FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
KANSAS (D.C. NO. 5:13-CR-40060-DDC-6)
A. Nichols, Assistant Federal Public Defender (Melody
Brannon, Federal Public Defender, with her on the briefs),
Office of the Kansas Federal Public Defender, Topeka, Kansas,
A. Brown, Assistant United States Attorney (Thomas E. Beall,
United States Attorney, with him on the brief), Office of the
United States Attorney, Topeka, Kansas, for Appellee.
TYMKOVICH, Chief Judge, MATHESON and MORITZ, Circuit Judges.
TYMKOVICH, Chief Judge.
appeal arose from a law enforcement investigation into a
drug-trafficking operation in the Geary County, Kansas area.
Agents gathered evidence by making controlled buys of crack
cocaine through a confidential informant; monitoring
telephones used by certain of the co-conspirators; and
conducting searches of several residences. Martye Madkins was
arrested and charged with one count of distribution of
cocaine base, in violation of 21 U.S.C. § 841(a), and
one count of distribution of cocaine base within 1, 000 feet
of a school, in violation of 21 U.S.C. §§ 841 and
trial, Madkins moved to dismiss the indictment for Speedy
Trial Act violations. The district court overruled the
motion, finding the court had previously granted an
ends-of-justice continuance that tolled the speedy-trial
clock. Madkins was tried along with several co-defendants,
including Johnny Lee Ivory, Anthony Carlyle Thompson, and
Albert Dewayne Banks, who are appellants in related
appeals. Madkins and his co-defendants were
convicted on all counts.
challenges the district court's denial of his motion to
dismiss for Speedy Trial Act violations. He also appeals his
sentence, arguing the district court erred in applying a
career-offender enhancement and in denying his request for a
variance. We affirm Madkins's convictions, because the
court did not err in denying Madkins's motion to dismiss
for Speedy Trial Act violations. The court properly relied on
ends-of-justice factors in granting a trial continuance. But
we vacate Madkins's sentence and remand for resentencing,
because the district court erred in denying Madkins's
request for a variance. The court impermissibly relied on a
belief that it was obligated to impose a sentence in the
guidelines range absent extraordinary circumstances.
address Madkins's challenges to his convictions and
sentence in turn.
Speedy Trial Act Violations
first argues the district court violated his right to a
speedy trial under the Speedy Trial Act. Specifically,
Madkins argues the court erred in a January 6, 2014 order
granting a continuance, because it was not a proper
ends-of-justice continuance and thus did not toll the
speedy-trial clock for the seventy-one days covered by the
order. We disagree and conclude the court's
ends-of-justice continuance complied with the requirements of
review a district court's decision to grant an
ends-of-justice continuance for an abuse of discretion.
United States v. Watson, 766 F.3d 1219, 1228 (10th
Cir. 2014). But whether the court complied with the Speedy
Trial Act's procedures and applied the appropriate legal
standards is an issue of law that we review de novo.
Id. We review any factual findings for clear error.
we go into detail about those aspects of the district
court's rulings Madkins contends are inadequate, we
briefly review the applicable speedy-trial principles.
Sixth Amendment guarantees an accused's right to a speedy
trial in criminal prosecutions. The Speedy Trial Act codifies
this right, providing that a defendant's trial
"shall commence within seventy days" of the
indictment or the defendant's first appearance,
"whichever date last occurs." 18 U.S.C. §
3161(c)(1). When a defendant demonstrates a violation of the
Act, the proper remedy is dismissal of the indictment.
See 18 U.S.C. § 3161(a)(2).
seventy-day time period may be tolled for certain reasons
enumerated in the Act, which include when the district court
grants an ends-of-justice continuance. That is, the court may
grant a continuance of the trial date when the "ends of
justice" support doing so. The Act therefore excludes,
in relevant part,
[a]ny period of delay resulting from a continuance granted by
any judge . . . if the judge granted such continuance on the
basis of his findings that the ends of justice served by
taking such action outweigh the best interest of the public
and the defendant in a speedy trial. No such period of delay
resulting from a continuance granted by the court in
accordance with this paragraph shall be excludable under this
subsection unless the court sets forth, in the record of the
case, either orally or in writing, its reasons for finding
that the ends of justice served by the granting of such
continuance outweigh the best interests of the public and the
defendant in a speedy trial.
18 U.S.C. § 3161(h)(7)(A).
also explains that in granting an ends-of-justice
continuance, the court must consider certain factors,
including (1) whether the failure to grant the continuance
would "result in a miscarriage of justice, " 18
U.S.C. § 3161(h)(7)(B)(i); (2) whether due to the nature
of the case (or other factors, including the number of
defendants) the case is too complex to reasonably expect
adequate preparation within the time limits, 18 U.S.C. §
3161(h)(7)(B)(ii); or (3) whether a refusal to continue the
case would deny the defendant "reasonable time to obtain
counsel" or would unreasonably deny either party
"the reasonable time necessary for effective
preparation, " 18 U.S.C. § 3161(h)(7)(B)(iv). The
court may not, however, grant a continuance "because of
general congestion of the court's calendar." 18
U.S.C. § 3161(h)(7)(C).
Supreme Court has interpreted these provisions to mean that
"the Act requires express findings, " which must be
made on the record. See Zedner v. United States, 547
U.S. 489, 506-07 (2006). Likewise, we have previously
instructed, "[w]hen considering such a continuance, the
trial court must make explicit findings regarding why
granting the continuance will strike a proper balance between
the ends of justice and the best interest of the public and
the defendant in a speedy trial." United States v.
Occhipinti, 998 F.2d 791, 797 (10th Cir. 1993). But we
have further explained, "[i]n setting forth its
findings, however, the district court need not articulate
facts 'which are obvious and set forth in the motion for
the continuance itself.'" Id. (quoting
United States v. Lattany, 982 F.2d 866, 879 (3d Cir.
1992)). And we have clarified that "[i]n determining
whether the district court relied on sufficient facts in
granting an ends-of-justice continuance, we can look to
'the oral and written statements of both the district
court and the moving party.'" United States v.
Loughrin, 710 F.3d 1111, 1119 (10th Cir. 2013) (quoting
United States v. Toombs, 574 F.3d 1262, 1271 (10th
considering whether there are sufficient ends-of-justice
findings in the record, we have distinguished between (1)
cases where the record "contain[s] an explanation of why
the mere occurrence of the event identified by the party as
necessitating the continuance results in the need for
additional time" and (2) those where the record contains
"only short, conclusory statements lacking in
detail." See Toombs, 574 F.3d at 1271. While
findings of the former type are generally adequate to satisfy
the requirements of the Speedy Trial Act, the latter are not.
Occhipinti, for example, we held the court's
findings comported with the Speedy Trial Act, based on both
the court's findings in its written order and the
statements of the government, the moving party. In its motion
for a continuance, the government explained it had three
upcoming trials scheduled and thus would not be able to
prepare for the instant trial without additional time. 998
F.2d at 797. The district court granted the motion, finding
"that a continuance was necessary to allow the
government sufficient time to prepare" and stating in
its written order that "the period of delay resulting
from the continuance granted pursuant to this Order shall be
excludable time as provided in 18 U.S.C. § ...