UNITED STATES OF AMERICA vs. SHAWN PEARCE v. Arbelaez, 7 F.3d 344 3d Cir. 1993 . In addition

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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 03-2892
UNITED STATES OF AMERICA
vs.
SHAWN PEARCE,
Appellant
____________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
(D.C. Crim No. 00-cr-00709-1)
District Judge: Honorable Franklin S. Van Antwerpen
____________
Submitted Under Third Circuit L.A.R. 34.1(a)
November 16, 2004
Before: ROTH, SMITH and WEIS, Circuit Judges.
(Filed: December 1, 2004)
OPINION
WEIS, Circuit Judge.
Defendant pleaded guilty to five counts of an indictment arising from two
instances of armed robbery of a jewelry store. The prosecution and the defendant entered

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into a written plea agreement that called for a specific sentence of 30 years incarceration
and 5 years of supervised release.
On appeal, defendant contends that the delay between his indictment and
the date of trial was unreasonable under the Constitution and violated the Speedy Trial
Act, 18 U.S.C. § 3161 et seq. In addition, he asserts that his sentence of 360 months was
cruel and unusual punishment in violation of the Eighth Amendment.
Defendant was first indicted on November 30, 2000 and was the subject of
a second superseding indictment on April 26, 2001. Contrary to the defendant’s
assertions, the District Court did not err when it excluded that time period against the
Speedy Trial Act’s limitations. See 18 U.S.C. § 3161(h)(7). Moreover, the District Court
properly considered the time required for disposition of motions, a continuance granted so
that new counsel could prepare for trial and other matters when it denied a motion
alleging a violation of the Speedy Trial Act. See, e.g., United States v. Arbelaez, 7 F.3d
344 (3d Cir. 1993).
In addition, defendant waived his Speedy Trial Act defense because he did
not reserve the right to challenge those rulings when he pleaded guilty.
Accordingly, we conclude that the defendant’s challenge to the District
Court’s ruling on the Speedy Trial Act must be rejected.
Additionally, the defendant’s complaint about the length of his sentence
lacks merit. The statutory maximum on certain counts of the indictment was life

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imprisonment with a mandatory minimum of 32 years incarceration. Defendant now
contends that he would have received a lesser sentence in the Pennsylvania state courts
for the same offenses. Even if that claim were valid, it is irrelevant to the federal
sentence imposed.
A defendant who enters into a plea agreement may not disavow its
provisions on appeal. See, e.g., United States v. Khattek, 273 F.3d 557, 563 (3d Cir.
2001); United States v. Rodia, 194 F.3d 465, 469 (3d Cir. 1999). The crimes for which
defendant was sentenced were particularly brutal and amounted to conduct consistent
with an earlier conviction for a violent offense. The sentence imposed here was not so
draconian as to amount to cruel and unusual punishment.
The judgement of the District Court will be affirmed.

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