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The Honorable Henry Woods, United States District Judge for the Eastern

District of Arkansas.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 01-3151

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United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the

* Eastern District of Arkansas.

David Lane McGlothlin, * [UNPUBLISHED]

*

Appellant. *

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 Submitted: January 4, 2002

 Filed: January 14, 2002

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Before WOLLMAN, Chief Judge, LOKEN, and HANSEN, Circuit Judges.

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PER CURIAM.

In this appeal following remand for resentencing, David McGlothlin challenges

the district court’s1

 denial of his motion for a continuance, and the court’s imposition

of a restitution-payment schedule. We affirm.

In February 2000 McGlothlin pleaded guilty to theft and firearm-related

offenses. The court sentenced him to imprisonment and supervised release, and

ordered him to pay “in full immediately” $97,724.49 in restitution and a $1,300
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special assessment. Special instructions in the judgment provided that “beginning the

first month of supervised release, payments will be a minimum of 10 percent of the

defendant’s net monthly household income.” After the court denied McGlothlin’s

request for a repayment schedule for the time he was to be imprisoned, McGlothlin

appealed. We vacated and remanded the restitution order, with instructions for the

district court to impose a detailed schedule of restitution payments to commence

during incarceration. See United States v. McGlothlin, 249 F.3d 783, 785 (8th Cir.

2001).

The day before his resentencing hearing, McGlothlin moved for a continuance.

At the hearing, he testified that he had prepared legal documents but had been

prevented from mailing them to his attorney or bringing them to the hearing.

McGlothlin’s counsel indicated that his client had wanted to make an analogy to a

federal garnishment statute. The court replied, “I don’t think that’s applicable here,”

and denied the continuance motion. Concerning restitution payments, the

government requested a monthly payment of 50% of the funds “available” to

McGlothlin, whereas McGlothlin sought to make payments of only 25% of his

“earnings” so that he could save at least $1,200 for use following incarceration. The

court selected 50% of McGlothlin’s earnings as a reasonable amount for his payments

during incarceration, and this appeal followed.

We conclude that the district court did not abuse its discretion in denying the

motion for a continuance: the hearing was not complex, McGlothlin’s counsel did

not argue that he lacked adequate time to prepare, and McGlothlin failed to prove

resulting prejudice. See United States v. Allen, 247 F.3d 741, 771 (8th Cir. 2001)

(standard of review; moving party must be prejudiced by denial of motion to

continue); United States v. Little, 567 F.2d 346, 348-49 (8th Cir. 1977) (factors in

considering motion for continuance), cert. denied, 435 U.S. 969 (1978).
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We also conclude that the district court did not abuse its discretion in setting

the restitution payments, based on the figures McGlothlin provided to the court

regarding his monthly income and estimated expenses. See 18 U.S.C.

§ 3664(f)(2)(B)-(C) (court shall consider defendant’s projected earnings and financial

obligations); United States v. Riebold, 135 F.3d 1226, 1231 (8th Cir.) (standard of

review), cert. denied, 524 U.S. 944 (1998).

The judgment is affirmed.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.