                                                                              FILED
                            NOT FOR PUBLICATION                               SEP 21 2010

                                                                         MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                         No. 09-50353

              Plaintiff - Appellee,               D.C. No. 8:06-cr-00188-AG-6

  v.
                                                  MEMORANDUM *
LUIS ALBERTO CAZAREZ IBARRA,

              Defendant - Appellant.



                    Appeal from the United States District Court
                       for the Central District of California
                    Andrew J. Guilford, District Judge, Presiding

                            Submitted August 30, 2010 **
                               Pasadena, California

Before: KOZINSKI, Chief Judge, O’SCANNLAIN and GOULD, Circuit Judges.

       Luis Alberto Cazarez Ibarra pled guilty in federal district court to possession

of cocaine with intent to distribute. Thereafter, he stipulated to continue

sentencing for six months. After that delay, the court sentenced him to 168 months


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th 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).
of imprisonment, which reflected an offense level enhancement for firearm

possession. He timely appeals, alleging ineffective assistance of counsel at

sentencing with respect to the enhancement, and alleging violations of the Fifth

and Sixth Amendments with respect to the delay between his guilty plea and

sentencing.

      First, assuming arguendo that sentencing is part of trial for Sixth

Amendment purposes, the delay in Cazarez Ibarra’s sentencing did not violate his

Sixth Amendment right to a speedy trial. Cazarez Ibarra failed to demand to be

sentenced as required for a Sixth Amendment claim. See United States v.

Martinez, 837 F.2d 861, 866–67 (9th Cir. 1988). Furthermore, the delay was not

unreasonably long, Pollard v. United States, 352 U.S. 354, 362 (1957), and it

appears to have been, at least in part, for Cazarez Ibarra’s benefit. See Martinez,

837 F.2d at 867. Indeed, he stipulated to the six month continuance in order to

engage in ongoing discussions with the government. Second, the delay did not

violate Cazarez Ibarra’s Fifth Amendment right to due process. Assuming

arguendo that the Fifth Amendment due process guarantee applies to speedy

sentencing, Cazarez Ibarra was not actually prejudiced by the delay. See United

States v. Barken, 412 F.3d 1131, 1134 (9th Cir. 2005) (citation omitted). Nor did

the delay “offend[] those fundamental conceptions of justice which lie at the base


                                          2
of our civil and political institutions.” Id. (internal quotation marks and citation

omitted). Third, because the delay was to the defendant’s advantage, it was not

unnecessary and did not violate Fed. R. Crim. P. 32(b)(1). Cf. Treakle v. United

States, 327 F.2d 82,83 (9th Cir. 1964) (per curiam).

      Finally, we decline to vacate Cazarez Ibarra’s sentence on the ground that he

received ineffective assistance of counsel. The record is insufficiently developed

at this time to permit determination of the issue. See United States v. Benford, 574

F.3d 1228, 1231 (9th Cir. 2009). And the legal representation was not so

inadequate that it obviously denied Cazarez Ibarra his Sixth Amendment right to

counsel. Id. We generally defer adjudication of ineffective assistance claims until

appeal is taken from the denial of a section 2255 petition. See 28 U.S.C. § 2255;

United States v. Johnson, 820 F.2d 1065, 1074 (9th Cir. 1987).

      AFFIRMED.




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