NOT RECOMMENDED FOR FULL-TEXT PUBLICATION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
-2-
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 . . . .”
-3-
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
-4-
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.
-5-