                                                                           FILED
                            NOT FOR PUBLICATION                             DEC 21 2012

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 12-30044

              Plaintiff - Appellee,              D.C. No. 2:09-cr-02043-EFS

       v.
                                                 MEMORANDUM *
VICENTE DIAZ-GARCIA,

              Defendant - Appellant.

                    Appeal from the United States District Court
                      for the Eastern District of Washington
                     Edward F. Shea, District Judge, Presiding

                     Argued and Submitted November 7, 2012
                               Seattle, Washington

Before: W. FLETCHER and FISHER, Circuit Judges, and QUIST, District Judge.**

      Vicente Diaz-Garcia appeals his conviction and sentence for illegal reentry into

the United States in violation of 8 U.S.C. § 1326. We reject his arguments and affirm.

We have jurisdiction pursuant to 28 U.S.C. § 1291.




        *
        This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
          The Honorable Gordon J. Quist, Senior District Judge, United States
District Court for the Western District of Michigan, sitting by designation.
      We review Sixth Amendment speedy trial claims de novo and underlying

factual findings for clear error. United States v. Mendoza, 530 F.3d 758, 762 (9th Cir.

2008). We review a district court’s decision whether to reduce a defendant’s sentence

for acceptance of responsibility for clear error. United States v. Johnson, 581 F.3d

994, 1001 (9th Cir. 2009). Absent a defendant’s objection before the district court,

we review a defendant’s sentence for plain error. United States v. Charles, 581 F.3d

927, 932 (9th Cir. 2009).

      First, the district court did not commit clear error in finding that delaying the

federal prosecution until after the state trial was justified because simultaneous state

and federal trials presented a risk of conflicting hearing dates and transportation.

Similarly, the district court’s finding that there was no evidence of bad faith by the

government for the four-month post-sentencing delay was not clear error. Moreover,

the district court did not clearly err in finding that Diaz-Garcia did not raise his right

to a speedy trial or express a desire to proceed on the indictment until after his

arraignment, despite much earlier knowledge of his indictment. Therefore, applying

the relevant factors, Barker v. Wingo, 407 U.S. 514, 530 (1972) (finding the four

relevant factors to a Sixth Amendment speedy trial claim are length of the delay,

reason for the delay, the defendant’s assertion of the right, and prejudice to the

defendant), we affirm on this issue.


                                            2
      Diaz-Garcia next concedes that this panel is bound by Ninth Circuit precedent,

Johnson, 581 F.3d at 1003–04, to reject his argument that the government was

required to move for a three-point reduction in his sentencing offense level for

acceptance of responsibility.

      Finally, we agree that the district judge, during sentencing, made an inaccurate

reference to an outdated cognitive disorder. However, reviewing the sentence for

plain error, we affirm the district court. The court reviewed and weighed evidence of

multiple mitigating factors, only one of which was Diaz-Garcia’s proffered cognitive

disorder, and sentenced Diaz-Garcia to the bottom of the guideline range.

      AFFIRMED.




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