                                                                         F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                         August 14, 2007
                                 TENTH CIRCUIT                         Elisabeth A. Shumaker
                                                                           Clerk of Court


 U N ITED STA TES O F A M ER ICA,

               Plaintiff - Appellee,                     No. 06-2298
          v.                                                D. N.M .
 RA M ON CA M POS-GU EL,                           (D.C. No. CR-05-246-JC)

               Defendant - Appellant.



                            OR D ER AND JUDGM ENT *


Before KELLY, M U RPH Y, and O’BRIEN, Circuit Judges.




      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination

of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

      Ramon C ampos-Guel, a native and citizen of M exico, appeals from the

magistrate judge’s denial of his motion to dismiss for a violation of the Speedy

Trial Act and the district judge’s failure to recuse himself. W e affirm.


      *
        This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
                                  I. Background

      On October 22, 2004, Campos-Guel was arrested and a criminal complaint

was filed against him for illegal reentry after deportation subsequent to an

aggravated felony conviction in violation of 8 U.S.C. §1326(a)(1), (2) and (b)(2).

On October 25, 2004, Campos-Guel appeared for a preliminary detention hearing

and filed written waivers of his rights to a preliminary hearing, a grand jury

presentment within thirty days and of his arrest detention hearing. Campos-Guel

requested a seventy-five day continuance for the grand jury presentment making it

due 105 days after his arrest. He also requested the seventy-five days be

excludable time for the purposes of determining compliance with the speedy

indictment provisions of the Speedy Trial A ct. See 18 U.S.C. § 3161(b),

(h)(8)(A). The originally assigned magistrate judge entered an order granting

Campos-Guel’s requests.

      On February 3, 2005, Campos-Guel filed a “M OTION TO DISM ISS (For

Ruling Before a M agistrate),” in which he sought an order dismissing with

prejudice the criminal complaint filed against him because the government failed

to indict him within 105 days of his arrest. On February 8, 2005, 112 days after

his arrest, the government obtained an indictment against Campos-G uel. A

different magistrate judge denied Campos-Guel’s motion to dismiss as moot

because the indictment had by then been filed. Campos-Guel did not seek district

judge review of the magistrate judge’s order, did not renew his motion to dismiss

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the complaint with the district judge and did not move to dismiss the indictment.

      Campos-G uel was arraigned on February 17, 2005, and pled not guilty. A

jury trial was held on July 18, 2006. During cross examination of a government

witness, Campos-Guel’s attorney asked a series of questions regarding Campos-

Guel’s Alien Registration File. The district judge interrupted and the following

colloquy took place in the presence of the jury:

    THE COURT:          Could I just ask you a question?

    ATTORNEY:           Yes, sir.

    THE COURT:          How does all of this benefit the jury on this case?

    A TTORN EY :        Well, I’m hoping that the jury will see that when we
                        get to it, Your Honor.

    THE COURT:          W ell, when we get there, be sure I see it, too, because
                        I can’t figure it out yet.

    ATTORNEY:           All right. I’ll see if I can do that, Judge. Thank you.

    THE COURT:          Okay.

(R. Vol. III at 61-62; Supp. Vol. I at 129-30.) Once the jury was excused for

lunch, Campos-Guel’s attorney made a motion for mistrial based on the judge’s

comm ents. The district judge denied the motion.

      The jury returned a verdict finding Campos-Guel guilty as charged in the

indictment. On September 27, 2006, the district court sentenced Campos-G uel to

125 months imprisonment. After hearing from Campos-Guel’s attorney at the

sentencing hearing, the judge provided Campos-Guel an opportunity to speak

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before imposing sentence, but he declined. However, during the oral imposition

of his sentence, Campos-Guel’s attorney interrupted the judge to let him know

Campos-Guel wished to address the court. The following colloquy occurred:

    THE DEFENDANT:            W ell, can you please tell me, without
                              calling me “stupid” again, what is the
                              charge? W hat is the charge for which you
                              are giving me this time? W hat is the
                              charge?

    THE COURT:                W ell, I don’t think I ever called you
                              “stupid.” A nd your attorney can explain to
                              you what the charge is. I’ve got other
                              things to do than explain the charge to you.

    TH E DEFEN D A N T:       Y es, you did call me “stupid” when we
                              were in the trial.

    THE COURT:                Oh, well, that’s quite possible. That might
                              have been what I thought of you. And
                              nothing has changed since then.

    THE DEFENDANT:            Okay.

(R. Supp. Vol. II at 8.) Campos-G uel timely filed his notice of appeal.

                                  II. Discussion

A. M otion to D ismiss

      Campos-Guel appeals from the denial of his motion to dismiss claiming the

magistrate judge lacked authority to rule on his motion, even though it was

submitted “for ruling before a magistrate.” (R. Vol. I, Doc. 10.) Because

Campos-Guel never raised this issue with the magistrate judge or the district

court, he has forfeited it w ith this court. See Clark v. Poulton, 963 F.2d 1361,

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1367 (10th Cir. 1992) (“[A] magistrate judge’s lack of statutory authority is not a

jurisdictional defect, so any objection is waived if not raised.”).

B. Failure to Recuse 1

      Campos-Guel asserts the district court should have recused himself under

28 U.S.C. § 455(a) based on the comments made at trial and sentencing. 2 W here

defense counsel fails to move for recusal during trial, “we decide under a plain

error standard whether the district judge was so biased or reasonably appeared to

be so biased that we should order retrial with a different judge.” United States v.

Kimball, 73 F.3d 269, 273 (10th Cir. 1995). “Plain error occurs when there is (1)

error, (2) that is plain, which (3) affects substantial rights, and which (4)

seriously affects the fairness, integrity, or public reputation of judicial

proceedings.” United States v. Gonzalez-Huerta, 403 F.3d 727, 732 (10th Cir.)

(en banc), cert. denied, 126 S.Ct. 495 (2005).

      Campos-Guel argues the judge’s comments made during his cross

examination of the government’s witness went directly to the merits of his case

and the comments made during sentencing are reflective of an underlying



      1
          In his brief, Campos-Guel refers to this issue as a challenge to the district
court’s denial of his motion for mistrial. However, he argues only in terms of the
district court’s failure to recuse. W e review the substance of his arguments and
not the title.
      2
        28 U.S.C. § 455(a) states: “Any justice, judge, or magistrate judge of the
United States shall disqualify himself in any proceeding in which his impartiality
might reasonably be questioned.”

                                          -5-
personal antagonism towards him. He is wrong.

      [O]pinions formed by the judge on the basis of facts introduced or
      events occurring in the course of the current proceedings, or of prior
      proceedings, 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. Thus, judicial remarks during
      the course of a trial that are critical or disapproving of, or even
      hostile to, counsel, the parties, or their cases, ordinarily do not
      support a bias or partiality challenge. They may do so if they reveal
      an opinion that derives from an extrajudicial source; and they will do
      so if they reveal such a high degree of favoritism or antagonism as to
      make fair judgment impossible. . . . Not establishing bias or
      partiality, however, are expressions of impatience, dissatisfaction,
      annoyance, and even anger, that are within the bounds of what
      imperfect men and women, even after having been confirmed as
      federal judges, sometimes display. A judge’s ordinary efforts at
      courtroom administration -- even a stern and short-tempered judge’s
      ordinary efforts at courtroom administration -- remain immune.

Liteky v. United States, 510 U.S. 540, 555-56 (1994). Upon review of the trial

and sentencing transcripts, we cannot say the isolated instances pointed out by

Campos-G uel create an appearance of bias. Nor can we say the judge’s comments

lead us to question his impartiality. They fall within the ordinary efforts at

courtroom administration.

      A FFIR M .

                                                ENTERED FOR THE COURT

                                                Terrence L. O’Brien
                                                Circuit Judge




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