United States v. Nelson

. 405 F.2d 14, 17 (1968) (bench trial); United
States
v. Burgos, 94 F.3d 849, 862 (4th Cir. 1996) (en banc) (trial by
jury).
See also Jackson v. Virginia, 443 U.S. 307, 319 (1979); Glasser
v.
United States, 315 U.S. 60, 80 (1942).
Here, Koonge contends that the evidence was insufficient to
sustain
either the DUI or the reckless driving charge. We disagree.
Several
individuals testified that Koonge smelled of alcohol at the scene
and
appeared disoriented. Additionally, Koonge's own testimony was
inconsistent, and he admitted he crossed the median. Thus, there
was
sufficient evidence from which a reasonable trier of fact could
have
determined that Koonge was driving under the influence of alcohol
on
4
the George Washington Parkway and that his failure to control his
vehicle amounted to reckless driving. As there was independent
evi-
dence to support these conclusions, we cannot fault the
magistrate
judge for choosing to discredit the testimony of Koonge. The
fact-
finder's credibility determinations are not a subject of
appellate
review. See United States v. Wilson, 118 F.3d 228, 234 (4th Cir.
1997).
B.
We review de novo the district court's legal conclusions. See
United States v. Lipford, 203 F.3d 259, 270 (4th Cir. 2000).
Koonge
contends that the trial court erred in refusing to dismiss the
reckless
driving charge, as Va. Code S 19.2-294.1 instructs Virginia
courts to
do when a defendant is also charged with DUI. Koonge argues that,
contrary to the trial court's finding, this provision is
substantive in
nature and therefore is assimilated into the federal law that
governs
his conviction. See United States v. King, 824 F.2d 313, 315 (4th
Cir.
1987) (stating that the Assimilative Crimes Act of 1942, 18
U.S.C.
S 13, (the "ACA") assimilates the entire substantive criminal law
of
the state); Kay v. United States, 255 F.2d 476, 478 (4th Cir.
1958)
(holding that the ACA assimilates entire substantive law but does
not
generally adopt state procedural rules). We reject the
contention,
however, that at issue here is whether the Virginia state law
prohibi-
tion on dual convictions for DUI and reckless driving is a
substantive
or a procedural rule.
We find persuasive the government's position that the ACA is
irrelevant in this case. We find Koonge's reliance on Virginia
law to
be inapposite, since he was convicted under federal regulations.
See
United States v. Eubanks, 435 F.2d 1261, 1262 (4th Cir. 1971)
(per
curiam). Because Koonge was charged pursuant to the Secretary of
the Interior's regulations governing vehicles and traffic safety
in
parks, forests, and public property under the purview of the
Depart-
ment of the Interior, the ACA simply was not invoked in charging
Koonge with reckless driving. Specifically, Koonge's DUI charge
arose under federal law, i.e., 36 C.F.R. S 4.23(a)(1), the
federal DUI
offense. Koonge's reckless driving offense, charged pursuant to
36
C.F.R. S 4.2, is likewise a federal offense, although it relies
on the
reckless driving provision of the Va. Code for its elements. Even
if
5
we were to find that this reckless driving provision brought
along
with it the prohibition on dual convictions for DUI and reckless
driv-
ing under Virginia law, that finding would not alter the outcome
in
this case. Here, the DUI conviction is for a purely federal
offense, and
therefore the prohibition on dual convictions under Virginia
state law
is not triggered.
AFFIRMED
6UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 99-4684
DAVID ALAN HARVEY,
Defendant-Appellant.
Appeal from the United States District Court
for the Middle District of North Carolina, at Durham.
Frank W. Bullock, Jr., District Judge.
(CR-99-7)
Submitted: May 10, 2000
Decided: May 19, 2000
Before LUTTIG and WILLIAMS, Circuit Judges,
and HAMILTON, Senior Circuit Judge.
_________________________________________________________________
Dismissed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
M. Gordon Widenhouse, Jr., Chapel Hill, North Carolina, for
Appel-
lant. Walter C. Holton, Jr., United States Attorney, L. Patrick
Auld,
Assistant United States Attorney, Greensboro, North Carolina, for
Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit.
See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
David Alan Harvey appeals the sixty-three-month sentence
imposed by the district court after he pled guilty to armed bank
rob-
bery, 18 U.S.C.A. S 2113(d) (West Supp. 2000), and attempted
armed
robbery, 18 U.S.C.A. S 2113(c) (West Supp. 2000). Harvey contends
that the district court failed to recognize its authority to
depart down-
ward for diminished capacity, aberrant behavior, post-offense
rehabil-
itation, and substantial restitution. We dismiss the appeal for
lack of
jurisdiction.
In 1996, Harvey's doctor prescribed Demerol and Seconal for fre-
quent migraine headaches. By 1998, Harvey was addicted to these
medications, and was obtaining large quantities of them from two
doctors and emergency room visits. On December 24, 1998, Harvey
robbed a pharmacy with a BB gun, taking Demerol and Seconal.* On
December 26, 1998, he robbed a Phar-Mor pharmacy of Demerol and
Seconal. On December 31, 1998, Harvey was fired from his job as
sales manager at a car dealership because he was under the
influence
of medication and unable to perform his duties. The same day, he
robbed a bank of $169,700. Harvey was arrested a few days later.
All
but $20,150 of the money stolen from the bank was recovered. By
the
date of sentencing, Harvey had repaid the loss to Phar-Mor and
$15,000 to the bank, but still owed the bank $5000.
Harvey requested a departure based on aberrant conduct, dimin-
ished capacity, post-offense rehabilitation, and substantial
restitution,
as well as his "extraordinary cooperation with authorities and
accep-
tance of responsibility . . . his education, vocational skills,
work his-
tory, and family responsibilities, and the unlikelihood this
conduct
would ever recur."
_________________________________________________________________
*This conduct was not charged or treated as relevant conduct.
2
At the sentencing hearing, the district court initially observed
that
it did not believe that it had discretion to depart downward on
the
grounds urged by Harvey because the facts did not warrant a
depar-
ture. The court expressed sympathy for Harvey, and stated that if
it
had discretion to depart, it might do so. However, after hearing
argu-
ment, the district court stated:
I don't believe, as a legal and factual matter under the
facts
of this case, that the arguments you have made give the
Court a legal basis to depart below the guideline. That is,
I
recognize that under certain circumstances you can depart
for each of these three grounds.
I don't find any support for finding that the acts in this
case
-- that is, the bank robbery, the robbery of the pharmacy,
and possibly the other pharmacy robbery, or attempted rob-
bery, for that matter -- are such that you would be
entitled
to depart [sic] for an aberrant act, for diminished
capacity,
or for the extraordinary acceptance of responsibility after
these acts had been committed. That is, individually and in
combination, I still don't find that these facts would
allow
the Court to have the discretion to do that as a matter of
fact
and as a matter of law.
So I am not refusing to exercise my discretion in this
matter.
I am simply finding that under the facts and circumstances
of the case, the facts and the law do not permit a
departure.
The appeals court "lacks authority to review a decision of the
dis-
trict court not to depart from the applicable guideline range
when that
decision rests upon a determination that a departure is not
warranted."
United States v. Brock, 108 F.3d 31, 33 (4th Cir. 1997) (citing
United
States v. Bayerle, 898 F.2d 28, 30-31 (4th Cir. 1990)). However,
if the
court decides not to depart because it believes it lacks legal
authority
to depart, the court of appeals may review that decision. See
Brock,
108 F.3d at 33. The Supreme Court has explained that any factor
that
is not forbidden as a possible ground for departure under the
guide-
lines may permit a departure, if "the factor, as occurring in the
partic-
ular circumstances, takes the case outside the heartland of the
3
applicable Guideline." Koon v. United States , 518 U.S. 81, 109
(1996).
In Brock, this Court listed the forbidden factors:
[D]rug or alcohol dependence or abuse (U.S.S.G. S 5h1.4,
p.s.); race, sex, national origin, creed, religion, or
socioeco-
nomic status (U.S.S.G. S 5H1.10, p.s.); lack of youthful
guidance or similar circumstances indicating a disadvan-
taged upbringing (U.S.S.G. S 5H1.12, p.s.).
108 F.3d at 33.
In this case, the district court correctly decided that Harvey's
drug
addiction was not a permissible ground for departure. In light of
Koon
and Brock, the court could not have been in doubt about its
authority
to depart on the non-forbidden grounds put forward by Harvey, if
the
factor was present to an exceptional degree or otherwise made the
case an atypical one. See Brock, 108 F.3d at 35. The court
determined
that the facts did not justify a departure and decided not to
depart.
When the district court finds factors that might, if the facts
were dif-
ferent, support a departure, but do not support a departure in
the case
under consideration, the appeals court lacks authority to review
the
decision. See United States v. DeBeir, 186 F.3d 561, 573 (4th
Cir.
1999).
We therefore dismiss the appeal for lack of jurisdiction. We dis-
pense with oral argument because the facts and legal contentions
are
adequately presented in the materials before the court and
argument
would not aid the decisional process.
DISMISSED
4UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
In Re: THEODORE MATTHEWS, JR. and
ALEXIS DIANNE MATTHEWS,
Debtors.
THEODORE MATTHEWS, JR.; ALEXIS
DIANNE MATTHEWS,
Plaintiffs-Appellants, No.
99-1874
v.
GERMANTOWN INJURY CARE CENTER,
INCORPORATED; PARAGON
MANAGEMENT SYSTEMS,
INCORPORATED,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Andre M. Davis, District Judge.
(CA-99-1360-AMD, BK-97-1-5344-DK,
AP-98-1-A482-DK)
Argued: April 3, 2000
Decided: May 19, 2000
Before MICHAEL and TRAXLER, Circuit Judges, and
Roger J. MINER, Senior Circuit Judge of the
United States Court of Appeals for the Second Circuit,
sitting by designation.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
COUNSEL
ARGUED: Murray Leonard Deutchman, Rockville, Maryland, for
Appellants. Peter Thomas McDowell, Timonium, Maryland, for
Appellees. ON BRIEF: Edward L. Blanton, Jr., Towson, Maryland,
for Appellees.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit.
See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
This case presents an appeal from an order of the United States
District Court for the District of Maryland (Davis, J.) adopting
the
recommendation of the United States Bankruptcy Court to dismiss,
on
res judicata grounds, the plaintiffs-appellants' damages claims
under
11 U.S.C. S 362 and Maryland common law claims for abuse of pro-
cess, false imprisonment, and malicious prosecution. The
plaintiffs-
appellants also appeal from so much of the district court's order
as
dismissed their joint claim for loss of consortium. Finding no
error,
we affirm.
In 1994, plaintiff-appellant Alexis Matthews ("Alexis") sustained
serious injuries for which she obtained medical treatment. Among
her
medical care providers was the defendant-appellee Germantown
Injury Care Center, Inc. ("Germantown"). Subsequently, Alexis was
unable to timely pay her medical and other bills and the Matthews
(Alexis and Theodore, her husband) filed a joint petition for
bank-
ruptcy under Chapter 7. On June 1, 1997, the bankruptcy court
issued
a Notice of Commencement of Case, which contained instructions
that creditors should not take any action against the debtors
without
first seeking the permission of the bankruptcy court.
Nevertheless, on
July 7, 1997, Germantown requested the issuance of a body attach-
ment for Alexis so she would appear in court in aid of
Germantown's
2
efforts to collect on the past due debt. The Clerk of the
District Court
of Maryland caused a bench warrant to issue, the body attachment
was executed, and Alexis was taken into custody, handcuffed, and
incarcerated. She was also handcuffed and she was later brought
to
court, where she was released on bond pending resolution of the
bankruptcy.
Alexis applied to the bankruptcy court for the entry of an order
holding Germantown in contempt for causing the body attachment to
issue in violation of the bankruptcy court stay. In her
application,
Alexis specifically asserted that Germantown's actions were taken
"notwithstanding the provisions of the United States Bankruptcy
Code Section 362."* She requested (1) a declaratory judgment that
Germantown had violated the bankruptcy laws; (2) damages in the
form of attorneys' fees and costs; (3) a permanent injunction
against
further efforts to collect the debt without court permission; and
(4)
whatever further relief would be proper. With her application,
Alexis
submitted a proposed order to show cause to the bankruptcy court.
On
January 26, 1998, the bankruptcy court signed the proposed order,
issuing a "Show Cause Order For Contempt and Damages Pursuant
to 11 U.S.C. Section 362(h)." After the signed order had been
entered,
copies were sent to Alexis' attorney. Section 362(h) provides
that
"[a]n individual injured by any willful violation of a stay
provided by
this section shall recover actual damages, including costs and
attor-
neys' fees, and, in appropriate circumstances, may recover
punitive
damages."
On February 13, 1998, the Matthews filed a complaint against Ger-
mantown in the United States District