Docket – March 26, 2019

4th U.S. Circuit Court of Appeals

United States v. Hawley (P), 4th Cir. (Wynn) from EDNC at Raleigh (Howard).

Following the defendant’s drug- and firearm-related convictions, the district court properly sentenced him to 57 months’ imprisonment.

The district court imposed this sentence in part to account for the defendant’s criminal history, which included a prior sentence of 30 days’ imprisonment for an uncounseled misdemeanor offense. The appellant contends that it was error to count this offense in calculating his sentence. But the background commentary to the Sentencing Guidelines at § 4A1.2 provides a general rule that prior sentences are to be counted if they are “not otherwise excluded.” Because this plain language contemplates that it is providing a non-exhaustive list, the inference of negative implication proposed by the defendant is inappropriate.

In addition, because the defendant voluntarily proceeded without counsel in the prior proceeding, the district court did not err in counting the prior misdemeanor conviction in determining defendant’s Guidelines’ advisory range.

Affirmed. Judge Richardson wrote a concurring opinion.

Court of Appeals of Virginia

Bondi v. Commonwealth (P), CAV (O’Brien) from Va. Beach (Padrick).

The defendant-appellant was properly convicted for object sexual penetration, committed when he was youth pastor for the victim.

The Commonwealth’s evidence was sufficient to establish that appellant accomplished the object sexual penetration by force. The appellant argues that the victim did not testify that appellant held her down or restrained her during the attack. However, when the victim tried to leave, he grabbed her arm, pulled her back down on the sofa, and penetrated her vagina again with his fingers. The victim, a teenager at the time, felt that she had to stay at the appellant’s home because he was “aggressive” and “insistent” when she tried to leave. She said she was “completely frozen and in shock” during the penetration and experienced considerable physical pain as a result. She also remained fearful of the appellant after the incident.

The evidence also was sufficient to prove that the crime was committed by intimidation. The victim testified that he was her mentor and father figure, “[o]ne of the people [she] trusted the most and valued the most.” Because of the betrayal and distrust she felt after the assault, the victim didn’t disclose the full details of the crime until years after the offense. A factfinder could reasonably conclude that the appellant exercised emotional dominance over the victim through his actions. She was susceptible to psychological pressure as a result of her relationship with the appellant and her sexual inexperience as a teenager. Her testimony of her fear, pain, and feeling of paralysis demonstrated that the appellant overcame her mind and will by placing her in fear of bodily harm.

Finally, although the appellant asserts that the victim lacked an independent recollection of the crime, particularly penetration, until her therapy in 2016, the record demonstrates otherwise.


O’Donoghue v. United Continental Holdings Inc. (P), CAV (Decker) from Va. WCC.

The Virginia Workers’ Compensation Commission properly denied benefits to a Dulles Airport employee who was electrocuted at work.

Here, evidence was that, as the claimant put his finger on a plane’s toggle switch, he saw a blue arc come out of the plane’s panel box and felt it course through his body. The employer defended the claim on the ground that the cause of the injuries was either unexplained or an act of God (lightning in this case) and, consequently, was not compensable.

Although possible causes of electrocution in this case other than lightning, such as a discharge of static electricity from the airplane or an electrical malfunction, would constitute compensable actual risks of the claimant’s employment, the appellant didn’t exclude lightning as a possible cause of his injuries. Critically, on this record, Virginia’s controlling case law specifically involving lightning strikes compels the conclusion that the Commission did not err in refusing to award benefits.

The Commission was also entitled to draw reasonable inferences from the evidence regarding the weather alert system. One such inference is that the claimant could have been hit by an initial lightning strike that was then detected by the system, triggering the ramp closure that occurred soon after the claimant was hit. Additionally, the response system might have detected lightning in the area, and the claimant might still have been struck by lightning after the detection but before notification of the alert reached the ramp on which the claimant was working. Consequently, the evidence in the record doesn’t disprove as a matter of law the theory that the claimant was injured by a lightning strike rather than by an electrocution wholly unrelated to lightning.

Affirmed. Judge Huff dissented.

Categories: Daily Dockets

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