                             UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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

                                           2
       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,

                                                3
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




                                            4
