United States v. Smith

Appellate Case: 25-7019 Document: 76 Date Filed: 07/20/2026 Page: 1 FILED United States Court of Appeals PUBLISH Tenth Circuit UNITED STATES COURT OF APPEALS July 20, 2026 Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________ UNITED STATES OF AMERICA, Plaintiff - Appellee, v. No. 25-7019 JEFFREY SCOTT SMITH, JR., Defendant - Appellant. _________________________________ Appeal from the United States District Court for the Eastern District of Oklahoma (D.C. No. 6:23-CR-00139-JFH-1) _________________________________ Erick L. Guzman, Law Office of Erick L. Guzman, Santa Rosa, California, for Defendant-Appellant. Christopher C. Wang, Attorney, Department of Justice, Washington, D.C. (Christopher J. Wilson, United States Attorney, and Linda A. Epperly, Appellate Chief, United States Attorney’s Office, Muskogee, Oklahoma; and Harmeet K. Dhillon, Assistant Attorney General, Jesus A. Osete, Principal Deputy Assistant Attorney General, and David N. Goldman, Attorney, Department of Justice, Washington, D.C., with him on the brief) for Plaintiff-Appellee. _________________________________ Before PHILLIPS, McHUGH, and MORITZ, Circuit Judges. _________________________________ McHUGH, Circuit Judge. _________________________________ During his first solo shift as a police officer in Savanna, Oklahoma, Defendant-Appellant Jeffrey Scott Smith, Jr., pulled over a vehicle for a traffic  Appellate Case: 25-7019 Document: 76 Date Filed: 07/20/2026 Page: 2 violation, activating his body camera and dashboard camera to record the stop. Several minutes later, he manually deactivated both cameras and ordered the nineteen-year-old passenger from the stopped vehicle to go sit in his patrol vehicle, where he sexually assaulted her. A jury convicted Mr. Smith on one count of deprivation of rights under color of law, in violation of 18 U.S.C. §§ 242 and 250(b)(3), and two counts of falsifying records, in violation of 18 U.S.C. § 1519. The district court sentenced Mr. Smith to concurrent sentences of 480 months on the § 242 count and 240 months on the § 1519 counts. On appeal, Mr. Smith contends that the district court erred in denying his pretrial request for a continuance, that he did not violate § 1519 by manually deactivating his cameras, and that the district court imposed a substantively unreasonable sentence. We reject these arguments on the merits. Mr. Smith also purports to raise other appellate arguments, but he has forfeited review of these arguments through his perfunctory briefing. We therefore decline to address these arguments. Accordingly, exercising jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291, we affirm Mr. Smith’s conviction and sentence. I. BACKGROUND A. Factual History Mr. Smith joined the Savanna Police Department (“SPD”) in the summer of 2022. After joining the SPD, he first received field training from SPD Officer Byron Morgan, then attended the basic academy run by the Oklahoma Council on Law 2  Appellate Case: 25-7019 Document: 76 Date Filed: 07/20/2026 Page: 3 Enforcement Education and Training (“CLEET”). While training Mr. Smith, Officer Morgan observed two incidents that concerned him. In the first incident, Mr. Smith was “overly friendly” and “almost flirtatious” with a female driver during a traffic stop. App. Vol. II at 402. In the second incident, which occurred when Officer Morgan and Mr. Smith were traveling separately in their own patrol vehicles, Mr. Smith pulled over a young female driver for a minor traffic violation, even though the police chief had instructed them not to stop drivers for minor violations. Moreover, Mr. Smith violated SPD policy by failing to radio in the information that he was initiating a traffic stop. Based on his observations of Mr. Smith’s conduct, Officer Morgan warned him on two different occasions about a former SPD officer who had been federally investigated for sexual misconduct and was now serving a federal prison term. After finishing his training, Mr. Smith worked his first solo shift for SPD— a twelve-hour shift between the hours of 6 p.m. on November 1 and 6 a.m. on November 2, 2022. Near the end of that shift, in the early morning hours of November 2, Mr. Smith pulled over a vehicle for speeding on the highway. He activated his overhead lights at 4:51 a.m., causing the dashcam in his patrol vehicle to start recording. Shortly thereafter, he activated his bodycam. The driver of the vehicle, J.G., 1 pulled over to the side of the highway. J.G. and his then-girlfriend, nineteen-year-old K.H., were traveling home to Tulsa, 1 Following the Government’s lead, we refer to the victim and other non-law- enforcement witnesses by their initials. 3  Appellate Case: 25-7019 Document: 76 Date Filed: 07/20/2026 Page: 4 Oklahoma, from Houston, Texas. Mr. Smith asked both J.G. and K.H. to produce their driver’s licenses, which he took back to his patrol car, where he learned that J.G.’s license had recently expired. Mr. Smith returned to J.G.’s car, ordered K.H. and J.G. to get out of the car, and issued a traffic ticket to J.G. Mr. Smith asked K.H. if she could drive the car, since J.G. could not legally drive. She said that she could. But rather than letting them go, Mr. Smith pivoted to asking them personal questions. For example, he asked how long J.G. and K.H. had been dating. He then manually deactivated his bodycam before asking K.H. additional questions, including what she did for work. She reluctantly informed him that she was a dancer at Lady Godiva’s, which is identified in the record as a “gentleman’s club.” App. Vol. I at 51 n.1. This answer led to more questions about how long K.H. had worked there, if she liked working there, and other such personal matters. After questioning K.H. about her work as a dancer, Mr. Smith asked for permission to search J.G.’s car. J.G. initially denied consent, but Mr. Smith said he would need to wait for a K-9 unit to come check the vehicle if J.G. did not agree to a search. J.G. and K.H. were tired from their long drive and did not want to wait for the K-9 unit, so they consented to a search of the car. Mr. Smith searched K.H.’s purse 2 and found a single pre-rolled marijuana cigarette that someone had given to K.H. at her workplace to promote a new dispensary. 2 At trial, K.H. did not remember whether she specifically consented to a search of her purse. 4  Appellate Case: 25-7019 Document: 76 Date Filed: 07/20/2026 Page: 5 Once he found the marijuana cigarette in K.H.’s purse, Mr. Smith stopped the search and ordered J.G. to return to his car. Mr. Smith then went back to his patrol vehicle and pressed the “stop record” button on his dashcam. Unbeknownst to Mr. Smith, however, his dashcam was equipped with a function called Record-After- The-Fact, which caused the camera to keep recording, albeit without sound, when the “stop record” button was pressed. Mr. Smith hit the “stop record” button on his dashcam at 5:16 a.m. Mr. Smith then returned to where K.H. was standing and ordered her to go sit inside his patrol vehicle. K.H., feeling like she had no choice in the matter, complied with this order. The soundless footage from Mr. Smith’s manually deactivated dashcam shows her returning to J.G.’s car seventeen minutes later, looking subdued and somber. At trial, K.H. explained what happened during the seventeen minutes she spent in Mr. Smith’s patrol car. He ordered her to sit in the front passenger seat of his vehicle, and he sat in the driver’s seat. She turned her knees toward the window because she “didn’t have a good feeling” about where this was going. Id.at 170. Mr. Smith asked her several personal questions about her relationship with J.G. and about her job, such as “[h]ow long [she] had been with [her] boyfriend, if [she] let people touch [her] at work, if [she] like[d] it, [if her] boyfriend let [her] have people touch [her],” and if she danced “fully nude.” Id. at 171. She responded that she did not dance fully nude and did not let people touch her at work. Mr. Smith then commented on her breasts, twirled the marijuana cigarette in his hand, and asked, 5  Appellate Case: 25-7019 Document: 76 Date Filed: 07/20/2026 Page: 6 “What am I going to do with you?” Id. at 172. K.H. did not understand what he meant by this. At this point, Mr. Smith forcibly kissed K.H. and “stuck his tongue down [her] throat.” Id. He then touched her inner leg and grabbed her breast aggressively and painfully. K.H. tried to stop the assault by saying that J.G. would be able to see them. Mr. Smith responded by moving the police spotlight in his vehicle to shine directly on J.G., blinding him from seeing what was happening in the patrol vehicle behind him. Mr. Smith next stuck one of his hands inside K.H.’s clothing and put his finger in her vagina, scratching her and causing her pain. He used his other hand to grab her hand, forcing her to rub his clothed but erect penis. Mr. Smith eventually let K.H. go at 5:33 a.m. He gave her back her driver’s license and marijuana cigarette before telling her she could leave. She went back to J.G.’s car and told him that she had been sexually assaulted by Mr. Smith. J.G. started filming Mr. Smith’s patrol car, but Mr. Smith drove away about forty-five seconds after K.H. returned to J.G.’s car. K.H. began driving J.G.’s car back to Tulsa, but she was too upset to drive more than a mile or two. She stopped the car and got in the passenger’s seat, where she called her mother. Cellphone records confirm that K.H. first attempted to call her mother at 5:41 a.m., eight minutes after Mr. Smith released her from his patrol car. K.H.’s mother missed K.H.’s first phone call, but she answered the phone when K.H. tried calling her again four minutes later. 6  Appellate Case: 25-7019 Document: 76 Date Filed: 07/20/2026 Page: 7 On the phone with her mother, K.H. began crying and screaming. The sounds of her distress were loud enough to wake up K.H.’s older sister, P.H., who was staying at their mother’s house that night. P.H. had received training on sexual harassment and rape prevention during her time serving on the National Guard. She used this training to calm K.H. down enough to understand what she was saying. Once she understood what had occurred, P.H. called the county sheriff’s office to report the sexual assault. K.H. also attempted to report the assault herself by contacting the police department in Tulsa. Various agencies became involved in the investigation. An agent from the Oklahoma State Bureau of Investigation (“OSBI”) contacted SPD Chief Matthew Hines. Chief Hines took custody of Mr. Smith’s patrol vehicle and body camera. He pulled footage from the bodycam and dashcam, including the soundless Record- After-The-Fact footage. Chief Hines watched the footage and observed “the deactivation of the equipment intentionally and long before the traffic stop was completed.” Id. at 297. He then provided the footage to the OSBI. The physical cameras were sent to the company that supplied them to SPD, Motorola Solutions, for a full analysis. Engineers at Motorola Solutions confirmed with 100% certainty that both cameras were functioning normally on the morning of November 2 and that they were each manually deactivated during Mr. Smith’s traffic stop of J.G. and K.H. 7  Appellate Case: 25-7019 Document: 76 Date Filed: 07/20/2026 Page: 8 B. Procedural History On August 9, 2023, Mr. Smith was charged in a three-count indictment. 3 Count 1 alleged that he sexually assaulted K.H. on November 2, 2022, in violation of 18 U.S.C. §§ 242 and 250(b)(3). Counts 2 and 3 alleged that he “altered, concealed, covered up, and falsified an SPD record” with intent to impede or influence a federal investigation, in violation of 18 U.S.C. § 1519, by deactivating his bodycam (Count 2) and dashcam (Count 3) during the November 2 traffic stop. App. Vol. I at 16–17. The case went to trial approximately seven months later, after the district court granted two requests for a continuance, denied a third request for a continuance, and denied Mr. Smith’s motion to dismiss the indictment. Mr. Smith was found guilty on all three counts and sentenced to a lengthy term of imprisonment. We discuss relevant aspects of this procedural history below. 1. First Continuance On August 14, 2023, shortly after Mr. Smith was indicted, a federal public defender was appointed to represent Mr. Smith. He soon thereafter filed an unopposed motion for a continuance. The district court granted the motion, resetting the trial date from October 2, 2023, to February 5, 2024. 3 Approximately one month later, the Government filed a superseding indictment to correct a typographical error in the original indictment. This change did not affect the substance of the indictment in any way. 8  Appellate Case: 25-7019 Document: 76 Date Filed: 07/20/2026 Page: 9 2. Motion to Dismiss Through the federal public defender, Mr. Smith filed a motion to dismiss Counts 2 and 3 of the superseding indictment, contending that his conduct did not fit within the statutory language of § 1519 because he did not alter or destroy any records, but instead merely deactivated his cameras. The district court denied the motion, reasoning that “[c]ausing a record to be incomplete, or omitting portions of a record, undoubtedly distorts or misrepresents the record as a whole.” Suppl. App. at 19. 3. Second Continuance Approximately two months before the case was scheduled to go to trial, K.H. was the victim of an unrelated crime. Early in the morning of December 9, 2023, two or three men kicked down K.H.’s apartment door and physically assaulted her. K.H.’s injuries from the assault were serious enough that she required hospitalization and surgery. Accordingly, on December 15, 2023, the Government filed an unopposed motion for a thirty-day continuance for K.H. to heal from the assault and to undergo any additional medical treatments that might be needed. The district court granted the motion, resetting the trial date from February 5 to March 4, 2024. 4. Change to Retained Counsel On February 15, 2024—two and a half weeks before trial was scheduled to begin—the court held a pretrial conference, which Mr. Smith personally attended. At the beginning of this conference, the court confirmed with the parties that discovery was complete. The court discussed the anticipated length of the trial with the parties, 9  Appellate Case: 25-7019 Document: 76 Date Filed: 07/20/2026 Page: 10 then asked if there was anything else for the court to do to help the parties as they neared trial. Mr. Smith’s public defense counsel responded: “The only thing, Your Honor, that I would bring up is I sent an email yesterday, and I don’t know if the Court wants to discuss this at this time, but Mr. Smith is intent on hiring private counsel.” App. Vol. I at 88–89. The public defender then stated that he had recently spoken with the private attorney whom Mr. Smith intended to hire, John Cannon, who said that he would file an entry of appearance as soon as Mr. Smith paid his retainer. The district court responded that Mr. Smith was “free to retain any counsel he likes, and that is not a problem for us.” Id. at 89. But the court warned: “Mr. Cannon should be advised that this case is set first up for March the 4th and the [c]ourt is not inclined to continue the case because counsel gets into it late.” Id. The court indicated that Mr. Cannon should not “get[] into the case” unless he knew “what the settings and what the deadlines are,” and the court stated that it “assume[d] [Mr. Cannon] w[ould] be advised of that.” Id. Defense counsel replied in the affirmative. Mr. Cannon filed his notice of appearance on that same day. The next day, the public defender filed a motion to withdraw, in which he asserted that “Mr. Smith was actively seeking to hire private counsel of his choosing after the [public defender] was appointed.” Id. at 92. The public defender also asserted that Mr. Smith “was unsuccessful in [hiring private counsel] early on in this case” but “was later able to procure funding and hired private counsel of his choosing.” Id. 10  Appellate Case: 25-7019 Document: 76 Date Filed: 07/20/2026 Page: 11 5. Motion for Third Continuance Mr. Cannon filed a motion for a continuance on Mr. Smith’s behalf on February 20, 2024, five days after Mr. Cannon entered his appearance and less than two weeks before trial was scheduled to begin. In this motion, Mr. Cannon acknowledged that the case was “not unusual or complex.” Id. at 97. However, he argued that he should be granted a sixty-day continuance because (1) he understood from communication with the public defender “that discovery consists of roughly 4,000 [pages] of written discovery, in addition to other digital discovery”; (2) he needed more time to review this discovery and prepare for trial; (3) the Government and the public defender had both been granted continuances earlier in the case; and (4) he had one criminal trial scheduled for March 25 and four trials scheduled in April. Id. at 95. The district court then granted the public defender’s motion to withdraw but denied the motion for a continuance. With respect to the motion for a continuance, the court noted that its “admonition regarding a request to continue was clearly ignored.” Id. at 101. The court further noted that it had “experienced unprecedented caseloads and jurisdictional complexities in the past several years,” primarily due to the impact of McGirt v. Oklahoma, 591 U.S. 894 (2020). Id. at 102. “In light of this,” the court explained, “rescheduling trials at short notice is a drastic measure which the [c]ourt will consider in only the most compelling situations.” Id. And the court concluded that no such compelling circumstances were present here. The case had already been pending for almost seven months. Mr. Smith had acknowledged that 11  Appellate Case: 25-7019 Document: 76 Date Filed: 07/20/2026 Page: 12 “this case is not complex,” and both parties had agreed that “discovery [wa]s complete, all issues ha[d] been fully briefed and litigated, and this case st[ood] ready for trial.” Id. Moreover, the Government had clarified that “discovery in this case consists of only 2,544 pages of discovery, as opposed to retained counsel’s estimation of roughly 4,000 pages.” Id. (internal quotation marks omitted). The district court therefore found that there was “reasonable time necessary for effective preparation for trial in this matter in the exercise of due diligence.” Id. Finally, the court concluded that “[a] continuance would not be in the best interest of the public, including the victim, the Government, its witnesses, and the [c]ourt.” Id. at 103. 6. Trial On February 22, a second attorney associated with Mr. Cannon’s law firm entered an appearance on behalf of Mr. Smith. Trial commenced on March 4 as scheduled, with Mr. Smith represented by two retained attorneys. At the conclusion of the Government’s case, Mr. Smith moved for a judgment of acquittal, which the district court denied. The jury subsequently found Mr. Smith guilty on all three counts. 7. Sentencing Mr. Smith’s presentence investigation report (“PSR”) calculated a total offense level of 42 and a criminal history category of I. Under the U.S. Sentencing Commission Guidelines, the advisory range for his crimes would have been 360 months to life imprisonment, but this range was capped by the statutory maximums for his crimes. Accordingly, the PSR calculated an advisory Guidelines 12  Appellate Case: 25-7019 Document: 76 Date Filed: 07/20/2026 Page: 13 range of 360 to 480 months on Count 1 and 240 months (the statutory maximum) on Counts 2 and 3. See 18 U.S.C. §§ 250(b)(3), 1519. Because neither party objected to the PSR, the district court adopted it in its entirety. At the sentencing hearing, the district court heard statements from K.H. and Mr. Smith as well as arguments from the Government and defense counsel. The district court then stated that it had considered the advisory Guidelines range and “all factors set forth in [18 U.S.C. § 3553(a)] to reach what [the court] believe[d] [wa]s the appropriate and reasonable sentence in this case.” App. Vol. III at 677. The court discussed the seriousness of the offense as well as mitigating factors such as Mr. Smith’s prior military service and lack of a criminal history record. Based on these considerations, the court ultimately sentenced Mr. Smith within the advisory Guidelines range for his offenses to concurrent sentences of 480 months on Count 1 and 240 months on Counts 2 and 3. Mr. Smith then filed this timely appeal. II. DISCUSSION Federal Rule of Appellate Procedure 28(a)(8) requires the argument section of an appellant’s brief to contain the “appellant’s contentions and the reasons for them, with citations to the authorities and parts of the record on which the appellant relies,” as well as, “for each issue, a concise statement of the applicable standard of review.” Fed. R. App. P. 28(a)(8). Several sections of Mr. Smith’s brief do not comply with this requirement. For instance, Mr. Smith purports to raise an Eighth Amendment challenge to the length of his sentence. However, this purported argument consists of a single, short sentence with no discussion of the applicable standard of review, no 13  Appellate Case: 25-7019 Document: 76 Date Filed: 07/20/2026 Page: 14 citation to any case authority, and no citation to where, if at all, this argument was raised before the district court. Likewise, Mr. Smith’s opening brief contains one paragraph labeled “Miscellaneous Errors,” which purports to raise several issues primarily related to the district court’s rulings on the parties’ pretrial motions in limine. Appellant’s Br. at 25. But this section of his brief cites no legal authorities, contains no reference to the applicable standard of review, and raises arguments in an extremely cursory fashion. We will not address issues that Mr. Smith has waived through his perfunctory briefing. See United States v. Walker, 918 F.3d 1134, 1151 (10th Cir. 2019) (“[A]rguments may be deemed waived when they are advanced in an opening brief only in a perfunctory manner.” (internal quotation marks omitted)); United States v. McBride, 94 F.4th 1036, 1047–49 (10th Cir. 2024) (holding that a defendant waived various arguments by failing to state the standard of review, among other “briefing deficiencies”); Valdez v. Macdonald, 66 F.4th 796, 834 (10th Cir. 2023) (“[The appellant’s] argument is conclusory, underdeveloped, and thus inadequately briefed and waived. We will therefore not consider it further.”). We conclude that Mr. Smith’s appellate brief adequately raises three issues for our review: (1) a challenge to the district court’s denial of his February 2024 motion for a continuance; (2) an argument that the scope of § 1519 does not extend to the manual deactivation of recording devices; and (3) an argument that his 480-month sentence is substantively unreasonable under the Guidelines. We reject these three arguments on the merits and affirm Mr. Smith’s conviction and sentence. 14  Appellate Case: 25-7019 Document: 76 Date Filed: 07/20/2026 Page: 15 A. Motion for Continuance “We review the denial of a motion for continuance for abuse of discretion and will only find error if the district court’s decision was arbitrary or unreasonable and materially prejudiced the defendant.” United States v. McClaflin, 939 F.3d 1113, 1117 (10th Cir. 2019) (internal quotation marks omitted). Four factors guide our review of the district court’s denial of a continuance: “(1) the diligence of the party seeking the continuance; (2) the likelihood the continuance, if granted, would have accomplished the stated purpose; (3) the inconvenience to the opposing party, witnesses, and the court; and (4) the need for the continuance and any harm resulting from its denial.” Id. (quotation marks omitted). “The final factor is the most important.” Id. (quotation marks omitted). In applying these factors to Mr. Smith’s case, we find guidance in two prior cases that likewise involved a motion to continue filed by a defendant who retained or sought to retain private counsel shortly before trial was scheduled to begin: United States v. Rivera, 900 F.2d 1462 (10th Cir. 1990) (en banc), and United States v. Cervantes, 4 F.4th 1089 (10th Cir. 2021). Because the facts of these cases inform our application of the four-factor test here, we discuss both cases in some detail, then turn to the question whether the district court abused its discretion by denying Mr. Smith’s February 2024 motion for a continuance. 1. Rivera The defendant in Rivera, Luis Rivera, was charged with thirteen drug offenses enumerated in two indictments. 900 F.2d at 1465. One of the indictments also named 15  Appellate Case: 25-7019 Document: 76 Date Filed: 07/20/2026 Page: 16 six other co-defendants. Id. The charges in these indictments arose from the defendants’ importation by plane of hundreds of pounds of cocaine from Columbia to an isolated airstrip in Talihina, Oklahoma, and their subsequent transportation of that cocaine from Oklahoma to Florida. Id. At trial, the district court also admitted evidence of two drug offenses not specifically charged in either indictment, which involved drug trafficking between Florida and other states. Id. at 1465–66. On January 24, 1985, six days after Mr. Rivera’s arrest, Gregory Meier was appointed to represent him. Id. at 1466. About one month later, on February 27, 1985, Mr. Meier filed motions to withdraw as counsel, asserting that an “irreconcilable conflict” had arisen when he “recommended a certain course of action during plea negotiations with which [Mr. Rivera] disagreed,” causing Mr. Rivera to lose confidence in him. Id. The district court denied Mr. Meier’s motions to withdraw. Id. Then, “[o]n March 8, 1985, another attorney, D.D. Hayes, visited with [Mr. Rivera].” Id. A few days later, on March 11, “[Mr.] Hayes filed formal entries of appearance on behalf of [Mr. Rivera].” Id. Trial was scheduled to begin one week later, on March 18, 1985. See id. at 1467. “On March 13, [Mr.] Hayes requested a continuance,” stating that he needed time “to examine the ‘voluminous’ documents necessary to prepare [Mr.] Rivera’s defense.” Id. at 1466. Mr. Hayes asserted that the materials he needed to review included “two transcripts of prior trials and numerous FBI reports,” “one box containing thousands of documents in the nature of [Mr. Rivera’s] business records from Miami, Florida,” and “several more boxes of such material” that he anticipated 16  Appellate Case: 25-7019 Document: 76 Date Filed: 07/20/2026 Page: 17 receiving soon. Id. “[Mr.] Hayes further asserted that he needed to master the numerous technical details relating to [the] aircraft involved in this case, as well as the normally complicated issues of a conspiracy type case.” Id. (internal quotation marks omitted). The district court denied the motion for a continuance on March 14. Id. “On March 18, just prior to the beginning of jury selection for [Mr. Rivera’s] trial, [Mr.] Hayes renewed his motion for a continuance.” Id. at 1467. He “noted that he had still not received all of the documents from Miami that he anticipated using in preparing [Mr.] Rivera’s defense,” and he “told the court that until he had agreed to take on [Mr. Rivera’s] case, he ‘had no idea of the magnitude of paper work and of the necessity of obtaining evidence from Miami, Florida.’” Id. The prosecutor asserted, however, that Mr. Hayes had been working diligently on the case and was now more familiar with the government’s evidence than the prosecutor was. Id. The district court additionally “noted that [Mr.] Meier was still assigned to the case and that if [Mr. Rivera] so desired, [Mr.] Meier would be directed to continue working on the case at government expense.” Id. Mr. Hayes responded that both he and Mr. Rivera wanted Mr. Meier to remain on the case, so the district court denied Mr. Meier’s pending motion to withdraw. Id. “The court also denied the renewed motion for a continuance, although later, after the government had rested its case, the court did grant [Mr.] Hayes’ request for a weekend continuance to enable him to prepare [Mr.] Rivera to testify.” Id. At the conclusion of 17  Appellate Case: 25-7019 Document: 76 Date Filed: 07/20/2026 Page: 18 the trial, Mr. Rivera was found guilty of all thirteen counts and sentenced to a prison term of life plus 140 years. Id. On appeal, Mr. Rivera argued in part that the district court erred in denying his motion for a continuance. Id. at 1475. But this court held en banc that Mr. Rivera had “failed to offer sufficient proof” to establish an abuse of discretion under our four- factor test. Id. We held that the first factor—“the diligence of the party requesting the continuance”—weighed against Mr. Rivera for multiple reasons, including the fact that he “had trial counsel for almost six weeks prior to the request for a continuance,” and did not file a motion for a continuance until “five days prior to the date on which the jury trial was scheduled to begin.” Id. We then held that the second factor—“the likelihood that a continuance would accomplish the purpose underlying the articulated need for a delay”—was satisfied because “[g]ranting the continuance would have accomplished” the stated purpose of giving Mr. Hayes “more time to examine [Mr. Rivera’s] business records and other materials.” Id. at 1475 & n.19. But we concluded that this was the only factor Mr. Rivera had satisfied. Id. at 1475. On the third factor, which “concerns the inconvenience caused by the continuance,” we reasoned that “any continuance granted practically on the eve of trial inevitably will disrupt the schedules of the court, the opposing party, and the witnesses who have been subpoenaed or who have voluntarily arranged their 18  Appellate Case: 25-7019 Document: 76 Date Filed: 07/20/2026 Page: 19 schedules to attend the trial.” Id. And we noted that when a case is scheduled for a jury trial, a continuance may inconvenience jurors as well. Id. Finally, on the fourth and “most important factor,” we held that Mr. Rivera had not adequately shown that he was “materially prejudiced” by the denial of a continuance. Id. at 1476 (quotation marks omitted). Although a continuance would certainly have provided Mr. Hayes with additional time to review the thousands of documents potentially relevant to the defense, Mr. Rivera failed to identify either at trial or on appeal “precisely what would have been discovered from the documents if he had been granted a continuance.” Id. Admittedly, Mr. Rivera “was still receiving documents during the trial,” which “undoubtedly imposed an added burden on defense counsel.” Id. But “the fact that [Mr. Rivera] had the services of two counsel during the trial should have eased that burden considerably.” Id. And Mr. Rivera had “failed to make any showing that the failure to grant a continuance prevented him from introducing any documents that would have been sufficiently important to his defense so as to constitute material prejudice.” Id. Moreover, Mr. Rivera made no showing that the denial of a continuance caused his counsel to be inadequately prepared. Id. “The issues at trial were not so complex that the need for a continuance would have been obvious, particularly since defense counsel had the advantage of having the transcripts of two previous trials concerning many of the same events.” Id. And the record showed that defense counsel “worked very hard to prepare prior to trial” and presented a competent 19  Appellate Case: 25-7019 Document: 76 Date Filed: 07/20/2026 Page: 20 defense. Id. We therefore held that the district court did not abuse its “sound discretion” by denying Mr. Rivera’s motion for a continuance. Id. 2. Cervantes The defendant in Cervantes, Armando Cervantes, was charged with two drug trafficking offenses. 4 F.4th at 1092. Mr. Cervantes made his initial appearance in August 2010, and the district court appointed Cindi Wood to represent him. Id. The court subsequently set trial to begin on January 4, 2011. Id. “Two weeks before trial, on December 21, 2010, [Mr. Cervantes] attempted to retain private, out-of-state defense counsel.” Id. Mr. Cervantes paid private counsel a $5,000 retainer, but “counsel did not speak with Ms. Wood, enter an appearance, or otherwise inform the court of their intent to represent [Mr. Cervantes].” Id. “On January 3, 2011, the day before trial, private counsel finally contacted Ms. Wood. The same day, [Mr. Cervantes] told Ms. Wood that he hired private counsel in December.” Id. After learning this information, Ms. Wood filed a motion to withdraw and to continue the trial. Id. “The court denied the motion, noting that the jurors were already braving winter weather to travel to the courthouse. The court also emphasized that it had not authorized representation by out-of-state counsel, who had yet to file any motions to appear pro hac vice.” Id. On the scheduled trial date of January 4, 2011, the district court “conducted a second hearing related to [Mr. Cervantes’s] request for new counsel.” Id. Mr. Cervantes “asked the court for time to retain new counsel, and Ms. Wood renewed her motion for a continuance.” Id. “The court again denied the motion but 20  Appellate Case: 25-7019 Document: 76 Date Filed: 07/20/2026 Page: 21 afforded Ms. Wood one additional day to prepare for trial.” Id. That night, however, Mr. Cervantes fled the country, and he was subsequently tried and convicted in absentia. Id. at 1092–93. Nine years later, he was apprehended and sentenced to 188 months of imprisonment. Id. On appeal, Mr. Cervantes argued in part that the district court abused its discretion by denying his motion to continue. Id. at 1093. We rejected this argument, holding that he had not shown an abuse of discretion under this circuit’s four-factor test. Id. at 1093–94. Regarding the first factor, we held that Mr. Cervantes did not diligently seek a continuance because (1) he “waited more than four months after his arraignment to seek out private representation, just two short weeks before trial”; (2) “he failed to inform Ms. Wood that he had retained private counsel,” making him “partly to blame for the alleged breakdown of communication”; and (3) “Ms. Wood did not file the motion to continue until the day before trial, even though she had acted as [Mr. Cervantes’s] counsel since August 2010, and their communication allegedly broke down in December 2010.” Id. at 1094. We then held that the second factor weighed in Mr. Cervantes’s favor because a continuance, if granted, would have given Ms. Wood “additional time to review recently disclosed evidence” and “to discuss two alternative theories of defense with [Mr. Cervantes], one which would have required him to testify.” Id. The third factor weighed against Mr. Cervantes, however. We quoted our holding in Rivera that “any continuance granted practically on the eve of trial 21  Appellate Case: 25-7019 Document: 76 Date Filed: 07/20/2026 Page: 22 inevitably will disrupt the schedules of the court, the opposing party, and the witnesses who have been subpoenaed or who have voluntarily arranged their schedules to attend the trial.” Id. (quoting Rivera, 900 F.2d at 1475). And we held that “[t]his universal burden would have been compounded” by the circumstances facing the district court when Mr. Cervantes requested a continuance. Id. “[T]he court’s calendar was unusually full” due to the presiding judge’s planned retirement, “making it a challenge to reschedule.” Id. And “[i]f the judge was unable to reschedule [Mr. Cervantes’s] case before his retirement, the case would have necessarily been left to a different judge, creating an additional burden on the court.” Id. We therefore concluded that “continuing the trial would have resulted in a substantial burden to the Government, the court, and witnesses.” Id. The fourth factor likewise weighed against Mr. Cervantes. Id. at 1094–95. He did not argue, and the record did not show, “that Ms. Wood’s performance was deficient or that the denial of his motion to continue materially prejudiced him.” Id. at 1095. This factor therefore supported the district court’s denial of the motion for a continuance. Id. “In sum,” we held, “granting the motion to continue would have accomplished its stated purpose, but (1) [Mr. Cervantes] was not diligent in seeking a continuance, (2) the inconvenience resulting from a continuance would have been substantial, and (3) [Mr. Cervantes] was not prejudiced by denial of the motion.” Id. We therefore concluded that “the district court did not abuse its discretion in denying a continuance.” Id. 22  Appellate Case: 25-7019 Document