                                                             United States Court of Appeals
                                                                      Fifth Circuit
                                                                   F I L E D
                    UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                    December 21, 2006
                        _______________________
                                                               Charles R. Fulbruge III
                              No. 05-11072                             Clerk
                        _______________________

                       UNITED STATES OF AMERICA,

                                                      Plaintiff-Appellee,

                                  versus

                            TERRELL M. CLARK,

                                                     Defendant-Appellant.


          On Appeal from the United States District Court
                 for the Northern District of Texas
                          No. 4:04-CR-70-3


Before JONES, Chief Judge, and DAVIS and GARZA, Circuit Judges.

EDITH H. JONES, Chief Judge:*

           Terrell M. Clark pled guilty to stealing a firearm from

a licensed dealer in violation of 18 U.S.C. §§ 924(m), (c)(1)(A),

and was sentenced, after an upward departure, to 240 months in

prison.   Clark now appeals his sentence, arguing that the district

court erred in finding he committed an additional robbery by a

preponderance of the evidence, denying his motion to recuse, and

imposing an unreasonable sentence. Finding no reversible error, we

AFFIRM.




     *
            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opinion should not be published and is not precedent except under the limited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.
                               I.    BACKGROUND

           In June 2004, Terrell Clark pled guilty to the November

2003 robbery of the 183 Pawn Shop (“183 robbery”) near Fort Worth,

Texas, in violation of 18 U.S.C. § 924(m), (c)(1)(A).              Prior to his

guilty plea, Clark entered into a cooperation agreement with the

government, pursuant to U.S.S.G. § 1B1.8, in which he agreed to

disclose his knowledge of crimes committed by himself and others.

During interviews with authorities, Clark admitted that he robbed

the Alvarado Pawn Shop (“Alvarado robbery”) in Alvarado, Texas in

August 2003.

           At Clark’s sentencing for the 183 robbery in October

2004, the district court found by a preponderance of the evidence

that Clark     committed     the    Alvarado   robbery.     Even    though   the

government believed it did not have enough information to reach

this conclusion without Clark’s admission during the cooperation

interviews,    the   court    overruled     Clark’s   and   the    government’s

objections to its consideration of the firearms stolen in that

robbery.

           In determining Clark’s sentence, the court started with

a base offense level of eighteen and added six levels pursuant to

U.S.S.G. § 2K2.1(b)(1)(C) because Clark and his associates had

taken twenty-eight firearms in both the Alvarado and 183 robberies.

After making other guidelines adjustments, the guideline sentence

range was 154-171 months.            The government requested a downward



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departure for Clark’s cooperation, but the court upwardly departed

from the guideline range and imposed a sentence of 240 months.             In

reaching the 240-month sentence, the court asserted that it had

actually departed downward from the guideline range of 454-471

months Clark would have faced had he been convicted of the Alvarado

robbery.   After Clark appealed and the government moved to vacate

the sentence, this court, in a brief opinion, vacated Clark’s

sentence and remanded for resentencing.            United States v. Clark,

132 F.App’x 529 (5th Cir. 2005) (unpublished).

           On August 30, 2005, two days before resentencing, Clark

moved to recuse Judge McBryde, but the court denied the motion and

reimposed the 240-month sentence. The court based this decision on

an expanded record of information regarding the Alvarado robbery

that the government provided, including twelve new exhibits.             This

information had been part of the government’s file before the first

sentencing   but   was    previously       not   furnished   to   the   court.

Excluding Clark’s admission during his cooperation interviews, the

district court again found by a preponderance of the evidence that

Clark had committed the Alvarado robbery.           Clark now appeals.

                         II.   STANDARD OF REVIEW

           “Factual bases for sentencing need only be shown by a

preponderance of the evidence and are reviewed for clear error.”

United States v. Froman, 355 F.3d 882, 893 n.10 (5th Cir. 2004);

see also United States v. Shacklett, 921 F.2d 580, 584 (5th Cir.



                                       3
1991).   “In order to satisfy this clear error test all that is

necessary is that the finding be plausible in light of the record

as a whole.”   United States v. Edwards, 303 F.3d 606, 645 (5th Cir.

2002). After United States v. Booker, 543 U.S. 220, 125 S. Ct. 738

(2005), this court reviews a defendant’s sentence, including an

upward departure, for reasonableness.            United States v. Mares,

402 F.3d 511, 519-20 (5th Cir. 2005).      Moreover, this court reviews

“the district court’s decision to depart upwardly and the extent of

that departure for abuse of discretion.”         United States v. Zuniga-

Peralta, 442 F.3d 345, 347 (5th Cir. 2006).

                             III.   DISCUSSION

                        A.    Alvarado Robbery

          Clark initially contends that, excluding his admission

during a protected cooperation interview, there was insufficient

evidence that he committed the Alvarado robbery. Sentencing courts

are prohibited from using self-incriminating information provided

pursuant to a cooperation agreement in determining the guideline

range.   U.S.S.G. § 1B1.8(a); see also Shacklett, 921 F.2d at 582.

However, the court may use information “known to the government

prior to entering into the cooperation agreement.”              U.S.S.G.

§ 1B1.8(b)(1); see also United States v. Betancourt, 422 F.3d 240,

247 (5th Cir. 2005); United States v. Marsh, 963 F.2d 72, 74 (5th

Cir. 1992).




                                     4
          Considering   the   evidence   as   a   whole,   and    excluding

Clark’s admission during the cooperation interview, the district

court did not clearly err in finding by a preponderance of the

evidence that Clark committed the Alvarado robbery.        Investigators

noted that the 183 and Alvarado robberies were similar, and victims

identified Clark as a potential suspect in the Alvarado robbery.

Moreover, Clark possessed firearms from the Alvarado robbery in his

house, and, of the three Alvarado robbery suspects, Clark was the

only one to whom items taken in the Alvarado robbery had been

traced. Finally, Clark transferred a gun from the Alvarado robbery

to an associate, and he planned a robbery around the time that the

Alvarado robbery occurred.     The district court’s upward departure

based on the Alvarado robbery was not clear error.               See, e.g.,

United States v. Reveles, 190 F.3d 678, 685 (5th Cir. 1999) (no

clear error in finding that all shipments contained marijuana);

United States v. Boutte, 13 F.3d 855, 860 (5th Cir. 1994) (no clear

error in finding that defendant was organizer or leader).

                        B.    Judicial Recusal

          Clark next contends that the district court abused its

discretion by denying his motion to recuse from resentencing

because the court “went to great pains” to discredit the testimony

of the government’s agent.     He also suggests that the court’s bias

is evidenced by its imposition of a lesser sentence on Clark’s co-

defendant.   This court reviews the denial of a motion to disqualify



                                   5
under 28 U.S.C. § 455 for abuse of discretion.       See Sensley v.

Allbritton, 385 F.3d 591, 598 (5th Cir. 2004).

          Section 455(a) requires that “[a]ny . . . judge . . . of

the United States shall disqualify himself in any proceeding in

which his impartiality might reasonably be questioned.”     We have

interpreted this statute “to require recusal if a reasonable

person, knowing all of the facts, would harbor doubts concerning

the judge’s impartiality.”       Sensley, 385 F.3d at 599 (citing

Liljeberg v. Health Serv. Acquisition Corp., 486 U.S. 847, 860-61,

108 S. Ct. 2194, 2203 (1988)).   However, the Supreme Court noted in

Liteky v. United States, 510 U.S. 540, 555, 114 S. Ct. 1147, 1157

(1994), that “judicial rulings alone almost never constitute a

valid basis for a bias or partiality motion.”       See also United

States v. Mizell, 88 F.3d 288, 300 (5th Cir. 1996) (noting that the

“grounds for recusal that Mizell asserts consist of judicial

rulings which the district judge was required to make”) (emphasis

in original).

          We cannot review arguments that Clark raises for the

first time on appeal.   See Andrade v. Chojnacki, 338 F.3d 448, 454

(5th Cir. 2003) (“[r]equests for recusal raised for the first time

on appeal are generally rejected as untimely”) (citing Sanford,

157 F.3d at 988-89).    Clark argued before the district court that

the motion to recuse should be granted because the court had

previously used information protected by the cooperation agreement

at his first sentencing.   He abandons this argument on appeal and

                                  6
asserts two new grounds for recusal.        As we noted in Andrade, Clark

raises these new arguments after an adverse judgment and for the

first time on appeal.        See 338 F.3d at 459.    These arguments will

not be considered.

             But even if we employ plain-error review “for the sake of

argument,” see id. at 459 n.4, Clark’s contentions are meritless.

He complains of judicial decisions that the court was required to

make   and    which    are   insufficient    to    question   the   court’s

impartiality.     See Mizell, 88 F.3d at 300; see also United States

v. Landerman, 109 F.3d 1053, 1066 (5th Cir. 1997) (“[T]he judge’s

rulings should constitute grounds for appeal, not for recusal.”).

There is no evidence that Judge McBryde relied upon knowledge

acquired     outside   the    judicial    proceedings   or    displayed   a

“deepseated animosity” toward Clark that rendered “fair judgment

impossible.”     See Liteky, 510 U.S. at 556, 114 S. Ct. at 1158.

                             C.   Reasonableness

             Clark next challenges the reasonableness of his 240-month

sentence when compared to the 192-month sentence his co-defendant

received. Clark concedes that the district court took into account

the sentencing factors in 18 U.S.C. § 3553(a) and recognized the

sentencing disparity, yet he argues that the district court failed

to consider the factor of disparity in § 3553(a)(6).

             The district court adequately explained that its reasons

for increasing Clark’s sentence above the guideline range were



                                      7
grounded in the factors articulated in 18 U.S.C. § 3553(a).                See

Zuniga-Peralta, 442 F.3d at 347-49.              The court addressed the

disparity   between   the    two    sentences   by   stating   that   it   had

disbelieved Clark’s testimony at Rhodes’s trial that Rhodes had

participated in the Alvarado robbery, but it had found by a

preponderance of the evidence that Clark participated in the

Alvarado robbery.     Cf. United States v. Smith, 440 F.3d 704, 709

(5th Cir. 2006); United States v. Candia, 454 F.3d 468, 477 (5th

Cir. 2006).    Whether or not this court would have issued the same

sentence, we cannot conclude that it was unreasonable.

                            D. Sentencing Error

            Relying upon Apprendi v. New Jersey, 530 U.S. 466, 120 S.

Ct. 2348 (2000), Clark argues that the district court erred by

increasing his sentence based upon facts not included in the

indictment and not proven to a jury beyond a reasonable doubt.

Clark’s argument is foreclosed by United States v. Mares, 402 F.3d

511, 519 (5th Cir. 2005).      Finally, Clark argues that his sentence

on remand exceeded the maximum authorized sentence under the

Sentencing Guidelines before United States v. Booker, 543 U.S. 220,

125 S. Ct. 738 (2005), in violation of the Ex Post Facto Clause.

This argument has been rejected by United States v. Scroggins,

411 F.3d 572, 575 (5th Cir. 2005).

                              IV.   CONCLUSION




                                      8
            For   the   reasons   stated   above,   Clark’s   sentence   is

AFFIRMED.




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