                                                                   NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                       No. 14-1574
                                      ____________

                            UNITED STATES OF AMERICA

                                             v.

                                  RUBEN MITCHELL,
                                             Appellant
                                    ____________

                       On Appeal from United States District Court
                         for the Western District of Pennsylvania
                            (W.D. Pa. No. 2-09-cr-00105-001)
                       District Judge: Honorable David S. Cercone
                                      ____________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                              Submitted on June 1, 2015

              Before: FISHER, JORDAN and SHWARTZ, Circuit Judges.

                                 (Filed: August 24, 2015)
                                      ____________

                                        OPINION*
                                      ____________

FISHER, Circuit Judge.

       Ruben Mitchell appeals his final judgment of conviction and sentence, arguing

that the District Court made numerous errors before and after his trial and when it

       *
        This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
sentenced him to 20 years’ imprisonment. Because we find no errors in the District

Court’s rulings, we will affirm.

                                              I.

       We write principally for the parties, who are familiar with the factual context and

legal history of this case. Therefore, we will set forth only those facts that are necessary

to our analysis.

       Mitchell was indicted in 2009 and charged with one count of knowingly,

intentionally, and unlawfully attempting to possess with intent to distribute 5 kilograms

or more of cocaine. A superseding indictment in 2010 added a conspiracy charge against

Mitchell and 21 codefendants, and a second superseding indictment in 2012, among other

things, added a codefendant and additional charges against others but not against

Mitchell.

       The Government contended that Mitchell attempted to transport 19 kilograms of

cocaine on a February 2008 Southwest Airlines flight from Oakland, California to

Pittsburgh, Pennsylvania. During a layover in Las Vegas, Mitchell’s suitcase containing

the drugs was mistakenly taken off the plane. Not knowing the suitcase’s owner and in an

effort to identify him or her, Southwest employees opened the suitcase, observed the

drugs, and notified law enforcement officials, who took possession of the suitcase and

drugs. Before trial, Mitchell moved to suppress the drug evidence, but the District Court

denied the motion.


                                              2
       Also before trial, in June 2013, the Government filed an information charging

Mitchell with a prior conviction under 21 U.S.C. §§ 841(b)(1)(A) and 851, making him

eligible for an increased mandatory minimum sentence of 20 years’ imprisonment. The

District Court agreed with the Government, deciding, over Mitchell’s objection, that his

prior conviction made him subject to the 20-year mandatory minimum sentence.

       Mitchell’s trial began in September 2013, and on October 30, 2013, Mitchell was

convicted of both the attempted possession and conspiracy counts. At Mitchell’s

sentencing, the District Court found that Mitchell had a criminal history category of I and

a total offense level of 34, yielding an advisory Guidelines sentencing range of 151 to

188 months’ imprisonment. But because of his prior conviction, Mitchell faced a

mandatory minimum term of imprisonment of 240 months for both counts. The District

Court sentenced Mitchell to concurrent terms of 240 months’ imprisonment.

       Mitchell timely appealed.

                                             II.1

       Mitchell raises four issues on appeal. First, he disputes the District Court’s

decision to impose a 20-year mandatory minimum sentence. Second, he argues that the

District Court should have suppressed the drug evidence recovered from the suitcase

from the 2008 Southwest flight. Third, he challenges the sufficiency of the evidence to

support the jury’s guilty verdict. And fourth, he contends that the District Court should

       1
        The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction
under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).

                                              3
have dismissed the indictment because his constitutional and statutory rights to a speedy

trial were violated. We address these issues in turn.

                                             A.

       Mitchell first challenges the District Court’s decision to impose a mandatory

minimum sentence of 20 years’ imprisonment pursuant to 21 U.S.C. §§ 841(b)(1)(A) and

851. Section 841(b)(1)(A) provides, in relevant part, that for convictions involving 5 or

more kilograms of cocaine under § 841, the punishment cannot be less than 20 years’

imprisonment if the person has a “prior conviction for a felony drug offense [that] has

become final.” According to Mitchell, his prior offense is not a “prior conviction” within

the meaning of § 841. Because Mitchell’s argument raises a purely legal question, we

exercise plenary review.2

       The predicate offense here, which occurred in 1993, was possession of cocaine in

violation of California Health & Safety Code § 11530(a). Mitchell pled no contest. He

was placed on felony probation for 3 years and the imposition of sentence was

suspended. Upon successfully completing his probation, Mitchell’s conviction was set

aside pursuant to California law.3

       The meaning of the term “prior conviction” under § 841 is a matter of federal

law.4 In United States v. Meraz, we held that offenses that resulted in deferred sentences


       2
         United States v. Meraz, 998 F.2d 182, 183 (3d Cir. 1993).
       3
         Cal. Penal Code § 1203.4.
       4
         See Meraz, 998 F.2d at 183.

                                             4
and probation under state diversionary sentencing programs qualified as final prior

convictions under § 841.5 Although Meraz focused on the meaning of the term “final,”

implicit in our holding was that a defendant whose sentence is subject to expungement

after serving probation also has a “prior conviction” for the purposes of § 841.

Accordingly, we agree with the District Court and hold that Mitchell’s 1993 drug offense

is a prior conviction under § 841 based on his no contest plea, even though his sentence

was suspended, he only served probation, and the offense was later set aside.6

                                            B.

       Next, Mitchell contends that the District Court incorrectly denied his motion to

suppress the drug evidence from the suitcase. We apply a “mixed standard of review” to a

district court’s order denying a motion to suppress, reviewing factual findings for clear

error and legal conclusions de novo.7


       5
         Id. at 184–85.
       6
         Our holding is consistent with the nearly unanimous view of our sister circuits.
See United States v. Law, 528 F.3d 888, 911 (D.C. Cir. 2008) (per curiam) (collecting
cases). We are unpersuaded by the reasoning of the one outlier case relied on by Mitchell,
United States v. Stallings, 301 F.3d 919 (8th Cir. 2002). Although Mitchell points out that
California has since passed a law allowing people convicted of certain felonies, including
possession of cocaine, to apply to have their felony convictions changed to misdemeanor
convictions, that does not change the fact that Mitchell had a felony conviction at the
time he violated § 841. See United States v. Boumelhem, 339 F.3d 414, 426–27 (6th Cir.
2003) (“[A]t the time [the defendant] took the actions that would form the basis of his
federal conviction, the sentencing court had not declared [his] earlier state conviction to
be a misdemeanor.”). Nor is there any indication that Mitchell has actually applied to
change his conviction to a misdemeanor or that his application would be granted if he did
apply.
       7
         United States v. Lewis, 672 F.3d 232, 236–37 (3d Cir. 2012).

                                             5
       According to Mitchell, the District Court clearly erred when it found that

Southwest employees opened the suitcase before law enforcement personnel opened it,

and when the District Court found that Southwest employees were not acting as agents of

law enforcement when they opened the suitcase. We disagree.

       The Fourth Amendment does not apply to a search or seizure “by a private

individual not acting as an agent of the Government or with the participation or

knowledge of any governmental official.”8 Moreover, when a private actor initiates a

search, law enforcement officers may constitutionally conduct a search that does not

exceed the scope of the initial private search.9

       The District Court did not clearly err when it found that Southwest employees, not

law enforcement, first searched the suitcase. The record amply supports this finding. Two

Southwest employees, Jennifer O’Connor and Melissa Vallet, testified that they looked in

the suitcase before any law enforcement officers did. Nor did the District Court err by

finding that the Southwest employees were not acting as agents of law enforcement or at

the direction of law enforcement. O’Connor testified that she opened the suitcase not for

any law enforcement purpose, but “to look for the owner of the bag.”10 Moreover, Vallet

testified that she observed what she believed to be cocaine in the suitcase, which she

reported to law enforcement, so any subsequent search by law enforcement did not

       8
        United States v. Jacobsen, 466 U.S. 109, 113 (1984) (internal quotation marks
omitted).
      9
        Id. at 115.
      10
          S.A. 45.

                                              6
exceed the scope of the initial private search. We therefore see no violation of Mitchell’s

Fourth Amendment rights and, consequently, no error in the District Court’s denial of

Mitchell’s suppression motion.

                                              C.

       Mitchell argues further that the evidence was insufficient to sustain his

convictions. We consider the evidence in the light most favorable to the prosecution, and

will sustain the verdict “if any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt.”11

       We have little trouble upholding the jury’s verdict. With respect to the attempted

possession count, a rational juror could have concluded that the suitcase containing the

drugs belonged to Mitchell and that he intended to distribute the cocaine inside. The jury

was presented with evidence showing that Mitchell had a suitcase that was too heavy to

place in the plane’s overhead compartment, that the suitcase was checked, that Mitchell

was unable to locate his suitcase when he arrived in Pittsburgh, and that Mitchell

presented a baggage tag with the same number as the tag attached to the unclaimed

suitcase containing cocaine in Las Vegas.

       And with respect to the conspiracy count, the jury could have reasonably inferred

that Mitchell was part of a drug conspiracy based on his numerous trips to Pittsburgh of

short duration, his unexplained income, and the testimony of two coconspirators who

       11
        United States v. Perez, 280 F.3d 318, 342 (3d Cir. 2002) (internal quotation
marks omitted).

                                               7
spoke of Mitchell’s involvement in the conspiracy as a courier,12 not to mention the

evidence showing that Mitchell’s suitcase on his final trip contained 19 kilograms of

cocaine. Accordingly, we conclude that the evidence was sufficient to support the

convictions.

       Mitchell also moved pursuant to Federal Rule of Criminal Procedure 33 for a new

trial, and the District Court denied the motion. We review a district court’s denial of a

motion for a new trial for abuse of discretion.13 We find no abuse of discretion in the

District Court’s decision to deny Mitchell’s motion, given the strong evidence of guilt.

                                              D.

       Finally, Mitchell argues that the District Court should have dismissed the

indictment based on violations of his constitutional and statutory rights to a speedy trial.

Our review of the District Court’s legal conclusion that Mitchell’s speedy trial rights

were not violated is plenary, and we review the factual underpinnings of that conclusion

for clear error.14

       Again, we disagree with Mitchell. Although there was a substantial delay between

Mitchell’s 2009 arrest and his 2013 trial, we agree with the District Court that most of the

delay is attributable to Mitchell’s and his codefendants’ pretrial litigation activities,

       12
          Perez, 280 F.3d at 344 (“[U]ncorroborated accomplice testimony may
constitutionally provide the exclusive basis for a criminal conviction. This is particularly
the case where the defense has ample opportunity to cross-examine the Government’s
witnesses . . . .” (internal quotation marks and citations omitted)).
       13
          United States v. Quiles, 618 F.3d 383, 390 (3d Cir. 2010).
       14
          United States v. Velazquez, 749 F.3d 161, 174 (3d Cir. 2014).

                                               8
ranging from changing lawyers to seeking extensions of time to filing numerous pretrial

motions. We also agree with the District Court’s determination that the Government did

not delay the case in bad faith or negligently, a determination to which we give

“considerable deference.”15 Rather, the Government showed reasonable diligence in

bringing this complex case to trial, and any prejudice Mitchell suffered because of the

delay was largely attributable to his actions and his codefendants’ actions, not to the

Government’s.

       We are also unpersuaded by Mitchell’s argument that his statutory rights to a

speedy trial under 18 U.S.C. § 3161 were violated. Here, Mitchell attacks the

Government’s decision to twice bring superseding indictments as unreasonable actions to

delay the case. But as the Government points out, the first superseding indictment added

most of the coconspirators to the case, and the second superseding indictment added a

significant player in the conspiracy to the case. These actions were hardly unreasonable.

                                            III.

       For the reasons set forth above, we will affirm the District Court’s rulings.




       15
            Id. at 176.

                                             9
