US v. Joseph DiBruno, Jr.

Filing 920100319

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 08-4997

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JOSEPH DIBRUNO, JR., Defendant - Appellant.

Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Frank D. Whitney, District Judge. (3:06-cr-00430-FDW-1)

Submitted:

February 2, 2010

Decided:

March 19, 2010

Before NIEMEYER, MOTZ, and KING, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Dennis Gibson, LAW OFFICE OF DENNIS GIBSON, Asheville, Carolina, for Appellant. Amy Elizabeth Ray, Assistant States Attorney, Asheville, North Carolina; Melissa Rikard, Assistant United States Attorney, Charlotte, Carolina, for Appellee.

North United Louise North

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Joseph convictions and DiBruno, resulting Jr. ("DiBruno"), sentence appeals after his

262-month

pleading

guilty to conspiracy to defraud the United States, 18 U.S.C. § 371 (2006), conspiracy to commit money laundering, 18 U.S.C.A. § 1956(h) (West 1999 & Supp. 2009), and concealment of assets, 18 U.S.C. § 152 (2006). DiBruno's counsel has filed an appeal

under Anders v. California, 386 U.S. 738 (1967), raising the issues of ineffective assistance of counsel, Government breach of the plea agreement, and judicial bias at sentencing. Government declined to file a brief. supplemental brief. First, The

DiBruno has filed a pro se

Finding no error, we affirm. raises the issue that DiBruno's

counsel

attorneys did not comply with his wishes and failed to inform him regarding the consequences of his actions, particularly the consequences assistance direct of of entering the guilty generally instead plea. is be not An ineffective on a

counsel but

claim should

cognizable in

appeal,

asserted

post-conviction motion to the district court under 28 U.S.C. § 2255 (2006). See United States v. Richardson, 195 F.3d 192, On direct appeal, this Court may address a assistance appears only from the if counsel's See,

198 (4th Cir. 1999). claim of

ineffective conclusively

ineffectiveness

record.

e.g., United States v. Baldovinos, 434 F.3d 233, 239 (4th Cir. 2

2006);

Richardson,

195

F.3d

at

198

(internal

citation

and

quotation marks omitted). In reviewing ineffective assistance claims arising

from counseling a guilty plea, this court utilizes a modified deficient conduct and prejudice test. 261 F.3d 377, 394 (4th Cir. 2001) See Beck v. Angelone, Hill v. Lockhart,

(citing

474 U.S. 52, 58-59 (1985)).

To prevail, the petitioner must

demonstrate that his trial counsel's performance was objectively unreasonable and that "there is a reasonable probability that, but for counsel's errors, [the defendant] would not have pleaded guilty and would have insisted on going to trial." Beck,

261 F.3d at 394 (citing Hill, 474 U.S. at 59).

Although DiBruno

filed a motion to withdraw his guilty plea, DiBruno withdrew his motion prior to sentencing DiBruno's and his guilty fail plea to was again the

entered.

Because

assertions

satisfy

prejudice prong of this test, we need not consider whether trial counsel's performance was objectively reasonable. Next, DiBruno asserts that the Government "breached

the Plea Agreement and engaged in other unspecified forms of prosecutorial misconduct." Appellant's Br. 14. Counsel

concedes that these allegations are non-specific and his review of the record did not identify any prosecutorial misconduct. "`It is well-established that the interpretation of plea

agreements is rooted in contract law, and that each party should 3

receive the benefit of its bargain.'" 587 F.3d 640, 645 (4th Cir. 2009)

United States v. Dawson, (quoting United States v. This Court reviews

Peglera, 33 F.3d 412, 413 (4th Cir. 1994)).

de novo questions regarding the contractual interpretation of plea agreements, and it reviews for plain error unpreserved United

claims that the Government breached the plea agreement. States v. Dawson, 587 F.3d 640, 645 (4th Cir. 2009).

The Government moved to dismiss the remaining counts to which DiBruno did not plead guilty. The terms of the plea

agreement specified that the parties would jointly recommend the amount of loss to be in excess of 2.5 million dollars, that the adjusted offense level was 35, and that the Government would move for a two-level reduction for acceptance of responsibility. The presentence report ("PSR") calculated the adjusted offense level to be 37. Compared to the plea agreement, this

calculation included a new two-level enhancement for specific offense characteristics and a two-level greater enhancement for DiBruno's role in the offense; it also omitted the two-level vulnerable victim enhancement. Including a two-level reduction

for acceptance of responsibility, the total offense level was 35. The recommended restitution amount was $3,808,487. The Government objected to the PSR on the basis that it omitted the vulnerable victim enhancement under U.S.

Sentencing Guidelines Manual § 3A1.1 (2007). 4

The plea agreement

provided that the parties agreed that there should be a twolevel increase level. under this section plea included agreement in the adjusted for the

offense

Because

the

provided

enhancement, the Government neither breached the plea agreement nor engaged in prosecutorial misconduct by arguing The a that the

vulnerable victim enhancement should be applied. eventually withdrew its recommendation to

Government two-level

apply

reduction for acceptance of responsibility because, immediately prior to sentencing, DiBruno claimed he was innocent of the

criminal conduct by filing a motion to withdraw his guilty plea. The plea agreement states that the Government would only

recommend the reduction if "the defendant clearly demonstrates acceptance of responsibility for his offense, as well as all relevant conduct . . . ." recommend the reduction if The Government was not required to DiBruno failed to make a full

disclosure to the probation officer, misrepresented facts to the Government prior to entering the plea, or committed any

misconduct after entering into the plea.

The court denied the

Government's motion to strike the two offense-level reduction for acceptance of responsibility, but stated it was "a real

close call." DiBruno did

J.A. 579. not

At the same time, the court found that comply with of the terms of the plea

strictly

agreement

governing

acceptance

responsibility,

thereby

relieving the Government of its obligation to recommend a 2105

month sentence.

J.A. 580.

The court therefore found that the

Government's failure to recommend a 210-month sentence did not breach the plea agreement. J.A. 580. This Court finds no

merit in DiBruno's arguments that the district court improperly interpreted the plea agreement, that the Government breached the plea agreement, or that the Government engaged in prosecutorial misconduct. Finally, counsel raises the issue of whether there was judicial bias at sentencing but ultimately concludes the claim has no merit. A judge must recuse himself or herself where the

party seeking recusal files a timely and sufficient affidavit stating the judge has a personal bias or prejudice either

against the affiant or in favor of an adverse party, 28 U.S.C. § 144 (2006), or where his or her impartiality might reasonably be questioned. such a motion. * 28 U.S.C. § 455 (2006). DiBruno did not file

DiBruno did not point to any evidence that the

district court held an extra-judicial bias, nor has our review of the record revealed a bias. without merit. (1994)
*

Therefore, this argument is

See Liteky v. United States, 510 U.S. 540, 555 rulings alone almost never constitute a

("[J]udicial

DiBruno's father, Joseph DiBruno, Sr., had moved for the court to recuse itself based on his belief that the court was personally involved in drafting his plea agreement. See J.A. 142-43. This motion was denied, id. at 143-44, and, in any event, cannot be attributed to DiBruno.

6

valid basis for a bias or partiality motion. . . . [T]hey . . . can only in the rarest circumstances required evidence make the fair degree of

favoritism

or

antagonism

[to

judgment

impossible] when no extrajudicial source is involved." (citation omitted)); Shaw v. Martin, 733 F.2d 304, 308 (4th Cir. 1984) ("Alleged bias and prejudice to be disqualifying must stem from an extrajudicial source and result in an opinion on the merits on some basis other than what the judge learned from his

participation in the case."). DiBruno has filed a pro se supplemental brief raising three claims. under the First, he argues that his speedy trial rights Amendment and the Speedy Trial Act were

Sixth

violated. assistance plea.

DiBruno's remaining two claims address ineffective of counsel in regard to the voluntariness of his

He claims that his plea is involuntary because his second

attorney lacked sufficient time to review his case before he recommended that DiBruno accept the plea agreement. DiBruno

additionally claims that his plea is involuntary because his attorney told him that he would not have a chance of winning at trial before that particular district court judge. We have

reviewed these claims and find them to be without merit. In accordance with Anders, we have reviewed the record in this case and have found no meritorious issues for appeal. We therefore affirm DiBruno's convictions 7 and sentence. We

grant DiBruno's motions for an extension of time to file his pro se supplemental brief and to supplement his pro se brief and deny his motion for default judgment. This court requires that

counsel inform DiBruno, in writing, of the right to petition the Supreme Court of the United States for further review. If

DiBruno requests that a petition be filed, but counsel believes that such a petition would be frivolous, then counsel may move in this court for leave to withdraw from representation.

Counsel's motion must state that a copy thereof was served on DiBruno. We dispense with oral argument because the facts and legal before contentions the court are and adequately argument presented not in the the materials decisional

would

aid

process. AFFIRMED

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