NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 12a1080n.06

                                          No. 11-4395
                                                                                      FILED
                          UNITED STATES COURT OF APPEALS                           Oct 17, 2012
                               FOR THE SIXTH CIRCUIT                         DEBORAH S. HUNT, Clerk


UNITED STATES OF AMERICA,                           )
                                                    )
       Plaintiff-Appellee,                          )      ON APPEAL FROM THE
                                                    )      UNITED STATES DISTRICT
v.                                                  )      COURT FOR THE NORTHERN
                                                    )      DISTRICT OF OHIO
JUAN EDUARDO MEDINA-ESPINOZA,                       )
                                                    )
       Defendant-Appellant.                         )



        BEFORE: BATCHELDER, Chief Judge; GIBBONS, Circuit Judge; ROSENTHAL,
District Judge.*


       PER CURIAM. Juan Eduardo Medina-Espinoza, a federal prisoner, appeals his conviction

of re-entry after removal following a conviction of an aggravated felony.

       Medina-Espinoza made an initial appearance on the above charge before a magistrate judge

on April 20, 2011. The indictment was issued on May 11. Medina-Espinoza entered a plea of not

guilty at the arraignment on May 26. On June 17, the case was referred to a magistrate judge for a

change of plea. On June 28, a superseding indictment was issued. On August 9, Medina-Espinoza

moved to dismiss the indictment, alleging a violation of the Speedy Trial Act, 18 U.S.C. § 3161.

Medina-Espinoza argued that more than seventy days had passed since the original indictment. The

government responded, arguing that the speedy trial period commenced on the date of the

       *
        The Honorable Lee H. Rosenthal, United States District Judge for the Southern District
of Texas, sitting by designation.
No. 11-4395
United States v. Medina-Espinoza

arraignment rather than the date of the indictment and that ten days were excluded between

June 17 and June 28 while the court considered a potential plea agreement. Medina-Espinoza filed

a reply to the government’s response, countering both arguments. The district court denied the

motion, concluding without explanation that the speedy trial period commenced on the date of the

arraignment and finding the ten days during which the plea agreement was under consideration

excludable. Medina-Espinoza later entered into an agreement to plead guilty, preserving his right

to appeal the denial of his motion to dismiss the indictment. He was sentenced to twenty-seven

months of imprisonment. On appeal, he reasserts the arguments raised below and also argues that

the speedy trial period commenced on the date of his initial appearance before the magistrate judge.

         Initially, we note that Medina-Espinoza did not argue before the district court that the speedy

trial period commenced on the date of his original appearance, and we therefore will not review that

claim. See United States v. Wright, 

, 867 (6th Cir. 2003). Moreover, the argument is

clearly without merit, as 18 U.S.C. § 3161(c)(1) provides that the trial shall commence within

seventy days from the indictment or the defendant’s initial appearance, whichever occurs last. The

indictment was issued after the initial appearance in this case.

         The district court also properly excluded the time during which it was considering a possible

plea agreement. See 18 U.S.C. § 3161(h)(1)(G); United States v. Rector, 

, 472 (8th Cir.

2010).

         However, we conclude that the district court erred in stating, without explanation, that the

speedy trial period commenced on the date of the arraignment rather than the earlier date of the

indictment. The government cites United States v. O’Dell, 

, 360-62 (6th Cir. 1998),

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No. 11-4395
United States v. Medina-Espinoza

for the proposition that the speedy trial clock does not commence until the defendant enters a not

guilty plea at the arraignment on an indictment. However, that case actually stands for the

proposition that the Speedy Trial Act does not apply in a case where no plea of not guilty is entered.

See United States v. Tinklenberg, 

, 594 (6th Cir. 2009), aff’d on other grounds, 131 S.

Ct. 2007 (2011). Later unpublished cases from this circuit have not applied O’Dell in the manner

proposed by the government. See United States v. Jackson, 22 F. App’x 396, 397-98 & n.3 (6th Cir.

2001); but see United States v. Levon, 127 F. App’x 865, 869 (6th Cir. 2005). Other circuits have

uniformly held that where the defendant makes an appearance before the indictment, the indictment

starts the running of the speedy trial period, and not a later arraignment and not guilty plea. United

States v. Lopez-Valenzuela, 

, 489-92 (5th Cir. 2007); United States v. Mancias, 

, 807-08 (8th Cir. 2003); United States v. Hernandez, 

, 905 (11th Cir. 1984);

United States v. Haiges, 

, 1274 (9th Cir. 1982).

       Accordingly, we find that the district court incorrectly calculated the commencement of the

speedy trial period in this case. We therefore vacate the judgment below and remand for further

proceedings consistent with this opinion.




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