United States v. Solis

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-21020
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RUMALDO SOLIS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-94-CR-272-14
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August 20, 2002
Before HIGGINBOTHAM, DAVIS, and PARKER, Circuit Judges.
PER CURIAM:*
Rumaldo Solis, federal prisoner #66932-079, appeals the
denial of his FED. R. CRIM. P. 12(b)(2) motion. He has also moved
this court to dismiss his appeal without prejudice.
Solis challenges the indictment on the bases that it failed
to cite the statutes under which he was indicted, it omitted the
time parameters during which the conspiracy was alleged to have
occurred, and it did not explicitly state the amount of drugs
*
Pursuant to 5TH CIR. 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that this opinion should not be published and is not precedent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 5TH CIR.
R. 47.5.4.
No. 01-21020
-2-
with which he was charged. Jurisdiction did not lie in the
district court under Rule 12(b)(2), however, because none of
these allegations amounts to a claim that the indictment failed
to charge an offense. Therefore, he was required to raise these
alleged defects pretrial. See FED. R. CRIM. P. 12(b)(2); United
States v. Freeman, 619 F.2d 1112, 1118 (5th Cir. 1980)
(contention that the indictment lacked the specificity required
by the Sixth Amendment was waived by failure to object before
trial).
Solis's motion to dismiss the indictment was thus
unauthorized and without a jurisdictional basis. See United
States v. Early, 27 F.3d 140, 142 (5th Cir. 1994) (noting that
district court should have dismissed unauthorized postconviction
motion for lack of jurisdiction). This appeal is without
arguable merit and therefore dismissed as frivolous. See Howard
v. King, 707 F.2d 215, 219-20 (5th Cir. 1983); 5TH CIR. R. 42.2.
APPEAL DISMISSED; MOTION TO DISMISS APPEAL DENIED.