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United States v. Nevarez.

No. 21-1286. 12/19/2022. D.Colo. Judge Baldock. Speedy Trial Act—COVID-Related Time Delay—US Sentencing Guidelines—Offense Level Reduction for Acceptance of Responsibility.

December 19, 2022

In 2019, Nevarez was charged with possession with intent to distribute methamphetamine. His case was delayed numerous times due to pretrial continuances and the COVID-19 pandemic. Nevarez’s case proceeded to trial in 2021 and he conceded possession of methamphetamine, so the government only had to prove intent to distribute. A jury convicted him as charged.

On appeal, Nevarez argued that his conviction should be reversed and his indictment dismissed based on a Speedy Trial Act (Act) violation because the district court erroneously granted the government’s motion to exclude COVID-related time delays from the Act’s time restrictions. Under 18 USC § 3161(c)(1), the Act requires the district court to try a defendant’s case within 70 days of either indictment or first appearance, whichever is later, subject to certain exceptions and exclusions. The defendant has the burden to move for dismissal of an indictment, and an actual Act violation must exist when the motion is made, so the motion must not be premature. Here, at a status conference on February 17, 2021, defense counsel raised an Act violation. However, both parties agreed that when the status conference was held, the Act’s deadline had been tolled through February 18, 2021. Accordingly, Nevarez’s purported motion was premature, and he waived his challenge under the Act.

Nevarez alternatively argued that his case should be remanded for resentencing because the district court erred by denying him a two-level offense reduction under US Sentencing Guideline § 3E1.1(a) for accepting responsibility for methamphetamine possession. Nevarez maintained that his case is one of the “rare situations” where the adjustment is appropriate because he accepted responsibility for his criminal conduct by contesting only the intent to distribute charge. There are “rare situations” where the § 3E1.1(a) adjustment is appropriate, which include going to trial on issues that do not relate to guilt, such as challenging the constitutionality of a statute. However, the weight of precedent does not favor sentencing adjustments under § 3E1.1. Further, determination of acceptance of responsibility is a question of fact, and courts defer to the sentencing judge’s resolution of the issue in all but the most unusual circumstances. Here, Nevarez objected to the presentence report (PSR) because it did not include a two-level reduction. The district court noted that in defending the simple possession charge, Nevarez specifically denied one of the crime’s chief material elements. The court made a factual finding that Nevarez was not entitled to the offense-level reduction and found that the PSR was correct. In addition, Nevarez’s contention that the district court erred by not considering the alternate policy rationale that court decisions should promote conduct by defendants that eases the jury’s burden fails because it is unsupported in the US Sentencing Guidelines. Therefore, the district court did not err.

The judgment was affirmed.

Official US Court of Appeals for the Tenth Circuit proceedings can be found at the US Court of Appeals for the Tenth Circuit website.

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