from the United States District Court for the District of
Kansas (D.C. No. 5:16-CR-40091-DDC-1)
A. Ray, Norman Wohlgemuth Chandler Jeter Barnett & Ray,
Tulsa, Oklahoma, for Defendant-Appellant.
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.
HARTZ, SEYMOUR, and HOLMES, Circuit Judges.
SEYMOUR, Circuit Judge.
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
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.
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.
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.
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
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.
Cortes-Gomez raises several issues on appeal, and we address
each one in turn.
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). Likewise, "[w]e review a
defendant's claim under the Sixth Amendment's Speedy
Trial Clause de novo, accepting the ...