          United States Court of Appeals
                       For the First Circuit


No. 15-1334

                           UNITED STATES,

                             Appellee,

                                 v.

                          YAHYAA IBRAHIM,

                       Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF MASSACHUSETTS

              [Hon. Mark L. Wolf, U.S. District Judge]


                               Before

                       Lynch, Circuit Judge,
                    Souter, Associate Justice,*
                     and Selya, Circuit Judge.


     Judith H. Mizner, Assistant Federal Public Defender, with
whom Federal Public Defender Office was on brief, for appellant.
     Jennifer A. Serafyn, Assistant United States Attorney, with
whom Carmen M. Ortiz, United States Attorney, was on brief, for
appellee.


                         February 18, 2016




     * Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
           SOUTER, Associate Justice.          Yahyaa Ibrahim was indicted

for failure to register as a sex offender, and he filed two motions

to   dismiss     the     indictment.         The   first    challenged   the

constitutionality of the registration requirement.           No hearing was

requested and none was held for 344 days, until after the second

motion requested dismissal of the charges for violation of the

speedy trial requirement.         After a hearing, each was denied, and

he pleaded guilty, though subject to the right to appeal the

denials of his motions.         We affirm.

                                       I

           On June 4, 2013, Ibrahim was indicted for failure to

register as a sex offender under the Sex Offender Registration and

Notification Act (SORNA), 42 U.S.C. § 16913, in violation of 18

U.S.C. § 2250.    On January 7, 2014 he sought leave of the district

court to file an oversized brief on the ground that his forthcoming

motion to dismiss the indictment raised complex issues.                  His

request was granted, and, on January 9, he filed the brief, which

claimed   that   SORNA    was    unconstitutional    (the   SORNA   motion).

Specifically, he contended that Congress both exceeded its Article

I authority by enacting SORNA and violated the nondelegation

doctrine by giving the Attorney General power to determine SORNA's

applicability to pre-enactment offenders.           The first paragraph of

the SORNA motion acknowledged that all of its arguments had been




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rejected by panels of this court and were raised only to preserve

them for further review.

          The Government's opposition brief, filed on February 5,

agreed that Ibrahim's arguments were foreclosed by this court's

precedents.   On February 7, the magistrate judge issued a status

report, noting that, under the Speedy Trial Act (STA), 18 U.S.C.

§ 3161, seventy days remained for the case to be tried.

          On December 5, Ibrahim filed a second dismissal motion,

this one asserting a violation of the STA on the ground that 270

days of unexcluded time had elapsed (the STA motion).1         The

Government filed its opposition on December 16.

          At a December 19 hearing, the district court denied both

the SORNA motion and the STA motion. On February 13, 2015, Ibrahim

entered a conditional guilty plea, reserving his right to appeal

the denials of both motions.   He was sentenced to time served and

five years' supervised release.

                                  II

          The district court denied the SORNA motion because it

agreed with the parties that Ibrahim's constitutional challenges

had been directly rejected by panels of this court.    As Ibrahim




     1  On Ibrahim's view, detailed below, the SORNA motion
occasioned a maximum of thirty excludable days, running from the
February 7 status report until Sunday, March 9. Between Monday,
March 10 and the December 5 filing of the STA motion, 270 days
elapsed.


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says in his brief here, "he recognize[s] that panels of this

[c]ourt have rejected these arguments . . . and presents them here

because he believes those cases were wrongly decided and seeks to

preserve the issues for possible en banc review or review by the

Supreme Court."

           By reference to our controlling precedents, we summarily

affirm   the   district     court's   rejection     of   the   constitutional

challenges to the statute.         See United States v. Whitlow, 714 F.3d

41, 44 (1st Cir. 2013) (collecting our cases rejecting arguments

that, in SORNA, Congress exceeded its Article I authority and

violated the nondelegation doctrine).

                                      III

           "This circuit reviews a denial of a statutory speedy

trial claim de novo as to legal rulings, and for clear error as to

factual findings."    United States v. Carpenter, 781 F.3d 599, 616

(1st Cir. 2015). The STA requires that a defendant be tried within

seventy days of the later of the indictment or initial appearance.

See 18 U.S.C. § 3161(c)(1).             In computing the seventy days,

however,   §   3161(h)(1)(D)2      excludes     "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."


     2 What is now subparagraph (D) was formerly subparagraph (F),
as reflected in some of the cases cited herein.


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           Here, on December 19, 2014, the district court held a

hearing on Ibrahim's SORNA motion.           The time that by then had

elapsed since January 9, when Ibrahim filed the SORNA motion, was

excluded for purposes of the STA, and with this 344-day exclusion

there was no STA violation.3    Ibrahim responds with two arguments.

The first is that the statutory exclusion applies only when a

hearing is required, and that his SORNA motion required none.

Alternatively, he says that what transpired in court on December

19 was not really a hearing on the SORNA motion.       Neither argument

is persuasive.

                                    A

           Assuming that the § 3161(h)(1)(D) exclusion is limited

to   instances   where   hearings   are   required,   we   reiterate   the

established principle that a district court's determination of

need for a particular hearing deserves substantial deference.          In

United States v. Salimonu, 182 F.3d 63, 67-68 (1st Cir. 1999),

after a hiatus of some two-and-half years between the filing of a

motion and a hearing, the appellant contended that the trial court

erred in determining that a hearing was required.           The district

court had specifically found that the motion was of a type for




      3While we will explain that the delay between filing and
hearing the SORNA motion is excludable as a matter of STA law, it
is regrettable as a matter of judicial docket management. Better
district court practice would have set a hearing more
expeditiously.


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which, in its view, hearings should be held and had noted its

regular practice of holding hearings on them.     Id.    "This is a

sufficient indication," we held, "that a hearing was required."

Id.   "[T]he district court is in a better position to determine

the necessity of a hearing than we are."   Id.

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

we reaffirmed our deference to the district court's determination

of necessity.    There, we accepted the exclusion of pre-hearing

time "[e]ven though it took the court eight months to state on the

record," just before the filing of an STA motion, its decision

that the previously filed motion to sever required a hearing.   Id.

at 39.   "Our conclusion," we stressed, "is consistent with . . .

our reluctance to impugn the district court's regular, justified

practices."   Id.

          Our deferential position is not eccentric.    "[A]ppellate

courts generally have been reluctant to question the judgment of

a district court that a hearing is required."     United States v.

Dunn, 345 F.3d 1285, 1294 (11th Cir. 2003) (footnote omitted)

(citing, inter alia, United States v. Tannehill, 49 F.3d 1049,

1052 n.4 (5th Cir. 1995)); see also United States v. Smith, 569

F.3d 1209, 1213 (10th Cir. 2009) ("Even if the motions were weak

on the merits . . . there was no abuse of discretion in the trial

court's decision to have a hearing on them. . . .         Perhaps a

hearing on [the] motions was not strictly speaking necessary to


                                 - 6 -
resolve them, but we will not second-guess the trial court's

decision to hold one.").     Nor should these decisions engender

skepticism, for they rest on both permissible construction of the

statute, see Maxwell, 351 F.3d at 38, and sound concern for

practicality.   More searching appellate enquiry into the necessity

of particular hearings would prove difficult and inevitably time

consuming to administer: so much depends on the specific motion

and the specific needs of the parties and district judge.

          In brief, "we are loath to question the court's judgment

in this area absent obvious subterfuge."     Salimonu, 182 F.3d at

68.   This "obvious subterfuge" limitation on our deference is

shorthand for our stated refusal to "permit either the district

court or the prosecution to jerry-build a 'hearing' in order to

thwart the concinnous operation of the Speedy Trial Act."   Id. at

68 n.1 (quoting United States v. Staula, 80 F.3d 596, 602 n.3 (1st

Cir. 1996)); see also Maxwell, 351 F.3d at 39 (same).    But we do

not see that here.     The district court noted that "[i]t is my

regular practice to have hearings on motions to dismiss in criminal

cases, and, if possible, decide them orally and then schedule

either a trial or a plea."   And the advisability of departing from

standard practice did not appear compelling; Ibrahim, after all,

represented to the trial court that the SORNA motion presented

complex issues requiring an oversized brief.     So we cannot say

that the district court engaged in obvious subterfuge, and we defer


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to its determination that a hearing on the SORNA motion was

required.

                                             B

                 Ibrahim also argues that while the December 19, 2014

court session aired his STA motion, it did not function as a

hearing on the SORNA motion; and without a hearing on the SORNA

motion to trigger § 3161(h)(1)(D)'s time-exclusion, the motion

could,      at     most,   have    deserved       §   3161(h)(1)(H)'s   thirty-day

exclusion.          See    18   U.S.C.   §   3161(h)(1)(H)     (excluding   "delay

reasonably attributable to any period, not to exceed thirty days,

during which any proceeding concerning the defendant is actually

under advisement by the court").4                Excluding only thirty days would

not, of course, render Ibrahim's proceedings compliant with the

STA.

                 The STA does not define the word "hearing."            But we have

understood it capaciously as "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. Barnes, 159 F.3d 4, 12 (1st Cir. 1998) (quoting Staula, 80 F.3d

at 602).      A hearing is "marked by oral argument, factual findings,

or legal rulings."          Id.




       4   What is now subparagraph (H) was formerly subparagraph (J).


                                             - 8 -
           Here,   the   district   court   began   the   on-the-record

colloquy by saying, "We're here in connection with the hearing I

scheduled on the two motions to dismiss, one on constitutional

grounds, one on Speedy Trial Act grounds.       They're intertwined."

It went on to say, "I'm prepared to hear about the merits of both

the motions and explain why, even though you acknowledge the First

Circuit has decided your constitutional issues, I really would

have had a hearing in any event, and I'll explain it in detail."

During defense counsel's remarks on the STA motion, the court

repeated, "I want to give you a chance to address the merits of

your underlying motion," and later asked defense counsel, "Is there

any more you'd like to say on the underlying constitutional

motion?"   Counsel responded that she hoped her oversized brief was

sufficient, but reported that she had researched the case law in

advance of the hearing and confirmed that the state of the law as

represented in her brief had not changed.

           Turning to the other side, the district court heard from

the Government on the SORNA motion when the prosecutor explained

that "no one disputes that these [constitutional] issues have been

decided by the First Circuit."      Finally, the district court, on

the record, ruled, "The motion to dismiss based on constitutional

grounds is hereby denied."

           In sum, the December 19 event included an "on-the-record

colloquy" in which the district court invited any further arguments


                                    - 9 -
of counsel for consideration before deciding the pending SORNA

motion by issuing a "legal ruling[]."    Id.   Contrary to Ibrahim's

protests, the character of the event was not qualitatively altered

simply because the Government was not asked any direct questions

about the SORNA motion, or because the district court indicated

that, had it not been burdened by STA constraints, it might have

made a written disposition of the constitutional issues.5

                                IV

          The judgment of the district court is AFFIRMED.




     5 Although the district court denied the STA motion, it stated
that, if it were to grant the motion, it would do so without
prejudice to reprosecution. Because we affirm the denial of the
motion, we need not reach Ibrahim's claim that a grant should have
been with prejudice.


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