                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                         DEC 21 1999
                               TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                              Clerk

 UNITED STATES OF AMERICA,
             Plaintiff-Appellee,                        No. 99-6098
 v.                                               (D.C. No. 98-CR-117-M)
 MICHAEL SCHAFFER,                                      (W.D. Okla.)
             Defendant-Appellant.


                          ORDER AND JUDGMENT *


Before TACHA, McKAY, and MURPHY, Circuit Judges.



      After examining the briefs and the appellate record, this panel has

determined unanimously that oral argument would not materially assist the

determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).

The case is therefore ordered submitted without oral argument.

      Defendant Michael Schaffer appeals his conviction and sentence following

a conditional guilty plea to a violation of 21 U.S.C. § 844(a). He challenges his

conviction by arguing that the district court erroneously denied his motion to



      *
       This order and judgment is not binding precedent, except under the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.
dismiss the indictment, and he complains that his sentence is erroneous because

the court improperly computed his criminal history.

      On March 3, 1997, a correctional officer stopped Defendant--then an

inmate at the Federal Correctional Institution, El Reno, Oklahoma--as he was

leaving another inmate’s cell. While the officer was attempting to search

Defendant, Defendant wrestled away and threw something on the floor that was

later determined to be heroin. Defendant was placed in a special housing unit in

administrative detention from March 3, 1997, until July 13, 1998, when he

appeared in federal court. In April and May 1997, the FBI investigated the

incident, interviewing Defendant and collecting the evidence from the prison. In

July 1997, the FBI sent the evidence to the DEA to be analyzed. The FBI did not

receive the lab results confirming that the substance was heroin from the DEA

until March 6, 1998. Shortly thereafter, on March 10, 1998, the FBI sent the

results to the United States Attorney. In June 1998, an assistant U.S. Attorney

contacted the FBI about the case, and on July 7, 1998, Defendant was initially

indicted on one count of possessing contraband in a federal prison in violation of

18 U.S.C. § 1791(a)(2), (d)(1)(C).

      Defendant filed a motion to dismiss the indictment on July 24, 1998,

claiming that the preindictment delay deprived him of his rights to due process

and a speedy trial. See R., Vol. 1 at Doc. 8. The district court denied the motion


                                        -2-
for the reasons stated in the Government’s response, namely that Defendant failed

to show prejudice from any delay or governmental intent to harass or gain an

advantage from the delay. See id. at Doc. 10; Doc. 9 at 8-10. On September 18,

1998, pursuant to Fed. R. Crim. P. (11)(a)(2), Defendant entered a conditional

guilty plea to a superseding indictment charging possession of heroin in violation

of 21 U.S.C. § 844(a), reserving the right to appeal the district court’s denial of

his motion to dismiss the indictment. The court sentenced him to a term of

twenty-seven months’ imprisonment to run consecutively to the previously

undischarged term of imprisonment, to be followed by one year of supervised

release. 1



                                           I.

       Defendant first argues on appeal that the court erred in denying his motion

to dismiss the indictment for violations of his Fifth and Sixth Amendment rights.

Specifically, he claims that his rights to due process and a speedy trial were

violated by his fifteen-month detainment in administrative detention and by the

government’s delay in bringing an indictment. “Whether [Defendant’s] due


       1
        On January 15, 1998, Defendant filed a petition for writ of habeas corpus
under 28 U.S.C. § 2241 to obtain relief from his conditions of confinement. The
district court denied relief for failure to state a claim to the extent that the petition
constituted a Bivens-type claim, but it dismissed without prejudice the speedy
trial claims. See Order filed September 30, 1998, No. CIV-98-79-A (W.D. Okla.).

                                           -3-
process rights were denied by a delay in bringing an indictment is a question of

fact, which this court reviews for clear error.” United States v. Trammell, 133

F.3d 1343, 1351 (10th Cir. 1998). 2

      With respect to the allegation of a due process violation, the Supreme Court

has held that “the Due Process Clause has a limited role to play in protecting

against oppressive [pre-indictment] delay.” United States v. Lovasco, 431 U.S.

783, 789 (1977). “‘Preindictment delay is not a violation of the Due Process

Clause unless the defendant shows both that the delay caused actual prejudice and

that the government delayed purposefully in order to gain a tactical advantage.’”

Trammell, 133 F.3d at 1351 (quoting United States v. Johnson, 120 F.3d 1107,

1110 (10th Cir. 1997)). To establish a due process violation based on

preindictment delay a defendant must show definite and not speculative prejudice;

conclusory and unspecific allegations of prejudice are insufficient to constitute a

showing of actual prejudice. See United States v. Marion, 404 U.S. 307, 325-26

(1971); Trammell, 133 F.3d at 1351.

      Defendant asserts that the Government’s delay caused him prejudice and


      2
        While this court appears to have applied differing standards of review to a
district court’s grant or denial of a motion to dismiss the indictment based on
preindictment delay, compare Trammel, 133 F.3d at 1351 (citing United States v.
Engstrom, 965 F.2d 836, 838 (10th Cir. 1992)), with United States v. Comosona,
848 F.2d 1110, 1113 (10th Cir. 1988) (applying abuse of discretion standard), for
purposes of this appeal we apply the clearly erroneous standard utilized by our
more recent decision in Trammell.

                                         -4-
was “designed to harass him and gain a tactical advantage.” Appellant’s Br. at

12. He also complains about his administrative detention, alleging that the

fifteen-month segregation exacted a “great mental and physical toll” which in turn

affected his ability “to reconstruct and recall” events and witnesses related to the

March 3, 1997 incident. 3 Id. He does not, however, set forth facts explaining

how any missing “witnesses’ testimony would have been of benefit to his case,”

Trammell, 133 F.3d at 1351, and his conclusory and broad allegations fail to show

specific prejudice caused by the delay. See United States v. Jenkins, 701 F.2d

850, 855 (10th Cir. 1983), rejected on other grounds by Batson v. Kentucky, 476

U.S. 79 (1986).

      Nor does Defendant present any evidence tending to establish that the delay

in indictment “was an intentional ploy to gain a tactical advantage.” Trammell,

133 F.3d at 1351. The record indicates that the delay was primarily attributable

to the length of time it took for the DEA to analyze the seized substance. Further,

the record shows that because Defendant was serving 120 months’ imprisonment

for a 1993 conviction, for which he was not eligible for release during the delay

period, there was no known reason for expediting Defendant’s case. The

Government also stated that in March 1998 indictments were filed in six other



      3
       The length of the preindictment delay actually appears to be 16 months,
instead of the 15 months described by Defendant.

                                         -5-
cases assigned to the Assistant U.S. Attorney responsible for this case. Because

of the number of pending indictments, the Government waited about four months

before indicting Defendant. See R., Vol. 1, Doc. 9 at 4. These types of delays in

criminal prosecutions are not unusual and do not satisfy Defendant’s burden to

show some culpatory or intentional action on the part of the Government. See

Trammell, 133 F.3d at 1351 (affirming district court’s finding that three-year and

nine-month preindictment delay attributable to backlog of cases and shortages of

attorneys did not show intent to injure defendant). We hold that the court did not

clearly err in finding that Defendant failed to allege the kind of substantial

prejudice that warrants dismissal and in thus concluding that Defendant’s due

process rights were not violated.

      Defendant’s second argument is that the preindictment delay violated his

Sixth Amendment right to a speedy trial. While we have clearly stated that this

right is not triggered until an accused is formally charged or arrested, see

Johnson, 120 F.3d at 1109 (citing Marion, 404 U.S. at 320), Defendant suggests

that the right attached when he was held in administrative detention. The circuit

courts unanimously agree that administrative or disciplinary segregation in prison

does not constitute an arrest under Sixth Amendment jurisprudence. See United

States v. Bambulas, 571 F.2d 525, 527 (10th Cir. 1978); accord United States v.

Mills, 810 F.2d 907, 909 (9th Cir. 1987); United States v. Mills, 704 F.2d 1553,


                                          -6-
1556-57 (11th Cir. 1983); United States v. Daniels, 698 F.2d 221, 223 (4th Cir.

1983); United States v. Duke, 527 F.2d 386, 390 (5th Cir. 1976); cf. United States

v. Gouveia, 467 U.S. 180, 190 n.6 (1984) (stating that Court expressed “no view

as to when the Sixth Amendment speedy trial right attaches” but noting Ninth and

Fifth Circuit cases holding that prisoner’s administrative segregation “does not

constitute an ‘arrest’” for purposes of speedy trial right); United States v. Joseph,

50 F.3d 401, 402 (7th Cir. 1995) (noting that, in context of calculating criminal

history and related sentences, federal prisoners are not “arrested” when “placed in

segregation pending the determination of disciplinary charges against them”);

Rivera v. Toft, 477 F.2d 534, 535 (10th Cir. 1973) (explaining in context of

double punishment question that “the discipline of inmates arises while they are

in custody pursuant to unrelated valid convictions and [administrative

segregation] is not considered an ‘arrest’”). In light of these cases, and because

we are bound by Tenth Circuit precedent, Defendant’s argument on the Sixth

Amendment violation is foreclosed.

      For these reasons we hold that the court did not clearly err in denying

Defendant’s motion to dismiss the indictment for preindictment delay.



                                          II.

     Defendant also challenges his sentence, contending that the district court


                                         -7-
erred twice in calculating his criminal history. We review the court’s factual

findings for clear error and its legal interpretation of the Sentencing Guidelines de

novo. See United States v. Henry, 164 F.3d 1304, 1310 (10th Cir.), cert. denied,

      U.S.   , 119 S. Ct. 2381 (1999). We are mindful of our obligation to give

“due deference to the district court’s application of the guidelines to the facts.”

Id.

         Defendant complains that the court improperly counted two prior

convictions separately in its criminal history calculation because those convictions

were related under § 4A1.2 of the United States Sentencing Guidelines. Based on

the presentence report, the district court found that these two prior sentences were

“not related because they were in fact separated by an intervening arrest.” R., Vol.

2 at 28; see id., Vol. 3 at ¶ 26, 27. The court therefore assessed three points for

each conviction, adding six points to Defendant’s criminal history.

         The convictions at issue were for possession of methamphetamine.

Defendant was arrested on April 7, 1989, and again on May 31, 1989. For both

offenses, he was sentenced on March 30, 1990, to twelve years’ imprisonment with

the sentences to run concurrently.

         Commentary to § 4A1.2 of the Sentencing Guidelines provides that “[p]rior

sentences are not considered related if they were for offenses that were separated

by an intervening arrest.” U.S.S.G. § 4A1.2 comment. (n.3). An example of


                                          -8-
unrelated sentences would be when “the defendant is arrested for the first offense

prior to committing the second offense.” Id. The commentary then states that

“[o]therwise, prior sentences are considered related if they resulted from offenses

that (1) occurred on the same occasion, (2) were part of a single common scheme

or plan, or (3) were consolidated for trial or sentencing.” Id. (emphasis added).

Defendant claims that because the offenses were consolidated for sentencing, the

court should have treated the two convictions as related and assessed only three

points instead of six points. He also argues that the offenses were related because

their similarity indicates that they were part of a single common scheme or plan.

      The evidence at sentencing demonstrated that the two offenses were

separated by an intervening arrest. Defendant was arrested first on April 7, 1989,

before committing the second offense on May 31, 1989. Although in both

instances Defendant was stopped for a traffic violation, he was in two different

cars, two separate arrest reports were written by the police department, and the

arrests occurred approximately two months apart. See R., Vol. 2 at 22-23. The

Government is correct in arguing that because an intervening arrest separated these

two prior offenses we need not examine the considerations contained in the

“otherwise” portion of the commentary; we are bound by the “intervening arrest”

language. Cf. United States v. McCloud, 127 F.3d 1284, 1292 (10th Cir. 1997)

(applying intervening arrest language of § 4A1.2 comment. (n.3) to uphold district


                                         -9-
court’s finding that prior sentences were not related offenses for criminal history

purposes). From this evidence, we cannot say that the court erred in finding that

the two sentences were unrelated for purposes of assessing criminal history, nor

did it err in applying the commentary of § 4A1.2.

      Defendant also asserts that the court erred in giving three criminal history

points for a 1981 conviction for delivery of marijuana which emanated from a

multiplicious indictment. He attempts to collaterally attack this prior conviction

because he believes that the count to which he pleaded guilty was unconstitutional

because the indictment charged two deliveries of marijuana to the same man on the

same date. See Appellant’s Br. at 21; R., Vol. 2 at 6.

      Commentary note 6 to § 4A1.2 states that “[w]ith respect to the current

sentencing proceeding, this guideline and commentary do not confer upon the

defendant any right to attack collaterally a prior conviction or sentence beyond any

such rights otherwise recognized in law.” U.S.S.G. § 4A1.2 comment. (n.6). In

United States v. Simpson, 94 F.3d 1373, 1381-82 (10th Cir. 1996), we decided that

the district court correctly determined that the defendant was precluded from

collaterally attacking his prior conviction for criminal history purposes under the

Sentencing Guidelines because he did not allege a complete denial of counsel.

Because Defendant here has not collaterally attacked his 1981 conviction “‘based

on the complete denial of counsel,’” id. at 1381 (citing United States v. Garcia, 42


                                         -10-
F.3d 573, 581 (10th Cir. 1994)); see U.S.S.G. § 4A1.2, comment. (n.6), he is

precluded from collaterally attacking the prior conviction for sentencing purposes.

We hold that the district court did not err in assessing three criminal history points

for Defendant’s 1981 conviction. The court correctly determined Defendant’s

sentence.



                                          III.

      For the foregoing reasons, we affirm Defendant’s sentence and conviction.

      AFFIRMED.

                                                 Entered for the Court



                                                 Monroe G. McKay
                                                 Circuit Judge




                                         -11-
