                                                                          FILED
                              NOT FOR PUBLICATION                           JUL 25 2014

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                              FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,               )     No. 12-10551
                                        )
      Plaintiff - Appellee,             )     D.C. No. 2:11-cr-00110-RLH-VCF-1
                                        )
      v.                                )     MEMORANDUM*
                                        )
DE RONG SHANG,                          )
                                        )
      Defendant - Appellant.            )
                                        )

                   Appeal from the United States District Court
                            for the District of Nevada
                  Roger L. Hunt, Senior District Judge, Presiding

                               Submitted July 8, 2014**
                               San Francisco, California

Before: FERNANDEZ, N.R. SMITH, and CHRISTEN, Circuit Judges.

      De Rong Shang appeals his convictions and sentence for conspiracy to




      *
       This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      **
      The panel unanimously finds this case suitable for decision without oral
argument. Fed. R. App. P. 34(a)(2).
commit wire fraud,1 wire fraud2 and aiding and abetting.3 We affirm.

      (1)      Shang first argues that the district court erred when it denied his

motion to dismiss the indictment because of preindictment delay in violation of the

Fifth Amendment. See U.S. Const. amend. V; United States v. Valentine, 783 F.2d

1413, 1416 (9th Cir. 1986). We do not agree. In order to sustain this claim, Shang

first had to prove “actual, non-speculative prejudice from the delay.” United States

v. Huntley, 976 F.2d 1287, 1290 (9th Cir. 1992); see also United States v. Wallace,

848 F.2d 1464, 1469–70 (9th Cir. 1988). That is a heavy burden,4 and Shang did

not meet it. The indictment was filed within the statute of limitations period,5 and

Shang has not made any non-speculative showing that his defense was “actually

impaired meaningfully”6 by the loss of a witness,7 or the supposed dimming of



      1
          18 U.S.C. § 1349.
      2
          18 U.S.C. § 1343.
      3
          18 U.S.C. § 2.
      4
          See United States v. Moran, 759 F.2d 777, 782 (9th Cir. 1985).
      5
       See United States v. Lovasco, 431 U.S. 783, 789, 97 S. Ct. 2044, 2048, 52
L. Ed. 2d 752 (1977); United States v. Doe, 149 F.3d 945, 948 (9th Cir. 1998).
      6
          Moran, 759 F.2d at 782; see also Doe, 149 F.3d at 948.
      7
          See United States v. Corona-Verbera, 509 F.3d 1105, 1112–13 (9th Cir.
2007).

                                            2
witnesses’ memories.8 Because he did not meet his burden of showing actual

prejudice, we need not, and do not, consider the reasons for the delay. See United

States v. Martinez, 77 F.3d 332, 335 (9th Cir. 1996); see also Corona-Verbera, 509

F.3d at 1113 n.2.

      (2)      Shang then asserts that the district court erred when it denied his

motion to dismiss the indictment because of a denial of his right to a speedy trial in

violation of the Sixth Amendment. See U.S. Const. amend. VI; United States v.

Gregory, 322 F.3d 1157, 1160–61 (9th Cir. 2003). We disagree. Because almost

one year expired between the date of his indictment and the commencement of his

trial, we apply a four-factor balancing test to his claim. See Doggett v. United

States, 505 U.S. 647, 651–52, 112 S. Ct. 2686, 2690–91, 120 L. Ed. 2d 520 (1992);

Barker v. Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182, 2192, 33 L. Ed. 2d 101

(1972). Particularly in a case of this complexity,9 we cannot say that the delay was

excessively long,10 and while he did ultimately assert his speedy trial right, that

was after he had stipulated to continuances.11 Moreover, much of the delay

      8
          See id.
      9
          See Barker, 407 U.S. at 531, 92 S. Ct. at 2192.
      10
           See Gregory, 322 F.3d at 1162–63.
      11
           See United States v. King, 483 F.3d 969, 976–77 (9th Cir. 2007); see also
                                                                        (continued...)

                                            3
occurred because the government had to file a superseding indictment after Shang

successfully challenged the original indictment. Finally, Shang has not

demonstrated any prejudice arising out of the delay — he was not in custody, he

has not submitted evidence of any particular anxiety or concern, and he has failed

to show impairment of his defense. See Barker, 407 U.S. at 532, 92 S. Ct. at 2193;

Gregory, 322 F.3d at 1163–64. On balance, Shang’s Sixth Amendment rights were

not violated.

      (3)       Lastly, Shang asserts that the district court procedurally erred when it

sentenced him. See Gall v. United States, 552 U.S. 38, 51, 128 S. Ct. 586, 597,

169 L. Ed. 2d 445 (2007); United States v. Carty, 520 F.3d 984, 993 (9th Cir.

2008) (en banc). It did not. He argues that the district court did not think that it

could consider Shang’s probable removal from this country or the effect of his

family ties or responsibilities. However, the record does not show that the district

court thought any such thing. Along with the other information before it, the

district court carefully listened to and considered Shang’s arguments, and then

responded to them. United States v. Fasthorse, 639 F.3d 1182, 1185 (9th Cir.

2011); Carty, 520 F.3d at 991–93. It simply was not impressed with some of those

arguments. In fact, the district court granted a substantial downward variance from

      11
       (...continued)
Corona-Verbera, 509 F.3d at 1116.

                                             4
the calculated guideline range in sentencing Shang. Cf. Carty, 520 F.3d at 994.

The district court did not abuse its discretion; the sentence was reasonable. See

Gall, 552 U.S. at 46, 128 S. Ct. at 594.

      AFFIRMED.




                                           5
