United States v. Franklin ( 2000 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-30915
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GREGORY O’NEAL FRANKLIN,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 99-CR-19-1-A
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April 12, 2000
Before WIENER, DeMOSS, and PARKER, Circuit Judges.
PER CURIAM:*
Gregory O’Neal Franklin appeals his jury conviction for
possession of a firearm by a convicted felon in violation of 18
U.S.C. § 922(g). Franklin argues that the district court abused
its discretion in denying his motion for a continuance to locate
a witness. Because Franklin failed to demonstrate that he
exercised due diligence in attempting to locate the witness or
that the witness was available and willing to testify, Franklin
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 99-30915
-2-
has not shown that the district court abused its discretion in
denying his motion for a continuance. See United States v.
Scott, 48 F.3d 1389, 1393 (5th Cir. 1995).
Franklin also argues for the first time on appeal that the
district court’s denial of his motion for a continuance violated
his Fifth Amendment right to due process and his Sixth Amendment
right to compulsory process. Because Franklin did not raise
these arguments in the district court, review is limited to plain
error. See United States v. Calverley, 37 F.3d 160, 162-64 (5th
Cir. 1994) (en banc). Under Fed. R. Crim. P. 52(b), this court
may correct forfeited errors only when the appellant shows the
following factors: (1) there is an error, (2) that is clear or
obvious, and (3) that affects his substantial rights. Id. at
162-64 (citing United States v. Olano, 507 U.S. 725, 730-36
(1993)). If these factors are established, the decision to
correct the forfeited error is within the sound discretion of the
court, and the court will not exercise that discretion unless the
error seriously affects the fairness, integrity, or public
reputation of judicial proceedings. Olano, 507 U.S. at 736.
Franklin has not shown that he exercised due diligence in
attempting to locate Butler, that there was a reasonable
probability of obtaining Butler’s testimony within a reasonable
time, that he had any information concerning where Butler
currently lives or works, or that he knew any person who might
have had more information concerning Butler. Therefore, the
district court’s denial of the motion for a continuance did not
violate Franklin’s due process rights or his right to compulsory
No. 99-30915
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process. See United States v. Khan, 728 F.2d 676, 678 (5th Cir.
1984).
AFFIRMED.