US v. Simon Allen, Jr.

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 8:14-cr-00324-TMC-2 Copies to all parties and the district court/agency. [999772312].. [15-4336]

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UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.

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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.

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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,

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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