United States v. Samuel Thomas Jones

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
March 17, 2006
No. 05-14817
THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-20854-CR-PAS
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SAMUEL THOMAS JONES,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(March 17, 2006)
Before BLACK, BARKETT and PRYOR, Circuit Judges.
PER CURIAM:
Samuel Thomas Jones appeals the denial of his request for a continuance
during his sentencing hearing. Jones sought the continuance to allow him time to
procure the testimony of his attorney challenging an Arizona conviction of Jones
that was used to enhance Jones’s sentence. Because Jones had sufficient time and
opportunity to procure this testimony before he requested a continuance, the
district court did not abuse its discretion when it denied Jones’s request.
BACKGROUND
Jones was indicted on November 4, 2004, on one count of possession with
intent to distribute methamphetamine and one count of possession with intent to
distribute MDMA (“Ecstacy”). 21 U.S.C. §§ 841(a)(1), (b)(1)(B). On February
24, 2005, the government filed a notice of intent to seek enhanced penalties based
on Jones’s 2002 Arizona felony conviction. 21 U.S.C. § 851. The enhancement
increased Jones mandatory minimum sentence from 5 years to 10 years and
increased his maximum sentence from 40 years to life imprisonment. On April 7,
2005, Jones pleaded guilty to both charges, without a written plea agreement. The
district court set a sentencing hearing for June 27.
On June 23, Jones moved for a 30-day continuance to defend against the
section 851 enhancement on the ground that he was challenging his Arizona state
conviction as unconstitutional. The district court granted the continuance and
rescheduled the sentencing hearing for August 8. At the August 8 hearing, Jones
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requested another 48-hour continuance to produce his Arizona state court counsel
or an affidavit from the state court counsel. The district court denied the
continuance and proceeded with the sentencing hearing.
STANDARD OF REVIEW
We review the denial of a request for continuance by the district court for an
abuse of discretion. United States v. Bergouignan, 764 F.2d 1503, 1508 (11th Cir.
1985).
DISCUSSION
We consider four factors when we determine whether the decision of the
district court to deny a request for a continuance is so arbitrary and unreasonable
that it constitutes an abuse of discretion:
(1) the diligence of the defense in interviewing the witness and
procuring his testimony; (2) the probability of obtaining the testimony
within a reasonable time; (3) the specificity with which the defense
was able to describe the witness’s expected knowledge or testimony;
and (4) the degree to which such testimony was expected to be
favorable to the accused, and the unique or cumulative nature of the
testimony.
United States v. Wright, 63 F.3d 1067, 1071 (11th Cir. 1995) (quoting United
States v. Cross, 928 F.2d 1030, 1048 (11th Cir. 1991)). Because none of these
factors favor Jones, he cannot establish that the district court abused its discretion.
First, Jones did not establish that he was diligent in interviewing the witness
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and procuring testimony. Jones received the notice of intent to seek an
enhancement from the government in February 2005. Jones requested a
continuance four months later and received an additional 42 days to prepare. Jones
testified that he had been in contact with the Arizona counsel by June 23, which
means Jones had 45 days before the August 8 hearing to obtain the testimony of
the Arizona counsel, a more than sufficient amount of time. Jones stated that the
Arizona counsel was not helpful, but Jones failed to state what efforts he had made
to obtain the Arizona counsel’s appearance at the hearing.
Second, Jones did not establish that he could have procured the testimony in
a reasonable time. Jones was unable to procure the testimony of the Arizona
counsel in 45 days, and he presented no evidence that an additional 48 hours would
have enabled him to procure the testimony.
Third, Jones did not specify what testimony he would elicit from the Arizona
counsel. On several occasions at the evidentiary hearing, Jones stated that he was
unsure about the testimony of the Arizona counsel. To find an abuse of discretion,
we require at least some specificity regarding the testimony of the witness, and
Jones has been unable to provide it.
Finally, Jones failed to establish that the testimony would favor him. At the
sentencing hearing, the district court questioned Jones’s counsel about the effect
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the Arizona proceedings. Jones’s counsel repeatedly stated that he did not know
Arizona law and that Arizona law for challenging a conviction is different from
Florida law. This assertion failed to establish that the testimony of the Arizona
counsel would actually benefit Jones.
CONCLUSION
Because none of the factors supports Jones’s argument that the district court
abused its discretion when it denied Jones’s request for a continuance, the decision
of the district court is
AFFIRMED.
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