                     United States Court of Appeals
                             FOR THE EIGHTH CIRCUIT
                                 ________________

                                 Nos. 04-3357/3358
                                 ________________

United States of America,                  *
                                           *
      Appellee/Cross-Appellant,            *
                                           *       Appeals from the United States
      v.                                   *       District Court for the
                                           *       District of Nebraska.
Francisco Lozano,                          *
                                           *            [PUBLISHED]
      Appellant/Cross-Appellee.            *

                                 ________________

                                 Submitted: March 15, 2005
                                     Filed: June 29, 2005 (corrected 7/13/05)
                                 ________________

Before WOLLMAN, LAY, and HANSEN, Circuit Judges.
                        ________________

HANSEN, Circuit Judge.

       Francisco Lozano was charged with a drug conspiracy in the United States
District Court for the Northern District of Iowa. After a series of events detailed
below, he was charged with a drug conspiracy and two counts of drug distribution in
the United States District Court for the District of Nebraska, and the indictment in the
Northern District of Iowa was dismissed on the government’s motion. Pursuant to
a negotiated plea agreement, Lozano pleaded guilty to the two Nebraska distribution
charges, and the Nebraska conspiracy charge was dismissed. The district court
sentenced him to 116 months in prison and five years of supervised release.
       Lozano appeals his convictions and sentence. The government cross-appeals
his sentence. For the reasons discussed below, we affirm Lozano’s convictions, but
we vacate his sentence and remand the case to the district court for resentencing.

                                         I.
       A grand jury in the Northern District of Iowa returned an indictment on July
17, 2001, charging Lozano with conspiring to distribute 500 grams or more of
methamphetamine mixture from 1999 through February 20, 2001. On April 25, 2002,
the grand jury returned a superseding indictment charging him with conspiring to
distribute a pound of methamphetamine mixture containing 50 grams or more of pure
methamphetamine from February 2000 through February 20, 2001.

       Lozano pleaded guilty to the superseding indictment on May 7, 2002. The
district court deferred acceptance of his guilty plea pending its review of the
presentence report (PSR). Before sentencing, Lozano moved to withdraw his guilty
plea. The district court denied his motion. On August 26, 2002, the district court
sentenced Lozano to 160 months in prison and five years of supervised release.

       Lozano appealed the district court’s denial of his motion to withdraw his guilty
plea, and this court reversed. Because the amended version of Federal Rule of
Criminal Procedure 11(d) had gone into effect, allowing a defendant to withdraw his
guilty plea “for any reason or no reason” before the district court formally accepted
his plea, this court concluded that the district court should not have required Lozano
to show a “fair and just reason” to withdraw his plea. See United States v. Lozano,
63 Fed. Appx. 962, 963 (8th Cir. 2003) (unpublished).

       After remand, Lozano moved to dismiss the indictment on October 14, 2003,
alleging a speedy trial violation. The district court had taken no action on this motion
by October 24, 2003, when the government moved to dismiss the indictment, noting



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that Lozano had just been indicted in the District of Nebraska for related conduct. On
October 28, 2003, the district court granted the government’s motion.

       On October 23, 2003, a grand jury in the District of Nebraska had returned an
indictment charging Lozano with three crimes. First, he was charged with the same
offense he had been charged with in the Northern District of Iowa: conspiring to
distribute a pound of methamphetamine mixture containing 50 grams or more of pure
methamphetamine from February 2000 through February 20, 2001. Second, he was
charged with distributing 50 grams or more of methamphetamine mixture on February
15, 2001. Third, he was charged with distributing 50 grams or more of
methamphetamine mixture on February 20, 2001.

       On February 11, 2004, Lozano moved to dismiss the indictment, alleging a
speedy trial violation. The district court denied his motion. Lozano pleaded guilty
on May 28, 2004, to the two distribution charges. In the written plea agreement, the
parties stipulated that he would be held responsible for 50-150 grams of actual
methamphetamine, his base offense level would be 32, and he would receive a three-
level reduction for acceptance of responsibility. The government agreed to dismiss
the conspiracy charge. In the plea agreement, Lozano reserved the right to raise
speedy trial issues on appeal.

       Prior to sentencing, Lozano filed a motion arguing that the United States
Sentencing Guidelines were unconstitutional in light of Blakely v. Washington, 124
S. Ct. 2531 (2004). At sentencing, the district court refused to declare the Guidelines
unconstitutional in their entirety, but the court did conclude that Blakely applied to
the Guidelines and precluded the two-level enhancement for obstruction of justice
recommended by the PSR because it was based on facts beyond those Lozano had
admitted. The effect of this ruling was to reduce his Guidelines imprisonment range
to 121-151 months rather than the 151-188 months recommended by the PSR. The
district court granted Lozano a five-month downward departure to reflect time served

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from February 20 through July 17, 2001, and sentenced him to 116 months in prison
and five years of supervised release.

       Lozano appeals, arguing that the district court erred by denying his motion to
dismiss the indictment for a speedy trial violation and by failing to declare the
Guidelines unconstitutional as a whole in light of Blakely. The government cross-
appeals, arguing that Lozano should have received an enhancement for obstruction
of justice. We address each matter in turn.

                                          II.
       Lozano first argues that the Speedy Trial Act was violated. The speedy trial
clock was reset to 70 days and began running anew when the United States District
Court for the Northern District of Iowa received this court’s mandate from Lozano’s
prior appeal. See 18 U.S.C. § 3161(e). Our focus is on what happened subsequently.

       Lozano is correct that the Speedy Trial Act prevents the government from
continuously resetting the speedy trial clock by dismissing and refiling indictments
against the same defendant for the same offense. The defendant is protected by “the
rule that when an indictment . . . is dismissed at the motion of the government and a
second charge is filed for the same offense, the time between the dismissal and the
second charge is excluded but not the time before the dismissal.” United States v.
Long, 900 F.2d 1270, 1274 n.2 (8th Cir. 1990) (emphasis omitted) (citing 18 U.S.C.
§ 3161(h)(6)). Section 3161(h)(6) excludes the following time from the 70-day
period:

      If the information or indictment is dismissed upon motion of the
      attorney for the Government and thereafter a charge is filed against the
      defendant for the same offense, or any offense required to be joined with
      that offense, any period of delay from the date the charge was dismissed
      to the date the time limitation would commence to run as to the
      subsequent charge had there been no previous charge.

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18 U.S.C. § 3161(h)(6) (emphasis added).

       Because one of the charges brought against Lozano in the District of Nebraska
was the same as the charge brought against him in the Northern District of Iowa--
conspiring to distribute a pound of methamphetamine mixture containing 50 grams
or more of pure methamphetamine from February 2000 through February 20, 2001--
the speedy trial clock that began running in Iowa continued running in Nebraska as
to the conspiracy charge. Lozano was not convicted of the conspiracy charge,
however; it was dismissed pursuant to his plea agreement when he pleaded guilty to
the two distribution charges. Given that the remedy for a Speedy Trial Act violation
is dismissal of the charge in question, and the conspiracy charge has already been
dismissed, Lozano cannot demonstrate prejudice and has no viable claim.

        Turning to the distribution charges, it is clear that they are not the “same
offense” as the conspiracy charge within the meaning of § 3161(h)(6). For Speedy
Trial Act purposes, the substantive offense of drug distribution is different from the
inchoate offense of conspiring to distribute drugs. See United States v. Brown, 183
F.3d 1306, 1314-15 (11th Cir.), cert. denied, 528 U.S. 1066 (1999). It does not matter
if the offenses arise from the same underlying facts; it matters only that they require
proof of different elements. See id. It is also clear that the distribution charges are
not “offense[s] required to be joined with” the conspiracy charge within the meaning
of § 3161(h)(6). See United States v. Rein, 848 F.2d 777, 780 (7th Cir. 1988).

       Thus, because the conspiracy charge was dismissed and Lozano was convicted
only of the distribution charges, and the 70-day speedy trial clock for the distribution
charges ran for no more than 49 non-excludable days, we conclude that Lozano is
entitled to no relief under the Speedy Trial Act.

       Next, Lozano argues that even if his statutory right to a speedy trial was not
violated, his constitutional right to a speedy trial was violated. Again, we look only

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to the charges for which he was actually convicted, not the dismissed charges. The
period between Lozano’s indictment and guilty plea in the District of Nebraska was
slightly less than seven months. We have previously held that “a little over seven
months” was “too brief a delay to trigger review of [a defendant’s] Sixth Amendment
speedy trial claim.” United States v. McFarland, 116 F.3d 316, 318 (8th Cir.) (citing
Doggett v. United States, 505 U.S. 647, 651-52 & n.1 (1992)), cert. denied, 522 U.S.
961 (1997). Thus, given the shorter delay in the case at bar, we conclude that Lozano
is entitled to no relief under the Speedy Trial Clause of the Sixth Amendment.

                                          III.
        Both Lozano and the government raise Blakely-based challenges to the
sentence imposed by the district court. The United States Supreme Court decided
United States v. Booker, 125 S. Ct. 738 (2005), after briefing was completed, and that
decision makes clear that both parties are entitled to resentencing because the district
court applied an incorrect remedy. The remedy applied by the district court was to
treat the Guidelines as mandatory but limit its consideration to the facts admitted by
the defendant; the remedy prescribed by Booker is to treat the Guidelines as advisory
and not be limited to the facts admitted by the defendant.1 Accordingly, we remand
for resentencing under Booker’s remedy.




      1
        See id. at 769 (“In respondent Fanfan’s case, the District Court held Blakely
applicable to the Guidelines. It then imposed a sentence that was authorized by the
jury’s verdict--a sentence lower than the sentence authorized by the Guidelines as
written. Thus, Fanfan’s sentence does not violate the Sixth Amendment.
Nonetheless, the Government (and the defendant should he so choose) may seek
resentencing under the system set forth in today’s opinions. Hence we vacate the
judgment of the District Court and remand the case for further proceedings consistent
with this opinion.”).
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                                          IV.
     Accordingly, we affirm Lozano’s convictions, but we vacate his sentence and
remand this case to the district court for resentencing consistent with Booker.
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