delay the reason that this case needs to be reversed is because despite that finding the district court failed to properly apply the test set forth in doggett and in this court's decision and shell about when prejudice should be presumed when there is a combination of a lengthy delay and governmental culpability this court hasn't addressed this precise issue of a situation such as this where it's not just simple negligence but a more aggravated form of negligence like the district courts finding here of gross negligence however the other circuits that have addressed this or analogous situations have found that prejudice should be presumed in shorter periods of time such as this and where was he during this period he was in state custody so counsel if we agree with you that prejudice should have been presumed ho that change the outcome if prejudice is presumed i'm talking here about not just the threshold but the ultimate prejudice factor though you're saying prejudice is presumed and deemed an rebut it correct that's different ok ok yes so i'm saying that at that point there's motion just so kill me they case you're relying upon to support your argument that prejudice should not only be pursued for purposes of the initial analysis but also deigned unrebutted what's the strongest case you have to support that argument well the supreme court case of course would be jogged and then in this court we would have shell nonetheless because of the government's culpability and because of the length of the delay the court is going to just presume that precious exists in ways that can't be shown and then in terms of the particular situation we have what i thought there in this case there were actual articulation of what the pressure this was how that doesn't fit within the rubric you just described if the defended actually articulated the nature of the prejudice well i think it's both and i certainly don't think that the message of dog is that a defendant should be penalize for attempting to demonstrate actual prejudice but if the if that case stands for the proposition that prejudice is presumed in those circumstances where it cannot be articulated then why should we apply it to a case where the prejudice has been articulated well i think that if the district court or this court agrees that prejudice has been successfully demonstrated done right the court doesn't have to proceed to the docket analysis however if but you don't get to say i don't think you get to say here's here's how we were prejudice but if you don't believe that just presume that we were prejudice and we can well your honor i think that it's more that we're saying there is not only this precious which we perceive and can describe but in well i think that that's an understandable position however i think that if his sentence would have been different had the government acted in a timely manner and he has been prejudiced and i think that that's what happened here well i don't quite understand what happened here that he did the delay was in what the july is between the time that he is found in the complaint is filed and the time that he is finally brought into federal court for what for the thirteen twenty six violations between the time of the complaint in the trial  although in this case we are primarily counting just up until the date of his initial appearance as the period when the project soli the government's responsibility and he was in prison at the time yes that's correct  benefits of a detainer he wasn't released he was being held for this prosecution to be turned over to the federal authorities but he was not able to assert a speedy trial right counsel may i ask you what the language is in dog there i was looking at the language on page six fifty four that describes in particular three types of harm and sadi and concern of the accused oppressive pretrial incarceration and the possibility that the accused defense will be impaired by the d m a memories and loss of exculpatory evidence those are the three specific types of harm that the supreme court articulated in dogs so what language are how these forms of prejudice so tell me the language that you're relying upon yes please trial in ways that cannot be proven or even identified right but that's the specific it penalizes the trial right or so i thought you said that when you can't articulate sure i'm saying anything different i mean i think that the idea is that we can't particularly articulate how the reliability was compromised but certainly i agree that the concern is whether the reliability matter identify while such presumptive prejudice cannot alone carry a six a mimic claim without regard to the other barkha criteria it is part of the mix so there seems to conflict with your position that the presumption is an rebuttal no i don't think so your honor because of course that is just one factor but the other factors in this case the district court found all were either favorable to the defendant or neutral and i think i bottom morning your honour's may please the court jonas lerman for the united states your honour's under this court's precedent this is a case about an eight month delay that's the period from the indictment to the initial appearance the district court found that the government did not deliberately or strategically cause the delay and under this court's precedent the sentencing prejudice claimed by the defense is not actual prejudice nothing you skipped over a lot of controversy between the parties whether or not we measured the time from the fowling of the complaint or from the time of the indictment and that was the next subject i was going to get to your honor so even if this court assumes for the sake of argument that the delay does run from the date of the criminal complaint and as we explain our briefs we think that would be contrary to biting precedent but even if you ruled that way  defense still loses because under this court's precedent that's not long enough to merit the extreme remedy of dismissing the indictment and the best case i would say on that point is us versus gregory there was a twenty two month post indictment delay here we have an eight month indictment delay and gregory said that was not long enough to relieve the defendant from showing actual prejudice and that the court also expressed they rejected the types of sentencing prejudice claims that the defense is making here and the reason was that this court recognized that at sentencing the district court will have a lot of tools at its disposal to adjust the sentence if the court determines that's appropriate still counsel your citation to gregory incorporates your argument that the time period starts from the indictment say three cases first marry me as strong as one that favors versus i'm and which was this court's first case interpreted mary and so marian came out from the supreme court in one nine hundred seventy one favors comes out in one thousand seventy two favors squarely addresses this question of whether whether a criminal complaint standing alone triggers the sixth amendment speedy trial right this court said it did not that's the binding precedent on this court is the first time this court confronted that question after marion there were two subsequent to the question i ask you now the question i ask you was if we assume that the time begins to run from the time of the complaint what is your best case that there is no presumption i think i'm sorry so again i would point the court to gregory because even if the time ran from complaint here that would mean this was a total twenty five month delay in gregory it was a twenty two month post indictment delay i don't know what the delay was preempt most indictment it would have been more than twenty two months and this this in january of two thousand and thirteen the defendant was addressed was arrested by state police on state gun and drug charges in february of two thousand and thirteen about a month later the u s filed a criminal complaint while he was in state pre trial really straight state pretrial detention in september of two thousand and thirteen he was convicted and sentenced in state court then in july of two thousand and fourteen the federal government indicted him and then and then eleven months after his initial appearance he moved for dismissal on the sixth amendment speedy trial grounds if i could briefly address the interstate agreement on detainers point that the defense raised that does not apply until someone has been convicted until someone is serving a state sentence so this idea that the government had some obligation to read him over before he was convicted in state court is not true it's not true under the i a d and it's not true under eighteen u s c thirty one  quiet i was asking why well that's the rationale for not doing this because he didn't have to use that well there was no indictment yet and we were not required to indict him any earlier than we did under this court's precedent we're not required to use a criminal detain or we can use i mean ice use a civil detainers and we've cited that ninth circuit authority from the one nine hundred eighty s saying that the i d does not confer substantive rights on defendants what the government did here has never been held to be held that the government is not required to use a criminal detain or versus a civil detain or and so the other alternative theory they have for why we should have brought him over sooner is eighteen u s c thirty one sixty one j part of the speedy trial act but that too doesn't attach my understanding is that it's along first i didn't agencies that through that i could be wrong but but i think the crucial point is what the defense is really arguing for here is a right to be indicted sooner than they were and not just that but a right to be indicted convicted and sentenced in federal court before being convicted in state court in a preexisting totally unrelated case and the sixth amendment just simply does not confer that right on the defendant he doesn't he's not entitled to dictate the the eight month post indictment to lay is not really what the defense is complaining about here they're complaining that we didn't convict him before the state convicted him in a preexisting case and i really want to run that with the thrust of his argument yes although he did not raise that argument when moving to dismiss the indictment and i want to stress that point because our position is that he's waived that argument for purposes of the sixth amendment claim the only prejudice that he identified when moving to dismiss the indictment was the reported inflation of his his criminal history score that at sentencing he raised the concurrent sentence argument for the first time but our position is that's not sufficient to preserve it for purposes of the sixth amendment claim but in any event under any standard of review both theories are wrong that each of those cases involved for magically longer delays than we have here so shell it was a five year post indictment to lay docket it was an eight and a half year post indictment to lay windows and it was a ten year post indictment delay and again here we have an eight month  away as for why judge devil used the term gross negligence rather than rather than negligence we don't think that has any sort of legal significance but i think he may have used that term because he was under the mistaken belief that that the government was required to indict sooner maybe or that that the relevant period of delay here was twenty five months rather than eight months but in the any event the defense hasn't pointed to any case where any court has dismissed an indictment on facts like these found and then sentence this defendant at the bottom end of that lower guidelines range this is a defendant with two prior deportations each time he has chosen to come back to this country and commit serious crimes he's been on your tenure gang member his entire adult life  so that the district court was well within its discretion to impose a bottom of the guidelines lenient sentence here the court was not required to vary or depart downward under gregory you know recognize th district courts have broad discretion to adjust sentences as appropriate to account for delays but importantly this court said in gregory that the district court's decision to depart quote rests firmly within the district court's discretion so the court wasn't required to impose a below guideline sentence here and on this record the court was well within its discretion to sentence within the guidelines and i note that the defense hasn't made any procedural claim of of you know any defect in the sense it's purely a substan i'd like to just briefly address the process of issuing criminal versus administrative detainers until two thousand and seven and the san jose division of the united states attorney's office regularly issued criminal detainers i thought i thought that that was true but counsel convinced me that my recollection was bad on that and so what happened is starting in two thousand and seven they started relying instead on what with an eye on ass detainers and later became ice the responsibility to logic mill detainer is with the department of justice in the san jose division they have chosen for whatever reason and to decline to do that it is true that they have the right to decline to lodge a criminal detainer what we object to is their reliance on the civil ice detainer which serves the purpose of holding the defendant for federal government but that's why the district court judge made the determination that they were grossly negligent exactly in this case but that doesn't get you past the prejudice problem well i think that the reason that's important for the prejudice problem is because the gross negligence means that a shorter delay is satisfactory to satisfy doggett thank you counsel thank you thank you both counsel a case just argued if that made it for decision by the co