                                                            United States Court of Appeals
                                                                     Fifth Circuit
                                                                  F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                                                                   June 15, 2005
                        FOR THE FIFTH CIRCUIT
                                                              Charles R. Fulbruge III
                                                                      Clerk
                            No. 04-50196



UNITED STATES OF AMERICA,

                                                     Plaintiff-Appellee

versus

ROMAN GERARDO REA-TAPIA

                                                    Defendant-Appellant


           Appeal from the United States District Court
                 for the Western District of Texas
                         (No. 2:03-CR-75-1)



Before WIENER, DeMOSS, and PRADO, Circuit Judges.

PER CURIAM:*

     Defendant-Appellant    Roman     Gerardo   Rea-Tapia    appeals      the

district   court’s   inclusion   of   two   prior   convictions     in    the

calculation of his criminal history score and also challenges the

district court’s disposition of his motion for recusal. We affirm.

     In January 2003, Rea-Tapia pleaded guilty to two marijuana-

related charges. Rea-Tapia’s presentence report recommended a six-

point increase in his criminal history score, from zero to six

points, based on two prior federal misdemeanor convictions in 1994


     *
       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this opinion should not be published and is not precedent except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.
and 2001, respectively, also based on guilty pleas.              These six

points increased Rea-Tapia’s sentencing range from 37-46 months to

46-57 months under the U.S. Sentencing Guidelines.               Rea-Tapia

objected to the increase, arguing that use of the prior convictions

against him would violate the Sixth Amendment, because he had not

validly waived counsel in either case.          Rea-Tapia also asked the

district judge, Judge Ludlum, to recuse herself from his case,

because she had been an Assistant United States Attorney (“AUSA”)

in the office that had prosecuted one of his prior offenses.             Rea-

Tapia acknowledged that Judge Ludlum had not participated in his

prior prosecution but asked that she recuse herself to avoid even

the appearance of impropriety.

     Judge Ludlum denied Rea-Tapia’s request but selected another

district judge, Senior Judge Justice, to rule on Rea-Tapia’s

sentencing objections before Judge Ludlum sentenced him. Rea-Tapia

asked Judge Ludlum to reconsider her order and to transfer the case

completely to another district judge; however, she denied Rea-

Tapia’s motion, noting that case law did not require her to recuse

herself but that she had chosen to transfer just the question of

Rea-Tapia’s    prior   convictions       to   avoid   any   appearance     of

impropriety.

     After the sentencing objections were transferred to him, Judge

Justice overruled them.    He concluded that, even though Rea-Tapia

may not have received the advice required by the Supreme Court

before he sacrificed his right to counsel in 1994 and 2001, there

                                     2
had been no complete miscarriage of justice.    Judge Justice then

transferred the case back to Judge Ludlum, who included Rea-Tapia’s

two prior convictions in his criminal history score and sentenced

him to 48 months in prison and three years of supervised release on

each of the two counts, to run concurrently.

1.   Recusal

     Rea-Tapia argues that, even if Judge Ludlum was not required

to recuse herself, she effectively did so by transferring his case

“to avoid even the appearance of impropriety,” the grounds for

recusal under 28 U.S.C. § 455(a). Rea-Tapia contends that, once

recused, Judge Ludlum failed to follow proper recusal procedures,

including abstaining from entering any further orders in the case,1

and improperly choosing her successor judge rather than allowing

the case to be reassigned randomly.2   The government asserts that,

as Judge Ludlum was not required to recuse herself, her order

transferring a portion of Rea’s sentencing to another judge in the

same division was merely an exercise of her discretionary authority

     1
       See United States v. O’Keefe, 128 F.3d 885, 891 (5th Cir.
1997)(“Once a judge recuses himself from a case, the judge may
take no action other than the ministerial acts necessary to
transfer the case to another judge, even when recusal is
improvidently decided.”).
     2
       See McCuin v. Tex. Power & Light Co., 714 F.2d 1255, 1261
(5th Cir. 1983)(holding that, once recused, a judge may not
select his successor because to do so would “violate the
congressional command that the disqualified judge be removed from
all participation in the case,” and could also further compound
the appearance of impropriety by “creat[ing] suspicion that the
disqualified judge will select a successor whose views are
consonant with his.”).

                                3
to transfer a case.

     On this record, Judge Ludlum was not required to recuse

herself, either for actual or perceived bias.         Section 455(b) does

not require judges who formerly served as AUSAs in a division that

had prosecuted a defendant to recuse themselves if they did not

actually participate in the case.3       Even under § 455(a), which

requires judges    to   recuse   themselves    when   there   could   be   an

appearance of impropriety, there was no basis for Judge Ludlum to

recuse herself as she had no involvement in or knowledge of Rea-

Tapia’s prior conviction.4

     We need not decide whether Judge Ludlum’s transfer of a part

of the defendant’s sentencing to Judge Justice actually constituted

recusal rather than an ordinary transfer, however, because her

actions in transferring the case to Judge Justice for a limited

purpose and then sentencing the defendant after Judge Justice had

ruled on the defendant’s sentencing objections and returned the

case were harmless, if error at all.5         If a judge recuses himself

but wrongly takes further action in a case, we examine such further

actions to determine whether they pose “(1) [a] risk of injustice



     3
         Mangum v. Hargett, 67 F.3d 80, 83 (5th Cir. 1995).
     4
       See United States v. Di Pasquale, 864 F.2d 271, 279 (3d
Cir. 1988).
     5
       Although Judge Ludlum was not required to recuse herself,
if she had done so anyway, she would not have been permitted to
enter any orders after granting the defendant’s recusal motion.
See Doddy v. Oxy USA, 101 F.3d 448, 458 (5th Cir. 1996).

                                    4
to the parties in the particular case, (2) [a] risk that the denial

of relief will produce injustice in other cases, and (3) [a] risk

of undermining the public’s confidence in the judicial process.”6

     There was no perceivable risk of injustice to Rea-Tapia, as

Judge Ludlum was not required to recuse herself and Rea-Tapia does

not argue that she was actually partial or biased.7   The standard

of review also protects Rea-Tapia’s interests: We review de novo8

the ultimate issue in this appeal —— whether Rea-Tapia’s prior

convictions should have been counted in his criminal history score

—— which guarantees Rea-Tapia “a fair, impartial review of the

merits of the ruling.”9

     Neither is there a perceivable risk that our decision not to

vacate Judge Ludlum’s orders will result in injustice in future

cases.   As § 455 did not require Judge Ludlum to recuse herself,

our refusal to vacate in this case is in no way a signal to




     6
       Liljeberg v. Health Servs. Acquisition Corp., 486 U.S.
847, 864 (1988); O’Keefe, 128 F.3d at 892.
     7
       See Doddy, 101 F.3d at 458 (refusing to vacate post-
recusal order because, inter alia, the parties had produced no
evidence that the judge had any particular interest in the
outcome of the case, that she appeared partial, or that she was
actually biased or prejudiced).
     8
       United States v. Valdez-Valdez, 143 F.3d 196, 197-98 (5th
Cir. 1998).
     9
        Patterson v. Mobil Oil Corp., 335 F.3d 476, 485-86 (5th
Cir. 2003).

                                5
district courts that we are unwilling to enforce § 455.10

     Finally, we have no fear that our ruling today could undermine

the public’s confidence in the judicial process.              We are not

concerned that Judge Ludlum’s directed transfer to Judge Justice

exacerbated an appearance of bias as there is no suggestion that

any bias existed. And, as the government points out, Judge Justice

was the only other judge hearing cases in the Del Rio Division, so

there was no cherry picking of transferee judges.               Given our

ultimate de novo review of Rea-Tapia’s challenges, the lack of any

real appearance of impropriety or bias on the part of Judge Ludlum,

and the fact that vacating Judge Ludlum’s orders when we review de

novo whether the outcome was correct would be a waste of time and

judicial resources,11 Judge Ludlum’s orders, even if entered post-

recusal,    were   harmless   and   created   neither   prejudice   to   the

defendant nor damage to the reputation of the justice system.

2.   Uncounseled Prior Convictions

     We determine whether the sentencing guidelines apply to a

prior conviction de novo, and we review the district court’s

factual findings for clear error.12       The ultimate question whether


     10
       See Liljeberg, 486 U.S. at 868 (noting that risk of
injustice in future cases should be examined according to whether
the Court of Appeals is willing to enforce § 455).
     11
       See Doddy, 101 F.3d at 459 (“[O]verturning the many
decisions Judge Harmon made after vacating her recusal order ——
simply because she recused herself too hastily and in error ——
would be wasteful and unnecessary.”).
     12
          Valdez-Valdez, 143 F.3d at 197-98.

                                      6
Rea-Tapia knowingly and voluntarily waived his right to counsel is

also a legal one, which we review de novo.13

     The district court (Judge Justice) erred, first, by analyzing

Rea-Tapia’s claim as if he were a habeas petitioner collaterally

attacking    a    prior   conviction   under     Federal   Rule   of   Criminal

Procedure 11.       Under this standard, Rea-Tapia would have had to

demonstrate that the prior plea proceedings were either infected by

a complete miscarriage of justice caused by a constitutional

violation    or    inconsistent    with    the    basic    demands     of   fair

procedure.14      As the proceeding took place in direct criminal

sentencing and not in habeas corpus, however, Rea-Tapia was only

required to show by a preponderance of the evidence that his prior

convictions were uncounseled.15

     The district court also erred in its determination that Rea-

Tapia’s prior convictions were in fact uncounseled. It is apparent

that the magistrates who conducted Rea-Tapia’s 1994 and 2001 plea

colloquies fulfilled their duties by informing him “of the nature

of the charges against him, of his right to be counseled regarding

his plea, and of the range of allowable punishment attendant upon




     13
          United States v. Bethurum, 343 F.3d 712, 717 (5th Cir.
2003).
     14
          United States v. Timmreck, 441 U.S. 780, 783-84 (1979).
     15
       See United States v. Mares, 402 F.3d 511, 519 (5th Cir.
2005); United States v. Barlow, 17 F.3d 85, 89 (5th Cir. 1994).

                                       7
the entry of a guilty plea.”16 The factors we consider in assessing

the voluntariness of a waiver of counsel, including the defendant’s

background, age, experience,17 and the straight-forwardness of the

charge,18 also weigh in favor of finding that Rea-Tapia’s waiver was

voluntary.    In 1994, Rea-Tapia was 38 years old and had three prior

convictions, one of which was for the same crime with which he was

charged; in 2001 he was 45 with four prior convictions.      At both

proceedings, he faced sentencing for commission of a relatively

straightforward crime (illegal entry) carrying a correspondingly

brief sentence (180 days in prison).

     We recognize that Rea-Tapia’s conversation with his translator

prior to his 1994 plea colloquy —— in which the translator advised

Rea-Tapia that, if he requested a court-appointed attorney, he

would have to wait in jail until an attorney was appointed and

could post bond —— was improper.        Despite this inappropriate

exchange, we conclude that, under these circumstances, Rea-Tapia’s

1994 waiver of counsel was not so infected as to negate its

voluntariness.

     Inclusion of Rea-Tapia’s two prior convictions in his criminal

history score was appropriate.     The district court’s rulings are,

in all respects,

     16
          See Iowa v. Tovar, 541 U.S. 77, 81 (2004).
     17
          See United States v. Joseph, 333 F.3d 587, 590 (5th Cir.
2003).
     18
          Tovar, 541 U.S. at 88.

                                   8
AFFIRMED.19




     19
       We note that Rea-Tapia does not challenge his sentencing
under the United States Sentencing Guidelines or the use of his
prior convictions to enhance his sentence, under United States v.
Booker, 125 S.Ct. 738 (2005). Thus, any potential Booker
challenges are waived.

                               9
