IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 97-11299 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JEROME SHEARER, JR.,

Defendant-Appellant.

- - - - - - - - - - Appeal from the United States District Court for the Northern District of Texas USDC No. 4:97-CR-80-1-A - - - - - - - - - -

December 29, 1998

Before HIGGINBOTHAM, JONES, and DENNIS, Circuit Judges.

PER CURIAM:*

Jerome Shearer, Jr., argues that the district court abused

its discretion in denying his

(a) motion to recuse

the district judge from presiding in his case. Shearer argues

that the fact that his counsel was subpoenaed to provide

testimony adverse to the district judge’s interest would have

caused a reasonable person to question the judge’s ability to be

impartial during the proceedings.

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. No. 97-11299 -2-

We have reviewed the record, and the briefs of the parties,

including the brief submitted by Judge McBryde, and affirm the

denial of the motion on grounds different than those relied upon

by the district court. See Hanchey v. Energas Co.,

(5th Cir. 1990).

We have determined that Shearer waived his right to

challenge the district court’s denial of the motion to recuse by

entering into an unconditional guilty plea after the district

court had denied his recusal motion. See United States v.

Hoctel, F.3d , No. 97-50916,

(5th

Cir. Sept. 11, 1998).

AFFIRMED.