                                                                              FILED
                           NOT FOR PUBLICATION
                                                                              MAR 20 2020
                    UNITED STATES COURT OF APPEALS                         MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No.   18-50067

              Plaintiff-Appellee,                D.C. No.
                                                 3:13-cr-01128-BEN-3
 v.

ROBERT RODRIGUEZ, AKA Bouncer,                   MEMORANDUM*

              Defendant-Appellant.


                    Appeal from the United States District Court
                      for the Southern District of California
                    Roger T. Benitez, District Judge, Presiding

                       Argued and Submitted March 4, 2020
                              Pasadena, California

Before: KLEINFELD and NGUYEN, Circuit Judges, and PAULEY,** District
Judge.




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable William H. Pauley III, United States District Judge for
the Southern District of New York, sitting by designation.
      We have jurisdiction over Robert Rodriguez’s appeal under 28 U.S.C.

§ 1291 and 18 U.S.C. § 3742, and we affirm.

      1. Rodriguez was not entitled to have his recusal motion assigned to a

different judge, nor to have it granted, on the record before us. Under 28 U.S.C.

§ 144, a judge has a duty to “proceed no further” if the moving party “files a timely

and sufficient affidavit” that shows that the assigned judge “has a personal bias or

prejudice either against him or in favor of any adverse party . . . .” We held in

United States v. Azhocar, 581 F.2d 735, 738 (9th Cir. 1978), that the assigned

judge may properly decide whether the affidavit is “sufficient” and if it is not, need

not assign it to another judge. In the case before us, there appears to be no

affidavit. There is only a motion from Rodriguez’s counsel which includes some

allegations made in the first person as though from Rodriguez himself. And even

if that were treated equivalent to an affidavit, which it is not, nevertheless it would

not be “sufficient.” 28 U.S.C. § 144. To be sufficient, an affidavit must establish

bias or prejudice against a “party” or in favor of an “adverse party.” Id.; see also

United States v. Burt, 765 F.2d 1364, 1368 (9th Cir. 1985). It has long been held

that the “alleged bias and prejudice to be disqualifying must stem from an

extrajudicial source and result in an opinion on the merits on some basis other

than what the judge learned from his participation in the case.” Azhocar, 581 F.2d


                                           2
at 739 (emphasis in original) (quoting United States v. Grinnell Corp., 384 U.S.

563, 583 (1966)). None of the material Rodriguez relies on stems from an

extrajudicial source. Nor does it display the kind of “deep-seated . . . antagonism

[against Rodriguez] that would make fair judgment impossible,” which is

necessary to require recusal based on bias stemming from a non-extrajudicial

source. United States v. Hernandez, 109 F.3d 1450, 1454 (9th Cir. 1997) (per

curiam) (quoting Liteky v. United States, 510 U.S. 540, 554–56 (1994)). For the

same reasons, the district court did not abuse its decision in denying the motion to

recuse under 28 U.S.C. § 455.

      2. The claimed error in the court’s career-offender finding under the

Guidelines, if error at all, is harmless. Rodriguez had a base offense level of 34,

U.S.S.G. § 2D1.1(c)(3), increased by two levels for importation of

methamphetamine, U.S.S.G. § 2D1.1(b)(5), and increased by four levels for his

leadership role, U.S.S.G. § 3B1.1(a). His final offense level after these

adjustments was 40. Because Rodriguez’s offense level was greater than the

offense level specified in U.S.S.G. § 4B1.1(b), the court’s career-offender finding

did not change his total offense level. See United States v. Waters, 648 F.3d 1114,

1115–16 (9th Cir. 2011). And because of Rodriguez’s criminal history, he was in

Criminal History Category VI, which would generate the Guidelines range within


                                          3
which he was sentenced without a career-criminal enhancement. U.S.S.G.

§ 4B1.1(b); id. ch. 5, pt. A; cf. United States v. Cruz-Gramajo, 570 F.3d 1162,

1174 (9th Cir. 2009).

      3. The district court explained Rodriguez’s sentence sufficiently to show that

the 18 U.S.C. § 3553(a) factors were considered. See United States v. Cherer, 513

F.3d 1150, 1159 (9th Cir. 2008) (a district court need not “explicitly reference”

each factor). The sentence was within the Guidelines and amounted to a

substantial reduction from the 600-month sentence previously imposed. The judge

properly and adequately explained why he was imposing the sentence of the

duration he did. Accordingly, we have no basis for determining that the sentence

was substantively unreasonable.



AFFIRMED.




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