U.S. Fourth Circuit: November 2009 Archives
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November 2009 Archives

Maxwell v. Maxwell, No. 08-1945

In a husband's petition for wrongful removal under the International Child Abduction Remedies Act, 42 U.S.C. section 11601 against his wife for taking their four children from Australia to the US after their failed marriage reconciliation attempt, district court's order denying his petition is affirmed as:  1) district court properly determined that the husband failed to prove by a preponderance of the evidence that the quadruplets' habitual residence was Australia; 2) the district court's finding that there was no shared parental intent to abandon the US as the quadruplets' habitual residence is not clearly erroneous; and 3) there are several objective factors supporting the district court's conclusion that the quadruplets never became acclimatized to Australia during their two-month stay.   

Read Maxwell v. Maxwell, No. 08-1945

Appellate Information

Argued: September 22 2009

Decided: November 30, 2009

Judges

Opinion by District Judge Seymour

Counsel

For Appellant:  Neil Joshua Saltzman, Law Office of Neil J. Saltzman

For Appellee:  Bradley B. Honnold, The Honnold Law Firm, PA.

US v. Phillips, No. 07-4230

District court's conviction of defendant for securities fraud, mail fraud, and other related crimes is affirmed as the warrant's inclusive language was reasonably read by the postal inspection agents to encompass the seized evidence and thus, the agents' seizures were permissible.   

Read US v. Phillips, No. 07-4230

Appellate Information

Argued: September 25, 2009

Decided: November 24, 2009

Judges

Opinion by Judge Wilkinson

Counsel

For Appellant:  James Wyda, Federal Public Defender

For Appellee:  Joyce Kallam McDonald, Office of the US Attorney

Baharon v. Holder , No. 08-1700

Petitioner's request for review of the BIA's final removal order denying his asylum application and ordering him removed to Yemen is granted and the case remanded as petitioner has established that he was subjected to past persecution, and as such, he is entitled to the presumption of a well-founded fear of future persecution, which would make him eligible for asylum.   

Read Baharon v. Holder , No. 08-1700

Appellate Information

Argued: September 24, 2009

Decided: November 24, 2009

Judges

Opinion by Judge Gregory

Counsel

For Appellant: Jason Alexander Dzubow, Mensah Shoemaker & Dzubow, PLLC

For Appellee:  Theo Nickerson

District court's order vacating an arbitrator's award in favor of a union on the ground that the arbitrator exceeded his authority by adding a term to the underlying contract is reversed and remanded as, even if the arbitrator erred, he acted within the scope of his authority under the contract.     

Read PPG Indus., Incorp. v. Int'l Chem. Workers Union Council of the United Food and Commercial Workers, No. 08-2180

Appellate Information

Argued: September 30, 2009

Decided: November 20, 2009

Judges

Opinion by Judge Motz

Counsel

For Appellant: August Randall Vehar, Akron, Ohio

For Appellee:  C. David Morrison, Steptoe & Johnson, LLP, Clarksburg, West Virginia

Kourouma v. Holder , No. 08-1864

A Guinean citizen's petition for review of BIA's denial of her application for asylum, withholding of removal, and protection under the CAT is granted and BIA's decision denying her asylum application on the basis of an adverse credibility finding is vacated and remanded as it was not supported by substantial evidence, and petitioner has established past persecution in the form of female genital mutilation.   

Read Kourouma v. Holder , No. 08-1864

Appellate Information

Argued: September 22, 2009

Decided: November 24, 2009

Judges

Opinion by Judge Gregory

Counsel

For Appellant:  Kamal M. Nawash, The Nawash Law Office

For Appellee:   Gregory G. Katsas, Assistant Attorney General, Office of Immigration

District court's order vacating an arbitrator's award in favor of a union on the ground that the arbitrator exceeded his authority by adding a term to the underlying contract is reversed and remanded as, even if the arbitrator erred, he acted within the scope of his authority under the contract.     

Read PPG Indus., Incorp. v. Int'l Chem. Workers Union Council of the United Food and Commercial Workers, No. 08-2180

Appellate Information

Argued: September 30, 2009

Decided: November 20, 2009

Judges

Opinion by Judge Motz

Counsel

For Appellant: August Randall Vehar, Akron, Ohio

For Appellee:  C. David Morrison, Steptoe & Johnson, LLP, Clarksburg, West Virginia

Narricot Indus., LP v. NLRB, No. 09-1164

Petitioner's request for review of a decision of the NLRB (Board), arising from allegations of various unfair labor practice charges, is denied where: 1) the Board decision was properly issued by a two-member quorum pursuant to 29 U.S.C. section 153(b); and 2) the Board's decision is enforceable on the merits.     

Read Narricot Indus., LP v. NLRB, No. 09-1164

Appellate Information

Argued: September 23, 2009

Decided: November 20, 2009

Judges

Opinion by Judge King

Counsel

For Appellant: James Marion Powell, Womble, Carlyle, Sandridge & Rice, PLLC

For Appellee:  Kellie Isbell, National Labor Relations Board

US v. Harcum, No. 07-4890

District court's sentence of defendant to 235-month imprisonment on his conviction for being a felon in possession of a firearm is vacated and remanded as the district court erred when it looked to and relied on the Statement of Charges in determining that defendant's Maryland second-degree assault conviction qualified as a violent felony conviction under the Armed Career Criminal Act (ACCA), as the Statement of Charges was not incorporated into the information.     

Read US v. Harcum, No. 07-4890

Appellate Information

Argued: September 25, 2009

Decided: November 17, 2009

Judges

Opinion by Judge  King

Counsel

For Appellant: Sapna Mirchandani, Office of the Federal Public Defender, Greenbelt, Maryland

For Appellee:  Cheryl L. Crumpton, Office of the United States Attorney, Baltimore, Maryland

US v. Maroquin-Bran, No. 08-4464

District court's sentencing of a Guatemalan citizen for illegally re-entering the US following deportation to fifty-seven months in prison and three years of supervised release after applying a sixteen level enhancement is vacated and remanded for resentencing as section 2L1.2(b)(1)(A) requires a prior conviction for a felony that is a drug trafficking offense, not simply a conviction under a statute that criminalizes drug trafficking as well as other activities.     

Read US v. Maroquin-Bran, No. 08-4464

Appellate Information

Argued: September 25, 2009

Decided: November 9, 2009

Judges

Opinion by Judge Motz

Counsel

For Appellant: G. Alan DuBois, Office of the Federal Public Defender, Raleigh, North Carolina

For Appellee: Jennifer P. May-Parker, Office of the US Attorney, Raleigh, North Carolina

US v. Grubbs, No. 07-5040

District court's sentence of a 240 months imprisonment and a life term of supervised release of a defendant convicted of knowingly transporting a minor in interstate commerce with intent to engage in sexual activity and related offenses is affirmed where: 1) district court's use of uncharged conduct in determining defendant's sentence did not violate the Sixth Amendment; 2) district court did not err by relying on uncharged conduct that was proven by preponderance of the evidence standard; and 3) the district court did not commit reversible error in calculating defendant's Guidelines range and the sentence was therefore procedurally reasonable.   

Read US v. Grubbs, No. 07-5040

Appellate Information

Argued: September 24, 2009

Decided: November 6, 2009

Judges

Opinion by Judge Agee

Counsel

For Appellant: Matthew Segal, Federal Defenders of Western North Carolina, Inc.

For Appellee: Adam Christopher Morris, Office of the United States Attorney, Charlotte, North Carolina