                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                  ___________

                                    No. 06-2360
                                    ___________

United States of America,                *
                                         *
             Appellee,                   *
                                         * Appeal from the United States
      v.                                 * District Court for the Northern
                                         * District of Iowa
Jay Todd Hessman,                        *
                                         *
             Appellant.                  *
                                    ___________

                              Submitted: February 14, 2007
                                 Filed: July 20, 2007
                                  ___________

Before RILEY, MELLOY and SHEPHERD, Circuit Judges.
                           ___________

SHEPHERD, Circuit Judge.

       Jay Todd Hessman was convicted at a jury trial of conspiracy to manufacture
and distribute five grams or more of methamphetamine after having been previously
convicted of a felony drug offense. See 21 U.S.C. §§ 841(a)(1), (b)(1)(B) and 846.
He was sentenced to 360 months of imprisonment. On appeal, Hessman asserts that
the district court1 erred in: denying his motion to dismiss based upon the Speedy Trial
Act, 18 U.S.C. § 3161; its handling of government hearsay testimony; admitting
evidence of prior convictions; refusing a jury instruction offered by Hessman; failing

      1
       The Honorable Linda R. Reade, Chief Judge, United States District Court for
the Northern District of Iowa.
to grant a downward departure at sentencing; and applying an enhancement for prior
drug convictions. We affirm.

                                          I.

       The indictment in this case was filed on October 24, 2002, Hessman was
arraigned on November 15, 2002, and trial was scheduled for January 6, 2003. After
several motions to continue were granted, trial was scheduled for March 24, 2003,
however on March 3, 2003, Hessman filed a motion to suppress evidence seized from
his residence pursuant to a search warrant, and the trial was again continued. The
district court granted the motion to suppress, and on May 9, 2003, the district court
granted the motion of the United States to continue the trial to allow it to pursue an
interlocutory appeal. On June 1, 2004, this court reversed the district court and found
that the evidence was not subject to suppression. See United States v. Hessman, 369
F.3d 1016 (8th Cir. 2004). The certified judgment from this court was received and
docketed by the district court on August 16, 2004. On September 8, 2004, Hessman
moved to continue the trial to allow him to petition the Supreme Court of the United
States for writ of certiorari with respect to this court’s decision on the suppression
issue. The district court granted the motion for continuance and excluded the period
of September 8, 2004, to the date of trial for Speedy Trial purposes. The order also
instructed the parties to “notify the court when a ruling was issued on Hessman’s
petition for certiorari.”

       On January 10, 2005, the Supreme Court denied the petition for writ of
certiorari and so notified the clerk of this court. Hessman v. United States, 543 U.S.
1072 (2005); see Sup. Ct. R. 16(3) (“Whenever the Court denies a petition for a writ
of certiorari, the Clerk will prepare, sign, and enter an order to that effect and will
notify forthwith counsel of record and the court whose judgment was sought to be
reviewed.”). On January 20, 2005, the clerk of this court mailed to the district court
a memorandum and a copy of the Supreme Court order. However, the district court

                                          -2-
never received this communication nor did counsel for the United States or Hessman
advise the district court of the Supreme Court’s action.

       On March 11, 2005, the counsel for Hessman filed a motion in the district court
seeking leave to withdraw. The filing of this motion apparently prompted the district
court to investigate the status of Hessman’s certiorari petition, and the court
discovered that the petition had been denied two months earlier. On March 14, 2005,
the district court entered an order granting the motion of Hessman’s attorney for leave
to withdraw, setting trial to begin on May 16, 2005, and finding that the time from
September 8, 2004, until May 16, 2005 was excluded for Speedy Trial purposes. The
trial was subsequently continued and began on November 10, 2005. It is undisputed
that the time period from March 14, 2005, to the date of trial, is excluded for Speedy
Trial purposes.

       On May 13, 2005, Hessman filed a motion alleging that the Speedy Trial Act
had been violated and that the excludable time period related to his Supreme Court
petition ended on January 11, 2005. By order entered on June 16, 2005, the district
court denied the motion to dismiss finding that time period from January 11, 2005, to
March 11, 2005, the date the court learned of the action of the Supreme Court, is
excludable as “delay resulting from any interlocutory appeal.” See 18 U.S.C. §
3161(h)(1)(E). The district court further found that the parties had a court-ordered
duty to advise the district court of any action by the Supreme Court and that both
parties had failed to do so. On November 7, 2005, Hessman proceeded to trial and
was convicted on November 10, 2005.

                                          II.

      With respect to the appeal of Speedy Trial issues, we review the district court’s
findings of fact for clear error and its legal conclusions de novo. United States v.
Titlbach, 339 F.3d 692, 698 (8th Cir. 2003) (quotation marks and citations omitted).

                                          -3-
 Under the Speedy Trial Act, a defendant’s trial must commence within 70 days of the
latter of the filing of the indictment or the defendant’s arraignment. 18 U.S.C. §
3161(c)(1); United States v. McKay, 431 F.3d 1085, 1091 (8th Cir. 2005), cert.
denied, 126 S.Ct. 2345 and 127 S.Ct. 46 (2006). Delays occasioned by continuances
granted on motion of the defendant are excluded from the 70 day period. 18 U.S.C.
§ 3161(h)(8). Where the rights of a defendant under the Speedy Trial Act are violated,
the indictment must be dismissed. 18 U.S.C. § 3162(a)(2). However, “the burden is
on the defendant to show his right to a speedy trial has been violated.” United States
v. Cordova, 157 F.3d. 587, 599 (8th Cir. 1998).

       In this case, 24 days of the 70 day Speedy Trial period elapsed from the date of
Hessman’s arraignment to December 9, 2002, the date of the filing of Hessman’s first
motion to continue trial. Another 23 days elapsed from August 16, 2004, the date the
district court received the certified judgment from this court with respect to the
interlocutory appeal until September 8, 2004, the date on which Hessman filed a
motion for continuance in order to allow him to seek certiorari on the suppression
issue. Therefore, a total of 47 days elapsed, with 23 days remaining of the 70 day
Speedy Trial time limit. The parties agree that Speedy Trial tolling resumed on
September 8, 2004.

      Hessman asserts that Speedy Trial Act tolling ended on January 10, 2005 when
the Supreme Court denied certiorari. If so, the Speedy Trial time period expired on
February 2, 2005. The United States argues that tolling continued until March 11,
2005, thus, no Speedy Trial Act violation occurred.

       Although the district court found excludable the time period which began on
September 8, 2004, as delay occasioned by an interlocutory appeal, see 18 U.S.C. §
3161(h)(1)(E), and the parties have characterized the delay in this same fashion, the
time period in question is more accurately described as “[a]ny period of delay
resulting from a continuance granted by any judge . . . at the request of the defendant

                                          -4-
or his counsel.” 18 U.S.C. § 3161(h)(8)(A); United States v. Leone, 823 F.2d 246,
248 n. 2 (8th Cir. 1987) (Speedy Trial Act excludes periods of delay resulting from
a continuance granted at the request of the defendant).2

       On August 4, 2004, we denied Hessman’s petition for rehearing with respect
to our judgment reversing the district court’s grant of Hessman’s motion to suppress.
While Hessman could have moved for a stay of the mandate pending his filing of a
petition for writ of certiorari in the Supreme Court, he elected not to do so. See Fed.
R. App. P. 41(d)(2) (a party may move to stay the mandate pending the filing of
petition for certiorari in the Supreme Court; absent good cause, the stay may not
exceed 90 days unless the party who obtained the stay files a petition for the writ and
so notifies the clerk of the court of appeals; the mandate must issue immediately when
a copy of a Supreme Court order denying the petition for writ of certiorari is filed);
Sup. Ct. R. 13 (a petition for writ of certiorari seeking review of a judgment of a
United States court of appeals is timely when filed within 90 days from the date of
denial of rehearing). Thus, upon the receipt of our certified judgment on August 16,
2004, the district court was again vested with jurisdiction and could proceed. United
States v. Arrelano-Garcia, 471 F.3d 897, 900 (8th Cir. 2006) (the district court is
without jurisdiction to act until the mandate is received from the court of appeals); see
also United States v. Scalf, 760 F.2d 1057, 1059 (10th Cir. 1985) (an application to
seek certiorari has no effect on the finality of an appellate decision unless the mandate
of the court is stayed or withdrawn).

      Having failed to request a stay of the mandate, Hessman filed for an open-ended
continuance from the district court so his prosecution would be stayed while he sought


      2
        That the delay in question is more accurately characterized as occasioned by
a continuance granted at the request of the defendant is exemplified by the fact that
although Hessman obtained the continuance on September 9, 2004, he did not file his
petition for writ of certiorari in the Supreme Court until November 19, 2004, over two
months later. Hessman has not explained the reason for this delay.
                                           -5-
certiorari. This motion was granted and both parties were ordered to notify the district
court when a ruling was made on the petition. There is no rule requiring the Clerk of
the Supreme Court to officially notify the district court of the action of the Supreme
Court with respect to a petition for certiorari to review a decision of the court of
appeals. However, Supreme Court Rule 16(3) does require the Supreme Court Clerk
to notify counsel “forthwith” of the Supreme Court’s grant or denial of certiorari,
therefore the district court was justified in ordering Hessman and the United States to
notify the court when a ruling was issued on the petition.3 This order was entirely
appropriate under the circumstances and was not objected to by Hessman. While “[a]
defendant has no duty to bring himself to trial,” Barker v. Wingo, 407 U.S. 514, 527
(1972), we find that the requirements of the order of continuance which was granted
at Hessman’s request were appropriate. See United States v. Twitty, 107 F.3d 1482,
1489 (11th Cir. 1997) (in speedy trial context, finding significant that defendant did
not object to terms of order of continuance).

       The record does not explain why the district court did not receive the courtesy
notice from the clerk of our court advising of the Supreme Court’s action. Whatever
the explanation, that the communication was not received is of no import in view of
the fact that neither the Supreme Court nor this court was required to advise the
district court of the disposition of the petition for writ of certiorari. Since neither the
United States nor Hessman notified the district court of the disposition of the petition
as ordered by the district court, we agree that the excludable delay occasioned by the
continuance granted at Hessman’s request did not end until March 11, 2005, when the
district court learned of the denial of the petition “by mere happenstance.” Since
another excludable period began on March 14, 2005, and continued until trial, no
Speedy Trial Act violation occurred.


       3
        This court routinely mails copies of letters from the Supreme Court advising
of the denial of a petition for a writ of certiorari to the district court solely as a matter
of courtesy. Such was the case with the January 20, 2005 memorandum from the
clerk of this court to the clerk of the United States District Court for the Northern
District of Iowa.
                                            -6-
                                           III.

       Hessman also asserts trial error. We review evidentiary rulings for an abuse of
discretion. United States v. Durham, 470 F.3d 727, 731 (8th Cir. 2006). At trial, the
United States presented the testimony of two witnesses, Jamie Carlson and Travis
Kicklighter, relating out of court statements by others, to which Hessman objected as
inadmissible hearsay. Specifically, Carlson testified that Kicklighter told him that he
cooked methamphetamine with Hessman and that Kicklighter and Hessman used
methamphetamine together, and Kicklighter testified that Hessman told him that
Hessman had stabbed himself in the leg in a Fort Dodge, Iowa, hotel room. In
countering Hessman’s hearsay objections, the United States argued that these out-of-
court statements were not hearsay but were statements against Hessman made by co-
conspirators “during the course and in the furtherance of the conspiracy.” See Fed.
R. Evid. 801(d)(2)(E).

       The district court conditionally allowed the statements, following the procedure
outlined in United States v. Bell, 573 F.2d 1040, 1044 (8th Cir. 1978) (the district
court may conditionally allow testimony as to the statement of an alleged co-
conspirator subject to later proof, by a preponderance of independent evidence, that
the declarant was a co-conspirator). After the testimony was conditionally presented,
the district court found both statements to be inadmissible as not in furtherance of the
conspiracy. The district court overruled Hessman’s motion for mistrial and, continuing
to follow the Bell procedure, instructed the jury to disregard the testimony in
question. See id. (where the court determines that the government has failed to carry
its burden of proving by a preponderance of the evidence that the statement was made
by a coconspirator in furtherance of the conspiracy, the court will give a cautionary
instruction to the jury to disregard the statement where such an instruction will suffice
to cure any prejudice).




                                           -7-
       On appeal, Hessman does not argue that the procedure approved in Bell was not
followed by the district court nor does he identify any other alleged error in the district
court’s handling of this testimony. Instead, he asks that the en banc court overrule
Bell. However, as Hessman implicitly concedes, this panel remains bound by Bell.
 See United States v. Lippman, 369 F.3d 1039, 1044 (8th Cir. 2004) (a panel of the
circuit court may not overrule circuit precedent); United States v. Wilson, 315 F.3d
972, 973-74 (8th Cir. 2003) (only the court en banc can overrule circuit precedent).
To the extent Hessman asks that this case be heard en banc and that the en banc court
overrule Bell, we find that Hessman has failed to request hearing en banc in the
manner and in the time required by the Federal Rules of Appellate Procedure and the
rules of this court. See Fed. R. App. P. 35(b), (c) (a party may petition for a hearing
en banc no later than the date when the appellee’s brief is due); 8th Cir. R. 35A (a
party seeking an en banc proceeding must file 21 copies of a petition for hearing en
banc).

       Hessman also asserts that the district court committed error in admitting
evidence of three prior drug-related convictions. Prior to trial, via motion in limine,
Hessman asked that the United States be prohibited from referring to, or offering into
evidence, any prior conviction of the defendant. At trial, over Hessman’s objection,
the district court admitted evidence as to three prior state court drug convictions.
Specifically, the district court ruled that evidence as to Hessman’s convictions on
March 30, 2000, for possession of methamphetamine, and on March 24, 1997, for
possession of marijuana with the intent to deliver and manufacturing a controlled
substance, were admissible pursuant to Federal Rule of Evidence 404(b).

      Rule 404(b) provides that evidence of a prior bad act such as a
      conviction may not be offered solely to prove the defendant’s criminal
      propensity but is admissible if it is relevant to a material issue, such as
      intent, and if it is established by a preponderance of the evidence, more
      probative than prejudicial, and similar in kind and close in time to the
      charged offense. The requirement to balance probative value and
      prejudice is found in Rule 403 . . . [W]e construe Rule 404(b) as a rule

                                            -8-
      of inclusion and have frequently upheld the admission of prior drug
      convictions in cases where the defendant denied committing the charged
      drug offense.

United States v. Cook, 454 F.3d 938, 941 (8th Cir. 2006) (internal citations omitted).

       Evidence of Hessman’s March 2000 and two 1997 drug convictions was
relevant to the issue of Hessman’s knowledge and intent, both elements of the charged
offense. United States v Adams, 401 F.3d 886, 894 (8th Cir.) (prior convictions for
possessing and distributing drugs are relevant under Rule 404(b) to show knowledge
and intent to commit a charge of conspiracy to distribute drugs) cert. denied, 126 S.Ct.
492 (2005). The convictions are also similar in kind and close in time to the charged
conspiracy to manufacture methamphetamine from March through May 2000, for
which Hessman was tried. See id. (four-year interval found to be “well within the
bounds of admission”) (quoting United States v. Frazier, 280 F.3d 835, 847 (8th Cir.
2002)). Further, the district court instructed the jury that the evidence of Hessman’s
prior convictions should be considered only with respect to the issues of knowledge
and intent, thus minimizing the danger of unfair prejudice. United States v.
Edelmann, 458 F.3d 791, 810 (8th Cir. 2006) (limiting instruction found to cure
whatever unfair prejudice defendant may have suffered by admission of Rule 404(b)
evidence); United States v. Lothridge, 332 F.3d 502, 504 (8th Cir. 2003) (limiting
instruction that evidence of prior convictions could only be used to decide whether
defendant had requisite knowledge and intent diminished danger of unfair prejudice
arising from admission of such evidence).

       Hessman also asserts that the district court erred in refusing to give his
proposed instruction on reasonable doubt. Hessman’s proposed instruction, in
addition to containing the language contained in the Eighth Circuit’s Model Criminal
Jury Instruction § 3.11 (2000), included the following language taken from Iowa
criminal jury instructions:

      But, if, after a full and fair consideration of all the evidence or lack of
      evidence produced by the State you are not firmly convinced of the

                                          -9-
      defendant’s guilt, then you have a reasonable doubt and you should find
      the defendant not guilty.

Iowa Crim. Jury Instructions, Instruction 110.10 (Iowa Bar Assoc. 2004).

       The court refused to give Hessman’s requested instruction and instead gave the
model instruction. Because the instruction given by the district court has been
specifically upheld by this court, we summarily reject Hessman’s argument. United
States v. Mallen, 843 F.2d 1096, 1101-02 (8th Cir. 1988); United States v. Risken,
788 F.2d 1361, 1371 (8th Cir. 1986) (instruction consistent with Eighth Circuit Model
Criminal Jury Instruction § 3.11 upheld).

                                          IV.

      Hessman also asserts sentencing error. “The correct application of the
guidelines is a question of law subject to de novo review, while a factual
determination of the sentencing court is reviewed under a clearly erroneous standard.”
United States v. Tirado, 313 F.3d 437, 440 (8th Cir. 2002) (citation omitted).

       Hessman argues that the district court erred in declining to afford him
downward departures based upon his exceptional family circumstances, acceptance
of responsibility, and his rehabilitation since the date of the offense. “The
discretionary denial of a motion for downward departure is unreviewable unless the
[district] court failed to recognize its authority to depart.” United States v. Vasquez,
433 F.3d 666, 670 (8th Cir. 2006) cert. denied, ____ S.Ct.____, 2007 WL 1854154
(June 29, 2007) (quoting United States v. Andreano, 417 F.3d 967, 970 (8th Cir.
2005) cert. denied, 126 S.Ct. 1118 (2006),. Hessman does not allege that the district
court did not recognize its authority to depart, and our review of the record reveals
that the court indeed recognized that it possessed such authority but declined to
exercise it. Accordingly, the district court’s refusal to depart downward is
unreviewable.




                                         -10-
      Hessman also asserts that the district court erred in sentencing him based upon
a drug quantity determined by the court by applying a preponderance of the evidence
standard, rather than following the jury’s finding as to drug quantity, which was based
upon a reasonable doubt determination.

       As part of its verdict, the jury responded to a written question posed by the
court by finding that 5 grams or more but less than 50 grams of actual (pure)
methamphetamine was involved in the conspiracy. At sentencing, the district court
determined that the United States had proven by a preponderance of the evidence that
the defendant was accountable for 9.8 grams of actual methamphetamine and 480.69
grams of methamphetamine mixture as reflected in the presentence report. This
yielded a base offense level of 32. United States Sentencing Commission, Guidelines
Manual, § 2D1.1(a)(3)(c)(4) (Nov. 1998).

       In sentencing Hessman, the district court properly acknowledged that the
government had the burden of proving drug quantity by a preponderance of the
evidence. United States v. Marshall, 411 F.3d 891, 894 (8th Cir. 2005) (“The
government bears the burden of proving drug quantity by a preponderance of the
evidence.”); United States v. Mickelson, 378 F.3d 810, 821 (8th Cir. 2004)
(sentencing court is required to find drug quantity by a preponderance of the
evidence). Further, “[t]he district court can impose a sentence based on a higher drug
quantity determination than the jury’s finding so long as the sentence does not exceed
the statutory maximum of the convicted offense.” United States v. Johnston, 353 F.3d
617, 625 (8th Cir. 2003) (per curiam). Based upon the jury’s finding that 5 to 50
grams of methamphetamine were involved in the conspiracy, coupled with Hessman’s
prior drug conviction, the statutory sentencing range was 10 years to life
imprisonment. Because the 360 month sentence, imposed by the district court, was
within this statutory sentencing range, no error occurred. Id.; see also United States
v. Titlbach, 300 F.3d 919, 922 (8th Cir. 2002) (sentence of 88 months, less than the
statutory maximum for the crime, did not violate defendant’s constitutional rights.)




                                         -11-
       Hessman further contends that the district court erred by finding that he
qualified as a career offender by virtue of the two 1997 drug convictions. Hessman
argues that these convictions should be considered related and should not count
separately under the provisions of USSG § 4A1.2(a)(2), which states that prior
sentences imposed in unrelated cases are to be counted separately, but prior sentences
imposed in related cases are to be treated as one sentence.

      Prior sentences are not considered related if they were for offenses that
      were separated by an intervening arrest (i.e., the defendant is arrested for
      the first offense prior to committing the second offense). Otherwise,
      prior sentences are considered related if they resulted from offenses that
      (A) occurred on the same occasion, (B) were part of a single common
      scheme or plan, or (C) were consolidated for trial or sentencing.

USSG § 4A1.2, comment. (n. 3).

      “In assessing whether the offenses were part of a single common scheme or
plan, we consider (1) the time period, (2) the participants, (3) the victims, (4) the
motive, (5) the modus operandi, (6) the location, (7) the offenses, (8) whether a
common investigation uncovered the offenses and (9) whether the defendant jointly
planned the offenses.” United States v. Lynch, 477 F.3d 993, 996 (8th Cir. 2007).

      Evidence presented at trial revealed that Hessman was charged with possession
of marijuana with intent to deliver in Dickinson County, Iowa, on April 17, 1996, after
Hessman was stopped while driving a pickup truck, which contained approximately
six ounces of pre-packaged marijuana. On May 5, 1996, Hessman was charged in
Emmet County, Iowa, with manufacturing a controlled substance, “black tarry”
marijuana, in a residence. Although Hessman disputed the circumstances of the May
5, 1996 charge, the district court, as was its right, disbelieved his testimony. See
United States v. Mugan, 441 F.3d 622, 632 (8th Cir.) (district court disbelieved
witness’s testimony, and this credibility determination is entitled to deference), cert.
denied, 127 S.Ct. 191 (2006). These charges were prosecuted as separate cases. On


                                         -12-
 March 24, 1997, Hessman pled guilty to and was convicted of each charge. He was
sentenced to separate but concurrent sentences.

       The district court’s finding that the two convictions are unrelated as defined by
USSG § 4A1.2 is amply supported by the evidence. The offenses occurred on
different dates, and Hessman was arrested for the first offense prior to committing the
second. Further, the offenses occurred at different locations and in different counties.
The first offense involved the possession of packaged marijuana, while the second
involved “cooking” marijuana to create a derivative. The second offense involved
participants that were not involved in the first. The two offenses were discovered
through separate investigations by different law enforcement organizations. Finally,
while the two offenses resulted in convictions which occurred on the same date, the
cases were not consolidated and retained separate case numbers.

                                          V.

      For the foregoing reasons, we affirm the conviction and sentence.
                      ______________________________




                                         -13-
