United States v. Saavedra

• Court: Court of Appeals for the Tenth Circuit
• Decided: February 29, 2024
• Docket: 22-2149
• Status: Unpublished

Opinion

Appellate Case: 22-2149 Document: 010111007401 Date Filed: 02/29/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT February 29, 2024 _______________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee, No. 22-2149 v. (D.C. No. 1:22-CR-00636-PJK-1) (D. N.M.) FERMIN SAAVEDRA,

Defendant - Appellant. ___________________________________________

ORDER AND JUDGMENT * _________________________________________

Before BACHARACH, BRISCOE, and MORITZ, Circuit Judges. ___________________________________________

In this appeal, we address the tension from judges’ dual ethical

obligations. Judges must recuse when the public can reasonably question

their impartiality and otherwise must sit on the case. See 28 U.S.C.

§ 455(a) (duty to recuse); Nichols v. Alley, 71 F.3d 347, 351 (10th Cir.

1995) (duty to sit). The tension arose here when a judge was assigned a

* The parties haven’t requested oral argument, and it would not help us decide the appeal. So we have decided the appeal based on the record and the parties’ briefs. See Fed. R. App. P. 34(a)(2)(C); 10th Cir. R. 34.1(G).

This order and judgment does not constitute binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel. But the order and judgment may be cited for its persuasive value if otherwise appropriate. See Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A). Appellate Case: 22-2149 Document: 010111007401 Date Filed: 02/29/2024 Page: 2

criminal matter where he had a professional relationship with the victims’

employer. The judge declined to recuse, and we see no error.

The crime involved an assault on two probation officers working in

the probation office for the District of New Mexico. See 18 U.S.C.

§ 111(a)(1). The chief judge drew the case, but recused and issued an order

stating that “all judicial officers for the District of New Mexico” must

recuse. R. vol. 1, at 9. The chief judge then immediately transferred the

case to Judge Paul Kelly.

Judge Kelly is a senior judge of the U.S. Court of Appeals for the

Tenth Circuit. To assist the district, Judge Kelly volunteers his time to

preside over cases in the District of New Mexico.

When the chief judge transferred the case to Judge Kelly, the

defendant (Mr. Fermin Saavedra) asked Judge Kelly to reconsider the

transfer order. Mr. Saavedra argued that Judge Kelly was subject to the

same concerns that had driven the chief judge’s recusal order. Judge Kelly

declined to reconsider the transfer order and sentenced Mr. Saavedra to the

top of the guideline range (33 months). Mr. Saavedra appeals, arguing that

Judge Kelly

 failed to provide an explanation for declining to recuse and

 should have recused to prevent the appearance of bias.

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The government argues that an appeal waiver applies. We can assume

for the sake of argument that the appeal waiver doesn’t apply because

Mr. Saavedra’s appellate arguments would fail on the merits.

Mr. Saavedra points out that Judge Kelly didn’t provide a reason to

deny the motion to reconsider. Judges must ordinarily explain their denial

of a motion to recuse. See United States v. Greenspan, 26 F.3d 1001, 1007

(10th Cir. 1994) (stating that “the judge must document the reasons for his

or her decision” on recusal). When the judge doesn’t provide an

explanation, we conduct de novo review. See Sac & Fox Nation of Okla. v.

Cuomo, 193 F.3d 1162, 1168 (10th Cir. 1999) (stating that “because the

judge in this case did not create a record or document her decision not to

recuse, we review the denial de novo”). 1

Conducting de novo review, we must consider whether “the

reasonable person, were he to know all the circumstances, would harbor

doubts about the judge’s impartiality.” United States v. Mobley, 971 F.3d

1187, 1205 (10th Cir. 2020). Under this standard, we conclude that Judge

Kelly didn’t err in declining to recuse.

Mr. Saavedra asked Judge Kelly to recuse only on the ground that he

was subject to the chief judge’s order recusing all judicial officers of or for

1 Mr. Saavedra agrees that we apply de novo review in light of Judge Kelly’s lack of explanation. Appellant’s Reply Br. at 1 n.1.

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the district. But the chief judge obviously didn’t agree: He transferred the

case to Judge Kelly soon after entry of the order recusing all the judicial

officers for the district.

Mr. Saavedra argues that the reasoning behind the chief judge’s

recusal order would also have applied to Judge Kelly. But the chief judge

said only that his recusal order was “consistent with District wide

practices.” R. vol. 1, at 9. We have no way of knowing what those

practices were or why they might have applied to Judge Kelly.

Without an explanation for the recusal order, we infer that the chief

judge didn’t intend for it to cover Judge Kelly. After all, why would the

chief judge have transferred the case to Judge Kelly if he would have been

subject to the same concerns underlying the recusal of all the district

judges?

Mr. Saavedra argues that Judge Kelly is a “judicial officer” for the

District of New Mexico and has often used probation officers in criminal

cases. For this argument, Mr. Saavedra points out for the first time on

appeal that Judge Kelly has sentenced at least 25 criminal defendants in

the District of New Mexico. But regardless of those ties to New Mexico,

the chief judge transferred the case to Judge Kelly right after announcing

the recusal of all judicial officers for the District of New Mexico. Given

the timing of the transfer order, the chief judge didn’t appear to regard

Judge Kelly as a judicial officer for the District of New Mexico.

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Mr. Saavedra points out that Judge Kelly was designated to the

district and often held court there. But this designation did not make

Judge Kelly a “judicial officer” for the District of New Mexico. See, e.g.,

18 U.S.C. § 3141(b) (distinguishing between a “judicial officer of a court

of original jurisdiction over an offense” and a “judicial officer of a Federal

appellate court”). And Judge Kelly’s contribution to the district court’s

work did not make him a “judicial officer” for the District of New

Mexico. 2 Though Judge Kelly helped the district court, he is not subject to

the same rules as the district judges recused by the chief judge’s order. So

Judge Kelly was not subject to the chief judge’s recusal order. 3

Mr. Saavedra also argues that even without the chief judge’s recusal

order, Judge Kelly should have recused based on his professional

relationship with the probation office.

2 Mr. Saavedra says that an objective observer would interpret the district court’s website to say that Judge Kelly is a judicial officer for the District of New Mexico. Appellant’s Reply Br. at 7 n.3. But the appellate record contains no information from the website. See, e.g., Anthony v. United States, 667 F.2d 870, 875 (10th Cir. 1981) (stating that judicial review is limited to evidence in the record). 3 Mr. Saavedra says that Judge Kelly arbitrarily revisited the chief judge’s recusal order that disqualified him. Because Judge Kelly revisited the order, Mr. Saavedra says that he was entitled to notice and an opportunity to be heard on the new ruling. Appellant’s Opening Br. at 11– 12. We disagree: Judge Kelly didn’t revisit the chief judge’s recusal order, and no one needed to tell Mr. Saavedra in advance that Judge Kelly would get the case.

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The appearance of impartiality may be affected by a judge’s

relationships with participants in the case. The participants include not

only parties and counsel, but also individuals who may be affected by the

outcome (like the victim in a criminal case) or who assist the judge (like

clerks, probation officials, or federal marshals). When these relationships

are involved, the court engages in a fact-intensive inquiry into the

appearance to a reasonable observer. See Nichols v. Alley, 71 F.3d 347, 351

(10th Cir. 1995) (per curiam) (stating that recusal decisions under [28

U.S.C.] § 455(a) “are extremely fact driven”).

Here we address a judge’s professional relationship with the victim

of a crime. Courts don’t ordinarily require “disqualification of a single

judge . . . simply because of a professional relationship with a victim.”

Clemens v. U.S. Dist. Ct. for the Cent. Dist. of Cal., 428 F.3d 1175, 1180

(9th Cir. 2005); see United Stats v. Angelus, 258 F. App’x 840, 843 (6th

Cir. 2007) (unpublished) (stating that disqualification isn’t required just

because the judge has a working professional relationship with the victim);

see also Richard E. Flamm, Judicial Disqualification: Recusal &

Disqualification of Judges § 25.7, at 418 (3d ed. 2017) (“Disqualification

is . . . unlikely to be deemed to be warranted merely because a crime

victim is or was related to another judge; or to a member of the judge’s

staff, another court officer, or other courthouse personnel.”). After all,

“[j]udges interact with many different parties in a professional capacity,

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such as the United States Attorney’s Office, the Federal Public Defender’s

Office, local sheriff offices, and various court personnel.” Angelus, 258 F.

App’x at 843. We don’t typically expect judges to recuse themselves

whenever they preside over cases involving someone from these

organizations. Id.

The same is true in criminal cases when representatives of these

organizations are victims of the underlying crime. For example, four

circuit courts have held that recusal is unnecessary even when the victim is

a deputy marshal who was responsible for protecting the sentencing judge.

United States v. Bostick, 791 F.3d 127, 156 (D.C. Cir. 2015) (Kavanaugh,

J.); United States v. Faul, 748 F.2d 1204, 1211 (8th Cir. 1984); United

States v. Jacobs, 311 F. App’x 535, 537 (3d Cir. 2008) (unpublished);

United States v. Angelus, 258 F. App’x 840, 843 (6th Cir. 2007)

(unpublished). Similarly, the Ninth Circuit has held that a judge was

“entirely correct” to decline to recuse when the charge involved a threat to

kill three fellow judges. Clemens v. U.S. Dist. Ct. for the Cent. Dist. of

Cal., 428 F.3d 1175, 1178–79 (9th Cir. 2005) (per curiam). And the

Seventh Circuit has held that a judge didn’t need to recuse when the

criminal charge involved the filing of a fraudulent lien against the chief

judge of the district. United States v. Swallers, 897 F.3d 875, 788–78 (7th

Cir. 2018). In addition, the Eighth Circuit has held that a judge didn’t need

to recuse when the victims were security guards stationed in the

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courthouse. United States v. Ramsey, 871 F.2d 1365, 1367 (8th Cir. 1989).

To our knowledge, no circuit court has held that a judge must recuse just

because the victim works for a related agency like the probation office or

the marshals service.

Granted, sentencing judges typically get reports prepared by

probation officers. So Judge Kelly presumably obtained a probation

officer’s report in each of his criminal cases. We must consider the

significance of these reports on Judge Kelly’s impartiality.

Probation officers act as an arm of the court. United States v. Davis,

151 F.3d 1304, 1306 (10th Cir. 1998). So when Judge Kelly sat as a

sentencing judge, he could visit ex parte with the probation officer before

sentencing. Id. Mr. Saavedra says that the nature of this relationship

rendered probation officers the “advisors” or “agents” of Judge Kelly.

Appellant’s Opening Br. at 16. But we lack evidence involving Judge

Kelly’s interaction with any of the probation officers. 4

In our view, Mr. Saavedra bases his concerns on conjecture about

Judge Kelly’s relationship with the probation office. In Mr. Saavedra’s

view, the possibilities could stir questions about Judge Kelly’s

impartiality.

4 Although probation officers are appointed and removed by the district court, Judge Kelly had no role in the appointment or removal because he is not a judge on the district court. See 18 U.S.C. § 3602(a).

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In suggesting public concern, Mr. Saavedra points to four opinions

where we or other Courts of Appeals said that an objective observer might

question the judge’s impartiality. But there, the judge or his clerk had

blatant ties to a witness, a party, or an attorney representing one of the

parties. United States v. Kelly, 888 F.2d 732 (11th Cir. 1989) (witness);

Hall v. Small Bus. Admin., 695 F.2d 175 (5th Cir. 1983) (party and its

attorney); Potashnick v. Port City Const. Co., 609 F.2d 1101 (5th Cir.

1980) (attorney for a party); United States v. Ritter, 540 F.2d 459 (10th

Cir. 1976) (attorney for a party). The circumstances here don’t rise to a

similar level of blatant ties.

In Kelly, for example, the judge’s wife was a close friend of a

witness’s wife. 888 F.2d at 738. And during the trial, the judge met

privately in chambers with the witness’s wife. Id. When the wife explained

that her husband was planning to testify, the judge blamed the defendant

for creating a dilemma. Id. at 738, 746. The judge’s remarks led the Court

of Appeals to conclude that he should have recused. Id. at 745–46. Indeed,

the Court of Appeals explained that the judge had apparently stayed on the

case only because he worried that recusal might bar a retrial. Id. at 746.

Hall involved the need for a judge to recuse based on the conduct of

his law clerk. The case involved a class action against the Small Business

Administration for gender discrimination. 695 F.2d at 177. The judge’s law

clerk was a member of the class who had worked at the Small Business

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Administration, and she had lodged her own complaint against the agency

for gender discrimination. Id. The clerk also developed ties with the

plaintiffs’ law firm, agreeing to work there when her clerkship ended. Id.

at 178. The Court of Appeals concluded that the law clerk’s continued

involvement in the case, after accepting a job with the plaintiffs’ law firm,

had created the appearance of bias. Id. at 179.

The circumstances in Potashnick were just as blatant. There the

plaintiff’s chief trial counsel had done business with the judge and

represented him in a lawsuit by the time of the trial. 609 F.2d at 1107. And

the judge’s father was a senior partner in the law firm representing the

plaintiff, receiving 1% of the firm’s profit. Id. Together, the judge’s ties to

the plaintiff’s attorney and law firm created an appearance of bias. Id. at

1110–11.

Finally, in Ritter, one of the attorneys was the state bar president.

540 F.2d at 460. While the trial was pending, the attorney presided over

resolutions lodged against the judge. Id. Given those circumstances, we

concluded that the judge should have recused to avoid the appearance of

bias. Id. at 464.

Together, Kelly, Hall, Potashnick, and Ritter show that a judge’s

personal tie to a party or its attorney can create an appearance of bias. The

public can reasonably suspect bias when a judge meets privately with a

witness who’s married to the judge’s close friend, when the judge presides

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over litigation involving the judge’s own law clerk as a class member,

when the judge’s father is receiving a percentage of the profit earned by a

law firm appearing before the judge, or when one of the attorneys

contemporaneously presides over a state bar resolution against the judge.

But none of these cases involve potential recusal based on a judge’s

interaction with an agency performing services for the court (like a

probation office or marshals service).

To assess the line between a judge’s duty to sit and to recuse, we

must consider the circumstances. As discussed earlier, circuit courts have

generally concluded that judges need not recuse based on professional

relationships with offices in which someone is victimized by a crime. Here

there is nothing else to suggest a need to recuse.

* * *

In roughly 20 years, Judge Kelly has received presentence reports in

about 25 cases from someone in the probation office for the District of

New Mexico. But there is no evidence of a personal relationship between

Judge Kelly and these probation officers. In these circumstances, the

public had little reason to question Judge Kelly’s decision not to recuse.

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We therefore affirm his denial of Mr. Saavedra’s motion to reconsider the

chief judge’s transfer order.

Entered for the Court

Robert E. Bacharach Circuit Judge

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No. 22-2149, United States v. Saavedra BRISCOE, Circuit Judge, concurring.

I concur in the result, but would affirm the judgment of the district court on the

grounds that Saavedra’s appeal is barred by the waiver of appellate rights provision

contained in his plea agreement.

We review de novo the question of whether an appellate waiver contained in a

plea agreement is enforceable. United States v. Ibarra-Coronel, 517 F.3d 1218, 1221

(10th Cir. 2008). In answering this question, we follow a three-step process,

determining: “(1) whether the disputed appeal falls within the scope of the waiver of

appellate rights; (2) whether the defendant knowingly and voluntarily waived his

appellate rights; and (3) whether enforcing the waiver would result in a miscarriage of

justice as we define herein.” United States v. Hahn, 359 F.3d 1315, 1325 (10th Cir.

2004). Notably, the defendant “bears the burden of establishing these requirements.”

United States v. Rollings, 751 F.3d 1183, 1187 (10th Cir. 2014).

1. Does Saavedra’s appeal fall within the scope of the waiver?

The plea agreement in this case contained the following appellate waiver

provision:

The Defendant is aware that 28 U.S.C. § 1291 and 18 U.S.C. § 3742 afford a defendant the right to appeal a conviction and the sentence imposed. Acknowledging that, the Defendant knowingly waives the right to appeal the Defendant’s conviction(s) and any sentence, including any fine, at or under the maximum statutory penalty authorized by law, as well as any sentence imposed below or within the Guideline range upon a revocation of supervised release in this cause number.

Supp. R. at 18. Appellate Case: 22-2149 Document: 010111007401 Date Filed: 02/29/2024 Page: 14

Even strictly construing this language, I have little trouble concluding that

Saavedra’s appeal falls within the scope of the waiver. Although Saavedra’s appeal

focuses on the question of whether Judge Kelly should have recused himself from the

case, Judge Kelly’s only involvement in this case was his sentencing of Saavedra. In

other words, if Saavedra were successful in his appeal, the remedy would be to remand

the case to the district court for resentencing before a different judge. In fact, that is the

very remedy he seeks in his opening brief. Aplt. Br. at 1, 23, 27. Thus, there is no

question that the appeal concerns Saavedra’s sentence. As a result, the appeal squarely

falls within the scope of the appellate waiver provision.

2. Knowing and Voluntary

In determining whether a defendant entered into a plea agreement knowingly and

voluntarily, we first look to see “whether the language of the plea agreement states that

the defendant entered the agreement knowingly and voluntarily”; if so, we then look “for

an adequate Federal Rule of Criminal Procedure 11 colloquy.” Hahn, 359 F.3d at 1325.

Here, the appellate waiver provision of the parties’ written plea agreement expressly

states that “Defendant knowingly waives the right to appeal [his] conviction(s) and any

sentence.” Supp. R. at 18. The plea agreement also states that Saavedra’s “plea of guilty

is freely and voluntarily made and is not the result of force, threats, or promises.” Id. at

19. In turn, the district court, in accepting the plea, specifically addressed the appellate

waiver including asking Saavedra if he understood the appellate rights he was giving up

and whether he was willing to give up those rights. Following the questioning of

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Saavedra, the district court expressly found that Saavedra’s “plea [wa]s knowing and

voluntary and supported by sufficient facts.” R., Vol. III at 26. In sum, the record firmly

establishes that the appellate waiver was knowing and voluntary.

3. Miscarriage of Justice

“[E]nforcement of an appellate waiver does not result in a miscarriage of justice

unless enforcement would result in one of the four situations enumerated in [United

States v.] Elliott.” Hahn, 359 F.3d at 1327 (citing United States v. Elliott, 264 F.3d 1171,

1173 (10th Cir. 2001)). Those four situations are “(1) where the district court relied on

an impermissible factor such as race, (2) where ineffective assistance of counsel in

connection with the negotiation of the waiver renders the waiver invalid, (3) where the

sentence exceeds the statutory maximum, or (4) where the waiver is otherwise unlawful.”

Id.

There is no question that the first three situations are inapplicable here. That

leaves only the possibility that the appellate waiver provision in Saavedra’s plea

agreement “is otherwise unlawful.”

To satisfy the “otherwise unlawful” exception, the error “must seriously affect the

fairness, integrity, or public reputation of judicial proceedings.” Id. (cleaned up). In

addition, we have held that the fourth exception “looks to whether ‘the waiver is

otherwise unlawful,’ not to whether another aspect of the [sentencing] proceeding may

have involved legal error.’” United States v. Holzer, 32 F.4th 875, 887 (10th Cir. 2022)

(quoting United States v. Smith, 500 F.3d 1206, 1213 (10th Cir. 2007) (emphasis added)).

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In attempting to satisfy this standard, Saavedra argues that enforcement of the

appellate waiver would implicate “the public’s acceptance of judicial decisionmaking,”

would “fail to ‘satisfy the appearance of justice,’” would “undermin[e] the public’s

confidence in the judicial process,” and would create doubts about impartiality and the

appearance of impropriety. Aplt. Reply Br. at 26–27. But these arguments really focus

on the merits of the legal error that he seeks to raise, and do not, in my view, implicate

the lawfulness of the appellate waiver. I therefore conclude that Saavedra has failed to

establish that the appellate waiver contained in his plea agreement is “otherwise

unlawful.”