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United States of America v. Francisco Alvarez-Perez

December 22, 2010

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
FRANCISCO ALVAREZ-PEREZ, DEFENDANT-APPELLANT.



Appeal from the United States District Court for the Southern District of California D.C. No. 3:07-CR-01661-H-1 Marilyn L. Huff, District Judge, Presiding

The opinion of the court was delivered by: Singleton, Senior District Judge:

FOR PUBLICATION

OPINION

Argued and Submitted

August 4, 2010-Pasadena, California

Before: Alex Kozinski, Chief Judge, Kim McLane Wardlaw, Circuit Judge, and James K. Singleton, Senior District Judge.*fn1

Opinion by Judge Singleton

OPINION

Francisco Alvarez-Perez ("Alvarez") appeals his conviction of being a deported alien found in the United States in violation of 8 U.S.C. § 1326. Alvarez contends that his prosecution violated the Speedy Trial Act ("STA") because the permitted 70-day period was exceeded.

FACTS

The material facts are largely undisputed. Alvarez was arrested on May 12, 2007. On May 15, 2007, he was charged in a complaint with a violation of 8 U.S.C. § 1326. The parties immediately began to discuss a disposition, apparently intending to proceed under the district's fast-track procedure. Alvarez waived his right to indictment, the government filed an information, and Alvarez entered a plea of not guilty. Alvarez filed a written notification of his intent to plead guilty, and the court scheduled a change of plea hearing. Sometime between June 12 and June 27 Alvarez decided not to change his plea to guilty. In response, on June 27, 2007, the government filed an indictment obtained from the Grand Jury charging Alvarez with violations of 8 U.S.C. § 1326, in a separate proceeding with a separate case number. The change of plea hearing was vacated on July 6, 2007, and the information in the previous case remained pending. Alvarez was arraigned on the indictment on July 18, 2007, and at that time, the information was dismissed without prejudice at the government's request.

On August 14, 2007, Alvarez gave a second notice of intent to change his plea, and a hearing was scheduled for the following day, August 15, 2007. At the hearing Alvarez again changed his mind and informed the court that he did not want to plead guilty. A status conference was set for August 24, 2007, to determine whether Alvarez wished to file motions. At that hearing the district court, relying on the July 18, 2007, arraignment to trigger the STA clock, specified September 26, 2007, (70 days after July 18) as the last day for trial under the STA. Alvarez did not object to this date. On September 10, 2007, Alvarez began to file his pretrial motions. The parties agree that all time between September 10, 2007, and when Alvarez was tried on January 20, 2009, was properly excluded. 18 U.S.C. § 3161.

STANDARD OF REVIEW

We review the district court's disposition of an STA issue for clear error as to factual findings and de novo as to application of legal standards. United States v. Henderson, 746 F.2d 619, ...


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