FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

 v. 

ARMANDO OROZCO-BARRON, 

AKA Armando Orozco-Baron, 

Defendant-Appellant.

No. 21-50298 

D.C. No. 

3:20-cr-02277-

LAB-1 

OPINION

Appeal from the United States District Court

for the Southern District of California

Larry A. Burns, District Judge, Presiding

Argued and Submitted December 8, 2022

Pasadena, California

Filed May 22, 2023

Before: Carlos T. Bea, Sandra S. Ikuta, and Morgan 

Christen, Circuit Judges.

Opinion by Judge Ikuta;

Partial Concurrence and Partial Dissent by Judge Christen
2 UNITED STATES V. OROZCO-BARRON

SUMMARY*

Criminal Law

Affirming Armando Orozco-Barron’s conviction for 

attempted illegal reentry after deportation, the panel held 

that the district court, in denying Orozco-Barron’s motion to 

dismiss his information for violations of the Speedy Trial 

Act, did not clearly err in excluding periods of delay 

resulting from ends of justice continuances granted due to 

events caused by the global COVID-19 pandemic. 

The focus of the parties’ dispute was on whether the 

period from August 14, 2020 (the day after the information 

was filed) until December 1, 2020 (a total of 110 days) was 

excluded from computing the time within which the trial had 

to commence under the Speedy Trial Act. 

The panel concluded that the district court complied with 

the applicable statutory requirements. First, the district 

court’s finding that the ends of justice were best served by 

granting continuances during the period from August 14, 

2020, until December 1, 2020, was timely because the 

district court put this finding on the record during the July 

12, 2021, hearing on the defendant’s motion to dismiss under 

18 U.S.C. § 3162(a)(2). The continuances were also 

specifically limited in time to successive 30-day 

periods. Next, the district court made the requisite findings 

under § 3161(h)(7)(A), consistent with United States v. 

Olsen, 21 F.4th 1036 (9th Cir. 2022) (per curiam), by relying 

* This summary constitutes no part of the opinion of the court. It has 

been prepared by court staff for the convenience of the reader.
UNITED STATES V. OROZCO-BARRON 3

on the Southern District of California chief judge orders in 

effect during the time period at issue. In addition to relying 

on the chief judge orders, the district court made its own 

findings on the record. The district court also considered the 

relevant statutory and non-statutory factors when deciding to 

grant a continuance. The panel wrote that the district court’s 

findings—both the district court’s statements at the hearing 

and the chief judge orders incorporated by reference—are 

consistent with Olsen’s reasoning that a court could 

appropriately base its decision to grant continuances on the 

fact that “a global pandemic that has claimed more than half 

a million lives in this country, and nearly 60,000 in 

California alone, falls within such unique circumstances to 

permit a court to temporarily suspend jury trials in the 

interest of public health.” In light of this court’s ruling in 

Olsen, and the continuation of the global pandemic, the 

panel concluded that neither the district court’s factual 

findings nor its ultimate ends of justice determination were 

clearly erroneous.

Citing United States v. Carrillo-Lopez, No. 21-10233, __ 

F.4th __ (9th Cir. 2023), the panel rejected Orozco-Barron’s 

argument that the district court erred by not dismissing his 

information on the ground that 8 U.S.C. § 1326 violates the 

Equal Protection Clause.

Judge Christen concurred in part and dissented in 

part. She concurred in the majority’s conclusion that § 1326 

does not violate the Equal Protection Clause, but wrote that 

the majority errs by affirming the district court’s denial of 

Orozco-Barron's motion to dismiss for violation of the 

Speedy Trial Act (STA). She wrote that the majority relies 

on Olsen, a case that arose when a series of orders suspended 

all jury trials in the Central District of California due to the 

COVID-19 pandemic, but that, by contrast, most of Orozco-
4 UNITED STATES V. OROZCO-BARRON

Barron’s pre-trial detention occurred after the Southern 

District of California had resumed conducting jury trials on 

a limited basis. As such, the STA and Supreme Court 

precedent interpreting it required the district court to make 

case-specific findings before excluding time on the STA 

clock, which the district court did not do. 

COUNSEL

Katherine M. Hurrelbrink (argued), Assistant Federal Public 

Defender, Federal Public Defenders’ Office, San Diego, 

California, for Defendant-Appellant. 

Mark R. Rehe (argued), Michael A. Deshong, and Vivian 

Sapthavee, Assistant United States Attorneys; Daniel E. 

Zipp, Assistant United States Attorney, Appellate Section 

Chief; Randy S. Grossman, United States Attorney; Office 

of the United States Attorney; San Diego, California; for 

Plaintiff-Appellee.
UNITED STATES V. OROZCO-BARRON 5

OPINION

IKUTA, Circuit Judge:

Armando Orozco-Barron appeals his conviction for 

attempted illegal reentry after deportation in violation of 8 

U.S.C. § 1326. He contends that the district court erred in 

denying his motion to dismiss his information for violations 

of the Speedy Trial Act. We conclude that the district court 

did not clearly err in excluding periods of delay resulting 

from ends of justice continuances granted due to events 

caused by the global COVID-19 pandemic, and therefore we 

affirm.

I

The Speedy Trial Act, 18 U.S.C. § 3161, implements the 

Sixth Amendment’s guarantee of a speedy and public trial to 

criminal defendants. See Furlow v. United States, 644 F.2d 

764, 769 (9th Cir. 1981) (per curiam). Under the Speedy 

Trial Act, “the trial of a defendant charged in an information 

or indictment with the commission of an offense shall 

commence within seventy days from the filing date (and 

making public) of the information or indictment.” 18 U.S.C. 

§ 3161(c)(1). This timeline may be extended if a court 

grants a motion to exclude certain periods of delay listed in 

18 U.S.C. § 3161(h). “If a defendant is not brought to trial 

within the time limit required by section 3161(c) as extended 

by section 3161(h), the information or indictment shall be 

dismissed on motion of the defendant.” Id. § 3162(a)(2).

Among other excluded periods, § 3161(h)(7)(A) 

excludes “[a]ny period of delay resulting from a continuance 

granted by any judge . . . if the judge granted such 

continuance on the basis of his findings that the ends of 
6 UNITED STATES V. OROZCO-BARRON

justice served by taking such action outweigh the best 

interest of the public and the defendant in a speedy trial.” A 

continuance granted on this basis is sometimes referred to as 

an “ends-of-justice continuance.” Zedner v. United States, 

547 U.S. 489, 500 (2006).

A district court must comply with certain requirements 

when granting an ends of justice continuance. First, any 

period of delay resulting from the continuance must be 

“specifically limited in time.” United States v. Lloyd, 125 

F.3d 1263, 1268 (9th Cir. 1997) (citation omitted). Second, 

the court must “set[] forth, in the record of the case, either 

orally or in writing, its reasons for finding that the ends of 

justice” outweigh the public’s and defendant’s interest in a 

speedy trial. 18 U.S.C. § 3161(h)(7)(A). Although “the Act 

is ambiguous on precisely when those findings must be se[t] 

forth, in the record of the case,” the Supreme Court has ruled 

that the district court must put its ends of justice findings on 

the record “by the time a district court rules on a defendant’s 

motion to dismiss under § 3162(a)(2).” Zedner, 547 U.S. at 

506–07 (alteration in original). Third, the court “must 

evaluate, ‘among others,’ several enumerated factors” in 

deciding whether to grant an ends of justice continuance. 

United States v. Olsen, 21 F.4th 1036, 1041 (9th Cir.) (per 

curiam) (citing 18 U.S.C. § 3161(h)(7)(B)(i)–(iv)), cert. 

denied, 142 S. Ct. 2716 (2022).1 “[D]istrict courts have 

1 18 U.S.C. § 3161(h)(7)(B) provides:

(B) The factors, among others, which a judge shall 

consider in determining whether to grant a 

continuance under subparagraph (A) of this paragraph 

in any case are as follows:

(i) Whether the failure to grant such a continuance in 

the proceeding would be likely to make a continuation 
UNITED STATES V. OROZCO-BARRON 7

broad discretion to consider any factors based upon the 

specific facts of each case,” id. at 1046, and a court is not 

required to address every factor listed in the statute “as long 

as its reasoning is sufficient to justify excluding the 

continuance from the Act’s seventy-day limit.” United 

States v. McCarns, 900 F.3d 1141, 1144–45 (9th Cir. 2018) 

(citations omitted). District courts may also need “to address 

relevant non-statutory considerations.” Olsen, 21 F.4th at 

1046.

of such proceeding impossible, or result in a 

miscarriage of justice.

(ii) Whether the case is so unusual or so complex, due 

to the number of defendants, the nature of the 

prosecution, or the existence of novel questions of fact 

or law, that it is unreasonable to expect adequate 

preparation for pretrial proceedings or for the trial 

itself within the time limits established by this section.

(iii) Whether, in a case in which arrest precedes 

indictment, delay in the filing of the indictment is 

caused because the arrest occurs at a time such that it 

is unreasonable to expect return and filing of the 

indictment within the period specified in section 

3161(b), or because the facts upon which the grand 

jury must base its determination are unusual or 

complex.

(iv) Whether the failure to grant such a continuance in 

a case which, taken as a whole, is not so unusual or so 

complex as to fall within clause (ii), would deny the 

defendant reasonable time to obtain counsel, would 

unreasonably deny the defendant or the Government 

continuity of counsel, or would deny counsel for the 

defendant or the attorney for the Government the 

reasonable time necessary for effective preparation, 

taking into account the exercise of due diligence.
8 UNITED STATES V. OROZCO-BARRON

“[I]f a judge fails to make the requisite findings 

regarding the need for an ends-of-justice continuance, the 

delay resulting from the continuance must be counted, and if 

as a result the trial does not begin on time, the indictment or 

information must be dismissed.” Zedner, 547 U.S. at 508. 

Therefore, the “failure to make the prescribed findings” to 

justify a continuance cannot “be excused as harmless error” 

under “the Act’s categorical terms.” Id.

We have recently “provide[d] guidance on the 

application of the Speedy Trial Act’s ends of justice 

provision, 18 U.S.C. § 3161(h)(7)(A), in the context of the 

challenges presented by the COVID-19 pandemic.” Olsen, 

21 F.4th at 1044. In Olsen, we considered delays caused by 

the Central District of California’s suspension of jury trials 

due to the COVID-19 pandemic. Id. at 1041. On March 13, 

2020, the Central District declared a judicial emergency 

under 18 U.S.C. § 3174,2 which was subsequently approved 

by the Ninth Circuit’s Judicial Council. In re Approval of 

Jud. Emergency Declared in C.D. Cal., 955 F.3d 1140, 1141 

(9th Cir. 2020) (order). The Central District then issued a 

series of emergency orders suspending criminal jury trials 

“with the stated purpose ‘to protect public health’ and ‘to 

reduce the size of public gatherings and reduce unnecessary 

travel,’ consistent with the recommendations of public 

health authorities.” Olsen, 21 F.4th at 1041. After eight 

continuances of the defendant’s trial date, the defendant 

asked to proceed with a jury trial. Id. at 1042. “The 

government argued that an ends of justice continuance was 

appropriate due to the COVID-19 pandemic, the Central 

2 18 U.S.C. § 3174 provides procedures for a district court to apply to the 

judicial council of the circuit to suspend the time limits required for 

compliance with the Speedy Trial Act.
UNITED STATES V. OROZCO-BARRON 9

District’s order suspending jury trials, and the absence of 

protocols to ensure the safety of jurors, witnesses, court staff, 

litigants, attorneys, defendants, and the public.” Id.

The district court denied the government’s motion. Id. 

The court focused on one factor set out in § 3161(h)(7)(B)(i), 

“[w]hether the failure to grant such a continuance in the 

proceeding would be likely to make a continuation of such 

proceeding impossible.” Id. at 1042–43. Interpreting this 

language narrowly, the court held that an ends of justice 

continuance could not be granted unless holding a trial 

would be literally impossible. Id. at 1043. Observing that 

“grand juries had convened in the federal courthouse” and 

that a state court across the street “had resumed jury trials 

with precautionary measures,” the district court determined 

that it was “not a physical or logistical impossibility to 

conduct a jury trial.” Id. Therefore, it denied the motion for 

a continuance. Id. at 1042. The court subsequently granted 

the defendant’s motion to dismiss the indictment with 

prejudice for violations of the Speedy Trial Act. Id. at 1043–

44.

Olsen reversed in an opinion setting forth important 

direction for reviewing an ends of justice continuance in an 

emergency situation such as the one before the district court. 

First, Olsen rejected the district court’s narrow reading 

of § 3161(h)(7)(b)(i) as precluding a court from granting 

ends of justice continuances if holding a trial is not literally 

impossible. Id. at 1044–45. Olsen held there was no such 

per se rule, and a court could grant such an ends of justice 

continuance even if a trial were physically or logistically 

possible in some manner. Id. In the same vein, Olsen

rejected the argument that a court could not grant an ends of 

justice continuance merely because other courts were able to 
10 UNITED STATES V. OROZCO-BARRON

conduct jury trials. See id at 1046–47 nn.9–10. Olsen noted 

that different courthouses may raise different risk factors, 

and that courts holding jury trials were not necessarily 

conducting such trials safely. Id.

Second, Olsen indicated that in evaluating a motion for 

an ends of justice continuance, a district court cannot limit 

itself to focusing only on the statutory impossibility factor in 

§ 3161(h)(7)(B)(i), but must consider other relevant 

statutory and non-statutory factors. Id. at 1046–47. 

Specifically, Olsen held that the district court should have 

evaluated whether the failure to grant a continuance would 

be likely to “result in a miscarriage of justice.” Id. at 1046

(citing § 3161(h)(7)(B)(i)). The court should also have 

considered other non-statutory factors relevant to the 

COVID-19 pandemic.3 Id.

Next, Olsen held that “a global pandemic that has 

claimed more than half a million lives in this country, and 

3 In the context of the COVID-19 pandemic, Olsen found the following 

“non-exhaustive,” non-statutory factors relevant: 

(1) whether a defendant is detained pending trial; (2) 

how long a defendant has been detained; (3) whether 

a defendant has invoked speedy trial rights since the 

case’s inception; (4) whether a defendant, if detained, 

belongs to a population that is particularly susceptible 

to complications if infected with the virus; (5) the 

seriousness of the charges a defendant faces, and in 

particular whether the defendant is accused of violent 

crimes; (6) whether there is a reason to suspect 

recidivism if the charges against the defendant are 

dismissed; and (7) whether the district court has the 

ability to safely conduct a trial.

21 F.4th at 1046.
UNITED STATES V. OROZCO-BARRON 11

nearly 60,000 in California alone, falls within such unique 

circumstances to permit a court to temporarily suspend jury 

trials in the interest of public health.” Id. at 1047. Olsen

noted our Judicial Council’s explanation that “Congress did 

not intend that a district court demonstrate its inability to 

comply with the [Speedy Trial Act] by dismissing criminal 

cases and releasing would-be convicted criminals into 

society.” Id. (alteration in original) (citing Judicial 

Emergency, 955 F.3d at 1142–43).

Olsen also indicated that the Central District’s 

emergency general orders were a sufficient basis “to pause 

jury trials and exclude time under the Speedy Trial Act.” Id.

at 1049. Olsen observed that “[t]he orders acknowledge the 

importance of the right to a speedy and public trial both to 

criminal defendants and the broader public, and conclude 

that, considering the continued public health and safety 

issues posed by COVID-19, proceeding with such trials 

would risk the health and safety of those involved, including 

prospective jurors, defendants, attorneys, and court 

personnel.” Id.; see also id. at 1052 (Murguia, C.J., and 

Christen, J., concurring in denial of rehearing en banc) 

(describing Olsen as noting “that the Central District of 

California’s emergency general orders clearly applied the 

Speedy Trial Act standard”).

Given the national emergency caused by the COVID-19 

pandemic, and the Central District’s suspension of jury 

trials, Olsen had “no difficulty in concluding that the district 

court’s failure to grant the government’s motion and 

subsequent dismissal of [the defendant]’s 

indictment . . . resulted in a miscarriage of justice.” Id. at 

1046. Therefore, Olsen concluded that the government was 

entitled to an ends of justice continuance, and ordered the 

district court to grant one and set the case for a trial. Id. at 
12 UNITED STATES V. OROZCO-BARRON

1049. Olsen also reversed the district court’s dismissal of 

the defendant’s indictment. Id.

Our conclusion in Olsen is consistent with the 

conclusions of two of our sister circuits. See United States 

v. Leveke, 38 F.4th 662, 670 (8th Cir.), cert. denied, 143 S. 

Ct. 386 (2022) (holding that a district court may properly 

grant an ends of justice continuance to postpone all jury trials 

due to the COVID-19 pandemic, and may rely on 

administrative orders issued by the district); United States v. 

Roush, No. 21-3820, 2021 WL 6689969, at *1–2 (6th Cir. 

Dec. 7, 2021), cert. denied, 142 S. Ct. 1187 (2022) (holding 

that the district court did not abuse its discretion in granting 

an ends of justice continuance based on the district court’s 

General Orders pertaining to the management of cases 

during the COVID-19 pandemic); cf. United States v. Keith, 

61 F.4th 839, 851 (10th Cir. 2023) (holding that “[t]he 

district court acted within its discretion by excluding . . . 85 

days from the [Speedy Trial Act] clock” and “support[ing] 

its ends-of-justice findings by identifying ‘the current state 

of the COVID-19 pandemic in Oklahoma,’” citing the 

Western District of Oklahoma’s court-wide General Orders). 

II

A

We now turn to the facts of this case. Armando OrozcoBarron is a citizen of Mexico who has repeatedly entered the 

United States illegally, and has been deported eight times. 

During the periods he was in the United States, he was 

convicted of multiple offenses, including four convictions 

for driving while intoxicated, three for assault or battery, 

including a domestic violence conviction, two for improper 

entry in violation of 8 U.S.C. § 1325, and one for illegal 

reentry in violation of 8 U.S.C. § 1326.
UNITED STATES V. OROZCO-BARRON 13

On July 17, 2020 (three months after his most recent 

deportation to Mexico), he was once again arrested for 

illegal reentry. When arrested, Orozco-Barron admitted he 

had no right to enter the United States, and was ordered 

detained. Orozco-Barron waived indictment. The 

government filed an information, charging Orozco-Barron 

with attempted reentry by a deported alien in violation of 8 

U.S.C. § 1326, on August 13, 2020.4

As in Olsen, Orozco-Barron’s trial took place against a 

backdrop of the global COVID-19 pandemic. Beginning on 

March 17, 2020, Chief Judge Burns of the Southern District 

of California (who also was the presiding judge of OrozcoBarron’s district court case) declared a judicial emergency, 

see 28 U.S.C. § 3174(e), and issued an emergency order 

suspending Speedy Trial Act time limits in his district (Chief 

Judge Order 18).

5 In addition to declaring a judicial 

emergency, the Chief Judge ordered all jury trials in criminal 

cases to be continued until April 16, 2020. The Chief Judge 

based his order on the need “to protect public safety and 

4 On appeal, Orozco-Barron argues that the district court erred by not 

dismissing his information on the ground that § 1326 violates the Equal 

Protection Clause. After the appeal in this case, we held that Section 

1326 does not violate the Equal Protection Clause. See United States v. 

Carrillo-Lopez, No. 21-10233, __ F.4th __ (9th Cir. 2023). Therefore, 

we reject this argument. 

5 Other district courts in California took the same approach. The Central 

District had filed a similar declaration of emergency a few days earlier, 

see Olsen, 21 F.4th at 1041 n.2. The Chief Judge of the Northern District 

issued an emergency order on March 16, 2020, see United States v. Allen, 

34 F.4th 789, 793 (9th Cir. 2022). The Chief Judge of the Eastern 

District also issued an emergency order on March 17, 2020. In re 

Approval of Jud. Emergency Declared in E.D. Cal., 956 F.3d 1175, 1177 

(9th Cir. 2020) (order). 
14 UNITED STATES V. OROZCO-BARRON

prevent the spread of COVID-19,” as well as a range of 

additional factors, including that the “President of the United 

States of America, the Governor of the State of California, 

and the Mayor of the City of San Diego ha[d] declared states 

of emergency in response to” COVID-19, that the “Centers 

for Disease Control and Prevention and other public health 

authorities ha[d] advised that public gatherings be limited to 

no more than ten people,” that the “United States Attorney 

for the Southern District” advised “that a quorum of grand 

jurors [would] not be available,” and that the San Diego 

federal jail had “restricted access by defense counsel to their 

incarcerated clients.” Further, the Chief Judge found that the 

“effect of these public health recommendations and the 

concerns and restrictions that they have generated ha[d] 

greatly jeopardized the Court’s ability to obtain an adequate 

spectrum of trial and grand jurors, and impair[ed] the 

availability of counsel, witnesses, parties, the public, . . . and 

Court staff to be present in the courtroom.” Based on these 

factors, the Chief Judge found that “the period of suspension 

of criminal trials and other criminal proceedings 

implemented by this Order” was to be “excluded under the 

Speedy Trial Act” per 18 U.S.C. § 3161(h)(7)(A), because 

“these continuances serve the ends of justice and outweigh 

the interests of the public, of the government, and of criminal 

defendants in a speedier trial.”6 

6 As in Olsen, the Ninth Circuit’s Judicial Council subsequently 

approved the Chief Judge’s request and extended the judicial emergency 

for an additional period of up to one year. See In re Approval of Jud. 

Emergency Declared in S.D. Cal., 955 F.3d 1135, 1136 (9th Cir. 2020) 

(order). Although a declaration under § 3174 extends the time limits 

from indictment to trial under the Speedy Trial Act, “[t]he time limits for 

the trial of cases of detained persons who are being detained solely 

because they are awaiting trial” are not affected by that section. 18 
UNITED STATES V. OROZCO-BARRON 15

A month later, on April 15, 2020, the Chief Judge issued 

a second order extending the continuance for an additional

period of 30 days. The order stated that the “circumstances 

giving rise to the judicial emergency ha[d] not materially 

changed or abated” in the last thirty days, and the “public 

health emergency continue[d] in the nation, the State of 

California, and the City of San Diego” due to COVID-19. 

Therefore, based on the same “factors outlined in [Chief 

Judge Order] 18” regarding the need “to protect the public 

safety and prevent the spread” of COVID-19, the Chief 

Judge extended the emergency orders set forth in Chief 

Judge Order 18 and found that “this extension serve[d] the 

ends of justice under 18 U.S.C. § 3161(h)(7)(A).” 

As the COVID-19 pandemic worsened over the 

following months, the Chief Judge continued to issue 

substantially similar orders on a monthly basis through the 

end of the year.7 Each order renewed the suspension of 

criminal jury trials and trial-specific deadlines in the 

Southern District for only 30 days, and made the same 

findings. Four such chief judge orders were issued during 

U.S.C. § 3174(b). Therefore, the emergency extension of Speedy Trial 

Act time limits under § 3174 does not affect Orozco-Barron; rather, the 

ordinary Speedy Trial Act time limits apply, as the government conceded 

in its response to Orozco-Barron’s motion to dismiss the information 

under the Speedy Trial Act. On appeal, the government does not argue 

otherwise.

7 See Chief Judge Order 27 (filed May 15, 2020); Chief Judge Order 30 

(filed June 11, 2020); Chief Judge Order 33 (filed July 13, 2020); Chief 

Judge Order 34 (filed August 14, 2020); Chief Judge Order 40 (filed 

September 14, 2020); Chief Judge Order 47 (filed October 14, 2020); 

Chief Judge Order 50 (filed November 16, 2020). The chief judge orders 

are accessible at https://www.casd.uscourts.gov/rules/generalorders.aspx. 
16 UNITED STATES V. OROZCO-BARRON

the period from August 14, 2020 to December 1, 2020, and 

each found that a 30-day continuance of criminal jury trials 

and trial-specific deadlines “serves the ends of justice under 

18 U.S.C. § 3161(h)(7)(A).”8

On August 24, 2020, the Chief Judge issued a “District 

Trial Reopening Plan” (Chief Judge Order 36). This order 

provided a protocol for resuming civil and criminal jury 

trials to the extent possible, starting on August 31, 2020. The 

protocol noted the severe logistical difficulties in conducting 

trials “while maintaining the integrity of our health and 

safety protocol.” In order to conduct trials safely, “[o]nly 

one trial [would] be set to start per floor per week” because 

there was “only one large enough room to assemble” jurors, 

there were “limits on the elevator capacity,” and people 

needed to “maintain appropriate social distancing.” Since 

availability and resources had to be divided among the 

judges in the district, a “rotation plan” was established. The 

Southern District successfully conducted a total of 14 trials 

(civil and criminal) under this protocol until December 2, 

2020. 

On December 2, 2020, the district court convened a 

status hearing in Orozco-Barron’s case. Recognizing that “it 

[has] been tough on [Orozco-Barron] in custody,” the court 

explained that due to the pandemic-related restrictions in the 

Southern District, such as the inability to summon potential 

jurors and the limited trial space, the court was still unable 

to set a trial date.

8 The orders applicable during the 110 day period at issue in this case 

were Chief Judge Order 34 (filed August 14, 2020); Chief Judge Order 

40 (filed September 14, 2020); Chief Judge Order 47 (filed October 14, 

2020); Chief Judge Order 50 (filed November 16, 2020). 
UNITED STATES V. OROZCO-BARRON 17

On December 3, 2020, California experienced “an 

unprecedented surge in the level of community spread of 

COVID-19.” Based on state and local orders in response to 

this surge, the Chief Judge reinstated a moratorium on 

conducting in-person court proceedings. 

While his case was pending, Orozco-Barron made 

several filings in district court. He filed a motion to suppress 

post-arrest statements, which was denied in a hearing on 

May 19, 2021. He also filed an appeal from the detention 

order issued by the magistrate judge, which was denied in a 

hearing on February 3, 2021. Finally, he filed a motion to 

dismiss the information on the ground that § 1326 violated 

the Equal Protection Clause and that the information violated 

the Fifth and Sixth Amendments. On April 7, 2021, the court 

denied his motion to dismiss. At that hearing, the court set 

a trial date for July 13, 2021, having found an available slot 

in the Southern District’s rotation plan. 

On June 23, 2021, Orozco-Barron protested the delay in 

setting a trial date for the first time, by filing a motion to 

dismiss for violation of the Speedy Trial Act. He claimed 

that the seventy-day time frame for trial had expired on 

October 23, 2020. On July 12, 2021, the district court denied 

the motion. The court stated it was relying “on the pendency 

of chief judge orders,” which suspended jury trial 

proceedings for 30-day periods in light of the pandemic 

emergency.9 The court explained that in June 2021, when 

Orozco-Barron filed his motion, the Southern District was 

“still under a chief judge order that limited the number of 

9 The district judge noted he was “fully aware of what the chief judge 

orders were” because he “issued some of them as chief.” Among other 

orders, the district judge had issued chief judge orders 34, 40, 47, and 50, 

which were in effect during the disputed time period here. 
18 UNITED STATES V. OROZCO-BARRON

jury trials to three per week, only one of which would be in 

a custody case.” Because “[j]udges had to compete for 

slots,” the court was unable to schedule Orozco-Barron’s 

trial any time before July 13, 2021. The court explained that 

“the pandemic concerns were still in effect all the way 

through the expiration of that chief judge order,” so “[a]ll of 

that time was excluded under the order.”

Orozco-Barron’s trial was held on July 13, 2021, and he 

was convicted by a jury of attempted illegal reentry.

B

On appeal, Orozco-Barron argues that the district court 

erred in denying his motion to dismiss for violation of the 

Speedy Trial Act. The focus of the parties’ dispute is on 

whether the period from August 14, 2020 (the day after the 

information was filed) until December 1, 2020 (a total of 110 

days) is excluded from computing the time within which the 

trial had to commence under the Speedy Trial Act.

10

10 The time from the filing of Orozco-Barron’s information, August 13, 

2020, to the date of trial, July 13, 2021, spanned 334 days. OrozcoBarron agrees that the period from December 2, 2020 to May 19, 2021 

(a total of 168 days) and the period from June 21, 2021 until trial on July 

13, 2021 (a total of 22 days) were validly excluded from the Speedy Trial 

Act clock. See 18 U.S.C. § 3161(h)(1)(D). Although the government 

initially argued that the time period between May 20, 2021 to June 21, 

2021 (a total of 32 days) was excludable from the Speedy Trial Act clock, 

it now concedes that the time was not excludable. Therefore, we do not 

address Orozco-Barron’s arguments that this period of delay is not 

excludable. If the period from August 14, 2020 to December 1, 2020 

(the period which the parties dispute on appeal) is excludable, then only 

32 days of the 70-day Speedy Trial Act time clock elapsed, and the 

district court did not err because there was no Speedy Trial Act violation. 

See 18 U.S.C. § 3161(c)(1). If that time period is not excludable, then 

142 days elapsed, and Orozco-Barron’s “information must be dismissed” 
UNITED STATES V. OROZCO-BARRON 19

We have jurisdiction under 28 U.S.C. § 1291. We 

review the district court’s interpretation of the Speedy Trial 

Act de novo, while we review its evaluation of the statutory 

and non-statutory factors as well as its ultimate ends of 

justice determination for clear error. Olsen, 21 F.4th at 1040.

III

We now turn to the question whether the district court 

here improperly granted a continuance based on the ends of 

justice exception. 

A

We conclude that the district court complied with the 

applicable statutory requirements. First, the district court’s 

finding that the ends of justice were best served by granting 

continuances during the period from August 14, 2020 until 

December 1, 2020 was timely because the district court put 

this finding on the record during the July 12, 2021 hearing 

on the defendant’s motion to dismiss under § 3162(a)(2).11 

See Zedner, 547 U.S. at 506–07 & n.7.

The continuances were also specifically limited in time. 

See Lloyd, 125 F.3d at 1268. In granting the continuances, 

the district court “relie[d] on the pendency of [the] chief 

judge orders.” Each of the orders applicable during this 110-

because his trial did not commence within 70 days. Zedner, 547 U.S. at 

508.

11 We reject Orozco-Barron’s assertion that the district court erred by not 

explaining its reasons for a continuance at the time the court granted the 

continuance during the period from August 14, 2020 to December 1, 

2020. The court need not put its reasons on the record until the 

“defendant moves to dismiss the indictment for failure to comply with 

the Speedy Trial Act.” McCarns, 900 F.3d at 1145 n.6; see also Zedner, 

547 U.S. at 506–07.
20 UNITED STATES V. OROZCO-BARRON

day period (chief judge orders 34, 40, 47, and 50) 

incorporated Chief Judge Order 18, which granted only a 30-

day continuance. Each of the subsequent monthly orders 

included the finding that “[m]any of the circumstances 

giving rise to the judicial emergency” in the district due to 

COVID-19 had “not materially changed” or “abated” in the 

preceding 30 days, so they granted an additional 30-day 

continuance. Accordingly, the district court’s continuances, 

based on the chief judge orders, were limited in time to 

successive 30-day periods.12 See Lloyd, 125 F.3d at 1268. 

Next, the district court made the requisite findings under 

§ 3161(h)(7)(A), consistent with Olsen, by relying on the 

chief judge orders in effect during the time period at issue. 

Like the general orders in Olsen, the chief judge orders

explained why it was necessary, in light of the global 

COVID-19 pandemic, to suspend jury trials for 30 days “to 

protect the public safety and prevent the spread” of COVID19. Each order expressly found that “this extension serve[d] 

the ends of justice under 18 U.S.C. § 3161(h)(7)(A).”

In addition to relying on the chief judge orders, the 

district court also made its own findings on the record. The 

court explained that even with mitigating measures, such as

“people . . . stay[ing] six feet away from each other” and 

“wear[ing] masks,” because of the emergency situation due 

to COVID-19, the operations of the court were severely 

limited because it was “impossible to select a jury in the 

12 The dissent errs in stating that our “reasoning would allow indefinite 

suspensions of criminal jury trials based solely on blanket general 

orders.” Dissent at 41. Rather, each of the orders was limited in time to 

a 30-day continuance, based on the finding that “[m]any of the 

circumstances” due to COVID-19 had “not materially changed” or 

“abated” in the preceding 30 days.
UNITED STATES V. OROZCO-BARRON 21

courtrooms,” and the need to protect public health and safety 

limited each judge’s ability to conduct a trial. During the 

period of delay at issue, the court found that the Southern 

District was “under a chief judge order that limited the 

number of jury trials,” and judges “had to take turns” to use 

the available courtrooms, and “had to compete for slots,” 

using “a lottery form for the” 15 to 17 judges “who [were] 

trying cases,” so the court could not schedule a case “with

any degree of predictability.” The Southern District 

succeeded in holding only 14 trials during the period from 

August 14, 2020 until December 1, 2020. Given the chief 

judge orders and the limitations on scheduling trial, the court 

concluded “it was impossible, a fact that the Ninth Circuit 

recognized in [Olsen], for the Court to convene [OrozcoBarron’s] jury trial any time before” July 13, 2021 due to the 

COVID-19 pandemic. Based on these pandemic-based 

restrictions, the district court held that it could not convene 

Orozco-Barron’s jury trial before July 13, 2021. 

The district court also considered the relevant statutory 

and non-statutory factors when deciding to grant a 

continuance. In his statements at the hearing, the district 

court focused on the factor set forth in § 3161(h)(7)(B)(i), 

whether the failure to grant a continuance “would be likely 

to make continuation of such proceeding impossible, or 

result in a miscarriage of justice.” In stating that Olsen

recognized the impossibility of scheduling a trial during the 

pandemic, the court showed its understanding that 

“impossible” does not mean “literal impossibility,” 21 F.4th 

at 1044–45, but rather that it faced the same barriers as were 

present in Olsen. The court also considered the most 

germane of the non-statutory factors relevant in a pandemic 

emergency, “whether the district court has the ability to 

safely conduct a trial.” Id. at 1046. 
22 UNITED STATES V. OROZCO-BARRON

The court’s findings—both the district court’s 

statements at the hearing and the chief judge orders 

incorporated by reference—are consistent with Olsen’s 

reasoning that a court could appropriately base its decision 

to grant continuances on the fact that “a global pandemic that 

has claimed more than half a million lives in this country, 

and nearly 60,000 in California alone, falls within such 

unique circumstances to permit a court to temporarily 

suspend jury trials in the interest of public health.” Id. at 

1047. 

In light of our ruling in Olsen, and the continuation of 

the global pandemic, we conclude that neither the district 

court’s factual findings nor its ultimate ends of justice 

determination were clearly erroneous. See United States v. 

Christie, 825 F.3d 1048, 1058 (9th Cir. 2016) (“To be clearly 

erroneous, a finding must be more than possibly or even 

probably wrong; the error must be pellucid to any objective 

observer.” (citation and quotation marks omitted)). The 

district court based its findings on specific and wellrecognized emergency limitations imposed due to health 

concerns that we recognized in Olsen, and that were present 

at the time it ordered the delays. Failing to grant a 

continuance would result in dismissing a criminal case and 

releasing a defendant charged with a recidivist offense, 

which is a miscarriage of justice recognized in Olsen. See 

21 F.4th at 1046. Nor does the ability of the Southern 

District to conduct a minimal number of trials make the 

district court’s finding that it could not schedule a trial in 

Orozco-Barron’s case, due to the effects of the pandemic, 

clearly erroneous. Christie, 825 F.3d at 1058. In Olsen, 

“grand juries had convened in the federal courthouse” and 

the state court across the street was holding jury trials, and 
UNITED STATES V. OROZCO-BARRON 23

yet we held that the district court erred in not granting a 

continuance. 21 F.4th at 1043.13

The dissent argues that the district court failed to 

consider the relevant factors because its ruling relied on the 

chief judge orders and did “not reflect consideration of 

Orozco-Barron’s detained status during the pre-trial period,” 

Dissent at 41–42 (citing United States v. Torres, 995 F.3d 

695, 704 (9th Cir. 2021)). We disagree. A district court may 

incorporate the reasoning in general orders when an 

emergency or disaster has effects that are generally 

applicable, see infra at 27–28. Nor does Torres require the 

district court to make a finding on the record regarding the 

defendant’s detained status. Rather, in Torres, we deemed 

that the district court had adequately considered the 

defendant’s pretrial detention status because it “was well 

aware of Torres’[s] detention status, having previously 

denied Torres’s request for release,” and because there was 

“no indication that the district court failed to consider 

Torres’s interest in being free from prolonged pretrial 

detention when it considered whether the ends of justice 

justified a continuance.” See 995 F.3d at 707 n.10. Here, 

the district court likewise was well aware of OrozcoBarron’s detention status, because it had previously denied 

Orozco-Barron’s request for release after holding a hearing,

13 The dissent therefore errs in faulting the district court’s decision on the 

ground that “the Southern District of California had resumed conducting 

jury trials on a limited basis.” Dissent at 30, 33, 41, 44. The district 

court explained why the resumption of jury trials did not change its 

conclusion that it remained impossible to convene a jury trial in OrozcoBarron’s case before July 13, 2021, and Olsen itself recognized that the 

mere fact that a district court could physically hold a trial (and that other 

courts were doing so) would not prevent a court from granting an ends 

of justice continuance. 21 F.4th at 1045.
24 UNITED STATES V. OROZCO-BARRON

and subsequently recognized that it had been “tough on 

[Orozco-Barron] in custody.” Thus, there is no indication 

that the district court failed to consider Orozco-Barron’s 

interest in being free from prolonged detention. 

B

Orozco-Barron raises several arguments against this 

conclusion. First, he argues that the district court could not 

properly rely on the “pendency of chief judge orders” 

because the orders failed to address all the relevant, nonstatutory factors set forth in Olsen. At most, Orozco-Barron 

argues, the orders relied on Olsen’s seventh factor (whether 

the court had the ability to safely conduct trial).

We disagree. It is not necessary for a court to address 

each of the statutory or non-statutory factors on the record 

before granting a continuance. The “Speedy Trial Act only 

requires a district court to state ‘its reasons for finding that 

the ends of justice served by granting of such continuance 

outweigh the best interests of the public and the defendant in 

a speedy trial.’” McCarns, 900 F.3d at 1144 (alteration in 

original) (citing 18 U.S.C. § 3161(h)(7)(A)). But “[a] 

district court does not need to recite specific statutory 

language to satisfy § 3161(h)(7)(A) as long as its reasoning 

is sufficient to justify excluding the continuance from the 

Act’s seventy-day limit.” Id. at 1144–45 (emphasis added). 

For the same reason, it is not necessary for the district court 

to address each of the non-statutory factors identified in 

Olsen on the record so long as the district court provides 

adequate reasoning for granting the continuance.

Olsen confirms this conclusion. In Olsen, we held that 

the district court erred by failing to consider the “miscarriage 

of justice” factor. 21 F.4th at 1046. We did not suggest it 

erred by failing to mention each of the other statutory 
UNITED STATES V. OROZCO-BARRON 25

factors. Although we listed seven additional “nonexhaustive” factors that we found relevant in the context of 

the COVID-19 pandemic, we did not hold that the district 

court erred by failing to address each non-statutory factor on 

the record. Id. Rather, we held that the district court has 

“broad discretion to consider any factors” bearing on the 

ends of justice determination, and we faulted the district 

court for failing to consider any relevant non-statutory 

considerations. Id. (emphasis added). Moreover, Olsen

indicated that the findings in the chief judge orders (which 

are substantially similar to the orders in this case) were 

adequate “to pause jury trials and exclude time under the 

Speedy Trial Act,” id. at 1049, even though they did not 

address the non-statutory factors listed in that opinion.14

Orozco-Barron argues that Olsen did consider all of the 

non-statutory factors before ordering the district court to 

issue an ends of justice continuance. See id. at 1056–57 

(Murguia, C.J., and Christen, J., concurring in denial of 

14 The dissent argues that our reliance on Olsen for the conclusion that a 

district court may properly rely on a generally applicable circumstance 

to grant an ends of justice continuance is erroneous, because Olsen is 

distinguishable from our case. According to the dissent, “the question 

presented in Olsen” was whether the district court erred in its statutory 

interpretation of the Speedy Trial Act, and Olsen did not address “the 

general orders that suspended jury trials after the pandemic broke out.” 

Dissent at 33. This is incorrect. If the only question in Olsen was one 

of statutory interpretation, then—after correcting the district court’s 

misinterpretation of the word “impossible”—Olsen would have 

remanded the case to the district court to make an ends of justice 

determination under the correct reading of the statute. 21 F.4th at 1045. 

But instead, Olsen recounted the reasoning of the Central District’s 

emergency orders, and then ordered the district court to grant “an 

appropriate ends of justice continuance, and set [the] case for trial.” 21 

F.4th at 1049.
26 UNITED STATES V. OROZCO-BARRON

rehearing en banc). Therefore, Orozco-Barron reasons, the 

district court here should have done the same. But Olsen

neither expressly analyzed each factor nor stated that the 

district court was required to do so. To the contrary, the nonprecedential concurrence in Olsen, on which Orozco-Barron 

relies, indicated that Olsen had implicitly addressed the nonstatutory factors on appeal in the first instance. Id. And 

despite the lack of any express analysis of the non-statutory 

factors, Olsen “reinstate[d] [the defendant’s] indictment” 

and “grant[ed] an appropriate ends of justice continuance.” 

Id. at 1049 (majority opinion). Therefore, the failure of the 

district court to expressly address the “suggested” factors 

Olsen found “relevant” was not an error that violated the 

Speedy Trial Act.

Second, Orozco-Barron and the dissent contend that the 

district court erred by failing to make any individualized, 

case-specific findings. In making this argument, OrozcoBarron and the dissent rely on United States v. RamirezCortez, Dissent at 31–32, 39–40, 44, where a defendant 

participating in the Southern District’s fast-track program 

(which “was instituted to expedite resolution of the large 

number of illegal re-entry cases” in that district) had 

requested several continuances of the 30-day pre-indictment 

time period in order to consider a plea agreement offered by 

the government. 213 F.3d 1149, 1151 (9th Cir. 2000). The 

fast-track program’s expedited schedule frequently 

“necessitate[d] continuances beyond the thirty-day preindictment period required by the Speedy Trial Act,” and so 

a magistrate judge might grant continuances for multiple 

defendants simultaneously. Id. at 1152, 1154 & n.5. The 

magistrate judge granted two such continuances for the 

defendant by checking a box on a pre-printed form, which 

indicated that the time would be excluded pursuant to an 
UNITED STATES V. OROZCO-BARRON 27

ends of justice exception. Id. at 1154. We held that the 

continuances violated the Speedy Trial Act because the 

magistrate judge granted blanket continuances to multiple 

defendants, and did not make any inquiry into the need for a 

continuance nor consider any of the ends of justice factors in 

the defendant’s case. Id. at 1154–57. Orozco-Barron and 

the dissent argue that the chief judge orders here likewise 

grant “blanket continuances” and “displace the proper 

‘particularized inquiry as to the actual need and reasons for 

a continuance.’”

This argument fails. In Ramirez-Cortez, the defendant’s 

need for a continuance was based on a reason specific to his 

particular situation, that he needed more time to respond to 

the government’s proposed plea agreement. Id. at 1149. But 

that is not the situation here, where the period of delay was 

caused by an emergency or disaster that has the same 

widespread effects on courts and parties alike. In such 

unusual cases, a district court may properly rely on a 

generally applicable circumstance to grant an ends of justice 

continuance, and need not make individualized 

determinations. See Olsen, 21 F.4th at 1049; see also United 

States v. Paschall, 988 F.2d 972 (9th Cir. 1993). In 

Paschall, for instance, a major snowstorm in Portland 

prevented the grand jury from forming a quorum for eight 

days. 988 F.2d at 973–74. In light of this event, the Chief 

Judge issued an order granting an ends of justice continuance 

for eight days of the 30-day pre-indictment period due to the 

“extreme adverse weather conditions” and their effect on 

forming a grand jury. Id. at 974. A district court later relied 

on the Chief Judge’s order to deny a defendant’s motion to 

dismiss because his indictment was not issued within the 30 

days. Id. We rejected the defendant’s argument that the 

chief judge and district court failed to make sufficiently 
28 UNITED STATES V. OROZCO-BARRON

“specific findings,” and held that the district court complied 

with the requirements for granting a continuance under the 

ends of justice exception by adopting the chief judge’s order. 

Id. at 975.15 As in Paschall, the need for a continuance here 

was not based on any reason specific to Orozco-Barron, but 

rather due to a global pandemic that required suspending or 

sharply limiting trials in the Southern District generally. In 

such circumstances, the reasons for granting the ends of 

justice continuance need not be particularized to an 

individual defendant, they need only be appropriate for the 

situation. See McCarns, 900 F.3d at 1144–45. 

Last, Orozco-Barron argues that the chief judge orders 

could not have supplied the necessary weighing of the ends 

of justice factors because the chief judge orders during the 

disputed period (chief judge orders 34, 40, 47, and 50) each 

stated that “the ends of justice under 8 U.S.C. 

§ 3161(h)(7)(A)” supported an extension of the previous 

chief judge order, instead of stating that “the ends of justice 

under 8 U.S.C. § 3161(h)(7)(A)” supported a continuance of 

pending trials dates. This argument is meritless. The 

Speedy Trial Act “does not require such ‘magic words.’” 

United States v. White, 920 F.3d 1109, 1117 (6th Cir. 2019) 

(citing United States v. Breen, 243 F.3d 591, 597 (2d Cir. 

2001)); see also McCarns, 900 F.3d at 1144–45 (holding that 

ends of justice rulings need not “recite specific statutory 

language to satisfy § 3161(h)(7)(A)”). Rather, it requires 

15 Nothing in Paschall suggests that this court granted a continuance 

under the ends of justice exception strictly because the continuance 

“concerned only [a] brief and finite delay[] of proceedings,” contrary to 

the dissent. Dissent at 41. Additionally, due to the “unprecedented 

challenges” brought by COVID-19, Olsen, 21 F.4th at 1040, it was 

impossible for the district court to predict when the pandemic would end, 

so 30-day continuances were reasonably brief under the circumstances. 
UNITED STATES V. OROZCO-BARRON 29

only that the district court make findings that the ends of 

justice are served by a period of delay, and the district court 

did so here. 

C

We conclude that the district court did not err in granting 

a continuance based on the ends of justice exception 

because, as we have previously determined, a global 

pandemic falls within the unique circumstances that permits 

a court to temporarily suspend a jury trial in the interest of 

public health and safety.16

AFFIRMED.

16 In reaching this conclusion, we do not comment on the extent of a 

defendant’s right to a speedy trial under the Sixth Amendment. The only 

speedy trial claim presented in this appeal was brought as a statutory 

claim under the Speedy Trial Act.
30 UNITED STATES V. OROZCO-BARRON

CHRISTEN, Circuit Judge, concurring in part and dissenting 

in part: 

I concur in the majority’s conclusion that 8 U.S.C. § 

1326 does not violate the Equal Protection Clause, Maj. Op. 

at 13 n.4, but the majority errs by affirming the district 

court’s denial of Armando Orozco-Barron’s motion to 

dismiss for violation of the Speedy Trial Act (STA). The 

majority relies on United States v. Olsen, 21 F.4th 1036 (9th 

Cir. 2022), a case that arose when a series of orders 

suspended all jury trials in the Central District of California 

due to the COVID-19 pandemic. By contrast, most of 

Orozco-Barron’s pre-trial detention occurred after the 

Southern District of California had resumed conducting jury 

trials on a limited basis. As such, the STA and Supreme 

Court precedent interpreting it required the district court to 

make case-specific findings before excluding time on the 

STA clock. Because the district court did not do so, I 

respectfully dissent. 

I 

“[T]he right to a speedy and public jury trial provided by 

the Sixth Amendment is among the most important 

protections guaranteed by our Constitution, and it is not one 

that may be cast aside in times of uncertainty.” Olsen, 21 

F.4th at 1049 (citing Furlow v. United States, 644 F.2d 764, 

769 (9th Cir. 1981) (per curiam)); see also Furlow, 644 F.2d 

at 769 (“Except for the right of a fair trial before an impartial 

jury no mandate of our jurisprudence is more important.”). 

The STA requires that a criminal trial begin within 

seventy days from the date on which the indictment was filed 

or the date on which the defendant makes an initial 

appearance, whichever occurs later. 18 U.S.C. § 3161(c)(1). 
UNITED STATES V. OROZCO-BARRON 31

The Act provides flexibility by including a list of reasons 

that delays may be excluded from the seventy-day period. 

Zedner v. United States, 547 U.S. 489, 497 (2006). In 

particular, the ends-of-justice provision “gives the district 

court discretion—within limits and subject to specific 

procedures—to accommodate limited delays for casespecific needs.” Id. at 499. Granting an ends-of-justice 

continuance requires a finding that “the ends of justice 

served by taking such action outweigh the best interest of the 

public and the defendant in a speedy trial.” 18 U.S.C.

§ 3161(h)(7)(A). District courts have broad discretion to 

exclude time under the ends-of-justice provision, and the 

severity of the pandemic’s impact on trial court operations 

cannot be doubted. But the Supreme Court has emphasized 

the importance of the constitutionally guaranteed right to a 

speedy trial and has cautioned that the “strategy of [the endsof-justice provision] is to counteract substantive 

openendedness with procedural strictness.” Zedner, 547 

U.S. at 509.

To exclude time under the ends-of-justice exception, the 

district court must “set forth, in the record of the case, either 

orally or in writing, its reasons” for doing so. 28 U.S.C. § 

3161(h)(7)(A). The STA provides four “factors, among 

others, which a judge shall consider” when making an endsof-justice determination, including “[w]hether the failure to 

grant such a continuance in the proceeding would be likely 

to make a continuation of such proceeding impossible, or 

result in a miscarriage of justice.” Id. § 3161(h)(7)(B). The 

court must also consider relevant non-statutory factors, see

United States v. Lloyd, 125 F.3d 1263, 1269–71 (9th Cir. 

1997), and the Supreme Court has unambiguously cautioned 

that this inquiry entails individualized, case-specific 

findings, see Zedner, 547 U.S. at 499; see also United States 
32 UNITED STATES V. OROZCO-BARRON

v. Ramirez-Cortez, 213 F.3d 1149, 1154 (9th Cir. 2000) 

(requiring a “particularized inquiry as to the actual need and 

reasons for a continuance”); United States v. Jordan, 915 

F.2d 563, 565 (9th Cir. 1990) (“We have insisted that any 

continuance granted under [the ends-of-justice provision] 

must be based on ‘specific factual circumstances.’” (quoting 

United States v. Martin, 742 F.2d 512, 514 (9th Cir. 

1984))).1 

Orozco-Barron did not receive a trial until eleventh 

months after he was charged with a single count of a 

nonviolent offense—illegal reentry—and he was jailed the 

entire time he awaited trial. In concluding that this delay did 

not violate the STA, the district court relied on a series of 

Chief Judge Orders (CJOs) that suspended all criminal trials 

in the Southern District of California due to the COVID-19 

pandemic. For 93 of the 110 days of pre-trial detention at 

issue in Orozco-Barron’s case, the Southern District was 

conducting jury trials according to its District Trial 

Reopening Plan.2

1 See also United States v. Torres, 995 F.3d 695, 703 (9th Cir. 2021) 

(“[T]he plain language of the § 3161(h)(7) ends-of-justice analysis 

necessarily includes consideration of a defendant’s detained status.”); 

Lloyd, 125 F.3d at 1269 (reversing an exclusion of time when the district 

court should have considered whether the parties “actually want[ed] and 

need[ed] a continuance, how long a delay [was] actually required, what 

adjustments [could have been made] with respect to the trial calendars,” 

and other factors).

2 On August 24, 2020, the Southern District adopted a “District Trial 

Reopening Plan” providing that jury trials should resume on August 31, 

2020. The first criminal jury trial went forward on September 1, 2020. 

See United States v. Medina-Suarez, Case No. 19-CR-03192-AJB (S.D. 

Cal. Sept. 1, 2020), ECF No. 62.
UNITED STATES V. OROZCO-BARRON 33

The majority affirms the denial of Orozco-Barron’s 

motion to dismiss for violation of the STA by overlooking 

that trials had resumed in the Southern District during most 

of the time he was in jail awaiting trial. The majority also 

misreads Olsen and disregards that the district court made no 

case-specific findings concerning the circumstances of 

Orozco-Barron’s charged offense and detention. Its 

reasoning runs contrary to 18 U.S.C. § 3161(h)(7). 

My colleagues offer various theories to affirm the district 

court’s order denying Orozco-Barron’s motion to dismiss, 

but none of them withstand scrutiny. First, the majority 

relies on Olsen to conclude that “a district court may 

properly rely on a generally applicable circumstance [here, 

the pandemic] to grant an ends of justice continuance, and 

need not make individualized determinations.” See Maj. Op. 

at 27. At this first step, the majority errs in two ways: (1) it 

overlooks that the question presented in Olsen was the 

district court’s statutory interpretation of the STA, not the 

interpretation of the general orders that suspended jury trials 

after the pandemic broke out; and (2) it skips over the facts 

that Orozco-Barron was detained pre-trial and nearly all of

the excluded time at issue in this case occurred after jury 

trials had resumed. Next, the majority asserts that the district 

court did “consider[] the relevant statutory and non-statutory 

factors when deciding to grant a continuance,” Maj. Op. at 

21, but this assertion is contrary to the record. Finally, the 

majority suggests that Olsen allows case-specific factors to 

be considered in the first instance on appeal. Maj. Op. at 26. 

This theory fails because Supreme Court precedent does not 

permit harmless-error review of ends-of-justice exclusions. 

See Zedner, 547 U.S. at 508–09. 

The suspension of criminal trials during the pandemic 

was an extraordinary measure and we have scant case law 
34 UNITED STATES V. OROZCO-BARRON

addressing the application of the STA to protracted 

emergency closures or the reopening of courts after 

emergency closures.3 In my view, the STA and controlling 

precedent required case-specific, on-the-record findings in 

order to invoke the ends-of-justice exception and stop the 

speedy trial clock once trials resumed. Unfortunately, the 

district court’s brief discussion did not include such findings 

or the balancing the STA requires. 

II

Orozco-Barron was arrested for illegal reentry, 8 U.S.C. 

§ 1326, on July 17, 2020. He was charged on August 13, 

2020 and was ultimately convicted in a one-day trial held 

nearly a year later, on July 13, 2021. Orozco-Barron was 

detained during the 361 days that passed between his arrest 

and trial. At issue on appeal is whether the district court 

properly excluded the 110-day period from August 14, 2020 

through December 1, 2020. 

The Chief Judge of the Southern District of California 

issued CJO 18 when the COVID-19 pandemic began in 

March 2020. That order temporarily suspended criminal 

trials for 30 days and provided that this “period of 

suspension” was “excluded under the Speedy Trial Act” 

because “[the] continuances serve the ends of justice and 

outweigh the interests of the public, of the government, and 

3 The majority interprets cases from the Sixth, Eighth, and Tenth Circuits 

as allowing district courts to grant ends-of-justice continuances based 

solely on general orders suspending all jury trials. See Maj. Op. 12. 

None of those cases discuss application of the STA where jury trials have 

resumed on a limited basis in the same courthouse. See United States v. 

Keith, 61 F.4th 839, 844 (10th Cir. 2023); United States v. Leveke, 38 

F.4th 662, 667 (8th Cir. 2022); United States v. Roush, No. 21-3820, 

2021 WL 6689969, at *1–2 (6th Cir. Dec. 7, 2021).
UNITED STATES V. OROZCO-BARRON 35

of criminal defendants in a speedier trial.” See 18 U.S.C. 

§ 3161(h)(7)(A). Between March and December 2020, CJO 

18 was extended on a monthly basis. During the period 

relevant to this appeal, August through December 2020, 

CJOs 34, 40, 47, and 50 extended CJO 18 for four additional 

30-day periods. Each of these CJOs found that extending 

CJO 18 “serve[d] the ends of justice under 18 U.S.C. 

§ 3161(h)(7)(A).” During most of the pre-trial period in 

Orzoco-Barron’s case, a “District Trial Reopening Plan” was 

in effect pursuant to CJO 36, allowing a small number of 

jury trials to proceed beginning on August 31, 2020. The 

Southern District conducted a total of fourteen trials under 

this plan before December 2020. 

No developments occurred in Orozco-Barron’s case 

between his arraignment in August and a hearing held on 

October 21, 2020, when the district court postponed setting 

a trial date for approximately four weeks because the 

government had not yet produced documents pertaining to 

Orozco-Barron’s immigration history. On November 13, 

2020, the district court entered a minute order providing that 

“[d]ue to the Court’s trial schedule, the Status Trial Setting 

set for 11/18/2020 is vacated and continued to 12/2/2020.” 

The order also noted without explanation that the time 

between November 18 and December 2 was excluded under 

the STA’s ends-of-justice provision. 

The parties agree that the period between December 2, 

2020 and May 19, 2021, was validly excluded from the STA 

clock due to continuances or pending motions that 

automatically excluded time. The government assumes for 

purposes of appeal that the STA clock ran in the 33-day 

period between May 20 and June 21, 2021. Thus, if the delay 

between August 13 and December 2, 2020 is counted, a total 

of 143 days had elapsed on the STA clock by June 21, 2021, 
36 UNITED STATES V. OROZCO-BARRON

and Orozco-Barron’s right to a speedy trial was violated. 

See 18 U.S.C. § 3161(c)(1). 

On June 21, 2021, nearly a year after he was first 

arrested, Orozco-Barron moved to dismiss his illegal reentry 

charge pursuant to the STA. The district court rejected 

Orozco-Barron’s argument that 143 non-excludable days 

had passed, ruling that “[a]ll of that time was excluded under 

the [CJOs].” When the government urged that the court 

could “take a belt and suspenders approach” by 

“supplement[ing] its findings,” the district court stated that 

it was “rel[ying] on the pendency of [the] chief judge orders” 

to deny Orozco-Barron’s motion to dismiss. The court 

briefly explained that the CJOs were issued because various 

public health guidelines requiring social distancing made it 

difficult to select a jury or hold trials during the early months 

of the COVID-19 pandemic. The court acknowledged that 

jury trials were not suspended altogether between August 

and late November 2020, but observed that the number of 

jury trials was limited to three per week, only one of which 

could be for an in-custody case, and judges had to compete 

for slots. Based on the CJOs, the district court concluded, 

“[T]he bottom line was that it was impossible, a fact the 

Ninth Circuit recognized in Olsen, for the Court to convene 

Mr. Orozco’s jury trial any time before [July 13, 2021].”

The district court misread Olsen. Our decision there did 

not endorse a rule that the existence of a CJO alone could 

justify the indefinite delay of an incarcerated defendant’s 

right to trial. To the contrary, Olsen explained that the 

district court in that case had erred by interpreting the STA 

to require denial of the government’s motion to continue 

because conducting a trial was not physically impossible 

during the pandemic. 21 F.4th at 1045. 
UNITED STATES V. OROZCO-BARRON 37

In Olsen, the district court dismissed with prejudice 

serious charges against a physician who was indicted after a 

six-year investigation on thirty-four counts related to the 

unlawful distribution of opioids. Id. at 1040, 1043–44. The 

government alleged that Dr. Olsen’s distribution of 

dangerous combinations and quantities of opioids resulted in 

multiple deaths. Id. at 1042. Dr. Olsen was not detained 

pending trial—in fact, despite the gravity of the charges 

against him, he had spent no time at all in pre-trial 

detention—and he had been granted eight continuances, 

postponing trial for over three years, prior to invoking his 

speedy trial rights when the COVID-19 pandemic broke out. 

Id. at 1040, 1042. The last continuance prior to the onset of 

the pandemic was granted despite the fact that the 

government was ready for trial, and it was granted over the 

government’s objection. Id. at 1042. 

Relying on the statutory language in § 3161(h)(7)(B)(i), 

the district court in Olsen concluded that an ends-of-justice 

exclusion was permissible only if trial was literally 

“impossible.” Id. at 1043–44. Because a state court across 

the street from the Central District courthouse in Santa Ana 

was conducting trials and the federal court had convened a 

grand jury, the district court reasoned that “it [was] simply 

not a physical or logistical impossibility to conduct a jury 

trial” and, without conducting a miscarriage-of-justice 

analysis, dismissed with prejudice all the charges against 

Olsen pursuant to the STA. Id. at 1043. We reversed and 

ordered the district court to reinstate the indictment on 

remand. Id. at 1049. 

Olsen explained that the district court read 

§ 3161(h)(7)(B)(i) incorrectly because that provision directs 

district courts to consider “‘[whether] the failure to grant’ a 

continuance would make continuing the proceedings 
38 UNITED STATES V. OROZCO-BARRON

impossible.” Id. at 1045. The “impossibility” provision in 

§ 3161(h)(7)(B)(i) actually undercut the district court’s 

decision in Olsen because the denial of a continuance made 

a trial on the merits impossible by resulting in the expiration 

of the remaining time on the STA clock and dismissal of the 

charges. Id. at 1045. Separately, the district court erred by 

failing to consider whether denying a continuance would 

“result in a miscarriage of justice.” Id. at 1046 (quoting 18 

U.S.C. § 3161(h)(7)(B)(i)). 

The issue presented in Olsen was a matter of statutory 

interpretation, not whether the Central District’s general 

orders could indefinitely suspend jury trials. See id. at 1044–

45, 1049 (reversing the district court’s dismissal because its 

interpretation of the ends-of-justice provision was 

incorrect); id. at 1053 (Murguia, C.J., and Christen, J., 

concurring in the denial of rehearing en banc) (observing 

that the question presented was whether the district court 

misinterpreted the STA). The district court in Olsen 

disregarded the general orders and relied only on its 

interpretation of the STA. In stark contrast, the district court 

in Orozco-Barron’s case relied entirely on the CJOs, even 

though Orozco-Barron was accused of a nonviolent offense, 

he was jailed the entire time he awaited trial, and jury trials 

had resumed on a limited basis in the Southern District for 

most of the pre-trial period at issue. These differences 

between Olsen and Orozco-Barron’s case sharply illustrate 

why case-specific considerations are necessary for the 

balancing required by the STA. 

I agree with the majority that the STA does not require a 

district court to incant magic words, but our precedent 

requires that a reviewing court assess the validity of an STA 

exclusion based on the actual reasons offered for a district 

court’s ends-of-justice conclusion, not post hoc reasons that 
UNITED STATES V. OROZCO-BARRON 39

could have justified the exclusion. See Ramirez-Cortez, 213 

F.3d at 1154 (reversing an ends-of-justice exclusion when, 

after a magistrate judge granted “blanket continuances” for 

cases pending in a “fast track” program, the district court 

acknowledged the lack of individualized findings, yet 

inferred case-specific reasons supporting the exclusion). 

The district court’s order denying Orozco-Barron’s motion 

to dismiss solely relied on the CJO orders suspending jury 

trials, without considering the specific circumstances of 

Orozco-Barron’s case.

Undeterred by the issue actually presented in Olsen and 

our result there, the majority shortcuts the analysis required 

by the STA and decides that because CJOs limited jury trials 

in the Southern District during the pre-trial phase of OrozcoBarron’s case, the CJOs alone were sufficient to tip the endsof-justice balance in favor of continuing the trial. The 

majority suggests this is so regardless of Orozco-Barron’s 

individual circumstances and regardless of the fact that the 

Southern District, unlike the Central District in Olsen, was 

conducting a limited number of jury trials during the time 

period at issue.4 

The majority’s decision is incorrect. The STA’s endsof-justice provision requires “balancing . . . whether the ends 

of justice served by granting a continuance outweigh the best 

4 The majority relies on Olsen to side-step the Southern District’s limited 

reopening of jury trials, reasoning that “Olsen itself recognized that the 

mere fact that a district court could physically hold a trial (and that other 

courts were doing so) would not prevent a court from granting an ends 

of justice continuance.” Maj. Op. at 23 n.13. What the majority ignores 

is that, unlike in Olsen, the judges of the Southern District had decided 

some jury trials could be safely conducted in their own courthouse during 

most of the pre-trial period at issue in Orozco-Barron’s case.
40 UNITED STATES V. OROZCO-BARRON

interest of the public and the defendant in convening a 

speedy trial,” which necessitates consideration of casespecific information. 18 U.S.C. § 3161(h)(7)(A); see

Zedner, 547 U.S. at 499; Ramirez-Cortez, 213 F.3d at 1154. 

Olsen did not disturb, and could not have disturbed, this 

statutory requirement. See 21 F.4th at 1047. Indeed, Olsen

observed that the district court there also erred by failing to 

consider case-specific factors and suggested a nonexhaustive list of factors for courts to consider when ruling 

on similar motions.5 Id. at 1046–47. 

B 

The majority fails to explain its departure from our 

precedent. It first suggests that the district court could have 

permissibly relied solely on the CJOs—interpreting Olsen to 

provide that in “unusual cases” like the COVID-19 

5 Olsen suggested a list of non-exhaustive factors that, in the context of 

the COVID-19 pandemic, “facilitate[] the proper balancing of whether 

the ends of justice served by granting a continuance outweigh the best 

interest of the public and the defendant in convening a speedy trial”: 

(1) whether a defendant is detained pending trial; (2) 

how long a defendant has been detained; (3) whether 

a defendant has invoked speedy trial rights since the 

case’s inception; (4) whether a defendant, if detained, 

belongs to a population that is particularly susceptible 

to complications if infected with the virus; (5) the 

seriousness of the charges a defendant faces, and in 

particular whether the defendant is accused of violent 

crimes; (6) whether there is a reason to suspect 

recidivism if the charges against the defendant are 

dismissed; and (7) whether the district court has the 

ability to safely conduct a trial. 

Id. at 1046–47.
UNITED STATES V. OROZCO-BARRON 41

pandemic, “a district court may properly rely on a generally 

applicable circumstance to grant an ends of justice 

continuance, and need not make individualized 

determinations.” Maj. Op. at 27. In support, the majority 

analogizes to United States v. Paschall, 988 F.2d 972 (9th 

Cir. 1993), where we upheld an eight-day ends-of-justice 

continuance of grand jury proceedings due to a major 

snowstorm in Portland. Id. at 27 (citing Paschall, 988 F.3d 

at 973–74). We also upheld a two-week continuance in 

Furlow, after Mt. St. Helens erupted. 644 F.2d at 767–68. 

Paschall and Furlow concerned only brief and finite 

delays of proceedings. The outcomes in those cases cannot 

be stretched to accommodate across-the-board ends-ofjustice exclusions for all pandemic-related STA 

continuances, for months or even years on end, especially 

when jury trials had resumed on a limited basis. Because 

there was no limit to the number of 30-day suspensions the 

pandemic may have required, the majority’s reasoning 

would allow indefinite suspensions of criminal jury trials 

based solely on blanket general orders. As Olsen 

recognized, if the pandemic continued long enough, the need 

to honor speedy trial rights could require dismissal of at least 

some cases. See Olsen, 21 F.4th at 1052, 1057 (Murguia, 

C.J., and Christen, J., concurring in the denial of rehearing 

en banc).

The majority’s second theory is that the district court did 

in fact “consider[] the relevant statutory and non-statutory 

factors when deciding to grant a continuance.” Maj. Op. at 

21. The record shows otherwise. The district court relied 

solely on the CJOs in place during the disputed time period 

and its understanding that Olsen sanctioned reliance on the 

CJOs alone. Critically, the district court’s ruling does not 

reflect consideration of Orozco-Barron’s detained status 
42 UNITED STATES V. OROZCO-BARRON

during the pre-trial period. See Torres, 995 F.3d at 704 

(“[W]e can envision no circumstance in which a district 

court could properly fail to consider a detained defendant’s 

status when addressing a motion to continue the trial.”); see 

also Olsen, 21 F.4th at 1063 (Bumatay, J., concurring in the 

denial of rehearing en banc) (“[T]his case would be very 

different if Olsen had been detained during the COVID-19 

pandemic and had suffered the deprivation of his liberty 

while the California federal district court shut down 

indefinitely.”). 

Finally, the majority opinion posits that appellate courts 

may consider case-specific “non-statutory factors on appeal 

in the first instance.” Maj. Op. at 26. The majority relies on 

Olsen for this assertion, but Olsen did not signal that an 

otherwise deficient ends-of-justice exclusion could be 

affirmed based on post hoc reasoning. Rather, Olsen

discussed case-specific information raised by the 

government in its motion for a continuance when explaining 

that the district court erred, in part because it failed to 

consider that highly relevant information when conducting 

ends-of-justice balancing. See 21 F.4th at 1042–44, 1046–

48. The majority’s suggested approach would amount to 

harmless-error review, which the Supreme Court has 

cautioned does not apply to appellate review of ends-ofjustice exclusions. In Zedner, the Supreme Court held that 

an ends-of-justice exclusion cannot be justified by post hoc 

reasoning: 

Applying the harmless-error rule would . . . 

undermine the detailed requirements of the 

provisions regulating ends-of-justice 

continuances. The exclusion of delay 

resulting from an ends-of-justice continuance 
UNITED STATES V. OROZCO-BARRON 43

is the most open-ended type of exclusion 

recognized under the Act and, in allowing 

district courts to grant such continuances, 

Congress clearly meant to give district judges 

a measure of flexibility in accommodating 

unusual, complex, and difficult cases. But it 

is equally clear that Congress, knowing that 

the many sound grounds for granting endsof-justice continuances could not be rigidly 

structured, saw a danger that such 

continuances could get out of hand and 

subvert the Act’s detailed scheme. The 

strategy of § 3161(h)([7]), then, is to 

counteract substantive openendedness with

procedural strictness. This provision 

demands on-the-record findings and specifies 

in some detail certain factors that a judge 

must consider in making those findings. 

Excusing the failure to make these findings 

as harmless error would be inconsistent with

the strategy embodied in § 3161(h). 

Id. at 508–09. Our circuit precedent also requires that the 

district court’s rationale for an ends-of-justice exclusion be 

explicitly set forth in the district court record, not supplied 

by the reviewing court. See United States v. McCarns, 900 

F.3d 1141, 1144 (9th Cir. 2018) (providing that the district 

court’s “reasoning [must be] sufficient to justify excluding 

the continuance from the Act’s seventy-day limit”); 

Ramirez-Cortez, 213 F.3d at 1154–55 (holding that a district 

court could not supply findings that might have supported an 

ends-of-justice continuance when a magistrate judge granted 

the continuance without making the requisite findings in the 

first instance).
44 UNITED STATES V. OROZCO-BARRON

* * * 

When assessing Orozco-Barron’s STA claim, the district 

court did not make case-specific findings and relied solely 

on CJOs that applied to every defendant in the Southern 

District of California. Yet jury trials had resumed on a 

limited basis. Given the importance of the speedy trial right 

and the circumstances of this case, I conclude that the STA 

required the district court to make case-specific findings. 

The district court may have permissibly reached the same 

result if it had conducted the required balancing, but we are 

not permitted to “speculate as to the ‘findings’ that might 

support an ‘ends of justice’ continuance” on appeal. 

Ramirez-Cortez, 213 F.3d at 1155. I would therefore reverse 

the order denying Orozco-Barron’s motion to dismiss under 

the STA, and remand for the district court to determine 

whether the dismissal should be with or without prejudice.6

6 Even if an STA motion is granted and charges are dismissed, whether 

charges are dismissed with prejudice is a separate question. At oral 

argument in Orozco-Barron’s case, defense counsel conceded that the 

government would have had time to re-indict Orozco-Barron if his 

charges were dismissed without prejudice. See 18 U.S.C. § 3162(a)(2) 

(“In determining whether to dismiss the case with or without prejudice, 

the court shall consider, among others, each of the following factors: the 

seriousness of the offense; the facts and circumstances of the case which 

led to the dismissal; and the impact of a reprosecution on the 

administration of this chapter and on the administration of justice.”); 

United States v. Taylor, 487 U.S. 326, 333–34 (1988) (holding that the 

court should also consider prejudice to the defendant from the delay).