                       RECOMMENDED FOR FULL-TEXT PUBLICATION
                            Pursuant to Sixth Circuit Rule 206
                                   File Name: 09a0323p.06

               UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                 _________________


                                                 X
                           Plaintiff-Appellee, -
 UNITED STATES OF AMERICA,
                                                  -
                                                  -
                                                  -
                                                       Nos. 06-2646; 08-1765
          v.
                                                  ,
                                                   >
                                                  -
                        Defendant-Appellant. -
 JASON LOUIS TINKLENBERG,
                                                  -
                                                 N
                    Appeal from the United States District Court
               for the Western District of Michigan at Grand Rapids.
              No. 05-00239-001—Richard A. Enslen, District Judge;
                     Paul Lewis Maloney, Chief District Judge.
                                  Argued: June 19, 2009
                         Decided and Filed: September 3, 2009
                 Before: KEITH, CLAY, and GIBBONS, Circuit Judges.

                                   _________________

                                        COUNSEL
ARGUED: Kevin M. Schad, SCHAD & SCHAD, Lebanon, Ohio, for Appellant. Julie Ann
Woods, ASSISTANT UNITED STATES ATTORNEY, Grand Rapids, Michigan, for
Appellee. ON BRIEF: Kevin M. Schad, SCHAD & SCHAD, Lebanon, Ohio, for
Appellant. Julie Ann Woods, ASSISTANT UNITED STATES ATTORNEY, Grand Rapids,
Michigan, for Appellee. Jason Louis Tinklenberg, Kalamazoo, Michigan, pro se.
     CLAY, J., delivered the opinion of the court, in which KEITH, J., joined.
GIBBONS, J. (pp. 17-20), delivered a separate concurring opinion.
                                   _________________

                                         OPINION
                                   _________________

        CLAY, Circuit Judge.           Defendant-Appellant Jason Louis Tinklenberg
(“Tinklenberg”) appeals his conviction and sentence after a jury found him guilty of one
count of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g), and two
counts of possessing material to manufacture methamphetamine, in violation of 21 U.S.C.

                                              1
Nos. 06-2646; 08-1765           United States v. Tinklenberg                          Page 2


§ 843. On appeal, Tinklenberg contends that the district court improperly denied his motion
to dismiss the indictment, because his trial began after the deadline imposed by the Speedy
Trial Act. Tinklenberg also challenges the district court’s subsequent finding that he
violated the terms of his supervised release, as well as the reasonableness of his ensuing
prison sentence. Because Tinklenberg’s trial violated the Speedy Trial Act, we REVERSE
Tinklenberg’s conviction and REMAND with instructions to dismiss his indictment with
prejudice.

                                     BACKGROUND

        On October 20, 2005, the government charged Tinklenberg in an indictment in the
Western District of Michigan with one count of being a felon in possession of a firearm and
two counts of possessing items used to manufacture methamphetamine. At Tinklenberg’s
initial appearance on October 31, 2005, a magistrate judge ordered him detained, and
scheduled an arraignment hearing for November 2, 2005. On November 2, 2005, prior to
his scheduled arraignment, Tinklenberg moved to receive a psychological evaluation for
competency to stand trial. That day, instead of arraigning Tinklenberg, the magistrate judge
granted Tinklenberg’s motion, committing Tinklenberg “for a period not to exceed 30 days
for placement in an appropriate facility” for psychological evaluation. (ROA at 4, 36.)
Tinklenberg was transported to the Metropolitan Correctional Center in Chicago (the
“MCC”) for testing.

        On December 16, 2005, the government requested a thirty day extension of time to
complete Tinklenberg’s psychological evaluation, stating in its motion that the prison
psychiatrist responsible for evaluating Tinklenberg had reported that Tinklenberg “was not
cooperating in the effort to evaluate him.” (ROA at 38-39.) On December 20, 2005, the
district court granted the government’s request for an extension, and ordered that
Tinklenberg’s trial be held in abeyance until his psychological evaluation was completed.
On December 28, 2005, the magistrate judge set a deadline of February 13, 2006 for
completion of the testing. On February 10, 2006, the government requested a second
extension of time, until March 13, 2006, for completion of Tinklenberg’s evaluation. The
government’s request stated that the psychiatrist at the MCC had said that he needed an
additional four weeks to complete the evaluation, but did not explain the cause of the further
Nos. 06-2646; 08-1765           United States v. Tinklenberg                          Page 3


delay. On February 17, 2006, the magistrate judge granted the government’s second request
and set March 13, 2006 as the new deadline for completion of Tinklenberg’s evaluation.

        On March 20, 2006, the court received the MCC’s psychiatric report on Tinklenberg.
Enclosed with the MCC’s evaluation was a cover letter from the warden of the MCC, which
stated that Tinklenberg “was designated to the [MCC] on November 10, 2005, and arrived
at the Institution on November 30, 2005.” (ROA at 147.) On March 22, 2006, the
magistrate judge held a competency hearing, and by order dated March 23, 2006, found
Tinklenberg competent to stand trial. On March 23, 2006, the magistrate judge also
arraigned Tinklenberg, who pled not guilty to all three counts against him. By order dated
March 27, 2006, the district court set the case down for trial on May 30, 2006.

        On March 29, 2006, Tinklenberg filed an ex parte petition to receive an independent
competency evaluation. On April 17, 2006, the magistrate judge granted Tinklenberg’s
petition, ordered the independent evaluator to submit his report to the court by May 15,
2006, and stated that “the period of time until Defendant’s competency is determined shall
be excluded time for the purposes of the Speedy Trial Act[.]” (ROA at 53-54.)

        On April 26, 2006, Tinklenberg filed a pro se motion for new counsel, and on May 9,
2006, Tinklenberg’s counsel moved to withdraw as Tinklenberg’s attorney. Counsel’s
motion indicated that Tinklenberg would not cooperate with the independent evaluator. The
district court once again adjourned the trial date and referred the motions by Tinklenberg and
his counsel to the magistrate judge to resolve. On June 7, 2006, the magistrate judge held
a hearing on the motions, and, on June 9, 2006, ordered new counsel appointed. With
respect to Tinklenberg’s competency evaluation, though the magistrate judge’s June 9, 2006
order is somewhat ambiguous, it appeared to find Tinklenberg competent, noting that the
independent evaluator had concluded as much and that Tinklenberg now opposed the
evaluation. The district court then scheduled Tinklenberg’s trial for August 15, 2006. On
July 25, 2006, the case was reassigned to a new district judge, and the new judge issued an
order moving the trial date forward one day, to August 14, 2006.

        On August 1, 2006, the government requested permission to conduct a video
deposition of a witness. On August 3, 2006, the district court granted the government’s
motion, but ordered that “[t]he parties shall schedule said deposition posthaste so as not to
Nos. 06-2646; 08-1765            United States v. Tinklenberg                            Page 4


delay trial.” (ROA at 115.) On August 8, 2006, the government filed a request to bring two
guns into the courtroom during the trial as evidence, a request the court granted on
August 10, 2006.

        On August 11, 2006, Tinklenberg moved to dismiss his indictment, claiming that the
time required for trying him pursuant to the Speedy Trial Act had lapsed. On August 14,
2006, the morning of trial, the district court denied Tinklenberg’s motion, finding that only
sixty-nine days had lapsed for the purposes of the Speedy Trial Act.

        Tinklenberg’s trial began on August 14, 2006, and on August 16, 2006, the jury
convicted Tinklenberg on all three counts. On December 13, 2006, the district court
sentenced Tinklenberg to thirty-three months of imprisonment, followed by three years of
supervised release. On December 18, 2006, Tinklenberg filed a notice of appeal of his
conviction and sentence.

        On April 21, 2008, while the appeal of his conviction and sentence was still pending,
Tinklenberg was released from prison. On April 28, 2008, Tinklenberg was re-arrested for
violating the terms of his supervised release by testing positive for cocaine. On May 16,
2008, the district court held an evidentiary hearing, at which a probation officer testified that
on April 23, 2008, he took a urine sample from Tinklenberg that tested positive for cocaine.
The government introduced into evidence the lab report showing the test results and
Tinklenberg’s signed statement admitting to cocaine use. On May 30, 2008, the district
court found that Tinklenberg had violated the terms of his supervised release by using
cocaine, and sentenced Tinklenberg to fourteen additional months in prison. Tinklenberg
timely appealed the additional sentence.

        Tinklenberg’s challenge to his initial conviction, and his appeals of the finding that
he violated his supervised release and the ensuing sentence, were consolidated on appeal.

                                        DISCUSSION

I.      Speedy Trial Act Calculations

        The Speedy Trial Act, 18 U.S.C. §§ 3161-74, mandates that “[i]n any case in which
a plea of not guilty is entered, the trial of a defendant charged in an information or
indictment with the commission of an offense shall commence within seventy days from the
Nos. 06-2646; 08-1765           United States v. Tinklenberg                           Page 5


filing date (and making public) of the information or indictment, or from the date the
defendant has appeared before a judicial officer of the court in which such charge is pending,
whichever date last occurs.” § 3161(c)(1). The Speedy Trial Act allows exclusions of time
from the seventy day rule, including, inter alia,

        [a]ny period of delay resulting from other proceedings concerning the
        defendant, including but not limited to (A) delay resulting from any
        proceeding, including any examinations, to determine the mental
        competency or physical capacity of the defendant; . . . (D) 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; . . . [and] (F) delay resulting from transportation of any defendant
        from another district, or to and from places of examination or
        hospitalization, except that any time consumed in excess of ten days from
        the date an order of removal or an order directing such transportation, and
        the defendant’s arrival at the destination shall be presumed to be
        unreasonable[.]
§ 3161(h)(1). The defendant bears the burden of proof to show a violation warranting
dismissal. § 3162(a)(2). This Court “reviews the district court’s interpretation of the Speedy
Trial Act de novo and its factual findings for clear error.” United States v. Marks, 209 F.3d
577, 586 (6th Cir. 2000).

        Tinklenberg was indicted on October 20, 2005 and his trial began 287 days later, on
August 14, 2006. The district court found that only sixty-nine non-excludable days lapsed
during the interval.

        A.      The Start of the Speedy Trial Clock

        The district court found that the Speedy Trial clock began to run on October 31,
2005, the date that Tinklenberg first appeared after his October 20, 2005 indictment. The
government argues that in cases such as this one–where an indictment is filed and the
defendant subsequently appears, but does not plead not guilty until a later date–the seventy
day period does not begin until the not guilty plea. However, this Court has held that where
the defendant’s not guilty plea follows his indictment and initial appearance, whichever of
the indictment or initial appearance that occurs last starts the seventy day period. United
States v. Mentz, 840 F.2d 315, 325-26 (6th Cir. 1988).
Nos. 06-2646; 08-1765            United States v. Tinklenberg                           Page 6


        Moreover, the plain language of the statute supports starting the clock from the date
Tinklenberg initially appeared. “In any case in which a plea of not guilty is entered, the trial
of a defendant . . . shall commence within seventy days from the filing date (and making
public) of the information or indictment, or from the date the defendant has appeared before
a judicial officer of the court in which such charge is pending, whichever date last occurs.”
18 U.S.C. § 3161(c)(1) (emphasis added). Thus, the statute refers to the defendant’s plea in
setting forth the general precondition that the Speedy Trial Act’s requirements are only
relevant in cases in which the defendant proceeds to trial; otherwise, the statute make no
reference to the not guilty plea. See id. However, the statute uses different language, i.e.,
“the date the defendant has appeared,” as the time the seventy day period begins, if the
indictment has already been filed. Id. The well-established rule that “where Congress
includes particular language in one section of a statute but omits it in another section of the
same Act, it is generally presumed that Congress acts intentionally and purposely in the
disparate inclusion or exclusion[,]” Russello v. United States, 464 U.S. 16, 23 (1983), applies
even more clearly where Congress uses contrasting language in the same sentence. Thus,
under the plain language of the statute, “the date the defendant has appeared,” and not the
defendant’s “plea of not guilty,” begins the seventy day period.

        The government cites United States v. O’Dell, 154 F.3d 358, 360-62 (6th Cir. 1998),
to support its opposing position that if the initial appearance occurs before a defendant’s not
guilty plea, the date of the not guilty plea is the event that starts the clock. However, O’Dell
is inapposite. In O’Dell, the defendant initially agreed to plead guilty to manufacturing
marijuana pursuant to an information before an indictment was ever filed, and then
subsequently withdrew his plea. 154 F.3d at 359. The government then indicted him for the
first time, and he pled not guilty. Id. at 359-60. This Court held that the defendant’s
indictment represented an entirely new case against the defendant, and that the defendant’s
initial appearance after that indictment, when he pled not guilty, triggered the Speedy Trial
clock. Id. at 362. This Court found that the clock never started in the defendant’s earlier
case, because he never entered a not guilty plea in the earlier case. Thus, O’Dell stands only
for the proposition that the Speedy Trial Act does not apply to a case in which the defendant
never pleads not guilty. Although this Court opined that the Speedy Trial Act “requires a
not guilty plea to begin the clock running,” that statement was irrelevant to the outcome of
Nos. 06-2646; 08-1765           United States v. Tinklenberg                          Page 7


the case and was therefore dicta. See United States v. Lopez-Valenzuela, 511 F.3d 487, 490
(5th Cir. 2007) (concluding that this Court’s finding in O’Dell that a defendant’s not guilty
plea starts the seventy day period was dicta).

        In short, although the Speedy Trial Act applies only to cases in which the defendant
has entered a not guilty plea, the initial appearance after the indictment is the event that
triggers the seventy day period. Accordingly, Tinklenberg’s initial appearance on October
31, 2005 triggered the Speedy Trial Act’s seventy day period. Following Tinklenberg’s
initial appearance, one day, November 1, 2005, lapsed before Tinklenberg moved for, and
the court granted, a competency evaluation on November 2, 2005. The Speedy Trial clock
thereby stopped after one day had lapsed.

        B.      Days Pretrial Motions are Filed and Decided

        This Court has been somewhat inconsistent with respect to whether the day a pretrial
motion is filed and the day the court disposes of it should be excluded from the Speedy Trial
period. See, e.g., United States v. Crawford, 982 F.2d 199, 203-04 (6th Cir. 1993) (days on
which motion is filed and resolved are excluded); United States v. Thomas, 49 F.3d 253, 256
(6th Cir. 1995) (day on which motion is filed is excluded, but day on which motion is
resolved is included). However, the plain language of the statute mandates excluding the
days on which motions are filed and resolved. See § 3161(h)(1)(D) (excluding “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”) (emphasis added). Moreover,
the vast majority of appellate courts exclude the dates on which motions are filed and
resolved. See, e.g., United States v. Fonseca, 435 F.3d 369, 372 (D.C. Cir. 2006); United
States v. Papaleo, 853 F.2d 16, 21 (1st Cir. 1988); United States v. Oberoi, 547 F.3d 436,
454 (2d Cir. 2008); Gov’t of Virgin Islands v. Duberry, 923 F.2d 317, 320 n.8 (3d Cir. 1991);
United States v. Stoudenmire, 74 F.3d 60, 63 (4th Cir. 1996); United States v. Johnson, 29
F.3d 940, 943 n.4 (5th Cir. 1994); United States v. Daychild, 357 F.3d 1082, 1093 (9th Cir.
2004); United States v. Yunis, 723 F.2d 795, 797 (11th Cir. 1984).

        Thus, we will exclude from the time computation the dates pretrial motions were
filed and resolved. In this case, the only two pretrial motions relevant to the Speedy Trial
Nos. 06-2646; 08-1765                United States v. Tinklenberg                                   Page 8


                                                    1
Act were the two competency evaluations.                Under § 3161(h)(1)(A), delays caused by
competency evaluations are treated as a special category of excluded time, which will
be discussed in detail below. However, § 3161(h)(1)(A) does not specifically instruct
whether to count the days on which motions for such evaluations are made and resolved.
See § 3161(h)(1)(A) (stating only that “delay resulting from any proceeding, including
any examinations, to determine the mental competency or physical capacity of the
defendant” is excluded). Because the two incompetency evaluations were commenced
by way of pretrial motions raised by Tinklenberg, we will exclude the days those
motions were raised and resolved from the seventy day period, just as we would in the
case of any other pretrial motion.

         C.       Competency Evaluations

         The district court excluded from the Speedy Trial clock all of the days from
November 2, 2005 to March 23, 2006, and from March 29, 2006 to June 9, 2006,
because Tinklenberg’s two competency determinations were pending during those
periods. On appeal, Tinklenberg argues that 18 U.S.C. § 4247(b), which generally sets
the rules by which courts may commit defendants for psychiatric evaluations and limits
the period a defendant may be committed for evaluation to thirty days, should be applied
to limit the time excludable under the Speedy Trial Act to thirty days for Tinklenberg’s
competency evaluations. Pursuant to § 4247(b), “[f]or the purposes of an examination
pursuant to [a court] order, . . . the court may commit the person to be examined for a
reasonable period, but not to exceed thirty days[.]” However, this Court and “[e]very
court that has decided this issue ha[ve] concluded that § 4247(b) does not limit the time
period for a competency examination with respect to calculations under the Speedy Trial
Act.” United States v. Murphy, 241 F.3d 447, 456 (6th Cir. 2001). Accordingly,
Tinklenberg’s argument fails.


         1
           Tinklenberg’s motion for a new counsel and his counsel’s motion to withdraw did not have any
impact on the Speedy Trial clock because both were filed after Tinklenberg moved for an independent
competency evaluation on March 29, 2006, and were resolved on June 9, 2006, the same day as the court
ruled on the competency motion. The only other pretrial motions at issue are the three pretrial motions filed
in August 2006, during the two weeks prior to trial, but those motions do not create excludable time for
the reasons discussed in Section I.D below.
Nos. 06-2646; 08-1765                United States v. Tinklenberg                                   Page 9


         Of more substance is Tinklenberg’s argument that the Speedy Trial Act limits to
ten days the time excludable for the transportation of a defendant to and from the
location of his competency evaluation. Although 18 U.S.C. § 3161(h)(1)(A) appears to
exclude all time during which a defendant’s competency evaluation and determination
is pending, § 3161(h)(1)(F) provides that any delay caused by the transportation of a
defendant “to and from places of examination or hospitalization” that is longer than ten
days is “presumed to be unreasonable.” Whether the ten day limit in § 3161(h)(1)(F)
applies to the time in which a defendant is transported to a place of examination pursuant
to a court’s competency evaluation order appears to be a matter of first impression for
this Court.2 The few other appellate courts to have ruled on the issue are split: the First
and Fifth Circuits have held that an unreasonable delay in the transportation of the
defendant for a competency determination is not excludable, see United States v. Noone,
913 F.2d 20, 25-26 (1st Cir. 1990) and United States v. Castle, 906 F.2d 134, 137 (5th
Cir. 1990), while the Second Circuit has held that any delay associated with a
competency evaluation from the date of the order directing the evaluation until
completion of the competency hearing, including delay from transporting a defendant
for the evaluation, is excludable under § 3161(h)(1)(A), see United States v. Vasquez,
918 F.2d 329, 333 (2d Cir. 1990).

         We hold that a delay in transporting a defendant to a mental competency
examination beyond the ten day limit imposed by § 3161(h)(1)(F) is presumptively
unreasonable, and in the absence of rebutting evidence to explain the additional delay,
this extra time is not excludable. Reading § 3161(h)(1)(A) to allow unlimited time for
transporting a defendant to a place of examination, as the Second Circuit did in Vasquez,
would create an internal conflict in the statute, since § 3161(h)(1)(F) expressly limits


         2
           The government and the concurring opinion both cite Murphy, arguing that this Court has
already held that any delay in transporting a defendant for a mental competency examination is excludable,
notwithstanding the ten day limit imposed by § 3161(h)(1)(F). However, the Court in Murphy did not
address the interplay between § 3161(h)(1)(A) and § 3161(h)(1)(F), because the defendant’s failure to
submit any evidence of the duration of his transportation in support of his argument for a ten day limitation
allowed this Court to reject the defendant’s argument before reaching its merits. 241 F.3d at 455. After
rejecting the claim for lack of evidence, we stated, “[w]e also conclude that Defendant’s contention is
without merit.” Id. However, that statement was not necessary to the outcome, was not accompanied by
any interpretation of the statute, and was followed by a citation to Noone, whose interpretation of the
statutes we follow today. Id. at 455-56.
Nos. 06-2646; 08-1765                 United States v. Tinklenberg                                  Page 10


the reasonableness of the transportation period to ten days. See Noone, 913 F.2d at 25
n.5 (finding that allowing unlimited excluded time for transporting defendants to
competency evaluation “would render mere surplusage the specific reference in
[§ 3161(h)(1)(F)] to transportation ‘to and from places of examination or
hospitalization’”). The only way to avoid conflict between § 3161(h)(1)(A) and
§ 3161(h)(1)(F) is to read § 3161(h)(1)(F) as a specific exception to the general rule
announced in § 3161(h)(1)(A): i.e., all delays caused by proceedings to determine a
defendant’s competency are excluded, except for the time during which the defendant
is supposed to be in transit, which is presumptively unreasonable if longer than ten days.
See United Steelworkers of America, Local 2116 v. Cyclops Corp., 860 F.2d 189, 202
(6th Cir. 1988) (“[W]e are bound to construe statutes in such a way as to avoid internal
conflicts whenever possible[.]”).3

         On November 10, 2005, Tinklenberg was designated to the MCC in Chicago, but
did not arrive there until November 30, 2005. Under this Court’s precedent, weekends
and federal holidays are not included when calculating the ten day time period in which
the transportation delays are excluded. United States v. Bond, 956 F.2d 628, 632 (6th
Cir. 1992) (citing Federal Rule of Criminal Procedure 45(a)). Thus, although twenty
calendar days passed until Tinklenberg arrived at the MCC on November 30, 2005, only
two non-excludable days lapsed during that time: ten days were excludable under
§ 3161(h)(1)(F), six days were Saturdays or Sundays, and two days were federal
holidays. Accordingly, by the time Tinklenberg arrived at MCC in Chicago, two more
non-excludable days had lapsed, for a total of three non-excludable days to date.

         The period from November 30, 2005 until March 23, 2006, the day the magistrate
judge found Tinklenberg competent, was continuously excludable time, pursuant to
§ 3161(h)(1)(A). See Murphy, 241 F.3d at 456. The next five days were not excludable,
bringing the total number of non-excludable days to eight. On March 29, 2006,


         3
            The concurring opinion states that the phrase “to or from places of examination” in §
3161(h)(1)(F) “addresses more generally those situations in which a defendant may need to be transported
to the hospital for testing,” Concurring Op. at 19, but it is surely a leap to read “places of examination” to
exclude competency evaluations–the very type of “examination” that a defendant most typically undergoes
prior to trial.
Nos. 06-2646; 08-1765          United States v. Tinklenberg                       Page 11


excludable time began again, because Tinklenberg filed a motion for an independent
psychiatric evaluation on that day. See § 3161(h)(1)(A). On April 17, 2006, the
magistrate judge granted Tinklenberg’s motion and ordered the independent competency
evaluation. Time was therefore excludable until June 9, 2006, when the court again
found Tinklenberg competent. From June 10, 2006 through July 31, 2006, fifty-two non-
excludable days lapsed, bringing the total number of non-excludable days to sixty.

       D.      Motions That Do Not Delay Trial

       Between August 1, 2006 and August 14, 2006, the date of trial, three motions
were filed: on August 1, the government requested permission to conduct a video
deposition of a witness, and the court granted the motion on August 3; on August 8,
2006, the government filed a request to bring two guns into the courtroom during the
trial as evidence, a request the court granted on August 10, 2006; and on August 11,
2006, Tinklenberg moved to dismiss his indictment, with the district court denying the
motion on August 14, prior to the commencement of trial. All of these motions were
resolved without a hearing, and without any motion or order to delay the start of trial.
Yet in its calculations, the district court excluded from the Speedy Trial period the days
in which each motion was filed, pending and resolved.

       As previously noted, 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[]” is excluded from the seventy day Speedy Trial period. 18 U.S.C.
§ 3161(h)(1)(D). Thus, this Court has held that “[i]f a motion requires a hearing, the
entire time from the filing of the motion through the date of the hearing is excludable.”
United States v. Gardner, 488 F.3d 700, 717 (6th Cir. 2007).

       However, this Court has not addressed whether a pretrial motion that does not
delay trial, and does not have the potential to cause any such delay, is nevertheless
excludable. Every circuit to have addressed the issue appears to have held that the filing
of any pretrial motion stops the Speedy Trial clock, regardless of whether the motion has
any impact on the trial’s start date. See, e.g., United States v. Wilson, 835 F.2d 1440,
1443 (D.C. Cir. 1987); United States v. Hood, 469 F.3d 7, 10 (1st Cir. 2006); United
Nos. 06-2646; 08-1765          United States v. Tinklenberg                       Page 12


States v. Arbelaez, 7 F.3d 344, 347 (3d Cir. 1993); United States v. Dorlouis, 107 F.3d
248, 253-54 (4th Cir. 1997); United States v. Montoya, 827 F.2d 143, 151 (7th Cir.
1987); United States v. Titlbach, 339 F.3d 692, 698 (8th Cir. 2003); United States v. Vo,
413 F.3d 1010, 1015 (9th Cir. 2008); United States v. Vogl, 374 F.3d 976, 985 (10th Cir.
2004); United States v. Miles, 290 F.3d 1341, 1350 (11th Cir. 2002). Citing this
consensus, the government argues that nine days should be excluded in August as a
result of the three pretrial motions filed. We disagree, and hold that a pretrial motion
must actually cause a delay, or the expectation of a delay, of trial in order to create
excludable time.

       First, “the starting point in any case involving the meaning of a statute[] is the
language of the statute itself.” Group Life & Health Ins. Co. v. Royal Drug Co., 440
U.S. 205, 210 (1979). The statute provides that “[t]he following periods of delay shall
be excluded[,]” and then includes among the list of periods of delay “[a]ny period of
delay resulting from other proceedings concerning the defendant, including but not
limited to” eight different causes of “delay[.]” § 3161(h)(1) (emphasis added). One of
these excluded delays is “delay resulting from any pretrial motion[.]” § 3161(h)(1)(D)
(emphasis added). Thus, the statutory exclusion for pretrial motions contained in
§ 3161(h)(1)(D) and its two prefacatory clauses includes the word “delay” three different
times, and twice states that the delay must “result from” the pretrial motion. There is no
conceivable way to read this language other than to require a delay to result from any
pretrial motion before excludable time occurs. Most of the courts that have read this
delay requirement out of the statute have not examined the language of the statute
closely, although the Eleventh Circuit attempted to explain the statutory basis for its
interpretation as follows: “Although . . . [§ 3161(h)(1)(D)] reads ‘delay resulting from,’
the beginning of Section 3161(h) states that ‘[t]he following periods of delay shall be
excluded . . .’ The latter phrase clearly indicates that each period listed in Section
3161(h) automatically is a period of delay.” United States v. Stafford, 697 F.2d 1368,
1371 (11th Cir. 1983). While the Eleventh Circuit was correct that “each period listed
in Section 3161(h) automatically is a period of delay,” the court failed to recognize that
the “period” listed in § 3161(h)(1)(D) was not “any pretrial motion,” but rather, “delay
Nos. 06-2646; 08-1765          United States v. Tinklenberg                        Page 13


resulting from any pretrial motion[.]” In short, the argument set forth in Stafford simply
reads words out of the statute to reach its holding. See Bailey v. United States, 516 U.S.
137, 146 (1995) (noting that statutes are to be read so as to give each word a “particular,
nonsuperfluous meaning”).

        Because the statute is clear, examining the legislative history is unnecessary. See
Conn. Nat’l Bank v. Germain, 503 U.S. 249, 253-54 (1992) (“We have stated time and
again that courts must presume that a legislature says in a statute what it means and
means in a statute what it says there. When the words of a statute are unambiguous,
then, this first canon is also the last: judicial inquiry is complete.”) (quotations and
citations omitted). Nevertheless, it is noteworthy that the legislative history that our
sister circuits have cited to support reading the delay requirement out of the statute does
not actually support such a reading. Several of these courts have pointed to Congress’
rejection of a proposed amendment in 1979 that would have eliminated the automatic
exclusions of § 3161(h) in favor of giving judges the discretion to decide whether a
particular proceeding warranted excluding time. See, e.g., United States v. Novak, 715
F.2d 810, 813 (3d Cir. 1983); see also Stafford, 697 F.2d at 1371; Montoya, 827 F.2d at
151. Yet Congress’ rejection of judicial discretion in determining whether an exclusion
should apply was not a rejection of the entire delay requirement connected to pretrial
motions. Viewing Congress’ rejection of a proposed amendment to statutory language
as somehow showing an intent to move away from the plain meaning of the statute
would be nonsensical; if anything, Congress’ rejection of the amendment showed its
contentment with the plain language itself. Since Congress left the myriad references
to delay in the statute, its intent could only have been that where a pretrial motion or any
of the other proceedings listed in § 3161(h) causes delay, an exclusion of time is
automatic, regardless of the delay’s length or reason.

        Several courts have also cited the Supreme Court’s decision in Henderson v.
United States, 476 U.S. 321 (1986), as consistent with the proposition that all pretrial
motions trigger excluded time, regardless of whether they actually cause delay. See, e.g.,
United States v. Parker, 30 F.3d 542, 549 (4th Cir. 1994); Vogl, 374 F.3d at 985. Yet
Nos. 06-2646; 08-1765           United States v. Tinklenberg                        Page 14


Henderson held only that under the statute, the time between the filing of a motion and
the conclusion of the hearing on that motion is excluded “whether or not a delay in
holding that hearing is reasonably necessary.” 476 U.S. at 330. In other words, any
delay that occurs during the pendency of a pretrial motion, regardless of whether the
delay could have been avoided or was due to the court’s own inefficiency, is excluded.
Id. at 326-27. Henderson did not address whether time is excluded when no delay
occurs at all, and therefore, offers no support for the flawed consensus established by
other appellate courts.

        Thus, in the absence of any binding precedent to the contrary, this Court will
remain faithful to the statutory language and interpret 18 U.S.C. § 3161(h)(1)(D) as
excluding the time in which pretrial motions are filed and pending only if they could
possibly cause any delay of trial. None of the August 2006 motions caused any delay
of the trial, or even threatened to delay the trial. The trial began on August 14, 2006, the
date that had been scheduled before the three August motions were filed. Neither the
parties nor the district court expressed any intent to delay the trial in response to any of
these three motions. Upon the government’s filing of its motion on August 1, 2006 to
depose a witness by video, the court even ordered that “[t]he parties shall schedule said
deposition posthaste so as not to delay trial.” (ROA at 115.) In fact, the trial actually
began one day earlier than the August 15, 2006 trial date the court originally set at the
time of its second competency determination.

        Excluding time for mundane pretrial motions to allow a gun into the courtroom
as evidence and depose a witness by video would frustrate the purpose of the Speedy
Trial Act. In the days immediately prior to trial, a litany of evidentiary motions are filed;
there is no evidence that Congress intended to eliminate those days from Speedy Trial
Act calculations, or intended the government to be able to avoid its responsibility to
conduct a timely prosecution simply by filing a flurry of evidentiary motions before trial.
Tinklenberg’s motion to dismiss, filed on the last business day before trial, did not cause
or threaten to cause any delay either; the district court denied the motion the morning of
the trial, and the parties proceeded immediately into voir dire that morning. In light of
Nos. 06-2646; 08-1765                United States v. Tinklenberg                                Page 15


the obvious understanding of the parties and the court that the motions filed just before
trial would not affect the trial schedule, we will include all thirteen days in August prior
to trial in the Speedy Trial Act calculation.4

         Including these thirteen days, a total of seventy-three non-excludable days lapsed
prior to the start of Tinklenberg’s trial on August 14, 2006. The Speedy Trial Act was
therefore violated, and the district court’s denial of Tinklenberg’s motion to dismiss is
reversed.

II.      Disposition

         If a defendant is not tried within the required time limit, “the information or
indictment shall be dismissed on motion of the defendant.” 18 U.S.C. § 3162(a)(2).
“The Speedy Trial Act does not specify whether dismissal should be with or without
prejudice, nor does it contain a default presumption one way or the other.” United States
v. Robinson, 389 F.3d 582, 586 (6th Cir. 2004). However, the statute does mandate that,
“[i]n determining whether to dismiss the case with or without prejudice, the court shall
consider, among others, each of the following factors: the seriousness of the offense; the
facts and circumstances of the case which led to the dismissal; and the impact of a
reprosecution on the administration of this chapter and on the administration of justice.”
§ 3162(a)(2).

         An analysis of these factors leads us to conclude that Tinklenberg’s case should
be dismissed with prejudice. To be sure, the first two factors point to dismissal without
prejudice. This Court has previously held that one of Tinklenberg’s offenses, being a
felon in possession of a firearm, is a serious offense favoring dismissal without
prejudice. United States v. Carnes, 309 F.3d 950, 957 (6th Cir. 2002). There is no
evidence that the delay was due to any bad faith on the part of the government, and the
defendant’s trial began just three days after the seventy day Speedy Trial period expired.



         4
          The concurring opinion argues that Tinklenberg did not raise this issue before the district court
or on appeal. However, Tinklenberg unquestionably asked both this Court and the court below to count
the number of days that had lapsed for the purposes of the Speedy Trial Act; therefore, Tinklenberg
adequately preserved the overarching issue presented by this appeal.
Nos. 06-2646; 08-1765          United States v. Tinklenberg                       Page 16


See United States v. Howard, 218 F.3d 556, 561 (6th Cir. 2000) (finding that absence of
prosecutorial bad faith, or of evidence that prosecutor tried to take advantage of delay,
was factor supporting dismissal without prejudice); Carnes, 309 F.3d at 957 (exceeding
of seventy day limit by only eight days supported dismissal without prejudice).
However, a reprosecution in this case would nevertheless be contrary to the
administration of justice because Tinklenberg has already served the entirety of his
sentence, as well as his sentence for violating his supervised release, for which he should
have been released in July 2009 at the latest.

        “In cases where the district court fails to set forth any findings, the appropriate
remedy would ordinarily be a remand to the court with instructions to provide findings
that are adequate.” Robinson, 389 F.3d at 588. Yet “‘[w]hile the decision is generally
the trial court’s in the first instance, remand for a hearing is not required if the answer
is so clear that no purpose would be served by a remand.’” Id. (quoting United States
v. Pasquale, 25 F.3d 948, 952 (10th Cir. 1994)). This is just such a case. Because no
purpose would be served by retrying Tinklenberg for the offenses for which he has
already been punished in full, there is no reason to require the district court to hold a
hearing on the issue. We will therefore remand, but with instructions that the district
court dismiss the case with prejudice.

III.    Violation of Supervised Release

        Tinklenberg appeals the district court’s finding that he violated his supervised
release, and further appeals the reasonableness of his fourteen month sentence for the
violation. Because his case will be dismissed with prejudice, we dismiss these issues as
moot.

                                    CONCLUSION

        For the reasons set forth above, we REVERSE the district court’s denial of
Tinklenberg’s motion to dismiss, and REMAND with instructions that the district court
dismiss the indictment with prejudice. Tinklenberg’s appeals of the finding that he
violated his supervised release and his resulting sentence are DISMISSED as moot.
Nos. 06-2646; 08-1765          United States v. Tinklenberg                      Page 17


                              _________________________

                                   CONCURRENCE
                              _________________________

       JULIA SMITH GIBBONS, Circuit Judge, concurring. I agree that Jason
Tinklenberg’s trial violated the Speedy Trial Act and concur in all of the majority
opinion except for Part I.C. I write separately to clarify my views on several of the
difficult issues presented.

       First, I agree with the majority that the plain language of § 3161(h)(1)(D)
requires us to exclude from the Speedy Trial Act clock the day on which a motion is
filed. See 18 U.S.C. § 3161(h)(1)(D) (excluding “delay resulting from any pretrial
motion, from the filing of the motion” (emphasis added)). To the extent that our case
law on this point conflicts, the earlier in time disposition controls because a published
opinion of this court is binding on subsequent panels.           See United States v.
Mastromatteo, 538 F.3d 535, 545 (6th Cir. 2008). The earliest case I have located,
United States v. Richmond, 735 F.2d 208, 212 (6th Cir. 1984), held that the day on which
a motion is made is “automatically excludable.” Richmond is both consistent with the
statutory language and, absent any prior published opinion of this court to the contrary,
controlling. In light of Richmond, I concur in the majority’s conclusion that the day on
which a motion is filed is excludable.

       I disagree, however, with the majority’s conclusion regarding delays in
transportation time to and from a mental competency examination. The Speedy Trial
Act requires that a defendant be brought to trial within seventy days, see 18 U.S.C.
§ 3161(c)(1), subject to certain excludable periods. One such excludable period is any
period of “delay resulting from any proceeding, including any examinations, to
determine the mental competency . . . of the defendant.” 18 U.S.C. § 3161(h)(1)(A).
Consequently, all “time associated with mental competency examinations [is] excluded
from the Speedy Trial clock.” United States v. Murphy, 241 F.3d 447, 455-56 (6th Cir.
2001); see also Henderson v. United States, 476 U.S. 321, 327 (1986). Here, the period
from November 2, 2005, through March 23, 2006, was excludable pursuant to
Nos. 06-2646; 08-1765         United States v. Tinklenberg                      Page 18


§ 3161(h)(1)(A). Notwithstanding the plain language of § 3161(h)(1)(A), however, the
majority concludes that § 3161(h)(1)(F) limits the amount of excludable time spent in
transportation to a mental competency examination. (Maj. Op. at 9.) I respectfully
disagree. Section 3161(h)(1)(F) provides that any “delay [in excess of ten days]
resulting from transportation of any defendant from another district, or to and from
places of examination or hospitalization . . . shall be presumed to be unreasonable.” As
is clear from the language of § 3161(h)(1)(F), that provision does not speak to
competency proceedings. Rather, it addresses more generally those situations in which
a defendant may need to be transported to the hospital for testing. See, e.g., United
States v. Garrett, 45 F.3d 1135, 1137, 1139-40 (7th Cir. 1995) (defendant transported
to hospital for pulmonary testing). Section 3161(h)(1)(A), by contrast, provides a
specific exclusion for any time associated with mental competency proceedings. I see
no reason why the specific provision of § 3161(h)(1)(A) should be qualified by the more
general provision of § 3161(h)(1)(F). See Sprague v. Gen. Motors Corp., 133 F.3d 388,
405 (6th Cir. 1998). In fact, we reached the same conclusion in Murphy. See 241 F.3d
at 456; see also United States v. Vasquez, 918 F.2d 329, 333 (2d Cir. 1990). The
defendant in Murphy raised the same argument that Tinklenberg raises here, namely, that
“a total of ten days can count as excludable time for transportation ‘to and from’ the
place of examination and that any other delay is ‘presumed to be unreasonable.’”
Murphy, 241 F.3d at 455. We rejected this argument:

       We note that Defendant fails to point this Court to any evidence in the
       record demonstrating the dates upon which he was transported to and
       from the facility where the examination was conducted or the actual dates
       that Defendant was admitted or released from the facility. We also
       conclude that Defendant’s contention is without merit.
Id. (emphasis added). The majority insists, however, that we did not decide the question
in Murphy because “the defendant’s failure to submit any evidence of the duration of his
transportation in support of his argument for a ten-day limitation allowed this Court to
reject the defendant’s argument without reaching its merits.” (Maj. Op. at 9 n.2.) This
characterization of Murphy is refuted by the language quoted above.
Nos. 06-2646; 08-1765                United States v. Tinklenberg                                Page 19


         Based on the plain language of the Speedy Trial Act and our prior decision in
Murphy, I would find all time associated with Tinklenberg’s mental competency
examination, including transportation time, excludable pursuant to § 3161(h)(1)(A).
Tinklenberg entered his initial appearance on October 31, 2005. One day elapsed before
Tinklenberg filed a motion for a psychological evaluation to determine his competency
to stand trial on November 2, 2005. The district court granted the motion and ordered
psychological testing. After receiving a written evaluation and holding a competency
hearing, the court found Tinklenberg to be competent in an order dated March 23, 2006.1
Five days elapsed between the court’s finding of competency on March 23, 2006, and
March 29, 2006, when Tinklenberg filed a motion for an independent psychological
examination. The court granted Tinklenberg’s motion, received the second written
evaluation on June 9, 2006, and made a second finding of competency. Sixty-five
additional days elapsed between June 9, 2006, and the start of Tinklenberg’s trial on
August 14, 2006. By my calculations, a total of seventy-one nonexcludable days elapsed
between October 31, 2005, and August 14, 2006–one day beyond what the Speedy Trial
Act allows. See 18 U.S.C. § 3161(c)(1).

         As to motions that do not delay the start of trial, several prudential considerations
would prevent me from reaching the issue. First, it appears to be waived. Tinklenberg
has not raised it in his appellate brief, a fact that ordinarily precludes our review. See
Carter v. Univ. of Toledo, 349 F.3d 269, 272 (6th Cir. 2003) . Nor did he raise it in his
August 11, 2006, Speedy Trial Act motion to the district court. See Molina-Crespo v.
U.S. Merit Sys. Prot. Bd., 547 F.3d 651, 662 (6th Cir. 2008). To the contrary, in his
motion for reconsideration in the district court, Tinklenberg apparently accepted the
proposition that certain days in August of 2006 were properly excluded pursuant to
§ 3161(h)(1)(D) although they did not delay trial. Second, I would not penalize the


         1
           Although not dispositive in this case, I note that the court actually concluded that Tinklenberg
was competent at the hearing held on the previous day. We have held, albeit in an unpublished disposition,
that the § 3161(h)(1)(A) proceeding to determine the mental competency of the defendant is complete
“when, after a competency hearing[,] the court declare[s the defendant] competent to stand trial.” United
States v. Moore, 961 F.2d 1579 (table), 1992 WL 92740, at *5 (6th Cir. 1992) (per curiam). That is, the
day on which the court makes a finding of competency, rather than the day on which the written order of
competency is docketed, should control the Speedy Trial Act clock. Here, the difference of one day does
not affect my conclusion that the Speedy Trial Act was violated.
Nos. 06-2646; 08-1765          United States v. Tinklenberg                        Page 20


government and the district court for acting, in the absence of any controlling authority,
upon the quite reasonable assumption that our circuit would align with the others to have
considered the issue in finding those days to be excludable. Nevertheless, because the
majority reaches the issue, I note my agreement with the majority’s reading of
§ 3161(h)(1)(D) as a matter of statutory interpretation. After today, district courts
should not exclude from the Speedy Trial clock days that are consumed by motion
practice but that do not cause actual delay.

        I agree, therefore, that the Speedy Trial Act was violated. Whether Tinklenberg’s
indictment should be dismissed with or without prejudice presents a closer question. As
the majority acknowledges, several of the statutory factors point toward dismissal
without prejudice. See 18 U.S.C. § 3162(a)(2). There is no suggestion of improper
behavior on anyone’s part. Rather, “the district court’s error in this case was a good-
faith misinterpretation of the Speedy Trial Act’s requirements that resulted in a relatively
short delay of the trial.” See United States v. Howard, 218 F.3d 556, 561 (6th Cir.
2000). Neither the government nor the district court could have been expected to
anticipate our disagreement with the other ten circuits to have considered the
§ 3161(h)(1)(D) issue. Moreover, a dismissal with prejudice may have a negative impact
on the administration of justice, see § 3162`(a)(2), in that the instant offense will be
erased from Tinklenberg’s record. Should Tinklenberg be prosecuted again in the future,
his record will not reflect the true extent of his criminal history. Despite these concerns,
I agree that retrying Tinklenberg would be a poor use of government resources and serve
no worthwhile purpose. I therefore join the majority in finding that dismissal with
prejudice is warranted.
