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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_________________________________________________________________ Affirmed by unpublished per curiam opinion.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United States Attorney, UNITED STATES ATTORNEY'S OFFICE, Alexandria, Virginia, for Appellee.Unpublished opinions are not binding precedent in this circuit.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 vehiclethat 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 thefollowing 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 weresubsequently dropped. Koonge also moved for dismissal of either the reckless driving charge or the DUI charge, pursuant to a Virginiastatute that provides as follows:

2Whenever 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).

3swerved 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 dualconvictions 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

4the George Washington Parkway and that his failure to control his vehicle amounted to reckless driving. As there was independentevidence to support these conclusions, we cannot fault the magistrate judge for choosing to discredit the testimony of Koonge. Thefactfinder'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 lawprohibition 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 tobe 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 theDepartment 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

5we were to find that this reckless driving provision brought along with it the prohibition on dual convictions for DUI and recklessdriving 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.

_________________________________________________________________

COUNSELM. Gordon Widenhouse, Jr., Chapel Hill, North Carolina, forAppellant. 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 bankrobbery, 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 todepart downward for diminished capacity, aberrant behavior, post-offenserehabilitation, 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 responsibilit y . . . 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.

2At 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 adeparture. 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 thedistrict 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 theguidelines may permit a departure, if "the factor, as occurring in theparticular circumstances, takes the case outside the heartland of the

3applicable 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, orsocioeconomic status (U.S.S.G. S 5H1.10, p.s.); lack of youthfulguidance 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 factswere 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

4UNPUBLISHEDUNITED 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 under11 U.S.C. S 362 and Maryland common law claims for abuse of process, false imprisonment, and malicious prosecution. Theplaintiffsappellants 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 forbankruptcy 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 withoutfirst seeking the permission of the bankruptcy court. Nevertheless, onJuly 7, 1997, Germantown requested the issuance of a body attachment for Alexis so she would appear in court in aid of Germantown's

2efforts 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 andattorneys' 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