trial is preferred], for the defendants were

charged with a single conspiracy.”). This inquiry is highly fact-sensitive. Margheim,

770 F.3d at 1320.

       We are satisfied that the district court properly weighed the relevant factors and




                                              7
reached the correct results with respect to both exclusions challenged here. The parties

agree that the first two Margheim factors favor Mr. Cortes-Gomez; their disagreement

concerns the district court’s ultimate weighing of the factors and its exercise of discretion

in deeming the delays reasonable. The district court found the delays reasonable because,

although Mr. Cortes-Gomez was in custody4 and zealously pursuing a speedy trial, the

facts of this conspiracy would render two separate trials based on the same evidence an

inefficient use of prosecutorial and judicial resources.

       A joint trial for a drug conspiracy is the type of efficient use of judicial resources

contemplated by the codefendant subsection, and there was every reason to believe that a

joint trial would be appropriate here. See id. at 1321 (“[W]hen feasible, courts prefer

joint conspiracy trials . . . .”). The district court reviewed the government’s theory of the

evidence and found that the government planned to recite a single factual history, put on

a single array of evidence, and call a single group of witnesses. Aplt. Supp. App., Vol. II

at 76. This fact-sensitive finding was not clearly in error. The reality that a joint trial did

not take place because Mr. Cortes-Gomez’s codefendants eventually entered guilty pleas

does not invalidate the district court’s original belief that a joint trial would be

appropriate in this drug conspiracy case. This distinguishes Mr. Cortes-Gomez’s

situation from the cases he cites on appeal, in which the district courts had prospective


       4
          Because the parties agree that the first Margheim factor weighs in Mr. Cortes-
Gomez’s favor, we need not examine how the analysis of Mr. Cortes-Gomez’s restricted
liberty is impacted by the existence of an ICE detainer which could be exercised against
him. But see United States v. Mayes, 917 F.2d 457, 460 (10th Cir. 1990) (“One important
factor is that they were already incarcerated, so the delay did not affect their liberty.”).


                                               8
notice that joint trials would probably not be practicable. See, e.g., United States v.

Messer, 197 F.3d 330, 338 (9th Cir. 1999) (concluding preliminary circumstances

strongly suggested the codefendant would not be available for trial for a significant

length of time, if ever, so delay would not increase the likelihood of joint trial).

       The district court properly considered the relevant statutory factors in finding that

all codefendant delays were reasonable in the circumstances of this case. We see no

reason to disturb the court’s judgment balancing the opposing considerations, and we

therefore affirm its conclusion that both delays were reasonably excluded under the STA.

           B. Sixth Amendment

       The Sixth Amendment guarantees defendants in all criminal prosecutions the right

to a speedy and public trial; however, it is “impossible to determine with precision when

the right has been denied.” Barker v. Wingo, 407 U.S. 514, 521 (1972). We balance four

factors in making this determination: (1) the length of delay, (2) the reason for the delay,

(3) the defendant’s assertion of his right, and (4) prejudice to the defendant. United

States v. Black, 830 F.3d 1099, 1111 (10th Cir. 2016).

       “The threshold factor to consider is the length of the delay. We need only inquire

into the other factors if the period of delay is presumptively prejudicial.” United States v.

Lugo, 170 F.3d 996, 1002 (10th Cir. 1999) (quotation marks and citation omitted); see

also Medina, 918 F.3d at 780 (10th Cir. 2019) (“Simply to trigger a speedy trial analysis,

an accused must allege that the interval between accusation and trial has crossed the

threshold dividing ordinary from ‘presumptively prejudicial’ delay”) (brackets and




                                               9
citation omitted).

       While we have observed that there is no bright line beyond which pretrial delay
       will trigger a Barker analysis, we are also cognizant of the Supreme Court’s
       observation in Doggett v. United States, 505 U.S. 647, 112 S. Ct. 2686, 120
       L.Ed.2d 520 (1992), that depending on the nature of the charges, the lower courts
       have generally found postaccusation delay presumptively prejudicial at least as it
       approaches one year.

United States v. Gomez, 67 F.3d 1515, 1521 (10th Cir. 1995). “[T]he length of delay that

will provoke such an inquiry is necessarily dependent upon the peculiar circumstances of

the case. To take but one example, the delay that can be tolerated for an ordinary street

crime is considerably less than for a serious, complex conspiracy charge.” Barker, 407

U.S. at 530–31.

       In this circuit, the threshold essentially rests at the one-year mark itself. See, e.g.,

United States v. Abdush-Shakur, 465 F.3d 458, 465 (10th Cir. 2006) (reasoning that a

delay of fourteen months, but not eleven, “might qualify as presumptively prejudicial”);

United States v. Nixon, 919 F.3d 1265, 1269 (10th Cir. 2019) (“Because this period

exceeded one year, it created a presumption of prejudice, triggering further scrutiny.”)

(emphasis added); United States v. Banks, 761 F.3d 1163, 1183 (10th Cir. 2014)

(referencing the “presumption of prejudice that attaches to delays greater than one year”)

(emphasis added); Margheim, 770 F.3d at 1326 (referencing “the bare minimum [of a

year] needed to trigger judicial examination”) (citation omitted, alteration in original,

emphasis added); United States v. Seltzer, 595 F.3d 1170, 1176 (10th Cir. 2010) (“[T]he

length of the delay crossed the threshold from “ordinary” to “presumptively prejudicial”

because it was more than a year . . .”) (emphasis added). The ten- and one-half-month



                                              10
delay at issue here does not meet this threshold of presumptive prejudice, particularly

considering the nature of the charges: a conspiracy, which entitles toleration of longer

delay. Because we hold that the delay is not presumptively prejudicial, we need not

inquire into the other factors.



                                           III.

                                  JURY INSTRUCTIONS

       “This court reviews the district court’s refusal to give a proposed instruction for

abuse of discretion, but considers de novo whether the jury instructions, as a whole,

correctly state the law.” Vehicle Mkt. Research, Inc. v. Mitchell Int'l, Inc., 839 F.3d

1251, 1256 (10th Cir. 2016).

       Mr. Cortes-Gomez requested a very particular jury instruction which emphasized

that an accomplice who testifies “has a motive to falsify or exaggerate his or her

testimony against the defendant.” Rec., Vol. I at 194. He argues on appeal that because

this instruction was refused, the jury here was not properly instructed. We disagree.

       The instruction the district court actually gave here followed this court’s pattern

instruction5 and satisfied our rule requiring otherwise uncorroborated accomplice


       5
         The pattern instructions are prepared by the Criminal Pattern Jury Instruction
Committee of this court and were most recently updated in February 2018. The Judicial
Council of the Tenth Circuit has authorized distribution of these instructions to the
District Judges for their aid and assistance; however, “this resolution shall not be
construed as an adjudicative approval of the content of such instructions, which must
await case-by-case review by the Court.” Judicial Council of the Tenth Circuit
Resolution, September 1, 2005.


                                             11
testimony to be accompanied by proper cautionary instructions. See Tenth Circuit

Criminal Pattern Jury Instruction § 1.14; United States v. Owens, 460 F.2d 268, 269 (10th

Cir. 1972) (“The rule is established in this Circuit, however, that the court must instruct

the jury that testimony of accomplices must be carefully scrutinized, weighed with great

care, and received with caution.”); Aple. Br. at 46 (the jury instruction given by the

district court advised “[y]ou should receive [testimony from an accomplice] with caution

and weigh it with great care.”). In contrast to the cases cited by Mr. Cortes-Gomez, the

jury here was given a specific cautionary instruction regarding accomplice testimony in

addition to an instruction regarding witness credibility generally. Compare Rec., Vol. I

at 237 (cautionary accomplice instruction) and 241 (witness credibility instruction) with

United States v. Hill, 627 F.2d 1052, 1054 (10th Cir. 1980) (instruction regarding witness

credibility in general was insufficient when accomplice testimony was uncorroborated;

proper cautionary instruction required) and Owens, 460 F.2d at 269 (conviction based on

uncorroborated accomplice testimony without cautionary instruction was plain error).

The district court did not err in holding that this instruction “sufficiently communicated

that the jury should receive and consider accomplice testimony cautiously.” Rec., Vol. I

at 453.


                                             IV.

                             SENTENCING ENHANCEMENTS

          “When reviewing the district court’s calculation of the guidelines, we review legal

questions de novo and factual findings for clear error, giving due deference to the district



                                               12
court’s application of the guidelines to the facts.” United States v. Halliday, 665 F.3d

1219, 1222–23 (10th Cir. 2011) (quotation marks and citation omitted). Factual findings

are clearly erroneous only if they are without factual support in the record or if this court,

considering all the evidence, is left with a definite and firm conviction that a mistake has

been made. Zar, 790 F.3d at 1046.

       If the district court’s account of the evidence is plausible in light of the record
       viewed in its entirety, the court of appeals may not reverse it even though
       convinced that had it been sitting as the trier of fact, it would have weighed the
       evidence differently. Where there are two permissible views of the evidence, the
       factfinder’s choice between them cannot be clearly erroneous.

Anderson v. Bessemer City, 470 U.S. 564, 573–74 (1985).

            A. Aggravating Role Adjustment

       Mr. Cortes-Gomez appeals the application of a four-point enhancement based on

his role as “an organizer or leader of a criminal activity that involved five or more

participants or was otherwise extensive.” U.S.S.G. § 3B1.1(a). He need only have

managed or supervised one of his co-conspirators to qualify for this enhancement. Id.

cmt. n.2.

       The district court found that this conspiracy included at least five participants, that

Mr. Cortes-Gomez explicitly recruited and directed at least one of the other participants,

and that he “was situated at the upper end, or at least the upper ends, of a vertically

integrated drug-trafficking organization.” Rec., Vol. III at 40. Even Mr. Cortes-Gomez

acknowledges on appeal that “there was testimony that [he] directed [Ms.] Morales to

perform certain actions.” Aplt. Br. at 53. The district court’s factual findings are




                                              13
supported by the record and this enhancement was therefore properly applied.

            B. Criminal Livelihood Enhancement

         The district court also overruled Mr. Cortes-Gomez’s objection to the PSR’s two-

level enhancement for committing the offense as “part of a pattern of criminal conduct”

that he was “engaged in as a livelihood.” U.S.S.G. §§ 2D1.1. A “pattern of criminal

conduct” is defined as “planned criminal acts occurring over a substantial period of

time.” U.S.S.G. § 4B1.3 cmt. n.1. Such conduct is considered “engaged in as a

livelihood” if (i) income derived from the criminal activity in any twelve-month period

exceeded 2,000 times the then existing minimum wage, and (ii) the totality of the

circumstances indicates the criminal conduct was the defendant’s primary occupation in

that twelve-month period. Id. cmt. n.2.

         Mr. Cortes-Gomez’s only argument on appeal, with no case law cited as support,

is that the district court erred in relying on “inconsistent” accomplice testimony to find

that Mr. Cortes-Gomez’s pattern of criminal conduct was “what [he] did for his living.”

Aplt. Br. at 55, 54. He presents his own and Ms. Morales’s testimony that he had other

employment as contradicting and thereby invalidating this finding. Yet the district court

expressly considered and rejected this testimony regarding his other employment, finding

it not credible “in light of the testimony to the contrary.” Rec., Vol. III at 48. “Our

deference to the district court is especially appropriate when the issue concerns questions

of a witness credibility.” United States v. Litchfield, 959 F.2d 1514, 1523 (10th Cir.

1992).




                                             14
       The record contains sufficient support for the district court’s findings. This

includes Ms. Garcia’s testimony that she never knew Mr. Cortes-Gomez to have any

other employment during the multi-year period they were living together in a romantic

relationship, Rec., Vol. I at 325, Trial Transcript at 643–644, and Ms. Morales’s

testimony that Mr. Cortes-Gomez passed approximately $300,000 in drug proceeds

through her bank account, see id.., Vol. III at 22. The district court’s factual findings are

a permissible view of the evidence, and Mr. Cortes-Gomez’s alternative reading does not

render them clearly erroneous. See Anderson, 470 U.S. at 574.

       For all the foregoing reasons, we AFFIRM.




                                             15
