                                                                     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       This order and judgment is not binding precedent, except under the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.



                                         -2-
             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.

                                          -3-
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.

                                          -4-
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

                                         -5-
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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