                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-6-2006

USA v. Rosario-Vazquez
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-4776




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Recommended Citation
"USA v. Rosario-Vazquez" (2006). 2006 Decisions. Paper 480.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/480


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                                              NOT PRECEDENTIAL

                UNITED STATES COURT OF APPEAL
                    FOR THE THIRD CIRCUIT


                              No. 05-4776


                   UNITED STATES OF AMERICA

                                   v.

                 LUIS ANGEL ROSARIO VAZQUEZ,

                                        Appellant


                   On Appeal from the District Court
                           of the Virgin Islands
                    (D.C. Criminal No. 03-cr-00053)
                  District Judge: Hon. Curtis V. Gomez


            Submitted Pursuant to Third Circuit LAR 34.1(a)
                            May 11, 2006

        BEFORE: FISHER, COWEN and ROTH,* Circuit Judges

                       (Filed September 6, 2006)




                               OPINION




*The Honorable Jane R. Roth assumed senior status on May 31, 2006.
COWEN, Circuit Judge.

       Luis Angel Rosario-Vazquez appeals from a final Judgment and Commitment

Order of the District Court of the Virgin Islands, Division of St. Thomas and St. John.

His sole contention on appeal is that the District Court erred in denying his motion for

recusal. For the reasons provided below, we will affirm.

                                              I.

       Following Rosario-Vazquez’s plea of guilty on drug conspiracy charges, the

District Court held a sentencing hearing on March 9, 2005. The district judge who

presided over the sentencing hearing was formerly a Deputy Criminal Chief in the United

States Attorney’s Office for the District of the Virgin Islands.

       At the sentencing hearing, Rosario-Vazquez objected to the district judge presiding

over the hearing because of his former supervisory role at the United States Attorney’s

Office. In response, the district judge stated that he did not have any active involvement

in defendant’s case while he served as the Deputy Criminal Chief, and, therefore, denied

the motion to recuse.

       On October 5, 2005, Rosario-Vazquez was sentenced to 121 months of

imprisonment.

                                             II.

       We review a district court’s order denying a motion for recusal for an abuse of

discretion. United States v. Di Pasquale, 864 F.2d 271, 278 (3d Cir. 1988).



                                              2
       Pursuant to 28 U.S.C. § 455(b)(3), a judge must disqualify himself “[w]here he 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.” With regard to a judge who formerly served

as a supervisory attorney in the United States Attorney’s Office, we have stated that,

“absent a specific showing that that judge was previously involved with a case while in

the U.S. Attorney’s office that he or she is later assigned to preside over as a judge, §

455(b)(3) does not mandate recusal.” Id. at 279 (emphasis in original).

       In the present case, there is no evidence in the record that the district judge who

presided over the sentencing hearing actually participated in, or was involved with, the

investigation or the prosecution of this case. Accordingly, we conclude that the District

Court did not abuse its discretion in denying the oral motion for recusal.1 We will

therefore affirm the judgment of the District Court.




   1
     For the same reason, we find recusal unnecessary under 28 U.S.C. § 455(a), which
states that “[a]ny justice, judge, or magistrate judge of the United States shall disqualify
himself in any proceeding in which his impartiality might reasonably be questioned.”

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