4th Circuit: Ineffective assistance of counsel; compassionate release; tort

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Criminal; ineffective assistance of counsel

BOTTOM LINE: Where the defendant argued he received ineffective assistance of counsel during his plea hearing, because his counsel did not object to a firearm enhancement applied by the district court, but the enhancement was likely proper, the ineffective assistance claim was rejected.

CASE: United States v. Richardson, Case No. 23-4471 (filed July 28, 2025) (Judges Wynn, Thacker, FLOYD).

FACTS: In 2023, pursuant to a written plea agreement, Tovis Ation Richardson pled guilty to two counts: (1) conspiracy to distribute and possess with intent to distribute methamphetamine and (2) possession with intent to distribute methamphetamine. He later received a 240-month sentence.

LAW: Richardson first argues the district court erred in applying a sentencing enhancement for firearm possession. But Richardson’s plea agreement contains an appeal waiver: “The Defendant agrees: . .  . To waive knowingly and expressly the right to appeal the conviction and whatever sentence is imposed on any ground . . . excepting an appeal or motion based upon grounds of ineffective assistance of counsel or prosecutorial misconduct not known to the Defendant at the time of [his] guilty plea.”

When, as here, “the government seeks to enforce an appeal waiver and has not breached the plea agreement, we will enforce the waiver if it is valid and if the issue being appealed falls within its scope.” Here, Richardson does not contest that his waiver was knowing and intelligent. This court’s review of the record supports this concession. His waiver is therefore valid.

The first issue that Richardson raises is the application of the firearm enhancement. Richardson’s waiver clearly and unambiguously applies to this issue. His waiver explicitly forecloses appeals “on any ground,” including appeals “pursuant to 18 U.S.C § 3742.” Section 3742(a)(2) would otherwise permit an appeal based on “an incorrect application of the sentencing guidelines.”

Richardson pivots to arguing that the “failure to correct [the firearm enhancement] would result in a miscarriage of justice.” Richardson is correct that this court “will refuse to enforce an otherwise valid waiver if to do so would result in a miscarriage of justice.” But Richardson’s alleged “miscarriage of justice” is merely a re-packaged Guidelines claim that aims to re-bargain the terms of his waiver. Therefore, even assuming his eligibility for a sentencing reduction under § 4C1.1, the court’s “failure to correct” this issue would not result in a miscarriage of justice.

The second issue that Richardson raises is ineffective assistance—specifically, his counsel’s failure to object to the firearm enhancement. His waiver does not cover this issue. To establish ineffective assistance, “the defendant must show that counsel’s performance was deficient” and “that the deficient performance prejudiced the defense.” When, as here, the claim is made on direct appeal, it must “conclusively appear[] in the trial record itself that the defendant was not provided . . . effective representation.”

Here, counsel was not “unequivocally wrong on the law.” More aptly, there is no “relevant authority strongly suggesting that [the] enhancement is not proper.” In fact, this court’s case law investigation revealed the opposite. Therefore, Richardson’s counsel could have reasonably concluded that his objection would fail. And reasonable decisions of counsel are not constitutionally deficient decisions.

If this court were to find the opposite here, and thereby hold that counsel is constitutionally deficient when he does not raise what is likely a losing objection, it risks setting a dangerously low bar for reasonable performance, especially on direct appeal. Because Richardson’s ineffective assistance claim fails to meet the first prong (deficient performance), this court need not examine the second (prejudice).

Affirmed.

Criminal; Section 922(g)(4)

BOTTOM LINE: Where the defendant argued that the Second Amendment renders 18 U.S.C. § 922(g)(4), which imposes a lifetime ban on those who have been involuntarily committed to a mental institution from purchasing or possessing a firearm, facially unconstitutional, this challenge failed.

CASE: United States v. Gould, Case No. 24-4192 (filed July 29, 2025) (Judges DIAZ, Heytens, Benjamin).

FACTS: James Gould pleaded guilty to violating 18 U.S.C. § 922(g)(4) by possessing a firearm after having previously been involuntarily committed to a mental institution. He appeals, claiming that the Second Amendment renders the statute facially unconstitutional.

LAW: The analysis from New York State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022), proceeds in two steps. First, “[w]hen the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct.” If it does, the second step requires “[t]he government [to] justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation.”

Section 922(g)(4) bars an individual who is otherwise law-abiding from possessing a weapon in common use for a common purpose. The conduct the statute prohibits is therefore covered by the Second Amendment’s plain text and thus is presumptively protected. So this court considers whether the disarmament authorized by § 922(g)(4) is “relevantly similar to laws that our tradition is understood to permit.”

It finds that support in two related historical traditions: the actions of legislatures and communities that incapacitated those suffering from mental illness when the afflicted posed a danger to themselves or others, and the accepted power of legislatures to disarm groups of people considered dangerous.

The history points to two conclusions. First, at the time of the founding, and indeed for long before, governments routinely incapacitated those suffering from severe mental illness. Second, the reason for such action was that the individual was considered a threat to their community.

The history also shows that legislatures had the authority, consistent with the understanding of the individual right to keep and bear arms, to disarm categories of people based on a belief that the class posed a threat of dangerousness. And when combined with the historical treatment of those who suffered from mental illness, the court perceives an unambiguous history and tradition of disarming and incarcerating those whose illness made them a danger to themselves or others.

At bottom, the question is whether § 922(g)(4) is “‘relevantly similar’ to laws our tradition is understood to permit.” So the court focuses on “situations in which [§ 922(g)(4) is] most likely to be constitutional.” At least in West Virginia, where Gould lives, it finds such situations. Accordingly, disarmament under § 922(g)(4) is facially constitutional because situations exist where it may be applied consistent with the Second Amendment.

Affirmed.

Criminal; compassionate release

BOTTOM LINE: Where the defendant argued that the district court did not adequately explain why it denied his motion for compassionate release, but the record showed otherwise, the district court’s order was affirmed.

CASE: United States v. Burleigh, Case No. 23-6254 (filed July 31, 2025) (Judges Niemeyer, QUATTLEBAUM) (Judge GREGORY dissents).

FACTS: Larry Antonio Burleigh argues that the district court abused its discretion in denying his motion for compassionate release by inadequately explaining its reasoning and by misapplying this court’s law.

LAW: Burleigh contends that the district court disregarded the distinction between § 924(c) sentences before and after the First Step Act, neglected the length of his sentence and never addressed why the disparity between his old and potentially new sentences should not be corrected.

The plain language of the district court’s order contradicts Burleigh’s argument. By its express terms, the district court considered, and simply did not find compelling, Burleigh’s argument that his pre-First Step Act sentence was lengthy and grossly disparate from the sentence he would receive if sentenced today.

Far from ignoring the distinction between § 924(c) sentences before and after the First Step Act and the length of Burleigh’s sentence, the district court addressed those issues head on. It considered the length of Burleigh’s sentence. It noted that the sentence for the § 924(c) counts was 420 months. The court also explicitly recognized that Burleigh’s sentence would be lower if he were sentenced today.

And it explained why it felt the sentence disparity in Burleigh’s case did not warrant compassionate release. From the district court’s standpoint, compassionate release was not appropriate in Burleigh’s case because of the seriousness of his crime, its impact on D.O. and his wife and Burleigh’s criminal history—namely that he committed the offense of conviction while “on supervised probation for other serious offenses.”

The “touchstone” is “whether the district court set forth enough to satisfy this court that it has considered the parties’ arguments and has a reasoned basis for exercising its own legal decisionmaking authority, so as to allow for meaningful appellate review.” Satisfying that touchstone is not difficult. A district court can consider an argument without setting forth its reasoning in detail on the record. And a district court need not address every single argument made by a defendant so long as this court is able to engage in meaningful appellate review considering what the district court chose to say.

Further, when a district court denies a motion and states its rationale, implicit within its explanation is the fact that arguments or factors it does not address or addresses only briefly were not persuasive to it. Thus, the district court did not abuse its discretion in deciding that Burleigh had not met his burden of showing extraordinary and compelling reasons to warrant a sentence reduction.

Burleigh and the dissent next argue that the district court failed to consider his sentence disparity, age and rehabilitation together. Even assuming the district court had to consider these arguments collectively, rather than simply finding each argument separately insufficient, it did so.

At the outset of its extraordinary and compelling reasons analysis, the district court said: “Defendant argues that “his exemplary and self-motivated rehabilitation,” his young age at the time of the offense, and the fact that “stacked” § 924(c) convictions make up a large portion of his sentence constitute extraordinary and compelling reasons when assessed altogether. . . . For the foregoing reasons, the Court finds that these circumstances do not constitute extraordinary and compelling reasons warranting a sentence reduction.”

What else could “when assessed altogether” mean other than the court recognized Burleigh was arguing that his rehabilitation, age and sentence disparity should be considered collectively? And after identifying that argument, what else could “these circumstances” mean other than it was rejecting their collective effect?

Burleigh finally argues that the district court improperly applied the § 3553(a) factors in “one cursory paragraph” that failed to address the disparity between his current sentence and what his sentence would be after the First Step Act as well as his extensive post-sentencing rehabilitation.

Like his other challenges, Burleigh’s § 3553(a) arguments are inaccurate. The district court wrote not one paragraph but nearly two pages about the § 3553(a) factors. And its discussion was not cursory. To the contrary, the court explained its reasoning and conclusion thoroughly. Likewise, Burleigh’s argument that the district court did not properly address his unwarranted sentence disparity in its § 3553(a) analysis similarly fails.

Affirmed.

DISSENT: The question before us is whether the district court abused its discretion in denying Burleigh’s motion for compassionate release. I would find that the district court abused its discretion in at least three ways. Thus, I respectfully dissent.

Sanctions; improper removal

BOTTOM LINE: Where the district court awarded attorney’s fees to the plaintiffs, after finding that defendants improperly removed a case to federal court, it did not err. But this court rejects the plaintiffs’ argument – and decisions from the Seventh Circuit – that  § 1447(c) automatically awards them their fees and costs for defending this appeal.

CASE: Black v. Mantei & Associates Ltd., Case No. 24-1439 (filed July 30, 2025) (Judges Thacker, RICHARDSON, Benjamin).

FACTS: Plaintiffs filed a class action against defendants in state court alleging violations of state securities laws. Thinking that the Securities Litigation Uniform Standards Act, or SLUSA, might preclude this case, defendants removed the case to federal court. In response, plaintiffs amended their complaint to eliminate all possibility that SLUSA would apply. The district court accordingly remanded the case, explaining in an opinion how the class action no longer fell within SLUSA and how no other basis for federal jurisdiction was present.

After three years of litigation in state court, defendants removed the case a second time, making the same arguments the district court had rejected in its prior opinion. Unsurprisingly, the district court remanded the case a second time, and required defendants to pay plaintiffs’ attorney’s fees.

LAW: “Absent unusual circumstances, courts may award attorney’s fees under § 1447(c) only where the removing party lacked an objectively reasonable basis for seeking removal.” But even when removal was improper, “fees should be denied” so long as the removal was “objectively reasonable.”

Defendants contend that Dr. McCann, plaintiffs’ expert witness, erred in labelling the Barclays notes as “not covered,” and that this error gave them two bases for re-removal. First, SLUSA, which they argue provides a right to have a federal court settle the dispute over whether the Barclays notes are covered. And second, 28 U.S.C. § 1441, the general removal statute, which they argue permits removal because the dispute over the Barclays notes presents a federal question within the jurisdiction of the federal courts. Both of these bases fail.

Defendants next contend that, even if their removal was wrong, that’s all it was. But defendants’ second removal was more than wrong. The district court explained in its first remand opinion that the case needed to return to state court because “the [amended complaint] eliminates the possibility the suit will ever implicate a covered security” and “no federal question remains.” The complaint remained the same but defendants removed again anyway, asserting the exact two removal rationales—SLUSA and federal question jurisdiction— that the district court rejected.

Defendants counter by saying that their second removal had an intervening event: McCann’s testimony, which raised the possibility that the state court would conclude that the Barclays notes were covered securities. But the district court’s first remand opinion answered this question too. It predicted that “a court might need to make later preclusion determinations on individual products” and presciently explained that such determinations would need to be made in state court because they would neither implicate SLUSA nor create a federal question. Accordingly this court finds no abuse of discretion in the district court’s fee award.

Plaintiffs claim that, having successfully defended the assessment of attorney’s fees below, § 1447(c) automatically awards them their fees and costs for defending this appeal. Their argument relies on a trio of Seventh Circuit decisions interpreting § 1447(c). But this court respectfully disagrees with the Seventh Circuit.

Section 1447(c) provides that “An order remanding the case may require payment of just costs and any actual expenses, including attorney fees, incurred as a result of the removal.” This court’s decision will not be an order remanding the case. Indeed, it is not even reviewing an order remanding the case. Instead, it is reviewing the decision to award fees in an order remanding the case. This court cannot discern in § 1447(c) any authority to award fees in such a posture.

Instead, an order remanding the case—and thus an award of fees under § 1447(c)— can only come from the district court, not the court of appeals. This comports with § 1447’s clear and exclusive textual emphasis on the district court. Even if the text of § 1447(c) were ambiguous—it’s not—this court would decline to broadly construe the statute as authorizing a fee award on appeal. And even if the text of § 1447(c) authorized fee awards on appeal—it doesn’t—a fee award would be discretionary at most.

Affirmed.

Taxation; interest offset

BOTTOM LINE: Where Bank of America argued that interest it owes for tax underpayments should be offset by interest owed to Merrill Lynch for tax overpayments, this argument failed. To be entitled to the offsets, both payments must have been made by “the same taxpayer.” Although Bank of America now owns Merrill Lynch, they were not the “same taxpayer” when they made the under- and overpayments at issue here.

CASE: Bank of America Corporation v. United States of America, Case No. 23-2319 (filed July 29, 2025) (Judges Agee, WYNN, Rushing).

FACTS: Under the Internal Revenue Code, the government charges corporations interest on tax underpayments at a higher rate than it pays on tax overpayments. But where a taxpayer has made both “equivalent underpayments and overpayments” during the same time period, the Code permits “interest netting,” eliminating any interest liability. This provision applies only when both payments are made “by the same taxpayer.”

Here, Bank of America merged with Merrill Lynch in 2013. It now seeks to recover interest on its pre-merger tax underpayments by netting them against pre-merger overpayments made by Merrill Lynch.

The district court granted the government’s motion for partial summary judgment. Because the Bank and Merrill Lynch were different companies before the merger, they were not the same taxpayer when the payments were made.

LAW: Section 6621(d)’s interest-netting provision applies when, “for any period, interest is payable . . . on equivalent underpayments and overpayments by the same taxpayer.” The Bank argues that “by” in this context means “with respect to” or “concerning.” Because “the overpayments and underpayments are the responsibility of Bank of America,” the Bank concludes that “all of the overpayments and underpayments at issue were ‘by the same taxpayer.’”

This court is not persuaded. The Bank’s reading of the statute avoids the most natural understanding of the word “by.” The Bank relies on the ninth definition of that word in a dictionary that lists definitions “in a numbered sequence in order of relative familiarity and importance, with the most current and important senses given first.” In contrast, “through the agency, means, instrumentality, or causation of” is that dictionary’s second definition of “by.”

And, put into the context of § 6621(d), the latter definition works much more smoothly: “equivalent underpayments and overpayments [through the agency, means, instrumentality, or causation of] the same taxpayer” reads easily, while “equivalent underpayments and overpayments [with respect to] the same taxpayer” or “[concerning] the same taxpayer” doesn’t make much sense. That’s because, in a taxation case, the central relationship between “underpayments and overpayments” and “taxpayer” is one of causation by the taxpayer: the taxpayer underpays or overpays.

In practice, the Bank’s view would rewrite the statutory text. The Bank essentially reads the statute to require the “same taxpayer” to be liable now for the interest payable on an underpayment and entitled now to interest allowable on an overpayment. But the statute “provides an identified point in time at which the taxpayer must be the same, i.e., when the overpayments and underpayments are made.”

The Bank correctly recognizes that it “seeks to net the interest on a pre-merger Bank of America underpayment against the interest on a pre-merger Merrill Lynch overpayment.” Underpayments and overpayments are made on specific dates prescribed by federal law—in this case, well before the Bank merged with Merrill Lynch in 2013.

The Bank notes that “[w]hether a taxpayer has an underpayment or overpayment for a particular tax year often is not known until after the taxpayer and the IRS finish making adjustments for that tax year, which can be many years later.” But those adjustments do not themselves mark the date of an under- or overpayment; they only recognize the existence of earlier under- or overpayments, which is why interest begins accruing at that earlier date.

Nonetheless, the Bank contends that § 6621(d) should be interpreted consistently with § 6402(a), the balance-netting provision, and that § 6402(a) permits balance netting in this case. Stated differently, the Bank argues that Congress enacted § 6621(d) “to ensure that a taxpayer that owes no tax will not have to pay interest.” Although this argument has intuitive appeal, the interest-netting and balance-netting provisions have materially different language and purposes and therefore should not be applied together in every case.

The statute’s text is clear, this court needn’t reach its legislative history. But, in any event, legislative history lends no support to the Bank’s position. Finally, the court disagrees with the Bank’s argument that Delaware “merger law . . . treat[s] the surviving company and the merged companies as the same company for federal tax purposes, including retrospectively.”

Affirmed.

Tort; Bivens

BOTTOM LINE: Where a woman sued members of a fugitive task force for injuries suffered when a canine bit her leg during execution of an arrest warrant, the district court erred when it found the suit was similar enough to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971).

CASE: Orellana v. Godec, Case No. 23-2224 (filed July 30, 2025) (Judges RICHARDSON, Rushing) (Judge GREGORY dissents).

FACTS: Evy Orellana suffered serious injuries when a tactical canine bit her leg as a fugitive task force executed an arrest warrant for her boyfriend. She brought an action against the officers under Bivens, claiming that they had violated her Fourth Amendment rights with an unreasonable search and seizure.

The officers moved to dismiss the claims, arguing that Bivens was unavailable in this situation. The district court denied the motion, reasoning that the case was similar enough to Bivens that its cause of action should apply. The officers now take an interlocutory appeal, arguing that the district court’s qualified-immunity and Bivens decisions were independent errors.

LAW: Under the collateral order doctrine, this court treats some non-final orders as though they are final enough to create appellate jurisdiction. Appeals from the denial of a qualified immunity defense fall within the collateral order doctrine. And appellate jurisdiction to review the officers’ qualified immunity also provides appellate jurisdiction to review whether Bivens creates the cause of action to which the officers assert that immunity. This court thus has jurisdiction over the Bivens question.

The cause of action first created in Bivens continues to cover three narrow domains. First, in Bivens itself, the Supreme Court created an implied cause of action under the Fourth Amendment to recover damages suffered as the result of a warrantless search and seizure. Second, Davis v. Passman extended Bivens to a congressional staffer fired because of her sex in violation of the Fifth Amendment. Last, Carlson v. Green extended Bivens to allow a federal prisoner’s estate to bring an Eighth Amendment claim for deficient care.

“For the past 45 years, [the Supreme] Court has consistently declined to extend Bivens to new contexts.” In the meantime, it “has made clear” to the inferior courts “that expanding the Bivens remedy to a new context is an ‘extraordinary act’ that will be unavailable ‘in most every case.’”

Under this precedent, the court conducts “a highly restrictive two-step analysis” to decide whether a Bivens cause of action exists. At step one, it asks whether the case “arises in a ‘new context’ or involves a ‘new category of defendants.’” But if the case differs from the Bivens trio in any of these respects, the court proceeds to a second step, and asks whether any special factors counsel against extending Bivens.

Unlike Bivens, this case involves a different statutory scheme: U.S. Marshals working in a fugitive task force including federal, state and local agents. And the task force acted under the authority of a warrant. So allowing a Bivens remedy here would expand it into a new context.

And although not every new defendant will make for a new context, this case involves a different “statutory or other legal mandate under which the officer was operating.” Here, the Service operated under its congressional mandate to coordinate federal, state and local law enforcement agencies chosen by the Attorney General to form joint fugitive task forces for the purpose of “locating and apprehending fugitives.”

These joint task forces gives two more reasons to pause. First, they operate under narrow, specialized mandates. Second, these task forces raise federalism concerns that ordinary federal law-enforcement does not. This court joins other circuits in holding that these joint task forces are new Bivens contexts.

Another reason to treat this case as a new Bivens context is that the officers acted under a warrant. Under this court’s precedents, that warrant means Orellana’s case involves a different right—and different policy implications—than Bivens. The district court thus erred when it determined that this case fell within the original Bivens cause of action.

Turning to step two, extending Bivens could interfere with the relationship between the Marshals Service and its state and local partners by exposing individual officers to potential loss. This risk of liability may also affect the way officers do their jobs.

Reversed.

DISSENT: The “distinctions” highlighted by the majority are insufficient to overcome the factors that heavily weigh in favor of finding there is no meaningful difference between the context of Bivens and that of this case. As such, Orellana should be permitted to move forward with her Bivens claim. Therefore, I dissent.