                            UNITED STATES of America, Plaintiff-Appellee,

                                                     v.
                          Wade Anthony DRUMMOND, Defendant-Appellant.

                                               No. 00-10768

                                         Non-Argument Calendar.

                                      United States Court of Appeals,
                                             Eleventh Circuit.

                                               Feb. 8, 2001.
Appeal from the United States District Court for the Southern District of Florida. (No. 99-00568-CR-DMM),
Donald M. Middlebrooks, Judge.

Before EDMONDSON, HULL and FAY, Circuit Judges.

         PER CURIAM:
         Wade Anthony Drummond ("Drummond") appeals a conviction and 77-month sentence imposed for
his attempt to re-enter the United States after deportation in violation of 8 U.S.C. § 1326(a) and (b)(2).

Drummond argues that the district court erred when it denied his motion to dismiss the indictment on speedy
trial grounds and when it applied a 16-level sentencing enhancement based on the finding that Drummond
was previously convicted of an aggravated felony.

         In considering the district court's determination that Drummond's speedy trial rights were not

violated, we review factual findings for clear error and conclusions of law de novo. United States v. Taylor,

487 U.S. 326, 337, 108 S.Ct. 2413, 101 L.Ed.2d 297 (1988). We review the applicability of the U.S.S.G. §

2L1.2(b)(1)(A) aggravated felony enhancement de novo. United States v. Fuentes-Barahona, 111 F.3d 651,

652 (9th Cir.1997). Issues of constitutional law are subject to plenary review. United States v. Lawson, 809

F.2d 1514, 1517 (11th Cir.1987). Upon review of the record and the parties' briefs, we find no reversible

error.
         Drummond is a native and citizen of Jamaica who was deported from the United States on September

24, 1998. On December 11, 1998, he attempted to re-enter the United States by presenting a revoked resident

alien card at the Miami International Airport. He was detained by the Immigration and Naturalization Service
("INS") at that time and transported to the Krome Detention Center in Miami, Florida. Almost two months

later, on February 4, 1999, a criminal complaint was filed and a warrant issued for Drummond's arrest on

charges of illegal re-entry into the country after deportation. Drummond was then indicted on February 9,
1999, on a single charge of attempted re-entry into the United States following deportation, in violation of

8 U.S.C. § 1326(a) and (b)(2).
        Drummond filed a motion to dismiss the indictment, arguing that the United States had violated his

speedy trial rights under 18 U.S.C. § 3161, et seq., by not indicting him within thirty days of his arrest and

detention by INS officials. The United States did not oppose the motion, and the district court dismissed the

indictment on August 3, 1999.1 The United States re-indicted Drummond on the identical charge nine days
later, and he filed a second motion to dismiss on speedy trial grounds. The district court denied the motion,
finding that his arrest by immigration officials was an administrative or civil detention that did not implicate

the Speedy Trial Act.

        After a bench trial, Drummond was convicted of violating 8 U.S.C. § 1326(a) and (b)(2). At his
sentencing, the district court imposed a 16-level enhancement on Drummond's offense level based on a
finding that a prior conviction in New York state court for menacing qualified as an aggravated felony as

defined in 8 U.S.C. § 1101(a)(43). Drummond appeals both the district court's denial of his motion to dismiss
indictment on speedy trial grounds and the 16-level sentencing enhancement.
         Drummond argues on appeal that the district court's determination that his detention at Krome was

an "administrative hold" that did not trigger the running of the speedy trial clock was contrary to the law.

Under the Speedy Trial Act, 18 U.S.C. § 3161, et seq., federal authorities must indict an incarcerated

individual within 30 days of his arrest in connection with the offenses specified in the indictment.2 More than
30 days elapsed from the time Drummond was initially detained to the time he was indicted. Drummond

contends that because he was arrested and detained by INS officials for the identical reason for which he was
later indicted, i.e., for illegally re-entering the United States after deportation, the thirty-day requirement in


    1
     Although the Order dismissing the indictment against Drummond did not specifically state whether
the dismissal was with or without prejudice, it appears that the indictment was dismissed based on the
government's agreement that it be dismissed without prejudice. The Order of dismissal provided that the
government had "no objection to the court granting the motion without prejudice." Moreover, the district
court, in its subsequent Order denying Drummond's motion to dismiss the second indictment, stated that
the factors outlined in 18 U.S.C. § 3162(a)(1) weighed in favor of a finding that the first indictment was
dismissed without prejudice. Drummond has not challenged this finding on appeal.
    2
     The Act provides in relevant part, that:

                 Any ... indictment charging an individual with the commission of an offense shall be filed
                 within thirty days from the date on which such individual was arrested or served with a
                 summons in connection with such charges.

        18 U.S.C. § 3161(b).
the Speedy Trial Act runs from the date of his INS arrest and detention. We are not persuaded.

        We recently considered and rejected similar arguments in United States v. Noel, 231 F.3d 833 (11th

Cir.2000). In Noel, the defendant/appellant was taken into custody by the INS after illegally reentering the

United States following deportation. More than thirty days elapsed from the time of his initial detention

before a federal grand jury returned an indictment against the defendant charging him with illegally reentering
the country in violation of 8 U.S.C. § 1326(a). The defendant moved to dismiss the indictment on speedy

trial grounds, arguing that he was "arrested" for speedy trial purposes on the date he was detained by the INS.
The district court rejected his argument and we affirmed.

        In rejecting the defendant's arguments, we determined as a matter of first impression in this Circuit

that INS detentions preceding deportation are civil in nature and do not trigger rights under the Speedy Trial
Act.3 As such, the time period for the Speedy Trial Act begins to run only "after an individual is 'accused,'

either by an arrest and charge or by an indictment." Id. Because the defendant in Noel had not been charged

with violating 8 U.S.C. § 1326(a) at the time of his INS detention, the detention itself did not trigger the

running of the Speedy Trial Act. Id. (citing United States v. Reme, 738 F.2d 1156, 1162 (11th

Cir.1984)(although defendant was detained by INS on October 21, the Speedy Trial Act was not triggered

until the following July when defendant was served with a warrant issued pursuant to the indictment)). See

also United States v. Cepeda-Luna, 989 F.2d 353, 355-56 (9th Cir.1993)(Speedy Trial Act's 30-day

requirement does not apply when initial detention was civil in nature and federal criminal charges were not
filed at the time of the INS detention).

         Similarly, in the instant case, Drummond was not charged with violating 8 U.S.C. § 1326(a) and

(b)(2) at the time of his initial detention by the INS. Rather, INS officials took him into custody to await
deportation proceedings. Because the detention was civil in nature and federal criminal charges were not filed

at that time, we cannot apply the 30-day requirement of the Speedy Trial Act from the moment Drummond

was civilly arrested on December 11, 1998. It was only after Drummond was arrested in connection with the



    3
     The language of the Speedy Trial Act also compels the conclusion that its provisions were not
intended to apply to INS detentions. The text of the statute specifically provides that the Act's 30-day
requirement applies to indictments issued in connection with the offense for which a defendant was
arrested. 18 U.S.C. § 3162(b). The Act further defines "offense" as any federal criminal offense. 18
U.S.C. § 3161(b). An arrest and detention pursuant to a deportation proceeding is not an arrest for a
federal criminal offense; rather it is a purely civil action to determine eligibility to remain in this country,
even though the act of entering and remaining unlawfully in this country is itself a federal offense. INS v.
Lopez-Mendoza, 468 U.S. 1032, 1038, 104 S.Ct. 3479, 82 L.Ed.2d 778 (1984).
criminal charge for which he was actually indicted that the time limits of the Speedy Trial Act were triggered.

Accordingly, there is no violation of the Speedy Trial Act.
         We have recognized a limited exception to the rule that INS detentions are civil in nature and do not

trigger the Speedy Trial Act. While routine INS detentions incident to deportation will not trigger the Speedy

Trial Act, a contrary result may be warranted when deportations are used by the government as "mere ruses

to detain a defendant for later criminal prosecution." Noel, 231 F.3d at 836; Cepeda-Luna, 989 F.2d at 357.

To invoke this exception, however, we have placed the burden on the detainee to establish that the "primary

or exclusive purpose of the civil detention was to hold him for future prosecution." See Noel, 231 F.3d at

836. Drummond has produced no evidence in this action to demonstrate that his civil detention was a ruse
to hold him for later prosecution or that the detention served any purpose other than to facilitate his

deportation.

        We turn now to Drummond's argument that the district court erred by applying a 16-level
enhancement to his offense level based on the court's finding that Drummond was previously convicted of

an aggravated felony.     Section 2L1.2(b)(1)(A) of the Sentencing Guidelines allows for a 16-level
enhancement when a defendant who unlawfully enters the United States has previously been deported after
being convicted of an aggravated felony. The application notes for this provision adopt the definition of

"aggravated felony" provided at 8 U.S.C. § 1101(a)(43), which includes "crime of violence ... for which the
term of imprisonment [sic] at least one year...."

        According to the PSI, Drummond had a prior conviction in a New York state court for menacing, a
Class A misdemeanor with a maximum of one year's imprisonment under New York law, for which he was
actually sentenced to one year of imprisonment. Based on his prior conviction for menacing, the district court

enhanced Drummond's base offense level in accordance with 2L1.2(b)(1)(A).
         Although Drummond argues that it is unclear whether his prior conviction for menacing falls within

the statutory definition of aggravated felony, i.e., a crime of violence for which the term of imprisonment is

at least one year, we have little trouble in so concluding. "Crimes of violence" include offenses that have as

an element the use, attempted use, or threatened use of physical force against the person or property or
another. 18 U.S.C. § 16. A person is guilty of menacing under New York law when he intentionally places

or attempts to place another in fear of physical injury, serious injury, or death by displaying a deadly weapon
or instrument. N.Y. STAT. § 120.14.4 The undisputed facts underlying Drummond's menacing conviction are

as follows:
        On May 28, 1997, the defendant attempted to throw his wife off a second floor balcony. On May
        29, 1997, the defendant again threatened to do harm to his wife and children. According to the police
        report, on July 9, 1997, the defendant held a firearm to his girlfriend's head and threatened to kill her
        and the kids if she opened the door and called police.

         We are convinced that Drummond's prior conviction for menacing clearly satisfies the "crime of
violence" component of the definition of aggravated felony. Moreover, we have held that for purposes of §

2L1.2(b)(1)(A), the length of the sentence actually imposed determines whether crimes of violence constitute

aggravated felonies. United States v. Maldonado-Ramirez, 216 F.3d 940, 944 (11th Cir.2000); United States

v. Guzman-Bera, 216 F.3d 1019, 1020 (11th Cir.2000). Because Drummond was sentenced to a year

imprisonment, the New York conviction for menacing qualified as an aggravated felony, and the district court
did not err in applying the 16-level sentencing enhancement.

        AFFIRMED.




    4
    Specifically, New York Penal Law Section 120.14 provides that a person is guilty of menacing
when:

                1. He or she intentionally places or attempts to place another person in reasonable fear of
                physical injury, serious physical injury or death by displaying a deadly weapon,
                dangerous instrument or what appears to be a pistol, revolver, rifle, shotgun, machine gun
                or other firearm; or
                2. He or she repeatedly follows a person or engages in a course of conduct or repeatedly
                commits acts over a period of time intentionally placing or attempting to place another
                person in reasonable fear of physical injury, serious physical injury, or death;

                3. He or she commits the crime of menacing in the third degree in violation of that part of
                a duly served order of protection, or such order which the defendant has actual
                knowledge of because he or she was present in court when such order was issued,
                pursuant to article eight of the family court act, section 530.12 of the criminal procedure
                law, or an order of protection issued by a court of competent jurisdiction in another state,
                territorial or tribal jurisdiction; which directed the respondent to stay away from the
                person or persons on whose behalf the order was issued.
