NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
JAN 28 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 17-50403
Plaintiff-Appellant, DC No. CV 17-0458
v.
MEMORANDUM*
ROOSEVELT SOLOMON,
Defendant-Appellee.
Appeal from the United States District Court
for the Central District of California
Manuel L. Real, District Judge, Presiding
Submitted January 10, 2019**
Pasadena, California
Before: TASHIMA and WATFORD, Circuit Judges, and ROBRENO,***
District Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously finds this case is suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2)(C).
***
The Honorable Eduardo C. Robreno, United States District Judge for
the Eastern District of Pennsylvania, sitting by designation.
The government appeals the district court’s dismissal of the indictment
against Defendant-Appellee Roosevelt Solomon. We have jurisdiction under 18
U.S.C. § 3731 and 28 U.S.C. § 1291, and “[w]e review for abuse of discretion the
district court’s decision to dismiss an indictment for preindictment delay, under
both the Fifth Amendment Due Process Clause and Rule 48(b).” United States v.
Huntley, 976 F.2d 1287, 1290 (9th Cir. 1992). Because the 18-month pre-
indictment delay neither rose to the level of a due process violation nor fell within
the purview of Rule 48(b), we reverse.
1. The district court clearly erred when it found that Solomon had
established sufficient prejudice to support dismissal of the indictment under the
Fifth Amendment Due Process Clause. Ninth Circuit precedent squarely holds that
neither the accumulation of additional criminal history points nor the lost
opportunity to receive concurrent federal and state sentences can satisfy the
required showing of “actual, non-speculative prejudice from the delay.” Huntley,
976 F.2d at 1290; see also United States v. Gregory, 322 F.3d 1157, 1165 (9th Cir.
2003) (“[N]either the possibility that the government might use prior convictions
for impeachment purposes nor the possibility that [defendant] may have lost the
opportunity to have his . . . sentences served concurrently are the types of prejudice
that violate the Fifth Amendment’s guarantee against excessive preindictment
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delay.” (citations omitted)); United States v. Martinez, 77 F.3d 332, 337 (9th Cir.
1996) (reversing district court’s dismissal of the indictment because prejudice from
an increased criminal history category was only speculative given that the judge
could make downward departure at sentencing for overstated criminal history
category); United States v. Sherlock, 962 F.2d 1349, 1354 (9th Cir. 1989) (holding
that the defendant’s allegation “that the delay prevented him from serving his
sentence concurrently with an earlier rape sentence, which would have reduced his
total period of confinement,” was “too speculative to establish actual prejudice”).
Contrary to Solomon’s contention that his increased criminal history
category nevertheless constitutes actual, non-speculative prejudice due to recent
legislation, Martinez and our other precedents continue to control. The PROTECT
Act and related Sentencing Guidelines amendments did not foreclose the use of
downward departures to mitigate any potential prejudice stemming from an
overstated criminal history category. See Prosecutorial Remedies and Other Tools
to end the Exploitation of Children Today Act, Pub L. 108-21, 117 Stat. 650
(2003); 18 U.S.C. § 3553(b); U.S.S.G. §§ 4A1.3, 5K2.0 (2016). Moreover, the
now advisory nature of the Sentencing Guidelines means that district judges today
have even more discretion to correct for any unfair prejudice during sentencing
than they did at the time Martinez was decided in 1996, when the Guidelines were
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mandatory. As a result, Solomon’s alleged sentencing prejudice remains
speculative. The district court therefore abused its discretion when it dismissed the
indictment under the Fifth Amendment.
2. While the district court only analyzed the pre-indictment delay under
the Fifth Amendment’s Due Process Clause, addressed above, the district court
also cited Federal Rule of Criminal Procedure 48(b) as a source of its authority to
dismiss the indictment. However, Rule 48(b) does not apply here because the Rule
deals with delay in presenting a charge to a grand jury only after a defendant has
been arrested, and it requires the court to give advance warning before dismissal.
See United States v. Corona-Verbera, 509 F.3d 1105, 1114 (9th Cir. 2007) (“Rule
48(b) ‘clearly is limited to post-arrest situations.’” (quoting United States v.
Marion, 404 U.S. 307, 319 (1971))); United States v. Benitez, 34 F.3d 1489, 1495
(9th Cir. 1994) (“[A]n arrest or prosecution by state authorities does not trigger
Rule 48(b).” (citations omitted)); Huntley, 976 F.2d at 1292 (“The judge could not
properly dismiss under Rule 48(b) without forewarning.”). Because the district
court issued no forewarning and Solomon was indicted before he was taken into
federal custody, the court abused its discretion to the extent that it dismissed the
indictment in reliance on Rule 48(b).
REVERSED and REMANDED for further proceedings.
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