And illustrative of the “prevailing professional norms,” Strickland, 466 U.S. at 688, 104 S.Ct. 2052, the defense Bar was endeavoring to preserve the chance that criminal defendants might benefit from the FSA's lower mandatory minimums by seeking continuances until after its enactment, as shown in cases where defendants were similarly situated to Abney. See, e.g., United States v. Thompson, 721 F.3d 711, 714 (D.C.Cir.2013); United States v. Fields, 699 F.3d 518, 521–23 (D.C.Cir.2012); United States v. McMahon, 422 Fed.Appx. 523, 524–26 (6th Cir.2011); United States v. Spires, 628 F.3d 1049, 1055 (8th Cir.2011); United States v. McClendon, 379 Fed.Appx. 898, 899–901 (11th Cir.2010). Abney's new counsel—a federal public defender—in seeking a reduction of sentence “couldn't find any other case like [Abney's] because frankly most people were continuing the sentences until after [the FSA became effective].”

The decision as to a continuance "'is traditionally within the discretion of the trial judge.'" United States v. McMahon, 422 F. App'x 523, 525 (6th Cir. 2011) (quoting Ungar v. Sarafite, 376 U.S. 575, 589 (1964)). "The outer limit of a district court's discretion is set by the constitutional requirements of due process . . . ."

Such uncertainty is why courts have consistently affirmed the denial of continuances requested by a defendant to await potential legislation. See United States v. Cook, 375 Fed.Appx. 657, 658 (8th Cir.2010); see also, United States v. Fields, 699 F.3d 518, 522–23 (D.C.Cir.2012); United States v. McMahon, 422 Fed.Appx. 523, 525 (6th Cir.2011); United States v. McClendon, 379 Fed.Appx. 898, 900 (11th Cir.2010); cf. United States v. Bonner, No. 09–2352, 2010 WL 226351, at *3 (3d Cir. Jan. 21, 2010). “Pending legislation is generally too removed for ... district courts to consider at sentencing,” especially where there is “no indication of whether or when such a bill would be considered by the full House of Representatives, or the Senate, let alone whether or when such bill would be passed by either house of Congress or signed into law by the President.”

The undersigned further notes that any requested continuance of the sentencing hearing based on the passage of the First Step Act would have resulted in a continuance to an indefinite date, which is disfavored by the Court. See United States v. McMahon, 422 Fed.Appx. 523, 525 (6th Cir. 2011)(A judge need not await the outcome of an ongoing political discussion, and did not abuse its discretion in denying a continuance of sentencing “even when ‘presented with compelling arguments that the political climate was shifting towards eliminating the unwarranted crack/powder 100:1 ratio.'”) Based upon the foregoing, the undersigned respectfully recommends that Movant's above habeas claim be dismissed because Movant cannot establish the first prong of the Strickland standard.

My information now indicates that it's a dead issue in Congress and that it's not going to change, at least in the foreseeable future. . . ."). See also United States v. McMahon, 422 Fed.Appx. 523, 525 (6th Cir. 2011)(A judge need not await the outcome of an ongoing political discussion, and did not abuse its discretion in refusing to grant a continuance of sentencing "even when 'presented with compelling arguments that the political climate was shifting towards eliminating the unwarranted crack/powder 100:1 ratio.'"). Further, the record does not establish that defense counsel could have predicted the passage of the Fair Sentencing Act, or that he acted unreasonably in failing to do so.