                                                           [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                     FILED
                      FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                        ________________________ ELEVENTH CIRCUIT
                                                             AUGUST 5, 2009
                               No. 08-11201                 THOMAS K. KAHN
                           Non-Argument Calendar                CLERK
                         ________________________

                   D. C. Docket Nos. 07-00092-CR-RWS-1,
                             08-00015 CR-RWS

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                    versus

MICHAEL DISCH,

                                                           Defendant-Appellant.


                         ________________________

                  Appeal from the United States District Court
                     for the Northern District of Georgia
                       _________________________

                              (August 5, 2009)

Before MARCUS, PRYOR and ANDERSON, Circuit Judges.

PER CURIAM:

     Michael Disch appeals his convictions for mailing threatening
communication, in violation of 18 U.S.C. § 876(c), and making false statements to

an FBI agent, in violation of 18 U.S.C. § 1001. Disch argues that the district court

judge was required to recuse himself sua sponte under 28 U.S.C. § 455(a) and

§ 455(b).

      Ordinarily, we review a judge’s decision not to recuse himself under

§ 455(a) and § 455(b) for an abuse of discretion. United States v. Bailey, 175 F.3d

966, 968 (11th Cir. 1999); see also Parker v. Connors Steel Co., 855 F.2d 1510,

1527-28 (11th Cir. 1988) (holding that a § 455(b) violation is subject to harmless

error review). However, when a defendant fails to seek recusal of the district court

judge below, we review his recusal request for plain error. United States v. Berger,

375 F.3d 1223, 1227 (11th Cir. 2004). The standard for plain error review is as

follows:

      Under plain-error review, the defendant has the burden to show that
      there is (1) error (2) that is plain and (3) that affects substantial rights.
      If all three conditions are met, an appellate court may then exercise its
      discretion to notice a forfeited error, but only if (4) the error seriously
      affects the fairness, integrity, or public reputation of judicial
      proceedings.

United States v. Monroe, 353 F.3d 1346, 1349 (11th Cir. 2003) (internal citations

and quotation marks omitted). We have held that “where the explicit language of a

statute or rule does not specifically resolve an issue, there can be no plain error




                                            2
where there is no precedent from the Supreme Court or this Court directly

resolving it.” United States v. Chau, 426 F.3d 1318, 1322 (11th Cir. 2005).

      Under § 455, “a judge is under an affirmative, self-enforcing obligation to

recuse himself sua sponte whenever the proper grounds exist.” United States v.

Kelly, 888 F.2d 732, 744 (11th Cir. 1989). Section 455(a) instructs a federal judge

to disqualify himself if “his impartiality might be reasonably questioned,” and

§ 455(b) requires disqualification when any of the specific circumstances set forth

in that subsection exist, including when the judge “is a party to the proceeding,”

“has a personal bias,” or “has a financial interest in the subject matter in

controversy or in a party to the proceeding, or any other interest that could be

substantially affected by the outcome of the proceeding.” 28 U.S.C. § 455(a),

(b)(1), (b)(4), (b)(5)(i); United States v. Patti, 337 F.3d 1317, 1321 (11th Cir.

2003). A party may waive recusal under § 455(a), provided the waiver is preceded

by a full disclosure on the record of the basis of disqualification. 28 U.S.C. §

455(e). A judge, however, shall not accept a party’s waiver of recusal for any

ground arising under § 455(b). Id.

      Disch argues that the proper procedure for waiver was not followed in this

case because there was not “a full disclosure on the record of the basis of

disqualification.” We disagree and hold that Disch expressly waived his right to



                                            3
file a motion to have the district court judge removed and, therefore, cannot base

his appeal on § 455(a). Disch agreed to consolidate the charges against him and

proceed with sentencing in front of Judge Story. Judge Story considered whether

he needed to recuse himself and determined that such action was unnecessary.

Furthermore, Judge Story repeatedly explained to Disch that he had, and was

waiving, the right to seek recusal because of the potential conflict based on the

threatening letter Disch mailed to Judge Story’s chambers. Disch properly waived

any appeal under § 455(a).1

      We also hold that Disch did not meet his burden of showing that the district

court judge plainly erred by failing to disqualify himself under § 455(b). Disch

argues that the judge was a victim in the proceeding and, therefore, (1) qualified as

a “party to the proceeding” and (2) had a “financial interest” in the case because he

was entitled to mandatory restitution under 18 U.S.C. § 3663(A). We disagree.

      First, Disch did not offer any statute, rule or caselaw that has stated, and we

have never held, that a crime victim automatically is to be considered a “party to the



       1
               The government also contends that Disch invited the error by joining with the
government to consolidate both cases in front of Judge Story because of Disch’s desire to “get
things wrapped.” Invited error is implicated when a party induces or invites the district court
into making an error, and invited error typically precludes courts from reversing based on plain
error. United States v. Love, 449 F.3d 1154, 1157 (11th Cir. 2006). In addition to failing to
demonstrate plain error, Disch clearly invited the error by agreeing to have the cases
consolidated in front of Judge Story, failing to object or seek recusal, and voluntarily waiving the
argument for recusal at the sentencing hearing.

                                                 4
proceeding” under § 455(b)(5)(i) or otherwise. Next, nothing on the record shows

or even suggests that the judge suffered any physical harm or pecuniary loss, which

is a requirement for restitution under § 3663(A)(c).

      To the extent that a victim could be treated similarly to a party, it is not clear

that the judge was a victim of the crime Disch was sentenced for because Disch

pled guilty to making false statements to an FBI agent; he was not charged with

making a threat to Judge Story. Furthermore, Disch has made similar threats to

several judges, and it would make proceeding to sentencing nearly impossible if

Disch could continue to get each new judge recused by making a new threat.2 In

other words, the circumstances here make it apparent that Disch’s threats were

motivated by a desire to cause recusal.

      Disch failed to demonstrate that Judge Story’s decision not to sua sponte

recuse himself was a plain error, and Disch failed to demonstrate that any such error

affected the fairness or integrity of the judicial proceeding. Upon review of the

record and consideration of the parties’ briefs, we discern no reversible error.

Accordingly, we affirm.




       2
              It is also notable that Judge Story sentenced Disch in compliance with the plea
agreement. Even if there had been error, the error would have likely been harmless. Disch
presented no evidence of actual bias or that Judge Story treated Disch improperly because of the
threat.

                                               5
AFFIRMED.3




3
     Appellant’s request for oral argument is denied.

                                     6
