USA V. RYAN MCKENDRY-VERHUNCE, No. 12-10010 (9th Cir. 2012)
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NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FILED FOR THE NINTH CIRCUIT DEC 05 2012 UNITED STATES OF AMERICA, Plaintiff - Appellee, No. 12-10010 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS D.C. No. 3:11-cr-00013-HDMVPC-1 v. RYAN ROSS MCKENDRYVERHUNCE, MEMORANDUM* Defendant - Appellant. Appeal from the United States District Court for the District of Nevada Howard D. McKibben, Senior District Judge, Presiding Submitted December 3, 2012** San Francisco, California Before: O SCANNLAIN, THOMAS, and CALLAHAN, Circuit Judges. Ryan McKendry-Verhunce appeals his conviction by guilty plea and sentence for three counts of possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(l) and one count of possession of an unregistered * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). short-barreled shotgun in violation of 26 U.S.C. §§ 5841, 586l(d), and 5971. We affirm. Because the parties are familiar with the history of the case, we need not recount it here. I The district court did not violate Fed. R. Crim. P. 11(c)(1) s prohibition on judge participation in plea discussions. Rule 11(c)(1) s ban does not apply because no plea discussions took place before the district court. Furthermore, the court s actions do not implicate the rationales behind Rule 11(c)(1): (1) preventing the risk of coercing a defendant to plead guilty, (2) protecting the integrity of the judicial process, and (3) preserving the judge s impartiality after the negotiations are completed. See United States v. Bruce, 976 F.2d 552, 556-57 (9th Cir. 1992). The district court never prohibited McKendry-Verhunce from cooperating with the government, nor did it foreclose any scenario where McKendry-Verhunce could carry firearms, drugs or money as part of a cooperation agreement. Rather, the court reasonably said it would not permit McKendry-Verhunce to possess firearms or drugs absent a controlled, court-approved program. No Rule 11(c)(1) violation occurred. 2 II The district court did not err in denying McKendry-Verhunce s motion to recuse before imposing sentence, a decision we review for abuse of discretion. Pesnell v. Arsenault, 543 F.3d 1038, 1043 (9th Cir. 2008). The district court did not commit plain error by failing sua sponte to recuse from hearing the Rule 11 motion. United States v. Holland, 519 F.3d 909, 911-12 (9th Cir. 2008) (recusal decision reviewed for plain error when party does not request recusal). The isolated comments by the judge upon which McKendry-Verhunce relies to support his argument do not establish the bias or partiality that would require recusal. [J]udicial remarks during the course of a trial that are critical, or disapproving of, or even hostile to, counsel, the parties, or their cases, ordinarily do not support a bias or partiality challenge. Liteky v. United States, 510 U.S. 540, 555 (1994). AFFIRMED. 3
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