* Pursuant to 5TH CIR. R. 47.5, the Court has determ ined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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 c onvicted 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 ClerkNo. 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 himselfas 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 knowwhere 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 tosurveil 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 statutoryjustifications. Saenz’s pretrial motions were pending until October 30, 2006, when the district court denied the motions and scheduled thefinal pretrial conference for November 6, 2006 and jury selec tion 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 pretri al identification procedures. The photospreadNo. 07-40344

3 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 ofmen resembling the photograph ofSaenz 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
. U nited Statesv. 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 U ni ted 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 ofdiscretion. U nited Statesv. Rogers, 126 F.3d 655, 657 (5th Cir. 1997). When reviewing a district court ruling from a pretrial suppressionNo. 07-40344

4 hearing, this Court “give[s] credence to the credibility choices and findings of fact of the district court unless clearly erroneous.” U nited States v. Shaw , 894 F.2d 689, 691 (5th Cir. 1990) (quoting United Statesv. 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
. U nited 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 dismi ss 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. D oggett 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 hisNo. 07-40344

5 rights areall weighed against the prejudice tothe defendant. I d. (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 showactual 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 c reate 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 hewasconvicted and sentenced because his sentencewas 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 theNo. 07-40344

6 indictment, violates Apprendi v. New Jersey, 530 U.S. 466 (2000). This argument isforeclosed by Almendarez-Torresv. United States, 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 U nited 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 ofa tainted photospread. The Due Process Clause forbids theadmission ofunreliable identification testimony. Manson v. Brathwaite , 432 U.S. 98, 99, 114 (1977). Admissibility of identification evidence is determined by (1) whether the identification pro cedure 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 marksomitted). 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.” U nited 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 ofvery similar Hispanic males. As such, the district court concluded that there was insufficient evidence to conclude that theNo. 07-40344

7 photospread was unduly suggestive. Reviewing the district court’s findings of fact for clear error, and the decision to admit evidence for abuse ofdiscretion, we are satisfied the district court di d 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, i nter 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 ofthe hearing on, or other prompt disposition of, such motion.” 18 U.S.C. § 3161(h)(1)(F); s eealso Henderson v. United States, 476 U.S. 321, 329

–30 (1986); U nited 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 indi ctment shall be dismissed on motion of the defendant.” United State

s 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 withi n seventy days of his initial appearance, on June 13, 2005. The district court concluded that there were only nineteen non-excludable days, well short ofthe seventy day limit. Reviewing the district court’s findings offact for clear error and its applications oflawde novo, we are satisfied that theNo. 07-40344

8 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.