                                                          [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                    FILED
                      FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                        ________________________ ELEVENTH CIRCUIT
                                                              AUG 9, 2007
                               No. 07-11080                 THOMAS K. KAHN
                           Non-Argument Calendar                CLERK
                         ________________________

                       D. C. Docket No. 06-00013-CR-5

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                    versus

ROGER HAMELIN,

                                                          Defendant-Appellant.


                         ________________________

                 Appeal from the United States District Court
                    for the Southern District of Georgia
                      _________________________

                               (August 9, 2007)

Before DUBINA, CARNES and KRAVITCH, Circuit Judges.

PER CURIAM:

     Roger Hamelin appeals his conviction for possessing a firearm and
ammunition as a convicted felon on the grounds that the Government violated the

Speedy Trial Act. For the reasons that follow, we vacate the conviction and

remand to the district court to dismiss the indictment and determine whether the

dismissal is with or without prejudice.

                                I. BACKGROUND

      On July 14, 2005, a grand jury indicted Hamelin on one count of possession

of a firearm and ammunition by a convicted felon, in violation of 18 U.S.C.

§ 922(g). Hamelin appeared at his arraignment before the magistrate judge on

August 23, 2005, and he entered a plea of not guilty. On May 9, 2006, Hamelin

moved to dismiss the indictment with prejudice based on violation of the Speedy

Trial Act, 18 U.S.C. §§ 3161-3174. On May 13, 2006, the district court dismissed

the indictment without prejudice.

      On August 10, 2006, a grand jury returned a second indictment against

Hamelin for the same offense—one count of possession of a firearm and

ammunition by a convicted felon, in violation of § 922(g). On August 26, 2006,

Hamelin again appeared before the magistrate judge and pleaded not guilty.

      On November 27, 2006, Hamelin and the Government filed proposed voir

dire questions and requests to charge. On November 30th, Hamelin filed a motion

to dismiss the indictment for violation of the Speedy Trial Act. In its written



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response to Hamelin’s motion, the Government admitted that “[t]he technical

requirements of [the Speedy Trial Act] have not been met, in that it appears that the

70th non-excludable day under the Act was November 29, 2006.” But the

Government argued “that the delay resulted because the Court’s staff slightly

miscalculated the date upon which the time would expire.” The Government also

argued that even if dismissal were warranted, such dismissal should be without

prejudice because the charged offense was serious, the Government acted in good

faith without delay or neglect, and the Government had an interest in the efficient

administration of justice.

      On the day Hamelin’s trial commenced, December 4, 2006, the district court

summarily denied Hamelin’s motion to dismiss. At the conclusion of trial, the jury

convicted Hamelin, and the district court sentenced him to a term of 98 months’

imprisonment, which he is currently serving. This appeal followed.

                                 II. DISCUSSION

      On appeal, Hamelin argues that his indictment should be dismissed with

prejudice because he was not brought to trial within the 70-day period prescribed

by the Speedy Trial Act. We review a claim under the Speedy Trial Act de novo.

United States v. Miles, 290 F.3d 1341, 1348 (11th Cir. 2002).

      The Speedy Trial Act provides that a defendant who has entered a plea of



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not guilty must be tried within 70 days from the filing of his indictment or

information, or from the date on which he made his first appearance before the

court, whichever date last occurs. 18 U.S.C. § 3161(c)(1). If the defendant is not

tried within the 70-day time limit, the court must dismiss the indictment. Id.

§ 3162(a)(2). The district court must then determine whether the dismissal is with

or without prejudice by considering, “among others, each of the following factors:

the seriousness of the offense; the facts and circumstances of the case which led to

the dismissal; and the impact of a reprosecution on the administration of this

chapter and on the administration of justice.” Id. “[I]n order to prevent abuse of

the [Act’s] deadlines, we require a showing of some affirmative justification by the

government to warrant a dismissal without prejudice.” United States v. Godoy,

821 F.2d 1498, 1505 (11th Cir. 1987) (internal quotation marks omitted). But

“[a]side from this limitation, the choice of sanction is left to the sound discretion of

the district court after consideration of the statutory factors.” Id. Thus, “[t]the

district court’s decision that the dismissal should have been without prejudice will

stand, unless that court has abused its discretion.” Id. The defendant must request

the relief of dismissal, and the defendant’s failure to move for dismissal before trial

shall constitute a waiver of the right to dismissal under the Act. 18 U.S.C.

§ 3162(a)(2); United States v. Register, 182 F.3d 820, 828 (11th Cir. 1999).



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      Here, as the Government concedes, Hamelin was not brought to trial within

the 70-day time limit prescribed by the Speedy Trial Act. Hamelin’s motion to

dismiss the indictment for violation of the Act was filed on November 30,

2006—one day after the expiration of the 70-day time limit and four days before

his trial was to commence. As such, the district court erred in failing to dismiss the

indictment as required by the Act. Because the district court made no factual

findings in denying Hamelin’s motion (stating only that Hamelin should have

raised the issue “long before this point today”) we remand to the district court to

dismiss the indictment and determine whether the dismissal is with or without

prejudice. See Godoy, 821 F.2d at 1505 (holding that whether a dismissal for

violation of the Speedy Trial Act is with or without prejudice is within the district

court’s “sound discretion” based on consideration of the statutory factors).

                                III. CONCLUSION

      For the foregoing reasons, we VACATE Hamelin’s conviction, and

REMAND to the district court with instructions to dismiss the indictment and

determine whether the dismissal is with or without prejudice.




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