NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,

Plaintiff

- Appellee,

v. DANIEL SANCHEZ

- MARTINEZ,

Defendant

- Appellant. No. 17

- 50375 D.C. No. 3:17

- cr - 01509

- L

- 1

MEMORANDUM *

Appeal from the United States District Court for the Southern District of California M. James Lorenz, District Judge, Presiding Argued and Submitted June 4, 2018 Pasadena, California Before: FERNANDEZ and CHRISTEN, Circuit Judges, and MARSHALL, ** District Judge. Defendant Daniel Sanchez

- Martinez appeals his conviction for importing into the United States 50 kilograms or more of marijuana in violation of 21 U.S.C. §§ 952, 960. He challenges multiple pretrial and trial rulings of the dis trict court.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36

- 3.

** The Honorable Consuelo B. Marshall, United States District Judge for the Central District of California, sitting by designation. 

# FILED

AUG 28 2018 MOLLY C. DWYER, CLE RK U.S. COURT OF APPEAL S2 17

- 50375

We affirm the district court ’ s dismissal of the March 23, 2017 indictment without prejudice, but conclude that the district court erred in denying Defendant ’ s motion to dismiss the Government ’ s June 8, 2017 indictment. Accordingly, we need not reach Defendant ’ s other assignments of error. 1) At a hearing on May 30, 2017, the district court determined that Defendant had not been brought to trial within the time period required under t he Speedy Trial Act, 18 U.S.C. § 3161(c)(1), thus mandating di smissal of the indictment pursuant to 1 8 U.S.C. § 3162(a)(2). In their written submissions and oral argument, the Government and Defendant addressed the factors enumerated in § 3162(a)(2) to be considered by the district court in determining whether that d ismissal should be with or without prejudice. At a subsequent hearing on June 5, 2017, the court agreed to dismiss the indictment without prejudice on the condition that the Government agree not to pursue a 10

- year mandatory minimum charge when reindicting Defendant

. We review the district court ’ s decision to dismiss without prejudice for abuse of discretion. United States v. Medina , 524 F.3d 974, 982 (9th Cir. 2008). Defendant contends that the district court failed to consider the requisite statutory factors and instead gave dispositive weight to the Government ’ s agreement not to pursue a 10

- year mandatory minimum on reindictment. We disagree. Although the district court ’ s comments at the May 30 and June 5 hearings3 17

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focused heavily on the prej udice to Defendant resulting from the mandatory minimum sentence , the transcripts from those hearings demonstrate that the district court was also aware of and considered the factors enumerated in § 3162(a)(2). 1
Th e district court was faced with multiple r elevant factors supporting divergent conclusions, and its “

judgment of how opposing considerations balance should not lightly be disturbed. ” United States v. Taylor , 487 U.S. 326, 337 (1988). Thus , while different conclusions could be drawn from this recor d, we are unable to say that the district court abused its discretion in concluding that its dismissal of the indictment should be without prejudice. See Medina , 524 F.3d at 982 (“ A court abuses its discretion if it ‘ failed to consider all the factors rele vant to the choice ’ and the ‘ factors it did rely on were unsupported by factual findings or evidence in the record. ’” ) (quoting Taylor , 487 U.S. at 344 )

. 2) Upon deciding to dismiss without prejudice, the district court , a t the Government ’ s request, stay ed its dismissal order until June 9, 2017 to prevent Defendant ’ s release and possible deportation pending reindictment

. On June 6, 2017, the district court signed and dated its order of dismissal, and the clerk of court stamped it filed. However, the clerk d id not enter the dismissal order in the

1 Although a more explicit articulation of the district court ’ s analysis would be preferable as an aid to appellate review, “[ n]either the statute nor any case requires written findings or a precise script. ” United States v. Arellano

- Ochoa , 461 F.3d 1142, 1147 (9th Cir. 2006). We emphasize, however, that the better c ourse is for the district court to make explicit findings under each of the statutory factors.4 17

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docket until June 12. O n June 8, the Government obtained and filed a new indictment against Defendant. On June 19, 2017, Defendant filed a motion to dismiss the new indictment, arguing that

— because the court ’ s dismissal of the prior indictment did not become effective until after the new indictment was filed

— the new indictment was actually a superseding indictment, which inherited the Speedy Trial Act violation of its predecessor. While the motion was pending, the district court “ adjusted the docket entry ” to reflect a June 6 date for the dismissal order. 2 The district court subsequently denied Defendant ’ s motion to dismiss, finding that its dismissal order had taken effect on June 6 and that the amendment of the docket to reflect an entry date of
June 6 was a proper use of its authority to amend the record nunc pro tunc . We disagree. The power to enter or amend an order nunc pro tunc “ is limited to making the record reflect what the district court actually intended to do at an earlier date, but which it did not sufficientl y express or did not accomplish due to some error or inadvertence. ” United States v. Sumner , 226 F.3d 1005, 1010 (9th Cir. 2000). “ It does not imply the ability to alter the substance of that which actually transpired or to backdate events to serve some other purpose. ” Id. As reflected in both the

2 This was apparently done so that the docket entry would conform to an internal rule of the clerk ’ s office requiring that all orders be entered into the docket on the day they are signed, dated, and filed.5 17

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minutes and the transcript from the June 5, 2017 hearing , the district court ordered its dismissal of the indictment stay ed until June 9. This indicates a clear intent to postpone the effective date of the dismissal to June 9 , which we find inconsistent with the district court ’ s later determination that it had “ intended to make the [order] final when it was signed, dated[,] and stamped ‘ Filed ’” on June 6

. The clerk of court ’ s delay in entering the dismissal is consistent with the district court ’ s order that the dismissal be stayed . Although the court later characterized the delayed entry as clerical error, the only conclusio n supported by the record is that the clerk was acting to effectuate the district court ’ s order, made on the record at the June 5, 2017 hearing. 3 Because the district court ’ s later amendment of the docket to reflect a dismissal date of June 6, 2017 conflicted with both the court ’ s stay order and the dismissal order ’ s date of entry , it was an attempt
to “ alter the substance of that which actually transpired , ” which is beyond the nunc pro tunc power. Id. Th e district court ’ s di smissal order therefore b ecame effective after the Government ’ s filing of a new indictment on June 8, 2017

. The June 8 indictment thus constituted a superseding indictment , consequently inheriting its predecessor ’ s

3 Of course, the delay between June 9 and June 12 in entering the order may indeed have been due to clerical error. We need not decide which of these two dates the dismissal order actually took effect, or whether a court could correct a purely clerical error of this kind by ordering that the dismissal be entered on the docket nunc pro tunc

.6 17

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70

- day speedy trial clock under 18 U.S.C. § 3161(c)(1). See United States v. Karsseboom , 881 F.2d 604, 606

- 07 (9th Cir. 1989). Because that clock had already lapsed, dismissal was mandated by 18 U.S.C. § 3162(a)(2) , and t he district court erred in denying Defendant ’ s motion to dismiss the June 8, 2017 indictment. We ther efore vacate Defendant ’ s resulting conviction and sentence. REVERSED AND REMANDED.Unite d

State s v . Sanc h e

z-Martine z , No. 17-50375
CH RIST E N , C irc uit Judge , c onc urring in pa rt a n d disse nting in pa

rt.
I a gre e with m

y c olle a g u e s tha

t the distric t c ourt c o rre c tly de c ide d tha t a Spe e dy Tria l Ac t v i ola tion oc c u rre d in this c a se , a

nd I would a ffirm

the distric t

c ourt’ s orde r dism issing the first indic tm e nt without pre judic e . B ut I would a lso

a ffirm the distric t c o urt’ s de nia l of the se c o nd m otion to dism iss. I pa rt wa y s with
the m a jority be c a use I find no e rror in the distric t c ourt’ s use of nunc pro tunc to

a djust the doc ke t

to re fle c t the c ourt’ s origina l inte ntion, a rtic u la te d a t the June 5, 2017 he a ring. I re spe c t fully disse n t from

the c ourt’ s disposition of the se c ond

m otion to dism

iss.
On June 5, the distric t c ourt ora lly a nnounc e d tha

t it would dism

iss the
indic tm e nt without pre

j udic e in light of the

Spe e dy Tria l Ac t viola

tion a n d the
gove rnm e nt’ s a g re e m e nt to se e k a ne w indic tm e nt without a te n-y e a r m a nda tory

m inim um . The prose c utor wa

nte d a n opportunity to re turn to the gra nd jury to obta in a ne w indic tm e nt without ta king the risk tha

t the de fe nda

n t would be

re le a se d

— a nd pe rha

ps disa ppe a r— be fore tria l, a

nd the prose c utor a s ke d the c ourt
to sta y the judgm e nt. The distric t c ourt a gre e d to do so until June

9. The m a

jority
inte rpre ts the distric t c ourt’ s a gre e m e nt to “ sta y ” the judgm e nt a s e xpre ssing its
inte nt not to e xe c ute t

he judgm e nt until June

9, but this is c le a rly

not the c a se . Any doubt on tha

t sc ore e v a

pora te d the ve ry

ne xt da y , June 6, whe n the c ourt signe d the



# FIL ED

AUG 28 2018
M OLLY C. DW Y ER, CLERK U

. S. CO URT O F APPEALSjudgm e nt a

nd it wa s sta

m pe d “ file d .” Appa

re ntly the judgm e nt wa s not se n t to be
doc ke te d, c onsiste nt with the c ourt’ s on-re c o rd a g re e m e nt to a c c om m oda te the
pa rtie s until June 9

. M e a n while , on June 8, a ne w indic tm e nt wa s obta ine d. The n,

c ontra ry to the rule re quiring tha

t a judgm e nt be doc ke te d the sa m e da y it is signe d,
on June 12 a

c le rk doc ke te d the pre viously -e xe c ute d judgm e nt. Sa nc he z -M a rtine z

re lie s on this da

te of doc ke ting to a

rgue tha t the ne w indic tm e nt wa s infe c te d by
the o rigina l Spe e dy

Tria l Ac t viola

tion. I disa g re e . B y

m y re a d, the distric t c ourt’ s inte nt wa s c le a r. R a t

he r tha n signa ling a c ha

nge from wha t the c ourt inte nde d to do on June 5, the re c ord c onvinc e s m e only tha t the c ourt wa s una

wa re of the c ourt rule re quiring orde rs to be signe d, da te d, file d, a

n d e nte re d

on the doc ke t on the

sa m e da y . I c onc lude the nunc pro tunc orde r a m e nding the e le c tronic doc ke t

re fle c t e d the c ourt’ s origina l inte ntion a rtic ula te d on June 5, a

nd the distric t

c ourt did not e xc e e d its a

uthority by c ha nging the e n t

ry -of-judgm e nt da

te to June 6,
2017— the da y the c ourt e x e c ute d the orde r. Unite d State s v
. Sumne r , 226 F.3d 1005, 1009–10 (9th C ir. 2000). Ac c ordingly , the Spe e dy Tria l Ac t viola

tion did
not infe c t the June 8, 2017 indic tm e nt. I would re m a nd only

for the distric t c ourt to e xplic itly disc uss a nd we igh the Spe e dy Tria l Ac t s ta tutory

fa c tors on the re c ord. The Spe e dy Tria l Ac t

m e m o ria liz e s the s trong inte re sts, he ld by both the a c c use d a

nd soc ie ty , in the
tim e ly a n d fa i r a dm inistra

tion of justic e
. S

e e Unite d State s v . Ramire

z-C o rte z , 213F.3d 1149, 1156 (9th C ir. 2000). Although it is a ppa re nt tha t the distric t c ourt

c onside re d the Spe e dy

Tria l Ac t fa c tors whe n dism issing without pre judic e , Unite d
State s v . Tay lor

re quire s tha

t distric t c ourts “ c a re fully e xpre ss [the i r] de c ision[s]
whe the r or not to ba

r re prose c ution in te rm s of the guide l ine s spe c ifie d by
C ongre ss” in orde r to a llow thorough a ppe lla te re vie w. 487 U.S. 326, 343 (1988). In light of Tay lor ’ s rule , I would re m a nd for the distric t c ourt to furthe r a rtic ula te its a n a l y sis of the sta

tutory fa c tors.