                                               [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                      ________________________                  FILED
                                                       U.S. COURT OF APPEALS
                             No. 08-13876                ELEVENTH CIRCUIT
                                                             MARCH 9, 2009
                         Non-Argument Calendar
                                                          THOMAS K. KAHN
                       ________________________
                                                               CLERK

                     D. C. Docket No. 07-00014-CR-5

UNITED STATES OF AMERICA,


                                                           Plaintiff-Appellee,

                                  versus

JOHNIE GRADY,

                                                        Defendant-Appellant.


                       ________________________

                Appeal from the United States District Court
                   for the Southern District of Georgia
                     _________________________

                             (March 9, 2009)

Before DUBINA, CARNES and WILSON, Circuit Judges.

PER CURIAM:
       Appellant Johnie Grady appeals his conviction for possession with intent to

distribute cocaine, in violation of 21 U.S.C. §§ 841(a)(1), 851. Under the Speedy

Trial Act, the district court dismissed his first indictment without prejudice

because it found that the delay in trying Grady was caused by personnel in the

court clerk’s office. Grady then was re-indicted, and a jury found him guilty of the

charged offense.

                                             I

       On appeal, Grady argues that, under the Speedy Trial Act, the district court

should have dismissed the original indictment with prejudice because, even though

his offense was serious, it is the responsibility of the executive branch of

government to ensure that trials are timely, and the government has not offered an

affirmative justification for why the dismissal should have been without prejudice.

This argument is raised for the first time on appeal.

       When an argument is raised for the first time on appeal, we review it for

plain error only. See United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir.

2005). “An appellate court may not correct an error the defendant failed to raise in

the district court unless there is: ‘(1) error, (2) that is plain, and (3) that affects

substantial rights.’ Id. (quoting United States v. Cotton, 535 U.S. 625, 631, 122 S.

Ct. 1781, 1785 (2002)). If these factors are met, the decision to correct the

                                             2
forfeited error is “within the sound discretion of the court of appeals,” and the

court may correct the error if it “seriously affect[s] the fairness, integrity or public

reputation of judicial proceedings.” United States v. Olano, 507 U.S. 725, 732,

113 S. Ct. 1770, 1776 (1993) (internal quotation marks omitted). Review for plain

error requires an error to be clear or obvious. United States v. Straub, 508 F.3d

1003, 1008 (11th Cir. 2007).

      When deciding whether to dismiss an indictment for a Speedy Trial Act

violation with or without prejudice, “there is no preference for one type of

dismissal over the other.” United States v. Brown, 183 F.3d 1306, 1310 (11th Cir.

1999). In determining whether to dismiss the case with or without prejudice, the

district court must consider each of the following factors: “the seriousness of the

offense; the facts and circumstances of the case which led to the dismissal; and the

impact of a reprosecution on the administration of this chapter and on the

administration of justice.” 18 U.S.C. § 3162(a)(1) (2006); see also Brown, 183

F.3d at 1310. Serious offenses favor dismissal without prejudice unless there has

been a correspondingly severe delay of “several months.” See United States v.

Russo, 741 F.2d 1264, 1267 (11th Cir. 1984). The second factor favors dismissal

without prejudice if the delay resulted from “negligence and oversight,” rather

than an “intentional delay.” United States v. Miranda, 835 F.2d 830, 834 (11th

                                           3
Cir. 1988). The interests of administration of justice and speedy prosecution tend

to cancel each other out. Russo, 741 F.2d at 1267.

      Because of the seriousness of Grady’s offense and the fact that the delay

was the fault of the district court clerk’s office and without any fault by the parties,

we conclude that the district court did not commit plain error by dismissing

without prejudice.

                                           II

      Grady also argues that his re-indictment and subsequent conviction violated

his Sixth Amendment right to a speedy trial because the re-indictment occurred

eight months after he was arrested, which constituted an undue delay.

      “Determination of whether a defendant’s constitutional right to a speedy

trial has been violated is a mixed question of law and fact. Questions of law are

reviewed de novo, and findings of fact are reviewed under the clearly erroneous

standard.” United States v. Clark, 83 F.3d 1350, 1352 (11th Cir. 1996) (citing

Yapp v. Reno, 26 F.3d 1562, 1565 (11th Cir. 1994)). However, as discussed

supra, when an issue is raised for the first time on appeal, it is reviewed for plain

error. See Rodriquez, 398 F.3d at 1298.

      The Sixth Amendment states that, “[i]n all criminal prosecutions, the

accused shall enjoy the right to a speedy and public trial.” U.S. Const. amend. VI.

                                           4
“In order to determine whether a defendant has been deprived of his right to a

speedy trial, this court must consider (1) whether the delay before trial was

uncommonly long; (2) whether the government or the defendant is more to blame

for that delay; (3) whether, in due course, the defendant asserted his right to a

speedy trial; and (4) whether the defendant suffered prejudice as a result of the

delay.” United States v. Harris, 376 F.3d 1282, 1290 (11th Cir. 2004). In Harris,

we found that the trial delay of over 18 months was uncommonly long. Id.

Nonetheless, because the delay was not the government’s fault, but rather the

result of a scheduling error committed by the district court, we found that the

second consideration favored the government, and, therefore, Harris had to show

that he actually was prejudiced by the delay. Id.

      Here, Grady could not show, and did not argue on appeal, that he was

prejudiced by the delay. Thus, the district court did not commit plain error when it

declined to dismiss the second indictment because the government did not cause

the delay in Grady’s proceedings, and Grady could not show that he was actually

prejudiced by the delay.

                                          III

      Lastly, Grady argues that the evidence was not sufficient to convict him

because: (1) there was no direct evidence that he possessed cocaine; and (2) the

                                          5
circumstantial evidence merely presented a suspicion that he possessed cocaine,

which did not amount to proof beyond a reasonable doubt.

      Grady did not move the district court for a judgment of acquittal at the close

of all the evidence, thus we will reverse his conviction only to prevent a manifest

miscarriage of justice. See United States v. Hamblin, 911 F.2d 551, 556–57 (11th

Cir. 1990). This standard requires “a finding that ‘the evidence on a key element

of the offense is so tenuous that a conviction would be shocking.’” United States

v. Tapia, 761 F.2d 1488, 1492 (11th Cir. 1985) (quoting United States v. Landers,

484 F.2d 93, 94 (5th Cir. 1973)). In making this determination, we must view the

evidence in the light most favorable to the government and accept all reasonable

inferences and credibility determinations that support the jury’s verdict. Hamblin,

911 F.2d at 557.

      Grady’s conviction is not a manifest miscarriage of justice because evidence

showed that he buried a bag of cocaine in the mud while he was fleeing the police.

For the above-stated reasons, we affirm Grady’s conviction.

      AFFIRMED.




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