IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 02-10339 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

BENNIE DEAN HENDERSON,

Defendant-Appellant.

Appeal from the United States District Court for the Northern District of Texas USDC No. 4:01-CR-164-1-A

December 2, 2002

Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.

PER CURIAM:*

Bennie Dean Henderson appeals the district court’s denial of

his motion to continue sentencing, after he pleaded guilty to

conspiracy to commit mail fraud. “[T]he disposition of motions for

continuance is vested in the sound discretion of the trial court,

which will not be disturbed on appeal except upon a clear showing

of abuse of discretion” and a demonstration of “serious prejudice”

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. resulting from the denial.1

There was no abuse of discretion in Henderson’s case. The

defendant lodged two complaints at sentencing, and asked that the

sentencing be continued so that counsel could further investigate

the issues. Henderson’s first objection was that Assistant Federal

Public Defender (AFPD) Wannamaker, who had represented him up until

the sentencing, when AFPD Curtis took over the representation, had

rendered ineffective assistance. The second was that he wished to

withdraw his guilty plea on grounds of innocence. The trial court

allowed the defendant the opportunity at sentencing to testify as

to both motions. During his testimony on the motion to remove the

FPD’s office, the defendant agreed to withdraw the motion and have

AFPD Curtis, who was representing him at the sentencing, continue

to be his counsel. Thus, that issue was resolved and the district

court did not abuse its discretion in refusing to continue the

sentencing so that Curtis could inquire further into the issues

concerning the motion to remove.

As to defendant’s assertion of innocence and desire to

withdraw his guilty plea, AFPD Curtis declined to allow Henderson

to testify in support of that claim, thus failing to establish any

reason why the district court should consider the motion

meritorious and serve as a basis for continuing the sentencing.

Therefore, the trial court also did not abuse its discretion in

1 United States v. Mitchell,

(5th Cir. 1985).

-2- refusing to allow a continuance on this basis.

Furthermore, even if the district court did abuse its

discretion in continuing the sentencing, the defendant does not

show that serious prejudice resulted from that decision. He fails

to provide any cognizable reason why the continuance would have

benefitted either his ineffectiveness claim or his motion to

withdraw the guilty plea.

AFFIRMED.

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