No Barker Prejudice from Sentencing Consequences: Tenth Circuit Limits Speedy Trial Clause to Preconviction Harms and Reinforces Waiver Enforcement

Case: United States v. Gutierrez (No. 23-2076)

Court: U.S. Court of Appeals for the Tenth Circuit

Date: April 4, 2025

Author: Judge Tymkovich (joined by Judges Baldock and McHugh)

Introduction

This published Tenth Circuit decision clarifies two important points of federal criminal procedure. First, it holds that for purposes of the Sixth Amendment’s Speedy Trial Clause and the Barker v. Wingo prejudice inquiry, harms that materialize at the sentencing phase—even if allegedly caused by pretrial delay—are not cognizable. The Speedy Trial Clause protects only the preconviction phase, from arrest or indictment through conviction or guilty plea. Second, the court reinforces its established approach to enforcing appeal waivers in plea agreements: the “miscarriage of justice” inquiry focuses on the lawfulness of the waiver itself, not alleged errors in calculating or imposing the sentence.

The case arises from a two-year gap between federal indictment and federal proceedings for a defendant simultaneously prosecuted in state court during the COVID-19 pandemic. The defendant, Luis Gutierrez, argued the delay deprived him of the opportunity to obtain concurrent time under U.S.S.G. § 5G1.3(b), thereby increasing his federal punishment. The panel rejected that theory of prejudice and affirmed his conviction and sentence, enforcing his appellate waiver against a challenge to an upward departure under U.S.S.G. § 5K2.6.

Summary of the Opinion

Sixth Amendment holding: Prejudice for Barker purposes must relate to harms suffered before conviction (e.g., oppressive pretrial incarceration, anxiety, or impairment of the defense at trial). Sentencing consequences are outside the Speedy Trial Clause’s scope. The two-year delay, driven largely by pandemic-related constraints and the U.S. Marshals Service’s temporary no-writ policy for state inmates, did not violate the Sixth Amendment because Gutierrez failed to show cognizable prejudice.
Application of Barker factors:
- Length of delay: Presumptively prejudicial (approx. two years) and weighs for the defendant.
- Reason for the delay: Neutral overall; COVID-19 is a “truly neutral” justification, with a slight tilt toward the defendant for a short period after restrictions lifted.
- Assertion of the right: Timely asserted and weighs for the defendant.
- Prejudice: Not shown. Claims of anxiety were generalized; pretrial incarceration was not oppressive and largely attributable to the state sentence; alleged sentencing harm is not cognizable under the Sixth Amendment.
Guidelines note: Even if sentencing-based harm counted (it does not), § 5G1.3(b) adjusts the sentence rather than the guideline range. The district court effectively provided equivalent relief by crediting 24 months of state time against the federal sentence.
Appeal waiver: Enforced. The challenge to an upward departure under § 5K2.6 falls within the waiver’s scope, and the “miscarriage of justice” exception looks to the waiver’s lawfulness, not alleged guideline errors. No basis to invalidate the waiver.

Factual and Procedural Background

In May 2020, New Mexico officers arrested Gutierrez after discovering a loaded, stolen pistol in his motel room; he had allegedly fired shots near his estranged wife’s home and threatened to kill her. He faced charges in both state and federal court. State proceedings moved first: he pleaded guilty in October 2021 to two counts of aggravated assault with a deadly weapon against a household member, received a two-year sentence, and was released on May 5, 2022.

Meanwhile, a federal grand jury indicted him in August 2020 for being a felon in possession of a firearm. Due to COVID-19, the U.S. Marshals Service in New Mexico directed the U.S. Attorney’s Office from May 2020 until early March 2022 not to seek writs to bring state inmates into federal custody. Federal authorities did not take custody of Gutierrez until the day after he completed his state sentence.

Federal proceedings then moved quickly: counsel was appointed, Gutierrez was arraigned and detained, and a July 2022 trial date was set. After a defense continuance to September, Gutierrez moved to dismiss the indictment for a Sixth Amendment violation. The district court denied the motion under Barker, and Gutierrez later pleaded guilty, while reserving the right to appeal the speedy-trial ruling and waiving his right to appeal his sentence.

At sentencing, the court calculated a guideline range of 37–46 months, departed upward to 70 months under § 5K2.6 for discharge of a firearm, and then credited the 24 months he had already served in state custody, imposing 46 months—still within the range.

Issues Presented

Did the two-year delay between federal indictment and federal proceedings violate the Sixth Amendment’s Speedy Trial Clause under Barker v. Wingo?
Is Gutierrez’s challenge to an upward departure under § 5K2.6 barred by his plea agreement’s appellate waiver?

Precedents Cited and Their Influence

Speedy Trial Framework and Scope

Barker v. Wingo, 407 U.S. 514 (1972): Establishes the four-factor balancing test: length of delay, reasons for delay, assertion of the right, and prejudice.
Betterman v. Montana, 578 U.S. 437 (2016): Key to this decision. Betterman holds that the Speedy Trial Clause protects the presumptively innocent from arrest/indictment through conviction and does not apply to sentencing. The Tenth Circuit relies on its textual and historical analysis (“the accused” and “trial” do not cover postconviction sentencing).
Klopfer v. North Carolina, 386 U.S. 213 (1967): Historical pedigree of the speedy trial right, tracing to Magna Carta and English common law commentators (including Coke).

Tenth Circuit Speedy Trial Cases

United States v. Keith, 61 F.4th 839 (10th Cir. 2023): COVID-19 is a “truly neutral” justification for delay; factor two is generally neutral when delays are due to pandemic constraints.
United States v. Nixon, 919 F.3d 1265 (10th Cir. 2019): Emphasizes that the absence of prejudice is “nearly fatal.” Suggests prejudice must arise from pretrial incarceration and effects on the defense—not postconviction outcomes.
United States v. Seltzer, 595 F.3d 1170 (10th Cir. 2010): Defines the types of prejudice the speedy trial right protects against: oppressive pretrial incarceration, anxiety and concern, and—most importantly—impairment of defense at trial.
United States v. Frias, 893 F.3d 1268 (10th Cir. 2018): “Delays approaching one year” are presumptively prejudicial; prejudice requires concrete impairment of the defense (e.g., loss of evidence, unavailable witnesses).
United States v. Muhtorov, 20 F.4th 558 (10th Cir. 2021): Generalized claims of anxiety are insufficient; “oppressive” incarceration requires more than short pretrial detention.
United States v. Margheim, 770 F.3d 1312 (10th Cir. 2014): Lack of prejudice can “eviscerate” a speedy trial claim.
United States v. Jumaev, 20 F.4th 518 (10th Cir. 2021): Notes absence of authority treating postconviction sentences as relevant to pretrial constitutional analysis.

Plea Waiver Enforcement

United States v. Hahn, 359 F.3d 1315 (10th Cir. 2004) (en banc): Sets the framework: scope of waiver, knowing and voluntary nature, and whether enforcement would result in a miscarriage of justice. The “otherwise unlawful” exception focuses on the waiver’s lawfulness; Olano’s fairness/integrity gloss applies after that threshold.
United States v. Holzer, 32 F.4th 875 (10th Cir. 2022); United States v. Smith, 500 F.3d 1206 (10th Cir. 2007); United States v. Sandoval, 477 F.3d 1204 (10th Cir. 2007); United States v. McCrary, 43 F.4th 1239 (10th Cir. 2022): Reiterate that the “unlawfulness” must be about the waiver itself, not the alleged sentencing error. Allowing sentencing disagreements to defeat waivers would nullify them.
United States v. Olano, 507 U.S. 725 (1993), and Rosales-Mireles v. United States, 585 U.S. 129 (2018): Rosales-Mireles applied Olano to plain-error review of guideline miscalculations on direct appeal. The Tenth Circuit explains that those cases concern appellate standards where there is no waiver; they do not transform a sentencing claim into a basis to invalidate an otherwise valid waiver.

Legal Reasoning

Applying Barker

Length of delay and assertion: The two-year delay is presumptively prejudicial and the defendant timely asserted his right; these factors favor Gutierrez.

Reasons for delay: The court treats COVID-19 and the U.S. Marshals Service no-writ policy as neutral justifications, consistent with Keith. Although the government could have moved a bit sooner once restrictions eased, that brief period only marginally tips for Gutierrez. Videoconferencing could not meaningfully substitute for required in-person proceedings (e.g., a jury trial), particularly given the presumption of innocence and the uncertainty of a plea.

Prejudice: This factor is dispositive. The Speedy Trial Clause protects presumptively innocent “accused” persons up to conviction; it does not protect against postconviction harms at sentencing. Gutierrez’s sole concrete claim of prejudice is that the delay deprived him of a chance to invoke § 5G1.3(b) to secure concurrency between his state and federal terms. But sentencing-based prejudice is noncognizable under the Sixth Amendment. The court underscores this with the mismatch between the alleged harm and the Sixth Amendment remedy (dismissal of charges), which makes sense only for trial-related prejudice.

The panel also notes that, even on its own terms, the § 5G1.3(b) claim is misframed: under the guideline and Application Note 2(D), concurrency adjusts the sentence, not the guideline range. Here the district court effectively delivered the same benefit by deducting the 24 months served on the state case from the federal sentence after applying an upward departure—resulting in a final 46-month sentence within the original range.

Bottom line under Barker: With no cognizable prejudice, Gutierrez’s Sixth Amendment claim fails despite the lengthy delay and prompt assertion.

Appellate Waiver Enforcement

Scope: The plea agreement expressly reserved only the right to appeal the denial of the speedy-trial motion. It waived any challenge to the “manner in which the sentence was determined or imposed,” which includes the upward departure under § 5K2.6. The court rejects the argument that the § 5K2.6 challenge is “bound up” with the speedy-trial claim; the two are analytically distinct.

Miscarriage of justice / “otherwise unlawful” waiver: The court reiterates that this prong examines whether the waiver is unlawful, not whether the sentence is. Invoking Rosales-Mireles does not help, because that decision addresses plain-error review of a sentencing error where no waiver blocks the appeal. Enforcing the waiver here does not “seriously affect the fairness, integrity, or public reputation of judicial proceedings.”

Impact and Practical Implications

Clarifying the boundaries of Sixth Amendment prejudice

This decision cements, as binding Tenth Circuit precedent, that Barker prejudice is confined to preconviction harms. Defense theories that pretrial delay increased a defendant’s ultimate sentence—by affecting concurrency, guideline enhancements, or other sentencing factors—cannot satisfy the prejudice prong of Barker. For Sixth Amendment purposes, counsel should marshal evidence of trial-stage impairments (lost witnesses, faded memories, lost exhibits) or oppressive pretrial detention directly attributable to federal delay.

COVID-19 delays and inter-sovereign custody

Keith’s “truly neutral” characterization of pandemic-related constraints continues to carry weight. When a defendant is serving a state sentence and federal authorities postpone writs due to public health policies, factor two will often be neutral, perhaps with a slight tilt against the government for any lag after restrictions lift. Arguments that videoconferencing should have been used are unlikely to succeed when substantive steps (e.g., trial) still require physical presence and the case outcome (plea vs. trial) is uncertain.

Concurrency and § 5G1.3(b)

The court flags a common misperception: § 5G1.3(b) governs the sentence, not the guideline range. Where federal and state offenses are related, judges can—if the provision applies—structure concurrent punishment; even if the window for concurrency closes, similar relief can often be provided through a back-end adjustment or variance recognizing time served (subject to limits and proper findings). Practitioners should be prepared to present a clear record on “relevant conduct” and the status of any “undischarged term” to trigger § 5G1.3(b) at the right time.

Plea waivers remain robust in the Tenth Circuit

Hahn, Holzer, Smith, and Sandoval continue to foreclose attempts to evade waivers by labeling sentencing grievances as “miscarriages of justice.” Unless the waiver itself is infirm (e.g., involuntary, based on impermissible factors, or beyond what can be waived), appellate courts will enforce it. Defendants contemplating appeals about guideline applications, departures, or variances should understand that broad waivers will likely bar review, absent narrow carve-outs negotiated at the plea stage.

Complex Concepts Simplified

Barker test: A balancing test with four factors (delay, reasons, assertion, prejudice). No single factor is dispositive, but prejudice is often decisive.
What counts as prejudice under the Speedy Trial Clause: Harms suffered before conviction—especially impairment of the defense at trial. Anxiety must be particularized. Pretrial incarceration must be “oppressive,” not inherent or attributable to a separate sovereign’s sentence.
Betterman’s boundary: The Sixth Amendment speedy trial right ends at conviction or guilty plea; sentencing is not covered.
§ 5G1.3(b) concurrency: Applies when another undischarged term arose from relevant conduct to the federal offense. It directs how to structure the sentence (e.g., concurrent time), not how to calculate the guideline range.
§ 5K2.6 upward departure: Authorizes increased punishment when a weapon is used, especially discharged, in connection with the offense conduct.
Appeal waivers: Contract-like provisions in plea agreements limiting appellate rights. Enforced unless outside scope, unknowing/involuntary, or enforcement would cause a miscarriage of justice focused on the waiver’s legality.

Practice Pointers

Document trial-focused prejudice early: If delay risks trial fairness, preserve specifics—witness unavailability, memory degradation, lost physical evidence, or investigative impediments.
Attribute custody properly: If the defendant is held on a state sentence, oppressive pretrial detention for federal speedy trial purposes will be difficult to show unless added federal detention is independently caused and oppressive.
Concurrency timing: To invoke § 5G1.3(b), ensure “relevant conduct” connections are well supported, and raise concurrency while the state term remains undischarged. If timing is lost, pursue equivalent credit through an adjustment or variance with clear findings.
Plea negotiations: Carve out targeted appellate rights if guideline disputes (e.g., § 5K2.6 applicability) may be contested. Otherwise, expect waivers to be enforced.
COVID-era delays: To contest reason-for-delay, identify concrete post-restriction lags and show that substantive steps could realistically have occurred notwithstanding pandemic constraints.

Conclusion

United States v. Gutierrez meaningfully clarifies the Tenth Circuit’s Sixth Amendment jurisprudence: sentencing-stage consequences—even if allegedly caused by pretrial delay—do not constitute Barker prejudice because the Speedy Trial Clause protects only the preconviction phase. The panel’s analysis, rooted in Betterman’s textual and historical account, keeps the prejudice inquiry squarely focused on harms to the presumptively innocent and to the fairness of trial proceedings.

Equally, the decision fortifies the Circuit’s steadfast enforcement of plea-based appellate waivers. The “miscarriage of justice” safety valve remains narrow and directed at the waiver’s lawfulness, not at claimed errors in the sentence itself. Together, these holdings will shape speedy-trial litigation in the wake of pandemic-era delays, guide strategic use of § 5G1.3(b), and underscore the importance of carefully negotiated plea carve-outs for sentencing issues.