U.S. Fourth Circuit: October 2011 Archives
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October 2011 Archives

4th Flashback: Bad Costume Sanctions Violate Free Speech Rights

In honor of Halloween, we’re looking back at a Fourth Circuit Court of Appeals cautionary tale involving college students and bad costume choices.

Packs of college kids can make bad decisions; especially when costume parties are involved.

One of the fraternities at our school was banned from campus for a year after one of its pledges dressed as a slave, complete with blackface, for its Halloween party. The party is still remembered as the event that left a one-year hangover.

Court Reinstates Biker Gang Charges for Possessing a Firearm

If we had a dollar for every time we had wished for more biker-gang cases in the appellate courts, we would be rich, (and full of guilt for wishing for more criminal cases.)

Regardless, the Fourth Circuit Court of Appeals - not known for releasing published opinions - pulled through for us this week with this little gem.

Defendants Richard Weaver, Elmer Moore, Kim Berryman, Steven Knight, Brian Mitchell, and Michael Phelps are alleged members of the Pagans Motorcycle Club (PMC), a gang located primarily along the East Coast.

Collateral Estoppel Bars $17 Million FTCA Claim Against Judges

Suspension from legal practice may be embarrassing, but it's not the end of the world. Some attorneys might take up a new hobby during suspension. Others would bide their time contracting as a researcher. Alexander Zeno passed his suspension time with a $17 million pro se lawsuit against the Justice Department under the Federal Tort Claims Act (FTCA).

Zeno is a criminal defense attorney who practices law primarily in Puerto Rico. He currently resides in Maryland, (which explains how this case made its way to the Fourth Circuit Court of Appeals).

Repeat Offenders' Sentences Remanded in Response to Simmons

Before August, federal judges in North Carolina were laying down the law, sentencing repeat offenders to more jail time than their offenses warranted.

The reason? Judges were sentencing based on the punishment a “hypothetical” defendant could receive, rather than the punishment an identically-situated defendant should receive.

The Fourth Circuit Court of Appeals, however, tossed the “hypothetical” defendant standard out the window in August, which has led to a flood of sentencing appeals.

Liberty University Appeals Individual Mandate Claim to SCOTUS

Liberty University is the latest plaintiff to file an individual mandate appeal with the Supreme Court. The conservative school, founded by Rev. Jerry Falwell, filed the appeal on Monday.

Liberty University Attorney Mathew Staver expects the court to decide whether to consider the case before it takes its December break, reports The Wall Street Journal.

The Fourth Circuit Court of Appeals rejected Liberty University’s individual mandate challenge in September. Liberty argued that the penalties to be assessed for non-compliance with the Affordable Care Act were unconstitutional; the court found that individual mandate penalties could not be reviewed under the Anti-Injunction Act (AIA) because penalties are a type of tax that cannot be attacked through pre-enforcement.

4th Circuit Overturns Armed Career Criminal Sentence Enhancement

This week, the Fourth Circuit released what our Southern roots recognize as "a mess of opinions" in United States v. Vann, a case examining presentencing reports, sentence enhancements, and grammar in a guilty plea.

What, you might wonder, constitutes a mess? How about 7 separate opinions totaling 100 pages.

If you do criminal defense work within the Fourth Circuit Court of Appeals' jurisdiction, and represent a client who wants to enter a guilty plea, you unfortunately need to read this case. If you want an idea of what you're getting into, we're here to help.

Henry Floyd Confirmed for Fourth Circuit in Rare Unanimous Vote

U.S. District Judge Henry Floyd was confirmed to a seat on the Fourth Circuit Court of Appeals by a 96-0 vote on Tuesday.

Floyd is a rare judge who has served in all three branches of government. While in law school at the University of South Carolina, Floyd was elected to the South Carolina House of Representatives, where he served until 1978. From 1979 through 1991, Floyd was Commissioner on the South Carolina Forestry Commission. During that time, Floyd also had law practice and served as counsel for Pickens County.

Ken Cucinelli Pursues Individual Mandate Appeal

Virginia Attorney General Ken Cucinelli isn’t giving up on his Affordable Care Act challenge quite yet.

After the Fourth Circuit Court of Appeals found that 26 state plaintiffs lacked standing to challenge the Act, Cucinelli, better known to healthcare reform watchers as the driving force behind one of the two individual mandate lawsuits the Fourth Circuit rejected in September, asked the Supreme Court to examine the standing ruling.