UNITED STATES COURT OF APPEALS

                       FOR THE FIFTH CIRCUIT



                            No. 99-11382


                     UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee,


                               VERSUS


   DONALD KINNARD BATES, also known as Donald Keith Bates, also
known as Donald Kinnond Bates, also known as Donald Kenneth Bates,
also known as Donald Kevin Bates,

                                                 Defendant-Appellant.




            Appeal from the United States District Court
                 For the Northern District of Texas
                         (4:99-CR-117-1-Y)


                         November 21, 2000
Before DUHÉ, and PARKER, Circuit Judges, and LINDSAY,* District
Judge.
PER CURIAM:**

       Appellant Donald Kinnard Bates appeals his conviction and


  *
   District Judge of the Northern District of Texas sitting by
designation.
  **
    Pursuant to 5TH CIR. R. 47.5, the Court has determined that this
opinion should not be published and is not precedent except under
the limited circumstances set forth in 5TH CIR. R. 47.5.4.

                                 1
sentence for mail fraud and wire fraud.                 Bates claims that the

trial court erred by (1) denying him the right to a speedy trial

under 18 U.S.C. § 1361; (2) admitting an expert witness without

conducting a Daubert inquiry; (3) relying on insufficient evidence

of prior convictions in a presentence report; and (4) departing

upward from the federal sentencing guidelines without sufficiently

stating its rationale.      For the reasons set out below, we affirm

Mr. Bates’ conviction.

                                        I.

     Donald Kennard Bates was indicted on July 7, 1999 for five

counts of mail fraud and five counts of wire fraud.                           Bates

allegedly   opened   a   series    of   checking       accounts    with   a   false

driver’s license, deposited small amounts of money in the accounts,

and wrote checks to purchase airline tickets for sums exceeding the

funds in each account.     He then used the tickets for travel or sent

the tickets back to the airlines for             refunds, which were delivered

through   the   United   States     mail.         At   trial,     witnesses     from

approximately nine banks testified that Bates had opened accounts

and written checks for insufficient funds.                The total number of

“hot” checks exceeded 170.        The total loss to the airlines was over

$300,000.

     On September 23, 1999, after a three-day trial, the jury

returned a verdict finding Bates guilty on all counts of the

indictment.     After    considering         a   presentence    report    and    the



                                        2
relevant   federal   sentencing   guidelines,    the   district   judge

sentenced Bates to an aggregate of 120 months in prison.          Bates

timely appeals his conviction and sentence.

                                  II.

     Bates first contends that the trial court erred by failing to

dismiss his indictment because he was not tried within seventy days

of the date he was indicted as required by the Speedy Trial Act. 18

U.S.C. § 3161(c)(1).    “We review the facts supporting a Speedy

Trial Act ruling using the clearly erroneous standard and the legal

conclusions de novo.”   United States v. Bermea, 

, 1566

(5th Cir. 1994).

     Bates filed a motion to dismiss on August 6, 1999, which the

trial court denied on August 11.       Bates claims that this five-day

period during which his motion to dismiss was pending should be

included in the total seventy-day period.     If the time in which the

motion was pending before the court did not toll the seventy-day

period, then the trial court erred by commencing his trial after

the Speedy Trial Act’s seventy-day limit.      18 U.S.C. § 3161(c)(1).

     The Speedy Trial Act, designed to protect a defendant’s right

to a quick trial and the public’s interest in curbing the periods

of a defendant’s release on bail, requires a court to dismiss a

defendant’s indictment if the defendant is not brought to trial

before the end of seventy days after the defendant is indicted or

appears before a judge or magistrate, whichever is later.          Id.;



                                   3
United States v. Grosz, 

, 1323 (5th Cir. 1996); United

States v. Johnson, 

, 942 (5th Cir. 1994).             However, the

Speedy Trial Act provides exceptions for delays “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 . . ..”       18 U.S.C. § 3161(h)(1)(F).             Subsection F is

separated into two categories. See Henderson v. United States, 

, 328 (1986). The first category includes situations where

a pretrial motion requires a hearing.            See 

group

involves pretrial motions that do not require a hearing. See 

concerns the latter variety.

     Where a pretrial motion does not require a hearing, Subsection

F excludes the delay caused by a pending motion from the total

seventy-day period. 18 U.S.C. § 3161(h)(1)(F).             However, the delay

is limited to a “prompt disposition” of the motion, which cannot

exceed thirty days.    

(J); 

; 

.           Bates does not argue that the

court unduly delayed ruling on his motion to dismiss; rather, he

argues that the five-day period in which the court ruled on his

motion did not directly result in the delay of his trial, and

therefore should not be excluded from the total seventy-day period.

We address whether a pending pretrial motion constitutes a delay

for purposes of the Speedy Trial Act without any indicia that the

pending motion directly caused the postponement of a defendant’s


                                    4
trial.

       The plain language of section 3161(h)(1)(F) indicates that

periods of delay “resulting from any pretrial motion” will be

excluded from computing the time within which the trial of an

offense is commenced.        See United States v. Clymer, 

,

830 (9th Cir. 1994) (holding that when a court postpones a motion

to dismiss until after trial, the fact that the motion was pending

beforehand does not toll the seventy-day period in which the court

should have tried the case). The statute does not explicitly state

that   pretrial    motions    must   directly   cause   the   delay   of   a

defendant’s trial. Section 3161 expresses that a “period of delay”

includes a “delay resulting from any pretrial motion.”          18 U.S.C.

§ 3161(h)(1)(F).    In other words, the statute simply takes account

of the necessary pretrial impediments that all trial courts must

overcome before beginning a criminal trial. See, e.g., 

(allowing limited exclusions for periods of delay

under Subsection F for a motion in limine, a motion for a bill of

particulars, and a motion to suppress evidence); United States v.

Calle, 

, 46 (5th Cir. 1997) (holding that the seventy-

day time period was tolled by a motion to dismiss, a motion to

revoke detention, a motion to substitute an attorney, and a motion

for a pretrial determination of entrapment); 

(stating that a motion in limine will toll the time period under

the Act).    The Act does not require either the defendant or the


                                      5
government to establish that a pending motion actually delayed the

commencement    of   the   defendant’s     trial.        For    the   purposes   of

Subsection     F,    any   interlude   caused       by    the     trial   court’s

consideration of a pretrial motion constitutes a period of delay as

long as it comports with the principles set forth by the Supreme

Court in Henderson v. United States.           See 

; 

n.3 (noting that courts must look into

the circumstances of a pretrial motion to determine whether the

motion was taken under advisement as required by Henderson).

      Because Bates has not claimed that the five-day period in

which the trial court considered his motion to dismiss was other

than a “prompt disposition” under Subsection F, the five-day period

of delay will be excluded from the seventy days in which the court

could commence his trial.       Bates does not dispute that excluding

the five-day period would bring his trial within the requirements

of the Speedy Trial Act.1       We therefore affirm the trial court’s

denial of the defendant’s motion to dismiss.




  1
   Bates claims that the actual reason for the delay of his trial
was the court’s sua sponte motion for continuance in which the
district judge delayed Bates’ trial because an earlier criminal
trial was set for the same day. 18 U.S.C. § 3161(h)(8)(C) states
that a court cannot exclude time from the seventy-day period
because of general congestion in the court’s docket. Nevertheless,
after excluding the five-day period of delay resulting from Bates’
motion to dismiss, the court commenced his trial within the
seventy-day period.     The trial court’s continuance is of no
consequence under the Speedy Trial Act.

                                       6
                                   III.

      Bates also claims that the trial court erred by admitting the

testimony of a handwriting analyst without first conducting its own

Daubert inquiry or allowing Bates’ attorney to perform a Daubert

examination of the government’s witness.         See Daubert v. Merrell

Dow Pharmaceuticals, Inc., 

(1993). Bates first raised

the   issue   of   whether   handwriting    analysis   meets   the   Daubert

requirements in a motion in limine he filed on September 14, 1999.

Bates’ counsel moved to withdraw the motion, and the court granted

counsel’s motion to withdraw on September 17, 1999.              At trial,

Bates’ attorney asked the government’s expert witness about the

scientific reliability of handwriting analysis. The district judge

interrupted the examination and told counsel that a Daubert hearing

was inappropriate at that time.          Counsel then passed the witness

without objecting or moving for a hearing.2

      We review a district court’s decision concerning reliability

of expert testimony under an abuse of discretion standard.               See


  2
   The exchange between the judge and Bates’ attorney took place
as follows:

THE COURT: Well, I would have thought for that, which would be a
Duabert challenge, that you would have filed a motion for that to
be tested outside the presence of the jury.        So, if you’re
conducting a Daubert hearing, I think it’s inappropriate and
untimely.

DEFENSE COUNSEL: Yes, sir. Well, I’ll tender the witness, back,
and I would like an opportunity to ask some additional questions.

THE COURT: Certainly

                                     7
Kumho Tire Co., Ltd. v. Carmichael, 

, 1171 (1999).

However, when a party fails to contemporaneously object to the

admissibility of evidence at trial, we apply the plain error

standard of review.   See United States v. Bilbo, 

, 916

(5th Cir. 1994).   We must first decide which standard applies to

Bates’ appeal.

     It is without question that Rule 702 of the Federal Rules of

Evidence imposes an obligation on trial courts to ensure that all

expert testimony is reliable.    See Kumho Tire 

.   The trial court, in performing its “gatekeeping” function,

has discretion to choose the manner in which the reliability of an

expert’s testimony is appraised. See 

trial court

has no discretion to abandon its role as gatekeeper.     See 

(Scalia, concurring).    When a party objects to an expert’s

testimony, the court “must adequately demonstrate by specific

findings on the record that it has performed its duty . . ..”

Goebel v. Denver and Rio Grande Western R.R. Co., 

,

1088 (10th Cir. 2000).   Absent an objection, the trial judge is not

required to announce for the record that the expert witness’s

testimony is based on reliable methodology.   See Hoult v. Hoult, 

, 5 (1st Cir. 1995)(holding that a court implicitly performs

a Daubert analysis “sub silentio throughout the trial with respect

to all expert testimony”).    A defendant must still make a timely

objection to preserve error for appeal.     FED. R. EVID. 103(a)(1).


                                  8
If the defendant fails to object to the expert’s testimony, then

the   defendant   “waives   appellate   review   absent   plain   error.”

n.2.    See also Marbled Murrelet v. Babbit,

, 1066 (9th Cir. 1996)(holding that a litigant waived

its Daubert objections by failing to request a ruling on the

admissibility of evidence).

      Bates’ attorney attempted to question the reliability of the

government’s handwriting evidence at trial.        The court interjected

stating that Bates’ counsel should have filed a motion for a

Daubert hearing outside the presence of the jury and that his

questioning was inappropriate at that time.        Instead of objecting

to the witness or moving for a Daubert hearing, Bates’ attorney

passed the witness.   Because Bates’ attorney did not object to the

admission of the evidence, we review the trial court’s admission of

the government’s handwriting expert for plain error.

         “Under the plain error standard, forfeited errors are

subject to review only where the errors are ‘obvious,’ ‘clear,’ or

‘readily apparent,’ and they affect the defendant’s substantial

rights.” United States v. Clayton, 

, 351 (5th Cir.

1999)(quoting Douglas v. United Servs. Auto Ass’n, 

,

1424 (5th Cir. 1996) (en banc)).        The trial court’s admission of

the expert’s testimony regarding handwriting analysis does not even

amount to an error, much less an obvious error affecting the

defendant’s   substantial    rights.     “Courts   have   long    received


                                   9
handwriting analysis testimony as admissible evidence.”             United

States v. Paul, 

, 910 n.2 (11th Cir. 1999)(citing

United States v. Jones, 

, 1160-61 (6th Cir. 1997);

United States v. Velasquez, 

, 848-50 (3d Cir. 1995)).

Because testimony involving handwriting analysis has been readily

admitted in criminal cases, the trial court did not commit plain

error.   We affirm the trial court’s admission of the expert’s

testimony.

                                IV.

     In his third argument, Bates claims that the trial court’s

deference to the information in the presentence report (PSR) was

not supported   by   reliable    evidence   and   should   not   have   been

considered at sentencing. Factual findings used in sentencing must

be supported by a preponderance of the evidence, and “[w]e review

challenges to such findings for clear error.”          United States v.

Griffith, 

, 326 (5th Cir. 1997).       “A finding of fact is

clearly erroneous when, although there is enough evidence to

support it, the reviewing court is left with a firm and definite

conviction that a mistake has been committed.”         United States v.

Bermea, 

, 1575 (5th Cir. 1994)(citing United States v.

United States Gypsum Co., 

, 395 (1948)).

     The trial court may consider information in the PSR if the

information has “some minimum indication of reliability.”           United

States v. Vela, 

, 201 (5th Cir. 1991); United States v.

                                      10
Morris, 

, 425 (5th Cir. 1995).        A PSR alone “generally

bears sufficient indicia of reliability . . ..”           United States v.

Alfaro, 

, 966 (5th Cir. 1990).           Because Bates attacks

the reliability of the PSR, he bears the burden of establishing

that the information in the PSR is inaccurate.           See United States

v. Aubin, 

, 150 (5th Cir. 1996) (citing 

).

     Bates’ PSR contained records of convictions from Hawaii,

California,   Oregon,   Washington,    and   Iowa.      Probation    Officer

Hammond prepared the report and testified that she conducted a

thorough    investigation   of   Bates’      criminal     history.      Her

investigation included a search in the National Crime Information

Computer and correspondence with other probation officers who

handled Bates’ previous convictions.          Her investigation linked

Bates with each of the convictions listed in the PSR.                Special

Agent Sumner also testified that the inmate photographs from the

penitentiary packets were an “obvious match” to Bates.

     Bates argues that the testimony of Agent Sumner and Officer

Hammond was “vague” and did not sufficiently link Bates to the

convictions listed in the PSR. We conclude that the district judge

could easily find that the information in the PSR was thoroughly

investigated by Probation Officer Hammond and sufficiently reliable

to link Bates to the other convictions.         See 

.    The trial court’s consideration of the convictions listed


                                  11
in the PSR was not clear error.             Since Bates offers no evidence

that contradicts the information in the PSR, we will not disturb

the trial court’s factual findings.

                                       V.

     Finally,     Bates   contends     that    the   trial    court   used   an

inappropriate method for calculating the extent of the upward

departure from the sentencing guidelines.            He specifically claims

that the court did not consider each intermediate criminal history

category or adequately explain his departure from the sentencing

guidelines.   We review a trial court’s decision to depart from the

sentencing guidelines for abuse of discretion.               See United States

v. McKenzie, 

, 204 (5th Cir. 1993).

     A trial court “must evaluate each successive criminal history

category above or below the guideline range for a defendant as it

determines the proper extent of departure.”                  United States v.

Lambert, 

, 662 (5th Cir. 1993) (en banc).             If the court

chooses to depart from the guidelines, it must give reasons for its

departure and explain why the sentence it imposes is appropriate.

See 

   The trial court is not required “to go through a

ritualistic   exercise    in   which    it    mechanically     discusses   each

criminal history category that it selects.”            

court’s

reference to a defendant’s criminal history set out in a PSR

adequately establishes the factors that warrant a departure from

the sentencing guidelines.      See 

.


                                       12
     At Bates’ sentencing, the district judge cited the PSR, which

established that Bates had almost twice the criminal history points

necessary for a category VI imprisonment range of 51 to 71 months.

The court expressed the following explanation for its departure

from the sentencing guidelines:

     The Court finds that the defendant’s criminal history

     category   of   VI   does     not   adequately   reflect    the

     seriousness of his past criminal conduct or the liklihood

     that he will commit other crimes.        The Court has moved

     incrementally down the criminal history category VI scale

     in the sentencing table of the guidelines manual.          Based

     on the departure information in Paragraph 115 of the

     presentence report and other paragraphs cited by the

     Court, the Court has determined that a sentence of 120

     months is appropriate.         The sentence will meet the

     objectives of punishment, deterrence, and incapacitation

     of the offender for the protection of the public.

The district judge clearly considered each intermediate adjustment

and gave reasonable justifications for its upward departure from

the sentencing guidelines.       See United States v. Daughenbaugh, 

, 174-75 (5th Cir. 1995); 

;

-06.      The trial court’s assessment of 120

months is not the type of drastic departure that warrants a

detailed explanation.     

(“Although the


                                    13
sentence imposed in this case is more than twice the recommended

guideline range, it was not the sort of drastic departure . . .”

that would require a more detailed explanation).   We find that the

trial court did not abuse its discretion by departing from the

sentencing guidelines.

                                VI.

     In conclusion, we affirm the conviction of Bates on all counts

of wire fraud and mail fraud.    The trial court neither violated

Bates’ rights under the Speedy Trial Act nor abused its discretion

in admitting the government’s expert witness.   We also affirm the

trial court’s findings of fact concerning Bates’ criminal history

and its imposition of Bates’ sentence.

AFFIRMED




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