                                                                         F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                            DEC 18 1998
                                TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                               Clerk

 UNITED STATES OF AMERICA,

              Plaintiff-Appellee,

 v.                                                      No. 97-1345
                                                     (D.C. 94-CR-169-N)
 JOAN MARIE YOUNG,                                  (District of Colorado)

              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             This order and judgment is not binding precedent, except under the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. Young’s 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,


                                            2
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 husband’s 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. Young’s

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.


                                             3
Young’s 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. Young’s 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 court’s

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 court’s 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.”      Perez v.

Sullivan , 793 F.2d 249, 253 (10th Cir. 1986) (quoting       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



                                              4
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).


                                              5
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


                                          6
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. Young’s

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. Young’s writ of mandamus,

the district court set a hearing date, and issued an order stating, “[t]he hearing


                                             7
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 169-

N. (Sept. 4, 1997). At the hearing, the district judge first denied Mrs. Young’s

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.         See

United States v. Cureton , 89 F.3d 469, 472 (7th Cir. 1996)      (holding that version

of procedural rules in effect at time of sentencing governed)        . Under this version,


                                             8
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


                                           9
sentencing.

      Again, however, we must apply the version of Rule 32 in effect when Mrs.

Young’s 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 defendant’s 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 government’s 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 court’s factual determinations at sentencing


                                          10
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 court’s 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


                                            11
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


                                            12
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 defendant’s acceptance of responsibility.”         Id. at 689

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

       A defendant’s 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. Young’s 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 court’s decision”).

       Accordingly, we AFFIRM the judgment of the district court.




                                           14
The mandate shall issue forthwith.

                                          ENTERED FOR THE COURT,



                                          Robert H. Henry
                                          Circuit Judge




                                     15
