United States v. Alfonso Hernandez

FILED
NOT FOR PUBLICATION
OCT 16 2018
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, Nos. 17-10096
17-10320
Plaintiff-Appellee,
D.C. No.
v. 1:12-cr-00382-DAD-BAM-1
ALFONSO HERNANDEZ,
MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of California
Dale A. Drozd, District Judge, Presiding
Submitted October 10, 2018**
San Francisco, California
Before: McKEOWN, W. FLETCHER, and BYBEE, Circuit Judges.
Alfonso Hernandez has appealed his conviction on charges of receipt and
distribution of child pornography and his corresponding 210-month prison
*
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).
sentence. Hernandez argues that the district court should have dismissed the
indictment against him because the 559-day period between his arraignment and
trial violated the Speedy Trial Act. Further, he argues that the district court failed
to make adequate findings of fact in support of its sentence. We affirm the district
court in full.
I. SPEEDY TRIAL ACT CLAIM
The Speedy Trial Act guarantees a criminal defendant a trial within 70 days
of the later of his indictment or arraignment, subject to certain exclusions. 18
U.S.C. § 3161. Where the Act is violated, the remedy is dismissal of the
indictment. See 18 U.S.C. § 3162(a)(2). However, dismissal is not automatic:
“Failure of the defendant to move for dismissal prior to trial or entry of a plea of
guilty or nolo contendere shall constitute a waiver of the right to dismissal.” Id.;
United States v. Brown, 761 F.2d 1272, 1276–77 (9th Cir. 1985) (holding that
defendant’s “failure to move for dismissal under the Speedy Trial Act prior to trial
results in waiver of the right to dismissal under it” (internal citation and alteration
omitted)). Thus, the defendant bears the burden of raising his Speedy Trial Act
claim in a timely motion to dismiss, or otherwise sees this argument waived.
Hernandez and his counsel chose not to file a motion to dismiss, and
Hernandez’s pre-trial statements and actions cannot be construed to override this
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decision. In lieu of filing a motion, Hernandez sent an in propria persona letter to
the district court expressing concern about the Speedy Trial Act, and then informed
the court at a hearing that he wanted his counsel to seek dismissal on various non-
specific constitutional grounds. The court correctly explained to Hernandez that he
needed to discuss these matters with counsel, and then set a trial date. From this
point forward, neither Hernandez nor his counsel so much as suggested that he
would move to dismiss the indictment. As this court held in United States v. Lam,
251 F.3d 852, 854, 858 (9th Cir. 2001), absent a showing of deficient performance
of counsel, a defendant’s letters to the court and oral expression of a desire for a
speedy trial are insufficient to override counsel’s decision not to file a motion to
dismiss the indictment. Cf. United States v. Hall, 181 F.3d 1057, 1060–61 (9th
Cir. 1999) (concluding that the defendant preserved his speedy trial right,
notwithstanding his lawyer’s decision not to move to dismiss, where the defendant
filed in propria persona a motion for substitution of counsel and a motion to
dismiss). Because Hernandez waived his Speedy Trial Act claim by failing to
move to dismiss the indictment in the district court, we decline to address the
merits of his Speedy Trial Act claim.
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II. SENTENCING CLAIM
Hernandez also asserts that the district court failed to properly support its
sentence with findings of fact. We review the district court’s sentencing decisions
for abuse of discretion. Gall v. United States, 552 U.S. 38, 51 (2007). The
sentence is reviewed for reasonableness, and only a procedurally erroneous or
substantively unreasonable sentence is set aside. Id. at 46, 51.
As a matter of procedural due process, “a sentencing judge must explain a
sentence sufficiently to communicate that a reasoned decision has been made and
permit meaningful appellate review.” United States v. Rudd, 662 F.3d 1257, 1260
(9th Cir. 2011) (internal quotation marks omitted). Here, the district court more
than satisfied this constitutional duty, citing to eight mitigating factors that
reasonably support its decision to impose a below-Guidelines sentence. The
district court’s explanation was sufficient to “permit meaningful appellate review,”
and we are satisfied that the sentence imposed was not an abuse of discretion. See
id.
For the forgoing reasons, the judgment and sentence of the district court are
AFFIRMED.
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