                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 15-3442
                        ___________________________

                             United States of America

                       lllllllllllllllllllll Plaintiff - Appellee

                                          v.

                            Marion Anthony Norwood

                      lllllllllllllllllllll Defendant - Appellant
                                      ____________

                     Appeal from United States District Court
                for the Western District of Missouri - Kansas City
                                 ____________

                             Submitted: April 6, 2017
                              Filed: April 17, 2017
                                   [Published]
                                 ____________

Before LOKEN, BOWMAN, and MURPHY, Circuit Judges.
                          ____________

PER CURIAM.

       Marion Anthony Norwood appeals the judgment of the district court1 entered
after a jury found him guilty of conspiracy to commit bank fraud. See 18 U.S.C.


      1
        The Honorable Beth Phillips, United States District Judge for the Western
District of Missouri.
§§ 1344, 1349. Norwood’s counsel filed a brief pursuant to Anders v. California, 386
U.S. 738 (1967), challenging the sufficiency of the evidence, the admission of certain
evidence, and certain sentence enhancements. In a pro se brief, Norwood challenges
the ruling of District Judge Phillips at sentencing that she need not recuse; he also
challenges sentence enhancements and argues that he received ineffective assistance
of counsel. For the reasons that follow, we affirm.

        The indictment charged that Norwood conspired with others to commit bank
fraud from December 10, 2012 to about January 4, 2013. The evidence at a three-day
trial showed that United States Postal Service investigators uncovered a scheme in
which groups from Atlanta, Georgia, traveled throughout the United States, stole
business mail from industrial business parks, and used the stolen mail to create
counterfeit payroll checks. Norwood’s conspiracy involved transactions that occurred
primarily in the Kansas City area. According to the Postal Inspector, conspirators
known as “handlers” recruited homeless individuals who had state-issued
identification cards and were willing to cash counterfeit checks for a small fee. The
handlers provided the recruits with clothing, transportation, and instructions on what
to do upon entering the bank and leaving with the cash. The handlers exchanged text
messages with conspirators creating counterfeit checks and then picked up the
counterfeit checks on the way to FDIC-insured banks. The check makers ran the
crew and divided the proceeds. Law enforcement officials and cooperating witnesses
confirmed the Postal Inspector’s description of the scheme and Norwood’s
participation as a check maker. The jury found him guilty. Upon careful review, we
conclude that the evidence was sufficient to sustain the jury’s verdict, and that
evidence about past events was properly admitted under Federal Rule of Evidence
404(b). See United States v. Maxwell, 778 F.3d 719, 725 (8th Cir.) (sufficiency),
cert. denied, 135 S. Ct. 2390, 135 S. Ct. 2827, 136 S. Ct. 176, 136 S. Ct. 319 (2015);
United States v. Beckman, 787 F.3d 466, 477- 78 (8th Cir.) (admission of Rule
404(b) evidence), cert. denied, 136 S. Ct. 160 (2015).



                                         -2-
       At the beginning of the multi-day sentencing hearing, Judge Phillips noted that,
according to the presentence report, the conspiracy for which Norwood was convicted
“is part of a nationwide counterfeit check ring out of Atlanta, Georgia, that has been
under investigation by the United States Postal Inspection Service since 2010” --
before Judge Phillips left her position as United States Attorney for the Western
District of Missouri on March 22, 2012. Judge Phillips asked the government for
clarification as to when investigation of the conspiracy involving Norwood had
begun, so that she could determine whether she had a conflict of interest. Assistant
United States Attorney John Cowles responded that, while the first arrests of persons
recruiting homeless persons in Kansas City occurred in December 2011, the
government “had literally no information about Mr. Norwood” prior to January 2013.
Norwood was not indicted until November 2013, and the counterfeit checks used in
prosecuting his conspiracy were collected no earlier than September 2012, although
evidence gathered later showed that Norwood’s involvement pre-dated the acts for
which he was charged. Judge Phillips determined that the investigation and
prosecution of Norwood’s conspiracy offense occurred after she was U.S. Attorney,
so she had no conflict of interest and recusal was not required. We agree.

      The federal statute governing judicial disqualification provides that a judge
“shall” disqualify if she “has served in governmental employment and in such
capacity participated as counsel . . . or expressed an opinion concerning the merits
of the particular case in controversy.” 28 U.S.C. § 455(b)(3) (emphasis added).
Before Congress adopted this language in 1974, the statute provided that a judge shall
disqualify “in any case in which [she] . . . has been of counsel . . . .” 28 U.S.C. § 455
(1970). As the U.S. Attorney serves as counsel for the United States in all
prosecutions brought in her District, the term “of counsel” was construed as requiring
a federal judge to recuse in all cases where the prosecution was brought while she
was in office. Barry v. United States, 528 F.2d 1094, 1099 n.14 (7th Cir. 1976); see
Kendrick v. Carlson, 995 F.2d 1440, 1444 (8th Cir. 1993). However, the word “case”
was given “a rather strict meaning,” namely, that “a ‘case’ begins with the first formal

                                          -3-
prosecutorial proceeding (arrest, complaint or indictment) which is designed to bring
a named alleged offender before the court.” Barry, 528 F.2d at 1098 (quotation
omitted); see In re Grand Jury Investigation, 486 F.2d 1013, 1015 (3d Cir. 1973).
Though the 1974 revision changed the word “case” to “proceeding,” its legislative
history reflected no intent to change the restrictive case requirement of the prior
statute. Barry, 528 F.2d at 1098-99 & n.9.

      The 1974 revision did, however, replace the reference to “of counsel,” which
suggested a per se rule of disqualification for U.S. Attorneys, with the more limited
standard in § 455(b)(3) -- a judge must recuse if she served in government employ
“and in such capacity participated as counsel.” Under this standard, a party seeking
recusal must show that the judge while serving as U.S. Attorney actually participated
as counsel for the government in investigating or prosecuting the specific conspiracy
underlying the present indictment. See United States v. Di Pasquale, 864 F.2d 271,
278-79 (3d Cir. 1988); United States v. Gipson, 835 F.2d 1323, 1326 (10th Cir.
1988). Norwood made no such belated showing. Nor did he offer evidence tending
to show that a reasonable person with knowledge of the relevant circumstances might
reasonably question Judge Phillips’s impartiality, requiring recusal under 28 U.S.C.
§ 455(a). Norwood’s further suggestion that due process required Judge Phillips to
recuse sua sponte is without merit. “[U]nder the Due Process Clause there is an
impermissible risk of actual bias when a judge earlier had significant, personal
involvement as a prosecutor in a critical decision regarding the defendant’s case.”
Williams v. Pennsylvania, 136 S. Ct. 1899, 1905-06 (2016). Judge Phillips while
U.S. Attorney had no significant personal involvement in a critical decision regarding
Norwood’s subsequent prosecution for mail fraud conspiracy.

      At sentencing, following the presentation of evidence in support of the
recommended Guidelines calculations, the district court sustained Norwood’s
objections to enhancements involving the number of victims and the amount of
intended losses (assessing 49 victims rather than 50 or more, and finding an intended

                                         -4-
loss of $389,172.89 rather than $50 million or more). The court overruled his
objections to enhancements for the use of sophisticated means, the unauthorized use
of identification, and his leadership role. We conclude that the district court properly
applied the Guidelines and made no clearly erroneous factual finding. See United
States v. Jenkins, 578 F.3d 745, 748-49 (8th Cir. 2009). The resulting advisory
guidelines range was 140-175 months in prison. The district court imposed a 144-
month sentence and ordered restitution of $275,747.34. We find nothing in the
record to indicate that sentence is substantively unreasonable.

       Finally, as in most cases, Norwood’s pro se ineffective-assistance claims are
best left for proceedings under 28 U.S.C. § 2255. See United States v. Davies, 583
F.3d 1081, 1091 (8th Cir. 2009). Following review under Penson v. Ohio, 488 U.S.
75, 80 (1988), we find no other nonfrivolous issue for direct appeal. Accordingly, the
judgment of the district court is affirmed. We grant counsel’s motion to withdraw.
                        ______________________________




                                          -5-
