United States of America v. Vicente Diaz-Garcia

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The Honorable Gordon J. Quist, Senior District Judge, United States**
District Court for the Western District of Michigan, sitting by designation.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
VICENTE DIAZ-GARCIA,
Defendant - Appellant.
No. 12-30044
D.C. No. 2:09-cr-02043-EFS
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of Washington
Edward F. Shea, District Judge, Presiding
Argued and Submitted November 7, 2012
Seattle, Washington
Before: W. FLETCHER and FISHER, Circuit Judges, and QUIST, District Judge.**
Vicente Diaz-Garcia appeals his conviction and sentence for illegal reentry into
the United States in violation of 8 U.S.C. § 1326. We reject his arguments and affirm.
We have jurisdiction pursuant to 28 U.S.C. § 1291.
FILED
DEC 21 2012
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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We review Sixth Amendment speedy trial claims de novo and underlying
factual findings for clear error. United States v. Mendoza, 530 F.3d 758, 762 (9th Cir.
2008). We review a district court’s decision whether to reduce a defendant’s sentence
for acceptance of responsibility for clear error. United States v. Johnson, 581 F.3d
994, 1001 (9th Cir. 2009). Absent a defendant’s objection before the district court,
we review a defendant’s sentence for plain error. United States v. Charles, 581 F.3d
927, 932 (9th Cir. 2009).
First, the district court did not commit clear error in finding that delaying the
federal prosecution until after the state trial was justified because simultaneous state
and federal trials presented a risk of conflicting hearing dates and transportation.
Similarly, the district court’s finding that there was no evidence of bad faith by the
government for the four-month post-sentencing delay was not clear error. Moreover,
the district court did not clearly err in finding that Diaz-Garcia did not raise his right
to a speedy trial or express a desire to proceed on the indictment until after his
arraignment, despite much earlier knowledge of his indictment. Therefore, applying
the relevant factors, Barker v. Wingo, 407 U.S. 514, 530 (1972) (finding the four
relevant factors to a Sixth Amendment speedy trial claim are length of the delay,
reason for the delay, the defendant’s assertion of the right, and prejudice to the
defendant), we affirm on this issue.

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Diaz-Garcia next concedes that this panel is bound by Ninth Circuit precedent,
Johnson, 581 F.3d at 1003–04, to reject his argument that the government was
required to move for a three-point reduction in his sentencing offense level for
acceptance of responsibility.
Finally, we agree that the district judge, during sentencing, made an inaccurate
reference to an outdated cognitive disorder. However, reviewing the sentence for
plain error, we affirm the district court. The court reviewed and weighed evidence of
multiple mitigating factors, only one of which was Diaz-Garcia’s proffered cognitive
disorder, and sentenced Diaz-Garcia to the bottom of the guideline range.
AFFIRMED.

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