United States v. Luis Alfaro-Hidalgo

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 4, 2022
• Docket: 21-10066
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 4 2022 MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT U.S. COURT OF APPEALS

UNITED STATES OF AMERICA, No. 21-10066 Plaintiff-Appellee, D.C. No. 3:19-cr-00035-MMD-WGC-1 v. MEMORANDUM* LUIS OSWALDO ALFARO- HIDALGO, AKA Carlos Figueroa, Defendant-Appellant.

Appeal from the United States District Court for the District of Nevada Miranda M. Du, Chief District Judge, Presiding

Submitted December 9, 2021** San Francisco, California

Before: GRABER and COLLINS, Circuit Judges, and CHOE-GROVES,*** Judge.

Luis Oswaldo Alfaro-Hidalgo appeals his conviction, after a conditional plea

of guilty, to a single count of violating 8 U.S.C. § 1326(a). He contends that the

district court erred in denying his motion to dismiss his indictment based on an

asserted violation of his rights under the Sixth Amendment’s Speedy Trial Clause.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes that this case is suitable for decision without oral argument. See FED. R. APP. P. 34(a)(2)(C). *** The Honorable Jennifer Choe-Groves, Judge for the United States Court of International Trade, sitting by designation. We have jurisdiction under 28 U.S.C. § 1291. Reviewing de novo, United States v.

Myers, 930 F.3d 1113, 1118 (9th Cir. 2019), we affirm.

We evaluate Sixth Amendment speedy trial claims using the four-factor test

set forth in Barker v. Wingo, 407 U.S. 514 (1972). Under that test, we consider the

“[l]ength of delay, the reason for the delay, the defendant’s assertion of his right,

and prejudice to the defendant.” Id. at 530. No one factor is either “necessary or

sufficient,” and “courts must still engage in a difficult and sensitive balancing

process.” Id. at 533.

As for the first factor, the defendant must make an initial showing that the

length of delay “has crossed the threshold dividing ordinary” delay from that

which courts will deem “unreasonable enough to trigger” an inquiry under the

Barker factors. Doggett v. United States, 505 U.S. 647, 651–52 & n.1 (1992). We

measure the delay “from the time of the indictment to the time of trial,” United

States v. Sears, Roebuck & Co., 877 F.2d 734, 739 (9th Cir. 1989), and follow the

“general consensus among the courts of appeals that eight months constitutes the

threshold minimum,” United States v. Gregory, 322 F.3d 1157, 1162 n.3 (9th Cir.

2003). Here, the delay between Alfaro-Hidalgo’s July 18, 2019 indictment and his

initial March 24, 2020 trial date exceeds eight months, and therefore the requisite

threshold, by only a few days. Because the length of this delay barely exceeds the

minimum, it “does not weigh heavily” in Alfaro-Hidalgo’s favor in the Barker

2 analysis. Id. at 1162 (22-month delay); see also United States v. Lam, 251 F.3d

852, 857 (9th Cir. 2001) (15-month delay “militates slightly” in defendant’s favor).

The second factor is the reason for the delay. The Government proffered

two reasons, each of which accounts for different portions of the delay. First, the

Government waited for Alfaro-Hidalgo’s then-pending state prosecution to be

completed before filing a writ to transfer him into federal custody. We have

declined to adopt any bright-line rule about whether delay caused by concurrent

prosecutions is justified and have instead held that “a court must consider the

nature and circumstances of the delay” in light of the facts of the case. Myers, 930

F.3d at 1121–22. Alfaro-Hidalgo pleaded guilty in state court only three weeks

after his federal indictment, and he was sentenced less than seven weeks after his

guilty plea. Given the very modest delay in allowing the state court proceedings to

come to their prompt conclusion, we conclude that the Government’s decision to

allow those proceedings to wrap up, rather than to have each sovereign writ

Alfaro-Hidalgo in and out of custody, was justifiable. Id. at 1121 (noting that,

while a per se rule is unwarranted, the “administrative costs” of multiple “opposing

writs” remains a factor to be considered) (citation omitted).1

The Government’s second justification for the delay was that, during the

1 We therefore attach little weight, in this case, to Alfaro-Hidalgo’s contentions about the respective locations of the relevant custodial facilities. Accordingly, his motion for judicial notice is denied.

3 month immediately following the completion of Alfaro-Hidalgo’s state

prosecution, the Assistant U.S. Attorney assigned to the case was dealing with the

illness of an out-of-town family member. While this might account for some

period of additional delay, it was nonetheless negligent not to take any steps to

transfer Alfaro-Hidalgo until two months after the state case was over. Although

negligence “is obviously to be weighed more lightly” than bad faith, “it still falls

on the wrong side of the divide between acceptable and unacceptable reasons” for

delay. Doggett, 505 U.S. at 657.

In assessing the significance of these two reasons for the two different

portions of the delay, we note that Alfaro-Hidalgo’s sole plausible claim of

prejudice is that his federal criminal history score in his § 1326 case was adversely

affected by the completion of his state prosecution. See infra at 5. Thus, the

relevant delay is the initial portion that we have concluded was justified. This

factor thus weighs in favor of the Government.

The third factor focuses on “whether and how a defendant asserts his right”

to a speedy trial. 407 U.S. at 531. After appearing in federal court, Alfaro-

Hidalgo stipulated to a six-month continuance of his trial and only moved to

dismiss the indictment more than two months after his originally scheduled trial

date. But given that his claim is that he was already prejudiced by the initial delay

that allowed the completion of his state case before he first arrived in federal court,

4 Alfaro-Hidalgo’s stipulation to a six-month continuance is not inconsistent with

that claim of prejudicial delay.2 This factor is thus neutral.

We have described the fourth factor, prejudice, as the “critical” factor.

Gregory, 322 F.3d at 1162. As noted, Alfaro-Hidalgo’s claim is that he was

prejudiced because the completion of his state proceedings adversely affected the

federal guidelines range in his § 1326 case. If the federal case had been completed

first, Alfaro-Hidalgo contends, his guidelines range would have been 15-to-21-

months rather than 46-to-57-months. But as we held in Gregory, “in light of the

district court’s ability to depart downward,” this sort of claim of prejudice to the

ensuing federal sentencing “is speculative rather than actual.” Id. at 1164. Indeed,

the holding of Gregory applies with even greater force under current federal

sentencing law, in which the guidelines are no longer mandatory and judges have

substantial discretion, not just to depart within the guidelines, but to vary from

them. See, e.g., Spears v. United States, 555 U.S. 261, 264–65 (2009). And, as it

turned out, Alfaro-Hidalgo received a 15-month sentence.

Taking the Barker factors together, we conclude that this case presents a

modest delay, the relevant portion of which was amply justified, and a claim of

2 To the extent that Alfaro-Hidalgo claims that the delay of his federal first appearance had the effect of delaying the start of his 70-day clock under the Speedy Trial Act, that speculative claim of prejudice is hard to square with his acquiescence in a six-month delay.

5 prejudice that was speculative rather than actual. Under these circumstances, the

district court correctly rejected Alfaro-Hidalgo’s claim under the Speedy Trial

Clause.

AFFIRMED.