                      United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 03-1459
                                     ___________

United States of America,            *
                                     *
             Appellee,               *
                                     * Appeal from the United States
      v.                             * District Court for the
                                     * Southern District of Iowa.
Jose Perez-Perez, also known as      *
Felix Zarate-Velazquez,              *
                                     *
             Appellant.              *
                                ___________

                               Submitted: June 11, 2003

                                    Filed: July 30, 2003
                                     ___________

Before MORRIS SHEPPARD ARNOLD, HEANEY, and RILEY, Circuit Judges.
                         ___________

RILEY, Circuit Judge.

       Jose Perez-Perez (Perez) entered a conditional guilty plea to illegal reentry
following deportation, in violation of 8 U.S.C. § 1326(a). The district court1
sentenced him to 46 months imprisonment. Perez appeals his conviction and
sentence, arguing (1) all evidence of his identity should have been suppressed; (2) his
constitutional and statutory rights to a speedy trial were violated; and (3) the statutory

      1
        The Honorable Ronald E. Longstaff, Chief Judge, United States District Court
for the Southern District of Iowa.
sentence enhancement based on his prior conviction violates Apprendi v. New Jersey,
530 U.S. 466 (2000). We affirm.

I.     BACKGROUND
       On April 3, 2002, Perez was arrested during the execution of a search warrant
at a business, Kora Fashions. Perez drove into the parking lot and the agents of the
drug task force immediately took him inside. An Immigration and Naturalization
Service (INS) agent, Jose Aponte (Aponte), informed Perez of his Miranda rights in
Spanish and asked Perez questions. Perez incriminated himself by admitting his
identity and legal status as an alien. Since Perez was taken into custody only because
of his appearance outside a business during business hours, the district court held law
enforcement did not have probable cause to arrest Perez, and his arrest was an illegal
seizure under the Fourth Amendment.

      Perez was held in the Polk County jail on state drug charges. On April 16, civil
deportation proceedings began and Perez was in INS custody. Aponte determined
Perez had been involved in a 1996 state forgery crime and informed state officials.
Without the knowledge of the U.S. Attorney’s Office, Perez was then returned to Polk
County custody, where he was arraigned and later pled guilty to the forgery.

      On April 24, a federal grand jury indicted Perez for illegal reentry following
deportation. Because he was in state custody, Perez was not arraigned on the federal
charge until July 11, 2002. After the district court denied Perez’s motion to dismiss,
and denied, in part, his motion to suppress identity evidence, Perez entered a
conditional plea of guilty on November 1, 2002, and on February 7, 2003, was
sentenced under 8 U.S.C. § 1326(a) and (b)(2).




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II.    DISCUSSION
       A.    Fourth Amendment - Identity Evidence
       We will not reverse the district court’s decision regarding a motion to suppress
“unless it is not supported by substantial evidence on the record; it reflects an
erroneous view of the applicable law; or upon review of the entire record, the
appellate court is left with the definite and firm conviction that a mistake has been
made.” United States v. Layne, 973 F.2d 1417, 1420 (8th Cir. 1992). On a motion
to suppress, we review the district court’s findings of fact for clear error; however,
we review de novo the district court’s ultimate legal conclusions drawn from the
facts. United States v. Rodriguez-Arreola, 270 F.3d 611, 615 (8th Cir. 2001).

        The matter before us is a legal issue: whether the exclusionary rule requires
suppression of identity evidence obtained after an unlawful arrest, even though such
evidence was obtained as part of an unrelated legal proceeding. Perez argues all
evidence of his identity discovered after his illegal arrest–during the deportation and
unrelated state court proceedings–should be suppressed because of his illegal arrest
and INS questioning. Although Perez does not challenge the legality of the state
forgery charge and conviction, he argues the separate nature of the state proceeding
did not act to dissipate the taint of the initial illegal arrest under the attenuation
doctrine. The district court held all identity evidence which existed before Perez’s
arrest and all identity evidence obtained after the start of civil deportation
proceedings was admissible because the evidence was not tainted by the unlawful
arrest.

       It is no surprise “[t]he ‘body’ or identity of a defendant or respondent in a
criminal or civil proceeding is never itself suppressible as a fruit of an unlawful
arrest, even if it is conceded that an unlawful arrest, search, or interrogation
occurred.” INS v. Lopez-Mendoza, 468 U.S. 1032, 1039 (1984). However, identity
evidence, specifically fingerprints, taken as a fruit of a Fourth Amendment violation
should be suppressed. United States v. Guevara-Martinez, 262 F.3d 751, 756 (8th

                                         -3-
Cir. 2001). In Guevara-Martinez, we determined that since the fingerprints were
taken during an illegal detention after the suspect talked to an INS agent, rather than
part of routine booking, they should be suppressed. We noted, however, “untainted
fingerprints” could be obtained in the civil deportation proceeding. Id. We refused
to reverse the suppression, even though the untainted prints could be made at any
time. Id.; see also Rodriguez-Arreola, 270 F.3d at 618-19 (prosecution may proceed
with untainted evidence of identity).

       Here, the civil deportation proceeding had already started, providing
“untainted” identity evidence. Other untainted identity evidence existed from the
state court proceedings. Thus, we affirm the district court’s denial of Perez’s motion
to suppress the identity evidence obtained after the civil deportation proceedings
began.

      B.      Speedy Trial
              1. Speedy Trial Act
       “In the context of the Speedy Trial Act, we review the district court’s findings
of fact for clear error and the district court’s legal conclusions de novo.” United
States v. Van Someren, 118 F.3d 1214, 1216 (8th Cir. 1997). “If a defendant is not
brought to trial within the time limit required by section 3161(c) as extended by [the
excluded delays of] section 3161(h), the information or indictment shall be dismissed
on motion of the defendant.” United States v. Blankenship, 67 F.3d 673, 675 (8th
Cir. 1995) (alteration in original) (quoting 18 U.S.C. § 3162(a)(2)). Essentially, a
defendant’s trial must occur within 70 days of his indictment or first appearance,
whichever occurs later. 18 U.S.C. § 3161(c)(1). However, certain periods of time
may be excluded, including “delay resulting from trial with respect to other charges
against the defendant.” 18 U.S.C. § 3161(h)(1)(D); see United States v. Goodwin,
612 F.2d 1103, 1105 (8th Cir. 1980) (the period a defendant is “awaiting trial” in
state court is excluded).



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       Perez was indicted for illegal reentry on April 24, 2002. Although Perez was
not in attendance, his attorney appeared at the arraignment scheduled for April 26.
The arraignment was continued when the district court learned Perez was in state
custody. Perez argues the Speedy Trial Act was violated because the speedy trial
clock began to run on April 26, and he was not tried by July 5, the 70th day thereafter.
However, because Perez was in state custody, he was not arraigned on the federal
charge on April 26. Perez was arraigned on the federal charge on July 11, 2002.
Therefore, the speedy trial clock began to run on July 11, 2002, pursuant to
§ 3161(c)(1). Perez acknowledges no other potential violation occurred. Because we
find no clear error in the determination of when Perez’s arraignment occurred, and
no legal error, we affirm the district court’s denial of Perez’s motion to dismiss the
indictment based on a Speedy Trial Act violation.

               2. Sixth Amendment
       It is rare when the Sixth Amendment has been violated, but the Speedy Trial
Act has not. See United States v. Sprouts, 282 F.3d 1037, 1042 (8th Cir. 2002). The
Supreme Court identified four factors to consider when applying a Sixth Amendment
balancing test to a pretrial delay: the length of delay, the reason for delay, whether
the defendant asserted the right to a speedy trial, and whether the defendant suffered
any prejudice. Barker v. Wingo, 407 U.S. 514, 530 (1972).

      “[T]he Sixth Amendment right to a speedy trial attaches at the time of arrest or
indictment, whichever comes first, and continues until the trial commences,” and no
Sixth Amendment right to a speedy trial arises until charges are pending. Sprouts,
282 F.3d at 1042 (citation omitted). Perez argues “attachment” occurred on April 15,
when the U.S. Attorney’s office notified the INS of the imminent criminal
prosecution. Alternatively, Perez argues attachment occurred either on April 16,
when civil deportation proceedings began, or on April 24, when he was indicted.




                                          -5-
       A delay approaching one year may meet the threshold for presumptively
prejudicial delay requiring a speedy trial inquiry. See Doggett v. United States, 505
U.S. 647, 652 n.1 (1992); United States v. Walker, 92 F.3d 714, 717 (8th Cir. 1996)
(37 month delay presumptively prejudicial); cf. United States v. Patterson, 140 F.3d
767, 772 (8th Cir. 1998) (five-month period between detention and trial on drug
charges, interrupted by pretrial motions, “was not sufficiently long to be
presumptively prejudicial”); United States v. McFarland, 116 F.3d 316, 318 (8th Cir.
1997) (delay just over seven months did not trigger Sixth Amendment analysis).
Perez argues the five-month delay between his arrest and the first trial date,
September 3, shows presumptive prejudice because of the relatively simple aspects
of a § 1326 case. We disagree. Five months is not a presumptively prejudicial delay;
therefore, we need not examine the remaining three Barker elements. Doggett, 505
U.S. at 651-52; Sprouts, 282 F.3d at 1043.

       Nevertheless, we will respond to Perez’s allegations of specific prejudice and
intentional delay. Perez argues he was prejudiced because his criminal history score
included the state forgery conviction. However, the district court considered the
timing of his forgery conviction during sentencing by reducing Perez’s criminal
history category from IV to III. Perez speculates the district court might have further
reduced his criminal history to category II. Such a result is unlikely because the
forgery conviction added only one criminal history point, resulting in a total of seven
(category IV). Removing the conviction results in six criminal history points
(category III). The district court noted that the forgery crime occurred in 1996, but
it was not prosecuted until 2002. The district court still determined Perez’s criminal
history category overstated the seriousness of his past crimes. While he had a serious
drug-related conviction from 1996, he had little other criminal history. Furthermore,
the district court was free to consider the forgery charge while the charge was
pending. See U.S.S.G. § 4A1.3(d). For these reasons Perez suffered no prejudice by
the delay.



                                         -6-
       The district court determined the government did not intentionally delay trial
to attain a tactical advantage, a factual finding we review for clear error. There is no
evidence the government sought extensions to gain a tactical advantage. The reason
for the delay in this case was the pendency of the state charges. Such a delay should
not be counted against the government. See Walker, 92 F.3d at 719 (eleven months
in state prison for state charges, not used as federal pretrial detention, did not
contribute to prejudice). Perez’s motions to dismiss and suppress caused additional
delay. We find no clear factual error or legal error in the district court’s
determination.

              3. Fifth Amendment
        Perez also argues the pre-trial delay violated his Fifth Amendment due process
right. Although we question the applicability of the Fifth Amendment in the context
of any pretrial delay here, this claim fails for the same reasons Perez’s other speedy
trial claims fail, primarily because Perez did not suffer any “actual and substantial
prejudice,” and there is no evidence the government intentionally delayed “to gain
tactical advantage.” See United States v. Brockman, 183 F.3d 891, 896-97 (8th Cir.
1999) (no prejudice from pre-indictment delay causing higher sentencing potential).

              4. Rule 5(a)
       Federal Rule of Criminal Procedure 5(a) requires an arresting officer to take
the arrested person without unnecessary delay before the nearest available federal
magistrate judge (or, if not available, before a state or local judicial officer authorized
by statute). Perez was initially arrested in relation to a state drug charge, then held
under an INS detainer when the state prosecutor dismissed the drug charge. Perez
argues the INS detention triggered Rule 5(a) on April 15, and he suffered delay until
July 11, the date of his federal arraignment. Alternatively, he argues there was even
unnecessary delay from April 15 until April 20, when he was transferred to state
custody on the forgery charge.



                                           -7-
      In support of his position, Perez cites United States v. Keeble, 459 F.2d 757
(8th Cir. 1972). In Keeble, an Indian was arrested for disorderly conduct, then
questioned by a federal officer regarding a death at the Indian’s home. Keeble was
not brought before a magistrate judge for 99 hours. The case was remanded to
determine whether prejudice from the delay existed, for example by causing him to
confess over a day after his arrest. Id. at 759-61. Perez argues he suffered the
prejudice of not having his initial appearance earlier, starting the speedy trial clock,
thus arguably dooming his speedy trial arguments. Perez seeks dismissal of the
indictment as a remedy.

       The civil deportation proceedings began on April 15. Civil deportation
proceedings do not trigger the criminal rules of procedure, including Rule 5(a).
United States v. Noel, 231 F.3d 833, 837 (11th Cir. 2000) (detentions attendant to
deportation proceedings are civil in nature; they do not implicate Rule 5(a), which
only governs criminal arrests); see United States v. Grajales-Montoya, 117 F.3d 356,
366 (8th Cir. 1997) (INS proceedings do not implicate Speedy Trial Act); see also
United States v. Dyer, 325 F.3d 464, 468-70 (3d Cir. 2003) (INS working with or
notifying U.S. Attorney’s office did not support allegation of collusion to trigger
Speedy Trial Act). Therefore, Perez was not in federal criminal custody until July 11
when the arrest warrant for the April 24 federal indictment was executed. Thus, the
government did not violate Rule 5(a).

       C.     Apprendi
       Perez argues that 8 U.S.C. § 1326(b)(2) violates the Sixth Amendment
principles announced in Apprendi. In Apprendi, the Supreme Court held, “Other than
the fact of a prior conviction, any fact that increases the penalty for a crime beyond
the prescribed statutory maximum must be submitted to a jury, and proved beyond a
reasonable doubt.” Apprendi, 530 U.S. at 490. Perez pled guilty to the crime of
illegal reentry after deportation, which provides a two-year maximum sentence
pursuant to § 1326(a). Under § 1326(b)(2), the maximum sentence is twenty years

                                          -8-
if the alien had a prior aggravated felony conviction. The district court found Perez
had a prior aggravated felony and sentenced him accordingly to 46 months
imprisonment under the Sentencing Guidelines. “While a finding that the prior felony
conviction qualifies as ‘aggravated’ is a fact that can increase the defendant’s
sentence beyond the initially prescribed maximum sentence, the plain language of
Apprendi excepts the fact of prior convictions from its holding.” United States v.
Kempis-Bonola, 287 F.3d 699, 702 (8th Cir.), cert. denied, 123 S. Ct. 295 (2002); see
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998) (§ 1326(b)(2) is a
sentencing factor, not a separate criminal offense). Thus, the district court did not
violate Apprendi and 8 U.S.C. § 1326(b)(2) does not violate the Sixth Amendment.

III.   CONCLUSION
       For the reasons stated above, we affirm Perez’s conviction and sentence.

       A true copy.

             Attest:

                CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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