UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 97-4081

JOHNNIE AUSTIN JACKSON,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
James C. Fox, Chief District Judge.
(CR-96-11-F)

Submitted: August 29, 1997

Decided: October 1, 1997

Before WILKINS, LUTTIG, and WILLIAMS, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Thomas K. Maher, RUDOLF & MAHER, P.A., Chapel Hill, North
Carolina, for Appellant. Janice McKenzie Cole, United States Attor-
ney, Anne M. Hayes, Assistant United States Attorney, Thomas B.
Murphy, Assistant United States Attorney, Amy Melissa Guy, Third-
Year Law Student, Raleigh, North Carolina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

Johnnie Austin Jackson appeals from his convictions of possessing
a firearm from which the serial number had been removed, 18 U.S.C.
§§ 922(d), 924(a)(1)(B) (1994) (count one), and dealing in firearms
without a license, 18 U.S.C. §§ 922(a)(1)(A), 924(a)(1)(D) (1994)
(count two), for which he was sentenced to two sixty-month consecu-
tive sentences. Jackson claims that the district court abused its discre-
tion by rejecting his plea agreement and by denying his motion for
recusal. Jackson also claims that he was denied effective assistance
of counsel at sentencing. Finding these claims to be without merit, we
affirm.

Jackson entered into a plea agreement with the government in
which he agreed to plead guilty to count one of the indictment in
exchange for the dismissal of count two. The district court condition-
ally accepted the plea agreement, pending its review of the presen-
tence report (PSR). The PSR stated that Jackson had sold firearms
with obliterated serial numbers to James Braswell, a known drug
dealer. The PSR arrived at a base offense level of 12, reduced to 10
for acceptance of responsibility, with a resulting guideline range of 6
to 12 months imprisonment. After reviewing the PSR, the district
court requested that the probation officer investigate the factual back-
ground further--in particular, the extent of Jackson's dealings with
Braswell. The revised PSR detailed a long history of gun sales by
Jackson to Braswell. At Jackson's sentencing hearing, the district
court rejected the plea agreement, finding that"[Jackson] has done a
lot more than he's been charged with . . . [the] United States Attor-
ney's office failed to advise the court the full extent of [Jackson's]
involvement in his original presentence report," and referred to the
government's conduct as "outrageous."

Jackson subsequently moved for the district court judge's recusal,
claiming that the judge was "critical of [Jackson]" and "express[ed]

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an opinion as to the [Jackson's] guilt and the degree of his guilt, with-
out having heard any evidence in the case." In a written opinion, the
district court denied both motions.

Jackson pled guilty to count one, without benefit of a plea agree-
ment, and not guilty to count two. Jackson proceeded to trial before
a jury on count two. After the government produced evidence that
Jackson had supplied guns to Braswell, knowing that they would be
used in drug transactions, he decided to plead guilty to count two.
Based on the preparation of a third PSR, Jackson's base offense level
was increased to 36. Jackson's attorney failed to file timely objections
to the PSR. Although the guideline range was 188 to 235 months
imprisonment, the district court imposed a five-year sentence for each
count--the statutory maximum. Jackson appeals.

Jackson first claims that the district court abused its discretion in
rejecting the plea agreement as a means of "venting frustration" with
the United States Attorney's charging decision. The district court's
decision to accept or reject a guilty plea is committed to the district
court's discretion. See United States v. Foy, 28 F.3d 464, 472 (5th Cir.
1994); United States v. Greener, 979 F.2d 517, 519 (7th Cir. 1992).
A defendant has "no absolute right to have a guilty plea accepted."
Santobello v. New York, 404 U.S. 257, 260-61 (1971). Moreover,
under U.S. Sentencing Guidelines Manual, § 6B1.1(c), p.s. (1996) the
"court shall defer its decision to accept or reject any plea agreement
pursuant to Rules 11(e)(1)(A) and 11(e)(1)(C) until there has been an
opportunity to consider the presentence report." A district court may
properly reject a plea agreement based on its belief that the defendant
would receive a too lenient sentence. See United States v. Bean, 564
F.2d 700, 704 (5th Cir. 1977) ("A decision that a plea bargain will
result in the defendant's receiving too light a sentence . . . is a sound
reason for a judge's refusing to accept the agreement."); see also
Greener, 979 F.2d at 520 (no abuse of discretion to reject plea when
remaining count "would not adequately represent the defendant's
criminal conduct"); U.S.S.G. § 6B1.2(a), p.s. (if a plea agreement
calls for dismissal of charges or promises not to pursue potential
charges, "the court may accept the agreement if the court determines,
for reasons stated on the record, that the remaining charges ade-
quately reflect the seriousness of the actual offense behavior and that
accepting the agreement will not undermine the statutory purposes of

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sentencing or the sentencing guidelines"). Here, the district court
rejected the plea agreement, stating that it would"not accept an infor-
mation that caps [Jackson's] imprisonment at 60 months when he sup-
plied guns for seven years, apparently, to drug dealers." We find the
district court's reason for rejecting the plea agreement--that the
agreement did not adequately represent Jackson's criminal conduct--
was within its discretion.

Next, Jackson asserts that the district court judge abused his discre-
tion in denying the motion for recusal, claiming that the judge's state-
ments regarding the government's conduct "raised at least the
appearance that the court could not be impartial." (Appellant's Br. at
27). This court reviews the denial of a motion to recuse only for abuse
of discretion. See United States v. Gordon, 61 F.3d 263, 267 (4th Cir.
1995). Alleged bias must derive from an "extra-judicial source." In re
Beard, 811 F.2d 818, 824 (4th Cir. 1987). A judge is not disqualified
because his familiarity with the facts of a case stem from his judicial
conduct in presiding over earlier proceedings. See United States v.
Parker, 742 F.2d 127 (4th Cir. 1984). Moreover, judicial rulings
almost never constitute valid bases of an impartiality motion. See
United States v. Grinnell Corp., 384 U.S. 563, 583 (1966) ("The
alleged bias and prejudice to be disqualifying must stem from an
extrajudicial source and result in an opinion on the merits on some
basis other than what the judge learned from his participation in the
case."). "Judicial remarks during the course of a trial that are critical
or disapproving of, or even hostile to, counsel, the parties, or their
cases, ordinarily do not support a bias or partiality challenge." Liteky
v. United States, 510 U.S. 540, 555 (1994).

Finally, Jackson claims that he was denied effective assistance of
counsel at sentencing because his attorney failed to file timely objec-
tions to the presentence report.* A claim of ineffective assistance of
counsel should be raised by motion under 28 U.S.C.A.§ 2255 (West
1994 & Supp. 1997), and not on direct appeal, unless it "conclusively
appears" from the record that counsel did not provide effective assis-
tance. United States v. DeFusco, 949 F.2d 114, 120-21 (4th Cir.
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*Jackson's attorney moved for a continuance on the day of sentencing
to allow him additional time in which to respond to the PSR. The district
court denied his motion.

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1991). We find that it does not conclusively appear from the face of
the record that Jackson's defense counsel failed to provide effective
representation. Therefore, Jackson should assert this claim in a § 2255
proceeding.

Accordingly, we affirm Jackson's convictions. We dispense with
oral argument because the facts and legal contentions are adequately
presented in the materials before the court and argument would not
aid the decisional process.

AFFIRMED

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