Docket – March 5, 2019

4th U.S. Circuit Court of Appeals

United States v. Mills (P), 4th Cir. (Niemeyer) from WDNC at Charlotte (Conrad).

Any error that the district court might have committed in treating the defendant’s prior North Carolina conviction as a crime-of-violence predicate was harmless because the court would have reasonably imposed the same 70-month sentence regardless of how it resolved a disputed Sentencing Guidelines issue.

The defendant’s sentence was at the low end of the advisory range that the district court applied based in part on the defendant’s prior North Carolina conviction for assault with a deadly weapon inflicting serious injury – which the court possibly incorrectly found was a “crime of violence.” But the district court stated that even if it did not treat the prior conviction as a qualifying predicate, it would have imposed the same 70-month sentence as an upward variance sentence.


United States v. Simmons (P), 4th Cir. (Gregory) from WDNC at Charlotte (Conrad).

The district court erred in revoking the defendant’s supervised release and sentencing him to 36 months in prison after determining that the defendant committed the North Carolina offense of assault with a deadly weapon on a government official. The revocation sentence was predicated on the determination that the assault offense is a “crime of violence” under the 2016 Sentencing Guidelines and, thus, a Grade A supervised release violation. But this court concludes that the offense is categorically not a “crime of violence,” so the revocation sentence was anchored to an improperly calculated Guidelines range.

Vacated and remanded. Judge Duncan wrote a concurring opinion.

Williams v. Strickland (P), 4th Cir. (Floyd) from DSC at Beaufort (Duffy).

The district court did not err in denying a motion for summary judgment for two law enforcement officers seeking qualified immunity.

The plaintiff claimed that the officers violated his Fourth Amendment rights by using deadly force while arresting him (shooting him). If they started or continued to fire on the plaintiff after they were no longer in the trajectory of his car, they violated his right to freedom from excessive force. This right falls well within the ambit of law clearly established by a 2005 ruling by this court, which obviously and manifestly encompasses the facts of this case.

Because a reasonable jury could conclude that the officers acted in a way that violated Williams’s clearly established federal rights, they are not entitled to summary judgment on the basis of qualified immunity.


Court of Appeals of Virginia

Johnson v. Commonwealth (P), CAV (Beales) from Brunswick (Sharrett).

Absent an insanity defense, expert testimony about a criminal defendant’s mental state at the time of the offense is inadmissible at trial. The affirmative defense provided by Code § 46.2-817 does not in any way contradict existing the Supreme Court of Virginia’s precedent to that effect.

Here, the defendant was found guilty of eluding police in violation of Code § 46.2-817. She was free to, and did, present non-expert testimony relevant to her state of mind and subjective belief that, at the time of her offense, PTSD made her reasonably believe that her pursuer was not a law enforcement officer. But the trial court didn’t err in excluding expert testimony on that point.


Massey v. Commonwealth (U), CAV (Chafin) from Norfolk (Hall).

The defendant’s probation officer impermissibly imposed a probation condition that contradicted an express term of probation the circuit court had imposed earlier. In that order, the circuit court expressly allowed the defendant to have contact with children under the supervision of an adult who knew about his prior conviction. Despite this express term, the officer unilaterally prohibited him from having any contact with children. Therefore, the circuit court erred in revoking the defendant’s suspended sentenced based on this alleged violation of the unilateral modification.

Reversed and dismissed.

Virginia Circuit Courts

Hyat v. Hina, Fairfax (Bernhard).

The court lacks jurisdiction to enter a child custody order in this divorce action. A prior order from the Fairfax Juvenile and Domestic Relations District Court determined child custody within six months after the child left the Commonwealth. At this time, the child and mother have resided in another state for more than six months preceding the divorce filing of the divorce, and the father has also decamped to Washington, D.C.

First, the court is not contemplating modification of one of its own orders, thereby not satisfying the continuing jurisdiction requirements of Code § 20-146.13, which would in any case require at least one parent or the child remain present in the Commonwealth. Moreover, pursuant to Code § 20-146.12(B), Virginia was not the child’s state of residence at or within six months before the time of filing of the divorce complaints, and neither parent currently resides in the Commonwealth.

Thus, the court doesn’t have subject-matter jurisdiction to consider entry of a child custody order.

Forge LLC v. Pearson, Fairfax (Ortiz).

Because a confessed judgment was in an amount larger than that provided for in the parties’ agreement, the court lacked jurisdiction to grant the confessed judgment. Therefore, it is void ab initio.

There is no dispute that the confessed judgment amount was erroneous because it was calculated incorrectly, and its value exceeded the amount agreed to in the Note. The attorney-in-fact confessed judgment in the amount of $117,500, with “interest thereon, and costs of the case, including attorney’s fees.” Thus, interest and attorney’s fees are not included within the $117,500 amount but instead should be added “thereon.” The confessed judgment improperly decrees interest upon interest and a double recovery of attorney’s fees, which the Note does not support. It was impossible for the defendant to owe the amount stated in the confessed judgment.

Since Code § 8.01-432 allows a debtor to confess only as much principal and interest as the creditor may accept a judgment for, the court did not have jurisdiction to accept the confessed judgment. It is void ab initio and the defendant could have moved to eradicate it at any time.

Defendant’s motion to vacate confessed judgment granted.

Categories: Daily Dockets

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