                           RECOMMENDED FOR FULL-TEXT PUBLICATION
                               Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                      File Name: 18a0118p.06

                  UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT



 UNITED STATES OF AMERICA,                                ┐
                                    Plaintiff-Appellee,   │
                                                          │
                                                          >      No. 17-3424
        v.                                                │
                                                          │
                                                          │
 CLIFTON A. SATTERWHITE,                                  │
                                 Defendant-Appellant.     │
                                                          ┘

                        Appeal from the United States District Court
                       for the Southern District of Ohio at Cincinnati.
                  No. 2:16-cr-00205-1—Michael H. Watson, District Judge.

                               Decided and Filed: June 22, 2018

             Before: COLE, Chief Judge; CLAY and THAPAR, Circuit Judges.
                                  _________________

                                          COUNSEL

ON BRIEF: Christian J. Grostic, KUSHNER, HAMED & GROSTIC CO., LPA, Cleveland,
Ohio, for Appellant. Christopher K. Barnes, UNITED STATES ATTORNEY’S OFFICE,
Cincinnati, Ohio, for Appellee.
                                      _________________

                                           OPINION
                                      _________________

       CLAY, Circuit Judge. Clifton Satterwhite (“Satterwhite”) appeals from the judgment
entered by the district court sentencing him to 240 months of imprisonment. Satterwhite was
convicted of one count of conspiracy to violate the Hobbs Act, in violation of 18 U.S.C.
§ 1951(a), two counts of inference with commerce by threats or violence, in violation of
18 U.S.C. § 1951(a), and two counts of brandishing a firearm during a crime of violence, in
 No. 17-3424                       United States v. Satterwhite                            Page 2


violation of 18 U.S.C. § 924(c)(1)(A)(ii). For the reasons set forth below, we AFFIRM the
judgment of the district court.

                                        BACKGROUND

        On January 22, 2016, the government filed a criminal complaint against Satterwhite
alleging that he participated in a number of robberies in the Columbus, Ohio area.             The
complaint requested an arrest warrant against Satterwhite for interstate robbery, in violation of
18 U.S.C. § 1951, felon in possession of a firearm, in violation of 18 U.S.C. § 922(g), and
brandishing a firearm during a crime of violence, in violation of 18 U.S.C. § 924(c). That same
day, the magistrate judge issued an arrest warrant for Satterwhite, and Satterwhite was arrested.

        Pursuant to 18 U.S.C. § 3161 (the “Speedy Trial Act”), “[a]ny information or indictment
charging an individual with the commission of an offense shall be filed within thirty days from
the date on which such individual was arrested or served with a summons in connection with
such charges.” Id. § 3161(b). The original deadline for filing an information or indictment
against Satterwhite was February 22, 2016. However, the parties filed six joint motions for
waiver of this thirty day time period and to extend the time period for an additional thirty days.
The delay resulted from the parties discussing the resolution of the case by way of filing an
information and a plea agreement. The court granted all of these motions, concluding that “[t]he
ends of justice served by the granting of a continuance outweigh the best interests of the public
and the defendant in a speedy trial.” (R. 11, 13, 15, 17, 22, 24.) See 18 U.S.C. § 3161(h)(7)(A).
In doing so, the court extended the time for filing an indictment or information until August 21,
2016.

        Subsequent to the extended deadline, on October 7, 2016, the government filed an
information charging Satterwhite with five counts, including one count of Hobbs Act conspiracy,
in violation of 18 U.S.C. § 1951(a), two counts of Hobbs Act robbery, in violation of 18 U.S.C.
§ 1951(a), and two counts of brandishing a firearm during a crime of violence, in violation of
18 U.S.C. § 924(c). That same day, the government filed an executed written plea agreement
pursuant to which Satterwhite pleaded guilty to all five counts of the information. In the plea
 No. 17-3424                       United States v. Satterwhite                             Page 3


agreement, the parties agreed to a binding recommended sentence of 240 months and Satterwhite
agreed to waive the right to appeal his sentence.

       On November 29, 2016, Satterwhite was arraigned on the information.               The court
accepted Satterwhite’s plea of guilty. On April 18, 2017, the district court sentenced Satterwhite
to 240 months of imprisonment in accordance with the plea agreement, but noted that
Satterwhite’s advisory sentencing range was 471 months. Satterwhite did not challenge the
government’s untimely filing of the information before the district court.

       On April 25, 2017, Satterwhite filed his notice of appeal. On appeal, Satterwhite argues
that the district court lacked jurisdiction over his case because the time limits for the government
to file an information or indictment after arresting a defendant are jurisdictional and the
government failed to file the information against Satterwhite until after the time limit had
expired.

                                          DISCUSSION

I.     Time Limits for Filing an Information or Indictment under 18 U.S.C. § 3161(b)

                                       Standard of Review

       The Court reviews jurisdictional issues de novo. Steel Co. v. Citizens for a Better Env’t,
523 U.S. 83, 94 (1998).

                                             Analysis

       The Speedy Trial Act (“STA”) requires that a defendant be indicted within thirty days of
arrest and tried within seventy days of the later of the filing of the information or indictment or
the defendant’s initial appearance before a judicial officer. 18 U.S.C. § 3161(b), (c)(1). The
time for filing an information or an indictment or for bringing a defendant to trial may be
extended in certain circumstances.      Id. § 3161(h).    This includes when a judge orders a
continuance based on a finding that “the ends of justice served by taking such action outweigh
the best interest of the public and the defendant in a speedy trial.” Id. § 3161(h)(7)(A). The
remedy for a violation of these time limits is dismissal of the indictment or information either
with or without prejudice, depending on a court’s consideration of several factors. Id. § 3162(a).
 No. 17-3424                        United States v. Satterwhite                             Page 4


       In this case, there is no dispute that “the parties’ failure to seek a further interest-of-
justice continuance resulted in more tha[n] 30-non-excludable days passing before the
government filed (and Satterwhite pleaded guilty to) an information.”            (Gov’t Br. at 11.)
However, because he unconditionally pleaded guilty, Satterwhite waived all preceding non-
jurisdictional defects in the proceedings. Tollett v. Henderson, 411 U.S. 258, 267 (1973); Class
v. United States, 138 S. Ct. 798, 805 (2018); United States v. Pickett, 941 F.2d 411, 416–17 (6th
Cir. 1991). Consequently, Satterwhite cannot now raise his speedy indictment claim unless the
thirty day rule is a jurisdictional requirement.

       Because this Court has not yet considered this issue, we must decide whether the thirty
day speedy indictment rule is “jurisdictional.” There is a difference between “a rule governing
subject-matter jurisdiction and an inflexible claim-processing rule.” Kontrick v. Ryan, 540 U.S.
443, 456 (2004). Claim-processing rules should not be described as jurisdictional. Henderson
ex rel. Henderson v. Shinseki, 562 U.S. 428, 435 (2011). “These are rules that seek to promote
the orderly progress of litigation by requiring that the parties take certain procedural steps at
certain specified times.” Id. (citations omitted). A ‘“claim-processing rule, even if unalterable
on a party’s application,’ does not reduce the adjudicatory domain of a tribunal and is ordinarily
‘forfeited if the party asserting the rule waits too long to raise the point.”’ Union Pac. R.R. Co.
v. Bhd. of Locomotive Engineers & Trainmen Gen. Comm. of Adjustment, Cent. Region,
558 U.S. 67, 81–82 (2009) (alteration omitted) (quoting Kontrick, 540 U.S. at 456). By contrast,
“[s]ubject-matter jurisdiction . . . refers to a tribunal’s ‘power to hear a case,’ a matter that ‘can
never be forfeited or waived.’” Id. at 81 (quoting Arbaugh v. Y & H Corp., 546 U.S. 500, 514
(2006)).

       The Supreme Court has noted that “[t]his question is not merely semantic but one of
considerable practical importance for judges and litigants.”         Henderson, 562 U.S. at 434.
“Branding a rule as going to a court’s subject-matter jurisdiction alters the normal operation of
our adversarial system” and “may also result in the waste of judicial resources and may unfairly
prejudice litigants.” Id. Because of the “drastic” consequences of the “jurisdictional label,” the
Supreme Court has “urged that a rule should not be referred to as jurisdictional unless it governs
 No. 17-3424                         United States v. Satterwhite                           Page 5


a court’s adjudicatory capacity . . . . Other rules, even if important and mandatory . . . should not
be given the jurisdictional brand.” Id. at 435 (internal citations omitted).

       Turning to the relevant text of the statute, under § 3161, the STA provides:

       (b) Any information or indictment charging an individual with the commission of
       an offense shall be filed within thirty days from the date on which such individual
       was arrested or served with a summons in connection with such charges. If an
       individual has been charged with a felony in a district in which no grand jury has
       been in session during such thirty-day period, the period of time for filing of the
       indictment shall be extended an additional thirty days.
       (c)(1) In any case in which a plea of not guilty is entered, the trial of a defendant
       charged in an information or indictment with the commission of an offense shall
       commence within seventy days from the filing date (and making public) of the
       information or indictment, or from the date the defendant has appeared before a
       judicial officer of the court in which such charge is pending, whichever date last
       occurs. If a defendant consents in writing to be tried before a magistrate judge on
       a complaint, the trial shall commence within seventy days from the date of such
       consent.

       Under § 3162(a), the STA provides certain consequences, or “[s]anctions,” for failing to
timely indict or bring a defendant to trial:

       (1) If, in the case of any individual against whom a complaint is filed charging
       such individual with an offense, no indictment or information is filed within the
       time limit required by section 3161(b) as extended by section 3161(h) of this
       chapter, such charge against that individual contained in such complaint shall be
       dismissed or otherwise dropped. In determining whether to dismiss the case with
       or without prejudice, the court shall consider, among others, each of the following
       factors: the seriousness of the offense; the facts and circumstances of the case
       which led to the dismissal; and the impact of a reprosecution on the
       administration of this chapter and on the administration of justice.
       (2) If a defendant is not brought to trial within the time limit required by section
       3161(c) as extended by section 3161(h), the information or indictment shall be
       dismissed on motion of the defendant. The defendant shall have the burden of
       proof of supporting such motion but the Government shall have the burden of
       going forward with the evidence in connection with any exclusion of time under
       subparagraph 3161(h)(3). In determining whether to dismiss the case with or
       without prejudice, the court shall consider, among others, each of the following
       factors: the seriousness of the offense; the facts and circumstances of the case
       which led to the dismissal; and the impact of a reprosecution on the
       administration of this chapter and on the administration of justice. Failure of the
 No. 17-3424                           United States v. Satterwhite                                  Page 6


        defendant to move for dismissal prior to trial or entry of a plea of guilty or nolo
        contendere shall constitute a waiver of the right to dismissal under this section.

        The time limit involved in this case is set forth in a statute and is mandatory. This weighs
in favor of finding the rule jurisdictional. See Bowles v. Russell, 551 U.S. 205, 210 (2007).
After all, Congress can “determine when, and under what conditions, federal courts can hear
[cases].” Id. at 213. However, “[n]ot all mandatory prescriptions, however emphatic, are
properly typed jurisdictional.” Union Pac. R.R. Co., 558 U.S. at 81 (quotation marks, citation,
and alteration omitted). And before putting the jurisdictional label on a statutory filing time
limit, we must examine whether “there is any ‘clear’ indication that Congress wanted the rule to
be ‘jurisdictional.’” Henderson, 562 U.S. at 436 (quoting Arbaugh, 546 U.S. at 515–16).

        We do not find a clear indication that Congress wanted the thirty day speedy indictment
rule to be jurisdictional. Key to this Court’s determination is the last sentence of § 3162(a)(2)—
“Failure of the defendant to move for dismissal prior to trial or entry of a plea of guilty or nolo
contendere shall constitute a waiver of the right to dismissal under this section” (emphasis
added). Though this Court has not yet weighed in, several circuits have concluded that the
waiver provision in § 3162(a)(2) applies to all of § 3162, including § 3162(a)(1), meaning that a
defendant waives the right to dismissal for an untimely indictment if the defendant does not
timely raise the claim in the district court. United States v. Cherry, 720 F.3d 161, 166 (4th Cir.
2013); United States v. Hines, 694 F.3d 112, 120 (D.C. Cir. 2012); United States v. Spagnuolo,
469 F.3d 39, 45 (1st Cir. 2006); United States v. Gamboa, 439 F.3d 796, 803–04 (8th Cir. 2006);
United States v. Lewis, 980 F.2d 555, 560 (9th Cir. 1992), abrogated on other grounds by Bloate
v. United States, 559 U.S. 196 (2010).1 We now join those other circuits.

        The waiver provision in § 3162(a)(2) applies to this “section.” “Congress ordinarily
adheres to a hierarchical scheme in subdividing statutory sections.” Koons Buick Pontiac GMC,
Inc. v. Nigh, 543 U.S. 50, 60–61 (2004). Both the House and Senate manuals on legislative
drafting endorse the use of “subsection” for subdivisions beginning with “(a),” “paragraph” for


        1
         See also United States v. Washington, 523 F. App’x 393, 394 (7th Cir. 2013); United States v.
Washington, 543 F. App’x 171, 178 (3d Cir. 2013); United States v. Hinshaw, 243 F. App’x 179, 180–81 (7th Cir.
2007).
 No. 17-3424                        United States v. Satterwhite                            Page 7


subdivisions beginning with “(1),” “subparagraph” for subdivisions beginning with “(A),” and
“clause” for subdivisions beginning with “(i).” Id. at 60–61. Under this scheme, as written,
Congress was referring to all of § 3162 when providing for waiver because it used the phrase
“under this section.” Cherry, 720 F.3d at 165–66; Hines, 694 F.3d at 118; Spagnuolo, 469 F.3d
at 44. Had Congress intended to limit the waiver provision to dismissals for untimely trials only,
and not untimely indictments, we would expect the statute to have used the phrase “under this
paragraph.” Hines, 694 F.3d at 118; Spagnuolo, 469 F.3d at 44. Our expectation is bolstered
by the fact that Congress used this customary language elsewhere in the STA.               See, e.g.,
18 U.S.C. § 3161(d)(2) (“The sanctions of section 3162 apply to this subsection.”); 18 U.S.C.
§ 3161(h)(3)(B) (“For purposes of subparagraph (A) of this paragraph . . . .”); 18 U.S.C.
§ 3161(h)(7)(B)(iv) (referring to “clause (ii)”) (emphases added).

       We recognize that the waiver language appears only in § 3162(a)(2), and not in
§ 3162(a)(1), and that if Congress had intended for a speedy indictment claim to be waived upon
failure to move for dismissal before trial, one might have expected Congress to have included the
waiver language in both (a)(1) and (a)(2). After all, “[w]here Congress includes particular
language in one section of a statute but omits it in another section of the same Act, it is generally
presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.”
Russello v. United States, 464 U.S. 16, 23 (1983) (quoting United States v. Wong Kim Bo,
472 F.2d 720, 722 (5th Cir. 1972)). However, we will not go against the plain language of the
statute and hold that “section” does not mean “section.” See Cherry, 720 F.3d at 165.

       Furthermore, the purposes of the STA support applying the waiver provision to
§ 3162(a)(1). For instance, the Supreme Court stated that § 3162(a)(2) “served two unrelated
purposes”:

       First, § 3162(a)(2) assigns the role of spotting violations of the Act to defendants-
       for the obvious reason that they have the greatest incentive to perform this task.
       Second, by requiring that a defendant move before the trial starts or a guilty plea
       is entered, § 3162(a)(2) both limits the effects of a dismissal without prejudice
       (by ensuring that an expensive and time-consuming trial will not be mooted by a
       late-filed motion under the Act) and prevents undue defense gamesmanship.
 No. 17-3424                            United States v. Satterwhite                                  Page 8


Zedner v. United States, 547 U.S. 489, 502–03 (2006). It would seem these two purposes apply
to dismissal of an indictment under § 3162(a)(1). And both of the purposes would be undercut if
the waiver provision did not also apply to the speedy indictment provision. For instance, without
a waiver provision, “a defendant has no incentive to police the government’s compliance with
the STA’s indictment deadlines.” Hines, 694 F.3d at 119. Additionally, “without the waiver
constraint a defendant may freely game the system by rolling the dice on a trial and then seeking
a section 3162(a)(1) dismissal for failure to timely indict—if he is unhappy with the result—
putting the prosecution and the court through the time, effort and expense of a trial that may
subsequently be mooted at the defendant’s whim.” Id.; see also Spagnuolo, 469 F.3d at 44 (“The
Act created incentives both for compliance by the government and for enforcement by
defendants. It would be odd to use a different set of incentives for the two situations of speedy
indictment and speedy trial.         Under both, a defendant must move promptly, or waive his
rights.”).

        Finally, reading the waiver provision in the context of other provisions of the STA, which
generally treat indictments and trials the same way,2 also supports applying the waiver provision
to § 3162(a)(1). See Hines, 694 F.3d at 119–20; Spagnuolo, 469 F.3d at 45. For example,
§ 3161(h) involving periods of excludable delay applies to both speedy indictment and speedy
trial calculations. See 18 U.S.C. § 3161(h).

        Consequently, we join the other circuits which have interpreted the plain language of
§ 3162(a)(2) to mean that a defendant who fails to timely move for dismissal on the basis of an
untimely indictment waives his right to move for dismissal under the speedy indictment
provision of the STA. Cherry, 720 F.3d at 166.

        That the statute provides that a defendant can waive his challenge to an untimely
indictment is strong evidence that Congress did not intend for the thirty day time limit to be
jurisdictional. See Union Pac. R.R. Co., 558 U.S. at 81 (“Subject-matter jurisdiction . . . can
never be forfeited or waived.” (citation and quotation marks omitted)).               Furthermore, § 3161,
which sets the deadline, does not speak in jurisdictional terms or refer to the jurisdiction of the

        2
          Obviously with the exception that there are different deadlines for each segment of thirty days versus
seventy days.
 No. 17-3424                        United States v. Satterwhite                             Page 9


district court. See Henderson, 562 U.S. at 438. The STA’s thirty day speedy indictment rule,
then, appears to be a “claims-processing rule” because it seeks to “promote the orderly progress
of litigation by requiring that the parties take certain procedural steps at certain specified times,”
id. at 435, “does not reduce the adjudicatory domain of a tribunal,” and is waived if the
defendant waits too long to raise the challenge, Union Pac. R.R. Co., 558 U.S. at 81–82.

       Because we find no clear indication that Congress wanted the thirty day rule to be
jurisdictional, we will not give it “the jurisdiction tag.” Henderson, 562 U.S. at 441. And
Satterwhite waived his non-jurisdictional claim when he pleaded guilty to the information.
Accordingly, we AFFIRM the judgment of the district court.
