United States v. Clark ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT December 21, 2006
_______________________
Charles R. Fulbruge III
No. 05-11072 Clerk
_______________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TERRELL M. CLARK,
Defendant-Appellant.
On Appeal from the United States District Court
for the Northern District of Texas
No. 4:04-CR-70-3
Before JONES, Chief Judge, and DAVIS and GARZA, Circuit Judges.
EDITH H. JONES, Chief Judge:*
Terrell M. Clark pled guilty to stealing a firearm from
a licensed dealer in violation of 18 U.S.C. §§ 924(m), (c)(1)(A),
and was sentenced, after an upward departure, to 240 months in
prison. Clark now appeals his sentence, arguing that the district
court erred in finding he committed an additional robbery by a
preponderance of the evidence, denying his motion to recuse, and
imposing an unreasonable sentence. Finding no reversible error, we
AFFIRM.
*
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opinion should not be published and is not precedent except under the limited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.
I. BACKGROUND
In June 2004, Terrell Clark pled guilty to the November
2003 robbery of the 183 Pawn Shop (“183 robbery”) near Fort Worth,
Texas, in violation of 18 U.S.C. § 924(m), (c)(1)(A). Prior to his
guilty plea, Clark entered into a cooperation agreement with the
government, pursuant to U.S.S.G. § 1B1.8, in which he agreed to
disclose his knowledge of crimes committed by himself and others.
During interviews with authorities, Clark admitted that he robbed
the Alvarado Pawn Shop (“Alvarado robbery”) in Alvarado, Texas in
August 2003.
At Clark’s sentencing for the 183 robbery in October
2004, the district court found by a preponderance of the evidence
that Clark committed the Alvarado robbery. Even though the
government believed it did not have enough information to reach
this conclusion without Clark’s admission during the cooperation
interviews, the court overruled Clark’s and the government’s
objections to its consideration of the firearms stolen in that
robbery.
In determining Clark’s sentence, the court started with
a base offense level of eighteen and added six levels pursuant to
U.S.S.G. § 2K2.1(b)(1)(C) because Clark and his associates had
taken twenty-eight firearms in both the Alvarado and 183 robberies.
After making other guidelines adjustments, the guideline sentence
range was 154-171 months. The government requested a downward
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departure for Clark’s cooperation, but the court upwardly departed
from the guideline range and imposed a sentence of 240 months. In
reaching the 240-month sentence, the court asserted that it had
actually departed downward from the guideline range of 454-471
months Clark would have faced had he been convicted of the Alvarado
robbery. After Clark appealed and the government moved to vacate
the sentence, this court, in a brief opinion, vacated Clark’s
sentence and remanded for resentencing. United States v. Clark,
132 F.App’x 529 (5th Cir. 2005) (unpublished).
On August 30, 2005, two days before resentencing, Clark
moved to recuse Judge McBryde, but the court denied the motion and
reimposed the 240-month sentence. The court based this decision on
an expanded record of information regarding the Alvarado robbery
that the government provided, including twelve new exhibits. This
information had been part of the government’s file before the first
sentencing but was previously not furnished to the court.
Excluding Clark’s admission during his cooperation interviews, the
district court again found by a preponderance of the evidence that
Clark had committed the Alvarado robbery. Clark now appeals.
II. STANDARD OF REVIEW
“Factual bases for sentencing need only be shown by a
preponderance of the evidence and are reviewed for clear error.”
United States v. Froman, 355 F.3d 882, 893 n.10 (5th Cir. 2004);
see also United States v. Shacklett, 921 F.2d 580, 584 (5th Cir.
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1991). “In order to satisfy this clear error test all that is
necessary is that the finding be plausible in light of the record
as a whole.” United States v. Edwards, 303 F.3d 606, 645 (5th Cir.
2002). After United States v. Booker, 543 U.S. 220, 125 S. Ct. 738
(2005), this court reviews a defendant’s sentence, including an
upward departure, for reasonableness. United States v. Mares,
402 F.3d 511, 519-20 (5th Cir. 2005). Moreover, this court reviews
“the district court’s decision to depart upwardly and the extent of
that departure for abuse of discretion.” United States v. Zuniga-
Peralta, 442 F.3d 345, 347 (5th Cir. 2006).
III. DISCUSSION
A. Alvarado Robbery
Clark initially contends that, excluding his admission
during a protected cooperation interview, there was insufficient
evidence that he committed the Alvarado robbery. Sentencing courts
are prohibited from using self-incriminating information provided
pursuant to a cooperation agreement in determining the guideline
range. U.S.S.G. § 1B1.8(a); see also Shacklett, 921 F.2d at 582.
However, the court may use information “known to the government
prior to entering into the cooperation agreement.” U.S.S.G.
§ 1B1.8(b)(1); see also United States v. Betancourt, 422 F.3d 240,
247 (5th Cir. 2005); United States v. Marsh, 963 F.2d 72, 74 (5th
Cir. 1992).
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Considering the evidence as a whole, and excluding
Clark’s admission during the cooperation interview, the district
court did not clearly err in finding by a preponderance of the
evidence that Clark committed the Alvarado robbery. Investigators
noted that the 183 and Alvarado robberies were similar, and victims
identified Clark as a potential suspect in the Alvarado robbery.
Moreover, Clark possessed firearms from the Alvarado robbery in his
house, and, of the three Alvarado robbery suspects, Clark was the
only one to whom items taken in the Alvarado robbery had been
traced. Finally, Clark transferred a gun from the Alvarado robbery
to an associate, and he planned a robbery around the time that the
Alvarado robbery occurred. The district court’s upward departure
based on the Alvarado robbery was not clear error. See, e.g.,
United States v. Reveles, 190 F.3d 678, 685 (5th Cir. 1999) (no
clear error in finding that all shipments contained marijuana);
United States v. Boutte, 13 F.3d 855, 860 (5th Cir. 1994) (no clear
error in finding that defendant was organizer or leader).
B. Judicial Recusal
Clark next contends that the district court abused its
discretion by denying his motion to recuse from resentencing
because the court “went to great pains” to discredit the testimony
of the government’s agent. He also suggests that the court’s bias
is evidenced by its imposition of a lesser sentence on Clark’s co-
defendant. This court reviews the denial of a motion to disqualify
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under 28 U.S.C. § 455 for abuse of discretion. See Sensley v.
Allbritton, 385 F.3d 591, 598 (5th Cir. 2004).
Section 455(a) requires that “[a]ny . . . judge . . . of
the United States shall disqualify himself in any proceeding in
which his impartiality might reasonably be questioned.” We have
interpreted this statute “to require recusal if a reasonable
person, knowing all of the facts, would harbor doubts concerning
the judge’s impartiality.” Sensley, 385 F.3d at 599 (citing
Liljeberg v. Health Serv. Acquisition Corp., 486 U.S. 847, 860-61,
108 S. Ct. 2194, 2203 (1988)). However, the Supreme Court noted in
Liteky v. United States, 510 U.S. 540, 555, 114 S. Ct. 1147, 1157
(1994), that “judicial rulings alone almost never constitute a
valid basis for a bias or partiality motion.” See also United
States v. Mizell, 88 F.3d 288, 300 (5th Cir. 1996) (noting that the
“grounds for recusal that Mizell asserts consist of judicial
rulings which the district judge was required to make”) (emphasis
in original).
We cannot review arguments that Clark raises for the
first time on appeal. See Andrade v. Chojnacki, 338 F.3d 448, 454
(5th Cir. 2003) (“[r]equests for recusal raised for the first time
on appeal are generally rejected as untimely”) (citing Sanford,
157 F.3d at 988-89). Clark argued before the district court that
the motion to recuse should be granted because the court had
previously used information protected by the cooperation agreement
at his first sentencing. He abandons this argument on appeal and
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asserts two new grounds for recusal. As we noted in Andrade, Clark
raises these new arguments after an adverse judgment and for the
first time on appeal. See 338 F.3d at 459. These arguments will
not be considered.
But even if we employ plain-error review “for the sake of
argument,” see id. at 459 n.4, Clark’s contentions are meritless.
He complains of judicial decisions that the court was required to
make and which are insufficient to question the court’s
impartiality. See Mizell, 88 F.3d at 300; see also United States
v. Landerman, 109 F.3d 1053, 1066 (5th Cir. 1997) (“[T]he judge’s
rulings should constitute grounds for appeal, not for recusal.”).
There is no evidence that Judge McBryde relied upon knowledge
acquired outside the judicial proceedings or displayed a
“deepseated animosity” toward Clark that rendered “fair judgment
impossible.” See Liteky, 510 U.S. at 556, 114 S. Ct. at 1158.
C. Reasonableness
Clark next challenges the reasonableness of his 240-month
sentence when compared to the 192-month sentence his co-defendant
received. Clark concedes that the district court took into account
the sentencing factors in 18 U.S.C. § 3553(a) and recognized the
sentencing disparity, yet he argues that the district court failed
to consider the factor of disparity in § 3553(a)(6).
The district court adequately explained that its reasons
for increasing Clark’s sentence above the guideline range were
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grounded in the factors articulated in 18 U.S.C. § 3553(a). See
Zuniga-Peralta, 442 F.3d at 347-49. The court addressed the
disparity between the two sentences by stating that it had
disbelieved Clark’s testimony at Rhodes’s trial that Rhodes had
participated in the Alvarado robbery, but it had found by a
preponderance of the evidence that Clark participated in the
Alvarado robbery. Cf. United States v. Smith, 440 F.3d 704, 709
(5th Cir. 2006); United States v. Candia, 454 F.3d 468, 477 (5th
Cir. 2006). Whether or not this court would have issued the same
sentence, we cannot conclude that it was unreasonable.
D. Sentencing Error
Relying upon Apprendi v. New Jersey, 530 U.S. 466, 120 S.
Ct. 2348 (2000), Clark argues that the district court erred by
increasing his sentence based upon facts not included in the
indictment and not proven to a jury beyond a reasonable doubt.
Clark’s argument is foreclosed by United States v. Mares, 402 F.3d
511, 519 (5th Cir. 2005). Finally, Clark argues that his sentence
on remand exceeded the maximum authorized sentence under the
Sentencing Guidelines before United States v. Booker, 543 U.S. 220,
125 S. Ct. 738 (2005), in violation of the Ex Post Facto Clause.
This argument has been rejected by United States v. Scroggins,
411 F.3d 572, 575 (5th Cir. 2005).
IV. CONCLUSION
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For the reasons stated above, Clark’s sentence is
AFFIRMED.
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