Submitted: April 3, 2017
from United States District Court for the Southern District
of Iowa - Des Moines
WOLLMAN, LOKEN, and RILEY, Circuit Judges.
Knoxville, Iowa citizen reported an encounter with a
suspicious person who knocked on his door, then struck a
vehicle while driving away. A dispatched Marion County Deputy
located and approached the reported vehicle parked on a
dead-end road. The vehicle's armed driver was Nathan
Minard, and the vehicle was full of firearms and other items
taken in recent local burglaries. Minard was charged and
pleaded guilty to being a felon in possession of a firearm in
violation of 18 U.S.C. § 922(g). The Presentence
Investigation Report calculated an advisory guidelines range
of 120 to 150 months in prison; the statutory maximum
sentence was 10 years.
sentencing, Ryan McCarthy, one of Minard's burglary
victims, addressed the court, explaining the impact the
burglary of their residence had on McCarthy, his wife, and
their two young children. "My wife, you know, she'll
hear something after I've left for work in the morning,
you know, she's never going to get by what's happened
to us because of his irresponsible actions." When
McCarthy completed his statement, the district
court stated: "I understand exactly what
you're saying. It happened to me, too, when my kids were
little, so I know exactly what you're talking
about." The prosecutor then stated the government's
sentencing position, asking the court to impose the statutory
maximum of 120 months, based on Minard's extensive
criminal history and the events leading to his arrest in a
vehicle full of stolen items and firearms. The district court
discussed in detail its consideration of the 18 U.S.C. §
3553(a) sentencing factors and imposed a 120-month sentence.
filed a timely motion under Rule 35 of the Federal Rules of
Criminal Procedure, alleging that the district court's
statement to the crime victim at sentencing "might have
caused the Court to lack impartiality resulting in a harsher
sentence, " and seeking "re-sentencing to occur
before a different Judicial Officer." The district court
denied the motion without a hearing, explaining that its
statement to the victim "had nothing to do with the
sentence imposed. . . . [It was] an expression of empathy,
nothing more." Minard appeals, arguing the district
court erred in denying his Rule 35 motion because the
statement reflected a bias or partiality which required the
judge to recuse, sua sponte, pursuant to 28 U.S.C.
§ 455(a). We conclude this contention is without merit
for multiple reasons and therefore affirm.
as Minard did not object or move for recusal at sentencing,
the issue was not timely raised and our review is for plain
error. See, e.g., United States v.
Burnette, 518 F.3d 942, 945 (8th Cir. 2008). Rule 35
provides, "Within 14 days after sentencing, the court
may correct a sentence that resulted from arithmetical,
technical, or other clear error." Minard cites no case,
and we have found none, in which Rule 35 relief was granted
because the sentencing judge failed to recuse sua
sponte. Minard seeks to bring his motion within the
purview of Rule 35 by arguing the district court committed
"clear error." But clear error is not plain error.
"a judge is presumed to be impartial and the party
seeking disqualification bears the substantial burden of
proving otherwise." United States v. Ali, 799
F.3d 1008, 1017 (8th Cir. 2015) (quotation omitted). Opinions
based on facts or events occurring in a judicial proceeding
"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."
Liteky v. United States, 510 U.S. 540, 555 (1994).
Here, the district court's spontaneous expression of
empathy for a crime victim's impact statement reflected
no deep-seated antagonism, and its statement of reasons for
imposing a 120-month sentence reflected thorough and proper
consideration of the statutory sentencing factors.
Congress has given crime victims the statutory rights
"to be reasonably heard at any public proceeding in the
district court involving . . . sentencing, " and
"to be treated with fairness and with respect for the
victim's dignity and privacy." 18 U.S.C. §
3771(a)(4) and (8). Rather than reflect bias or antagonism to
Minard, the district court's single statement -- directed
to the crime victim at the end of the victim's stressful
appearance -- furthered the congressional policy of
encouraging crime victim participation in the criminal
judgment of the district court is affirmed.
The Honorable John A. Jarvey, Chief
Judge of the United States District Court for the Southern