     Case: 13-10709       Document: 00512644054         Page: 1     Date Filed: 05/28/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                              United States Court of Appeals
                                                                                       Fifth Circuit

                                     No. 13-10709                                    FILED
                                   Summary Calendar                              May 28, 2014
                                                                                Lyle W. Cayce
                                                                                     Clerk
UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

JESUS OSCAR LOPEZ,

                                                  Defendant - Appellant


                   Appeals from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:12-CR-219-5


Before JONES, BARKSDALE, and HAYNES, Circuit Judges.
PER CURIAM: *
       Jesus Oscar Lopez appeals his guilty-plea conviction and sentence for
one count of conspiracy to possess with intent to distribute more than 50
kilograms of a mixture and substance containing a detectable amount of
marijuana in violation of 21 U.S.C. §§ 841(a)(1) and 846. He contends the
district court abused its discretion in denying his amended motion to recuse
the district court judge under 28 U.S.C. §§ 144, 455(a), and 455(b)(1).


       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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.
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                                  No. 13-10709

      For the first time on appeal, Lopez contends he moved for recusal under
§ 455(b)(1) (disqualification of judge based on personal bias or prejudice). “This
circuit has not yet clearly defined the scope of our review of § 455 issues raised
for the first time on appeal.” McKethan v. Tex. Farm Bureau, 996 F.2d 734,
744 n.31 (5th Cir. 1993). Nevertheless, we pretermit the issue of the standard
of review because Lopez’ appeal fails even under the abuse of discretion
standard for properly preserved objections to denials of motions for recusal.
Patterson v. Mobil Oil Corp., 335 F.3d 476, 483 (5th Cir. 2003).
      By pleading guilty unconditionally, Lopez waived appellate review of the
denial of his amended motion to recuse under § 455(a) (disqualification where
impartiality reasonably questioned). See United States v. Hoctel, 154 F.3d 506,
508 (5th Cir. 1998). To the extent he contends Hoctel was decided wrongly, we
may not overrule another panel’s decision without en banc reconsideration, a
superseding contrary Supreme Court decision, or change in law. See United
States v. Lipscomb, 299 F.3d 303, 313 n.34 (5th Cir. 2002). Further, the record
belies his contention that waiver of his § 455(a) recusal claim was not preceded
by a full disclosure of the basis for recusal.
      Lopez has also failed to show the court abused its discretion in denying
his amended motion to recuse under either § 144 (bias or prejudice of judge) or
§ 455(b)(1). See United States v. MMR Corp., 954 F.2d 1040, 1044–46 (5th Cir.
1992). Aside from conclusional allegations that the district court judge had “a
personal bias, prejudice and/or impartiality against [defense counsel] and/or
his client,” Lopez failed to state facts showing the judge had an actual personal
extrajudicial bias or prejudice against him in particular. See 28 U.S.C. §§ 144
and 455(b)(1); Patterson, 335 F.3d at 483–84. “In order for bias against an
attorney to require disqualification of the trial judge, it must be of a continuing
and personal nature and not simply bias against the attorney or in favor of



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                                 No. 13-10709

another attorney because of his conduct.” Henderson v. Dep’t of Pub. Safety &
Corr., 901 F.2d 1288, 1296 (5th Cir. 1990) (citation omitted). The alleged facts,
if true, would not convince a reasonable person the judge had an actual,
personal extrajudicial bias or prejudice against defense counsel. See, e.g.,
Liteky v. United States, 510 U.S. 540, 555 (1994); Patterson, 335 F.3d at 483–
84.
       AFFIRMED.




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