US v. Charles Atwell, No. 08-4434 (4th Cir. 2009)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4434 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. CHARLES E. ATWELL, Defendant - Appellant. Appeal from the United States District Court for the District of South Carolina, at Greenville. G. Ross Anderson, Jr., Senior District Judge. (6:07-cr-00393-GRA-1) Submitted: May 29, 2009 Decided: June 29, 2009 Before MOTZ, GREGORY, and SHEDD, Circuit Judges. Affirmed by unpublished per curiam opinion. Guy J. Vitetta, Charleston, South Carolina, for Appellant. W. Walter Wilkins, United States Attorney, William C. Lucius, Assistant United States Attorney, Greenville, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Following a jury trial, Charles E. Atwell was convicted on four counts of attempted tax evasion, in violation of 26 U.S.C. § 7201 (2006), and one count of bankruptcy fraud, in violation claiming denying that his of 18 U.S.C. district the § 152(3) court motion for opportunity to allocute. a (2006). abused continuance Atwell its and appeals, discretion denied by him an Finding no merit to his claims, we affirm. During the second day of trial near the end of the Government s presentation of its final witness, Atwell moved for a continuance on the ground that he was not feeling well. The district court denied the motion, concluding that Atwell sought the continuance as part of his ongoing efforts to delay the proceedings. This court reviews a district court s motion for a continuance for abuse of discretion. denial demonstrates that the district court a United States v. Williams, 445 F.3d 724, 738-39 (4th Cir. 2006). defendant of Even if a abused its discretion in denying a motion for a continuance, the defendant must show that the error specifically prejudiced [his] case in order to prevail. United States v. Hedgepeth, 418 F.3d 411, 419 (4th Cir. 2005). courts on matters [B]road discretion must be granted trial of continuances; 2 only an unreasoning and arbitrary insistence justifiable request upon for expeditiousness delay assistance of counsel. violates in the the face right to of a the Morris v. Slappy, 461 U.S. 1, 11-12 (1983) (internal quotation marks and citation omitted). We have reviewed the record with these standards in mind and find no abuse of discretion in the district court s decision to deny Atwell s motion for a continuance. Atwell also asserts that the court violated his right to allocution when it prevented him from reading a statement at his sentencing hearing. A defendant has a due process right to address the court if he expresses a desire to do so. Ashe v. North Carolina, 586 F.2d 334, 336 (4th Cir. 1978); Fed. R. Crim. P. 32(i)(4)(A)(ii) (right to allocution in federal cases). Allocution is the right to present a statement in mitigation of sentencing. United States v. Carter, 355 F.3d 920, 926 (6th Cir. 2004); Fed. R. Crim. P. 32(i)(4)(A)(ii). right is not unlimited. However, that Ashe, 586 F.2d at 336-37. Allocution may be limited both as to duration and as to content. [The defendant] need be given no more than a reasonable time; he need not be heard on irrelevancies or repetitions. Id. at 337. Here, the court provided Atwell with an opportunity to speak and offer information in mitigation of his sentence. Atwell chose instead to use this opportunity to attempt to argue 3 that he had committed no crimes. We find that the court did not deprive Atwell of his right to allocute. Accordingly, we affirm the district court s judgment. 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 4
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