                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 05-5118



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

           versus


RUSSELL EARL MILLER,

                                              Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad, Jr.,
District Judge. (CR-04-256)


Argued:   February 1, 2007                  Decided:   March 8, 2007


Before WIDENER, TRAXLER, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


ARGUED: Edward Theodore Hinson, Jr., JAMES, MCELROY & DIEHL, P.A.,
Charlotte, North Carolina, for Appellant.        Matthew Theodore
Martens, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North
Carolina, for Appellee. ON BRIEF: Gretchen C. F. Shappert, United
States Attorney, Kimlani Murray, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

     This is an appeal from a guilty plea and resulting 135-month

sentence for two child pornography-related offenses.             Russell Earl

Miller (“Appellant”) argues that District Court Judge Robert Conrad

erred both by not recusing himself from the sentencing phase of

this matter and by imposing a sentencing enhancement based on a

contested fact.      For the reasons that follow, we affirm.



                                    I.

     In   a   case   that   eventually   came   before   Judge    Conrad   for

sentencing, Appellant pleaded guilty to a bill of information

charging him with possession and distribution of child pornography

in violation of 18 U.S.C. §§ 2252(a)(2) and 2252A(a)(5)(B).                The

charges resulted from an FBI investigation that discovered numerous

images of child pornography in Appellant’s possession.

     Because Appellant contends that Judge Conrad’s tenure as a

United States Attorney, a post he held in the Western District of

North Carolina from 2001 to 2004, calls his impartiality into

question, we recount the relevant dates of this proceeding.                The

FBI began investigating Appellant on May 10, 2004 and the U.S.

Attorney’s office opened a corresponding file on June 28, 2004.

Judge Conrad left the U.S. Attorney’s office on June 1, 2004 to

enter private practice. Appellant alleges no facts to suggest that




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Judge Conrad was aware of or had any involvement with this case

while serving as United States Attorney.

     On    September      23,    2004,   Assistant       United    States   Attorney

(“AUSA”) Brian Cromwell signed the two-count information against

Appellant.       The next day, Appellant pleaded guilty and signed a

plea agreement.      In the agreement, Appellant retained his right to

appeal errors at sentencing and stipulated that his offenses

involved    at    least    300    but    fewer    than    600     images    of   child

pornography for purposes of U.S.S.G. § 2G2.2 (2003) (consolidated

with U.S.S.G. § 2G2.2 and deleted 2005).

     Several months later, Cromwell left the U.S. Attorney’s Office

to join the same private law firm where Judge Conrad was then

practicing.        Appellant      does   not     contend    that    Cromwell     ever

discussed this case with Judge Conrad after leaving his position as

AUSA.    Judge Conrad received his commission as a federal district

court judge on June 2, 2005 and, sometime thereafter, was assigned

to hear Appellant’s case for sentencing. Appellant filed a motion,

which Judge Conrad denied, seeking his recusal.

     In preparation for sentencing, the Probation Office prepared

a pre-sentencing report (“PSR”) that indicated Appellant’s offense

involved either 4,270 or 4,720 images of child pornography (the PSR

contained both numbers in different places).1                   Appellant objected


     1
      This inconsistency is, at most, a scrivener’s error that is
of no substantive import because either figure satisfies the “600
or more images” threshold for application of the maximum five-level

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to that aspect of the PSR.     At Appellant’s sentencing hearing,

Judge Conrad asked the parties whether he should use the number of

images identified in the PSR to calculate Appellant’s sentence,

rather than the number of images stipulated to by the parties.

Appellant objected to use of the number of images in the PSR.    The

use of 4,720 images would have resulted in an offense level of 32

and a guidelines range of 121 to 151 months’ imprisonment.2      The

use of 300 to 600 images would have resulted in an offense level of

31 and a guidelines range of 108 to 135 months.

     Rather than making a specific finding on the number of images,

Judge Conrad sentenced Appellant to 135 months, stating that he

would have done so under a total offense level of either 31 or 32

(i.e., regardless of whether he used the 4,720 figure or the 300 to

600 range) because it was a reasonable sentence.   J.A. 102.    This

appeal followed.



                                II.

     Appellant challenges his sentence based on Judge Conrad’s

denial of his motion to recuse and the number of images Judge

Conrad used for sentencing purposes.   We consider each contention

in turn.




enhancement.   U.S.S.G. § 2G2.4(b)(5)(D) (2003).
     2
      Appellant was assigned a criminal history category of I.

                                 4
                                   A.

                                   1.

     Appellant’s recusal argument is predicated on two grounds.

Appellant first argues that Judge Conrad should have recused

himself under 28 U.S.C. § 455(a) because “his impartiality might

reasonably be questioned” based on his former position as United

States Attorney and later private practice with an AUSA who had

worked on Appellant’s case.     This argument fails.

     The need to recuse is measured by an objective standard that

“asks whether the judge’s impartiality might be questioned by a

reasonable, well-informed observer who assesses all the facts and

circumstances.”    United States v. DeTemple, 162 F.3d 279, 286 (4th

Cir. 1998) (internal quotation omitted).      A judge need not “recuse

himself because of unsupported, irrational, or highly tenuous

speculation.”     Id. at 287 (internal quotation omitted).         “[T]o

constitute grounds for disqualification, the probability that a

judge will decide a case on a basis other than the merits must be

more than trivial.”    Id. (internal quotation omitted).

     Appellant’s argument here relies on unsupported speculation

that Judge Conrad’s former position as United States Attorney and

his private association with an AUSA involved in Appellant’s

prosecution   calls   Judge   Conrad’s   impartiality   into   question.

Absent any allegation to suggest that Judge Conrad was even aware

of this case prior to taking the bench, however, we cannot conclude


                                   5
that    a   reasonable     observer    would   question    his   impartiality.

Appellant acknowledges that there is no indication that Judge

Conrad was involved in the prosecution, knew of it, received any

information about it, or formed an opinion regarding it.                 Under

such circumstances, the mere facts of Judge Conrad’s government

service and private association with an AUSA who worked on this

matter are insufficient to justify his recusal.

                                        2.

       Appellant next argues that Judge Conrad should have recused

himself under § 455(b)(3), which requires recusal

       [w]here [a judge] has served in governmental employment
       and in such capacity participated as counsel, adviser or
       material witness concerning the proceeding or expressed
       an opinion concerning the merits of the particular case
       in controversy[.]

28 U.S.C. § 455(b)(3).          Appellant contends that this provision

applies because Judge Conrad was a United States Attorney while the

FBI investigated Appellant.           This argument also lacks merit.

       Appellant presents no support for his expansive view that a

United States Attorney “participate[s] as counsel” to the FBI with

respect to every investigation it conducts, nor can we find any.

The    U.S.   Attorney’s    Office     and   the   FBI   are   organizationally

distinct, and we can perceive no basis in the relationship between

the two to warrant viewing the United States Attorney as “counsel,

adviser or material witness” in an investigation prior to the

arrival of the matter in his or her office.


                                         6
      The two cases on which Appellant relies do not compel a

different conclusion.      In both United States v. Arnpriester, 37

F.3d 466, 467 (9th Cir. 1994) and United States v. Amerine, 411

F.2d 1130, 1133-34 (6th Cir. 1969), the district judge should have

recused himself because he had been the United States Attorney

while the case was under either investigation or active prosecution

by his office.       The present case is easily distinguishable from

both; this matter was not referred to the U.S. Attorney’s office

until three weeks after Judge Conrad left for private practice.

      Accordingly, we find no error in Judge Conrad’s refusal to

recuse himself under § 455(b)(3).



                                   B.

      Miller next argues that, because the parties stipulated that

only 300 to 600 images should be considered at sentencing, Judge

Conrad erred by applying a five-level enhancement based on a

finding that the case involved 4,720 images of child pornography.

See   U.S.S.G.   §   2G2.4(b)(5)(D)       (2003)   (imposing   a   five-level

enhancement for “600 or more images”).             We note initially that

Appellant agreed that the district court was not bound by any of

the stipulations in the revised plea agreement.          J.A. 159.    Had the

district court applied the number of images agreed to by the

parties,   Appellant     only   would      have    received    a   four-level

enhancement.     See U.S.S.G. § 2G2.4(b)(5)(C) (2003) (imposing a


                                      7
four-level enhancement for “at least 300 images, but fewer than

600"). However, in light of the district court’s statement that it

would enter identical sentences regardless of whether it applied

the four- or five-level enhancement, any error in Judge Conrad’s

use of the higher number of images is harmless.

       Errors in sentencing are subject to harmless error review, and

will   be   vacated    only   if    the       error   affects   the   defendant’s

substantial rights.      United States v. Rodriguez, 433 F.3d 411, 416

(4th Cir. 2006).      The burden is on the government to establish that

an error is harmless.      Id.     Although not directly applicable, this

court has recognized that the use of alternative sentences renders

harmless both constitutional and statutory error under United

States v. Booker, 543 U.S. 220 (2005) where one sentence is

infected with error and the other is not.                 See United States v.

Shatley, 448 F.3d 264, 267 n.* (4th Cir. 2006) (collecting cases

dealing with alternative sentences in the Booker context).                  Given

that alternative sentences are sufficient to render Booker error

harmless and that Appellant does not otherwise challenge his

sentence, we conclude that any error in the district court’s

application of the § 2G2.4(b)(5)(D) enhancement is harmless based

on its indication that it would, in its discretion, impose an

identical sentence if it applied the § 2G2.4(b)(5)(C) enhancement.




                                          8
                                      III.

     Based    on   the   foregoing,    Appellant   Russell   Earl   Miller’s

sentence is

                                                                    AFFIRMED.




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