United States v. Ricardo Avilez-Reyes

DeMOSS, Circuit Judge:

Ricardo Avilez-Reyes (“Avilez-Reyes”) appeals his sentence of 180 months imprisonment, arguing that the district judge committed reversible error by failing to recuse *259himself from the ease before sentencing was to occur. For the reasons that follow we vacate Avilez-Reyes’ sentence and remand for resentencing before a different district judge.

I.

On July 18,1997, Avilez-Reyes pleaded guilty before United States District Judge John McBryde to the crime of possession with intent to distribute methamphetamine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A) and 18 U.S.C. § 2. On October 9, 1997, roughly two weeks before sentencing was scheduled to occur, Avilez-Reyes moved Judge McBryde to recuse himself from the case. He brought the motion under 28 U.S.C. § 455(a) based on the fact that his attorney, Public Defender Paul D. Stickney (“Stickney”), had testified against Judge McBryde only one month earlier in judicial disciplinary proceedings before a special investigatory committee of the Fifth Circuit Judicial Council. Judge McBryde subsequently denied the motion and sentenced Avilez-Reyes to 180 months imprisonment.1 Avilez-Reyes, who appeals only his sentence in this appeal, asks this Court to remand the case for resentencing before a different district judge based on Judge McBryde’s refusal to recuse. We accede to his request.

II.

Avilez-Reyes contends that Judge McBryde abused his discretion and committed reversible error by refusing to grant his motion for a recusal under 28 U.S.C. § 455(a). He bases that claim on the contention that his case became infected with the appearance of impropriety once Stickney, his attorney, testified against Judge McBryde in the Fifth Circuit Judicial Council proceedings. We agree with that contention.

Section 455(a) requires a judge to stand recused “in any proceeding in which his impartiality might reasonably be questioned.” 28 U.S.C. § 455(a). As the goal of § 455(a) “is to exact the appearance of impartiality,” recusal may be mandated even though no actual partiality exists. Hall v. Small Business Admin., 695 F.2d 175, 178 (5th Cir.1983). The standard by which we judge recusal is an objective one. If a reasonable man, were he to know all the circumstances, would harbor doubts about the judge’s impartiality,” then recusal is warranted. Health Services Acquisition Corp. v. Liljeberg, 796 F.2d 796, 800 (5th Cir.1986), aff'd, 486 U.S. 847, 108 S.Ct. 2194, 100 L.Ed.2d 855 (1988).

On the facts of this case we hold that Judge McBryde abused his discretion and reversibly erred by failing to recuse himself from Avilez-Reyes’ case. We conclude that a reasonable person, advised of all the circumstance of this case, would harbor doubts about Judge McBryde’s impartiality. We find additional support for our decision in the unfortunate fact that on February 9, 1998, the Judicial Council of the Fifth Circuit issued an order executing a Judicial Council Order of December 31, 1997, ordering Judge McBryde not to participate in cases involving attorneys who have testified against him for a three year period. That order, which expressly lists Stickney as one of the testifying attorneys, is a clear indication that our colleagues on the Judicial Council felt there would be an appearance of impropriety in Judge McBryde continuing to preside over attorneys who had so recently testified against him.

Also guiding our decision is this Court’s holding in United States v. Anderson, 160 F.3d 231 (1998), a case decided at the same time as the present appeal.

As in Anderson, we again find that Judge McBryde committed reversible error by failing to recuse himself from Avilez-Reyes’ case. We also find Avilez-Reyes’ motion timely and well-taken in all other relevant respects. Accordingly, we vacate Avilez-Reyes’ sentence and remand this case for resentencing before a different judge in that district.

. The applicable guidelines range for Avilez-Reyes under the United States Sentencing Guidelines was 168 to 210 months.