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OPINION
PER CURIAM.
Joseph W. Farmer appeals pro se from the District Court’s order dismissing his complaint. For the following reasons, we will vacate and remand for further proceedings. See 3d Cir. LAR 27.4 (2008); 3d Cir. I.O.P. 10.6.
*673I.
Farmer is a Pennsylvania state prisoner who was convicted of rape and other crimes in 1982. He filed the complaint at issue here under 42 U.S.C. § 1983 against numerous Commonwealth defendants, challenging their application of the 1996 amendments to the Pennsylvania Parole Act, 61 Pa.C.S. § 331.1, et seq., and “federal grant award requirements.”1 Farmer alleges that application of these provisions to him violates his due process rights and the Ex Post Facto Clause of the United States Constitution because they make it more difficult for him to obtain parole than did the provisions in force at the time of his conviction.
In particular, Farmer alleges a number of ways in which the provisions restrict the availability of parole for offenders classified as “violent.” He contends, for example, that these provisions (1) increased the minimum prison term for violent offenders from fifty to eighty-five percent of the statutory maximum, (2) require three votes for parole instead of the two that had been required in the past, and (3) “expanded” the eligibility review period by allowing more than one year to elapse between violent offenders’ eligibility reviews. Farmer alleges both that defendants (acting with “deliberate indifference”) imper-missibly applied these provisions at his prior parole hearings and that these provisions impermissibly restrict his eligibility for parole in the future. In his complaint, he requests monetary damages, a declaratory judgment, and an injunction “ordering the Parole Board and Prison Officials to grant me an immediate parole hearing using constitutionally proper procedures and policies[.]”
Along with his complaint, Farmer filed a motion for leave to proceed in forma pauperis. By memorandum and order entered April 13, 2009, 2009 WL 982638, the District Court granted that motion, screened the complaint under 28 U.S.C. § 1915(e)(2), and dismissed it as frivolous pursuant to § 1915(e)(2)(B)(i). Farmer appeals.2
II.
In deeming Farmer’s complaint frivolous, the District Court did not conclude that his substantive claims lack arguable merit, and we cannot say they do. To the contrary, we have held (albeit in habeas cases) that the parole amendments of which Farmer complains “changed the substantive criteria for parole in Pennsylvania and that a petitioner who could demonstrate individual disadvantage from retroactive application of the 1996 Amendments could prevail on an ex post facto claim.” Parker v. Kelchner, 429 F.3d 58, 64 n. 5 (3d Cir.2005) (citing Richardson v. Pa. Bd. of Prob. and Parole, 423 F.3d 282 (3d Cir.2005)). Thus, although we express no opinion on the merits of Farmer’s claims, the substance of those claims has an arguable basis in law.
*674The District Court, however, determined that Farmer’s claims are not cognizable under § 1983. The District Court concluded that, under Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973), Farmer could bring these claims only by means of a petition for a writ of habeas corpus because they challenge the fact or duration of his confinement. The District Court further concluded that, under Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), Farmer could not obtain monetary damages because success on his claims would imply the invalidity of his prior parole proceedings, none of which already has been invalidated.
The District Court accurately stated the foregoing principles of law, but erred in applying them here. Farmer’s complaint, properly construed, has two aspects. First, he seeks prospective injunctive relief — i.e., a new parole hearing under the procedures in place at the time of his conviction. The United States Supreme Court has held that materially indistinguishable claims may be brought under § 1983. See Wilkinson v. Dotson, 544 U.S. 74, 78-82, 125 S.Ct. 1242, 161 L.Ed.2d 253 (2005). In that case, two state prisoners brought claims under § 1983 alleging that retroactive application of parole guidelines that affected both their eligibility and suitability for parole violated the Ex Post Fac-to Clause. Like Farmer, they sought injunctions requiring new parole hearings that comported with ex post facto requirements. See id. at 77, 125 S.Ct. 1242. The District Court concluded that they could bring their claims only by means of habeas petitions, but the Supreme Court, after summarizing its jurisprudence on this issue, held that the prisoners’ claims were actionable under § 1983. See id. at 78-82, 125 S.Ct. 1242. Accordingly, the District Court erred in determining that this aspect of the complaint is frivolous.
Second, Farmer raises claims arising from his prior parole proceedings. The question of whether these claims may be brought under § 1983 is a more difficult one, but Farmer’s attempt to do so cannot be characterized as frivolous on the face of his existing complaint. Generally, because Farmer does not allege that his prior parole proceedings have been invalidated, he may not raise claims arising from those proceedings under § 1983 — whether seeking monetary damages or other relief — if “success on the § 1983 claim would necessarily demonstrate the invalidity of the Parole Board’s decision[s].” Williams v. Consovoy, 453 F.3d 173, 177 (3d Cir.2006) (citations omitted).
Whether that is so necessarily depends on the precise nature of the challenge. We have recognized, for example, that challenges to parole hearing procedures, as opposed to their results, might be actionable under § 1983 if such challenges neither contest the fact of confinement nor seek speedier release. See Benchoff v. Colleran, 404 F.3d 812, 815 n. 4 (3d Cir.2005) (collecting cases). Challenges to parole procedures are not always actionable under § 1983, but the nature of the challenge must be examined to determine whether success necessarily would imply the invalidity of the parole hearing’s result. See Edwards v. Balisok, 520 U.S. 641, 646-47, 117 S.Ct. 1584, 137 L.Ed.2d 906 (1997).
In this case, Farmer does not request release from confinement or expressly seek to overturn the results of any prior parole proceeding. Instead, he appears to challenge, at least in part, the procedures that were employed during those proceedings. His allegations, however, do not provide sufficient detail to determine whether his claims are actionable under § 1983. Farmer has not identified or provided any other details about his prior parole proceedings. And, although he makes gener*675alized allegations that those proceedings were tainted by the alleged ex post facto violations described above, he does not allege any specific error in connection with any specific proceeding. Thus, it is not possible to determine that success on his challenges necessarily would imply that the result of any such proceeding is invalid. Under these circumstances, the District Court should not have determined that this aspect of Farmer’s complaint is frivolous. See Denton, 504 U.S. at 34, 112 S.Ct. 1728. See also Roman v. Jeffes, 904 F.2d 192, 195 n. 4 (3d Cir.1990) (explaining that dismissal under former § 1915(d) “is appropriate only when the complaint is truly frivolous and no amendment would cure the defect”).
Accordingly, the judgment of the District Court will be vacated and this matter remanded for further proceedings consistent with this opinion. Because the District Court dismissed Farmer’s complaint solely on the mistaken ground that it is frivolous, we express no opinion on whether it states a claim upon which relief may be granted. If the District Court, either sua sponte under § 1915(e)(2)(B)(ii) or on motion of a defendant, determines that it does not, it should grant Farmer leave to amend unless amendment would be inequitable or futile. See Phillips v. County of Allegheny, 515 F.3d 224, 245 (3d Cir.2008).
. Farmer has not alleged the source of these federal requirements, but he appears to be referring to the Violent Offenders Incarceration — Truth in Sentencing Act, 42 U.S.C. § 13704, et seq., which imposes requirements that states must meet in order to receive federal grants for the construction and improvement of prisons. See Porter v. Ray, 461 F.3d 1315, 1321 (11th Cir.2006).
. We have jurisdiction under 28 U.S.C. § 1291. We review the District Court’s dismissal of the complaint as frivolous for abuse of discretion, see Denton v. Hernandez, 504 U.S. 25, 33-34, 112 S.Ct. 1728, 118 L.Ed.2d 340 (1992), but exercise plenary review over its application of law, see Deutsch v. United States, 67 F.3d 1080, 1083 (3d Cir.1995). A complaint is ''frivolous” if it lacks any arguable basis in fact or law. See Denton, 504 U.S. at 31, 112 S.Ct. 1728.
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OPINION
PER CURIAM.
Siddiq A. Aleem-x, a pro se prisoner, filed this action under 42 U.S.C. § 1983 in the United States District Court for the District of Delaware claiming that defendant Edward Wescott, a corrections officer, violated his constitutional rights by making abusive and harassing statements and gestures to Aleem-x on three occasions. As relief, Aleem-x sought, among other things, damages for emotional and psychological stress. The District Court dismissed the complaint sua sponte under 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b) as frivolous and for failure to state a claim upon which relief can be granted, explaining that while defendant’s alleged statements and actions could be viewed as unprofessional, verbal abuse and harassment, without more, do not rise to the level of a constitutional violation.
Aleem-x timely appealed and has been granted leave to proceed informa pauper-is. We have appellate jurisdiction under 28 U.S.C. § 1291. Because this appeal lacks any arguable legal merit, we will dismiss it pursuant to 28 U.S.C. § 1915(e)(2)(B).
As the District Court explained, accepting Aleem-x’s allegations as true, he failed to state a viable claim for relief. Verbal abuse of a prisoner, even of the lewd variety alleged here, is not actionable under § 1983. See, e.g., McBride v. Deer, 240 *732F.3d 1287, 1291 n. 3 (10th Cir.2001) (explaining that “acts or omissions resulting in an inmate being subjected to nothing more than threats and verbal taunts do not violate the Eighth Amendment”); Patton v. Przybylski, 822 F.2d 697, 700 (7th Cir.1987) (“Defamation is not a deprivation of liberty within the meaning of the due process clause.”). We agree with the District Court that any amendment to the complaint would be futile, and thus see no error in the dismissal without leave to amend.
For these reasons, we will dismiss the appeal.
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OPINION
PER CURIAM.
Juan J. Wood, Jr. petitions for review of an order of the final administrative order of the Department of Homeland Security, Immigration and Customs Enforcement, ordering him removed to Panama. For the reasons that follow, we will deny the petition.
In 1993, Wood was convicted of conspiracy to manufacture a controlled substance in violation of 21 U.S.C. § 846 and attempt to possess with intent to distribute a controlled substance in violation of 21 U.S.C. § 846 and § 841(a)(1). In July 2008, Wood filed a Form N-600 application for a *735certificate of citizenship based on his birth in 1970 in the Panama Canal Zone and the United States citizenship of his mother. In September 2008, the application was denied because Wood had not shown that either of his parents were United States citizens at the time of his birth. On May 18, 2009, a Final Administrative Removal Order was issued on the basis that Wood is an alien with an aggravated felony conviction. See 8 U.S.C. § 1227(a)(2)(A)(iii) and § 1228(b). (A.R.001.) Before us is Wood’s petition for review.1
Although 8 U.S.C. § 1252(a)(2)(C) provides that no court has jurisdiction to review a final order of removal against an alien who is removable for having committed an “aggravated felony” as defined by statute, the REAL ID Act provides that nothing in 1252(a)(2)(C) “which eliminates judicial review, shall be construed as precluding review of constitutional claims or questions of law raised upon petition for review filed with an appropriate court of appeals in accordance with this section.” 8 U.S.C. § 1252(a)(2)(D). Under 8 U.S.C. § 1252(b)(5)(A), we have jurisdiction to review a claim of nationality if there is no genuine issue of material fact with respect to that claim. The parties do not dispute the underlying facts of the case. We exercise plenary review over Wood’s claims. Jordon v. Attorney General, 424 F.3d 320, 328 (3d Cir.2005).
Wood challenges the removal order claiming that he is a United States citizen by virtue of his birth in the Panama Canal Zone. Wood’s claim is governed by 8 U.S.C. § 1403(a), which provides that “[a]ny person born in the Canal Zone on or after February 26, 1904, and whether before or after the effective date of this Act, whose father or mother or both at the time of the birth of such person was or is a citizen of the United States,” is declared to be a United States citizen. Wood does not dispute that at the time of his birth in Panama, neither one of his parents was a United States citizen.2 Accordingly, he did not acquire United States citizenship at birth under 8 U.S.C. § 1403(a).3 He is thus removable due to his aggravated felony conviction. See 8 U.S.C. § 1227(a)(2)(A)(iii) and § 1228(b).
Because this petition for review presents no “substantial question,” we will grant the government’s motion for summary action and summarily deny the petition for review. See Third Circuit LAR 27.4 and I.O.P. 10.6. Wood’s motions for a stay of removal and to expedite issuing a stay of removal are denied as moot.
.Wood filed a petition under 28 U.S.C. § 2241 in the District Court, which was transferred to this Court pursuant to the REAL ID Act. Wood also filed a petition for review. The two matters have been consolidated. Wood has filed motions to stay his removal and to expedite his case. The government has filed responses to the stay motions, as well as a motion for summary action. Wood has also filed a "Reply Brief” which appears to be a response in opposition to summary action, as well as other documents in which he provides further argument.
. The record indicates a finding that Wood's mother was not a United States citizen until 1995.
. Wood argues that he is a United States citizen because he was born in the Canal Zone within a window of time during which certificates of citizenship were authorized. He relies on a prior version of 8 U.S.C. § 1101(a)(38), which, by his own description, concerned such certificates issued to “citizens of the United States.” As discussed, Wood has not shown that he is a citizen of the United States under 8 U.S.C. § 1403.
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OPINION
PER CURIAM.
At the time he filed his petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241, Damian Marine was incarcerated at FCI-McKean in Pennsylvania. Marine had been transferred to that facility from a halfway house in Brooklyn, New York, following an adverse disciplinary hearing decision in which he was adjudicated guilty of failing to submit a pay stub from his place of employment. The disciplinary hearing also resulted in both a rescheduling of his provisional release date and a loss of thirteen days good time credits.
In his habeas petition, Marine challenged the disciplinary proceeding on due process grounds and demanded expungement of the relevant incident report, compensatory damages for emotional distress, termination of his 3-year term of supervised release, and immediate release from custody. The latter demand was attached to Marine’s claim that had his provisional release date not been pushed back as a result of the disciplinary decision, he would no longer be in custody.
In an exhaustive report and recommendation, the Magistrate Judge first determined that Marine’s successful administrative appeal had rendered moot his claim for expungement of the incident report. The Magistrate Judge next determined that Marine had failed to exhaust his claim regarding the provisional release date, and *737that in any event the claim lacked merit. The Magistrate Judge also determined that only the sentencing court, the District Court for the Southern District of Florida, could modify Marine’s term of supervised release, and that Marine’s claim for compensatory damages based on emotional distress was precluded in a habeas proceeding by Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973). The District Court adopted the Magistrate Judge’s recommendation that the habeas petition be denied. Marine appealed, and the Government filed a motion for summary affirmance.
We have jurisdiction over the appeal pursuant to 28 U.S.C. § 1291 and 28 U.S.C. § 2253(a). A certificate of appealability is not required to appeal from the denial of Marine’s § 2241 petition. See Burkey v. Marberry, 556 F.3d 142, 146 (3d Cir.2009). We exercise plenary review over the District Court’s legal conclusions, and review its factual findings for clear error. See Ruggiano v. Reish, 307 F.3d 121, 126 (3d Cir.2002). Summary affirmance is proper when “it clearly appears that no substantial question is presented or that subsequent precedent or a change in circumstances warrants such action.” Third Circuit I.O.P. 10.6.
We agree with the Government that events subsequent to his filing of the habeas petition have rendered moot Marine’s primary requests for relief. See Burns v. Pa. Dep’t of Corr., 544 F.3d 279, 283 (3d Cir.2008). Specifically, his incident report was expunged, his good time credits were restored, and he is no longer in custody. Moreover, Marine’s claims concerning his term of supervised release and his alleged emotional distress lack merit for substantially the reasons given in the Magistrate’s report, and they do not present a “substantial question.”
Accordingly, we grant the Government’s motion for summary affirmance and will affirm the judgment of the District Court.
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OPINION
PER CURIAM.
Arthur L. Hairston, Sr., appeals pro se from the order of the District Court dismissing his petition for a writ of habeas corpus. We will summarily affirm. See 3d Cir. LAR 27.4 (2008); 3d Cir. I.O.P. 10.6.
Hairston is a federal prisoner. This appeal arises from his latest attempt to challenge the constitutionality of the provision of the Prisoner Litigation Reform Act (“PLRA”) codified at 28 U.S.C. § 1915(b). That provision requires prisoners granted in forma pauperis status to pay their filing fees in full' and authorizes district courts to collect payment from their prison accounts. That provision does not apply to properly-designated habeas petitions. See Santana v. United States, 98 F.3d 752, 756 (3d Cir.1996).
Hairston initially raised his constitutional challenge in a habeas petition that he purported to file under 28 U.S.C. § 2241, which the District Court dismissed on August 28, 2007. Hairston did not appeal that ruling. Instead, he filed a separate civil rights complaint raising the same challenge. The District Court dismissed that complaint, and Hairston appealed. We ultimately dismissed his appeal for failure to prosecute. Hairston v. Gronolsky, C.A. No. 08-2641 (Aug. 8, 2008 order). Hairston then filed a petition for a writ of mandamus in this Court seeking an order directing the District Court to provide injunctive relief in connection with his dismissed civil rights action. We denied that petition. See In re Hairston, 295 Fed.Appx. 506 (3d Cir.2008).
Finally, Hairston filed the petition at issue here, again purportedly under § 2241 and again claiming that § 1915(b) is unconstitutional. Specifically, Hairston claims that President Clinton was “tricked” into signing the enacting legislation, that the District Court is “extorting” money from him by ordering the withdrawal of funds to cover the filing fees for his prior civil actions, and that the statute impermissibly deprives him of money to pay for telephone calls to his family. The District Court dismissed Hairston’s petition by opinion and order entered May 22, 2009, and Hairston appeals.1
As the District Court correctly explained, only challenges addressed to the fact or duration of confinement or to the execution of a sentence generally are cognizable in habeas. See, e.g., Woodall v. Federal Bureau of Prisons, 432 F.3d 235, 241 (3d Cir.2005). A challenge like Hairston’s to the constitutionality of § 1915(b) *739goes to the conditions of his confinement, and thus may be asserted only in a civil rights action. See Leamer v. Fauver, 288 F.3d 532, 542 (3d Cir.2002). Thus, the District Court properly dismissed Hairston’s petition. The District Court also properly refrained from sua sponte treating Hairston’s petition as itself a civil rights complaint, which again would have subjected him to the very statutory provision that he finds objectionable and to the “three strikes” provision of § 1915(e).
Accordingly, we will affirm. In addition, we caution Hairston that further attempts to evade the PLRA by filing mis-characterized habeas petitions may indeed subject him to these provisions of the PLRA or to the imposition of sanctions. Cf. Madden v. Myers, 102 F.3d 74, 78 (3d Cir.1996) (“A litigant should not be able to evade the PLRA by masking as a mandamus petition a paper otherwise subject to the Act.”).
. We have jurisdiction under 28 U.S.C. §§ 1291 and 2253(a). Hairston purported to bring his challenge under § 2241, and it clearly does not lie under § 2255, so he does not require a certificate of appealability to appeal. See Burkey v. Marberry, 556 F.3d 142, 146 (3d Cir.2009). We review the District Court’s legal rulings de novo. See Vega v. United States, 493 F.3d 310, 314 (3d Cir.2007).
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OPINION
PER CURIAM.
Mahmoud Gharib Mahmoud Shabayek, a citizen of Egypt, entered the United States as a visitor in 2006. After he overstayed his visa, the Government charged him with *740removability in March 2007. He appeared before an Immigration Judge (“IJ”) and requested voluntary departure, which the IJ granted on June 1, 2007. Shabayek was permitted to voluntarily depart the United States within 90 days.
On August 22, 2007, Shabayek married a United States citizen named Charlotte Loving. On September 28, 2007, he moved to open the removal proceedings, asking for reopening to allow him to adjust his status to that of a lawful permanent resident. With his motion to reopen, he filed his marriage certificate and a Form 1-130 Petition for Alien Relative. The Government opposed the motion, noting that Shabayek was not the beneficiary of an approved 1-130 Petition and that, in any event, Shabayek could not show that his marriage was bona fide.
The IJ denied the motion to reopen based on Shabayek’s “failure to meet the standards of Matter of Velarde-Pacheco, 23 I. & N. Dec. 253 (BIA 2002), and Matter of Laureano, 19 I. & N. Dec. 1 (BIA 1983).” R. 22 (IJ’s order — the quoted language is the analysis in its entirety). Shabayek appealed to the BIA. The BIA dismissed the appeal. The BIA ruled that Shabayek had not made a prima facie showing that his marriage was bona fide. The BIA additionally noted that even if Shabayek had made such a showing, the denial “would have been justified” because the motion was untimely. The BIA also ruled that because Shabayek had remained in the country beyond the period of voluntary departure, he had become ineligible for adjustment of status.
Shabayek filed a petition for review. The Government filed a motion for summary affirmance. The Government argues that the BIA’s decision should be summarily affirmed because Shabayek failed to establish his eligibility for adjustment of status. The Government also contends that Shabayek’s failure to voluntarily depart bars him from being eligible for an adjustment of status under 8 U.S.C. § 1229e(d)(l)(B).
Although Shabayek did not file a response to the motion for summary affirmance, he filed a motion for a stay of removal. He notes that he is married to a United States citizen who is disabled and requires his assistance. He further notes that the 1-130 petition remains pending. The Government opposes the stay motion, arguing that Shabayek does not show a likelihood of success on the merits of his petition or that the equities otherwise weigh in favor of a stay.
We have jurisdiction pursuant to 8 U.S.C. § 1252. We review an order denying a motion to reopen under a highly deferential abuse of discretion standard. See Guo v. Ashcroft, 386 F.3d 556, 562 (3d Cir.2004). The BIA’s discretionary decision will not be disturbed unless it is arbitrary, irrational, or contrary to law. See Guo, 386 F.3d at 562. Applying this standard, we conclude that there is no substantial issue on appeal. Accordingly, we will summarily deny Shabayek’s petition for review. See Third Circuit LAR 27.4; I.O.P. 10.6.
Shabayek premises his claim for reopening on his purported eligibility for adjustment of status. The BIA may grant a motion to reopen for adjustment of status based on a motion to reopen for adjustment of status in light of a marriage
“where the following factors are present: (1) the motion is timely filed; (2) the motion is not numerically barred by the regulations; (3) the motion is not barred by In re Shaar, 21 I. & N. Dec. 541 (BIA 1996), or on any other procedural grounds; (4) the motion presents clear and convincing evidence indicating a strong likelihood that the [alien’s] marriage is bona fide; and (5) the Service either does not oppose the motion or *741bases its opposition solely on Matter of Arthur ”
Bhiski v. Ashcroft, 373 F.3d 363, 371 (3d Cir.2004) (quoting Matter of Velarde-Pacheco, 23 I. & N. Dec. 253, 256 (BIA 2002)).1 Shabayek, who got married approximately two months after the voluntary departure order (to a possibly thrice-married woman who had filed 1-130 petitions for other husbands), did not present evidence to show that his marriage was bona fide. He only filed his marriage certificate and a Form 1-130 Petition for Alien Relative. Furthermore, as the BIA noted, the motion, filed beyond the 90 day deadline for a motion to reopen, was untimely. See 8 C.F.R. § 1003.23(b)(1).
For these reasons, we conclude that the BIA’s order was not arbitrary, irrational, or contrary to law, and that Shabayek presents no substantial issue on appeal.2 We grant the Government’s motion, and we will deny the petition for review. Shabayek’s motion for a stay of removal is also denied.
. The BIA has since ruled that motion to reopen to apply for adjustment of status based on a marriage entered into after removal proceedings are commenced may not be denied simply because the Government opposes it. See Matter of Lamus-Pava, 25 I. & N. Dec. 61 (BIA 2009).
. We conclude that it is unnecessary to reach the issue whether Shabayek’s failure to voluntarily depart bars him from being eligible for an adjustment of status under 8 U.S.C. § 1229c(d)(l)(B).
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OPINION
PER CURIAM.
Nathaniel Lawson, proceeding pro se, appeals the District Court’s orders dismissing his case and denying his motion for reconsideration, respectively. Because the appeal does not present a substantial question, we will summarily affirm the District Court’s orders. See 3d Cir. LAR 27.4; 3d Cir. I.O.P. 10.6.
I.
In October 2006, Lawson filed a counseled complaint against National Continental Insurance Company (“National Continental”) in New Jersey Superior Court, alleging that National Continental wrongfully terminated an insurance policy held by Nate’s Transportation, a bus company owned by Lawson.1 In September 2007, the Superior Court granted National Continental’s motion to dismiss the case.
In June 2008, Lawson filed a pro se complaint against National Continental in the District Court of New Jersey, re-alleging his breach of contract claim and raising claims under the First, Fourth, Eighth, and Fourteenth Amendments, as well as claims pursuant to alleging violations of 42 U.S.C. §§ 1881, 1855, 1982, 1986 and 1988. National Continental moved to dismiss Lawson’s complaint, and on January 26, 2009, the District Court granted the motion, dismissing the case with prejudice. The court concluded that (1) Lawson’s complaint failed to allege any facts to support his federal and constitutional claims; and (2) his breach of contract claim was precluded by the doctrine of res judicata. On February 24, 2009, the District Court denied Lawson’s motion for reconsideration.2 Lawson now appeals the District Court’s January 26 and February 24 orders to this Court.
II.
We first must examine whether we have jurisdiction to consider this appeal *743because the notice of appeal was not filed until April 23, 2009. A party in a civil case is required to file a notice of appeal within thirty days of entry of the judgment. Fed. R.App. P. 4(a)(1)(A). Generally, a judgment cannot be entered unless it is set out in a separate document. Fed.R.Civ.P. 58(c)(2)(A). A judgment is treated as a separate document if it: (1) is self contained and separate from the opinion, (2) notes the relief granted, and (3) omits (or at least substantially omits) the trial court’s reasons for disposing of the claims. In re Cendant Corp. Sec. Litig., 454 F.3d 235, 241 (3d Cir.2006). The District Court’s January 26, 2009 order, which contains three pages describing the reasons for the District Court’s dismissal, fails to satisfy the third criterion — omission of reasoning. As such, pursuant to Fed. R.App. P. 4(a)(7)(A)(ii), the January 26 order was not considered entered for 150 days. Because Lawson filed his notice of appeal eighty-seven days after the January 26 order, his appeal is timely.
III.
Having determined that the appeal is timely, we now turn to the merits of Lawson’s claim. Summary action is warranted when no substantial question is presented on appeal. See 3d Cir. L.A.R. 27.4 and I.O.P. 10.6.
Lawson appeals from the order of the District Court dismissing his complaint under Fed.R.Civ.P. 12(b)(6). To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, — U.S. -, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). The assumption of truth does not apply, however, to legal conclusions couched as factual allegations or to “[tjhreadbare recitals of the elements of a cause of action, supported by mere conclusory statements.” Id.
We agree with the District Court that Lawson’s complaint fails to allege any facts to support his federal or constitutional claims. While Lawson alleges that National Insurance denied Nate’s Transportation insurance coverage and added a premium without reason, the complaint does not contain any facts that would allow one to reasonably infer that its actions violated federal or constitutional law. Lawson’s conclusory allegations are insufficient to plausibly demonstrate that National Insurance violated Lawson’s civil or constitutional rights. See Iqbal, 129 S.Ct. at 1949.
As for Lawson’s breach of contract claim, we agree with the District Court that this claim is barred by res judicata. Res judicata bars a second suit where “there has been (1) a final judgment on the merits in a prior suit involving (2) the same parties or their privies and (3) a subsequent suit based on the same cause of action.” Lubrizol Corp. v. Exxon Corp., 929 F.2d 960, 963 (3d Cir.1991). Here, all three requirements are met, as the New Jersey Superior Court entered a valid, final judgment on the merits in September 2007, and the parties and the cause of action in that case were identical to those in this case.
*744We have held that when a complaint is dismissed for failure to state a claim upon which relief may be granted, a plaintiff should be granted the opportunity to amend his complaint unless amendment would be inequitable or futile. Grayson v. Mayview State Hosp., 293 F.3d 103, 106 (3d Cir.2002). Given that, as discussed above, Lawson previously litigated this breach of contract claim in New Jersey Superior Court and there are no facts to infer that National Insurance violated his federal or constitutional rights, we conclude that it would have been futile for the District Court to provide Lawson with leave to amend his complaint before granting the motion to dismiss.
In light of the above, we will summarily affirm the District Court’s orders dismissing the complaint and denying Lawson’s motion for reconsideration.
. In the complaint filed in District Court and the notice of appeal filed in this Court, Nate's Transportation was incorrectly pleaded as a plaintiff and an appellant. However, Nate’s Transportation, Inc. is a corporation and therefore cannot proceed as a pro se litigant. See Rowland v. California Men's Colony, 506 U.S. 194, 201-02, 113 S.Ct. 716, 121 L.Ed.2d 656 (1993). And, in addition, Lawson, as a non-attorney, may not represent the interests of a corporation in a federal court. See Osei-Afriyie v. Med. Coll of Pa., 937 F.2d 876, 883 (3d Cir.1991).
. After filing his original motion for reconsideration on January 28, Lawson filed addition*743al motions for reconsideration on February 13, February 20, March 4, and March 31. None of these motions were timely filed. See Fed. R.App. P. 58(e). The District Court noted in its February 24, 2009 order, that it considered both Lawson’s original motion for reconsideration and his February 13 motion.
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OPINION
PER CURIAM.
Luis Humberto Barbosa, a federal prisoner proceeding pro se, appeals the District Court’s denial of his (1) 18 U.S.C. § 3582(c)(2) motion for a reduced sentence, (2) request for an extension of the time to reply to the Government’s opposition to that motion, and (3) motion for the production of certain documents. For the reasons that follow, we will summarily affirm.
I.
In July 1998, the Drug Enforcement Administration (“DEA”) arrested Barbosa for importing 882 grams of what both the DEA and Barbosa believed to be heroin. A DEA lab test later revealed, however, that the substance was actually a form of cocaine base — a form different from crack. In January 1999, an Eastern District of Pennsylvania jury convicted Barbosa of possession with intent to distribute more than 50 grams of a controlled substance.1 Because Barbosa had a prior felony drug conviction, the court sentenced him to 20 *748years’ imprisonment, the mandatory minimum sentence for possession with intent to distribute more than 50 grams of cocaine base. See 21 U.S.C. § 841(b)(1)(A).
On direct appeal, Barbosa argued, inter alia, that the 20-year mandatory minimum did not apply to him because “cocaine base,” as referred to in § 841(b)(1)(A), meant only crack, not other forms of cocaine. We rejected that argument and affirmed the District Court’s judgment. See United States v. Barbosa, 271 F.3d 438, 461-67 (3d Cir.2001). In December 2003, Barbosa moved to vacate his sentence pursuant to 28 U.S.C. § 2255. The District Court denied the motion and we declined to issue a certificate of appealability. We subsequently denied Barbosa’s request for leave to file another § 2255 motion.
In September 2008, Barbosa moved to reduce his sentence pursuant to 18 U.S.C. § 3582(c)(2) and to strike “the illegal portion of his sentence.” In support of this motion, he argued that Amendments 706 and 711 to the Sentencing Guidelines warranted a reduction in his sentence.2 Moreover, he seemed to reassert his claim that the sentencing court had erred in sentencing him to 20 years’ imprisonment. Finally, he claimed that, pursuant to United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), “the [sentencing] court is required to afford [him] ... benefits and considerations which were not available at the time of [his] original sentencing.” On the same day he filed his § 3582(c)(2) motion, he also reiterated a request for the production of documents pursuant to Fed.R.Crim.P. 16, a request that the court apparently had denied without prejudice in 2001. After the Government responded to Barbosa’s § 3582(c)(2) motion — the Government did not respond to the discovery motion — he moved for an extension of the time to file a reply.
A few days later, the District Court ruled on the pending motions. First, the court denied the § 3582(c)(2) motion, holding that this provision did not apply to him because he was sentenced pursuant to a statutory mandatory minimum, not the Sentencing Guidelines. Second, the court denied his discovery motion. In doing so, the court stated that the proceedings were well past the trial stage and that there were not any pending petitions or other civil proceedings to which this request related. Finally, the court dismissed his motion for an extension of time to file a reply as moot. Barbosa now appeals the District Court’s judgment.
II.
We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. We exercise plenary review over a district court’s determination that a defendant is ineligible for a sentence reduction under § 3582(c). See United States v. Sanchez, 562 F.3d 275, 277 & n. 4 (3d Cir.2009). We review a district court’s denial of a discovery motion, as well as matters concerning a district court’s control of its docket, for abuse of discretion. Lloyd v. Hovensa, 369 F.3d 263, 274 (3d Cir.2004) (discussing review of district court’s denial of a discovery motion); see In re Fine Paper Antitrust Litig., 685 F.2d 810, 817 (3d Cir.1982) (discussing review of district court’s control of its docket).
The District Court did not eir in denying Barbosa’s motion to reduce his sentence. Although Barbosa argues that he is entitled to such a reduction based on amendments to the Guidelines’ treatment *749of crack offenses, these amendments do not apply to him because his case does not involve a crack offense. Even if crack were the drug at issue here, he would still be ineligible for a sentence reduction because he was sentenced pursuant to a statutory mandatory minimum, not a guideline modified by the amendments at issue. See U.S.S.G. § 1B1.10 cmt. n. 1(A) (stating that a sentence reduction pursuant to § 3582(c)(2) is not authorized if “the amendment does not have the effect of lowering the defendant’s applicable guideline range because of the operation of another guideline or statutory provision (e.g., a statutory mandatory minimum term of imprisonment)”); United States v. Doe, 564 F.3d 305, 315 (3d Cir.2009) (holding that amendment to Guidelines did not render defendant, who was subject to a statutory mandatory minimum sentence of life imprisonment, eligible for a sentence reduction under § 3582(c)(2)).
Barbosa’s invocation of Booker is misplaced as well, for Booker does not give the sentencing court an independent basis upon which to reduce his sentence. See United States v. Mateo, 560 F.3d 152, 155 (3d Cir.2009) (stating that “this Court has rejected the argument that Booker provides a basis for reduction of sentence not otherwise allowable under § 3582(c)”). Moreover, to the extent his motion sought to reiterate an attack on his sentence, such an attack is outside the scope of a § 3582(c)(2) motion. To properly present such a claim, Barbosa would need to request and obtain leave from this Court to file a second or successive 28 U.S.C. § 2255 motion. Finally, because Barbosa’s motion clearly lacked merit, the District Court did not abuse its discretion when it denied his request for an extension of time to file a reply brief. See In re Fine Paper Antitrust Litig., 685 F.2d at 817 (stating that this Court “'will not interfere with a trial court’s control of its docket except upon the clearest showing that the procedures have resulted in actual and substantial prejudice to the complaining litigant” (internal quotations and citation omitted)).
The District Court also did not err in denying Barbosa’s Fed.R.Crim.P. 16 discovery motion. Rule 16 provides that, upon a defendant’s request, the Government must allow him to copy or photograph documents and other materials in the Government’s possession, so long as “(i) the item is material to preparing the defense; (ii) the government intends to use the item in its case-in-chief at trial; or (iii) the item was obtained from or belongs to the defendant.” Fed.R.Crim.P. 16(a)(1)(E). In this case, Barbosa seeks the production of “certified records” from the State of Florida, the State of New York, the former Immigration and Naturalization Services, the FBI, and the DEA that relate to a third party. Barbosa indicates that he made this request once before, in 2001, which the trial court ultimately denied.
As a preliminary matter, it is not clear whether Barbosa ever made a second request to the Government to inspect these materials. Even if Barbosa did renew his request, the Government was not required to produce these documents because none of the three above-noted conditions mandating production is present. Indeed, Barbosa’s trial has long'since ended, and no direct or collateral challenges to his conviction are pending. That his § 3582(c)(2) motion is pending is of no consequence here, as the requested documents do not bear on whether amendments to the Guidelines warrant a reduction in his sentence.
Because this appeal does not present a substantial question, we will summarily affirm the District Court’s judgment. See 3d Cir. LAR 27.4; 3d Cir. I.O.P. 10.6. *750Barbosa’s motion for appointment of counsel is denied.
. The trial court did not submit to the jury the issue of which substance Barbosa intended to distribute. On direct appeal, we held that the trial court’s failure to do so constituted error but that this error was harmless. United States v. Barbosa, 271 F.3d 438, 461 (3d Cir.2001).
. Amendment 706 reduced by two levels the base offense levels for certain crack offenses. United States v. Wise, 515 F.3d 207, 219 (3d Cir.2008). Amendment 711 modified Amendment 706 in ways not relevant to this appeal.
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OPINION
SLOVITER, Circuit Judge.
Syeed Briggs was convicted by a jury of conspiracy to commit aimed bank robbery (Count 1), two counts of armed bank robbery (Counts 2 and 4), and two counts of aiding and abetting the carrying and use of a firearm during a crime of violence (Counts 3 and 5). After Briggs timely filed a notice of appeal, his appointed appellate counsel filed a motion to withdraw as counsel and a brief in support pursuant to Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).
I.
Because we write primarily for the parties, our recitation of the facts is brief. This case arises out of two bank robberies in the fall of 2006. First, on September 28, 2006, Briggs, Alfreddie Postell and two other conspirators planned and executed an armed robbery of the American Heritage Federal Credit Union in King of Prussia, Pennsylvania. (PSR ¶ 11.) Briggs supplied and drove the getaway ear; the conspirators divided the proceeds of the robbery at Briggs’ apartment. (PSR ¶ 11.) Second, on October 16, 2006, Briggs, Postell and two other conspirators planned and executed an armed bank robbery of the Nova Savings Bank in Plymouth Meeting, Pennsylvania. (PSR ¶ 12.) Briggs again provided the getaway car and use of his apartment.
On October 23, 2006, agents from the Federal Bureau of Investigations (“FBI”) interviewed Postell regarding the robbery of the Nova Savings Bank. Postell told the agents that he planned and executed the robbery of the Nova Savings Bank with three others, including Briggs. Aimed with search warrants for Briggs’ residence and ear, the FBI agents knocked on the door of Briggs’ apartment on October 25, 2006. They waited about forty-five seconds before entering the apartment. The agents’ search uncovered about $2,700 in currency and three bank straps consistent with those used by the American Heritage Federal Credit Union. After discovery of the straps, Briggs was told that he was being detained and was read his Miranda rights.
Briggs was thereafter transported to the Plymouth Township Police Department, where he was again advised of his Miranda rights. Briggs signed a waiver form stating that he understood his rights and agreed to speak to the agents, and he then gave a detailed statement to the agents regarding his role in the bank robberies. Briggs also signed a typewritten record of his statement, including a verification that he was not coerced, threatened or promised anything to give the statement.
Thereafter, the agents executed the search warrant of his car and found a money wrapper under the driver’s seat, a *752green canvas bag consistent with one used during the robberies, and a demand note with the words “$10,000 Right Now; You got 1 min; No Dye; No Cops; No False Movement” written on it. App. at 14. The agents then interviewed Briggs a second time, again reading him his Miranda rights, which Briggs again waived in a signed writing. Briggs admitted that he wrote the demand note and that the bank straps found in his apartment came from the American Heritage Federal Credit Union robbery. After the interview, Briggs again signed a written record of his statement and verified that he was not coerced, threatened, or promised anything in exchange for his statement.
After two of his co-conspirators pled guilty, Briggs was ultimately charged in a Superseding Indictment with conspiracy to commit bank robbery in violation of 18 U.S.C. § 371 (Count 1), two counts of aiding and abetting bank robbery with a dangerous weapon in violation of 18 U.S.C. §§ 2113(d) and 2 (Counts 2 and 4), and two counts of aiding and abetting the use and carrying of a firearm in furtherance of a crime of violence in violation of 18 U.S.C. §§ 924(c)(1) and 2 (Counts 3 and 5). Briggs moved to suppress the physical evidence found at his apartment and in his car as well as his statements to the FBI agents, but the District Court denied suppression of that evidence after a hearing. The case proceeded to a jury trial, and the jury found Briggs guilty on all counts. The District Court then imposed a below-Guidelines sentence of 384 months and one day imprisonment.1
Briggs timely filed a notice of appeal. Appellate counsel was then appointed for Briggs, and counsel subsequently moved to withdraw, and filed a brief in support of that motion, pursuant to Anders. After Briggs filed a pro se brief in opposition to his counsel’s Anders motion, the Government filed a brief supporting counsel’s motion to withdraw and seeking to affirm the conviction and sentence.2
II.
“Where, upon review of the district court record, counsel is persuaded that the appeal presents no issue of even arguable merit, counsel may file a motion to withdraw and supporting brief pursuant to Anders ....” 3d Cir. L.A.R. 109.2 (2008). Accordingly, appellant’s counsel must “satisfy the court that he or she has thoroughly scoured the record in search of appeal-able issues” and then “explain why the issues are frivolous.” United States v. Marvin, 211 F.3d 778, 780 (3d Cir.2000) (citation omitted.). “The Court’s inquiry when counsel submits an Anders brief is thus twofold: (1) whether counsel adequately fulfilled [Third Circuit Local Appellate Rule 109.2’s] requirements; and (2) whether an independent review of the record presents any nonfrivolous issues.” United States v. Youla, 241 F.3d 296, 300 (3d Cir.2001).
*753Here, Briggs’ counsel has identified several potential non-frivolous issues and has concluded that all lack merit. First, counsel agrees that the District Court correctly rejected Briggs’ suppression motion. Both before the District Court and in his pro se brief to this court, Briggs has raised a number of challenges to the introduction of the physical evidence found in his home and car as well as his statements to the police.
As to the physical evidence, Briggs contends that the search warrants for his home and car were based on affidavits that included false information, that the warrant was not supported by probable cause and failed to state with sufficient particularity the items to be searched and seized, and that the evidence found in his home should be suppressed because the agents violated the knock-and-announce rule when they executed that warrant. These arguments lack merit. The District Court heard testimony regarding the affidavits of probable cause and concluded that Briggs failed to uncover any evidence of misrepresentations. The search warrants were supported by probable cause, particularly Postell’s statement to the investigators. Briggs points us to no evidence to the contrary. Briggs did not raise before the District Court his argument that the search warrants were invalid because they lacked a sufficient description of the items to be searched and seized, and therefore he has waived that argument. See United States v. Rose, 538 F.3d 175, 182 (3d Cir.2008). Briggs also contends that his trial counsel was ineffective for failing to raise this argument before the District Court, but that claim is not cognizable on this record on direct appeal. See United States v. Morena, 547 F.3d 191, 198 (3d Cir.2008). Finally, as to Briggs’ claim that the agents that executed the search warrant of his home violated the knock-and-announce rule, even assuming that they did so, suppression would not be appropriate. See Hudson v. Michigan, 547 U.S. 586, 126 S.Ct. 2159, 165 L.Ed.2d 56 (2006).
As to the suppression of his statements to the police, Briggs contends that the FBI agents lacked probable cause to arrest him following execution of the search warrant, that his statements were coerced, and that the police continued questioning him after he invoked his right to counsel. Briggs argues that he was seized without probable cause as soon as the agents entered his home, but the District Court credited the testimony of FBI Agent Kenneth Vincent that he told Briggs that he was free to leave during the execution of the search warrant and noted that Briggs conceded during his testimony at the suppression hearing that he was told at the beginning of the search that he was not under arrest. Briggs points us to nothing to undermine these findings. Moreover, we agree with the District Court that the agents had probable cause to arrest Briggs after the search of his home based on Postell’s earlier statement as well as the bank money straps and significant amount of cash found in Briggs’ home.
The record also demonstrates that Briggs was read his Miranda rights on three separate occasions and that he knowingly and voluntarily waived those rights and agreed to speak to the investigating agents, as evidenced by the two written waiver forms that he signed. Briggs argues that his statements were the result of coercion, but the District Court credited the testimony of one of the FBI agents who interviewed Briggs that the agents interviewing him did not makes any promises or threats to induce his statements. Again, Briggs offers nothing to undermine this finding.
Finally, Briggs contends that he told the investigating agents that he did *754not want to answer any questions until he found out if his mother obtained counsel for him, but they impermissibly continued to question him after that invocation of his right to counsel. However, the District Court did not credit Briggs’ testimony on this point, instead finding credible FBI Agent Andrew Lash’s testimony that Briggs never asked for an attorney. Moreover, we agree with the District Court that, even assuming that Briggs’ version of the events is accurate, Briggs’ statement was not a sufficiently clear and unambiguous invocation of his right to counsel so as to require the agents to cease questioning. See Davis v. United States, 512 U.S. 452, 461, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994) (“[A]fter a knowing and voluntary waiver of the Miranda rights, law enforcement officers may continue questioning until and unless the suspect clearly requests an attorney.”).
The remaining issues raised by Briggs (and noted by his appellate counsel) require little discussion. First, Briggs contends that the Government violated Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), by striking all four African-American members of the jury venire panel. However, the Government simply did not strike any African-American members of the panel, whether by peremptory challenge or for cause. There is no such evidence. Second, Briggs contends that the Government failed to prove beyond a reasonable doubt that the American Heritage Federal Credit Union was federally insured, as required for a conviction under 18 U.S.C. § 2113(f) on Count 2. However, the Government introduced records of the National Credit Union Administration showing that the credit union at issue was federally insured at the time of the bank robbery. Finally, we agree with Briggs’ appellate counsel that the sentence imposed by the District Court was reasonable. Indeed, the District Court imposed the mandatory minimum sentences for the weapons offenses and a substantially below-Guidelines sentence of one day on the conspiracy and bank robbery counts in light of the severity of the sentences on the weapons offenses.
III.
For the above-stated reasons, we will grant counsel’s motion to withdraw and affirm the judgment of conviction and sentence.
. Briggs was sentenced to a statutory mandatory minimum of seven years imprisonment on Count 3 pursuant to 18 U.S.C. § 924(c)(l)(A)(ii) and a statutory mandatory minimum of twenty-five years imprisonment on Count 5 pursuant to 18 U.S.C. § 924(c)(l)(C)(i). These sentences must run consecutively pursuant to 18 U.S.C. § 924(c)(l)(D)(ii). Briggs also faced a Guidelines sentencing range of 70 to 87 months for the conspiracy and bank robbery charges. (PSR ¶ 97.) In light of the length of imprisonment on the weapons offenses, the District Court, with the agreement of the Government, sentenced Briggs to one day imprisonment on those charges.
. The District Court had jurisdiction pursuant to 18 U.S.C. § 3231, and we have jurisdiction pursuant to 18 U.S.C. § 3742 and 28 U.S.C. § 1291.
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OPINION OF THE COURT
FISHER, Circuit Judge.
Dennis Freeman appeals the order of the District Court denying in part his motion for a reduction in sentence pursuant to 18 U.S.C. § 3582(c)(2). The District Court granted a sentence reduction based on an amendment to the Sentencing Guidelines for crack cocaine offenses, but denied Freeman an additional sentence reduction under United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Because Freeman’s interpretation of the Sentencing Guidelines and applicable policy statements was rejected by this court in United States v. Doe, 564 F.3d 305 (3d Cir.2009), we will affirm.
I.
We write exclusively for the parties, who are familiar with the factual context and legal history of this case. Therefore, we will set forth only those facts necessary to our analysis.
In 2002, Dennis Freeman pled guilty to one count of conspiracy to distribute crack cocaine base in violation of 21 U.S.C. § 846. At his sentencing hearing, the District Court determined that the base offense level for the distribution of 549.7 grams of crack cocaine was 36. This base level was increased by two levels for possession of a firearm in connection with the offense for a total offense level of 38. U.S.S.G. § 2Dl.l(b)(l). Freeman was also classified as a career offender under § 4B1.1 based on two prior felony drug convictions, which carried an offense level of 37. Because Freeman’s total offense level was greater than the career offender level, Freeman’s offense level for sentencing was based on the higher § 2D1.1 level *763of 38. Freeman’s offense level was then reduced by two levels for acceptance of responsibility under § 3El.l(a) for an adjusted offense level of 36. Freeman’s criminal history category was VI based on 13 criminal history points.
At the sentencing hearing, Freeman asked the District Court for an additional one-level reduction for timely acceptance of responsibility under § 3El.l(a), and a downward departure under § 4A1.3 on the grounds that the criminal history category overrepresented his criminal record. The District Court granted these motions, bringing Freeman’s adjusted offense level to 35 and his criminal history category to V. The District Court then sentenced Freeman to a 270 month term of imprisonment, on the lower end of the 262 to 327 month range set by the Guidelines.
Effective November 1, 2007, Amendment 706 to the Guidelines reduced by two levels the offense levels applicable to crack cocaine offenses. The Commission designated the amendment for retroactive application. U.S.S.GApp. C., Amend. 713.
On April 15, 2008, Freeman filed a Motion to Modify Terms of Imprisonment pursuant to 18 U.S.C. § 3582(c)(2) based on Amendment 706. The District Court determined that, accounting for the two-level reduction provided by Amendment 706 and the two-level increase for possession of a firearm, Freeman’s amended base offense level was 36. Because the base offense level was now less than the career offender level of 37, the Court followed the mandate of § 4B1.1 that the sentence be based on Freeman’s career offender level. After applying the original three-level reduction for timely acceptance of responsibility, Freeman’s amended offense level was 34 and his criminal history category was V, making the guideline sentence range 235 to 293 months. The District Court sentenced Freeman to a 235 month term of imprisonment. This timely appeal followed.
II.
The District Court had jurisdiction over Freeman’s criminal prosecution under 18 U.S.C. § 3231 and jurisdiction to adjudicate Freeman’s motion for a reduction of sentence pursuant to 18 U.S.C. § 3582(c)(2). We have appellate jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
We exercise plenary review of the District Court’s interpretation of the Sentencing Guidelines, but review the District Court’s ultimate decision to grant or deny a motion to reduce sentence under 18 U.S.C. § 3582(c) for abuse of discretion. United States v. Mateo, 560 F.3d 152, 154 (3d Cir.2009).
III.
A.
Freeman argues that the District Court was not bound by the policy statement in § 1B1.10 to apply a sentence within the Guidelines for his career offender level because the Supreme Court’s decision in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), rendered all of the Sentencing Guidelines advisory. This argument misunderstands the impact of Booker on a motion for a reduction in sentence under § 3582(c)(2).
In most cases, a district court may not grant a reduction in sentence after it has been imposed. United States v. Wise, 515 F.3d 207, 220 (3d Cir.2008). Congress has, however, granted district courts the authority to reduce sentences after they are imposed if the sentence is based on a Guideline range that is later reduced by the Sentencing Commission. 18 U.S.C. § 3582(c)(2). This authority is constrained by the requirement that “such a reduction *764is consistent with applicable policy statements issued by the Sentencing Commission.” Id.
The Sentencing Guidelines policy statement provides that when a district court is considering a motion to reduce a defendant’s sentence pursuant to 18 U.S.C. § 3582(c), the court must determine the amended guideline range and substitute only the amended guideline provision, leaving all other guideline applications decisions unaffected. See U.S.S.G. § lB1.10(b)(l). The policy statement further provides that a defendant’s sentence may not be reduced “to a term that is less than the minimum of the amended guideline range determined under subdivision (1).” Id. § lB1.10(b)(2)(A).
Freeman argues that the District Court could have ignored his career offender offense level and sentenced him under his new adjusted base offense level. Freeman further asserts that the Court could have reduced his sentence to a term even less than the range set by the Guidelines. While Freeman does not contend that such a result comports with § 1B1.10, he argues that the policy statement is only advisory in light of Booker.
In United States v. Doe, 564 F.3d 305 (3d Cir.2009), we rejected the argument that Booker rendered the policy statement in § 1B1.10 advisory. Instead, we held that “[ujnder the express statutory language of § 3582(c)(2) and § 994(u), the Commission’s policy statements implementing retroactive sentence reduction are binding.” Id. at 310. We reasoned that holding the policy statements mandatory does not conflict with Booker because neither Bookeds Sixth Amendment constitutional holding, nor its remedial holding striking down the statutory provisions that made the Sentencing Guidelines mandatory, are implicated by a proceeding under § 3582(c)(2). Id. at 312-14.
Under § 1B1.10 a district court may only substitute amended guidelines provisions and must leave all other guideline application decisions unaffected. While the crack cocaine offense level was lowered by two levels, the career offender provisions of § 4B1.1 remain in force. The District Court was therefore required to apply the career offender level exactly as it had at the original sentencing hearing. When the District Court accounted for the amended crack cocaine offense level of 36, the higher career offender level of 37 became the applicable sentencing level under § 4B1.1. Accordingly, the District Court was required by § 1B1.10 to sentence Freeman based on his career offender level.
The District Court was also correct that it could only reduce Freeman’s sentence as far as the lower end of the guidelines range for his career offender level. The § 1B1.10 policy statement is clear that a defendant’s sentence may not be reduced “to a term that is less than the minimum of the amended guideline range.” U.S.S.G. § lB1.10(b)(2)(A). As discussed above, Freeman’s amended guideline range is set by his career offender level. Accounting for the three-level reduction from the original sentencing, Freeman’s adjusted career offender level was 34, carrying a minimum sentence of 235 months. Because Freeman’s amended sentence was 235 months, the District Court appropriately denied Freeman’s motion for a further reduction in sentence.
B.
For the first time in his reply brief, Freeman contends that the career offender Guideline provisions, § 4B1.1, cannot be applied to him because at his initial sen*765tencing the District Court reduced his criminal history category from VI to V, thus making him ineligible for career offender status.1
Section 4Bl.l(a)-(b) defines the requirements for career offender status and states, “[a] career offender’s criminal history category in every case under this subsection shall be Category VI.” Freeman argues that § 4B1.1 means that a criminal history category of VI is required in order to be sentenced as a career offender. The inverse is actually true. Once a defendant is deemed a career offender, his criminal history category must be set to VI. The District Court’s decision to grant a downward departure to category V therefore does not eliminate Freeman’s status as a career offender because being in category VI is a result of, and not a prerequisite to, career offender status. We therefore reject Freeman’s argument that he cannot be sentenced under his career offender level as required by § 4B1.1.
IV.
For the foregoing reasons, we will affirm the order of the District Court.
. We note, "It is well settled that an appellant's failure to identify or argue an issue in his opening brief constitutes waiver of that issue on appeal.” United States v. Pelullo, 399 F.3d 197, 222 (3d Cir.2005).
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OPINION OF THE COURT
RENDELL, Circuit Judge.
Anton Suharso and his wife, Yunita Wulansari, petition for review of an order of the Board of Immigration Appeals (“BIA”) denying their application for asylum and withholding of removal. The facts in this case reflect a familiar pattern: Christian Indonesians of Chinese descent alleging persecution by Muslim Indonesians. The Immigration Judge (“IJ”) concluded, and the BIA agreed, that the intimidation and harassment alleged by petitioners — including an episode in which a gang of Muslims assaulted Suharso with a knife — were not sufficiently severe to constitute persecution. Because we agree that petitioners neither suffered past persecution nor possess a well-founded fear of future persecution on account of their religion or ethnicity, we will deny the petition for review.
Suharso and his wife, Wulansari, are natives and citizens of Indonesia, and are ethnically Chinese Catholics. At the hearing on their application for asylum and withholding of removal, Suharso testified that he suffered verbal harassment and was frequently “stopped or attacked” by Indonesian Muslims, and that, on one occasion in March 2002, a gang of Muslims confronted him on his walk to church, seized and stomped his prayer book, and cut him with a knife — incidents that failed to deter Suharso from attending church. A. 111.
Suharso’s experience reflected a wider pattern of aggression toward Chinese Christians by elements of the Muslim community between 2000 and 2002. During that period, Suharso testified that radical Muslims regularly targeted churches: bomb attacks and bomb threats against churches “happened] everywhere.” A. 116. An expert retained by petitioners, Dr. Jeffrey Winters, corroborated Suharso’s testimony, indicating that on Christmas Eve in 2000, unknown terrorists *767bombed or attempted to bomb 84 Christian churches in 10 cities. Episodic rioting, involving attacks on Chinese homes and businesses, continued thereafter in different parts of the country. These attacks, Winters stressed, reflected longstanding animus toward Chinese Christians, perceived as unwelcome outsiders. Winters also described an array of discriminatory laws enforced against ethnically Chinese Indonesians.
Government efforts to stem religious and ethnic violence have had mixed results. Winters opined that the Indonesian government, which has a “severely degraded” legal and security apparatus, has had difficulty controlling fanatical fringes, which continue to terrorize Chinese Christians. A. 221. Suharso testified that his church, for example, was forced to close after the government was unable to protect congregants against Muslim extremists. A second expert retained by petitioners, Jana Mason, noted that crimes against Chinese Christians are rarely prosecuted, and that a “significant risk” of ethnic violence has remained since 1998 — the last wave of nationwide looting and rioting-— reflecting the government’s inability to stem the “growing militancy of Islam.” A. 233-34.
One month after his assault at knife-point, Suharso and his wife celebrated their honeymoon in the United States. Suharso explained that, “at first it was our intention [to come to the United States] for honeymooning (sic),” but, after touring the country, “we felt the situation in here, we do not want to return.” A. 126. After immigration officials discovered that petitioners overstayed their visas, removal proceedings were initiated. Petitioners conceded their removability but sought asylum and withholding of removal.1 The IJ determined, and the BIA agreed, that Suharso offered credible testimony that he suffered persistent harassment and threats on the basis of his religion and ethnicity, but that the indignities endured, including Suharso’s assault in March 2002, fell short of “persecution” under the applicable law.2 Accordingly, the BIA affirmed the IJ’s decision that petitioners were ineligible for asylum and withholding of removal.3
On appeal, Suharso makes two arguments — that his due process rights were *768violated when the BIA failed to make an individualized determination of his eligibility for asylum and withholding of removal;4 and that the BIA’s conclusion that he lacked a well-founded fear of persecution was unsupported by substantial evidence.
We easily dispose of Suharso’s first argument, finding “sufficient indicia” that the BIA gave “particularized consideration” to his arguments and evidence. Abdulai v. Ashcroft, 239 F.3d 542, 550 (3d Cir.2001). The BIA considered — and rejected — Suharso’s twin contentions — that the harassment that he endured rose to the level of persecution, and that the IJ failed to consider Winters and Mason’s affidavits. In a succinct analysis, the BIA concluded that the fact that Suharso’s family continued to reside in Indonesia undermined his claim of persecution, that the IJ adequately addressed Winters’ affidavit, and that the IJ’s alleged failure to consider Mason’s affidavit was not prejudicial. In Abdulai v. Ashcroft, we approved a similar analysis by the BIA and rejected petitioner’s due process claim. Id. We thus dismiss Suharso’s constitutional challenge as meritless.
Suharso’s second argument — that the BIA erroneously concluded that he had not suffered past persecution — also fails.5 Although the BIA credited Suharso’s accounts of extremist attacks on Christian churches, his assault in March 2002, and persistent harassment on account of his religion and ethnicity, the BIA properly concluded that these isolated criminal acts were not sufficiently egregious to constitute “persecution” — a term that we have narrowly defined as “threats to life, confinement, torture, and economic restrictions so severe that they constitute a threat to life or freedom.” Lie v. Ashcroft, 396 F.3d 530, 536 (3d Cir.2005) (quoting Fatin v. INS, 12 F.3d 1233, 1240 (3d Cir.1993)). We believe that our recent decision in Lie v. Ashcroft, addressing similar facts, forecloses petitioners’ argument. Id.
In Lie, we considered whether religiously and ethnically motivated violence more severe than that directed at Suharso constituted persecution. Id. There, the peti*769tioner, a Chinese Christian, asserted a well-founded fear of persecution on account of her religion and ethnicity if removed to Indonesia. Petitioner had left Indonesia in the wake of a nationwide wave of ethnic violence that shook the country in 1998. During this tumultuous period, which witnessed serious and widespread attacks on Chinese-owned businesses and homes, thousands of Chinese were killed, raped, or beaten, and their homes, looted and torched. Petitioner was an unfortunate victim of this violence. In 1997, at the very outset of the turmoil, Muslim Indonesians entered her husband’s store and, shouting “Chinese pig,” robbed petitioner’s husband at knife-point. Several months later, two intruders knocked down the door of petitioner’s home, demanding money. Calling petitioner a “Chinese pig” and threatening to burn down her house, the assailants seized her money and jewelry and, when petitioner attempted to defend herself, slashed her left forearm with a knife; the resulting laceration required several stitches. Two years later, in March 2000, petitioner left Indonesia. The BIA concluded, and we agreed, that the acts of robbery and violence directed at petitioner, “while unfortunate and troubling,” fell short of “persecution.” Id. at 586. Adopting the holdings of two other courts of appeals, we stated, “We agree with the Ninth and Tenth Circuits that Lie’s account of two isolated criminal acts, perpetrated by unknown assailants, which resulted only in the theft of some personal property and a minor injury, is not sufficiently severe to be considered persecution.” Id. at 536.
Lie strongly supports our conclusion that the violence directed at Suharso does not rise to the level of persecution. Lie makes clear that verbal harassment, and isolated criminal acts resulting in minor injuries or property damage, do not rise to the level of persecution. Further, courts have distinguished legal discrimination from persecution.6 The most significant act of retaliation identified by Suharso — an altercation with Muslim gang members in which his forearm was cut and his prayer book destroyed — was less severe than the repeated acts of violence visited upon Lie and her husband, whose homes and businesses were ransacked, who were twice robbed, beaten, and knifed, and who were told that their home would be torched. And, although some evidence suggests a resurgence of religious violence — specifically, bombings, or threats to bomb, Christian churches — Winters explained that 1998 represented an even more dangerous period for Chinese Christians.7 Because we determined in Lie that the conditions in Indonesia in 1998 did not rise to the level of persecution, the BIA properly found that the smaller, ensuing wave of religious violence did not entitle Suharso to relief.
We also agree with the BIA that Suharso did not demonstrate a well-founded fear of future persecution — a requirement satisfied by proof that the petitioner was individually singled out for persecution, or that a pattern or practice of persecution against similarly situated individuals exists.8 Analyzing the former avenue— whether an individualized risk of persecution exists — the BIA initially credited Su*770harso’s testimony that, after his arrival in the United States, his family received death threats, that his church was demolished by Muslim radicals, and that his home was periodically peppered with rocks. The BIA emphasized, however, that Suharso’s family, who was never harmed, stayed in Indonesia.9 The BIA also observed that Suharso’s prior assault was a “random act of violence by street hoodlums” — not an attack directed at him in particular. A. 69. On this record, the BIA concluded — quite appropriately — that Suharso failed to establish an individualized risk of persecution if he returned to Indonesia. See Lie, 396 F.3d at 537 (requiring proof that asylum applicant had been “singled out” for persecution). Because Suharso has failed to adduce evidence on appeal “so compelling” that no reasonable factfinder could fail to find that he faced a particularized risk of persecution, we will not disturb the BIA’s determination of this issue. Id. at 534 n. 3.
Alternatively, Suharso seeks relief based on a pattern or practice of persecution against Chinese Christians. In rejecting petitioner’s argument, the BIA discounted Winters’ affidavit, which identified a risk of renewed violence toward Chinese Christians, underscored the government’s inability to control Muslim radicals, and noted the inadequate prosecution of crimes perpetrated against Chinese Christians. The BIA credited, instead, a State Department report indicating a general reduction in ethnic and religious violence. The BIA also found that the Indonesian government had neither perpetrated nor acquiesced to violence against Chinese Christians, but rather strove to reduce ethnic tensions— efforts that Suharso himself acknowledged at the removal hearing. Mason noted, moreover, that the Indonesian government had begun to repeal discriminatory laws targeting ethnically Chinese Indonesians.
On appeal, Suharso asserts, however, that ethnic and religious violence escalated, rather than subsided, after 2002. Suharso cites the 2005 International Religious Freedom Report, indicating a doubling in the number of churches attacked over the prior year. Suharso also stresses that a recent State Department report found continued legal discrimination against Chinese Christians, who encounter numerous roadblocks in registering marriages, divorces, and births. Suharso maintains that the BIA erred in giving short-shrift to these reports and to Mason and Winters’ affidavits, which suggested a continued risk of ethnic and religious violence.
Notwithstanding Mason and Winters’s affidavits, we find substantial evidence to support the BIA’s conclusion that there is no widespread pattern or practice of persecution of Chinese Christians, and that the Indonesian government has not condoned or acquiesced to attacks by private actors. To the contrary, the State Department Country Report noted a significant drop in violence towards Chinese Christians and improved respect for religious freedom. Although the Report suggested that the government occasionally tolerated hostilities toward Chinese Christians, it also noted that the government made “significant efforts to reduce inter-religious violence.” A. 177.10 The State *771Department Country Report on Human Rights Practices of 2005 found, similarly, that “Police made stronger efforts to investigate, arrest, and prosecute” acts of religious violence.11 A. 186. Although the report noted that police, which lacked adequate resources, often failed to stop closures of churches, most closures were temporary. Suharso also testified that the government attempted in good-faith, albeit unsuccessfully, to prevent the closure of his local church and to protect congregants from extremist violence at other houses of worship. Hence, as we recently observed in Wong v. Att’y Gen., “[E]ach of the other circuits to address the issue has declined to find a pattern or practice of persecution of Christian Indonesians of Chinese descent.” 589 F.3d 225, 234 (3d Cir.2008) (internal citations omitted). On this record, we cannot say that the evidence is “so compelling that no reasonable factfinder could fail to find the alien eligible for asylum or withholding of removal.” Lie, 396 F.3d at 534 n. 3.
Our conclusion that Suharso does not face a well-founded risk of future persecution is buttressed by our opinion in Lie. There, as discussed, we considered whether the petitioner faced a risk of future persecution in the wake of a wave of ethnic and religious violence — a pandemic that, Winters acknowledged, was more lethal and more widespread than the more recent period of turmoil. Despite the virulence of the 1998 attacks, which we noted produced “significant violence and rioting against individuals of Chinese origin throughout Indonesia,” culminating in the deaths of over one thousand people, id. at 533, we agreed with the BIA that the petitioner failed to establish a pattern or practice of persecution of Chinese Christians. Because the climate has improved — not worsened — -since 1998, we agree with the BIA that Suharso has failed to demonstrate a risk of future persecution on account of his religion or ethnicity.12 Accordingly, we conclude that the BIA properly denied petitioners’ application for asylum and withholding of removal.
For the foregoing reasons, we will deny the petition for review.
. Specifically, Suharso applied for asylum and withholding of removal; Wulansari is a derivative applicant for asylum and also seeks withholding of removal.
. We have jurisdiction to review a final order of removal under 8 U.S.C. § 1252. See Briseno-Flores v. Att'y Gen., 492 F.3d 226, 228 (3d Cir.2007). Where the BIA substantially adopts the findings of the IJ, as the BIA did here, we review the decisions of both the IJ and the BIA. He Chun Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir.2004).
. Under INA § 208(b), the Attorney General has the discretion to grant asylum to “refugees.” 8 U.S.C. § 1158(b). Section 101(a)(42)(A) of the INA defines a "refugee” as a person unable to return to her country of “nationality ... because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion....” 8 U.S.C. § 1101(a)(42)(A). The alien bears the burden of proof of establishing that he is a refugee and that he has suffered past persecution or has a well-founded fear of persecution. See 8 C.F.R. § 1208.13(a). If past persecution is established, then the asylum applicant is presumed to have a well-founded fear of persecution. See 8 C.F.R. § 1208.13(b)(1). If the alien cannot show past persecution, he may still establish a well-founded fear of future persecution by demonstrating a subjective fear of persecution, and that a reasonable person in the alien’s circumstances would fear persecution if returned to the country in question. Zubeda v. Ashcroft, 333 F.3d 463, 469 (3d Cir.2003).
To establish entitlement to withholding of removal under section 241(b)(3) of the INA, 8 U.S.C. § 1231(b)(3), the alien must demonstrate a "clear probability” of persecution through the presentation of evidence that it is more likely than not that he would be subject *768to persecution if deported. See Mulanga v. Ashcroft, 349 F.3d 123, 132 (3d Cir.2003). This is a more demanding standard than the standard for asylum, and, therefore, an alien who fails to establish his eligibility for asylum "necessarily fails to meet the standard of withholding of removal under INA § 241(b)(3).” Lukwago v. Ashcroft, 329 F.3d 157, 182 (3d Cir.2003).
. Although the federal Constitution does not guarantee a right to asylum, aliens facing removal are entitled to due process. See Sewak v. INS, 900 F.2d 667, 671 (3d Cir.1990). “The fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner." Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976) (quotation marks and citation omitted). In removal proceedings, due process has three elements. Abdulai v. Ashcroft, 239 F.3d 542, 550 (3d Cir.2001). An alien: "(1) is entitled to factfinding based on a record produced before the decisionmaker and disclosed to him or her; (2) must be allowed to make arguments on his or her own behalf; and (3) has the right to an individualized determination of his [or her] interests.” Id. (internal citations omitted). Petitioners focus solely on the third element, urging that the BIA did not render an individualized determination of their applications for asylum and withholding of removal.
. We must uphold the BIA's factual findings if they are "supported by reasonable, substantial, and probative evidence on the record considered as a whole.” INS v. Elias-Zacarias, 502 U.S. 478, 480, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). We will conclude substantial evidence is lacking only where the evidence “was so compelling that no reasonable factfinder could fail to find the alien eligible for asylum or withholding of removal.” Id. at 483-84, 112 S.Ct. 812; see Lie v. Ashcroft, 396 F.3d 530, 534 n. 3 (3d Cir.2005).
. Sombah v. Mukasey, 529 F.3d 49, 51 (1st Cir.2008) (“Discrimination in Indonesia does not, without more, qualify a Christina Indonesian national for asylum.”); Pulisir v. Mukasey, 524 F.3d 302, 308-309 (1st Cir.2008); Kho v. Keisler, 505 F.3d 50, 58 (1st Cir.2007); Susanto v. Gonzales, 439 F.3d 57, 59-60 (1st Cir.2006).
. Winters observed, “[T]here has been no massive upsurge of violence against the ethnic Chinese on the scale seen in 1998." A. 221.
. Sukwanputra v. Gonzales, 434 F.3d 627, 637 (3d Cir.2006); see 8 C.F.R. § 208.13(b)(2)(iii)(A).
. Lie, 396 F.3d at 537 (noting that "when family members remain in petitioner's native country without meeting harm,” the "reasonableness of a petitioner's well-founded fear of future persecution is diminished”); see Krasnopivtsev v. Ashcroft, 382 F.3d 832, 839 (8th Cir.2004); Hakeem v. INS, 273 F.3d 812, 816 (9th Cir.2001).
. See Kayembe v. Ashcroft, 334 F.3d 231, 236 (3d Cir.2003) (noting that just because "the State Department report cuts both ways ... does not mean that it does not constitute substantial evidence”).
. We have previously observed that the State Department Country Report of 2005 reflects improved treatment of Chinese Christians in Indonesia and a reduction in ethnic tensions. See Wong v. Att’y Gen., 539 F.3d 225, 234 (3d Cir.2008) (noting that State Department Country Report of 2005 documents improved treatment of Chinese Christians in Indonesia); Budiono v. Mukasey, 548 F.3d 44, 46 (1st Cir.2008) (finding that the State Department Country Report of 2005, indicating a decrease in discrimination and harassment of ethnic Chinese, undercuts petitioner's assertion of a pattern and practice of discrimination against Chinese Christians in Indonesia).
. See Yunaidi v. Att’y Gen., 324 Fed.Appx. 762, 764-65 (11th Cir.2009) (unpublished) (rejecting petitioner’s contention that the 1998 wave of ethnic violence, which resulted in destruction of petitioner’s church and family business and forced the petitioner to flee, rose to the level of persecution).
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OPINION
WEIS, Circuit Judge.
Defendant pleaded guilty to possession with intent to distribute cocaine and cocaine base in violation of 21 U.S.C. § 841(a). In determining the applicable sentencing guideline, the District Court found that defendant had distributed cocaine base in excess of 4.5 kilograms. Although the pre-sentence investigation report resulted in a Guideline range of 262 to 327 months’ incarceration, that range was lowered to 240 months, the statutory maximum. Responding to the government’s motion to a downward departure and in consideration of the defendant’s ongoing and substantial cooperation, the Court imposed a sentence of 139 months imprisonment and a three-year period of supervised release.
Defendant contends that, in finding the amount of cocaine involved, the Court erred by using evidence that he supplied in a proffer. The government asserts that it had independent sources for determining the amount of illegal drugs, including information provided by confidential informants before the defendant’s arrest, as well as statements defendant made to the police before entering into the plea agreement. We have carefully reviewed the sentencing proceedings, including the transcript of the hearing, and conclude that the District Court did not err in finding that the quantity of illegal drugs was calculated based on evidence independent of the proffer and was, therefore, properly used in determining the sentence. See United States v. Grier, 475 F.3d 556, 570 (3d Cir.2007) (en banc) (“this Court ... review[s] factual findings relevant to the Guidelines for clear error and ... exercisefsj plenary review over a district court’s interpretation of the Guidelines”); see also U.S.S.G. § lB1.8(b)(l) (“The provisions of subsection (a) [stating that self-*773incriminating information provided pursuant to plea agreement cannot be used in determining guideline range] shall not be applied to restrict the use of information [ ] known to the government prior to entering into the cooperation agreement”) (emphasis added).
We also conclude that the District Court gave “meaningful consideration” to the 18 U.S.C. § 3553 factors and applied them reasonably to the circumstances of this case. See United States v. Lessner, 498 F.3d 185, 203-04 (3d Cir.2007) (holding that a sentence is procedurally reasonable where the district court demonstrates “meaningful consideration of the factors set forth at 18 U.S.C. § 3553(a)” and substantively reasonable where it applies those factors “reasonably to the circumstances of the case”).
Accordingly, we will affirm the Judgment of the District Court.
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OPINION OF THE COURT
FISHER, Circuit Judge.
Joseph M. Lutz and Cindy Lutz (the “Lutzes”) appeal from an order of the District Court granting a motion to dismiss filed by Philips Electric North America (“Philips”) and Metlife for failure to comply with the applicable statute of limitations. We will affirm.
I.
We write exclusively for the parties who are familiar with the factual context and legal history of this case. Therefore, we will set forth only those facts necessary to our analysis.
Joseph M. Lutz began his employment with Philips on August 2, 2001.1 Shortly thereafter, Mr. Lutz was hospitalized and underwent back surgery. After exhausting his twenty-six weeks of short-term disability benefits, Mr. Lutz applied and was approved for long-term disability benefits under a Long Term Disability Plan offered by Phillips and administered by Metlife. The terms and methodology of benefit calculation were included in Mr. Lutz’s notification of benefits. According to the Lutzes’ complaint, Mr. Lutz noticed an “incorrect calculation of his long term disability benefits” and accordingly complained to Philips and Metlife on “repeated occasions beginning [on] August 23, 2002.” (App.16). The Lutzes filed suit in state court on August 6, 2007, alleging negligence and breach of contract arising out of the underpayment of benefits under the disability plan. Philips and Metlife removed the case to the District Court on the basis of ERISA preemption of the state law claims. The District Court entered an order dismissing the suit with prejudice on August 20, 2008, 2008 WL 3914840, for failure to comply with the applicable statute of limitations. This timely appeal followed.
II.
We exercise plenary review of the District Court’s grant of a motion to dismiss. Maio v. Aetna, Inc., 221 F.3d 472, 481 (3d Cir.2000). The District Court had jurisdiction under 28 U.S.C. § 1331. We have jurisdiction over the District Court’s order under 28 U.S.C. § 1291.
III.
The Lutzes argue that the District Court erred in granting the defendants’ motion to dismiss because it applied the incorrect statute of limitations to their claim, which both parties agree is governed by ERISA. The Lutzes also argue *776that the District Court erred in denying their motion for leave to amend their complaint to include a claim for breach of fiduciary duty.
A.
The Lutzes originally brought claims against Phillips and Metlife for negligence and breach of contract stemming from underpayment of benefits from the Long Term Disability Plan offered by Phillips and administered by Metlife. As the District Court held, these state law claims are preempted by ERISA. 29 U.S.C. § 1144(a); Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 47-48, 107 S.Ct. 1549, 95 L.Ed.2d 39 (1987). Therefore, the statute of limitations applicable to the Lutzes’ claims is governed by ERISA.
ERISA grants beneficiaries of benefit plans the ability to recover benefits due, enforce rights under the plan, or clarify a right to future plan benefits under 29 U.S.C. § 1132(a)(1)(B). Section 1132 does not contain its own statute of limitations, so this Court has previously looked to the statute of limitations for the most analogous state law claim in order to determine the appropriate limitations period. See, e.g., Gluck v. Unisys Corp., 960 F.2d 1168, 1179 (3d Cir.1992). “The statutory limitation most applicable to a claim for benefits under Section 1132(a)(1)(B) is a breach of contract claim. In Pennsylvania, a breach of contract claim has a statute of limitations of four years.” Hahnemann Univ. Hosp. v. All Shore, Inc., 514 F.3d 300, 305-06 (3d Cir.2008) (citing 42 Pa. Cons.Stat.Ann. § 5525(a)(8)). Thus, the relevant statute of limitations in this case is four years.
The Lutzes argue that the statute of limitations did not begin to run on their underpayment claims until the date “in-house counsel for MetLife acknowledged the inaccurate benefit calculation.” (Lutz Bl. Br. at 14). This argument is contrary to law.
The “statute of limitations begins to run when a plaintiff discovers or should have discovered the injury that forms the basis of his claim.” Miller v. Fortis Benefits Ins. Co., 475 F.3d 516, 520 (3d Cir.2007). We also held in Miller that a cause of action for unpaid benefits accrues when there has been “a repudiation of the benefits by the fiduciary which was clear and made known [to] the beneficiary.” Id. at 520-21. Underpayment of a benefit constitutes a repudiation of full benefits and triggers the statute of limitations. Id. at 521 (“[A]n underpayment can qualify as a repudiation because a plan’s determination that a beneficiary receive less than his full entitlement is effectively a partial denial of benefits. Like a denial, an underpayment is adverse to the beneficiary and therefore repudiates his rights under a plan.”).
Under our reasoning in Miller, the Lutzes’ ERISA claim accrued on August 23, 2002, when the Lutzes began their “repeated” complaints about the incorrect calculation of benefits. Though the Lutzes argue that the statute of limitations does not run until a party has or should have discovered the injury, there can be no question that the Lutzes had “discovered the injury that forms the basis of [their] claim” as of the date they first brought that injury to the attention of Philips and Metlife.2 Id. at 520. The Lutzes’ four-year statute of limitations for bringing suit for underpayment of disability benefits thus expired on August 23, 2006, nearly a year *777prior to the filing of this suit on August 6, 2007.
The Lutzes further propose that, even if a four-year statute of limitations applies to their claims, principles of equitable estoppel should permit them to proceed in the face of that limitation. The Lutzes contend that Philips and Metlife should be estopped from asserting the statute of limitations as a defense because the Lutzes relied on alleged misrepresentations made by Philips and Metlife concerning whether the benefits were correctly calculated. Purportedly as a result of these misrepresentations, the Lutzes did not file suit within the applicable statute of limitations.
A plaintiff seeking equitable relief from a statute of limitations must establish (1) a material misrepresentation or fraudulent concealment, (2) reasonable and detrimental reliance upon the misrepresentation or concealment, and (3) extraordinary circumstances. Pell v. DuPont, 539 F.3d 292, 300 (3d Cir.2008). When equitable estoppel is established, “the statute of limitations is tolled until the plaintiff knew or using reasonable diligence should have known of the claim.” Bohus v. Beloff, 950 F.2d 919, 925-26 (3d Cir.1991).
Without engaging whether Philips or Metlife made any material misrepresentations, the Lutzes’ equitable estoppel argument must fail. A defendant is only estopped from asserting a statute of limitations defense when its conduct “would divert or mislead the plaintiff from discovering the injury.” Id. at 925. As we have already observed, the Lutzes discovered their injury as of August 23, 2002. A successful equitable estoppel argument cannot toll the statute of limitations beyond the date of a plaintiffs actual knowledge of the injury giving rise to his claim. Id. at 925-26.
Because the Lutzes’ suit was not filed within the four-year period set by the statute of limitations, the District Court correctly held that it was barred by the four-year statute of limitations.
B.
Finally, the Lutzes argue the District Court erred in refusing to grant them leave to amend their complaint to include a claim for breach of fiduciary duty under 29 U.S.C. § 1132(a)(1)(B). Although leave to amend a complaint under Rule 15(a) should be liberally granted, we have held that such leave should not be permitted where an amendment to the complaint would be futile. See Jordan v. Fox, Rothschild, O’Brien & Frankel, 20 F.3d 1250, 1278 (3d Cir.1994).
The ERISA provision authorizing actions to recover for “a fiduciary’s breach of any responsibility, duty, or obligation” contains an explicit statute of limitations. 29 U.S.C. § 1113. Such actions must be filed within “three years after the earliest date on which the plaintiff had actual knowledge of the breach or violation. ...” Id. The Lutzes claim that they were injured by the alleged breach of fiduciary duty in the form of underpayment of benefits. As discussed above, the Lutzes had actual knowledge of this alleged breach as of August 23, 2002, when they first complained of the underpayment. The three-year statute of limitations for filing the breach of fiduciary duty action thus expired on August 23, 2005, nearly two years before this action was filed on August 6, 2007. Therefore, the District Court correctly held that an amendment to the complaint alleging breach of fiduciary duty would have been futile.
IV.
For the foregoing reasons, we will affirm the order of the District Court.
. Mr. Lutz was initially hired as an employee of Agilent Technologies, which was subsequently acquired by Philips. Philips acknowledges in its brief that, for purposes of this appeal, Mr. Lutz's employment with Philips dates back to his initial employment with Agilent. (Philips Br. at 4-5).
. The Lutzes also suggest that the question of when the injury was discovered is a question of fact that must be resolved by a jury. (Lutz Bl. Br. at 14). Because the Lutzes' own corn-plaint established that they knew of their injury more than four years before they filed suit, the District Court appropriately found no factual dispute left for jury determination.
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OPINION OF THE COURT
FISHER, Circuit Judge.
Kaleel Wilson appeals from the District Court’s conviction by a jury and sentence, arguing that the District Court (1) abused its discretion in refusing to give an accomplice witness jury instruction requested by the defendant and (2) committed plain error in imposing a five-year mandatory minimum term of imprisonment under 18 U.S.C. § 924(c), to run consecutively with a ten-year mandatory minimum term of *779imprisonment under 21 U.S.C. § 841(b)(1)(B). We will affirm.
I.
We write exclusively for the parties, who are familiar with the factual context and legal history of this case. Therefore, we will set forth only those facts necessary to our analysis.
Kaleel Wilson was stopped by Philadelphia Police while speeding on the night of July 5, 2007. Officers Jared Netzer and Ryan Murphy observed three men in the van: Wilson in the driver’s seat, Baba Tunkara in the front passenger seat, and co-defendant Nafice Fields in the backseat. After seeing a fully loaded nine-millimeter semi-automatic handgun under the seat near Fields, Officer Murphy ordered him out of the van and placed him under arrest. Officer Murphy ordered both Wilson and Tunkara out of the vehicle, and Officer Murphy subsequently found a loaded .857 magnum handgun in Tunkara’s left front pocket. Tunkara told police that just before the police stopped the van, Wilson demanded that Tunkara hold the gun. Officer Netzer searched Wilson and found $1,388 in Wilson’s right front pocket. Police then searched the van and found 16.4 grams of crack cocaine in 115 small baggies in the roof liner above the driver’s sun visor.
Police arrested and charged Wilson, Fields, and Tunkara with state drug and weapons offenses. Subsequently, a federal grand jury indicted Wilson and charged him with possession with intent to distribute five or more grams of cocaine base, in violation of 21 U.S.C. § 841(a)(1); possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1); and possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c). The same federal indictment also charged Fields with one count of possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). The federal indictment did not charge Tunkara.
At trial, Tunkara testified consistent with his earlier statement to police that Wilson had demanded that Tunkara hold the gun. At the time of his testimony, Tunkara still faced state drug and weapons charges stemming from the incident and also had an application pending for United States citizenship. Wilson explored these points extensively on cross-examination. Two months after his testimony against Wilson, Tunkara pled guilty to a state count of possession of an unlicensed firearm and received a sentence of five-years probation pursuant to a negotiated plea. At the plea hearing, the United States informed the state court judge of Tunkara’s cooperation with federal authorities.
At the District Court’s charging conference, Wilson did not ask the District Court to give an accomplice witness instruction and never provided a written request for the instruction. Rather, Wilson’s attorney called the Judge’s chambers the morning after the charging conference and requested an accomplice witness instruction. The District Court refused to give the instruction, citing the lack of a written proposed instruction, the fact that Tunkara was not charged federally, and stating that Wilson could challenge Tunkara’s credibility before the jury.
Following conviction on all counts, the District Court sentenced Wilson to a mandatory minimum term of imprisonment of ten-years for possession of cocaine base with intent to distribute in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B), and a consecutive mandatory minimum term of imprisonment of five-years for carrying a firearm in relation to the drug trafficking crime, in violation of 18 U.S.C. § 924(c).
Wilson filed a timely appeal challenging his conviction on the grounds that the Dis*780trict Court abused its discretion in failing to give the accomplice witness instruction and challenging his sentence on the grounds that the District Court committed plain error in imposing consecutive mandatory minimum terms of imprisonment under 18 U.S.C. § 924(c) and 21 U.S.C. § 841(b)(1)(B).
II.
The District Court properly exercised jurisdiction over this matter pursuant to 18 U.S.C. § 3231. We have appellate jurisdiction based upon the timely filing of a notice of appeal from the July 16, 2008 order of judgment in the criminal case under 28 U.S.C. § 1291. We review the District Court’s refusal to give an accomplice witness instruction under an abuse of discretion standard. United States v. Leahy, 445 F.3d 634, 642 (3d Cir.2006). As Wilson did not object to the imposition of consecutive mandatory minimum sentences at the sentencing hearing before the District Court, we review the sentence for plain error. United States v. Couch, 291 F.3d 251, 252 (3d Cir.2002).
III.
Wilson first argues that the District Court abused its discretion in refusing to give the accomplice witness instruction requested with regard to the testimony of Baba Tunkara.
A District Court’s refusal to give an instruction will be reversed “only when the requested instruction was correct, not substantially covered by the instructions given, and ivas so consequential that the refusal to give the instruction was prejudicial to the defendant.” Leaky, 445 F.3d at 651.
We considered the use of accomplice witness instructions in United States v. Isaac and wrote:
“We recognize that a witness who has been given a reward for cooperation has also been given an incentive to shade the truth or to lie. It may well be the better practice to give an instruction if requested. However, such an instruction is not required, especially when, as here, it has been made clear to the jury that it is permitted to disbelieve testimony to the extent it finds that the testimony was driven more by a self-serving desire for leniency than a sense of duty to tell the truth. We have repeatedly approved the practice of counseling jurors to view the testimony of accomplices and immunized witnesses with skepticism and caution, particularly when it is uncorroborated and material to establishing the defendant’s guilt.”
134 F.3d 199, 204 (3d Cir.1998).
Isaac establishes that providing an accomplice witness instruction is not mandatory; rather the decision to give the instruction is left to the discretion of the district court. Other Courts of Appeals concur that there is “no absolute and mandatory duty to instruct a jury to consider even the testimony of an un corroborated accomplice with caution.” United States v. Rockelman, 49 F.3d 418, 423 (8th Cir.1995) (internal citation omitted).
Here, the District Court largely covered the substance of the accomplice witness instruction in its general charge to the jury. The District Court instructed the jury to “carefully scrutinize all the testimony given, [and] the circumstances under which each witness has testified.... ” (App.217) The Court also instructed jurors to consider each witness’s “motive to falsify.” Id. The Court did not, however, instruct the jury to perform a more thorough examination of Tunkara’s motivations for testifying because Tunkara was an accomplice. The jurors, nonetheless, were properly informed of their duty to scrutinize the credibility of all witnesses and evidence.
At trial, Wilson’s attorney had the opportunity to cross-examine Tunkara and *781demonstrate to the jury any potential motivation the witness had to falsify his testimony. Wilson’s attorney did indeed ask Tunkara about the impact that a criminal conviction would have on his pending application for United States citizenship, and during closing argument urged the jury to evaluate Tunkara’s credibility and consider whether his motive to testify was to avoid a firearm possession charge.1
The District Court, therefore, did not abuse its discretion in this case by refusing to give the accomplice witness instruction.
IV.
Wilson next argues that the District Court committed plain error by sentencing him to consecutive mandatory mínimums under both 18 U.S.C. § 924(c) and 21 U.S.C. § 841(b)(1)(B). 18 U.S.C. § 924(c)(1)(A) provides:
“Except to the extent that a greater minimum sentence is otherwise provided by this subsection or by any other provision of law, any person who, during and in relation to any crime of violence or drug trafficking crime (including a crime of violence or drug trafficking crime that provides for an enhanced punishment if committed by the use of a deadly or dangerous weapon or device) for which the person may be prosecuted in a court of the United States, uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime — (i) be sentenced to a term of imprisonment of not less than 5 years;”
Wilson was sentenced under this provision to five years for possession of a firearm. Wilson’s conviction for possession with intent to distribute more than five grams of cocaine base after having previously been convicted of a drug felony, subjects him to a ten-year mandatory minimum under 21 U.S.C. § 841(b)(1)(B).
Wilson argues that the five-year mandatory minimum under § 924(c)(1)(A) should not be applied to him because § 841(b)(1)(B) subjects him to a longer mandatory minimum sentence, and the prefatory clause of § 924(c)(1)(A) does not allow for the application of a mandatory minimum to be imposed under that statute in cases where a greater minimum sentence is imposed “by this subsection or by any other provision of law.”
While Wilson’s argument is supported by the Second Circuit’s holding in United States v. Whitley, 529 F.3d 150, 151 (2d Cir.2008), this Court recently held in United States v. Abbott, 574 F.3d 203, 206-07 (3d Cir.2009), that the mandatory sentence set forth in 18 U.S.C. § 924(c) must run consecutively with any mandatory sentence currently provided by statute. We must follow this precedent.
In Abbott, we joined the majority of other Courts of Appeals in holding that the *782prefatory clause in § 924(c)(1)(A) does not foreclose consecutive mandatory minimum sentences where the predicate offense includes a mandatory minimum term of imprisonment that is longer than the sentence required by § 924(c). See United States v. Easter, 553 F.3d 519 (7th Cir.2009); United States v. Parker, 549 F.3d 5, 10-12 (1st Cir.2008); United States v. Jolivette, 257 F.3d 581 (6th Cir.2001); United States v. Studifin, 240 F.3d 415 (4th Cir.2001); United States v. Alaniz, 235 F.3d 386 (8th Cir.2000). While we noted in Abbott that reading the prefatory clause in isolation may lead to the conclusion that § 924(c) mandatory mínimums do not apply when a predicate offense carries a greater mandatory minimum, we found that reading “suspect on its face.” 574 F.3d at 209. The prefatory clause, we explained, applies to “greater minimum sentences provided by this subsection, not for predicate offenses.” Id. We held in Abbott that “the minimum sentences specified by § 924(c)(1) apply in addition to the punishment provided for a predicate offense. Thus, the prefatory clause requires a comparison between the minimum sentences specified in §§ 924(c)(1)(A)(i) — (iii) and (B)-(C), and, at a minimum, others associated with using, carrying, or possessing a firearm — not the predicate offense itself.” Id.
Finally, we noted in Abbott that interpreting the prefatory clause in § 924 in the manner suggested by Wilson would run counter to the clear intent of Congress to increase the sentences of those who possess, brandish, or discharge a firearm in the course of committing a drug felony. Id. Using a hypothetical, we illustrated the bizarre sentencing results that would undoubtedly occur if the prefatory clause were found to apply to the predicate offense. See id. at 209 (The hypothetical demonstrated that those charged with a lesser drug felony and an offense under § 924(c) would actually face longer mandatory minimum sentences than those convicted of a greater drug felony and the same violation of § 924(c) because those charged with the greater drug felony would see their mandatory minimum under § 924(c) wiped out.) Abbott makes it clear that we will not apply the prefatory clause to the predicate offense.
Here, Wilson was convicted on a felony drug charge under 21 U.S.C. § 841(b)(1)(B) as the predicate offense to his conviction under § 924(c)(1)(A)© for possession of a firearm. Because the prefatory clause in § 924(c)(1)(A) does not apply when a greater mandatory minimum is found in the predicate offense, Wilson was properly sentenced. We therefore hold that the District Court did not err in sentencing Wilson to consecutive mandatory minimum sentences under 18 U.S.C. § 924(c)(1)(A) and 21 U.S.C. § 841(b)(1)(B).
V.
For the foregoing reasons, we will affirm the judgment of the District Court.
. Further, the District Court's record reveals two additional arguments for refusing to give the instruction. First, Wilson did not request, nor put into writing, the instruction at the charging conference as required by Rule 30 of the Federal Rules of Criminal Procedure. We have held in United States v. Davis, however, that an instruction request need only be sufficiently clear for the trial judge to fairly consider it. 183 F.3d 231, 252 (3d Cir.1999). Wilson’s failure to comply with Rule 30, therefore, is not dispositive in this case. Second, the government argued that since Tunkara was not formally charged in the federal indictment against Wilson, he is not an accomplice for purpose of a jury instruction. While the Court acknowledged that Tunkara was not charged in the instant case, it did not elaborate as to the weight it gave to this issue. (App.161) Neither of these arguments is dis-positive for the purpose of our appellate review. We, therefore, focus our review on the necessity of providing the instruction and we need not further elaborate on these two arguments.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8472651/
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OPINION OF THE COURT
FISHER, Circuit Judge.
Anthony Bizzell appeals from his conviction and sentence for one count of possessing a firearm as a convicted felon in violation of 18 U.S.C. § 922(g)(1). Bizzell argues that the District Court committed reversible error when it refused to suppress an inculpatory statement Bizzell made to an officer prior to the issuance of appropriate warnings, as required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Bizzell also raises a procedural challenge to his sentence and a constitutional challenge to the application and validity of 18 U.S.C. § 922(g)(1). Because we find the Miranda violation was reversible error, we will not reach these latter arguments.
I.
We write exclusively for the parties who are familiar with the factual context and legal history of this case. Therefore, we will set forth only those facts necessary to our analysis.
In the early morning of February 24, 2007, three Philadelphia police officers, George Marko, Joseph Kelly, and Brandon Bryant, responded to a radio call of gunshots and observed Anthony Bizzell standing near the scene holding a beer. Marko got out of the car to talk to Bizzell, who then fled. The officers gave chase, eventually catching Bizzell in an alleyway. Officer Marko indicated to his fellow officers that he had seen Bizzell pull a gun from his waistband. The officers tackled Bizzell and restrained him. The officers recovered a gun from the scene of the arrest. In the course of the struggle, Bizzell sustained injuries to his face and mouth, which required medical treatment.
On May 8, 2007, a grand jury in the Eastern District of Pennsylvania returned a one-count indictment against Bizzell, charging him with possessing a firearm as a convicted felon in violation of 18 U.S.C. § 922(g)(1). Bizzell pleaded not guilty. Prior to his jury trial, Bizzell filed a motion to suppress a statement that he made *789to a police officer after he had been arrested and while being treated in a hospital for the injuries he received as a result of that arrest. Specifically, he asserted that he had not been informed of his rights pursuant to Miranda and that, therefore, the officer had taken that statement in violation of his Fifth and Sixth Amendment rights.
The District Court held a suppression hearing on December 3, 2007. At the hearing, Officer James O’Connell of the Philadelphia Police Department testified that on February 24, 2007, at around 2:00 a.m., he transported Bizzell to the Germantown Hospital. O’Connell stated that while Bizzell was at the hospital, Bizzell asked O’Connell what he was being arrested for, to which O’Connell responded, “You had a gun.” (App.50-51.) O’Connell then asked him, “What were you doing with a gun?” (App.51.) Bizzell answered that he always carried a gun. (Id.) O’Connell did not record this information, but later relayed his conversation with Bizzell to one of the arresting officers, Officer Joseph Kelly. At no point prior to this statement did O’Connell or any other police officer inform Bizzell of his Miranda rights.
The District Court, ruling from the bench, denied Bizzell’s motion to suppress the statement. It explained:
As far as the hospital goes, my holding is that [Bizzell] was not undergoing custodial interrogation. That he asked the question, what he was arrested for, and the officer told him. And then he volunteered the statement of [sic] that he always carries a gun. Even if the officer asked him, well, you know, you’re being arrested for carrying a gun, why do you carry a gun? That’s not a custodial interrogation, in my view. So the motion to suppress will be denied.
(App.60.)
At trial, the Government introduced the testimony of the three arresting officers, which was neither in perfect agreement nor in irreconcilable dispute. Among the testimony was Officer Marko’s statement that, during the pursuit, he saw Bizzell pull a gun from his waistband which prompted him to yell “gun” to his partner. Marko also testified that he saw Bizzell bring “the gun behind him like this, and point[] it back towards [Marko].” (App. 134-35.) Neither of the other two officers stated that they saw a gun until after Bizzell was forced to the ground. Bryant testified that when he tackled Bizzell, he “heard something hit the ground, like a metal type hitting the ground.” (App.201.) Marko also testified that the officers struggled with Bizzell “for approximately a minute, trying to get the gun out of his hand.” (App.135.) Marko and Kelly testified that, after Bizzell was handcuffed, Kelly located a gun in the nearby vicinity and unloaded it, although Bryant did not see Kelly pick it up.
The Government then introduced the testimony of Officer O’Connell, which mirrored the testimony he had given at the earlier suppression hearing. Specifically, O’Connell told the jury:
While we were at the hospital, [Bizzell] asked why he was being locked up. And I told him it was because he had a gun. And I asked him, why would he have a gun? And he said, I always have a gun, because I was shot before.
(App.209-10.)
The theories presented by the defense centered on various alleged inconsistencies in the arresting officers’ testimony: neither Bryant nor Kelly observed the gun prior to Bizzell being tackled by the officers and Bryant did not observe where Kelly picked up the gun. Additionally, the defense set forth a “second incident” theory based on Marko’s testimony in an earlier state court proceeding that the encounter took place at 11:45 p.m. on February *79028, 2007, and various corroborating notes in the arrest report.
In the course of jury summations, the Government argued:
And, then we have the defendant actually admitting to having the gun.... [P]erhaps he thought that, by the fact that he was having — having a gun for self defensive purposes, it was okay to have the gun. It’s impossible for us to know. None of us are in the defendant’s head. But, the point is that he admitted to the police that he had the gun, which again is consistent with all of the other evidence in this case.
(App.280-81.) In its rebuttal, the Government displayed the arrest memo to the jury, stating:
There it is in black and white, as they say. This was the memo that was written by [Officer] Marko. Clearly it’s been recorded by the police. The defendant states to Police [Officer] O’Connell on P.W. 1400 that he always carries a gun because he’s been shot before, loaded with seven rounds in the chamber.
(App.294-95.)
After deliberating for a little over an hour, the jury returned a guilty verdict against Bizzell. Following sentencing, Bizzell filed this timely appeal.
II.
The District Court had jurisdiction under 18 U.S.C. § 8231, and we have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
“We review a denial of a motion to suppress for clear error as to the underlying facts, but exercise plenary review as to its legality in light of the court’s properly found facts.” United States v. Shabazz, 564 F.3d 280, 286 n. 4 (3d Cir.2009) (internal quotation marks and select punctuation omitted). We review the record de novo to determine whether a constitutional error is harmless. Arizona v. Fulminante, 499 U.S. 279, 295, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991).
III.
Bizzell argues that the District Court committed reversible error under Miranda by refusing to suppress the statement he made to O’Connell in which Bizzell indicated that he always carried a gun because he had been shot before. He contends that this constitutional error was not harmless beyond a reasonable doubt and, as a result, this Court must vacate the judgment of conviction and sentence. In response, the Government, despite having argued to the contrary in the District Court, concedes on appeal that it was, in fact, constitutional error to have admitted the statement at trial. Nevertheless, according to the Government, this Court should hold that the error was harmless in light of the rest of the evidence presented against Bizzell.
A.
Although the Government concedes the Miranda violation on appeal, we will address it briefly here.
“Under the prophylactic rules announced in Miranda, a statement made by a suspect in response to custodial interrogation after he or she has elected to remain silent is inadmissible at trial.” United States v. Brownlee, 454 F.3d 131, 146 (3d Cir.2006). The Miranda safeguards are triggered when a person who is in custody is subjected to interrogation. Rhode Island v. Innis, 446 U.S. 291, 300-01, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980). Because Bizzell was under arrest at the time of the questioning, he was clearly in “custody” for Miranda purposes. Stansbury v. California, 511 U.S. 318, 322, 114 S.Ct. 1526, 128 L.Ed.2d 293 (1994). The Government also concedes, and the record supports, that no Miranda warnings were *791issued prior to the conversation in question.
The only question, then, is whether O’Connell’s question was an “interrogation.” An interrogation includes “any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.” Innis, 446 U.S. at 301, 100 S.Ct. 1682. Though the District Court held that O’Connell’s question regarding the gun was merely responsive to Bizzell’s question regarding his arrest and thus not an interrogation, we disagree. In Brownlee we held that an officer asking “Why would you do something dumb like this?” and “With a gun?” constituted an interrogation. We reasoned, “It is difficult to imagine questions that are more likely to evoke an incriminating response — that is, a ‘statement amounting to admissions of part or all of the offense’ ” 454 F.3d at 146-47 (quoting Innis, 446 U.S. at 301 n. 5, 100 S.Ct. 1682) (select internal punctuation omitted). Although Bizzell initially asked O’Connell what he was being arrested for, O’Connell, after answering that question, expressly asked him why he had a gun. This latter question was reasonably likely to — and, in fact, did — elicit an incriminating response from Bizzell.
Accordingly, we hold that O’Connell’s questioning was a custodial interrogation. Because Bizzell had not been issued any Miranda warnings, his statements regarding his possession of the gun were not admissible against him at trial. The District Court, therefore, erred in denying Bizzell’s motion to suppress the statement.
B.
Because the District Court erred in admitting into evidence a statement obtained in violation of Miranda, we must reverse unless we can say that the admission of the defendant’s statement was harmless. Brownlee, 454 F.3d at 148. In making this determination, we apply the familiar test set forth in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), for assessing the harmlessness of a constitutional error. Under Chapman, the Government must “prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.” 386 U.S. at 24, 87 S.Ct. 824; Brownlee, 454 F.3d at 148 (applying the harmless-beyond-a-reasonable-doubt test to a Miranda violation). “The question ‘is not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error.’ ” Gov’t of V.I. v. Davis, 561 F.3d 159, 165 (3d Cir.2009) (quoting United States v. Korey, 472 F.3d 89, 96 (3d Cir.2007)).
In this case, we cannot conclude that the erroneous admission of Bizzell’s statement was harmless. The analysis here closely tracks our opinion in Brownlee, 454 F.3d at 131. In Brownlee, the defendant was indicted for his alleged involvement in a carjacking. His defense at trial was mistaken identity. The Government’s principal evidence against the defendant was the testimony of four eyewitnesses, whose identification was bolstered by statements made by the defendant prior to receiving Miranda warnings. Our holding that the error in admitting the statements was not harmless turned on two principles: first, that the statements went to the heart of the government’s evidence against the defendant; and second, that the government’s reliance on those statements belied any argument that their admission did not influence the jury.
Here, Bizzell’s statement that he always carried a gun went directly to the only *792issue in dispute at trial — whether Bizzell was in possession of a gun — and seriously undermined Bizzell’s defense. The Government attempts to avoid this observation by arguing that the statement was a “minor factor” in the case and that the verdict “did not rest upon” its admission. This analysis does not satisfy the strict standard set by Chapman. Chapman requires us to conclude that there is no “reasonable possibility that the evidence complained of might have contributed, to the conviction.” Chapman, 386 U.S. at 24, 87 S.Ct. 824 (emphasis added). If the erroneously admitted statement was a factor, albeit even a minor one, in the jury’s verdict, then the error was not harmless and we must reverse.
Additionally, the Government’s reliance on Bizzell’s statement in its jury summation and rebuttal is a strong indicator that the Government intended the jury to give weight to the statement. As we noted in Brownlee, “[I]t is difficult for the Government to argue with effect that the admission of the confession did not contribute to [the defendant’s] conviction when it submitted just the opposite view to the jury during the trial.” 454 F.3d at 148.
In arguing that it has satisfied its burden, the Government relies on United States v. Shabazz, 564 F.3d 280 (3d Cir.2009), but that case is readily distinguishable. In Shabazz, we held that a robbery defendant’s pre-Miranda statement that he had “plenty more” cash than the amount found in his wallet was harmless in light of the overwhelming amount of evidence presented against him at trial, including surveillance video footage and the testimony of several of the defendants’ accomplices. Id. at 286. Unlike in Shabazz, there was no forensic evidence or civilian third-party testimony admitted against Bizzell. Rather, the Government’s case largely hinged on the officers’ credibility, which the defense argued was undermined by various inconsistencies in the officers’ testimony.
Perhaps more importantly, the statement in Shabazz was merely evidence from which a jury might infer the defendant’s participation in criminal activity. Here, Bizzell’s statement that he always carried a gun was tantamount to a confession where the only issue at trial was Bizzell’s possession of a gun. Thus, in distinguishing Shabazz, we are cognizant of the Supreme Court’s admonition that “[a] confession is like no other evidence.” Fulminante, 499 U.S. at 296, 111 S.Ct. 1246. As the Court explained, “[T]he defendant’s own confession is probably the most probative and damaging evidence that can be admitted against him.” Id. (internal quotation marks omitted). “Certainly, confessions have a profound impact on the jury, so much so that we may justifiably doubt its ability to put them out of mind even if told to do so”; accordingly, a reviewing court must “exercise extreme caution before determining that the admission of the confession at trial was harmless.” Id. (internal quotation marks omitted); see also Broumlee, 454 F.3d at 148 (rejecting the government’s harmless error argument and referring to Fulminante).
We cannot conclude from this record that the admission was harmless. Bizzell’s statement that he always carried a gun was a highly influential piece of evidence that spoke directly to the core issue in the Government’s case. Surely aware of its power, the Government reiterated the statement to the jury in its summation and rebuttal. The Government has thus failed to meet its burden of demonstrating that the District Court’s error in admitting the statement did not contribute to the jury’s verdict.
IV.
For the foregoing reasons, we will vacate the conviction and sentence, reverse *793the District Court’s order denying the motion to suppress the statement, and remand for proceedings consistent with this opinion.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8472653/
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OPINION OF THE COURT
FISHER, Circuit Judge.
Kevin Jenkins appeals from his judgment of conviction and sentence. Because we agree with Jenkins that the District Court committed reversible error during the second retrial when it instructed the jury on Count Three of the superceding indictment, which charged him with violating 18 U.S.C. § 924(c)(1), we will vacate his conviction on that count and remand to the District Court for further proceedings. *794We will affirm the judgment in all other respects.
I.
We write exclusively for the parties, who are familiar with the factual context and legal history of this case. Therefore, we will set forth only those facts necessary to our analysis.
In August 2003, New Jersey law enforcement authorities arrested Jenkins based on his alleged involvement in a home invasion and vehicle theft incident which had occurred several months earlier and, in January 2004, Jenkins pleaded guilty to robbery in state court. However, after he had entered his plea, federal authorities informed the state officials that, based on a federal investigation, Jenkins and his co-defendants had intended not only to steal a vehicle but also to rob a bank and, as a result of this new information, the state officials concluded that Jenkins had not been truthful and withdrew his plea. In September of that year, a grand jury in the Eastern District of Pennsylvania returned a superceding indictment charging Jenkins with one count of conspiracy to commit armed bank robbery, in violation of 18 U.S.C. § 371 (Count One); one count of using and possessing a firearm in furtherance of the conspiracy to commit armed bank robbery, in violation of 18 U.S.C. § 924(c)(1) (Count Three); one count of conspiracy to commit carjacking, in violation of 18 U.S.C. § 371 (Count Four); one count of carjacking, in violation of 18 U.S.C. §§ 2119 and 2 (Count Five); and one count of using and possessing a firearm in furtherance of the conspiracy to commit carjacking, in violation of 18 U.S.C. § 924(c)(1) (Count Seven).1
In May 2006, a jury acquitted Jenkins of Count Five, but found him guilty of all other counts. Following the trial, Jenkins filed motions for judgment of acquittal and for a new trial, and the District Court granted him a new trial with respect to Counts One and Three. The retrial on Counts One and Three resulted in a hung jury and the District Court declared a mistrial. Jenkins was tried again on those two counts and this time the jury returned a guilty verdict on both counts. The District Court entered judgment against Jenkins on Counts One, Three, Four, and Seven, sentencing him to 480 months of imprisonment.
Jenkins timely appealed from the judgment. The District Court had jurisdiction under 18 U.S.C. § 3231 and we have jurisdiction under 28 U.S.C. § 1291.
II.
A.
We begin with Jenkins’s argument that the District Court committed reversible error when it instructed the jury during his second retrial on the firearm offense charged in Count Three under 18 U.S.C. § 924(c)(1). Section 924(c)(1)(A) states that “any person who, during and in relation to any crime of violence or drug trafficking crime ... uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall [be subjected to additional punishment].” Jenkins contends that the District Court constructively amended his indictment by instructing the jury on the “during and in relation to” language of § 924(c)(1)(A), instead of on the “in furtherance of’ language of that provision as charged in his indictment. He acknowledges that because he failed to object to the District Court’s instructions, we review for plain *795error. United States v. Syme, 276 F.3d 131, 148 (3d Cir.2002). Accordingly, we may reverse if the District Court committed a clear or obvious error which affected Jenkins’s substantial rights and which seriously affected the fairness, integrity, or public reputation of the judicial proceedings. United States v. Olano, 507 U.S. 725, 734-37, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993).
The Government concedes that the District Court committed an error when it instructed the jury on Count Three. “A constructive amendment occurs where a defendant is deprived of his substantial right to be tried only on charges presented in an indictment returned by a grand jury.” Syme, 276 F.3d at 148 (internal quotation marks omitted); see also United States v. McKee, 506 F.3d 225, 229 (3d Cir.2007) (stating that an indictment may be deemed constructively amended when a jury instruction “broaden[s] the possible bases for conviction from that which appeared in the indictment” (internal quotation marks omitted)). Here, while Count Three of the superceding indictment charged Jenkins with the “in furtherance of’ language of § 924(c)(1)(A), the District Court instructed the jury on the “during and in relation to” language of the statute, which was error. See United States v. Dentler, 492 F.3d 306, 312 (5th Cir.2007) (stating that there is a constructive amendment “when the jury is permitted to convict the defendant based on an alternative basis permitted by the statute but not charged in the indictment” (internal quotation marks omitted)). Moreover, this error was clear and obvious under current law. See Syme, 276 F.3d at 151 (“Cases from the Supreme Court and this court hold that it violates the Grand Jury Clause of the Fifth Amendment when a court instructs a jury on a ground for conviction that is not fully contained in the indictment.”).
Even if an error is clear or obvious, the plain error framework requires a showing that the error affected the defendant’s substantial rights or, in other words, that the error “was prejudicial in that it affected the outcome of the District Court proceedings.” United States v. Ozcelik, 527 F.3d 88, 96 (3d Cir.2008) (internal quotation marks omitted). Although the defendant generally carries the burden of demonstrating prejudice, where a district court constructively amends the defendant’s indictment through its instructions to the jury, such error is “presumptively prejudicial” and, as a result, our inquiry must focus on “whether the government has effectively rebutted the presumption.” Syme, 276 F.3d at 155.
The Government, acknowledging its burden here, argues that the error in this case did not prejudice Jenkins because, despite the fact that the jury was instructed on “during and in relation to,” the evidence at trial nevertheless established what the indictment alleged — that is, that he used and possessed a firearm “in furtherance of’ the conspiracy to commit armed bank robbery — and thus the error did not affect the outcome of the proceedings. We are not persuaded. Given the discrete conduct described in § 924(c)(1)(A), “Congress may well have intended ‘in furtherance’ to impose a more stringent standard than ‘in relation to.’ ” United States v. Loney, 219 F.3d 281, 287 (3d Cir.2000); see also United States v. Combs, 369 F.3d 925, 933 (6th Cir.2004) (stating that “ ‘in furtherance of differs from ‘during and in relation to’ and requires the government to prove a defendant used the firearm with greater participation”). While there certainly may be instances where the evidence in a case is so overwhelming that we can confidently say that a district court’s instruction to the jury on “during and in relation to” did not prejudice a defendant charged under the “in furtherance of’ aspect of the statute, based on the record before us, we are *796unable to reach such a conclusion in this case. See, e.g., United States v. Brown, 560 F.3d 754, 768 (8th Cir.2009) (“By allowing the jury to convict based on possession of a firearm merely ‘in relation to’ the drug conspiracy, instead of in furtherance of that conspiracy, the instructions likely affected the verdict .... ”); cf. McKee, 506 F.3d at 231-32 (“If we presume, as we must, that the jury followed the court’s instructions, we must conclude that there is a real possibility that the jury relied upon the uncharged examples of conduct to convict the Defendants, just as the court instructed.”); United States v. Dobson, 419 F.3d 231, 240 (3d Cir.2005) (acknowledging that the government had presented evidence which the jury could have determined satisfied the knowledge element of the offense charged in the indictment, but that this alone “does not preclude a finding of prejudice for purposes of plain error”).
Therefore, having concluded that there was clear and obvious error which, under the circumstances of this case, affected Jenkins’s substantial rights, we will exercise our discretion and vacate Jenkins’s conviction on Count Three. See McKee, 506 F.3d at 232 (concluding that the constructive amendment prejudiced the defendants and that “[l]eaving this error uncorrected would seriously affect the fairness and integrity of the proceeding”); Syme, 276 F.3d at 155-56 (same); see also United States v. Hunter, 558 F.3d 495, 502-03 (6th Cir.2009) (concluding that “the district court erroneously informed the jury that [the defendant] was charged with possession of a firearm ‘during and in relation to’ a drug trafficking crime, and mixed in this lower standard of participation in its instructions,” which, under plain error review, warranted reversal).
B.
Jenkins raises a variety of other arguments on appeal, which we conclude are all meritless.
Initially, Jenkins attacks the sufficiency of the evidence as to his convictions for conspiring to commit carjacking and conspiring to commit armed bank robbery. In reviewing his challenges, we “must consider the evidence in the light most favorable to the government and affirm the judgment if there is substantial evidence from which any rational trier of fact could find guilt beyond a reasonable doubt.” United States v. Frorup, 963 F.2d 41, 42 (3d Cir.1992). Having examined the evidence pertaining to each count under this “highly deferential” standard, United States v. Hodge, 321 F.3d 429, 439 (3d Cir.2003) (internal quotation marks omitted), we conclude that, contrary to Jenkins’s contention, a rational juror could find that Jenkins had the requisite intent for conspiracy to commit carjacking. We further conclude that a jury could find that he entered into an agreement to rob a bank with the requisite intent and took overt acts in furtherance of that agreement as required for conspiracy to commit armed bank robbery. See United States v. Brodie, 403 F.3d 123, 134 (3d Cir.2005) (“The elements of conspiracy ... can be proven entirely by circumstantial evidence.”); United States v. Lopez, 271 F.3d 472, 486-87 (3d Cir.2001) (concluding that the evidence was sufficient to establish the intent element of carjacking where the defendants assaulted the victim in her residence and the vehicle was outside); United States v. Voigt, 89 F.3d 1050, 1080 (3d Cir.1996) (“It is not for us to weigh the evidence or to determine the credibility of the witnesses.” (internal quotation marks omitted)).
Next, Jenkins asserts that the District Court plainly erred in answering several questions that the jury had with respect to the elements of conspiracy to commit car*797jacking.2 According to Jenkins, the District Court incorrectly advised the jury that it was not required to consider the elements of carjacking when determining whether there was a conspiracy to commit that offense. We disagree. In addition to fully setting forth the elements of conspiracy and the substantive offense of carjacking in its charge to the jury, the District Court responded to the jury’s questions by accurately stating that carjacking and conspiracy to commit carjacking are “separate crime[s],” (App. 402), and that a defendant does not “have to accomplish the elements of the substantive crime ... to be guilty of conspiracy to commit that crime if that is what [he] intended to do,” (App. 410). See, e.g., United States v. Jimenez Recio, 537 U.S. 270, 274, 123 S.Ct. 819, 154 L.Ed.2d 744 (2003) (indicating that a jury may convict on a conspiracy charge “whether or not the substantive crime ensues” (internal quotation marks omitted)); Salinas v. United States, 522 U.S. 52, 63, 65, 118 S.Ct. 469, 139 L.Ed.2d 352 (1997) (stating that a “conspirator must intend to further an endeavor which, if completed, would satisfy all of the elements of a substantive criminal offense, but it suffices that he adopt the goal of furthering or facilitating the criminal endeavor” and that a “conspiracy may exist even if a conspirator does not agree to commit or facilitate each and every part of the substantive offense”); Pinkerton v. United States, 328 U.S. 640, 643, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946) (“[T]he commission of the substantive offense and a conspiracy to commit it are separate and distinct offenses.”). The District Court also invited the jury to send another note if it had additional questions on this issue, which the jury did not do. Thus, we discern no error, let alone plain error, in the District Court’s answers.
Jenkins also argues that the District Court committed reversible error by permitting the admission of evidence relating to his state court guilty plea, which had subsequently been withdrawn by the state prosecution, asserting that Federal Rule of Evidence 410 disallows the admission of such evidence.3 Jenkins did not move to exclude this evidence in his pretrial motion in limine or at trial and, as a result, we review for plain error.4 Evidence of a guilty plea which is later withdrawn is typically inadmissible. Fed.R.Evid. 410(1). That said, it is not clear whether the Rule applies in circumstances such as those presented here, where the defendant fails to fulfill his end of the plea bargain and the state withdraws it in response. See 2 Weinstein’s Federal Evidence § 410.09[7] *798(2d ed. 1997) (collecting case law); see also United States v. Rivas, 493 F.3d 131, 136 (3d Cir.2007) (stating that to constitute plain error, the error must be “clear or obvious under current law”). In addition, not only were Jenkins’s admissions with respect to the guilty plea consistent with other independently admissible evidence, but Jenkins relied on this evidence as part of his defense at trial, which undermines his attempt to show any prejudice resulting from its admission. See, e.g., United States v. Colletti, 984 F.2d 1339, 1344 (3d Cir.1992) (noting that the alleged error “could readily have been corrected” and that “[tjhere is room for an inference that, in the context of the trial, the incident was not neaiiy as significant as the present argument would suggest”); United States v. Valencia-Lucena, 925 F.2d 506, 514 (1st Cir.1991) (stating that the plain error doctrine “should not be used to provide a second bite at the apple for a defendant whose deliberate trial strategy has failed”). Under these circumstances, the District Court did not commit reversible error in permitting the admission of this evidence.
Jenkins further contends that the District Court erred when it denied in part his motion in limine, allowing the Government to introduce evidence of the home invasion and vehicle theft incident at his second retrial. More specifically, he contends that because the second retrial involved only the charges of conspiracy to commit armed bank robbery and the related firearm offense, the District Court should have excluded this evidence under Federal Rules of Evidence 404 and 403. “We review the District Court’s decision to exclude or admit evidence for an abuse of discretion, but we have plenary review of the District Court’s interpretation of the Federal Rules of Evidence.” United States v. Gilmore, 553 F.3d 266, 271 (3d Cir.2009).
To the extent that Rule 404 applies here, Jenkins’s argument fails. Cf. United States v. Cross, 308 F.3d 308, 320 (3d Cir.2002) (discussing intrinsic evidence and Rule 404(b)). While “[ejvidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith,” such evidence may “be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence 'of mistake or accident.” Fed.R.Evid. 404(b). As we have explained, to be admissible “(1) the evidence must have a proper purpose under Rule 404(b); (2) it must be relevant under Rule 402; (3) its probative value must outweigh its prejudicial effect under Rule 403; and (4) the court must charge the jury to consider the evidence only for the limited purpose for which it is admitted.” United States v. Sampson, 980 F.2d 883, 886 (3d Cir.1992) (citing Huddleston v. United States, 485 U.S. 681, 691-92, 108 S.Ct. 1496, 99 L.Ed.2d 771 (1988)). Each of these factors is met in this case. We agree with the District Court that the evidence had a proper purpose and was relevant. See United States v. Vega, 285 F.3d 256, 261 & n. 1 (3d Cir.2002) (stating that “prior bad act evidence may be admitted for the purpose of demonstrating [a defendant’s] knowledge of a conspiracy and relationship with one of its members,” as well as “for the purpose of demonstrating that [a defendant] had the opportunity and/or intent to participate in [that] conspiracy”); see also United States v. Balter, 91 F.3d 427, 437 (3d Cir.1996) (“Trial court rulings under Rule 404(b) ... may be reversed only when they are clearly contrary to reason and not justified by the evidence.” (internal quotation marks omitted)). We also agree with the District Court that the danger of unfair prejudice did not substantially outweigh the probative value of the evidence under Rule 403. *799See, e.g., Sampson, 980 F.2d at 889 (stating that the Rule 403 “determination lies within the broad discretion of the trial court”); see also United States v. Kemp, 500 F.3d 257, 297 (3d Cir.2007) (explaining that where the contested evidence is highly probative, a defendant “faces a high hurdle in showing that the danger of unfair prejudice substantially outweighed the probative value”); Cross, 308 F.3d at 324 (“Rule 404(b) evidence is especially probative when the charged offense involves a conspiracy.”). And Jenkins does not identify, nor do we discern, any specific deficiencies in the District Court’s limiting instruction with respect to this evidence.
Finally, Jenkins contends that his convictions for Counts One and Four, the two conspiracy charges, violate the Double Jeopardy Clause because the evidence showed only one agreement. We review for plain error, as Jenkins failed to raise this argument at any point in the District Court proceedings. See United States v. Miller, 527 F.3d 54, 60 (3d Cir.2008). While we acknowledge a certain amount of overlap in the evidence, we nevertheless agree with the Government that Jenkins has failed to carry his burden of demonstrating plain error; for instance, the object of each conspiracy was separate and distinct, the defendants’ plan to rob the bank was not dependent on obtaining a vehicle through a carjacking, and the defendants made a calculated decision to carjack a vehicle only after seeking various other means of obtaining a vehicle, all of which undermine Jenkins’s claim that there was only one agreement. See United States v. Becker, 892 F.2d 265, 268-69 (3d Cir.1989) (indicating that “[jjust because the time periods of the two conspiracies overlapped does not indicate that only one conspiracy existed,” nor is “some overlap between the personnel in the two conspiracies ... indicative of only one conspiracy,” and explaining that evidence of different objectives weighs in favor of finding two agreements existed); see also United States v. Smith, 82 F.3d 1261, 1267, 1269-70 (3d Cir.1996) (noting the importance of evaluating whether there are different objectives and whether the activities are “interdependent or mutually supportive”); cf. United States v. Smith, 424 F.3d 992, 1002-03 (9th Cir.2005) (stating that even if there was a double jeopardy violation, it was not so clear or obvious such that the district court should have recognized it without objection). Given the totality of the circumstances, we reject Jenkins’s argument.
III.
For the foregoing reasons, we will vacate Jenkins’s conviction on Count Three and remand to the District Court for further proceedings, but will affirm the judgment in all other respects.
. Jenkins's co-defendants, Eric Humbert and Rasheen Jones, were also charged in the superceding indictment. Jones pleaded guilty and Humbert was tried separately from Jenkins.
. Jenkins concedes that we review this issue for plain error due to his failure to object in the District Court. See United States v. Antico, 275 F.3d 245, 265 (3d Cir.2001).
. Jenkins also makes passing reference to the Government inadvertently playing a brief portion of a videotape which featured him in a prison jumpsuit, contending that this compounded the District Court’s alleged error of admitting the guilty plea evidence. But the District Court determined that this image was momentary and that the jury was not focusing on it, and given Jenkins's failure to expound upon this argument, we will not disturb the District Court’s conclusion. Cf., e.g., Anderson v. Sec'y for the Dep't of Corr., 462 F.3d 1319, 1329 (11th Cir.2006).
.While Jenkins's brief is rather unclear as to his position regarding our standard of review, at oral argument, Jenkins's counsel appeared to concede that this issue was not properly preserved. In any event, to the extent that Jenkins still claims that he preserved this argument in his motion in limine, a review of that motion shows that Jenkins made a sweeping argument seeking to exclude all references to the home invasion incident, but made no argument with respect to Rule 410. See, e.g., United States v. Smith, 452 F.3d 323, 330-31 (4th Cir.2006) (stating that the defendant's motion in limine, which made general requests to the trial court, lacked "the required specificity” to preserve the argument on appeal and thus plain-error review was appropriate).
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OPINION
PER CURIAM.
Pro se petitioner Marina Karakozova filed a civil rights lawsuit in the United States District Court for the Western District of Pennsylvania alleging that she was the victim of employment discrimination. She now seeks a writ of mandamus to compel the Defendant in that lawsuit to comply with certain of her demands. For the reasons that follow, we will deny the petition.
On April 17, 2009, Karakozova initiated the underlying lawsuit, claiming that her contract to work as a Research Assistant at the University of Pittsburgh, School of Pharmacy (“The University”) was terminated based on her national origin. Karakozova is a citizen of the Russian Federation and the recipient of an H-1B visa which is premised on her employment at the University. Concluding that Karakozova had demonstrated a reasonable probability of success on the merits of her claim of national origin discrimination, and that she had made a strong showing of immediate and irreparable harm in the form of deportation, the District Court granted her request for a preliminary injunction. By the terms of its order, which was entered on June 11, 2009, 2009 WL 1652469, the District Court required the University to maintain Karakozova’s employment for a period of ninety days while she exhausted her administrative remedies and sought alternative employment. Since then, Karakozova has filed a number of motions for reconsideration and clarification, in addition to several documents entitled “Plaintiffs Opinion” seeking other forms of relief from the District Court. In them she claims, among other things, that the University is not complying with the directives of the District Court. On July 31, 2009, 2009 WL 2245645, the District Court entered an order denying two of *801Karakozova’s motions for reconsideration. The Court concluded that through these motions, Karakozova was “essentially seeking a back door extension of the Court’s 90 day stay of her employment, and she is seeking reconsideration of the Court’s order requiring her to pursue her administrative remedies (namely, the Grievance Appeal through the University).”
Karakozova then turned to this Court, filing the instant “Emergency Petition for Writ of Mandamus.” Through this petition, Karakozova seeks the following relief:
The emergency relief Petitioner seeks is quite simple: She wants to obligate Respondent to promptly execute the Court’s Memorandum Order (Document No. 42) in accordance with the Court’s recommendations and the University of Pittsburgh’s policies (emphasis added). [Sic.] Second, Petitioner would like to obligate Respondent (which includes but not limited: employees, students, contractors, etc. to execute Memorandum Order immediately and not later than within 5 business days from the date of issuing notification by the Court of Appeals. Third, Petitioner would like to obligate Respondent to promptly provide answers on all Petitioner’s requests) (future requests or already sent to Respondent) for clarification of internal procedures, which allow Petitioner to execute the Court’s order promptly.
She claims that the remedy of mandamus is necessary due to the limited amount of time available to her and her inability to secure such relief from the District Court.
The remedy of mandamus is reserved for the most extraordinary of circumstances. DeMasi v. Weiss, 669 F.2d 114, 117 (3d Cir.1982). In order to ensure that mandamus is sparingly granted, a petitioner seeking a writ of mandamus must demonstrate that no other adequate means are available to obtain the desired relief and that the right to issuance of the writ is “clear and indisputable.” Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 35, 101 S.Ct. 188, 66 L.Ed.2d 193 (1980) (quoting Bankers Life & Cas. Co. v. Holland, 346 U.S. 379, 384, 74 S.Ct. 145, 98 L.Ed. 106 (1953) (quoting United States v. Duell, 172 U.S. 576, 582, 19 S.Ct. 286, 43 L.Ed. 559 (1899))). Here, Karakozova seeks an order directing the University to comply with the District Court’s order and, essentially, to participate in good faith in the District Court and related proceedings. She has not demonstrated either that no other adequate means are available to obtain this relief or that her right to such relief is “clear and indisputable.”
Karakozova’s lawsuit is currently pending before the District Court, which has responded to her numerous filings and requests for relief in a timely manner. The management of its docket is committed to the sound discretion of the district court. In re Fine Paper Antitrust Litig., 685 F.2d 810, 817 (3d Cir.1982). Karakozova has not alleged that the District Court has in any way abused its discretion in managing its docket and, in any event, any such claim would not be cognizable under the circumstances presented here in the context of a mandamus petition. The writ of mandamus may not be used as a substitute for the regular appeals process. See In re Briscoe, 448 F.3d 201, 212 (3d Cir.2006). While we recognize that Karakozova has a limited amount of time in which to press her claims, she must direct all of her requests for relief to the District Court while her lawsuit remains pending there.
Based on the foregoing, we will deny the petition for a writ of mandamus.
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OPINION
SMITH, Circuit Judge.
Jose Arroyo appeals from the decision of the United States District Court for the Eastern District of Pennsylvania, which affirmed the final decision of the Commissioner of Social Security denying his claim for disability benefits under Title II of the Social Security Act. The District Court had jurisdiction pursuant to 42 U.S.C. § 405(g). We exercise jurisdiction pursuant to 28 U.S.C. § 1291. We review the factual findings of the Commissioner for substantial evidence. 42 U.S.C. § 405(g). Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971) (internal quotation marks and citation omitted). “Our review of legal issues is plenary.” Sykes v. Apfel, 228 F.3d 259, 262 (3d Cir.2000). For the reasons set forth below, we will affirm.
Arroyo filed for disability benefits in September of 2003, alleging disability due to a physical impairment following a lumbar laminectomy in 1989. After a hearing, the Administrative Law Judge (ALJ) concluded that Arroyo had the residual functional capacity (RFC) to perform sedentary work which afforded the option to *803alternate sitting and standing, and that these physical limitations were compatible with Arroyo’s past relevant work with a plumbing supply business. As a result, the ALJ denied Arroyo’s application for disability benefits.
Arroyo appealed to the District Court, arguing that the ALJ’s decision was not supported by substantial evidence because the ALJ’s finding regarding his RFC ignored Arroyo’s work history report, which indicated that his position with the plumbing supply business required lifting heavy items, and his wife’s testimony, which concerned Arroyo’s illiteracy and his physical capabilities. The District Court agreed, reversing the decision and remanding the matter for further proceedings. The District Court directed that Arroyo’s case
should be remanded in order that the ALJ review the entire record, including all relevant evidence submitted by [Arroyo] with respect to past relevant work and alleged illiteracy. If the ALJ should determine that Plaintiff does not qualify for disability as a result of his impairment or combination of impairments, the ALJ must articulate the weight applied to the evidence and the reasons for rejecting Plaintiffs claim of disability.
Because the ALJ’s decision fails to demonstrate consideration of all relevant evidence, particularly evidence concerning Plaintiffs past relevant work and alleged illiteracy, the matter should be remanded for further consideration and articulation as to the weight applied to the evidence. In light of this re-evaluation of the evidence, the ALJ should also reconsider his credibility determination. If the ALJ should determine that Plaintiff or his wife are not entirely credible, he must provide specific reasons for his determination.
Additionally, [Arroyo] should be afforded a reasonable opportunity to supplement the medical evidence to address the issues identified herein____Finally, [Arroyo] should remain cognizant that the ultimate burden of proving disability rests with him.
On remand, Arroyo submitted additional medical evidence and provided additional testimony. After considering all of the evidence, the ALJ found that Arroyo was illiterate, but that he had the RFC to perform the full range of light work. Because light level work was incompatible with Arroyo’s past relevant work, the ALJ proceeded to determine whether there were other jobs in the national economy that Arroyo could perform. Applying these findings to the Medical-Vocational Guidelines, the ALJ determined that Arroyo was not disabled. The ALJ recognized that his finding regarding Arroyo’s RFC had changed. He explained that his previous decision had been vacated by the Appeals Council and that consideration of all of the credible evidence for the period before December 31, 1993, Arroyo’s date last insured, showed that the earlier RFC finding that Arroyo could perform only sedentary work was not consistent with the evidence and that Arroyo had the RFC for the full range of light level work.
Arroyo appealed again to the District Court. He argued that the ALJ violated the law of the case doctrine. According to Arroyo, this doctrine precluded the ALJ from changing his RFC finding from sedentary with a sit/stand option to the full range of light work. The District Court rejected that argument and determined that there was substantial evidence to support the decision rendered by the ALJ following remand.
This timely appeal followed. Arroyo contends that the District Court erred in its application of the law of the case doctrine, and submits that we must reverse to correct this legal error. Furthermore, he *804asserts that application of the familiar five step sequential analysis for disability benefits to the RFC finding for sedentary work with a sit/stand option and the ALJ’s other findings requires the entry of judgment in his favor. The Commissioner asserts that the District Court did not err because, even if the law of the case doctrine is applicable to administrative proceedings of this nature, the District Court did not make a finding regarding Arroyo’s RFC.
“The law of the case doctrine directs courts to refrain from re-deciding issues that were resolved earlier in the litigation.” Pub. Interest Research Group of N.J., Inc. v. Magnesium Elektron, Inc., 123 F.3d 111, 116 (3d Cir.1997). As the Supreme Court instructed in Quern v. Jordan, 440 U.S. 332, 99 S.Ct. 1139, 59 L.Ed.2d 358 (1979), “[t]he doctrine of law of the case comes into play only with respect to issues previously determined.” Id. at 347 n. 18, 99 S.Ct. 1139 (citation omitted). After scrutinizing the District Court’s opinion reversing the ALJ’s decision and remanding the matter for further proceedings, we conclude that the issue of Arroyo’s RFC was not resolved by the District Court. Thus, we need not determine if the law of the case doctrine applies to this administrative proceeding and whether the District Court violated the doctrine.
In our view, the District Court’s remand for further administrative proceeding was quite broad. It directed the ALJ on remand to “review the entire record” to determine if Arroyo had demonstrated that he was disabled. Although the District Court emphasized that the ALJ must reassess his findings with respect to Arroyo’s past relevant work and his illiteracy, the District Court did not limit or restrict the ALJ’s reconsideration to those two particular aspects of the case. Rather, because the ALJ failed to consider “all relevant evidence,” the District Court stated that the “matter should be remanded for further consideration and articulation as to the weight applied to the evidence.” The Court specified that the ALJ was to re-evaluate the evidence and to “reconsider his credibility determination[s,]” which pertained to not only Arroyo’s credibility, but also that of his wife and Dr. Balasubramanian’s opinion. Furthermore, the Court directed that Arroyo should be afforded a reasonable opportunity to supplement the medical evidence. Indeed, additional medical evidence was submitted during the supplemental hearing.
In our view, these instructions on remand contemplate that Arroyo’s RFC would be considered anew. We cannot ignore that a re-evaluation of all relevant evidence and a reconsideration of the credibility determinations would be unnecessary if the remand was solely for the purpose of reexamining the demands of Arroyo’s past relevant work and his wife’s testimony about his literacy. Nor would there be any reason to afford Arroyo an opportunity to submit additional medical evidence if the ALJ was limited on remand to reviewing the nature of Arroyo’s past work with the plumbing supply business and the testimony of Arroyo’s wife regarding his ability to read and write.
Having determined that the District Court’s earlier decision did not resolve Arroyo’s RFC, we conclude that the ALJ did not err on remand by reassessing Arroyo’s RFC. Because there is substantial evidence to support the finding that Arroyo had the RFC for the full range of light work, we will affirm the judgment of the District Court.
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*806OPINION
PER CURIAM.
Herman St. Claver Burrell petitions for review of an order of the Board of Immigration Appeals (BIA), which dismissed his appeal of an Immigration Judge’s (IJ’s) final removal order. We will deny the petition for review.
I.
Burrell is a native and citizen of Jamaica.1 He entered the United States as a lawful permanent resident in 1965 at the age of 10. A.R. 595. Burrell was served with an Order to Show Cause in 1989, charging him with being deportable for having been convicted of a controlled substance violation. A.R. 703-05. Burrell’s deportation was ordered in absentia on June 4, 1991, A.R. 689-70; but the proceeding was reopened because neither Burrell nor his attorney had notice of the hearing. The proceedings were administratively closed on May 26, 1992 because Burrell was incarcerated. A.R. 674. The matter was recalendared on a motion by the Department for Homeland Security (DHS) in 2002, A.R. 670; and Burrell applied for a waiver of inadmissibility under former Immigration and Nationality Act (INA) § 212(c) [8 U.S.C. § 1182(c) ], and for cancellation of removal under INA § 240A(a) [8 U.S.C. § 1229b(a) ].2
A hearing was held on January 4, 2007. The IJ and attorneys for the parties went through Burrell’s rap sheet, and discussed how much time he served for each crime. (The IJ’s decision lists 20 convictions). The Government made an oral motion to pretermit Burrell’s applications, and the IJ informally heard argument on both sides. The IJ then granted the motion to pretermit, finding that Burrell’s conviction for burglaries was an aggravated felony, and that his shoplifting crimes and his probation violation involving unlawful taking were crimes involving moral turpitude. Burrell did not testify, because the IJ did not consider the merits of the applications.
Burrell filed a timely appeal to the Board of Immigration Appeals (BIA), which dismissed the appeal. The BIA held that even if Burrell were able to obtain § 212(c) relief for his state controlled substance and theft aggravated felony convictions, those same convictions would render him ineligible for cancellation of removal in conjunction with his later convictions. The BIA also rejected Burrell’s due process claim. Burrell filed a timely, counseled petition for review.
II.
When Burrell was convicted of his first crimes, INA § 212(c) granted the Attorney General discretion to waive deportation in the case of legal permanent residents who had resided in the United States for at least seven years, so long as they had served less than five years in prison for an aggravated felony. See United States v. Torres, 383 F.3d 92, 95-96 (3d Cir.2004). The Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), which became effective in April 1997, repealed § 212(c) and replaced it with § 240A. Under the current provision, the Attorney General may cancel removal of an alien who has been a legal permanent resident for not less than five years, has resided continuously in the United States for seven years after having been admit*807ted, and “has not been convicted of any aggravated felony.” INA § 240A(a) [8 U.S.C. § 1229b(a)]; see Ponnapula v. Ashcroft, 873 F.3d 480, 486 (3d Cir.2004). In addition, an alien “who has been granted relief under section 212(c)” is ineligible for cancellation of removal. § 240A(c)(6) [8 U.S.C. § 1229b(e)(6) ].
Burrell was convicted of burglaries in 1985 and 1986, for which he served 18 months in prison. Burrell argued before the IJ that the burglaries would not have been aggravated felonies at the time they were committed, A.R. 128; but conceded that if he were ineligible for § 212(c) relief, the crimes would make him ineligible for § 240A relief because they are aggravated felonies under today’s law, A.R. 128-29. Burrell argues in his brief here that his burglary crimes are not aggravated felonies because “burglary” under New Jersey law encompasses crimes not contemplated by the INA’s aggravated felony definition. Burrell did not make this argument before the BIA; we thus may not consider it, because it is unexhausted. Abdulrahman v. Ashcroft, 330 F.3d 587, 594-95 (3d Cir. 2003) (petitioner must raise each ground for relief to preserve right to judicial review).
Burrell also argued before the Board that he should have been able to apply for § 212(c) and 240A relief simultaneously, and that 240A’s provision that a waiver cannot be granted to one who has “previously” been granted relief pursuant to § 212(c) would not apply. This Court rejected such an argument in Rodriguez-Munoz v. Gonzales, 419 F.3d 245, 247-48 (3d Cir.2005). Burrell concedes here that he cannot “stack” § 212(c) and § 240A relief, but he argues that he is eligible for § 212(c) relief for his pre-IIRIRA crimes, and that none of the crimes he committed after 1996 is a deportable offense; thus, he does not need § 240A relief. Burrell argues in his brief to this Court that his post-IIRIRA crimes do not involve moral turpitude, but, again, he did not make this argument to the BIA, and we therefore lack jurisdiction to consider it. Abdulrahman, 330 F.3d at 594-95.
Burrell did, however, argue in his brief to the BIA, as well as here, that pursuant to New Jersey law, his postIIRIRA convictions were all “disorderly persons offenses” rather than crimes, and therefore they could not be crimes involving moral turpitude. See N.J. Stat. Ann. 2C:l-4(b) (“Disorderly persons offenses and petty disorderly persons offenses are petty offenses and are not crimes within the meaning of the Constitution of this State.”).3 This argument is without merit. The fact that New Jersey might not deem Burrell’s offenses “crimes” is not relevant; the proper inquiry is whether the offense was “a formal judgment ,of guilty of the alien entered by a court,” and whether it therefore constitutes a conviction pursuant to 8 U.S.C. § 1101(a)(48)(A). Under the plain language of the statutes, Burrell’s convictions under N.J. Stat. Ann. § 2C:20-10(d) (unlawful taking of means of conveyance);4 § 2C:20-7(a) (receipt of stolen property) and § 2(C):20-ll(c) (shoplifting) constitute formal judgments of guilt. Cf. Acosta v. Ashcroft, 341 F.3d 218, 222 (3d Cir.2003) (state legislature cannot dictate how term “conviction” is to be construed under 8 U.S.C. § 1101(a)(48)(A)).
Burrell has not successfully challenged the Board’s implicit holding that he needs a waiver for his post-IIRIRA crimes, nor has he successfully challenged the BIA’s *808holding that he is ineligible for cancellation of removal because he has been convicted of an aggravated felony. Because he is ineligible for relief, he is removable as charged.
Burrell’s final argument is that the IJ erred in failing to review the considerable equities in his case. But because the IJ found Burrell statutorily ineligible for relief, the IJ had no authority to consider the equities.
For the foregoing reasons, we will deny the petition for review.
. The IJ's decision notes that Burrell also claimed to be a citizen of the United Kingdom, but that he did not present proof of that citizenship. Burrell was ordered removed to Jamaica, with England as an alternative.
. In 2006, Burrell was again ordered deported for failing to appear at a hearing, but the IJ granted his motion to reopen when he provided proof that he was in the hospital on the date of the hearing. A.R. 604-05, 620.
. The BIA did not directly address this argument, but it did implicitly hold that Burrell would require cancellation of removal for his post-1996 theft convictions. A.R. 2.
. Further, it appears that under New Jersey law, Burrell's "unlawful taking of means of conveyance” conviction is a "crime” of the fourth degree.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8472661/
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OPINION OF THE COURT
FUENTES, Circuit Judge:
Trianco, LLC (“Trianco”) appeals the District Court’s dismissal of the sole remaining count in its complaint against International Business Machines Corporation (“IBM”). For the following reasons, we will affirm the District Court.1
I.
Because we write primarily for the parties, we only discuss the facts and proceedings to the extent necessary for resolution of this case. In May 2005, IBM and Trianco entered into a “Teaming Agreement,” through which Trianco would work as a “team member” to assist IBM in submitting a bid proposal, as the potential prime contractor, to install computerized “point-of-sale” checkstand equipment at approximately 280 military commissaries. IBM, which had no prior experience with point-of-sale work at military commissaries, sought out Trianco, which possessed relevant expertise.
The Teaming Agreement obliged IBM to prepare the bid proposal for the prime contract. Trianco, in turn, was obligated to submit to IBM, prior to submission of the bid proposal, its “cost/priee” and “technical” proposals for the subcontract work. Trianco was also required to assist in drafting the bid proposal and required to collaborate exclusively with IBM. Trianco prepared the relevant technical plans; its work product included proprietary business information and reflected its substantial experience with similar projects. Trianco also submitted a proposal to IBM for the pricing of the subcontract work.
IBM received the prime contract on December 30, 2005. It then advised Trianco that its pricing was not competitive and unacceptable. Trianco was asked to “rebid” its initial pricing and did so “under protest.” The new bid was rejected and IBM solicited an alternative bid for the subcontract work.
Trianco filed suit, alleging that IBM breached its fiduciary duty to Trianco and the implied covenant of good faith and fair dealing. Trianco further asserted claims of unjust enrichment, equitable estoppel, and promissory estoppel. The District Court granted IBM’s motion to dismiss the complaint under Federal Rule of Civil Procedure 12(b)(6). See Trianco LLC v. Int’l Bus. Machs. Corp., 466 F.Supp.2d 600 (E.D.Pa.2006). On April 2, 2008, we affirmed in part and vacated in part the District Court’s dismissal of the complaint. See Trianco LLC v. Int’l Bus. Machs. Corp., 271 Fed.Appx. 198 (3d Cir.2008). We remanded the matter for a determination of Trianco’s unjust enrichment claim. Although our opinion held that Trianco did not have an enforceable right to receive the subcontract, we declared that this did not mandate that the remainder of the Teaming Agreement be found unenforceable. Given that unjust enrichment is a “quasi-contract claim,” the existence of an enforceable agreement could bar this claim.
On remand IBM filed a Renewed Motion to Dismiss Plaintiffs Unjust Enrichment Claim, which the District Court granted. See Trianco LLC v. Int’l Bus. Machs. Corp., 583 F.Supp.2d 649 (E.D.Pa.2008). Trianco appeals this decision.2
*810II.
Trianeo contends that the District Court made four errors in reaching its decision: (1) finding that New York law recognizes enforceable “Type II preliminary agreements” to negotiate open contract terms in good faith; (2) holding that the parties’ Teaming Agreement constituted a “Type II preliminary agreement”; (3) holding that IBM provided consideration for Trianco’s services under the agreement; and (4) dismissing Trianco’s unjust enrichment claim without permitting additional discovery.3
The District Court’s analysis relied upon opinions from the Second Circuit Court of Appeals analyzing preliminary agreements under New York law. See, e.g., Vacold LLC v. Cerami 545 F.3d 114 (2d Cir.2008); Brown v. Cara, 420 F.3d 148 (2d Cir.2005). This jurisprudence finds its genesis in Teachers Ins. & Annuity Ass’n of Am. v. Tribune Co., 670 F.Supp. 491 (S.D.N.Y.1987), which outlined two forms of preliminary agreements under New York law. The District Court found that the second type — which does not bind parties to an ultimate objective, but does require them to make a good faith effort to negotiate towards such an objective — existed in this ease.
Trianco’s first contention on appeal is that this line of cases does not accurately reflect New York law and that in fact New York courts have not recognized Type II agreements. A similar argument — that Type II agreements are merely a creation of the federal courts — was rejected by the Second Circuit in Brown, 420 F.3d at 153 n. 1. In Brown, the court noted that New York courts have cited with approval to federal court decisions that invoke the concept of Type II agreements. Our own independent review of New York cases compels us to agree with the Second Circuit’s conclusion, that Type II agreements are recognized under New York law, and accordingly affirm the District Court. Nor are we persuaded by Trianco’s contention that 2004 McDonald Ave. Realty, LLC v. 2004 McDonald Ave. Corp., 50 A.D.3d 1021, 858 N.Y.S.2d 203 (N.Y.App.Div.2008), reveals a requirement under New York law that, to be enforceable, contracts to negotiate in good faith must contain some clearer set of guidelines for measuring a party’s efforts than those present in this case.4
The District Court’s opinion carefully applied Tribune’s five factor test for determining whether a Type II preliminary agreement exists. It examined: (1) whether the agreement expressed an intent to be bound; (2) the context of the negotiations; (3) the existence of open terms; (4) partial performance; and (5) whether the customary form for such transactions indicates the necessity of putting the agreement in final form. See Tribune, 670 F.Supp. at 499-503; see also Brown, 420 F.3d at 157. We substantially agree with the District Court’s conclusions; *811the parties had a binding preliminary agreement to work together in preparing the contract bid and, should IBM receive the bid, to negotiate in good faith. The language of the Teaming Agreement reveals strong evidence of an intent to be bound by the agreement’s terms and to negotiate in good faith. This is confirmed by the context of the negotiations. Although the parties left terms open, this does not preclude a finding of a Type II agreement. See Brown, 420 F.3d at 158. Although Trianco, which substantially performed its duties under the Teaming Agreement, now seeks to have the agreement declared not binding, this partial performance evidences an intent to be bound. Finally, the parties clearly intended, as is customary in these situations, to negotiate towards a potential subcontract should IBM receive the bid. Accordingly, we find no fault with the District Court’s determination that the parties entered into a Type II preliminary agreement.
We find no merit to Trianco’s contention that it received no consideration from IBM for the valuable proprietary information, expertise, and credentials it provided. Although our prior opinion in this matter stated that, absent a guaranteed subcontract, “it appears that Trianco may not have received consideration,” Trianco, 271 Fed.Appx. at 203, this merely provided a basis for our decision to remand, not a statement of our opinion on this issue. As the District Court’s opinion revealed, Trianco received valid consideration: a promise to negotiate in good faith and to give Trianco a right of first refusal should IBM receive the government contract. Moreover, as the District Court noted, the agreement to negotiate in good faith entitled Trianco to bring an action for breach of this duty if IBM failed to perform. Trianco chose not to.
We therefore affirm the District Court’s determination that an enforceable Type II preliminary agreement to negotiate in good faith existed between Trianco and IBM. The existence of such an agreement precludes a quasi-contract claim, including a claim for unjust enrichment, that arises out of the same subject matter as that governed by the agreement. Clark-Fitzpatrick, Inc. v. Long Island R. Co., 70 N.Y.2d 382, 521 N.Y.S.2d 653, 516 N.E.2d 190, 192 (1987). As the District Court correctly concluded, Trianco’s unjust enrichment claim is predicated on actions it performed as consideration for the Teaming Agreement. Compare A73 [Teaming Agreement at § 1.2] & A77 [Scope of Work at § 5.0] with A65-66 [Second Am. Compl.]. Accordingly, Trianco’s unjust enrichment claim is precluded.
Having found that the District Court correctly interpreted the Teaming Agreement to determine that Trianco and IBM formed a Type II preliminary agreement, we find no merit in Trianco’s contention that the court erred in dismissing the unjust enrichment claim without further factual discovery. No additional discovery was necessary for the District Court to make its determination.
For the foregoing reasons, we will affirm the District Court in all respects.
. The District Court had jurisdiction under 28 U.S.C. § 1332. We have jurisdiction pursuant to 28 U.S.C. § 1291.
. We exercise plenary review over a district court's dismissal under Fed.R.Civ.P. 12(b)(6). Atkinson v. LaFayette College, 460 F.3d 447, 451 (3d Cir.2006).
. In its counter-statement of issues presented for review, IBM adds the issue of whether the District Court erred in holding that the Teaming Agreement covered the same subject matter as Trianco's unjust enrichment claim, thereby precluding that claim. We consider this in our discussion of Trianco’s third issue.
. In fact, the concerns expressed in 2004 McDonald Realty are noted in Tribune's description of a Type II agreement: “The second type-the binding preliminary commitment-does not commit the parties to their ultimate contractual objective but rather to the obligation to negotiate the open issues in good faith in an attempt to reach the alternate objective within the agreed framework.” Tribune, 670 F.Supp. at 498 (emphasis added). This framework of agreed terms provides sufficient guidelines for measuring a party's efforts to negotiate in good faith.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8472663/
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OPINION
BARRY, Circuit Judge.
Appellants Stacey and Marjorie Smith, as assignees of James Sprecher, challenge the District Court’s grant of summary judgment to appellee Continental Casualty Company. The Smiths claim that Continental wrongly denied Sprecher coverage and a defense pursuant to the terms of an insurance policy, and that Continental acted in bad faith in that denial. We will affirm.
L Factual Background
Because we write solely for the benefit of the parties, we presume familiarity with *813the facts and will recite only the basic underpinnings of this case.
James Sprecher (“Sprecher”) was a financial planner doing business as an agent and registered representative of the broker-dealer Hornor, Townsend & Kent (“HTK”). HTK is a subsidiary of Penn Mutual Life Insurance Company, which obtained, from appellee Continental Casualty Company (“Continental”), insurance for HTK’s agents and representatives, including Sprecher. In the early 1990s, appellants Stacey and Marjorie Smith (“the Smiths”) hired Sprecher as their financial planner. The Smiths claim that they asked Sprecher to recommend long-term, conservative investments. Following Sprecher’s recommendation, the Smiths placed over $200,000 in two off-shore asset protection trusts. Those trusts invested the monies into Evergreen Securities (“Evergreen”), an unregistered off-shore entity. In 2001, Evergreen filed for bankruptcy and the Smiths lost all or most of their investment.
Following Evergreen’s collapse, Sprecher was sued by Evergreen’s bankruptcy trustee, who averred that Evergreen was a massive Ponzi scheme involving risky mortgage-backed securities derivatives, and that Sprecher funneled his clients’ monies into Evergreen in exchange for cash payments. After finding out about the lawsuit and a federal grand jury investigation into Sprecher’s activities, HTK terminated Sprecher. Following his termination, Continental denied Sprecher coverage and a defense for the lawsuit initiated by Evergreen’s bankruptcy trustee.
The Smiths then sued Sprecher, asserting claims for breach of contract, negligent misrepresentation, intentional misrepresentation, breach of fiduciary duty, and violations of Pennsylvania consumer protection and securities laws. Consistent with its earlier determination, Continental again denied Sprecher coverage and a defense. In January 2007, Sprecher and the Smiths settled the lawsuit for $150,000 and an assignment of Sprecher’s rights against Continental. That settlement and assignment gave rise to the case at bar: the Smiths have sued Continental, in Sprecher’s shoes, for breach of contract and bad faith denial of insurance coverage.
II. Terms of the Insurance Policy
The insurance policy at issue here provides coverage for claims arising out of “Professional Services” rendered by an agent or representative of HTK. (See Appellants’ App. 157, 159.) In relevant part, the term “Professional Services” is defined as:
those services arising out of the conduct of the Insured’s business as a licensed Agent or General Agent.... Such services shall be limited to:
# ❖ *
e. the sale or attempted sale or servicing of variable annuities, variable life insurance and mutual funds, which are registered with the Securities Exchange Commission (if required), through a Broker/Dealer that is a member of the National Association of Securities Dealers;
[A]nd financial planning activities in conjunction with any of the foregoing.
[Professional Services also includes] those services arising out of the conduct of the Insured’s business as a Registered Representative or Registered Investment Adviser. Such services shall be limited to:
a. Investment Advisory Services; *814b. the sale or attempted sale or servicing of securities (other than variable annuities, variable life insurance and mutual funds) approved by a Broker/Dealer [in question] and incidental advice in connection therewith.
* * *
[A]nd financial planning activities in conjunction with any of the foregoing.
(Id. at 189-90,191.)
Exclusion 6 of the policy excludes from coverage any claim “against a Registered Representative or Registered Investment Adviser involving services or products not approved by [the] Broker/Dealer [in question].” (Id. at 161.)
Exclusion 14 of the policy excludes from coverage any claim:
arising out of insolvency, receivership, bankruptcy or inability to pay of any organization in which the Insured has, directly or indirectly, placed or obtained coverage or in which an Insured has, directly or indirectly, placed the funds of a client or account; however, this exclusion will not apply in the event that:
a. the Insured has placed or obtained coverage or has placed the funds of a client or account with an admitted insurance carrier; which was
b. rated “A” or higher by the A.M. Best Company, Inc. at the time such coverage or such funds were placed.
(Id. at 176.)
III. Analysis
A. Breach of Contract Claim
The Smiths’ breach of contract claim asserts that Continental owed Sprecher coverage and a defense under the terms of the insurance policy and the policy summary. Although we believe that the District Court’s grant of summary judgment as to the breach of contract claim could be affirmed on a number of grounds, we choose just one.
Exclusion 6 of the insurance policy clearly bars coverage. As outlined above, that exclusion precludes coverage for any claim “involving services or products not approved by” HTK. The Smiths’ claims against Sprecher “involv[e] ... products not approved by” HTK — to wit, Evergreen and the off-shore asset protection trusts. The Evergreen investments were not approved by any Broker/Dealer and thus plainly fall under the language of the exclusion.1
B. Bad Faith Denial of Coverage Claim
By statute, Pennsylvania provides for interest, costs, attorneys’ fees, and punitive damages for a bad faith denial of *815insurance coverage. See 42 Pa. Cons.Stat. § 8371. Although the statute does not contain a definition of “bad faith,” the Pennsylvania courts have adopted one:
‘Bad faith’ on part of insurer is any frivolous or unfounded refusal to pay proceeds of a policy; it is not necessary that such refusal be fraudulent. For purposes of an action against an insurer for failure to pay a claim, such conduct imports a dishonest purpose and means a breach of a known duty {i.e., good faith and fair dealing), through some motive of self-interest or ill will; mere negligence or bad judgment is not bad faith.
Terletsky v. Prudential Prop. and Cas. Ins. Co., 437 Pa.Super. 108, 649 A.2d 680, 688 (994) (quoting Black’s Law Dictionary 139 (6th ed.1990)); see also Klinger v. State Farm Mut. Auto. Ins. Co., 115 F.3d 230, 233 (3d Cir.1997) (“The standard for bad faith claims under § 8371 is set forth in Terletsky.”).
There is a “two-part test” for bad faith claims, and “both elements ... must be supported with clear and convincing evidence: (1) that the insurer lacked a reasonable basis for denying benefits; and (2) that the insurer knew or recklessly disregarded its lack of reasonable basis.” Klinger, 115 F.3d at 233.
For the Smiths to succeed, there must be evidence from which a factfinder could conclude that Continental had no “reasonable basis for denying benefits” and that it knew of or disregarded the lack of a reasonable basis. Here, there is evidence of neither: Continental clearly did have a reasonable basis for the denial of coverage, see supra, and there is no evidence whatsoever to support the second prong. While perhaps Continental should have spoken with Sprecher before it made a final coverage decision, a failure to follow best practices does not give rise to a bad faith claim. Summary judgment was properly granted.
IV. Conclusion
Ambiguities in insurance policies, of course, must be construed “against the insurer, the drafter of the agreement.” See, e.g., Standard Venetian Blind Co. v. Am. Empire Ins. Co., 503 Pa. 300, 469 A.2d 563, 566 (1983). But there are no ambiguities here, and no genuine issues of material fact. We will affirm the District Court’s order granting summary judgment to Continental.
. The Smiths also argue that Sprecher was entitled to coverage under the "reasonable expectations” doctrine. That doctrine provides, generally, that courts should look to the reasonable expectations of the insured when considering the extent of coverage. See, e.g., Tonkovic v. State Fann Mut. Auto. Ins. Co., 513 Pa. 445, 521 A.2d 920, 925 (1987) (holding that where an "individual applies and prepays for specific insurance coverage, the insurer may not unilaterally change the coverage provided without an affirmative showing that the insured was notified of, and understood, the change”).
The Smiths’ reasonable expectations argument is meritless: the doctrine generally applies only to unsophisticated non-commercial insureds, and only to protect such insureds from "policy terms not readily apparent and from insurer deception.” See Liberty Mut. Ins. Co. v. Treesdale, Inc., 418 F.3d 330, 344 (3d Cir.2005). Additionally, unreasonable expectations will never control, and any expectation that he would be insured for claims arising out of the marketing of unapproved products would surely have been an unreasonable one for Sprecher to hold.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8472667/
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OPINION
BARRY, Circuit Judge.
Plaintiff Municipal Revenue Services, Inc. (“MRS”), a Pennsylvania corporation that facilitates the purchase of delinquent municipal tax liens, appeals from the District Court’s grant of summary judgment in favor of Defendants John McBlain and Aldan Borough in this 42 U.S.C. § 1983 action. MRS also appeals from the Court’s partial grant of Defendants’ motion to dismiss.
At issue is whether MRS was deprived of “rights, privileges, or immunities secured by the Constitution and laws of the United States,” 42 U.S.C. § 1983, when McBlain, the Vice President of the Aldan Borough Council, called MRS’s business model “loan sharking with attorneys’ fees” at a local school board meeting. Because, absent exceptional circumstances not present here, we do “not ... view defamatory acts as constitutional violations,” Boyanowski v. Capital Area Intermediate Unit, 215 F.3d 396, 401 (3d Cir.2000), we will affirm.
I. Background
The William Penn School District (“District”) is a regional public school district located in Delaware County, Pennsylvania, comprised of six boroughs — Aldan, Colwyn, Darby, East Landsdowne, Landsdowne, and Yeadon. In early 2005, the District began exploring the possibility of selling its delinquent tax liens to generate additional revenue. According to the District’s chief operating officer, Joseph Otto, about twelve percent of the District’s residents do not pay their property taxes in a timely fashion, creating a yearly revenue shortfall of approximately three million dollars.
With the encouragement of at least one member of the nine-member William Penn School Board (“Board”), Otto invited three companies to give public presentations to the Board promoting their respective delinquent tax lien collection services. On July 14, 2005, MRS, Xspand, and the Portnoff Law Associates promoted their collection models, and, ultimately, Otto recommended MRS to the Board. In a memo dated October 13, 2005, Otto praised MRS’s approach as “much simpler” in that it would “not change the way the school district collects the delinquent taxes” and would allow the District to continue to “receive all taxes, interest, and penalties collected” less five percent in fees. (App. at 786.)1
At approximately the same time, in Delaware County, the City of Chester and the Chester Upland School District were finalizing a delinquent tax lien sale with Xspand. McBlain, who also served as the Delaware County solicitor, was tangentially involved in that sale, and was responsible for reviewing the terms of the sale for its potential impact on the Delaware County Tax Claim Bureau and its tax collection efforts. (Id. at 1476.) In that role, he issued an opinion letter endorsing the sale. *821Despite that endorsement, McBlain expressed his general opposition to delinquent tax lien sales to Linda Cartisano, who was the solicitor for the City of Chester.
McBlain, who wears a number of hats in Delaware County — serving, in addition to his other roles, as solicitor for the Delaware County Redevelopment Authority, the Delaware County Economic Development Oversight Board, and various local zoning boards — is also involved in local politics. He is the chairman of the Republicans for Aldan and the treasurer of the Delaware County Republican Executive Committee. In yet another role, he represented the Delaware County Board of Elections in a dispute regarding Charlotte Hummel, a Democratic candidate for reelection to the Board from Landsdowne. The dispute reached the Supreme Court of Pennsylvania, where Hummel ultimately prevailed on October 14, 2005. The relief granted allowed Hummel to reclaim her seat on the Board.
Hummel’s election dispute involved Raymond Santarelli, a lawyer at the firm of Elliot, Greenleaf & Siedzikowski, P.C. (“EGS”), who filed an amicus brief for the Delaware County Democratic Party in support of Hummel. EGS also specializes in the transactional legal work involved in the sale of municipal tax liens. In fact, MRS recommends the firm’s services to municipalities that require a special counsel for the intricacies of the sale. In MRS’s view, “there is only one firm [— EGS — ] that made the investment ... to be qualified to do” delinquent tax lien work. (Id. at 1067). In each delinquent tax lien sale involving MRS, EGS has been hired as the municipality’s special counsel. Here, the parties agree that EGS stood to eara fees from an agreement between MRS and the District.2
On October 24, 2005, the Board was set to vote on a “move forward resolution” regarding the delinquent tax lien sale, which stated that the Board “accepted] the recommendation of the administration [of the District] to sell all of ... [its] past real estate tax liens ... to ... MRS[ ],” and authorized the administration to take the necessary steps “to undertake the sale.” (Id. at 1590.) Otto, the Board members, and Howell (MRS’s founder) all viewed the resolution as a step toward further negotiation with MRS, rather than an approval of the sale itself. (See, e.g., id. at 969 (Otto stating that the resolution was simply the next step in “evaluating] the [MRS] proposal”); id. at 1079 (Howell describing it as “preliminary to a final approval”); id. at 1323 (Board member stating that “basically all the move forward resolution was meant to do was to tell the administration ... to start negotiating with [MRS].”).) Several days prior to the Board meeting, McBlain heard about what he believed to be the advanced state of the District’s negotiations with MRS.
Consequently, McBlain attended the October 24 Board meeting to express his opposition to the delinquent tax lien sale.3 He did so — as the parties agree — in his capacity as the Aldan Borough Council’s liaison to the Board. He voiced his concerns with the MRS deal generally, and the move forward resolution specifically, at the public “pre-session” to the Board meeting. Then, at the meeting, McBlain rose to speak during the time allotted for public comment. He stated, in relevant part:
*822I want to speak to you about ... a proposed resolution ... to move forward to sell certain tax claims. I ask you to vote against this proposed resolution tonight. This is nothing more than loan sharking with attorneys’ fees, that’s all it is....
Before moving forward, I would also ask the [B]oard to tell us what are the attorneys’ fees, how many attorneys will be representing the ... District and ... what other attorneys will be getting paid as a result of this, and who are those attorneys?
H* 5¡í Hi
You know once you get into [the structure of the deal and the fees included], now you’re talking loan sharking money. Loan sharking with attorneys’ fees is all this is.
(Id. at 831-32.) Board president John McKelligot heard McBlain’s comments, “sort of perked up, and ... thought, oh, another night of vigorous public comment in the William Penn School District.” (Id. at 1286.) Board member Diane Leahan had a different reaction, rising to respond to McBlain and stating: “[T]o turn around and call this company a loan shark is, in my opinion, trouncing on slander, and I think it’s a disgrace.” (Id. at 1283.)
McBlain’s comments had no discernable effect on the “move forward” resolution vote, which took place later in the meeting. Seven Board members voted in favor of the resolution, including Robert Reardon who was Aldan Borough’s representative on the Board. Only McKelligot voted against the resolution, and his undisputed deposition testimony indicates that he opposed selling delinquent tax liens from the outset.4
Despite the Board’s approval of the resolution, the business relationship between MRS and the District did not “move forward.” Otto was unresponsive to MRS’s continuing efforts to consummate the delinquent tax lien sale. In his words, the costs of the deal turned out to be “double ... what [he] thought they were,” (id. at 975), and the District’s administration lost interest. Another Board member, by contrast, simply “assumed that somebody had basically pulled the plug on something.” (Id. at 1397.) To date, the District has not entered into a delinquent tax lien sale agreement with MRS or any of its competitors.
MRS filed this action, alleging that McBlain’s comments and the subsequent loss of business constituted impermissible retaliation for protected First Amendment activity; that the treatment it received relative to its competitors violated equal protection; that the reputation and property damages it suffered ran afoul of substantive and procedural due process protections; and that McBlain’s comments amounted to commercial disparagement under Pennsylvania law. MRS also sought to recover against Aldan Borough, assertting a Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), claim that the Borough fostered a customary disregard of constitutional rights. The District Court partially granted Defendants’ Federal Rule of Civil Procedure 12(b)(6) motion, dismissing the substantive and procedural due process counts. The Court subsequently granted Defendants’ motion for summary judgment on the First Amendment retaliation, equal protection, and Monell counts, and dismissed MRS’s state claim without prejudice.
On appeal, MRS contends that summary judgment was improperly granted because the District Court’s analysis involved several errors of law. It also contends that it *823adequately pled both procedural and substantive due process violations.
II. Discussion
We have jurisdiction over a final order of the District Court pursuant to 28 U.S.C. § 1291, and “[o]ur standard of review of a grant of summary judgment is plenary.” Gardner v. State Farm Fire & Cas. Co., 544 F.3d 553, 557 (3d Cir.2008); see McTernan v. City of York, 564 F.3d 636, 646 (3d Cir.2009) (“we review the facts in the light most favorable to the nonmoving party”). We similarly “exercise plenary review of the District Court’s order granting defendant’s motion to dismiss.” Fellner v. Tri-Union Seafoods, L.L.C., 539 F.3d 237, 242 (3d Cir.2008).
A. Qualified Immunity
McBlain contends that he is shielded from liability by qualified immunity, and it is through that prism that we will address the merits of MRS’s arguments. “The doctrine of qualified immunity protects government officials ‘from liability for civil damages insofar as their conduct does not violate clearly established ... constitutional rights of which a reasonable person would have known.’ ” Pearson v. Callahan, — U.S. -, 129 S.Ct. 808, 815, 172 L.Ed.2d 565 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). It reflects the “need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.” Id. In Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001), the Supreme Court mandated a two-step qualified immunity analysis— first, whether “the facts alleged show that the [official’s] conduct violated a constitutional right,” and, second, whether the right, if violated, “was clearly established.” In Pearson, the Court backed away from the previously-mandated sequence, stating, “while the sequence set forth [in Saucier ] is often appropriate, it should no longer be regarded as mandatory.” 129 S.Ct. at 818. We nonetheless begin by determining whether, given the facts in the record, MRS can establish a constitutional violation. Because it cannot, we need not proceed further.
B. First Amendment Retaliation
A public official “may not deny a benefit to a person on a basis that infringes his constitutionally protected ... interest in freedom of speech.” Perry v. Sindermann, 408 U.S. 593, 597, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972). Otherwise, the official could indirectly “penalize and inhibit[ ]” the exercise of “constitutionally protected speech,” a result which he “could not command directly.” Id. (quotation marks and citation omitted). MRS contends that, in retaliation for its indirect association with the politically-active EGS law firm, McBlain used his local government post to disparage its business.5
“In general, constitutional retaliation claims are analyzed under a three-part test. Plaintiff must prove (1) that [it] engaged in constitutionally-protected activity; (2) that the government responded with retaliation; and (3) that the protected activity caused the retaliation.” Eichenlaub v. Twp. of Indiana, 385 F.3d 274, 282 (3d Cir.2004). The threshold requirement, *824then, is that MRS must “identify the protected activity that allegedly spurred the retaliation.” Id. We question whether it has done so, as the protected activity to which MRS points is its “association with ... an attorney for the Democratic party.” (Appellants’ Br. at 32.) The parties do not address whether a business that recommends the services of a politically-active law firm has engaged in protected conduct, and the matter was likewise unaddressed by the District Court.
Instead, the District Court focused on whether MRS was retaliated against, and concluded that it was not. The Court construed MRS’s claim as if it were “a claim against the [Board] because MRS argues that ... McBlain wielded such influence over the [Board] that his criticizing MRS effectively” ended its chances of landing the delinquent tax lien sale contract. (App. at 17 n. 8.) Thus, the Court held that even if McBlain “stymied [MRS’s] effort to contract with the [District] for impermissible political reasons,” his actions would not constitute retaliation because MRS did not have “a pre-existing business relationship with the [District].” (Id. at 17.) See Bd. of County Comm’rs, Wabaunsee County v. Umbehr, 518 U.S. 668, 685-86, 116 S.Ct. 2342, 135 L.Ed.2d 843 (1996) (“recognizing] the right of independent government contractors not to be terminated for exercising their First Amendment rights” but expressly not addressing “the possibility of suits by bidders or applicants for new government contracts who cannot rely on” a “pre-existing commercial relationship with the government”); McClintock v. Eichelberger, 169 F.3d 812, 817 (3d Cir.1999) (declining, in dicta, to extend Umbehr to allegations of retaliation absent a “preexisting commercial relationship with the public entity”).
MRS contends that the “retaliatory action was the attack by McBlain” at the October 24 Board meeting, “not the [Board’s] failure to award a contract,” and that this distinction allows it to establish a claim of retaliation. (Appellant’s Br. at 33.) Its contention fails. To amount to retaliation, the conduct must be “sufficient to deter a person of ordinary firmness from exercising his First Amendment rights.” McKee v. Hart, 436 F.3d 165, 170 (3d Cir.2006) (quotation marks and citation omitted). In certain circumstances, such as those of public employees, that threshold is quite low. See, e.g., O’Connor v. City of Newark, 440 F.3d 125, 128 (3d Cir.2006) (“A First Amendment retaliation claim will lie for any individual act which meets this ‘deterrence threshold,’ and that threshold is very low: as we [have stated] ... a cause of action is supplied by all but truly de minimis violations”) (citation omitted); Suppan v. Dadonna, 203 F.3d 228, 235 (3d Cir.2000) (holding that “a campaign of petty harassments” against a public employee is sufficient to establish retaliation) (quotation marks and citation omitted). Where, however, the alleged retaliatory act is a speech by a public official on a matter of public concern, other considerations are in play. See Suarez Corp. Indus, v. McGraw, 202 F.3d 676, 687 (4th Cir.2000); see also McKee, 436 F.3d at 170 (favorably citing Suarez). “Not only is there an interest in having public officials fulfill their duties, a public official’s own First Amendment speech rights are implicated.” Suarez, 202 F.3d at 687; see X-Men Sec., Inc. v. Pataki, 196 F.3d 56, 70 (2d Cir.1999) (stating that the First Amendment “protects] the legislator’s right to state publicly his criticism of the granting of ... a contract to a given entity and to urge the administrators that such an award would contravene public policy”); Penthouse Int’l, Ltd. v. Meese, 939 F.2d 1011, 1016 (D.C.Cir.1991) (“If the First Amendment were thought to be violated any time a private citizen’s speech or writings were criticized by a government *825official, those officials might be virtually immobilized.”). Similarly stated, a “limitation on the retaliation cause of action based on [a public official’s] speech is necessary to balance the [official’s] speech interests with the plaintiffs speech interests.” The Baltimore Sun Co. v. Ehrlich, 437 F.3d 410, 417 (4th Cir.2006).
“Thus, where a public official’s alleged retaliation is in the nature of speech, in the absence of a threat, coercion, or intimidation intimating that punishment, sanction or adverse regulatory action will imminently follow, such speech does not adversely affect a [company’s] First Amendment rights, even if defamatory.” Suarez, 202 F.3d at 687 (emphasis added). Here, while MRS alleges that McBlain “exerted ‘pressure’ on the decisionmakers, there is no allegation that such ‘pressure’ took the form of anything other than speech.” X-Men Sec., 196 F.3d at 71. Perhaps McBlain over-spoke in expressing his opposition to the delinquent tax lien sale by equating MRS with a loan shark. His words, however, were “obviously used here in a loose, figurative sense, to demonstrate ... strong disagreement,” Old Dominion Branch No. 496, National Association of Letter Carriers v. Austin, 418 U.S. 264, 284, 94 S.Ct. 2770, 41 L.Ed.2d 745 (1974), and were part and parcel of what we have described as the “often treacherous waters of government contracting.” Boyanowski, 215 F.3d at 404; cf. Greenbelt Coop. Publ’g Ass’n v. Bresler, 398 U.S. 6, 14, 90 S.Ct. 1537, 26 L.Ed.2d 6 (1970) (“even the most careless [listener] must have perceived that the [expression] was no more than rhetorical hyperbole”). Even assuming MRS can establish protected First Amendment activity, that activity is not a shield against criticism from public officials unless the criticism strays into “threats, intimidation or coercion.” See X-Men Sec., 196 F.3d at 71. McBlain’s comments did not reach that level, and they cannot form the basis of a First Amendment retaliation action.
C. Equal Protection
MRS also asserts that the District Court erred in granting summary judgment in favor of McBlain on its “class of one” equal protection claim. To recover, MRS must, “at the very least,” establish “that (1) the defendant treated [it] differently from others similarly situated, (2) the defendant did so intentionally, and (3) there was no rational basis for the difference in treatment.” Hill v. Borough of Kutztown, 455 F.3d 225, 239 (3d Cir.2006). “Persons are similarly situated under the Equal Protection Clause when they are alike in all relevant aspects.” Startzell v. City of Phila., 533 F.3d 183, 203 (3d Cir.2008) (quotation marks and citation omitted); see Safeguard Mut. Ins. Co. v. Miller, 472 F.2d 732, 733 (3d Cir.1973) (corporations are “deemed to be persons within the meaning of the [E]qual [Protection and [D]ue [P]rocess [Clauses of the [Fourteenth [A]mendment”). In MRS’s view, it was similarly situated to Xspand, a delinquent tax lien purchasing company that was treated differently by McBlain.
We note that on October 24, 2005, the Board was only voting on whether to “move forward” with a delinquent tax lien sale proposal put forth by MRS. Because Xspand did not have a proposal before the Board, McBlain’s failure to speak out against Xspand’s business model cannot be considered unequal treatment. MRS also asserts that McBlain’s approval of the City of Chester and Chester Upland School District delinquent tax lien sale constituted unequal treatment. The District Court properly concluded otherwise, explaining, first, that “there is no evidence that ... McBlain personally supported the Chester/Xspand agreement or that he took any *826action, beyond what was required of him as solicitor of Delaware County to advance the transaction.” (App. at 13.) Second, the Court accurately described why MRS’s dealings with the Board and Xspand’s dealings with Chester were not “alike in all relevant aspects”:
McBlain was neither the elected representative nor attorney for any party with a stake in the success of the Chester/Xspand agreement. In contrast, the [Board] resolution directly impacted ... McBlain’s constituents on a budgetary matter of concern to him as [an] elected official. Accordingly ... McBlain’s treatment of Xspand in the Chester transaction cannot be compared to his treatment of MRS’ proposal to the [Board]....
{Id. at 13.)
D. Procedural & Substantive Due Process
The District Court’s dismissal of MRS’s substantive and procedural due process claims was likewise proper, as MRS did not allege a protected interest. “To state a claim under § 1983 for deprivation of procedural due process rights, a plaintiff must allege that (1) he was deprived of an individual interest that is encompassed within the Fourteenth Amendment’s protection of ‘life, liberty, or property,’ and (2) the procedures available to him did not provide ‘due process of law.’ ” Hill, 455 F.3d at 233-34 (citation omitted). MRS argues that McBlain’s actions deprived it of its “constitutionally protected [property] right to continued business.” (Appellant’s Br. at 48.) It is, however, quite clear that the possibility of a future contract with a municipality is not a property interest that warrants procedural due process protection. See Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972) (“To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it.”); Indep. Enter., Inc. v. Pittsburgh Water & Sewer Auth., Inc., 103 F.3d 1165, 1178 (3d Cir.1997) (“[0]ne who bids on a public contract has no legitimate expectation of receiving it until the contract is actually awarded.”). MRS also cannot establish a protected liberty interest, as “[b]y now, it is clear that reputation alone is not an interest protected by the Due Process Clause.” Dee v. Borough of Dunmore, 549 F.3d 225, 234-35 (3d Cir.2008) (emphasis in original) (quotation marks and citations omitted). Instead, “to make out a due process claim for deprivation of a liberty interest in reputation, a plaintiff must show a stigma to his reputation plus deprivation of some additional right or interest,” id. (emphasis in original) (quotation marks and citations omitted), and the loss of a business opportunity is insufficient to establish the latter “plus” requirement. See Sturm v. Clark, 835 F.2d 1009, 1012-13 (3d Cir.1987) (“[Financial harm resulting from government defamation alone is insufficient to transform a reputation interest into a liberty interest” because “[m]ost, if not all, charges of defamation are inevitably accompanied by financial loss.”).
Nor can MRS establish a fundamental property or liberty interest worthy of substantive due process protection. See Nicholas v. Penn. State Univ., 227 F.3d 133, 142 (3d Cir.2000). The ability to compete for municipal contracts is not a fundamental property interest, Independent Enterprises, 103 F.3d at 1180, and “defamatory statements that curtail a plaintiffs business opportunities [do not] suffice to support a substantive due process claim.” Boyanowski, 215 F.3d at 400. *827Thus, even if we were to accept for the sake of argument that McBlaine’s remarks were defamatory, MRS’s due process arguments fail.
E. Monell
Finally, the District Court properly concluded that there is no genuine issue of material fact as to whether MRS can establish that “through its deliberate conduct, [Aldan Borough] was the ‘moving force’ behind the [constitutional] injuries] alleged.” Bd. of County Comm’rs of Bryan County v. Brown, 520 U.S. 397, 404, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997) (emphasis in original). “For § 1983 liability to attach, [MRS] must show that the [Borough] was responsible for any constitutional violations.” Startzell, 533 F.3d at 204; see id. (“/FJor there to be municipal liability, there ... must be a violation of [MRS’s] constitutional rights.”) (quotation marks and citations omitted). Because MRS’s rights were not violated, we need not further address the claim against Aldan Borough — “[i]t too was properly dismissed.” Id.6
III. Conclusion
For the foregoing reasons, we will affirm the District Court’s orders of March 20, 2007, 2007 WL 879004, and August 4, 2008, 2008 WL 2973852, which, taken together, dispose of MRS’s claims against McBlain and Aldan Borough.
. The primary attraction of the potential delinquent tax lien sale was the prospect of an up-front payment. MRS proposed to pay the District ninety percent of the value of delinquent tax liens that had been outstanding for four years or less in one lump-sum. Xspand, by contrast, “would purchase the delinquent [tax liens only] after [it] performed a comprehensive review of all outstanding delinquent properties,” and its initial review indicated that its up-front payment would be calculated only on the basis of liens that had been outstanding for three years or less. (Id. at 785.)
Portnoff was interested only in the prospective collection of delinquent tax liens. Accordingly, the firm did not offer an up-front payment, and its proposal was not seriously considered.
. EGS represents MRS in the present case.
. On the same day, the City of Chester and the Chester Upland School District’s delinquent tax lien sale agreement was finalized with Xspand. MRS contends, but the record does not establish, that Xspand is financially allied with McBlain's partisan interests.
. Board member Dorothy Reed was absent. (App. at 1613.)
. We need not address whether a corporation, like MRS, is entitled to the same protection as a private individual against First Amendment retaliation, as the parties have not briefed the issue and it does not affect our holding. We note, however, that there is no doubt that MRS may assert constitutional claims on its own behalf. See, e.g., Addiction Specialists, Inc. v. Twp. of Hampton, 411 F.3d 399, 407 n. 6 (3d Cir.2005) (collecting cases).
. MRS also contends that its discovery of McBlain's telephone records was improperly limited to three months before and three months after the October 24 Board meeting. We note that "questions concerning the scope of discovery are among those matters which should be almost exclusively committed to the sound discretion of the [District [C]ourt, and we see no reason to disturb the [C]ourt’s discovery ruling here." Molthan v. Temple Univ., 778 F.2d 955, 958 (3d Cir.1985) (quotation marks and citations omitted).
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OPINION
McKEE, Circuit Judge.
Dwight A. Penberth appeals the district court’s order1 granting the defendants’ motion for summary judgment on his 42 U.S.C. § 1983 claims. Penberth alleged that the Borough of Lansford and its May- or and Chief of Police, violated his rights under the First and Fourth Amendments to the Constitution by interfering with his right of association and by unlawfully seizing his person and property. For the reasons that follow, we will affirm the decision of the district court.
I.
Because we write primarily for the parties, we will recite only as much of the facts and history of this case as is necessary for our decision.2
*829Penberth alleges violations of 42 U.S.C. § 1983 and other state law claims. His claims under § 1983 include malicious prosecution and improper seizure of his property in violation of the Fourth Amendment, and that defendants’ actions violated his First Amendment right to association by interfering with his relationship with his father. Our standard of review is plenary. Johnson v. Knorr, 477 F.3d 75, 81 (3d Cir.2007).
II.
As the district court explained, in order to maintain a malicious prosecution claim under the Fourth Amendment, Penberth must show: (1) the defendant initiated a criminal proceeding; (2) that proceeding ended in Penberth’s favor; (3) the defendant initiated the proceeding without probable cause; (4) the defendant acted maliciously or for a purpose other than bringing Penberth to justice; and (5) Pen-berth suffered deprivation of liberty consistent with the concept of seizure as a consequence of a legal proceeding. Johnson, 477 F.3d at 82-83 (citing Estate of Smith v. Marasco, 318 F.3d 497, 521 (3d Cir.2003)). Here, defendants did initiate a criminal proceeding that ended in Pen-berth’s favor. However, the parties dispute the existence of probable cause. The district court did not reach that issue because it decided that Penberth did not present facts sufficient to show that he suffered a deprivation of liberty consistent with the concept of seizure. We agree.
We have held that where a defendant was required “to post a $10,000 bond, ... to attend all court hearings[,] ... to contact Pretrial Services on a weekly basis ..., and ... was prohibited from traveling outside New Jersey and Pennsylvania ... [although it is a close question, ... these restrictions amounted to a seizure.” Gallo v. City of Philadelphia, 161 F.3d 217, 222 (3d Cir.1998). However, we have also held that where plaintiffs “were only issued a summons; ... were never arrested; ... never posted bail; ... were free to travel; and ... did not have to report to Pretrial Services” they were not subject to a “seizure” within the meaning of the Fourth Amendment. DiBella v. Borough of Beachwood, 407 F.3d 599, 603 (3d Cir.2005).
Penberth was detained for 35 to 40 minutes. “[H]e did not have to post bail [or] communicate with pre-trial services, and he had no travel or geographic restraints placed on him.” Penberth v. Krajnak, No. 06 Civ. 1023, 2008 WL 509174, * 18 (M.D.Pa. Feb. 21, 2008). As we stated in DiBella, “[i]f Gallo was a ‘close question;’ here there could be no seizure significant enough to constitute a Fourth Amendment violation in support of a Section 1983 malicious prosecution action.” 407 F.3d at 603.
The requirement of a constitutional harm applies equally with respect to all defendants. Accordingly, we will affirm the district court’s grant of summary judgment with respect to Penberth’s § 1983 claim for unlawful seizure of his person against all defendants.
III.
There is scant support for Penberth’s claim that he alleged facts sufficient to sustain a § 1983 claim for seizure of his car or the police equipment in the car in violation of the Fourth Amendment. He argues that: “through the arrest, Defendants secured what they could not have secured in civil court — a return of property lawfully sold and belonging to Plaintiff.” Appellant Br. at 18. Defendants argue that Penberth waived this claim because he failed to plead it in his complaint.
Whether or not Penberth preserved this claim, the undisputed evidence “shows only that, as part of the agreement *830to withdraw the charges against Plaintiff, Plaintiff was required to bring his car to Krajcirik’s Garage on October 7, 2005 so that the police equipment could be removed from it.” Penberth, 2008 WL 509174 at * 18. Penberth voluntarily brought the car to the agreed upon location and surrendered the equipment. Moreover, Penberth does not argue that the police equipment stripped from the police car somehow belonged to him. Nor does Penberth seek return of those items. Accordingly, we will affirm the district court’s dismissal of Penberth’s § 1983 claim for seizure of his property in violation of his Fourth Amendment rights.
IV.
Finally, Penberth attempts to materialize a claim under § 1983 by arguing that defendants interfered with his relationship with his father in violation of his First Amendment right “to enter into and maintain certain intimate human relationships.” Doe v. City of Butler, 892 F.2d 315, 323 (3d Cir.1989) (quoting Roberts v. United States Jaycees, 468 U.S. 609, 617, 104 S.Ct. 3244, 82 L.Ed.2d 462 (1984)). Specifically, he alleges that defendants brought charges against him and inflated those charges in order to cause a rift between him and his father. The district court held that plaintiff failed to produce evidence showing how defendants actions interfered with his relationship with his father. Penberth, 2008 WL 509174 at * 23. We agree; in fact, the argument is strained at best.
To morph his allegations into a claim under the First Amendment, the record must contain sufficient evidence that state action “directly and substantially” interfered with Penberth’s relationship -with his father. See Lyng v. Castillo, 477 U.S. 635, 638, 106 S.Ct. 2727, 91 L.Ed.2d 527 (1986). Although Penberth discusses defendants’ intent to embarrass his father, there is nothing on this record that would raise a material issue of fact about any interference whatsoever with that relationship. Moreover, the Supreme Court has upheld policies with a far more obvious and significant impact on familial ties than appears on this record. See Lyng, 477 U.S. at 638, 106 S.Ct. 2727 (holding that law lowering food stamp allotments for certain family members living together below levels they would have received if they lived separately or were unrelated does not directly and substantially burden the right to association); see also Califano v. Jobst, 434 U.S. 47, 58, 98 S.Ct. 95, 54 L.Ed.2d 228 (1977) (upholding termination of Social Security benefits for a disabled dependent child who marries someone ineligible for benefits). Accordingly, we will affirm the district court’s dismissal of Penberth’s § 1983 claim for interference with his right to association in violation of his First Amendment rights.
V.
For the above reasons, we will affirm the order of the district court.
. Pursuant to 28 U.S.C. § 636(c), the parties consented to having Magistrate Judge Thomas M. Blewitt decide this motion. As Magistrate Judge Blewitt's order has the power and effeet of an order of a district court, we will refer to it accordingly herein.
. We will refer to the plaintiff as Penberth and his father as Penberth, Sr.
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*843OPINION OF THE COURT
PER CURIAM.
Hsaio T. Huang is a native and citizen of the People’s Republic of China who entered the United States without inspection on August 11, 2004. He was placed in removal proceedings for entering the United States without valid entry documents pursuant to INA § 212(a)(7)(A)(i)(l). He conceded removability and applied for asylum, withholding of removal, and relief under the Convention Against Torture (CAT), claiming that he had a well-founded fear that, if he returned to China, he would be persecuted if he practiced Falun Gong and he would be persecuted and questioned about his association with his sister, a senior Falun Gong practitioner who left China in 2000.
After a hearing, the IJ found Huang to be incredible, denied all relief, and ordered him removed to China. Among other things, the immigration judge found it implausible that Huang could not obtain corroborating documentation of his Falun Gong practice from his sister or his mother.1 The IJ also determined that, even if Huang was credible, there was no evidence of past persecution and Huang failed to demonstrate a reasonable fear of future persecution based on his sister’s practice of Falun Gong. The BIA affirmed the IJ’s decision and dismissed the appeal on March 11, 2008. Huang did not file a petition for review.
On April 9, 2008, Huang filed a motion to reopen accompanied by a letter from his mother dated March 26, 2008, and copies of two summonses indicating that “The Public Security Bureau of Lianjiang County of Fujian Province” required the attendance of Huang and his sister “for investigation” at the Bureau on March 24, 2008. In her letter, Huang’s mother stated that her previous letters to the IJ could not be delivered to the United States because they got lost or were confiscated by Chinese authorities. She stated that the Chinese authorities typically investigated Falun Gong members “[ejvery New Year.” She said that when Huang and his sister were still in China, two village cadres and a local police officer came to her home regularly to speak to Huang’s sister, and that in 2000, they wanted to question Huang about his sister. According to Huang’s mother, after Huang and his sister fled, the police come to her home looking for Huang and his sister “every another period of time.” On March 21, 2008, two policemen came to her house and left summonses for Huang and his sister. She said that Huang would suffer persecution and would be jailed if he returned to China.
The BIA denied the motion to reopen, holding that Huang failed to show that a letter from his mother was not available prior to his hearing in 2007. The Board found inconsistencies in the mother’s let*844ter, Huang’s affidavit accompanying his motion to reopen, and his hearing testimony, which undermined his claim that information from his mother corroborating his claim could not have been submitted in the removal proceedings. Specifically, the Board noted that both Huang’s affidavit in support of his motion to reopen and his mother’s letter indicated that she had written more than one letter to the immigration court and that Huang did not receive them possibly because the letters were lost or confiscated by Chinese authorities. At his removal hearing, however, Huang testified that his mother sent only one letter, addressed to Huang, which he did not receive because he had moved to another city. The Board further noted that, according to Huang’s hearing testimony, he was in telephone contact with his mother, and, thus, he could have obtained a letter from her prior to his hearing.
As for the merits of the motion to reopen, the BIA ruled that Huang failed to show prima facie eligibility for asylum or other relief. The Board determined that the mother’s letter was entitled to little weight as corroborating evidence because it was “vague and self-serving” about the visits by local police to her home after Huang and his sister fled, and because the letter contradicted Huang’s hearing testimony. In particular, the Board noted that Huang testified to only one visit to his home by local Chinese authorities in 2000; he made no mention of the visits by local police officers that his mother reported had occurred after Huang and his sister fled China. The BIA observed that the public summonses dated March 21, 2008, were unauthenticated and were otherwise lacking any indicia of reliability. The Board held that, even assuming the authenticity and reliability of the summonses, the fact that Huang was wanted for questioning did not amount to persecution as that term is defined under immigration law. Huang filed this timely petition for review.
The only issue before us is the BIA’s order, entered on July 30, 2008, denying Huang’s motion to reopen. We have jurisdiction under 8 U.S.C. § 1252(a) to review the BIA’s denial of a motion to reopen. We review the BIA’s denial of the motion on the ground that no new evidence was presented for abuse of discretion. Sevoian v. Ashcroft, 290 F.3d 166, 170 (3d Cir.2002). As for the BIA’s denial of the motion on the ground that Huang failed to make a prima facie case for relief, we review the Board’s findings of fact for substantial evidence and its ultimate decision to deny the motion under the deferential abuse of discretion standard. Id.; see also Liu v. Att’y Gen., 555 F.3d 145, 148 (3d Cir.2009). An abuse of discretion exists if the BIA’s decision is “arbitrary, irrational, or contrary to law.” Sevoian, 290 F.3d at 174.
“There are both procedural and substantive hurdles that must be overcome in a motion to reopen removal proceedings.” Shardar v. Attorney General, 503 F.3d 308, 313 (3d Cir.2007). Proeedurally, motions to reopen generally must be filed within 90 days of the final administrative decision unless, inter alia, the motion is based on “ ‘changed circumstances arising in the country of nationality ... if such evidence is material and was not available and could not have been discovered or presented at the previous hearing[.]’ ” Id. (quoting 8 C.F.R. § 1003.2(c)(3)(ii)). If the procedural hurdle is cleared, the question becomes one of substance — whether the petitioner has shown prima facie eligibility for the requested relief. See id. That standard requires a petitioner to show a “reasonable likelihood” of ultimately prevailing on his claims. Guo v. Ashcroft, 386 F.3d 556, 563 (3d Cir.2004).
*845Huang argues that he presented previously unavailable, material evidence of ongoing persecution of Falun Gong members by local police and, in particular, of an investigation targeting him and his sister, which was initiated by Chinese authorities in March 2008, after his removal hearing had concluded. He asserts that the Board failed to give proper weight to the mother’s letter concerning the police visit in March 2008, because it was based on the erroneous conclusion that Huang’s mother did not explain why Chinese authorities were still investigating Huang’s sister more than eight years after she left the country. In support of his argument, Huang points to his mother’s explanation that investigations of suspected Falun Gong members typically occurred every Chinese New Year.
After careful consideration of Huang’s arguments on appeal, we conclude that the BIA did not abuse its discretion in finding that the mother’s letter presented evidence that was not “new.” As the Board noted, Huang could have discovered most of the information contained in his mother’s letter prior to his removal hearing. 8 C.F.R. § 1008.2(e)(1). For instance, he could have learned through phone calls with his mother that Chinese authorities were conducting yearly investigations of Falun Gong members and coming to the mother’s house looking for them, in particular, “every another period of time.”
The summonses and the information in the mother’s letter about the March 2008 police visit were not available before the hearing and, thus, the evidence is newly discovered. We conclude, however, that substantial evidence supports the BIA’s finding that Huang failed to demonstrate a reasonable likelihood that this new evidence would result in eligibility for relief. Huang’s new claim that Chinese authorities were interested in questioning him in March 2008 is linked to his original asylum claim that he would be persecuted by Chinese authorities if he practiced Falun Gong there, a claim that was rejected by the IJ and the BIA as incredible. Huang contends that the BIA erred in finding that the summonses were entitled to little or no weight because they were not properly authenticated pursuant to 8 C.F.R. § 287.6, and erred in failing to give his mother’s letter proper weight. As for the lack of authentication, Huang correctly notes that § 287.6 is not an absolute rule of exclusion. See Liu v. Ashcroft, 372 F.3d 529, 533 (3d Cir.2004). Here, however, the Board did not decide the case entirely on the conclusion that the evidence was unauthenticated. Rather, the Board also held in the alternative that, even if the summonses were genuine, Huang had not demonstrated a reasonable likelihood that he would be entitled to relief based on the new evidence. We find that there was substantial evidence to support the BIA’s conclusion that the summonses for an investigation — the focus of which was not revealed — and Huang’s mother’s information about her March 2008 encounter with Chinese authorities do not constitute persecution for asylum purposes, as the evidence does not suggest a reasonable likelihood of “threats to life, confinement, torture, [or] economic sanctions so severe that they constitute a threat to life or freedom.” Fatin v. INS, 12 F.3d 1238, 1240 (3d Cir.1993). Thus, we conclude that the BIA did not abuse its discretion in denying Huang’s motion to reopen.
Accordingly, we will deny the petition for review.
. Huang testified at the removal hearing that he did not practice Falun Gong while he was in China, but that his sister did. In 1999, when the Chinese authorities began to crack down on the Falun Gong movement, Huang's sister and her fellow practitioners practiced Falun Gong at his house while he stood guard. She fled China in 2000; she now lives somewhere in Canada. Huang was told by a woman in the village that the authorities were looking to detain him for questioning about his sister. In March 2000, the authorities came to his family's house (where he lived), while he was there. His mother talked in a loud voice to the officer, so that Huang would know to hide. After this incident, Huang called his aunt in New York City and requested her financial help in smuggling him out of the country. He denied any physical harm at the hands of the Chinese authorities while he was in China. When he was freed from detainment in San Diego, he moved to New York where he lived with his aunt and her family. In 2006, he started practicing Falun Gong regularly at his aunt’s house. He moved to Philadelphia sometime in 2006.
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OPINION
PER CURIAM.
In this consolidated appeal, Michael Ojo petitions for review of the following orders entered by the Board of Immigration Appeals (“BIA”): the BIA’s July 12, 2007 *847order affirming the Immigration Judge’s (“IJ”) decision denying his application for adjustment of status; and the BIA’s January 24, 2008 order denying his motion to reopen his removal proceedings. For the following reasons, we will deny the petitions for review.
I.
Ojo, a native and citizen of Nigeria, came to the United States in 1997 to receive medical care for a cardiac disorder, and stayed longer than permitted. In 2004, he married Wanda Cantrell, a United States citizen. Shortly thereafter, Cantrell filed an 1-30 alien relative visa petition in an effort to obtain legal permanent resident status for Ojo, and Ojo initiated proceedings to adjust his status.
In September 2005, Ojo and his wife attended an interview with the United States Citizenship and Immigration Services (“USCIS”) in Newark, New Jersey. At the hearing, Cantrell completed an “I-30 Withdrawal” form in which she stated that she wished to rescind the petition she had filed on Ojo’s behalf because their marriage was fraudulent; specifically, she stated that she had been “offered a home/ place to stay if [her] husband received a green card as a result of [their] marriage.” (AR 000154.) Consequently, Ojo’s application for adjustment of status was denied, and he was placed in removal proceedings. See INA § 237(a)(1)(B), 8 U.S.C. § 1227(a)(1)(B).
A removal hearing took place in November 2005 before IJ Pugliese. At the hearing, Ojo conceded removability but sought adjustment of status based on his marriage to Cantrell. Although Ojo’s counsel recognized that Ojo had neither an approved nor pending 1-130 visa petition, he explained to IJ Pugliese that he intended to contest USCIS’s position that Cantrell had withdrawn her petition. Ojo’s counsel also indicated that he intended to have Cantrell file a new 1-130 petition. In order to allow counsel an opportunity to take these steps, IJ Pugliese adjourned the hearing. Regarding the withdrawn 1-130 petition, the IJ suggested that counsel might be able to “work things out” with the government, but advised him that, regardless, Ojo was required to return to court with “any and all applications next time.” (AR 000128.)
Ojo’s next hearing took place on March 22, 2006 before IJ Garcy. At the hearing, the government relied on Cantrell’s “1-130 Withdrawal” form to demonstrate that the only visa petition that had been filed on Ojo’s behalf had been withdrawn. Ojo argued, however, that Cantrell’s withdrawal form should not be given legal effect because she had been coerced into signing it. IJ Garcy refused to consider this argument on the ground it lacked jurisdiction to do so.
Ojo then asked IJ Garcy to keep the proceedings open, and to move them to his current residence in Maryland, so that Cantrell could file a second 1-30 petition on his behalf. IJ Garcy denied these requests, explaining that Ojo and his wife had already been given several months to file a second 1-130 petition, but had inexplicably failed to do so.1 Accordingly, by order entered March 22, 2006, the IJ denied Ojo’s motions for a continuance and a change of venue, and entered a final order of removal.
Ojo appealed IJ Carey’s order to the BIA. Upon review, the BIA found no error in the IJ’s decision to deny relief. First, *848the BIA agreed with IJ Garcy that, to the extent that Ojo wished to challenge the voluntariness of his wife’s decision to withdrawal her 1-130 petition, his removal proceedings were not the proper place to do so. The BIA also agreed with IJ Garcy that Ojo had failed to show that he was eligible to adjust his status based on his marriage to Cantrell. Finally, the BIA agreed with IJ Garcy that, because Ojo had failed to show that he was eligible to adjust, there was no reason to grant his motions for a continuance or a change of venue. Therefore, by order entered July 12, 2007, the BIA affirmed IJ Garcy’s decision.
In October 2007, Ojo moved to reopen his case on the ground that his wife had submitted a second 1-130 visa petition shortly before the BIA issued its July 12, 2007 decision.2 As a result, Ojo argued, he was thus eligible to adjust his status. The BIA denied the motion because, among other reasons, Ojo had failed to submit a copy of his application for adjustment of status (Form 1-485) with his motion to reopen. See 8 C.F.R. § 1003.2.
Ojo now petitions for review of the BIA’s July 12, 2007, 2007 WL 2299649, and January 24, 2008, 2008 WL 486864 decisions.
II.
A. BIA’s July 12, 2007 Decision Denying Application for Adjustment of Status
[I] Ojo’s primary challenge to the BIA’s decision denying his application for adjustment of status concerns his contention that Cantrell’s “1-130 Withdrawal” form had no legal effect because she had been coerced into signing it. Specifically, Ojo contends that he was denied due process when the IJ precluded him from arguing that the coerced withdrawal was invalid, and that the “1-130 Withdrawal” form was inadmissible because it was obtained through coercion.3
IJ Garcy held that Ojo’s challenge to the legitimacy of the withdrawal was beyond her jurisdiction. On appeal, the BIA agreed, concluding that Ojo could not raise this argument in the context of his removal proceedings. We agree. Ojo does not cite, nor have we independently discerned, any authority indicating that IJ Garcy had the power to either “deem pending” Cantrell’s first 1-130 petition or to overturn the USCIS’s decision to deny Ojo’s application to adjust as a result of the withdrawal.4
Next, Ojo claims that, during his November 9, 2005 hearing, IJ Pugliese in*849formed him that he was not required to file a new 1-130 before returning to court for his next hearing because he might be able to renew the initial petition based on his coercion argument. Ojo argues that this is now “the law of the case,” and that IJ Garcy improperly penalized him for following IJ Pugliese’s advice. Contrary to Ojo’s contention, however, the record reveals that IJ Pugliese gave no such advice. Rather, at the November 9, 2005 hearing, Ojo’s attorney indicated that he intended to both contest the withdrawal of the original 1-130 application, and file a new 1-130. In response, IJ Pugliese suggested that counsel might be able to “work things out” with the government on Cantrell’s initial 1-130 petition, but advised him that, regardless, Ojo was required to return to court with “any and all applications next time.”5 (AR 000128.) Thus, the record does not support Ojo’s argument in this regard.
Ojo next argues that the BIA’s submission of his appeal to a single-member panel was arbitrary and capricious. Pursuant to 8 C.F.R. § 1003.1(e), all appeals are assigned to a single Board member for disposition, “[ujnless a case meets the standards for assignment to a three-member panel under paragraph (e)(6) of this section.” Paragraph (e)(6), in turn, provides, inter alia, that:
Cases may only be assigned for review by a three-member panel if the case presents ... [t]he need to establish a precedent construing the meaning of laws, regulations, or procedures; [t]he need to review a decision by an immigration judge ... that is not in conformity with the law or with applicable precedents; [t]he need to resolve a case or controversy of major national import; ... [or t]he need to reverse the decision of an immigration judge....
8 C.F.R. § 1003.1(e)(6).
Here, the BIA dismissed Ojo’s appeal because he had failed to establish prima facie eligibility for relief. Therefore, Ojo’s case did not meet the criteria for submission to a three-member panel. Accordingly, it was not an abuse of discretion for a single-member panel to review his appeal.6
Finally, Ojo claims that the BIA erred by denying his motion for a change of venue, and affirming IJ Garcy’s denial of his motion for a change of venue, on the ground that he had not filed a new 1-130 petition before seeking to change venue. Ojo argues that this requirement was improper because the Immigration Court Practice Manual does not require any applications or copies of applications to be filed with a change of venue motion. The record reflects, however, that the BIA declined to move the case to Maryland because Ojo had failed to establish prima facie entitlement to the underlying relief, not because filing a new 1-130 was a procedural prerequisite for a change of venue motion. Therefore, this argument also fails.
B. BIA’s January 21, 2008 Decision Denying the Motion to Reopen
We review the BIA’s denial of the motion to reopen for abuse of discretion, affording broad deference to the BIA’s *850decision. Ezeagwuna v. Ashcroft, 325 F.3d 396, 409 (3d Cir.2003). Therefore, in order to obtain relief, Ojo must show that the BIA’s decision to deny reopening was arbitrary, irrational, or contrary to law. See Tipu v. INS, 20 F.3d 580, 582 (3d Cir.1994).
Upon review, we conclude that the BIA did not abuse its discretion in denying Ojo’s motion to reopen. The applicable regulations specify that an alien seeking to reopen proceedings in order to submit an application for relief must submit a copy of “the appropriate application for relief and all supporting documentation.” 8 C.F.R. § 1003.2; see also In re Yewondwosen, 21 I. & N. Dec. 1025, 1026 (BIA 1997) (“[A] failure to submit an application for relief ... will typically result in the Board’s denial of the motion.”). Thus, in order to obtain reopening, Ojo was required to submit to the BIA his 1-485 application for adjustment of status. The record reflects that he failed to do so. As a result, the BIA did not abuse its discretion in denying relief.7
We have reviewed Ojo’s remaining arguments and conclude that they are without merit.8 Therefore, we will deny the petitions for review.9
. During the hearing, Ojo’s attorney sought a short recess in order to contact Cantrell so that she could confirm to the court that she did indeed intend to file a second 1-130 petition on Ojo's behalf. IJ Garcy granted the request, but counsel was unable to reach Cantrell, who was living in Kentucky at the time.
. Ojo also renewed his motion for a change of venue.
. We have jurisdiction over Ojo’s claims of legal and constitutional error pursuant to 8 U.S.C. § 1252(a)(2)(D).
. In support of his argument that the BIA should have "deemed pending" Cantrell’s first 1-130, Ojo relies upon an Illinois District Court decision in a civil action brought against INS under the Administrative Procedure Act, 5 U.S.C. § 701 et seq., in which the court held that it was potentially empowered to declare void an allegedly coerced withdrawal of a visa petition in violation of the plaintiff's constitutional rights. Boukhris v. Perryman, 2002 WL 193354 at *2, n. 1 (N.D.Ill. Feb.7, 2002). That case, however, did not arise on a petition for review of a BIA decision, and did not address whether the BIA had jurisdiction to consider the validity of the withdrawal in the context of removal proceedings. In support of his objection to the admissibility of the "1-130 Withdrawal” form, Ojo cites the Supreme Court’s decision in INS v. Lopez-Mendoza, 468 U.S. 1032, 104 S.Ct. 3479, 82 L.Ed.2d 778 (1984), for the proposition that "[ejvidence obtained through coercion is inadmissible." Lopez-Mendoza. is, however, inapposite, as it pertains to evidence gathered in violation of the Fourth Amendment. Id. at 1051, 104 S.Ct. 3479.
. Ojo contends IJ Pugliese was referring to applications "other than ones related to marriage-based adjustment” — such as an application for asylum — when he instructed Ojo to have "any and all applications” ready at the next hearing. (Reply Br. 2-3.) Contrary to Ojo's contention, however, the transcript of the hearing clearly demonstrates that IJ Pugliese adjourned the hearing so that Ojo could prepare an application for whatever type of relief he sought, whether such application be based on Cantrell's original 1-130 petition or another basis for relief. (AR 000128-129.)
. Furthermore, although Ojo claims that he requested a three-member panel in his notice of appeal, the record does not appear to contain any such request. (AR 00095-99.)
. Ojo argues that the BIA abused its discretion by requiring him to present clear and convincing evidence of the bona fides of his marriage under its decision in Matter of Velarde-Pacheco, 23 I. & N. Dec. 253 (BIA 2002). We need not reach this issue because, as noted above, we believe that the BIA acted within its discretion in denying the motion on an alternative basis.
. Ojo also argues that his removal would violate his rights under the American Declaration of the Rights and Duties of Man, general precepts of international human rights law, and the constitutional prohibition against cruel and unusual punishment because he has a serious cardiac condition for which he cannot receive care in Nigeria. Notably, however, Ojo failed to raise these arguments before the BIA. As a result, this court lacks jurisdiction to review them. See 8 U.S.C. § 1252(d)(1) (exhaustion of administrative remedies is mandatory and jurisdictional); Bonhometre v. Gonzales, 414 F.3d 442, 447 (3d Cir.2005).
.The Motion to Supplement the Record on Appeal and the Second Motion to Supplement the Record on Appeal and Urgent Request for an Expedited Decision are denied.
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OPINION
PER CURIAM.
Philip Johnson sued the City of New York, agencies of the City of New York, including the New York Administration for Children’s Services (“ACS”), and ACS case workers. He brought claims under 42 U.S.C. §§ 1983, 1985(3), and 1986, alleging that the defendants violated his rights when ACS conducted emergency removals of his children from his home in June 2002 and March 2004 based on allegations of abuse and neglect.
Some of the defendants filed a motion to dismiss the complaint, arguing, inter alia, that the complaint was barred by the doctrines of res judicata and Rooker-Feldman.1 After reviewing Johnson’s complaint against the previous actions he filed in federal court in New York Johnson v. Queens Admin, for Children’s Sens., No. 02-cv-04497, 2006 WL 229905 (E.D.N.Y. Jan.31, 2006) (“Johnson I ”) and Johnson v. New York, No. 04-cv-01070, 2007 WL 764514 (E.D.N.Y. Mar.9, 2007) (“Johnson II ”), the District Court dismissed the complaint against all the defendants on res judicata grounds. See Day v. Moscow, 955 F.2d 807, 811 (2d Cir.1992) (holding that a res judicata defense may be raised in a motion to dismiss when the defense is apparent on review of court records of which a court can take notice). The District Court also concluded that the Rook-er-Feldman doctrine barred review to the extent that Johnson challenged issues already adjudicated in state court. Johnson appeals.
We have jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review over the District Court’s decision. See Venuto v. Witco Corp., 117 F.3d 754, 758 & n. 5 (3d Cir.1997) (“Our review of the district court’s application of res judicata rules ... is plenary.”); Turner v. Crawford Square Apts. III, L.P., 449 F.3d 542, 547 (3d Cir.2006) (“Our review of the district court’s application of the Rooker-Feldman doctrine is plenary.”)
On review, we conclude that the District Court properly dismissed Johnson’s com*852plaint. To determine the preclusive effects of a prior judgment, we look to the law of the issuing court. See Paramount Aviation Corp. v. Agusta, 178 F.3d 132, 145 (3d Cir.1999). The issuing courts were federal courts (sitting within the Second Circuit), where, to prevail on the defense of res judicata, a litigant must show “that 1) the previous action involved an adjudication on the merits; 2) the previous action involved the plaintiffs or those in privity with them; [and] 3) the claims asserted in the subsequent action were, or could have been, raised in the prior action.” Monahan v. New York City Dep’t of Corr., 214 F.3d 275, 285 (2d Cir.2000); see also United States v. Athlone Industries, Inc., 746 F.2d 977, 983 (3d Cir.1984). In this case, the defendants satisfied their burden.
Johnson raised claims relating to the emergency removal of the children in June 2002 in Johnson I. The claims were adjudicated on the merits, with the district court granting summary judgment in favor of the defendants. In Johnson II, Johnson litigated claims relating to the emergency removal of his children in March 2004. The distinct court, granting summary judgment in that case, adjudicated those claims on the merits. As the District Court concluded in this case, the claims Johnson raises in his complaint in this action were or could have been raised in his earlier lawsuits. Accordingly, they are barred by the doctrine of res judicata.
Furthermore, as the District Court determined, to the extent that Johnson actually seeks review of decisions rendered by the Queens County Family Court, the Rooker-Feldman doctrine bars review. See Turner, 449 F.3d at 547 (discussing the contours of the Rooker-Feldman doctrine).
For these reasons, we "will affirm the District Court’s decision.
. The doctrine derived from Rooker v. Fidelity Trust Co., 263 U.S. 413, 44 S.Ct. 149, 68 L.Ed. 362 (1923), and District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983).
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OPINION OF THE COURT
PER CURIAM.
Huo Xing Huang petitions for review of an order of the Board of Immigration Appeals (BIA), which dismissed his appeal from an Immigration Judge’s (IJ’s) final *858removal order. We will deny the petition for review.
I.
Huang is a native and citizen of China. He entered the United States in 2004 without proper documentation, and was placed in removal proceedings. He applied for asylum and related relief. Huang testified that he and his wife had twin girls in 1990, and that birth control cadres forcibly took his wife for sterilization in 1991. Huang said that his wife had the sterilization surgically reversed, and she had a son in 1999. In March 2000, the Huangs were found to be in violation of the population policy. Huang’s wife was forced to pay a fine in order to register her son. She was taken away to be sterilized, but the government decided it could not sterilize her because of her previous sterilization. Instead, Huang was taken forcibly to be sterilized on April 24, 2000.
The Immigration Judge (IJ) found Huang not to be credible. Huang submitted a medical evaluation from a radiologist in the United States, which states that there was “no definite evidence of prior vasectomy,” but that “sequela [sic] of this procedure may not be sonographically evident.” A.R. 282.1 The IJ noted that “[a]ny doubt raised in this evaluation was not rebutted by respondent’s [sic] through another medical examination.” IJ's decision, at A.R. 52. The IJ also found that Huang’s description of his vasectomy was not consistent with information in the Merck Manual of Medical Information. According to the IJ, Huang testified that “the underside of his penis was cut, which contradicted Merck’s description of vasectomy is evolving [sic] a cut in the scrotum.” A.R. 52. The IJ also faulted Huang for failing to have authenticated the sterilization certificate he submitted. The IJ also noted that Huang failed to provide any corroboration for his allegation that his wife was sterilized in 1991 or that her sterilization was reversed in 2004. A.R. 52-53. The IJ noted that information in the Merck Manual indicating that female sterilization may be reversed was not sufficient to corroborate Huang’s contention that his wife’s sterilization had been reversed. Id.
The Board of Immigration Appeals (BIA) found “no clear error” in the IJ’s adverse credibility finding. The BIA found no error in the IJ’s use of the Merck Manual, noting that an agency can take official or administrative notice of commonly acknowledged facts. A.R. 2. The BIA found that the questions the IJ asked Huang about his vasectomy were proper generalized questions, and were not “questions that only a medical professional could answer,” as Huang had argued on appeal. A.R. 3. Although recognizing that a vasectomy can in rare cases spontaneously reverse, the BIA also found that Huang’s positive sperm count, with no evidence that he had a surgical reversal of the vasectomy, undercut his claim. Id. The BIA found that Huang had submitted insufficient corroboration to overcome his incredible testimony. A.R. 4. Huang filed a timely petition for review.
II.
We review the final order of the BIA, but to the extent that the BIA adopts parts of the IJ’s opinion, we review the IJ’s opinion to determine whether the BIA’s decision to defer to the IJ was appropriate. Zhang v. Gonzales, 405 F.3d 150, 155 (3d Cir.2005). “We will uphold the [adverse credibility] findings ... to the extent that they are supported by reasonable, substantial and probative evidence on *859the record considered as a whole, and will reverse those findings only if there is evidence so compelling that no reasonable factfinder could conclude as the [IJ] did.” Kayembe v. Ashcroft, 334 F.3d 231, 234 (3d Cir.2003).2
We agree with the BIA that the discrepancies between Huang’s description of his vasectomy, and information the IJ found in the Merck Manual, coupled with the doctor’s report finding no evidence of a prior vasectomy, and the report of Huang’s positive sperm count, “were a sufficient basis for the [IJ] to doubt the respondent’s credibility and the entirety of his asylum claim.” A.R.3.3 We recognize that there appear to have been some problems with translation at the hearing, and that Huang’s testimony (that he was cut “a little bit under the penis” — not, as the IJ said “on the underside of the penis”) was not necessarily inconsistent with information in the Merck Manual that an incision for a vasectomy would be made in the scrotum. Nevertheless, Huang did not sufficiently rebut the implications of the medical reports he submitted; ie., that he may never have had a vasectomy. Although Huang complains in his brief that the IJ relied on information in the Merck Manual regarding how a vasectomy is performed,4 he also cites the Merck Manual for the proposition that a vasectomy can be reversed spontaneously. Petitioner’s Brief at 8. However, as the BIA noted in its decision, such a reversal occurs “in less than 1 percent of vasectomies....” A.R. 3. Huang submitted no medical testimony or evidence that a reversal happened in his case.5 We do not find the evidence so compelling that a reasonable factfinder would have to conclude that Huang in fact underwent a forced vasectomy.
Because the BIA in this case properly deferred to the IJ’s adverse credibility finding, we will deny the petition for review.
. Another doctor's report submitted noted that Huang's semen had been sent to a laboralory for analysis, "and the result showed positive sperm cells count.” A.R. 283.
. This case is governed by the provisions of the Real ID Act of 2005 regarding review of adverse credibility findings, as Huang’s asylum application was filed after the effective date of the Act. See Real ID Act of 2005, Pub.L. No. 109-13, Div. B, § 101, 119 Stat. 231 (May 11, 2005). The new provisions, inter alia, purport to eliminate a requirement that an adverse credibility finding based on an inaccuracy or inconsistency involve the heart of the applicant's claim. See Lin v. Mukasey, 521 F.3d 22, 27-28 (1st Cir.2008). We need not consider the effects of the new provisions, as the inconsistencies cited by the IJ here clearly involve the heart of Huang’s claim.
. As the Government notes in its brief, Huang has not rebutted any of the BIA's findings on appeal, but has instead reiterated, without change, the arguments from his brief to the BIA.
. The Government notes, however, that at the hearing before the IJ, Huang withdrew his objection to admission of the Merck Manual excerpt. A.R. 97.
. Although one medical report Huang submitted noted that the sequelae of a vasectomy might not be sonographically evident, Huang submitted no evidence as to the likelihood that no scar would be visible in a doctor’s physical examination. Common sense dictates that it is possible that a small incision might heal without obvious evidence of a scar, but again, Huang did not provide evidence showing how common this is in the case of a vasectomy, nor how common it would be for an individual to have both an absence of scarring and a positive sperm count following a vasectomy. The contents of the medical reports Huang submitted certainly should have alerted him that the medical evidence in support of his claim was weak.
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OPINION
PER CURIAM.
John McCauley petitions for review of an order of the Office of the Chief Administrative Hearing Officer (“OCAHO”) entering summary judgment against him on his claims of citizenship-status discrimination under 8 U.S.C. § 1324b. We will deny his petition.
I.
Tate & Kirlin Associates, Inc. (“Tate & Kirlin”) hired McCauley as an account collector. On his first day of work, he refused to disclose his social security number on a form 1-9 and refused to present a copy of his social security card, as a Tate & Kirlin representative earlier had instructed him he would have to do. Instead, he produced his birth certificate and passport. After some discussion between McCauley and certain Tate & Kirlin representatives about whether McCauley was legally required to disclose his social security number or present a social security card, a Tate & Kirlin representative told McCauley that he would be terminated if he refused to do so. McCauley again refused and threatened to sue if Tate & Kirlin terminated him, which it then did.
Thereafter, McCauley filed a complaint with the Special Counsel for Immigration-Related Unfair Employment Practices pursuant to 8 U.S.C. § 1324b(c).1 McCau*861ley, who is and all his life has been a United States citizen, alleged that Tate & Kirlin discriminated against him on the basis of his citizenship in violation of 8 U.S.C. § 1324b(a). After the Special Counsel notified McCauley pursuant to 8 U.S.C. § 1324b(d)(2) of his right to bring a private action, McCauley filed a complaint with the OCAHO. He alleged that Tate & Kirlin: (1) terminated him because he is a United States citizen in violation of § 1324b(a)(l)(B); (2) committed so-called “document abuse” by failing to accept his proffered documents as proof of citizenship, again with the intent to discriminate against him because of his United States citizenship, in violation of § 1324b(a)(6); and (3) intimidated him and retaliated against him in violation of § 1324b(a)(5) by terminating him after he threatened to sue.
After a period of discovery, Tate & Kirlin filed a motion for summary judgment under 28 C.F.R. § 68.38. The Administrative Law Judge (“ALJ”) granted the motion by order entered March 5, 2009. McCauley petitions for review.2
II.
We have jurisdiction pursuant to 8 U.S.C. § 1324b(i)(l). We exercise plenary review over the ALJ’s application of the federal summary judgment standard, though we give deference to “an agency’s reasonable construction of a statute it is charged with administering.” Getahun v. Office of the Chief Admin. Hearing Officer, 124 F.3d 591, 594 (3d Cir.1997). Our review confirms that the ALJ thoroughly and accurately explained why Tate & Kirlin was entitled to summary judgment on each of McCauley’s three claims, and we will deny this petition for the reasons already adequately explained in her opinion.
In sum, McCauley’s first two claims required him to come forward with some evidence that, in terminating him and refusing to accept his passport and birth certificate in lieu of a social security card, Tate & Kirlin acted with the intent to discriminate against him because he is a United States citizen. See 8 U.S.C. §§ 1324b(a)(1)(B) & (a)(6); United States v. Diversified Tech. & Servs. of Va., Inc., 9 OCAHO 1095, available at 2003 WL 21130616, at *5, 10-11 (O.C.A.H.O.2003). We agree that McCauley came forward with no such evidence. Instead, his evidence showed only that Tate & Kirlin terminated him because he refused to disclose his social security number, not because he is a United States citizen.3
*862McCauley’s final claim required him to show that Tate & Kirlin terminated him because of a threat to file a charge under § 1324b. See 8 U.S.C. § 1324b(a)(5) (prohibiting interference with “any right or privilege secured under this section ” and retaliation for filing a charge “under this section ”) (emphasis added); Arres v. IMI Cornelius Remcor, Inc., 333 F.3d 812, 813-14 (7th Cir.2003) (explaining that this prohibition “is limited to complaints and charges regarding ... the subject of § 1324b”); Yohan v. Central State Hosp., 4 OCAHO 593, available at 1994 WL 269185, at *7 (O.C.A.H.O.1994) (same). As the ALJ correctly explained, McCauley admitted at his deposition that he never threatened to file a charge against Tate & Kirlin under this statute, and did not even know himself where he would file a claim at the time he threatened to sue. (A.R. 250-52.) Moreover, McCauley does not claim that he ever told Tate & Kirlin that he believed it was discriminating against him because he is a United States citizen, and he acknowledged that a Tate & Kirlin representative told him that he would be terminated for refusing to present a social security card even before McCauley issued his vague threat to file a complaint. (Id.)
Accordingly, we will deny the petition for review.
. McCauley previously had been terminated by a different employer for refusing to dis*861close his social security number. He sued that employer in federal court under Title VII and several other statutory and constitutional provisions. The District Court dismissed his complaint under Rule 12(b)(6), and we affirmed. See McCauley v. Computer Aid, Inc., 242 Fed.Appx. 810 (3d Cir.2007).
. McCauley also filed a motion for a "declaratory judgment” that he was not legally obligated to provide his social security number. The ALJ, noting that the OCAHO rules codified at 28 C.F.R. §§ 68.1-68.58 make no provision for the issuance of declaratory judgments, nevertheless discussed the substance of McCauley’s motion and declined to issue the declaration. McCauley has not directly challenged that ruling in his briefs, and we thus do not address it. To the extent that his briefs can be read to challenge the ALJ's discussion of the issues he raised in that motion, his arguments are irrelevant to the issues on appeal for the reasons discussed below.
. McCauley devotes much of his brief to arguing that he was not required to disclose his social security number, and he claims that he in fact disclosed it on his employment application. Those arguments are of no moment. Section 1324b prohibits only discrimination on the basis of citizenship or immigration status. Thus, even if McCauley’s arguments are true, and even if Tate & Kirlin somehow was mistaken in requiring his social security number or terminating him for refusing to provide it (all issues on which express no opinion), Tate & Kirlin’s actions were not in violation of this statute. While we thus need not address McCauley's arguments regarding *862social security numbers and the employment verification process, we refer him to our discussion of those issues in his previous appeal. See McCauley, 242 Fed.Appx. at 812-13. McCauley also makes repeated reference to the affidavit of Dalreese Holman, which he claims the ALJ wrongfully failed to credit. Mr. Holman's affidavit, however, contains nothing suggesting that Tate & Kirlin terminated McCauley because he is a United States citizen (A.R.109), and neither does any other evidence of record.
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OPINION
PER CURIAM.
Mindy Zied seeks review of the District Court’s order remanding her case to the Administrative Law Judge for further development of the record. For the following reasons, we will affirm.
In 1995, Mindy Zied filed for an application for Social Security disability insurance benefits (“SSDI”) and supplemental security income (“SSI”), which was denied by the state agency (“the agency”). Zied did not request a hearing appealing the denial of her application. In 1999, Zied attempted to reopen the application, but the agency deemed the attempt to be a second, separate application. On the merits of the second application, the agency determined that Zied was disabled and thus, entitled to SSI benefits as of March 1999. The agency denied her claim for SSDI, however, finding that her SSDI claim concerned the same issues as her earlier, unsuccessful claim for benefits in 1995 and that the facts relevant to her SSDI determination were unchanged.
In September 2001, Zied moved into a home owned by Zied’s mother-in-law, for which Zied and her husband paid rent of one dollar ($1.00). As a result of the reduced rent, which was deemed a “rental subsidy” and counted as income, Zied’s SSI was reduced between October 2001 and September 2002. In February 2004, the agency denied Zied’s request for reconsideration of the SSI reduction because she did not file a timely appeal of the decision.
In June 2001, Zied’s husband, who received a needs-based pension from the Veteran’s Administration (“VA”), also began receiving SSDI and SSI benefits, making Zied eligible for spouse’s benefits based on her husband’s earnings records. Zied was informed that beginning September 2002, she was not eligible for SSI benefits because of the excess income from her husband’s pension. However, Zied was told that if her husband voluntarily terminated his SSI, the agency would recalculate her SSI retroactively to September 2002. Zied’s husband voluntarily terminated his eligibility for SSI as of October 1, 2002, and Zied was informed she would receive a payment of retroactive benefits. However, Zied challenged the manner in which the retroactive benefits were calculated.1
In February 2004, Zied requested that the agency reopen her 1995 application for SSDI benefits on the grounds that after the application was denied, Zied lost the mental capacity to ask for reconsideration. The ALJ assigned to Zied’s case, while noting that such a request would normally be denied as untimely, nonetheless consid*864ered Zied’s argument for an exception in light of applicable regulations. The ALJ concluded that despite Zied’s “long-term psychiatric history,” the record did not show a treatment history from July 1974 through November 1995. The ALJ further noted that because the record demonstrated that Zied was married and raising children without complaining of difficulty in doing so and because she had filed an appeal after the initial denial of her 1995 application and was therefore well aware of the appeal process, he was unable to conclude that she was incapable of filing a timely request for reconsideration.
In November 2006, Zied filed an amended complaint in the District Court alleging that: (1) the agency improperly calculated her SSI between September 2001 and September 2002 as related to the rental subsidy; (2) the agency improperly counted her receipt of spouse benefits between November 2002 and February 2004; and (8) the agency improperly denied her request to reopen her 1995 application. In a report and recommendation issued on October 25, 2007, a Magistrate Judge recommended that the case be remanded to the ALJ because the ALJ had not addressed the issue of the rental subsidy calculation in his opinion, nor had he fully considered the record evidence regarding Zied’s mental capacity and ability to request reconsideration in her case.2
Zied objected to the Magistrate Judge’s report and recommendation, arguing only that the District Court should reverse the ALJ’s decision and award her benefits because the evidence showed that she was entitled to SSDI benefits based on her 1995 application.
The District Court rejected Zied’s argument and remanded the case for further proceedings, aptly pointing out that the ALJ had not considered key evidence concerning whether Zied was mentally capable of requesting reconsideration at the time of the agency’s initial decision to deny her SSDI benefits in 1995. Zied appeals from the District Court’s decision to remand her ease for further proceedings.
I.
We have appellate jurisdiction under 42 U.S.C. § 405(g) and 28 U.S.C. § 1291.3 We will review the District Court’s remand order for abuse of discretion. See Harman v. Apfel, 211 F.3d 1172, 1176, 1178 (9th Cir.2000); Higgins v. Apfel, 222 F.3d 504, 505 (8th Cir.2000). In reviewing the District Court’s findings under the abuse of discretion standard, we must affirm the District Court’s holding unless its decision is based upon a factual error, an improper conclusion of law, or an inappropriate application of the controlling law to the facts. See Hanover Potato Prods., Inc. v. Shalala, 989 F.2d 123, 127 (3d Cir.1993). We have also held that an abuse of discretion can occur when “no reasonable person would adopt the district court’s view.” Id.
II.
Upon review of the record, we find that the District Court did not abuse its discretion when it remanded Zied’s case for further proceedings. Despite Zied’s argument, the ALJ had not fully considered whether Zied was mentally capable of *865seeking reconsideration at the time the agency rendered its decision in 1995.
Because Zied requested to reopen her application for SSDI benefits in 2004, more than four years after the initial decision denying benefits, her application was untimely and could only be reopened if “[i]t was obtained by fraud or similar fault.” See 20 C.F.R. § 404.988(c)(1). To determine whether fraud or similar fault exists, the adjudicator must consider “any physical, mental, educational, or linguistic limitations (including any lack of facility with the English language)” which the claimant may have had at the time. See 20 C.F.R. § 416.1488(c).
In her 2004 application requesting reopening and reconsideration of her case, Zied claimed that when she was denied benefits initially, she lost the mental capacity to request reconsideration. After reviewing the record, the District Court determined that the ALJ did not fully consider the record evidence before determining that Zied was indeed mentally capable of timely requesting reconsideration. Specifically, the District Court found that the ALJ failed to consider medical evidence regarding Zied’s multiple hospitalizations in 1973 and 1974, as well as the various mental health diagnoses of her treating physicians.
Because the ALJ appeared to have performed only a cursory review of Zied’s medical history, the District Court remanded the case further consideration of the administrative record. Zied nevertheless argues that remand would serve no purpose other than to delay her benefit award because the record is clear that she has been mentally impaired since 1972.
While a district court reviewing a decision of an ALJ adjudicating an SSDI claim may affirm, modify, or reverse the decision “with or without remanding the cause for a rehearing,” see 42 U.S.C. § 405(g), a district court should elect to order the award of benefits without a remand “only when the administrative record of the case has been fully developed and when substantial evidence on the record as a whole indicates that the claimant is disabled and entitled to benefits.” See Gilliland v. Heckler, 786 F.2d 178, 184 (3d Cir.1986).
In this case, remand was the appropriate course of action because the ALJ did not consider all of the evidence pertaining to Zied’s mental health. When an ALJ does not address all of the evidence of record, the appropriate action is to remand for further proceedings, as a District Court has no fact-finding role in reviewing social security disability cases. See Hummel v. Heckler, 736 F.2d 91, 93 (3d Cir.1984). Thus, we find that the District Court’s decision to remand Zied’s case for further review and consideration of the administrative record was appropriate.4
*866Accordingly, we will affirm the order of the District Court.
. In September 2004, an ALJ determined that the SSI calculations were correct.
. With regard to the issue of the reduction of Zied’s SSI payments due to her receipt of spouse's benefits between November 2002 and February 2004, the Magistrate Judge determined that substantial evidence supported the ALJ’s conclusion that the calculations were correctly reduced.
. A district court order remanding such a case to the ALJ constitutes a final, appealable order under 28 U.S.C. § 1291. See Forney v. Apfel, 524 U.S. 266, 267-69, 118 S.Ct. 1984, 141 L.Ed.2d 269 (1998).
. Similarly, remand was the appropriate course of action as to the issue of the calculation of Zied’s SSI benefit due to a rental subsidy. The District Court correctly noted that the AU failed to address the issue in his opinion. Where an ALJ does not address an issue, remand for further proceedings is proper, particularly where a technical calculation is necessary. See Immigration and Naturalization Serv. v. Ventura, 537 U.S. 12, 17, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002); Markle v. Barnhart, 324 F.3d 182, 189 (3d Cir.2003). With regard to the remaining claim in Zied’s amended complaint — that the agency improperly calculated her receipt of spouse benefits — she does not raise the issue in her appellate brief, nor did she object to the Magistrate Judge’s recommendation that the claim be denied. Because the District Court adopted the Magistrate Judge’s recommendation to deny the claim without further discussion, and also because Zied appears to have abandoned the issue on appeal, we express no opinion as to the appropriateness of the District Court’s denial of that claim.
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*867OPINION
PER CURIAM.
Appellant Glenn Joseph Turner, a pro se litigant, seeks review of the District Court’s October 20, 2008, 2008 WL 4671709, Order denying his petition for writ of habeas corpus, which he filed pursuant to 28 U.S.C. § 2241. For the reasons set forth below, we will affirm.
I.
In November 1985, Turner was sentenced in federal court to fifteen years of imprisonment, to be followed by a two-year term of special parole. In June 2005, Turner was released from federal incarceration into supervised parole, with special conditions. In January 2007, Turner was charged with violating the special conditions of his parole that prohibited him from: (1) associating with members of the Pagan Motorcycle Club; (2) wearing clothing adorned with logo of the Pagan Motorcycle Club; and (3) leaving the Eastern District of Pennsylvania without the permission of his supervising U.S. Probation Officer. Following an April 2007 hearing, the U.S. Parole Commission (“the Commission”) revoked Turner’s parole and ordered that he serve eleven months before being re-paroled. Turner appealed the Commission’s decision and the National Appeals Board (“the Board”) denied relief in a September 2007 opinion. In late December 2007, Turner was re-paroled from a federal half way house and placed under the supervision the United States Probation Office of the Eastern District of Pennsylvania.
In November 2007, Turner filed a federal petition for writ of habeas corpus in the District Court pursuant to 28 U.S.C. § 2241.1 He argued that the conditions of his parole violate his First Amendment rights of freedom of association and speech. He further contended that he was illegally charged with leaving the jurisdiction of his supervising officer and that the authority of the Commission violates the separation of powers doctrine of the United States Constitution. The District Court denied Turner’s petition, having concluded that there was a reasonable relationship between the conditions of Turner’s parole and legitimate government interests. It further found that the standard travel restriction imposed upon Turner was lawful and that his separation of powers claim lacks merit. The District Court declined to issue a certificate of appealability and Turner filed a timely appeal.2
II.
We have jurisdiction pursuant to 28 U.S.C. § 1291 and exercise plenary review over the District Court’s legal conclusions. See Ruggiano v. Reish, 307 F.3d 121, 126 (3d Cir.2002). A court’s role in reviewing decisions made by the United States Parole Commission on an application for a writ of habeas corpus is limited. See Gambino v. Morris, 134 F.3d 156, 160 (3d Cir.1998). The appropriate standard of *868review is whether there is a rational basis in the record for the Commission’s decision. Id. The court must only ensure that the Commission’s decision is not arbitrary and capricious, nor based on impermissible considerations. Id.
After reviewing the record, we agree with the District Court’s conclusion that the Commission had a rational basis for imposing special conditions on Turner’s parole.
III.
A. First Amendment Claims
Turner first claimed in his habeas petition that the conditions of his parole violated his First Amendment rights of freedom of association and speech. Turner argued that because he committed the crimes resulting in his federal conviction alone, he should not be restricted from associating, in any way, with members of the Pagan Motorcycle Club (the “Pagans”). As previously mentioned, the Commission prohibited Turner from associating with Pagans and wearing clothing with the Pagan logo. These special conditions were imposed because: (1) Turner’s criminal record showed that his previous criminal activity was related to his membership in the Pagans and (2) the Pagans’ history of involvement in criminal activity could result in Turner’s association with convicted felons.
A parolee’s activities, even those involving constitutional rights, may be restricted if there is a reasonable basis to believe that engaging in the prohibited activity could hinder rehabilitation or pose a danger to society. See United States v. Crandon, 173 F.3d 122, 127-28 (3d Cir.1999). In Crandon, we affirmed a supervised release restriction on Internet access imposed on a defendant convicted of receiving child pornography because the condition was narrowly tailored and was directly related to deterring Crandon and protecting the public. Id.; see also United States v. Beros, 833 F.2d 455, 467 (3d Cir.1987) (restriction on holding union position and receiving union funds was reasonably related to prevention of future crime based on prior conviction for embezzlement and misuse of union funds); United States v. Showalter, 933 F.2d 573, 575-76 (7th Cir.1991) (restriction of association with other skinheads and neo-Nazis was properly imposed as a condition of supervised release to deter defendant from engaging in future criminal conduct). The Ninth Circuit has expressly upheld a special condition of supervised release which prohibited a parolee from associating with members of motorcycle clubs. United States v. Bolinger, 940 F.2d 478, 480-81 (9th Cir.1991).
Despite Turner’s contentions, there is significant evidence demonstrating that the special condition restricting his contact with Pagan members is reasonably related to his prior criminal activity.3 The Commission imposed the special condition based on Turner’s undisputed long-term relationship with the Pagans, including a period in a high-ranking position, and because much of his prior criminal activity was related to his membership in the Pagans. In 1975, Turner was convicted of a firearms offense arising from an incident in which he pointed a gun at a person who was accused of shooting a member of the Pagans. In 1976, Turner was convicted of participating in a large-scale methamphetamine and PCP conspiracy that was operated by Pagan members. In 1980, Turner’s parole was revoked when he went to *869visit a state inmate who was a known Pagan member and a co-conspirator in the drug conspiracy. Moreover, at Turner’s most recent parole hearing, he admitted that he had been in contact with Pagan members while on parole and that he had an almost life-long affiliation with the Pagans and felt obligated to them for their support while he was in prison. At no point did Turner contest the Commission’s finding that the Pagans have a history of involvement in criminal activities.
We agree with the District Court that the condition prohibiting Turner’s contact with Pagan members was reasonably related to his prior criminal activity and intended to deter him from engaging in future criminal activity and to protect the public, and thus was a valid restraint on his right of freedom of association.4 See Crandon, 173 F.3d at 127-28.
The condition that Turner refrain from wearing the logo of the Pagans is supported by the same rationale. Although he argues that the Supreme Court’s ruling in Cohen v. California, 403 U.S. 15, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971), should lead us to conclude otherwise, his reliance on Cohen is misplaced. In Cohen, the defendant was convicted of disturbing the peace when he walked through a courthouse wearing a jacket bearing an expletive. Id. at 16, 91 S.Ct. 1780. The Supreme Court vacated his conviction, finding that his conviction rested solely upon the content of his speech, and thus violated his rights under the First and Fourteenth Amendments. Id. at 18-19, 91 S.Ct. 1780. Here, in contrast, Turner was a parolee and thus subject to reasonable restrictions on his constitutional rights. The restriction on wearing Pagan logos in the company of club members is reasonably related to the goals of rehabilitation and the protection of society.
B. Restrictions on Travel
Turner also claimed that the Commission erred by concluding that he violated his conditions of parole by traveling outside of the district without permission. As mentioned, Turner is under the supervision of the U.S. Probation Office in the Eastern District of Pennsylvania. Turner admitted to the Commission that he traveled to Delaware to attend a memorial for a Pagan member. However, he argued in his petition that his travel to Delaware was lawful because Delaware, as well as the district in which he is paroled, is within the appellate jurisdiction of this Court. The District Court correctly noted that the fact that Delaware is within the appellate jurisdiction of this Court does not extend Turner’s ability to travel to every district within the Third Circuit without the permission of his probation officer. This Court’s jurisdiction under 28 U.S.C. § 1291 is distinct from the jurisdiction of the Commission. See 18 U.S.C. § 4210(a). As a parolee, Turner is in the “legal custody and under the control of the Attorney General” until the expiration of his parole term. Id.
Furthermore, to the extent that Turner argues that such travel restrictions in general are unconstitutional, we have previously held that “conditions of probation include restrictions on a defendant’s right to travel.” United States v. Warren, 186 F.3d 358, 366 (3d Cir.1999); Williams v. *870Wisconsin, 336 F.3d 576, 581 (7th Cir.2003) (“Like prisoners, ... parolees ... have no right to control where they live in the United States; the right to travel is extinguished for the entire balance of their sentences.”)
Accordingly, the District Court correctly concluded that Turner was properly charged with a parole violation for leaving the Eastern District of Pennsylvania without the permission of his probation officer.
C. Separation of Powers Claim
Lastly, the District Court correctly determined that Turner’s separation of powers claim lacks merit. Under the Doctrine of Separation of Powers, each branch of government (judicial, executive, legislative) exercises exclusive authority over certain matters. See I.N.S. v. Chadha, 462 U.S. 919, 951, 103 S.Ct. 2764, 77 L.Ed.2d 317 (1983).
Turner has not presented a plausible Separation of Powers claim to challenge the authority of the Commission to impose conditions of parole upon him. The Commission has full authority to grant, deny or revoke Turner’s parole; the Commission may also impose or modify the conditions of his parole. See 18 U.S.C. §§§ 4208, 4209, 4214. In doing so, the Commission does not usurp the authority of the judiciary such that its decisions violate the Doctrine of Separation of Powers. See Geraghty v. U.S. Parole Commission, 719 F.2d 1199, 1211-12 (3d Cir.1983). The Commission may lawfully impose reasonable conditions of parole, see 18 U.S.C. § 4209(a), and, as we have concluded, the Commission’s conditions in this case are reasonable and rationally related to the goals of Turner’s parole.
Accordingly, we will affirm the judgment of the District Court.5
. The writ of habeas corpus is available only to persons held "in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241(c)(3). Turner was in physical custody in a federal half way house at the time he filed his petition and is currently paroled with restrictions under the supervision of the U.S. Probation Office of the Eastern District of Pennsylvania. Accordingly, he met the “custody" requirement of 28 U.S.C. § 2241. See Jones v. Cunningham, 371 U.S. 236, 243, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963) (parole meets the "in custody” requirement for habeas review).
. Because Turner is a federal prisoner, he does not need a certificate of appealability to appeal from the denial of his § 2241 petition. See 28 U.S.C. § 2253(c)(1); United States v. Cepero, 224 F.3d 256, 264-65 (3d Cir.2000).
. The Commission, in determining the conditions of Turner's parole, was not limited to considering only matters directly related to his most recent offense of conviction. See 18 U.S.C. § 4209(a)(2).
. Although the condition also prohibited Turner from associating with members of other motorcycle clubs that had a history of criminal activity, it does not appear that Turner challenged that aspect of the condition in his appeal of the Commission's ruling. It is clear that he did not raise the claim in his habeas petition. Therefore, we will not address it as neither the Appeals Board nor the District Court considered the constitutionality of the restriction on association with other motorcycle clubs.
. Appellee's motion for leave to file its supplemental appendix under seal is granted. See Pansy v. Borough of Stroudsburg, 23 F.3d 772, 786-87 (3d Cir.1994).
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OPINION
PER CURIAM.
Rinaldo Diehl, proceeding pro se, appeals an order of the United States District Court for the District of New Jersey denying his motion to reduce his sentence under 18 U.S.C. § 3582(c)(2). We will affirm.
In October 2001, Diehl pleaded guilty to possession with intent to distribute more than 5 grams of cocaine base. See 21 U.S.C. § 841(a)(1) and (b)(1)(B). Diehl’s base offense level (BOL) was 31, after the court applied a downward departure of three points for acceptance of responsibility. Because Diehl had three prior drug felony convictions, the career offender Guidelines, U.S.S.G. § 4B1.1, applied and he was assigned a criminal history category of VI. The combined BOL/Criminal History score resulted in a Guidelines range of 188 to 235 months of imprisonment. Diehl moved for a downward departure, arguing that the career offender enhancements dramatically over-represented his prior criminal background of drug convictions involving small amounts of cocaine. The District Court declined to depart from the guidelines, and on May 29, 2002, imposed a prison sentence of 188 months. We affirmed his sentence on direct appeal. See United States v. Diehl, 65 Fed.Appx. 839 (3d Cir.2003).
*877In 2008, Diehl filed a pro se motion under 18 U.S.C. § 3582(c)(2) for a sentence reduction, based on Amendment 706 to the Sentencing Guidelines, which generally reduced by two levels the base offense level for crack cocaine offenses. The District Court denied the motion, and this appeal followed. The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. Our review of a district court’s interpretation of the Guidelines is de novo. See United States v. Sanchez, 562 F.3d 275, 277-78 (3d Cir.2009). We review a court’s ultimate determination of a defendant’s motion to reduce sentence under § 3582(c)(2) for abuse of discretion. See United States v. Mateo, 560 F.3d 152, 154 & n. 2 (3d Cir.2009).
A District Court may reduce a term of imprisonment under § 3582(c)(2) “only when two elements are satisfied: First, the defendant must have been ‘sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission;’ and second, the sentence reduction must be ‘consistent with applicable policy statements issued by the Sentencing Commission.’ ” United States v. Doe, 564 F.3d 305, 309 (3d Cir.2009) (quoting § 3582(c)(2)). The applicable policy statement provides that a sentence reduction is not authorized if the retroactive amendment “does not have the effect of lowering the defendant’s applicable guideline range.” U.S.S.G. § lB1.10(a)(2). In this regard, “the policy statement and § 3582(c)(2) are complementary.” Doe, 564 F.3d at 310.
In Mateo, we held that the crack cocaine amendment will not lower the applicable Guidelines sentencing rangé under U.S.S.G. § 4Bl.l(b) for career offenders. Mateo, 560 F.3d at 154-55. This is because “Amendment 706 only affects calculation under § 2D1.1(c), and the lowering of the base offense level under § 2Dl.l(e) has no effect on the application of the career offender offense level required by § 4B1.1.” Id. at 155. Because Diehl was sentenced as a career offender, the crack cocaine amendment does not affect his applicable sentencing range. Therefore, he may not obtain a reduction in his sentence pursuant to § 3582(c)(2), and the District Court did not err in denying his motion to reduce his sentence. We also reject Diehl’s arguments that United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), and Kimbrough v. United States, 552 U.S. 85, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007), require a different result. Neither case provides a basis for a reduction of sentence not otherwise allowable under § 3582(c). See Mateo, 560 F.3d at 155,156.
We will affirm the judgment of the District Court.
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OPINION
PER CURIAM.
Appellant Tosin Adegbuji, proceeding pro se, filed a civil rights lawsuit against various corrections and medical defendants affiliated with the Middlesex County Adult Correctional Center (“MCACC”) in April 2003. The complaint was based on events occurring at MCACC while Appellant was being held there as an Immigration and Naturalization Service (“INS”) detainee.1 While the underlying proceedings were pending, Appellant was granted withholding of removal to Nigeria but denied asylum. He was subsequently removed to the United Kingdom, where he remains today. In an opinion and order dated September 28, 2006, 2006 WL 2806289, the District Court entered summary judgment in favor of all defendants on all causes of action except: (1) against Defendants Johnson and Botnick, on the charge that they used excessive force in restraining Appellant while locking him in his cell, and (2) against Defendant LaSalla on the charge that he retaliated against Appellant and violated his procedural due process rights. *879The Court then set a trial date of December 5, 2006 for all remaining issues.
On November 20, 2006, Appellant filed a motion in the District Court requesting a “90-day extension of time within which to begin the trial” due to his inability to enter the country without prior permission from the Department of Homeland Security. Appellant alleged that his application for permission to temporarily enter the United States had been filed on November 5, 2006 and that he had been appointed counsel in connection with his appeal of the INS’s removal order and was awaiting a date for oral argument before the Third Circuit Court of Appeals. In the alternative, Appellant requested that the Court appoint counsel to represent him at trial. On November 27, 2006, the District Court denied Appellant’s requests for a continuance of the trial date and for the appointment of counsel. Noting Appellant’s failure to request permission to enter the United States until November 5, despite the Court’s having informed the parties of the trial date on September 28, the Court held that Appellant had not acted diligently in filing his request. On December 8, 2006, with Appellant having failed to appear for trial, the Court dismissed the action with prejudice and without costs.
On December 21, 2006, Appellant filed a motion for reconsideration of the dismissal of the action based on his failure to appear at trial. In his motion, he explained that he mailed his application for permission to re-enter the United States on October 4, 2006, three days after receiving notice of the trial date, and that it was received the following day, but was not filed until November 5, 2006. He further represented that he was informed by DHS that his application would require a minimum of 90 days from the filing date for processing. Based on the foregoing, Appellant argued that he had exercised diligence in seeking permission to re-enter.
On February 15, 2007, the District Court granted Appellant’s motion, and rescheduled the trial for March 12, 2007.2 On March 7, two weeks before the trial was set to begin, Appellant informed the Court that he had not yet received a response to his DHS application, detailed his efforts to obtain further information about his status, and requested a second adjournment. The court issued a one-sentence order denying his request. On March 21, 2007, with Appellant and counsel for Appellees all appearing telephonically, the Court denied Appellant’s requests: (i) for a bench trial, (ii) to conduct the trial telephonically, and (iii) for a continuance. After hearing briefly from each of the parties, the Court made the following findings on the record with respect to Appellant’s request for a continuance:
The last thing we have here is whether or not, this is what Mr. Adegbuji is requesting, another extension of time, [sic] Basically to be permitted upon the facts that he’s trying to work through the Attorney General or the Department of Homeland Security in order to secure some type of permission to re-enter the country. Evidently Mr. Adegbuji had been deported some time ago. He’s not authorized to enter the United States at this time. He has obviously made some efforts but in November he had represented to this Court he thought it would take 90 days. We’ve now waited five months. As far as I can tell we’re no farther [sic] along the process than we were five months ago. It’s speculative at best to think that either the Attorney General or the Department of Homeland *880Security will permit his re-entry into the United States. This case is four years old. I think it was instituted in April of 2003. So, it’s one of the oldest cases on the docket.
The Court is mindful that Mr. Adegbuji is not the only person that is part of this case. There are officers, there’s [sic] municipalities. Fairness to them requires that I bring a conclusion to this matter. Mr. Adegbuji has had ample opportunity to be here and to be present. He’s unable to do that. Although it may be for reasons out of his control, certainly the defendants in this case also have a right to fairness and fairness in this instance dictates that the case be dismissed at the present time with prejudice. I note that, I guess the rules would provide that lack of prosecution by the plaintiff would permit such dismissal.
So, relying upon those rules, Mr. Adegbuji’s failure to appear for trial twice now, warrants dismissal with prejudice.
(Supplemental App. 216.)
The District Court entered judgment against Appellant on March 28, 2007. Appellant appealed, maintaining that the Court erred in dismissing the action with prejudice rather than staying it pending his receipt of a response from DHS. On September 7, 2007, after receiving responses from the parties, we entered an order summarily vacating the District Court’s judgment and remanding the matter for explicit consideration of the of the factors delineated in Poulis v. State Farm Fire & Cas. Co., 747 F.2d 863, 868 (3d Cir.1984), which we have required district courts to consider in connection with the entry of involuntary dismissal of a plaintiffs action pursuant to Federal Rule of Civil Procedure 41(b). Upon receipt of our order, the District Court ordered briefing on the Poulis issue. On January 7, 2008, the Court entered an order dismissing Appellant’s case with prejudice for the reasons set forth in the record.
On May 16, 2008, a transcript was entered onto the District Court docket reflecting the District Court’s January 7, 2008 oral findings on the Poulis factors:
(1) the extent of the party’s personal responsibility; (2) the prejudice to the adversary caused by the failure to meet scheduling orders and respond to discovery; (3) a history of dilatoriness; (4) whether the conduct of the party or the attorney was willful or in bad faith; (5) the effectiveness of sanctions other than dismissal, which entails an analysis of alternative sanctions; and (6) the meritoriousness of the claim or defense.
Poulis, 747 F.2d at 867 (emphasis in original).
The Court held that it was difficult to evaluate the first, third or fourth factors in this case, as Appellant was deported due to his own criminal conduct, but has not intentionally delayed proceedings for reasons other than his removal from this country. (Supplemental App. 233-34.) Additionally, while the Court concluded that there was sufficient merit to Appellant’s underlying claims to permit them to proceed to trial, the Court considered Appellant’s case to be “weak.” (Supplemental App. 234.) However, the Court concluded that the second and fifth factors clearly favored Appellees:
In this case there is potential prejudice to the defendant. This case is close to five years old at the present time. I believe that the attorneys for the defendants had indicated that a number of the witnesses had retired or left the service of the Middlesex County Department of Corrections. So, there’s substantial prejudice to the defendants in this case.
The fifth factor is whether less restrictive sanctions are sufficient. This is *881not a case of where other sanctions are available. It is a lack of prosecution due to his immigration status. Plaintiff is required to be here at the time of trial but it didn’t happen. I don’t believe there would be any other sanction that would be available. Plaintiff has been given sufficient time to resolve this matter.
So looking at all the factors it seems to me that the most substantial one is the prejudice to the defendants. The case is five years old. When cases get old, witnesses’ memories fade. In addition, some of the witnesses may not be available, further prejudicing defendants. So it seems to me, there’s substantial prejudice that warrants dismissal.
Having said that, the Court dismisses this case with prejudice after a thorough consideration of the Poulis factors.
(Supplemental App. 238-34.) Although it concluded that the case should be dismissed, the Court provided Appellant with an approximately six-month window during which he could move to re-open the proceedings should he receive permission to re-enter the United States. (Supplemental App. 234.) On July 23, 2008, the Court entered an order extending that time period until November 1, 2008 based on Appellant’s representation that he had an interview scheduled with the United States Embassy on August 29, 2008. (Supplemental App. 182-83.) During that interview, it was determined that Appellant was not eligible for a Non-Immigrant Visa Waiver and, therefore, would not be permitted to enter the United States to attend trial. (Supplemental App. 185-87.)
Appellant timely appealed from the District Court’s January 7, 2008 order of dismissal.3 We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. We review a dismissal for failure to prosecute for abuse of discretion. See In re Jewelcor Inc., 11 F.3d 394, 397 (3d Cir.1993).
Appellant argues that his civil action should not have been dismissed, as “all of the six factors do not weigh in favor of dismissal.” (Appellant Br. 10.) However, we have never required complete satisfaction of each Poulis factor in order to justify the sanction of dismissal. See Mindek v. Rigatti, 964 F.2d 1369, 1373 (3d Cir.1992) (“As we have already recognized, not all of the Poulis factors need be satisfied in order to dismiss a complaint.”); Hicks v. Feeney, 850 F.2d 152, 156 (3d Cir.1988) (“Not all of these factors need be met for a district court to find dismissal is warranted.”). Rather, we have stated that we will be guided by the way in which the District Court balanced all six of the Poulis factors. See Poulis, 747 F.2d at 868; see also Quality Prefabrication, Inc. v. Daniel J. Keating Co., 675 F.2d 77, 80 (3d Cir.1982) (explaining that there must be some “articulation of the basis for the [district court’s] action ... [to] enable the reviewing court to determine whether the relevant factors were considered and assigned appropriate weight in making the decision”). As we have explained, we do not ask whether we would have made the same decision as the District Court, but rather whether the District Court abused its discretion in reaching the decision it did. See Mindek, 964 F.2d at 1373 (“Ultimately, the decision to dismiss constitutes an exercise of the district court judge’s discretion and must *882be given great deference by this Court — a court which has had no direct contact with the litigants and whose orders, calendar, docket and authority have not been violated or disrupted.”). Based on the protracted proceedings which have transpired below, the numerous opportunities the District Court provided Appellant to obtain permission to re-enter the United States, the length of time which has transpired since Appellant’s complaint was filed, and the District Court’s assessment of the prejudice to Appellees and the lack of alternative sanctions, we cannot conclude that the District Court’s decision constitutes an abuse of discretion. Appellant further argues that the Court failed to make findings as to the prejudice to Appellees or the effectiveness of sanctions other than dismissal. (Appellant Br. 12-13, 15-16.) However, the transcript of the District Court’s findings belies this assertion.
Based on the foregoing, we will affirm the judgment of the District Court.
. Effective March 1, 2004, the INS was abolished and its functions transferred to the Department of Homeland Security ("DHS”).
. The following week, the Court rescheduled the trial to March 21, 2007 at the request of one of the Appellees’ attorneys.
. On January 18, 2008, Appellant timely filed a motion for reconsideration, which tolled the time for taking an appeal. See Fed. R.App. P. 4(a)(4). His notice of appeal was filed on April 21, 2008, within thirty days of the District Court’s denial of his motion for reconsideration. See id.; see also Fed. R.App. P. 4(a)(1)(A).
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OPINION
PER CURIAM.
David Webb, proceeding pro se, appeals the order of the United States District Court for the Eastern District of Pennsylvania dismissing his personal injuiy action as frivolous. We will dismiss the appeal pursuant to 28 U.S.C. § 1915(e)(2)(B).
In June 2009, Webb initiated this diversity action against Perkiomen School by filing a complaint and motion for leave to proceed before the district court in forma pauperis. Webb, a resident of South Dakota, alleged that, in May 1981, while a boarding student at the Perkiomen School, he was assaulted by a group of students. He alleged that the Perkiomen School employees never reported the incident to the police or to his legal guardian. On June 80, 2009, the district court granted Webb leave to proceed in forma pauperis but dismissed the complaint pursuant to 28 U.S.C. § 1915(e) on statute of limitations grounds. Webb timely appealed the ruling to this Court.
We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291, and exercise plenary view over the district court’s sua sponte dismissal. See Allah v. Seiverling, 229 F.3d 220, 223 (3d Cir.2000). Because we have granted Webb in forma pauperis status pursuant to 28 U.S.C. § 1915, we review this appeal for possible dismissal pursuant to 28 U.S.C. § 1915(e)(2)(B). We will dismiss an appeal under § 1915(e) if it lacks an arguable basis in fact or law. Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989).
The district court correctly dismissed Webb’s claim under § 1915(e)(2)(B), as his claim lacked an arguable basis in law. The statute of limitations for Webb’s action is governed by the personal injury statute of limitations in Pennsylvania, the state in which his cause of action accrued. That period is two years, subject to any state law tolling provisions which are not inconsistent with federal law. 42 Pa. Cons.Stat Ann. § 5524; see also Lake v. Arnold, 232 F.3d 360, 366 (3d Cir.2000). Although the statute of limitations is an affirmative defense, a district court may sua sponte dismiss a complaint under § 1915(e) where the defense is obvious from the complaint and no development of the factual record is required. See Fogle v. Pierson, 435 F.3d 1252, 1258 (10th Cir.2006); Eriline Co. S.A. v. Johnson, 440 F.3d 648, 656-57 (4th Cir.2006); Dellis v. Corr. Corp. of Am., 257 F.3d 508, 511 (6th Cir.2001); Pino v. Ryan, 49 F.3d 51, 53 (2d Cir.1995).
Here, the incident underlying Webb’s complaint occurred in 1981, making it apparent from the face of the complaint that the two-year statute of limitations expired well before he filed suit in 2009. In his argument in support of his appeal, Webb asserts that the statute of *677limitations should be equitably tolled because the defendants fraudulently concealed the assaults by failing to notify the local police and his legal guardian. However, equitable tolling occurs where the defendants have intentionally misinformed or concealed information from the plaintiff and the limitations period begins when the plaintiff knows or had reason to know of the injury forming the basis for the action. Sameric Corp. v. City of Phila., 142 F.3d 582, 599 (3d Cir.1998); Walters v. Ditzler, 424 Pa. 445, 227 A.2d 833, 835 (1967). In his complaint, Webb alleges details of the assault, including awakening in a hospital room in May 1981. He also alleges that he has sustained many years of pain and suffering and subsequent injuries since the original injury in 1981. In other words, Webb expressly admits in his complaint that he learned of his injuries more than two years before he filed this lawsuit in June 2009.1
Accordingly, Webb’s claims were filed well beyond the expiration of the applicable statute of limitations and are now time barred. We find that there was no need to provide Webb an opportunity to amend his complaint because any amendment would have been futile. See Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir.2002) (noting that amendment “must be permitted ... unless it would be inequitable or futile”). Because we conclude that Webb’s appeal lacks an arguable basis in law, we dismiss it pursuant to 28 U.S.C. § 1915(e)(2)(B).
. To the extent that Webb may have been a minor at the time of the assaults, Pennsylvania's “minor tolling statute," which tolls the two-year statute of limitations period until the minor plaintiff reaches the age of 18, also does not apply, since Webb filed more than twenty years following the incident. See 42 Pa. Cons.Stat. Ann. § 5533(b); see also Fanc-sali ex rel. Fancsali v. Univ. Health Ctr. of Pittsburgh, 563 Pa. 439, 761 A.2d 1159, 1164 (2000).
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Dismissed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Stanley Hoberek seeks to appeal the district court’s order accepting the recommendation of the magistrate judge, treating his Fed.R.Civ.P. 60(b) motions as successive 28 U.S.C.A. § 2255 (West Supp. 2009) motions, and dismissing them on that basis. The order is not appealable unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1) (2006); Reid v. Angelone, 369 F.3d 363, 369 (4th Cir.2004). A certificate of appealability will not issue absent “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (2006). A prisoner satisfies this standard by demonstrating that reasonable jurists would find that any assessment of the constitutional claims by the district court is debatable or wrong and that any dispositive procedural ruling by the district court is likewise debatable. Miller-El v. Cockrell, 537 U.S. 322, 336-38, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003); Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000); Rose v. Lee, 252 F.3d 676, 683-84 (4th Cir.2001). We have independently reviewed the record and conclude that Hoberek has not made the requisite showing. Accordingly, we deny Hoberek’s motion for a certificate of appealability and dismiss the appeal.
Additionally, we construe Hoberek’s notice of appeal and informal brief as an application to file a second or successive motion under 28 U.S.C.A. § 2255. United States v. Winestock, 340 F.3d 200, 208 (4th Cir.2003). In order to obtain authorization to file a successive § 2255 motion, a prisoner must assert claims based on either: (1) newly discovered evidence, not previously discoverable by due diligence, that would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the movant guilty of the *888offense; or (2) a new rule of constitutional law, previously unavailable, made retroactive by the Supreme Court to cases on collateral review. 28 U.S.C.A. § 2255(h) (West Supp.2009). Hoberek’s claims do not satisfy either of these criteria. Therefore, we deny authorization to file a successive § 2255 motion.
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.
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Marsha P. Carter appeals the district court’s order dismissing her employment discrimination action. Carter has failed to challenge the district court’s dismissal of her retaliation claim and, therefore, she has forfeited appellate review of that claim. See 4th Cir. R. 34(b). In addition, with respect to Carter’s claim of disparate treatment, we conclude that Carter failed to establish a prima facie case of discrimination. Accordingly, we affirm the district court’s order. We dispense with oral argument because the facts and legal contentions are adequately addressed in the materials before the court and argument would not aid the decisional process.
AFFIRMED.
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Austin Cornejo, as administrator of the Estate of Jack Steven Cornejo, appeals from the district court’s order affirming the bankruptcy court’s order determining that the debt owed to the Estate as a result of the state court judgment for the wrongful death of Jack Cornejo was dis-chargeable in Brandon Paul Gotwalt’s bankruptcy case. We have reviewed the record and the briefs filed by the parties and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Cornejo v. Gotwalt, No. 1:08-cv-00730-CMH-TRJ (E.D. Va. filed Sept. 30, 2008; entered Oct. 1, 2008). 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.
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Gerald O. Deel appeals the magistrate judge’s order dismissing for failure to state a claim Deel’s breach of contract and defamation complaint.* We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the magistrate judge. Deel v. Home Depot USA, Inc., No. 7:08-cv-00856-WMC (D.S.C. Feb. 25, 2009). 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.
The parties consented to the magistrate judge’s jurisdiction pursuant to 28 U.S.C. § 636(c) (2006).
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Joseph Lee Barr appeals the district court’s order granting summary judgment in favor of the Appellee on Barr’s claims of racial discrimination, retaliation, breach of contract, and negligence. With respect to Barr’s latter three claims, Barr has failed to challenge on appeal the court’s basis for granting summary judgment for the Appellee. We therefore find that Barr has forfeited appellate review of those claims. See 4th Cir. R. 34(b). With respect to Barr’s claim of racial discrimination, we have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Barr v. Lexington County Sch. Dist., No. 3:07-cv-01351-JFA-PJG (D.S.C. Mar. 11, 2009). 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.
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Mike S. Scott appeals the district court’s order denying relief on his 42 U.S.C. § 1983 (2006) complaint. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Scott v. Maynard, No. 8:07-cv-03080-AW (D.Md. Dec. 9, 2009). 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.
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Dismissed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Stanley Hoberek seeks to appeal the district court’s order accepting the recommendation of the magistrate judge, treating his Fed.R.Civ.P. 60(b) motions as successive 28 U.S.C.A. § 2255 (West Supp. 2009) motions, and dismissing them on that basis. The order is not appealable unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1) (2006); Reid v. Angelone, 369 F.3d 363, 369 (4th Cir.2004). A certificate of appealability will not issue absent “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (2006). A prisoner satisfies this standard by demonstrating that reasonable jurists would find that any assessment of the constitutional claims by the district court is debatable or wrong and that any dispositive procedural ruling by the district court is likewise debatable. Miller-El v. Cockrell, 537 U.S. 322, 336-38, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003); Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000); Rose v. Lee, 252 F.3d 676, 683-84 (4th Cir.2001). We have independently reviewed the record and conclude that Hoberek has not made the requisite showing. Accordingly, we deny Hoberek’s motion for a certificate of appealability and dismiss the appeal.
Additionally, we construe Hoberek’s notice of appeal and informal brief as an application to file a second or successive motion under 28 U.S.C.A. § 2255. United States v. Winestock, 340 F.3d 200, 208 (4th Cir.2003). In order to obtain authorization to file a successive § 2255 motion, a prisoner must assert claims based on either: (1) newly discovered evidence, not previously discoverable by due diligence, that would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the movant guilty of the *888offense; or (2) a new rule of constitutional law, previously unavailable, made retroactive by the Supreme Court to cases on collateral review. 28 U.S.C.A. § 2255(h) (West Supp.2009). Hoberek’s claims do not satisfy either of these criteria. Therefore, we deny authorization to file a successive § 2255 motion.
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.
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Marsha P. Carter appeals the district court’s order dismissing her employment discrimination action. Carter has failed to challenge the district court’s dismissal of her retaliation claim and, therefore, she has forfeited appellate review of that claim. See 4th Cir. R. 34(b). In addition, with respect to Carter’s claim of disparate treatment, we conclude that Carter failed to establish a prima facie case of discrimination. Accordingly, we affirm the district court’s order. We dispense with oral argument because the facts and legal contentions are adequately addressed in the materials before the court and argument would not aid the decisional process.
AFFIRMED.
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Gerald O. Deel appeals the magistrate judge’s order dismissing for failure to state a claim Deel’s breach of contract and defamation complaint.* We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the magistrate judge. Deel v. Home Depot USA, Inc., No. 7:08-cv-00856-WMC (D.S.C. Feb. 25, 2009). 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.
The parties consented to the magistrate judge’s jurisdiction pursuant to 28 U.S.C. § 636(c) (2006).
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Joseph Lee Barr appeals the district court’s order granting summary judgment in favor of the Appellee on Barr’s claims of racial discrimination, retaliation, breach of contract, and negligence. With respect to Barr’s latter three claims, Barr has failed to challenge on appeal the court’s basis for granting summary judgment for the Appellee. We therefore find that Barr has forfeited appellate review of those claims. See 4th Cir. R. 34(b). With respect to Barr’s claim of racial discrimination, we have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Barr v. Lexington County Sch. Dist., No. 3:07-cv-01351-JFA-PJG (D.S.C. Mar. 11, 2009). 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.
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Mike S. Scott appeals the district court’s order denying relief on his 42 U.S.C. § 1983 (2006) complaint. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Scott v. Maynard, No. 8:07-cv-03080-AW (D.Md. Dec. 9, 2009). 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.
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OPINION
PER CURIAM.
While incarcerated in the Dauphin County Prison, James Johnson filed a pro se civil rights complaint in the United States District Court for the Middle District of Pennsylvania. See 42 U.S.C. § 1983. Johnson alleged that the Warden and Deputy Warden (the “Defendants”) violated his civil rights while he was on lock down status.1 The matter was referred to a Magistrate Judge, who granted Johnson’s motion to amend his complaint. The order directed that Johnson file his amended complaint on or before November 7, 2008, and include “any and all defendants whom [he] wished to name” and “appropriate allegations of the defendant^’] personal involvement.” Johnson, who was released from prison on October 23, 2008, failed to file an amended complaint.
The Defendants filed a motion to dismiss, arguing, inter alia, that Johnson’s complaint failed to allege that they were personally involved in the alleged violations of his civil rights. The Magistrate Judge recommended that the motion to *681dismiss be granted because Johnson sought damages against the Defendants under a respondeat superior theory. Johnson did not oppose the motion to dismiss. The District Court adopted the Magistrate Judge’s Report and Recommendation, and granted the Defendants’ motion to dismiss. Johnson appealed.
We have jurisdiction pursuant to 28 U.S.C. § 1291, and exercise plenary review over the District Court’s grant of the Defendants’ motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). See Phillips v. County of Allegheny, 515 F.3d 224, 230 (3d Cir.2008). We accept as true all of the allegations contained in the complaint and draw reasonable inferences in favor of the plaintiff. See Erickson v. Pardus, 551 U.S. 89, 93-94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (per curiam). To survive dismissal, a complaint must contain sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, — U.S. —, —, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (citing Bell Atlantic Corp. v. Tivombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)).
It is well settled that liability under § 1983 may not based on the doctrine of respondeat superior. See Durmer v. O’Carroll, 991 F.2d 64, 69 n. 14 (3d Cir.1993). Instead, the plaintiff must show that the official’s conduct caused the deprivation of a federally protected right. See Kentucky v. Graham, 473 U.S. 159, 166, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985). More particularly, the plaintiff must allege that the defendant was personally involved in the deprivation. See Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir.1988). “Personal involvement can be shown through allegations of personal direction or of actual knowledge and acquiescence.” Id.
Johnson’s complaint made no allegation whatsoever concerning the Defendants’ involvement in the alleged denials of his constitutional rights. As the Magistrate Judge correctly explained, Johnson nowhere alleged that the Defendants directly participated in, or had knowledge of, the claims set forth in the complaint. Nor did Johnson allege that the Defendants acquiesced in the alleged unconstitutional misconduct or failed to properly train subordinate employees.
For these reasons, this appeal presents us with no substantial question. Accordingly, we will summarily affirm. See I.O.P. 10.6.
. In particular, Johnson claimed that the Defendants denied him telephone privileges, law library access, family visits, and the right to attend church services. In addition, Johnson alleged that prison guards assaulted him, took his personal property, and forced him to go to court "without underpants or socks or a haircut or shave.” Johnson did not name these prison guards in his complaint, include them as John Doe defendants, or request discovery to learn their identities.
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OPINION
PER CURIAM.
In December 2008, Appellant Mary White commenced this action by filing a “Notice of Appeal” in the District Court, which the court treated as a complaint. This filing sought review of several rulings made by New Jersey Supreme Court Chief Justice Stuart Rabner in White’s various state court proceedings. White requested that the District Court “[ujphold my Constitutional Rights, including but not limited to a fair hearing in an unbiased court,” provide her with “the transcripts and representation needed for equal access to justice,” and “[rjecuse [Chief Justice Rabner] ... from presiding over any of [White’s] hearings and to conduct a Judicial Review based on the six complaints filed against him this year.” In June 2009, the District Court dismissed White’s claims sua sponte, concluding that the Rooker-Feldman doctrine and principles of judicial immunity barred the court’s review.1 This appeal followed.2
The District Court did not err in dismissing White’s claims. The Rooker-Feldman doctrine bars a federal district court from considering “cases brought by state-court losers complaining of injuries caused by state-court judgments rendered before the district court proceedings commenced and inviting district court review and rejection of those judgments.” Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284, 125 S.Ct. 1517, 161 L.Ed.2d 454 (2005). Although this doctrine is narrow, see id., we agree with the District Court that it applies here to White’s challenge to the decisions in her various state court proceedings. Her *683claim against Chief Justice Rabner individually is barred as well. Under 42 U.S.C. § 1983, “in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable.” In requesting Chief Justice Rabner’s recusal and “judicial review,” White did not establish that he violated a declaratory decree or that declaratory relief was unavailable.
Accordingly, we will summarily affirm the District Court’s order dismissing White’s claims. See 3d Cir. LAR 27.4; 3d Cir. I.O.P. 10.6.
. The court noted that White had recently filed a similar complaint before another judge in the same District. In that earlier case, the court dismissed White’s complaint sua sponte, and we summarily affirmed on appeal. See White v. Sup.Ct. of N.J., 319 Fed.Appx. 171 (3d Cir.2009) (non-precedential opinion).
. We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291.
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OPINION
PER CURIAM.
Michael John Piskanin, Jr. appeals from an order of the United States District Court for the Western District of Pennsyl*684vania that dismissed his petition for a writ of habeas corpus as moot. Because the appeal presents no substantial question, we will summarily affirm the District Court’s judgment.
I.
Piskanin filed a habeas petition and supplement in the District Court, seeking pretrial relief regarding a pending state court trial. At the time he filed his petition, he was awaiting trial in Butler County, Pennsylvania, on “check related charges,” filed at Nos. 142 and 822 of 2006, that he believed were barred by double jeopardy due to convictions on the same or similar charges in Lehigh County for which he already had been tried. He also raised a claim that his rights to presentment to a grand jury and indictment by a grand jury were violated. Piskanin contended that he had exhausted his double jeopardy issue by way of a state habeas petition in Butler County, an appeal to the Pennsylvania Superior Court, and petition for allowance of appeal to the Pennsylvania Supreme Court.1 The assigned Magistrate Judge issued a report and recommendation to dismiss the habeas petition, determining sua sponte that Piskanin’s claims were unexhausted. Piskanin filed objections, asserting that he had made an agreement with the Lehigh County prosecutor to have all pending charges tried in a single trial, that he was found guilty of some charges and acquitted of other charges in April 2005, and that in December 2005, the Butler County prosecutor initiated charges for offenses that already were part of the Le-high County prosecution. Piskanin again contended that he had exhausted all of his available state court remedies in the state courts. The District Court adopted the report and recommendation and dismissed the petition in an order entered February 25, 2008. Piskanin filed a notice of appeal, as well as an application for a COA.
Our Court granted a COA, and directed the parties to show cause why the District Court’s order entered February 25, 2008 should not be vacated and the case summarily remanded pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6, so that the District Court might consider the habeas petition with the benefit of the state court record.2 After receiving no responses, this Court entered an order remanding the matter to the District Court with instructions to consider Piskanin’s habeas petition with the benefit of the state court record. See Piskanin v. Krysevig, C.A. No. 08-1683 (3d Cir. Nov. 21, 2008).
On remand, the District Court dismissed Piskanin’s petition, noting that it was “in receipt of a copy of an Order of the Court of Common Pleas of Butler County dated December 19, 2008, dismissing the charges [at Nos. 142 and 822 of 2006] against Petitioner.” Dist. Ct. Mem. Order at 1. The Court reasoned that habeas relief was not available because habeas relief is only available when a petitioner seeks to invalidate the duration of his confinement, and because Piskanin had attained all the relief he sought, i.e., dismissal of the charges against him. The Court declined to issue a COA. Piskanin timely appealed, and has filed a petition for a COA. Piskanin has also indicated his opposition to this Court’s *685notification that it might pursue summary action.
II.3
Piskanin argues in his filings in this Court that the District Court wrongly dismissed his petition as moot. He argues that because a Nolle Prosequi was entered in the Butler County case, rather than an outright dismissal of the charges, under Pennsylvania law, the disposition “does not effectively afford lasting relief to petitioner.” See Commonwealth v. Ahearn, 543 Pa. 174, 670 A.2d 133, 135 (1996) (“Since a nolle prosequi acts neither as an acquittal nor a conviction, double jeopardy does not attach to the original criminal bill or information.”). He asks this Court to declare that the Butler County charges are violative of the Double Jeopardy clause.
A federal court may decide a case only if it presents an Article III case or controversy. See Spencer v. Kemna, 523 U.S. 1, 7, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998). The relevant question is whether Piskanin has suffered, or is threatened with, “an actual injury traceable to the defendant and likely to be redressed by a favorable judicial decision.” Id. Piskanin has not demonstrated any concrete and continuing injury or collateral consequence that remains following the entry of nolle prosequi in the Butler County proceedings. He seeks to be “protected] ... from having to raise double jeopardy claims in future criminal prosecutions involving the same charges and fact base.” COA petition at 2. However, the possibility that the Commonwealth will at some point in the future reinstate the Butler County charges against him is “so speculative that any decision on the merits by the District Court would be merely advisory and not in keeping with Article Ill’s restriction of power.” Burkey v. Marberry, 556 F.3d 142, 149 (3d Cir.2009) (delayed commencement of habeas petitioner’s supervised release was not a “continuing injury” as likelihood that a grant of relief would affect the term of his supervised release was speculative). We thus find that the District Court properly dismissed Piskanin’s habeas petition as moot.
For the foregoing reasons, we will summarily affirm the District Court’s judgment.
. In his habeas petition, he stated that both appellate courts denied relief, but he also stated that his attempt to appeal to the state Supreme Court was obstructed by prison officials. In his earlier application for a certificate of appealability ("COA”) filed in this Court (filed in Court of Appeals No. 08-1683), he clarified that he exhausted his state court appeals but was unable to appeal to the United States Supreme Court due to interference.
. See Evans v. Court of Common Pleas, 959 F.2d 1227, 1234-35 (3d Cir.1992) (pretrial federal habeas review may exist for state defendant seeking to prevent Double Jeopardy Clause violation).
. We have jurisdiction pursuant to 28 U.S.C. § 1291 to consider an appeal of the District Court’s final decision. Even without a certificate of appealability, we retain jurisdiction to consider whether the District Court complied with our mandate. See Gibbs v. Frank, 500 F.3d 202, 205-06 (3d Cir.2007); Mickens-Thomas v. Vaughn, 355 F.3d 294, 303 (3d Cir.2004). The District Court here did not, of course, strictly follow our mandate; i.e., consider Piskanin's habeas petition with the benefit of the state court record. However, as noted below, we agree with the District Court that Piskanin's petition is moot. The District Court thus properly dismissed the petition instead of strictly complying with the mandate.
To the extent a certificate of appealability is necessary, we deny Piskanin’s application. Jurists of reason would not debate the propriety of the District Court's decision to dismiss the petition as moot. See Miller-El v. Cock-rell, 537 U.S. 322, 338, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (citing Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000)).
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ORDER
Angela Westlake, a former police officer with the Springfield Police Department, appeals from the district court’s grant of summary judgment on her retaliation claim under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. She challenges the court’s finding that no evidence supported a causal connection between a complaint she made regarding a sexually hostile work environment and her discharge. We affirm.
According to Westlake, she was fired in retaliation for complaining to a superior officer that Sergeant Terry Mazrim asked her out on a date and then harassed her when she refused. She says she complained to Lieutenant Lea Joy and asked for help, though she did not recall when. Lieutenant Joy, however, disagreed with Westlake’s account; she maintained that Westlake never made any allegations to her of a sexually hostile work environment.
Throughout Westlake’s three-and-a-half year tenure, the police department re*157ceived complaints from the public about Westlake’s lack of professionalism and rude conduct. Several internal affairs investigations lead to her being disciplined, and subsequent rule violations resulted in her eventual discharge.
The court granted summary judgment for the department, finding that Westlake had not put forth evidence sufficient to support her claim of retaliation under either the direct or indirect method of proof. Regarding the direct method (the only claim Westlake presses on appeal), the court found that Westlake did not establish a prima facie case. Although she presented sufficient evidence that she engaged in a statutorily protected activity (by making a complaint) and suffered an adverse employment action (by being discharged), she did not present evidence sufficient to show any causal connection between the two. The court explained that Westlake offered no evidence of when she complained to Lieutenant Joy, and consequently could not rely upon the timing of her complaint to show a causal connection with her discharge.
On appeal Westlake glosses over her inability to establish the timing of her complaint about Sergeant Mazrim, and instead seeks to infer discriminatory intent from the overlapping time between Sergeant Mazrim’s improper conduct (which she dates from September 2002 to late 2003) and her first disciplinary action (which she dates to May 2003). It is true that suspicious timing may permit a plaintiff to survive summary judgment if there is other evidence supporting an inference of a causal connection between a statutorily protected activity and an adverse employment action. Magyar v. Saint Joseph Reg’l Med. Ctr., 544 F.3d 766, 772 (7th Cir.2008). But the timing of Sergeant Mazrim’s improper conduct does not help Westlake establish when she engaged in a statutorily protected activity. See 42 U.S.C. § 2000e-3(a); Durkin v. City of Chicago, 341 F.3d 606, 614 (7th Cir.2003). Because Westlake presented no evidence about the timing of the complaint, no causal connection can be inferred.
AFFIRMED.
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ORDER
Jorge Cardoso-Lopez, a Mexican citizen, pleaded guilty to being in the United States without permission after he previously was removed, see 8 U.S.C. § 1326(a), and the district court sentenced him to 41 months’ imprisonment, the high end of the guidelines range. Cardoso-Lopez appeals, but his appointed counsel now seeks to *159withdraw under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), because he cannot discern a non-frivolous issue to pursue. We review only the potential issues identified in counsel’s facially adequate brief and Cardoso-Lo-pez’s response under Circuit Rule 51(b). See United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir.2002).
The sole issue counsel considers is whether Cardoso-Lopez could challenge the reasonableness of his prison sentence. At sentencing Cardoso-Lopez argued that, because the Western District of Wisconsin lacks a “fast-track” program for illegal-reentry eases, a below-guidelines sentence was necessary to achieve parity with defendants in other districts who benefit from such programs. See U.S.S.G. § 5K3.1; see generally United States v. Pacheco-Diaz, 506 F.3d 545, 552-53 (7th Cir.2007). Although we have not yet weighed in on what effect, if any, Kimbrough v. United States, 552 U.S. 85, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007), has on a district court’s discretion to consider fast-track disparities, see United States v. Arrelucea-Zamudio, 581 F.3d 142, 149-53 (3d Cir.2009); United States v. Gonzalez-Zotelo, 556 F.3d 736, 740 (9th Cir.), petition for cert. filed (U.S. May 8, 2009) (No. 08-10326); United States v. Vega-Castillo, 540 F.3d 1235, 1238-39 (11th Cir.2008), cert. denied, — U.S. -, 129 S.Ct. 2825, 174 L.Ed.2d 556 (2009); United States v. Rodriguez, 527 F.3d 221, 229-30 (1st Cir.2008); United States v. Gomez-Herrera, 523 F.3d 554, 562-64 (5th Cir.), cert. denied, - U.S. -, 129 S.Ct. 624, 172 L.Ed.2d 617 (2008), this case would not require us to join the debate. The district judge explained that, even if she was otherwise inclined to consider reducing a sentence because of the absence of a fast-track program in Wisconsin, she would not do so in Cardoso-Lopez’s case because he has an extensive and violent criminal history and was arrested yet again within weeks of illegally reentering the country. The district court considered Cardoso-Lo-pez’s argument, but was not required to accept it, see United States v. Filipiak, 466 F.3d 582, 583 (7th Cir.2006), and we therefore agree with counsel that it would be frivolous to further pursue this challenge. Because Cardoso-Lopez was sentenced within the properly calculated guidelines range, we would presume his sentence reasonable on appeal, see United States v. Turner, 569 F.3d 637, 640-41 (7th Cir.2009), and counsel has not identified any reason to cast doubt on that presumption.
We turn next to Cardoso-Lopez’s Rule 51(b) response, in which he argues that his guilty plea should be set aside because neither the government nor the district court informed him of his right to consular assistance under Article 36 of the Vienna Convention on Consular Relations, April 24,1963, 21 U.S.T. 77,596 U.N.T.S. 261. Although Cardoso-Lopez recently submitted to the district court a motion to set aside his conviction on this basis, he did not previously raise the argument, so we would review only for plain error. See Fed.R.CrimP. 52(b); United States v. Villarreal-Tamayo, 467 F.3d 630, 632 (7th Cir.2006).
Article 36 of the Vienna Convention provides that arresting authorities must inform a foreign national of his right to contact the consulate and must notify the consulate of the arrest. See Sandoval v. United States, 574 F.3d 847, 850 (7th Cir.2009); see also 28 C.F.R. § 50.5(a)(3) (directing U.S. Attorney to notify appropriate consul of foreign national’s arrest). The obligation to inform thus lies solely with the government; contrary to Cardo-so-Lopez’s suggestion, district courts have no role under Article 36, and therefore the court’s failure to inform him of his consu*160lar rights could not have been error. See Osagiede v. United States, 543 F.3d 399, 402 (7th Cir.2008) (explaining that Article 36 imposes obligations on the detaining authority). Nor does a failure by arresting authorities to comply with Article 36 trigger automatic reversal of a conviction, United States v. Ademaj, 170 F.3d 58, 67 (1st Cir.1999); see also Sanchez-Llamas v. Oregon, 548 U.S. 331, 337, 126 S.Ct. 2669, 165 L.Ed.2d 557 (2006) (holding that arresting officer’s failure to comply with Vienna Convention’s consular-notification provision does not warrant suppression of evidence); United States v. Bustos De La Pava, 268 F.3d 157, 165-66 (2d Cir.2001) (concluding that government’s failure to notify defendant of right to contact consulate does not require dismissal of indictment), and Cardoso-Lopez has not identified any conceivable effect that contacting the Mexican consulate might have had on his decision to plead guilty, see Breard v. Greene, 523 U.S. 371, 377, 118 S.Ct. 1352, 140 L.Ed.2d 529 (1998) (explaining that, even if the Vienna Convention creates enforceable rights, a showing of prejudice is necessary to overturn a conviction); Osagiede, 543 F.3d at 413 (examining possible ways government’s failure to inform Nigerian citizen of right to consular notification might have been prejudicial). We therefore conclude that any challenge to Cardoso-Lopez’s conviction on this basis would be frivolous.
Counsel’s motion to withdraw is GRANTED, and Cardoso-Lopez’s motion for substitute counsel is DENIED. The appeal is DISMISSED.
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ORDER
A disciplinary board found inmate Larry Boyd guilty of conspiring to forge a document in violation of prison rules at Wabash Valley Correctional Facility in Indiana. The board punished Boyd by stripping him of 30 days’ good-time credit and imposing other sanctions. After exhausting his administrative remedies, Boyd petitioned the district court for collateral review under 28 U.S.C. § 2254. He appeals the denial of that petition.
An education supervisor at the prison found two forged diplomas in the photocopier near her office. Two names, Boyd’s and fellow prisoner Gregory Hayes’s, had been taped over the original name. Robert Mohler, a prisoner working as a library clerk, admitted to the supervisor that he had taped the names and made the copies. Because Boyd’s name was on a forged diploma, the prison charged Boyd with attempting or conspiring to create a forgery.
Before his hearing Boyd asked to call Mohler as a witness. Although there is no record of it, Boyd swears in his petition that he also requested another witness (in his brief, Boyd says it was Hayes), and that a prison official assured him that these two witnesses would be called. Neither witness appeared personally at Boyd’s disciplinary hearing, but Mohler furnished a written statement asserting, “Mr. Boyd I do not know nor did he ask me to do anything. He never asked me to do any of this for him.” The submission concludes, *162“Statements reflects [sic] testimony.” Boyd submitted his own written statement asserting that he already had a general equivalency degree, that he therefore had no need for a forged diploma, and that he was innocent. During the proceedings, one of the hearing officers considered whether Boyd had paid for the forgery, but no evidence of payment emerged. In reaching its decision to impose discipline, the board explained that it relied on the education supervisor’s conduct report, Boyd’s own statement, and one of the forged diplomas. The board concluded that the accusation of forgery was “accurate and true” and therefore found Boyd guilty, for which he lost 30 days of good-time credit.
Boyd challenges the disciplinary proceedings on multiple grounds. First, he argues that the proceedings violated provisions of Indiana’s Adult Disciplinary Procedures, but violations of state law do not justify collateral relief under 28 U.S.C. § 2254. See Holman v. Gilmore, 126 F.3d 876, 884 (7th Cir.1997) (citing Pulley v. Harris, 465 U.S. 37, 41, 104 S.Ct. 871, 79 L.Ed.2d 29 (1984)).
Boyd’s next claim is that the hearing violated due process in several ways. He first argues that the mere presence of his name on a forged diploma was not sufficient evidence for discipline. But due process in the prison disciplinary context requires only “some evidence” to support a decision. See Johnson v. Finnan, 467 F.3d 693, 695 (7th Cir.2006) (citing Superintendent v. Hill, 472 U.S. 445, 105 S.Ct. 2768, 86 L.Ed.2d 356 (1985)). And so long as the board’s conclusion could be deduced from it, see Hill, 472 U.S. at 455, 105 S.Ct. 2768, even “meager” evidence will suffice, see id. at 457, 105 S.Ct. 2768. Although we have cautioned that the evidence used must point to the prisoner’s guilt, see Lenea v. Lane, 882 F.2d 1171, 1175 (7th Cir.1989), it need not point exclusively in that direction, see Hill, 472 U.S. at 457, 105 S.Ct. 2768. Boyd’s name taped on the diploma in the photocopier suffices because it supports the common-sense inference that he wanted his name on a forged diploma.
Boyd next contends that he was denied his due process right to call witnesses on his behalf. See Wolff v. McDonnell, 418 U.S. 539, 566, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). He attests that his verbal request to call Hayes was neither documented nor honored, even though a prison official said that it would be. The prison denies that Boyd made this request, but even if we assume that Boyd requested Hayes’s appearance, and did so in compliance with prison rules, Boyd has failed to demonstrate prejudice. See Piggie v. Cotton, 342 F.3d 660, 666 (7th Cir.2003). He has not explained what Hayes’s testimony would have been, nor how it would have helped him. Without any harm from Hayes’s absence, due process was not offended. See id.
Boyd also complains that the substitution of Mohler’s written statement for Mohler’s live presence at the hearing violated Boyd’s due process right to call witnesses. But as with his request for Hayes, Boyd has failed to explain how Mohler’s absence prejudiced him. Boyd insists only that Mohler’s absence meant that no one could ask him why he taped Boyd’s name to the diploma. But Boyd does not tell us how Mohler would have answered that question or how the answer would have helped him. Fishing for unspecified statements from potential witnesses is not among the due process protections afforded prisoners in disciplinary proceedings. See Wolff, 418 U.S. at 556, 94 S.Ct. 2963.
Finally, Boyd claims that the supposed sparsity of the record, the alleged *163failure to let Boyd call witnesses, and a hearing officer’s remark that prison officials lacked evidence that Boyd paid for the forgery together mean that the board was biased against him. Boyd was entitled to a neutral and detached decision-maker, see Pannell v. McBride, 306 F.3d 499, 502 (7th Cir.2002) (citing Wolff, 418 U.S. at 571, 94 S.Ct. 2963), but he has not shown that he got anything less. The officer’s remark shows only that prison officials did not have evidence that Boyd paid for the forgery; payment, however, was not necessary to sustain the charge. And we have already explained that the causes of Boyd’s other concerns do not offend due process.
Accordingly, we Affirm the district court’s judgment.
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ORDER
Charles Rutherford pleaded guilty to possession of crack with intent to distribute. See 21 U.S.C. § 841(a)(1). Because of the amount of crack and his prior drug conviction, he faced a minimum of 10 years imprisonment. See id. at § 841(b)(1)(B). In the plea agreement Rutherford waived his right to challenge the conviction or sentence on direct appeal or in a postcon-viction proceeding, and also promised to cooperate with authorities. In exchange the government agreed to consider moving for a prison term below the guidelines range and, possibly, the statutory minimum. See 18 U.S.C. § 3553(e); U.S.S.G. § 5K1.1. Rutherford later moved to withdraw his guilty plea when he learned that the government might not move for a sentence below the mandatory minimum. The district court denied Rutherford’s motion and, after the government moved for a term below the guidelines range but not below the statutory minimum, sentenced him to 10 years. Rutherford filed a notice of appeal, but his appointed counsel requests permission to withdraw because he does not believe there is a nonfrivolous basis for appeal. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Rutherford objects to counsel’s motion. See CIR. R. 51(b). We confine our review to the potential issues identified in counsel’s supporting brief and Rutherford’s response. See United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir.2002).
Rutherford wants his guilty plea set aside, so counsel evaluates whether Rutherford could challenge the plea colloquy based on the district court’s failure to advise him in open court that he had a right at trial to confront adverse witnesses. See Fed.R.Crim.P. 11(b)(1)(E). Counsel correctly observes that, despite this omission, the district court substantially complied with Rule 11 during Rutherford’s change-of-plea hearing. United States v. Cross, 57 F.3d 588, 591 (7th Cir.1995). Moreover, Rutherford’s written plea agreement, which he acknowledged having read and understood, advised him of his right to confront adverse witnesses. The omission was therefore harmless. See United States v. Driver, 242 F.3d 767, 769 (7th Cir.2001).
Rutherford also wishes to challenge the district court’s denial of his motion to withdraw his guilty plea. That motion asserts that Rutherford would not have pleaded guilty had he known that the gov*165ernment was not required to move for a sentence below the mandatory minimum. In denying the motion, the district court concluded that Rutherford had understood the government’s discretion at sentencing, and we agree with counsel that the record supports the court’s conclusion. At Rutherford’s Rule 11 hearing, the court went out of its way to emphasize that the government is not required to make a motion. The court explained that even if he cooperates, the government may decide not to recommend a sentence below the statutory minimum. Rutherford acknowledged that he understood.
Next, counsel considers whether Rutherford could challenge the validity of his appeal waiver. The waiver precludes Rutherford from challenging “any and all issues relating to this plea agreement and conviction and to the sentence ... on any ground.” Where, as here, the underlying guilty plea is valid, we will enforce the appeal waiver. See United States v. Hare, 269 F.3d 859, 860 (7th Cir.2001); United States v. Feichtinger, 105 F.3d 1188, 1190 (7th Cir.1997). The validity of Rutherford’s waiver also forecloses the other challenges counsel considers concerning the reasonableness of the sentence and the effectiveness of counsel.
Accordingly, we GRANT the motion to withdi'aw and DISMISS the appeal.
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ORDER
On November 15, 2005, Lonnie Jennings sold crack cocaine to a government informant, Justin Stokes. Jennings was subsequently convicted, after a two-day jury trial, of knowingly and intentionally distributing in excess of 50 grams of cocaine base in the form of crack cocaine, and conspiring to do the same. The district court sentenced Jennings to 240 months of imprisonment, the mandatory minimum under 21 U.S.C. § 841(b)(l)(A)(iii). Jennings appeals both his conviction and his sentence. We affirm.
Jennings first challenges his conviction, arguing that the district court abused its discretion by not allowing a forensic chemist, Wayne Morris, to provide expert testimony on his behalf. Jennings hoped to use Morris’s testimony to disprove the government’s claim that the substance Jennings had sold to Stokes was crack. Three witnesses testified in support of the government. First, Peter Ausili, the government’s forensic chemist, testified that the substance sold by Jennings was 54 grams of an off-white rocklike substance containing “cocaine base.” Second, FBI agent Frederick Osborne, who was qualified as an expert in identifying crack cocaine, testified that in his opinion, the substance was crack. Finally, FBI agent Christopher Crocker testified that Jennings had admitted that he delivered crack to Stokes.
Prior to being called to testify, Morris prepared a three-page report that was filed with the district court. Because of uncertainty over the nature of Morris’s anticipated testimony, the district court also questioned Morris outside the presence of the jury. In court, Morris explained that he agreed with the government’s forensic chemist, Peter Ausili, that the substance found in Jennings’s possession was the non-salt form of cocaine hydrochloride (whieh Ausili referred to as “cocaine base.”) In Morris’s opinion, however, it was incorrect to use the term “cocaine base” to refer to this substance. Morris would have testified that the correct term for the non-salt form of cocaine was either “cocaine” or “cocaine free base,” and that the term “cocaine base” was meaningless. From this, Jennings would have argued that there was no basis for determining that the substance he sold was cocaine base in the form of crack, as charged in the indictment.
“Cocaine base” is the term used in 21 U.S.C. § 841(b)(1)(A)(iii). Interpreting a statute is a legal question for the court, not a fact issue on which expert testimony is appropriate. Fed.R.Evid. 702; United States v. Caputo, 517 F.3d 935, 942 (7th Cir.2008) (“The only legal expert in a federal courtroom is the judge.”). Courts routinely use the phrase “cocaine base” to describe the non-salt form of cocaine. See, e.g., Kimbrough v. United States, 552 U.S. 85, 128 S.Ct. 558, 566, 169 L.Ed.2d 481 *167(2007); United States v. Edwards, 397 F.3d 570, 574 (7th Cir.2005). Morris’s proffered testimony criticizing that choice of language is irrelevant and potentially confusing. Because Morris’s testimony would have done nothing to help the jury understand the evidence before it, the district court correctly refused to permit Morris to testify.
Jennings also argues that the twenty-year prison term he received pursuant to 21 U.S.C. § 841 violates the Fifth and Eighth Amendments to the Constitution. We have previously rejected the argument that the mandatory minimum sentences for crack cocaine offenses violate the Constitution. See United States v. Smith, 34 F.3d 514, 525 (7th Cir.1994) (rejecting Eighth Amendment challenge); United States v. Lawrence, 951 F.2d 751, 755 (7th Cir.1991) (rejecting due process and equal protection challenge). Jennings relies on a 2007 report of the Sentencing Commission to call into question the continuing vitality of the disparity in punishment for crack and powder cocaine. See United States Sentencing Commission, Report to Congress: Cocaine and Federal Sentencing Policy (2007). The report asks Congress to take legislative action to reduce this disparity. But Jennings has not explained why the report casts doubt on the constitutionality — rather than the wisdom — of the 100-to-l crack/powder ratio. The Sentencing Commission has been critical of the 100-to-l ratio for over a decade, calling for a 1-to-l ratio in 1995, a 5-to-l ratio in 1997, and a 20-to-l ratio in 2002. See Kimbrough, 128 S.Ct. at 569. During that time, we have continued to rely on Smith and Lawrence. See United States v. Taylor, 522 F.3d 731, 736 (7th Cir.2008) (collecting cases). We see no reason to reexamine that well-settled precedent here.
Accordingly, the judgment of the district court is AFFIRMED.
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ORDER
You Ke Chen, a Chinese national from Fujian province, sought asylum in the United States, alleging that family-planning officials threatened to sterilize him and forcibly abort his wife’s pregnancy for violating China’s one-child policy. The Immigration Judge and the Board of Immigration Appeals denied his petition for asylum, concluding that Chen had not testified credibly — based, in part, on inconsistencies between testimony he gave at his *171credible-fear interview and at his administrative hearing, but also because Chen presented no evidence contradicting a State Department report stating that abortion certificates, like the one he submitted, are not given for involuntary abortions. We deny the petition for review.
Chen based his application for asylum on an incident with family-planning officials that he says sparked his flight from China. In the application he said that the officials learned that his wife had become pregnant with a second child in violation of the family-planning policies and came looking for her. His wife, though, fled before their arrival. When they arrived, Chen said they kicked in the door and later slapped him twice when he denied knowing his wife’s whereabouts. He said the officials threatened to detain and sterilize him, but he managed to escape as he was being handcuffed. Chen stated that he remained in hiding until a friend convinced him that fleeing to the United States was a way of avoiding capture and eventual sterilization. The incident resisting family-planning officials, Chen claimed, qualified as past persecution and also supported a fear of future persecution were he returned to China.
Chen gave a new story, however, at his asylum hearing. There he testified that his wife had undergone an abortion, and he claimed asylum as the spouse of a woman whose pregnancy had been aborted forcibly. He testified that, after filing his asylum application, he received a letter from his wife stating that the family-planning officials had found her and aborted her pregnancy against her will. As proof, Chen submitted the letter and a certificate stating that she had an abortion on March 29, 2006.
The IJ denied Chen’s application for asylum in an oral decision. Relying on inconsistencies in Chen’s testimony and the record, the IJ concluded that Chen was not credible and had not established that his wife’s pregnancy was aborted forcibly. Alternatively, the IJ stated that even if he had found Chen credible, he still would have denied the application based on a lack of corroborating evidence.
Chen appealed to the BIA, which affirmed the IJ’s decision in a separate order. It found no clear error in the IJ’s adverse credibility finding, and singled out what it deemed to be the most persuasive inconsistencies identified by the IJ. For example, Chen bungled his son’s age: at his April 2006 credible-fear interview, he said that his son was eighteen, but according to the birth certificate he submitted, his son was born in May 1999 — which would have made him just shy of seven. Additionally, Chen had testified inconsistently regarding the attack he suffered at the hands of officials: the BIA noted Chen’s statement at his credible-fear interview that two officials attacked and threatened him with an “electric shock,” but at the hearing, Chen stated that he was attacked by four or five people and he did not mention any electric shock. The BIA also declined to credit the abortion certificate as proof that Chen’s wife suffered an involuntary abortion, given that Chen did not refute the State Department’s report on country conditions in the record reflecting that such certificates are provided only for voluntary abortions.
Because the BIA issued a detailed order affirming, but not expressly adopting, the IJ’s decision, we review the BIA’s decision alone.1 Moab v. Gonzales, 500 F.3d 656, 659 (7th Cir.2007). An applicant’s credibil*172ity is determined by the totality of the circumstances, including any oral or written statements (whether or not made under oath) and reports from the Department of State on country conditions. 8 U.S.C. § 1158(b)(1)(B)(iii). We review factual findings for substantial evidence, Krishnapillai v. Holder, 563 F.3d 606, 615 (7th Cir.2009), overturning an agency’s finding only if the evidence compels a contrary conclusion, Capric v. Ashcroft, 355 F.3d 1075, 1086 (7th Cir.2004). And an adverse credibility determination, which we give substantial deference, will virtually doom an application for asylum. Musollari v. Mukasey, 545 F.3d 505, 508 (7th Cir.2008).
Chen now contends that the adverse credibility finding is unsupported because, in his view, the IJ overemphasized minor factual discrepancies, such as those concerning his son’s age and the number of officials who attacked him at his house. He notes that parents commonly misstate their children’s ages and adds that “airport statements” are unreliable.
But Chen fails to recognize that the BIA responded to this argument and rejected it. The BIA acknowledged that those two inconsistencies alone might not have sustained the adverse credibility finding, but concluded that the cumulative impact of other discrepancies in the record were sufficient to uphold it. As for Chen’s “airport statements,” we note that he actually made his comment about the number of officials during his credible-fear interview, which took place two weeks after he had been detained, and he gave no reason to doubt the reliability of the interview beyond he was “in a bad mood” and “could not focus.”
Chen also takes issue with the IJ’s insistence on corroborating evidence. But the IJ’s ruling — an alternative basis for his decision, we note — is not before us on review because the BIA issued a separate opinion that did not rely on the lack of corroboration. See Korniejew v. Ashcroft, 371 F.3d 377, 383 (7th Cir.2004).
Chen next — again without referring to the BIA’s decision — attacks the IJ for invoking Huang v. Gonzales, 453 F.3d 942 (7th Cir.2006), as authority for the sweeping proposition that abortion certificates issued by Chinese hospitals are evidence only of voluntary abortions. The line between a voluntary and a coerced abortion can be blurred, he argues, and here he has also submitted a letter from his wife describing how the abortion was forced.
Again, however, any shortcomings in the IJ’s decision are irrelevant because the BIA in its separate opinion addressed the abortion certificate anew. It noted the State Department’s 2006 profile of China stating that abortion certificates are not issued for involuntary abortions and pointed out that Chen did not contradict those reports. When there is no contradictory evidence in the record, we have upheld reliance on similar government reports. See Xiao v. Mukasey, 547 F.3d 712, 717-18 (7th Cir.2008); Huang, 453 F.3d at 947. Additionally, Chen’s reference to his wife’s letter is unavailing; the BIA gave that letter little weight, questioning — as had the IJ — whether it was actually from his wife. Chen might disagree with the weight the BIA assigned to the letter, but we are far from convinced that the record compels a contrary result.
Last, Chen argues that the IJ ignored the abuse he personally experienced when the family-planning officials slapped him, threatened sterilization, and handcuffed him, and he contends that this experience qualifies as past persecution and also supports a fear of future persecution. But the IJ dismissed Chen’s testimony as incredible, and Chen has pointed to no other *173evidence in the record for us to disturb this conclusion.
Accordingly, the petition is DENIED.
. Puzzlingly, Chen devotes the bulk of his brief to challenging the decision of the IJ, not the BIA's — even though the Board issued a separate order that was detailed and reasoned.
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ORDER
Toya Olds was part of a ring that starting in the mid-1990s sold millions of dollars worth of cocaine in Milwaukee, Wisconsin. She pleaded guilty to conspiracy to distribute cocaine, 21 U.S.C. §§ 846, 841(a)(1), and was sentenced, as a career offender, to 188 months’ imprisonment. Olds did not contest her career-offender designation at sentencing or in her appellate brief, but at oral argument we raised the possibility that the application of the guideline was erroneous because it was based, in part, on a conviction for “second-degree recklessly endangering safety.” See Wis. Stat. § 941.30(2). As we recently held, this offense is not a crime of violence. United States v. Bishop, 341 Fed.Appx. *174239, 240 (7th Cir.2009); see also United States v. Woods, 576 F.3d 400 (7th Cir.2009); United States v. Smith, 544 F.3d 781, 786 (7th Cir.2008). And although we ordinarily we do not evaluate issues not presented by the parties themselves, the error here is plain, United States v. High, 576 F.3d 429, 430-31 (7th Cir.2009), and we are always free to correct a plain error on our own authority, Fed. R. Crim. P. 52(b); United States v. Atkinson, 297 U.S. 157, 160, 56 S.Ct. 391, 80 L.Ed. 555 (1934); United States v. Neal, 512 F.3d 427, 439 n. 11 (7th Cir.2008); United States v. Muriel, 418 F.3d 720, 723 n. 1 (7th Cir.2005).
Olds’s sentence is VACATED, and the case is REMANDED for resentencing.
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ORDER
In 2001, Raymond F. Pitts pled guilty to one count of conspiracy to possess with intent to distribute controlled substances, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B) and 846. At that time, the district court sentenced him to 324 months’ imprisonment and a term of supervised release. At least part of his sentence was based on the United States Sentencing Guidelines provisions governing offenses involving crack cocaine. We affirmed Pitts’ conviction on direct appeal. United States v. Pitts, 322 F.3d 449 (7th Cir.2003).
In 2008, Pitts filed a motion to reduce his sentence pursuant to 18 U.S.C. § 3582(c)(2), which allows a court to modify a term of imprisonment when the original sentence was based on a range that has subsequently been lowered by the Sentencing Commission. Retroactive Amendments 706 and 711 reduced the offense levels for crack cocaine-related crimes, and Pitts sought a reduction of his sentence under those Amendments. Pitts’ original guidelines sentencing range was 324 to 405 months, and .the district court originally sentenced Pitts to the low end of that range. Under the Amendments, Pitts’ new sentencing range was 292 to 365 months, and the court again sentenced him to the low end of the range. Pitts asked the district court to further reduce his sentence and to conduct a full resentencing hearing under United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). The district court declined to conduct a full resentencing or to reduce Pitts’ new sentence below 292 months, citing our opinion in United States v. Cunningham, 554 F.3d 703 (7th Cir.2009), cert. denied, - U.S. -, 129 S.Ct. 2826, 174 L.Ed.2d 552 (2009). Pitts appeals the district court’s decision, although he acknowledges that his claim is foreclosed by Cunningham. He asks that we reconsider our holding in Cunningham in light of the Ninth Circuit’s contrary opinion in United States v. Hicks, 472 F.3d 1167 (9th Cir.2007). In the alternative, he seeks to preserve the issue for Supreme Court review.
In Cunningham, we held that district courts, when reducing a defendant’s sentence pursuant to 18 U.S.C. § 3582(c)(2), lack the authority to reduce the sentence beyond the retroactive guidelines amendment range. 554 F.3d at 709. We also noted that Section 3582(c)(2) proceedings are not full resentencings and may not result in a sentence lower than the amended guidelines range unless the original sentence was lower than the then-applicable guidelines range. 554 F.3d at 708. We were aware of Hicks when we issued our opinion in Cunningham. Indeed, a good part of our opinion in Cunningham explains exactly why we have rejected the Ninth’s Circuit’s reasoning in Hicks. See Cunningham, 554 F.3d at 705-09. We see no reason to reconsider Cunningham now. The district court’s judgment is therefore AFFIRMED.
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ORDER
Jeanie Pelnarsh sued her former employer, R.R. Donnelley & Sons, under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17, alleging that several supervisors and coworkers subjected her to a sexually hostile work environment and that Donnelley retaliated against her for complaining about it. The district court granted summary judgment for Don-nelley on the grounds that Pelnarsh did not have sufficient evidence to establish a retaliation claim, and that she did not timely file an administrative charge of discrimination as to her sexual-harassment claim. Pelnarsh appeals only the dismissal of the sexual-harassment claim. We affirm the judgment.
We construe the following facts in the light most favorable to Pelnarsh. See Winsley v. Cook County, 563 F.3d 598, 602 (7th Cir.2009). Pelnarsh began working at Donnelley’s facility in Pontiac, Illinois, in 1999 and remained with the company until she was fired in January 2006. On October 1, 2005, Pelnarsh transferred to Don-nelley’s facility in Mendota, Illinois. Pel-narsh contends that, during her tenure with the company, male supervisors and coworkers subjected her to constant sexual harassment including physical touching, propositions for sex, and lewd comments about her appearance. After she transferred to Mendota, however, the only unwelcome conduct Pelnarsh endured was a series of haranguing phone calls from Joe Carlberg, her former supervisor in Pontiac. In the calls Carlberg insisted that she continue to work remotely on assignments for him and threatened to make her life miserable if she refused.
When Pelnarsh was terminated in January 2006, Donnelley gave “gross misconduct” as the reason. The company discovered that Pelnarsh had used a company credit card to pay for thousands of dollars of personal expenses. Pelnarsh pleaded guilty to theft in state court and served a 90-day sentence for making these unauthorized purchases. On September 21, 2006, she filed a charge of discrimination with the Equal Employment Opportunity Commission and the Illinois Department of Human Rights; the EEOC issued a right-to-sue letter after the case had been pending for more than 180 days.
Pelnarsh then filed a complaint in district court, and Donnelley moved for summary judgment, asserting as a defense that Pelnarsh had filed her charge of discrimination with the EEOC too late. Pel-narsh opposed the motion, and gave two reasons why she believed that her administrative charge was timely. First, she asserted that she submitted other administrative charges to the EEOC between December 2005 and August 2006, which were well within 300 days of the alleged discriminatory conduct. But Pelnarsh did not offer any evidence that there had been previous charges of discrimination, and the district court concluded that the undisputed evidence established that her only administrative charge was filed with the EEOC on September 21, 2006. Pel-narsh does not contest this conclusion on appeal.
Second, Pelnarsh asserted in response to Donnelley’s motion for summary judgment that Carlberg’s calls constituted sexual harassment, and that she filed her administrative charge within 300 days of *180those calls. To support this assertion, Pel-narsh pointed to her deposition testimony where she verified the accuracy of a letter she had written to the administrative investigator. In the letter Pelnarsh explained: “I didn’t endure any sexual harassment while I was at the Mendota plant. The only harassment that transpired was by Joe Carlberg who constantly called every day.” Pelnarsh described the content of these calls in an unsworn statement accompanying her opposition to summary judgment. The district court refused to credit this statement and noted that her deposition testimony contradicted her position that the sexual harassment continued after she transferred to Mendo-ta.
On appeal Pelnarsh argues that she identified a material question of fact as to when the alleged sexual harassment ceased, and that the district court erred by refusing to allow a jury to decide if her case was timely. We review a grant of summary judgment de novo. Adelman-Reyes v. Saint Xavier Univ., 500 F.3d 662, 665 (7th Cir.2007).
Administrative exhaustion is a prerequisite to filing a lawsuit under Title VII, but the requirement is not jurisdictional. See Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982); Volovsek v. Wis. Dep’t of Agric., Trade, & Consumer Prot., 344 F.3d 680, 687 (7th Cir.2003). Instead, lack of exhaustion, which is Donnelley^ theory in this case, is an affirmative defense on which the company bears the burden of proof. See Salas v. Wis. Dep’t of Corr., 493 F.3d 913, 922 (7th Cir.2007). Thus, summary judgment was appropriate only if Donnelley established through undisputed evidence that Pelnarsh failed to timely file her charge of discrimination with the EEOC. See Laouini v. CLM Freight Lines, Inc., 586 F.3d 473, 475-76 (7th Cir.2009).
Illinois is a deferral state, so Pelnarsh was required to file a charge of discrimination with the EEOC within 300 days of some offending conduct. See 42 U.S.C. § 2000e-5(e)(l); Filipovic v. K & R Express Sys., Inc., 176 F.3d 390, 396 (7th Cir.1999). Since Pelnarsh complains of a hostile work environment, the 300-day period is measured from the date of the last hostile act even if that act would not, standing alone, give rise to a claim of sexual harassment. See Nat’l R.R. Passenger Corp., v. Morgan, 536 U.S. 101, 115-18, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002); Pruitt v. City of Chicago, 472 F.3d 925, 927 (7th Cir.2006). Thus, Pelnarsh’s claim must be based on conduct occurring on or after November 26, 2005. If there is no evidence of hostile conduct after that date, Pelnarsh’s claim was untimely. See Lucas v. Chi. Transit Auth., 367 F.3d 714, 724 (7th Cir.2004). The hostile conduct that Pelnarsh allegedly endured occurred in the Pontiac facility, before her transfer to Mendota on October 1, 2005. To overcome this problem of timing, Pelnarsh insists that the calls she received from Carl-berg after her transfer were hostile acts. Her contention rests on three premises. First, she argues, the calls were constant and their frequency alone constitutes sexual harassment regardless of content. Second, she continues, her former supervisor’s work-related demands were inappropriate because she no longer worked for him. And finally, says Pelnarsh, the calls were hostile because Carlberg threatened to “make her life hell” if she did not continue to work for him.
These calls, as Pelnarsh describes them, do not evince sexual harassment and cannot salvage her claim from being dismissed as untimely. The district court recognized that Pelnarsh did not submit admissible *181evidence concerning the content of these calls, but even if we credit the description in the unsworn statement she submitted at summary judgment, the only reasonable conclusion is that the calls were work related; as Pelnarsh herself explained both in her unsworn statement and her deposition testimony, Carlberg constantly called and made work-related demands on her time. There is no evidence to suggest that these calls were motivated by Pelnarsh’s gender, so they do not serve to further her sexual-harassment claim. See Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 79-81, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998). Moreover, even a threat to “make her life hell,” if made to persuade her to continue doing Carlberg’s work and not because of her gender, cannot be considered sexual harassment since inappropriate conduct inflicted in a gender-neutral fashion is outside the scope of Title VII. See Berry v. Delta Airlines, 260 F.3d 803, 808 (7th Cir.2001). And to the extent that Pelnarsh thinks that any frequent and unwanted calls can constitute harassment under Title VII no matter the content of the calls, her position is frivolous and falls far short of her burden of demonstrating that her workplace was both objectively and subjectively hostile. See Ezell v. Potter, 400 F.3d 1041, 1047 (7th Cir.2005).
Finally, Pelnarsh suggests on appeal that even if her administrative charge was untimely, she should be permitted to go forward with her lawsuit based on the doctrines of equitable tolling and estoppel. But because she failed to raise these doctrines in the district court, they are waived. See Laouini, 586 F.3d at 479; Grayson v. City of Chicago, 317 F.3d 745, 751 (7th Cir.2003). On this record, moreover, neither doctrine is relevant. Estop-pel is primarily intended to redress situations where the employer conceals the very fact of discrimination or otherwise tries to prevent the employee from bringing a lawsuit. See Lucas, 367 F.3d at 723. Equitable tolling would require Pelnarsh to demonstrate that circumstances outside of her control prevented her from timely filing with the EEOC and that she diligently pursued her claims despite those conditions. See Beamon v. Marshall & Ilsley Trust Co., 411 F.3d 854, 860-61 (7th Cir.2005). Pelnarsh could not successfully invoke these doctrines because she knew she was being harassed as early as 1999, and she has not identified any circumstance that prevented timely filing.
AFFIRMED.
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ORDER
John Kowal committed six bank robberies in the Madison, Wisconsin, area between March and September 2008. He pleaded guilty to one count of bank robbery, see 18 U.S.C. § 2113(a), and admitted his involvement in the other five. The district court considered all six robberies when calculating Kowal’s sentencing range, see U.S.S.G. § lB1.2(c), and sentenced him to 78 months’ imprisonment.
Kowal filed a notice of appeal, but his appointed lawyer moves to withdraw under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), because she cannot identify any nonfrivolous ground for appeal. Kowal did not respond to counsel’s submission. See Cir. R. 51(b). Our review is limited to the potential issues identified in counsel’s facially adequate brief. United States v. Cano-Rodriguez, 552 F.3d 637, 638 (7th Cir.2009); United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir.2002). We grant counsel’s motion and dismiss the appeal.
In her Anders submission counsel tells us that Kowal does not want his guilty plea set aside, and thus counsel properly refrains from discussing the adequacy of the plea colloquy or the voluntariness of the plea. See United States v. Knox, 287 F.3d 667, 671-72 (7th Cir.2002). Additionally, at sentencing Kowal did not object to the district court’s application of the sentencing guidelines, and counsel has not suggested any possible basis for disagreeing with the court’s calculations. Instead, the only potential issue identified by counsel is whether Kowal could challenge the reasonableness of his prison sentence.
Kowal had argued for a term below the guidelines range because he is a first-time offender with strong family support and, by his account, no substance-abuse problem. The district court considered these *183factors but concluded that a sentence at the high’ end of the imprisonment range would be appropriate for two principal reasons. First, the court concluded that Kowal represents a significant danger to the community given the number of robberies, and since the guidelines permitted the allocation of just five additional offense levels to account for the entire course of conduct, see U.S.S.G. § 3D1.4; United States v. Maro, 272 F.3d 817, 824 (7th Cir.2001), a term at the high end of the range was warranted. Second, the court found Kowal’s contention that he had no drug or alcohol problem not credible in light of unchallenged, contrary information in the presentence report.
We afford sentences within the guidelines range a presumption of reasonableness. Rita v. United States, 551 U.S. 338, 347, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007); United States v. Sawyer, 558 F.3d 705, 714-15 (7th Cir.2009). In this case, the district court gave meaningful consideration to the factors enumerated in 18 U.S.C. § 3553(a) and concluded that a sentence at the high end of the range was appropriate. Thus, counsel correctly concludes that any argument challenging the reasonableness of Kowal’s prison sentence would be frivolous.
Accordingly, counsel’s motion to withdraw is GRANTED, and the appeal is DISMISSED.
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ORDER
Timothy Hums pleaded guilty to possessing crack cocaine with intent to distribute. See 21 U.S.C. § 841(a)(1). The district court initially sentenced him as a career offender to 300 months in prison. See U.S.S.G. § 4B1.1. On direct appeal, see United States v. Hurns, 295 Fed.Appx. 820 (7th Cir.2008), we vacated that sentence after concluding that a conviction for escape, which served as one of the qualifying predicates for the career-offender designation, was not a “crime of violence” as recently defined by the Supreme Court in Begay v. United States, 553 U.S. 137, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008).
On remand the district court calculated a total offense level of 33 and criminal history category of V, yielding a guidelines imprisonment range of 210 to 262 months. Hums requested a sentence of 12 years; he argued that a criminal-history category of V overstated the severity of his criminal record, that he had no contact with his father while growing up in a crime-infested neighborhood, and that he had taken every opportunity to better himself in prison since the first sentencing. The court imposed a sentence of 150 months’ imprisonment.
Hums filed a notice of appeal, but his appointed lawyer has concluded that the appeal is frivolous and moves to withdraw under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Hums did not respond to counsel’s motion. See Cir. R. 51(b). We confine our review to the potential issues identified in counsel’s facially adequate brief. See United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir.2002).
After noting that our review would be limited to sentencing issues arising from the remand, see United States v. Swanson, 483 F.3d 509, 515 (7th Cir.2007); United States v. Parker, 101 F.3d 527, 528 (7th Cir.1996), counsel identifies two potential issues. The first is the calculation of the guidelines imprisonment range. But as to that question, counsel concedes that Hums never objected to the district court’s calculation, and, moreover, counsel does not suggest any basis for arguing that the offense level or the criminal-history score is incorrect. Thus, a challenge to the imprisonment range would be frivolous.
The second potential issue is the reasonableness of Hurns’s prison sentence. That sentence is significantly below the guidelines range and is presumptively reasonable. See United States v. Liddell, 543 F.3d 877, 885 (7th Cir.2008); United States v. Filipiak, 466 F.3d 582, 583 (7th Cir.2006). And, as counsel points out, the district court took into account Hurns’s arguments for leniency and weighed the sentencing factors in 18 U.S.C. § 3553(a), as required. See, e.g., United States v. Mendoza, 576 F.3d 711, 721 (7th Cir.2009). *185The court told Hums, in assessing his criminal history, that there was much about his “record that doesn’t look too good.” But in Hurns’s favor, the court took note of his difficult childhood and his determination to use his time in prison productively. The district court needed only to give an adequate statement of reasons, consistent with § 3553(a), for its choice of sentence. See United States v. Smith, 562 F.3d 866, 873 (7th Cir.2009). The court did so, and it would thus be frivolous for Hums to argue that his prison sentence is unreasonable.
Accordingly, we GRANT counsel’s motion to withdraw and DISMISS the appeal.
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PER CURIAM.
Jeremiah J. Kerby appeals the district court’s1 denial of his 28 U.S.C. § 2255 motion. Having carefully reviewed the matter, we conclude Kerby’s § 2255 motion is untimely and equitable tolling is not warranted. Thus, we summarily affirm. See 8th Cir. R. 47B.
. The Honorable Donald E. O’Brien, Uniled States District Judge for the Northern District of Iowa.
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ON MOTION
ORDER
Hardie’s Fruit & Vegetable Company-South, LP (“Hardies”) moves to dismiss this appeal for mootness and vacate the September 15, 2008 judgment of the Court of Federal Claims and the July 15, 2008, decision of the Small Business Administration’s Office of Hearings and Appeals (“SBA”). The United States opposes the request to vacate the aforementioned judgment and decision.
Upon consideration thereof,
IT IS ORDERED THAT:
(1) The motion to dismiss is granted.
(2) The motion to vacate is denied.
(3)The mandate will issue in due course.
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ORDER
A disciplinary board found inmate Larry Boyd guilty of conspiring to forge a document in violation of prison rules at Wabash Valley Correctional Facility in Indiana. The board punished Boyd by stripping him of 30 days’ good-time credit and imposing other sanctions. After exhausting his administrative remedies, Boyd petitioned the district court for collateral review under 28 U.S.C. § 2254. He appeals the denial of that petition.
An education supervisor at the prison found two forged diplomas in the photocopier near her office. Two names, Boyd’s and fellow prisoner Gregory Hayes’s, had been taped over the original name. Robert Mohler, a prisoner working as a library clerk, admitted to the supervisor that he had taped the names and made the copies. Because Boyd’s name was on a forged diploma, the prison charged Boyd with attempting or conspiring to create a forgery.
Before his hearing Boyd asked to call Mohler as a witness. Although there is no record of it, Boyd swears in his petition that he also requested another witness (in his brief, Boyd says it was Hayes), and that a prison official assured him that these two witnesses would be called. Neither witness appeared personally at Boyd’s disciplinary hearing, but Mohler furnished a written statement asserting, “Mr. Boyd I do not know nor did he ask me to do anything. He never asked me to do any of this for him.” The submission concludes, *162“Statements reflects [sic] testimony.” Boyd submitted his own written statement asserting that he already had a general equivalency degree, that he therefore had no need for a forged diploma, and that he was innocent. During the proceedings, one of the hearing officers considered whether Boyd had paid for the forgery, but no evidence of payment emerged. In reaching its decision to impose discipline, the board explained that it relied on the education supervisor’s conduct report, Boyd’s own statement, and one of the forged diplomas. The board concluded that the accusation of forgery was “accurate and true” and therefore found Boyd guilty, for which he lost 30 days of good-time credit.
Boyd challenges the disciplinary proceedings on multiple grounds. First, he argues that the proceedings violated provisions of Indiana’s Adult Disciplinary Procedures, but violations of state law do not justify collateral relief under 28 U.S.C. § 2254. See Holman v. Gilmore, 126 F.3d 876, 884 (7th Cir.1997) (citing Pulley v. Harris, 465 U.S. 37, 41, 104 S.Ct. 871, 79 L.Ed.2d 29 (1984)).
Boyd’s next claim is that the hearing violated due process in several ways. He first argues that the mere presence of his name on a forged diploma was not sufficient evidence for discipline. But due process in the prison disciplinary context requires only “some evidence” to support a decision. See Johnson v. Finnan, 467 F.3d 693, 695 (7th Cir.2006) (citing Superintendent v. Hill, 472 U.S. 445, 105 S.Ct. 2768, 86 L.Ed.2d 356 (1985)). And so long as the board’s conclusion could be deduced from it, see Hill, 472 U.S. at 455, 105 S.Ct. 2768, even “meager” evidence will suffice, see id. at 457, 105 S.Ct. 2768. Although we have cautioned that the evidence used must point to the prisoner’s guilt, see Lenea v. Lane, 882 F.2d 1171, 1175 (7th Cir.1989), it need not point exclusively in that direction, see Hill, 472 U.S. at 457, 105 S.Ct. 2768. Boyd’s name taped on the diploma in the photocopier suffices because it supports the common-sense inference that he wanted his name on a forged diploma.
Boyd next contends that he was denied his due process right to call witnesses on his behalf. See Wolff v. McDonnell, 418 U.S. 539, 566, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). He attests that his verbal request to call Hayes was neither documented nor honored, even though a prison official said that it would be. The prison denies that Boyd made this request, but even if we assume that Boyd requested Hayes’s appearance, and did so in compliance with prison rules, Boyd has failed to demonstrate prejudice. See Piggie v. Cotton, 342 F.3d 660, 666 (7th Cir.2003). He has not explained what Hayes’s testimony would have been, nor how it would have helped him. Without any harm from Hayes’s absence, due process was not offended. See id.
Boyd also complains that the substitution of Mohler’s written statement for Mohler’s live presence at the hearing violated Boyd’s due process right to call witnesses. But as with his request for Hayes, Boyd has failed to explain how Mohler’s absence prejudiced him. Boyd insists only that Mohler’s absence meant that no one could ask him why he taped Boyd’s name to the diploma. But Boyd does not tell us how Mohler would have answered that question or how the answer would have helped him. Fishing for unspecified statements from potential witnesses is not among the due process protections afforded prisoners in disciplinary proceedings. See Wolff, 418 U.S. at 556, 94 S.Ct. 2963.
Finally, Boyd claims that the supposed sparsity of the record, the alleged *163failure to let Boyd call witnesses, and a hearing officer’s remark that prison officials lacked evidence that Boyd paid for the forgery together mean that the board was biased against him. Boyd was entitled to a neutral and detached decision-maker, see Pannell v. McBride, 306 F.3d 499, 502 (7th Cir.2002) (citing Wolff, 418 U.S. at 571, 94 S.Ct. 2963), but he has not shown that he got anything less. The officer’s remark shows only that prison officials did not have evidence that Boyd paid for the forgery; payment, however, was not necessary to sustain the charge. And we have already explained that the causes of Boyd’s other concerns do not offend due process.
Accordingly, we Affirm the district court’s judgment.
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ORDER
Charles Rutherford pleaded guilty to possession of crack with intent to distribute. See 21 U.S.C. § 841(a)(1). Because of the amount of crack and his prior drug conviction, he faced a minimum of 10 years imprisonment. See id. at § 841(b)(1)(B). In the plea agreement Rutherford waived his right to challenge the conviction or sentence on direct appeal or in a postcon-viction proceeding, and also promised to cooperate with authorities. In exchange the government agreed to consider moving for a prison term below the guidelines range and, possibly, the statutory minimum. See 18 U.S.C. § 3553(e); U.S.S.G. § 5K1.1. Rutherford later moved to withdraw his guilty plea when he learned that the government might not move for a sentence below the mandatory minimum. The district court denied Rutherford’s motion and, after the government moved for a term below the guidelines range but not below the statutory minimum, sentenced him to 10 years. Rutherford filed a notice of appeal, but his appointed counsel requests permission to withdraw because he does not believe there is a nonfrivolous basis for appeal. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Rutherford objects to counsel’s motion. See CIR. R. 51(b). We confine our review to the potential issues identified in counsel’s supporting brief and Rutherford’s response. See United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir.2002).
Rutherford wants his guilty plea set aside, so counsel evaluates whether Rutherford could challenge the plea colloquy based on the district court’s failure to advise him in open court that he had a right at trial to confront adverse witnesses. See Fed.R.Crim.P. 11(b)(1)(E). Counsel correctly observes that, despite this omission, the district court substantially complied with Rule 11 during Rutherford’s change-of-plea hearing. United States v. Cross, 57 F.3d 588, 591 (7th Cir.1995). Moreover, Rutherford’s written plea agreement, which he acknowledged having read and understood, advised him of his right to confront adverse witnesses. The omission was therefore harmless. See United States v. Driver, 242 F.3d 767, 769 (7th Cir.2001).
Rutherford also wishes to challenge the district court’s denial of his motion to withdraw his guilty plea. That motion asserts that Rutherford would not have pleaded guilty had he known that the gov*165ernment was not required to move for a sentence below the mandatory minimum. In denying the motion, the district court concluded that Rutherford had understood the government’s discretion at sentencing, and we agree with counsel that the record supports the court’s conclusion. At Rutherford’s Rule 11 hearing, the court went out of its way to emphasize that the government is not required to make a motion. The court explained that even if he cooperates, the government may decide not to recommend a sentence below the statutory minimum. Rutherford acknowledged that he understood.
Next, counsel considers whether Rutherford could challenge the validity of his appeal waiver. The waiver precludes Rutherford from challenging “any and all issues relating to this plea agreement and conviction and to the sentence ... on any ground.” Where, as here, the underlying guilty plea is valid, we will enforce the appeal waiver. See United States v. Hare, 269 F.3d 859, 860 (7th Cir.2001); United States v. Feichtinger, 105 F.3d 1188, 1190 (7th Cir.1997). The validity of Rutherford’s waiver also forecloses the other challenges counsel considers concerning the reasonableness of the sentence and the effectiveness of counsel.
Accordingly, we GRANT the motion to withdi'aw and DISMISS the appeal.
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ORDER
On November 15, 2005, Lonnie Jennings sold crack cocaine to a government informant, Justin Stokes. Jennings was subsequently convicted, after a two-day jury trial, of knowingly and intentionally distributing in excess of 50 grams of cocaine base in the form of crack cocaine, and conspiring to do the same. The district court sentenced Jennings to 240 months of imprisonment, the mandatory minimum under 21 U.S.C. § 841(b)(l)(A)(iii). Jennings appeals both his conviction and his sentence. We affirm.
Jennings first challenges his conviction, arguing that the district court abused its discretion by not allowing a forensic chemist, Wayne Morris, to provide expert testimony on his behalf. Jennings hoped to use Morris’s testimony to disprove the government’s claim that the substance Jennings had sold to Stokes was crack. Three witnesses testified in support of the government. First, Peter Ausili, the government’s forensic chemist, testified that the substance sold by Jennings was 54 grams of an off-white rocklike substance containing “cocaine base.” Second, FBI agent Frederick Osborne, who was qualified as an expert in identifying crack cocaine, testified that in his opinion, the substance was crack. Finally, FBI agent Christopher Crocker testified that Jennings had admitted that he delivered crack to Stokes.
Prior to being called to testify, Morris prepared a three-page report that was filed with the district court. Because of uncertainty over the nature of Morris’s anticipated testimony, the district court also questioned Morris outside the presence of the jury. In court, Morris explained that he agreed with the government’s forensic chemist, Peter Ausili, that the substance found in Jennings’s possession was the non-salt form of cocaine hydrochloride (whieh Ausili referred to as “cocaine base.”) In Morris’s opinion, however, it was incorrect to use the term “cocaine base” to refer to this substance. Morris would have testified that the correct term for the non-salt form of cocaine was either “cocaine” or “cocaine free base,” and that the term “cocaine base” was meaningless. From this, Jennings would have argued that there was no basis for determining that the substance he sold was cocaine base in the form of crack, as charged in the indictment.
“Cocaine base” is the term used in 21 U.S.C. § 841(b)(1)(A)(iii). Interpreting a statute is a legal question for the court, not a fact issue on which expert testimony is appropriate. Fed.R.Evid. 702; United States v. Caputo, 517 F.3d 935, 942 (7th Cir.2008) (“The only legal expert in a federal courtroom is the judge.”). Courts routinely use the phrase “cocaine base” to describe the non-salt form of cocaine. See, e.g., Kimbrough v. United States, 552 U.S. 85, 128 S.Ct. 558, 566, 169 L.Ed.2d 481 *167(2007); United States v. Edwards, 397 F.3d 570, 574 (7th Cir.2005). Morris’s proffered testimony criticizing that choice of language is irrelevant and potentially confusing. Because Morris’s testimony would have done nothing to help the jury understand the evidence before it, the district court correctly refused to permit Morris to testify.
Jennings also argues that the twenty-year prison term he received pursuant to 21 U.S.C. § 841 violates the Fifth and Eighth Amendments to the Constitution. We have previously rejected the argument that the mandatory minimum sentences for crack cocaine offenses violate the Constitution. See United States v. Smith, 34 F.3d 514, 525 (7th Cir.1994) (rejecting Eighth Amendment challenge); United States v. Lawrence, 951 F.2d 751, 755 (7th Cir.1991) (rejecting due process and equal protection challenge). Jennings relies on a 2007 report of the Sentencing Commission to call into question the continuing vitality of the disparity in punishment for crack and powder cocaine. See United States Sentencing Commission, Report to Congress: Cocaine and Federal Sentencing Policy (2007). The report asks Congress to take legislative action to reduce this disparity. But Jennings has not explained why the report casts doubt on the constitutionality — rather than the wisdom — of the 100-to-l crack/powder ratio. The Sentencing Commission has been critical of the 100-to-l ratio for over a decade, calling for a 1-to-l ratio in 1995, a 5-to-l ratio in 1997, and a 20-to-l ratio in 2002. See Kimbrough, 128 S.Ct. at 569. During that time, we have continued to rely on Smith and Lawrence. See United States v. Taylor, 522 F.3d 731, 736 (7th Cir.2008) (collecting cases). We see no reason to reexamine that well-settled precedent here.
Accordingly, the judgment of the district court is AFFIRMED.
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ORDER
Jose Claro Molina-Valerio pleaded guilty to being present in the United States without permission after having been removed. See 8 U.S.C. § 1326(a), (b). He was sentenced to 57 months’ imprisonment, to be followed by 3 years’ supervised release if he is not immediately deported. Molina-Valerio filed a notice of appeal, but his appointed counsel moves to withdraw because he does not believe there are any nonfrivolous issues to raise. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Molina-Valerio did not accept our invitation to respond to his lawyer’s submission, see Cir. R. 51(b), so we limit our review to the potential issues identified by counsel. See United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir.2002).
*169Molina-Valerio served 10 years in a Texas prison for aggravated sexual assault of a child and was deported in 2001. He returned to the United States, and by 2004 he was back in prison, this time on an Illinois drug conviction. Federal agents learned that he was in the United States illegally, but elected not to charge him until he had completed his state term. In 2008 he pleaded guilty to illegal reentry and was sentenced to the bottom of the applicable guidelines range.
Counsel first considers whether Molina-Valerio could assert that the indictment was defective because (1) it failed to allege one of the elements of § 1826(a), (b) — the element of intent to reenter, see U.S. v. Carlos-Colmenares, 253 F.3d 276, 278 (7th Cir.2001); and (2) it charged him with violating 6 U.S.C. § 202(4), a noncriminal statute that authorizes U.S. Homeland Security to establish rules governing entry into the United States. Counsel correctly recognizes that these potential arguments are frivolous; defects in an indictment do not deprive a district court of jurisdiction over the case, United States v. Cotton, 535 U.S. 625, 630, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002), and Molina-Valerio waived any non-jurisdie-tional challenges to the indictment by pleading guilty. See United States v. Silvious, 512 F.3d 364, 372 (7th Cir.2008).
Counsel next examines whether Molina-Valerio could argue that his 57-month sentence exceeded § 1326(a)’s two-year maximum statutory sentence for aliens like himself, whose indictment charged him only with being removed from — and later found in — the United States. But as counsel recognizes, in order to authorize a court to increase the sentence under § 1326(b), the government need not charge prior felonies in the indictment. See Almendarez-Torres v. United States, 523 U.S. 224, 226-27, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998); United States v. Price, 516 F.3d 597, 605 (7th Cir.2008).
Counsel also considers whether Molina-Valerio could challenge the volun-tariness of his plea because the district court failed to comply with Federal Rule of Criminal Procedure 11(b)(1)(H) by not informing him of any statutory maximum sentence. But an appeal based on this omission would be frivolous because Molina-Valerio has not expressed an interest in withdrawing his guilty plea. See United States v. Knox, 287 F.3d 667, 671-72 (7th Cir.2002).
Next, counsel asks whether Molina-Valerio could challenge the reasonableness of his sentence, particularly because the government delayed its prosecution of him until the opportunity for a sentence concurrent with his state sentence had been lost. See, e.g., United States v. Barrera-Saucedo, 385 F.3d 533, 537 (5th Cir.2004); United States v. Los Santos, 283 F.3d 422, 428-29 (2d Cir.2002). Our circuit, however, has not determined whether a district court may give a defendant a lesser sentence on this ground, and we have noted that none of the other circuits to opine on the issue has supported its decision with extensive reasoning. See United States v. Villegas-Miranda, 579 F.3d 798, 802, 803 (7th Cir.2009). In any event the district court addressed the argument, concluding that, because Molina-Valerio’s state and federal convictions arose from separate courses of conduct, there was no reason to presume concurrent sentencing would be appropriate. The district court gave detailed and meaningful consideration to all Molina-Valerio’s arguments and the factors set forth in 18 U.S.C. § 3553(a), and this is all it must do. See United States v. Laufle, 433 F.3d 981, 987 (7th Cir.2006). Further, as counsel *170notes, Molina-Valerio’s sentence is within the properly calculated guidelines range and thus is presumed reasonable on appeal. See Rita v. United States, 551 U.S. 338, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007); United States v. Gama-Gonzalez, 469 F.3d 1109, 1110 (7th Cir.2006).
Accordingly, we Grant counsel’s motion to withdraw and Dismiss the appeal.
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ORDER
You Ke Chen, a Chinese national from Fujian province, sought asylum in the United States, alleging that family-planning officials threatened to sterilize him and forcibly abort his wife’s pregnancy for violating China’s one-child policy. The Immigration Judge and the Board of Immigration Appeals denied his petition for asylum, concluding that Chen had not testified credibly — based, in part, on inconsistencies between testimony he gave at his *171credible-fear interview and at his administrative hearing, but also because Chen presented no evidence contradicting a State Department report stating that abortion certificates, like the one he submitted, are not given for involuntary abortions. We deny the petition for review.
Chen based his application for asylum on an incident with family-planning officials that he says sparked his flight from China. In the application he said that the officials learned that his wife had become pregnant with a second child in violation of the family-planning policies and came looking for her. His wife, though, fled before their arrival. When they arrived, Chen said they kicked in the door and later slapped him twice when he denied knowing his wife’s whereabouts. He said the officials threatened to detain and sterilize him, but he managed to escape as he was being handcuffed. Chen stated that he remained in hiding until a friend convinced him that fleeing to the United States was a way of avoiding capture and eventual sterilization. The incident resisting family-planning officials, Chen claimed, qualified as past persecution and also supported a fear of future persecution were he returned to China.
Chen gave a new story, however, at his asylum hearing. There he testified that his wife had undergone an abortion, and he claimed asylum as the spouse of a woman whose pregnancy had been aborted forcibly. He testified that, after filing his asylum application, he received a letter from his wife stating that the family-planning officials had found her and aborted her pregnancy against her will. As proof, Chen submitted the letter and a certificate stating that she had an abortion on March 29, 2006.
The IJ denied Chen’s application for asylum in an oral decision. Relying on inconsistencies in Chen’s testimony and the record, the IJ concluded that Chen was not credible and had not established that his wife’s pregnancy was aborted forcibly. Alternatively, the IJ stated that even if he had found Chen credible, he still would have denied the application based on a lack of corroborating evidence.
Chen appealed to the BIA, which affirmed the IJ’s decision in a separate order. It found no clear error in the IJ’s adverse credibility finding, and singled out what it deemed to be the most persuasive inconsistencies identified by the IJ. For example, Chen bungled his son’s age: at his April 2006 credible-fear interview, he said that his son was eighteen, but according to the birth certificate he submitted, his son was born in May 1999 — which would have made him just shy of seven. Additionally, Chen had testified inconsistently regarding the attack he suffered at the hands of officials: the BIA noted Chen’s statement at his credible-fear interview that two officials attacked and threatened him with an “electric shock,” but at the hearing, Chen stated that he was attacked by four or five people and he did not mention any electric shock. The BIA also declined to credit the abortion certificate as proof that Chen’s wife suffered an involuntary abortion, given that Chen did not refute the State Department’s report on country conditions in the record reflecting that such certificates are provided only for voluntary abortions.
Because the BIA issued a detailed order affirming, but not expressly adopting, the IJ’s decision, we review the BIA’s decision alone.1 Moab v. Gonzales, 500 F.3d 656, 659 (7th Cir.2007). An applicant’s credibil*172ity is determined by the totality of the circumstances, including any oral or written statements (whether or not made under oath) and reports from the Department of State on country conditions. 8 U.S.C. § 1158(b)(1)(B)(iii). We review factual findings for substantial evidence, Krishnapillai v. Holder, 563 F.3d 606, 615 (7th Cir.2009), overturning an agency’s finding only if the evidence compels a contrary conclusion, Capric v. Ashcroft, 355 F.3d 1075, 1086 (7th Cir.2004). And an adverse credibility determination, which we give substantial deference, will virtually doom an application for asylum. Musollari v. Mukasey, 545 F.3d 505, 508 (7th Cir.2008).
Chen now contends that the adverse credibility finding is unsupported because, in his view, the IJ overemphasized minor factual discrepancies, such as those concerning his son’s age and the number of officials who attacked him at his house. He notes that parents commonly misstate their children’s ages and adds that “airport statements” are unreliable.
But Chen fails to recognize that the BIA responded to this argument and rejected it. The BIA acknowledged that those two inconsistencies alone might not have sustained the adverse credibility finding, but concluded that the cumulative impact of other discrepancies in the record were sufficient to uphold it. As for Chen’s “airport statements,” we note that he actually made his comment about the number of officials during his credible-fear interview, which took place two weeks after he had been detained, and he gave no reason to doubt the reliability of the interview beyond he was “in a bad mood” and “could not focus.”
Chen also takes issue with the IJ’s insistence on corroborating evidence. But the IJ’s ruling — an alternative basis for his decision, we note — is not before us on review because the BIA issued a separate opinion that did not rely on the lack of corroboration. See Korniejew v. Ashcroft, 371 F.3d 377, 383 (7th Cir.2004).
Chen next — again without referring to the BIA’s decision — attacks the IJ for invoking Huang v. Gonzales, 453 F.3d 942 (7th Cir.2006), as authority for the sweeping proposition that abortion certificates issued by Chinese hospitals are evidence only of voluntary abortions. The line between a voluntary and a coerced abortion can be blurred, he argues, and here he has also submitted a letter from his wife describing how the abortion was forced.
Again, however, any shortcomings in the IJ’s decision are irrelevant because the BIA in its separate opinion addressed the abortion certificate anew. It noted the State Department’s 2006 profile of China stating that abortion certificates are not issued for involuntary abortions and pointed out that Chen did not contradict those reports. When there is no contradictory evidence in the record, we have upheld reliance on similar government reports. See Xiao v. Mukasey, 547 F.3d 712, 717-18 (7th Cir.2008); Huang, 453 F.3d at 947. Additionally, Chen’s reference to his wife’s letter is unavailing; the BIA gave that letter little weight, questioning — as had the IJ — whether it was actually from his wife. Chen might disagree with the weight the BIA assigned to the letter, but we are far from convinced that the record compels a contrary result.
Last, Chen argues that the IJ ignored the abuse he personally experienced when the family-planning officials slapped him, threatened sterilization, and handcuffed him, and he contends that this experience qualifies as past persecution and also supports a fear of future persecution. But the IJ dismissed Chen’s testimony as incredible, and Chen has pointed to no other *173evidence in the record for us to disturb this conclusion.
Accordingly, the petition is DENIED.
. Puzzlingly, Chen devotes the bulk of his brief to challenging the decision of the IJ, not the BIA's — even though the Board issued a separate order that was detailed and reasoned.
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ORDER
Toya Olds was part of a ring that starting in the mid-1990s sold millions of dollars worth of cocaine in Milwaukee, Wisconsin. She pleaded guilty to conspiracy to distribute cocaine, 21 U.S.C. §§ 846, 841(a)(1), and was sentenced, as a career offender, to 188 months’ imprisonment. Olds did not contest her career-offender designation at sentencing or in her appellate brief, but at oral argument we raised the possibility that the application of the guideline was erroneous because it was based, in part, on a conviction for “second-degree recklessly endangering safety.” See Wis. Stat. § 941.30(2). As we recently held, this offense is not a crime of violence. United States v. Bishop, 341 Fed.Appx. *174239, 240 (7th Cir.2009); see also United States v. Woods, 576 F.3d 400 (7th Cir.2009); United States v. Smith, 544 F.3d 781, 786 (7th Cir.2008). And although we ordinarily we do not evaluate issues not presented by the parties themselves, the error here is plain, United States v. High, 576 F.3d 429, 430-31 (7th Cir.2009), and we are always free to correct a plain error on our own authority, Fed. R. Crim. P. 52(b); United States v. Atkinson, 297 U.S. 157, 160, 56 S.Ct. 391, 80 L.Ed. 555 (1934); United States v. Neal, 512 F.3d 427, 439 n. 11 (7th Cir.2008); United States v. Muriel, 418 F.3d 720, 723 n. 1 (7th Cir.2005).
Olds’s sentence is VACATED, and the case is REMANDED for resentencing.
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ORDER
In 2001, Raymond F. Pitts pled guilty to one count of conspiracy to possess with intent to distribute controlled substances, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B) and 846. At that time, the district court sentenced him to 324 months’ imprisonment and a term of supervised release. At least part of his sentence was based on the United States Sentencing Guidelines provisions governing offenses involving crack cocaine. We affirmed Pitts’ conviction on direct appeal. United States v. Pitts, 322 F.3d 449 (7th Cir.2003).
In 2008, Pitts filed a motion to reduce his sentence pursuant to 18 U.S.C. § 3582(c)(2), which allows a court to modify a term of imprisonment when the original sentence was based on a range that has subsequently been lowered by the Sentencing Commission. Retroactive Amendments 706 and 711 reduced the offense levels for crack cocaine-related crimes, and Pitts sought a reduction of his sentence under those Amendments. Pitts’ original guidelines sentencing range was 324 to 405 months, and .the district court originally sentenced Pitts to the low end of that range. Under the Amendments, Pitts’ new sentencing range was 292 to 365 months, and the court again sentenced him to the low end of the range. Pitts asked the district court to further reduce his sentence and to conduct a full resentencing hearing under United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). The district court declined to conduct a full resentencing or to reduce Pitts’ new sentence below 292 months, citing our opinion in United States v. Cunningham, 554 F.3d 703 (7th Cir.2009), cert. denied, - U.S. -, 129 S.Ct. 2826, 174 L.Ed.2d 552 (2009). Pitts appeals the district court’s decision, although he acknowledges that his claim is foreclosed by Cunningham. He asks that we reconsider our holding in Cunningham in light of the Ninth Circuit’s contrary opinion in United States v. Hicks, 472 F.3d 1167 (9th Cir.2007). In the alternative, he seeks to preserve the issue for Supreme Court review.
In Cunningham, we held that district courts, when reducing a defendant’s sentence pursuant to 18 U.S.C. § 3582(c)(2), lack the authority to reduce the sentence beyond the retroactive guidelines amendment range. 554 F.3d at 709. We also noted that Section 3582(c)(2) proceedings are not full resentencings and may not result in a sentence lower than the amended guidelines range unless the original sentence was lower than the then-applicable guidelines range. 554 F.3d at 708. We were aware of Hicks when we issued our opinion in Cunningham. Indeed, a good part of our opinion in Cunningham explains exactly why we have rejected the Ninth’s Circuit’s reasoning in Hicks. See Cunningham, 554 F.3d at 705-09. We see no reason to reconsider Cunningham now. The district court’s judgment is therefore AFFIRMED.
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ORDER
Jeanie Pelnarsh sued her former employer, R.R. Donnelley & Sons, under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17, alleging that several supervisors and coworkers subjected her to a sexually hostile work environment and that Donnelley retaliated against her for complaining about it. The district court granted summary judgment for Don-nelley on the grounds that Pelnarsh did not have sufficient evidence to establish a retaliation claim, and that she did not timely file an administrative charge of discrimination as to her sexual-harassment claim. Pelnarsh appeals only the dismissal of the sexual-harassment claim. We affirm the judgment.
We construe the following facts in the light most favorable to Pelnarsh. See Winsley v. Cook County, 563 F.3d 598, 602 (7th Cir.2009). Pelnarsh began working at Donnelley’s facility in Pontiac, Illinois, in 1999 and remained with the company until she was fired in January 2006. On October 1, 2005, Pelnarsh transferred to Don-nelley’s facility in Mendota, Illinois. Pel-narsh contends that, during her tenure with the company, male supervisors and coworkers subjected her to constant sexual harassment including physical touching, propositions for sex, and lewd comments about her appearance. After she transferred to Mendota, however, the only unwelcome conduct Pelnarsh endured was a series of haranguing phone calls from Joe Carlberg, her former supervisor in Pontiac. In the calls Carlberg insisted that she continue to work remotely on assignments for him and threatened to make her life miserable if she refused.
When Pelnarsh was terminated in January 2006, Donnelley gave “gross misconduct” as the reason. The company discovered that Pelnarsh had used a company credit card to pay for thousands of dollars of personal expenses. Pelnarsh pleaded guilty to theft in state court and served a 90-day sentence for making these unauthorized purchases. On September 21, 2006, she filed a charge of discrimination with the Equal Employment Opportunity Commission and the Illinois Department of Human Rights; the EEOC issued a right-to-sue letter after the case had been pending for more than 180 days.
Pelnarsh then filed a complaint in district court, and Donnelley moved for summary judgment, asserting as a defense that Pelnarsh had filed her charge of discrimination with the EEOC too late. Pel-narsh opposed the motion, and gave two reasons why she believed that her administrative charge was timely. First, she asserted that she submitted other administrative charges to the EEOC between December 2005 and August 2006, which were well within 300 days of the alleged discriminatory conduct. But Pelnarsh did not offer any evidence that there had been previous charges of discrimination, and the district court concluded that the undisputed evidence established that her only administrative charge was filed with the EEOC on September 21, 2006. Pel-narsh does not contest this conclusion on appeal.
Second, Pelnarsh asserted in response to Donnelley’s motion for summary judgment that Carlberg’s calls constituted sexual harassment, and that she filed her administrative charge within 300 days of *180those calls. To support this assertion, Pel-narsh pointed to her deposition testimony where she verified the accuracy of a letter she had written to the administrative investigator. In the letter Pelnarsh explained: “I didn’t endure any sexual harassment while I was at the Mendota plant. The only harassment that transpired was by Joe Carlberg who constantly called every day.” Pelnarsh described the content of these calls in an unsworn statement accompanying her opposition to summary judgment. The district court refused to credit this statement and noted that her deposition testimony contradicted her position that the sexual harassment continued after she transferred to Mendo-ta.
On appeal Pelnarsh argues that she identified a material question of fact as to when the alleged sexual harassment ceased, and that the district court erred by refusing to allow a jury to decide if her case was timely. We review a grant of summary judgment de novo. Adelman-Reyes v. Saint Xavier Univ., 500 F.3d 662, 665 (7th Cir.2007).
Administrative exhaustion is a prerequisite to filing a lawsuit under Title VII, but the requirement is not jurisdictional. See Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982); Volovsek v. Wis. Dep’t of Agric., Trade, & Consumer Prot., 344 F.3d 680, 687 (7th Cir.2003). Instead, lack of exhaustion, which is Donnelley^ theory in this case, is an affirmative defense on which the company bears the burden of proof. See Salas v. Wis. Dep’t of Corr., 493 F.3d 913, 922 (7th Cir.2007). Thus, summary judgment was appropriate only if Donnelley established through undisputed evidence that Pelnarsh failed to timely file her charge of discrimination with the EEOC. See Laouini v. CLM Freight Lines, Inc., 586 F.3d 473, 475-76 (7th Cir.2009).
Illinois is a deferral state, so Pelnarsh was required to file a charge of discrimination with the EEOC within 300 days of some offending conduct. See 42 U.S.C. § 2000e-5(e)(l); Filipovic v. K & R Express Sys., Inc., 176 F.3d 390, 396 (7th Cir.1999). Since Pelnarsh complains of a hostile work environment, the 300-day period is measured from the date of the last hostile act even if that act would not, standing alone, give rise to a claim of sexual harassment. See Nat’l R.R. Passenger Corp., v. Morgan, 536 U.S. 101, 115-18, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002); Pruitt v. City of Chicago, 472 F.3d 925, 927 (7th Cir.2006). Thus, Pelnarsh’s claim must be based on conduct occurring on or after November 26, 2005. If there is no evidence of hostile conduct after that date, Pelnarsh’s claim was untimely. See Lucas v. Chi. Transit Auth., 367 F.3d 714, 724 (7th Cir.2004). The hostile conduct that Pelnarsh allegedly endured occurred in the Pontiac facility, before her transfer to Mendota on October 1, 2005. To overcome this problem of timing, Pelnarsh insists that the calls she received from Carl-berg after her transfer were hostile acts. Her contention rests on three premises. First, she argues, the calls were constant and their frequency alone constitutes sexual harassment regardless of content. Second, she continues, her former supervisor’s work-related demands were inappropriate because she no longer worked for him. And finally, says Pelnarsh, the calls were hostile because Carlberg threatened to “make her life hell” if she did not continue to work for him.
These calls, as Pelnarsh describes them, do not evince sexual harassment and cannot salvage her claim from being dismissed as untimely. The district court recognized that Pelnarsh did not submit admissible *181evidence concerning the content of these calls, but even if we credit the description in the unsworn statement she submitted at summary judgment, the only reasonable conclusion is that the calls were work related; as Pelnarsh herself explained both in her unsworn statement and her deposition testimony, Carlberg constantly called and made work-related demands on her time. There is no evidence to suggest that these calls were motivated by Pelnarsh’s gender, so they do not serve to further her sexual-harassment claim. See Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 79-81, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998). Moreover, even a threat to “make her life hell,” if made to persuade her to continue doing Carlberg’s work and not because of her gender, cannot be considered sexual harassment since inappropriate conduct inflicted in a gender-neutral fashion is outside the scope of Title VII. See Berry v. Delta Airlines, 260 F.3d 803, 808 (7th Cir.2001). And to the extent that Pelnarsh thinks that any frequent and unwanted calls can constitute harassment under Title VII no matter the content of the calls, her position is frivolous and falls far short of her burden of demonstrating that her workplace was both objectively and subjectively hostile. See Ezell v. Potter, 400 F.3d 1041, 1047 (7th Cir.2005).
Finally, Pelnarsh suggests on appeal that even if her administrative charge was untimely, she should be permitted to go forward with her lawsuit based on the doctrines of equitable tolling and estoppel. But because she failed to raise these doctrines in the district court, they are waived. See Laouini, 586 F.3d at 479; Grayson v. City of Chicago, 317 F.3d 745, 751 (7th Cir.2003). On this record, moreover, neither doctrine is relevant. Estop-pel is primarily intended to redress situations where the employer conceals the very fact of discrimination or otherwise tries to prevent the employee from bringing a lawsuit. See Lucas, 367 F.3d at 723. Equitable tolling would require Pelnarsh to demonstrate that circumstances outside of her control prevented her from timely filing with the EEOC and that she diligently pursued her claims despite those conditions. See Beamon v. Marshall & Ilsley Trust Co., 411 F.3d 854, 860-61 (7th Cir.2005). Pelnarsh could not successfully invoke these doctrines because she knew she was being harassed as early as 1999, and she has not identified any circumstance that prevented timely filing.
AFFIRMED.
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ORDER
John Kowal committed six bank robberies in the Madison, Wisconsin, area between March and September 2008. He pleaded guilty to one count of bank robbery, see 18 U.S.C. § 2113(a), and admitted his involvement in the other five. The district court considered all six robberies when calculating Kowal’s sentencing range, see U.S.S.G. § lB1.2(c), and sentenced him to 78 months’ imprisonment.
Kowal filed a notice of appeal, but his appointed lawyer moves to withdraw under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), because she cannot identify any nonfrivolous ground for appeal. Kowal did not respond to counsel’s submission. See Cir. R. 51(b). Our review is limited to the potential issues identified in counsel’s facially adequate brief. United States v. Cano-Rodriguez, 552 F.3d 637, 638 (7th Cir.2009); United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir.2002). We grant counsel’s motion and dismiss the appeal.
In her Anders submission counsel tells us that Kowal does not want his guilty plea set aside, and thus counsel properly refrains from discussing the adequacy of the plea colloquy or the voluntariness of the plea. See United States v. Knox, 287 F.3d 667, 671-72 (7th Cir.2002). Additionally, at sentencing Kowal did not object to the district court’s application of the sentencing guidelines, and counsel has not suggested any possible basis for disagreeing with the court’s calculations. Instead, the only potential issue identified by counsel is whether Kowal could challenge the reasonableness of his prison sentence.
Kowal had argued for a term below the guidelines range because he is a first-time offender with strong family support and, by his account, no substance-abuse problem. The district court considered these *183factors but concluded that a sentence at the high’ end of the imprisonment range would be appropriate for two principal reasons. First, the court concluded that Kowal represents a significant danger to the community given the number of robberies, and since the guidelines permitted the allocation of just five additional offense levels to account for the entire course of conduct, see U.S.S.G. § 3D1.4; United States v. Maro, 272 F.3d 817, 824 (7th Cir.2001), a term at the high end of the range was warranted. Second, the court found Kowal’s contention that he had no drug or alcohol problem not credible in light of unchallenged, contrary information in the presentence report.
We afford sentences within the guidelines range a presumption of reasonableness. Rita v. United States, 551 U.S. 338, 347, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007); United States v. Sawyer, 558 F.3d 705, 714-15 (7th Cir.2009). In this case, the district court gave meaningful consideration to the factors enumerated in 18 U.S.C. § 3553(a) and concluded that a sentence at the high end of the range was appropriate. Thus, counsel correctly concludes that any argument challenging the reasonableness of Kowal’s prison sentence would be frivolous.
Accordingly, counsel’s motion to withdraw is GRANTED, and the appeal is DISMISSED.
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ORDER
Timothy Hums pleaded guilty to possessing crack cocaine with intent to distribute. See 21 U.S.C. § 841(a)(1). The district court initially sentenced him as a career offender to 300 months in prison. See U.S.S.G. § 4B1.1. On direct appeal, see United States v. Hurns, 295 Fed.Appx. 820 (7th Cir.2008), we vacated that sentence after concluding that a conviction for escape, which served as one of the qualifying predicates for the career-offender designation, was not a “crime of violence” as recently defined by the Supreme Court in Begay v. United States, 553 U.S. 137, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008).
On remand the district court calculated a total offense level of 33 and criminal history category of V, yielding a guidelines imprisonment range of 210 to 262 months. Hums requested a sentence of 12 years; he argued that a criminal-history category of V overstated the severity of his criminal record, that he had no contact with his father while growing up in a crime-infested neighborhood, and that he had taken every opportunity to better himself in prison since the first sentencing. The court imposed a sentence of 150 months’ imprisonment.
Hums filed a notice of appeal, but his appointed lawyer has concluded that the appeal is frivolous and moves to withdraw under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Hums did not respond to counsel’s motion. See Cir. R. 51(b). We confine our review to the potential issues identified in counsel’s facially adequate brief. See United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir.2002).
After noting that our review would be limited to sentencing issues arising from the remand, see United States v. Swanson, 483 F.3d 509, 515 (7th Cir.2007); United States v. Parker, 101 F.3d 527, 528 (7th Cir.1996), counsel identifies two potential issues. The first is the calculation of the guidelines imprisonment range. But as to that question, counsel concedes that Hums never objected to the district court’s calculation, and, moreover, counsel does not suggest any basis for arguing that the offense level or the criminal-history score is incorrect. Thus, a challenge to the imprisonment range would be frivolous.
The second potential issue is the reasonableness of Hurns’s prison sentence. That sentence is significantly below the guidelines range and is presumptively reasonable. See United States v. Liddell, 543 F.3d 877, 885 (7th Cir.2008); United States v. Filipiak, 466 F.3d 582, 583 (7th Cir.2006). And, as counsel points out, the district court took into account Hurns’s arguments for leniency and weighed the sentencing factors in 18 U.S.C. § 3553(a), as required. See, e.g., United States v. Mendoza, 576 F.3d 711, 721 (7th Cir.2009). *185The court told Hums, in assessing his criminal history, that there was much about his “record that doesn’t look too good.” But in Hurns’s favor, the court took note of his difficult childhood and his determination to use his time in prison productively. The district court needed only to give an adequate statement of reasons, consistent with § 3553(a), for its choice of sentence. See United States v. Smith, 562 F.3d 866, 873 (7th Cir.2009). The court did so, and it would thus be frivolous for Hums to argue that his prison sentence is unreasonable.
Accordingly, we GRANT counsel’s motion to withdraw and DISMISS the appeal.
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PER CURIAM.
Jeremiah J. Kerby appeals the district court’s1 denial of his 28 U.S.C. § 2255 motion. Having carefully reviewed the matter, we conclude Kerby’s § 2255 motion is untimely and equitable tolling is not warranted. Thus, we summarily affirm. See 8th Cir. R. 47B.
. The Honorable Donald E. O’Brien, Uniled States District Judge for the Northern District of Iowa.
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PER CURIAM.
In 2003, Raymond Smith received a sentence of 400 months after he was found guilty of conspiracy to distribute and possession with intent to distribute approximately 1,912 grams of cocaine base (commonly known as “crack”). Smith brought a motion under 18 U.S.C. § 3582(c) for a reduction in his sentence pursuant to a guidelines amendment (Amendment 706) which reduced the advisory base offense level for crack offenses by two levels. He also asked the district court1 to appoint counsel and conduct a full resentencing in order to weigh all the factors set forth in 18 U.S.C. § 3553(a) in support of a greater sentence reduction. The district court calculated an amended advisory guidelines range of 324-405 months, but declined to modify Smith’s sentence, citing the scope and duration of Smith’s criminal activities.
Smith appeals, arguing the district court had authority to conduct a full resen-tencing and erred by not doing so. He acknowledges his argument is foreclosed by United States v. Starks, 551 F.3d 839, 843 (8th Cir.2009) (concluding district courts do not have authority, in resentenc-ing proceedings resulting from the crack cocaine amendments, to conduct full resen-tencings or grant reductions beyond the two-level decrease authorized by the Sentencing Commission), but brings this appeal in order to preserve the issue for further review.
Smith further argues the district court abused its discretion in failing to modify Smith’s sentence.2 The district court’s decision not to reduce a sentence under 18 U.S.C. § 3582(c) is reviewed for abuse of discretion. United States v. Wyatt, 115 F.3d 606, 609 (8th Cir.1997). Smith concedes his 400-month sentence falls within the recalculated guidelines range, but nonetheless argues the court abused its discretion. We disagree. The district court, in its order, based its decision on trial testimony showing Smith was spotted by police in his yard with a brick of cocaine and a pistol. Smith was arrested shortly thereafter in his residence, and the police seized a loaded gun, scales, cash, a bullet proof vest, and surveillance cameras. The district court also considered Smith’s prior conviction for unlawful sexual intercourse with a minor. Having reviewed the record, we conclude the district court did not abuse its discretion in declining to modify Smith’s sentence.
We affirm the judgment of the district court.
. The Honorable James M. Rosenbaum, United States District Judge for the District of Minnesota.
. Smith also contends that the district court should have reduced his sentence to a level below the low end of the guidelines range. This argument is foreclosed by Starks, 551 F.3d at 840.
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MEMORANDUM **
California state prisoner Dale Stephen Rodabaugh appeals from the district court’s judgment denying his 28 U.S.C. § 2254 habeas petition. We have jurisdiction pursuant to 28 U.S.C. § 2253, and we affirm.
Rodabaugh contends that the trial court violated his due process rights by admitting identification evidence that he claims was obtained through impermissibly *205suggestive pretrial identification procedures. The state court’s decision rejecting this claim was not contrary to, or an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States. See 28 U.S.C. § 2254(d)(1); see also Neil v. Biggers, 409 U.S. 188, 196-200, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972); Simmons v. United States, 390 U.S. 377, 384-86, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968).
Rodabaugh also contends that trial counsel was ineffective by failing to pursue a ruling on a motion to suppress the identification evidence, and by failing to file a second suppression motion. The state court’s decision rejecting this claim was not contrary to, or an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States. See 28 U.S.C. § 2254(d)(1); see also Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Kimmelman v. Morrison, 477 U.S. 365, 375, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986).
To the extent that Rodabaugh raises uncertified claims, we construe such argument as a motion to expand the certificate of appealability, and we deny the motion. See 9th Cir. R. 22-1 (e); see also Hiivala v. Wood, 195 F.3d 1098, 1104-05 (9th Cir.1999) (per curiam).
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3.
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MEMORANDUM **
Plaintiffs David Lee and Daniel Lloyd (collectively, “Plaintiffs”)1 brought separate putative class actions against three major credit card issuers, commonly referred to as American Express, Capital One and Chase (collectively, “Defendants”). Plaintiffs alleged violations of California’s Consumer Legal Remedies Act (“CLRA”), violations of California’s Unfair Competition Law (“UCL”), and state law fraud in the inducement for the inclusion of allegedly unconscionable arbitration and other provisions in their credit card agreements. The district courts dismissed each case for lack of standing. We affirm.2
Standing for Article III purposes generally requires a showing of three elements: *207(1) injury in fact, (2) a causal connection between the injury and the challenged action, and (3) the likelihood that the injury will be redressed by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). The “injury in fact” must be “concrete and particularized” and “actual or imminent, not conjectural or hypothetical.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000).
Plaintiffs cannot satisfy the requirements of Article III because they have not yet been injured by the mere inclusion of these provisions in their agreements, nor is the threat of future harm from such provisions sufficiently imminent to confer standing. See Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1019-20, 104 S.Ct. 2862, 81 L.Ed.2d 815 (1984) (challenge to constitutionality of arbitration scheme not ripe for resolution because Monsanto “did not allege or establish that it had been injured by actual arbitration under the statute”); Bowen v. First Family Fin. Servs., Inc., 233 F.3d 1331, 1340-41 (11th Cir.2000) (“There is at most a ‘perhaps’ or ‘maybe’ chance that the arbitration agreement will be enforced against these plaintiffs in the future, and that is not enough to give them standing to challenge its enforceability.”).
Plaintiffs claim that they want to arbitrate but cannot (for a variety of reasons) and assert that they thus have suffered the loss of the benefit of their bargain. As the district courts recognized, this argument requires a series of assumptions about what might happen if plaintiffs actually did initiate arbitration, and such speculation is too conjectural and hypothetical to support current Article III standing. See Laidlaw, 528 U.S. at 180-81, 120 S.Ct. 693; Bowen, 233 F.3d at 1340.
Plaintiffs also argue that the federal courts — rather than an arbitrator — must rule on certain threshold issues of arbitration clause enforceability under Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440, 126 S.Ct. 1204, 163 L.Ed.2d 1038 (2006), Nagrampa v. MailCoups, Inc., 469 F.3d 1257 (9th Cir.2006) (en banc), or the terms of the individual credit card contracts.3 But this argument is misplaced, because neither these cases nor the credit card agreements create current standing in federal court in the absence of a case or controversy; at most they indicate which decision maker will decide these issues if there is an actual dispute at some point in time. That the federal courts may eventually be called upon to decide the question does not mean we must anticipatorily do so now. Nor do California statutory rights supply the necessary standing. In Meyer v. Sprint Spectrum L.P., 45 Cal.4th 634, 638, 88 Cal.Rptr.3d 859, 200 P.3d 295 (2009), the California Supreme Court addressed a plaintiff’s attempt to challenge Sprint’s arbitration provision under the CLRA, even though there was no underlying dispute between the plaintiff and Sprint that necessitated resort to arbitration or other remedial provisions in the contract. The court concluded that the mere presence of an unconscionable term in a consumer contract was not a sufficient form of damage within the meaning of the CLRA, and that the CLRA therefore did not give standing to permit such preemptive suits. Id. at 641-43 & n. 3, 88 Cal.Rptr.3d 859, 200 P.3d 295.
Similarly, we recently held that pursuant to approval of Proposition 64 by Cali*208fornia voters, a plaintiff lacks standing under the UCL to seek injunctive or declaratory relief unless he has suffered injury in fact and a loss of money or property. Walker v. Geico Gen. Ins. Co., 558 F.3d 1025, 1027 (9th Cir.2009); see also Walker v. USAA Gas. Ins. Co., 474 F.Supp.2d 1168, 1171-72 (E.D.Cal.2007). We are unpersuaded by Plaintiffs’ argument that they have “lost” money because they paid a fee for the cards, as no event has yet occurred to deprive them of the benefit of their bargain. The underlying California statutes therefore do not create standing in the absence of a tangible loss.
AFFIRMED. Accordingly, all pending motions are denied as moot.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
. Lee is a plaintiff in all three cases; Lloyd is not a party to the Capital One suit (OS-15858).
. These cases were consolidated for oral argument and shall remain consolidated for the purpose of this disposition.
. This is a curious argument, of course, because if these claims are not arbitrable, it is difficult to see how the Plaintiffs could have suffered an Article III injury by being denied the ability to arbitrate.
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MEMORANDUM **
California state prisoner Jose G. Zavala appeals pro se from the district court’s judgment dismissing his 42 U.S.C. § 1983 action with prejudice for failure to state a claim. We have jurisdiction under 28 U.S.C. § 1291. We review de novo. Douglas v. Noelle, 567 F.3d 1103, 1106 (9th Cir.2009). We affirm.
The district court properly dismissed Zavala’s assertion of claims under 18 U.S.C. § 242 because it is a criminal statute that does not give rise to civil *213liability. See Allen v. Gold Country Casino, 464 F.3d 1044, 1048 (9th Cir.2006).
The district court properly dismissed Zavala’s claims under 42 U.S.C. § 1983 because the allegations failed to rise to the level of constitutional deprivations. See Hudson v. McMillian, 503 U.S. 1, 5, 7, 9-10, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992) (holding that the “unnecessary and wanton infliction of pain ” violates the Eighth Amendment, that the “absence of serious injury is ... relevant to the Eighth Amendment inquiry[,]” and that the Eighth Amendment only recognizes the use of physical force above a certain threshold) (emphasis added); see also Freeman v. Arpaio, 125 F.3d 732, 738 (9th Cir.1997), abrogated on other grounds by Shakur v. Schriro, 514 F.3d 878 (9th Cir.2008) (“As for being subjected to abusive language directed at [one’s] religious and ethnic background, verbal harassment or abuse ... is not sufficient to state a constitutional deprivation under 42 U.S.C. § 1983.”) (internal quotation marks omitted).
Dismissal with prejudice was proper because Zavala was given two prior opportunities to amend his complaint in order to correct the deficiencies identified by the district court but failed to do so. See Cato v. United States, 70 F.3d 1103, 1106 (9th Cir.1995) (“A pro se litigant must be given leave to amend his or her complaint, and some notice of its deficiencies, unless it is absolutely clear that the deficiencies of the complaint could not be cured by amendment.”).
The district court did not abuse its discretion when it did not remand Zavala’s case to state court after dismissing the federal claims because the operative complaint alleged no state claims. See United Nat’l Ins. Co. v. R & D Latex Corp., 242 F.3d 1102, 1112 (9th Cir.2001) (reviewing for abuse of discretion the district court’s decision whether to remand a removed case back to state court).
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
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MEMORANDUM ***
James Lee Crummel (“Crummel”) was convicted in a California state court of two counts of oral copulation on a person unable to resist due to intoxication. He challenged his state conviction in a federal habeas corpus petition filed in the United States District Court for the Central District of California. The district court denied the petition and Crummel filed a timely appeal. We have jurisdiction pursuant to 28 U.S.C. §§ 1291, 2253, and we affirm.1
Crummel’s challenge to his state court conviction is subject to the Antiterrorism and Effective Death Penalty Act of 1996, which requires that in order to be granted relief, Crummel must show either that the state court’s decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” or “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d); Williams v. Taylor, 529 U.S. 362, 386, 403-05, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). Our analysis is limited to the law as it was clearly established by Supreme Court precedent “at the time of the state court’s decision.” Wiggins v. Smith, 539 U.S. 510, 520, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003).
Crummel claims that the prosecution violated his constitutional rights under the Ex Post Facto Clause of the United States Constitution. In 1998, Crummel was convicted in San Bernardino County Superior Court for sexual assaults committed in 1988. The statute of limitations in effect at the time of Crummel’s 1988 conduct had already expired when charges were initially brought in 1995; but the prosecution relied on a new statute of limitations, passed in 1994, which allowed prosecution of sexual assaults on minors within one year of the minor reporting the crime to police. See California Penal Code § 803(g). The California Court of Appeal upheld the conviction, and the California Supreme Court denied Crummel’s petition for review in April of 2000.
Crummel relies heavily on the United States Supreme Court’s decision in Stogner v. California, 539 U.S. 607, 123 S.Ct. 2446, 156 L.Ed.2d 544 (2003), which held that under the Ex Post Facto Clause, the government cannot revive expired criminal prosecution limitations periods by retroactively extending the statute of limitations. Id. at 632-33, 123 S.Ct. 2446. Crummel argues that although Stogner was decided years after the California courts’ rulings, the case merely reaffirmed what was already clearly established federal law before the Supreme Court rendered its opinion in Stogner.
The majority in Stogner determined, over a four-judge dissent, that reviving the expired criminal limitations period in that case was unconstitutional, but explicitly stated that the Court “ha[d] not previously spoken decisively on this matter.” Id. at 620, 123 S.Ct. 2446. The majority addressed conflicting precedents and con-*221eluded that none of the prior cases controlled the outcome in Stogner. Id. at 620-21, 123 S.Ct. 2446. Thus, even the Stogner majority acknowledged that there was no clearly established Supreme Court rule that controlled the issue.
Crummel also relies heavily on the Stog-ner majority’s argument that lower courts and commentators have nearly unanimously agreed that the Ex Post Facto Clause forbids reviving time-barred prosecutions. Id. at 630, 123 S.Ct. 2446. However, AEDPA explicitly limits habeas relief to state court rulings that are contrary to rulings of the United States Supreme Court. Williams, 529 U.S. at 403-04, 120 S.Ct. 1495. The dissent in Stogner also cited several commentators whose opinions are in line with the dissent’s view that reviving expired statutes of limitations does not violate the Ex Post Facto Clause. Stogner, 539 U.S. at 639-40, 123 S.Ct. 2446 (Kennedy, J., dissenting). The opinions of lower courts and commentators do not persuade us that the rule announced in Stog-ner was already clearly established by Supreme Court precedent.
As the Stogner majority candidly admitted, no prior Supreme Court precedents clearly established a rule against reviving expired criminal prosecutions; and the dissent’s analysis shows that a different conclusion was plausible based on prior precedent and the history of the Ex Post Facto Clause. Thus, all nine justices in Stogner, both those in the majority and those in the dissent, agreed that no prior Supreme Court precedent clearly barred revival of expired statutes of limitations. We agree. We hold that at the time the California courts affirmed Crummel’s conviction, their rulings were neither “contrary to, [n]or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1).2
Putting aside the state’s alternative argument, which we do not reach, our resolution of this appeal in accord with the state’s primary argument may seem at tension with Stogner and the principle endorsed in that case by the Supreme Court, though after the California courts ruled in Crummel’s case. However, it is a result that is dictated by the language and in-tendment of AEDPA, as it has been interpreted by the United States Supreme Court.
The district court’s dismissal of Crum-mel’s habeas petition was correct under the law.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
. Because die parties are familiar with the facts and procedural history, we do not restate them here except as necessary to explain our disposition.
. Because we hold that Crummel's California conviction must be upheld even if it would be considered unconstitutional after Stogner, we need not reach the state's alternative argument that the California statute of limitations, section 803(g), was a constitutionally permissible “extension” rather than a “revival” of the limitations period.
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MEMORANDUM **
Western Titanium and its Pi'esident, Daniel Schroeder, have filed both an interlocutory appeal and a petition for writ of mandamus or prohibition challenging an order entered by the district court on Apxúl 14, 2009. The distx'ict court’s order required Western Titanium and Schroeder to submit a more detailed privilege log in suppox't of their request, under Federal Rule of Criminal Procedui'e 41(g), that the government return documents seized from Western Titanium’s offices following execution of a April 14, 2008 search warrant. Because we lack jurisdiction over the interlocutory appeal and because we find no clear ex-ror on the part of the district court to justify issuance of a writ of mandamus, we dismiss the appeal and deny the mandamus petition.
Under the so-called “final judgment” rule, appellate jurisdiction is not normally vested xxntil a ei'iminal defendant has been convicted and sentenced. See Berman v. United States, 302 U.S. 211, 212-213, 58 S.Ct. 164, 166, 82 L.Ed. 204 (1937). Here, because trial has not yet occurred, Western Titanium and Schroeder can appeal from the district court’s April 15, 2009, interlocutory decision only if that decision 1) conclusively detexmines the disputed questions; 2) resolves an important issue completely separate from the merits of the action; and 3) is effectively unreviewable on appeal from a final judgment. Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 98 S.Ct. 2454, 2458, 57 L.Ed.2d 351 (1978).
Appellants’ intexiocutoxy appeal fails because there has been no conclusive determination by the district court triggering appellate jurisdiction under 28 U.S.C. § 1291. Appellants had the burden of establishing that protections against disclosure applied to the seized documents such that their return was warranted under Rule 41(g). See In re Grand Jury Investigation, 974 F.2d 1068, 1070 (9th Cir.1992) (attorney-client privilege); Conoco Inc. v. United States Dep’t. of Justice, 687 F.2d 724, 730 (3rd Cir.1982) (attorney work-product protection); see also Fed.R.Civ.P. 45(d)(2). After determining that the privilege log and ex paite declarations offered by Appellants still failed to meet that burden, the district court oi'dered that the piivilege log be supplemented to include additional infoimation needed to assess whether the claimed protections were meritorious. The distx'ict court also sought bi’iefing on a number of other issues surrounding the conflict before it.
The augmentation oi'dered by the district coui't comports with the require*226ments for a valid privilege log we articulated in In re Grand Jury Investigation, 974 F.2d at 1071 (citing Dole v. Milonas, 889 F.2d 885, 888 n. 3, 890 (9th Cir.1989)). Appellants never submitted a revised log in the wake of the district court’s April 15, 2009, order; and while they claim that compliance risked compromise of the right to avoid self-incrimination under the Fifth Amendment to the United States Constitution, the district court’s order expressly invited further briefing on whether its order impinged on any Fifth Amendment rights. The fact that Appellants failed to respond either with a revised privilege log, or additional briefing as to why it could not do so without running afoul of the protections afforded by the Fifth Amendment, precludes us from finding that the district court’s order amounted to a conclusive determination for purposes of an interlocutory appeal. Consequently we lack jurisdiction over the appeal.
Western Titanium fares no better in its alternative request for a writ of mandamus or prohibition under 28 U.S.C. § 1651(a). The extraordinary remedy represented by mandamus relief is justified only in “exceptional circumstances.” Will v. United States, 389 U.S. 90, 95, 88 S.Ct. 269, 273, 19 L.Ed.2d 305 (1967). Those exceptional circumstances require, inter alia, a finding that the district court’s order is “clearly erroneous as a matter of law.” Bauman v. United States Dist. Court, 557 F.2d 650, 654-55 (9th Cir.1977). As stated above, the demands placed by the district court on Western Titanium for invocation of the protections against disclosure were consistent with the requirements we approved in In re Grand Jury Investigation, supra. The district court also invited additional briefing on Fifth Amendment issues, and provided that compliance with its order would not amount to any general waiver of privilege as to items seized by the government. There was no clear error.
For all the foregoing reasons, the interlocutory appeal is DISMISSED and the mandamus petition is DENIED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.
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MEMORANDUM **
Kulwinder Singh, native and citizen of India, petitions for review of the Board of Immigration Appeals’ order dismissing his appeal from an immigration judge’s decision denying his application for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence factual findings, Pedro-Mateo v. INS, 224 F.3d 1147, 1150 (9th Cir.2000), and we deny the petition for review.
The agency denied Singh’s asylum application claim as time barred. Singh does not challenge this finding in his opening brief.
Substantial evidence supports the agency’s finding that changed country conditions in India rebut Singh’s presumption of a clear probability of persecution. See 8 C.F.R. § 208.16(b)(l)(i)(A); see Sowe v. Mukasey, 538 F.3d 1281, 1285-86, 1288 (9th Cir.2008). Accordingly, Singh’s withholding of removal claim fails.
Finally, substantial evidence supports the agency’s denial of CAT relief based on changed country conditions. See Sowe, 538 F.3d at 1288-89.
PETITION FOR REVIEW DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Susan Lew appeals from a judgment of the United States District Court for the Northern District of California granting summary judgment to the Superior Court of California. She alleges that she was terminated by the Superior Court on the basis of race and gender; in retaliation for requesting medical leave; and in retaliation for running for judicial office as an Asian Democrat. Lew has brought the following causes of action which must be addressed on appeal: (1) discrimination on the basis of race or gender in violation of Title VII (“Title VII”), 42 U.S.C. §§ 2000e et seq.; (2) discrimination on the basis of race or gender in violation of Fair Employment and Housing Act (“FEHA”), Cal. Gov’t Code §§ 12900-12996; (3) discrimination or retaliation in violation of the Family Medical Leave Act (“FMLA”), 29 U.S.C. §§ 2601-2654; (4) discrimination or retaliation in violation of the California Family Rights Act (“CFRA”), Cal. Gov’t Code § 12945.2(a); and (5) wrongful termi*229nation in violation of public policy pursuant to Cal. Gov’t Code § 3201.
We review a grant of summary judgment de novo. Buono v. Norton, 371 F.3d 543, 545 (9th Cir.2004) (citation and footnote omitted). Appellate review is governed by the same standards for summary judgment under Fed.R.Civ.P. 56 as are applied by the trial court. Qwest Commc’ns, Inc. v. City of Berkeley, 433 F.3d 1253, 1256 (9th Cir.2006). A party moving for summary judgment must demonstrate that there are no genuine issues of material fact to be tried and that it is therefore entitled to summary judgment as a matter of law. Fed.R.CivP. 56(c). On a motion for summary judgment, “the court must draw all reasonable inferences in favor of the nonmoving party, and it may not make credibility determinations or weigh the evidence.” Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). This Court may affirm the grant of summary judgment upon any ground supported by the record. Simo v. Union of Needletrades, 322 F.3d 602, 610 (9th Cir.2003).
Lew alleges discrimination on the basis of race and gender in violation of Title VII and FEHA. The same legal principles apply to claims under Title VII and FEHA; therefore, the claims will be treated together here. See Metoyer v. Chassman, 504 F.3d 919, 941 (9th Cir.2007). Title VII makes it “an unlawful employment practice for an employer ... to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(l); see also Cal. Gov’t Code § 12940(a). Lew has not set forth any evidence that the Superior Court judges and staff responsible for her termination made their decision on the basis of race or gender, rather than because she could not fulfill her responsibilities as a staff attorney for the court. Therefore, summary judgment was appropriately entered in favor of the Superior Court on Lew’s Title VII/FEHA claims.
Lew alleges that the Superior Court transferred her and then terminated her in violation of the FMLA and the CFRA. The CFRA adopts the same language as the FMLA, and California state courts have held that the same standards apply; therefore, this memorandum will treat both causes of action together. See Liu v. Amway Corp., 347 F.3d 1125, 1132 n. 4 (9th Cir.2003). “An employer may not transfer the employee to an alternative position in order to discourage the employee from taking leave or otherwise work a hardship on the employee.” 29 C.F.R. § 825.204(d). To prevail on a claim that FMLA leave was impermissibly considered in the decision to terminate, the employee must prove by a preponderance of the evidence that taking FMLA leave was a negative factor in the decision to terminate her, by using direct or circumstantial evidence, or both. See Liu, 347 F.3d at 1136; Bachelder v. Am. W. Airlines, Inc., 259 F.3d 1112, 1125 (9th Cir.2001). However, “[t]he FMLA does not entitle the employee to any rights, benefits, or positions they would not have been entitled to had they not taken leave.” Liu, 347 F.3d at 1132 (citing 29 U.S.C. § 2614(a)(3)(B)). In this case, there is insufficient evidence to create an issue of material fact that Lew was either transferred or terminated because she asked to take leave in order to take care of her ill husband to preclude summary judgment in favor of the Superior Court.
Lew alleges that the Superior Court terminated her in violation of public policy as set forth in Cal. Gov’t Code § 3201, which provides, in relevant part, *230that “no restriction shall be placed on the political activities of any officer or employee of a state or local agency.” Under California law, employment is at-will unless the parties contract otherwise. See Cal. Lab.Code § 2922. The tort of wrongful termination is an exception to at-will employment which lies when the termination was predicated on a motivation that violated public policy. See Stevenson v. Superior Court, 16 Cal.4th 880, 889, 66 Cal.Rptr.2d 888, 941 P.2d 1157 (Cal.1997).
The California Tort Claims Act (“CTCA”) governs all public entities and their employees and all noncontractual bases of compensable damage or injury that might be actionable between private persons. See Cal. Gov’t Code §§ 810.8, 811.2, 811.4, 814; see also Caldwell v. Montoya, 10 Cal.4th 972, 980, 42 Cal.Rptr.2d 842, 897 P.2d 1320 (Cal.1995). Under § 815 of the CTCA, “[ejxcept as otherwise provided by statute ... [a] public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person.” Cal. Gov’t Code § 815 (emphasis added). Wrongful termination is a common law tort claim, not one authorized by statute. See Palmer v. Regents of the Univ. of Cal., 107 Cal.App.4th 899, 909, 132 Cal.Rptr.2d 567 (Cal.Ct.App.2003).
Even assuming the Superior Court is not immune under the CTCA, Lew has not produced sufficient evidence to create a genuine issue of material fact that she was fired because Republican judges viewed her as a threat. Therefore, there is no genuine issue of material fact precluding entry of summary judgment in favor of the Superior Court on Lew’s claim for wrongful termination.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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PER CURIAM.
In 2003, Raymond Smith received a sentence of 400 months after he was found guilty of conspiracy to distribute and possession with intent to distribute approximately 1,912 grams of cocaine base (commonly known as “crack”). Smith brought a motion under 18 U.S.C. § 3582(c) for a reduction in his sentence pursuant to a guidelines amendment (Amendment 706) which reduced the advisory base offense level for crack offenses by two levels. He also asked the district court1 to appoint counsel and conduct a full resentencing in order to weigh all the factors set forth in 18 U.S.C. § 3553(a) in support of a greater sentence reduction. The district court calculated an amended advisory guidelines range of 324-405 months, but declined to modify Smith’s sentence, citing the scope and duration of Smith’s criminal activities.
Smith appeals, arguing the district court had authority to conduct a full resen-tencing and erred by not doing so. He acknowledges his argument is foreclosed by United States v. Starks, 551 F.3d 839, 843 (8th Cir.2009) (concluding district courts do not have authority, in resentenc-ing proceedings resulting from the crack cocaine amendments, to conduct full resen-tencings or grant reductions beyond the two-level decrease authorized by the Sentencing Commission), but brings this appeal in order to preserve the issue for further review.
Smith further argues the district court abused its discretion in failing to modify Smith’s sentence.2 The district court’s decision not to reduce a sentence under 18 U.S.C. § 3582(c) is reviewed for abuse of discretion. United States v. Wyatt, 115 F.3d 606, 609 (8th Cir.1997). Smith concedes his 400-month sentence falls within the recalculated guidelines range, but nonetheless argues the court abused its discretion. We disagree. The district court, in its order, based its decision on trial testimony showing Smith was spotted by police in his yard with a brick of cocaine and a pistol. Smith was arrested shortly thereafter in his residence, and the police seized a loaded gun, scales, cash, a bullet proof vest, and surveillance cameras. The district court also considered Smith’s prior conviction for unlawful sexual intercourse with a minor. Having reviewed the record, we conclude the district court did not abuse its discretion in declining to modify Smith’s sentence.
We affirm the judgment of the district court.
. The Honorable James M. Rosenbaum, United States District Judge for the District of Minnesota.
. Smith also contends that the district court should have reduced his sentence to a level below the low end of the guidelines range. This argument is foreclosed by Starks, 551 F.3d at 840.
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MEMORANDUM **
Plaintiffs David Lee and Daniel Lloyd (collectively, “Plaintiffs”)1 brought separate putative class actions against three major credit card issuers, commonly referred to as American Express, Capital One and Chase (collectively, “Defendants”). Plaintiffs alleged violations of California’s Consumer Legal Remedies Act (“CLRA”), violations of California’s Unfair Competition Law (“UCL”), and state law fraud in the inducement for the inclusion of allegedly unconscionable arbitration and other provisions in their credit card agreements. The district courts dismissed each case for lack of standing. We affirm.2
Standing for Article III purposes generally requires a showing of three elements: *207(1) injury in fact, (2) a causal connection between the injury and the challenged action, and (3) the likelihood that the injury will be redressed by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). The “injury in fact” must be “concrete and particularized” and “actual or imminent, not conjectural or hypothetical.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000).
Plaintiffs cannot satisfy the requirements of Article III because they have not yet been injured by the mere inclusion of these provisions in their agreements, nor is the threat of future harm from such provisions sufficiently imminent to confer standing. See Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1019-20, 104 S.Ct. 2862, 81 L.Ed.2d 815 (1984) (challenge to constitutionality of arbitration scheme not ripe for resolution because Monsanto “did not allege or establish that it had been injured by actual arbitration under the statute”); Bowen v. First Family Fin. Servs., Inc., 233 F.3d 1331, 1340-41 (11th Cir.2000) (“There is at most a ‘perhaps’ or ‘maybe’ chance that the arbitration agreement will be enforced against these plaintiffs in the future, and that is not enough to give them standing to challenge its enforceability.”).
Plaintiffs claim that they want to arbitrate but cannot (for a variety of reasons) and assert that they thus have suffered the loss of the benefit of their bargain. As the district courts recognized, this argument requires a series of assumptions about what might happen if plaintiffs actually did initiate arbitration, and such speculation is too conjectural and hypothetical to support current Article III standing. See Laidlaw, 528 U.S. at 180-81, 120 S.Ct. 693; Bowen, 233 F.3d at 1340.
Plaintiffs also argue that the federal courts — rather than an arbitrator — must rule on certain threshold issues of arbitration clause enforceability under Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440, 126 S.Ct. 1204, 163 L.Ed.2d 1038 (2006), Nagrampa v. MailCoups, Inc., 469 F.3d 1257 (9th Cir.2006) (en banc), or the terms of the individual credit card contracts.3 But this argument is misplaced, because neither these cases nor the credit card agreements create current standing in federal court in the absence of a case or controversy; at most they indicate which decision maker will decide these issues if there is an actual dispute at some point in time. That the federal courts may eventually be called upon to decide the question does not mean we must anticipatorily do so now. Nor do California statutory rights supply the necessary standing. In Meyer v. Sprint Spectrum L.P., 45 Cal.4th 634, 638, 88 Cal.Rptr.3d 859, 200 P.3d 295 (2009), the California Supreme Court addressed a plaintiff’s attempt to challenge Sprint’s arbitration provision under the CLRA, even though there was no underlying dispute between the plaintiff and Sprint that necessitated resort to arbitration or other remedial provisions in the contract. The court concluded that the mere presence of an unconscionable term in a consumer contract was not a sufficient form of damage within the meaning of the CLRA, and that the CLRA therefore did not give standing to permit such preemptive suits. Id. at 641-43 & n. 3, 88 Cal.Rptr.3d 859, 200 P.3d 295.
Similarly, we recently held that pursuant to approval of Proposition 64 by Cali*208fornia voters, a plaintiff lacks standing under the UCL to seek injunctive or declaratory relief unless he has suffered injury in fact and a loss of money or property. Walker v. Geico Gen. Ins. Co., 558 F.3d 1025, 1027 (9th Cir.2009); see also Walker v. USAA Gas. Ins. Co., 474 F.Supp.2d 1168, 1171-72 (E.D.Cal.2007). We are unpersuaded by Plaintiffs’ argument that they have “lost” money because they paid a fee for the cards, as no event has yet occurred to deprive them of the benefit of their bargain. The underlying California statutes therefore do not create standing in the absence of a tangible loss.
AFFIRMED. Accordingly, all pending motions are denied as moot.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
. Lee is a plaintiff in all three cases; Lloyd is not a party to the Capital One suit (OS-15858).
. These cases were consolidated for oral argument and shall remain consolidated for the purpose of this disposition.
. This is a curious argument, of course, because if these claims are not arbitrable, it is difficult to see how the Plaintiffs could have suffered an Article III injury by being denied the ability to arbitrate.
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MEMORANDUM **
California state prisoner Jose G. Zavala appeals pro se from the district court’s judgment dismissing his 42 U.S.C. § 1983 action with prejudice for failure to state a claim. We have jurisdiction under 28 U.S.C. § 1291. We review de novo. Douglas v. Noelle, 567 F.3d 1103, 1106 (9th Cir.2009). We affirm.
The district court properly dismissed Zavala’s assertion of claims under 18 U.S.C. § 242 because it is a criminal statute that does not give rise to civil *213liability. See Allen v. Gold Country Casino, 464 F.3d 1044, 1048 (9th Cir.2006).
The district court properly dismissed Zavala’s claims under 42 U.S.C. § 1983 because the allegations failed to rise to the level of constitutional deprivations. See Hudson v. McMillian, 503 U.S. 1, 5, 7, 9-10, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992) (holding that the “unnecessary and wanton infliction of pain ” violates the Eighth Amendment, that the “absence of serious injury is ... relevant to the Eighth Amendment inquiry[,]” and that the Eighth Amendment only recognizes the use of physical force above a certain threshold) (emphasis added); see also Freeman v. Arpaio, 125 F.3d 732, 738 (9th Cir.1997), abrogated on other grounds by Shakur v. Schriro, 514 F.3d 878 (9th Cir.2008) (“As for being subjected to abusive language directed at [one’s] religious and ethnic background, verbal harassment or abuse ... is not sufficient to state a constitutional deprivation under 42 U.S.C. § 1983.”) (internal quotation marks omitted).
Dismissal with prejudice was proper because Zavala was given two prior opportunities to amend his complaint in order to correct the deficiencies identified by the district court but failed to do so. See Cato v. United States, 70 F.3d 1103, 1106 (9th Cir.1995) (“A pro se litigant must be given leave to amend his or her complaint, and some notice of its deficiencies, unless it is absolutely clear that the deficiencies of the complaint could not be cured by amendment.”).
The district court did not abuse its discretion when it did not remand Zavala’s case to state court after dismissing the federal claims because the operative complaint alleged no state claims. See United Nat’l Ins. Co. v. R & D Latex Corp., 242 F.3d 1102, 1112 (9th Cir.2001) (reviewing for abuse of discretion the district court’s decision whether to remand a removed case back to state court).
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
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MEMORANDUM *
Defendant-Appellant Kim Lawson, Jr. appeals the district court’s summary adjudication orders, dated August 7, 2006, and November 30, 2006, and its Findings of Fact and Conclusions of Law and Judgment, dated March 21, 2007, 483 F.Supp.2d 967, in favor of Plaintiff-Appellee United States of America.1 For the following reasons, we affirm.
1. The district court properly enjoined Lawson’s operation of a waste disposal facility on allotment TM 314, as the land use agreement he formed with the allottees constituted a commercial lease in all but name and lacked the required approval from the Bureau of Indian Affairs. Pursuant to 25 U.S.C. § 415(a) and 25 C.F.R. § 162.104(d), commercial occupation and use of allotted land by anyone other than an allottee requires a BIA-approved lease. See Seva Resorts, Inc. v. Hodel, 876 F.2d 1394, 1397 (9th Cir.1989); see also Brown v. United States, 86 F.3d 1554, 1556 (Fed.Cir.1996). Neither 25 C.F.R. § 162.104(b) nor 25 C.F.R. § 162.103(a)(4) exempts Lawson Enterprises from this requirement, as the entity consists in part of individuals who are not allottees. Undisputed facts establish that Lawson and his brother, in the name of Lawson Enterprises, “possessed” the allotment, exercising control over the entire property by clearing and grading it, making substantial capital investments, and covering it with waste during a span of fourteen years. See, e.g., United States v. 4,432 Mastercases of Cigarettes, More Or Less, 448 F.3d 1168, 1189 (9th Cir.2006) (quoting Black’s Law Dictionary 1201 (8th ed.2004)). Conclusory declarations asserting that the allottees did not convey a possessory interest in the land to Lawson or Lawson Enterprises cannot defeat summary adjudication. Nilsson v. City of Mesa, 503 F.3d 947, 952 n. 2 (9th Cir.2007). In any event, even assuming the allottees were capable of withdrawing their consent to Lawson’s use of the property, revocable permits are likewise subject to BIA approval. See 25 C.F.R. §§ 162.101, 162.103(a), (b).
2. Federal Rule of Civil Procedure 19(a) did not require the district coui’t to join the allottees as necessary parties to this litigation. See Fed. R. Civ. Px'oc. 19(a) (2006). The allottees were prohibited from taking a position contrary to the Government in its suit to void their *217unsanctioned commercial land use agreement with Lawson, and they are also precluded from relitigating this question in a separate lawsuit. See Heckman v. United States, 224 U.S. 413, 445-46, 32 S.Ct. 424, 56 L.Ed. 820 (1912). Therefore, “complete relief can[ ] be accorded among those already parties” and the allottees’ absence does not subject Lawson or Lawson Enterprises to a “substantial risk of incurring double, multiple, or otherwise inconsistent obligations____” Rule 19(a)(1), (2)(ii). Furthermore, although a court may permit allottees to intervene in appropriate circumstances, see United States v. Truckee-Carson Irrigation Dist., 649 F.2d 1286, 1300-01, 1306-07 & n. 18 (9th Cir.1981), amended by 666 F.2d 351 (9th Cir.1982), aff'd in part and rev’d in pari on other grounds, Nevada v. United States, 463 U.S. 110, 103 S.Ct. 2906, 77 L.Ed.2d 509 (1983), nothing in the record suggests that the allottees attempted to intervene in this action of their own accord.
3. Lawson’s Fifth Amendment challenge to the district court’s order enjoining him from continuing to operate the waste disposal facility absent BIA approval lacks merit. Lawson is neither an allottee nor a contractual party to a valid, BIA-approved lease, so he has no legal entitlement to occupy the allotment and no basis for challenging the constitutionality of an injunction against such occupation. See, e.g., Peterson v. U.S. Dep’t of Interior, 899 F.2d 799, 807 (9th Cir.1990). Nor may Lawson presume to sue on the allottees’ behalf, as he fails to explain why the allot-tees are incapable of asserting their own constitutional rights. See Coal. of Clergy, Lawyers, & Professors v. Bush, 310 F.3d 1153, 1163 (9th Cir.2002).
4. Trial testimony and exhibits admitted into evidence support the district court’s findings of fact and mixed questions of law and fact regarding harm to the Government, public health and the environment, as well as proximate causation. See Harper v. City of Los Angeles, 533 F.3d 1010, 1027 n. 13 (9th Cir.2008); Resource Conservation and Recovery Act (RCRA) § 7003(a), codified as amended at 42 U.S.C. § 6973. In light of these findings and conclusions, the district court did not err in holding Lawson liable to the Government for all cleanup costs up to $42,800,000.00 and liable to the local fire department for $1.8 million in fire response costs.
5. The district court did not err in treating a violation of RCRA § 7003(b) as a strict liability offense and thus disregarding at the liability stage any good-faith efforts on Lawson’s part to comply with the Unilateral Administrative Order (UAO) issued by the Environmental Protection Agency (EPA). Lawson could be — and was — held liable for failing to comply with the UAO, which does not require a mens rea. See RCRA § 7003(b) (“Any person who ... fails ... to comply with [a UAO] may[ ] ... be fined not more than $5,000 for each day in which such ... failure to comply continues.”). In any event, the district court did incorporate Lawson’s good-faith compliance efforts into its penalty calculation, as it only imposed a penalty of $2,000 per day, rather than the statutory maximum of $5,500 to $6,500 per day. See 40 C.F.R. § 19.4 (Table 1). This penalty assessment was not an abuse of the court’s discretion. See, e.g., Tull v. United States, 481 U.S. 412, 427, 107 S.Ct. 1831, 95 L.Ed.2d 365 (1987).
6. We reject Lawson’s argument that the Government was not in possession of the allotment and thus that one of the elements of a prima facie case for trespass was not met in this case. As the Government holds the allotment in trust for allot-tees, it has the power to control occupancy *218on the property and to protect it from trespass. See United States v. West, 232 F.2d 694, 698 (9th Cir.1956); see also 25 C.F.R. § 162.106(a); 73B C.J.S. Public Lands § 5.
7. The district court did not abuse its discretion in proceeding with trial as scheduled rather than issuing a continuance order upon discovering mid-way through the first day that Lawson lacked legal representation. Lawson has indicated that he could not afford counsel, so a continuance would have been futile. Nor did Lawson have a constitutional right to legal representation in this case, as he faced no risk of imprisonment. Hernandez v. Whiting, 881 F.2d 768, 770-71 & n. 3 (9th Cir.1989); compare RCRA § 7003(a), (b) with RCRA § 3008(d), codified as amended at 42 U.S.C. § 6928(d).
Furthermore, the district court did not abuse its discretion by failing to make a sua sponte request for pro bono counsel pursuant to 28 U.S.C. § 1915(e)(1). See Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir.2009). It was within the district court’s discretion to conclude that this case did not present “exceptional circumstances” justifying a request for pro bono counsel. See United States v. 30.64 Acres of Land, More or Less, Situated in Klickitat County, State of Wash., 795 F.2d 796, 799-800 & n. 8 (9th Cir.1986). In any event, Lawson did not inform the court prior to trial that he had not succeeded in obtaining new counsel, pro bono or otherwise. A mid-trial § 1915(e)(1) request to members of the local bar would have necessitated a continuance, thereby placing a substantial burden on the Government, its witnesses, and the court, so it was within the court’s discretion to proceed with trial. See Citicorp Real Estate, Inc. v. Smith, 155 F.3d 1097, 1102 (9th Cir.1998); Muckleshoot Tribe v. Lummi Indian Tribe, 141 F.3d 1355, 1358 (9th Cir.1998).
8. Finally, we note that the Government instigated this suit at the behest of two different federal agencies — the EPA and the BIA — and that it thus represents both the general public and the allottees, whose interests may diverge in some respects. Congress permits the Government to serve dual advocacy roles as environmental steward and allotment trustee, see Nevada, 463 U.S. at 128, 135 n. 14, 103 S.Ct. 2906, but the Government’s focus in this case on the former, with little evident regard for the latter, raises some concern. The statutory scheme governing third-party commercial use of allotted land places the Government, in its capacity as landowner and trustee, in the paternalistic position of sanctioning only those land uses which strike an appropriate balance between economic development for the allot-tees and the impact of that development on the environmental health and safety of the allotment property and surrounding community. See 25 U.S.C. §§ 348, 415(a); Segundo v. City of Rancho Mirage, 813 F.2d 1387, 1393 (9th Cir.1987); Yavapai-Prescott Indian Tribe v. Watt, 707 F.2d 1072, 1074-75 (9th Cir.1983); United States v. S. Pac. Transp. Co., 543 F.2d 676, 698, 699 (9th Cir.1976). In litigating this case, the Government has vigorously pursued its role as advocate for the environment and the general public, and admirably so, but it may have given shorter shrift to its role as representative of the economic interests of the allottees. In fact, nowhere in the record or the Government’s brief is there a discussion of how and whether this litigation serves the allottees’ welfare. We suspect that enjoining further operation of the waste disposal facility and redeveloping the property probably does serve their long-term economic interests, but the Government’s failure to so much as mention its obligation in this regard leaves the impression, right or wrong, *219that it may have eschewed this duty altogether. Nevertheless, while in different circumstances that might have affected the outcome, in this case we are satisfied that the Government did not act in excess of its authority.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
. The Ninth Circuit Clerk of Court's April 9, 2008, order granting Kim Lawson, Jr.'s motion to substitute in to this action to represent the estate of his father, Kim Lawson, Sr., who passed away during the pendency of this appeal, was a proper exercise of this court's discretion. See Federal Rule of Appellate Procedure 43(a)(1) (2008); see also Bennett v. Tucker, 827 F.2d 63, 68 (7th Cir.1987). The Government does not contest Kim Lawson, Jr.’s relationship to Kim Lawson, Sr., nor does it propose an alternative candidate for substitution. Kim Lawson, Jr. has standing to prosecute this appeal on behalf of his deceased father’s estate.
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MEMORANDUM ***
James Lee Crummel (“Crummel”) was convicted in a California state court of two counts of oral copulation on a person unable to resist due to intoxication. He challenged his state conviction in a federal habeas corpus petition filed in the United States District Court for the Central District of California. The district court denied the petition and Crummel filed a timely appeal. We have jurisdiction pursuant to 28 U.S.C. §§ 1291, 2253, and we affirm.1
Crummel’s challenge to his state court conviction is subject to the Antiterrorism and Effective Death Penalty Act of 1996, which requires that in order to be granted relief, Crummel must show either that the state court’s decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” or “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d); Williams v. Taylor, 529 U.S. 362, 386, 403-05, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). Our analysis is limited to the law as it was clearly established by Supreme Court precedent “at the time of the state court’s decision.” Wiggins v. Smith, 539 U.S. 510, 520, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003).
Crummel claims that the prosecution violated his constitutional rights under the Ex Post Facto Clause of the United States Constitution. In 1998, Crummel was convicted in San Bernardino County Superior Court for sexual assaults committed in 1988. The statute of limitations in effect at the time of Crummel’s 1988 conduct had already expired when charges were initially brought in 1995; but the prosecution relied on a new statute of limitations, passed in 1994, which allowed prosecution of sexual assaults on minors within one year of the minor reporting the crime to police. See California Penal Code § 803(g). The California Court of Appeal upheld the conviction, and the California Supreme Court denied Crummel’s petition for review in April of 2000.
Crummel relies heavily on the United States Supreme Court’s decision in Stogner v. California, 539 U.S. 607, 123 S.Ct. 2446, 156 L.Ed.2d 544 (2003), which held that under the Ex Post Facto Clause, the government cannot revive expired criminal prosecution limitations periods by retroactively extending the statute of limitations. Id. at 632-33, 123 S.Ct. 2446. Crummel argues that although Stogner was decided years after the California courts’ rulings, the case merely reaffirmed what was already clearly established federal law before the Supreme Court rendered its opinion in Stogner.
The majority in Stogner determined, over a four-judge dissent, that reviving the expired criminal limitations period in that case was unconstitutional, but explicitly stated that the Court “ha[d] not previously spoken decisively on this matter.” Id. at 620, 123 S.Ct. 2446. The majority addressed conflicting precedents and con-*221eluded that none of the prior cases controlled the outcome in Stogner. Id. at 620-21, 123 S.Ct. 2446. Thus, even the Stogner majority acknowledged that there was no clearly established Supreme Court rule that controlled the issue.
Crummel also relies heavily on the Stog-ner majority’s argument that lower courts and commentators have nearly unanimously agreed that the Ex Post Facto Clause forbids reviving time-barred prosecutions. Id. at 630, 123 S.Ct. 2446. However, AEDPA explicitly limits habeas relief to state court rulings that are contrary to rulings of the United States Supreme Court. Williams, 529 U.S. at 403-04, 120 S.Ct. 1495. The dissent in Stogner also cited several commentators whose opinions are in line with the dissent’s view that reviving expired statutes of limitations does not violate the Ex Post Facto Clause. Stogner, 539 U.S. at 639-40, 123 S.Ct. 2446 (Kennedy, J., dissenting). The opinions of lower courts and commentators do not persuade us that the rule announced in Stog-ner was already clearly established by Supreme Court precedent.
As the Stogner majority candidly admitted, no prior Supreme Court precedents clearly established a rule against reviving expired criminal prosecutions; and the dissent’s analysis shows that a different conclusion was plausible based on prior precedent and the history of the Ex Post Facto Clause. Thus, all nine justices in Stogner, both those in the majority and those in the dissent, agreed that no prior Supreme Court precedent clearly barred revival of expired statutes of limitations. We agree. We hold that at the time the California courts affirmed Crummel’s conviction, their rulings were neither “contrary to, [n]or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1).2
Putting aside the state’s alternative argument, which we do not reach, our resolution of this appeal in accord with the state’s primary argument may seem at tension with Stogner and the principle endorsed in that case by the Supreme Court, though after the California courts ruled in Crummel’s case. However, it is a result that is dictated by the language and in-tendment of AEDPA, as it has been interpreted by the United States Supreme Court.
The district court’s dismissal of Crum-mel’s habeas petition was correct under the law.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
. Because die parties are familiar with the facts and procedural history, we do not restate them here except as necessary to explain our disposition.
. Because we hold that Crummel's California conviction must be upheld even if it would be considered unconstitutional after Stogner, we need not reach the state's alternative argument that the California statute of limitations, section 803(g), was a constitutionally permissible “extension” rather than a “revival” of the limitations period.
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MEMORANDUM **
Western Titanium and its Pi'esident, Daniel Schroeder, have filed both an interlocutory appeal and a petition for writ of mandamus or prohibition challenging an order entered by the district court on Apxúl 14, 2009. The distx'ict court’s order required Western Titanium and Schroeder to submit a more detailed privilege log in suppox't of their request, under Federal Rule of Criminal Procedui'e 41(g), that the government return documents seized from Western Titanium’s offices following execution of a April 14, 2008 search warrant. Because we lack jurisdiction over the interlocutory appeal and because we find no clear ex-ror on the part of the district court to justify issuance of a writ of mandamus, we dismiss the appeal and deny the mandamus petition.
Under the so-called “final judgment” rule, appellate jurisdiction is not normally vested xxntil a ei'iminal defendant has been convicted and sentenced. See Berman v. United States, 302 U.S. 211, 212-213, 58 S.Ct. 164, 166, 82 L.Ed. 204 (1937). Here, because trial has not yet occurred, Western Titanium and Schroeder can appeal from the district court’s April 15, 2009, interlocutory decision only if that decision 1) conclusively detexmines the disputed questions; 2) resolves an important issue completely separate from the merits of the action; and 3) is effectively unreviewable on appeal from a final judgment. Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 98 S.Ct. 2454, 2458, 57 L.Ed.2d 351 (1978).
Appellants’ intexiocutoxy appeal fails because there has been no conclusive determination by the district court triggering appellate jurisdiction under 28 U.S.C. § 1291. Appellants had the burden of establishing that protections against disclosure applied to the seized documents such that their return was warranted under Rule 41(g). See In re Grand Jury Investigation, 974 F.2d 1068, 1070 (9th Cir.1992) (attorney-client privilege); Conoco Inc. v. United States Dep’t. of Justice, 687 F.2d 724, 730 (3rd Cir.1982) (attorney work-product protection); see also Fed.R.Civ.P. 45(d)(2). After determining that the privilege log and ex paite declarations offered by Appellants still failed to meet that burden, the district court oi'dered that the piivilege log be supplemented to include additional infoimation needed to assess whether the claimed protections were meritorious. The distx'ict court also sought bi’iefing on a number of other issues surrounding the conflict before it.
The augmentation oi'dered by the district coui't comports with the require*226ments for a valid privilege log we articulated in In re Grand Jury Investigation, 974 F.2d at 1071 (citing Dole v. Milonas, 889 F.2d 885, 888 n. 3, 890 (9th Cir.1989)). Appellants never submitted a revised log in the wake of the district court’s April 15, 2009, order; and while they claim that compliance risked compromise of the right to avoid self-incrimination under the Fifth Amendment to the United States Constitution, the district court’s order expressly invited further briefing on whether its order impinged on any Fifth Amendment rights. The fact that Appellants failed to respond either with a revised privilege log, or additional briefing as to why it could not do so without running afoul of the protections afforded by the Fifth Amendment, precludes us from finding that the district court’s order amounted to a conclusive determination for purposes of an interlocutory appeal. Consequently we lack jurisdiction over the appeal.
Western Titanium fares no better in its alternative request for a writ of mandamus or prohibition under 28 U.S.C. § 1651(a). The extraordinary remedy represented by mandamus relief is justified only in “exceptional circumstances.” Will v. United States, 389 U.S. 90, 95, 88 S.Ct. 269, 273, 19 L.Ed.2d 305 (1967). Those exceptional circumstances require, inter alia, a finding that the district court’s order is “clearly erroneous as a matter of law.” Bauman v. United States Dist. Court, 557 F.2d 650, 654-55 (9th Cir.1977). As stated above, the demands placed by the district court on Western Titanium for invocation of the protections against disclosure were consistent with the requirements we approved in In re Grand Jury Investigation, supra. The district court also invited additional briefing on Fifth Amendment issues, and provided that compliance with its order would not amount to any general waiver of privilege as to items seized by the government. There was no clear error.
For all the foregoing reasons, the interlocutory appeal is DISMISSED and the mandamus petition is DENIED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.
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MEMORANDUM **
Kulwinder Singh, native and citizen of India, petitions for review of the Board of Immigration Appeals’ order dismissing his appeal from an immigration judge’s decision denying his application for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence factual findings, Pedro-Mateo v. INS, 224 F.3d 1147, 1150 (9th Cir.2000), and we deny the petition for review.
The agency denied Singh’s asylum application claim as time barred. Singh does not challenge this finding in his opening brief.
Substantial evidence supports the agency’s finding that changed country conditions in India rebut Singh’s presumption of a clear probability of persecution. See 8 C.F.R. § 208.16(b)(l)(i)(A); see Sowe v. Mukasey, 538 F.3d 1281, 1285-86, 1288 (9th Cir.2008). Accordingly, Singh’s withholding of removal claim fails.
Finally, substantial evidence supports the agency’s denial of CAT relief based on changed country conditions. See Sowe, 538 F.3d at 1288-89.
PETITION FOR REVIEW DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Susan Lew appeals from a judgment of the United States District Court for the Northern District of California granting summary judgment to the Superior Court of California. She alleges that she was terminated by the Superior Court on the basis of race and gender; in retaliation for requesting medical leave; and in retaliation for running for judicial office as an Asian Democrat. Lew has brought the following causes of action which must be addressed on appeal: (1) discrimination on the basis of race or gender in violation of Title VII (“Title VII”), 42 U.S.C. §§ 2000e et seq.; (2) discrimination on the basis of race or gender in violation of Fair Employment and Housing Act (“FEHA”), Cal. Gov’t Code §§ 12900-12996; (3) discrimination or retaliation in violation of the Family Medical Leave Act (“FMLA”), 29 U.S.C. §§ 2601-2654; (4) discrimination or retaliation in violation of the California Family Rights Act (“CFRA”), Cal. Gov’t Code § 12945.2(a); and (5) wrongful termi*229nation in violation of public policy pursuant to Cal. Gov’t Code § 3201.
We review a grant of summary judgment de novo. Buono v. Norton, 371 F.3d 543, 545 (9th Cir.2004) (citation and footnote omitted). Appellate review is governed by the same standards for summary judgment under Fed.R.Civ.P. 56 as are applied by the trial court. Qwest Commc’ns, Inc. v. City of Berkeley, 433 F.3d 1253, 1256 (9th Cir.2006). A party moving for summary judgment must demonstrate that there are no genuine issues of material fact to be tried and that it is therefore entitled to summary judgment as a matter of law. Fed.R.CivP. 56(c). On a motion for summary judgment, “the court must draw all reasonable inferences in favor of the nonmoving party, and it may not make credibility determinations or weigh the evidence.” Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). This Court may affirm the grant of summary judgment upon any ground supported by the record. Simo v. Union of Needletrades, 322 F.3d 602, 610 (9th Cir.2003).
Lew alleges discrimination on the basis of race and gender in violation of Title VII and FEHA. The same legal principles apply to claims under Title VII and FEHA; therefore, the claims will be treated together here. See Metoyer v. Chassman, 504 F.3d 919, 941 (9th Cir.2007). Title VII makes it “an unlawful employment practice for an employer ... to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(l); see also Cal. Gov’t Code § 12940(a). Lew has not set forth any evidence that the Superior Court judges and staff responsible for her termination made their decision on the basis of race or gender, rather than because she could not fulfill her responsibilities as a staff attorney for the court. Therefore, summary judgment was appropriately entered in favor of the Superior Court on Lew’s Title VII/FEHA claims.
Lew alleges that the Superior Court transferred her and then terminated her in violation of the FMLA and the CFRA. The CFRA adopts the same language as the FMLA, and California state courts have held that the same standards apply; therefore, this memorandum will treat both causes of action together. See Liu v. Amway Corp., 347 F.3d 1125, 1132 n. 4 (9th Cir.2003). “An employer may not transfer the employee to an alternative position in order to discourage the employee from taking leave or otherwise work a hardship on the employee.” 29 C.F.R. § 825.204(d). To prevail on a claim that FMLA leave was impermissibly considered in the decision to terminate, the employee must prove by a preponderance of the evidence that taking FMLA leave was a negative factor in the decision to terminate her, by using direct or circumstantial evidence, or both. See Liu, 347 F.3d at 1136; Bachelder v. Am. W. Airlines, Inc., 259 F.3d 1112, 1125 (9th Cir.2001). However, “[t]he FMLA does not entitle the employee to any rights, benefits, or positions they would not have been entitled to had they not taken leave.” Liu, 347 F.3d at 1132 (citing 29 U.S.C. § 2614(a)(3)(B)). In this case, there is insufficient evidence to create an issue of material fact that Lew was either transferred or terminated because she asked to take leave in order to take care of her ill husband to preclude summary judgment in favor of the Superior Court.
Lew alleges that the Superior Court terminated her in violation of public policy as set forth in Cal. Gov’t Code § 3201, which provides, in relevant part, *230that “no restriction shall be placed on the political activities of any officer or employee of a state or local agency.” Under California law, employment is at-will unless the parties contract otherwise. See Cal. Lab.Code § 2922. The tort of wrongful termination is an exception to at-will employment which lies when the termination was predicated on a motivation that violated public policy. See Stevenson v. Superior Court, 16 Cal.4th 880, 889, 66 Cal.Rptr.2d 888, 941 P.2d 1157 (Cal.1997).
The California Tort Claims Act (“CTCA”) governs all public entities and their employees and all noncontractual bases of compensable damage or injury that might be actionable between private persons. See Cal. Gov’t Code §§ 810.8, 811.2, 811.4, 814; see also Caldwell v. Montoya, 10 Cal.4th 972, 980, 42 Cal.Rptr.2d 842, 897 P.2d 1320 (Cal.1995). Under § 815 of the CTCA, “[ejxcept as otherwise provided by statute ... [a] public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person.” Cal. Gov’t Code § 815 (emphasis added). Wrongful termination is a common law tort claim, not one authorized by statute. See Palmer v. Regents of the Univ. of Cal., 107 Cal.App.4th 899, 909, 132 Cal.Rptr.2d 567 (Cal.Ct.App.2003).
Even assuming the Superior Court is not immune under the CTCA, Lew has not produced sufficient evidence to create a genuine issue of material fact that she was fired because Republican judges viewed her as a threat. Therefore, there is no genuine issue of material fact precluding entry of summary judgment in favor of the Superior Court on Lew’s claim for wrongful termination.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Luis Enriquez-Corral appeals from his guilty-plea conviction and 78-month sentence for illegal reentry after deportation, in violation of 8 U.S.C. § 1326(a).
Pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), Enriquez-Corral’s counsel has filed a brief stating there are no grounds for relief, along with a motion to withdraw as counsel of record. We have provided the appellant with the opportunity to file a pro se supplemental brief. No pro se supplemental brief or answering brief has been filed.
Our independent review of the record pursuant to Penson v. Ohio, 488 U.S. 75, 80-81, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), discloses no arguable grounds for relief on direct appeal.
Accordingly, counsel’s motion to withdraw is GRANTED, and the district court’s judgment is AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM *
Loren Goldtooth (“Goldtooth”) appeals his conviction and sentence for violation of 18 U.S.C. § 1163. We affirm.
Viewed in the light most favorable to the prosecution, a rational trier of fact could have found from the evidence that Goldtooth had the requisite intent to defraud or injure the Tohono O’Odham Indian Nation (the “Tribe”) by submitting paperwork misrepresenting his entitlement to overtime and reimbursement for work-related expenses, and by instructing lower-level employees to approve his requests. Even if there were insufficient evidence of “deceit,” Goldtooth would still be guilty of conversion because he intentionally and improperly converted tribal property for his own use. See United States v. Janis, 556 F.3d 894, 898 (8th Cir.2009).
Goldtooth argues the district court erred by failing to sua sponte give a “theory of the case” instruction. The district court, however, believed it was conveying the defense theory in its instructions concerning “willfulness” and “knowingly,” and told counsel as much.
Because Goldtooth did not object or propose any specific instruction on his defense theory that was not given, we review for plain error. United States v. Bear, 439 F.3d 565, 568 (9th Cir.2006). However, there was no error in this case because the instructions, viewed as a whole and especially those regarding state of mind, adequately covered the theory of defense, which Goldtooth himself described (in briefing and at argument) as a lack of requisite intent to injure the Tribe. See *233United States v. Duran, 59 F.3d 938, 941 (9th Cir.1995) (court is not required to give defendant’s proposed instructions if the given instructions adequately cover the defense theory).
To the extent Goldtooth contends he should have had a specific instruction on ratification or approval by the Tribe, that theory was not supported by the evidence at trial. See United States v. Bowman, 720 F.2d 1103, 1105 (9th Cir.1983) (court is only required to give instruction on theory of defense if supported by the evidence); cf. Bear, 439 F.3d at 569 (noting public authority defense was a viable defense and required sua sponte instruction). We certainly cannot say it was plain or obvious error not to give a more specific instruction under these circumstances, or, even assuming error, that it affected Goldtooth’s substantial rights.
Nor did the district court plainly err by instructing the jury it could infer intent to convert from the facts and circumstances attending the act. Unlike the impermissible evidentiary inference instructions disapproved of by United States v. Rubio-Villareal, 967 F.2d 294 (9th Cir.1992) (en banc), the instruction here did not isolate any particular piece of evidence or preclude consideration of all the evidence submitted at trial. Rather, it is a classic circumstantial evidence instruction that is relevant and appropriate in a case involving intent. See United States v. Sullivan, 522 F.3d 967, 974 (9th Cir.2008) (“intent to defraud may be established by circumstantial evidence”); Taylor v. United States, 320 F.2d 843, 849 (9th Cir.1963) (unlawful and willful purpose to retain money “is not generally susceptible of direct proof but may be inferred from the facts and circumstances of the act.”).
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
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MEMORANDUM **
Shanel Ann Stasz, Chapter 7 debtor, appeals pro se from the Bankruptcy Appellate Panel’s judgment affirming the bankruptcy court’s summary judgment setting aside Stasz’s fraudulent transfer of her condominium to a sham trust pursuant to California Civil Code § 3439. To the extent we have jurisdiction, it is under 28 U.S.C. § 158(d). We dismiss and remand.
Stasz’s appeal is moot because the personal property has already been sold and the bankruptcy court’s conclusion that Alison Claire-Genis was a good faith purchaser was not clearly erroneous. See 11 U.S.C. § 363(m); Paulman v. Gateway Venture Partners III, L.P. (In re Filtercorp, Inc.), 163 F.3d 570, 576-77 (9th Cir.1998) (‘When a sale of assets is made to a good faith purchaser, it may not be modified or set aside unless the sale was stayed pending appeal.”).
We grant Gonzalez’s April 22, 2008 request for remand to the bankruptcy court in order for the Trustee to assert the estate’s interest in the funds Stasz deposited as a condition of obtaining a temporary stay.
Stasz’s remaining contentions are unpersuasive.
DISMISSED and REMANDED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Rickey A. Beaver, a former detainee in two King County jails, appeals pro se from the district court’s judgment dismissing his 42 U.S.C. § 1983 action under 28 U.S.C. § 1915(e)(2)(B)(ii). We have jurisdiction under 28 U.S.C. § 1291. We review de novo. Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir.1998) (order). We reverse and remand.
The conclusion that Beaver’s first claim was barred by Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), was improper because the claim did not necessarily imply the invalidity of Beaver’s continuing confinement. See Butterfield v. Bail, 120 F.3d 1023, 1024 (9th Cir.1997) (explaining that Heck bars § 1983 challenges which would necessarily imply the invalidity of the judgment or continuing confinement). Beaver did not seek earlier release but rather an earlier court hearing or confinement in a mental health facility rather than a jail. See Rev. Code Wash. § 10.77.220. Accordingly, Beaver’s first claim is not Heck-barred.
The determination that res judicata barred Beaver from relitigating his second claim, concerning his sleep medication, was also improper. Beaver could not have asserted this claim in the previous action because it concerned events that took place after the previous action. See Greg*237ory v. Widnall, 153 F.3d 1071, 1074 (9th Cir.1998) (per curiam) (“Res judicata (or claim preclusion) bars all grounds for recovery which could have been asserted, ... in a prior suit between the same parties on the same cause of action.”) (citation omitted) (emphasis added).
On remand, the district court should consider whether Beaver is entitled to amend his complaint. See Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir.2000) (en banc).
Beaver shall bear his own costs on appeal.
REVERSED and REMANDED.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
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MEMORANDUM **
Jack Men Wilson, a former California state prisoner, appeals pro se from the district court’s judgment dismissing his 42 U.S.C. § 1983 action, without prejudice, for failure to exhaust administrative remedies as required by the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a). We have jurisdiction under 28 U.S.C. § 1291. We review de novo. Wyatt v. Terhune, 315 F.3d 1108, 1117 (9th Cir.2003). We vacate and remand.
The district court concluded that Wilson failed to exhaust prison remedies with respect to his claim that Mata denied him access to his legal materials in retaliation for filing grievances. However, the March 12, 2005 grievance complaining about Mata’s refusal to transport Wilson to his legal materials gave the prison adequate notice of the ñatee of the wrong Wilson sought to be remedied — namely, Mata’s alleged refusal to provide Wilson access to his legal materials. See Griffin v. Arpaio, 557 F.3d 1117, 1120-21 (9th Cir.2009) (holding that a grievance generally suffices for exhaustion purposes if it alerts the prison to the nature of the wrong for which redress is sought, and that it need not include legal terminology or theories unless they are in some way needed to provide notice of the harm being grieved).
Moreover, Wilson exhausted all available prison remedies. The first level response granted Wilson’s requests in full, did not advise Wilson that he could appeal the determination if dissatisfied, and there is no indication that additional relief might have been available if Wilson appealed. See Brown v. Valoff 422 F.3d 926, 941-42 (9th Cir.2005) (determining whether plaintiff exhausted remedies based on whether the relevant grievance was granted or denied, whether the plaintiff was advised that further review was available, and whether additional relief might have been available if plaintiff had appealed).
VACATED and REMANDED.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
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MEMORANDUM **
Shanel Ann Stasz, a Chapter 7 debtor, appeals pro se from the district court’s order dismissing as moot her appeal of the bankruptcy court’s order granting the trustee’s motion to sell Stasz’s condominium to pay off creditors. We have jurisdiction under 28 U.S.C. § 1291. We review de novo the district court’s conclusion that the appeal is moot, Nat’l Mass Media Telecomm. Sys., Inc., v. Stanley (In re Nat’l Mass Media Telecomm. Sys., Inc.), 152 F.3d 1178, 1180 (9th Cir.1998), and we affirm.
The district court properly dismissed the appeal as moot because the property at issue had been sold to a third-party good faith purchaser, and the court was no longer able to fashion an effective remedy. See id. (affirming dismissal on mootness grounds where property at issue was sold and court could not grant effective relief).
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3.
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MEMORANDUM **
Shanel Ann Stasz, Chapter 7 debtor, appeals pro se from the Bankruptcy Appellate Panel’s judgment affirming the bankruptcy court’s summary judgment setting aside Stasz’s fraudulent transfer of her condominium to a sham trust pursuant to California Civil Code § 3439. To the extent we have jurisdiction, it is under 28 U.S.C. § 158(d). We dismiss and remand.
Stasz’s appeal is moot because the personal property has already been sold and the bankruptcy court’s conclusion that Alison Claire-Genis was a good faith purchaser was not clearly erroneous. See 11 U.S.C. § 363(m); Paulman v. Gateway Venture Partners III, L.P. (In re Filtercorp, Inc.), 163 F.3d 570, 576-77 (9th Cir.1998) (‘When a sale of assets is made to a good faith purchaser, it may not be modified or set aside unless the sale was stayed pending appeal.”).
We grant Gonzalez’s April 22, 2008 request for remand to the bankruptcy court in order for the Trustee to assert the estate’s interest in the funds Stasz deposited as a condition of obtaining a temporary stay.
Stasz’s remaining contentions are unpersuasive.
DISMISSED and REMANDED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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https://www.courtlistener.com/api/rest/v3/opinions/8472782/
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MEMORANDUM **
Rickey A. Beaver, a former detainee in two King County jails, appeals pro se from the district court’s judgment dismissing his 42 U.S.C. § 1983 action under 28 U.S.C. § 1915(e)(2)(B)(ii). We have jurisdiction under 28 U.S.C. § 1291. We review de novo. Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir.1998) (order). We reverse and remand.
The conclusion that Beaver’s first claim was barred by Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), was improper because the claim did not necessarily imply the invalidity of Beaver’s continuing confinement. See Butterfield v. Bail, 120 F.3d 1023, 1024 (9th Cir.1997) (explaining that Heck bars § 1983 challenges which would necessarily imply the invalidity of the judgment or continuing confinement). Beaver did not seek earlier release but rather an earlier court hearing or confinement in a mental health facility rather than a jail. See Rev. Code Wash. § 10.77.220. Accordingly, Beaver’s first claim is not Heck-barred.
The determination that res judicata barred Beaver from relitigating his second claim, concerning his sleep medication, was also improper. Beaver could not have asserted this claim in the previous action because it concerned events that took place after the previous action. See Greg*237ory v. Widnall, 153 F.3d 1071, 1074 (9th Cir.1998) (per curiam) (“Res judicata (or claim preclusion) bars all grounds for recovery which could have been asserted, ... in a prior suit between the same parties on the same cause of action.”) (citation omitted) (emphasis added).
On remand, the district court should consider whether Beaver is entitled to amend his complaint. See Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir.2000) (en banc).
Beaver shall bear his own costs on appeal.
REVERSED and REMANDED.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
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https://www.courtlistener.com/api/rest/v3/opinions/8472786/
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MEMORANDUM **
Kenny Kiung, a native and citizen of Indonesia, petitions for review of the Board of Immigration Appeals’ order affirming an immigration judge’s (“IJ”) decision denying his application for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252. Reviewing for substantial evidence, Wakkary v. Holder, 558 F.3d 1049, 1056 (9th Cir.2009), we deny the petition for review.
Substantial evidence supports the IJ’s past persecution finding because Kiung failed to establish the government was unwilling or unable to control the people who beat and robbed him, see Castro-Perez v. Gonzales, 409 F.3d 1069, 1072 (9th Cir.2005), and he failed to demonstrate that the harm he suffered in the other incidents rose to the level of persecution, see Nagoulko v. INS, 333 F.3d 1012, 1016-18 (9th Cir.2003). Substantial evidence also supports the agency’s well-founded fear finding because, even as a member of a disfavored group, Kiung failed to demon*240strate the requisite individualized risk of persecution. Cf. Sael v. Ashcroft, 386 F.3d 922, 927-29 (9th Cir.2004). Lastly, the record does not compel the conclusion that Kiung demonstrated a pattern or practice of persecution against ethnic Chinese Christians in Indonesia. See Wakkary, 558 F.3d at 1060-62.
Because Kiung did not establish eligibility for asylum, it necessarily follows that he did not satisfy the more stringent standard for withholding of removal. See Zehatye v. Gonzales, 453 F.3d 1182, 1190 (9th Cir.2006).
Kiung does not raise any arguments in his opening brief regarding the agency’s denial of his CAT claim. See Martinez-Serrano v. INS, 94 F.3d 1256, 1259-60 (9th Cir.1996) (issues not supported by argument are deemed waived).
Respondent’s motion to extend time to file its brief is granted.
PETITION FOR REVIEW DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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https://www.courtlistener.com/api/rest/v3/opinions/8472789/
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*241MEMORANDUM **
Daniel Wijaya, a native and citizen of Indonesia, petitions for review of the Board of Immigration Appeals’ order affirming an immigration judge’s decision denying his application for asylum, withholding of removal, and. protection under the Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252. Reviewing for substantial evidence, Wakkary v. Holder, 558 F.3d 1049, 1056 (9th Cir.2009), we deny the petition for review.
Wijaya does not raise any arguments in his opening brief regarding either the agency’s dispositive determination that his asylum claim was time-barred, or the agency’s denial of his CAT claim. See Martinez-Serrano v. INS, 94 F.3d 1256, 1259-60 (9th Cir.1996) (issues not supported by argument are deemed waived).
Substantial evidence supports the agency’s finding that Wijaya failed to establish past persecution in Indonesia. See Hoxha v. Ashcroft, 319 F.3d 1179, 1182 (9th Cir.2003) (petitioner’s experiences not “so severe as to compel a finding of past persecution.”). In addition, even as a member of a disfavored group, Wijaya did not demonstrate a clear probability of future persecution. See id. at 1185.
PETITION FOR REVIEW DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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https://www.courtlistener.com/api/rest/v3/opinions/8472791/
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MEMORANDUM **
Hendra, a native and citizen of Indonesia, petitions for review of the Board of Immigration Appeals’ order affirming an immigration judge’s decision denying his application for withholding of removal and protection under the Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252. We review de novo due process claims, Ibarra-Flores v. Gonzales, 439 F.3d 614, 620 (9th Cir.2006), and review for substantial evidence for factual findings, Wakkary v. Holder, 558 F.3d 1049, 1056 (9th Cir.2009). We deny the petition for review.
Substantial evidence supports the agency’s finding that Hendra failed to establish he suffered harm that rose to the level of past persecution on account of his Chinese ethnicity. See Hoxha v. Ashcroft, 319 F.3d 1179, 1182 (9th Cir.2003). Even as a member of a disfavored group, and even if credible regarding his religious claim, Hendra did not demonstrate the requisite individualized risk of persecution to establish clear probability of future persecution. See id. at 1184-85; see Wakkary, 558 F.3d at 1066 (“An applicant for withholding of removal will need to adduce a considerably larger quantum of individualized-risk evidence to prevail[.]”). Accordingly, substantial evidence supports the agency’s denial of withholding of removal.
Substantial evidence also supports the agency’s denial of CAT relief because Hendra failed to establish a likelihood of torture in Indonesia. See Wakkary, 558 F.3d at 1068.
Finally, Hendra’s due process claims fail because he has not established prejudice. See Ortiz v. INS, 179 F.3d 1148, 1153 (9th Cir.1999).
PETITION FOR REVIEW DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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https://www.courtlistener.com/api/rest/v3/opinions/8472793/
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MEMORANDUM **
Arturo Reyes-Rodriguez appeals his jury-trial conviction for drug crimes, and possession of a firearm in furtherance of a drug trafficking offense, in violation of 21 U.S.C. §§ 841(a)(1) and 18 U.S.C. § 924(c)(1)(A). We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
The sole argument on appeal is that trial counsel was ineffective. Although we generally do not review such claims on direct appeal, here the record is sufficiently developed to permit us to resolve the issue. See United States v. Vgeri, 51 F.3d 876, 882 (9th Cir.1995).
There is no “reasonable probability that, but for counsel’s [allegedly] unprofessional errors, the result of the proceeding would have been different.” See Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Therefore, Reyes-Rodriguez was not prejudiced by *244his counsel’s allegedly deficient performance, and we reject his contention that he was denied ineffective assistance of counsel. See Strickland, 466 U.S. at 697, 104 S.Ct. 2052 (“[A] court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.”).
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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https://www.courtlistener.com/api/rest/v3/opinions/8473099/
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Kenneth D. Liggins appeals the district court’s orders denying relief on his 42 U.S.C. § 1981 (2006) complaint and ordering him to pay attorneys fees and costs in the amount of $5,000. We have reviewed the record and find no reversible error. Accordingly, we deny Liggins’s motion to compel and we affirm for the reasons stated by the district court. See Liggins v. William A. Hazel, Inc., No. 1:07-cv-01084-LMB-JFA (E.D. Va. filed June 20, 2008 & entered June 23, 2008; filed Aug. 8, 2008 & entered Aug. 11, 2008). 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.
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