     Case: 10-40257 Document: 00511407722 Page: 1 Date Filed: 03/11/2011




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

                                                 FILED
                                                                           March 11, 2011
                                     No. 10-40257
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

JOSE GARCIA, JR.,

                                                   Defendant-Appellant


                   Appeals from the United States District Court
                        for the Southern District of Texas
                             USDC No. 7:99-CR-314-1


Before KING, DeMOSS, and DENNIS, Circuit Judges.
PER CURIAM:*
       Jose Garcia, Jr., appeals the judgment revoking his second term of
supervised release and imposing a prison sentence that is to run consecutively
to a prior state sentence for murder and a prior federal sentence for attempted
murder. The state murder conviction was the basis for the revocation petition
when it was initially filed, in the McAllen division of the Southern District, to
revoke Garcia’s supervised release. As Garcia entered the courtroom for the
hearing on that petition, he attacked a deputy United States marshal with a

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 10-40257

razor blade. Garcia’s revocation proceeding was later transferred to the Houston
division of the Southern District after Garcia was indicted there for attempting
to murder the deputy marshal. Garcia pleaded guilty to attempted murder and
appeared before Judge Ewing Werlein, Jr., for sentencing in March 2010.
During the sentencing hearing, Garcia assaulted an assistant United States
attorney and had to be subdued by United States marshals.
      Before the date of his rescheduled hearing to revoke his second term of
supervised release, Garcia moved to recuse Judge Werlein on the basis that his
involvement in the revocation proceeding might create an appearance of
partiality, given that Judge Werlein had witnessed the assault on the assistant
United States attorney. Judge Werlein denied the motion, revoked Garcia’s
second term of supervised release, and imposed a 21-month prison sentence.
      Garcia relies on 28 U.S.C. § 455(a) as his basis for relief. Under that
subsection, a justice, judge, or magistrate of the United States is required to
recuse himself “in any proceeding in which his impartiality might reasonably be
questioned.” § 455(a). This court ordinarily reviews the denial of a recusal
motion for abuse of discretion. Trevino v. Johnson, 168 F.3d 173, 178 (5th Cir.
1999). A “judge abuses his discretion in denying recusal where a reasonable
man, cognizant of the relevant circumstances surrounding [the] judge’s failure
to recuse, would harbor legitimate doubts about that judge’s impartiality.”
Andrade v. Chojnacki, 338 F.3d 448, 454 (5th Cir. 2003) (internal quotation
marks and citation omitted).
      Garcia urged in the district court that recusal was necessary based on the
incident involving the assistant United States attorney. Accordingly, to the
extent that his motion was predicated on this incident, review would be for
abuse of discretion. See Trevino, 168 F.3d at 178. On appeal, however, Garcia
suggests additionally that recusal was necessary on account of his attempted
murder of the United States marshal. Consequently, to the extent that Garcia’s
appellate argument is predicated on that incident, too, the plain error standard

                                       2
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                                 No. 10-40257

of review would be implicated. See United States v. Allen, 587 F.3d 246, 251 (5th
Cir. 2009).    But as Garcia cannot prevail even under the less deferential
standard of review for abuse of discretion, we need not address his claims
separately under different standards of review.
      Garcia offers no reason why Judge Werlein was required to recuse himself
from the revocation proceeding. We find unavailing Garcia’s contention that he
should be likened to one who commits repeated contempt of court, including
vilification of the presiding judge, and that he should therefore be entitled to
have some other judge try him for contempt. Judge Werlein was not present
when the revocation hearing first convened and Garcia attacked the deputy
marshal.      And there is no evidence that Garcia said or did anything
contemptuous of Judge Werlein himself at the sentencing hearing at which
Garcia assaulted the assistant United States attorney. Thus, even if this case
were likened to a contempt case, it would not be the kind in which recusal is
required because the defendant vilified the presiding judge. See Caperton v.
Massey, 129 S. Ct. 2252, 2262 (2009). Accordingly, even assuming Garcia’s
assault of the prosecutor constituted contemptuous behavior, Judge Werlein was
not required to recuse himself from any proceedings involving Garcia. See Allen,
587 F.3d at 251. Additionally, we reject Garcia’s implicit suggestion that his
contumacious behavior in two federal courtrooms in and of itself creates a
potential for federal judges to be biased against him; Garcia may not engage in
repeated courtroom assaults and thereby insulate himself from federal judicial
authority. See Bigby v. Dretke, 402 F.3d 551, 560 (5th Cir. 2005). We, thus,
discern no abuse of discretion, and the judgment of the district court is
AFFIRMED.




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