Notice: Fourth Circuit Local Rule 36(c) States That Citation of Unpublished Dispositions is Disfavored Except for Establishing Res Judicata, Estoppel, or the Law of the Case and Requires Service of Copies of Cited Unpublished Dispositions of the Fourth Circuit.united States of America, Plaintiff-appellee, v. Larry Dean Dutton, Defendant-appellant, 92 F.3d 1183 (4th Cir. 1996)

Larry Dean Dutton appeals from a district court judgment and sentence on a guilty plea for his possession of a firearm as a convicted felon. We affirm.

Dutton makes clear that he is not attacking the validity of the guilty plea itself. Dutton complains that the district court erred in not either granting his motion for a continuance of the sentencing hearing or ordering an evidentiary hearing regarding his allegation that he was promised a polygraph examination that was never completed and for which counsel never received a transcript of the aborted examination. Counsel wanted to use the transcript to rebut any attacks on Dutton's credibility by the Government during sentencing.

We find the allegation of error meritless. First, the sentencing had been continued once. Second, the motion for continuance contained the information Dutton wanted to use to defend his character. We find no " 'unreasoning and arbitrary insistence on expeditiousness in the face of a justifiable request for delay.' " United States v. Bakker, 925 F.2d 728, 735 (4th Cir. 1991) (quoting Morris v. Slappy, 461 U.S. 1, 11-12 (1983)). Further, three facts reveal that any error in denying the motion and not ordering an evidentiary hearing was harmless. First, Dutton referred to the polygraph evidence in support of his veracity, and the Government did not refute his characterization of the polygraph examination. Second and third, the Government did not use the information to attack Dutton's credibility, and the district court relied only on Dutton's extensive criminal history in setting the sentence at the top of the sentencing range. Thus, any error regarding the denial of the continuance motion and failure to order a hearing was harmless and provides no basis for vacatur of the judgment. Fed. R. Crim. P. 52(a).

Therefore, we affirm the district court order. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.

AFFIRMED