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

April 2010 Archives

US v. Tucker, No. 08-6964, concerned a federal inmate's 28 U.S.C. section 2255 motion claiming that his counsel provided ineffective assistance in failing to object to the use of his misdemeanor assault and battery conviction as a predicate offense for purposes of sentencing him as an armed career criminal and for failing to appeal his sentence on this ground.

In vacating the district court's denial of the motion, the court held that defendant's counsel's failure to object to the use of the misdemeanor conviction as a predicate violent felony conviction was objectively unreasonable and this failure prejudiced defendant. 

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In Robinson v. Clipse, No. 08-6670, the Fourth Circuit faced a challenge to the district court's grant of defendant's motion for summary judgment in plaintiff's section 1983 suit against a highway patrolman, arising from his arrest and conviction for failing to stop for patrolman's blue light and for possession of a stolen vehicle. 

In reversing the judgment, the court held that the district court erred in granting the summary judgment to the patrolman based on running of the statute of limitations because Rule 15(c)'s requirements have been satisfied, the amendment naming the patrolman as defendant relates back to the date of the original complaint.

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Sentencing Issues in Criminal Matters

U.S. v. Hernandez, No. 08-5057, concerned a challenge to the district court's imposition of a 262-month imprisonment, at the low end of the advisory guidelines range, and as requested for by the defendant during sentencing, for his drug conviction.  In holding that the sentence was not procedurally unreasonable because the explanation given in the context of this case was adequate, district court's sentence is affirmed. 

US v. Bethea, No. 09-4333, concerned a challenge to the district court's imposition of an enhanced 180-month sentence upon a defendant after determining that he had three prior ACCA-predicate convictions, including his prior conviction for violating South Carolina's escape statute.  However, because a conviction under South Carolina's escape statute does not inherently constitute a violent felony and because it cannot be determined whether defendant's conduct here necessarily violated the statute in a way that would bring him under the ACCA's ambit, his sentence is vacated and remanded. 

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Challenge to Conviction Based on Forcible Medication Order Denied

In US v. Bowles, No. 09-4219, the Fourth Circuit faced a challenge to a defendant's conviction for being a felon in possession of a firearm and sentenced to 188 months' imprisonment. 

In rejecting defendant's claim that the trial court erred by ordering him to be forcibly medicated to render him competent to stand trial, the court affirmed the conviction, holding that defendant has waived his right to challenge the forcible medication order as he cannot reopen his judgment of conviction upon his guilty plea on a nonjurisdictional issue. 

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Decisions in Criminal Matters, Plus Breach of Contract/Tort Claim

In US v. Merced, No. 09-1844, the Third Circuit faced a government's challenge to district court's imposition of a five-year, well below the recommended guidelines, sentence for a drug possession conviction.  In vacating and remanding the case for resentencing, the court concluded that the district court may have sentenced the defendant based on personal policy disagreement with the scope of the career offender provision of the guideline.  If the variance was granted on such grounds, the court must clearly explain whether it is based on a policy disagreement with section 4B1.1 and the court must also justify that decision as required by precedents.  Furthermore, the district court failed to analyze highly relevant sentencing factors, section 3553(a)(6), as the court's choice of sentence may have created a risk of unwarranted disparities between defendant and similarly situated recidivist crack cocaine dealers. 

US v. Vosburgh, No. 08-4702, involved a conviction for possession of child pornography and attempted possession of child pornography.  In affirming the convictions, the court held that the district court did not err in denying defendant's motion to suppress as the search warrant was supported by probable cause as the IP address connected to a criminal attempt to access child pornography was fairly traceable to defendant's apartment and the information in the warrant application describing that attempt was not stale.  Defendant's variance claim and that it caused him prejudice is rejected as is defendant's challenge to sufficiency of evidence.  Lastly, district court did not abuse its discretion by permitting the government to introduce legal, child erotica pictures found on defendant's hard drive and the court did not err in allowing testimony concerning the age of a girl depicted in an exhibit. 

Lastly, Pediatrix Screening, Inc. v. Telechem Int'l, Inc. No. 08-1391, involved a business dispute, between two parties involved in genetic screening, alleging breach of contract and fraudulent misrepresentation claims, among others.  In vacating the district court's orders denying Pediatrix's Rule 59 motion and that it could not argue insufficient evidence because it failed to timely raise the issue, the court held that Pediatrix's gist of the action challenge was fully aired in the district court and preserved for appellate review.  On the merits, the district court erred in its disposition of the gist of the action question as there is too much uncertainty surrounding the "misrepresentation" on this record to determine whether the gist of the action was in tort or in contract.

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Suit for Express and Implied Indemnity For FHA & ADA Violations

In Archstone Multifamily Series I Trust v. Niles Bolton Assoc., No. 09-1453, the Fourth Circuit faced a challenge to the district court's grant of summary judgment in favor of defendant and denial of plaintiff's motion to amend its complaint to include a claim for contribution in a suit for express and implied indemnity, breach of contract and professional negligence, arising from an underlying suit against the parties for FHA and ADA violations in the construction of multi-family housing projects throughout the U.S.

In affirming the district court's grant of summary judgment, the court held that the de facto indemnification state-law claims are preempted under federal law and the district court did not abuse its discretion in determining that the proposed amendment would be unduly prejudicial to defendant. 

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Finding of Federal Tax Liability Upheld

In US v. Bergbauer, No. 08-2054, the Fourth Circuit faced a challenge to a district court's grant of summary judgment to the government establishing defendants' federal tax liability in concluding that the sale of defendant's interest in a subsidiary of Ernst & Young LLC was a fully taxable event in the year 2000. 

In affirming the district court's decision, the court held that as reflected in the record, the district court did not err in finding that both prongs of the "economic reality" test have been satisfied, where there was an intent to recognize the value of all the stock at issue as taxable income in 2000 and the parties bargained at arms-length for and received, real economic benefit from treating all the stock at issue as received for income tax purposes in 2000. 

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In US v. Ayala, No. 07-4577, the circuit court dealt with an appeal following the prosecution of members of a violent street gang under various statutes, including the Racketeer Influenced and Corrupt Organizations Act (RICO) and the Violent Crimes in Aid of Racketeering (VICAR) statute.

Defendants' convictions and sentences are affirmed as: 1) the court rejects defendant's claim that his conviction under the VICAR statute was for the same conduct as that he was punished for under RICO, and thus constituted double jeopardy; 2) a RICO conspiracy to commit crimes including murder, kidnapping, and robbery is by its nature a crime of violence for purposes of defendant's conviction under 18 U.S.C. section 924(c) for using or carrying a firearm during and in relation to a crime of violence; 3) defendant's evidentiary challenges are rejected; 4) other defendant's claim that the district court unduly limited his ability to cross-examine the two teenage victims of a gang rape is rejected; 5) the district court's did not err in deciding not to instruct the jury on the definition of reasonable doubt; and 6) the district court's admission of the testimony of three expert witnesses did not violate the Confrontation Clause, as each was subject to cross-examination about his judgment.   

In Westmoreland Coal Co. v. Cox, No. 09-1240, the circuit court addressed a petition for review of a decision affirming an ALJ's award of benefits and attorney's fees under the Black Lung Benefits Act. The court found that the award of benefits was legally proper and supported by substantial evidence; but it reversed in part as the ALJ erred in granting an award of attorney's fees without first determining a prevailing hourly rate for the attorney's work. 

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Whitten v. Fred's, Inc., No. 09-1265, involved a challenge to the district court's grant of summary judgment against the plaintiff in her sexual harassment suit against her former employer. 

In addressing procedural issues not considered by the district court, the court held that the plaintiff properly exhausted state administrative remedies and timely filed her lawsuit.  Furthermore, the court held that judicial estoppel does not preclude plaintiff from pursuing her claims against her former employer because she disclosed her potential claims in her bankruptcy petition.

Next, in reversing the district court's grant of summary judgment in favor of the defendant, the court stated: "Under these circumstances, it is enough for us to note that Whitten's evidence, which shows that she was subjected to verbal abuse and, most importantly, to physical assaults of a highly sexual and offensive nature, is sufficient to create a question of fact as to the first three elements of her claim [under the South Carolina Human Affairs Law]."  As for the fourth and final element, the court concluded that the offender was plaintiff's supervisor rather than her co-worker, and as such, defendant is subject to vicarious liability for the supervisor's conduct.  However, on remand, the defendant will be allowed to assert affirmative defense to liability and damages as there was no tangible employment action and no official act precipitating the asserted constructive discharge. 

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US v. Carter, No. 09-4451, involved a challenge to a district court's imposition of an enhanced sentence for a possession with intent to distribute cocaine base conviction.  Defendant argued that the district court clearly erred in applying the enhanced sentence in finding that he recklessly created a substantial risk of serious bodily injury when he entered another person's residence while fleeing from the police when that person was not present.  However, the court affirmed the sentence and held that regardless of whether the resident is present at the time of the entry, applying the reckless endangerment enhancement is appropriate. 

US v. Johnson, No. 08-4042, involved a defendant's Fourth Amendment challenge to his conviction for various drug and firearm offenses.  In affirming district court's denial of defendant's suppression motions, the court held that, based on initial police observations witnessing defendant making series of hand-to-hand exchanges with multiple people in a known open-air drug market and subsequent conduct of defendant in his encounter with the police, the district court correctly rejected defendant's motions to suppress evidence arising out of the events and sufficient evidence supported the conviction.

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