                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                      January 11, 2007
                                TENTH CIRCUIT                       Elisabeth A. Shumaker
                                                                        Clerk of Court


 U N ITED STA TES O F A M ER ICA,

              Plaintiff-Appellee,
                                                        No. 05-8111
 v.                                                     (D . of W yo.)
                                                  (D.C. No. 05-CR-77-ABJ)
 GERALD BROW N, a/k/a “Skeet,”

              Defendant-Appellant.



                           OR D ER AND JUDGM ENT *


Before O’BRIEN, SE YM OU R, and TYM KOVICH, Circuit Judges. **




      A federal jury found Gerald Adrian Brown guilty on three counts involving

the distribution of cocaine and cocaine base. On appeal, he contends the district

court 1) abused its discretion by denying three motions for continuance, and 2)

erred by considering evidence of cocaine sales proven only by a preponderance of

the evidence at sentencing. W e find Brown’s claims lack merit and AFFIRM .

      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 (eff. Dec.
1, 2006) and 10th Cir. R. 36.3 (eff. Jan. 1, 2007).
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
                                  I. Background

        In mid-Summer 2004, an informant notified local police officers about a

man dealing crack cocaine in the Cheyenne, W yoming region. The informant

knew the dealer as “Skeet,” a resident of Colorado Springs, Colorado. She agreed

to buy drugs from Skeet while wearing a wire so the police could record the

transactions. Skeet was later identified as the defendant, G erald Adrian Brown.

        On July 19, 2004, the informant and Brown arranged to meet for a purchase

of crack cocaine. Brown later changed the plan and had the informant meet with

one of “his girls,” Brenda Benson, at a new location. The informant purchased

about seven grams of crack cocaine for $350 from Benson. Benson confirmed the

transaction at trial and testified she made the delivery on Brown’s behalf.

        Two days later, on July 21, the informant again arranged to purchase

cocaine from Brown. W hile wearing a wire, she purchased approximately 6.3

grams of powder cocaine from Brown directly. Finally, on August 13, 2004, the

informant made another purchase of crack cocaine from Brown, again wearing a

wire.

        Brown was subsequently charged with 1) one count of aiding and abetting

in the distribution of cocaine base, 2) one charge of distributing cocaine base, and

3) one charge of distributing cocaine. Represented by counsel, Brown pleaded

not guilty on April 22, 2005, and his trial was set for June 28, 2005. On M ay 17,

2005, a new counsel entered an appearance on Brown’s behalf, and the district

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court granted substitution of counsel on M ay 19. On June 2, a fortnight later,

Brown’s new counsel filed a motion to continue the trial. After a hearing on June

15, the district court denied the motion.

      M eanwhile, on June 8 and June 16, the government filed a Request for

Notice of Alibi Defense and an Amended Request for Notice of Alibi Defense,

asking that B row n disclose any alibi witnesses he planned to use at trial. On

June 24, the defense responded to the requests by filing a list of nine potential

alibi witnesses as well as a second motion to continue. The district court denied

the new motion to continue on June 28 and the trial commenced the next day as

scheduled.

      During trial, Brown’s counsel made an oral third motion to continue, citing

problems with locating witnesses and bringing them to trial. The district court

denied the motion. On July 1, after a three-and-one-half-day trial, the jury

returned a guilty verdict on all counts. Brown was subsequently sentenced to 165

months imprisonment, four years of supervised release, a fine of $1,000, and a

special assessment of $300.

                                   II. Discussion

      Brown argues on appeal that the district court 1) abused its discretion by

denying his three motions for continuance, and 2) erred by considering evidence

of cocaine sales proven only by a preponderance of the evidence at sentencing.

A. Denials of M otions for Continuance

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      W e afford substantial discretion to district courts in considering requests to

continue trial. United States v. Rivera, 900 F.2d 1462, 1475 (10th Cir. 1990)

(citing M orris v. Slappy, 461 U.S. 1, 11 (1983)). “W e review the denial of a

motion for continuance of trial for abuse of discretion and will find error only if

the district court’s decision was arbitrary or unreasonable and materially

prejudiced the defendant.” United States v. Diaz, 189 F.3d 1239, 1247 (10th Cir.

1999) (internal quotations omitted).

      In determining whether the trial court abused its discretion in denying a

continuance, we look to four factors, including: 1) the diligence of the party

requesting the continuance, 2) the likelihood the continuance, if granted, would

accomplish the purpose underlying the party’s expressed need for the

continuance, 3) the inconvenience to the opposing party, its witnesses, and the

court resulting from the continuance, and 4) the need asserted for the continuance

and the harm the appellant might suffer as a result of the district court’s denial of

the continuance. Id.

      1. First Request for Continuance

      At the hearing on the first continuance request, Brown’s counsel based his

request on three grounds: 1) at the time, he had not yet received grand jury

transcripts, 2) he thought some discovery might be outstanding, and 3) he

specifically felt more time was needed to respond to the government’s alibi

defense request. In response, the government pointed out the grand jury

                                          -4-
transcripts were readily available from the court reporters and that discovery had

been substantially completed. The district court concluded the motion for

continuance was largely based on the need to respond to the request for alibi

defense information, which it found to be a simple task; therefore, it denied the

motion. The court instead provided the defense an additional eight days to

respond to the alibi notice request.

      Applying the four Diaz factors, w e find the district court did not abuse its

discretion by denying the first continuance request. First, the diligence factor

cuts in favor of neither party. Brown’s counsel sought the continuance a little

over two weeks after taking over the case. W hen counsel entered, he w as aware

only 42 days remained until trial. But he waited 16 days to file his motion for

continuance. W hile a two-week delay is not necessarily tardy, it was not

particularly diligent, given the rapidly approaching trial date.

      The second factor cuts in favor of Brown. The defense requested the

continuance to allow more time for discovery, to acquire grand jury transcripts,

and to respond to the request for alibi witnesses. Pushing the trial date back

would likely provide Brown’s counsel more time to accomplish the stated tasks.

      The government makes no argument that the third factor, inconvenience to

the opposing party and its witnesses, cuts one way or the other. The third factor

will nearly always cut slightly in favor of the opposing party only because there

will inevitably be some inconvenience to rescheduling; thus our relevant query is

                                          -5-
the degree to which the third factor cuts in favor of the opposing party. The

government made no contention its witnesses or its counsel would be particularly

inconvenienced by this motion, so we give this factor little weight.

      M ost relevant is Diaz’s fourth factor: whether Brown’s counsel actually

needed extra time to prepare for trial and whether Brown w as prejudiced as a

result. W hen the motion for continuance was made, 26 days still remained until

trial and 16 days had already passed for counsel to acquire the necessary

transcripts and complete necessary discovery. The defense counsel made no

record to help us assess the need for a continuance or harm from its denial.

Nowhere in the record did the defense demonstrate or argue significant hardship

would arise in accomplishing the necessary tasks in the time allotted without a

grant of the continuance. W ithout more of a record, we have little evidence that

the first denial harmed the defendant, that defense counsel was unable to meet the

original schedule, or that any harm which might exist because of the fixed trial

date was due to anything besides the defense’s tardiness. The burden here is on

the defendant to show abuse of discretion and, and considering the fourth Diaz

factor, the burden is not met.

      Brown urges us to consider that entry of new counsel on M ay 17 favors a

more lenient stance towards the motion. He cites to United States v. King, 664

F.2d 1171 (10th Cir. 1981), where we found the denial of a continuance violated

the defendant’s Sixth Amendment right to effective assistance of counsel. In the

                                         -6-
King case, however, new counsel only had 12 days to prepare for trial— not the 42

days available to new counsel. Id. at 1172. 1 In 12 days, King’s new counsel had

to respond to a complicated government tax evasion case three years in the

making, with a total of almost 200 witnesses and 5,000 exhibits. By comparison,

the case here resembled a routine trial advocacy problem: 1) a two-month

government investigation, 2 2) relatively straight forward facts, and 3) a three-day

trial consisting of nine witnesses, and fourteen exhibits.

      The district court’s denial of B rown’s first motion to continue was no abuse

of discretion.

      2. Second Request for Continuance

      Defense counsel made a second motion for a continuance four days before

trial to secure additional time to contact and arrange for a number of alibi

witnesses to travel from Louisiana to W yoming. At a hearing the morning of

trial, defense counsel offered to call them to testify by telephone if the

continuance was denied. The government objected to the continuance as well as

the telephone testimony, but offered video testimony as an alternative. Defense

counsel then responded, “Your Honor, I certainly would prefer video as well and


      1
       Even the original counsel in the King case had less time to prepare than
new counsel here with only 27 days passing betw een King’s arraignment and trial.
Id.
      2
       The government investigation relevant to Brown occurred during July and
August of 2004. The grand jury indictment issued seven months later in M arch,
2005.

                                          -7-
will try to arrange that and, if not, will address the Court as to whether it can be

by video or telephone.” Aplt. App. Vol. 1 at 86. After the defense counsel’s

concession, the court denied the motion to continue and agreed that video

conference would be acceptable.

      “[W ]hen a continuance is sought to obtain w itnesses, the accused must

show who [][the witnesses] are, what their testimony will be, that the testimony

will be competent and relevant, that the witnesses can probably be obtained if the

continuance is granted, and that due diligence has been used to obtain their

attendance on the day set for trial.” United States v. Johnson, 977 F.2d 1360,

1366 (10th Cir. 1992) (quoting United States v. Harris, 441 F.2d 1333, 1336

(10th Cir. 1971)). Brown again has not met his burden.

      In Brown’s N otice of Alibi, he listed nine witnesses that he intended to

call. W hile citing the testimony of witnesses as important to the defense, none of

the witnesses planned to offer potential alibi evidence for July 19, July 21, or

August 13, the dates of the drug transactions charged against Brown. In fact,

defense counsel conceded that he was waiting until trial to see if any of the

witnesses in the alibi notice were relevant before making an effort to bring them

forw ard. He ultimately sought to bring only two of the witnesses to testify to

Brown’s attendance at a music festival in Louisiana on July 2–4, eventually

moving for a third continuance at trial after he failed to secure their attendance.

The proffered testimony was intended to cast doubt on the validity of statements

                                          -8-
by two of the investigating officers that Brown had been seen in Cheyenne on

July 1, 2004, after he was pulled over for a traffic violation. The witnesses w ould

not, however, directly contradict the officers’ statements and would not provide

an alibi for the dates during which the three drug deals occurred.

      Furthermore, if defense counsel wished to call any of the alibi witnesses

and could not secure their transportation to Cheyenne, then the video conference

alternative remained. At no point did the defense counsel ask for use of the video

conference option or explain that it was unavailable. O n appeal, Brown suggests

the trial’s immediate commencement after denial of his second motion for

continuance meant jury selection prevented counsel from making the

arrangements for a video appearance. But nowhere in the record is there any

indication defense counsel was unable to arrange such a conference.

Additionally, defense counsel was certainly aware that trial was commencing the

next day when he offered video and telephone as alternatives he would explore.

      Accordingly, the denial of the second motion to continue was also well

within the district court’s discretion.

      3. Third Request for Continuance

      Finally, Brow n argues in his reply brief that during trial the district court

improperly denied a third request for a continuance. W e do not consider

arguments raised for the first time in a reply brief. See Anderson v. United States

Dep’t of Labor, 422 F.3d 1155, 1174–75 (10th Cir. 2005) (issues not raised in

                                          -9-
opening brief are waived). Even if we did, Brown has not demonstrated under

Diaz or Harris the importance of the witnesses and the harm created by their

absence.

B. Sentencing

      W e review legal interpretations of the sentencing guidelines and whether a

defendant’s sentence violates the Sixth Amendment de novo. United States v.

M artinez, 418 F.3d 1130, 1133 (10th Cir. 2005); United States v. Dowell, 430

F.3d 1100, 1109 (10th Cir. 2005). W e review any factual findings at sentencing

for clear error. M artinez, 418 F.3d at 1133.

      A jury found Brown guilty of three counts of illegal drug sales involving a

total of 14.5 grams of cocaine and cocaine base. At sentencing, the district court

allowed in evidence of other alleged drug sales by Brown and determined

Brown’s sentence should reflect sales of 1,206 grams or over 1.2 kilos of cocaine

and cocaine base. The defendant argues, in light of United States v. Booker, 543

U.S. 220 (2005), that a question still remains as to what evidentiary burden

should be used at sentencing to make findings in addition to those found by a jury

at trial. Defendant argues for a standard higher than the preponderance of the

evidence used by the district court.

      W e made clear, however, in United States v. M agallanez, 408 F.3d 672,

684–85 (10th Cir. 2005), that a district court is not bound by the findings of the

jury at sentencing. Rather, sentencing facts are based on the evidence and

                                         -10-
testimony presented at sentencing under a preponderance of the evidence

standard. As a result, Brown’s argument fails and the district court’s findings

regarding drug quantities are tested for clear error. 3 There is no clear error here.

                                   III. Conclusion

      For the foregoing reasons, we find no merit in defendant’s contentions the

district court abused its discretion by denying his multiple continuance motions.

In light of our holding in M agallanez, we also deny his claim of sentencing error.

The district court is AFFIRM ED on all counts.

                                                     Entered for the Court

                                                     Timothy M . Tymkovich
                                                     Circuit Judge




      3
        In his reply brief, defendant appears to concede the argument and raises a
new issue. He suggests the preponderance of the evidence standard did not
support the sentencing judge’s finding that he possessed a firearm in connection
with his drug dealing activity. Thus, the sentencing judge should not have added
a two-level increase under the sentencing guidelines. This issue is w aived as it
was not raised in the opening brief. See Anderson, 422 F.3d at 1174–75
(discussing the reason for this rule). But even if we were inclined to ignore the
waiver, the high standard of clear error review would not allow us to overturn the
judge’s ruling that the .45 caliber clip and bullets carried by Brown were in
connection with drug dealing and supported the firearm enhancement.

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