United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
C. BRACK UNITED STATES DISTRICT JUDGE
matter is before the Court on Mr. Marker's Motion for
Dismissal or Time Served, filed on March 12, 2018 (Doc. 113),
Motion for a Hearing to Respond to United States' Motion
Doc. #115, filed on April 16, 2018 (Doc. 116), and Petition
for Ruleing [sic], filed on June 25, 2018 (Doc. 117). Mr.
Marker is incarcerated and appears pro se. For the reasons
discussed below, the Court denies all of Defendant's
Motion for Dismissal or Time Served
the fourth substantive motion Mr. Marker has filed in the
past year seeking to shorten his sentence. (See
Docs. 90; 105; 107.) In this motion, Mr. Marker asks the
Court to reduce his sentence pursuant to Federal Rule of
Criminal Procedure 32(b)(1) due to the delay between the date
he entered his guilty plea and the date he was sentenced.
(See Doc. 113.) Defendant alleges that he has
suffered prejudice from the delay, in that if he “had
been sentenced in a timely manner[, ]” he would have
been eligible for parole at the end of 2017. (Id. at
Court set out the background of this case in its January 2,
2018 Memorandum Opinion and Order and incorporates it here by
reference. (Doc. 103 at 1-2.) In short, Defendant
“entered into a plea agreement with the United States
on January 13, 2013.” (Id. at 2 (citing Doc.
44).) The Court sentenced Defendant to 70 months'
imprisonment on October 14, 2014, “the term to run
concurrently with the Defendant's state sentence . . .
.” (Id. (citing Doc. 85).)
Rule of Criminal Procedure 32(b)(1) requires the Court to
“impose [a] sentence without unnecessary delay.”
Courts look at four factors to determine whether a
defendant's rights have been violated by an excessive
delay before sentencing: “Length of delay, the reason
for the delay, the defendant's assertion of his right,
and prejudice to the defendant.” Perez v.
Sullivan, 793 F.2d 249, 253 (10th Cir. 1986) (quoting
Barker v. Wingo, 407 U.S. at 514, 530 (1972)
(internal citations and emphasis omitted)).
Court sentenced Mr. Marker 21 months after he pled guilty.
The government claims that “[c]ourts have held that
this length of delay is not presumptively prejudicial.”
(Doc. 115 at 2 (citing Pollard v. United States, 352
U.S. 354, 354 (1957) (24 months); United States v.
Tortorello, 391 F.2d 587, 587 (2d Cir. 1968) (29
months)).) There is, however, authority from the Tenth
Circuit that holds a 17-month delay is presumptively
prejudicial. United States v. Batie, 433 F.3d 1287,
1290 (10th Cir. 2006). As this factor weighs in Mr.
Marker's favor, the Court moves on to the remaining
Barker factors. See Id.
reason for a delay weighs against the government in
proportion to the degree to which the government caused the
delay.” Id. “A deliberate attempt to
delay a trial in order to secure a strategic advantage will
weigh heavily against the government, while valid reasons
will justify a delay.” Id. (citing
Barker, 407 U.S. at 531). “Negligence and
crowded court dockets . . . weigh against the government, but
less heavily than delays deliberately sought to gain improper
advantage.” Id. (citing Barker, 407
U.S. at 531). “[C]ontinuances and other motions filed
by the defendant[, ] do not weigh against the
government.” Id. (citing United States v.
Tranakos, 911 F.2d 1422, 1428 (10th Cir. 1990)). Here,
the government asserts that the majority of the delays in
this case arose because of defense motions. (Doc. 115 at
entering his guilty plea, Defendant contributed to the delay
in sentencing by filing the following:
Sentencing Memorandum filed on August 9, 2013, requesting a
sentence below the guideline range due to his mental and
emotional health (Doc. 53), which the Government responded to
on August 20, 2013 (Doc. 54) and Defendant withdraw in August
2014 (Doc. 78), resulting in a delay of approximately 11
Motion for Psychological Examination to Determine
Defendant's Mental Condition Prior to Sentencing, filed
on November 26, 2013 (Doc. 61), which the Court granted on
December 2, 2013, resulting in a delay of approximately six
Objection to Pre-sentence Report and Sentencing Memorandum,
filed on June 25, 2014 (Doc. 76), which the Government
responded to on June 26, 2014 (Doc. 77) ...