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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
m 01-40653
_______________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
MARTIN MARTINEZ-ESPINOZA,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Southern District of Texas
_________________________
July 17, 2002
Before SMITH, BENAVIDES, AND PARKER,
presented immigration officials with a legal
Circuit Judges.
resident alien card (form I-551) seeking entry.
A check of his record revealed an earlier
JERRY E. SMITH, Circuit Judge:
deportation after a conviction of aggravated
assault with a deadly weapon. On November
Martin Martinez-Espinoza ("Espinoza") ap-
22, the government filed a complaint charging
peals, on the basis of a violation of the Speedy
Espinoza with "attempting to enter" the Unit-
Trial Act ("STA"), his conviction of attempted
ed States. A grand jury returned an indictment
illegal reentry in violation of 8 U.S.C. § 1326.
on December 19, charging Espinoza with
We reverse and remand.
being "found in" the United States.1
I.
On November 21, 2000, Espinoza
1 Both offenses are violations of 8 U.S.C.
approached the border at a bridge and
(continued...)

On February 21, 2001, Espinoza appeared
jury returned a superseding indictment,
in court, prepared to enter a plea of guilty.
charging Espinoza with "attempting to enter"
The court, however, noted the inconsistency
the United States.
between t he charge and the indictment and
suggested that Espinoza and the government
At the bench trial on this charge, Espinoza
work out a solution.2 That same day, a grand
moved to dismiss the indictment for violation
of the STA.3 The court denied the motion and
found Espinoza guilty of the charge in the
1(...continued)
superseding indictment.
§ 1326(a):
Subject to subsection (b) of this section, any
alien whoSS
(1) has been denied admission,
excluded, deported, or removed or
2(...continued)
has departed the United States
basis for the plea." FED. R. CRIM. P. 11(f).
while an order of exclusion,
deportation, or removal is
3 The Act mandates dismissal if the time limit
outstanding, and thereafter
between charging and indictment is exceeded:
(2) enters, attempts to enter, or is
If, in the case of any individual against
at any time found in, the United
whom a complaint is filed charging such in-
States, unless (A) prior to his re-
dividual with an offense, no indictment or
embarkation at a place outside the
information is filed within the time limit
United States or his application
required by section 3161(b) as extended by
for admission from foreign con-
section 3161(h) of this chapter, such charge
tiguous territory, the Attorney
against that individual contained in such
General has expressly consented
complaint shall be dismissed or otherwise
to such alien's reapplying for ad-
dropped.
mission; or (B) with respect to an
alien previously denied admission
8 U.S.C. § 3162(a). For Espinoza, this time limit
and removed, unless such alien
was thirty days:
shall establish that he was not
required to obtain such advance
Any information or indictment charging an
consent under this chapter or any
individual with the commission of an offense
prior Act.
shall be filed within thirty days from the
date on which such individual was arrested
8 U.S.C. § 1326(a).
or served with a summons in connection
with such charges. If an individual has been
2 Rule 11, FED. R. CRIM. P., requires the district
charged with a felony in a district in which
court to determine the accuracy of a plea before
no grand jury has been in session during
accepting it: "Notwithstanding the acceptance of
such thirty-day period, the period of time for
a plea of guilty, the court should not enter a
filing of the indictment shall be extended an
judgment upon such a plea without making such
additional thirty days.
inquiry as shall satisfy it that there is a factual
(continued...)
8 U.S.C. § 3161(b).
2

II.
The purpose behind this requirement in the
A.
STA is to put the defendant on notice as to the
We review interpretations of the STA de
offense he must defend against at trial. Id. at
novo. We accord clear-error deference to re-
329.5 This comports with Supreme Court jur-
lated factual questions. United States v. De La
isprudence teaching that one of the key
Peña-Juarez, 214 F.3d 594, 597 (5th Cir.),
purposes of reviewing for sufficiency of an
cert. denied, 531 U.S. 983, and cert. denied
indictment is to ensure notice to the accused of
531 U.S. 1026 (2000).
the conduct forming the basis of the charge.
Russell v. United States, 369 U.S. 749, 763
B.
(1962); Hagner v. United States, 285 U.S.
The STA requires dismissal where an in-
427, 431 (1932). This purpose cannot be
dictment is filed more than a specified number
served where the indictment the government
of days after the charge. 18 U.S.C. § 3162(a).
offers to toll the STA clock alleges an offense
In Espinoza's case, that limit was thirty days.
different from that shown in the superseding
18 U.S.C. § 3161(b). Espinoza was charged
indictment. We therefore must determine
on November 22, 2000; the first indictment
whether the charged conduct in the two
was handed down on December 19 and the
indictments constitutes the same "offense" for
second on February 21. In United States v.
purposes of the STA.
Giwa, 831 F.2d 538, 541-42 (5th Cir. 1987),
we adopted a narrow reading of the dismissal
In an almost identical situation, we have ap-
language in § 3162(a). Thus, "dismissal of the
plied the same-offense test from the Supreme
charge is required only if an indictment is
Court's double jeopardy jurisprudence. In
secured more than 30 days from the filing of a
United States v. Bailey, 111 F.3d 1229 (5th
complaint and contains identical charges."
Cir. 1997), we were faced with the question
United States v. Perez, 217 F.3d 323, 327 (5th
whether, for purposes of the STA, charges
Cir.) (emphasis added), cert. denied, 531 U.S.
contained in an original information referenced
973 (2000). Where, as here, there is both a
the same offense as did the charges in a later-
timely and an untimely indictment, the first
instrument will toll the STA clock only if the
indictments charge an identical offense. Id.
at 328.4
4(...continued)
us.
4 The indictments, though, need not allege iden-
tical facts. As Perez demonstrates, minor var-
5 See also United States v. Berry, 90 F.3d 148,
iations in the facts alleged in the indictments will
151 (6th Cir. 1996) (stating that the "purpose of
not prevent an initial indictment from tolling the
the thirty-day rule is to ensure that the defendant is
STA clock. Perez, 214 F.3d at 328; see also
not held under an arrest warrant for an excessive
United States v. Mitchell, 723 F.2d 1040, 1044-45
period without receiving formal notice of the
(1st Cir. 1983) (holding that additional facts in
charge against which he must prepare to defend
superseding indictment filed more than thirty days
himself"); United States v. McCown, 711 F.2d
after arrest did not violate STA). We express no
1441, 1447 (9th Cir. 1983) (noting that purpose of
opinion on the permissible variance of facts be-
the STA time limit is to "apprise defendant of the
tween indictments, because the issue is not before
charges against which he must be prepared to
(continued...)
defend himself").
3

filed indictment.6 We held that the charges in
If a guilty plea to being "found in" the
the information and the indictment constituted
United States cannot be supported, even on
different offenses because they failed the
plain error, by facts amounting to attempted
"same elements" test of United States v.
entry, the offenses contain different elements.
Blockburger, 284 U.S. 299 (1932). Bailey,
Because the offenses contain different
111 F.3d at 1236.
elements, they are different offenses under
Blockburger. As different offenses, they
Under Blockburger, 284 U.S. at 304, "the
cannot be substituted one for the other to toll
test to be applied to determine whether there
the STA's thirty-day clock. Thus, the original
are two offenses or only one is whether each
indictment, alleging that Espinoza was "found
provision requires proof of an additional fact
in" the United States, did not stop the ticking
which the other does not." That is, where the
started on November 22, when the
conduct charged in an initial accusatory
government charged him with attempting to
instrument, and a subsequent indictment
enter the United States. The superseding
produces congruent Venn circles, the conduct
indictment of February 21 was too late.
is the same "offense" for purposes of
§ 3161(b). The question remains: Does the
III.
conduct charged i n Espinoza's two
Our resolution of Espinpza's STA claim
indictments amount to the same offense?
does not end the matter. The dismissal
sanction contained in § 3162 leaves to the
We have answered this question in a
court's discretion whether to dismiss with or
different context. In United States v. Angeles-
without prejudice. 18 U.S.C. § 3162(a)(1).
Mascote, 206 F.3d 529 (5th Cir. 2000), we
This discretion is channeled through three
faced a sufficiency challenge to a plea of guilty
factors, consideration of which is mandatory:
of being "found in" the United States after
(1) the seriousness of the offense, (2) the facts
deportation in violation of 8 U.S.C. § 1326(a).
and circumstances of the case which led to the
On plain error review, we refused to uphold
dismissal, and (3) the impact of a reprosecuti-
the plea of guilty where the stipulated facts
on on the administration of the STA and on
supported only a charge of attempting to
the administration of justice. Id.; United
enter. Id. at 531.7
States v. May, 819 F.2d 531, 533 (5th Cir.
1987).8 Our usual practice is to remand for
6 See also United States v. Hsin-Yung, 97 F.
Supp. 2d 24, 30 (D.D.C. 2000) (citing Bailey with
7(...continued)
approval and concluding the charged offenses were
Bailey, "the information and indictment in the
not the same because "they have different elements,
instant action each charge a violation of § 662.
proscribe different forms of conduct, and carry
But . . . each charge in the instant action is
different penalties").
different despite the shared reference to § 662
because the information charges a misdemeanor
7 Cf. United States v. Cardenas-Alvarez, 987
and the indictment charges a felony." Bailey, 111
F.2d 1129, 1132-33 (5th Cir. 1993) (recognizing
F.3d at 1236 n.6.
difference in elements between offense of actual
entry and attempted entry). It is of no moment that
8 The Act, though, expresses no preference for
the two indictments reference the same statute. In
one remedy over the other. Johnson, 29 F.3d at
(continued...)
(continued...)
4

the district court to consider the factors.
ernment's reason for having violated the Act."
United States v. Alford, 142 F.3d 825, 830
May, 819 F.2d at 533. Normally, the burden
(5th Cir. 1998).
is on the government to explain the violation.
Id. The district court, though, found no
We have not, however, blindly followed
violation of the act, so there was no chance for
this rule. For example, in United States v.
the government to offer an explanation.
Johnson, 29 F.3d 940 (5th Cir. 1994), we saw
"no good reason to remand" where there were
The apparent cause of the delay was
"no questions of fact to be explored by the dis-
negligence by the government in citing the
trict court." Id. at 946.9 Espinoza's case,
wrong § 1326 offense.11 This cuts both ways:
however, fits into the usual pattern, requiring
Although it means the government did not
remand.
delay to gain a tactical advantage,12 it also
places the entire fault for the delay on the
Espinoza's prior conviction, which exposed
shoulders of the prosecution.13
him to § 1326(a) liability, was of aggravated
assault with a deadly weapon. Thus, a
The final § 3162 factor requires
conviction of attempted reentry would expose
consideration of the broad policy aims of the
him to a term in prison of up to twenty years.
STA and the act at issue in the underlying
18 U.S.C. § 1326(b)(2). A sentence of this
criminal prosecution. This factor encompasses
length constitutes a serious charge.10 Espino-
three concerns, "the defendant's right to a
za's offense qualifies as serious.
timely trial; the deterrent effect of a prejudicial
dismissal on the Government's repeated
The second factor, the circumstances of
violations of speedy trial requirements; and the
dismissal, "requires consideration of the Gov-
public's interest in bringing [the accused] to
trial." United States v. Blevins, 142 F.3d 223,
226 (5th Cir. 1998).
8(...continued)
The error had no impact on Espinoza's
945.
right to a timely trial; everything was
9 See also United States v. Blackwell, 12 F.3d
44, 48 (5th Cir. 1998) (finding "no acceptable al-
ternative" on the facts of that case); United States
11 Even if the government were to proffer this
v. Velasquez, 890 F.2d 717, 720 (5th Cir. 1990)
explanation, Espinoza would be entitled to
(declining to remand because the length of Velas-
"subpoena relevant documents [and] call
quez's sentence would be unaffected and we saw
Government officials" in an effort to show this
no reason for "further consideration by the district
reason was pretextual. May 819 F.2d at 533.
court").
12 See United States v. Salgado-Hernandez 790
10 United States v. Castle, 906 F.2d 134, 138
F.2d 1265, 1268 (5th Cir. 1986) (explaining that
(5th Cir. 1990) (offense punishable by twenty
negligence is ordinarily a circumstances favoring
years a serious offense); United States v. Peeples,
dismissal without prejudice).
811 F.2d 849, 850-51 (5th Cir. 1987) (fifteen
years a serious offense); United States v. Melgui-
13 See May, 819 F.2d at 533 (reasoning that
zo, 824 F.2d 370, 371 (5th Cir. 1987) (ten years a
where the fault lies entirely with the government,
serious offense).
this factor favors dismissal with prejudice).
5

proceeding apace on the assumption the first
Summing these factors, we conclude that
indictment was proper. It was only when the
the proper course is remand so the district
court pointed out the mistake that any
court can evaluate these statutory factors, aid-
concerns arose regarding the STA.
ed by its greater familiarity with the case. Our
analysis of the § 3162 factors reveals that the
There is nothing to indicate that the
district court is "best situated" to evaluate the
government repeatedly violates the STA. The
nature of the dismissal in the first instance.
government's negligence, though, merits some
United States v. Willis, 938 F.2d 60, 64 (5th
consequence. This does not mean that
Cir. 1992).
dismissal with prejudice is the only route.
Even dismissal without prejudice imposes
Accordingly, we REVERSE Espinoza's
some costs on the government.
conviction and REMAND to the district court
to determine whether the dismissal should be
Dismissal without prejudice is not a
with or without prejudice.
toothless sanction: it forces the
Government to obtain a new indictment
if it decides to reprosecute, and it
exposes the prosecution to dismissal on
statute of limitations grounds. Given
the burdens borne by the prosecution
and the effect of delay on the
Government's ability to meet those
burdens, substantial delay well may
make reprosecution, even if permitted,
unlikely. If the greater deterrent effect
of barring reprosecution could alone
support a decision to dismiss with
prejudice, the consideration of the other
factors identified in § 3162(a)(2) would
be superfluous, and all violations would
warrant barring reprosecution.
United States v. Taylor, 487 U.S. 326, 342
(1988).14 Finally, the public's interest in bring-
ing Espinoza to trial is high, because his
alleged crime is itself premised on a prior ag-
gravated assault.
14 The Court also noted that the act authorizes
direct sanctions against the prosecutor in the form
of fines, sanctions, or reports to the appropriate
disciplinary committee. Taylor 487 U.S. at 342
n.14 (citing 18 U.S.C. § 3162(b)(C), (D), (E)).
6