* Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be

published and is not precedent except under the limited circumstances set forth in 5TH CIR. R.

47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-40344

UNITED STATES OF AMERICA

Plaintiff-Appellant

v.

J. GUADALUPE SAENZ 

Defendant-Appellee

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 7:03-CR-498-10

Before HIGGINBOTHAM, DAVIS, and BARKSDALE, Circuit Judges.

PER CURIAM:*

J. Guadalupe Saenz (“Saenz”) was convicted after a jury trial, under 21

U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846, for conspiracy to possess with intent

to distribute more than 1,000 kilograms of marijuana. In this appeal, Saenz

raises several constitutional, statutory, and procedural challenges to the

proceedings below. Finding his challenges without merit, we affirm. 

I.

On June 10, 2003, Saenz was indicted and a warrant was issued for his

United States Court of Appeals

Fifth Circuit

F I L E D

July 15, 2008

Charles R. Fulbruge III

Clerk
No. 07-40344

2

arrest. John Garza, of the Houston Police Department, and Special Agent John

Schwartz, ofthe Drug Enforcement Administration in Houston, went by Saenz’s

address on several occasions to try to locate and arrest Saenz. In late July or

early August of that year, however, a man who identified himself as associated

with Saenz contacted Darby Hodges, a case agent, and told him that Saenz was

in Mexico. Apprehension authority was then delegated to the United States

Marshal Service. On January 2005, a United States Marshal followed up on a

lead and drove by Saenz’s house. That next month, he returned to the house,

and was told by Saenz’s daughter that Saenz was at work, but that she did not

know where he worked. He left his phone number, and later received a call from

Saenz’s son who said Saenz was attending to a sick relative in Mexico. Deputy

United States Marshals continued to surveil Saenz’s house. Approximately two

years after his indictment Saenz was arrested and detained pending trial.

Saenz filed pretrial motions soon after his June 13, 2005 initial

appearance. He also filed a series of motions for continuances, all of which were

granted by the district court, on the record and in writing, pursuant to relevant

statutory justifications. Saenz’s pretrial motions were pending until October 30,

2006, when the district court denied the motions and scheduled the final pretrial

conference for November 6, 2006 and jury selection for November 7, 2006.

Before the final pretrial conference Saenz filed a motion to dismiss his

indictment for violating the Speedy Trial Act, 18 U.S.C. § 3161. On November

30, 2006, the district court denied this motion. On December 1, 2006, both sides

appeared and announced themselves ready to proceed to trial. Jury selection

occurred on January 22, 2007.

At trial, the government introduced a photospread, created on April 16,

2003 and used during pretrial identification procedures. The photospread
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contained six photographs on a single sheet of paper. The officer who created

the photospread created it in the same manner she had prepared many other

photospreads. That is, after receiving Saenz’s name, she looked up his driver’s

license photograph and determined that he was a male of Hispanic origin. She

then selected five photographs of men resembling the photograph of Saenz from

the driver’s license photograph database. She then placed the six photographs

on a single piece of paper, at random. In this case, Saenz’s photograph was

placed in the first, upper-left position on the photospread. At trial, four

witnesses identified Saenz, and three ofthose four provided similar descriptions

of him, that he had had a broken arm and a special type of car starter in his

vehicle.

After jury trial, Saenz was convicted of conspiracy to possess with intent

to distribute more than 1,000 kilograms of marijuana. Saenz was sentenced to

a term of 240 months imprisonment, to be followed by ten years supervised

release. The district court also imposed the mandatory special assessment of one

hundred dollars.

II.

We review the constitutional standards applied by the district court de

novo. United States v. Shaw, 920 F.2d 1225, 1228 (5th Cir. 1991). Additionally,

we review preserved constitutional challenges to a federal statute de novo.

United States v. Bredimus, 352 F.3d 200, 203 (5th Cir. 2003) (citing United

States v. Delgado-Nunez, 295 F.3d 494, 496 (5th Cir. 2002)).

District court rulings on the admissibility of evidence are generally

reviewed for abuse of discretion. United States v. Rogers, 126 F.3d 655, 657 (5th

Cir. 1997). When reviewing a district court ruling from a pretrial suppression
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4

hearing, this Court “give[s] credence to the credibility choices and findings of fact

of the district court unless clearly erroneous.” United States v. Shaw, 894 F.2d

689, 691 (5th Cir. 1990) (quoting United States v. Raymer, 876 F.2d 383, 386 (5th

Cir. 1989)) (internal quotation marks omitted).

We review a district court’s findings of fact regarding Sixth Amendment

claims of post-indictment delay for clear error and its legal conclusions de novo.

United States v. Bergfeld, 280 F.3d 486, 488 (5th Cir. 2002) (citing Robinson v.

Whitley, 2 F.3d 562, 568 (5th Cir. 1993)); United States v. Shaw, 920 F.2d 1225,

1228 (5th Cir. 1991) (citation omitted). We review the district court’s factual

findings under the Speedy Trial Act for clear error and its legal conclusions de

novo. United States v. Bieganowski, 313 F.3d 264, 281 (5th Cir. 2002) (citation

omitted). 

III.

Saenz argues, first, that the district court committed clear error when it

denied his motion to dismiss his indictment due to an alleged violation of his

Sixth Amendment right to a speedy trial. The Supreme Court has established

four factors to analyze a Sixth Amendment speedy trial claim: (1) the length of

the delay; (2) the reason for the delay; (3) the defendant’s diligence in asserting

his Sixth Amendment right; and (4) prejudice to the defendant resulting from

the delay. Doggett v. United States, 505 U.S. 647, 651 (1992); see also Bergfeld,

280 F.3d at 488 (citation omitted). The threshold inquiry is whether the delay

was long enough to trigger a “speedy trial” analysis. Bergfeld, 280 F.3d at 488

(citing Doggett, 505 U.S. at 651–52). A post-accusation delay of longer than one

year is sufficient. Id. (citing Doggett, 505 U.S. at 652 n.1). Next, the length of

the delay,the reason for the delay, and the defendant’s diligence in asserting his
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rights are all weighed againstthe prejudice to the defendant. Id. (citing Doggett,

505 U.S. at 656–57). If the first three factors weigh heavily in favor of the

Defendant, prejudice may be presumed and the defendant need not show actual

prejudice. Id.

Saenz argues that for two years after the indictment the government did

virtually nothing to try to arrest him. The district court recognized that two

years is a long enough delay to trigger an analysis of whether there is a Sixth

Amendment speedy trial violation. With regards to the reason for the delay, the

district court found that although the government did not devote as many

resources as possible to apprehending him, some of the fault for this delay can

be attributed to Saenz’s actions. Considering that there was no record that

Saenz asserted his right to a speedy trial, and Saenz presented no claim of

actual prejudice, the district court rejected Saenz’s motion. Saenz argues that

there was presumptive prejudice and the government did not carry its burden

of proving a lack of prejudice, and thus the district court erred as a matter of

law. We disagree. To create a presumption of prejudice, the length of the delay,

the reason for the delay, and the defendant’s diligence in asserting his right

must collectively weigh heavily in favor ofthe defendant. Upon our review of the

record, we are satisfied that the district court gave appropriate weight to the

three factors and did not err in finding they did not create a presumption of

prejudice. We thus conclude the district court did not err in rejecting Saenz’s

Sixth Amendment speedy-trial claim.

Saenz next challenges the constitutionality of the federal statutes under

which he was convicted and sentenced because his sentence was enhanced based

on a determination by the court that he had a prior conviction. He complains

that this finding, made by a judge rather than a jury and not alleged in the
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indictment, violates Apprendi v. New Jersey, 530 U.S. 466 (2000). This

argumentis foreclosed by Almendarez-Torres v. UnitedStates, 523 U.S. 224, 235,

247 (1998).

Saenz also argues the federal drug trafficking statute is facially

unconstitutional under Apprendi. This argument is foreclosed by United States

v. Slaughter, 238 F.3d 580, 581–82 (5th Cir. 2000), where this Court considered

and rejected Saenz’s argument.

Saenz argues, next, that in-court identification of him by several witnesses

was the direct result of a tainted photospread. The Due Process Clause forbids

the admission of unreliable identification testimony. Manson v. Brathwaite, 432

U.S. 98, 99, 114 (1977). Admissibility of identification evidence is determined

by (1) whether the identification procedure was “unduly suggestive” and (2)

whether the procedure posed “a very substantial likelihood of irreparable

misidentification.” Rogers, 126 F.3d at 658 (citation and internal quotation

marks omitted). Photo arrays may be suggestive if the suspect is the only person

closely resembling the description, or if the subjects of the photographs are

“grossly dissimilar in appearance to the suspect.” United States v. Wade, 388

U.S. 218, 233 (1967). 

Saenz argues that the photospread was unduly suggestive because his

picture was substantially different from the five others provided and because he

was placed in the first, upper-left position. The district court determined that

the photographs were placed in the photospread at random, were all taken from

similar driver’s license records, were viewed at the same time on one piece of

paper, and appeared to be of very similar Hispanic males. As such, the district

court concluded that there was insufficient evidence to conclude that the
No. 07-40344

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photospread was unduly suggestive. Reviewing the district court’s findings of

fact for clear error, and the decision to admit evidence for abuse of discretion, we

are satisfied the district court did not err when it denied Saenz’s motion to

suppress the identification.

Saenz argues, finally, that the district court erred in denying his motion

to dismiss his indictment under the Speedy Trial Act. The Speedy Trial Act,

“which is designed to protect a criminal defendant’s constitutional right to a

speedy trial and to serve the public interest in bringing prompt criminal

proceedings, requires that a defendant’s trial commence within seventy days

from his indictment or initial appearance, whichever is later.” United States v

Stevens, 489 F.3d 647, 652 (5th Cir. 2007) (citing, inter alia, 18 U.S.C. §

3161(c)(1)). Certain delays are excluded in calculating the seventy day period,

including delays “resulting from any pretrial motion, from the filing of the

motion through the conclusion of the hearing on, or other prompt disposition of,

such motion.” 18 U.S.C. § 3161(h)(1)(F); see also Henderson v. United States, 476

U.S. 321, 329–30 (1986); United States v. Green, 508 F.3d 195, 200 (5th Cir.

2007). “If more than seventy non-excludable days pass between the indictment

and the trial, the indictment shall be dismissed on motion of the defendant.”

United States v. Johnson, 29 F.3d 940, 942 (5th Cir. 1994) (internal quotation

omitted).

Saenz argues his indictment should have been dismissed because his trial

did not commence within seventy days of his initial appearance, on June 13,

2005. The district court concluded that there were only nineteen non-excludable

days, well short of the seventy day limit. Reviewing the district court’s findings

of factfor clear error and its applications of law de novo, we are satisfied thatthe
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district court did not err. The pretrial motions, filed by Saenz and granted

pursuant to statutory justifications, served to toll the clock. The district court,

thus, correctly denied Saenz’s motion to dismiss his indictment under the Speedy

Trial Act.

IV.

For the foregoing reasons, Saenz’s conviction is AFFIRMED.