Opinion
21-30134
11-10-2022
UNITED STATES OF AMERICA, Plaintiff-Appellee, v. OSCAR ADRIAN MARQUEZ, Defendant-Appellant.
NOT FOR PUBLICATION
Argued and Submitted October 19, 2022 Portland, Oregon
Appeal from the United States District Court for the District of Oregon Michael W. Mosman, District Judge, Presiding D.C. Nos. 3:19-cr-00356-MO-1 3:19-cr-00356-MO
Before: BADE and SANCHEZ, Circuit Judges, and LEFKOW, [**] District Judge.
MEMORANDUM [*]
Oscar Adrian Marquez appeals the district court's judgment of conviction following a jury verdict. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
Marquez's request to consider his supplemental pro se brief is denied. Dkt. No. 40; see Jones v. Barnes, 463 U.S. 745, 752-53 (1983).
1. "We review de novo a district court's decision to dismiss on Speedy Trial Act grounds and its findings of fact for clear error." United States v. Olsen, 21 F.4th 1036, 1040 (9th Cir. 2022) (per curiam). "A district court's ends of justice determination will be reversed only if it is clearly erroneous." Id.
Marquez argues that the district court violated the Speedy Trial Act when it continued the trial and excluded time from January 21 to March 4, 2020, and September 22 to November 10, 2020. The district court excluded the former time period after finding that both sides required additional time to prepare for trial due to a superseding indictment that added two victims, four charges, and involved "more witnesses than perhaps was once contemplated." The district court excluded the latter time period due to the unavailability of a key government witness and under Standing Order 2020-9, which required district courts in the District of Oregon to continue all trials scheduled to commence before June 1, 2020 due to the COVID-19 pandemic. There was no clear error in the district court's determination that the ends of justice were served by these continuances. See 18 U.S.C. § 3161(h)(7); United States v. Dota, 33 F.3d 1179, 1182-83 (9th Cir. 1994).
Because we find no clear error in excluding these two time periods, we need not reach the question whether the trial court erred in excluding the time period from October 11 to October 29, 2019.
2. "We review the district court's denial of the motion to dismiss on Sixth Amendment grounds de novo, but review findings of fact for clear error." United States v. King, 483 F.3d 969, 975 n.6 (9th Cir. 2007). To determine whether Marquez's Sixth Amendment right to a speedy trial was violated, we consider the "[l]ength of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant." Barker v. Wingo, 407 U.S. 514, 530 (1972). The "focal inquiry" is the reason for the delay. United States v. Sears, Roebuck &Co., 877 F.2d 734, 739 (9th Cir. 1989). "[A] trial which complies with the [Speedy Trial] Act raises a strong presumption of compliance with the Constitution." United States v. Baker, 63 F.3d 1478, 1497 (9th Cir. 1995).
Although Marquez remained in pretrial custody for approximately 14 months, a presumptively prejudicial delay, the balance of factors weighs against his position. Most of the delay was attributable to valid reasons, including the onset of the global COVID-19 pandemic and the district court's response to the pandemic under Standing Order 2020-9, appointment of new defense counsel, the unavailability of an important government witness, new discovery and evidence, and a third continuance that Marquez does not challenge. Furthermore, at least some of the delay occurred due to Marquez's request for a continuance and his own behavior, which caused one of his court-appointed attorneys to withdraw before trial. See United States v. Sutcliffe, 505 F.3d 944, 957 (9th Cir. 2007) (finding third Barker factor weighed against the defendant because he "sabotage[d] his relationship with each appointed attorney, necessitating the delays"); United States v. Tanh Huu Lam, 251 F.3d 852, 859 (9th Cir. 2001) ("If . . . the defendant is responsible for the delay in his trial, then he carries a heavy burden of demonstrating actual prejudice ...."). We find that the district court did not violate Marquez's constitutional right to a speedy trial. 3. "[W]e have not yet clarified whether denial of a Faretta request is reviewed de novo or for abuse of discretion." United States v. Kaczynski, 239 F.3d 1108, 1116 (9th Cir. 2001); see Faretta v. California, 422 U.S. 806, 835 (1975). We conclude that Marquez's claim fails under either standard of review. A waiver of counsel is considered "knowing and intelligent" only if the defendant is made aware of: "(1) the nature of the charges against him; (2) the possible penalties; and (3) the dangers and disadvantages of self-representation." United States v. Farhad, 190 F.3d 1097, 1099 (9th Cir. 1999) (per curiam). We must evaluate this question with caution, indulging "every reasonable presumption against waiver." United States v. Arlt, 41 F.3d 516, 520 (9th Cir. 1994) (citation omitted).
After the district court adequately informed Marquez of the risks of selfrepresentation, Marquez responded that he did not understand. This inquiry established that the district court could not allow Marquez to represent himself because his waiver was not knowing and intelligent. See United States v. Erskine, 355 F.3d 1161, 1168-69, 1171 (9th Cir. 2004) (concluding the defendant "did not intelligently and voluntarily waive" his right to counsel because he did not understand the possible penalties he faced, even though he understood the dangers of self-representation).
Marquez has waived any challenge to the adequacy of the district court's advice on the risks of self-representation by failing to raise it in his briefs. See Officers for Justice v. Civil Serv. Comm'n of City & Cnty. of S.F., 979 F.2d 721, 726 (9th Cir. 1992).
4. The district court's interpretation of the United States Sentencing Guidelines (U.S.S.G.) and decisions regarding grouping offenses are reviewed de novo. United States v. Scheele, 231 F.3d 492, 497 (9th Cir. 2000); United States v. Melchor-Zaragoza, 351 F.3d 925, 927 (9th Cir. 2003). "[F]actual findings in the sentencing phase are reviewed for clear error, but must be supported by a preponderance of the evidence." Scheele, 231 F.3d at 497. Marquez argues that the district court erred at sentencing when it applied an obstruction of justice enhancement, failed to group Count 1 with Counts 2 and 3, and applied a statutory sentencing enhancement under 18 U.S.C. § 2265A.
The district court did not clearly err in finding that Marquez "attempt[ed] to intimidate or otherwise influence" a witness based on evidence he called a witness from jail and discussed her cooperation with investigators. See U.S.S.G. § 3C1.1 app. n.4. That there may be other potential reasons why the witness was reluctant to testify after the phone call does not render the district court's obstruction of justice finding clearly erroneous. See United States v. Perez, 962 F.3d 420, 451-52 (9th Cir. 2020).
Nor did the district court err in its grouping determinations. Even if the counts involve only one primary victim, a question we need not reach, the grouping determination would still be correct because Count 1 does not involve the same composite harms as Counts 2 and 3. U.S.S.G. § 3D1.2(b), app. n.4; United States v. Espinoza-Baza, 647 F.3d 1182, 1194 (9th Cir. 2011).
However, the district court erred when it applied 18 U.S.C. § 2265A, the repeat offender penalty enhancement, which doubled each count's statutory maximum sentence from 5 years' imprisonment to 10 years. The district court further erred when it applied U.S.S.G. § 5G1.1(a), which applies to sentencing on a single count of conviction, because Marquez was sentenced on multiple counts. See U.S.S.G. § 5G1.2. The district court sentenced Marquez to consecutive 60-month sentences on Counts 1 and 2 each and concurrent 42-month sentences on the remaining three counts, for a total of 120 months.
Although the Ninth Circuit has not determined whether the categorical or conduct-based approach applies to 18 U.S.C. § 2265A, the parties agree that the enhancement here was in error under either approach.
For preserved errors that are not of constitutional magnitude, this Court "must reverse unless there is a 'fair assurance' of harmlessness or, stated otherwise, unless it is more probable than not that the error did not materially affect the verdict." United States v. Morales, 108 F.3d 1031, 1040 (9th Cir. 1997) (en banc) (citation omitted); see also United States v. Beng-Salazar, 452 F.3d 1088, 1096 (9th Cir. 2006).
It is more probable than not that the errors did not materially affect the sentence imposed here. In sentencing Marquez to 120 months, which the district court believed was the statutory maximum, the district court considered the nature and circumstances of the offenses, Marquez's history and circumstances, and relevant evidence regarding the impact of his conduct on the victims. The court determined that a sentence of 120 months was appropriate after finding Marquez "unusually manipulative," "unusually unhinged," "unusually dangerous," and "unusually obsessive." The court also found that Marquez's "dangerousness and manipulativeness" occurred over "an unusually lengthy span of [time]." It concluded that the sentence was warranted after "careful comparison of this case to other cases" and "tak[ing] into account . . . what I think are unusual factors in this case, and my own opportunity to evaluate the defendant's dangerousness and criminality."
Given the district court's express findings on the record and its disinclination to sentence below a term of 120 months, we conclude that its sentencing errors were harmless. The district court made clear from its findings on the record that remanding would only result in the same or a longer sentence. See United States v. Munoz-Camarena, 631 F.3d 1028, 1030 n.5 (9th Cir. 2011); United States v. Ali, 620 F.3d 1062, 1074 (9th Cir. 2010).
AFFIRMED.
[*] This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
[**] The Honorable Joan H. Lefkow, United States District Judge for the Northern District of Illinois, sitting by designation.