     Case: 16-50959      Document: 00514016169         Page: 1    Date Filed: 06/01/2017




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

                                    No. 16-50959                                FILED
                                  Summary Calendar                           June 1, 2017
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

KELLY DAVID SHAMBAUGH,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 7:15-CR-290-2


Before JOLLY, SMITH, and GRAVES, Circuit Judges.
PER CURIAM: *
       Without the benefit of a plea agreement, Kelly David Shambaugh
pleaded guilty to three counts of an indictment charging him with one count of
distribution of child pornography in violation of 18 U.S.C. § 2252(a)(2) (count
three), one count of conspiracy to commit cyber stalking in violation of 18
U.S.C. §§ 371 and 2261A(2)(B) (count five), and one count of cyber stalking
(count six) in violation of § 2261A(2)(B).           He was sentenced to a within-


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-50959

guidelines sentence of 180 months on count three, 45 months on count five, and
45 months on count six, all sentences to run consecutively.           Shambaugh
appeals the district court’s judgment, including the district court’s denial of his
motion to withdraw his guilty plea and motion to recuse the district court
judge. His appeal raises the following issues.
      Application of the U.S.S.G. § 2G2.2(c)(1) Cross Reference
      On appeal, Shambaugh argues that the district court’s application of the
§ 2G2.2(c)(1) cross reference to § 2G2.1—which increased his total offense
level—violated the Sixth Amendment and the Fifth Amendment’s due process
clause.   We review a district court’s interpretation or application of the
Sentencing Guidelines de novo. United States v. Cisneros-Gutierrez, 517 F.3d
751, 764 (5th Cir. 2008). When, as here, we are “faced with a preserved
constitutional challenge to the Guidelines’ application, our review is de novo.”
United States v. Preciado-Delacruz, 801 F.3d 508, 511 (5th Cir. 2015), cert.
denied, 136 S. Ct. 2007 (2016).
      In the sentencing context, “Fifth and Sixth Amendment challenges are
foreclosed by our precedent . . . because we have held that courts can engage
in judicial factfinding where the defendant’s sentence ultimately falls within
the statutory maximum term.” United States v. Hebert, 813 F.3d 551, 564 (5th
Cir. 2015) (citing United States v. Mares, 402 F.3d 511, 519 (5th Cir. 2005)),
cert. denied, 137 S. Ct. 37 (2016); see United States v. Hernandez, 633 F.3d 370,
374 (5th Cir. 2011). In this case, Shambaugh’s 15-year sentence for count three
was within the statutory maximum for a violation of § 2252(a)(2).              See
§ 2252(b)(1).   Accordingly, Shambaugh’s sentence for count three did not
implicate constitutional concerns. See Hebert, 813 F.3d at 564; United States
v. Hinojosa, 749 F.3d 407, 412-13 (5th Cir. 2014).




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      Motion to Withdraw Guilty Plea
      Shambaugh next challenges the district court’s denial of his motion to
withdraw his guilty plea. A defendant may withdraw his guilty plea before
sentencing if he can establish a “fair and just reason” for the withdrawal. FED.
R. CRIM. P. 11(d)(2). We review a district court’s denial of a motion to withdraw
a guilty plea for abuse of discretion. See United States v. Adam, 296 F.3d 327,
332 (5th Cir. 2002).
      The district court denied Shambaugh’s motion based on its consideration
of certain of the factors set forth in United States v. Carr, 740 F.2d 339, 343-44
(5th Cir. 1984). The record supports the district court’s denial. The record
establishes that Shambaugh’s pleas were knowing and voluntary, in view of
the fact that, among other things, Shambaugh acknowledged the maximum
sentences for his offenses of conviction at his arraignment. See United States
v. Pearson, 910 F.2d 221, 222 (5th Cir. 1990). Moreover, after entering his
pleas, Shambaugh never asserted his innocence for his offenses of conviction.
See United States v. Herrod, 595 F. App’x 402, 410 (5th Cir. 2015).
Furthermore, given that Shambaugh filed his motion approximately 15 weeks
after his guilty plea, the district court’s finding that Shambaugh’s motion was
not timely filed is not error. See United States v. Thomas, 13 F.3d 151, 153
(5th Cir. 1994); United States v. Rinard, 956 F.2d 85, 88-89 (5th Cir. 1992);
United States v. Hurtado, 846 F.2d 995, 997 (5th Cir. 1988); Carr, 740 F.2d at
345. Finally, Shambaugh admits that he received close assistance of counsel.
Accordingly, Shambaugh has failed to demonstrate that the district court
abused its discretion in denying his motion to withdraw his guilty plea.
      Motion to Recuse
      Prior to sentencing, Shambaugh filed a motion to recuse the sentencing
court judge based on a finding that the judge made during the sentencing



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hearing of Shambaugh’s codefendant. A judge “shall disqualify himself in any
proceeding in which his impartiality might reasonably be questioned” or
“[w]here he has a personal bias or prejudice concerning a party, or personal
knowledge of disputed evidentiary facts concerning the proceeding.” 28 U.S.C.
§ 455(a), (b)(1).
      In this case, because the sentencing court judge made the finding at issue
during the sentencing of Shambaugh’s codefendant, any opinion formed
concerning such a finding was not derived from an extrajudicial source. Liteky
v. United States, 510 U.S. 540, 555 (5th Cir. 1994). Furthermore, Shambaugh
does not argue that the district court exhibited “a deep-seated favoritism or
antagonism that would make fair judgment impossible.” Id. For these reasons,
Shambaugh has failed to establish that the district court abused its discretion
in denying his motion to recuse. United States v. Mizell, 88 F.3d 288, 299 (5th
Cir. 1996).
      Vulnerable Victim Enhancement
      Finally, Shambaugh’s argument that the district court erred by applying
a “vulnerable victim” enhancement pursuant to U.S.S.G. § 3A1.1(b)(1) is
foreclosed by circuit precedent. United States v. Jenkins, 712 F.3d 209, 212-14
(5th Cir. 2013).
      Accordingly, the district court’s judgment is AFFIRMED.




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