UNPUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 17-4760
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
AARON RICHARDSON, a/k/a Jit,
Defendant - Appellant.
No. 17-4761
CEDRIC GERARD COOK,
No. 17-4770
Plaintiff - Appellee, v.
LEO CHADWICK
No. 18-4023
LEWIS EDMOND ANDREWS, JR.,
No. 18-4024
RONNIE JEREMY THOMPSON
Appeals from the United States District Court for the Eastern District of North Carolina, at Wilmington. Terrence W. Boyle, Chief District Judge. (7:16-cr-00122-BO-7; 7:16-cr- 00122-BO-8; 7:16-cr-00122-BO-6; 7:16-cr-00122-BO-1; 7:16-cr-00122-BO-2)
2 Argued: September 18, 2019 Decided: December 12, 2019
Before WYNN, DIAZ, and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Joseph Bart Gilbert, TARLTON POLK PLLC, Raleigh, North Carolina; Michael W. Patrick, LAW OFFICE OF MICHAEL W. PATRICK, Chapel Hill, North Carolina; Camden Robert Webb, WILLIAMS MULLEN, Raleigh, North Carolina; Seth Allen Neyhart, STARK LAW GROUP, PLLC, Chapel Hill, North Carolina; M. Gordon Widenhouse, Jr., RUDOLF, WIDENHOUSE & FIALKO, Winston-Salem, North Carolina, for Appellants. Kristine L. Fritz, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee. ON BRIEF: G. Norman Acker III, First Assistant United States Attorney, Jennifer P. May-Parker, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
3 PER CURIAM:
Before us is a consolidated appeal arising from the sentencings of five Defendants-
Appellants: Aaron Richardson; Cedric G. Cook; Leo Chadwick; Lewis E. Andrews, Jr.;
and Ronnie J. Thompson. As part of a dogfighting-related investigation in eastern North
Carolina, all were charged with, and each pleaded guilty to, various federal dogfighting
and drug-trafficking offenses. Throughout their sentencing hearings, the district court
made several remarks related to dogs, dogfighters, and dogfighting. Eventually, the district
court sentenced each save one to an above-Guidelines sentence. On appeal, Defendants-
Appellants challenge the district court judge’s failure to sua sponte recuse himself and the
reasonableness of their sentences. For the following reasons, we affirm the district court’s
judgment as to each Defendant.
I.
In October 2015, federal and state authorities began a dogfighting investigation
focused on Onslow and Cumberland Counties in North Carolina. During this investigation,
authorities infiltrated that dogfighting community and so attended its various dogfights and
acquainted themselves with its participants. Among these participants were Defendants,
who were eventually arrested and charged with, most relevantly, violations of the Animal
Welfare Act, 7 U.S.C. §§ 2131–2159.
In time, each pleaded guilty to various offenses. Andrews, Chadwick, Cook, and
Thompson pleaded guilty to conspiracy to violate the Animal Welfare Act. Cook and
Richardson pleaded guilty to possessing an animal in an animal-fighting venture. Cook
4 and Thompson pleaded guilty to sponsoring and exhibiting an animal in an animal-fighting
venture. And Chadwick and Richardson pleaded guilty to possessing, training,
transporting, and delivering an animal in an animal-fighting venture and aiding and
abetting. Lastly, Andrews pleaded guilty to distributing a quantity of heroin and aiding
and abetting, and Cook pleaded guilty to attending an animal-fighting venture.
At their sentencing hearings in the Eastern District of North Carolina, Defendants’
involvement with dogfighting was described. 1 To different degrees, all had long owned,
bred, and trained dogs; participated in dogfights; possessed dogfighting paraphernalia; and
engaged in local and online dogfighting communities. Executing search warrants,
authorities seized not only dogs but also veterinary supplies, medicine, training tools, and
fighting-dog pedigrees from Defendants’ properties. Particularly, sixty-four dogs were
seized from Andrews’s property; thirty-three dogs were seized from Chadwick’s property;
thirty-two dogs were seized from Richardson and Thompson’s property; and twenty-three
dogs were seized from Cook’s property.
At Defendants’ hearings, the government presented evidence of Defendants’
dogfighting operations. Testimony by a government witness described Chadwick’s
property, which exemplified a “typical dog yard”: dozens of dogs were kept about “a foot”
apart, housed in “half barrels cut [out] to be homes,” and chained to “large, metal pipe[s]
1 These facts are drawn from the district court’s written orders as to each Defendant; those orders, in turn, drew from the Presentence Investigation Report prepared for each Defendant. Defendants did not object to the factual information in the reports, and the district court adopted them.
5 or tire iron[s]” with heavy chains. J.A. 837–38. Pictures illustrated not only kennels
“completely covered with feces, urine[,] and some type of worm,” J.A. 852, but also the
recovered dogs’ injuries, like puncture wounds that “ooz[ed]” blood and scarring “on their
legs, their ears, the top of their head, around their throat, [and] their muzzle,” J.A. 848.
Videos depicted behavioral tests in which recovered dogs bit stuffed dogs “so hard that
[they] cause[d] [themselves] to bleed.” J.A. 857. And reports explained how many of the
recovered dogs were euthanized because they were too aggressive to rehome. Still other
evidence was physical: large collars, weighted chains, and blood-covered training tools
were also presented at the hearings.
The sentencing judge’s remarks during these hearings form a large part of this
appeal. As most relevant here, while discussing perceptions of certain dog breeds, the
judge stated 2: “We know from antidotes [sic], not part of this case but part of the facts or
folklore you can take into judicial notice, that if a child might wander into an unprotected
area that sometimes a child is mauled and killed by pit bulls.” J.A. 842. Replying to the
government witness’s statement that fighting dogs are not typically taken to public places,
like dog parks, the judge noted: “They’re hiding them because they’re criminal dogs.” J.A.
858. And after the close of the government’s evidence as to Chadwick—after testimonial,
visual, and physical evidence was presented—and following Chadwick’s counsel’s
argument for a sentence “around the guideline range,” J.A. 891, the judge replied: “Either
2 The sentencing judge made other similar remarks, but the ones quoted here are representative of the rest.
6 the dogs have to be eliminated from the world or the people who fight the dogs or both . . .
I’ll try to be reasonable and be proportional with the sentence, but I find . . . the guideline
to grossly under-represent society’s need for protection . . . .” J.A. 892. Defendants never
objected to the sentencing judge’s statements nor sought his recusal.
Finally, the judge sentenced each Defendant. Neither the government nor
Defendants objected to the following advisory Guidelines ranges: Thompson to 24–30
months; Chadwick to 12–18 months; Cook to 15–21 months; Richardson to 12–18 months;
and Andrews to 87–108 months. The judge, however, sentenced Defendants as follows:
for Thompson, Chadwick, Cook, and Richardson, he imposed above-Guidelines sentences
of 48, 60, 45, and 96 months, respectively; for Andrews, he imposed a within-Guidelines
sentence of 108 months.
These timely appeals followed, which were consolidated for our review.
II.
First, Defendants contend that the sentencing judge’s strong, personal feelings about
pit bulls and dogfighting required the judge’s sua sponte recusal from sentencing them.
Because Defendants’ did not preserve this recusal argument, we review only for
plain error. See Flame S.A. v. Freight Bulk Pte. Ltd., 807 F.3d 572, 592 (4th Cir. 2015);
see also Fed. R. Crim. P. 52(b). Under this standard of review, Defendants must show that
an error occurred, that it was plain, and that it affected their substantial rights. United
States v. Rooks, 596 F.3d 204, 212 (4th Cir. 2010) (citing United States v. Olano, 507 U.S.
725, 732 (1993)). Even if a plain error exists, we have the discretion to correct it, which
7 we may exercise if it “seriously affects the fairness, integrity, or public reputation of
judicial proceedings.” Id. (internal quotation marks omitted) (quoting Olano, 507 U.S. at
732).
As an initial matter, it is helpful to disentangle two related—but distinct—threads
of law governing judicial recusal. Recusal may be required under either the Due Process
Clause or federal recusal statutes. Yet Defendants apparently conflate constitutional and
statutory recusal doctrine, discussing precedent pertaining to each to make a general point
about the sentencing judge’s purported bias. For instance, Defendants begin by quoting
28 U.S.C. § 455, a federal recusal statute. But they then cite both precedent construing that
statute and precedent involving constitutional recusal doctrine in arguing that the judge
was required to sua sponte recuse himself—without ever clearly stating whether the judge
should have done so on constitutional grounds, statutory grounds, or both. This is
understandable, as a judge’s conduct and its appearance to others is often the crux of the
inquiry under both doctrines.
But the “Due Process Clause demarks only the outer boundaries of judicial
disqualifications.” Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 889 (2009) (quoting
Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813, 828 (1986)). In fact, most recusal questions
are “answered by common law, statute, or the professional standards of the bench and bar.”
Bracy v. Gramley, 520 U.S. 899, 904 (1997). So though “there may certainly be areas”
where constitutional and statutory requirements overlap, a statutory violation “does not
automatically mean the defendant was denied constitutional due process.” Davis v. Jones,
506 F.3d 1325, 1336 (11th Cir. 2007).
8 Mindful of these principles, we consider constitutional recusal dictates first before
turning to the statutory ones. 3
A.
Under the Due Process Clause, recusal is required when “the probability of actual
bias on the part of the judge or decisionmaker is too high to be constitutionally tolerable.”
Rippo v. Baker, 137 S. Ct. 905, 907 (2017) (quoting Withrow v. Larkin, 421 U.S. 35, 47
(1975)). We ask “not whether a judge harbors an actual, subjective bias, but instead
whether, as an objective matter, the average judge in his position is likely to be neutral, or
whether there is an unconstitutional potential for bias.” Williams v. Pennsylvania, 136 S.
Ct. 1899, 1905 (2016) (internal quotation marks omitted) (quoting Caperton, 556 U.S. at
881). An unconstitutional failure to recuse is structural error and thus not amenable to
harmless-error review. Williams, 136 S. Ct. at 1909–10.
Because “most matters relating to judicial disqualification [do] not rise to a
constitutional level,” Caperton, 556 U.S. at 876 (alteration in original) (quoting FTC v.
Cement Inst., 333 U.S. 683, 702 (1948)), it is the “extraordinary situation where the
Constitution requires recusal,” id. at 887. These situations may be largely categorized as
instances when an extraordinary financial interest exists between a judge and a litigant,
3 Though Defendants’ recusal argument did not clearly demarcate constitutional from statutory doctrine, “we are not bound by the parties’ characterization of the legal principles,” and we may “recast appellate arguments . . . to more accurately reflect their nature.” United States v. Engle, 676 F.3d 405, 415 n.5 (4th Cir. 2012). In the interest of analytical clarity, we discuss each separately here.
9 see, e.g., Caperton, 556 U.S. at 884 (requiring recusal of elected state court judge in case
involving corporation whose CEO had contributed about $3 million to judge’s election
campaign following lower court’s entry of $50 million judgment against corporation when
it was likely that corporation would seek review in state supreme court), when a judge acts
as a significant part of the accusatory process before presiding over the accused’s trial, see,
e.g., Williams, 136 S. Ct. at 1903 (requiring recusal of judge before whom defendant
appeared seeking relief from a death sentence where the judge had, as district attorney,
given approval to seek death penalty against defendant); In re Murchison, 349 U.S. 133,
136 (1955) (requiring recusal of judge when judge acts as a “one-man grand jury” by
hearing testimony qua grand jury, presiding over contempt hearing of grand jury witnesses
qua judge, and holding grand jury witnesses in contempt for their conduct before judge qua
grand jury), or when a judge is involved in a running, bitter controversy with a litigant, see,
e.g., Mayberry v. Pennsylvania, 400 U.S. 455, 465 (1971) (requiring recusal of judge in a
litigant’s contempt trial when that litigant continuously, “cruelly slandered” the judge).
Simply put, an extraordinary situation is not before us. For one, no constitutional
potential for bias exists. There was no actual or apparent financial interest between the
parties and the sentencing judge; the sentencing judge had no financial stake in the
outcomes of these cases. Nor did the judge participate in the accusatory process by, say,
acting as a one-person grand jury. Cf. In re Murchison, 349 U.S. at 136. And, given the
vivid photos, videos, and testimony about dogfighting, the judge’s remarks are better
characterized as “expressions of impatience, dissatisfaction, annoyance, and even anger,”
see Liteky v. United States, 510 U.S. 540, 555–56 (1994), rather than an indication that the
10 judge is embroiled in a running, bitter controversy with Defendants, cf. Mayberry, 400 U.S.
at 465. Further still, the average judge in a position such as this—that is, selected to preside
over a multiple-defendant sentencing, exposed to perturbing evidence in the course of so
presiding, yet having no connections to Defendants otherwise—is objectively likely to be
neutral. All told, the sentencing judge’s conduct below—injudicious though it was—did
not amount to an extraordinary situation that constitutes a violation of due process.
B.
We turn next to Defendants’ argument that 28 U.S.C. § 455 required the sua sponte
recusal of the sentencing judge.
Though “a framework of interlocking statutes” governing recusals exists, Belue v.
Leventhal, 640 F.3d 567, 572 (4th Cir. 2011), at issue here is 28 U.S.C. § 455. Under
subsection 455(a), all “judge[s] of the United States” must “disqualify [themselves] in any
proceeding in which [their] impartiality might reasonably be questioned.” 28 U.S.C.
§ 455(a); see also Belue, 640 F.3d at 572. And subsection 455(b), in contrast to subsection
455(a)’s general dictate, enumerates specific instances requiring recusal, the first of which
is relevant here: Judges must recuse themselves when they have “a personal bias or
prejudice concerning a party, or personal knowledge of disputed evidentiary facts
concerning the proceeding.” § 455(b)(1).
The terms “impartiality” and “bias or prejudice” connote instances of partiality or
opinions that are “somehow wrongful or inappropriate.” Liteky, 510 U.S. at 550–52
(emphases omitted). Generally, the bias or prejudice required for recusal under subsections
11 455(a) and 455(b)(1) originates from “a source outside the judicial proceeding at hand.”
Id. at 545. Yet the key inquiry is broader, for “opinions 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.” Id. at
555.
This is a “high bar for recusal.” Belue, 640 F.3d at 574. So judicial remarks that
are “critical or disapproving of, or even hostile to, counsel, the parties, or their cases,” do
not typically suffice. Liteky, 510 U.S. at 555. And judicial remarks that express
“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” virtually never establish bias or partiality. Id. at 555–56; see, e.g., Sentis Grp.,
Inc. v. Shell Oil Co., 559 F.3d 888, 904–05 (8th Cir. 2009) (requiring recusal when judge
“directed profanities at Plaintiffs or Plaintiffs’ counsel over fifteen times” and barred
plaintiffs from arguing at sanctions hearing).
Defendants have not met this high bar. For one, most of the sentencing judge’s
remarks were based on facts that the judge learned during the sentencing hearings, which
“almost never constitute a valid basis for a bias or partiality motion.” Belue, 640 F.3d at
573 (internal quotation marks omitted) (quoting Liteky, 510 U.S. at 555).
More fundamentally, however, the entire record clarifies that the sentencing judge’s
challenged remarks were “expressions of impatience, dissatisfaction, annoyance, and even
anger.” Liteky, 510 U.S. at 555–56. The sentencing judge’s remarks made at the beginning
12 and throughout most of the sentencing hearings here were straightforward statements
uttered in many a sentencing hearing. Yet as the hearings—and the presentation of
evidence—continued, the judge’s remarks became more indecorous. Indeed, the judge’s
most injudicious remarks—“Either the dogs have to be eliminated from the world or the
people who fight the dogs or both, but there needs to be an intervention by the law and . . .
I’ll try to be reasonable and be proportional with the sentence . . . .” J.A. 892—were uttered
some seventy-one pages into the transcript of the sentencing hearings. These remarks
occurred after the presentation of perturbing testimony, photos, videos, and physical
evidence. Viewed thusly, the sentencing judge’s remarks are properly characterized as
expressions of impatience, dissatisfaction, annoyance, or anger at Defendants and their
involvement in dogfighting. Cf. Liteky, 510 U.S. at 550–51 (“The judge who presides at a
trial may, upon completion of the evidence, be exceedingly ill disposed towards the
defendant, who has been shown to be a thoroughly reprehensible person. But the judge is
not thereby recusable for bias or prejudice . . . .”).
What is more, the entirety of the sentencing judge’s conduct undermines
Defendants’ argument. Throughout the hearings, the judge not only stated that he would
consider each Defendant’s case on its own merits but also stated that he had tried to “make
each sentence fit the particular characteristics of the crime and the defendant’s background
and criminal history.” J.A. 1142. And he granted Defendants’ requests to recommend they
be placed in certain prisons or drug-rehabilitation programs. Further still, the judge denied
the government’s motion to upwardly vary Andrews’s sentence “for the purposes of
proportionality” and “consisten[cy]” with his co-Defendants’ sentences. J.A. 1114. Taken
13 as a whole, the judge’s conduct does not evince a deep-seated antagonism that would make
fair judgment impossible.
In support of their recusal argument, Defendants chiefly rely on Berger v. United
States, 255 U.S. 22 (1921), and United States v. Lefsih, 867 F.3d 459 (4th Cir. 2017). Yet
those cases cannot bear the weight Defendants wish to place on them. In Berger, a World
War I espionage case involving German-American defendants, the Supreme Court
concluded that a district judge was impermissibly biased when he stated: “One must have
a very judicial mind, indeed, not to be prejudiced against the German Americans in this
country. Their hearts are reeking with disloyalty.” 255 U.S. at 28. But that is not all he
said. Immediately thereafter, he stated: “This defendant is the kind of a man that spreads
this kind of propaganda, and it has been spread until it has affected practically all the
Germans in this country.” Id. at 28–29. He also said: “If anybody has said anything worse
about the Germans than I have I would like to know it so I can use it,” id. at 28, and “I
know a safe-blower, he is a friend of mine, who is making a good soldier in France. He
was a bank robber for nine years . . . and as between him and this defendant, I prefer the
safeblower,” id. at 29. And he said all of this before trial began. Id. at 27. The timing,
vitriol, and directness of the district court judge’s statements in Berger significantly differ
from the sentencing judge’s remarks here.
Nor does Lefsih succor Defendants’ argument. There, the district court judge’s
“sustained, one-sided, and in the context of this short and uncomplicated trial, wholly
gratuitous” questions and comments in an immigration-fraud case were plain error
requiring reversal. 867 F.3d at 469. Critically, the judge in Lefsih uttered those remarks
14 before a jury; there, he not only critiqued the federal program at issue but also impugned
that defendant’s credibility before he even took the stand. Id. at 469–70. Here, no jury
heard the challenged remarks, so Lefsih is therefore inapposite.
“Litigation is often a contentious business, and tempers often flare.” Belue, 640
F.3d at 575. This observation may be true here—a matter involving photos of emaciated
dogs with oozing wounds, videos of dogs so aggressive that they cause themselves to bleed
while biting stuffed dogs, and testimony describing how scores of dogs were euthanized
because they could not be rehomed safely. But this “is not to say judicial distemper is
somehow admirable. It is not.” Id. at 574. Judges are oathbound to deliver justice in every
case before them. Recusal doctrine recognizes that “trial judges make some of the most
difficult calls on some of the most volatile matters in our system.” Id. at 576. Our analysis
here does nothing other than recognize that fact.
III.
Our conclusion that Defendants’ recusal argument lacks merit does not end this
matter, however, for Defendants also argue that their sentences were unreasonable.
“We review all sentences—whether inside, just outside, or significantly outside the
Guidelines range—under a deferential abuse-of-discretion standard.” United States v.
Blue, 877 F.3d 513, 517 (4th Cir. 2017) (internal quotation marks omitted) (quoting Gall
v. United States, 552 U.S. 38, 41 (2007)). Our inquiry is twofold: first, we review for
procedural reasonableness; then, we review for substantive reasonableness. Id.
15 Procedural reasonableness concerns the process used to impose a sentence. For a
sentence to be procedurally reasonable, a district court must first correctly calculate the
applicable Guidelines range. Id. Then, it must allow the parties to argue for “whatever
sentence they deem appropriate and consider those arguments in light of all the factors
stated in 18 U.S.C. § 3553(a).” Id. at 517–18 (internal quotation marks omitted) (quoting
United States v. Hernandez, 603 F.3d 267, 270 (4th Cir. 2010)). After that, it must
individually assess each defendant’s facts and arguments and impose an appropriate
sentence. Id. at 518. Lastly, a district court “must adequately explain the chosen sentence
to allow for meaningful appellate review and to promote the perception of fair sentencing.”
Id. (internal quotation marks omitted) (quoting Gall, 552 U.S. at 50).
Substantive reasonableness, by contrast, concerns a sentence’s length in light of the
statutory sentencing scheme. For a sentence to be substantively reasonable, we examine
“the totality of the circumstances to see whether the sentencing court abused its discretion
in concluding that the sentence it chose satisfied the standards set forth in § 3553(a).”
United States v. Gomez-Jimenez, 750 F.3d 370, 383 (4th Cir. 2014) (quoting United States
v. Mendoza-Mendoza, 597 F.3d 212, 216 (4th Cir. 2010)). We “must give due deference
to the district court’s decision that the § 3553(a) factors, on a whole, justify” the sentence,
Gall, 552 U.S. at 51, and the fact that we would have reached a different sentencing result,
without more, is insufficient to reverse the district court, United States v. Pauley, 511 F.3d
468, 474 (4th Cir. 2007).
Though Defendants raise several arguments unique to each, one common argument
made is that Defendants’ sentences are procedurally unreasonable because the district court
16 did not individually assess each Defendant’s facts and arguments. In support of this
argument, Defendants essentially make two claims.
First, Defendants argue that, in sentencing them, the district court’s reasoning was
“generic.” Put differently, Defendants argue that the reasons that the district court gave in
sentencing them were reasons that any court could give in sentencing any dogfighter. In
support, they point to the similar language in each written order as well as United States v.
Miller, 601 F.3d 734, 739 (7th Cir. 2010), in which the Seventh Circuit stated that an above-
Guidelines sentence is more likely to be reasonable if it is based on the particulars of the
case rather than “factors common to offenders with like crimes.” This is wide of the mark.
For one, the scale and extent of Defendants’ involvement in dogfighting is unlike an
average offender with a like crime—someone who had just, for instance, participated in a
dogfight once. Defendants were extensively involved in dogfighting, with some breeding,
raising, and training dogs for years. What is more, the district court stressed its obligation
“to reach a sentence that’s proportional and relevant to each particular defendant in this
multi-defendant case,” J.A. 924, evincing its individual consideration of each Defendant.
And, perhaps most commonsensically, Defendants’ sentences stem from a single
dogfighting investigation. So each order’s similar language strikes us less as generic
reasoning and more as a consequence of a matter involving a common set of facts.
Second, Defendants argue that the district court failed to address their nonfrivolous
arguments for reduced sentences, citing United States v. Blue, 877 F.3d 513 (4th Cir. 2017).
Here, the sentencing judge’s engagement with the parties and their arguments during the
sentencing hearings and in the written orders convince us that this standard is satisfied. As
17 to the remaining procedural and substantive reasonableness challenges that Defendants
bring, we have thoroughly reviewed the record and considered Defendants’ contentions,
and we are satisfied that each sentence imposed is procedurally and substantively
reasonable.
IV.
For the foregoing reasons, the judgment of the district court as to each Defendant is
AFFIRMED.