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Week 13 (2020)

Week of April 6, 2020 through April 10, 2020

United States v. Keene (Keenan 4/9/2020): The  Fourth Circuit held that Congress intended for individuals to be convicted under 18 U.S.C. § 1959, which imposes criminal penalties for committing violent crimes in aid of racketeering activity, for assault with a dangerous weapon when they engage in conduct violating both the enumerated federal offense as well as a state law offense, regardless whether the two offenses are a categorical match. The court thus reversed the decision of the district court, and remanded for the district court to reinstate the dismissed charges alleging Virginia brandishing. Full Opinion

Polfliet v. Cuccinelli (Wynn 4/7/2020): The Fourth Circuit held that 8 U.S.C. § 1155’s plain language commits visa petition revocation decisions to the Secretary’s discretion; and therefore, 8 U.S.C. § 1252(a)(2)(B)(ii) denies courts jurisdiction to review such decisions. The court thus affirmed the district court; however, it emphasized that the dismissal of Appellants’ claims in this proceeding for lack of jurisdiction does not preclude a court of appeals, from reviewing them under 8 U.S.C. § 1252(a)(2)(D) upon a petition from a removal proceeding. Full Opinion

Highlight Case

In re Moore, 955 F.3d 384 (4th Cir. 2020)

  • Majority Opinion: Harris
  • Argued: January 30, 2020
  • Decided: April 9, 2020

The Fourth Circuit denied a petition for a writ of mandamus, asking that the court direct Judge Conrad to recuse from presiding over petitioner’s criminal trial. The Fourth Circuit acknowledged that recusal might be required at a future point; however, it concluded that the extraordinary relief of mandamus was not warranted at this stage of the proceedings. In reaching its conclusion, the court held petitioner failed to show a clear and indisputable right to immediate recusal based on grounds involving a future sentencing which may never materialize. 

Petitioner was indicted by a grand jury on two counts of Hobbs Act robbery, one count of brandishing a firearm during and in relation to a crime of violence, and one count of possession of a firearm by a convicted felon. Petitioner had previously been convicted of three bank robberies. If Petitioner is convicted, he could face a mandatory life sentence under the federal three-strikes statute if the district court determines his prior convictions are serious violent felonies, and thus strikes for three-strikes purposes. However, if petitioner is convicted at trial, he can avoid a life sentence if he establishes by clear and convincing evidence that two of his prior bank robbery convictions did not involve the use or threatened use of a firearm or other dangerous weapon and did not result in death or serious bodily injury to any person. Petitioner’s trial was to be held before Judge Robert J. Conrad who had represented the United States Government as an Assistant U.S. Attorney in one of petitioner’s prior bank robbery convictions. Accordingly, petitioner moved for Judge Conrad’s immediate recusal. When Judge Conrad denied the motion, petitioner filed a writ of mandamus asking the Fourth Circuit to recuse Judge Conrad from presiding over petitioner’s trial. 

The Fourth Circuit observed a writ of mandamus is a drastic remedy which requires petitioner to show a clear and indisputable right to the relief sought. The court reasoned petitioner did not have such a claim on Judge Conrad’s dismissal from the entire criminal trial. Assuming arguendo that petitioner would have a right to Judge Conrad’s recusal at sentencing, the court concluded at this stage of the proceedings it is unclear whether petitioner would ever be sentenced. Thus, because the grounds for recusal were uncertain and contingent on future events, petitioner could not meet the high standard necessary for a writ of mandamus.  

Accordingly, the Fourth Circuit denied the petition for a writ of mandamus.

Full Opinion

Ryan Romano