               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 15a0216n.06

                                       Case No. 13-5982

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT
                                                                              FILED
                                                                         Mar 18, 2015
UNITED STATES OF AMERICA,                          )                 DEBORAH S. HUNT, Clerk
                                                   )
       Plaintiff-Appellee,                         )
                                                   )      ON APPEAL FROM THE UNITED
v.                                                 )      STATES DISTRICT COURT FOR
                                                   )      THE MIDDLE DISTRICT OF
LEONARD BAUGH,                                     )      TENNESSEE
                                                   )
       Defendant-Appellant.                        )
                                                   )
                                                   )


       BEFORE: GIBBONS, SUTTON, and McKEAGUE, Circuit Judges.


       SUTTON, Circuit Judge. A jury found Leonard Baugh guilty of conspiring to commit

robbery in violation of the Hobbs Act, among other laws. Baugh challenges his Hobbs Act

conviction on the ground that the government presented insufficient evidence to support the

charge, and all of his convictions on the ground that the delay between his indictment and trial

violated the Speedy Trial Act and the Sixth Amendment. Baugh also maintains that his sentence

is procedurally and substantively unreasonable. We affirm.


                                              I.

       In May 2010, after the grand jury’s sixth indictment, Leonard Baugh joined a growing

cadre of codefendants in this large case. Two years and four more indictments later, the case
Case No. 13-5982
United States v. Baugh
swelled to twenty-eight defendants covering forty-three counts, fourteen of which implicated

Baugh. After a trial in January 2013, a jury found Baugh guilty of conspiring to violate the

Hobbs Act, conspiring to distribute drugs, and committing related firearm offenses.          See

18 U.S.C. § 924(c), 1951(a); 21 U.S.C. § 846. The district court imposed a within-Guidelines

sentence of 570 months, to be served consecutively with an extant state sentence.


                                              II.

       Baugh attacks his convictions on two fronts. Neither one gains ground.

       Sufficiency of the Evidence. Baugh argues that a reasonable jury could not find that his

plot to rob Cedric Woods—a drug dealer known as Lil Ced—affected interstate commerce, as

required under the Hobbs Act. The Hobbs Act criminalizes any robbery that “obstructs, delays,

or affects commerce,” which includes all commerce “over which the United States has

jurisdiction.” 18 U.S.C § 1951(a), (b)(3). In the context of conspiracies that target a business,

the government must establish a “realistic probability” of an effect on interstate commerce to

meet the requirement. United States v. Watkins, 509 F.3d 277, 281 (6th Cir. 2007) (internal

quotation marks omitted). Proof that the victim sold drugs originating out-of-state clears this

low hurdle. See United States v. Cecil, 615 F.3d 678, 691–92 (6th Cir. 2010).

       A reasonable jury could find the relevant connection to interstate commerce on this

record. Baugh’s brother and codefendant Adam Battle testified that the conspirators targeted

Woods because they expected to find “bricks” of drugs at his house. R. 2031 at 43, 64. A

jailhouse letter from Jamal Shakir, who came up with the plan, confirms that Shakir chose

Woods because he “work[ed]” out of his house selling “dope” and kept “decent change” (money)

there. R. 1966 at 34. Prison calls played for the jury capture Baugh discussing the “bricks” he

planned to steal from Woods. See R. 1981 at 14. Battle testified that “bricks” referred to


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United States v. Baugh
cocaine. R. 2031 at 64. Other witnesses testified that cocaine originates from out of Tennessee.

Kenneth Holden (otherwise known as Lil Wee Wee) testified that cocaine “ain’t grown in

Tennessee.” R. 2011 at 51. And Christopher Leggs (otherwise known as Fat Chris) agreed. See

R. 2054 at 44. The interstate movement of cocaine was supported by considerable evidence and

not challenged, and no rational jury could have found to the contrary on this record. Cf. Neder v.

United States, 527 U.S. 1, 17 (1999).

       Baugh objects that, in the absence of testimony from Woods (who refused to take the

stand), the government had no evidence that Woods actually dealt drugs. But that makes no

difference in the context of a conspiracy because it requires proof only that the scheme would

have affected commerce had it succeeded. See United States v. DiCarlantonio, 870 F.2d 1058,

1061 (6th Cir. 1989). Factual impossibility is immaterial.

       Speedy Trial Claims. Baugh urges us to overturn his conviction on the ground that the

thirty-two month delay between indictment and trial violates the Speedy Trial Act and the Sixth

Amendment.

       To establish a violation of the Speedy Trial Act, Baugh must show that his trial

commenced more than 70 days after his indictment or initial appearance, whichever is later, not

counting excludable time. See 18 U.S.C. § 3162(a)(2). The district court found the pretrial delay

excludable. Because Baugh fails to explain why any particular period of delay is not excludable

under the Act, he has forfeited any contrary argument. See United States v. Phinazee, 515 F.3d

511, 520 (6th Cir. 2008).

       His Sixth Amendment argument requires more attention but in the end fares no better.

To assess whether the delay violates the Constitution, we balance four factors: (1) the “[l]ength

of the delay”; (2) “the reason for the delay”; (3) “the defendant’s assertion of his right”; and



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United States v. Baugh
(4) “prejudice to the defendant.” Barker v. Wingo, 407 U.S. 514, 530 (1972). Factor one favors

Baugh because delays over one year are “uncommonly long.” See United States v. Bass, 460

F.3d 830, 836 (6th Cir. 2006).

       The three remaining factors favor the government. As to the second factor, we cannot

say that the government is “more to blame” for the delay. United States v. Schreane, 331 F.3d

548, 554 (6th Cir. 2003) (quoting Doggett v. United States, 505 U.S. 647, 655 (1992)). The

sheer size and complexity of this sprawling gang case—featuring ten indictments, numerous

defendants, voluminous discovery, over 1,800 pretrial docket entries—accounts for most of its

length, which “favors a finding of no constitutional violation.” Bass, 460 F.3d at 837. The

defendants also share much of the blame for the delay because they filed hundreds of motions

and obtained several continuances. See United States v. Young, 657 F.3d 408, 415 (6th Cir.

2011). Baugh twice filed dispositive motions on the eve of trial, for example, and twice sought

new counsel (once successfully) because he and his attorney could not work together. See

United States v. Williams, 753 F.3d 626, 633 (6th Cir. 2014). Some of the delay, to be sure, may

stem from the government’s perhaps inefficient decisions to seek new indictments. But at worst

that means the government and the defendants in this case share responsibility for the delay, a

reality that does not advance defendant’s case given that the district court fairly found that the

government prosecuted this case in good faith and with reasonable diligence. See Doggett,

505 U.S. at 652. This factor favors the government.

       As to the third factor, Baugh’s efforts to vindicate his speedy trial rights were mixed. On

the one hand, he moved to sever his case, joined his codefendants’ efforts to dismiss the

indictment on speedy-trial grounds, and never joined any continuance motion of his

codefendants. On the other hand, Baugh never objected (with one exception) to the continuance



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United States v. Baugh
requests, and he joined a proposed order that would have delayed the trial eight months. Viewed

as a whole, this track record does not evince a strong or consistent concern with his Sixth

Amendment rights. See United States v. Loud Hawk, 474 U.S. 302, 314 (1986); Young, 657 F.3d

at 412.

          As to the fourth factor, Baugh has not established prejudice from the delay. Delays over

one year, it is true, pose a sufficient risk of prejudice to establish a prima facie denial of a speedy

trial. See Bass, 460 F.3d at 836. But to prevail, Baugh needs more. Because the district court

found that the government pursued the litigation with reasonable diligence, this delay does not

carry any presumptive prejudice. See United States v. Howard, 218 F.3d 556, 564 (6th Cir.

2000). Baugh therefore must show how the delay prejudiced his defense. Id. And he has made

no attempt to do so. Nor does Redd v. Sowders, 809 F.2d 1266, 1270 (6th Cir. 1987), excuse this

failure. That delay by contrast was wrongful, triggering the presumption of prejudice.

          Baugh sees all of this differently. He maintains that the government all along had the

requisite evidence supporting the charges against him and that the nine superseding indictments

were a deliberate delay tactic. But he offers nothing to back up this theory. Evidence, not

speculation, is required, particularly in the face of a contrary district court finding about the

government’s conduct. Baugh also argues that much of the delay arose from mismanagement

and inattention by the district court. See United States v. Graham, 128 F.3d 372, 374–75 (6th

Cir. 1997). Some motions indeed went unaddressed for months. Even so, the court held nearly

fifty hearings, at least fifteen of which concerned motions. In light of the exceptional nature of

this case and the court’s duty to maintain the rest of its docket, we cannot say that the district

court negligently shepherded the litigation to trial. The court did its part to vindicate Baugh’s

Sixth Amendment rights.



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                                                    III.

       Baugh also attacks on his sentence on two grounds. Both are unavailing.

       Procedural Reasonableness. The district court’s sentence is procedurally unreasonable,

Baugh says, because the court failed to:        (1) calculate the applicable Guidelines range;

(2) consider the sentencing factors and his related arguments for a below-Guidelines sentence,

see 18 U.S.C. § 3553(a); and (3) explain the chosen sentence, including why it ran consecutively

to his state prison term. While the transcript may not be a model of ideal sentencing practices, it

suffices to permit “meaningful appellate review” and to confirm the court did its job. See United

States v. Grossman, 513 F.3d 592, 595 (6th Cir. 2008). When it came to the Guidelines

calculation, the court asked defense counsel to confirm that the range was 570 to 622 months,

which he did. This exchange demonstrates that the court “acknowledge[d] during the hearing

what it considered to be the applicable Guidelines range.” United States v. Grams, 566 F.3d 683,

685 (6th Cir. 2009). Because Baugh’s 570-month sentence falls at the very bottom of that

undisputed range, the court was free to offer a relatively brief explanation. See United States v.

Vonner, 516 F.3d 382, 387 (6th Cir. 2008) (en banc).

       The court’s explanation reveals that it took into account the sentencing factors and

considered Baugh’s arguments for leniency, including his request for a concurrent sentence.

Consideration of counterarguments need not invariably be explicit, especially for a within-

Guidelines sentence. Id.; United States v. Williams, 436 F.3d 706, 708 (6th Cir. 2006). After

hearing argument and imposing its sentence, the district court grounded its judgment in the need

for “specific deterrence and general deterrence” along with the “seriousness of the offense.”

R. 2439 at 22. The court declined to impose a fine, however, “considering [Baugh’s] financial

circumstances.” Id. at 21. This discussion shows that the court considered the relevant factors,



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including the “history and characteristics of the defendant,” plus the need to address “the

seriousness of the offense,” “afford adequate deterrence,” and “protect the public from further

crimes of the defendant.” See 18 U.S.C. § 3553(a)(1), (2). Having explained its choice of

sentence, the court had no duty to explain why it chose not to impose an alternative one. See

United States v. Gale, 468 F.3d 928, 940 (6th Cir. 2006). The same goes for the court’s decision

to impose the sentence consecutively to Baugh’s outstanding state prison term. Right after

announcing the length of the sentence, the court decided that Baugh must serve it consecutively

with the state sentence, “intertwin[ing]” the rationales for both decisions and making additional

explanation unnecessary. See United States v. Johnson, 640 F.3d 195, 208–09 (6th Cir. 2011).

       As for Baugh’s plea for a below-Guidelines sentence, the record confirms that the court

considered that too. When the government’s attorney invited the court to elaborate on its reasons

for rejecting that plea, the court declined, reemphasizing that its sentence was based on “general

deterrence.” R. 2439 at 30. That answer demonstrates that the court considered Baugh’s

arguments but found the need for deterrence more compelling. The court’s sentence contains no

reversible flaw.

       Substantive Reasonableness. Baugh contends that his sentence is unreasonably long for

three reasons: (1) because his conspiracies never materialized, (2) because he had a tough

upbringing, and (3) because he would be so old after serving the mandatory minimum that no

additional deterrence or protection is necessary. On appeal, we presume a within-Guidelines

sentence is reasonable. See Vonner, 516 F.3d at 389. Baugh has not rebutted that presumption.

As a violent career offender and as a leader of multiple conspiracies, Baugh received a tough but

just sentence.

       For these reasons, we affirm.



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