                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        JUL 30 2020
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    19-50013

                Plaintiff-Appellee,             D.C. No. 8:13-cr-00108-AG-1

 v.
                                                MEMORANDUM*
PEDRO HERNANDEZ, AKA Flaca Flaca,
AKA Flaco,

                Defendant-Appellant.

                   Appeal from the United States District Court
                      for the Central District of California
                   Andrew J. Guilford, District Judge, Presiding

                              Submitted July 6, 2020**
                                Pasadena, California

Before: PAEZ and BADE, Circuit Judges, and MELGREN,*** District Judge.

      Pedro Hernandez was convicted in the Central District of California of

multiple drug and gun offenses and sentenced to seventy months of imprisonment.


      *
             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 Eric F. Melgren, United States District Judge for the
District of Kansas, sitting by designation.
Prior to his trial, the district court denied Hernandez’s motion to dismiss the

Government’s indictment on Sixth Amendment speedy trial grounds and under

Federal Rule of Criminal Procedure 48(b). We review the district court’s legal

analysis on a Sixth Amendment claim de novo and its factual findings for clear

error. United States v. Gregory, 322 F.3d 1157, 1160 (9th Cir. 2003). We review

a denial of a Rule 48(b) motion for abuse of discretion. United States v. Sears,

Roebuck & Co., 877 F.2d 734, 737 (9th Cir. 1989). Exercising jurisdiction under

28 U.S.C. § 1291, we affirm the district court’s ruling.

      1.     To determine if a Sixth Amendment speedy trial violation occurred,

we apply the four-factor test articulated in Barker v. Wingo, 407 U.S. 514, 530, 92

S. Ct. 2182, 33 L. Ed. 2d 101 (1972). Those factors are: (1) length of delay, (2)

reason for the delay, (3) the defendant’s assertion of his speedy trial rights, and (4)

prejudice to the defendant. Id. “A court balances all four of these factors in a

practical, case-by-case analysis under Barker.” United States v. Myers, 930 F.3d

1113, 1120 (9th Cir. 2019) (citation omitted). No single factor is “either a

necessary or sufficient condition to the finding of a deprivation of the right of

speedy trial.” Barker, 407 U.S. at 533. “Rather, they are related factors and must

be considered together with such other circumstances as may be relevant.”1 Id.


1
 The first Barker factor is not disputed. The Government concedes that the delay
exceeds the one-year delay generally considered presumptively prejudicial. See
United States v. Myers, 930 F.3d 1113, 1119 (9th Cir. 2019). Although

                                           2                                      19-50013
      Hernandez was indicted on federal charges in July 2013, but the FBI’s

attempts to locate and arrest Hernandez proved unsuccessful. Approximately

eighteen months after he was indicted by the federal government, Hernandez was

arrested on unrelated state charges in Yuma County, Colorado. A federal detainer

was issued against Hernandez, but the FBI (by its own admission) had negligently

lifted the detainer prior to his release from state custody in June 2015. The FBI did

not apprehend Hernandez until February 2017, when he was arrested pursuant to a

renewed detainer and transferred to California to face federal charges. Therefore,

the FBI’s negligence caused Hernandez’s federal trial to be delayed an additional

twenty months.

      Finding that Hernandez avoided apprehension by living under an alias in a

remote part of Colorado, the district court attributed the twenty-three months

preceding his release from state custody to Hernandez’s conduct. Hernandez

contends that the district court’s findings were not supported by any evidence.

Regardless of whether Hernandez took steps to avoid apprehension, the second

factor favors dismissal only if the Government failed to pursue Hernandez with

“reasonable diligence.” United States v. Mendoza, 530 F.3d 758, 763 (9th Cir.

2008). We hold that the Government satisfied this obligation when it attempted to


Hernandez’s “prompt assertion of [his] speedy trial rights weighs, at least slightly,
in [his] favor,” Barker’s third factor does not tip the balance here. See Gregory,
322 F.3d at 1162 n.4. Accordingly, we discuss only the second and fourth factor.

                                          3                                    19-50013
arrest Hernandez at his last-known address, circulated Hernandez’s photograph at

nearby businesses, and monitored a federal law enforcement database. Our

holding renders it unnecessary to resolve Hernandez’s challenge to the district

court’s factual findings.

      Barker’s fourth factor requires that we consider how the delay prejudiced

Hernandez. Because only twenty months of the delay in this case is attributable to

the Government’s negligence, Hernandez has the burden to demonstrate actual

prejudice. See Gregory, 322 F.3d at 1162–63; United States v. Beamon, 992 F.2d

1009, 1013–14 (9th Cir. 1993).

      We affirm the district court’s ruling that Hernandez suffered no actual

prejudice. The Supreme Court recognizes that an unreasonable delay can prejudice

a defendant in three ways: (1) “oppressive pretrial incarceration,” (2) “anxiety and

concern of the accused,” and (3) “the possibility that the defense will be impaired.”

Barker, 407 U.S. at 532. Hernandez claims to have suffered all three types of

prejudice, but his assertions are not persuasive.

      Hernandez argues that he suffered oppressive pretrial incarceration because

the Government negligently released a federal detainer on him while he was held

by Colorado authorities, and this act of negligence caused him to lose custody

credits that would have reduced the time spent serving his federal sentence.

Assuming loss of pretrial custody credits would have caused him actual prejudice,


                                          4                                     19-50013
Hernandez fails to explain how he would have been entitled to them had the

federal detainer not been lifted.

      Hernandez contends that he suffered excessive anxiety when he was arrested

on federal charges twenty months after he had been released from Colorado

custody. There is little in the record to support Hernandez’s claims of anxiety.

      Lastly, Hernandez argues the long delay impaired his ability to prepare an

adequate defense. He asserts that “the passage of time . . . unquestionably affected

the memory of [Hernandez] and the [law enforcement] agents” without any

specific examples or proof that Hernandez’s defense was impaired by dimmed

memories. This assertion is speculative, and the district court correctly concluded

that Hernandez failed to meet his burden to prove actual prejudice. United States

v. Corona-Verbera, 509 F.3d 1105, 1112–13 (9th Cir. 2007). Therefore, we affirm

the district court’s holding that Hernandez’s Sixth Amendment rights were not

infringed upon.

      2.     The district court did not abuse its discretion in denying Hernandez’s

Rule 48(b) motion. A Rule 48(b) dismissal is a severe remedy that “should be

imposed only in extreme circumstances.” Sears, 877 F.2d at 737. Hernandez

makes no showing that the district court abused its discretion in denying dismissal

under Rule 48(b). Moreover, Hernandez has not cited any case where this Court

deemed a denial of a Rule 48(b) motion to be an abuse of discretion.


                                         5                                   19-50013
AFFIRMED.




            6   19-50013
