                                                                           FILED
                            NOT FOR PUBLICATION                             JUL 17 2013

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                        No. 12-50235

              Plaintiff - Appellee,              D.C. No. 3:11-cr-03122-DMS-1

  v.
                                                 MEMORANDUM*
URIEL SOLIS-SANCHEZ,

              Defendant - Appellant.


                    Appeal from the United States District Court
                       for the Southern District of California
                     Dana M. Sabraw, District Judge, Presiding

                             Submitted July 11, 2013**
                               Pasadena, California

Before: GRABER, RAWLINSON, and WATFORD, Circuit Judges.

       Defendant Uriel Solis-Sanchez appeals the district court’s decision not to

use its supervisory powers to dismiss his indictment for a violation of 8 U.S.C.

§ 1326, which prohibits the reentry of aliens who have been removed. Reviewing



        *
         This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
          The panel unanimously concludes that this case is suitable for decision
without oral argument. Fed. R. App. P. 34(a)(2).
for abuse of discretion, we affirm.1 See United States v. Stinson, 647 F.3d 1196,

1209 (9th Cir. 2011) ("A district court’s decision not to use its supervisory powers

to dismiss an indictment is reviewed only for abuse of discretion."), certs. denied,

132 S. Ct. 1768 and 132 S. Ct. 1773 (2012).

      "A district court may exercise its supervisory power to implement a remedy

for the violation of a recognized statutory or constitutional right; to preserve

judicial integrity by ensuring that a conviction rests on appropriate considerations

validly before a jury; and to deter future illegal conduct." United States v.

Chapman, 524 F.3d 1073, 1085 (9th Cir. 2008) (internal quotation marks omitted).

But, "because dismissing an indictment with prejudice encroaches on the

prosecutor’s charging authority, this sanction may be permitted only in cases of

flagrant prosecutorial misconduct." Id. (internal quotation marks and brackets

omitted). Moreover, "[a] court may dismiss an indictment under its supervisory

powers only when the defendant suffers substantial prejudice." Id. at 1087

(internal quotation marks omitted).




      1
         We decline the government’s invitation to review only for plain error,
because Defendant sufficiently raised his supervisory-powers argument before the
district court. We also decline Defendant’s invitation to review de novo, because
the cases he cites in support of that standard are not on point. At any rate, the
district court’s decision was proper under any of the standards suggested to us.

                                           2
      Under those standards, the district court did not abuse its discretion in

declining to dismiss the indictment. Even assuming that violations of the Due

Process Clause and Rule 5 occurred, the government’s actions did not rise to the

level of "flagrant prosecutorial misconduct."2 Any violation resulted from a

practice meant to handle the large number of defendants arrested in the district

each day, serious security and administrative concerns, and the need to screen for

health issues, rather than from any improper purpose such as a desire to inflict

punishment or to obtain evidence improperly. Moreover, Defendant has not

suffered substantial prejudice, because he is in no worse a legal position in regard

to his prosecution than he would have been in the absence of any violation.

      We reject the argument that Bell v. Wolfish, 441 U.S. 520 (1979), provides

the appropriate standard for deciding this case. Although Bell gives the standard

for deciding when a pretrial detainee’s due process rights have been violated, it

says nothing about when dismissal of an indictment is the appropriate remedy for

such a violation. We also reject the argument that the pervasiveness of delays and

the unconstitutional conditions of confinement justify a strong remedy to deter



      2
         We decline the government’s invitation to ignore the arguably
unauthorized reply brief that Defendant filed in the district court because, even if
his allegations of deplorable treatment were properly before the court, the district
court did not err.

                                          3
future misconduct because the government, under court order, already has

corrected the problems of which Defendant complains. Thus, dismissing

Defendant’s indictment is unnecessary to deter future conduct.

      AFFIRMED.




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