                                                          United States Court of Appeals
                                                                   Fifth Circuit
                                                                  F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                       July 19, 2006
                       ______________________
                                                               Charles R. Fulbruge III
                            No. 05-50191                               Clerk
                       ______________________

UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

     v.

MARIA HERNANDEZ; RUTILIO HERNANDEZ, also known as Rudy,

                                          Defendants - Appellants.
                       ______________________

            Appeals from the United States District Court
                  for the Western District of Texas
                        _____________________

Before: DeMOSS, BENAVIDES, and PRADO, Circuit Judges.

BENAVIDES, Circuit Judge:

     Maria and Rutilio Hernandez (“Appellants”) jointly appeal

their convictions and sentences for six counts of conspiracy, each

arising out of illegal drug activity.         For the reasons below, we

affirm each of Appellants’ convictions and sentences.

                            I.   BACKGROUND

     The Government charged Appellants by indictment with the

following   counts:   (1)   conspiracy   to   possess   with    intent     to

distribute more than 1000 kilograms of marijuana, (2) conspiracy to

import more than 1000 kilograms marijuana, (3, 4, 5) three counts

of conspiracy to launder monetary instruments, and (6) conspiracy

to possess a firearm in furtherance of a drug trafficking crime.

The charges arose out of the elaborate drug trafficking operation
of Robert W. Fansler.    According to the Government, Appellants and

Fansler orchestrated and financed a multi-million dollar marijuana

distribution enterprise.    The indictment alleged, inter alia, that

Appellants’   coconspirators      smuggled   marijuana,   currency,   and

firearms between Mexico and the United States.       The jury convicted

on all counts.   After the verdict, Appellants moved to dismiss and

for a new trial on grounds of speedy trial right violations and

ineffective assistance of counsel.        The district court denied the

motions.

     As to sentencing, the court adopted the presentence reports’

guideline applications.      Appellant Maria Hernandez’s Guideline

range was 235 to 293 months imprisonment.            Appellant Rutilio

Hernandez’s Guideline range was 360 months to life imprisonment.

However, the court indicated that it would impose sentences “below

the guideline range” based on the “Court’s own departure.”             It

sentenced Maria Hernandez to six concurrent terms of 204 months

imprisonment and Appellant Rutilio Hernandez to six concurrent

terms of 240 months imprisonment.        This appeal followed.

                            II.   DISCUSSION

A.   Speedy Trial

     Appellants’ first claim is that the district court erred by

denying their post-trial motions to dismiss the charges on speedy

trial grounds.      Appellants make arguments under both the Speedy

Trial Act, 18 U.S.C. §§ 3161–74, and under the Sixth Amendment.



                                     2
Under both authorities, this claim fails.

     1.    Speedy Trial Act Claim

     Appellants contend that their post-verdict motions to dismiss

should have been granted because the Government failed to bring

them to trial within seventy days.            See 18 U.S.C. § 3161(c)(1).

However, the district court properly held that Appellants waived

their right to dismissal under the Speedy Trial Act because they

did not move for dismissal before trial.                  See 18 U.S.C.A. §

3162(a)(2) (“Failure . . . to move for dismissal prior to trial

. . . shall constitute a waiver of the right to dismissal . . . .”)

     Despite the plain language of section 3162(a)(2), Appellants

argue that Speedy Trial Act provisions are not waivable, citing

United States v. Willis, 958 F.2d 60 (5th Cir. 1992).                 Contrary to

Appellants’ arguments, Willis is inapposite.              Willis held that a

particular period of delay was not excludable from the 70-day

maximum simply because a defendant acquiesces to the delay. Willis

did not    address   the   situation       here,   in   which   the   Appellants

entirely failed to assert their speedy trial rights until after the

verdict.   Under these circumstances, section 3162(a)(2) manifestly

provides that Appellants have waived the right to dismissal.                 See

United States v. Jackson, 30 F.3d 572 (5th Cir. 1994).

     2.    Sixth Amendment Speedy Trial Right

     Appellants also assert a constitutional speedy trial claim.

In Barker v. Wingo, 407 U.S. 407 (1972), the Supreme Court set


                                       3
forth a series of factors that courts should evaluate and balance

in assessing such claims.    Those factors are: “(1) the length of

the delay, (2) the reason for [it], (3) the defendant’s diligence

in asserting his Sixth Amendment right, and (4) prejudice to the

defendant resulting from the delay.” United States v. Cardona, 302

F.3d 494, 496 (5th Cir. 2002). A full-fledged four-factor analysis

is warranted here because the total time from indictment to trial

exceeded one year.     See United States v. Frye, 372 F.3d 729,

736–737 (2004) (discussing this Court’s “one-year guideline” for

whether the delay length is sufficient to call for an analysis of

all four Barker factors).

     Upon analyzing the relevant factors, the district court found

no Sixth Amendment violation. The standard of review for assessing

a court’s “four-factors balancing” is unresolved in this Circuit.

Id. at 735–36.   We will assume arguendo that our review is de novo.

     In undertaking a “full Barker-analysis,” we initially look to

“the first three factors (delay-length; reason for it; diligence in

asserting right) in order to determine whether prejudice will be

presumed or whether actual prejudice must be shown.”    Id. at 736.

Prejudice may be presumed where the first three factors weigh

“heavily” in the defendant’s favor.    See United States v. Serna-

Villarreal, 352 F.3d 225, 231 (5th Cir. 2003).

     As to the first factor, the fourteen-month delay here—though

long enough to prompt a full Barker analysis—is far too short to

                                  4
weigh in favor of presuming prejudice.              Id. at 232.    Additionally,

the third factor weighs heavily in the Government’s favor because

Appellants failed to assert their speedy trial rights until after

conviction.     Barker, 407 U.S. at 532.

     Appellants’ argument focuses entirely on the second factor:

the reason for the delay.        Appellants contend that the Government

misled   the   court    and   wrongfully         obtained   continuances.      The

Government     sought   continuances        to    secure    the   attendance   and

testimony of a Government witness, Fansler, who had absconded to

Mexico prior to Appellants’ trial.               In arguing for a continuance,

the Government represented that Fansler’s testimony was “absolutely

necessary” to its case.       Appellants argue that this was misleading

inasmuch as the Government eventually proceeded to trial and

obtained   a   conviction     without   this       “so-called     ‘essential   and

absolutely necessary witness.’”

     Under Doggett v. United States, the second Barker factor cuts

strongly in favor of a defendant where the Government acts in bad

faith, intentionally holding up prosecution for the purpose of

prejudicing the defendant. 505 U.S. 647, 656 (1992).                    Cases of

“official negligence” weigh less heavily against the Government,

and “the weight assigned to [negligent delay] increases as the

length of the delay increases.”         Serna-Villarreal, 352 F.3d at 232

(internal quotation marks omitted).

     The Government’s actions do not show bad faith.                 The district


                                        5
court found that the Government acted “in good faith” to secure the

testimony of a material witness.            According to the Government,

Fansler was to testify that Rutilio and Maria Hernandez were, in

fact, the “Rudy” and “Maria” frequently referred to in his drug-

dealing records.1        As the district court reasoned, the fact that

the Government was eventually “forced to proceed to trial without

the witness” fails to demonstrate that the Government did not

honestly believe its representations that Fansler’s testimony was

crucial when it made those representations.

      We doubt that the Government’s actions amounted even to

official negligence.         However, assuming that they did, this would

not   show      that   prejudice   should   be   presumed    in   this   case.

Government-sought continuances resulted only in a comparatively

brief delay: 195 days.2         The minor delay in this case, even if

caused     by   Government    negligence,   would   not     warrant   presumed

prejudice.       See, e.g., Robinson v. Whitley,      2 F.3d 562, 570 (5th

Cir. 1993).

      Prejudice cannot be presumed because the first three Barker

factors do not cut strongly in Appellants’ favor.             Appellants fail

to argue that they suffered any actual prejudice. Therefore, their

Sixth Amendment speedy trial claim must fail.


      1
       Appellants’ theory of the case is mistaken identity.
They contend that a different “Rudy” and “Maria” were associated
with Fansler’s drug enterprise.
      2
          Additional delay resulted from defense continuances.

                                       6
B.   Use of Successor Judge

     Appellants’ second claim is that they should receive a new

trial    because   a   second   judge—and   not   their   original   trial

judge—presided over post-trial motions and sentencing.         This claim

has no merit because Federal Rule of Criminal Procedure 25(b)

expressly authorizes successor judges where the original trial

judge cannot perform post-trial duties.

C.   Ineffective Assistance of Counsel

     For their third claim, Appellants argue that this Court should

order a new trial because they received ineffective assistance of

counsel.    We decline to address this issue on direct review.         We

“resolve claims of inadequate representation on direct appeal only

in rare cases where the record allow[s] us to evaluate fairly the

merits of the claim.” United States v. Sanchez-Pena, 336 F.3d 431,

445 (5th Cir. 2003).     This is not such a rare case.      The issue was

not fully litigated below: no evidentiary hearing was held; the

documentary evidence is one-sided; and the district court did not

make findings of fact or otherwise address Appellants’ claims on

the merits.    In short, the record is insufficiently developed for

us to resolve Appellants’ ineffectiveness claims at this time.3


     3
      Appellants point out that the district court—in the course
of dismissing Appellants’ motions for new trial for lack of
jurisdiction—opined that Appellants made “a compelling argument
for a claim of ineffective assistance.” This does not change our
view that the record is inadequate for resolving the claim on
direct review. Whether or not Appellants made a compelling prima
facie argument for ineffective assistance, the underdeveloped

                                     7
D.   Sufficiency

     Appellants’ fourth claim is that the Government presented

insufficient evidence to prove that they conspired to commit an

offense under 18 U.S.C. § 924(c)(1)(A).       That statute prohibits

“firearm possession that furthers, advances, or helps forward [a]

drug trafficking offense.”   United States v. Ceballos-Torres, 218

F.3d 409, 415 (5th Cir. 2000).       Our standard of review dictates

affirmance unless no rational trier of fact could have found

Appellants guilty of the offense.       See, e.g., United States v.

Webster, 421 F.3d 308, 311 (5th Cir. 2005).

     Appellants contend that the evidence is insufficient because

the Government never proved “that either Appellant ever possessed

a firearm.”   This argument fails.    The Government was not required

to prove that Appellants themselves possessed a firearm since it

charged them with conspiracy to violate the relevant statute.    See

United States v. Dean, 59 F.3d 1479, 1489 (5th Cir. 1995) (holding

that a defendant may “be convicted under section 924(c) based on a

co-conspirator’s possession of a weapon during a drug trafficking

crime” so long as that possession was foreseeable).      As explored

below, proof at trial showed that at least two of Appellants’

coconspirators foreseeably possessed firearms.

     Appellants also charge that the Government failed to prove



nature of the record does not permit us to finally resolve it on
direct review.

                                 8
that any firearms were connected to drug trafficking. We disagree.

The Government presented evidence showing that federal agents found

a large cache of firearms at Fansler’s residence.            Those firearms

were   found   along   with   paperwork    related   to   the   drug-running

conspiracy and $525,000 in cash.         Additionally, one of Appellants’

drug-smugglers, Dennis Jackson, testified that he smuggled firearms

into Mexico on multiple occasions.           Before one trip to Mexico,

Jackson picked up firearms from Appellants’ property.

       The Government also presented evidence showing that smuggled

firearms commonly are used in connection with drug trafficking.              A

federal agent testified at trial that drug smugglers often use

firearms to    “buy    protection   for    the   people   involved    in   drug

trafficking, including growers.”            The Government also adduced

testimony that smuggled firearms frequently are used “as a trade

and barter in lieu of money for narcotics.”          The Supreme Court has

held that “using a firearm in a guns-for-drugs trade” shows a

sufficient nexus between firearms and drug trafficking to warrant

conviction under section 924(c).         Smith v. United States, 508 U.S.

223, 236 (1993).

       The jury rationally could have concluded based on the evidence

presented that Appellants conspired to use firearms to further,

advance, or help forward a drug trafficking offense.                 For these

reasons, we affirm Appellants’ convictions.




                                     9
E.   Firearm Enhancement

     As to sentencing, Appellants argue that the district court

incorrectly     enhanced      their    sentences    pursuant     to     U.S.S.G.

§ 2D1.1(b)(1).         Section 2D1.1(b)(1) provides for a two-level

sentencing enhancement “if a dangerous weapon (including a firearm)

was possessed” in connection with a drug trafficking conspiracy.

This Court reviews interpretations of the Sentencing Guidelines de

novo and findings of fact connected to sentencing for clear error.

United States v. Smith, 440 F.3d 704, 709 (5th Cir. 2006).

     In     challenging      the   enhancement,     Appellants      essentially

reiterate     their    sufficiency     claims,     arguing    (1)     that   they

themselves never possessed firearms and (2) that any possession was

unconnected to the drug-trafficking offense.                 As to the first

contention, “[a] defendant’s sentence may properly be enhanced

under U.S.S.G. § 2D1.1(b)(1) if the possession of a firearm by one

of his coconspirators was reasonably foreseeable.”               United States

v. Dixon, 132 F.3d 192, 202 (5th Cir. 1997).              As explained above,

the Government showed that Appellants’ coconspirators possessed

firearms,     and     that    possession    was    foreseeable      under    the

circumstances.          See    id.    (holding     that      “ordinarily      one

coconspirator’s use of a firearm will be foreseeable because

firearms are tools of the trade in drug conspiracies”) (internal

quotation marks omitted).          The district court did not clearly err

in finding that Appellants’ coconspirators foreseeably possessed a


                                       10
firearm.

       Appellants’     argument     that      any     firearm     possession   was

unconnected to drug trafficking also fails.              The Government showed

a sufficient nexus between the firearms and drug trafficking to

obtain a section 924(c) conviction.                 The showing required for a

section 2D1.1 sentencing enhancement is lower than that required

for a conviction under section 924(c).               See U.S.S.G. § 2D1.1 cmt.,

n.3; see also ROGER W. HAINES     ET AL.,   FEDERAL SENTENCING GUIDELINES HANDBOOK:

TEXT   AND   ANALYSIS, 510–15 (2006 ed).        For the same reasons that a

rational       jury   probably    could      have     found     that   Appellants’

coconspirators used the firearms to further, advance, or help

forward a drug trafficking offense, the judge did not clearly err

in determining that the firearms were connected to the offense for

the purposes of section 2D1.1.4

F.     Statement of Reasons

       In their second sentencing challenge, Appellants contend that

the district court insufficiently explained the reasons for their

sentences.        Under 18 U.S.C. § 3553(c), a district court must

explain “the reasons for its imposition of a particular sentence.”

This requirement is satisfied when the district court “indicates



       4
      For the first time in their reply brief, Appellants argue
that the Guidelines prohibit a section 2D1.1(b)(1) enhancement
where the defendant is also convicted under section 924(c). We
do not address this issue because Appellants effectively waived
it by failing to raise it in their opening brief. See, e.g.,
United States v. Jackson, 426 F.3d 301, 304 n.2 (5th Cir. 2005).

                                       11
the applicable guideline range and how it is chosen.”                  United

States v. Reyes-Lujos, 238 F.3d 305, 310 (5th Cir. 2001).                The

court here did so.         In its statements of reasons, the court

indicated the Guideline range as to each count.            It also stated

that it was “adopt[ing] the presentence report and guideline

applications.”    Id.

     Appellants argue, however, that the district court should have

provided the additional, more thorough articulation required for

non-Guideline    sentences    since    it   sentenced   them   below   their

Guideline ranges.       See Smith, 440 F.3d at 707.     Assuming that the

district court insufficiently articulated its reasoning for giving

Appellants a sentence lower than their Guideline ranges, any error

did not prejudice Appellants.

     Finally, Appellants complain that the district court failed to

explicitly rule on their specific requests for downward departures

before it gave them sentences below their Guideline ranges.             This

argument overlooks that this Court ordinarily has no jurisdiction

to review a court’s refusal to depart downwardly.               See United

States v. Valencia-Gonzales, 172 F.3d 344, 346 (5th Cir. 1999).5

The jurisdictional bar applies even where the district court

responds to a request for downward departure with a “summary denial



     5
      The exception, not relevant here, is where the defendant
points to something in the record indicating that the district
court held an erroneous belief that it lacked the authority to
depart. Valencia-Gonzales, 172 F.3d at 346.

                                      12
without explanation” or with an implicit denial by imposing a

Guideline sentence.   Id.; United States v. Alcala, 165 Fed. App’x.

333, 334 (5th Cir. Jan. 31, 2006) (unpublished).       Here, the court

implicitly denied Appellants’ particularized departure requests by

imposing a sentence based on its own departure grounds.       We have no

jurisdiction to review Appellants’ apparent claim that the court

should have departed further.       See United States v. Alvarez, 51

F.3d 36,   40–41   (5th   Cir.   1999).   In   conclusion,   Appellants’

sentencing challenges fail.

     For the reasons above, Appellants’ convictions and sentences

are AFFIRMED.




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