United States v. Victor Murray

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 16, 2018
• Docket: 17-10278
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 16 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 17-10278

Plaintiff-Appellee, D.C. No. 1:07-cr-00156-LJO-3 v.

VICTOR MURRAY, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the Eastern District of California Lawrence J. O’Neill, Chief Judge, Presiding

Submitted July 12, 2018** San Francisco, California

Before: GRABER and HURWITZ, Circuit Judges, and LEMELLE,*** District Judge.

Victor Murray appeals the sentence imposed for violation of the terms of his

supervised release. Reviewing for abuse of discretion, United States v. Spangle, 626

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Ivan L.R. Lemelle, United States District Judge for the Eastern District of Louisiana, sitting by designation. F.3d 488, 497 (9th Cir. 2010), we affirm.

1. Murray first argues that the district court abused its discretion in denying

his motion for a continuance of the sentencing. United States v. Flynt, 756 F.2d

1352, 1358 (9th Cir. 1985) (“The decision to grant or deny a requested continuance

lies within the broad discretion of the district court, and will not be disturbed on

appeal absent clear abuse of that discretion.”). To prevail, Murray must

“demonstrate ‘at a minimum that he has suffered prejudice as a result of the denial

of his request.’” United States v. Zamora-Hernandez, 222 F.3d 1046, 1049 (9th Cir.

2000) (quoting Flynt, 756 F.2d at 1359).

Murray has failed to demonstrate prejudice from the denial of the continuance.

Murray does not claim that the court’s order “prevent[ed] the introduction of specific

evidence.” United States v. Mejia, 69 F.3d 309, 317 (9th Cir. 1995). Nor has he

demonstrated that the denial of the continuance impeded his ability “to obtain . . .

testimony potentially supportive of his . . . defense,” United States v. Pope, 841 F.2d

954, 957 (9th Cir. 1988), or “affected his ability to testify in his own defense,” United

States v. Kloehn, 620 F.3d 1122, 1129 (9th Cir. 2010). Although counsel

conceivably might have preferred more time to prepare for the hearing after

receiving the government’s disclosures several days prior, he was not prevented

from presenting a defense. See Zamora-Hernandez, 222 F.3d at 1049.

2. Murray claims that his sentence was based on clearly erroneous fact-

2 finding by the district court. But the court’s factual findings were not “illogical,

implausible, or without support in the record.” Spangle, 626 F.3d at 497. Murray

does not dispute the he violated the terms of his supervised release. And, although

Murray claimed that he was sincerely committed to a rehabilitation program, the

district court had evidence before it, including statements by Murray, that drew

Murray’s claim into question.

AFFIRMED.