UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4935
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
THOMAS JOSEPH DALTON,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. Terry L. Wooten, District Judge.
(4:09-cr-00339-TLW-1)
Submitted: July 22, 2011 Decided: August 15, 2011
Before WILKINSON, MOTZ, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
William W. Watkins, Sr., WILLIAM W. WATKINS, P.A., Columbia,
South Carolina, for Appellant. Dean A. Eichelberger, Assistant
United States Attorney, Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Thomas Joseph Dalton pled guilty pursuant to a plea
agreement to one count of conspiracy to defraud the United
States and the Internal Revenue Service, in violation of 18
U.S.C. § 286 (2006). Counsel has filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), asserting there are
no meritorious arguments for appeal, but raising for the court’s
consideration whether two prior credit card fraud convictions
should have been considered relevant conduct instead of being
counted for Criminal History purposes. Dalton has filed a brief
amplifying this issue and raising several others, mostly
concerning sentencing. The Government did not file a brief. We
affirm.
Relevant conduct may be used to increase an offense
level if it was part of the same course of conduct or a common
scheme or plan as the offense of conviction. See USSG § 1B1.3.
Prior sentences may be used to determine the defendant’s
Criminal History Category. See U.S. Sentencing Guidelines
Manual § 4A1.2(a) (2010). In this instance, the district court
properly found that Dalton’s prior convictions and sentences for
credit card fraud should be counted toward his Criminal History
Category. The conduct at the heart of Dalton’s credit card
fraud convictions occurred prior to the conspiracy charged in
this instance and it did not entail engaging in fraudulent
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conduct toward the United States or the Internal Revenue
Service.
In his pro se supplemental brief, Dalton has raised
several claims concerning sentencing. With regard to the order
of restitution, Dalton did not challenge the district court’s
authority to order restitution, which was discussed during the
Rule 11 hearing, or the amount of restitution as noted in the
Presentence Investigation Report (“PSR”). Accordingly, this
Court’s review is for plain error. See United States v. Hughes,
401 F.3d 540, 547 (4th Cir. 2005). Under the plain error
standard, Dalton must show that: (1) there was error; (2) the
error was plain; and (3) the error affected his substantial
rights. United States v. Olano, 507 U.S. 725, 732-34 (1993).
Even when these conditions are satisfied, this court may
exercise its discretion to notice the error only if the error
“seriously affect[s] the fairness, integrity or public
reputation of judicial proceedings.” Id. at 736 (internal
quotation marks omitted).
Because there was an identifiable victim that suffered
a pecuniary loss, restitution was mandatory. See 18 U.S.C.
§ 3663A(c)(1)(B) (2006); See United States v. Leftwich, 628 F.3d
665, 668 (4th Cir. 2010). Furthermore, the court was not
authorized to consider Dalton’s ability to pay restitution. “In
each order of restitution, the court shall order restitution to
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each victim in the full amount of each victim’s losses . . . and
without consideration of the economic circumstances of the
defendant.” 18 U.S.C. § 3664(f)(1)(A) (2006). We note that the
amount of restitution was based on specific information
contained in the PSR. We further note that the district court
“may accept any undisputed portion of the presentence report as
a finding of fact[.]” Fed. R. Crim. P. 32(i)(3)(A). Based on
the record before us, we conclude there was no plain error.
We also conclude there was no plain error with respect
to the special conditions imposed for Dalton’s period of
supervised release. District courts have broad latitude to
order special conditions of supervised release and review is for
abuse of discretion. See United States v. Holman, 532 F.3d 284,
288 (4th Cir. 2008). A court may order special conditions of
supervised release provided the conditions are reasonably
related to the § 3553(a) sentencing factors. See 18 U.S.C.
§ 3583(d)(1) (2006). Special conditions may be ordered in
consideration of the nature and circumstances of the offense,
the history and characteristics of the defendant, in order to
deter the defendant from engaging in further criminal conduct
and to protect the public from his misdeeds. Id. In this
instance, the special conditions were directly related to the
§ 3553(a) sentencing factors.
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We also conclude there was no plain error with regard
to the amount of intended loss as stated in the PSR. The record
supports this amount and there is nothing to suggest it was
overstated. In addition, there was no plain error regarding the
decision not to give Dalton credit for acceptance of
responsibility, nor was Dalton denied his right to due process
in this instance. In considering whether a defendant is
eligible for an offense level reduction based on acceptance of
responsibility, it is appropriate to consider whether the
defendant terminated his criminal conduct. See USSG § 3E1.1
(comment., n. 1(b)). Because it appears Dalton did not end his
criminal conduct after he pled guilty, “receipt of a sentence
reduction for acceptance of responsibility would have been []
ludicrous[.]” Puckett v. United States, 556 U.S. 129, __, 129
S. Ct. 1423, 1433 (2009). Because Dalton did not challenge the
PSR’s findings in this regard, the district court could accept
the findings. Fed. R. Crim. P. 32(i)(3)(A). In addition
because Dalton was given the opportunity to challenge this
finding at sentencing and did not, his right to due process was
not violated.
We further conclude that the within-Guidelines
sentence of ten years’ imprisonment was both procedurally and
substantively reasonable.
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Dalton claims he was denied the right to counsel of
his own choosing when the district court relieved Dalton’s first
counsel after finding that there may be conflict. “[T]he Sixth
Amendment secures the right to the assistance of counsel, by
appointment if necessary, in a trial for any serious crime.”
Wheat v. United States, 486 U.S. 153, 158 (1988). “[I]n
evaluating Sixth Amendment claims, the appropriate inquiry
focuses on the adversarial process, not on the accused’s
relationship with his lawyer as such.” Id. at 159 (internal
quotation marks and citation omitted). “[T]he essential aim of
the [Sixth] Amendment is to guarantee an effective advocate for
each criminal defendant rather than to ensure that a defendant
will inexorably be represented by the lawyer whom he prefers.”
Id. The right to choose one’s counsel does not necessarily
include the right to choose counsel that may be operating under
a possible conflict of interest. Id. at 159-60; see also
Hoffman v. Leeke, 903 F.2d 280, 285 (4th Cir. 1990) (“[T]he
Sixth Amendment right to counsel includes the right to effective
assistance free of conflicts of interest[.]”).
The Supreme Court recognized that not all conflicts
may be waived by the defendant because “[f]ederal courts have an
independent interest in ensuring that criminal trials are
conducted within the ethical standards of the profession and
that legal proceedings appear fair to all who observe them.”
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Wheat, 486 U.S. at 160. The presumption in favor of a counsel
of one’s choosing may be overcome by a showing of an actual
conflict of interest or the serious potential for a conflict of
interest. United States v. Basham, 561 F.3d 302, 323 (4th Cir.
2009). The court has a duty to anticipate problems with
representation and to promptly act to remedy a potential
conflict. Id.
The district court is afforded discretion to determine
whether to disqualify counsel due to a potential conflict of
interest. United States v. Williams, 81 F.3d 1321, 1324-25 (4th
Cir. 1996). When confronted with a potential conflict of
interest, the district court is obligated to independently
determine whether the continued representation by counsel
impedes the integrity of the proceedings and whether the
attorney should thus be disqualified. Wheat, 486 U.S. at 161-
64. For this purpose, the court “must have sufficiently broad
discretion to rule without fear that it is setting itself up for
reversal on appeal either on right-to-counsel grounds if it
disqualifies the defendant’s chosen lawyer, or on ineffective-
assistance grounds if it permits conflict-infected
representation of the defendant.” Williams, 81 F.3d at 1324.
(citing Wheat, 486 U.S. at 160).
We conclude the district court did not abuse its
discretion in this regard. The court heard evidence that
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implicated counsel’s ability to raise mitigating arguments for
Dalton at sentencing. In addition, it was noted that counsel
was at risk at being called to testify if the Government elected
to initiate criminal proceedings against Dalton based on new
criminal conduct.
Finally, we conclude that Dalton’s ineffective
assistance of counsel claim is not ripe for review. Unless
counsel’s ineffectiveness is conclusively apparent on the face
of the record, ineffective assistance claims are not generally
addressed on direct appeal. United States v. Benton, 523 F.3d
424, 435 (4th Cir. 2008); United States v. Richardson, 195 F.3d
192, 198 (4th Cir. 1999) (providing standard and noting that
ineffective assistance of counsel claims generally should be
raised by motion under 28 U.S.C.A. § 2255 (West Supp. 2011)).
Because there is no conclusive evidence on the record that
counsel rendered ineffective assistance, the issue will not be
reviewed at this juncture.
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
We therefore affirm Dalton’s conviction and sentence. This
court requires that counsel inform Dalton, in writing, of the
right to petition the Supreme Court of the United States for
further review. If Dalton requests that a petition be filed,
but counsel believes that such a petition would be frivolous,
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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 Dalton. 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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