Whether federal circuit courts should review the denial of a motion to recuse a district judge under 28 U.S.C. § 455(a) de novo or for an abuse of discretion

QUESTIONS PRESENTED Federal circuit courts are divided over whether to review the denial of a motion to recuse a district judge under 28 U.S.C. § 455(a) de novo or for an abuse of discretion. Petitioner’s district judge believed that, to induce the Government to request a lower sentence under U.S.S.G. § 5K1.1, petitioner fabricated information about a plot to kill the judge. The judge denied petitioner’s recusal motion alleging that the judge’s role in the investigation of the plot affected his impartiality at sentencing. Before denying the motion, the judge stated that the hoax had caused only a “minor inconvenience,” “like you’re at a picnic and there’s flies and youre trying to just swat them away” (ROA.904). After denying it, he admitted, “at one point I was very upset about this and was considering .. . givling] [petitioner a] life [sentence]” (ROA.936). He denied a downward variance and sentenced petitioner to 360 months. The Fifth Circuit affirmed using an abuse-ofdiscretion standard. It failed to mention that the judge was “very upset” and had left town when he learned of the alleged threat. The questions presented are: I. Whether a federal circuit court reviews the denial of a motion to recuse a district judge under 28 U.S.C. § 455(a) de novo or for an abuse of discretion. Il. Whether the Fifth Circuit erred in affirming the denial of petitioner’s motion to recuse under 28 U.S.C. § 455(a) and (b)(1). ii RELATED CASES e United States v. Lechuga, No. 7:16-CR-876-2, United States District Court, Southern District of Texas, McAllen Division. Judgment entered May 22, 2019. e United States v. Lechuga, No. 19-40483, United States Court of Appeals for the Fifth Circuit. Judgment entered July 9, 2020.