Opinion

United States v. Kidd

  • 127 F.4th 982
Court
Court of Appeals for the Fifth Circuit
Filed
Feb 11, 2025
Status
Published
Nature of suit
Direct Criminal
Cited by
3 cases
Authority
More cited than 47.3%

The opinion

Case: 23-11265 Document: 87-1 Page: 1 Date Filed: 02/11/2025

United States Court of Appeals

for the Fifth Circuit United States Court of Appeals

____________ Fifth Circuit

FILED

No. 23-11265 February 11, 2025

____________ Lyle W. Cayce

Clerk

United States of America,

Plaintiff—Appellee,

versus

Carlos Ray Kidd,

Defendant—Appellant.

______________________________

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 5:05-CR-117-1

______________________________

Before Clement, Oldham, and Wilson, Circuit Judges.

Cory T. Wilson, Circuit Judge:

After being convicted in federal court in 2007 for sending threatening

communications, Carlos Ray Kidd was sentenced to 60 months’

imprisonment. On appeal, this court remanded for resentencing because the

district court had miscalculated the Sentencing Guidelines range. But the

resentencing hearing did not take place, and neither the Government nor

Kidd’s counsel alerted the district court to the oversight. Instead, Kidd

continued to serve unrelated state sentences under the mistaken impression

that his 2007 federal sentence remained valid. It was not until 2023, after

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No. 23-11265

Kidd’s attorney discovered the lapse, that the resentencing hearing belatedly

occurred.

Kidd now appeals the district court’s 2023 sentence, asserting that the

sixteen-year delay in resentencing was a violation of his due process rights

and contending that the district court erred in imposing his new sentence.

We affirm.

I.

In 2005, while serving a 10-year state sentence in Texas for aggravated

assault and burglary, Carlos Ray Kidd mailed two threatening letters: one to

a federal district judge in Lubbock, Texas, threatening to kill him, and

another to the district court clerk’s office in Lubbock, threatening to burn

down the courthouse and kill several court personnel. Kidd was subsequently

indicted by a federal grand jury in Lubbock for two counts of mailing

threatening communications in violation of 18 U.S.C. § 876(c), and one

count of threatening to damage by fire in violation of 18 U.S.C. § 844(e). In

January 2007, Kidd pled guilty to one count of mailing a threatening

communication.

The initial presentence report (PSR) recommended awarding Kidd a

three-level reduction in offense level for acceptance of responsibility. See

U.S.S.G. § 3E1.1 (2003). But the Government objected to the reduction

because Kidd had sent additional threatening letters to prosecutors in

Wisconsin and Kentucky after pleading guilty. A subsequent addendum to

the PSR agreed that Kidd would not qualify for the reduction if Kidd had

indeed sent those threatening letters.

In April 2007, the district court sentenced Kidd to 60 months’

imprisonment, to run consecutively to the 10-year state sentence that Kidd

was already serving. Mistakenly believing that the three-level reduction

would make no difference in the resulting Guidelines range, the district court

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overruled the Government’s objection without engaging its merits and

ostensibly awarded the reduction. Despite purporting to grant the reduction,

the district court erroneously imposed a sentence that reflected Kidd’s

original offense level.1

Kidd appealed the sentence as procedurally unreasonable. While

maintaining that Kidd should not receive the reduction for acceptance of

responsibility, the Government conceded that the district court had erred in

calculating the Guidelines range and moved to remand for resentencing. In

December 2007, this court granted the Government’s motion for remand

without explanation. United States v. Kidd, No. 07-10499 (5th Cir. Nov. 16,

2007) (order granting Government’s motion).

But the resentencing hearing did not take place. Instead, Kidd’s case

was essentially memory-holed while he remained in state prison. The district

court never set a resentencing hearing, and neither the Government nor

Kidd’s defense attorneys pressed the matter.2 Kidd also seems to have been

unaware that his case had been remanded and that he needed to be

resentenced.

Further muddling matters were Kidd’s subsequent state and federal

convictions. In 2008, a Texas court sentenced Kidd to ten years in prison for

a 2005 prison escape, to run consecutively to his previous state sentence.

And in 2012, Kidd received a five-year state sentence for harassment in a

_____________________

1

A three-level reduction in offense level resulted in a Guidelines range of 41 to 51

months. Without the reduction, and pursuant to a statutory cap, the range would have been

57 to 60 months. The district court erroneously believed the reduction made no difference:

Weighing the Government’s objection, the court asked, “Well, even if the [c]ourt agreed,

the statutory maximum is sixty months, so would that make a difference?” When the

Government incorrectly answered “[n]o,” the court awarded the reduction, believing “it

[was] not crucial to the matter.”

2

Even now, neither party can explain why Kidd’s case was forgotten.

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correctional facility. Both state sentences were ordered to be served

concurrently with his federal sentence—which, unbeknownst to the state

courts, had not been reimposed—and set to expire in 2022.

In 2014, Kidd also notched another federal conviction for mailing

threatening communications—this time in North Dakota. The district court

there sentenced him to 60 months in prison, to run concurrently with his

Texas state sentences, but consecutive to the 2007 Texas federal sentence

(i.e., for a total of ten years in federal custody). Of course, the North Dakota

sentence did not account for the fact that Kidd had never been resentenced

for his 2007 federal conviction.

In August 2021, Kidd was released on parole from state custody and

entered federal custody. It was only after he began serving federal time—in

April 2023, nearly sixteen years after this court’s remand for resentencing—

that his newly appointed attorney realized Kidd had never been resentenced

for his 2007 conviction. Counsel notified the district court, and the court set

a September 2023 resentencing hearing. The hearing was continued because

Kidd was hospitalized in September due to what he described as a suicide

attempt, and because Kidd’s attorney and a subsequently appointed attorney

both withdrew from representation due to conflicts with Kidd.

The long-delayed resentencing finally took place in December 2023.

The district court first denied Kidd’s motion to dismiss the underlying

charges for denial of due process. While the court expressed astonishment

at the unusual procedural history and delay in resentencing, it found that

“ultimately, there was no prejudice as a result,” because Kidd had been

imprisoned all along “serving time in multiple other sentences.” The district

court then resentenced Kidd to 60 months in prison, to run consecutively to

the North Dakota sentence. The court also weighed the merits of Kidd’s

request for a reduction of offense level for acceptance of responsibility—

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correcting the court’s original mistake—and denied it. See U.S.S.G. § 3E1.1

(2023). Kidd then noticed this appeal, raising both the delay in resentencing

and the propriety of the sentence itself.

While this appeal was pending, the North Dakota district court

amended its judgment, clarifying and confirming that the North Dakota

sentence should run concurrently with Kidd’s state sentences. With this

clarification, the Federal Bureau of Prisons (BOP) now calculates Kidd’s

release date to occur in March 2026, very close to the release date BOP

calculated prior to resentencing.3 For the benefit of any (understandably)

perplexed reader, the following diagram depicts the interplay between Kidd’s

federal and state sentences after the most recent clarifications:

II.

This court reviews constitutional questions de novo. United States v.

Perez-Macias, 335 F.3d 421, 425 (5th Cir. 2003). We “review the sentencing

court’s determination of acceptance of responsibility with even more

deference [than] is due under a clearly erroneous standard because the

sentencing judge is in a unique position to assess the defendant’s acceptance

_____________________

3

According to an addendum to the PSR submitted to the district court before the

2023 resentencing, BOP had projected a release date in February 2026 with good time

credit. Of course, this was before BOP knew Kidd needed to be resentenced. BOP had

determined that the North Dakota sentence would run concurrently with the state

sentences, while the 2007 sentence would run consecutively to the state sentences. BOP

made additional adjustments to Kidd’s sentence calculations while this appeal was

pending, but for mercy’s sake, we omit those details as they do not bear on our decision.

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of responsibility and true remorse.” United States v. Angeles-Mendoza, 407

F.3d 742, 753 (5th Cir. 2005). This court will affirm “unless the district

court’s denial of a reduction is ‘without foundation.’” United States v. Lord,

915 F.3d 1009, 1017 (5th Cir. 2019) (quoting United States v. Juarez-Duarte,

513 F.3d 204, 211 (5th Cir. 2008) (per curiam)). The substantive

reasonableness of the district court’s sentence is reviewed for abuse of

discretion. United States v. Gomez, 905 F.3d 347, 351 (5th Cir. 2018).

III.

Kidd argues on appeal that (A) the sixteen-year delay between remand

and resentencing effected a denial of due process, such that his indictment

should be dismissed. In the alternative, he contends (B) that the district court

erred by denying a three-level reduction of his offense level for acceptance of

responsibility and that the 60-month sentence is substantively unreasonable.

A.

In the past, parties before this court relied on the Sixth Amendment’s

guarantee of a speedy trial to support their sentencing-delay claims. See, e.g.,

United States v. Abou-Kassem, 78 F.3d 161, 167 (5th Cir. 1996) (“The

constitutionally guaranteed right to a speedy trial applies to sentencing.”).

This was not a universally accepted approach, with at least one other court

of appeals concluding “that the Speedy Trial Clause of the Sixth

Amendment . . . does not apply to sentencing proceedings.” United States v.

Ray, 578 F.3d 184, 198–99 (2d Cir. 2009). In 2016, the Supreme Court

resolved the question in Betterman v. Montana, holding that the Speedy Trial

Clause “does not apply to delayed sentencing.” 578 U.S. 437, 440–41 (2016).

Our past precedent to the contrary was thus abrogated by Betterman, and it is

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now settled that the Sixth Amendment’s speedy trial guarantee has no

currency in the sentencing context.4

Even so, the Supreme Court explained that “due process serves as a

backstop against exorbitant delay . . . [and] [a]fter conviction, a defendant’s

due process right to liberty, while diminished, is still present.” Id. at 448. By

virtue of the Due Process Clauses of the Fifth and Fourteenth Amendments,

defendants retain an interest in “fundamentally fair” sentencing proceedings.

Id. But because the petitioner in Betterman did not advance a due process

claim, the Court declined to answer how such a claim should be analyzed. Id.

And this court has likewise not yet articulated a framework for analyzing

sentencing delays under the Due Process Clause since Betterman.

Kidd asks us to apply the same balancing test that the Supreme Court

articulated for speedy-trial claims in Barker v. Wingo. 407 U.S. 514, 530

(1972). That test considers four factors: “Length of delay, the reason for the

delay, the defendant’s assertion of his right, and prejudice to the defendant.”

Id. Before Betterman, this court used the Barker factors when analyzing

sentencing-delay claims under the Sixth Amendment, see, e.g., Abou-Kassem,

78 F.3d at 167, but many of the concerns related to a delayed trial do not arise

in the sentencing-delay context. For example, harms caused by an

“unreasonable delay between formal accusation and trial” include

“oppressive pretrial incarceration, anxiety and concern of the accused, and

the possibility that the accused’s defense will be impaired by dimming

memories and loss of exculpatory evidence.” Doggett v. United States, 505

U.S. 647, 654 (1992) (cleaned up) (citing Barker, 407 U.S. at 532). But

_____________________

4

Kidd initially moved to dismiss for violation of his constitutional right to a speedy

trial. When the Government correctly pointed out that Betterman foreclosed Kidd’s Sixth

Amendment argument, Kidd instead asked that the district court assess the delay under

the Fifth Amendment’s Due Process Clause.

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between conviction and sentencing, “[t]here exists . . . no concern over

oppressive incarceration before trial, anxiety over public accusation before

trial, or any impairment [of] the petitioner’s ability to defend himself.” Ray,

578 F.3d at 197 (internal quotation marks omitted) (citing Brooks v. United

States, 423 F.2d 1149, 1152–53 (8th Cir. 1970)).

Betterman itself provides some direction. While declining to prejudge

how a sentencing-delay claim might fare couched as a due process claim, the

Supreme Court suggested that “[r]elevant considerations may include the

length of and reasons for delay, the defendant’s diligence in requesting

expeditious sentencing, and prejudice.” 578 U.S. at 448 n.12. These

considerations are not dissimilar from those that some courts of appeals had

utilized pre-Betterman based on United States v. Lovasco, in which the

Supreme Court examined undue delay before indictment as a due process

claim. 431 U.S. 783, 790 (1977); see, e.g., Ray, 578 F.3d at 199; United States

v. Sanders, 452 F.3d 572, 580 (6th Cir. 2006). Those courts crafted a

two-step test, weighing: (1) reasons for the delay and (2) prejudice to the

accused. See Ray, 578 F.3d at 199.

Though Barker, Betterman, and cases like Ray articulate a similar set

of considerations, we follow the Supreme Court’s guidance in Betterman and

analyze Kidd’s due process claim under the Court’s three suggested

considerations: (1) “length of and reasons for delay,” (2) “the defendant’s

diligence in requesting expeditious sentencing,” and (3) “prejudice.” 578

U.S. at 448 n.12. These factors best capture the concerns that arise in the

context of sentencing delay. By the same token, though this test facially

resembles the Barker factors, see 407 U.S. at 530 (“[l]ength of delay, the

reason for the delay, the defendant’s assertion of his right, and prejudice”),

analyzing a sentencing-delay claim through the lens of due process differs

from a Sixth Amendment inquiry.

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The most crucial difference is that “proof of prejudice is generally a

necessary but not sufficient element of a due process claim.” Lovasco, 431

U.S. at 790. And “[t]he law is well settled that it is actual prejudice, not

possible or presumed prejudice, which is required to support a due process

claim.” United States v. Beszborn, 21 F.3d 62, 66 (5th Cir. 1994); cf. Adams v.

City of Harahan, 95 F.4th 908, 913 (5th Cir.) (“The Fourteenth

Amendment’s Due Process Clause protects against deprivations of life,

liberty, or property; and those who seek to invoke its procedural protection

must establish that one of these interests is at stake.” (quoting Wilkinson v.

Austin, 545 U.S. 209, 221 (2005))), cert. denied, No. 24-102, 2024 WL

4427225 (U.S. Oct. 7, 2024) (mem.). On the other hand, a defendant’s

showing of prejudice does not automatically establish a due process violation.

“[T]he due process inquiry must consider the reasons for the delay as well as

the prejudice to the accused.” Lovasco, 431 U.S. at 790.

Mindful of these principles, we address Kidd’s due process claim

under Betterman’s suggested test.

1.

We start with the length of and reason for the delay. Of course, “[t]he

court must impose sentence without unnecessary delay.” Fed. R. Crim.

P. 32(b)(1). And the length of the delay here—sixteen years—is egregious.

But an inordinate delay in itself cannot show a due process violation. See Ray,

578 F.3d at 201 (“The delay of fifteen years between our order remanding

this case for resentencing and the time when [the defendant] was resentenced

is, without doubt, extraordinary—[but] that does not alone mandate [vacatur

of the sentence].”); cf. Barker, 407 U.S. at 523 (refusing to hold that the

defendant must be tried within a “specified time period”).

As for the reason for the delay, there is plenty of blame to go around.

The Government failed to notify the district court of the need promptly to

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schedule a resentencing hearing. Kidd’s lawyers also failed to request a

hearing, and “[t]o the extent [Kidd] seeks . . . to have [his] conviction

vacated and the indictment dismissed, [his] failure, or [his] attorney’s failure,

to seek more prompt sentencing weighs heavily against [him].” Ray, 578

F.3d at 200 (citing Vermont v. Brillon, 556 U.S. 81, 90–91 (2009)). Regardless,

the district court too remained unaware of the lapse, even after Kidd asked

for “clarification” of his sentence in 2012 and 2021.

Still, “the ultimate responsibility for such circumstances must rest

with the [G]overnment rather than with the defendant.” Brillon, 556 U.S. at

90 (quoting Barker, 407 U.S. at 531); see Ray, 578 F.3d at 200. Granted, there

are mitigating considerations that favor the Government: The delay was not

“an intentional measure in order to gain a technical advantage.” United

States v. Crouch, 84 F.3d 1497, 1508 (5th Cir. 1996) (quoting United States v.

Willis, 583 F.2d 203, 207 (5th Cir. 1978)). Rather, it was due to a “more

neutral reason such as negligence . . . [which] should be weighted less

heavily.” Barker, 407 U.S. at 531. And Kidd concedes fault for the delay that

occurred in 2023 due to his hospitalization and conflicts with his attorneys—

though that interval of a few months is a pittance of the sixteen-year lapse at

issue. On balance, this factor weighs in favor of Kidd.

2.

Our weighing of the second factor—the defendant’s diligence in

requesting expeditious sentencing—is somewhat hindered because Kidd was

apparently not aware of the need for resentencing. To his credit, Kidd

actively engaged with his federal sentence, asking on several occasions that

the district court set his 2007 sentence to run concurrently with his state

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sentences.5 Even then, Kidd’s unawareness, ostensibly caused by his lawyers’

failure to inform him of this court’s initial remand, does not excuse his failure

to request a hearing. To the extent this factor weighs against Kidd, we are

hesitant to weigh any negligence on the part of Kidd or his lawyers too heavily

in this instance.

3.

The third factor, prejudice to the defendant, decisively weighs against

Kidd. That is because he cannot plausibly show that he is worse off now than

he would have been had he been timely resentenced. This dooms his due

process claim. See Lovasco, 431 U.S. at 790; Beszborn, 21 F.3d at 66.

First, as the district court found, the resentencing delay did not result

in any “dead time,” a typical result of a lengthy pretrial incarceration. See

Barker, 407 U.S. at 532–33 (“The time spent in jail [during pretrial

incarceration] is simply dead time.”). Kidd thus suffered no loss in liberty.

He was in state custody for unrelated state sentences until 2021. Thereafter,

BOP gave Kidd credit for the time he served between his transfer to federal

custody in 2021 and the December 2023 resentencing hearing. And during

the resentencing hearing, the district judge even stated he would have

granted Kidd additional credit “had there been dead time present here[,] . . .

[but] [t]here wasn’t.” Kidd therefore never served any uncredited “dead

time” due to the delay, long as it was.

_____________________

5

In 2012, when his first state sentence expired, Kidd moved to be transferred to

federal custody to serve his federal sentence. The district court construed Kidd’s motion

as a request for relief under 28 U.S.C. § 2241 and denied his motion. In 2021, Kidd again

sought “Sentencing Clarification and Special Consideration,” asking for the 2007 federal

sentence to run concurrently with his ongoing state sentence. The district court construed

that request as a motion for compassionate release and denied it.

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Second, Kidd likely did not receive a longer federal sentence because

of the delay. In 2007, he was initially sentenced to 60 months. In 2023, the

district court resentenced him to 60 months. If there had been a timely

resentencing hearing, it seems apparent that Kidd would not have received a

shorter sentence. As discussed, the district court awarded an offense level

reduction for acceptance of responsibility during Kidd’s initial sentencing,

under the mistaken impression that the reduction made no difference in the

Guidelines range. This court remanded for the district court to rectify that

error. Had the district court engaged with the merits of the Government’s

objection to the offense level reduction, it likely would not have awarded the

reduction. See infra III.B.1. Instead, it is more likely that the district court,

which had initially sentenced Kidd to the statutory maximum, would have

adhered to that sentence after remand—just as the district court did, after

denying any reduction in offense level, in 2023.

Third, Kidd retained the incentive to challenge his sentence. A

defendant may lack such incentive if he has already served his sentence. See

United States v. Washington, 626 F. App’x 485, 488 (5th Cir. 2015) (per

curiam), as revised (Feb. 1, 2016) (“[A]t the time of re-sentencing, [the

defendant] already had served his entire forty-six-month sentence . . . . The

delay in this case thus . . . deprived [the defendant] of any incentive to offer

arguments in support of a lesser term of incarceration . . . .”). Because Kidd

had only served a portion of the 2007 federal sentence, he did not suffer the

kind of prejudice that this court observed in Washington. The district court

was also fully able to consider Kidd’s acceptance-of-responsibility argument

despite the delay. And the district court had the chance to decide whether

the newly imposed federal sentence would run consecutively or concurrently

with Kidd’s state sentences, determining that it would run consecutively.

Thus, Kidd had the same opportunity to litigate his new sentence that he

would have had if there had been a timely resentencing hearing.

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Kidd asserts that he suffered great anxiety due to the uncertainty

regarding the 2007 sentence. But the resentencing delay could not have been

the source of any anxiety because Kidd was unaware that he even needed to

be resentenced until April 2023. And given the number of prison sentences

that Kidd accumulated, it is unlikely that the 2007 federal sentence

specifically caused Kidd anxiety during his incarceration.

Distilled down, despite the egregiousness of the sixteen-year delay,

and affording the benefit of the doubt as to his diligence in requesting

sentencing modifications, Kidd’s due process claim fails because he is unable

to show “actual prejudice, . . . which is required to support a due process

claim.” Beszborn, 21 F.3d at 66.

B.

Because we conclude Kidd has suffered no cognizable due process

injury, we address his alternative challenges to his sentence, namely that the

district court: (1) should have awarded an offense level reduction for

acceptance of responsibility and (2) neglected to weigh relevant

considerations when it resentenced him to 60 months. Both arguments fail.

1.

The district court initially granted the acceptance-of-responsibility

reduction under U.S.S.G. § 3E1.1, but the court denied it at the resentencing

hearing. “[O]nce an issue is remanded for resentencing, all new matter

relevant to that issue appealed, reversed, and remanded, may be taken into

consideration by the resentencing court.” United States v. Carales-Villalta,

617 F.3d 342, 345 (5th Cir. 2010) (quoting United States v. Marmolejo, 139

F.3d 528, 530 (5th Cir. 1998)). Appealing his new sentence, Kidd must show

that the district court’s denial of a reduction for acceptance of responsibility

was “without foundation,” an even more deferential standard than our usual

review for clear error. Lord, 915 F.3d at 1017.

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Kidd argues that he clearly demonstrated acceptance of responsibility

by entering a guilty plea, admitting to the offense conduct, and admitting all

relevant conduct for which he was accountable. But he fails to show that the

district court’s denial of an offense level reduction was without foundation.

When the district court awarded the reduction in 2007, over the

Government’s objection and despite an addendum to the PSR

recommending denial, the court did so largely based on its mistaken

assumption that the reduction would not make a difference in the Guidelines

range. On remand, the district court weighed the merits of the issue,

considering Kidd’s arguments and the Government’s objection to the

reduction, and it denied relief. In particular, the court considered the fact

that Kidd mailed threatening letters to prosecutors in Wisconsin and

Kentucky in March 2007—after pleading guilty in this case. In doing so, the

district court faithfully followed the 2023 Sentencing Guidelines, which

includes “voluntary termination or withdrawal from criminal conduct or

associations” as an appropriate consideration in determining whether a

defendant qualifies for the reduction. U.S.S.G. § 3E1.1 cmt. n.1. Because

Kidd plainly did not cease the criminal conduct at issue (sending threatening

mails) after he pled guilty, the district court did not err in denying the offense

level reduction.

2.

Likewise, the district court did not abuse its discretion in weighing the

relevant factors to resentence Kidd to 60 months in prison. See U.S.S.G.

§ 1B1.4 (2023) (“In determining the sentence to impose within the

[G]uideline range . . . the court may consider, without limitation, any

information concerning the background, character and conduct of the

defendant . . . .”). “[C]ourts of appeals must review all sentences—whether

inside, just outside, or significantly outside the Guidelines range—under a

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deferential abuse-of-discretion standard.” Gall v. United States, 552 U.S. 38,

41 (2007). And this court “presume[s] sentences within or below the

calculated [G]uidelines range are reasonable.” United States v. Simpson, 796

F.3d 548, 557 (5th Cir. 2015). Kidd’s 60-month sentence on remand was

within the properly calculated Guidelines range—51 to 60 months. It is

therefore presumptively reasonable.

To rebut the presumption of reasonableness, Kidd must show that the

sentence “(1) does not account for a factor that should have received

significant weight, (2) gives significant weight to an irrelevant or improper

factor, or (3) represents a clear error of judgment in balancing the sentencing

factors.” Simpson, 796 F.3d at 558 (quoting United States v. Warren, 720 F.3d

321, 332 (5th Cir. 2013)). Further, “[i]f the sentencing judge exercises her

discretion to impose a sentence within a properly calculated Guideline

range . . . we will infer that the judge has considered all the factors for a fair

sentence set forth in the Guidelines.” United States v. Alvarado, 691 F.3d 592,

596 (5th Cir. 2012) (quoting United States v. Alonzo, 435 F.3d 551, 554 (5th

Cir. 2006)).

Kidd contends that the district court did not give enough weight to the

trauma he endured while imprisoned leading up to the 2005 offense of

conviction. Kidd explains that he did not send the threatening letters at issue

as a “get out of jail free card.” Rather, he maintains his crime was an act of

desperation resulting from the brutal rape and abuse he allegedly endured at

the hands of a prison guard and another inmate. He avers that he thought

that writing a threatening letter to a federal judge would get him transferred

to federal custody, where he believed he would be safer. The transcript from

the resentencing hearing, however, clearly shows that the district court took

into account the mitigating factors Kidd proffered.

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Kidd also argues that the district court did not consider the amount of

time that elapsed between the 2007 offense and the 2023 sentence. Because

his mailing of threatening communications occurred more than 20 years ago,

Kidd contends, a 60-month sentence is far longer than necessary to provide

just punishment for the offense and to protect the public. But since his 2007

conviction, Kidd has accrued additional state and federal sentences. And

during his incarceration, Kidd also exhibited numerous behavioral problems,

including “self-mutilation, two instances of inappropriate sexual conduct,

refusing to work, mail abuse, and assaulting a cellmate.” “[W]hen a

defendant’s sentence is set aside on appeal, the district court at resentencing

can (and in many cases, must) consider the defendant’s conduct and changes

in the Federal Sentencing Guidelines since the original sentencing.”

Concepcion v. United States, 597 U.S. 481, 486 (2022). Kidd fails to show that

the district court did not properly consider relevant factors when it

resentenced Kidd to 60 months—the same length as Kidd’s original sentence.

In short, we discern no abuse of discretion in the district court’s new

sentence.

IV.

Courts have an obligation promptly to sentence those who have been

convicted. See Fed. R. Crim. P. 32(b)(1). Here, a man’s fate—his

liberty—was in limbo for sixteen years because his case fell through the

cracks after remand from this court. As we have said, that delay was

egregious. But the sixteen-year delay in Kidd’s resentencing, given the facts

of this case, did not violate his due process rights because he suffered no

prejudice as a result of the delay. Otherwise, the new 60-month sentence

imposed by the district court was properly calculated and is substantively

reasonable. The district court’s judgment is accordingly

AFFIRMED.

16

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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