                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                   April 18, 2012
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                    Clerk of Court
                                   TENTH CIRCUIT


 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                         No. 11-8083
 v.                                           (D.C. No. 2:09-CR-00099-NDF-1)
                                                          (D. Wyo.)
 TODD SUMMERS,

          Defendant-Appellant.


                                ORDER AND JUDGMENT *


Before KELLY, TYMKOVICH, and GORSUCH, Circuit Judges.


      After Todd Summers pleaded guilty to several drug trafficking and money

laundering charges, his attorney filed a brief in this court pursuant to Anders v.

California, 386 U.S. 738 (1967), seeking to withdraw from this appeal and have it

dismissed. To invoke Anders, of course, a defendant’s lawyer must “submit a

brief to the client and the appellate court indicating any potential appealable

issues based on the record.” United States v. Calderon, 428 F.3d 928, 930 (10th


      *
        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) and 10th Cir. R.
34.1(G). The case is therefore ordered submitted without oral argument. This
order and judgment is not binding precedent except under the doctrines of law of
the case, res judicata and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Cir. 2005) (citing Anders, 386 U.S. at 744). The client may then submit his own

arguments for the court’s consideration. Calderon, 428 F.3d at 930. At that

point, this court must “conduct a full examination of the record to determine

whether [the] defendant’s claims are wholly frivolous.” Id. If and only if they

are, we may grant counsel’s motion to withdraw and dismiss the appeal. Id.

      In his Anders brief, Mr. Summers’s counsel identifies two potentially

appealable issues but concludes that both are without merit. Despite being

afforded an opportunity to do so, Mr. Summers has not submitted any materials

disputing this analysis or identifying other arguments he would like to pursue.

After our own independent review of the record, we agree with Mr. Summers’s

counsel that any appeal in this case would be fruitless.

      The first potential issue counsel identifies is this: the government should

have sought Mr. Summers’s cooperation against other defendants and then offered

him a downward departure at sentencing for his substantial assistance, all

pursuant to U.S.S.G. § 5K1.1. But the government had no legal duty to seek

cooperation, and even if Mr. Summers had cooperated, the government still would

not have been required to file a § 5K1.1 motion. As counsel recognizes, the

Sentencing Commission has, “wisely or unwisely[,] left the matter of [seeking a]

substantial assistance [downward departure] to the prosecutor, unless there’s a

formal agreement which would bind the [government].” Untied States v. Massey,

997 F.2d 823, 824 (10th Cir. 1993) (quotation omitted). And in this case, counsel

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acknowledges, the government never agreed (formally or otherwise) to file a

§ 5K1.1 motion. In fact, the plea agreement between Mr. Summers and the

government, which was entered under Fed. R. Crim. P. 11(c)(1)(C) and thus

bound the court once accepted, specified that Mr. Summers would be sentenced to

240 months imprisonment, the exact sentence he received (and which,

incidentally, was significantly below the low end of the relevant advisory

guidelines range).

      The second potential issue counsel identifies — a speedy trial argument —

fares no better. The Speedy Trial Act requires that a criminal defendant must be

brought to trial within seventy days of either his initial appearance or indictment,

whichever occurs last. See 18 U.S.C. § 3161(c)(1). But the Act also contains “a

long and detailed list of periods of delay that are excluded in computing the time

within which the trial must start.” Zedner v. United States, 547 U.S. 489, 497

(2006). Taking into account the time excluded by the district court in accordance

with the Act, fewer than seventy speedy trial days passed between the date of Mr.

Summers’s arraignment and the date he pled guilty. Mr. Summers might, of

course, seek to challenge one or more of these exclusions as improperly granted

or inadequately explained. But because he never filed a motion to dismiss his

indictment on speedy trial grounds, we cannot review any Speedy Trial Act

arguments he might make now, even for plain error. See 18 U.S.C. § 3162(a)(2);

United States v. Gomez, 67 F.3d 1515, 1519-21 (10th Cir. 1995).

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      To be sure, the speedy trial right has a constitutional as well as statutory

dimension. The Supreme Court has explained that Sixth Amendment speedy trial

claims are evaluated under a four factor balancing test. These factors are:

“whether delay before trial was uncommonly long, whether the government or the

criminal defendant is more to blame for that delay, whether, in due course, the

defendant asserted his right to a speedy trial, and whether he suffered prejudice as

the delay’s result.” Doggett v. United States, 505 U.S. 647, 651 (1992). And the

first factor itself has two aspects. “Simply to trigger a speedy trial analysis, an

accused must allege that the interval between accusation and trial has crossed the

threshold dividing ordinary from presumptively prejudicial delay.” Id. at 651-52

(quotation omitted). Only then do we consider “as one factor among several, the

extent to which the delay stretches beyond the bare minimum needed to trigger

judicial examination of the claim.” Id. at 652.

      As counsel recognizes, however, Mr. Summers’s constitutional argument

fails under this standard. We readily acknowledge that the approximately

fourteen month period between Mr. Summers’s arraignment on April 29, 2010,

and his guilty plea on July 6, 2011, may appear sufficient to meet Doggett’s first

factor under our precedent. See United States v. Batie, 433 F.3d 1287, 1290 (10th

Cir. 2006) (“Delays approaching one year generally satisfy the requirement of

presumptive prejudice.”). But, also relevant under Doggett’s first factor, the

delay here was only slightly longer than “the bare minimum needed to trigger

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judicial examination of the claim.” 505 U.S. at 652. And moving to the other

Doggett factors, things get even worse for Mr. Summers. Relevant to Doggett’s

second factor, most of the delay in this case is attributable to Mr. Summers, not

the government. On June 7, 2010, Mr. Summers’s counsel requested a

continuance to prepare for trial, and the district court pushed back the trial date

from June 22, 2010 until November 8, 2010. Then, after the trial was continued

until January 18, 2011 due to the unavailability of government witnesses, Mr.

Summers filed a motion challenging his competence to stand trial and requesting

a mental evaluation. The evaluation process delayed the proceedings until July 6,

2011, at which time the court found Mr. Summers competent. Mr. Summers

entered his guilty plea that same day. The third Doggett factor also cuts against

Mr. Summers. Although Mr. Summers opposed the government’s motion for a

continuance due to the unavailability of witnesses, the initial continuance and the

mental health evaluation were both requested by Mr. Summers’s counsel. Mr.

Summers never objected to these delays or moved to dismiss the indictment on

speedy trial grounds. Finally, there is no apparent basis for concluding that Mr.

Summers suffered undue prejudice due to the delays. Taking all the Doggett

factors together, counsel is correct that Mr. Summers cannot establish a Sixth

Amendment violation.




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The motion to withdraw is granted and this appeal is dismissed.


                               ENTERED FOR THE COURT



                               Neil M. Gorsuch
                               Circuit Judge




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