United States v. Hannaford

• Court: Court of Appeals for the Tenth Circuit
• Decided: July 3, 2024
• Docket: 23-5124
• Status: Unpublished

Opinion

Appellate Case: 23-5124 Document: 010111074700 Date Filed: 07/03/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT July 3, 2024 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 23-5124 (D.C. No. 4:21-CR-00111-GKF-1) SHANE MICHAEL HANNAFORD, (N.D. Okla.)

Defendant - Appellant. _________________________________

ORDER AND JUDGMENT* _________________________________

Before TYMKOVICH, MATHESON, and McHUGH, Circuit Judges. _________________________________

Shane Michael Hannaford appeals his sentence, arguing that the district court

abused its discretion in denying his fifth request to continue his sentencing hearing.

Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

I. Background

Mr. Hannaford pleaded guilty on April 15, 2022, to one count of Bank Fraud

in violation of 18 U.S.C. § 1344. The United States Probation Office issued a

* After examining the briefs and appellate record, this panel has determined unanimously to honor the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Appellate Case: 23-5124 Document: 010111074700 Date Filed: 07/03/2024 Page: 2

presentence investigation report (PSR) on March 21, 2023. The PSR identified

eleven victims and calculated a restitution amount in excess of $800,000.

The district court scheduled a sentencing hearing for April 28, 2023.

Mr. Hannaford proceeded to file four motions to continue the hearing, two of which

the government opposed and two of which were unopposed. The district court

granted all four motions. As a result, the sentencing hearing was postponed from

April 28 to June 5, then August 7, then October 3, and ultimately to November 16.

The continuances provided Mr. Hannaford an additional six months to prepare for the

sentencing hearing.

On November 9, 2023, Mr. Hannaford filed a motion for variance and a

sentencing memorandum, both of which he amended on November 13. The next day,

he moved ex parte to continue his sentencing hearing to January 2024. The district

court denied the motion. It noted that nineteen months had elapsed since

Mr. Hannaford’s guilty plea, he had already been granted four continuances, and he

had recently filed a motion for variance and a sentencing memorandum. The district

court concluded that, despite intervening challenges, Mr. Hannaford had sufficient

opportunity to prepare for the hearing. But the court invited him to seek

reconsideration at the sentencing hearing.

Mr. Hannaford renewed his motion for a continuance at his sentencing hearing

on November 16, 2023. He argued that, due to his mental health conditions, his

counsel had not been able to properly consult with him to prepare for the hearing.

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Mr. Hannaford indicated he wanted to object to the number of victims and the total

loss amount in the PSR. The government opposed a fifth continuance.

The district court denied Mr. Hannaford’s renewed motion. It pointed to

(1) the four previous continuances granted, (2) the eight months Mr. Hannaford had

to consider the PSR, and (3) the atypical and significant backlog of pending criminal

matters before the district court. The court concluded Mr. Hannaford had ample time

to mount a defense and objections. It also ruled that, because Mr. Hannaford had not

objected to the PSR, he would not be permitted to testify at the hearing regarding the

number of victims and restitution.

Proceeding with the sentencing hearing, the district court calculated

Mr. Hannaford’s guidelines imprisonment range as 27 to 33 months according to the

uncontested PSR. The court heard argument from the defense and prosecution and

took statements from Mr. Hannaford and two victims. The district court noted an

inconsistency between Mr. Hannaford’s statement that his mental health had

stabilized in late 2018 and his representation in support of a continuance that his

health-related issues in 2023 prevented him from communicating about sentencing

with his counsel. The court sentenced Mr. Hannaford to 33 months’ imprisonment

followed by five years of supervised release and ordered him to pay $800,607.14 in

restitution.

II. Discussion

Mr. Hannaford raises a single issue on appeal: he contends the district court

abused its discretion in denying his fifth motion to continue his sentencing hearing.

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“We review the denial of a motion for continuance for abuse of discretion and will

only find error if the district court’s decision was arbitrary or unreasonable and

materially prejudiced the defendant.” United States v. McClaflin, 939 F.3d 1113,

1117 (10th Cir. 2019) (internal quotation marks omitted). We consider “four factors:

(1) the diligence of the party seeking the continuance; (2) the likelihood the

continuance, if granted, would have accomplished the stated purpose; (3) the

inconvenience to the opposing party, witnesses, and the court; and (4) the need for

the continuance and any harm resulting from its denial.” Id. (internal quotation

marks omitted). “The final factor is the most important.” Id. (internal quotation

marks omitted). Mr. Hannaford argues all four factors weigh in his favor. The

government contends that all factors support the court’s denial of a fifth continuance.

As to the first factor, Mr. Hannaford asserts that nothing in the record indicates

he was not diligent in his preparation. Notably, however, Mr. Hannaford fails to

mention that the PSR was issued eight months before he was sentenced, he was

granted four previous continuances, and he ultimately had six additional months to

prepare for sentencing.

With respect to the third factor, Mr. Hannaford does not dispute the district

court’s finding that rescheduling his sentencing hearing for a fifth time would

inconvenience the court based upon its significant criminal caseload. Rather, he

contends only that any such inconvenience should not outweigh his right to properly

present evidence.

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Regarding factors two and four, Mr. Hannaford argues that, had he been

granted a continuance, he would have presented a full picture of the events in the

case and demonstrated that certain information in the PSR was incorrect, in particular

the number of victims and the extent of relevant conduct, which he says drove the

guidelines calculation. The government responds that Mr. Hannaford waived his

objections to the PSR. See N.D. Okla. LCrR32-4 (providing that objections to PSR

are due fourteen days prior to sentencing); United States v. Hardwell, 80 F.3d 1471,

1500 (10th Cir. 1996) (holding district court need not hear untimely objections to

PSR). Moreover, the government notes that Mr. Hannaford has never offered any

evidence that would substantiate objections to the number of victims and the

restitution amount.

Mr. Hannaford has not shown that the district court’s denial of his fifth motion

to continue his sentencing hearing was arbitrary or unreasonable, or that it materially

prejudiced him. We conclude he fails to demonstrate that the district court abused its

discretion in denying another continuance.

III. Conclusion

We affirm the district court’s judgment.

Entered for the Court

Timothy M. Tymkovich Circuit Judge