                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 06-4332



UNITED STATES OF AMERICA,

                                                Plaintiff - Appellee,

           versus


EDMOND J. FAISON, JR.,

                                               Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Walter D. Kelley, Jr., District
Judge. (2:04-cr-00182-WDK)


Argued:   November 29, 2006                 Decided:   October 4, 2007


Before NIEMEYER and MOTZ, Circuit Judges, and WIDENER,* Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


ARGUED:    Larry Mark Dash, Assistant Federal Public Defender,
OFFICE OF THE FEDERAL PUBLIC DEFENDER, Norfolk, Virginia, for
Appellant.    Joseph L. Kosky, Special Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Norfolk, Virginia,
for Appellee. ON BRIEF: Michael S. Nachmanoff, Acting Federal
Public Defender, Sapna Mirchandani, Research and Writing Attorney,


     *
      Judge Widener heard oral argument in this case but died prior
to the time the decision was filed. The decision is filed by a
quorum of the panel. 28 U.S.C. § 46(d).
OFFICE OF THE FEDERAL PUBLIC DEFENDER, Norfolk, Virginia, for
Appellant. Chuck Rosenberg, United States Attorney, Alexandria,
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

     Edmond Faison was indicted in two counts for violating

Virginia’s    motor   vehicle   laws   in   the   special   maritime   and

territorial jurisdiction of the United States, in violation of 18

U.S.C. § 13 (the assimilation statute).       Count I charged him with

driving a motor vehicle after having been declared a habitual

offender, in violation of Virginia Code Ann. § 46.2-301, and Count

II charged him with driving a motor vehicle with a suspended

license, in violation of Virginia Code Ann. § 42.2-357(B)(3).

After a bench trial, the district court found Faison guilty and

sentenced him to 30 months’ imprisonment on Count I and 12 months’

imprisonment on Count II, to run concurrently.

     On appeal, Faison challenges the district court’s denial of

his motion to dismiss based on his claim that the road on which he

was driving within the special territorial jurisdiction of the

United States was not a Virginia “highway,” as required by the

substantive Virginia offenses, and the denial of his motion to

dismiss based on his claim that he was denied his rights under the

Speedy Trial Act, 18 U.S.C. § 3161.

     Following United States v. Hill, 473 F.3d 112 (4th Cir.

2007), we conclude that the road in question was a Virginia

“highway.”    Also, because 18 U.S.C. § 3161(h)(1)(F) excludes for

purposes of the Speedy Trial Act time between the filing of a

pretrial motion and the hearing on it, we conclude that Faison’s


                                  -3-
right to a speedy trial was not infringed.               Accordingly, we

affirm.


                                    I

     Faison contends first that the district court erred in

finding that the access road to Naval Amphibious Base Little Creek

in Virginia Beach, Virginia, is a “highway” under Virginia law

because “the Installation Commander has exclusive authority over

the property and exercised that authority to restrict public

access    to   the   property.”    He    argues   that   because   of   the

Installation Commander’s control, the road on which he was driving

was not “open to the use of the public for purposes of vehicular

traffic in the Commonwealth,” as a “highway” is defined in the

Virginia Code.       See Va. Code Ann. § 46.2-100.

     The relevant facts are not disputed.            On March 22, 2004,

Faison turned from Shore Drive in Virginia Beach onto Nider

Boulevard, which is located entirely on the United States Naval

Amphibious Base Little Creek.      After driving about 200 yards down

Nider Boulevard, Faison came to Gate 4, which guarded access to

the base.       A security officer at Gate 4 requested Faison’s

driver’s license and registration, but Faison could only produce

a Virginia state identification card. The officer then discovered

that Faison’s driver’s license had been revoked and that Faison

had been classified as a habitual offender under Virginia law.

Faison was indicted in two counts for violating Virginia’s motor

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vehicle laws in the special territorial jurisdiction of the United

States, in violation of 18 U.S.C. § 13, which assimilates Virginia

law, and he was arrested pursuant to a warrant on March 17, 2005.

     Faison filed a motion to dismiss his indictment, arguing that

he was not on a Virginia “highway,” a fact required by both

counts.   The district court denied his motion.

     Faison now contends that the district court erred and that

Nider Boulevard is not a “highway” because it was not sufficiently

open to the public to be considered a highway under Virginia law.

His argument, however, is foreclosed by our recent decision in

United States v. Hill, 473 F.3d 112 (4th Cir. 2007).    In Hill, the

defendant drove down the very stretch of road that Faison drove

down -- the 200 yards of Nider Boulevard between Shore Drive and

Gate 4 of the naval base in Virginia Beach, see 473 F.3d at 113-14

-- and raised the very same argument that Faison now raises --

that this stretch of road was not a “highway” for purposes of the

charged offenses. We rejected Hill’s argument, finding that there

were “no restrictions on vehicular public use” of the road at the

time of his conduct.   Hill, 473 F.3d at 116.     Because Faison was

likewise able to traverse Nider Boulevard without confronting

barriers or any other impediments at the time of the offense, we

follow Hill and conclude that the road in question was a Virginia

“highway.”   Accordingly, we reject Faison’s first argument.




                               -5-
                                    II

     Faison also contends that the district court erred in denying

his motion to dismiss based on a violation of his rights to a

trial within 70 days, as provided by the Speedy Trial Act, 18

U.S.C. § 3161.   By his calculation, there was a 126-day lapse of

time on the “speedy trial clock” between his initial appearance in

March 2005 and trial in December 2005, which violated his right to

a trial within 70 days.     The government argues that most of the

time between April 2005 and December 2005 is excludable because

during that time the court considered Faison’s motion to dismiss

based on his Virginia-“highway” argument.

     The factual circumstances giving rise to the differences

between the parties are again undisputed. Faison filed his motion

to dismiss on April 20, 2005, and on May 17, 2005, the district

court conducted an evidentiary hearing, following which it orally

granted Faison’s motion, subject to a written disposition.             On

June 14, 2005, while the matter was yet pending with the district

court,   the   government   filed    a    motion   for   reconsideration.

Thereafter, the government filed three supplemental briefs with

the court, one on July 7, a second on July 27, and a third on

October 28.    The court reheard the motion on November 18, 2005,

and resolved it on November 22, 2005, reversing itself and denying

Faison’s motion to dismiss.    The case then proceeded to trial on

December 5, 2005.


                                    -6-
      Faison’s        argument   is    based     on   the   contention   that    the

district court had 30 days following the government’s filing of

the motion for reconsideration to resolve it, and if it did not

resolve it within 30 days, the speedy trial clock resumed running.

See   18   U.S.C.      §   3161(h)(1)(J).         While     Faison    relies   on   §

3161(h)(1)(J), we conclude that the relevant provision is §

3161(h)(1)(F), which excludes a period of 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.”        Thus, when a motion that requires a hearing is filed, §

3161(h)(1)(F) excludes from the Speedy Trial Act calculation “all

time between the filing of a motion and a conclusion of a hearing

on that motion, whether or not a delay in holding that hearing is

‘reasonably necessary.’”              Henderson v. United States, 476 U.S.

321, 330 (1986); see also United States v. Bush, 404 F.3d 263, 273

(4th Cir. 2005) (following Henderson).

      In the present case, it is clear that the government’s motion

to reconsider required a hearing prior to the court’s disposition.

In the opinion denying Faison’s Speedy Trial Act motion, the

district court noted that it “believed a hearing [on the “highway”

issue]     to    be   necessary,”     as   “the   question     of    whether   Nider

Boulevard is a ‘highway’ under the laws of Virginia has been a

difficult question for this Court to answer.”                        In fact, the

district court maintained in its decision that it “would have


                                           -7-
scheduled oral argument on the motion for reconsideration had the

parties not addressed the issue at the pre-trial release violation

hearing.”    In view of the court’s own observations about the

necessity of a hearing, we “defer[] . . . to the district court’s

conclusion that the reconsideration motions were of the type that

required a hearing and [] absent ‘obvious subterfuge’ by the

district court, ‘we are loath to question the Court’s judgment.’”

United States v. Maxwell, 351 F.3d 35, 39 (1st Cir. 2003) (quoting

United States v. Salimonu, 182 F.3d 63, 67 (1st Cir. 1999)); see

also United States v. Dunn, 345 F.3d 1285, 1294 (11th Cir. 2003)

(“[A]ppellate courts generally have been reluctant to question the

judgment of a district court that a hearing is required”).

     Furthermore, there can be no question that a hearing on the

government’s motion for reconsideration actually occurred for

purposes of § 3161(h)(1)(F).     Even though the initial purpose for

the hearing on November 18, 2005 was Faison’s bond violation, the

motion for reconsideration was raised by Faison’s counsel at the

outset of the hearing and was argued by both parties for the

duration.   While the hearing was not originally scheduled for the

resolution of the government’s motion for reconsideration, the

legal question raised by that motion and the three supplemental

briefs   dominated   the   proceedings   to   such   an   extent   that   it

unquestionably resulted in a hearing on the motion.            Cf. United

States v. Staula, 80 F.3d 596, 602 (1st Cir. 1996) (“We hold that


                                  -8-
a hearing is any on-the-record colloquy in which the district

court hears the arguments of counsel and considers those arguments

prior to deciding a pending motion”); United States v. Tannehill,

49 F.3d 1049, 1053 (5th Cir. 1995), (“‘hearing’ . . . includes a

situation . . . in which the district court hears the argument of,

and questions, counsel for the party against whom the ruling on

the motion is made”).

     Accordingly, the period of time between the government’s

filing of its motion to reconsider on June 14, 2005, and the

related   hearing   on   November   18,   2005,   is   excluded   from   the

calculation under the Speedy Trial Act.       Additionally, the period

after that hearing and before the court’s decision granting the

motion to reconsider on November 22, 2005, is excluded under §

3161(h)(1)(J).      See Henderson, 476 U.S. at 331.           With these

determinations, Faison’s speedy trial clock ran far less than the

70-days maximum period established by the Speedy Trial Act.

     For the reasons given, the judgment of the district court is



                                                                  AFFIRMED.




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