F I L E D

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

United States Court of Appeals

Tenth Circuit

DEC 21 1999

PATRICK FISHER
Clerk

UNITED STATES OF AMERICA,

Plaintiff-Appellee,
v.

No. 99-6098
(D.C. No. 98-CR-117-M)

MICHAEL SCHAFFER,

(W.D. Okla.)

Defendant-Appellant.
ORDER AND JUDGMENT *
Before TACHA, McKAY, and MURPHY, Circuit Judges.

After examining the briefs and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).
The case is therefore ordered submitted without oral argument.
Defendant Michael Schaffer appeals his conviction and sentence following
a conditional guilty plea to a violation of 21 U.S.C. 844(a). He challenges his
conviction by arguing that the district court erroneously denied his motion to

This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
*

dismiss the indictment, and he complains that his sentence is erroneous because
the court improperly computed his criminal history.
On March 3, 1997, a correctional officer stopped Defendant--then an
inmate at the Federal Correctional Institution, El Reno, Oklahoma--as he was
leaving another inmates cell. While the officer was attempting to search
Defendant, Defendant wrestled away and threw something on the floor that was
later determined to be heroin. Defendant was placed in a special housing unit in
administrative detention from March 3, 1997, until July 13, 1998, when he
appeared in federal court. In April and May 1997, the FBI investigated the
incident, interviewing Defendant and collecting the evidence from the prison. In
July 1997, the FBI sent the evidence to the DEA to be analyzed. The FBI did not
receive the lab results confirming that the substance was heroin from the DEA
until March 6, 1998. Shortly thereafter, on March 10, 1998, the FBI sent the
results to the United States Attorney. In June 1998, an assistant U.S. Attorney
contacted the FBI about the case, and on July 7, 1998, Defendant was initially
indicted on one count of possessing contraband in a federal prison in violation of
18 U.S.C. 1791(a)(2), (d)(1)(C).
Defendant filed a motion to dismiss the indictment on July 24, 1998,
claiming that the preindictment delay deprived him of his rights to due process
and a speedy trial. See R., Vol. 1 at Doc. 8. The district court denied the motion
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for the reasons stated in the Governments response, namely that Defendant failed
to show prejudice from any delay or governmental intent to harass or gain an
advantage from the delay. See id. at Doc. 10; Doc. 9 at 8-10. On September 18,
1998, pursuant to Fed. R. Crim. P. (11)(a)(2), Defendant entered a conditional
guilty plea to a superseding indictment charging possession of heroin in violation
of 21 U.S.C. 844(a), reserving the right to appeal the district courts denial of
his motion to dismiss the indictment. The court sentenced him to a term of
twenty-seven months imprisonment to run consecutively to the previously
undischarged term of imprisonment, to be followed by one year of supervised
release. 1

I.
Defendant first argues on appeal that the court erred in denying his motion
to dismiss the indictment for violations of his Fifth and Sixth Amendment rights.
Specifically, he claims that his rights to due process and a speedy trial were
violated by his fifteen-month detainment in administrative detention and by the
governments delay in bringing an indictment. Whether [Defendants] due
On January 15, 1998, Defendant filed a petition for writ of habeas corpus
under 28 U.S.C. 2241 to obtain relief from his conditions of confinement. The
district court denied relief for failure to state a claim to the extent that the petition
constituted a Bivens-type claim, but it dismissed without prejudice the speedy
trial claims. See Order filed September 30, 1998, No. CIV-98-79-A (W.D. Okla.).
1

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process rights were denied by a delay in bringing an indictment is a question of

fact, which this court reviews for clear error. United States v. Trammell, 133
F.3d 1343, 1351 (10th Cir. 1998). 2
With respect to the allegation of a due process violation, the Supreme Court
has held that the Due Process Clause has a limited role to play in protecting
against oppressive [pre-indictment] delay. United States v. Lovasco, 431 U.S.
783, 789 (1977). Preindictment delay is not a violation of the Due Process
Clause unless the defendant shows both that the delay caused actual prejudice and
that the government delayed purposefully in order to gain a tactical advantage.
Trammell, 133 F.3d at 1351 (quoting United States v. Johnson, 120 F.3d 1107,
1110 (10th Cir. 1997)). To establish a due process violation based on
preindictment delay a defendant must show definite and not speculative prejudice;
conclusory and unspecific allegations of prejudice are insufficient to constitute a
showing of actual prejudice. See United States v. Marion, 404 U.S. 307, 325-26
(1971); Trammell, 133 F.3d at 1351.
Defendant asserts that the Governments delay caused him prejudice and
While this court appears to have applied differing standards of review to a
district courts grant or denial of a motion to dismiss the indictment based on
preindictment delay, compare Trammel, 133 F.3d at 1351 (citing United States v.
Engstrom, 965 F.2d 836, 838 (10th Cir. 1992)), with United States v. Comosona,
848 F.2d 1110, 1113 (10th Cir. 1988) (applying abuse of discretion standard), for
purposes of this appeal we apply the clearly erroneous standard utilized by our
more recent decision in Trammell.
2

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was designed to harass him and gain a tactical advantage. Appellants Br. at
12. He also complains about his administrative detention, alleging that the
fifteen-month segregation exacted a great mental and physical toll which in turn
affected his ability to reconstruct and recall events and witnesses related to the
March 3, 1997 incident. 3 Id. He does not, however, set forth facts explaining
how any missing witnesses testimony would have been of benefit to his case,
Trammell, 133 F.3d at 1351, and his conclusory and broad allegations fail to show
specific prejudice caused by the delay. See United States v. Jenkins, 701 F.2d
850, 855 (10th Cir. 1983), rejected on other grounds by Batson v. Kentucky, 476
U.S. 79 (1986).
Nor does Defendant present any evidence tending to establish that the delay
in indictment was an intentional ploy to gain a tactical advantage. Trammell,
133 F.3d at 1351. The record indicates that the delay was primarily attributable
to the length of time it took for the DEA to analyze the seized substance. Further,
the record shows that because Defendant was serving 120 months imprisonment
for a 1993 conviction, for which he was not eligible for release during the delay
period, there was no known reason for expediting Defendants case. The
Government also stated that in March 1998 indictments were filed in six other

The length of the preindictment delay actually appears to be 16 months,

instead of the 15 months described by Defendant.
3

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cases assigned to the Assistant U.S. Attorney responsible for this case. Because
of the number of pending indictments, the Government waited about four months
before indicting Defendant. See R., Vol. 1, Doc. 9 at 4. These types of delays in
criminal prosecutions are not unusual and do not satisfy Defendants burden to
show some culpatory or intentional action on the part of the Government. See
Trammell, 133 F.3d at 1351 (affirming district courts finding that three-year and
nine-month preindictment delay attributable to backlog of cases and shortages of
attorneys did not show intent to injure defendant). We hold that the court did not
clearly err in finding that Defendant failed to allege the kind of substantial
prejudice that warrants dismissal and in thus concluding that Defendants due
process rights were not violated.
Defendants second argument is that the preindictment delay violated his
Sixth Amendment right to a speedy trial. While we have clearly stated that this
right is not triggered until an accused is formally charged or arrested, see
Johnson, 120 F.3d at 1109 (citing Marion, 404 U.S. at 320), Defendant suggests
that the right attached when he was held in administrative detention. The circuit
courts unanimously agree that administrative or disciplinary segregation in prison
does not constitute an arrest under Sixth Amendment jurisprudence. See United
States v. Bambulas, 571 F.2d 525, 527 (10th Cir. 1978); accord United States v.
Mills, 810 F.2d 907, 909 (9th Cir. 1987); United States v. Mills, 704 F.2d 1553,
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1556-57 (11th Cir. 1983); United States v. Daniels, 698 F.2d 221, 223 (4th Cir.
1983); United States v. Duke, 527 F.2d 386, 390 (5th Cir. 1976); cf. United States
v. Gouveia, 467 U.S. 180, 190 n.6 (1984) (stating that Court expressed no view
as to when the Sixth Amendment speedy trial right attaches but noting Ninth and
Fifth Circuit cases holding that prisoners administrative segregation does not
constitute an arrest for purposes of speedy trial right); United States v. Joseph,
50 F.3d 401, 402 (7th Cir. 1995) (noting that, in context of calculating criminal
history and related sentences, federal prisoners are not arrested when placed in
segregation pending the determination of disciplinary charges against them);
Rivera v. Toft, 477 F.2d 534, 535 (10th Cir. 1973) (explaining in context of
double punishment question that the discipline of inmates arises while they are
in custody pursuant to unrelated valid convictions and [administrative
segregation] is not considered an arrest). In light of these cases, and because
we are bound by Tenth Circuit precedent, Defendants argument on the Sixth
Amendment violation is foreclosed.
For these reasons we hold that the court did not clearly err in denying
Defendants motion to dismiss the indictment for preindictment delay.

II.
Defendant also challenges his sentence, contending that the district court
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erred twice in calculating his criminal history. We review the courts factual
findings for clear error and its legal interpretation of the Sentencing Guidelines de
novo. See United States v. Henry, 164 F.3d 1304, 1310 (10th Cir.), cert. denied,
U.S.

, 119 S. Ct. 2381 (1999). We are mindful of our obligation to give

due deference to the district courts application of the guidelines to the facts.
Id.
Defendant complains that the court improperly counted two prior
convictions separately in its criminal history calculation because those convictions
were related under 4A1.2 of the United States Sentencing Guidelines. Based on
the presentence report, the district court found that these two prior sentences were
not related because they were in fact separated by an intervening arrest. R., Vol.
2 at 28; see id., Vol. 3 at 26, 27. The court therefore assessed three points for
each conviction, adding six points to Defendants criminal history.
The convictions at issue were for possession of methamphetamine.
Defendant was arrested on April 7, 1989, and again on May 31, 1989. For both
offenses, he was sentenced on March 30, 1990, to twelve years imprisonment with
the sentences to run concurrently.
Commentary to 4A1.2 of the Sentencing Guidelines provides that [p]rior
sentences are not considered related if they were for offenses that were separated
by an intervening arrest. U.S.S.G. 4A1.2 comment. (n.3). An example of
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unrelated sentences would be when the defendant is arrested for the first offense
prior to committing the second offense. Id. The commentary then states that
[o]therwise, prior sentences are considered related if they resulted from offenses
that (1) occurred on the same occasion, (2) were part of a single common scheme
or plan, or (3) were consolidated for trial or sentencing. Id. (emphasis added).
Defendant claims that because the offenses were consolidated for sentencing, the
court should have treated the two convictions as related and assessed only three
points instead of six points. He also argues that the offenses were related because
their similarity indicates that they were part of a single common scheme or plan.
The evidence at sentencing demonstrated that the two offenses were
separated by an intervening arrest. Defendant was arrested first on April 7, 1989,
before committing the second offense on May 31, 1989. Although in both
instances Defendant was stopped for a traffic violation, he was in two different
cars, two separate arrest reports were written by the police department, and the
arrests occurred approximately two months apart. See R., Vol. 2 at 22-23. The
Government is correct in arguing that because an intervening arrest separated these
two prior offenses we need not examine the considerations contained in the
otherwise portion of the commentary; we are bound by the intervening arrest
language. Cf. United States v. McCloud, 127 F.3d 1284, 1292 (10th Cir. 1997)
(applying intervening arrest language of 4A1.2 comment. (n.3) to uphold district
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courts finding that prior sentences were not related offenses for criminal history
purposes). From this evidence, we cannot say that the court erred in finding that
the two sentences were unrelated for purposes of assessing criminal history, nor
did it err in applying the commentary of 4A1.2.
Defendant also asserts that the court erred in giving three criminal history
points for a 1981 conviction for delivery of marijuana which emanated from a
multiplicious indictment. He attempts to collaterally attack this prior conviction
because he believes that the count to which he pleaded guilty was unconstitutional
because the indictment charged two deliveries of marijuana to the same man on the
same date. See Appellants Br. at 21; R., Vol. 2 at 6.
Commentary note 6 to 4A1.2 states that [w]ith respect to the current
sentencing proceeding, this guideline and commentary do not confer upon the
defendant any right to attack collaterally a prior conviction or sentence beyond any
such rights otherwise recognized in law. U.S.S.G. 4A1.2 comment. (n.6). In
United States v. Simpson, 94 F.3d 1373, 1381-82 (10th Cir. 1996), we decided that
the district court correctly determined that the defendant was precluded from
collaterally attacking his prior conviction for criminal history purposes under the
Sentencing Guidelines because he did not allege a complete denial of counsel.
Because Defendant here has not collaterally attacked his 1981 conviction based
on the complete denial of counsel, id. at 1381 (citing United States v. Garcia, 42
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F.3d 573, 581 (10th Cir. 1994)); see U.S.S.G. 4A1.2, comment. (n.6), he is
precluded from collaterally attacking the prior conviction for sentencing purposes.
We hold that the district court did not err in assessing three criminal history points
for Defendants 1981 conviction. The court correctly determined Defendants
sentence.

III.
For the foregoing reasons, we affirm Defendants sentence and conviction.
AFFIRMED.
Entered for the Court

Monroe G. McKay
Circuit Judge

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