United States v. Smarr , 299 F. App'x 385 ( 2008 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 13, 2008
No. 07-41128
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
MICHAEL ALAN SMARR
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:04-CR-901-1
Before REAVLEY, DAVIS, and ELROD, Circuit Judges.
PER CURIAM:*
Michael Alan Smarr appeals the revocation of his supervised release
imposed following his conviction for transporting illegal aliens. He argues that
the district court’s denial of his motion for a continuance of the revocation
hearing violated his due process right to a fair hearing. Smarr argues that he
was denied adequate disclosure of the evidence against him, adequate time to
investigate and interview witnesses, the right to present evidence, and the right
to confront and cross-examine the witnesses against him.
*
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should not be published and is not precedent except under the limited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. 07-41128
Although Smarr did not receive the supplemental report until the day of
the revocation hearing and the Government did not object to the continuance,
Smarr has not shown that the district court abused its discretion in denying his
motion for a continuance or violated his due process rights. Smarr had
approximately seven weeks after counsel was appointed to investigate the
charges, conduct discovery, locate any potential witnesses or exculpatory
evidence, and prepare for the hearing. Smarr did not file for a continuance
before the hearing. He moved orally for a continuance at the hearing because
he did not receive the probation department’s supplemental report until the day
of the revocation hearing. Smarr does not explain why he could not have
investigated the charges and discovered whether a videotape or witnesses
existed prior to the date of the final revocation hearing. Smarr does not identify
any specific favorable evidence or favorable witnesses that would have been
discovered if a continuance had been granted. Because he has not shown that
he suffered “specific and compelling or serious prejudice” due to the district
court’s denial of his motion for a continuance, he has not shown that the district
court abused its discretion in denying his motion. See United States v. Barnett,
197 F.3d 138, 144 (5th Cir. 1999). Further, because Smarr has not shown that
he suffered prejudice as a result of the denial of the continuance, he has not
shown that the denial of the continuance violated his due process rights. See
United States v. Tippens, 39 F.3d 88, 90 (5th Cir. 1994); see also United States
v. Ayers, 946 F.2d 1127, 1129-30 (5th Cir. 1991).
AFFIRMED.
2