          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                   Fifth Circuit

                                                FILED
                                                                 June 16, 2009
                                No. 08-20413
                             Conference Calendar             Charles R. Fulbruge III
                                                                     Clerk

UNITED STATES OF AMERICA,

                                           Plaintiff-Appellee

v.

VENANCIO ROCHA-CARRANZA,

                                           Defendant-Appellant


                 Appeal from the United States District Court
                      for the Southern District of Texas
                           USDC No. 4:06-CR-216-5


Before SMITH, BENAVIDES, and HAYNES, Circuit Judges.
PER CURIAM:*
      Venancio Rocha-Carranza appeals his conviction following a bench trial
for conspiracy to transport and harbor illegal aliens in violation of 8 U.S.C.
§ 1324. He argues that the district court erred in denying his motions to dismiss
his indictment as violating the Speedy Trial Act and the Double Jeopardy
Clause. Our review of this appeal is de novo. See United States v. Flores-Peraza,




      *
      Pursuant to 5 TH C IR. R. 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited
circumstances set forth in 5 TH C IR. R. 47.5.4.
                                  No. 08-20413

58 F.3d 164, 165 (5th Cir. 1995); United States v. Johnson, 29 F.3d 940, 942 (5th
Cir. 1994).
      Rocha-Carranza argues that his June 2006 indictment for conspiracy to
harbor and transport aliens violated the Speedy Trial Act because the
indictment was filed more than 30 days after his September 2004 arrest for
illegal entry in violation of 8 U.S.C. § 1325(a). He argues that the June 2006
indictment violated the Double Jeopardy Clause because he was convicted in
September 2004 for illegal entry in violation of § 1325(a) and § 1325(a) is a
lesser-included offense of § 1324(a).
      In general, an arrest on one charge does not trigger the right to a speedy
trial on another charge filed after arrest, with an exception if a subsequent
charge merely “gilds” the initial charge. United States v. Giwa, 831 F.2d 538,
542-43 (5th Cir. 1987). This “gilding” exception does not apply when the offenses
for which the defendant was arrested and indicted, while arising out of the same
criminal transaction, are separate and distinct offenses each requiring proof of
different elements. Id. at 543. “[W]here the same act or transaction constitutes
a violation of two distinct statutory provisions, the test to be applied to
determine whether there are two offenses or only one, is whether each provision
requires proof of a fact which the other does not.” Blockburger v. United States,
284 U.S. 299, 304 (1932); see United States v. York, 888 F.2d 1050, 1058 (5th Cir.
1989).
      Section 1325(a) requires proof of how an illegal entry was effected. Section
1324(a) does not require such proof. Section 1324(a) requires proof of, inter alia,
the transportation or harboring of an alien. Section 1325(a) does not require
such proof. Sections 1324(a) and 1325(a) are therefore separate and distinct
offenses each requiring proof of a fact that the other does not. Accordingly, the
indictment in this case did not violate the Speedy Trial Act or the Double
Jeopardy Clause. See York, 888 F.2d at 1058; Giwa, 831 F.2d at 541-43. The
judgment of the district court is AFFIRMED.

                                        2
