712 F.Supp. 1159 (1989)
Anne F. ABBISS and Robert L. Swift, Plaintiffs,
v.
DELAWARE DEPARTMENT OF TRANSPORTATION and Kermit H. Justice, Secretary of the Delaware Department of Transportation, Kermit H. Justice, Rodney S. Hill, Jr., and W. Robert Marker, Individually, Defendants.
Civ. A. No. 88-280 JRR.
United States District Court, D. Delaware.
May 26, 1989.
*1160 Donald W. Booker, Wilmington, Del., for plaintiffs.
David S. Lank, of Theisen, Lank, Mulford & Goldberg, P.A., Wilmington, Del., for defendants.

OPINION
ROTH, District Judge.
This action concerns property located at 322 Red Mill Road in New Castle County, Delaware (the "Property"). The plaintiffs bring this action under federal law seeking damages for an alleged taking of the Property, for an alleged restraint on alienation of the Property, and for alleged violations of their civil rights stemming from the individual defendants' actions concerning the Property. Presently before the Court is the defendants' Motion for Summary *1161 Judgment. We will, however, sua sponte dismiss this action without prejudice for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(h)(3).

I. FACTS
Plaintiff Abbiss owns the property in controversy. From 1977 through January 30, 1988, plaintiff Swift was a commercial month-to-month tenant who leased the premises and ran the Seafood Barn store in the building located on the Property. The Property is the second property north of the present intersection of Routes 273 and 4 and Red Mill Road in the Ogletown area of Delaware (the "Intersection").
The action that the plaintiffs contest is the decision by the Delaware Department of Transportation ("Del DOT") to alter the Intersection so that Red Mill Road will terminate in a cul-de-sac and will no longer intersect with Routes 273 and 4. Construction of the cul-de-sac will result in no direct access from Red Mill Road to either Route 273 or Route 4.
Despite the fact that the final design did not require acquisition of the Property, Del DOT nevertheless entered into negotiations with the plaintiffs' attorney for its advance acquisition. In connection with this procedure, two appraisals of the Property and one of the machinery and equipment on the premises were made. Offers to purchase the Property, the machinery, and the equipment were made by Del DOT; each was refused by the plaintiffs' attorney on behalf of his clients. These offers have since been withdrawn and Del DOT's current position is that acquisition of the Property is not necessary for the project.
The plaintiffs filed this action on May 24, 1988, raising three counts. In Count I, the plaintiffs assert that Del DOT has, in effect, by implementing its plan to transform Red Mill Road into a cul-de-sac, taken the Property in controversy without just compensation in violation of the fifth and fourteenth amendments to the United States Constitution. In Count II, the plaintiffs assert a right based on federal law to recover damages for an alleged restraint on the right of alienation of the Property for a seventeen year period commencing with the first announcement of Del DOT's plan to alter the Ogletown Intersection in 1968 and terminating with the adoption of the final plan. In Count III, the plaintiffs charge under 42 U.S.C. section 1983 that the defendants Kermit H. Justice, Rod S. Hill, and Frank [sic] Marker violated the plaintiffs' civil rights by refusing to institute condemnation proceedings against the Property.
Significantly, there is no indication in the complaint or in any of the other papers docketed in this action that the plaintiffs have sought compensation for the alleged taking or for the acts relating to the alleged taking, through procedures established by the state of Delaware.

II. ANALYSIS
The defendants have raised three arguments to support their Motion for Summary Judgment. We need not address any of these arguments, however, because we conclude that pursuant to the Supreme Court's decision in Williamson County Regional Planning Commission v. Hamilton Bank, 473 U.S. 172, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985), we do not have subject matter jurisdiction. Williamson requires that, before the plaintiffs can bring this action in federal district court, they must first seek compensation for the alleged taking by pursuing Delaware state law remedies. Id. at 194-96, 105 S.Ct. at 3120-22. Until they do so, we do not have subject matter jurisdiction. Therefore, this action will be dismissed without prejudice.

A. The Takings Claims.

We first address the plaintiffs' claims that there has been a taking of the Property or a taking of an interest in the Property because of the alleged restraint on alienation. In relevant part, the fifth amendment provides that "private property [shall not] be taken for public use, without just compensation." U.S. Const. amend V. This provision does not prohibit governments from taking private property, but merely requires compensation if property is taken. E.g., First English Evangelical *1162 Lutheran Church v. County of Los Angeles, 482 U.S. 304, 314-16, 107 S.Ct. 2378, 2385-86, 96 L.Ed.2d 250 (1987); Williamson, 473 U.S. at 194, 105 S.Ct. at 3120; Sinaloa Lake Owners Association v. City of Simi Valley, 864 F.2d 1475, 1478-79 (9th Cir.1989); Cassettari v. Nevada County, 824 F.2d 735, 737 (9th Cir.1987); Peduto v. City of North Wildwood, 696 F.Supp. 1004, 1009 (D.N.J.1988); Mitchell v. Mills County, Iowa, 673 F.Supp. 332, 335 (S.D.Iowa 1987), aff'd, 847 F.2d 486 (8th Cir.1988). Only when government refuses to pay just compensation after a taking has occurred, can there be a constitutional violation under the fifth amendment, Lutheran Church, 482 U.S. at 312 n. 6, 107 S.Ct. at 2384 n. 6; Williamson, 473 U.S. at 194, 105 S.Ct. at 3120; Coniston Corp. v. Village of Hoffman Estates, 844 F.2d 461, 463 (7th Cir.1988); Austin v. City and County of Honolulu, 840 F.2d 678, 681 (9th Cir.1988); Ochoa Realty Corp. v. Faria, 815 F.2d 812, 817 (1st Cir.1987); Culebras Enterprises Corp. v. Rivera Rios, 813 F.2d 506, 512-16 (1st Cir.1987); Littlefield v. City of Afton, 785 F.2d 596, 609 (8th Cir.1986); Mitchell, 673 F.Supp. at 335; Lerman v. City of Portland, 675 F.Supp. 11, 15-16 (D.Me.1987), because there is no right that "just compensation be paid in advance of, or contemporaneously with," a taking. Williamson, 473 U.S. at 194, 105 S.Ct. at 3120. See also id. at 195 n. 14, 105 S.Ct. at 3121 n. 14 ("Nor has the Court ever recognized [under the just compensation clause] any interest served by pretaking compensation that could not be equally well served by post-taking compensation"); Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1016, 104 S.Ct. 2862, 2879, 81 L.Ed.2d 815 (1984) (just compensation clause does not require pretaking compensation); Cherokee Nation v. Southern Kansas Ry., 135 U.S. 641, 10 S.Ct. 965, 34 L.Ed. 295 (1890) (constitution does not require payment in advance of taking).
In the instant case, the plaintiffs' claims are premature because they have not attempted to pursue Delaware state law remedies for the alleged taking, Lutheran Church, 482 U.S. at 312 n. 6, 107 S.Ct. at 2384 n. 6; Williamson, 473 U.S. at 194, 105 S.Ct. at 3120; Austin, 840 F.2d at 681; Ochoa Realty, 815 F.2d at 817; Culebras, 813 F.2d at 512-16; Littlefield, 785 F.2d at 609; Q.C. Construction Co. v. Verrengia, 700 F.Supp. 86, 87 (D.R.I.1988); Mitchell, 673 F.Supp. at 335; Lerman, 675 F.Supp. at 15-16, and therefore cannot demonstrate that the state's available post deprivation remedies are inadequate.[1]See, e.g., Williamson, 473 U.S. at 194-95, 105 S.Ct. at 3120-21. Until the state fails to provide adequate compensation for the alleged taking, the state's action is not complete, id. at 195, 105 S.Ct. at 3121; there can be no taking; and there is no federal cause of action.
Even if Delaware law did not provide specifically for inverse condemnation actions[2] or even if every decision from the Delaware courts to have considered the issue of inverse condemnation had denied recovery to the plaintiff, that would not be enough to waive the requirement for the plaintiffs to pursue their state law remedies first. See, e.g., Austin, 840 F.2d at 681-82 ("despite the uncertainty of state law, even when state courts have expressed unwillingness to award damages in inverse condemnation actions," plaintiffs *1163 must first bring their claims in state court); Culebras, 813 F.2d at 512-16 (same); Littlefield, 785 F.2d 609 (same); Lerman, 675 F.Supp. at 16 (same). The plaintiffs in this case do not face such an obstacle, however. The Delaware Constitution requires that compensation be paid when "any man's property be taken or applied to public use...." Del. Const. art. I, § 8, cl. 3. In addition, Delaware law specifically provides for actions in inverse condemnation. Del. Code Ann. tit 29, § 9504. Finally, a brief research of Delaware law indicates that inverse condemnation actions will be entertained by the Delaware courts. See, e.g., Goldberg v. City of Rehoboth Beach, slip op. (Del.Super.Ct. Feb. 8, 1989) (denying plaintiff's inverse condemnation claim because no showing that there had been a taking) [1989 WL 12236]; Delmarva Power & Light Co. v. City of Seaford, 523 A.2d 973 (Del.Super.Ct.1987) (holding that plaintiff brought inverse condemnation action in the proper county); Scott v. City of Harrington, slip op. (Del.Super.Ct. May 15, 1987) (denying defendant's motion to dismiss plaintiff's inverse condemnation suit seeking just compensation) [1987 WL 11461]. Thus, it is clear that Delaware law provides remedies for takings of property by government.
The plaintiffs in this case must therefore pursue their claims in state court and be denied relief[3] before they can bring their claims in federal court. See, e.g., Williamson, 473 U.S. at 194-200, 105 S.Ct. at 3120-24. This precondition of bringing suit in state court before suit may be brought in federal court serves well both the notions of comity between the state and federal courts and the notion of "Our Federalism." Younger v. Harris, 401 U.S. 37, 44-45, 91 S.Ct. 746, 751, 27 L.Ed.2d 669 (1971). As the court in Mitchell stated, "[U]ntil a plaintiff pursues state law remedies, federal courts must assume that state courts will interpret state law in line with the Supreme Court's `fundamental constitutional commands' concerning just compensation." 673 F.Supp. at 335 (quoting Jacobs v. City of Minneapolis, No. 4-87-397, slip op. at 16 (D.Minn. Aug. 4, 1987) [1987 WL 14716]).
Because the plaintiffs have not pursued the available state law remedies with respect to their takings claims, these claims are not ripe, and we do not have jurisdiction over them. These claims will therefore be dismissed.

B. The Civil Rights Claims.

We now turn to the plaintiffs' civil rights claim against the defendants. The Complaint charges the individual defendants with violating the plaintiffs' civil rights by failing to institute condemnation proceedings against the Property and by "knowingly, wantonly and willfully depriv[ing] the owner of just compensation under the constitutional provisions of the United States Constitution" for the alleged taking of the Property. Complaint ¶ 10 (D.I. 1). We view these vaguely-worded allegations as being brought under section 1983 for alleged violations of rights protected by the fifth and fourteenth amendments to the United States Constitution.
Our analysis of the civil rights claims must begin with the statute itself. Section 1983 of title 42 of the United States Code provides:
Every person who, under color of [state law] ... subjects, or causes to be subjected, any citizen of the United States ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.
42 U.S.C. § 1983.
Thus, to succeed on a claim based on section 1983, the plaintiffs must demonstrate *1164 two elements. First they must show that they have been deprived of a right secured by the constitution or laws of the United States. Second, they must show that the person depriving them of this right acted under color of state law. E.g., Lugar v. Edmondson Oil Co., 457 U.S. 922, 930-32, 102 S.Ct. 2744, 2750-51, 73 L.Ed.2d 482 (1982). At this juncture in this case, it is impossible to demonstrate that the plaintiffs have been deprived of anything. There has been no finding in this case that there has been a taking of the Property or of any interest in the Property in violation of the fifth and fourteenth amendments. As a result, we find that it would be premature to rule on these civil rights claims until the state courts have resolved whether or not there has been a taking and, if so, what remedy is available to the plaintiffs. E.g., Cassettari, 824 F.2d at 739.
Based on our holding with respect to the takings issue, we conclude that the plaintiffs' civil rights claims cannot at this time be based on the fifth amendment because the plaintiffs have not yet been denied just compensation for the alleged taking of the Property. Thus, the plaintiffs have not been deprived of a right conferred by the fifth amendment. Williamson, 473 U.S. at 194-97 & n. 13, 105 S.Ct. at 3120-22 & n. 13.
Nor can we treat the plaintiffs' claim that their civil rights have been violated as one which is based on violations of the fourteenth amendment's requirement of substantive due process. It is well-settled law in this circuit that a "plaintiff making a substantive due process claim in federal court has the burden of showing that the regulation is arbitrary or irrational." Pace Resources, Inc. v. Shrewsbury Township, 808 F.2d 1023, 1035-37 (3d Cir. 1987) (citing Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 15, 96 S.Ct. 2882, 2892, 49 L.Ed.2d 752 (1976)); see also Sinaloa, 864 F.2d at 1484; Coniston, 844 F.2d at 467. The plaintiffs in this case have made no showing that Del DOT's decision to alter the Intersection was arbitrary or irrational. Further, the only allegation that could arguably support a claim of violations of substantive due process, that Del DOT's decision not to purchase the Property was arbitrary or irrational, is unsupported by anything other than bare-faced assertions in the complaint.[4] This is insufficient to support a claim of violation of substantive due process. Pace Resources, 808 F.2d at 1035 (citing Rotolo v. Borough of Charleroi, 532 F.2d 920 (3d Cir.1976); Boykins v. Ambridge Area School District, 621 F.2d 75 (3d Cir.1980)).
Because the plaintiffs' section 1983 claim cannot be predicated either on the fifth amendment's just compensation clause or on the fourteenth amendment's requirement of substantive due process, the only other basis for the plaintiffs' claim would be a violation of procedural due process. Even, however, if we view the facts most favorably to the plaintiffs with respect to this claim, that there has indeed been a taking of the Property or of an interest in the Property without just compensation, such a conclusion does not enable the plaintiffs to sustain this cause of action. Mere exercise of eminent domain power does not offend due process. Chicago, Burlington & Quincy Railroad Co. v. City of Chicago, 166 U.S. 226, 17 S.Ct. 581, 41 L.Ed. 979 (1897); Elterich v. City of Sea Isle City, 477 F.2d 289, 290 (3d Cir.1973); *1165 Collier v. City of Springdale, 733 F.2d 1311, 1314 (8th Cir.), cert. denied, 469 U.S. 857, 105 S.Ct. 186, 83 L.Ed.2d 120 (1984). The plaintiffs have no right to "prior notice, hearing or compensation so long as there exists an adequate mechanism for obtaining compensation." Collier, 733 F.2d at 1314 (citing Yearsley v. Ross, 309 U.S. 18, 22, 60 S.Ct. 413, 415, 84 L.Ed. 554 (1940); Hurley v. Kincaid, 285 U.S. 95, 104, 52 S.Ct. 267, 269, 76 L.Ed. 637 (1932); Fountain v. Metropolitan Atlanta Rapid Transit Authority, 678 F.2d 1038, 1045 n. 13 (11th Cir.1982); Stringer v. United States, 471 F.2d 381, 383 (5th Cir.), cert. denied, 412 U.S. 943, 93 S.Ct. 2775, 37 L.Ed.2d 404 (1973); Light v. Blackwell, 472 F.Supp. 333, 338 (E.D.Ark.1979), aff'd mem., 620 F.2d 307 (8th Cir.1980); Kao v. Red Lion Municipal Authority, 381 F.Supp. 1163, 1166 (M.D.Pa.1974)); see also Cassettari, 824 F.2d at 738; Mitchell v. Mills County, Iowa, 847 F.2d at 488 n. 2; Harris v. Missouri Conservation Commission, 790 F.2d 678, 680 (8th Cir.1986); Elterich, 477 F.2d at 291;[5]but see Sinaloa, 864 F.2d at 1480-83 (a physical invasion case, where all of plaintiff's property was flooded as a result of breaching a dam, holding that only the just compensation clause does not require prior notice and implying that the due process clause would require prior notice). The constitution requires only that the plaintiffs be permitted to bring an inverse condemnation action if the government should choose not to exercise its power of eminent domain prior to the seizure of private property. Collier, 733 F.2d at 1314 (citing Fountain, 678 F.2d at 1043). As we have already found, Delaware recognizes sufficient post-deprivation procedures to compensate the plaintiffs assuming that a taking has actually occurred. These procedures preclude a finding that the Property has been taken in violation of a right, privilege or immunity secured by the constitution or laws of the United States. Since the alleged taking was not without "just compensation" or the means to obtain it, we hold that the plaintiffs have failed to state a claim under section 1983.[6]E.g., Cassettari, 824 F.2d at 739.
Because we conclude that the exercise of the power of eminent domain would not offend due process, we do not find the Supreme Court's decisions in Hudson v. Palmer, 468 U.S. 517, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984), Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), and Logan v. Zimmerman Brush Co., 455 U.S. 422, 102 S.Ct. 1148, 71 L.Ed.2d 265 (1982), or the Third Circuit's decision in Stana v. School District of Pittsburgh, 775 F.2d 122 (3d Cir.1985) or their progeny to require a different result. These cases held that post-deprivation remedies are sufficient when the loss of property is the result of random, unauthorized acts by a state employee but that post-deprivation remedies are inadequate for due process purposes when property interest are lost as a result of an established government procedure. First, these cases speak only to the process that is due upon deprivation of personal property or of employment *1166 rights by government and not to the specific situation, addressed in Williamson and its progeny, where the government takes a landowner's real property. Second, assuming that these cases have some application, we find that even if Del DOT's decision to alter the Intersection was not random or unauthorized, but was the result of an established government procedure, any taking that may have occurred because of Del DOT's action was not the result of a "government program or process designed to infringe on property interests." Mitchell, 847 F.2d at 488 n. 2. The availability of a remedy through an inverse condemnation action obviates a finding at this stage of the case of a "design" by the defendants to infringe on the plaintiffs' property rights. Moreover, any effect upon the plaintiffs' property rights was caused by Del DOT's decision to alter the Intersection in order to alleviate an increasingly heavy traffic volume in the area and did not result from a plan by the state simply to take property. Therefore, following the reasoning of the court in Collier, we view this case as "more appropriately characterized as an [alleged] authorized governmental `taking' allegedly in violation of [the plaintiffs'] constitutional right to just compensation rather than a tortious deprivation of property in violation of rights to procedural due process." Collier, 733 F.2d at 1313-14 n. 4. Accordingly, we conclude that the Parratt-Hudson-Logan-Stana line of cases are not directly on point and do not mandate a different result.
Finally we note that our analysis of the plaintiffs' civil rights claim also comports with notions of comity between state and federal courts and notions of federalism. As the court in Collier stated, "[t]o assume jurisdiction in a case of this type would mean the opening of a floodgate to a multiplicity of federal actions involving all aspects of state eminent domain proceedings which in truth should be adjudicated under state procedures and in state forums." 733 F.2d at 1317 (quoting Light, 472 F.Supp. at 338). We have no desire to open a floodgate to the federal courts or to decide cases which more appropriately belong in state courts.
Because in this case there is no established underlying tort, that is a deprivation of a right, privilege or immunity established by the constitution and laws of the United States, we cannot rule on the plaintiffs' civil rights claim. Accordingly, these claims are also dismissed without prejudice.

III. CONCLUSION
The defendants' Motion for Summary Judgement will be denied. Instead, we will dismiss the plaintiffs' claims for lack of subject matter jurisdiction. If, after they have pursued their claims in state court, the plaintiffs have not been redressed for the alleged wrongs that may have occurred, they will be free to reinstitute their suit in this Court subject to the rules of claim and issue preclusion.
An appropriate order will follow.
NOTES
[1]  We note here that the plaintiffs' restraint on alienation claim would also fail under the first prong of the Williamson analysis. In addition to holding that takings claims in federal court are premature unless state court remedies are pursued first, the Court in Williamson held that takings claims based on application of a regulatory scheme are not ripe until "the governmental entity charged with implementing the regulations has reached a final decision regarding the application of the regulations to the property at issue." 473 U.S. at 186, 105 S.Ct. at 3116. In the instant case, there was no final action by the state of Delaware regarding alteration of the Intersection until the adoption of the federally approved plan in July of 1986. Therefore, a decrease in value of the Property, if any, as a result of rumors circulating from 1968 until July, 1986, regarding transformation of the Intersection is not a compensable injury. E.g., id.; Sinaloa, 864 F.2d at 1478; Austin, 840 F.2d at 679-80.
[2]  An inverse condemnation action is an action brought by a landowner for compensation after a taking has occurred.
[3]  Difficult issues of claim and issue preclusion are raised by an action in state court, however. The plaintiffs' counsel is urged to research carefully the applicable law so that if, in a possible state court action, the plaintiffs want to preserve their federal causes of action they are not lost due to inartful pleading. For a logical and well-reasoned discussion of the interplay between state and federal law in this area, Judge Brotman's opinion in Peduto v. City of North Wildwood, 696 F.Supp. 1004, 1009-12 (D.N.J. 1988) (examining New Jersey state law and federal law), is helpful.
[4]  Further, we consider that Del DOT's activities with respect to advance acquisitions involved primarily basic contract law principles. Del DOT negotiated with the plaintiffs, made offers which were refused, and then withdrew the offers once they determined that the Property was not needed for the Intersection as finally designed. We think it would be difficult to term an offeror's withdrawal of an offer as arbitrary when the reason for the offer being made in the first place had disappeared.

The fact that Del DOT may have acquired other properties under its advance acquisition scheme, which properties are not presently needed for construction of the Intersection as finally designed, does not alter our conclusion. The purpose of advance acquisition is to purchase properties in anticipation that the property will be needed for future construction projects. That Del DOT may have made revisions or mistakes or may have been overly aggressive in acquiring other properties that are actually not now needed does not afford the plaintiffs any special right to have this Property acquired by the state.
[5]  Although the Third Circuit has not specifically addressed this issue since Elterich, we find that the court's reasoning in Rogin v. Bensalem Township, 616 F.2d 680 (3d Cir.1980), cert. denied, 450 U.S. 1029, 101 S.Ct. 1737, 68 L.Ed.2d 223 (1981), supports the court's earlier reasoning in Elterich. In Rogin, with respect to the issue of whether individuals had the right to due process protections prior to the passage of zoning regulations, the court stated:

To provide every person affected by legislation the various rights encompassed by due processincluding hearings, opportunity for confrontation and response, clear standards, an impartial arbiter, and possibly judicial review would be inconsistent with the structure of our system of government. The act of legislating necessarily entails political trading compromise, and ad hoc decisionmaking which, in the aggregate, produce policies that at least approximate a fair and equitable distribution of social resources and obligations.
616 F.2d at 693.
[6]  For example, if Del DOT's actions do not amount to a taking of the Property or of any interest in the Property, then it would be illogical to find that the defendants violated the plaintiffs' procedural due process rights by failing to institute condemnation proceedings because there would have been no reason to do so. Likewise, in the situation where no taking has occurred, it would be illogical to find that the defendants violated the plaintiffs' due process rights by wantonly, willfully, and knowingly depriving the plaintiffs of just compensation because none would have been due.


             Case: 18-11327   Date Filed: 12/17/2018   Page: 1 of 13

                                                            [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                               No. 18-11327
                           Non-Argument Calendar
                         ________________________

                 D.C. Docket No. 3:17-cr-00156-MMH-MCR-1

UNITED STATES OF AMERICA,

                                                              Plaintiff - Appellee,

                                     versus

TRAVIS DEMOND JOHNSON,

                                                           Defendant - Appellant.

                         ________________________

                  Appeal from the United States District Court
                      for the Middle District of Florida
                        ________________________

                              (December 17, 2018)

Before TJOFLAT, JORDAN, and ROSENBAUM, Circuit Judges.

PER CURIAM:

      Travis Johnson appeals his sentence of 105 months in prison after pleading

guilty to distribution of cocaine base and possession of a firearm after a felony
              Case: 18-11327    Date Filed: 12/17/2018   Page: 2 of 13

conviction. At sentencing, the district court applied an upward departure under

U.S.S.G. § 4A1.3 after finding that Johnson’s criminal-history category of III

under-represented the seriousness of his criminal history and the likelihood he

would reoffend. The court then imposed a sentence at the high end of the adjusted

guideline range. On appeal, Johnson argues that the court erred in failing to

provide notice before departing upward, that it abused its discretion in applying

§ 4A1.3, and that the sentence is substantively unreasonable. After careful review,

we affirm.

                                         I.

      Johnson pled guilty in November 2017 to one count of possession of a

firearm after a felony conviction, in violation of 18 U.S.C. § 922(g)(1), and two

counts of distribution of cocaine base, in violation of 21 U.S.C. § 841(a)(1). At the

plea hearing, he admitted to selling a firearm and crack cocaine to a confidential

informant working with the Bureau of Alcohol, Tobacco, Firearms, and

Explosives.

      In January 2018, a probation officer prepared Johnson’s presentence

investigation report (“PSR”), which was revised twice before sentencing. The

initial PSR recommended a total offense level of 21 and a criminal-history

category of III, which established an advisory guideline range of 46–57 months.

After the government objected to the offense-level calculation, the probation

                                         2
              Case: 18-11327     Date Filed: 12/17/2018   Page: 3 of 13

officer issued a revised PSR in February 2018 recommending a guideline range of

70–87 months based on a total offense level of 25 and a criminal-history category

of III. The final PSR, issued in March 2018, kept these same calculations.

      Each of the PSRs discussed Johnson’s criminal history and noted that a

departure may be warranted under U.S.S.G. § 4A1.3 based on the “adequacy” of

his criminal-history category of III. Johnson’s criminal-history category of III was

based on a total of four criminal-history points: (a) three points for convictions of

attempted second-degree murder and shooting into an occupied vehicle in 2004;

and (b) one point for a cocaine-possession conviction in 2014.

      According to the PSRs, Johnson was convicted of attempted murder after he

fired multiple bullets into a car occupied by his ex-girlfriend and another man,

striking him twice. He was sentenced to ten years in prison. While in prison,

Johnson was disciplined nine times for prison violations, including fighting. Then,

after his release to probation in 2013, Johnson violated the terms of his probation

multiple times, including by committing new violations of the law. The 2014

cocaine-possession conviction occurred while he was on probation. His probation

was revoked in 2016, and he was sentenced to 330 days in jail. He was arrested for

drug possession in early August 2017, and one week later, while out on bond for

that offense, he sold cocaine base to the confidential informant in this case.

                                          3
             Case: 18-11327     Date Filed: 12/17/2018   Page: 4 of 13

      Johnson also had a substantial juvenile record and a number of prior adult

convictions from 1998 to 2003. No criminal-history points were assigned for these

convictions. For the adult convictions, the offenses were varied and included

felony battery on a law enforcement officer, resisting and fleeing an officer, retail

theft, and drug possession.

      Sentencing was originally set for February 12, 2018, but the district court

continued the hearing to allow the parties to meet with the probation officer to

resolve outstanding disagreements about the PSR.           After the meeting, the

government submitted a “status update” stating, in relevant part, that it “supports

the probation office’s finding that there are potential grounds for an upward

departure” under § 4A1.3. As grounds for that departure, the government cited

Johnson’s conviction for attempted murder, the associated prison and probation

violations, and his commission of offense conduct shortly after being arrested for

drug possession.    For his part, Johnson sought a downward departure under

§ 4A1.3.

      When sentencing resumed on March 20, 2018, Johnson moved for a

downward departure under § 4A1.3 on the ground that his criminal-history

category overrepresented his criminal history because his attempted-murder

conviction was old and he had been conviction-free from 2003 to 2014. The

government responded that the conduct of conviction was serious and that the

                                         4
               Case: 18-11327   Date Filed: 12/17/2018   Page: 5 of 13

conviction-free period from 2003 to 2014 could not be viewed in Johnson’s favor

since he was incarcerated during that time.       The government also noted that

Johnson was not assessed any criminal-history points for the probation violations.

      The district court denied Johnson’s § 4A1.3 downward-departure request

and then concluded that an upward departure was warranted under the same

provision. Citing the multiple convictions that were not assessed criminal-history

points, the varied nature of those convictions, and the fact that there was almost no

break in Johnson’s criminal activity except when he was in custody, the court

determined that his criminal-history category underrepresented his criminal history

and his likelihood of reoffending. So the court departed upward to criminal-history

category IV.    Combined with a total offense level of 25, this established an

advisory guideline range of 84 to 105 months.

      The district court then heard argument on the 18 U.S.C. § 3553(a) factors

and allocution from Johnson. The government argued for a sentence at the top of

the new range, emphasizing Johnson’s prior violent history and the facts of this

case showing Johnson’s access to multiple firearms. Johnson requested a sentence

below the guideline range to account for his mental health and substance-abuse

issues and the abuse and neglect he experienced growing up. Johnson personally

addressed the court, expressing remorse for his conduct and a desire to reform.

                                         5
             Case: 18-11327     Date Filed: 12/17/2018   Page: 6 of 13

      Ultimately, the district court sentenced Johnson to 105 months of

imprisonment, at the high end of the post-departure guideline range. The court

explained that a substantial sentence was necessary to reflect the seriousness of the

offense, promote respect for the law, provide just punishment, and promote the

goals of deterrence and protection of the public. It cited Johnson’s “personal

history of intentional gun violence,” his current involvement in guns and drugs,

and the fact that he had quickly reverted to criminal activity upon being released to

probation after serving a ten-year prison sentence. Along with these aggravating

factors, the court also considered his “challenging” and “disturbing” childhood,

which the court recognized had likely contributed to his criminal activity, and it

credited Johnson’s recognition that he “cannot return to this type of conduct.”

      When asked for objections at the end of the hearing, Johnson argued that the

district court erred by failing to provide notice of the § 4A1.3 departure and by

failing to adequately explain the basis for the departure. Overruling the objections,

the court noted that both the probation officer and the government had given notice

of the departure before sentencing. Johnson now appeals his sentence.

                                         II.

      In reviewing a sentence, we make sure that it is both free from significant

procedural error and substantively reasonable. Gall v. United States, 552 U.S. 38,

51 (2007).    Significant procedural errors include improperly calculating the

                                         6
               Case: 18-11327      Date Filed: 12/17/2018      Page: 7 of 13

guideline range and failing to consider the sentencing factors under 18 U.S.C.

§ 3553(a). Id. If the sentence is procedurally sound, we then consider whether it is

substantively reasonable under the totality of the circumstances, giving due

deference to the district court’s assessment of the § 3553(a) factors. Id.

                                            III.

       We first address Johnson’s challenge to the district court’s decision to depart

upward under U.S.S.G. § 4A1.3.

                                             A.

       Johnson argues that the district court procedurally erred by failing to provide

notice of its intent to depart upward. As a general rule, district courts must give

notice before departing under the guidelines. 1           See Fed. R. Crim. P. 32(h).

Specifically, Rule 32(h) states,

       Before the court may depart from the applicable sentencing range on a
       ground not identified for departure either in the presentence report or
       in a party’s prehearing submission, the court must give the parties
       reasonable notice that it is contemplating such a departure. The notice
       must specify any ground on which the court is contemplating a
       departure.

We review de novo the interpretation of rules of federal procedure. United States

v. Lopez, 562 F.3d 1309, 1311 (11th Cir. 2009).

       1
         In contrast, no advance notice is required for variances from the advisory guideline
range based on the 18 U.S.C. § 3553(a) sentencing factors. Irizarry v. United States, 553 U.S.
708, 714–16 (2008).
                                              7
             Case: 18-11327     Date Filed: 12/17/2018   Page: 8 of 13

      Here, the district court did not err by failing to give notice before departing

under § 4A1.3. As Rule 32(h) indicates, a court need not independently provide

notice if the specific ground for departure was identified in the PSR or a prehearing

submission. Johnson received notice in each of the PSRs and in the government’s

prehearing submission.     The PSRs noted the probation officer’s view that a

departure under § 4A1.3 may be warranted based on the “adequacy” of Johnson’s

criminal-history category. And the government’s presentencing “status update”

identified the specific grounds on which it contended that an upward departure

under § 4A1.3 was warranted. Together these two sources were enough to put

Johnson on notice and to defeat any claim of unfair surprise. Accordingly, the

district court did not improperly depart upward without notice under Rule 32(h).

                                         B.

      Johnson next contends that the § 4A1.3 upward departure was unwarranted.

We review a decision to depart upward for an abuse of discretion. United States v.

Magluta, 418 F.3d 1166, 1184 (11th Cir. 2005).

      Under § 4A1.3, a district court may impose an upward departure where

“reliable information indicates that the defendant’s criminal history category

substantially under-represented the seriousness of the defendant’s criminal history

or the likelihood that the defendant will commit other crimes.”            U.S.S.G.

§ 4A1.3(a)(1); see id. § 4A.1.3(a)(2) (identifying the types of information that may

                                         8
             Case: 18-11327     Date Filed: 12/17/2018   Page: 9 of 13

support an upward departure, including “[p]rior sentence(s) not used in computing

the criminal history category”). In determining the extent of a departure under

§ 4A1.3, the court should use, “as a reference, the criminal history category

applicable to defendants whose criminal history or likelihood to recidivate most

closely resembles that of the defendant’s.” Id. § 4A1.3(a)(4).

      Here, the district court reasonably concluded that Johnson’s criminal-history

category of III (four to six criminal-history points) substantially under-represented

the seriousness of his criminal history and the likelihood that he will commit other

crimes. Johnson received four criminal-history points for convictions of attempted

second-degree murder, shooting into an occupied vehicle, and possession of

cocaine. But undisputed information in the PSR also reflects a number of unscored

adult convictions from 1998 to 2003, before his arrest for attempted murder, and a

continuation of criminal conduct upon his release to probation after serving a ten-

year prison sentence. See United States v. Aguilar-Ibarra, 740 F.3d 587, 592 (11th

Cir. 2014) (district courts may rely on undisputed statements in the PSR). Faced

with these undisputed facts, the district court did not abuse its discretion by

concluding that the next criminal-history category of IV (seven to nine criminal-

history points) more accurately represented Johnson’s criminal history and

likelihood of reoffending.

                                        IV.

                                         9
             Case: 18-11327     Date Filed: 12/17/2018    Page: 10 of 13

      Finally, Johnson argues that his sentence is substantively unreasonable. We

review the reasonableness of a district court’s choice of sentence for an abuse of

discretion. United States v. Irey, 612 F.3d 1160, 1188 (11th Cir. 2010) (en banc).

      In general, the district court must impose a sentence that is sufficient, but not

greater than necessary, to comply with the purposes of sentencing. 18 U.S.C.

§ 3553(a).   These purposes include the need for the sentence to reflect the

seriousness of the offense, to promote respect for the law, to provide just

punishment, to afford adequate deterrence, and to protect the public.               Id.

§ 3553(a)(2)(A)–(C).     The court must also consider, among other factors, the

nature and circumstances of the offense, the history and characteristics of the

defendant, and any relevant policy statements issued by the Sentencing

Commission. Id. § 3553(a)(1), (5). The weight to be given each § 3553(a) factor

is within the court’s sound discretion. United States v. Kuhlman, 711 F.3d 1321,

1327 (11th Cir. 2013).

      “The party challenging a sentence has the burden of showing that the

sentence is unreasonable in light of the entire record, the § 3553(a) factors, and the

substantial deference afforded sentencing courts.” United States v. Rosales-Bruno,

789 F.3d 1249, 1256 (11th Cir. 2015). Ordinarily, “we will reverse a sentence as

substantively unreasonable only if we are left with the definite and firm conviction

that the [d]istrict [c]ourt committed a clear error of judgment in weighing the

                                          10
               Case: 18-11327      Date Filed: 12/17/2018       Page: 11 of 13

factors by arriving at a sentence outside the range of reasonable sentences dictated

by the facts of the case.” United States v. Alberts, 859 F.3d 979, 985 (11th Cir.

2017) (quotation marks omitted).

       Here, Johnson’s sentence is substantively reasonable. The district court

persuasively explained its reasons for concluding that the 105-month sentence was

necessary to reflect the seriousness of the offense, promote respect for the law,

provide just punishment, and promote the goals of deterrence and protection of the

public. As the court stated, Johnson had a “personal history of intentional gun

violence,” having been convicted of attempted murder; his offense conduct showed

that he was still involved with guns and drugs; and he had quickly reverted to

criminal activity upon being released to probation after serving a ten-year prison

sentence. Based on these factors, the court reasonably concluded that a sentence at

the top of the post-departure guideline range was sufficient but not greater than

necessary to comply with § 3553.

       While Johnson contends that the district court failed to consider some

mitigating factors and should have weighed others more heavily, he has not shown

an abuse of discretion. 2 The court expressly considered Johnson’s “challenging”

and “disturbing” childhood, which it found likely contributed to his criminal

       2
         We lack jurisdiction to review Johnson’s contention that the district court should have
departed downward under U.S.S.G. §§ 5H1.6 and 5K2.0(a)(4), United States v. Webb, 139 F.3d
1390, 1394 (11th Cir. 1998), though we consider his arguments in this regard under § 3553(a).
                                              11
              Case: 18-11327     Date Filed: 12/17/2018   Page: 12 of 13

activity, and it credited his acceptance of responsibility both in the offense-level

calculation and in its explanation for the sentence.       As for other factors not

mentioned, our precedent makes clear that although a court must consider the §

3553(a) factors prior to sentencing, “it need not discuss each of them.” United

States v. Talley, 431 F.3d 784, 786 (11th Cir. 2005). The record shows that the

court considered and weighed the relevant § 3553(a) factors and arrived at a

sentence within “the range of reasonable sentences dictated by the facts of the

case.” Alberts, 859 F.3d at 985.

      Johnson’s remaining arguments are off the mark. He repeatedly asserts that

the district court failed to explain or justify its upward “variance,” but no variance

was imposed in this case.        Johnson does not dispute that his pre-departure

guideline range was properly calculated to be 70–87 months.            And after the

departure, the court imposed a sentence within the adjusted guideline range. In

addition, contrary to Johnson’s suggestion, the court properly considered the

particular facts of Johnson’s criminal history when weighing the § 3553(a) factors,

despite some overlap with the court’s reasons for imposing the upward departure

under § 4A1.3. See Rosales-Bruno, 789 F.3d at 1259–60 (“In assigning weight to

the § 3553(a) factors as part of the weighing process, a court may (and should)

consider individualized, particularized, specific facts and not merely the guidelines

label that can be put on the facts.”).

                                          12
      Case: 18-11327    Date Filed: 12/17/2018   Page: 13 of 13

For these reasons, we affirm Johnson’s 105-month prison sentence.

AFFIRMED.

                                 13


266 S.W.2d 728 (1954)
EAST
v.
McMENAMY.
No. 43929.
Supreme Court of Missouri, Division No. 2.
March 8, 1954.
Rehearing Denied April 12, 1954.
*729 Granville L. Gamblin, St. Louis, Alvin S. Juergensmeyer, Warrenton, for appellant.
Robert V. Niedner, Paul F. Niedner, Niedner & Niedner, St. Charles, for respondent.
TIPTON, Presiding Judge.
This is an action brought by appellant to recover for the wrongful death of her husband, which resulted from the collision of an automobile driven by deceased and a truck driven by respondent. Appellant sought recovery only under our humanitarian doctrine. At the close of appellant's evidence, the trial court directed a verdict for respondent.
Verdayne Schacher testified that he was a member of the Missouri State Highway Patrol, stationed at Wentzville, Missouri. He testified that on September 1, 1952, he went to the scene of an accident two or three miles east of Wentzville, on a new stretch of Highway 40 where it intersects with a county road leading to Gilmore, Missouri; that when he arrived there an Oldsmobile 88 was in the center of the highway and an International truck was lying on its right side on the north shoulder of the highway, headed west; that the occupants of the Oldsmobile apparently were dead; that respondent was at the scene; *730 that the witness measured the skid marks made by the Oldsmobile; that there were 41 feet of brake marks and 24 feet of skid marks before the Oldsmobile hit the back of the truck; that there were 4 skid marks and that they were all in the north lane; that the right hand skid mark was about a foot north of the center line of the highway, in fact, all of the skid marks were in the north lane and were more or less parallel to the center line; that the skid marks came to an end just west of the west edge of the county road and it was that point which he determined to be the point of collision, judging by the debris and glass he found there; that the collision occurred in the north lane; that he measured the highway and it was 24 feet wide; that the highway was practically level; and that respondent stated to him that "I was making a left-hand turn and gave a signal. The first thing I know there was a big explosion and I found myself rolling around in the truck."
The appellant read certain statements from respondent's deposition. They were to the effect that as he approached the intersection he gave a left-hand turn signal; that he looked through the rearview mirror and saw a car traveling east; that this car was quite a distance back of respondent; that as he approached the intersection and began to make the turn, he glanced in the rearview mirror again and saw the car; that at the time he was making this turn north, he was struck by the automobile; that the front left side of his truck was even with the west edge of the county road intersection but on the concrete pavement, and his right front wheel was 5 feet north of the center line. He also stated in this deposition that he had been driving 18 miles an hour but slowed his truck to 10 miles an hour while making the turn.
There was testimony that Highway 40 at this place was new and was constructed of concrete, that the pavement was dry, that the tires on the automobile were practically new, that its brakes were in good condition, and that both respondent and deceased were driving east.
Joseph J. Feuchter testified on behalf of appellant. He stated that he received his engineering education at Cooper-Union Institute of Technology in New York; that he had been an engineer for 28 years; that for 19 years he had specialized in traffic and transportation; that he had acted as a consultant to several municipalities and the State Highway Department; and that he had had experience with and engaged in research activities with regard to speed of motor vehicles, including the acceleration and deceleration thereof.
This witness was asked if he could tell how long it would take an automobile to make skid marks of 65 feet, taking into consideration the facts that the surface of the highway was new concrete, that the highway was fairly level, that the tires on the automobile were new or fairly new, that the brakes on the automobile were in good condition, that the automobile collided with the rear end of a truck that was turning into the north lane, and that from the point of collision and impact the skid marks extended westerly 65 feet. His answer was that the time elapsed in making the skid marks would be 2.85 seconds.
On cross-examination this witness testified that it would not make any difference how fast the automobile was traveling at the time it started to skid; that an automobile going 100 miles an hour, commencing to skid, and skidding 65 feet, and an automobile going 50 miles an hour, commencing to skid, and skidding 65 feet, would take the same number of seconds in making the skids. He further testified that it would not make any difference whether an automobile was stopped by reason of the friction of its tires on the concrete or was stopped at the end of the skid by striking an object. He also testified that an automobile going 100 miles an hour, skidding 65 feet and hitting an object, would cover that 65 feet in the same time as an automobile going 50 miles an hour, skidding 65 feet and stopping by the friction of its tires on the concrete pavement. The witness also testified that the automobile in question traveled at an average rate of 15.9 miles an hour in skidding the 65 feet; that *731 the speed during the time of the skid was not constant; that during the first part of the skid, the car was going a great deal faster than 15.9 miles an hour; that at some place during the skid it was traveling exactly 15.9 miles an hour and that point was some point in the last quarter of the skid, "it would have to be down naturally near the stopping end of it."
The ultimate question before us is: Did the appellant's evidence make a case under the humanitarian doctrine? In ruling that question, it is our duty to give appellant the benefit of any and all facts and circumstances favorable to or tending to support her theory of the case, and exclude any fact or inference that is favorable to respondent. Steger v. Meehan, Mo.Sup., 63 S.W.2d 109; See v. Wabash R. Co., 362 Mo. 489, 242 S.W.2d 15. But, as respondent contends, this rule of law does not mean that the court is bound to accept without any evidence appellant's version of how the collision occurred, or permit the jury to speculate on how it occurred, when the only evidence presented in this case is not only beyond all reason but is, in fact, physically impossible. The rule that a plaintiff's evidence is to be taken as true only exists where the plaintiff's evidence is not impossible as opposed to the physics of the case and not entirely beyond reason. Where well established physical facts and common observations and experiences are in conflict with the testimony of a witness, his testimony in this respect does not constitute evidence and must be disregarded. State ex rel. Kansas City Southern Ry. Co. v. Shain, 340 Mo. 1195, 105 S.W.2d 915; Mahl v. Terrell, 342 Mo. 15, 111 S.W.2d 160; Freed v. Mason, Mo.App., 137 S.W.2d 673; Bauer v. Wood, 236 Mo.App. 266, 154 S.W.2d 356.
Mr. Feuchter's testimony was to the effect that deceased's automobile consumed 2.85 seconds in making the 65 feet of skid marks on the concrete pavement of Highway 40, that the automobile would have consumed 2.85 seconds in making the 65 feet of skid marks, regardless of the speed at which the automobile was traveling when it started skidding, and this fact is true even if it did or did not collide with a truck at the end of the skid. That is to say, the automobile was stopped at the end of 65 feet because it struck a truck but the time consumed would have been the same if the automobile had stopped in 65 feet solely because of the friction of the tires' skidding on the pavement. The formula that this witness used, as set out in the evidence, is the same under all of the verious conditions above mentioned. He further testified that the automobile in traveling this 65 feet in 2.85 seconds traveled at a rate of 15.9 miles an hour; that the average rate of speed was not constant; and that at some point in the last quarter of this distance the automobile traveled exactly 15.9 miles an hour, and after that point was reached at a slower rate of speed. When we consider these facts with the further facts that the truck was knocked over on its side and found on the north shoulder of the highway headed west, and the automobile the deceased was driving was demolished with parts of the engine and dashboard found in the rear part of the automobile, we are constrained to hold that this witness' evidence is contrary to physical facts and in conflict with common observations and experiences of men. It, therefore, does not constitute evidence and must be disregarded. Such evidence is no more than mere conjecture and speculation.
For the purpose of this case this court will assume that a jury could find that the deceased was in a position of peril during the time his automobile was skidding the 65 feet and, in addition thereto, three-fourths of a second reaction time, yet, with witness Feuchter's testimony eliminated, there is no evidence showing the length of time deceased was in a position of peril.
A defendant is under no duty to do anything under the humanitarian rule until a plaintiff comes into a position of imminent peril. Buehler v. Festus Mercantile Co., 343 Mo. 139, 119 S.W.2d 961; Paydon v. Globus, Mo.Sup., 262 S.W.2d 601. A likelihood or a bare possibility of injury is not sufficient to create imminent peril. It *732 is the duty of appellant to establish, by substantial evidence of probative value drawn therefrom, the length of time the deceased was in a position of peril. Evidence that is merely speculative, a guess or conjecture is not sufficient. Paydon v. Globus, supra.
There is no evidence that after deceased came into a position of peril that there was any time for the respondent, with the means at hand, to avert the impending accident. Banks v. Morris & Co., 302 Mo. 254, 257 S.W. 482; Hunt v. Chicago, M. St. P. & P. R. Co., 359 Mo. 1089, 225 S.W. 2d 738; Young v. St. Louis Public Service Co., 250 S.W.2d 689. We are of the opinion that under this record the evidence was insufficient to submit the humanitarian issue to the jury.
The question now presents itself as to what disposition should be made of this case.
"The furtherance of justice requires that a case should not be reversed without remanding unless the appellate court is convinced that the facts are such that a recovery cannot be had; and even though the plaintiff fails to substantiate the theory upon which his case was tried, if he nevertheless shows a state of facts which might entitle him to recover if his case were brought upon a proper theory, the judgment will not be reversed outright, but instead, in the exercise of a sound judicial discretion, the case will be remanded to give him the opportunity to amend his petition, if so advised, so as to state a case upon the theory which his evidence discloses." Smith v. Terminal R. R. Ass'n of St. Louis, Mo.App., 160 S.W.2d 476, loc. cit. 479.
See, also, Patzman v. Howey, 340 Mo. 11, 100 S.W.2d 851; Hunt v. Chicago, M. St. P. & P. R. Co., supra; Stone v. Farmington Aviation Corp., Mo.Sup., 253 S.W.2d 810.
The case of Cudney v. Midcontinent Airlines, Mo.Sup., 254 S.W.2d 662, was an action for personal injuries submitted under the res ipsa loquitur doctrine. The jury returned a verdict for defendant. We held that plaintiff was not entitled to a res ipsa loquitur submission of her cause, but since there were some circumstances from which inferences of specific negligence might be drawn, we reversed the judgment and remanded the cause so that the plaintiff might plead specific negligence.
In the record before us, there is some evidence that respondent gave a left-hand turn signal, but there is no evidence from which the conclusion can be drawn that he used the highest degree of care in looking both straight ahead and laterally as he started to make the turn described in evidence. Hornbuckle v. McCarty, 295 Mo. 162, 243 S.W. 327, 25 A.L.R. 1508; Brown v. Toedebush Transfer, 354 Mo. 611, 190 S.W.2d 239.
It may be that from the evidence inferences of specific negligence may be drawn, therefore, the judgment is reversed and the cause remanded so appellant may plead specific negligence, if she is so advised.
All concur.


                                                         [DO NOT PUBLISH]

             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT                     FILED
                      ________________________          U.S. COURT OF APPEALS
                                                          ELEVENTH CIRCUIT
                                                             February 5, 2008
                             No. 07-11011                  THOMAS K. KAHN
                         Non-Argument Calendar                 CLERK
                       ________________________

                   D. C. Docket No. 06-20319-CR-UUB

UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                  versus

LEIGH JESSE QUINTO,

                                                         Defendant-Appellant.

                       ________________________

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

                            (February 5, 2008)

Before CARNES, BARKETT and FAY, Circuit Judges.

PER CURIAM:
       Leigh Jesse Quinto, proceeding pro se, appeals his conviction and 240-

month sentence for distribution of cocaine, in violation of 21 U.S.C. § 841(a)(1)

and (b)(1)(C). First, Quinto argues that the district court lacked subject matter

jurisdiction over his offense of conviction, asserting that the offenses codified in

Title 21 of the United States Code do not constitute federal crimes “cognizable by

[the district court] pursuant to Title 18.” Quinto also contends that his Fifth

Amendment grand jury right was violated, asserting that the evidence presented to

the grand jury was falsified, and notes that his requests for grand jury materials to

support this claim were denied. Second, Quinto argues that his 240-month

sentence was both procedurally and substantively unreasonable.1 Quinto asserts

that the district court incorrectly calculated his advisory sentencing range as if he

had been convicted of conspiracy, and failed to consider the sentencing factors

enumerated in 18 U.S.C. § 3553(a) in fashioning his sentence. Last, Quinto argues

that he was denied his Sixth Amendment right to effective assistance of counsel,

asserting that his trial counsel made numerous mistakes and had a personal conflict

of interest because counsel’s son died of a drug overdose.

       1
          We decline to address Quinto’s remaining argument concerning the accuracy of the
district court’s order of judgment and conviction, which is without merit. Additionally, we
decline to address Quinto’s argument that the district court erred by sentencing him as a career
offender absent a notice of prior convictions under 21 U.S.C. § 851 , which was raised for the first
time in his reply brief. See United States v. Britt, 437 F.3d 1103, 1104-05 (11th Cir. 2006).

                                                 2
      For the reasons set forth more fully below, we affirm Quinto’s conviction

and sentence.

                                            I.

      A. District Court Subject Matter Jurisdiction

      We will examine a district court’s jurisdiction over an action even when the

district court does not address those jurisdictional issues. See United States v.

Giraldo-Prado, 150 F.3d 1328, 1329 (11th Cir. 1998) (per curiam) (acknowledging

that “a party may raise jurisdiction at any time during the pendency of the

proceedings”). We review questions of subject matter jurisdiction de novo. Id.

Generally, a motion alleging a defect in the indictment must be made before trial,

unless the alleged defect is a failure to invoke the district court’s jurisdiction or to

state an offense. Fed.R.Crim.P. 12(b)(3)(B).

      “Congress has provided the district courts with jurisdiction . . . of ‘all

offenses against the laws of the United States.’” Alikhani v. United States, 200

F.3d 732, 734 (11th Cir. 2000) (per curiam) (quoting 18 U.S.C. § 3231). Where an

indictment charges a defendant with violating the laws of the United States, § 3231

provides the district court with subject matter jurisdiction and empowers it to enter

judgment on the indictment. Id. at 734-35.

      Quinto’s claim that the district court lacked jurisdiction to adjudicate the

                                            3
charged drug offenses is without merit. The indictment charged Quinto and his

codefendants with violations of the laws of the United States: 21 U.S.C. §§ 846,

841(a)(1), (b)(1)(A)(ii), and (b)(1)(C). This invoked the district court’s subject

matter jurisdiction under 18 U.S.C. § 3231. Alikhani, 200 F.3d at 734-35.

Accordingly, we affirm Quinto’s conviction in this respect.

      B. Grand Jury Proceedings and Motion for Disclosure of Grand Jury
      Materials

      We review a district court’s order regarding the disclosure of grand jury

transcripts for an abuse of discretion, keeping in mind that “the district court has

substantial discretion in determining whether grand jury materials should be

released.” United States v. Aisenberg, 358 F.3d 1327, 1338, 1349 (11th Cir. 2004)

(quotation omitted). “It has long been a policy of the law that grand jury

proceedings be kept secret.” Id. at 1346-47. This secrecy principle is codified

under Fed.R.Crim.P. 6(e)(2), which prohibits the disclosure of grand jury material

except in the limited circumstances described in Rule 6(e)(3). Id. at 1347. The

portion of that provision at issue is:

      The court may authorize disclosure--at a time, in a manner, and
      subject to any other conditions that it directs--of a grand-jury matter:
            (i) preliminarily to or in connection with a judicial proceeding;

             (ii) at the request of a defendant who shows that a ground may
             exist to dismiss the indictment because of a matter that occurred
             before the grand jury.

                                           4
Fed.R.Crim.P. 6(e)(3)(E)(I) and (ii).

      The Supreme Court has held that the Rule 6(e) exceptions apply only when a

party seeking disclosure of grand jury material shows a “particularized need” for

that material. See Douglas Oil Co. of Cal. v. Petrol Stops Nw., 441 U.S. 211, 222,

99 S.Ct. 1667, 1674, 60 L.Ed.2d 156 (1979). The Supreme Court explained that a

party meets this standard when he shows “that the material [he] seek[s] is needed

to avoid a possible injustice in another judicial proceeding, that the need for

disclosure is greater than the need for continued secrecy, and that [his] request is

structured to cover only material so needed.” Id. The Supreme Court stated that

“[s]uch a showing must be made even when the grand jury whose transcripts are

sought has concluded its operations.” Id. We have explained that a party meets

the particularized need standard when he shows that “circumstances had created

certain difficulties peculiar to this case, which could be alleviated by access to

specific grand jury material, without doing disproportionate harm to the salutary

purpose of secrecy embodied in the grand jury process.” Aisenberg, 358 F.3d at

1348-49.

      Here, Quinto appears to challenge the district court’s denial of his Rule 6(e)

motions for disclosure of grand jury materials based on the contention that those

materials support his claims that evidence presented to the grand jury concerning

                                           5
the drug quantity attributable to his conduct was falsified, and that improper

procedures were used to obtain his indictment. Quinto’s general requests for grand

jury materials, however, did not establish the requisite particularized need to merit

disclosure under Rule 6(e). See Douglas Oil Co. of Cal., 441 U.S. at 222, 99 S.Ct.

at 1674. Specifically, Quinto failed to describe any “difficulties peculiar to [his]

case” that merited disclosure, instead presenting unsubstantiated allegations that

the evidence presented before the grand jury was falsified. See Aisenberg, 358

F.3d at 1348-49. We have held that unsubstantiated allegations do not satisfy the

“particularized need” standard. United States v. Cole, 755 F.2d 748, 759 (11th Cir.

1985). Accordingly, because Quinto did not show that he had a particularized need

for the material sought, the district court did not abuse its discretion in denying his

motions. See Aisenberg, 358 F.3d at 1338, 1349. We therefore affirm Quinto’s

conviction in this respect.

                                           II.

      We review the final sentence imposed by the district court for

reasonableness. United States v. Winingear, 422 F.3d 1241, 1244 (11th Cir. 2005).

Unreasonableness may be procedural, when the court’s procedure does not follow

the requirements set forth in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738,

160 L.Ed.2d 621 (2005), or substantive. See Gall v. United States, ___ U.S. ___,

                                           6
128 S.Ct. 586, 597, ___ L.Ed.2d ___ (2007); United States v. Hunt, 459 F.3d 1180,

1182 n.3 (11th Cir. 2006). The Supreme Court has explained that a sentence may

be procedurally unreasonable if the district court improperly calculates the

guideline imprisonment range, treats the Guidelines as mandatory, fails to consider

the appropriate statutory factors, bases the sentence on clearly erroneous facts, or

fails to adequately explain its reasoning. Gall, ___ U.S. at ___, 128 S.Ct. at 597.

The Court also has explained that the substantive reasonableness of a sentence is

reviewed under an abuse-of-discretion standard. Id. It has suggested that review

for substantive reasonableness under this standard involves inquiring whether the

factors in 18 U.S.C. § 3553(a) support the sentence in question. Id. at ___, 128

S.Ct. at 600.

      When imposing a sentence, the district court must first correctly calculate

the Guidelines. United States v. Talley, 431 F.3d 784, 786 (11th Cir. 2005).

Second, the district court must consider the following factors to determine a

reasonable sentence:

      (1) the nature and circumstances of the offense and the history and
      characteristics of the defendant; (2) the need to reflect the seriousness
      of the offense, to promote respect for the law, and to provide just
      punishment for the offense; (3) the need for deterrence; (4) the need to
      protect the public; (5) the need to provide the defendant with needed
      educational or vocational training or medical care; (6) the kinds of
      sentences available; (7) the Sentencing Guidelines range; (8) pertinent
      policy statements of the Sentencing Commission; (9) the need to

                                           7
      avoid unwanted sentencing disparities; and (10) the need to provide
      restitution to victims.

Id. (citing 18 U.S.C. § 3553(a)). While the district court must consider the

§ 3553(a) factors, it is not required to discuss each factor. Id. Instead, we have

held that an explicit acknowledgment that the district court has considered the

defendant’s arguments and the § 3553(a) factors will suffice. United States v.

Scott, 426 F.3d 1324, 1329-30 (11th Cir. 2005); see also Rita v. United States, 551

U.S. __, 127 S.Ct. 2456, 2469, 168 L.Ed.2d 203 (2007) (holding that the

defendant’s sentence was reasonable when the district court considered the parties’

arguments and provided a reasoned basis for its choice of sentence).

      “[T]here is a range of reasonable sentences from which the district court may

choose” and the burden of establishing that the sentence is unreasonable in light of

the record and the § 3553(a) factors lies with the party challenging the sentence.

Talley, 431 F.3d at 788. We have held that a sentence within the guidelines range

is neither per se reasonable, nor entitled to a presumption of reasonableness. See

id. at 786-88; Hunt, 459 F.3d at 1185. However, the Supreme Court has held that,

in reviewing sentences for reasonableness under 18 U.S.C. § 3553(a), a federal

appellate court may apply a presumption of reasonableness to a district court

sentence imposed within the guideline range. Rita, 551 U.S. at ___, 127 S.Ct. at

2462. Nevertheless, it appears that, even in light of Rita, our previous holdings

                                          8
remain intact. United States v. Campbell, 491 F.3d 1306, 1313-14 n.8 (11th Cir.

2007) (restating our holding in Hunt, but noting that “the [Supreme] Court’s

rationale in Rita calls into question our reasons for not affording a presumption of

reasonableness”).

       “When the appealing party does not clearly state the grounds for an

objection in the district court, we are limited to reviewing for plain error.” United

States v. Massey, 443 F.3d 814, 818 (11th Cir. 2006). Under plain error review,

“[a]n 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. If all three conditions are met, an appellate court may then

exercise its discretion to notice a forfeited error, but only if (4) the error seriously

affects the fairness, integrity, or public reputation of the judicial proceedings.”

United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir. 2005) (citations and

quotations omitted).

       With regard to the procedural reasonableness of Quinto’s sentence, the

district court did not plainly err in its sentencing procedure. The record indicates

that the district court correctly calculated the advisory guideline range based on the

conduct related to Quinto’s offense of conviction, and his status as a career

offender. The record reflects that Quinto was at least 18 years old at the time of

                                              9
the instant offense and had at least 2 prior felony controlled substance convictions,

which qualified him as a career offender pursuant to U.S.S.G. § 4B1.1, resulting in

an advisory guideline range of 210 to 240 months’ imprisonment based on an

offense level of 32 and a criminal history category of VI. Quinto did not challenge

the validity of any of these convictions at sentencing, and did not object to the

district court’s finding that he qualified as a career offender. The record further

demonstrates that the district court expressly stated that it considered the

sentencing factors set forth in § 3553(a), specifically, Quinto’s personal history and

characteristics, and the need to promote respect for the law. The district court

further considered the parties’ arguments concerning the sentence to be imposed

based on the § 3553(a) factors, and sufficiently explained its reasons for imposing

the sentence. Accordingly, because Quinto failed to satisfy the first prong of the

plain error analysis, we do not address the remaining prongs, and affirm his

sentence in this respect.

      Quinto also has not established that his sentence is substantively

unreasonable. See Gall, ___ U.S. at ___, 128 S.Ct. at 597; Hunt, 459 F.3d at 1182

n.3. Quinto’s sentence of 240 months’ imprisonment is within the advisory

guideline range. Moreover, the record indicates that the district court considered

Quinto’s extensive criminal history and the need to promote respect for the law in

                                           10
determining that a Guidelines sentence was appropriate. Therefore, the § 3553(a)

factors supported the district court’s sentence, and the district court did not abuse

its discretion. See Gall, ___ U.S. at ___, 128 S.Ct. at 597, 601-02. Accordingly,

Quinto’s sentence is reasonable, and we affirm as to this issue.

                                          III.

      We generally do not consider claims of ineffective assistance of counsel for

the first time on direct appeal unless the record is sufficiently developed as to that

issue. United States v. Tyndale, 209 F.3d 1292, 1294 (11th Cir. 2000); see also

Massaro v. United States, 538 U.S. 500, 504, 123 S.Ct. 1690, 1694, 155 L.Ed.2d

714 (2003). We will, however, consider an ineffective-assistance claim on direct

appeal “if the record is sufficiently developed.” United States v. Bender, 290 F.3d

1279, 1284 (11th Cir. 2002). Additionally, the Supreme Court has articulated that,

while “[t]here may be cases in which trial counsel’s ineffectiveness is so apparent

from the record that appellate counsel will consider it advisable to raise the issue

on direct appeal,” generally, these claims are best raised in a 28 U.S.C. § 2255

motion. Massaro, 538 U.S. at 504-09, 123 S.Ct. at 1694-96. The Court reasoned

that the evidence introduced at trial is devoted to guilt or innocence, and, therefore,

the record on direct appeal will not disclose many of the facts necessary to make a

determination regarding the effectiveness of counsel. Id. at 504-06, 123 S.Ct. at

                                           11
1694-95. Further, the Court noted that there is no way to determine, based solely

on the trial record, whether counsel’s actions or omissions were the result of trial

strategy, as testimony from counsel is usually necessary. Id.

      In this case, Quinto did not raise the ineffective assistance issue below.

Therefore, the district court did not have an opportunity to develop a factual record

for consideration by this Court. See Tyndale, 209 F.3d at 1294; see also Massaro,

538 U.S. at 504-06, 123 S.Ct. at 1694-95. Moreover, even if the record were

sufficiently developed, Quinto did not provide any analysis, citations to the record,

or citations to any legal authority in his argument before us. Accordingly, we

decline to address this issue.

      In light of the foregoing, Quinto’s conviction and sentence are

      AFFIRMED.

                                          12


959 F.2d 233
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.AMWAY CORPORATION, Petitioner,v.INTERSTATE COMMERCE COMMISSION;  United States of America, Respondents,Central Michigan Railway Company, Intervenor.
No. 91-4126.
United States Court of Appeals, Sixth Circuit.
April 2, 1992.

Before KEITH and SILER, Circuit Judges;  and WELLFORD, Senior Circuit Judge.

ORDER

1
Petitioner Amway Corporation ("Amway") sought review of the decision of the Interstate Commerce Commission ("ICC") granting the application of Central Michigan Railway Company to abandon approximately 41 miles of rail line between Owosso and Ionia, Michigan.   On February 20, 1992, this court issued a stay of the decision of the ICC, conditioned upon the posting of a $25,000 bond by Amway.   Amway now moves for leave to voluntarily dismiss its appeal with prejudice, and requests that the stay be dissolved and that its $25,000 bond be returned.   The ICC and the United States consent to the motion and Intervenor Central Michigan Railway Company has not opposed it.   Upon review, we conclude that the relief sought by Amway should be granted.

2
It therefore is ORDERED that the motion to voluntarily dismiss is granted and this appeal is hereby dismissed with prejudice, each party to bear its own costs.   It further is ORDERED that the stay issued by this court on February 20, 1992, is hereby dissolved and the ICC is directed to return to Amway the $25,000 bond posted pursuant to the stay order.