United States Court of Appeals
          For the Eighth Circuit
      ___________________________

              No. 16-1381
      ___________________________

           United States of America

      lllllllllllllllllllll Plaintiff - Appellee

                         v.

             Dwight Deron Cooke

    lllllllllllllllllllll Defendant - Appellant
       ___________________________

              No. 16-1738
      ___________________________

           United States of America

      lllllllllllllllllllll Plaintiff - Appellee

                         v.

Maria Elena Cantu, also known as Maria Cantu

    lllllllllllllllllllll Defendant - Appellant
                    ____________

 Appeals from United States District Court
for the Southern District of Iowa - Davenport
               ____________
                          Submitted: November 14, 2016
                              Filed: April 5, 2017
                                 ____________

Before COLLOTON, BEAM, and GRUENDER, Circuit Judges.
                          ____________

BEAM, Circuit Judge.

       Dwight Cooke and Maria Elena Cantu were convicted of conspiring to
distribute methamphetamine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), and
846. Their convictions arose out of the same investigation and their cases have been
consolidated on appeal. They each challenge aspects of their pretrial detention,
conviction, and sentencing, and we now affirm the district court.1

I.    BACKGROUND

       State and local law enforcement officers investigated a drug-trafficking ring
in Davenport, Iowa, in November and December of 2014. The investigation involved
several controlled buys and revealed a chain of distribution with Cantu at the top,
supplying methamphetamine and other narcotics, and Cooke at the bottom, selling to
users. State search warrants were issued in December 2014, authorizing searches of
the residences of the ring members. On January 16, 2015, a federal complaint was
filed before a federal magistrate judge charging Cooke, Cantu, and two others with
conspiracy to distribute methamphetamine. The magistrate judge issued federal arrest
warrants for the conspirators in that case, case 3:15-mj-6. Because Cooke's and
Cantu's claims are distinct and pertain to their respective circumstances, we outline
the facts of their cases separately.


      1
      The Honorable Stephanie M. Rose, United States District Judge for the
Southern District of Iowa.

                                         -2-
      A.     Cooke

       On January 23, 2015, Cooke called the Davenport Police Department and
stated he would turn himself in at 7:30 p.m. that evening. He then called his
girlfriend and requested that he see his son because he was going to jail later that day.
When he met his girlfriend, his son was not with her. The couple argued, and Cooke
then assaulted his girlfriend with a scalpel, attempting to cut her throat. He missed,
instead cutting her from the corner of her mouth to her cheek. He then stole her
vehicle and fled, and failing to turn himself in that evening, remained at large. On
February 4, 2015, the Iowa District Court for Scott County issued an arrest warrant
for Cooke for a charge of "Willful Injury - Causing Bodily Injury" for the assault on
his girlfriend. On February 18, 2015, a state bench warrant was issued for Cooke's
having violated a protective order prohibiting him from contacting his girlfriend.
That same day, Cooke was arrested by Davenport police officers and U.S. Marshals.
The arresting state officer read all three warrants–the state arrest and bench warrants
and the federal 3:15-mj-6 warrant–to Cooke. Also on February 18, a federal grand
jury in the Southern District of Iowa indicted Cooke, Cantu, and the other
conspirators on federal conspiracy charges. The indictment was filed in case 3:15-cr-
15, and a federal arrest warrant for Cooke in that case was issued that day, but not
executed. Cooke was held in Scott County Jail, and the U.S. Marshals Service issued
a writ of detainer against him. On April 24, 2015, Cooke was transferred to federal
custody, a U.S. Marshal executed the 3:15-cr-15 warrant, and Cooke appeared before
a federal magistrate judge for the Southern District of Iowa. Cooke filed a motion to
dismiss, arguing that the amount of time between his February 18 arrest and his April
24 appearance violated both Federal Rule of Criminal Procedure 5(a)(1)(A) and the
Sixth Amendment. The district court dismissed the motion.

       Cooke's trial date was initially set for June 8, 2015, but the district court
continued trial to August 17, noting, "There is voluminous discovery and a failure to
grant continuance will deny reasonable time necessary for adequate preparation for

                                          -3-
trial even with the exercise of due diligence by the parties." Trial was continued
again, over Cooke's objection, to August 24 due to the district court's trial schedule.
On August 13, the district court granted another sixty-day continuance in order for
Cooke's new counsel to prepare for trial, now set for October 26. On October 16,
Cooke pled guilty to the federal conspiracy charge.

       At the sentencing hearing, there was discussion about whether Cooke's assault
on his girlfriend was relevant conduct. See U.S. Sentencing Guidelines Manual
§ 1B1.3 (hereinafter U.S.S.G. or Guidelines). At this time Cooke had been convicted
in state court on charges arising from the assault on his girlfriend, but he had not yet
been sentenced. Although the district court believed the assault was relevant, it
granted the parties' request that it be treated as nonrelevant. As a consequence,
Cooke was safety-valve eligible, but the assault added a point to his criminal history
and his federal sentence would be eligible to run consecutively with the anticipated
sentence on the state charges. U.S.S.G. §§ 4A1.1(c), 4A1.2(a)(4), 5C1.2, 5G1.3(c).
After establishing a criminal-history category of I and a Guidelines advisory range
of 46 to 57 months, the district court departed upward to an advisory range of 57 to
71 months on the basis of an underrepresented criminal history. 

The
district court was concerned with two convictions too old to be counted in calculating
Cooke's criminal-history category under Guidelines § 4A1.2(e)(1). The first was a
conviction for assaulting his girlfriend and the mother of his children. Cooke used
a twisted T-shirt to repeatedly choke her and punched her in the face. The
presentence investigation report (PSIR) also noted that Cooke subsequently violated
a no-contact order by visiting the woman's apartment. The second was a conviction
for burglary, in which Cooke kicked in another woman's door, threatened to kill her,
and fled from police officers. In addition, the district court was concerned with
Cooke's conviction for the January 2015 assault described above. That conviction
garnered only one point because Cooke had not yet been sentenced, 

but the district court considered it a "horrific" incident and "by far the most serious
offense." This, combined with the fact that officers had to tase Cooke during his

                                          -4-
February 18, 2015, arrest, led the district court to conclude that a criminal-history
category of III was more appropriate.

        The district court then varied upward to 96 months on the basis of the 2015
assault. Although it had accepted the parties' suggestion to treat the 2015 assault as
nonrelevant conduct for purposes of determining the applicable Guidelines range, it
noted that it was "firmly convinced" that the assault was, in fact, relevant. The
district court stated that "if it were relevant conduct, we would have had a very
different calculation." It considered the assault for purposes of its analysis under 18
U.S.C. § 3553(a), stating the treatment of the assault under the Guidelines was
"essentially [a] sentencing concession[] made by the government that I am allowed
to consider in deciding a fair and appropriate sentence." It stated that although the
State would be permitted to order a sentence on the assault charges to run consecutive
to the federal sentence, the district court's experience with Iowa state and federal
prosecutions led it to believe that Cooke would likely be paroled quickly to serve his
federal sentence. It also noted the high quantity and purity of the drugs involved.
The district court therefore varied upward to what it would have sentenced Cooke to
if it had considered the 2015 assault relevant conduct, and it ordered that sentence to
be served concurrently with the anticipated state sentence. Cooke appeals the district
court's denial of his motion to dismiss and sentencing.

      B.     Cantu

       Cantu was arrested on January 17, 2015, and made her initial appearance on the
20th. She was indicted on February 18, 2015, and trial was set for May 4. On
Cantu's motion, the trial was continued to June 8, 2015. In its order the district court
specified that "[t]he time of the delay shall constitute excludable time under the
Speedy Trial Act." On May 14 and on defendants' motion, trial was again continued
to August 17, the district court again specifying that the time of delay was excludable
under the Speedy Trial Act. On July 1 the district court continued trial to August 24

                                          -5-
due to its conflicting trial schedules. On August 13 and on motion by Cooke,
unresisted by Cantu, the trial was continued again to October 26, and again the
district court noted the delay was excludable for Speedy Trial Act purposes. Cantu's
counsel moved to withdraw and so trial was continued to November 30, 2015, and
again the district court specified the delay was excludable under the Speedy Trial Act.
Cantu then notified the court she would be waiving her right to a jury trial, and a
bench trial was scheduled for December 1, 2015. The record does not reflect that
Cantu at any point asserted her rights under the Speedy Trial Act before the district
court.

       At trial, the government presented evidence of three controlled purchases of
methamphetamine involving Cantu's niece, Rachel Gonzalez. Before two of these
purchases, investigators observed Gonzalez park near Cantu's vehicle at a motel
where Cantu and her husband were staying, briefly enter the motel, and emerge
supplied with drugs she sold immediately afterward. Investigators also observed
Gonzalez meet with someone resembling Cantu immediately after Gonzalez sold
methamphetamine to Cooke. The government presented evidence from their search
of Cantu's motel room, in which they found Cantu's purse on a night stand with
approximately $11,000 cash in it. Of that amount, $2,500 was from marked bills used
in controlled purchases of cocaine (accounting for $300) and methamphetamine
(accounting for $2,200). In the drawer of the night stand, officers found
approximately 220 grams of cocaine divided into one-ounce packages. Officers also
found a digital scale that tested positive for cocaine residue. In addition, the
government presented text-message communications between members of the
conspiracy, which officers obtained when they seized and downloaded the contents
of Cantu's and Gonzalez's cell phones. In an interview with investigators, Cantu
claimed the $11,000 was from her husband's tattooing and tree-service businesses and
that she did not know anything about the cocaine found in the motel room. On this
evidence, the district court found Cantu guilty. Cantu challenges the admission of



                                         -6-
certain evidence, the efficacy of her counsel, the sufficiency of the evidence, and she
brings a Speedy Trial Act claim.

II.   DISCUSSION

      A.     Cooke

      Cooke appeals the district court's denial of his motion to dismiss and its upward
departure and variance at sentencing.

             1.     Motion to Dismiss

       We review the district court's denial of a motion to dismiss de novo. United
States v. Tankersley, 

, 722 (8th Cir. 2004). Cooke argued in his motion
that the sixty-five day delay between his February 18 arrest and April 24 initial
appearance violated Federal Rule of Criminal Procedure 5(a)(1)(A) and the Sixth
Amendment.

                    a.     Federal Rule of Criminal Procedure 5

       Rule 5(a)(1)(A) provides that "[a] person making an arrest within the United
States must take the defendant without unnecessary delay before a magistrate judge."
"Rule 5(a) applies only to persons arrested and held under federal law." United States
v. Elliott, 

, 1015 (8th Cir. 1970). Although Rule 5 does not apply
where the defendant "has been arrested by local authorities and is in their sole
custody," it may apply in the absence of a federal arrest "when there is evidence
indicating that the arrest and detention by the state official were at the request of
federal authorities or for the purpose of assisting them." United States v. Jarrett, 

, 971 (8th Cir. 1970) (first passage quoting Tucker v. United States, 

, 370 (8th Cir. 1967)); see also United States v. Jeanetta, 

, 656 (8th

                                          -7-
Cir. 2008) (noting Rule 5(a) applies to a person in local custody where "the state
officers are acting at the direction of or in concert with the federal officers, or there
is collaboration between the federal and state authorities" (quoting United States v.
Morris, 

, 1236 (8th Cir. 1971))).

        When Cooke was arrested on February 18, 2015, he was taken into state
custody on state charges until he was transferred by writ to federal custody on April
24. The only arguable bases on which his arrest could trigger Rule 5(a), then, are (1)
if the execution of the 3:15-mj-6 warrant at the time of Cooke's arrest rendered it a
federal arrest; or (2) if the state and local officers were acting at the direction of or in
order to assist federal authorities. Ultimately, however, we need not decide whether
Rule 5(a) applies under these circumstances. The purpose of that rule is to "frustrate
law-enforcing officers from detaining the arrested person for an unnecessary period
of time to enable the officer to extract a confession from the arrested individual."

(quoting 

). Accordingly, the
appropriate remedy for a violation of Rule 5(a)(1)(A) is not dismissal of an
indictment, but suppression of evidence illegally obtained as a result of the violation.
See United States v. Chavez, 

, 385-86 (8th Cir. 2013). Cooke points to
no such evidence, arguing only that the period in state custody prejudiced him by
delaying appointment of counsel, which deprived counsel of adequate time to prepare
for trial. We have not been directed to any authority suggesting that this is a sort of
prejudice addressed by Rule 5(a), and in any event Cooke's trial date was continued
at his request for ten weeks to allow time to prepare in light of voluminous discovery,
and later his new counsel was given a sixty-day continuance for time to prepare.
Cooke was not prejudiced by the period of delay and so he has not identified any
available remedy for a supposed violation of Rule 5.




                                            -8-
                    b.     Sixth Amendment Right to Speedy Trial

       Cooke next argues the time between his indictment and trial violated his Sixth
Amendment right to a speedy trial. The Sixth Amendment provides defendants with
a right to a speedy trial that "attaches at the time of arrest or indictment, whichever
comes first, and continues until the trial commences." United States v. Sprouts, 

, 1042 (8th Cir. 2002). If the length of this period extends far enough as
to be presumptively prejudicial, we then examine the reason for the delay, whether
the defendant asserted the right, and any prejudice to the defendant. 

that the delay between his February 18 arrest and his initial
appearance sixty-five days later prejudiced him for the same reason stated in his Rule
5 argument–lack of adequate time to prepare. But a defendant's constitutional right
to a speedy trial concerns the length of time between the indictment or arrest and
trial, not his initial appearance. Cooke's argument as to prejudice seems to be that the
time before trial was too speedy because his counsel needed more time to prepare; but
the constitutional right to a speedy trial is primarily concerned with an unduly long
period and is meant "to minimize the possibility of lengthy incarceration prior to
trial." United States v. MacDonald, 

, 8 (1982).

        Cooke was indicted on the conspiracy charge on February 18, and he pled
guilty on October 16. A magistrate judge recommended the plea be accepted that
day, and the district court accepted the report and recommendation on November 12.
Thus the correct period for analysis under the Sixth Amendment is at most 267 days,
a little shy of nine months.2 "A delay approaching a year may meet the threshold for

      2
       The constitutional right to a speedy trial ceases upon conviction, Betterman
v. Mont., 

, 1618 (2016), and a guilty plea is itself a conviction, United
States v. Lincoln, 

, 525 (8th Cir. 2005). We do not address, and give
Cooke the benefit of, the question of whether a guilty plea accepted in a report and
recommendation by a magistrate judge and later accepted by a district court operates
                                          -9-
presumptively prejudicial delay . . . ." United States v. Titlbach, 

, 699
(8th Cir. 2003). In Titlbach we held an eight-month delay was not presumptively
prejudicial "[g]iven the complexity of the conspiracy and the length of trial." Id.; see
also United States v. McFarland, 

, 318 (8th Cir. 1997) (holding seven-
month period between indictment and trial "too brief a delay to trigger review of his
Sixth Amendment speedy trial claim"), abrogated by United States v. Knights, 

(2001). The instant case involved several coconspirator defendants,
voluminous discovery, several requests from defendants for continuances, and
motions for both Cooke's and Cantu's counsel to withdraw. Given this we do not
consider the 267-day period presumptively prejudicial. Even if it were, the lion's
share of the delay was due to Cooke's and his codefendants' own motions for
continuance, and Cooke provides no citation to the record demonstrating that he
asserted his speedy trial rights. The district court granted two of those continuances
specifically to allow Cooke's counsel to deal with voluminous discovery, remedying
the very prejudice he complains of. We therefore affirm the district court's denial of
Cooke's motion to dismiss.

             2.     Sentencing

       Cooke next challenges the reasonableness of the district court's upward
departure and upward variance at sentencing. We review sentencing decisions for an
abuse of discretion. United States v. Feemster, 

, 461-62 (8th Cir. 2009)
(en banc). We first ask whether the district court committed any significant
procedural error, which includes the failure to adequately explain deviations from the
applicable Guidelines range. 

court abuses its discretion when it fails
to consider a relevant factor that should have received significant weight, gives
significant weight to an improper or irrelevant factor, or commits a clear error of


as a conviction on the day it is given, recommended for acceptance by a magistrate
judge, or accepted by the district court.
                                         -10-
judgment in weighing the appropriate factors. 

district court did not commit
procedural error, we then review the substantive reasonableness of the sentence for
an abuse of discretion, considering the totality of the circumstances and the extent of
any deviation from the applicable Guidelines range. 

Departure

       Cooke first objects to the district court's departure from an advisory Guidelines
range of 46 to 57 months upward to a range of 57 to 71 months. Section 4A1.3 of the
Guidelines permits a district court to rely on reliable information to conclude the
defendant's criminal-history category underrepresents the seriousness of her criminal
history and the likelihood of recidivism. The district court considered Cooke's pattern
of violent conduct underlying his past arrests, his evasion and need to be subdued
when arrested, and his pending state charges for assault and violation of a protective
order. It stated, "Here I do believe that the criminal history category of I pretty
dramatically underrepresents the serious nature of the defendant's prior record." After
reciting Cooke's past conduct and emphasizing the brutal nature of his 2015 assault
on his girlfriend, the district court concluded, "That is just not a category I offender.
Category I offenders don't have criminal history or don't have any serious criminal
history. This is in my view a criminal history that is most closely resembling that of
a category III offender . . . ."

       First, Cooke argues that his criminal history is not as violent as described by
the district court. He points out that the charges and sentences were relatively
unserious, netting in total nine days in county jail. Second, Cooke argues the district
court did not sufficiently explain its reasoning for regarding Cooke's criminal history
as more reflective of a category III history. Third, Cooke argues the district court
erred when it said, "Category I offenders don't have criminal history or don't have any
serious criminal history." Cooke argues that he is a category I offender because the
Guidelines exclude convictions that are too dated.

                                          -11-
        Cooke does not dispute the factual bases for the prior convictions outlined in
the PSIR or otherwise argue that they are not "reliable information." The district
court was certainly within its discretion to consider those facts. See United States v.
Thornberg, 

, 1026-27 (8th Cir. 2003). We do not think the district
court's arguable mischaracterization of the criminal history of category I offenders
amounts to a significant procedural error; its statement tended to show no more than
that it considered Cooke's criminal history more serious than that typical of a category
I offender. And although dated offenses are not counted for purposes of a criminal-
history calculation, U.S.S.G. § 4A1.2(d), (e), the district court is allowed to consider
such offenses for purposes of an upward departure under § 4A1.3(a)(2)(A). See
United States v. Johnson, 

, 943 (8th Cir. 2011).

       We are also unpersuaded by Cooke's challenge to the adequacy of the district
court's explanation for its upward departure from a category I to a category III
criminal history. We require a district court in imposing an upward departure under
Guidelines § 4A1.3(a) to proceed along the criminal history axis of the sentencing
matrix, comparing the defendant's criminal history–including the prior convictions
uncounted under the Guidelines the district court believes should be applied–with the
histories of offenders in each higher category. 

. While it is
true that the district court's explanation for the upward departure does not address
with much specificity why a category III criminal history is the appropriate level, we
have previously upheld nonextensive explanations of upward departures so long as
the district court "adequately explained [its] rationale for the sentence imposed." 

Nor do we require the district court to mechanically provide an explanation
for why each intermediate category is inapplicable. 

We think the
district court's focus on the seriousness of Cooke's criminal history and his propensity
for violence that history exhibited adequately explained the district court's rationale
and "provide[d] sufficient indicia of why the intermediary categories are
inappropriate." 

(quoting United States v. Azure, 

, 932 (8th



                                         -12-
Cir. 2008)). We detect no procedural error in the district court's upward departure,
nor do we think the extent of the departure was substantively unreasonable.

                    b.     Upward Variance

       Cooke next objects to the district court's upward variance, arguing that the
district court did not identify specific § 3553(a) factors and that it gutted the parties'
agreement on the relevance of the 2015 assault. These arguments are without merit.
In stating its reasons for the variance, the district court carefully recited Cooke's
history, it had already discussed the nature of his offense, it discussed the need for the
sentence to reflect what it considered to be relevant conduct, and it made clear it was
aware of the § 3553(a) factors. A district court "need not 'categorically rehearse each
of the [§] 3553(a) factors on the record when it imposes a sentence as long as it is
clear that they were considered.'" United States v. Townsend, 

, 994 (8th
Cir. 2010) (alteration in original) (quoting United States v. Dieken, 

, 909
(8th Cir. 2006)). Furthermore, the parties' "agreement" to consider the 2015 assault
nonrelevant was not a plea agreement accepted by the district court, see Fed. R. Crim.
P. 11(c)(1)(C), and the district court was under no obligation to disregard what it
perceived as relevant conduct. See 18 U.S.C. § 3661. We therefore detect no abuse
of discretion and affirm the district court's sentence.

      B.     Cantu

      Cantu argues: (1) the district court erred in admitting into evidence her text
messages and those of her coconspirators; (2) her rights under the Speedy Trial Act
were violated; (3) the assistance of her counsel was ineffective; and (3) the evidence
was insufficient to convict her.

      Cantu challenges the admission of her and Gonzalez's text messages in
evidence, arguing that they are hearsay, that they violate her rights under the

                                          -13-
Confrontation Clause, and that they were obtained pursuant to overbroad warrants.
But despite having requested discovery from the government and having notice in the
government's trial brief that the text messages would be used against Cantu, she did
not move in limine for their suppression. The basis for such a motion was reasonably
available to her before trial, and she has not shown good cause for her failure to move
to suppress the text messages at that time. Consequently, Cantu has waived her right
to even plain error review of the admission of that evidence. Fed. R. Crim. P.
12(b)(3)(C), (c)(3); United States v. Harken, 

, 639-40 (8th Cir.
2016); see also United States v. Herron, 

, 575 (8th Cir. 2008)
("Because Herron did not file a motion to suppress in the district court, we are 'not
in a position to intelligently and responsibly' conduct plain error review of the
matter." (quoting United States v. Wenner, 

, 981-82 (8th Cir. 1969))).

       Cantu next argues that her Speedy Trial Act rights were violated because she
was not brought to trial within the prescribed time. See 18 U.S.C. § 3161(c)(1). But
Cantu never moved the district court for dismissal prior to trial, and so she has waived
her right to the remedy provided by that statute. 

United States v.
Williams, 

, 572-73 (8th Cir. 2010).

       Cantu also argues her trial counsel was ineffective for failing to object to the
admission of the text messages, for failing to assert her rights under the Speedy Trial
Act, and for failing to call any witnesses favorable to Cantu. Because a claim on
direct appeal of ineffective assistance of counsel usually requires further development
of the record, we generally defer such claims to collateral review under 28 U.S.C.
§ 2255, excepting cases where the obvious result would be a plain miscarriage of
justice or inconsistent with substantial justice. United States v. McAdory, 

, 872-73 (8th Cir. 2007). Although Cantu did raise an ineffective assistance of
counsel claim before the district court, the deficiencies in her counsel's representation
alleged below were different from those raised here, and so the record is undeveloped
for purposes of this appeal. Further, we are not persuaded that the interests of justice

                                          -14-
compel us to deviate from our normal approach. Therefore, we decline to address
Cantu's ineffective assistance of counsel claim, without prejudice to her raising it in
a later proceeding.

        Finally, Cantu argues the evidence was insufficient to support her conviction
because it did not prove that Cantu had knowledge of the conspiracy. On appeal from
a bench trial, "[w]e review the sufficiency of the evidence de novo, viewing evidence
in the light most favorable to the government, resolving conflicts in the government's
favor, and accepting all reasonable inferences that support the verdict." United States
v. Acosta, 

, 960 (8th Cir. 2010) (quoting United States v. Scofield, 

, 584-85 (8th Cir. 2006)). "To convict a defendant of conspiracy to
distribute drugs, the government must prove that there was an agreement to distribute
drugs, that the defendant knew of the agreement, and that the defendant intentionally
joined the agreement. United States v. Chavez-Alvarez, 

, 1066 (8th
Cir. 2010). These elements may be proved by direct or circumstantial evidence. 

Here, text messages between Cantu and Gonzalez reference the selling of
"ICE," slang for methamphetamine, identify an individual by the name "main,"
(referencing a coconspirator's street name, "Mane"), and discuss Gonzalez's payment
to Cantu of money for, in the expert opinion of an investigator, the "fronting" of
controlled substances. Gonzalez, who was observed engaging in several drug sales,
was spotted near Cantu's motel room shortly before two sales, and possibly seen
speaking to her shortly after another. Upon a search of the motel in which Cantu was
staying, marked bills from controlled purchases were discovered in Cantu's purse,
inches from cocaine packaged into one-ounce units and near a scale containing
cocaine residue. On this evidence, and in light of the deference afforded a district
court's verdict after a bench trial, we affirm Cantu's conviction.




                                         -15-
III.   CONCLUSION

       For the foregoing reasons, we affirm.
                       ______________________________




                                   -16-