USA v. Thomas J. Ballanco

1 The Honorable Laurie Smith-Camp, United States District Judge for the
District of Nebraska.
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 03-2049
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Nebraska.
Arturo Cardenas-Gutierrez, * [UNPUBLISHED]
*
Appellant. *
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Submitted: December 17, 2003
Filed: February 5, 2004
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Before WOLLMAN, LAY, and HANSEN, Circuit Judges.
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PER CURIAM.
Arturo Cardenas-Gutierrez was convicted of possession with intent to distribute
more than 500 grams of methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and
(b)(1). His sentence included 235 months of imprisonment, 5 years of supervised
release, and a $100 special assessment. He now appeals, contending that the district
court 1 erred by denying his motions for continuance, for dismissal, and for acquittal.
We affirm.

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On the day trial was to begin, Cardenas-Gutierrez moved for a continuance to
secure the appearance of his uncle, “Romero,” whom Cardenas-Gutierrez claimed to
have been traveling to see when he was arrested in Nebraska. At the time of his
arrest, Cardenas-Gutierrez said that his uncle lived in New Jersey, but was unable to
provide a last name, city of residence, or telephone number. Cardenas-Gutierrez did
not specify in his motion what relevant testimony his uncle, whose whereabouts he
claimed to have just discovered, would give. We review a denial of a motion to
continue for abuse of discretion, United States v. Vesey, 330 F.3d 1070, 1071-72 (8th
Cir. 2003). No abuse of discretion is shown here, for Cardenas-Gutierrez failed to
“make some plausible showing of how [the] testimony would have been both material
and favorable to his defense.” United States v. Valenzuela-Bernal, 458 U.S. 858, 867
(1982).
Following the government’s case-in-chief, and again following the jury’s guilty
verdict, Cardenas-Gutierrez moved for judgment of acquittal, challenging the
sufficiency of the evidence. Having reviewed the evidence in the light most favorable
to the jury’s verdict, United States v. Smith, 104 F.3d 145, 147 (8th Cir. 1997), we
conclude that a reasonable juror could have found beyond a reasonable doubt that
Cardenas-Gutierrez possessed and intended to distribute the methamphetamine found
in the car. United States v. Buford, 108 F.3d 151, 153 (8th Cir. 1997).
Finally, Cardenas-Gutierrez argues that the district court erred in denying his
motion for new trial. The only mention of such a motion was the district court’s
immediately corrected mischaracterization of defendant’s motion for acquittal.
Cardenas-Gutierrez in fact made no motion for new trial.
The conviction is affirmed.
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