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APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO. (D.C. No. 1:07-CR-00184-WYD-4).
Mark G. Walta of Walta LLC, Denver, Colorado, for Defendant-Appellant.
Paul Farley, Assistant United States Attorney, (John F. Walsh, United States Attorney, with him on the brief), Denver, Colorado, for Plaintiff-Appellee.
Before BRISCOE, Chief Judge, HOLMES and BACHARACH, Circuit Judges.
BRISCOE, Chief Judge.
Defendant Brian Hicks entered a conditional plea of guilty and was convicted of (i) one count of possession with intent to distribute more than five kilograms of a mixture or substance containing a detectable amount of cocaine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A)(ii)(II); (ii) one count of possession of a firearm or ammunition by a felon, in violation of 18 U.S.C. § § 922(g)(1), 924(a)(2); and (iii) one count of possession of body armor by a felon previously convicted of a crime of violence, in violation of 18 U.S.C. § § 931, 924(a)(7). The district court sentenced Hicks to 240 months' imprisonment.
Hicks raises two arguments on appeal: that the district court erred in denying his two motions to dismiss based on alleged violations of his speedy trial rights under the Speedy Trial Act and Sixth Amendment; and that the district court violated the prohibition against judicial participation in plea negotiations.
Exercising jurisdiction under 28 U.S.C. § 1291, we affirm in part, reverse in part, and remand with directions. We conclude that Hicks's Speedy Trial Act rights were violated, but his Sixth Amendment rights were not. Because we are remanding for the district court to determine whether the charges against Hicks will be dismissed with or without prejudice, we do not reach his challenge to the plea negotiations.
Hicks's firearm and body armor charges arose from a 2005 shooting near a nightclub in Denver. Shortly after this shooting, Hicks was arrested. He was wearing a bulletproof vest and carrying a loaded .40 caliber Glock magazine. Because Hicks had previously been convicted of a felony, he was prohibited from possessing those items.
The narcotics charge resulted from an incident more than a year later, when Denver's Metro Gang Task Force intercepted a phone call suggesting that Hicks was going to meet a drug dealer at an auto shop to buy cocaine. Police observed the meeting. After Hicks left the shop in an SUV, the police attempted a traffic stop, which evolved into a car chase. As Hicks fled, he threw a black bag from the window of the SUV. The police later apprehended Hicks and recovered the bag, which contained several kilograms of cocaine.
On April 25, 2007, a federal grand jury indicted Hicks for a range of crimes committed in the course of a conspiracy to distribute cocaine. The events critical to the speedy trial issue took place in 2012, when the government's protracted prosecution of Hicks began to approach a resolution.
On July 3, 2012, the district court held a status conference and hearing on pending motions. At this hearing, the parties agreed that once the district court ruled on two pending motions there would be no unresolved motions remaining and the matter could be set for trial. The government indicated that the parties still needed to discuss some issues related to voir dire and the bifurcation of the trial, but the district court simply instructed the parties to meet and confer on those issues. On August 1, 2012, the district court ruled on the pending motions. The next day, the government moved the court " for an order setting a trial setting conference." ROA Vol. 6, at 516. The district court did not rule on this motion until September 27, 2012, when it scheduled a " status conference and hearing on all pending motions" for November 28, 2012.  Id. at 521. However, on November 15, before that status conference was held, Hicks filed two motions to dismiss on speedy trial grounds. The first alleged a violation of his Sixth Amendment right to a speedy trial, and the second alleged a violation of the Speedy Trial Act.
The district court denied both motions. Hicks eventually pleaded guilty and was sentenced on February 4, 2014. In his plea agreement, Hicks reserved the right to ...