Wake Forest Law Review

By Cole Tipton

SummitBridge National v. Faison

In this bankruptcy action, SummitBridge National (“National”) appeals the district court’s holding that it is barred from claiming attorney’s fees incurred after a bankruptcy petition was filed.  The contract between National and Ollie Faison (“Faison”) stated that Faison would pay “all costs of collection, including but not limited to reasonable attorneys’ fees.”  The Fourth Circuit reversed the district court’s holding and stated that the Bankruptcy Code does not preclude contractual claims to attorney’s fees that were guaranteed by a pre-bankruptcy contract.  The determination of the district court was reversed and remanded for further proceedings.

US v. Pratt

In this criminal action, Samual Pratt (“Pratt”) appeals his conviction of various counts of sex trafficking and child pornography due to evidentiary errors.  Pratt contends the district court should have suppressed evidence from his cellphone and should not have admitted certain hearsay statements.  First, the Fourth Circuit held that it was reversible error to admit evidence from Pratt’s cellphone because the phone was seized without consent and the government waited thirty-one days before obtaining a search warrant.  The Court stated that such a delay was unreasonable.  Second, the Fourth Circuit held that an unavailable witness’s hearsay statements were admissible because Pratt had procured the witness’s unavailability through phone calls and threats.  Accordingly, the Fourth Circuit vacated Pratt’s convictions on the two counts prejudiced by the cell phone evidence, vacated his sentence, and remanded.

Parker v. Reema Consulting Services, Inc 

In this civil action, Evangeline Parker (“Parker”) appeals the district court’s dismissal of her complaint against her employer, Reema Consulting Services, Inc. (“Reema”).  The central issue of the appeal was whether a false rumor circulated by Reema that Parker slept with her boss for a raise could give rise to liability under Title VII for discrimination “because of sex.”  The Fourth Circuit held that because the complaint alleged Reema spread the rumor and acted on it by penalizing the employee, a cognizable claim for discrimination “because of sex” was alleged.  The district court’s dismissal was reversed.

US Dep’t of Labor v. Fire & Safety Investigation

In this civil action, Fire & Safety Investigation Consulting Services, LLC (“Fire & Safety”) appealed the district court’s determination that they violated the Fair Labor Standards Act (“FLSA”) for failing to pay overtime compensation.  Fire & Safety uses an alternative work schedule for its employees in which an employee works 12 hours per day for 14 days and then receives 14 days off.  Because employees under this plan will work 88 hours in one work week, Fire & Safety pays its employees a blended rate for all 88 hours that is supposed to account for the 48 hours of overtime worked, rather than paying 40 hours of standard pay plus 48 hours of overtime.  The Fourth Circuit held that this blended rate fails to observe the formalities required by the FLSA which requires all overtime hours be recorded and paid at one and one-half times the standard rate of pay for all hours worked over 40.  Accordingly, the Fourth Circuit affirmed the district court’s judgment, including over $1.5 million in back wages and liquidated damages.

Trana Discovery, Inc. v. S. Research Inst.

In this civil action, Trana Discovery, Inc. (“Trana”) brought a fraud and negligent misrepresentation action against Southern Research Institute (“Southern”).  Trana alleged that Southern had provided false data in research reports of a new HIV medication it was researching.  The district court granted summary judgment for Southern on both claims.  The Fourth Circuit upheld the grant of summary judgement, stating that there was no genuine dispute of material fact due to an insufficiency of evidence regarding damages and the standard of care Southern was exacted to.  Accordingly, summary judgement was affirmed.

Jesus Christ is the Answer v. Baltimore County, Maryland

In this civil action, Jesus Christ is the Answer Church (“Church”) brought an action alleging violation of the First Amendment’s Free Exercise Clause, the Fourteenth Amendment’s Equal Protection Clause, the Maryland Declaration of Rights, and the Religious Land Use and Institutionalized Person Act.  Church alleged that Baltimore County, Maryland (“Baltimore”) had infringed upon their State and Federal rights by denying their modified petition for zoning variances to establish a church.  Several neighbors, who had expressed open hostility towards Church, opposed the petition.  After the petition was denied, Church filed an action in district court which was dismissed for failure to state a claim.  On appeal, the Fourth Circuit reversed and remanded because Church’s complaint contained facts sufficient to state a claim that was “plausible on its face.”  The Fourth Circuit held that the neighbors apparent religious bias towards Church was sufficient to plead a plausible Constitutional claim and violation of the Religious Land Use Act. 

Curtis v. Propel Property Tax Funding

In this civil action, Garry Curtis (“Curtis”) brought a suit on behalf of himself and similarly situated individuals against Propel Property Tax Funding (“Propel”), alleging violations of the Truth in Lending Act, the Electronic Funds Transfer Act, and the Virginia Consumer Protection Act.  Propel was engaged in the practice of lending to third parties to finance payment of local taxes.  The district court denied Propel’s motion to dismiss and certified two interlocutory questions.  Propel appealed, asserting that Curtis did not have standing and that he failed to state a claim for relief.  The Fourth Circuit upheld the district court’s ruling, finding that: 1) Curtis had standing because he was personally subject to the harms these consumer protection statutes were designed to protect against; and 2) Curtis had sufficiently pled violations of the lending acts because Propel was conducting consumer credit transactions.

US v. Charboneau

In this civil action, Blake Charboneau (“Charboneau”) challenges the determination that he is a “sexually dangerous person” under the civil commitment provisions of the Adam Walsh Child Protection and Safety Act of 2006.  The district court held that Charboneau was a “sexually dangerous person” within the meaning of the act and committed him to the custody of the Attorney General.  On appeal, Charboneau raised two issues: 1) whether he must be diagnosed with a paraphilic disorder to be committed under the act; and 2) if the record supported the district court’s findings.  The Fourth Circuit affirmed the district court’s judgment, holding that an actual diagnosis was not necessary under the act and the record was sufficient under a clear error standard of review.

US v. Johnson

In this criminal action, Willie Johnson (“Johnson”) appealed a district court’s order to resentence him for bank robbery under the sentencing recommendation in his original plea agreement.  Johnson argued that the government’s original agreement not to seek a mandatory life sentence under the federal three-strikes law was not beneficial because his prior state crimes should not be counted for federal three-strikes treatment.  The Fourth Circuit held that state crimes are encompassed by the three-strikes program and the district court’s decision to honor the original sentencing recommendation was affirmed.

Mountain Valley Pipeline, LLC v. 6.56 Acres of Land

In this civil action, owners of 6.56 acres of land appealed a district court judgement granted Mountain Valley Pipeline, LLC (“Pipeline”) a preliminary injunction for access and possession of property it was acquiring through eminent domain.  The Fourth Circuit reviewed the district court’s application of the test set forth in Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 20 (2008) for preliminary injunctions.  In doing so, the Court found that Pipeline had established it was likely to succeed on the merits, would suffer irreparable harm, the balance of equities was in its favor, and that an injunction served the public interest.  Accordingly, the district court was affirmed.

Booking.com B.V. v. US Patent & Trademark

In this civil action, Booking.com and the U.S. Patent and Trademark Office (“USPTO”) appeal the district court’s grant of summary judgment protecting the trademark BOOKING.COM.  Booking.com appeals the district court’s grant of attorney’s fees to the USPTO, and the USPTO appeals the court’s decision that BOOKING.COM is protectable.  The Fourth Circuit held that BOOKING.COM is not generic and can be registered as a descriptive mark with secondary meaning.  Moreover, the Court upheld the grant of USPTO’s expenses because the Lanham Act requires a party to pay “all the expenses of the proceeding” when a USPTO decision is appealed to the district court.  Thus, the district court’s judgment was affirmed.

US v. Jones

In this criminal action, James Eric Jones (“Jones”) appeals the district court’s denial of a motion to vacate, set aside, or correct his sentence.  Jones was originally sentenced under the Armed Career Criminal Act (“ACCA”) which requires a mandatory fifteen-year minimum sentence for defendants with at least three prior violent felony convictions.  However, Jones claims that he does not qualify for sentencing under the act because his South Carolina conviction for assaulting, beating, or wounding a police officer is not a violent conviction as defined by the ACCA.  The Fourth Circuit held that assaulting, beating, or wounding a police officer does not qualify under the ACCA because it includes conduct that does not involve violent physical force. Therefore, the district court’s judgment was vacated and remanded.

By Malorie Letcavage

On March 30, 2016, the Fourth Circuit released its published opinion in the criminal case of U.S. v. Under Seal Defendant. The Defendant was a juvenile and federal law prohibits the public release of that juvenile’s name in association with the proceedings, so the juvenile was referred to as Defendant. Defendant was charged with murder in aid of racketeering in violation of 18 U.S.C. §1959(a)(1). This statute has a mandatory sentence of either death or life imprisonment. The government filed a motion in the district court to transfer the Defendant for prosecution as an adult for this offense. The district court denied the motion because the prosecution would be unconstitutional. The government appealed, and the Fourth Circuit affirmed, agreeing with the lower court that it would be against precedent and the constitution to sentence juvenile offenders to death or life imprisonment.

District Court Denied Motion for Transfer

The government’s motion for transfer was based on 18 U.S.C. § 5031, which removes juveniles from the ordinary criminal process. The act allows juveniles who are fifteen years old and above to be transferred from juvenile status if they have committed certain crimes and the transfer would be in the interest of justice. The court consider factors such as age, social background, nature of offense, and prior record in determining whether to transfer the juvenile.

In this case, Defendant was a few months shy of being eighteen when he participated in a gang-related murder. After the government’s motion to transfer the defendant, Defendant opposed the motion arguing that Supreme Court decisions held that juvenile offenders could not be sentenced to death or mandatory life imprisonment. Despite the interest of justice factors supporting a transfer, the district court agreed with Defendant that it would be unconstitutional to transfer and impose either of those mandatory sentences.

The court reviewed the recent court cases on point, stating that Roper v. Simmons held that juvenile offenders could not be sentenced to death, while Graham v. Florida prohibited sentencing juvenile offenders to life in prison without parole for non-homicide offenses. In Miller v. Alabama, the Court held that juveniles could not be sentenced to life without parole for all but the rarest cases where juveniles were irreparably corrupt. 18 U.S.C. §1959, which Defendant is charged under, only authorizes death or life imprisonment as punishments but the case law does not allow these punishments for a charge of murder in aid of racketeering.

Severability and Combination of Penalties Not Allowed 

The government posited the argument that the statute could be read to sever the problematic portions. The court explained that if legislation can function independently after an unconstitutional portion is severed, then it could be saved. The court found that the defining feature of a criminal statute is its punitive effect, and that if the unconstitutional punishments are removed from 18 U.S.C. §1959 there is no penalty provision. This lack of a penalty in a criminal statute invalidates it, and thus the statute cannot function independently.

The government also suggested that the statute could be restructured so that the punishment for kidnapping in aid of racketeering could be applied to murder in aid of racketeering, The Fourth Circuit soundly rejected this argument because to do so would be to overstep the judiciary’s role and trespass on the legislative role. The court refused to combine the penalties for two distinct criminal acts in the statute.

The Fourth Circuit also distinguished United States v. Booker by finding that nothing in that case allowed the judiciary to replace language in one provision with language not previously applied in a wholly separate provision. Booker looked to legislative intent in determining severability, but in this case there was no legislative intent available.

Government’s Arguments Rejected 

Furthermore, the court found that combining the penalties would violate due process. One of the notions of fairness stemming from the Constitution is the right to notice of what conduct is illegal and how severe the punishment for that conduct will be. The Fourth Circuit refused to look outside the boundaries of the statute for an alternative penalty since death and life imprisonment were not allowed because this would not give the Defendant fair notice of the punishment the crime would entail. The court held that it would not create new punishments outside of the authorized statutory punishments in the statute.

The court then distinguished other cases the government had relied on. It held that the cases cited did not give persuasive support because in this case the crime was committed after the Miller decision. It also held that other case law relied on only considered how to remedy a mandatory life sentence that was validly imposed at the time but later found to be unconstitutional, which was different than Defendant’s case. The court also rejected the government’s argument that its holding would cause the reversal of many convictions.

Fourth Circuit Affirms Denial of Motion to Transfer

The Fourth Circuit affirmed the district court’s decision to deny the government’s motion to transfer the Defendant to be tried as an adult. It held that because the charge had mandatory sentences that were prohibited when applied to juveniles, a transfer that would impose those sentences would be unconstitutional.

By: Diana C. Castro

Today, in a published opinion, the Fourth Circuit Court of Appeals affirmed the District Court’s decision upholding a waiver to appeal a mandatory minimum sentence based on new United States Supreme Court precedent.

Defendant committed Armed Robbery at a Family Dollar Store and Subsequently Accepted a Plea Agreement.

Security cameras at a Family Dollar store captured Defendant Sherwin Archie, armed, demanding money from the cashier. Days later, police recovered the firearm used in the robbery when they executed a search warrant on Archie’s home. Archie subsequently confessed to the Family Dollar robbery.

Taking a plea deal, Archie pled guilty to possession of a firearm by a convicted felon in violation of 18 U.S.C. §§ 922(g)(1) (Count One); Hobbs Act robbery in violation of 18 U.S.C. § 1951 (Count Two); and using and carrying a firearm in furtherance of a crime of violence in violation of 18 U.S.C. § 924(c) (Count Three). In exchange for the guilty plea, the state dismissed three remaining charges.

Under the terms of the plea deal, Archie knowingly and expressly waived all rights, conferred by 18 U.S.C. § 3742, to appeal whatever sentence is imposed, including any issues that relate to the advisory Guideline range established at sentencing, and waived all rights to contest the conviction or sentence in any post-conviction proceeding. The plea agreement advised Archie of the statutory sentencing range for each charge and noted that, based on his criminal history, he could face a sentencing enhancement under the ACCA.

With regards to using and carrying a firearm in furtherance of a crime of violence, the District Court recognized that the seven-year minimum sentence applied only when the firearm was “brandished” during the crime, and the indictment did not assert brandishing as a separate element. Government counsel argued that brandishing was a sentencing factor that did not have to be specifically alleged in the indictment. Defense counsel did not object and the District Court accepted Archie’s guilty plea.

In preparation for sentencing, the United States Probation Office’s presentence investigation report (“PSR”) designated Archie an armed career criminal under the ACCA based on three prior felony convictions. The ACCA designation caused Archie’s statutory minimum sentence to increase. The PSR also included a minimum sentence for Count Three because the investigatory evidence established that Archie had brandished the firearm during the Family Dollar robbery.

Before sentencing, Archie objected to his career offender designation under the ACCA, arguing that the Government lacked adequate factual support for one of the previous convictions.

The District Court overruled Archie’s objection, concluding the records were sufficient by a preponderance of the evidence. Adopting the PSR, the District Court sentenced Archie to the mandatory minimum.

Four months after Archie’s sentencing, the Supreme Court decided Alleyne v. United States, 133 S. Ct. 2151 (2013). In Alleyne, the Court overruled existing precedent and held that “any fact that increases the mandatory minimum is an ‘element’that must be submitted to the jury” and found beyond a reasonable doubt. 133 S. Ct. at 2155. In Alleyne, as here, the mandatory minimum sentence was based on the court’s finding by a preponderance of the evidence at sentencing that a firearm was “brandished,” in violation of 18 U.S.C. § 924. The Supreme Court reversed and vacated the defendant’s sentence because the “[j]udge rather than the jury, found brandishing, thus violating [his] Sixth Amendment rights.” Id. at 2163-64.

Fourth Circuit Considered Whether the Defendant Waived the Right to Argue on Appeal that the District Court Improperly Enhanced His Sentence Based on Judicially Determined Facts in Violation of Alleyne v. United States.

The Fourth Circuit cited precedent to support the conclusion that when the Government seeks enforcement of an appeal waiver and there is no claim that the Government breached its obligations under the plea agreement, the waiver will be enforced to preclude a defendant from appealing a specific issue if the record establishes that the waiver is valid and the issue being appealed is within the scope of the waiver.

More narrowly, the Fourth Circuit rejected Archie’s challenge that his Alleyne claim falls outside the scope of the waiver appeal.

At the time of Archie’s sentencing, Supreme Court precedent under Harris v. United States, 536 U.S. 545, 568 (2002), stated that factors triggering mandatory minimum sentences did not need to be alleged in the indictment, submitted to the jury, or proven beyond a reasonable doubt. Thus, the District Court properly applied the law under Harris.

 Despite a Change in Precedent, a Party Cannot Request to Re-Bargain the Waiver of an Appeal.

The Fourth Circuit addressed the proper scope of an appeal waiver in light of a subsequent change in the law in United States v. Blick, 408 F.3d 162 (4th Cir. 2005). In that case, the Fourth Circuit focused largely on the idea that “[p]lea bargains rest on contractual principles, and each party should receive the benefit of its bargain.” Consequently, although the law changed, the defendant’s expectations did not change. A party cannot ask to re-bargain the waiver of an appeal based on changes in the law. Here, Archie assumed the risk of accepting the plea agreement in exchange for the Government’s concessions, and he was sentenced in the manner agreed upon.

Furthermore, the Fourth Circuit refused to invalidate the waiver holding that it has previously only done so when sentencing court violated a fundamental constitutional or statutory right that was firmly established at the time of sentencing.

In essence, the Fourth Circuit held that Archie’s claim does not fall within the scope of the valid appeal waiver because “defendants cannot knowingly and voluntarily enter an appeal waiver, receive a sentence that fully complies with the law applicable at the time of sentencing, and then, when that law later changes, argue that the issue falls outside the binding scope of the waiver.”

Fourth Circuit Considered Whether the Government Presented Sufficient Evidence to Sustain the Defendant’s Career Offender Designation Under the ACCA.

Archie argued that several of the computerized used to establish one of his previous violent felony conviction contained inconsistent dates, and one document included a criminal indictment number tied to another defendant. According to Archie, these inconsistencies, when coupled with the age of the conviction, “insert[ed] the possibility [of] more than just scrivener’s error but, indeed, wholesale mistake.”

Using a Deferential Standard of Review, the Fourth Circuit held that Certain Inconsistencies are Not Enough to Overturn the Trial Court’s Findings When There is Additional Evidence Indicating That The Mistake Was Likely a Scrivener’s Error. 

Reviewing the District Court’s judgment for clear error, the Fourth Circuit held that when faced with records that contain inconsistencies, such as different dates of the same offense, the court has previously concluded that certain discrepancies do not overturn the trial court’s conclusion when there is additional evidence to indicate that the mistake was likely a typographical error. Thus, as most of Archie’s arguments were based on allegations of such mistakes, the Fourth Circuit declined to disturb the District Court’s finding.

Fourth Circuit Affirmed the District Court’s Sentence.

By: Michael Klotz

In United States v. Groves, the Fourth Circuit affirmed that a district court has the authority to vacate a conviction without altering a defendant’s criminal sentence or ordering a new sentencing hearing, even when the court fails to acknowledge its authority to require a new sentencing hearing in its order.

Facts and Procedural History

Mr. Groves was previously convicted of operating a continuing criminal enterprise (21 U.S.C. § 838), using a firearm during a drug trafficking crime (18 U.S.C. § 924(c)(1)), and trading food stamps for cocaine base (7 U.S.C. § 2024(b)). As a result of these convictions he was sentenced to life in prison plus sixty months. In 2007, the Supreme Court held in Watson v. United States, 552 U.S. 74 (2007) that a person does not “use” a firearm under 18 U.S.C. § 924(c)(1) when he receives the gun in exchange for drugs. As a result, Mr. Groves filed a petition to set aside his conviction under 18 U.S.C. § 924(c)(1). The district court reviewed this charge under Watson, and ultimately vacated this conviction. Despite this change in the judgment, the district court imposed the same sentence of life in prison. On appeal, Mr. Groves contended that the district court acted erroneously by leaving intact a sentence that was imposed on the basis of a now unconstitutional mandatory sentencing scheme, and by failing to order a new sentencing hearing or to acknowledge its authority to do so.

Analysis

In United States v. Hillary, 106 F.3d 1170 (4th Cir. 1997), the Fourth Circuit made clear that a district court has “broad and flexible power to fashion an appropriate remedy in granting relief” including issuing a “new” sentence that is “the same as the original sentence.” Because Mr. Groves’s sentence under § 924(c)(1) ran concurrently with his other charges, the district court was permitted to vacate his conviction without altering the sentence. Further, the court rejected his contention that the court did not recognize it had the authority to order a new sentencing hearing. Finally, the Fourth Circuit held that there was no evidence that the failure to alter the sentence or to order a new sentencing hearing was reversible error. Although an appellate court must reverse a criminal sentence if it is not clear beyond a reasonable doubt that the court would have imposed the same sentence in the absence of a constitutional error, in this case there were “no non-speculative grounds” for concluding that under the discretionary sentencing scheme the court would have imposed a different sentence.