                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 11-5043


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

JENERETTE CHARLES DIXON,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.    Benson Everett Legg, Senior District
Judge. (1:10-cr-00552-BEL-1)


Argued:   September 20, 2013             Decided:   October 18, 2013


Before NIEMEYER and AGEE, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


ARGUED:   Gerald Chester Ruter, THE LAW OFFICES OF GERALD C.
RUTER, Baltimore, Maryland, for Appellant.   James G. Warwick,
OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for
Appellee. ON BRIEF: Rod J. Rosenstein, United States Attorney,
Benjamin Walter, Legal Assistant, OFFICE OF THE UNITED STATES
ATTORNEY, Baltimore, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

     Jenerette       Charles       Dixon     was   convicted        by   a     jury     of

conspiracy to commit bank robbery, 18 U.S.C. §§ 371 and 2113;

bank robbery, id. § 2113; and brandishing a firearm during and

in relation to a crime of violence, and aiding and abetting the

same, id. §§ 2 and 924(c).             He was sentenced to a total of 240

months’    imprisonment       for    these      offenses.      On     appeal,     Dixon

claims that his speedy trial rights under the Speedy Trial Act

(STA),    id.     § 3161     et    seq.,    and    the    Sixth     Amendment         were

violated.       We affirm.



                                            I

     On March 11, 2010, Dixon, with the help of two accomplices,

Kelly Woods and Nebuzarada Nisseau-Bey, robbed the Harbor Bank

at 1000 Lancaster Street in Baltimore, Maryland at gunpoint.                            On

July 16, 2010, United States Magistrate Judge Grimm issued a

warrant for Dixon’s arrest.               Five days later, on July 21, 2010,

Dixon     was    arrested     on    the     warrant      and   made      his    initial

appearance before United States Magistrate Judge Bredar. 1                            That




     1
       Both Magistrate Judge Grimm and Magistrate Judge Bredar
resolved certain pretrial matters in this case.      At present,
both serve as a United States District Judge for the District of
Maryland.



                                          - 2 -
same day, counsel was appointed to Dixon, and the government

moved for an order of detention pursuant to 18 U.S.C. § 3142.

     On July 23, 2010, a detention hearing was held, and Dixon

was ordered detained.       On July 28, 2010, Dixon’s counsel sent a

letter to Magistrate Judge Grimm requesting that the preliminary

hearing set for August 4, 2010 be continued for sixty days,

through September 22, 2010, in order to allow the parties to

discuss a resolution of the case pre-indictment.                        This letter

was filed on August 2, 2010, and the motion was granted by

Magistrate Judge Bredar the same day.

     On August 23, 2010, Dixon sent a letter, properly construed

as a motion to substitute counsel, to Magistrate Judge Grimm

asking that his current counsel be removed and new counsel be

appointed.     On September 9, 2010, Magistrate Judge Grimm held a

hearing   on   Dixon’s     motion    to     substitute     counsel.         At     the

conclusion     of   the   hearing,        Magistrate     Judge    Grimm     granted

Dixon’s motion and appointed new counsel.                On the same day, the

grand   jury   returned    an     indictment      charging      Dixon    with    bank

robbery, id. § 2113, and brandishing a firearm during and in

relation to a crime of violence, and aiding and abetting the

same, id. §§ 2 and 924(c).

     On   September       22,     2010,     the    grand     jury       returned     a

superseding    indictment       charging    Dixon,     Woods,    and    Nisseau-Bey

with conspiracy to commit bank robbery, id. §§ 371 and 2113

                                     - 3 -
(Count      One);      bank     robbery,         id.    §      2113    (Count          Two);     and

brandishing       a    firearm       during      and    in    relation        to   a    crime     of

violence, and aiding and abetting the same, id. §§ 2 and 924(c)

(Count Three).             On November 5, 2010, Woods and Nisseau-Bey were

arrested      and     brought        before      United       States     Magistrate            Judge

Gauvey for their initial appearances.

       On     November       24,     2010,       Nisseau-Bey          filed    a       motion    to

suppress.       While this motion was pending, Dixon filed a variety

of motions, including several motions to suppress.                                 On February

7, 2011, Dixon sent a letter to the district court complaining

that his new counsel had not filed a motion to dismiss based on

STA    violations.            The    government         was    ordered        to    respond      to

Dixon’s STA assertions, which it did on March 1, 2011.

       With regard to the STA’s requirement that an indictment be

returned within thirty days of arrest, the government contended

that, because Dixon’s counsel sought a continuance to resolve

the case pre-indictment, the STA’s indictment clock was tolled

from     August       2,    2010     to     September         9,    2010,     the       date     the

indictment was returned.                  With regard to the STA’s requirement

that    the    defendant’s          trial    take      place       seventy    days      from     the

later of the filing of the information or indictment or the

defendant’s initial appearance before a judicial officer, the

government argued that there were excludable periods of delay

under    18    U.S.C.       § 3161        that   rendered          Dixon’s     trial      timely.

                                              - 4 -
After reviewing the government’s response, the district court,

without     setting     forth        any   reasoning,     concluded     that      “[n]o

violation of the Speedy Trial Act [had] occurred.”                    (S.J.A. 23).

       On April 21, 2011, the district court held a hearing on

Dixon’s pretrial motions, including an April 19, 2011 pro se

motion    to    dismiss   based       on   STA    violations   and    Dixon’s     Sixth

Amendment right to a speedy trial.                   These motions were denied

the following day.           With regard to Dixon’s speedy trial claims,

the    district      court     concluded,        again   without     expressing     any

reasoning, that “there [was] no speedy trial violation in this

case.”    (S.S.J.A. 36).

       On April 28, 2011, Dixon filed a motion to have DNA tested.

This motion was denied on April 29, 2011.                          On May 2, 2011,

Dixon’s jury trial commenced.               Dixon was convicted of all three

counts and sentenced to a total of 240 months’ imprisonment.

       After filing a timely notice of appeal, Dixon’s counsel

filed a brief pursuant to Anders v. California, 386 U.S. 738

(1967), finding no meritorious grounds for appeal but raising

five     challenges     to     Dixon’s      convictions.        In    response,     we

directed       the   parties    to    submit     supplemental      briefing    on   the

issue of whether Dixon’s speedy trial rights were violated and

set the case down for oral argument.                 Having heard oral argument

on September 20, 2013, the case is now ready for decision.



                                           - 5 -
                                           II

       Dixon argues that his speedy trial rights, both under the

STA and the Sixth Amendment, were violated below.                   We turn first

to Dixon’s two STA arguments and then to his Sixth Amendment

argument.

       We review the district court’s interpretation of the STA de

novo and any related factual findings for clear error.                          United

States v. Rodriguez–Amaya, 521 F.3d 437, 440 (4th Cir. 2008).

The STA requires that a defendant be indicted within thirty days

of his arrest and tried within seventy days from 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); United States v. Leftenant, 341 F.3d 338, 343

(4th Cir. 2003).          An indictment in violation of the thirty-day

time limit must be dismissed.              18 U.S.C. § 3162(a)(1).             Failure

to begin the trial within the seventy-day time limit shall, upon

motion of the defendant, result in dismissal of the charging

instrument either with or without prejudice.                 Id. § 3162(a)(2).

       The   requirement     of   dismissal,     however,      is   not    absolute.

Section 3161(h) provides for certain periods of excludable delay

that   extend    the   thirty-day       time    limit   of   § 3161(b)         and   the

seventy-day     time   limit      of   § 3161(c)(1).         Several   periods        of

excludable delay are relevant here.



                                        - 6 -
      The first is set forth in 18 U.S.C. § 3161(h)(1).                              That

section     requires    the     exclusion       of    “[a]ny      period      of   delay

resulting     from     other    proceedings          concerning     the       defendant,

including but not limited to” eight enumerated subcategories of

proceedings.         Id.      § 3161(h)(1).            “Although        §     3161(h)(1)

exclusions     often    fall     within    the       eight   specifically          listed

subcategories, various non-enumerated delays have also been held

to   be   automatically        excluded    by    virtue      of   the       non-limiting

‘other proceedings’ clause.”               United States v. Valdivia, 680

F.3d 33, 38 (1st Cir. 2012).              In our circuit, delays related to

plea negotiations constitute non-enumerated “other proceedings”

under § 3161(h)(1).        Leftenant, 341 F.3d at 344–45 (holding that

plea negotiations trigger automatic exclusion under 18 U.S.C.

§ 3161(h)(1)). 2




      2
       Some courts have held that the delay resulting from plea
negotiations is not automatically excludable under the STA. See
United States v. Mathurin, 690 F.3d 1236, 1240-41 (11th Cir.
2012) (holding that the time devoted to plea negotiations is not
automatically excludable under the STA); United States v.
Alvarez–Perez, 629 F.3d 1053, 1058 (9th Cir. 2010) (noting that,
“in  general,   time   devoted  to   plea  negotiations  is  not
automatically excluded”); and United States v. Lucky, 569 F.3d
101, 107 (2d Cir. 2009) (noting that “plea negotiations do not
fit comfortably into the ‘other proceedings’ language of section
3161(h)(1)”).     These courts do recognize that the delay
resulting from plea negotiations can toll the STA indictment
clock where an appropriate ends-of-justice finding is made.
See, e.g., Mathurin, 690 F.3d at 1241.



                                      - 7 -
       The second period of excludable delay relevant here is set

forth in 18 U.S.C. § 3161(h)(7)(A).                 That section excludes the

delay resulting from a continuance granted by a court sua sponte

or at the request of a party, but only upon findings “that the

ends       of   justice     served   by   the   granting   of   such   continuance

outweigh the best interests of the public and the defendant in a

speedy trial.”            18 U.S.C. § 3161(h)(7)(A).            The court is not

required        to   make    the   ends-of-justice    finding     contemporaneous

with the granting of the continuance; rather, the findings must

be made no later than the time the district court rules on the

defendant’s motion to dismiss under the STA.                    Zedner v. United

States, 547 U.S. 489, 507 (2006). 3

       The third period of excludable delay relevant here is set

forth in 18 U.S.C. § 3161(h)(1)(D).                 That section excludes the

“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.”                Id. § 3161(h)(1)(D).      Such

time is excluded even if a delay in holding a hearing is not

“reasonably necessary.”              Henderson v. United States, 476 U.S.

321, 330 (1986).


       3
       As noted by the Supreme Court in Zedner, “[t]he best
practice, of course, is for a district court to put its [ends-
of-justice] findings on the record at or near the time when it
grants the continuance.” 547 U.S. at 507 n.7.



                                          - 8 -
       Dixon’s first STA argument concerns the timeliness of his

indictment, which was returned on September 9, 2010.                              He posits

that his indictment was untimely under the STA’s thirty-day time

limit.

       Dixon was arrested on July 21, 2010.                       Thus, in the absence

of     excludable       periods,       the    government          had   to     return      an

indictment by August 20, 2010, thirty days from July 21, 2010.

The period between July 21, 2010, when the government moved for

pretrial       detention,      and    July    23,    2010,    when      the   motion      was

granted, is excludable.               United States v. Wright, 990 F.2d 147,

149 (4th Cir. 1993).              Thus, the STA indictment clock did not

start running until July 24, 2010.                   The STA indictment clock ran

nine    days    and    then    stopped       on   August     2,    2010,     when   Dixon’s

motion for continuance was filed.                  18 U.S.C. § 3161(h)(7)(A).

       The parties disagree on whether the STA indictment clock

restarted       on    August     3,   2010.         Dixon    asserts       that     the   STA

indictment clock restarted because there was nothing akin to an

ends-of-justice         finding       made,       either     before     or     after      the

granting of the continuance.                   See Zedner, 547 U.S. at 506-07

(noting    that       “without    on-the-record        findings”        concerning        the

ends-of-justice,         time     period      covering       continuance       cannot      be

excluded under the STA); see also United States v. Kellam, 568

F.3d 125, 137 (4th Cir. 2009) (noting that, “[i]n order for a

delay resulting from a continuance to be excludable, the court

                                           - 9 -
is to explain, ‘either orally or in writing, its reasons for

finding’     that      the     ends      of     justice       served       by     granting       the

continuance        outweigh        the     interests          of    the     public       and     the

defendant”) (quoting 18 U.S.C. § 3161(h)(7)(A)).

      In    response,        the    government           first      argues       that    the     STA

indictment clock did not restart on August 3, 2010 because the

parties     were    actively        involved        in    plea      negotiations         at     that

time.      The government posits that any delay attributable to plea

negotiations        is    excludable           as   “other         proceedings”         under     18

U.S.C. § 3161(h)(1).               In pressing this argument, the government

neither      points       to       any     record        evidence          of     actual        plea

negotiations (e.g., when they began or when the finished), nor

points     to    any     findings        by     Magistrate          Judge       Bredar    or     the

district court concerning such negotiations.

      Perhaps       sensing        the     dearth        of    evidence           on    the    plea

negotiations question, the government presses a second argument.

The   government         argues     that       Dixon     should      not     be    entitled       to

benefit from Magistrate Judge Bredar’s or the district court’s

failure     to   make     appropriate          findings.            Cf.    United       States    v.

Hopkins,     310    F.3d       145,      150    (4th     Cir.       2002)       (rejecting       the

defendant’s STA claim because “none of the delay in getting to

trial was attributable to the government”); United States v.

Keith, 42 F.3d 234, 240 (4th Cir. 1994) (holding that, if a

defendant affirmatively consents to a motion for a continuance

                                              - 10 -
and the reasons for the granting of that motion as garnered from

the record are sufficient to support a finding that the ends-of-

justice    would     be     met    by    granting    the   motion,       the     defendant

cannot take advantage of that discrete period of time covered by

the continuance in asserting a violation of the STA).

      We need not decide if the STA indictment clock restarted on

August 3, 2010.             This is so because, even assuming, without

deciding, the STA indictment clock restarted on August 3, 2010,

it stopped twenty days later on August 23, 2010, the date on

which Dixon sent his motion to substitute counsel.                         Cf. Houston

v. Lack, 487 U.S. 266, 276 (1988) (holding that a prisoner’s

notice of appeal is deemed filed on the date he delivers it to

prison authorities for mailing to the court).                           Thus, the time

period between August 23, 2010 and September 9, 2010 (the date

the motion to substitute was granted) is excludable.                             At most,

then,     only     twenty-nine          non-excludable      days       elapsed     between

Dixon’s     arrest        and     indictment,       because      Dixon’s       motion   to

substitute counsel was resolved the same day as the day the

indictment was returned, September 9, 2010.                      Of particular note,

candidly,     at     oral       argument,       counsel    for     Dixon    essentially

conceded that the STA indictment clock stopped running on August

23,   2010,      and,   therefore,        the    return    of    the    indictment      was

timely.     Accordingly, there was no STA violation based on pre-

indictment delay.

                                           - 11 -
       Dixon’s second STA argument concerns the timeliness of his

trial.      He posits that his trial was untimely under the STA’s

seventy-day time limit.

       Although the original indictment was returned on September

9,    2010,     the     grand       jury    returned       a   superseding        indictment

against Dixon and his co-defendants on September 22, 2010.                                 The

filing of the superseding indictment in this case restarted the

STA trial clock.             See United States v. King, 483 F.3d 969, 973

(9th    Cir.    2007)        (holding       that    the    filing    of     a    superseding

indictment adding a new defendant restarts the STA clock for all

defendants); United States v. Barnes, 251 F.3d 251, 257 (1st

Cir. 2001) (holding that a superseding indictment returned the

day    before     the     speedy      trial        deadline,    containing         the    same

charges     and     adding      only       one     new,    albeit    previously          known,

defendant served to restart the STA clock); United States v.

Gambino, 59 F.3d 353 (2d Cir. 1995) (holding that the STA clock

in cases involving multiple defendants begins with the running

of    the   clock      for    the    most    recently      added     defendant).           Such

restarting      was     further       delayed       because     Dixon’s     co-defendants

were not arrested until November 5, 2010.                        See United States v.

Shealey, 641 F.3d 627, 632 (4th Cir. 2011) (“‘All defendants who

are    joined     for   trial       generally       fall    within    the       speedy    trial

computation       of    the    latest       codefendant.’”)         (quoting      Henderson,

476 U.S. at 323 n.2); see also United States v. Jarrell, 147

                                            - 12 -
F.3d    315,    316    (4th      Cir.    1998)    (“[T]ime      excludable        for   one

defendant is excludable for all defendants.”); United States v.

Sarno, 24 F.3d 618, 622 (4th Cir. 1994) (noting that, if one co-

defendant      files   a    motion       to   continue    and   the    district     court

grants it, then that time is excluded as to all co-defendants

regardless of whether a motion to sever has been filed).                            Thus,

the STA trial clock began to run on November 6, 2010.

       The STA trial clock ran for seventeen days.                      The STA trial

clock stopped on November 24, 2010, when Nisseau-Bey filed a

motion    to    suppress.          Jarrell,      147     F.3d   at    316;   18    U.S.C.

§ 3161(h)(1)(D).           While the STA trial clock was stopped, Dixon

filed several motions.               The STA trial clock began to run on

April    23,   2011,    because         the   district    court      ruled   on   Dixon’s

pretrial motions on April 22, 2011.                    18 U.S.C. § 3161(h)(1)(D).

The STA trial clock ran for another five days, but then stopped

because, on April 28, 2011, Dixon filed a motion to have DNA

evidence tested.           Id.    The STA trial clock recommenced the day

after the motion was denied on April 29, 2011.                        Four days later,

on May 2, 2011, Dixon’s trial began.

       Given all these exclusions, less than thirty days counted

toward the seventy-day time limit.                     Thus, there was no post-

indictment STA violation because Dixon’s trial was timely.

       Dixon also presses a speedy trial claim under the Sixth

Amendment.      We review the district court’s legal conclusions on

                                          - 13 -
this issue de novo and its factual findings for clear error.

United States v. Woolfolk, 399 F.3d 590, 597-98 (4th Cir. 2005).

      The Sixth Amendment provides, in relevant part, that, “[i]n

all criminal prosecutions, the accused shall enjoy the right to

a   speedy    and    public     trial.”       U.S.   Const.    amend.      VI.      To

establish     a     violation    of    this     constitutional       guarantee,      a

defendant first must show that the Sixth Amendment’s protections

have been activated by an “arrest, indictment, or other official

accusation.”        Id. at 597 (citation and internal quotation marks

omitted).

      When the Sixth Amendment’s protections have been activated

by a qualifying event, we engage in the four-factor balancing

test set forth in Barker v. Wingo, 407 U.S. 514 (1972), and

consider     whether:    (1)    the   delay     before   trial      was   uncommonly

long; (2) the government or the defendant is more to blame for

that delay; (3) in due course, the defendant asserted his right

to a speedy trial; and (4) the defendant suffered prejudice from

the delay.        Shealey, 641 F.3d at 634.              The duration of the

delay, in addition to being a factor in this test, also is a

threshold requirement because the defendant must establish that

the length of the delay is at least presumptively prejudicial.

Doggett v. United States, 505 U.S. 647, 651–52 (1992).

      In   this     case,   Dixon     clearly    asserted     his    speedy      trial

rights.      However, the total time that elapsed from the initial

                                       - 14 -
appearance to the trial was a little over nine months, an amount

of time in which Dixon concedes is not excessively long.                              Cf.

id.     at    652   n.1      (noting    that    “postaccusation            delay    [is]

‘presumptively        prejudicial’       at    least    as     it    approaches       one

year”).      Moreover, most of the delay in bringing Dixon to trial

was not attributable to the government.                 Dixon sought to explore

a pre-indictment resolution of the case through a successful

motion       for    continuance,       successfully       filed       a    motion     to

substitute counsel, and filed a variety of pre-trial motions.

These    actions     substantially       delayed   the       start    of   the     trial.

More importantly, Dixon has not specified how his case was in

any way prejudiced by the delay.                 As in Hopkins, he “has not

shown, or even argued, that any evidence was damaged or lost,

that any witnesses could not be found, or that his case was

harmed in any manner by the delay.”                    310 F.3d at 150.            After

weighing      the   Barker    factors,    we   conclude       there    was   no    Sixth

Amendment violation.




                                       - 15 -
                              III

     For the reasons stated herein, the judgment of the district

court is affirmed. 4

                                                        AFFIRMED




     4
       We have considered the other issues raised by Dixon’s
counsel pursuant to Anders and find them to be without merit.
In accordance with Anders, we have reviewed the entire record in
this case and have found no meritorious issues for appeal other
than the speedy trial issues addressed herein.



                             - 16 -
