United States v. Graves

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4634
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ALLEN GAYLORD GRAVES,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. William L. Osteen, District
Judge. (CR-04-448)
Submitted: February 17, 2006 Decided: March 10, 2006
Before WILKINSON, LUTTIG, and WILLIAMS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Louis C. Allen, III, Federal Public Defender, Greensboro, North
Carolina, for Appellant. Michael Francis Joseph, Assistant United
States Attorney, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Allen Gaylord Graves appeals his convictions and seventy-
month sentence imposed following his guilty plea to four counts of
bank robbery, in violation of 18 U.S.C. § 2113(a) (2000). Graves’
counsel filed a brief pursuant to Anders v. California, 386 U.S.
738 (1967), stating that there were no meritorious grounds for
appeal but questioning whether the court should have recused itself
because it owned a small percentage of stock in one of the victim
banks. Graves was notified of his opportunity to file a pro se
supplemental brief but has not done so. Finding no error, we
affirm.
Because Graves did not object to his sentence below, we
review it for plain error. See Fed. R. Crim. P. 52(b). To meet
the plain error standard: (1) there must be an error; (2) the
error must be plain; and (3) the error must affect substantial
rights. United States v. Olano, 507 U.S. 725, 732-34 (1993). If
the three elements of plain error are met, this court exercises its
discretion to notice error only if the error seriously affects “the
fairness, integrity, or public reputation of judicial proceedings.”
Id. at 736 (citation omitted).
In United States v. Sellers, 566 F.2d 884, 887 (4th Cir.
1977), we noted that in accordance with 28 U.S.C. § 455, a judge
“shall disqualify himself in any proceeding in which his
impartiality might reasonably be questioned.” Further, a judge
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shall disqualify himself when “[h]e knows that he, individually or
as a fiduciary, or his spouse or minor child residing in his
household, has a financial interest in the subject matter in
controversy or in a party to the proceeding, or any other interest
that could be substantially affected by the outcome of the
proceeding.” 28 U.S.C. § 455(b)(4). However, for recusal to be
mandatory, there must be a “reasonable factual basis for doubting
the judge’s impartiality.” Sellers, 566 F.2d at 887 (citation
omitted).
Here, the district court informed Graves on two occasions
that it owned a small percentage of stock in one of the victim
banks, gave Graves the opportunity to object, and Graves did not do
so. After a comprehensive hearing, during which the court
considered Graves’ individual circumstances, the court sentenced
Graves at the low end of the guidelines range. We therefore find
no “reasonable factual basis for doubting the judge’s
impartiality.” Thus, the district court did not err when it did
not voluntarily recuse itself. Even if plain error occurred, we
conclude the error did not affect Graves’ substantial rights
because his sentence was at the lowest end of a properly calculated
guidelines range. For the same reason, we also conclude that his
sentence was reasonable. See United States v. Green, ___ F.3d ___,
2006 WL 267217 (4th Cir. Feb. 6, 2006) (No. 05-4270).
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In accordance with the requirements of Anders, we have
reviewed the entire record in this case and have found no
meritorious issues for appeal. Accordingly, we affirm Graves’
convictions and sentence. This court requires that counsel inform
his client, in writing, of his right to petition the Supreme Court
of the United States for further review. If the client 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 the client.
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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