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MEMORANDUM ***
On appeal, Frias-Cobos claims that the trial court (1) violated his constitutional right (under the Confrontation Clause) by failing to allow him to cross-examine a cooperating co-conspirator; (2) erred by allowing the government to admit written stipulations after the government rested its case, but before closing argument or jury instruction; (3) wrongfully applied a two-level enhancement under the sentencing guidelines pursuant to its findings that one of Frias-Cobos’s co-conspirators was in possession of a firearm at the time of the crime, that the possession was in furtherance of the crime, and that the possession was reasonably foreseeable to Frias-Cobos; and (4) erred by finding Frias-Cobos ineligible for a downward adjustment pursuant to its finding that Frias-Cobos did not play a minor role in the crimes.
1. The trial court limited the scope of the defendant’s cross examination of a co-conspirator; it did not exclude an area of inquiry. “In reviewing a limitation on the scope of questioning within a given area, we recognize that ‘trial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable *173limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness’ safety, or interrogation that is repetitive or only marginally relevant.’ ” United States v. Larson, 495 F.3d 1094, 1101 (9th Cir.2007) (en banc) (quoting Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986)). A trial court’s restriction on the manner or scope of cross-examination is not a constitutional violation, and this panel reviews for abuse of discretion. Larson, 495 F.3d at 1101.
Here, while the court (a) limited the co-conspirator’s plea agreement from being entered into evidence and read into the record, upon objection of a codefendant who was mentioned in the agreement, and (b) would not allow detailed questioning about the co-conspirator’s experiences in jail, Frias-Cobos questioned the witness about the facts that (1) she had made a plea agreement with the government; (2) she was required to testify for the government in exchange for receiving a recommendation for a reduced sentence; (3) she was facing a mandatory minimum prison sentence, a maximum life sentence, and a $4 million fine; (4) she expected to get less time in prison for her cooperation; (5) she had a “strong desire” for the government to make a recommendation for a lesser sentence; and (6) she had been in jail since her arrest. Therefore, the trial court did not abuse its discretion in limiting the scope of the inquiry.
While the court commented to Frias-Cobos’s counsel that he needed to “move his examination along,” the court did not abuse its discretion because counsel was given ample time to conduct his examination.
2. Generally, we review a district court’s evidentiary rulings for abuse of discretion. United States v. Parks, 285 F.3d 1133, 1138 (9th Cir.2002). However, we review for plain error when no objection is made to the trial court. United States v. Tisor, 96 F.3d 370, 376 (9th Cir.1996) (citing Fed.R.Evid. 103(d) and Fed.R.Crim.P. 52(b)). Here, even under the less deferential abuse of discretion standard, the district court’s ruling survives. The court allowed the stipulation to be read to the jury because: (1) the decision regarding admission took place before jury instruction and closing arguments; (2) the stipulation was intended by counsel to facilitate the movement of the trial and avoid cost and expense in bringing in additional witnesses to verify the information in the stipulation; (3) the evidence had been presented previously, in detail, by reading the stipulations and by testimony; (4) the actual methamphetamine was admitted into evidence; and (5) all counsel signed the document, so there was little chance of prejudice.
3. We review a. district court’s sentencing findings, regarding (1) whether a coconspirator possessed a firearm during the commission of a narcotics crime, and (2) whether the conduct in furtherance of the conspiracy was reasonably foreseeable, for clear error. United States v. Garcia, 909 F.2d 1346, 1349 (9th Cir.1990). The clear error standard requires an inquiry into whether the district court’s findings were clearly erroneous. Id. Review under the clearly erroneous standard is significantly deferential, requiring a “definite and firm conviction that a mistake has been committed.” See Easley v. Cromartie, 532 U.S. 234, 242, 121 S.Ct. 1452, 149 L.Ed.2d 430 (2001) (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948)). The district court’s findings were not clearly erroneous, because: (a) Frias-Cobos had known co-conspirator MarquezHuazo for at least two years; (b) Frias-Cobos knew Marquez-Huazo was a major drug dealer; (c) Frias-Cobos lived in the same apartment complex as Marquez-*174Huazo; and (d) based on this familiarity, it was reasonably foreseeable to Frias-Cobos that, when moving such large amounts of drugs and money, firearms are frequently involved and a person such as Marquez-Huazo would be concealing a firearm.
4. We review a district court’s ruling on whether the defendant was a minor participant in the criminal activity for clear error. See Ajala v. United States Parole Comm’n, 997 F.2d 651, 656 (9th Cir.1993). The district court did not clearly err because the judge agreed with the jury’s findings that (1) the crimes were a jointly undertaken criminal activity; (2) Frias-Cobos was a close and trusted member of the criminal group; and (3) Frias-Cobos played a key role in physically transporting at least nine pounds of methamphetamine from California to Idaho.
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 **
Linda Hart appeals the district court’s decision affirming the Administrative Law Judge’s (“ALJ”) denial of her application for disability insurance benefits. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
The panel’s review is “essentially the same as that undertaken by the district court.” Stone v. Heckler, 761 F.2d 530, 532 (9th Cir.1985). In both cases, the court determines whether the ALJ’s decision can be supported by “substantial evidence.” Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir.2004). “Substantial evidence” is “more than a mere scintilla, but less than a preponderance.” Desrosiers v. Sec’y of Health & Human Servs., 846 F.2d 573, 576 (9th Cir.1988) (internal quotations and citations omitted).
1. The panel reviews a claimant’s testimony of medical impairment under a two-step process. First, “[t]he claimant must produce objective medical evidence of an underlying impairment ‘which could reasonably be expected to produce the pain or other symptoms alleged....’” Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir.1991) (quoting 42 U.S.C. § 423(d)(5)(A) (1988)). Second, assuming claimant produces such evidence and there is no affirmative evidence the claimant is malingering, the Commissioner must provide “clear and convincing” reasons for rejecting the testimony. Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir.1993) (quoting Swenson v. Sullivan, 876 F.2d 683, 687 (9th Cir.1989)). The record is replete with instances of Hart making misrepresentations, doctor-shopping, and drug seeking. The ALJ thus provided clear and convincing reasons for rejecting Hart’s testimony.
2. The ALJ erred by partially rejecting the testimony of Hart’s husband and sister. Though the ALJ gave their testimony “some weight,” it is clear the ALJ did not find either witness entirely credible. An ALJ may reject a lay witness testimony “only if he gives reasons germane to each witness whose testimony he rejects.” Smolen v. Chater, 80 F.3d 1273, 1288 (9th Cir.1996) (internal citation omitted). In this instance, the ALJ provided no reasons at all for giving either witness’s testimony less than full weight. Nevertheless, we find the ALJ’s error was “harmless.” Stout v. Comm’r of Soc. Sec. Admin., 454 F.3d 1050, 1054 (9th Cir.2006). Even if the court were to fully credit the testimonies of Hart’s husband and sister, the ALJ still had substantial evidence to support his finding that Hart’s impairments were not severe.
3. Substantial evidence supports the finding that Hart’s migraines were not severe. While Dr. Carlini diagnosed migraines, he made no statement about their severity. Furthermore, Hart failed to fol*178low all of Carlini’s medical advice, which undermines Hart’s claims that the migraines were severe.
4. An ALJ may reject a treating doctor’s uncontradicted opinion, only after giving “clear and convincing reasons supported by substantial evidence in the record.” Reddick v. Chater, 157 F.3d 715, 725 (9th Cir.1998) (internal quotations and citation omitted). The ALJ provided clear and convincing reasons for rejecting the testimony of Dr. Dempsey and Dr. Fiallos.
As to Dr. Dempsey (who found Hart had functional limitations), Dr. Dempsey provided his testimony on a checkbox that contained none of his rationale or explanations. More importantly, Dr. Dempsey noted that Hart’s bipolar disorder substantially improved when taking the proper medications and that Hart nonetheless stopped going to her bipolar support group.
As to Dr. Fiallos (who suggested Hart had functional limitations), his finding was based on Hart’s self report, which the ALJ properly rejected. Second, Hart’s multiple visits to doctors, providers, and support groups belie her supposed anxiety. And finally, Hart testified that she had been gardening, cooking, and fishing, all of which contradict her claims of debilitating impairments.
5. An ALJ may rely on a vocational expert’s testimony, so long as the hypothetical questions “set out all the limitations and restrictions of the particular claimant....” Magallanes v. Bowen, 881 F.2d 747, 756 (9th Cir.1989) (alterations in original) (quoting Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir.1988)). However, “the ALJ is ‘free to accept or reject these restrictions ... as long as they are supported by substantial evidence.’” Id. at 756-57 (quoting Martinez v. Heckler, 807 F.2d 771, 774 (9th Cir.1986)) (alterations in original). For the foregoing reasons, the ALJ did not err by failing to include all the limitations Hart urged to be included in the hypothetical given to the vocational expert.
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 *
Isaías Suvia-Reyes appeals the district court’s denial of his motion to dismiss the indictment charging him with illegal reentry in violation of 8 U.S.C. § 1326, and his motion for reconsideration. We affirm.
Suvia-Reyes is entitled to “some meaningful review” of his prior expedited removal order before it may be used to establish conclusively an element of his criminal offense. United States v. Mendoza-Lopez, 481 U.S. 828, 837-38, 107 S.Ct. 2148, 95 L.Ed.2d 772 (1987) (emphasis in original). As judicial review was unavailable, see 8 U.S.C. § 1225(b)(1)(A), (b)(1)(C), (b)(1)(D); 8 C.F.R. § 235.3(b)(2)(ii), and he had exhausted administrative remedies, Suvia-Reyes could attack that order collaterally under Men-dozar-Lopez when he was prosecuted under § 1326 if entry of the order was fundamentally unfair. See 8 U.S.C. § 1326(d). However, in these circumstances the alien must show prejudice, that is, he must show that plausible grounds of relief exist that might have been available to him. United States v. Proa-Tovar, 975 F.2d 592, 595-96 (9th Cir.1992) (en banc). Suvia-Reyes makes no such showing here. To the extent he suggests that other accouterments of due process were lacking beside judicial review, he develops no argument and offers no authority in support to show that the outcome would have been any different. Suvia-Reyes had no right to admission or to withdraw his application for admission, cf. 8 U.S.C. § 1225(a)(4); 8 C.F.R. § 235.4, and he makes no challenge to the merits of the expedited removal order. Finally, with respect to the possibility of seeking permission to withdraw his application for admission pursuant to 8 U.S.C. § 1225(a)(4) and 8 C.F.R. § 235.4, Suvia-Reyes points to nothing other than the statute itself to show any plausible basis for believing that the Attorney General would have exercised his discretion favorably to Suvia-Reyes.
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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Petition denied by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Michael Eugene Young petitions for a writ of mandamus, alleging the district court has unduly delayed acting on his motion for return of property pursuant to Fed.R.Crim.P. 41(g). He seeks an order from this court directing the district court to act. Our review of the docket sheet reveals that the district court has scheduled a hearing on Young’s motion. Accordingly, because the district court has recently acted in Young’s case, we deny the mandamus petition as moot. We grant leave to proceed in forma pauperis. 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.
PETITION DENIED.
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*744ORDER
The parties having so agreed, it is
ORDERED that the proceeding is DISMISSED under Fed. R. App. P. 42(b).
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MEMORANDUM **
Kristine Dali and Donald Crooks, Jr., represent a class (collectively “Appellants”) of unionized grocery store employees who appeal the district court’s denial of their petition for attorney’s fees following remand of the underlying lawsuit to state court. Appellants originally sued Al-bertson’s, Inc. and Ralphs Grocery Company (collectively “Employers”) for terminating their employment without adequate notice during a labor dispute. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
On prior appeal in Dall v. Albertson’s Inc., 234 Fed.Appx. 446, 447 (9th Cir.2007), we held that removal was inappropriate and sent the case back to district court for remand to the California state courts. Following remand of a case upon unsuccessful removal, the district court may, in its discretion, award attorney’s fees “incurred as a result of the removal.” 28 U.S.C. § 1447(c). “Absent unusual circumstances, courts may award attorney’s fees under § 1447(c) only where the removing party lacked an objectively reasonable basis for seeking removal. Conversely, when an objectively reasonable basis exists, fees should be denied.” Martin v. Franklin Capital Corp., 546 U.S. 132, 141, 126 S.Ct. 704, 163 L.Ed.2d 547 (2005) (citations omitted).
Employers sought removal under the Labor Management Relations Act § 301, codified at 29 U.S.C. § 185, which establishes federal jurisdiction over “[s]uits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this chapter, or between any such labor organizations.” The record supports Employers’ explanation that they reasonably believed Appellants’ “claims [were] ‘substantially dependent on analysis of a collective-bargaining agreement,’ ” in this case the Strike Settlement Agreement, which purported to release all claims by union members arising from the labor dispute. Caterpillar, Inc. v. Williams, 482 U.S. 386, 394, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987) (quoting Int’l Bhd. of Elec. Workers v. Heckler, 481 U.S. 851, 859 n. 3, 107 S.Ct. 2161, 95 L.Ed.2d 791 (1987)). The propriety of invoking § 301 jurisdiction is not an easy determination on these facts. Hence, an objectively reasonable basis existed for invoking federal jurisdiction at the time Employers sought removal.
In the alternative, Appellants argue that unusual circumstances warrant an award of fees. As the Supreme Court said in Martin: “When a court exercises its discretion [to grant fees under a finding of unusual circumstances], ... its reasons for departing from the general rule should be ‘faithful to the purposes’ of awarding fees under § 1447(c).” 546 U.S. at 141, 126 S.Ct. 704 (quoting Fogerty v. Fantasy, Inc., 510 U.S. 517, 534 n. 19, 114 S.Ct. *1611023, 127 L.Ed.2d 455 (1994)). The criminal conduct of which Appellants complain is external to the WARN Act litigation at issue here and is irrelevant to Employers’ decision to seek removal to federal court. Therefore, Martin’s unusual circumstances exception does not apply.
The district court did not abuse its discretion in denying Appellants’ request for fees.
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 ***
Plaintiff-Appellant Harold Williams appeals the dismissal of his personal injury lawsuit against Manson Construction Company (“Manson”). After the parties failed to file pretrial materials in accordance with the Local Rules, the district court, Honorable George P. Schiavelli presiding,1 issued an Order to Show Cause (“OSC”) “why the Court should not impose significant sanctions ..., including dismissal of this action.” Due to a series of mishaps, Williams’s counsel failed to file a timely response to the OSC. The district court dismissed the action for failure to prosecute. Williams then moved for relief under Federal Rule of Civil Procedure (“Rule”) 60(b), claiming excusable neglect.2 That motion was denied.
Williams appeals both the initial dismissal and the denial of relief under Rule 60(b).3 A district court’s order denying relief under Rule 60(b) is reviewed under the abuse of discretion standard. Molloy v. Wilson, 878 F.2d 313, 315 (9th Cir.1989). “A district court abuses its discretion if it does not apply the correct law, rests its decision on a clearly erroneous finding of a material fact, or applies the correct legal standard in a manner that results in an abuse of discretion.” Engleson v. Burlington N. R.R. Co., 972 F.2d 1038, 1043 (9th Cir.1992) (citing Hunt v. Nat’l Broad. Co., Inc., 872 F.2d 289, 292 (9th Cir.1989)). We have jurisdiction pursuant to 28 U.S.C. § 1291, and we reverse and remand.
Rule 60(b)(1) provides that a court may relieve a party from a final judgment on the basis of mistake, inadvertence, surprise, or excusable neglect. Excusable neglect includes negligence on the part of counsel. Briones v. Riviera Hotel & Casino, 116 F.3d 379, 381 (9th Cir.1997) (relying upon Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 394, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993)).
[D]etermination of whether neglect is excusable is an equitable one that depends on at least four factors: (1) the danger of prejudice to the opposing party; (2) the length of the delay and its potential impact on the proceedings; (3) the reason for the delay; and (4) whether the movant acted in good faith.
Bateman v. U.S. Postal Serv., 231 F.3d 1220, 1223-24 (9th Cir.2000) (citing Pioneer Inv. Servs., 507 U.S. at 395, 113 S.Ct. 1489).
The district court cited the four factors and held that the third and fourth factors weighed against a finding of excusable neglect. However, the district court failed to consider the first and second factors, noting only that prejudice might result to parties before the court on other matters. Thus, the district court failed to completely apply the correct legal standard in considering whether excusable neglect had been shown.
*163Examining all of the Pioneer factors, the record weighs in favor of granting the Rule 60(b) motion for relief. First, although we agree that counsel’s excuses for missing the deadlines are weak, we disagree with the district court’s intimation of bad faith on the part of Williams’s counsel. The statement that the court website was not operational on certain dates was based on a lack of technical information concerning the functioning of counsel’s own server, not on bad faith prevarication of counsel. As explained by the declaration of counsel’s computer technician, the problem with the server was not discovered until March 25, 2008, well after the March 12 declaration, containing the preliminary but inaccurate explanation, was provided to the court. Second, the danger of prejudice to Manson was negligible considering the fact that Manson’s counsel had also missed both filing deadlines. Third, the length of the delay was only a few days and Williams indicated on March 24, 2008, that he was fully prepared for trial on the original trial date.
In sum, because it did not fully address all of the Pioneer factors we require courts to consider, the district court abused its discretion in denying Williams’s Rule 60(b) motion for relief.
REVERSED and REMANDED.
This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3.
. Judge Schiavelli resigned from the bench effective October 5, 2008.
. The district court properly determined that Rule 54(b), the second stated basis for Williams's motion for relief, was inapplicable.
. Because we hold that the district court abused its discretion by failing to grant relief from the dismissal under Rule 60(b), we need not determine the propriety of the initial dismissal.
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ORDER
Tennison Dong’s petition for panel rehearing is granted.
The memorandum disposition filed on May 26, 2009, 330 Fed.Appx. 674, is withdrawn. A replacement memorandum disposition will be filed concurrently with this order.
Dong’s motion to file excerpts of record with his petition for panel hearing is also granted.
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MEMORANDUM *
Defendant Sheldon Cain appeals both the district court’s order denying his mo*170tion to suppress evidence and the district court’s categorization at sentencing of Cain’s previous conviction for second-degree assault as a crime of violence under the United States Sentencing Guidelines. Because the evidence at issue was seized pursuant to a lawful protective search, and because the prior conviction at issue is categorically a crime of violence, we affirm.
We review de novo both the district court’s denial of a motion to suppress incriminating evidence, United States v. By-num, 362 F.3d 574, 578 (9th Cir.2004), and its interpretation of the Sentencing Guidelines. United States v. Alexander, 287 F.3d 811, 818 (9th Cir.2002).
Although the parties spend considerable time debating whether Todd was actually driving and therefore lawfully arrested for driving on a suspended license, the point is irrelevant. In the wake of Arizona v. Gant, — U.S. —, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009), the search of the vehicle in this case cannot be justified as a search incident to arrest, whether or not Todd was lawfully arrested. After the district court ruled in this case, but prior to our review, the Supreme Court held in Gant, that a search of a vehicle incident to arrest is not appropriate where, as here, the arrestee is secured in a patrol car and it is unreasonable to expect to find evidence of the offense of arrest in the arrestee’s vehicle. 129 S.Ct. at 1719.
Gant preserved, however, the police’s authority “to search a vehicle’s passenger compartment when he has reasonable suspicion that an individual, whether or not the arrestee, is ‘dangerous’ and might access the vehicle.’” Id. at 1721 (quoting Michigan v. Long, 463 U.S. 1032, 1049, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983)). The constitutional reasonableness of traffic stops and subsequent searches depends on the objective conditions obtaining during the search, not the subjective intentions of the officer performing the search. United States v. Ibarra, 345 F.3d 711, 714 (9th Cir.2003); Whren v. United States, 517 U.S. 806, 813, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996).
Here, while Deputy Stockman’s subjective intent was to perform a search incident to arrest, which Gant subsequently forbade, conditions obtaining during the search — including the fact that both Cain and Todd were known convicted felons, the fact that Todd’s arrest was a tense affair that occurred in the early morning and in a remote location, and the likelihood that Cain would return to his vehicle after Deputy Stockman’s business was concluded— objectively justified the performance of a protective search by an officer in Deputy Stockman’s situation. Deputy Stockman’s conduct thus did not run afoul of the Fourth Amendment. We therefore affirm the district court’s denial of Cain’s suppression motion.
Finally, the district court properly categorized Cain’s prior conviction for second-degree assault in violation of Wash. Rev.Code § 9A.36.021(1)(a) as a crime of violence as set forth in the Sentencing Guidelines. U.S. Sentencing Guidelines Manual § 4B1.2(a)(1) (2008). In an ordinary case, see James v. United States, 550 U.S. 192, 207-08, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007), only an assault accompanied by force will lead to the “reckless[ ] infliction of] substantial bodily harm” required to justify a conviction under subsection (1)(a) of Washington’s second-degree assault statute. Wash. Rev.Code § 9A.36.021(1)(a). Further, only intentional assaults fall under the ambit of subsection (1)(a). Id. A conviction under Wash. Rev.Code § 9A.36.021(1)(a) is thus categorically a crime of violence. Fernandez-Ruiz v. Gonzales, 466 F.3d 1121, 1132 (9th Cir.2006) (en banc). See also United States v. Carson, 486 F.3d 618, 619 n. 2 *171(9th Cir.2007) (“We have previously held that a conviction under subsection (1)(a) of Washington’s second-degree assault statute, which makes it illegal to “[ijntentionally assault[ ] another and thereby recklessly inflict[] substantial bodily harm,” constitutes a crime of violence.”) (quoting United States v. Hermoso-Garcia, 413 F.3d 1085, 1089 (9th Cir.2005)).
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 **
Andrea Spiegler and Pnina Bouskila represent a putative class (collectively “Appellants”) of home improvement store patrons who allege they were overcharged for cabinet refacing work completed in their homes. Appellants brought this action against Home Depot U.S.A., Inc.; The Home Depot, Inc.; Expo Design Center; and Does 1-100 (collectively “Home Depot”). The district court granted Home Depot’s Federal Rule of Civil Procedure 12(b)(6) motion to dismiss for failure to state a claim. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
Appellants’ Second Amended Complaint set forth five causes of action alleging violations of California’s Unfair Competition Law and Consumers Legal Remedies Act, breaches of contract térms and implied warranties, and seeking contract reformation. The district court correctly found the contracts between Appellants and Home Depot to be fixed-price contracts and therefore did not imply a quantity term into the contracts. Pursuant to this interpretation, Appellants failed to state a claim upon which relief can be granted. The district court’s disposition in this case, Spiegler v. Home Depot U.S.A., Inc., 552 F.Supp.2d 1036 (C.D.Cal.2008), is well-reasoned and we affirm for the reasons stated within it. We agree that Appellants’ Second Amended Complaint does not plead facts sufficient to state a claim upon which relief can be granted.
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 **
Linda Hart appeals the district court’s decision affirming the Administrative Law Judge’s (“ALJ”) denial of her application for disability insurance benefits. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
The panel’s review is “essentially the same as that undertaken by the district court.” Stone v. Heckler, 761 F.2d 530, 532 (9th Cir.1985). In both cases, the court determines whether the ALJ’s decision can be supported by “substantial evidence.” Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir.2004). “Substantial evidence” is “more than a mere scintilla, but less than a preponderance.” Desrosiers v. Sec’y of Health & Human Servs., 846 F.2d 573, 576 (9th Cir.1988) (internal quotations and citations omitted).
1. The panel reviews a claimant’s testimony of medical impairment under a two-step process. First, “[t]he claimant must produce objective medical evidence of an underlying impairment ‘which could reasonably be expected to produce the pain or other symptoms alleged....’” Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir.1991) (quoting 42 U.S.C. § 423(d)(5)(A) (1988)). Second, assuming claimant produces such evidence and there is no affirmative evidence the claimant is malingering, the Commissioner must provide “clear and convincing” reasons for rejecting the testimony. Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir.1993) (quoting Swenson v. Sullivan, 876 F.2d 683, 687 (9th Cir.1989)). The record is replete with instances of Hart making misrepresentations, doctor-shopping, and drug seeking. The ALJ thus provided clear and convincing reasons for rejecting Hart’s testimony.
2. The ALJ erred by partially rejecting the testimony of Hart’s husband and sister. Though the ALJ gave their testimony “some weight,” it is clear the ALJ did not find either witness entirely credible. An ALJ may reject a lay witness testimony “only if he gives reasons germane to each witness whose testimony he rejects.” Smolen v. Chater, 80 F.3d 1273, 1288 (9th Cir.1996) (internal citation omitted). In this instance, the ALJ provided no reasons at all for giving either witness’s testimony less than full weight. Nevertheless, we find the ALJ’s error was “harmless.” Stout v. Comm’r of Soc. Sec. Admin., 454 F.3d 1050, 1054 (9th Cir.2006). Even if the court were to fully credit the testimonies of Hart’s husband and sister, the ALJ still had substantial evidence to support his finding that Hart’s impairments were not severe.
3. Substantial evidence supports the finding that Hart’s migraines were not severe. While Dr. Carlini diagnosed migraines, he made no statement about their severity. Furthermore, Hart failed to fol*178low all of Carlini’s medical advice, which undermines Hart’s claims that the migraines were severe.
4. An ALJ may reject a treating doctor’s uncontradicted opinion, only after giving “clear and convincing reasons supported by substantial evidence in the record.” Reddick v. Chater, 157 F.3d 715, 725 (9th Cir.1998) (internal quotations and citation omitted). The ALJ provided clear and convincing reasons for rejecting the testimony of Dr. Dempsey and Dr. Fiallos.
As to Dr. Dempsey (who found Hart had functional limitations), Dr. Dempsey provided his testimony on a checkbox that contained none of his rationale or explanations. More importantly, Dr. Dempsey noted that Hart’s bipolar disorder substantially improved when taking the proper medications and that Hart nonetheless stopped going to her bipolar support group.
As to Dr. Fiallos (who suggested Hart had functional limitations), his finding was based on Hart’s self report, which the ALJ properly rejected. Second, Hart’s multiple visits to doctors, providers, and support groups belie her supposed anxiety. And finally, Hart testified that she had been gardening, cooking, and fishing, all of which contradict her claims of debilitating impairments.
5. An ALJ may rely on a vocational expert’s testimony, so long as the hypothetical questions “set out all the limitations and restrictions of the particular claimant....” Magallanes v. Bowen, 881 F.2d 747, 756 (9th Cir.1989) (alterations in original) (quoting Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir.1988)). However, “the ALJ is ‘free to accept or reject these restrictions ... as long as they are supported by substantial evidence.’” Id. at 756-57 (quoting Martinez v. Heckler, 807 F.2d 771, 774 (9th Cir.1986)) (alterations in original). For the foregoing reasons, the ALJ did not err by failing to include all the limitations Hart urged to be included in the hypothetical given to the vocational expert.
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 *
Isaías Suvia-Reyes appeals the district court’s denial of his motion to dismiss the indictment charging him with illegal reentry in violation of 8 U.S.C. § 1326, and his motion for reconsideration. We affirm.
Suvia-Reyes is entitled to “some meaningful review” of his prior expedited removal order before it may be used to establish conclusively an element of his criminal offense. United States v. Mendoza-Lopez, 481 U.S. 828, 837-38, 107 S.Ct. 2148, 95 L.Ed.2d 772 (1987) (emphasis in original). As judicial review was unavailable, see 8 U.S.C. § 1225(b)(1)(A), (b)(1)(C), (b)(1)(D); 8 C.F.R. § 235.3(b)(2)(ii), and he had exhausted administrative remedies, Suvia-Reyes could attack that order collaterally under Men-dozar-Lopez when he was prosecuted under § 1326 if entry of the order was fundamentally unfair. See 8 U.S.C. § 1326(d). However, in these circumstances the alien must show prejudice, that is, he must show that plausible grounds of relief exist that might have been available to him. United States v. Proa-Tovar, 975 F.2d 592, 595-96 (9th Cir.1992) (en banc). Suvia-Reyes makes no such showing here. To the extent he suggests that other accouterments of due process were lacking beside judicial review, he develops no argument and offers no authority in support to show that the outcome would have been any different. Suvia-Reyes had no right to admission or to withdraw his application for admission, cf. 8 U.S.C. § 1225(a)(4); 8 C.F.R. § 235.4, and he makes no challenge to the merits of the expedited removal order. Finally, with respect to the possibility of seeking permission to withdraw his application for admission pursuant to 8 U.S.C. § 1225(a)(4) and 8 C.F.R. § 235.4, Suvia-Reyes points to nothing other than the statute itself to show any plausible basis for believing that the Attorney General would have exercised his discretion favorably to Suvia-Reyes.
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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ORDER
A jury found Quentin Love guilty of possession of a firearm by a felon, 18 U.S.C. § 922(g)(1), and he was sentenced to 120 months’ imprisonment. Love filed a notice of appeal, but his appointed lawyers move to withdraw because they do not believe there are any nonfrivolous arguments for appeal. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Love has filed a response opposing counsel’s motion, see Cir. R. 51(b), and he has also submitted a second document in which he asserts that counsel filed the motion without his approval. But Love’s approval was not needed, see United States v. Garcia, 35 F.3d 1125, 1132 (7th Cir.1994), and since counsel’s brief in support of the motion is facially adequate, we limit our review to the potential issues identified by Love and his counsel, see United States v. Cano-Rodriguez, 552 F.3d 637, 638 (7th Cir.2009).
Counsel and Love first evaluate whether Love could challenge the denial of *72his motion to suppress. The district court denied the motion after hearing testimony from Robert Trout, one of the police officers who arrested Love. Trout testified that at approximately 5:00 a.m. on September 19, 2007, he and another officer, driving separate vehicles, responded to a dispatch stating that a 911 caller had reported seeing a sport utility vehicle stopped at an intersection in Rockford, Illinois, and its driver sleeping. When the officers arrived at the intersection, they encountered an SUV stopped at a green traffic light. As they drew closer, however, the SUV moved through the intersection. According to Trout, the driver proceeded for a block before making a U-turn and heading back, all the while swerving across the center line. Without turning on their lights or sirens, the two officers followed the SUV into a parking lot adjacent to an auto body shop. Officer Trout recounted that he approached the SUV after it came to a stop and shined his flashlight on Love, who appeared to be asleep in the driver’s seat. After telling Love to place his hands on the steering wheel, Officer Trout saw a handgun on the front passenger’s seat. Love was then arrested.
Love did not testify at the suppression hearing, but he asserted in his motion that the two officers could not have witnessed him driving erratically because he was sleeping in the SUV at the body shop long before they were dispatched. The district court, however, credited Officer Trout’s testimony that he observed Love weaving between lanes before entering the parking lot. The court thus concluded that the officers had grounds for conducting a traffic stop.
We agree with counsel that any challenge to the district court’s ruling would be frivolous. Although the defense was able to identify minor inconsistencies in Officer Trout’s testimony, no evidence was introduced that would undermine the court’s decision to credit the officer. Love’s erratic driving gave the officers probable cause to cite him for driving on the wrong side of the roadway, see 625 III. Comp. Stat. 5/11-701, and reasonable suspicion to investigate whether he was intoxicated, see 625 III. Comp. Stat. 5/11-501. And when Trout saw the handgun in plain view, he had probable cause to arrest Love for unlawful use of a weapon. See 720 III. Comp. Stat. 5/24-l(a)(4).
Counsel next consider whether Love could argue that the government’s evidence is insufficient to support the jury’s verdict. To convict Love under § 922(g)(1), the government needed to prove that after a felony conviction he possessed a firearm or ammunition that had traveled in or affected interstate commerce. See United States v. Gilbert, 391 F.3d 882, 883 (7th Cir.2004). Only the element of possession was contested at trial.
In order to establish possession, the government had to establish that Love knowingly exercised control over the gun. See United States v. Quilling, 261 F.3d 707, 712 (7th Cir.2001). Officer Trout testified at trial that, while Love was not seen holding gun, it was visible on the passenger seat within Love’s easy reach. And both officers testified that after his arrest Love alerted them to a bag of ammunition in the center console and lamented that he “had to be drunk to leave a gun on the front seat.” Love also said, according to the officers, that they would “never guess” how he got the gun.
Love’s defense was that he went to the body shop in the early morning hours to pick up his girlfriend’s SUV and then, with the proprietor’s permission, climbed into the SUV and went to sleep in the parking lot. The proprietor of the body shop, who lives on the premises, confirmed that a *73customer had woken him before 3:00 a.m. to pay for repairs and get the keys to an SUV. The proprietor could not remember the identity of the customer but did remember that the customer had asked for permission to sleep in the parking lot. The witness did not know whether the customer had actually slept in the lot, but he did state with certainty that there was no gun on the passenger seat when he finished working on the SUV and parked the locked vehicle in the lot. Despite Love’s testimony, a rational jury could have inferred that Love brought the gun with him even if he was at the body shop to pick up his girlfriend’s vehicle, and any argument to the contrary would be frivolous.
In his Rule 51(b) response, Love has identified two possible arguments relating to the 911 call that prompted the police to investigate: that the government prejudiced his defense by failing to preserve the recording of the 911 call, and that the district court erred by not allowing trial counsel to introduce an unredacted copy of the dispatcher’s incident report. Both arguments would be frivolous.
In order to win an argument that destroying the 911 recording prejudiced his defense, Love would have to demonstrate that the government acted in bad faith — ■ that the government destroyed the recording knowing it was exculpatory — and that the recording was material to Love’s defense. See United States v. Chaparro-Alcantara, 226 F.3d 616, 624 (7th Cir.2000). Nothing in the record supports either contention. The government represented that the Rockford Police Department routinely erases 911 recordings after a period of 60 days. Love’s trial counsel never challenged that representation or offered anything more than speculation about how it might have benefited Love. Thus, any argument that the failure to preserve the 911 tape prejudiced Love would be frivolous.
As for the incident report, the defense argued that it impeached Officer Trout because the dispatcher described the sleeping driver as a white male but Love is black. The district court admitted the document after redacting identifying information about the 911 caller, details of the conversation between the caller and the dispatcher, and entries about other officers who did not respond to the 911 call. But the court was generous in admitting even a redacted copy. There is nothing in the incident report contradicting the officers’ testimony that they saw Love driving erratically and found a handgun in plain view on the passenger seat of the SUV he was driving. The 911 caller may have made a mistake about the driver’s race or the dispatcher could have entered the information incorrectly, but the discrepancy does nothing to undercut Officer Trout’s testimony that he followed Love’s vehicle from the intersection back to the body shop. Any argument that the report was relevant to an issue at trial would be frivolous.
Finally, counsel and Love propose arguing that trial counsel provided ineffective assistance. Claims about trial counsel’s performance, however, are best left to collateral proceedings, where the record can be expanded. See, e.g., United States v. Recendiz, 557 F.3d 511, 531 (7th Cir.2009).
Accordingly, we GRANT counsel’s motion to withdraw and DISMISS the appeal.
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ORDER
James King, Demarlon Lewis, and Joaquin Tankey were charged with plotting to rob a cocaine stash house which, they would later find out, did not exist. Tankey pleaded guilty, but King and Lewis were convicted after a jury trial of conspiracy and attempted possession of cocaine with intent to distribute. See 21 U.S.C. §§ 846, 841(a)(1). King also was convicted on related gun charges. He and Lewis challenge their sentences on the drug counts because, they contend, the evidence of drug quantity is too thin to sustain the prison terms they received.
The government essentially proved its case through undercover agent David Gomez, who secretly recorded a series of conversations with Tankey, King, and Lewis. Gomez was the government’s principal witness and sponsored the introduction of the recorded conversations. Neither King nor Lewis testified at trial.
The story told by Agent Gomez is that an informant pitched Tankey a plan to rob a cocaine stash house, then brokered a meeting with Gomez in his undercover capacity. Gomez told Tankey that he was a disgruntled courier for Mexican drug traffickers, who typically withheld the location of the stash houses until shortly before the time designated for picking up cocaine for delivery. The stash houses, Gomez explained to Tankey, usually held about 20 kilograms of cocaine. According to Gomez, Tankey agreed to assemble a “crew” to rob a stash house.
Agent Gomez told the jury that after Tankey recruited King he warned the two would-be robbers that the drug dealers at the stash houses were often heavily armed. Once again, he mentioned the 20-kilogram amount. Gomez offered the two men a chance to walk away, but Tankey replied that they were ready to “get down,” and King said he was “with it.” During this recorded conversation, King speculated that they would force their quarry to the ground and maybe play the “murder game” because the plan was “all or nothing.”
On the day of the planned robbery, Lewis introduced himself to Gomez, and when the agent asked if he was “cool with all this,” Lewis said he was. Gomez reiterated that 20 kilograms of cocaine were at stake, and Lewis replied, “Right.” When Gomez asked about the crew’s firepower, King answered that they were carrying “big shit and little shit.” Tankey, King, and Lewis then decided to wait and watch Gomez enter and leave the stash house to guarantee that they hit the right one. Gomez asked if they were ready, and they said yes.
Gomez took the three men to a storage locker where they were to drop off his share of the stolen cocaine. When they arrived, all three were arrested. Officers found a loaded pistol on Tankey and another gun in the men’s car.
Tankey, King, and Lewis were indicted together. Before trial, King and Lewis moved for a bill of particulars specifying whether prosecutors were accusing them of plotting to rob the stash house or- just Agent Gomez. Unless the government was forced to produce a bill of particulars, the defendants asserted, prosecutors could argue about both targets in the alternative and thus confuse the jury about the relevant drug quantity. The district court de*76cided that the indictment was sufficiently informative and denied the motion.
At trial the lawyers for King and Lewis told the jurors during opening statements that the government’s evidence would show only that the two defendants were acting tough and trying to get details about a crazy scheme, not that they had entered into an agreement to rob the stash house. During closing arguments, however, counsel suggested that, even if King and Lewis weren’t innocent, they most likely intended to steal whatever cocaine Agent Gomez picked up at a stash house and not the entire 20 kilograms inside that particular house. But King and Lewis never testified, and they never introduced any evidence suggesting that their intended target was something — or someone— other than a stash house stocked with 20 kilograms of cocaine. Neither did the defendants object to any instruction included in the district court’s charge to the jury. Nor did they propose any instruction or special verdict to clarify the intended target of the robbery. They did, however, move for a judgment of acquittal, and the district court denied that motion.
In returning verdicts of guilty on the drug counts, the jury also found that the drug crimes involved 5 or more kilograms of cocaine. That determination increased the statutory maximum term of imprisonment from 20 years to life. See 21 U.S.C. § 841(b)(1)(A), (b)(1)(C). King was sentenced to a total of 360 months’ imprisonment on the drug charges (plus a 60-month consecutive term for one of the gun violations). Lewis was sentenced to a total of 300 months.
At first blush it might seem that King and Lewis are challenging the sufficiency of the evidence underlying their drug convictions, but they are not. Instead they simply contend that the jury’s finding that their crimes involved at least 5 kilograms of cocaine is not supported by sufficient evidence. This is so, according to King and Lewis, because their plan all along was to rob Agent Gomez of whatever smaller amount of cocaine he picked up at the stash house, not to steal 20 kilograms from inside the stash house. Drug quantity is not an element of the charged crimes, so this question has no impact on the convictions. See United States v. Kelly, 519 F.3d 355, 362-63 (7th Cir.2008); United States v. Martinez, 301 F.3d 860, 865 (7th Cir.2002). But because the amount of cocaine did affect the statutory maximum penalties for both defendants, the government was required to prove the quantity to the jury beyond a reasonable doubt. See Kelly, 519 F.3d at 363.
The uncontroverted evidence revealed repeated conversations about robbing a stash house containing 20 kilograms or more of cocaine. King and Lewis’s argument has no evidentiary support; essentially, they contend that any rational juror was compelled to infer, on the basis of nothing more than counsel’s speculation, that a secret, “real” agreement necessarily lay behind the facade of the evidence the jurors actually heard. That contention is meritless — the proof that at least 5 kilograms was the target is overwhelming.
As for the bill of particulars, the district court properly exercised its discretion in denying their motion. We review the district court’s denial only for an abuse of discretion, see United States v. Hernandez, 330 F.3d 964, 975 (7th Cir.2003), so King and Lewis must show that no reasonable court could have denied their request. The test is whether the indictment, together with any discovery, sufficiently informs defendants of the charges and enables them to prepare for trial. See United States v. Fassnacht, 332 F.3d 440, 446 (7th cir.2003). King and Lewis’s motion actually outlines all the possible theories of the *77case, so they cannot claim to have been surprised with unforeseen possibilities. And although they complain that their preparation of a defense was impaired, the two defendants do not tell us what they might have done differently. They insinuate that the jury might have somehow weighed the evidence differently if a bill of particulars had been granted, but this contention does not go to the preparation of a defense.
Accordingly, in each appeal the judgment is AFFIRMED.
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ORDER
Lee Parker, an inmate at the Menard Correctional Center in Illinois, brought a pro se complaint against four employees of the Illinois Department of Corrections, claiming that they unconstitutionally deprived him of access to the courts. See 42 U.S.C. § 1983. The district court dismissed Parker’s claim against Scott Hill, a correctional officer, at initial screening, see 28 U.S.C. § 1915A, and granted the three remaining defendants summary judgment. Parker now appeals, and we affirm.
In 2004 Parker began preparing a lawsuit against 46 employees of the Department of Corrections. The complaint, which claimed financial corruption and inmate abuse, ran almost 200 pages long and contained over 300 pages of exhibits. Parker asked Colleen Rennison, the prison librarian, to make copies for all named defendants, reduce to letter size the oversized documents, supply him with forms for service of process, and bind copies of the complaints on the left margins. When she refused, noting that'the district court did not require letter-sized paper or a copy for every defendant, Parker wrote the warden, John Evans, alleging that Rennison had a “personal vendetta” against him and was “stonewalling” him. Although Evans forwarded the complaint to the library staff for review, Parker continued filing similar complaints against Rennison.
Six weeks later, on October 10, 2004, Parker again asked Rennison to make copies of his complaint and informed her that he faced an October 30 deadline. After she told him that the library was “not responsible for making copies to send to a lawyer to solicit help” on his behalf, Parker complained to Evans and other officials at the prison. Several months later, in January 2005, Parker filed with the district court several documents regarding his allegations of financial corruption and inmate abuse, but a month later, after the court treated his filing as a complaint initiating a lawsuit, Parker moved for voluntary dismissal.
The next month, in February 2005, Parker sued Rennison and Evans, claiming that they had violated his right of access to the courts by conspiring to refuse to make copies of his complaint. He later *79added Hill and Lieutenant Ronald Williams to his complaint, alleging that Williams “orchestrated” the confiscation of the lawsuit’s “master copy” from his cell while in segregation in March 2005, and that Hill retaliated against him with unwarranted discipline. The district court dismissed Parker’s claim against Hill for failure to exhaust, see 28 U.S.C. § 1915A, and then, three years later, granted the remaining three defendants’ motion for summary judgment. Rennison, the court reasoned, had no legal or constitutional obligation to copy or resize Parker’s complaint. The court added, moreover, that Parker presented no evidence that Evans had interfered with the filing of his desired lawsuit or that Williams was involved in the search of his cell.
Parker moved for reconsideration, which the district court denied on April 14, 2008. Parker filed his notice of appeal from that order on May 19. Because the notice was not filed within 30 days of the entry of the district court’s final ruling, we gave Parker the opportunity to file a notarized statement or declaration (complying with 28 U.S.C. § 1746) setting forth the date that he deposited the notice of appeal in the prison mail system and whether he paid first class postage. See Fed. R.App. P. 4(c)(1).
Parker’s response attests that he brought his notice of appeal to the legal mail room in a sealed envelope with “prepaid postage” for delivery “on or before May 14.” He also attaches a transaction report from his inmate trust fund showing a debit for “legal postage” of $0.42 (the price of first-class postage for a letter at that time) entered on May 15, 2008. The defendants argue that these statements are insufficient to satisfy the prison mailbox rule because Parker never explicitly asserted that they were made under penalty of perjury or that he prepaid his mailing with first-class postage. See id.; see also United States v. Craig, 368 F.3d 738, 740-41 (7th Cir.2004).
The information Parker provided is sufficient to satisfy the mailbox rule and allow for a timely appeal. He swore in his declaration “upon oath as true” that he placed the notice of appeal in a sealed envelope with “prepaid postage” on or before May 14. Parker’s trust fund transaction report, which shows that the next day the prison debited his account for “legal postage” in an amount equal to first-class postage, corroborates his assertion. We conclude that Parker abided by Rule 4(c)(1) and should receive its benefit, rendering this appeal timely. See Ingram v. Jones, 507 F.3d 640, 644 (7th Cir.2007).
Having jurisdiction to address Parker’s appeal, we now move to the merits. The Constitution guarantees prisoners a right of access to the courts. Lewis v. Casey, 518 U.S. 343, 350-51, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996). An inmate, though, will not have a triable claim unless he supplies evidence that prison authorities prevented him from pursuing a non-frivolous legal action. See Ortiz v. Downey, 561 F.3d 664, 671 (7th Cir.2009); Bridges v. Gilbert, 557 F.3d 541, 553 (7th Cir.2009); Christopher v. Harbury, 536 U.S. 403, 415-16, 122 S.Ct. 2179, 153 L.Ed.2d 413 (2002).
The district court was correct to reject Parker’s access-to-courts claim. Parker argues that Evans and Rennison conspired to prevent him from filing his lawsuit about financial corruption and inmate abuse. But Parker himself possessed the original, complete copy of the complaint in October 2004, which (according to him) was the deadline for filing the lawsuit. As Rennison correctly informed him, all Parker needed to do to initiate the lawsuit was present a single copy of the complaint and a filing fee (or motion to excuse payment) *80to the court clerk. See http://www.ilsd. uscourts.gov/Forms/PDF%20Forms/ProSe-Guide.pdf (last visited August 7, 2009). It was Parker’s own refusal to do so that caused the delay in filing the complaint. Moreover, Parker’s later actions call into question his unsubstantiated assertion that he in fact faced an October 30 filing deadline. In November and December Parker continued demanding that Rennison copy and resize his legal documents. And in January 2005 he filed documents in the district court initiating his lawsuit about financial corruption and inmate abuse, but chose to abandon the case himself. For all these reasons, Parker’s access-to-courts claim fails. See, e.g., Christopher, 536 U.S. at 415-16, 122 S.Ct. 2179; Lewis, 518 U.S. at 351-52, 116 S.Ct. 2174.
Finally, Parker’s claims against both Hill and Williams also do not survive summary judgment. Parker cites no evidence that Williams was involved in or ordered the search of his cell that allegedly led to the confiscation of his complaint. Without evidence of personal involvement, any claim against Williams is baseless. See, e.g., Fillmore v. Page, 358 F.3d 496, 506 (7th Cir.2004). And Parker gives us no reason to alter the district court’s decision to dismiss Hill from the lawsuit at initial screening for failure to exhaust.
Accordingly, the judgment of the district court is AFFIRMED.
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ORDER
Marvin Hamilton and several other men worked together to obtain powder cocaine and “cook” it into crack for resale. The conspiracy came to an abrupt conclusion when two of Hamilton’s coconspirators were pulled over for a traffic offense with over 200 grams of crack in their car. Hamilton was convicted after a jury trial of conspiracy to possess, and possession with intent to distribute, crack cocaine. See 21 U.S.C. §§ 846, 841(a)(1). Because *81of the amount of crack and Hamilton’s prior felony drug conviction, he faced a 20-year minimum prison term on each count. See id. § 841(b)(1)(A). The district court calculated a guidelines imprisonment range of 324 to 450 months but imposed the minimum term on both counts, to run concurrently. Hamilton filed a notice of appeal, but his appointed counsel has moved to withdraw because she cannot discern a nonfrivolous basis for appeal. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Hamilton has not responded to our invitation to comment on counsel’s motion. See CIR. R. 51(b). Our review is confined to the potential issues identified in counsel’s facially adequate supporting brief. See United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir.2002).
All three of Hamilton’s coconspirators testified against him at trial, and counsel perceives no possible claims concerning Hamilton’s convictions. Instead she focuses on possible arguments about Hamilton’s sentence. Counsel first considers whether Hamilton could challenge the district court’s addition of two offense levels for his role in the charged conspiracy. See U.S.S.G. § 3Bl.l(c). As the district court noted, Hamilton merely recruited a fellow conspirator to purchase supplies and provide the premises where they “cooked” powder cocaine into crack. So, there is little evidence to support a leadership enhancement. However, as counsel points out, even if Hamilton could successfully challenge the § 3B 1.1(c) increase, he would still be subject to the 20-year statutory minimum on each count given the amount of crack involved and his prior felony drug - conviction. See 21 U.S.C. § 841(b)(1)(A); United States v. Duncan, 479 F.3d 924, 930 (7th Cir.2007). So, any error in the guidelines calculation would be harmless and would not alter his sentence.
Counsel also considers whether Hamilton could argue that the district court erred in calculating the quantity of crack attributed to him. The court relied on the facts recounted in the presentence report by the probation officer, who estimated that Hamilton had manufactured at least 700 grams of crack with his coconspirators. The probation officer also recounted that Hamilton had sold at least 250 grams of crack and purchased at least 350 grams. Consequently, the court’s conservative finding that Hamilton was tied to at least 500 grams is supported by ample evidence, and any contrary argument would be frivolous. See, e.g., United States v. Fuller, 532 F.3d 656, 666 (7th Cir.2008). Again, though, the guidelines calculation is insignificant, since even 50 grams of crack was enough to trigger the mandatory terms that Hamilton received. See 21 U.S.C. § 841(b)(1)(A).
Accordingly, the motion to withdraw is GRANTED, and the appeal is DISMISSED.
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MEMORANDUM *
This appeal involves antitrust challenges to three of Tyco’s business practices in the pulse oximetry market: (1) sole source agreements, (2) market share discounts, and (3) bundled discounts. Masimo appeals the district court’s decision to vacate the jury’s liability verdict insofar as it related to Tyco’s bundling agreements. Alternatively, Masimo argues it is entitled to a new trial to prove Tyco’s bundling practices fail the discount attribution test established by this court in Cascade Health Solutions v. PeaceHealth, 515 F.3d 883 (9th Cir.2008). Masimo also appeals the district court’s decision to limit damages to pre-July 2001 and its decision to deny Masimo’s motion for a permanent injunction. Tyco crossappeals, arguing it is entitled to JMOL on all claims. Tyco also appeals the district court’s decision granting Masimo damages for lost sensors after July 2001. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
First, the district court did not err in vacating the jury’s verdict regarding Tyco’s bundling agreements under § 2 of the Sherman Act. The Supreme Court’s reasoning in Brooke Grp. Ltd. v. Brown & Williamson Tobacco Corp., 509 U.S. 209, 113 S.Ct. 2578, 125 L.Ed.2d 168 (1993), *97“show[s] a measured concern to leave unhampered pricing practices that might benefit consumers, absent the clearest showing that an injury to the competitive process will result.” PeaceHealth, 515 F.3d at 902. The exclusionary conduct element of a § 2 claim therefore “cannot be satisfied by reference to bundled discounts unless the discounts result in prices that are below an appropriate measure of the defendant’s costs.” Id. at 903. Because Masimo did not allege anticompetitive tying or pricing, Tyco’s bundled discounts cannot, as a matter of law, violate § 2. See id.
Despite the fact that this court has held that bundled discounts may not be considered exclusionary conduct unless they fail the discount attribution test, PeaceHealth, 515 F.3d at 895, 909 (“the only bundled discounts condemned as exclusionary are those that would exclude an equally efficient producer of the competitive products or products”), PeaceHealth did leave open the possibility that application of the discount attribution test may be inappropriate “ ‘outside the bundled pricing context, for example in tying or exclusive dealing cases.’ ” See id. at 916 n. 27 (quoting Antitrust Modernization Comm’n, Report and Recommendations 97, 114 n.157 (2007)). This is the linchpin of Masimo’s bundling argument on appeal — that Tyco’s bundling practices were actually illegal market-share discounts, rather than general bundled discounts.
There is truth to Masimo’s argument. Tyco’s bundling contracts gave customers a price discount for purchasing a number of unrelated products together, one being pulse oximetry. However, receipt of the discount was conditioned upon customers purchasing 90-95% of their requirements of those products from Tyco. If a customer bought less than the required minimum, the discounts would be lost or decreased. That is conditioning the discount on the requirement of near complete exclusivity. This effectively prevents customers from dealing in the goods of competitors, if the customers want to obtain Tyco’s discount. That is the hallmark of exclusive dealing.
Nonetheless, even if the jury could have concluded that certain bundling contracts were exclusive dealing arrangements (rather than general bundled discounts or tying arrangements), the jury’s liability verdicts cannot be sustained. As the district court determined, the evidence in the trial record concerning the pervasiveness and effects of Tyco’s varied bundling arrangements was insufficient to support a finding that the arrangements foreclosed competition in a substantial share of the relevant market. Tampa Elec. Co. v. Nashville Coal Co., 365 U.S. 320, 327, 81 S.Ct. 623, 5 L.Ed.2d 580 (1961); United States v. Microsoft Corp., 253 F.3d 34, 69 (D.C.Cir.2001); Omega Envtl., Inc. v. Gilbarco, Inc., 127 F.3d 1157, 1162-63 (9th Cir.1997). We therefore affirm the district court’s judgment vacating the jury’s liability verdicts insofar as they related to Tyco’s bundling practices.
Furthermore, because Masimo chose to proceed on a single theory of liability regarding Tyco’s bundling arrangements, it is not now entitled to a new trial of the issue on a different theory. Zhang v. American Gem Seafoods, Inc., 339 F.3d 1020, 1028-29 (9th Cir.2003) (“The failure to raise [an] issue prior to the return of the verdict results in a complete waiver, precluding our consideration of the merits of the issue.”). Therefore, the district court did not abuse its discretion in denying Masimo’s motion for a new trial.
Additionally, the district court properly determined that a reasonable jury, based on the evidence offered at trial, could have concluded Tyco’s sole source and market share agreements violated the *98antitrust laws. On appeal, both parties offered the same evidence that had been presented to the jury and reviewed by the district court. None of the reasons proffered by Tyco on appeal compels reversal of the jury’s verdict; we therefore affirm. See Johnson v. Paradise Valley Unified School Dist., 251 F.3d 1222, 1226-27 (9th Cir.2001) (In determining whether a jury verdict is supported by substantial evidence, a court must not weigh the evidence, but should simply ask whether the plaintiff has presented sufficient evidence to support the jury’s conclusion).
Next, the district court properly determined, also based on the evidence offered at trial, that all harm incurred by Masimo on account of Tyco’s anticompetitive conduct occurred before July 2001. The district court’s adherence to the July 2001 cutoff date does not “absolute[ly]” lack evidentiary support. Merrick v. Paul Revere Life Ins. Co., 500 F.3d 1007, 1013 (9th Cir.2007) (denial of new trial is entitled to “great deference” and should be reversed only “where there is an absolute absence of evidence ” supporting the verdict (emphasis in original)). Rather, the district court affirmed the jury’s July 2001 damages cutoff on the basis of evidence offered at trial and, more importantly, on Masimo’s own words that “the period between 1998 and 2001” was the period “when all harm was done to us.” Therefore, the district court did not abuse its discretion in denying Masimo a new trial on damages.
In calculating damages, the district court gave deference to the jury finding of no post-July 2001 damages, yet appeared to award some post-July 2001 damages. Although seemingly inconsistent with the jury’s finding, this additional damage award was not error. The district court merely concluded that Masimo should receive damages associated with monitor sales lost pre-July 2001 as a result of Tyco’s anticompetitive conduct (consistent with the jury’s finding) which consequently includes the flow of lost sensor sales stemming from the lifespan (post-July 2001) of such monitors. Because of this installed base of Tyco monitors, the district court correctly determined that a hard stop on damages would prematurely cut off Masimo’s damages. Further, because Masimo offered unreasonable models for calculating damages, it was not clear error for the district court to adopt Tyco’s model, the only reasonable alternative, as its basis for calculating damages. Shimko v. Guenther, 505 F.3d 987, 990 (9th Cir.2007) (the district court’s determinations, as finder of fact, are subject to the clear error standard).
Finally, the district court did not abuse its discretion when it determined, based on the evidence offered at trial, that harm to Masimo had ceased by July 2001 and, as a result, Masimo was not suffering, or likely to suffer, antitrust injury from Tyco’s anti-competitive conduct. See Ting v. AT & T, 319 F.3d 1126, 1134-35 (9th Cir.2003).
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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BEA, Circuit Judge,
concurring in part and concurring in the judgment.
I concur in the result, and with the majority’s reasoning except for the way in which the majority affirms the district court’s grant of judgment as a matter of law (“JMOL”) to Tyco on Masimo’s bundling claim.
I agree that bundled discounts are not per se illegal so long as, after applying the discount-attribution test, the discounted price is above cost. Cascade Health Solutions v. PeaceHealth, 502 F.3d 895 (9th Cir.2007), amended 515 F.3d 883 (9th Cir.2008). I also think that Tyco’s “bundled discounts” were multi-product market-*99share discounts, because a condition of obtaining such “bundled discounts” was that Tyco’s customers had to purchase 90-95% of their requirements of those products from Tyco. Therefore, this is a case where the PeaceHealth standard should not apply because we stated in that ease that the test would be inappropriate “outside the bundled pricing context, for example in tying or exclusive dealing cases.” Id. at 916 n. 27.
I would conclude, however, that we must nonetheless affirm the district court’s grant of JMOL to Tyco on Masimo’s claim Tyco’s bundling contracts amounted to exclusive dealing because Masimo waived the argument that Tyco’s bundling agreements should be treated as market-share discounts. Masimo’s theory at trial was that bundling itself, i.e., the act of conditioning a discount on the requirement that a customer purchase two of a seller’s products together, was a form of exclusive dealing. This is evidenced by the jury instruction Masimo submitted, which stated:
To prevail on its monopolization claim, Masimo must prove Tyco engaged in anticompetitive or exclusionary conduct. ... Specifically, Masimo claims that Tyco:
(1) Entered into product bundling contracts that condition the receipt of rebates or discounts on purchasing both oximetry products and other unrelated products;
(2) Entered in to market-share based compliance pricing contracts that condition the receipt of rebates, prices or discounts on purchasing specified percentages of oximetry products from Tyco.
(emphasis added). The jury instructions allowed the jury to consider the exclusionary effect of market-share discounts only insofar as those discounts applied to single-product oximetry contracts. Masimo’s theory with respect to the multi-product contracts was that the bundling itself was exclusionary.
Because Masimo waived the argument that Tyco’s multi-product contracts are invalid as exclusive market-share discounts, I would conclude we can consider only whether the bundling aspects of Tyco’s multi-product contracts are valid or invalid. The effect of the market-share requirement as a condition of taking the “bundled discount” can be disregarded. As a result, because Masimo never argued Tyco’s bundling resulted in below-cost pricing, it has failed under PeaceHealth to establish such bundling violates the antitrust laws.
The majority reaches the same result but for what I see as the wrong reason. The majority concludes that the district court correctly held that there was insufficient evidence to support the jury’s liability verdict that Tyco’s bundling contracts constituted exclusive dealing arrangements, because Masimo had not shown the bundling arrangements foreclosed competition in a substantial share of the relevant market. Maj. Op. at 97. However, the district court based this conclusion on the fact that some of Tyco’s bundling contracts included products from manufacturers other than Tyco, and therefore, “it was impossible for the jury to determine, even in general terms, how much of the bundled oximetry sales were sold in connection with anti-competitive bundling practices as compared to legal bundling practices.” ER 39, 43. If the bundled discount included products from Tyco and another manufacturer, the element of exclusivity in the bundled discount was gone. Tyco did not offer the discount conditioned on the requirement that the consumer not deal in the goods of a competitor, and therefore those contracts could not constitute exclusive dealing arrangements.
*100That means the district court’s conclusion applies only with respect to the theory that bundling itself is a form of exclusive dealing, a theory that no longer holds water after PeaceHealth. Thus, the majority errs when it affirms on this analysis.
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MEMORANDUM **
Catherine Mays (Mays) appeals the district court’s grant of summary judgment in favor of King County on her Title VII and Washington Law Against Discrimination claims.
Reviewing de novo, see Porter v. Cal. Dep’t of Corr., 419 F.3d 885, 891 (9th Cir.2005), as amended, we conclude that Mays *181failed to raise a material issue of fact regarding the existence of a hostile work environment.
King County disciplined the offending inmate after each incident, increasing the severity of the punishments accordingly, and Mays was previously unaware of harassment directed toward other individuals in the workplace. See Brooks v. City of San Mateo, 229 F.3d 917, 924 (9th Cir.2000) (affirming district court’s grant of summary judgment where the Plaintiff was unaware of other harassment victims); cf. Ellison v. Brady, 924 F.2d 872, 882-83 (9th Cir.1991) (concluding that a genuine issue of fact existed whether employer properly disciplined the harassing co-worker).
The district court did not abuse its discretion when it excluded Officer Cercenia’s report and testimony of past misconduct. See Block v. City of Los Angeles, 253 F.3d 410, 419 (9th Cir.2001) (concluding that the district court abused its discretion in relying on affidavit which was “inadequate under Rule 56(e),” “[n]ot made on personal knowledge,” and “based on inadmissible hearsay”) (citation omitted).
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 ***
Marilyn Howell appeals the district court’s decision affirming the Administrative Law Judge’s (“ALJ”) denial of her application for disability insurance benefits. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
The panel’s review is “essentially the same as that undertaken by the district court.” Stone v. Heckler, 761 F.2d 530, 532 (9th Cir.1985). In both cases, the court determines whether the ALJ’s decision can be supported by “substantial evidence.” Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir.2004). “Substantial evidence” is “more than a mere scintilla, but less than a preponderance.” Desrosiers v. Sec’y of Health & Human Servs., 846 F.2d 573, 576 (9th Cir.1988) (internal quotations and citations omitted).
1. Substantial evidence supports the finding that Howell had no severe *184mental impairments. Howell did not visit a doctor regarding her mental impairments until two years after she claims they began. In September 2002, Dr. Tester found Howell’s depression was under “good control.” In 2004, Dr. Cole, though diagnosing Howell with depression, pain disorder, and anxiety disorder, found she was nonetheless “able to sustain simple routine tasks, and no problems completing simple multiple-step task were observed.” A state agency psychologist, Robert Henry, Ph.D., found that “[although [Howell] has symptoms consistent with depression, there is no significant limitations to her functioning[.][sic]” Finally, Howell consistently neglected to mention her mental impairments during her visits to the doctor, which contradicts her present claims of severe, debilitating impairments.
2. Substantial evidence supports the finding that Howell’s sleep apnea was not severe. Howell made only scattered and vague references about a sleeping problem to her physicians. More importantly, Howell told her physicians she was using various prescribed methods to prevent her sleep apnea.
3. An ALJ may reject a treating doctor’s uncontradicted opinion, only after giving “clear and convincing reasons supported by substantial evidence in the record.” Reddick v. Chater, 157 F.3d 715, 725 (9th Cir.1998) (internal quotations and citation omitted). Assuming Dr. Miller was a treating physician, the ALJ did not err, because he provided clear and convincing reasons for not fully accepting Dr. Miller’s opinion. Dr. Miller saw Howell on only two occasions, and Dr. Miller did not assess Howell’s functional limitations until a month after his last visit with her. Second, despite Dr. Miller’s assessment of serious functional limitations, Dr. Miller “did not check off any limitations in the claimant’s ability to lift or carry.” Third, there were contradictions in Dr. Miller’s assessments. Dr. Miller found Howell entirely unremarkable after giving her a routine “well woman” examination in April 2006. Yet, in October 2006 (and not immediately after any physical examination of Howell), Dr. Miller determined she had serious functional limitations.
Howell argues that the ALJ rejected Dr. Miller’s opinion, because it was provided on a “fill-in-the-blank” form. An ALJ ought not dismiss a treating physician’s testimony merely because it was contained on such a form. Physicians often use these forms for litigation purposes, and, in some cases, the Social Security Administration requires such “check off’ forms to be used. Nevertheless, for the reasons given above, the ALJ had enough evidence to reject Dr. Miller’s testimony. Thus, any error the ALJ committed was “harmless.” Stout v. Comm’r of Soc. Sec. Admin., 454 F.3d 1050, 1054 (9th Cir.2006).
4. This court reviews a claimant’s testimony of medical impairment under a two-step process. First, “[t]he claimant must produce objective medical evidence of an underlying impairment ‘which could reasonably be expected to produce the pain or other symptoms alleged....’” Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir.1991) (quoting 42 U.S.C. § 423(d)(5)(A) (1988)). Second, assuming the claimant produces such evidence and there is no affirmative evidence the claimant is malingering, the Commissioner must provide “clear and convincing reasons” for rejecting the testimony. Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir.1993) (quoting Swenson v. Sullivan, 876 F.2d 683, 687 (9th Cir.1989)). The ALJ did not err, because he provided clear and convincing reasons for rejecting Howell’s testimony. Howell’s “treatment has been essentially *185routine and/or conservative in nature, and has been generally successful in controlling those symptoms.” Howell had only taken non-prescription pain medications to control her symptoms, and Howell’s wrists were dramatically improving after using wrist splints. See Tidwell v. Apfel, 161 F.3d 599, 602 (9th Cir.1998) (suggesting the use of non-prescription medication could weigh against a party’s testimony that her pain was debilitating). Howell frequently made no complaints about any particular pains or impairments to her physicians, which contrasts with Howell’s present claim of ongoing, disabling symptoms. Most importantly, Howell reported that she had been doing heavy lifting, carrying her sewing machine, crocheting, knitting, gardening, driving a car, using mass transportation, attending church once a week, and doing photography. She also reported she delivers Meals on Wheels every Friday, that she is on the administrative counsel for the Senior Center, and that she had been working on a ranch feeding animals and maintaining the premises. All of these activities undermined her claims of debilitating impairments.
5. The ALJ erred by rejecting the testimony of Howell’s friend, William Currier. An ALJ may reject a lay witness testimony “only if he gives reasons germane to each witness whose testimony he rejects.” Smolen v. Chater, 80 F.3d 1273, 1288 (9th Cir.1996) (internal citation omitted). In his findings, the ALJ did not mention the testimony of Mr. Currier and thus gave no reasons for rejecting it. Nevertheless, we find the ALJ’s error was “harmless.” Stout, 454 F.3d at 1054. Even if the court were to fully credit the testimony of William Currier, the ALJ nonetheless had substantial evidence to support his finding that Howell did not have severe functional limitations.
6. The determination (1) of Howell’s residual functional capacity and (2) that Howell could perform her past relevant work is supported by substantial evidence. The ALJ relied on Howell’s lack of credibility, her ongoing schedule of physically and socially demanding activities, the unreliability of Dr. Miller’s opinion in formulating Howell’s residual functional capacity, and the vocational expert’s testimony, which concluded that Howell could perform her past relevant work.
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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*187MEMORANDUM *
A jury awarded appellant Lynn Noyes $647,174.00 in compensatory damages and $5.9 million in punitive damages in her action against Kelly Services. The district court reduced the jury’s punitive damage award from a ratio of 9.1-to-l to a ratio of 1-to-l. In her appeal, Noyes seeks a higher ratio of punitive damages, and in its cross-appeal, Kelly seeks punitive damages reduced or stricken in their entirety. Kelly further seeks a new trial on the merits, contending the district court abused its discretion in refusing to admit letters favorable to Kelly from the California Department of Fair Employment and Housing.
The district court did not err in reducing the jury’s award of punitive damages. “[T]he most important indicium of the reasonableness of a punitive damages award is the degree of reprehensibility of the defendant’s conduct.” State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 419, 123 S.Ct. 1513, 155 L.Ed.2d 585 (2003) (quoting BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 575, 116 S.Ct. 1589, 134 L.Ed.2d 809 (1996)). To determine reprehensibility, we consider whether the following aggravating factors are present: (1) “the harm caused was physical as opposed to economic”; (2) “the tortious conduct evinced an indifference to or a reckless disregard of the health or safety of others”; (3) “the target of the conduct had financial vulnerability”; (4) “the conduct involved repeated actions or was an isolated incident”; and (5) “the harm was the result of intentional malice, trickery, or deceit, or mere accident.” Id.
Here, each of the last three factors is present, but none to a particularly significant degree. Our analysis of these factors in an individual case is highly fact-specific; as is our assessment of the egregiousness of the defendant’s actions. Punitive damages should be no higher than is necessary to deter and punish a defendant for egregious behavior. See id. “[O]ur goal is to determine whether the punitive damages achieved their ultimate objectives of deterrence and punishment.” S. Union Co. v. Irvin, 563 F.3d 788, 791 (9th Cir.2009). Given the modest reprehensibility of Kelly’s conduct, the 1-to-l ratio ordered by the district court is sufficient to achieve this goal.
Kelly’s cross-appeal challenges the exclusion of two letters from the California Department of Fair Employment and Housing. The district court determined that the risk of prejudice “substantially outweighed” the probative value of the letters. See Fed.R.Evid. 403; Beachy v. Boise Cascade Corp., 191 F.3d 1010, 1015 (9th Cir.1999). Kelly contended it wanted the letters admitted for the limited purpose of justifying its conduct. To the extent that Kelly contended that the ongoing investigation justified its lack of remedial action at any time relevant to the case, the district court read to the jury a stipulation that explained the timeline of the administrative investigation. The court did not err in ruling that the letters themselves should not be disclosed to the jury. They were unduly prejudicial. As we said in Beachy, “[t]here is a much greater risk of unfair prejudice involved in introducing a final agency ruling,” because of the possibility the jury will give undue weight to that determination. 191 F.3d at 1015.
Kelly also contends that there was insufficient evidence of malice to support *188any award of punitive damages. The jury was properly instructed, however, and the arguments of the plaintiff to the jury were supported by the evidence. There is no legal support for Kelly’s argument, raised for the first time on appeal, that excessive favoritism toward one group cannot be malice against another.
Plaintiff’s counsel achieved a good result for her client in obtaining both substantial compensatory and punitive damages. Kelly now challenges the sufficiency of the evidence to support the amount of compensatory damages. The Supreme Court has held that this is not a proper argument to be raised for the first time on appeal. Unitherm Food Sys., Inc. v. Swift-Eckrich, Inc., 546 U.S. 394, 407, 126 S.Ct. 980, 163 L.Ed.2d 974 (2006).
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 **
Michael Cremin appeals the district court’s entry of judgment in favor of the McKesson Corporation Employees’ Long Term Disability Plan (the “Plan”) and Liberty Life Assurance Company of Boston (“Liberty”) in his action for long-term disability benefits under the Employee Retirement Income Security Act of 1974. The district court held that Cremin had not established his eligibility for benefits under the terms of the Plan and upheld Liberty’s decision as plan administrator to terminate his benefits. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
Background
Liberty terminated Cremin’s long-term disability benefits in 2002 and completed an administrative appeal affirming its decision later that year. Cremin then filed an action in the district court seeking reinstatement of benefits, and the district court remanded to Liberty for additional factual investigation. Liberty completed a supplemental investigation and again upheld its denial. Cremin then filed the present action. He contends that by refusing to provide him with a new administrative appeal after its decision on remand from the district court, Liberty denied him a “full and fair review” of his claim as required by 29 U.S.C. § 1133(2) (2006), and defined by 29 C.F.R. § 2560.503-1(g)(1) (1998). He also contends that the Plan documents do not establish that Liberty had discretionary authority to interpret the plan and make benefits decisions. Therefore, Cremin contends, the district court should have applied de novo review *190instead of the abuse of discretion standard recently articulated by the Supreme Court. See Metro. Life Ins. Co. v. Glenn, — U.S. —, 128 S.Ct. 2343, 171 L.Ed.2d 299 (2008).
Discussion
The issues Cremin now raises on appeal, however, were not raised before the district court “sufficiently for the trial court to rule on” them. Broad v. Sealaska Corp., 85 F.3d 422, 430 (9th Cir.1996). Therefore, they have been waived and we affirm the district court without reaching their merits. Id.
Even if we were to consider Cremin’s claims, however, we would conclude that both lack merit. Neither the plain language of 29 U.S.C. § 1133(2), requiring Liberty to provide Cremin with a “full and fair review” of his claim, nor the explanatory regulation, 29 C.F.R. § 2560.503-1(g)(1), supports his contention that he was entitled to a new administrative appeal of Liberty’s decision on remand from the district court. Cremin has not cited any case law supporting this assertion. Liberty has provided more than ample opportunities for Cremin’s claim to be reviewed.
Cremin provides no evidence in support of his other allegation that the documents in the administrative record are insufficient to establish that the Plan delegated discretion to Liberty. He merely speculates that the documents in the administrative record are possibly drafts that were never adopted at all. All of the evidence in the record, however, supports the finding that the Plan delegated its discretionary authority to Liberty. Cremin did not raise any objections to that evidence before the district court. Furthermore, Cremin conceded in his first action in 2004 that Liberty had discretionary authority to interpret the Plan. The district court did not abuse its discretion in finding that Liberty had such authority. Having so found, the district court applied the proper standard of review.
The judgment of the district court 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 *
The Equal Employment Opportunity Commission (EEOC) appeals from the district court’s summary judgment for employer TIN, Inc. (TIN) on the EEOC’s Age Discrimination in Employment Act (ADEA) claims arising out of TIN’S termination of Neal, McGraw and Vanecko. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review the district court’s summary judgment de novo, Universal Health Servs., Inc. v. Thompson, 363 F.3d 1013, 1019 (9th Cir.2004), and we reverse.
The district court properly held that the EEOC established a prima facie ease of disparate treatment under the ADEA as to Neal, McGraw and Vanecko. However, TIN argues that the EEOC did not make a showing that Neal was performing his job satisfactorily, as is required at the prima facie stage of an ADEA analysis. “The requisite degree of proof necessary to establish a prima facie case for ... ADEA claims on summary judgment is minimal and does not even need to rise to the level of a preponderance of the evidence.” Wallis v. J.R. Simplot Co., 26 F.3d 885, 889 (9th Cir.1994). The EEOC provided evidence that Neal never received a negative performance review or warning that his job was in jeopardy; that his supervisors, Garza and Mis-hurda, were satisfied with his plans for the plant; and that Garza told Neal he was satisfied with Neal’s performance. This is sufficient to satisfy the minimal burden of a prima facie case.
TIN also argues that, for all three employees, the EEOC failed to establish the last part of its prima facie case: that each was discharged under circumstances giving rise to an inference of age discrimination. This can be satisfied by showing the employee was “replaced by [a] substantially younger employee[] with equal or inferior qualifications;” but, where the employee’s job was eliminated and thus there is no “replacement,” it may also be established by “showing the employer had a continuing need for the employees’ skills and services in that their various duties were still being performed.” Diaz v. Eagle Produce Ltd. P’ship, 521 F.3d 1201, 1207-08 (9th Cir.2008) (internal citations omitted).
Here, Neal was replaced by Garza, who was substantially (15 years) younger, but TIN argues that Garza’s qualifications were not equal or inferior to Neal’s; rather, TIN urges that Garza was more qualified than Neal because (1) Garza held a higher-ranked position than Neal, in which he oversaw multiple plants instead of Neal’s one, (2) “Garza had previously been involved in saving two other unprofitable TIN plants,” while Neal had not, and (3) Garza was ultimately able to make the Phoenix plant profitable after Neal failed to do so. While Garza was higher-ranked than Neal and oversaw multiple plants, it does not necessarily follow that Garza was *193more qualified to run the Phoenix plant, which Neal had done for six years. Garza’s duties as regional director differed from those of a plant manager, and an executive is not necessarily qualified for a job merely because the position reports to him. Likewise, while the Phoenix plant became profitable after Garza took over, the fact that a facility was profitable under one manager and not another does not mean that the two managers’ qualifications differed. Finally, TIN’S assertion that Garza had “been involved in saving” two other unprofitable plants is based on Mishurda’s testimony that Garza had “turned [the Los Mochis] plant around” and “helped turn [the Imperial Valley] plant around,” and on Garza’s own description of how he “turn[ed] ... around” the Imperial Valley plant. Beyond Mishurda’s conclusory statement, there is little evidence of Garza’s success at the Los Mochis plant; and Garza admitted the Imperial Valley plant was not profitable while he was plant manager and only became profitable more than a year after he left that position. Given these facts, the EEOC raised a disputed material fact for a fact-finder to determine.
Because McGraw’s and Vanecko’s positions were eliminated, the EEOC may establish this requirement of its prima facie case by “showing the employer had a continuing need for [the employee’s] skills and services in that his various duties were still being performed.” See Wallis, 26 F.3d at 891 (internal citations omitted). McGraw’s logistics manager position was eliminated and his duties were redistributed to the production manager and sales manager. The production manager at the time, Felipe Juarez, was almost 20 years younger than McGraw, and the sales manager at the time, Martin Monkewicz, was 23 years younger. It is also undisputed that when TIN eliminated Vanecko’s plant controller position, its functions were consolidated into the regional controller position, which was held by someone 24 years Vanecko’s junior. Thus, the EEOC established the fourth requirement of its prima facie case as to McGraw and Vanecko.
The next question is whether the EEOC presented sufficient evidence that TIN’S articulated reasons for the terminations were pretextual. E.E.O.C. v. Boeing Co., 577 F.3d 1044, 1049 (9th Cir.2009). The EEOC submitted evidence that Mishurda and Garza, two supervisors with decision-making authority over Neal, McGraw and Vanecko, made comments from which a jury could find that they harbored discriminatory animus toward older workers. Regardless of whether these comments are considered direct evidence or substantial and specific indirect evidence, the EEOC has provided sufficient evidence from which a jury could find, “by a preponderance of the evidence, that age was the ‘but-for’ cause of the challenged adverse employment action[s].” See Gross v. FBL Fin. Servs., Inc., — U.S. —, 129 S.Ct. 2343, 2352, 174 L.Ed.2d 119 (2009).
Therefore, we reverse the summary judgment and remand the case to the district court for further proceedings consistent with this disposition.
REVERSED 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 **
Ismail Haidar Ahmad (“Ahmad”), Ali Haidar Ahmad (wife), Loubna Haidar Ahmad (son), and Jad Ismail Haidar Ahmad (son) (collectively “Petitioners”),1 natives and citizens of Lebanon, petition for the review of the decision of the Board of Immigration Appeals (“BIA”), adopting an Immigration Judge’s (“IJ”) denial of their request for asylum, withholding of removal and relief under the Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252.
Although Ahmad does not challenge the BIA’s finding of no past persecution, this failure does not limit our jurisdiction to consider Ahmad’s remaining claim of a well-founded fear of future persecution. See Lim v. INS, 224 F.3d 929, 936 (9th Cir.2000) (holding that unfulfilled threats may indicate a danger of future persecution, but generally do not constitute past persecution). Ahmad also does not appeal his claims for withholding of removal or relief under CAT.
The BIA found that Ahmad did not have a well-founded fear of future persecution because (1) after the Syrian army withdrew from Lebanon, there was a fundamental change in country conditions and (2)the alleged persecution by Hizballah was based upon a personal dispute with Talal Amhaz rather than on a protected ground. We grant the petition in part and deny it in part.
(1) To establish a well-founded fear of persecution, Ahmad must demonstrate both a subjective and an objective fear of persecution. See Mejia-Paiz v. INS, 111 F.3d 720, 723 (9th Cir.1997). Ahmad satisfied the subjective component by credibly testifying that he genuinely fears persecution. See id. Therefore, Ahmad needed to “‘show a good reason to fear future persecution by adducing credible, direct, and specific evidence in the record of facts that would support a reasonable fear of persecution.’” Ladha v. INS, 215 F.3d 889, 897 (9th Cir.2000) (quoting Duarte de Guinac v. INS, 179 F.3d 1156, 1159 (9th Cir.1999)), overruled on other grounds by Abebe v. Mukasey, 554 F.3d 1203, 1208 (9th Cir.2009) (en banc).
The IJ found that Ahmad did not meet the objective test, because the threats of future persecution were not serious enough. However, the BIA did not adopt this finding and did not address Ahmad’s well-founded fear of persecution. Instead the BIA found Ahmad did not have a fear future persecution because of a change in country conditions.
Our case law requires that “the BIA ... provide an ‘individualized analysis of how changed conditions will affect the specific petitioner’s situation.’ ” Lopez v. Ashcroft, 366 F.3d 799, 805 (9th Cir.2004) (quoting *196Borja v. INS, 175 F.3d 732, 738 (9th Cir.1999) (en banc)). The BIA did not apply an individual analysis. In fact, the BIA did not address the concerns of the IJ, who noted that (1) despite the withdrawal of the Syrian army, Syrian influence in Lebanon had not ceased and (2) the record evidenced that Hizballah has a close, if not unique, relationship with the Syrians. Thus, the BIA did not make an individualized analysis as to whether the changed country conditions will affect Ahmad’s specific situation. Therefore, substantial evidence does not support the BIA’s decision. Accordingly, we remand to the BIA to determine whether Ahmad has met the requirements for a well-founded fear of future persecution and, if so, to then conduct an individualized assessment of changed country conditions.
(2) Ahmad also asserts a well-founded fear of future persecution from Hizballah, due to the threats he received from Talal Amhaz, a pro-Hizballah supporter. The BIA found that Ahmad did not meet the objective prong. Substantial evidence in the record indicates that (1) the threats that Amhaz and his associates made to Ahmad were not on behalf of Hizballah, but were rather directly correlated to Amhaz’s role in the alleged murder of Ahmad’s friend; and (2) Ahmad’s dispute with Amhaz was based upon a personal dispute rather than upon a protected ground.
PETITION FOR REVIEW IS GRANTED IN PART, DENIED IN PART, AND REMANDED.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Cir. R. 36-3.
. Ahmad's family’s asylum claim is derivative to Ahmad's.
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MEMORANDUM **
Sohan Singh and his wife, Bakhash Kaur, natives and citizens of India, petition for review of an order from the Board of Immigration Appeals (“BIA”) affirming the decision of an Immigration Judge (“IJ”) denying their application for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”), based on an adverse credibility determination. We have jurisdiction under 8 U.S.C. § 1252, and we deny the petition.
Because the BIA affirmed the IJ’s decision under In re Burbano, 20 I. & N. Dec. 872, 874 (BIA 1994), we review the IJ’s decision. See Gui v. INS, 280 F.3d 1217, 1225 (9th Cir.2002). We review the IJ’s adverse credibility determination for substantial evidence and must uphold that determination “unless the evidence compels a contrary result.” Tekle v. Mukasey, 533 F.3d 1044, 1051 (9th Cir.2008) (citations omitted). In support of his claim of persecution on account of political opinion, Singh submitted a letter from his political party indicating that police had killed his brother. Yet, this letter not only contains internal inconsistencies, but also contradicts “events central to petitioner’s version of why he was persecuted and fled.” Singh v. Gonzales, 439 F.3d 1100, 1108 (9th Cir.2006). As such, “it relates to the basis for [Singh’s] alleged fear of persecution and goes to the heart of [his] claim.” Id. (internal quotation marks and citations omitted). Because the evidence does not compel a contrary result to that reached by the IJ, we conclude that the IJ’s adverse credibility determination was supported by substantial evidence. 8 U.S.C. § 1252(b)(4)(B). Accordingly, Singh’s asylum claim fails.
For the same reason, his claims for withholding and protection under CAT also must fail. See Farah v. Ashcroft, 348 F.3d 1153, 1157 (9th Cir.2003) (rejecting claims for withholding and CAT relief, which were based on the same evidence relied on for the asylum claim, where the adverse credibility determination was upheld).
The petition for review is DENIED.
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 **
Alfredo Rolando Fajardo-Alvarez, a native and citizen of Guatemala, petitions for review of the Board of Immigration Appeals’ (“BIA”) order affirming the Immi*199gration Judge’s (“IJ”) denial of his application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”).
As a general rule, we lack jurisdiction to review a final order of removal again an alien who has committed a controlled substance offense. See 8 U.S.C. § 1252(a)(2)(C). However, the BIA did not find Fajardo-Alvarez removable for having been convicted of a controlled substance offense. Instead, the BIA found him ineligible for asylum, withholding of removal, and CAT on the merits. Because the BIA did not order Fajardo-Alvarez removed based upon his offense and made a determination on the merits, we have jurisdiction to review the decision. See Unuakhaulu v. Gonzales, 416 F.3d 931, 936-37 (9th Cir.2005).
However, we lack jurisdiction to consider this petition on the merits. Fajardo-Alvarez failed to exhaust the critical issue of credibility in his appeal to the BIA, notwithstanding the IJ’s clear and unambiguous findings regarding adverse credibility. See Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir.2004). We therefore have no basis to consider Fajardo-Alvarez’s claims for asylum, withholding of removal, or CAT. See Zara v. Ashcroft, 383 F.3d 927, 931 (9th Cir.2004) (holding that petitioner’s failure to exhaust the adverse credibility finding precluded this court from having jurisdiction to consider her claims of asylum, withholding of removal, and CAT).
PETITION 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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ORDER
A jury found Quentin Love guilty of possession of a firearm by a felon, 18 U.S.C. § 922(g)(1), and he was sentenced to 120 months’ imprisonment. Love filed a notice of appeal, but his appointed lawyers move to withdraw because they do not believe there are any nonfrivolous arguments for appeal. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Love has filed a response opposing counsel’s motion, see Cir. R. 51(b), and he has also submitted a second document in which he asserts that counsel filed the motion without his approval. But Love’s approval was not needed, see United States v. Garcia, 35 F.3d 1125, 1132 (7th Cir.1994), and since counsel’s brief in support of the motion is facially adequate, we limit our review to the potential issues identified by Love and his counsel, see United States v. Cano-Rodriguez, 552 F.3d 637, 638 (7th Cir.2009).
Counsel and Love first evaluate whether Love could challenge the denial of *72his motion to suppress. The district court denied the motion after hearing testimony from Robert Trout, one of the police officers who arrested Love. Trout testified that at approximately 5:00 a.m. on September 19, 2007, he and another officer, driving separate vehicles, responded to a dispatch stating that a 911 caller had reported seeing a sport utility vehicle stopped at an intersection in Rockford, Illinois, and its driver sleeping. When the officers arrived at the intersection, they encountered an SUV stopped at a green traffic light. As they drew closer, however, the SUV moved through the intersection. According to Trout, the driver proceeded for a block before making a U-turn and heading back, all the while swerving across the center line. Without turning on their lights or sirens, the two officers followed the SUV into a parking lot adjacent to an auto body shop. Officer Trout recounted that he approached the SUV after it came to a stop and shined his flashlight on Love, who appeared to be asleep in the driver’s seat. After telling Love to place his hands on the steering wheel, Officer Trout saw a handgun on the front passenger’s seat. Love was then arrested.
Love did not testify at the suppression hearing, but he asserted in his motion that the two officers could not have witnessed him driving erratically because he was sleeping in the SUV at the body shop long before they were dispatched. The district court, however, credited Officer Trout’s testimony that he observed Love weaving between lanes before entering the parking lot. The court thus concluded that the officers had grounds for conducting a traffic stop.
We agree with counsel that any challenge to the district court’s ruling would be frivolous. Although the defense was able to identify minor inconsistencies in Officer Trout’s testimony, no evidence was introduced that would undermine the court’s decision to credit the officer. Love’s erratic driving gave the officers probable cause to cite him for driving on the wrong side of the roadway, see 625 III. Comp. Stat. 5/11-701, and reasonable suspicion to investigate whether he was intoxicated, see 625 III. Comp. Stat. 5/11-501. And when Trout saw the handgun in plain view, he had probable cause to arrest Love for unlawful use of a weapon. See 720 III. Comp. Stat. 5/24-l(a)(4).
Counsel next consider whether Love could argue that the government’s evidence is insufficient to support the jury’s verdict. To convict Love under § 922(g)(1), the government needed to prove that after a felony conviction he possessed a firearm or ammunition that had traveled in or affected interstate commerce. See United States v. Gilbert, 391 F.3d 882, 883 (7th Cir.2004). Only the element of possession was contested at trial.
In order to establish possession, the government had to establish that Love knowingly exercised control over the gun. See United States v. Quilling, 261 F.3d 707, 712 (7th Cir.2001). Officer Trout testified at trial that, while Love was not seen holding gun, it was visible on the passenger seat within Love’s easy reach. And both officers testified that after his arrest Love alerted them to a bag of ammunition in the center console and lamented that he “had to be drunk to leave a gun on the front seat.” Love also said, according to the officers, that they would “never guess” how he got the gun.
Love’s defense was that he went to the body shop in the early morning hours to pick up his girlfriend’s SUV and then, with the proprietor’s permission, climbed into the SUV and went to sleep in the parking lot. The proprietor of the body shop, who lives on the premises, confirmed that a *73customer had woken him before 3:00 a.m. to pay for repairs and get the keys to an SUV. The proprietor could not remember the identity of the customer but did remember that the customer had asked for permission to sleep in the parking lot. The witness did not know whether the customer had actually slept in the lot, but he did state with certainty that there was no gun on the passenger seat when he finished working on the SUV and parked the locked vehicle in the lot. Despite Love’s testimony, a rational jury could have inferred that Love brought the gun with him even if he was at the body shop to pick up his girlfriend’s vehicle, and any argument to the contrary would be frivolous.
In his Rule 51(b) response, Love has identified two possible arguments relating to the 911 call that prompted the police to investigate: that the government prejudiced his defense by failing to preserve the recording of the 911 call, and that the district court erred by not allowing trial counsel to introduce an unredacted copy of the dispatcher’s incident report. Both arguments would be frivolous.
In order to win an argument that destroying the 911 recording prejudiced his defense, Love would have to demonstrate that the government acted in bad faith — ■ that the government destroyed the recording knowing it was exculpatory — and that the recording was material to Love’s defense. See United States v. Chaparro-Alcantara, 226 F.3d 616, 624 (7th Cir.2000). Nothing in the record supports either contention. The government represented that the Rockford Police Department routinely erases 911 recordings after a period of 60 days. Love’s trial counsel never challenged that representation or offered anything more than speculation about how it might have benefited Love. Thus, any argument that the failure to preserve the 911 tape prejudiced Love would be frivolous.
As for the incident report, the defense argued that it impeached Officer Trout because the dispatcher described the sleeping driver as a white male but Love is black. The district court admitted the document after redacting identifying information about the 911 caller, details of the conversation between the caller and the dispatcher, and entries about other officers who did not respond to the 911 call. But the court was generous in admitting even a redacted copy. There is nothing in the incident report contradicting the officers’ testimony that they saw Love driving erratically and found a handgun in plain view on the passenger seat of the SUV he was driving. The 911 caller may have made a mistake about the driver’s race or the dispatcher could have entered the information incorrectly, but the discrepancy does nothing to undercut Officer Trout’s testimony that he followed Love’s vehicle from the intersection back to the body shop. Any argument that the report was relevant to an issue at trial would be frivolous.
Finally, counsel and Love propose arguing that trial counsel provided ineffective assistance. Claims about trial counsel’s performance, however, are best left to collateral proceedings, where the record can be expanded. See, e.g., United States v. Recendiz, 557 F.3d 511, 531 (7th Cir.2009).
Accordingly, we GRANT counsel’s motion to withdraw and DISMISS the appeal.
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ORDER
Marvin Hamilton and several other men worked together to obtain powder cocaine and “cook” it into crack for resale. The conspiracy came to an abrupt conclusion when two of Hamilton’s coconspirators were pulled over for a traffic offense with over 200 grams of crack in their car. Hamilton was convicted after a jury trial of conspiracy to possess, and possession with intent to distribute, crack cocaine. See 21 U.S.C. §§ 846, 841(a)(1). Because *81of the amount of crack and Hamilton’s prior felony drug conviction, he faced a 20-year minimum prison term on each count. See id. § 841(b)(1)(A). The district court calculated a guidelines imprisonment range of 324 to 450 months but imposed the minimum term on both counts, to run concurrently. Hamilton filed a notice of appeal, but his appointed counsel has moved to withdraw because she cannot discern a nonfrivolous basis for appeal. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Hamilton has not responded to our invitation to comment on counsel’s motion. See CIR. R. 51(b). Our review is confined to the potential issues identified in counsel’s facially adequate supporting brief. See United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir.2002).
All three of Hamilton’s coconspirators testified against him at trial, and counsel perceives no possible claims concerning Hamilton’s convictions. Instead she focuses on possible arguments about Hamilton’s sentence. Counsel first considers whether Hamilton could challenge the district court’s addition of two offense levels for his role in the charged conspiracy. See U.S.S.G. § 3Bl.l(c). As the district court noted, Hamilton merely recruited a fellow conspirator to purchase supplies and provide the premises where they “cooked” powder cocaine into crack. So, there is little evidence to support a leadership enhancement. However, as counsel points out, even if Hamilton could successfully challenge the § 3B 1.1(c) increase, he would still be subject to the 20-year statutory minimum on each count given the amount of crack involved and his prior felony drug - conviction. See 21 U.S.C. § 841(b)(1)(A); United States v. Duncan, 479 F.3d 924, 930 (7th Cir.2007). So, any error in the guidelines calculation would be harmless and would not alter his sentence.
Counsel also considers whether Hamilton could argue that the district court erred in calculating the quantity of crack attributed to him. The court relied on the facts recounted in the presentence report by the probation officer, who estimated that Hamilton had manufactured at least 700 grams of crack with his coconspirators. The probation officer also recounted that Hamilton had sold at least 250 grams of crack and purchased at least 350 grams. Consequently, the court’s conservative finding that Hamilton was tied to at least 500 grams is supported by ample evidence, and any contrary argument would be frivolous. See, e.g., United States v. Fuller, 532 F.3d 656, 666 (7th Cir.2008). Again, though, the guidelines calculation is insignificant, since even 50 grams of crack was enough to trigger the mandatory terms that Hamilton received. See 21 U.S.C. § 841(b)(1)(A).
Accordingly, the motion to withdraw is GRANTED, and the appeal is DISMISSED.
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*744ORDER
The parties having so agreed, it is
ORDERED that the proceeding is DISMISSED under Fed. R. App. P. 42(b).
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MEMORANDUM **
Catherine Mays (Mays) appeals the district court’s grant of summary judgment in favor of King County on her Title VII and Washington Law Against Discrimination claims.
Reviewing de novo, see Porter v. Cal. Dep’t of Corr., 419 F.3d 885, 891 (9th Cir.2005), as amended, we conclude that Mays *181failed to raise a material issue of fact regarding the existence of a hostile work environment.
King County disciplined the offending inmate after each incident, increasing the severity of the punishments accordingly, and Mays was previously unaware of harassment directed toward other individuals in the workplace. See Brooks v. City of San Mateo, 229 F.3d 917, 924 (9th Cir.2000) (affirming district court’s grant of summary judgment where the Plaintiff was unaware of other harassment victims); cf. Ellison v. Brady, 924 F.2d 872, 882-83 (9th Cir.1991) (concluding that a genuine issue of fact existed whether employer properly disciplined the harassing co-worker).
The district court did not abuse its discretion when it excluded Officer Cercenia’s report and testimony of past misconduct. See Block v. City of Los Angeles, 253 F.3d 410, 419 (9th Cir.2001) (concluding that the district court abused its discretion in relying on affidavit which was “inadequate under Rule 56(e),” “[n]ot made on personal knowledge,” and “based on inadmissible hearsay”) (citation omitted).
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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*187MEMORANDUM *
A jury awarded appellant Lynn Noyes $647,174.00 in compensatory damages and $5.9 million in punitive damages in her action against Kelly Services. The district court reduced the jury’s punitive damage award from a ratio of 9.1-to-l to a ratio of 1-to-l. In her appeal, Noyes seeks a higher ratio of punitive damages, and in its cross-appeal, Kelly seeks punitive damages reduced or stricken in their entirety. Kelly further seeks a new trial on the merits, contending the district court abused its discretion in refusing to admit letters favorable to Kelly from the California Department of Fair Employment and Housing.
The district court did not err in reducing the jury’s award of punitive damages. “[T]he most important indicium of the reasonableness of a punitive damages award is the degree of reprehensibility of the defendant’s conduct.” State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 419, 123 S.Ct. 1513, 155 L.Ed.2d 585 (2003) (quoting BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 575, 116 S.Ct. 1589, 134 L.Ed.2d 809 (1996)). To determine reprehensibility, we consider whether the following aggravating factors are present: (1) “the harm caused was physical as opposed to economic”; (2) “the tortious conduct evinced an indifference to or a reckless disregard of the health or safety of others”; (3) “the target of the conduct had financial vulnerability”; (4) “the conduct involved repeated actions or was an isolated incident”; and (5) “the harm was the result of intentional malice, trickery, or deceit, or mere accident.” Id.
Here, each of the last three factors is present, but none to a particularly significant degree. Our analysis of these factors in an individual case is highly fact-specific; as is our assessment of the egregiousness of the defendant’s actions. Punitive damages should be no higher than is necessary to deter and punish a defendant for egregious behavior. See id. “[O]ur goal is to determine whether the punitive damages achieved their ultimate objectives of deterrence and punishment.” S. Union Co. v. Irvin, 563 F.3d 788, 791 (9th Cir.2009). Given the modest reprehensibility of Kelly’s conduct, the 1-to-l ratio ordered by the district court is sufficient to achieve this goal.
Kelly’s cross-appeal challenges the exclusion of two letters from the California Department of Fair Employment and Housing. The district court determined that the risk of prejudice “substantially outweighed” the probative value of the letters. See Fed.R.Evid. 403; Beachy v. Boise Cascade Corp., 191 F.3d 1010, 1015 (9th Cir.1999). Kelly contended it wanted the letters admitted for the limited purpose of justifying its conduct. To the extent that Kelly contended that the ongoing investigation justified its lack of remedial action at any time relevant to the case, the district court read to the jury a stipulation that explained the timeline of the administrative investigation. The court did not err in ruling that the letters themselves should not be disclosed to the jury. They were unduly prejudicial. As we said in Beachy, “[t]here is a much greater risk of unfair prejudice involved in introducing a final agency ruling,” because of the possibility the jury will give undue weight to that determination. 191 F.3d at 1015.
Kelly also contends that there was insufficient evidence of malice to support *188any award of punitive damages. The jury was properly instructed, however, and the arguments of the plaintiff to the jury were supported by the evidence. There is no legal support for Kelly’s argument, raised for the first time on appeal, that excessive favoritism toward one group cannot be malice against another.
Plaintiff’s counsel achieved a good result for her client in obtaining both substantial compensatory and punitive damages. Kelly now challenges the sufficiency of the evidence to support the amount of compensatory damages. The Supreme Court has held that this is not a proper argument to be raised for the first time on appeal. Unitherm Food Sys., Inc. v. Swift-Eckrich, Inc., 546 U.S. 394, 407, 126 S.Ct. 980, 163 L.Ed.2d 974 (2006).
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 *
The Equal Employment Opportunity Commission (EEOC) appeals from the district court’s summary judgment for employer TIN, Inc. (TIN) on the EEOC’s Age Discrimination in Employment Act (ADEA) claims arising out of TIN’S termination of Neal, McGraw and Vanecko. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review the district court’s summary judgment de novo, Universal Health Servs., Inc. v. Thompson, 363 F.3d 1013, 1019 (9th Cir.2004), and we reverse.
The district court properly held that the EEOC established a prima facie ease of disparate treatment under the ADEA as to Neal, McGraw and Vanecko. However, TIN argues that the EEOC did not make a showing that Neal was performing his job satisfactorily, as is required at the prima facie stage of an ADEA analysis. “The requisite degree of proof necessary to establish a prima facie case for ... ADEA claims on summary judgment is minimal and does not even need to rise to the level of a preponderance of the evidence.” Wallis v. J.R. Simplot Co., 26 F.3d 885, 889 (9th Cir.1994). The EEOC provided evidence that Neal never received a negative performance review or warning that his job was in jeopardy; that his supervisors, Garza and Mis-hurda, were satisfied with his plans for the plant; and that Garza told Neal he was satisfied with Neal’s performance. This is sufficient to satisfy the minimal burden of a prima facie case.
TIN also argues that, for all three employees, the EEOC failed to establish the last part of its prima facie case: that each was discharged under circumstances giving rise to an inference of age discrimination. This can be satisfied by showing the employee was “replaced by [a] substantially younger employee[] with equal or inferior qualifications;” but, where the employee’s job was eliminated and thus there is no “replacement,” it may also be established by “showing the employer had a continuing need for the employees’ skills and services in that their various duties were still being performed.” Diaz v. Eagle Produce Ltd. P’ship, 521 F.3d 1201, 1207-08 (9th Cir.2008) (internal citations omitted).
Here, Neal was replaced by Garza, who was substantially (15 years) younger, but TIN argues that Garza’s qualifications were not equal or inferior to Neal’s; rather, TIN urges that Garza was more qualified than Neal because (1) Garza held a higher-ranked position than Neal, in which he oversaw multiple plants instead of Neal’s one, (2) “Garza had previously been involved in saving two other unprofitable TIN plants,” while Neal had not, and (3) Garza was ultimately able to make the Phoenix plant profitable after Neal failed to do so. While Garza was higher-ranked than Neal and oversaw multiple plants, it does not necessarily follow that Garza was *193more qualified to run the Phoenix plant, which Neal had done for six years. Garza’s duties as regional director differed from those of a plant manager, and an executive is not necessarily qualified for a job merely because the position reports to him. Likewise, while the Phoenix plant became profitable after Garza took over, the fact that a facility was profitable under one manager and not another does not mean that the two managers’ qualifications differed. Finally, TIN’S assertion that Garza had “been involved in saving” two other unprofitable plants is based on Mishurda’s testimony that Garza had “turned [the Los Mochis] plant around” and “helped turn [the Imperial Valley] plant around,” and on Garza’s own description of how he “turn[ed] ... around” the Imperial Valley plant. Beyond Mishurda’s conclusory statement, there is little evidence of Garza’s success at the Los Mochis plant; and Garza admitted the Imperial Valley plant was not profitable while he was plant manager and only became profitable more than a year after he left that position. Given these facts, the EEOC raised a disputed material fact for a fact-finder to determine.
Because McGraw’s and Vanecko’s positions were eliminated, the EEOC may establish this requirement of its prima facie case by “showing the employer had a continuing need for [the employee’s] skills and services in that his various duties were still being performed.” See Wallis, 26 F.3d at 891 (internal citations omitted). McGraw’s logistics manager position was eliminated and his duties were redistributed to the production manager and sales manager. The production manager at the time, Felipe Juarez, was almost 20 years younger than McGraw, and the sales manager at the time, Martin Monkewicz, was 23 years younger. It is also undisputed that when TIN eliminated Vanecko’s plant controller position, its functions were consolidated into the regional controller position, which was held by someone 24 years Vanecko’s junior. Thus, the EEOC established the fourth requirement of its prima facie case as to McGraw and Vanecko.
The next question is whether the EEOC presented sufficient evidence that TIN’S articulated reasons for the terminations were pretextual. E.E.O.C. v. Boeing Co., 577 F.3d 1044, 1049 (9th Cir.2009). The EEOC submitted evidence that Mishurda and Garza, two supervisors with decision-making authority over Neal, McGraw and Vanecko, made comments from which a jury could find that they harbored discriminatory animus toward older workers. Regardless of whether these comments are considered direct evidence or substantial and specific indirect evidence, the EEOC has provided sufficient evidence from which a jury could find, “by a preponderance of the evidence, that age was the ‘but-for’ cause of the challenged adverse employment action[s].” See Gross v. FBL Fin. Servs., Inc., — U.S. —, 129 S.Ct. 2343, 2352, 174 L.Ed.2d 119 (2009).
Therefore, we reverse the summary judgment and remand the case to the district court for further proceedings consistent with this disposition.
REVERSED 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 **
Sohan Singh and his wife, Bakhash Kaur, natives and citizens of India, petition for review of an order from the Board of Immigration Appeals (“BIA”) affirming the decision of an Immigration Judge (“IJ”) denying their application for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”), based on an adverse credibility determination. We have jurisdiction under 8 U.S.C. § 1252, and we deny the petition.
Because the BIA affirmed the IJ’s decision under In re Burbano, 20 I. & N. Dec. 872, 874 (BIA 1994), we review the IJ’s decision. See Gui v. INS, 280 F.3d 1217, 1225 (9th Cir.2002). We review the IJ’s adverse credibility determination for substantial evidence and must uphold that determination “unless the evidence compels a contrary result.” Tekle v. Mukasey, 533 F.3d 1044, 1051 (9th Cir.2008) (citations omitted). In support of his claim of persecution on account of political opinion, Singh submitted a letter from his political party indicating that police had killed his brother. Yet, this letter not only contains internal inconsistencies, but also contradicts “events central to petitioner’s version of why he was persecuted and fled.” Singh v. Gonzales, 439 F.3d 1100, 1108 (9th Cir.2006). As such, “it relates to the basis for [Singh’s] alleged fear of persecution and goes to the heart of [his] claim.” Id. (internal quotation marks and citations omitted). Because the evidence does not compel a contrary result to that reached by the IJ, we conclude that the IJ’s adverse credibility determination was supported by substantial evidence. 8 U.S.C. § 1252(b)(4)(B). Accordingly, Singh’s asylum claim fails.
For the same reason, his claims for withholding and protection under CAT also must fail. See Farah v. Ashcroft, 348 F.3d 1153, 1157 (9th Cir.2003) (rejecting claims for withholding and CAT relief, which were based on the same evidence relied on for the asylum claim, where the adverse credibility determination was upheld).
The petition for review is DENIED.
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 **
Alfredo Rolando Fajardo-Alvarez, a native and citizen of Guatemala, petitions for review of the Board of Immigration Appeals’ (“BIA”) order affirming the Immi*199gration Judge’s (“IJ”) denial of his application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”).
As a general rule, we lack jurisdiction to review a final order of removal again an alien who has committed a controlled substance offense. See 8 U.S.C. § 1252(a)(2)(C). However, the BIA did not find Fajardo-Alvarez removable for having been convicted of a controlled substance offense. Instead, the BIA found him ineligible for asylum, withholding of removal, and CAT on the merits. Because the BIA did not order Fajardo-Alvarez removed based upon his offense and made a determination on the merits, we have jurisdiction to review the decision. See Unuakhaulu v. Gonzales, 416 F.3d 931, 936-37 (9th Cir.2005).
However, we lack jurisdiction to consider this petition on the merits. Fajardo-Alvarez failed to exhaust the critical issue of credibility in his appeal to the BIA, notwithstanding the IJ’s clear and unambiguous findings regarding adverse credibility. See Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir.2004). We therefore have no basis to consider Fajardo-Alvarez’s claims for asylum, withholding of removal, or CAT. See Zara v. Ashcroft, 383 F.3d 927, 931 (9th Cir.2004) (holding that petitioner’s failure to exhaust the adverse credibility finding precluded this court from having jurisdiction to consider her claims of asylum, withholding of removal, and CAT).
PETITION 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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PER CURIAM.
Abubakarr Fofanah petitions for review of an order of the Board of Immigration Appeals (BIA) denying his April 2008 motion to reopen. After careful review, we conclude the BIA did not abuse its discretion in finding that Fofanah did not show materially changed country conditions warranting reopening. See 8 U.S.C. § 1229a(c)(7)(C)(i), (ii) (motion to reopen); Habchy v. Filip, 552 F.3d 911, 912-13 (8th *85Cir.2009) (standard of review). Accordingly, we deny the petition.
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MEMORANDUM *
This appeal involves antitrust challenges to three of Tyco’s business practices in the pulse oximetry market: (1) sole source agreements, (2) market share discounts, and (3) bundled discounts. Masimo appeals the district court’s decision to vacate the jury’s liability verdict insofar as it related to Tyco’s bundling agreements. Alternatively, Masimo argues it is entitled to a new trial to prove Tyco’s bundling practices fail the discount attribution test established by this court in Cascade Health Solutions v. PeaceHealth, 515 F.3d 883 (9th Cir.2008). Masimo also appeals the district court’s decision to limit damages to pre-July 2001 and its decision to deny Masimo’s motion for a permanent injunction. Tyco crossappeals, arguing it is entitled to JMOL on all claims. Tyco also appeals the district court’s decision granting Masimo damages for lost sensors after July 2001. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
First, the district court did not err in vacating the jury’s verdict regarding Tyco’s bundling agreements under § 2 of the Sherman Act. The Supreme Court’s reasoning in Brooke Grp. Ltd. v. Brown & Williamson Tobacco Corp., 509 U.S. 209, 113 S.Ct. 2578, 125 L.Ed.2d 168 (1993), *97“show[s] a measured concern to leave unhampered pricing practices that might benefit consumers, absent the clearest showing that an injury to the competitive process will result.” PeaceHealth, 515 F.3d at 902. The exclusionary conduct element of a § 2 claim therefore “cannot be satisfied by reference to bundled discounts unless the discounts result in prices that are below an appropriate measure of the defendant’s costs.” Id. at 903. Because Masimo did not allege anticompetitive tying or pricing, Tyco’s bundled discounts cannot, as a matter of law, violate § 2. See id.
Despite the fact that this court has held that bundled discounts may not be considered exclusionary conduct unless they fail the discount attribution test, PeaceHealth, 515 F.3d at 895, 909 (“the only bundled discounts condemned as exclusionary are those that would exclude an equally efficient producer of the competitive products or products”), PeaceHealth did leave open the possibility that application of the discount attribution test may be inappropriate “ ‘outside the bundled pricing context, for example in tying or exclusive dealing cases.’ ” See id. at 916 n. 27 (quoting Antitrust Modernization Comm’n, Report and Recommendations 97, 114 n.157 (2007)). This is the linchpin of Masimo’s bundling argument on appeal — that Tyco’s bundling practices were actually illegal market-share discounts, rather than general bundled discounts.
There is truth to Masimo’s argument. Tyco’s bundling contracts gave customers a price discount for purchasing a number of unrelated products together, one being pulse oximetry. However, receipt of the discount was conditioned upon customers purchasing 90-95% of their requirements of those products from Tyco. If a customer bought less than the required minimum, the discounts would be lost or decreased. That is conditioning the discount on the requirement of near complete exclusivity. This effectively prevents customers from dealing in the goods of competitors, if the customers want to obtain Tyco’s discount. That is the hallmark of exclusive dealing.
Nonetheless, even if the jury could have concluded that certain bundling contracts were exclusive dealing arrangements (rather than general bundled discounts or tying arrangements), the jury’s liability verdicts cannot be sustained. As the district court determined, the evidence in the trial record concerning the pervasiveness and effects of Tyco’s varied bundling arrangements was insufficient to support a finding that the arrangements foreclosed competition in a substantial share of the relevant market. Tampa Elec. Co. v. Nashville Coal Co., 365 U.S. 320, 327, 81 S.Ct. 623, 5 L.Ed.2d 580 (1961); United States v. Microsoft Corp., 253 F.3d 34, 69 (D.C.Cir.2001); Omega Envtl., Inc. v. Gilbarco, Inc., 127 F.3d 1157, 1162-63 (9th Cir.1997). We therefore affirm the district court’s judgment vacating the jury’s liability verdicts insofar as they related to Tyco’s bundling practices.
Furthermore, because Masimo chose to proceed on a single theory of liability regarding Tyco’s bundling arrangements, it is not now entitled to a new trial of the issue on a different theory. Zhang v. American Gem Seafoods, Inc., 339 F.3d 1020, 1028-29 (9th Cir.2003) (“The failure to raise [an] issue prior to the return of the verdict results in a complete waiver, precluding our consideration of the merits of the issue.”). Therefore, the district court did not abuse its discretion in denying Masimo’s motion for a new trial.
Additionally, the district court properly determined that a reasonable jury, based on the evidence offered at trial, could have concluded Tyco’s sole source and market share agreements violated the *98antitrust laws. On appeal, both parties offered the same evidence that had been presented to the jury and reviewed by the district court. None of the reasons proffered by Tyco on appeal compels reversal of the jury’s verdict; we therefore affirm. See Johnson v. Paradise Valley Unified School Dist., 251 F.3d 1222, 1226-27 (9th Cir.2001) (In determining whether a jury verdict is supported by substantial evidence, a court must not weigh the evidence, but should simply ask whether the plaintiff has presented sufficient evidence to support the jury’s conclusion).
Next, the district court properly determined, also based on the evidence offered at trial, that all harm incurred by Masimo on account of Tyco’s anticompetitive conduct occurred before July 2001. The district court’s adherence to the July 2001 cutoff date does not “absolute[ly]” lack evidentiary support. Merrick v. Paul Revere Life Ins. Co., 500 F.3d 1007, 1013 (9th Cir.2007) (denial of new trial is entitled to “great deference” and should be reversed only “where there is an absolute absence of evidence ” supporting the verdict (emphasis in original)). Rather, the district court affirmed the jury’s July 2001 damages cutoff on the basis of evidence offered at trial and, more importantly, on Masimo’s own words that “the period between 1998 and 2001” was the period “when all harm was done to us.” Therefore, the district court did not abuse its discretion in denying Masimo a new trial on damages.
In calculating damages, the district court gave deference to the jury finding of no post-July 2001 damages, yet appeared to award some post-July 2001 damages. Although seemingly inconsistent with the jury’s finding, this additional damage award was not error. The district court merely concluded that Masimo should receive damages associated with monitor sales lost pre-July 2001 as a result of Tyco’s anticompetitive conduct (consistent with the jury’s finding) which consequently includes the flow of lost sensor sales stemming from the lifespan (post-July 2001) of such monitors. Because of this installed base of Tyco monitors, the district court correctly determined that a hard stop on damages would prematurely cut off Masimo’s damages. Further, because Masimo offered unreasonable models for calculating damages, it was not clear error for the district court to adopt Tyco’s model, the only reasonable alternative, as its basis for calculating damages. Shimko v. Guenther, 505 F.3d 987, 990 (9th Cir.2007) (the district court’s determinations, as finder of fact, are subject to the clear error standard).
Finally, the district court did not abuse its discretion when it determined, based on the evidence offered at trial, that harm to Masimo had ceased by July 2001 and, as a result, Masimo was not suffering, or likely to suffer, antitrust injury from Tyco’s anti-competitive conduct. See Ting v. AT & T, 319 F.3d 1126, 1134-35 (9th Cir.2003).
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 **
Joshua Joseph Tyler appeals from the lifetime term of supervised release imposed following his guilty-plea conviction for possession of child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B). We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
Tyler contends that the district court violated Federal Rule of Criminal Procedure 32(i)(3)(B) by failing to resolve the issue of whether he was likely to reoffend after fifteen years of supervision and by failing to determine which psychological study regarding recidivism was most accurate. Because these issues do not involve factual inaccuracies, the district court did not err by failing to rule on the disputes. See United States v. Stoterau, 524 F.3d 988, 1011-12 (9th Cir.2008).
Tyler also contends that the lifetime term of supervised release is substantively unreasonable. In light of the totality of the circumstances and the 18 U.S.C. § 3553(a) sentencing factors, Tyler’s lifetime term of supervised release is not substantively unreasonable. See United States v. Daniels, 541 F.3d 915, 922-24 (9th Cir.2008).
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 **
Carroll Sievers petitions for review of the order of the Department of Labor’s Administrative Review Board (“ARB”) denying his complaint under the Whistle-blower Protection Provision of the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (“AIR 21”), 49 U.S.C. § 42121. The facts are known to the parties, and we do not repeat them here except as necessary.
I
We review the ARB’s decision pursuant to the Administrative Procedure Act (“APA”). Id. § 42121(b)(4)(A). Under the APA, “the ARB’s legal conclusions must be sustained unless they are arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, and its findings of fact must be sustained unless they are unsupported by substantial evidence in the record as a whole.” Calmat Co. v. U.S. Dep’t of Labor, 364 F.3d 1117, 1121 (9th Cir.2004) (citing 5 U.S.C. § 706(2)).
*203We review the decision of the ARB, not the decision of the Administrative Law Judge (“ALJ”), id., and we defer to the inferences that the ARB derives from the evidence, not to those of the ALJ, Mackowiak v. Univ. Nuclear Sys., Inc., 735 F.2d 1159, 1162 (9th Cir.1984).
“Substantial evidence is more than a mere scintilla. It means such relevant evidence, as a reasonable mind might accept as adequate to support a conclusion.” Maka v. United States I.N.S., 904 F.2d 1351, 1355 (9th Cir.1990) (internal quotation marks omitted). Although the evidence is susceptible to different interpretations, we “may not displace the agency’s choice between two fairly conflicting views.” Lockert v. United States Dep’t of Labor, 867 F.2d 513, 520 (9th Cir.1989).
II
The ARB concluded that Sievers failed to prove by a preponderance of the evidence that his protected activity was a contributing factor in his termination by Alaska Airlines.1
A
Lacking direct evidence of retaliation, Sievers argued to the ARB that Alaska’s proffered reason for terminating him was mere pretext.2 The ARB concluded that because the record as a whole demonstrated that Alaska terminated him for time card fraud, the tenuous circumstantial evidence of causation was insufficient to sustain his burden.
In support of Sievers’ causation argument, the ARB found that (1) there was temporal proximity between the engine vibration incident and Sievers’ termination; (2) Alaska Airlines expressed concerns about flight delays caused by the Portland maintenance department; and (3) Alaska failed to investigate Lloyd Golden’s involvement in time card padding.
However, the ARB also found that Alaska showed no retaliatory animus toward Sievers, who received an outstanding performance review after the engine vibration incident. Moreover, Alaska repeatedly warned the supervisors that time card alterations were forbidden and could lead to termination, and it even disciplined one of the managers for engaging in that practice. Despite Sievers’ claim of disparate treatment, Alaska terminated all of the supervisors who altered time cards, and Sievers makes no allegation that they also engaged in protected activity. As to the investigation in Los Angeles, the ARB identified several reasons supported by the record explaining why it was not as thorough as the one in Portland.
In light of the record as a whole, we cannot say that the ARB’s findings were inadequate to support its decision. Constrained as we are by the APA’s deferen*204tial standard of review, we hold that the decision was not arbitrary or capricious.
Ill
Accordingly, the petition for review is DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
. The ARB concluded that Sievers’ participation in the engine vibration incident in the spring of 2003 was protected activity, and Respondents conceded at oral argument that they have waived any argument to the contrary. Therefore, we assume without deciding that he engaged in protected activity. Because the ARB's decision is based on its holding that Sievers engaged in some protected activity but failed to demonstrate causation, we need not address the scope of the protected activity.
. The Supreme Court has noted that ’’[p]roof that the defendant’s explanation is unworthy of credence is simply one form of circumstantial evidence that is probative of intentional discrimination, and it may be quite persuasive.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). This court has extended this reasoning to retaliation cases. See, e.g., Hernandez v. Spacelabs Med., Inc., 343 F.3d 1107, 1113 (9th Cir.2003).
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MEMORANDUM **
Appellant Wendi Leigh Harris (Harris) challenges her conviction and sentence for *205falsely representing herself as a federal agent and detaining two individuals in violation of 18 U.S.C. § 913.
1. The indictment was sufficient, because it provided ample notice of the charges against Harris and did not allege a non-existent offense. See United States v. Awad, 551 F.3d 930, 936-37 (9th Cir.2009) (“[T]he question is not whether the indictment could have been framed in a more satisfactory manner, but whether it meets minimum constitutional standards.”) (citation omitted).
2. The district court properly denied Harris’ proffered instruction defining the term “detention,” as it was unsupported by the law and the evidence adduced at trial. See United States v. Johnson, 459 F.3d 990, 992 (9th Cir.2006) (“A criminal defendant is entitled to a proposed jury instruction only if it is supported by law and has some foundation in evidence.”) (citation and internal quotation marks omitted).
3. There was sufficient evidence supporting Harris’ conviction, because “viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime [of false impersonation of a federal agent and detaining two individuals] beyond a reasonable doubt.” United States v. Reed, 575 F.3d 900, 923 (9th Cir.2009) (citation omitted) (emphasis in the original).
4. 18 U.S.C. § 913 was not unconstitutionally vague as applied to Hai*ris, because the evidence demonstrated that Harris falsely represented herself as a federal agent and detained two victims. See United States v. Purdy, 264 F.3d 809, 811 (9th Cir.2001) (“Where, as here, a statute is challenged as unconstitutionally vague in a cause of action not involving the First Amendment, we do not consider whether the statute is unconstitutional on its face. Instead, our concern is whether the statute is impermissibly vague in the circumstances of this case.”) (citations, alteration, and internal quotation marks omitted) (emphasis in the original).
5. The imposed sentence was reasonable. The district court extensively considered the relevant factors pursuant to 18 U.S.C. § 3553(a) and the record supported the sentence. See United States v. Garro, 517 F.3d 1163, 1171-72 (9th Cir.2008).
6. The district court properly enhanced Harris’ sentence pursuant to U.S.S.G. § 2J1.4(b)(1), because Harris impersonated a federal agent for the purpose of detaining her victims. See U.S.S.G. § 2J1.4(b)(1); see also United States v. Romero, 293 F.3d 1120, 1124 (9th Cir.2002) (explaining the enhancement).
7. The district court did not err in denying Harris’ request for an acceptance of responsibility sentence adjustment, because she contested the factual allegations made by the government. See United States v. Schales, 546 F.3d 965, 976 (9th Cir.2008); see also United States v. Weiland, 420 F.3d 1062, 1080 (9th Cir.2005) (noting the rarity of a reduction when the defendant goes to trial).
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 ***
April Papen appeals the district court’s decision affirming the Administrative Law Judge’s (“ALJ”) denial of her application for disability insurance benefits and supplemental security income. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
The panel’s review is “essentially the same as that undertaken by the district court.” Stone v. Heckler, 761 F.2d 530, 532 (9th Cir.1985). In both cases, the court determines whether the ALJ’s decision is supported by “substantial evidence.” Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir.2004). “Substantial evidence” is “more than a mere scintilla, but less than a preponderance.” . Desrosiers v. Sec’y of Health & Human Servs., 846 F.2d 573, 576 (9th Cir.1988) (internal quotations and citations omitted).
1. Papen has waived her argument that the ALJ improperly rejected the testimony *207of Dr. Barlow, because she raised it for the first time on appeal. As a general rule, this court does not consider issues that were not raised before the district court. See Edlund v. Massanari, 253 F.3d 1152, 1158 (9th Cir.2001). “This circuit has recognized three exceptions to this rule: [ (1) ] in the ‘exceptional’ case in which review is necessary to prevent a miscarriage of justice or to preserve the integrity of the judicial process, [ (2) ] when a new issue arises while appeal is pending because of a change in the law, [ (3) ] or when the issue presented is purely one of law and either does not depend on the factual record developed below, or the pertinent record has been fully developed. If one of the exceptions is applicable, [this court has] discretion to address the issue.” Bolker v. Comm’r, 760 F.2d 1039, 1042 (9th Cir.1985) (internal citations omitted). There are no exceptional circumstances in Papen’s case, and Papen, therefore, waived the issue.
2. Papen waived her argument that the ALJ erred in finding that Papen’s alleged impairments (other than her obesity) did not meet or equal a listing under step three of the five step analysis (listed impairment at 20 C.F.R. pt. 404, Subpart P, Appendix 1, 1.02A). She did not properly raise the issue before the district court, and there are no exceptional circumstances to justify addressing it on appeal.
3. The ALJ properly assessed the effects Papen’s obesity had on her functional limitations. Papen’s medical records note that Papen is morbidly obese, and that the obesity affects her impairments. Drs. Harris and Westfall nevertheless found that Papen was still able to perform basic work activities despite these impairments alone, or in combination.
4. We review a claimant’s testimony of medical impairment under a two-step process. First, “[t]he claimant must produce objective medical evidence of an underlying impairment ‘which could reasonably be expected to produce the pain or other symptoms alleged....’” Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir.1991) (quoting 42 U.S.C. § 423(d)(5)(A) (1988)). Second, assuming claimant produces such evidence and there is no affirmative evidence the claimant is malingering, the Commissioner must provide “clear and convincing reasons” for rejecting the testimony. Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir.1993) (quoting Swenson v. Sullivan, 876 F.2d 683, 687 (9th Cir.1989)).
The ALJ provided clear and convincing reasons for rejecting Papen’s testimony. The medical complaints, Papen now alleges as a disability, are the same ones she had while gainfully employed. Also, Drs. Wood and Braseth noted that Papen was assisting with household chores, driving a car, and going grocery shopping. Such activities were clearly inconsistent with Papen’s testimony that she was able to walk only a few feet. Finally, Dr. Harris concluded that Papen’s “complaints of pain/discomfort are out of proportion to her objective findings.”
5. Papen waived her argument that the ALJ posed an improper hypothetical to the vocational experts. She did not raise the issue to the district court, and there are no exceptional circumstances to justify addressing it on appeal.
6. In determining residual functional capacity (“RFC”), an ALJ must consider “all of the relevant medical and other evidence,” 20 C.F.R. § 416.945(a)(3), including statements provided by medical sources and the claimant’s own reports. Id. In maldng his RFC finding, the ALJ essentially adopted the findings of Dr. Harris. Papen could occasionally lift and carry twenty-five pounds, and frequently lift and carry twenty pounds. She was limited to two hours out of eight of stand*208ing or walking. The ALJ also determined that Papen should have the option to sit or stand, and that she may be required to use a cane. The ALJ set Papen’s RFC at a sedentary exertion level. On that basis, he concluded Papen could perform her past relevant work. The vocational experts also supported that determination, testifying Papen could perform her past relevant assembly job, given her RFC.
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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*209MEMORANDUM **
Nico Courtney (“Courtney”) brought suit on a number of claims related to his resignation from the Tribal Gaming Section of the Oregon State Police. Courtney now appeals a district court order granting summary judgment to the Oregon State Police (“Appellees”) on Courtney’s claims under 42 U.S.C. § 2000e-2(a)(1), Oregon Revised Statutes §§ 659A.030 and 659A.203, and 42 U.S.C. § 1983. The parties are familiar with the facts of this case, which we repeat here only to the extent necessary to explain our decision. We review de novo a district court’s decision to grant summary judgment. Universal Health Servs., Inc. v. Thompson, 363 F.3d 1013, 1019 (9th Cir.2004). We view the evidence in the light most favorable to the nonmoving party, id., and affirm.
To survive summary judgment under 42 U.S.C. § 2000e-2(a)(1) or Oregon Revised Statutes § 659A.030(1), a plaintiff must show that
(1) he is a member of a protected class; (2) he was qualified for his position; (3) he experienced an adverse employment action; and (4) similarly situated individuals outside his protected class were treated more favorably, or other circumstances surrounding the adverse employment action give rise to an inference of discrimination.
Fonseca v. Sysco Food Servs, of Ariz., Inc., 374 F.3d 840, 847 (9th Cir.2004) (internal quotation marks omitted). Here, Courtney failed to satisfy the fourth prong of this test. Even if Courtney could establish a prima facie case of discrimination or disparate treatment, summary judgment would still be appropriate because Appellees have demonstrated a nondiscriminatory reason for each of the adverse actions. See Surrell v. Cal. Water Serv. Co., 518 F.3d 1097, 1106 (9th Cir.2008).
To prevail on his hostile work environment claim, Courtney must show that he was subjected to unwelcome conduct of a racial nature that was “sufficiently severe or pervasive to alter the conditions of the plaintiffs employment and create an abusive work environment.” Vasquez v. County of Los Angeles, 349 F.3d 634, 642 (9th Cir.2003). The abusive environment must be both objectively and subjectively offensive. Harris v. Forklift Sys., Inc., 510 U.S. 17, 21-22, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993).
Whether the conduct is sufficient to create a hostile work environment is a question of law. Fuller v. City of Oakland, 47 F.3d 1522, 1527 (9th Cir.1995). Relevant factors include the frequency and severity of the offensive conduct, whether the conduct is physical or a “mere offensive utterance,” and whether the conduct unreasonably interferes with work performance. Harris, 510 U.S. at 23, 114 S.Ct. 367. None of the conduct Courtney cites is sufficiently severe or pervasive to create a hostile work environment.
Under Oregon Revised Statutes § 659A.203(1)(b), a public employer may not take disciplinary action against an employee who discloses any information that the employee reasonably believes is evidence of A) a violation of any federal or state law, rule or regulation, or B) mismanagement, gross waste of funds, or abuse of authority. Nor may the employer discourage an employee from making such a disclosure. Or.Rev.Stat. § 659A.203(1)(d). Here, regardless of whether Courtney made any protected disclosures, he failed to show that those po*210tentially protected disclosures, made roughly one year before Courtney was ever reprimanded, were in any way connected to later disciplinary actions.
Courtney’s procedural due process claims were not presented in any detail to this court, nor do these arguments have any merit. Accordingly, we deem these arguments abandoned. See United States v. Kimble, 107 F.3d 712, 715 n. 2 (9th Cir.1997) (deeming argument abandoned where not adequately developed in appellate briefs).
Nor does Courtney’s substantive due process claim have any merit. “[TJhere is substantive due process protection against government employer actions that foreclose access to a particular profession.” Engquist v. Ore. Dep’t of Agric., 478 F.3d 985, 998 (9th Cir.2007). Such substantive due process claims are limited to “extreme cases,” such as a government blacklist. Id. at 997. Courtney does not explain what particular profession is foreclosed to him, let alone demonstrate that his is an “extreme case.”
Our equal protection analysis of Courtney’s intentional discrimination claim under 42 U.S.C. § 1983 is the same as the Title VII analysis of disparate treatment. See Lowe v. City of Monrovia, 775 F.2d 998, 1011 (9th Cir.1985) (holding that plaintiff had established a triable issue under Title VII, and therefore also established a § 1983 issue). Courtney’s equal protection claim fails for the same reasons his Title VII claim fails, as discussed above.
To survive a summary judgment motion on his remaining First Amendment claim, Courtney must show 1) that he engaged in protected speech, 2) that he suffered from an adverse employment action, and 3) that the protected speech was a “substantial or motivating factor for the adverse action.” Marable v. Nitchman, 511 F.3d 924, 929 (9th Cir.2007) (internal quotation marks omitted). “To qualify as ‘protected speech’ ..., the employee must have uttered the speech as a citizen, not an employee.” Id. (citing Garcetti v. Ceballos, 547 U.S. 410, 415-16, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006)). Whether an employee is acting under an official duty is critical to the protection analysis. Id. at 932. Here, Courtney conceded that, as a police officer, he had an official duty to report any misconduct. Furthermore, even if Courtney could make a prima facie showing of retaliation, Appellee Ragon has demonstrated that he had legitimate reasons for imposing disciplinary measures. See Roe v. City of San Diego, 356 F.3d 1108, 1112 (9th Cir.) (employer can demonstrate that he “would have reached the same decision even in the absence of the employee’s protected conduct”), rev’d on other grounds, 543 U.S. 77, 125 S.Ct. 521, 160 L.Ed.2d 410 (2004).
Accordingly, the district court’s order granting summary 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 **
Barbara Biggs appeals pro se from the district court’s judgment affirming the Commissioner of Social Security’s decision to award retirement benefits subject to the Windfall Elimination Provision, 42 U.S.C. § 415(a)(7). We will not disturb the Commissioner of Social Security’s decision unless it is not supported by substantial evidence or is based on legal error. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir.2005). The district court exercised jurisdiction under 42 U.S.C. § 405(g). We have jurisdiction under 28 U.S.C. § 1291. We affirm.
The facts of this case are known to the parties and we do not repeat them here.
Substantial evidence supports the Commissioner of Social Security’s decision to reduce Biggs’ retirement benefits pursuant to the Windfall Elimination Provision. Contrary to Biggs’ assertions, the Windfall Elimination Provision is constitutional. Das v. Dep’t of Health & Human Servs., 17 F.3d 1250, 1255 (9th Cir.1994).
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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*215MEMORANDUM **
Sergio Ramos Vicente and his wife Elvira Lopez Sanchez, natives and citizens of Mexico, petition pro se for review of the Board of Immigration Appeals’ (“BIA”) order denying their motion to reopen proceedings. We have jurisdiction under 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reopen, Malty v. Ashcroft, 381 F.3d 942, 945 (9th Cir.2004), and review de novo claims of due process violations, Colmenar v. INS, 210 F.3d 967, 971 (9th Cir.2000). We deny in part and dismiss in part the petition for review.
The BIA did not abuse its discretion in denying the motion to reopen because it considered the new evidence regarding the hardship to petitioners’ United States Citizen daughter and acted within its broad discretion in determining that the evidence was insufficient to warrant reopening. See Singh v. INS, 295 F.3d 1037, 1039 (9th Cir.2002) (The BIA’s denial of a motion to reopen shall be reversed only if it is “arbitrary, irrational, or contrary to law.”).
The evidence petitioners presented with their motion to reopen regarding the Ramos Vicente’s eye condition concerned the same basic hardship ground previously considered by the agency in connection with the denial of cancellation of removal, we lack jurisdiction to review this aspect of the denial of the motion to reopen. See Fernandez v. Gonzales, 439 F.3d 592, 602-03 (9th Cir.2006).
To the extent petitioners contend that they were prejudiced because the BIA failed to consider some or all of the evidence they submitted with the motion to reopen, they have not overcome the presumption that the BIA did review the record. See Fernandez, 439 F.3d at 603.
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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BEA, Circuit Judge,
concurring in part and concurring in the judgment.
I concur in the result, and with the majority’s reasoning except for the way in which the majority affirms the district court’s grant of judgment as a matter of law (“JMOL”) to Tyco on Masimo’s bundling claim.
I agree that bundled discounts are not per se illegal so long as, after applying the discount-attribution test, the discounted price is above cost. Cascade Health Solutions v. PeaceHealth, 502 F.3d 895 (9th Cir.2007), amended 515 F.3d 883 (9th Cir.2008). I also think that Tyco’s “bundled discounts” were multi-product market-*99share discounts, because a condition of obtaining such “bundled discounts” was that Tyco’s customers had to purchase 90-95% of their requirements of those products from Tyco. Therefore, this is a case where the PeaceHealth standard should not apply because we stated in that ease that the test would be inappropriate “outside the bundled pricing context, for example in tying or exclusive dealing cases.” Id. at 916 n. 27.
I would conclude, however, that we must nonetheless affirm the district court’s grant of JMOL to Tyco on Masimo’s claim Tyco’s bundling contracts amounted to exclusive dealing because Masimo waived the argument that Tyco’s bundling agreements should be treated as market-share discounts. Masimo’s theory at trial was that bundling itself, i.e., the act of conditioning a discount on the requirement that a customer purchase two of a seller’s products together, was a form of exclusive dealing. This is evidenced by the jury instruction Masimo submitted, which stated:
To prevail on its monopolization claim, Masimo must prove Tyco engaged in anticompetitive or exclusionary conduct. ... Specifically, Masimo claims that Tyco:
(1) Entered into product bundling contracts that condition the receipt of rebates or discounts on purchasing both oximetry products and other unrelated products;
(2) Entered in to market-share based compliance pricing contracts that condition the receipt of rebates, prices or discounts on purchasing specified percentages of oximetry products from Tyco.
(emphasis added). The jury instructions allowed the jury to consider the exclusionary effect of market-share discounts only insofar as those discounts applied to single-product oximetry contracts. Masimo’s theory with respect to the multi-product contracts was that the bundling itself was exclusionary.
Because Masimo waived the argument that Tyco’s multi-product contracts are invalid as exclusive market-share discounts, I would conclude we can consider only whether the bundling aspects of Tyco’s multi-product contracts are valid or invalid. The effect of the market-share requirement as a condition of taking the “bundled discount” can be disregarded. As a result, because Masimo never argued Tyco’s bundling resulted in below-cost pricing, it has failed under PeaceHealth to establish such bundling violates the antitrust laws.
The majority reaches the same result but for what I see as the wrong reason. The majority concludes that the district court correctly held that there was insufficient evidence to support the jury’s liability verdict that Tyco’s bundling contracts constituted exclusive dealing arrangements, because Masimo had not shown the bundling arrangements foreclosed competition in a substantial share of the relevant market. Maj. Op. at 97. However, the district court based this conclusion on the fact that some of Tyco’s bundling contracts included products from manufacturers other than Tyco, and therefore, “it was impossible for the jury to determine, even in general terms, how much of the bundled oximetry sales were sold in connection with anti-competitive bundling practices as compared to legal bundling practices.” ER 39, 43. If the bundled discount included products from Tyco and another manufacturer, the element of exclusivity in the bundled discount was gone. Tyco did not offer the discount conditioned on the requirement that the consumer not deal in the goods of a competitor, and therefore those contracts could not constitute exclusive dealing arrangements.
*100That means the district court’s conclusion applies only with respect to the theory that bundling itself is a form of exclusive dealing, a theory that no longer holds water after PeaceHealth. Thus, the majority errs when it affirms on this analysis.
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MEMORANDUM **
Joshua Joseph Tyler appeals from the lifetime term of supervised release imposed following his guilty-plea conviction for possession of child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B). We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
Tyler contends that the district court violated Federal Rule of Criminal Procedure 32(i)(3)(B) by failing to resolve the issue of whether he was likely to reoffend after fifteen years of supervision and by failing to determine which psychological study regarding recidivism was most accurate. Because these issues do not involve factual inaccuracies, the district court did not err by failing to rule on the disputes. See United States v. Stoterau, 524 F.3d 988, 1011-12 (9th Cir.2008).
Tyler also contends that the lifetime term of supervised release is substantively unreasonable. In light of the totality of the circumstances and the 18 U.S.C. § 3553(a) sentencing factors, Tyler’s lifetime term of supervised release is not substantively unreasonable. See United States v. Daniels, 541 F.3d 915, 922-24 (9th Cir.2008).
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 **
Carroll Sievers petitions for review of the order of the Department of Labor’s Administrative Review Board (“ARB”) denying his complaint under the Whistle-blower Protection Provision of the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (“AIR 21”), 49 U.S.C. § 42121. The facts are known to the parties, and we do not repeat them here except as necessary.
I
We review the ARB’s decision pursuant to the Administrative Procedure Act (“APA”). Id. § 42121(b)(4)(A). Under the APA, “the ARB’s legal conclusions must be sustained unless they are arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, and its findings of fact must be sustained unless they are unsupported by substantial evidence in the record as a whole.” Calmat Co. v. U.S. Dep’t of Labor, 364 F.3d 1117, 1121 (9th Cir.2004) (citing 5 U.S.C. § 706(2)).
*203We review the decision of the ARB, not the decision of the Administrative Law Judge (“ALJ”), id., and we defer to the inferences that the ARB derives from the evidence, not to those of the ALJ, Mackowiak v. Univ. Nuclear Sys., Inc., 735 F.2d 1159, 1162 (9th Cir.1984).
“Substantial evidence is more than a mere scintilla. It means such relevant evidence, as a reasonable mind might accept as adequate to support a conclusion.” Maka v. United States I.N.S., 904 F.2d 1351, 1355 (9th Cir.1990) (internal quotation marks omitted). Although the evidence is susceptible to different interpretations, we “may not displace the agency’s choice between two fairly conflicting views.” Lockert v. United States Dep’t of Labor, 867 F.2d 513, 520 (9th Cir.1989).
II
The ARB concluded that Sievers failed to prove by a preponderance of the evidence that his protected activity was a contributing factor in his termination by Alaska Airlines.1
A
Lacking direct evidence of retaliation, Sievers argued to the ARB that Alaska’s proffered reason for terminating him was mere pretext.2 The ARB concluded that because the record as a whole demonstrated that Alaska terminated him for time card fraud, the tenuous circumstantial evidence of causation was insufficient to sustain his burden.
In support of Sievers’ causation argument, the ARB found that (1) there was temporal proximity between the engine vibration incident and Sievers’ termination; (2) Alaska Airlines expressed concerns about flight delays caused by the Portland maintenance department; and (3) Alaska failed to investigate Lloyd Golden’s involvement in time card padding.
However, the ARB also found that Alaska showed no retaliatory animus toward Sievers, who received an outstanding performance review after the engine vibration incident. Moreover, Alaska repeatedly warned the supervisors that time card alterations were forbidden and could lead to termination, and it even disciplined one of the managers for engaging in that practice. Despite Sievers’ claim of disparate treatment, Alaska terminated all of the supervisors who altered time cards, and Sievers makes no allegation that they also engaged in protected activity. As to the investigation in Los Angeles, the ARB identified several reasons supported by the record explaining why it was not as thorough as the one in Portland.
In light of the record as a whole, we cannot say that the ARB’s findings were inadequate to support its decision. Constrained as we are by the APA’s deferen*204tial standard of review, we hold that the decision was not arbitrary or capricious.
Ill
Accordingly, the petition for review is DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
. The ARB concluded that Sievers’ participation in the engine vibration incident in the spring of 2003 was protected activity, and Respondents conceded at oral argument that they have waived any argument to the contrary. Therefore, we assume without deciding that he engaged in protected activity. Because the ARB's decision is based on its holding that Sievers engaged in some protected activity but failed to demonstrate causation, we need not address the scope of the protected activity.
. The Supreme Court has noted that ’’[p]roof that the defendant’s explanation is unworthy of credence is simply one form of circumstantial evidence that is probative of intentional discrimination, and it may be quite persuasive.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). This court has extended this reasoning to retaliation cases. See, e.g., Hernandez v. Spacelabs Med., Inc., 343 F.3d 1107, 1113 (9th Cir.2003).
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MEMORANDUM **
Appellant Wendi Leigh Harris (Harris) challenges her conviction and sentence for *205falsely representing herself as a federal agent and detaining two individuals in violation of 18 U.S.C. § 913.
1. The indictment was sufficient, because it provided ample notice of the charges against Harris and did not allege a non-existent offense. See United States v. Awad, 551 F.3d 930, 936-37 (9th Cir.2009) (“[T]he question is not whether the indictment could have been framed in a more satisfactory manner, but whether it meets minimum constitutional standards.”) (citation omitted).
2. The district court properly denied Harris’ proffered instruction defining the term “detention,” as it was unsupported by the law and the evidence adduced at trial. See United States v. Johnson, 459 F.3d 990, 992 (9th Cir.2006) (“A criminal defendant is entitled to a proposed jury instruction only if it is supported by law and has some foundation in evidence.”) (citation and internal quotation marks omitted).
3. There was sufficient evidence supporting Harris’ conviction, because “viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime [of false impersonation of a federal agent and detaining two individuals] beyond a reasonable doubt.” United States v. Reed, 575 F.3d 900, 923 (9th Cir.2009) (citation omitted) (emphasis in the original).
4. 18 U.S.C. § 913 was not unconstitutionally vague as applied to Hai*ris, because the evidence demonstrated that Harris falsely represented herself as a federal agent and detained two victims. See United States v. Purdy, 264 F.3d 809, 811 (9th Cir.2001) (“Where, as here, a statute is challenged as unconstitutionally vague in a cause of action not involving the First Amendment, we do not consider whether the statute is unconstitutional on its face. Instead, our concern is whether the statute is impermissibly vague in the circumstances of this case.”) (citations, alteration, and internal quotation marks omitted) (emphasis in the original).
5. The imposed sentence was reasonable. The district court extensively considered the relevant factors pursuant to 18 U.S.C. § 3553(a) and the record supported the sentence. See United States v. Garro, 517 F.3d 1163, 1171-72 (9th Cir.2008).
6. The district court properly enhanced Harris’ sentence pursuant to U.S.S.G. § 2J1.4(b)(1), because Harris impersonated a federal agent for the purpose of detaining her victims. See U.S.S.G. § 2J1.4(b)(1); see also United States v. Romero, 293 F.3d 1120, 1124 (9th Cir.2002) (explaining the enhancement).
7. The district court did not err in denying Harris’ request for an acceptance of responsibility sentence adjustment, because she contested the factual allegations made by the government. See United States v. Schales, 546 F.3d 965, 976 (9th Cir.2008); see also United States v. Weiland, 420 F.3d 1062, 1080 (9th Cir.2005) (noting the rarity of a reduction when the defendant goes to trial).
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 ***
April Papen appeals the district court’s decision affirming the Administrative Law Judge’s (“ALJ”) denial of her application for disability insurance benefits and supplemental security income. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
The panel’s review is “essentially the same as that undertaken by the district court.” Stone v. Heckler, 761 F.2d 530, 532 (9th Cir.1985). In both cases, the court determines whether the ALJ’s decision is supported by “substantial evidence.” Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir.2004). “Substantial evidence” is “more than a mere scintilla, but less than a preponderance.” . Desrosiers v. Sec’y of Health & Human Servs., 846 F.2d 573, 576 (9th Cir.1988) (internal quotations and citations omitted).
1. Papen has waived her argument that the ALJ improperly rejected the testimony *207of Dr. Barlow, because she raised it for the first time on appeal. As a general rule, this court does not consider issues that were not raised before the district court. See Edlund v. Massanari, 253 F.3d 1152, 1158 (9th Cir.2001). “This circuit has recognized three exceptions to this rule: [ (1) ] in the ‘exceptional’ case in which review is necessary to prevent a miscarriage of justice or to preserve the integrity of the judicial process, [ (2) ] when a new issue arises while appeal is pending because of a change in the law, [ (3) ] or when the issue presented is purely one of law and either does not depend on the factual record developed below, or the pertinent record has been fully developed. If one of the exceptions is applicable, [this court has] discretion to address the issue.” Bolker v. Comm’r, 760 F.2d 1039, 1042 (9th Cir.1985) (internal citations omitted). There are no exceptional circumstances in Papen’s case, and Papen, therefore, waived the issue.
2. Papen waived her argument that the ALJ erred in finding that Papen’s alleged impairments (other than her obesity) did not meet or equal a listing under step three of the five step analysis (listed impairment at 20 C.F.R. pt. 404, Subpart P, Appendix 1, 1.02A). She did not properly raise the issue before the district court, and there are no exceptional circumstances to justify addressing it on appeal.
3. The ALJ properly assessed the effects Papen’s obesity had on her functional limitations. Papen’s medical records note that Papen is morbidly obese, and that the obesity affects her impairments. Drs. Harris and Westfall nevertheless found that Papen was still able to perform basic work activities despite these impairments alone, or in combination.
4. We review a claimant’s testimony of medical impairment under a two-step process. First, “[t]he claimant must produce objective medical evidence of an underlying impairment ‘which could reasonably be expected to produce the pain or other symptoms alleged....’” Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir.1991) (quoting 42 U.S.C. § 423(d)(5)(A) (1988)). Second, assuming claimant produces such evidence and there is no affirmative evidence the claimant is malingering, the Commissioner must provide “clear and convincing reasons” for rejecting the testimony. Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir.1993) (quoting Swenson v. Sullivan, 876 F.2d 683, 687 (9th Cir.1989)).
The ALJ provided clear and convincing reasons for rejecting Papen’s testimony. The medical complaints, Papen now alleges as a disability, are the same ones she had while gainfully employed. Also, Drs. Wood and Braseth noted that Papen was assisting with household chores, driving a car, and going grocery shopping. Such activities were clearly inconsistent with Papen’s testimony that she was able to walk only a few feet. Finally, Dr. Harris concluded that Papen’s “complaints of pain/discomfort are out of proportion to her objective findings.”
5. Papen waived her argument that the ALJ posed an improper hypothetical to the vocational experts. She did not raise the issue to the district court, and there are no exceptional circumstances to justify addressing it on appeal.
6. In determining residual functional capacity (“RFC”), an ALJ must consider “all of the relevant medical and other evidence,” 20 C.F.R. § 416.945(a)(3), including statements provided by medical sources and the claimant’s own reports. Id. In maldng his RFC finding, the ALJ essentially adopted the findings of Dr. Harris. Papen could occasionally lift and carry twenty-five pounds, and frequently lift and carry twenty pounds. She was limited to two hours out of eight of stand*208ing or walking. The ALJ also determined that Papen should have the option to sit or stand, and that she may be required to use a cane. The ALJ set Papen’s RFC at a sedentary exertion level. On that basis, he concluded Papen could perform her past relevant work. The vocational experts also supported that determination, testifying Papen could perform her past relevant assembly job, given her RFC.
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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*209MEMORANDUM **
Nico Courtney (“Courtney”) brought suit on a number of claims related to his resignation from the Tribal Gaming Section of the Oregon State Police. Courtney now appeals a district court order granting summary judgment to the Oregon State Police (“Appellees”) on Courtney’s claims under 42 U.S.C. § 2000e-2(a)(1), Oregon Revised Statutes §§ 659A.030 and 659A.203, and 42 U.S.C. § 1983. The parties are familiar with the facts of this case, which we repeat here only to the extent necessary to explain our decision. We review de novo a district court’s decision to grant summary judgment. Universal Health Servs., Inc. v. Thompson, 363 F.3d 1013, 1019 (9th Cir.2004). We view the evidence in the light most favorable to the nonmoving party, id., and affirm.
To survive summary judgment under 42 U.S.C. § 2000e-2(a)(1) or Oregon Revised Statutes § 659A.030(1), a plaintiff must show that
(1) he is a member of a protected class; (2) he was qualified for his position; (3) he experienced an adverse employment action; and (4) similarly situated individuals outside his protected class were treated more favorably, or other circumstances surrounding the adverse employment action give rise to an inference of discrimination.
Fonseca v. Sysco Food Servs, of Ariz., Inc., 374 F.3d 840, 847 (9th Cir.2004) (internal quotation marks omitted). Here, Courtney failed to satisfy the fourth prong of this test. Even if Courtney could establish a prima facie case of discrimination or disparate treatment, summary judgment would still be appropriate because Appellees have demonstrated a nondiscriminatory reason for each of the adverse actions. See Surrell v. Cal. Water Serv. Co., 518 F.3d 1097, 1106 (9th Cir.2008).
To prevail on his hostile work environment claim, Courtney must show that he was subjected to unwelcome conduct of a racial nature that was “sufficiently severe or pervasive to alter the conditions of the plaintiffs employment and create an abusive work environment.” Vasquez v. County of Los Angeles, 349 F.3d 634, 642 (9th Cir.2003). The abusive environment must be both objectively and subjectively offensive. Harris v. Forklift Sys., Inc., 510 U.S. 17, 21-22, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993).
Whether the conduct is sufficient to create a hostile work environment is a question of law. Fuller v. City of Oakland, 47 F.3d 1522, 1527 (9th Cir.1995). Relevant factors include the frequency and severity of the offensive conduct, whether the conduct is physical or a “mere offensive utterance,” and whether the conduct unreasonably interferes with work performance. Harris, 510 U.S. at 23, 114 S.Ct. 367. None of the conduct Courtney cites is sufficiently severe or pervasive to create a hostile work environment.
Under Oregon Revised Statutes § 659A.203(1)(b), a public employer may not take disciplinary action against an employee who discloses any information that the employee reasonably believes is evidence of A) a violation of any federal or state law, rule or regulation, or B) mismanagement, gross waste of funds, or abuse of authority. Nor may the employer discourage an employee from making such a disclosure. Or.Rev.Stat. § 659A.203(1)(d). Here, regardless of whether Courtney made any protected disclosures, he failed to show that those po*210tentially protected disclosures, made roughly one year before Courtney was ever reprimanded, were in any way connected to later disciplinary actions.
Courtney’s procedural due process claims were not presented in any detail to this court, nor do these arguments have any merit. Accordingly, we deem these arguments abandoned. See United States v. Kimble, 107 F.3d 712, 715 n. 2 (9th Cir.1997) (deeming argument abandoned where not adequately developed in appellate briefs).
Nor does Courtney’s substantive due process claim have any merit. “[TJhere is substantive due process protection against government employer actions that foreclose access to a particular profession.” Engquist v. Ore. Dep’t of Agric., 478 F.3d 985, 998 (9th Cir.2007). Such substantive due process claims are limited to “extreme cases,” such as a government blacklist. Id. at 997. Courtney does not explain what particular profession is foreclosed to him, let alone demonstrate that his is an “extreme case.”
Our equal protection analysis of Courtney’s intentional discrimination claim under 42 U.S.C. § 1983 is the same as the Title VII analysis of disparate treatment. See Lowe v. City of Monrovia, 775 F.2d 998, 1011 (9th Cir.1985) (holding that plaintiff had established a triable issue under Title VII, and therefore also established a § 1983 issue). Courtney’s equal protection claim fails for the same reasons his Title VII claim fails, as discussed above.
To survive a summary judgment motion on his remaining First Amendment claim, Courtney must show 1) that he engaged in protected speech, 2) that he suffered from an adverse employment action, and 3) that the protected speech was a “substantial or motivating factor for the adverse action.” Marable v. Nitchman, 511 F.3d 924, 929 (9th Cir.2007) (internal quotation marks omitted). “To qualify as ‘protected speech’ ..., the employee must have uttered the speech as a citizen, not an employee.” Id. (citing Garcetti v. Ceballos, 547 U.S. 410, 415-16, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006)). Whether an employee is acting under an official duty is critical to the protection analysis. Id. at 932. Here, Courtney conceded that, as a police officer, he had an official duty to report any misconduct. Furthermore, even if Courtney could make a prima facie showing of retaliation, Appellee Ragon has demonstrated that he had legitimate reasons for imposing disciplinary measures. See Roe v. City of San Diego, 356 F.3d 1108, 1112 (9th Cir.) (employer can demonstrate that he “would have reached the same decision even in the absence of the employee’s protected conduct”), rev’d on other grounds, 543 U.S. 77, 125 S.Ct. 521, 160 L.Ed.2d 410 (2004).
Accordingly, the district court’s order granting summary 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 **
Maria Elena Aguirre-Pineda appeals from her guilty-plea conviction and 168-month sentence imposed for possession with intent to distribute methamphetamine, in violation of 21 U.S.C. §§ 841 and 846.
Pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), Aguirre-Pineda’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. The appellant has not filed a pro se supplemental brief, but she has filed a letter, which we construe as a motion for appointment of counsel and deny. The government has filed a letter indicating that it does not intend to file an answering brief.
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 **
Barbara Biggs appeals pro se from the district court’s judgment affirming the Commissioner of Social Security’s decision to award retirement benefits subject to the Windfall Elimination Provision, 42 U.S.C. § 415(a)(7). We will not disturb the Commissioner of Social Security’s decision unless it is not supported by substantial evidence or is based on legal error. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir.2005). The district court exercised jurisdiction under 42 U.S.C. § 405(g). We have jurisdiction under 28 U.S.C. § 1291. We affirm.
The facts of this case are known to the parties and we do not repeat them here.
Substantial evidence supports the Commissioner of Social Security’s decision to reduce Biggs’ retirement benefits pursuant to the Windfall Elimination Provision. Contrary to Biggs’ assertions, the Windfall Elimination Provision is constitutional. Das v. Dep’t of Health & Human Servs., 17 F.3d 1250, 1255 (9th Cir.1994).
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 **
In these consolidated petitions for review, Arturo Murillo Mendez and his wife Claudia Del Carmen Salazar, natives and citizens of Mexico, petition for review of the Board of Immigration Appeals’ (“BIA”) orders denying their motions to reopen and reconsider. Our jurisdiction is governed by 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reopen, Cano-Merida v. INS, 311 F.3d 960, 964 (9th Cir.2002), and we review de novo constitutional challenges, Colmenar v. INS, 210 F.3d 967, 971 (9th Cir.2000). We dismiss in part and deny in part the petition in No. 06-73454 and we deny the petition in No. 06-74690.
The BIA did not abuse its discretion concluding that the new evidence regarding petitioners’ children’s mental conditions and acted within its broad discretion in determining that the evidence was insufficient to warrant reopening. See Singh v. INS, 295 F.3d 1037, 1039 (9th Cir.2002) (The BIA’s denial of a motion to reopen shall be reversed only if it is “arbitrary, irrational or contrary to law.”). It follows that the BIA did not violate petitioners’ due process by denying their motion to reopen. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir.2000).
The evidence petitioners presented with their motion to reopen regarding their daughter’s asthma condition concerned the same basic hardship ground previously considered by the agency. We therefore lack jurisdiction to review this aspect of the denial of the motion to reopen. See Fernandez v. Gonzales, 439 F.3d 592, 602-03 (9th Cir.2006).
We do not consider petitioners’ arguments raised for the first time their reply brief. See Bazuaye v. INS, 79 F.3d 118, 120 (9th Cir.1996) (per curiam) (declining to reach issue raised for the first time in the reply brief).
In their opening brief, petitioners fail to address, and therefore has waived any challenge to, the BIA order denying their motion to reconsider. See Martinez-Serrano v. INS, 94 F.3d 1256, 1259-60 (9th Cir.1996) (holding issues which ai*e not specifically raised and argued in a party’s opening brief are waived).
No. 06-73454: PETITION FOR REVIEW in DISMISSED in part; DENIED in part.
No. 06-74690: PETITION FOR REVIEW DENIED.
This disposition is not appropriate for publication and is not precedent except as provid*217ed by 9th Cir. R. 36-3.
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MEMORANDUM **
Prithipal Singh, native and citizen of India, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration judge’s (“IJ”) decision denying his application for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”) and the BIA’s order denying his motion to remand proceedings and dismissing his appeal from the IJ’s denial of his motions to change venue and to continue proceedings (No. 05-71007). Singh also petitions for review of the BIA’s order denying his motion to reopen (No. 07-73889). Our jurisdiction is governed by 8 U.S.C. § 1252. We review for substantial evidence adverse credibility findings, Malhi v. INS 336 F.3d 989, 992-93 (9th Cir.2003). We review for abuse of discretion the denials of a motion to remand, a motion to reopen, a motion to continue, and a motion to change venue. Baires v. INS, 856 F.2d 89, 91-92 (9th Cir.1988); Malhi, 336 F.3d at 992-93. We review de novo claims of due process viola*218tions. Colmenar v. INS, 210 F.3d 967, 971 (9th Cir.2000). We grant in part and deny in part in petition No. 05-71007, and we deny in part and dismiss in part in petition No. 07-73889.
Substantial evidence does not support the IJ’s adverse credibility finding based on the inconsistency in Singh’s testimony as to whether he was in hiding after his arrest, because Singh was not given the opportunity to explain it. See Soto-Olarte v. Holder, 555 F.3d 1089, 1092-96 (9th Cir.2009). The IJ’s finding that Singh was not credible because he did not come to his asylum interview dressed as a traditional Sikh fails because the IJ did not address Singh’s explanation. See id. at 1096. Finally, in the absence of credible testimony, Singh was not required to corroborate his asylum claim. See Kaur v. Ashcroft, 379 F.3d 876, 889-90 (9th Cir.2004). Accordingly, we remand Singh’s asylum and withholding claims for the agency to reconsider its adverse credibility determination on an open record. See Soto-Olarte, 555 F.3d at 1095-96; see also INS v. Ventura, 537 U.S. 12, 16-18, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002) (per curiam).
We further remand for the BIA to determine in the first instance Singh’s exhausted CAT claim. See Sagaydak v. Gonzales, 405 F.3d 1035, 1040 (9th Cir.2005) (“the BIA [is] not free to ignore arguments raised by a petitioner.”).
The agency did not abuse its discretion in denying Singh’s motion to continue proceedings to file an 1-130 visa petition. See Sandoval-Luna v. Mukasey, 526 F.3d 1243, 1247 (9th Cir.2008). Further, the agency’s denial of Singh’s motion for a change of venue was not an abuse of discretion because he failed to show good cause for why his case should be moved to North Carolina, cf. Baires, 856 F.2d at 92, and he did not show prejudice, Colmenar, 210 F.3d at 971. The BIA did not abuse its discretion in denying Singh’s motion to remand because he failed to present clear and convincing evidence that his marriage was bona fide. See Malhi, 336 F.3d at 994.
Finally, the BIA acted within its discretion in denying Singh’s motion to reopen as untimely because Singh filed his motion over two years after the BIA’s prior decision. See 8 C.F.R. § 1003.2(c)(2). We lack jurisdiction to review Singh’s contention that the BIA should have reopened his case based on ineffective assistance of counsel or changed circumstances because he failed to exhaust these arguments before the agency. See Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir.2004). Finally, we reject Singh’s constitutional contentions.
Each party shall bear their own costs for these petitions for review.
No. 05-71007 PETITION FOR REVIEW GRANTED in part; DENIED in part; REMANDED.
No. 07-73889 PETITION FOR REVIEW DENIED in part; DISMISSED in part.
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 **
Bryan Davis, Sr., a California state prisoner, appeals pro se from the district court’s judgment dismissing his 42 U.S.C. § 1983 action. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo a district court’s dismissal for failure to state a claim pursuant to 28 U.S.C. § 1915A, Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir.2000), and pursuant to 28 U.S.C. § 1915(e), Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir.1998) (order), and we affirm.
The district court properly dismissed the claims against defendants Brooks and California Western School of Law because Davis’s complaint failed to allege facts suggesting that these defendants acted under color of state law. See Anderson v. Warner, 451 F.3d 1063, 1067 (9th Cir.2006) (explaining that to state a claim under § 1983, a plaintiff must allege that a person “acting under color of state law” committed the conduct at issue).
The district court properly dismissed defendants McCann and Stout on grounds of prosecutorial immunity. See Milstein v. Cooley, 257 F.3d 1004, 1008-09 (9th Cir.2001) (explaining that state prosecutors are immune from a civil suit for damages under § 1983 for activities intimately associated with the judicial phase of the criminal process).
On appeal Davis makes only conclusory statements unsupported by legal argument. See Fed. R.App. P. 28(a)(9); Entm’t Research Group, Inc. v. Genesis Creative Group, Inc., 122 F.3d 1211, 1217 (9th Cir.1997) (“We will not manufacture *220arguments for an appellant, and a bare assertion does not preserve a claim.”).
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 **
Appellant Leopoldo Alcala Zaragoza (Zaragoza) challenges the district court’s finding that he committed first degree burglary, resulting in revocation of his supervised release.
1. The district court properly conducted the Comito balancing test and excluded unavailable witnesses’s prior statements. See United States v. Comito, 177 F.3d 1166, 1170 (9th Cir.1999). Therefore, there was no due process violation.
2. The 911 recording was admissible under the “excited utterance” exception to the hearsay rule, see Fed.R.Evid. 803(2). Accordingly, the district court did not abuse its discretion when it considered the contents of the recording. See United States v. Hills, Jr., 455 F.2d 504, 505 (9th Cir.1972) (stating that the district court’s admission of a police operator’s testimony under an “excited utterance” hearsay ex*221ception was a “correct application of a well-known exception to the hearsay exclusionary rule”) (citation omitted).
3. There was sufficient evidence for the district court to find that Zaragoza committed first degree burglary, a violation of one of his supervised release conditions. See 18 U.S.C. § 3583(e)(3) (“The court may ... revoke a term of supervised release ... if the court ... finds by a preponderance of the evidence that the defendant violated a condition of supervised release .... ”). Therefore, the district court did not abuse its discretion in revoking Zaragoza’s supervised release. See United States v. Daniel, 209 F.3d 1091, 1094-95 (9th Cir.2000) (affirming the district court’s decision revoking supervised release).
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 **
In these consolidated appeals, Rodrigo Figueroa-Trejo appeals from the 30-month sentence imposed following his guilty-plea conviction for being an alien in the United States after deportation, in violation of 8 U.S.C. § 1326, and the consecutive 21-month sentence imposed for violating supervised release. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
Figueroa-Trejo contends that the total sentence is substantively unreasonable in light of his individual circumstances and all of the sentencing factors under 18 U.S.C. § 3553(a). In light of the totality of the circumstances, the district court did not abuse its discretion and the sentence is not substantively unreasonable. See United States v. Carty, 520 F.3d 984, 993, 996 (9th Cir.2008) (en banc).
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 *
Appellant Ron Field appeals the district court’s grant of summary judgment to County of Orange and Deputy A. Wyffels on the grounds that there was probable cause for Field’s arrest and no constitutional violation in the length of his detention. This court has jurisdiction pursuant to 28 U.S.C. § 1291. We affirm.
Field’s physical resistance and attempts to depart the scene provided probable cause to arrest him for resisting, delaying, or obstructing an officer. See *223CaLPenal Code § 148(a)(1). Whether or not Deputy Wyffels provided verbal instructions to Field is immaterial, because Deputy Wyffels’s actions clearly indicated that Field should remain with his vehicle. See People v. Allen, 109 Cal.App.3d 981, 167 Cal.Rptr. 502, 505-06 (1980); In re Gregory S., 112 Cal.App.3d 764, 169 Cal. Rptr. 540, 543, 547 (1980).
The length of Field’s detention was reasonable. Wyffels’s actions during the stop were all reasonably necessary to the completion of Wyffels’s duties regarding the two infractions — the failure to display registration tags and the failure to produce proof of insurance — as well as the misdemeanor Section 148 violation. See Florida v. Royer, 460 U.S. 491, 500, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983).
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 **
In these consolidated petitions for review, Arturo Murillo Mendez and his wife Claudia Del Carmen Salazar, natives and citizens of Mexico, petition for review of the Board of Immigration Appeals’ (“BIA”) orders denying their motions to reopen and reconsider. Our jurisdiction is governed by 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reopen, Cano-Merida v. INS, 311 F.3d 960, 964 (9th Cir.2002), and we review de novo constitutional challenges, Colmenar v. INS, 210 F.3d 967, 971 (9th Cir.2000). We dismiss in part and deny in part the petition in No. 06-73454 and we deny the petition in No. 06-74690.
The BIA did not abuse its discretion concluding that the new evidence regarding petitioners’ children’s mental conditions and acted within its broad discretion in determining that the evidence was insufficient to warrant reopening. See Singh v. INS, 295 F.3d 1037, 1039 (9th Cir.2002) (The BIA’s denial of a motion to reopen shall be reversed only if it is “arbitrary, irrational or contrary to law.”). It follows that the BIA did not violate petitioners’ due process by denying their motion to reopen. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir.2000).
The evidence petitioners presented with their motion to reopen regarding their daughter’s asthma condition concerned the same basic hardship ground previously considered by the agency. We therefore lack jurisdiction to review this aspect of the denial of the motion to reopen. See Fernandez v. Gonzales, 439 F.3d 592, 602-03 (9th Cir.2006).
We do not consider petitioners’ arguments raised for the first time their reply brief. See Bazuaye v. INS, 79 F.3d 118, 120 (9th Cir.1996) (per curiam) (declining to reach issue raised for the first time in the reply brief).
In their opening brief, petitioners fail to address, and therefore has waived any challenge to, the BIA order denying their motion to reconsider. See Martinez-Serrano v. INS, 94 F.3d 1256, 1259-60 (9th Cir.1996) (holding issues which ai*e not specifically raised and argued in a party’s opening brief are waived).
No. 06-73454: PETITION FOR REVIEW in DISMISSED in part; DENIED in part.
No. 06-74690: PETITION FOR REVIEW DENIED.
This disposition is not appropriate for publication and is not precedent except as provid*217ed by 9th Cir. R. 36-3.
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MEMORANDUM **
Prithipal Singh, native and citizen of India, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration judge’s (“IJ”) decision denying his application for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”) and the BIA’s order denying his motion to remand proceedings and dismissing his appeal from the IJ’s denial of his motions to change venue and to continue proceedings (No. 05-71007). Singh also petitions for review of the BIA’s order denying his motion to reopen (No. 07-73889). Our jurisdiction is governed by 8 U.S.C. § 1252. We review for substantial evidence adverse credibility findings, Malhi v. INS 336 F.3d 989, 992-93 (9th Cir.2003). We review for abuse of discretion the denials of a motion to remand, a motion to reopen, a motion to continue, and a motion to change venue. Baires v. INS, 856 F.2d 89, 91-92 (9th Cir.1988); Malhi, 336 F.3d at 992-93. We review de novo claims of due process viola*218tions. Colmenar v. INS, 210 F.3d 967, 971 (9th Cir.2000). We grant in part and deny in part in petition No. 05-71007, and we deny in part and dismiss in part in petition No. 07-73889.
Substantial evidence does not support the IJ’s adverse credibility finding based on the inconsistency in Singh’s testimony as to whether he was in hiding after his arrest, because Singh was not given the opportunity to explain it. See Soto-Olarte v. Holder, 555 F.3d 1089, 1092-96 (9th Cir.2009). The IJ’s finding that Singh was not credible because he did not come to his asylum interview dressed as a traditional Sikh fails because the IJ did not address Singh’s explanation. See id. at 1096. Finally, in the absence of credible testimony, Singh was not required to corroborate his asylum claim. See Kaur v. Ashcroft, 379 F.3d 876, 889-90 (9th Cir.2004). Accordingly, we remand Singh’s asylum and withholding claims for the agency to reconsider its adverse credibility determination on an open record. See Soto-Olarte, 555 F.3d at 1095-96; see also INS v. Ventura, 537 U.S. 12, 16-18, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002) (per curiam).
We further remand for the BIA to determine in the first instance Singh’s exhausted CAT claim. See Sagaydak v. Gonzales, 405 F.3d 1035, 1040 (9th Cir.2005) (“the BIA [is] not free to ignore arguments raised by a petitioner.”).
The agency did not abuse its discretion in denying Singh’s motion to continue proceedings to file an 1-130 visa petition. See Sandoval-Luna v. Mukasey, 526 F.3d 1243, 1247 (9th Cir.2008). Further, the agency’s denial of Singh’s motion for a change of venue was not an abuse of discretion because he failed to show good cause for why his case should be moved to North Carolina, cf. Baires, 856 F.2d at 92, and he did not show prejudice, Colmenar, 210 F.3d at 971. The BIA did not abuse its discretion in denying Singh’s motion to remand because he failed to present clear and convincing evidence that his marriage was bona fide. See Malhi, 336 F.3d at 994.
Finally, the BIA acted within its discretion in denying Singh’s motion to reopen as untimely because Singh filed his motion over two years after the BIA’s prior decision. See 8 C.F.R. § 1003.2(c)(2). We lack jurisdiction to review Singh’s contention that the BIA should have reopened his case based on ineffective assistance of counsel or changed circumstances because he failed to exhaust these arguments before the agency. See Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir.2004). Finally, we reject Singh’s constitutional contentions.
Each party shall bear their own costs for these petitions for review.
No. 05-71007 PETITION FOR REVIEW GRANTED in part; DENIED in part; REMANDED.
No. 07-73889 PETITION FOR REVIEW DENIED in part; DISMISSED in part.
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 **
Bryan Davis, Sr., a California state prisoner, appeals pro se from the district court’s judgment dismissing his 42 U.S.C. § 1983 action. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo a district court’s dismissal for failure to state a claim pursuant to 28 U.S.C. § 1915A, Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir.2000), and pursuant to 28 U.S.C. § 1915(e), Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir.1998) (order), and we affirm.
The district court properly dismissed the claims against defendants Brooks and California Western School of Law because Davis’s complaint failed to allege facts suggesting that these defendants acted under color of state law. See Anderson v. Warner, 451 F.3d 1063, 1067 (9th Cir.2006) (explaining that to state a claim under § 1983, a plaintiff must allege that a person “acting under color of state law” committed the conduct at issue).
The district court properly dismissed defendants McCann and Stout on grounds of prosecutorial immunity. See Milstein v. Cooley, 257 F.3d 1004, 1008-09 (9th Cir.2001) (explaining that state prosecutors are immune from a civil suit for damages under § 1983 for activities intimately associated with the judicial phase of the criminal process).
On appeal Davis makes only conclusory statements unsupported by legal argument. See Fed. R.App. P. 28(a)(9); Entm’t Research Group, Inc. v. Genesis Creative Group, Inc., 122 F.3d 1211, 1217 (9th Cir.1997) (“We will not manufacture *220arguments for an appellant, and a bare assertion does not preserve a claim.”).
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 **
In these consolidated appeals, Rodrigo Figueroa-Trejo appeals from the 30-month sentence imposed following his guilty-plea conviction for being an alien in the United States after deportation, in violation of 8 U.S.C. § 1326, and the consecutive 21-month sentence imposed for violating supervised release. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
Figueroa-Trejo contends that the total sentence is substantively unreasonable in light of his individual circumstances and all of the sentencing factors under 18 U.S.C. § 3553(a). In light of the totality of the circumstances, the district court did not abuse its discretion and the sentence is not substantively unreasonable. See United States v. Carty, 520 F.3d 984, 993, 996 (9th Cir.2008) (en banc).
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 *
Appellant Ron Field appeals the district court’s grant of summary judgment to County of Orange and Deputy A. Wyffels on the grounds that there was probable cause for Field’s arrest and no constitutional violation in the length of his detention. This court has jurisdiction pursuant to 28 U.S.C. § 1291. We affirm.
Field’s physical resistance and attempts to depart the scene provided probable cause to arrest him for resisting, delaying, or obstructing an officer. See *223CaLPenal Code § 148(a)(1). Whether or not Deputy Wyffels provided verbal instructions to Field is immaterial, because Deputy Wyffels’s actions clearly indicated that Field should remain with his vehicle. See People v. Allen, 109 Cal.App.3d 981, 167 Cal.Rptr. 502, 505-06 (1980); In re Gregory S., 112 Cal.App.3d 764, 169 Cal. Rptr. 540, 543, 547 (1980).
The length of Field’s detention was reasonable. Wyffels’s actions during the stop were all reasonably necessary to the completion of Wyffels’s duties regarding the two infractions — the failure to display registration tags and the failure to produce proof of insurance — as well as the misdemeanor Section 148 violation. See Florida v. Royer, 460 U.S. 491, 500, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983).
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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ORDER
The parties having so agreed, it is
ORDERED that the proceeding is DISMISSED under Fed. R. App. P. 42(b).
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MEMORANDUM **
Tarlochan Singh, a native and citizen of India, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from 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. We review for substantial evidence, Melkonian v. Ashcroft, 320 F.3d 1061, 1065 (9th Cir.2003), and we deny the petition.
Substantial evidence supports the BIA’s determination that Singh reasonably could relocate to another area of India, particularly given that prior to his arrival in the United States, he left India for Thailand, then returned to Calcutta, India, and lived there for several months without incident. See 8 C.F.R. § 1208.13(b)(1)(i)(B); see also Melkonian, 320 F.3d at 1069 (applicant who has demonstrated well-founded fear of persecution may be denied asylum “where the evidence establishes that internal relocation is a reasonable option under all of the circumstances”). Accordingly, Singh’s claim for asylum fails.
Substantial evidence also supports the BIA’s denial of withholding of removal based on the IJ’s finding that Singh may relocate within India. See 8 C.F.R. § 208.16(b)(3); see also Gonzalez-Heman-dez v. Ashcroft, 336 F.3d 995, 999, 1001 n. 5 (9th Cir.2003).
Finally, substantial evidence also supports the BIA’s denial of Singh’s CAT claim because Singh failed to establish it was more likely than not he would be tortured if returned to India. See Lemus-Galvan v. Mukasey, 518 F.3d 1081, 1084 (9th Cir.2008).
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 *
Wendelin Ringel (“Ringel”) appeals from the district court’s denial of her pre-trial *226motion for summary judgment on probable cause pursuant to Fed.R.Civ.P. 56, her renewed motion for judgment as a matter of law on probable cause pursuant to Fed. R.Civ.P. 50(b), and her motion for a new trial based on newly discovered evidence pursuant to Fed.R.Civ.P. 59(a). Ringel filed a federal law claim under 42 U.S.C. § 1983 as well as various related state law claims against defendants Deputy Sheriff Sergeant Chad Bianco (“Bianco”), Deputy Sheriff Gary Colbert (“Colbert”), and the County of Riverside, seeking damages for false arrest and excessive force. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
I.
Ringel contends that the district court erred in denying her motion for summary judgment on probable cause. The denial of a motion for summary judgment is not an appealable final order after a trial on the merits, Dixon v. Wallowa County, 336 F.3d 1013, 1017 (9th Cir.2003), unless the district court made an error of law in denying the motion. See Banuelos v. Constr. Laborers’ Trust Funds for S. Cal., 382 F.3d 897, 902 (9th Cir.2004) (holding that the denial of summary judgment was reviewable after a trial on the merits where the district court relied on evidence outside the record to deny the motion).
Here, the district court denied Ringel’s motion for summary judgment because it found more factual development necessary. Because no error of law occurred, the district court’s denial of Ringel’s motion is not an appealable final order and therefore, is not reviewable.
II.
The district court concluded as a matter of law that defendants had probable cause to arrest Ringel. This conclusion was based on facts stipulated by the parties and facts found by the jury using a special interrogatory. After the jury verdict and judgment had been entered and the jury had been discharged, Ringel brought a renewed motion for judgment as a matter of law on probable cause pursuant to Fed.R.Civ.P. 50(b).
The district court construed Ringel’s Rule 50(b) motion as an objection to the special interrogatory given to the jury. Because Ringel failed to object to the language and use of the special interrogatory before the jury was discharged, the district court deemed the objection waived and denied Ringel’s Rule 50(b) motion. We review a district court’s denial of a Rule 50(b) motion de novo. See Josephs v. Pacific Bell, 443 F.3d 1050, 1062 (9th Cir.2006).
The most reasonable way to read the motion is as an objection to the special probable cause interrogatory given to the jury. Challenges to a special verdict form raised for the first time after the verdict has been entered and the jury has been discharged are waived. Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1109 (9th Cir.2001). Accordingly, Ringel waived any objection to the special interrogatory and the district court properly denied her Rule 50(b) motion.
III
The district court denied Ringel’s motion for a new trial based on newly discovered evidence pursuant to Fed.R.Civ.P. 59(a). We review for abuse of discretion. See Far Out Prod., Inc. v. Oskar, 247 F.3d 986, 992 (9th Cir.2001). To establish that the district court erred in denying her motion for a new trial, Ringel must show (1) the new evidence was discovered after trial; (2) due diligence would not have resulted in the discovery of the new evidence earlier; and (3) the new evidence is of such magnitude that it would have likely changed the outcome of the case. Id. at 992-993.
*227Ringel fails to meet her burden. The new evidence is an unauthenticated photograph of Sandra Stokely (“Stokely”), a reporter present at the scene of Ringel’s arrest. Ringel claims the photo is relevant to establish Stokely’s appearance thus demonstrating, allegedly, that Defendant Bianco committed perjury when he identified a woman in another photograph as Stokely. Ringel does not adequately explain, however, why she could not have obtained the photograph or subpoenaed Stokely for a visual inspection before the trial was over. Even if Bianco’s testimony at trial came as a surprise to Ringel, she could have easily obtained evidence of Stokely’s appearance before the trial ended. Because we find that Ringel did not exercise due diligence in discovering the allegedly new evidence, we do not need to reach the question of whether this evidence would have changed the outcome of the case. Accordingly, we hold that the district court did not abuse its discretion in denying Ringel’s motion for a new trial.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9Üi Cir. R. 36-3.
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MEMORANDUM **
Wayne Deputee appeals from his conviction of sexual abuse of a person who had not attained the age of 12 years at the time of the offense and his mandatory 30-year sentence. We affirm his conviction and sentence.1
The district court did not abuse its discretion in allowing the FBI agent to testify that he intended to give Deputee a polygraph test. Although polygraph evidence is disfavored, “polygraph evidence which is an operative fact may be admissible.” United States v. Bowen, 857 F.2d 1337, 1341 (9th Cir.1988). The district court only allowed Agent Smiedala to testify that he had intended to give Deputee a polygraph examination after Deputee’s counsel, on cross-examination of Smiedala, sought to raise negative inferences from Agent Smiedala’s vague explanations for why his interview with Deputee took an hour and a half.
*229The district court did not abuse its discretion in allowing Deputee’s daughter to testify that he inappropriately touched her when she was between six and eight years old. In United States v. LeMay, 260 F.3d 1018, 1022 (9th Cir.2001), this court held that where a defendant is accused of child molestation, evidence that the defendant committed another similar offense is admissible unless “its probative value is substantially outweighed by the danger of unfair prejudice.” Id. at 1027.
The district court, carefully applied the factors set forth in LeMay in concluding that the probative value of J.D.’s testimony was not outweighed by the danger of unfair prejudice. The court then gave a limiting instruction.
The district court did not abuse its discretion in excluding Deputee’s expert witnesses. A district court’s decision to exclude expert testimony is reviewed for abuse of discretion. United States v. W.R. Grace, 504 F.3d 745, 759 (9th Cir.2007). In this case, the district court properly excluded the testimony of Julia Gates, who gave Deputee a reading test, because she had never before administered a reading test to a person who was motivated to fail the test. The district judge also reasonably excluded the testimony of Dr. Ofshe because he had not previously disclosed the basis for his opinion, the judge had doubts as to whether there was a factual basis for claiming a “false confession,” and the judge determined that Dr. Ofshe’s testimony would not be helpful to the jury. Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 592, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).
The district court did not err in denying Deputee’s motion to suppress his confession. “In determining whether a statement is voluntary, the court looks at the surrounding circumstances and the combined effect of the entire course of the officer’s conduct upon the defendant.” Pollard v. Galaza, 290 F.3d 1030, 1033 (9th Cir.2002). The record shows that Deputee voluntarily drove to the FBI office in Billings to take a polygraph test. Once at the office he was treated cordially, voluntarily signed advisement of rights forms, and understood that he was not compelled to take a polygraph test. Moreover, his taped confession appears to be voluntary and cordial. The district court did not err in determining that Deputee’s confession was voluntary.
Deputee’s mandatory minimum sentence of 30 years does not constitute cruel and unusual punishment. In light of cases such as Harmelin v. Michigan, 501 U.S. 957, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991) (first-time offender received life sentence for possession of 672 grams of cocaine), and Hutto v. Davis, 454 U.S. 370, 102 S.Ct. 703, 70 L.Ed.2d 556 (1982) (40-year sentence for nine ounces of marijuana), Deputee’s sentence is not so disproportionate as to be unconstitutional.
Finally, Deputee’s sentence does not violate the equal protection clause of the constitution. United States v. Antelope, 430 U.S. 641, 97 S.Ct. 1395, 51 L.Ed.2d 701 (1977). (“[Fjederal legislation with respect to Indian tribes, although relating to Indians as such, is not based upon impermissible racial classifications, [and] it is of no consequence that the federal scheme differs from a state criminal code.”) Id. at 645, 648-49, 97 S.Ct. 1395.
Deputee’s conviction and sentence are AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
. Because the parties are familiar with the facts and procedural history, we do not restate them here except as necessary to explain our decision.
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MEMORANDUM ***
This appeal comes before us following remand in Weber v. Nicholson, 253 Fed.Appx. 672 (9th Cir.2007). There, we vacat*231ed the district court’s findings of facts and conclusions of law, made after a bench trial. We remanded, because the district court had not made its factual findings in the framework formulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Weber, 253 Fed.Appx. at 674. Following remand, the district court revised its factual findings and detailed them according to the McDonnell burden-shifting framework. Weber v. Peake, No. CV 02-10-H-SEH, 2008 WL 3200849 (D.Mont. Aug.7, 2008). The district court again concluded there was no age discrimination, dismissed the case, and entered judgment for the defendants.
William N. Weber, M.D. (“Weber”) now appeals the district court’s conclusions that the record did not support a finding of age discrimination under the Age Discrimination Employment Act, 29 U.S.C. §§ 621-634. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
When reviewing a district court’s factual findings, we employ a “clearly erroneous” standard. Anderson v. City of Bessemer, 470 U.S. 564, 573, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985). A finding is clearly erroneous only if “on the entire evidence [the reviewing court] is left with the definite and firm conviction that a mistake has been committed.” Sutton v. Atl. Richfield Co., 646 F.2d 407, 412 (9th Cir.1981) (quoting Zenith Corp. v. Hazeltine, 395 U.S. 100, 123, 89 S.Ct. 1562, 23 L.Ed.2d 129 (1969)).
The district court did not clearly err when it found that Weber’s dismissal was a product of legitimate concerns about his professional competence, not a product of age discrimination. The district court relied on the negative peer reviews of Weber’s work, the various complaints from personnel, the investigation report concerning the pneumothorax incident, and a supervising physician’s two negative assessments. It further noted the inconsistencies and lack of credibility in both Weber’s testimony and in his case generally. Given the substantial evidence against Weber and the deference afforded the district courts in these matters, we cannot say that the district judge clearly erred in dismissing Weber’s age discrimination complaint. See Sutton, 646 F.2d at 411 (Factual findings “dependent upon credibility determinations [are] largely insulated from appellate review.”); see also United States v. Elliott, 322 F.3d 710, 715 (9th Cir.2003) (“Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous.”) (internal quotation marks and citation omitted).
Weber also argues the district court erred by not making sufficiently detailed findings to support its decision. See Sumner v. San Diego Urban League, Inc., 681 F.2d 1140, 1142 (9th Cir.1982) (“The findings of the district court should ... be sufficiently clear and explicit so that the findings can be examined in the light of the evidence in the record and applicable legal principles”) (citing Worthy v. U.S. Steel Corp., 616 F.2d 698, 701 (3d Cir.1980)). We disagree. The district court fully explained why Weber’s allegations failed under any of the three age discrimination theories he asserted, and it did so according to the burden-shifting framework outlined in McDonnell. Weber, 2008 WL 3200849, at *7-10. Weber’s argument that the district court failed to sufficiently detail its findings simply has no merit. We therefore affirm the district court’s dismissal of Weber’s complaint on all grounds.
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 **
Vegas VP, LP appeals the district court’s grant of summary judgment in favor of Ace Property and Casualty Insurance Company (“Ace”). The district court held that Vegas VP’s costs of delay were *233not a covered peril under Exclusion S of the policy. We affirm.
As a threshold matter, we conclude that Ace’s submissions in response to the order to show cause demonstrate that the district court had diversity jurisdiction under 28 U.S.C. § 1332(a). Therefore, pursuant to 28 U.S.C. § 1653, the court amends the pleadings nunc pro tunc to reflect that Vegas VP has one partner, Portland Corporation. Portland Corporation is a citizen of Texas, because it is a corporation formed under the laws of the State of Texas, and it maintains its principle place of business in Texas.
This court has jurisdiction pursuant to 28 U.S.C. § 1291.
Turning now to the merits of this case, Vegas VP advances three arguments in support of reversal. First, Vegas VP argues that Exclusion S applies only to a building that had a roof, windows, or walls at the beginning of the policy period. Because the building under construction (“the tower”) did not have a roof, windows, or walls during a large part of its construction schedule, Vegas VP contends Exclusion S does not apply to the tower at all.
Vegas VP’s reading of the policy leads to an unreasonable result. Under Vegas VP’s view, it could recover for delay resulting from damage to a finished interior even when no efforts were made to protect the interior from the elements. Nevada law does not countenance such an interpretation. See Sterling v. Goodman, 102 Nev. 218, 719 P.2d 1262, 1263 (1986) (“[A]n interpretation which makes the contract or agreement fair and reasonable will be preferred to one which leads to harsh or unreasonable results.”).
Vegas VP argues in the alternative that even if Exclusion S applies to the tower, the tarps it used to protect against the elements constituted the tower’s roof, windows, or walls under the exception to Exclusion S. Therefore, delay caused by rain coming through the damaged tarps is covered under the policy. We disagree.
Taken in context of the entire policy, the plain meaning of Exclusion S requires construction of a permanent roof, windows, and walls before an exception to that exclusion may apply. As noted by the district court, this interpretation is consistent with a builder’s decision whether to begin work on the interior of a building before completing the permanent exterior. See also Nat’l Union Fire Ins. Co. v. Reno’s Executive Air, Inc., 100 Nev. 360, 682 P.2d 1380, 1383 (1984) (“A court must look to the entire contract of insurance for a true understanding of what risks are assumed by the insurer and what risks are excluded.”). In the present case, Vegas VP cannot claim coverage for delays incurred due to rain coming through the temporary covering when the contractor did not erect the permanent exterior contemplated by the policy.
Last, Vegas VP argues that the district court erred by failing to find Ace estopped from arguing that it is not liable for delay associated with rain that did not pass through a roof, windows, or walls. In light of our disposition, we need not address this issue.
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 **
Raymond Stewart appeals from the district court’s order denying his 18 U.S.C. § 3582(c)(2) motion to reduce his sentence. We have jurisdiction pursuant to 28 U.S.C. § 1291. United States v. Colson, 573 F.3d 915 (9th Cir.2009) (order). We affirm.
Stewart contends that the district court abused its discretion when it denied the motion after considering Stewart’s history and characteristics, including Stewart’s escape from federal prison while serving time for the sentence he sought to be reduced. The district court properly took these facts into account when it considered the factors of 18 U.S.C. § 3553(a), and did not abuse its discretion by denying the motion. See 18 U.S.C. § 3582(c)(2); Col-son, 573 F.3d at 916 (abuse of discretion standard of review).
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 **
Jesus Juvenal Vasquez-Lujano appeals pro se from the order denying his motion to reduce his sentence pursuant to 18 U.S.C. § 3582(c)(2). We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
In his opening brief, Vasquez-Lujano fails to develop any argument concerning the district court’s order. Rather, he raises new issues that he did not raise in his § 3582 motion. Vasquez-Lujano has therefore waived any argument concerning the denial of his § 3582 motion, see United States v. Labrada-Bustamante, 428 F.3d 1252, 1264 (9th Cir.2005), and we decline to consider new issues he raises on appeal, see United States v. Cade, 236 F.3d 463, 467 (9th Cir.2000).
In any event, the district court properly declined to resentence Vasquez-Lujano under § 3582, because the amendment to the Guidelines that was the basis of the motion was not made retroactive by the Sentencing Commission. See 18 U.S.C. § 3582(c)(2); U.S.S.G. § 1B1.10.
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 **
Satnam Singh, a native and citizen of India, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration judge’s (“IJ”) decision denying his application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence, Gonzalez-Hernandez v. Ashcroft, 336 F.3d 995, 998 (9th Cir.2003), and we deny in part and grant in part the petition for review.
Substantial evidence supports the agency’s determination that even if Singh established past persecution, the government rebutted Singh’s presumption of a well-founded fear of future persecution both by demonstrating changed circumstances in India, see Sowe v. Mukasey, 538 F.3d 1281, 1285-86 (9th Cir.2008) (agency rationally construed evidence in the record and provided a sufficiently individualized analysis of the petitioner’s situation), and by establishing Singh could reasonably relocate within India, see Gonzalez-Hernandez, 336 F.3d at 998-999. We reject Singh’s contention that the agency improperly shifted the burden of proof to him. Accordingly, Singh’s asylum and withholding of removal claims fail. See id. at 1001 n. 5.
*238In its order, the BIA both stated it declined to reach the IJ’s adverse credibility determination, and relied on the adverse credibility determination to deny Singh’s CAT claim. Thus, substantial evidence does not support the agency’s denial of Singh’s CAT claim. See Taha v. Ashcroft, 389 F.3d 800, 802 (9th Cir.2004) (per curiam). We remand for the agency to address Singh’s CAT claim taking his testimony as true, or to address the IJ’s adverse credibility determination in the first instance.
The parties shall each bear their own costs on appeal.
PETITION FOR REVIEW DENIED in part; GRANTED in part; 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 **
Tarlochan Singh, a native and citizen of India, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from 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. We review for substantial evidence, Melkonian v. Ashcroft, 320 F.3d 1061, 1065 (9th Cir.2003), and we deny the petition.
Substantial evidence supports the BIA’s determination that Singh reasonably could relocate to another area of India, particularly given that prior to his arrival in the United States, he left India for Thailand, then returned to Calcutta, India, and lived there for several months without incident. See 8 C.F.R. § 1208.13(b)(1)(i)(B); see also Melkonian, 320 F.3d at 1069 (applicant who has demonstrated well-founded fear of persecution may be denied asylum “where the evidence establishes that internal relocation is a reasonable option under all of the circumstances”). Accordingly, Singh’s claim for asylum fails.
Substantial evidence also supports the BIA’s denial of withholding of removal based on the IJ’s finding that Singh may relocate within India. See 8 C.F.R. § 208.16(b)(3); see also Gonzalez-Heman-dez v. Ashcroft, 336 F.3d 995, 999, 1001 n. 5 (9th Cir.2003).
Finally, substantial evidence also supports the BIA’s denial of Singh’s CAT claim because Singh failed to establish it was more likely than not he would be tortured if returned to India. See Lemus-Galvan v. Mukasey, 518 F.3d 1081, 1084 (9th Cir.2008).
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 **
Wayne Deputee appeals from his conviction of sexual abuse of a person who had not attained the age of 12 years at the time of the offense and his mandatory 30-year sentence. We affirm his conviction and sentence.1
The district court did not abuse its discretion in allowing the FBI agent to testify that he intended to give Deputee a polygraph test. Although polygraph evidence is disfavored, “polygraph evidence which is an operative fact may be admissible.” United States v. Bowen, 857 F.2d 1337, 1341 (9th Cir.1988). The district court only allowed Agent Smiedala to testify that he had intended to give Deputee a polygraph examination after Deputee’s counsel, on cross-examination of Smiedala, sought to raise negative inferences from Agent Smiedala’s vague explanations for why his interview with Deputee took an hour and a half.
*229The district court did not abuse its discretion in allowing Deputee’s daughter to testify that he inappropriately touched her when she was between six and eight years old. In United States v. LeMay, 260 F.3d 1018, 1022 (9th Cir.2001), this court held that where a defendant is accused of child molestation, evidence that the defendant committed another similar offense is admissible unless “its probative value is substantially outweighed by the danger of unfair prejudice.” Id. at 1027.
The district court, carefully applied the factors set forth in LeMay in concluding that the probative value of J.D.’s testimony was not outweighed by the danger of unfair prejudice. The court then gave a limiting instruction.
The district court did not abuse its discretion in excluding Deputee’s expert witnesses. A district court’s decision to exclude expert testimony is reviewed for abuse of discretion. United States v. W.R. Grace, 504 F.3d 745, 759 (9th Cir.2007). In this case, the district court properly excluded the testimony of Julia Gates, who gave Deputee a reading test, because she had never before administered a reading test to a person who was motivated to fail the test. The district judge also reasonably excluded the testimony of Dr. Ofshe because he had not previously disclosed the basis for his opinion, the judge had doubts as to whether there was a factual basis for claiming a “false confession,” and the judge determined that Dr. Ofshe’s testimony would not be helpful to the jury. Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 592, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).
The district court did not err in denying Deputee’s motion to suppress his confession. “In determining whether a statement is voluntary, the court looks at the surrounding circumstances and the combined effect of the entire course of the officer’s conduct upon the defendant.” Pollard v. Galaza, 290 F.3d 1030, 1033 (9th Cir.2002). The record shows that Deputee voluntarily drove to the FBI office in Billings to take a polygraph test. Once at the office he was treated cordially, voluntarily signed advisement of rights forms, and understood that he was not compelled to take a polygraph test. Moreover, his taped confession appears to be voluntary and cordial. The district court did not err in determining that Deputee’s confession was voluntary.
Deputee’s mandatory minimum sentence of 30 years does not constitute cruel and unusual punishment. In light of cases such as Harmelin v. Michigan, 501 U.S. 957, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991) (first-time offender received life sentence for possession of 672 grams of cocaine), and Hutto v. Davis, 454 U.S. 370, 102 S.Ct. 703, 70 L.Ed.2d 556 (1982) (40-year sentence for nine ounces of marijuana), Deputee’s sentence is not so disproportionate as to be unconstitutional.
Finally, Deputee’s sentence does not violate the equal protection clause of the constitution. United States v. Antelope, 430 U.S. 641, 97 S.Ct. 1395, 51 L.Ed.2d 701 (1977). (“[Fjederal legislation with respect to Indian tribes, although relating to Indians as such, is not based upon impermissible racial classifications, [and] it is of no consequence that the federal scheme differs from a state criminal code.”) Id. at 645, 648-49, 97 S.Ct. 1395.
Deputee’s conviction and sentence are AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
. Because the parties are familiar with the facts and procedural history, we do not restate them here except as necessary to explain our decision.
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MEMORANDUM **
Vegas VP, LP appeals the district court’s grant of summary judgment in favor of Ace Property and Casualty Insurance Company (“Ace”). The district court held that Vegas VP’s costs of delay were *233not a covered peril under Exclusion S of the policy. We affirm.
As a threshold matter, we conclude that Ace’s submissions in response to the order to show cause demonstrate that the district court had diversity jurisdiction under 28 U.S.C. § 1332(a). Therefore, pursuant to 28 U.S.C. § 1653, the court amends the pleadings nunc pro tunc to reflect that Vegas VP has one partner, Portland Corporation. Portland Corporation is a citizen of Texas, because it is a corporation formed under the laws of the State of Texas, and it maintains its principle place of business in Texas.
This court has jurisdiction pursuant to 28 U.S.C. § 1291.
Turning now to the merits of this case, Vegas VP advances three arguments in support of reversal. First, Vegas VP argues that Exclusion S applies only to a building that had a roof, windows, or walls at the beginning of the policy period. Because the building under construction (“the tower”) did not have a roof, windows, or walls during a large part of its construction schedule, Vegas VP contends Exclusion S does not apply to the tower at all.
Vegas VP’s reading of the policy leads to an unreasonable result. Under Vegas VP’s view, it could recover for delay resulting from damage to a finished interior even when no efforts were made to protect the interior from the elements. Nevada law does not countenance such an interpretation. See Sterling v. Goodman, 102 Nev. 218, 719 P.2d 1262, 1263 (1986) (“[A]n interpretation which makes the contract or agreement fair and reasonable will be preferred to one which leads to harsh or unreasonable results.”).
Vegas VP argues in the alternative that even if Exclusion S applies to the tower, the tarps it used to protect against the elements constituted the tower’s roof, windows, or walls under the exception to Exclusion S. Therefore, delay caused by rain coming through the damaged tarps is covered under the policy. We disagree.
Taken in context of the entire policy, the plain meaning of Exclusion S requires construction of a permanent roof, windows, and walls before an exception to that exclusion may apply. As noted by the district court, this interpretation is consistent with a builder’s decision whether to begin work on the interior of a building before completing the permanent exterior. See also Nat’l Union Fire Ins. Co. v. Reno’s Executive Air, Inc., 100 Nev. 360, 682 P.2d 1380, 1383 (1984) (“A court must look to the entire contract of insurance for a true understanding of what risks are assumed by the insurer and what risks are excluded.”). In the present case, Vegas VP cannot claim coverage for delays incurred due to rain coming through the temporary covering when the contractor did not erect the permanent exterior contemplated by the policy.
Last, Vegas VP argues that the district court erred by failing to find Ace estopped from arguing that it is not liable for delay associated with rain that did not pass through a roof, windows, or walls. In light of our disposition, we need not address this issue.
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 **
Raymond Stewart appeals from the district court’s order denying his 18 U.S.C. § 3582(c)(2) motion to reduce his sentence. We have jurisdiction pursuant to 28 U.S.C. § 1291. United States v. Colson, 573 F.3d 915 (9th Cir.2009) (order). We affirm.
Stewart contends that the district court abused its discretion when it denied the motion after considering Stewart’s history and characteristics, including Stewart’s escape from federal prison while serving time for the sentence he sought to be reduced. The district court properly took these facts into account when it considered the factors of 18 U.S.C. § 3553(a), and did not abuse its discretion by denying the motion. See 18 U.S.C. § 3582(c)(2); Col-son, 573 F.3d at 916 (abuse of discretion standard of review).
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 **
Jesus Juvenal Vasquez-Lujano appeals pro se from the order denying his motion to reduce his sentence pursuant to 18 U.S.C. § 3582(c)(2). We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
In his opening brief, Vasquez-Lujano fails to develop any argument concerning the district court’s order. Rather, he raises new issues that he did not raise in his § 3582 motion. Vasquez-Lujano has therefore waived any argument concerning the denial of his § 3582 motion, see United States v. Labrada-Bustamante, 428 F.3d 1252, 1264 (9th Cir.2005), and we decline to consider new issues he raises on appeal, see United States v. Cade, 236 F.3d 463, 467 (9th Cir.2000).
In any event, the district court properly declined to resentence Vasquez-Lujano under § 3582, because the amendment to the Guidelines that was the basis of the motion was not made retroactive by the Sentencing Commission. See 18 U.S.C. § 3582(c)(2); U.S.S.G. § 1B1.10.
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 **
Elisa Pineda Castillo, a native and citizen of Guatemala, petitions for review of the Board of Immigration Appeals’ order dismissing her appeal from an immigration judge’s decision denying her application for asylum and withholding of removal. Our jurisdiction is governed by 8 U.S.C. § 1252. We review for substantial evidence, Nuru v. Gonzales, 404 F.3d 1207, 1215 (9th Cir.2005), and we dismiss in part and deny in part the petition for review.
We lack jurisdiction to review Castillo’s claim of persecution on account of family social group because she failed to exhaust it. See Barron v. Ashcroft, 358 F.3d 674, 677 (9th Cir.2004) (no subject-matter jurisdiction over legal claims not presented in administrative proceedings below).
Substantial evidence supports the agency’s finding that Castillo did not suffer persecution in Guatemala because she was never physically harmed or directly threatened. See Mendez-Gutierrez v. Ashcroft, 340 F.3d 865, 870 n. 6 (9th Cir.2003) (concluding vague allegations of threats insufficient to establish past persecution). Substantial evidence also supports the agency’s finding that Castillo failed to establish her step-father’s murderers imputed a political opinion to her or her family. See Sangha v. INS, 103 F.3d 1482, 1489 (9th Cir.1997) (requiring a close relationship between petitioner’s situation and family member’s persecution to establish imputed political opinion). Further *237more, Castillo failed to demonstrate a well-founded fear of persecution on account of a protected ground because Castillo lived in Guatemala for 17 years without harm before coming to the United States, and her mother continues to live in Guatemala unharmed. See Hakeem v. INS, 273 F.3d 812, 816-17 (9th Cir.2001), see also Castillo v. INS, 951 F.2d 1117, 1122 (9th Cir.1991). Accordingly, we deny Castillo’s asylum claim.
Because Castillo is unable to establish eligibility for asylum, she has necessarily failed to satisfy the more stringent standard under withholding of removal. See Belayneh v. INS, 213 F.3d 488, 490-91 (9th Cir.2000).
PETITION FOR REVIEW DISMISSED in part; DENIED in part.
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 **
Satnam Singh, a native and citizen of India, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration judge’s (“IJ”) decision denying his application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence, Gonzalez-Hernandez v. Ashcroft, 336 F.3d 995, 998 (9th Cir.2003), and we deny in part and grant in part the petition for review.
Substantial evidence supports the agency’s determination that even if Singh established past persecution, the government rebutted Singh’s presumption of a well-founded fear of future persecution both by demonstrating changed circumstances in India, see Sowe v. Mukasey, 538 F.3d 1281, 1285-86 (9th Cir.2008) (agency rationally construed evidence in the record and provided a sufficiently individualized analysis of the petitioner’s situation), and by establishing Singh could reasonably relocate within India, see Gonzalez-Hernandez, 336 F.3d at 998-999. We reject Singh’s contention that the agency improperly shifted the burden of proof to him. Accordingly, Singh’s asylum and withholding of removal claims fail. See id. at 1001 n. 5.
*238In its order, the BIA both stated it declined to reach the IJ’s adverse credibility determination, and relied on the adverse credibility determination to deny Singh’s CAT claim. Thus, substantial evidence does not support the agency’s denial of Singh’s CAT claim. See Taha v. Ashcroft, 389 F.3d 800, 802 (9th Cir.2004) (per curiam). We remand for the agency to address Singh’s CAT claim taking his testimony as true, or to address the IJ’s adverse credibility determination in the first instance.
The parties shall each bear their own costs on appeal.
PETITION FOR REVIEW DENIED in part; GRANTED in part; 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 **
Juan Garcia-Barreto, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (“BIA”) order denying his motion to reopen removal proceedings. We have jurisdiction pursuant to 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reopen. Iturribarria v. INS, 321 F.3d 889, 894 (9th Cir.2003). We grant the petition for review and remand.
The BIA abused its discretion by determining that Garcia-Barreto failed to present previously unavailable evidence because the record shows that the evidence concerning his son’s conditions could not have been discovered prior to the hearing. See 8 C.F.R. § 1003.2(a)(c).
The BIA further abused its discretion by requiring a conclusive showing of the requisite hardship, see Ordonez v. INS, 345 F.3d 777, 785 (9th Cir.2003) (conclusive showing that eligibility for relief has been *240established not required), and by failing to consider all the evidence submitted, including the bi-polar disorder diagnosis, see Mohammed v. Gonzales, 400 F.3d 785, 792 (9th Cir.2005) (failure to consider evidence submitted with motion constituted an abuse of discretion).
We remand for the BIA to reconsider Garcia-Barreto’s motion to reopen under the correct standard and in light of all the evidence submitted.
PETITION FOR REVIEW GRANTED; 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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ORDER
Defendant-appellant’s petition for panel rehearing is granted. The memorandum disposition filed on March 13, 2009, 319 Fed.Appx. 571, is withdrawn, and replaced by the amended memorandum disposition filed concurrently with this order. No further petitions for rehearing will be entertained.
AMENDED MEMORANDUM *
Juvenile Female V. L.-S. (“Juvenile”) appeals her judgment of juvenile delinquency for possession of cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1), and conspiracy to possess cocaine with intent to distribute, in violation of 21 U.S.C. § 846. Juvenile contends that the judgment should be reversed because federal agents violated the Juvenile Delinquency Act (“JDA”) by failing: (1) to advise her of her rights; (2) to notify her parents immediately upon taking her into custody; and (3) to bring her before a magistrate within a reasonable period of time. See 18 U.S.C. § 5033. Juvenile argues further that her inculpatory statements should have been suppressed because they were involuntary and because she had not been advised of her Miranda rights prior to being questioned. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we reverse.
Federal agents interrogated Juvenile at the secondary inspection area of a border checkpoint without advising her of her rights. During the course of the interrogation, Juvenile made incriminating statements that were admitted against her at trial. Regardless of whether the agents violated the JDA or Juvenile’s Miranda rights, her statements should have been suppressed because they were involuntary. “In evaluating voluntariness, the ‘test is whether, considering the totality of the circumstances, the government obtained the statement by physical or psychological coercion or by improper inducement so that the suspect’s will was overborne.’” United States v. Male Juvenile, 280 F.3d 1008, 1022 (9th Cir.2002) (quoting Derrick v. Peterson, 924 F.2d 813, 817 (9th Cir.1991)). The Supreme Court has found officers’ threats against family members to be coercive. See Lynumn v. Illinois, 372 U.S. 528, 534, 83 S.Ct. 917, 9 L.Ed.2d 922 (1963). In this case, agents threatened that they would put Juvenile’s grandmother in jail if Juvenile did not confess, even though the agents had no reason to believe at the time that the grandmother was in possession of drugs. This unwarranted threat constituted the police overreaching or misconduct necessary for a finding of involuntariness. See Colorado v. Connelly, 479 U.S. 157, 163-66, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986). Juvenile admitted that she possessed drugs soon afterward, indicating that her will had been overborne by the officer’s misconduct. The government did not meet its burden of showing that Juvenile’s statements were made voluntarily, United States v. Tingle, 658 F.2d 1332, 1335 (9th Cir.1981), and therefore this evidence should have been suppressed.
Nor has the government met its burden of showing that the evidence of drugs seized from Juvenile should not be suppressed as the fruit of the illegally obtained confession. See Nix v. Williams, 467 U.S. 431, 444, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984). The agents searched *242Juvenile and discovered the drugs shortly after she made the involuntary statement admitting that she had the drugs in her possession. The government made no argument to explain why the drugs should not be suppressed along with Juvenile’s confession.
Finally, the statements Juvenile made later, while under arrest, must be suppressed because they were obtained in violation of the JDA. When an officer takes a juvenile into custody, the officer must “immediately notify the Attorney General and the juvenile’s parents, guardian, or custodian of such custody. The arresting officer shall also notify the parents, guardian, or custodian of the rights of the juvenile and of the nature of the alleged offense.” 18 U.S.C. § 5033. We have held that officers must inform the juvenile’s parents of the juvenile’s rights “contemporaneously with the notification of custody.” United States v. Doe, 170 F.3d 1162, 1168 (9th Cir.1999). The Border Patrol agents failed to meet this requirement. Although they notified Juvenile’s mother that her daughter was in custody on the day she was arrested, they waited until just before she was interrogated before explaining Juvenile’s rights and the nature of the charges against her to her mother. Even then, the DEA agents did not “inform the juvenile’s parent[ ] that [she would] be given the opportunity to advise and counsel [her] child[] before interrogation,” as is required under the JDA. United States v. Wendy G., 255 F.3d 761, 767 (9th Cir.2001). This violation was not harmless because, in the absence of Juvenile’s earlier incriminating statement and the drugs found as a result, the only significant evidence against Juvenile is the statement she made while her mother was present.
The judgment of the district court is REVERSED, and the case is REMANDED to the district court.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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*243MEMORANDUM **
Emerson Paul Birdtail, II appeals from the 31-month sentence imposed following his guilty-plea conviction for assault resulting in serious bodily injury, in violation of 18 U.S.C. §§ 1153(a) and 113(a)(6). We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
Birdtail contends that the district court procedurally erred by failing to address his arguments at sentencing and that his sentence is substantively unreasonable given his positive life changes. The record reflects that the district court did not procedurally err, and that the sentence is substantively reasonable. See United States v. Carty, 520 F.3d 984, 991-93 (9th Cir.2008) (en banc).
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 **
Mima Ball appeals from the Bankruptcy Appellate Panel’s affirmance of the bankruptcy court’s judgment after trial in favor of Michael Burkart, trustee in bankruptcy for the estate of Joseph and Elizabeth Spera.
After reviewing the record and the briefs, and considering the oral arguments presented by the parties, we affirm for the *244reasons given by the Bankruptcy Appellate Panel in its decision.
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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ORDER
The parties having so agreed, it is
ORDERED that the proceeding is DISMISSED under Fed. R. App. P. 42(b).
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MEMORANDUM **
Ali Rajeh Saleh Almntaser, a native and citizen of Yemen, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration judge’s (“IJ”) decision denying his application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252. We review de novo questions of law and review for substantial evidence factual findings. See Husyev v. Mukasey, 528 F.3d 1172, 1177 (9th Cir.2008).
The record does not compel the conclusion that Almntaser’s alleged illness, or his expectation that he would eventually obtain immigration benefits through his marriage established extraordinary circumstances that excuse the untimely filing of his asylum application. See 8 C.F.R. 1208.4(a)(5)(i); see also Husyev, 528 F.3d at 1181-82. Accordingly, Almntaser’s asylum claim fails.
Substantial evidence supports the agency’s determination that Almntaser’s experiences in Yemen did not rise to the level of persecution, see Lim v. INS, 224 F.3d 929, 936-38 (9th Cir.2000) (threats received did not demonstrate past persecution); and that he does not have a clear probability of persecution on account of a *239protected ground, see Molina-Morales v. INS, 237 F.3d 1048, 1052 (9th Cir.2001) (personal retribution is not persecution on account of protected ground). Accordingly, Almntaser’s withholding of removal claim fails.
Substantial evidence supports the agency’s denial of CAT relief because Almnta-ser did not show a likelihood of torture if returned to Yemen. See Silaya v. Muka-sey, 524 F.3d 1066, 1073 (9th Cir.2008).
Finally, Almntaser’s contention that the BIA abused its discretion by failing to state reasons for denying CAT relief is without merit. See Abebe v. Gonzales, 432 F.3d 1037, 1040-41 (9th Cir.2005) (en banc) (where BIA cites Matter of Burbano and does not express disagreement with the IJ’s decision, BIA has independently reviewed record and adopted the IJ’s decision in its entirety).
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 **
Juan Garcia-Barreto, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (“BIA”) order denying his motion to reopen removal proceedings. We have jurisdiction pursuant to 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reopen. Iturribarria v. INS, 321 F.3d 889, 894 (9th Cir.2003). We grant the petition for review and remand.
The BIA abused its discretion by determining that Garcia-Barreto failed to present previously unavailable evidence because the record shows that the evidence concerning his son’s conditions could not have been discovered prior to the hearing. See 8 C.F.R. § 1003.2(a)(c).
The BIA further abused its discretion by requiring a conclusive showing of the requisite hardship, see Ordonez v. INS, 345 F.3d 777, 785 (9th Cir.2003) (conclusive showing that eligibility for relief has been *240established not required), and by failing to consider all the evidence submitted, including the bi-polar disorder diagnosis, see Mohammed v. Gonzales, 400 F.3d 785, 792 (9th Cir.2005) (failure to consider evidence submitted with motion constituted an abuse of discretion).
We remand for the BIA to reconsider Garcia-Barreto’s motion to reopen under the correct standard and in light of all the evidence submitted.
PETITION FOR REVIEW GRANTED; 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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ORDER
Defendant-appellant’s petition for panel rehearing is granted. The memorandum disposition filed on March 13, 2009, 319 Fed.Appx. 571, is withdrawn, and replaced by the amended memorandum disposition filed concurrently with this order. No further petitions for rehearing will be entertained.
AMENDED MEMORANDUM *
Juvenile Female V. L.-S. (“Juvenile”) appeals her judgment of juvenile delinquency for possession of cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1), and conspiracy to possess cocaine with intent to distribute, in violation of 21 U.S.C. § 846. Juvenile contends that the judgment should be reversed because federal agents violated the Juvenile Delinquency Act (“JDA”) by failing: (1) to advise her of her rights; (2) to notify her parents immediately upon taking her into custody; and (3) to bring her before a magistrate within a reasonable period of time. See 18 U.S.C. § 5033. Juvenile argues further that her inculpatory statements should have been suppressed because they were involuntary and because she had not been advised of her Miranda rights prior to being questioned. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we reverse.
Federal agents interrogated Juvenile at the secondary inspection area of a border checkpoint without advising her of her rights. During the course of the interrogation, Juvenile made incriminating statements that were admitted against her at trial. Regardless of whether the agents violated the JDA or Juvenile’s Miranda rights, her statements should have been suppressed because they were involuntary. “In evaluating voluntariness, the ‘test is whether, considering the totality of the circumstances, the government obtained the statement by physical or psychological coercion or by improper inducement so that the suspect’s will was overborne.’” United States v. Male Juvenile, 280 F.3d 1008, 1022 (9th Cir.2002) (quoting Derrick v. Peterson, 924 F.2d 813, 817 (9th Cir.1991)). The Supreme Court has found officers’ threats against family members to be coercive. See Lynumn v. Illinois, 372 U.S. 528, 534, 83 S.Ct. 917, 9 L.Ed.2d 922 (1963). In this case, agents threatened that they would put Juvenile’s grandmother in jail if Juvenile did not confess, even though the agents had no reason to believe at the time that the grandmother was in possession of drugs. This unwarranted threat constituted the police overreaching or misconduct necessary for a finding of involuntariness. See Colorado v. Connelly, 479 U.S. 157, 163-66, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986). Juvenile admitted that she possessed drugs soon afterward, indicating that her will had been overborne by the officer’s misconduct. The government did not meet its burden of showing that Juvenile’s statements were made voluntarily, United States v. Tingle, 658 F.2d 1332, 1335 (9th Cir.1981), and therefore this evidence should have been suppressed.
Nor has the government met its burden of showing that the evidence of drugs seized from Juvenile should not be suppressed as the fruit of the illegally obtained confession. See Nix v. Williams, 467 U.S. 431, 444, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984). The agents searched *242Juvenile and discovered the drugs shortly after she made the involuntary statement admitting that she had the drugs in her possession. The government made no argument to explain why the drugs should not be suppressed along with Juvenile’s confession.
Finally, the statements Juvenile made later, while under arrest, must be suppressed because they were obtained in violation of the JDA. When an officer takes a juvenile into custody, the officer must “immediately notify the Attorney General and the juvenile’s parents, guardian, or custodian of such custody. The arresting officer shall also notify the parents, guardian, or custodian of the rights of the juvenile and of the nature of the alleged offense.” 18 U.S.C. § 5033. We have held that officers must inform the juvenile’s parents of the juvenile’s rights “contemporaneously with the notification of custody.” United States v. Doe, 170 F.3d 1162, 1168 (9th Cir.1999). The Border Patrol agents failed to meet this requirement. Although they notified Juvenile’s mother that her daughter was in custody on the day she was arrested, they waited until just before she was interrogated before explaining Juvenile’s rights and the nature of the charges against her to her mother. Even then, the DEA agents did not “inform the juvenile’s parent[ ] that [she would] be given the opportunity to advise and counsel [her] child[] before interrogation,” as is required under the JDA. United States v. Wendy G., 255 F.3d 761, 767 (9th Cir.2001). This violation was not harmless because, in the absence of Juvenile’s earlier incriminating statement and the drugs found as a result, the only significant evidence against Juvenile is the statement she made while her mother was present.
The judgment of the district court is REVERSED, and the case is REMANDED to the district court.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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*243MEMORANDUM **
Emerson Paul Birdtail, II appeals from the 31-month sentence imposed following his guilty-plea conviction for assault resulting in serious bodily injury, in violation of 18 U.S.C. §§ 1153(a) and 113(a)(6). We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
Birdtail contends that the district court procedurally erred by failing to address his arguments at sentencing and that his sentence is substantively unreasonable given his positive life changes. The record reflects that the district court did not procedurally err, and that the sentence is substantively reasonable. See United States v. Carty, 520 F.3d 984, 991-93 (9th Cir.2008) (en banc).
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 **
Mima Ball appeals from the Bankruptcy Appellate Panel’s affirmance of the bankruptcy court’s judgment after trial in favor of Michael Burkart, trustee in bankruptcy for the estate of Joseph and Elizabeth Spera.
After reviewing the record and the briefs, and considering the oral arguments presented by the parties, we affirm for the *244reasons given by the Bankruptcy Appellate Panel in its decision.
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 **
Mario Marquez-Solis appeals from the 46-month sentence imposed following his *245guilty-plea conviction for illegal reentry by an alien following deportation, in violation of 8 U.S.C. § 1326(a). We have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm, but remand to correct the judgment.
Marquez-Solis contends that the district court plainly erred by assigning two criminal history points pursuant to U.S.S.G. § 4Al.l(d), because the record does not demonstrate that he was on parole at the time he committed the instant offense. We find no plain error because the uncontested presentence report indicates that Marquez-Solis was on parole at the time, and he has not demonstrated otherwise. See United States v. Santiago, 466 F.3d 801, 803 (9th Cir.2006); see also United States v. Romero-Rendon, 220 F.3d 1159, 1161-63 (9th Cir.2000).
We remand the case to the district court with instructions that it delete from the judgment the incorrect reference to 8 U.S.C. § 1326(b). See United States v. Riverar-Sanchez, 222 F.3d 1057, 1062 (9th Cir.2000); see also United States v. Herrera-Blanco, 232 F.3d 715, 719 (9th Cir.2000) (remanding sua sponte to delete the reference to § 1326(b)(2)).
AFFIRMED; REMANDED to correct the judgment.
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 **
Appellant Bruce Rafford (Rafford) sued Appellee Snohomish County (the County) for violations of the Americans with Disabilities Act (ADA) and the Rehabilitation Act because of the County’s alleged failure to reasonably accommodate his hearing impairment during court proceedings involving Rafford’s son. Rafford challenges the district court’s dismissal of his claims for monetary damages premised on intentional discrimination.
The district court properly dismissed Rafford’s claims for monetary damages because Rafford failed to present evidence that the County was deliberately indifferent to his request for a reasonable accommodation. See Memmer v. Marin County Courts, 169 F.3d 630, 633 (9th Cir.1999) (“[A] plaintiff at least must establish deliberate indifference to recover monetary damages under Title II of the ADA.”) (citation omitted); see also Duvall v. County of Kitsap, 260 F.3d 1124, 1139 (9th Cir.2001), as amended (“[A] failure to act must be a result of conduct that is more than negligent, and involves an element of deliberateness.”) (citations omitted).
County officials made reasonable attempts to provide an adequate assisted listening device for Rafford’s use. In addition, the decision not to provide a “real-time” transcript was made by the presiding judge, whose dismissal was not challenged by Rafford.
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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ON MOTION
ORDER
Upon consideration of the joint motion to dismiss this appeal for lack of jurisdiction, due to an unresolved counterclaim at the district court,
IT IS ORDERED THAT:
(1) The motion is granted.
(2) Each side shall bear its own costs.
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ON MOTION
ORDER
Paul N. Nelson moves to dismiss his appeal, no. 2009-1243. K2 Inc. et al. (K2) consent to the dismissal and request clarification of the briefing schedule and requirements for the remaining appeal.
Because there is no longer a cross appeal in this case, the parties should comply *537with the normal brief timelines and requirements for appeals. Thus, the cover of K2’s principal brief shall be blue; the cover of Nelson’s brief shall be red; and the cover of K2’s reply brief shall be gray. See Fed. R.App. P. 32(a)(2). The parties should use the revised caption for 2009-1361, set forth above, on the briefs.
Upon consideration thereof,
IT IS ORDERED THAT:
(1) The motion to dismiss appeal no. 2009-1243 is granted.
(2) Each side shall bear its own costs for 2009-1243.
(3) K2’s principal brief in 2009-1361 is due no later than September 11, 2009. The parties should calculate the remaining due dates in accordance with Fed. Cir. R. 31.
(4) The revised official caption for 2009-1361 is reflected above.
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ON MOTION
ORDER
Upon consideration of Richard J. Shannon’s motion to voluntarily withdraw his appeal,
IT IS ORDERED THAT:
(1) The motion is granted and the appeal is dismissed.
(2) Each side shall bear its own costs.
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ON MOTION
ORDER
Upon consideration of Suzanne Zebedee et al.’s unopposed motion to dismiss,
IT IS ORDERED THAT:
(1) The motion is granted. The appeal is dismissed.
(2) Each side shall bear its own costs.
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ON MOTION
ORDER
Triune Star, Inc. moves to withdraw its appeal. Pantech & Curitel Communications, Inc. et al. consent.
Upon consideration thereof,
IT IS ORDERED THAT:
(1) The motion is granted.
(2) Each side shall bear its own costs.
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ON MOTION
ORDER
Marco Faraoni moves to voluntarily dismiss his petition for review.
Upon consideration thereof,
IT IS ORDERED THAT:
(1) The motion is granted.
(2) Each side shall bear its own costs.
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JUDGMENT
PER CURIAM.
This appeal was considered on the record from the United States District Court for the District of Columbia and on the brief and supplements thereto filed by appellant. See Fed. R.App. P. 34(a)(2); D.C.Cir. Rule 34(j). It is
ORDERED AND ADJUDGED that the district court’s order filed February 10, 2009, 2009 WL 331363, be affirmed. The district court properly dismissed the complaint as to the D.C. Superior Court judge who presided over appellant’s criminal trial, because the judge is absolutely immune from liability for damages for acts taken in his official capacity. See Atherton v. District of Columbia Office of Mayor, 567 F.3d 672, 682-83 (D.C.Cir.2009) (and cases cited therein). To the extent appellant complained about and sought damages regarding the fact of his confinement, the court properly dismissed as well. See Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994) (criminal defendant may not recover damages under section 1983 for harm caused by actions whose unlawfulness would render conviction or sentence invalid unless conviction or sentence has been invalidated in another proceeding). We also affirm the dismissal of the section 1983 claims against the District of Columbia; a municipality is liable for constitutional torts arising out of official municipal policy, but is not liable under principles of respondeat superior. See Atherton, 567 F.3d at 691.
Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or petition for rehearing en banc. *550See Fed. R.App. P. 41(b); D.C.Cir. Rule 41.
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MEMORANDUM **
Appellant Bruce Rafford (Rafford) sued Appellee Snohomish County (the County) for violations of the Americans with Disabilities Act (ADA) and the Rehabilitation Act because of the County’s alleged failure to reasonably accommodate his hearing impairment during court proceedings involving Rafford’s son. Rafford challenges the district court’s dismissal of his claims for monetary damages premised on intentional discrimination.
The district court properly dismissed Rafford’s claims for monetary damages because Rafford failed to present evidence that the County was deliberately indifferent to his request for a reasonable accommodation. See Memmer v. Marin County Courts, 169 F.3d 630, 633 (9th Cir.1999) (“[A] plaintiff at least must establish deliberate indifference to recover monetary damages under Title II of the ADA.”) (citation omitted); see also Duvall v. County of Kitsap, 260 F.3d 1124, 1139 (9th Cir.2001), as amended (“[A] failure to act must be a result of conduct that is more than negligent, and involves an element of deliberateness.”) (citations omitted).
County officials made reasonable attempts to provide an adequate assisted listening device for Rafford’s use. In addition, the decision not to provide a “real-time” transcript was made by the presiding judge, whose dismissal was not challenged by Rafford.
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:
Mickey Pubien and Gary Baptiste appeal their convictions for conspiracy to possess with intent to distribute five kilograms or more of cocaine, 21 U.S.C. §§ 841(a)(1), 846, 960(b)(1)(B), conspiracy to possess with intent to distribute 50 grams or more of cocaine base, id. § § 841(a)(1), 841(b)(1)(A), 846, and multiple counts of distribution and possession with intent to distribute 500 grams or more of cocaine, id. §§ 841(a)(1), 841(b)(1)(B); 18 U.S.C. § 2. Pubien and Baptiste challenge the denial of Pubien’s Batson objection and the sufficiency of the evidence to support their convictions. Pu-bien challenges his sentence, and Baptiste challenges the admission of testimony from officers about the meaning of code words used by participants in the conspiracy. We affirm.
I. BACKGROUND
Officers of the Drug Enforcement Agency and the police departments of Fort Lauderdale and Lauderhill, Florida, began a joint investigation of a large-scale conspiracy to traffic cocaine. One target of the investigation was Luckner Monestine, *475a known drug trafficker who had sold cocaine to a confidential informant. To discover Monestine’s supplier, officers obtained warrants to intercept calls made from the cellular* telephones of individuals involved in the conspiracy. Over a six-month period, officers collected information that implicated Monestine, Pubien, and Baptiste.
As a result of the investigation, Mones-tine, Pubien, Baptiste, and eleven codefen-dants were charged in a 32-count indictment for various drug crimes. Pubien was charged for six crimes: conspiring to possess with the intent to distribute five kilograms or more of cocaine from February 2006 through December 2006, 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), 960(b)(1)(B); conspiring to possess with the intent to distribute 50 grams or more of cocaine base from February 2006 through December 2006, id. §§ 841(a)(1), 841(b)(1)(B), 846; and four counts of distributing and possessing with intent to distribute 500 grams or more of cocaine between July 25, 2006 and August 2, 2006, on September 27, 2006, between October 19, 2006 and October 20, 2006, and on November 1, 2006, id. §§ 841(a)(1), (b)(1)(B); 18 U.S.C. § 2. Baptiste was charged for five crimes: conspiring to possess with the intent to distribute five kilograms or more of cocaine from February 2006 through December 2006, 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), 960(b)(1)(B); conspiring to possess with the intent to distribute 50 grams or more of cocaine base from February 2006 through December 2006, id. §§ 841(a)(1), 841(b)(1)(A), 846; and three counts of distributing and possessing with intent to distribute 500 grams or more of cocaine on October 23, 2006, October 25, 2006, and November 4, 2006, id. § § 841(a)(1), 841(b)(1)(B); 18 U.S.C. § 2.
Agents Brian Geraghty and Michael Baker of the Drug Enforcement Agency and Detective Nick Coffin of the Fort Lauderdale Police Department testified at trial about the electronic telephone intercepts, surveillance, videotapes of meetings between members of the conspiracy, and the seizure of cocaine and crack cocaine. Agent Geraghty was the only officer admitted as an expert witness to testify about drug trafficking operations, methods used to package drugs, and code words used by persons in the conspiracy. The testimonies of the three officers were supplemented by the testimonies of Monestine and cohort Aldrian Bowe.
At the close of the case of the government and the conclusion of the evidence, both Pubien and Baptiste moved for judgments of acquittal. Baptiste argued that “[t]here [was] an absence ... of any evidence suggesting that [he] had ever delivered crack cocaine” to anyone involved in the conspiracy and that the “evidence [did] not support going to the jury” for crimes related to “the delivery of powder cocaine.” Baptiste argued that the “evidence [did] not satisfy all the elements of the crimefs]” charged. The district court denied both motions.
The jury found Pubien and Baptiste guilty of conspiracy to possess with intent to distribute at least five kilograms of cocaine, 21 U.S.C. §§ 841(a)(1), 846, 960(b)(1)(B), and conspiracy to possess with intent to distribute at least 50 grams of cocaine base, id. § § 841(a)(1), 841(b)(1)(A), 846. The jury also found Pu-bien guilty of four counts of distribution and possession with intent to distribute at least 500 grams of cocaine, id. §§ 841(a)(1), 841(b)(1)(B); 18 U.S.C. § 2, and Baptiste guilty of three counts of the same crime. Id.
Pubien’s presentence investigation report provided a criminal history category of III based on his three prior convictions in Florida courts for possessing and dis*476tributing cocaine. The report provided that Pubien was subject to a mandatory-sentence of imprisonment for life because of his convictions for conspiracy to distribute cocaine and cocaine base, 21 U.S.C. § 841(b)(1)(A), and the report adjusted Pu-bien’s applicable sentencing range to imprisonment for life. Pubien did not object to the report.
At the sentencing hearing, the district court sentenced Pubien to six concurrent terms of imprisonment for life. Counsel for Pubien objected to the sentences for Pubien’s distribution charges on the ground that they exceeded the statutory maximum sentence of 40 years of imprisonment. After further argument, counsel stated, “since the Court is sentencing Mr. Pubien to concurrent terms, I believe that it would be a lawful sentence.”
II. STANDARDS OF REVIEW
We apply four standards of review in this appeal. We review de novo decisions about the selection of a jury and related findings of fact for clear error. United States v. Campa, 529 F.3d 980, 992 (11th Cir.2008), cert. denied, — U.S. —, 129 S.Ct. 2790, 174 L.Ed.2d 290 (2009). Objections or arguments regarding rulings that are not raised during trial are reviewed for plain error. United States v. Mangaroo, 504 F.3d 1350, 1353 (11th Cir.2007). We also review de novo the denial of a judgment of acquittal, and we construe the evidence in the light most favorable to the government. United States v. Browne, 505 F.3d 1229, 1253 (11th Cir.2007). We review the reasonableness of a criminal sentence for an abuse of discretion. Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 594, 596-97, 169 L.Ed.2d 445 (2007). “[T]he party who challenges the sentence bears the burden of establishing that the sentence is unreasonable in the light of both [the] record and the factors in section 3553(a).” United States v. Talley, 431 F.3d 784, 788 (11th Cir.2005).
III. DISCUSSION
Pubien and Baptiste raise several arguments for our consideration. All fail. We address each argument in turn.
A. Pubien Failed to Establish a Prima Facie Case of Discrimination.
Pubien argues that the district court should have required the government to articulate a race-neutral reason for using its first peremptory challenge to remove a black prospective juror from the venire. The district court found that Pubien failed to establish a pattern of discrimination. Baptiste also challenges, for the first time on appeal, the same peremptory challenge.
To establish a prima facie case of discrimination, a defendant must “show that he is a member of a cognizable racial group[ ] and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant’s race.’ ” Batson v. Kentucky, 476 U.S. 79, 96, 106 S.Ct. 1712, 1723, 90 L.Ed.2d 69 (1986) (citation omitted). The defendant then must establish that “these facts and any other relevant circumstances raise an inference” of discrimination. Id. If the defendant establishes a prima facie case then the prosecutor must provide a race-neutral explanation for the peremptory challenge. United States v. Allen-Brown, 243 F.3d 1293, 1297 (11th Cir.2001).
Pubien failed to establish a prima facie case of discrimination. Pubien alleged that the prospective juror was black and challenged by the government, but those facts alone did not establish that the challenge was exercised with discriminatory animus. “In making out a prima facie case, ‘the defendant must point to more than the bare fact of the removal of certain venirepersons and the absence of an obvi*477ous valid reason for the removal.’ ” United States v. Allison, 908 F.2d 1531, 1538 (11th Cir.1990) (quoting United States v. Young-Bey, 893 F.2d 178, 179 (8th Cir.1990)). The record also establishes that the government later did not challenge three black jurors who were seated on the petit jury. The district court did not err, much less plainly err, by denying Pubien’s Batson objection.
B. Pubien Has Abandoned His Challenge To the Sufficiency of the Evidence.
Pubien contends that the government failed to prove that he was guilty of conspiring to distribute at least 50 grams of cocaine base, but he has abandoned that argument. Rule of Appellate Procedure 28(a)(9)(A) requires an appellant to include in his argument his “contentions and reasons for them, with citations to the authorities and parts of the record on which [he] relies.” Pubien’s argument consists of three sentences in which he summarily asserts that the government failed to meet its burden of proof, the “quantity of 50 grams or more is far reaching!,] and the evidence is insufficient to support such quantity.” Because Pubien neglected to provide any meaningful discussion of the evidence or any reference to the record, we consider the argument abandoned. See Singh v. U.S. Att’y Gen., 561 F.3d 1275, 1278 (11th Cir.2009) (“[A]n appellant’s simply stating that an issue exists, without further argument or discussion, constitutes abandonment of that issue and precludes our considering the issue on appeal.”).
C. There is Sufficient Evidence That Baptiste Conspired To Distribute and Distributed Cocaine and Cocaine Base.
Baptiste argues that insufficient evidence exists to support his four convictions that he conspired to distribute at least five kilograms of cocaine between February 2006 and December 2006 and he distributed and possessed with intent to distribute 500 grams of cocaine on October 23, 2006, October 25, 2006, and November 4, 2006. Baptiste argues that Bowe lacked credibility and his testimony was inconsistent with Monestine’s testimony about the quantity of cocaine he received from Baptiste. Baptiste also argues that the government failed to prove that he sold cocaine to Monestine on October 25, 2006, and Baptiste argues that the government failed to prove that he participated in a drug transaction on November 4, 2006.
Sufficient evidence supports Baptiste’s convictions. Monestine and Bowe testified that Baptiste was a primary source of cocaine for Monestine, and the government introduced conversations between Baptiste and Monestine from February 2006 through December 2006, in which Baptiste discussed delivering to Monestine on different dates between 2 and 40 kilograms of cocaine. Monestine testified that, on October 23, 2006, he ordered and received from Baptiste two kilograms of cocaine, and Detective Coffin observed Monestine and Baptiste exchange a white plastic bag at a prearranged location. On October 25, 2006, Baptiste delivered to Monestine two kilograms of cocaine and, after the sale, Baptiste increased the price of the drugs. On November 4, 2006, Baptiste had his brother deliver to Monestine two kilo-shaped objects with wet wrapping that tested positive for cocaine, and Baptiste and his brother later that day discussed the poor condition of that cocaine. The district court did not err by denying Baptiste’s motion for a judgment of acquittal.
D. Testimonies of Officers About Code Words Used During the Conspiracy Were Admissible.
Baptiste argues for the first time on appeal that the district court erred by *478admitting the testimonies of Detective Coffin and Agent Baker about the meaning of code words used in telephone conversations between members of the conspiracy because the officers were not tendered as expert witnesses. This argument fails. A police officer may give an opinion about certain evidence if that opinion is rationally based on his personal perceptions, training, and experience. See Fed.R.Evid. 701(c); United States v. Myers, 972 F.2d 1566, 1576-77 (11th Cir.1992). Coffin and Baker testified that they had experience with narcotics transactions and were familiar with code words used in the drug trade. Coffin and Baker testified after Agent Geraghty and before Bowe and Monestine, all of whom interpreted the same code words without objection from Baptiste. The district court committed no error, much less plain error, by admitting the officers’ testimonies.
E. Pubien Waived His Challenge To His Sentence for the Distribution of Cocaine.
Pubien argues that his sentence to imprisonment for life for his four convictions for the distribution of 500 grams or more of cocaine is illegal because it exceeded the maximum statutory sentence, but he waived that argument. Pubien affirmatively withdrew his objection at his sentencing hearing by stating that he had received “a lawful sentence.” See United States v. Masters, 118 F.3d 1524, 1526 (11th Cir.1997).
F. Pubien’s Sentence to Imprisonment for Life Is Reasonable and Constitutional.
Pubien challenges his sentence to imprisonment for life on two grounds. First, Pubien argues that the sentence is unreasonable because it failed to account for his poor childhood, youth, and likelihood of rehabilitation. Second, Pubien argues for the first time on appeal that his sentence constitutes cruel and unusual punishment in violation of the Eighth Amendment. These arguments fail.
The district court was required to sentence Pubien to imprisonment for life. Pubien’s sentence does not conflict with the sentencing factors because “[i]t is well-settled that a district court is not authorized to sentence a defendant below the statutory mandatory minimum unless the government filed a substantial assistance motion pursuant to 18 U.S.C. § 3553(e) and U.S.S.G. § 5K1.1 or the defendant falls within the safety-valve of 18 U.S.C. § 3553(f).” United States v. Castaing-Sosa, 530 F.3d 1358, 1360-61 (11th Cir.2008). Pubien’s sentence was mandatory and we have upheld section 841 against other Eighth Amendment challenges. See United States v. Willis, 956 F.2d 248, 251 (11th Cir.1992); see also United States v. Johnson, 451 F.3d 1239, 1243 (11th Cir.2006) (‘“In general, a sentence within the limits imposed by statute is neither excessive nor cruel and unusual under the Eighth Amendment.’ ”) (quoting United States v. Moriariy, 429 F.3d 1012, 1024 (11th Cir.2005)). The district court did not err, plain or otherwise, when it sentenced Pubien.
IV. CONCLUSION
The convictions of Baptiste and the convictions and sentences of Pubien are AFFIRMED.
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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/8473286/
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ON MOTION
ORDER
Upon consideration of the joint motion to dismiss this appeal for lack of jurisdiction, due to an unresolved counterclaim at the district court,
IT IS ORDERED THAT:
(1) The motion is granted.
(2) Each side shall bear its own costs.
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01-04-2023
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11-05-2022
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