1 The Honorable William R. Wilson, Jr., Un ited States District Court Judge for the Eastern District of Arkansas. 

## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 06-2699

___________

*
* 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. *
*

___________ Submitted: April 12, 2007 Filed: August 27, 2007

___________ Before MURPHY, BENTON, and SHEPHERD, Circuit Judges.

___________ BENTON, Circuit Judge.

Derek Isaac Allmon, Sr., appeals his convi ction, sentence, and fine, contending the district court 1 erred by not ordering a trial c ontinuance, in determining his sentence, and by imposing a fine. Havi ng jurisdiction under 28 U.S.C. § 1291, this court affirms.-2- I.

Allmon and several co-def endants 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 fo r trial. Cloar explained to the court:

I am familiar enough with the case thatwith a week or so with the other – with whoever you appoint and if they are an experienced defense attorney, I don’t think th at 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 Allm on’s attorney until a new counsel was appointed and got “his sea legs.”

On March 14, B. Dale Westwas appointed Allmon’s counsel, with Cloar as cocounsel. The government gave West ear ly access to documents covered under the Jencks Act, 18 U.S.C. § 3500, to review over the weekend be fore 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 f ound, “Mr. West is able to represent Mr. Allmon on his own,” and granted Cloar’s mo tion to withdraw. A jury ultimately found Allmon guilty on all counts. He appeals.2 Fed. R. Crim. P. 32(i)(3)(B) provides: “A t sentencing, the court . . . must— for any disputed portion of the presentence report or other controverted matter— rule on
-3- II.

Allmon argues that the “district court erred by not granting an extended continuance in this case.” District co urts 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 c ontinuance, nor “alle ged 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 “state d 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 e rred 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 factua l findings that he was criminallythe dispute or determine that a ruling is unnecessary either because the matter will not affect sentencing, or because the court w ill not consider the matter in sentencing.”
-4- responsible for all the drugs involved in th e conspiracy, and thathis 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 de termination 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 res ponsible 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 prepondera nce of the evidence. See Plancarte-Vazquez, 450 F.3d at 852.

The presentence report (PSR) identified A llmon as the leader of a organization involved in drug trafficking. Allmon objected to this finding. The district court concluded by a preponderance of evidence th at “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.” C ontrary 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 h eard testimony from at least 16 witnesses, including several co-conspirators, that A llmon 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-5- the court may base its drug quantity cal culation for sentencing purposes.”). A probation officer summarized the trial testim ony, testifying that “the base offense level would be 38, ba sed on it being more than 150 kil ograms 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 inde pendent 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 im pression of the testimony of the witnesses at trial, coupled with its specific rejec tion of the defendant’s quantity objections.”).

IV.

Allmon asserts that the district court’s findings are insufficient to sustain enhancements to the base offe nse level. This court review s 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 moreparticipants 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-6- 817 (“Testimony is not unreliable as a matte r of law just because a witness is a co-conspirator or a coope rating witnesses.”).

The court also found that Allmon obstruc ted justice, a two-level enhancement. Under USSG § 3C1.1, a defendant is accountable fo r 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 de tective investigating Allmon. The coconspirator testified he deliv ered the documents to Allmon at the motel. The district court concluded: “I think the facts establis hed 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 ju stice 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 exte nd 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 offens e.” 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 sent ence four levels. The witness, initially involved in trafficking with Allmon, decide d 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, w ith 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.-7- 2003) (“The victim's permanent scar from re moval 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 receiptof anything of pecuniary value. The court heard testimony that Allmon conspired with hi s nephew to pay $20,000 and a kilogram of cocaine to “Little Bloody” to kill the witne ss. 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 a ssessment 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 a ssessing this four-level enhancement.

V.

Allmon contends the district court erre d 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 wa s applicable to those counts based on his prior convictions under 18 U.S .C. § 3559(c)(1)(A)(ii). Allm on asserts the court erred because the government did not disclose hi s 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, th e 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 ex tremely narrow and is limited to those errors-8- 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, a nd 14 required a mandatory sentence of life imprisonment because the government did not file noti ce 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”). Th e error, however, was harm less 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, lif e imprisonment was properly imposed on Allmon. His substantial ri ghts were not prejudiced and there was no miscarriage of justice. See United States v. Parker, 267 F.3d 839, 844 (8th Ci r. 2001) (“We will reverse under plain error revi ew only if the error prejudi ces 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 di strict 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 reve rse 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), th e 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 must3 (1) The need for the combined sent ence to reflect the seriousness of the offense; (2) any evidence presen ted as to the defendant’s ability to pay the fine . . . in light of his earning capacity and financial re sources; (3) the burden that the fine places on the defendant and his depe ndents 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) whethe r 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 rel ease imposed; and (8) any other pertinent equitable considerations. USSG § 5E1.2(d)

. -9- 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 cas e, the defendant did not file a financial report, and I think the guidelines require th at I fine him when there’s no financial report.” The PSR says that “the defendantrefused a presenten ce interview and did not sign authorization for the release of inform ation.” Therefore, the finding that Allmon “did not file a financial report” constitute s 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 se ntencing court must make specific factual findings on the record demonstrati ng 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) (“Th e language of the guidelines is mandatory with respect to the factors th at the trial court must consider before imposing a fine.”).-10- It is also true that this court vacates fines when the district court does not make findings regarding the defe ndant’s ability to pay. See, e.g. , United States v. Van Brocklin, 115 F.3d 587, 602 (8th Cir. 1997) (vacati ng 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 impos ing 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 c ourt performed that task in imposing Bauer's large fine, we are unable to provide mean ingful 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) (re manding 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 [defe ndant’s] ability to pay . . . . has often been the critical factor in our cases”). In this case, however, Allmon refused to provide a financial re port, or otherwise show he could not pay the fine. The Se ntencing Guidelines place the burden on the defendant to establish thathe 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.

______________________________