                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 16-2574
                        ___________________________

                             United States of America

                        lllllllllllllllllllll Plaintiff - Appellee

                                           v.

                               Nathan Leland Minard

                      lllllllllllllllllllll Defendant - Appellant
                                      ____________

                     Appeal from United States District Court
                  for the Southern District of Iowa - Des Moines
                                  ____________

                              Submitted: April 3, 2017
                                Filed: May 8, 2017
                                 ____________

Before WOLLMAN, LOKEN, and RILEY, Circuit Judges.
                         ____________

LOKEN, Circuit Judge.

      A Knoxville, Iowa citizen reported an encounter with a suspicious person who
knocked on his door, then struck a vehicle while driving away. A dispatched Marion
County Deputy located and approached the reported vehicle parked on a dead-end
road. The vehicle’s armed driver was Nathan Minard, and the vehicle was full of
firearms and other items taken in recent local burglaries. Minard was charged and
pleaded guilty to being a felon in possession of a firearm in violation of 18 U.S.C.
§ 922(g). The Presentence Investigation Report calculated an advisory guidelines
range of 120 to 150 months in prison; the statutory maximum sentence was 10 years.

       At sentencing, Ryan McCarthy, one of Minard’s burglary victims, addressed
the court, explaining the impact the burglary of their residence had on McCarthy, his
wife, and their two young children. “My wife, you know, she’ll hear something after
I’ve left for work in the morning, you know, she’s never going to get by what’s
happened to us because of his irresponsible actions.” When McCarthy completed his
statement, the district court1 stated: “I understand exactly what you’re saying. It
happened to me, too, when my kids were little, so I know exactly what you’re talking
about.” The prosecutor then stated the government’s sentencing position, asking the
court to impose the statutory maximum of 120 months, based on Minard’s extensive
criminal history and the events leading to his arrest in a vehicle full of stolen items
and firearms. The district court discussed in detail its consideration of the 18 U.S.C.
§ 3553(a) sentencing factors and imposed a 120-month sentence.

       Minard filed a timely motion under Rule 35 of the Federal Rules of Criminal
Procedure, alleging that the district court’s statement to the crime victim at sentencing
“might have caused the Court to lack impartiality resulting in a harsher sentence,” and
seeking “re-sentencing to occur before a different Judicial Officer.” The district court
denied the motion without a hearing, explaining that its statement to the victim “had
nothing to do with the sentence imposed. . . . [It was] an expression of empathy,
nothing more.” Minard appeals, arguing the district court erred in denying his Rule
35 motion because the statement reflected a bias or partiality which required the judge
to recuse, sua sponte, pursuant to 28 U.S.C. § 455(a). We conclude this contention
is without merit for multiple reasons and therefore affirm.



      1
        The Honorable John A. Jarvey, Chief Judge of the United States District Court
for the Southern District of Iowa.

                                          -2-
       First, as Minard did not object or move for recusal at sentencing, the issue was
not timely raised and our review is for plain error. See, e.g., United States v.
Burnette, 518 F.3d 942, 945 (8th Cir. 2008). Rule 35 provides, “Within 14 days after
sentencing, the court may correct a sentence that resulted from arithmetical, technical,
or other clear error.” Minard cites no case, and we have found none, in which Rule
35 relief was granted because the sentencing judge failed to recuse sua sponte.
Minard seeks to bring his motion within the purview of Rule 35 by arguing the
district court committed “clear error.” But clear error is not plain error.

       Second, “a judge is presumed to be impartial and the party seeking
disqualification bears the substantial burden of proving otherwise.” United States v.
Ali, 799 F.3d 1008, 1017 (8th Cir. 2015) (quotation omitted). Opinions based on
facts or events occurring in a judicial proceeding “do not constitute a basis for a bias
or partiality motion unless they display a deep-seated favoritism or antagonism that
would make fair judgment impossible.” Liteky v. United States, 510 U.S. 540, 555
(1994). Here, the district court’s spontaneous expression of empathy for a crime
victim’s impact statement reflected no deep-seated antagonism, and its statement of
reasons for imposing a 120-month sentence reflected thorough and proper
consideration of the statutory sentencing factors.

       Finally, Congress has given crime victims the statutory rights “to be reasonably
heard at any public proceeding in the district court involving . . . sentencing,” and “to
be treated with fairness and with respect for the victim’s dignity and privacy.” 18
U.S.C. § 3771(a)(4) and (8). Rather than reflect bias or antagonism to Minard, the
district court’s single statement -- directed to the crime victim at the end of the
victim’s stressful appearance -- furthered the congressional policy of encouraging
crime victim participation in the criminal justice process.

      The judgment of the district court is affirmed.
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