                                                            NOT PRECEDENTIAL

                          UNITED STATES COURT OF APPEALS
                               FOR THE THIRD CIRCUIT
                                    _____________

                                      No. 09-2893
                                     _____________

                            UNITED STATES OF AMERICA

                                            v.

                                   DARREN CEPHAS,
                                            Appellant
                                    _____________

                        Appeal from the United States District Court
                          for the Eastern District of Pennsylvania
                          (D.C. Criminal No. 2-08-cr-00163-001)
                       District Judge: Honorable Michael M. Baylson
                                       _____________

                        Submitted Under Third Circuit LAR 34.1(a)
                                    January 24, 2011

        Before: McKEE, Chief Judge, RENDELL and STAPLETON, Circuit Judges.

                             (Opinion Filed: February 3, 2011)
                                     _____________

                               OPINION OF THE COURT
                                   _____________

RENDELL, Circuit Judge.

      Darren Cephas appeals from his conviction of, and sentence for, three offenses

involving the possession of cocaine and a firearm. He was convicted by a jury and

thereafter sentenced by the District Court to the mandatory minimum of 120 months on

the drug count, a concurrent sentence of 13 months on the charge of being a felon in
possession of a firearm, and a mandatory consecutive term of 60 months for possession

of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c).

       Cephas raises two arguments on appeal, one of which has been foreclosed by the

recent opinion of the United States Supreme Court in United States v. Abbott, 131 S. Ct.

18 (2010). There, the Supreme Court held that the 5 year mandatory sentence set forth in

18 U.S.C. § 924(c) must run consecutively to any other mandatory sentence provided by

statute (subject to an exception not applicable here). Id. at 23. Accordingly, Cephas’s

argument that the language of 18 U.S.C. § 924(c)(1)(A) should be interpreted such that

the five year maximum does not apply to a defendant subject to a ten year mandatory

minimum for the same drug transaction, must fail.

       Cephas also challenges the District Court’s denial of his request for an additional

continuance to secure the presence of a “star witness,” which, he urges, resulted in a

miscarriage of justice. Cephas posits that because the government’s case against him was

based on his being the sole occupant of the house where the contraband was seized, it

was essential that the witness be allowed to testify that she and Brian Bradley had a

relationship at that house, that she saw Bradley with a dark book bag, and that Bradley

was shot and killed a few days after the police search and seizure at the house.

       In the afternoon of the second day of trial, the District Court granted a request to

continue the trial until the next morning so the witness could be present. Counsel stated

that if he could not then produce the witness, he would rest. The next morning defense


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counsel requested a further continuance stating that the witness was still unavailable, but

he did not indicate when she could be produced. The Court noted counsel’s previous

statement that if the witness was not present he would proceed, and denied a further

continuance. Counsel did not protest this ruling.

       We review the District Court’s ruling for abuse of discretion and find no abuse.

See United States v. Olfano, 503 F.3d 240, 245 (3d Cir. 2007). The District Court’s

decision to hold counsel to his previous representation was reasonable.         Moreover,

counsel did not indicate when the witness could be present, nor how she was unavailable,

thus leaving the Court with the prospect of an open-ended continuance, with attendant

delay, and inconvenience to the jurors. In addition, counsel did not protest the Court’s

ruling or offer further argument or information as to the need for her testimony, or when

she could be produced. Also, this testimony would have been cumulative of other

evidence in the record that Cephas had rented the house to Bradley and Cephas was not

living there at the time in question.

       We conclude that the District Court’s refusal was not unreasonable.         To the

contrary, given counsel’s lack of knowledge as to the witness’s whereabouts and

availability, it would have been unusual, if not unreasonable, for the Court to grant an

open-ended continuance, especially after counsel had indicated a willingness to proceed

without her the previous day. Accordingly we find no abuse of discretion by the District

Court, and we will affirm the judgment of conviction and sentence.


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