UNITED STATES of America, Appellee, v. Dario DeLEON, a/k/a Rafael Garcia, Defendant, Appellant.
No. 04-1592
United States Court of Appeals, First Circuit.
April 7, 2006
Heard Feb. 8, 2006.
The district judge‘s explanation of why the sentence he chose met the requirements of
[T]his is one of those cases ... where I think the guidelines produce a sentence that is reasonable and perfectly consistent with the factors enumerated in the statute,
3553(a) . I think all of those factors have been adequately taken into account by the guidelines, and the guideline range, as I say, produces a reasonable sentence.
This language treads close to an assumption that the guideline sentence is automatically reasonable, an assumption that is no longer viable, see Jimenez-Beltre at 519, but we think that under the circumstances the district court acted reasonably in imposing the sentence it did. At the sentencing hearing Alli identified no factors (other than the challenges to the judge‘s guideline calculations already discussed) that would arguably militate in favor of a sentence below the guideline range of 18 to 24 months. Nor did the government raise any factors in support of an above-range sentence. In this situation, we do not fault the judge for not speaking further about the
The final contention on appeal is that Alli‘s sentence is unreasonable because it is longer than necessary to effectuate the statutory goals of criminal punishment. See
III.
For the reasons stated above, the defendant‘s sentence is affirmed.
Randall E. Kromm, Assistant United States Attorney, with whom Michael J. Sullivan, United States Attorney, was on brief, for appellee.
Before SELYA, LYNCH, and LIPEZ, Circuit Judges.
LYNCH, Circuit Judge.
It is a crime for an alien to re-enter the country after he has been deported, unless he has the express permission of the Attorney General of the United States (or unless such permission is unnecessary in his case for other reasons).
Somewhat unusually in the criminal law, there is an exception provided by statute,
Rafael Garcia was convicted after a jury trial of the crime of illegal re-entry and was sentenced on April 29, 2004 to 33 months’ imprisonment and two years of supervised release; he was released from prison on September 2, 2005, and was in immigration custody awaiting deportation as of the close of briefing in this appeal.
His appeal turns largely on attacking rulings by the district court denying his motion to dismiss the indictment under
The one fact that permeates the analysis in this case, and that affects many of the issues, is that at the time of his original 1995 conviction for sale of crack cocaine and consequent deportation, Garcia gave the false name of Dario DeLeon. He chose to hide from the Immigration and Naturalization Service (INS)2 both his true identity and the fact that he had a green card in his true name (Rafael Garcia). Indeed, he asked for a prompt deportation and took no appeal. The district court found as a matter of fact that this was a deliberate scheme of deception on his part so that he could illegally re-enter the country by using his green card and his real name. This is exactly what he did a mere two months after his deportation; he then lived in the United States for nearly eight years as Rafael Garcia. In March 2003, the government learned for the first time that Rafael Garcia was the same person as the deported DeLeon and started these proceedings.
We affirm Garcia‘s conviction and sentence in all respects and note these key points in our holdings. First, in performing the collateral attack analysis under
I.
The following facts are undisputed except where otherwise noted.
Garcia, a native of the Dominican Republic, came to Puerto Rico in 1981 or 1982, when he was approximately twelve years old. He obtained temporary permanent resident status in 1987 and lawful permanent resident status in 1990. He later moved to Massachusetts.
In late February 1995, Garcia was arrested in Quincy, Massachusetts and charged with, among other things, selling crack cocaine to undercover officers. Garcia, who was carrying no identification, told the police his name was Dario DeLeon. He also gave a false birth date and lied about his father‘s name.
Garcia, who said he spoke no English, appeared at least twice in Quincy District Court, accompanied both times by an attorney and at least once by an interpreter. According to a notation in the court records, Garcia was “[a]dvised of right to counsel” and “[a]dvised of alien rights.” He never told the judge or anyone else his real name. On March 28, still under the name DeLeon, Garcia entered a plea to the drug charge3 and was sentenced to time served, thirty days’ incarceration.
Garcia was then transferred to the custody of the INS. There he again identified himself as DeLeon and consistently denied having legal status. He denied having a visa or a Social Security number and claimed to be unemployed.
The INS Order to Show Cause issued to Garcia (under the name of DeLeon), which was written in both English and Spanish, informed him, among other things, that he could “seek an attorney or representative, if [he] desire[d] to be represented.” It also informed him that if he was not satisfied with the eventual decision of the Immigration Judge (IJ), he had the right to appeal. Garcia signed a form (using the name DeLeon) which stated that the Order to Show Cause had been read to him in Spanish. Garcia also signed (as DeLeon) a form that stated, in Spanish, that he was “not a citizen of the United States,” that he “d[id] not wish to apply for relief from deportation,” and that he “want[ed] to be deported as soon as possible.” The form further stated: “This request is completely voluntary. I have not been coerced, threatened, or enticed in any way....”
Prior to his appearance before the IJ, Garcia was provided with a “Notice of Rights” in Spanish. The notice had two relevant sections. The first, entitled “Right to be Represented by an Attorney or Representative,” stated:
If you have any questions regarding any of your rights you can speak with an attorney or representative who can explain your rights, including any relief that may be available to you from deportation. The officer who gave you this notice will give you a list of organizations that can provide legal information. Representatives from these organizations will speak to you for free or for a small fee, and some of them might speak your language.... You may contact a lawyer or other legal representative at this time or at any other time prior to your departure from the United States.
The second section, entitled “Right to a Hearing Before an Immigration Judge,” stated in relevant part:
If you do not want to return to your country, you have a right to a hearing before an immigration judge, who will determine whether you can remain in the United States. If you request a hearing, you may be represented at the
hearing by a lawyer or other legal representative at your own expense. If you cannot afford to pay a lawyer, you may contact an organization on the list of free legal services. For example, if you are married to a U.S. citizen or permanent resident, or have lived in the U.S. for seven years or longer, and have not been convicted of a serious crime, you may be eligible for relief from deportation.
(emphasis in the original). Garcia signed the bottom of the form (as DeLeon), indicating he had read it.
Garcia also received, as part of the Order to Show Cause, a page of written information entitled “Notice of Rights and Consequences.” It stated, in both English and Spanish: “You will be given a list of organizations, attorneys and other persons who have indicated their availability to represent aliens in these proceedings. Some of these persons may represent you free of charge or for a nominal fee.” It noted that hearings before the IJ were typically scheduled no sooner than fourteen days after the issuance of the Order to Show Cause “to allow you to seek an attorney or representative, if you desire to be represented.”
On April 26, 1995, Garcia appeared before an IJ in Oakdale, Louisiana. A court interpreter was present. The following colloquy ensued:
IJ: Mr. DeLeon, sir, this is your first appearance in my court, Immigration Court. As such, you‘re entitled to delaying your case, if you wish, to better prepare your case or to acquire an attorney or we may go forward today, whichever you desire.
Garcia: I cannot afford an attorney. I would like to—I would like to ask for deportation.
IJ: Do you understand the nature of Immigration Court, sir?
Garcia: Yes.
At that point Garcia took an oath to testify truthfully. The colloquy then continued:
IJ: Sir, do you understand that you have the right to have an attorney represent you at no expense to the government?
Garcia: Yes.
....
IJ: And you understand, sir, that you have the right to appeal any decision of this court to a higher court in Washington, DC, and you do that through the Federal Court system of this country?
Garcia: Yes.
IJ: Sir, do you acknowledge previous receipt of the Form 6618, the legal aid sheet ... as well as your criminal conviction records?
Garcia: Yes.
Later, Garcia stated (still under oath) that he was not a U.S. citizen or national and that he entered the United States in 1990 without inspection. The IJ found Garcia deportable. The IJ asked the government attorney if he was “aware of any relief” from deportation, to which the government replied: “No, Your Honor.” The IJ ordered Garcia deported to the Dominican Republic. He asked Garcia: “Do you wish to accept that decision or is there an appeal?” Garcia replied: “I accept it.”
B. Garcia‘s Re-entry and Second Conviction
Soon after Garcia‘s June 1995 deportation, his sister mailed his green card and passport from Massachusetts to him in the Dominican Republic. Less than two months later, in late July 1995, Garcia used these documents to re-enter the United States via Puerto Rico under his real
Garcia eventually moved back to Massachusetts, where he lived under his real name for several years. In March 2003, Garcia argued with two people at a store in Massachusetts. After he left the store, he noticed that the two were following his car. He decided to go to a police station. The police asked him for identification, which he provided (under his real name). The police then arrested him on an outstanding warrant for operating an unregistered vehicle. Garcia was fingerprinted, and the prints were sent to the FBI for a check of the Bureau‘s database; at that point, authorities realized that Garcia and “DeLeon” were one and the same.
Garcia was charged with the federal crime of illegal re-entry in violation of
After a four-day jury trial, Garcia was convicted. On April 29, 2004, the district court sentenced him to 33 months’ imprisonment (with credit for time served) and 24 months of supervised release. Garcia completed his term of imprisonment on September 2, 2005, during the pendency of this appeal, and was transferred to INS custody to await deportation.
II.
Garcia‘s primary argument on appeal is that the district court erred when it found that he failed to meet the collateral attack standard under
Subsection
- the alien exhausted any administrative remedies that may have been available to seek relief against the order;
- the deportation proceedings at which the order was issued improperly deprived the alien of the opportunity for judicial review; and
- the entry of the order was fundamentally unfair.
Garcia argued before the district court that he was denied the right to counsel during the 1995 deportation proceeding, and therefore that he met prongs (2) and (3) and that he was excused from meeting prong (1). He argued that he was illiterate in both English and Spanish in 1995, and so the notices informing him of his
Garcia also argued that he met the requirements of
The district court rejected Garcia‘s collateral attack, first in a pretrial opinion and order and again after the verdict. The court skipped over the exhaustion and judicial review requirements of
As to the right to counsel, the court found that Garcia had been “notified twice in writing of his right to representation,” that the IJ had informed him of his right to obtain counsel yet he had declined, and that he had told the IJ he received the legal aid sheet. In the post-verdict order, the court explicitly found not credible Garcia‘s testimony during a pretrial motion hearing that he had never received the legal aid sheet, and added that even if he had not received it, that would not render the proceedings unfair, because he told the IJ he had. As to Garcia‘s purported illiteracy, the district court wrote that it was “certainly relevant to a due process inquiry” but that “it does not excuse [Garcia‘s] failure to notify the immigration judge that he wanted help in finding an attorney or that he needed help in reading a list of lawyers.”
Finally, and importantly, the district court concluded that Garcia could not in any event demonstrate prejudice, as required under
On appeal, Garcia presents the broad argument that at his deportation hearing, “the government merely went through the motions and failed to give meaning to [his] rights.” He says this is because the IJ “failed to determine whether Mr. Garcia
These arguments are an attempt to ignore the district court‘s findings of fact.6 The district court explicitly found that Garcia had been advised multiple times of his right to obtain counsel during the immigration proceedings, that his testimony that he never received the legal aid list was not credible, that he never said he wanted a lawyer, and that he never requested time to find a lawyer. The court also found that it was quite unlikely Garcia wanted a lawyer; to further his scheme of fraudulent re-entry, he wanted to be quickly deported under the false name. Those factual findings required a finding that Garcia could demonstrate neither prejudice nor fundamental unfairness. No effort is made to show that the findings are clearly erroneous.
Nonetheless, we have given Garcia the benefit of reviewing the district court‘s findings against the evidence, and there was no error at all. The district court‘s ruling that the third precondition for collateral attack was not met is unassailable.
We add that ordinarily, the
Garcia argues that just such an exception exists. He relies on cases from other courts which have concluded that the
Whether or not this court would create such an exception to the exhaustion requirement, a question on which we take no view, the facts here preclude the argument. Garcia was told at least twice—once when the Order to Show Cause was read to him, and again by the IJ—that he had the right to appeal. He was asked again by the IJ later in the proceeding whether he desired to appeal. He stated that he did not; he also signed a form indicating that he did not wish to contest deportation. Given this record, Garcia‘s waiver was knowing and intelligent. See United States v. Johnson, 391 F.3d 67, 75 (2d Cir. 2004) (finding knowing waiver where the IJ “clearly advised” the alien of his right to appeal); Martinez-Rocha, 337 F.3d at 569 (finding knowing waiver in part because the alien signed a form, read to him in Spanish, stating that he did not wish to contest the charges). Further, the district court found on ample evidence that Garcia never had any intention of appealing, because he wanted to be deported as quickly as possible so that he could re-enter under his real name. See Martinez-Rocha, 337 F.3d at 569 (finding of knowing waiver was supported by an INS agent‘s testimony that the alien “had expressed a desire to return to Mexico as soon as possible“).
Garcia argues that his waiver was not knowing and intelligent because the IJ did not tell him he was eligible for discretionary relief and the government attorney “affirmatively informed [him] that he was not entitled to any discretionary relief.” Again, the argument depends on ignoring the district court‘s factual findings. It was Garcia‘s lies about his identity and his failure to disclose his green card status that hid his potential eligibility from the government and the IJ. He gets no reward for that. Cf.
In sum, Garcia knew precisely what he was doing when he decided to forgo an appeal of his 1995 deportation order; if there is an exception to the
III.
A. The Statute of Limitations
The crime of illegal re-entry is subject to a five-year statute of limitations,
“[A] deported alien who illegally reenters and remains in the United States can violate [
Garcia argues the government could have found out earlier that he was illegally in the United States and that its lack of diligence should be held against it. The argument is based on language from other courts in factually distinct cases to the effect that an alien is “found” for
The district court, in considering Garcia‘s motion to dismiss, accepted the existence of this constructive knowledge theory for purposes of analysis. It examined pre-trial affidavits and other evidence submitted by the government which stated that immigration procedures in place in 1995 did not involve checking the fingerprints of arriving green card holders like Garcia against any database of criminals or of past deportees. The district court found that based on this evidence, and on the fact that Garcia lied about his identity during the deportation process, it could not say as a matter of law that immigration officials exercising ordinary diligence should have known at the time of Garcia‘s re-entry that he previously had been deported.
We approach the question differently. This court has never adopted the theory that the government may be charged with constructive knowledge of an alien‘s illegal re-entry for purposes of
Finally, any claim that there was insufficient evidence to support the jury‘s finding of timeliness fails. The government introduced evidence at trial to the effect that it did not know Garcia had illegally re-entered the country until he was arrested in 2003; this evidence was uncontradicted. The jury had ample basis to find that it was not a lack of diligence by the government that resulted in the timing of the indictment in this case.
B. Consent to Re-enter
Garcia next argues the evidence was insufficient to support the jury‘s conclusion that he lacked the Attorney General‘s consent to re-enter the country. “In reviewing such a challenge, we consider the record evidence (and any reasonable inferences therefrom) as a whole and in the light most favorable to the prosecution, asking whether the evidence would have permitted a rational jury to find the defendants guilty of the crime charged beyond a reasonable doubt.” United States v. Downs-Moses, 329 F.3d 253, 261 (1st Cir. 2003). “‘[T]he evidence may be entirely circumstantial, and need not exclude every hypothesis of innocence....‘” United States v. Melendez-Torres, 420 F.3d 45, 49 (1st Cir. 2005) (internal quotation marks omitted) (quoting United States v. Scantleberry-Frank, 158 F.3d 612, 616 (1st Cir. 1998)).
To convict Garcia of violating
This argument is without merit. Garcia‘s own lies led to his deportation under the name DeLeon. If he had requested permission to re-enter after deportation, he would have had to do so as DeLeon (otherwise the request would have made no sense to the immigration authorities) and any such permission logically would be in the “DeLeon” file. Further, as the district court found, the evidence supports the conclusion that Garcia schemed to be deported under a false name so he could immediately re-enter using his real identity. A jury could reasonably infer that
Garcia falls back to an argument that he in fact had express permission to re-enter the country because he did so using his green card, which was issued by the Attorney General and which he says constitutes the requisite permission. As the district court said: “Under defendant‘s interpretation of the statute, he can lie about his identity ... and then re-enter with impunity using a green card under his real name. This would obviously frustrate the statutory purpose of keeping previously-deported aliens from reentering the country without the Attorney General‘s ‘express’ prior permission.” Garcia had just been deported, regardless of what name he was using at the time, and he therefore needed the Attorney General‘s contemporaneous permission before he could legally re-enter.
C. The Almendarez-Torres Issue
Garcia argues that his conviction must be vacated because the district court did not submit to the jury the question of his underlying 1995 drug conviction. He argues that the district court was required to do so because Almendarez-Torres v. United States, 523 U.S. 224 (1998), in which the Supreme Court held that the prior conviction is a mere sentencing factor for
As an initial matter, we note that Garcia seems to be mixing apples and oranges in challenging his conviction on this basis. The cases upon which he relies largely go to whether a judge may consider a prior conviction for sentencing purposes when that conviction has not been found by a jury beyond a reasonable doubt. See id. (“Innumerable criminal defendants have been unconstitutionally sentenced under the flawed rule of Almendarez-Torres....“) (emphasis added). Perhaps Garcia is making a sentencing argument.
Either way, however, Garcia‘s argument fails. Garcia stipulated to the prior conviction at trial: his counsel not only affirmatively told the jury about the fact of a prior conviction and agreed to the entry into evidence of a redacted record of the conviction, but also argued prior to trial that “evidence of [the] conviction is wholly irrelevant to [Garcia‘s] charged illegal
Further, even had Garcia not waived the issue, his precise argument has already been rejected by a panel of this court. United States v. Ivery, 427 F.3d 69, 75 (1st Cir. 2005). In Ivery, the court noted that the Supreme Court has taken care to reaffirm the “prior conviction” exception of Almendarez-Torres in all of its recent Sixth Amendment jurisprudence, and that even the Shepard majority cautioned that it “is up to the future to show” whether Apprendi eventually will be extended to require proof of prior convictions to a jury. Id. (internal quotation marks omitted) (quoting Shepard, 544 U.S. at 26 n. 5). The Ivery panel concluded: “It is not our place to anticipate the Supreme Court‘s reconsideration of its prior rulings; thus Almendarez-Torres remains binding law that we must apply until overruled by a majority of the Supreme Court.” Id. We in turn are bound by Ivery‘s holding.
D. Booker Issue As to Garcia‘s Term of Supervised Release
Garcia has now served the imprisonment portion of his sentence and is subject to a two-year term of supervised release, but is in the hands of immigration authorities and awaiting deportation, if he has not yet been deported. Nonetheless, in a long footnote in his brief on appeal, Garcia says he is entitled to be resentenced, presumably to alter the sentence of supervised release.
Garcia was sentenced under the mandatory Guidelines scheme in place prior to United States v. Booker, 543 U.S. 220 (2005). He concedes that his Booker claim was not preserved in the district court, but says he meets the “reasonable probability” standard this court requires under plain-error Booker review, United States v. Antonakopoulos, 399 F.3d 68, 75 (1st Cir. 2005), because the district judge sentenced him at the bottom of the applicable Guidelines range and stated that his case was sympathetic. The government argues that we cannot reach the Booker issue because it is moot.
It is well-settled that a convict‘s claim is not moot if he has finished his prison term but still faces supervised release or a restitution order, so long as those conditions give him “a continuing stake in the outcome of a challenge” to the sentence. United States v. Molak, 276 F.3d 45, 48 (1st Cir. 2002); see also United States v. Prochner, 417 F.3d 54, 59 n. 4 (1st Cir. 2005).
The government argues that the supervised release sentencing issue is moot on these facts. The argument is that Garcia, who is in immigration custody and facing imminent deportation from the United States, will never be subject to the supervised release portion of his sentence. The government argues that the possibility that Garcia could one day return to the United States does not change the analysis. This is because Garcia is inadmissible as a result of his 1995 cocaine conviction,
There is some case law supporting the government‘s theory. See Okereke v. United States, 307 F.3d 117, 121 (3d Cir. 2002) (finding alien‘s sentencing appeal moot where alien had been removed and could not legally reenter, and resentencing “would not provide [him] with the tangible benefit of reentry“); United States v. Mercurris, 192 F.3d 290, 294 (2d Cir. 1999) (finding moot a deported alien‘s claim that the district court erroneously deemed his crimes “aggravated felonies” because the alien “ha[d] only a quixotic chance of legally returning to the United States” and “the possibility that his aggravated felon status could make a difference to him ... is too speculative to create an Article III case or controversy“). Defendant has not, in response, identified any practical impact on him of the Booker supervised release issue. If there is one, it is not up to the appellate court to try to guess what it is. Without adopting a general rule, we hold that any Booker issue in this case is moot.
E. The Transcript Delay
A disturbing aspect of this case is the fourteen-month period it took for the court reporter to produce the trial transcripts for appeal. Unfortunately, this is a recurring problem in some districts within the circuit, and not a new one. See, e.g., United States v. Pratt, 645 F.2d 89, 91 (1st Cir. 1981) (nine-month delay in preparing a transcript).
Garcia filed a Notice of Appeal on April 30, 2004. On June 8, 2004, this court ordered the district court‘s court reporter to file, by August 9 of that year, transcripts of Garcia‘s trial and related proceedings.
The period of time until the transcript was prepared was a shared responsibility of this court, the district court, and Garcia. The court reporter was granted several extensions, without objection, which pushed the deadline back to November 1. When the transcript was not prepared by that date, this court issued an Order to Show Cause directing production of the transcripts by November 22. Several more rounds of orders and extension requests followed.
On August 11, 2005, some fourteen months after the Notice of Appeal, Garcia first moved to compel production. This court granted the motion, and the transcripts were finally filed on August 19, 2005. Garcia says this delay violated his due process right to a timely appeal, and that the remedy must be reversal of his conviction. The prosecution, which is of course not actually responsible for the transcript delay, is nonetheless deemed to be responsible, as the government candidly admits.
The concern arises where delay in the appeal due to a tardy transcript may violate the due process rights of the defendant. “[E]xtreme delay in the processing of an appeal may amount to a due process violation, and delays caused by court reporters are attributable to the government for purposes of determining whether a defendant has been deprived of due process....” United States v. Luciano-Mosquera, 63 F.3d 1142, 1158 (1st Cir. 1995) (citing United States v. Wilson, 16 F.3d 1027, 1030 (9th Cir. 1994)). However, “mere delay, in and of itself will not
Furthermore, as the Supreme Court has said in the context of pre-indictment delay, even proof of actual prejudice does not make a due process claim “automatically valid.” United States v. Lovasco, 431 U.S. 783, 789 (1977). The court “must consider the reasons for the delay as well as the prejudice to the [defendant].” Id. at 790. The showing of prejudice is therefore a threshold requirement. See id.; see also Luciano-Mosquera, 63 F.3d at 1158. The prejudice must be such as to render the proceedings “fundamentally unfair.” Lovasco, 431 U.S. at 796.
The question of what constitutes prejudice is one on which the circuits have differing views. Garcia has, relying on case law from elsewhere, argued that certain effects of delay constitute prejudice. We reject the arguments. Based on what is properly cognizable as prejudice, we hold that Garcia has not made his threshold prejudice showing.
i. Cognizable Forms of Prejudice
We have recognized two forms of possible prejudice. It is possible for delay to so impair a defendant‘s ability to present his appeal as to create prejudice to the appeal itself. Luciano-Mosquera, 63 F.3d at 1158. It also is possible that even where a defendant wins his appeal, the delay in preparing the transcripts on appeal could have prejudiced his right to defend his case on retrial. Id.
We see no impairment of Garcia‘s ability to present his appeal. He was and has been present in this country and has had access to counsel.12 When we look as well at the substance of the arguments he has presented on appeal, the failure of those arguments has not in any way been caused by the delay. Since he has lost his appeal there can be no impairment of his rights on retrial.
To the extent Garcia argues that any particular period—here, a one-year delay from the original due date of the transcript—per se amounts to a due process violation, we reject the argument. This circuit‘s requirement is that the defendant must show prejudice, and we will not presume prejudice from the length of the delay. See Luciano-Mosquera, 63 F.3d at 1158; see also id. at 1158 & n. 8 (describing approximately two-year delay in furnishing transcripts as “appalling” but rejecting defendant‘s claim for lack of prejudice); Pratt, 645 F.2d at 91 (declining to hold a nine-month delay unconstitutional, “at least in the absence of exacerbating factors“). There can be no per se rules on the length of delay because this court, in the exercise of its supervisory authority, is bound by the rule that a showing of prejudice is ordinarily needed for due process claims. See United States v. Tucker, 8 F.3d 673, 676 (9th Cir. 1993) (en banc) (“[A] federal court may not exercise its supervisory powers to reverse a conviction absent a showing of prejudice.“).
Garcia also argues that he was prejudiced in ways which, in our view, are simply not cognizable on a due process claim in this context. Specifically, he argues that due to the delay, he has suffered anxiety and “oppressive incarceration” during the pendency of his appeal. He bases this argument on decisions by other courts which have drawn an analogy between the right to a timely appeal and the right to a speedy trial. See, e.g., United States v. Hawkins, 78 F.3d 348, 350 (8th Cir. 1996); United States v. Mohawk, 20 F.3d 1480, 1486 (9th Cir. 1994); Rheuark v. Shaw, 628 F.2d 297, 303 (5th Cir. 1980). We reject the argument and differ from these courts. We explain why.
A due process claim about delays on appeal is not the same as a Sixth Amendment speedy trial claim. In Barker v. Wingo, 407 U.S. 514 (1972), a case under the Sixth Amendment, the Supreme Court identified four criteria, of which prejudice is only one, to determine when the right to a speedy trial is violated. Id. at 530. The Court held that it is possible to have a violation of the speedy trial right without a specific showing of prejudice. Id. at 533. By contrast, there is no Sixth Amendment speedy trial claim to be made as to appeals, with the possible exception, not involved here, of interlocutory appeals. See United States v. Loud Hawk, 474 U.S. 302, 313-17 (1986); see also United States v. Smith, 94 F.3d 204, 206 (6th Cir. 1996) (“The speedy trial guarantee of the Sixth Amendment applies only to proceedings in the trial court.“). The right of appeal is statutory, and the grant is subject to due process requirements. Evitts v. Lucey, 469 U.S. 387, 393 (1985).
In Barker, three categories of potential prejudice were identified: oppressive pretrial incarceration, anxiety and concern of the accused, and the possibility that the accused‘s defense might be impaired. Barker, 407 U.S. at 532. Those courts that have accepted the analogy between pretrial delay and appellate delay have adopted this inquiry almost whole cloth and looked for three kinds of potential prejudice from appellate delay: “(1) oppressive incarceration pending appeal, (2) anxiety and concern of the convicted party awaiting the outcome of the appeal, and (3) impairment of the convicted person‘s grounds for appeal or of the viability of his defense in case of retrial.” Hawkins, 78 F.3d at 351 (internal quotation marks omitted) (quoting Tucker, 8 F.3d at 676); see also Rheuark, 628 F.2d at 303 n. 8.
In our view, the due process issues caused by delay on appeal are more limited than those resulting from delay in the trial court. Cf. Ross v. Moffitt, 417 U.S. 600, 610 (1974) (noting, in the context of due process requirements, that “there are significant differences between the trial and appellate stages of a criminal proceeding“). And so we reject, at least in cases of delayed transcripts on appeal, the direct analogy made to tests involving the Sixth Amendment speedy trial right, which underlies the so-often articulated three-factor prejudice test quoted above. Other courts have shared this concern. See, e.g., Cody v. Henderson, 936 F.2d 715, 719 (2d Cir. 1991) (“Certainly, the differences in a defendant‘s situation before trial and after conviction suggest that at the very least the Barker factors should not be applied uncritically.“); see also Arkin, Speedy Criminal Appeal: A Right Without A Remedy, 74 Minn. L.Rev. 437, 473-81 (1990) (concluding that the concerns of Barker, and the Barker test, do not translate to the appellate delay setting).
Because Garcia has not shown prejudice, we do not reach the reasons for the delay. Sometimes the reasons involve inadequate resources in the reporting services available to the district court, or overly busy court reporters; sometimes there are other reasons. The problem of delay in production of transcripts is a very serious one, but one which cannot be used to benefit a defendant absent a showing of prejudice.
IV.
Garcia‘s conviction and sentence are affirmed.
SANDRA L. LYNCH
UNITED STATES CIRCUIT JUDGE