UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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 of 18 U.S.C. § 152(3) (2006). Atwell appeals,
claiming that the district court abused its discretion by
denying his motion for a continuance and denied him an
opportunity to allocute. 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 denial of a
motion for a continuance for abuse of discretion. United States
v. Williams, 445 F.3d 724, 738-39 (4th Cir. 2006). Even if a
defendant demonstrates that the district court 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). “[B]road discretion must be granted trial
courts on matters of continuances; only an unreasoning and
2
arbitrary insistence upon expeditiousness in the face of a
justifiable request for delay violates the right to the
assistance of counsel.” 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). However, that
right is not unlimited. 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