                                                                       F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                                    PUBLISH
                                                                        MAY 12 1997
                  UNITED STATES COURT OF APPEALS
                                                                    PATRICK FISHER
                                                                             Clerk
                               TENTH CIRCUIT




UNITED STATES OF AMERICA,

             Plaintiff-Appellee,

v.
                                                      No. 96-3176
JAMES RUFUS ARNOLD, III, aka
James R. Arnold, II, aka James R.
Arnold, Jr., aka James R. Arnold, III,
aka Jamie Arnold, aka James Arnold,
aka Adrian Franklin,

             Defendant-Appellant.




                  Appeal from the United States District Court
                            for the District of Kansas
                           (D.C. No. 95-10046-FGT)


Debra L. Barnett, Assistant United States Attorney (Jackie N. Williams, United
States Attorney, with her on the brief), Office of the United States Attorney,
Wichita, KS.

Jon S. Womack, Marshall, Womack & Ingram, Wichita, KS.


Before SEYMOUR Chief Judge, PORFILIO and MURPHY, Circuit Judges.


MURPHY, Circuit Judge.
      Having examined the briefs and the appellate record, this panel determines

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. This case is therefore

ordered submitted without oral argument.

      Appellant, James R. Arnold, appeals his conviction and sentence in the

United States District Court for the District of Kansas for possession of a firearm

after a conviction punishable by more than a year imprisonment, a violation of 18

U.S.C. § 922(g)(1); and possession of narcotics, a violation of 21 U.S.C. § 844.

      Appellant raises two issues: (1) whether the district court lacked

jurisdiction to prosecute the appellant under 18 U.S.C. § 922(g)(1) because the

previous conviction was not punishable by more than a year imprisonment; and

(2) whether the Speedy Trial Act (hereinafter “STA”), 18 U.S.C. §§ 3161-74, was

violated.

      This court exercises appellate jurisdiction pursuant to 28 U.S.C. § 1291 and

affirms the conviction under 18 U.S.C. § 922(g)(1) but remands for further

proceedings to address the speedy trial question.



                               I. JURISDICTION

      18 U.S.C. § 922(g) provides, “It shall be unlawful for any person . . . who

has been convicted in any court of, [sic] a crime punishable by imprisonment for a


                                         -2-
term exceeding one year . . . to ship or transport in interstate . . . commerce, or

possess in or affecting [sic] commerce, any firearm . . . .” The appellant argues

that the district court lacked jurisdiction over the charge under this statute

because he could not have been sentenced for more than one year for the

underlying previous felony conviction.

      Appellant’s prior conviction was for criminal possession of a firearm in

violation of Kan. Stat. Ann. § 21-4204, for which he received a sentence of 11

months imprisonment. Under Kansas’ sentencing scheme, appellant’s conviction

amounted to a severity level of eight. See Kan. Stat. Ann. § 21-4204(d) (1994

Supp.). As such, the maximum punishment was 23 months. See Id. § 21-4704(a)

(1994 Supp.).

      Appellant acknowledges that the crime for which he was convicted carried

a maximum possible punishment of 23 months. He argues, however, that the

sentencing court could actually only have given him a maximum sentence of 11

months when it took into account his limited criminal history, as it was required

to do under Kansas law. See Kan. Stat. Ann. § 21-4704.

      The appellant’s argument fails because the Kansas state trial judge

possessed the power to depart upward from the presumptive sentence based on




                                          -3-
aggravating factors. 1 See Kan. Stat. Ann. § 21-4716(b)(2) (1994 Supp.); United

States v. Minnick, 949 F.2d 8, 9-10 (1st Cir. 1991) (holding that despite New

Jersey statutory presumption against imprisonment for the crime in question, it

qualified as “punishable by imprisonment for a term exceeding one year” since

the sentencing court had discretion under certain circumstances to impose a term

of incarceration exceeding one year); United States v. Currier, 821 F.2d 52, 58

(1st Cir. 1987).

      Appellant attempts to rewrite 18 U.S.C. § 922(g)(1) by converting the word

“punishable” into “punished.” What matters is not the actual sentence which the

appellant received, but the maximum possible sentence. See Currier, 821 F.2d at

58; Dickerson v. New Banner Inst., Inc., 460 U.S. 103, 113 (1983) (finding it

irrelevant whether the individual in question actually receives prison term when

statute imposes disabilities on those previously convicted of crimes punishable by

imprisonment for a term exceeding one year); see also United States v. Place, 561

F.2d 213, 215 (10th Cir. 1977) (holding that defendant’s actual sentence of only

one year was irrelevant to question of whether court could have imposed longer

sentence). This reflects the clear language of the statute, which imposes criminal



      1
       Consideration of aggravating factors is discretionary with the trial judge,
and the list of factors is expressly nonexclusive. Kan. Stat. Ann. § 21-4716(b)(2)
(1994 Supp.). As a consequence, until actual imposition of sentence, appellant
could not predict whether his sentence would exceed one year.

                                        -4-
liability on offenders who have previously been convicted of “a crime punishable

by imprisonment for a term exceeding one year.” 18 U.S.C. § 922(g) (emphasis

added).

      This court thus rejects the appellant’s argument as to this first issue.



                                II. SPEEDY TRIAL

      The appellee argues both that the appellant waived his right to raise the

STA issue on appeal, and that even if he did not waive this right, the STA was not

violated.

      Appellee’s waiver argument is based on its claim that the appellant failed

to make an STA-based motion to dismiss the indictment prior to trial. To be sure,

“[f]ailure of the defendant to move for dismissal prior to trial . . . shall constitute

a waiver of the right to dismissal” under the provisions of the STA in question.

See 18 U.S.C. § 3162(a)(2).

      The appellant, however, did present the STA issue to the district court,

albeit not in the form of a formal, written motion. In a chambers conference on

the record, appellant’s lawyer stated, “Your Honor, there is one other

thing. . . . As I look through this file and as my client looked through, he thinks

there’s a speedy trial issue . . . From June 15th to August 24th is the passage of

time which he believes should be counted towards violation of the Speedy Trial


                                          -5-
Act.” The appellee claims that this presentation was insufficient to preserve the

issue for appeal because (1) it was not raised prior to trial; and (2) it did not

constitute a motion as required by 18 U.S.C. § 3162(a)(2).

        The cases upon which appellee relies do not support its arguments. In

support of the argument that the STA issue was not raised prior to trial, appellee

cites United States v. McKinnell, 888 F.2d 669 (10th Cir. 1989), abrogated on

other grounds by United States v. Wacker, 72 F.3d 1453 (10th Cir. 1995). In that

case, however, the STA claim was not allowed because it was raised for the first

time in a motion for a new trial following a conviction. See id. at 676. In the

case at bar, the STA claim was raised on the day of trial but before the trial

commenced. For purposes of the STA, a jury trial commences with the voir dire.

See United States v. Patten, 826 F.2d 198, 199 (2nd Cir. 1987). The appellant

timely raised the STA issue in a conference prior to the commencement of voir

dire.

        In support of the argument that the STA claim was defective because not

presented in the form of a motion, the appellee cites United States v. Rogers,

1996 WL 466662 (10th Cir. 1996). Although Rogers is unpublished, it may be

considered as persuasive authority. See 10th Cir. R. 36.3. It is distinguishable,

however, from the case at bar. In Rogers, an STA claim was denied because it




                                           -6-
was raised only in the form of a demand on the part of the defendant for a speedy

trial, rather than a claim that the STA had been violated. The court stated,

       We do not believe that appellant’s demand for a speedy trial
       constitutes a motion to dismiss the indictment, for it did not bring to
       the trial court’s attention the fact that appellant believed the Act had
       been violated. In effect, appellant sat on his hands below, allowed
       this lengthy case to be tried fully, and raises now for the first time
       the claim that the indictment should have been dismissed. Rather
       than allow appellant’s “wait and see” tactic to prevail, we find that
       he has waived this objection.

1996 WL 466662 at **2 (quoting United States v. Stitzer, 785 F.2d 1506, 1520

(11th Cir. 1986)). In contrast, the appellant in this case did not rely upon a mere

demand for a speedy trial. Instead, he brought to the trial court’s attention his

belief that the STA had been violated. Rogers thus does not support the

appellee’s waiver argument.

       Appellant’s statements to the district court prior to trial, in which he

claimed a violation of the STA, satisfy the motion requirements of 18 U.S.C. §

3162(a)(2). The district court itself acknowledged the adequacy of appellant’s

presentation when it stated in response, “If there is a speedy trial violation, then

you’ve raised the issue; . . . that will protect you. . . . [I]f there was a trial and

the prosecution got the conviction and it violated the Speedy Trial Act, . . . we’d

have to set it aside and dismiss.”

       The merits of the speedy trial claim are not as clear. The STA requires that

the trial of a criminal defendant begin within 70 days, not counting “excludable

                                            -7-
time” as defined in 18 U.S.C. § 3162(h), after the filing of the indictment, or from

the date that the defendant first appears before a judicial officer, whichever is

later (hereinafter “STA start date”). 18 U.S.C. § 3161(c)(1).

      All of the dates in question in this case occurred in 1995. Appellant was

indicted April 6, but made his first appearance April 18; thus, his STA start date

was April 18. The date of trial was October 24. Accordingly, well over 70 days

elapsed between the STA start date and the date of trial. The question thus

becomes how many of these days were excludable.

      The only basis for excludable time addressed by either the appellant or the

appellee is the processing of pre-trial motions. Two provisions of the STA are

relevant when considering excludable time for pre-trial motions. First, 18 U.S.C.

§ 3161(h)(1)(F) provides that “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” constitutes excludable time. Second, 18 U.S.C. §

3161(h)(1)(J) provides that “delay reasonably attributable to any period, not to

exceed thirty days, during which any proceeding concerning the defendant is

actually under advisement by the court” constitutes excludable time.

      Therefore, “when a pretrial motion requires a hearing[,] subsection (F) on

its face excludes the entire period between the filing of the motion and the

conclusion of the hearing.” Henderson v. United States, 476 U.S. 321, 329


                                          -8-
(1986). When a pretrial motion does not require a hearing, subsection (F)

excludes the period between the filing of the motion and the prompt disposition

thereof. Id. “[T]he promptness requirement was ‘intended to provide a point at

which time will cease to be excluded, where motions are decided on the papers

filed without hearing.’ The ‘point at which time will cease to be excluded’ is

identified by subsection (J), which permits an exclusion of 30 days from the time

a motion is actually ‘under advisement’ by the court.” Id. (quoting S. Rep. No.

96-212, at 34 (1979)). The 30-day period discussed in subsection (J) begins when

“all necessary information is before the court.” United States v. Willie, 941 F.2d

1384, 1388 n. 2 (10th Cir. 1991). Appellant’s theory as to when and how 70 days

of nonexcludable time elapsed, despite the filing and processing of various pre-

trial motions, must be evaluated under these principles.

      Appellant alleges two periods of nonexcludable time: (1) between the STA

start date, April 18 and April 28, when the appellant filed his first Motion to

Compel Discovery, 10 days of nonexcludable time elapsed; (2) between June 15,

the date the Judge denied an appeal motion from the Magistrate’s Order of

Detention, and August 24, when the appellant filed his second Motion to Compel

Discovery, 70 more days of nonexcludable time elapsed. Counting those two

periods, appellant contends the STA 70-day limit was reached on August 14. The




                                         -9-
appellant does not argue that any of the days after August 24 constituted

nonexcludable time.

      The appellee responds that while 10 days of nonexcludable time elapsed

between the STA start date, April 18 and April 28, no nonexcludable time

occurred after April 28, since the appellant’s Motion to Compel Discovery, filed

April 28, was not disposed of until the date of trial, October 24. 2 Thus, appellee’s

position is that only ten days of nonexcludable time elapsed between the STA

start date, April 18, and the date of the first Motion to Compel Discovery, April

28. The appellee makes no claim that the April 28 motion was addressed in a

hearing, and fails to account for limitations on excludable time vis-a-vis motions

not requiring a hearing but taken under advisement. Thus, this court cannot rely

upon the April 28 Motion to Compel Discovery as grounds for exclusion of the

period of time beginning April 28 and extending through the date of trial, October

24.

      This court is left to consider the veracity of the appellant’s version in light

of the record. Unfortunately, we are unable to do so. There are numerous



      2
       The appellee sets out additional motion-based grounds for excluding the
period of May 26 through June 8, and the period of August 29 through September
26. These proffered periods of excludable time, however, do not relate to
appellant’s proposed 70 days of nonexcludable time, which run from April 18
through April 28 and from June 15 through August 14. Thus, they do not impact
the debate.

                                         -10-
motions mentioned at various points in the record but which are not addressed in

the appellant’s STA theory. 3 It is impossible for this court, without exact

identification, copies or explanations of these motions, to determine whether they

created excludable time within the appellant’s 70-day count of nonexcludable

time. When appellant raised the issue, the district court merely acknowledged

that the issue had been raised, without considering whether the STA had in fact

been violated. Appellant again raised the STA issue in its Motion for a New

Trial, but the district court again failed to address or rule specifically on that

issue.

         The record on the speedy trial issue appears inadequate. Regardless of the

adequacy of the record, neither court nor counsel provided any guidance for

consideration of that record on appeal. The difficulties faced by this court under

those circumstances in examining the speedy trial issue for the first time on

appeal are insurmountable. 4


       See, e.g., R., Vol. II, Doc. 111 at 5 (“Mr. Womack [defense attorney]: But
         3

understanding that when the defense files a motion, that stops the time from
running. I think examination of the file would indicate that the Court did
consider some motions filed by the defense on June 15th and entered orders from
the bench. . . . On July 18th there’s a minute order.”(emphasis added)); R., Vol. I,
Doc. 23 (Aug. 24 Motion to Compel Discovery) (making reference to a May 26
“motion for complete discovery”).

       For example, the 30-day excludable time period authorized under 18
         4

U.S.C. § 3161(h)(1)(J) begins when all necessary information is before the court.
United States v. Willie, 941 F.2d 1384, 1388 n. 2 (10th Cir. 1991). This court
cannot determine when this occurred for the motions in question.

                                          -11-
      We therefore REMAND to the district court for consideration,

development of the record, and ruling on the STA issue. In all other respects, the

judgment is AFFIRMED.




                                       -12-
