United States v. Alpuche-Miranda

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 99-40241 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ROGER VICTOR ALPUCHE-MIRANDA,

Defendant-Appellant.

- - - - - - - - - - Appeal from the United States District Court for the Southern District of Texas USDC No. B-98-CR-482-ALL - - - - - - - - - -

December 15, 1999

Before JOLLY, HIGGINBOTHAM, and BARKSDALE, Circuit Judges.

PER CURIAM:*

Roger Victor Alpuche-Miranda (“Alpuche”) appeals his

conviction for illegal re-entry into the United States, in

violation of 18 U.S.C. § 1326(a). The district court dismissed

Alpuche’s first indictment without prejudice as a violation of

the Speedy Trial Act, but he was re-indicted five days later. He

then entered a conditional guilty plea that permitted him to

appeal the Speedy Trial Act ruling.

Alpuche conclusionally argues that the dismissal of the

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 99-40241 -2-

first indictment should have been a dismissal with prejudice and

suggests that the Government cannot “disregard the Speedy Trial

Act by simply re-indicting a defendant.” He is incorrect. The

Speedy Trial Act explicitly provides for the possibility of

“reprosecution” in the event of a dismissal without prejudice.

See 18 U.S.C. § 3162(a)(1), (a)(2). The district court did not

abuse its discretion in dismissing the first indictment without

prejudice and in permitting re-indictment. See United States v.

Blevins, 142 F.3d 223, 224-25 (5th Cir. 1998). Accordingly,

Alpuche’s conviction is AFFIRMED.