Dismissal of indictment without prejudice is proper remedy for speedy trial delay that is not result of culpable neglect or misconduct by government

INDICTMENT/SENTENCING United States v. Cano-Silva, No. 03-4059, ___ F.3d ___(10th Cir. mar. 28, 2005)(Utah). HELD: (1) District court properly dismissed indictment without prejudice where violation of Speedy Trial Act was not result of intentional dilatory conduct or pattern of neglect on part of government. Defendant may not wait passively for Speedy Trial Act time to run and then demand dismissal of indictment with prejudice. (2) Whether district court erred in granting minor participant adjustment under sentencing guidelines or erred in failing to cap base offense level at thirty due to amendment to guidelines, defendant must be resentenced. Because United States v. Booker, 125 S.Ct. 738 (2005), held that sentencing guidelines are no longer mandatory, on remand, district court must determine anew whether defendant was minor participant under guidelines. District court must then take account of guidelines together with other sentencing goals in imposing sentence. Read the opinion here.