United States v. Gary Donald Barken

Gary Donald Barken appeals his jury trial conviction and sentence for unlawful transportation and disposal of hazardous material without a permit in violation of 42 U.S.C. § 6928 (d)(1) and (d)(2)(A) (codifying the Resource Conservation and Recovery Act, (RCRA)). He argues that the district court erred by denying his motion to dismiss the indictment for pre-indictment delay in violation of his due process rights under the Fifth Amendment and under Federal Rule of Criminal Procedure 48(b). He also alleges four sentencing errors. We affirm Barken’s conviction and remand to the district court to consider the sentencing issues in accordance with United States v. Booker, — U.S. -, 125 S.Ct. 738 , 160 L.Ed.2d 621 (2005), and United States v. Ameline, 409 F.3d 1073 (9th Cir.2005) (en banc).

FACTS

Barken was indicted on October 28, 2002, with eleven of the twenty-one counts relating to events that took place nearly five years earlier. In 1997, Barken became president of a family-owned business, Barken’s Hard Chrome, located in Compton, California. The company’s business is chrome plating and metal finishing. Beginning in the spring of that year, Barken spoke with Michelle Totten, the…