Submitted: January 12, 2018
from United States District Court for the Northern District
of Iowa - Dubuque
SMITH, Chief Judge, MELLOY and SHEPHERD, Circuit Judges.
SHEPHERD, CIRCUIT JUDGE.
appeal raises, primarily, two issues of interpretation. Frank
Washington argues that the district court erred in its
interpretation of the Speedy Trial Act and crafted an
unconstitutionally vague condition of supervised release. We
agree with the latter challenge, but disagree with the former
assertion. We also disagree with Washington's only other
claim on appeal-that his sentence was substantively
unreasonable. Thus, we affirm in part and remand narrowly for
the district court to reconsider the challenged special
underlying facts are relatively straightforward. Washington
was arrested at his residence on June 9, 2016 on the basis of
a complaint that alleged possession with intent to distribute
marijuana. See 21 U.S.C. § 841(a)(1). Just over
a month later-33 days to be precise-a grand jury charged
Washington with possession with intent to distribute within
1000 feet of a school. See id. §§
841(b)(1)(D), 860(a). Washington made his initial appearance
on the indictment on October 3, 2016. Shortly thereafter, he
moved to dismiss the indictment because of Speedy Trial Act
violations. See 18 U.S.C. §§
3161-3174. The district court denied that motion.
Washington then went to trial. After three days of
deliberation, the jury returned a guilty verdict. At
sentencing, Washington's advisory Sentencing Guidelines
range was set at 21 to 27 months imprisonment. The district
court eventually sentenced him to 27 months imprisonment with
four years of supervised release. The term of supervised
release included a special condition with respect to gang
association and activity (Special Condition #3).
appeal, Washington challenges the district court's ruling
on his Speedy Trial Act claim, the substantive reasonableness
of his sentence, and Special Condition #3. We address each in
Speedy Trial Act was passed by Congress "to give effect
to the [S]ixth [A]mendment right" to a speedy trial.
Betterman v. Montana, 136 S.Ct. 1609, 1616 (2016)
(internal quotation marks omitted). On appeal, Washington
argues that the government violated the Act's direction
that "no more than 30 days pass between arrest and
indictment," id., given 33 days passed between
his arrest and indictment. When the government runs afoul of
this timeframe, the Act sanctions the government by stating:
"such charge . . . contained in such complaint
shall be dismissed or otherwise dropped." 18 U.S.C.
§ 3162(a)(1) (emphasis added). As noted above, the
complaint and indictment in this case charged two different
offenses. Sensing the textual barrier to his desired remedy,
dismissal of the indictment, Washington urges adoption of the
so-called "gilding exception." In theory, but not
often in practice, this doctrine allows dismissal under the
Act where "a [later] charge is one that merely annotates
in more detail the same charge alleged in the
[complaint]." See United States v. Bailey, 111
F.3d 1229, 1236 (5th Cir. 1997). The district court declined
to apply the gilding exception, but noted that our circuit
has yet to speak definitively on its validity. We review the
district court's legal conclusion de novo. United
States v. Herbst, 666 F.3d 504, 509 (8th Cir. 2012).
that there is no gilding exception to the Speedy Trial Act.
Our prior holdings-while not taking the gilding exception
head on-seemingly foreclose its application to the Speedy
Trial Act. See, e.g, United States v.
Miller, 23 F.3d 194, 199 (8th Cir. 1994) ("A
defendant's arrest on one charge does not necessarily
trigger the right to a speedy trial on another charge filed
after his arrest."). More importantly, those holdings
are in line with the text of the statute. Again, the Act only
permits dismissal of "such charge . . . contained in
such [earlier] complaint." 18 U.S.C. § 3162(a)(1).
Given the unambiguous wording of the statute, it should
hardly come as a surprise that courts recently "have
questioned [the gilding exception's] doctrinal
validity" as applied to the Speedy Trial Act. United
States v. Trudeau, 812 F.3d 578, 587 (7th Cir.),
cert. denied, 137 S.Ct. 566 (2016). We decline to
read a "gilding exception" into clear statutory
language. Cf. Henson v. Santander Consumer USA Inc.,
137 S.Ct. 1718, 1726 (2017) ("[T]he proper role of the
judiciary . . . [is] to apply, not amend, the work of the
believes this would provide a perverse incentive to the
government. At oral argument, it was suggested that the
government could wait "a day, a month, a year, two years
and simply get around the Speedy Trial Act by adding a
protected zone location." But, the solution to that
hypothetical scenario is not to "do violence to the
statutory language" in the Speedy Trial Act.
Jennings v. Rodriguez, 138 S.Ct. 830, 848 (2018)
(internal quotation marks omitted). Instead, protection may
lie in the Sixth Amendment right to a speedy trial-a
constitutional right distinct from the Act. United States
v. Shepard, 462 F.3d 847, 863 (8th Cir. 2006)
("Sixth Amendment and Speedy Trial Act challenges for
delay are reviewed independently of one another."
(internal quotation marks omitted)). Given that it was not
briefed before us, we do not examine whether the Sixth
Amendment was violated here.
even if we were to recognize a gilding exception to the
Speedy Trial Act, that would not lead to the dismissal of
Washington's indictment. The majority of our sister
circuits that have considered the question have agreed that a
later-indicted charge which contains different elements than
the charge in the initial complaint is not subject to
dismissal under the gilding exception. This is in line
"with Supreme Court precedent analyzing multiple
prosecutions." Bailey, 111 F.3d at 1236. Here,
the indicted crime required an additional element-evidence
that Washington was within 1000 feet of a school-beyond the
original possession with intent to distribute charge in the
complaint. The doctrine, as widely understood, does not offer
support for Washington's claim.
argument fares no better under a minority view of the gilding
exception. This view, most prominently adopted by the Tenth
Circuit, places emphasis on the underlying factual
allegations. See United States v. Andrews, 790 F.2d
803, 809 (10th Cir. 1986) (dismissing superseding indictment
because it "allege[d] no facts different" than
previous charging instrument); see also United States v.
Peppin, 365 F.Supp.2d 261, 269 (N.D.N.Y. 2005) (finding
that gilding exception may apply even when "new charges
contain additional elements"). Even under this view, the