                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 09-4092


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

ANTHONY CHARLES BROWN,

                Defendant – Appellant.



Appeal from the United States District Court for the Western
District of Virginia, at Danville.    Jackson L. Kiser, Senior
District Judge. (4:99-cr-70105-jlk-1)


Submitted:   March 10, 2010                 Decided:   March 26, 2010


Before NIEMEYER, KING, and AGEE, Circuit Judges.


Remanded by unpublished per curiam opinion.


Larry W. Shelton, Federal Public Defender, Fay F. Spence, First
Assistant Federal Public Defender, Roanoke, Virginia, for
Appellant.   Julia C. Dudley, United States Attorney, Craig J.
Jacobsen, Assistant United States Attorney, Roanoke, Virginia,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            On July 27, 1999, a state court in Danville, Virginia,

charged Anthony Charles Brown with transporting one ounce or

more of cocaine into Virginia with the intent to distribute.

After his release on $50,000 bond, Brown failed to appear for a

hearing on September 14, 1999, and a warrant was issued for his

arrest.     On November 18, 1999, a federal grand jury sitting in

Roanoke, Virginia, indicted Brown on one count of knowingly and

intentionally       possessing     with    intent     to     distribute      more    than

five     grams     of   cocaine        base,   in    violation        of    21    U.S.C.

§ 841(a)(1).        An arrest warrant for Brown was issued the next

day, and remained in effect until Brown was apprehended in New

York over eight years later, on March 5, 2008.

            Following Brown’s apprehension, the federal grand jury

issued a superseding indictment charging him with knowingly and

intentionally       possessing     with    intent     to     distribute      more    than

fifty     grams    of   cocaine        base,   in     violation       of    21    U.S.C.

§ 841(a)(1) and (b)(1)(A) (2006).                   Brown moved to dismiss the

superseding       indictment      as     violating     the     five    year      federal

statute    of     limitations,    see     18   U.S.C.      § 3282(a)       (2006),   and

because it broadened the charges against Brown by increasing the

amount    of     cocaine   base        attributed     to     him.      Following      an

evidentiary hearing, the district court denied the motion.                            Two

days later, Brown pled guilty to Count One in the superseding

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indictment      without      the    benefit      of    a    plea   agreement.       The

district court sentenced Brown to 188 months imprisonment, and

Brown noted a timely appeal.

            On appeal, Brown raises several challenges, the first

of which is that the district court should have granted his

motion to dismiss the indictment as time-barred.                          This court

reviews de novo a motion to dismiss an indictment as time-barred

when the motion is based upon a question of law, rather than on

the existence of the facts contained in the indictment.                          United

States v. United Med. & Surgical Supply Corp., 989 F.2d 1390,

1398 (4th Cir. 1993).

            The statute of limitations for non-capital crimes is

five years.      See 18 U.S.C. § 3282(a).                  Brown’s offense occurred

in 1999, and the superseding indictment against him was filed in

2008,    more   than   five        years   after      the   offense.      Before    the

district    court,     the    Government         argued     that   this   superseding

indictment was nonetheless timely because (1) it related back to

the original 1999 indictment and (2) the statute of limitations

was tolled because Brown was a fugitive from justice.

            The district court, in denying the motion to dismiss,

concluded that the original indictment related back to the 1999

indictment because “[t]he superseding indictment was based on

the     exact   same   facts        as     the   original      November    18,     1999

indictment,” and left Brown “fairly alerted to the subsequent

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charges against him and the time period at issue.”                                   (JA 208).

In so concluding, the district court stated that it “need not

express    an    opinion       as    to     whether         [Brown’s]      fugitive        status

tolled the statute of limitations.”                        (JA 209).

               On appeal, the Government has abandoned the argument

that     the    superseding         indictment         related        back     to    the     1999

indictment.       See Edwards v. City of Goldsboro, 178 F.3d 231, 241

n.6 (4th Cir. 1999) (noting that issue not properly raised in

opening brief is abandoned); see also United States v. Brooks,

524 F.3d 549, 556 & n.11 (4th Cir. 2008) (same).                                Instead, the

Government argues only that Brown’s fugitive status tolled the

limitations       period       under       18        U.S.C.     § 3290        (2006),       which

provides,      “[n]o     statute      of     limitations         shall       extend     to       any

person    fleeing      from    justice.”              To    invoke     this    statute,          the

Government must prove, by preponderance of the evidence, that

the    defendant       fled     “with       the       intent     to     avoid       arrest        or

prosecution.”       United States v. Marshall, 856 F.2d 896, 900 (7th

Cir. 1988); see also United States v. Gonsalves, 675 F.2d 1050,

1052 (9th Cir. 1982) (same).

               Brown’s    intent       in       leaving       the     jurisdiction          is     a

question of fact.             Marshall, 856 F.2d at 900; see also United

States    v.    Fonseca-Machado,           53       F.3d    1242,     1243-44       (11th    Cir.

1995);    Gonsalves,       675      F.2d        at    1052.          The     district       court

expressly declined to make that factual finding below, ruling

                                                4
only    that    the   superseding      indictment   related    back     to   the

original 1999 indictment.         Accordingly, we remand this case to

the district court for the limited purpose of permitting that

court   to     determine,   in   the    first   instance,     whether    § 3290

applies in this case.       The record, as supplemented, will then be

returned to this court for further proceedings.

                                                                        REMANDED




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