United States v. Franco-Guillen , 196 F. App'x 716 ( 2006 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
October 11, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff-Appellee,
No. 06-3122
v. (District of K ansas)
(D.C. No. 05-CR-10193-M LB)
FILIPE FR AN CO -G U ILLEN ,
Defendant-Appellant.
OR D ER AND JUDGM ENT *
Before M U RPH Y, M cKA Y, and GORSUCH, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
Following a jury trial, Felipe Franco-Guillen was convicted of a single
count of illegal reentry after deportation following conviction for an aggravated
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
felony, in violation of 18 U.S.C. § 1326(a), (b)(2). Franco-Guillen appeals his
conviction and sentence, contending certain comments connecting his ethnicity
and a propensity for lying made by the district court judge created a sufficient
appearance of bias that the judge should have sua sponte recused himself pursuant
to 28 U.S.C. § 455(a).
Franco-Guillen and the government originally entered into a plea
agreement. During the plea colloquy, Franco-Guillen acknowledged inter alia
that no promises had been made as to the sentence he would ultimately receive
and that he w as facing a twenty-year maximum penalty. The district court
accepted the guilty plea. At the sentencing hearing, the district court asked
Franco-Guillen if he w as satisfied with the contents of the presentence report
(“PSR”). Franco-Guillen expressed, through an interpreter, either surprise,
frustration, and/or dissatisfaction with the sentencing range set out in the PSR; he
further stated his attorney had indicated he would receive a sentence of between
twelve and fifteen months. In response, the district court abruptly, and without
any examination of the reasons for Franco-Guillen’s discontent, set aside the
guilty plea and ordered the case to trial. The colloquy at sentencing indicates as
follow s:
THE COURT: Is there anything in the [PSR] that you want to
change or correct?
INTERPRETER W ORTHINGON: I would just like the
opportunity to speak before I’m sentenced.
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THE COURT: But you’re satisfied with the contents of the
[PSR]?
INTERPRETER W ORTHINGON: Not very well.
THE COURT: W hat’s there in this [PSR] that you are not
satisfied with?
INTERPRETER WORTHINGO N: Because the other time
before I came to court, I reached an agreement with my attorney that
we were with an agreement between 12 and 15 months. The contract,
when I came here, we signed that 12 to 15 month agreement.
THE COURT: W hat? Y ou didn’t sign any agreement that
said— with [defense counsel] that said that you were gonna serve 12
to 15 months. W here is a copy of that?
INTERPRETER W ORTHINGON: No, we had an agreement.
THE COURT: Oh yeah. Listen, I’m setting this aside. This is
going to trial. I w ill not put up w ith this from these Hispanics or
anybody else, any other defendants. You didn’t have any kind of
agreement like that with [counsel]. [Counsel] probably may have
given you some idea of what he thought your sentence was; but when
I took your guilty plea, you told me under oath that you understood
that whatever he told you was merely his advice and was not a
promise. Now, I’m not putting up with this. I’ve got another case
involving a Hispanic defendant w ho cam e in here and told me
that he understood w hat w as going on and that everything w as
fine and now I’ve got a 2255 from him saying he can’t speak
English. And he is lying because he told me he could. So
this— the plea agreement is set aside. You’re going to trial my
friend. W hen can you be ready.
[PROSECUTOR]: Your Honor—
THE COURT: And let me tell you this, sir. You’ve got a long
prison record and you’ve got more aliases than I’ve seen anybody
have except one individual down in Las Cruces, New M exico, and
you are facing 20 years if you’re convicted by a jury. W hen can this
case be ready for trial?
[PROSECUTOR]: Just within a matter of ten days or less,
Your Honor.
THE COURT: Set the case. W e’ll notify you when it’s ready.
Nobody can come in here and lie to me and get aw ay with it.
Thereafter, the district court summarily denied Franco-Guillen’s additional
requests to waive a jury trial and to have the matter tried to the district court.
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After the jury convicted Franco-Guillen of illegal reentry, the district court denied
Franco-Guillen’s request for a reduction in his offense level for acceptance of
responsibility and sentenced Franco-G uillen to a term of forty-six months, a
sentence in the middle of the advisory sentencing range.
On appeal, Franco-Guillen asserts the district court’s references to his
ethnicity, especially where those comments seem to link Franco-Guillen’s
ethnicity with a propensity to lie, created an appearance of bias sufficient to
trigger a sua sponte duty on the part of the district court to recuse pursuant to 28
U.S.C. § 455(a). In an admirable and appreciated expression of candor, the
United States agrees that, although the record is devoid of any indication of actual
bias, the district court’s comments created a sufficient appearance of bias so that
Franco-Guillen’s conviction should be vacated and the matter remanded for
further proceedings before a different district court judge. 1
“Any justice, judge, or magistrate judge of the United States shall
disqualify himself in any proceeding in which his impartiality might reasonably
be questioned.” 28 U.S.C. § 455(a). By its terms, § 455(a)’s recusal requirement
1
The Supreme Court has recognized that “the United States Attorney is the
representative not of an ordinary party to a controversy, but of a sovereign whose
obligation to govern impartially is as compelling as its obligation to govern at all;
and whose interest, therefore in a criminal prosecution is not that it shall win a
case, but that justice shall be done.” Strickler v. Green, 527 U.S. 263, 281
(1999). W e laud the government attorneys in this case for living up to that high
standard.
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arises sua sponte when the judge’s impartiality might be reasonably questioned.
United States v. Pearson, 203 F.3d 1243, 1276 (10th Cir. 2000). “The trial judge
must recuse himself when there is the appearance of bias, regardless of whether
there is actual bias.” Bryce v. Episcopal Church, 289 F.3d 648, 659 (10th Cir.
2002). “The test is whether a reasonable person, know ing all the relevant facts,
would harbor doubts about the judge’s impartiality.” Id. (quotations omitted).
This court will “consider the totality of the circumstances when reviewing such
claims, disregarding the judge’s actual state of mind, purity of heart,
incorruptibility, [and] lack of partiality.” United States v. Lang, 364 F.3d 1210,
1217 (10th Cir. 2004) (quotation omitted).
The judge’s statements on the record would cause a reasonable person to
harbor doubts about his impartiality, without regard to whether the judge actually
harbored bias against Franco-G uillen on account of his Hispanic heritage. See
Liteky v. United States, 510 U.S. 540, 555 (1994) (giving as an example of an
appearance of bias requiring recusal when a trial judge in a W orld W ar I
espionage case allegedly said, “[o]ne must have a very judicial mind, indeed, not
[to be] prejudiced against German-Americans” because their “hearts are reeking
with disloyalty”). W hen at the initial sentencing hearing the district judge
perceived that Franco-Guillen was lying about his understanding of the plea
agreement, the judge stated, “I will not put up with this from these Hispanics or
anybody else, any other defendants.” The judge compounded the impropriety of
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his reference to defendant’s ethnicity when he then stated: “I’ve got another case
involving a Hispanic defendant who came in here and told me that he understood
what was going on and that everything was fine and now I’ve got a 2255 from
him saying he can’t speak English.” W hile the district court’s statements may
well reflect frustration with Franco-Guillen’s apparent, albeit unexplored,
contradictions between the change of plea hearing and the sentencing hearing, his
reference to Hispanics and his use of an example of another Hispanic defendant in
discussing Franco-Guillen’s perceived lack of truthfulness would cause a
reasonable person “to harbor doubts about the judge’s impartiality” in this case.
Exercising jurisdiction pursuant to 28 U.S.C. § 1291, this court reverses
Franco-Guillen’s conviction and remands the matter to the district court for
further proceedings. Upon remand, the case should be reassigned to a different
district court judge who must vacate Franco-Guillen’s conviction and begin
proceedings anew .
ENTERED FOR THE COURT
M ichael R. M urphy
Circuit Judge
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