United States v. Brunson ( 1996 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 96-4138
GILROY LAMAR BRUNSON, a/k/a
Gilroy Brunson, a/k/a Lamar
Brunson,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 96-4139
GILROY LAMAR BRUNSON, a/k/a
Gilroy Brunson, a/k/a Lamar
Brunson,
Defendant-Appellant.
Appeals from the United States District Court
for the Eastern District of Virginia, at Norfolk.
Richard B. Kellam, Senior District Judge.
(CR-92-57-N, CR-92-101-N)
Submitted: September 17, 1996
Decided: October 11, 1996
Before WILKINS, HAMILTON, and MICHAEL, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
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COUNSEL
Andrew I. Becker, DIAMONSTEIN, BECKER & STANLEY,
P.L.C., Virginia Beach, Virginia, for Appellant. Helen F. Fahey,
United States Attorney, Harvey L. Bryant, III, Assistant United States
Attorney, Norfolk, Virginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Gilroy Lamar Brunson appeals from the district court's orders
revoking his supervised release and sentencing him to two concurrent
twelve-month terms of imprisonment. Brunson claims that the district
court erred by failing to consider the policy statements contained in
Chapter 7 of the Sentencing Guidelines* and by denying a continu-
ance of the hearing date.
Brunson pled guilty in February 1993 to filing false claims upon
the Internal Revenue Service (18 U.S.C. § 287 (1994)), wire fraud (18
U.S.C. § 1343 (1994)), and removal of bankruptcy court records (18
U.S.C. § 2071(a) (1994)) and was sentenced to two thirty-three month
prison terms, to run concurrently. Brunson's sentence included a
three-year term of supervised release.
Brunson's three-year period of supervised release began on June
22, 1995. On November 21, 1995, his probation officer filed a peti-
tion alleging violations of several conditions of supervised release: (1)
commission of three crimes (felony larceny, misdemeanor assault and
battery, and violation of a protective order); (2) failure to report to his
_________________________________________________________________
*United States Sentencing Commission, Guidelines Manual (Nov.
1995).
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probation officer as directed; and (3) failing to follow instructions of
his probation officer (failure to make proper restitution payments and
failure to register as a felon with the Virginia Beach Police Depart-
ment).
The initial hearing was set for December 14, 1995. However, Brun-
son's retained attorney was allowed to withdraw and the hearing was
continued until December 19th. Brunson's new retained attorney
requested a continuance and the hearing was continued until Decem-
ber 28th. Again, however, Brunson's attorney was allowed to with-
draw because he would not be available on that date. The district
court appointed counsel for Brunson and granted a continuance until
January 3, 1996.
At the January 3rd hearing, Brunson's attorney requested yet
another continuance. The district court denied the motion so that the
witnesses who were present could testify, but agreed to set another
hearing date in order to allow Brunson to present more witnesses.
Brunson's attorney stated that he wished to call four more witnesses
at the next hearing, which was originally set for January 17th but
which ultimately took place on January 31st. During the interim,
Brunson's probation officer filed an addendum to the petition alleging
additional violations of the terms of his supervised release (failure to
notify his probation officer of his arrest on January 4, 1996, on four
counts of writing worthless checks). At the January 31st hearing,
Brunson's attorney stated that he was ready to proceed but that he
would not be calling any witnesses. After hearing testimony from the
probation officer and from Brunson, the district court imposed two
twelve-month sentences, to run concurrently. Brunson's attorney
noted no objections to the sentence.
Brunson appeals, claiming (1) that the district court failed to con-
sider the policy statements contained in USSG § 7B1.4; and (2) that
the district court erred in denying his attorney's request for a continu-
ance at the beginning of the January 3rd hearing. We find both claims
to be without merit.
First, this court has specifically held that the Chapter 7 policy state-
ments are non-binding and advisory only, United States v. Davis, 53
F.3d 638, 642 (4th Cir. 1995). In any event, Brunson does not show
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how the policy statements would affect his sentence. In fact, the dis-
trict court sentenced Brunson within the range provided by § 7B1.4
for a Grade B violation, Criminal History Category III (eight to four-
teen months).
Second, this court reviews a district court's decision to deny a con-
tinuance of trial for abuse of discretion. Ungar v. Sarafite, 376 U.S.
575, 589 (1964). To prevail, the defendant must show that the denial
prejudiced his case. United States v. LaRouche , 896 F.2d 815, 823
(4th Cir.), cert. denied, 496 U.S. 927 (1990). Brunson fails to show
how he was prejudiced by the district court's decision to hear testi-
mony on January 3rd of the witnesses who were present especially in
light of the fact that the district court did, in fact, grant a continuance
to allow Brunson to call additional witnesses.
Accordingly, we affirm Brunson's sentences. 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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