                            UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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

                                           2
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

                                         4
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.



                                      6
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

                                           7
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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