United States v. Shearer ( 1999 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-11299
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JEROME SHEARER, JR.,
Defendant-Appellant.
- - - - - - - - - -
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:97-CR-80-1-A
- - - - - - - - - -
December 29, 1998
Before HIGGINBOTHAM, JONES, and DENNIS, Circuit Judges.
PER CURIAM:*
Jerome Shearer, Jr., argues that the district court abused
its discretion in denying his 28 U.S.C. § 455(a) motion to recuse
the district judge from presiding in his case. Shearer argues
that the fact that his counsel was subpoenaed to provide
testimony adverse to the district judge’s interest would have
caused a reasonable person to question the judge’s ability to be
impartial during the proceedings.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 97-11299
-2-
We have reviewed the record, and the briefs of the parties,
including the brief submitted by Judge McBryde, and affirm the
denial of the motion on grounds different than those relied upon
by the district court. See Hanchey v. Energas Co., 925 F.2d 96,
97 (5th Cir. 1990).
We have determined that Shearer waived his right to
challenge the district court’s denial of the motion to recuse by
entering into an unconditional guilty plea after the district
court had denied his recusal motion. See United States v.
Hoctel, F.3d , No. 97-50916, 1998 WL 611106 at **2-3 (5th
Cir. Sept. 11, 1998).
AFFIRMED.