UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-5118
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
RUSSELL EARL MILLER,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad, Jr.,
District Judge. (CR-04-256)
Argued: February 1, 2007 Decided: March 8, 2007
Before WIDENER, TRAXLER, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Edward Theodore Hinson, Jr., JAMES, MCELROY & DIEHL, P.A.,
Charlotte, North Carolina, for Appellant. Matthew Theodore
Martens, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North
Carolina, for Appellee. ON BRIEF: Gretchen C. F. Shappert, United
States Attorney, Kimlani Murray, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
This is an appeal from a guilty plea and resulting 135-month
sentence for two child pornography-related offenses. Russell Earl
Miller (“Appellant”) argues that District Court Judge Robert Conrad
erred both by not recusing himself from the sentencing phase of
this matter and by imposing a sentencing enhancement based on a
contested fact. For the reasons that follow, we affirm.
I.
In a case that eventually came before Judge Conrad for
sentencing, Appellant pleaded guilty to a bill of information
charging him with possession and distribution of child pornography
in violation of 18 U.S.C. §§ 2252(a)(2) and 2252A(a)(5)(B). The
charges resulted from an FBI investigation that discovered numerous
images of child pornography in Appellant’s possession.
Because Appellant contends that Judge Conrad’s tenure as a
United States Attorney, a post he held in the Western District of
North Carolina from 2001 to 2004, calls his impartiality into
question, we recount the relevant dates of this proceeding. The
FBI began investigating Appellant on May 10, 2004 and the U.S.
Attorney’s office opened a corresponding file on June 28, 2004.
Judge Conrad left the U.S. Attorney’s office on June 1, 2004 to
enter private practice. Appellant alleges no facts to suggest that
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Judge Conrad was aware of or had any involvement with this case
while serving as United States Attorney.
On September 23, 2004, Assistant United States Attorney
(“AUSA”) Brian Cromwell signed the two-count information against
Appellant. The next day, Appellant pleaded guilty and signed a
plea agreement. In the agreement, Appellant retained his right to
appeal errors at sentencing and stipulated that his offenses
involved at least 300 but fewer than 600 images of child
pornography for purposes of U.S.S.G. § 2G2.2 (2003) (consolidated
with U.S.S.G. § 2G2.2 and deleted 2005).
Several months later, Cromwell left the U.S. Attorney’s Office
to join the same private law firm where Judge Conrad was then
practicing. Appellant does not contend that Cromwell ever
discussed this case with Judge Conrad after leaving his position as
AUSA. Judge Conrad received his commission as a federal district
court judge on June 2, 2005 and, sometime thereafter, was assigned
to hear Appellant’s case for sentencing. Appellant filed a motion,
which Judge Conrad denied, seeking his recusal.
In preparation for sentencing, the Probation Office prepared
a pre-sentencing report (“PSR”) that indicated Appellant’s offense
involved either 4,270 or 4,720 images of child pornography (the PSR
contained both numbers in different places).1 Appellant objected
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This inconsistency is, at most, a scrivener’s error that is
of no substantive import because either figure satisfies the “600
or more images” threshold for application of the maximum five-level
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to that aspect of the PSR. At Appellant’s sentencing hearing,
Judge Conrad asked the parties whether he should use the number of
images identified in the PSR to calculate Appellant’s sentence,
rather than the number of images stipulated to by the parties.
Appellant objected to use of the number of images in the PSR. The
use of 4,720 images would have resulted in an offense level of 32
and a guidelines range of 121 to 151 months’ imprisonment.2 The
use of 300 to 600 images would have resulted in an offense level of
31 and a guidelines range of 108 to 135 months.
Rather than making a specific finding on the number of images,
Judge Conrad sentenced Appellant to 135 months, stating that he
would have done so under a total offense level of either 31 or 32
(i.e., regardless of whether he used the 4,720 figure or the 300 to
600 range) because it was a reasonable sentence. J.A. 102. This
appeal followed.
II.
Appellant challenges his sentence based on Judge Conrad’s
denial of his motion to recuse and the number of images Judge
Conrad used for sentencing purposes. We consider each contention
in turn.
enhancement. U.S.S.G. § 2G2.4(b)(5)(D) (2003).
2
Appellant was assigned a criminal history category of I.
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A.
1.
Appellant’s recusal argument is predicated on two grounds.
Appellant first argues that Judge Conrad should have recused
himself under 28 U.S.C. § 455(a) because “his impartiality might
reasonably be questioned” based on his former position as United
States Attorney and later private practice with an AUSA who had
worked on Appellant’s case. This argument fails.
The need to recuse is measured by an objective standard that
“asks whether the judge’s impartiality might be questioned by a
reasonable, well-informed observer who assesses all the facts and
circumstances.” United States v. DeTemple, 162 F.3d 279, 286 (4th
Cir. 1998) (internal quotation omitted). A judge need not “recuse
himself because of unsupported, irrational, or highly tenuous
speculation.” Id. at 287 (internal quotation omitted). “[T]o
constitute grounds for disqualification, the probability that a
judge will decide a case on a basis other than the merits must be
more than trivial.” Id. (internal quotation omitted).
Appellant’s argument here relies on unsupported speculation
that Judge Conrad’s former position as United States Attorney and
his private association with an AUSA involved in Appellant’s
prosecution calls Judge Conrad’s impartiality into question.
Absent any allegation to suggest that Judge Conrad was even aware
of this case prior to taking the bench, however, we cannot conclude
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that a reasonable observer would question his impartiality.
Appellant acknowledges that there is no indication that Judge
Conrad was involved in the prosecution, knew of it, received any
information about it, or formed an opinion regarding it. Under
such circumstances, the mere facts of Judge Conrad’s government
service and private association with an AUSA who worked on this
matter are insufficient to justify his recusal.
2.
Appellant next argues that Judge Conrad should have recused
himself under § 455(b)(3), which requires recusal
[w]here [a judge] has served in governmental employment
and in such capacity participated as counsel, adviser or
material witness concerning the proceeding or expressed
an opinion concerning the merits of the particular case
in controversy[.]
28 U.S.C. § 455(b)(3). Appellant contends that this provision
applies because Judge Conrad was a United States Attorney while the
FBI investigated Appellant. This argument also lacks merit.
Appellant presents no support for his expansive view that a
United States Attorney “participate[s] as counsel” to the FBI with
respect to every investigation it conducts, nor can we find any.
The U.S. Attorney’s Office and the FBI are organizationally
distinct, and we can perceive no basis in the relationship between
the two to warrant viewing the United States Attorney as “counsel,
adviser or material witness” in an investigation prior to the
arrival of the matter in his or her office.
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The two cases on which Appellant relies do not compel a
different conclusion. In both United States v. Arnpriester, 37
F.3d 466, 467 (9th Cir. 1994) and United States v. Amerine, 411
F.2d 1130, 1133-34 (6th Cir. 1969), the district judge should have
recused himself because he had been the United States Attorney
while the case was under either investigation or active prosecution
by his office. The present case is easily distinguishable from
both; this matter was not referred to the U.S. Attorney’s office
until three weeks after Judge Conrad left for private practice.
Accordingly, we find no error in Judge Conrad’s refusal to
recuse himself under § 455(b)(3).
B.
Miller next argues that, because the parties stipulated that
only 300 to 600 images should be considered at sentencing, Judge
Conrad erred by applying a five-level enhancement based on a
finding that the case involved 4,720 images of child pornography.
See U.S.S.G. § 2G2.4(b)(5)(D) (2003) (imposing a five-level
enhancement for “600 or more images”). We note initially that
Appellant agreed that the district court was not bound by any of
the stipulations in the revised plea agreement. J.A. 159. Had the
district court applied the number of images agreed to by the
parties, Appellant only would have received a four-level
enhancement. See U.S.S.G. § 2G2.4(b)(5)(C) (2003) (imposing a
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four-level enhancement for “at least 300 images, but fewer than
600"). However, in light of the district court’s statement that it
would enter identical sentences regardless of whether it applied
the four- or five-level enhancement, any error in Judge Conrad’s
use of the higher number of images is harmless.
Errors in sentencing are subject to harmless error review, and
will be vacated only if the error affects the defendant’s
substantial rights. United States v. Rodriguez, 433 F.3d 411, 416
(4th Cir. 2006). The burden is on the government to establish that
an error is harmless. Id. Although not directly applicable, this
court has recognized that the use of alternative sentences renders
harmless both constitutional and statutory error under United
States v. Booker, 543 U.S. 220 (2005) where one sentence is
infected with error and the other is not. See United States v.
Shatley, 448 F.3d 264, 267 n.* (4th Cir. 2006) (collecting cases
dealing with alternative sentences in the Booker context). Given
that alternative sentences are sufficient to render Booker error
harmless and that Appellant does not otherwise challenge his
sentence, we conclude that any error in the district court’s
application of the § 2G2.4(b)(5)(D) enhancement is harmless based
on its indication that it would, in its discretion, impose an
identical sentence if it applied the § 2G2.4(b)(5)(C) enhancement.
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III.
Based on the foregoing, Appellant Russell Earl Miller’s
sentence is
AFFIRMED.
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