UNITED STATES of America, Plaintiff-Appellee, v. Lummie SANDERS, Defendant-Appellant, 452 F.3d 572

GIBBONS, J., delivered the opinion of the court, in which GRIFFIN, J., joined. MARTIN, J. (pp. 583-593), delivered a separate dissenting opinion. OPINION JULIA SMITH GIBBONS, Circuit Judge. The case before us originated in 1993, when defendant-appellant Lummie Sanders was convicted of two firearm offenses and sentenced to 37 months imprisonment. Seven years later, following two direct appeals and one appeal of a motion under 28 U.S.C. § 2255, this court determined that Sanders should be sentenced to the 180-month minimum mandated by the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(1).

By this time, however, Sanders had been released from custody because the 37-month sentence the district court imposed in granting the § 2255 motion, the same sentence imposed in Sanders’ first sentencing, had been completed. Four more years passed before the district court issued a warrant for Sanders’ arrest and imposed the longer sentence. Sanders claims that this delay violated his constitutional right to due process. As we find no due process violation, we affirm the sentence imposed by the district court. I.

Sanders was indicted for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) and for making a false statement in acquiring a firearm in violation of 18 U.S.C. § 922(a)(6). The jury found Sanders guilty on all counts, and the government requested the fifteen-year minimum sentence mandated by the ACCA, as Sanders had three previous convictions for violent felonies: (1) a 1968 conviction for robbery; (2) a 1972 conviction for assault with a dangerous weapon; and (3) a 1986 conviction for involuntary manslaughter.

Before sentencing, Sanders challenged the constitutionality of his 1968 and 1972 convictions. The district court ruled that the 1972 conviction was constitutionally infirm. This ruling made the ACCA inapplicable to Sanders and the court sentenced him to 37 months imprisonment in December 1993. On appeal, a panel of this court upheld the § 922 convictions but remanded for reconsideration of the sentence. United States v. Sanders, Nos. 93-4322 & 94-3031, 1994 WL 714377, at *3 (6th Cir. Dec.22, 1994) (per curiam). The court ruled that under Custis v.

United States, 511 U.S. 485, 114 S.Ct. 1732, 128 L.Ed.2d 517 (1994), the district court should have considered the 1972 assault conviction in its determination of whether to sentence under the ACCA; however, the court asked for a further ruling on whether the 1986 involuntary manslaughter conviction counted as a predicate felony under the ACCA. Id. at *2-3. On remand, the district court determined that involuntary manslaughter was a violent felony for the purposes of the ACCA, and thus, the statutory minimum sentence must be imposed.

After applying a Guidelines enhancement, the court sentenced Sanders to 188 months in prison. Sanders appealed, and a panel of this court agreed with the determination that the ACCA applied. United States v. Sanders, 97 F.3d 856, 860-61 (6th Cir.1996). The panel disagreed, however, with the district court’s ruling that it lacked authority to grant a downward departure under the Sentencing Guidelines, and the case was remanded once again for resentencing. Id. at 861-62. In July 1997, the district court resen-tenced Sanders to the minimum permitted by the ACCA — 180 months imprisonment.

Sanders then filed a motion to vacate under 28 U.S.C. § 2255, arguing that Custis did not foreclose him from attacking his predicate convictions and that his 1972 assault conviction was constitutionally infirm. The district court accepted both of these arguments and resentenced Sanders to the original term of 37 months in April 1998. As Sanders had already served 37 months, he was released from custody. The government once again appealed, and in 1999, this court reversed the grant of habeas relief, ruling that Custis prevented Sanders from using § 2255 to attack a state court conviction. Sanders v.

United States, No. 98-3651, 1999 WL 591455, at *2 (6th Cir. July 27, 1999). Sanders’ petition for rehearing was denied in January 2000 and the Supreme Court denied certiorari in March 2000. Sanders v. United States, 529 U.S. 1028, 120 S.Ct. 1440, 146 L.Ed.2d 328 (2000). The Sixth Circuit issued its order in April 2000, which was received and docketed by the district court. That same month, Sanders completed his supex-vised release period under the original sentence. The district court took no action following the Sixth Circuit’s order.

After waiting for a Supreme Court decision on a related topic, the government made its first request that the case be advanced for resentencing in June 2001. Sanders’ attorney successfully moved to be reappointed to the case in July 2001 and filed a response to the government’s resentencing motion in October 2001. The response argued that reseixtencing would violate Sanders’ Sixth and Eighth Amendment rights and requested a stay so that Sanders could be located.

In November 2001, the government replied to the constitutional claims and requested a wax-rant for Sandex-s’ arrest to “avoid a charge [that] the govex-nment failed to exercise due diligence in locating the defendant, and to facilitate his resentencing.” The district coux-t did not issue the stay, took no action on the bx-iefs, and did not issue an arrest wax-rant. The government alleges that in July 2002, the Chief of the Criminal Division of the U.S.

Attorney’s Office for the Northern District of Ohio wrote a letter to the district court, expressing concern over the delay and renewing the government’s request for an arrest warrant. The district court, though, has no recollection of having received this letter, and it does not appear on the court’s docket sheet. The district court took no action during this period. One year later, in June 2003, the government again moved for the district court to advance the case. This motion also appears not to have been docketed by the district court, but Sanders concedes that this motion was filed.

The district coux-t responded six months later, issuing a warrant for Sanders’ arrest in December 2003. Sanders was located within eight days of the issuance of the warrant and arrested without incident. He then was released on bond without objection. In Januai-y 2004, the court granted Sanders’ request to file a supplemental brief in opposition to the motion for resen-tencing. The brief was filed in February 2004 and the government responded in March 2004. Again, the district court took no action. Finally, the government filed a petition for a writ of mandamus with this coux-t in October 2004.

In November 2004, the district eoxirt issued a ruling, denying Sanders’ constitutional claims and reimposing the 180-month sentence required by the ACCA. On the same day, the district court submitted a response to the petition for a writ of mandamus, taking responsibility for the delay in resentencing and stating that its action in imposing the sentence rendered the mandamus action moot. Sanders then filed this timely appeal, arguing that resentencing after such a lengthy delay violated his constitutional right to due process. II. A due process claim raising a mixed question of law and fact is reviewed de novo.

Williams v. Coyle, 260 F.3d 684, 706 (6th Cir.2001). Sanders claims that the delay of over four years, from the issuance of a mandate by this court in April 2000 to his resentencing in November 2004, violated his constitutional right to due process. A. We must first address the proper framework for analyzing Sanders’ claim. Sanders’ primary argument is that the delay violated his right to substantive due process. Relying on language in United States v. Lundien, 769 F.2d 981 (4th Cir. 1985), Hawkins v. Freeman, 195 F.3d 732 (4th Cir.1999) (en banc), and County of Sacramento v.

Lewis, 523 U.S. 833, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998), he argues that it violates due process for a court to correct a sentence, even an illegal one, after so much time has passed that a defendant’s expectations as to its finality have “crystallized.” We believe that Sanders has misconstrued his claim. Unlike the cases cited by Sanders, the situation before us does not involve an increase in the severity of a sentence following an administrative or other governmental error. In Lundien, the court stated its intent to sentence the defendant to a twenty-year prison term.

When the court handed down the sentence, however, the total term of imprisonment was only ten years. Five days later, upon motion of the government, the court corrected its error. Lundien, 769 F.2d at 983. The defendant in Hawkins was mistakenly granted parole. Twenty months later, the state noticed the error, revoked the parole and rearrested the defendant. Hawkins, 195 F.3d at 736-37. In both cases, the Fourth Circuit used a substantive due process framework to evaluate the claims.

As neither defendant had reason to believe an error had occurred, the court analyzed whether their expectations as to the finality of their sentences had “crystallized” so that it would be fundamentally unfair to defeat those expectations. In both cases, the court held that resentencing would not be unfair and that the changes in sentence did not violate the defendant’s constitutional rights. Lundien, 769 F.2d at 987; Hawkins, 195 F.3d at 750. See also DeWitt v.

Ventetoulo, 6 F.3d 32 (1st Cir.1993) (finding a due process violation when, after a delay of six years, the state attempted to reimpose a life sentence that had been suspended in violation of state law). The relevant actions in the cited cases did not occur in the context presented here. In all three cases, the defendants had been sentenced, had begun to serve the sentence, and had no knowledge that a mistake had been made. In contrast, Sanders has persistently argued for over ten years that he should receive a lower sentence.

His release was not due to a clerical error or other negligent act of which Sanders was not aware; the district court ordered him released based on a conclusion of law later deemed to be in error. However, Sanders knew that the district court’s ruling on the § 2255 motion was being appealed and was not yet final. Thus, he had no “expectation of finality” as to his sentence. Indeed, Sanders does not claim that the completion of his sentence, his release from jail, or the completion of his supervised release triggered a due process violation.

Rather, he contends that the district court’s delay in re-sentencing after remand of his § 2255 motion violated his right to due process and that the completion of the 37-month sentence first imposed by the district court after conviction is a factor in the analysis. This question is one of procedure. B. A defendant maintains a right to due process in a criminal proceeding until the entry of final judgment. This right guarantees not only that the required process will be afforded, but that it will be afforded without “oppressive delay.” United States v.

Lovasco, 431 U.S. 783, 789, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977); see also United States v. Smith, 94 F.3d 204, 206-07 (6th Cir.1996). At first glance, this right seems related to the Sixth Amendment’s speedy trial guarantee. U.S. Const, amend. VI. While Sanders does not make a Sixth Amendment claim, he argues that his due process claim can be adjudicated using the same framework established for analyzing speedy trial violations. See Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972).

The Barker test balances four factors — the length of the delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant — to determine if the right to a speedy trial has been violated. Id. at 530, 92 S.Ct. 2182. The Supreme Court has applied this framework in cases analyzing delays between a forfeiture action and trial, United States v. $8,850 in U.S. Currency, 461 U.S. 555, 564-65, 103 S.Ct. 2005, 76 L.Ed.2d 143 (1983), and delays between indictment and arrest, Doggett v. United States, 505 U.S. 647, 651-58, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992).

Although the Court has never directly ruled on the test’s applicability to delays between trial and sentencing, see Pollard v. United States, 352 U.S. 354, 361, 77 S.Ct. 481, 1 L.Ed.2d 393 (1957) (assuming arguendo that the test could be applied to such a delay), the majority of circuits, including this one, use it for these claims. See, e.g., United States v. Reese, 568 F.2d 1246, 1253 (6th Cir.1977); Burkett v. Cunningham, 826 F.2d 1208, 1220 (3d Cir.1987) (collecting cases); United States v. Campbell, 531 F.2d 1333, 1335 (5th Cir.1976).

No court has previously addressed the question of whether Barker is the appropriate framework for analyzing a delay after a conviction and sentence have been affirmed on direct appeal. We hold that it is not. The Court’s stated aim in Barker was to develop a test for a right that “is generically different from any of the other rights enshrined in the Constitution for the protection of the accused.” 407 U.S. at 519, 92 S.Ct. 2182.

The Court noted the many interests society has in the speedy adjudication of criminal matters, as well as the unique characteristics of the right— such as its vagueness and the possibility of its harming, as well as helping, defendants. Id. at 520-21, 92 S.Ct. 2182.

The Court developed the test in light of these characteristics and to protect the purposes underlying the right: (1) to prevent undue and oppressive incarceration prior to trial, (2) to minimize anxiety and concern accompanying public accusation and (3) to limit the possibilities that long delay will impair the ability of the accused to defend himself. Id. at 532, 92 S.Ct. 2182. The Supreme Court has also applied this framework to claims brought under the Due Process Clause, but only when the same fundamental interests are implicated. In United States v. $8,850 in U.S.

Currency, the defendant had over eight thousand dollars confiscated by border officials for failing to make an adequate declaration. The government then waited 18 months before filing a civil forfeiture action. 461 U.S. at 558-59, 103 S.Ct. 2005. The Court used the Barker framework in analyzing whether this delay violated due process. Id. at 564, 103 S.Ct. 2005. The Court recognized that the Sixth Amendment did not apply, as the defendant had not been indicted, arrested, or otherwise deprived of her liberty.

However, the defendant had been “entirely deprived of the use of [her] property,” and thus, like in the Sixth Amendment context, a prompt adjudication of the case was necessary to minimize the burden imposed on an individual whose rights had not yet been determined. Id.; see also Doggett, 505 U.S. at 670, 112 S.Ct. 2686 (Thomas, J., dissenting) (“[A]pplication of Barker presupposes that an accused has been subjected to the evils against which the Speedy Trial Clause is directed .... ”).

This court followed a similar approach in applying a modified Barker test to determine whether a delay during a direct criminal appeal violated the defendant’s right to due process. Smith, 94 F.3d at 207-08. The court in Smith recognized that the Due Process Clause places some limit on the appellate process, even if the right to appeal is not guaranteed.

The court noted that a speedy appeal was necessary for similar reasons underlying the right to a speedy trial: “(1) prevention of oppressive incarceration pending appeal; (2) minimization of anxiety and concern of those convicted awaiting the outcome of their appeals; and (3) limitation of the possibility that a convicted person’s grounds for appeal, and his or her defenses in case of reversal and retrial, might be impaired.” Id. at 211 (citing Harris v. Champion, 15 F.3d 1538, 1559 (10th Cir.1994)). Due to these similarities, the court found the Barker test appropriate for analyzing the constitutional question.

Id. at 207; accord Harris, 15 F.3d at 1558; Simmons v. Reynolds, 898 F.2d 865, 868 (2d Cir.1990). The Supreme Court has not used the Barker framework, however, when the case implicates neither the Sixth Amendment nor the interests protected by the test. In United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971), the Court held that the Speedy Trial Clause does not apply until an individual is arrested or indicted, regardless of whether the person is under investigation.

The Court reasoned that the inquiry is not the passage of time but whether the purposes behind the speedy trial guarantee are implicated. Passage of time, whether before or after arrest, may impair memories, cause evidence to be lost, deprive the defendant of witnesses, and otherwise interfere with his ability to defend himself. But this possibility of prejudice at trial is not itself sufficient reason to wrench the Sixth Amendment from its proper context. Marion, 404 U.S. at 321-22, 92 S.Ct. 455 (footnote omitted). Protection against oppressive delay, the Court held, is provided by the Due Process Clause.

Id at 324-25, 92 S.Ct. 455. Reaffirming this holding in United States v. Lovasco, the Court developed a new test, rather than using the Barker factors, to determine when a delay outside the speedy trial context violates a defendant’s right to due process. 431 U.S. at 790, 97 S.Ct. 2044 (citing Marion, 404 U.S. at 324-25, 92 S.Ct. 455). The court looked to the government’s proffered reasons for the delay and the prejudice suffered by the defendant in determining whether a delay in bringing a pretrial indictment violated due process. Id. at 795-96. In United States v.

MacDonald, 456 U.S. 1, 102 S.Ct. 1497, 71 L.Ed.2d 696 (1982), the Court again implicitly limited Barker’s reach. The defendant in that case was accused oí committing a murder on a military base. The military brought charges, which were eventually dropped, and the defendant was honorably discharged. Four years later, the government obtained an indictment in federal district court charging the defendant with the crime. He claimed that the delay violated his Sixth Amendment right to a speedy trial. The Fourth Circuit agreed, applying the Barker factors. 632 F.2d 258, 266-67 (4th Cir.1980).

The Supreme Court reversed. 456 U.S. at 11, 102 S.Ct. 1497. The Court stated that the protections afforded by the speedy trial guarantee did not apply to the time period after the dismissal of the military charges and before the civil indictment. During that time, the Court reasoned, there was no pretrial incarceration, no impairment of liberty associated with being released on bail, and no “disruption of life caused by arrest and the presence of unresolved criminal charges.” Id. at 8,102 S.Ct. 1497.

While the defendant perhaps suffered stress or anxiety, it was no greater than any other person under criminal investigation. Id. at 9, 102 S.Ct. 1497. Thus, the Due Process Clause, rather than the Sixth Amendment, provided the appropriate framework for analyzing the delay. “The Sixth Amendment right to a speedy trial is ... not primarily intended to prevent prejudice to the defense caused by passage of time; that interest is protected primarily by the Due Process Clause ....” Id at 8.

Thus, “[a]ny undue delay” before and after the period protected by the Sixth Amendment “must be scrutinized under the Due Process Clause .... ” Id. at 7, 102 S.Ct. 1497. On remand, the Fourth Circuit applied the Lovasco framework to the defendant’s claim. 688 F.2d 224, 226-27 (4th Cir.1982), cert. denied, 459 U.S. 1103, 103 S.Ct. 726, 74 L.Ed.2d 951 (1983). Just as the right to a speedy trial does not attach until a criminal proceeding has been initiated and a defendant faces a real and immediate threat of conviction, so too does it cease to apply when the conviction becomes definitive.

This occurs when the conviction is affirmed on direct appeal, if not sooner. The situation faced by Sanders falls outside the Sixth Amendment’s protections and thus, “[a]ny undue delay ... must be scrutinized under the Due Process Clause.” MacDonald, 456 U.S. at 7, 102 S.Ct. 1497. Moreover, a delay in resentencing following an unsuccessful collateral attack does not implicate any of the interests protected by the Barker test. Sanders has been afforded both a trial and an appeal to challenge the deprivation of his liberty and his sentence.

Although the collateral attack may change the sentence, the outcome of the case will not change, reducing the threat of undue or oppressive incarceration. The finality of the original proceeding also eliminates the concern that the defendant will suffer any anxiety from public accusation or the pendency of the direct appeal. Any remaining anxiety is simply that of an individual who faces punishment following the exhaustion of all possible appeals.

Finally, when 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 minimized, if not eliminated completely. The Supreme Court has never extended Barker beyond the protection of these interests, and we decline to do so today. The Barker test is not applicable to the case at hand. C. A delay in resentencing, however, can still run afoul of due process guarantees.

Just as the government cannot unduly prolong an investigation before bringing an indictment, Lovasco, 431 U.S. at 790, 97 S.Ct. 2044, due process also imposes an outer limit on the government’s window of opportunity to resentence a defendant following an appeal. Though the Lovasco line of eases addresses pretrial delays, we find it equally applicable to the present case. As in the time period before the Sixth Amendment right to a speedy trial attaches, the primary concern after the right ceases to apply is “oppressive delay.” The Lovasco framework is well-suited to analyze whether such a delay has occurred.

Thus, we hold that after a conviction has been affirmed on appeal, and a case is remanded solely for resentencing, the question of whether any delay in imposing the sentence violates the defendant’s right to due process can be answered by looking to: (1) the reasons for the delay; and (2) what prejudice the defendant has suffered as a result of the delay.

Like the Court in Lovasco, we emphasize the limited role of the judiciary in this inquiry. “Judges are not free, in defining ‘due process,’ to impose on law enforcement officials our ‘personal and private notions’ of fairness ....” Id. at 790, 97 S.Ct. 2044 (quoting Rochin v.

California, 342 U.S. 165, 170, 72 S.Ct. 205, 96 L.Ed. 183 (1952)). “[Courts] are to determine only whether the action complained of ... violates those ‘fundamental conceptions of justice which lie at the base of our civil and political institutions,’ and which define ‘the community’s sense of fair play and decency.’ ” Id. (internal citations omitted). Sanders bears a heavy burden in showing that he has been the victim of a fundamentally unfair process. A defendant in his situation has already been afforded due process in the form of a fair and speedy trial, a timely conviction and sentence, and appellate review.

Thus, while the protections of the Due Process Clause still apply, a strong showing is required to invoke the remedy that results from finding a due process violation — suspension of the remainder of the sentence. Our analysis of the two Lovasco factors leads us to conclude that Sanders has not met this burden. We look first to the reasons for the delay. This court has emphasized that the government’s motive for the delay plays an important role in determining whether a due process violation has occurred. See, e.g., United States v.

Greene, 737 F.2d 572, 575 (6th Cir.1984) (finding no due process violation because the government did not delay to gain a “tactical advantage”). A showing that the government made little or no effort to seek a timely resentencing by the district court may create a presumption of a due process violation. Cf. DeWitt, 6 F.3d at 35-36 (finding a due process violation based in large part on the government’s taking no action to correct a sentencing error). Moreover, any evidence that the delay was purposeful or due to bad faith would provide strong evidence of a due process violation.

Bad faith requires an affirmative showing by the defendant; it cannot be implied from circumstantial evidence. See United States v. Brown, 959 F.2d 63, 66-67 (6th Cir.1992). On the other hand, a showing by the government that the delay was intended to benefit the defendant counsels against a due process violation. In this ease, Sanders has put forth no evidence of malice or bad faith on the part of the government. Rather, the record indicates that the government made a good-faith effort to sentence Sanders in a timely fashion.

After waiting for the outcome of a related Supreme Court case— which only could have benefitted Sanders — the government made three separate requests to the district court for resen-tencing. The attorneys working the case likely could have made more frequent requests for a timely disposition, but their stated rationale for not doing so — to maintain a good rapport with a judge before whom they appear frequently — is justifiable. Finally, we look to what role Sanders played in creating or augmenting the delay.

The defendant does not have a duty to petition the court for resentencing; the onus falls on the government. However, if the defendant exercises his right to make motions or other filings with the court that delay the court from issuing its final ruling, the defendant cannot then argue that this period of time creates a due process violation. Moreover, any finding that the defendant deliberately caused the delay — i.e., by failing to cooperate with the government investigation, see Margroff v.

Anderson, No. 96-3817, 1999 WL 71576, at *4-5 (6th Cir.Jan.14, 1999), or by making numerous frivolous filings — counsels against finding a due process violation. This does not in any way limit the right of Sanders or any other defendant from mounting a vigorous defense. Our duty simply is to take into account the .amount of the delay resulting from the defendant’s own actions and weigh this against the delay caused by the government or the court. In this case, the government does not allege that Sanders acted deliberately to delay the government’s case or that he made excessive or frivolous filings.

Sanders did file two motions opposing resen-tencing, both of which required responses and rulings by the court, but this action did not greatly contribute to the four-year delay. Nevertheless, when viewed in conjunction with the government’s rational explanations for its actions, it cannot be said that the reasons for the delay violated Sanders’ constitutional right to due process. Sanders has also failed to make any showing of prejudice that would give rise to a due process violation.

As noted above, he already has been convicted in a fair and speedy trial, been sentenced in a timely fashion, and had his conviction and sentence upheld on appeal. Sanders also has had an opportunity to challenge his sentence further via collateral attack. The delay will in no way affect his ability to raise a defense or present evidence, because the only procedure presently at issue is imposition of the minimum sentence under the ACCA. Moreover, Sanders arguably derived some benefit from his early release from prison.

He was able to reunite with his children and provide a strong role model for them; he was able to meet and marry his current wife and form a relationship with her children; and he was able to play a more active role in his community. Throughout the entire process, Sanders was on notice that his sentence had been challenged and that he could potentially be returned to prison. Reimprisonment unquestionably will impose a burden on Sanders, but this is attributable to the underlying offense for which he was convicted, not the delay in resentencing.

Thus, he has not met his burden of showing prejudice suffered as a result of the delay. Sanders has failed to show either that the delay was the result of bad faith or an attempt to gain a tactical advantage on the part of the government, or that he suffered any prejudice as a result of the delay. Although four years is a long period of time between remand and sentencing, we cannot say that the delay in this case “violate[d] fundamental conceptions of justice” or offended “the community’s sense of fair play and decency.” Lovasco, 431 U.S. at 790, 97 S.Ct. 2044. We find no due process violation. III.

The dissent argues that we should follow the test set forth by the First Circuit in DeWitt v. Ventetoulo, 6 F.3d at 35, and later used by a panel of this court in United States v. Mayes, No. 97-6430, 1998 WL 552673 (6th Cir. Aug.19, 1998) (unpublished). Neither of these cases is binding upon us, and we decline to follow them because we are not persuaded by the De-Witt framework.

To begin with, the court in DeWitt does not seem to be establishing a legal rule so much as fashioning a remedy for the “very unusual” situation faced when the state seeks to reimprison a defendant who had no knowledge whatsoever that his release from prison was in error and that he could be returned to jail. De-Witt, 6 F.3d at 36. The court relies on a number of factors but explicitly states that no multi-part formula exists for deciding such an issue. Id. at 35. Moreover, the DeWitt “test” applied by Mayes and the dissent is itself problematic.

The test does not focus on whether the delay violated a substantive right of the defendant or whether it resulted in the defendant being denied an adequate procedure to protect his rights. Rather, it seems to conflate the procedural due process factors delineated in Barker with the substantive due process right discussed in Haivkins and Lundien to create a sort of hybrid right not to be returned to prison. As we have determined that neither Hawkins-Lun-dien nor Barker provides a proper framework for this case, we find DeWitt’s attempt to combine the two unpersuasive.

For the reasons discussed above, Sanders’ claim is properly analyzed under the two-step Lovasco test. Apart from its legal analysis, the dissent devotes much attention to its perception of the equities of this case. Despite the dissent’s extensive narration about Sanders’ post-release conduct, there is no evidence in the record about Sanders’ present situation. The dissent and the district court accepted Sanders’ assertions about his current life without question or an evidentiary hearing.

We have no way of knowing if these assertions are true or if there are other facts not presented to the court which would call these claims into question. Whatever his present lifestyle, we do know that Sanders has a serious criminal past, resulting in his designation as an armed career criminal. Thus, however disconnected this offense may have been from other violent conduct, this defendant is one whom the legislature and the government have selected for significant punishment. Our role is not to second-guess their decision. IV. For the foregoing reasons, we affirm the sentence imposed by the district court. .

Daniels v. United States, 532 U.S. 374, 121 S.Ct. 1578, 149 L.Ed.2d 590 (Apr. 25, 2001) (holding that absent a violation of Gideon v. Wainwright, a defendant may not use § 2255 to challenge the constitutionality of predicate convictions). . As Sanders was sentenced to a statutory mandatory minimum, rather than pursuant to the sentencing guidelines, we have no occasion to consider whether his sentence is affected by United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). See United States v. Duncan, 413 F.3d 680, 683 (7th Cir.2005); United States v.

Bermudez, 407 F.3d 536, 545 (1st Cir.2005). . Sanders’ brief refers to the Fourteenth Amendment, but as the government notes in its brief, it is the Fifth Amendment which applies to the federal government. As the government concedes that there is no difference between the amendments for the purposes of the due process analysis in this case, we analyze Sanders’ claims under the Fifth Amendment. . Although substantive due process is not the proper framework for consideration of Sanders’ claim, it would fail under a substantive due process analysis.

To succeed, Sanders would have to show that the government’s conduct in this case "shocks the conscience” and that the conduct deprived Sanders of a liberty interest cognizable under the Constitution. Lewis, 523 U.S. at 846-47, 118 S.Ct. 1708. Sanders’ claim cannot satisfy either requirement. The government’s conduct in this case does not rise above that of mere negligence. Sanders cannot show the bad faith or deliberate misuse of power necessary to satisfy the Lewis test. See Hawkins, 195 F.3d at 746 (citing Collins v. City of Harker Heights, Tex., 503 U.S. 115, 126, 112 S.Ct. 1061, 117 L.Ed.2d 261 (1992)).

Moreover, the asserted liberty interest — "the right to resist reincarceration and to protect settled expectations of freedom” — is not one protected by the Constitution when the defendant has been convicted, had that conviction affirmed, and the court seeks to impose a lawful sentence. Cf. Hawkins, 195 F.3d at 750 (rejecting a similar argument). . We note that this holding is not in conflict with this court's decision in United States v. Thomas, 167 F.3d 299 (6th Cir.1999).

In Thomas, our court used the Barker framework to analyze whether a delay in resentencing following a direct appeal violated the Constitution. The opinion, however, applied Barker without explicitly holding that it is the appropriate framework. Moreover, the analysis in Thomas focused on a potential violation under the Sixth Amendment, not the Fifth Amendment's Due Process Clause. Id. at 303. . This court has interpreted Lovasco to hold that both conditions are necessary to find a due process violation. See United States v. Brown, 959 F.2d 63, 66 (6th Cir.1992) (citing United States v.

Brown, 667 F.2d 566, 568 (6th Cir. 1982) (per curiam)). See also United States v. Gouveia, 467 U.S. 180, 192, 104 S.Ct. 2292, 81 L.Ed.2d 146 (1984) (suggesting in dicta that both parts must be met). As all of these decisions concern pretrial delay, they are not binding in this case. We need not decide today whether either prong of this test is a necessary or sufficient condition for finding a due process violation in a post-trial delay. A scenario can be imagined where the defendant suffers harsh prejudice, but the government puts forth an excellent rationale excusing the delay.

Likewise, it is possible that a lengthy delay that is shown to be the product of bad faith or unfair dealing on the part of the government does not require a showing of prejudice. In the case at hand, however, Sanders’ claim cannot satisfy either part of the due process analysis. . Sanders argues that the purposeful delay by the district court constitutes a due process violation. While it is possible that egregious delay by a court could rise to the level of a due process violation, it does not do so in this case.

The court conceded that the purpose of its delay was to benefit Sanders, as the court did not wish to impose the lengthier sentence. There is no evidence of bad faith or an intent to act to Sanders' detriment, which would be necessary to find that a court violated a defendant’s right to due process under these circumstances. We in no way condone, however, the district court’s decision to delay resentencing in this case.