FILED 

U.S. COURT OF APPEALS

 ELEVENTH CIRCUIT 

 March 17, 2006 

 THOMAS K. KAHN 

 CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 05-14817

Non-Argument Calendar

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D. C. Docket No. 04-20854-CR-PAS

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

versus 

SAMUEL THOMAS JONES, 

Defendant-Appellant. 

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Appeal from the United States District Court

for the Southern District of Florida

_________________________

(March 17, 2006)

Before BLACK, BARKETT and PRYOR, Circuit Judges.

PER CURIAM:

Samuel Thomas Jones appeals the denial of his request for a continuance
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during his sentencing hearing. Jones sought the continuance to allow him time to

procure the testimony of his attorney challenging an Arizona conviction of Jones

that was used to enhance Jones’s sentence. Because Jones had sufficient time and

opportunity to procure this testimony before he requested a continuance, the

district court did not abuse its discretion when it denied Jones’s request.

BACKGROUND

Jones was indicted on November 4, 2004, on one count of possession with

intent to distribute methamphetamine and one count of possession with intent to

distribute MDMA (“Ecstacy”). 21 U.S.C. §§ 841(a)(1), (b)(1)(B). On February

24, 2005, the government filed a notice of intent to seek enhanced penalties based

on Jones’s 2002 Arizona felony conviction. 21 U.S.C. § 851. The enhancement

increased Jones mandatory minimum sentence from 5 years to 10 years and

increased his maximum sentence from 40 years to life imprisonment. On April 7,

2005, Jones pleaded guilty to both charges, without a written plea agreement. The

district court set a sentencing hearing for June 27.

On June 23, Jones moved for a 30-day continuance to defend against the

section 851 enhancement on the ground that he was challenging his Arizona state

conviction as unconstitutional. The district court granted the continuance and

rescheduled the sentencing hearing for August 8. At the August 8 hearing, Jones
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requested another 48-hour continuance to produce his Arizona state court counsel

or an affidavit from the state court counsel. The district court denied the

continuance and proceeded with the sentencing hearing.

STANDARD OF REVIEW

We review the denial of a request for continuance by the district court for an

abuse of discretion. United States v. Bergouignan, 764 F.2d 1503, 1508 (11th Cir.

1985).

DISCUSSION

We consider four factors when we determine whether the decision of the

district court to deny a request for a continuance is so arbitrary and unreasonable

that it constitutes an abuse of discretion:

(1) the diligence of the defense in interviewing the witness and

procuring his testimony; (2) the probability of obtaining the testimony

within a reasonable time; (3) the specificity with which the defense

was able to describe the witness’s expected knowledge or testimony;

and (4) the degree to which such testimony was expected to be

favorable to the accused, and the unique or cumulative nature of the

testimony.

United States v. Wright, 63 F.3d 1067, 1071 (11th Cir. 1995) (quoting United

States v. Cross, 928 F.2d 1030, 1048 (11th Cir. 1991)). Because none of these

factors favor Jones, he cannot establish that the district court abused its discretion.

First, Jones did not establish that he was diligent in interviewing the witness
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and procuring testimony. Jones received the notice of intent to seek an

enhancement from the government in February 2005. Jones requested a

continuance four months later and received an additional 42 days to prepare. Jones

testified that he had been in contact with the Arizona counsel by June 23, which

means Jones had 45 days before the August 8 hearing to obtain the testimony of

the Arizona counsel, a more than sufficient amount of time. Jones stated that the

Arizona counsel was not helpful, but Jones failed to state what efforts he had made

to obtain the Arizona counsel’s appearance at the hearing.

Second, Jones did not establish that he could have procured the testimony in

a reasonable time. Jones was unable to procure the testimony of the Arizona

counsel in 45 days, and he presented no evidence that an additional 48 hours would

have enabled him to procure the testimony.

Third, Jones did not specify what testimony he would elicit from the Arizona

counsel. On several occasions at the evidentiary hearing, Jones stated that he was

unsure about the testimony of the Arizona counsel. To find an abuse of discretion,

we require at least some specificity regarding the testimony of the witness, and

Jones has been unable to provide it.

Finally, Jones failed to establish that the testimony would favor him. At the

sentencing hearing, the district court questioned Jones’s counsel about the effect
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the Arizona proceedings. Jones’s counsel repeatedly stated that he did not know

Arizona law and that Arizona law for challenging a conviction is different from

Florida law. This assertion failed to establish that the testimony of the Arizona

counsel would actually benefit Jones.

CONCLUSION

Because none of the factors supports Jones’s argument that the district court

abused its discretion when it denied Jones’s request for a continuance, the decision

of the district court is

AFFIRMED.