                                                                           FILED
                           NOT FOR PUBLICATION                              JUN 10 2014

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 13-10374

              Plaintiff - Appellee,              D.C. No. 5:10-cr-00828-DLJ-1

  v.
                                                 MEMORANDUM*
MARIA GUADALUPE MARTINEZ-
ALCALA,

              Defendant - Appellant.


                    Appeal from the United States District Court
                      for the Northern District of California
                 D. Lowell Jensen, Senior District Judge, Presiding

                             Submitted May 16, 2014**
                              San Francisco, California

Before: SILVERMAN and GOULD, Circuit Judges, and LEMELLE, District
Judge.***




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
        ***
             The Honorable Ivan L.R. Lemelle, District Judge for the U.S. District
Court for the Eastern District of Louisiana, sitting by designation.
      Appellant Maria Guadalupe Martinez-Alcala appeals her conviction for

illegal reentry after deportation in violation of 8 U.S.C. § 1326, contending that the

district court erred in denying her motion to dismiss her indictment for violating

her Sixth Amendment speedy trial right. We have jurisdiction under 28 U.S.C. §

1291 and we affirm.

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

claim de novo and it’s factual findings for clear error. United States v. Mendoza,

530 F.3d 758, 762 (9th Cir. 2008). We decide speedy trial challenges under a four-

factor test set forth in Barker v. Wingo, 407 U.S. 514 (1972). Those four factors

are: “whether delay before trial was uncommonly long, whether the government or

the criminal defendant is more to blame for that delay, whether, in due course, the

defendant asserted his right to a speedy trial, and whether he suffered prejudice as

the delay's result.” Doggett v. United States, 505 U.S. 647, 651 (1992) (citing

Barker, 407 U.S. at 530). These factors are “related . . . and must be considered

together with such other circumstances as may be relevant” and comprise a

balancing test that “necessarily compels courts to approach speedy trial cases on an

ad hoc basis.” Barker, 407 U.S. at 530, 533.

      The delay factor presents a “double enquiry.” Doggett, 505 U.S. at 651.

First, a defendant must show that the delay “stretches beyond the bare minimum


                                          2
needed to trigger judicial examination of the claim.” Id. at 651-52 (citing Barker,

407 U.S. at 533-34). Delays “approaching one year” are a common threshold.

United States v. Gregory, 322 F.3d 1157, 1161-62 (9th Cir. 2003). Where the

government is at fault, the intensity of that presumption is also determined in light

of the government’s reason for causing delay. See Doggett, 505 U.S. at 656. Thus,

deliberate intent to delay a trial in order to impair the defense is weighted more

heavily against the government than delay resulting from negligence. Id. at 656-57

(citing Barker, 407 U.S. at 531). Where the delay is caused by the government’s

negligence, “toleration of such negligence varies inversely with its protractedness.”

Id. at 657. Accordingly, whether actual prejudice must be shown for delays caused

by the government’s negligence depends on the length of the delay and the facts of

the case. Generally, where the delay is “great” and attributable to government

negligence, the presumption calcifies and no showing of actual prejudice is

required. See United States v. Shell, 974 F.2d 1035, 1036 (9th Cir. 1992) (holding

that a five-year delay caused by government negligence was long enough to

eliminate the actual prejudice requirement). Where the delay is not “great,” on the

other hand, courts may require a showing of prejudice, even where each factor

weighs in favor of the defendant. See United States v. Beamon, 992 F.2d 1009,

1014 (9th Cir. 1993) (holding that 17- and 20-month delays are not long enough to


                                           3
relieve a defendant of the burden of showing actual prejudice); see also Gregory,

322 F.3d at 1165 (holding that a 22-month delay did not excuse the defendant from

demonstrating actual prejudice).

      Martinez-Alcala stipulated to the essential factual elements that led to her

conviction. The resulting federal sentence of 30 months imprisonment runs

concurrent to her eight-year state court prison sentence for carjacking. Further,

Martinez-Alcala failed to show either actual prejudice or that the government

delayed prosecution in bad faith. The record supports the district court’s

conclusion that the government negligently caused the delay without bad faith and

that Martinez-Alcala did not suffer actual prejudice as a result of the delay. Under

the foregoing circumstances, the two-year delay in Martinez-Alcala’s prosecution

is not enough to relieve her of the requirement that she show actual prejudice. Her

Sixth Amendment right to a speedy trial was not violated.

      AFFIRMED.




                                          4
