UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4992
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
BRYANT KELLY PRIDE, a/k/a Bryan Kelly Pride,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Abingdon. James P. Jones, Chief
District Judge. (1:07-cr-00020-jpj)
Submitted: February 25, 2009 Decided: March 17, 2009
Before WILKINSON, TRAXLER, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Louis Dene, DENE & DENE, P.C., Abingdon, Virginia, for
Appellant. Julia C. Dudley, United States Attorney, Zachary T.
Lee, Assistant United States Attorney, Abingdon, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Bryant Kelly Pride was convicted following a jury
trial of possession with intent to distribute fifty grams or
more of cocaine base. Based on his prior felony convictions for
drug offenses, Pride was sentenced to the statutory mandatory
sentence of life imprisonment. See 21 U.S.C.
§ 841(b)(1)(A)(iii) (2006). Pride appeals, arguing that the
district court erred in denying his motion for a continuance
based on the Government’s late disclosure of impeachment
evidence, and that the district court erred in imposing an
enhanced sentence based on prior convictions not alleged in the
indictment or proved to the jury beyond a reasonable doubt. We
affirm.
Pride’s conviction was based on a controlled
transaction arranged through a confidential informant. When
Pride arrived at the arranged meeting place, he was arrested.
Drugs, digital scales and money, including pre-recorded buy
money, were found in the car Pride arrived in and Pride
surrendered additional cocaine to the police. Just before
trial, Pride moved for a continuance because Pride’s counsel
learned from the prosecutor on the evening before trial that
during a prior controlled transaction with a different target,
the confidential informant had attempted to retain a portion of
the drugs she purchased. Pride’s counsel argued that a
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continuance was necessary to explore these circumstances. The
court denied the motion, ruling that, in view of the fact that
the Government would not call the informant as a witness, the
delay in disclosing the impeaching information was not
prejudicial.
We review a district court’s denial of a motion for a
continuance for abuse of discretion. United States v. Williams,
445 F.3d 724, 738-39 (4th Cir. 2006). “[B]road discretion must
be granted trial courts on matters of continuances; only an
unreasoning and arbitrary insistence upon expeditiousness in the
face of a justifiable request for delay violates the right to
the assistance of counsel.” Morris v. Slappy, 461 U.S. 1, 11-12
(1983) (internal quotation marks and citation omitted).
Our review of the record leads us to conclude there
was no abuse of discretion. The jury was not required to assess
the informant’s credibility because she did not testify. Nor
did the delay deprive Pride of an adequate opportunity to use
the information at trial, as demonstrated by counsel’s effective
cross-examination of a law enforcement witness during which he
argued that the informant was unreliable. Finally, the evidence
against Pride was overwhelming and he cannot establish that if
the information had been disclosed earlier, there is a
“reasonable probability” of a different result. See Kyles v.
Whitley, 514 U.S. 419, 433 (1995).
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Next, relying on the Supreme Court’s holding in Jones
v. United States, 526 U.S. 227, 232 (1999), that elements of an
offense must be charged in the indictment and proved beyond a
reasonable doubt, Pride contends that, because his prior
convictions were not charged in the indictment or proved to a
jury beyond a reasonable doubt, the district court erred in
imposing an enhanced sentence of life imprisonment. Pride’s
claim fails because the Supreme Court specifically excepted
prior convictions when it held that, “[o]ther than the fact of a
prior conviction, any fact that increases the penalty for a
crime beyond the prescribed statutory maximum must be submitted
to a jury, and proved beyond a reasonable doubt.” Apprendi v.
New Jersey, 530 U.S. 466, 490 (2000). See United States v.
Cheek, 415 F.3d 349, 352 (4th Cir. 2005) (noting that the
“exception for recidivism-based enhancements in sentencing” was
reaffirmed in United States v. Booker, 543 U.S. 220 (2005)).
Accordingly, we affirm Pride’s conviction and
sentence. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional
process.
AFFIRMED
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