FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

No. 07-50190 Plaintiff-Appellee,

D.C. No.

v.  CR-03-01017-NAJ-1

ENGELBERTO SANTANA,

OPINION Defendant-Appellant. 

Appeal from the United States District Court

for the Southern District of California

Napoleon A. Jones, District Judge, Presiding

Argued and Submitted

March 4, 2008—Pasadena, California

Filed May 27, 2008

Before: John R. Gibson,* Diarmuid F. O’Scannlain, and

Susan P. Graber, Circuit Judges.

Opinion by Judge Gibson

*The Honorable John R. Gibson, Senior United States Circuit Judge for

the Eighth Circuit, sitting by designation. 

6003
COUNSEL

Zandra L. Lopez, Federal Defenders of San Diego, California,

for the defendant-appellant. 

Randy K. Jones and David P. Curnow, Assistant United States

Attorneys, San Diego, California, for the plaintiff-appellee.

UNITED STATES v. SANTANA 6005
OPINION

GIBSON, Senior Circuit Judge: 

Engelberto Santana appeals from the district court’s decision to revoke his supervised release and impose a new term

of eight months’ imprisonment and twenty-five months of

supervised release. He argues that his right to prompt disposition of the government’s petition to revoke his supervised

release was violated by the government’s unjustified delays in

executing the warrant for his arrest and in bringing him before

a judge for his initial appearance. He also contends that the

procedure for revocation of supervised release is unconstitutional in light of the Supreme Court’s decision in Cunningham v. California, 127 S. Ct. 856 (2007). We affirm. 

Santana was serving a three-year term of supervised release

when he was arrested on May 10, 2006, on charges of willful

cruelty to a child and obstruction of law enforcement. He was

taken into custody by the State of California on those charges

and eventually was convicted and sentenced to three days’ jail

time and four years of probation. While he was in state custody, a federal petition for revocation of supervised release

was filed, based on the state conviction and other alleged violations of the terms of his release. On August 10, 2006, the

United States District Court for the Southern District of California issued a warrant against Santana. On September 25,

2006, Santana was due to be released from state custody, but

he was detained by the State because of the pending federal

warrant. The federal authorities did not execute that warrant

and bring Santana into federal custody until October 20, 2006,

and even then he apparently was kept in the Central District

of California until January 23, 2007, when he was brought to

the Southern District of California for his initial appearance.

After that, his proceedings progressed normally, with his preliminary hearing being held on February 20, 2007. He moved

to dismiss for unreasonable delay in executing the warrant

and unreasonable delay between the issuance of the warrant

6006 UNITED STATES v. SANTANA
and the initial appearance. He also contended that supervised

release revocation proceedings generally are unconstitutional.

On the claim for failure to provide a prompt hearing, the

district court considered the relevant time of delay to be 121

days, counting from September 25, 2006, when Santana

would have been released from state custody if not for the

pending federal warrant, to January 23, 2007, when Santana

had his initial appearance. Even though the Speedy Trial Clause1

does not apply to revocation cases, the district court analogized to the timeliness analysis used in Speedy Trial Clause

cases, which balance the length of delay, the reason for the

delay, the promptness of the defendant’s assertion of his right

to a timely hearing, and the prejudice to the defendant. See

Barker v. Wingo, 407 U.S. 514, 530 (1972). The district court

concluded that the delay of approximately four months before

the initial hearing was cause for concern and that the government offered no legitimate reason for the delay. On the other

hand, Santana did not assert his right until after the initial

appearance had taken place, and Santana was not able to point

to any concrete prejudice he had suffered as a result of the

delay. Accordingly, the district court concluded that the delay

in obtaining a hearing did not compel dismissal. 

The district court also concluded that the twenty-five day

delay in executing the warrant and bringing Santana into federal custody did not require dismissal and that the procedure

for revocation of supervised release was not unconstitutional.

The court therefore denied Santana’s motion to dismiss. 

On April 16, 2007, Santana received his final revocation

hearing. The court revoked his supervised release and

imposed a new sentence of eight months’ imprisonment and

twenty-five months of supervised release. 

1Under the Sixth Amendment, “In all criminal prosecutions, the accused

shall enjoy the right to a speedy and public trial . . . .” 

UNITED STATES v. SANTANA 6007
I.

Santana’s right to a prompt hearing on the petition for revocation of supervised release arises under the Due Process

Clause of the Fifth Amendment, as applied to parole and probation revocation proceedings2

 in Morrissey v. Brewer, 408

U.S. 471, 485, 489 (1972), and Gagnon v. Scarpelli, 411 U.S.

778, 782 (1973). Morrissey stated that a parolee was entitled

to a preliminary hearing, which should be held “as promptly

as convenient after arrest,” 408 U.S. at 485, and to a final

revocation proceeding to be held “within a reasonable time

after the parolee is taken into custody,” id. at 488. 

[1] The requirements of Morrissey were formalized in Federal Rule of Criminal Procedure 32.1. See Fed. R. Crim. P.

32.1 advisory committee’s notes (1979). Rule 32.1 prescribes

three kinds of hearings: initial appearance, Rule 32.1(a); preliminary hearing, Rule 32.1(b)(1); and revocation hearing,

Rule 32.1(b)(2). Each hearing has a timeliness requirement in

the rule. See Fed. R. Crim. P. 32.1(b)(1)(A) (preliminary hearing “must [be] promptly conduct[ed]”), (b)(2) (final hearing

to be held “within a reasonable time”). For the initial appearance, “A person held in custody for violating probation or

supervised release must be taken without unnecessary delay

before a magistrate judge.” Fed. R. Crim. P. 32.1(a)(1); see

also 18 U.S.C. § 3606 (“[U]pon arrest, [a person alleged to

have violated terms of supervised release] shall be taken without unnecessary delay before the court having jurisdiction

over him.”). 

We review de novo the district court’s ruling on whether

Santana’s due process rights as incorporated by Rule 32.1

have been violated. See United States v. Havier, 155 F.3d

1090, 1092 (9th Cir. 1998). 

2We treat proceedings for revocation of probation, parole, and supervised release as equivalents for due process purposes, although these different procedures are governed by different statutes. See United States v.

Hall, 419 F.3d 980, 985 n.4 (9th Cir. 2005). 

6008 UNITED STATES v. SANTANA
In his motion to dismiss, Santana relied on the delay of the

initial appearance as the crucial event, and therefore we will

consider the delay between the date he would have been

released from state custody3 (September 25, 2006) and the

date of the initial appearance (January 23, 2007), a delay of

121 days, or about four months. 

[2] Although Santana argues that no showing of prejudice

is necessary in order to warrant dismissal, our cases considering due process claims for revocation proceedings have held

that relief is not called for unless there was both unreasonable

delay and prejudice. E.g., Benny v. United States Parole

Comm’n, 295 F.3d 977, 986 (9th Cir. 2002); Camacho v.

White, 918 F.2d 74, 79 (9th Cir. 1990); Vargas v. United

States Parole Comm’n, 865 F.2d 191, 194 (9th Cir. 1988);

Hopper v. United States Parole Comm’n, 702 F.2d 842, 845

(9th Cir. 1983); United States v. Wickham, 618 F.2d 1307,

1311 (9th Cir. 1979). “Reasonableness” is itself a sort of balancing judgment in which the length of delay is considered in

connection with the reasons for the delay. E.g., Camacho, 918

F.2d at 79; United States v. Berry, 814 F.2d 1406, 1410 (9th

Cir. 1987); Wickham, 618 F.2d at 1309-11. 

[3] Santana cites a Speedy Trial Clause case, United States

v. Mendoza, No. 06-50447, ___ F.3d ___, 2008 WL 1970339

(9th Cir. May 8, 2008), in which we recently held that no

showing of actual prejudice was necessary to establish a violation of the defendant’s rights by an eight-year delay

between a defendant’s indictment and arrest, during which the

government failed to take steps to inform the defendant of his

3The government argues that Santana was not in federal custody until

the federal warrant was executed on October 20, 2006, and that therefore

we should not count the previous month as part of the relevant delay. It

is undisputed that Santana was held in state custody from September 25

to October 20 because of the federal warrant; it is fairer to charge that time

to the government’s account than to Santana’s. See United States v. Wickham, 618 F.2d 1307, 1309 (9th Cir. 1979) (looking to substance rather

than form in deciding when clock starts running for prompt hearing). 

UNITED STATES v. SANTANA 6009
indictment. In the context of revocation of supervised release,

Speedy Trial Clause authority is applicable only by analogy,

but in the past we have found that analogy helpful, though we

have not probed how far the analogy goes. See Camacho, 918

F.2d at 79; Wickham, 618 F.2d at 1311. But see United States

v. Bischel, 61 F.3d 1429, 1436 (9th Cir. 1995) (declining to

apply Speedy Trial precedent in Fifth Amendment context). 

[4] Barker v. Wingo, 407 U.S. 514, 530 (1972), held that

analysis under the Speedy Trial clause requires balancing the

factors of length of delay, reason for the delay, the defendant’s timely protest of delay, and prejudice to the defendant.

See also United States v. Gregory, 322 F.3d 1157, 1161 (9th

Cir. 2003). Barker identified three types of actual prejudice:

oppressive pre-trial incarceration, unnecessary anxiety of the

accused, and impairment of the accused’s ability to mount a

defense. 407 U.S. at 532. The longer the delay, the less the

showing of prejudice required, until an extremely lengthy

delay attributable to government negligence creates a “strong

presumption that [the defendant] suffered prejudice,” which

the government has the burden to rebut. Mendoza, 2008 WL

1970339, at *5. 

[5] We hasten to say that a reasonable time for proceeding

to a full-scale criminal trial is not the same as a reasonable

time for revocation proceedings, and therefore Speedy Trial

Clause authority should not be applied in revocation proceedings as if it were directly controlling. But even pursuing the

Speedy Trial analogy, we must underline the huge disparity

between the four-month delay in this case versus the eightyear delay that led to dismissal in Mendoza. Doggett v. United

States, 505 U.S. 647, 652 n.1 (1992), stated that the lower

courts generally have agreed that post-accusation delay starts

to become serious enough to trigger Speedy Trial analysis as

it approaches one year. In Gregory, we observed that according to our cases, an eight-month delay is approximately the

minimum delay that would make a Barker analysis necessary.

322 F.3d at 1162 n.3. By this measure, the four-month delay

6010 UNITED STATES v. SANTANA
in Santana’s case would not even trigger ordinary Speedy

Trial analysis, whereas Santana wants us to apply the noprejudice analysis reserved for cases of extreme delay, which

we conclude would be quite inappropriate. 

[6] The Mendoza analysis being inappropriate, we apply

our ordinary test in supervised release revocation cases and

search for actual prejudice. See page 6009, supra. At oral

argument, Santana’s counsel admitted that he received full

credit against his sentence for the time he spent in prerevocation incarceration. Santana has not identified any other

prejudice, aside from the anxiety of awaiting his revocation

proceedings. In this case, even though the delay appears

attributable to the government’s neglect, in light of the lack

of actual prejudice, we conclude that the four-month delay did

not violate Santana’s due process rights or his rights under

Rule 32.1.

II.

[7] Relying on United States v. Hill, 719 F.2d 1402, 1405

(9th Cir. 1983), Santana contends that the petition against him

should have been dismissed because of the government’s

delay in executing the warrant. In Hill, we held that under 18

U.S.C. §§ 3651 and 3653 (repealed) (new provision at 18

U.S.C. § 3565(c)), jurisdiction to revoke probation expired

five years after the beginning of the probation period;

although issuance of a warrant could toll the period, Hill held

that the tolling would not continue if the warrant was not

served within a reasonable time. In that context, Hill stated

that “a warrant for arrest based on a probation or parole violation should be executed within a reasonable time after issuance.” Id. at 1405.

[8] The holding in Hill does not govern this case because

the statute under which it was decided has been repealed and,

even if it were still in effect, would not apply in a revocation

of supervised release case. Moreover, in Hill, there was an

UNITED STATES v. SANTANA 6011
utterly unexcused two-and-a-half year delay between issuance

of the warrant and execution, during which time the five-year

statutory period for jurisdiction had expired. Id. at 1404. Hill

was haled into revocation proceedings for a violation that had

actually happened seven years earlier, when his entire term of

probation was only three years. In contrast, in this case there

was only a twenty-five day delay, and the warrant was executed within Santana’s original term of supervised release.

The delay in executing the warrant did not call for dismissal.

III.

Finally, Santana contends that the procedures by which his

supervised release was revoked are unconstitutional under the

principle of Apprendi v. New Jersey, 530 U.S. 466, 490

(2000)—that the Sixth Amendment requires any fact (other

than the fact of a prior conviction) that increases the penalty

for a crime above the statutory maximum to be found by a

jury and proved beyond a reasonable doubt. 

[9] This court rejected a constitutional challenge to the

imposition and revocation of supervised release under 18

U.S.C. § 3583 in United States v. Huerta-Pimental, 445 F.3d

1220 (9th Cir.), cert. denied, 127 S. Ct. 545 (2006). HuertaPimental made two points: 

(1) Imposition of supervised release as part of the original

sentence does not violate Apprendi. Imposing a term of supervised release is authorized as part of sentences by 18 U.S.C.

§ 3583(a), and therefore imposition of a term of supervised

release does not exceed the statutory maximum, even if the

statute of conviction itself does not mention supervised

release. Id. at 1222-23. 

(2) Revocation of supervised release does not run afoul of

Apprendi because revocation of supervised release is not governed by the Sixth Amendment. There is no Sixth Amendment right to jury trial for post-conviction determinations

6012 UNITED STATES v. SANTANA
such as the finding of whether a releasee violated the terms

of his release. Id. at 1225. 

Santana argues that the Supreme Court’s decision in Cunningham v. California, 127 S. Ct. 856 (2007), calls into question the constitutionality of the revocation procedures because

revocation depends on a judge’s finding that the releasee has

violated the terms of his release. 18 U.S.C. § 3583(e)(3). Cunningham concluded that the California determinate sentencing

law set the maximum sentence at the middle of three ranges

prescribed by the statute unless the judge found facts authorizing a sentence in the top range; since Cunningham had

received a top-range sentence on account of judge-found

facts, his sentencing violated the Sixth Amendment. 127

S. Ct. at 870-71. 

[10] As Huerta-Pimental held, 445 F.3d at 1225, revocation of supervised release is not governed by the Sixth

Amendment. Cunningham interprets the Sixth Amendment,

and therefore it is not relevant to revocation proceedings.

Nothing in Cunningham calls into question the continuing

authority of Huerta-Pimental. Cunningham does not affect the

validity of § 3583’s procedure for revocation of supervised

release. 

The judgment of the district court is AFFIRMED. 

UNITED STATES v. SANTANA 6013