PUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                       No. 19-4082


UNITED STATES OF AMERICA,

                     Plaintiff − Appellee,

              v.

JOSE ALFREDO MACIAS LOZANO,

                     Defendant – Appellant.


Appeal from the United States District Court for the Western District of North Carolina, at
Asheville. Martin K. Reidinger, Chief District Judge. (1:11-cr-00101-MR-WCM-1)


Submitted: March 18, 2020                                         Decided: June 17, 2020


Before NIEMEYER, DIAZ, and QUATTLEBAUM, Circuit Judges.


Affirmed by published opinion. Judge Diaz wrote the opinion, in which Judge Niemeyer
and Judge Quattlebaum joined.


Anthony Martinez, Federal Public Defender, Joshua B. Carpenter, Appellate Chief,
Asheville, North Carolina, Jared P. Martin, Assistant Federal Public Defender, FEDERAL
DEFENDERS OF WESTERN NORTH CAROLINA, Charlotte, North Carolina, for
Appellant. R. Andrew Murray, United States Attorney, Charlotte, North Carolina, Amy E.
Ray, Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Asheville, North Carolina, for Appellee.
DIAZ, Circuit Judge:

       Jose Alfredo Macias Lozano, a native and citizen of Mexico, was convicted of a

felony while unlawfully present in the United States and was deported. He reentered the

United States and committed a number of other state crimes. In 2011, while in custody for

one of those crimes, Lozano was charged with federal illegal reentry, in violation of 8

U.S.C. § 1326(a) and (b)(2). But he was deported without ever learning of the federal

charge. In 2018, after Lozano had reentered the United States again, he was arrested on

the still-pending federal charge. Lozano pleaded guilty and received a below-Guidelines

sentence.

       On appeal, Lozano argues that the delay of over six years between the date of his

federal charge and the date of his guilty plea violated his Sixth Amendment right to a

speedy trial. But this argument is foreclosed by Lozano’s guilty plea and, in any event,

fails on the merits.

       Lozano also asserts that his sentence is procedurally unreasonable because the

district court failed to fully consider his non-frivolous arguments for a downward variance.

The record, however, proves otherwise. The district court heard Lozano’s arguments and

varied downward, albeit not as far as Lozano would have liked. In so doing, the court acted

well within its discretion.

       We therefore affirm the district court’s judgment.




                                             2
                                             I.

       When Lozano was a few months old, his parents brought him from Mexico to the

United States, where he lived until, at age twenty-six, he was deported after being convicted

of a Texas felony offense. Sometime thereafter, Lozano reentered the United States and

was convicted of a number of North Carolina felony drug offenses.

       In May 2011, Lozano was arrested and charged with another North Carolina felony

drug offense. In December 2011, while in custody on that charge, he was also charged

with illegal reentry after deportation subsequent to a conviction for an aggravated felony,

in violation of 8 U.S.C. § 1326(a) and (b)(2).

       Lozano pleaded guilty to the 2011 North Carolina charge and was sentenced to 10

to 12 months’ imprisonment. He finished serving that sentence in June 2013 and was

deported to Mexico. He never appeared in court on the federal illegal reentry charge, and

he didn’t know that it was pending.

       Lozano reentered the United States again in 2013, and in May 2018, he was arrested

on the still-pending federal charge. After his arrest, he gave law enforcement officers

information about drug traffickers he had been involved with. But because Lozano hadn’t

lived in the area since 2013, the information he provided was stale. In September 2018, he

pleaded guilty to the 2011 federal illegal reentry charge.

       At Lozano’s sentencing hearing, he sought a sentence of 27 months’ imprisonment,

a downward variance from his advisory Sentencing Guidelines range of 63 to 78 months’

imprisonment. Lozano’s counsel explained, “We believe . . . some sort of reduction is

warranted for [Lozano] because I think he does have unusual circumstances in his case.”

                                             3
J.A. 69. Counsel noted that Lozano had “[fallen] through the cracks” and was unaware of

the 2011 federal charge until he was arrested in 2018.

on two Sentencing Guidelines provisions to support his request

for a downward variance. First, Lozano urged that a variance was warranted because he

had provided information to law enforcement officers about drug traffickers that he had

known. See U.S.S.G. § 5K1.1 (allowing for a downward departure where a defendant has

provided substantial assistance to authorities in the investigation of another person).

Lozano acknowledged that his information was stale and that his assistance wasn’t

substantial, but he claimed that a downward variance was still warranted because he had

done the best he could under the circumstances.

       Second, Lozano argued that a variance was warranted due to his cultural

assimilation. See U.S.S.G. § 2L1.2 cmt. n. 8 (allowing for a downward departure where a

defendant convicted of unlawfully entering the United States has assimilated into United

States culture). Lozano contended that he met the “spirit of the departure,” J.A. 71, because

he has lived in the United States almost continuously, his close family members all live in

the United States, he was educated in the United States, and he speaks English.

       The district court questioned how Lozano qualified for a cultural assimilation

departure given his high criminal history category. In response, Lozano noted that he

hadn’t had any convictions since he reentered the country in 2013, and he asserted that if

he had been charged with illegal reentry in 2018, his criminal history category would have

been lower because some of his prior convictions would not have fallen within the time

period relevant for calculating his criminal history category. He added that he had been

                                             4
“beating himself up” about the charge and could have completed service of any sentence

imposed for the charge had he known about it in 2011. J.A. 74.

       The government agreed that a downward variance was appropriate.                  The

government accepted “some responsibility” for the delay between the date of the federal

charge and Lozano’s arrest because it “should have had a detainer on [Lozano].” J.A. 76.

The government also acknowledged that if Lozano had been arrested sooner, the

information he provided to law enforcement may have been more helpful.

       The district court sentenced Lozano to 51 months’ imprisonment. The court

explained that illegal reentry is a serious offense that undermines the country’s immigration

system. The court also cited the need for specific and general deterrence. It explained that

it varied downward from Lozano’s Guidelines sentencing range “based on the government

concurring that some degree of downward variance is warranted under the circumstances

here.” J.A. 83.

       As to Lozano’s argument for a downward variance based on his assistance to law

enforcement, the court explained that some variance was warranted, but the court also

noted that Lozano’s information was stale. As to Lozano’s argument for a downward

variance for his cultural assimilation, the court allowed for some variance because Lozano

had been brought to the country at a young age and had “much more law-abiding activity”

after he reentered the country in 2013. J.A. 84. But it didn’t vary to the degree Lozano

wanted because at other times, Lozano was “assimilating not to the cultural fabric of this

country but to a criminal underculture.”

                                               5
                                            II.

       Lozano argues that (1) the six-year delay between the date of his federal illegal

reentry charge and the date of his guilty plea violated his Sixth Amendment right to a

speedy trial; and (2) his sentence is procedurally unreasonable because the district court

failed to address his non-frivolous arguments for a lower sentence. We take up the alleged

Sixth Amendment violation first.

                                            A.

       The government’s response to Lozano’s speedy trial claim effectively disposes of

it: Lozano waived the claim when he pleaded guilty.

       “It is the general rule that when a defendant pleads guilty, he waives all

nonjurisdictional defects in the proceedings conducted prior to entry of the plea, and thus

has no non-jurisdictional ground upon which to attack that judgment except the inadequacy

of the plea.” United States v. Fitzgerald, 

, 110 (4th Cir. 2016) (cleaned up);

see also Blackledge v. Perry, 

, 29–30 (1974) (“[W]hen a criminal defendant

enters a guilty plea, he may not thereafter raise independent claims relating to the

deprivation of constitutional rights that occurred prior to the entry of the guilty plea.”

(cleaned up)).

       Citing the Supreme Court’s decision in Class v. United States, 

(2018),

Lozano contends that his speedy trial claim is excepted from this general rule. He is wrong.

       In Class, the Court held that the defendant’s guilty plea didn’t waive his claim that

his statute of conviction was 

. This holding, the Court

explained, flowed from its decisions in Blackledge v. Perry, 

(1974), and

                                             6
Menna v. New York, 

(1975) (per curiam). 

–04. In

Blackledge, the Court held that the defendant’s guilty plea didn’t bar his claim of vindictive

prosecution because the claim challenged “the very initiation of the proceedings against

[the defendant]” and implicated the defendant’s “right not to be haled into court at all upon

the . . . 

–31. In Menna, the Court concluded that the defendant’s

guilty plea didn’t bar his claim of double jeopardy because it too was a claim that “the State

is precluded by the United States Constitution from haling a defendant into court on a

. Drawing on these principles, the Court in Class held that a guilty

plea doesn’t bar claims that “challenge the Government’s power to criminalize [the

defendant’s] (admitted) conduct” and that “thereby call into question the Government’s

power to constitutionally 

(cleaned up).

       The Court contrasted these claims with those that “focus upon case-related

constitutional defects that occurred prior to the entry of the guilty plea.”

–05

(cleaned up). Such claims include allegations that evidence was obtained in violation of

the Fourth Amendment or that the indicting grand jury was unconstitutionally selected.

A guilty plea renders these claims “irrelevant to the constitutional validity of the

conviction,”

and they are barred by the plea, see

the principles on which it relies support Lozano’s contention that

his speedy trial claim survived his guilty plea. For starters, Lozano doesn’t argue that his

statute of conviction is unconstitutional. And his speedy trial claim doesn’t implicate the

right set out in Blackledge and Menna—the right “not to be haled into court at all upon the

. . . charge.” 

.

                                              7
       It is true that Sixth Amendment speedy trial violations call into question the

government’s power to prosecute after a certain amount of time. See Strunk v. United

States, 

, 439–40 (1973) (concluding that the remedy for a speedy trial

violation is dismissal of the indictment). But this is not the same power as that at issue in

Blackledge, Menna, and Class. In each of those cases, the defendants alleged that the “very

initiation of the proceedings against [them]” was unconstitutional, and they thereby

challenged the government’s power to “hale[] [them] into court at all.” 

–31 (emphasis added). Put differently, they challenged the government’s power

to prosecute in the first instance.

       Indeed, whether a claim challenges this power is the “fundamental distinction,”

survive a guilty plea and claims that challenge case-related

constitutional defects that occurred prior to the entry of the guilty plea, which don’t survive

the plea. See

don’t challenge the government’s power to initiate

the proceedings against the defendant. Instead, they challenge “case-related government

conduct that [took] place before the plea [was] entered,” which “[a] valid guilty plea . . .

renders irrelevant.” 

. Thus, they don’t fit the exception set out in

Blackledge, Menna, and Class.

       Lozano’s reliance on the dissent in Class is misplaced. True, the dissent there

posited that under the majority’s holding, a defendant’s guilty plea wouldn’t waive an

alleged Speedy Trial Act violation.

(Alito, J., dissenting). But the dissent

reached this conclusion by attributing to the majority a rule that it didn’t adopt—the rule

that “the only arguments waived by a guilty plea are those that contradict the facts alleged

                                              8
in the charging document.” 1

Trial Act claim wouldn’t contradict the

defendant’s admission of factual guilt, the dissent reasoned, the claim wouldn’t be waived

by the defendant’s guilty plea.

majority did not adopt this rule. Instead, it explained that

among the claims that are barred by the defendant’s guilty plea are those that “contradict

the terms of the indictment or the written plea agreement” or are inconsistent with the

defendant’s “admission that he did what the indictment alleged.”

(majority

opinion). This does not, we think, support the dissent’s assertion that those are the only

claims waived by a guilty plea.

       For these reasons, we conclude that a defendant like Lozano waives his or her

speedy trial claim by entering a guilty plea.




       1
           The dissent derived this rule from a footnote in Menna:

       [A] counseled plea of guilty is an admission of factual guilt so reliable that,
       where voluntary and intelligent, it quite validly removes the issue of factual
       guilt from the case. . . . A guilty plea, therefore, simply renders irrelevant
       those constitutional violations not logically inconsistent with the valid
       establishment of factual guilt and which do not stand in the way of conviction
       if factual guilt is validly 

n.2. The dissent interpreted this language to mean that “a guilty plea allows
the litigation on appeal of any claim that is not inconsistent with the facts that the defendant
necessarily admitted.” 

(Alito, J., dissenting). As we explain, we
disagree that the majority adopted this rule.

                                                9
                                             B.

       Even if Lozano hadn’t waived his speedy trial claim, the claim would fail.

       Lozano concedes that because he didn’t raise his speedy trial claim before the

district court, we review for plain error. Lozano must therefore show that an error occurred,

that it was plain, and that the error affected his substantial rights. See United States v.

Martinez, 

, 524 (4th Cir. 2002). “Even when these three conditions are

satisfied, we retain discretion whether to correct the error, which we should exercise only

if the error seriously affects the fairness, integrity, or public reputation of judicial

proceedings.”

determine whether a Sixth Amendment speedy trial violation occurred, we

consider four factors: the “[l]ength of delay, the reason for the delay, the defendant’s

assertion of his right, and prejudice to the defendant.” Barker v. Wingo, 

, 530

(1972).

       As to the length of the delay, the defendant “must allege that the interval between

accusation and trial has crossed the threshold dividing ordinary from presumptively

prejudicial delay.” Doggett v. United States, 

, 651–52 (1992) (cleaned up).

If the defendant makes this showing, the court then considers the length of the delay

alongside the remaining factors.

We agree with Lozano that the significant

delay of over six years is presumptively prejudicial.

       As to the reason for the delay, “[d]eliberate delay to hamper the defense weighs

heavily against the prosecution.” Vermont v. Brillon, 

, 90 (2009) (cleaned up).

In contrast, “[a] more neutral reason such as negligence or overcrowded courts should be

                                             10
weighted less heavily but nevertheless should be considered since the ultimate

responsibility for such circumstances must rest with the government rather than with the

defendant.” 

. We agree with Lozano that the reason for the delay

weighs slightly in his favor. While there’s no evidence that the government deliberately

delayed Lozano’s arrest, the government admitted at sentencing that it bore some

responsibility, and Lozano bore none.

       However, the remaining factors weigh against Lozano. The Supreme Court has

“emphasize[d] that failure to assert the right will make it difficult for a defendant to prove

that he was denied a speedy trial.”

Lozano didn’t assert his right to a speedy

trial even after he was released from state custody, learned of the federal charge, and was

appointed counsel.

       And Lozano has failed to show any prejudice. Prejudice, “while not . . . essential to

the establishment of a violation of the right, is a prime issue and a critical factor.” Ricon

v. Garrison, 

, 634 (4th Cir. 1975) (cleaned up). Prejudice should be assessed

in relation to the interests the speedy trial right was designed to protect: “(i) to prevent

oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and

(iii) to limit the possibility that the defense will be impaired.” 

. In

general, the defendant must demonstrate actual prejudice or “the credible possibility of

prejudice.” 

(cleaned up).

       Lozano didn’t know of the pending federal charge until he was arrested in 2018.

Thus, he didn’t experience oppressive pretrial incarceration or anxiety during the delay.

Nor does Lozano assert that the delay impaired his ability to prepare a defense.

                                             11
       Lozano’s contention that the delay cost him the opportunity to serve a concurrent

sentence and to receive a downward departure for substantial assistance to law enforcement

is unavailing, as the record doesn’t show a credible possibility that he would have received

a concurrent sentence, that his information would have substantially assisted the

government, or that the government would have sought a downward departure. 2 See

United States v. Goossens, 

, 704 (4th Cir. 1996) (noting that the government

has “broad discretion” to move for a downward departure based on substantial assistance);

cf. United States v. Uribe-Rios, 

, 358 (4th Cir. 2009) (“[B]ecause there is no

right to serve state and federal sentences concurrently, an appellant’s lost chance of doing

so cannot be used to establish prejudice for the purposes of challenging pre-indictment

delay.”).

       Lozano’s argument that his criminal history category was overrepresented due to

the delay is also unavailing. A defendant’s criminal history category is calculated based

on his prior convictions at the time the defendant commenced the offense for which he is

being sentenced. See U.S.S.G. § 4A1.2(e). Thus, Lozano’s criminal history category

would have been the same if he had been charged in 2018. And Lozano hasn’t shown a

credible possibility that he would have been sentenced for the federal charge before



       2
        At sentencing, the government acknowledged that “if [Lozano] had presented that
information . . . four or five years ago maybe it wouldn’t have been old then. . . . Maybe it
would have been confirmed throughout the investigation. Maybe he would have gotten
two or three levels for giving that information.” J.A. 77. We don’t think this series of
maybes amounts to a credible possibility that Lozano would have received a downward
departure for substantial assistance.

                                             12
pleading guilty to the May 2011 North Carolina charge, such that the state charge would

not have contributed to his criminal history category.

       We also disagree with Lozano that he’s entitled to relief based on the presumption

of prejudice arising from the significant delay. In Doggett, the Supreme Court concluded

that the defendant was entitled to relief because the government’s negligence caused a

delay of over eight years and “the presumption of prejudice, albeit unspecified, [was]

neither extenuated, as by the defendant’s acquiescence, nor persuasively 

(cleaned up). A defendant acquiesces to a delay when he or she fails to assert

the right to a speedy trial. 

–35. Thus, the presumption of prejudice

here was extenuated by Lozano’s failure to assert his right to a speedy trial.

       In sum, because “failure to assert the right will make it difficult for a defendant to

prove that he was denied a speedy trial,” 

, and because Lozano

hasn’t shown prejudice, which is “a critical factor,” 

, we conclude

that even if Lozano hadn’t waived his speedy trial claim, he couldn’t show that an error

occurred. Thus, the district court did not err—plainly or otherwise—in not sua sponte

dismissing Lozano’s indictment.



                                            III.

       We next turn to Lozano’s contention that his sentence is procedurally unreasonable

because the district court failed to address his non-frivolous arguments for a lower

sentence.



                                             13
       “We review a district court’s sentence for an abuse of discretion.” United States v.

Provance, 

, 217 (4th Cir. 2019). “Under this deferential standard, we first

review for procedural reasonableness.” United States v. Blue, 

, 517 (4th Cir.

2017). Procedural errors include failing to adequately explain the sentence. 

.     For every sentence, the district court must “place on the record an

individualized assessment based on the particular facts of the case before it.” 

(cleaned up). The court’s explanation “should set forth enough to satisfy the

appellate court that [it] has considered the parties’ arguments and has a reasoned basis for

exercising [its] own legal decisionmaking authority.” Rita v. United States, 

,

356 (2007).

       When a defendant presents non-frivolous reasons for imposing a different sentence,

the district court “must address or consider” them and explain why it has rejected them.

United States v. Ross, 

, 744 (4th Cir. 2019). The explanation is sufficient “if

it, although somewhat briefly, outlines the defendant’s particular history and characteristics

not merely in passing or after the fact, but as part of its analysis of the statutory factors and

in response to defense counsel’s arguments for a downward departure.” 

(cleaned up).     District courts need not spell out their responses to defendants’

arguments where context makes them clear.

But the context must make it

“patently obvious that the district court found [the defendant’s] arguments to be

unpersuasive.”

(cleaned up).

       Lozano argues that his sentence is procedurally unreasonable because the district

court failed to address five of his arguments for a lower sentence—the government’s

                                               14
responsibility for the delay, the harm the delay caused him and his family, the length of the

delay, the delay’s effect on his ability to receive a substantial assistance downward

departure, and the nature of his criminal history.

       We are satisfied that the district court considered these arguments when it fashioned

Lozano’s below-Guidelines sentence and that it adequately explained why it didn’t vary

downward to the degree Lozano had requested. In particular, the court considered the

government’s responsibility for the delay when it noted that the government had agreed to

a downward variance. The government had so agreed in part because it bore “some

responsibility” for the delay. J.A. 76.

       The court also considered the overall effect of the delay, including its effect on

Lozano’s attempt to assist law enforcement, and the nature of Lozano’s criminal history.

Specifically, the court explained that a downward variance was warranted “under the

circumstances here.” J.A. 83. It also explained that it had balanced the fact that Lozano’s

information was stale against his “open” and “honest” attempt to assist law enforcement.

J.A. 83. And it explained that it had balanced Lozano’s criminal history against his “later

and much more law-abiding activity.” J.A. 84.

       The court agreed with Lozano that a downward variance was warranted despite his

criminal history, but it concluded that “a reduction to the extent advocated by defense

counsel” wasn’t warranted given that history.

it patently obvious that

the district court considered Lozano’s arguments and found them only partially persuasive.

       Finally, we disagree with Lozano that our recent decisions in United States v.

Torres-Reyes, 

(4th Cir. 2020), and United States v. Lewis, 

(4th

                                             15
Cir. 2020), support his procedural unreasonableness argument. In Torres-Reyes, the

defendant made both legal and equitable arguments for a lower sentence. See

In explaining the defendant’s sentence, the district court only addressed the legal

argument.

Because the record didn’t assure us that the district court had

considered the equitable argument, we concluded that the defendant’s sentence was

procedurally unreasonable.

       In Lewis, the defendant offered numerous arguments for a lower 

–45.    Because the district court didn’t address the “central thesis” of those

arguments—the defendant’s role as a working father—we concluded that the defendant’s

sentence was procedurally unreasonable.

see also United States v. Nance, 

, 214 (4th Cir. 2020) (concluding that “the district court, having fully addressed

[the defendant’s] central thesis . . . was not also required to address separately each

supporting data point marshalled on its behalf”).

       Here, Lozano only made equitable arguments for a lower sentence. See J.A. 70

(acknowledging that the information he provided didn’t “[rise] to the level of substantial

assistance”); J.A. 71 (acknowledging that he didn’t “quite meet the [cultural assimilation]

departure criteria”).   And, as we have explained, the district court considered these

arguments and rejected them, at least in part. In doing so, it addressed both Lozano’s

central thesis—that he should receive a downward variance because of the delay—and his

supporting arguments.




                                            16
                                          ***

      For the reasons given, we affirm the district court’s judgment. We dispense with

oral argument because the facts and legal contentions are adequately presented in the

materials before this court and argument would not aid the decisional process.

                                                                             AFFIRMED




                                           17