Please ensure Javascript is enabled for purposes of website accessibility

Opinions – U.S. 4th Circuit Court of Appeals: 11/07/11

Contracts

Time limits on claim for damaged cargo

BOTTOM LINE: Where a broker and carrier negotiated a bargain within the boundaries of federal act allowing shippers and carriers to bargain over the time available to bring a claim, a time limitation in a contract between a shipper and carrier requiring that any claim for damage to cargo be filed within nine months of delivery and that any lawsuit for cargo damage be filed within two years of the written denial of a claim would be given effect, and an action brought after the expiration of the agreed-upon time period was therefore time-barred.

CASE: 5K Logistics, Incorporated v. Daily Express, Incorporated, No. 10-1907 (decided Oct. 21, 2011) (Judges Wilkinson, NIEMEYER & Floyd). RecordFax No. 11-1021-61, 11 pages.

COUNSEL: Robert Rothstein, Franklin & Prokopik PC, Herndon, VA, for Appellant. Mark Coberly, Vandeventer Black, LLP, Norfolk, VA, for Appellee.

FACTS: Dominion Resources Services, Inc. (“DRS”) contracted with 5K Logistics, Inc., for the transportation of two “tube bundles” from a warehouse in Chambersburg, Pa., to DRS’ facility in Lusby, Md.  5K was not a carrier of goods but rather a broker of transportation services that subcontracted with Daily Express, Inc. (“DXI”) for the actual carriage of the cargo. On Aug. 24, 2006, the two tube bundles were loaded onto two DXI trucks at the warehouse, and two separate short-form bills of lading were issued. The relevant bill of lading identified DXI as the carrier and “Dominion Power” as the shipper, and further declared DXI’s receipt of the cargo from “Dominion Power c/o 5K Logistics.” The bill of lading also incorporated the terms and conditions set forth in DXI’s published tariff. That tariff required that any claim for damage to cargo be filed within nine months of delivery and that any lawsuit for cargo damage be filed within two years of the written denial of a claim.

While en route, one of the tube bundles fell onto the highway and was damaged. As a result, DRS refused to accept delivery of the bundle in Lusby. On Nov. 14, 2006, 5K notified DXI that DRS was claiming $192,072 from 5K for damage to the tube bundle, and that, in the event 5K was required to compensate DRS, 5K would seek to recover from DXI. DXI responded on Nov. 27, 2006, indicating that it had completed its investigation and that any claims would be denied. On May 14, 2009, approximately two years and nine months after the accident, DRS brought an action against 5K in the Eastern District of Virginia. Four months later, on Sept. 11, 2009, three years and one month after the accident, 5K filed its Answer and its Third–Party Complaint against DXI.

On Feb. 26, 2010, the district court granted DRS’ motion for summary judgment, finding that 5K was liable for breaching the Master Service Agreement between 5K and DRS, awarding damages of $192,072 and fees and costs of $135,973. In the third-party action between 5K and DXI, the district court granted summary judgment to DXI on 5K’s breach of contract claim and also held that 5K’s state law indemnity and contribution claims were preempted by the federal Carmack Amendment. Following a bench trial, the district court concluded that 5K’s claims were not time-barred, and that 5K was entitled to recovery from DXI, both of the $192,072 that 5K paid to DRS and of the costs incurred by 5K in defending the suit brought by DRS.

DXI appealed to the 4th Circuit, which reversed and remanded with instructions to dismiss the action.

LAW: Initially enacted in 1906 as an amendment to the Interstate Commerce Act of 1887, the Carmack Amendment creates “a national scheme of carrier liability for goods damaged or lost during interstate shipment under a valid bill of lading.” Shao v. Link Cargo (Taiwan) Ltd., 986 F.2d 700, 704 (4th Cir.1993). The Carmack Amendment is a comprehensive exercise of Congress’ power to regulate interstate commerce and has long been interpreted to preempt state liability rules pertaining to cargo carriage, either under statute or common law. Adams Express Co. v. Croninger, 226 U.S. 491, 505–06 (1913). In creating this uniform nationwide scheme of statutory remedies, Congress legislated with remarkable care, striking a precise balance between the rights of shippers and carriers.

In this case, it was undisputed that DXI’s tariff contained the statutorily permissible, contractually negotiable minimum time limitation for a cargo damage claim: nine months to file a claim and two years from denial of that claim to bring suit, and none of the parties challenged the district court’s determination that no claim was filed, much less one within the specified window. 5K had means, both in contract negotiation and in legal action, to protect itself, yet it availed itself of none of them.

As such, it was appropriate and proper to give effect to the contract the parties actually made, not the one that 5K arguably should have sought. Under the clear terms of the contract, 5K’s claim was therefore time-barred.

Accordingly, the decision of the district court was reversed and the case remanded with directions to dismiss the action.

Criminal Procedure

Sentencing guidelines

BOTTOM LINE: The absence of a scienter requirement for a sentencing enhancement in sentencing guidelines for unlawful possession of a firearm did not operate to invalidate the enhancement, and defendant’s 96-month sentence for being a felon in possession of a firearm was substantively reasonable, as the offense involved dangerous conduct, defendant’s previous encounters with the law proved to have little or no deterrent effect, and the supposed mitigating circumstances were neither supported nor verified.

CASE: United States v. Taylor, Nos. 09-5152, 10-4054 (filed Oct. 24, 2011) (Judges WILKINSON, Motz & Davis). RecordFax No. 11-1024-60, 25 pages.

COUNSEL: Joanna Silver, Office of the Federal Public Defender, Baltimore, MD; Jonathan Gladstone, Annapolis, for Appellants. Cheryl Crumpton, Office of the United States Attorney, Baltimore, for Appellee.

FACTS: On May 30, 2008, several Baltimore police officers on patrol in a police van saw Daryl Taylor standing on the street near an Acura automobile. Antwan Thompson was sitting inside the vehicle. One of the officers, Detective Jermaine Cook, saw Taylor reach into his waistband, pull out a silver handgun, and pass it to Antwan Thompson through the Acura’s passenger side window. Cook instantly alerted the other three detectives in the van. The police officers exited the van, and Cook placed Taylor under arrest. Thompson, on the other hand, fled from the Acura and was pursued by two of the other detectives. During the chase, one of the officers saw a silver handgun fall out of Thompson’s shorts. The detective recovered the loaded weapon, which had been reported. Thompson was apprehended soon thereafter.

A jury subsequently convicted both Taylor and Thompson of violating 18 U.S.C. §922(g)(1), which prohibits convicted felons from possessing a firearm. Because the handgun was stolen, Taylor’s Pre-Sentence Report (“PSR”) recommended a two-point offense level increase under U.S.S.G. §2K2.1(b)(4)(A). When added to Taylor’s base offense level of 24 points and his Criminal History Category of IV, this enhancement resulted in a Guidelines range of 92 to 115 months. At his sentencing hearing, however, Taylor argued for a lesser punishment. Specifically, he objected to the two-point enhancement because he was unaware that the handgun was stolen, and on the basis of a number of allegedly mitigating circumstances. The district court rejected Taylor’s contentions and imposed a 96-month sentence.

In Thompson’s case, the PSR recommended a 15-year minimum sentence under the ACCA because Thompson had previously been convicted twice for controlled substance offenses and once for second-degree assault. Under the ACCA, anyone who violates 18 U.S.C. §922(g) and has three prior convictions for violent felonies or serious drug offenses must serve a sentence of at least 15 years. To avoid this mandatory minimum, Thompson argued that his Maryland second-degree assault conviction was not a “violent felony.”

In support of this sentence, the government submitted a transcript of Thompson’s plea colloquy for his assault conviction. After reviewing this document, the federal district court held that the transcript clearly showed a physical assault involving the use of force or violence against a police officer, and the court consequently rejected Thompson’s challenge to his ACCA status and sentenced him to the mandatory minimum of 15 years’ imprisonment.

Taylor and Thompson appealed their convictions and sentences to the 4th Circuit, which affirmed.

LAW: With regard to Daryl Taylor’s conviction, Taylor claimed that the jury lacked sufficient evidence to convict him of violating 18 U.S.C. §922(g)(1). Specifically, Taylor contend

ed that there was not enough evidence presented at trial to prove that he actually possessed the stolen handgun.

As an initial matter, any sufficiency claim bears a heavy burden. A court cannot set aside a jury’s verdict if it is supported by substantial evidence when viewed in the light most favorable to the government. See United States v. Robinson, 627 F.3d 941, 956 (4th Cir.2010). Thus, on Taylor’s appeal, the reviewing court was not entitled to assess witness credibility and instead assumed that the jury resolved any conflicting evidence in the prosecution’s favor. United States v. Jeffers, 570 F.3d 557, 565 (4th Cir.2009). At trial, Taylor challenged Cook’s testimony on grounds strikingly similar to those he now pressed on appeal, but the jury ultimately rejected Taylor’s arguments in favor of Cook’s testimony.

Moreover, there was ample evidence here to establish Taylor’s possession of the firearm. According to the testimony, multiple detectives saw Taylor standing near the passenger side of the Acura in a well-lit area. While the other officers were looking in another direction, Detective Cook observed Taylor pass a silver handgun to Thompson through the Acura’s window. The other detectives confirmed that Cook immediately alerted them to the handoff. As soon as the officers exited the van, Thompson fled from the Acura and then dropped a silver handgun during his unsuccessful attempt to escape. This evidence would plainly allow a reasonable jury to find Taylor guilty of unlawful possession under 18 U.S.C. §922(g)(1).

Apart from his challenge to his conviction, Taylor raised two objections to the length of his sentence. He first contested the district court’s application of the Guidelines’ two-point enhancement for possession of a stolen firearm. Section 2K2.1(b)(4)(A) of the Guidelines instructs courts to increase a defendant’s offense level by two points if the firearm involved in a section 922(g) offense was stolen. This enhancement applies “regardless of whether the defendant knew or had reason to believe that the firearm was stolen.” U.S.S.G. §2K2.1 cmt. n.8(B). Taylor asked that the Court invalidate this guideline on the grounds that its lack of a mens rea requirement rendered it inconsistent with federal law.

However, invalidation of the guideline on such grounds would be unwarranted. First, the stolen firearm enhancement serves an important purpose. The Sentencing Commission promulgated this guideline on the premise that stolen firearms are used disproportionately in the commission of crime. United States v. Mobley, 956 F.2d 450, 454 (3d Cir.1992). In light of the fact that stolen firearms change hands both freely and frequently, it would be unreasonable to discredit the Commission’s judgment that a felon in possession of a stolen firearm should be treated differently from one who possessed a gun through lawful means. See United States v. Ellsworth, 456 F.3d 1146, 1150 (9th Cir.2006).

Moreover, it was not fatal that the enhancement lacks a mens rea component. While a preference for mens rea is deeply rooted in jurisprudence, the absence of this element is not invariably the final word in criminal law. See Staples v. United States, 511 U.S. 600, 605 (1994). Instead, as the Supreme Court has observed, it is not unusual to punish individuals for the unintended consequences of their unlawful acts. Dean v. United States, 556 U.S. 568 (2009). The felony-murder rule, under which a defendant can be convicted for murder if he commits an unintentional homicide during the course of another felony, is perhaps the most obvious illustration of the point. Id. The idea behind this principle is a simple one: those wishing to avoid the penalty for the unintended consequences of their crime should avoid committing the crime in the first place. See id. at 1856. Clearly, had Taylor chosen not to unlawfully possess the handgun to begin with, he would never have been punished for the possession or spread of stolen firearms.

For this reason, it is unsurprising that every circuit to have considered a challenge to the sentencing enhancement in section 2K2.1(b)(4)(A) has upheld the guideline. See United States v. Thomas, 628 F.3d 64, 68-71 (2d Cir.2010). As noted by the Third Circuit, stolen firearms in the hands of people recognized as irresponsible pose great dangers, and the guideline here reflects this heightened danger. Mobley, 956 F.2d at 454. Thus, in sum, the absence of a scienter requirement did not operate to invalidate the enhancement in section 2K2.1(b)(4)(A) of the Sentencing Guidelines.

Taylor also claimed that his 96-month sentence was substantively unreasonable due to mitigating factors and the comparatively innocuous nature of his conduct. However, under the facts of the case, the district court’s sentence fell well within the range of reasonable punishments, as Taylor’s instant offense involved dangerous conduct, Taylor’s previous encounters with the law proved to have little or no deterrent effect, and the supposed mitigating circumstances were neither supported nor verified.

Accordingly, the 96-month sentence recommended by the district court was affirmed.

COMMENTARY: Antwan Thompson challenged his sentence under the ACCA, which imposes a 15-year minimum sentence on anyone who both violates 18 U.S.C. §922(g) and has three prior convictions for serious drug offenses or violent felonies. 18 U.S.C. §924(e)(1). On appeal, Thompson contended that the district court erred in concluding that his third predicate conviction for Maryland second-degree assault constituted a “violent felony.”

Here, the district court found that Thompson’s assault conviction qualified under the “force clause” of the ACCA, which defines a “violent felony” as an offense which has as an element the use, attempted use, or threatened use of physical force against the person of another. §924(e)(2)(B)(i). In its analysis, the district court correctly employed the modified categorical approach set forth in Shepard v. United States to guide its analysis. Shepard v. United States, 544 U.S. 13 (2005). Under this approach, courts must decide whether Shepard-approved materials such as the charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented showed that Thompson “necessarily admitted” to committing a violent felony. See Shepard, 544 U.S. at 16.

In this case, the trial court considered only Shepard-approved documents (namely, the transcript of Thompson’s plea colloquy) in reaching its conclusion. That transcript portrayed what can only be described as a “violent felony.” The transcript indicated that Thompson, facing arrest for a drug deal, struck a police officer in the chest area with a cup of liquid, punched another officer in the mouth, and attempted to escape, and three police officers then had to wrestle him to the ground, evan as Thompson continued to reach for his handgun. The fact that it took more than three police officers to finally subdue Thompson demonstrates the violent nature of his assaultive conduct. As such, the district court did not err in concluding that the Shepard-approved materials here demonstrated Thompson’s involvement in a violent felony.

To avoid these facts, Thompson argued that he never actually admitted them during his plea colloquy, relying on the decision in United States v. Alston. In that case, the court found that a conviction for second-degree assault under Maryland law cannot serve as an ACCA predicate when it is the result of an Alford plea. United States v. Alston, 611 F.3d 219, 220-21 (4th Cir.2010). Here, Thompson contended that his conviction stemmed from an Alford plea because he did not personally and explicitly assent to the prosecution’s statement of the facts.

An Alford plea is an arrangement in which a defendant maintains his innocence but pleads guilty for reasons of self-interest. See North Carolina v. Alford, 400 U.S. 25, 37 (1970). Its “distinguishing feature” is that the defendant does not confirm the factual basis underlying his plea. Alston, 611 F.3d at 227. In short, an Alford plea is an intentional, specific action which serves a distinct function in the law, namely that of ensuring that a defendant’s “protestations of innocence” do not undermine confidence that the constitutional requirement that a plea of guilty be voluntary and intelligent has been satisfied. See id. at 33, 37-39, 91 S.Ct. 160.

However, Thompson’s plea was not an Alford plea. After Thompson was informed of his rights, Thompson’s attorney asked him whether it was still his intention to plead guilty, and Thompson replied, “Yes, ma’am.” Following the prosecution’s statement of facts, the judge then asked Thompson’s counsel if she had any additions or corrections to make to the record, and she responded that she did not. Thompson’s attorney then asked Thompson whether there was anything else he would like to add, and Thompson replied, “No, ma’am.” Thus, there was no evidence in the entire transcript that Thompson intended to do anything other than plead guilty that day. Although the colloquy was replete with opportunities for him to challenge his factual guilt, Thompson never protested that he was innocent, attempted to correct the statement of the facts, or even remotely signaled that he was interested in an Alford plea.

For this reason, the judgment of the district court was affirmed.