NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 15-1417
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UNITED STATES OF AMERICA
v.
DESHAWN KING, a/k/a Wop, a/k/a Mike
DeShawn King,
Appellant
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On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 5-13-cr-00417-001)
District Judge: Honorable James Knoll Gardner
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Submitted Under Third Circuit L.A.R. 34.1(a)
March 18, 2016
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Before: CHAGARES, RESTREPO, and VAN ANTWERPEN,* Circuit Judges.
(Filed: September 28, 2016)
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OPINION**
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*
The Honorable Franklin Van Antwerpen participated in the decision in this case,
but died before the opinion was filed. This opinion is filed by a quorum of the court.
See 28 U.S.C. § 46; Third Circuit I.O.P. 12.1(b).
**
This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.
RESTREPO, Circuit Judge.
DeShawn King (“Appellant” or “King”) entered an open guilty plea to one count
of conspiracy to commit sex trafficking by force, fraud or coercion, in violation of 18
U.S.C. § 1594, and four related substantive counts, under 18 U.S.C. §1591, each
involving different victims. Ultimately, King was sentenced to 293 months in prison, a
$1,000 fine, and 15 years of supervised release, which included several special
conditions. King now appeals, raising two separate issues, neither of which was
preserved. First, King argues that the District Court erred by failing to properly advise
him under the recusal statute, 28 U.S.C. §455(a) & (e), before accepting his waiver of the
District Court’s involvement in a potentially disqualifying event. Second, King argues
that the District Court erred by imposing two special conditions of supervised release
regarding minors that are not reasonably related to Mr. King’s history and are more
restrictive than necessary. For the reasons that follow, we will vacate the portion of the
judgment that imposes the special conditions of supervised release restricting King’s
interaction with minors and remand the case to the District Court to either: (1) provide an
explanation and justification for those special conditions and reimpose them, or (2) enter
an amended judgment omitting those special conditions of supervised release. We will
affirm the judgment of the District Court in all other respects.
I
By his own admission, King’s crimes were “abhorrent.” Appellant’s Br. 3. King
and his co-defendant, Daniel Blount, “were involved in a conspiracy to distribute heroin,
which also involved a prostitution business in and around Allentown, Pennsylvania.”
2
Appellant’s Br. 4. King and Blount “convinced heroin addicts who purchased drugs from
them to work for them in exchange for heroin, money, and housing.” Appellant’s Br. 4.
King and Blount “collected the money earned by the women,” and “manipulated the
women’s access to heroin.” Appellant’s Br. 4. To force their continued participation in
this repugnant enterprise, King and Blount would threaten and assault the four women
under their control. Simply put, King and Blount were violent and abusive pimps and
drug dealers.
King and Blount were indicted on September 5, 2013. Count One charged King
and Blount with conspiracy to commit sex trafficking by force, fraud, or coercion, under
18 U.S.C. § 1594(c); Counts Two and Three charged King and Blount with sex
trafficking by force, fraud or coercion, under 18 U.S.C. § 1591(a); and Counts Four and
Five charged King and Blount with attempted sex trafficking by force, fraud or coercion,
under 18 U.S.C. §§ 1591 and 1594(a). App. 26-37. King entered an open guilty plea on
January 10, 2014. In doing so, King understood that these crimes carried a mandatory
minimum term of 15 years in prison, and that the maximum term was life in prison.
The Honorable James Knoll Gardner conducted King’s sentencing hearing over
the course of two days, January 15, 2015, and February 6, 2015. Approximately halfway
through the first day of the sentencing hearing, Judge Gardner summoned counsel for
King and the Government to sidebar. At sidebar, Judge Gardner informed counsel that
approximately a year earlier he had attended the last five minutes of an Inn of Court
meeting, during which a panel of members gave a presentation based on the facts of
King’s case. Judge Gardner explained that he had arrived late to the meeting, was
3
distracted by other events while he was there, and did not pay attention to the
presentation. 1 After hearing this, the Government lodged no objection and King’s
attorney requested two minutes to speak with his client. Thereafter, King spoke privately
with his attorney for approximately one minute. King’s attorney then returned to sidebar
and informed Judge Gardner that King “has no problem whatsoever with Your Honor
continuing with this hearing.” App. 182. The sidebar then concluded and Judge Gardner
conducted an on-the-record colloquy with King regarding this Inn of Court meeting.
During that colloquy King acknowledged that he: (1) had time to speak with his attorney
about Judge Gardner’s attendance at this meeting; (2) had time to ask his attorney any
questions he had and that his attorney answered those questions to his satisfaction; (3)
understood his attorney’s answers to those questions; (4) had enough time to speak with
his attorney about this issue; and (5) had no problem with Judge Gardner’s continued
involvement in his sentencing. App. 182-84. Both attorneys declined the District Court’s
invitation to add anything to the colloquy, and neither objected. After hearing from
witnesses and counsel for the parties, the District Court adjourned the sentencing
proceedings before imposing a sentence.
The second portion of King’s sentencing hearing took place on February 6, 2015.
In the three-week interval between the first and second days of his sentencing hearing,
King did not move for the recusal of Judge Gardner or otherwise object to Judge
1
Judge Gardner explained that he was so distracted that he did not even realize the
presentation was based on the facts of King’s case – he only discovered this fact the day
after the presentation when one of his law clerks who attended the Inn of Court meeting
explained the connection.
4
Gardner’s continued involvement in the sentencing. In addition, King did not object to
Judge Gardner’s involvement on February 6, 2015, either before or after King’s sentence
was imposed. Ultimately, the District Court ordered that King be imprisoned for a term
of 293 months on each of Counts One through Five, all running concurrently. King’s
sentence also included a $1,000 fine, and 15 years of supervised release. King’s
supervised release carried numerous special conditions. Among other things, those
conditions required King to: (1) “report to the United States Probation Office any regular
contact with children of either sex under the age of 18;” and (2) “not obtain employment
or perform volunteer work which includes regular contact with children under the age of
18.” App. 217. This timely appeal followed.
II
The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction
under 28 U.S.C. § 1291. On appeal, King raises two issues: (1) whether the District
Court sufficiently advised King of his rights under the recusal statute, 28 U.S.C. §455(a)
& (e), before accepting King’s waiver of the District Court’s involvement in a potentially
disqualifying event; and (2) whether the District Court erred in imposing two conditions
of supervised release that restricted King’s interactions with minors. 2 We address each
issue in turn.
2
Neither of King’s claims were preserved, so our review is for plain error. United
States v. Dahl, --- F.3d ----, 2016 WL 4394538, at *2 (3d Cir. Aug. 18, 2016). Plain error
requires a finding of “(1) an error; (2) that is plain; (3) that affects substantial rights; and
(4) which seriously affects the fairness, integrity, or public reputation of judicial
proceedings.” United States v. Tai, 750 F.3d 309, 313-14 (3d Cir. 2014) (citation
omitted).
5
A
The federal recusal statute, 28 U.S.C. § 455, provides, in relevant part, that:
(a) Any justice, judge, or magistrate judge of the United States shall
disqualify himself in any proceeding in which his impartiality might
reasonably be questioned.
....
(e) . . . Where the ground for disqualification arises only under
subsection (a), waiver may be accepted provided it is preceded by a
full disclosure on the record of the basis for disqualification.
“The test for recusal under § 455(a) is whether a reasonable person, with
knowledge of all the facts, would conclude that the judge’s impartiality might reasonably
be questioned.” In re Kennsington Int’l Ltd., 368 F.3d 289, 301 (3d Cir. 2004). Under
subsection (a), questions of impartiality must be viewed on “an objective basis, so that
what matters is not the reality of bias or prejudice but its appearance.” Liteky v. United
States, 510 U.S. 540, 548 (1994). King argues that “[t]he district court correctly
identified that the discussion about Mr. King’s case at the Inn of Court meeting he and
his law clerks attended created a reasonable basis to question to court’s impartiality.”
Appellant’s Br. 11. We disagree.
Judge Gardner’s limited attendance at the Inn of Court meeting was far too brief
and his involvement was far too tangential to create a situation in which Judge Gardner’s
“impartiality might reasonably be questioned.” 28 U.S.C. § 455(a). Accordingly, while
it was prudent judicial practice for Judge Gardner to advise all counsel and King of this
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situation prior to imposing a sentence,3 the alleged “ground for disqualification” here did
not necessitate a waiver from King under 28 U.S.C. § 455(e). 4
Our precedential opinion in United States v. Ciavarella, 716 F.3d 705 (3d Cir.
2013), informs our resolution of this issue.5 In Ciavarella, the defendant/appellant
affirmatively sought the recusal of the district court judge because, among other things,
the judge received nearly 200 letters from the public regarding the case and responded to
seven of those letters. Id. at 721. Despite the fact that some of those seven responses
expressed the judge’s personal opinions about the defendant and the case before him, we
found that section 455(a) did not require recusal. Id. at 723. By contrast, Judge
Gardner’s extra-judicial involvement with King’s case was much less significant – he
attended the last five minutes of a presentation that was based on King’s case. In
addition, the record reflects that Judge Gardner wasn’t paying attention during his brief
attendance – he only learned about the presentation topic on the following day, after his
3
We disagree with King’s argument that the District Court, in raising this issue,
“implicitly acknowledged” that the Inn of Court meeting triggered 28 U.S.C. § 455(a).
Appellant’s Br. 11. Indeed, the record reflects that it is Judge Gardner’s practice
“whenever [he] ha[s] any connection with a case, no matter how slight, to advise counsel
of that on the record.” App. 179-80 (emphasis added).
4
We note that: (1) Judge Gardner informed all counsel of the circumstances at
sidebar; (2) King briefly and privately spoke with his counsel about the circumstances;
and (3) Judge Gardner conducted and on-the-record colloquy with King about the
circumstances, after which King agreed to have Judge Gardner continue with the
sentencing hearing.
5
In considering this appeal we are mindful of the crucial role that section 455
plays in our system of justice, as it “addresses not only fairness to the litigants but also
the public’s confidence in the judiciary.” In re Sch. Asbestos Litig., 977 F.2d 764, 776
(3d Cir. 1992). Nevertheless, we are confident that neither purpose is offended by our
decision today. The circumstances presented by this appeal are insufficient to negatively
implicate either judicial fairness to King or the public’s confidence in the judiciary.
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law clerk informed him. Furthermore, unlike the judge in Ciavarella, at no time did
Judge Gardner express his personal opinions about King or King’s case. It is clear that
Judge Gardner’s interaction was more fleeting and less consequential than the interaction
of the judge in Ciavarella, whose recusal we held was not required under section 455(a).
In sum, Judge Gardner’s impartiality could not reasonably be questioned under
these circumstances, and thus did not require recusal under section 455(a) or a waiver
under section 455(e).
B
King argues that it was plain error for the District Court to impose two special
conditions of supervised release that impaired King’s interactions with minors. The
Government agrees. As do we.
“Though district courts have broad discretion in fashioning special conditions of
supervised release, this discretion is not unfettered.” United States v. Heckman, 592 F.3d
400, 405 (3d Cir. 2010). A district court may impose conditions of supervised release if
they are required by statute, or if they are “reasonably related” to the nature and
circumstances of the offense, the history and characteristics of the defendant, the
achievement of adequate deterrence, the protection of the public, and the defendant’s
rehabilitative needs. See 18 U.S.C. § 3583(d)(1); United States v. Pruden, 398 F.3d 241,
248 (3d Cir. 2005). The conditions must involve no “greater deprivation of liberty than is
reasonably necessary” to promote these enumerated purposes. 18 U.S.C. § 3583(d)(2);
see Pruden, 398 F.3d at 248. A “reasonably related” condition must relate in a “tangible
8
way” to “the crime or something in the defendant’s history.” Pruden, 398 F.3d at 249;
Heckman, 592 F.3d at 405.
“[A] condition with no basis in the record, or with only the most tenuous basis,
will inevitably violate §3583(d)(2)’s command that such conditions ‘involve[] no greater
deprivation of liberty than is reasonably necessary.’” Pruden, 398 F.3d at 249.
Accordingly, a district court must provide an on-the-record explanation and justification
for the sentence it imposes, including special conditions of supervised release. See
United States v. Miller, 594 F.3d 172, 184 (3d Cir. 2010) (“We have consistently required
that district courts explain and justify conditions of supervised release.”); see also United
States v. Tomko, 562 F.3d 558, 567 (3d Cir. 2009) (en banc) (noting that “District courts
must provide their explanations and justifications while going through three steps at
sentencing,” because those explanations and justifications are necessary to facilitate
meaningful appellate review).
The Government concedes that “the conditions that restricted King’s interaction
with minors are not reasonably related to the nature and circumstances of King’s
offense.” Appellee’s Br. 27. In addition, the record is devoid of any explanation or
justification for the imposition of the special conditions related to minors. We agree with
the parties that these conditions must be vacated.
King asks us to remand this case for resentencing. He argues that a full
resentencing “avoids any speculation over the reason for the district court’s error.”
Appellant’s Reply Br. 6. On the other hand, the Government believes that the
appropriate remedy is to “remand the case for the limited purpose of vacating the special
9
conditions relating to minors, and direct the district court to enter an amended judgment
reflecting this change while leaving all other aspects of the judgment intact.” Appellee’s
Br. 28. Here, we do not believe that a full resentencing is necessary. Accordingly, we
will vacate the portion of the judgment that imposes the special conditions of supervised
release relating to minors and remand the case to the District Court to either: (1) provide
an explanation and justification for those special conditions and reimpose them,6 or (2)
enter an amended judgment omitting those special conditions of supervised release.
III
For the foregoing reasons, we will vacate the portion of the judgment that imposes
the special conditions of supervised release relating to minors and remand the case to the
District Court to either: (1) provide an explanation and justification for those special
conditions and reimpose them, or (2) enter an amended judgment omitting those special
conditions of supervised release. We will affirm the judgment of the District Court in all
other respects.
6
If the District Court elects to reimpose these two special conditions of supervised
release on remand, “the Court must provide a sufficiently detailed explanation of its
reasoning to permit meaningful appellate review.” Miller, 594 F.3d at 188.
10