244 F.3d 1119 (9th Cir. 2001), 00-50453, United States v. Rivera

Docket Nº:00-50453
Citation:244 F.3d 1119
Party Name:UNITED STATES OF AMERICA, Plaintiff-Appellee, v. HECTOR ARELLANO-RIVERA,Defendant-Appellant.
Case Date:April 04, 2001
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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244 F.3d 1119 (9th Cir. 2001)




No. 00-50453

United States Court of Appeals, Ninth Circuit

April 4, 2001

Argued and Submitted February 8, 2001

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Joseph S. Smith, Office of the United States Attorney, San Diego, California, for the plaintiff-appellee.

Benjamin P. Lechman, Federal Defenders of San Diego, Inc., San Diego, California, for the defendant-appellant.

Appeal from the United States District Court for the Southern District of California Gordon Thompson, Jr., Senior District Judge, Presiding. D.C. No.CR-00-00017-GT

Before: Edward Leavy, Stephen S. Trott, and Barry G. Silverman, Circuit Judges.

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TROTT, Circuit Judge:



Defendant-Appellant Hector Arellano-Rivera ("ArellanoRivera") was convicted of unlawfully reentering the United States after being deported in violation of 8 U.S.C.S 1326. In this appeal, Arellano-Rivera argues that the district court erred by (1) refusing to dismiss the indictment against him on the basis of Speedy Trial Act violations; (2) precluding him from presenting evidence he claims supports a necessity defense; and (3) enhancing his sentence based on prior aggravated felony convictions.

We have jurisdiction over this timely appeal under 28 U.S.C. S 1291, and for the reasons expressed below, we AFFIRM his conviction and sentence.



A. Pre-Trial

On October 5, 1999, United States Border Patrol Agent Bernal Sanchez ("Agent Sanchez") was on duty in the hills near Andrade, California, about two miles from the United States-Mexico border. Agent Sanchez noticed some footprints on the ground and followed the prints to a group of five individuals nearby. Arellano-Rivera was among this group. Arellano-Rivera admitted that he was a citizen of Mexico and had no legal right to be in the United States. Agent Sanchez escorted Arellano-Rivera to the Border Patrol station, where he was advised of his Miranda rights. After waiving those rights, Arellano-Rivera again admitted that he was born in Mexico and was a citizen of that country. Another agent reviewed Arellano-Rivera's immigration records and determined that he previously had been deported from the United States.

The next day, on October 6, 1999, Arellano-Rivera was formally arrested, and a criminal complaint was filed against him alleging that he illegally reentered the United States after having been deported, a violation of 8 U.S.C. S 1326 (West 2001). A probable cause hearing for this case was scheduled for October 21, 1999.

Before the probable cause hearing, the government made the following offer: the government would drop the more serious S 1326 charge if Arellano-Rivera agreed to plead guilty to lesser charges under 8 U.S.C. S 1325 (West 2001). At the October 21, 1999 probable cause hearing, Arellano-Rivera requested and was granted a two-week continuance to consider the government's offer.

On November 4, 1999, the prosecutor, who had been led to believe that Arellano-Rivera was interested in the plea offer, filed a criminal information charging Arellano-Rivera with a misdemeanor count and a felony count of violatingS 1325. Arellano-Rivera waived indictment on these S 1325 charges. On three subsequent occasions, he sought and was granted a continuance. Eventually, on January 5, 2000, Arellano-Rivera stated that he would not plead guilty to the S 1325 charges and requested additional time to consult with his attorney.

That same day, in response to Arellano-Rivera's decision to reject its plea offer, the government obtained a grand jury indictment charging him with a single felony violation of S 1326. Two days later, on January 7, 2000, the government moved to dismiss the case that had been initiated by the S 1325 information. The district court granted the government's motion to dismiss that case.

Arellano-Rivera's counsel then moved to dismiss the S 1326 indictment, claiming that the government violated the Speedy Trial Act ("STA"). See 18 U.S.C. S 3161 (West 2001). The STA requires that an indictment be obtained "within thirty days from the date on which such individual was arrested or served with a summons in connection with such charges." Id. S 3161(b). Arellano-Rivera pointed out thatthe initial criminal complaint charging him with violating S 1326 was filed on

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October 6, 1999, but that the indictment charging him with violating S 1326 was not obtained until January 5, 2000, almost ninety days later. After briefing and oral argument, the district court denied Arellano-Rivera's motion to dismiss the indictment.

B. Trial

On March 14, 2000, the first day of trial, Arellano-Rivera's counsel informed the court that he intended to call witnesses to support a defense of necessity based on his client's medical condition. The government objected and asked the court to preclude Arellano-Rivera from introducing such evidence. Defense counsel proffered that Arellano-Rivera suffers from an advanced case of Acquired Immune Deficiency Syndrome ("AIDS") and from other related diseases, and that he was forced to reenter the United States in order to receive treatment that is unavailable in Mexico. The district court, however, found "that Mr. Arellano's offer of proof is insufficient to support the proffered defense," and precluded him from presenting a necessity defense to the jury.

The jury convicted Arellano-Rivera of violatingS 1326. After he was found guilty, Arellano-Rivera moved for acquittal and, in the alternative, for a new trial. Along with these motions, Arellano-Rivera submitted in excess of 100 pages of materials detailing the seriousness of his medical condition. The district court denied both motions.

C. Sentencing

Before the sentencing hearing, the Probation Department recommended, among other things, that Arellano-Rivera's base offense level be increased sixteen levels because he had been deported previously following a conviction for an aggravated felony. See United States Sentencing Guidelines ("U.S.S.G.") S 2L1.2(b)(1)(A). Arellano-Rivera objected to the sixteen-level increase because the government had not charged in the indictment nor proved at trial that he had been previously convicted of an aggravated felony. The district court rejected his argument. The court determined that United States v. Almendarez-Torres, 523 U.S. 224 (1998), which held that prior convictions need not be proven beyond a reasonable doubt, was an exception to the constitutional rule expressed in Apprendi v. New Jersey, 530 U.S. 466,120 S.Ct. 2348, 2362-63,147 L.Ed.2d 435 (2000), that "any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Accordingly, the court sentenced Arellano-Rivera to sixty months in prison.



A. Speedy Trial Act

Arellano-Rivera argued below and contends again on appeal that the government violated the Speedy Trial Act because (1) it did not obtain an indictment on theS 1326 charge within thirty days of his arrest, and (2) his trial did not commence within seventy days of the filing of the information. The district court rejected both contentions."We review a district court's application of the Speedy Trial Act de novo." United States v. Ramirez-Cortez, 213 F.3d 1149, 1153 (9th Cir. 2000).

1. Delay in Obtaining the Indictment

The Speedy Trial Act requires the filing of an indictment or information within thirty days of a defendant's arrest or service of summons. See 18 U.S.C. S 3161(b); RamirezCortez, 213 F.3d at 1153. "After this time, the government may indict on new charges, or it may abandon the original charges upon which the defendant is held, but it may not indict on the same charge for which the defendant was arrested." United States v. Lopez-Osuna, 242 F.3d 1191 (9th Cir.2000).

However, under the statute, certain periods of delay are excluded from the thirty-day computation. See 18 U.S.C. S 3161(h)(1)-(9). Most important to this

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case,"[a]ny period of delay resulting from other proceedings concerning the defendant" is excludable. Id. S 3161(h)(1).

The criminal complaint charging Arellano-Rivera with violating S 1326 was filed on October 6, 1999. The STA clock started running on that date. See United States v. Candelaria, 704 F.2d 1129, 1131-32 (9th Cir. 1983). Counting ahead thirty days, excluding the day of arrest but including weekends and holidays, see United States v. Pollock , 726 F.2d 1456, 1460 n.6 (9th Cir. 1984), the government was initially required to obtain an indictment charging Arellano-Rivera with violating S 1326 by November 6, 1999. The government did not obtain an indictment charging Arellano-Rivera with violating S 1326 until January 5, 2000, well after the thirtyday window prescribed by the STA. See 18 U.S.C. S 3161(b).

The government acknowledges that it did not obtain an indictment on the S 1326 charge within thirty days of filing the criminal complaint, but contends that a significant portion of the intervening time is excludable under the statute. According to the government, once the delay attributable to "other proceedings" is properly excluded, see id. S 3161(h)(1), the indictment against Arellano-Rivera was obtained within the thirty-day safe harbor. See 18 U.S.C. S 3161(b). We agree.

We recently decided an identical issue in United States v. Lopez-Osuna. 242 F.3d 1191. In that case, the government filed a criminal complaint charging Lopez-Osuna with violating 8 U.S.C. S 1326. Id. at 1191. As part of its "fast-track program," the government offered to drop theS 1326 charge, if Lopez-Osuna agreed to plead guilty to lesser charges under 8 U.S.C. S 1325. Id. Lopez-Osuna initially reacted favorably to the offer, so the prosecutor filed a criminal information charging him with violating S 1325. Id. at 1197. Lopez-Osuna waived indictment on...

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