                         NONPRECEDENTIAL DISPOSITION
                 To be cited only in accordance with Fed. R. App. P. 32.1



                United States Court of Appeals
                                 For the Seventh Circuit
                                 Chicago, Illinois 60604

                                Submitted October 5, 2016
                               Decided November 30, 2016

                                          Before

                          WILLIAM J. BAUER, Circuit Judge

                          JOEL M. FLAUM, Circuit Judge

                          MICHAEL S. KANNE, Circuit Judge


No. 16-1752

UNITED STATES OF AMERICA,                         Appeal from the United States
     Plaintiff-Appellee,                          District Court for the Southern District
                                                  of Indiana, New Albany Division.
       v.
                                                  No. 4:10-cr-00006-005
ANTOINE C. ALLEN,
    Defendant-Appellant.                          Tanya Walton Pratt,
                                                      Judge.


                                          ORDER

       Antoine Allen entered a conditional guilty plea to conspiring to distribute
cocaine, 21 U.S.C. §§ 846, 841(a)(1), preserving for this direct appeal his challenge to the
denial of a motion asserting that the 40-month delay between his indictment and initial
appearance violated his Sixth Amendment right to a speedy trial and thus the
indictment should be dismissed. But Allen sat on his hands instead of promptly
asserting his right to a speedy trial and suffered no obvious prejudice from the delay.
Thus, we affirm the district court’s ruling on the motion to dismiss.
No. 16-1752                                                                        Page 2

         From July 2008 until he was indicted in the Southern District of Indiana in
mid-September 2010, Allen was part of a conspiracy that distributed powder and crack
cocaine in southern Indiana and northern Kentucky. He was in a county jail in
Kentucky when the indictment was returned, and not until February 4, 2014, did he first
appear on the federal indictment in New Albany, Indiana. Allen had been sentenced to
work release on an Indiana conviction for robbery, but in early 2010 he absconded to
Kentucky. In Kentucky he robbed two victims and shot another with a stolen gun. He
was arrested in July or August 2010 and charged by Jefferson County authorities with,
first, robbery and, later, a number of other crimes including assault. Indiana authorities
also charged Allen with absconding from work release.

        Allen was detained in the Jefferson County jail in Kentucky until May 2012.
Federal authorities apparently did nothing to secure his presence in the Southern
District of Indiana until September 2011—a year after indictment. At that time,
according to what government counsel told the district court, the U.S. Marshals Service
lodged a “detainer” with jailers in Jefferson County by telephoning the jail and asking
to be notified after Allen was sentenced on the Kentucky charges. Allen was convicted
on all of the Kentucky charges by March 1, 2012, and sentenced to a total of 10 years’
imprisonment. He was paroled on February 1, 2016.

       Whether Jefferson County authorities notified the Marshals Service after Allen’s
sentencing is not disclosed in the record. What is clear, however, is that Kentucky
temporarily released Allen to the custody of Indiana from May 2012 until January 2014.
According to what government counsel told the district court, Allen had “filed an
interstate detainer to … be brought to Indiana to appear for the Clark County cases.”
Allen pleaded guilty and was sentenced to 18 months for failing to return to lawful
detention.

       Meanwhile, although the federal courthouse in New Albany is within 10 miles of
the county jails in both Jefferson County, Kentucky, and Clark County, Indiana, federal
prosecutors still did not take any further steps to secure Allen’s presence until
January 2013 when the government filed the first of three petitions for a writ of habeas
corpus ad prosequendum. A magistrate judge granted the first of those petitions on
January 24, 2013, and a writ was issued commanding the Marshals Service to bring
Allen to federal court from the jail in Clark County. But the Marshals Service did not
execute this writ because, according to government counsel, it was “trumped” by
Allen’s “interstate detainer from Kentucky to Clark County.” The government asked for
a second writ in October 2013 but listed the wrong jail on the paperwork, prompting the
No. 16-1752                                                                        Page 3

magistrate judge to deny the petition as “moot.” Then on January 29, 2014, the same
day that Allen was returned from Clark County, Indiana, to Kentucky authorities, the
government asked for a writ that directed the Marshals Service to pick up Allen in
Kentucky. This writ was executed, and Allen appeared before the district court and was
appointed counsel on February 4, 2014, more than 40 months after his indictment.

       Allen did not move to dismiss the indictment, however, until after obtaining five
continuances that prolonged the federal prosecution for another 17 months. In his
motion he contended that the 40-month stretch between his September 2010 indictment
and February 2014 initial appearance had violated his right to a speedy trial under the
Sixth Amendment. Allen detailed how the charges against his many coconspirators had
proceeded without him and how the government had delayed in procuring his
presence before the district court. Even after the government first had obtained a writ of
habeas corpus ad prosequendum, he recounted, it had taken more than a year to get
him to federal court in New Albany. As a result, Allen asserted, he had lost leverage in
plea negotiations (because he could not cooperate against his codefendants) and his
federal sentence could not run fully concurrent with his state sentences.

       In rejecting Allen’s constitutional claim, the district court acknowledged that the
length of the delay was enough to trigger analysis under the four-factor test of Barker v.
Wingo, 407 U.S. 514 (1972). But despite the length of the delay, the court reasoned, the
other three factors—the reasons for that delay, whether the defendant had asserted his
right to a speedy trial, and whether his defense was prejudiced because of the
delay—all weighed against Allen. Allen’s criminal conduct caused the delay, the court
reasoned, and the time required to resolve his state charges should not count against the
government. And, the court added, Allen had failed to assert his right to a speedy trial.
As to prejudice, the district court observed that Allen had been offered a lenient plea
agreement allowing him to benefit from cooperating.

      Allen subsequently accepted a plea agreement calling for a specific sentence of
120 months, see FED. R. CRIM. P. 11(c)(1)(C). A challenge to the denial of his motion to
dismiss is the only appellate claim not waived by Allen’s plea agreement. On appeal he
presses his Sixth Amendment claim and renews his contentions that the delay
prevented him from negotiating a favorable plea agreement and also thwarted his
opportunity to receive a federal sentence running fully concurrent with the state terms.

        Four factors govern the Sixth Amendment analysis: (1) the length of the delay,
(2) the reason for the delay, (3) whether the defendant asserted his right to a speedy
No. 16-1752                                                                           Page 4

trial, and (4) whether the defendant suffered prejudice to his defense. Barker, 407 U.S. at
530–32. Allen challenges the district court’s application of each factor.

       The first factor is a trigger; without a “presumptively prejudicial” delay, courts
will not inquire into the other Barker factors. Doggett v. United States, 505 U.S. 647, 651–
52 (1992). The parties agree that the length of delay was greater than one year, and thus
was presumptively prejudicial. See United States v. Loera, 565 F.3d 406, 412 (7th Cir.
2009).

        As to why there was delay, different reasons carry different weights. United
States v. Loud Hawk 474 U.S. 302, 315 (1986). An intentional attempt to impair the
defense weighs heavily against the government, but a more benign reason, such as
government negligence, weighs less heavily against the government. Doggett, 505 U.S.
at 656–57. Government negligence “compounds over time as the presumption of
evidentiary prejudice grows,” and thus “toleration of such negligence varies inversely
with its protractedness.” Id. at 657. At oral argument, however, Allen conceded that the
delay was attributable to him because he was facing criminal charges in Kentucky and
Indiana.

        The third factor—whether Allen demanded a speedy trial—weighs heavily
against him. “[J]ust as we give significant weight to the defendant’s assertion of the
right, a failure to assert it ‘will make it difficult for a defendant to prove that he was
denied a speedy trial.’” United States v. Oriedo, 498 F.3d 593, 597 (7th Cir. 2007) (quoting
Barker, 407 U.S. at 532). Allen concedes that early on he knew about the federal
indictment but did not assert his right to a speedy trial before moving for dismissal.
And that motion to dismiss did not come until 17 months after his initial appearance.

        Allen’s appellate counsel argues that the defendant’s silence should not be
counted against him because he was unaware that the case against his codefendants
was moving forward and might not have felt compelled to assert his right to a speedy
trial. The prospect that Allen was aware of the federal indictment but wholly oblivious
to the proceedings against his codefendants is, at the very least, improbable. And as the
government contends, this factor still weighs against Allen because he failed to assert
his right to a speedy trial even after appearing in the district court.

      The final factor is whether Allen suffered prejudice because of the delay. Courts
examine three kinds of prejudice: (1) “’oppressive pretrial incarceration,’” (2) “’anxiety
and concern of the accused,’” and (3) the prospect that the accused’s “’defense will be
No. 16-1752                                                                            Page 5

impaired’ by diming memories and loss of exculpatory evidence.” Doggett, 505 U.S. at
654 (quoting Barker, 407 U.S. at 532). The last of these is the most significant, id., while
the possibility that a defendant might receive a sentence at least partially concurrent
with another sentence is a form of prejudice to consider under the first prong of
potential prejudice, Smith v. Hooey, 393 U.S. 374, 378 (1969).

        Allen argues that his defense was impaired because he lost leverage in
negotiating his plea agreement. He also contends that losing the ability to serve
partially concurrent sentences constitutes substantial prejudice. But there is no right to
negotiate a plea deal. Missouri v. Frye, 132 S. Ct. 1399, 1410 (2012). And at any rate, even
though the cases against his many other codefendants already had been resolved, the
government still entered into a cooperation agreement with Allen. Moreover, although
it is possible that Kentucky or Indiana might have run their sentences concurrently with
Allen’s federal sentence if the federal case had proceeded to judgment first, that
possibility is speculative. And while Allen complains that his federal sentence could not
run concurrently with his completed state sentences, he fails to mention that the
government agreed to, and the district court approved, a specific sentence of 10 years’
imprisonment, nearly 6 years below the low end of the guidelines range of 188 to 235
months. Allen apparently assumes that, if he had been brought to federal court sooner,
he would have received this same favorable deal plus a concurrent sentence, but he has
not shown that assumption to be anything more than wishful thinking.

      On balance, the Barker factors do not weigh sufficiently in Allen’s favor because
he conceded that the delay was attributable to him, he did not assert his right to a
speedy trial, and he has not persuasively argued that he was prejudiced by the delay.
                                                                              AFFIRMED.
