United States v. Gutierrez.
No. 23-2076. 4/4/2025. D.N.M. Judge Tymkovich. US Sentencing Guidelines—Sixth Amendment Speedy Trial Right—Postconviction Sentencing—Prosecutorial Delay—Prejudice—COVID-19 Pandemic.
April 4, 2025
Gutierrez was arrested in May 2020 and charged with state and federal crimes related to reports that he had fired several rounds outside his estranged wife’s home and threatened to kill her multiple times. As to the state crimes, he pleaded guilty in October 2021 to two counts of aggravated assault with a deadly weapon against a household member and was sentenced to two years of imprisonment. He was released on May 5, 2022. As to the federal charge, Gutierrez was indicted for being a felon in possession of a firearm on August 11, 2020, while he was in a detention facility. Federal agents delivered the indictment and arrest warrant to the facility, but jail officials did not notify Gutierrez of the federal charge, which he learned about the day he was released from state custody. However, nothing had happened in the federal case after the indictment because during the summer of 2020, both federal and state governments had declared a public health emergency because of COVID-19. Federal officials took custody of Gutierrez the day after he completed his state sentence. His trial was set for July 18, 2022, but Gutierrez moved to continue his trial for 60 days, and the district court reset the trial for September 19, 2022. About a month before the trial date, Gutierrez moved to dismiss his indictment for violation of his speedy trial right, arguing that the government’s delay in prosecuting his case caused him to forfeit an argument he could have made at sentencing under US Sentencing Guidelines (USSG) § 5G1.3 that would have resulted in a lower sentence. The district court denied the motion, finding that the delay in the federal case was justified due to the pandemic, and Gutierrez failed to show prejudice caused by the delay. Gutierrez then pleaded guilty, agreeing to waive his right to appeal his conviction and sentence but retaining the right to appeal the district court’s denial of his Sixth Amendment claim. The district court determined a USSG range of 37 to 46 months applied to Gutierrez. It then made an upward departure under USSG § 5K2.6 for discharge of a firearm in the commission of the offense, thereby finding that a 70-month sentence was appropriate. The court then deducted the 24 months that Gutierrez had served for his state charge from the 70-month sentence, resulting in a sentence of 46 months of imprisonment, which was within the USSG range.
On appeal, Gutierrez argued that the government’s two-year delay in proceeding with his federal case violated his Sixth Amendment right to a speedy trial. He asserted that the government’s pretrial delay deprived him of an argument he could have made at sentencing that could have resulted in a shorter sentence. In determining whether there was a speedy trial violation, courts apply the balancing test set forth in Barker v. Wingo, 407 U.S. 514, 530 (1972), considering the length of and reason for delay, the defendant’s assertion of their right, and prejudice to the defendant. While courts consider all of these factors, a claim without prejudice nearly always fails, and the Tenth Circuit has never recognized postconviction sentencing as a cognizable form of prejudice for a speedy trial violation. Here, the first and third factors favor Gutierrez, because it is undisputed that he timely asserted his speedy trial right and because delays approaching one year are presumptively prejudicial. The second factor weighs in neither party’s favor because the COVID-19 pandemic prevented the government from moving Gutierrez’s case forward. As to whether Gutierrez was prejudiced by the delay, the speedy trial clause focuses on the preconviction phase of a case and does not extend to postconviction sentencing. Accordingly, prejudice suffered after a defendant has lost the presumption of innocence is irrelevant under the speedy trial clause, even if such prejudice resulted from pretrial delay. And though Gutierrez argued that the government’s delay impaired his defense, he did not assert that the delay affected the defense of his innocence. Gutierrez thus failed to show any prejudice from the government’s delay, and there was no speedy trial violation.
Gutierrez also argued that the district court erred by applying § 5K2.6 to enhance his sentence. However, Gutierrez agreed to waive the district court’s use of § 5K2.6 in determining the sentence, the district court’s use of § 5K2.6 was not bound up with his speedy trial claim, and Gutierrez did not show that his waiver was unlawful.
The sentence was affirmed.