                                                                           FILED
                           NOT FOR PUBLICATION
                                                                            JAN 18 2017
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No.   15-50492

              Plaintiff-Appellee,                D.C. No. 2:06-cr-00876-PA-1

 v.
                                                 MEMORANDUM*
ARNULFO ARAIZA,

              Defendant-Appellant.


                    Appeal from the United States District Court
                       for the Central District of California
                     Percy Anderson, District Judge, Presiding

                           Submitted January 12, 2017**
                              Pasadena, California

Before: TASHIMA, TALLMAN, and FRIEDLAND, Circuit Judges.

      Arnulfo Araiza appeals the district court’s order denying his motion to

dismiss his indictment charging violation of 18 U.S.C. § 1542 based on post-

indictment delay under the Sixth Amendment. Araiza also appeals the district


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth 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).
court’s supervised release sentence and special conditions. We have jurisdiction

under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).

      We review the district court’s decision on a Sixth Amendment speedy trial

claim de novo and its factual determinations for clear error. United States v.

Gregory, 322 F.3d 1157, 1160 (9th Cir. 2003). To determine whether a

defendant’s Sixth Amendment speedy trial right has been violated, courts balance

the four factors described in Barker v. Wingo, 407 U.S. 514, 530 (1972), including

the “[l]ength of delay, the reason for the delay, the defendant’s assertion of his

right, and prejudice to the defendant.” Because we conclude the district court

properly weighed these factors, we affirm.

      First, the district court properly found the eight-and-a-half year delay

between Araiza’s indictment on November 29, 2006, and his arrest on April 29,

2015, was presumptively prejudicial and “suffice[d] to trigger the speedy trial

enquiry.” Doggett v. United States, 505 U.S. 647, 652 (1992).

      Second, the district court did not err when it found that Araiza caused the

delay. The government has “some obligation” to bring a defendant to trial, United

States v. Sandoval, 990 F.2d 481, 485 (9th Cir. 1993), and must pursue a defendant

with “reasonable diligence,” Doggett, 505 U.S. at 656. But the government is not

required to “make heroic efforts to apprehend a defendant who is purposefully


                                           2
avoiding apprehension.” Sandoval, 990 F.2d at 485 (quoting Rayborn v. Scully,

858 F.2d 84, 90 (2d Cir. 1988)).

      Here, the district court properly found that Araiza was avoiding

apprehension. Agents attempted to serve the arrest warrant at Araiza’s last known

address on December 10, 2006, but were told that Araiza had moved to Mexico.

At this time, the agents informed Araiza’s sister of his outstanding arrest warrant.

The district court properly relied on these facts, and the fact that Araiza failed to

update his driver’s license and frequently changed residences between 2008 and

2015, to find that Araiza was “living under the radar” and seeking to avoid

apprehension.1 The district court also properly found that the government was

reasonably diligent in its pursuit based on (1) the government’s 2006 press release

identifying Araiza, his charged offense, and his fugitive status; (2) the

government’s entry of Araiza’s arrest warrant into the National Crime Information

Center database; (3) the government’s periodic checks on commercial databases

and with the California Department of Motor Vehicles database; (4) the


      1
        Araiza argues that any knowledge he had as to the government’s pursuit
was “superceded” when Customs and Border Patrol released him from a brief
detention at a San Diego port of entry, allowing him to voluntarily return to
Mexico on February 26, 2008. Araiza cites no case law to support his argument, or
to suggest that the district court was prohibited from drawing an adverse inference
from Araiza’s post-encounter frequent changes of residence and failure to update
his information.
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government’s aforementioned attempt to serve the arrest warrant; and (5) the fact

that the government informed Araiza’s sister of his arrest warrant. Ultimately, the

government was only able to find Araiza because his April 2015 DUI arrest

appeared in a warrant validation conducted later that same month. Because this is

not a case where the government “ma[de] no serious effort to find” Araiza, United

States v. Mendoza, 530 F.3d 758, 763 (9th Cir. 2008), the district court did not

clearly err when it found that Araiza caused the delay.

      Third, the district court properly weighed the timely invocation factor

against Araiza because he caused the delay. See Doggett, 505 U.S. at 653.

      Fourth, the district court properly found that Araiza was not prejudiced by

the delay. Because the government was reasonably diligent in its pursuit, Araiza

does not benefit from the presumption of prejudice that would result from a finding

of government negligence. See Mendoza, 530 F.3d at 763 (citing Doggett, 505

U.S. at 657). Araiza has not identified evidence of actual prejudice. Because

“[g]eneralized assertions of the loss of memory, witnesses, or evidence are

insufficient to establish actual prejudice[,]” United States v. Manning, 56 F.3d

1188, 1194 (9th Cir. 1995), the district court properly considered this factor when

it rejected Araiza’s motion to dismiss based on post-indictment delay.




                                          4
      Araiza also appeals the district court’s supervised release sentence and

special conditions. He first argues the district court’s imposition of supervised

release was substantively unreasonable under 18 U.S.C. § 3553(a)(2). Because

Araiza did not object to supervised release below, we review for plain error. See

United States v. Garcia, 323 F.3d 1161, 1165 (9th Cir.2003). We find none.

Although a “court ordinarily should not impose a term of supervised release in a

case in which . . . the defendant is a deportable alien who likely will be deported

after imprisonment,” U.S.S.G. § 5D1.1(c), it may do so where supervised release

provides an “added measure of deterrence and protection based on the facts and

circumstances of a particular case,” id. cmt. n.5. Here, the district court considered

Araiza’s particular characteristics, including his familial ties in the United States.

It also considered the circumstances of the underlying offense, including the fact

that it involved unlawful attempts to obtain a United States passport. Even

assuming the district court erred by failing to distinguish its reasons for imposing

supervised release from its reasons for imposing the custodial sentence, Araiza

fails to demonstrate how such error affects his substantial rights. See United States

v. Olano, 507 U.S. 725, 732-35 (1993) (stating that under plain error review the

defendant bears the burden of proving that error affected his substantial rights).




                                           5
      Finally, Araiza appeals the imposition of drug testing and treatment

conditions because he only has a history of alcohol abuse, and not drug abuse. We

review these conditions for abuse of discretion because Araiza objected during

sentencing, see United States v. Daniels, 541 F.3d 915, 924 (9th Cir. 2008), but

we find no such abuse. “Submission to drug testing is a mandatory and not a

discretionary condition of supervised release[,]” United States v. Carter, 159 F.3d

397, 399 (9th Cir. 1998) (citing 18 U.S.C. § 3583(d)), and the treatment condition

addresses both alcohol and drug abuse.

      AFFIRMED.




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