United States v. Gerardo Mosquera ( 2014 )

FILED
NOT FOR PUBLICATION JUN 25 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-30392
Plaintiff - Appellee, DC No. 3:10 cr-0191 HZ
v.
MEMORANDUM*
GERARDO MOSQUERA,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Oregon
Marco A. Hernandez, District Judge, Presiding
Argued and Submitted May 16, 2014
Portland, Oregon
Before: ALARCÓN, TASHIMA, and IKUTA, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Appellant Gerardo Mosquera (“Mosquera”) was convicted of and sentenced
for two counts of a federal theft offense under 18 U.S.C. § 666(a)(1)(A).1 On
appeal, he challenges his conviction on speedy trial grounds, and separately argues
that the district court erred in denying his request for a downward departure based
on the conditions of his pretrial confinement in Columbia, in imposing a two-level
upward adjustment for obstruction of justice, and another two-level upward
adjustment for misuse of a Social Security number.
1. We do not reach the merits of Mosquera’s contentions that his speedy
trial rights were violated because we conclude that these claims were waived.
First, Mosquera waived his rights under the Speedy Trial Act by failing to file a
motion to dismiss on speedy trial grounds before trial. See 18 U.S.C. §
3162(a)(2).2 We similarly conclude that Mosquera voluntarily and knowingly
waived his Sixth Amendment right to a speedy trial. Although Mosquera initially
1
Mosquera was extradited from Colombia for these offenses, but the
government of Colombia denied extradition on the charge of misuse of a Social
Security Number.
2
The Act provides in relevant part:
Failure of the defendant to move for dismissal prior to trial or entry of a plea
of guilty . . . shall constitute a waiver of the right to dismissal under this
section.
18 U.S.C. § 3162(a)(2).
2
objected to a continuance, he consented to the continuance after the district court
explained that it was in his best interest to allow his attorney time to prepare for
trial and he agreed to the date on which the trial was ultimately scheduled.
Mosquera made no other objections on speedy trial grounds and failed to file any
motions claiming a speedy trial violation. Therefore, he waived his Sixth
Amendment speedy trial right. See Barker v. Wingo, 407 U.S. 514, 529 (1972).
2. We affirm the district court’s denial of a downward departure based
on the conditions of confinement Mosquera experienced while he was imprisoned
in Colombia awaiting extradition. We have not yet decided whether harsh pretrial
confinement conditions may be a basis for a downward departure under U.S.S.G. §
5K2.0. We need not decide that issue today, however, because, even assuming
that such a basis for departure exists, Mosquera has not made an adequate factual
showing that he would be entitled to such a departure. Nothing, no sworn
evidence, supports his allegations, except references to public websites describing
general prison conditions in Columbia.
3. The district court did not err in imposing a two-level upward
adjustment for obstruction of justice under U.S.S.G. § 3C1.1. Evidence at trial
demonstrated that Mosquera filed false records in a related administrative
proceeding, which is sufficient to support an upward adjustment. See id.
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4. Finally, the district court did not err in imposing a two-level upward
adjustment for fraudulent use of a Social Security Number pursuant to U.S.S.G. §
2B1.1(b)(11)(C). The adjustment does not violate the doctrines of criminality and
specialty because the evidence used to enhance Mosquera’s sentence was different
from that in the extradition request: Mosquera’s extradition was requested for
misuse of a Social Security number to obtain a car loan while his sentence was
enhanced for fraudulent use of a Social Security Number to open a bank account in
connection with the fraudulent scheme for which he was convicted. In any event,
the use of evidence of Mosquera’s social security violations to enhance his
sentence for the theft of federal funds is not “punishment” under the extradition
doctrine of specialty. See United States v. Lazarevich, 147 F.3d 1061, 1063-64
(9th Cir. 1998) (citing Witte v. United States, 515 U.S. 389, 399 (1995)).
The judgment of the district court is AFFIRMED.
4