NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION File Na me: 11a0443n.06 No. 09-6342 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

UNI TED STATES OF AMERI CA, P laintif f-App ellee,

v. J EROME RANSOM, Defendan t-Appellant.

_______________________________________ ) ) ) ) ) ) ) ) ) ) ON AP P EAL FROM THE UNI TED STATES DI STRI CT COURT FOR THE E ASTERN DI STRI CT OF TEN

NESSEE
O P I N I O N

Before: DA UG HTREY, MOORE, an d ST RANCH, Cir cuit Judges. KA REN NELSO N MOORE, Circuit Judge. Def endant- Appellant J erome Ransom w as char g ed with two counts of bank robber y in the United States District Court for the Easter n District of Tenne ssee. He filed a motion for rec usal of the district judge assig ned to his case based on statements made by th at j u dg e about a y ear ear lier, when Ransom appea red befor e the judge as a witness in the supervised- rele ase- revoc ation hear ing of Ransom’s brother. The district judge denied this motion and, afte r Ransom pleade d g uilty to one count and t h e o t h er count was dropped,
sentenc ed Ransom to 188 months in prison—at the high end of t h e 1 5 1 –188-month Guidelines rang e. Ransom appea ls both the denial of his motion for rec usal and his sentenc e. Seeing no merit in these ar g uments, we AF F IRM his conviction and sentenc e.No. 09-6342

United States v. Ransom

I. BACKG ROUND J erome Ransom was indicted on October 15, 2008, and char g ed with two counts o f b ank robber y , in violation of 18 U.S.C. § 2113(a)

. I n J anuar y 2009, Ransom filed a motion fo r rec usal of the district judg e hea

ring his case ba sed on t he fact t hat R ansom had appear ed before the judge about a y ear ear lier to testify on behalf of Ransom’s brother, Kelvin Ellison, and the judge had found Ransom to lack cre dibilit y . Ellison was appea ring befor e the judge in a super v i sed-r elea serevoc ation hear ing due to an ag g rava ted robber y in which Ellison a

n d Ra n s o m a ll e g e d ly p a

r ti cipated. Ransom testified that he had been the onl y one involved in an alterc ation with the victim of the ag g rava ted robber y and that Ellison had not been involved at all, but the judge believed that Ransom

was ly ing. The judge found that Ransom’s testimony l ac k ed cr edibi lity and “that [R ansom’s] testimony . . . was an eff

ort to divert bl ame from [Ell ison.] ” App. at 97 (Ellison Revoca tion Hr’g Tr.). The judge then continued: Having had a chanc e to look Mr. Ransom in the fac e, and having a chanc e to hear his t es t i m ony , I believe that even he knew that much of his testimony was incredibl e. When the Court asked him about his cra ck histor y an d h i s crack usag e and being seduce d to using cra ck coca ine on two occa sions, I think I detec ted a slight smile and a twinkl e in his ey e because he knew what he was say ing could not be beli ev ed by any one. Id. at 98. I n his moti o n fo r rec usal, Ransom arg ued that this adver se cre dibilit y finding war rante d

rec usal under 28 U .S.C. § 455(a) and (b)(1) beca use R ansom was also convicted in state court for this robber

y , and this conviction constituted a crime that made Ran s o m elig ible for a sentenc ing enhanc ement as a car eer offe nder under United State s S en t en cing Guidelines Manual (“U SSG”) 2No. 09-6342

United States v. Ransom § 4B1.1. Ransom stated that he wished to oppose the application of that enhanc ement, which might forc e him to testify

ag ain about the f

acts of the ag g rava ted robbe ry . The district judge order ed the g overnme nt to file a response to Ransom’s motion for rec usal, which it did on Fe bruar

y 1, 2009. About a wee k later, on Fe bruary 9 , 2 0 0 9 , t h e judge denied Ranso m ’s motion for recusa l. Rely ing primarily on Liteky v. United St ates , 510 U.S. 540 (1994), the judge held that his concl u s io n in E ll is o n ’ s s u p e r v ise d-re lease -re vocation proce eding that Ransom was not cre dible “wa s based on a judi cial procee ding, not fac ts from an ext rajudicia l source . Nor d o e s th e Co u

r t’ s cre dibilit y deter

mination sug g est a deep- seate d favor itism or antag onism that would make fair judgme nt impossibl e. I t was simply a deter mination, based on in-court proce eding s, that Def endant ha d not told the truth.” R. 16 at 4 (Orde r). On Marc h 5, 2009, Ransom pleade d g uilty to the first count of bank robber y in exchang e for the dismiss al of the sec ond count. The district judg e found that the application of both the car eer offe nder enhanc ement contained in USSG § 4B1.1 and a three -leve l reduc tion in offe nse level due
to Ransom’s acc eptanc e of responsi b i lity resulted in a Guidelines rang e of 151–188 months of imprisonment. The district jud ge s en t enced Ransom to 188 months in prison, to be followed by three y ear s of supervise d rele ase. Ransom now a ppeals. II. ANALYSIS R an s o m ar gu es that the district judge err ed in deny ing his motion for rec usal and that his
sentenc e wa s unrea sonable. We see no merit in either of these a rg uments.

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United States v. Ransom

A. The Motion F or Re cusal Was Pr operly Denied. We revie w for abuse of discretion a district court’s d enial of a motion to rec use. Buell v. Mitchell , 274 F.3d 337, 345 (6th Cir. 2001). Ransom’s arg ument that the district judge should have

rec used himself is based on 28 U .S.C. § 455, which provides, in releva nt part, as f

ollows: (a) An y justice, judge , or mag istrate judge of the United States shall disquali fy himself in any proce eding in whi ch his impartiality might rea sonably be questioned. (b) He sha ll also disqualify himself in the following circ umstances: (1) Where he has a persona l bias or prejudice conce rning a party , or persona l knowledg e of disputed eviden t i ar y fac ts conce rning the proce eding [.] 28 U.S.C. § 455. T h e l ea d i n g case from the Supreme Court on rec usal under § 455 is Liteky , in which the Supre me Court set out sever al important aspec ts of rec usal under § 455: First, judicial ruling s alone almost never constitut e a valid basis for a bias or partiality motion.

. . . Second, o p i n i o ns formed by the judge on the basis of fac ts introduced or events occur ring in the course of the current procee dings, or of prior proce eding s, do not constitute a basis for a bias or partiality motion unless they display a deep- seate d favo ri t ism or antag onism that would make fair judgme nt impossibl e. Thus, judicial rema rks during the course of a trial that are critica l or disapproving of, or even hostile to, counsel, the parties, or their case s, ordinarily do not support a bias or partialit y challeng e[, althoug h] they will do so if they reve al such a high deg ree of favor itism or antag onism as to make fair judgme nt impossibl e.

. . . Not establishing bias or partiality , however, ar e expressions of impatience, dissatisfaction, annoy ance , and even ang er, that are within the bounds of what imperfe ct men and w omen . . . sometimes display

. Id. at 555–56 (citation omitted; emphasis in orig inal). See also Lyell v. Renico , 470 F.3d 1177, 1186 (6th Cir. 2006) (c iting Liteky , 510 U.S. at 551, 555–56).

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United States v. Ransom

Cases in wh i ch rec usal was war rante d have involved, for example, instances in which the trial judge consistently interrupted the proce eding s in a one-sided manner . See, e.g. , i d

. at 1 1 87; Nationw ide Mut. Fire Ins. Co. v. Ford Motor Co. , 174 F.3d 801, 805–08 (6th Cir. 1999), overruled

on other grounds by Adkins v. W oleve r , 554 F.3d 650 (6th Cir. 2009) (en banc) ; Uni t ed S t a t es v. Hickm an , 592 F.2d 931, 936 (6th Cir. 1979). Be y ond this, howeve r, rela tively few case s developing Liteky can be found in this circ uit and elsewhe re. See Belue v. Leventhal , 640 F.3d 567, 573 (4th Cir. 2011) (“[T]he only case s wher e courts have g rante d rec usal motions based on in-trial conduct tend to involve singula

r and startling fac ts.”). I n Lewis v. Robinson , an unpublished case , the state trial
court stated that it would not believe L ewis and called L ewis names, “including

. . . a ‘three or four time lose r,’ a ‘dummy ,’ ‘spoiled brat,’ ‘ sham,’ ‘shill,’ and a ‘sociopath[,]’ . . . ofte n in r esponse to [L ewis’s] attempts to addre ss the trial court and to w hat the trial court perc eived as his a ttempts to delay the trial.” 67 F. App’x 914, 923 (6th Cir. 2003) (unpublished opinion). Citi ng Liteky , we held

on habea s revie w that “[a]lt houg h the statements by the trial judge in th i s ca s e cl ear ly expressed impatience, dissatisfaction, annoy ance , and also ang er, and wer e unnece ssary and perha ps uncalled for, these statements did not make fair judgme nt impossibl e.” Id. I n another unpublished case , United States v. Lossia , this court consid er ed a claim that rec usal was require d wher e the district judge compar ed the defe ndant’s crimes to robber y and stated, “it would have been better if he wer e a bank robber

. . . .” 193 F. App’x 432, 438 (6th Cir. 2006) (unpublis hed op i n i o n ). We held t hat

rec usal was not require d beca use the “De fenda

nt invited the analog y to robber y ,” when his counsel attempted to explain why the Defenda nt was not as bad as a bank robber. Id. Fur thermore, t h es e

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United States v. Ransom

comments fell under Liteky ’s finding that “‘judicia l rema rks

. . . that are critica l or disapproving of,

or even h o s t i l e to, counsel, the parties, or their cases, ordinarily do not support a bias or partiality challeng e.’” Id. (quoting Liteky , 510 U.S. at 555). Rely ing solely on Liteky ’s ref ere nce to comments that “display a deep- seate d

. . . antag onism that would make fair judgme nt impossibl e,” 510 U.S. a t 555, Ransom a

rg ues that sever al persona l
comments of the district judge reg arding Ransom during the Ellison supervised- rele ase- revoc ation hear ing require rec usal. Ransom complains that the j udg e labeled R ansom a “c rac k head,” which
term Ransom claims was used pejora tively , not descr iptively , and that the judge stated that Ransom

was “not doing any

thing at all productive.” Ransom Br. at 21–22 (quoting A pp. at 101). Ransom also takes i s s u e with the district judge ’s statements at the Ellison hear ing reg arding the neg ative behavior that cra ck addic ts stereoty pically eng ag e in: Crack addicts need cra ck coca ine. They don’t car e h o w t h ey get it or who they ’re g oing to g et it from. They ’ll rob their mother to g et enoug h money to g et their next cra ck high. So even though he [Mr. Ransom] knew this person knew him and committing the robber

y in the co u rs e o f an automobile being driven is dang erous—but cr ack a ddicts do things like that all the time. Ransom Br

. at 22 (quoting App. at 102 (alter ation added by Ransom)). Ransom also arg ues that the judge ’s claim at Ransom’s sentenc ing hear ing that he didn’t reme mber R an som from Ellison’s supervised- rele ase- revoc ation hear ing w as untrue. T h e g overnme nt responds by emphasizing that the fac tual basis for the district judge ’s comments was pr ovided by Ransom himself when Ransom a dmitted that he fre quently spent time outside a cra ck house with cra ck addicts, that he used cra ck coca ine himself on two occa sions, and

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United States v. Ransom

that he had very littl e employ ment history

. The g overnme nt also notes that E l l i son descr ibed Ransom as a habitual user of drug s in a statement that Ellison made to his probation officer, who, in turn, rela

y ed the statement to the district judge —a fac t that was acknow ledg ed by the judge in the supervised- rele ase- revoc ation hear ing. Ellison may have even used the term “cr ack head,” althoug h the judge couldn’t reme mber for sure. As a result, the g overnme nt urg es that the judge ’s statements did not ref

lect “such a h i gh d egr ee o f favor itism or antag onism as to make fair judgme nt impossibl e.” Liteky , 510 U.S. at 555. This is espec ially so , t h e go v er n m ent arg ues, beca use the district judge also expressed “sin ce re conce rn for [R ansom’s] well-be ing and future” in the
sentenc ing he aring . Gov’t B r. at 14. I n the sentenc ing he aring , the judg e stated: The Court was impressed with the statement that M r. R an s om made. The Court ag ree s with [defense counsel] that he is a person of considera ble intellect. And I put this long criminal history in his backg round down to him being a substance abuser , that is, an abuser of illega l substances. Th e C o u rt will rec ommend that while he’s in prison he re ceive trea tment for his drug problem. R. 38 at 14 (Sent. Tr.). Thus, the g overnme nt arg ues, it was not an abuse of discretion for the district judge to deny

Ransom’s motion for rec usal. We ag ree with t h e g overnme nt. Although we do not condone the use of the term “cr ack head,” we do not believe that the district judge abused his discretion in deny ing the rec usal motion. First, as Liteky explains, “expressio n s of impatience, dissatisfaction, [and] annoy ance . . . that

are within the bounds of wha t imperfec t men and women . . . some times display ” do not establish bias or par

tiality

. Liteky , 510 U.S. at 555–56. The statements here fall wit hin the purview of this lang uag e, espec ially when they are viewed in the larg er context of the Ellison hear ing, which shows

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United States v. Ransom

both that the judge g ave a thoroug h, well-re asoned, and fairminded explanation for his adver se

cre dibilit y finding and that Ransom and Ellison provided the judge with the fac tual predic ate for his
statements. Ransom admitted that he had used cra ck coca ine at least twice befor e, and that he fre quently spent time at a house with other individuals who “[h] ave been known to use cra ck[.] ” App. at 78, 82–85. Ransom also desc ribed his spa rse employ

ment history and his f

irst experience using cra ck coca ine. App. 79–86. Finally , perha ps in response to Ellison’s statement that Ransom

was a habitual user of drug s, the judge asked Ransom w hether he was known as a “cr ack head,” to which Ransom f

irst r esponded, “No one ca n actua lly —No one can come up here and say that they h av e seen me use.” App. at 86. After being presse d by the judge to g ive a less-eva s i v e an s we r, howeve r, Ransom simply aff irmed that he was not known in the community “as a cra ck head.” Id. After the closing arg ument in Ellison’s case (but befor e making the statements that Ransom complains of), the district judge g ave a rea soned explanation for his conclusion that Ransom lacke d

cre dibilit y . Ransom had testified that the victim of the ag g rava ted robber y was himself a cra ck user who was at the same cra ck house as Ransom, and that Ransom had assaulted the victim at that house. The district judge did not believe Ransom’s claim that the victim, who had spent twenty -seve n y ear s in the milit ary , was a

user of cra ck cocaine. The district judg e, who noted tha t he had spe nt many y ear s in the mili tary

himself, found unbelievable t hat t he victim either used cra ck while he was in the milit ary and avoided detec tion in fre quent drug tests or turned to c rac k “late in life,” which the judge said was “extremely rar e.” App. at 96–97. As a result, the judge found that it was not cre dible

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United States v. Ransom

that the victim was a cra ck user, and deter mined that “Mr. Ransom’s testimony is incre dible and is not to be believed.” Id. at 97. I t was only subsequently that the j u d ge made the “twinkle in his ey e” statement. Fur thermore , it was even later in the hear ing—w hile he was handing down Ellison’s sentenc e—that the judge made the stat em en t s ab o u t how Ransom was “proba bly a cra ck head” and that cra ck addicts would “r ob their mother.” Id. at 102, 103. Viewing the court’s state ments as a whole , we conclude that the district judge made a clea r and well-re asoned finding in Ellison’s supervise drele ase -revocation hear ing that Ransom lacke d cre dibilit y , and that the fac tual predic ate for the judge ’s statements about cra ck addicts was provided by both Ransom’s incriminating admissions and Ransom’s lack of cre dibilit y on other matters by , for ex am p l e, ac cu sing the victim of the ag g rava ted robber y of being a cra ck user. See Lossia , 193 F. App’x at 438 (noting that the defe ndant introduced the subject matter of the district court’s comments, if not the nat u re o r sty le of the comments, into the proce eding s). I nsofar as the district judge expressed displeasure with Ransom, we be lieve that this displeasure w as within the para meters se t by Liteky

. Liteky , 510 U.S. at 556. I n sum, it was not an abuse of discretion for the district judge to deny Ransom’s motion for

rec usal. The district judge ’s comments at Ellison’s supervised- rele ase- revoc ation hear ing one y ear befor e Ransom’s case did not “display a deep- seate d

. . . antag onism that would make fair judgme nt impossibl e.” Liteky , 510 U.S. at 555. We theref ore a ffirm the district c ourt’s denia l of Ransom’s motion for rec usal.

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United States v. Ransom

B. Ransom’ s Sentence Is Subs tantively Reasonable. Ransom next arg ues that the 188-month sentenc e he rec eived is unrea sonable. He contends that a sentenc e within the rang e that would have applied without the car eer -off ender enhanc ement “would have been ‘suffic ient, but not g rea ter than nece ssary ’ to achie ve the g oals of § 3553(a) .” Ransom Br. at 26 (quoting 18 U .S.C. § 3553(a)). The re is no mer it in thi s arg ument. We revie w for abuse of discretion claims of substantive unrea sonablene ss. United States v. Houston , 529 F.3d 743, 755 (6th Cir. 2008). The district court m u s t impose a sentenc e that is “suff icient, but not g rea ter than nece ssary , to comply with the purposes set forth in [18 U.S.C. § 3553(a) (2).]” 18 U.S.C. § 3553(a)

. “A sentenc e may be substan t i v el y unrea sonable wher e the district court selec t[ s] the sentenc e arbitra rily , bas[es] the sentenc e on impermissible fac tors, fail[s]
to consider pertinent § 3553(a) fac tors or g iv[ es] an unrea sonable amount of weig ht to any pertinent fac tor.” United States v. Martinez , 588 F.3d 301, 328 (6th Cir. 2009) (alter ations in orig inal; internal quotation marks omitted). When a sentenc e is within the Guidelines rang e, we may apply a presumption of rea sonablene ss. Id. A “mer e alleg ation that the s en tence imposed is g rea ter than

nece ssary to achiev e the g oals of punishment outlined in § 3553(a) is insufficient to rebut the presumption of re asonable ness.” United States v. De xta , 470 F.3d 612, 616 ( 6th Cir. 2006). Her e, Ransom’s 188-month sentenc e is within the Guidelines rang e of 151–188 months, and there fore is presumed rea sonable under this circ uit’s prec edent. As support for his arg ument that a sentenc e within the rang e that would have applied without the car eer -off ender enhanc ement “would have been” sufficie nt, Ransom claims that a lower sentenc e would have g iven him “the opportunity

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United States v. Ransom

to attempt to work ‘above the table’ for a number of y ear s befor e he qualified for S o ci al Security benef its.” Ransom Br

. at 27. Fur thermore , “While his daug hter J asmine woul d be g rown, Mr. Ransom could be a more actively -involved g randf ather to any children she may have.” Id. Ransom does not arg ue, howeve r, that the sentenc e was selec ted arbitra rily or based on impermissible fac tors,

or that the district court ei t h er fa iled to consider any particula r § 3553(a) fac tor or g ave impermissible we i ght to any one fac tor. Martinez , 588 F.3d at 328. Ransom’s arg uments do not suffice to show his sentenc e to be substantively unrea sonable. We there fore hold that his sentenc e was substantively

rea sonable. III. CONCLUSION For the reas o n s s t ated above, we AF F IRM both the district court’s denial of Ransom’s motion for rec usal and the se ntence imposed.

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