UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                  No. 95-5255

LARRY DEAN DUTTON,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
Terrence W. Boyle, Graham C. Mullen, District Judges.
(CR-94-103-MU)

Submitted: December 26, 1995

Decided: August 5, 1996

Before WILKINSON, Chief Judge, and LUTTIG and MICHAEL,
Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Randolph Marshall Lee, Charlotte, North Carolina, for Appellant.
Mark T. Calloway, United States Attorney, Gretchen C.F. Shappert,
Assistant United States Attorney, Charlotte, North Carolina, for
Appellee.

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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

Larry Dean Dutton appeals from a district court judgment and sen-
tence on a guilty plea for his possession of a firearm as a convicted
felon. We affirm.

Dutton makes clear that he is not attacking the validity of the guilty
plea itself. Dutton complains that the district court erred in not either
granting his motion for a continuance of the sentencing hearing or
ordering an evidentiary hearing regarding his allegation that he was
promised a polygraph examination that was never completed and for
which counsel never received a transcript of the aborted examination.
Counsel wanted to use the transcript to rebut any attacks on Dutton's
credibility by the Government during sentencing.

We find the allegation of error meritless. First, the sentencing had
been continued once. Second, the motion for continuance contained
the information Dutton wanted to use to defend his character. We find
no "`unreasoning and arbitrary insistence on expeditiousness in the
face of a justifiable request for delay.'" United States v. Bakker, 925
F.2d 728, 735 (4th Cir. 1991) (quoting Morris v. Slappy, 461 U.S. 1,
11-12 (1983)). Further, three facts reveal that any error in denying the
motion and not ordering an evidentiary hearing was harmless. First,
Dutton referred to the polygraph evidence in support of his veracity,
and the Government did not refute his characterization of the poly-
graph examination. Second and third, the Government did not use the
information to attack Dutton's credibility, and the district court relied
only on Dutton's extensive criminal history in setting the sentence at
the top of the sentencing range. Thus, any error regarding the denial
of the continuance motion and failure to order a hearing was harmless
and provides no basis for vacatur of the judgment. Fed. R. Crim. P.
52(a).

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Therefore, we affirm the district court order. We dispense with oral
argument because the facts and legal contentions are adequately pres-
ented in the materials before the court and argument would not aid the
decisional process.

AFFIRMED

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