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.
I
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.
II
A
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.
1
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).
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.
3
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.
B
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
is
A F F I R M E D.
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