IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-10623

UNITED STATES OF AMERICA, 

 Plaintiff – Appellee,

v.

KENNY WASHINGTON, 

 Defendant – Appellant.

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:02-CR-287-1

Before DAVIS, ELROD, and HAYNES, Circuit Judges.

PER CURIAM:*

After we vacated Kenny Washington’s sentence, eight years elapsed 

before the district court re-sentenced him. During those eight years, 

Washington served his entire sentence of incarceration and completed a term 

of supervised release. All that remains of his original sentence is a restitution 

obligation. Because the extraordinary delay between remand and re-

 

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

September 24, 2015

Lyle W. Cayce

Clerk

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sentencing violated Washington’s Sixth Amendment rights, Washington is 

entitled to vacatur of the unpaid portion of his restitution obligation.

I.

In 2003, a district court sentenced Washington to forty-six months of 

imprisonment and three years of supervised release for conspiracy to commit 

bank theft. Pursuant to the Mandatory Victims Restitution Act (MVRA), the 

district court also ordered restitution, to be paid jointly and severally by the 

co-conspirators. We affirmed. United States v. Washington, 95 F. App’x 701 

(5th Cir. 2004). In 2005, the Supreme Court vacated our judgment and 

remanded for further consideration in light of United States v. Booker, 543 U.S. 

220 (2005). Washington v. United States, 543 U.S. 1102 (2005). After we 

received supplemental briefing addressing Booker, we determined that the 

government failed to show that the district court would have imposed the same 

sentence absent the sentencing error, and we accordingly vacated 

Washington’s sentence and remanded to the district court for re-sentencing. 

United States v. Washington, 158 F. App’x 528 (5th Cir. 2005). However, 

Washington’s attorney did not advise Washington that his sentence had been 

vacated and, due to a “clerical oversight,” the district court did not re-sentence 

Washington. Instead, Washington completed his original forty-six-month 

sentence and was released from custody to begin the three-year term of 

supervised release that had been imposed in the original sentencing 

proceeding. Washington completed his supervised release and made payments 

of $9,517.35 in partial satisfaction of the restitution order.1

In April 2013, Washington finally learned that his sentence had been 

vacated. Shortly thereafter, in June 2013, Washington filed a pro se “motion 

to amend restitution order,” in which Washington asked the district court to 

 

1 Washington has not asked for this money to be returned to him.

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“quash” the restitution order based on “the fact that [he] was left defectively 

unsentenced.” In response to Washington’s motion, the district court entered 

an order explaining that “[t]hrough a clerical oversight, the court did not 

resentence Defendant Washington as ordered by the appellate court.” The

district court instructed a magistrate judge to appoint defense counsel and 

requested briefing on whether the delay in re-sentencing raised issues of 

“prejudice and abuse of discretion.” In January 2014, Washington, now 

represented by counsel, filed a motion to dismiss the indictment based on 

violation of his Sixth Amendment right to a speedy trial, or, alternatively, his 

Fifth Amendment right to due process of law.

The district court denied Washington’s pro se motion to amend the 

restitution order and his counseled motion to dismiss the indictment. The 

district court then held a re-sentencing hearing in May 2014—more than eight 

years after we vacated Washington’s sentence. At the re-sentencing hearing, 

the district court rejected Washington’s alternative argument that the MVRA 

was unconstitutional, ruling that the mandate rule precluded reconsideration 

of the restitution order and, in the alternative, that the MVRA was 

constitutional. The district court then re-imposed the same 46-month sentence 

Washington had previously received, with credit for time served, re-imposed 

the three-year term of supervised release, which was immediately discharged, 

and re-imposed the restitution, with credit for the amounts previously paid. 

The practical effect of the district court’s judgment was that Washington 

remained responsible, jointly and severally with his co-conspirators, for the 

amount remaining on the restitution award. Washington timely appealed.

II.

The Sixth Amendment affords criminal defendants “the right to a 

speedy . . . trial.” U.S. Const. amend. VI. Although many cases implicating 

the Sixth Amendment’s Speedy Trial Clause arise in the context of a delay 

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before trial, we have held that “[t]he constitutionally guaranteed right to a 

speedy trial [also] applies to sentencing.”2 United States v. Abou-Kassem, 78 

F.3d 161, 167 (5th Cir. 1996); see United States v. Campbell, 531 F.2d 1333, 

1335 (5th Cir. 1976). Accordingly, we have granted relief to a defendant who 

“has demonstrated extreme and unreasonable delay in sentencing, and has 

demonstrated that he has been prejudiced by the delay.” Juarez-Casares v. 

United States, 496 F.2d 190, 193 (5th Cir. 1974). We review the district court’s 

conclusions of law de novo and its underlying factual findings for clear error. 

United States v. Molina-Solorio, 577 F.3d 300, 303–04 (5th Cir. 2009).

We evaluate speedy trial claims under the four-factor framework 

established in Barker v. Wingo, 407 U.S. 514 (1972). Campbell, 531 F.2d at 

1335. The four factors are: (1) length of delay; (2) the reason for the delay; (3) 

the defendant’s diligence in asserting his right; and (4) the prejudice to the 

defendant. Barker, 407 U.S. at 530. None of these factors is either necessary 

or sufficient; rather, “they are related factors and must be considered together 

with such other circumstances as may be relevant.” Id. at 533. Indeed, “[a]

defendant need not necessarily show affirmative prejudice or any particular 

one of these factors to justify a finding by the court that there has been a denial 

of his right to a speedy trial.” Campbell, 531 F.2d at 1335. Moreover, at least 

in the context of a delay before trial, a rebuttable presumption of prejudice 

arises if “the first three factors weigh ‘heavily’ in the defendant’s favor.” United 

 

2 “Whether sentencing proceedings are within the ambit of the Speedy Trial Clause is 

a question that has not been resolved by the Supreme Court.” United States v. Ray, 578 F.3d 

184, 191–92 (2d Cir. 2009). In Pollard v. United States, the Supreme Court “assume[d]

arguendo that sentence is part of the trial for purposes of the Sixth Amendment,” but then 

denied the petitioner’s claim on the merits. 352 U.S. 354, 361 (1957). The circuits are split 

on the question. Compare, e.g., Burkett v. Cunningham, 826 F.2d 1208, 1220 (3d Cir. 1987)

(holding that the Speedy Trial Clause of the Sixth Amendment protects the right to speedy 

sentencing), with Ray, 578 F.3d at 199 (holding that the Speedy Trial Clause of the Sixth 

Amendment does not apply to sentencing proceedings).

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States v. Hernandez, 457 F.3d 416, 421 (5th Cir. 2006); see also Doggett v. 

United States, 505 U.S. 647, 655 (1992) (“[W]e generally have to recognize that 

excessive delay presumptively compromises the reliability of a trial in ways 

that neither party can prove or, for that matter, identify.”); id. at 655–58. 

We have no trouble concluding that Washington’s Sixth Amendment 

rights were violated. Washington endured an eight-year delay between the 

time we vacated his sentence and the time the district court re-sentenced him. 

The Supreme Court has referred to an eight-year delay as “extraordinary,” 

Doggett v. United States, 505 U.S. 647, 658 (1992), and we have done the same 

for a delay of five years, see United States v. Cardona, 302 F.3d 494, 497 (5th 

Cir. 2002). Washington was not responsible for the “clerical oversight” that 

caused the delay, and Washington acted promptly upon learning that his rights 

may have been violated. In circumstances identical to these—albeit in the 

context of a delay before trial—the Supreme Court presumed prejudice and 

granted relief to the defendant. See Doggett, 505 U.S. at 658 (“When the 

Government’s negligence thus causes delay [of eight years], and when the 

presumption of prejudice, albeit unspecified, is neither extenuated, as by the 

defendant’s acquiescence, nor persuasively rebutted, the defendant is entitled 

to relief.” (internal citations and footnotes omitted)). 

We need not, and do not, explore whether the presumption of prejudice 

applies exactly the same way in the context of a delay before sentencing as it 

does in the context of a delay before trial. Indeed, the presumption may not 

arise as readily in the sentencing context, or perhaps might be more easily 

rebutted. See United States v. Sanders, 452 F.3d 572, 580 (6th Cir. 2006) 

(“[W]hen all that remains of a case is the imposition of a sentence, the danger 

of losing witnesses or other evidence needed to mount an adequate defense is 

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minimized, if not eliminated completely.”).3 However, we apply the 

presumption here, for two reasons. The first reason is the extreme delay in 

this case—eight years simply is beyond the pale. The second reason is that, at 

the time of re-sentencing, Washington already had served his entire forty-sixmonth sentence and his term of supervised release. The delay in this case thus 

deprived the district court of the opportunity to conduct a meaningful de novo

re-sentencing proceeding, and it deprived Washington of any incentive to offer 

arguments in support of a lesser term of incarceration or supervised release. 

Washington’s completion of his sentence thus differentiates this case from 

others in which defendants complained of long sentencing delays. See, e.g., 

United States v. Ray, 578 F.3d 184 (2d Cir. 2009) (defendant did not serve any 

of her sentence during fifteen-year delay before re-sentencing); Abou-Kassem, 

78 F.3d 161 (defendant had served less than ten years of a sixty-five year 

sentence). Where, as here, a defendant serves his entire term of incarceration 

and supervised release (i.e., the portions of the sentence over which the district 

court has discretion) before the government seeks to re-sentence him, we 

cannot credibly retrodict what would have happened in a timely proceeding. 

Cf. United States v. Howard, 577 F.2d 269, 271 (5th Cir. 1978) (“He suggests 

that he was prejudiced by receiving a harsher sentence than he otherwise 

would have. It is of course impossible to probe the truth of this suggestion.”).4

 

3 Not all danger of losing witnesses or other evidence is eliminated in the context of 

re-sentencing. For example, after a long delay, a defendant may be unable to locate evidence 

of, or witnesses to testify about, mitigating circumstances like childhood abuse.

4 We do not, of course, suggest that the district court was disingenuous in conducting 

the re-sentencing hearing. To the contrary, the record reflects that the district court 

conducted a thorough and thoughtful hearing. No amount of probity and care, however, can 

overcome the fact that Washington had already served his entire term of incarceration and 

supervised release, thereby altering irrevocably the circumstances under which the resentencing hearing took place.

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In light of the extreme delay, Washington’s lack of fault in causing that 

delay, and Washington’s completion of most of his sentence, Washington was 

presumptively prejudiced. The government has not rebutted the presumption 

of prejudice. Cf. Doggett, 505 U.S. at 658 n.4 (“While the Government ably 

counters Doggett’s efforts to demonstrate particularized trial prejudice, it has 

not, and probably could not have, affirmatively proved that the delay left his 

ability to defend himself unimpaired.”). Accordingly, we hold that Washington 

is entitled to relief.

In the context of unconstitutional delays before trial, the proper remedy 

is dismissal of the indictment. Barker, 407 U.S. at 521. Analogously, in the 

context of unconstitutional delays before sentencing, “[t]he proper remedy . . .

is to vacate the sentence.” Juarez-Casares, 496 F.2d at 193. Indeed, at oral 

argument, Washington conceded that he is not entitled to dismissal of the 

indictment or reversal of his conviction. Under the circumstances of this case, 

the only practical relief we can grant Washington is to vacate the unpaid 

portion of his restitution obligation. It is so ordered. Cf. United States v. Jones, 

744 F.3d 1362 (D.C. Cir. 2014) (holding that “twelve- and fifteen-month 

reductions that [defendants] received were adequate remedies for any speedy 

sentencing violation they may have suffered”). 

III.

Washington also argues that the restitution award should be vacated 

because the MVRA is unconstitutional under Apprendi v. New Jersey, 530 U.S. 

466 (2000), and its progeny. He claims that the MVRA unconstitutionally 

permits the district court to make “factual findings that subject the defendant 

to a greater range of punishment than that warranted by the jury’s return of a 

verdict of guilty.” This argument is moot in light of our determination that the 

delay of Washington’s re-sentencing violated his Sixth Amendment rights. In

any event, we have previously held that the MVRA is constitutional. See 

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United States v. Rosbottom, 763 F.3d 408, 420 (5th Cir. 2014); United States v. 

Read, 710 F.3d 219, 231 (5th Cir. 2012). Washington requests that we take his

case en banc to re-consider our precedent, but doing so is unnecessary to 

resolve this appeal.

VACATED IN PART.

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HAYNES, Circuit Judge, dissenting:

I respectfully dissent from the judgment of the court vacating the 

remaining portion of Washington’s restitution award based upon a “speedy 

trial” violation.1 Although the circuits are split on the question of whether 

there is a Sixth Amendment right to “speedy sentencing,”2 I agree that our 

Circuit’s binding precedent has applied a speedy-trial-type analysis to the 

issue of delayed sentencing.3 I also agree that the remedy for a speedy trial 

violation in the sentencing context is the vacatur of the remaining sentence (as 

opposed to dismissal of the indictment). I disagree, however, with the majority 

opinion’s imposition (unsupported by relevant precedent) of an essentially 

irrebuttable presumption of prejudice due solely to the passage of time and 

Washington’s service of his original sentence of imprisonment and supervised 

release. Our case law does not support this outcome and the facts of this case 

negate the conclusion that Washington was prejudiced. Accordingly, I 

respectfully dissent.

 

1 I agree that we are bound by circuit precedent on the issue of the constitutionality 

of the MVRA, such that relief on this ground is not warranted. 

2 Washington has also argued that he has a Fifth Amendment due process right to 

prompt sentencing, but the analysis of the two arguments has been treated similarly in the 

briefing. I conclude that he has not made any arguments that would warrant relief under 

the Fifth Amendment for the same reasons I give under the Sixth Amendment analysis.

3 Were we writing on a clean slate, we would need to take a hard look at the issue of 

whether the Sixth Amendment applies to a delay in resentencing, particularly in light of the 

majority opinion here. Cases continue to raise this issue and the related due process issue to 

the Supreme Court. See, e.g., Montana v. Betterman, 342 P.3d 971, 981 (Mont. 2015) (holding 

that the Fourteenth Amendment requires prompt sentencing but denying relief because the 

defendant was not prejudiced by the delay), petition for cert. filed, (U.S. June 12, 2015) (No. 

14-1457). Perhaps one of these cases will provide the clarity currently lacking in the law of 

the various circuits (and state highest courts) on this issue. As we are bound by our 

precedent, however, I do not further address this predicate question here.

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Our first sentencing delay case after Barker v. Wingo4 did not apply those 

factors, so it is unclear whether later cases applying these factors are faithful 

to our precedent. Compare Juarez-Casares v. United States, 496 F.2d 190, 

191–93 (5th Cir. 1974) (not citing or discussing Barker), with United States v. 

Howard, 577 F.2d 269, 271 (5th Cir. 1978) (applying the Barker factors). 

However, even in a case applying the Barker factors to sentencing delays, we 

recognized that those factors arose in the very different context of pre-trial 

delays and that Barker’s “analysis is directed at different concerns than are 

present in this case.” Howard, 577 F.2d at 270–71 (denying relief because the 

possibility of prejudice was “only speculative”). 

Even assuming that the Barker factors are appropriately considered in 

this context, it is inappropriate to import wholesale to the sentencing context 

the presumption of prejudice line of cases arising from pre-trial delay 

situations. When there are unreasonable pre-trial delays, a presumption of 

prejudice is necessary because such delays impact a highly dynamic process, 

often involving juries, relevant witnesses, and evidence. These delays can also 

result in “oppressive pretrial incarceration, impairment of defense and 

anxiety.” Id. at 270. However, a “[s]entencing delay typically risks only the 

possible prejudice of anxiety,” id., a circumstance noticeably absent here 

because Washington was unaware of the delay in his resentencing for the 

duration of his incarceration and was promptly resentenced once the error 

came to light. A presumption of prejudice due to an unreasonable delay in 

resentencing is further unwarranted where, as in this case, the same judge 

who conducted the original sentencing also conducted the resentencing and 

 

4 407 U.S. 514 (1972).

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assessed the same set of facts. In other words, the risk of prejudice as a result 

of lost witnesses or other evidence is nonexistent here. 

In addition to being unnecessary, the presumption of prejudice asserted 

here is contrary to our precedents. Our first case addressing “speedy 

sentencing” (decided a few months before Barker) was United States v. James, 

459 F.2d 443 (5th Cir. 1972). There, we found that the three-year delay 

between conviction and final sentencing was “unreasonable” under thenexisting law (18 U.S.C. § 4208) requiring prompt parole determinations. Id. at 

444. Despite the “unreasonable delay,” we granted no relief to the defendant 

because his claims of prejudice were “purely hypothetical.” Id. at 444–45. 

Thus, unreasonable delay alone was insufficient to create any presumption of 

prejudice. 

Thereafter, in United States v. Campbell, 531 F.2d 1333, 1335 (5th Cir. 

1976), we applied the Barker factors, but we did not presume prejudice despite 

a “clearly unreasonable” six-year delay between conviction and sentencing. As 

in the present case, we further concluded that the cause of the delay was the 

government’s “benign neglect” and thus was not attributable to any fault of the 

defendant. Id. We likewise determined that the defendant’s “failure . . . to 

assert his right” during the delay did not “carry much weight” in the analysis. 

Id. Despite factors weighing in favor of the defendant, we did not proceed to 

presume prejudice. Instead, we remanded to the trial court to decide whether 

the “allegations of prejudice were supported by any evidence.” Id. at 1336. 

The parties have not cited, and I have not found, a single Fifth Circuit 

case since the 1970s vacating a sentence based upon a delay in resentencing. 

The sheer lack of supporting precedent is reason enough to question the 

majority opinion’s determination. Indeed, until now, the only Fifth Circuit 

case cited or located in which vacatur occurred is Juarez-Casares, which 

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involved an original sentencing (not a resentencing). 496 F.2d at 191. We 

announced the standard there as follows: “If there has been an unreasonable 

delay, and if that delay results in prejudice to the defendant, then a violation 

has occurred. Naturally, the burden is on the defendant to show prejudice.” Id.

at 192 (emphasis added). We concluded that the burden was satisfied because 

the district court expressly stated during final sentencing that it was 

increasing the punishment due to other unrelated offenses the defendant 

committed during the delay. Id. at 192–93. We did not presume prejudice, we 

found actual prejudice. By contrast, the exact opposite happened here: the 

district court expressly stated it would not take into consideration 

Washington’s separate criminal conviction that occurred during the delay. 

The facts of this case thus provide no support for the majority opinion. 

Even under the Barker factors, the only factor “heavily favoring” Washington’s 

argument is the very long delay in resentencing. The district court found that 

the delay was caused by a clerical oversight (i.e., it was not intentional); this 

finding is unchallenged, and, therefore, entitled to deference. See United 

States v. Duhon, 541 F.3d 391, 396 (5th Cir. 2008). While a clerical oversight 

is evidence of neglect on the part of the government, it is not a factor that 

“weigh[s] heavily” in Washington’s favor. United States v. Hernandez, 457 F.3d 

416, 421 (5th Cir. 2006). While Washington did act promptly once he learned 

of his vacated sentence, his diligence is rather questionable, in my view, given 

that by his own admission, he never inquired as to the result of his own appeal. 

Thus, this factor weighs only slightly (not heavily) in Washington’s favor. 

Washington’s case is similar to Campbell, discussed above. See 

Campbell, 531 F.2d at 1336. Notably, we did not presume prejudice in 

Campbell, despite the long delay, negligence of the government and absence of 

fault by the defendant, and we should not do so here. Id. Simply stated, 

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presuming prejudice in a resentencing delay context would be unprecedented 

in the Fifth Circuit.

If there is no presumption of prejudice, Washington has utterly failed to 

show that he was actually prejudiced by the delay in resentencing. 

Washington originally argued that he would be prejudiced by the intervening 

event of a 2011 conviction, but the district court expressly stated that it would 

not consider that intervening event as part of the resentencing. Implicit in the 

majority opinion is the idea that the district court could not fairly conduct a 

legitimate resentencing because it would be influenced by the fact that 

Washington had already served the previous sentence. I respectfully disagree 

with this implication. The district court, once advised of the situation, 

appointed counsel for Washington and considered Washington’s briefing and 

evidence, after which it ruled that the delay did not prejudice Washington. 

Thereafter, the court conducted a full resentencing and carefully and 

thoroughly addressed the sentencing factors. Washington’s guidelines range 

was exactly the same as before (46–57 months) and the district court concluded 

that a within-guidelines sentence was appropriate under the 18 U.S.C. 

§ 3553(a) factors. While the guidelines are now advisory, they remain an 

important guidepost such that a guidelines sentence is entitled to a 

presumption of reasonableness on appeal. Rita v. United States, 551 U.S. 338, 

341 (2007); United States v. Wilcox, 631 F.3d 740, 757 (5th Cir. 2011). The 

district court’s findings on resentencing are unassailed by either Washington 

or the majority opinion and the within-guidelines sentence is in keeping with 

a countless number of sentences issued every day. 

Where is the prejudice in all this? Although the majority opinion 

correctly states that factual findings are subject to clear error review, it gives 

no deference to the district court’s findings on either the resentencing process 

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or the prejudice issue. Washington argues that the delay prevented him from 

making arguments for a below-guidelines sentence or a lessened supervised 

release term, but conspicuously fails to articulate any such hypothetical 

argument. Why then does the majority opinion fail to credit the district court’s 

finding that 46 months was a proper sentence of imprisonment? Why does the 

majority opinion assume the district court in a timely resentencing would have 

given Washington a lower sentence, despite not one shred of evidence to 

support that assumption? We routinely believe the district court when it 

makes findings bearing upon the effect of its ruling in the sentencing context. 

For example, we regularly credit a district court’s finding that it would have 

imposed the same sentence even if it miscalculated the sentencing guidelines 

range. See Duhon, 541 F.3d at 396 (5th Cir. 2008).5 We also credit the district 

judge’s determination of how a factor would have influenced that judge. United 

States v. Brito, 601 F. App’x 267, 273 (5th Cir. 2015) (determining that a 

district court’s finding of no prejudice due to allegedly ineffective counsel 

during sentencing was not clearly erroneous). Why not believe the district 

court here? 

In sum, no binding precedent supports the presumption of prejudice 

applied here, and Washington has entirely failed to show actual prejudice. 

Even if prejudice were presumed, I further disagree with the majority opinion 

that the Government has failed to rebut that presumption. The record shows 

that Washington got (and served) the same sentence he would have received 

had the resentencing occurred eight years ago—there is simply no prejudice, 

presumed or otherwise. As such, vacating the remaining restitution award, as 

 

5 See also United States v. Ramos, 739 F.3d 250, 253–54 (5th Cir. 2014); United States 

v. Richardson, 676 F.3d 491, 512 (5th. Cir. 2012); United States v. Bonilla, 524 F.3d 647, 656 

(5th Cir. 2008). 

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to which there was no Booker6 error and no error now, merely punishes the 

financial institution (or its insurer) that was the innocent victim of 

Washington’s crimes. I would affirm the district court’s judgment in full. 

 

6 United States v. Booker, 543 U.S. 220 (2005).

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