United States v. Mancia-Perez

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT May 19, 2003
_____________________
Charles R. Fulbruge III
No. 01-21295 Clerk
Summary Calendar
_____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MARCELO MANCIA-PEREZ,

Defendant-Appellant.
_________________________________________________________________

Appeal from the United States District Court
for the Southern District of Texas
_________________________________________________________________

Before JOLLY, JONES, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:

Marcelo Mancia-Perez (“Mancia”) appeals his bench-trial

conviction for illegal reentry after deportation following an

aggravated felony. He argues that the district court abused its

discretion when it dismissed the original indictment without

prejudice for violation of the Speedy Trial Act, and that the

“felony” and “aggravated felony” provisions in 8 U.S.C. §§

1326(b)(1) and (b)(2) are unconstitutional. We AFFIRM.

On March 12, 2001, a criminal complaint was filed charging

Mancia with illegal reentry following deportation subsequent to his

conviction for an aggravated felony, in violation of 8 U.S.C. §

1326. Mancia was arrested the following day. On April 24, the
Government moved to dismiss the case, and the motion was granted by

a magistrate judge on April 30. On May 15, Mancia was indicted for

the violation that had been the subject of the previous criminal

complaint. He moved to dismiss the indictment pursuant to 18

U.S.C. § 3162(a)(1). He argued that the indictment was subject to

dismissal with prejudice because it was not filed within thirty

days of his arrest. The district court dismissed the indictment,

but did so without prejudice because of the seriousness of the

crime, the fact that the delay was due to negligence, the absence

of a demonstrated pattern of neglect on the part of the Government,

the lack of intentional delay by the Government, and the public’s

interest in bringing Mancia to trial.

Following the dismissal of the initial indictment, Mancia was

again charged with illegal reentry. Mancia filed a second motion

to dismiss the indictment, asserting that the original indictment

should have been dismissed with prejudice and that the instant

indictment was subject to dismissal in the light of the

Government’s refusal to give reasons why the first indictment was

filed late and because there was a pattern of neglect on behalf of

the Government in failing to timely file illegal reentry

indictments.

The district court held a hearing on Mancia’s second motion to

dismiss. The court recognized at the outset that some judges in

the Western District of Texas had found a sufficient basis, in

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combination with other factors, to dismiss untimely indictments

with prejudice when the Government did not give details explaining

its delay. The court noted, however, that other judges presented

with the same circumstances had not reached the same result. The

Government stated that it was conceding negligence, that the delay

was not meant to gain any advantage over the defendant, and that

there was no witness or defense that was not available because of

the delay.

Mancia responded that the Government had failed to give any

explanation for its negligence and that he suffered psychological

harm because he thought he would be deported following the

dismissal of his case. Mancia made clear that he was not asserting

that the Government acted in bad faith. The Government added that

it had timely filed over 100 illegal reentry cases in 2001.

The district court found that the seriousness of the crime

coupled with Mancia’s recidivism weighed in favor of a dismissal

without prejudice. The district court noted that the Government

had conceded its negligence in not timely filing the indictment;

however, the district court did not find that the lack of an

explanation for such negligence led to a conclusion that there was

a regular or frequent failure by the Government in timely filing

indictments and, in fact, that the Government had presented

evidence that was inconsistent with such a conclusion. The

district court further noted that there was not a failure by the

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Government to meet its deadlines more than once with respect to the

same defendant. The district court determined that Mancia had

failed to present any evidence that the Government made a voluntary

decision to delay in order to seek a strategic or tactical

advantage. Finally, with respect to the impact of reprosecuting

Mancia on the administration of the Speedy Trial Act and on justice

in general, the district court referred to its dismissal of the

first indictment, which stated that the Government did not

intentionally delay the proceedings and that the public had a great

interest in seeing Mancia brought to trial because of his many

previous convictions.

The district court stated that a dismissal without prejudice

was not meaningless and that a dismissal with prejudice should be

reserved for cases in which there is a regular and frequent

failure, “that is, negligence that is repeated with a far greater

rate of frequency than is present here, or evidence of an intent to

delay to gain a strategic or tactical advantage, which is also not

present here.” The district court concluded that the psychological

damage that was argued by Mancia was an insufficient basis for

finding a dismissal with prejudice appropriate. The district court

therefore denied Mancia’s motion to dismiss the second indictment.

After his motion to dismiss the second indictment was denied,

Mancia waived a jury trial and proceeded to trial before the court.

At the conclusion of the trial, the court found Mancia guilty.

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Mancia was sentenced to a 33-month term of imprisonment that was to

be followed by a three-year term of supervised release. Mancia

filed a timely notice of appeal.

Mancia argues that the district court abused its discretion

when it dismissed the original indictment without prejudice for

violations of the Speedy Trial Act. He argues that even if this

court considers the entire record created after his second motion

to dismiss, the district court’s refusal to dismiss with prejudice

was an abuse of discretion.

“A district court is not required to dismiss an indictment

with prejudice for every violation of the Speedy Trial Act.”

United States v. Blevins, 142 F.3d 223, 225 (5th Cir. 1998) (citing

United States v. Taylor, 487 U.S. 326, 342 (1988)). In addressing

whether a dismissal of an indictment for noncompliance with the

Speedy Trial Act should be with or without prejudice, the district

court should “consider (1) the seriousness of the offense, (2) the

facts and circumstances of the case which led to the dismissal, and

(3) the impact of a reprosecution on the administration of the

Speedy Trial Act and on the administration of justice.” Id.

(citing 18 U.S.C. § 3162(a)(2)). “The defendant has the burden of

proving that dismissal of his case pursuant to these factors is

appropriate.” Id.

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This court reviews a dismissal without prejudice under the

Speedy Trial Act for abuse of discretion. Id. “[W]hen the

statutory factors are properly considered, and supporting factual

findings are not clearly in error, the district court’s judgment of

how opposing considerations balance should not lightly be

disturbed.” Taylor, 487 U.S. at 337.

Seriousness of the Offense

Mancia avers that the district court erred in finding that his

illegal-reentry offense was serious because it is not a crime of

violence and because the statutory maximum for illegal reentry

simpliciter is only two years. His argument is without merit.

This court in United States v. Martinez-Espinoza, 299 F.3d 414, 418

(5th Cir. 2002), held that attempted reentry following deportation

for an aggravated felony was a serious crime within the meaning of

§ 3162(a)(2) because the defendant’s prior conviction, which

exposed him to § 1326(a) liability, was for aggravated assault with

a deadly weapon, and that a conviction for attempted reentry

carried a possible term of imprisonment of twenty years. Id. The

court held that a sentence of that length constituted a serious

charge. Id.; see also United States v. Castle, 906 F.2d 134, 138

(5th Cir. 1990) (offense punishable by twenty years a serious

offense); United States v. Peeples, 811 F.2d 849, 850-51 (5th Cir.

1987) (fifteen years a serious offense); United States v. Melguizo,

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824 F.2d 370, 371 (5th Cir. 1987) (the potential term of

imprisonment is an indication of the seriousness of the offense;

ten years a serious offense).

Mancia was convicted of unauthorized use of a motor vehicle,

which is considered an aggravated felony, and he faced a possible

twenty-year sentence. See United States v. Galvan-Rodriguez, 169

F.3d 217, 220 (5th Cir. 1999) (unauthorized use of motor vehicle is

“crime of violence,” and therefore an aggravated felony). Thus,

the offense was serious within the meaning of § 3162(a)(2).

Facts and Circumstances that Led to the Dismissal

The second factor, the circumstances of dismissal, requires

consideration of the Government’s reason for having violated the

Act. Martinez-Espinoza, 299 F.3d at 418. Normally, the burden is

on the Government to explain the violation. Id. “Once the

Government meets this initial burden, the defendant may show that

the reason offered by the Government is pretextual.” United States

v. May, 819 F.2d 531, 533 (5th Cir. 1987).

In Melguizo and United States v. Salgado-Hernandez, 790 F.2d

1265 (5th Cir. 1986), when the Government’s stated reason for delay

was negligence, this court looked to whether the Government sought

the resultant delays for ulterior purposes, whether the Government

regularly or frequently failed to meet its deadlines, and whether

the Government had failed to meet its deadlines more than once with

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the same defendant. See Melguizo, 824 F.2d at 371-72; Salgado-

Hernandez, 790 F.2d at 1268. In contrast, when the Government has

“offered no explanation whatsoever” for its delay, this court has

assumed that the delay was unjustified and that the second factor

weighed in favor of dismissal with prejudice. May, 819 F.2d at

533.

In Martinez-Espinoza, this court noted that the Government’s

apparent negligence in not timely filing the indictment “cut[] both

ways” because although it meant the Government did not delay to

gain a tactical advantage, it also placed the entire fault for the

delay on the shoulders of the prosecution. Martinez-Espinoza, 299

F.3d at 418-19. After analyzing all of the factors, this court

remanded the case to the district court so that it could evaluate

the statutory factors, aided by its greater familiarity with the

case. Id. at 419.

Mancia argues that the district court erred in finding that

the facts and circumstances that led to the dismissal of his

indictment did not weigh in favor of a dismissal with prejudice.

He avers that the Government’s conclusory concession of negligence

for its 63-day delay in filing the indictment was not sufficient to

excuse its default. He does not aver in his original brief to this

court that there was a pattern of negligence on the part of the

Government in filing indictments. The Government asserts in its

brief that the district court did not err in finding that it did

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not engage in a pattern of neglect. Mancia argues in reply that

the Government’s failure to explain its delay prevented him from

showing that its reason for delay was pretextual and from calling

witnesses and subpoenaing documents to prove a pattern of neglect.

In this case, the Government conceded negligence but did not

explain why it was negligent. The Government did state, however,

that there was no ulterior motive behind the delay and that it had

timely filed over one hundred illegal reentry cases in 2001.

Although Martinez-Espinoza indicates that the Government’s

negligence “cuts both ways” and thus does not point one way or

another to whether the dismissal should have been with or without

prejudice, Melguizo and Salgado-Hernandez remain good law. Under

Melguizo and Salgado-Hernandez, the district court did not abuse

its discretion in finding that, because the Government’s delay was

not for an ulterior purpose and because the Government’s failure to

meet the deadline was not repetitive, regular, or frequent, this

factor weighed in favor of a dismissal without prejudice. See

Melguizo, 824 F.2d at 371-72; Salgado-Hernandez, 790 F.2d at 1268.

Impact of Reprosecution/Administration of Justice

The final § 3162 factor encompasses three concerns: The

defendant’s right to a timely trial; the deterrent effect of a

prejudicial dismissal on the Government’s repeated violations of

the speedy trial requirements; and the public’s interest in

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bringing the accused to trial. Blevins, 142 F.3d at 226. Also

implicated by this factor is the presence or absence of prejudice

to the defendant. Taylor, 487 U.S. at 334.

Mancia argues that the district court erred in not considering

the psychological harm done to him by “dashing [his] hopes of an

immediate deportation to his home in Mexico.” He challenges the

Government’s reliance on May, in which this court concluded that

the third factor under § 3162(a)(2) weighed in favor of a dismissal

without prejudice, because, unlike the defendant in May, he was not

on bond during the delay. See May, 819 F.2d at 534. He also

argues that because he will be deported whether his indictment is

dismissed with or without prejudice, justice will be served to the

extent that he is not allowed to stay in the United States.

When the charge is “serious,” as it is here, “courts should

impose the sanction of dismissal with prejudice only for a

correspondingly serious delay, especially in the absence of

prejudice.” May, 819 F.2d at 534. According to Mancia, he was

indicted on May 15, 2001, 63 days after his March 13, 2001, arrest.

The 63-day delay in this case is not serious or severe. Cf. id. at

532, 534 (41-day delay in filing indictment considered “relatively

brief”) and United States v. Johnson, 29 F.3d 940, 946 (5th Cir.

1994) (118-day delay considered “serious”). Moreover, the district

court found, and Mancia does not dispute in his original brief,

that the Government did not engage in a pattern of filing untimely

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illegal reentry indictments. Accordingly, a dismissal without

prejudice, which “imposes some costs on the government,” was

appropriate. See Martinez-Espinoza, 299 F.3d at 419; Blevins, 142

F.3d at 226.

“[T]he public has a great interest in bringing to trial

defendants, especially recidivists, who have been accused of

committing serious crimes.” Johnson, 29 F.3d at 946. Mancia has

a lengthy criminal history which includes convictions for

unauthorized use of a motor vehicle, theft, and burglary. Finally,

because the first indictment was dismissed without prejudice,

Mancia’s expectation that he would not be reindicted was

unjustified.

Given the foregoing, the district court properly considered

the statutory factors of § 3162(a)(2), and its supporting factual

findings were not clearly in error. Taylor, 487 U.S. at 337.

Accordingly, the district court did not abuse its discretion in

dismissing the first indictment without prejudice and in permitting

reindictment. See Blevins, 142 F.3d at 224.

Mancia argues for the first time on appeal that the felony and

aggravated-felony provisions of 8 U.S.C. § 1326(b)(1) and (2) are

unconstitutional. Mancia concedes that this argument is foreclosed

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

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nevertheless seeks to preserve the issue for Supreme Court review

in the light of Apprendi v. New Jersey, 530 U.S. 466 (2000).

Apprendi did not overrule Almendarez-Torres. See Apprendi,

530 U.S. at 490; see also United States v. Dabeit, 231 F.3d 979,

984 (5th Cir. 2000) (noting that the Supreme Court in Apprendi

expressly declined to overrule Almendarez-Torres). This court

therefore must follow Almendarez-Torres “unless and until the

Supreme Court itself determines to overrule it.” Dabeit, 231 F.3d

at 984 (internal quotation marks and citation omitted).

III

For the foregoing reasons, the judgment of the district court

A F F I R M E D.