                     Revised December 3, 1998

                  UNITED STATES COURT OF APPEALS
                       For the Fifth Circuit



                             No. 97-11392



                     UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee,


                                 VERSUS


                         RICARDO AVILEZ-REYES,

                                                  Defendant-Appellant.




          Appeal from the United States District Court
               for the Northern District of Texas


                           November 10, 1998

Before REYNALDO G. GARZA, JONES, and DEMOSS, Circuit Judges.

DEMOSS, Circuit Judge:

     Ricardo Avilez-Reyes (“Avilez-Reyes”) appeals his sentence of

180 months imprisonment, arguing that the district judge committed

reversible error by failing to recuse himself from the case before

sentencing was to occur.     For the reasons that follow we vacate

Avilez-Reyes’   sentence   and   remand   for   resentencing   before   a

different district judge.
                                     I.

     On July 18, 1997, Avilez-Reyes pleaded guilty before United

States District Judge John McBryde to the crime of possession with

intent to distribute methamphetamine, in violation of 21 U.S.C. §

841(a)(1), (b)(1)(A) and 18 U.S.C. § 2.            On October 9, 1997,

roughly two weeks before sentencing was scheduled to occur, Avilez-

Reyes moved Judge McBryde to recuse himself from the case.              He

brought the motion under 28 U.S.C. § 455(a) based on the fact that

his attorney, Public Defender Paul D. Stickney (“Stickney”), had

testified against Judge McBryde only one month earlier in judicial

disciplinary proceedings before a special investigatory committee

of the Fifth Circuit Judicial Council.       Judge McBryde subsequently

denied    the   motion   and   sentenced   Avilez-Reyes   to   180   months

imprisonment.1 Avilez-Reyes, who appeals only his sentence in this

appeal, asks this Court to remand the case for resentencing before

a different district judge based on Judge McBryde’s refusal to

recuse.    We accede to his request.



                                     II.

     Avilez-Reyes contends that Judge McBryde abused his discretion

and committed reversible error by refusing to grant his motion for

a recusal under 28 U.S.C. § 455(a).         He bases that claim on the

contention that his case became infected with the appearance of

     1
       The applicable guidelines range for Avilez-Reyes under the
United States Sentencing Guidelines was 168 to 210 months.

                                     2
impropriety once Stickney, his attorney, testified against Judge

McBryde in the Fifth Circuit Judicial Council proceedings.                 We

agree with that contention.

     Section 455(a) requires a judge to stand recused "in any

proceeding     in   which    his      impartiality   might    reasonably   be

questioned."    28 U.S.C. § 455(a).         As the goal of § 455(a) "is to

exact the appearance of impartiality," recusal may be mandated even

though no actual partiality exists. Hall v. Small Business Admin.,

695 F.2d 175, 178 (5th Cir. 1983).          The standard by which we judge

recusal is an objective one.          If a "reasonable man, were he to know

all the circumstances, would harbor doubts about the judge's

impartiality,"      then    recusal    is   warranted.       Health   Services

Acquisition Corp. v. Liljeberg, 796 F.2d 796, 800 (5th Cir. 1986),

aff'd, 486 U.S. 847 (1988).

     On the facts of this case we hold that Judge McBryde abused

his discretion and reversibly erred by failing to recuse himself

from Avilez-Reyes’ case.        We conclude that a reasonable person,

advised of all the circumstance of this case, would harbor doubts

about Judge McBryde’s impartiality. We find additional support for

our decision in the unfortunate fact that on February 9, 1998, the

Judicial Council of the Fifth Circuit issued an order executing a

Judicial Council Order of December 31, 1997, ordering Judge McBryde

not to participate in cases involving attorneys who have testified

against him for a three year period.           That order, which expressly


                                        3
lists Stickney as one of the testifying attorneys, is a clear

indication that our colleagues on the Judicial Council felt there

would be an appearance of impropriety in Judge McBryde continuing

to preside over attorneys who had so recently testified against

him.

       Also guiding our decision is this Court’s holding in United

States v. Anderson, No. 97-11205 (1998), a case decided at the same

time as the present appeal.

       As in Anderson, we again find that Judge McBryde committed

reversible error by failing to recuse himself from Avilez-Reyes’

case.   We also find Avilez-Reyes’ motion timely and well-taken in

all other relevant respects.   Accordingly, we vacate Avilez-Reyes’

sentence and remand this case for resentencing before a different

judge in that district.




                                 4
EDITH H. JONES, Circuit Judge, dissenting:

           Tony Leroy Anderson and Ricardo Avilez-Reyes, represented

by   the   Federal     Public     Defender’s         Office,     pleaded     guilty,

respectively,     to   bank    robbery    and       possession   with   intent   to

distribute methamphetamine.          Between their plea agreements and

sentencing hearings, a unique event occurred.                  The district judge

responsible for their cases was brought before a judicial conduct

and disciplinary hearing convened by the Fifth Circuit Judicial

Council.   In that hearing, the attorneys who testified against the

Honorable John McBryde were predominantly government lawyers: six

current or former lawyers from the United States Attorney’s Office

in the Northern District of Texas, five from the Federal Public

Defender’s Office.2       Because the Chief Judge of this circuit has

refused to make the records of the disciplinary hearing public,3 we

do   not   know    what       testimony       was    presented    or    by    whom.4

Nevertheless, the federal public defenders who represented these

defendants sought Judge McBryde’s recusal from sentencing because

they themselves testified against him at the hearing.                      The judge

denied their motions.         Both defendants were sentenced within the

     2
       The attorney-witnesses against Judge McBryde are listed in
McBryde’s Memorandum at 8-10.
     3
       See 28 U.S.C. § 372(c)(14)(C).    Judge McBryde requested
publication of all the proceedings, but the Chief Judge exercised
his unilateral prerogative to deny that request.
     4
       One member of this panel was on the Judicial Council at the
time of the hearing but was not a direct participant in the
hearing.

                                          5
applicable Guidelines ranges and raise as their only appellate

point the denial of recusal.

          My colleagues hold that Judge McBryde should have recused

and,   further,   that   defendants’      sentences   are   vacated.      I

respectfully dissent. My colleagues’ interpretation of § 455(a) in

these cases conflicts with our precedents and, by unnecessarily

provoking more motions and requiring more recusals, will create

serious problems for the efficient administration of justice in the

federal courts.     In addition, they engage in no analysis of the

remedy, although sentencing the defendants was harmless error in

these cases.      Finally,   their   decisions   unfairly   pile   on    the

punishments that have already been imposed on Judge McBryde by the

Fifth Circuit Judicial Council.


                                     I.

          The panel’s principal error is to review Judge McBryde’s

recusal decision only in hindsight.            The defendants’ recusal

motions must be viewed in terms of events as the parties knew them

at the time.      The public defenders had testified against Judge

McBryde and the disciplinary hearing was over, but no decision had

yet been rendered. The potential seriousness of the proceeding was

beyond dispute, but at that stage, particularly given the novelty

of the proceeding, its outcome could hardly have been foreseen.

There is no reason to think that Judge McBryde would have had it in

for the clients of people who were testifying against him.             Every


                                     6
judge must     develop    a   thick   skin    against    criticism,     and   most

judicial conduct complaints come to nought.              A reasonable person,

knowing all the circumstances, would not have had reason to doubt

the judge’s impartiality toward these defendants.             See In re Hipp,

Inc., 5 F.3d 109, 116 (5th Cir. 1993).

            The public defenders were not responsible for convening

the hearing.      There is no meaningful distinction between their

testimony    against     Judge   McBryde     in   the   hearing   and   lawyers’

publicly questioning a presiding judge’s impartiality or ability to

handle a case.5        Yet the impact of this criticism is treated

differently by the panel, apparently because it later resulted in

sanctions against Judge McBryde.

            The   panel’s     unwarranted     and   stringent     standard    for

recusals will hinder the effective administration of justice.

Although courts must be mindful that maintaining the appearance of

partiality is at least as important as its actuality, federal

judges equally have a duty to sit on cases properly before them.

See In re Drexel Burnham Lambert Inc., 861 F.2d 1307, 1312 (2d Cir.

1988) (“A judge is as much obliged not to recuse himself when it is

not called for as he is obliged to when it is.”); Hinman v. Rogers,

831 F.2d 937, 939 (10th Cir. 1987) (“There is as much obligation

for a judge not to recuse when there is no occasion for him to do

     5
       In fact, the disciplinary hearing testimony was in one
regard even less threatening than garden-variety public criticisms
because the proceedings were held in secret and could not be made
public without Judge McBryde’s consent.

                                       7
so as there is for him to do so when there is.”).                    They must not

cower before heavy-handed attempts to stifle their independence by

false attacks on their integrity.

             The   panel’s     opinion     raises    at    least    three    sets   of

problems. First, these federal public defenders essentially assert

that the judge could not be impartial to their clients because of

what they (the lawyers) did to him, which they allege created an

extrajudicial source of influence or prejudice.                  Does this suggest

that any aggressive lawyer who faces the prospect of a trial before

a judge he dislikes could file a spurious misconduct complaint

against the judge, give an unflattering interview to the press, or

otherwise publicly rebuke the judge, and then seek his recusal?                      In

fact, “courts have typically rejected recusal motions based on ...

a litigant’s deliberate act of criticizing the judge or judicial

system.”      United States v. Owens, 902 F.2d 1154, 1156 (4th Cir.

1990).      The First Circuit once repeated Judge Charles Wyzanski’s

colorful comments on such a situation: “[I]t rather surprises me

that a person has any status at the end of the first half of the

game   to    suggest   that    the    referee,      who    was   qualified    at    the

beginning, is disqualified at the middle because in the meantime

the player has been cursing the referee outside of court.”                      In re

Union Leader Corp., 292 F.2d 381, 388 (1st Cir. 1961).                       See also

13A Charles Alan Wright et al., Federal Practice and Procedure

§   3542,    at    577-78     (2d    ed.   1984)     (“A    party    cannot     force

disqualification by attacking the judge and then claiming that

                                           8
these attacks must have caused the judge to be biased against

him ....”).

             Second, there is even less reason to think that a judge

would react impartially to a defendant represented by the Federal

Public Defender’s Office.       The judge knows that the client had no

choice of counsel and that no significant “punishment” could be

inflicted on counsel by treating the criminal defendant unfairly.

Moreover, the general rule is that disqualification motions should

focus on the appearance of partiality against the party, not

counsel.     See Davis v. Board of Sch. Comm’rs, 517 F.2d 1044, 1050,

1052 (5th Cir. 1975); see also 13A Federal Practice and Procedure

§   3542,   at   575-76.     That   rule   has   passed   unnoticed   by   the

majority.6

             Third,   the   panel’s   reasoning    provides   no   basis   for

believing that attorneys who testified in favor of Judge McBryde

should be treated differently from those who testified against him.

Partiality includes favoritism for, as well as antipathy against,

a party.     If a judge cannot be supposed to be impartial toward

those who testified against him, how could he not be equally

grateful to -- and favorably disposed toward -- any attorneys who

testified on his behalf?


      6
       The rule is a general one with exceptions. Potashnick v.
Port City Constr. Co., 609 F.2d 1101 (5th Cir. 1980), for example,
found the judge’s prior contacts with the plaintiff’s attorney
justified disqualification, but it involved much more egregious
circumstances than these cases.

                                      9
              The panel’s holding will allow some attorneys to get

unfavorable judges disqualified from their cases.           Simultaneously,

it will eliminate incentives for other attorneys to stand up for a

judge once allegations of misconduct are lodged against him, for

fear of having him disqualified from their future cases.              This is

nothing short of perverse and cannot be what Congress contemplated

when it created § 455(a).

              Where recusal could lead to so many problems and where

Judge McBryde was necessarily unaware of the ultimate conclusion of

the disciplinary proceeding, I would hold that it was not an abuse

of discretion for Judge McBryde not to recuse.


                                       II.

              Even if Judge McBryde’s failure to recuse himself were

error,   it    would   be   harmless   error.      My   colleagues   conclude

summarily that the error is “reversibl[e]” in both cases.               Their

method ignores the Supreme Court’s approval of harmless error

analysis in the § 455(a) context.            See Liljeberg v. Health Servs.

Acquisition Corp., 486 U.S. 847, 862, 108 S. Ct. 2194, 2203-04

(1988) (“There need not be a draconian remedy for every violation

of § 455(a).”).

              This court has generally applied a three-prong harmless

error test after finding a § 455(a) violation.            See, e.g., United

States v. O’Keefe, 128 F.3d 885, 892 (5th Cir. 1997), cert. denied,

118 S. Ct. 1525 (1998); Air Line Pilots Ass’n, Int’l v. Continental


                                       10
Airlines, Inc. (In re Continental Airlines Corp.), 901 F.2d 1259,

1263 (5th Cir. 1990).       That test involves weighing “(1) the risk of

injustice to the parties in this particular case, (2) the risk that

denial of relief will produce injustice in other cases, and (3) the

risk    of   undermining    the   public’s   confidence      in   the   judicial

process.”     O’Keefe, 128 F.3d at 891.       The full analysis shows that

the sentences here were harmless error.

             The risk of injustice to the parties is mitigated by the

appellate court’s ability to review the challenged decision. Here,

no abuse of discretion in sentencing is alleged, and in fact, no

error at all is alleged in regard to the guilty pleas or sentences

other than failure to recuse.        The parties’ rights were inherently

protected from arbitrariness by the Sentencing Guidelines.                   The

mere fact that the judge sentenced defendants beyond the minimum of

the Guidelines ranges does not imply partiality.             Given the easily

articulable explanations for greater-than-minimum sentences, it

cannot be     said   that   defendants     have   suffered    prejudice.      In

Anderson’s case, especially, there was no hint of prejudice: the

Guidelines range was narrow (only nine months’ variation) and the

probation officer had recommended an upward departure because

Anderson carried his two-year-old son in his arms as he robbed a

bank.    In Avilez-Reyes’s case, the Guidelines range was broader,

but Avilez-Reyes was sentenced in the lower half and there was

evidence to show that he had possessed more than 1.7 kilograms of

methamphetamine.      Allowing these sentences to stand creates no

                                      11
significant risk of injustice to the parties in these cases.

           There is also no risk of injustice in future cases

because, if the Judicial Council’s order stands, Judge McBryde is

required to recuse from cases involving these attorneys for three

years.   Furthermore, assuming, as the majority does, that there is

a § 455(a) violation here, district judges will not fail in the

future to recuse themselves from cases involving attorneys who

testify against them in judicial disciplinary proceedings.           Cf.

O’Keefe, 128 F.3d at 893 (“our decision aids ... justice in other

cases because it clarifies an unclear area of the law and serves as

a caution to district court judges”); O’Neill v. Continental

Airlines, Inc. (In re Continental Airlines), 981 F.2d 1450, 1463

(5th Cir. 1993); Air Line Pilots, 901 F.2d at 1263 (“rather, our

ruling here should serve as a caution to other judges [in the same

situation]”).

           Finally, there is little risk that public confidence in

the   judicial   process   would   be   undermined   by   allowing   the

defendants’ sentences to stand.         The Judicial Council’s much

publicized order should reassure the public that Judge McBryde

cannot visit retaliation upon those who testified against him.        In

these cases, to the contrary, only a legal technicality can cause

that fear of retaliation to “relate back” to the beginning of the

disciplinary proceedings, when it was not clear that the public

defenders’ testimony had more weight than any other out-of-court

criticisms or defenses of the judge.     It is likely that the public

                                   12
will see the panel’s needless vacatur of the defendants’ sentences

as a strike against the judicial process.      Cf. O’Keefe, 128 F.3d at

893 (“decisions that are based on technicalities and do not reach

the merits of the case increase public distrust of the legal

system”).

            Thus, under the three-prong harmless error analysis,

these sentences should stand.

            Even in Jordan, a case relied upon by my colleagues, the

court weighed different remedies,7 ultimately refusing to reverse

a conviction but vacating an “excessively harsh” sentence.        United

States v. Jordan, 49 F.3d 152, 158-59 (5th Cir. 1995).        In vacating

the sentence, the Jordan court highlighted both its “apparent

harshness” and the judge’s “unbridled sentencing discretion ... in

[that] pre-Guidelines case.”       Id. at 159.        By contrast, Judge

McBryde   sentenced   the   defendants   in   these   cases   within   the

Guidelines, and, as discussed above, there can be no argument that

his sentences were harsh.     No abuse of the sentencing prerogative

has been alleged by either defendant.


                                 III.

            The panel’s decisions in these cases needlessly pile on

the prior actions of the Judicial Council of the Fifth Circuit,

which has publicly reprimanded Judge McBryde and subjected him

     7
       The Jordan court did not apply the three-prong test that
other Fifth Circuit panels have used, but it did touch on many of
the same concerns.

                                  13
essentially to a temporary impeachment.   Not only did the Council

hold that the judge may be assigned no new cases for one year, but

it also purported to require Judge McBryde, for three years after

February 6, 1998, to recuse from all matters in his court involving

attorneys who testified against him in the disciplinary proceeding

(including the federal public defenders in these two cases).     The

propriety of the Council’s order is not an issue in these cases and

should not be a basis for the majority’s decision.    But whatever

the order’s propriety, it is an entirely different matter to

“sanction” Judge McBryde by enforced recusal after the disciplinary

proceedings have been concluded, than it is to use that sanction as

a basis for challenging his impartiality in decisions he made

before the outcome of the proceedings had been determined.       Many

accusations and charges were made against Judge McBryde, the exact

substance and nature of which are unclear, unspecified in the

public record, and unknown even by most members of the Fifth

Circuit.8   Nevertheless, as far as I am aware, no one has ever

     8
      In the lawsuit Judge McBryde has filed in the District Court
for the District of Columbia, he characterizes the testimony
against him as having focused on the following topics:

     Judge McBryde’s imposition of sanctions for litigation
     misconduct; his decisions to reject plea agreements; his
     practices with respect to settlement conferences; his
     criticisms of attorneys for lack of good faith compliance
     with rules and orders; his rulings in the Satz and Torres
     cases; and his procedural rulings at trial, such as the
     time allotted for opening statements and his rulings
     cutting off repetitive questioning.

Complaint ¶ 43, McBryde v. Committee to Review Circuit Council

                                14
questioned Judge McBryde’s integrity or his ability to render

decisions impartial to the parties before him.    If anything, the

substance of the allegations against him concerned alleged abuse of

all lawyers appearing in his court.   Ironically, what is public is

that one of the initial charges against Judge McBryde, later

apparently dropped, was that he investigated too vigorously the

actions of the government in regard to a criminal defendant and

intervened too actively to protect the defendant’s rights.

          Our court would be better off and would itself look more

impartial if we simply applied our pre-existing precedents to these

cases and affirmed the appellants’ sentences as having been imposed

well within the guidelines set by Congress through the United

States Sentencing Commission.

          I respectfully dissent.




Conduct and Disability Orders, No. 1:98CV02457 (D.D.C).
     Judge McBryde’s rulings in the Satz and Torres cases were at
the genesis of the judicial conduct proceeding. Judge McBryde’s
authority to make those rulings was upheld by this court in In re
McBryde, 117 F.3d 208 (5th Cir. 1997), cert. denied, 118 S. Ct.
2340 (1998).

                                15
