                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 07-5088


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

MAURICE TAFT GIBSON, a/k/a Mo,

                Defendant - Appellant.



Appeal from the United States District Court for the Southern
District of West Virginia, at Bluefield. David A. Faber, Senior
District Judge. (1:05-cr-00126-1)


Argued:   March 27, 2009                  Decided:   May 26, 2009


Before NIEMEYER, KING, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


ARGUED: Jay Thornton McCamic, MCCAMIC, SACCO, PIZZUTI & MCCOID,
PLLC, Wheeling, West Virginia, for Appellant.          Miller A.
Bushong, III, OFFICE OF THE UNITED STATES ATTORNEY, Beckley,
West Virginia, for Appellee.      ON BRIEF: Charles T. Miller,
United States Attorney, Charleston, West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

       A   jury    convicted           Maurice       Gibson    on    fifteen    counts    of

conspiracy        to    traffic          in      cocaine       and     oxycodone,        drug

trafficking, conspiracy to launder money, and money laundering.

On Gibson’s motion for a new trial, the district court granted

the motion as to three counts based on the government’s failure

to disclose pretrial statements of a co-conspirator that were

inconsistent with the co-conspirator’s testimony at trial.                               With

respect to the remaining 12 counts, the district court sentenced

Gibson to 240 years’ imprisonment.                       The government elected not

to retry Gibson on the three counts and dismissed them.

       Gibson     contends        on    appeal       that     (1)   the    district   court

abused its discretion in denying his motion for a mistrial when

he    discovered       that   a    DEA     Special       Agent      allegedly    testified

falsely and, after the verdict was rendered, his motion for a

new   trial     based    on   the       same     ground;      (2)    the   district   court

abused its discretion in denying his motion for a new trial on

all counts based on a Brady and Jencks Act violation committed

in connection with the testimony of a co-conspirator; (3) the

district court erred in sentencing by applying the first degree

murder cross-reference under U.S.S.G. §§ 2D1.1(d) and 2A1.1 and

in finding facts under the preponderance-of-evidence standard in

doing so; and (4) the district judge abused his discretion in

denying Gibson’s motion to recuse the judge.

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       For the reasons that follow, we reject Gibson’s arguments

and affirm.

                                            I

       Gibson’s convictions grew out of a year-long investigation

that    produced      hours   of    audio       and   video   recordings    of    drug

transactions between Gibson and a cooperating individual, Mike

White, who owned a tattoo parlor frequented by Gibson and his

co-conspirators.        A majority of the controlled buys took place

in     the   tattoo    parlor      where    police     were   able   to    view   the

transactions in real time through a security camera placed near

the ceiling.       At the same time, they wired White with an audio-

video device called a “Hawk.”                    The “Hawk,” however, did not

transmit in real time but recorded the information for later

retrieval.

        After a rumor surfaced that White was cooperating with the

police, he was murdered in front of his tattoo parlor.                        Police

suspected Gibson’s involvement but never charged him with the

murder.      The district court, however, enhanced Gibson’s sentence

based on the court’s finding that Gibson ordered the murder.

Based on that finding, the district court sentenced Gibson to 20

years’ imprisonment on each of the twelve counts of conviction,

to run consecutively, for a total of 240 years’ imprisonment.

This appeal followed.



                                            3
                                          II

      Gibson first contends that the district court abused its

discretion in denying his motion for a mistrial, made during

trial, and his motion for a new trial made after the verdict was

returned,   both    of     which    were       based    on     the    allegedly          false

testimony of DEA Special Agent E. H. Kennedy.                            Agent Kennedy

testified that Mike White, the cooperating individual, did not

know that the “Hawk” device that he was wearing had a video

component in addition to its audio component.                        Kennedy said that

not only did he not tell White that the “Hawk” recorded video

content, but he also explained that it was his regular practice

not to advise cooperating individuals of that fact in order to

better   monitor    the    informant       and    ensure       the     quality      of    the

evidence being obtained about the drug transaction.

      Following     Kennedy’s       testimony,         during    a     recess       of    the

trial,   counsel    for    the     government      directed          defense    counsel’s

attention   to    two    documents       that    had    been    produced       to    Gibson

during pretrial discovery.               The documents were handwritten law

enforcement summaries of controlled buys, which were written by

law   enforcement       officers    and    signed       by   White.        One      of    the

documents contained a statement that White had been given “an

audio/video recorder” by one of the detectives.

      Gibson moved for a mistrial based on the inconsistency of

Kennedy’s   testimony      and     the    documents      and     on     the    fact      that

                                           4
counsel    to     the    government        had     not      brought       the    documents         to

Gibson’s    attention          earlier.          The     district         court      denied       the

motion.      When Gibson raised the same point after the verdict

through a motion for a new trial, the court again denied the

motion.      The court found that Special Agent Kennedy did not

testify untruthfully and that the documents did not conclusively

establish    that       Kennedy       knew   White          was   told      about      the    video

component of the “Hawk.”               The documents were prepared by another

law enforcement officer and were ambiguous since White was also

being recorded by a fixed video camera.                                 The video reference

could have been understood to be referring to that camera.                                        The

court     also        found    that       Gibson’s          failure       to    identify          the

potentially       inconsistent         documents         was      not    the    fault        of   the

government       since        the   government           provided         Gibson       with       the

documents        before       trial,      early        in     the       discovery       process.

Finally, the court noted that Gibson was still able to present

his argument, through cross-examination, that White might have

been aware of the camera or could have “swapped” the items given

to him by Gibson for other items outside the view of the camera

during the controlled buy.

    We     conclude       that      the    district          court      did    not     abuse      its

discretion       in    denying      Gibson’s       motions.           The      point    of    Agent

Kennedy’s testimony was not central to the case as a whole.

Moreover, the video from the “Hawk” was one of two sources of

                                               5
video    for   each   of    the    transactions,     possibly   rendering       the

summary document consistent with Kennedy’s testimony.                   And even

if the testimony and the document were somewhat inconsistent,

they both could be true.            White could not read and write well,

and Agent Kennedy did not write the statement which included the

reference to the video component of the “Hawk.”                    Thus, these

were matters for the jury to resolve, not a basis to overrule

the district court’s decision not to grant a mistrial or a new

trial.    In addition, even if the district court rulings were an

abuse of discretion, Gibson failed to show that they affected

the validity of the judgment.              See United States v. Nyman, 649

F.2d 208, 212 (4th Cir. 1980).


                                        III

     Gibson also contends that the district court abused its

discretion in denying his motion for a new trial based on a

Brady violation and Jencks Act violation.                 Gibson contends that

the government violated its disclosure obligations by failing to

produce    pretrial        statements      of   Christina     Arnoto,     a     co-

conspirator, whose testimony turned out to be at odds with the

undisclosed statements.

     Arnoto    testified      at   trial     that   she   introduced    White    to

Gibson; that she was good friends with both; and that she bought

drugs from Gibson on more than one occasion.                She also testified


                                         6
that she knew Gibson was a drug dealer as early as 1998.                          This

testimony proved to be inconsistent with statements that Arnoto

had given earlier to law enforcement officers on the day White

was murdered.        In those statements, Arnoto denied knowledge of

Gibson’s drug dealing and denied her involvement in any drug

dealing.

      Arnoto’s   statements        were   first    provided       to   Gibson    after

trial and before sentencing as part of the discovery relating to

White’s murder, and thus defense counsel did not have them to

impeach     Arnoto      during     the    trial.          After    reviewing      the

statements, Gibson filed a motion for a new trial.                     In response,

the government acknowledged it should have disclosed Arnoto’s

prior statements earlier and asserted that its error was not

deliberate.        It    argued,    however,       that   the     statements     were

immaterial to the outcome on the counts with respect to which

Arnoto gave her testimony.

      The   district     court     granted    in   part    and    denied    in    part

Gibson’s     motion.        It      rejected       his    assertion       that    the

nondisclosure was a Brady violation because Gibson failed to

show that the results of the trial would have been different had

the   statements     been   provided      earlier.        With    respect   to    the

Jencks Act violation, however, the court concluded it could not

find that the defendant suffered no prejudice on account of the

nondisclosure.       The court accordingly granted Gibson’s new trial

                                          7
motion with respect to the three counts on which Arnoto provided

testimony, namely the conspiracy count, and two counts dealing

with    discrete       drug    transactions.              The    government         thereafter

chose not to retry Gibson on those counts, agreeing to dismiss

them with prejudice.

       We    conclude    that       the    district       court        did    not   abuse      its

discretion in making these rulings.                        See Strickler v. Greene,

527 U.S. 263, 280-81 (1999) (“not every violation of [the duty

to     disclose]    necessarily           establishes           that     the    outcome        was

unjust”).          As    the     Supreme          Court     noted        in     the       similar

circumstances in Strickler, even if the witness could have been

severely impeached with the pretrial statements had they been

disclosed,      “the      record          provides        strong        support       for      the

conclusion that petitioner would have been convicted of capital

murder and sentenced to death.”                      Id. at 294.               Moreover, in

remedying the Jencks Act violations, the district court actually

granted Gibson’s motion, resulting in the dismissal of three

counts.      Given the vast amount of evidence available to support

the convictions on the remaining twelve counts, which were not

directly addressed by Arnoto’s testimony, one cannot reasonably

conclude that the statements would have made a difference to the

jury’s      analysis    on    the    remaining       counts.            Arnoto      was    a   key

witness for only three counts, and the government presented her



                                              8
testimony only to prove those three counts.                            Accordingly, we

conclude that the district court did not abuse its discretion.


                                            IV

     Gibson     next    contends       that      the   district        court    erred   in

applying the first degree murder cross reference under U.S.S.G.

§§ 2D1.1(d) and 2A1.1.            He argues that because he was never

indicted for the murder of White and because the district court

found that Gibson committed the murder only by a preponderance

of the evidence, he was “deprive[d]” of “significant liberty

interests without the democratic constraint of a grand jury and

petit jury and the procedural safeguards of the proof beyond a

reasonable doubt evidentiary standard.”

     During the sentencing proceedings, the district court heard

evidence that Gibson ordered White’s murder and that the likely

“trigger    man”   was    one     of       Gibson’s      associates.           The   court

accepted the evidence presented and, using the preponderance of

evidence    standard,     found       it    appropriate      to       apply    the   first

degree murder cross reference under U.S.S.G. § 2D1.1(d)(1).

     A   sentencing      court    can      make    factual       findings      under    the

preponderance      of    the     evidence         standard       to     determine       the

appropriate sentence within the statutory maximum.                             See United

States     v.   Benkahla,       530     F.3d      300,     312    (4th        Cir.   2008)

(“Sentencing judges may find facts relevant to determining a


                                             9
Guidelines range by a preponderance of the evidence, so long as

that Guidelines sentence is treated as advisory and falls within

the statutory maximum authorized by the jury's verdict”); see

also    Rita     v.    United    States,     127    S.    Ct.     2456,    2465       (2007)

(“[M]any    individual         Guidelines       apply    higher    sentences          in   the

presence    of    special       facts”;     “In    many    cases,    the       sentencing

judge,    not    the    jury,    will     determine       the    existence       of    those

facts”; and “[a]s far as the law is concerned, the judge could

disregard the Guidelines and apply the same sentence . . . in

the    absence    of    the    special    facts”).         Moreover,       a   sentencing

court may enhance a defendant’s sentence based on its findings

by a preponderance of the evidence, even where the jury has

acquitted the defendant of that conduct.                        See United States v.

Martinez, 136 F.3d 972, 979 (4th Cir. 1998).                          Accordingly we

reject Gibson’s challenge to the district court’s application of

the first degree murder cross reference under U.S.S.G. §§ 2D1.1

and 2A1.1 and its factfinding under the preponderance of the

evidence standard.

                                            V

       Finally,       Gibson    contends     the    district       judge       abused      his

discretion in denying Gibson’s motion, filed before sentencing,

to recuse the judge because of the judge’s bias against him.

       When sentencing two co-conspirators, the judge stated that

“two violent deaths have been implicated or are related” to the

                                            10
conspiracy.    He also stated that “Maurice Gibson, we all know

based on the evidence at trial and in related cases that he was

a significant drug dealer, and we also know that there were at

least two deaths which appear to be related in some way to his

drug dealing.”           Based on these statements, as well as harsh

statements made by the district judge to Gibson’s counsel during

trial, Gibson filed his motion to disqualify the judge before he

sentenced Gibson.

     The judge denied the motion, finding that he was not biased

or unable to fairly sentence Gibson.

     Under 28 U.S.C. § 455, a judge must disqualify himself “in

any proceeding in which his impartiality might reasonably be

questioned.”       He must disqualify himself also “[w]here he has a

personal    bias    or    prejudice   concerning    a   party,   or   personal

knowledge     of     disputed    evidentiary       facts   concerning     the

proceeding.”       Id. at § 455(b)(1).         In determining whether a

judge has a disqualifying bias, we have stated:

     The alleged bias must derive from an extra-judicial
     source. It must result in an opinion on the merits on
     a basis other than that learned by the judge from his
     participation in the matter.        The nature of the
     judge’s bias must be personal and not judicial.      A
     judge is not disqualified because his familiarity with
     the facts of a case stem from his judicial conduct in
     presiding over earlier proceedings.




                                       11
In   re    Diana    R.    Beard,     811    F.2d        818,    827    (4th       Cir.    1987).

Accordingly,        opinions       gathered        from        “participation            in    the

matter” will not serve as a basis for a recusal.                            Id.

      We    conclude      that     the     district       judge       did   not     abuse      its

discretion     in    refusing        to    disqualify          himself.       There       is    no

reasonable basis to believe that the district judge was biased.

Gibson     failed        to   show    that        the     judge       had     any    improper

relationships or made any statements about Gibson’s guilt or

innocence     during      his    trial.       The       statements      made       during      the

sentencing of Gibson’s co-conspirators demonstrated no knowledge

of Gibson’s activities other than that which was acquired by

participation in the proceedings.

      For the foregoing reasons, we affirm the judgment of the

district court.

                                                                                     AFFIRMED




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