NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 12a0366n.06 Nos. 09-5500 and 09-6200 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

UNITED STAT ES O F AMERICA, P laintif f-App ellee,

v. M I C HA EL F LO W ER S, a ka M ic hae l P a r t e e ( 0 9
- 5 5 0 0 ) , DERRICK

BENTO N (09-6200) , Defendan ts-Appellants. ) ) ) ) ) ) ) ) ) ) On Appeal from the United States District Court for the Weste rn District

of T ennessee O P I N I O N

BEFORE: McK

EAGU E and WHITE , Circuit Judges; BARRETT , District Judge. * McK ea g u e, Circuit Judge. Def endant- Appellant Der

rick Be nton (“B enton”) and Def endant- Appellant Micha el Flowe rs (“ Flowe rs”) wer e both cha rg ed with distributing six g rams of coca ine base in violation of 21 U.S.C. § 841 (“Count One” ) and p o s s es s ing a firea rm in furt h er an ce o f t hat char g e in violation of 18 U.S.C. § 924(c) (“Count Two”)

. Be nton was also char g ed with five additional violations of 21 U.S.C. § 841. Be nton and Flowe rs ultimately pleade d
g uilty to all counts except for C o u n t T wo . After a jury convicted both defe ndants of C ount Two, Be nton and Flowe rs wer e sente nced to 120 a nd 152 months im prisonment, respe ctively

. On appea l, Be nton and Flowe rs both challeng e their conviction for Count T wo , arguing insufficient e vidence . I n addition, B enton claims that his Six th A mendment rig ht to a speedy trial

The Honorable Michael R . Ba rre tt, United States District J udg e for the S outhern District * of Ohio, sitting by

desig nation.Nos. 09-5500 and 09-6200

United States v. Flowers and Benne tt was viol ated, and Flowe rs charg es t hat t he district cour t erre d in refusing to gr ant him a two-level reduc tion in his base offe nse level for acc eptanc e of responsibility

. We AF F IRM the district court in all respec ts. I. BACKG ROUND Fa ctual B ackg round On J une 2, 2006 at 3 a.m., Detec tive I an J ames and his confide ntial informant (“CI ”) visited Be nton and Flowe rs to purcha se drug s. Detec tive J ames was an underc over police office r with the Memphis Police Depa

rtment, and his CI had repor ted that Flowe rs and Be n t o n “d o most of their business around this time, and it would be a g ood time to g o ahead an d m ee t them and make a purcha se.” Tr ial Tr. at 267- 68. When Detec tive J ames and his CI knocked on the door, they wer e g ree ted by Be nton. Once inside, Detec tive J ames told Be nton that they had come to purcha se “a quarte r ounce of hea

rt”—a rock form of cocaine—a

nd the m en agr eed upon a pr i ce o f $150. Id. at 273-75. Detec tive J ames testified about the f

ollowing inter action betwe en B enton and F lowers: Mr. Be nton w ent to the back room of this one -bedr oom a partment. For a couple of moments he was out of my sight. A short while afte r that he comes back to the front. That’s when I g ive him my $150. He g oes back to the back

. . . Be nton g oes back and forth throug h the living r oom a couple of times. On one occa sion he comes to the living room, and he has a firea rm in his rig ht hand. He comes to the rig ht side of Michae l Flowe rs and hands i t off to him. Michae l Flowe rs t hen chambe rs a round or it appea

rs that he c hamber s a round a nd place s it in hi s rig ht pocket. Id. at 276-77. Flowe rs then offe red his telephone number for Detec tive J ames with “the butt of the firea rm, the handg rip, out of his poc ket,” making it both visible a nd quickly

available

. Id . at 283. After Flowe rs g ave D e tective J ames his telephone number, Be nton returne d to the room and weig hed - 2 -Nos. 09-5500 and 09-6200

United States v. Flowers and Benne tt the coca ine. Id

. Once Detec tive J ames verifie d the weig ht of the drug s, he left the apar tment with the drug s and his CI

. Id

. Detec tive J ames rec orded the drug deal on a conce aled video came ra. At trial, De t ective J ames testified tha t he was “ displeased with the f act that [he] caug ht ever

y thing on camer a ex cept the g un,” which was “just below the ac t u al viewing of the came ra.” Id

. at 288. He explained, howeve r, that the need to ensure the rec ording device was not detec ted had made it impossible for him to adjust t he video or monitor the came ra’ s ang le during the transa ction. Id . at 286-87. Detec tive J ames also testified that Be nton and Flowe rs exchang ed the g un “rig ht in front of [hi m] ,” id

. at 277, and that his experience as an underc over police office r spanned approximately 350 drug deals, many of which involved firea rms. Id

. at 278. I n addition, Offic er J ames testified that h e b el i eved Be nton and Flowe rs wer e sending him the messag e that “it’s the middle of the night, 3:00 a.m., they didn’t know [hi m] , they wer en’t g oing to g et robbed

. They had fire power .” Id

. at 281. Offic er J ames also testified that Be nton and Flowe rs had both pled g uilty to their participa tion in the drug transac tion depicted in the video that wa s play ed for the jury

. Id . at 285-89; 292-95. After the jury returne d a g uilty verdic t on Count Two, the court order ed a Presentenc e Report (“PSR”) on Be nton a

nd Flowe rs to f

acilitate sentenc ing. The PSR did not rec ommend a reduc tion in either Benton’ s or Flowers’s base offense level for acce pt an ce o f responsibi lity pursuant to the United States Sentencing Guidelines (“U .S.S.G.”) § 3E1.1. Flowe rs objected, and the district court

overr uled his objection on the g rounds that Flowe rs’s decision to g o to trial on Count Two signifie d that he did not wholehea

rtedly admit to the relevant conduct for those counts in which he plea ded
g uilty . (R.E. 205, April 17, 2009 Sentencing Transc ript, 18-21.) - 3 -Nos. 09-5500 and 09-6200

United States v. Flowers and Benne tt Procedur al B ackg round Reg arding Be nton’s Speedy

Trial Claim Be nton was indicted on J uly 18, 2006, and 904 day s passed befor e his trial beg an on J anuar y 6, 2009. On Fe bruar

y 7, 2008, Be nton filed a pro se motion for a speedy trial. I n addition, B enton filed a second pro se motion reque s t i ng exculpatory materia l. I n deny ing Be nton’s second pro se motion, the district court explained that Be nton’s motions violated local court rules beca use he was repr esente d by counsel and not proce eding pro se. As such, the district court instructed the cler k not
to acc ep t fu rther pro se motions from Be nton. Ultimately , Be nton was convicted afte r a one-da y trial. Over the course of the 904-day lapse, Be nton reque sted a continuance on 21 occa sions. Two continuance s wer e reque sted in order for Be nton’s ro t at i n g ca s t of counsel to g et up to speed. Additionally , two continuance s wer e reque sted to acc ommo d a te d e f e n s e c ounsel’s schedule , and one

was reque sted beca

use of the medical condi t i o n of one of defe nse counsel’s family members. Def ense counsel also reque sted additional time o n fo u r o cca sions due to difficulty acc essing the Go v er n m en t ’s discovery materia ls. Three reque sts for additional time wer e made as a result o f defe nse counsel’s ong oing neg otiations with the Gover nment. Finally , Be nton and his counsel
reque sted additional time without further e x planation on nine other occa sions. All of the motions
to continue and reque sts for additional time wer e g rante d by the district court with no objection from the Gover nment. For i t s part, the Gover

nment reque sted two continuance s beca use of scheduling conflicts. One o f th e G o v e r

n me n t’ s mo ti o n s to continue resulted in supplanting Be nton’s previously -sche duled trial date with a suppression hear ing. The second mo t i o n t o continue cause d a 24-day delay by - 4 -Nos. 09-5500 and 09-6200

United States v. Flowers and Benne tt moving the trial date from Dec ember 12, 2008 to J anuar

y 5, 2009. The district cour t g rante d both of the Gove rnment’s motions with no objection from B enton. II. ANALYSIS A. Benton and F low ers’ s Su ff iciency of the Evid ence C laim Standard of Re view and Re levant L aw A district court’s denial of a defe ndant’s motion for acquittal based on insufficient evidenc e is revie wed de novo. United States v. Mabry , 518 F.3d 4 4 2 , 4 4 7 -4 8 (6 th Cir. 2008). The Constit ution “prohibits the cr iminal conviction of any person ex cept upon proof of g uilt bey ond a

rea sonable doubt,” Jack

son v. Virginia , 443 U.S. 307, 309 (1979), and we must “view the evidenc e in the light most favor able” to the Gover nment, deter

mining whether any “ra tional trier of fac t could have found the essential elements of the crime bey ond a rea sonable doubt.” Id. at 319. Towar d that end, we revie w all evidenc e and resolve “all rea sonable infere nces in favor of the g overnme nt.” United States v. Hughes , 505 F.3d 578, 592 (6th Cir. 2007)

. Fur ther, “it must be reme mbere d that circ umstantial evidenc e alone can sustain a g uilty verdic t and such evidenc e need not remove ever y

rea sonable hy

pothesis except that of g uilt.” Id. (interna l quotations and altera tions omitted). As such, “[t] his standard is a gre at obs tacle to overcome and pre sents the appe llant in a criminal ca se with a ver y heavy burden.” Id. (interna l citations omit ted). Analy sis The Def endants arg ue that the Gover nment produce d insufficient evidenc e to convict them of Count Two. The statute at issue in Count Two provides that any person “who, in further ance of [a drug traff

icking ] cr ime, possesses a firea rm, shall, in a ddition to the punishment pr ovided for

. . - 5 -Nos. 09-5500 and 09-6200

United States v. Flowers and Benne tt

. [t he] drug traff

icking crime . . . be sentenc ed to a ter m of imprisonment of not less than 5 y ear s . . . .” 18 U.S.C. § 924(c) (1)( A)(i)

. “To prove the possession was ‘in further ance of’ the drug traff icking crime, the Gover

nment
must show a ‘spec ific nexus betwee n the gu n and the crime char g ed’ and that the firea rm ‘wa s strateg ically

located so tha

t it is quickly

and easily available for use.’” United St ates v. Ham , 628 F.3d 801, 808 (6th Cir. 2011) (citing United St ates v. Macke y , 265 F.3d 457, 462 (6th Cir. 2001)) (interna l citations and quotations omitted). Other rele vant fac tors include: “(1) whether the g un was loaded, (2) the ty

pe of wea

pon, (3) the leg ality of its possession, (4) the ty pe o f d rug activity conducte d, and (5) the time and circ umstances under which the firea rm was found.” Id. at 808-09. This Court has considere d whether a defe ndant possessed a firea rm “in further ance of” a drug
t ra ff i ck i n g crime on multipl e occa sions. I n Mack ey , “ther e was an illega lly possessed, loaded, short-bar rele d shotgun in the living room of the cra ck house, easily acc essible to the defe ndant and located ne ar the scale s and ra zor blades.” 265 F .3d at 462. The defenda nt was “stopped by

police

near the g un, possessed coca ine and a larg e sum of cash,” and as a

result, “a rea sonable jury

could infer that the purpose of the firea rm was to provide defe nse or deter renc e in further ance of the drug traff icking for whic h defe ndant was a rre sted.” Id. at 462-63. I n Swafford , this Court aff irmed a defe ndant’s conviction for violating 18 U .S.C. § 924(c) wher e the defe ndan t possessed a .45 caliber pistol that “wa s strateg ically located so that it was quickly and easily available for use. The g un was found loaded, with its handle pointing up, within arm’s rea ch of the bed wher e [t he defe ndant] was ly ing.” United States v. Swafford , 385 F.3d 1026, 1029 (6th Cir. 2004). The Swafford Court noted that the firea rm was a semiautomatic, and - 6 -Nos. 09-5500 and 09-6200

United States v. Flowers and Benne tt considere d the Drug Enforc ement Administration (“D EA”) Ag ent’s trial court testimony that “such

wea pons play a role in drug distribution, as deale rs car ry them fo r p ro t ection and intimi dation purposes.” Id

. The Swafford defe ndant was also a convicted felon, rende ring his possession of the
g un unlawful. Id. “F inally , the g un was discovere d as the office rs executed a sear ch war rant looking for dr ug s, which they

ultimately

found.” Id. Most rec ently , in Ham , this Court aff irmed a defe ndant’s conviction for possessing a firea rm “in further ance of” his drug offe nses wh en t he defe ndant possessed a “loade d 9 mm pistol

. . . located a bout head- high on top of an a rmoire situated just outside the closet whe re the drug s were found.” Ham , 628 F.3d a t 809. The Ham Court observed multiple similarities to Swafford : Simi lar to the DEA Ag ent’s test i m o n y i n Swafford , Ag ent L ewis testified that persons involved in drug traff icking almost alway s have g uns beca use “it’s an illega l business, and the only way they can protec t this illega l business is throug h violence or the threa t of violence.” L ike Swafford , Def endant could not l aw fu lly possess a handg un beca

use he was a convicted felon. Also, as in Swaffo r d , “t h e g un was discovere d as t he officer s executed a sear ch warra nt l o o k i n g for drug s, which they ultimately found.” The nexus betwe en the offe nse and g un is e ven strong er than in Swafford beca

use the g un was found in closer proxi mity to the drug s, i.e., in the same room. We conclude that a rational trier of fac t could have found bey ond a rea sonable doubt that Def

endant possessed a firea

rm in further ance of a drug traff icking offe nse. Id. (interna l citations and altera tions omi tted). The evidenc e ag ainst Be nton and Flowe rs in this case reve als an even closer nexus betwee n the g un and the crime char g ed than in Mack ey , Swafford , and Ham

. Her e, Offic er J ames observe d both Be nton and Flowe rs in phy sical possession of the firea rm during the drug traff

icking offe nse. Fur ther, wher eas the firea

rm in Mack

ey , Swafford , and Ham was mere ly “strate g ically located,” the firea rm in this case was ac t i v el y passed betwee n Be nton and Flowe rs. Much like in Ham and

- 7 -Nos. 09-5500 and 09-6200

United States v. Flowers and Benne tt Swafford , Offic er J ames testified that Be nton and Flowe rs brandished the firea rm to establish their firepow er a

nd preve nt a possible robber y . Be nton and Flowe rs both rely heavily on the fac t that Offic er J ames’s video does not depict

a firea rm and they claim that the sound of rac king the g un is absent. Yet Offic er J ames provided a

rea sonable ex planation as to the poor quality of the video, and his testimony provided adequate g rounds for convicting Be nton and Flowe rs of Count Two in light of Mack ey , Swafford , and Ham. The verdic t indicates that the jury cre dited Offic er J ames’s testimony and g ave it more weig ht than the video. I n this context, Be nton and Flowe rs do not meet their heavy burden of demonstrating that the evidenc e, considere d in the light mos t fa vorable to the g overnme nt, fails to support their conviction. Be cause a ra tional trier of f act c ould have f

ound that Be nton a

nd Flowe rs possessed a firea rm based on O ffice r James’s testimony , their insufficie ncy -of- the-e vidence claim fa ils. B. Benton’s S ixth Am endm ent Speedy Trial Claim Standard of Re view and A pplicable L aw I n assessing whether a defe ndant’s Six th Amendment rig ht to a speedy trial was violated, this Court revie ws questions of law de novo and questions of fac t for clea r err or. United States v. Brown , 498 F.3d 523, 530 (6th Cir. 2007). The S i x t h Am en d m ent g uara ntees that “[i] n all criminal
prosec utions, the acc used shall en j o y t h e ri g ht to a speedy

. . . trial.” The Supreme Court has established a four -f

ac t or test for evalua ting a Six th Amendment speedy trial claim: (1) leng th of delay ; (2) the rea son for the delay ; (3) the defe ndant’s asser tion of his rig ht; and (4) prejudice to the defen d an t

. Barker v. W

ingo , 407 U.S. 514, 530 (1972). None of these four fac tors constitutes “a

nece ssary or sufficie nt condition to the finding of a depriva tion of the rig ht of speedy trial. Rather, - 8 -Nos. 09-5500 and 09-6200

United States v. Flowers and Benne tt t h ey ar e rela ted factors and must be considered togethe r wit h such ot her circumstanc es as may b e rele vant.” Id. at 533. “The reme dy for a Six th Amendment speedy -trial violation is dismiss al with prejudice .” United States v. Brown , 498 F.3d 523, 530 (6th Cir. 2007). We examine eac h fac tor in
turn.

a. Length of the Delay The first fac tor is “ac tually a double enquiry .” Doggett v. United States , 505 U.S. 647, 651 (1992). We beg in by deter mining whether there is a delay that trig g ers a speedy trial ana ly sis. Id.
at 651-52. “De lay is measure d from the date of indictment or the date of arr est, whicheve r is ear lier,
to the date of trial.” United States v. Brown , 169 F.3d 344, 349 n.3 (6th Cir. 1999) (citaiton omitted). A delay that approa ches one y ear is “pre sumptively prejudicia l,” and trig g ers a speedy trial analy sis. Doggett , 505 U.S. at 652 n.1. Once speedy trial analy sis is trig g ere d, the “cour t must then consider,

as one fac tor among sever al, the extent to which the delay stretche s bey ond the bare mi n i m u m neede d to trig g er judicial examination of the claim.” Id. This Circuit has held that the “streng th of
t h [ e] presumption [of prejudice ] g rows as the leng th of that delay extends.” United States v. Graham , 128 F.3d 372, 376 (6th Cir. 1997). Fur ther, “the delay that can be tolerate d for an ordinary
street crime is c onsiderably less than for a serious, complex conspira cy char g e.” Barker , 407 U.S. at 531. Her e, Be nto n was indicted on J uly 18, 2006, and his trial beg an on J anuar y 6, 2009. The Gover nment conce des that the 904-day lag betwee n indictment and trial trig g ers the s p ee dy trial

an al y s is but arg ues t hat t he facts of this case are sufficie nt to rebut the presumption of prejud i ce . Gov’t Br

. at 29. Specifica lly , the Gover nment co n t ends that “[i] n Doggett the leng th of delay at - 9 -Nos. 09-5500 and 09-6200

United States v. Flowers and Benne tt issue was eig ht and a half y ear s, and in Mundt , the delay at is s u e wa s t h re e and a half y ear s. I n compar ison, the two y ear and six month delay in the instant case is compar atively brief.” Gov’t Br

. at 30. The Gover

nment also asser

ts that “the statute of limit ations for the offe nses for which Be nton

was char g ed i n 2 0 0 6 i s five y ear s. There fore , the United States arg uably could have waited until 2011 befor e pre senting Be nton’s case to the Gra nd J ury .” Id. at 30-31. We find that the Government failed to rebut the presumption of prejudice. First, t h is case bear s littl e rese mblance to the fac ts in either Doggett or Mundt

. I n Do g g et t , t h e Supreme Court found a speedy trial v i o l ati on wher e the 8 1⁄2 y ear s passed betwee n a defe ndant’s indictment for a

coca ine conspirac y and his arr est. Doggett , 505 U.S. at 648-50. I n Mundt , the Six th Circ uit found

no speedy trial violation wher e the d ef en d an t knew he was under investiga tion by the I nterna l Revenue Service but was not arr ested for over three y ear s beca use the Gover

nment was “re asonably diligent.” Mundt , 29 F.3d at 236. I n contra st to both Doggett and Mundt , Be nton was incar cer ated for 9 0 2 o f t h e 9 0 4 day s betwee n the indictment and trial. Fur ther, Be nton’s crime was more straig htforwa

rd than the coca ine conspirac y at issue in Doggett or the tax evasion at issue in Mundt

. Second, the Gove rnment’s a ssertion that “the r elatively short leng th of delay in the i nstant

case arg ues ag ainst a finding that the level of ‘pre sumptive prejudice’ should r esult in dismissal,” Gov’t Br

. at 30, is not supported by prec edent or even common sense. On ce t h e defe ndant has passed the one-y ear threshold a presumption of prejudice automatically inhere s, and time above and bey ond the one- y ear

mark stre ng thens the pre sumption of prejudice. Graham , 128 F.3d a t 376. Finally , the Gover

nment’s arg ument reg arding the statute of limit ations is beside the point. The statute of limit ations for a crime is inapposite in speedy trial analy sis, wh i ch ex am i nes “the - 10 -Nos. 09-5500 and 09-6200

United States v. Flowers and Benne tt interval betwee n acc usation and trial.” Doggett , 505 U.S. 647; see also United States v. MacD onald , 4 65 U.S. 1, 6 (1982) (expl aining that “the Speedy Trial C lause of the S ix th Amendm en t d o es n o t apply to the period befor e a defe ndant is ind icted, arr ested, or otherwise officia lly acc used.”)

. Acc ording ly , the Gover

nment’s point that it could have waited u n ti l 2 0 1 1 befor e prese nting Be nton’s

case to the Gra

nd J ury does nothing to rebut the pre sumption of prejudice in this case

. b. Reason for the De lay As the Supreme Court e x plained: A d el i b era te attempt to delay the trial in order to hamper the defe nse should be weig hted heavily ag ainst the g overnme nt. A more neutra l rea son such as neg lige nce or overc rowde d courts should be weig hted less heavily but n ev er t h eless should be considere d since the ultimate responsibility for such circ umstances must rest with the g overnme nt rathe r than with the defe ndant. Finally , a valid rea son, such as a missing witness, should serve to justify appropr iate dela

y . Barker , 407 U.S. at 531. This spectrum ref lects the rea lity that “pre trial delay is often both inevitable and wholly justifiable.” Doggett , 505 U.S. at 656. As with the first Barker fa ct o r, t h is fac tor involves a two-step inquiry : first, deter mine which party bear s the primary responsibility for the delay

. Second, wher e the Gover nment is at fault for the delay , this Court must deter mine how much weig ht to assig n this fac tor. Whil e simple neg lige nce does not automatically compel relief , “neither is neg lige nce a

utomatically

tolerable simply

beca use the a ccuse d cannot demonstrate ex actly how it has prejudice d him.” Id

. at 657 (g ranting relief wher e “[t] he lag betwee n Dog g ett’s indictment and

arr est was 8 1⁄2 y ear s, and he wo u l d have fac ed trial 6 y ear s ear lier than he did but for the Gover nment’s inexcusable oversig hts” in failing to diligently pursue him upon his return to the United States).

- 11 -Nos. 09-5500 and 09-6200

United States v. Flowers and Benne tt Her e, the Gover

nment arg ues that the vast majori t y o f t h e d elay “wa s attributable to the d e f e n d a nt beca use of various continuance s reque sted by Be nton’s counsel, the withdraw a l o f o r ig in a l trial counsel due to a conf lict, the withdrawa l of subs equent trial counsel due to the br eakdow n of the attorney -client rela

tionship, and the appointment of and p re p ar at ion by new counsel in eac h i n s t an ce . ” Gov’t Br. at 31. I n support of t his arg ument, the Government cites t o United St ates v. Robinson

. 455 F.3d 602, 608 (6th Cir. 2006) (upholding t h e district court’s attribution of the majority of the 17-month delay to the defe ndant “bec ause of various cont i n u an ce s requested by defe ndant’s counsel, the withdrawa l of defe ndant’s orig inal counsel due to defe ndant’s complaints

concer n i n g the breakdown of their relationship, the appointm ent of new counsel, and defenda nt’s reque sts for additional time to file a supplemental memorandum in s u p p o rt of his motion to dismiss ”). Whil e Be nton acknow ledg es that he reque sted n u me r o u s c o n ti n

u ance s, he arg ues that he only did so beca

use the Gover

nment “either failed to provide complete discovery or beca use the discovery fr o m t h e g overnme nt was defe ctive.” Be nton’s App. Br

. at 21. As such, Be nton arg ues that th e delay cause d by

the continuanc es is proper ly char g ed ag ainst the Gover nment. There is support for Be nton’s position in Supreme Court prec edent. I n Barker , the Supreme Court noted: “The g overnme nt, and for that matter, the trial court are not without responsibility for the expeditious trial of criminal case s. The burden for trial promptness i s n o t solely upon the defe nse.” 407 U.S. at 527 n.27. I n Vermont v. Brillion , 556 U.S. 81, 94 (2009), the Supreme Court explained that “institut ional problems” a nd other “[d] elay resulting from a sy stemic brea kdown . . . could be c harg ed to the State.” - 12 -Nos. 09-5500 and 09-6200

United States v. Flowers and Benne tt Simi larly , this Circuit has held that dilatory district court action may justify g ranting a defe ndant’s speedy trial claim. I n Graham , this Court g rante d a defe ndant’s speedy trial claim when the district court took eig ht y ear s to resolve a discovery dispute, finding that “much of the blame for the delay

. . . [ fe l l ] o n t h e g overnme nt and on the district court.” 128 F.3d at 375. Simi larly , in Maples v. Stegall , this Court conclude d that “[u] ltimately , as in Graham , the re sponsibili ty for .

. . delay s in this case must re st w ith the trial court” beca use the trial court “fa iled to a ssert itself in an attempt to move the proce ss along .” 42 7 F. 3 d 1020, 1028 (6th Cir. 2005) (interna l altera tions omitted). I n sum, both the prosec utor and the district court bear an aff irmative responsibility to

ensure an expeditious trial process. I n this case , the district court dutifully held reg ular status confe renc es. At the same time, we find it striking that—even thou gh t he district court char acte rized this as a “straig htforwa rd case ” from the very beg inning—the district court gra nted 23 continuance s to the parties over the course of 904 day s. Moreove r, many of these continuance s wer e g rante d as a result of persistent problems, such as defe nse counsel’s inability to acc ess discovery materia ls. I n addition, the district court failed
to rule on the Def

endant’ s motion to suppress. Finally , the district court ignor ed Be n t on’s pro se motion asser

ting his speedy trial rig hts, citing local court rules, and instructed the Clerk of Court to ignor e subseque nt motions from B enton. We do not find this rec ord “automatica lly tolerable ,” Doggett , 505 U.S. at 657, but we also do not believe that it merits relief

. The vast majority of the continuance s wer e reque sted by Be nton; only two wer e reque sted by the Gover nment. E v en i f we acc ept Be nton’s arg ument that the
prosec ution was to blame for many of these continuance s beca use of technica l difficulties with the - 13 -Nos. 09-5500 and 09-6200

United States v. Flowers and Benne tt discovery , the Gover

nment aptly

noted that “ther e wa s never a motion to compel discovery of any kind filed i n this case , nor a complaint reg arding discovery violations made by any of t he three of Be nton’s trial counsel direc ted at the g overnme nt.” Gov’t Br

. at 33. Acc ording ly , whi le we are disconce rted by the 904-day lapse, we cannot say that the Go v er nment and the district court are “more to blame for the delay .” Maples , 427 F.3d a t 1026.

c. Defendant’

s Assertion of Speedy Trial Right The third fac tor considers whether the defe ndant eff ectively asser

ted his speedy trial rig ht. Contex t is critical: “The streng th of his eff orts will be affec ted by the l eng th of t he delay , to some
extent by the rea son for the delay , and most particula rly by the persona l prejudice , which is not alway s rea dily

identifiable, that he experience s.” Barker , 407 U.S. at 531. Her e, Be nton most clea

rly asser ted his speedy trial rig ht in his pro se moti on entitled “De fenda nt’s Assertion of His Speedy Trial R ights.” The re cord a lso revea ls additional instances wher e Be nton a sserted his speedy trial rig ht. For example, in his pr o se motion for discovery , Mr. Be nton ag ain revisited his reque st for a speedy trial: “B eca use y ou set me a trial date for April afte r y ou[] rec eived my Speedy Trial Motion, I thought I was g oing to be set for a trial date when I went
to video court Marc h 28, 2008

. . . I have been try ing to g o to trial for a long time.” R.E. 138 at 21. Signific an t l y , the district court rec og nized that Be nton was attempting to asser t his constitutional rig ht to a speedy trial; at the Dec ember 1, 2008 status co nfer ence , the district court noted: “Mr. Be nton say s he has rea ched his limit

. This case has been pending over a y ear now and he’s rea dy to g o to trial.” Tr. 12/1/08, p. 3.

- 14 -Nos. 09-5500 and 09-6200

United States v. Flowers and Benne tt The Gove rnment ar g ues that “[t] here was no mot ion filed by any of Benton’s trial counsel

asser ting a violation of Be nton’s rig ht to a speedy trial under the Six th A mendment.” Gov’t Br

. at 33. The Gover

nment continues: “B enton’s ‘asse rtion of his rig hts’ befor e the district court was made throug h his filing of a pro se motion, in violation of l ocal rules

. . .” Id

. The Gove rnment fa ils to cite to the local rule that Be nton violated, howeve r, and Be nton’s reply brief aptly notes that “[t] here is no citation beca

use there is no such local rule.” Be nton’s Reply , p. 17. Fur ther, the Gover

nment’s arg ument fails to addre ss the hear t of the Barker inquiry , which asks t h i s C ourt to consider the streng th of the def

endant’ s assertion of his spee dy trial rig hts. W e fi nd that the timing of Be nton’s pro se motion calls into question whethe r Be n t o n vigor ously asser

ted his r ights. Although Be nton was indicted on J uly 18, 2006, he first mentioned that he wanted a speedy trial on Aug ust 30, 2007, and he waited until Fe b ru ar y 7 , 2008 to file hi s motion for a speedy trial. Although the district court fa iled to expl icitly rule on B enton’s re quest, other courts have found that a delay of fiftee n months in asser ting speedy trial rig hts weig hs ag ainst

a defe ndant. Robinson , 455 F.2d at 608. Her e, Be nton waited at least twelve months and arg uably
sevente en months befor e reque sting a speedy trial. Acc ording ly , the belated nature of Be n ton’s reque st for a spe edy

trial “ca st[ s] doubt on the s incer ity of t he demand,” Brown , 169 F.3d a t 350, and this fac tor weig hs in favor of the Gover

nment. d. Prejudice to the D efendant Finally , we consider whether the defe ndant was prejudice d “in the light of the interests of defe ndants which the speedy trial rig ht was desig ned to protec t.” Barker , 407 U.S. at 531. Towar d that end, the Supreme Court has identified three rele vant interests: “(i) to preve nt oppressive pretria l - 15 -Nos. 09-5500 and 09-6200

United States v. Flowers and Benne tt incar cer ation; (ii) to minim ize anx iety and conc ern of

the ac cused; a

nd (iii) to limi t the possibili ty that the defe nse will be impaired.” Id

. The Supreme Court doe s not require the defe ndant to offe r “af firmative proof of particula rized prejudice ” beca

use “time’s erosion of exculpatory evidenc e and testimony can r are ly

be shown.” Doggett , 505 U.S. at 655 (interna l quotations omi tted). The Gover

nment ar gu es that “B enton has shown no tactica l advanta g e g ained by the Gover nment from the delay , and Be nton has failed to demonstrate any specific prejudice to his case stemming from the delay .” Gov’t. Br

. at 34. This arg ument is both fac tually inacc urate and beside the point. The re cord reve als that Be nton did offe r aff irmative proof of particula rized prejudice ,

even though he was not require d to do so. S ee Doggett , 505 U.S. at 655

. Most notably , Be nton expressed signific ant anxiety during his incar cer ation as well as conce rn reg arding his health. R.E.
at 3 (“B eing in this situation is destroy ing me mentally and phy sically an d t he rea son for that is beca use I have ne ver be en to jail and I have se izures and I

am a diabe tic.”).

e. Reme dy As the above analy sis indica tes, Be nton sa tisfied eac h of the four Barker fac tors to vary ing deg ree s. The Gover

nment corr ectly arg ues, howeve r, that “eve n a finding in the defe ndant’s favor

on eac h of the four Barker fac tors does not nece ssarily war rant a dismiss al of the indictment, beca use

a dismiss al is require d only when the court finds that a defe ndant’s constitutional rig ht to a speedy trial has been violated.” Gov’t Br

. at 34 (quoting Brown , 169 F.3d 348). Ultimately , satisfy ing the Barker fac tors does not constitute “a nece ssary or sufficie nt condition to the finding of a depriva tion of the rig ht of s p ee d y t ri al. Rather, they are rela ted fac tors and must be considere d toge ther with such other c ircumstance s as may be re levant.” Barker , 407 U.S. at 533.

- 16 -Nos. 09-5500 and 09-6200

United States v. Flowers and Benne tt Ultimately , we conclude that Be nton was not deprive d of his speedy trial rig ht. A violation of the rig ht to a speedy trial only arises when “the circ umstances o f t h e ca s e are such that further delay would endang er the values the rig ht protec ts.” Barker , 407 U. S

. at 522. I n this case , the Gover nment’s neg lige nce does not amount t o m al fe asance, much of the delay is attributable to Be nton’s own actions, and the core of the Six th Amendment rig ht rema ins protec ted beca use Be nton neither timely

nor vig orously

asser ted his claim. C. F low ers’ s Sentencing Claim Standard of Re view and A pplicable L aw A dis tr ic t c o u r t’ s d e te r mi n a ti o n r e g a r d in g a c c e ptance of responsibility is revie wed with “g rea t defe renc e” and will only be disturbed if it is “cle arly err oneous.” United States v. W ebb , 335 F.3d 534, 538 (6th Cir. 2003); see also U.S. Sentencing Guidelines Manual § 3.E.1.1(a) cmt. n.5 (2010). U. S

. S .G. § 3.E1.1(a) provides that, “[i] f the defe ndant clea rly demonstrates acc eptanc e o f responsibility for his offe nse, decr ease the offe nse l ev el b y 2 levels.” The application notes to U.S.S.G. § 3.E1.1(a) instruc t: I n deter mining whether a defe ndant qualifies under subsection (a) , appropr iate considerations include, but are not limit ed to, the following : truthfully admitting the conduct comprising the offe nse(s ) of conviction, and truthfully admitting or not falsely deny ing any additional rele vant co n d u ct for which the defe ndant is acc ountable under §1B1.3 (Releva nt Conduct). Note that a defe ndant is not require d to volunteer, or aff

irmatively admit, rele vant conduct bey ond the offe nse of conviction in order to o b t ai n a reduc tion under subsection (a)

. A defe ndant may rema in silent in respe ct to rele vant conduct bey ond the offe nse of conviction without aff ecting his abil i t y t o o b tain a reduc tion under this subsection. Howeve r, a defe ndant who falsely denies, or frivolously contests, rele vant conduct that the court deter mines to be true has acte d in a mann er i n consi stent with acc eptanc e of responsibility

. . . .

- 17 -Nos. 09-5500 and 09-6200

United States v. Flowers and Benne tt U.S. Sentencing Guidelines Manual § 3.E.1.1(a) cmt. n.1 (2010). Additionally , the notes make clea r that “[a] defe ndant who enter s a guilty plea is not entitled to an adjustm ent under this section as a matter of rig ht.” Id. at cmt

. n.3. Although enter ing a plea ag ree ment befor e trial can constitute “sig nificant evidenc e” that a defe ndant has acc epted responsibility , the application notes caution that “this evidenc e may be outwei g hed by conduct of the defe ndant that is inconsistent with such

acc eptanc e of r esponsibility .” Id. I n this case , the district court car efully co n s idere d the merits of Flowe rs’s reque st for a downwar d depar

ture. The court then r easone d: Now, what happene d is he came in, pled to two of the counts, [and] we went to trial

. . . on the other count, the last count. And that means the g overnme nt was put to its proof. I t wasn’t put to its proof in quite the same way it would have been otherwise, but I doubt that the trial was materia lly shortened beca use y ou have to put on all the proof of Count 1 to get to Count 2. That’s the truth of the matter

. . . . My problem rea lly is this. When y ou look at 31.1, [Flowers] has clea rly demonstrated acc eptanc e of responsibility for hi s o ff en se. And it’s somewhat complicated when y ou have acc eptanc e for some counts but not others. And then y ou g et to 1A. There has to be a truthful admission for a no-fau l t d en ial of additional rele vant conduct which the defe ndant is a ccounta

ble. In this case it’s more than relev ant conduct. It’s a count for which he was convicted. That’s the pr oblem. You with me? Sentencing Tr. at 17-19 (empha sis added)

. Acc ording ly , the district court deter mined that Flowe rs did not ear

n a two-leve l downwar d depar ture beca use his behavior was inconsistent with acc epting responsibility

. Id. at 21. At sentenc ing, Flowe rs denied wrong ful conduct—possessing a firea rm—for which he was convicted. I n turn, the district court rea soned that Flowe rs’s possession of a firea rm was a linchpin for eff ectua ting the drug deal that animated the plea ag ree ment. Acc ording l y , t h e district court’s

rea soning mirrors the approa ch counsele d by the application notes. See U.S. Sentencing Guidelines - 18 -Nos. 09-5500 and 09-6200

United States v. Flowers and Benne tt Manual § 3.E.1.1(a) cmt. n.1 (2010) (“a defe ndant who falsely denies

. . . rele vant conduct that the court de termines to be true has ac ted in a manne r inconsistent with acc eptanc e of r esponsibility

. . .”). Thus, the district court’s de termination was not cle arly err oneous. III. CONCLUSION For the fore g oing r easons, we AF F IRM the district court in all re spects.

- 19 -Nos. 09-5500 and 09-6200

United States v. Flowers and Benne tt HELE NE N. WHITE, Circuit Jud ge , concur ring

. I concur in the majority opinion except as to section I I .C., conce rning Flowe rs’s acc eptanc eof-r esponsibility claim, as to which I concur in the result only

. I do not understand the district court
t o have exercised its discretion under § 3E1.1(a) , and in exercise of that discretion, t o h av e deter mined that an adjustment was not war rante d. Rather, I understand the court to have deter mined that § 3E1.1(a) did not permit a two-leve l reduc tion under these c ircumstance s. 1 Although the r e is g o o d rea son to question this leg al deter mination, I concur in the aff irmance 2

Although the majority is corr ect that the district court’s application of §3E1.1(a) to the 1 specific fac ts of a case is entitled to “g rea t defe renc e” and revie wed for clea r err or, it is also indisputably true that we revie w de novo a district court’s interpre tation of the Guidelines. United States v. Anglin , 601 F.3d 523, 526 (6th Cir. 2010); see also United States v. Tilf ord , 224 F.3d 865, 867 (6th Cir. 2000); United States v. Garrido , 596 F.3d 613, 617 (9th Cir. 2010) (“We revie w de novo whether the district court misapprehe nded the law wi t h re s p ec t to the acc eptanc e of responsibility

reduc tion.”). Application note 1(a) provides, “[i] n deter mining whe t h er a defe ndant qualifies under 2 subsection (a), appropriate co nsiderations i nclude, but are not limit ed to, the foll owing : truthfully admitting the conduct comprising the offe nse(s) of conviction, and truthfully admitting or not falsely deny ing any additional rele vant conduct for which the defe ndant is acc ountable under § 1B1.3 (Releva nt Conduct).” (emphasis added)

. The application notes plainly st at e that rele vant conduct is assessed acc ording to § 1B1.3. I n turn, § 1 B1 .3 provides that rele vant conduct for purposes of “adjustments i n Chapter Th re e” s h al l be determined based on, among other thi ng s, “off enses of a char acte r for

which § 3D1.2( d) would re quire g rouping of multiple counts.” Ba sed on the interpl ay b etwee n these provisions, sever al circ uits have held that a district court reta ins discretion to apply the acc eptanc e-of -re sponsibili ty reduc tion when a defe ndant pleads g uilty to all “g rouped” char g es but never theless contests the fac tual basis of a § 924(c) char g e. See Garrido , 596 F.3d at 619 (9th Cir. 2010) (“We j o i n o u r s i s t er circ uits in holding that, wher e a defe ndant acc epts responsibility for all counts that are g rouped under U.S.S.G. §§ 3D1.1-3D1.5, that d ef en d ant is elig ible for the § 3E1.1 reduc tion for those counts, even if the defe ndant has n o t acc epted responsibility for other counts which, under § 3 D1.1(b), are excluded from g rouping .”); United States v. Hargrove , 478 F.3d 195, 200 (4th Cir. 2007) (“[ U] nder the terms of U. S

. S.G § 3E1.1, the defendant must only acc ept responsibil ity for the g rouped guide lines counts in order to be elig ible for the reduc tion in offe nse level for that particula r ‘off ense.’ ”); United States - 20 -Nos. 09-5500 and 09-6200

United States v. Flowers and Benne tt

never theless beca

use the rec ord of the sentenc ing proce eding makes clea r that the district court was deter mined to, a

nd did in fac t g ive, Flowe rs what it f elt was appropr iate cre dit for having acc epted responsibility for the two drug counts. The Guidelines as calc ulated y ielded a rang e o f 1 0 0 -125 months, with a mandatory five-y ear conse cu t i v e sentenc e for the § 924(c) conviction. I f the calc ulations had included a two-leve l reduc tion for acc eptanc e of responsibility for the g rouped offe nses, Flowe rs’s Guidelines r ang e would have been 84- 105 months. Flowers’ s counsel ar g ued for an 84-month sentenc e. I n discussing whether to vary from the 100-125- month rang e, the district
court eng ag ed in a thoroug h examination of the offe nses and Flowe rs’s backg round, concluding that the sentenc ing fac tors would cause it to sentenc e at the bottom of the g uidelines. The co u rt t hen explained that application of t h e Guidelines did not result in an appropr iate sentenc e beca use the calc ulation did not take into acc ount Flowe rs’s acc eptanc e of responsibility for Counts 1 and 8. The
court then g rante d a varia

nce that it thought adequately rec og nized the acc eptanc e of responsibility ,

v. W attree , 431 F.3d 618, 622 (8th Cir. 2005), abrogated on other grounds, as stated in United States v. Anderson , 618 F.3d 873 , 8 80 (8th Cir. 2010); United St ates v. W illiams , 344 F.3d 365, 380 (3d Cir. 2003). Our decision in United States v. Chambers , 195 F.3d 274 (6th Cir. 1999) is not contra ry to these decisions. I n fac t, the Chambers court ag ree d that “U.S.S.G. §1B1.1 direc ts courts to g roup convictions prior to a

pply ing a n adjustment for a cce ptance of re sponsibili ty .” 195 F .3d at 278-79 (empha sis added)

. The basic rationale is that the Guidelines dictate that in a multi-count conviction, convictions must be ‘g roup ed ’ b ef o re d et er m i n i n g t h e b as e- o ff en s e level. See U.S.S.G. § 3D1.1(a )(1)

. Specifica lly excluded from g rouping are char g es that car ry a statutory mandatory -minimum term of imprisonment that runs consec utively to any Guidelines sentenc e. Id. ; § 3D1.1(b) & cmt. 1. Since the acc eptanc e of responsibility is a two-leve l reduc tion i n the baseoffe nse level, it makes littl e sense that the acc eptanc e-of -re sponsibili ty deter

mination turn on a nong rouped offe nse. Be cause § 924(c) car ries an automat ic , c o n s e c u ti v e mandatory -minimum sentenc e, it is not g rouped and there fore not fac tored into the base- offe nse level at all. Thus, the district could have, but wa s not obliged to, g rant a two-leve l reduc tion under § 3E1.1(a ).

- 21 -Nos. 09-5500 and 09-6200

United States v. Flowers and Benne tt and imposed conc urre nt 92-month sentence s for Counts 1 and 8. B eca use it is clear

that the court would have imposed the same sentenc e without r eg ard to how it sc ored § 3E1.1(a) , I concur in the majority opinion.

- 22 -