[DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                   FILED
                      FOR THE ELEVENTH CIRCUIT           U.S. COURT OF APPEALS
                        ________________________           ELEVENTH CIRCUIT
                                                               January 5, 2010
                                                                  JOHN LEY
                              No. 08-11149                      ACTING CLERK
                          Non-Argument Calendar
                        ________________________

                    D. C. Docket No. 06-00026-CR-CDL-4

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                    versus

RIVIERE MARSHALL,

                                                          Defendant-Appellant.


                        ________________________

                 Appeal from the United States District Court
                     for the Middle District of Georgia
                      _________________________

                               (January 5, 2010)

Before BARKETT, HULL and ANDERSON, Circuit Judges.

PER CURIAM:

     Riviera Marshall appeals his conviction and 360-month sentence for
kidnapping, in violation of 18 U.S.C. § 1201. The evidence adduced at trial

showed that Marshall and two codefendants, while armed, entered into and

ransacked a home occupied by a mother and her one-year-old child, transported

them to another home in search of drugs and money, and then took the child across

state lines and demanded ransom money from the child’s family. On appeal,

Marshall first contends that his rights to due process and a speedy trial, pursuant to

the Fifth and Sixth Amendments, were violated by the government’s excessive pre-

indictment and post-indictment delays. Second, he argues that his sentence was

procedurally and substantively unreasonable.

I.     Right to Due Process and Speedy Trial

       A.     Pre-Indictment Delay

       Because Marshall did not raise a challenge to the pre-indictment delay

before the district court, we review his claim for plain error only. See United

States v. Dowling, 

, 1247 (11th Cir. 2005). We may only correct

plain error where the defendant demonstrates that there is (1) error, (2) that is plain,

and (3) that affects substantial rights so as to seriously affect the fairness, integrity,

or public reputation of judicial proceedings. United States v. Moriarty, 

, 1019 (11th Cir. 2005). “A plain error is an error that is obvious and is clear

under current law.” United States v. Humphrey, 

, 588 (11th Cir.



                                             2
1999) (internal quotation marks omitted).

      To prove a Fifth Amendment due process violation resulting from a

pre-indictment delay, the defendant bears the burden to show: (1) actual prejudice

to his defense from the delay; and (2) that the delay resulted from a deliberate

design by the government to gain a tactical advantage. United States v. Thomas,

, 1339 (11th Cir. 1995). Marshall has not satisfied this “very heavy

burden.” Stoner v. Graddick, 

, 1540 (11th Cir. 1985).

      The indictment of Marshall one year and twelve days after his crime

occurred was well within the limitations period for kidnapping a minor child,

which is the longer of the life of the child or ten years after the offense. 18 U.S.C.

§ 3283. Marshall nonetheless claims that the pre-indictment delay caused him

substantial prejudice. These claims are merely speculative. Marshall proffers no

evidence that eyewitness Daphne Wilson’s ability to identify him at his federal trial

but not at the state court proceeding two days after the crime resulted from the pre-

indictment delay. Nor does he provide any support for his claim that but for the

delay his codefendant Darrell Joseph would have testified in his support at trial.

Moreover, there was other substantial evidence at trial that implicated Marshall in

the kidnapping, including forensic evidence placing him at the site of the offense

and eyewitness testimony of his custody of the baby immediately following the



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kidnapping.

      Even if Marshall could establish prejudice resulting from the one-year pre-

indictment delay, he has not attempted to identify any conduct by the government

evidencing intentional delay tactics. Even where no good, detailed reason for the

delay exists, we will not provide relief due to a pre-indictment delay unless there is

evidence of bad faith or intent to gain a tactical advantage. See 

. Therefore, he has failed to meet his burden of showing that the delay

resulted from a deliberate design by the government to gain a tactical advantage.

See 

; 

. Accordingly, he did not

establish a Fifth Amendment violation to require reversal under our plain-error

review.

      B.      Post-Indictment Delay

      The Sixth Amendment provides that “[i]n all criminal prosecutions, the

accused shall enjoy the right to a speedy . . . trial.” U.S. Const. amend. VI. We

also review Marshall’s Sixth Amendment speedy trial challenge for plain error

because he did not raise the issue before the district court. See 

. In Barker v. Wingo, the Supreme Court identified four factors that should

be considered in determining whether the defendant’s constitutional right to a

speedy trial has been violated: (1) the length of the delay; (2) the reason for the



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delay; (3) the defendant’s assertion of his right; and (4) prejudice to the defendant.

, 530–32, 

, 2192–93 (1972). The defendant must

demonstrate a “presumptively prejudicial” period of delay under the first factor

before we will weigh the additional Barker factors. United States v. Register, 

, 827 (11th Cir. 1999).

      The Sixth Amendment speedy trial protection attaches when an individual

becomes an accused by arrest or indictment. United States v. Marion, 

, 320–21, 

, 463 (1971). Marshall’s trial began approximately

fifteen months after his indictment. We have determined that a delay approaching

one year is presumptively prejudicial. United States v. Schlei, 

, 987

(11th Cir. 1997). However, the Supreme Court has held that, if the government

diligently pursued prosecution, and had good faith reasons for delaying the trial,

the defendant’s Sixth Amendment claim generally will fail, unless he can show

actual prejudice to his defense. Doggett v. United States, 

, 656, 

, 2693 (1992).

      The Government bears the burden of explaining pre-trial delay. United

States v. Ingram, 

, 1337 (11th Cir. 2006). Here, the Government

sought and obtained two continuances that resulted in the fifteen-month delay

between Marshall’s indictment and trial. Marshall’s attorney concurred with the



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Government’s request for both continuances, which were based on the need to

complete discovery, obtain results of ongoing forensic evaluations, await

arraignment of Marshall’s codefendants in order to consolidate their trials, and

correct an error in the indictment date.

      The district court did not plainly err by allowing the case to proceed to trial

following the 15-month post-indictment delay here, as the delay was a result of

good faith requests by the government, to which Marshall consented, and he did

not establish actual prejudice resulting from such delay. See 

, 112 S. Ct. at 2693. The clear weight of the Supreme Court’s Barker factors

weigh in the Government’s favor.

II.   Reasonableness of Sentence

      We review the reasonableness of a sentence for abuse of discretion using a

two-step process. United States v. Pugh, 

, 1190 (11th Cir. 2008).

First, we look at whether the district court committed any significant procedural

error and then at whether the sentence was substantively reasonable under the

totality of the circumstances. 

may be procedurally unreasonable if

the district court improperly calculated the guideline range, treated the guidelines

as mandatory rather than advisory, failed to consider the appropriate § 3553(a)1


      1
          The factors in § 3553(a) that the sentencing court must consider are:


                                                 6
sentencing factors, selected a sentence based on clearly erroneous facts, or failed to

explain adequately the chosen sentence. Gall v. United States, 

, __,

, 597 (2007). A sentence is substantively unreasonable “if it does

not achieve the purposes of sentencing stated in § 3553(a).” 

(11th Cir. 2008) (quotation omitted). The review for substantive

reasonableness involves examining the totality of the circumstances, including the

extent of any variance from the Guidelines range. Gall, 552 U.S. at __, 128 S. Ct.

at 597. The party challenging the sentence bears the burden to show it was

unreasonable in light of the record and § 3553(a) factors. 

.

        Marshall argues that his 360-month sentence was procedurally unreasonable

because the district court improperly treated the guidelines as mandatory and failed

to provide an adequate statement of reasons for his sentence. Marshall also argues

that his 360-month sentence was substantively unreasonable in light of his



        (1) the nature and circumstances of the offense and the history and characteristics
        of the defendant; (2) the need to reflect the seriousness of the offense, to promote
        respect for the law, and to provide just punishment for the offense; (3) the need
        for deterrence; (4) the need to protect the public; (5) the need to provide the
        defendant with needed educational or vocational training or medical care; (6) the
        kinds of sentences available; (7) the Sentencing Guidelines range; (8) pertinent
        policy statements of the Sentencing Commission; (9) the need to avoid unwanted
        sentencing disparities; and (10) the need to provide restitution to victims.

United States v. Talley, 

, 786 (11th Cir. 2005) (citing 18 U.S.C. § 3553(a)).

                                                  7
character, youth, and lack of criminal history.

      The only evidence Marshall provides that the district court failed to treat the

guidelines as advisory is the district court’s statement that it intended to sentence

Marshall within the guidelines range and requested that counsel focus his remarks

on the proper sentence within those guidelines. The court made this statement after

defense counsel presented arguments about Marshall’s youth and lack of criminal

history. Marshall does not contend that there were any additional mitigating

circumstances not presented to or considered by the court. Moreover, while the

district court must consider the § 3553(a) factors, it is not required to discuss each

individually. United States v. Talley, 

, 786 (11th Cir. 2005). The

district court must merely acknowledge “that it has considered the defendant’s

arguments and the [§ 3553(a)] factors.” 

district court imposed a

within-guidelines sentence after acknowledging the advisory nature of the

guidelines, hearing defense counsel’s arguments in support of mitigation, and

stating that it had considered the § 3553(a) factors, the court imposed a

procedurally reasonable sentence.

      Nor has Marshall met his burden to show substantive error “in light of both

[the] record and the factors in § 3553(a).” 

The district court’s sentence

of 360 months was at the low end of the calculated statutory range of 360 months



                                           8
to life imprisonment. Although “a sentence within the guidelines range is not per

se reasonable,” 

“there is a range of reasonable sentences from which the

district court may choose,” and “when the district court imposes a sentence within

the advisory Guidelines range, we ordinarily will expect that choice to be a

reasonable one.” 

      In imposing the low-end sentence of the guidelines range, the court had

before it the PSI and had heard defense counsel’s mitigation arguments. The

weight given to any § 3553(a) factor is within the sound discretion of the district

court, and we will not substitute our judgment in weighing the relevant factors.

United States v. Amedeo, 

, 832 (11th Cir. 2007). In light of the

severity of the offense, which involved the armed entry into an occupied home and

kidnapping of a one-year-old child, the court did not abuse its discretion in

imposing the low-end sentence of the guidelines range. Upon review, we affirm.

      AFFIRMED.




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