                                                                           FILED
                           NOT FOR PUBLICATION                              JUN 25 2014

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 12-30392

              Plaintiff - Appellee,              DC No. 3:10 cr-0191 HZ

  v.
                                                 MEMORANDUM*
GERARDO MOSQUERA,

              Defendant - Appellant.


                   Appeal from the United States District Court
                            for the District of Oregon
                   Marco A. Hernandez, District Judge, Presiding

                        Argued and Submitted May 16, 2014
                                 Portland, Oregon

Before:        ALARCÓN, TASHIMA, and IKUTA, Circuit Judges.




          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      Appellant Gerardo Mosquera (“Mosquera”) was convicted of and sentenced

for two counts of a federal theft offense under 18 U.S.C. § 666(a)(1)(A).1 On

appeal, he challenges his conviction on speedy trial grounds, and separately argues

that the district court erred in denying his request for a downward departure based

on the conditions of his pretrial confinement in Columbia, in imposing a two-level

upward adjustment for obstruction of justice, and another two-level upward

adjustment for misuse of a Social Security number.

      1.     We do not reach the merits of Mosquera’s contentions that his speedy

trial rights were violated because we conclude that these claims were waived.

First, Mosquera waived his rights under the Speedy Trial Act by failing to file a

motion to dismiss on speedy trial grounds before trial. See 18 U.S.C. §

3162(a)(2).2 We similarly conclude that Mosquera voluntarily and knowingly

waived his Sixth Amendment right to a speedy trial. Although Mosquera initially


      1
           Mosquera was extradited from Colombia for these offenses, but the
government of Colombia denied extradition on the charge of misuse of a Social
Security Number.
      2
             The Act provides in relevant part:

      Failure of the defendant to move for dismissal prior to trial or entry of a plea
      of guilty . . . shall constitute a waiver of the right to dismissal under this
      section.

      18 U.S.C. § 3162(a)(2).

                                          2
objected to a continuance, he consented to the continuance after the district court

explained that it was in his best interest to allow his attorney time to prepare for

trial and he agreed to the date on which the trial was ultimately scheduled.

Mosquera made no other objections on speedy trial grounds and failed to file any

motions claiming a speedy trial violation. Therefore, he waived his Sixth

Amendment speedy trial right. See Barker v. Wingo, 407 U.S. 514, 529 (1972).

      2.     We affirm the district court’s denial of a downward departure based

on the conditions of confinement Mosquera experienced while he was imprisoned

in Colombia awaiting extradition. We have not yet decided whether harsh pretrial

confinement conditions may be a basis for a downward departure under U.S.S.G. §

5K2.0. We need not decide that issue today, however, because, even assuming

that such a basis for departure exists, Mosquera has not made an adequate factual

showing that he would be entitled to such a departure. Nothing, no sworn

evidence, supports his allegations, except references to public websites describing

general prison conditions in Columbia.

      3.     The district court did not err in imposing a two-level upward

adjustment for obstruction of justice under U.S.S.G. § 3C1.1. Evidence at trial

demonstrated that Mosquera filed false records in a related administrative

proceeding, which is sufficient to support an upward adjustment. See id.


                                           3
      4.     Finally, the district court did not err in imposing a two-level upward

adjustment for fraudulent use of a Social Security Number pursuant to U.S.S.G. §

2B1.1(b)(11)(C). The adjustment does not violate the doctrines of criminality and

specialty because the evidence used to enhance Mosquera’s sentence was different

from that in the extradition request: Mosquera’s extradition was requested for

misuse of a Social Security number to obtain a car loan while his sentence was

enhanced for fraudulent use of a Social Security Number to open a bank account in

connection with the fraudulent scheme for which he was convicted. In any event,

the use of evidence of Mosquera’s social security violations to enhance his

sentence for the theft of federal funds is not “punishment” under the extradition

doctrine of specialty. See United States v. Lazarevich, 147 F.3d 1061, 1063-64

(9th Cir. 1998) (citing Witte v. United States, 515 U.S. 389, 399 (1995)).

      The judgment of the district court is AFFIRMED.




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