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

May 2010 Archives

In US v. Lewis, No. 09-4343, the Fourth Circuit faced a challenge to a conviction of defendant for unlawful possession of a firearm by a convicted felon.  In affirming the conviction, the court held that the district court did not err when it denied defendant's motion to suppress, as well as in applying the 2005 guidelines in effect at the time of defendant's offense, in determining that the application of the amended 2008 guidelines would contravene the Ex Post Facto Clause.   

US v. Roe, No. 08-5203, concerned a conviction of defendant for impersonating an officer or employee of the United States, in violation of 18 U.S.C. section 912.  First, the court held that the district court did not abuse its discretion in admitting a sergeant's testimony as lay testimony.  Second, the court determined that sufficient evidence supports the jury's conclusion that defendant "acted as" a federal police officer.  Lastly, because the instruction did not allow defendant to be convicted of a crime not included in the indictment, the district court did not erroneously amend the indictment in violation of defendant's Fifth Amendment rights.    

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Reduction of Attorneys' Fees From $6M to $600K Vacated

In In re: Abrams & Abrams, P.A., No. 09-1283, the Fourth Circuit faced a challenge to the district court's reduction of an award of attorneys' fees from $6 million to $600,000, arising from an $18 million settlement with the insurer of the drunk driver responsible for their client's permanent and severe disabilities.   

As stated in the decision: "Particularly when such a steep and indeed drastic reduction from the fee provided in the retainer agreement was ordered, some care in explanation might be expected.  The district court here neglected to consider several critically important factors in its analysis.  For example, it failed to adequately address the contingency of the fee, the award involved and the results obtained, and the fee awards made in similar cases."

Thus, district court's order is vacated and remanded as, although a district court does possess discretion in approving fee awards, particularly when its power to protect minors or the disabled is involved, the district court abused that discretion by improperly applying the standards established for determining whether an attorney's fee is reasonable pursuant to the applicable Barber/Allen factors. 

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Defendant's Sentence for Perjury in a Bankruptcy Case Upheld

In US v. Boulware, No. 09-5125, the Fourth Circuit faced a challenge to the district court's imposition of a 15-month sentence upon a defendant convicted of fraudulently making a declaration under penalty of perjury in a bankruptcy case

As the court wrote: "The indictment did not characterize Boulware's failure to disclose the prior bankruptcies as being part of a plan to avoid making payment to specific creditors.  Rather, the indictment focused on the fact that her nondisclosure constituted a false declaration made to the bankruptcy court under penalty of perjury."

Thus, defendant's sentence is affirmed as, the district court did not err by using U.S.S.G. section 2J1.3 rather than section 2B1.1 to set her offense level, as the gravamen of the charge was that defendant interfered with the bankruptcy court's administration of justice, not that she defrauded any creditors.  Furthermore, even assuming that the district court committed procedural error in failing to sufficiently explain the sentence imposed in light of the section 3553(a) factors, any error was harmless.     

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Criminal Matters, Plus Coal Miners' Suit for Health Benefits

Parsons v. Power Mountain Coal Co., No.09-1822, concerned an action by two former coal miners to collect retirement health benefits allegedly owed to them by their former employer.  Because the Resolution of Dispute opinions (RODs) deserve the usual deferential review, the judgment of the district court  upholding the arbitrator's judgment in favor of the plaintiffs is affirmed. 

In US v. Dean, No. 08-4439, the court faced a challenge to the  district court's imposition of a career offender sentence enhancement upon a defendant for his drug possession conviction.  In affirming the sentence enhancement, the court held that the district court was justified in its finding that defendant's prior drug felony offenses were separated by an intervening arrest and thus that defendant qualified for a career offender enhancement.      

US v. Bynum, No. 08-4207, the court faced a challenge to a conviction for transporting and possessing child pornography and an imposition of a  192-months' sentence.  In affirming the conviction and the sentence in their entirety, the court held that the FBI's administrative subpoenas did not invade any legitimate privacy interest possessed by defendant, and as such there was no Fourth Amendment violation.  The court rejected defendant's challenge to the sufficiency of the affidavit supporting the search warrant, as well as his evidentiary challenges.  The court also held that the district court did not abuse its discretion in admitting an analyst's testimony to determine the authenticity of child pornography, and even if the court did err in admitting the testimony, any error is harmless.  Lastly, the within-Guidelines sentence is substantively reasonable.     

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Denial of Motions to Remand Suit Under CAFA Upheld

In Moffitt v. Residential Funding Co., LLC, No. 10-1316, the Fourth Circuit dealt with plaintiffs' three interlocutory appeals challenging the district court's denial of their motions to remand their cases to state court, arising from their individual complaints against various financial entities alleging violations of the Maryland Secondary Mortgage Loan Law. 

Under these circumstances, where the plaintiffs filed amended complaints in federal court that alleged facts giving rise to federal diversity jurisdiction under the Class Action Fairness Act of 2005 after their cases were removed and prior to moving to remand, it need not be decided whether the cases were improperly removed as the amended complaints provided an independent basis for the district court to retain jurisdiction.   

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