United States v. Armstrong , 154 F. App'x 339 ( 2005 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4238
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
TELLY SURVAR ARMSTRONG,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Richard L. Voorhees,
District Judge. (CR-02-158)
Submitted: October 19, 2005 Decided: November 15, 2005
Before MICHAEL, TRAXLER, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Randolph Marshall Lee, LAW OFFICES OF RANDOLPH MARSHALL LEE,
Charlotte, North Carolina, for Appellant. Gretchen C. F. Shappert,
United States Attorney, Robert John Gleason, Assistant United
States Attorney, Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Telly Survar Armstrong appeals his convictions and
sentence imposed after he pled guilty to two counts of possessing,
carrying and brandishing a firearm during and in relation to a
crime of violence, and aiding and abetting such conduct, in
violation of 18 U.S.C. §§ 2, 924(c) (2000). On appeal, Armstrong’s
counsel filed an Anders1 brief, stating there were no meritorious
issues, but raising the issue of whether the district court denied
Armstrong’s motion to continue sentencing for the purpose of
perhaps receiving a motion by the Government for a downward
departure based upon substantial assistance. Armstrong was advised
of his right to file a pro se supplemental brief, but did not
respond. The Government elected not to file a separate brief. We
affirm.
We review a district court’s decision to deny a motion
for a continuance at sentencing for abuse of discretion. United
States v. Speed, 53 F.3d 643, 644 (4th Cir. 1995). “Because a
district court has broad discretion in scheduling the sentencing
proceeding, ‘[a]bsent a showing both that the denial was arbitrary
and that it substantially impaired the defendant’s opportunity to
secure a fair sentence, we will not vacate a sentence because a
continuance was denied.’” Speed, 53 F.3d at 644-45 (quoting United
1
Anders v. California, 386 U.S. 738, 744 (1967).
- 2 -
States v. Booth, 996 F.2d 1395, 1397-98 (2d Cir. 1993) (internal
quotation marks omitted)).
In Speed, the defendant sought a continuance because he
was interviewed by law enforcement authorities and could be called
to testify. According to the defendant, the likelihood the
Government would file a motion for a downward departure would
increase if he testified at a trial. However, we noted there was
no abuse of discretion because the defendant could not state when
the sentencing should be held or at what trials he may be called to
testify. Likewise, Armstrong could not provide any specific
information about the nature of his assistance except to say he was
providing information about several murders. There was no
indication charges were being brought against individuals as a
result of Armstrong’s information. In addition, the Government
specifically stated Armstrong failed to provide substantial
assistance. Accordingly, we find the court did not abuse its
discretion.2
As required by Anders, we have reviewed the entire record
and have found no meritorious issues for appeal. We therefore
affirm Armstrong’s convictions and sentence. This court requires
2
We have reviewed other potential issues, including the lack
of a competency hearing after receipt of the certificate of
restoration of competency, see 18 U.S.C. § 4241(e) (2000), and the
imposition of restitution despite no finding by a jury or an
admission by the defendant, see United States v. King, 414 F.3d
1329, 1330 n.1 (11th Cir. 2005), and find no plain error.
- 3 -
counsel inform his client, in writing, of his right to petition the
Supreme Court of the United States for further review. If the
client requests that a petition be filed, but counsel believes such
a petition would be frivolous, then counsel may move in this court
for leave to withdraw from representation. Counsel’s motion must
state that a copy thereof was served on the client. 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
- 4 -