                          PRECEDENTIAL
  UNITED STATES COURT OF APPEALS
       FOR THE THIRD CIRCUIT
            _____________

                No. 12-2688
               _____________

      UNITED STATES OF AMERICA

                      v.

               LEE GRAVES,
              a/k/a Rasul el-bey

               LEE GRAVES,
                             Appellant
              _______________

On Appeal from the United States District Court
   for the Eastern District of Pennsylvania
           (D.C. No. 11-cr-119-001)
  District Judge: Hon. Lawrence F. Stengel
              _______________

  Submitted Under Third Circuit LAR 34.1(a)
               May 31, 2013
  Before: JORDAN and VANASKIE, Circuit Judges, and
            RAKOFF*, Senior District Judge.

                   (Filed: June 21, 2013)
                     _______________

Michael N. Huff
1333 Race Street
Philadelphia, PA 19107
      Counsel for Appellant

Zane D. Memeger
Robert Zauzmer
Andrew J. Schell
Office of United States Attorney
615 Chestnut Street – Ste. 1250
Philadelphia, PA 19106
      Counsel for Appellee
                      _______________

                OPINION OF THE COURT
                    _______________

JORDAN, Circuit Judge.

       Lee Graves appeals the judgment of conviction and
sentence imposed by the United States District Court for the

_______________
       * Honorable Jed S. Rakoff, United States District Court
Senior Judge for the Southern District of New York, sitting by
designation.




                              2
Eastern District of Pennsylvania on May 31, 2012. He
contends that his conviction must be reversed because his
rights under the Speedy Trial Act, 18 U.S.C. §§ 3161 et seq.,
were violated. As there was no such violation, we will
affirm.

I.    Background

       On March 2, 2011, a grand jury returned an indictment
charging Graves with one count of attempted possession of
500 grams or more of cocaine with intent to distribute, in
violation of 21 U.S.C. § 841(a)(1), (b)(1)(B)(ii) and 21 U.S.C.
§ 846. He was arraigned on March 31, 2011, at which time
the presiding magistrate judge decided that Graves should be
evaluated to see whether he was competent to stand trial. The
following day, the District Court entered an order instructing
the Bureau of Prisons to conduct a psychiatric examination
and mental competency evaluation of Graves, pursuant to 18
U.S.C. § 4241(b). That evaluation was still pending on
June 3, 2011, three days before Graves’s trial was scheduled
to occur. The District Court therefore issued an order
continuing the case until the filing of the competency report.

       On June 22, 2011, the Bureau of Prisons completed the
report, which concluded that Graves was competent to stand
trial. The report was mailed to the magistrate judge with a
cover letter dated June 28, 2011, and it was apparently
received on July 7, 2011.1 On September 21, 2011, the

      1
          Graves claims that the report was received by the
magistrate judge on July 11, 2011. Although the District
Court mentioned that date during the hearing on Graves’s




                              3
District Court held a status hearing, during which it reviewed
the report and ruled that Graves was competent to stand trial.
It also appointed defense counsel, who immediately moved
for a continuance to allow adequate time to prepare for trial.
On September 26, 2011, the Court granted that motion and set
Graves’s trial date for February 27, 2012.

         Only weeks after seeking the continuance, however,
Graves moved on October 21, 2011, to dismiss the
indictment.      He claimed that more than 70 days of
inexcusable delay had passed since the filing of the
indictment, which he argued violated his rights under the
Speedy Trial Act, 18 U.S.C. § 3161 et seq., the Speedy Trial
Clause of the Sixth Amendment, and the Due Process Clause
of the Fifth Amendment. The District Court held a hearing
on the motion and concluded that the time between March 31,
2011, when the competency evaluation was ordered, and
September 21, 2011, when the competency determination was
made, was excluded from the speedy trial calculation. It
further held that the time after the September 21 hearing was
also excluded due to defense counsel’s request for a
continuance. The Court therefore found that Graves’s speedy
trial rights had not been violated.

       Graves’s trial began as scheduled on February 27,
2012. He was convicted and sentenced to 120 months in
prison and eight years of supervised release. He then filed
this appeal.

Speedy Trial Act motion, it also mentioned July 7, and, when
Graves’s counsel asked for clarification, the Court repeated
that the report was received on July 7. The reference to July
11 appears to have merely been a misstatement.




                              4
II.    Discussion2

        The Speedy Trial Act (the “Act”) requires that, in a
case in which a plea of not guilty is entered, a defendant’s
trial must begin within 70 days of the public filing of the
indictment or the defendant’s appearance before a judicial
officer of the court, whichever is later.            18 U.S.C.
§ 3161(c)(1). The Act also provides for the exclusion of
certain periods of delay from the 70-day calculation. Id.
§ 3161(h). Most relevant here, it excludes the “delay
resulting from any proceeding, including any examinations, to
determine the mental competency or physical capacity of the
defendant.” Id. § 3161(h)(1)(A). The Act also excludes the
“delay resulting from any pretrial motion,” id.
§ 3161(h)(1)(D), and up to 30 days of delay when “any
proceeding concerning the defendant is actually under
advisement by the court,” id. § 3161(h)(1)(H). Finally, the
Act excludes periods of delay “resulting from a continuance
granted by any judge,” as long as the judge has found “that
the ends of justice” served by the continuance “outweigh the
best interest of the public and the defendant in a speedy trial.”
Id. § 3161(h)(7)(A). We have held that “the days on which
[excludable] events occurred” are not included “in making the
70-day calculation.” Gov’t of V.I. v. Duberry, 923 F.2d 317,
320 n.8 (3d Cir. 1991).

       2
         The District Court had jurisdiction under 18 U.S.C.
§ 3231, and we have jurisdiction pursuant to 18 U.S.C.
§ 3742(a) and 28 U.S.C. § 1291. “[W]e exercise plenary
review over [a] district court’s construction of the [Speedy
Trial] Act and its provisions on excludable time,” and we
review its factual findings for clear error. United States v.
Lattany, 982 F.2d 866, 870 (3d Cir. 1992).




                               5
       Graves’s sole argument on appeal is that the District
Court erred in concluding that fewer than the 70 days
permitted by the Speedy Trial Act passed between the filing
of the indictment and his trial.3 He concedes that the
March 31, 2011 request for a competency determination
began a period of excludable delay, but he argues that that
period ended on June 22, 2011, when the Bureau of Prisons
completed the competency report. He thus identifies 118
days of inexcusable delay – 29 that lapsed between his
indictment and the March 31 arraignment, and another 89 that
passed between the completion of the competency report and
the September 21 hearing, at which his counsel’s request for a
continuance prompted another period of excludable delay.4
Because that delay is greater than the 70 days permitted by
the Speedy Trial Act, Graves argues that the District Court
should have dismissed the indictment. The government
disagrees, contending that the District Court was correct to
conclude that the period of excludable delay for Graves’s
competency determination continued until the September 21
status hearing, when the Court considered the report and

       3
         Graves has effectively abandoned his claims under
the Fifth and Sixth Amendments, as he does not mention
them in his brief on appeal.
       4
          That calculation is not entirely accurate. Only 28
days of non-excludable time passed between the March 2
indictment and the March 31 arraignment, as neither of those
dates should be included in the total. Duberry, 923 F.2d at
320 n.8. Ninety days, however, passed between June 22 and
September 21, meaning that the total of 118 days would in
fact be correct, if Graves were correct about what is and is not
excludable.




                               6
made its competency ruling. The question before us is
therefore whether a “delay resulting from” a competency
proceeding extends until a hearing addressing the defendant’s
competence is held, or just until the completion of a
competency report. This issue appears to be one of first
impression for us.

        To resolve the issue, we turn first to the language of
the Speedy Trial Act, which excludes the “delay resulting
from any proceeding, including any examinations, to
determine the mental competency or physical capacity of the
defendant.” 18 U.S.C. § 3161(h)(1)(A). By making clear that
the time spent examining the defendant is included in the
delay attributed more generally to a competency proceeding,
that provision indicates that such a proceeding involves more
than just the competency examination itself. Furthermore, the
use of the term “proceeding” suggests judicial involvement,
not solely the collection of evidence. See Black’s Law
Dictionary 1241 (8th ed. 2004) (defining “proceeding” as,
inter alia, “[t]he business conducted by a court or other
official body; a hearing”). The plain language of the Act
therefore indicates that the excludable delay under
§ 3161(h)(1)(A) continues beyond the completion of the
Bureau of Prisons competency report, which, important
though it is, is only one step in determining a defendant’s
competence to stand trial.

       That conclusion is consistent with 18 U.S.C. § 4241,
the statute regarding competency determinations. Section
4241 “provides a mandatory process” that is “intended to
culminate in a record-based judicial determination of
competence.” United States v. Haywood, 155 F.3d 674, 680
(3d Cir. 1998). The prescribed process imposes a duty on the




                              7
court to order a competency hearing whenever “there is
reasonable cause to believe that the defendant” is mentally
incompetent, id. (quoting 18 U.S.C. § 4241(a)), as the
magistrate judge apparently found to be the case here. The
court may then order a psychiatric examination of the
defendant in order to “provide evidence for the hearing.” Id.;
see also 18 U.S.C. § 4241(b) (“Prior to the date of the
hearing, the court may order that a psychiatric or
psychological examination of the defendant be conducted …
.”). After the hearing, the court must determine whether, by
a preponderance of the evidence, “the defendant is presently
suffering from a mental disease or defect rendering him
mentally incompetent” to proceed to trial. Id. § 4241(d).
Section 4241 thus suggests that a hearing is a vital part of a
“proceeding … to determine the mental competency” of the
defendant. Id. § 3161(h)(1)(A).

       The Speedy Trial Act does not limit the amount of
time that may be spent on a competency proceeding. In fact,
it provides that “[a]ny period of delay” for a competency
proceeding “shall be excluded” from the 70-day calculation.
Id. § 3161(h)(1). That broad language is in contrast with the
language in a different subsection of the Act, § 3161(h)(6),
which provides for the exclusion of a “reasonable period of
delay when the defendant is joined for trial with a
codefendant as to whom the time for trial has not run … .”
The reasonableness requirement in subsection (h)(6) is absent
from most of the other excludable delay provisions,5 and the

      5
           The other provisions that expressly include a
reasonableness requirement are subsection (h)(1)(F), which
provides that “any time consumed in excess of ten days” due
to transportation of the defendant is “presumed to be




                              8
Supreme Court in Henderson v. United States has taken that
absence as an indication that Congress intended the exclusion
of the periods defined in those other provisions to be
“automatic.” 476 U.S. 321, 327 (1986) (internal quotation
marks omitted). Thus, when it turns out that a hearing is
necessary to resolve a pretrial motion, the entire period before
the hearing is excluded from the Speedy Trial Act calculation,
regardless of whether the delay was reasonable. Id. at 329-
30.     Although in Henderson the Supreme Court was
considering the particular exclusion for “delay resulting from
any pretrial motion,” 18 U.S.C. § 3161(h)(1)(D), the language
in the exclusion for competency proceedings is equally broad,
see id. § 3161(h)(1)(A). Therefore, the Court’s reasoning is
persuasive here as well, and it suggests that all delays
attributable to a competency proceeding, reasonable or not,
are excluded from the 70-day calculation.

        Based on that precedent and on the statutory language
itself, we conclude that the period of excludable delay under
§ 3161(h)(1)(A) begins when a party moves for, or the court
sua sponte orders, a competency determination.            The
excluded time continues at least until a competency hearing is
held, which occurred here on the same date that the District
Court rendered its competency determination.6 In other

unreasonable,” and subsection (h)(1)(H), which excludes
delays “reasonably attributable to any period, not to exceed
thirty days, during which any proceeding concerning the
defendant is actually under advisement by the court.”
       6
        Because the District Court made its competency
determination at the hearing, we need not resolve the question
of when a post-hearing delay may also be excluded. We note,
however, that in Henderson the Supreme Court held that




                               9
words, the period between a request for a competency


§ 3161(h)(1)(D) “excludes time after a hearing has been held
where a district court awaits additional filings from the parties
that are needed for proper disposition of the motion.” 476
U.S. at 331 (interpreting § 3161(h)(1)(F), which is now
codified at § 3161(h)(1)(D)). The Court explained that “[i]t
would not have been sensible for Congress to exclude
automatically all the time prior to the hearing on a motion and
30 days after the motion is taken under advisement, but not
the time during which the court remains unable to rule
because it is awaiting the submission by counsel of additional
materials.” Id. Thus, at a minimum, the delay due to a
competency determination would likely remain excluded
from the Speedy Trial calculation until the district court has
received all papers and evidence needed to make that
determination. The extent to which it extends beyond that
point depends on whether § 3161(h)(1)(H) limits the amount
of time a court can have the issue of competency under its
advisement. That is an issue of statutory interpretation we
need not reach here.
       We also need not, and do not, resolve the issue of
whether an unreasonable delay in the transportation of a
defendant to a competency examination is excludable. That
issue has arisen in other cases due to § 3161(h)(1)(F). See,
e.g., United States v. Tinklenberg, 579 F.3d 589, 596 (6th Cir.
2009) (considering whether a delay in transporting a
defendant to a mental competency examination beyond the
ten day limit is excludable). That provision is not at issue
here, and thus we do not reach the question of what impact it
may have on delays for competency proceedings under
§ 3161(h)(1)(A).




                               10
examination and a hearing addressing that issue is clearly part
of the “delay resulting from any proceeding … to determine
the mental competency or physical capacity of the
defendant,” and therefore is “excluded … in computing the
time within which the trial … must commence.” Id.
§ 3161(h)(1)(A); see also United States v. Tinklenberg, 579
F.3d 589, 596 (6th Cir. 2009) (“[A]ll 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.”); United States v.
Stephens, 489 F.3d 647, 653 (5th Cir. 2007) (“[T]he district
court correctly concluded that [the defendant’s] motion for a
competency evaluation stopped the clock from the date it was
filed … through the date the court ruled that [he] was
competent to stand trial … .”); United States v. Noone, 913
F.2d 20, 25-26 (1st Cir. 1990) (excluding the “entire period”
from when the motion to determine competency was filed
through the date of the competency ruling, other than an
unreasonable delay in transporting the defendant to the
competency examination); United States v. Vasquez, 918 F.2d
329, 333 (2d Cir. 1990) (“Since the delays here complained
of by [the defendant] arose from proceedings to determine his
competency and were prior to the conclusion of the hearing
thereon, they must be excluded from the calculation of the
speedy trial clock whether or not they are reasonable.”).7

      7
            Only the Eighth Circuit has held differently,
calculating the time excluded as 30 days from the district
court’s receipt of the competency report. United States v.
Jones, 23 F.3d 1307, 1310 (8th Cir. 1994). The court based
that holding on its conclusion that “the trial court had the
discretion to hold or to forgo” a competency hearing. Id. at




                              11
       The District Court utilized the approach we now
endorse, and we therefore can discern no error in its
interpretation and application of the Speedy Trial Act. As all
parties agree, the time between the indictment and the
arraignment is not excluded under the Act. Accordingly, 28
of the 70 permitted days had passed before the magistrate
judge ordered a competency examination on March 31, 2011.
That order began a period of excludable “delay resulting from
[a] proceeding … to determine the mental competency … of
the defendant,” 18 U.S.C. § 3161(h)(1)(A), which continued
until the September 21, 2011 hearing, at which the District
Court considered the evidence of competency and rendered a
decision. Although that decision ended the competency
proceeding, and thus terminated that particular period of
excludable delay, a new period immediately began because
Graves’s counsel requested a continuance, which the Court
found served the ends of justice.            See 18 U.S.C.
§ 3161(h)(7)(A). Therefore, only the initial 28 days counted
toward the speedy trial calculation. As that period is well
within the 70 days provided by the Speedy Trial Act, the

1309. That conclusion relied on a previous version of the
competency statute, id., which required a hearing only if a
competency examination “indicates a state of present insanity
or … mental incompetency in the accused,” see United States
v. Pogany, 465 F.2d 72, 74 n.1 (3d Cir. 1972) (quoting the
prior version of the statute, then codified at 18 U.S.C. § 4244)
(internal quotation marks omitted). As discussed above, we
have held that the current version provides for a “mandatory
process” that involves a hearing in all instances in which
competency is at issue. Haywood, 155 F.3d at 680.
Accordingly, we decline to follow the approach adopted in
Jones.




                              12
District Court rightly held that Graves’s rights under the Act
were not violated.

IV.   Conclusion

       Because Graves’s trial began within the time allotted
under the Speedy Trial Act, the District Court did not err in
denying his motion to dismiss the indictment. Accordingly,
we will affirm.




                             13
