United States v. 2012-03-27 | 11-30182 | USA V. GERARDO RIOS-OROZCO | nonprecedential | memorandum…

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, ) No. 11-30182
)
Plaintiff – Appellee, ) D.C. No. 2:05-cr-00113-WFN-1
)
v. ) MEMORANDUM*
)
GERARDO RIOS-OROZCO, AKA )
Gerardo Rio-Orosco, AKA )
Gerardo Rios-Orosco, )
)
Defendant – Appellant. )
)
)
UNITED STATES OF AMERICA, ) No. 11-30183
)
Plaintiff – Appellee, ) D.C. No. 2:10-cr-02027-WFN-1
)
v. )
)
GERARDO RIOS-OROZCO, )
)
Defendant – Appellant. )
)
)
Appeal from the United States District Court
for the Eastern District of Washington
FILED
MAR 27 2012
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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The Honorable James S. Gwin, United States District Judge for the**
Northern District of Ohio, sitting by designation.
See United States v. King, 483 F.3d 969, 976 (9th Cir. 2007); United States1
v. Gregory, 322 F.3d 1157, 1162 (9th Cir. 2003).
2
Wm. Fremming Nielsen, Senior District Judge, Presiding
Argued and Submitted March 6, 2012
Seattle, Washington
Before: FERNANDEZ and PAEZ, Circuit Judges, and GWIN, District**
Judge.
Gerardo Rios-Orozco appeals his conviction and sentence for being a
removed alien found in the United States (No. 11-30183). 8 U.S.C. § 1326. He
also appeals the judgment revoking his supervised release and the sentence for that
revocation (No. 11-30182). We affirm.
(1) Rios first contends that the indictment for being found in the United
States should have been dismissed due to a violation of the speedy trial guarantee
of the Sixth Amendment. See U.S. Const. amend. VI. We disagree. The delay
was sufficient to require application of the four-factor balancing test. See Barker
v. Wingo, 407 U.S. 514, 530–34, 92 S. Ct. 2182, 2192–94, 33 L. Ed. 2d 101
(1972); United States v. Mendoza, 530 F.3d 758, 762 (9th Cir. 2008). However,
the delay was not excessive and was due to mere negligence on the part of the1

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See Barker, 407 U.S. at 531, 92 S. Ct. at 2192; United States v. Beamon,2
992 F.2d 1009, 1013 (9th Cir. 1993).
See Gregory, 322 F.3d at 1163; United States v. Lam, 251 F.3d 852,3
859–60 (9th Cir. 2001), amended by 262 F.3d 1033 (9th Cir. 2001); United States
v. Guerrero, 756 F.2d 1342, 1350 (9th Cir. 1984) (per curiam). We recognize that
he claims some anxiety, but under the circumstances, we see that as a minimal
indication of prejudice. See Guerrero, 756 F.2d at 1350; United States v.
Simmons, 536 F.2d 827, 831–32 (9th Cir. 1976); see also United States v.
Mohawk, 20 F.3d 1480, 1486 (9th Cir. 1994).
See United States v. Brebner, 951 F.2d 1017, 1025–26 (9th Cir. 1991); see4
also United States v. Batterjee, 361 F.3d 1210, 1216–17 (9th Cir. 2004).
3
government, and the evidence does not show that his defense was impaired by the2
delay. On balance, his constitutional right to a speedy trial was not violated. See3
Guerrero, 756 F.2d at 1350; United States v. Holm, 550 F.2d 568, 569 (9th Cir.
1977) (per curiam); Simmons, 536 F.2d at 832.
(2) Rios next asserts that the district court erred when it precluded him
from presenting his defense of entrapment by estoppel to the jury. Again, we
disagree. He did not proffer sufficient evidence to establish a prima facie case.
See United States v. Schafer, 625 F.3d 629, 637–38 (9th Cir. 2010), cert. denied,
___ U.S. ___, 131 S. Ct. 2919, 179 L. Ed. 2d 1259 (2011); United States v.
Ramirez-Valencia, 202 F.3d 1106, 1109 (9th Cir. 2000) (per curiam). At the very
least, he failed to show that the agents were aware of all of the salient facts, or that4

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See Ramirez-Valencia, 202 F.3d at 1109; Brebner, 951 F.2d at 1025–26.5
See Schafer, 625 F.3d at 637–38; cf. United States v. Tallmadge, 829 F.2d6
767, 774–75 (9th Cir. 1987).
We do recognize that there are substantial reasons to question this7
assumption. See, e.g., United States v. Perdomo-Espana, 522 F.3d 983, 988–89
(9th Cir. 2008); Arellano-Rivera, 244 F.3d at 1126.
Review is for plain error. See United States v. Ameline, 409 F.3d 1073,8
1078 (9th Cir. 2005) (en banc).
United States v. Fifield, 432 F.3d 1056, 1063 (9th Cir. 2005).9
4
they affirmatively misled him, or that he reasonably relied on any of their actions5
when he remained in the United States after his hospital stay.6
(3) Similarly, Rios did not establish a prima facie case of necessity. See
United States v. Arellano-Rivera, 244 F.3d 1119, 1125–26 (9th Cir. 2001).
Assuming, without deciding, that necessity did prompt his initial desire to enter7
the United States, he simply failed to present evidence that necessity justified his
remaining in the United States after his hospital stay. Id.; see also United States v.
Pina-Jaime, 332 F.3d 609, 612–13 (9th Cir. 2003); United States v. Ortiz-Villegas,
49 F.3d 1435, 1436 (9th Cir. 1995).
(4) Finally, Rios asserts that the district court erred when it determined8
that his federal sentences would run consecutively to each other and to a state court
sentence for robbery. However, the district court exercised its discretion after9

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See 18 U.S.C. § 3553(a); USSG §5G1.3(c) & comment. (n.3(A)) (Nov.10
2010); United States v. Arellano-Torres, 303 F.3d 1173, 1181 (9th Cir. 2002).
5
considering the evidence and the various sentencing factors. We cannot say that10
it erred in so doing. See United States v. Gutierrez-Silva, 353 F.3d 819, 823 (9th
Cir. 2003).
AFFIRMED.

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