                             UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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



                                           4
              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

                                                 7
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,

                                         8
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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