NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted May 25, 2010
Decided May 26, 2010
Before
WILLIAM J. BAUER, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
No. 09‐1607
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Northern District of Illinois,
Eastern Division
v.
No. 07 CR 217‐1
PATRICK DEL MONICO,
Defendant‐Appellant. John W. Darrah,
Judge.
O R D E R
Over the course of a dozen years, Patrick Del Monico stole heavy equipment and
other assets from one employer, used phony invoices to cheat that employer and another
out of more than $1.1 million, and tried to wring an additional $2.4 million from the United
States government with fictitious equipment‐rental agreements. Then in bankruptcy
proceedings he tried to hide some of that ill‐gotten gain from creditors with falsified bank
statements, an alias, and other material omissions and misrepresentations. After he was
charged with these offenses and released on bond, Del Monico defrauded yet another
No. 09‐1607 Page 2
victim of $2,000. By agreement with the government he pleaded guilty to mail and wire
fraud,
18 U.S.C. §§ 1341, 1343, and bankruptcy fraud,
id. § 157, in exchange for dismissal of
16 other counts. He was sentenced to a total of 96 months’ imprisonment and 3 years’
supervised release, and ordered to pay approximately $1.2 million in restitution. Del
Monico filed a notice of appeal, but his appointed appellate lawyers seek to withdraw
under Anders v. California,
386 U.S. 738 (1967), because they cannot identify any
nonfrivolous argument to pursue. Del Monico did not accept our invitation to respond to
counsel’s submission, see CIR. R. 51(b), so we limit our review to the potential issues
identified in counsel’s facially adequate brief, see United States v. Schuh,
289 F.3d 968, 973‐74
(7th Cir. 2002).
Del Monico has told counsel that he wants his guilty pleas set aside, so counsel first
consider whether there is any nonfrivolous basis for challenging the pleas. See United States
v. Knox,
287 F.3d 667, 671 (7th Cir. 2005). We agree with counsel, however, that the plea
colloquy substantially complied with Federal Rule of Criminal Procedure 11. See United
States v. Blalock,
321 F.3d 686, 688 (7th Cir. 2003); Schuh,
289 F.3d at 975. Counsel identify
minor omissions in the colloquy but correctly explain that we would consider each
harmless. First, although the district court did not mention that Del Monico could stand on
his earlier plea of not guilty, see FED. R. CRIM. P. 11(b)(1)(B), or that he could present
evidence on his own behalf at trial, see FED. R. CRIM. P. 11(b)(1)(E), Del Monico already knew
about these rights because both were addressed in the written plea agreement, see United
States v. Driver,
242 F.3d 767, 771 (7th Cir. 2001). Second, counsel observe that the district
court did not advise Del Monico of his right to the assistance of counsel, see FED. R. CRIM. P.
11(b)(1)(D), but Del Monico could not have been prejudiced by this error because he was
accompanied by counsel during the colloquy, see United States v. Lovett,
844 F.2d 487, 491
(7th Cir. 1988).
Counsel also question whether Del Monico could argue that the district court abused
its discretion by refusing to let him withdraw his guilty pleas after he was diagnosed with
anxiety and personality disorders. Del Monico had argued that these conditions, together
with a “preoccupation” with unspecified “injustices” perpetrated by his victims, might have
somehow affected his decision to plead guilty. But guilty pleas taken in substantial
compliance with Rule 11 enjoy a presumption of verity. See United States v. Mays,
593 F.3d
603, 607 (7th Cir. 2010); United States v. Patterson,
576 F.3d 431, 437 (7th Cir. 2009), cert.
denied,
130 S. Ct. 1284 (2010). Del Monico waited to file his motion until after he had seen
the presentence investigation report, and nowhere in that motion does he explain how his
newly discovered disorders undermined the voluntariness of his guilty pleas. Indeed, the
doctor who diagnosed Del Monico’s disorders also concluded that he understood the
criminal proceedings and was competent. Thus, we agree with counsel that an appellate
claim regarding the motion to withdraw his pleas would be frivolous.
No. 09‐1607 Page 3
Del Monico’s lawyers then evaluate whether he could challenge his prison sentence
as unreasonable. The 96‐month overall term falls within the correctly calculated guidelines
range of 87 to 108 months and is presumed reasonable. See Rita v. United States,
551 U.S.
338, 347 (2007); United States v. Mykytiuk,
415 F.3d 606, 608 (7th Cir. 2005). Counsel has
found no basis to set aside that presumption, nor have we. At sentencing the district court
addressed Del Monico’s principal arguments for a below‐guidelines sentence, see United
States v. Villegas‐Miranda,
579 F.3d 798, 801 (7th Cir. 2009), including the asserted hardship
on his family and his professed positive role in the lives of others. The court reasoned that
other sentencing factors listed in
18 U.S.C. § 3553(a) outweighed those concerns and
warranted a sentence near the middle of the guidelines range. The court emphasized
Del Monico’s longstanding history of fraud, his lack of respect for the law, and the need to
deter him and others like him. As counsel correctly conclude, it would be frivolous to press
a reasonableness claim.
Counsel also explore whether Del Monico could argue that the district court erred in
not setting a precise number of drug tests that he must undergo while on supervised
release. By statute the sentencing court must order a defendant to submit to a drug test
upon release from imprisonment and then ʺat least 2 periodic drug tests thereafter (as
determined by the court).ʺ See
18 U.S.C. § 3583(d). The district court entered judgment on a
standard form that requires Del Monico to be tested upon release and then submit to ʺat
least two periodic drug tests thereafter, as determined by the court.ʺ Cf. United States v.
Bonanno,
146 F.3d 502, 511 (7th Cir. 1998) (invalidating language in prior version of form
that improperly delegated to probation officer the decision as to number of drug tests). We
have not yet addressed whether § 3583(d) requires the district court to set any number
greater than three at sentencing—and thus whether there is a problem with the current
version of the standard form—but two of our sister circuits have answered no. See United
States v. Garcia,
522 F.3d 855, 861 (9th Cir. 2008); United States v. Lewandowski,
372 F.3d 470,
471 (1st Cir. 2004). In any event, at sentencing Del Monico did not raise an issue about the
number of drug tests, and even if it was error not to designate a precise number up front,
we would not conclude that there was plain error because the district court remains free to
modify the conditions of supervised release. See
18 U.S.C. § 3583(e)(2); FED R. CRIM. P.
32.1(c); United States v. Tejeda,
476 F.3d 471, 475 (7th Cir. 2007); United States v. McKissic,
428
F.3d 719, 726 (7th Cir. 2005). Thus, we agree with counsel that it would be frivolous to raise
this challenge on appeal.
Finally, appellate counsel correctly point out that any challenge to the effectiveness
of Del Monico’s trial counsel is best left to a collateral proceeding where a more complete
record can be developed. See Massaro v. United States,
538 U.S. 500, 504‐05 (2003); United
States v. Harris,
394 F.3d 543, 557‐58 (7th Cir. 2005).
No. 09‐1607 Page 4
For the foregoing reasons, we GRANT counsel’s motion to withdraw and DISMISS
Del Monico’s appeal.
