FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-50508
Plaintiff-Appellee,
v. D.C. No.
2:03-cr-00588-AK-1
KENNETH LYLE SPANGLE,
OPINION
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
Alex Kozinski, Chief Circuit Judge,
Presiding by Designation
Argued and Submitted
September 21, 2010—San Francisco, California
Filed November 19, 2010
Before: Richard C. Tallman, Richard R. Clifton, and
Carlos T. Bea, Circuit Judges.
Opinion by Judge Tallman
18617
UNITED STATES v. SPANGLE 18621
COUNSEL
Jonathan D. Libby (argued), Assistant Federal Public
Defender; Kathryn A. Young, Deputy Federal Public
Defender; Sean K. Kennedy, Federal Public Defender, Los
Angeles, California, for defendant-appellant Kenneth Lyle
Spangle.
Daniel B. Levin (argued), Assistant United States Attorney;
Michael R. Wilner, Assistant United States Attorney, Deputy
Chief, Major Frauds Section; Christine C. Ewell, Assistant
United States Attorney, Chief, Criminal Division; Andre
Birotte, Jr., United States Attorney, Los Angeles, California,
for plaintiff-appellee United States of America.
OPINION
TALLMAN, Circuit Judge:
Defendant-Appellant Kenneth Lyle Spangle appeals from
the twenty-four-month term of imprisonment imposed upon
the revocation of his supervised release. Spangle contends
that he was denied his Sixth Amendment right to represent
himself, that the district court judge should have recused him-
self, and that the sentence imposed was procedurally and sub-
stantively unreasonable. Because all of Spangle’s contentions
are without merit, we affirm the judgment and sentence.
I
This appeal has its genesis in Spangle’s 1996 guilty plea to
a charge of bank robbery. In April 1997, Spangle was sen-
18622 UNITED STATES v. SPANGLE
tenced to fifty-seven months imprisonment, followed by three
years of supervised release. Upon his first release from federal
prison on March 23, 2001, Spangle never reported to his pro-
bation officer. A bench warrant was issued, and he was
arrested in early June 2001. The district court conducted three
evidentiary hearings to determine whether to revoke Span-
gle’s supervised release, and Spangle’s probation officer par-
ticipated in all three hearings. The district court eventually did
revoke his supervised release and sentenced him to an addi-
tional twenty-four months in prison.
After Spangle was sentenced, he sent two threatening let-
ters to his former probation officer, and he called the federal
public defender’s office and stated that he wanted to kill a
judge. Two weeks before Spangle was to be released, in May
2003, he sent a third letter to his former probation officer,
directing her to look at a calendar and stating that her time
was “running out.” The probation officer did not directly
receive this letter as she no longer worked at the office where
the letter was sent, but the supervisor for that office read the
letter and immediately contacted the probation officer’s new
supervisor.
Spangle was indicted on two counts of mailing threatening
communications, a violation of 18 U.S.C. § 876(c), for two of
the letters he sent to the probation officer. On February 11,
2004, the Honorable Alex Kozinski, Chief Judge of the
United States Court of Appeals for the Ninth Circuit, sitting
by designation, found Spangle guilty after a bench trial on one
of the counts of mailing a threatening communication. In June
2004, Judge Kozinski sentenced Spangle to seventy-two
months imprisonment with an additional three-year term of
supervised release.
Spangle was again released from federal custody on Janu-
ary 8, 2009. At the time of this release, Spangle was fitted
with a monitoring device to track his whereabouts during his
three-year term of supervised release. Prior to absconding,
UNITED STATES v. SPANGLE 18623
Spangle failed to inform his probation officer1 that he had pur-
chased a car notwithstanding the requirement that he disclose
any purchase over $500. On February 15, 2009, less than six
weeks following his release and while his probation officer
was out of town, Spangle cut the monitoring device off of his
ankle, and he absconded from his approved residence at his
sister’s home in Santa Rosa, California.
Before Spangle violated his supervised release this time, he
made suspicious statements both to his sister and to a teller at
the local branch of his bank. He told his sister that he was
about to do something that she and the probation officer
would not like. He complained to the bank teller about the
fifteen-day waiting period for purchasing a gun imposed by
California law. Spangle also withdrew approximately $2,000
from his bank account a week before removing and discarding
his monitoring device and leaving Santa Rosa.
A warrant was issued for Spangle’s arrest on February 17,
2009, because he had violated the terms of his supervised
release. He was picked up the next day. Although the terms
of his supervised release prohibited Spangle from leaving
Santa Rosa, he was arrested by officers from the Los Angeles
Police Department (“LAPD”) at a Citibank branch in Canoga
Park, over four hundred miles from Santa Rosa. The officers
impounded Spangle’s car, and it was later searched by two
probation officers and an agent from the Federal Bureau of
Investigation.
During the search, law enforcement officers found numer-
ous items of interest. In the front passenger compartment of
Spangle’s car, the officers found several pieces of paper. One
particular sheet had the name of Spangle’s former probation
officer, the one he had previously threatened, and what
appeared to be her address. Other papers contained personal
1
During this period of supervised release, Spangle communicated with
a probation officer who was not the person he had previously threatened.
18624 UNITED STATES v. SPANGLE
information about an assistant United States attorney who had
previously prosecuted Spangle and information about both
state and federal judges. A search of the trunk of Spangle’s
car uncovered similar documents, including personal informa-
tion about Judge Kozinski and his family. Officers also found
numerous magazines and periodicals about firearms and bul-
lets, as well as a directory of California state governmental
offices. However, no weapon was found in Spangle’s vehicle.
When he appeared before Judge Kozinski on February 20,
2009, Spangle admitted violating the terms of his supervised
release by removing the monitoring device and fleeing Santa
Rosa. At a status conference on April 6, 2009—held three
days before a pre-sentencing evidentiary hearing—Spangle
asked to proceed pro se because his appointed attorney alleg-
edly refused to provide certain documents to Spangle. Span-
gle’s attorney explained that he did not provide the requested
documents because they were irrelevant to the evidence that
was to be presented at the pre-sentencing evidentiary hearing.
Judge Kozinski denied Spangle’s request, stating that it was
too close to the date of the evidentiary hearing, but notified
Spangle that he could renew his request to proceed pro se
before sentencing. Judge Kozinski then addressed the prose-
cution’s suggestion that he might want to consider whether to
recuse himself in light of the fact that materials in Spangle’s
possession contained personal information about the judge.
Judge Kozinski noted the fact that such personal information
is now readily available on the Internet, and he stated that he
had no subjective belief that Spangle presented a danger to
him. Judge Kozinski found that Spangle’s “modus operandi”
was to make lists, and that these lists did not, without more,
constitute a basis for recusal. Spangle said nothing at the hear-
ing on this issue.
At the evidentiary hearing held on April 9, 2009, the prose-
cution presented evidence of Spangle’s interaction with his
probation officer, the testimony of Spangle’s sister and the
bank teller regarding Spangle’s statements, and evidence
UNITED STATES v. SPANGLE 18625
about the materials found during the search of Spangle’s auto-
mobile. The court made specific factual findings, including
the fact that Spangle deliberately tracked down his former
probation officer’s address and was on his way to menace her.
Judge Kozinski found that Spangle presented a threat to the
former probation officer and expressed his concerns about
Spangle’s mental competency. The court postponed final sen-
tencing pending a mental evaluation of Spangle under 18
U.S.C. § 4244. That evaluation concluded that Spangle was
competent to understand the proceedings and assist in his
defense.
Spangle’s sentencing hearing was held on September 29,
2009. At the hearing, Spangle’s counsel informed the court
that Spangle wished to represent himself. The court, through
repeated interruptions by Spangle, denied the request as
untimely. It reiterated its finding that Spangle was headed to
southern California to threaten or harass his former probation
officer, and sentenced Spangle to two years imprisonment
with an additional term of supervised release. Judgment was
entered on October 9, 2009, and Spangle filed a timely notice
of appeal.
II
[1] The Sixth Amendment indisputably provides criminal
defendants with the right to self-representation. Faretta v.
California, 422 U.S. 806, 819 (1975). Spangle contends that
the court’s denial of his requests to proceed pro se deprived
him of his Sixth Amendment right. The Sixth Amendment
does not apply to parole revocation proceedings; it also does
not apply to probation revocation proceedings if the defendant
was previously sentenced. See Gagnon v. Scarpelli, 411 U.S.
778, 781 (1973); United States v. Stocks, 104 F.3d 308, 311
(9th Cir. 1997). Because the revocation of supervised release
is indistinguishable from the revocation of parole, we hold
that the Sixth Amendment has no application to supervised
release proceedings. See Morrissey v. Brewer, 408 U.S. 471,
18626 UNITED STATES v. SPANGLE
480 (1972) (“We begin with the proposition that the revoca-
tion of parole is not part of a criminal prosecution and thus the
full panoply of rights due a defendant in such a proceeding
does not apply to parole revocations. . . . Revocation deprives
an individual, not of the absolute liberty to which every citi-
zen is entitled, but only of the conditional liberty properly
dependent on observance of special parole restrictions.”).
[2] Because the Sixth Amendment is inapplicable, Span-
gle’s right to self-representation arises if at all under 28
U.S.C. § 1654. Section 1654 allows a party to “plead and con-
duct” his own case, as permitted by the rules of the court. 28
U.S.C. § 1654. Any alleged violation of a party’s statutory
right to self-representation is reviewed under a harmless error
standard. See Sanchez v. United States, 311 F.2d 327, 332
(9th Cir. 1962) (examining the district court’s order for “prej-
udicial error”).2 We do not decide whether the court erred in
denying Spangle’s requests to represent himself because any
alleged error was harmless.
[3] Initially, Spangle desired to proceed pro se because his
appointed counsel allegedly refused to provide Spangle docu-
ments he had requested. Spangle sought all of the information
about the LAPD search of his car. He thought the condition
of the vehicle both pre- and post-search was material because
the court placed significant weight on the specific location of
the document with the former probation officer’s name and
address. However, the record indicates that the court did not
focus on the location of the document. The underpinnings of
the court’s factual findings were that Spangle possessed the
probation officer’s personal information, was en route to her
2
This comports with our analysis of Sixth Amendment challenges to
denial of a defendant’s right to represent himself at sentencing. In such sit-
uations, “improper denial of a defendant’s motion to proceed pro se at sen-
tencing, rather than at trial, is not a structural error and is thus subject to
harmless error analysis.” United States v. Maness, 566 F.3d 894, 897 (9th
Cir. 2009).
UNITED STATES v. SPANGLE 18627
location at the time he was arrested, and had acted suspi-
ciously in the weeks before he absconded from his sister’s
residence. The denial of Spangle’s request was harmless
because the only rationale underlying his request was his
desire to obtain irrelevant discovery. He had already admitted
to violating the terms of his supervised release when he
became fixated on this issue.
[4] Furthermore, Spangle’s access to these documents did
not impact the supervised release sentencing proceedings
because the court was aware of the fact that officers from the
LAPD had searched the vehicle before the federal probation
officers conducted their search. The court explicitly asked if
the LAPD officers took anything out of the vehicle, and the
probation officer testified that he was the first to remove any-
thing and that it was “most likely” that the document in ques-
tion was in the passenger compartment at the time Spangle
was arrested. Thus, the court explored the issue that spurred
Spangle’s request to represent himself, rendering the denial of
that request harmless.
[5] Likewise, any presumed error arising from the denial
of Spangle’s second request to represent himself was harm-
less. Spangle wanted to represent himself because he believed
his appointed counsel was ineffective and afraid of Judge
Kozinski. The record establishes that at sentencing the court
allowed Spangle ample opportunity to speak and interject on
his own behalf. Spangle expressed his animosity towards any
supervision, and he challenged or offered innocent explana-
tions for all of the factual findings contained in the presen-
tence investigation report. He also argued that any additional
period of incarceration would violate the Eighth Amendment,
and he requested that he be allowed to move to Vancouver,
British Columbia, in lieu of further imprisonment. Spangle
does not now present any information or argument that he was
prohibited from introducing at the sentencing hearing as a
result of the denial of his request to proceed pro se. There was
18628 UNITED STATES v. SPANGLE
no prejudicial error in denying his statutory application to rep-
resent himself.
III
Spangle next challenges the court’s failure to recuse. The
prosecution filed a brief asking the judge to consider whether
he might wish to recuse himself under 28 U.S.C. § 455, and
it made clear it was not formally moving for recusal. Spangle
never made such a request. It is true that Spangle’s failure to
seek recusal below does not prevent him from raising the
issue on appeal. Noli v. Comm’r, 860 F.2d 1521, 1527 (9th
Cir. 1988) (“Failure to move for recusal at the trial level,
however, does not preclude raising on appeal the issue of
recusal under § 455.”). However, Spangle now faces a
“greater burden” to demonstrate that the judge erroneously
failed to recuse. Id.; United States v. Holland, 519 F.3d 909,
911-12 (9th Cir. 2008). We review the court’s decision for
plain error. Holland, 519 F.3d at 911.
In Holland, we outlined the objective and subjective
aspects of § 455. Id. at 914-15. Under the objective standard,
a judge must recuse in any case where “his impartiality might
reasonably be questioned.” 28 U.S.C. § 455(a). This is a fact-
specific inquiry that should be guided by the circumstances of
the specific claim. Holland, 519 F.3d at 913. The subjective
inquiry, on the other hand, requires the judge “to determine
whether he can be truly impartial when trying the case.” Id.
at 915. This is a “highly personal” test in which a judge must
decide his ability to “set aside emotion and thoughtfully
examine his ability to impartially ‘administer justice without
respect to persons.’ ” Id. (quoting 28 U.S.C. § 453).
Spangle contends that Judge Kozinski should have recused
because Spangle possessed personal information about the
judge and his family. He argues that the judge did not con-
sider the objective aspect of the § 455 analysis. Under the
UNITED STATES v. SPANGLE 18629
facts of this case, we hold that the judge did not plainly err
by refusing to recuse.
A
[6] When the alleged basis for recusal is a threat against
the judge, the objective prong warrants recusal if a “reason-
able third-party observer would perceive that there is a signif-
icant risk that the judge will be influenced by the threat and
resolve the case on a basis other than the merits.” Holland,
519 F.3d at 914 (internal quotation marks omitted). The judge
must evaluate the risk that the threat will be carried out and
the extent of harm realized if the threat is fulfilled. Id. Three
factors may guide this analysis: (1) the defendant’s ability to
carry out the threat; (2) the defendant’s demeanor and the
context of the threat; and (3) the perceived purpose of the
threat. Id. at 914-15.
[7] “The final factor is, perhaps, the most important,” id.
at 915, and it is the one that controls the resolution of Span-
gle’s challenge. Although Spangle argues that the court did
not conduct the objective inquiry required by § 455(a), the
record belies his argument. When rejecting the possibility of
recusal, the court found that it was Spangle’s “modus ope-
randi” to make lists, and he further found that any replace-
ment judge would likely also find himself or herself on one
of Spangle’s lists. The court thus considered the perceived
purpose of Spangle’s actions and reasonably found it to be
one of intimidation rather than actual malice. It is imperative
that we not allow defendants to “manipulate the system” by
“threatening every jurist assigned on the ‘wheel’ until the
defendant gets a judge he prefer[s].” Id. Imposing a require-
ment that a judge recuse every time a defendant, like Spangle,
makes an implicit threat against the judge would subvert the
policy underlying § 455(a) and condone gamesmanship by
cunning defendants.
[8] Additionally, the context of Spangle’s threat does not
necessitate the conclusion that there was an objective basis for
18630 UNITED STATES v. SPANGLE
recusal. Here, Spangle did not make an overt threat to the
judge or his family; he simply obtained information about
them. While we do not minimize the gravity of the availabil-
ity of such information, we also recognize, as did Judge Koz-
inski, that modern technology has made such information all
too readily available. Although Spangle obviously obtained
this information, there is no evidence that he had acted on it
or was planning to take action against the judge. The judge
did not plainly err by concluding that there was no objective
basis for his recusal.
B
[9] The subjective test required by § 455(b) is a test for
“actual bias.” Holland, 519 F.3d at 915. The judge found no
subjective reason for recusal because he did not feel threat-
ened by Spangle. We see no basis in the record to hold this
conclusion plainly erroneous.
[10] There is a rational distinction between the criminal
threat made to his former probation officer and any potential
threat inherent in Spangle’s possession of personal informa-
tion about the judge and many others with whom Spangle had
prior contact. Spangle had a history of threatening the proba-
tion officer and had gone to great lengths to convey those
threats explicitly. He had even uncovered the probation offi-
cer’s new address notwithstanding the fact that his initial
interaction with her had ended eight years earlier. Moreover,
he was arrested in the general vicinity of her home—over four
hundred miles away from where he was required to be—
within four days of absconding from supervised release. This
type of affirmative action is distinguishable from the latent
threat posed by the act of uncovering personal information
about a judicial officer. There is no evidence in the record to
controvert the judge’s “highly personal” analysis that he was
not threatened by Spangle’s actions. There was no plain error
in refusing to recuse.
UNITED STATES v. SPANGLE 18631
IV
Finally, Spangle challenges both the procedural correctness
and substantive reasonableness of his sentence.3 He argues
that his sentence is procedurally unreasonable because it is
based on clearly erroneous facts, and that it is substantively
unreasonable because it is greater than what is necessary to
accomplish the goals identified in 18 U.S.C. § 3553(a). The
standard of review for allegations of procedural error in sen-
tencing is abuse of discretion. United States v. Ressam, 593
F.3d 1095, 1122 (9th Cir. 2010). A district court has abused
its discretion if the sentence is based on clearly erroneous
facts. Id. We also review the substantive reasonableness of a
sentence for abuse of discretion. United States v. Autery, 555
F.3d 864, 871 (9th Cir. 2009).
A
Spangle challenges the court’s factual findings regarding
his demeanor during proceedings, his dangerousness to soci-
ety, his mental health, and his threat to his former probation
officer. He now offers innocent explanations for his behavior
such as a hearing impairment and a desire to return to Orange
County because that is where he grew up; he also relies heav-
ily on the results of psychological evaluations completed
while Spangle was incarcerated. However, it is not our duty
to reweigh the evidence presented to the trial court.
[11] In order to reverse a district court’s factual findings as
clearly erroneous, we must determine that the district court’s
factual findings were illogical, implausible, or without sup-
3
A court may revoke a term of supervised release and sentence a defen-
dant to a term of imprisonment if the court finds by a preponderance of
the evidence that the defendant violated a condition of his supervised
release. 18 U.S.C. § 3583(e)(3). When making this determination, the
court must consider the factors set forth in 18 U.S.C. § 3553(a). Id.
§ 3583(e).
18632 UNITED STATES v. SPANGLE
port in the record. United States v. Hinkson, 585 F.3d 1247,
1262 (9th Cir. 2009) (en banc). Spangle’s proffered explana-
tions do not convince us that the court’s finding was clearly
erroneous. While it may have been true that Spangle’s self-
admitted “loud and uncontrollable conduct” resulted from a
hearing impairment, it is also plausible that such behavior
arose from his contempt of authority. Likewise, while Spangle
may have been drawn to Orange County due to homesickness,
it is equally likely that he drove there in an attempt to further
harass his former probation officer. It is the trial court’s duty
to determine the credibility of such proffered explanations,
and drawing the inference from these facts that Spangle was
pursuing a vendetta against his former probation officer is
plausible from the evidence presented during the revocation
proceedings.
[12] The court did not abuse its discretion on the basis of
procedural error when it sentenced Spangle to twenty-four
months imprisonment because its factual findings were not
clearly erroneous.
B
[13] Although not clear from the record, we assume that
the court found Spangle guilty of a Grade C violation of his
supervised release. Given Spangle’s criminal history category
of V, as calculated in his prior presentence report, the range
of imprisonment recommended by the Sentencing Guidelines
was seven to thirteen months. U.S. Sentencing Guidelines
Manual § 7B1.4(a) (2008). Thus, the twenty-four month sen-
tence imposed by the court fell outside of the applicable pol-
icy statements issued by the Sentencing Commission.
Congress gave the Sentencing Commission authority to
issue either guidelines or policy statements “regarding the
appropriate use of” the provisions governing the revocation of
supervised release under 18 U.S.C. § 3583(e). 28 U.S.C.
§ 994(a)(3). The Sentencing Commission chose to issue pol-
UNITED STATES v. SPANGLE 18633
icy statements rather than guidelines, and these statements are
contained in Chapter 7 of the Sentencing Guidelines. U.S.
Sentencing Guidelines Manual ch. 7, pt. A, introductory cmt.
(2008). Like the Sentencing Guidelines, these policy state-
ments are only recommendations from which district courts
have discretion to depart. See Kimbrough v. United States,
552 U.S. 85, 109 (2007). Courts are required, however, to
consider the § 3553(a) factors when modifying or revoking a
defendant’s supervised release. 18 U.S.C. § 3583(e).
We cannot presume that a sentence is substantively unrea-
sonable only because it falls outside the range recommended
by the Sentencing Commission. United States v. Edwards,
595 F.3d 1004, 1015 (9th Cir. 2010). We must instead con-
sider the totality of the circumstances and “give due deference
to the district court’s decision that the § 3553(a) factors, on a
whole, justify the extent of the variance.” Gall v. United
States, 552 U.S. 38, 51 (2007). Reversal is appropriate only
if the district court’s sentence is “illogical, implausible, or
without support in inferences that may be drawn from the
facts in the record.” See United States v. Treadwell, 593 F.3d
990, 999 (9th Cir. 2010) (quoting Hinkson, 585 F.3d at 1262).
[14] The court did not abuse its discretion when it imposed
a sentence above that recommended by the Sentencing Com-
mission for violating supervised release. The court was cogni-
zant of its statutory duty to apply the § 3553(a) factors, and
it thoroughly explained its factual findings related to Span-
gle’s future dangerousness. It reasoned that because Spangle
wasted little time in withdrawing cash from his bank account,
purchasing a vehicle, attempting to purchase a gun, and
uncovering information about his former probation officer’s
whereabouts after absconding from his supervised release, he
posed a serious threat to his previous victim. Notwithstanding
Spangle’s arguments to the contrary, there is no evidence in
the record that the court gave this consideration undue weight
or failed to consider other relevant statutory factors. Conse-
18634 UNITED STATES v. SPANGLE
quently, the court did not impose a substantively unreasonable
sentence.
AFFIRMED.