Appeal from the United States District Court for the Central District of California. D.C. NO. CR-89-0970-JMI-1. James M. Ideman, District Judge, Presiding
Before: Tang, and Hall, Circuit Judges, and Shubb,*fn** District Judge.
Joseph Widby, an African American, was arrested during Operation Streetsweep, a nationwide law enforcement crackdown targeting gang members. Widby appeals his conviction and sentence for being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g).
Widby also appeals the district court's enhancement of his sentence, pursuant to Sentencing Guidelines § 4B1.1. The district court ruled that possession of a firearm by a felon constitutes a crime of violence. We affirm Widby's conviction, but vacate his sentence and remand for resentencing.
Widby argues that the district court committed reversible error when it denied his request for a continuance in order to locate witness Jerry Allen. We hold that the district court did not abuse its discretion in denying the continuance. See United States v. Shirley, 884 F.2d 1130, 1134 (9th Cir. 1989) (denial of continuance reviewed under abuse of discretion standard).
In evaluating the propriety of the district court's denial, we consider (i) Widby's diligence; (ii) the likelihood that the continuance would have satisfied Widby's needs; (iii) the hardship a continuance would impose on the court and parties; and (iv) the harm Widby suffered as a result of the denial. See United States v. Flynt, 756 F.2d 1352, 1359 (9th Cir. 1985), amended, 764 F.2d 675 (9th Cir. 1985); see also Shirley, 884 F.2d at 1134. At a minimum, Widby must demonstrate actual prejudice before his sentence will be reversed. Shirley, 884 F.2d at 1134; Flynt, 756 F.2d at 1359.
The district court's Conclusion that Widby did not exercise diligence in his efforts to obtain Allen's testimony was not an abuse of discretion. Although Widby had subpoenaed Allen to appear at the suppression hearing, Widby never subpoenaed Allen to testify at trial.
When Widby informed the court that Allen had been arrested by state authorities on a traffic warrant, the district court immediately granted Widby's request that the government prepare a writ of habeas corpus ad testificandum for Allen. The district court cautioned Widby, however, that he should not rely on the writ alone to secure Allen's presence:
I'd be happy to sign it [the writ] if you get the paperwork started. However, you might have your investigator contact the Compton court because oftentimes when people come to traffic court, they make their peace with the Court and they're released. So by the time this writ can be handed --
He may be on the streets already, depending on how many warrants he has and what the Judge wants to do about it.
Despite the district court's warning, Widby failed to determine whether Allen had been released or was still in state custody. Consequently, when the government presented the writ to the court the next day, Widby was unable to supply the court with the address for Allen needed to complete the writ.*fn1
Additionally, the district court noted that Widby never requested a body attachment from the court. Had Widby made such a request in a timely manner, the district court ...