                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                     UNITED STATES COURT OF APPEALSFebruary 12, 2014
                                                                Elisabeth A. Shumaker
                                  TENTH CIRCUIT                     Clerk of Court


    UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

    v.                                                   No. 13-3120
                                                         (D. Kansas)
    CHADD K. JOHNSON,                         (D.C. No. 6:12-CR-10155-MLB-6)

                Defendant - Appellant.

                             ORDER AND JUDGMENT *



Before HARTZ, BALDOCK, and BACHARACH, Circuit Judges. **




         Mr. Chadd Johnson was convicted of traveling in interstate commerce to

promote an unlawful activity and possessing a firearm after a felony conviction.

1 R. 68; see 18 U.S.C. §§ 922(g)(1), 1952(a)(3) (2006). With the conviction, the

federal sentencing guidelines called for a sentence of 70-87 months. 2 R. 35. The



*
      This order and judgment does not constitute binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. But the order and
judgment may be cited for its persuasive value consistent with Fed. R. App. P. 32.1
and 10th Cir. R. 32.1.
**
     After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. 34.1.9. The case is therefore ordered
submitted without oral argument.
district court varied upward, imposing consecutive terms of 87 months and 60

months based on Mr. Johnson’s extensive and escalating criminal history, his lack

of work history, and his failure to support five “illegitimate children.” 1 R. 67; 2

R. 42; 3 R. 16. Mr. Johnson contends that the district court erred by referring to

the illegitimacy of the children, failing to adequately explain the sentence,

declining to recuse sua sponte, and imposing an overly harsh sentence. We affirm.

I.    Reference to Illegitimacy of the Children

      The presentence report stated that Mr. Johnson had never married, but owed

more than $40,000 in child support for five children. 2 R. 32; see id. at 35 (stating

that Mr. Johnson reported an arrearage of roughly $40,000 in child support). Mr.

Johnson did not object to the presentence report, and the district court considered

an upward variance in part because of the failure to support the five children.

1 R. 67. In alerting the parties to the possibility of an upward variance, the court

used the phrase “illegitimate children.” Id. Focusing on the word “illegitimate,”

Mr. Johnson contends that the district court improperly showed contempt for men

who father children out of wedlock.

      Mr. Johnson failed to present the district judge with this argument; thus, our

review is limited: We can reverse only if the district court committed plain error.

See United States v. Romero, 491 F.3d 1173, 1177-78 (10th Cir. 2007).




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      The reference to “illegitimate children” did not constitute plain error, for

the judge did not refer to the “illegitimacy” of the children in a vacuum: He made

the reference when commenting on Mr. Johnson’s failure to pay more than

$40,000 in child support. Though the judge referred to the children as

“illegitimate,” he did not appear to be focusing on whether the parents were

married; instead, the judge appeared to be focusing on Mr. Johnson’s failure to

support his children. In this context, the judge did not commit plain error by

identifying the children as “illegitimate.”

II.   Explanation of the Sentence

      Mr. Johnson challenges not only the reference to “illegitimate children,” but

also the adequacy of the judge’s explanation for the sentence. We reject this

challenge.

      A sentence is considered “procedurally reasonable” only if the judge

adequately explained the sentence. United States v. Huckins, 529 F.3d 1312, 1317

(10th Cir. 2008). Because Mr. Johnson did not raise this issue in the district court,

we again confine our review to the plain-error standard. See United States v.

Cereceres-Zavala, 499 F.3d 1211, 1216-17 (10th Cir. 2007).

      Through a letter to counsel and remarks at the sentencing hearing, the judge

explained that he was varying from the guidelines because:

      !      the presentence report showed a continuous history of criminal
             behavior from age 14 to age 33,

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       !     the adjudications in state court failed to deter Mr. Johnson from
             committing crimes,

       !     he was unemployed most of his adult life,

       !     he did not support his children, as ordered,

       !     his crimes had become more serious, and

       !     a guideline sentence would not provide deterrence or protect the
             public.

1 R. 67; 2 R. 42. Mr. Johnson concedes that the district court could properly vary

upward based on his criminal history, poor employment record, and failure to

support the five children. Appellant’s Br. at 6 (Aug. 1, 2013). With this

concession, we cannot regard the judge’s explanation as plainly erroneous. See

United States v. Cook, 348 F. App’x 374, 375-76 (10th Cir. 2009) (stating that the

judge adequately explained an upward variance by comments in a presentence

letter to the parties and remarks at the sentencing hearing).

III.   The District Judge’s Impartiality

       Mr. Johnson complains of the judge’s failure to recuse sua sponte. Because

Mr. Johnson did not raise this issue in the district court, we again confine our

review to the plain-error standard. See United States v. Mendoza, 468 F.3d 1256,




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1262 (10th Cir. 2006). 1 Applying this standard, we reject Mr. Johnson’s

argument.

      In the appeal, Mr. Johnson argues that the judge should have recused

because his explanation of the sentence reflected bias. See 28 U.S.C. § 455(a)

(2006). This argument is based on: (1) the judge’s reference to the children as

“illegitimate,” and (2) the number of different mothers they have. Viewing these

references as evidence of moral condemnation, Mr. Johnson regards the trial judge

as biased.

      But the judge had no duty to recuse based on the possibility that the remarks

could create the perception of bias. As discussed above, a reasonable observer

could view the judge’s comments as critical of Mr. Johnson’s failure to support his

children, rather than as criticism for his having children outside of marriage.

Thus, the judge did not commit plain error by declining to recuse sua sponte. See

United States v. Nickl, 427 F.3d 1286, 1299 (10th Cir. 2005) (holding that the

district judge did not commit plain error by declining to recuse even though his


1
       In similar cases, where the appellant has failed to timely seek recusal in
district court, we have sometimes treated the issue as waived and declined any
review. United States v. Stenzel, 49 F.3d 658, 661 (10th Cir. 1995); Koch v. Koch
Indus., Inc., 203 F.3d 1202, 1239 (10th Cir. 2000). For the sake of argument, we
assume that Mr. Johnson did not waive the issue; thus, we will entertain his argument
and apply the plain-error standard. See United States v. Lang, 364 F.3d 1210, 1216
(10th Cir. 2004) (declining to resolve the intra-circuit conflict and holding that an
appellate argument involving the district judge’s failure to recuse sua sponte would
fail even under the plain-error standard), vacated on other grounds, Lang v. United
States, 543 U.S. 1108 (2005) (mem.).

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remarks about the defendant’s homosexuality were “arguably insensitive or

inappropriate”).

IV.   Harshness of the Sentence

      Mr. Johnson also challenges the length of the sentence, which totaled 147

months. This challenge is rejected.

      We review the length of the sentence only for an abuse of discretion. See

United States v. Steele, 603 F.3d 803, 808 (10th Cir. 2010). In determining

whether the court acted within its discretion, we examine the extent of the

variance from the guidelines and the strength of the justification. See Gall v.

United States, 552 U.S. 38, 50 (2007).

      The guidelines called for a sentence up to 87 months, and the judge imposed

prison terms totaling 147 months. But the length of the sentence fell within the

district judge’s discretion. As noted above, the judge relied on the failure to

provide financial support for his children, the criminal history, and the lack of

steady employment. 1 R. 67; 2 R. at 42. These considerations were appropriate,

as Mr. Johnson admits. Appellant’s Br. at 6 (Aug. 1, 2013); see United States v.

Rosas-Caraveo, 308 F. App’x 267, 270-71 (10th Cir. 2009) (failure to pay child

support is a valid sentencing consideration under 18 U.S.C. § 3553); United States

v. Baker, No. 12-3329, __ F. App’x __, 2013 WL 5651279, at *3 (10th Cir. Oct.

17, 2013) (no abuse of discretion when the district court varies upward in light of

the criminal history); United States v. Cook, 348 F. App’x 374, 375 (10th Cir.

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2009) (same); United States v. Green, 691 F.3d 960, 966 (10th Cir. 2012)

(sporadic work history supported an upward variance). Thus, the trial judge had

the discretion to exceed the sentencing range as he did.

V.    Summary

      We conclude that the trial court:

      !      did not commit plain error by referring to Mr. Johnson’s children as
             “illegitimate,” failing to adequately explain the sentence, or declining
             to recuse sua sponte, and

      !      did not abuse its discretion by imposing an overly severe sentence.

      Accordingly, we affirm.

                                          Entered for the Court



                                          Robert E. Bacharach
                                          Circuit Judge




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