## Facts

- Linda J. Sykes was charged in a four-count federal indictment with falsely representing a Social Security number with intent to deceive, in violation of 42 U.S.C. § 408(a)(7)(B).
- The indictment alleged four separate uses of false Social Security number information over roughly a 32-month period to obtain consumer credit from different sources.
- Sykes pleaded guilty to Count I.
- Count I involved a June 10, 1988 transaction in Madison, Wisconsin: Sykes used a false Social Security number on a credit application to obtain financing through AVCO Financial Services for a furniture purchase from A-1 Furniture Company; AVCO financed $1,599.33 and later extended an additional $634.95 based on the same application.
- Count II alleged that in February of the following year Sykes applied to CUNA Credit Union for a VISA card using a different name (Lyndra J. Young) but the same false Social Security number used in Count I.
- Count III alleged another credit-related use of false Social Security number information; on appeal Sykes did not dispute treating the conduct in Counts II and III as related to Count I for guideline purposes.
- Count IV alleged a fourth episode that differed in key respects from Count I (including the pattern and circumstances of the use of the false identifier), and Sykes disputed that it was sufficiently connected to Count I for sentencing.
- The district court accepted Sykes’s guilty plea to Count I and, on the government’s motion, dismissed Counts II–IV.
- At sentencing, the district court treated the acts charged in the dismissed counts as “relevant conduct” under U.S.S.G. § 1B1.3(a)(2), which raised Sykes’s guideline calculations; the court imposed a sentence at the top of the resulting range.
- At the plea hearing, Sykes’s former counsel asked about which Sentencing Guidelines provision would be used to calculate her offense level; the judge responded that he would not accept a plea if the parties had stipulated to a specific guideline section and mentioned having read an article by someone in counsel’s office expressing concerns about guideline operation in the court.
- Two months later, after sentencing, Sykes’s counsel moved to withdraw, and Sykes submitted an affidavit that the judge construed as a motion seeking recusal based on the judge’s plea-hearing comments; the district court denied recusal.

## Issues

1. Whether the conduct alleged in Count IV was part of the “same course of conduct” or “common scheme or plan” as the Count I offense of conviction, making it “relevant conduct” under U.S.S.G. § 1B1.3(a)(2).
2. Whether the district judge was required to recuse under 28 U.S.C. §§ 144 or 455 based on the judge’s statements at the plea hearing about the Sentencing Guidelines and defense counsel’s office.

## Decision

- The Seventh Circuit held that the conduct charged in Count IV did not qualify as relevant conduct under U.S.S.G. § 1B1.3(a)(2) in relation to Count I.
- The court vacated Sykes’s sentence and remanded for resentencing without including Count IV in the guideline calculation.
- The court affirmed the denial of recusal, holding that the recusal request was untimely and procedurally defective under § 144 and, in any event, did not show the kind of personal, extrajudicial bias (or appearance of partiality) that would require disqualification under § 455.

## Legal Principles

- Under U.S.S.G. § 1B1.3(a)(2), dismissed or uncharged acts may affect the guideline range only if they are part of the same course of conduct or common scheme or plan as the offense of conviction.
- In deciding whether acts are part of the same course of conduct, courts consider similarity, regularity, and temporal proximity, looking for a behavior pattern connecting the acts to the offense of conviction.
- A guideline calculation error is not harmless when it changes the guideline range and the sentencing court selects a sentence at the top of the higher range.
- Under 28 U.S.C. § 144, recusal requires a timely and legally sufficient affidavit and a certificate from counsel stating the affidavit is made in good faith; the request must be made at the earliest moment after the party learns the facts claimed to show bias.
- A § 144 affidavit must allege definite, particular facts that would lead a reasonable person to find bias; conclusory statements are insufficient, and the alleged bias must be personal rather than based on the judge’s actions or statements made while handling the case.
- Under 28 U.S.C. § 455, disqualification generally turns on whether a reasonable observer would question the judge’s impartiality; comments reflecting a judge’s views about the law or guideline administration, without more, do not establish personal bias against a defendant.

## Conclusion

The Seventh Circuit vacated and remanded for resentencing because Count IV was not sufficiently connected to Sykes’s Count I conviction to be treated as relevant conduct under U.S.S.G. § 1B1.3(a)(2), while also affirming the denial of recusal because the post-sentencing request was late, failed to satisfy § 144’s procedural requirements, and did not show personal, extrajudicial bias requiring disqualification under §§ 144 or 455.


United States v. Sykes, 7 F.3d 1331(1993)