NOTICE: This opinion is subject to
formal revision before publication in the preliminary print of the
United States Reports. Readers are requested to notify the Reporter
of Decisions, Supreme Court of the United States, Washington,
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															SUPREME COURT OF THE UNITED STATES

															_________________

															No. 14–1457

															_________________

															BRANDON THOMAS BETTERMAN, PETITIONER v. MONTANA

															on writ of certiorari to the supreme court of
montana

															[May 19, 2016]

															Justice Ginsburg delivered the opinion of the
Court.

															The Sixth Amendment to the U. S.
Constitution provides that “[i]n all criminal prosecutions, the
accused shall enjoy the right to a speedy and public trial, by an
impartial jury . . . .” Does the Sixth Amendment’s
speedy trial guarantee apply to the sentencing phase of a criminal
prosecution? That is the sole question this case presents. We hold
that the guarantee protects the accused from arrest or indictment
through trial, but does not apply once a defendant has been found
guilty at trial or has pleaded guilty to criminal charges. For
inordinate delay in sentencing, although the Speedy Trial Clause
does not govern, a defendant may have other recourse, including, in
appropriate circumstances, tailored relief under the Due Process
Clauses of the Fifth and Fourteenth Amendments. Petitioner Brandon
Betterman, however, advanced in this Court only a Sixth Amendment
speedy trial claim. He did not preserve a due process challenge.
See Tr. of Oral Arg. 19. We, therefore, confine this opinion to his
Sixth Amendment challenge.

															I

															Ordered to appear in court on domestic assault
charges, Brandon Betterman failed to show up and was therefore
charged with bail jumping. 378 Mont. 182, 184, 342 P. 3d 971,
973 (2015). After pleading guilty to the bail-jumping charge, he
was jailed for over 14 months awaiting sentence on that conviction. Id., at 184–185, 342 P. 3d, at 973–974. The holdup, in
large part, was due to institutional delay: the presentence report
took nearly five months to complete; the trial court took several
months to deny two presentence motions (one seeking dismissal of
the charge on the ground of delay); and the court was slow in
setting a sentencing hearing. Id., at 185, 195, 342
P. 3d, at 973–974, 980. Betterman was eventually sentenced to
seven years’ imprisonment, with four of those years suspended. Id., at 185, 342 P. 3d, at 974.

															Arguing that the 14-month gap between conviction
and sentencing violated his speedy trial right, Betterman appealed.
The Montana Supreme Court affirmed his conviction and sentence,
ruling that the Sixth Amendment’s Speedy Trial Clause does not
apply to postconviction, presentencing delay. Id., at
188–192, 342 P. 3d, at 975–978.

															We granted certiorari, 577 U. S. ___
(2015), to resolve a split among courts over whether the Speedy
Trial Clause applies to such delay.[ 1 ] Holding that the Clause does not apply to delayed
sentencing, we affirm the Montana Supreme Court’s judgment.

															II

															Criminal proceedings generally unfold in three
discrete phases. First, the State investigates to determine whether
to arrest and charge a suspect. Once charged, the suspect stands
accused but is presumed innocent until conviction upon trial or
guilty plea. After conviction, the court imposes sentence. There
are checks against delay throughout this progression, each geared
to its particular phase.

															In the first stage—before arrest or indictment,
when the suspect remains at liberty—statutes of limitations provide
the primary protection against delay, with the Due Process Clause
as a safeguard against fundamentally unfair prosecutorial conduct. United States v. Lovasco , 431 U. S. 783, 789
(1977) ; see id., at 795, n. 17 (Due ProcessClause may
be violated, for instance, by prosecutorial delay that is
“tactical” or “reckless” (internal quotation marks omitted)).

															The Sixth Amendment’s Speedy Trial Clause homes
in on the second period: from arrest or indictment through
conviction. The constitutional right, our precedent holds, does not
attach until this phase begins, that is, when a defendant is
arrested or formally accused. United States v. Marion , 404 U. S. 307 –321 (1971). Today we hold that
the right detaches upon conviction, when this second stage
ends.[ 2 ]

															Prior to conviction, the accused is shielded by
the presumption of innocence, the “bedrock[,] axiomatic and
elementary principle whose enforcement lies at the foundation of
the administration of our criminal law.” Reed v. Ross , 468 U. S. 1, 4 (1984) (internal quotation marks
omitted). The Speedy Trial Clause implements that presumption by
“prevent[ing] undue and oppressive incarceration prior to trial,
. . . minimiz[ing] anxiety and concern accompanying
public accusation[,] and . . . limit[ing] the
possibilities that long delay will impair the ability of an accused
to defend himself.” Marion , 404 U. S., at 320 (internal
quotation marks omitted). See also Barker v. Wingo ,
407 U. S. 514 –533 (1972). As a measure protecting the
presumptively innocent, the speedy trial right—like other similarly
aimed measures—loses force upon conviction. Compare In re
Winship , 397 U. S. 358, 364 (1970) (requiring “proof
beyond a reasonable doubt of every fact necessary to constitute the
crime”), with United States v. O’Brien , 560
U. S. 218, 224 (2010) (“Sentencing factors . . . can
be proved . . . by a preponderance of the evidence.”).
Compare also 18 U. S. C. §3142(b) (bail presumptively
available for accused awaiting trial) with §3143(a) (bail
presumptively unavailable for those convicted awaiting
sentence).

															Our reading comports with the historical
understanding. The speedy trial right, we have observed, “has its
roots at the very foundation of our English law heritage. Its first
articulation in modern jurisprudence appears to have been made in
Magna Carta (1215) . . . .” Klopfer v. North Carolina , 386 U. S. 213, 223 (1967) . Regarding
the Framers’ comprehension of the right as it existed at the
founding, we have cited Sir Edward Coke’s Institutes of the Laws of
England. See id., at 223–225, and nn. 8, 12–14, 18.
Coke wrote that “the innocent shall not be worn and wasted
by long imprisonment, but . . . speedily come to his tria[l] .” 1 E. Coke, Second Part of the Institutes of the
Laws of England 315 (1797) (emphasis added).

															Reflecting the concern that a presumptively
innocent person should not languish under an unresolved charge, the
Speedy Trial Clause guarantees “the accused ” “the right to a
speedy . . . trial .” U. S. Const., Amdt. 6
(emphasis added). At the founding, “accused” described a status
preceding “convicted.” See, e.g., 4 W. Blackstone,
Commentaries on the Laws of England 322 (1769) (commenting on
process in which “persons accused of felony . . .
were tried . . . and convicted ” (emphasis added)).
And “trial” meant a discrete episode after which judgment
( i.e., sentencing) would follow. See, e.g., id., at 368 (“We are now to consider the next stage of
criminal prosecution, after trial and conviction are past
. . . : which is that of judgment .”).[ 3 ]

															This understanding of the Sixth Amendment
language—“accused” as distinct from “convicted,” and “trial” as
separate from “sentencing”—endures today. See, e.g., Black’s
Law Dictionary 26 (10th ed. 2014) (defining “accused” as “a person
who has been arrested and brought before a magistrate or who
has been formally charged ” (emphasis added)); Fed. Rule
Crim. Proc. 32 (governing “Sentencing and Judgment,” the rule
appears in the chapter on “Post-Conviction Procedures,” which
follows immediately after the separate chapter headed
“Trial”).[ 4 ]

															This Court’s precedent aligns with the text and
history of the Speedy Trial Clause. Detaining the accused pretrial,
we have said, disadvantages him, and the imposition is “especially
unfortunate” as to those “ultimately found to be innocent.” Barker , 407 U. S., at 532–533. And in Marion ,
404 U. S., at 320, addressing “the major evils protected
against by the speedy trial guarantee,” we observed: “Arrest is a
public act that may seriously interfere with the defendant’s
liberty, whether he is free on bail or not, and that may disrupt
his employment, drain his financial resources, curtail his
associations, subject him to public obloquy, and create anxiety in
him, his family and his friends.” We acknowledged in Marion that even pre-arrest—a stage at which the right to a speedy trial
does not arise—the passage of time “may impair memories, cause
evidence to be lost, deprive the defendant of witnesses, and
otherwise interfere with his ability to defend himself.” Id., at 321. Nevertheless, we determined, “this possibility
of prejudice at trial is not itself sufficient reason to wrench the
Sixth Amendment from its proper [arrest or charge triggered]
context.” Id., at 321–322. Adverse consequences of
postconviction delay, though subject to other checks, see infra , at 10–11, are similarly outside the purview of the
Speedy Trial Clause.[ 5 ]

															The sole remedy for a violation of the speedy
trial right—dismissal of the charges, see Strunk v. United States , 412 U. S. 434, 440 (1973) ; Barker , 407 U. S., at 522—fits the preconviction focus
of the Clause. It would be an unjustified windfall, in most cases,
to remedy sentencing delay by vacating validly obtained
convictions. Betterman concedes that a dismissal remedy ordinarily
would not be in order once a defendant has been convicted. See Tr.
of Oral Arg. 5–6; cf. Bozza v. United States , 330
U. S. 160, 166 (1947) (“[A]n error in passing the sentence”
does not permit a convicted defendant “to escape punishment
altogether.”).[ 6 ]

															The manner in which legislatures have
implemented the speedy trial guarantee matches our reading of the
Clause. Congress passed the Speedy Trial Act of 1974, 18
U. S. C. §3161 et seq. , “to give effect to
the sixth amendment right.” United States v. MacDonald , 456 U. S. 1 , n. 7 (1982) (quoting
S. Rep. No. 93–1021, p. 1 (1974)). “The more stringent
provisions of the Speedy Trial Act have mooted much litigation
about the requirements of the Speedy Trial Clause
. . . .” United States v. Loud Hawk ,
474 U. S. 302 , n. 1 (1986) (citation omitted). With
certain exceptions, the Act directs—on pain of dismissal of the
charges, §3162(a)—that no more than 30 days pass between arrest and
indictment, §3161(b), and that no more than 70 days pass between
indictment and trial, §3161(c)(1). The Act says nothing, however,
about the period between conviction and sentencing, suggesting that
Congress did not regard that period as falling within the Sixth
Amendment’s compass. Numerous state analogs similarly impose
precise time limits for charging and trial; they, too, say nothing
about sentencing.[ 7 ]

															Betterman asks us to take account of the
prevalence of guilty pleas and the resulting scarcity of trials in
today’s justice system. See Lafler v. Cooper , 566
U. S. ___, ___ (2012) (slip op., at 11) (“[C]riminal justice
today is for the most part a system of pleas, not a system of
trials.”). The sentencing hearing has largely replaced the trial as
the forum for dispute resolution, Betterman urges. Therefore, he
maintains, the concerns supporting the right to a speedy trial now
recommend a speedy sentencing hear-ing. The modern reality,
however, does not bear on the presumption-of-innocence protection
at the heart of the Speedy Trial Clause. And factual disputes, if
any there be, at sentencing, do not go to the question of
guilt;they are geared, instead, to ascertaining the proper sentence
within boundaries set by statutory minimums and maximums.

															Moreover, a central feature of contemporary
sentencing in both federal and state courts is preparation by the
probation office, and review by the parties and the court, of a
presentence investigation report. See 18 U. S. C. §3552;
Fed. Rule Crim. Proc. 32(c)–(g); 6 W. LaFave, J. Israel, N. King,
& O. Kerr, Criminal Procedure §26.5(b), pp. 1048–1049 (4th ed.
2015) (noting reliance on presentence reports in federal and state
courts). This aspect of the system requires some amount of wholly
reasonable presentencing delay.[ 8 ] Indeed, many—if not most—disputes are resolved, not at
the hearing itself, but rather through the presentence-report
process. See N. Demleitner, D. Berman, M. Miller, & R. Wright,
Sentencing Law and Policy 443 (3d ed. 2013) (“Criminal justice is
far more commonly negotiated than adjudicated; defendants and their
attorneys often need to be more concerned about the charging and
plea bargaining practices of prosecutors and the presentence
investigations of probation offices than . . . about the
sentencing procedures of judges or juries.”); cf. Bierschbach &
Bibas, Notice-and-Comment Sentencing, 97 Minn. L. Rev. 1, 15
(2012) (“[T]oday’s sentencing hearings . . . rubber-stamp
plea-bargained sentences.”).

															As we have explained, at the third phase of
thecriminal-justice process, i.e., between conviction and
sentencing, the Constitution’s presumption-of-innocence-protective
speedy trial right is not engaged.[ 9 ] That does not mean, however, that defendants lack any
protection against undue delay at this stage. 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). Many States have provisions to the same
effect,[ 10 ] and some States
prescribe numerical time limits.[ 11 ] Further, as at the prearrest stage, due process
serves as a backstop against exorbitant delay. See supra, at
3. 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. But because
Betterman advanced no due process claim here, see supra, at
1, we express no opinion on how he might fare under that more
pliable standard. See, e.g., United States v. $8,850 , 461 U. S. 555 –565 (1983).[ 12 ]

															*  *  *

															The course of a criminal prosecution is
composed of discrete segments. During the segment between
accusation and conviction, the Sixth Amendment’s Speedy Trial
Clause protects the presumptively innocent from long enduring
unresolved criminal charges. The Sixth Amendment speedy trial
right, however, does not extend beyond conviction, which terminates
the presumption of innocence. The judgment of the Supreme Court of
Montana is therefore

															Affirmed. Notes 1 Compare Burkett v. Cunningham , 826 F. 2d 1208, 1220 (CA3 1987); Juarez-Casares v. United States , 496 F. 2d 190,
192 (CA5 1974); Ex parte Apicella , 809 So. 2d 865,
869 (Ala. 2001); Gonzales v. State , 582 P. 2d
630, 632 (Alaska 1978); Jolly v. State , 358 Ark. 180,
191, 189 S. W. 3d 40, 45 (2004); Trotter v. State , 554 So. 2d 313, 316 (Miss. 1989), superseded by
statute on other grounds, Miss. Code Ann. §99–35–101 (2008); Commonwealth v. Glass , 526 Pa. 329, 334, 586
A. 2d 369, 371 (1991); State v. Leyva , 906
P. 2d 910, 912 (Utah 1995); and State v. Dean ,
148 Vt. 510, 513, 536 A. 2d 909, 912 (1987) (Speedy Trial
Clause applies to sentencing delay), with United States v. Ray , 578 F. 3d 184, 198–199 (CA2 2009); State v. Drake , 259 N. W. 2d 862, 866 (Iowa 1977), abrogated on
other grounds by State v. Kaster , 469 N. W. 2d
671, 673 (Iowa 1991); State v. Pressley , 290 Kan. 24,
29, 223 P. 3d 299, 302 (2010); State v. Johnson ,
363 So. 2d 458, 460 (La. 1978); 378 Mont. 182, 192, 342
P. 3d 971, 978 (2015) (case below); and Ball v. Whyte , 170 W. Va. 417, 418, 294 S. E. 2d 270,
271 (1982) (Speedy Trial Clause does not apply to sentencing
delay). 2 We reserve the question
whether the Speedy Trial Clause applies to bifurcated proceedings
in which, at the sentencing stage, facts that could increase the
prescribed sentencing range are determined ( e.g., capital
cases in which eligibility for the death penalty hinges on
aggravating factor findings). Nor do we decide whether the right
reattaches upon renewed prosecution following a defendant’s
successful appeal, when he again enjoys the presumption of
innocence. 3 As Betterman points out,
at the founding, sentence was often imposed promptly after
rendition of a verdict. Brief for Petitioner 24–26. But that was
not invariably the case. For the court’s “own convenience, or on
cause shown, [sentence could be] postpone[d] . . . to a
future day or term.” 1 J. Bishop, Criminal Procedure §1291, p. 767
(3d ed. 1880) (footnote omitted). See also 1 J. Chitty, A Practical
Treatise on the Criminal Law 481 (1819) (“The sentence
. . . is usually given immediately after the conviction,
but the court may adjourn to another day and then give
judgment.”). 4 We do not mean to convey
that provisions of the Sixth Amendment protecting interests other
than the presumption of innocence are inapplicable to sentencing.
In this regard, we have held that the right to defense counsel
extends to some postconviction proceedings. See Mempa v. Rhay , 389 U. S. 128 –137 (1967). 5 Smith v. Hooey , 393 U. S. 374 (1969) , on which Betterman
relies, is not to the contrary. There we concluded that a
defendant, though already convicted and imprisoned on one charge,
nevertheless has a right to be speedily brought to trial on an
unrelated charge. Id., at 378. “[T]here is reason to
believe,” we explained in Smith , “that an outstanding
untried charge (of which even a convict may, of course, be
innocent) can have fully as depressive an effect upon a prisoner as
upon a person who is at large.” Id., at 379. Smith is
thus consistent with comprehension of the Speedy Trial Clause as
protective of the presumptively innocent. 6 Betterman suggests that
an appropriate remedy for the delay in his case would be reduction
of his sentence by 14 months—the time between his conviction and
sentencing. See Tr. of Oral Arg. 6. We have not read the Speedy
Trial Clause, however, to call for a flexible or tailored remedy.
Instead, we have held that violation of the right demands
termination of the prosecution. 7 See, e.g., Alaska
Rule Crim. Proc. 45 (2016); Ark. Rules Crim. Proc. 28.1 to 28.3
(2015); Cal. Penal Code Ann. §1382 (West 2011); Colo. Rev. Stat.
§18–1–405 (2015); Conn. Rules Crim. Proc. 43–39 to 43–42 (2016);
Fla. Rule Crim. Proc. 3.191 (2016); Haw. Rule Crim. Proc. 48
(2016); Ill. Comp. Stat., ch. 725, §5/103–5 (West 2014); Ind. Rule
Crim. Proc. 4 (2016); Iowa Rule Crim. Proc. 2.33 (2016); Kan. Stat.
Ann. §22–3402 (2014 Cum. Supp.); La. Code Crim. Proc. Ann., Art.
701 (West Cum. Supp. 2016); Mass. Rule Crim. Proc. 36 (2016); Neb.
Rev. Stat. §§29–1207, 29–1208 (2008); Nev. Rev. Stat. §178.556
(2013); N. Y. Crim. Proc. Law Ann. §30.30 (West Cum. Supp.
2016); Ohio Rev. Code Ann. §§2945.71 to 2945.73 (Lexis 2014); Ore.
Rev. Stat. §§135.745, 135.746, 135.748, 135.750, 135.752 (2015);
Pa. Rule Crim. Proc. 600 (2016); S. D. Codified Laws
§23A–44–5.1 (Cum. Supp. 2015); Va. Code Ann. §19.2–243 (2015);
Wash. Rule Crim. Proc. 3.3 (2016); Wis. Stat. §971.10 (2011–2012);
Wyo. Rule Crim. Proc. 48 (2015). 8 “In federal
prosecutions,” the Solicitor General informs us, “the median time
between conviction and sentencing in 2014 was 99 days.” Brief for
United States as Amicus Curiae 31, n. 5. A good part of
this time no doubt was taken up by the drafting and review of a
presentence report. See Fed. Rule Crim. Proc. 32(c)–(g) (detailing
presentence-report process). 9 It is true that during
this period the defendant is often incarcerated. See, e.g., §3143(a) (bail presumptively unavailable for convicted awaiting
sentence). Because postconviction incarceration is considered
punishment for the offense, however, a defendant will ordinarily
earn time-served credit for any period of presentencing detention.
See §3585(b); A. Campbell, Law of Sentencing §9:28, pp. 444–445,
and n. 4 (3d ed. 2004) (“[State c]rediting statutes routinely
provide that any period of time during which a person was
incarcerated in relation to a given offense be counted toward
satisfaction of any resulting sentence.”). That such detention may
occur in a local jail rather than a prison is of no constitutional
moment, for a convicted defendant has no right to serve his
sentence in the penal institution he prefers. See Meachum v. Fano , 427 U. S. 215 –225 (1976). 10 See, e.g., Alaska Rule Crim. Proc. 32(a) (2016); Colo. Rule Crim.
Proc. 32(b)(1) (2015); Del. Super. Ct. Crim. Rule 32(a)(1) (2003);
Fla. Rule Crim. Proc. 3.720 (2016); Haw. Rule Penal Proc. 32(a)
(2016); Kan. Stat. Ann. §22–3424(c) (2014 Cum. Supp.); Ky. Rule
Crim. Proc. 11.02(1) (2016); La. Code Crim. Proc. Ann., Art. 874
(West 2016); Me. Rule Crim. Proc. 32(a)(1) (2015); Mass. Rule Crim.
Proc. 28(b) (2016); Mich. Ct. Rule 6.425(E)(1) (2011); Mo. Sup. Ct.
Rule 29.07(b)(1) (2011); Mont. Code Ann. §46–18–115 (2015); Nev.
Rev. Stat. §176.015(1) (2013); N. H. Rule Crim. Proc. 29(a)(1)
(2016); N. J. Ct. Rule 3:21–4(a) (2016); N. Y. Crim.
Proc. Law Ann. §380.30(1) (West Cum. Supp. 2016); N. D. Rule
Crim. Proc. 32(a)(1) (2011); Ohio Rule Crim. Proc. 32(A) (2013);
R. I. Super. Ct. Rule 32(a)(1) (2015); S. D. Codified
Laws §23A–27–1 (Cum. Supp. 2015); Vt. Rule Crim. Proc. 32(a)(1)
(2010); Va. Sup. Ct. Rule 3A:17.1(b) (2012); W. Va. Rule Crim.
Proc. 32(a) (2006); Wyo. Rule Crim. Proc. 32(c)(1)
(2015). 11 See, e.g., Ariz. Rule Crim. Proc. 26.3(a)(1) (2011); Ark. Rule
Crim. Proc. 33.2 (2015); Cal. Penal Code Ann. §1191 (West 2015);
Ind. Rule Crim. Proc. 11 (2016); N. M. Rule Crim. Proc.
5–701(B) (2016); Ore. Rev. Stat. §137.020(3) (2015); Pa. Rule Crim.
Proc. 704(A)(1) (2016); Tenn. Code Ann. §40–35–209(a) (2014); Utah
Rule Crim. Proc. 22(a) (2015); Wash. Rev. Code §9.94A.500(1) (2016
Cum. Supp.). These sentencing provisions are separate from state
analogues to the Speedy Trial Act. See supra, at 8, and
n. 7. 12 Relevant considerations may include
the length of and reasons for delay, the defendant’s diligence in
requesting expeditious sentencing, and prejudice. SUPREME COURT OF THE UNITED STATES

															_________________

															No. 14–1457

															_________________

															BRANDON THOMAS BETTERMAN, PETITIONER v. MONTANA

															on writ of certiorari to the supreme court of
montana

															[May 19, 2016]

															Justice Thomas, with whom Justice Alito joins,
concurring.

															I agree with the Court that the Sixth
Amendment’s Speedy Trial Clause does not apply to sentencing
proceedings, except perhaps to bifurcated sentencing proceedings
where sentencing enhancements operate as functional elements of a
greater offense. See ante, at 2–3, and n. 2. I also
agree with the Court’s decision to reserve judgment on whether
sentencing delays might violate the Due Process Clause. Ante, at 11. Brandon Betterman’s counsel repeatedly
disclaimed that he was raising in this Court a challenge under the
Due Process Clause. See Tr. of Oral Arg. 7–8 (“We haven’t included
that. We didn’t include that in the question presented, Your
Honor”); id., at 8 (“[W]e are not advancing that claim
here”); id., at 19 (“[W]e didn’t preserve a—a due process
challenge. Our challenge is solely under the Sixth Amendment”).

															We have never decided whether the Due Process
Clause creates an entitlement to a reasonably prompt sentencing
hearing. Today’s opinion leaves us free to decide the proper
analytical framework to analyze such claims if and when the issue
is properly before us.

															Justice Sotomayor suggests that, for such
claims, we should adopt the factors announced in Barker v. Wingo , 407 U. S. 514 –533 (1972). Post, at 2
(concurring opinion). I would not prejudge that matter. The factors
listed in Barker may not necessarily translate to the
delayed sentencing context. The Due Process Clause can be satisfied
where a State has adequate procedures to redress an improper
deprivation of liberty or property. See Parratt v. Taylor , 451 U. S. 527, 537 (1981) . In unusual cases
where trial courts fail to sentence a defendant within a reasonable
time, a State might fully satisfy due process by making traditional
extraordinary legal remedies, such as mandamus, available. Or, much
like the federal Speedy Trial Act regulates trials, see 18
U. S. C. §3161, a State might remedy improper sentencing
delay by statute.[ 1 ] And a
person who sleeps on these remedies, as Betterman did, may simply
have no right to complain that his sentencing was delayed. We
should await a proper presentation, full briefing, and argument
before taking a position on this issue.

															The Court thus correctly “express[es] no opinion
on how [Betterman] might fare” under the Due Process Clause. Ante, at 11. Notes 1 Montana law, for example,
secures the right to a prompt sentencing hearing. See Mont. Code
Ann. §46–18–101(3)(a) (2015) (“Sentencing and punishment must be
certain, timely, consistent, and understand-able”);
§46–18–102(3)(a) (“[I]f the verdict or finding is guilty, sentence
must be pronounced and judgment rendered within a reasonable
time”); §46–18–115 (“[T]he court shall conduct a sentencing
hearing, without unreasonable delay”). SUPREME COURT OF THE UNITED STATES

															_________________

															No. 14–1457

															_________________

															BRANDON THOMAS BETTERMAN, PETITIONER v. MONTANA

															on writ of certiorari to the supreme court of
montana

															[May 19, 2016]

															Justice Sotomayor, concurring.

															I agree with the Court that petitioner cannot
bring a claim under the Speedy Trial Clause for a delay between his
guilty plea and his sentencing. As the majority notes, however, a
defendant may have “other recourse” for such a delay, “including,
in appropriate circumstances, tailored relief under the Due Process
Clauses of the Fifth and Fourteenth Amendments.” Ante, at
1 . The Court has no reason to consider today the appropriate
test for such a Due Process Clause challenge because petitioner has
forfeited any such claim. See Tr. of Oral Arg. 19. I write
separately to emphasize that the question is an open one.

															The Due Process Clause is “flexible and calls
for such procedural protections as the particular situation
demands.” Morrissey v. Brewer , 408 U. S. 471,
481 (1972) . This Court thus uses different tests to consider
whether different kinds of delay run afoul of the Due Process
Clause. In evaluating whether a delay in instituting judicial
proceedings following a civil forfeiture violated the Due Process
Clause, the Court applied the test from Barker v. Wingo , 407 U. S. 514 (1972) —the same test that the
Court applies to violations of the Speedy Trial Clause. See United States v. $8,850 , 461 U. S. 555, 564
(1983) . Under the Barker test, courts consider four
factors—the length of the delay, the reason for the delay, the
defendant’s assertion of his right, and prejudice to the defendant. Ibid. None of the four factors is “either necessary or
sufficient,” and no one factor has a “talismanic qualit[y].” Barker , 407 U. S., at 533.

															The Montana Supreme Court did not use the Barker test in evaluating petitioner’s Due Process Clause
claim. 378 Mont. 182, 193–194, 342 P. 3d 971, 979 (2015). But
it seems to me that the Barker factors capture many of the
concerns posed in the sentencing delay context and that because the Barker test is flexible, it will allow courts to take
account of any differences between trial and sentencing delays. See
407 U. S., at 531. The majority of the Circuits in fact use
the Barker test for that purpose. See United States v. Sanders , 452 F. 3d 572, 577 (CA6 2006) (collecting
cases).

															In the appropriate case, I would thus consider
the correct test for a Due Process Clause delayed sentencing
challenge.

Summary: The Sixth Amendment to the U.S. Constitution guarantees a speedy trial for the accused in criminal prosecutions. In this case, the Court considered whether this guarantee extends to the sentencing phase. The Court held that the Sixth Amendment's speedy trial right does not apply once a defendant has been found guilty at trial or has pleaded guilty. However, for inordinate delay in sentencing, defendants may seek recourse under the Due Process Clauses of the Fifth and Fourteenth Amendments. In this case, Brandon Betterman argued that the 14-month delay between his guilty plea and sentencing violated his speedy trial right, but the Montana Supreme Court affirmed his conviction and sentence, ruling that the Sixth Amendment's Speedy Trial Clause does not apply to post-conviction, pre-sentencing delay. The U.S. Supreme Court agreed, holding that the speedy trial guarantee does not extend to the sentencing phase.