United States v. Zovath

• Court: Court of Appeals for the Fifth Circuit
• Decided: June 10, 2002
• Docket: 01-20357
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-20357 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DAVID ALAN ZOVATH,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. H-00-CR-422-1 -------------------- June 7, 2002

Before JONES, SMITH and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

David Alan Zovath appeals his sentence following his

guilty plea to a charge of forging the signature of a federal

bankruptcy judge. As part of his plea agreement, Zovath waived the

right to appeal his sentence, but reserved the right to appeal the

district court’s upward departure from the sentencing guidelines.

A district court’s decision to depart from the guidelines is

reviewed for abuse of discretion. United States v. Ashburn,

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 01-20357 -2-

38 F.3d 803, 807 (5th Cir. 1994)(en banc). Zovath has not shown

that consideration of his character and conduct for upward

departure is prohibited by law. See id.; U.S.S.G. § 1B1.4.

Zovath argues (1) that there was insufficient basis for

an upward departure, and (2) that the district court gave no

explanation for why it bypassed intermediate offense levels in

choosing a six-level upward departure. United States v. Lambert,

984 F.2d 658, 663 (5th Cir. 1993)(en banc)(departure pursuant to §

4A1.3). We reject the first contention, inasmuch as the evidence

of bankruptcy court fraud, a theft charge and outstanding warrants

show that appellant has a longstanding and complete lack of respect

for the judicial process not taken into account by the guidelines

for the offense of conviction. Second, as to the extent of

departure, the district court stated that it had determined that a

sentencing range of 18 to 24 months was appropriate. The district

court was not required to discuss each category rejected. Id. ;

see also United States v. Lara, 975 F.2d 1120, 1125 n.3 (5th Cir.

1992). The district court did not abuse its discretion in

departing upward six offense levels.

Zovath argues that the judge should have recused himself

because of information submitted in relation to his request to be

released on bond. "[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 No. 01-20357 -3-

favoritism or antagonism that would make fair judgment impossible."

Liteky v. United States, 510 U.S. 540, 555 (1994). The district

court did not abuse its discretion in denying the recusal motion.

AFFIRMED.