United States v. Rea-Tapia

* 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this opinion should not be published and is not precedent except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.
United States Court of Appeals
Fifth Circuit
F I L E D
June 15, 2005
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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

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2
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

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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
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

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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 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

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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
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

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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
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

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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
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

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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
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,

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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
AFFIRMED.19

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