United States v. Vela ( 2022 )

Case: 22-40090 Document: 00516553129 Page: 1 Date Filed: 11/21/2022
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
No. 22-40090 FILED
Summary Calendar November 21, 2022
Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Veronica Vela,
Defendant—Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:15-CR-760-1
Before Davis, Smith, and Dennis, Circuit Judges.
Per Curiam:*
In 2016, Veronica Vela pleaded guilty to conspiracy to commit health
care fraud, in violation of 18 U.S.C. § 1349, and was ultimately sentenced, in
February 2022, to 87 months of imprisonment, followed by a three-year term
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 22-40090 Document: 00516553129 Page: 2 Date Filed: 11/21/2022
No. 22-40090
of supervised release. She was also ordered to pay $3,505,886.25 in
restitution.
As her sole issue on appeal,1 Vela argues that the district court erred
in denying her seventeenth motion to continue sentencing. She asserts that
she needed more time to locate and secure her expert witness, certified public
accountant Josefina Mireles, who had prepared a report challenging the
Government’s loss amount calculation. Vela argues that because Mireles’s
testimony was critical regarding loss amount, the court’s refusal to give her
more time to locate her expert witness effectively deprived her of
a meaningful defense at sentencing.
We review the denial of a motion for a continuance for an abuse of
discretion that seriously prejudices the defendant.2 When reviewing a denial
of a continuance, we consider the totality of the circumstances, including: (1)
“the amount of time available,” (2) “the defendant’s role in shortening the
time needed,” (3) “the likelihood of prejudice from denial,” (4) “the
availability of discovery from the prosecution,” (5) “the complexity of the
case,” (6) “the adequacy of the defense actually provided at trial,” and (7)
“the experience of the attorney with the accused.”3
1
Vela briefs no argument challenging the district court’s loss amount finding, nor
does she challenge the offense level or restitution calculations which were based on that
finding, and she has therefore abandoned any such challenge. See United States v. Scroggins,
599 F.3d 433, 446-47 (5th Cir. 2010); Beasley v. McCotter, 798 F.2d 116, 118 (5th Cir. 1986)
(per curiam).
2
See United States v. Stalnaker, 571 F.3d 428, 439 (5th Cir. 2009) (applying
standard to a district court’s denial of a trial continuance); United States v. Peden, 891 F.2d
514, 519 (5th Cir. 1989) (applying standard to a district court’s denial of a sentencing
continuance).
3
Stalnaker, 571 F.3d at 439.
2
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No. 22-40090
As an initial matter, Vela wholly fails to address or challenge the
reasons the district court gave for denying a continuance, which included that
the case had been pending for almost seven years, that sentencing had been
reset too many times at Vela’s request, and that, although she sought to
secure Mireles as a witness, she gave no explanation regarding what efforts,
if any, she had made to locate Mireles. Vela has therefore abandoned any
such challenge.4
Even had Vela briefed such argument, it would be unavailing. Under
the totality of the circumstances, the district court’s decision not to grant
Vela a seventeenth continuance was neither arbitrary nor capricious.
Significantly, Vela had been granted sixteen previous continuances,
including a continuance to enable her to locate Mireles. Moreover, Vela had
five years to prepare for sentencing, including more than three years with her
most recent counsel and with the benefit of Mireles’s report. 5 Finally, Vela
offered no reasons explaining what efforts, much less diligent efforts, had
been made to locate Mireles, why they were unsuccessful, or why another
continuance would cause her to succeed in locating Mireles or securing her
testimony at sentencing.6
Vela’s claim additionally fails for lack of serious or compelling
prejudice. Vela does not and cannot demonstrate how the denial of her
motion for a continuance prejudiced her case when the court considered the
4
See Scroggins, 599 F.3d at 446-47; Beasley, 798 F.2d at 118.
5
See Stalnaker, 571 F.3d at 439; United States v. Messervey, 317 F.3d 457, 462 (5th
Cir. 2002) (finding the district court did not abuse its discretion in denying defendant a
fifth continuance).
6
See United States v. Shaw, 920 F.2d 1225, 1230 (5th Cir. 1991) (holding that the
district court did not abuse its discretion in denying defendant’s motion for a continuance
based upon the unavailability of a witness).
3
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No. 22-40090
expert report despite Mireles’s failure to testify in person. As the district
court explained at sentencing, because it considered the report but found it
to be unreliable, any testimony Mireles would have offered in support of the
report would have made no difference to the outcome of Vela’s sentence. 7
Vela has not demonstrated an abuse of discretion on the district
court’s part.8 Accordingly, the district court’s judgment is AFFIRMED.
7
Id. at 1231.
8
See Stalnaker, 571 F.3d at 439.
4