United States v. Arnulfo Araiza , 675 F. App'x 740 ( 2017 )

FILED
NOT FOR PUBLICATION
JAN 18 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-50492
Plaintiff-Appellee, D.C. No. 2:06-cr-00876-PA-1
v.
MEMORANDUM*
ARNULFO ARAIZA,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
Percy Anderson, District Judge, Presiding
Submitted January 12, 2017**
Pasadena, California
Before: TASHIMA, TALLMAN, and FRIEDLAND, Circuit Judges.
Arnulfo Araiza appeals the district court’s order denying his motion to
dismiss his indictment charging violation of 18 U.S.C. § 1542 based on post-
indictment delay under the Sixth Amendment. Araiza also appeals the district
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
court’s supervised release sentence and special conditions. We have jurisdiction
under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
We review the district court’s decision on a Sixth Amendment speedy trial
claim de novo and its factual determinations for clear error. United States v.
Gregory, 322 F.3d 1157, 1160 (9th Cir. 2003). To determine whether a
defendant’s Sixth Amendment speedy trial right has been violated, courts balance
the four factors described in Barker v. Wingo, 407 U.S. 514, 530 (1972), including
the “[l]ength of delay, the reason for the delay, the defendant’s assertion of his
right, and prejudice to the defendant.” Because we conclude the district court
properly weighed these factors, we affirm.
First, the district court properly found the eight-and-a-half year delay
between Araiza’s indictment on November 29, 2006, and his arrest on April 29,
2015, was presumptively prejudicial and “suffice[d] to trigger the speedy trial
enquiry.” Doggett v. United States, 505 U.S. 647, 652 (1992).
Second, the district court did not err when it found that Araiza caused the
delay. The government has “some obligation” to bring a defendant to trial, United
States v. Sandoval, 990 F.2d 481, 485 (9th Cir. 1993), and must pursue a defendant
with “reasonable diligence,” Doggett, 505 U.S. at 656. But the government is not
required to “make heroic efforts to apprehend a defendant who is purposefully
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avoiding apprehension.” Sandoval, 990 F.2d at 485 (quoting Rayborn v. Scully,
858 F.2d 84, 90 (2d Cir. 1988)).
Here, the district court properly found that Araiza was avoiding
apprehension. Agents attempted to serve the arrest warrant at Araiza’s last known
address on December 10, 2006, but were told that Araiza had moved to Mexico.
At this time, the agents informed Araiza’s sister of his outstanding arrest warrant.
The district court properly relied on these facts, and the fact that Araiza failed to
update his driver’s license and frequently changed residences between 2008 and
2015, to find that Araiza was “living under the radar” and seeking to avoid
apprehension.1 The district court also properly found that the government was
reasonably diligent in its pursuit based on (1) the government’s 2006 press release
identifying Araiza, his charged offense, and his fugitive status; (2) the
government’s entry of Araiza’s arrest warrant into the National Crime Information
Center database; (3) the government’s periodic checks on commercial databases
and with the California Department of Motor Vehicles database; (4) the
1
Araiza argues that any knowledge he had as to the government’s pursuit
was “superceded” when Customs and Border Patrol released him from a brief
detention at a San Diego port of entry, allowing him to voluntarily return to
Mexico on February 26, 2008. Araiza cites no case law to support his argument, or
to suggest that the district court was prohibited from drawing an adverse inference
from Araiza’s post-encounter frequent changes of residence and failure to update
his information.
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government’s aforementioned attempt to serve the arrest warrant; and (5) the fact
that the government informed Araiza’s sister of his arrest warrant. Ultimately, the
government was only able to find Araiza because his April 2015 DUI arrest
appeared in a warrant validation conducted later that same month. Because this is
not a case where the government “ma[de] no serious effort to find” Araiza, United
States v. Mendoza, 530 F.3d 758, 763 (9th Cir. 2008), the district court did not
clearly err when it found that Araiza caused the delay.
Third, the district court properly weighed the timely invocation factor
against Araiza because he caused the delay. See Doggett, 505 U.S. at 653.
Fourth, the district court properly found that Araiza was not prejudiced by
the delay. Because the government was reasonably diligent in its pursuit, Araiza
does not benefit from the presumption of prejudice that would result from a finding
of government negligence. See Mendoza, 530 F.3d at 763 (citing Doggett, 505
U.S. at 657). Araiza has not identified evidence of actual prejudice. Because
“[g]eneralized assertions of the loss of memory, witnesses, or evidence are
insufficient to establish actual prejudice[,]” United States v. Manning, 56 F.3d
1188, 1194 (9th Cir. 1995), the district court properly considered this factor when
it rejected Araiza’s motion to dismiss based on post-indictment delay.
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Araiza also appeals the district court’s supervised release sentence and
special conditions. He first argues the district court’s imposition of supervised
release was substantively unreasonable under 18 U.S.C. § 3553(a)(2). Because
Araiza did not object to supervised release below, we review for plain error. See
United States v. Garcia, 323 F.3d 1161, 1165 (9th Cir.2003). We find none.
Although a “court ordinarily should not impose a term of supervised release in a
case in which . . . the defendant is a deportable alien who likely will be deported
after imprisonment,” U.S.S.G. § 5D1.1(c), it may do so where supervised release
provides an “added measure of deterrence and protection based on the facts and
circumstances of a particular case,” id. cmt. n.5. Here, the district court considered
Araiza’s particular characteristics, including his familial ties in the United States.
It also considered the circumstances of the underlying offense, including the fact
that it involved unlawful attempts to obtain a United States passport. Even
assuming the district court erred by failing to distinguish its reasons for imposing
supervised release from its reasons for imposing the custodial sentence, Araiza
fails to demonstrate how such error affects his substantial rights. See United States
v. Olano, 507 U.S. 725, 732-35 (1993) (stating that under plain error review the
defendant bears the burden of proving that error affected his substantial rights).
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Finally, Araiza appeals the imposition of drug testing and treatment
conditions because he only has a history of alcohol abuse, and not drug abuse. We
review these conditions for abuse of discretion because Araiza objected during
sentencing, see United States v. Daniels, 541 F.3d 915, 924 (9th Cir. 2008), but
we find no such abuse. “Submission to drug testing is a mandatory and not a
discretionary condition of supervised release[,]” United States v. Carter, 159 F.3d
397, 399 (9th Cir. 1998) (citing 18 U.S.C. § 3583(d)), and the treatment condition
addresses both alcohol and drug abuse.
AFFIRMED.
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