                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS
                                                                            FILED
                            FOR THE NINTH CIRCUIT
                                                                             JAN 28 2019
                                                                         MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS
UNITED STATES OF AMERICA,                        No.   17-50403

              Plaintiff-Appellant,               DC No. CV 17-0458

 v.
                                                 MEMORANDUM*
ROOSEVELT SOLOMON,

              Defendant-Appellee.


                    Appeal from the United States District Court
                       for the Central District of California
                     Manuel L. Real, District Judge, Presiding

                           Submitted January 10, 2019**
                              Pasadena, California

Before:      TASHIMA and WATFORD, Circuit Judges, and ROBRENO,***
             District Judge.




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The panel unanimously finds this case is suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2)(C).
      ***
             The Honorable Eduardo C. Robreno, United States District Judge for
the Eastern District of Pennsylvania, sitting by designation.
      The government appeals the district court’s dismissal of the indictment

against Defendant-Appellee Roosevelt Solomon. We have jurisdiction under 18

U.S.C. § 3731 and 28 U.S.C. § 1291, and “[w]e review for abuse of discretion the

district court’s decision to dismiss an indictment for preindictment delay, under

both the Fifth Amendment Due Process Clause and Rule 48(b).” United States v.

Huntley, 976 F.2d 1287, 1290 (9th Cir. 1992). Because the 18-month pre-

indictment delay neither rose to the level of a due process violation nor fell within

the purview of Rule 48(b), we reverse.

      1.     The district court clearly erred when it found that Solomon had

established sufficient prejudice to support dismissal of the indictment under the

Fifth Amendment Due Process Clause. Ninth Circuit precedent squarely holds that

neither the accumulation of additional criminal history points nor the lost

opportunity to receive concurrent federal and state sentences can satisfy the

required showing of “actual, non-speculative prejudice from the delay.” Huntley,

976 F.2d at 1290; see also United States v. Gregory, 322 F.3d 1157, 1165 (9th Cir.

2003) (“[N]either the possibility that the government might use prior convictions

for impeachment purposes nor the possibility that [defendant] may have lost the

opportunity to have his . . . sentences served concurrently are the types of prejudice

that violate the Fifth Amendment’s guarantee against excessive preindictment


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delay.” (citations omitted)); United States v. Martinez, 77 F.3d 332, 337 (9th Cir.

1996) (reversing district court’s dismissal of the indictment because prejudice from

an increased criminal history category was only speculative given that the judge

could make downward departure at sentencing for overstated criminal history

category); United States v. Sherlock, 962 F.2d 1349, 1354 (9th Cir. 1989) (holding

that the defendant’s allegation “that the delay prevented him from serving his

sentence concurrently with an earlier rape sentence, which would have reduced his

total period of confinement,” was “too speculative to establish actual prejudice”).

      Contrary to Solomon’s contention that his increased criminal history

category nevertheless constitutes actual, non-speculative prejudice due to recent

legislation, Martinez and our other precedents continue to control. The PROTECT

Act and related Sentencing Guidelines amendments did not foreclose the use of

downward departures to mitigate any potential prejudice stemming from an

overstated criminal history category. See Prosecutorial Remedies and Other Tools

to end the Exploitation of Children Today Act, Pub L. 108-21, 117 Stat. 650

(2003); 18 U.S.C. § 3553(b); U.S.S.G. §§ 4A1.3, 5K2.0 (2016). Moreover, the

now advisory nature of the Sentencing Guidelines means that district judges today

have even more discretion to correct for any unfair prejudice during sentencing

than they did at the time Martinez was decided in 1996, when the Guidelines were


                                          3
mandatory. As a result, Solomon’s alleged sentencing prejudice remains

speculative. The district court therefore abused its discretion when it dismissed the

indictment under the Fifth Amendment.

      2.     While the district court only analyzed the pre-indictment delay under

the Fifth Amendment’s Due Process Clause, addressed above, the district court

also cited Federal Rule of Criminal Procedure 48(b) as a source of its authority to

dismiss the indictment. However, Rule 48(b) does not apply here because the Rule

deals with delay in presenting a charge to a grand jury only after a defendant has

been arrested, and it requires the court to give advance warning before dismissal.

See United States v. Corona-Verbera, 509 F.3d 1105, 1114 (9th Cir. 2007) (“Rule

48(b) ‘clearly is limited to post-arrest situations.’” (quoting United States v.

Marion, 404 U.S. 307, 319 (1971))); United States v. Benitez, 34 F.3d 1489, 1495

(9th Cir. 1994) (“[A]n arrest or prosecution by state authorities does not trigger

Rule 48(b).” (citations omitted)); Huntley, 976 F.2d at 1292 (“The judge could not

properly dismiss under Rule 48(b) without forewarning.”). Because the district

court issued no forewarning and Solomon was indicted before he was taken into

federal custody, the court abused its discretion to the extent that it dismissed the

indictment in reliance on Rule 48(b).

      REVERSED and REMANDED for further proceedings.


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