FILED
NOT FOR PUBLICATION SEP 21 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-50353
Plaintiff - Appellee, D.C. No. 8:06-cr-00188-AG-6
v.
MEMORANDUM *
LUIS ALBERTO CAZAREZ IBARRA,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Andrew J. Guilford, District Judge, Presiding
Submitted August 30, 2010 **
Pasadena, California
Before: KOZINSKI, Chief Judge, O’SCANNLAIN and GOULD, Circuit Judges.
Luis Alberto Cazarez Ibarra pled guilty in federal district court to possession
of cocaine with intent to distribute. Thereafter, he stipulated to continue
sentencing for six months. After that delay, the court sentenced him to 168 months
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
of imprisonment, which reflected an offense level enhancement for firearm
possession. He timely appeals, alleging ineffective assistance of counsel at
sentencing with respect to the enhancement, and alleging violations of the Fifth
and Sixth Amendments with respect to the delay between his guilty plea and
sentencing.
First, assuming arguendo that sentencing is part of trial for Sixth
Amendment purposes, the delay in Cazarez Ibarra’s sentencing did not violate his
Sixth Amendment right to a speedy trial. Cazarez Ibarra failed to demand to be
sentenced as required for a Sixth Amendment claim. See United States v.
Martinez, 837 F.2d 861, 866–67 (9th Cir. 1988). Furthermore, the delay was not
unreasonably long, Pollard v. United States, 352 U.S. 354, 362 (1957), and it
appears to have been, at least in part, for Cazarez Ibarra’s benefit. See Martinez,
837 F.2d at 867. Indeed, he stipulated to the six month continuance in order to
engage in ongoing discussions with the government. Second, the delay did not
violate Cazarez Ibarra’s Fifth Amendment right to due process. Assuming
arguendo that the Fifth Amendment due process guarantee applies to speedy
sentencing, Cazarez Ibarra was not actually prejudiced by the delay. See United
States v. Barken, 412 F.3d 1131, 1134 (9th Cir. 2005) (citation omitted). Nor did
the delay “offend[] those fundamental conceptions of justice which lie at the base
2
of our civil and political institutions.” Id. (internal quotation marks and citation
omitted). Third, because the delay was to the defendant’s advantage, it was not
unnecessary and did not violate Fed. R. Crim. P. 32(b)(1). Cf. Treakle v. United
States, 327 F.2d 82,83 (9th Cir. 1964) (per curiam).
Finally, we decline to vacate Cazarez Ibarra’s sentence on the ground that he
received ineffective assistance of counsel. The record is insufficiently developed
at this time to permit determination of the issue. See United States v. Benford, 574
F.3d 1228, 1231 (9th Cir. 2009). And the legal representation was not so
inadequate that it obviously denied Cazarez Ibarra his Sixth Amendment right to
counsel. Id. We generally defer adjudication of ineffective assistance claims until
appeal is taken from the denial of a section 2255 petition. See 28 U.S.C. § 2255;
United States v. Johnson, 820 F.2d 1065, 1074 (9th Cir. 1987).
AFFIRMED.
3