FILED

NOT FOR PUBLICATION

OCT 16 2018

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, Nos. 17-10096 17-10320 Plaintiff-Appellee, D.C. No. v. 1:12-cr-00382-DAD-BAM-1

ALFONSO HERNANDEZ,

MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the Eastern District of California Dale A. Drozd, District Judge, Presiding

Submitted October 10, 2018** San Francisco, California

Before: McKEOWN, W. FLETCHER, and BYBEE, Circuit Judges.

Alfonso Hernandez has appealed his conviction on charges of receipt and

distribution of child pornography and his corresponding 210-month prison

* 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). sentence. Hernandez argues that the district court should have dismissed the

indictment against him because the 559-day period between his arraignment and

trial violated the Speedy Trial Act. Further, he argues that the district court failed

to make adequate findings of fact in support of its sentence. We affirm the district

court in full.

I. SPEEDY TRIAL ACT CLAIM

The Speedy Trial Act guarantees a criminal defendant a trial within 70 days

of the later of his indictment or arraignment, subject to certain exclusions. 18

U.S.C. § 3161. Where the Act is violated, the remedy is dismissal of the

indictment. See 18 U.S.C. § 3162(a)(2). However, dismissal is not automatic:

“Failure of the defendant to move for dismissal prior to trial or entry of a plea of

guilty or nolo contendere shall constitute a waiver of the right to dismissal.” Id.;

United States v. Brown, 761 F.2d 1272, 1276–77 (9th Cir. 1985) (holding that

defendant’s “failure to move for dismissal under the Speedy Trial Act prior to trial

results in waiver of the right to dismissal under it” (internal citation and alteration

omitted)). Thus, the defendant bears the burden of raising his Speedy Trial Act

claim in a timely motion to dismiss, or otherwise sees this argument waived.

Hernandez and his counsel chose not to file a motion to dismiss, and

Hernandez’s pre-trial statements and actions cannot be construed to override this

2 decision. In lieu of filing a motion, Hernandez sent an in propria persona letter to

the district court expressing concern about the Speedy Trial Act, and then informed

the court at a hearing that he wanted his counsel to seek dismissal on various non-

specific constitutional grounds. The court correctly explained to Hernandez that he

needed to discuss these matters with counsel, and then set a trial date. From this

point forward, neither Hernandez nor his counsel so much as suggested that he

would move to dismiss the indictment. As this court held in United States v. Lam,

251 F.3d 852, 854, 858 (9th Cir. 2001), absent a showing of deficient performance

of counsel, a defendant’s letters to the court and oral expression of a desire for a

speedy trial are insufficient to override counsel’s decision not to file a motion to

dismiss the indictment. Cf. United States v. Hall, 181 F.3d 1057, 1060–61 (9th

Cir. 1999) (concluding that the defendant preserved his speedy trial right,

notwithstanding his lawyer’s decision not to move to dismiss, where the defendant

filed in propria persona a motion for substitution of counsel and a motion to

dismiss). Because Hernandez waived his Speedy Trial Act claim by failing to

move to dismiss the indictment in the district court, we decline to address the

merits of his Speedy Trial Act claim.

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II. SENTENCING CLAIM

Hernandez also asserts that the district court failed to properly support its

sentence with findings of fact. We review the district court’s sentencing decisions

for abuse of discretion. Gall v. United States, 552 U.S. 38, 51 (2007). The

sentence is reviewed for reasonableness, and only a procedurally erroneous or

substantively unreasonable sentence is set aside. Id. at 46, 51.

As a matter of procedural due process, “a sentencing judge must explain a

sentence sufficiently to communicate that a reasoned decision has been made and

permit meaningful appellate review.” United States v. Rudd, 662 F.3d 1257, 1260

(9th Cir. 2011) (internal quotation marks omitted). Here, the district court more

than satisfied this constitutional duty, citing to eight mitigating factors that

reasonably support its decision to impose a below-Guidelines sentence. The

district court’s explanation was sufficient to “permit meaningful appellate review,”

and we are satisfied that the sentence imposed was not an abuse of discretion. See

id.

For the forgoing reasons, the judgment and sentence of the district court are

AFFIRMED.

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