United States v. DiBruno , 370 F. App'x 389 ( 2010 )

UNPUBLISHED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Affirmed by unpublished per curiam opinion.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, North
Carolina, for Appellant. Amy Elizabeth Ray, Assistant United
States Attorney, Asheville, North Carolina; Melissa Louise
Rikard, Assistant United States Attorney, Charlotte, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Joseph DiBruno, Jr. (“DiBruno”), appeals his
convictions and resulting 262-month sentence after 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. The
Government declined to file a brief. DiBruno has filed a pro se
supplemental brief. Finding no error, we affirm.
First, counsel raises the issue that DiBruno’s
attorneys did not comply with his wishes and failed to inform
him regarding the consequences of his actions, particularly the
consequences of entering the guilty plea. An ineffective
assistance of counsel claim generally is not cognizable on
direct appeal, but should instead be asserted in a
post-conviction motion to the district court under 28 U.S.C.
§ 2255 (2006). See United States v. Richardson, 195 F.3d 192,
198 (4th Cir. 1999). On direct appeal, this Court may address a
claim of ineffective assistance only if counsel’s
ineffectiveness conclusively appears from the record. See,
e.g., United States v. Baldovinos, 434 F.3d 233, 239 (4th Cir.
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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. See Beck v. Angelone,
261 F.3d 377, 394 (4th Cir. 2001) (citing Hill v. Lockhart,
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 and his guilty plea was again
entered. Because DiBruno's assertions fail to satisfy the
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
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receive the benefit of its bargain.’” United States v. Dawson,
587 F.3d 640, 645 (4th Cir. 2009) (quoting United States v.
Peglera, 33 F.3d 412, 413 (4th Cir. 1994)). This Court reviews
de novo questions regarding the contractual interpretation of
plea agreements, and it reviews for plain error unpreserved
claims that the Government breached the plea agreement. United
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). The plea agreement
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provided that the parties agreed that there should be a two-
level increase under this section included in the adjusted
offense level. Because the plea agreement provided for the
enhancement, the Government neither breached the plea agreement
nor engaged in prosecutorial misconduct by arguing that the
vulnerable victim enhancement should be applied. The Government
eventually withdrew its recommendation to apply a two-level
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 . . . .” The Government was not required to
recommend the reduction if 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.” J.A. 579. At the same time, the court found that
DiBruno did not strictly comply with the terms of the plea
agreement governing acceptance of responsibility, thereby
relieving the Government of its obligation to recommend a 210-
5
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. 28 U.S.C. § 455 (2006). DiBruno did not file
such a motion. * 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. Therefore, this argument is
without merit. See Liteky v. United States, 510 U.S. 540, 555
(1994) (“[J]udicial rulings alone almost never constitute a
*
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.
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valid basis for a bias or partiality motion. . . . [T]hey . . .
can only in the rarest circumstances evidence the degree of
favoritism or antagonism required [to make fair 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. First, he argues that his speedy trial rights
under the Sixth Amendment and the Speedy Trial Act were
violated. DiBruno’s remaining two claims address ineffective
assistance of counsel in regard to the voluntariness of his
plea. 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 and sentence. We
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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 contentions are adequately presented in the materials
before the court and argument would not aid the decisional
process.
AFFIRMED
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