U.S. Fourth Circuit: January 2010 Archives
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January 2010 Archives

Melgar v. Greene, No. 08-2393

In plaintiff's 42 U.S.C. section 1983 suit against a police officer and the police department, arising from an incident where plaintiff's lost and intoxicated thirteen-year-old son was bitten by a police patrol dog used by an officer to find him, district court's denial of defendants' motion for summary judgment on basis of qualified immunity is reversed and remanded as, qualified immunity is appropriate because the officer did not violate clearly established law in his search for a missing boy who faced serious potential injury.   

Read Melgar v. Greene, No. 08-2393

Appellate Information

Argued: October 29, 2009

Decided: January 29, 2010

Judges

Opinion by Circuit Judge Wilkinson

Counsel

For Appellant:   William Antoine Snoddy, Office of the County Attorney for Montgomery County

For Appellee:    Terrell Roberts, Roberts & Wood

US v. Chapman, No. 08-7976

District court's denial of defendant' 28 U.S.C.A. section 2255 motion is affirmed as, decisions involving mistrials - whether to seek a mistrial or accept a mistrial offered by the trial court - are tactical decisions left to the sound judgment of counsel, and the decision remains counsel's to make even if the client expresses disagreement with the decision, and counsel's decision is not unreasonable simply because the client disagrees.   

Read US v. Chapman, No. 08-7976

Appellate Information

Argued: December 1, 2009

Decided: January 29, 2010

Judges

Opinion by Chief Judge Traxler

Counsel

For Appellant:   Lartease Martrell Tiffith, Kirkland & Ellis LLP

For Appellee:    Jefferson McClure Gray, Office of the US Attorney

Sharpe v. Bell, No. 09-6206

In habeas proceedings, district court's ruling in favor of defendant on the merits of his ineffective assistance of counsel claims is reversed and remanded as, in reaching its conclusions, the district court ignored the several state post-conviction proceedings which had determined that the evidence defendant presented was not credible and that his constitutional claim was without merit, and such a de novo do-over was impermissible under the Antiterrorism and Effective Death Penalty Act of 1996. 

Read Sharpe v. Bell, No. 09-6206

Appellate Information

Argued: December 4, 2009

Decided: January 29, 2010

Judges

Opinion by Chief Judge  Wilkinson

Counsel

For Appellant:   Clarence Joe DelForge, III.

For Appellee:    William Gregory Duke

US v. Kelly, No. 08-4982

Defendant's convictions for conspiracy to distribute and possess drugs and related crimes is affirmed as the automobile exception does not have any exigency requirement apart form the inherent mobility of the automobile, and thus, if the police have probable cause, the justification to conduct a warrantless search does not vanish once the police have established some degree of control over the automobile. Defendant's remaining claims are rejected as without merit.     

Read US v. Kelly, No. 08-4982

Appellate Information

Argued: December 3, 2009

Decided: January 28, 2010

Judges

Opinion by Chief Judge  Wilkinson

Counsel

For Appellant:  Jon Michael Babineau, Riddick Babineau PC

For Appellee:   Sherrie Scott Capotosto, Office of the US Attorney

US v. Lynn, No. 08-5125

In consolidated criminal cases involving defendants' objections, for the first time on appeal, to the sentences imposed by the sentencing courts, the circuit court rules that such unpreserved objections are to be subjected to plain-error review.  

Read US v. Lynn, No. 08-5125

Appellate Information

Argued: December 3, 2009

Decided: January 28, 2010

Judges

Opinion by Chief Judge Motz

Counsel

For Appellant: Gregory Bruce English, English & Smith

For Appellee:   Richard Daniel Cooke, Office of the US Attorney

US v. Myers, No. 09-1212

Defendant's appeal of a contempt citation for failure to produce various items in a criminal trial is dismissed for lack of jurisdiction because defendant has not appealed a final judgment under 28 U.S.C. section 1291 and cannot satisfy the Perlman doctrine or collateral order doctrine.     

Read US v. Myers, No. 09-1212

Appellate Information

Argued: September 23, 2009

Decided: January 28, 2010

Judges

Opinion by Chief Judge  Duncan

Counsel

For Appellant:  Shawn R. McDermott

For Appellee:   Paul Thomas Camilletti, Office of the US Attorney

Walker v. Kelly, No. 06-23

District court's denial of defendant's petition for habeas relief seeking to prevent his execution is affirmed where: 1) the district court did not clearly err in denying defendant's Atkins claim; and 2) the district court did not err by refusing to empanel a jury to determine defendant's mental retardation claim.   

Read Walker v. Kelly, No. 06-23

Appellate Information

Argued: September 22, 2009

Decided: January 27, 2010

Judges

Opinion by Chief Judge  Shedd

Counsel

For Appellant: Jody Manier Kris

For Appellee:   Steven Andrew Witmer, Office of the Attorney General

Winston v. Kelly, No. 09-2

District court's denial of habeas relief by a defendant convicted of capital murder and sentenced to death is affirmed in part, vacated in part, and remanded where: 1) with respect to Atkins and Atkins-related claims, decision of the district court is vacated and remanded as it was error for the district court to refuse to consider evidence of defendant's mental retardation because the evidence does not fundamentally alter defendant's claims and because habeas counsel was diligent in searching for it; and 2) district court's denial of defendant's ineffective assistance claims for both the guilt and sentencing phases, and jury instruction claim are affirmed.      

Read Winston v. Kelly, No. 09-2

Appellate Information

Argued: September 23, 2009

Decided: January 27, 2010

Judges

Opinion by Chief Judge  Michael

Counsel

For Appellant:  Jennifer Leigh Givens, Federal Community Defender's Office

For Appellee:   Steven Andrew Witmer, Office of the Attorney General

US v. Manigan, No. 08-4292

District court's sentencing and conviction of defendant for drug related crimes is affirmed where: 1) an appellate waiver will not be enforced where a district court has advised a defendant that, contrary to the plea agreement, he is entitled to appeal his sentence, as the defendant can hardly be said to have knowingly waived his right of appeal; and 2) the district court did not err in increasing the offense level because the PSR recitation circumstantially supports the district court's application of a weapon enhancement and because defendant failed to show that it was clearly improbable for the handguns to be connected to the common scheme or plan surrounding his drug activities.  

Read US v. Manigan, No. 08-4292

Appellate Information

Argued: October 30, 2009

Decided: January 26, 2010

Judges

Opinion by Chief Judge  King

Counsel

For Appellant:  Joseph Bradley Bennett, Salvini & Bennet LLC

For Appellee:   William J. Watkins, Jr., Office of the United States Attorney

US v. Carr, No. 08-5037

Conviction of defendant for being a felon in possession of a firearm and sentence as an armed career criminal to 262 months' imprisonment is affirmed as, although defendant's crimes are substantively the same and arguably had the same criminal objective, the combination of factors establishes that defendant's prior felonies were separate and distinct criminal episodes for purposes of the ACCA. 

Read US v. Carr, No. 08-5037

Appellate Information

Argued: December 3, 2009

Decided: January 26, 2010

Judges

Opinion by Chief Judge  Shedd

Counsel

For Appellant:  Joseph Edward Zeszotarski, Jr., Poyner Sprull, LLP

For Appellee:   John Stuart Bruce, Office of the United States Attorney

Marynenka v. Holder, No. 07-1792

A petition for review a BIA's denial of a Belarusian citizen's application for asylum and related relief is granted and the decision vacated and remanded as, the IJ committed substantial legal error in rejecting certain of petitioner's corroborating evidence.    

Read Marynenka v. Holder, No. 07-1792

Appellate Information

Argued: October 27, 2009

Decided: January 25, 2010

Judges

Opinion by Chief Judge Michael

Counsel

For Appellant:  Joshua Adam Berman, Blaine L. Gilbert & Associates, PA

For Appellee:   Lauren Fascett, Office of Immigration Litigation, US Department of Justice

Lee v. US Citizenship & Immigration Serv., No. 08-1659

In a Korean National's action under the Administrative Procedure Act challenging the validity of 8 C.F.R. section 245.10(j), following the denial of his application for adjustment of status by the District Director of the United States Citizenship & Immigration Services, district court's dismissal of the action is affirmed as, the district court did not have jurisdiction to entertain petitioner's challenge to the District Director's eligibility determination and subsequent denial of adjustment of status.   

Read Lee v. US Citizenship & Immigration Serv., No. 08-1659

Appellate Information

Argued: October 27, 2009

Decided: January 25, 2010

Judges

Opinion by Chief Judge Traxler

Counsel

For Appellant:   Ivan Yacub, Falls Church, Virginia

For Appellee:   Jason Daniel Medinger, Office of the US Attorney

US v. Abdelshafi, No. 08-4884

District court's conviction of defendant, an owner of a medical transportation services provider, for health care fraud and aggravated identity theft and sentenced to sixty-two months' imprisonment is affirmed where: 1) district court did not err in ruling that defendant's conduct of use of Medicaid patients' identifying information was without lawful authority and violated section 1028A(a)(1); and 2) district court did not err in imposing a two-level enhancement to defendant's Guidelines' offense level for abuse of trust.  

Read US v. Abdelshafi, No. 08-4884

Appellate Information

Argued: December 2, 2009

Decided: January 25, 2010

Judges

Opinion by Chief Judge Agee

Counsel

For Appellant:   John Britton Russell, Jr., DurretteBradshaw, PLC

For Appellee:   Errington Atkinson, Office of the Attorney General of Virginia

United Rentals, Inc. v. Angell, No. 09-1209

District court's order affirming a bankruptcy court judgment allowing the bankruptcy trustee to avoid and recover certain payments made to plaintiff during the 90 days prior to the bankruptcy petition is affirmed as, regardless of whether the transfers set in motion a chain of events that resulted in the debtor's recoupment of the amounts paid, plaintiff did not show that such new value was given to the debtor as part of a contemporaneous exchange.     

Read United Rentals, Inc. v. Angell, No. 09-1209

Appellate Information

Argued: December 2, 2009

Decided: January 22, 2010

Judges

Opinion by Chief Judge Traxler

Counsel

For Appellant:  James Durling Fullerton, Fullerton & Knowles, PC

For Appellee:  James Bigelow Angell, Howard Stallings From & Hutson, PA

US v. Fennell , No. 08-7238

District court's imposition of a 96 months' imprisonment on a defendant convicted of conspiracy to distribute and possess with the intent to distribute more than 50 grams of cocaine base is vacated and remanded for resentencing as, the district court misapprehended the scope of its discretion at the resentencing as a sentencing court may use any reasonable method in calculating a downward departure during resentencing and is not limited by any specific method previously used.   

Read US v. Fennell , No. 08-7238

Appellate Information

Argued: December 3, 2009

Decided: January 21, 2010

Judges

Opinion by Circuit Judge Davis

Counsel

For Appellant:  G. Alan DuBois, Office of the Public Defender

For Appellee:  Anne Margaret hayes, Office of the US Attorney

US v. Williams, No. 08-5000

Based on evidence seized from defendant's home during execution of a search warrant issued in the investigation of threatening  and sexually explicit emails concerning minor boys sent by the defendant, conviction for possession of an unregistered machine gun and an unregistered silencer is affirmed where: 1) the search for and seizure of the child pornography fell within the scope of the warrant, or in the alternative, its seizure was justified under the plain-view exception to the warrant requirement; 2) the seizure of the machine gun and the silencer was justified by the plain-view exception.   

Read US v. Williams, No. 08-5000

Appellate Information

Argued: September 22, 2009

Decided: January 21, 2010

Judges

Opinion by Senior District Judge Niemeyer

Counsel

For Appellant:  Todd M. Richman, Office of the Federal Public Defender

For Appellee:  Andrew McCormack, Office of the US Attorney

US v. Martinez-Melgar, No. 08-4569

Sentence on a defendant convicted of drug trafficking and firearm possession is vacated and remanded for resentencing as the district court clearly erred in concluding, on the basis of the record, that defendant's admission of guilt occurred in a judicial proceeding in open court, and as such, certain criminal history points should not have been assessed.  

Read US v. Martinez-Melgar, No. 08-4569

Appellate Information

Argued: December 4, 2009

Decided: January 20, 2010

Judges

Opinion by Senior District Judge Ellis

Counsel

For Appellant:  Ann Loraine Hester, Federal Defenders of Western North Carolina, Inc.

For Appellee:  Mark Andrew Jones, Office of the United States Attorney

Jones v. Sussex I State Prison, No. 07-6705

In habeas proceedings claiming that petitioner's Fifth Amendment rights were violated by being punished twice for the same offense, district court's denial of the petition is affirmed where: 1) applying AEDPA, state courts' adjudication of the double jeopardy claim was not "contrary to," or an "unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States"; and 2) the appellate court did not unreasonably determine that defendant's abduction of the victim was a distinct offense under Virginia law warranting separate punishment.     

Read Jones v. Sussex I State Prison, No. 07-6705

Appellate Information

Argued: December 2, 2009

Decided: January 15, 2010

Judges

Opinion by Circuit Judge Motz

Counsel

For Appellant:   John Granville Douglass, University of Richmond, School of Law

For Appellee:   Steven Andrew Witmer, Office of the Attorney General of Virginia

H&R Block E. Enter. Inc. v. Raskin, No. 08-2162

In plaintiff-H&R Block's action seeking declaratory and injunctive relief with respect to enforcement of Maryland's Credit Services Businesses Act (CSBA), involving whether the Act applies to one of plaintiff's products, a "refund anticipation loan," grant of partial summary judgment to each party in ruling that certain of the CSBA's provisions are preempted is vacated and remanded as the district court erred in not analyzing, as the first step in the preemption analysis, whether the CSBA in fact applies to plaintiff.  

Read H&R Block E. Enter. Inc. v. Raskin, No. 08-2162

Appellate Information

Argued: October 29, 2009

Decided: January 15, 2010

Judges

Opinion by Circuit Judge King

Counsel

For Appellant:   Jerrold Joseph Ganzfried, Howrey LLP

For Appellee:  Jonathan R. Krasnoff, Office of the Attorney General of Maryland

Galustian v. Peter, No. 09-1069

An order dismissing plaintiff's defamation suit for forum non conveniens is reversed in part and vacated and remanded where: 1) denial of plaintiff's motion to amend to join another defendant is reversed as the district court abused its discretion in preventing plaintiff's amendment as of right; and 2) dismissal of the case for forum non conveniens as to defendant is vacated as the ruling was premature because another defendant was rightfully added as a defendant. 

Read Galustian v. Peter, No. 09-1069

Appellate Information

Argued: October 29, 2009

Decided: January 15, 2010

Judges

Opinion by Circuit Judge Gregory

Counsel

For Appellant:   Frank Alwin Edgar, Jr., Kaufman & Canoles PC

For Appellee:   Christopher Scott Anulewicz, Balch & Bingham LLP

Alton H. Piester, LLC v. Nat'l Labor Relations Bd., No. 09-1148

A finding by the National Labor Relations Board (Board) that employer violated section 8(a)(1) of the National Labor Relations Act is affirmed where: 1) substantial evidence support the Board's decision that the employer's statements at the meeting constituted a section 8(a)(1) violation; and 2) the Board's decision that a discharged employee was engaged in protected, concerted activity on a particular day was a reasonable one.     

Read Alton H. Piester, LLC v. Nat'l Labor Relations Bd., No. 09-1148

Appellate Information

Argued: October 28, 2009

Decided: January 15, 2010

Judges

Opinion by Circuit Judge Traxler

Counsel

For Appellant:  Charles F. Thompson, Malone Thompson & Summer, LLC

For Appellee:   Milakshmi V. Rajapakse, NLRB

Erwin v. Coggin, No. 08-1564

District court's imposition of personal liability on defendant for payroll withholding taxes owed by a company, where he owned a one-third interest and served as its corporate officer and director and conducted various business transactions on its behalf, is affirmed where: 1) defendant's own admissions demonstrate, as a matter of law, that he was a responsible person under 26 U.S.C. section 6672 during the relevant tax periods; and 2) the record demonstrates that the company generated several million dollars in gross receipts after the relevant period and paid rent and food vendors with those funds instead of paying the IRS, and thus, by preferring its other creditors to the IRS, defendant willfully failed to remit the company's payroll taxes for the fourth quarter of 1998 and the first three quarters of 1999.   

Read Erwin v. Coggin, No. 08-1564

Appellate Information

Argued: September 23, 2009

Decided: January 13, 2010

Judges

Opinion by Circuit Judge Motz

Counsel

For Appellant:   Emma Claire Merritt, Tuggle Duggines & Meschan, PA

For Appellee:   Christine Durney Mason, US Department of Justice

US v. Engle, No. 08-4497

In a conviction of defendant for tax evasion, district court's imposition of a sentence to four years' probation, conditioned on the service of eighteen months' home detention with work release and international travel privileges is vacated and remanded where: 1) the district court committed significant procedural error by minimizing of the seriousness of defendant's conduct, failing to consider the relevant policy statements and the need for general deterrence, and insufficiently explaining the reasons for its view that a term of imprisonment was not required; and 2) the sentence imposed was substantively unreasonable because of the district court's improper focus on defendant's financial ability to pay restitution.    

Read US v. Engle, No. 08-4497

Appellate Information

Argued: September 23, 2009

Decided: January 13, 2010

Judges

Opinion by Chief Judge Traxler

Counsel

For Appellant:   Matthew Theodore Martens, Office of the US Attorney

For Appellee:  James Frank Wyatt, Wyatt & Blake, LLP

US v. Gore, No. 08-4462

In a conviction of defendant for forcibly assaulting a correctional officer at the Federal Correctional Institution and resisting and opposing correctional officers, district court's refusal to give defendant's form of instruction for his affirmative defense is affirmed as, a prisoner charged with a violation of 18 U.S.C. section 111 must, to succeed on the affirmative defense of self-defense, demonstrate that he responded to an unlawful and present threat of death or serious bodily injury.   

Read US v. Gore, No. 08-4462

Appellate Information

Argued: October 30, 2009

Decided: January 12, 2010

Judges

Opinion by Circuit Judge Niemeyer

Counsel

For Appellant:   Travis Ray Fitzwater, Law Office of Travis R. Fitzwater

For Appellee:  David Earl Godwin, Office of the US Attorney

In Re: Jones, No. 08-2177

In defendants' Chapter 7 proceedings, district court's judgment that plaintiff-creditor had the right to repossess their vehicle is affirmed where: 1) district court did not err in holding that the Bankruptcy Abuse Prevention and Consumer Protection Act (BAPCPA) eliminated the ride-through option; 2) plaintiff had authority to repossess the vehicle pursuant to the contract's ipso facto clause without giving the defendants prior notice of a right to cure the default under state law; and 3) plaintiff was not required to give defendants notice of default and right to cure before repossessing the vehicle as both parties agree that the event that triggered default, the filing of a bankruptcy petition, cannot be cured.      

Read In Re: Jones, No. 08-2177

Appellate Information

Argued: September 23, 2009

Decided: January 11, 2010

Judges

Opinion by Circuit Judge Shedd

Counsel

For Appellant:    Andrew Steven Nason, Pepper & Nason

For Appellee:  Stephen P. Hale, Hale Dewey & Knight, PLLC

US v. Day, No. 08-5231

In a conviction of defendant for being a drug user in possession of a firearm and possession of marijuana, district court's grant of defendant's motion to suppress as to the marijuana and to all statements about the firearm and the marijuana is reversed and remanded as, defendant has not met his burden of proving the existence of an agency relationship between the government and the private security guards whose conduct is under challenge.   

Read US v. Day, No. 08-5231

Appellate Information

Argued: October 28, 2009

Decided: January 8, 2010

Judges

Opinion by Circuit Judge King

Counsel

For Appellant:  Richard Daniel Cooke, Office of the United States Attorney

For Appellee:  Mary Elizabeth Maguire, Office of the Federal Public Defender

Ferreli v. Express Check Advance of SC, LLC, No. 09-2401

In a class action lawsuit against business entities that make payday loans, decision of the district court to remand the case to state court for lack of subject matter jurisdiction is affirmed as, for the purposes of determining subject matter jurisdiction under the Class Action Fairness Act of 2005, a limited liability company is an "unincorporated association" as that term is used in 28 U.S.C. section 1332(d)(10) and therefore is a citizen of the state under whose laws it is organized and the state where it has its principal place of business.   

Read Ferreli v. Express Check Advance of SC, LLC, No. 09-2401

Appellate Information

Argued: October 27, 2009

Decided: January 8, 2010

Judges

Opinion by Circuit Judge Niemeyer

Counsel

For Appellant:  William Clifford Wood, Jr. Nelson Mullins Riley & Scarborough LLP

For Appellee:   Joseph Camden Wilson, Pierce Herns Sloan & McLeod