United States v. David Crummy

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4125
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
DAVID CRUMMY, a/k/a Disco Dave,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (7:11-cr-00105-F-1)
Submitted: March 25, 2014 Decided: May 29, 2014
Before KEENAN and FLOYD, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Affirmed in part, dismissed in part by unpublished per curiam
opinion.
Seth A. Neyhart, STARK LAW GROUP, PLLC, Chapel Hill, North
Carolina, for Appellant. Thomas G. Walker, United States
Attorney, Jennifer P. May-Parker, Kristine L. Fritz, Assistant
United States Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
David Crummy seeks to appeal the 180-month sentence
imposed by the district court after he pled guilty, pursuant to
a plea agreement, to conspiracy to possess with intent to
distribute and distribute 280 grams or more of cocaine base and
a quantity of cocaine, in violation of 21 U.S.C. § 846 (2012),
and the district court’s denial of his motion for recusal. On
appeal, Crummy asserts that the district court should have
granted his motion for recusal and that his sentence is
unreasonable. The Government asserts that Crummy’s appeal of
his sentence should be dismissed based on the waiver of
appellate rights included in the plea agreement. Finding no
error, we affirm in part and dismiss in part.
First, Crummy argues that the district court should
have recused itself. We review a recusal decision for abuse of
discretion. United States v. Whorley, 550 F.3d 326, 339 (4th
Cir. 2008). A district court should grant a motion for recusal
if the judge’s “impartiality might reasonably be questioned.”
28 U.S.C. § 455(a) (2012); * see United States v. Cherry, 330 F.3d
658, 665 (4th Cir. 2003). “[R]emarks . . . that are critical or
disapproving of, or even hostile to, counsel, the parties, or
*
We reject Crummy’s attempt for the first time on appeal to
rely on 28 U.S.C. § 144 (2012), as a basis for recusal.
2
their cases, ordinarily do not support a bias or partiality
challenge.” Liteky v. United States, 510 U.S. 540, 555 (1994).
Crummy argues that the district court’s comments
during a co-conspirator’s sentencing proceeding indicate that it
may not have been impartial or that it relied on extrajudicial
sources. We have carefully reviewed the record on appeal and
conclude that Crummy’s contentions are without merit. The
district court had extensive prior involvement in Crummy’s and
his co-conspirators’ cases and would have reviewed Crummy’s
background in order to properly evaluate the 18 U.S.C. § 3553(a)
(2012) factors. Moreover, the district court’s comments in this
case did not rise to the type of “particularly egregious
conduct” warranting recusal. Belue v. Leventhal, 640 F.3d 567
573 (4th Cir. 2011). Accordingly, the district court did not
abuse its discretion in denying Crummy’s recusal motion.
Next, Crummy argues that his sentence is unreasonable
because he should have received a greater reduction for his
substantial assistance. Where, as here, the government seeks to
enforce an appeal waiver and did not breach its obligations
under the plea agreement, we will enforce the waiver if it was
knowing and intelligent and the issues raised on appeal fall
within its scope. United States v. Blick, 408 F.3d 162, 168-69
(4th Cir. 2005). We review the validity of an appellate waiver
3
de novo. United States v. Manigan, 592 F.3d 621, 626 (4th Cir.
2010).
Crummy does not assert on appeal that the appellate
waiver was not knowing or intelligent or that his agreement to
the waiver was in any way involuntary. Our review of the plea
hearing transcript confirms that Crummy was competent to plead
guilty and that he understood the terms of the plea agreement.
The court specifically questioned Crummy about the appellate
waiver and ascertained that he understood he was waiving his
right to appeal his sentence by entering the plea agreement.
See United States v. Thornsbury, 670 F.3d 532, 537 (4th Cir.),
cert. denied, 133 S. Ct. 196 (2012). Because the district court
sentenced Crummy well below the statutory maximum and below the
bottom of the applicable Guidelines range, and he raises no
sentencing claim outside the scope of the waiver, we conclude
that the waiver is valid and enforceable.
Accordingly, we dismiss Crummy’s appeal of his
sentence and affirm the district court’s denial of Crummy’s
recusal motion. We dispense with oral argument because the
facts and legal contentions are adequately presented in the
materials before this court and argument would not aid in the
decisional process.
AFFIRMED IN PART;
DISMISSED IN PART
4