504 F. App'x 251
4th Cir.
2013

TRAVCO INSURANCE COMPANY v. Larry WARD

No. 10-1710

United States Court of Appeals, Fourth Circuit

Jan. 15, 2013

251

Argued: Sept. 20, 2011. National Association of Home Builders, Amicus Supporting Appellant, National Association of Mutual Insurance Companies; American Insurance Association, Amici Supporting Appellee.

.

Under 18 U.S.C. § 3584 (2006), a district court is required to consider the factors in 18 U.S.C. § 3553(a) when deciding whether to impose concurrent or consecutive prison terms for a defendant who is already subject to an undischarged term of imprisonment.* Section § 3553(a)(5) requires the court to consider “any pertinent policy statement,” which in this case was USSG § 5G1.3(c).

Morrison argues that the district court abused its discretion by failing to consider the § 5G1.3(c) factors when imposing his federal sentence. With respect to the district court‘s consideration of USSG § 5G1.3(c), we ordinarily review legal questions concerning the application of the Sentencing Guidelines de novo. . However, because Morrison failed to raise this issue in the district court, review is only for plain error. . We find that he has not demonstrated error by the district court under either a de novo or plain error standard of review.

A district “court need not engage in ritualistic incantation in order to establish its consideration of a legal issue. It is sufficient if the district court rules on issues that have been fully presented for determination. Consideration is implicit in the court‘s ultimate ruling.” (dealing with the district court‘s alleged failure to consider Guidelines policy statements when revoking a defendant‘s supervised release).

Here, although the court did not specifically discuss USSG § 5G1.3 at sentencing, the court was clearly aware that Morrison was serving a lengthy state sentence. In addressing Morrison‘s argument that the prosecution had engaged in “sentencing manipulation,” by permitting the state to prosecute and sentence him prior to his sentencing on the current charge, the court stated that “all the government did was ... permit him to be taken over to state custody for the disposition of those charges. That does not seem to be a matter of sentence manipulation.” Moreover, absent a “contrary indication,” a sentencing court is presumed to have considered the factors enumerated in 18 U.S.C. § 3553(a) in a non-departure case. .

Accordingly, we affirm Morrison‘s conviction and sentence. 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.

AFFIRMED.

ARGUED: Michael Francis Imprevento, Breit Drescher Imprevento & Walker, PC, Norfolk, Virginia, for Appellant. Stephen Edward Goldman, Robinson & Cole LLP, Hartford, Connecticut, for Appellee. ON BRIEF: Jeffrey A. Breit, John W. Drescher, Breit Drescher Imprevento & Walker, PC, Norfolk, Virginia; Richard J. Serpe, Law Offices of Richard J. Serpe, PC, Norfolk, Virginia, for Appellant. John B. Mumford, Jr., Kathryn E. Kransdorf, Hancock, Daniel, Johnson & Nagle, PC, Glen Allen, Virginia; Wystan M. Ackerman, Daniel F. Sullivan, Jamie M. Landry, Robinson & Cole LLP, Hartford, Connecticut, for Appellee. David S. Jaffe, National Association of Home Builders, Washington, D.C., for National Association of Home Builders, Amicus Supporting Appellant. Thomas W. Curvin, Amy K. Averill, Sutherland Asbill & Brennan LLP, Atlanta, Georgia; Steuart H. Thomsen, Sutherland Asbill & Brennan LLP, Washington, D.C., for National Association of Mutual Insurance Companies, Amicus Supporting Appellee. Raoul G. Cantero, Michelle Holmes Johnson, White & Case LLP, Miami, Florida, for American Insurance Association, Amicus Supporting Appellee.

Before SHEDD and WYNN, Circuit Judges, and DAMON J. KEITH, Senior Circuit Judge of the United States Court of Appeals for the Sixth Circuit, sitting by designation.

Affirmed by unpublished PER CURIAM opinion.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM:

Larry Ward appeals from an order granting summary judgment in favor of Travco Insurance Company and declaring that he is not entitled to coverage under his homeowners insurance policy for alleged drywall-related damages to his home. The district court found that four provisions of the policy excluded coverage. Previously, we certified the following question of Virginia law to the Supreme Court of Virginia:

For purposes of interpreting an “all risk” homeowners insurance policy, is any damage resulting from this drywall unambiguously excluded from coverage under the policy because it is loss caused by:

(a) “mechanical breakdown, latent defect, inherent vice, or any quality in property that causes it to damage itself“;

(b) “faulty, inadequate, or defective materials“;

(c) “rust or other corrosion“; or

(d) “pollutants,” where pollutant is defined as “any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals and waste?”

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The Supreme Court of Virginia has now answered all subparts of the certified question in the affirmative. (2012 WL 5358705). The parties agree, and we find, that the court‘s answers warrant affirmance of the judgment. Accordingly, we affirm.

AFFIRMED.

PER CURIAM

Notes

*
USSG § 5G1.3(c), which is designated as a policy statement, provides that “[i]n any other case involving an undischarged term of imprisonment, the sentence for the instant offense may be imposed to run concurrently, partially concurrently, or consecutively to the prior undischarged term of imprisonment to achieve a reasonable punishment for the instant offense.”