                                                            [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                     FILED
                       FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                         ________________________ ELEVENTH CIRCUIT
                                                               APR 24, 2007
                               No. 05-16980                  THOMAS K. KAHN
                           Non-Argument Calendar                 CLERK
                         ________________________

                     D. C. Docket No. 99-00620-CR-DLG

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                     versus

JAVIER GARZA,

                                                            Defendant-Appellant.


                         ________________________

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

                                (April 24, 2007)

Before ANDERSON, DUBINA and BARKETT, Circuit Judges.

PER CURIAM:

     Appellant Javier Garza appeals his conviction for possession of a firearm by
a convicted felon, in violation of 18 U.S.C. § 922(g)(1). Garza was indicted by a

federal grand jury on August 24, 1999. After his voluntary surrender on April 11,

2005, he filed a motion to dismiss the indictment pursuant to Fed. R. Crim. P.

48(b) alleging a violation of his Sixth Amendment right to a speedy trial. After an

evidentiary hearing, a magistrate judge recommended denying Garza’s motion to

dismiss the indictment on the grounds that Garza had failed to show prejudice

stemming from the delay in the prosecution of his case. The district court adopted

the magistrate judge’s recommendation and denied Garza’s motion to dismiss the

indictment. After a bench trial was held on August 10, 2005, Garza was found

guilty on the single count indictment.

      On appeal, Garza argues that the more than five-and-one-half-year delay

from the date of his indictment to the date of his trial constituted a violation of his

speedy trial rights. In analyzing the factors set forth in Barker v. Wingo, 407 U.S.

514, 530, 92 S. Ct. 2182, 2192 (1972), Garza first asserts that the length of time

between the indictment and his voluntary surrender is clearly sufficient to trigger

further review of his claim. Second, Garza maintains that the reason for the delay

was attributable to the government, as it failed to utilize reasonable efforts to locate

him in a timely fashion. To bolster this point, Garza emphasizes the fact that after

ATF agent Howard Greene’s initial physical surveillances of his father’s residence,



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the ATF agents failed to make any further surveillances or visits to that residence

for over five years. Third, Garza maintains that he was not aware that he had been

indicted until April 2005, and he made arrangements to surrender himself to the

appropriate authorities within hours after the U.S. Marshal visited his father

inquiring about his whereabouts. Lastly, Garza argues that his case is analogous to

both Doggett v. United States, 505 U.S. 647, 112 S. Ct. 2686 (1992), and United

States v. Ingram, 446 F.3d 1332 (11th Cir. 2006). Specifically, he asserts that he

should not be required to show prejudice because the first three factors in Barker

weigh heavily against the government.

      The government concedes that in light of Ingram, which was not available

when the district court ruled, Garza’s case should be remanded to the district court

with instructions to dismiss the indictment. The government asserts that the

rationale of Ingram controls and requires a like result. Further, the government

acknowledges that Garza’s case is stronger than Ingram’s, as none of Garza’s

conduct during the five-and-one-half-year post-indictment period is indicative of

an intent to evade prosecution. The government also acknowledges that Garza is

not required to show actual prejudice because each of the first three factors of the

Barker analysis weighs heavily against the government. Therefore, the

government concedes that the district court erred by denying Garza’s motion to



                                          3
dismiss the indictment based on his failure to show actual prejudice.

      Accordingly, because the facts and circumstances of Ingram are controlling

in this case, and based on the government’s confession of error, we vacate the

judgment of conviction and remand this case to the district court with instructions

to dismiss the indictment.

      VACATED AND REMANDED.




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