                            UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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.



                                         4
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

                                               5
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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