United States v. Eugene Leclear

• Court: Court of Appeals for the Fourth Circuit
• Decided: September 3, 2019
• Docket: 18-4857
• Status: Unpublished

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 18-4857

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

EUGENE ROBERT LECLEAR,

Defendant - Appellant.

Appeal from the United States District Court for the Northern District of West Virginia, at Wheeling. John Preston Bailey, District Judge. (5:18-cr-00035-JPB-JPM-1)

Submitted: August 1, 2019 Decided: September 3, 2019

Before NIEMEYER, FLOYD, and HARRIS, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Christopher J. Gagin, MCCAMIC, SACCO & MCCOID, PLLC, Wheeling, West Virginia, for Appellant. William J. Powell, United States Attorney, Randolph J. Bernard, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Wheeling, West Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit. PER CURIAM:

Eugene Robert LeClear appeals the 30-month sentence imposed by the district

court following his guilty plea to wire fraud, in violation of 18 U.S.C. § 1343 (2012).

LeClear argues that the district court judge improperly failed to notify LeClear of his

social media relationship with a restitution recipient 1 or to recuse himself based on that

relationship. LeClear also asserts that the district court imposed a procedurally and

substantively unreasonable sentence. We affirm.

We review LeClear’s recusal claim for plain error because LeClear did not move

for recusal in the district court. 2 Fed. R. Crim. P. 52(b); United States v. Minard,

856 F.3d 555, 557 (8th Cir. 2017) (stating standard of review); see United States v. Stitz,

877 F.3d 533, 536 (4th Cir. 2017) (providing standard), cert. denied, 138 S. Ct. 1572

(2018). LeClear asserts that there was an appearance of impropriety pursuant to

28 U.S.C. § 455(a) (2012), but he only cites the district court’s sentencing decisions and

the bare fact of the district court judge’s social media connections to a recipient of

restitution in this case. Standing alone, a social media connection or similar personal

contact does not merit recusal: “the more common a potentially biasing circumstances

and the less easily avoidable it seems, the less that circumstance will appear to a

knowledgeable observer as a sign of partiality.” United States v. DeTemple,

1 In his plea agreement, LeClear agreed to pay restitution to the recipient, who was not a victim of the offense of conviction, in exchange for dismissal of other charges. 2 LeClear’s due process rights were not violated by the district court’s failure to disclose his social media connection to the restitution recipient.

2 162 F.3d 279, 287 (4th Cir. 1998) (internal quotation marks omitted); see United States v.

Cherry, 330 F.3d 658, 666 (4th Cir. 2003); see also United States v. Stone, 866 F.3d 219,

230 (4th Cir. 2017) (in applying § 455(a), court’s consider “whether the judge’s

impartiality might be questioned by a reasonable, well-informed observer who assesses

all the facts and circumstances” (internal quotation marks omitted)). We conclude that

LeClear has not established plain error here.

Finally, “[w]e review a sentence for reasonableness ‘under a deferential

abuse-of-discretion standard.’” United States v. McCoy, 804 F.3d 349, 351 (4th

Cir. 2015) (quoting Gall v. United States, 552 U.S. 38, 41 (2007)). The district court

correctly calculated the advisory Sentencing Guidelines range and gave the parties an

opportunity to be heard. See Gall, 552 U.S. at 49-51. LeClear argues that the district

court inadequately selected and explained its chosen sentence. But the district court

specifically discussed the 18 U.S.C. § 3553(a) (2012) factors, the severity of the crime,

the effects on the victims, and the characteristics of LeClear’s offense conduct. Thus,

LeClear’s sentence is procedurally reasonable. See Rita v. United States, 551 U.S. 338,

356 (2007).

We next consider whether the sentence imposed is substantively reasonable under

“the totality of the circumstances, including the extent of any variance from the

Guidelines range.” Gall, 552 U.S. at 51. When a district court imposes a sentence

outside of the Guidelines range, we “must consider the extent of the deviation and ensure

that the justification is sufficiently compelling to support the degree of variance.” United

States v. Zuk, 874 F.3d 398, 409 (4th Cir. 2017) (internal quotation marks omitted). But

3 the district court need not find “extraordinary circumstances” to justify a deviation from

the Guidelines range. Gall, 552 U.S. at 47. In this case, the district court did not abuse

its discretion in concluding that LeClear’s extraordinary methods and effects on his

community justified an upward variance, and we conclude that LeClear’s sentence is

substantively reasonable.

Accordingly, we affirm the district court’s judgment. We dispense with oral

argument because the facts and legal contentions are adequately presented in the

materials before this court and argument would not aid the decisional process.

AFFIRMED