                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 17-2004
                         ___________________________

                              United States of America

                         lllllllllllllllllllllPlaintiff - Appellee

                                            v.

                          Frank Dontrell Washington, Jr.

                       lllllllllllllllllllllDefendant - Appellant
                                       ____________

                     Appeal from United States District Court
                    for the Northern District of Iowa - Dubuque
                                  ____________

                            Submitted: January 12, 2018
                               Filed: June 27, 2018
                                  ____________

Before SMITH, Chief Judge, MELLOY and SHEPHERD, Circuit Judges.
                             ____________

SHEPHERD, Circuit Judge.

       This appeal raises, primarily, two issues of interpretation. Frank Washington
argues that the district court erred in its interpretation of the Speedy Trial Act and
crafted an unconstitutionally vague condition of supervised release. We agree with
the latter challenge, but disagree with the former assertion. We also disagree with
Washington’s only other claim on appeal—that his sentence was substantively
unreasonable. Thus, we affirm in part and remand narrowly for the district court to
reconsider the challenged special condition.

                                          I.

        The underlying facts are relatively straightforward. Washington was arrested
at his residence on June 9, 2016 on the basis of a complaint that alleged possession
with intent to distribute marijuana. See 21 U.S.C. § 841(a)(1). Just over a month
later—33 days to be precise—a grand jury charged Washington with possession with
intent to distribute within 1000 feet of a school. See id. §§ 841(b)(1)(D), 860(a).
Washington made his initial appearance on the indictment on October 3, 2016.
Shortly thereafter, he moved to dismiss the indictment because of Speedy Trial Act
violations. See 18 U.S.C. §§ 3161-3174.1 The district court denied that motion.
Washington then went to trial. After three days of deliberation, the jury returned a
guilty verdict. At sentencing, Washington’s advisory Sentencing Guidelines range
was set at 21 to 27 months imprisonment. The district court eventually sentenced him
to 27 months imprisonment with four years of supervised release. The term of
supervised release included a special condition with respect to gang association and
activity (Special Condition #3).

       On appeal, Washington challenges the district court’s ruling on his Speedy
Trial Act claim, the substantive reasonableness of his sentence, and Special Condition
#3. We address each in turn.

                                          II.

     The Speedy Trial Act was passed by Congress “to give effect to the [S]ixth
[A]mendment right” to a speedy trial. Betterman v. Montana, 136 S. Ct. 1609, 1616


      1
          We refer sometimes to the Speedy Trial Act as the “Act.”

                                          -2-
(2016) (internal quotation marks omitted). On appeal, Washington argues that the
government violated the Act’s direction that “no more than 30 days pass between
arrest and indictment,” id., given 33 days passed between his arrest and indictment.
When the government runs afoul of this timeframe, the Act sanctions the government
by stating: “such charge . . . contained in such complaint shall be dismissed or
otherwise dropped.” 18 U.S.C. § 3162(a)(1) (emphasis added). As noted above, the
complaint and indictment in this case charged two different offenses. Sensing the
textual barrier to his desired remedy, dismissal of the indictment, Washington urges
adoption of the so-called “gilding exception.” In theory, but not often in practice, this
doctrine allows dismissal under the Act where “a [later] charge is one that merely
annotates in more detail the same charge alleged in the [complaint].” See United
States v. Bailey, 111 F.3d 1229, 1236 (5th Cir. 1997). The district court declined to
apply the gilding exception, but noted that our circuit has yet to speak definitively on
its validity. We review the district court’s legal conclusion de novo. United States
v. Herbst, 666 F.3d 504, 509 (8th Cir. 2012).

       We find that there is no gilding exception to the Speedy Trial Act. Our prior
holdings—while not taking the gilding exception head on—seemingly foreclose its
application to the Speedy Trial Act. See, e.g, United States v. Miller, 23 F.3d 194,
199 (8th Cir. 1994) (“A defendant’s arrest on one charge does not necessarily trigger
the right to a speedy trial on another charge filed after his arrest.”). More
importantly, those holdings are in line with the text of the statute. Again, the Act
only permits dismissal of “such charge . . . contained in such [earlier] complaint.” 18
U.S.C. § 3162(a)(1). Given the unambiguous wording of the statute, it should hardly
come as a surprise that courts recently “have questioned [the gilding exception’s]
doctrinal validity” as applied to the Speedy Trial Act. United States v. Trudeau, 812
F.3d 578, 587 (7th Cir.), cert. denied, 137 S. Ct. 566 (2016). We decline to read a
“gilding exception” into clear statutory language. Cf. Henson v. Santander Consumer
USA Inc., 137 S. Ct. 1718, 1726 (2017) (“[T]he proper role of the judiciary . . . [is]
to apply, not amend, the work of the People’s representatives.”).

                                          -3-
       Washington believes this would provide a perverse incentive to the
government. At oral argument, it was suggested that the government could wait “a
day, a month, a year, two years and simply get around the Speedy Trial Act by adding
a protected zone location.” But, the solution to that hypothetical scenario is not to
“do[] violence to the statutory language” in the Speedy Trial Act. Jennings v.
Rodriguez, 138 S. Ct. 830, 848 (2018) (internal quotation marks omitted). Instead,
protection may lie in the Sixth Amendment right to a speedy trial—a constitutional
right distinct from the Act. United States v. Shepard, 462 F.3d 847, 863 (8th Cir.
2006) (“Sixth Amendment and Speedy Trial Act challenges for delay are reviewed
independently of one another.” (internal quotation marks omitted)). Given that it was
not briefed before us, we do not examine whether the Sixth Amendment was violated
here.

       Additionally, even if we were to recognize a gilding exception to the Speedy
Trial Act, that would not lead to the dismissal of Washington’s indictment. The
majority of our sister circuits that have considered the question have agreed that a
later-indicted charge which contains different elements than the charge in the initial
complaint is not subject to dismissal under the gilding exception.2 This is in line
“with Supreme Court precedent analyzing multiple prosecutions.” Bailey, 111 F.3d
at 1236. Here, the indicted crime required an additional element—evidence that
Washington was within 1000 feet of a school—beyond the original possession with
intent to distribute charge in the complaint. The doctrine, as widely understood, does
not offer support for Washington’s claim.

      His argument fares no better under a minority view of the gilding exception.
This view, most prominently adopted by the Tenth Circuit, places emphasis on the


      2
       United States v. Gaskin, 364 F.3d 438, 456 (2d Cir. 2004); United States v.
Watkins, 339 F.3d 167, 176 (3d Cir. 2003); Bailey, 111 F.3d at 1237; United States
v. Derose, 74 F.3d 1177, 1184 (11th Cir. 1996).

                                         -4-
underlying factual allegations. See United States v. Andrews, 790 F.2d 803, 809
(10th Cir. 1986) (dismissing superseding indictment because it “allege[d] no facts
different” than previous charging instrument); see also United States v. Peppin, 365
F. Supp. 2d 261, 269 (N.D.N.Y. 2005) (finding that gilding exception may apply even
when “new charges contain additional elements”).3 Even under this view, the
allegations of how far Washington was from a school in the indictment constituted
new facts not included in the initial complaint.

    In sum, we do not adopt a “gilding exception” to the Speedy Trial Act
and—even if we did—it would not warrant dismissal of Washington’s claim.

                                         III.

       Next, Washington challenges the substantive reasonableness of his sentence.
He argues that the district court erred by not varying downward from his Guidelines
range because “(1) of the impact of the protected location enhancement . . . ;(2) of
the small quantity of marijuana at issue; and (3) the legalization of marijuana by
several states.” We review for abuse of discretion, which “occurs when a district
court (1) fails to consider a relevant factor that should have received significant
weight; (2) gives significant weight to an improper or irrelevant factor; or (3)
considers only the appropriate factors but in weighing those factors commits a clear
error of judgment.” United States v. Marshall, 2018 WL 2465485, at *2 (8th Cir.
June 4, 2018) (per curiam) (internal quotation marks omitted). A “[s]entence[] within
the [G]uideline range,” however, “[is] presumed to be substantively reasonable.”
United States v. Meadows, 866 F.3d 913, 920 (8th Cir. 2017) (internal quotation
marks omitted). And it is a “defendant’s burden to rebut the presumption and to show

      3
       Peppin is squarely at odds with the Second Circuit’s holding in Gaskin “that
pleadings that add elements to the government’s burden of proof beyond those
required for the lesser included charges in a complaint do more than gild the original
charges.” 364 F.3d at 456.

                                         -5-
that the sentence should have been lower.” United States v. Funke, 846 F.3d 998,
1000 (8th Cir. 2017) (internal quotation marks omitted).

       Washington has offered no evidence to rebut our presumption. The district
court carefully considered the 18 U.S.C. § 3553(a) factors—and Washington’s
arguments—but in the end found a Guidelines sentence was necessary because
Washington “is at extremely high risk to recidivate” in addition to a number of other
factors, including his “gang membership” and “lack of respect for authority,
specifically the police.” Put another way, the district court balanced, and weighed,
the § 3553(a) factors in a manner different than Washington would have liked. We,
however, grant district courts “wide latitude to weigh the § 3553(a) in each case and
assign some factors greater weight than others in determining an appropriate
sentence.” United States v. Ritchison, 887 F.3d 365, 370 (8th Cir. 2018) (internal
quotation marks omitted). Given this, the district court did not abuse its discretion
in sentencing within the Guidelines.

                                         IV.

        Finally, Washington argues that Special Condition #3 of his supervised release,
which deals with gang association, is unconstitutionally vague. In full, the condition
states:

      The defendant must not knowingly associate with any member, prospect,
      or associate member of any gang without the prior approval of the
      United States Probation Office. If the defendant is found to be in the
      company of such individuals while wearing the clothing, colors, or
      insignia of a gang, the Court will presume that this association was for
      the purpose of participating in gang activities.




                                         -6-
While a district court has “broad discretion” to impose special conditions, when a
defendant challenges a special condition on constitutional grounds, as in this case, we
review de novo. United States v. Kelly, 625 F.3d 516, 520 (8th Cir. 2010).

       We agree with Washington that the special condition at issue here is
unconstitutionally vague for three reasons. First, the term gang is undefined such that
it gives no notice as to which groups of people are actually covered. “Gang” is not
defined in any relevant statute. Cf. United States v. Green, 618 F.3d 120, 123 (2d
Cir. 2010) (per curiam) (“The term ‘criminal street gang’ is cabined by a clear
statutory definition that would permit Green to comply with the condition and permit
officers to consistently enforce the condition.”). And the term is not delineated by
common use. Black’s Law Dictionary defines “gang” as a “group of persons who go
about together or act in concert, esp. for antisocial or criminal purposes.” Gang,
Black’s Law Dictionary (10th ed. 2014). Thus, gangs are not necessarily tied to
criminal activity. See LoFranco v. U.S. Parole Comm’n, 986 F. Supp. 796, 810
(S.D.N.Y. 1997) (finding term “other motorcycle gangs” unconstitutionally vague
because it ensnares legitimate “motorcycle groups” that count individuals like
“Arnold Schwarzenegger” as members), aff’d, 175 F.3d 1008 (2d Cir. 1999). The
lack of statutory definition and its wide-ranging use mean that the term “gang” fails
to “convey[] sufficiently definite warning as to the proscribed conduct” the district
court wants Washington to avoid “when measured by common understanding and
practices.” Jordan v. De George, 341 U.S. 223, 231-32 (1951).

       Second, the term “associate member” also lacks specific meaning. If it were
used to mean a “member” of a gang, a term already used by the Condition, “associate
member” would be repetitive. And it is a canon of reading legal texts that no word
“should needlessly be given an interpretation that causes it to duplicate another
provision or to have no consequence.” Antonin Scalia & Bryan A. Garner, Reading
Law: The Interpretation of Legal Texts 174 (West 2012). The other possible reading
of the term is that “associate member” means somebody who associates with actual

                                         -7-
gang members. This reading suffers from the same vagueness problems we discussed
above with respect to the usage of “gang.” Such a reading “could even preclude
[Washington] from meeting with his probation officer” because it encompasses “those
who may have only a social connection to an individual gang member.” United
States v. Johnson, 626 F.3d 1085, 1091 (9th Cir. 2010).

       Third, any sort of mens rea requirement that is imposed by the first sentence
of the condition—that the “defendant must not knowingly associate [with gang
members]”—vanishes if Washington is found in the “company” of gang members
while wearing “clothing, colors, or insignia” of a gang. In that case, the condition
states that “the Court will presume that this association was for purpose of
participating in gang activities.” This presumption runs smack against the Supreme
Court’s admonition that “association” should not be read to include “incidental
contacts.” Arciniega v. Freeman, 404 U.S. 4, 4 (1971) (per curiam).

       We vacate Special Condition #3 and remand to the district court to address the
constitutional deficiencies we have noted. On remand, if a refashioned condition is
imposed, the district court should make explicit the mens rea necessary for a
violation. Cf. Staples v. United States, 511 U.S. 600, 606 (1994) (noting “offenses
that require no mens rea generally are disfavored”).

                                         V.

      For the foregoing reasons, we affirm in part and remand narrowly for re-
sentencing consistent with this opinion.
                      ______________________________




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