United States v. Swain

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4223
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MITCHELL SWAIN,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Greenville. James C. Dever III,
District Judge. (4:07-cr-00062-D-1)
Submitted: January 21, 2010 Decided: February 25, 2010
Before NIEMEYER, MICHAEL, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Marilyn G. Ozer, MASSENGALE & OZER, Chapel Hill, North Carolina,
for Appellant. George E. B. Holding, United States Attorney,
Anne M. Hayes, Jennifer P. May-Parker, Assistant United States
Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Mitchell Swain appeals the 324-month sentence imposed
by the district court after he pled guilty, pursuant to a plea
agreement, to one count of conspiracy to distribute and possess
with intent to distribute more than fifty grams of crack cocaine
and a quantity of cocaine, in violation of 21 U.S.C. §§ 846,
841(a)(1) (2006). On appeal, Swain argues that the district
court abused its discretion and violated his right to counsel by
denying his motion for a continuance, which allowed counsel only
four days to prepare for sentencing. The Government responds in
support of the district court’s decision. We affirm.
“[A] trial court's denial of a continuance is . . .
reviewed for abuse of discretion; even if such an abuse is
found, the defendant must show that the error specifically
prejudiced h[is] case in order to prevail.” United States v.
Hedgepeth, 418 F.3d 411, 419 (4th Cir. 2005). “[B]road
discretion must be granted trial courts on matters of
continuances; only an unreasoning and arbitrary insistence upon
expeditiousness in the face of a justifiable request for delay
violates the right to the assistance of counsel.” Morris v.
Slappy, 461 U.S. 1, 11-12 (1983) (internal quotation marks
omitted). A district court need not grant a continuance “where
the request for it plausibly can be viewed as simply a delaying
tactic or as otherwise unreasonable.” United States v. Attar,
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38 F.3d 727, 735 (4th Cir. 1994). In the context of sentencing,
“[a]bsent a showing both that the denial was arbitrary and that
it substantially impaired the defendant’s opportunity to secure
a fair sentence, [this court] will not vacate a sentence because
a continuance was denied.” United States v. Speed, 53 F.3d 643,
644-45 (4th Cir. 1995) (quoting United States v. Booth, 996 F.2d
1395, 1397-98 (2d Cir. 1993)) (internal quotation marks
omitted). Our review of the record leads us to conclude that
the district court did not abuse its discretion in denying the
requested continuance.
Accordingly, we affirm Swain’s sentence. We dispense
with oral argument because the facts and legal contentions are
adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
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