US v. Bryant Kelly Pride

Filing 920090317

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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. Pride appeals, See 21 U.S.C. that the

§ 841(b)(1)(A)(iii)

(2006).

arguing

district court erred in denying his motion for a continuance based on the and Government's that the late disclosure court erred of in impeachment imposing an

evidence,

district

enhanced sentence based on prior convictions not alleged in the indictment or proved to the jury beyond a reasonable doubt. affirm. Pride's transaction conviction through a was based on a controlled When We

arranged

confidential

informant.

Pride arrived at the arranged meeting place, he was arrested. Drugs, money, digital were scales in and the money, car including pre-recorded in and Just buy

found

Pride to the

arrived police.

Pride before

surrendered

additional

cocaine

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 2 counsel argued that a

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. 445 F.3d 724, 738-39 (4th Cir. 2006). be granted trial courts on matters United States v. Williams, "[B]road discretion must 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 Nor

the informant's credibility because she did not testify.

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. Whitley, 514 U.S. 419, 433 (1995). 3

See Kyles v.

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. claim fails because the Supreme Court specifically

Pride's 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." New Jersey, 530 U.S. 466, 490 (2000). Cheek, 415 F.3d 349, 352 (4th Cir. Apprendi v.

See United States v. 2005) (noting that the

"exception for recidivism-based enhancements in sentencing" was reaffirmed in United States v. Booker, 543 U.S. 220 (2005)). Accordingly, sentence. legal before we affirm Pride's conviction and

We dispense with oral argument because the facts and are and adequately argument presented not in aid the the materials decisional

contentions the court

would

process. AFFIRMED

4