     Case: 19-40483      Document: 00515482676         Page: 1    Date Filed: 07/09/2020




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

                                    No. 19-40483                                 FILED
                                  Summary Calendar                            July 9, 2020
                                                                            Lyle W. Cayce
                                                                                 Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

ISMAEL LECHUGA, also known as Junior 1, also known as Junior 5, also
known as Junior 100,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 7:16-CR-876-2


Before OWEN, Chief Judge, and HAYNES and COSTA, Circuit Judges.
PER CURIAM: *
       Ismael Lechuga pleaded guilty to conspiracy to possess with intent to
distribute five kilograms or more of cocaine and conspiracy to engage in money
laundering. Shortly after his arrest, Lechuga began cooperating with the
Government and was in line to receive credit for acceptance of responsibility
under U.S.S.G. § 3E1.1(a) and a motion by the Government for a reduced



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 19-40483

sentence pursuant to U.S.S.G. § 5K1.1.      Before his scheduled sentencing,
however, Lechuga, his brother, and his uncle were involved in warning law
enforcement of a plan stemming from Mexico to kill the district court judge,
Judge Randy Crane. As a result, Judge Crane received two or three personal
briefings from federal marshals regarding the purported threat and
experienced inconvenience in his life that he described as “de minimus.”
      The investigation revealed that the threat appeared to be a hoax. Judge
Crane was informed of that development and was also told that Lechuga had
taken a polygraph exam that showed he was being deceptive. Lechuga then
moved under 28 U.S.C. § 455(a) and (b)(1) for Judge Crane’s recusal. After
hearing evidence on the matter, Judge Crane found that the threat was a hoax
orchestrated by Lechuga to give the appearance of further assistance by him
to the Government and to curry favor at sentencing. Judge Crane denied the
motion to recuse.
      Based on Lechuga’s involvement in the hoax, the Government decided
not to file a § 5K1.1 motion and Judge Crane denied credit for acceptance of
responsibility. Lechuga moved under 18 U.S.C. § 3553(a) for a downward
variance from his guidelines range of 360 months to life imprisonment, but
Judge Crane denied the request and sentenced him to a total of 360 months of
imprisonment and five years of supervised release.
      Lechuga seeks resentencing on three grounds. He first challenges the
denial of his motion to recuse under § 455(a) and (b)(1). The district court’s
denial of a motion to recuse is reviewed for abuse of discretion. Andrade v.
Chojnacki, 338 F.3d 448, 454 (5th Cir. 2003). Under § 455(a), a judge must
“disqualify himself in any proceeding in which his impartiality might
reasonably be questioned.” § 455(a). A judge abuses his discretion in denying
a motion under § 455(a) if a reasonable person who is cognizant of the relevant



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                                  No. 19-40483

circumstances would harbor legitimate doubts about the judge’s impartiality.
Andrade, 338 F.3d at 454.
      Section 455(b)(1) requires a judge to recuse himself where he “has a
personal bias or prejudice concerning a party, or personal knowledge of
disputed evidentiary facts concerning the proceeding.” § 455(b)(1). Generally,
to warrant recusal under § 455(b)(1), the judge’s “bias or prejudice” or “personal
knowledge of disputed evidentiary facts” must stem from an extrajudicial
source. See Andrade, 338 F.3d at 455; Conkling v. Turner, 138 F.3d 577, 592
(5th Cir. 1998).     Recusal under § 455(a) likewise is generally limited to
circumstances that arise from an extrajudicial source. See Liteky v. United
States, 510 U.S. 540, 554 (1994); Andrade, 338 F.3d at 455.
      While the presence or absence of an extrajudicial source is a significant
factor, an extrajudicial source alone is neither a necessary nor sufficient
condition for recusal.    Liteky, 510 U.S. at 554-55.      The rule concerning
extrajudicial sources “more or less divides events occurring or opinions
expressed in the course of judicial proceedings from those that take place
outside of the litigation context and holds that the former rarely require
recusal.” Andrade, 338 F.3d at 455 (footnote omitted) (citing Liteky, 510 U.S.
at 555).   “Non-extrajudicial facts ‘do not constitute a basis for a bias or
partiality motion unless they display a deep-seated favoritism or antagonism
that would make fair judgment impossible.’”        Tejero v. Portfolio Recovery
Assocs., 955 F.3d 453, 463 (5th Cir. 2020) (quoting Liteky, 510 U.S. at 555).
      Lechuga contends that Judge Crane’s personal briefings from federal
marshals during the investigation were extrajudicial in nature. According to
Lechuga, such information qualified as “personal knowledge of disputed
evidentiary facts” under § 455(b)(1) and presented a basis for at least
reasonably questioning Judge Crane’s impartiality for purposes of § 455(a).



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      We conclude that Judge Crane’s personal briefings were not
extrajudicial.   Those briefings and the information disclosed therein are
comparable to the information and ex parte meetings in United States v.
Phillips, 664 F.2d 971, 1000-04 (5th Cir. Unit B Dec. 28, 1981), superseded by
rule on other grounds as recognized in United States v. Huntress, 956 F.2d
1309, 1314-17 (5th Cir. 1992), that were determined to be not extrajudicial. As
in Phillips, Judge Crane’s personal briefings were for a proper purpose and
involved a threat to kill the judge. See Phillips, 664 F.2d at 1001, 1003-04.
Additionally, Judge Crane was not an active participant in the investigation of
the threat, as he merely received briefings on the investigation. See id.
      Judge Crane also indicated in denying the motion to recuse that the two
or three personal briefings he received were limited in detail and that the
evidence later presented in court regarding the purported threat covered and
exceeded the information provided in his personal briefings. Although Judge
Crane’s personal briefings included disclosure of Lechuga’s polygraph results,
Judge Crane did not consider the polygraph and granted the defense’s motion
to exclude the polygraph information.
      Having determined that no extrajudicial source was involved, we turn to
whether there was “deep-seated favoritism or antagonism that would make
fair judgment impossible.” Liteky, 510 U.S. at 555. Judge Crane’s behavior,
comments, and rulings in this case do not meet that standard. See id. The fact
that Judge Crane’s personal safety was the subject of Lechuga’s hoax also does
not mandate recusal. See Phillips, 664 F.2d at 1001, 1004. A reasonable
person who is cognizant of the relevant circumstances would not harbor
legitimate doubts about Judge Crane’s impartiality. See Andrade, 338 F.3d at
454. The denial of Lechuga’s motion to recuse was not an abuse of discretion.
See id.



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       Lechuga next challenges the denial of credit for acceptance of
responsibility under § 3E1.1. We apply a standard of review that is even more
deferential than clear error. United States v. Puckett, 505 F.3d 377, 387 (5th
Cir. 2007). The testimony of FBI Agent Joshua Swims adequately supported
the district court’s finding that the threat was a hoax for which Lechuga was
responsible. Because Lechuga failed to withdraw from criminal conduct, the
district court did not err in denying credit for acceptance of responsibility. See
id.
       In his final claim of error, Lechuga argues that the Government breached
the plea agreement by advocating against credit for acceptance of
responsibility and refusing to file a § 5K1.1 motion and that the Government
breached a cooperation agreement by using his statements about the threat
information to increase his guidelines range. Because Lechuga did not raise
these arguments in the district court, we review them only for plain error. See
United States v. Cluff, 857 F.3d 292, 297 (5th Cir. 2017); United States v.
Barnes, 730 F.3d 456, 457 (5th Cir. 2013).
       The Government’s obligation under the plea agreement to recommend
acceptance-of-responsibility credit was conditioned on Lechuga “clearly
demonstrat[ing] acceptance of responsibility.” Lechuga failed to satisfy that
condition, so the Government did not breach the plea agreement by not
recommending the credit. See Cluff, 857 F.3d at 299-300.
       The Government also did not breach the plea agreement by refusing to
file a § 5K1.1 motion, as the plea agreement does not contain any terms
obligating the Government to file a § 5K1.1 motion. See United States v. Long,
722 F.3d 257, 262-63 (5th Cir. 2013). While Lechuga additionally contends
that the Government’s refusal was unconstitutional, he does not identify any
constitutionally suspect reason for the Government’s § 5K1.1 decision. See



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Wade v. United States, 504 U.S. 181, 186-87 (1992); United States v. Urbani,
967 F.2d 106, 109 (5th Cir. 1992).        Thus, he has not shown that the
Government relied on an unconstitutional motive. See Wade, 504 U.S. at 186-
87; Urbani, 967 F.2d at 109. Lechuga’s request to remand the case so that he
can attempt to seek out additional information relating to the plea agreement
is denied. See McIntosh v. Partridge, 540 F.3d 315, 327 (5th Cir. 2008).
      Lastly, Lechuga’s plea agreement contained no mention of a proffer or
cooperation agreement, and the record does not contain any such agreement.
Lechuga has the burden of proving that the underlying facts establish a
breach. See United States v. Gonzalez, 309 F.3d 882, 886 (5th Cir. 2002). He
has not shown that his statements regarding the hoax were protected by the
terms of a proffer or cooperation agreement.
      AFFIRMED.




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