          NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                     File Name: 06a0434n.06
                       Filed: June 23, 2006

                                     No. 05-3535

                    UNITED STATES COURT OF APPEALS
                         FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                      )
                                               )   ON APPEAL FROM THE
             Plaintiff-Appellee,               )   UNITED STATES DISTRICT
                                               )   COURT FOR THE SOUTHERN
v.                                             )   DISTRICT OF OHIO
                                               )
CARL WHITE,                                    )   OPINION
                                               )
             Defendant-Appellant.              )


BEFORE: KEITH and COLE, Circuit Judges; MILLS, District Judge.*

      RICHARD MILLS, District Judge.

      Following the district court’s denial of his motion to dismiss the indictment

pursuant to the Interstate Agreement on Detainers Act (the “IADA”), 18 U.S.C. App.

§ 2, Defendant-Appellant Carl White pled guilty to the one-count indictment charging

him with illegal possession of a firearm by a convicted felon, in violation of 18 U.S.C.

§ 922(g).    The district court sentenced White to serve a term of 51 months

      *
        The Honorable Richard Mills, United States District Judge for the Central
District of Illinois, sitting by designation.

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imprisonment and three years of supervised release. The court also imposed a fine of

$5,000. White appeals the district court’s denial of the motion to dismiss the

indictment and its imposition of the fine. We AFFIRM.

                                  I. BACKGROUND

       On July 23, 2003, Carl White was charged in a complaint with being a felon-in-

possession of a firearm, in violation of 18 U.S.C. § 922(g)(1), after a Phoenix Arms,

.25 caliber Raven model semi-automatic pistol was found in his car on May 25, 2003,

following a car and foot chase by Cincinnati police officers. The officers were serving

a warrant, which was issued when White failed to appear for sentencing on a cocaine

possession charge. The Hamilton County Ohio Court of Common Pleas sentenced

White to sixteen months imprisonment on the drug conviction. White began serving

that sentence at the Chillicothe Correctional Institution (“CCI”) on July 24, 2003.

       While in custody at CCI, White was notified on or about February 22, 2004 of

the pending federal felon-in-possession charge stemming from his arrest on May 25,

2003. At some point, White began making efforts to request a speedy trial on the

federal detainer lodged against him in the complaint. On February 22, 2004, a records

officer at CCI wrote on the detainer that White could not “file a fast and speedy on

U.S. Marshal [sic] charges.” Neither the U.S. Marshal’s Service, the U.S. Attorney’s

Office, nor the district court received notice of White’s efforts to request a speedy trial


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under the IADA on the federal charge. White did write a letter dated February 23,

2004 to the Clerk of Court, wherein he asked about procedures to “defend against

these illegal, unfounded and unsupported accusations/charges.” The Government

notes that it did not receive this letter until it was attached to later filings. The letter

was not filed or made part of the court’s docket.

       On April 19, 2004, White filed a pro se motion to quash the arrest warrant.

White’s motion raised six grounds, none of which requested a trial on the federal

charge or made reference to his CCI speedy trial request. On May 5, 2004, the federal

grand jury returned an indictment charging White with illegal possession of a firearm

by a convicted felon, in violation of 18 U.S.C. § 922(g).

       On June 16, 2004, the district court entered an order denying White’s motion

to quash the arrest warrant. At this time, the court raised sua sponte the question of

the applicability of the IADA. The court ordered the Government to address whether

the IADA applied to White’s case. Both the Government and White, pro se, filed

briefs addressing this issue. The Government filed its response on June 29, 2004.

White mailed a reply brief to the court on July 14, 2004, which was filed on August

9, 2004. The Government claims it was not until July 14, 2004 that White finally

submitted to the court a copy of the trial request from CCI with his brief. This was

the first notice received by either the district court or the Government of White’s


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request to the state prison.

      On September 10, 2004, White had his initial appearance on the charge in the

indictment and was appointed counsel. On November 10, 2004, counsel for White

moved to dismiss the indictment based on the claim that the IADA’s 180-day speedy

trial clock had expired. White argued that the IADA’s 180-day clock had expired on

August 22, 2004, based upon his contention that he executed the speedy trial request

form on February 22, 2004. On December 1, 2004, a hearing was held on the motion

to dismiss. The district court orally denied White’s motion at the hearing and

subsequently issued an amended written order on December 16, 2004. The district

court concluded that White did not initiate the protections of the IADA until July 14,

2004. Accordingly, the Government had until January 14, 2005 to bring White to trial

without violating the 180-day window of the IADA.

      On December 17, 2004, pursuant to the terms of a written plea agreement,

White pled guilty to the indictment. He was sentenced on April 8, 2005 to serve 51

months in the custody of the Bureau of Prisons and three years of supervised release.

A fine of $5,000 was imposed. A timely notice of appeal was filed on April 18, 2005.

                                 II. DISCUSSION

      A. White’s motion to dismiss the Indictment

      This Court generally reviews for abuse of discretion a district court’s denial of


                                          4
a motion to dismiss an indictment. See United States v. Middleton, 246 F.3d 825, 841

(6th Cir. 2001). It does not appear that any cases from this Circuit have specifically

addressed the standard of review on a motion to dismiss based on the IADA’s speedy

clock provision. The Second Circuit has held that a district court’s legal conclusions

under the IADA are subject to de novo review. See United States v. Paredes-Batista,

140 F.3d 367, 374 (2d Cir. 1998). The First Circuit has determined that the same

standard of review applies to a district court’s decision to dismiss an indictment under

the IADA as is employed in analogous cases under the Speedy Trial Act: the district

court’s legal conclusions are reviewed de novo, its factual findings are reviewed for

clear error, and its ultimate ruling is reviewed for abuse of discretion. See United

States v. Kelley, 402 F.3d 39, 41 (1st Cir. 2005).

      Article III(a) of the IADA provides in pertinent part:

              Whenever a person has entered upon a term of imprisonment in a
      penal or correctional institution of a party State, and whenever during the
      continuance of the term of imprisonment there is pending in any other
      party State any untried indictment, information, or complaint on the basis
      of which a detainer has been lodged against the prisoner, he shall be
      brought to trial within one hundred and eighty days after he shall have
      caused to be delivered to the prosecuting officer and the appropriate
      court of the prosecuting officer’s jurisdiction written notice of the place
      of his imprisonment and his request for a final disposition to be made of
      the indictment, information, or complaint. . . . The request of the
      prisoner shall be accompanied by a certificate of the appropriate official
      having custody of the prisoner, stating the term of commitment under
      which the prisoner is being held, the time already served, the time


                                           5
       remaining to be served on the sentence, the amount of good time earned,
       the time of parole eligibility of the prisoner, and any decision of the State
       parole agency relating to the prisoner.

18 U.S.C. App. § 2, Art. III(a). If these conditions are complied with and the

defendant is not brought to trial within 180 days as provided in the IADA, Article

V(c) requires that the indictment against that defendant be dismissed. See 18 U.S.C.

App. § 2, Art. V(c).

       White contends that he triggered IADA’s protection on or before February 22,

2004, when his speedy trial demand was sent to the officials at CCI. Because the

Government did not bring him to trial within 180 days of that date (by August 22,

2004), therefore, the indictment must be dismissed. White claims that the IADA

apparently does not specifically govern a situation in which a defendant makes a

proper request in the custodial State, but the request is not made known to the

receiving State. He asserts that the apparent fault of the custodial State to follow

proper IADA procedures should not prejudice a defendant who does everything in his

control to initiate proper proceedings. White notes that this Court has held, “When

the prisoner has done everything possible to comply with the IAD, and it is the

custodial state that is responsible for the prisoner’s default, then strict compliance with

the IAD may not be required.” See Norton v. Parke, 892 F.2d 476, 481 (6th Cir.

1989).


                                            6
      White claims the district court recognized that he contacted that court through

his request for information to file a speedy trial request, and that the custodial State,

CCI, failed to comply with its obligations pursuant to the IADA. He notes, however,

that the district court cited Fex v. Michigan, 507 U.S. 43, 51 (1993), and Paredes-

Batista, 140 F.3d 367, for the proposition that the 180-day clock does not begin to run

until both the district court and the prosecutor have received the prisoner’s request for

a speedy trial. White asserts this Court and other courts have determined that

substantial compliance may be sufficient in some circumstances. See Norton, 892

F.2d at 481; see also United States v. Dent, 149 F.3d 180, 186-87 (3d. Cir. 1998)

(observing that although strict compliance with Article III’s requirements has typically

been required, it has recognized that such compliance may not be required if the

prisoner has complied to the extent possible, and the state is responsible for the

default.). White further notes that in Gibson v. Klevenhagen, 777 F.2d 1056, 1058

(5th Cir. 1985), the Fifth Circuit concluded that by writing a letter to the prosecutor

in which he asked for a final disposition of his case and seeking relief pursuant to the

IADA from the department of corrections, the defendant had substantially complied

with the IADA.

      White contends that by signing a request for a speedy trial at CCI and by

writing the clerk’s office to inquire about initiating proper speedy trial procedures, he


                                           7
substantially complied with the IADA. Accordingly, White requests that this Court

reverse the district court and that the indictment be dismissed on remand.

      The Government notes that the United States Supreme Court has made clear

that the IADA’s 180-day speedy trial clock does not begin to run until both the

prosecuting attorney’s office and the court in the charging jurisdiction actually receive

the speedy trial request from the institution where the individual is being held. See

Fex, 507 U.S. at 52. This is consistent with the text of the statute. See id. The

Government states that it is undisputed that neither its office nor the district court

received White’s CCI speedy trial request made on February 22, 2004 until July 14,

2004, when the request was attached to a pleading. The Government claims that the

state institution’s failure to forward White’s request does not alter the IADA’s

requirements or the application of Fex’s holding. It further notes that the Second

Circuit has held that even if the fault rested with the Marshal’s Service, the 180-day

clock does not begin to run until both the district court and the United States

Attorney’s Office receive the prisoner’s speedy trial request. See Paredes-Batista,

140 F.3d at 374 (“Even if we were to accept arguendo that delivery of the request to

the U.S. Marshals’ office . . . was sufficient under a theory of agency to constitute

delivery to the ‘prosecuting officer’ . . . as Batista urges, that request did not become

effective and start the 180-day clock until it was also delivered to the district court.”).


                                            8
      The Government notes that White makes policy arguments pursuant to United

States v. Mauro, 436 U.S. 340, 350 (1978), based on the Supreme Court’s language

that efforts should be made “to accomplish the disposition of detainers as promptly

as possible,” and “principles of interstate comity in the settlement of detainers” should

be observed.    The Government contends, however, that the Supreme Court’s

subsequent decision in Fex, 507 U.S. at 52, is the controlling authority that the 180-

day IADA clock starts when the speedy trial request is delivered to the prosecutor and

the district court. Moreover, the Government alleges that this result is supported by

the plain language of the IADA. See 18 U.S.C. App. § 2, Art. III(a). The Government

asserts that the dismissal of an indictment when the prosecutor had no notice of a

speedy trial request and therefore could not comply would be inconsistent with

IADA’s spirit of cooperation between prosecuting authorities.

      The Government further claims that the district court properly concluded that

after CCI failed to deliver White’s February 22, 2004 speedy trial request, none of

White’s subsequent actions can fairly be characterized as notice of a speedy trial

request. His letter mailed to the Clerk of the District Court requesting information

about the pending federal detainer was not received by the Government, nor placed

in the court’s docket. That letter did not include his CCI speedy trial request nor did

it make a request for a speedy trial.


                                           9
      The Government alleges that White’s reliance on Gibson, 777 F.2d at 1058, is

misplaced because that Fifth Circuit decision has been trumped by Fex. Additionally,

Gibson is factually distinguishable because White did not make a speedy trial request

of the prosecutor in this case.

      The Government contends that because July 14, 2004 is the date on which

White delivered his speedy trial request to the district court and the Government, the

district court correctly held that the IADA’s 180-day clock began to run on that date.

Consequently, the time to bring White to trial on the indictment had not expired at the

time he moved to dismiss the indictment on November 10, 2004. White entered his

guilty plea on December 17, 2004, almost one month before the Government claims

that the 180-day clock would have expired on January 14, 2005. The Government

contends, therefore, that the district court did not err in denying White’s motion to

dismiss.

      This case is controlled by the Supreme Court’s decision in Fex. We conclude

there was no violation of the 180-day time period in the IADA. White’s speedy trial

request at CCI did not constitute notice “to be delivered to the prosecuting officer and

the appropriate court.” 18 U.S.C. App. § 2, Art. III(a). Pursuant to the plain language

of the IADA, therefore, the Government did not violate the 180-day speedy trial clock

of the IADA. White’s speedy trial request was not made to the prosecutor and the


                                          10
appropriate court, as is required by the IADA. Id. Moreover, the Supreme Court has

stated that the applicable language of IADA is to be literally read. See Fex, 507 U.S.

at 52 (“We hold that the 180-day time period in Article III(a) of the IAD does not

commence until the prisoner’s request for final disposition of the charges against him

has actually been delivered to the court and prosecuting officer of the jurisdiction that

lodged the detainer against him.”).

        Even assuming that substantial compliance with the IADA may sometimes be

permissible, we conclude that this is not such a case. It would be unfair to penalize

the Government in this case when neither the U.S. Attorney’s Office nor the district

court received notice of White’s speedy trial request of CCI officials.

        Because the request was actually delivered to the prosecutor and the court on

July 14, 2004 and White pled guilty less than 180 days later, we find that there was

no violation pursuant to the IADA. Accordingly, the district court committed no error

in denying White’s motion to dismiss the indictment.

        B. Imposition of $5,000 fine

        Citing United States v. Booker, 543 U.S. 220, 264 (2005), the parties contend

that we review for unreasonableness the district court’s decision to impose a $5,000

fine.

        White alleges that the district court’s imposition of a $5,000 fine was


                                           11
unreasonable. He has a ninth grade education, no job skills and a limited employment

history at temporary job services. White claims that it is unreasonable for the district

court to expect him to pay a $5,000 fine over 51 months at an inmate’s salary, or over

a period of three years of supervised release as an ex-convict. Because of his

indigency, White states he should be fined a reasonable amount that would not hinder

his future rehabilitative efforts. He suggests a fine of $1,000, which is the amount that

the probation officer recommended.

      The Government notes that the $5,000 fine is at the bottom of the fine range of

$5,000 to $50,000 under the Sentencing Guidelines. The Government claims that the

district court’s finding that White could pay such an amount over the course of his 51

months of imprisonment and three years of supervised release is not unreasonable.

      This Court has previously questioned whether Booker applies to fines. See

United States v. Bucheit, 134 Fed. Appx. 842, 862 n.11 (6th Cir. 2005). The court in

Bucheit stated:

      To the extent Defendant contends the district court’s fact-finding related
      to whether and in what amount to impose a fine violated the Sixth
      Amendment, we note the fine Guidelines ranges are a product of the
      offense of conviction and the applicable offense level. See U.S.S.G. §
      5E1.2. Thus, even assuming Booker applies to fines, no constitutional
      violation would arise from the district court’s conclusions as to
      Defendant’s financial circumstances and/or ability to pay a fine because
      those factors would have no effect upon the fine Guidelines range, but
      only upon the district court’s decision as to whether to impose a fine and


                                           12
      in what amount.

Id. (internal citation omitted).

      Accordingly, because a fine does not involve the traditional “Booker problem”

of a district judge making factual findings which would enhance a defendant’s

sentence, a judge’s decision to impose a fine within the Guidelines range does not

implicate the Sixth Amendment or any constitutional provision.

      The fine in this case was at the low end of the Guidelines range. We conclude,

therefore, that even assuming fines are reviewed for reasonableness (as the parties

argue), the district court’s imposition of a $5,000 fine in this case should be entitled

to a rebuttable presumption of reasonableness. See United States v. Williams, 436

F.3d 706, 708 (6th Cir. 2006) (concluding that sentences properly calculated under the

Guidelines are entitled to a rebuttable presumption of reasonableness.). White has

failed to rebut that presumption of reasonableness.

      For the foregoing reasons, we AFFIRM the judgment of the district court.




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