United States v. Avens ( 1998 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4056
COREY M. AVENS,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Marvin J. Garbis, District Judge.
(CR-96-383)
Submitted: February 17, 1998
Decided: March 3, 1998
Before WIDENER and MURNAGHAN, Circuit Judges, and
BUTZNER, Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
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COUNSEL
Janis R. Harvey, LAW OFFICE OF JANIS R. HARVEY, P.A., Balti-
more, Maryland; Roland Walker, WALKER, VANBAVEL, AMA-
RAL & MEAD, P.A., Baltimore, Maryland, for Appellant. Lynne A.
Battaglia, United States Attorney, Thomas M. DiBiagio, Assistant
United States Attorney, Baltimore, Maryland, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Corey M. Avens pleaded guilty to one count of accessory after the
fact in violation of 18 U.S.C. § 3 (1994) and was sentenced to three
years' probation. On appeal, Avens contends that the court's denial
of his motion for a continuance violated his due process rights under
the Fifth and Fourteenth Amendments and his Sixth Amendment right
to effective assistance of counsel. We affirm the conviction and sen-
tence.
Avens, an ensign in the United States Navy, along with several oth-
ers, was indicted for conspiring to transport, possess, receive, and sell
stolen motor vehicles in violation of 18 U.S.C.§§ 371, 2312, 2313
(1994). The conspiracy involved stealing cars from New York, trans-
porting them to Maryland, retitling them fictitiously, and reselling
them for profit.
Avens filed a motion for a continuance on September 30, 1996,
alleging that counsel, due to other court commitments, did not have
adequate time to prepare Avens's case for trial. Having already
granted one motion for a continuance, albeit not on request of Avens,
the court denied the motion on October 1, 1996, finding that Avens
knew by at least September 6, 1996, that he was going to be tried if
he did not plead, and was therefore afforded sufficient trial prepara-
tion time. In accordance with a plea agreement, Avens ultimately
pleaded guilty to aiding and abetting.
The denial of a motion for a continuance is reviewed for an abuse
of discretion. See Morris v. Slappy, 461 U.S. 1, 11-12 (1983). A
denial that constitutes "an unreasoning and arbitrary `insistence upon
expeditiousness in the face of a justifiable request for delay'" is both
abusive and violates an accused's Sixth Amendment right to assis-
tance of counsel. Id. (quoting Ungar v. Sarafite, 376 U.S. 575, 589
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(1964)). In order to prove an abridgement of the right to effective
assistance, however, a defendant must show that the denied continu-
ance "specifically prejudiced" his case. See United States v. Larouche,
896 F.2d 815, 823 (4th Cir. 1990). Furthermore, due process protec-
tions are implicated only when the denial is arbitrary and fundamen-
tally unfair. See United States v. Sellers, 658 F.2d 230, 231 (4th Cir.
1981).
Avens does not dispute the trial court's finding that he knew by
September 6, 1996, that he would be tried on October 21, 1996, in the
absence of a plea. We do not find that the court's denial constituted
"an unreasoning and arbitrary insistence upon expeditiousness in the
face of a justifiable request for delay." With respect to Avens's con-
tention that trial counsel did not have time to adequately prepare for
trial, Avens presents no evidence that the denial specifically "preju-
diced" his case. See United States v. Lorick , 753 F.2d 1295, 1297 (4th
Cir. 1985) (holding that counsel's failure to make a concrete showing
of either specific prejudice or exculpatory evidence to be sought dur-
ing the requested delay precluded a finding of abuse of discretion in
the court's denial of a motion for a continuance).
Accordingly, we affirm Avens's conviction and sentence. We dis-
pense with oral argument because the facts and legal contentions are
adequately presented in the materials before the court, and oral argu-
ment would not aid the decisional process.
AFFIRMED
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