                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 11a0317n.06
                                                                                            FILED
                                            No. 09-4044
                                                                                       May 13, 2011
                           UNITED STATES COURT OF APPEALS                        LEONARD GREEN, Clerk
                                FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                         )
                                                  )
       Plaintiff-Appellee,                        )
                                                  )
v.                                                )    ON APPEAL FROM THE UNITED
                                                  )    STATES DISTRICT COURT FOR THE
RODGERICK LAMONT McMAHON,                         )    SOUTHERN DISTRICT OF OHIO
                                                  )
       Defendant-Appellant.                       )
                                                  )

Before: BATCHELDER, Chief Judge, COLE, and GIBBONS, Circuit Judges.

       JULIA SMITH GIBBONS, Circuit Judge. Rodgerick McMahon pled guilty to possession

of crack cocaine with intent to distribute and possession of a firearm in furtherance of a drug

trafficking crime. He appeals his sentence of seventy-seven months’ imprisonment on the drug

charge. McMahon claims the district court abused its discretion in electing not to continue the

sentencing hearing until pending federal legislation had been passed by Congress and signed into

law, which would have reduced the mandatory-minimum sentence McMahon faced. For the reasons

discussed below, we affirm the decision of the district court.

                                                  I.

       On February 25, 2009, Springfield, Ohio, police officers observed a maroon truck fail to

signal a turn in a timely manner. As the officers activated lights to initiate a traffic stop, McMahon

and two other occupants inside the truck exited the vehicle and fled on foot. While ordering

McMahon to stop, an officer witnessed him pick up a firearm, later identified as a loaded .45 caliber
United States v. McMahon
No. 09-4044

semi-automatic handgun, which had slipped from his waistband. The officers subdued McMahon

and handcuffed him, at which time McMahon voluntarily stated that he had a gun and crack cocaine

on his person. The officers recovered the gun and 7.6 grams of crack cocaine from McMahon, who

was then arrested.

          A federal grand jury indicted McMahon on five counts: (1) possession with intent to

distribute five grams or more of crack cocaine, in violation of 21 U.S.C. § 841(a)(1); (2) carrying

a firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A);

(3) possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C.

§ 924(c)(1)(A); (4) possession of at least five grams of crack cocaine, in violation of 21 U.S.C.

§ 844(a); and (5) possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1).

Pursuant to a plea agreement, McMahon pled guilty to counts one and three of the indictment, and

the government moved to dismiss the remaining counts. McMahon’s guilty plea was entered on May

7, 2009. Based on the offense level (21) and McMahon’s criminal history category (VI), McMahon

faced a mandatory-minimum sentence of sixty months’ imprisonment and a recommended sentence

of seventy-seven to ninety-six months’ imprisonment based on the Sentencing Guidelines for the

drug charge. He also faced a mandatory consecutive sentence of at least sixty months for the firearm

charge.

          Sentencing was originally scheduled for July 23, 2009, but a sentencing hearing was not held

(for reasons unclear from the record) until August 20, 2009. At the hearing, McMahon’s counsel

focused on the disparity in federal criminal penalties between crack and powder cocaine, including

the disparity in mandatory-minimum sentences. Counsel then raised the issue of “continuing the

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United States v. McMahon
No. 09-4044

sentencing while we see what happens with legislation” being considered by Congress that would

reduce the mandatory-minimum sentences for crack cocaine offenses; McMahon himself also raised

the disparity issue and the possibility of delaying the sentencing with the court. The district court,

however, elected not to delay sentencing, on the grounds that (1) the passage of new legislation by

Congress was not predetermined and (2) the court’s belief that, should legislation be passed, it would

be made retroactive.

        The district court then considered McMahon’s criminal history and other relevant factors for

sentencing under 18 U.S.C. § 3553(a). The court noted that McMahon’s criminal history included

a long history of narcotics sales, convictions for fleeing and eluding officers, and five separate terms

of imprisonment. Based on McMahon’s history, particularly the risks associated with his proclivity

for fleeing officers, the court concluded that “the public has reason to fear for its safety because of

this Defendant.” While the district court agreed that the “unreasonable disparity between crack

cocaine and powdered cocaine” sentences should not be overlooked, the court also noted that

McMahon’s crack cocaine possession was not the only issue before the court.1 Consequently, the

district court imposed a sentence of seventy-seven months’ imprisonment. The district court also

imposed a sentence of sixty months’ imprisonment based on Count 3, with the terms to be served

consecutively.




       1
         The court went so far as to say that “[w]ere the only issue before the Court on Count 1 the
crack-powder[] disparity, it would have absolutely no difficulty in departing or varying from the
applicable no-longer-binding sentencing range . . . .”

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United States v. McMahon
No. 09-4044

                                                   II.

        The district court had subject-matter jurisdiction under 18 U.S.C. § 3231, as McMahon was

charged with federal crimes. This court has appellate jurisdiction under 28 U.S.C. § 1291. This

court reviews a district court’s denial of a motion for continuance for abuse of discretion. United

States v. Warshak, 631 F.3d 266, 298 (6th Cir. 2010); United States v. King, 127 F.3d 483, 486 (6th

Cir. 1997).

        In Ungar v. Sarafite, the Supreme Court noted that “[t]he matter of continuance is

traditionally within the discretion of the trial judge.” Ungar v. Sarafite, 376 U.S. 575, 589 (1964).

The outer limit of a district court’s discretion is set by the constitutional requirements of due process;

“a myopic insistence upon expeditiousness in the face of a justifiable request for delay can render

the right to defend with counsel an empty formality.” Id. The Ungar Court eschewed any test for

determining when such a violation had occurred, however, recognizing that the inquiry must be a

fact-specific one. Id. at 589–90.

        In this case, McMahon argues that the court’s abuse of discretion arose from its refusal to

grant a continuance even when “presented with compelling arguments that the political climate was

shifting towards eliminating the unwarranted crack/powder 100:1 ratio.” McMahon, however, offers

no cases in support of the proposition that a judge must wait to see the outcome of an ongoing

political discussion. In contrast, the Third Circuit recently rejected the notion that a court should

pace sentencing proceedings in order to allow for the political branches to act. See United States v.

Bonner, No. 09-2352, 2010 WL 226351, at *3 (3d Cir. Jan. 21, 2010) (unpublished) (“[I]t would be

inappropriate for the Court to hold off . . . simply because of the chance that Congress may pass and

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United States v. McMahon
No. 09-4044

the President may sign legislation at some unknown point in the future that turned out to be

beneficial to the Appellant.”). The Bonner court’s opinion is persuasive; judicial economy would

be at great risk should the court postpone proceedings every time a bill relating to the subject matter

before the court was pending.

       Moreover, it is not evident that, had the change in law taken place before McMahon was

sentenced, the district court would have altered its sentence. “To demonstrate reversible error [as

to the denial of a continuance], the defendant must show that the denial resulted in actual prejudice

to his defense.” Warshak, 631 F.3d at 298 (internal quotation marks and citations omitted). While

the district court selected the lower end of the Sentencing Guidelines’ recommendation, it imposed

a sentence eleven months longer than the mandatory minimum under the previous § 841(a)(1)

provision. At the sentencing hearing, the district court emphasized repeatedly that it was motivated

out of a concern for public safety, based on McMahon’s criminal history and repeated incarcerations.

These concerns do not dissipate based on legislative reform.

       In sum, the district court did not abuse its discretion when it decided to refuse McMahon’s

request for a continuance based on the possibility of legislative reform. The district court is not

required to wait to see the outcome of ongoing political debates; moreover, McMahon has failed to

show that a continuance would have actually affected his sentence.

                                                 III.

       For the foregoing reasons, the decision of the district court is affirmed.




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