Case Information
*1 Before W OOD , Chief Judge, E ASTERBROOK and K ANNE , Circuit Judges .
K ANNE Circuit Defendant Edward best known, legal circles, convicted drug trafficker S. Ct. (2012), whose vacated Supreme Court reduced remand time served year term release. Unfortunately, returned criminal activity *2 2 No. 15 3341 years later, charged with three new counts drug trafficking, resulting proceedings him.
In the first, the present case, Dorsey pled guilty to the three new counts drug trafficking, the district court sentenced him to months’ imprisonment years supervised release. In the second, his revocation case, pled guilty to violating the release after v. the district court sentenced him months’ imprisonment, run concurrently present No. cr (C.D. Ill. J. entered Feb.
In successfully appealed his month sentence, but resentencing, district court creased his months’ imprisonment. Here, second appeal, argues court should recused itself erred procedurally considering sentence. We affirm.
I. B ACKGROUND
A.
In August Dorsey, convicted drug felon, sold 5.5 grams crack cocaine. In September sentenced him years’ imprisonment, pursuant mandatory minimum under Drug Act, Pub. L. No. 570. In doing so, declined apply Fair Sentencing Act (“FSA”), Pub. L. there would no mandatory minimum drug amount below grams, offense predated FSA’s effective date August This af firmed ‐
On June 2012, Dorsey Supreme Court vacated remanded Dorsey’s S. Ct. 2336. Court FSA’s lower mandatory mini mums applied retroactively to post ‐ FSA of pre ‐ FSA offenders. 2335–36.
On remand, reduced Dorsey’s to time served eight year term of supervised release, which included condition “shall commit another state, federal, local crime.” Dorsey was released from custody August 2012.
B. New Offense, Revocation of Supervised Release, First Sentencing
Within years, returned crack cocaine traf ficking Illinois. On May grand jury charged three new counts distribution of crack co caine, pursuant U.S.C. 841(a)(1), (b)(1)(B)(iii), (b)(1)(C). pled guilty all three counts. These charg es constitute which was assigned District Colin S. Bruce.
Meanwhile, result new Dorsey, probation office filed petition revoke Dorsey’s su pervised release ar rested April supervised release revoca tion case was ultimately assigned to District Chief Judge James A. Shadid.
On December 15, 2014, Judge held Dorsey’s first sentencing hearing present The court determined Dorsey’s guidelines range was months, based on adjusted offense level of 34, criminal history catego ‐ ry of IV, and classification career offender. ar ‐ gued, mitigation, should receive lower sentence “the revocation proceeding of prior federal su pervised release still pending … guidelines, any sentence receives shall be consecutive this case.” (Sent. Tr. Dec. The sentenced within guidelines of months’ im prisonment. The also year term of supervised release, with conditions several special conditions. Judgment entered December filed timely notice appeal.
C. Revocation Case Sentencing
On February months after Dorsey’s sentencing Chief Shadid Dorsey’s sentencing hearing. began pleading guilty violating terms release. The then determined guidelines range months’ imprisonment, statutory maximum months criminal history cat egory VI. noted sentencing guide lines recommended should run consec utive other months’ imprison ment. See U.S.S.G. §§ 5G1.3 n.4(C), 7B1.3(f). government agreed guidelines argued con No.
secutive month sentence, whereas Dorsey asked for a concurrent month sentence.
The asked Dorsey whether he was challenging his month sentence appeal, replied: issue appeal is waiting see whether not if appeal is pending if any new legisla
tion comes out that benefits him. As I am sure Your Honor is well aware, was successful litigant States. He learned if you preserve as long as possible, sometimes good thing[s] can happen you. As it stands right now, there is really meritorious issue.
(Sent. Tr. Feb. 2015.) Before Dorsey, made comments. First, it noted month sentence “at high end” his status as career offender. ( Id. Second, declared that, “the fact appears appeal isn’t likely give you same results you received before, proba bly unlikely get any results, I believe concurrent sentence appropriate one.” ( ) then months’ imprisonment, run con currently other months’ im prisonment. Judgment entered Feb ruary
D. First Appeal Resentencing After receiving concurrent his pursued appeal On ap peal, challenged only release conditions. On June government filed joint motion summary reversal remand light 15 3341 Thompson 2015), and its prog ‐ eny. On June 26, 2015, court granted joint motion, vacating Dorsey’s first sentence and remanding resen ‐ tencing.
On October 2015, Dorsey’s second sentencing, resentencing, hearing in case. Consistent with first sentencing, court found had a guidelines range to months, adjusted offense level a criminal history catego ry IV, classification career offender.
After hearing arguments both sides regarding 3553(a) factors, court “reiterate[d] what [it] said at original sentencing.” (Sent. Tr. Oct. 2015.) The district court detailed its reasoning increasing Dorsey’s sen tence months. The district court explained sentencing, had wanted impose month sen tence, but had persuaded court impose month sentence expected receive month consecutive sentence revocation However, received month concurrent consequently, increased “correct … misunderstanding my part months definitely going consecutive.” (
Ultimately, sentenced with guidelines months’ imprisonment years release. conditions several special conditions, ac cordance Thompson entered amended judgment October sec ond appeal now follows. *7 7
No.
II. A NALYSIS
Dorsey raises challenges his resentencing. First, he argues that judge his resentencing, Judge Bruce, should have been disqualified his previous employment supervisory Assistant United States Attor ney (“AUSA”) United States Attorney’s Office that prosecuted v. Second, Dorsey contends that his procedurally unsound re sentencing, impermissibly considered his
A. Judicial Disqualification argues should have recused himself from his pursuant U.S.C. § 455(b)(3).
For claim arising under § 455(b), “if claim is properly preserved, our review is de novo. ” v. Diekemper , F.3d (7th Cir. 2010). For “§ 455(b) claim raised for time appeal where appellant did not move recusal below,” review plain error. Ruzzano (7th Cir. 2001), overruled other grounds Fowler Butts July To show plain error, defend ant must demonstrate judge’s “participation *8 8 15 3341 disposition the case obvious or clear error and it affected [the defendant’s] substantial rights.”
We pause briefly clarify some confusion regarding the standard review. At first glance, it appears we reviewed recusal arguments § 455(b) raised for the first time appeal “under both clear plain error standards.” v. Modjewski , F.3d 645, 650 (7th Cir. 2015) (collecting cases). This confusion stems im precision language—to establish plain error , defend ant must show judge’s “participation disposi tion obvious or clear error affected [defendant’s] substantial rights.” Ruzzano , F.3d (emphasis added). However, even cases purport use clear error framework actually apply plain error standard, e.g. , Diekemper , F.3d or they cite cases apply plain error standard, e.g. , v. Smith , F.3d (7th Cir. 2000) (citing Baldwin Hard ware Corp. v. Franksu Enter. Corp. , F.3d (Fed. Cir. 1996) (plain error); Bosch F.2d Cir. 1991) (plain error); Osei Afriyie Med. Coll. Penn. (3d 1991) (plain error)). Therefore, proper review § 455(b) challenge raised for time appeal is plain error.
In did raise 455(b)(3) issue fore court, thus argument reviewed plain error. U.S.C. 455(b)(3) provides: “[a judge] shall dis
qualify himself … [w]here served governmental employment such capacity participated counsel, adviser material witness concerning proceeding or expressed an opinion concerning the merits the particular case in controversy[.]”
This has held for the purposes § 455(b)(3), “ [t]he proceeding means current proceeding .” Lara Unzueta , F.3d (7th Cir. 2013) (emphasis in original). Furthermore, this for “judges who were formerly AUSAs, § 455(b)(3) requires some level actual participation in case trigger disqualification.” Ruzzano , F.3d 695. “Even AUSA who occupied supervisory position in U.S. Attorney’s Office during prosecution is not later required recuse herself solely on basis.” Id.
In case, § 455(b)(3) claim fails because it was impossible Judge Bruce actually participate as AUSA in current proceeding. current proceeding began when was indicted on May 2014. At time, Judge Bruce had already ascended bench—he received commission October was sworn in November 2013. sole authority relied upon support § 455(b)(3) claim Smith But Smith does not apply here. In Smith 455(b)(3) violation occurred because judge
had actually participated as counsel very proceeding she In present as discussed, impossible Judge Bruce actu ally participate counsel current proceeding already bench. Accordingly, did need recuse himself 455(b)(3).
B. Procedural Error
Next, argues that the erred proce ‐ durally resentencing increasing based the concurrent nature of case
This reviews court’s proce ‐ dural error de novo Abebe Procedurally, we ask courts do following sentencing: “(1) calculate applicable Guide ‐ lines range; (2) give defendant an opportunity identify any of U.S.C. § 3553(a) factors might warrant non Guidelines sentence; (3) state which factors influ enced final sentence.” (internal quotation marks omit ted). specifically contends U.S.C. 3553(a)
factors “in no way permit another judge’s decision sepa rate case be considered factor imposing [sic] sen tence[.]” (Appellant Br.
This argument meritless, flying face of clear fed eral statute Supreme Court law. U.S.C. provides “[n]o limitation shall placed infor mation concerning background, character, conduct person convicted offense may receive consider purpose imposing appropriate sentence.” This statute simply “codifies longstanding principle courts broad discretion consider various kinds infor mation.” Watts U.S. (1997) (per curiam).
Moreover, general principle, Supreme Court explicitly when defendant’s been set aside appeal, resentencing court may con ‐ sider, 3553(a), postsentencing information relating defendant increasing decreasing defendant’s sentence. Pepper U.S. 487–505; s ee Barnes
Here, at resentencing, stated fac ‐ tors influenced final sentence, including extensive discussion its reasons increasing Dorsey’s sentence months concurrent nature Dorsey’s revo cation sentence. (Sent. Tr. 34–35, Oct. 2015.) dis trict explained at Dorsey’s sentencing, had wanted impose month sentence, but had persuaded impose month sentence be cause expected receive month consecutive revocation case. ( Id. ) Dorsey, however, received month concurrent As result, resentencing, increased Dorsey’s sen tence “correct … misunderstanding my part months definitely going consecutive.” ( court’s reasoning more than adequately jus tifies final Therefore, there no proce dural error.
III. C ONCLUSION
For foregoing reasons, AFFIRMED.
[1] We note clerical error written amended judgment, states six year term supervised release Dorsey. Instead, amended judgment should stated eight year term supervised release, pursuant U.S.C. 841(a)(1), (b)(1)(B)(iii). However, correct year term release used
[2] In opening brief, cited U.S.C. § 455(a), but he did not develop any recusal argument under this statutory provision. (Ap pellant Br. 16.) Furthermore, reply brief, explicitly stated “has not claimed relief under § 455(a),” “is not asking [c]ourt find should been recused proceedings instant under 455(a).” (Appellant Reply Br. Therefore, does raise claim 455(a).