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UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 99-4350

KENNY KOONGE,

Defendant-Appellant.

Appeal from the United States District Court

for the Eastern District of Virginia, at Alexandria.

Albert V. Bryan, Jr., Senior District Judge.

(CR-99-129)

Argued: April 4, 2000

Decided: May 19, 2000

Before WILKINSON, Chief Judge, TRAXLER, Circuit Judge,

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Affirmed by unpublished per curiam opinion.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: Dale Warren Dover, Alexandria, Virginia, for Appellant.

Rita Marie Glavin, Special Assistant United States Attorney,

UNITED STATES ATTORNEY'S OFFICE, Alexandria, Virginia,

for Appellee. ON BRIEF: Helen F. Fahey, United States Attorney,

UNITED STATES ATTORNEY'S OFFICE, Alexandria, Virginia,

for Appellee.
Unpublished opinions are not binding precedent in this circuit.

See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Kenny Koonge appeals from an order of the district court

affirming

his conviction after a bench trial before a United States

Magistrate

Judge. Koonge was convicted of 1) driving under the influence of

alcohol ("DUI") in violation of 36 C.F.R.S 4.23(a)(1); 2)

reckless

driving in violation of 36 C.F.R. S 4.2, incorporating Va. Code

S 46.2-852; and 3) crossing the median in violation of 36 C.F.R.

S 4.10(a). The judge imposed a sentence of 18 months' probation

with

special conditions, fines of $950 and a special assessment of

$30. We

affirm.

I.

On November 21, 1998, at approximately 8:00 a.m., the vehicle

that Koonge was driving crossed the median of the George Washington Parkway in northern Virginia and struck an oncoming vehicle.

Because the Parkway is within the special maritime and

territorial

jurisdiction of the federal government, the United States Park

Police

responded to the accident. Koonge was issued citations for the

following infractions: 1) DUI in violation of 36 C.F.R.S 4.23(a)(1); 2)

reckless driving in violation of 36 C.F.R. S 4.2, incorporating Va.

Code

S 46.2-852; 3) operating an uninsured vehicle in violation of 36

C.F.R. S 4.2, incorporating Va. Code S 46.2-707; 4) driving over

the

median in violation of 36 C.F.R. S 4.10(a); and 5) operating a

motor

vehicle on a suspended license in violation of 36 C.F.R. S 4.2,

incorporating Va. Code S 46.2-301.
Koonge appeared before a federal magistrate judge on February 16,

1999 and pled not guilty to all of the charges. The charges for

driving

an uninsured vehicle and for driving on a suspended license were

subsequently dropped. Koonge also moved for dismissal of either the

reckless driving charge or the DUI charge, pursuant to a Virginia

statute that provides as follows:

2
Whenever any person is charged with a violation ofS 18.2-

51.4 or S 18.2-266 [driving under the influence of alcohol

or

drugs] or any similar ordinances of any county, city, or

town

and reckless driving growing out of the same act or acts

and

is convicted of one of these charges, the court shall

dismiss

the remaining charge.

Va. Code S 19.2-294.1 (LEXIS 1999). Koonge claimed that this provision of the Virginia Code was incorporated into the reckless

driving

charge, pursuant to 36 C.F.R. S 4.2, which provides in relevant

part

that

[u]nless specifically addressed by regulations in this

chapter,

traffic and the use of vehicles within a [national] park

area

are governed by State law. State law that is now or may

later

be in effect is adopted and made a part of the regulations

in

this part.

36 C.F.R. S 4.2(a). The court denied the motion, finding that Va.

Code S 19.2-294.1 is procedural in nature and inapplicable to

federal

courts. The case then proceeded to trial.

The evidence at trial showed that Koonge's vehicle had crossed

the

median and struck another vehicle. The driver of the other

vehicle,

Dr. Thareparambil Jacob Joseph, testified that following the

accident,

he approached Koonge and smelled alcohol on his person. The Park

Police at the scene administered field sobriety tests, which

Koonge

failed. Breathalyzer tests were also administered approximately 2

hours after the accident. Koonge registered .063 and.058, both of

which are within the "under the influence" range and below the

level

of intoxication.*
At trial, Koonge testified that he had consumed only one

alcoholic

beverage during the time period from 11:00 p.m. until the time

the

accident occurred the next morning. He further testified that he

entered the median after simply losing control of his vehicle.

(In his

statement at the scene, Koonge told the Park Police that he had

_________________________________________________________________

*Intoxication is a reading of .10 or higher. See 36 C.F.R. S

4.23(a)(2).

3
swerved into the median when he was cut off by another vehicle.)

The

Magistrate Judge rejected Koonge's testimony and found him guilty

of all charges.

The defendant then reasserted his contention that the dual

convictions for reckless driving and DUI were improper, in light of Va.

Code S 19.2-294.1. The court rejected that argument, finding no

prohibition against conviction on both counts in federal court.

Koonge

was sentenced to 18 months' probation with special conditions,

including the completion of an alcohol education program and

restricted driving privileges, and to fines of $950 and a $30

special

assessment.

On April 23, 1999, the district court affirmed the decision of

the

Magistrate Judge, over Koonge's objections. The court found 1)

that

the evidence was sufficient to sustain the conviction, and 2)

that Va.

Code S 19.2-294.1 was a procedural rule and inapplicable in

federal

court. This appeal followed.

II.

A.

We review sufficiency of the evidence to sustain a guilty charge

by

asking whether, when viewed in the light most favorable to the

government, the evidence at trial provided a sufficient basis for

having

found the defendant guilty beyond a reasonable doubt. See United

States v. Williams, 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

evidence to support these conclusions, we cannot fault the

magistrate

judge for choosing to discredit the testimony of Koonge. The

factfinder'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

prohibition 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

Department 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

driving 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

Appellant. 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

robbery, 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 downward for diminished capacity, aberrant behavior, post-offense

rehabilitation, and substantial restitution. We dismiss the appeal for

lack of

jurisdiction.

In 1996, Harvey's doctor prescribed Demerol and Seconal for frequent 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, diminished capacity, post-offense rehabilitation, and substantial

restitution,

as well as his "extraordinary cooperation with authorities and

acceptance 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

departure. The court expressed sympathy for Harvey, and stated that if

it

had discretion to depart, it might do so. However, after hearing

argument, 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 robbery, 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

district 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

guidelines may permit a departure, if "the factor, as occurring in the

particular 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

socioeconomic status (U.S.S.G. S 5H1.10, p.s.); lack of youthful

guidance or similar circumstances indicating a disadvantaged 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 different, 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 dispense 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 process, false imprisonment, and malicious prosecution. The

plaintiffsappellants 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

bankruptcy 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 attachment 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

attorneys' fees, and, in appropriate circumstances, may recover

punitive

damages."

On February 13, 1998, the Matthews filed a complaint against Germantown in the United States District