US v. David Crummy, No. 13-4125 (4th Cir. 2014)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4125 UNITED STATES OF AMERICA, Plaintiff Appellee, v. DAVID CRUMMY, a/k/a Disco Dave, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Wilmington. James C. Fox, Senior District Judge. (7:11-cr-00105-F-1) Submitted: March 25, 2014 Before KEENAN Circuit Judge. and FLOYD, Decided: Circuit Judges, and May 29, 2014 DAVIS, Senior Affirmed in part, dismissed in part by unpublished per curiam opinion. Seth A. Neyhart, STARK LAW GROUP, PLLC, Chapel Hill, North Carolina, for Appellant. Thomas G. Walker, United States Attorney, Jennifer P. May-Parker, Kristine L. Fritz, Assistant United States Attorneys, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: David Crummy seeks to appeal the 180-month sentence imposed by the district court after he pled guilty, pursuant to a plea agreement, to conspiracy to possess with intent to distribute and distribute 280 grams or more of cocaine base and a quantity of cocaine, in violation of 21 U.S.C. § 846 (2012), and the district court s denial of his motion for recusal. appeal, Crummy granted his unreasonable. his sentence asserts motion for that the district recusal and court that his should sentence On have is The Government asserts that Crummy s appeal of should be dismissed based on the appellate rights included in the plea agreement. waiver of Finding no error, we affirm in part and dismiss in part. First, Crummy argues that the district court should have recused itself. We review a recusal decision for abuse of discretion. United States v. Whorley, 550 F.3d 326, 339 (4th Cir. 2008). A district court should grant a motion for recusal if the judge s impartiality might reasonably be questioned. 28 U.S.C. § 455(a) (2012); * see United States v. Cherry, 330 F.3d 658, 665 (4th Cir. 2003). [R]emarks . . . that are critical or disapproving of, or even hostile to, counsel, the parties, or * We reject Crummy s attempt for the first time on appeal to rely on 28 U.S.C. § 144 (2012), as a basis for recusal. 2 their cases, challenge. ordinarily do not support a bias or partiality Liteky v. United States, 510 U.S. 540, 555 (1994). Crummy argues that the district court s comments during a co-conspirator s sentencing proceeding indicate that it may not have been impartial or that it relied on extrajudicial sources. We have carefully reviewed the record on appeal and conclude that Crummy s contentions are without merit. The district court had extensive prior involvement in Crummy s and his co-conspirators cases and would have reviewed Crummy s background in order to properly evaluate the 18 U.S.C. § 3553(a) (2012) factors. case did not Moreover, the district court s comments in this rise to the conduct warranting recusal. 573 (4th Cir. 2011). type of particularly egregious Belue v. Leventhal, 640 F.3d 567 Accordingly, the district court did not abuse its discretion in denying Crummy s recusal motion. Next, Crummy argues that his sentence is unreasonable because he should have substantial assistance. enforce an appeal received a greater reduction for his Where, as here, the government seeks to waiver and did not breach its obligations under the plea agreement, we will enforce the waiver if it was knowing and intelligent and the issues raised on appeal fall within its scope. United States v. Blick, 408 F.3d 162, 168-69 (4th Cir. 2005). We review the validity of an appellate waiver 3 de novo. United States v. Manigan, 592 F.3d 621, 626 (4th Cir. 2010). Crummy does not assert on appeal that the appellate waiver was not knowing or intelligent or that his agreement to the waiver was in any way involuntary. Our review of the plea hearing transcript confirms that Crummy was competent to plead guilty and that he understood the terms of the plea agreement. The court specifically questioned Crummy about the appellate waiver and ascertained that he understood he was waiving his right to appeal his sentence by entering the plea agreement. See United States v. Thornsbury, 670 F.3d 532, 537 (4th Cir.), cert. denied, 133 S. Ct. 196 (2012). Because the district court sentenced Crummy well below the statutory maximum and below the bottom of the applicable Guidelines range, and he raises no sentencing claim outside the scope of the waiver, we conclude that the waiver is valid and enforceable. Accordingly, sentence recusal facts and affirm motion. and legal We we the dismiss district dispense contentions court s with are Crummy s oral appeal denial argument adequately of of Crummy s because presented his in the the materials before this court and argument would not aid in the decisional process. AFFIRMED IN PART; DISMISSED IN PART 4
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