United States of America v. Virgil Smith

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
On Remand from the U.S. Supreme Court
Submitted July 19, 2006
Decided August 3, 2006
Before
Hon. KENNETH F. RIPPLE, Circuit Judge
Hon. DIANE P. WOOD, Circuit Judge
Hon. TERENCE T. EVANS, Circuit Judge
No. 04-1771
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
VIRGIL SMITH,
Defendant-Appellant.
Appeal from the United States
District Court for the
Northern District of Indiana,
Fort Wayne Division
No. 1:03-CR-6
Theresa L. Springmann, Judge.
O R D E R
In United States v. Smith, 415 F.3d 682 (7th Cir. 2005), we affirmed Virgil
Smith’s conviction of one count of aiding and abetting an armed bank robbery in
violation of 18 U.S.C. § 2113(a) and (d) and 18 U.S.C. § 2, and one count of aiding and
abetting in the use of a firearm, during and in relation to a bank robbery, in violation
of 18 U.S.C. § 924(c) and 18 U.S.C. § 2. In so doing, we found that the district court
violated Smith’s right to a speedy trial as guaranteed by the Speedy Trial Act, 18
U.S.C. § 3161, but that the violation was harmless. Smith, 415 F.3d at 686. After a
limited remand in accordance with United States v. Paladino, 401 F.3d 471, 483-84
UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53

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No. 04-1771 Page 2
(7th Cir. 2005), we affirmed Smith’s 221-month sentence as well. United States v.
Smith, 2006 WL 1506815 (unpublished order) (June 1, 2006).
Smith filed a petition for certiorari. The Supreme Court granted his petition,
vacating our judgment and remanding Smith’s case back to us for further consideration
in light of Zedner v. United States, 126 S.Ct. 1976 (2006), which holds that “harmless-error
review is not appropriate” in the Speedy Trial Act context, id. at 1990. Smith v. United
States, 126 S.Ct. 2859 (2006). Although Zedner was concerned with an “ends of justice”
extension of the time for trial, granted under § 3161(h)(8), and Smith’s case concerns
the question whether a motion was “actually under advisement by the court,” for
purposes of § 3161(h)(1)(J), we see no principled difference between the two for
purposes of harmless error review. The language of the Speedy Trial Act is just as
mandatory for one subsection of § 3161(h) as it is for the others, and there is nothing
in the Act that suggests that the command of § 3161(c) setting forth the time in which
trial “shall” begin depends on which exception is invoked.
In accordance with Circuit Rule 54, we requested that both parties file position
statements as to what action we ought to take on remand. Both parties take the
position that Zedner’s holding controls Smith’s case too, and that Smith’s conviction
should be reversed and his sentence vacated. We agree. All that remains is to remand
this case to the district court to determine, in accordance with 18 U.S.C. § 3162(a)(2),
whether to dismiss Smith’s case with or without prejudice.
Accordingly, we REVERSE Smith’s conviction, VACATE his sentence, and REMAND
to the district court for further proceedings consistent with this order.

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