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United States v. Cortes-Gomez

United States Court of Appeals, Tenth Circuit

June 12, 2019

UNITED STATES OF AMERICA, Plaintiff - Appellee,

          Appeal from the United States District Court for the District of Kansas (D.C. No. 5:16-CR-40091-DDC-1)

          Ryan A. Ray, Norman Wohlgemuth Chandler Jeter Barnett & Ray, Tulsa, Oklahoma, for Defendant-Appellant.

          James A. Brown, Assistant United States Attorney (Stephen R. McAllister, United States Attorney, with him on the brief), District of Kansas, Topeka, Kansas, for Plaintiff-Appellee.

          Before HARTZ, SEYMOUR, and HOLMES, Circuit Judges.

          SEYMOUR, Circuit Judge.

         On January 13, 2016, Marco Antonio Cortes-Gomez was indicted with two codefendants on counts related to a methamphetamine conspiracy ("Cortes-Gomez I"). His trial began on November 29, 2016. The interim included two superseding indictments, dismissal of the indictment and the filing of a new one with identical charges ("Cortes-Gomez II"), the addition of two codefendants, and various continuances and delays that the district court found to be excluded under the Speedy Trial Act of 1974, 18 U.S.C. § 3161 et seq. ("STA"). Ultimately, 329 days passed between Mr. Cortes-Gomez's arraignment and the beginning of his trial.

         A jury found Mr. Cortes-Gomez guilty on both counts. He appeals, contending that the delay between his arraignment and trial violated his statutory and constitutional rights to a speedy trial. He also challenges the district court's refusal to provide his requested jury instruction regarding accomplice testimony and its application of two sentencing enhancements. We affirm.


         Only the procedural facts relevant to our analysis are recounted here. Mr. Cortes-Gomez, Ms. Juanita Garcia, and Ms. Brenda Sanders were indicted on January 13, 2016 for their respective involvement in a conspiracy to distribute methamphetamine. Trial was initially set for March 29, 2016, then continued to April 6, then to July 19. Both Ms. Sanders and Ms. Garcia entered guilty pleas, but two additional codefendants were included in the first superseding indictment on March 29: Mr. James Ross and Mr. Robert Worthington. On May 19, Mr. Worthington was the last codefendant arrested and arraigned.

         On June 21, the district court granted Mr. Worthington an "ends-of-justice" continuance under 18 U.S.C. § 3161(h)(7)(A), setting a new trial date of October 11. The court made written findings to justify this delay, including the need to allow counsel for Mr. Worthington and Mr. Ross adequate time to prepare for trial. The court declined to calculate Mr. Cortes-Gomez's Speedy Trial Act deadline until it ruled on his renewed motion to sever, which it then denied on July 19. At that time, the district court excluded two intervals from Mr. Cortes-Gomez's STA clock which are the subject of this appeal: (1) the time between defendant's arraignment and that of his last codefendant, Mr. Worthington (January 21 to May 19), and (2) the delay stemming from Mr. Worthington's ends-of-justice continuance (July 19 to October 11). Mr. Cortes-Gomez repeatedly and zealously asserted his rights to a speedy trial, including moving for severance from his codefendants on two separate occasions.

         Mr. Cortes-Gomez's trial began on November 29 and all four of his former codefendants testified against him. Each co-conspirator testified about entering into plea agreements with the government and/or expecting to benefit by testifying against defendant. Mr. Cortes-Gomez requested a specific jury instruction for evaluating accomplice testimony, but the district court rejected it in favor of this court's pattern instruction.

         Mr. Cortes-Gomez was convicted by the jury on both counts. At sentencing, the district court overruled his objections to the two sentencing enhancements applied in the Presentence Investigation Report ("PSR"): a four-point enhancement for being the organizer or leader of the enterprise and a two-point enhancement for engaging in criminal conduct as his livelihood. The PSR determined defendant's enhanced offense level to be 44, with a guideline imprisonment sentence of life. The district court varied below the guideline range to avoid an unwarranted sentencing disparity between defendant and his co-conspirators, sentencing Mr. Cortes-Gomez to concurrent sentences of 240 months imprisonment on Count 1, conspiracy to possess with intent to distribute methamphetamine, and 294 months imprisonment on Count 2, attempted possession with intent to distribute 500 grams or more of methamphetamine.

         Mr. Cortes-Gomez raises several issues on appeal, and we address each one in turn.



         We review the district court's compliance with the legal requirements of the Speedy Trial Act de novo and its factual findings for clear error. United States v. Larson, 627 F.3d 1198, 1203 (10th Cir. 2010). "When the statutory factors are properly considered, and supporting factual findings are not clearly in error, the district court's judgment of how opposing considerations balance should not lightly be disturbed." United States v. Vogl, 374 F.3d 976, 982 (10th Cir. 2004) (brackets and citation omitted).[1] Likewise, "[w]e review a defendant's claim under the Sixth Amendment's Speedy Trial Clause de novo, accepting the ...

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