120 S.W.3d 493 (2003)
FARMERS INSURANCE EXCHANGE, Appellant,
v.
Richard K. NEAL, Appellee.
No. 06-03-00026-CV.
Court of Appeals of Texas, Texarkana.
Submitted October 15, 2003.
Decided October 29, 2003.
Rehearing Overruled November 18, 2003.
Reid Wm. Martin, Sammons & Parker, PC, Tyler, for appellant.
Troy A. Hornsby, Miller, James, Miller & Hornsby, LLP, Texarkana, for appellee.
Before MORRISS, C.J., ROSS and CARTER, JJ.

OPINION
Opinion by Chief Justice MORRISS.
This appeal turns on whether two race cars, and associated automobile parts, owned by Richard K. Neal, were vehicles "used for recreational purposes" within the meaning of Neal's standard homeowners insurance policy issued by Farmers Insurance *494 Exchange (Farmers) or, more precisely, whether there was sufficient evidence presented at trial that they were so used. Because we find there is sufficient evidence supporting the trial court's judgment, we affirm.
Background
During the time period 1992 to 1996, Neal purchased two race carsa Boulton Supercomp Dragster and a Don Davis Super Gas Roadster. The race cars were kept on Neal's residence premises in a building used as a workshop, garage, and storage facility. In December 1996, the race cars were destroyed when the building burned, leaving nothing of residual salvage value. Shortly after the fire, Neal filed a claim under his homeowners insurance policy, and Farmers paid the portion of his claim representing the building and some personal property. Farmers, however, refused to pay the remainder of Neal's claim, arguing that the destroyed race cars and related components (e.g., a Barry Grant fuel pump and Chuck Nuytten alcohol carburetor) were expressly excluded under Neal's policy. Neal subsequently sued Farmers, seeking compensation for the loss of the disputed property as well as for statutory penalties and cleanup and removal costs. Following a bench trial in October 2002, a Titus County trial court ruled in favor of Neal, ordering Farmers to pay $119,733.15.[1] Farmers now appeals, questioning the legal and factual sufficiency of the trial court's determination that Neal's two race cars were covered under his homeowners insurance policy.
Standard of Review
When reviewing a trial court's findings for legal and factual sufficiency, appellate courts should apply the same standards that would be used in reviewing evidence supporting a jury's findings. Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex.1994). Recognizing that "findings of fact issued in a bench trial have the same force and dignity as a jury's verdict," we note that the trial court's findings "are not conclusive when there is a complete statement of facts in the record." Tucker v. Tucker, 908 S.W.2d 530, 532 (Tex.App.-San Antonio 1995, writ denied). In such a situation, appellate courts are not bound by the trial court's findings, id., but may overturn them only if, after weighing all the evidence in the record, they "are so against the great weight and preponderance of the evidence as to be clearly wrong and unjust." Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex.1996).
A trial court's conclusions of law are always reviewable. Westech Eng'g, Inc. v. Clearwater Constructors, Inc., 835 S.W.2d 190, 196 (Tex.App.-Austin 1992, no writ). They "will be upheld on appeal if the judgment can be sustained on any legal theory supported by the evidence" and, unless erroneous as a matter of law, will not be reversed. Id. In conducting a de novo review, appellate courts may reexamine for correctness legal conclusions drawn from specific findings of fact contained in the record, id. at 196 & n. 1, and exercise their own judgment on each issue, affording no deference to the original tribunal's decision. Quick v. City of Austin, 7 S.W.3d 109, 116 (Tex.1999).
*495 Recreational Purposes?
To determine this coverage question, we must carefully examine the policy language underlying the dispute. Insurance policies are contracts subject "to the same rules of construction as other contracts," and "[o]ur primary goal, therefore, is to give effect to the written expression of the parties' intent." Balandran v. Safeco Ins. Co. of Am., 972 S.W.2d 738, 740 (Tex.1998). In interpreting an insurance policy, it will be "construed liberally in favor of the insured and strictly against the insurer, especially when ... dealing with exceptions and limitations." Cont'l Cas. Co. v. Fina Oil & Chem. Co., ___ S.W.3d ___, No. 01-02-00449-CV, 2003 WL 21470362, 2003 Tex.App. LEXIS 5353 (Tex.App.-Houston [1st Dist.] June 26, 2003, no pet.) (citing Gonzalez v. Mission Am. Ins. Co., 795 S.W.2d 734, 737 (Tex. 1990)).
Although Neal and Farmers agree that the contract language is unambiguous, each party urges this Court to adopt a different interpretation. The policy itself expressly excludes from coverage any "motor or engine propelled vehicles or machines designed for movement on land, including attached machinery or equipment." As a limited exception to this provision, the policy also provides coverage for certain vehicles that (1) "are not subject to motor vehicle registration" and (2) are "vehicles or machines used for recreational purposes while located on the residence premises." (Emphasis omitted.) Because there is no disagreement that Neal's race cars were not subject to motor vehicle registration, the difference in the parties' interpretations results from the wording of the exception's second element. Neal contends the policy covers vehicles used for recreational purposes as long as they are on the premises at the time of the loss, while Farmers contends the policy covers vehicles used for recreational purposes so long as such recreational use occurs on the residence premises. After briefing the location issue in that fashion, Farmers conceded at oral argument that otherwise covered vehicles do not become uncovered because their recreational use occurs off premises. We agree, and now focus on the recreational component of the coverage issue.
That parties may advance conflicting interpretations of a contract does not necessarily mean the contract is, in fact, ambiguous. Columbia Gas Transmission Corp. v. New Ulm Gas, 940 S.W.2d 587, 589 (Tex.1996). The contract must be examined as a whole in order to ascertain whether there is only one reasonable interpretation, permitting a court to provide "a definite or certain meaning as a matter of law." Id. The pertinent contract language at issue states: "[W]e do cover ... vehicles... used for recreational purposes...." (Emphasis omitted.) We now examine this statement in light of the contract as a whole and determine whether the exception is broad enough to include Neal's race cars.
Farmers maintains that Neal's race cars were excluded from coverage because they were not "vehicles used for recreational purposes" in the context of the exception to the policy's general exclusion of motor vehicles. Recreation is generally defined as "refreshment by means of some pastime, agreeable exercise, or the like," or as "a pastime, diversion, exercise, or other resource affording relaxation and enjoyment." The Random House Dictionary of the English Language 1613 (2d ed.1987). Neal's position is that because he drove and worked on his race cars for fun, or as a diversion or hobby, his activities with respect to the cars conform to this general definition. In other words, because Neal's race cars were used as a means of refreshment *496 or diversion, it is the equivalent of saying they were used for recreational purposes.
Attempting to strengthen this argument, Neal cites City of Bellmead v. Torres, in which the Texas Supreme Court noted that the Legislature's definition of "recreational purposes" included "activities such as hunting, fishing, swimming, boating, camping, picnicking, hiking, pleasure driving, nature study, water skiing and water sports." City of Bellmead v. Torres, 89 S.W.3d 611, 613 (Tex.2002) (emphasis added). We find wholly unpersuasive Neal's comparison of the Legislature's use of "pleasure driving" to the only activities for which Neal's race cars are suited. It is highly unlikely that the Legislature, when using the term "pleasure driving," envisioned individuals "screaming" down a straight, quarter-mile stretch of pavement. It seems incongruous to think of these vehicles as being driven for pleasure. One of Neal's race cars, for example, has a 230-inch wheelbase; can only burn methanol or high-octane automotive fuel; has only two speeds: idle or "wide open" (i.e., the car either idles or travels at speeds approaching 165 miles per hour); has an extremely limited turning radius, as it is designed to travel in a straight line; requires coolant and fuel to be replenished after every quarter mile; and must be stopped by parachute. Neal's own testimony reveals that, if the car was driven even for a mile or two, its transmission would "blow up."
While not in itself dispositive, it is instructive to note other types of motor- or engine-propelled vehicles that are specifically excepted from the policy's general exclusion in order to determine whether the race cars described above could possibly have been contemplated by the parties. Excepted, for example, are devices for assisting the handicapped, power mowers, golf carts, and farm equipment. It is highly unlikely that Neal's race cars would normally be included in the same category as these less mechanically sophisticated (and much less expensive and dangerous) vehicles; however, the additional phrase characterizing excepted vehicles as those "used for recreational purposes" still suggests the possibility of coverage.
One difficulty with Neal's application of the general definition of recreation to the facts in this case is that it invites use of a substantially subjective test. We recognize that, although there are many categories of activities generally recognized as recreational, to adopt a definition of recreation that includes any activity one enjoys would undermine any purposeful exclusion of property as inevitably must be considered in the context of homeowners insurance coverage. To some, even an activity as mundane as gardening may be considered recreational; to others, gardening may be viewed as an interminably tiresome chore. Similarly, while Neal undoubtedly enjoyed working on, maintaining, and racing his cars, it is just as likely that others would consider such activities unpleasant, tedious, and hazardousnot recreational.
If we were to adopt a definition as global as Neal suggests, it would be particularly significant that even Neal's characterizations of his race cars were not altogether consistent. The record indicates that, during the four tax years from 1992 through 1995, Neal himself categorized his race cars as being used for business purposes and, while depreciating their value in each of the four tax years, conspicuously failed to include them in Part V of IRS Form 4562, which asks taxpayers to list, among other things, automobiles, other vehicles, and property used for entertainment, recreation, or amusement. This, however, is only some evidence against Neal's position *497 that he used his race cars for recreational purposes.
Although reasonable minds may differ in their view of what constitutes a recreational activity or, more specifically, what is encompassed in the phrase "vehicles used for recreational purposes," it is Farmers' unfortunate position to have state-approved or state-promulgated forms[2] to use in its homeowners policies that employ that rather elastic language. Not only are exceptions and limitations to coverage generally construed strictly against the insurer and in favor of the insured, Hallman v. Allstate Ins. Co., 114 S.W.3d 656, 660 (Tex.App.-Dallas, 2003, no pet.), but courts must also "adopt the construction of an exclusionary clause urged by the insured as long as that construction is not unreasonable, even if the construction urged by the insurer appears to be more reasonable or a more accurate reflection of the parties' intent." Nat'l Union Fire Ins. Co. v. Hudson Energy Co., 811 S.W.2d 552, 555 (Tex.1991). Although we are not bound by the trial court's findings, we may overturn them only if, after weighing all the evidence in the record, we determine they are "so against the great weight and preponderance of the evidence as to be clearly wrong and unjust." Ortiz, 917 S.W.2d at 772.
Neal testified he and his son took the dragster to the races during the warmer months of the year as a "recreational activity," before preparing for hunting season. Neal also testified that, during the cooler months, he and his son would work on their cars as a father and son activity and would "play with them, monkey with them, tinker with them ... for enjoyment," "for fun," and "for recreational purposes." Neal's wife agreed with the "recreational purposes" categorization of the activity. Neal testified that, in season, the family would take the dragster to races approximately once a month, depending on the family budget; that, although he did win money on occasion, he never won enough in any race to pay the expenses he and his family incurred in getting to and participating in it, and that he justified the loss of money because he considered it "recreational activity." Neal described two categories of participants on the racing scene, "Sportsman," into which he and other hobbyists and part-timers fell, and "Professional," consisting of those who raced as a business. He noted that, in contrast to Neal's racing practices, the business racers treat racing like a job, working on it "every day of the week" and going to all the races they can find.
We are called on to determine whether, considering the evidence as a whole, the trial court's finding of recreational use was against the great weight and preponderance of the evidence. We conclude the evidence was sufficient to support the trial court's finding that Neal's race cars were used for "recreational purposes," within the common meaning of that phrase, that is, for "refreshment by means of some pastime," or as "a pastime, diversion, exercise, or other resource affording relaxation and enjoyment." Random House Dictionary, pg. 1613.
Intentional Misrepresentation?
Farmers also contends that Neal's policy was void because Neal intentionally concealed or misrepresented material facts or circumstances. Specifically, Farmers contends Neal intentionally concealed the existence of the race cars because he did not own them at the time he purchased his insurance policy and failed to affirmatively disclose to Farmers that he subsequently purchased the cars and was storing them *498 on the residence premises. The record itself contains no evidence Neal intended to conceal or misrepresent material facts in an effort to defraud Farmers. On the contrary, the record reflects that, on at least two occasions, Neal contacted Farmers with information he thought relevant to the policy in question, thinking that adjustments to the policy might be necessary. Farmers was certainly entitled to be informed of the existence of this highly unusual property, but we find there was sufficient evidence to support the trial court's conclusion that Neal's failure to report the purchase did not amount to intentional concealment, misrepresentation, or fraud.
We, therefore, affirm the judgment of the trial court.
NOTES
[1]  The court ordered Farmers to pay Neal $42,017.00 in damages, $41,854.40 as a penalty for noncompliance with Article 21.55 of the Texas Insurance Code (calculated at eighteen percent per annum from March 27, 1997 to October 8, 2002), $21,857.49 in prejudgment interest (calculated at ten percent per annum from July 26, 1997 to October 8, 2002), and $14,004.26 in attorney's fees. See Tex. Ins.Code Ann. art. 21.55 (Vernon Supp. 2003). The court also ordered postjudgment interest on the total judgment of $105,728.89 (excluding attorney's fees) to be calculated at ten percent per annum from October 8, 2002.
[2]  See Tex. Ins.Code Ann. art. 5.35 (Vernon Supp.2003).


498 So.2d 557 (1986)
Patrick J. MORGANTI, Appellant,
v.
STATE of Florida, Appellee.
No. 4-86-0338.
District Court of Appeal of Florida, Fourth District.
November 26, 1986.
*558 Richard L. Jorandby, Public Defender, and Gary Caldwell, Asst. Public Defender, West Palm Beach, for appellant.
Jim Smith, Atty. Gen., Tallahassee, and Lee Rosenthal, Asst. Atty. Gen., West Palm Beach, for appellee.
DELL, Judge.
Appellant seeks reversal of orders denying his motion to suppress evidence, revoking his probation, sentencing him as an habitual offender, and imposing costs.
The Hollywood police were called to investigate a disturbance at the Pizza King restaurant. Restaurant patrons told the officers that the four men involved in the disturbance had just left the building and were getting into their car. The officers saw appellant and his three companions in a car parked in the restaurant's parking lot. The officers checked the identification of the men and arrested two of them on outstanding felony warrants. When one of the officers received information that appellant may have been involved in a DEA shooting incident some years ago, the officers ordered him to submit to a weapons search. Appellant threw a rolled dollar bill to the ground as he turned toward the car. The police determined that the dollar bill contained PCP residue.
The Department of Corrections charged appellant with violation of his probation by: possession of PCP, a controlled substance; failure to pay $40 in supervision costs; failure to submit to an evaluation for substance abuse treatment; and failure to pay $80 towards his public defender fee. Appellant contends that the trial court erred when it denied his motion to suppress the dollar bill containing PCP residue and revoked his probation; when it sentenced him to thirty years in prison as an habitual offender; and when it taxed costs against him of $200 pursuant to section 27.3455 and $17 pursuant to sections 960.20 and 943.25, Florida Statutes (1985).
We are satisfied that the record contains sufficient evidence to support the trial court's order denying appellant's motion to suppress. The police did not order appellant to submit to a weapons search until after they learned that two of appellant's companions had outstanding felony warrants and that appellant may have been involved in a DEA shooting. These facts furnished a reasonable basis for the police officers' fear for their safety and justified their order directing appellant to submit to a weapons search. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). We also note that the police did not discover the dollar bill containing the PCP residue during the search of appellant's person. The police discovered it because appellant removed the dollar bill from his pocket and dropped it to the ground in an attempt to conceal his possession of it. We find no error in the trial judge's denial of appellant's *559 motion to suppress and subsequent revocation of his probation.
However, the trial court's written order of revocation of probation did not conform to its oral pronouncement. The trial judge announced that he was revoking appellant's probation based only on the charge of possession of PCP, a controlled substance. His written order recites all of the charges contained in the charging affidavit as the basis for revocation. Therefore, we remand this cause to the trial court with instructions to correct the order by striking the violations for failure to pay costs of supervision, failure to submit to evaluation for counseling and for failure to pay the public defender's fee. See Robinson v. State, 468 So.2d 1106 (Fla. 2d DCA 1985); Towson v. State, 382 So.2d 870 (Fla. 5th DCA 1980).
When the trial court sentenced appellant as an habitual offender, a conflict existed among the district courts of appeal concerning the relationship between the sentencing guidelines and the habitual offender statute.[1] The supreme court recently resolved this conflict in Whitehead v. State, 498 So.2d 863 (Fla. 1986):
In determining the continued viability of the habitual offender statute in light of the subsequently enacted sentencing guidelines, we recognize that we must attempt to preserve both statutes by reconciling their provisions, if possible. See State v. Digman, 294 So.2d 325 (Fla. 1974). We find that we cannot do so. In order to retain the habitual offender statute, we would have to conclude that either the sentencing guidelines are not applicable to "statutory" habitual offenders (i.e., those defendants whom the state seeks to punish pursuant to the specific provisions of section 775.084, Florida Statutes), or, if applicable, that the habitual offender statute may be used in and of itself as a legitimate reason to depart from the guidelines. We can find no logical support for either proposition.
Therefore we reverse the trial court's sentence under the habitual offender statute and remand this cause to the trial court with directions to resentence appellant as provided in the sentencing guidelines, Florida Rule of Criminal Procedure 3.701.
Next appellant argues that the trial court erred when it imposed $200 in costs against him pursuant to section 27.3455, Florida Statutes (1985) and when it assessed $17 in other costs pursuant to sections 960.20 and 943.25, Florida Statutes (1985). In Signorelli v. State, 491 So.2d 349 (Fla. 4th DCA 1986), we cited Yost v. State, 489 So.2d 131 (Fla. 5th DCA 1986) and held that application of section 27.3455 to a crime occurring prior to the effective date of the statute constituted a violation of the ex post facto clause. We reverse the order taxing $200 costs because appellant was charged with a crime that occurred before the effective date of section 27.3455. However, as we did in Signorelli v. State, we again certify to the Supreme Court of Florida as being a question of great public importance, the following:
DOES THE APPLICATION OF SECTION 27.3455, FLORIDA STATUTES (1985), TO CRIMES COMMITTED PRIOR TO THE EFFECTIVE DATE OF THE STATUTE VIOLATE THE EX POST FACTO PROVISIONS OF THE CONSTITUTIONS OF THE UNITED STATES AND OF THE STATE OF FLORIDA, OR DOES THE STATUTE MERELY EFFECT A PROCEDURAL CHANGE AS IS PERMITTED UNDER STATE V. JACKSON, 478 So.2d 1054 (FLA. 1955).
We also vacate the assessment of the $17 cost because the trial court failed to afford appellant notice and a hearing. Jenkins v. State, 444 So.2d 947 (Fla. 1984).
In summary, we affirm the order denying appellant's motion to dismiss and the *560 order revoking his probation based upon his possession of PCP, a controlled substance. We direct the trial court to delete from the order revoking probation the following reasons for revocation: appellant's failure to pay supervision costs, failure to submit to an evaluation for substance abuse treatment, and failure to pay $80 towards his public defender's fee. We reverse the order imposing costs in the amount of $200 pursuant to section 27.3455. We also reverse the order assessing $17 costs pursuant to sections 960.20 and 943.25 without prejudice to the state to seek imposition of those costs after appropriate notice and hearing as provided in Jenkins v. State.
AFFIRMED IN PART; REVERSED IN PART and REMANDED.
GUNTHER and STONE, JJ., concur.
NOTES
[1]  Massard v. State, 501 So.2d 1289 (Fla. 4th DCA 1986); Bouthner v. State, 489 So.2d 784 (Fla. 5th DCA 1986); Hale v. State, 490 So.2d 122 (Fla. 2d DCA 1986).


937 F.2d 816
UNITED STATES of America, Appellee-Cross-Appellant,v.Orville CEPHAS, a/k/a "Rennie", a/k/a "Bigga", Andrew White,Mark Lewin, a/k/a "Mark Lewis", Thomas, Barrett, Blythe, IanHarris, a/k/a "Blondie", Biggs, Nigel Blythe, a/k/a "NigelBlythe, a/k/a "Nigel Black", Diamond, Allen, Mike Taylor,a/k/a "Kinney", Defendants,Orville Cephas, Andrew White, Mark Lewin, Ian Harris, NigelBlythe, Michael Taylor, Defendants-Appellants,Cross-Appellees.
Nos. 1849 to 1855, Dockets 90-1318 to 90-1323 and 90-1369.
United States Court of Appeals,Second Circuit.
Argued June 3, 1991.Decided June 28, 1991.

Paul D. Silver, Asst. U.S. Atty. N.D.N.Y.  (Frederick J. Scullin, Jr., U.S. Atty. N.D.N.Y., John J. McCann, Asst. U.S. Atty., Mervyn Hamburg, Atty., Dept. of Justice, Washington, D.C., of counsel), for appellee-cross-appellant.
Oliver A. Smith, New York City, for defendant-appellant Mark Lewin.
John J. Doherty, Cohoes, N.Y., for defendant-appellant Andrew White.
Richard L. Mott, Albany, N.Y., for defendant-appellant Nigel Blythe.
Mark B. Harris, Albany, N.Y., for defendant-appellant Orville Cephas.
Roger D. Olson, Eckhaus & Olson, New York City, for defendant-appellant Ian Harris.
David J. Clegg, Kingston, N.Y., for defendant-appellant Michael Taylor.
Before OAKES, Chief Judge, and PRATT and ALTIMARI, Circuit Judges.
GEORGE C. PRATT, Circuit Judge:

1
These appeals arise from the convictions of six defendants involved in a major drug and firearms operation centered in Saratoga Springs, New York.  Defendant-appellants appeal from judgments of conviction entered in the United States District Court for the Northern District of New York, Con.  G. Cholakis, Judge.  They raise numerous issues on their appeals, all of which we have considered, but none of which merits reversal.  The government cross-appeals, claiming error in the sentencing.  We also find no merit in this claim.  Thus, we affirm the judgments of conviction in all respects.  Three of the issues warrant discussion:  (1) the detainer act issues raised by Harris and Taylor, (2) the speedy trial act issue raised by Cephas, and (3) the sufficiency of the indictment and bill of particulars issues raised by Harris.

BACKGROUND

2
The government filed a 31-count superseding indictment on June 28, 1988, charging twelve individuals, including the six appellants, with violations of federal drug and firearms laws.  Orville Cephas and Ian Harris were charged with engaging in a continuing criminal enterprise, in violation of 21 U.S.C. Sec. 848;  all the defendants were charged with conspiracy to possess crack cocaine, cocaine powder, heroin, and marijuana with intent to distribute, in violation of 21 U.S.C. Sec. 846;  various defendants were charged with distribution of cocaine powder or crack cocaine, in violation of 21 U.S.C. Sec. 841(a)(1);  and various defendants were charged with the use or carriage of a firearm in relation to drug trafficking, in violation of 18 U.S.C. Sec. 924(c).

3
Eight of the defendants charged in the indictment, including the six appellants, were tried jointly.  The jury acquitted two of all charges filed against them.  Ian Harris, Nigel Blythe, and Mark Lewin were convicted on all the charges filed against them.  Orville Cephas was acquitted of one of the counts charging him with distribution of cocaine powder or crack cocaine in violation of 21 U.S.C. Sec. 841(a)(1), but he was convicted of all the other charges brought against him.  Michael Taylor was acquitted of one of the counts charging him with use or carriage of a firearm in relation to drug trafficking in violation of 18 U.S.C. Sec. 924(c), but he was convicted of all the other charges brought against him.  Andrew White was acquitted of two of the counts charging him with distribution of cocaine powder or crack cocaine in violation of 21 U.S.C. Sec. 841(a)(1), but he was convicted of all the others.

DISCUSSION
A. Detainer Act Issues

4
Both the Interstate Agreement on Detainers Act, 18 U.S.C.App., pp. 585-620 (1985 ed.), (the "detainer act"), and the Speedy Trial Act of 1974, 18 U.S.C. Sec. 3161 et seq., (the "speedy trial act"), provide time frames in which the government must bring criminal defendants to trial.  The two acts contain differing time limits, use differing language, and have differing events to trigger the relevant clocks.  However, both acts allow their specified time limits to be tolled--the detainer act provides a general tolling provision, see 18 U.S.C.App., Art. III & IV, while the speedy trial act enumerates specific exclusions, see 18 U.S.C. Sec. 3161(h).  This case raises the general question of how the two acts are to be interpreted when they are both implicated, and more specifically, whether the events that trigger tolling periods under the two statutes should be the same.

5
In 1970, Congress enacted the detainer act for the purpose of " 'encourag[ing] the expeditious and orderly disposition of * * * charges [outstanding against a prisoner] and determination of the proper status of any and all detainers based on untried indictments, informations, or complaints.' "    United States v. Mauro, 436 U.S. 340, 343, 98 S.Ct. 1834, 1839, 56 L.Ed.2d 329 (1978) (quoting 18 U.S.C.App., Art. I).  The act contains two central provisions:  First, article III "provides a procedure by which a prisoner against whom a detainer has been filed can demand a speedy disposition of the charges giving rise to the detainer."    Mauro, 436 U.S. at 351, 98 S.Ct. at 1842.    If the prisoner requests a speedy disposition, the government must bring him to trial within 180 days.  Second, article IV "provides the means by which a prosecutor who has lodged a detainer against a prisoner in another State can secure the prisoner's presence for disposition of the outstanding charges."    Id.  The detainer act is implicated when the prosecutor files a detainer against a prisoner.  After a detainer is filed and the prosecutor, by presenting "a written request for temporary custody or availability", Art. IV(a), brings the prisoner to the receiving state for prosecution, the government must bring him to trial within 120 days.  Art. IV(c).

6
Both these provisions, however, allow the applicable time periods to be tolled:  "[F]or good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance."    18 U.S.C.App., Art. III(a) & IV(c).  To provide further understanding of the "for good cause shown" standard, Article VI states that "[i]n determining the duration and expiration dates of the time periods provided in articles III and IV of this agreement, the running of said time periods shall be tolled whenever and for as long as the prisoner is unable to stand trial, as determined by the court having jurisdiction of the matter."    18 U.S.C.App., Art. VI.

7
Five years after enacting the detainer act, congress enacted the speedy trial act, 18 U.S.C. Sec. 3161, et seq.    The central provision of the speedy trial act requires the government to bring a defendant to trial within 70 days from the date the information or indictment is filed or from the date the defendant appears before a judicial officer, whichever date last occurs.  18 U.S.C. Sec. 3161(c)(1).  Like the detainer act, the speedy trial act was also enacted to protect the defendant's interest in obtaining a prompt disposition of charges against him.  However, in addition to protecting the interests of a defendant, the purposes of the speedy trial act extend beyond those of the detainer act, and protect as well the interests of society and of the government in obtaining prompt disposition of criminal charges.

8
In enacting the speedy trial act, congress perceived strong policy reasons for requiring a defendant's trial within 70 days.  Yet it also provided a series of enumerated exclusions from the 70-day calculation.  18 U.S.C. Sec. 3161(h)(1)-(9).  Congress must have deemed these exclusions sufficiently important to the administration of justice to overcome the strong interests favoring speedy dispositions.  In our view, therefore, these speedy trial act exclusions were intended at least to be the equivalent of "good cause" within the meaning of the tolling provisions of the detainer act, so that if a circumstance qualifies as an exclusion under the speedy trial act, it also suffices to toll the time periods of the detainer act.

9
When the fourth circuit addressed the interaction between the detainer act and the speedy trial act in United States v. Odom, 674 F.2d 228, 231-32 (4th Cir.1982), cert. denied, 457 U.S. 1125, 102 S.Ct. 2946, 73 L.Ed.2d 1341 (1982), it concluded, as do we, that the two statutory schemes had the same purpose and that they should be construed together.  Generally speaking we think that this approach is sound, and we agree with their conclusion.

10
Moreover, we have previously determined that Article VI of the detainer act allows exclusions of " 'all those periods of delay occasioned by the defendant.' "    United States v. Roy, 771 F.2d 54, 59 (2d Cir.1985), cert. denied, 475 U.S. 1110, 106 S.Ct. 1520, 89 L.Ed.2d 918 (1986) (quoting United States v. Scheer, 729 F.2d 164, 168 (2d Cir.1984)).  This is very similar to one of the standards used to test exclusions under the speedy trial act.  See, e.g., United States v. Bufalino, 683 F.2d 639, 646 (2d Cir.1982) (delay caused by defendant did not result in speedy trial violation), cert. denied, 459 U.S. 1104, 103 S.Ct. 727, 74 L.Ed.2d 952 (1983);  United States v. Shandell, 800 F.2d 322, 324 (2d Cir.1986) (a speedy trial dismissal based upon delay requested by the defendant himself "would be mousetrapping of a rather egregious order").  Given the similarities in the case-law development of excludable time under the two acts, and in the interests of consistent judicial administration, we now expressly hold that the "for good cause shown" standard of the detainer act should encompass the same conditions and circumstances as the rules for excludable time under the speedy trial act.

11
Keeping in mind our general analysis of the detainer act above, we now turn to the more specific issues raised by Harris and Taylor.  We outline the relevant procedural history of the case as it relates to the two defendants and we discuss the merits of the specific issues they raise.

12
On December 24, 1987, the government filed criminal complaints against both Harris and Taylor, and on January 6, 1988, lodged a detainer against Harris with the warden of the state prison in which he was incarcerated on unrelated charges.  At that time, Harris indicated that he did not desire a speedy disposition of the charge.  The district court ruled that he had thus waived his detainer act right to be tried within 180 days under article III.  We agree.  Article III is implicated only when, after a detainer has been filed, the prisoner expressly asks for a speedy disposition.  Art. III(a).

13
On March 1, 1988, the government lodged a detainer against Taylor, who was similarly incarcerated in a state prison on unrelated charges.  Two days later, on March 3, Taylor indicated that he desired a speedy trial.  Instead of proceeding toward trial, however, the government dismissed the charge against Taylor in April of 1988, but did not notify Taylor of the dismissal.

14
An indictment, which named both Harris and Taylor and which ultimately led to both their convictions, was filed on June 28, 1988.  By writs of habeas corpus ad prosequendum, issued July 1, both Harris and Taylor were brought before the district court for arraignment on July 14.

15
The magistrate then issued a scheduling order which directed defense motions to be filed and served by August 11.  However, on August 11, defendants, including Harris and Taylor, moved for an extension of time within which to file their pretrial motions.  That day, the court orally granted the motion and extended defendants' time for filing to September 15.  At the same time, the court found that the need for the extension resulted from the government's failure to meet its discovery obligations.  Because the government was responsible for the delay, the court refused to exclude the extra time from the speedy trial clock.  However, in the interests of justice, the court did exclude the period from September 5 to September 15.  It arrived at this exclusion as follows:  The government was originally required to comply with all its discovery obligations by July 28, and the defendants were to file their defense motions exactly two weeks after that date.  Because the court allowed the government until August 22 to comply, the defendants should have been required to file their motions by September 5, exactly two weeks after August 22.  But since the defendants were allowed until September 15, the court determined that the time from September 5 to September 15 should be excluded from speedy trial calculations in the interest of justice.  See 18 U.S.C. Sec. 3161(h)(8).  The court, however, denied the government's request that this period also be excluded for purposes of the detainer act.

16
Defendants filed their pretrial motions on September 15, and the district court held a hearing on October 7, when it ruled on some of the motions but deferred ruling on others.  On December 21, the court ruled on the remaining pending motions, except for one filed by Harris that claimed error in the government's photographic identification procedure.  On that motion, the court scheduled an evidentiary hearing to be held just before the trial.  That evidentiary hearing took place on July 29, 1989, at which time Harris filed still another pretrial motion, and the district court did not completely resolve these matters until August 8, 1989.  Trial began on the next day, August 9, 1989.

17
Initially, we note that because Harris did not request a speedy disposition at the time the detainer was lodged against him, he waived his right to be brought to trial within 180 days under article III.  Art. III(a).  Thus, Harris's detainer act rights were not triggered until July 14, when he first appeared in federal court pursuant to the writ of habeas corpus ad prosequendum.    Thus, pursuant to article IV, Harris was entitled to be brought to trial within 120 days from July 14, subject to any applicable tolling.

18
The district court held that the 120-day period was also applicable to Taylor even though he had requested a speedy disposition immediately after the government had lodged the detainer against him.  The court based its holding on the fact that the government had dismissed the charges underlying the detainer, and its belief that the government's failure to notify Taylor was harmless.  Taylor claims that because the government never gave him notice of the dismissal of the charges underlying the detainer lodged against him, the 180-day period from the date he gave notice of his desire for a speedy disposition, on March 3, should be the applicable period.  If this is the applicable period, Taylor claims that he was not timely tried.  He argues that the government cannot benefit from the dismissal of the charges underlying the detainer lodged against him if it never notifies the defendant that it has dismissed the charges or if it never does anything to withdraw the detainer.

19
In response, the government first argues that because the charges against Taylor, which had been the basis for the original detainer in issue, were dismissed, the detainer clock automatically stopped ticking and the 180-day period under article III disappeared.  It further claims that the clock did not start again until July 14, 1988, when Taylor was made to appear before the district court pursuant to a writ of habeas corpus ad prosequendum, and that when the clock started again, it started an entirely new period of 120 days under article IV.  We disagree with this analysis.  The government cannot lodge a detainer against the defendant and then throw out the clock every time it dismisses charges, only to start the clock anew by bringing a new set of charges.  As it turns out, however, it makes no difference whether Taylor's detainer rights are measured by a 180-day period from March 3 or by a 120-day period from July 14, for either way, because of the tolling provisions, Taylor was timely tried.

20
We now turn to analyzing what time periods constitute excludable time that tolled the detainer clock.  First, we agree with the district court that all the time after September 15 constitutes excludable time.  On this date, the defendants filed their pretrial motions, and continuously from then until the date of trial, there was a defense motion pending.  Under the speedy trial act, that period was therefore excludable time, 18 U.S.C. Sec. 3161(h)(1)(F), and given our conclusion, discussed above, that detainer act exclusions should be the same as those under the speedy trial act, the delay caused by the pending defense motions fits within the "for good cause shown" standard of the detainer act, and thus tolled the applicable time limit for both defendants.

21
We address Taylor's more specific argument that the time taken to decide Harris's motions, which was primarily responsible for the delay after September 15, should not be attributed to Taylor under the detainer act.  We reject this argument.  Under the speedy trial act, we have previously held that "delay attributable to a codefendant is excludable speedy trial time as to all defendants."    United States v. Nixon, 779 F.2d 126, 130 (2d Cir.1985).  See also United States v. Pena, 793 F.2d 486, 489 (2d Cir.1986);  United States v. Piteo, 726 F.2d 50, 52 (2d Cir.1983), cert. denied, 466 U.S. 905, 104 S.Ct. 1682, 80 L.Ed.2d 156 (1984).  We see no reason to disallow exclusions for delays caused by a codefendant in the detainer act context.  If we were to disallow such exclusions in detainer claims, even though we continue to allow them in speedy trial claims, it would have the practical effect of requiring severance in most cases where a defendant raises a detainer act claim.  Nowhere is there any indication that congress intended to allow defendants invoking the provisions of the detainer act to be severed from their co-defendants and tried separately.  For both ease of administration and logical consistency, we think the same rules for exclusions should apply to both acts.

22
Since the 120-day detainer act clock for both Harris and Taylor started on July 14 and since all the delay between September 15 and the day before the trial commenced was excludable time, there was no detainer act violation under article IV.  On the other hand, Taylor's 180-day detainer act clock started on March 3, and even though all the delay after September 15 was excludable time, there were still 195 days--15 more than the act allowed--between March 3 and September 14.  Consequently, Taylor would not have been timely tried unless at least 15 additional days between March 3 and September 14 were also excludable.

23
Initially, we agree with the government that the district court erred by ruling that the 11-day period from September 5 to September 15, which related to the extension of time to file defense motions requested by defendants, would be excluded for speedy trial purposes but not for detainer purposes.  As we discussed above, if it was excludable time under the speedy trial act, it was similarly excludable under the detainer act.  Thus, the period of the extension, from September 5 through September 15, was excludable.

24
Next, we note that the speedy trial act provides that "delay resulting from any pretrial motion, from the filing of the motion through the conclusion of the hearing on, or other prompt disposition of, such motion" shall be excluded.  18 U.S.C. Sec. 3161(h)(1)(F).  Thus, any time during which a motion is pending is excluded from the speedy trial clock, and consistent with our previous analysis, it should be excluded from the detainer clock as well.  Under this analysis, the following periods are excludable under both acts.  First, July 14 and July 15 (2 days) are excludable because of a pending government motion to detain some of the defendants.  Second, June 28 through July 1 (4 days) are excludable because of a pending government motion to furnish handwriting exemplars.  Although this motion was filed on May 24, the period before June 28, the day the superseding indictment naming Taylor as a defendant was returned, of course cannot be counted against Taylor.  However, since the time was excludable for speedy trial purposes, it is also excludable for detainer act purposes once Taylor was added as a co-defendant.  Together these two periods add up to six days, which when added to the 11-day exclusion discussed above, produce 17 excludable days under the detainer clock.  Because these 17 days reduce the non-excludable time below the 180-day threshold, there was no violation of Taylor's detainer act rights under article III.

B. Speedy Trial Act

25
Under the speedy trial act, the time excludable under Sec. 3161(h)(1), which deals with periods of delay "resulting from other proceedings concerning the defendant", is automatically excluded for any period covered by the subsection.  As the Supreme Court held in Henderson v. United States, 476 U.S. 321, 326-27, 106 S.Ct. 1871, 1875, 90 L.Ed.2d 299 (1986), we need not consider whether such a delay was "reasonable".  Id.  Subsequently, in United States v. Vasquez, 918 F.2d 329, 334-35 (2d Cir.1990), we considered specifically the question of whether the delay caused by a co-defendant's motions in a joint trial could be counted as excludable time against all the defendants, under 18 U.S.C. Sec. 3161(h)(7).  As a general rule, we determined that such a delay could be attributed to all the defendants without analyzing whether the delay was reasonable.  We did hold, however, that when a defendant had made a severance motion that was denied, a court must examine the reasonableness of any delay caused by a co-defendant's motion before it can be excluded as against the complaining defendant.  Id. at 336-37.

26
Relying on these principles, Cephas raises the only speedy trial issue advanced on these appeals.  He claims that he made a severance motion, and that it was denied.  Thus, he argues, we should inquire whether the long delay caused by co-defendant Harris's identification motion was reasonable.  On that inquiry, he contends, we should determine that the delay was unreasonable and, therefore, should not be charged against him.

27
We disagree and reject Cephas's argument based on the government's position at oral argument.  The government there pointed out that Cephas sought to be severed only from Nigel Blythe, the fugitive co-defendant, and not from co-defendant Harris.  Thus, the government argues, Cephas should not be able to invoke a reasonableness requirement where he has not sought severance from the particular co-defendant responsible for the delay at issue.  We agree.  Therefore, we conclude that under Vasquez the duty to inquire into whether a delay caused by a co-defendant is reasonable is triggered only when the defendant has sought severance from the particular defendant who is responsible for the delay at issue.  Here, Cephas has no claim, because he sought severance only from the fugitive co-defendant Blythe, and not from Harris whose motion caused the delay of which Cephas complains.

28
Our reasoning in Vasquez supports this holding.  There we stated that the reasonableness requirement would be triggered only after the defendant had made a motion to sever.  In doing so, we sought to more carefully patrol for any prejudice caused by the joint trial after a defendant has sought to be tried separately.  Vasquez, 918 F.2d at 337.    It follows, then, that if a defendant seeks severance from only one co-defendant, heightened scrutiny as to the reasonableness of a pretrial delay is required only with respect to delays caused by that particular co-defendant.

29
C. Specificity of the Indictment/Bill of Particulars

30
Finally, we address Harris' claim that he was denied his due process right to notice of the charges against him, because the indictment failed to allege any overt acts attributable to him, and because the district court wrongly denied his motion for a bill of particulars describing the specific nature of the charges or acts.  In particular, Harris claims that because of this lack of notice he was unfairly surprised by the testimony of Sterling Hewitt relating to three shootings in New York City and other violent activities.

31
Harris was charged with and convicted of engaging in a continuing criminal enterprise, a conspiracy to possess with intent to distribute and to distribute four identified controlled substances, and numerous firearms violations.  He was not charged with any substantive drug offenses, and no particular overt act committed by Harris was specifically stated in the indictment or a bill of particulars.

32
Although it is somewhat troubling that the government did not provide Harris in advance of trial with more specific information as to particular acts which Harris himself had committed, the lack of specificity here does not justify reversing his conviction.  Harris bears the heavy burden of demonstrating that the trial court abused its discretion by denying his request for a bill of particulars.  United States v. Torres, 901 F.2d 205, 234 (2d Cir.1990), cert. denied sub nom.  Cruz v. United States, --- U.S. ----, 111 S.Ct. 273, 112 L.Ed.2d 229 (1990).  " 'So long as the defendant was adequately informed of the charges against him and was not unfairly surprised at trial as a consequence of the denial of the bill of particulars, the trial court has not abused its discretion.' "    Id. (quoting United States v. Maull, 806 F.2d 1340, 1345-46 (8th Cir.1986)).  In addition, the government need not particularize all of its evidence.  United States v. Davidoff, 845 F.2d 1151, 1154 (2d Cir.1988).

33
Here, Harris was sufficiently advised as to the charges against him as well as the elements of the offenses.  Although the government did not list the specific activities which showed how he furthered the criminal enterprise or the conspiracy, such specific acts need not be alleged with respect to every named defendant, if the indictment is otherwise sufficient and names the other persons involved in the criminal activity.

34
Further undercutting Harris's claim of unfairness at trial is his failure to ask for any continuance after hearing the government's witness, Sterling Hewitt, testify to the guns and violent activities in New York.  If Harris were truly surprised by the testimony, he could have sought time to prepare his cross examination and/or answering case.  That counsel assumed such a request would be denied is not a good enough excuse for failing to ask for it.

CONCLUSION

35
The judgments of conviction of the district court for all the defendant-appellants are affirmed in all respects.


494 S.W.2d 127 (1973)
Attwood C. DUNCAN, Appellant,
v.
STATE of Arkansas, Appellee.
No. CR 73-26.
Supreme Court of Arkansas.
May 14, 1973.
*128 Robert Edwards, Searcy, for appellant.
Jim Guy Tucker, Atty. Gen., by Richard Mattison, Asst. Atty. Gen., Little Rock, for appellee.
BROWN, Justice.
In early 1972 appellant was convicted of burglary and grand larceny in White County and was given 25 years on each count. He was sentenced under our habitual criminal statute as a fourth offender. The matter now before us is based on a Rule I petition. First, appellant contends that the prior offenses should not have been introduced against him because he had ineffective assistance of counsel. Secondly, he insists that he received a pardon from one of those prior convictions and therefore it was error to use that conviction against him.
We find no merit in appellant's contention that he had ineffective assistance of counsel. All of the convictions which we shall describe occurred in Bradley County. The first offense was in 1956, burglary and grand larceny, case number 1698. Attorney Tom Haley was appointed to defend. Appellant entered a plea of guilty. He received a sentence of five years, two years of which were suspended during good behaviour. Within a short time after being released from the penitentiary appellant went on a crime spree in Bradley County which resulted in charges of assault to rape, two burglaries, grand larceny, and jail escape. The docket sheets show that in all of the cases appellant was represented by appointed counsel.
Appellant contends that the ineffectiveness of counsel is revealed by the fact that (1) the court changed his attorneys three times in six months, that (2) the record shows that one of the appointed attorneys represented appellant after that attorney had been permitted to withdraw from the case, and that (3) the fact that he received the maximum sentence in two cases shows that his counsel did not effectively utilize plea bargaining. Argument (1) merely states a conclusion and there is no attempt to show just how the changes in attorneys affected appellant's rights. Argument (2) is based on the fact that Attorney Max Smith was permitted to withdraw on September 5 while the docket shows Mr. Smith appeared for appellant on September 15. In absence of proof to the contrary we assume the trial court had good reason to ask Attorney Smith to reappear for appellant. Furthermore, no proof was offered to the effect that the reappearance of Attorney Smith was prejudicial to appellant. Argument (3) failure to utilize plea bargainingis likewise without merit. In fact the allegation is based on a mere presumption arising from the fact that appellant received maximum sentences for burglary and grand larceny. After all, appellant's attorneys had little room for bargaining. Within a matter of months this appellant committed a series of serious crimes, to all of which he entered pleas of guilty. Nevertheless, someone undoubtedly intervened in appellant's *129 behalf. That is evidenced by the fact that two years of his first sentence was suspended, that a twenty-one year sentence was ordered to run concurrently with other sentences, and that the charge of jail escape was passed indefinitely.
In 1967 appellant obtained a pardon from Governor Rockefeller from one of his twenty-one year sentences imposed in Bradley County. That was in case number 1823. Because of the pardon appellant contends that it was error to use that conviction to enhance his sentence in the case in White County. We consider the point meritorious. That conclusion is due to a combination of two factors. First, the United States Supreme Court held in Ex parte Garland, 4 Wall. 333 at page 380, 18 L.Ed. 366 (1866): "A pardon reaches both the punishment prescribed for the offense and the guilt of the offender; and, when the pardon is full, it releases the punishment and blots out of existence the guilt, so that in the eye of the law the offender is as innocent as if he had never committed the offense". Our court quoted the foregoing with approval in Williams v. Brents, 171 Ark. 367, 284 S.W. 56 (1926). It can be forcefully argued that the recited quotation was dictum in Williams; however, there is another factor, when combined with at least the persuasiveness of Williams, which swings the pendulum in favor of appellant's point. Prior to our present habitual criminal law, our law provided that "Any person convicted of any offense punishable by imprisonment in the penitentiary, who has been discharged, either upon compliance with the sentence or upon pardon or parole, and shall subsequently be convicted of any offense committed after such discharge, pardon or parole, shall be punished as follows:. . . ." Ark.Stat.Ann. § 43-2328 (Repl.1964). The recited provision was changed in 1967 to read: "Any person convicted of an offense, which is punishable by imprisonment in the penitentiary, who shall subsequently be convicted of another such offense, shall be punished as follows: . . . ." Ark.Stat.Ann. § 43-2328 (Supp.1971). Thus it can be argued with considerable force that the legislature chose not to include pardoned convictions under the later statute. That is the conclusion we reach when we combine the persuasiveness of the two factorsthe statement in the Williams case and the deletion made by the legislature.
Our holding on the second point does not require a reversal. Not counting the pardoned crime, appellant had three prior felony convictions in Bradley County and two convictions were added in White County. That made him guilty of a fifth subsequent offense. The minimum time he could have received under § 42-2328(3) was 21 years on each count. By reducing his sentences to the minimum time, any possibility of prejudice is removed. His sentences are therefore modified accordingly.
Affirmed as modified.


     Case: 12-41431       Document: 00512348408         Page: 1     Date Filed: 08/20/2013

           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                          August 20, 2013
                                     No. 12-41431
                                  Conference Calendar                      Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

JOSE GUADALUPE NORIEGA-CABRERA,

                                                  Defendant-Appellant

                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 1:12-CR-605-1

Before HIGGINBOTHAM, SMITH, and GRAVES, Circuit Judges.
PER CURIAM:*
       The attorney appointed to represent Jose Guadalupe Noriega-Cabrera has
moved for leave to withdraw and has filed a brief in accordance with Anders v.
California, 386 U.S. 738 (1967), and United States v. Flores, 632 F.3d 229 (5th
Cir. 2011). Noriega-Cabrera has not filed a response. We have reviewed
counsel’s brief and the relevant portions of the record reflected therein. We
concur with counsel’s assessment that the appeal presents no nonfrivolous issue
for appellate review. Accordingly, counsel’s motion for leave to withdraw is
GRANTED, counsel is excused from further responsibilities herein, and the
APPEAL IS DISMISSED. See 5TH CIR. R. 42.2.

       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.


                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                 October 24, 2006

                                                            Charles R. Fulbruge III
                                                                    Clerk
                              No. 05-41467
                          Conference Calendar

UNITED STATES OF AMERICA,

                                      Plaintiff-Appellee,

versus

JAIME ZAGAL-MERAZ,

                                      Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 7:05-CR-381-ALL
                      --------------------

Before JOLLY, DeMOSS, and STEWART, Circuit Judges.

PER CURIAM:*

     Jaime Zagal-Meraz (Zagal) appeals his conviction and

sentence for illegal reentry.    Zagal contends that his Minnesota

conviction for simple possession of a controlled substance is a

misdemeanor under federal law and should not have been treated as

an “aggravated felony” under U.S.S.G. § 2L1.2(b)(1)(C) and that

8 U.S.C. § 1326(b)(1) & (2) are unconstitutional in light of

Apprendi v. New Jersey, 530 U.S. 466 (2000).

     Zagal’s § 2L1.2(b)(1)(C) argument is unavailing in light of

our precedent.     See United States v. Rivera, 265 F.3d 310, 312-13

     *
       Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
                           No. 05-41467
                                -2-

(5th Cir. 2001); United States v. Hinojosa-Lopez, 130 F.3d 691,

693-94 (5th Cir. 1997).   Zagal argues that our precedent is

inconsistent with Jerome v. United States, 318 U.S. 101 (1943).

Having preceded Hinojosa-Lopez, however, Jerome is not “an

intervening Supreme Court case explicitly or implicitly

overruling that prior precedent.”    See United States v. Short,

181 F.3d 620, 624 (5th Cir. 1999).

     Zagal’s constitutional challenge to § 1326(b) is foreclosed

by Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).

Although Zagal contends that Almendarez-Torres was incorrectly

decided and that a majority of the Supreme Court would overrule

Almendarez-Torres in light of Apprendi, we have repeatedly

rejected such arguments on the basis that Almendarez-Torres

remains binding.   See United States v. Garza-Lopez, 410 F.3d 268,

276 (5th Cir.), cert. denied, 126 S. Ct. 298 (2005).   Zagal

properly concedes that his argument is foreclosed in light of

Almendarez-Torres and circuit precedent, but he raises it here to

preserve it for further review.

     AFFIRMED.


74 Wyo. 379 (1955)
287 P.2d 627
FRED D. STRATTON and JOE VINCENT, Plaintiffs and Respondents,
vs.
THE CITY OF RIVERTON, a Municipal Corporation of Fremont County, Wyoming, E.H. STEFFY, Mayor of the City of Riverton, PAUL HUGHES, J.L. LONG, W.A. JARVIS, PERCY CHOPPING, JAMES GRANGER and R.F. NOAH, Defendants and Appellants.
No. 2688
Supreme Court of Wyoming
September 20, 1955
*380 For the defendants and appellants the cause was submitted upon the brief and oral argument of W.M. Haight, City Attorney, Riverton, Wyoming.
For the plaintiffs and respondents the cause was submitted upon the brief of Moran and Murphy, Riverton, Wyoming; oral argument by Mr. C.J. Murphy.

*381 OPINION
HARNSBERGER, Justice.
The defendant, The City of Riverton, acting by and through its Mayor, E.H. Steffy, and its City Council, composed of Paul Hughes, J.L. Long, W.A. Jarvis, Percy Chopping, James Granger and R.F. Noah, passed a motion that "the road going through the City Park be opened." Assumably in furtherance of that purpose three trees and a telephone pole which were at a point closely approximating the intersection of the center line of the city's main street and the west boundary of the *385 park were removed. In consequence, the plaintiffs, Fred D. Stratton and Joe Vincent, brought this action securing a perpetual injunction, enjoining and restraining "The City of Riverton, its officers, agents or servants * * * from opening a through road or street for public use across said public park in the Park of The City of Riverton * * *." (Emphasis supplied.) Appealing from that order, the city asserts (1) plaintiffs have no standing or right to maintain the action; (2) that the proposed road was in an undedicated part of the park; (3) that the proposed road was an access road and not a through street or part of the city's street system; (4) that by public use the road had been dedicated to the public; and (5) that plaintiffs were guilty of laches.
Both plaintiffs are residents and taxpayers of Riverton. One has his residence across the street from the park; the other resides about four blocks away. As such residents and taxpayers they were qualified to bring the action. It was not necessary that they allege or prove special damage. 39 Am. Jur., Parks, Squares, and Playgrounds, § 47, p. 841; McIntyre v. Bd. of Commissioners of El Paso County, 15 Colo. Ct. of App. Rep. 78, 61 P. 237; 26 C.J.S., Dedications, § 68, p. 160; Douglass v. City Council of Montgomery, 118 Ala. 599, 24 So. 745.
In a prior action one of the instant plaintiffs and another person were plaintiffs, and the City of Riverton and its officers were defendants. Plaintiffs had alleged and the defendants denied that the whole area of the "City Park" here in question was dedicated as a public park without reservation, to the use of the public. In that action the court granted a perpetual injunction, finding that "the allegations of the petition are true in manner and form as said Plaintiffs in their said petition alleged." No appeal was taken and the *386 status of the park as a dedicated city park was thus judically determined.
Although the parties in the two actions are not identical, the issue in the earlier action as to the park's dedication was one of general and public interest and related to public property. The plaintiffs in both cases were residents and taxpayers similarly situated, and the city and its officials in each case were defendants. This is enough to make the judgment in the prior case conclusive of the matter here and res judicata. See 50 C.J.S., Judgments, § 796 (b), pp. 338, 339. The finding that the park in question had been dedicated without reservation as a public park for the use of the public, constituted the order of perpetual injunction, a judgment in rem, determining the park's status as a dedicated public park. It was binding upon and conclusive of the matter to all the world.
50 C.J.S., Judgments, § 910-c (3), pp. 553, 554, says:
"A judgment in rem has been said to constitute an exception, as to the property involved, to the rule, discussed supra § 820, that a judgment is binding only on the parties to the action and their privies. Thus, with respect to the res or status within the jurisdiction of the court, a judgment in rem generally has been held to be conclusive and binding `upon all the world,' that is, on all persons who may have or claim any right or interest in the subject matter of the litigation, whether or not they were parties to, or participants in, the action, at least to the extent that it adjudicates or establishes a status, title, or other res constituting the subject matter of the action. It has frequently been held that decrees in rem are conclusive evidence against all the world of the facts on which they were based, as well as on the status or title of the res, and that it will operate as an estoppel, in a subsequent action, in respect of the points or questions adjudicated. * * *"
*387 The evidence fails to sufficiently support appellant's claim that the public acquired prescriptive right to "the road going through the City Park." Furthermore, it is more than doubtful that the public's use for road purposes of a portion of the lands dedicated for its recreation, pleasure and amusement could amount to that adverse user which is necessary to defeat that same public's right to its use for the purposes contemplated by the dedication.
As we do not agree that the road in question was established by prescription, there can be no issue of the plaintiffs' laches.
The finding that the proposed roadway "was a through street and a part of the street system, to-wit, Main Street in the City of Riverton", rather than an access road, is supported and justified by the admission of the city's mayor, who was called and testified as a witness in the city's behalf. On cross examination he stated that one of the prime reasons for opening the park road was to permit people who live east of the park to drive directly downtown, so that it would not be necessary for them to go out of their way around the park. Consequently, the court having found that the road to be opened would in fact be a through street, the decision rendered was wholly in accordance with Rayor v. City of Cheyenne, 63 Wyo. 72, 178 P.2d 115. Under these circumstances we find no merit in the appeal. However, we feel constrained to observe that the injunction is conservatively limited "from opening a through road or street for public use across said public park * * *". This does not preclude the city from establishing such access road or roads as will not ordinarily be used for through travel. It occurs to us that the way in which this may be accomplished in order to serve the city's purpose to provide rest rooms *388 and other desired facilities within the park, should not present a difficult problem.
The order and judgment of the lower court is affirmed.
Affirmed.
RINER, C.J., and BLUME, J., concur.


33 So.3d 650 (2008)
SABRINA DENISE HODGE
v.
CITY OF OPELIKA.
No. CR-07-0526.
Court of Criminal Appeals of Alabama.
October 24, 2008.
Decision of the Alabama Court of Criminal Appeal Without Published Opinion Affirmed.


Matter of O'Donnell (2019 NY Slip Op 09008)

Matter of O'Donnell

2019 NY Slip Op 09008

Decided on December 18, 2019

Appellate Division, Second Department

Per Curiam.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on December 18, 2019
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department

ALAN D. SCHEINKMAN, P.J.
WILLIAM F. MASTRO
REINALDO E. RIVERA
MARK C. DILLON
VALERIE BRATHWAITE NELSON, JJ.

[*1]In the Matter of Sheila Callahan O'Donnell, admitted as Sheila Callahan, an attorney and counselor-at-law. Grievance Committee for the Tenth Judicial District, petitioner; Sheila Callahan O'Donnell, respondent. (Attorney Registration No. 1428812)

APPLICATION pursuant to 22 NYCRR 1240.10 by Sheila Callahan O'Donnell, who was admitted to the Bar at a term of the Appellate Division of the Supreme Court in the Second Judicial Department on February 16, 1977, under the name Sheila Callahan, to resign as an attorney and counselor-at-law. By decision and order on motion of this Court dated May 9, 2017, inter alia, the investigation of the Grievance Committee for the Tenth Judicial District was stayed pending the respondent's participation in a diversion program pursuant to 22 NYCRR 1240.11(a).

Catherine A. Sheridan, Hauppauge, NY (Michele Filosa of counsel), for petitioner.
Scalise & Hamilton P.C., Scarsdale, NY (Deborah A. Scalise of counsel), for respondent.

PER CURIAM.

OPINION & ORDER
The respondent, Sheila Callahan O'Donnell, has submitted an affidavit sworn to on July 31, 2019, in support of her application to resign as an attorney and counselor-at-law (see  22 NYCRR 1240.10).
The respondent acknowledges in her affidavit that she is the subject of an investigation conducted by the Grievance Committee for the Tenth Judicial District into allegations of professional misconduct as follows: that an investigation was commenced due to allegations that she had a substance abuse problem, but the investigation was stayed pending her participation in a diversion program; that she was arrested and charged with driving while intoxicated, in violation of New York Vehicle and Traffic Law § 1192(3), on September 20, 2016, and December 13, 2016, respectively; that on September 25, 2017, before the Honorable Jude T. Martini of the Newburgh Town Court, Orange County, she pleaded guilty to the charges and was placed on probation; that she violated her probation; and that on January 28, 2019, she was sentenced, inter alia, to 75 days' incarceration. The respondent attests that she cannot successfully defend against the allegations based upon the facts and circumstances of her above described professional misconduct.
The respondent acknowledges that her resignation is freely and voluntarily tendered, without coercion or duress by anyone, with full awareness of the consequences, including that the Court's acceptance and approval shall result in the entry of an order of disbarment striking her name from the roll of attorneys and counselors-at-law.
The respondent attests that the investigation does not include allegations that she [*2]willfully misappropriated or misapplied money or property in the practice of law.
The respondent acknowledges that her resignation is submitted subject to any future application that may be made by a Grievance Committee to any Department of the Appellate Division for an order, pursuant to Judiciary Law § 90(6-a), directing that she make restitution or reimburse the Lawyers' Fund for Client Protection, and that she consents to the continuing jurisdiction of the Appellate Division to make such an order.
In addition, the respondent acknowledges and agrees that, pending the issuance of an order accepting her resignation, she shall not undertake to represent any new clients or accept any retainers for future legal services to be rendered, and that there will be no transactional activity in any fiduciary account to which she has access, other than for the payment of funds held therein on behalf of clients or others entitled to receive them.
Lastly, the respondent acknowledges that in the event that the Court accepts her resignation, the order resulting therefrom and the records and documents filed in relation to the aforementioned allegations, including the affidavits, shall be deemed public records pursuant to Judiciary Law § 90(10).
The Grievance Committee recommends that the respondent's application to resign be granted.
Inasmuch as the respondent's application to resign complies with the requirements of 22 NYCRR 1240.10, the application is granted, and effective immediately, the respondent is disbarred, and her name is stricken from the roll of attorneys and counselors-at-law.
SCHEINKMAN, P.J., MASTRO, RIVERA, DILLON and BRATHWAITE NELSON, JJ.,concur.
ORDERED that the application of the respondent, Sheila Callahan O'Donnell, admitted as Sheila Callahan, to resign as an attorney and counselor-at-law is granted; and it is further,
ORDERED that pursuant to Judiciary Law § 90, effective immediately, the respondent, Sheila Callahan O'Donnell, admitted as Sheila Callahan, is disbarred and her name is stricken from the roll of attorneys and counselors-at-law; and it is further,
ORDERED that the respondent, Sheila Callahan O'Donnell, admitted as Sheila Callahan, shall comply with the rules governing the conduct of disbarred or suspended attorneys (see  22 NYCRR 1240.15); and it is further,
ORDERED that pursuant to Judiciary Law § 90, effective immediately, the respondent, Sheila Callahan O'Donnell, admitted as Sheila Callahan, shall desist and refrain from (1) practicing law in any form, either as principal or as agent, clerk, or employee of another, (2) appearing as an attorney or counselor-at-law before any court, Judge, Justice, board, commission, or other public authority, (3) giving to another an opinion as to the law or its application or any advice in relation thereto, and (4) holding herself out in any way as an attorney and counselor-at-law; and it is further,
ORDERED that if the respondent, Sheila Callahan O'Donnell, admitted as Sheila Callahan, has been issued a secure pass by the Office of Court Administration, it shall be returned forthwith to the issuing agency and the respondent shall certify to the same in her affidavit of compliance pursuant to 22 NYCRR 1240.15(f); and it is further,
ORDERED that the stay issued by decision and order on motion of this Court dated May 9, 2017, is vacated forthwith.
SCHEINKMAN, P.J., MASTRO, RIVERA, DILLON and BRATHWAITE NELSON, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court


831 F.2d 282
American Steel and Aluminumv.One Company
NO. 87-1009
United States Court of Appeals,First Circuit.
SEP 29, 1987

1
Appeal From:  D.Mass.

2
AFFIRMED.