           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                   Fifth Circuit

                                                                            FILED
                                                                        September 8, 2008

                                     No. 07-60678                     Charles R. Fulbruge III
                                   Summary Calendar                           Clerk


UNITED STATES OF AMERICA

                                                  Plaintiff-Appellee
v.

MACK ARTHUR BOWENS

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                     for the Northern District of Mississippi
                              Case No. 2:00-CR-94-2

Before JOLLY, CLEMENT and HAYNES, Circuit Judges.
PER CURIAM:*
       Appellant Mack Arthur Bowens was convicted of various cocaine offenses
and sentenced to forty years in prison with five years of supervised release. On
direct appeal of his conviction and sentence, the United States Supreme Court
vacated the judgment and remanded to this court for consideration of sentencing
issues under United States v. Booker, 543 U.S. 220 (2005). This court then
remanded to the district court for further proceedings.




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                        No. 07-60678

      Upon remand, the district court imposed the same sentence and
supervised release term by amended judgment dated April 23, 2007. No direct
appeal of the district court’s judgment has been taken, and the time for such
appeal has passed. Fed. R. App. P. 4(b). On July 2, 2007, Appellant moved to
recuse the trial judge, Judge Pepper. Appellant’s requested relief was that
Judge Pepper recuse himself “from presiding or making a determination to [sic]
Bowens’ soon to be file[d] 2255 Motion.”1 That motion was denied on August 15,
2007. This appeal was then taken from that order. Because we conclude that
the district judge lacked jurisdiction to pass upon the merits of the recusal
motion, we similarly lack jurisdiction to decide its merits. As a result, the
district court order must be vacated, and this appeal dismissed.
      At the time Appellant filed the recusal motion, no matters were pending
before Judge Pepper. As to the trial, sentencing and criminal judgment, the
motion to recuse is untimely because it is too late. As to the contemplated
section 2255 motion, the motion to recuse is untimely because it is too early.
Either way, the trial court lacked jurisdiction to hear the motion. Both recusal
statutes require a “proceeding” pending before the judge sought to be recused.
28 U.S.C. §§ 144, 455. The term “proceeding” implies “the judge’s participation
in decisions affecting the substantive rights of the litigants to an actual case or
controversy.” United States v. Sciarra, 851 F.2d 621, 635 (3d Cir. 1988). No
proceeding was pending before Judge Pepper at the time of this motion. See
United States v. Day, 215 F. App’x 975 (11th Cir. 2007)(holding that the district
judge lacked power to hear a motion to recuse filed after judgment but before a
habeas petition was filed).
      Because the district court lacked jurisdiction to decide the merits of the
motion to recuse, we lack jurisdiction to review the merits, if any.                      The



      1
          Presumably, this reference is to a petition for habeas relief under 28 U.S.C. §2255.

                                               2
                                   No. 07-60678

appropriate disposition of this appeal, then, is to vacate the district court’s order
and dismiss the appeal. Scruggs v. Lowman, 392 F.3d 124, 129 (5th Cir. 2004);
United States v. Key, 205 F.3d 773, 774 (5th Cir. 2000). We express no opinion
about the merits of such a motion should a subsequent proceeding involving this
Appellant and this judge arise, but we caution counsel to recall his ethical
obligations not to file or perpetuate frivolous motions.
      Accordingly, the district court’s order denying the motion to recuse is
VACATED for want of jurisdiction, and this appeal is DISMISSED.




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