              NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                       File Name: 06a0460n.06
                        Filed: June 30, 2006

                                 No. 04-2283

                    UNITED STATES COURT OF APPEALS
                         FOR THE SIXTH CIRCUIT

United States of America,             )
                                      )
            Plaintiff-Appellee,       )          ON APPEAL FROM THE
      v.                              )          UNITED STATES DISTRICT
                                      )          COURT FOR THE EASTERN
Ray Reci Robinson,                    )          DISTRICT OF MICHIGAN
                                      )
            Defendant-Appellant.      )


BEFORE: DAUGHTREY and COLE, Circuit Judges, and GRAHAM,1 District
Judge.

      GRAHAM, District Judge. Defendant-appellant Ray Reci Robinson
appeals his conviction and sentence for one count of being a felon
in possession of a firearm in violation of 18 U.S.C. §922(g)(1),
and   one   count   of   possession   with     the   intent   to   distribute
approximately 7.5 grams of crack cocaine in violation of 21 U.S.C.
§841(a)(1) and §841(b)(1)(B)(iii).             Defendant argues that the
district    court   erred   in   denying   his    motion   to   dismiss   the
indictment based on alleged violations of the Speedy Trial Act, 18
U.S.C. §3161(j)(1), the Interstate Agreement on Detainers, 18
U.S.C. app. 2, §2, art. III(c), and his right to a speedy trial
under the Sixth Amendment of the United States Constitution.
Defendant also contends that the waiver of appeal rights contained
in his plea agreement is invalid and unenforceable, and that his
case must be remanded for resentencing in light of United States v.



      1
       The Honorable James L. Graham, United States District Judge for the
Southern District of Ohio, sitting by designation.
Booker, 543 U.S. 220 (2005).   For the following reasons, we AFFIRM
the judgment and sentence imposed by the district court.
Facts of the Case
     Defendant was convicted in April of 2000 for possession of
cocaine in the Wayne County Circuit Court, Wayne County, Michigan,
and was sentenced to a lifetime term of probation.   In December of
2000, the state court imposed drug treatment as an additional
condition of probation, and on January 18, 2001, defendant was
placed in the Gateway Detention Facility.   He left the facility on
March 16, 2001, and a probation violation warrant was issued for
his arrest.
     On April 27, 2001, police officers in Detroit, Michigan
executed a search warrant at 12684 Sussex in Detroit.    Defendant
was observed attempting to climb out of a bedroom window.   He had
a small nickel-plated revolver in his hand.   He was arrested, and
officers found twenty-eight small plastic bags of crack cocaine in
his pocket. Plaintiff was confined in the Wayne County Jail on the
probation violation warrant.   On May 2, 2001, he pleaded guilty to
the probation violation.
     On May 14, 2001, a federal criminal complaint was filed
charging defendant with being a felon in possession of a firearm on
April 27, 2001, and an arrest warrant was issued on the complaint.
On May 15, 2001, the United States Marshal’s Service in Detroit
lodged a detainer against defendant at the Wayne County Jail based
on the federal complaint, using Form USM-16a, captioned “Detainer
Against Unsentenced Prisoner.”
     On May 18, 2001, defendant was sentenced in state court to a
term of imprisonment of 3-1/2 years to 20 years on the probation


                                 2
violation.   He was transported to the Macomb Correctional Facility
on May 21, 2001, to serve the state sentence.   By letter dated May
29, 2001, the Michigan Department of Corrections notified the
United States Marshal’s Service that the federal detainer had been
lodged against the defendant.   The letter further stated that the
defendant “is serving a 3 year 6 month to 20 year sentence for
Controlled Substance.   His earliest release date is 04/01/2004 and
his maximum release date is 03/25/2021.”   However, no Form USM-17,
captioned “Detainer Against Sentenced Prisoner,” was ever lodged.
As a result, defendant was never informed of his right to demand a
speedy trial on the federal charges.
     On May 8, 2002, a federal indictment was returned charging
defendant with being a felon in possession of a firearm and
possession with the intent to distribute approximately 7.5 grams of
crack cocaine.      Defendant made his initial appearance on the
federal indictment on May 20, 2002, and was arraigned on May 21,
2002, entering not guilty pleas to the counts in the indictment.
On May 21, 2002, defendant also signed a waiver of anti-shuttling
rights under the Interstate Agreement on Detainers and was returned
to state custody.
     A jury trial was scheduled for July 2, 2002. However, on July
17, 2002, an order was filed vacating the trial date.     On August
29, 2002, defendant filed a motion to dismiss the indictment for
failure to return the indictment within thirty days of the date of
arrest in violation of 18 U.S.C. §3161(b).      On October 7, 2002,
defendant filed a motion for reconsideration of the court’s denial
of the motion to dismiss. On October 9, 2002, defendant’s attorney
filed a motion to withdraw, and the motion was granted on November


                                 3
7, 2002.      New counsel was appointed on November 12, 2002.                        A
pretrial conference was held on February 12, 2003, and trial was
scheduled for May 20, 2003.           By stipulation, the trial was later
continued to July 15, 2003.           On July 8, 2003, defendant filed a
supplemental    brief    in   support       of   the    motion    to   dismiss      the
indictment.     The trial was rescheduled to September 2, 2003, and
again, by stipulation, to October 7, 2003.
      On October 1, 2003, the district court scheduled a hearing on
the motion to dismiss for October 29, 2003, and scheduled the trial
for November 4, 2003.         At the hearing on October 29, 2003, the
motion to dismiss was denied, and a memorandum opinion and order
was filed on November 4, 2003.         On November 10, 2003, the trial was
continued by stipulation to January 13, 2004. On January 13, 2004,
the court held a pretrial conference at which it was reported that
the   parties   were    negotiating     a    plea.       On    January    26,     2004,
defendant filed a motion for reconsideration of the November 4th
order denying his motions to dismiss.                  On February 6, 2004, the
district   court       entered   an     order     denying        the     motion     for
reconsideration.
      On April 5, 2004, defendant entered pleas of guilty to Counts
1 and 2 of the indictment pursuant to a plea agreement.                     On April
14, 2004, defendant was paroled from his state sentence, and was
taken into federal custody at that time.                      On October 5, 2004,
defendant was sentenced to a term of imprisonment of 70 months.
First Assignment of Error
      Defendant argues in his first assignment of error that the
district court erred in refusing to dismiss the indictment due to
violations of the Speedy Trial Act and the Interstate Agreement on


                                        4
Detainers,     specifically,    the   failure   to   provide   him   with
information on how to demand a trial on the pending federal
charges.     In the alternative, defendant argues that the district
court should have ordered that the sentence on the federal charges
run retroactively concurrent with defendant’s state sentence.
     The Speedy Trial Act provides in relevant part:
     (j)(1) If the attorney for the Government knows that a
     person charged with an offense is serving a term of
     imprisonment in any penal institution, he shall promptly–

     (A) undertake to obtain the presence of the prisoner for
     trial; or

     (B) cause a detainer to be filed with the person having
     custody of the prisoner and request him to so advise the
     prisoner and to advise the prisoner of his right to
     demand trial.

18 U.S.C. §3161(j)(1).         The Interstate Agreement on Detainers
similarly provides:
     (c) The warden, commissioner of corrections, or other
     official having custody of the prisoner shall promptly
     inform him of the source and contents of any detainer
     lodged against him and shall also inform him of his right
     to make a request for final disposition of the
     indictment, information, or complaint on which the
     detainer is based.

18 U.S.C. app. 2, §2, art. III(c).
     In this case, the Michigan Department of Corrections notified
the Marshal’s Service that the previous federal detainer had been
lodged against the defendant, and that the defendant was serving a
state sentence. However, the Marshal’s Service neglected to inform
the United States Attorney’s Office of that fact, and as a result,
Form USM-17, which contains language requesting the warden to
advise the defendant of the pending charges and his right to demand
a trial on those charges, was never sent to the state institution.

                                      5
The government concedes that because the Michigan prison officials
were never asked to inform defendant that he had the right to
request a trial on the federal charges, §3161(j)(1) was violated.
     The district court correctly held that dismissal of the
indictment   is   not   an   appropriate   remedy   for   a   violation    of
§3161(j).    Numerous courts have so held.     See, e.g., United States
v. Walker, 255 F.3d 540, 542 (8th Cir. 2001); United States v.
Lainez-Leiva, 129 F.3d 89, 91 (2nd Cir. 1997); United States v.
Guzman, 85 F.3d 823, 829 n. 4 (1st Cir. 1996); United States v.
Wickham, 30 F.3d 1252, 1255 (9th Cir. 1994); United States v. Dawn,
900 F.2d 1132, 1135-36 (7th Cir. 1990); United States v. Anderton,
752 F.2d 1005, 1008 (5th Cir. 1985).       This court has also held in
an unpublished decision that dismissal of the indictment is not an
available remedy for a violation of the notice provisions of
§3161(j).    See United States v. Dahlquist, 993 F.2d 1547 (table),
1993 WL 152073 (6th Cir. 1993).
     The district court also correctly held that dismissal of the
indictment is not an available remedy for a violation of the notice
provision of the Interstate Agreement on Detainers.             See United
States v. Lualemaga, 280 F.3d 1260, 1265 (9th Cir. 2002); Walker,
255 F.3d at 524; United States v. Pena-Corea, 165 F.3d 819, 821-22
(11th Cir. 1999); Lara v. Johnson, 141 F.3d 239, 243 (5th Cir. 1998).
     As to defendant’s argument that the district court should have
ordered that his federal sentence run concurrently with the state
sentence which he had already served, defendant points to no
provision in the Speedy Trial Act or the Interstate Agreement on
Detainers which would require the trial court to do so.                   The
district court properly acted within its discretion in considering


                                    6
but rejecting concurrent sentences.          In addition, the district
court did note that the state probation violation resulted in
defendant’s criminal history category being raised from a Category
IV to a Category V, and departed downward to a criminal history
category of IV, thereby reducing defendant’s sentence by more than
a year to compensate for the delay in arraigning him.
      Defendant’s first assignment of error is denied.
Second Assignment of Error
      Defendant argues in his second assignment of error that his
right to a speedy trial under the Sixth Amendment of the United
States Constitution was violated due to the delay in bringing him
to   trial   on   the   federal   charges.   In   determining   whether   a
defendant’s right to a speedy trial has been violated, this court
reviews questions of law de novo and questions of fact under the
clearly erroneous standard.        United States v. Smith, 94 F.3d 204,
208 (6th Cir. 1996).
      The Sixth Amendment provides, “In all criminal prosecutions,
the accused shall enjoy the right to a speedy and public trial.”
U.S. Const. amend. VI.      The four factors which must be balanced in
a speedy trial analysis are: (1) whether the delay was uncommonly
long; (2) the reason for the delay; (3) whether the defendant
asserted his right to a speedy trial; and (4) whether prejudice
resulted to the defendant.         Barker v. Wingo, 407 U.S. 514, 530
(1972).      See also Doggett v. United States, 505 U.S. 647, 651
(1992)(restating and applying the four-factor test in Barker).            No
one factor is determinative; rather, they are related factors which
must be considered together with such other circumstances as may be
relevant.     Barker, 407 U.S. at 533.


                                      7
      The first factor is a threshold requirement, and if the delay
is not uncommonly long, judicial examination ceases. United States
v. Schreane, 331 F.3d 548, 553 (6th Cir. 2003). A delay approaching
one year is presumptively prejudicial.            Doggett, 505 U.S. at 652,
n. 1.   If the threshold is satisfied, the first factor must be
considered along with the remaining three factors in the speedy
trial analysis.       Id.      Since the delay in this case between the
filing of federal charges and the district court’s decision filed
on November 4, 2003, denying the motion to dismiss, exceeded one
year, we will address the remaining factors.
      The second Barker factor focuses on the reason for the delay.
Governmental delays motivated by bad faith, harassment, or attempts
to seek a tactical advantage weigh heavily against the government,
while neutral reasons such as negligence are weighted less heavily,
and valid reasons for a delay weigh in favor of the government.
Barker, 407 U.S. at 531.             Addressing the second factor, the
district court noted the government’s concession that the proper
detainer     form   was   not   filed   against   defendant    after   he   was
sentenced on the state charges, but further found that defendant
was aware of the federal firearm charge pending against him, and
that he could have made further inquiries of the state officials
about what he could do to expedite the resolution of the federal
charges.     The record supports the district court’s conclusion that
the government and the defendant shared some fault in the delay of
one   year    in    securing    defendant’s   presence   for    arraignment.
However, the record shows no fault greater than negligence on the
part of government and the Marshal’s Service in failing to file the
proper detainer form.           The record also supports the district


                                        8
court’s findings that most of the additional seventeen-month delay
between the filing of the indictment on May 8, 2002, and the
decision denying the motion to dismiss was attributable to the
defendant because of various continuances requested by defendant’s
counsel, the withdrawal of defendant’s original counsel due to
defendant’s    complaints   concerning   the   breakdown   of   their
relationship, the appointment of new counsel, and defendant’s
requests for additional time to file a supplemental memorandum in
support of his motion to dismiss.
       The third Barker factor, defendant’s assertion of his speedy
trial rights, requires proof by the government that the defendant
had knowledge of the federal charges.    See United States v. Brown,
169 F.3d 344, 350 (6th Cir. 1999).       Where it is shown that the
defendant was aware of the charges against him, then this factor
weighs heavily against the defendant.     See Schreane, 331 F.3d at
557.    The district court found that the third factor weighed
against defendant because defendant failed to timely assert his
right to a speedy trial. The court found that defendant learned of
the pending federal complaint on May 29, 2001, but did not file his
motion to dismiss on speedy trial grounds until August 29, 2002,
fifteen months later.    This finding of the district court is not
clearly erroneous, and defendant’s failure to timely assert his
right to a trial upon learning of the federal charges weighs
against his speedy trial claim.
       The final Barker factor requires the defendant to show that
“substantial prejudice” has resulted from the delay. Schreane, 331
F.3d at 557.   If the government “prosecutes a case with reasonable
diligence, a defendant who cannot demonstrate how his defense was


                                  9
prejudiced with specificity will not make out a speedy trial claim
no matter how great the ensuing delay.”       United States v. Howard,
218 F.3d 556, 564 (6th Cir. 2000). In the absence of particularized
trial prejudice, delay attributable to the government’s negligence
“has typically been shockingly long” to warrant a finding of
prejudice.   Schreane, 331 F.3d at 559 (citing Doggett, 505 U.S. at
657, involving a six-year delay).        Shorter delays attributable to
the government’s negligence have been held not to give rise to a
presumption of prejudice.    See id. (delay of thirteen and one-half
months attributable to government’s negligence did not raise a
presumption of prejudice).
     The district court found that defendant had failed to show any
prejudice to his defense resulting from the one-year delay between
the filing of federal charges and defendant’s arraignment on those
charges and the further delay of approximately seventeen months
between the arraignment and the ruling on the motion to dismiss.
The court noted that although defendant was incarcerated pending
trial, this was due to the fact that he was serving his state
sentence.
     Defendant   argued   before   the    district   court   that   he   was
prejudiced because of the loss of an essential witness.                  He
contended that at the time of his arrest on April 27, 2001, he was
at a drug house where another man was present selling drugs, and
that this man fled the house upon the arrival of the police.
Defendant maintained that this man was an essential witness because
the man could testify that he was selling drugs at the house, and
that defendant was now unable to locate this man.            The district
court correctly rejected this argument, finding that there was no


                                   10
reason to believe that the inability to locate this witness was due
to the delay in defendant’s federal case rather than defendant’s
incarceration on the state case.         We also note that defendant did
not explain how testimony that another other man was selling drugs
in the house would be of benefit to his defense in light of the
fact that defendant was arrested with a firearm on his person and
numerous bags of crack cocaine in his pocket.
     Defendant also complained that the pendency of the federal
charges rendered him ineligible for certain placements and programs
in the state prison.     The district court correctly concluded that
this was not the type of prejudice cognizable under the Sixth
Amendment.   United States v. White, 985 F.2d 271, 276 (6th Cir.
1993)(prejudice factor relates to delay that causes impairment of
the defense, not delay that prevents federal sentence from running
concurrently with a previously imposed sentence).
     We agree with the determination of the district court that no
Sixth Amendment violation occurred in this case.           The district
court’s factual findings are not clearly erroneous.        Weighing the
Barker factors, we conclude that defendant was not denied his
constitutional   right   to   a   speedy   trial.    Defendant’s   second
assignment of error is denied.
Third Assignment of Error
     In his third assignment of error, defendant contends that the
provision in paragraph 5 of his plea agreement in which he agreed
to waive his right to appeal his conviction or sentence if the
court imposed a sentence of less than 87 months is not enforceable
because the trial court never specifically addressed him during the
plea proceedings to ascertain if he understood that provision.        He


                                    11
also argues that the waiver provision is an invalid contract of
adhesion.    Finally, he argues that since he was sentenced prior to
the Supreme Court’s decision in    United States v. Booker, 543 U.S.
220 (2005), the Sentencing Guidelines were viewed as mandatory by
the sentencing court, and his case should therefore be remanded for
resentencing pursuant to Booker.
     The waiver provision contained in paragraph 5 of defendant’s
plea agreement reads as follows:
     Defendant’s waiver of appeal rights.       If the court
     imposes a sentence equal to or less than the maximum
     sentence described in ¶ 2 of this agreement [87 months],
     defendant waives any right he may have to appeal his
     conviction or sentence, including any right under 18
     U.S.C. §3742 to appeal on the grounds that the sentence
     was imposed as a result of an incorrect application of
     the sentencing guidelines. The parties agree, however,
     pursuant to Rule 11(a)(2), that defendant Robinson may
     appeal the court’s ruling on two specific issues: (1)
     Whether Defendant Robinson received adequate notice
     pursuant to the Interstate Agreement on Detainers and (2)
     whether the Sixth Amendment’s Speedy Trial Clause was
     violated.

     Defendant first argues that the district court did not comply
with the provisions of Fed.R.Crim.P. 11(b)(1)(N), which provides
that before accepting a plea of guilty, the court must inform the
defendant of, and determine that the defendant understands, “the
terms of any plea-agreement provision waiving the right to appeal
or to collaterally attack the sentence.”     Rule 11(b)(1)(N).   The
district court in this case did not specifically address the
defendant concerning the appellate waiver provision in his plea
agreement.    The defendant did not object to this error before the
district court.
     “This Court reviews the question of whether a defendant waived



                                  12
his right to appeal his sentence in a valid plea agreement de
novo.”    United States v. Smith, 344 F.3d 479, 483 (6th Cir. 2003).
Alleged violations of Rule 11 are reviewed for plain error if the
defendant did not object before the district court.              United States
v. Vonn, 535 U.S. 55, 59 (2002).            Defendant bears the burden of
proof on plain error review.       Id. at 62.      Defendant must show that
there is (1) error, (2) that is plain, and (3) that affects
substantial rights.       If these three conditions are met, this court
may notice a forfeited error if the error seriously affects the
fairness,    integrity,     or   public     reputation    of    the   judicial
proceedings.    Johnson v. United States, 520 U.S. 461, 467 (1997).
       In United States v. Murdock, 398 F.3d 491 (6th Cir. 2005), this
court held that plain error occurred where the district court
failed to address the defendant during the plea proceedings to
ascertain whether the defendant was aware of and understood the
appellate waiver provision in his plea agreement.              In Murdock, the
prosecutor, in summarizing the important provisions of the plea
agreement, did not refer to the appellate waiver provision, and the
district court failed to determine whether the defendant had
discussed the waiver provision with his attorney.               Id. at 497.
       However, where the defendant states that he had reviewed the
plea   agreement   with    his   attorney    and   that   his    attorney   had
explained the agreement, or where the prosecutor refers to the
waiver provision in summarizing the terms of the plea agreement,
this may be sufficient to insure that the waiver was knowing and
voluntary.     Id. at 497-98.     See also United States v. Sharp, 442
F.3d 946 (6th Cir. 2006)(upholding plea where prosecutor summarized
appellate waiver provision, and defendant stated in court that he


                                     13
had read the plea agreement, that he understood its terms, and that
he had discussed the agreement with his attorney); United States v.
Wilson, 438 F.3d 672, 674 (6th Cir. 2006)(explanation of the
appellate waiver provision by prosecutor in summary satisfied Rule
11).
       In the instant case, the district court asked defendant
whether his attorney had explained the plea agreement that he
signed and all of the provisions in it, and defendant responded,
“Yes, Your Honor.”    The prosecutor summarized the appellate waiver
provision, stating:
       Your Honor, I would like to point to one special
       provision regarding the defendant’s waiver of his
       appellate rights.    In this particular agreement, the
       defendant does agree to waive his appeal rights as a
       conditional waiver, Your Honor.      The defendant, Mr.
       Robinson, may appeal the Court’s ruling on two specific
       issues; on whether defendant Robinson received adequate
       notice pursuant to the Interstate Agreement on Detainers.
       And, two, whether the Sixth Amendment speedy trial clause
       was violated.     Those are the only two issues the
       defendant has preserved for appellate purposes, Your
       Honor.

The district court then asked the defendant, “Is this the agreement
as you understand it?” to which the defendant replied, “Yes, Your
Honor.”    Thus, the substitutes for Rule 11 compliance noted in
Murdock are present in this case.       The failure of the district
court to specifically address defendant concerning the waiver
provision did not affect his substantial rights.
       Defendant also argues that the waiver of appellate rights in
his plea agreement was invalid as a contract of adhesion.          As a
general matter, a “waiver of appeal is valid, and must be enforced,
unless the agreement in which it is contained is annulled[.]”
United States v. Hare, 269 F.3d 857, 862 (7th Cir. 2001)(rejecting

                                  14
argument that a waiver of appeal was invalid contract of adhesion,
and noting that defendant was free to reject the plea offer and
proceed to trial).       In an unreported decision, United States v.
Hudson, 52 F.3d 326 (table), 1995 WL 234652 at *1 (6th Cir. 1995),
this court held that defendant’s plea agreement was not an adhesion
contract, noting that the defendant “was free to reject the
agreement, and clearly negotiated with the government over its
terms.”      See also United States v. McClure, 338 F.3d 847, 850-51
(8th Cir. 2003)(plea agreement not contract of adhesion; defendant
did not have to enter into agreement, but was free to hold out for
better terms, to proceed to trial, or to plead guilty without an
agreement); United States v. Difeaux, 163 F.3d 725, 728 (2d Cir.
1998)(plea agreement waiving appeal rights if sentence imposed was
within stipulated Guidelines range upheld against argument that it
was adhesion contract).
     Here, defendant was free to reject the government’s plea offer
and proceed to trial.          Instead, he negotiated a plea agreement
which actually preserved his right to appeal two legal issues. The
appeal waiver in the plea agreement was not an unenforceable
adhesion contract.
     Defendant also argues that the appeal waiver provision should
not bar his right to challenge his sentence under United States v.
Booker, and that his case should be remanded to permit the trial
judge   to    consider   the   imposition   of   a   sentence   outside   the
Guidelines, applying the statutory sentencing factors in 18 U.S.C.
§3553(a).     In United States v. Bradley, 400 F.3d 459, 463-65 (6th
Cir. 2005), this court held that a voluntary and intelligent plea
of guilty may waive constitutional or statutory rights then in


                                     15
existence as well as those that courts may recognize in the future,
and that a defendant cannot seek to set aside his waiver of
appellate rights and invalidate his sentence because he did not
know when he pleaded guilty that the Supreme Court would later
declare the Sentencing Guidelines to be advisory under Booker. See
also   United    States     v.   Dillard,    438    F.3d    675,   685    (6th    Cir.
2006)(defendant who waived right to appeal his sentence cannot seek
remand under Booker).
       Under    paragraph    5   of   the    plea   agreement      in   this     case,
defendant agreed to waive his right to appeal his conviction or
sentence if the court imposed a sentence equal to or less than 87
months, with the exception of his arguments that he received
inadequate notice of pending charges pursuant to the Interstate
Agreement on Detainers and that his Sixth Amendment right to a
speedy trial was violated.            The court imposed a sentence of 70
months,   thereby     triggering      the     waiver   of    appeal      provision.
Although the defendant did not expressly agree to be sentenced
under the Guidelines, this fact does not mandate a remand for
resentencing.      See Dillard, 438 F.3d at 685 (absence of express
provision agreeing to Guidelines sentence “is of questionable
relevance to the Bradley holding.”).
       The waiver of appeal rights in defendant’s plea agreement is
valid, and, in light of Bradley, no remand for resentencing is
required.      Defendant’s third assignment of error is denied.
Conclusion
       In accordance with the foregoing, the judgment and sentence
imposed by the district court are AFFIRMED.




                                        16
