                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        OCT 6 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    16-50160

                Plaintiff-Appellee,             D.C. No. 2:13-cr-00402-PA-1

 v.
                                                MEMORANDUM*
THOMAS HIDALGO, AKA Diablo,

                Defendant-Appellant.

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

                           Submitted August 31, 2017**
                              Pasadena, California

Before: W. FLETCHER and IKUTA, Circuit Judges, and BARKER,*** District
Judge.

      Thomas Hidalgo was charged in an indictment with two counts of

distributing a controlled substance, in violation of 18 U.S.C. §§ 841(a)(1),


      *
             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).
      ***
            The Honorable Sarah Evans Barker, United States District Judge for
the Southern District of Indiana, sitting by designation.
(b)(1)(B), and (b)(1)(C). He moved to dismiss the indictment on the grounds that

the 23-month period of post-indictment delay prior to his arrest violated his Sixth

Amendment right to a speedy trial and Federal Rule of Criminal Procedure 48(b).

The district court conducted an evidentiary hearing and ultimately denied his

motion to dismiss. Thereafter, Defendant entered a conditional guilty plea to both

counts and was sentenced to 60 months’ imprisonment. Hidalgo appeals the

district court’s denial of his motion to dismiss the indictment and his sentence.

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

review the district court’s legal rulings de novo. United States v. Gregory, 322

F.3d 1157, 1160 (9th Cir. 2003); United States v. Allen, 153 F.3d 1037, 1040 (9th

Cir. 1998). The district court’s factual findings underlying the decision on the

constitutional claim are reviewed for clear error. Gregory, 322 F.3d at 1160-61.

      The evidence underlying the district court’s factual conclusions was

sufficient and persuasive. There was no error in the denial of Hidalgo’s motion to

dismiss on Sixth Amendment grounds. The district court properly balanced the

four factors set out in Barker v. Wingo, 407 U.S. 514 (1972), for analyzing the

impact of such delay, to wit, the length of the delay, the reason for the delay, the

defendant’s assertion of his right, and prejudice to the defendant, and in

determining that there was no constitutional violation. It is undisputed that the 23-

month post-indictment delay was “presumptively prejudicial” and thus


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“unreasonable enough to trigger the Barker enquiry.” Doggett v. United States, 505

U.S. 647, 652 n.1 (1992). However, the remaining Barker factors do not support

Hidalgo’s constitutional claim for relief.

      In reviewing the second Barker factor, the reason for the delay, the district

court determined that the government had made reasonably diligent efforts to find

Hidalgo between 2013 and 2015 and that its negligence was not responsible for the

post-indictment delay in locating him.1 United States v. Mendoza, 530 F.3d 758,

763 (9th Cir. 2008). We find no error in those conclusions.

      The third Barker factor, to wit, the defendant’s assertion of the right to a

speedy trial, did not, according to the district court’s finding, weigh in Hidalgo’s

favor, given that he had requested two trial continuances in order to apply for a

diversion program before asserting that right. See, e.g., United States v. Corona-

Verbera, 509 F.3d 1105, 1116 (9th Cir. 2007) (“Because [the defendant] asserted

his speedy trial right only after requesting numerous continuances, we find this


1
  The government had made sustained, targeted efforts to locate Hidalgo
throughout this time period, including: (1) conducting surveillance at the address
listed on his California driver’s license, his business address, and his prior mailing
address as well as at multiple additional locations that searches of law enforcement
databases revealed were potentially connected to him; (2) placing Hidalgo’s
warrant into the NCIC database so that other federal, state, or local law
enforcement agencies would find it, if they encountered him; (3) seeking the
assistance of the Los Angeles County Police Department in their efforts to locate
him; (4) conducting internet searches for Hidalgo, including on social media
websites; and (5) arresting him at the airport after receiving information that he
was scheduled for a flight from Los Angeles International Airport to El Salvador.

                                             3                                 16-50160
factor weighs neither in favor of dismissal nor in favor of the government.”). We

find no error in this conclusion as well.

      Because the government was not negligent in its efforts to locate Hidalgo

and pursued him with reasonable diligence from the time of his indictment up to

his arrest, he is required under the fourth Barker factor “to demonstrate specific

prejudice; prejudice is not presumed.” Id. at 1116. As the district court found,

Hidalgo’s general and speculative assertions that the delay cost him the

opportunity to locate former employees who might have been witnesses and

potentially resulted in the diminution of the memory of witnesses or the loss and

destruction of evidence clearly do not rise to the level of actual prejudice.

      In sum, the Barker analysis was unavailing as a basis for Hidalgo’s

requested dismissal of the indictment. The district court did not err in denying his

motion to dismiss, so we affirm that holding.

      Hidalgo also appeals his sentence, arguing that the district court erred by

assessing criminal history points under the 2016 United States Sentencing

Guidelines (“U.S.S.G.”) for his uncounseled 2009 DUI state misdemeanor

conviction. He contends that the DUI conviction was unconstitutional because he

was not adequately advised by the state court judge of the consequences of waiving

his right to counsel and proceeding pro se and was not provided the services of a

Spanish language interpreter during the state court proceedings. We disagree.


                                            4                                   16-50160
      The district court correctly held that the rights apprisal and waiver of

counsel form completed by Hidalgo, before he entered his plea of nolo contendere

in the state case, was textually sufficient to adequately and correctly inform him of

his rights, including his right to counsel, and the dangers he faced in giving up

those rights, as well as in providing the basis for a constitutionally valid waiver.

Although the state court judge did not re-advise Hidalgo in open court of the risks

of proceeding without counsel, it is well-established that the information a

defendant must have in order to intelligently waive counsel depends upon the

particular facts and circumstances of the case, “including the defendant’s education

or sophistication, the complex or easily grasped nature of the charge, and the stage

of the proceeding.” Iowa v. Tovar, 541 U.S. 77, 88 (2004). Here, the record

before the district court reflected that Hidalgo, a high school graduate who had

taken real estate classes and had run his own businesses, possessed the necessary

intelligence and sophistication to make the state court waiver decision knowingly

and voluntarily. The record also reflected that he did not demonstrate any signs of

having an English language communication barrier that affected the validity of his

waiver. These facts defeat this claim by Hidalgo, both factually and legally.

      The district court correctly held that Hidalgo failed to establish by a

preponderance of the evidence that his 2009 conviction was unconstitutional and

that the judgment was not entitled to the benefit of the presumption of regularity


                                           5                                     16-50160
that attaches to a state conviction under United States v. Dominguez, 316 F.3d

1054 (9th Cir. 2003). No error was committed by the district court judge in

including that conviction in the calculation of his criminal history score and in the

final sentence under the Sentencing Guidelines.

       Even if the district court’s decision to include Hidalgo’s uncounseled DUI

misdemeanor in his criminal history category was erroneous, that error was

harmless because Hidalgo received the mandatory minimum sentence of 60

months’ imprisonment on count two of the indictment. This was the lowest

possible sentence, given the district court’s finding that Hidalgo was ineligible for

a safety valve reduction under 18 U.S.C. § 3553(f) (U.S.S.G. § 5C1.2), based on

his lack of candor and cooperation with the government. See United States v.

Mejia-Pimental, 477 F.3d 1100, 1103 (9th Cir. 2007) (holding that review of the

district court’s factual determination that a defendant is ineligible for safety valve

relief is for clear error).

       AFFIRMED.




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