[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 22-11822

Non-Argument Calendar

____________________

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

versus

BRANDON RASHAD DOWDELL, 

Defendant-Appellant.

____________________

Appeal from the United States District Court

for the Middle District of Georgia

D.C. Docket No. 7:21-cr-00017-WLS-TQL-1

____________________

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2 Opinion of the Court 22-11822

Before JORDAN, BRANCH, and HULL, Circuit Judges.

PER CURIAM:

Defendant Brandon Dowdell appeals his conviction for 

being a felon in possession of a firearm, in violation of 18 U.S.C. 

§ 922(g)(1). On appeal, Dowdell argues that the district court erred 

(1) in dismissing his original November 13, 2018, indictment 

without prejudice, rather than with prejudice; and (2) in denying 

his motion to dismiss his subsequent May 12, 2021, indictment for 

the same offense. After careful review of the record and the parties’

briefs, we affirm.

I. FACTUAL BACKGROUND

Because this appeal involves both statutory and 

constitutional speedy trial claims, we recount the procedural 

history in detail.

A. 2018 Indictment and Initial Appearance

On November 13, 2018, a federal grand jury indicted 

Dowdell with one count of possession of a firearm by a convicted 

felon, in violation of 18 U.S.C. § 922(g)(1). Dowdell was appointed 

counsel on November 27, 2018, but he was not arrested on this

§ 922(g) indictment until August 12, 2019.

Then on August 13, 2019, pursuant to a writ of ad 

prosequendum, Dowdell was brought before the federal district 

court for his initial appearance. At this time, Dowdell was 

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incarcerated on state charges in the Lowndes County Jail in 

Valdosta, Georgia.

At Dowdell’s initial appearance, a magistrate judge ordered 

that Dowdell be detained pending trial. That same day, the 

magistrate judge issued a pretrial order directing the parties to turn 

over discovery by September 12, 2019.

B. Government’s Motion to Continue 

On October 21, 2019, the government moved under the 

Speedy Trial Act, 18 U.S.C. § 3161, to continue Dowdell’s trial in 

furtherance of the ends of justice. It asserted that a “continuance 

would best serve the interests of justice and would not unduly 

prejudice either party.” It also requested that the period of delay 

be excluded from the speedy trial clock.

Dowdell opposed this motion, arguing that a continuance 

was not warranted because the speedy trial clock already had 

expired.

C. Dowdell’s Motion to Dismiss Indictment with Prejudice

One week later, on October 28, 2019, Dowdell, through 

counsel, moved to dismiss his indictment with prejudice under the 

Speedy Trial Act, asserting that more than 70 days had elapsed 

since his November 13, 2018, indictment and his August 13, 2019, 

initial appearance. Dowdell observed that, once the speedy trial 

clock expires, a district court has discretion to dismiss the 

indictment with or without prejudice after considering the 18 

U.S.C. § 3162(a) factors. Dowdell also contended that (1) the 

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4 Opinion of the Court 22-11822

pretrial delay violated his Sixth Amendment right to a speedy trial, 

and (2) the government failed to comply with its discovery 

obligations, in violation of his Fifth Amendment due process rights 

and the magistrate judge’s pretrial order.

On January 9, 2020, the district court held a hearing on 

Dowdell’s October 28 motion to dismiss. During this hearing,

Dowdell argued that he was in the Lowndes County Jail for 

approximately 270 days because there was a “federal hold” on his 

case. He also contended that the 2018 indictment should be 

dismissed with prejudice because (1) he had been unable to 

investigate his case or prepare a defense, (2) he did not receive 

discovery from the government for over a year, and (3) he could 

have difficulty tracking down witnesses for his trial.

As to the November 2018 indictment, the government 

responded that (1) the speedy trial period did not begin to run until

August 13, 2019, when Dowdell made his initial appearance;

(2) under § 3161, the government’s October 21 motion tolled the 

speedy trial clock; and (3) the 70-day deadline had not expired. 

Instead, the government pointed out that only 68 days had expired.

Alternatively, the government requested that, if the district 

court determined that there was a speedy trial violation, the 

indictment be dismissed without prejudice.

Regarding the discovery delays, the government stated that

(1) it had issues uploading the discovery materials to its server, and 

(2) it sent the discovery to Dowdell by FedEx on October 30, 2019, 

only about a month after the September 12 discovery deadline.

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At the conclusion of the January 2020 hearing, the district 

court dismissed Dowdell’s indictment without prejudice. The 

court observed that (1) Dowdell’s counsel “sat on [his] hands for 

the better part of a year” and did not bring the speedy trial matter 

to the court’s attention; and (2) if the court had known about the 

issue, it “would have taken steps to correct it.”

D. 2021 Indictment and Initial Appearance

On May 12, 2021, a federal grand jury indicted Dowdell with 

one count of being a felon in possession of a firearm, in violation 

of § 922(g)(1), based on the same conduct underlying the 

November 2018 indictment.

On May 17, 2021, the government secured another writ of 

ad prosequendum so that Dowdell, who was still incarcerated in the 

Lowndes County Jail, could be brought before the district court for 

his initial appearance.

On June 22, 2021, Dowdell’s initial appearance was held 

before a magistrate judge. Dowdell consented to pretrial detention 

“in light of [his] pending state charges.”

E. Denial of Dowdell’s July 16, 2021, Motion to Dismiss the 

2021 Indictment

On July 16, 2021, Dowdell moved to dismiss his 2021 

indictment with prejudice, arguing that (1) the speedy trial clock

had expired, (2) the 974-day pretrial delay between his November 

2018 indictment and his July 2021 motion to dismiss violated his 

constitutional speedy trial rights, (3) the district court back in 

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6 Opinion of the Court 22-11822

January 2020 should have dismissed his 2018 indictment with 

prejudice, and (4) he was prejudiced by the government’s failure to 

try him within the deadlines established by the Speedy Trial Act 

and the Sixth Amendment.

On November 16, 2021, the district court denied Dowdell’s 

motion to dismiss. The district court found that (1) the speedy trial 

clock had not expired on the 2021 indictment, and (2) the district 

court lacked jurisdiction to review whether the 2018 indictment 

should have been dismissed with prejudice, relying on United States 

v. Kelley, 849 F.2d 1395, 1397 (11th Cir. 1988), which concluded that 

“any challenge to the dismissal of the indictment without prejudice 

must await the defendant’s subsequent conviction.”

F. Dowdell’s Second Motion to Dismiss, Guilty Plea, and 

Sentence

On January 3, 2022, Dowdell filed a second motion to 

dismiss his 2021 indictment under the Speedy Trial Act and the

Sixth Amendment.

During a January 25, 2022, pretrial conference, the parties 

informed the district court that (1) Dowdell intended to enter a 

conditional guilty plea to the § 922(g)(1) offense and (2) he would 

reserve the right to appeal the denial of his July 16, 2021, motion to 

dismiss the 2021 indictment.

On January 31, 2022, the district court denied Dowdell’s 

second motion to dismiss as moot because he was pleading guilty 

to the charged offense.

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On February 3, 2022, Dowdell entered a conditional guilty 

plea to the § 922(g)(1) offense. Dowdell’s plea agreement states: 

“[T]he defendant and the Government agree that this plea 

agreement is conditioned on the defendant’s right to have an 

appellate court review the district court’s order denying his motion 

to dismiss (Doc. 29).”

Further, Dowdell’s attorney and the prosecutor signed a 

“Conditional Guilty Plea” document pursuant to Federal Rule of 

Criminal Procedure 11(a)(2). That document states that Dowdell 

“reserves the right to have an appellate court review the Order 

Denying his Motion to Dismiss the Indictment issued by this Court 

on November 16, 2021.”

The factual proffer contained in Dowdell’s plea agreement 

stated that: (1) Dowdell’s ex-girlfriend called the authorities after 

Dowdell became irate during a FaceTime conversation, pointed a 

gun at her, and threatened her grandmother; (2) Dowdell, who was 

the subject of a warrant for a state probation violation, fled on foot 

after two Valdosta Police Department officers approached his 

residence; and (3) Dowdell was later apprehended, and the officers 

found a pistol in the sleeve of a sweatshirt that he discarded after 

he fled from the house.

At the change-of-plea hearing, the government informed the 

district court that (1) Dowdell was entering a conditional plea, and 

(2) he was reserving the right to appeal Document 29, which is the 

order denying the motion to dismiss the 2021 indictment. The 

district court observed that (1) “part of” Dowdell’s position in that 

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8 Opinion of the Court 22-11822

motion to dismiss the 2021 indictment was that “the first 

indictment that was dismissed under [the] Speedy Trial [Act] 

should have been with prejudice,” and (2) the district court 

determined that in the 2021 case it could not review its previous 

order dismissing the 2018 indictment without prejudice. Both 

parties agreed that the district court was accurately characterizing 

Dowdell’s position and the district court’s order. At the conclusion 

of the hearing, the district court accepted Dowdell’s guilty plea.

The presentence investigation report calculated an advisory 

guidelines range of 70 to 87 months based on a total offense level 

of 21 and a criminal history category of V. At the sentencing 

hearing, the district court calculated an advisory guidelines range

of 70 to 78 months1 and sentenced Dowdell to 78 months’

imprisonment, followed by 3 years’ supervised release.

II. DOWDELL’S APPEAL

On appeal, Dowdell argues the district court erred (1) in 

dismissing his 2018 indictment without prejudice, rather than with 

prejudice; and (2) in denying his motion to dismiss his 2021 

indictment for the same offense.

As a threshold matter, there is an issue as to whether 

Dowdell’s guilty plea preserves challenges only to the denial of the 

1 We recognize that the district court (1) calculated the advisory guidelines 

range as 70 to 78 months at Dowdell’s sentencing hearing, but (2) indicated in 

its Statement of Reasons that that range was 70 to 87 months. We do not 

address this contradiction because Dowdell does not raise this issue.

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22-11822 Opinion of the Court 9

motion to dismiss his 2021 indictment, and not to the dismissal of

his 2018 indictment without prejudice.

As noted earlier, Dowdell’s plea agreement and the 

conditional plea document were both, on their face, conditioned 

on his “right to have an appellate court review” the district court’s 

order denying his motion to dismiss the 2021 indictment. Further, 

Dowdell’s speedy trial challenge to his 2018 indictment is 

non-jurisdictional, and a guilty plea generally results in waiver of 

all non-jurisdictional defects that are not preserved in the 

defendant’s conditional guilty plea. United States v. Pierre, 120 F.3d 

1153, 1155 (11th Cir. 1997).

On the other hand, during the plea colloquy, the district 

court recognized that part of the motion to dismiss the 2021 

indictment was based on the court’s failure to dismiss the 2018 

indictment with prejudice. Moreover, the government on appeal 

does not raise the issue of waiver as to Dowdell’s 2018 indictment 

challenge but instead briefs the merits of the dismissal of the 2018 

indictment being without prejudice, rather than with prejudice.

Accordingly, we do not address waiver and proceed to 

consider Dowdell’s claims that his 2018 indictment should have 

been dismissed with prejudice. Cf. United States v. Lall, 607 F.3d 

1277, 1290 (11th Cir. 2010) (declining to apply on appeal a waiver 

or procedural forfeiture rule to a defendant’s challenge of the 

admissibility of a confession because the government did not argue 

the issue was waived or forfeited).

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III. SPEEDY TRIAL ACT

A. General Principles

The Speedy Trial Act requires that a federal criminal 

defendant be tried within 70 days of the filing of an indictment 

against him or his arraignment, whichever is later. 18 U.S.C. 

§ 3161(c)(1). The Act excludes from the 70-day calculation certain 

periods of delay, including the “delay resulting from any pretrial 

motion, from the filing of the motion through the conclusion of 

the hearing on, or other prompt disposition of, such motion.” 

Id. § 3161(h)(1)(D).

The date on which an event occurs, including the date of 

arraignment, the date a pretrial motion is filed, and the date a 

pretrial motion is resolved, is not counted in calculating the 

statutory period. United States v. Jones, 601 F.3d 1247, 1255 (11th 

Cir. 2010); United States v. Yunis, 723 F.2d 795, 797 (11th Cir. 1984).

If a defendant is not brought to trial within the 70-day period, the 

defendant may move to dismiss the indictment, and the district 

court must grant that motion and dismiss the indictment. 18 

U.S.C. § 3162(a)(2).

In granting a Speedy Trial Act dismissal, “[a] district court 

has the discretion to dismiss an indictment with or without 

prejudice.” United States v. Ochoa, 941 F.3d 1074, 1100 (11th Cir. 

2019). The district court “must consider three factors when 

determining the method of relief: (1) ‘the seriousness of the 

offense’; (2) ‘the facts and circumstances of the case which led to 

the dismissal’; and (3) ‘the impact of a reprosecution on the 

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administration of this chapter and on the administration of 

justice.’” Id. (quoting 18 U.S.C. § 3162(a)(2)). “Where the 

defendant is charged with a serious crime, the delay was minor, the 

defendant suffered no prejudice from the delay, and the 

government did not actively seek delay, dismissal should be 

without prejudice.” Jones, 601 F.3d at 1257 (considering whether 

the defendant’s indictment should have been dismissed without 

prejudice where the Speedy Trial Act was violated).

B. No Speedy Trial Act Violation as to 2018 Indictment

As to the 2018 indictment, Dowdell’s speedy trial clock 

began to run on August 14, 2019, the day after his arraignment on 

the November 2018 indictment. See 18 U.S.C. § 3161(c)(1);

Yunis, 723 F.2d at 797 (observing that the arraignment date is 

excluded).2 The clock ran until October 20, 2019, the day before 

the government filed its motion to continue, for a total of 68

days. See Jones, 601 F.3d at 1255 (stating the date on which a 

pretrial motion is filed is excluded). One week later, on October 

28, 2019, Dowdell filed a motion to dismiss his indictment, which 

also tolled the speedy trial clock. See 18 U.S.C. § 3161(h)(1)(D).

The clock was tolled until January 9, 2020, the date of the 

hearing on, and the disposition of, Dowdell’s motion to dismiss the 

indictment and the government’s motion to continue, which the 

district court denied by implication. See id.; Jones, 601 F.3d at 1255. 

2 “We review for an abuse of discretion whether a district court should dismiss 

an indictment with or without prejudice for a violation of the Speedy Trial 

Act.” Ochoa, 941 F.3d at 1100 n.17 (quotation marks omitted).

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12 Opinion of the Court 22-11822

Therefore, when the district court dismissed the 2018 indictment 

on January 9, 2020, the 70-day speedy trial clock had not lapsed.

C. Dismissal of the 2018 Indictment Without Prejudice

Because no Speedy Trial Act violation occurred, we cannot 

conclude that the district court abused its “broad discretion” when 

it dismissed the November 13, 2018, indictment without prejudice. 

United States v. Larson, 627 F.3d 1198, 1211 (10th Cir. 2010)

(quotation marks omitted). In fact, the district court was not 

required to grant Dowdell’s motion to dismiss the 2018 indictment 

at all—much less with prejudice—given the Speedy Trial Act was 

not violated as to his 2018 indictment.

And, as the government points out, even when the Speedy 

Trial Act is violated, the district court still has the discretion to 

dismiss an indictment without prejudice, and Dowdell has not 

shown the district court abused its discretion in dismissing the 

indictment without prejudice.

In sum, given the seriousness of Dowdell’s charge and the 

absence of any speedy trial delay, the district court did not abuse its 

discretion in dismissing the November 13, 2018, indictment 

without prejudice. See Jones, 601 F.3d at 1257; United States v. Russo, 

741 F.2d 1264, 1267 (11th Cir. 1984) (“Where the crime charged is 

serious, the [district] court should dismiss [with prejudice] only for 

a correspondingly severe delay.”).

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D. Denial of Dowdell’s Motion to Dismiss the 2021 

Indictment

Next, Dowdell argues that the district court erred in denying 

his motion to dismiss the May 12, 2021, indictment because it failed 

to consider the nearly 17-month preindictment delay between the 

January 9, 2020, dismissal of his 2018 indictment and his May 12, 

2021, reindictment. This argument also lacks merit.

This Court has long held that, when an indictment is 

dismissed on the motion of the defendant, and the defendant is 

later indicted for the same offense, the speedy trial clock “begin[s] 

to run anew from a subsequent arrest or indictment rather than 

from the date of the original arrest or indictment.” United States v. 

Brown, 183 F.3d 1306, 1310–11 (11th Cir. 1999); see also United States 

v. Rubin, 733 F.2d 837, 840 (11th Cir. 1984) (“Where an indictment 

is dismissed on the motion of the defendant, or for reasons other 

than the motion or request of the government, the 70-day time 

period begins to run anew with the return of a superseding 

indictment.”).

Because the November 13, 2018, indictment was dismissed 

on Dowdell’s October 28, 2019, motion, the speedy trial clock reset 

when Dowdell was indicted for the same offense on May 12, 2021. 

See Brown, 183 F.3d at 1310–11; Rubin, 733 F.2d at 840. Thus, the 

district court did not err when it failed to consider the 

preindictment delay between the 2018 indictment and the 2021 

indictment.

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Dowdell does not otherwise challenge the denial of his 

motion to dismiss his May 12, 2021, indictment on Speedy Trial Act

grounds. We thus conclude that the district court did not abuse its 

discretion in finding that the speedy trial clock had not expired.

IV. SIXTH AMENDMENT RIGHT TO A SPEEDY TRIAL

The Sixth Amendment to the United States Constitution 

provides that “[i]n all criminal prosecutions, the accused shall enjoy 

the right to a speedy . . . trial.” U.S. Const., amend. VI. The 

Supreme Court has established a four-factor test to determine 

whether a defendant has been deprived of the constitutional right 

to a speedy trial: (1) the length of the delay; (2) the reason for the 

delay; (3) the defendant’s assertion of the right; and (4) the 

prejudice to the defendant. Barker v. Wingo, 407 U.S. 514, 530–33, 

92 S. Ct. 2182, 2191–93 (1972).

“The first factor, length of the delay, serves a triggering 

function.” United States v. Oliva, 909 F.3d 1292, 1298 (11th Cir. 

2018). Unless some “presumptively prejudicial” period of delay 

occurred, we need not examine the other three factors. United 

States v. Register, 182 F.3d 820, 827 (11th Cir. 1999). “Delays 

exceeding one year are generally found to be presumptively 

prejudicial.” United States v. Ingram, 446 F.3d 1332, 1336 (11th Cir. 

2006) (quotation marks omitted).

In Ingram, our Court did not consider the defendant’s 

preindictment delay when deciding whether his Sixth Amendment 

speedy trial delay was presumptively prejudicial for purposes of the 

first Barker factor. Id. at 1339. Our Court explained that “[o]nly 

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pretrial delay following a person’s arrest, charge, or indictment is 

relevant to whether the Speedy Trial Clause of the Sixth 

Amendment is triggered.” Id.

When an indictment is dismissed, and the defendant is later 

charged with the same offense, “[a]ny undue delay after charges 

are dismissed, like any delay before charges are filed, must be 

scrutinized under the Due Process Clause, not the Speedy Trial 

Clause.” United States v. MacDonald, 456 U.S. 1, 7, 102 S. Ct. 1497, 

1501 (1982); see also United States v. McDaniel, 631 F.3d 1204, 1209 

n.2 (11th Cir. 2011) (“The Sixth Amendment speedy trial guarantee 

was no longer effective for McDaniel’s original indictment once the 

district court dismissed it . . . .”); United States v. Hernandez, 724 F.2d 

904, 906–07 (11th Cir. 1984) (concluding that, where the original 

indictment was dismissed on the defendant’s motion, and the 

defendant was reindicted for the same crimes one month later, the 

Sixth Amendment speedy trial delay began to run on the date of his 

arraignment after his second indictment).

Dowdell argues that the nearly 23-month delay between his 

initial August 12, 2019, arrest and his June 22, 2021, initial 

appearance on the second indictment deprived him of his Sixth 

Amendment right to a speedy trial.3 However, Dowdell’s 

argument ignores that the November 13, 2018, indictment was 

3 Whether the government violated a defendant’s constitutional right to a 

speedy trial is a mixed question of fact and law. United States v. Machado, 886 

F.3d 1070, 1079 n.7 (11th Cir. 2018). We review a district court’s legal 

conclusions de novo and its factual findings for clear error. Id.

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dismissed on Dowdell’s motion, and Dowdell was reindicted on 

May 12, 2021, for the same offense. For purposes of the Sixth 

Amendment speedy trial analysis, we consider only the 

nine-month delay between the May 12, 2021, indictment and 

Dowdell’s February 3, 2022, guilty plea. See MacDonald, 456 U.S. at 

7, 102 S. Ct. at 1501; McDaniel, 631 F.3d at 1209 n.2; Hernandez, 724 

F.2d at 906–07.

This nine-month delay was not presumptively prejudicial. 

See Ingram, 446 F.3d at 1336. We therefore conclude that Dowdell’s 

right to a speedy trial was not violated without reaching the other

Barker factors. See Register, 182 F.3d at 827; see also United States v. 

Derose, 74 F.3d 1177, 1185 (11th Cir. 1996) (concluding that an 

eight-month delay between the defendants’ indictment and their 

trial was “insufficient to merit a Sixth Amendment speedy trial 

violation inquiry”).

We also reject Dowdell’s argument about how he was 

placed on a “federal hold” while he was in state custody. The 

record shows that, before Dowdell’s reindictment on May 12, 2021, 

he was in state custody on pending state charges. In any event, as 

the Supreme Court has recognized, “an arrest or indictment 

by one sovereign would not cause the speedy trial guarantees to 

become engaged as to possible subsequent indictments by another

sovereign.” MacDonald, 456 U.S. at 10 n.11, 102 S. Ct. at 1503 n.11. 

Because Dowdell had only state charges between the January 9, 

2020, dismissal of Dowdell’s 2018 indictment and his May 12, 2021,

indictment, no constitutional speedy trial delay occurred.

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Accordingly, the district court did not abuse its discretion in 

denying Dowdell’s motion to dismiss his 2021 indictment on Sixth 

Amendment grounds.4

V. CONCLUSION

For these reasons, we affirm the district court’s (1) dismissal

of the 2018 indictment without prejudice, and (2) denial of

Dowdell’s motion to dismiss the 2021 indictment.

AFFIRMED.

4 To the extent that Dowdell contends that the 17-month preindictment delay 

between the January 9, 2020, dismissal of his 2018 indictment and his May 12, 

2021, reindictment violated his Fifth Amendment due process rights, this 

argument is also without merit. “To prove a due process violation resulting 

from a pre-indictment delay, [a defendant] must show: (1) actual prejudice to 

[his] defense from the delay; and (2) that the delay resulted from a deliberate 

design by the government to gain a tactical advantage.” United States v. 

Thomas, 62 F.3d 1332, 1339 (11th Cir.1995). Even if Dowdell could 

demonstrate actual prejudice to his defense, he does not argue, and the record 

does not show, that the government delayed in indicting Dowdell to gain a 

tactical advantage. See id.

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