                                                                                     FILED
                                                                         United States Court of Appeals
                     UNITED STATES COURT OF APPEALS                              Tenth Circuit

                                      TENTH CIRCUIT                            March 24, 2014

                                                                             Elisabeth A. Shumaker
                                                                                 Clerk of Court
UNITED STATES OF AMERICA,

              Plaintiff - Appellee,

v.                                                            No. 13-5052
                                                    (D.C. No. 4:12-CR-00163-JHP-2)
RYAN LEE MITCHELL, a/k/a Ray Tone,                            (N.D. Okla.)

              Defendant - Appellant.




                              ORDER AND JUDGMENT*


Before HARTZ, O'BRIEN, and HOLMES, Circuit Judges.


       Ryan Mitchell complains about the denial of his motion to dismiss a federal

indictment on two charges relating to a bank burglary. The indictment came only nine

days before the expiration of the statute of limitations. The delay foreclosed the

possibility of him serving his federal sentence concurrently with a state sentence he was


       *
        The parties have waived oral argument. See Fed. R. App. P. 34(f); 10th Cir. R.
34.1(G). This case is submitted for decision on the briefs.
        This order and judgment is an unpublished decision, not binding precedent. 10th
Cir. R. 32.1(A). Citation to unpublished decisions is not prohibited. Fed. R. App. 32.1.
It is appropriate as it relates to law of the case, issue preclusion and claim preclusion.
Unpublished decisions may also be cited for their persuasive value. 10th Cir. R. 32.1(A).
Citation to an order and judgment must be accompanied by an appropriate parenthetical
notation B (unpublished). Id.
serving on another crime. That, he contends, violated several of his constitutional rights.

He is wrong.

                  BACKGROUND AND PROCEDURAL HISTORY

       On September 15, 2007, Mitchell burglarized a bank’s automated teller machine

(ATM). About 18 months later, he robbed a drugstore. He was prosecuted for the

drugstore robbery in state court where he pled guilty and was sentenced to seven years

imprisonment. Because of his exemplary behavior while in prison, he was paroled after

serving less than two years of his prison term. After his parole, he found a job, passed his

drug tests, and even began to repay his court costs. He also began taking care of his

mother, who suffers from stage 4 cancer. Despite his apparent reformation, a federal

grand jury indicted him on two charges related to the 2007 bank burglary. The

indictment issued on September 6, 2012—nine days prior to the expiration of the five-

year limitation period for the charges.

       Mitchell moved to dismiss the indictment. He alleged (1) unreasonably delayed

prosecution; (2) double punishment; (3) vindictive prosecution; and (4) denial of his right

to a speedy trial. Much of his argument was premised on an incident that occurred while

he was imprisoned. According to his motion, in early 2010, two FBI agents attempted to

interview him regarding the bank burglary. Mitchell refused to waive his Miranda rights

and declined to answer their questions without the presence of counsel. The agents

terminated the interview. Mitchell supposes the prosecution was delayed to punish him

for invoking his Miranda rights. He suggests prosecutors were motivated by a desire to

minimize any possibility of his imprisonment on the federal bank burglary charges

running concurrently with his state sentence for the drugstore robbery.




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       After holding a hearing on Mitchell’s motion to dismiss, a magistrate judge issued

a report recommending its denial. Mitchell objected, but the district judge accepted the

recommendation. Mitchell then pled guilty under a plea agreement reserving his right to

appeal from the denial of his motion to dismiss and was sentenced to imprisonment for

21 months—the maximum sentence under the United States Sentencing Guidelines.

                                       DISCUSSION

       As he did in the district court, Mitchell contends the indictment should have been

dismissed because of (1) unreasonably delayed prosecution; (2) double punishment; (3)

vindictive prosecution; and (4) denial of his right to a speedy trial. He is still wrong.

       We review a denial of a motion to dismiss for abuse of discretion. United States v.

Madden, 682 F.3d 920, 929 (10th Cir. 2012). Under this review standard, we review de

novo the judge’s application of the law and review any factual findings for clear error.

See United States v. Contreras, 108 F.3d 1255, 1262 (10th Cir. 1997); accord United

States v. Orona, 724 F.3d 1297, 1300 (10th Cir. 2013) (concluding the issue of “whether

a criminal sentence violates the Eighth Amendment’s prohibition against cruel and

unusual punishment” is a legal issue we review de novo), cert. denied, 134 S. Ct. 662

(2013).

A.     Unreasonably Delayed Prosecution

       The Fifth Amendment prohibits the government from depriving a person “of life,

liberty, or property, without due process of law.” U.S. Const. Amend. V. Although the

Sixth Amendment’s guarantee of a “speedy trial” is not applicable to pre-indictment

delay, the Fifth Amendment’s due process clause requires the dismissal of charges

against a defendant when (1) the government has caused the delay to obtain a tactical

advantage or to harass the defendant, and (2) the delay has, in fact, unfairly prejudiced


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the defendant’s case. United States v. Revada, 574 F.2d 1047, 1048 (10th Cir. 1978).

These deeply restrictive criteria are a natural consequence of the prosecutor’s wide

discretion to decide when to bring charges. See generally United States v. Lovasco, 431

U.S. 783 (1977).

       The only prejudice Mitchell claims is foreclosure of the possibility of concurrently

serving his federal and state sentences. Yet even if the government had brought its

charges earlier, Mitchell would have only had the opportunity to request concurrent

sentencing. See 18 U.S.C. § 3584(a). He would not have been entitled to it. See id.

Under our jurisprudence, such prejudice is too speculative to implicate the due process

concerns attendant to pre-indictment delay. Madden, 682 F.3d at 929-30.

B.     Double Punishment

       Is it inappropriate for the federal government to punish Mitchell “in 2012 for what

he did in 2007?” (Appellant Br. 23.) He thinks so and views it as especially unfair since

the delayed federal indictment foreclosed the possibility of concurrent sentences, as we

just discussed.

       To be clear, as we read his brief, he does not argue he was twice punished for the

same offense or the same crime in violation of the Fifth Amendment’s double jeopardy

proscription. Rather, he bases his argument on the cruel and unusual punishment clause

of the Eighth Amendment. He cites Graham v. Florida, 560 U.S. 48 (2010), where the

Supreme Court explained that, under the Eighth Amendment, punishments must be

proportionate to the crime. Id. at 59-60; see Orona, 724 F.3d at 1300.

       When considering the proportionality of a “term-of-years” sentence, we examine

all the circumstances of the defendant’s case. Graham, 560 U.S. at 59. We uphold any

sentence except those “‘extreme sentences that are grossly disproportionate to the


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crime.’” Id. at 60 (quoting Harmelin v. Michigan, 501 U.S. 957, 1001 (1991) (Kennedy,

J., concurring in part and concurring in judgment); see also Graham, 560 U.S. at 59-60

(noting Justice Kennedy’s concurrence is the “controlling opinion” in Harmelin). We

“begin by comparing the gravity of the offense and the severity of the sentence.”

Graham, 560 U.S. at 60. If we believe the punishment disproportionate, we “should then

compare the defendant’s sentence with the sentences received by other offenders in the

same jurisdiction and with the sentences imposed for the same crime in other

jurisdictions.” Id.

       Here, although the timing of Mitchell’s indictment foreclosed the possibility of

concurrent sentences, his sentence was not disproportionate. On the contrary, his

sentence was within the range applicable under the sentencing guidelines. The guideline

ranges were developed empirically from data about existing sentences with the goal of

ensuring proportionality. See United States v. Sullivan, 895 F.2d 1030, 1032 (5th Cir.

1990) (“Developed from empirical research with the goal of making the punishment fit

the crime, the Guidelines are a convincing objective indicator of proportionality.”); see

also United States v. Jones, 696 F.3d 695, 699 (7th Cir. 2012) (“[I]f a district court has

correctly calculated the Guidelines range, we assume that significant consideration has

been given to avoid unwarranted disparities between sentences.”), cert. denied, 133 S. Ct.

916 (2013). We do not generally regard a within-guideline sentence as so grossly

disproportionate as to constitute cruel and unusual punishment. See United States v.

Nicholson, 17 F.3d 1294, 1299 (10th Cir. 1994); United States v. Hughes, 901 F.2d 830,

832 (10th Cir. 1990). No reason exists to stray from that general rule.




                                                -5-
C.     Vindictive Prosecution

       Next, Mitchell argues his prosecution was an impermissibly vindictive response to

his assertion of his Miranda rights. He views the timing of the September 6, 2012,

indictment as suspicious in light of the prosecution’s awareness of his incarceration for

the drugstore robbery and his refusal to waive his Miranda rights in 2010. Mitchell has

failed to demonstrate vindictiveness.

       “When a defendant exercises constitutional or statutory rights in the course of

criminal proceedings, the government may not punish him for such exercise without

violating due process.” United States v. Raymer, 941 F.2d 1031, 1040 (10th Cir. 1991).

On such a vindictiveness claim, “the defendant bears the burden of proving either ‘(1)

actual vindictiveness, or (2) a realistic likelihood of vindictiveness which will give rise to

a presumption of vindictiveness.’” United States v. Wall, 37 F.3d 1443, 1447 (10th Cir.

1994) (quoting United States v. Wood, 36 F.3d 945, 946 (10th Cir. 1994)). Although it

would be unusual to recognize a presumption of vindictiveness in the pre-trial context,

we can presume vindictiveness when the defendant shows “a realistic or reasonable

likelihood” that a prosecutor’s decision “would not have occurred but for hostility or

punitive animus toward[] the defendant because he exercised his specific legal right.”1

Raymer, 941 F.2d at 1042 (quotation marks omitted); accord Wall, 37 F.3d at 1448. “If

the defendant successfully bears that burden, the prosecution must ‘justify its decision

with legitimate, articulable, objective reasons’ for its actions.” Wall, 37 F.3d at 1447

(quoting Raymer, 941 F.2d at 1040).


       1
         Contrary to the magistrate judge’s assessment, we have not “acknowledge[d] that
there is no presumption of vindictiveness in the pretrial context.” (R. Vol. I at 124.) See
Raymer, 941 F.2d at 1040 (“[W]e have rejected the idea that a presumption of
vindictiveness may never arise in the pretrial setting.”).

                                                -6-
       The problem with Mitchell’s argument is that the prosecutor merely charged him

with a crime he concedes he committed. Unlike other vindictive prosecution cases, this is

not a case where the prosecutor brought more charges or more severe charges after the

defendant asserted a legal right or successfully challenged a conviction on appeal. See

Raymer, 941 F.2d at 1040; see also id. at 1041 (“[F]ederal courts repeatedly have rejected

the idea that federal prosecution, after state proceedings, constitutes vindictive federal

prosecution.”). Even viewing the facts in a manner generous to Mitchell, the facts only

tenuously suggest the prosecution’s charging decision was intended to improperly punish

him.2 Since the defendant bears the burden of demonstrating “a realistic or reasonable

likelihood” that the prosecutor’s decision was motivated by an improper motive, see id.,

it was Mitchell’s responsibility to advance evidence suggesting an improper motive was

reasonably likely. He has failed to make that showing.

D.     Speedy Trial

       Finally, we reject Mitchell’s speedy trial argument. He complains that, because of

the prosecution’s charging delay, “he is now extremely prejudiced as he attempts to find

and talk to witnesses, who have died, disappeared, or whose memories have faded.”

(Appellant Br. 33.) He bases his argument on the Sixth Amendment right to a speedy

trial and faults the district court for failing to apply the balancing test the Supreme Court

applied in Barker v. Wingo, 407 U.S. 514, 530-33 (1972). Yet, just as the magistrate

explained, the Sixth Amendment right to a speedy trial attaches only once a person


       2
         The government also proffered evidence showing their investigation into the
burglary continued after Mitchell declined to talk with FBI agents. This would further
suggest the timing of the indictment was not a product of improper prosecutorial
vindictiveness, but, rather, of proper ongoing investigation. See, e.g., Lovasco, 431 U.S.
792-93 (noting the propriety of delay for continued investigation).


                                                -7-
becomes “accused.” Marion v. United States, 404 U.S. 307, 313 (1971). This does not

happen, the Court tells us, until an indictment issues or an arrest occurs. See Barker, 407

U.S. at 532 (discussing time between arrest and trial); Marion, 404 U.S. at 313

(discussing time between indictment and trial). The Sixth Amendment right to speedy

trial does not proscribe the delay Mitchell decries.

       AFFIRMED.

                                           Entered by the Court:

                                           Terrence L. O’Brien
                                           United States Circuit Judge




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