United States v. Gaytan

* Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
United States Court of Appeals
Fifth Circuit
F I L E D
April 21, 2004
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 03-41166
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GILBERT GAYTAN,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. M-03-CR-9-1
--------------------
Before JOLLY, JONES, and SMITH, Circuit Judges.
PER CURIAM:*
Gilbert Gaytan appeals his guilty-plea conviction and
sentence for importation of cocaine, a violation of 21 U.S.C.
§§ 952(a) and 960. The district court sentenced Gaytan to
120 months in prison, the statutory mandatory minimum term,
and five years of supervised release.
Gaytan contends that the district court abused its
discretion in denying his second motion for a continuance of
his sentencing hearing. Except for summarily asserting that he

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No. 03-41166
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needed more time to “allow [him] an opportunity to mitigate
his sentence,” Gaytan has cited no legal or factual basis upon
which a departure or reduction below the mandatory minimum might
have been warranted. Because he has not established prejudice,
he has not demonstrated that the district court erred in denying
him a continuance. See United States v. Peden, 891 F.2d 514, 518
(5th Cir. 1989).
The conviction and sentence are AFFIRMED.

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