United States v. Steven Ritchie

FILED

JAN 15 2010

NOT FOR PUBLICATION

MOLLY C. DWYER, CLERK

U.S . CO U RT OF AP PE A LS

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 08-30275

Plaintiff - Appellee, D.C. No. CR-07-67-DWM

* v. MEMORANDUM

STEVEN RAY RITCHIE,

Defendant - Appellant.

Appeal from the United States District Court for the District of Montana Donald W. Molloy, District Judge, Presiding

Submitted October 13, 2009** Seattle, Washington

Before: CUDAHY, *** Senior Circuit Judge, and RAWLINSON and CALLAHAN, Circuit Judges.

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously finds this case suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Richard D. Cudahy, Senior United States Circuit Judge for the Seventh Circuit, sitting by designation. 1 Appellant Steven Ray Ritchie (Ritchie) appeals the sentence imposed

following his guilty plea to being a felon in possession of firearm in violation of

U.S.C. y 922(g).

1. The district court did not abuse…

MEMORANDUM ***

Appellant Steven Ray Ritchie (Ritchie) appeals the sentence imposed following his guilty plea to being a felon in possession of firearm in violation of 18 U.S.C. § 922 (g).

1.The district court did not abuse its discretion by dismissing the initial indictment without prejudice after finding a Speedy Trial Act violation. See United States v. Taylor, 487 U.S. 326, 335-36 , 108 S.Ct. 2413 , 101 L.Ed.2d 297 (1988). The court weighed relevant factors, and the record supports the district court’s holding of dismissal without prejudice. See, e.g., 18 U.S.C. § 3162 (a)(2); United States v. Medina, 524 F.3d 974, 982 (9th Cir.2008) (applying the § 3162(a)(2) factors). The district court correctly held that 18 U.S.C. § 4247 (b) does not affect decisions under the Speedy Trial Act. See, e.g., United States v. Daychild, 357 F.3d 1082, 1094 (9th Cir.2004). Custodial institutions charged with complying with the time limitations in 18 U.S.C. § 4247 (b), however, are urged to comply with its provisions. While some of the delay here was attributable to Ritchie (and does not bear on the Speedy Trial Act analysis), to the extent that delays also occurred because of the high volume of…

concurring:

I concur in the majority’s result, affirming Ritchie’s conviction and sentence. In my view, it is unnecessary for us to comment in this Speedy Trial Act case on the obligations of custodial institutions charged with complying with 18 U.S.C. § 4247 (b)’s time limitations, for two reasons.

*689 First, § 4247(b) does not affect decisions under the Speedy Trial Act. See United States v. Daychild, 357 F.3d 1082, 1094 (9th Cir.2004). Second, it is true that § 4247(b) prescribes that a defendant shall be held for not more than forty-five days in determining his mental competency to stand trial. See also 18 U.S.C. § 4241 . Ritchie arrived at the evaluation center on May 4, 2006, and the Bureau of Prisons (“BOP”) issued its Forensic Evaluation report on Ritchie on September 16, 2006. 1 However, the BOP report is clear that Ritchie malingered throughout the testing period, necessitating additional testing and leading evaluators to conclude:

The district court concluded that “the government did not cause the speedy trial violation” and “Defendant caused much of the delay by his failure to cooperate with the psychological examiners during the competency evaluation…