United States v. Eugene Leclear

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 18-4857
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
EUGENE ROBERT LECLEAR,
Defendant - Appellant.
Appeal from the United States District Court for the Northern District of West Virginia,
at Wheeling. John Preston Bailey, District Judge. (5:18-cr-00035-JPB-JPM-1)
Submitted: August 1, 2019 Decided: September 3, 2019
Before NIEMEYER, FLOYD, and HARRIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Christopher J. Gagin, MCCAMIC, SACCO & MCCOID, PLLC, Wheeling, West
Virginia, for Appellant. William J. Powell, United States Attorney, Randolph J. Bernard,
Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Wheeling, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Eugene Robert LeClear appeals the 30-month sentence imposed by the district
court following his guilty plea to wire fraud, in violation of 18 U.S.C. § 1343 (2012).
LeClear argues that the district court judge improperly failed to notify LeClear of his
social media relationship with a restitution recipient 1 or to recuse himself based on that
relationship. LeClear also asserts that the district court imposed a procedurally and
substantively unreasonable sentence. We affirm.
We review LeClear’s recusal claim for plain error because LeClear did not move
for recusal in the district court. 2 Fed. R. Crim. P. 52(b); United States v. Minard,
856 F.3d 555, 557 (8th Cir. 2017) (stating standard of review); see United States v. Stitz,
877 F.3d 533, 536 (4th Cir. 2017) (providing standard), cert. denied, 138 S. Ct. 1572
(2018). LeClear asserts that there was an appearance of impropriety pursuant to
28 U.S.C. § 455(a) (2012), but he only cites the district court’s sentencing decisions and
the bare fact of the district court judge’s social media connections to a recipient of
restitution in this case. Standing alone, a social media connection or similar personal
contact does not merit recusal: “the more common a potentially biasing circumstances
and the less easily avoidable it seems, the less that circumstance will appear to a
knowledgeable observer as a sign of partiality.” United States v. DeTemple,
1
In his plea agreement, LeClear agreed to pay restitution to the recipient, who was
not a victim of the offense of conviction, in exchange for dismissal of other charges.
2
LeClear’s due process rights were not violated by the district court’s failure to
disclose his social media connection to the restitution recipient.
2
162 F.3d 279, 287 (4th Cir. 1998) (internal quotation marks omitted); see United States v.
Cherry, 330 F.3d 658, 666 (4th Cir. 2003); see also United States v. Stone, 866 F.3d 219,
230 (4th Cir. 2017) (in applying § 455(a), court’s consider “whether the judge’s
impartiality might be questioned by a reasonable, well-informed observer who assesses
all the facts and circumstances” (internal quotation marks omitted)). We conclude that
LeClear has not established plain error here.
Finally, “[w]e review a sentence for reasonableness ‘under a deferential
abuse-of-discretion standard.’” United States v. McCoy, 804 F.3d 349, 351 (4th
Cir. 2015) (quoting Gall v. United States, 552 U.S. 38, 41 (2007)). The district court
correctly calculated the advisory Sentencing Guidelines range and gave the parties an
opportunity to be heard. See Gall, 552 U.S. at 49-51. LeClear argues that the district
court inadequately selected and explained its chosen sentence. But the district court
specifically discussed the 18 U.S.C. § 3553(a) (2012) factors, the severity of the crime,
the effects on the victims, and the characteristics of LeClear’s offense conduct. Thus,
LeClear’s sentence is procedurally reasonable. See Rita v. United States, 551 U.S. 338,
356 (2007).
We next consider whether the sentence imposed is substantively reasonable under
“the totality of the circumstances, including the extent of any variance from the
Guidelines range.” Gall, 552 U.S. at 51. When a district court imposes a sentence
outside of the Guidelines range, we “must consider the extent of the deviation and ensure
that the justification is sufficiently compelling to support the degree of variance.” United
States v. Zuk, 874 F.3d 398, 409 (4th Cir. 2017) (internal quotation marks omitted). But
3
the district court need not find “extraordinary circumstances” to justify a deviation from
the Guidelines range. Gall, 552 U.S. at 47. In this case, the district court did not abuse
its discretion in concluding that LeClear’s extraordinary methods and effects on his
community justified an upward variance, and we conclude that LeClear’s sentence is
substantively reasonable.
Accordingly, we affirm the district court’s judgment. 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 the decisional process.
AFFIRMED
4