                        NONPRECEDENTIAL DISPOSITION
                To be cited only in accordance with Fed. R. App. P. 32.1



                United States Court of Appeals
                                For the Seventh Circuit
                                Chicago, Illinois 60604

                              Argued September 20, 2019
                              Decided December 3, 2019

                                        Before

                           DIANE P. WOOD, Chief Judge

                           DANIEL A. MANION, Circuit Judge

                           ILANA DIAMOND ROVNER, Circuit Judge

No. 19-1946

UNITED STATES OF AMERICA,                      Appeal from the United States District Court
     Plaintiff-Appellee,                       for the Northern District of Indiana,
                                               Hammond Division.
      v.
                                               No. 2:18-cr-00052-JTM-JEM-1
CRISTIAN MANUEL YUPA YUPA,
      Defendant-Appellant.                     James T. Moody, Judge.

                                      ORDER

        Cristian Yupa Yupa was born in Canar, Ecuador, and is a member of the
indigenous Kichwa tribe. He immigrated to the United States in 2000 to escape, he
alleges, gang recruitment. While in Ecuador, he began a sexual relationship with a
young girl. This relationship continued when the two came to the United States where,
when he was 25, and she was 14, he was arrested and pled guilty in the Circuit Court of
Cook County, Illinois, to the state crime of criminal sexual abuse of a minor. Following
his release from prison in 2004, the government deported him to Ecuador. He
subsequently re-entered the United States without permission, and on April 24, 2018, he
was detained while at a job site in Indiana. He was arrested on May 23, 2018, and
stipulated to pretrial detention.
No. 19-1946                                                                                    Page 2



       The government charged Yupa Yupa with one count of entering the United
States without permission, to which he pled guilty without a plea agreement, on July 20,
2018. Because this is a case about timing, we must thread through some of the other key
dates. The probation office filed its presentence investigation report on October 18,
2018. The government filed its sentencing memorandum on October 28, 2018, and Yupa
Yupa filed his sentencing memorandum on October 29, 2018. On November 21, 2018,
Yupa Yupa filed a motion to schedule a sentencing hearing. The court issued an order
on February 11, 2019, scheduling the sentencing hearing for May 10, 2019. In short, the
court held Yupa Yupa’s sentencing hearing a little less than ten months after he entered
his guilty plea and about twelve and a half months after his original detention.

        On February 25, 2019, Yupa Yupa filed a motion for discharge, arguing that the
delay in sentencing violated his rights under the Sixth Amendment, the Speedy Trial
Act, and the Due Process Clause of the Fifth Amendment.1 As a result, he asked the
court to dismiss the charges against him. The judge denied the motion the following
day, noting that the court had considered the sentencing options, that the May
sentencing date would not violate Yupa Yupa’s due process rights, and that he could
still argue for a below-guidelines sentence. R. 32 at 2–3.

       On May 10, 2019, the court sentenced Yupa Yupa to eighteen months’
imprisonment and two years of supervised release, if he was not deported, removed or
excluded from the United States. The United States Sentencing Guidelines suggested a
sentencing range of 15–21 months. We review legal questions de novo, including due
process challenges to sentencing decisions. United States v. Hollins, 498 F.3d 622, 629 (7th
Cir. 2007).
                                              II.

      Yupa Yupa argues that the ten-month delay between his guilty plea and
sentencing violated the Federal Rules of Criminal Procedure, his right to a speedy trial
pursuant to the Sixth Amendment, and his right to due process of law under the Fifth
Amendment. We take each of these in turn.

       Because the Supreme Court has declared that the Speedy Trial Clause of the
Sixth Amendment “does not apply to delayed sentencing” we can dispense readily with
this aspect of Yupa Yupa’s argument. Betterman v. Montana, 136 S. Ct. 1609, 1613 (2016).
After conviction, the primary protections against unjust delay in criminal proceedings


1Yupa Yupa appears to have abandoned any claim under the Speedy Trial Act, 18 U.S.C. § 3161 et. seq.,
in his appellate brief.
No. 19-1946                                                                                        Page 3



come not from the Sixth Amendment, but rather from the Due Process Clause and
Federal Rule of Criminal Procedure 32(b)(1). As the Supreme Court noted when
discussing sentencing delays:

                The primary safeguard comes from statutes and rules. The
                federal rule on point directs the court to “impose sentence
                without unnecessary delay.” Fed. Rule Crim. Proc. 32(b)(1) …
                After conviction, a defendant’s due process right to liberty,
                while diminished, is still present. He retains an interest in a
                sentencing proceeding that is fundamentally fair.

Betterman, 136 S. Ct. at 1617. See also United States v. Lovasco, 431 U.S. 783, 789 (1977)
(Noting that during times of criminal proceedings in which the Sixth Amendment
“speedy trial” rights are not at play, “the Due Process Clause has a limited role to play
in protecting against oppressive delay”). And, in practice, these two vague notions of
avoiding unnecessary delay and fundamental fairness merge and can be addressed as
one. What, after all, constitutes “unnecessary delay” as described in the Federal Rules?
We think this can be best answered by looking at the construct of fairness inherent in
the Due Process Clause.

        The Due Process Clause protects a defendant’s most fundamental rights to
justice. Lovasco, 431 U.S. at 790. To establish a due process claim, a defendant must
demonstrate, at a minimum, proof of prejudice. Id. “[P]roof of actual prejudice makes a
due process claim concrete and ripe for adjudication, not that it makes the claim
automatically valid.” Id. at 789. A court must also consider the reason for the delay and
whether it is justified. Id. at 790.

        The Supreme Court majority in Betterman did not describe how to evaluate a due
process challenge to a sentencing delay, but in her concurrence, Justice Sotomayor
noted that the majority of circuit courts use a four-factor test to determine whether a
sentencing delay runs afoul of due process—a test that comes from Barker v. Wingo, 407
U.S. 514, 530 (1972). Betterman, 136 S. Ct. at 1619 (Sotomayor, J., concurring). Indeed,
that is the test our circuit has been using for some time. See United States v. Rothrock, 20
F.3d 709, 712 (7th Cir. 1994). Under that test, a court would look at the length of the
delay, the reasons for the delay, the defendant’s assertion of his right, and prejudice to
the defendant. Barker, 407 U.S. at 530.2 But whether we use the four-factor Barker test or


2At least one other circuit, relying on the concurrence in Betterman, has determined that the Barker test
remains the choice for evaluating undue delay in sentencing post-Betterman. See United States v. James, 712
No. 19-1946                                                                                          Page 4



more general principles of due process, we come, in the end, to the same conclusion.
General concepts of due process require that a defendant demonstrate prejudice from
the delay. Lovasco, 431 U.S. at 789. As we explained in United States v. Henderson, 337
F.3d 914, 920 (7th Cir. 2003):

                A defendant must first show more than mere speculative
                harm but instead must establish prejudice with facts that are
                specific, concrete, and supported by evidence. If a defendant
                makes the proper showing, the burden shifts to the
                government to demonstrate that the “purpose of the delay
                was not to gain a tactical advantage over the defendant or for
                some other impermissible reason.” The government’s reasons
                are then balanced against the prejudice to a defendant to
                determine whether a due process violation occurred.

Id. (internal citations omitted). In other words, no matter how we evaluate Yupa Yupa’s
claim of undue delay in sentencing, it fails at the same step—as he has not made a
sufficient showing of prejudice.

       Yupa Yupa claims that scheduling a sentencing hearing almost twelve months
after his arrest (ten months after his plea), eliminated the possibility that he could
receive a below-Guidelines sentence. With his recommended Guidelines range of 15–21
months, however, the district court could have sentenced him to time served or thirteen
or fourteen months, and thus Yupa Yupa had the opportunity to receive a below-
Guidelines sentence. The district court also could have sentenced Yupa Yupa to time
served and reduced his supervised release to account for an even lower sentence. See
United States v. Johnson, 529 U.S. 53, 60 (2000) (noting that 18 U.S.C. § 3583 provides
options for relief from conditions of supervised release when an individual is
incarcerated beyond the proper expiration of his prison sentence).
       Given all of these choices, however, at the time of sentencing the district court
chose a mid-Guidelines-range sentence of eighteen months. The court did not choose a
below-Guidelines sentence, or to sentence Yupa Yupa to time served or even to the low


F. App’x 154, 161 (3d Cir. 2017) (noting that the circuit’s prior precedent of using Barker to evaluate undue
sentencing delay claims under the Due Process Clause survives Betterman); see also United States v.
Iluonokhalumhe, No. 18-2879, 2019 WL 4316876, at *1 (3d Cir. Aug. 21, 2019) (citing United States v.
Poellnitz, 372 F.3d 562, 570 (3d Cir. 2004)).
No. 19-1946                                                                         Page 5



end of the Guidelines. The district court sentenced him to six months longer than he
had already served. Yupa Yupa, therefore, was not prejudiced by the delay.

        Moreover, on the date that Yupa Yupa filed a motion requesting an earlier
sentencing hearing—November 21, 2018—the district court had before it the probation
office’s presentence investigation, the government’s sentencing memorandum, and
Yupa Yupa’s sentencing memorandum. Thus, the issues surrounding Yupa Yupa’s
sentencing had been fully briefed and presented to the court at the time it rejected the
request for an earlier sentencing hearing. The district court judge, in his order rejecting
the motion to dismiss the case, implied that had he determined from the sentencing
memoranda that Yupa Yupa was entitled to a sentence below twelve months, he would
not have scheduled the sentencing hearing for the date he did. In fact, the district court
indicated as much. See R. 32 at 2 (“[T]he sentence [the court] will impose impacts the
sentencing dates this court chooses.”). We are troubled by the notion that the court may
have set its sights on a sentence before the parties had the opportunity to present their
facts and arguments at the sentencing hearing. We have no evidence that this was the
case here but would admonish courts to avoid even the appearance of such a practice.
In any event, as we described above, at the conclusion of the sentencing hearing, the
judge rejected all below-Guidelines options that were available to him and instead
chose a mid-Guidelines sentence. Yupa Yupa, therefore, suffered no prejudice as the
result of the delay.

        In addition, some of the delay can be attributed to factors that are quite within
the norm for criminal proceedings. Although Yupa Yupa was arrested on May 23, 2018,
he did not enter a guilty plea until July 20, 2018. Moreover, the district court could not
have sentenced Yupa Yupa until the presentence investigation report and sentencing
memoranda had been filed with the court, that is, as of October 29, 2018 (not counting a
reply from the government that was filed on November 25, 2018). Although we cannot
say that such a delay from this date—approximately six and a half months—would
never be unreasonable, we cannot find that this delay—given the particular facts of the
case, the timeframes at issue, the Guidelines range, and the ultimate sentence—caused
any prejudice to Yupa Yupa.

       Yupa Yupa also argued that he was prejudiced because his hearing on his
asylum petition could not be held until he completed his sentence. Yupa Yupa,
however, has not explained how his delayed sentencing hearing date affected his ability
to receive asylum, or why the additional months he might be incarcerated awaiting his
asylum hearing were the result of prejudice from the delay in sentencing in this
No. 19-1946                                                                     Page 6



separate criminal matter. Nor has he explained any reasons why he was prejudiced by
his brief and generalized claim of “anxiety and concern.” Brief of Appellant at 6.

       The six-and-a-half-month delay between the filing of the sentencing memoranda and
the sentence (or the under-ten-month delay between the guilty plea and the sentencing) did
not prejudice Yupa Yupa and therefore did not violate his rights under the Due Process
Clause. The judgment of the district court is AFFIRMED.
