IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 19-40483

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

ISMAEL LECHUGA, also known as Junior 1, also known as Junior 5, also 

known as Junior 100,

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 7:16-CR-876-2

Before OWEN, Chief Judge, and HAYNES and COSTA, Circuit Judges.

PER CURIAM:*

Ismael Lechuga pleaded guilty to conspiracy to possess with intent to 

distribute five kilograms or more of cocaine and conspiracy to engage in money 

laundering. Shortly after his arrest, Lechuga began cooperating with the 

Government and was in line to receive credit for acceptance of responsibility 

under U.S.S.G. § 3E1.1(a) and a motion by the Government for a reduced 

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

July 9, 2020

Lyle W. Cayce

Clerk

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sentence pursuant to U.S.S.G. § 5K1.1. Before his scheduled sentencing, 

however, Lechuga, his brother, and his uncle were involved in warning law 

enforcement of a plan stemming from Mexico to kill the district court judge, 

Judge Randy Crane. As a result, Judge Crane received two or three personal 

briefings from federal marshals regarding the purported threat and 

experienced inconvenience in his life that he described as “de minimus.”

The investigation revealed that the threat appeared to be a hoax. Judge 

Crane was informed of that development and was also told that Lechuga had 

taken a polygraph exam that showed he was being deceptive. Lechuga then 

moved under 28 U.S.C. § 455(a) and (b)(1) for Judge Crane’s recusal. After 

hearing evidence on the matter, Judge Crane found that the threat was a hoax 

orchestrated by Lechuga to give the appearance of further assistance by him 

to the Government and to curry favor at sentencing. Judge Crane denied the 

motion to recuse.

Based on Lechuga’s involvement in the hoax, the Government decided 

not to file a § 5K1.1 motion and Judge Crane denied credit for acceptance of 

responsibility. Lechuga moved under 18 U.S.C. § 3553(a) for a downward 

variance from his guidelines range of 360 months to life imprisonment, but 

Judge Crane denied the request and sentenced him to a total of 360 months of 

imprisonment and five years of supervised release.

Lechuga seeks resentencing on three grounds. He first challenges the 

denial of his motion to recuse under § 455(a) and (b)(1). The district court’s 

denial of a motion to recuse is reviewed for abuse of discretion. Andrade v. 

Chojnacki, 338 F.3d 448, 454 (5th Cir. 2003). Under § 455(a), a judge must 

“disqualify himself in any proceeding in which his impartiality might 

reasonably be questioned.” § 455(a). A judge abuses his discretion in denying 

a motion under § 455(a) if a reasonable person who is cognizant of the relevant 

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circumstances would harbor legitimate doubts about the judge’s impartiality. 

Andrade, 338 F.3d at 454.

Section 455(b)(1) requires a judge to recuse himself where he “has a 

personal bias or prejudice concerning a party, or personal knowledge of 

disputed evidentiary facts concerning the proceeding.” § 455(b)(1). Generally, 

to warrant recusal under § 455(b)(1), the judge’s “bias or prejudice” or “personal 

knowledge of disputed evidentiary facts” must stem from an extrajudicial 

source. See Andrade, 338 F.3d at 455; Conkling v. Turner, 138 F.3d 577, 592 

(5th Cir. 1998). Recusal under § 455(a) likewise is generally limited to 

circumstances that arise from an extrajudicial source. See Liteky v. United 

States, 510 U.S. 540, 554 (1994); Andrade, 338 F.3d at 455.

While the presence or absence of an extrajudicial source is a significant 

factor, an extrajudicial source alone is neither a necessary nor sufficient 

condition for recusal. Liteky, 510 U.S. at 554-55. The rule concerning 

extrajudicial sources “more or less divides events occurring or opinions 

expressed in the course of judicial proceedings from those that take place 

outside of the litigation context and holds that the former rarely require 

recusal.” Andrade, 338 F.3d at 455 (footnote omitted) (citing Liteky, 510 U.S. 

at 555). “Non-extrajudicial facts ‘do not constitute a basis for a bias or 

partiality motion unless they display a deep-seated favoritism or antagonism 

that would make fair judgment impossible.’” Tejero v. Portfolio Recovery 

Assocs., 955 F.3d 453, 463 (5th Cir. 2020) (quoting Liteky, 510 U.S. at 555).

Lechuga contends that Judge Crane’s personal briefings from federal 

marshals during the investigation were extrajudicial in nature. According to 

Lechuga, such information qualified as “personal knowledge of disputed 

evidentiary facts” under § 455(b)(1) and presented a basis for at least 

reasonably questioning Judge Crane’s impartiality for purposes of § 455(a).

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We conclude that Judge Crane’s personal briefings were not 

extrajudicial. Those briefings and the information disclosed therein are 

comparable to the information and ex parte meetings in United States v. 

Phillips, 664 F.2d 971, 1000-04 (5th Cir. Unit B Dec. 28, 1981), superseded by 

rule on other grounds as recognized in United States v. Huntress, 956 F.2d 

1309, 1314-17 (5th Cir. 1992), that were determined to be not extrajudicial. As 

in Phillips, Judge Crane’s personal briefings were for a proper purpose and 

involved a threat to kill the judge. See Phillips, 664 F.2d at 1001, 1003-04. 

Additionally, Judge Crane was not an active participant in the investigation of 

the threat, as he merely received briefings on the investigation. See id.

Judge Crane also indicated in denying the motion to recuse that the two 

or three personal briefings he received were limited in detail and that the 

evidence later presented in court regarding the purported threat covered and 

exceeded the information provided in his personal briefings. Although Judge 

Crane’s personal briefings included disclosure of Lechuga’s polygraph results, 

Judge Crane did not consider the polygraph and granted the defense’s motion 

to exclude the polygraph information.

Having determined that no extrajudicial source was involved, we turn to 

whether there was “deep-seated favoritism or antagonism that would make 

fair judgment impossible.” Liteky, 510 U.S. at 555. Judge Crane’s behavior, 

comments, and rulings in this case do not meet that standard. See id. The fact 

that Judge Crane’s personal safety was the subject of Lechuga’s hoax also does 

not mandate recusal. See Phillips, 664 F.2d at 1001, 1004. A reasonable 

person who is cognizant of the relevant circumstances would not harbor 

legitimate doubts about Judge Crane’s impartiality. See Andrade, 338 F.3d at 

454. The denial of Lechuga’s motion to recuse was not an abuse of discretion. 

See id.

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Lechuga next challenges the denial of credit for acceptance of 

responsibility under § 3E1.1. We apply a standard of review that is even more 

deferential than clear error. United States v. Puckett, 505 F.3d 377, 387 (5th 

Cir. 2007). The testimony of FBI Agent Joshua Swims adequately supported 

the district court’s finding that the threat was a hoax for which Lechuga was 

responsible. Because Lechuga failed to withdraw from criminal conduct, the 

district court did not err in denying credit for acceptance of responsibility. See 

id.

In his final claim of error, Lechuga argues that the Government breached 

the plea agreement by advocating against credit for acceptance of 

responsibility and refusing to file a § 5K1.1 motion and that the Government 

breached a cooperation agreement by using his statements about the threat 

information to increase his guidelines range. Because Lechuga did not raise 

these arguments in the district court, we review them only for plain error. See

United States v. Cluff, 857 F.3d 292, 297 (5th Cir. 2017); United States v. 

Barnes, 730 F.3d 456, 457 (5th Cir. 2013).

The Government’s obligation under the plea agreement to recommend 

acceptance-of-responsibility credit was conditioned on Lechuga “clearly 

demonstrat[ing] acceptance of responsibility.” Lechuga failed to satisfy that 

condition, so the Government did not breach the plea agreement by not 

recommending the credit. See Cluff, 857 F.3d at 299-300.

The Government also did not breach the plea agreement by refusing to 

file a § 5K1.1 motion, as the plea agreement does not contain any terms 

obligating the Government to file a § 5K1.1 motion. See United States v. Long, 

722 F.3d 257, 262-63 (5th Cir. 2013). While Lechuga additionally contends 

that the Government’s refusal was unconstitutional, he does not identify any 

constitutionally suspect reason for the Government’s § 5K1.1 decision. See

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Wade v. United States, 504 U.S. 181, 186-87 (1992); United States v. Urbani, 

967 F.2d 106, 109 (5th Cir. 1992). Thus, he has not shown that the 

Government relied on an unconstitutional motive. See Wade, 504 U.S. at 186-

87; Urbani, 967 F.2d at 109. Lechuga’s request to remand the case so that he 

can attempt to seek out additional information relating to the plea agreement 

is denied. See McIntosh v. Partridge, 540 F.3d 315, 327 (5th Cir. 2008).

Lastly, Lechuga’s plea agreement contained no mention of a proffer or 

cooperation agreement, and the record does not contain any such agreement. 

Lechuga has the burden of proving that the underlying facts establish a 

breach. See United States v. Gonzalez, 309 F.3d 882, 886 (5th Cir. 2002). He 

has not shown that his statements regarding the hoax were protected by the 

terms of a proffer or cooperation agreement.

AFFIRMED.

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