Filed: Aug. 25, 2011
Latest Update: Feb. 22, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-5081 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. MARK THOMAS DELMONTE, Defendant - Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Asheville. Martin K. Reidinger, District Judge. (1:09-cr-00074-MR-1) Submitted: May 26, 2011 Decided: August 25, 2011 Before WILKINSON and WYNN, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished per curiam op
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-5081 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. MARK THOMAS DELMONTE, Defendant - Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Asheville. Martin K. Reidinger, District Judge. (1:09-cr-00074-MR-1) Submitted: May 26, 2011 Decided: August 25, 2011 Before WILKINSON and WYNN, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished per curiam opi..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-5081
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MARK THOMAS DELMONTE,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Martin K. Reidinger,
District Judge. (1:09-cr-00074-MR-1)
Submitted: May 26, 2011 Decided: August 25, 2011
Before WILKINSON and WYNN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Barry P. Beck, POWER, BECK & MATZUREFF, Martinsburg, West
Virginia, for Appellant. Anne M. Tompkins, United States
Attorney, Jennifer A. Youngs, Assistant United States Attorney,
Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Mark Thomas Delmonte appeals the $21,131 restitution
order entered after Delmonte pleaded guilty to twelve counts of
destruction or injury of a motor vehicle in violation of 18
U.S.C. § 1363 (2006), four counts of larceny within the
territorial jurisdiction of the United States in violation of 18
U.S.C. § 661 (2006), and one count of possession of a stolen
firearm in violation of 18 U.S.C. § 922(j) (2006). We affirm.
Delmonte first argues that his right to counsel was
violated. After Delmonte’s attorney presented numerous
arguments during the sentencing hearing, including multiple
challenges related to the appropriate amount of restition, the
district court granted the parties fifteen days following the
hearing to submit additional arguments regarding the amount of
restitution. Delmonte’s attorney did not submit further
arguments, and Delmonte alleges that his attorney sent him a
letter claiming that any additional arguments would be
frivolous. After the expiration of the fifteen-day window,
Delmonte’s attorney filed a motion to withdraw from further
representation of Delmonte. Because his attorney moved to
withdraw and informed Delmonte that he would no longer act on
his behalf, Delmonte asserts that he was denied the right to
counsel.
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An appellant’s allegation that he was denied rights
under the Sixth Amendment is reviewed de novo. See United
States v. DeTemple, 162 F.3d 279, 289 (4th Cir. 1998) (applying
de novo review to ineffective assistance of counsel claim). The
Sixth Amendment guarantees that “[i]n all criminal prosecutions,
the accused shall enjoy the right . . . to have the Assistance
of Counsel for his defense.” U.S. Const. amend. VI. That
language entitles a criminal defendant to effective assistance
of counsel at each critical stage of his prosecution. United
States v. Taylor,
414 F.3d 528, 535 (4th Cir. 2005). This
includes sentencing. Mempa v. Rhay,
389 U.S. 128, 134-37
(1967).
Delmonte asserts that his “counsel effectively ceased
representing him after his sentencing hearing and before the
restitution issue was fully adjudicated.” Because Delmonte
concedes that his attorney was present and represented him at
all stages of the proceedings, the government argues that
Delmonte’s Sixth Amendment right to counsel was not violated.
However, the mere fact that Delmonte was represented by counsel
is not dispositive. Courts have previously recognized a
“constructive denial” of the right to counsel when, for
instance, a complete breakdown of attorney-client communication
precluded effective representation, see Daniels v. Woodford, 428
F.3d 1181 (9th Cir. 2005), or an attorney completely failed to
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“subject the prosecution’s case to meaningful adversarial
testing.” United States v. Cronic, 466 U.S. 648, 659 (1984).
Nonetheless, we have reviewed the record and conclude
that Delmonte was neither completely nor constructively denied
his right to counsel. As noted by the government, Delmonte was
represented at all stages of the proceedings below. Moreover,
at sentencing, Delmonte’s attorney raised a number of challenges
to the calculation of the amount of restitution suggested by the
Probation Office in Delmonte’s presentence report.
On these facts, we discern no constructive denial of
Delmonte’s right to counsel. Delmonte’s own assertions
demonstrate that after the sentencing hearing, but before the
final adjudication of the restitution issue, the lines of
communication between Delmonte and his lawyer remained open.
Moreover, insofar as Delmonte’s attorney raised a number of
challenges to the amount of restitution suggested, we cannot
hold that the prosecution’s case escaped adversarial testing. *
Next, Delmonte challenges the sufficiency of the
evidence proffered in support of the restitution order. We
*
To the extent that Delmonte is actually raising an
ineffective assistance of counsel claim, it does not
“conclusively appear[] in the trial record itself that the
defendant was not provided . . . effective representation,”
United States v. Mandello, 426 F.3d 1021, 1023 (4th Cir. 1970),
so the claim is not appropriately considered on direct appeal.
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review orders of restitution for abuse of discretion. See
United States v. Llamas, 599 F.3d 381, 391 (4th Cir. 2010). A
district court abuses its discretion when it “acts arbitrarily
or irrationally, fails to consider judicially recognized factors
constraining its exercise of discretion, relies on erroneous
factual or legal premises, or commits an error of law.” United
States v. Delfino,
510 F.3d 468, 470 (4th Cir. 2007). A
district court’s calculation of loss is a finding of fact
reviewed for clear error. United States v. Dozie,
27 F.3d 95,
99 (4th Cir. 1994). The government has the burden of proving
sentencing factors by a preponderance of the evidence. See
United States v. Estrada,
42 F.2d 228, 231 (4th Cir. 1994). In
proving these factors, the government may rely upon information
found in a defendant’s presentence report unless the defendant
affirmatively shows that such information is inaccurate or
unreliable. See United States v. Gilliam,
987 F.2d 1009, 1013
(4th Cir. 1993).
The Mandatory Victim Restitution Act (“MVRA”) requires
restitution for the full amount of the victim’s loss for “an
offense against property under [Title 18].” 18 U.S.C.
§ 3663A(c)(1)(A)(ii) (2006). Under the MVRA, the Probation
Office must compile a report containing a “complete accounting”
of the losses to each victim. 18 U.S.C. § 3664(a) (2006).
Delmonte argues that the evidence provided by the probation
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office is not a complete accounting, and the record is
insufficient to provide for proper appellate review of the
restitution order.
Here, the Probation Office set forth the name of each
victim, the amount of loss claimed, the property recovered, and
the sum total of loss for restitution purposes. Delmonte made
specific arguments challenging certain claims of loss (such as
one victim’s claim that Delmonte stole ten $100 bills from his
vehicle). The district court considered those arguments and
adjusted the restitution amount based on its findings. After a
review of the record, we conclude that the court’s findings were
supported by a preponderance of the evidence and the court did
not clearly err in calculating the amount of loss for
restitution.
Accordingly, we affirm the judgment of the district
court. 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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