                            NOT FOR PUBLICATION

                     UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                               AUG 02 2010

                                                                            MOLLY C. DWYER, CLERK
                                                                             U.S. COURT OF APPEALS

UNITED STATES OF AMERICA,                         No. 09-50656

              Plaintiff - Appellee,               D.C. No. 2:09-cr-00739-JSL-1

  v.
                                                  MEMORANDUM*
MICHAEL R. LEVY,

              Defendant - Appellant.


                    Appeal from the United States District Court
                        for the Central District of California
                     J. Spencer Letts, District Judge, Presiding

                        Argued and Submitted July 12, 2010
                               Pasadena, California

Before: FARRIS, HALL, and SILVERMAN, Circuit Judges.

       Michael R. Levy appeals from a 36-month sentence imposed after he waived

indictment and pled guilty to the sole count of the information—subscribing to a

false tax return in violation of 26 U.S.C. § 7206(1)—based on his underreporting

of gross receipts from his fine art gallery by a total of $3,101,247 for tax years



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
2003 through 2007. Pursuant to the plea agreement, Levy waived his right to

appeal any sentence imposed by the district court, including any order of restitution

and the manner in which the sentence was determined, so long as the sentence was

within the applicable statutory maximum and constitutional. He nevertheless

appeals, contending that his due process rights were violated because the

sentencing judge was biased against him, failed to address the sentencing factors in

18 U.S.C. § 3553, did not properly apply the Sentencing Guidelines, relieved the

government of its burden of proof as to tax loss, and failed to explain why it

imposed the statutory maximum 36-month sentence.

      The district court had jurisdiction pursuant to 18 U.S.C. § 3231. We have

jurisdiction pursuant to 28 U.S.C. § 1291.1 We affirm.

      Levy’s claim of judicial bias is based primarily on an ex parte contact Judge

Letts allegedly had with the Assistant United States Attorney (“AUSA”) on March

      1
         Upon entry of the amended judgment on December 21, 2009, Levy was
ordered to pay restitution in an amount to be determined at a later hearing. No
specific amount of restitution was ordered at the hearing on March 11, 2010, which
concluded with Judge Letts’s self-recusal, or at any subsequent hearing after the
matter was reassigned. This failure to specify an amount of restitution does not
affect our jurisdiction, see Flanagan v. United States, 465 U.S. 259, 263 (1984),
and 18 U.S.C. § 3664(o), but it does raise the question whether we must remand
for further proceedings to determine the proper amount of restitution. At oral
argument before this court, the government conceded that Levy has paid the
amount of restitution to which the parties stipulated, and no further proceedings are
necessary. Thus, we consider the matter of restitution to be finally resolved.

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9, 2010, two days before a hearing on the parties’ proposed stipulation regarding

restitution, as reported by the AUSA to defense counsel. Although he never raised

any claim of judicial bias or moved for recusal in the proceedings below, Levy

further contends that certain comments Judge Letts made at sentencing on

December 14, 2009, and during the restitution hearing on March 11, 2010,

demonstrate bias against him.

      We have recognized “‘a presumption of honesty and integrity in those

serving as adjudicators.” Larson v. Palmateer, 515 F.3d 1057, 1067 (9th Cir.

2008) (quoting Withrow v. Larkin, 421 U.S. 35, 47 (1975)). Only in the rarest of

cases does a judge’s conduct during the course of the proceedings constitute a basis

for recusal. United States v. Holland, 519 F.3d 909, 914 (9th Cir. 2008). Claims

of judicial bias that are not raised in the district court are reviewed under the “plain

error” standard. United States v. Bosch, 951 F.2d 1546, 1548 (9th Cir. 1991).

Under this standard, reversal is an exceptional remedy which will be invoked

“‘only when it appears necessary to prevent a miscarriage of justice or to preserve

the integrity and reputation of the judicial process.’” Id. (quoting United States v.

Bustillo, 789 F.2d 1364, 1367 (9th Cir. 1986)). After careful review of the record,

we conclude that Levy has not made a showing of judicial bias that would require

us to vacate his sentence.


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      The alleged ex parte telephone conversation, if it occurred as reported, was

improper. See ABA Model Code of Jud. Conduct R. 2.9 (2007); U.S. Ct. App. 9th

Cir. Jud. Miscon. R. 3(h)(1)(C) (cognizable misconduct includes “having improper

discussions with parties or counsel for one side in a case”). But the alleged ex

parte contact occurred three months after Judge Letts ordered imposition of the

statutory maximum sentence, and could not have affected his decision on that

issue. Moreover, the statements Judge Letts allegedly made to the AUSA—most

of which pertained to the procedures for determining an appropriate amount of

restitution—do not reflect such a high degree of favoritism to the government or

antagonism to the defendant that would make fair judgment impossible. See

Liteky v. United States, 510 U.S. 540, 555 (1994).

      Although he admits he did not object to any of Judge Letts’s comments at

sentencing, Levy contends that it was only in retrospect, as a result of the

emotional exchange that occurred on March 11, 2010, when defense counsel

confronted Judge Letts about the alleged ex parte conversation with the AUSA,

that the sentencing judge’s bias became manifest. We reject this claim. When read

in context, Judge Letts’s comments during the sentencing hearing were for the

most part expressions of dismay directed at the prosecutor for undercharging the

case—which involved the filing of five separate tax returns understating Levy’s


                                         -4-
gross receipts over a five-year period by a total of over $3 million (or by

approximately 72%), and multiple sophisticated financial maneuvers to “structure”

his bank transactions, apparently to conceal the proceeds from sales of numerous

pieces of fine art. Judge Letts’s critical comments about both the Guidelines range

and the stipulated amount of restitution were focused on his disagreement with

both parties’ positions on the law and their failure sufficiently to document their

calculations of tax loss. Such comments do not overcome the presumption of

honesty and integrity in those serving as adjudicators, Larson, 515 F.3d at 1067,

nor do they require recusal. See United States v. Wilkerson, 208 F.3d 794, 797-99

(9th Cir. 2000) (district court’s commentary on legal issues, and statements of

displeasure at prosecution’s failure to bring additional charges supported by

defendant’s own admissions, do not establish bias requiring recusal). To the extent

any of Judge Letts’s comments suggested antagonism towards Levy, they were

merely his opinions that Levy’s admitted criminal conduct was profoundly

dishonest and far more serious than the charging document would suggest; they did

not show any wrongful or inappropriate predisposition against Levy or in favor of

the government. Id.; see also Liteky, 510 U.S. at 550-51, 555.

      Levy’s remaining claims of sentencing error are barred by the appeal waiver.

We have no doubt that Levy’s waiver of his right to appeal the sentence imposed


                                         -5-
was knowing and voluntary when made, and thus valid and enforceable, see United

States v. Bibler, 495 F.3d 621, 623-24 (9th Cir. 2007), and that the claimed

procedural errors fall within the scope of the waiver of his right to appeal “the

manner in which the sentence was determined.” See United States v. Vences, 169

F.3d 611, 612-13 (9th Cir. 1999) (district court’s failure to state reasons as required

by 18 U.S.C. § 3553 did not render sentence “illegal,” and appeal waiver barred

consideration of that claim of error).

      AFFIRMED.




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