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Channel: Judge Roger L. Gregory | Virginia Lawyers Weekly
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Fugitives Can’t Challenge Foreign Seizures 

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In this civil forfeiture action arising from criminal copyright infringement and money laundering charges against Kim Dotcom and others allegedly in­volved in the “Mega Conspiracy,” the 4th Circuit affirms entry of default judgment for the government in its ef­fort to seize funds deposited in claim­ants’ names in banks in New Zealand and Hong Kong, after ...

Controller’s Accounting Fraud Conviction Upheld 

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Although the government, in its retrial of a home-building company’s controller for ac­counting fraud, dropped earlier charges due to the unreliability of a computer forensics expert’s estimation of the number of emails defendant had deleted from the company’s system, the district court did not err in refus­ing to allow defendant to introduce evidence related to ...

S.C. Strong-Arm Robbery Is ‘Violent Crime’ 

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The 4th Circuit affirms a defendant’s mandatory 15-year sentence under the Armed Career Criminal Act for unlawful possession of a firearm; his prior convic­tion for South Carolina strong arm rob­bery qualifies as a violent felony under the ACCA. The ACCA defines “violent felony,” in pertinent part, as having as an element the use, attempted use ...

Court Upholds Firearm Dealer License Requirement 

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The 4th Circuit affirms a refusal to dismiss an indictment charging de­fendant with violating 18 U.S.C. § 922 for unlicensed dealing in firearms and conspiracy to deal firearms without a license; the prohibition against unli­censed firearm dealing comports with the Second and Fifth Amendments both facially and as applied, and is a valid exercise of ...

Sex Offender’s Removal Order Vacated 

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The 4th Circuit grants a petition for review of the Board of Immigrations Ap­peals’ decision finding petitioner, a na­tive and citizen of El Salvador, remov­able based on a Maryland conviction for third-degree sex offense; the court vacates the order of removal and orders petitioner’s immediate release from De­partment of Homeland Security custody. In 2014, petitioner ...

Post-Resentencing Habeas Petition Not ‘Successive’ 

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A habeas petition filed after defendant was resentenced for a 1993 murder conviction counts as his first petition under 28 U.S.C. § 2254 to challenge the new judgment; the 4th Circuit says the petition is not second or successive and denies petitioner’s motion seeking leave to file a successive petition, as unnecessary. Defendant was convicted ...

Failure to Exhaust Is Affirmative Defense 

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The 4th Circuit reverses dismissal of a suit filed by an inmate who was assigned to a lower bunk because of missing toes on his right foot, and who fell and suffered injuries while climbing the ladder to the upper bunk he was given; the district court improperly sua sponte examined plaintiff’s administrative exhaustion requirement. ...

Habeas Ordered for Bad Immigration Advice 

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A defendant who pleaded guilty to trafficking in counterfeit goods based on his trial lawyer’s mistaken advice that he would not be guilty of an aggravated felony that made him automatically deportable to Jamaica, is entitled to habeas relief based on his lawyer’s Sixth Amendment violation of defendant’s right to constitutionally effective assistance of counsel; ...

No Residual Clause Challenge for USSG 

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A defendant sentenced as a career offender under the federal sentencing guidelines cannot use Johnson v. U.S. to challenge a guideline residual clause that allowed classification of his prior unlawful wounding conviction as a crime of violence, the 4th Circuit says. In March 18, 2013, defendant pleaded guilty to three counts of possession with intent ...

No Qualified Immunity for Prisoner Retaliation Claim 

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The 4th Circuit reinstates plaintiff prisoner’s First Amendment claim against defendant correctional officials who allegedly retaliated against him by filing an “Incident Report” after he complained that the mailroom supervisor had opened his confidential legal mail; the district court erred in holding defendants had qualified immunity. Immunity decision When this case came before the district court ...

Big win, big payday 

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An attorney’s fee award case that has ping-ponged between Alexandria federal court and the 4th Circuit has been lobbed back to the lower court. But this time the trial judge has not been asked to reconsider its $1.2 million fee award for a law firm that was jilted after winning a $26 million judgment in ...

Court Upholds Injunction Against Travel Order 

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The 4th Circuit upholds the district court’s imposition of a nationwide preliminary injunction against enforcement of Section 2(c) of Executive Order 2 issued by President Trump as in the interests of national security, imposing a 90-day halt to immigration from six countries – Iran, Libya, Somalia, Sudan, Syria and Yemen. Bad faith We affirm in substantial ...

First-Offender Drug Plea Was ‘Conviction’ 

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Petitioner’s 2005 criminal proceedings under a first-offender statute for cocaine possession, Va. Code § 18.2-251, constituted a “conviction” as defined in 8 U.S.C. § 1101(a)(48)(A), making petitioner, a Mexican citizen, ineligible for cancellation of removal; the 4th Circuit denies his petition for review of the BIA order. The state court judge vacated the finding of ...

Court Reinstates $2.3M Win for Pretrial Detainee 

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The 4th Circuit reverses a Maryland district court and reinstates plaintiff’s $2.3 million jury award against Baltimore police officers for violation of plaintiff’s civil rights in the use of questionable investigative strategies – including the officers’ failure to inform the state’s attorney that DNA reports excluded plaintiff as a sexual assault suspect and the victim ...

Appeals court rebukes prosecutors in death penalty case 

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A federal appeals court panel has ordered an evidentiary hearing to determine if undisclosed evidence could upset the conviction of a man sentenced to die for the 2004 Norfolk murders of four people, including two preschool girls. Ruling that U.S. District Judge John A. Gibney Jr. was too quick to close the door on new ...

Eighth Amendment – ‘Rough Ride’ – Excessive Force – Deliberate Indifference 

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If, as the plaintiff-prisoner forecasts, prison guards gave him a “rough ride” in a prison van in order to teach him a lesson about filing grievances, then the driver used excessive force and the other guard was deliberately indifferent. The court reverses summary judgment for these two guards. The court affirms summary judgment for the ...

Sentencing – Procedurally Unreasonable – Downward Departure Arguments 

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In imposing a within-Guidelines sentence on defendant for armed robbery and brandishing a firearm during a crime of violence, the district court made cursory reference to two of defendant’s arguments for a downward departure (his opiate addiction and the influence of his elder brother) but failed to even acknowledge six other non-frivolous arguments: (1) the ...

Appeals – Untimely – First Impression – Sua Sponte Dismissal 

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It is the government’s responsibility to raise the issue of the untimeliness of a defendant’s appeal; however, the defendant in this case had already pursued collateral review before he filed his direct appeal more than three years late. This is one of the rare situations in which the court should consider invoking Fed. R. Crim. ...

No Qualified Immunity for Prisoner Retaliation Claim 

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The 4th Circuit reinstates plaintiff prisoner’s First Amendment claim against defendant correctional officials who allegedly retaliated against him by filing an “Incident Report” after he complained that the mailroom supervisor had opened his confidential legal mail; the district court erred in holding defendants had qualified immunity. Immunity decision When this case came before the district court ...

Big win, big payday 

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An attorney’s fee award case that has ping-ponged between Alexandria federal court and the 4th Circuit has been lobbed back to the lower court. But this time the trial judge has not been asked to reconsider its $1.2 million fee award for a law firm that was jilted after winning a $26 million judgment in ...
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