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Week 12 (2019)

Week of March 18, 2019 through March 21, 2019

Cabrera Vasquez v. Barr (Gregory 03/20/19): The Fourth Circuit granted Cabrera’s petition for review of her United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) claim, vacated the Board of Immigration Appeals’ (BIA) decision with respect to that claim, and remanded for further proceedings consistent with the opinion because the BIA failed to fully consider the evidence in support of Cabrera’s CAT claim. The Court reasoned that such a wholesome failure to fully consider Cabrera’s evidence of torture constituted reversible error. Full Opinion

Duncan v. Barr (Duncan 03/19/19) (amended 03/22/19): The Fourth Circuit held that whether the government would acquiesce to torture under the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) and whether Duncan was in the physical custody of his father under the Child Citizenship Act of 2000 (CCA) are mixed questions of fact and law and thus are subject to de novo review. The Court remanded the case, finding that the Board of Immigration Appeals (BIA) erred in reviewing for clear error the immigration judge’s legal judgment as to whether Duncan satisfied the CCA’s physical custody requirement. Full Opinion

Spencer v. Virginia State Univ., (Richardson 03/18/19): The Fourth Circuit held that the disparity between Spencer’s salary and her chosen comparators’ (two other professors at Virginia State University) did not violate the Equal Pay Act, nor did it violate Title VII as a sex-based wage discrimination. Thus, the Court affirmed the judgment of the district court. Full Opinion

Brundle v. Wilmington Tr., N.A.(Motz 03/21/19) (amended 03/22/19): The Fourth Circuit held that the trustee for the Employee Stock Ownership Plan (ESOP) had breached its fiduciary duties by not giving due diligence to an investment bank’s valuation of Constellis Group, Inc., causing the ESOP to overpay for the corporation’s stock by $29,773,250. The Court affirmed the judgment of the lower court for that amount in addition to attorney’s fees.  Full Opinion

Attkisson v. Holder (King 03/21/19): The Fourth Circuit held that there was no Fourth Amendment Bivensclaim with respect to the Attorney General and the Postmaster General because those individuals held much higher ranks than the line-level FBI agents in Bivens, a claim based on an unlawful electronic surveillance presents wildly different facts and a vastly different statutory framework from a warrantless search and arrest, and it would result in holding high-level officials accountable for policy-level decisions to target internal leaks to the media. The Court affirmed the judgment of the lower court dismissing the plaintiff’s claims. Full Opinion

Highlight Case

United States v. Davis, No. 18-4095

Decided: March 19, 2019

The Fourth Circuit held that the district court did not abuse its discretion in its admission of the challenged evidence and that Davis’s sentence was not procedurally unreasonable because the district court adequately explained its decision to credit the testimony of Davis’ coconspirators about drug quantities despite the acquittal on the conspiracy count. 

Davis was indicted in four counts with methamphetamine trafficking including conspiracy to distribute 50 grams or more of methamphetamine, possession of a firearm in furtherance of that conspiracy, distribution of 50 grams or more of methamphetamine, and possession of a firearm by a felon. The government offered testimony from the alleged coconspirator indicating that Davis was supplied with substantial amounts of methamphetamine to sell. The jury found Davis not guilty on the conspiracy count but found him guilty of distributing 50 grams or more of methamphetamine and possession of a firearm by a felon. Based on the jury’s acquittal of the conspiracy count, Davis objected to the district court’s use of the coconspirators’ testimony to determine drug quantities. Davis also challenged testimony from an officer explaining that the informant told him she purchased methamphetamine from Davis, photographs that an officer took of the informant’s cell phone as she was texting with Davis, and a recording of a phone call between the informant and a man identified by an officer as Davis.

The Fourth Circuit stated that sentencing courts may consider acquitted conduct in establishing drug amounts for the purpose of sentencing. The court must find the drug amounts established by a preponderance of the evidence. Even if a court knows that a jury had a reasonable doubt about drug quantities, that doubt would not preclude the court’s finding of those quantities by a preponderance of the evidence. Thus, the Court reasoned that Davis’s argument failed because it presumed that in acquitting Davis on the conspiracy count, the jury made a factual finding about drug quantities testified to by the coconspirators. 

The Court affirmed the admission of the officer’s testimony because Davis failed to show that admission of this evidence would affect his substantial rights and seriously affect the fairness of the trial. Additional testimony that asserted the same allegations as the officer’s testimony had been admitted into evidence and not challenged by Davis. Further, while Davis challenged the admission of the photographs due to lack of authentication, the Fourth Circuit determined that the record contained ample evidence to create a prima facie showing that the informant was texting with Davis when the officer took the pictures. Finally, the Court agreed with the government that the officer could authenticate the telephone recording due to his prior in-person conversations with Davis, and thus, the recording was admissible.

Accordingly, the Fourth Circuit affirmed the judgment of the district court.

Full Opinion

Davis Banks