United States of America, Plaintiff-appellee, v. William L. Johnson, Sr., Defendant-appellant, 959 F.2d 237 (6th Cir. 1992)

Before RALPH B. GUY, Jr. and BATCHELDER, Circuit Judges, and SPIEGEL, District Judge.^* 

ORDER

William L. Johnson, Sr., appeals his judgment of conviction for possessing with intent to distribute cocaine, cocaine base and marijuana and carrying and using a firearm during and in relation to a drug trafficking crime following a jury trial in the district court. This case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination, this panel unanimously agrees that oral argument is not needed. Fed. R. App. P. 34(a). As counsel for neither party has filed a request for oral argument pursuant to Rule 9(d), Rules of the Sixth Circuit, both parties are deemed to have waived oral argument.

In 1989, Johnson was indicted of the above-noted crimes. Following various pre-trial motions, Johnson entered into a non-conditional guilty plea in March 1990. However, Johnson withdrew his guilty plea in August 1990. A jury subsequently found Johnson guilty as to all counts of the indictment. The district court sentenced Johnson to one hundred and fifty-two months imprisonment. Johnson has filed a timely appeal challenging his conviction.

Upon review, we affirm the district court's judgment. First, we note that Johnson's Fourth Amendment rights were not violated. The police officers properly searched Johnson pursuant to Terry v. Ohio, 392 U.S. 1, 27 (1968). See also United States v. Lane, 909 F.2d 895, 899-900 (6th Cir. 1990), cert. denied, 111 S. Ct. 977 (1991).

Second, Johnson's rights under the Speedy Trial Act were not violated. Johnson's non-conditional guilty plea waived his right to appeal any violation of the Act prior to his guilty plea. Lebowitz v. United States, 877 F.2d 207, 209 (2d Cir. 1989); United States v. Andrews, 790 F.2d 803, 809-10 (10th Cir. 1986), cert. denied, 481 U.S. 1018 (1987). The time for trial under the Act commenced again when Johnson was allowed to withdraw his guilty plea. See 18 U.S.C. § 3161(i). He was subsequently tried within an appropriate period of time.

Accordingly, we affirm the district court's judgment. Rule 9(b) (3), Rules of the Sixth Circuit.