                               UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 09-5132


UNITED STATES OF AMERICA,

                 Plaintiff - Appellee,

          v.

RAY BLANKS,

                 Defendant - Appellant.




                               No. 10-4051


UNITED STATES OF AMERICA,

                 Plaintiff - Appellee,

          v.

DANNY JONES,

                 Defendant - Appellant.


Appeals from the United States District Court for the District
of Maryland, at Baltimore. Richard D. Bennett, District Judge.
(1:08-cr-00565-RDB-1; 1:08-cr-00565-RDB-3)


Submitted:    June 30, 2011                   Decided:     July 21, 2011


Before MOTZ and     SHEDD,    Circuit   Judges,   and   HAMILTON,   Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.


Ray M. Shepard, DUANE MORRIS LLP, Baltimore, Maryland; Gerald
Chester Ruter, Towson, Maryland, for Appellants.         Rod J.
Rosenstein, United States Attorney, Peter M. Nothstein, A. David
Copperthite, Assistant United States Attorneys, Baltimore,
Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

            A     jury    convicted             Ray       Blanks     and    Danny       Jones   of

conspiracy to interfere with commerce by robbery and extortion,

in violation of 18 U.S.C. § 1951 (2006) (counts one and two);

conspiracy to possess firearms in furtherance of                                   a    crime of

violence,   in     violation          of    18    U.S.C.         §   924(o)      (2006)    (count

three); and possession of firearms in furtherance of a crime of

violence,   in     violation          of    18    U.S.C.         §   924(c)      (2006)    (count

four).    Blanks was also charged with possession of firearms by a

convicted   felon,        in    violation             of    18    U.S.C.      § 922(g)     (2006)

(count   five).          Both    Blanks          and       Jones     received     a     240-month

sentence.       On appeal, Blanks and Jones raise two issues: whether

their    rights    under        the    Speedy         Trial       Act     were   violated       and

whether the district court erred in treating the brandishing of

a firearm as a sentencing factor rather than as an element of

the offense.       Blanks separately challenges the reasonableness of

his sentence.      Finding no error, we affirm.



                                                 I.

            This       court      reviews            de     novo      a    district       court‟s

interpretation of the Speedy Trial Act of 1974, while it reviews

any related factual findings for clear error.                               United States v.

Stoudenmire,      74     F.3d    60,       63    (4th      Cir.      1996).       The    relevant

provision of the Speedy Trial Act provides that in “any case in

                                                 3
which    a    plea    of     not    guilty        is   entered,    the    trial       of    a

defendant . . . shall commence within seventy days” from the

later of (1) the filing date of the information or indictment or

(2)     the   defendant‟s          initial        appearance     before       a    judicial

officer.       18     U.S.C.       § 3161(c)(1)        (2006).      Generally,         if    a

defendant is not brought to trial within seventy days, the court

must    dismiss      the   indictment        on    the     defendant‟s    motion.           18

U.S.C.    §   3162(a)(2)       (2006).        “The       requirement     of       dismissal,

however, is not absolute.”               United States v. Wright, 990 F.2d

147, 148 (4th Cir. 1993).                Certain delays are excludable when

computing     the     time     within     which        a    defendant‟s       trial    must

commence.      18 U.S.C. § 3161(h)(1)-(9) (2006); Wright, 990 F.2d

at 148.       One of the delays excluded from the “Speedy Trial

clock” is any “delay resulting from any pretrial motion, from

the filing of the motion through the conclusion of the hearing

on, or other prompt disposition of, such motion.”                                 18 U.S.C.

§ 3161(h)(1)(D).           “The plain terms of the statute . . . exclude

all time between the filing of and the hearing on a motion

whether that hearing on a motion was prompt or not.”                               Henderson

v. United States, 476 U.S. 321, 326 (1986).                       This court has held

that, in a multi-defendant case, a time period excluded for one

defendant is excludable for all defendants in the same action.

United States v. Jarrell, 147 F.3d 315, 316 (4th Cir. 1998);

United States v. Sarno, 24 F.3d 618, 622 (4th Cir. 1994).

                                             4
            In     this    case,   Blanks     and   Jones    were     indicted    on

December 9, 2008; the final defendant appeared on the indictment

on December 30, 2008.         The seventy-day speedy trial period began

on December 30, 2008, requiring the defendants to be brought to

trial on or before March 10, 2009.                  18 U.S.C. § 3161(c)(1).

Although    trial    was    initially     scheduled   for     March    9,    Blanks‟

attorney sent a letter to the district court on January 6, 2009,

indicating he was unavailable for trial that day.                     The district

court treated the letter as a request for a continuance and,

after a conference call with counsel, set a new trial date of

June 29, 2009.       Trial ultimately commenced on July 6, 2009.

            In the interim, on February 23, 2009, the Government

filed a motion for an order requiring the defendants to provide

palm prints.       That motion was not decided until March 26, 2009.

On March 16, 2009, a third co-defendant filed two motions to

suppress,    and    Blanks    filed   a   motion    for     return    of    personal

property.     On March 30, 2009, Blanks joined in the previously

filed motions to suppress and filed an additional motion to

suppress statements by his co-defendants.                   These motions were

not decided until June 23, 2009.              The total number of excludable

days, according to the Government, was 120, and after excluding

these 120 days from the 188-day period, Blanks and Jones were

tried within sixty-eight days of the final initial appearance.



                                          5
               Blanks      and      Jones     posit         two      arguments          in     their

assertion that their speedy trial rights were violated.                                      First,

relying     on       a    Sixth      Circuit          decision,          United        States      v.

Tinklenberg, 579 F.3d 589 (6th Cir. 2009), they contend that, in

order    for     the      time     pretrial       motions         remain       pending       to   be

considered excludable, the court must find that actual delay

resulted from the motion.                    Next, they maintain that defense

counsel‟s motion for a continuance and the court‟s subsequent

granting of the motion were insufficient to toll the “Speedy

Trial    clock”      because        the     district         court       did    not     make      the

appropriate      findings          under    18       U.S.C.       § 3161(h)(7)(A)            (2006).

The      Government          responds            that,        under           Fourth         Circuit

jurisprudence,           “the      filing     of       a     pretrial          motion        creates

excludable time whether or not it can be shown that proceedings

relating to such a motion in fact delayed the trial.”                                         United

States v. Dorlouis, 107 F.3d 248, 253 (4th Cir. 1997).                                       Because

the pretrial motions filed resulted in 120 days of excludable

time bringing the time between the commencement of the Speedy

Trial time and the defendants‟ trial to only sixty-eight days,

the   Government          argues,    the     court         need    not    reach       the    second

issue.

               The       Supreme     Court       granted          certiorari           in     United

States v. Tinklenberg and recently held that the filing of a

pretrial       motion      falls     within          the    scope        of    § 3161(h)(1)(D)

                                                 6
irrespective of whether it actually causes, or is expected to

cause, delay in starting a trial.                 United States v. Tinklenberg,

131 S. Ct. 2007, 2010-11 (2011).                  In light of this decision, we

conclude there was no Speedy Trial Act violation in this case.

The pretrial motions filed in this case resulted in 121 days of

excludable time, see Wright, 990 F.2d at 149 (excluding both

dates on which an event occurs or a motion is filed and date on

which    the    court    disposes      of   the    motion),     bringing       the   time

between commencement of the Speedy Trial time and the trial to

sixty-seven days.         Accordingly, we need not address Blanks‟ and

Jones‟    assertion       that       the    delay    attributable         to    defense

counsel‟s      request    for    a    continuance      cannot       be   excluded     for

purposes of the Speedy Trial Act.



                                            II.

               Jones    and   Blanks       also   contend     the    district        court

impermissibly enhanced their sentences for brandishing firearms

with    respect    to    their   respective        § 924(c)    convictions       (count

four).     Specifically, they argue the district court improperly

treated the “brandishing” of a firearm, which triggers a two-

year higher mandatory minimum, as a sentencing factor instead of

as an element of the offense.

               The district court did not submit to the jury the

question of whether a firearm was brandished in furtherance of a

                                             7
crime of violence.               Rather, the court made such a finding at

sentencing, increasing the mandatory minimum sentence on count

four      from    five      to   seven    years‟          imprisonment.          18    U.S.C.

§ 924(c)(1)(A)(ii) (2006) (“[I]f the firearm is brandished, [the

defendant will] be sentenced to a term of imprisonment of not

less than 7 years.”).

                Jones and Blanks argue that the brandishing provision

is   an    element     of    the   offense          which     must    be   alleged     in    the

indictment and proved to the jury.                       This argument is foreclosed

by the Supreme Court‟s decision in Harris v. United States, 536

U.S. 545 (2002), in which the Court concluded that a district

court‟s application of the seven-year mandatory minimum sentence

under § 924(c)(1)(A)(ii) based on judicial fact finding did not

result in a sentence above the otherwise-applicable statutory

maximum and was not error.                     See id. at 568 (holding, post-

Apprendi, that “[b]asing a 2-year increase in the defendant‟s

minimum sentence on a judicial finding of brandishing does not

evade     the    requirements       of    the       Fifth     and     Sixth   Amendments”).

Blanks and Jones argue, however, that the Supreme Court‟s more

recent decision in United States v. O‟Brien, 130 S. Ct. 2169

(2010), undermines Harris.                In O‟Brien, the provision at issue

increased        the   penalty     if    the    gun       used   by    the    defendant      was

characterized as a machinegun.                  See 18 U.S.C. § 924(c)(1)(B)(ii)

(“[I]f     the     firearm       possessed          by    a   person       convicted    of     a

                                                8
violation of this subsection . . . (ii) is a machinegun . . .

the person shall be sentenced to a term of imprisonment of not

less than 30 years.”).           The O‟Brien Court determined that this

provision was an element of the offense that must be found by a

jury beyond a reasonable doubt.               O‟Brien, 130 S. Ct. at 2180.

           However,      the    Supreme       Court    in    O‟Brien       specifically

distinguished the seven-to-thirty-year increase from the five-

to-seven-year increase in Harris, noting that the increase under

§ 924(c)(1)(B)(ii) if the gun used was a machinegun was “not

akin to the „incremental changes in the minimum‟ that one would

„expect to see in provisions meant to identify matters for the

sentencing judge‟s consideration.‟”               O‟Brien, 130 S. Ct. at 2177

(quoting Harris, 536 U.S. at 554).                     Accordingly, we conclude

this claim is without merit.



                                         III.

           Blanks    also      argues    on     appeal      that    his        sentence   is

procedurally and substantively unreasonable.                        Specifically, he

claims   the    district    court    failed       to     make      an    individualized

assessment based solely on the facts presented and provided an

inadequate explanation for the significant upward variance from

the recommended Guidelines range.

           This    court       reviews    a     sentence      for       reasonableness,

applying   an    abuse   of     discretion       standard.              Gall    v.   United

                                          9
States, 552 U.S. 38, 51 (2007).                    In evaluating reasonableness,

the   court    must    first       determine        whether     the   district      court

committed      any    significant        procedural          errors   in     sentencing

Blanks.     Id.; see United States v. Wilkinson, 590 F.3d 259, 269

(4th Cir. 2010).            This assessment includes determining whether

the   district        court        properly        calculated     Blanks‟      advisory

Guidelines range, whether it considered the factors enumerated

in 18 U.S.C. § 3553(a) (2006) and any arguments presented by the

parties, whether it based the sentence on an “individualized

assessment,” and whether it sufficiently explained the sentence.

Gall, 552 U.S. at 50-51; United States v. Carter, 564 F.3d 325,

328 (4th Cir. 2009).           Because Blanks requested a sentence within

the Guidelines range, his claim of procedural error was properly

preserved.      This court will reverse if an abuse of discretion is

found,    unless      the     court    can        conclude    that    the   error     was

harmless.      United States v. Lynn, 592 F.3d 572, 576, 578 (4th

Cir. 2010).

              If the court finds no significant procedural error, it

next assesses the substantive reasonableness of the sentence.

Wilkinson,      590    F.3d     at    269.          When     reviewing      substantive

reasonableness,       the     court     “may       consider     the   extent     of   the

deviation [from the recommended Guidelines range], but must give

due   deference       to     the     district       court‟s     decision     that     the



                                             10
§ 3553(a)       factors,        on     a    whole,       justify        the     extent       of   the

variance.”       Gall, 552 U.S. at 51.

            Blanks         concedes          that       the    district        court     properly

calculated       a    Guidelines           range       of     184   to    209     months.          In

considering the § 3553(a) factors, the court (1) observed this

was an egregious and violent crime, noting specifically that it

was a home invasion and Blanks awakened a victim by tapping a

handgun on the victim‟s chest; (2) found a “pattern” of criminal

conduct indicative of a person “who has gamed the system for a

long     period       of    time;”          and     (3)        stated     that,        given      the

“extraordinary          level     of       violence      in     this     case,”       “the    public

deserved and needs protection from the acts of Blanks.”                                           The

court accordingly sentenced Blanks above the Guidelines range to

240    months‟       imprisonment.             We       have    reviewed        the    sentencing

transcript        and      conclude          the       district         court     rendered         an

individualized assessment in this case, it adequately explained

the    upward        variance,         and        the       sentence      is      substantively

reasonable.

            Accordingly, we affirm Blanks‟ and Jones‟ convictions

and sentences.          We dispense with oral argument because the facts

and legal contentions are adequately presented in the materials

before    the     court     and      argument          would    not      aid    the    decisional

process.

                                                                                         AFFIRMED

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