           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                   Fifth Circuit

                                                                              FILED
                                                                              July 15, 2008
                                        No. 07-40344
                                                                        Charles R. Fulbruge III
                                                                                Clerk
UNITED STATES OF AMERICA

                                                    Plaintiff-Appellant

v.

J. GUADALUPE SAENZ

                                                    Defendant-Appellee


                    Appeal from the United States District Court
                         for the Southern District of Texas
                             USDC No. 7:03-CR-498-10


Before HIGGINBOTHAM, DAVIS, and BARKSDALE, Circuit Judges.
PER CURIAM:*
       J. Guadalupe Saenz (“Saenz”) was convicted after a jury trial, under 21
U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846, for conspiracy to possess with intent
to distribute more than 1,000 kilograms of marijuana. In this appeal, Saenz
raises several constitutional, statutory, and procedural challenges to the
proceedings below. Finding his challenges without merit, we affirm.
                                               I.
       On June 10, 2003, Saenz was indicted and a warrant was issued for his


       *
        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 R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                 No. 07-40344

arrest. John Garza, of the Houston Police Department, and Special Agent John
Schwartz, of the Drug Enforcement Administration in Houston, went by Saenz’s
address on several occasions to try to locate and arrest Saenz. In late July or
early August of that year, however, a man who identified himself as associated
with Saenz contacted Darby Hodges, a case agent, and told him that Saenz was
in Mexico. Apprehension authority was then delegated to the United States
Marshal Service. On January 2005, a United States Marshal followed up on a
lead and drove by Saenz’s house. That next month, he returned to the house,
and was told by Saenz’s daughter that Saenz was at work, but that she did not
know where he worked. He left his phone number, and later received a call from
Saenz’s son who said Saenz was attending to a sick relative in Mexico. Deputy
United States Marshals continued to surveil Saenz’s house. Approximately two
years after his indictment Saenz was arrested and detained pending trial.
      Saenz filed pretrial motions soon after his June 13, 2005 initial
appearance. He also filed a series of motions for continuances, all of which were
granted by the district court, on the record and in writing, pursuant to relevant
statutory justifications. Saenz’s pretrial motions were pending until October 30,
2006, when the district court denied the motions and scheduled the final pretrial
conference for November 6, 2006 and jury selection for November 7, 2006.
Before the final pretrial conference Saenz filed a motion to dismiss his
indictment for violating the Speedy Trial Act, 18 U.S.C. § 3161. On November
30, 2006, the district court denied this motion. On December 1, 2006, both sides
appeared and announced themselves ready to proceed to trial. Jury selection
occurred on January 22, 2007.
      At trial, the government introduced a photospread, created on April 16,
2003 and used during pretrial identification procedures. The photospread

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contained six photographs on a single sheet of paper. The officer who created
the photospread created it in the same manner she had prepared many other
photospreads. That is, after receiving Saenz’s name, she looked up his driver’s
license photograph and determined that he was a male of Hispanic origin. She
then selected five photographs of men resembling the photograph of Saenz from
the driver’s license photograph database. She then placed the six photographs
on a single piece of paper, at random. In this case, Saenz’s photograph was
placed in the first, upper-left position on the photospread.      At trial, four
witnesses identified Saenz, and three of those four provided similar descriptions
of him, that he had had a broken arm and a special type of car starter in his
vehicle.
      After jury trial, Saenz was convicted of conspiracy to possess with intent
to distribute more than 1,000 kilograms of marijuana. Saenz was sentenced to
a term of 240 months imprisonment, to be followed by ten years supervised
release. The district court also imposed the mandatory special assessment of one
hundred dollars.
                                       II.
      We review the constitutional standards applied by the district court de
novo. United States v. Shaw, 920 F.2d 1225, 1228 (5th Cir. 1991). Additionally,
we review preserved constitutional challenges to a federal statute de novo.
United States v. Bredimus, 352 F.3d 200, 203 (5th Cir. 2003) (citing United
States v. Delgado-Nunez, 295 F.3d 494, 496 (5th Cir. 2002)).
      District court rulings on the admissibility of evidence are generally
reviewed for abuse of discretion. United States v. Rogers, 126 F.3d 655, 657 (5th
Cir. 1997). When reviewing a district court ruling from a pretrial suppression


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hearing, this Court “give[s] credence to the credibility choices and findings of fact
of the district court unless clearly erroneous.” United States v. Shaw, 894 F.2d
689, 691 (5th Cir. 1990) (quoting United States v. Raymer, 876 F.2d 383, 386 (5th
Cir. 1989)) (internal quotation marks omitted).
      We review a district court’s findings of fact regarding Sixth Amendment
claims of post-indictment delay for clear error and its legal conclusions de novo.
United States v. Bergfeld, 280 F.3d 486, 488 (5th Cir. 2002) (citing Robinson v.
Whitley, 2 F.3d 562, 568 (5th Cir. 1993)); United States v. Shaw, 920 F.2d 1225,
1228 (5th Cir. 1991) (citation omitted). We review the district court’s factual
findings under the Speedy Trial Act for clear error and its legal conclusions de
novo. United States v. Bieganowski, 313 F.3d 264, 281 (5th Cir. 2002) (citation
omitted).
                                        III.
      Saenz argues, first, that the district court committed clear error when it
denied his motion to dismiss his indictment due to an alleged violation of his
Sixth Amendment right to a speedy trial. The Supreme Court has established
four factors to analyze a Sixth Amendment speedy trial claim: (1) the length of
the delay; (2) the reason for the delay; (3) the defendant’s diligence in asserting
his Sixth Amendment right; and (4) prejudice to the defendant resulting from
the delay. Doggett v. United States, 505 U.S. 647, 651 (1992); see also Bergfeld,
280 F.3d at 488 (citation omitted). The threshold inquiry is whether the delay
was long enough to trigger a “speedy trial” analysis. Bergfeld, 280 F.3d at 488
(citing Doggett, 505 U.S. at 651–52). A post-accusation delay of longer than one
year is sufficient. Id. (citing Doggett, 505 U.S. at 652 n.1). Next, the length of
the delay, the reason for the delay, and the defendant’s diligence in asserting his


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rights are all weighed against the prejudice to the defendant. Id. (citing Doggett,
505 U.S. at 656–57). If the first three factors weigh heavily in favor of the
Defendant, prejudice may be presumed and the defendant need not show actual
prejudice. Id.
      Saenz argues that for two years after the indictment the government did
virtually nothing to try to arrest him. The district court recognized that two
years is a long enough delay to trigger an analysis of whether there is a Sixth
Amendment speedy trial violation. With regards to the reason for the delay, the
district court found that although the government did not devote as many
resources as possible to apprehending him, some of the fault for this delay can
be attributed to Saenz’s actions. Considering that there was no record that
Saenz asserted his right to a speedy trial, and Saenz presented no claim of
actual prejudice, the district court rejected Saenz’s motion. Saenz argues that
there was presumptive prejudice and the government did not carry its burden
of proving a lack of prejudice, and thus the district court erred as a matter of
law. We disagree. To create a presumption of prejudice, the length of the delay,
the reason for the delay, and the defendant’s diligence in asserting his right
must collectively weigh heavily in favor of the defendant. Upon our review of the
record, we are satisfied that the district court gave appropriate weight to the
three factors and did not err in finding they did not create a presumption of
prejudice. We thus conclude the district court did not err in rejecting Saenz’s
Sixth Amendment speedy-trial claim.
      Saenz next challenges the constitutionality of the federal statutes under
which he was convicted and sentenced because his sentence was enhanced based
on a determination by the court that he had a prior conviction. He complains
that this finding, made by a judge rather than a jury and not alleged in the

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indictment, violates Apprendi v. New Jersey, 530 U.S. 466 (2000).            This
argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235,
247 (1998).
      Saenz also argues the federal drug trafficking statute is facially
unconstitutional under Apprendi. This argument is foreclosed by United States
v. Slaughter, 238 F.3d 580, 581–82 (5th Cir. 2000), where this Court considered
and rejected Saenz’s argument.
      Saenz argues, next, that in-court identification of him by several witnesses
was the direct result of a tainted photospread. The Due Process Clause forbids
the admission of unreliable identification testimony. Manson v. Brathwaite, 432
U.S. 98, 99, 114 (1977). Admissibility of identification evidence is determined
by (1) whether the identification procedure was “unduly suggestive” and (2)
whether the procedure posed “a very substantial likelihood of irreparable
misidentification.” Rogers, 126 F.3d at 658 (citation and internal quotation
marks omitted). Photo arrays may be suggestive if the suspect is the only person
closely resembling the description, or if the subjects of the photographs are
“grossly dissimilar in appearance to the suspect.” United States v. Wade, 388
U.S. 218, 233 (1967).
      Saenz argues that the photospread was unduly suggestive because his
picture was substantially different from the five others provided and because he
was placed in the first, upper-left position. The district court determined that
the photographs were placed in the photospread at random, were all taken from
similar driver’s license records, were viewed at the same time on one piece of
paper, and appeared to be of very similar Hispanic males. As such, the district
court concluded that there was insufficient evidence to conclude that the


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photospread was unduly suggestive. Reviewing the district court’s findings of
fact for clear error, and the decision to admit evidence for abuse of discretion, we
are satisfied the district court did not err when it denied Saenz’s motion to
suppress the identification.
      Saenz argues, finally, that the district court erred in denying his motion
to dismiss his indictment under the Speedy Trial Act. The Speedy Trial Act,
“which is designed to protect a criminal defendant’s constitutional right to a
speedy trial and to serve the public interest in bringing prompt criminal
proceedings, requires that a defendant’s trial commence within seventy days
from his indictment or initial appearance, whichever is later.” United States v
Stevens, 489 F.3d 647, 652 (5th Cir. 2007) (citing, inter alia, 18 U.S.C. §
3161(c)(1)). Certain delays are excluded in calculating the seventy day period,
including delays “resulting from any pretrial motion, from the filing of the
motion through the conclusion of the hearing on, or other prompt disposition of,
such motion.” 18 U.S.C. § 3161(h)(1)(F); see also Henderson v. United States, 476
U.S. 321, 329–30 (1986); United States v. Green, 508 F.3d 195, 200 (5th Cir.
2007). “If more than seventy non-excludable days pass between the indictment
and the trial, the indictment shall be dismissed on motion of the defendant.”
United States v. Johnson, 29 F.3d 940, 942 (5th Cir. 1994) (internal quotation
omitted).
      Saenz argues his indictment should have been dismissed because his trial
did not commence within seventy days of his initial appearance, on June 13,
2005. The district court concluded that there were only nineteen non-excludable
days, well short of the seventy day limit. Reviewing the district court’s findings
of fact for clear error and its applications of law de novo, we are satisfied that the


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district court did not err. The pretrial motions, filed by Saenz and granted
pursuant to statutory justifications, served to toll the clock. The district court,
thus, correctly denied Saenz’s motion to dismiss his indictment under the Speedy
Trial Act.
                                       IV.
      For the foregoing reasons, Saenz’s conviction is AFFIRMED.




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