1

The Honorable William R. Wilson, Jr., United States District Court Judge for

the Eastern District of Arkansas.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 06-2699

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*

*

United States of America, *

*

Plaintiff – Appellee, *

* Appeal from the United States

v. * District Court for the

* Eastern District of Arkansas.

Derek Isaac Allmon, Sr., *

*

Defendant – Appellant. *

*

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Submitted: April 12, 2007

 Filed: August 27, 2007

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Before MURPHY, BENTON, and SHEPHERD, Circuit Judges.

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BENTON, Circuit Judge.

Derek Isaac Allmon, Sr., appeals his conviction, sentence, and fine, contending

the district court1

 erred by not ordering a trial continuance, in determining his

sentence, and by imposing a fine. Having jurisdiction under 28 U.S.C. § 1291, this

court affirms.
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I.

Allmon and several co-defendants were indicted for drug trafficking and

attempting to kill witnesses. Allmon retained Ralph M. Cloar, Jr., who had

represented Allmon in various cases for 20 years. 

Shortly before a hearing on March 10, 2006 – eleven days before trial – Cloar

moved to withdraw from the case. He claimed Allmon accused him of encouraging

some co-defendants to testify against him. Allmon had “no objections” to the court

appointing a new lawyer and ordering Cloar to be co-counsel. Allmon acknowledged

that a new attorney would have about 10 days to prepare for trial. Cloar explained to

the court:

I am familiar enough with the case that with a week or so with the

other – with whoever you appoint and if they are an experienced

defense attorney, I don’t think that they would have any trouble

getting up to speed. This is not a case that has a lot of real serious

legal issues in it. It’s a lot of he said, she said. 

The court ordered Cloar to remain Allmon’s attorney until a new counsel was

appointed and got “his sea legs.” 

On March 14, B. Dale West was appointed Allmon’s counsel, with Cloar as cocounsel. The government gave West early access to documents covered under the

Jencks Act, 18 U.S.C. § 3500, to review over the weekend before trial. On March 17,

West moved for a continuance, requesting one additional day to further review the

documents. On March 21, the first day of trial, West withdrew the motion. 

After the first week of trial, the court found, “Mr. West is able to represent Mr.

Allmon on his own,” and granted Cloar’s motion to withdraw. A jury ultimately

found Allmon guilty on all counts. He appeals. 
2

Fed. R. Crim. P. 32(i)(3)(B) provides: “At sentencing, the court . . . must— for

any disputed portion of the presentence report or other controverted matter— rule on

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II.

Allmon argues that the “district court erred by not granting an extended

continuance in this case.” District courts have broad discretion when ruling on

requests for continuances. See United States v. Urben-Potratz, 470 F.3d 740, 743

(8th Cir. 2006). Continuances generally are not favored and should be granted only

for a compelling reason. United States v. Vesey, 330 F.3d 1070, 1072 (8th Cir. 2003).

This court “will reverse a district court’s decision to deny a motion for continuance

only if the court abused its discretion and the moving party was prejudiced by the

denial.” Urben-Potratz, 470 F.3d at 743. 

Here, the government gave West early access to review Jencks Act material

before trial. Although West filed a motion for a continuance, he withdrew it on the

day of trial. The district court did not abuse its discretion or commit plain error by not

ordering a continuance sua sponte. See United States v. Steffen, 641 F.2d 591, 595

(8th Cir. 1981) (rejecting the argument that the court should have continued trial when

defendant had not properly requested a continuance, nor “alleged any facts which

would constitute plain error or abuse of discretion in the court’s not ordering a

continuance sua sponte”); see also United States v. Coney, 51 F.3d 164, 166 (8th Cir.

1995) (when defendant “stated explicitly that she would not request such a

continuance,” the court found “neither an abuse of discretion nor plain error in the

trial court’s failure to order a continuance sua sponte”). 

III.

Allmon contends that the district court erred in concluding that his base offense

level was 38, in violation of rule 32(i)(3)(B) of the Federal Rules of Criminal

Procedure.2

 He challenges the court’s factual findings that he was criminally
the dispute or determine that a ruling is unnecessary either because the matter will not

affect sentencing, or because the court will not consider the matter in sentencing.” 

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responsible for all the drugs involved in the conspiracy, and that his relevant conduct

included the possession and/or distribution of more than 150 kilograms of cocaine. 

This court reviews “the district court’s factual finding regarding the quantity

of drugs for clear error.” United States v. Vinton, 429 F.3d 811, 816-17 (8th Cir.

2005); see also United States v. Plancarte-Vazquez, 450 F.3d 848, 852 (8th Cir.

2006). “The district court’s drug quantity determination will be reversed only if the

reviewing court is left with the definite and firm conviction that a mistake has been

committed.” United States v. Davidson, 195 F.3d 402, 410 (8th Cir. 1999). “In a

drug conspiracy, a defendant is held responsible for all reasonably foreseeable drug

quantities that were within the scope of the criminal activity that he jointly

undertook.” Vinton, 429 F.3d at 817. The government bears the burden of proving

the quantity by a preponderance of the evidence. See Plancarte-Vazquez, 450 F.3d

at 852.

The presentence report (PSR) identified Allmon as the leader of a organization

involved in drug trafficking. Allmon objected to this finding. The district court

concluded by a preponderance of evidence that “he was the ringleader based on the

testimony.” The court was also “willing to find” he was the ringleader “beyond a

reasonable doubt, if that was required.” Contrary to Allmon’s argument, the court

determined that Allmon was responsible for all the drugs involved in the conspiracy

and made an independent finding “based on the testimony” apart from the PSR. 

As to the specific amount, the court heard testimony from at least 16 witnesses,

including several co-conspirators, that Allmon distributed 330 kilograms of cocaine.

See United States v. Sarabia-Martinez, 276 F.3d 447, 450 (8th Cir. 2002) (“A

sentencing court may determine drug quantity based on the testimony of a

co-conspirator alone.”); Plancarte-Vazquez, 450 F.3d at 852 (“It is well-established

that the testimony of co-conspirators may be sufficiently reliable evidence upon which
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the court may base its drug quantity calculation for sentencing purposes.”). A

probation officer summarized the trial testimony, testifying that “the base offense

level would be 38, based on it being more than 150 kilograms of cocaine.” When the

court asked counsel whether either side “wish to examine” the officer, both sides

responded, “No, your Honor.” The court later reiterated: “If I didn’t make it clear, I’ll

make it clear now: Based on the summary of the amounts, I find that there was at a

minimum more than 150 kilos involved.” 

Again, the district court made independent findings, over Allmon’s objection,

based on the testimony of co-conspirators. Plancarte-Vazquez, 450 F.3d at 852. The

court’s findings were not vague or conclusory. The court complied with Rule

32(i)(3)(B) and did not commit clear error. See United States v. Davis, 471 F.3d 938,

950 (8th Cir. 2006) (“The District Court satisfies Rule 32(i)(3)(B) if it makes a clear

statement indicating it was relying on its impression of the testimony of the witnesses

at trial, coupled with its specific rejection of the defendant’s quantity objections.”).

 

IV.

Allmon asserts that the district court’s findings are insufficient to sustain

enhancements to the base offense level. This court reviews the district court’s factual

findings regarding enhancements for clear error. See United States v. Wintermute,

443 F.3d 993, 1004 (8th Cir. 2006); United States v. Jourdain, 433 F.3d 652, 658 (8th

Cir. 2006). 

By Section 3B1.1 of the United States Sentencing Guidelines (USSG), an

offense level increases four levels if the defendant was an organizer or leader of a

criminal activity that involved five or more participants or was otherwise extensive.

Forty government witnesses testified at trial; nineteen were involved in his drug

conspiracy. The court’s finding that Allmon “was the leader of an organization that

involved five or more participants” is not clearly erroneous. See Vinton, 429 F.3d at
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817 (“Testimony is not unreliable as a matter of law just because a witness is a

co-conspirator or a cooperating witnesses.”). 

The court also found that Allmon obstructed justice, a two-level enhancement.

Under USSG § 3C1.1, a defendant is accountable for his own conduct and for conduct

that he aided or abetted, counseled, commanded, induced, procured, or willfully

caused. The testimony established that a co-conspirator stole documents from a motel

front desk, which were prepared for a detective investigating Allmon. The coconspirator testified he delivered the documents to Allmon at the motel. The district

court concluded: “I think the facts established that was an act of a co-conspirator made

in the furtherance of the conspiracy, and in the course and scope of it.” This

conclusion that Allmon obstructed justice is not clearly erroneous. See United States

v. Frank, 354 F.3d 910, 923 (8th Cir. 2004) (“We review the imposition of the

enhancement for clear error. . . . We extend great deference to the district court’s

decision to grant an enhancement for obstruction of justice.”). 

Allmon challenges the two-level enhancement for using a minor to commit a

crime. Under USSG § 3B1.4, this applies if “the defendant used or attempted to use

a person less than eighteen years of age to commit the offense or assist in avoiding

detection of, or apprehension for, the offense.” Allmon’s nephew testified that he was

about 16 years old and in high school when he started trafficking for Allmon,

transporting drugs from Texas to Arkansas, and delivering the proceeds to him. The

enhancement for using a minor to distribute drugs is not clearly erroneous. 

Allmon disputes the court’s finding that a witness suffered permanent or lifethreatening injuries, enhancing his sentence four levels. The witness, initially

involved in trafficking with Allmon, decided to assist the government’s investigation.

The witness then was shot in the neck and torso by masked assailants. He was

hospitalized and placed on a ventilator, with one bullet unremovable. The district

court’s finding that the witness’s injury “was life threatening, without any doubt” is

not clearly erroneous. See United States v. Miner, 345 F.3d 1004, 1006 (8th Cir.
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2003) (“The victim's permanent scar from removal of a bullet from his neck and the

presence of a bullet inside his body supports the permanent injury enhancement.”). 

Allmon attacks the court’s finding that the attempted murder of the witness

involved the offer or receipt of anything of pecuniary value. The court heard

testimony that Allmon conspired with his nephew to pay $20,000 and a kilogram of

cocaine to “Little Bloody” to kill the witness. The court did not believe Allmon that

he “had nothing to do with any pecuniary value being given.” See PlancarteVazquez, 450 F.3d at 852 (“a district court’s assessment of a witness’s credibility is

almost never clear error given that court’s comparative advantage at evaluating

credibility”). The court did not err in assessing this four-level enhancement. 

V. 

 

Allmon contends the district court erred in sentencing him to life imprisonment

on counts 7, 13, and 14, which relate to attempts to kill witnesses. The court

determined that a mandatory life sentence was applicable to those counts based on his

prior convictions under 18 U.S.C. § 3559(c)(1)(A)(ii). Allmon asserts the court erred

because the government did not disclose his prior convictions before trial. The

government concedes, “It is true that no such notice was filed.” It counters, however,

that “disregarding counts 7, 13 and 14, the defendant received a life sentence anyway”

on the other counts. 

Allmon did not object to the life sentence determination. “Without an objection

and a proper request for relief, the matter is waived and will receive no consideration

on appeal absent plain error.” United States v. Collins, 340 F.3d 672, 682 (8th Cir.

2003), quoting McKnight v. Johnson Controls, Inc., 36 F.3d 1396, 1407 (8th Cir.

1994); see also United States v. Beck, 250 F.3d 1163, 1166 (8th Cir. 2001), citing

United States v. Fountain, 83 F.3d 946, 949 (8th Cir. 1996) (“an error not argued to

the district court is grounds for reversal only if the error prejudices the substantial

rights of the defendant and would result in a miscarriage of justice if left

uncorrected”). “Plain error review is extremely narrow and is limited to those errors
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which are so obvious or otherwise flawed as to seriously undermine the fairness,

integrity, or public reputation of judicial proceedings.” Beck, 250 F3d at 1166. 

The district court sentenced Allmon to “imprisonment for a term of life on

Counts 1, 2, and 7 through 14 . . . all to run concurrently.” The district court erred in

finding that counts 7, 13, and 14 required a mandatory sentence of life imprisonment

because the government did not file notice of prior convictions under 18 U.S.C. §

3559. See Neary v. United States, 998 F.2d 563, 565 (8th Cir. 1993) (“the

government must timely file an information . . . before a prior conviction may be used

to enhance a sentence”). The error, however, was harmless because the court also

sentenced him to imprisonment for life on counts 1, 2, and 8 to 12 – to run

concurrently. See Beck, 250 F.3d at 1166. Allmon is unlike the defendant in Neary,

who was harmed by receiving a sentence in excess of the maximum authorized by law

when the government failed to file an information. Neary, 998 F.2d. at 566. Here,

disregarding counts 7, 13, and 14, life imprisonment was properly imposed on

Allmon. His substantial rights were not prejudiced and there was no miscarriage of

justice. See United States v. Parker, 267 F.3d 839, 844 (8th Cir. 2001) (“We will

reverse under plain error review only if the error prejudices the party’s substantial

rights and would result in a miscarriage of justice if left uncorrected.”). 

VI.

The final issue is the $100,000 fine. “A district court’s imposition of a fine and

the determination of the amount of the fine will not be reversed unless clearly

erroneous.” United States v. Berndt, 86 F.3d 803, 808 (8th Cir. 1996); see also

United States v. Turner, 975 F.2d 490, 498 (8th Cir. 1992). Because Allmon did not

object at the hearing, this court “cannot reverse the district court unless its actions are

plain error.” United States v. Gladfelter, 168 F.3d 1078, 1083 (8th Cir. 1999). 

Under USSG § 5E1.2(a), the district court shall impose a fine “in all cases,

except where the defendant establishes that he is unable to pay and is not likely to

become able to pay any fine.” In determining the amount of the fine, the court must
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 (1) The need for the combined sentence to reflect the seriousness of the

offense; (2) any evidence presented as to the defendant’s ability to pay the fine . . . in

light of his earning capacity and financial resources; (3) the burden that the fine places

on the defendant and his dependents relative to alternative punishments; (4) any

restitution or reparation that the defendant has made or is obligated to make; (5) any

collateral consequences of conviction, including civil obligations arising from the

defendant's conduct; (6) whether the defendant has been fined for a similar offense;

(7) the expected costs to the government of any term of probation, or term of

imprisonment and term of supervised release imposed; and (8) any other pertinent

equitable considerations. USSG § 5E1.2(d). 

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consider eight factors.3

 “The district court need not provide detailed findings under

each of the factors listed above, but must provide enough information on the record

to show that it considered the factors above so that the appellate court can engage in

meaningful review.” See Berndt, 86 F.3d at 808. 

The district court here stated: “Under the guidelines, the fine range for the

offense is $25,000 to $8 million. In this case, the defendant did not file a financial

report, and I think the guidelines require that I fine him when there’s no financial

report.” The PSR says that “the defendant refused a presentence interview and did not

sign authorization for the release of information.” Therefore, the finding that Allmon

“did not file a financial report” constitutes a finding that he “refused” to do so. 

Allmon emphasizes that the district court must consider his financial condition

before setting the amount of the fine. See United States v. Patient Transfer Serv.

Inc., 465 F.3d 826, 827 (8th Cir. 2006) (“A sentencing court must make specific

factual findings on the record demonstrating that it has considered the defendant’s

ability to pay the fine.”); Berndt, 86 F.3d at 808 (“It is incorrect for a court to impose

a fine that the defendant has little chance of paying.”); see also United States v.

Magee, 19 F.3d 417, 425 (8th Cir. 1994) (“The language of the guidelines is

mandatory with respect to the factors that the trial court must consider before

imposing a fine.”). 
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It is also true that this court vacates fines when the district court does not make

findings regarding the defendant’s ability to pay. See, e.g., United States v. Van

Brocklin, 115 F.3d 587, 602 (8th Cir. 1997) (vacating defendant’s fine because “the

district court did not make required findings of fact showing that it considered the

[defendant’s] . . . ability to pay, in imposing a $10,000 fine . . . . Such findings are

mandatory”); United States v. Bauer, 19 F.3d 409, 413 (8th Cir. 1994) (“Because the

record does not reflect how the district court performed that task in imposing Bauer's

large fine, we are unable to provide meaningful appellate review. Therefore, we

conclude that we must vacate Bauer’s fine and remand for redetermination.”); United

States v. Granados, 962 F.2d 767, 775 (8th Cir. 1992) (remanding to the district court

“to make specific findings of fact concerning whether Mora has assets sufficient to

pay or work off the $20,000 fine assessed”). See generally Gladfelter, 168 F.3d at

1083 (“specific findings with regard to [defendant’s] ability to pay . . . . has often been

the critical factor in our cases”). 

In this case, however, Allmon refused to provide a financial report, or otherwise

show he could not pay the fine. The Sentencing Guidelines place the burden on the

defendant to establish that he cannot pay the fine. See USSG § 5E1.2(a). The record

indicates Allmon’s ability to pay a $100,000 fine. As the district court found,

“Allmon was the leader of an organization” that distributed “at a minimum more than

150 kilos [of cocaine].” The district court did not commit plain error in imposing a

fine when Allmon did not establish that he cannot pay the fine, and the record

indicates his ability to pay it. See Berndt, 86 F.3d at 808 (upholding fine when “there

is substantial evidence that the defendant attempted to conceal assets from the

government”); cf. USSG § 5E1.2 comment n.6. 

VII.

The judgment of the district court is affirmed.

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