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United States v. Marker

United States District Court, D. New Mexico

July 9, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
WARREN B. MARKER, Defendant.

          MEMORANDUM OPINION AND ORDER

          ROBERT C. BRACK UNITED STATES DISTRICT JUDGE

         This 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 motions.

         I. Motion for Dismissal or Time Served

         This is 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 3.)

         The 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).)

         Federal 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)).

         Length of Delay

         The 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 Delay

         “The 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 3-4.)

         After entering his guilty plea, Defendant contributed to the delay in sentencing by filing the following:

         (1) a 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 days;

         (2) a 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 days;

         (3) an 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) ...


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