Victim-Sympathy and Deterrence Remarks at Sentencing Do Not Require Recusal Absent an Extrajudicial Source or Deep-Seated Antagonism

1. Introduction

Hank Sallee Williams pled guilty under a plea agreement to distribution of fentanyl to a minor where the minor died from fentanyl toxicity. The plea agreement stipulated a sentencing range of 120 to 360 months. At sentencing, the district court heard victim-impact statements from the minor’s relatives and friends, commended them for speaking, and recognized their grief. The Government sought a high-end sentence for deterrence; Mr. Williams requested a 10-year sentence, citing addiction and remorse. The district court imposed 360 months (top of the stipulated range) plus six years of supervised release.

On appeal, Mr. Williams argued the sentencing judge was biased and should have recused, rendering the sentence unconstitutional and unlawful under 28 U.S.C. § 455(a). Because he did not raise recusal in the district court, the Tenth Circuit reviewed only for plain error and affirmed.

2. Summary of the Opinion

The Tenth Circuit affirmed the sentence. It held that the sentencing judge’s remarks—expressing sympathy to the victim’s family, acknowledging the harm, and emphasizing deterrence—did not demonstrate actual bias or an appearance of bias under due process or § 455(a). The panel emphasized that the comments arose within the sentencing proceeding (not from any extrajudicial source), reflected permissible sentencing considerations under 18 U.S.C. § 3553(a), and did not approach the “high degree of favoritism or antagonism” required to make fair judgment impossible.

3. Analysis

A. Precedents Cited

• United States v. Black, 773 F.3d 1113, 1115 n.2 (10th Cir. 2014) and United States v. Gonzales, 918 F.3d 808, 811 n.1 (10th Cir. 2019)
  Role in the opinion: These cases support the panel’s discretionary decision to bypass the appeal-waiver question and decide the recusal claim on the merits when the appellant’s argument fails substantively.
• United States v. Jackson, No. 23-2082, 2024 WL 3385599, at *2 (10th Cir. July 12, 2024) (unpublished) and United States v. Wells, 873 F.3d 1241, 1250 (10th Cir. 2017)
  Role in the opinion: The court analogized to prior instances where it declined to litigate waiver enforceability because a recusal-based challenge failed on the merits. Wells also appears later as a substantive recusal authority applying Liteky v. United States.
• United States v. Kee, 129 F.4th 1249, 1252 (10th Cir. 2025) (quoting United States v. Wolfname, 835 F.3d 1214, 1217 (10th Cir. 2016))
  Role in the opinion: These cases supply the four-part plain-error framework, which materially raised Mr. Williams’s burden because he did not seek recusal in the district court.
• United States v. Woodmore, 135 F.4th 861, 873-74 (10th Cir. 2025) (quoting United States v. Nickl, 427 F.3d 1286, 1298 (10th Cir. 2005))
  Role in the opinion: Woodmore provides the governing articulation that due process bias can be shown by actual bias or an appearance of bias, and it aligns that analysis with the objective “reasonable person” test under § 455(a). Nickl supplies key limiting principles: in-proceeding comments are ordinarily insulated unless they show extreme favoritism/antagonism or derive from an extrajudicial source.
• Liteky v. United States, 510 U.S. 540, 555 (1994)
  Role in the opinion: This is the cornerstone for distinguishing ordinary judicial remarks—often prompted by what judges see in court—from disqualifying bias. The “high degree of favoritism or antagonism” standard is the central measuring stick used to reject Mr. Williams’s claim.
• United States v. Pearson, 203 F.3d 1243, 1277-78 (10th Cir. 2000)
  Role in the opinion: Pearson is used in two ways: (1) to restate the objective “reasonable person” test for § 455(a), and (2) to underscore that sentencing courts have a prerogative—indeed a duty—to assess the defendant’s character and crimes, which necessarily involves candid discussion of harm.
• United States v. Martinez, 92 F.4th 1213, 1255 (10th Cir. 2024)
  Role in the opinion: Cited for the proposition that § 455(a) is “purely objective” and limited to outward manifestations and reasonable inferences—an important constraint preventing defendants from converting unfavorable sentencing outcomes into recusal claims.
• Williams v. Pennsylvania, 579 U.S. 1, 11 (2016)
  Role in the opinion: Provided as an illustrative category where recusal is constitutionally required due to a judge’s significant, personal involvement in the case (there, prior prosecutorial authorization to seek the death penalty)—a far more direct conflict than anything alleged by Mr. Williams.
• Caperton v. A.T. Massey Coal Co., Inc., 556 U.S. 868, 890 (2009)
  Role in the opinion: Used to emphasize that judicial-ethics rules (including statutory recusal) often provide broader protection than the Due Process Clause; most disputes are resolved under ethics/statutory standards without reaching constitutional extremes.
• United States v. Rangel, 697 F.3d 795, 804-05 (9th Cir. 2012)
  Role in the opinion: Persuasive authority supporting the key holding: expressions of sympathy for victims at sentencing do not imply inability to impose a lawful, impartial sentence.
• United States v. Franco-Huillen, 196 F. App'x 716, 718-19 (10th Cir. 2006) (unpublished)
  Role in the opinion: Offered as a contrast case—comments linking ethnicity to lying could cause reasonable doubt about impartiality—highlighting that the remarks in Mr. Williams’s case were not comparable in kind or severity.

B. Legal Reasoning

The court’s reasoning tracks the structure of a recusal claim under both due process and § 455(a):

• Standard of review drove the outcome. Because Mr. Williams did not seek recusal below, he had to satisfy plain-error review under United States v. Kee/United States v. Wolfname. That meant not merely showing arguable bias, but a clear (plain) legal error affecting substantial rights and the integrity of the proceeding—an intentionally demanding hurdle.
• No extrajudicial source, no disqualifying appearance. Relying on United States v. Woodmore and United States v. Nickl (and ultimately Liteky v. United States), the panel emphasized that ordinary statements arising from courtroom proceedings—especially sentencing—are typically not grounds for recusal. Mr. Williams did not claim the judge relied on outside information or had a personal connection to the victim.
• Victim sympathy and harm recognition are permissible sentencing conduct. The panel accepted that sentencing judges may acknowledge grief and seriousness of harm, and may commend victim-impact speakers. It treated such remarks as consistent with a judge’s role and with 18 U.S.C. § 3553(a) considerations (e.g., seriousness of the offense, protection of the public, deterrence). Citing United States v. Pearson, the court framed these statements as part of the judge’s duty to assess crime and character.
• Deterrence messaging is not “antagonism.” The court rejected the notion that emphasizing the need to send a “national and local message” about selling fentanyl to minors indicates bias. Deterrence is an explicit statutory factor under § 3553(a), and the opinion found no authority (Supreme Court or Tenth Circuit) deeming such deterrence remarks disqualifying.
• Contrast with truly disqualifying remarks. By invoking Liteky and referencing United States v. Franco-Huillen, the panel clarified the difference between (a) stern or emotionally aware sentencing commentary and (b) remarks revealing deep-seated prejudice (e.g., animus tied to ethnicity or comments making impartiality impossible). Mr. Williams’s examples fell in the former category.

C. Impact

Although the decision is designated nonprecedential, it meaningfully reinforces several practical rules likely to shape future litigation in the Tenth Circuit:

• Sentencing judges may acknowledge victim grief without triggering recusal. The opinion supports routine sentencing practices—listening to victim-impact statements, expressing sympathy, and recognizing courage—without fear that such statements will later be recast as partiality.
• Recusal claims should be raised promptly. The shift to plain-error review is often dispositive. Future defendants have a strong incentive to raise § 455(a) concerns in the district court to avoid the heightened burden on appeal.
• Deterrence rhetoric remains within the judicial lane. Framing fentanyl distribution as a broader community problem and emphasizing general deterrence is treated as consistent with § 3553(a), not as evidence of animus toward a particular defendant.
• Appeal waivers may be bypassed when merits are straightforward. By relying on United States v. Black and United States v. Gonzales (and the approach in United States v. Jackson), the panel signals continued willingness to affirm on the merits without expending resources on waiver enforceability when the appellate issue is clearly losing.

4. Complex Concepts Simplified

• Recusal under 28 U.S.C. § 455(a): A judge must step aside when a reasonable, fully informed observer would question the judge’s impartiality. It is an objective test—focused on what was said or done outwardly, not on speculation about inner thoughts.
• Due process “bias”: The Constitution is violated only in more extreme circumstances—where there is actual bias or a sufficiently serious appearance/risk of bias. As Caperton v. A.T. Massey Coal Co., Inc. notes, judicial ethics rules often go beyond what due process requires.
• Extrajudicial source doctrine: Bias is more likely to be found when the judge’s view comes from outside the case (personal knowledge, relationships, prior involvement) rather than from evidence and statements presented in court. The opinion stresses Mr. Williams did not allege any such outside source.
• “Deep-seated favoritism or antagonism” (Liteky standard): Not every critical comment shows bias. Disqualification requires an extreme level of prejudice—so strong that fair judgment is effectively impossible.
• Plain error review: If you do not object in the trial court, an appellate court will reverse only for a clear, obvious error that likely mattered and seriously undermines confidence in the proceedings.

5. Conclusion

The Tenth Circuit’s decision in United States v. Williams holds that a sentencing judge’s expressions of sympathy for victims, recognition of grief, and emphasis on general deterrence—when rooted in the sentencing proceeding and consistent with § 3553(a)—do not create an appearance of bias requiring recusal under due process or 28 U.S.C. § 455(a). Absent an extrajudicial source, a personal connection, or remarks reflecting deep-seated antagonism, such sentencing commentary falls squarely within permissible judicial conduct. The case also illustrates how failing to seek recusal in the district court can make appellate relief practically unattainable under plain-error review.