US v. Simon Allen, Jr., No. 15-4336 (4th Cir. 2016)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 15-4336 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. SIMON ALLEN, JR., Defendant - Appellant. Appeal from the United States District Court for the District of South Carolina, at Anderson. Timothy M. Cain, District Judge. (8:14-cr-00324-TMC-2) Submitted: February 25, 2016 Decided: March 11, 2016 Before AGEE, KEENAN, and WYNN, Circuit Judges. Affirmed by unpublished per curiam opinion. James R. Battle, BATTLE LAW FIRM, LLC, Conway, South Carolina, for Appellant. William N. Nettles, United States Attorney, William J. Watkins, Jr., Assistant United States Attorney, Greenville, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Simon Allen, Jr., appeals his 12-month-and-one-day sentence imposed after he pled guilty without a plea agreement to one count of conspiracy to defraud the Government, in violation of 18 U.S.C. § 371 (2012). Allen’s sole argument is that the district court erred when it refused to reduce his offense level for acceptance of responsibility. According to Allen, because he was represented by counsel during the criminal proceedings against him, his pro se filings were not properly before the district court. Thus, Allen asserts that the district court violated his Sixth Amendment right to counsel when it considered the pro se filings as a reason to deprive him of an acceptance of responsibility reduction. Finding no error, we affirm. Under U.S. Sentencing Guidelines Manual § 3E1.1 (2013), a district court is instructed to decrease a criminal defendant’s offense level by two levels if the defendant “clearly demonstrates acceptance of responsibility for his offense,” and to decrease it by one additional level if the Government files a motion and the offense level prior to the two-level reduction was 16 or higher. must prove clearly by a To earn the reduction, however, the defendant preponderance recognized responsibility for and his of the evidence affirmatively criminal conduct.” Nale, 101 F.3d 1000, 1005 (4th Cir. 1996). 2 “that accepted United he has personal States v. The commentary to the Guidelines provides a non-exclusive list of “appropriate defendant is reduction. considerations” entitled USSG to § 3E1.1 an to determine acceptance cmt. n.1. of Most whether a responsibility relevant to this appeal, a reduction should be given if the defendant “truthfully admit[s] the conduct comprising the offense(s) of conviction, and truthfully additional relevant accountable[.]” “a admit[s] defendant or [does] conduct not falsely for which the USSG § 3E1.1 cmt. n.1(A). who falsely denies, or deny[] any defendant is On the other hand, frivolously contests, relevant conduct that the court determines to be true has acted in a manner inconsistent with acceptance of responsibility[.]” USSG § 3E1.1 cmt. n.1(A). considered the parties’ We have reviewed the record and have arguments and find no error in the district court’s determination that Allen’s offense level should not be reduced for acceptance of responsibility. States v. Hargrove, (recognizing that 478 district F.3d 195, 198 (4th court acceptance of See United Cir. 2007) responsibility determination is reviewed for clear error as “district courts are uniquely qualified to evaluate whether to grant or deny a sentence reduction for acceptance of responsibility”). Although Allen summarily states that the district court violated his Sixth Amendment rights when it considered his pro se filings, we discern no merit to this argument. 3 Admittedly, the Sixth Amendment right to counsel, once invoked, “protects a suspect against the deliberate elicitation of statements in the absence of his attorney.” Payne, 954 F.2d 199, 203 (4th Cir. 1992). incriminating United States v. Thus, “[t]he Sixth Amendment functions to protect the unaided layman at critical confrontations with his expert adversary, the government, after the adverse positions of government and defendant have solidified with respect to a particular alleged crime.” Id. (internal quotation marks and brackets omitted). Here, Allen was represented by competent counsel yet he chose to confront the Government and take positions inconsistent expressing repentance for criminal conduct. with one The Government did not solicit these communications from Allen; Allen chose to send them of his own volition and wanted them to be considered by the district court. Accordingly, we discern no Sixth Amendment violation. Based judgment. legal before on the foregoing, we affirm the district court’s We dispense with oral argument because the facts and contentions this court are adequately and argument presented would not in aid the the materials decisional process. AFFIRMED 4
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