United States v. Kidd

In United States v. Kidd, 127 F.4th 982 (5th Cir. 2025), the Fifth Circuit affirmed Kidd’s 60-month prison sentence even though it was imposed 16 years after Kidd had prevailed in his first appeal. Despite that “egregious” delay, the court concluded that Kidd’s due process claim failed because he was unable to demonstrate “actual prejudice.”

Background: In 2007, Kidd received a 60-month prison sentence for sending threatening communications, but he appealed that decision and prevailed before the Fifth Circuit. The appellate court held that the district court had miscalculated the Sentencing Guidelines range, so it remanded the case for resentencing.

After that, nothing happened. The court, Government, and Kidd’s own lawyer all did nothing, and Kidd believed his original sentence remained valid. “Even now, neither party can explain why Kidd’s case was forgotten.” For 16 years, Kidd served unrelated state and federal sentences—he was convicted of prison escape and mailing additional threatening communications.

Finally in 2023, Kidd’s newly appointed attorney discovered that Kidd should have been resentenced in 2007, and Kidd was finally resentenced—again to 60 months.

Issue: Were Kidd’s due process rights violated by the 16-year delay? Held: No, because he could not demonstrate prejudice.

The Fifth Circuit applied a three-factor test described in Betterman v. Montana, 578 U.S. 437, 448 n.12 (2016). It considered (1) “length of and reasons for delay,” (2) “the defendant’s diligence in requesting expeditious sentencing,” and (3) “prejudice.” The court acknowledged that this test looks like the Sixth Amendment speedy-trial inquiry, but in a due process claim, “proof of [actual] prejudice is generally a necessary but not sufficient element” (quoting United States v. Lovasco, 431 U.S. 783, 790 (1977)).

First, for reason of delay, “there is plenty of blame to go around,” but “the ultimate responsibility for such circumstances must rest with the [G]overnment rather than with the defendant” (citation omitted). Nevertheless, the delay was not intentional.

Second, Kidd “was apparently not aware of the need for resentencing,” but “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 court’s credit, however, it was “hesitant to weigh any negligence on the part of Kidd or his lawyers too heavily in this instance.”

Third, the “third factor, prejudice to the defendant, decisively weighs against Kidd,” because he could not show any way in which he was worse off than had he been correctly resentenced in 2007. He suffered no loss in liberty because he was serving unrelated sentences anyway, and BOP retroactively credited Kidd for his time served in federal custody. Kidd also received a sentence no longer than he would have in 2007, and finally, Kidd’s anxiety could not have been due to the resentencing delay “because Kidd was unaware that he even needed to be resentenced until April 2023.”

In sum, the “delay was egregious,” but it was not a due process violation.