* Hon. Walter Herbert Rice, United States District Judge for the Southern District of Ohio, sitting by designation. NOT RECOMMENDED FOR PUBLICATION File Name: 05a0467n.06 Filed: June 6, 2005 NO. 04-1504 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, ) ) ) Plaintiff-Appellee, ) ) ) ON APPEAL FROM THE UNITED v. ) STATES DISTRICT COURT FOR THE ) EASTERN DISTRICT OF MICHIGAN ) BROOK BYRON ELLIS, ) ) ) Defendant-Appellant, )

______________________________________ BEFORE: DAUGHTREY and GILMAN, Circuit Judges, and RICE, *District Judge.

PER CURIAM. The defendant , Brook Byron Ellis, appeals from the district court’s order finding that he was in violation of two conditions of his supervised release and sentencing him to 11 months’ incarceration. At the revocation hearing in the district court, Ellis pleaded guilty to charges both that he had been arrested and convicted of assault and battery in state court and that he had failed to report the arrest to his probation officer in a timely manner. Despite the guilty pleas, E llis claims on appeal that he was “denied due process rights in the underlying supervised re lease revocation hearing when the [district]- 2 - court refused to allow or consider witness te stimony to support his c ontention that a crime was not committed and that the circumstances did not warrant revocation of supervised release.” We find no due process violation and affirm.

Ellis had been convicted of bank robbery, completed hi s sentence of 151 months, and was released to serve three years of supervised release. He returned home to live with his ex-wife and their fourchildren. During the children’s Christmas vacation some three months after Ellis’s release from pr ison, he became involved in an argument with his 18-year-old son that escalated into a physica l altercation when, according to a statement given to police by the defendant’s daughter, the defendant said to his son, “Let’s take this outside.” Out in the yard, the daughter saw her father hit her brother, striking him in the face and the stomach, and called police. She later told them thatthe defendant had come back into the house, grabbed a steak kn ife and a metal pipe, and headed outdoors. Fortunately, the defendant’s son had left the yard, ending the altercation before the police arrived on the scene. They neverthele ss arrested the defendant, charging him with assaulting his son, based on the report given by his daughter, and took him into custody. By the time Ellis was released the next day, both his son and his daughter had left the state to go back to college.
Represented by appointed counsel in state court, Ellis pleaded guilty to assault and battery, purportedly based on a desire to prot ect his son and because he received “bad advice” from his attorney. And despite his son’s statement to polic e that Ellis had struck the first blow, by the time the defendant appeared at the revocation hearing in federal court, he claimed that if they could be present, hi s son and daughter would both testify that the- 3 - son instigated the altercation and threw the fi rst punch, that no weapons were involved, and that the son gave a false stat ement to police because he did not want to be blamed for starting the fight with his fat her. Ellis did not account for the damaging statements that his daughter had also given police.
Counsel for Ellis asked for an adjournment in order to secure the presence of the two children as witnesses and offe red, in lieu of a continuance, to submit statements that he had taken from them that he wished to have t he court consider in mitigation. The district judge indicated thatthe defendant was welcome to submit the statements as mitigation evidence, saying:
[They] would not be helpful to me veryfrankly. I understand his position, and I understand from reading the [ police] report . . . . His position is that he [pleaded guilty] to protect his son. He was not the aggressor. It was his son who was the aggressor, and so I underst and his position, and I expect if you call witnesses, they would affirm what he is saying.
Following the defendant’s statement to the court concerning the altercation with his son, the district judge commented, “Common sense dictates that even if your son is the aggressor – and I listened to you as you say y ou cared about your son – even if he is the aggressor, as a parent, you walk away rather than get into a physical altercation . . . .”
We note, first of all, that there was no timely written motion for a continuance of the revocation hearing. Nor has there been a showi ng of actual prejudice . Although there are “no mechanical tests for deciding when a denial fo r continuance is so arbi trary as to violate due process,” the Sixth Circuit has laid outspecific guidelines for determining what- 4 - constitutes an abuse of discretion. United States v. Frost , 914 F.2d 756, 765 (6th Cir. 1990) (citations omitted). In United States v. King , we held:

The denial of a defendant’s motion for a continuance amounts to a constitutional violation only if there is an unreasoning and arbitrary insistence upon expeditiousness in the face of a justifiable request for delay. To demonstrate reversible error, the defendant must show that the denial resulted in actual prejudice to his defense.
127 F.3d 483, 486-87 (6th Cir. 1997) (citations omitted) (inter nal quotation marks omitted). The defendant has not shown that the district court abused its discretion under this standard. The fact of the matter is that Ellis had been arrested for assault and battery, had failed to make a timely report of the arrest to his probation officer, had pleaded guilty to the crime of assault and battery, and thus indis putably had violated the conditions of his supervised release. The distri ct judge explained that, regardle ss of the mitigating evidence Ellis might present about the circumstances ofthe fight, the judge would “still have to look at it as a violation [to which] he pled guilty.” Mitigation asi de, the mere existence of the conviction constituted a violation of supervis ed release. To complicate the matter, there was also the fact that Ellis had admittedly fa iled to comply with t he reporting requirements of his conditional release, c onstituting an additional violation.
The defendant could not legally undertake a collateral attack upon the state conviction and, on the facts, the district court clearly understood the thru st of the mitigation argument and gave that argument what weight it t hought appropriate. The record fails to reflect an abuse of discretion in this regard. We have reviewed the other issues raised on- 5 - appeal and find no merit to them. We therefore AFFIRM the judgment ofthe district court in all respects.