United States v. Thomas Hidalgo ( 2017 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 6 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 16-50160
Plaintiff-Appellee, D.C. No. 2:13-cr-00402-PA-1
v.
MEMORANDUM*
THOMAS HIDALGO, AKA Diablo,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
Percy Anderson, District Judge, Presiding
Submitted August 31, 2017**
Pasadena, California
Before: W. FLETCHER and IKUTA, Circuit Judges, and BARKER,*** District
Judge.
Thomas Hidalgo was charged in an indictment with two counts of
distributing a controlled substance, in violation of 18 U.S.C. §§ 841(a)(1),
*
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).
***
The Honorable Sarah Evans Barker, United States District Judge for
the Southern District of Indiana, sitting by designation.
(b)(1)(B), and (b)(1)(C). He moved to dismiss the indictment on the grounds that
the 23-month period of post-indictment delay prior to his arrest violated his Sixth
Amendment right to a speedy trial and Federal Rule of Criminal Procedure 48(b).
The district court conducted an evidentiary hearing and ultimately denied his
motion to dismiss. Thereafter, Defendant entered a conditional guilty plea to both
counts and was sentenced to 60 months’ imprisonment. Hidalgo appeals the
district court’s denial of his motion to dismiss the indictment and his sentence.
We have jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291 and
review the district court’s legal rulings de novo. United States v. Gregory, 322
F.3d 1157, 1160 (9th Cir. 2003); United States v. Allen, 153 F.3d 1037, 1040 (9th
Cir. 1998). The district court’s factual findings underlying the decision on the
constitutional claim are reviewed for clear error. Gregory, 322 F.3d at 1160-61.
The evidence underlying the district court’s factual conclusions was
sufficient and persuasive. There was no error in the denial of Hidalgo’s motion to
dismiss on Sixth Amendment grounds. The district court properly balanced the
four factors set out in Barker v. Wingo, 407 U.S. 514 (1972), for analyzing the
impact of such delay, to wit, the length of the delay, the reason for the delay, the
defendant’s assertion of his right, and prejudice to the defendant, and in
determining that there was no constitutional violation. It is undisputed that the 23-
month post-indictment delay was “presumptively prejudicial” and thus
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“unreasonable enough to trigger the Barker enquiry.” Doggett v. United States, 505
U.S. 647, 652 n.1 (1992). However, the remaining Barker factors do not support
Hidalgo’s constitutional claim for relief.
In reviewing the second Barker factor, the reason for the delay, the district
court determined that the government had made reasonably diligent efforts to find
Hidalgo between 2013 and 2015 and that its negligence was not responsible for the
post-indictment delay in locating him.1 United States v. Mendoza, 530 F.3d 758,
763 (9th Cir. 2008). We find no error in those conclusions.
The third Barker factor, to wit, the defendant’s assertion of the right to a
speedy trial, did not, according to the district court’s finding, weigh in Hidalgo’s
favor, given that he had requested two trial continuances in order to apply for a
diversion program before asserting that right. See, e.g., United States v. Corona-
Verbera, 509 F.3d 1105, 1116 (9th Cir. 2007) (“Because [the defendant] asserted
his speedy trial right only after requesting numerous continuances, we find this
1
The government had made sustained, targeted efforts to locate Hidalgo
throughout this time period, including: (1) conducting surveillance at the address
listed on his California driver’s license, his business address, and his prior mailing
address as well as at multiple additional locations that searches of law enforcement
databases revealed were potentially connected to him; (2) placing Hidalgo’s
warrant into the NCIC database so that other federal, state, or local law
enforcement agencies would find it, if they encountered him; (3) seeking the
assistance of the Los Angeles County Police Department in their efforts to locate
him; (4) conducting internet searches for Hidalgo, including on social media
websites; and (5) arresting him at the airport after receiving information that he
was scheduled for a flight from Los Angeles International Airport to El Salvador.
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factor weighs neither in favor of dismissal nor in favor of the government.”). We
find no error in this conclusion as well.
Because the government was not negligent in its efforts to locate Hidalgo
and pursued him with reasonable diligence from the time of his indictment up to
his arrest, he is required under the fourth Barker factor “to demonstrate specific
prejudice; prejudice is not presumed.” Id. at 1116. As the district court found,
Hidalgo’s general and speculative assertions that the delay cost him the
opportunity to locate former employees who might have been witnesses and
potentially resulted in the diminution of the memory of witnesses or the loss and
destruction of evidence clearly do not rise to the level of actual prejudice.
In sum, the Barker analysis was unavailing as a basis for Hidalgo’s
requested dismissal of the indictment. The district court did not err in denying his
motion to dismiss, so we affirm that holding.
Hidalgo also appeals his sentence, arguing that the district court erred by
assessing criminal history points under the 2016 United States Sentencing
Guidelines (“U.S.S.G.”) for his uncounseled 2009 DUI state misdemeanor
conviction. He contends that the DUI conviction was unconstitutional because he
was not adequately advised by the state court judge of the consequences of waiving
his right to counsel and proceeding pro se and was not provided the services of a
Spanish language interpreter during the state court proceedings. We disagree.
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The district court correctly held that the rights apprisal and waiver of
counsel form completed by Hidalgo, before he entered his plea of nolo contendere
in the state case, was textually sufficient to adequately and correctly inform him of
his rights, including his right to counsel, and the dangers he faced in giving up
those rights, as well as in providing the basis for a constitutionally valid waiver.
Although the state court judge did not re-advise Hidalgo in open court of the risks
of proceeding without counsel, it is well-established that the information a
defendant must have in order to intelligently waive counsel depends upon the
particular facts and circumstances of the case, “including the defendant’s education
or sophistication, the complex or easily grasped nature of the charge, and the stage
of the proceeding.” Iowa v. Tovar, 541 U.S. 77, 88 (2004). Here, the record
before the district court reflected that Hidalgo, a high school graduate who had
taken real estate classes and had run his own businesses, possessed the necessary
intelligence and sophistication to make the state court waiver decision knowingly
and voluntarily. The record also reflected that he did not demonstrate any signs of
having an English language communication barrier that affected the validity of his
waiver. These facts defeat this claim by Hidalgo, both factually and legally.
The district court correctly held that Hidalgo failed to establish by a
preponderance of the evidence that his 2009 conviction was unconstitutional and
that the judgment was not entitled to the benefit of the presumption of regularity
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that attaches to a state conviction under United States v. Dominguez, 316 F.3d
1054 (9th Cir. 2003). No error was committed by the district court judge in
including that conviction in the calculation of his criminal history score and in the
final sentence under the Sentencing Guidelines.
Even if the district court’s decision to include Hidalgo’s uncounseled DUI
misdemeanor in his criminal history category was erroneous, that error was
harmless because Hidalgo received the mandatory minimum sentence of 60
months’ imprisonment on count two of the indictment. This was the lowest
possible sentence, given the district court’s finding that Hidalgo was ineligible for
a safety valve reduction under 18 U.S.C. § 3553(f) (U.S.S.G. § 5C1.2), based on
his lack of candor and cooperation with the government. See United States v.
Mejia-Pimental, 477 F.3d 1100, 1103 (9th Cir. 2007) (holding that review of the
district court’s factual determination that a defendant is ineligible for safety valve
relief is for clear error).
AFFIRMED.
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