United States of America v. Simon Allen, Jr.

UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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

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