United States v. Simon Allen, Jr.

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-4336

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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. To earn the reduction, however, the defendant

must prove by a preponderance of the evidence “that he has

clearly recognized and affirmatively accepted personal

responsibility for his criminal conduct.” United States v.

Nale, 101 F.3d 1000, 1005 (4th Cir. 1996).

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The commentary to the Guidelines provides a non-exclusive

list of “appropriate considerations” to determine whether a

defendant is entitled to an acceptance of responsibility

reduction. USSG § 3E1.1 cmt. n.1. Most 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 admit[s] or [does] not falsely deny[] any

additional relevant conduct for which the defendant is

accountable[.]” USSG § 3E1.1 cmt. n.1(A). On the other hand,

“a defendant who falsely denies, or 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). We have reviewed the record and have

considered the parties’ arguments and find no error in the

district court’s determination that Allen’s offense level should

not be reduced for acceptance of responsibility. See United

States v. Hargrove, 478 F.3d 195, 198 (4th Cir. 2007)

(recognizing that district court acceptance of 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. Admittedly,

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the Sixth Amendment right to counsel, once invoked, “protects a

suspect against the deliberate elicitation of incriminating

statements in the absence of his attorney.” United States v.

Payne, 954 F.2d 199, 203 (4th Cir. 1992). 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 with one

expressing repentance for criminal conduct. 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 on the foregoing, 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 this court and argument would not aid the decisional

process.

AFFIRMED