### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

No. 10-11024

UNITED STATES OF AMERICA, Plaintiff - Appellee
v. BRION GARY RANDALL, Defendant - Appellant

Appeals from the United States District Court for the Northern District of Texas USDC No. 3:10-CR-117-1

Before HIGGINBOTHAM, OWEN, and HAYNES, Circuit Judges. PER CURIAM: * Brion Gary Randall appeals his sentence following a plea of guilty to one count of mail fraud in violation of 18 U.S.C. § 1341 and one count of bank fraud in violation of 18 U.S.C. § 1344. Randall raises two issues before this court: (1) whether the district court judge should have recused himself because the judge also presided o v e r a civil trial involving Randall that was based on the same underlying facts; and (2) the procedural and substantive reasonableness of his sentence. Finding no error, we AFFIRM. U n i te d S ta te s C o u rt o f A p p ea l s F i ft h C i rc u i t 

### F I L E D Sep tem ber 1 , 20 11 Lyle W . Cayce Clerk

Pursua nt to 5 T H C IR

. R. 47.5 , the cour t hasd ete rm inedt hat this op inion s houldnot * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t forth in 5 T H C IR

. R. 47.5 .4. Case: 10-11024 Document: 00511591070 Page: 1 Date Filed: 09/01/2011No. 10-11024 I. FACTS AND PROCEDURAL HISTORY From 2004 to 2009, Randall conducted two scheme s th a t eventually defrauded at least twenty-seven investors and three banks. Randall conducted the first scheme by persuading individuals, some of whom he met at Alcoholics Ano nym ou s (“

A A ”) m e etings, to invest in non-existent, short-term loan pro gr a m s that promised i nvestors high interest rates, low risk, and a quick return of capit a l. Randall told his victims that he was pooling money from various investors into two central bank accounts, that he had invested millions of dollars of his own money in the venture, and that the accounts regularly maintained a balance of between $25 to $29 million so the victims’ money was readily accessible. Randall used fake statements, portfolio summaries, and c o m p uter

screen shots to reassure and convince the investors of his credibility. Twenty-seven investors eventually sustained an aggregate loss of $4.6 million. As part of his second scheme, Randall obt a i n e d o v e r $1 million in loans from Texas Capital Bank, Bank of America, and a predecessor of Wells Fargo Bank by submitting fraudulent statements that inflated hi s i n c o me and assets. Randall also forged the signatures of victims on loan gu a r a n t e e s . Randall eventually defaulted on all of the fraudulently obtained loans, and the banks lost $875,216.38. On March 3, 2010, Randall was charged with bank fraud and mail fraud. Randall waived indictment and pleaded guilty to both counts at an arraignment before a magistrate judge. The district court judge agreed with the magistrate judge’s recommendation to accept R a n d a l l ’s plea and found Randall guilty on June 2 , 2010. Six days before Randall’s sentencing, the judge transferred the

case to a different district court judge, who was presiding over a civil case filed by the Securities and Exchange Commission (“SEC”) against Randall based on the same fraudulent conduct at issue in Randall’s criminal case. Randall filed several motion s , obj e c ting to the transfer, moving for a continuance and for

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access to documents under seal in t h e c ivil case, and moving for the judge’s

r e c u s a l from the criminal sentencing. The judge to whom the case was transferred denied these motions. After a hearing, that judge determined that the gu i d elines range for Randall’s sentence was 97 to 121 months. The court

s e n t e n c ed Randall to 180 months imprisonment, as well as a substantial restitution payment and three years of supervised release. Randall appealed. II. DISCUSSION 1. Recusal Randall argues t h a t the district court judge to whom the case was transferred abused his discretion in denying Randall’s motion t o r e c use that

1 judge under both 28 U.S.C. § 455(a) and § 455(b)(1). Randall asserts that the 2 judge had pers o n al knowledge of disputed facts because he also presided over the civil suit filed by the SEC against Randall. In support of that assertion, Randall contends that the knowledge gained by the receiver in the civil case should be imputed to the judge. Further, during the civil suit, th e j udge presided over depositions that primarily focused on the deletion of computer files from computers owned by Randall. Section 455(a) and § 455(b)(1) “afford separate, though overl a p p i n g, grounds for recusal.” Andrade v. Chojnacki , 338 F.3d 448, 454 (5th Cir. 2003). Thus, “whenever a judge’s partiality might reasonably be questioned, recusal is required under § 455(a), irrespective [sic] whether the circumstance is covered

Randal l doe s not chall enge the tra nsf er on app eal, only the dec isi on by the tra nsf ere e 1 judge not to rec usehi ms elf

. 28 U. S. C. § 4 55 p rovid est hat: 2 ( a) Any just ice, judge, or magis tra te [m agist rat e judge] of the Unit ed Sta tes sha ll dis qualif

y him se lf in any pr oce edi ng in wh ich his im partial ity mi ght reas o n ab l y be ques tio ned. (b) H e s hall als o d isqualif y him se lf in the fol low ing c irc ums tanc es : (1) Wher e he has a per so nal bias or p rejud ice conc erni ng a par ty, or per so nal kn ow led ge o f dis put ed evide ntiary f act s conc erni ng t he pr oce edi ng;
. . . 3 Case: 10-11024 Document: 00511591070 Page: 3 Date Filed: 09/01/2011No. 10-11024

by § 455(b).” Id. “[T]he view of the average, reasonable person is the standard for analysis as to wh e t h e r a judge shall disqualify himself or herself.” In re Faulkner , 856 F.2d 716, 720 (5th Cir. 198 8). “[T]he origin of a judge’s alleged bias is of critical importance.” Andrade, 338 F.3d at 455 (noting that the Supreme Court applied the “extrajudicial source rule” to the interpretation of § 455 in Liteky v. United States , 510 U.S. 540, 555 (1994)). “ Personal knowledge” as used in § 455(b)(1) generally does not encompass knowledge acquired by a judge while performing judicial duties. “As

a general rule, for purposes of recusal, a judge’s ‘personal knowledg e ’ of evidentiary facts means ‘extrajudicial,’ so facts learned by a judge in his or her judicial capacity regarding the parties before the court, whether learned in the

same or a related proceeding, cannot be the basis for disqualification.” Conkling

v. Turner , 138 F.3d 577, 592 (5t h C i r . 1998) (internal quotation marks and citation omitted). Thus, “[m]ere prior knowledge of some facts concerning a litigant

. . . is not in itself necessarily sufficient to require disqualification.” United States v. Seiffert , 501 F.2d 974, 978 (5th Cir. 1974); see also United States

v. Clark , 605 F.2d 939, 941 (5th Ci r . 1979) (per curiam) (finding that the trial judge’s receipt of a presentence report di d n o t disqualify him, as holding otherwise would suggest that the court “would be disqualified to try the same defendant on other offenses”; such a result “would be highly untenable in light of the decisions that a tri a l j u d g e , who is familiar with the defendant’s b a c k gr o u n d by reason of having tried him in previous cases, is not thereby disqualified to try the same defendant in subsequent cases” (quoting Smith v. United States , 360 F.2d 590, 592 (5th Cir. 196 6))). We review a trial court ’ s d e nial of a motion to recuse for abuse of discretion. United States v. Allen , 587 F.3d 246, 251 (5th Cir. 2009), cert. denied , 130 S. Ct. 1564 (2010). W e f i n d n o ab u s e o f discretion in the judge’s deni a l o f Randall’s motion to recuse. Randall has made no showing that the judge

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obtained any “ext r aj u di c ial information.” Rather, all of the information the judge allegedly received by presiding over the civil case was information gained while the judge acted in a judicial capacity. Judges routinely receive potentially inflammatory or irrelevant information that c a n n ot later be used in a subsequent or related proceeding—for example, evidence f o u n d to be inadmissible. Yet, we rarely f i n d s u c h information requires recusal. Without
any showing that the “i n t r aj u di cial” information learned by the judge in this

case was of a type that would make fair judgment impossible, such information is not disqualifying. Nor do we believe that the mere fact that the judge obtained information during the course of t h e c ivi l proceeding would raise a question in the mind of

a reasonable person as to the judge’s impartiality. Randall does not point to any adverse rulings or opinions that could demonstrate that the judge harbored “a deep-seated favoritism or antagonism that would make fair judgment impossible.” Liteky , 510 U.S. at 555; s e e a lso In re Corrugated Container Antitrust Litigation , 614 F.2d 958, 963-64, 9 6 6 ( 5 t h Cir. 1980) (finding that a judge did not need to recuse from presiding over a civil case simply because he made evidentiary rulings during the course o f a c ri m inal trial in which the defendant was also involved; noting that the rulings in the criminal trial would

n o t “ c a u s e a reasonable third party to question his impartiality in the civil litigation”). The district court judge did not abuse his discretion in denying the motion to recuse given the facts of this case. 2. Reasonableness of Sentence Randall challenges both the procedural and substantive reasonableness of his non-Guidelines sentence. We review th e reasonableness of a district 3

We rec ognize thr ee type s of se nten ces : (1) “a se nten ce wi thin a pr ope rly calc ulate d 3 Gu ide lines range” ; (2) “a se nten ce that inclu des an upw ard or dow nw ard dep art ure as allow ed by the Gu ide lines ”; and (3) “‘a no n - Gu ide line se nten ce’ or a ‘vari ance ’ that is outs ide of the 5 Case: 10-11024 Document: 00511591070 Page: 5 Date Filed: 09/01/2011No. 10-11024

court’s sentencin g de cision under an abuse of discretion standard. Gall v. United States , 552 U.S. 38, 46 (2007); United States v. Herrera-Garduno , 519 F.3d 526, 529 (5th Cir. 2008). In reviewing a sentence, we utilize a two-step approach, first asking “whether the district court committed a procedural error.” United S t a t e s v. Valencia , 600 F.3d 389, 433 (5th Cir.), cert. denied , 131 S. Ct. 28 5 (2010). Such errors include “miscalculating or failing to calculate the sentencing range under the Guidelines, treating the Guidelines as mandatory, failing to

c o n s i der the § 3553(a) factors, selecting a sentence based on clearly erroneous f acts, or failing to adequately explain the chosen sentence—including an

e x planation for any deviation from the Guidelines range.” United States v . Mondragon-Santiago , 564 F.3d 357, 360 (5th Cir.), cert. denied , 130 S. C t

. 192 (2009). We review a district court’s interpretation of the sentencing Guidelines d e n ovo and the underlying factual findings for clear error. United S t a t e s v . Rajwani , 476 F.3d 243, 248 (5th Cir. 200 7). “If the sentence is procedurally proper, the court engages in a substantive review based on the totality of the circumstances.” Mondragon-Santiago , 564 F.3d at 360. “[T]he fact that the appellat e c o u rt might reasonably have concluded that a different s e n t e nce was appropriate is insufficient to justify reversal of the distric t c o u rt.” Herrera-Garduno , 519 F.3d at 530 (citation omitted). “The reasonableness inquiry on appea l for both Guideline and non-Guideline sentences must be guid ed by the sentencing considerations set forth in 18 U.S.C. § 3553(a).” Rajwani , 476 F.3d at 250.

“A p a rt y must raise a claim of error with the district court in such a

manner so that the distric t c o urt may correct itself and thus, obviate the need for our review.” Mondragon-Santiago , 564 F.3d at 361 ( quot i n g U n i t ed States

v. Rodriguez , 15 F.3d 408, 414 (5th Cir. 1 9 9 4) (quotation omitted)). If a

rele vant Gu ide lines range. ” Uni ted States v. Bran tley , 537 F.3d 347, 349 (5th Cir. 2008) (quo ting Uni ted Sta tes v. Sm ith , 440 F.3d704 , 706- 08 ( 5th Cir. 200 6))

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defendant fails t o raise an objection to either the procedural or substantive reasonableness of a sentence, we review the sentence for plain error. Id. To survive plain error review, a defendant must show that: “(1) there is error (and in light of Booker, an ‘unreasonable’ sentence equates to a finding of error); (2) it is plain; and (3) it affects substantial rights.” United States v. Peltier , 505 F.3d 389, 392 (5th Cir. 2007). If the defendant ma k e s t hat showing, we have the di s c r etion to correct the forfeited error, but should do so only if the “ e rr o r seriously affect[s] the f airness, integrity or public reputation of judicial proceedings.” Id. (internal quotation marks and citation omitted). A. Sentencing Procedure Randall argues that the distric t c ourt did not provide an adequate explanation of the reasons for imposing a non-Guidelines sentence. Because Randall did not specifically object during sentencing on this ground, we review 4 for plain error, see Mondragon-Santiago , 564 F.3d at 361, and find none on this record. The district court cited sev e r a l o f t h e § 3553(a) factors during the sentencing hearing, as well as discussed the facts of the case that warranted a greater sentence than that provided by the Guidelines. Compare Rajwani , 476 F.3d at 251 (finding a sentence procedurally reasonable because t h e district court’s explanation of the reason for its departure reflected a consideration of the relevant § 3353(a) factors), with Mondragon-Santiago , 564 F.3d at 363 (finding procedural error because the district court “di d not give any reasons for its sentence b e y o n d a bare recitation of the Guideline’s calculation”). Although when a district court imposes a non-Guidelines sentence, “a more thorough

Rand all cont ends t hat his of fert o filehis objec tio ns in w rit ing, w hich wa s rejec ted 4 by the dis tri ct judge with wo rd s to the eff ect of “you have mad e your objec tio ns, ” suf fic es to enco mp ass this pr oce dur al objec tio n. Ho we ver, he neit her com mun icat ed this objec tio n to the dis tri ct cour t nor mad e c learthat he had add itio nal objec tio ns not alre ady rais ed. 7 Case: 10-11024 Document: 00511591070 Page: 7 Date Filed: 09/01/2011No. 10-11024

explanation is required,” Smith , 440 F.3d at 707, the district court gave such an explanation here. 5 Randall also a r gu e s that the district court erred because it did not first consider the Guidelines departure provisions before imposing a variance. We again conduct a plain error review, as Randall did not object during sentencing

on this ground. See United States v. Gutierrez , 635 F.3d 148, 152 (5th Cir. 2011) (reviewing a similar argument for plain error because the district court could not have understood from an objection to other procedural aspects of a sentence that the defendant wanted the court to consider the departure policy s t a t e m e n t in § 4A1.3). 6 Randall relies on a case from the Third Circuit that states that a district

c o u rt m u s t engage in a three-step process when imposing a sentence: “(1) calculate the applicable Guideli n e s r ange, (2) formally rule on any departure moti o n s , a n d (3) exercise its discretion in applying the factors set forth in 18 U.S.C. § 3553(a).” See United Stat e s v . G r i er , 585 F.3d 138, 141-42 (3d Cir.

To the exten t that Randal l chall enges the wr itt en st atem ent of reas ons pr ovide d, that 5 st atem ent wa s als o ade quate

. See Uni ted Sta tes v. G onzalez , 445 F.3d815 , 819- 20 ( 5th Cir. 2006) (f indi ng that the dis tri ct cour t’s st atem ents , m ade both oral ly in ope n court and in
wr itin g in a st atem ent of reas ons , sat isf ied the requ irem ents of § 3353(c) (2) ); Uni ted States v. Pow el l , 402 F. App ’x 930, 932 (5th Cir. 2010) (p er curiam) (unp ublis hed) (f indi ng no abus e of d i sc ret ion beca use the “s ente ncing hearing tra nsc rip t, writt en judgm ent, and st atem e n t o f reas ons , toget her pr ovide det ails of the dis tri ct cour t’s rulin gs” and, ther efo re, “th e dis tri ct cour t suf

fic ient ly c om pli ed wi th § 3 353(c) (2) ”)

. In his rep ly brie f, Randal l argues that a 2010 ame ndm ent to § 1B1.1 of the Gu ide lines 6 sup por ts his pos itio n. That argum ent wa s arguabl y wa ived beca use Randal l fai led to rais e it in his ope ning brie f. See Uni ted States v. Jac kson , 4 2 6 F

. 3 d 3 0 1 , 3 04 n.2 (5t h Cir. 2005) (“Argum ents rais ed for the fir st tim e in a rep ly brie f, even by pr o se liti gants

. . ., are wa ived. ”)

. Regardles s of wa iver, the cit ed ame ndm ent, Ame ndm ent 741, beca me eff ect ive aft er the dat e of Randal l’s se nten ce and has not been mad e ret roac tivel y app licable. The dis tri ct cour t wa s requ ired to app ly the Gu ide line s v e r s i on in eff ect on the dat e of Randal l’s se nten ce. See 18 U. S. C. § 3553( a)( 4)(ii) ; see also United States v . Linds ey , No. 10-1 0769, 2011 WL 1758724 , at *1 (5t h Cir. May 9, 2011) (p er curiam) (unp ublis hed) (s tat ing that the dis tri ct cour t cor rec tly app lied a for me r Gu ide line pr ovis ion beca us e t h e def enda nt wa s se nten ced prior to the eff ect ive dat e of an ame ndm ent, and the ame ndm ent wa s not mad e ret roac tivel y app licable)

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2009). The Third Circuit found that “[b]y making the Guidelines advi s o ry , Booker gave district courts discretion at step three—but only after steps one and two have been completed properly.” I d

. at 142. Other circuits have held similarly. See United States v. Tucker , 473 F.3d 556, 560-61 ( 4 t h Cir. 2007) (stating that the court should first look to wheth e r a departure is appropriate and, if the “departure range still does not serve the factors set forth in § 3553(a), the court may then elect to impose a non-guideline sentence” ( qu o t i ng United States v. Moreland , 437 F.3d 424, 434 (4th Cir. 2006)); United States v. Solis-Bermudez , 501 F.3d 882, 884 (8th Cir. 2007) (holding that to preserve the distinction between departures and variances, district courts must engage in the three-step process); United States v. Guyton , 636 F.3d 316, 319-20 (7th C ir. 2011) (noting that § 1 B 1

. 1 l a ys out the order in which courts apply the Guideline provisions). Here, the PSR did n o t r e commend any departures, nor did the Government ask for one. Even t h o u gh the record does not clearly indicate whether the district court considered any applicable departure provisions before imposing a variance, Randall has not shown that this alleged defec t i n th e procedure constituted plain error affecting his substantial rights. We have also recently rejected an argument similar to Randall’s. See Gutierrez , 635 F.3d at 150-52. Randall’s argument that the district court committed procedural error because it did not first consider a departure before imposin g a n o n - Guidelines sentence fails under plain error review. Finally, Randall asserts that the district court erred in relying on “further crimes of the defendant” and “the history and characteristics of the defendant.” Even t h ough Randall did not have a criminal history, the PSR described a disciplinary action against Randall after he conducted transactions on customer funds w i t hout the consent of those customers while Randall was employed at Merrill Lynch. The PSR described this disciplinary action, and victims testified

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during the sentencing about their knowledge of the incident. While the district court did not spec i f

i c ally refer to the disciplinary action when explaining its

reasons for the variance, the district court could take that action into account. Further, several witnesses testifi e d t h at they believed Randall was capable of

c ommitting fraud again. Given the facts of this case, we find no error i n th e district court’s finding that these two factors supported a variance. B. Substantive Reasonableness Because Randall objected below to the substantive reasonableness of the sentence, we review his arguments under an abuse of discretion stan d ar d

. When

r eviewing a sentence for substantive reasonableness, we do not use a “ri gi d mathematical formula that uses the percen t a g e o f a departure [from the Guid e l i n e s range] as the standard for determining the strength of the just i f i c a t i o n s required for a specific sentence.” United States v. Williams , 517 F.3d 801, 811 (5th C ir . 2008) (quoting Gall , 552 U.S. at 47) (alteration in original). However, we m a y “take the degree of variance into account and consider the extent of a deviation from the Guidelines.” Id. at 811-12 (quoting Gal l , 5 5 2 U .S. at 47). “A non-Guideline sentence is unreasonable where it ‘(1) does not account for a factor that shou l d h av e received significant weight, (2) gives significant weight to an irrelevant or improper factor, or (3) represents a clear error of judgment in balan cing the sentencing factors.’” United States v. Tzep-Mejia , 461 F.3d 522, 528 (5th Cir. 2006) (quoting Smith , 440 F.3d at 708). We first note that even though the variance in this case was approximat ely fifty percent higher and fifty-nine months more than t h e t o p of the calculated Guidelines range, we have upheld similar variances. See, e.g., Smith , 440 F.3d at 7 0 5

- 0 6 ( sentence of 60 months where maximum sentence under Guidelines

was 27 months); United States v. Jones , 444 F

. 3 d 4 3 0 , 433 (5th Cir. 2006) (sentence of 120 months where maximum Guidelines sentence was 57 months); United Stat e s v. Brantley , 537 F.3d 347, 348-50 (5th Cir. 2008) (variance from

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Guideline maximum of 51 months t o sentence of 180 months); Williams , 517 F.3d at 811 (variance from Guideline maximum of 121 months to sentence of 172 months). Randall argues that the district court erred in using his p a rticipation in AA meetings and the fact that some of his victims were also members of AA to support an upward variance. The district court stated t hat it did not feel that the Guideline s t o o k into account the unique facts of this case, namely that Randall used his role as a leader in AA meetings to find at leas t s ome of his victims. Further, the district court noted that individuals involved in AA were expected to lower their guard and maintain “rigorous honesty.” While they were not “vulnerable victims” as defined i n § 3A1.1 of the Guidelines, they were vulnerable to fraud crimes perpetrated by leaders within AA like Ran d a l l in a way different from ordinary victims, thus making Randall’s conduct particularly reprehensible. We do not find an abuse of discretion in the district c ourt’s conclusion that t he Guidelines did not take such circumstances into consideration. During sentencing, de f e n s e counsel also objected to the variance on the grounds that the Guidelines already accounted for certain aspects of the offense

a n d t h e victims. However, “a district court may rely upon factors already incorporated by the Guidelines to support a non-Guidelines sentence.” Brantley , 537 F.3d at 350; s e e a ls o W illiams , 517 F.3d at 809 (“The Supreme Court’s de ci s io n in Booker implicitly rejected the position that no additional weight could be given to factors included in calculating the app l i c able advisory Guidelines

ra nge, since to do otherwise would essentially render the Guidelines mandatory.”). In Williams , we held that “the district court was not prohibited from considering the number of victims, the harm to individuals, the expansive reach of the crimes, or the complexity of the scheme, even though the Guidelines sentencing range for money laundering may impli citly have taken complexity

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and the number of victims into account

. . . . ” 517 F.3d at 810-11. Thus, even though the district court found the abuse of trust and vulnerable victim enhancements unwarranted in this case does not mean that the di s t ri c t court could not consider such facts when imposing a non-Guidelines sentence. Randall has not shown that the district court gave weight to an irrelevant

or improper factor. Nor has Randall demonstrated that the district court did not account for a factor that should have received significant weight. Although the sentence in this case is high, Randall’s fraudulent s c h e m e s were lengthy, complex, and involved numerous victims. We find the sentence to b e both procedurally and substantively reasonable. AFFIRMED.

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