NOT PRECEDENTIAL

    UNITED STATES COURT OF APPEALS
         FOR THE THIRD CIRCUIT
              _____________

                  No. 10-2036
                  ___________

        UNITED STATES OF AMERICA


                        v.

            RAY DEAN COLBURN,
                       Appellant



                ______________

     Appeal from United States District Court
      for the Middle District of Pennsylvania
              (No. 4-06-cr-00428-002)
 District Court Judge: Honorable John E. Jones III

                   __________

  Submitted Under Third Circuit L.A.R. 34.1(a)
             November 15, 2010
                ___________

Before: AMBRO, FISHER, GARTH, Circuit Judges.
        (Opinion Filed: November 16, 2010)


                  ___________

                   OPINION
                  ___________




                        1
GARTH, Circuit Judge:

          Appellant Ray Dean Colburn (“Colburn”) appeals from the District Court’s denial

of his motion to dismiss the indictment, and from the District Court’s sentence. Colburn

argues that the indictment against him should have been dismissed under Federal Rule of

Criminal Procedure 5, or alternatively pursuant to the Fifth Amendment’s Due Process

clause, based on delay. Colburn further argues that the District Court erred in classifying

him as a “Career Offender” under the Sentencing Guidelines, U.S.S.G. § 4B1.1. We will

affirm.

                                                         I.

          We write exclusively for the parties, who are familiar with the factual context and

legal history of this case. Therefore, we set forth only those facts necessary to our

analysis.

          On December 14, 2006, the United States filed an Indictment against Colburn

charging him and others with conspiracy to distribute a controlled substance. An arrest

warrant for Colburn was issued. On December 27, 2006, Colburn reported to his

probation office in Wilkes-Barre Pennsylvania, Luzerne County.1 A state probation

officer took Colburn into custody, and he was detained on a federal warrant in the

Luzerne County Correctional Facility. On January 16, 2007, Colburn appeared before a

federal magistrate judge, was assigned counsel, and entered a not guilty plea.



1
   The government contends that, prior to this date, Colburn attempted to hide from authorities, and for this reason
investigators called Colburn’s Luzerne County probation officer.

                                                          2
       Between December 27, 2006 and January 16, 2007, no statements were taken from

Colburn, nor were any interviews conducted. Colburn first met with investigators on

January 30, 2007, with his court-appointed counsel present. On July 16, 2007, Colburn

withdrew his not guilty plea and pled guilty. Thereafter, he filed two motions to

withdraw his guilty plea. Subsequently, he filed a motion to withdraw his motion to

withdraw his guilty plea.

       In May 2009, Colburn filed a Motion to Dismiss the Indictment based on alleged

prejudicial delay between his arrest and initial appearance. On July 22, 2009, the District

Court denied his motion to dismiss.

       The Presentence Report prepared for Colburn listed several prior adult criminal

convictions and classified him as a “Career Offender” pursuant to the Sentencing

Guidelines. On October 29, 2009, Colburn filed a memorandum in which he objected to

the probation officer’s recommendation to classify him as a Career Offender. In a

December 16, 2009 Memorandum and Order, the District Court rejected Colburn’s

arguments and found that he was a Career Offender under the Guidelines. The court

determined that two separate “Possession with Intent to Deliver/Distribute Marijuana”

offenses both counted as predicate offenses for career offender status. On March 29,

2010, the District Court sentenced Colburn to 120 months’ incarceration.

                                            II.

       The District Court had subject matter jurisdiction pursuant to 18 U.S.C. § 3231.

This Court has appellate jurisdiction pursuant to 28 U.S.C. §1291 and 18 U.S.C.

§3742(a).

                                             3
       The District Court’s construction of Federal Rule of Criminal Procedure 5(a) is

subject to plenary review, and its factual determinations are reviewed for clear error.

United States v. Dyer, 

, 467 (3d Cir. 2003). In considering a challenge to a

district court's sentencing decision, this Court engages in two levels of review. “First, we

must ensure that the district court did not commit a significant procedural error in

arriving at its decision, such as failing to calculate (or improperly calculating) the

Guidelines range . . . Second, if we determine that there has not been a significant

procedural error, we review the ultimate sentence imposed to determine if it was

substantively reasonable under an abuse of discretion standard.” United States v. Brown,

, 526 (3d Cir. 2010) (internal citations and quotation marks omitted).

                                             III.

A. Federal Rule of Criminal Procedure 5(a) and Fifth Amendment Due Process claims

       Federal Rule of Criminal Procedure 5(a)(1)(A) states: “A person making an arrest

within the United States must take the defendant without unnecessary delay before a

magistrate judge, or before a state or local judicial officer as Rule 5(c) provides, unless a

statute provides otherwise.” Colburn contends that government authorities violated this

Rule because he was held in custody for 21 days before being brought before a magistrate

judge, and that such violation warrants dismissal of the indictment against him. He

argues alternatively that this delay violated his Fifth Amendment right to due process.

       Colburn’s arguments fails for the following reasons. First, the remedy for a

violation of Rule 5 is suppression of evidence produced or “statements taken during the

period of unnecessary delay,” not dismissal of the indictment. 

n.2

                                              4
(citing Govt. of the Virgin Islands v. Gereau, 

, 923 n.5 (3d Cir. 1974)).

Because no statements or evidence were taken during the period of delay, Colburn would

not be entitled to a remedy.

       Second, Colburn has not demonstrated a violation of Rule 5(a) or of the Fifth

Amendment Due Process clause. The United States has not engaged in conduct that

violated “fundamental fairness” or shocked a “universal sense of justice.” See United

States v. Russell, 

, 432 (1973). Colburn contends that the 21 days he was

kept in jail before seeing a Magistrate Judge constituted “outrageous conduct” by the

United States. There is no authority to support this statement. Colburn’s allegations of a

Rule 5 or Fifth Amendment Due Process violation fail as a matter of law.

       Additionally, Colburn waived this issue by pleading guilty, thereby foreclosing

our review. Abram v. United States, 

, 350 (3d Cir. 1968) (guilty plea

constitutes waiver of all nonjurisdictional defects and defenses); United States v. Bentz,

, 39 n.2 (3d Cir. 1994) (declining to decide whether a guilty plea waives

jurisdictional in addition to nonjurisdictional defects).

B. Career Offender status

       Under the Guidelines, a “defendant is a career offender if (1) the defendant was at

least eighteen years old at the time the defendant committed the instant offense of

conviction; (2) the instant offense of conviction is a felony that is either a crime of

violence or a controlled substance offense; and (3) the defendant has at least two prior

felony convictions of either a crime of violence or a controlled substance offense.”

U.S.S.G. § 4B1.1.

                                              5
       Colburn disputes that he meets the third criteria. He argues initially that he does

not have two applicable prior felony convictions because the two prior felony convictions

upon which the District Court relied should have been counted as only one prior offense.

Second, he argues that even if the two offenses are counted separately, the first offense is

not an applicable prior offense under the Guidelines due to a combination of the date on

which the offense occurred and the length and type of sentence.

       Colburn argues that the offense he committed in 1991 and the offense he

committed in 1995 should be counted as one offense. The Guidelines provide that

“[p]rior sentences always are counted separately if the sentences were imposed for

offenses that were separated by an intervening arrest (i.e., the defendant is arrested for the

first offense prior to committing the second offense).” U.S.S.G. § 4A1.2(a)(2). Colburn

pled guilty in 1991 to his first offense, which involved possession with intent to deliver

marijuana. He pled guilty four years later to another similar offense. He therefore was

convicted on two separate occasions for two different felony drug offenses, and

sentenced on two different dates. There is no merit to Colburn’s argument that these two

offenses should be counted as one offense.

       Next, Colburn contends that the first felony offense should not be counted as a

predicate offense because it occurred in 1991, more than ten years before the present

indictment dated December 2006, and the original sentence was five years of probation

and no term of imprisonment.

       However, U.S.S.G. § 4A1.2(e) provides a fifteen year, not a ten year period:

              (e) Applicable Time Period

                                              6
             (1) Any prior sentence of imprisonment exceeding one year and one month
             that was imposed within fifteen years of the defendant's commencement of
             the instant offense is counted. Also count any prior sentence of
             imprisonment exceeding one year and one month, whenever imposed, that
             resulted in the defendant being incarcerated during any part of such fifteen-
             year period.

             (2) Any other prior sentence that was imposed within ten years of the
             defendant's commencement of the instant offense is counted.

      Colburn argues that his sentence does not fit into section (e)(1) because it was not

a term of imprisonment exceeding one year and one month; thus, it falls under (e)(2), a

ten year period applies, and since he was sentenced more than ten years before the instant

offense, the 1991 offense cannot be counted.

      However, as the District Court correctly pointed out, because Colburn’s sentence

was accelerated to five years imprisonment in 1995 and his probation revoked in 1996,

the 1991 offense falls under section (e)(1). U.S.S.G. §4A1.2(k) states:

             (k) Revocations of Probation, Parole, Mandatory Release, or Supervised
             Release

             (1) In the case of a prior revocation of probation, parole, supervised release,
             special parole, or mandatory release, add the original term of imprisonment
             to any term of imprisonment imposed upon revocation. The resulting total
             is used to compute the criminal history points for § 4A1.1(a), (b), or (c), as
             applicable.

             (2) (B) Revocation of probation, parole, supervised release, special parole,
             or mandatory release may affect the time period under which certain
             sentences are counted as provided in § 4A1.2(d)(2) and (e). For the
             purposes of determining the applicable time period, use the following: (i) in
             the case of an adult term of imprisonment totaling more than one year and
             one month, the date of last release from incarceration on such sentence (see
             § 4A1.2(e)(1)); (ii) in the case of any other confinement sentence for an
             offense committed prior to the defendant's eighteenth birthday, the date of
             the defendant's last release from confinement on such sentence (see §

                                            7
              4A1.2(d)(2)(A)); and (iii) in any other case, the date of the original
              sentence (see § 4A1.2(d)(2)(B) and (e)(2)).

       Further:

              Section 4A1.2(k) covers revocations of probation and other
              conditional sentences where the original term of
              imprisonment imposed, if any, did not exceed one year and
              one month. Rather than count the original sentence and the
              resentence after revocation as separate sentences, the sentence
              given upon revocation should be added to the original
              sentence of imprisonment, if any, and the total should be
              counted as if it were one sentence.

U.S.S.G. §4A1.2(k), cmt. n.11. Thus, because Colburn’s probation was revoked and he

was sentenced to a term of imprisonment longer than one year and one month, his 1991

offense fell under section (e)(1) of U.S.S.G. § 4A1.2(e) and the 15 year time period

applies.

       Colburn’s probation was revoked for the 1991 offense in 1996, and he was

released from prison in 2000 or 2001. Further, the alleged conduct for the instant offense

was alleged to have occurred beginning in January 2004, and Colburn was indicted in

2006. Thus the sentence for the first offense was imposed within 15 years of the

commencement of the instant offense, and it resulted in Colburn being incarcerated

within 15 years of the instant offense. Accordingly, the first offense serves as a predicate

offense for purposes of the career offender classification.

       Colburn’s argument that the first offense should not have been counted fails, and

he has made no objection to counting the second offense.

       The District Court did not err in overruling Colburn’s objections to his

classification as a career offender.

                                             8
                                     IV.

For the foregoing reasons, we will affirm the sentence of the District Court.




                                      9