                                                                              United States Court of Appeals
                                                                                       Fifth Circuit
                                                                                    F I L E D
                          UNITED STATES COURT OF APPEALS
                               For the Fifth Circuit                                August 21, 2007

                                                                                Charles R. Fulbruge III
                                                                                        Clerk
                                       No. 06-20376




                             UNITED STATES OF AMERICA,

                                                                      Plaintiff-Appellee

                                            VERSUS


                                        JUAN OLAYA,

                                                                    Defendant-Appellant




  Appeal from the United States District Court For the Southern
               District of Texas, Houston Division
                           4-91-CR-58-2



Before HIGGINBOTHAM, DAVIS and BARKSDALE, Circuit Judges.

PER CURIAM:*

       In this direct criminal appeal, Juan Olaya challenges his

conviction and sentence for conspiracy and possession of cocaine.

We AFFIRM.

                                               I.

       On April 17, 1991, Juan Olaya (“Olaya”) was charged along with


       *
        Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR. R.
47.5.4.
four co-defendants in a two-count indictment with conspiring to

possess with intent to distribute in excess of five kilograms of

cocaine and possessing with intent to distribute in excess of five

kilograms of cocaine.      A warrant for Olaya’s arrest was issued on

the date the indictment was returned.            However, Olaya was not

arrested until more than thirteen years later, on November 24,

2004.

     On March 31, 2005, Olaya filed a motion to dismiss the

indictment against him, arguing that his right to a speedy trial

under the Sixth Amendment of the United States Constitution had

been violated by the delay in bringing him to trial.          The district

court acknowledged the lengthy delay between Olaya’s indictment and

trial, but concluded that because the facts did not support an

intentional   delay   or    gross   negligence    on   the   part    of   the

Government, and because Olaya had not put forth any evidence that

the delay had prejudiced his defense, the motion would be denied:

          THE COURT:   The [search] efforts look like they
     were reasonable, and unless there is some particular harm
     that you can point to that could have been otherwise
     corrected, I will deny the motion to dismiss. Is there
     any, other than just the passage of time, any witnesses
     who have died? Nobody you know of?

          DEFENSE COUNSEL: No.      Just one of              the    co-
     conspirators, but he would not be helpful.

     At trial, the Government described Olaya’s participation in a

large scale cocaine drug trafficking organization. Officer Raymond

Montalvo, a police officer with the Houston Police Department who



                                     2
had conducted surveillance as part of the investigation, testified

that he saw Olaya at one of the locations where cocaine was found,

a house at 3462 Sand Brook, on the date the drugs were recovered.

In addition to cocaine, agents found two pistols in the master

bedroom at the Sand Brook property.

     At the conclusion of the trial, the jury found Olaya guilty of

both offenses charged in the indictment.

     The Presentence Investigation Report (“PSR”) assigned Olaya a

base offense level of 36 because his offense involved 124.96

kilograms of cocaine.        The PSR recommended that Olaya’s offense

level be increased as follows: (1) two levels, pursuant to United

States Sentencing Guidelines Manual (“USSG”) § 2D1.1(b)(1), because

two loaded weapons were possessed during the offense; (2) two

levels, pursuant to USSG § 3B1.1(c), because Olaya was an organizer

or leader of criminal activity; and (3) two levels, pursuant to

USSG § 3C1.1, for obstruction of justice based on Olaya’s efforts

to avoid arrest.    Olaya’s total offense level of 42, combined with

his criminal history category of I, yielded a sentencing guideline

range of 360 months to life imprisonment.                 The district court,

after sustaining Olaya’s objection to the obstruction of justice

enhancement, sentenced Olaya to 360 months imprisonment on each

count of     conviction,     to   run    concurrently,     and   five   years    of

supervised    release   on    each      count   of   conviction,   also   to    run

concurrently.



                                          3
     On appeal, Olaya argues that the district court erred in (1)

denying his speedy trial motion; (2) applying the two level weapon

enhancement;        and    (3)    applying       the    two    level     leader/organizer

enhancement.

                                               II.

                                               A.

     Olaya first argues that the district court erred by denying

his motion to dismiss the indictment based on a violation of his

Sixth    Amendment        right     to    a    speedy     trial.         He      contends   the

Government failed to present any evidence justifying the delay

between the filing of his indictment and his arrest.

     The standard of review applicable to a speedy trial claim is

unsettled in this circuit.                    While, we review the trial court’s

findings of fact made for analysis of the speedy trial right for

clear error,1 we have recently recognized that our cases have not

specified the standard applicable to the district court’s balancing

of the various factors.2                 Both the plaintiff and the Government

assert that because the district court’s balancing is akin to

conclusions of law or rulings on mixed questions of law and fact,

it should be reviewed de novo.                  This case does not require us to

resolve this question.              We will review de novo, but if we were to

review for clear error, we would obviously reach the same result:


     1
        United States v. Serna-Villarereal, 352 F.3d 225, 230 (5th Cir. 2003).
     2
        See United States v. Frye, 372 F.3d 729, 735 (5th Cir. 2004).

                                                4
Olaya's Sixth Amendment speedy trial right was not violated.

     In evaluating a defendant’s claim that his right to a speedy

trial has been denied, this court applies a four-factor balancing

test derived from the Supreme Court’s opinion in Barker v. Wingo.3

We must consider: (1) the length of the delay; (2) the reason for

the delay; (3) whether the defendant asserted his right to a speedy

trial; and (4) whether the defendant was prejudiced by the delay.4

The first factor acts as a gatekeeper, triggering a full Barker

analysis if the delay is over one year, and therefore considered

“presumptively       prejudicial.”5               Once   that    threshold      has     been

crossed, the length of the delay is considered together with

factors (2)       and    (3)    to   determine       whether      the    presumption      of

prejudice will be sustained.                 If the first three factors weigh

heavily for the defendant, or heavily against the Government, then

prejudice will be presumed.                The Government, however, can avoid

dismissal with evidence showing that the presumption is extenuated,

as   by     the   defendant’s         acquiescence         in     the     delay,   or    by

demonstrating that the defendant suffered no actual prejudice.6

1.   The Length of the Delay

     In this case, the threshold prong weighs heavily in favor of


     3
      407 U.S. 514, 530 (1972).
     4
      Id.
     5
      Serna-Villarreal, 352 F.3d at 230.
     6
      Id. at 231 (citing Doggett v. United States, 505 U.S. 647, 658 (1992)).

                                              5
defendant and against the Government.   The 13 year delay triggers

a full Barker analysis.

2.   The Reason for the Delay

     Evidence is sparse on the reason for the delay.   Olaya did not

allege bad faith and suggested only negligence on the part of the

Government.

     The Government made some effort to locate defendant. In 1991,

when Olaya’s indictment was issued, Dan Egeland, a special agent

for the United States Bureau of Immigration and Customs Enforcement

testified that he tried to locate Olaya.   Later, in 2001, a Deputy

Marshall went to Olaya’s wife’s residence in Miami in an attempt to

locate him.   Olaya was ultimately arrested on November 24, 2004 at

a property owned by his wife in Houston, not far from the scene of

his original offense.   The United States Marshall who found Olaya,

Arthur Fernandez, explained that he had used a public database to

determine what properties Olaya’s wife owned in Houston.

     The record also supports the view that Olaya took steps to

avoid his capture. Instead of renewing his Texas driver’s license,

he obtained a Florida driver’s license in 1997 under the name

Fernando Vargas.    In addition to the altered name, the license

reported a false birth date.    This supports the district court’s

finding that Olaya knew of the pending charges and took steps to




                                 6
evade capture.7

       As a result of the lengthy delay between indictment and arrest

and substantial gaps in the Government’s active efforts to locate

Olaya, the second Barker factor weighs against the Government. But

because of Olaya’s efforts to avoid detection, this factor does not

weigh heavily against the Government.

3.     Defendant’s Assertion of Speedy Trial Rights

       Olaya asserted his Speedy Trial rights within 3 months of his

arrest      which      is    ordinarily        considered         timely.          However,       the

evidence that Olaya sought to avoid capture, implying that he was

aware of his indictment long before his arrest, augers in favor of

the Government.8            We therefore consider this factor neutral.

4.     Prejudice

       Olaya fails to allege that he suffered any harm or actual

prejudice from the delay and instead relies on what he perceives as

a strong case for the presumption of prejudice.                               On the balance,



       7
         The district court did not have the benefit of the trial evidence, including testimony on the
previous attempts at arrest and the false document, when it made its ruling on the pretrial motion
to dismiss. However, the Supreme Court has recognized that facts developed at trial are properly
considered by an appellate court in reviewing a district court’s pre-trial speedy trial ruling. See
United States v. McDonald, 435 U.S. 850, 858 (1978) (discussing prejudice prong of Barker
analysis and noting that “[t]he resolution of a speedy trial claim necessitates a careful assessment
of the particular facts of the case. . . . [M]ost speedy trial claims, therefore, are best considered
only after the relevant facts have been developed at trial.”). Accordingly, we consider trial
evidence in assessing Olaya’s speedy trial claim in this case.
       8
        See Doggett, 505 U.S. at 653 (“Were [it] true [that the defendant knew of his indictment
years before his arrest], Barker 's third factor, concerning invocation of the right to a speedy trial,
would be weighed heavily against him.”).

                                                   7
the Barker factors weigh against the Government but not heavily

against the Government.                  Under such circumstances, prejudice will

either not be presumed or at most the presumption will be a weak

one.9         Olaya produced no evidence that his defense was prejudiced

and he therefore failed to demonstrate prejudice. Further, even if

we agree with Olaya’s argument that the Barker factors weigh

against          the    Government        to    an       extent   which     would      justify   a

presumption of prejudice, his counsel’s frank concession in open

court effectively established that Olaya suffered no prejudice from

the delay.10           Olaya’s speedy trial claim fails.

                                                   B.

        Olaya next argues that the district court erred by enhancing

his offense level pursuant to USSG § 2D1.1(b)(1) based on its

finding that he possessed two dangerous weapons during his offense.

Olaya contends that the Government failed to present any reliable

evidence to support the enhancement.                        In his objections to the PSR,



        9
       See United States v. Hernandez, 457 F.3d 416 (5th Cir. 2006) (“Prejudice cannot be
presumed [where] the first three Barker factors do not cut strongly in [defendant]’s favor.”).
        10
             Defense counsel could point to no particular harm resulting from the delay:

        THE COURT:             The [search] efforts look like they were reasonable, and
        unless there is some particular harm that you can point to that could have been
        otherwise corrected, I will deny the motion to dismiss. Is there any, other than just
        the passage of time, any witnesses who have died? Nobody you know of?

        DEFENSE COUNSEL:                 No. Just one of the co-conspirators, but he would
        not be helpful.


                                                     8
Olaya denied having lived at, or exercising control over, the 3462

Sand Brook residence where the weapons were found.

       A district court’s decision to enhance a defendant’s sentence

under § 2D1.1(b)(1) is a factual determination that this court

reviews for clear error.11

       The       Sentencing        Guidelines         direct    a    sentencing         court    to

increase by two levels the base offense level of a defendant who

possessed          a   dangerous       weapon     during       the   manufacture,        import,

export, trafficking, or possession of drugs.12                           Section 2D1.1(b)(1)

should be applied “if the weapon was present, unless it is clearly

improbable that the weapon was connected with the offense.”13                               “The

Government has the burden of proof under § 2D1.1 of showing by a

preponderance of the evidence that a temporal and spatial relation

existed between the weapon, the drug trafficking activity, and the

defendant.”14           At sentencing, a district court may consider “any

relevant evidence that has sufficient indicia of reliability to

support its probable accuracy.”15                     For instance, a PSR based on the

results of a police investigation is sufficiently reliable to be



       11
            United States v. Dixon, 132 F.3d 192, 201 (5th Cir. 1997).
       12
            USSG § 2D1.1(b)(1); Dixon, 132 F.3d at 201.
       13
            USSG § 2D1.1, cmt. n.3; United States v. Vasquez, 161 F.3d 909, 912 (5th Cir. 1998).
       14
            Vasquez, 161 F.3d at 912 (internal quotation marks and citation omitted).
       15
          United States v. Buchanan, 70 F.3d 818, 828 (5th Cir. 1995) (internal quotations and
citation omitted).

                                                  9
considered as evidence for sentencing purposes.16                            “If information

is presented to the sentencing judge with which the defendant would

take issue, the defendant bears the burden of demonstrating that

the information cannot be relied upon because it is materially

untrue, inaccurate or unreliable.”17

       According to the PSR, Olaya and his co-defendants were using

a number of residences and vehicles to store, transport, and sell

drugs including a residence at 3462 Sand Brook in which the police

found 38 kilograms of cocaine and two pistols.                            One of Olaya’s co-

defendants told police that the Sand Brook resident was rented by

Olaya and that he “sort of” lived there.                         Although Olaya contends

that the PSR was not reliable because of its use of statements made

by his co-defendants, this court has previously determined that

such statements, if unrebutted, can be considered.18                                  Olaya’s

objections to the PSR were made in the form of unsworn assertions

and    thus        did    not     suffice      as      competent        rebuttal   evidence.19

Moreover, the district court’s factual findings as set forth in the

PSR are         supported       by    testimony        elicited     at    trial.     Officers

testified that they seized cocaine and two weapons from the Sand



       16
            United States v. Vela, 927 F.2d 197, 201 (5th Cir. 1991).
       17
            United States v. Angulo, 927 F.2d 202, 205 (5th Cir. 1991).
       18
        United States v. Peters, 283 F.3d 300, 315 (5th Cir. 2002); United States v. Vaquero,
997 F.2d 78, 84 (5th Cir. 1993).
       19
            See United States v. Lghodaro, 967 F.2d 1028, 1030 (5th Cir. 1992).

                                                  10
Brook residence along with two letters addressed to Olaya and drug

paraphernalia from the garage.                   In addition, one officer testified

that he saw Olaya exiting the Sand Brook residence on the day drugs

were recovered from the residence.                       Together with the PSR, this

evidence was sufficient for the district court to find by a

preponderance of the evidence that cocaine involved in Olaya’s

offense was being stored at the Sand Brook residence, that the

weapons found in that location were related to the drug offense,

and that Olaya had control over the residence.20 The district court

did not err in enhancing Olaya’s sentence under § 2D1.1(b)(1).

                                                 C.

       Olaya next argues that the district court erred by enhancing

his offense level pursuant to USSG § 3B1.1(c) based on a finding

that he was an organizer or leader of criminal activity.

       Where as here, a defendant does not challenge the application

of an enhancement in the district court, the decision will be

reviewed for plain error only.21

       Olaya cannot show plain error.                     At sentencing, the district

court found that Olaya had “used [his] brother in law, and [his]

dad and a bunch of other people.”                     The district court adopted the



       20
           See United States v. Juluke, 426 F.3d 323, 328 (5th Cir. 2005) (where loaded weapons
were found in the same home as cash and on the same property that court found the defendant
had stored heroine, it was not “clearly improbable that the weapon was ocnnected with the
offense.”).
       21
            See United States v. Rodriguez, 15 F.3d 408, 414-415 (5th Cir. 1994).

                                                 11
findings of the PSR, which set forth facts showing that Olaya

coordinated the drug transactions and gave instructions to his co-

defendants.          Those statements were corroborated by testimony at

trial.      Moreover, questions of fact that could have been resolved

by the district court at sentencing may never constitute plain

error.22

                                                D.

     Finally, Olaya argues that he was sentenced in violation of

his Sixth Amendment rights under the Confrontation Clause, as

interpreted by the Supreme Court in Crawford v. Washington23 because

his sentence enhancements under § 2D.1.1(b)(1) and § 3B1.1(c) were

based on the post-arrest hearsay statements of his co-defendants.

As Olaya did not raise this issue in the district court, it is

reviewed for plain error only.24

     In Crawford, the Supreme Court held that the admission of

testimonial statements by a witness who is not present at a

defendant’s criminal trial violates the Confrontation Clause unless

the witness is unavailable and the defendant has had a prior

opportunity for cross-examination.25                    However, Crawford involved a

defendant’s Confrontation Clause right during his criminal trial.


     22
          United States v. Lopez, 923 F.2d 47, 50 (5th Cir. 1991).
     23
          541 U.S. 36, 52-54 (2004).
     24
          See Rodriguez, 15 F.3d at 414-15.
     25
          Crawford, 541 U.S. at 68-69.

                                                12
As we have previously noted, there is no Crawford violation when

hearsay testimony is used at sentencing.26

                                             III.

     For the foregoing reasons, we AFFIRM the judgment of the

district court.




     26
          United States v. Beydoun, 469 F.3d 102, 108 (5th Cir. 2006).

                                               13
