U.S. Fourth Circuit: February 2010 Archives
U.S. Fourth Circuit - The FindLaw 4th Circuit Court of Appeals Opinion Summaries Blog

February 2010 Archives

Rulings In Criminal Cases

The Fourth Circuit decided two criminal cases today, one involving a challenge to district court's imposition of a mandatory minimum sentence based on violation of a state's blue-light statute, and a second criminal case involving suppression of evidence.

In US v. Rivers, No. 09-4336, the court faced a challenge to the imposition of a mandatory fifteen-year minimum sentence on a defendant convicted of a being a felon in possession of a firearm under the Armed Career Criminal Act. 

In light of the Supreme Court's decision in Chambers v. US., the court reversed district court's decision and held that a violation of South Carolina's blue light statute does not qualify as a predicate offense for purposes of the ACCA. 

In US v. Rooks, No. 08-4725, the court faced a challenge to the denial of motion to suppress and conviction for drug related crime.

As stated in the decision: "Because Nunez detected marijuana in the Mercury, he was authorized to conduct  a pat-down for weapons; Nunez could therefore position Rooks in such a way as to facilitate that procedure."

Thus, the court held that the drugs discarded by defendant and his statement to the officer were not the fruit of an unconstitutional seizure, and as such, district court did not err in denying defendant's motion to suppress.  Defendant's remaining contentions were rejected including district court's sentencing of defendant as a career offender. 

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In In Re: Grand Jury Subpoenas (T-112), No. 06-2125, the Fourth Circuit faced a challenge to the district court's finding of contempt of twelve corporations suspected of participating in financing terrorist activities, for refusing to turn over documents demanded by grand jury subpoena.

In rejecting claims brought by one of the corporations of Fourth Amendment violations and illegal wiretapping, the court held that a grand jury enforcement action is not the appropriate place to litigate the validity of such claims.

The court also rejected claims by the other eleven corporations that the contempt order was an abuse of discretion because the order was ambiguous and that they did not know that they were violating a valid decree.  The court upheld the contempt order concluding that the defendants' claims did not square with the facts on the record.

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Denial of Applications for Withholding of Removal and Asylum Upheld

In Gao v. Holder, No. 07-2070, the court faced a challenge to the BIA's denial of Chinese petitioner's applications for withholding of removal and asylum.

In approving the Attorney General's finding that a conviction for unlawful export is an aggravated felony under section 1231(b)(3)(B), the court stated: "The statute does not declare that some categories of crimes may not be considered particularly serious. Instead, it creates a per se rule that some aggravated felonies must be considered particularly serious and then leaves it up to the Attorney General to 'decide[ ]' whether other crimes are as well."

Thus, in affirming the denial of petitioner's applications based on her conviction for unlawful export, the court ruled that an offense need not be an aggravated felony to qualify as a particularly serious crime for withholding and that BIA may determine that a non-aggravated felony is a particularly serious crime for asylum purposes on a case-by-case determination.

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Failure to Explain Sentence Plainly Unreasonable

In US v. Thompson, No. 09-4247, the Fourth Circuit dealt with a criminal defendant's challenge to revocation of his supervised release and sentencing him to 18 months' imprisonment. 

As noted by the circuit court, "A district court commits significant procedural error where it "fail[s] to adequately explain the chosen sentence." Gall v. United States, 552 U.S. 38, 51 (2007)." Further, "The district court provided no such statement here. Instead, it simply stated: 'It's the judgment of the Court the defendant be committed to the custody of the Federal Bureau of Prisons for a term of 18 months.'"

Although the circuit court "may be hard-pressed to find any explanation for within-range, revocation sentences insufficient given the amount of deference we afford district courts when imposing these sentences ... [nevertheless] a district court may not simply impose sentence without giving any indication of its reasons for doing so."

In reversing the sentence, the court concluded that the district court's failure to provide any reasons for the sentence it imposed was plainly unreasonable.

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Decision Vacating Arbitration Award in Wrongful Termination Case Upheld

In Raymond James Fin. Servs., Inc. v. Bishop, No. 09-1038, the Fourth Circuit addressed the issue of a decision by the district court vacating an award of compensatory damages rendered by an arbitration panel for three former employees of defendant-company for wrongful termination.

As stated in the decision: "Notwithstanding that the appellant's fundamental claim was one for wrongful termination, we agree with the district court that the award in this case cannot be understood as based on anything other than the arbitrator's finding that defendant committed a breach of fiduciary and legal duties when its in-house lawyer, Bostic, provided legal representation to the appellants in third-party arbitration proceedings."

Then the court found that the arbitration panel committed no mere error of law in rendering an award whose underlying legal basis exceeded the bounds of arbitrable employment-related disputes cognizable under National Association of Securities Dealers Rule 10101.

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In Culosi v. Bullock, No. 09-1042, the Fourth Circuit faced a challenge by a police officer, whose motion for summary judgment on the ground of qualified immunity, for the fatal shooting of an optometrist being investigated for gambling offenses, was denied by the district court. 

As stated in the decision: "It is clear that the district court found that whether the death of Dr. Culosi was the result of intentional force willfully applied by Officer Bullock, or an accident, was a factual issue for the jury at trial."

Thus, in affirming the denial, the court held that it lacked the jurisdiction to consider defendant's interlocutory appeal.  Furthermore, the court affirmed dismissal of of all claims against all defendants other than the defendant-officer under the Rule 54(b). 

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Dismissal of Habeas Petition Challenging Guilty Plea Upheld

In Appleby v. Warden, N. Reg'l Jail & Corr. Facility, No. 07-7613, the Fourth Circuit was faced with a criminal defendant's challenge to his sentence of life imprisonment arguing that the recidivist proceeding against him was the consequence of his guilty plea (which he later argued rendered his plea not knowing and involuntary) to drunk-driving related offenses.

In denying defendant's relief, the West Virginia Supreme Court of Appeals (WVSCA) held that because "the imposition of a life sentence is not 'definite, immediate and largely automatic,'" the recidivist proceedings are a collateral consequence of a guilty plea and that the sentencing court did not need to advise a defendant about habitual offender law before accepting a guilty plea to a predicate offense under that law.

In affirming WVSCA's decision, the court found that the recidivist proceedings were not a direct consequence of defendant's guilty plea, and therefore his plea was knowing and voluntary. Thus, the state court's decision was not contrary to or an unreasonable application of established federal law as determined by the Supreme Court. 

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Contractual "Pay-When-Paid" Clause Upheld

In Universal Concrete Prod. Corp. v. Turner Constr. Co., No. 09-1569, the Fourth Circuit dealt with the issue of the applicability and enforceability of a "pay-when-paid" clause agreed to by a general contractor and its subcontractor.

As stated in the decision: "[W]e believe that under Virginia law, the contract unambiguously reflects both parties' understanding that Universal would only be paid for its work after Turner was paid by the owner."  According to the facts in the case, by the time the subcontractor had substantially completed all of its work, the owner could no longer finance the project due to the recent collapse of the real estate market, and the general contractor could not pay the subcontractor because it had not been paid by the owner.

In affirming the decision of the District Court, the Court held that the pay-when-paid clause in the parties' subcontract, incorporated by reference from the prime contract, is enforceable and prevents the subcontractor from demanding payment for its work unless the general contractor is first paid by the owner.

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Denial of Motions for Sentence Reductions Reversed

In US v. Munn, No. 09-7525, the US Court of Appeals for the Fourth Circuit addressed a criminal defendant's challenge to the district court's denial of his motion for a reduced sentence under 18 U.S.C. section 3582(c)(2). 

In reversing the denial, the Court held that the district court misinterpreted the limits of its authority when it denied defendant's motion for a reduced sentence under section 3582(c)(2) as defendant's career offender designation does not bar a sentence reduction based on Amendment 706 if (i) the sentencing court granted an Overrepresentation Departure from the career offender guidelines range, and (ii) the court relied on the Crack guidelines in calculating the extent of the departure.

In a second case dealing with a defendant's motion for a reduction in his sentence, US v. Stewart, No. 08-6575, district court's denial of the motion was in error as a district court considering a motion to reduce a sentence, even one which is below the amended guidelines, under section 3582(c)(2) must treat the sentence the defendant is currently serving as the "original term of imprisonment. As in this case, when a defendant is serving a below-guidelines sentence as a result of a Rule 35 motion by the government, defendant's sentence may be further reduced comparably to the previous reductions received under his section 3582(c)(2) motion. 

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US v. Herder, No. 08-4420

Conviction of defendant for drug related crimes and sentenced to 41 months' imprisonment is affirmed in part, vacated in part, and remanded where: 1) the direct and circumstantial evidence presented at trial was more than ample to support the jury's verdict; 2) district court did not abuse its discretion in denying defendant's request for a "mere proximity" jury instruction; 3) defendant's sentence is vacated and remanded as, on the record, district court did not understand that it had discretion to depart from the Guidelines, and was therefore, procedurally unreasonable; and 4) the order of forfeiture is affirmed as , district court did not clearly err in finding that defendant intended to use the $1,223 to commit, or to facilitate the commission, of the offenses for which he was convicted.   

Read US v. Herder, No. 08-4420

Appellate Information

Argued: October 30, 2009

Decided: February 11, 2010

Judges

Opinion by Circuit Judge Davis

Counsel

For Appellant:   Geremy C. Kamens, Office of the Federal Public Defender

For Appellee:   David Brian Goodhand, Office of the US Attorney

US v. Morace, No. 09-4007

In a conviction of defendant for possession of child pornography, district court's imposition of 5 years of probation and an order to pay a $3000 fine is vacated and remanded as, the court erred by failing to provide an adequate explanation of why a term of imprisonment is not warranted in light of applicable policy statements. 

Read US v. Morace, No. 09-4007

Appellate Information

Argued: December 4, 2009

Decided: February 11, 2010

Judges

Opinion by Circuit Judge Shedd

Counsel

For Appellant:   Joe Exum, Jr., Office of the US Attorney

For Appellee:   Eric Joseph Brignac, Office of the Federal Public Defender

Ward v. Dixie Nat'l Life Ins. Co., No. 08-2378

In a class action lawsuit against multiple insurance companies alleging that defendants violated a contractual promise under insurance policies to pay policyholders the "actual charges" of cancer treatments, judgment in favor of the plaintiffs is affirmed where: 1) under the three-step retroactivity analysis, the presumption against retroactivity operates to bar the application of the South Carolina statute to the claims in this case; and 2) defendants' remaining arguments are meritless.     

Ward v. Dixie Nat'l Life Ins. Co., No. 08-2378

Appellate Information

Argued: December 1, 2009

Decided: February 8, 2010

Judges

Opinion by Circuit Judge Wilkinson

Counsel

For Appellant: Kenneth W. Starr, Kirkland & Ellis, LLP

For Appellee:   Richard Harpootlian, Richard A. Harpootlian, PA

Weintraub v. Quicken Loans, Inc., No. 08-2373

In plaintiffs' action under the Truth in Lending Act against defendant for refusing to refund a $500 deposit plaintiffs' demanded after they attempted to exercise their right to rescind prior to closing on a loan to refinance their house, summary judgment for defendant is affirmed as a consumer cannot exercise the right to rescind created by 15 U.S.C. section 1635(a) until after consummation of a consumer credit transaction.     

Read Weintraub v. Quicken Loans, Inc., No. 08-2373

Appellate Information

Argued: October 29, 2009

Decided: February 5, 2010

Judges

Opinion by Circuit Judge Niemeyer

Counsel

For Appellant: J. Brady Jr.

For Appellee:   Michael R. Ward, Morris & Morris

US v. Mehta, No. 08-4489

Defendant's conviction and sentence for aiding and assisting in the preparation of false tax returns and other crimes is affirmed where: 1) the evidence was sufficient to prove that the information was transmitted by interstate wire communication in furtherance of a scheme to defraud, thus satisfying each element of the offense; and 2) the district court did not err in calculating the tax loss for sentencing purposes.  

Read US v. Mehta, No. 08-4489

Appellate Information

Argued: October 30, 2009

Decided: February 5, 2010

Judges

Opinion by Circuit Judge Shedd

Counsel

For Appellant:  David Schertler, Schertler & Onorato LLP

For Appellee:   David Ira Salem, Office of the US Attorney

In plaintiffs' action against defendants-labor unions, alleging that the union provided them with false information regarding their eligibility to receive retirement incentive packages in 2007, the judgment of the district court is affirmed in part, vacated and reversed in part and remanded where: 1) district court correctly ruled that the defendants timely filed the notice of removal; and 2) the district court was without subject matter jurisdiction over the retirees' claims because the doctrine of complete preemption does not apply here to create a basis for removal under 28 U.S.C. section 1441 

Read Barbour v. Int'l Union United Auto. Aerospace & Agric. Implement Workers of Am., No. 08-1740

Appellate Information

Argued: September 22, 2009

Decided: February 4, 2010

Judges

Opinion by Circuit Judge Agee

Counsel

For Appellant:  Thomas C. Costello, West & Costello LLC

For Appellee:   Ava Barbour, International Union, UAW

King v. McMillan, No. 08-1667

In plaintiff-former deputy's suit against a sheriff in his official capacity under Title VII for sexual harassment and in his individual capacity under Virginia law for battery, district court's substitution of new sheriff as the defendant in her official capacity in the Title VII claim and jury verdict in favor of plaintiff is affirmed as to accept defendant's argument that because each sheriff in Virginia is by state law a singular entity with an independent tenure, she could not be substituted in her official capacity as the successor to the former sheriff in the Title VII claim, would be to allow a state law to override Title VII in violation of the Supremacy Clause.  Defendants' remaining challenges are rejected. 

Read King v. McMillan, No. 08-1667

Appellate Information

Argued: October 30, 2009

Decided: February 3, 2010

Judges

Opinion by Circuit Judge Michael

Counsel

For Appellant:  John Adrian Gibney, Jr., Thompson McMullan, PC

For Appellee:    Elizabeth Kay Dillion, Guynn Memmer & Dillion, PC

In an action for breach of contract, district court's holding that the  original decision to seek specific performance precluded the non-repudiating party from being able to claim monetary damages is reversed as there is no reason why, as a general matter, a party who initially seeks specific performance cannot later switch his preferred relief to an award of damages in the event that specific performance is rendered impractical or impossible. 

Read Homeland Training Center, LLC. v. Summit Point Auto. Research Center, No. 08-2272

Appellate Information

Argued: October 27, 2009

Decided: February 3, 2010

Judges

Opinion by Circuit Judge Wilkinson

Counsel

For Appellant:  John Harlan Mahaney, II, Huddleston & Bolen LLP

For Appellee:    William Richard McCune, Jr.

US v. Wright, No. 08-4679

In a prosecution for being a felon in possession of a firearm, district court's sentence of life imprisonment is affirmed where: 1) the district court properly relied on defendant's prior juvenile convictions to enhance his sentence under the ACCA; 2) district court properly rejected defendant's argument that his juvenile burglaries do not constitute prior offenses under the ACCA because he did not carry a firearm while committing a crime of violence; and 3) district court did not err in sentencing defendant to life in prison as the sentence was reasonable in light of his instant offense, his adult conviction for aggravated assault and battery, and his three prior convictions for burglary of firearms from residences.      

Read US v. Wright, No. 08-4679

Appellate Information

Argued: December 2, 2009

Decided: February 3, 2010

Judges

Opinion by Circuit Judge Wilkinson

Counsel

For Appellant:  David Bruce Betts

For Appellee:    Carrie Ann Fisher, Office of the US Attorney