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MEMORANDUM **
Kenneth and Lois Anne Barker appeal pro se from the district court’s judgment dismissing for failure to prosecute their action brought under the Racketeer Influenced and Corrupt Organizations Act. We have jurisdiction under 28 U.S.C. § 1291. We review for an abuse of discretion a dismissal under Federal Rule of Civil Procedure 41(b), Pagtalunan v. Galaza, 291 F.3d 639, 640 (9th Cir.2002), and we affirm.
The district court did not abuse its discretion by dismissing the action in light of the Barkers’ failure to file an amended complaint or indicate their intention to stand on the initial complaint within the deadline set by the court. See id. at 642-43 (discussing factors that courts must consider in deciding whether to dismiss under Rule 41(b)).
The Barkers’ remaining contentions are unpersuasive.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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https://www.courtlistener.com/api/rest/v3/opinions/8473622/
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MEMORANDUM **
California state prisoner Terrence Brownlee appeals pro se from the district court’s judgment dismissing his 42 U.S.C. § 1983 action alleging deliberate indifference to his medical needs, discrimination based on his disability, and denial of access to the courts. We have jurisdiction under 28 U.S.C. § 1291. We review de novo the district court’s dismissal pursuant to 28 U.S.C. § 1915A. Ramirez v. Galaza, 334 F.3d 850, 853-54 (9th Cir.2003). We affirm in part, vacate in part, and remand.
The district court properly dismissed most of Brownlee’s claims. However, accepting his allegations as true and construing the pro se complaint liberally, Brown-lee’s allegations that defendant Friederichs lifted the medical hold against transfer, the effect of which was to delay needed surgery and prolong his back pain, state a claim that Friederichs was deliberately indifferent to Brownlee’s serious medical needs. See Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir.2006) (stating that a failure to respond to the prisoner’s pain or possible medical need, including a denial or delay in a prisoner’s medical treatment, may constitute deliberate indifference).
Accordingly, we affirm in part, vacate in part, and remand for further proceedings consistent with this disposition.
Brownlee’s remaining contentions are unpersuasive.
Brownlee shall bear his own costs on appeal.
AFFIRMED in part, VACATED in part, and REMANDED.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
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https://www.courtlistener.com/api/rest/v3/opinions/8473624/
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MEMORANDUM **
Dianne Barker appeals pro se from the district court’s order dismissing her employment discrimination action as a discovery sanction under Federal Rule of Civil Procedure 37(b). We have jurisdiction under 28 U.S.C. § 1291. We review for an abuse of discretion, Rio Props., Inc. v. Rio Intern. Interlink, 284 F.3d 1007, 1022 (9th Cir.2002), and we affirm.
The district court did not abuse its discretion by dismissing the action in light of Barker’s repeated failure to comply with discovery orders. See Fed.R.Civ.P. 37(b)(2)(C); Rio Props., Inc., 284 F.3d at 1022 (discussing five factors court must weigh in determining whether to dismiss a case for failure to comply with a court order).
We do not review the district court’s order denying reconsideration because Barker did not file an amended notice of appeal from the denial of that order. See Fed. R.App. P. 4(a)(4)(B)(ii).
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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https://www.courtlistener.com/api/rest/v3/opinions/8473628/
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MEMORANDUM ***
California state prisoner Gregory Leroy Smith appeals pro se from the district *180court’s judgment following a jury trial in his 42 U.S.C. § 1983 action alleging that prison officials used excessive force in restraining him. We have jurisdiction under 28 U.S.C. § 1291. We review de novo a judgment on the pleadings. Weeks v. Bayer, 246 F.3d 1231, 1234 (9th Cir.2001). We review whether substantial evidence supports the jury’s verdict. Watec Co., Ltd. v. Liu, 403 F.3d 645, 651 n. 5 (9th Cir.2005). We affirm.
The district court properly granted judgment on the pleadings with respect to the claims against the County of San Diego because Smith failed to allege the existence of any unconstitutional policy or custom. See Hart v. Parks, 450 F.3d 1059, 1071 (9th Cir.2006) (explaining that municipal liability under § 1983 exists only for constitutional violations occurring pursuant to an official government policy or custom).
The jury’s verdict was supported by testimonial evidence that force was used only after Smith challenged Deputy Ausler’s authority, repeatedly refused to follow his legitimate orders, and then threatened to assault him physically. See Pavao v. Pagay, 307 F.3d 915, 921 (9th Cir.2002) (relying on testimonial evidence to uphold jury’s verdict for police officer in § 1983 action).
The district court did not abuse its discretion by admitting Smith’s prior felony conviction under Federal Rule of Evidence 609 where the court recognized the importance of Smith’s testimony, acknowledged the centrality of his credibility, and issued a limiting instruction to mitigate possible prejudice. See United States v. Jimenez, 214 F.3d 1095, 1099 (9th Cir.2000) (concluding that court demonstrated an awareness of Rule 609 where the judge recognized the centrality of the credibility issue and a party’s testimony, and sought to ameliorate possible prejudice with a limiting instruction).
The district court did not abuse its discretion in admitting Smith’s inmate status reports because they were not being introduced to prove the truth of the matter asserted but rather to impeach Smith’s prior testimony that he was not a disruptive inmate. See Fed.R.Evid. 608(b) (permitting the introduction of extrinsic evidence to impeachment a witness’s testimony by contradiction).
The district court did not abuse its discretion by denying Smith’s motions for appointment of counsel because Smith failed to demonstrate exceptional circumstances warranting the appointment of counsel. See Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir.2009).
Smith’s remaining contentions are unpersuasive.
We deny Smith’s Motion to Add New Evidence in Support of His Claim.
Smith’s motion to file a late reply brief is granted. The Clerk shall file the reply brief received on September 24, 2009.
AFFIRMED.
phjg disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
California state prisoner Terrence Brownlee appeals pro se from the district court’s judgment dismissing his 42 U.S.C. § 1983 action alleging improper denial of parole. We have jurisdiction under 28 U.S.C. § 1291. We review de novo the district court’s dismissal pursuant to 28 U.S.C. § 1915A. Ramirez v. Galaza, 334 F.3d 850, 853-54 (9th Cir.2003). We affirm.
The district court properly dismissed Brownlee’s claims because defendants are immune from suit. See Swift v. California, 384 F.3d 1184, 1189 (9th Cir.2004) (holding that parole board officials are entitled to absolute quasi-judicial immunity from suits arising from decisions to grant, deny, or revoke parole); Brown v. Cal. Dep’t of Corrs., 554 F.3d 747, 750 (9th Cir.2009) (holding that prosecutors should be afforded absolute immunity for parole recommendations because parole decisions are a continuation of the sentencing process).
Brownlee’s remaining contentions are unpersuasive.
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 **
Kenneth and Lois Anne Barker appeal pro se from the district court’s judgment dismissing for failure to prosecute their action brought under the Racketeer Influenced and Corrupt Organizations Act. We have jurisdiction under 28 U.S.C. § 1291. We review for an abuse of discretion a dismissal under Federal Rule of Civil Procedure 41(b), Pagtalunan v. Galaza, 291 F.3d 639, 640 (9th Cir.2002), and we affirm.
The district court did not abuse its discretion by dismissing the action in light of the Barkers’ failure to file an amended complaint or indicate their intention to stand on the initial complaint within the deadline set by the court. See id. at 642-43 (discussing factors that courts must consider in deciding whether to dismiss under Rule 41(b)).
The Barkers’ remaining contentions are unpersuasive.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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https://www.courtlistener.com/api/rest/v3/opinions/8473623/
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MEMORANDUM **
California state prisoner Terrence Brownlee appeals pro se from the district court’s judgment dismissing his 42 U.S.C. § 1983 action alleging deliberate indifference to his medical needs, discrimination based on his disability, and denial of access to the courts. We have jurisdiction under 28 U.S.C. § 1291. We review de novo the district court’s dismissal pursuant to 28 U.S.C. § 1915A. Ramirez v. Galaza, 334 F.3d 850, 853-54 (9th Cir.2003). We affirm in part, vacate in part, and remand.
The district court properly dismissed most of Brownlee’s claims. However, accepting his allegations as true and construing the pro se complaint liberally, Brown-lee’s allegations that defendant Friederichs lifted the medical hold against transfer, the effect of which was to delay needed surgery and prolong his back pain, state a claim that Friederichs was deliberately indifferent to Brownlee’s serious medical needs. See Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir.2006) (stating that a failure to respond to the prisoner’s pain or possible medical need, including a denial or delay in a prisoner’s medical treatment, may constitute deliberate indifference).
Accordingly, we affirm in part, vacate in part, and remand for further proceedings consistent with this disposition.
Brownlee’s remaining contentions are unpersuasive.
Brownlee shall bear his own costs on appeal.
AFFIRMED in part, VACATED in part, and REMANDED.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
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MEMORANDUM **
Dianne Barker appeals pro se from the district court’s order dismissing her employment discrimination action as a discovery sanction under Federal Rule of Civil Procedure 37(b). We have jurisdiction under 28 U.S.C. § 1291. We review for an abuse of discretion, Rio Props., Inc. v. Rio Intern. Interlink, 284 F.3d 1007, 1022 (9th Cir.2002), and we affirm.
The district court did not abuse its discretion by dismissing the action in light of Barker’s repeated failure to comply with discovery orders. See Fed.R.Civ.P. 37(b)(2)(C); Rio Props., Inc., 284 F.3d at 1022 (discussing five factors court must weigh in determining whether to dismiss a case for failure to comply with a court order).
We do not review the district court’s order denying reconsideration because Barker did not file an amended notice of appeal from the denial of that order. See Fed. R.App. P. 4(a)(4)(B)(ii).
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 **
California state prisoner Will Moses Palmer appeals pro se from the district court’s order dismissing his due process claim without prejudice for failure to exhaust administrative remedies as required by the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a), and granting summary judgment on his excessive force claim. We have jurisdiction under 28 U.S.C. § 1291. We review de novo both the exhaustion determination, Wyatt v. Terhune, 315 F.3d 1108, 1117 (9th Cir.2003), and the grant of summary judgment, Barnett v. Centoni, 31 F.3d 813, 815 (9th Cir.1994) (per curiam). We affirm.
The district court properly dismissed the due process claim because Palmer did not complete the prison grievance process before filing suit in federal court. See McKinney v. Carey, 311 F.3d 1198, 1199 (9th Cir.2002) (per curiam) (holding that exhaustion under § 1997e(a) must occur prior to commencement of the action).
The district court properly granted summary judgment on the excessive force claim because Palmer failed to raise a triable issue as to whether the defendants used excessive force while removing him from the courthouse and placing him in a vehicle after he failed to comply with defendants’ orders and resisted their attempts to regain control over him. See Clement v. Gomez, 298 F.3d 898, 903 (9th Cir.2002) (“Force does not amount to [a violation of the Eighth Amendment] if it is applied in a good faith effort to restore discipline and order and not maliciously and sadistically for the very purpose of causing harm.”) (citation and internal quotation marks omitted).
Palmer’s remaining contentions are unpersuasive.
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 **
California state prisoner Terrence Brownlee appeals pro se from the district court’s judgment dismissing his 42 U.S.C. § 1983 action alleging improper denial of parole. We have jurisdiction under 28 U.S.C. § 1291. We review de novo the district court’s dismissal pursuant to 28 U.S.C. § 1915A. Ramirez v. Galaza, 334 F.3d 850, 853-54 (9th Cir.2003). We affirm.
The district court properly dismissed Brownlee’s claims because defendants are immune from suit. See Swift v. California, 384 F.3d 1184, 1189 (9th Cir.2004) (holding that parole board officials are entitled to absolute quasi-judicial immunity from suits arising from decisions to grant, deny, or revoke parole); Brown v. Cal. Dep’t of Corrs., 554 F.3d 747, 750 (9th Cir.2009) (holding that prosecutors should be afforded absolute immunity for parole recommendations because parole decisions are a continuation of the sentencing process).
Brownlee’s remaining contentions are unpersuasive.
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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https://www.courtlistener.com/api/rest/v3/opinions/8473634/
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MEMORANDUM **
Jon Richard Baer, a chapter 7 debtor, appeals pro se from the Bankruptcy Appellate Panel’s (“BAP”) order dismissing his appeal as untimely under Federal Rule of Bankruptcy Procedure 8002(a). We have jurisdiction under 28 U.S.C. § 158(d). We review de novo, Wiersma v. Bank of the West (In re Wiersma), 483 F.3d 933, 938 (9th Cir.2007), and we affirm.
The BAP properly dismissed the appeal because Baer filed his notice of appeal more than ten days after entry of the bankruptcy court’s order denying the motion for relief from judgment. See Fed. R. Bankr.P. 8002(a) (requiring that a notice of appeal “be filed with the clerk within 10 days of the date of the entry of the judg*185ment, order, or decree appealed from.”); Greene v. United States (In re Souza), 795 F.2d 855, 857 (9th Cir.1986) (requiring strict compliance with Rule 8002(a)’s 10-day provision). Baer’s arguments about impediments to filing the notice of appeal are unavailing. See Greene, 795 F.2d at 855.
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 **
Oregon state prisoner Martin Allen Johnson appeals pro se from the district court’s judgment dismissing his 42 U.S.C. § 1983 action for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2). We have jurisdiction under 28 U.S.C. § 1291. We review de novo, McHenry v. Renne, 84 F.3d 1172, 1177 (9th Cir.1996), and we affirm.
The district court properly dismissed Johnson’s action for failure to cure the deficiencies in his complaint after the court twice granted him leave to amend and provided specific instructions on how he could amend his complaint to satisfy Federal Rule of Civil Procedure 8. See Fed. R.Civ.P. 8(a) (stating that a complaint must contain a “short and plain statement” of the grounds for the court’s jurisdiction and the claims for relief;) McHenry, 84 F.3d at 1178-79 (concluding that a court may dismiss an action for noncompliance with Rule 8 after considering less drastic alternatives).
Johnson’s motion to supplement the record is denied as moot.
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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*189MEMORANDUM **
California state prisoner Michael James Hicks appeals pro se from the district ■court’s judgment dismissing without prejudice his 42 U.S.C. § 1983 action for failure to exhaust administrative remedies as required by the Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e(a). We have jurisdiction under 28 U.S.C. § 1291. We review de novo a dismissal under 28 U.S.C. § 1915A. Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir.2000). We affirm.
The district court properly dismissed the action because Hicks’s failure to appeal his inmate grievance beyond the first level of review did not constitute proper exhaustion. See Woodford v. Ngo, 548 U.S. 81, 90-91, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006) (explaining that “proper exhaustion” requires adherence to administrative procedural rules); see also CaLCode Regs. tit. 15, § 3084.5 (setting forth the various levels of review in the administrative-grievance system for California inmates).
AFFIRJMED.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
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https://www.courtlistener.com/api/rest/v3/opinions/8473635/
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MEMORANDUM **
Jon Richard Baer, a chapter 7 debtor, appeals pro se from the Bankruptcy Appellate Panel’s (“BAP”) order dismissing his appeal as untimely under Federal Rule of Bankruptcy Procedure 8002(a). We have jurisdiction under 28 U.S.C. § 158(d). We review de novo, Wiersma v. Bank of the West (In re Wiersma), 483 F.3d 933, 938 (9th Cir.2007), and we affirm.
The BAP properly dismissed the appeal because Baer filed his notice of appeal more than ten days after entry of the bankruptcy court’s order denying the motion for relief from judgment. See Fed. R. Bankr.P. 8002(a) (requiring that a notice of appeal “be filed with the clerk within 10 days of the date of the entry of the judg*185ment, order, or decree appealed from.”); Greene v. United States (In re Souza), 795 F.2d 855, 857 (9th Cir.1986) (requiring strict compliance with Rule 8002(a)’s 10-day provision). Baer’s arguments about impediments to filing the notice of appeal are unavailing. See Greene, 795 F.2d at 855.
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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*186MEMORANDUM **
Petitioner Kwan Su Yi (“Yi”), a native and citizen of South Korea, petitions for review of the Board of Immigration Appeals’ (“BIA”) order holding him removable pursuant to 8 U.S.C. § 1227(a)(2)(E)(i) based on his 2003 conviction under Anchorage Municipal Code (“AMC”) § 8.10.010(B)(1) for domestic violence assault. We have jurisdiction pursuant to 8 U.S.C. § 1252, and we grant the petition for review.1
Yi’s conviction under AMC § 8.10.010(B)(1) does not support his removal pursuant to section 1227(a) (2) (E) (i). To be removable under section 1227(a)(2)(E)(i), a conviction must qualify as (1) a “crime of violence” as defined under federal law (2) committed “against a person who has one of several enumerated domestic relationships with the perpetrator.” Fernandez-Ruiz v. Gonzales, 466 F.3d 1121, 1124-25 (9th Cir.2006) (en banc) (citing 8 U.S.C. § 1227(a)(2)(E)(i)) (internal quotation marks omitted). We determine whether a conviction is grounds for removal by applying the categorical and modified categorical approaches. Cuevas-Gaspar v. Gonzales, 430 F.3d 1013, 1017 (9th Cir.2005).
Under the categorical approach, Yi’s conviction does not support the charge of removability because AMC § 8.10.010(B)(1) prohibits both the “intentional” and “reckless” use of force against another, and is therefore broader than the federal definition of a “crime of violence.” Fernandez-Ruiz, 466 F.3d at 1130 (noting that a crime of recklessness cannot meet the generic, federal definition of a “crime of violence”). Moreover, the limited documents in the record of conviction fail to establish whether Yi admitted to intentionally or recklessly assaulting his brother, thus failing to bring the conviction within the generic definition of a “crime of violence” under the modified categorical approach. See United States v. Vidal, 504 F.3d 1072, 1086-87 (9th Cir.2007) (en banc) (explaining that the record of conviction must show that the plea “necessarily” rested on facts “identifying the offense as generic”). Accordingly, we grant Yi’s petition for review, reverse the BIA’s decision affirming the IJ’s order of removal, and remand to the BIA for disposition consistent with this decision.
PETITION GRANTED AND REMANDED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
. The parties are familiar with the facts of this *187case, so we repeat them here only as necessary.
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MEMORANDUM **
Oregon state prisoner Martin Allen Johnson appeals pro se from the district court’s judgment dismissing his 42 U.S.C. § 1983 action for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2). We have jurisdiction under 28 U.S.C. § 1291. We review de novo, McHenry v. Renne, 84 F.3d 1172, 1177 (9th Cir.1996), and we affirm.
The district court properly dismissed Johnson’s action for failure to cure the deficiencies in his complaint after the court twice granted him leave to amend and provided specific instructions on how he could amend his complaint to satisfy Federal Rule of Civil Procedure 8. See Fed. R.Civ.P. 8(a) (stating that a complaint must contain a “short and plain statement” of the grounds for the court’s jurisdiction and the claims for relief;) McHenry, 84 F.3d at 1178-79 (concluding that a court may dismiss an action for noncompliance with Rule 8 after considering less drastic alternatives).
Johnson’s motion to supplement the record is denied as moot.
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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*189MEMORANDUM **
California state prisoner Michael James Hicks appeals pro se from the district ■court’s judgment dismissing without prejudice his 42 U.S.C. § 1983 action for failure to exhaust administrative remedies as required by the Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e(a). We have jurisdiction under 28 U.S.C. § 1291. We review de novo a dismissal under 28 U.S.C. § 1915A. Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir.2000). We affirm.
The district court properly dismissed the action because Hicks’s failure to appeal his inmate grievance beyond the first level of review did not constitute proper exhaustion. See Woodford v. Ngo, 548 U.S. 81, 90-91, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006) (explaining that “proper exhaustion” requires adherence to administrative procedural rules); see also CaLCode Regs. tit. 15, § 3084.5 (setting forth the various levels of review in the administrative-grievance system for California inmates).
AFFIRJMED.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
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SUMMARY ORDER
Marc Munson appeals from a judgment of conviction entered September 25, 2008 in the United States District Court for the Southern District of New York (Koeltl, J.). Following a jury trial, Munson was convicted of conspiracy to distribute and to possess with intent to distribute marijuana in violation of 21 U.S.C. §§ 812, 841(a)(1), and 841(b)(1)(A). He was sentenced to 252 months’ imprisonment and five years’ supervised release.
Munson makes four arguments on appeal: (1) that the district court erred by admitting into evidence certain recordings, made by a witness and co-conspirator, without sufficient authentication as required by Rule 901 of the Federal Rules of Evidence; (2) that the district court erred by admitting into evidence an address book, purportedly owned by a co-conspirator, without sufficient authentication as required by Rule 901 of the Federal Rules of Evidence and in violation of Rule 403 of the Federal Rules of Evidence; (3) that the district court erred by denying his motion seeking a new trial on the ground that the jury deliberated for insufficient time to adequately consider the evidence and properly discharge its duties; and (4) that the district court erred by finding, for purposes of § 3C1.1 of the United States Sentencing Guidelines, that he “obstructed or impeded ... the administration of justice.”
We have considered all of Munson’s arguments and find them to be without merit. With respect to the first two issues set out in the previous paragraph, we review for plain error — excepting the address book’s admissibility under Rule 901, which we review for abuse of discretion — and affirm for substantially the reasons stated by the district court in its opinion and order denying Munson’s motion for a new trial. With respect to the third, we review for abuse of discretion, and find none. See United States v. Rebhuhn, 109 F.2d 512, 516 (2d Cir.1940). With respect to the fourth, we find the district court’s factual findings are adequately supported by evidence in the record and therefore not clearly erroneous. See United States v. Friedberg, 558 F.3d 131, 133 (2d Cir.2009).
*487For the foregoing reasons, the judgment of the district court is hereby AFFIRMED.
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AMENDED SUMMARY ORDER
Corporal Paul Wesolowski and Laura Wesolowski (“Plaintiffs-Appellants”) appeal from a judgment of the United States District Court for the Northern District of New York (Kahn, J.) granting the summary judgment motion of J. Richard Bockelmann, Ulster County Sheriff, Bradford Ebel, Ulster County Corrections Superintendent, and Ray Acevedo, Ulster County Corrections Warden (“Defendants-Appellees”) and dismissing Plaintiffs-Appellants’ claims alleging retaliatory conduct in violation of their First Amendment rights. See 42 U.S.C. § 1983. The district court concluded that Corporal Wesolowski’s report of prisoner abuse was not protected by the First Amendment because he made it pursuant to his official duties and that Laura Wesolowski had presented insufficient evidence to support her claim of retaliation on the basis of her intimate association with him. We assume the parties’ familiarity with the underlying facts, procedural history, and issues presented on appeal.
We review a district court’s grant of summary judgment de novo. Dillon v. Morano, 497 F.3d 247, 251 (2d Cir.2007). We affirm only if, after “resolv[ing] all ambiguities and drawing] all permissible inferences in favor of the non-moving party,” the moving party has shown there are no triable issues of material fact. Jaegly v. Couch, 439 F.3d 149, 151 (2d Cir.2006).
The district court correctly determined that Corporal Wesolowski’s act of taking his written report of the alleged prisoner abuse to his lieutenant was not speech protected by the First Amendment. Under Garcetti v. Ceballos, 547 U.S. 410, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006), “the First Amendment does not prohibit managerial discipline based on an employee’s expressions made pursuant to official responsibilities.” Id. at 424, 126 S.Ct. 1951. Consequently, even if, arguendo, Defendants-Appellees acted against Plaintiffs-Appellants because of Corporal Wesolowski’s reporting, if his reporting were part of his official job responsibilities, Plaintiffs-Appellants would have no claim for injury under the First Amendment. Since determining the scope of such responsibilities is a “practical” rather than formalistic exercise, id., we look beyond an employee’s job description for this purpose and instead examine “the duties an employee actually is expected to perform” in the course of his employment, id. at 424-25, 126 S.Ct. 1951.
Plaintiffs-Appellants contend that Corporal Wesolowski’s action was not pursuant to his official responsibilities because he made the report outside the chain-of-command of the Ulster County Sheriffs Department (“Department”). Specifically, they argue that he was required to report the complaint only to the sergeants who were his direct superiors, so when he brought the report to Lieutenant Scott after the sergeants failed to sign it and allegedly reluctantly directed him to take *489it to a lieutenant, he was acting as a private citizen, not an employee of the Department. As further evidence that the report was not job-related, they cite Lieutenant Scott’s alleged questioning of why Corporal Wesolowski had put the prisoner’s complaint in writing at all, prior to the lieutenant’s receipt of the report and his briefing of Warden Acevedo about the alleged assault.
Although in Garcetti the Supreme Court did not articulate “a comprehensive framework for defining the scope of an employee’s duties in cases where there is room for serious debate,” id. at 424, 126 S.Ct. 1951, we are not faced with such a close question here because none of the allegations regarding the Department officials’ behavior demonstrates that Corporal Wesolowski’s reporting was not job-related. Rather, since he was following the orders of his direct superiors in bringing the report to Lieutenant Scott’s attention and the lieutenant himself pursued the complaint, his actions were consistent with the duties these superiors expected him to perform, even if various statements they made at the time showed they were displeased by the report itself. As a result, the acts of retaliation Plaintiffs-Appellants contend that the Defendants-Appellees took against them because of the reporting are not actionable on the basis that it was constitutionally protected speech.
The district court also correctly concluded that Plaintiffs-Appellants failed to adduce sufficient evidence to support their contention that Defendants-Appellees retaliated against Laura Wesolowski on the basis of her intimate association with Corporal Wesolowski by failing twice to hire her for a stock clerk position at the Department. “In order to survive a motion for summary judgment on a First Amendment retaliation claim, a plaintiff must bring forth evidence showing that [among other things] ... there was a causal connection between the protected activity and the adverse employment action.” Dillon, 497 F.3d at 251. Even interpreted in a light most favorable to the Plaintiffs-Appellants, Laura Wesolowski’s alleged relevant prior experience, favorable job interview for the position, and a civil service score superior to that of another successful candidate do not show that the Department failed to select her because she was married to Corporal Wesolowski. As a result, this claim is also without merit.
For these reasons, the district court’s judgment is AFFIRMED.
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SUMMARY ORDER
Plaintiff-appellant Anthony Perri (“plaintiff’), pro se, appeals from the February 19, 2008 judgment of the United States District Court for the Eastern District of New York (Allyne R. Ross, Judge) dismissing, sua sponte, plaintiffs complaint as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B). We assume the parties’ familiarity with the factual and procedural history of the case.
We do not reach the merits of the District Court’s dismissal of plaintiffs complaint, as we are persuaded by plaintiffs argument that the District Court erred in failing to consider whether plaintiff was an incompetent person entitled to the protections of Rule 17(c) of the Federal Rules of Civil Procedure.
Pursuant to Rule 17(c)(2), “[t]he court must appoint a guardian ad litem — or issue another appropriate order — to protect a[n] ... incompetent person who is unrepresented in an action.” Fed.R.Civ.P. 17(c)(2). As the Fourth Circuit has explained, “What the rule undoubtedly contemplates is that form of mental deficiency which ... affects the person’s practical ability ‘to manage his or her own affairs.’ ” Hudnall v. Sellner, 800 F.2d 377, 385 (4th Cir.1986). A court may not dismiss on the merits the claim of an incompetent person who is not properly represented. Berrios *491v. N.Y. City Hous. Auth., 564 F.3d 130, 135 (2d Cir.2009). We review a decision on whether or not to appoint a guardian ad litem for “abuse of discretion.” See Ferrelli v. River Manor Health Care Ctr., 323 F.3d 196, 200 (2d Cir.2003); cf. In re Sims, 534 F.3d 117, 132 (2d Cir.2008) (“A district court has abused its discretion if it based its ruling on an erroneous view of the law or on a clearly erroneous assessment of the evidence, or rendered a decision that cannot be located within the range of permissible decisions.” (internal citations, alterations, and quotation marks omitted)).
We have held that Rule 17(c) does not require a district court to make a sua sponte determination of competency whenever a question exists regarding a plaintiffs mental capacity; instead, the duty to appoint a guardian ad litem or “make such order as it deems proper,” Fed.R.Civ.P. 17(c)(2), is triggered by “actual documentation or testimony” of mental incompetency, Ferrelli, 323 F.3d at 201 n. 4. As we explained in Ferrelli:
If a court were presented with evidence from an appropriate court of record or a relevant public agency indicating that the party had been adjudicated incompetent, or if the court received verifiable evidence from a mental health professional demonstrating that the party is being or has been treated for mental illness of the type that would render him or her legally incompetent, it likely would be an abuse of the court’s discretion not to consider whether Rule 17(c) applied.
Id. at 201 (citing Hudnall, 800 F.2d at 385).
Here, the District Court was presented with the sort of evidence contemplated by Ferrelli — an evaluation by a mental health professional employed by a public agency that details plaintiffs long history of mental illness, indicates that such illness causes him to have difficulty functioning, and recommends that he be represented by a guardian ad litem in an unrelated state court proceeding. Thus, we find that the District Court, presented with such evidence, erred in failing to consider whether Rule 17(c) applied.
We have considered all of plaintiffs remaining claims and find them to be without merit.
CONCLUSION
For the foregoing reasons, the judgment of the District Court is VACATED, and we REMAND the cause to the District Court for further proceedings in accordance with this order. The District Court shall consider in the first instance whether plaintiff is entitled to a refund of his costs incurred in pursuing this appeal.
The mandate shall issue forthwith.
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SUMMARY ORDER
George Eagan Ginther, pro se, appeals from (1) the dismissal of his complaint, and (2) post-judgment orders denying his motion to correct or amend the judgment and imposing sanctions pursuant to Rule 11 of the Federal Rules of Civil Procedure. This Court reviews de novo an order of dismissal. See Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir.2002). We “apply an abuse-of-discretion standard in reviewing all aspects of a district court’s Rule 11 determination.” Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405, 110 S.Ct. 2447, 110 L.Ed.2d 359 (1990). We assume the parties’ familiarity with the facts and the record of prior proceedings, which we reference only as necessary to explain our decision to affirm.
1. Dismissal of the Complaint
Ginther’s challenge to the dismissal of his complaint seeking, inter alia, reinstatement of benefits under a terminated disability insurance policy or, in the alternative, a refund of all insurance premiums paid to defendant, is without merit. In 2002, this court affirmed a district court judgment entered after trial that Ginther was not entitled to any benefits under the policy at issue. See Provident Life & Cas. Ins. Co. v. Ginther, 51 Fed.Appx. 72 (2d Cir.2002) (“Ginther I”). To the extent Ginther now seeks to raise new arguments supporting entitlement to benefits under the policy, his claims are barred by res judicata. Under this doctrine, “a final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action.” ATSI Commc’n, Inc. v. Shaar Fund, Ltd., 547 F.3d 109, 112 n.2 (2d Cir.2008) (internal quotation marks omitted). The parties are bound “not only as to every matter which was offered and received to sustain or defeat the claim or demand, but as to any other admissible matter which might have been offered for that purpose.” Harborside Refrigerated Servs., Inc. v. Vogel, 959 F.2d 368, 372 (2d Cir.1992) (internal quotation marks omitted). Accordingly, Gin*496ther’s claims for reinstatement of benefits were properly dismissed.
As to Ginther’s claims for a refund of premiums and damages, we agree with the district court that they were compulsory counterclaims in Ginther I and are barred under Fed.R.Civ.P. 13(a). A claim is compulsory if “a logical relationship exists between the claim and the counterclaim and [if] the essential facts of the claims are so logically connected that considerations of judicial economy and fairness dictate that all the issues be resolved in one lawsuit.” Critical-Vac Filtration Corp. v. Minuteman Int’l, Inc., 233 F.3d 697, 699 (2d Cir.2000) (internal quotation marks omitted). Furthermore, “[i]f a party has a compulsory counterclaim and fails to plead it, the claim cannot be raised in a subsequent lawsuit.” Id. As the district court correctly concluded, Ginther’s claims seeking a refund of premiums or damages pertain directly to the insurance policy at issue in Ginther I and therefore “arise[ ] out of the transaction or occurrence that [was] the subject matter of the opposing party’s claim” in that litigation. Fed.R.Civ.P. 13(a)(1)(A); see also Adam v. Jacobs, 950 F.2d 89, 92 (2d Cir.1991) (“[Hinder Second Circuit case law, claims for rescission and enforcement arise out of the same transaction or occurrence.”).
Ginther’s argument that his claims would have been permissive rather than compulsory counterclaims under New York law warrants no different conclusion because Ginther I, commenced and litigated entirely in federal court, was subject to the Federal Rules of Civil Procedure. See Shady Grove Orthopedic Assocs. v. Allstate Ins. Co., 549 F.3d 137, 142-43 (2d Cir.2008). Accordingly, we conclude that the district court properly dismissed Ginther’s claims.
2. Sanctions
Finally, we identify no abuse of discretion in the district court’s imposition of Rule 11 sanctions, which are permitted against a litigant who submits a pleading “to harass, cause unnecessary delay, or needlessly increase the cost of litigation.” Fed.R.Civ.P. 11(b)(1). The standard for triggering the award of fees under Rule 11 is “objective unreasonableness.” Salovaara v. Eckert, 222 F.3d 19, 34 (2d Cir.2000). Here, having already lost Ginther I both in the district court and in this Court, having been correctly informed in the present case that his claims in this action were barred by res judicata or should have been raised as compulsory counterclaims, and having already been sanctioned by a state court1 for raising baseless misconduct allegations against Provident’s then-attorney, Ginther nevertheless renewed the same substantive claims in a dilatory motion and imported frivolous misconduct allegations from his state case into this federal litigation. On this record, even giving due consideration to Ginther’s pro se status, we conclude that the district court reasonably determined that Ginther sought to harass Provident and its counsel, delay the conclusion of this case, and needlessly increase the cost of litigation, and that such conduct was objectively unreasonable under Rule 11.
We have considered Ginther’s other arguments on appeal and find them to be without merit. Accordingly, the judgment of the district court is AFFIRMED.
. See Ginther v. Provident Life & Cas. Ins. Co., No. 05-CV-0238E, 2007 WL 925751, at *3 & n. 3 (W.D.N.Y. Mar.26, 2007) (noting state court sanctions).
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SUMMARY ORDER
Philip Waisonovitz appeals from a judgment dismissing on summary judgment his claims under the Federal Employer’s Liability Act (“FELA”) against Metro-North Commuter Railroad (“Metro-North”) for negligent infliction of emotional distress and negligent supervision. We assume the parties’ familiarity with the underlying facts, the procedural history, and the issues presented for review.
The FELA provides that
[ejvery common carrier by railroad ... shall be liable in damages to any person suffering injury while he is employed by such carrier ... for such injuiy or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, ... or other equipment.
45 U.S.C. § 51. Claims for negligent infliction of emotional distress, which seek recovery for mental or emotional injury, are cognizable under the FELA. Consol. Rail Corp. v. Gottshall, 512 U.S. 532, 549-50, 114 S.Ct. 2396, 129 L.Ed.2d 427 (1994).
The “zone of danger” test is used to analyze such claims. Id. at 556, 114 S.Ct. 2396. Recovery is thereby limited “to those plaintiffs who sustain a physical impact as a result of a defendant’s negligent conduct, or who are placed in immediate risk of physical harm by the conduct.” Id. at 547, 114 S.Ct. 2396. Phrased differently, “a worker within the zone of danger of physical impact will be able to recover for emotional injury caused by fear of physical injury to himself, whereas a worker outside the zone will not.” Id. at 556, 114 S.Ct. 2396.
In his deposition, Waisonovitz testified that he did not see Ard’s body between the tracks until the train came to a stop, and that only then did he learn that Ard had been struck by the train. He also admitted that he suffered no physical harm, nor did he anticipate or fear suffering such harm. These statements place him outside the zone of danger.
In opposing Metro-North’s second motion for summary judgment, Waisonovitz recast his own prior deposition testimony as “questionable,” contending that “[i]t only makes sense that [he] would see Ard’s body as soon as the car in which [he] was located passed completely over Ard’s body.” Thus, having allegedly seen Ard’s body while the train was still moving, Waisonovitz argues, he entered a state of shock, lost control of the train, and consequently entered Gottshall’s zone of danger.
Waisonovitz relies on the data collected from the train’s “event recorder” (similar to an airplane’s black box), which purportedly indicates that Waisonovitz saw Ard’s body on the tracks after the car in which Waisonovitz was located passed over it. Waisonovitz also relies on his affidavit in which he interpreted the event recorder data as demonstrating a “highly unusual” braking pattern.
The district court properly concluded that this zone of danger theory was unsupported by the evidence. Waisonovitz v. Metro N. Commuter R.R., 550 F.Supp.2d. 293, 298 (D.Conn.2008). Not only does *499this theory contradict Waisonovitz’s pri- or — undeniably clear — deposition testimony, but in his affidavit Waisonovitz conceded his inability to explain any cause for his allegedly erratic braking. Summary judgment was therefore appropriate. See Gant ex rel. Gant v. Wallingford Bd. of Educ., 195 F.3d 134, 144 (2d Cir.1999).
Waisonovitz also brings a negligent supervision claim under the FELA against Metro-North. His brief, however, makes no supporting argument. He first notes: “The zone of danger test must be modified to fit into the factual scenario of a negligent supervision claim given that an employer’s awareness of an employee’s negligent conduct ... is different than in a claim of negligent infliction of emotional distress.” He then continues: “The failed duty to act which gives rise to negligent supervision puts the employer in a different position than the failed duty which gives rise to negligent infliction of emotional distress. Given these differences, the zone of danger [test] is applied differently, and the scope is different.”
Waisonovitz does no more than raise questions. He has therefore waived any such claim. See Tolbert v. Queens Coll., 242 F.3d 58, 75 (2d Cir.2001) (“It is a ‘settled appellate rule that issues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived.’ ”) (quoting United States v. Zannino, 895 F.2d 1, 17 (1st Cir.1990)); Norton v. Sam’s Club, 145 F.3d 114, 117 (2d Cir.1998) (“Issues not sufficiently argued in the briefs are considered waived and normally will not be addressed on appeal.”).
Finding no merit in Waisonovitz’s remaining arguments, we hereby AFFIRM the judgment of the district court.
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SUMMARY ORDER
Defendant-appellant Constantine Stamoulis appeals from an order entering judgment following a jury trial that found defendant liable for securities fraud in an insider trading case brought by plaintiffappellee the Securities and Exchange Commission (“SEC”). On appeal, defendant argues that there was insufficient evidence to sustain the jury’s finding of liability with respect to the following issues: (1) that the information defendant traded upon was in fact non-public information and (2) that the information was disclosed through a breach of fiduciary duty. Defendant also contends that the District Court improperly admitted evidence pertaining to these issues. We assume the parties’ familiarity with the underlying facts, the procedural history, and the issues on appeal.
We review de novo challenges to the sufficiency of the evidence. See, e.g., United States v. Rangolan, 464 F.3d 321, 324 (2d Cir.2006). It is well-established law that when a defendant has failed to assert his sufficiency of the evidence argument by motion for judgment as a matter of law or otherwise, we will not review those claims on appeal absent “extraordinary circumstances.” See Jacques v. DiMarzio, Inc., 386 F.3d 192, 199 (2d Cir.2004). Here, defendant failed to move for judgment as a matter of law or to otherwise argue in the District Court that the SEC had not introduced sufficient evidence to support a finding of liability. We may “overlook such a default in order to prevent manifest injustice in cases where a jury’s verdict is wholly without legal support.” Pahuta v. Massey-Perguson, Inc., 170 F.3d 125, 129 (2d Cir.1999) (internal quotation marks and citations omitted). Stamoulis does not urge us to overlook his failure to move under Rule 50 of the Federal Rules of Civil Procedure, nor do we perceive that the jury verdict is “wholly without legal support.” Id.
Even if defendant had preserved his sufficiency of the evidence claim, a reviewing court must “credit every inference that could have been drawn” in favor of the party defending the verdict, United States v. Reifler, 446 F.3d 65, 94 (2d Cir.2006), and uphold the jury verdict so long as any rational trier of fact could have found the essential elements necessary for liability, see United States v. Rodriguez, 392 F.3d 539, 544 (2d Cir.2004). We find no basis to overturn the jury’s verdict here.
Defendant argues for the first time on appeal that the admission of Michael Nicolaou’s testimony was improper due to the fact that the testimony was judged to be hearsay in parallel criminal litigation. By failing to raise this issue in the District Court, defendant has waived the issue. See Duamutef v. O’Keefe, 98 F.3d 22, 25 (2d Cir.1996).
Defendant also argues that the District Court “abused its discretion” when it admitted John Tsiforis’s plea allocution. We find this argument to be without merit. We review a district court’s ruling to admit or exclude evidence under a deferential *501“abuse of discretion” standard, and “will reverse [a district court] only where a ruling to admit or exclude evidence is manifestly erroneous.” See United States v. Samet, 466 F.3d 251, 254 (2d Cir.2006) (internal quotation marks omitted). Defendants must also show that any error in admitting the challenged evidence was not harmless error. An error is harmless “if the appellate court can conclude with fair assurance that the improperly admitted evidence did not substantially influence the jury.” Hynes v. Coughlin, 79 F.3d 285, 291 (2d Cir.1996). Even assuming that the challenged testimony was improperly admitted
[w]e will [nevertheless] not grant a new trial unless we find that the introduction of inadmissible evidence was a clear abuse of discretion and was so clearly prejudicial to the outcome of the trial that we are convinced that the jury has reached a seriously erroneous result or that the verdict is a miscarriage of justice. We measure prejudice by assessing error in light of the record as a whole.
Phillips v. Bowen, 278 F.3d 103, 111 (2d Cir.2002).
We cannot say that the challenged testimony yielded a “seriously erroneous” result in the finding of liability here. Accordingly, we find that the District Court did not “abuse its discretion” in admitting the contested evidence.
CONCLUSION
For the reasons stated above, the judgment of the District Court is AFFIRMED.
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SUMMARY ORDER
Plaintiff-appellant Carol Konits appeals an order from the United States District Court for the Eastern District of New York (Wexler, J.), entered on August 18, 2008, awarding attorneys’ fees as a prevailing party pursuant to the Civil Rights *503Attorney’s Fees Act of 1976, 42 U.S.C § 1988(b). We assume the parties’ familiarity with the facts, procedural background, and issues on appeal.
We review a district court’s award of attorneys’ fees for abuse of discretion. Garcia v. Yonkers Sch. Dist., 561 F.3d 97, 102 (2d Cir.2009). “A district court necessarily abuses its discretion if it bases its ruling on an erroneous view of the law or on a clearly erroneous assessment of the record.” LeBlanc-Sternberg v. Fletcher, 143 F.3d 748, 757 (2d Cir.1998).
In a successful suit under 42 U.S.C. § 1983, “the court, in its discretion, may allow the prevailing party ... a reasonable attorney’s fee as part of the costs....” 42 U.S.C. § 1988(b)(2009). “[A] prevailing party is one who has favorably effected a material alteration of the legal relationship of the parties by court order.” Garcia, 561 F.3d at 102 (internal quotations omitted).
In determining reasonable attorneys’ fees, a district court must: (1) set a reasonable hourly rate, bearing in mind all of the case specific variables, and (2) use the reasonable hourly rate to calculate a “presumptively reasonable fee.” Arbor Hill Concerned Citizens Neighborhood Ass’n v. County of Albany, 522 F.3d 182, 190 (2d Cir.2008).
“[T]he most critical factor in a district court’s determination of what constitutes reasonable attorney’s fees in a given case is the degree of success obtained by the plaintiff.” Barfield v. N.Y. City Health & Hosps. Corp., 537 F.3d 132, 152 (2d Cir.2008) (citations and quotations omitted). “That the plaintiff is a ‘prevailing party’ therefore may say little about whether the expenditure of counsel’s time was reasonable in relation to the success achieved.” Hensley v. Eckerhart, 461 U.S. 424, 436, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983). The district court must determine a reasonable hourly rate for plaintiff’s attorneys, defined by this Court as the rate that a paying client would be willing to pay. Arbor Hill, 522 F.3d at 190. A district court must consider the following factors enumerated in Johnson v. Ga. Highway Express, Inc., 488 F.2d 714 (5th Cir.1974), abrogated on other grounds by Blanchard v. Bergeron, 489 U.S. 87, 92-93, 96, 109 S.Ct. 939, 103 L.Ed.2d 67 (1989) (declining to limit fee award to amount stipulated in attorney-client agreement): (1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the level of skill required to perform the legal service properly; (4) the preclusion of employment by the attorney due to acceptance of the case; (5) the attorney’s customary hourly rate; (6) whether the fee is fixed or contingent; (7) the time limitations imposed by the client or the circumstances; (8) the amount involved in the case and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the “undesirability” of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases. See Johnson, 488 F.2d at 717-19. The court must also “bear in mind that a reasonable, paying client wishes to spend the minimum necessary to litigate the case effectively.” Arbor Hill, 522 F.3d at 190. Finally, the district court must account for the reputational benefits that might accrue to attorneys associated with the case. Id.
The district court is required to present a “concise but clear” record for review by the appellate court. Hensley, 461 U.S. at 437, 103 S.Ct. 1933. “The court must inform the reviewing court as to how the [legal] standard has been applied to the facts as the court has found them. If the *504court fails to make findings and to give an explanation, and the reason for the court’s ruling is not clear to us, we will remand for findings and an explanation.” Orchano v. Advanced Recovery, Inc., 107 F.3d 94, 99 (2d Cir.1997).
Reduction Based on Limited Success1
The district court applied a one-third reduction in the hours before March 2, 2004, because “the equal protection and due process claims dismissed by Judge Platt ... are sufficiently separable from the First Amendment retaliation claim on which plaintiff prevailed.” “[T]he court may exclude any hours spent on severable unsuccessful claims.” Green v. Torres, 361 F.3d 96, 98 (2d Cir.2004) (per curiam). In this instance, however, the court did not provide a sufficient explanation for its finding that the claims are “sufficiently separable” so as to be a basis for reducing the attorneys’ fee award. For example, there is no indication of what separable hours were expended on the dismissed claims. Nor did the court explain its calculation of the one third reduction based on its conclusion that the claims were separable. Because we do not have such explanations to review, we cannot tell whether the court abused its discretion in reaching the determination to reduce by one third the attorney hours expended before March 2, 2004.
Next, the district court reduced the total attorneys’ fees by 25% because the plaintiff only succeeded against one of six defendants. The Ninth Circuit has found that when a plaintiff only prevails against one of many defendants, even when the claims against them are related, she has had limited success in a lawsuit. See Webb v. Sloan, 330 F.3d 1158, 1169-70 (9th Cir.2003); see also Torres, 361 F.3d at 96 (finding no abuse of discretion where attorney fees were reduced to reflect plaintiffs limited success where on “the eve of trial” plaintiff withdrew claims against several defendants). Here, discretionary reductions for limited success may be appropriate, but the district court did not provide an adequate explanation for the reductions, particularly in view of the judge’s comparatively limited involvement in the case which would reduce his exposure to counsel’s work over the full life of the litigation and thus inhibit his consideration of the Johnson factors. On the record before us we do not have information on how the court compensated for its lack of exposure to the full case and reached its determination with respect to the relevant Johnson factors so as to reduce the award by 25%. Thus, we are unable to review the district court’s analysis to determine whether there was an abuse of discretion.
Determination of Reasonable Fees
The district court awarded an hourly rate of $250 per hour for work performed before December 31, 2005, and $300 per hour for work performed after January 1, 2006. We find it impossible, however, to determine from the record what factors the district court considered in determining the reasonableness of those rates. The record reflects only a vague reference to “the approximate market rate for attorneys with like experience and skill ... [and] the nature and circumstances of this action.... ” Although these two rea*505sons resemble two of the Johnson factors, on this record we cannot tell whether the district court ultimately applied the proper legal standard or whether it made an erroneous factual finding. The court made no reference to any specific Arbor Hill factors, nor did it explain why there was a discrepancy in rates allowed for hours billed before and after December 31, 2005.2 That is, there is not a sufficient explanation for us to review whether the district court abused its discretion.
Accordingly, we vacate the judgment of the district court and remand this case for further explanation of (1) the basis for reduction of fees for “sufficiently separable” claims upon which plaintiff prevailed, (2) the basis for reduction of fees for plaintiffs limited success against one of several defendants, and (3) the rate applied in the fees calculation.
For the reasons discussed, the judgment of the district court is VACATED and REMANDED.
. The district court reduced attorneys' fees by 10% for vague billing entries, hours excessive to reasonable prosecution of the action, hours not reasonably related or necessary to the prosecution of the action, and hours billed at reduced rates for clerical and paralegal tasks. The appellants have not challenged this reduction on appeal, and we therefore do not disturb the lower court's ruling.
. We are particularly left uncertain by the selection of different rates for different time periods, which suggests the use of historic rather than current rates. See Fletcher, 143 F.3d at 764 ("[Cjurrent rates, rather than historical rates, should be applied in order to compensate for the delay in payment.").
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SUMMARY ORDER
Petitioner Alvaro Garcia Portillo (“petitioner”) seeks review of a September 29, 2008, 2008 WL 4647012, order and decision of the BIA, affirming the November 7, 2006 order and decision of the Immigration Judge (Strauss, J.), denying petitioner’s request for a continuance and ordering petitioner removed to Peru. We assume the parties’ familiarity with the underlying facts and procedural history.
The issue in this appeal is whether the BIA erred in holding that the Immigration Judge (“IJ”) was correct in denying a continuance to allow petitioner time to wait for a visa number to become available. Petitioner is the beneficiary of an approved labor certification and an approved 1-130 petition. However, petitioner cannot apply to adjust his status to that of lawful permanent resident until a visa is available. Because of the backlog of visa applications, an applicant sometimes must wait years for a visa to become available and there is no way to predict exactly how long an applicant will be required to wait. Similar delays plague other steps in the process. Thus, the question often arises of when and for how long an IJ should continue removal proceedings to allow for an alien to become eligible for adjustment of status.
We review an IJ’s denial of a continuance for abuse of discretion. See Sanusi v. Gonzales, 445 F.3d 193, 199 (2d Cir.2006). Under this standard, “[a]n IJ would [ ] abuse his discretion in denying a continuance if (1) [his] decision rests on an error of law (such as application of the wrong legal principle) or a clearly erroneous factual finding or (2) [his] decision — though not necessarily the product of a legal error or a clearly erroneous factual finding— cannot be located within the range of permissible decisions.” Morgan v. Gonzales, 445 F.3d 549, 551-52 (2d Cir.2006) (quoting Zervos v. Verizon New York, Inc., 252 F.3d 163, 169 (2d Cir.2001)).
Using this standard, we have affirmed several denials of continuances to allow for adjudication of pending labor certifications. See Morgan, 445 F.3d at 553; Elbahja v. Keisler, 505 F.3d 125, 129 (2d Cir.2007). In Elbahja, a case cited by the BIA in its *508decision below, we affirmed the denial of a continuance on the grounds that Elbahja was “at the first step in [a] long and discretionary process” and that petitioner had not acted in good faith in asking for a series of continuances for a variety of reasons during the proceedings. 505 F.3d at 129. Likewise, in Morgan, we affirmed, stating that “we will not, nor should an IJ be required to, indulge Morgan’s attempts to introduce needless delay into what are meant to be ‘streamlined’ proceedings.” Morgan, 445 F.3d at 553.
However, in Rajah v. Mukasey, we vacated the BIA’s order and remanded to the BIA so that it could develop standards for when a continuance should be granted to allow for adjudication of pending labor certifications. 544 F.3d 449, 456 (2d Cir.2008). Noting that Rajah was not himself responsible for any of the delays and that his certification had actually been approved while the case was on appeal, we raised the question of “whether a system that specifically provides for [adjustment of status] on the basis of employment certification can escape being arbitrary and capricious where it does not afford adequate time for a petitioner to obtain such labor certifications, or where there is no reasoned standard for what length of time would be adequate.” Id. at 454 (quoting Thapa v. Gonzales, 460 F.3d 323, 336 n. 5 (2d Cir.2006)). We stated that while there are some cases in which the denial of a continuance is clearly within the discretion of the IJ, see, e.g., Elbahja, 505 F.3d 125, other cases are less clear, and that “[i]t is for the BIA in the first instance thus to identify the boundaries of the discretion that its judges may exercise.” Id. at 456.
Although the BIA has not yet proffered such standards in response to Rajah, in In Re Hashmi 24 I. & N. Dec. 785 (BIA 2009), the BIA did announce the relevant factors when a petitioner seeks a continuance to await adjudication of an 1-130 in the family-based visa context. Hashmi was decided after the IJ’s decision and the BIA’s order affirming the decision in this case. Thus, we do not know whether the BIA would have applied the Hashmi factors or, either in this case or on remand in Rajah, whether the BIA would have developed different standards for continuances in the labor-based visa context. We find it prudent, therefore, to remand to the BIA to decide in the first instance whether the denial of a continuance was justified in this case.
Respondent argues that a remand is unnecessary because a continuance to wait for a visa number would have been futile given the IJ’s conclusion that petitioner had not presented sufficient evidence that he would be eligible for adjustment of status when a visa number became available. See Chen v. U.S. Dept. of Justice, 471 F.3d 315, 338 (2d Cir.2006) (“[A]n error does not require a remand if the remand would be pointless because it is clear that the agency would adhere to its prior decision in the absence of error.”). We conclude, however, that the IJ made clearly erroneous factual findings in assessing whether there was sufficient evidence that the petitioner was eligible for adjustment of status, and, therefore, that the IJ’s denial of a continuance on that ground was an abuse of discretion.
Petitioner, having admitted to being present in the United States without being admitted or paroled, would normally be ineligible to apply for adjustment of status. However, petitioner argued before the IJ that he was eligible for adjustment under 8 U.S.C. § 1255(i), which allows an alien “who is the beneficiary ... of (i) a petition for classification under section 1154 of this title that was filed with the Attorney General on or before April 30, 2001; or (ii) an application for a labor certification under section 1182(a)(5)(A) of this title that was *509filed pursuant to the regulations of the Secretary of Labor on or before such a date” to apply for adjustment of status. 8 U.S.C. § 1255(i). Although petitioner’s labor certification was filed after April 30, 2001, he alleges that his wife filed a 1-130 petition under 8 U.S.C. § 1154 prior to that date, which would mean that he was “grandfathered” under Section 1255(i).2
At the November 7, 2006 hearing before the IJ, petitioner submitted as proof that his wife had filed the 1-130 petition the following evidence: a return receipt card stamped as received by the Vermont Service Center and a cashed check made out for the then-required amount for an 1-130 petition in April 2001 of $110 bearing the Vermont Service Center’s stamp and a notation of a case number. In addition, the ICE trial attorney submitted an internet printout from the USCIS Case Status Online for an 1-130 petition with the same case number as the one printed on the check. The printout indicated that the last activity in the case took place on January 6, 2005, nearly four years after the petition was initially filed.
The ICE trial attorney asked for a merits hearing on the grandfathering issue, to which the IJ responded, “I’m not going to set it for a merits hearing. I can’t do that.” On the basis of petitioner’s evidence and the ICE trial attorney’s statement that “I don’t have any 1-130 in the file,” the IJ concluded in his oral decision that “[t]he Court does not find there’s sufficient evidence to show that he would even be grandfathered under 245-1.”
However, the IJ neglected to acknowledge that the check had been cashed and hand-inscribed with a case number, indieating that it likely was sent to, and received by, the Vermont Service Center. On review, the BIA concluded that the certified mail return receipt card was “not signed by the recipient,” without acknowledging that the copy of the mail receipt in the record shows that it was stamped by the recipient. Finally, the IJ seemed to find it significant that the internet printout from USCIS Case Status Online did not bear petitioner’s name. But, neither the IJ nor the BIA mentioned that the cashed check and the internet print-out bore the same case number, raising a reasonable inference that the 1-130 was actually filed. Given these factual errors, we remand to the BIA to determine whether petitioner would be eligible for adjustment of status based on all of the evidence presented.
We are further persuaded that remand is appropriate because, putting aside the clearly erroneous factual findings, the only other reason given by the IJ for the denial of the continuance was that “such a long continuance is simply not warranted.” However, the BIA indicated in Hashmi that “[t]he number and length of prior continuances are not alone determinative” in deciding whether to grant a continuance. 24 I. & N. Dec. at 794. Although, as we explained above, it is unclear whether the Hashmi factors also apply in the labor-based visa context, we can think of no reason to make such a distinction between the two visa categories. In this case, petitioner was not responsible for the delay and this was his first request for a continuance to wait for visa availability. We believe these facts counsel in favor of granting a continuance, although we leave *510that determination to the BIA to make in the first instance.3
We therefore GRANT the petition for review, VACATE the BIA’s decision, and REMAND to the BIA for further proceedings consistent with this opinion.
. Under the regulations,
[a] visa petition that was properly filed on or before April 30, 2001, and was approvable when filed, but was later withdrawn, denied, or revoked due to circumstances that have arisen after the time of filing, will preserve the alien beneficiary's grandfathered status if the alien is otherwise eligible to file an application for adjustment of status under section 245(i) of the Act [8 U.S.C. § 1255(i) ].
8 C.F.R. § 245.10(a)(3).
. We also note that several of the Hashmi factors, if applicable in petitioner's case, counsel in favor of granting a continuance. For instance, petitioner already has an approved labor certification and 1-130 petition. Hence, petitioner’s visa petition is not only "prima facie approvable," it is approved. Hence, petitioner’s application for adjustment of status is much less speculative than Elbahja’s, who did not even have an approved labor certification. See Elbahja, 505 F.3d at 129. Visas will certainly become available in petitioner's visa category. The only question is when, not if.
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https://www.courtlistener.com/api/rest/v3/opinions/8473688/
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SUMMARY ORDER
Defendant-Appellant Edward Tucker challenges a March 28, 2008 judgment of conviction in the district court sentencing him to concurrent terms of 151 months’ imprisonment on his guilty plea to conspiring with others to distribute and possess with intent to distribute 100 kilograms or more of marijuana, see 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), 846, and 120 months’ imprisonment upon each of his guilty pleas to possessing a firearm after having been convicted of a felony in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2); possessing ammunition after having been convicted of a felony in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2); retaliating against a federal witness in violation of 18 U.S.C. §§ 1513(b)(2) and 2; and concealment money laundering in violation of 18 U.S.C. §§ 1956(a)(l)(B)(i) and 2. Tucker argues that his sentence must be vacated and his case remanded because he did not admit during his plea proceedings that his drug conspiracy involved at least 100 kilograms of marijuana, a required element. We assume the parties’ familiarity with the underlying facts, procedural history, and specification of the issues on appeal.
Rule 11(b)(3) of the Federal Rules of Criminal Procedure provides that “[bjefore entering judgment on a guilty plea, the court must determine that there is a factual basis for the plea.” Fed.R.Crim.P. 11(b)(3). In determining whether a Rule 11 violation has occurred and in assessing its effect, this Court considers the entire record. United States v. Torrellas, 455 F.3d 96, 103 (2d Cir.2006); United States v. Maher, 108 F.3d 1513, 1521 (2d Cir.1997). “The court may rely on defendant’s own admissions, information from the government, or other information appropriate to the specific case.” United States v. Andrades, 169 F.3d 131, 136 (2d Cir.1999). Where an appellant fails to object to an alleged Rule 11 error before the district court, we review for plain error, meaning that “the defendant must demonstrate, inter alia, that (1) there was error, (2) the error was plain, [and] (3) the error prejudicially affected his substantial rights.” Torrellas, 455 F.3d at 103 (internal quotation marks omitted, alteration in original); see also United States v. Olano, 507 U.S. 725, 731-32, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993); United States v. Thomas, 274 F.3d 655, 660 (2d Cir.2001) (in banc) (Failure “to submit the question of drug type and quantity to the jury is subject to plain error review.”). To carry his burden of showing that a violation affected substantial rights, the appellant must establish that there is a “reasonable probability that, but for the error, he would not have entered the plea.” United States v. Vaval, *514404 F.3d 144, 151 (2d Cir.2005) (quoting United States v. Dominguez Benitez, 542 U.S. 74, 83, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004)). “Where these conditions are met, ‘an appellate court may then exercise its discretion to notice a forfeited error, but only if ... the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.’ ” Id. at 151 (quoting Johnson v. United States, 520 U.S. 461, 467, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997)).
Tucker did not allocute to a specific quantity of marijuana at the time he entered his plea, nor did the prosecutor specify the quantity of marijuana that Appellant had possessed or distributed during the course of the conspiracy. The Government did state, however, that the Appellant’s co-defendant, Corey Fleury, had supplied Tucker with approximately $28,000 worth of marijuana two times per month for about two years preceding his arrest (a fact from which some inference as to quantity might be inferred) and that Tucker then sold this marijuana to local dealers and customers in the Rome, New York area. Both the Appellant and his attorney agreed, in substance, that this figure and the larger factual recitation of which it was a part was a “fair statement” of what had happened. Tucker affirmed, moreover, that he had read the indictment (which alleges that the quantity of marijuana involved in the conspiracy exceeded 100 kilograms) and that he had discussed the charges with his attorney and fully understood them. The maximum penalties for a conspiracy involving at least 100 kilograms were placed on the record. Tucker averred that he understood the penalties that could be imposed and that he still wished to plead guilty.
Tucker raised no Rule 11 objection during the plea proceedings and he did not subsequently move to withdraw his plea. He did later file a sentencing memorandum that states, in relevant part, that his plea “omits any reference to the amount of drugs involved.” At sentencing, however, the district court asked Appellant’s counsel whether he objected to a finding of drug quantity of 100 kilograms. Counsel responded, ‘Your Honor, I believe that’s an accurate number.” The district court concluded that the applicable Guidelines range was 262 to 327 months’ imprisonment before imposing a sentence substantially below that range.
We have held that, “[wjhere a defendant, before sentencing, learns of information erroneously omitted in violation of Rule 11 but fails to attempt to withdraw his plea based on that violation, there can be no reasonable probability that, but for the [Rule 11 violation], he would not have entered the plea, and the plain error standard is not met.” Vaval, 404 F.3d at 152 (internal quotation marks omitted). See also Dominguez Benitez, 542 U.S. at 85, 124 S.Ct. 2333 (noting that statements made at sentencing hearing are relevant to plain error analysis). Tucker attempts to avoid this case law by arguing that he raises no challenge to his plea at all, but only to the purported illegality of the 151-month sentence — a sentence he alleges was unlawful on the theory that his allocution, absent any admission as to quantity, supported only a conviction pursuant to 21 U.S.C. § 841(b)(1)(D), for which a ten-year maximum sentence is prescribed.
This argument is unavailing. Tucker relies on United States v. Gonzalez, 420 F.3d 111 (2d Cir.2005), and United States v. Yu, 285 F.3d 192 (2d Cir.2002). In both of those cases, however, the defendants, unlike Tucker, contested and explicitly refused to allocute to the charged drug quantity throughout their plea proceedings. See Gonzalez, 420 F.3d at 116-17; Yu, 285 F.3d at 195. Moreover, in the intervening *515period between the defendants’ pleas and their sentencings in those cases, the Supreme Court’s decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), made clear that facts increasing the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt, which this Court subsequently held to encompass drug quantities in the context of the enhanced penalty provisions of 21 U.S.C. § 841. See Thomas, 274 F.3d at 660. Given the defendants’ unwillingness to allocute to the quantity of drugs involved in their offenses, both cases raised the question whether the defendants would have pleaded guilty had they understood that drug quantity was an element that must be proved beyond a reasonable doubt. Indeed, Gonzalez had unsuccessfully attempted to withdraw his plea on Apprendi grounds. See Gonzalez, 420 F.3d at 118-19.
Here, in contrast, Tucker cannot claim to have been affected by any such confusion. He expressly affirmed that he had read the indictment, which specifically avers that “[t]he quantity of marijuana involved in the conspiracy ... exceeded 100 kilograms”; he acknowledged that his attorney had gone over each charge with him and that he understood them all; and the penalties for a conspiracy involving at least 100 kilograms of marijuana were placed on the record and Tucker stated that he understood them. Given these circumstances and the facts to which Tucker did allocute, it is clear that he unequivocally pleaded guilty to violating 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), and 846, and not to some lesser crime. As Tucker indicated via his own sentencing memorandum, the law regarding which facts must be submitted to a jury was clear at the time of his plea, yet he made no effort to withdraw it. Tucker has established neither plain error in his Rule 11 proceeding nor any illegality in the sentence imposed as a result.
We have considered all of Tucker’s other arguments and find them to be without merit. For the foregoing reasons, the judgment of the district court is hereby AFFIRMED.
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https://www.courtlistener.com/api/rest/v3/opinions/8473690/
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SUMMARY ORDER
Jeffrey Etess, a dentist, appeals from the judgment entered July 21, 2008, sentencing him, upon his plea of guilty, to imprisonment for one year and one day, for conspiring to sell a controlled substance containing Dihydrocodeine, commonly known as Vicodin. The District Court departed downward, upon the Government’s submission of a cooperation motion pursuant to U.S.S.G. § 5K1.1, from a Guidelines range of 30 to 37 months.
We assume the parties’ familiarity with the facts and procedures of this case.
The Appellant contends that the District Court made mistakes of fact in its July 30, 2008, memorandum, denying a motion for reduction of sentence. The “mistakes” are alleged to be the reference to the Appellant as a “drug dealer,” the assertion that the sale of 157,000 Vicodin pills would net the Appellant “almost one million dollars,” and the assertion that the Appellant was selling drugs to patients. The use of the label “drug dealer” was not a mistake in view of the evidence showing sale of a large quantity of Vicodin pills. Whether or not there were sales to patients, the District Court stated that the Appellant “was selling drugs to patients and non-patients.” Even if there were no sales to patients, the sentence was fully justified by the sales to non-patients, and there is no indication that the District *517Court gave any weight at sentencing to the alleged mistake in the post-sentencing statement concerning sales to patients. Finally, the Appellant does not challenge the accuracy of the District Court’s calculation of the value of the pills he possessed, arguing only that many of the pills were not sold but destroyed. However, the Appellant was convicted of possession with intent to distribute, and he destroyed the pills only after he was interviewed by federal agents. The District Court could reasonably have inferred that without the intervention of the authorities, the Appellant would have sold the drugs, which had a substantial street value.
The Appellant also contends that the District Court erred in not making a departure (beyond the cooperation departure) based on diminished capacity. See U.S.S.G. 5K2.13. However, the departure was properly rejected because the Appellant failed to establish the required causal link between the diminished capacity and the charged offense, see United States v. Valdez, 426 F.3d 178, 184 (2d Cir.2005), and because such a departure is not available if the claimed reduced mental capacity was caused by the voluntary use of drugs, see U.S.S.G. § 5K2.13.
We have considered all of the Appellant’s remaining contentions and conclude that they lack merit.
Accordingly, we affirm the judgment of the District Court.
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https://www.courtlistener.com/api/rest/v3/opinions/8473692/
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SUMMARY ORDER
ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED.
John E. Howard, III was convicted of possessing with the intent to distribute more than five hundred grams of cocaine in violation of 21 U.S.C. § 841(a)(1) & (b)(1)(B). He was sentenced principally to 72 months imprisonment. Petitioner now appeals from his July 8, 2008 judgment of conviction. On appeal, appellant argues for suppression of evidence obtained pursuant to wiretap orders of April 21 and May 20, 2004. We assume the parties’ familiarity with the underlying facts, procedural history, and specification of issues for review.
Appellant first contends that the wiretap orders did not comply with the restrictions *519of Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (“Title III”), 18 U.S.C. §§ 2510-2522, because the Government (a) failed to adequately identify Appellant as one of the persons whose communications would be intercepted, and (b) failed to establish that alternative investigative techniques were used or attempted before appellant’s phone was tapped. We grant considerable deference to the issuing judge’s decision to authorize a wiretap, ensuring only that the facts in the wiretap application were “minimally adequate” to support the determination. United States v. Miller, 116 F.3d 641, 663 (2d Cir.1997).
To comply with the identification requirement of Title III, the Government need only identify an individual when it has “probable cause to believe that the individual is engaged in the criminal activity under investigation and expects to intercept that individual’s conversations over the target telephone.” United States v. Donovan, 429 U.S. 413, 428, 97 S.Ct. 658, 50 L.Ed.2d 652 (1977) (emphasis added). Here, appellant was properly omitted from the affidavit of April 21 because there is no evidence that the Government had probable cause to suspect appellant at this date. Appellant was correctly identified in the affidavit of May 20.
To comply with the “necessity requirement” of Title III, wiretap applications must include a “full and complete statement” explaining if alternative investigative techniques have been tried and failed, why they “reasonably appear” unlikely to succeed if tried, or that they are too dangerous. 18 U.S.C. § 2518(l)(c). To be adequate, this statement must provide “some basis for concluding that less intrusive investigative procedures are not feasible.” United States v. Lilia, 699 F.2d 99, 103 (2d Cir.1983). Here, both affidavits included significantly more than “generalized and conclusory statements” or “skimpy” details about the specific alternative techniques tried and why they failed or were likely to fail. See id. at 104; United States v. Concepcion, 579 F.3d 214, 215 (2d Cir.2009) (holding that the facts in the affidavit in support of wiretap application were “minimally adequate” to support the finding that a wiretap was necessary). Further, as the district court noted, wiretapping was not the first step in the investigation of appellant. See United States v. Giordano, 416 U.S. 505, 515, 94 S.Ct. 1820, 40 L.Ed.2d 341 (1974); United States v. Miller, 116 F.3d 641, 663 (2d Cir.1997); United States v. Kahn, 415 U.S. 143, 153 n. 12, 94 S.Ct. 977, 39 L.Ed.2d 225 (1974). Pen register and trap and trace devices were used on appellant’s telephone, and physical surveillance was conducted of 516 Mumford St., where appellant received phone bills. United States v. Howard, 400 F.Supp.2d 457, 476, n. 8 (N.D.N.Y.2005). These facts were more than “minimally adequate.”
Second, Appellant contends that call log records indicate the Government illegally began tapping his phone prior to obtaining the April 21 wiretap order. Although appellant did not raise this claim on the motion to suppress, his co-defendant did. The district court denied the motion, crediting affidavits of two government agents that the call logs were created with pen register and trap and trace records obtained pursuant to a valid court order. Howard, 400 F.Supp.2d at 480-81. These affidavits explain some confusing aspects of the call log records. Specifically, the affidavits clearly explain that “voice” and “English” are default classifications that do not indicate a recording. Instead, *520when a conversation is recorded, “audio” is stamped on the call log.
One call record, however, is more troubling; this call is classified as “privileged,” which suggests the Government was aware of the substance of the conversation. The affidavits merely state that the classification was a “data entry error,” and that the call was not recorded. If we were in the district court’s position, we would have conducted a hearing to delve further into this bare explanation. Cross examination of the Government affiants would have given the court a better opportunity to assess their credibility and more accurately evaluate the motion to suppress. Despite this reservation, we cannot conclude that the district court clearly erred in finding that no wiretapping occurred prior to the issuance of the wiretap order in this case, United States v. Worjloh, 546 F.3d 104, 108 (2d Cir.2008) (per curiam); United States v. Gagnon, 373 F.3d 230, 235 (2d Cir.2004), or that the district court abused its discretion in declining to hold a hearing. Worjloh, 546 F.3d at 109. Appellant did not show that there had been an “intervening change in the law,” “new evidence,” or need “to correct a clear error of law or to prevent manifest injustice” that required a rehearing. United States v. Sanchez, 35 F.3d 673, 677 (2d Cir.1994).
Accordingly, the judgment of the district court hereby is AFFIRMED.
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SUMMARY ORDER
Defendant-Appellant (“defendant”), a former manager of Kassla Limo & Car *522Service (“Kassla”), appeals from a judgment of conviction for extortion, conspiracy to commit extortion, and witness tampering. Defendant challenges the sufficiency of the evidence in support of her conviction, the reasonableness of her sentence, and the calculation of the restitution and forfeiture awards. We assume the parties’ familiarity with the underlying facts and procedural history.
The Hobbs Act provides that anyone who “obstructs, delays, or affects commerce ... by robbery or extortion, or attempts or conspires so to do” is guilty of a felony. 18 U.S.C. § 1951(a). “Extortion” is defined as “the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear....” 18 U.S.C. § 1951(b)(2). Defendant claims that there was no evidence that she was personally involved in Kassla’s efforts to extort its drivers, and that, as a matter of law, Kassla’s efforts to protect its illegal van service route between Manhattan and Queens cannot constitute extortion. Neither argument has merit.
Contrary to defendant’s argument, there was a great deal of evidence that she personally participated in Kassla’s criminal endeavors. Defendant held herself out as the company’s president. She also spoke about company rules at company meetings, and was involved in determining the drivers’ monthly fee. Further, defendant mediated between Kassla’s enforcer and its victims, and personally received payments from Kassla’s victims.
Defendant also argues that Kassla’s violent acts were unrelated to its efforts to collect its monthly fees. Specifically, she claims that the organization used violence and threats of violence, not to extort money from its drivers, but rather to protect the exclusivity of its criminal enterprise. So long as Kassla’s violent acts are understood as part of its efforts to dissuade its drivers from competing with its criminal activities, defendant suggests that these acts cannot constitute “obtaining of property from another” within the meaning of the Hobbs Act. Defendant relies heavily on Scheidler v. National Organization for Women, Inc., 537 U.S. 393, 123 S.Ct. 1057, 154 L.Ed.2d 991 (2003), in which the Supreme Court suggested that property is “obtained” within the meaning of the Hobbs Act only if the defendant “receive[s] something of value ... that they could exercise, transfer, or sell.” Id. at 405.
Defendant’s claim that Kassla’s acts of violence were unconnected to its effort to collect monthly fees from its drivers was considered and rejected by the jury. However, even if we were to credit defendant’s claim, there would still be a sufficient basis for the extortion conviction. This Court rejected defendant’s argument to the contrary in United States v. Gotti, 459 F.3d 296 (2d Cir.2006). In Gotti, while acknowledging that Scheidler “framed [the “obtaining” requirement] as a two-part inquiry that requires both a deprivation and an acquisition of property,” id. at 323 (emphasis added), we explained that “the Court’s emphasis on the possibility of exercising, transferring, or selling the property [is] a concern with the extortionist’s intent.” Id. (emphasis in the original). Thus, we noted that if the abortion protesters in Scheidler had intended to profit from their crimes — if, e.g., they attempted to force the defendants to give them a no-cost non-competition agreement — then this would have satisfied Scheidler s definition of “obtaining.” Id. at 323-24.
The Gotti rule is that if a defendant interferes with a person’s intangible rights for the sake of enrichment, then this constitutes both a deprivation and an acquisition of the defendant’s property. This is *523equally true when the “rights” at issue are intangible rights, including the intangible right to engage in illegal activity. United States v. Ivezaj, 568 F.3d 88, 93 (2d Cir. 2009); United States v. Ambrose, 740 F.2d 505 (7th Cir.1984) (Posner, J.); United States v. Hanigan, 681 F.2d 1127, 1131 (9th Cir.1982). Applied to the present case, this means that Kassla’s efforts to protect its “turf’ with threats and acts of violence satisfies Scheidler’s requirement that the defendant not only disrupt the victim’s use of her property, but also “obtain” this property.
Defendant’s challenge to the sufficiency of the evidence in support of her conviction for witness tampering is equally unavailing. Two drivers testified that defendants asked them to give false testimony. Another driver testified that multiple third parties contacted him on defendant’s behalf and told him that if Chen were convicted “she would not let go of [him] even if she becomes a ghost,” and that, “when she gets out, she will retaliate.” It was reasonable for the jury to conclude that these statements were intended as threats.
Also without merit is defendant’s challenge to the reasonableness of her sentence. The district court sentenced defendant to 86 months’ imprisonment, which was roughly one-half the lower end of her guidelines range. Defendant has not argued that the court miscalculated her guidelines range or otherwise committed procedural error. The only issue, therefore, concerns the substantive reasonableness of her sentence in the light of the § 3553(a) factors. Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007). We review the district court’s sentence for substantive reasonableness deferentially, setting the sentence aside only if it “cannot be located within the range of permissible decisions.” United States v. Cavera, 550 F.3d 180, 189 (2d Cir.2008) (internal quotation marks omitted); United States v. Rigas, 490 F.3d 208, 238 (2d Cir.2007). Defendant’s best argument for greater leniency is based on her family circumstances: defendant and her husband, a co-defendant, have a young son. However, the district court explicitly took defendant’s family circumstances into account and awarded her a below-guidelines sentence on that basis. The district court also found that defendant was “a leader of this criminal enterprise,” and that this enterprise made threats of violence and committed actual incidents of violence. In the light of these findings, the 86-month sentence was reasonable.
Finally, defendant challenges the district court’s forfeiture and restitution awards. The court ordered $272,410 in forfeiture based on the assumption that 50 drivers made monthly payment of $250 over 22 months, and $119,110 in joint and several restitution. Defendant argues that these awards should be adjusted based on the value of the services the defendants provided to the drivers. Specifically, she suggests that the fact that the drivers continue to collect a $140 monthly fee from each other after Kassla’s official dissolution shows that the market value' of Kassla’s services was at least $140/month.
This argument was not made below and is therefore reviewable only for plain error. Even if it were properly preserved, however, we would not be persuaded. It is the gross proceeds obtained as a result of the conspiracy, not proceeds after costs, that determines the appropriate forfeiture amount. See United States v. Lizza Indus., Inc., 775 F.2d 492, 498 (2d Cir.1985); see also United States v. Corrado, 227 F.3d 543, 552-58 (6th Cir.2000); United States v. 381k NW Thurman St., 164 F.3d 1191, 1196 (9th Cir.1999); United States v. McHan, 101 F.3d 1027, 1041-43 (4th Cir. *5241996); United States v. Saccoccia, 58 F.3d 754, 785 (1st Cir.1995). Accordingly, there is no merit to defendant’s argument that she should be permitted to subtract the market value of the “services” she provided to her victims from the total amount she is required to restore to her victims and forfeit to the government.
We have considered the defendant’s remaining arguments and conclude that they are without merit. The judgment below is AFFIRMED.
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*493SUMMARY ORDER
Plaintiffs, John Papandon and Joseph Aracri, appeal from the district court’s order of October 22, 2007, in which the court granted the government’s motion for reconsideration pursuant to Federal Rule of Civil Procedure 60(b), and reinstated the government’s case. Plaintiffs also appeal from the district court’s Memorandum Decision and Order of July 7, 2008, 2008 WL 3981580, granting summary judgment in favor of the United States. We presume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.
In an earlier opinion, this court found that Plaintiffs “operated a daisy chain of shell companies in 1983 to sell and re-sell gasoline in such a way that the federal excise tax then levied on gasoline sales would be incurred by an entity having no assets.” United States ex rel. Perler v. Papandon, 331 F.3d 52, 53 (2d Cir.2003). We also held that “the government has the right, as an injured party, to seek redress from individual partners for partnership liabilities.” Id. at 56.
In a stipulation between the parties, they agreed that if this eourt found, as it did, that Plaintiffs could be held jointly and severally liable, summary judgment must be granted to the United States as to the issue of liability. On remand, all that remained of the case was for the district eourt to enter judgment against Plaintiffs. However, the case was dismissed for want of prosecution.
We find that the district court did not abuse its discretion in granting the motion for reconsideration, given that Plaintiffs cannot identify any prejudice to them that resulted from the delay. See United States ex rel. Drake v. Norden Sys., Inc., 375 F.3d 248, 256-57 (2d Cir.2004). Involuntary dismissal is a “harsh remedy to be utilized only in extreme situations.” Le-Sane v. Hall’s Sec. Analyst, Inc., 239 F.3d 206, 209 (2d Cir.2001). And, reinstatement of the case was in accord with “our preference for resolving disputes on the merits.” Brien v. Kullman Indus., Inc., 71 F.3d 1073, 1077 (2d Cir.1995) (per curiam).
Applying a de novo standard of review, Pyke v. Cuomo, 567 F.3d 74, 76 (2d Cir.2009) (per curiam), we conclude that the district court’s grant of summary judgment to the United States was proper. The stipulation between the parties was controlling as to liability and there is no material issue of disputed fact with respect to the amount of the tax liability. A government tax assessment is generally presumed to be correct, and a taxpayer who contests such an assessment bears the burden of proving that it is not. See United States v. Janis, 428 U.S. 433, 440-41, 96 S.Ct. 3021, 49 L.Ed.2d 1046 (1976). The evidence submitted by the government in support of its motion for summary judgment was sufficient to warrant a grant of summary judgment. See United States v. Prince, 348 F.2d 746, 748 (2d Cir.1965).
The court has reviewed Plaintiffs’ remaining arguments and finds them to be without merit. Accordingly, the judgment of the district court is hereby AFFIRMED.
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SUMMARY ORDER
George Eagan Ginther, pro se, appeals from (1) the dismissal of his complaint, and (2) post-judgment orders denying his motion to correct or amend the judgment and imposing sanctions pursuant to Rule 11 of the Federal Rules of Civil Procedure. This Court reviews de novo an order of dismissal. See Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir.2002). We “apply an abuse-of-discretion standard in reviewing all aspects of a district court’s Rule 11 determination.” Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405, 110 S.Ct. 2447, 110 L.Ed.2d 359 (1990). We assume the parties’ familiarity with the facts and the record of prior proceedings, which we reference only as necessary to explain our decision to affirm.
1. Dismissal of the Complaint
Ginther’s challenge to the dismissal of his complaint seeking, inter alia, reinstatement of benefits under a terminated disability insurance policy or, in the alternative, a refund of all insurance premiums paid to defendant, is without merit. In 2002, this court affirmed a district court judgment entered after trial that Ginther was not entitled to any benefits under the policy at issue. See Provident Life & Cas. Ins. Co. v. Ginther, 51 Fed.Appx. 72 (2d Cir.2002) (“Ginther I”). To the extent Ginther now seeks to raise new arguments supporting entitlement to benefits under the policy, his claims are barred by res judicata. Under this doctrine, “a final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action.” ATSI Commc’n, Inc. v. Shaar Fund, Ltd., 547 F.3d 109, 112 n.2 (2d Cir.2008) (internal quotation marks omitted). The parties are bound “not only as to every matter which was offered and received to sustain or defeat the claim or demand, but as to any other admissible matter which might have been offered for that purpose.” Harborside Refrigerated Servs., Inc. v. Vogel, 959 F.2d 368, 372 (2d Cir.1992) (internal quotation marks omitted). Accordingly, Gin*496ther’s claims for reinstatement of benefits were properly dismissed.
As to Ginther’s claims for a refund of premiums and damages, we agree with the district court that they were compulsory counterclaims in Ginther I and are barred under Fed.R.Civ.P. 13(a). A claim is compulsory if “a logical relationship exists between the claim and the counterclaim and [if] the essential facts of the claims are so logically connected that considerations of judicial economy and fairness dictate that all the issues be resolved in one lawsuit.” Critical-Vac Filtration Corp. v. Minuteman Int’l, Inc., 233 F.3d 697, 699 (2d Cir.2000) (internal quotation marks omitted). Furthermore, “[i]f a party has a compulsory counterclaim and fails to plead it, the claim cannot be raised in a subsequent lawsuit.” Id. As the district court correctly concluded, Ginther’s claims seeking a refund of premiums or damages pertain directly to the insurance policy at issue in Ginther I and therefore “arise[ ] out of the transaction or occurrence that [was] the subject matter of the opposing party’s claim” in that litigation. Fed.R.Civ.P. 13(a)(1)(A); see also Adam v. Jacobs, 950 F.2d 89, 92 (2d Cir.1991) (“[Hinder Second Circuit case law, claims for rescission and enforcement arise out of the same transaction or occurrence.”).
Ginther’s argument that his claims would have been permissive rather than compulsory counterclaims under New York law warrants no different conclusion because Ginther I, commenced and litigated entirely in federal court, was subject to the Federal Rules of Civil Procedure. See Shady Grove Orthopedic Assocs. v. Allstate Ins. Co., 549 F.3d 137, 142-43 (2d Cir.2008). Accordingly, we conclude that the district court properly dismissed Ginther’s claims.
2. Sanctions
Finally, we identify no abuse of discretion in the district court’s imposition of Rule 11 sanctions, which are permitted against a litigant who submits a pleading “to harass, cause unnecessary delay, or needlessly increase the cost of litigation.” Fed.R.Civ.P. 11(b)(1). The standard for triggering the award of fees under Rule 11 is “objective unreasonableness.” Salovaara v. Eckert, 222 F.3d 19, 34 (2d Cir.2000). Here, having already lost Ginther I both in the district court and in this Court, having been correctly informed in the present case that his claims in this action were barred by res judicata or should have been raised as compulsory counterclaims, and having already been sanctioned by a state court1 for raising baseless misconduct allegations against Provident’s then-attorney, Ginther nevertheless renewed the same substantive claims in a dilatory motion and imported frivolous misconduct allegations from his state case into this federal litigation. On this record, even giving due consideration to Ginther’s pro se status, we conclude that the district court reasonably determined that Ginther sought to harass Provident and its counsel, delay the conclusion of this case, and needlessly increase the cost of litigation, and that such conduct was objectively unreasonable under Rule 11.
We have considered Ginther’s other arguments on appeal and find them to be without merit. Accordingly, the judgment of the district court is AFFIRMED.
. See Ginther v. Provident Life & Cas. Ins. Co., No. 05-CV-0238E, 2007 WL 925751, at *3 & n. 3 (W.D.N.Y. Mar.26, 2007) (noting state court sanctions).
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SUMMARY ORDER
Philip Waisonovitz appeals from a judgment dismissing on summary judgment his claims under the Federal Employer’s Liability Act (“FELA”) against Metro-North Commuter Railroad (“Metro-North”) for negligent infliction of emotional distress and negligent supervision. We assume the parties’ familiarity with the underlying facts, the procedural history, and the issues presented for review.
The FELA provides that
[ejvery common carrier by railroad ... shall be liable in damages to any person suffering injury while he is employed by such carrier ... for such injuiy or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, ... or other equipment.
45 U.S.C. § 51. Claims for negligent infliction of emotional distress, which seek recovery for mental or emotional injury, are cognizable under the FELA. Consol. Rail Corp. v. Gottshall, 512 U.S. 532, 549-50, 114 S.Ct. 2396, 129 L.Ed.2d 427 (1994).
The “zone of danger” test is used to analyze such claims. Id. at 556, 114 S.Ct. 2396. Recovery is thereby limited “to those plaintiffs who sustain a physical impact as a result of a defendant’s negligent conduct, or who are placed in immediate risk of physical harm by the conduct.” Id. at 547, 114 S.Ct. 2396. Phrased differently, “a worker within the zone of danger of physical impact will be able to recover for emotional injury caused by fear of physical injury to himself, whereas a worker outside the zone will not.” Id. at 556, 114 S.Ct. 2396.
In his deposition, Waisonovitz testified that he did not see Ard’s body between the tracks until the train came to a stop, and that only then did he learn that Ard had been struck by the train. He also admitted that he suffered no physical harm, nor did he anticipate or fear suffering such harm. These statements place him outside the zone of danger.
In opposing Metro-North’s second motion for summary judgment, Waisonovitz recast his own prior deposition testimony as “questionable,” contending that “[i]t only makes sense that [he] would see Ard’s body as soon as the car in which [he] was located passed completely over Ard’s body.” Thus, having allegedly seen Ard’s body while the train was still moving, Waisonovitz argues, he entered a state of shock, lost control of the train, and consequently entered Gottshall’s zone of danger.
Waisonovitz relies on the data collected from the train’s “event recorder” (similar to an airplane’s black box), which purportedly indicates that Waisonovitz saw Ard’s body on the tracks after the car in which Waisonovitz was located passed over it. Waisonovitz also relies on his affidavit in which he interpreted the event recorder data as demonstrating a “highly unusual” braking pattern.
The district court properly concluded that this zone of danger theory was unsupported by the evidence. Waisonovitz v. Metro N. Commuter R.R., 550 F.Supp.2d. 293, 298 (D.Conn.2008). Not only does *499this theory contradict Waisonovitz’s pri- or — undeniably clear — deposition testimony, but in his affidavit Waisonovitz conceded his inability to explain any cause for his allegedly erratic braking. Summary judgment was therefore appropriate. See Gant ex rel. Gant v. Wallingford Bd. of Educ., 195 F.3d 134, 144 (2d Cir.1999).
Waisonovitz also brings a negligent supervision claim under the FELA against Metro-North. His brief, however, makes no supporting argument. He first notes: “The zone of danger test must be modified to fit into the factual scenario of a negligent supervision claim given that an employer’s awareness of an employee’s negligent conduct ... is different than in a claim of negligent infliction of emotional distress.” He then continues: “The failed duty to act which gives rise to negligent supervision puts the employer in a different position than the failed duty which gives rise to negligent infliction of emotional distress. Given these differences, the zone of danger [test] is applied differently, and the scope is different.”
Waisonovitz does no more than raise questions. He has therefore waived any such claim. See Tolbert v. Queens Coll., 242 F.3d 58, 75 (2d Cir.2001) (“It is a ‘settled appellate rule that issues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived.’ ”) (quoting United States v. Zannino, 895 F.2d 1, 17 (1st Cir.1990)); Norton v. Sam’s Club, 145 F.3d 114, 117 (2d Cir.1998) (“Issues not sufficiently argued in the briefs are considered waived and normally will not be addressed on appeal.”).
Finding no merit in Waisonovitz’s remaining arguments, we hereby AFFIRM the judgment of the district court.
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SUMMARY ORDER
Defendant-appellant Constantine Stamoulis appeals from an order entering judgment following a jury trial that found defendant liable for securities fraud in an insider trading case brought by plaintiffappellee the Securities and Exchange Commission (“SEC”). On appeal, defendant argues that there was insufficient evidence to sustain the jury’s finding of liability with respect to the following issues: (1) that the information defendant traded upon was in fact non-public information and (2) that the information was disclosed through a breach of fiduciary duty. Defendant also contends that the District Court improperly admitted evidence pertaining to these issues. We assume the parties’ familiarity with the underlying facts, the procedural history, and the issues on appeal.
We review de novo challenges to the sufficiency of the evidence. See, e.g., United States v. Rangolan, 464 F.3d 321, 324 (2d Cir.2006). It is well-established law that when a defendant has failed to assert his sufficiency of the evidence argument by motion for judgment as a matter of law or otherwise, we will not review those claims on appeal absent “extraordinary circumstances.” See Jacques v. DiMarzio, Inc., 386 F.3d 192, 199 (2d Cir.2004). Here, defendant failed to move for judgment as a matter of law or to otherwise argue in the District Court that the SEC had not introduced sufficient evidence to support a finding of liability. We may “overlook such a default in order to prevent manifest injustice in cases where a jury’s verdict is wholly without legal support.” Pahuta v. Massey-Perguson, Inc., 170 F.3d 125, 129 (2d Cir.1999) (internal quotation marks and citations omitted). Stamoulis does not urge us to overlook his failure to move under Rule 50 of the Federal Rules of Civil Procedure, nor do we perceive that the jury verdict is “wholly without legal support.” Id.
Even if defendant had preserved his sufficiency of the evidence claim, a reviewing court must “credit every inference that could have been drawn” in favor of the party defending the verdict, United States v. Reifler, 446 F.3d 65, 94 (2d Cir.2006), and uphold the jury verdict so long as any rational trier of fact could have found the essential elements necessary for liability, see United States v. Rodriguez, 392 F.3d 539, 544 (2d Cir.2004). We find no basis to overturn the jury’s verdict here.
Defendant argues for the first time on appeal that the admission of Michael Nicolaou’s testimony was improper due to the fact that the testimony was judged to be hearsay in parallel criminal litigation. By failing to raise this issue in the District Court, defendant has waived the issue. See Duamutef v. O’Keefe, 98 F.3d 22, 25 (2d Cir.1996).
Defendant also argues that the District Court “abused its discretion” when it admitted John Tsiforis’s plea allocution. We find this argument to be without merit. We review a district court’s ruling to admit or exclude evidence under a deferential *501“abuse of discretion” standard, and “will reverse [a district court] only where a ruling to admit or exclude evidence is manifestly erroneous.” See United States v. Samet, 466 F.3d 251, 254 (2d Cir.2006) (internal quotation marks omitted). Defendants must also show that any error in admitting the challenged evidence was not harmless error. An error is harmless “if the appellate court can conclude with fair assurance that the improperly admitted evidence did not substantially influence the jury.” Hynes v. Coughlin, 79 F.3d 285, 291 (2d Cir.1996). Even assuming that the challenged testimony was improperly admitted
[w]e will [nevertheless] not grant a new trial unless we find that the introduction of inadmissible evidence was a clear abuse of discretion and was so clearly prejudicial to the outcome of the trial that we are convinced that the jury has reached a seriously erroneous result or that the verdict is a miscarriage of justice. We measure prejudice by assessing error in light of the record as a whole.
Phillips v. Bowen, 278 F.3d 103, 111 (2d Cir.2002).
We cannot say that the challenged testimony yielded a “seriously erroneous” result in the finding of liability here. Accordingly, we find that the District Court did not “abuse its discretion” in admitting the contested evidence.
CONCLUSION
For the reasons stated above, the judgment of the District Court is AFFIRMED.
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SUMMARY ORDER
Plaintiff-appellant Carol Konits appeals an order from the United States District Court for the Eastern District of New York (Wexler, J.), entered on August 18, 2008, awarding attorneys’ fees as a prevailing party pursuant to the Civil Rights *503Attorney’s Fees Act of 1976, 42 U.S.C § 1988(b). We assume the parties’ familiarity with the facts, procedural background, and issues on appeal.
We review a district court’s award of attorneys’ fees for abuse of discretion. Garcia v. Yonkers Sch. Dist., 561 F.3d 97, 102 (2d Cir.2009). “A district court necessarily abuses its discretion if it bases its ruling on an erroneous view of the law or on a clearly erroneous assessment of the record.” LeBlanc-Sternberg v. Fletcher, 143 F.3d 748, 757 (2d Cir.1998).
In a successful suit under 42 U.S.C. § 1983, “the court, in its discretion, may allow the prevailing party ... a reasonable attorney’s fee as part of the costs....” 42 U.S.C. § 1988(b)(2009). “[A] prevailing party is one who has favorably effected a material alteration of the legal relationship of the parties by court order.” Garcia, 561 F.3d at 102 (internal quotations omitted).
In determining reasonable attorneys’ fees, a district court must: (1) set a reasonable hourly rate, bearing in mind all of the case specific variables, and (2) use the reasonable hourly rate to calculate a “presumptively reasonable fee.” Arbor Hill Concerned Citizens Neighborhood Ass’n v. County of Albany, 522 F.3d 182, 190 (2d Cir.2008).
“[T]he most critical factor in a district court’s determination of what constitutes reasonable attorney’s fees in a given case is the degree of success obtained by the plaintiff.” Barfield v. N.Y. City Health & Hosps. Corp., 537 F.3d 132, 152 (2d Cir.2008) (citations and quotations omitted). “That the plaintiff is a ‘prevailing party’ therefore may say little about whether the expenditure of counsel’s time was reasonable in relation to the success achieved.” Hensley v. Eckerhart, 461 U.S. 424, 436, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983). The district court must determine a reasonable hourly rate for plaintiff’s attorneys, defined by this Court as the rate that a paying client would be willing to pay. Arbor Hill, 522 F.3d at 190. A district court must consider the following factors enumerated in Johnson v. Ga. Highway Express, Inc., 488 F.2d 714 (5th Cir.1974), abrogated on other grounds by Blanchard v. Bergeron, 489 U.S. 87, 92-93, 96, 109 S.Ct. 939, 103 L.Ed.2d 67 (1989) (declining to limit fee award to amount stipulated in attorney-client agreement): (1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the level of skill required to perform the legal service properly; (4) the preclusion of employment by the attorney due to acceptance of the case; (5) the attorney’s customary hourly rate; (6) whether the fee is fixed or contingent; (7) the time limitations imposed by the client or the circumstances; (8) the amount involved in the case and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the “undesirability” of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases. See Johnson, 488 F.2d at 717-19. The court must also “bear in mind that a reasonable, paying client wishes to spend the minimum necessary to litigate the case effectively.” Arbor Hill, 522 F.3d at 190. Finally, the district court must account for the reputational benefits that might accrue to attorneys associated with the case. Id.
The district court is required to present a “concise but clear” record for review by the appellate court. Hensley, 461 U.S. at 437, 103 S.Ct. 1933. “The court must inform the reviewing court as to how the [legal] standard has been applied to the facts as the court has found them. If the *504court fails to make findings and to give an explanation, and the reason for the court’s ruling is not clear to us, we will remand for findings and an explanation.” Orchano v. Advanced Recovery, Inc., 107 F.3d 94, 99 (2d Cir.1997).
Reduction Based on Limited Success1
The district court applied a one-third reduction in the hours before March 2, 2004, because “the equal protection and due process claims dismissed by Judge Platt ... are sufficiently separable from the First Amendment retaliation claim on which plaintiff prevailed.” “[T]he court may exclude any hours spent on severable unsuccessful claims.” Green v. Torres, 361 F.3d 96, 98 (2d Cir.2004) (per curiam). In this instance, however, the court did not provide a sufficient explanation for its finding that the claims are “sufficiently separable” so as to be a basis for reducing the attorneys’ fee award. For example, there is no indication of what separable hours were expended on the dismissed claims. Nor did the court explain its calculation of the one third reduction based on its conclusion that the claims were separable. Because we do not have such explanations to review, we cannot tell whether the court abused its discretion in reaching the determination to reduce by one third the attorney hours expended before March 2, 2004.
Next, the district court reduced the total attorneys’ fees by 25% because the plaintiff only succeeded against one of six defendants. The Ninth Circuit has found that when a plaintiff only prevails against one of many defendants, even when the claims against them are related, she has had limited success in a lawsuit. See Webb v. Sloan, 330 F.3d 1158, 1169-70 (9th Cir.2003); see also Torres, 361 F.3d at 96 (finding no abuse of discretion where attorney fees were reduced to reflect plaintiffs limited success where on “the eve of trial” plaintiff withdrew claims against several defendants). Here, discretionary reductions for limited success may be appropriate, but the district court did not provide an adequate explanation for the reductions, particularly in view of the judge’s comparatively limited involvement in the case which would reduce his exposure to counsel’s work over the full life of the litigation and thus inhibit his consideration of the Johnson factors. On the record before us we do not have information on how the court compensated for its lack of exposure to the full case and reached its determination with respect to the relevant Johnson factors so as to reduce the award by 25%. Thus, we are unable to review the district court’s analysis to determine whether there was an abuse of discretion.
Determination of Reasonable Fees
The district court awarded an hourly rate of $250 per hour for work performed before December 31, 2005, and $300 per hour for work performed after January 1, 2006. We find it impossible, however, to determine from the record what factors the district court considered in determining the reasonableness of those rates. The record reflects only a vague reference to “the approximate market rate for attorneys with like experience and skill ... [and] the nature and circumstances of this action.... ” Although these two rea*505sons resemble two of the Johnson factors, on this record we cannot tell whether the district court ultimately applied the proper legal standard or whether it made an erroneous factual finding. The court made no reference to any specific Arbor Hill factors, nor did it explain why there was a discrepancy in rates allowed for hours billed before and after December 31, 2005.2 That is, there is not a sufficient explanation for us to review whether the district court abused its discretion.
Accordingly, we vacate the judgment of the district court and remand this case for further explanation of (1) the basis for reduction of fees for “sufficiently separable” claims upon which plaintiff prevailed, (2) the basis for reduction of fees for plaintiffs limited success against one of several defendants, and (3) the rate applied in the fees calculation.
For the reasons discussed, the judgment of the district court is VACATED and REMANDED.
. The district court reduced attorneys' fees by 10% for vague billing entries, hours excessive to reasonable prosecution of the action, hours not reasonably related or necessary to the prosecution of the action, and hours billed at reduced rates for clerical and paralegal tasks. The appellants have not challenged this reduction on appeal, and we therefore do not disturb the lower court's ruling.
. We are particularly left uncertain by the selection of different rates for different time periods, which suggests the use of historic rather than current rates. See Fletcher, 143 F.3d at 764 ("[Cjurrent rates, rather than historical rates, should be applied in order to compensate for the delay in payment.").
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SUMMARY ORDER
Petitioner Alvaro Garcia Portillo (“petitioner”) seeks review of a September 29, 2008, 2008 WL 4647012, order and decision of the BIA, affirming the November 7, 2006 order and decision of the Immigration Judge (Strauss, J.), denying petitioner’s request for a continuance and ordering petitioner removed to Peru. We assume the parties’ familiarity with the underlying facts and procedural history.
The issue in this appeal is whether the BIA erred in holding that the Immigration Judge (“IJ”) was correct in denying a continuance to allow petitioner time to wait for a visa number to become available. Petitioner is the beneficiary of an approved labor certification and an approved 1-130 petition. However, petitioner cannot apply to adjust his status to that of lawful permanent resident until a visa is available. Because of the backlog of visa applications, an applicant sometimes must wait years for a visa to become available and there is no way to predict exactly how long an applicant will be required to wait. Similar delays plague other steps in the process. Thus, the question often arises of when and for how long an IJ should continue removal proceedings to allow for an alien to become eligible for adjustment of status.
We review an IJ’s denial of a continuance for abuse of discretion. See Sanusi v. Gonzales, 445 F.3d 193, 199 (2d Cir.2006). Under this standard, “[a]n IJ would [ ] abuse his discretion in denying a continuance if (1) [his] decision rests on an error of law (such as application of the wrong legal principle) or a clearly erroneous factual finding or (2) [his] decision — though not necessarily the product of a legal error or a clearly erroneous factual finding— cannot be located within the range of permissible decisions.” Morgan v. Gonzales, 445 F.3d 549, 551-52 (2d Cir.2006) (quoting Zervos v. Verizon New York, Inc., 252 F.3d 163, 169 (2d Cir.2001)).
Using this standard, we have affirmed several denials of continuances to allow for adjudication of pending labor certifications. See Morgan, 445 F.3d at 553; Elbahja v. Keisler, 505 F.3d 125, 129 (2d Cir.2007). In Elbahja, a case cited by the BIA in its *508decision below, we affirmed the denial of a continuance on the grounds that Elbahja was “at the first step in [a] long and discretionary process” and that petitioner had not acted in good faith in asking for a series of continuances for a variety of reasons during the proceedings. 505 F.3d at 129. Likewise, in Morgan, we affirmed, stating that “we will not, nor should an IJ be required to, indulge Morgan’s attempts to introduce needless delay into what are meant to be ‘streamlined’ proceedings.” Morgan, 445 F.3d at 553.
However, in Rajah v. Mukasey, we vacated the BIA’s order and remanded to the BIA so that it could develop standards for when a continuance should be granted to allow for adjudication of pending labor certifications. 544 F.3d 449, 456 (2d Cir.2008). Noting that Rajah was not himself responsible for any of the delays and that his certification had actually been approved while the case was on appeal, we raised the question of “whether a system that specifically provides for [adjustment of status] on the basis of employment certification can escape being arbitrary and capricious where it does not afford adequate time for a petitioner to obtain such labor certifications, or where there is no reasoned standard for what length of time would be adequate.” Id. at 454 (quoting Thapa v. Gonzales, 460 F.3d 323, 336 n. 5 (2d Cir.2006)). We stated that while there are some cases in which the denial of a continuance is clearly within the discretion of the IJ, see, e.g., Elbahja, 505 F.3d 125, other cases are less clear, and that “[i]t is for the BIA in the first instance thus to identify the boundaries of the discretion that its judges may exercise.” Id. at 456.
Although the BIA has not yet proffered such standards in response to Rajah, in In Re Hashmi 24 I. & N. Dec. 785 (BIA 2009), the BIA did announce the relevant factors when a petitioner seeks a continuance to await adjudication of an 1-130 in the family-based visa context. Hashmi was decided after the IJ’s decision and the BIA’s order affirming the decision in this case. Thus, we do not know whether the BIA would have applied the Hashmi factors or, either in this case or on remand in Rajah, whether the BIA would have developed different standards for continuances in the labor-based visa context. We find it prudent, therefore, to remand to the BIA to decide in the first instance whether the denial of a continuance was justified in this case.
Respondent argues that a remand is unnecessary because a continuance to wait for a visa number would have been futile given the IJ’s conclusion that petitioner had not presented sufficient evidence that he would be eligible for adjustment of status when a visa number became available. See Chen v. U.S. Dept. of Justice, 471 F.3d 315, 338 (2d Cir.2006) (“[A]n error does not require a remand if the remand would be pointless because it is clear that the agency would adhere to its prior decision in the absence of error.”). We conclude, however, that the IJ made clearly erroneous factual findings in assessing whether there was sufficient evidence that the petitioner was eligible for adjustment of status, and, therefore, that the IJ’s denial of a continuance on that ground was an abuse of discretion.
Petitioner, having admitted to being present in the United States without being admitted or paroled, would normally be ineligible to apply for adjustment of status. However, petitioner argued before the IJ that he was eligible for adjustment under 8 U.S.C. § 1255(i), which allows an alien “who is the beneficiary ... of (i) a petition for classification under section 1154 of this title that was filed with the Attorney General on or before April 30, 2001; or (ii) an application for a labor certification under section 1182(a)(5)(A) of this title that was *509filed pursuant to the regulations of the Secretary of Labor on or before such a date” to apply for adjustment of status. 8 U.S.C. § 1255(i). Although petitioner’s labor certification was filed after April 30, 2001, he alleges that his wife filed a 1-130 petition under 8 U.S.C. § 1154 prior to that date, which would mean that he was “grandfathered” under Section 1255(i).2
At the November 7, 2006 hearing before the IJ, petitioner submitted as proof that his wife had filed the 1-130 petition the following evidence: a return receipt card stamped as received by the Vermont Service Center and a cashed check made out for the then-required amount for an 1-130 petition in April 2001 of $110 bearing the Vermont Service Center’s stamp and a notation of a case number. In addition, the ICE trial attorney submitted an internet printout from the USCIS Case Status Online for an 1-130 petition with the same case number as the one printed on the check. The printout indicated that the last activity in the case took place on January 6, 2005, nearly four years after the petition was initially filed.
The ICE trial attorney asked for a merits hearing on the grandfathering issue, to which the IJ responded, “I’m not going to set it for a merits hearing. I can’t do that.” On the basis of petitioner’s evidence and the ICE trial attorney’s statement that “I don’t have any 1-130 in the file,” the IJ concluded in his oral decision that “[t]he Court does not find there’s sufficient evidence to show that he would even be grandfathered under 245-1.”
However, the IJ neglected to acknowledge that the check had been cashed and hand-inscribed with a case number, indieating that it likely was sent to, and received by, the Vermont Service Center. On review, the BIA concluded that the certified mail return receipt card was “not signed by the recipient,” without acknowledging that the copy of the mail receipt in the record shows that it was stamped by the recipient. Finally, the IJ seemed to find it significant that the internet printout from USCIS Case Status Online did not bear petitioner’s name. But, neither the IJ nor the BIA mentioned that the cashed check and the internet print-out bore the same case number, raising a reasonable inference that the 1-130 was actually filed. Given these factual errors, we remand to the BIA to determine whether petitioner would be eligible for adjustment of status based on all of the evidence presented.
We are further persuaded that remand is appropriate because, putting aside the clearly erroneous factual findings, the only other reason given by the IJ for the denial of the continuance was that “such a long continuance is simply not warranted.” However, the BIA indicated in Hashmi that “[t]he number and length of prior continuances are not alone determinative” in deciding whether to grant a continuance. 24 I. & N. Dec. at 794. Although, as we explained above, it is unclear whether the Hashmi factors also apply in the labor-based visa context, we can think of no reason to make such a distinction between the two visa categories. In this case, petitioner was not responsible for the delay and this was his first request for a continuance to wait for visa availability. We believe these facts counsel in favor of granting a continuance, although we leave *510that determination to the BIA to make in the first instance.3
We therefore GRANT the petition for review, VACATE the BIA’s decision, and REMAND to the BIA for further proceedings consistent with this opinion.
. Under the regulations,
[a] visa petition that was properly filed on or before April 30, 2001, and was approvable when filed, but was later withdrawn, denied, or revoked due to circumstances that have arisen after the time of filing, will preserve the alien beneficiary's grandfathered status if the alien is otherwise eligible to file an application for adjustment of status under section 245(i) of the Act [8 U.S.C. § 1255(i) ].
8 C.F.R. § 245.10(a)(3).
. We also note that several of the Hashmi factors, if applicable in petitioner's case, counsel in favor of granting a continuance. For instance, petitioner already has an approved labor certification and 1-130 petition. Hence, petitioner’s visa petition is not only "prima facie approvable," it is approved. Hence, petitioner’s application for adjustment of status is much less speculative than Elbahja’s, who did not even have an approved labor certification. See Elbahja, 505 F.3d at 129. Visas will certainly become available in petitioner's visa category. The only question is when, not if.
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https://www.courtlistener.com/api/rest/v3/opinions/8473687/
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SUMMARY ORDER
Etleva Coku, a native and citizen of Albania, seeks review of a September 5, 2008 order of the BIA affirming the June 5, 2006 decision of Immigration Judge (“IJ”) Alan L. Page, denying her application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Etleva Coku, a.k.a. Valbona Boci, No. A78 631 538 (B.I.A. Sep. 5, 2008), aff'g No. A78 631 538 (Immig. Ct. N.Y. City Jun. 5, 2006). We assume the parties’ familiarity with the underlying facts and procedural history of this case.
When the BIA agrees with the IJ’s conclusion that a petitioner is not credible and, without rejecting any of the IJ’s grounds for decision, emphasizes particular aspects of that decision, we review both the BIA’s and IJ’s opinions. Yun-Zui Guan v. Gonzales, 432 F.3d 391, 394 (2d Cir.2005). We review the agency’s factual findings, including adverse credibility findings, under the substantial evidence standard. 8 U.S.C. § 1252(b)(4)(B); see also Corovic v. Mukasey, 519 F.3d 90, 95 (2d Cir.2008).
We find that the agency’s adverse credibility determination is supported by substantial evidence. The IJ based his decision on discrepancies in the record with regard to: (1) what types of injuries Coku had the first time she went to the hospital; (2) whether she was kidnaped and held captive by her fiancé; and (3) when she escaped from her alleged captivity.
In a pre-REAL ID Act case like the one at issue here, to form the basis of an adverse credibility determination a discrepancy must be “substantial” when measured against the record as a whole. See Secaida-Rosales v. INS, 331 F.3d 297, 308-309 (2d Cir.2003) abrogated, in part, by Xiu Xia Lin v. Mukasey, 534 F.3d 162 (2d Cir.2008).
Coku’s testimony that the first time she went to the hospital she only had pain was clearly inconsistent with the medical certificate that indicated that she had contusions and lacerations. Additionally, while her alleged abduction and nine months in captivity was a significant aspect of her claim, the letter from her psychiatrist failed to mention either, and the letter from her mother did not make any reference to such an extensive period of captivity. Further, the letter from Coku’s brother-in-law indicated that she had been released from captivity in May 2000, while she testified that she escaped in November 1999.
These inconsistencies and omissions in the record were substantial because they cast doubt on whether Coku was ever abused, abducted, or held in captivity for nine months by her fiancé, all of which are central aspects of her claim for relief. Moreover, the IJ properly declined to credit Coku’s explanations for these inconsistencies where a reasonable fact-finder would not have been compelled to do so. See e.g., Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir.2005).
*512Accordingly, the IJ’s denial of Coku’s application for asylum was proper. Further, inasmuch as Coku’s claims for withholding of removal and CAT relief share the same factual predicate as her asylum claim, the IJ’s adverse credibility finding is fatal to those claims as well. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.2006).
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
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https://www.courtlistener.com/api/rest/v3/opinions/8473689/
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SUMMARY ORDER
Defendant-Appellant Edward Tucker challenges a March 28, 2008 judgment of conviction in the district court sentencing him to concurrent terms of 151 months’ imprisonment on his guilty plea to conspiring with others to distribute and possess with intent to distribute 100 kilograms or more of marijuana, see 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), 846, and 120 months’ imprisonment upon each of his guilty pleas to possessing a firearm after having been convicted of a felony in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2); possessing ammunition after having been convicted of a felony in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2); retaliating against a federal witness in violation of 18 U.S.C. §§ 1513(b)(2) and 2; and concealment money laundering in violation of 18 U.S.C. §§ 1956(a)(l)(B)(i) and 2. Tucker argues that his sentence must be vacated and his case remanded because he did not admit during his plea proceedings that his drug conspiracy involved at least 100 kilograms of marijuana, a required element. We assume the parties’ familiarity with the underlying facts, procedural history, and specification of the issues on appeal.
Rule 11(b)(3) of the Federal Rules of Criminal Procedure provides that “[bjefore entering judgment on a guilty plea, the court must determine that there is a factual basis for the plea.” Fed.R.Crim.P. 11(b)(3). In determining whether a Rule 11 violation has occurred and in assessing its effect, this Court considers the entire record. United States v. Torrellas, 455 F.3d 96, 103 (2d Cir.2006); United States v. Maher, 108 F.3d 1513, 1521 (2d Cir.1997). “The court may rely on defendant’s own admissions, information from the government, or other information appropriate to the specific case.” United States v. Andrades, 169 F.3d 131, 136 (2d Cir.1999). Where an appellant fails to object to an alleged Rule 11 error before the district court, we review for plain error, meaning that “the defendant must demonstrate, inter alia, that (1) there was error, (2) the error was plain, [and] (3) the error prejudicially affected his substantial rights.” Torrellas, 455 F.3d at 103 (internal quotation marks omitted, alteration in original); see also United States v. Olano, 507 U.S. 725, 731-32, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993); United States v. Thomas, 274 F.3d 655, 660 (2d Cir.2001) (in banc) (Failure “to submit the question of drug type and quantity to the jury is subject to plain error review.”). To carry his burden of showing that a violation affected substantial rights, the appellant must establish that there is a “reasonable probability that, but for the error, he would not have entered the plea.” United States v. Vaval, *514404 F.3d 144, 151 (2d Cir.2005) (quoting United States v. Dominguez Benitez, 542 U.S. 74, 83, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004)). “Where these conditions are met, ‘an appellate court may then exercise its discretion to notice a forfeited error, but only if ... the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.’ ” Id. at 151 (quoting Johnson v. United States, 520 U.S. 461, 467, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997)).
Tucker did not allocute to a specific quantity of marijuana at the time he entered his plea, nor did the prosecutor specify the quantity of marijuana that Appellant had possessed or distributed during the course of the conspiracy. The Government did state, however, that the Appellant’s co-defendant, Corey Fleury, had supplied Tucker with approximately $28,000 worth of marijuana two times per month for about two years preceding his arrest (a fact from which some inference as to quantity might be inferred) and that Tucker then sold this marijuana to local dealers and customers in the Rome, New York area. Both the Appellant and his attorney agreed, in substance, that this figure and the larger factual recitation of which it was a part was a “fair statement” of what had happened. Tucker affirmed, moreover, that he had read the indictment (which alleges that the quantity of marijuana involved in the conspiracy exceeded 100 kilograms) and that he had discussed the charges with his attorney and fully understood them. The maximum penalties for a conspiracy involving at least 100 kilograms were placed on the record. Tucker averred that he understood the penalties that could be imposed and that he still wished to plead guilty.
Tucker raised no Rule 11 objection during the plea proceedings and he did not subsequently move to withdraw his plea. He did later file a sentencing memorandum that states, in relevant part, that his plea “omits any reference to the amount of drugs involved.” At sentencing, however, the district court asked Appellant’s counsel whether he objected to a finding of drug quantity of 100 kilograms. Counsel responded, ‘Your Honor, I believe that’s an accurate number.” The district court concluded that the applicable Guidelines range was 262 to 327 months’ imprisonment before imposing a sentence substantially below that range.
We have held that, “[wjhere a defendant, before sentencing, learns of information erroneously omitted in violation of Rule 11 but fails to attempt to withdraw his plea based on that violation, there can be no reasonable probability that, but for the [Rule 11 violation], he would not have entered the plea, and the plain error standard is not met.” Vaval, 404 F.3d at 152 (internal quotation marks omitted). See also Dominguez Benitez, 542 U.S. at 85, 124 S.Ct. 2333 (noting that statements made at sentencing hearing are relevant to plain error analysis). Tucker attempts to avoid this case law by arguing that he raises no challenge to his plea at all, but only to the purported illegality of the 151-month sentence — a sentence he alleges was unlawful on the theory that his allocution, absent any admission as to quantity, supported only a conviction pursuant to 21 U.S.C. § 841(b)(1)(D), for which a ten-year maximum sentence is prescribed.
This argument is unavailing. Tucker relies on United States v. Gonzalez, 420 F.3d 111 (2d Cir.2005), and United States v. Yu, 285 F.3d 192 (2d Cir.2002). In both of those cases, however, the defendants, unlike Tucker, contested and explicitly refused to allocute to the charged drug quantity throughout their plea proceedings. See Gonzalez, 420 F.3d at 116-17; Yu, 285 F.3d at 195. Moreover, in the intervening *515period between the defendants’ pleas and their sentencings in those cases, the Supreme Court’s decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), made clear that facts increasing the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt, which this Court subsequently held to encompass drug quantities in the context of the enhanced penalty provisions of 21 U.S.C. § 841. See Thomas, 274 F.3d at 660. Given the defendants’ unwillingness to allocute to the quantity of drugs involved in their offenses, both cases raised the question whether the defendants would have pleaded guilty had they understood that drug quantity was an element that must be proved beyond a reasonable doubt. Indeed, Gonzalez had unsuccessfully attempted to withdraw his plea on Apprendi grounds. See Gonzalez, 420 F.3d at 118-19.
Here, in contrast, Tucker cannot claim to have been affected by any such confusion. He expressly affirmed that he had read the indictment, which specifically avers that “[t]he quantity of marijuana involved in the conspiracy ... exceeded 100 kilograms”; he acknowledged that his attorney had gone over each charge with him and that he understood them all; and the penalties for a conspiracy involving at least 100 kilograms of marijuana were placed on the record and Tucker stated that he understood them. Given these circumstances and the facts to which Tucker did allocute, it is clear that he unequivocally pleaded guilty to violating 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), and 846, and not to some lesser crime. As Tucker indicated via his own sentencing memorandum, the law regarding which facts must be submitted to a jury was clear at the time of his plea, yet he made no effort to withdraw it. Tucker has established neither plain error in his Rule 11 proceeding nor any illegality in the sentence imposed as a result.
We have considered all of Tucker’s other arguments and find them to be without merit. For the foregoing reasons, the judgment of the district court is hereby AFFIRMED.
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https://www.courtlistener.com/api/rest/v3/opinions/8473691/
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SUMMARY ORDER
Jeffrey Etess, a dentist, appeals from the judgment entered July 21, 2008, sentencing him, upon his plea of guilty, to imprisonment for one year and one day, for conspiring to sell a controlled substance containing Dihydrocodeine, commonly known as Vicodin. The District Court departed downward, upon the Government’s submission of a cooperation motion pursuant to U.S.S.G. § 5K1.1, from a Guidelines range of 30 to 37 months.
We assume the parties’ familiarity with the facts and procedures of this case.
The Appellant contends that the District Court made mistakes of fact in its July 30, 2008, memorandum, denying a motion for reduction of sentence. The “mistakes” are alleged to be the reference to the Appellant as a “drug dealer,” the assertion that the sale of 157,000 Vicodin pills would net the Appellant “almost one million dollars,” and the assertion that the Appellant was selling drugs to patients. The use of the label “drug dealer” was not a mistake in view of the evidence showing sale of a large quantity of Vicodin pills. Whether or not there were sales to patients, the District Court stated that the Appellant “was selling drugs to patients and non-patients.” Even if there were no sales to patients, the sentence was fully justified by the sales to non-patients, and there is no indication that the District *517Court gave any weight at sentencing to the alleged mistake in the post-sentencing statement concerning sales to patients. Finally, the Appellant does not challenge the accuracy of the District Court’s calculation of the value of the pills he possessed, arguing only that many of the pills were not sold but destroyed. However, the Appellant was convicted of possession with intent to distribute, and he destroyed the pills only after he was interviewed by federal agents. The District Court could reasonably have inferred that without the intervention of the authorities, the Appellant would have sold the drugs, which had a substantial street value.
The Appellant also contends that the District Court erred in not making a departure (beyond the cooperation departure) based on diminished capacity. See U.S.S.G. 5K2.13. However, the departure was properly rejected because the Appellant failed to establish the required causal link between the diminished capacity and the charged offense, see United States v. Valdez, 426 F.3d 178, 184 (2d Cir.2005), and because such a departure is not available if the claimed reduced mental capacity was caused by the voluntary use of drugs, see U.S.S.G. § 5K2.13.
We have considered all of the Appellant’s remaining contentions and conclude that they lack merit.
Accordingly, we affirm the judgment of the District Court.
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SUMMARY ORDER
ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED.
John E. Howard, III was convicted of possessing with the intent to distribute more than five hundred grams of cocaine in violation of 21 U.S.C. § 841(a)(1) & (b)(1)(B). He was sentenced principally to 72 months imprisonment. Petitioner now appeals from his July 8, 2008 judgment of conviction. On appeal, appellant argues for suppression of evidence obtained pursuant to wiretap orders of April 21 and May 20, 2004. We assume the parties’ familiarity with the underlying facts, procedural history, and specification of issues for review.
Appellant first contends that the wiretap orders did not comply with the restrictions *519of Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (“Title III”), 18 U.S.C. §§ 2510-2522, because the Government (a) failed to adequately identify Appellant as one of the persons whose communications would be intercepted, and (b) failed to establish that alternative investigative techniques were used or attempted before appellant’s phone was tapped. We grant considerable deference to the issuing judge’s decision to authorize a wiretap, ensuring only that the facts in the wiretap application were “minimally adequate” to support the determination. United States v. Miller, 116 F.3d 641, 663 (2d Cir.1997).
To comply with the identification requirement of Title III, the Government need only identify an individual when it has “probable cause to believe that the individual is engaged in the criminal activity under investigation and expects to intercept that individual’s conversations over the target telephone.” United States v. Donovan, 429 U.S. 413, 428, 97 S.Ct. 658, 50 L.Ed.2d 652 (1977) (emphasis added). Here, appellant was properly omitted from the affidavit of April 21 because there is no evidence that the Government had probable cause to suspect appellant at this date. Appellant was correctly identified in the affidavit of May 20.
To comply with the “necessity requirement” of Title III, wiretap applications must include a “full and complete statement” explaining if alternative investigative techniques have been tried and failed, why they “reasonably appear” unlikely to succeed if tried, or that they are too dangerous. 18 U.S.C. § 2518(l)(c). To be adequate, this statement must provide “some basis for concluding that less intrusive investigative procedures are not feasible.” United States v. Lilia, 699 F.2d 99, 103 (2d Cir.1983). Here, both affidavits included significantly more than “generalized and conclusory statements” or “skimpy” details about the specific alternative techniques tried and why they failed or were likely to fail. See id. at 104; United States v. Concepcion, 579 F.3d 214, 215 (2d Cir.2009) (holding that the facts in the affidavit in support of wiretap application were “minimally adequate” to support the finding that a wiretap was necessary). Further, as the district court noted, wiretapping was not the first step in the investigation of appellant. See United States v. Giordano, 416 U.S. 505, 515, 94 S.Ct. 1820, 40 L.Ed.2d 341 (1974); United States v. Miller, 116 F.3d 641, 663 (2d Cir.1997); United States v. Kahn, 415 U.S. 143, 153 n. 12, 94 S.Ct. 977, 39 L.Ed.2d 225 (1974). Pen register and trap and trace devices were used on appellant’s telephone, and physical surveillance was conducted of 516 Mumford St., where appellant received phone bills. United States v. Howard, 400 F.Supp.2d 457, 476, n. 8 (N.D.N.Y.2005). These facts were more than “minimally adequate.”
Second, Appellant contends that call log records indicate the Government illegally began tapping his phone prior to obtaining the April 21 wiretap order. Although appellant did not raise this claim on the motion to suppress, his co-defendant did. The district court denied the motion, crediting affidavits of two government agents that the call logs were created with pen register and trap and trace records obtained pursuant to a valid court order. Howard, 400 F.Supp.2d at 480-81. These affidavits explain some confusing aspects of the call log records. Specifically, the affidavits clearly explain that “voice” and “English” are default classifications that do not indicate a recording. Instead, *520when a conversation is recorded, “audio” is stamped on the call log.
One call record, however, is more troubling; this call is classified as “privileged,” which suggests the Government was aware of the substance of the conversation. The affidavits merely state that the classification was a “data entry error,” and that the call was not recorded. If we were in the district court’s position, we would have conducted a hearing to delve further into this bare explanation. Cross examination of the Government affiants would have given the court a better opportunity to assess their credibility and more accurately evaluate the motion to suppress. Despite this reservation, we cannot conclude that the district court clearly erred in finding that no wiretapping occurred prior to the issuance of the wiretap order in this case, United States v. Worjloh, 546 F.3d 104, 108 (2d Cir.2008) (per curiam); United States v. Gagnon, 373 F.3d 230, 235 (2d Cir.2004), or that the district court abused its discretion in declining to hold a hearing. Worjloh, 546 F.3d at 109. Appellant did not show that there had been an “intervening change in the law,” “new evidence,” or need “to correct a clear error of law or to prevent manifest injustice” that required a rehearing. United States v. Sanchez, 35 F.3d 673, 677 (2d Cir.1994).
Accordingly, the judgment of the district court hereby is AFFIRMED.
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ORDER
The petitioner having failed to file the brief required by Federal Circuit Rule 31(a) within the time permitted by the rules, it is
ORDERED that the petition for review be, and the same hereby is, DISMISSED, for failure to prosecute in accordance with the rules.
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https://www.courtlistener.com/api/rest/v3/opinions/8473698/
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SUMMARY ORDER
Plaintiff Richard E. Stone appeals from the district court’s March 26, 2008 Opinion and Order, 539 F.Supp.2d 669, granting summary judgment to Defendant, Manhattan and Bronx Surface Transit Operating Authority (“MaBSTOA”). We presume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.
The district court’s decision to grant summary judgment is reviewed de novo. Parker v. Columbia Pictures Indus., 204 F.3d 326, 332 (2d Cir.2000). In determining whether the grant of summary judgment was appropriate, we resolve all ambiguities, and draw all inferences, in favor of the nonmoving party. Id. This court affirms a grant of summary judgment when the record reveals no genuine issue of material fact. Id. For substantially the reasons stated by the district court, we find that summary judgment in favor of Defendant MaBSTOA was proper.
Claims under the Americans with Disabilities Act (“ADA”), 42 U.S.C. *527§§ 12101 et seq., proceed under the familiar burden-shifting analysis articulated by McDonnell Douglas and its progeny. See, e.g., Greenway v. Buffalo Hilton Hotel, 143 F.3d 47, 52 (2d Cir.1998). Plaintiff failed to establish a prima facie case of discrimination under the ADA. See Reeves v. Johnson Controls World Servs., Inc., 140 F.3d 144, 149-50 (2d Cir.1998). In any event, the undisputed proof establishes that Defendant would have dismissed Plaintiff, regardless of any impairment, for an independent nondiscriminatory reason.
We find Plaintiffs claim that the district court erred regarding its management of discovery to be unavailing. The district court did not abuse its discretion in directing Plaintiff to pay the costs of recording the depositions taken in this case. See Fed.R.Civ.P. 30(b)(3)(A); Hollander v. Am. Cyanamid Co., 895 F.2d 80, 84 (2d Cir.1990). And, Plaintiffs allegations of judicial bias are clearly meritless, as disagreement with the court’s rulings does not furnish a basis for such a claim. See Liteky v. United States, 510 U.S. 540, 555, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994).
The court has reviewed Plaintiffs remaining arguments and finds them to be without merit. Accordingly, the judgment of the district court is hereby AFFIRMED.
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SUMMARY ORDER
Plaintiffs-Appellants Dr. Al-Hajj Idris A. Muhammad, pro se, and Siraj Ibn Wahhaj, pro se, appeal from a judgment of the district court granting the Defendants’ motion for summary judgment and dismissing the civil rights action brought by Muhammad and Wahhaj, in which they alleged that they were subjected to unconstitutional border stops, searches, and detentions by Customs & Border Protection agents at John F. Kennedy International Airport, upon their arrival from Saudi Arabia and Morocco, respectively. We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.
We review a district court’s order granting summary judgment de novo and ask whether the district court properly concluded that there was no genuine issue as to any material fact and that the moving party was entitled to judgment as a matter of law. See Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292, 300 (2d Cir.2003). In determining whether there are genuine issues of material fact, we are “required to resolve all ambiguities and draw all permissible factual inferences in favor of the party against whom summary judgment is sought.” Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir.2003) (internal quotation marks omitted). However, “conclusory statements or mere allegations [are] not sufficient to defeat a summary judgment motion.” Davis v. New York, 316 F.3d 93, 100 (2d Cir.2002).
As an initial matter, the claims against the Defendants in their official capacities as federal officers are barred by sovereign immunity, and the district court correctly construed the claims against the Defendants in their individual capacities as an action pursuant to Bivens v. Six Unknown Named Agents of the Fed. Bureau of *531Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971).
The district court properly granted summary judgment with respect to the Plaintiffs’ Fourth Amendment claims in light of our decision in Tabbaa v. Chertoff, 509 F.3d 89 (2d Cir.2007). We explained in Tabbaa that “routine” border stops do not require reasonable suspicion, and that baggage searches are “routine.” Id. at 98. Contrary to the Plaintiffs’ contention, the appropriate issue for a Fourth Amendment challenge to a border stop is not the motive behind the stop, but the intrusiveness of the search. See United States v. Irving, 452 F.3d 110, 123 (2d Cir.2006). It is undisputed that only the baggage, and not the persons, of the Plaintiffs were searched and, accordingly, the searches were routine and did not require reasonable suspicion. See Tabbaa, 509 F.3d at 97-101. Moreover, the duration of the border stops at issue here — two and four hours — does not render them impermissibly intrusive. In Tabbaa, we held that border stops lasting up to six hours, “while certainly inconvenient, ... cannot be considered an unexpected ‘level of intrusion into a person’s privacy.’ ” Id. at 100 (quoting Irving, 452 F.3d at 123).
With respect to the Plaintiffs’ claims that the border stops violated their First Amendment rights to free speech, assembly, and free exercise of religion, and then-rights under the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb, they provided only conclusory allegations to support these claims, which were insufficient to withstand summary judgment. See Davis, 316 F.3d at 100.
Because we have determined that the district court properly granted summary judgment on the merits of the Plaintiffs’ claims, we need not reach the Defendants’ argument that they are also entitled to qualified immunity.
For the foregoing reasons, the judgment of the district court is hereby AFFIRMED.
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SUMMARY ORDER
Petitioner, Saidu Jalloh, allegedly a native and citizen of Sierra Leone, seeks review of a June 11, 2008 order of the BIA affirming the November 9, 2006 decision of Immigration Judge (“IJ”) Philip L. Morace denying petitioner’s application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Saidu Jalloh, No. A 079 303 576 (B.I.A. Jun. 11, 2008), aff'g No. A 079 303 576 (Immig. Ct. N.Y. City Nov. 9, 2006). We assume the parties’ familiarity with the underlying facts and procedural history of the case.
When the BIA summarily affirms the decision of the IJ without issuing an opinion, see 8 C.F.R. § 1003.1(e)(4), this Court reviews the IJ’s decision as the final agency determination. See Shunfu Li v. Mukasey, 529 F.3d 141, 146 (2d Cir.2008). We review the agency’s factual findings, including adverse credibility determinations, under the substantial evidence standard, treating them as “conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); see also Manzur v. U.S. Dep’t of Homeland Sec., 494 F.3d 281, 289 (2d Cir.2007).
*533Substantial evidence supports the BIA’s affirmance of the IJ’s adverse credibility determination. In finding Jalloh not credible, the IJ reasonably considered a forensic expert’s report and testimony, concluding that Jalloh’s identity card had been altered and that his birth certificate was a counterfeit. Although the IJ did not adopt the forensic expert’s ultimate conclusion that either document was fraudulent, he reasonably relied on the expert’s testimony in affording limited weight to those documents. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 342 (2d Cir.2006).
The IJ also reasonably noted Jalloh’s inability to explain how he received the birth certificate from his mother in 1996 when the birth certificate’s format was not employed by the Sierra Leonean government until 1998, and reasonably considered that the face of the birth certificate indicated it was issued in July 2000, two months after Jalloh testified that he saw his mother for the last time. Lastly, the IJ properly noted Jalloh’s inability to explain why two contradictory birth certificates had been submitted. In light of these discrepancies, the IJ appropriately concluded that Jalloh was not credible as to his identity, a sufficient reason for the IJ to deny his asylum claim. See 8 U.S.C. § 1101(a)(42); Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528-29 (2d Cir.2006).
Because the only evidence of a threat to Jalloh’s life or freedom depended upon his credibility, the adverse credibility determination necessarily precludes success on Jalloh’s claims for withholding of removal and CAT relief, which are based on the same factual predicate. See Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir.2006).
Although Jalloh asserted other bases for remand, we need not address them. The adverse credibility finding is dispositive in this case.
For the foregoing reasons, the petition for review is DENIED. Having completed our review, any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
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SUMMARY ORDER
Bonnie Vent (“Vent”) appeals from a final judgment by the United States District Court for the Southern District of New York (Robinson, J.) dismissing her complaint against Mars Snackfood (“Mars”). We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.
We review the grant of a Rule 12(b)(6) motion to dismiss de novo, accepting all factual allegations in the complaint as true and drawing all inferences in the plaintiffs favor. Goldstein v. Pataki, 516 F.3d 50, 56 (2d Cir.2008). The parties have stipulated that New Jersey law applies to these claims. Vent v. Mars Snackfood US, LLC, 611 F.Supp.2d 333, 336 (S.D.N.Y.2009). Under New Jersey law, a misappropriation of an idea claim is successful only when a plaintiff establishes: “(1) the idea was novel; (2) it was made in confidence; and (3) it was adopted and made use of.” Flemming v. Ronson, 107 N.J.Super. 311, 317, 258 A.2d 153, 157 (S.C.N.J.1969). Vent’s claim for misappropriation of her idea fails because she cannot establish that she delivered her advertising pitch in confidence.
Vent’s amended complaint states that the idea “was made by Plaintiff to Defendants in confidence” for there was a “confidential or fiduciary relationship [that] existed between the parties, because the parties did not deal on equal terms.” Vent must rely on an implied relationship — -Vent did not have any discussion with the Mars representative about confi*535dentiality, nor was there any written agreement. There is no direct evidence of a confidential relationship between Mars and Vent.
In the absence of an explicit confidentiality agreement, Vent must demonstrate that a confidential or fiduciary relationship existed between herself and Mars, such that the information she provided was assumed to be confidential. Under New Jersey law, a confidential or fiduciary relationship is created when the dominant position of one of the parties “make[s] it certain that the parties do not deal on equal terms.” Alexander v. CIGNA Corp., 991 F.Supp. 427, 437 (D.N.J.1998). Though there is arguably a power differential frequently in business transactions, “fiduciary duties are not imposed in ordinary commercial business transactions.” Id. at 438. One party must be in a position to take advantage of the other person because of that person’s “susceptibility or vulnerability.” Id. New Jersey courts have interpreted this standard to require evidence of domination or control of one party by the other. See, e.g., Shogen v. Global Aggressive Growth Fund, Ltd., No. 04-5695(SRC), 2007 WL 1237829, at *17 (D.N.J. Apr.26, 2007). It is hard to argue that Vent was susceptible and vulnerable when she made an unsolicited call to the Mars representative. Vent and Mars were dealing at arms-length, as part of a business transaction. This was not the typical situation in which the law assumes a fiduciary relationship. Mars was not “under a duty to act for or to give advice for the benefit of [Vent] upon matters within the scope of the relation.” Restatement (Second) of Torts § 874, Comment a; see also McKelvey v. Pierce, 173 N.J. 26, 800 A.2d 840, 859 (2002). Mars argues and the district court noted, if Vent’s proposed standard is sufficient to find a confidential or fiduciary relationship, it will subsume nearly all business transactions.
Fiduciary or confidential relationships also require both parties’ agreement. Glaziers and Glassworkers Union Local No. 252 Annuity Fund v. Newbridge, 93 F.3d 1171, 1183 (3d Cir.1996). A fiduciary relationship cannot be created unilaterally when one person entrusts another with confidential information. United States v. Chestman, 947 F.2d 551, 567 (2d Cir.1991). Simply telling someone information that one party views as confidential is not enough to create a fiduciary relationship without some assent by the other party.
Vent then turns to industry custom, arguing that in the “entertainment and marketing industries,” there is a custom of confidentiality when one person presents a pitch to another. However, as Mars notes, Mars is not in the entertainment or marketing industries. This argument is also suspect because such allegations were not contained in the amended complaint, and instead brought up for the first time at oral argument before the district court. Vent, 611 F.Supp.2d at 341. Even if we consider the argument, however, it seems unreasonable to assume that Mars would understand entertainment industry custom without being in the industry itself. While some industries have developed working assumptions of confidentiality when ideas are exchanged, see, e.g., Nadel v. Play-By-Play Toys & Novelties, Inc., 208 F.3d 368, 371-72 (2d Cir.2000), it seems unreasonable to expect a company outside of such an industry to both recognize and agree to the standards within that other industry. Having such a requirement would reduce the incentives for purveyors of ideas to take reasonable steps to maintain the secrecy of their ideas.
The district court was correct when it concluded that Vent did not present her pitch to Mars in confidence.
*536We have considered the remaining arguments and find them to be without merit.
For the foregoing reasons, the judgment of the district court is AFFIRMED.
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SUMMARY ORDER
Alonzo T. Gregory appeals from a December 22, 2008, 2008 WL 5391938, order of the United States District Court for the District of Connecticut (Burns, J.), which denied Gregory’s July 8, 2008 motion in which he moved for a reduction of his 262-month sentence under 18 U.S.C. § 3582(c). He requested a hearing on his motion— presumably meaning an oral hearing, given that he had the opportunity to present his contentions in writing. The district court, without affording Gregory an oral hearing, determined that his record “indicates the need to protect the public from [his] further crimes,” and therefore denied his motion. We assume the parties’ familiarity with the underlying facts, the procedural history, and the issues presented for review.
I. Background
After pleading guilty on December 3, 1996 to a one-count indictment, Gregory was sentenced on November 14, 1997 to a term of 262 months of imprisonment for possession with intent to distribute and distribution of five grams or more of cocaine base in violation of 21 U.S.C. § 841(a)(1). The court determined that Gregory had a criminal history category of VI given, inter alia, his membership in a street gang and 13 prior criminal convictions for various offenses, including burglary, larceny, weapons charges, assault, robbery, forgery, and breach of the peace. There were also state charges pending against Gregory at the time, including multiple drug charges, aggravated unlicensed operation of a vehicle, and criminal use of a firearm. The court calculated Gregory’s base offense level to be 34, which, with his criminal history category of VI, yielded a Guidelines-recommended sentencing range of 262 to 327 months. Thus, Gregory’s original sentence of 262 months was at the bottom of the then-effective range for crack cocaine offenses.
Bureau of Prisons records indicate that while incarcerated in July 2000, Gregory was involved in a fight with another inmate, resulting in 25 days of disciplinary segregation. The records also report that in July 2002, Gregory was again involved in a fight with another inmate. The records indicate that in May 2006, while still imprisoned, Gregory was involved in yet another assault incident that resulted in serious injury.
II. Applicable Law
Generally, a district court may not modify a term of imprisonment once it has been imposed. See Poindexter v. United States, 556 F.3d 87, 89 (2d Cir.2009) (“A sentencing court may not modify a sentence once it has been imposed except under the limited conditions set forth in 18 U.S.C. § 3582.”); Cortorreal v. United States, 486 *538F.3d 742, 744 (2d Cir.2007). A limited exception to this rule is embodied in 18 U.S.C. § 3582(c)(2), which provides that a district court may modify a sentence after it has been imposed
in the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission pursuant to 28 U.S.C. [§ ] 994(o), upon motion of the defendant or the Director of the Bureau of Prisons, or on its own motion, the court may reduce the term of imprisonment, after considering the factors set forth in section 3553(a) to the extent that they are applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.
18 U.S.C. § 3582(c)(2).
Section 1B1.10(a) of the Sentencing Guidelines, entitled “Reduction in Term of Imprisonment as a Result of Amended Guideline Range (Policy Statement),” provides that “[i]n a case in which a defendant is serving a term of imprisonment, and the guideline range applicable to that defendant has subsequently been lowered as a result of an amendment to the Guidelines Manual ... the court may reduce the defendant’s term of imprisonment as provided by 18 U'.S.C. [§ ] 3582(c)(2).” U.S.S.G. § lB1.10(a). The Application Notes and Commentary to this Section state that a court faced with a motion for reduction of sentence under § 3582(c)(2) may consider, in addition to the factors in 18 U.S.C. § 3553(a), “the nature and seriousness of the danger to any person or the community that may be posed by a reduction in the defendant’s term of imprisonment” and the “post-sentenc[e] conduct of the defendant that occurred after imposition of the original term of imprisonment.” U.S.S.G. § 1B1.10 Application Notes (l)(B)(i).
Effective November 7, 2007, the Sentencing Commission reduced by two levels the offense levels applicable to crack cocaine offenses. U.S.S.G. Supp. to App. C., Amend. 706; see also United States v. Borden, 564 F.3d 100, 102 (2d Cir.2009). On December 11, 2007, the Commission voted to apply the amended Guidelines retroactively, effective March 3, 2008. U.S.S.G. Supp. to App. C, Amend. 713. Thus, as both parties agree, Gregory’s sentencing range has been reduced, making him potentially eligible for a reduction of his sentence as provided by 18 U.S.C. § 3582(c)(2).
We review a district court’s ruling on a motion under 18 U.S.C. § 3582(c)(2) for abuse of discretion. Borden, 564 F.3d at 104 (joining sister circuits in adopting the abuse-of~discretion standard of review for this Court’s review of motions made pursuant to § 3582(c)(2)).
III. Analysis
As required by 18 U.S.C. § 3582(c)(2), the district court judge appropriately considered the factors in 18 U.S.C. § 3553(a) and the Commentary to U.S.S.G. § 1B1.10 in denying Gregory’s motion for a reduction of his sentence. She noted that Gregory has a lengthy criminal history and that Bureau of Prisons records indicate that he has been involved in violent altercations while incarcerated. Based on this, she found a need to protect the public from further crimes and, after noting that his sentence is at the top of the now-current Guidelines range, she declined to reduce Gregory’s sentence.
Gregory argues that had he been given opportunity for an oral hearing, he would have “taken issue with the allegations” regarding his conduct while imprisoned. Moreover, he asserts that, at a hearing, he may have been able to “convince the court that his exemplary behavior in other ar*539eas” would mitigate some of this conduct. Finally, while Gregory acknowledges that the district judge may take into account his post-conviction conduct when ruling on a § 3582(c)(2) motion, he argues that since the government’s brief in opposition to his motion referenced his post-conviction conduct only generally, he was not given a chance to respond to the specific conduct that factored into the district court’s determination. In this regard, Gregory contends that the failure to afford a hearing violated his due process rights.
Gregory’s arguments are unavailing. Section 1B1.10 makes clear that “proceedings under 18 U.S.C. [§ ] 3582(c)(2) and this policy statement do not constitute a full resentencing of the defendant.” U.S.S.G. § lB1.10(a)(3). A court’s resolution of a motion for sentence reduction need not constitute a full-blown resentencing procedure; otherwise, the adjudication of the motion would be the resentencing and the motion would be moot. Moreover, Federal Rule of Criminal Procedure 43(b)(4) makes clear that a defendant’s presence is not required when the “proceeding involves the correction or reduction of sentence under ... 18 U.S.C. § 3582(c).” Fed.R.Crim.P. 43(b)(4). Therefore, the substantive requirements that apply to sentencing hearings under Federal Rule of Criminal Procedure 32(i), see, e.g., United States v. Gutierrez, 555 F.3d 105, 109 (2d Cir.2009) (acknowledging that “a defendant is entitled to have his counsel address a sentencing court”), do not apply to motions for sentence reduction under § 3582(c). Accordingly, Gregory was not entitled to an oral hearing on his motion.
We are similarly unconvinced by Gregory’s argument that he was not given an opportunity to respond to the factors the court considered in denying his motion. While he accurately asserts that the government’s brief before the district court did not mention specifically his post-incarceration conduct, the government’s brief did specify generally that the district court may consider this type of information, and it stated that such information would be forthcoming from the Probation Office. Moreover, as the government notes, Gregory’s prison records on which the district court relied were posted on PACER on December 1, 2008, three weeks before the district court denied Gregory’s motion, with notice to Gregory’s counsel. Thus, to the extent Gregory wished to respond to these reports, he had ample time to do so. Yet before the district court ruled on his § 3582(c) motion, Gregory did not inform the court that he disagreed with any of the factual assertions in the Bureau of Prisons report. Nor did he move for reconsideration after the court issued its ruling. Similarly, Gregory offers no reason that he could not have presented the district court with examples of his allegedly mitigating behavior while incarcerated by written brief below.
We have considered Gregory’s remaining arguments and find them to be without merit. For the foregoing reasons, were hereby AFFIRM the order of the district court.
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SUMMARY ORDER
Plaintiff Rose Desia, trustee of the Barbara Bess Trust f/b/o Julius Solomon (the “Solomon trust”), appeals from an award of summary judgment in favor of defendant GE Life & Annuity Assurance Co. (“GE”) on Desia’s claim that GE breached contracts with Bess when, upon Bess’s *544death, it paid the proceeds of two annuities to Bess’s sisters rather than to a trust intended to benefit Bess’s longtime companion, Julius Solomon. We review an award of summary judgment de novo, and we will affirm only if the record, viewed in the light most favorable to the nonmoving party, reveals no genuine issue of material fact. See Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Ollman v. Special Bd. of Adjustment No. 1063, 527 F.3d 239, 245 (2d Cir.2008). We assume the parties’ familiarity with the facts and record of prior proceedings, which we reference only as necessary to explain our decision to affirm.
1. Bess’s Intent
Plaintiff submits that the district court erred in determining that she had failed to adduce sufficient evidence to raise a material question of fact regarding Bess’s intent to have defendants pay the proceeds of her annuities to the Solomon trust rather than to her sisters, the original beneficiaries named in the policy. See, e.g., Bigley v. Pac. Standard Life Ins. Co., 229 Conn. 459, 462, 642 A.2d 4 (1994) (holding insurer discharged from liability if, in good faith, it pays beneficiary designated by policyholder). We disagree. The district court carefully and accurately detailed the evidence of two change-of-beneficiary forms that Bess signed in blank before her death, but that her financial adviser, James Stewart, filled out and submitted to defendant only after Bess’s death. The submitted forms indicated that the annuities’ beneficiary was to be the “Barbara Bess Trust” rather than Bess’s sisters. But, as the district court observed, no such trust exists. The only trusts relevant to this action are the Solomon trust and the Barbara Bess Charitable Remainder Unitrust, of which Bess’s sisters were the beneficiaries. The only evidence plaintiff proffered to support her claim that Bess intended to make the Solomon trust the beneficiary of her annuities was Desia’s own testimony that Bess asked whether Desia, as trustee of the Solomon trust, was required to sign the change of beneficiary form. Desia Dep. at 119:16. This statement raises no triable fact issue because a jury would have to engage in impermissible speculation to infer from this single query that Bess intended her annuities to be paid to Julius Solomon. See Harlen Assocs. v. Inc. Vill. of Mineola, 273 F.3d 494, 502 (2d Cir.2001). Desia acknowledged that Bess never said anything to her indicating an intent to have the proceeds of her annuities paid to Solomon. Further, the record is replete with uncontradicted evidence that Bess completed the change of beneficiary form in accordance with her estate plan, which named her estate as the beneficiary of all her qualified annuities. See, e.g., Holcomb v. Iona Coll., 521 F.3d 130, 137 (2d Cir.2008). Accordingly, like the district court, we conclude that Desia failed to adduce evidence sufficient to defeat summary judgment.
2. Stewart’s Credibility
Desia also argues that material questions of fact as to the credibility of Bess’s financial adviser, James Stewart, precluded summary judgment. We are not persuaded. Although witness credibility is usually a question of fact for the jury, see, e.g., Dillon v. Morano, 497 F.3d 247, 254 (2d Cir.2007), “[b]road, conclusory attacks on the credibility of a witness will not, by themselves, present questions of material fact” for trial, Island Software & Computer Serv., Inc. v. Microsoft Corp., 413 F.3d 257, 261 (2d Cir.2005). A plaintiff opposing summary judgment must still “identify affirmative evidence from which a jury could find that the plaintiff has car*545ried ... her burden of proving the pertinent [intent].” Crawford-El v. Britton, 523 U.S. 574, 600, 118 S.Ct. 1584, 140 L.Ed.2d 759 (1998); see also McCullough v. Wyandanch Union Free Sch. Dist., 187 F.3d 272, 280 (2d Cir.1999) (observing that party “cannot defeat summary judgment ... merely by impugning [a witness’s] honesty”).
Desia attacks Stewart’s credibility based on the witness’s acknowledgment that, in a 2000 affidavit, he had “embellished” his recollection about the life-threatening nature of Bess’s illness. See Stewart Dep. at 33. Desia also identifies evidence impugning Stewart’s competence as a financial adviser, e.g., evidence that Stewart (1) had Bess sign a blank form, (2) did not recollect Bess’s lawyer’s written instructions, (3) misunderstood who should be the new beneficiary, and (4) did not attempt to correct the form for four months after realizing the forms had been incorrectly filled out. This general attack on Stewart’s competence, even if credited, provides no evidence that would permit a reasonable jury to find that Bess intended to designate Julius Solomon or the Solomon trust as the beneficiary of her annuities. Accordingly, we uphold the award of summary judgment in favor of defendants.
We have considered plaintiffs other arguments on appeal and conclude that they lack merit. Accordingly, we AFFIRM the judgment of the district court.
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SUMMARY ORDER
Appellant Olive J. Gordon appeals from the judgment of the district court granting summary judgment to Health & Hospitals Corporation and Kings County Hospital Center in Appellant’s action for age discrimination and retaliation. Defendants argue that the district court correctly granted them motion for summary judgment. We assume the parties’ familiarity with the facts, proceedings below, and specification of appellate issues and hold as follows.
When a district court grants summaxy judgment, we review the decision de novo. Summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. See Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292, 300 (2d Cir.2003). In determining whether there are genuine issues of material fact, a court is “required to x'esolve all ambiguities and draw all permissible factual inferences in favor of the party against whom summaxy judgment is sought.” Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir.2003) (internal quotation marks omitted). However, “conclusory statements or mere allegations [are] not sxifficient to defeat a summary judgment motion.” Davis v. State of New York, 316 F.3d 93, 100 (2d Cir.2002).
Having conducted an independent and de novo review, we affirm for substantially the reasons stated by the distx-ict court in its thorough and well-reasoned opinion. We have considered all of Appellant’s arguments on appeal and find them to be without merit.
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SUMMARY ORDER
Petitioner Dinglian Zou, a native and citizen of the People’s Republic of China, seeks review of a September 4, 2007 order of the BIA, which: (1) reversed the August 12, 2004 decision of Immigration Judge (“IJ”) Annette S. Elstein granting her application for asylum and withholding of removal; and (2) affirmed the IJ’s denial of her application for relief under the Convention Against Torture (“CAT”). In re Dinglian Zou, No. A070 895 410 (B.I.A. Sept. 4, 2007), rev’g in part No. A070 895 410 (Immig. Ct. N.Y. City Aug. 12, 2004). We assume the parties’ familiarity with the underlying facts and procedural history in this case.
We review the agency’s factual findings under the substantial evidence standard. 8 U.S.C. § 1252(b)(4)(B); see also Corovic v. Mukasey, 519 F.3d 90, 95 (2d Cir.2008). We review de novo questions of law and the application of law to undisputed fact. Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.2008).
Zou argues that the BIA erred in concluding that she failed to demonstrate her eligibility for asylum based on the birth of her U.S. citizen twins. However, this argument fails because we have previously reviewed the BIA’s consideration of evidence similar to that which Zou presented and have found no error in its conclusion that such evidence is insufficient to establish an objectively reasonable fear of persecution. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 156-65 (2d Cir.2008). Further, despite Zou’s argument that the BIA failed to adequately consider the evidence she presented, we “presume that [the agency] has taken into account all of the evidence before [it], unless the record compellingly suggests otherwise” and there is nothing in the BIA’s decision compelling the conclusion that it failed to take into account Zou’s evidence. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 337 n. 17 (2d Cir.2006).
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is *552DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
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OPINION OF THE COURT
NYGAARD, Circuit Judge.
Corey Gregory pleaded guilty to being a felon in possession of a firearm pursuant to 18 U.S.C. § 922(g)(1). He appeals the sentence, arguing that it was substantively unreasonable. We review the District Court’s sentence for substantive reasonableness under an abuse of discretion standard, taking into account the totality of the circumstances. For the reasons stated below, we will affirm.
Gregory argues on appeal that the District Court committed procedural error in failing to consider and adequately address his argument that § 2K2.1 should be given little weight. He argues that this Guidelines section was improperly formulated and that the District Court failed to give adequate consideration to this argument. We find this argument meritless. The record conclusively demonstrates that the District Court considered and ultimately rejected Gregory’s argument. The District Court characterized Gregory’s argument as alleging that § 2K2.1 had, over time, escalated in severity without a sufficient basis for that increase. The District Judge, after considering the argument, specifically determined that “[tjhere’s nothing about the so-called increases, in this Court’s judgment, that required intervention.” The District Court clearly considered and rejected Gregory’s argument and we discern no procedural error in the District Court’s response to Gregory’s argument.
Since the District Court did not err procedurally, we will affirm a sentence as long as it falls within the broad range of possible sentences that can be considered reasonable in light of the § 3553(a) factors. A within-Guidelines sentence is more likely to be a reasonable one. As we have recently stated, “if the district court’s sentence is procedurally sound, we will affirm it unless no reasonable sentencing court would have imposed the same sentence on that particular defendant for the reasons the district court provided.” United States v. Tomko, 562 F.3d 558, 568 (3d Cir.2009) (en banc). In this ease, the District Court concluded that an 80-month term of imprisonment was reasonable, and we agree. We will affirm the sentence.
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SUMMARY ORDER
Plaintiff Richard E. Stone appeals from the district court’s March 26, 2008 Opinion and Order, 539 F.Supp.2d 669, granting summary judgment to Defendant, Manhattan and Bronx Surface Transit Operating Authority (“MaBSTOA”). We presume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.
The district court’s decision to grant summary judgment is reviewed de novo. Parker v. Columbia Pictures Indus., 204 F.3d 326, 332 (2d Cir.2000). In determining whether the grant of summary judgment was appropriate, we resolve all ambiguities, and draw all inferences, in favor of the nonmoving party. Id. This court affirms a grant of summary judgment when the record reveals no genuine issue of material fact. Id. For substantially the reasons stated by the district court, we find that summary judgment in favor of Defendant MaBSTOA was proper.
Claims under the Americans with Disabilities Act (“ADA”), 42 U.S.C. *527§§ 12101 et seq., proceed under the familiar burden-shifting analysis articulated by McDonnell Douglas and its progeny. See, e.g., Greenway v. Buffalo Hilton Hotel, 143 F.3d 47, 52 (2d Cir.1998). Plaintiff failed to establish a prima facie case of discrimination under the ADA. See Reeves v. Johnson Controls World Servs., Inc., 140 F.3d 144, 149-50 (2d Cir.1998). In any event, the undisputed proof establishes that Defendant would have dismissed Plaintiff, regardless of any impairment, for an independent nondiscriminatory reason.
We find Plaintiffs claim that the district court erred regarding its management of discovery to be unavailing. The district court did not abuse its discretion in directing Plaintiff to pay the costs of recording the depositions taken in this case. See Fed.R.Civ.P. 30(b)(3)(A); Hollander v. Am. Cyanamid Co., 895 F.2d 80, 84 (2d Cir.1990). And, Plaintiffs allegations of judicial bias are clearly meritless, as disagreement with the court’s rulings does not furnish a basis for such a claim. See Liteky v. United States, 510 U.S. 540, 555, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994).
The court has reviewed Plaintiffs remaining arguments and finds them to be without merit. Accordingly, the judgment of the district court is hereby AFFIRMED.
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SUMMARY ORDER
Plaintiffs-Appellants Dr. Al-Hajj Idris A. Muhammad, pro se, and Siraj Ibn Wahhaj, pro se, appeal from a judgment of the district court granting the Defendants’ motion for summary judgment and dismissing the civil rights action brought by Muhammad and Wahhaj, in which they alleged that they were subjected to unconstitutional border stops, searches, and detentions by Customs & Border Protection agents at John F. Kennedy International Airport, upon their arrival from Saudi Arabia and Morocco, respectively. We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.
We review a district court’s order granting summary judgment de novo and ask whether the district court properly concluded that there was no genuine issue as to any material fact and that the moving party was entitled to judgment as a matter of law. See Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292, 300 (2d Cir.2003). In determining whether there are genuine issues of material fact, we are “required to resolve all ambiguities and draw all permissible factual inferences in favor of the party against whom summary judgment is sought.” Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir.2003) (internal quotation marks omitted). However, “conclusory statements or mere allegations [are] not sufficient to defeat a summary judgment motion.” Davis v. New York, 316 F.3d 93, 100 (2d Cir.2002).
As an initial matter, the claims against the Defendants in their official capacities as federal officers are barred by sovereign immunity, and the district court correctly construed the claims against the Defendants in their individual capacities as an action pursuant to Bivens v. Six Unknown Named Agents of the Fed. Bureau of *531Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971).
The district court properly granted summary judgment with respect to the Plaintiffs’ Fourth Amendment claims in light of our decision in Tabbaa v. Chertoff, 509 F.3d 89 (2d Cir.2007). We explained in Tabbaa that “routine” border stops do not require reasonable suspicion, and that baggage searches are “routine.” Id. at 98. Contrary to the Plaintiffs’ contention, the appropriate issue for a Fourth Amendment challenge to a border stop is not the motive behind the stop, but the intrusiveness of the search. See United States v. Irving, 452 F.3d 110, 123 (2d Cir.2006). It is undisputed that only the baggage, and not the persons, of the Plaintiffs were searched and, accordingly, the searches were routine and did not require reasonable suspicion. See Tabbaa, 509 F.3d at 97-101. Moreover, the duration of the border stops at issue here — two and four hours — does not render them impermissibly intrusive. In Tabbaa, we held that border stops lasting up to six hours, “while certainly inconvenient, ... cannot be considered an unexpected ‘level of intrusion into a person’s privacy.’ ” Id. at 100 (quoting Irving, 452 F.3d at 123).
With respect to the Plaintiffs’ claims that the border stops violated their First Amendment rights to free speech, assembly, and free exercise of religion, and then-rights under the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb, they provided only conclusory allegations to support these claims, which were insufficient to withstand summary judgment. See Davis, 316 F.3d at 100.
Because we have determined that the district court properly granted summary judgment on the merits of the Plaintiffs’ claims, we need not reach the Defendants’ argument that they are also entitled to qualified immunity.
For the foregoing reasons, the judgment of the district court is hereby AFFIRMED.
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SUMMARY ORDER
Petitioner, Saidu Jalloh, allegedly a native and citizen of Sierra Leone, seeks review of a June 11, 2008 order of the BIA affirming the November 9, 2006 decision of Immigration Judge (“IJ”) Philip L. Morace denying petitioner’s application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Saidu Jalloh, No. A 079 303 576 (B.I.A. Jun. 11, 2008), aff'g No. A 079 303 576 (Immig. Ct. N.Y. City Nov. 9, 2006). We assume the parties’ familiarity with the underlying facts and procedural history of the case.
When the BIA summarily affirms the decision of the IJ without issuing an opinion, see 8 C.F.R. § 1003.1(e)(4), this Court reviews the IJ’s decision as the final agency determination. See Shunfu Li v. Mukasey, 529 F.3d 141, 146 (2d Cir.2008). We review the agency’s factual findings, including adverse credibility determinations, under the substantial evidence standard, treating them as “conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); see also Manzur v. U.S. Dep’t of Homeland Sec., 494 F.3d 281, 289 (2d Cir.2007).
*533Substantial evidence supports the BIA’s affirmance of the IJ’s adverse credibility determination. In finding Jalloh not credible, the IJ reasonably considered a forensic expert’s report and testimony, concluding that Jalloh’s identity card had been altered and that his birth certificate was a counterfeit. Although the IJ did not adopt the forensic expert’s ultimate conclusion that either document was fraudulent, he reasonably relied on the expert’s testimony in affording limited weight to those documents. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 342 (2d Cir.2006).
The IJ also reasonably noted Jalloh’s inability to explain how he received the birth certificate from his mother in 1996 when the birth certificate’s format was not employed by the Sierra Leonean government until 1998, and reasonably considered that the face of the birth certificate indicated it was issued in July 2000, two months after Jalloh testified that he saw his mother for the last time. Lastly, the IJ properly noted Jalloh’s inability to explain why two contradictory birth certificates had been submitted. In light of these discrepancies, the IJ appropriately concluded that Jalloh was not credible as to his identity, a sufficient reason for the IJ to deny his asylum claim. See 8 U.S.C. § 1101(a)(42); Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528-29 (2d Cir.2006).
Because the only evidence of a threat to Jalloh’s life or freedom depended upon his credibility, the adverse credibility determination necessarily precludes success on Jalloh’s claims for withholding of removal and CAT relief, which are based on the same factual predicate. See Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir.2006).
Although Jalloh asserted other bases for remand, we need not address them. The adverse credibility finding is dispositive in this case.
For the foregoing reasons, the petition for review is DENIED. Having completed our review, any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
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SUMMARY ORDER
Alonzo T. Gregory appeals from a December 22, 2008, 2008 WL 5391938, order of the United States District Court for the District of Connecticut (Burns, J.), which denied Gregory’s July 8, 2008 motion in which he moved for a reduction of his 262-month sentence under 18 U.S.C. § 3582(c). He requested a hearing on his motion— presumably meaning an oral hearing, given that he had the opportunity to present his contentions in writing. The district court, without affording Gregory an oral hearing, determined that his record “indicates the need to protect the public from [his] further crimes,” and therefore denied his motion. We assume the parties’ familiarity with the underlying facts, the procedural history, and the issues presented for review.
I. Background
After pleading guilty on December 3, 1996 to a one-count indictment, Gregory was sentenced on November 14, 1997 to a term of 262 months of imprisonment for possession with intent to distribute and distribution of five grams or more of cocaine base in violation of 21 U.S.C. § 841(a)(1). The court determined that Gregory had a criminal history category of VI given, inter alia, his membership in a street gang and 13 prior criminal convictions for various offenses, including burglary, larceny, weapons charges, assault, robbery, forgery, and breach of the peace. There were also state charges pending against Gregory at the time, including multiple drug charges, aggravated unlicensed operation of a vehicle, and criminal use of a firearm. The court calculated Gregory’s base offense level to be 34, which, with his criminal history category of VI, yielded a Guidelines-recommended sentencing range of 262 to 327 months. Thus, Gregory’s original sentence of 262 months was at the bottom of the then-effective range for crack cocaine offenses.
Bureau of Prisons records indicate that while incarcerated in July 2000, Gregory was involved in a fight with another inmate, resulting in 25 days of disciplinary segregation. The records also report that in July 2002, Gregory was again involved in a fight with another inmate. The records indicate that in May 2006, while still imprisoned, Gregory was involved in yet another assault incident that resulted in serious injury.
II. Applicable Law
Generally, a district court may not modify a term of imprisonment once it has been imposed. See Poindexter v. United States, 556 F.3d 87, 89 (2d Cir.2009) (“A sentencing court may not modify a sentence once it has been imposed except under the limited conditions set forth in 18 U.S.C. § 3582.”); Cortorreal v. United States, 486 *538F.3d 742, 744 (2d Cir.2007). A limited exception to this rule is embodied in 18 U.S.C. § 3582(c)(2), which provides that a district court may modify a sentence after it has been imposed
in the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission pursuant to 28 U.S.C. [§ ] 994(o), upon motion of the defendant or the Director of the Bureau of Prisons, or on its own motion, the court may reduce the term of imprisonment, after considering the factors set forth in section 3553(a) to the extent that they are applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.
18 U.S.C. § 3582(c)(2).
Section 1B1.10(a) of the Sentencing Guidelines, entitled “Reduction in Term of Imprisonment as a Result of Amended Guideline Range (Policy Statement),” provides that “[i]n a case in which a defendant is serving a term of imprisonment, and the guideline range applicable to that defendant has subsequently been lowered as a result of an amendment to the Guidelines Manual ... the court may reduce the defendant’s term of imprisonment as provided by 18 U'.S.C. [§ ] 3582(c)(2).” U.S.S.G. § lB1.10(a). The Application Notes and Commentary to this Section state that a court faced with a motion for reduction of sentence under § 3582(c)(2) may consider, in addition to the factors in 18 U.S.C. § 3553(a), “the nature and seriousness of the danger to any person or the community that may be posed by a reduction in the defendant’s term of imprisonment” and the “post-sentenc[e] conduct of the defendant that occurred after imposition of the original term of imprisonment.” U.S.S.G. § 1B1.10 Application Notes (l)(B)(i).
Effective November 7, 2007, the Sentencing Commission reduced by two levels the offense levels applicable to crack cocaine offenses. U.S.S.G. Supp. to App. C., Amend. 706; see also United States v. Borden, 564 F.3d 100, 102 (2d Cir.2009). On December 11, 2007, the Commission voted to apply the amended Guidelines retroactively, effective March 3, 2008. U.S.S.G. Supp. to App. C, Amend. 713. Thus, as both parties agree, Gregory’s sentencing range has been reduced, making him potentially eligible for a reduction of his sentence as provided by 18 U.S.C. § 3582(c)(2).
We review a district court’s ruling on a motion under 18 U.S.C. § 3582(c)(2) for abuse of discretion. Borden, 564 F.3d at 104 (joining sister circuits in adopting the abuse-of~discretion standard of review for this Court’s review of motions made pursuant to § 3582(c)(2)).
III. Analysis
As required by 18 U.S.C. § 3582(c)(2), the district court judge appropriately considered the factors in 18 U.S.C. § 3553(a) and the Commentary to U.S.S.G. § 1B1.10 in denying Gregory’s motion for a reduction of his sentence. She noted that Gregory has a lengthy criminal history and that Bureau of Prisons records indicate that he has been involved in violent altercations while incarcerated. Based on this, she found a need to protect the public from further crimes and, after noting that his sentence is at the top of the now-current Guidelines range, she declined to reduce Gregory’s sentence.
Gregory argues that had he been given opportunity for an oral hearing, he would have “taken issue with the allegations” regarding his conduct while imprisoned. Moreover, he asserts that, at a hearing, he may have been able to “convince the court that his exemplary behavior in other ar*539eas” would mitigate some of this conduct. Finally, while Gregory acknowledges that the district judge may take into account his post-conviction conduct when ruling on a § 3582(c)(2) motion, he argues that since the government’s brief in opposition to his motion referenced his post-conviction conduct only generally, he was not given a chance to respond to the specific conduct that factored into the district court’s determination. In this regard, Gregory contends that the failure to afford a hearing violated his due process rights.
Gregory’s arguments are unavailing. Section 1B1.10 makes clear that “proceedings under 18 U.S.C. [§ ] 3582(c)(2) and this policy statement do not constitute a full resentencing of the defendant.” U.S.S.G. § lB1.10(a)(3). A court’s resolution of a motion for sentence reduction need not constitute a full-blown resentencing procedure; otherwise, the adjudication of the motion would be the resentencing and the motion would be moot. Moreover, Federal Rule of Criminal Procedure 43(b)(4) makes clear that a defendant’s presence is not required when the “proceeding involves the correction or reduction of sentence under ... 18 U.S.C. § 3582(c).” Fed.R.Crim.P. 43(b)(4). Therefore, the substantive requirements that apply to sentencing hearings under Federal Rule of Criminal Procedure 32(i), see, e.g., United States v. Gutierrez, 555 F.3d 105, 109 (2d Cir.2009) (acknowledging that “a defendant is entitled to have his counsel address a sentencing court”), do not apply to motions for sentence reduction under § 3582(c). Accordingly, Gregory was not entitled to an oral hearing on his motion.
We are similarly unconvinced by Gregory’s argument that he was not given an opportunity to respond to the factors the court considered in denying his motion. While he accurately asserts that the government’s brief before the district court did not mention specifically his post-incarceration conduct, the government’s brief did specify generally that the district court may consider this type of information, and it stated that such information would be forthcoming from the Probation Office. Moreover, as the government notes, Gregory’s prison records on which the district court relied were posted on PACER on December 1, 2008, three weeks before the district court denied Gregory’s motion, with notice to Gregory’s counsel. Thus, to the extent Gregory wished to respond to these reports, he had ample time to do so. Yet before the district court ruled on his § 3582(c) motion, Gregory did not inform the court that he disagreed with any of the factual assertions in the Bureau of Prisons report. Nor did he move for reconsideration after the court issued its ruling. Similarly, Gregory offers no reason that he could not have presented the district court with examples of his allegedly mitigating behavior while incarcerated by written brief below.
We have considered Gregory’s remaining arguments and find them to be without merit. For the foregoing reasons, were hereby AFFIRM the order of the district court.
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SUMMARY ORDER
Plaintiff Rose Desia, trustee of the Barbara Bess Trust f/b/o Julius Solomon (the “Solomon trust”), appeals from an award of summary judgment in favor of defendant GE Life & Annuity Assurance Co. (“GE”) on Desia’s claim that GE breached contracts with Bess when, upon Bess’s *544death, it paid the proceeds of two annuities to Bess’s sisters rather than to a trust intended to benefit Bess’s longtime companion, Julius Solomon. We review an award of summary judgment de novo, and we will affirm only if the record, viewed in the light most favorable to the nonmoving party, reveals no genuine issue of material fact. See Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Ollman v. Special Bd. of Adjustment No. 1063, 527 F.3d 239, 245 (2d Cir.2008). We assume the parties’ familiarity with the facts and record of prior proceedings, which we reference only as necessary to explain our decision to affirm.
1. Bess’s Intent
Plaintiff submits that the district court erred in determining that she had failed to adduce sufficient evidence to raise a material question of fact regarding Bess’s intent to have defendants pay the proceeds of her annuities to the Solomon trust rather than to her sisters, the original beneficiaries named in the policy. See, e.g., Bigley v. Pac. Standard Life Ins. Co., 229 Conn. 459, 462, 642 A.2d 4 (1994) (holding insurer discharged from liability if, in good faith, it pays beneficiary designated by policyholder). We disagree. The district court carefully and accurately detailed the evidence of two change-of-beneficiary forms that Bess signed in blank before her death, but that her financial adviser, James Stewart, filled out and submitted to defendant only after Bess’s death. The submitted forms indicated that the annuities’ beneficiary was to be the “Barbara Bess Trust” rather than Bess’s sisters. But, as the district court observed, no such trust exists. The only trusts relevant to this action are the Solomon trust and the Barbara Bess Charitable Remainder Unitrust, of which Bess’s sisters were the beneficiaries. The only evidence plaintiff proffered to support her claim that Bess intended to make the Solomon trust the beneficiary of her annuities was Desia’s own testimony that Bess asked whether Desia, as trustee of the Solomon trust, was required to sign the change of beneficiary form. Desia Dep. at 119:16. This statement raises no triable fact issue because a jury would have to engage in impermissible speculation to infer from this single query that Bess intended her annuities to be paid to Julius Solomon. See Harlen Assocs. v. Inc. Vill. of Mineola, 273 F.3d 494, 502 (2d Cir.2001). Desia acknowledged that Bess never said anything to her indicating an intent to have the proceeds of her annuities paid to Solomon. Further, the record is replete with uncontradicted evidence that Bess completed the change of beneficiary form in accordance with her estate plan, which named her estate as the beneficiary of all her qualified annuities. See, e.g., Holcomb v. Iona Coll., 521 F.3d 130, 137 (2d Cir.2008). Accordingly, like the district court, we conclude that Desia failed to adduce evidence sufficient to defeat summary judgment.
2. Stewart’s Credibility
Desia also argues that material questions of fact as to the credibility of Bess’s financial adviser, James Stewart, precluded summary judgment. We are not persuaded. Although witness credibility is usually a question of fact for the jury, see, e.g., Dillon v. Morano, 497 F.3d 247, 254 (2d Cir.2007), “[b]road, conclusory attacks on the credibility of a witness will not, by themselves, present questions of material fact” for trial, Island Software & Computer Serv., Inc. v. Microsoft Corp., 413 F.3d 257, 261 (2d Cir.2005). A plaintiff opposing summary judgment must still “identify affirmative evidence from which a jury could find that the plaintiff has car*545ried ... her burden of proving the pertinent [intent].” Crawford-El v. Britton, 523 U.S. 574, 600, 118 S.Ct. 1584, 140 L.Ed.2d 759 (1998); see also McCullough v. Wyandanch Union Free Sch. Dist., 187 F.3d 272, 280 (2d Cir.1999) (observing that party “cannot defeat summary judgment ... merely by impugning [a witness’s] honesty”).
Desia attacks Stewart’s credibility based on the witness’s acknowledgment that, in a 2000 affidavit, he had “embellished” his recollection about the life-threatening nature of Bess’s illness. See Stewart Dep. at 33. Desia also identifies evidence impugning Stewart’s competence as a financial adviser, e.g., evidence that Stewart (1) had Bess sign a blank form, (2) did not recollect Bess’s lawyer’s written instructions, (3) misunderstood who should be the new beneficiary, and (4) did not attempt to correct the form for four months after realizing the forms had been incorrectly filled out. This general attack on Stewart’s competence, even if credited, provides no evidence that would permit a reasonable jury to find that Bess intended to designate Julius Solomon or the Solomon trust as the beneficiary of her annuities. Accordingly, we uphold the award of summary judgment in favor of defendants.
We have considered plaintiffs other arguments on appeal and conclude that they lack merit. Accordingly, we AFFIRM the judgment of the district court.
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SUMMARY ORDER
Defendant Charles Hilaire appeals the April 28, 2008 judgment resulting from his conviction of two counts of conspiring to commit a Hobbs Act robbery, 18 U.S.C. § 1951(a); one count of Hobbs Act robbery, 18 U.S.C. § 1951(a); and one count of using a firearm in furtherance of a robbery, 18 U.S.C. § 924(c). On May 7, 2008, we affirmed the conviction of Hilaire’s co-defendant, Carlo Elisca Cerome. United States v. Cerome, 277 Fed.Appx. 85 (2d Cir.2008). We presume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.
Hilaire’s lone contention is that certain comments in the prosecutor’s rebuttal summation constituted prosecutorial misconduct. We will reverse a jury’s verdict on this basis only if the challenged acts were “so severe and significant as to result in the denial of [the defendant’s] right to a fair trial.” United States v. Rahman, 189 F.3d 88, 140 (2d Cir.1999). When examining whether a prosecutor’s comments caused sufficient prejudice to warrant reversal, we look to the severity of the putative impropriety, the use of *547curative measures, and the “certainty of conviction absent the misconduct.” United States v. Rivera, 22 F.3d 430, 437 (2d Cir.1994).
Hilaire challenges two features of the prosecutor’s rebuttal summation. First, he argues that the prosecutor used improper adjectives and other phrases to describe some of the arguments that his counsel presented to the jury during his closing. Second, he asserts that the prosecutor improperly sought to shift the burden of proof by arguing to the jury that defense counsel “could have subpoenaed” certain medical records “if [they] thought they were so important.” Neither of these contentions serves as a basis for reversal, and we therefore affirm the judgment below.
We reject at the outset Hilaire’s burden-shifting argument. The prosecutor’s argument was made in response to arguments by both defendants’ counsel relating to the government’s failure to offer certain medical records during its case-in-chief, and the prosecutor did not suggest that either defendant had an obligation to testify or produce evidence. See United States v. Rosa, 11 F.3d 315, 342-43 (2d Cir.1993). Moreover, immediately after the district court denied counsel’s objection to the argument, the prosecutor emphasized to the jury that the government had “the burden of proof and the burden of proof is beyond a reasonable doubt.” Therefore, the prosecutor’s remarks relating to defendants’ ability to obtain medical records did not constitute prosecutorial misconduct.
With respect to the remainder of the prosecutor’s challenged comments, we intimate no view as to their propriety. This is because, assuming, arguendo, that the prosecutor’s word choice in characterizing certain arguments made by defense counsel was inappropriate, the government presented overwhelming evidence of Hilaire’s guilt to the jury. Under these circumstances, it cannot be said that the prosecutor’s remarks “so infected the trial with unfairness as to make the resulting conviction a denial of due process.” Darden v. Wainwright, 477 U.S. 168, 181, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986) (internal quotation marks omitted).
We have reviewed Hilaire’s remaining arguments and find them to be without merit. Accordingly, the judgment of the district court is hereby AFFIRMED.
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SUMMARY ORDER
Appellant Olive J. Gordon appeals from the judgment of the district court granting summary judgment to Health & Hospitals Corporation and Kings County Hospital Center in Appellant’s action for age discrimination and retaliation. Defendants argue that the district court correctly granted them motion for summary judgment. We assume the parties’ familiarity with the facts, proceedings below, and specification of appellate issues and hold as follows.
When a district court grants summaxy judgment, we review the decision de novo. Summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. See Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292, 300 (2d Cir.2003). In determining whether there are genuine issues of material fact, a court is “required to x'esolve all ambiguities and draw all permissible factual inferences in favor of the party against whom summaxy judgment is sought.” Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir.2003) (internal quotation marks omitted). However, “conclusory statements or mere allegations [are] not sxifficient to defeat a summary judgment motion.” Davis v. State of New York, 316 F.3d 93, 100 (2d Cir.2002).
Having conducted an independent and de novo review, we affirm for substantially the reasons stated by the distx-ict court in its thorough and well-reasoned opinion. We have considered all of Appellant’s arguments on appeal and find them to be without merit.
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SUMMARY ORDER
Petitioner Bi Feng Xie, a native and citizen of China, seeks review of a December 19, 2008 order of the BIA affirming the February 6, 2007 decision of Immigration Judge Brigitte LaForest, which denied her application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Bi Feng Xie, No. A095 688 119 (B.I.A. Dec. 19, 2008), aff'g No. A095 688 119 (Immig. Ct. N.Y. City Feb. 6, 2007). We assume the parties’ familiarity with the underlying facts and procedural history of this case.
When the BIA issues an opinion that fully adopts the IJ’s decision, we review the IJ’s decision. See Gao v. Gonzales, 424 F.3d 122, 124 (2d Cir.2005). In doing so, we review factual findings under the substantial evidence standard. 8 U.S.C. § 1252(b)(4)(B); see, e.g., Corovic v. Mukasey, 519 F.3d 90, 95 (2d Cir.2008). Questions of law and the application of law to undisputed facts are reviewed de novo. Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.2008). For asylum applications such as Xie’s, which are governed by the REAL ID Act of 2005, the agency may base a credibility finding on an applicant’s demeanor, the plausibility of his or her account, and inconsistencies in his or her statements, without regard to whether these indicators go “to the heart of the applicant’s claim.” 8 U.S.C. § 1158(b)(l)(B)(iii); see also Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir.2008).
In this case, the IJ’s adverse credibility determination is supported by substantial evidence. The IJ accurately noted that although Xie stated in her airport and “credible fear” interviews that she was fleeing China to avoid marriage, she later *550testified that she fled China after she was forced to undergo an abortion. See Guan v. Gonzales, 432 F.3d 391, 398 (2d Cir.2005) (finding it reasonable to base an adverse credibility determination “on the commonsense observation that it is inconsistent for a petitioner to respond to the same question about the nature of his asylum claim with two entirely different responses”).
Additionally, the IJ noted that Xie also testified inconsistently when asked to explain her failure to mention the forced abortion during her airport and credible fear interviews. Xie initially testified that, after she arrived in the United States, she spoke with her parents, who advised her to claim that she was fleeing a forced marriage and informed her of the smuggler’s threat. When asked how she knew to assert a forced marriage claim at the airport interview, which was conducted prior to Xie’s conversation with her parents, Xie admitted that she had not been truthful. A reasonable fact finder would not be compelled to accept Xie’s explanation for her failure to mention her forced abortion during her airport and credible fear interviews after she admitted that she had not been truthful during those sessions. See Majidi v. Gonzales, 430 F.3d 77, 81 (2d Cir.2005). Moreover, contrary to Xie’s arguments, the administrative record before the court suggests that the record of her airport interview is an accurate representation of her statements. See Ramsameachire v. Ashcroft, 357 F.3d 169, 179 (2d Cir.2004). Thus, the IJ properly relied on the airport interview in finding that Xie provided inconsistent accounts. See Guan, 432 F.3d at 398.
The IJ also made a negative demeanor finding noting that Xie refused to deviate from a “narrative” when asked a specific question about the manner in which her alleged abortion was performed. The IJ’s evaluation of Xie’s demeanor in assessing her credibility is entitled to “particular deference.” See Chen v. U.S. Dep’t of Justice, 426 F.3d 104, 113 (2d Cir.2005).
The adverse credibility determination in this case was also a valid basis for denying Xie’s claims for withholding of removal and CAT relief, which were based on the same factual predicate as her asylum claim and required Xie to satisfy a higher burden of proof. See Paul v. Gonzales, 444 F.3d 148, 155 (2d Cir.2006).
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted with respect to this petition is VACATED, and any pending motion for a stay of removal during the review of this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
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OPINION OF THE COURT
NYGAARD, Circuit Judge.
Corey Gregory pleaded guilty to being a felon in possession of a firearm pursuant to 18 U.S.C. § 922(g)(1). He appeals the sentence, arguing that it was substantively unreasonable. We review the District Court’s sentence for substantive reasonableness under an abuse of discretion standard, taking into account the totality of the circumstances. For the reasons stated below, we will affirm.
Gregory argues on appeal that the District Court committed procedural error in failing to consider and adequately address his argument that § 2K2.1 should be given little weight. He argues that this Guidelines section was improperly formulated and that the District Court failed to give adequate consideration to this argument. We find this argument meritless. The record conclusively demonstrates that the District Court considered and ultimately rejected Gregory’s argument. The District Court characterized Gregory’s argument as alleging that § 2K2.1 had, over time, escalated in severity without a sufficient basis for that increase. The District Judge, after considering the argument, specifically determined that “[tjhere’s nothing about the so-called increases, in this Court’s judgment, that required intervention.” The District Court clearly considered and rejected Gregory’s argument and we discern no procedural error in the District Court’s response to Gregory’s argument.
Since the District Court did not err procedurally, we will affirm a sentence as long as it falls within the broad range of possible sentences that can be considered reasonable in light of the § 3553(a) factors. A within-Guidelines sentence is more likely to be a reasonable one. As we have recently stated, “if the district court’s sentence is procedurally sound, we will affirm it unless no reasonable sentencing court would have imposed the same sentence on that particular defendant for the reasons the district court provided.” United States v. Tomko, 562 F.3d 558, 568 (3d Cir.2009) (en banc). In this ease, the District Court concluded that an 80-month term of imprisonment was reasonable, and we agree. We will affirm the sentence.
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SUMMARY ORDER
Petitioner Ai Feng Chen, a native and citizen of China, seeks review of the March 16, 2009 order of the BIA denying her motion to reconsider. In re Ai Feng Chen, No. A077 977 926 (B.I.A. Mar. 16, 2009). We assume the parties’ familiarity with the underlying facts and procedural history of the case.
We review the BIA’s denial of a motion to reopen or reconsider for abuse of discretion. Zhao Quan Chen v. Gonzales, 492 F.3d 153, 154 (2d Cir.2007) (per cu*553riam). We find no abuse of discretion in this case.
I. Motion to Reconsider
The BIA properly denied Chen’s motion to reconsider. While a motion to reconsider must specify errors of fact or law in the BIA’s decision, see 8 C.F.R. § 1003.2(b)(1), Chen’s argument that the BIA “ignored” material factual and legal errors that she described in her motion is without merit. To the contrary, in its decision, the BIA addressed the very issues she claims it ignored. Therefore, the BIA did not abuse its discretion in denying Chen’s motion.
II. Motion to Reopen
Chen further argues that the BIA erred by denying her motion as time and number barred because she was entitled to file a motion to reconsider. That argument misunderstands the BIA’s decision, which construed her motion as both a motion to reopen and a motion to reconsider. The BIA properly construed the motion as seeking reopening because Chen submitted additional evidence in support of her motion. See 8 C.F.R. § 1003.2(c)(2); Jie Chen v. Gonzales, 436 F.3d 76, 78-79 (2d Cir.2006) (noting that the BIA must construe motions not just on their captions but also on their substance). The regulations permit an alien to file one motion to reopen and require that it be filed within 90 days after the date on which a final administrative decision was rendered in the proceeding sought to be reopened. See 8 C.F.R. § 1003.2(c)(2). Thus, contrary to Chen’s argument, the BIA properly denied her motion to reopen because it was the second such motion she had filed and was filed more than 90 days after the final administrative decision was rendered, and none of the exceptions to the time and number limitations apply.
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
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SUMMARY ORDER
Asif Hamid, a native and citizen of Pakistan, seeks review of a July 14, 2008, order of the BIA affirming the January 18, 2007, decision of Immigration Judge (“IJ”) George T. Chew, which denied his application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”).1 In re Asif Hamid, et al., Nos. A098 422 886/887/888/889/890 (B.I.A. July 14, 2008), aff'g Nos. A098 422 886/887/888/889/890 (Immig. Ct. N.Y. City Jan. 18, 2007). We assume the parties’ familiarity with the underlying facts and procedural history in this case.
We review the agency’s factual findings, including adverse credibility determinations, under the substantial evidence standard. 8 U.S.C. § 1252(b)(4)(B); see also Manzur v. U.S. Dep’t of Homeland Sec., 494 F.3d 281, 289 (2d Cir.2007). For asylum applications governed by the REAL ID Act, the agency may, considering the totality of the circumstances, base a credibility finding on an asylum applicant’s “demeanor, candor, or responsiveness,” the plausibility of his or her account, and inconsistencies in his or her statements, without regard to whether they go “to the heart of the applicant’s claim.” See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir.2008).
In finding Hamid not credible, the IJ reasonably relied on: (1) Hamid’s failure to provide consistent dates regarding when he joined the PPP; and (2) the ambiguity in Hamid’s testimony regarding whether he had ever seen a First Information Report (“FIR”) issued against him in 1991 and his failure to bring this FIR to the attention of the court. Although Ham-id offered explanations for both these inconsistencies, no reasonable fact-finder would be compelled to credit them. See Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir.2005) (finding that if the applicant offers an explanation for inconsistent testimony, the agency need not credit that explanation unless the explanation would compel a reasonable fact-finder to do so).
*558The IJ also reasonably found implausible that Pakistani authorities would still be interested in Hamid despite his departure fifteen years ago. Although a finding of implausibility must not be based on flawed reasoning, “bald” speculation, or conjecture, see Ming Xia Chen v. BIA, 435 F.3d 141, 146 (2d Cir.2006), we will not disturb an implausibility finding if it is “tethered to record evidence, and there is nothing else in the record from which a firm conviction of error could properly be derived.” See Wensheng Yan v. Mukasey, 509 F.3d 63, 67 (2d Cir.2007); see also Siewe v. Gonzales, 480 F.3d 160, 169 (2d Cir.2007). Here, the IJ’s implausibility finding was not erroneous because it was: (1) tethered to record evidence regarding the prominence of the PPP party in Pakistani politics; see Wensheng Yan, 509 F.3d at 67 (finding implausibility findings to be reasonable when they are tethered to the record evidence); (2) supported by the common sense inference that, absent evidence indicating otherwise, authorities will be much less likely to pursue a person who has been away for over fifteen years; see Siewe, 480 F.3d at 168-69 (finding that speculation inhered in inference is not bald if based on even a single fact in the record viewed in light of common sense and ordinary experience); and (3) reasonably based upon the conclusion that if one has returned to the country of alleged persecution in the past without incident, the same is likely to occur upon future return trips, see Wensheng Yan, 509 F.3d at 68 n. 2 (finding return trips to a country of persecution support an IJ’s implausibility finding).
Additionally, contrary to Hamid’s argument, the IJ did not err in according little evidentiary weight to an “FIR” allegedly issued against him in 2005 because Hamid mistakenly testified that it was issued in 2004 and his brother’s letter failed to mention, as Hamid testified, that a hefty bribe was paid in order to obtain a copy. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 342 (2d Cir.2006) (finding that the weight afforded to the applicant’s evidence in immigration proceedings lies largely within the discretion of the IJ).
Ultimately, because no reasonable fact-finder would be compelled to conclude to the contrary, the agency’s adverse credibility determination was supported by substantial evidence. See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 165-66. Thus, the agency’s denial of Hamid’s application for asylum was proper. See 8 C.F.R. § 208.13(b). Because Hamid based his claims for withholding of removal and CAT relief on the same factual predicate as his asylum claim, and the IJ found that this evidence lacked credibility, those claims necessarily fail. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.2006); Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 523 (2d Cir.2005).
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
. Asif Hamid was the lead petitioner before the agency. Accordingly, we refer exclusively to him throughout. His spouse, Rashida Arshi, and children, Wasif Hamid, Aisha Hamid, and Hariss Hamid, were included as derivative applicants on his asylum application and appear as petitioners in this Court.
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SUMMARY ORDER
Petitioner Sheng Jie Dong, a native and citizen of the People’s Republic of China, seeks review of a November 28, 2007 order of the BIA denying his motion to reopen. In re Sheng Jie Dong, No. A073 077 867 (B.I.A. Nov. 28, 2007). We assume the parties’ familiarity with the underlying facts and procedural history in this case.
We review the BIA’s denial of a motion to reopen for abuse of discretion. See Ke Zhen Zhao v. U.S. Dep’t of Justice, 265 F.3d 83, 90 (2d Cir.2001). A motion to reopen must be filed no later than 90 days after the final administrative decision is rendered in the proceedings that the applicant seeks to reopen. 8 U.S.C. § 1229a(c)(7); 8 C.F.R. § 1003.2(c)(2). In this case, Dong did not file the underlying motion to reopen until more than eight years after the entry of the final order in his proceedings, and there is no dispute that his motion was untimely. However, when a movant raises a claim of ineffective assistance of counsel, the filing deadline may, under certain conditions, be equitably tolled. See Jin Bo Zhao v. INS, 452 F.3d 154, 156-59 (2d Cir.2006). The filing deadline may also be excused when the movant submits evidence demonstrating changed country conditions materially affecting his eligibility for relief. See 8 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3)(ii).
To merit equitable tolling, a movant alleging ineffective assistance of counsel must demonstrate that he pursued his case with due diligence during the period of time for which he seeks tolling. See Iavorski v. I.N.S., 232 F.3d 124, 134-35 (2d Cir.2000). “[N]o matter how egregiously ineffective counsel’s assistance may have been, an alien will not be entitled to equitable tolling unless he can affirmatively demonstrate that he exercised reasonable due diligence.” See Cekic v. INS, 435 F.3d 167, 170 (2d Cir.2006). In this case, the BIA did not abuse its discretion when it found that Dong did not exercise the requisite due diligence. Dong knew, or should have known, of his former counsel’s alleged ineffective assistance by May 28, 1996, the date of the hearing at which Dong withdrew his asylum application and instead requested voluntary departure, allegedly under duress and at the urging of his former counsel. See Iavorski, 232 F.3d at 134. However, Dong did not raise his ineffective assistance claim for the first time until January 2004, more than seven years later, when he filed his first motion to reopen with the Immigration Judge. Dong has offered no explanation for this delay. Given Dong’s lack of diligence, the BIA did not err in declining to equitably toll the deadline for his second motion to reopen based on ineffective assistance of counsel. See id.
In addition, the BIA did not abuse its discretion in finding that the documentation Dong submitted with his motion did not suffice to establish changed country conditions in China excusing the untimeliness of his motion to reopen. See 8 U.S.C. § 1229a(c)(7)(C)(ii). We have previously reviewed the BIA’s consideration of Dong’s evidence, and evidence similar to it, and found no error in the agency’s conclusion that such evidence is insufficient to establish materially changed country conditions in China. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 156-65 (2d Cir.2008). Dong argues that the BIA failed to give meaningful consideration to the evi*561dence that he submitted in support of his motion. However, the BIA is not required to “expressly parse or refute on the record each individual argument or piece of evidence offered by the petitioner.” Wei Guang Wang v. BIA, 437 F.3d 270, 273-75 (2d Cir.2006). While the BIA must consider all evidence in the record, it “may so in summary fashion without a reviewing court presuming that it has abused its discretion.” Id. at 275 (noting that “[t]his is particularly true for evidence, such as the oft-cited Aird Affidavit, which the BIA is asked to consider time and again.”). Accordingly, the BIA did not abuse its discretion in concluding that none of the evidence that Dong submitted in support of his motion justified the reopening of his proceedings.
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
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SUMMARY ORDER
Petitioners Yinping Jiang and Qi Chao Jiang, natives and citizens of the People’s Republic of China, seek review of: (1) the July 10, 2007 order of the BIA reversing the July 11, 2005 decision of Immigration Judge (“IJ”) Elizabeth A. Lamb, which granted them application for asylum, In re Yinping Jiang and Qi Chao Jiang, Nos. A097 646 602, A097 646 603 (B.I.A. July 10, 2007), rev’g Nos. A097 646 602, A097 646 603 (Immig. Ct. N.Y. City July 11, 2005); and (2) the January 10, 2008 order of the BIA denying them motion to reconsider and reopen, In re Yinping Jiang and Qi Chao Jiang, Nos. A097 646 602, A097 646 603 (B.I.A. Jan. 10, 2008). We assume the parties’ familiarity with the underlying facts and procedural history in this case.
I. Dkt. No. 07-3337-ag (L): Denial of Application
We review the agency’s factual findings under the substantial evidence standard. 8 U.S.C. § 1252(b)(4)(B); see also Corovic v. Mukasey, 519 F.3d 90, 95 (2d Cir.2008). We review de novo questions of law and the application of law to undisputed fact. Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.2008).
Petitioners argue that the BIA erred in concluding that they failed to demonstrate a well-founded fear of persecution based on the birth of their U.S. citizen children. We conclude that petitioners’ argument fails because we have previously reviewed the BIA’s consideration of evidence similar to that which petitioners presented and have found no error in its conclusion that such evidence is insufficient to establish an objectively reasonable fear of persecution. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 156-65 (2d Cir.2008); see also Wei Guang Wang v. BIA, 437 F.3d 270, 275 (2d Cir.2006) (noting that while the BIA must consider evidence such as “the oft-cited Aird affidavit, which [it] is asked to consider time and again[,] ... it may do so in summary fashion”). Further, the BIA reasonably found that evidence suggesting that petitioners’ relatives had been forcibly sterilized did not demonstrate that their fear of forced sterilization was objectively reasonable because such evidence did not detail the treatment of similarly situated individuals, ie., Chinese nationals with U.S. citizen children. See Jian Hui Shao, 546 F.3d at 160-61.
*567Petitioners have not cited any evidence in the record contradicting the BIA’s dis-positive finding by showing that Chinese nationals returning to Fujian Province with U.S. citizen children have been subjected to forced sterilization. See Jian Hui Shao, 546 F.3d at 160-61.
II. Dkt. No. 08-0660-ag (Con): Denial of Motion to Reopen
We review the agency’s denial of a motion to reopen or reconsider for abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir.2006); Jin Ming Liu v. Gonzales, 439 F.3d 109, 111 (2d Cir.2006). When the agency considers relevant evidence of country conditions in evaluating a motion to reopen, we review the agency’s factual findings under the substantial evidence standard. See Jian Hui Shao, 546 F.3d at 169.
The BIA did not abuse its discretion in denying petitioners’ motion to reconsider and reopen. The BIA did not err in declining to consider the 1980 Nationality Law of the People’s Republic of China as it was previously available, and not in the record. See INS v. Abudu, 485 U.S. 94, 104-05, 108 S.Ct. 904, 99 L.Ed.2d 90 (1988). Moreover, although the BIA erred in finding their motion to reopen untimely, see 8 C.F.R. § 1003.2(c)(2) (requiring an alien seeking to reopen proceedings to file a motion to reopen no later than 90 days after the date on which the final administrative decision was rendered), it reasonably found that petitioners failed to demonstrate their prima facie eligibility for relief on account of the birth of their third U.S. citizen child, which provided a sufficient basis for denying their motion to reopen, see Abudu, 485 U.S. at 104-05, 108 S.Ct. 904.
For the foregoing reasons, the petitions for review are DENIED. As we have completed our review, any stay of removal that the Court previously granted in these petitions is VACATED, and any pending motion for a stay of removal in these petitions is DISMISSED as moot. Any pending request for oral argument in these petitions is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
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SUMMARY ORDER
Petitioner Pedro Rafael Montesquieu, a native and citizen of the Dominican Republic, seeks review of the October 27, 2008 order of the BIA denying his motion to reopen his removal proceedings. In re Pedro Rafael Montesquieu, No. A076 553 152 (B.I.A. Oct. 27, 2008). We assume the parties’ familiarity with the underlying facts and procedural history of the case.
We review the BIA’s denial of a motion to reopen for abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir.2006) (per curiam) (citing INS v. Doherty, 502 U.S. 314, 322-23, 112 S.Ct. 719, 116 L.Ed.2d 823 (1992)). Montesquieu filed his motion to reopen his removal proceedings based on the allegation that he was denied effective assistance of counsel in violation of his Fifth Amendment rights, because his former counsel failed to adequately challenge the determination of the Immigration judge (“IJ”) that he was ineligible for cancellation of removal under 8 U.S.C. § 1229b(a). Thus, to succeed on his motion, Montesquieu needed to demonstrate that: (1) competent counsel would have acted otherwise; and (2) he was prejudiced by his counsel’s performance.1 See *571Romero v. INS, 399 F.3d 109, 112 (2d Cir.2005). Here, the BIA reasonably concluded that Montesquieu failed to show he was prejudiced by his former counsel’s performance.
Montesquieu devotes the majority of his brief to refuting the BIA’s conclusion that his conviction under N.Y. Penal Law § 220.39 constituted an aggravated felony, and to asserting that his former counsel was ineffective for failing to argue this point. This issue is ultimately irrelevant to his petition. Even if Montesquieu could prevail on this claim — a question we expressly decline to consider — the BIA correctly concluded that he was statutorily ineligible for cancellation of removal because he could not demonstrate seven years of continuous residence in the United States under 8 U.S.C. §§ 1229b(a) and 1182(a)(2).
Pursuant to 8 U.S.C. § 1229b(a), “[t]he Attorney General may cancel removal in the case of an alien who is inadmissable ... [to] the United States if the alien (1) has been an alien lawfully admitted for permanent residence for not less than 5 years, (2) has resided in the United States continuously for 7 years after having been admitted in any status, and (3) has not been convicted of any aggravated felony.” See Martinez v. Mukasey, 551 F.3d 113, 117 (2d Cir.2008). However, under the so-called “stop-time rule,” any period of “continuous residence or continuous physical presence in the United States shall be deemed to end ... when the alien is served a notice to appear ... or when the alien has committed an offense referred to in [8 U.S.C. § 1182(a)(2) ] that renders the alien inadmissible to the United States under [8 U.S.C. § 1182(a)(2)] ..., whichever is earliest.” 8 U.S.C. § 1229b(d)(l). See also Martinez v. INS, 523 F.3d 365, 369 (2d Cir.2008). In relevant part, offenses under 8 U.S.C. § 1182(a)(2)(A)® include any “violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 802 of Title 21)”; i.e., “a drug or other substance, or immediate precursor, included in schedule I, II, III, IV, or V of part B of th[at] subchapter,” 21 U.S.C. § 802(6). Schedule 11(a)(4) of part B includes “cocaine, its salts, optical and geometric isomers, and salts of isomers ... or any compound, mixture, or preparation which contains any quantity of any of the substances referred to in this paragraph.” 21 U.S.C. § 812(c).
Montesquieu’s 2000 conviction for the attempted criminal sale of cocaine, an offense “relating to a controlled substance” as defined under 21 U.S.C. §§ 802(6) and 812(c), rendered him inadmissible under 8 U.S.C. § 1182(a)(2)(A)®, and it therefore stopped his period of continuous residence pursuant to 8 U.S.C. § 1229b(d)(l). As Montesquieu was first admitted to the United States in 1997, and the underlying offense occurred in 1999, see Martinez, 523 F.3d at 369, he could not demonstrate seven years of continuous residence in the United States. Therefore, Montesquieu was statutorily ineligible for cancellation of removal under 8 U.S.C. § 1229b(a).
Montesquieu’s ineligibility for cancellation of removal demonstrates that the BIA did not abuse its discretion by denying his motion to reopen, since Montesquieu failed to show that he suffered prejudice from his counsel’s actions. We have considered all of Montesquieu’s remaining arguments and determined them to be without merit. For the foregoing reasons, the petition for review is DENIED.
. Additionally, under agency precedent at the time, Montesquieu was required to satisfy the factors described in Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988). As the resolution of Montesquieu's motion did not turn on those factors, it is unnecessary to address Lozada, former Attorney General Mukasey's repudiation of Lozada in Matter of Compean, 24 I. & N. Dec. 710 (A.G.2009) ("Compean I"), or the current Attorney General's decision to vacate Compean I. See Matter of Compean, 25 I. & N. Dec. 1 (A.G.2009) ("Compean II").
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SUMMARY ORDER
Petitioner De Lin Zheng, a native and citizen of the People’s Republic of China, seeks review of a March 20, 2009 order of the BIA affirming the June 8, 2007 decision of Immigration Judge Alan L. Page, denying his application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re De Lin Zheng, No. A096 435 619 (B.I.A. Mar. 20, 2009), aff'g No. A096 435 619 (Immig. Ct. N.Y. City June 8, 2007). We assume the parties’ familiarity with the underlying facts and procedural history in this case.
When the BIA affirms the IJ’s decision in some respects but not others, this Court reviews the IJ’s decision as modified by the BIA decision, i.e., minus the arguments for denying relief that were rejected by the BIA. See Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir.2005). We review the agency’s factual findings, including adverse credibility determinations, under the substantial evidence standard. 8 U.S.C. § 1252(b)(4)(B); see, e.g., Corovic v. Mukasey, 519 F.3d 90, 95 (2d Cir.2008). Questions of law and the application of law to undisputed fact are reviewed de novo. Salimatou Bah v. Mukasey, 529 F.3d 99, 104 (2d Cir.2008).
The agency’s adverse credibility determination is supported by substantial evidence. See Corovic, 519 F.3d at 95. The IJ identified two significant discrepancies in the record: (1) in his written asylum application, Zheng stated that all of the approximately twenty attendees at Reverend Cai’s funeral were arrested, but he testified that only he and three other people were arrested; and (2) Zheng’s written asylum application and a letter from his father both stated that Zheng was detained for four days, but Zheng testified that he was detained for ninety days, and when confronted about the discrepancy, Zheng suggested that “four days” was perhaps an error for “four weeks.” The IJ also noted that both Zheng’s asylum application and his father’s letter lacked any information regarding the threats and harassment his parents allegedly received. Moreover, when asked about his fear of returning to China, Zheng attributed his concern to fears that the family of a man he killed in the United States would seek revenge, a matter not referred to in his asylum application, which was based on his alleged participation in Christian religious services. These were each discrepancies that went to the heart of Zheng’s claim because they call into question the circumstances surrounding Zheng’s arrest and detention and his basis for his fear of returning to China. See Hongsheng Leng v. Mukasey, 528 F.3d 135, 141-42 (2d Cir.2008). Moreover, although Zheng was asked to provide explanations, a reasonable fact finder would not be compelled to accept the ones he offered. See Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir.2005).
Ultimately, we find no error in the IJ’s adverse credibility determination. Thus, the IJ properly denied Zheng’s application for asylum, withholding of removal, and CAT relief. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.2006); Xue Hong Yang, 426 F.3d at 523.
*574Finally, Zheng argues that the BIA erred in denying his motion to remand for consideration of new evidence relating to his CAT claim. This Court reviews the BIA’s denial of a motion to remand for abuse of discretion. See Li Yong Cao v. Dep’t of Justice, 421 F.3d 149, 157 (2d Cir.2005). Here, the BIA considered Zheng’s purportedly new evidence and determined that some of it had already been considered at Zheng’s merits hearing. Moreover, the BIA reviewed a letter allegedly from the village committee and found that it did not indicate that the government was unable or unwilling to control the family of the man Zheng killed, who were purportedly seeking revenge. Thus, the BIA did not abuse its discretion in denying Zheng’s motion to remand. See INS v. Abudu, 485 U.S. 94, 104-05, 108 S.Ct. 904, 99 L.Ed.2d 90 (1988) (finding that the BIA may deny a motion to reopen when the movant has not established a prima facie case for relief or when he fails to submit previously unavailable evidence).
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
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SUMMARY ORDER
Yong Lin, a native and citizen of China, seeks review of an August 1, 2008 order of the BIA affirming the September 6, 2007 decision of Immigration Judge (“IJ”) Dorothy Harbeck, which denied Lin’s application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Yong Lin, No. A 200 036 333 (B.I.A. Aug. 1, 2008), aff'g No. A 200 036 333 (Immig. Ct. N.Y. City Sept. 6, 2007). We assume the parties’ familiarity with the underlying facts and procedural history in this case.
When the BIA adopts the decision of the IJ and supplements the IJ’s decision, we review the decision of the IJ as supplemented by the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.2005). We review the agency’s factual findings under the substantial evidence standard. See 8 U.S.C. § 1252(b)(4)(B); Manzur v. U.S. Dep’t of Homeland Sec., 494 F.3d 281, 289 (2d Cir.2007). We review de novo questions of law and the application of law to undisputed fact. Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.2008).
The agency did not err in denying Lin’s application for asylum, withholding of removal, and CAT relief. Lin waived his claim for withholding of removal by failing to adequately argue that claim in his brief. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 n. 1, 545 n. 7 (2d Cir.2005) (finding that issues not sufficiently argued in the briefs are considered waived and normally will not be addressed on appeal in the absence of manifest injustice). Lin also failed to exhaust his claim for CAT relief based on his illegal departure from China by failing to raise that issue before the BIA. See Theodoropoulos v. I.N.S., 358 F.3d 162, 171 (2d Cir.2004) (“at least one of the purposes served by the exhaustion requirement contained in § 1252(d) is to ensure that the INS, as the agency responsible for construing and applying the immigration laws and implementing regulations, has had a full opportunity to consider a petitioner’s claims before they are submitted for review by a federal court”). Thus, to the extent he raises that issue in this Court, we decline to review his argument. See Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 119-20 (2d Cir.2007).
As to the agency findings that are properly before us, each was proper. The agency reasonably concluded that Lin did not suffer past persecution based on his mother’s alleged forced sterilization. See Shao Yan Chen v. U.S. Dep’t of Justice, 417 F.3d 303, 305 (2d Cir.2005) (holding that children of people persecuted under a coercive family planning policy are not per se eligible for asylum). The agency also properly concluded that, without a spouse or children, Lin’s claim that he fears future persecution because he is “able and ready” to have children is too speculative to demonstrate a well-founded fear of future persecution. See Jian Xing Huang v. INS, 421 F.3d 125, 128-29 (2d Cir.2005) (holding that, absent solid support, in the record for the petitioner’s assertion that *576he would be subjected to forced sterilization, his fear was “speculative at best”).
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
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SUMMARY ORDER
Petitioner De Ming Chi, a native and citizen of China, seeks review of a September 15, 2008 order of the BIA affirming the March 15, 2007 decision of Immigration Judge (“IJ”) Noel A. Brennan denying his application for asylum, withholding of removal, and CAT relief. In re De Ming Chi, No. A 077 000 170 (B.I.A. Sept. 15, 2008), aff'g No. A 077 000 170 (Immig. Ct. N.Y. City Mar. 15, 2007). We assume the parties’ familiarity with the underlying facts and procedural history in this case.
When the BIA agrees with the IJ’s conclusion that a petitioner is not credible and, without rejecting any of the IJ’s grounds for decision, emphasizes particular aspects of that decision, this Court reviews both the BIA’s and IJ’s opinions— or more precisely, the Court reviews the IJ’s decision including the portions not explicitly discussed by the BIA. Yun-Zui Guan v. Gonzales, 432 F.3d 391, 394 (2d Cir.2005). We review the agency’s factual findings, including adverse credibility determinations, under the substantial evidence standard. 8 U.S.C. § 1252(b)(4)(B); see also Corovic v. Mukasey, 519 F.3d 90, 95 (2d Cir.2008). For asylum applications governed by the REAL ID Act of 2005, the agency may, considering the totality of the circumstances, base a credibility finding on an asylum applicant’s demeanor, the plausibility of his or her account, and inconsistencies in his or her statements, without regard to whether they go “to the heart of the applicant’s claim.” 8 U.S.C. § 1158(b)(l)(B)(iii). Thus, we “defer ... to an IJ’s credibility determination unless, from the totality of the circumstances, it is plain that no reasonable fact-finder could make such an adverse credibility ruling.” Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir.2008).
Substantial evidence supports the agency’s adverse credibility determination. The IJ reasonably found that: (1) while Chi testified that he told his friend the details of his alleged arrest and detention, a letter from that friend omitted these details; (2) while a letter from Chi’s father states that Chi “had to accept a thought education,” Chi testified that he never underwent any type of “re-education”; and (3) it was implausible that, in September 2004, Chi read an article entitled, “Nine Commentaries on the Communist Party,” given the government’s evidence that the article was first published in November 2004. While Chi offered explanations before the agency that were responsive to each of these findings, the agency did not err in rejecting them. See Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir.2005). We are similarly unpersuaded by the arguments Chi makes in this Court.
Ultimately, viewed in its totality, substantial evidence supports the IJ’s adverse credibility determination. See 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin, 534 F.3d at 167. Therefore, the IJ properly denied Chi’s application for asylum, withholding of removal, and CAT relief because the only evidence that he would be persecuted or tortured depended on his credibility. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.2006).
We need not reach Chi’s argument that the IJ erred in failing to consider whether he had a well-founded fear of future persecution given that she credited portions of his testimony. Chi failed to exhaust any such argument before the BIA. See Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 119-20 (2d Cir.2007). In any event, contrary to Chi’s argument, while the IJ believed that some aspects of Chi’s story may have been true, she concluded that he exaggerated that story to create an asylum claim he would not otherwise have had. In other words, the IJ found that the *578aspects of Chi’s story that may have been true would not render him eligible for asylum. Cf. Paul, 444 F.3d at 156.
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
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SUMMARY ORDER
Xue Qin Zhu and Chang Chun Zheng, natives and citizens of the People’s Republic of China, seek review of a July 3, 2007 order of the BIA, affirming the July 26, 2005 decision of Immigration Judge (“IJ”) William F. Jankun, which denied their applications for asylum and withholding of removal. In re Xue Qin Zhu, Chang Chun Zheng, Nos. A077 993 981, A073 174 859 (B.I.A. July 3, 2007), aff'g Nos. A077 993 981, A073 174 859 (Immig. Ct. N.Y. City July 26, 2005). We assume the parties’ familiarity with the underlying facts and procedural history in this case.
When the BIA adopts the decision of the IJ and supplements the IJ’s decision, we review the decision of the IJ as supplemented by the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.2005). We review the agency’s factual findings under the substantial evidence standard. 8 U.S.C. § 1252(b)(4)(B); see also Corovic v. Mukasey, 519 F.3d 90, 95 (2d Cir.2008). We review de novo questions of law and the application of law to undisputed fact. Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.2008).
*581As an initial matter, we need not address the government’s contention that the agency’s adverse credibility determination was supported by substantial evidence because petitioners abandon any challenge to the agency’s determination that they were not credible. See Anderson v. Branen, 27 F.3d 29, 30 (2d Cir.1994). Moreover, contrary to the petitioners’ argument, the BIA did not review the IJ’s findings of fact de novo in determining that their evidence failed to demonstrate an objectively reasonable fear of forced sterilization. See 8 C.F.R. § 1003.1(d)(3) (providing that the BIA may not engage in de novo review of the IJ’s findings of fact); see also Jian Hui Shao v. Mukasey, 546 F.3d 138, 162-63 (2d Cir.2008) (concluding that the BIA did not erroneously conduct de novo review of the IJ’s factual findings by making “a legal determination that, while [petitioners’] credible testimony was sufficient to demonstrate a genuine subjective fear of future persecution, more was needed to demonstrate the objective reasonableness of that fear”). Nor did the BIA err by requiring the petitioners to satisfy a higher burden of proof than a reasonably possibility of persecution. See Jian Hui Shao, 546 F.3d at 157.
Petitioners also argue that the agency erred in concluding that they failed to demonstrate their eligibility for asylum and withholding of removal based on the birth of their U.S. citizen children. However, this argument fails because we have previously reviewed the agency’s consideration of evidence similar to that which petitioners presented and have found no error in its conclusion that such evidence is insufficient to demonstrate an objectively reasonable fear of persecution. See Jian Hui Shao, 546 F.3d at 156-65; see also Wei Guang Wang v. BIA, 437 F.3d 270, 275 (2d Cir.2006) (noting that while the BIA must consider evidence such as “the oft-cited Aird affidavit, which [it] is asked to consider time and again[,] ... it may do so in summary fashion”).
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
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SUMMARY ORDER
Defendant-Appellant Charles Givens, pro se, appeals from the order of the United States District Court for the Western District of New York (Arcara, C.J.), granting Appellant’s 18 U.S.C. § 3582 motion for a reduction of his criminal sentence and reducing his sentence of imprisonment by one month. We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.
We review a district court’s ruling on a § 3582 motion for abuse of discretion. See United States v. Borden, 564 F.3d 100, 104 (2d Cir.2009). Section 3582(c)(2) provides that a sentencing court may, after considering the factors set forth in 18 U.S.C. § 3553(a) and the policy statements of the Sentencing Commission, reduce a defendant’s term of imprisonment if his sentence was based on a sentencing range subsequently lowered by the Sentencing Commission.
In 2007, the United States Sentencing Commission reduced by two levels the base offense level associated with each quantity of crack cocaine, and such change has been given retroactive effect. See U.S.S.G. § 2D1.1 (2007) (Amendment 706); U.S.S.G. § 1B1.10(c); United States v. Regalado, 518 F.3d 143, 150 (2d Cir.2008). In a subsequently-issued policy statement, the Sentencing Commission directed sentencing judges to “determine the amended guideline range that would have been applicable to the defendant if the amendments) ... had been in effect at the time the defendant was sentenced.” U.S.S.G. § lB1.10(b)(l). “[T]he court shall substitute only the amendments ... for the corresponding guideline provisions that were applied when the defendant was sentenced and shall leave all other guideline application decisions unaffected.” Id. Additionally, the Sentencing Commission provided *583that “the court shall not reduce the defendant’s terra of imprisonment ... to a term that is less than the minimum of the amended guideline range.” U.S.S.G. § lB1.10(b)(2)(A). We recently held the last provision to be a mandatory limitation on the district court’s authority to reduce a sentence. See United States v. Savoy, 567 F.3d 71, 74 (2d Cir.2009) (per curiam).
Here, we find no abuse of discretion in the district court’s imposition of a reduced sentence of imprisonment of 120 months. Having properly considered the Sentencing Commission’s policy statements and the § 3553(a) factors, including Appellant’s post-sentencing conduct, the district court correctly substituted the applicable amendment for the corresponding guideline provision — reducing Appellant’s base offense level by two. Although a base offense level of 27 and a criminal history category of III ordinarily would have resulted in a sentencing range of 87 to 108 months in prison, see U.S.S.G. Ch. 5, Pt. A (2003), the distinct court correctly found that the applicable range, due to the operation of the statutory mandatory minimum, was 120 months, see 21 U.S.C. § 841(b)(1)(A) (providing for 10-year minimum term of imprisonment); see also U.S.S.G. § 5G1.1 (“Where a statutorily required minimum sentence is greater than the maximum of the applicable guideline range, the statutorily required minimum sentence shall be the guideline sentence.”). Thus, the district court could not have imposed a reduced sentence lower than 120 months. . See U.S.S.G. § 1B1.10(b)(2)(A); Savoy, 567 F.3d at 74.
In light of the district court’s inability to impose a lesser sentence, Appellant’s remaining arguments regarding his resentencing are unavailing, as any remand would be futile. Additionally, Appellant’s claims with respect to his original plea and sentencing are foreclosed by the law of the case doctrine. See United States v. Quintieri, 306 F.3d 1217, 1229 (2d Cir.2002). Furthermore, to the extent that Appellant can be construed as arguing for a sentence reduction based on Amendment 709 to U.S.S.G. § 4A1.2, effective November 1, 2007, regarding the calculation of criminal history points, that amendment has not been given retroactive effect. See U.S.S.G. § lB1.10(c) (listing covered amendments).
Accordingly, there is no basis on which to challenge the order of the district court, and it is hereby AFFIRMED.
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*585SUMMARY ORDER
Plaintiff-Appellant Ganiyu A. Jaiyeola, pro se, appeals from a judgment of the United States District Court for the Northern District of New York (Kahn, J.), granting summary judgment in favor of Defendant-Appellee Carrier Corporation (“Carrier”) in Jaiyeola’s action brought pursuant to Title VII, 42 U.S.C. § 2000e et seq., and denying his motion for additional discovery pursuant to Rule 56(f) of the Federal Rules of Civil Procedure. We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.
I. Summary Judgment
We review an order granting summary judgment de novo, and ask whether the district court properly concluded that there were no genuine issues of material fact and that the moving party was entitled to judgment as a matter of law. See Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292, 300 (2d Cir.2003).
In order to make out a prima facie case of discrimination in violation of Title VII, a plaintiff must show that: (1) he is a member of a protected class; (2) he performed the job satisfactorily; (3) an adverse employment action took place; and (4) the action occurred under circumstances giving rise to an inference of discrimination. See Dawson v. Bumble & Bumble, 398 F.3d 211, 216 (2d Cir.2005); see also McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 & n. 13, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Once a plaintiff alleges a prima facie case of discrimination, the burden of production shifts to the employer to demonstrate a legitimate, nondiscriminatory reason for the adverse employment decision. See Shumway v. United Parcel Serv., Inc., 118 F.3d 60, 63 (2d Cir.1997); see also McDonnell Douglas, 411 U.S. at 802-04, 93 S.Ct. 1817. The burden then shifts back to the plaintiff to present evidence that the employer’s proffered reason is a pretext for an impermissible motivation. See McDonnell Douglas, 411 U.S. at 804-05, 93 S.Ct. 1817. “Thus, once the employer has proffered its nondiscriminatory reason, the employer will be entitled to summary judgment ... unless the plaintiff can point to evidence that reasonably supports a finding of prohibited discrimination.” James v. N.Y. Racing Ass’n, 233 F.3d 149, 154 (2d Cir.2000).
Here, the district court properly found that the Appellant failed to establish that his termination occurred under circumstances giving rise to an inference of discrimination. In this case, where the person who fired the Appellant also had hired the Appellant, see Schnabel v. Abramson, 232 F.3d 83, 91 (2d Cir.2000), where there was evidence of prior poor performance, and where it was clear that a decision to downsize had been made, the circumstances cannot be said to support a prima facie case of discrimination. Moreover, even if he had established a prima facie case, Jaiyeola failed to rebut Carrier’s legitimate, non-retaliatory reason for his termination — that same downsizing of his department, in which he was the weakest performer, leading ultimately to the elimination of the entire department. His claim that his supervisor, rather than he, was to blame for failings in his assigned projects gives rise to no inference of discrimination. See Lizardo v. Denny’s, Inc., 270 F.3d 94, 104 (2d Cir.2001) (finding that plaintiffs must do more than “cite to their mistreatment and ask the court to conclude that it must have been related to their race”). Furthermore, his supervisor’s alleged remarks that she did not know what he was saying in project meetings and that she did not hire people she did not understand are insufficient to create a triable issue of fact as to pretext. *586Jaiyeola produced no evidence to support his speculation that either statement was racially motivated. See Bickerstaff v. Vassar Coll., 196 F.3d 435, 452 (2d Cir.1999) (“Statements that are devoid of any specifics, but replete with conclusions, are insufficient to defeat a properly supported motion for summary judgment.”).
II. Rule 56(f)
This Court reviews a district court’s denial of a motion under Rule 56(f) for abuse of discretion, and will not reverse where a plaintiff has failed to show “how the facts sought are reasonably expected to create a genuine issue of material fact.” Paddington Partners v. Bouchard, 34 F.3d 1132, 1137-38 (2d Cir.1994). Here, Plaintiff-Appellant failed to make such a showing, nor did he even identify the facts that he sought. Furthermore, he had ample time — during which he retained counsel — to pursue the requested discovery. See Burlington Coat Factory Warehouse Corp. v. Esprit De Corp., 769 F.2d 919, 928 (2d Cir.1985).
We do not consider Appellant’s claims, raised for the first time on appeal, regarding the validity of an unsigned performance evaluation or his supervisor’s failure to ask him to lead team meetings. See Singleton v. Wulff, 428 U.S. 106, 120-21, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976) (“It is the general rule ... that a federal appellate court does not consider an issue not passed upon below.”).
We have considered all of Appellant’s remaining arguments on appeal and find them to be without merit. Accordingly, there is no basis on which to challenge the judgment of the district court, and it is hereby AFFIRMED.
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SUMMARY ORDER
Appellant Hillaire Woodard, pro se, appeals the district court’s order granting of summary judgment in favor of the New York City Health and Hospitals Corporation (“HHC”), granting HHC leave to amend its answer to add a counterclaim, and finding for HHC on its counterclaim. We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.
We review a district court’s order granting summary judgment de novo to determine whether the district court properly concluded that there was no genuine issue as to any material fact and that the moving party was entitled to judgment as a matter of law. Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292, 300 (2d Cir.2003). In determining whether there are genuine issues of material fact, we draw all permissible factual inferences in favor of the non-moving party. Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir.2003). However, “conclusory statements or mere allegations [are] not sufficient to defeat a summary judgment motion.” Davis v. New York, 316 F.3d 93, 100 (2d Cir.2002).
Woodard brought claims under the Uniformed Services Employment and Reemployment Rights Act (“USERRA”), 38 U.S.C. § 4301 et seq. With respect to her claim that HHC discriminated against her on the basis of her military status or service, in violation of 38 U.S.C. § 4311, the district court correctly determined that although there is a genuine issue of material fact as to whether HHC discriminated against her by initially failing to provide her with an 8% managerial pay increase, this claim is in any event moot because HHC initially gave her a 4% increase and subsequently granted her the remaining 4% increase retroactive to the initial date of her eligibility for the 8% increase.
With respect to her claim that HHC failed to reemploy her in a position of *588similar “seniority, status, and pay, the duties of which [she was] qualified to perform” upon her return from active military duty, in violation of 38 U.S.C. § 4313(a)(2)(A), the district court correctly determined that the evidence established that Woodard was reemployed at a managerial title and salary equivalent to those she possessed before she left on active military duty, and that her duties remained managerial. Moreover, the district court correctly found that HHC permissibly reemployed Woodard in a vacant position of similar status based on its staffing needs, consistent with USERRA regulations permitting an employer “to assess what would have happened to such factors as the employee’s opportunities for advancement, working conditions, job location, shift assignment, rank, responsibility, and geographical location,” if she had not left on active military duty, and noting that the “reemployment position may involve transfer to another shift or location, more or less strenuous working conditions, or changed opportunities for advancement.” 20 C.F.R. § 1002.194.
In her appellate brief and reply brief, Woodard argues that HHC committed “repeated USERRA violations” and engaged in behavior constituting “harassment.” However, her claims before the district court were limited to the two discussed above, and this Court generally will not consider any new claims raised for the first time on appeal. See Singleton v. Wulff, 428 U.S. 106, 120-21, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976); Allianz Ins. Co. v. Lerner, 416 F.3d 109, 114 (2d Cir.2005).
Woodard also sought an order establishing how much she owed HHC pursuant to a signed Military Pay Reimbursement Agreement (the “Agreement”). The district court propei’ly permitted HHC to amend its answer to file a counterclaim against Woodard, seeking monies owed under the Agreement. In November 2001, in addition to its standard military leave benefits program, HHC initiated an extended military leave benefits program. Woodard signed an Agreement indicating her participation in this program, under which HHC paid Woodard her entire HHC salary and permitted her to accrue benefits and retain her health insurance while she was on active military duty, during which time she also received her full military pay. In consideration for these benefits, Woodard agreed that she would remit to HHC the lesser of her two salaries. Upon her return to HHC in March 2004 and over the course of the next several months, Woodard disputed the amount she owed to HHC, and HHC began to deduct a percentage of her wages toward the repayment amount, pursuant to the Agreement. Woodard’s employment at HHC eventually ended, and both parties agree that she owes some amount of money to HHC, although the precise amount is disputed.
The district court correctly determined that the Agreement unambiguously requires Woodard to repay the entirety of the lesser of her two salaries — in her case, her military salary. See Omni Quartz, Ltd. v. CVS Corp., 287 F.3d 61, 64 (2d Cir.2002) (“The proper interpretation of an unambiguous contract is a question of law for the court, and a dispute on such an issue may properly be resolved by summary judgment.”). Despite Woodard’s arguments to the contrary, there is no basis for her assertion that she should only be required to repay HHC a portion of her military salary, which she argues should be calculated on an hourly basis, based on the assumption that she worked twenty-four hours a day and seven days a week for the military, while she only worked seven hours a day and five days a week for HHC.
*589There appears to be some confusion as to the amount Woodard is required to pay HHC. The district court found that Woodard owed HHC a total amount of $140,558.07. It arrived at this figure by first determining that Woodard was required to repay HHC $144,141.98 and then reducing that amount by the $3,583.91 that Woodard had already repaid through payroll deductions. The district court also stated, however, that Woodard was entitled to rely on HHC’s initial, lower calculation. This initial calculation was $137,052.97, not $144,141.98.
In addition, Woodard argues on appeal that N.Y. Military Law § 242(5-a), which went into effect after the district court’s decision in her case, may affect the repayment amount she owes to HHC. HHC argues that this law does not apply to it because it is a public benefit corporation that is legally distinct from the City of New York.
Under the circumstances, we deem it appropriate to remand to the district court. We ask the district court to consider in the first instance whether the newly enacted law applies to HHC and, if the law does apply, to determine what effect it has on the amount Woodard owes to HHC. Given that we remand, we believe that Woodard, as a pro se plaintiff, should also be permitted to challenge the district court’s calculation even though she did not previously object to this amount or file a motion for reconsideration.
For the foregoing reasons, the judgment of the district court is hereby AFFIRMED in part and REMANDED in part.
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SUMMARY ORDER
Appellant Paulina DeMarco (“DeMarco”) appeals from a final judgment entered by the United States District Court for the Eastern District of New York (Gleeson, J.) on February 3, 2009. We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.
We review evidentiary rulings by the district court for abuse of discretion. Bra*594dy v. Wal-Mart Stores, Inc., 531 F.3d 127, 136 (2d Cir.2008). In the midst of trial, the district court must make on-the-spot decisions, carefully weighing probative value against undue prejudice for each proffered piece of evidence. Sprint/United Management Co. v. Mendelsohn, 552 U.S. 379, 128 S.Ct. 1140, 1144-45, 170 L.Ed.2d 1 (2008). Therefore, when we review those decisions, we afford the district court substantial deference. Meloff v. New York Life Ins. Co., 240 F.3d 138, 148 (2d Cir.2001).
The District Court did not abuse its discretion when it precluded DeMarco from testifying as to her co-workers’ statements to DeMarco concerning alleged encounters by the co-workers with Defendant Kevin Gersh (“Gersh”). None of these employees testified at trial, and DeMarco did not witness any of the alleged events herself. Under Federal Rule of Evidence 403, evidence may be excluded by the court if the probative value of the evidence proffered is substantially outweighed by the danger of unfair prejudice. Fed. R. Evid. 403. Allowing DeMarco to testify to hearsay statements that detail events she herself did not witness presents a significant risk of undue prejudice. DeMarco is correct that harassment experienced by other employees is relevant to hostile work environment claims, but the evidence must be firsthand accounts of the events in question. See Howley v. Town of Stratford, 217 F.3d 141, 155 (2d Cir.2000); see also Perry v. Ethan Allen, Inc., 115 F.3d 143, 150-51 (2d Cir.1997). DeMarco was certainly entitled to put witnesses on the stand and elicit testimony of their experiences with harassment to support her claim. But she was not entitled to testify as to what she heard from these employees in order to prove a hostile work environment, as the district court properly concluded.
Nor did the District Court abuse its discretion in its decision concerning a variety of other evidence that DeMarco sought to introduce. Given the purposes for which DeMarco proffered the evidence, the District Court could correctly determine that its probative value would be substantially outweighed by its prejudicial effect.
The District Court also did not abuse its discretion when it allowed limited questioning about a separate lawsuit brought by DeMarco. Because both suits alleged continuing mental anguish and emotional harm, and the events alleged in the two suits occurred close in time, inquiry into the existence of the separate suit was relevant to the issue of damages. The district court limited the inquiry to “the fact of the lawsuit” and the “emotional and physical injuries” DeMarco alleged she suffered from the acts set forth in the second suit. The court did not allow the lawsuit to be used to demonstrate that DeMarco was litigious, a line of argument forbidden by Outley v. City of New York, 837 F.2d 587, 592 (2d Cir.1988).
We have reviewed the remaining arguments and find them to be without merit.
For the foregoing reasons, the judgment of the district court is AFFIRMED.
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SUMMARY ORDER
Appellants Daniel Schneider and Jared Hatch appeal from a denial of a summary judgment motion entered by the United States District Court for the District of Vermont (Sessions III, J.) on February 12, 2009. We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.
*596Typically, this court does not have jurisdiction to review a denial of summary judgment. Escalera v. Lunn, 361 F.3d 737, 742 (2d Cir.2004). Qualified immunity cases are the exception to the rule. Id. at 743. When a district court denies a summary judgment motion that is based on qualified immunity, this court may review the judgment “to the extent that the district court has denied the motion as a matter of law.” O’Bert ex rel. Estate of O'Bert v. Vargo, 331 F.3d 29, 38 (2d Cir.2003). A defendant may immediately appeal the denial if he adopts the plaintiffs version of the facts and argues that the plaintiffs version of the facts affords the defendant qualified immunity as a matter of law. Id. This court “may not review whether a dispute of fact identified by the district court is genuine.” Droz v. McCadden, 580 F.3d 106, 108 (2d Cir.2009) (internal quotation marks and citation omitted). Our review of the denial of summary judgment is de novo, and we accept all of the plaintiffs facts as true. Savino v. City of New York, 331 F.3d 63, 72 (2d Cir.2003).
Qualified immunity exists to protect government officials from liability for civil damages that arise from the reasonable execution of their official duties. Pearson v. Callahan, — U.S. —, 129 S.Ct. 808, 815, 172 L.Ed.2d 565 (2009). A qualified immunity defense is available when “(a) the defendant’s action did not violate clearly established law, or (b) it was objectively reasonable for the defendant to believe that his action did not violate such law.” Tierney v. Davidson, 133 F.3d 189,196 (2d Cir.1998). “Clearly established” means more than a generalized protection found within the constitution — the law in question must be particular enough to give the government officials “fair warning” that their behavior is over the line. Hope v. Pelzer, 536 U.S. 730, 740-41, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002).
Excessive force is evaluated through Fourth Amendment doctrine, and we examine whether the force was excessive under an objective standard of reasonableness. Stephenson v. Doe, 332 F.3d 68, 77 (2d Cir.2003). Even if the force is objectively unreasonable, an officer may still be eligible for qualified immunity if it was objectively reasonable for the officer to believe that her action did not violate clearly established law. Salim v. Proulx, 93 F.3d 86, 89 (2d Cir.1996). Qualified immunity protects officers “from the sometimes hazy border between excessive and acceptable force.” Brosseau v. Haugen, 543 U.S. 194, 198, 125 S.Ct. 596, 160 L.Ed.2d 583 (2004) (internal quotation marks and citation omitted).
When we examine officers’ use of force, we must make “allowance[s] for the fact that the police officers are often forced to make split-second judgments — in circumstances that are tense, uncertain, and rapidly evolving — about the amount of force that is necessary in a particular situation.” Graham v. Connor, 490 U.S. 386, 396-97, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). We assess those circumstances through careful examination of the facts of the particular arrest, “including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” Id. at 396, 109 S.Ct. 1865.
In this case, Plaintiff Timothy Keene (“Keene”) concedes that the officers had probable cause to arrest him and that he resisted that arrest. He concedes that he refused multiple requests by the officer to place his hands behind his back. He concedes that he was repeatedly warned before Officer Schneider pepper sprayed him. He concedes that, once on the ground, he held his arms underneath him *597to prevent the officers from putting handcuffs on him. He states that he only released his arms when he heard his daughter tell him to.
The law is clearly established that officers may use reasonable force to effectuate an arrest. See Muehler v. Mena, 544 U.S. 93, 98-99, 125 S.Ct. 1465, 161 L.Ed.2d 299 (2005). Under the circumstances, we find that the officers’ use of force, which resulted in minimal injuries and stopped immediately after Keene was handcuffed, did not violate clearly established law. Therefore, the officers were entitled to the qualified immunity defense, and the district court’s denial of them motion for summary judgment was in error.
For the foregoing reasons, the decision of the district court is REVERSED and it is hereby ORDERED that judgment be entered in the district court in favor of the defendants on all federal claims.
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OPINION
PER CURIAM.
Steven Paul Fleming, proceeding pro se, appeals from the District Court’s dismissal of his amended complaint. For the reasons that follow, we will dismiss the appeal pursuant to 28 U.S.C. § 1915(e)(2)(B).
Fleming filed a complaint in the United States District Court for the Middle District of Pennsylvania on April 14, 2009. The District Court construed it as seeking relief under 42 U.S.C. § 1983 and issued an order explaining the defects in Fleming’s complaint, setting out the information required to state a claim under § 1983, and ordering Fleming to amend his complaint to comply with those requirements. Fleming filed an amended complaint, the substance of which is described in great detail in the Magistrate Judge’s Report & Recommendation. The amended complaint named Lackawanna County Courthouse and Lackawanna County as the defendants. As the Magistrate Judge explained, Fleming failed to specify any conduct, wrongful or otherwise, of any properly named defendant. A fair reading of Fleming’s complaint does not indicate what specific wrongs he seeks to remedy or who committed them. Additionally, the Magistrate Judge recommended that Fleming not be permitted to *599amend his complaint for a second time, as it appeared that any such amendment would be futile. By order entered June 9, 2009, the District Court adopted the Magistrate Judge’s Report & Recommendation and dismissed the action pursuant to 28 U.S.C. § 1915(e).
We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. Because Appellant has been granted informa pauperis status pursuant to 28 U.S.C. § 1915, we review this appeal for possible dismissal pursuant to 28 U.S.C. § 1915(e)(2)(B). An appeal must be dismissed under § 1915(e)(2)(B) if it has no arguable basis in fact or law. See Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989). For all of the reasons given by the Magistrate Judge, we agree that Fleming failed to state a claim upon which relief could be granted and, accordingly, conclude that this appeal must be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B).
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OPINION
PER CURIAM.
Amir Hakim McCain appeals from the District Court’s order dismissing his complaint. For the following reasons, we will dismiss McCain’s appeal pursuant to 28 U.S.C. § 1915(e)(2)(B)(i).
*604I.
On May 26, 2009, McCain, acting as “Administrator of the Estate of Deceased Juanita Felder and a/k/a John McCain, An-Nisa McCain, Individually in his own Right,” filed a complaint in the United States District Court for the Eastern District of Pennsylvania against Episcopal Hospital and the Hospital of the University of Pennsylvania. McCain’s complaint alleged that the hospitals, acting under color of state law, violated his constitutional rights by refusing to turn over biological, toxicological, and DNA tests that McCain believes would justify further criminal or civil actions against the hospitals in connection with the deaths of Juanita Felder and McCain’s unborn son.
On June 5, 2009, McCain moved to proceed with his claims in forma pauperis. On July 1, 2009, the District Court granted in forma pauperis status to appellant, and dismissed his complaint under 28 U.S.C. § 1915(e)(2).
II.
We have jurisdiction over this appeal under 28 U.S.C. § 1291. Because McCain is proceeding in forma pauperis, we must dismiss the appeal under 28 U.S.C. § 1915(e)(2)(B) if it lacks an arguable basis in fact or law. Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989).
This is McCain’s second attempt, as a pro se litigant, to bring a § 1983 action on behalf on Juanita Felder. See McCain v. Abraham, 337 Fed.Appx. 141 (3d Cir.2009). We reiterate that “a pro se litigant who is not an attorney may not represent someone else in federal court.” Id. at 142; see also Osei-Afriyie v. Med. Coll. of Penn., 937 F.2d 876, 882 (3d Cir.1991) (holding that a non-attorney parent could not proceed pro se on behalf of his or her children in federal court). Furthermore, as we explained to McCain in dismissing his previous appeal, § 1983 “does not provide a cause of action on behalf of a deceased based upon alleged violation of the deceased’s civil rights which occurred after his death.” McCain, 337 Fed.Appx. at 142 (quoting Guyton v. Phillips, 606 F.2d 248, 250 (9th Cir.1979)). For these reasons, McCain lacks standing to litigate claims on behalf of Felder or her estate.
To the extent that McCain also seeks redress for alleged violations of his own civil rights, McCain’s claims are without merit. To state a claim under 42 U.S.C. § 1983, McCain must show that the Episcopal Hospital and the Hospital of the University of Pennsylvania (1) violated his federal or Constitutional rights, and (2) that they did so while acting under color of state law. Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 155-56, 98 S.Ct. 1729, 56 L.Ed.2d 185 (1978); Groman v. Twp. of Manalapan, 47 F.3d 628, 638 (3d Cir.1995). McCain has failed to articulate how the hospitals’ alleged actions-in essence, withholding information that could potentially form the basis of a hypothetical future criminal or civil action — violated a right that either the Constitution or federal law protects.
Furthermore, even assuming that withholding information under these circumstances somehow violated a cognizable federal right, McCain makes no allegations to support his claim that the hospitals were acting under color of state law. “[TJhere is no liability under § 1983 for those not acting under color of law.” Groman, 47 F.3d at 638. Although McCain asserts that the hospitals were acting under color of state law, there is no allegation that the Episcopal Hospital or the Hospital of the University of Pennsylvania are state actors, that they have “acted together with” or have “obtained significant aid from *605state officials,” or that their conduct is “otherwise chargeable to the State.” Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 923, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982); Jordan v. Fox, Rothschild, O’Brien & Frankel, 20 F.3d 1250, 1264-65 (3d Cir.1994). Other than McCain’s bare assertion, there is nothing in the complaint to suggest that either defendant was acting under color of state law. Ashcroft v. Iqbal, — U.S. —, 129 S.Ct. 1937, 1951, 173 L.Ed.2d 868 (2009) (holding that conclusory allegations are not entitled to the assumption of truth).
III.
After conducting an independent review, we conclude that McCain’s appeal is without arguable merit. We will dismiss the appeal pursuant to 28 U.S.C. § 1915(e)(2)(B)(i).
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OPINION
PER CURIAM.
Janet Francis, proceeding pro se, appeals from the decisions of the District Court dismissing her complaint and denying her motion for reconsideration. Because the appeal does not present a substantial question, we will summarily affirm. See 3d Cir. LAR 27.4; 3d Cir. IOP 10.6. Also before the Court is Francis’ petition for writ of mandamus, which we will deny for the reasons discussed below.
I
The complex factual and procedural background of this case is exhaustively recounted in the District Court’s opinion of March 19, 2009, 2009 WL 777396. (Doc. No. 143 at 2-14). Briefly, Francis is a former employee of the New Jersey Army National Guard. In 2005, she filed a complaint in the District Court, in which she set forth as claims for relief, without further elaboration:
Denied ... the right to Freedom of Information Act (FOIA), Reprisal, Harassment, discrimination, not given an equal employment opportunity, retaliation, wasn’t given a hearing for the adverse action against me, Breach of contract, defamation of character, denied promotion, didn’t complete the procedures outlined in NGR 600-22/ANGI 36-3, didn’t meet time frame to investigate complaint, wasn’t given military duties, tampering with federal investigation of complaint, unauthorized officer filed documents.
(Doc. No. 2 at 1).
The District Court dismissed the complaint under the doctrine of intramilitary immunity. Francis appealed, and we affirmed in part and vacated in part, holding that the intramilitary immunity doctrine did not bar her claims for injunctive relief. (C.A. No. 06-4246, opinion entered on September 7, 2007, 247 Fed.Appx. 387). We noted, however, that the District Court might consider on remand whether Francis’ complaint satisfied the requirements of *610Federal Rule of Civil Procedure 8. Id. at 8-4.
On remand, the District Court granted the Defendants’ motion under Federal Rule of Civil Procedure 12(e) for a more definite statement. Francis, incorrectly interpreting our opinion to mean that her complaint sufficiently stated a claim for relief, refused to comply with the District Court order. Over the next five months, the District Court, sua sponte, attempted to clarify the significance of our opinion and afforded Francis three additional opportunities to file a second amended complaint responsive to its concerns. Each time, Francis expressly refused, citing our opinion in C.A. No. 06-4246. In addition, Francis filed a petition for writ of mandamus while the District Court action was pending.
In March 2009, the District Court dismissed Francis’ complaint. She filed a motion for reconsideration, which the District Court also denied, followed by this appeal. We have jurisdiction over the appeal pursuant to 28 U.S.C. § 1291. We have authority to issue writs of mandamus under the All Writs Act. See 28 U.S.C. § 1651(a); In re Kensington Int’l Ltd., 358 F.3d 211, 219 (3d Cir.2003).
II
In dismissing Francis’ complaint, the District Court reasoned that she failed to comply with multiple orders to file a second amended complaint responsive to the Rule 12(e) order. We review a dismissal for failure to comply for abuse of discretion. See Emerson v. Thiel Coll., 296 F.3d 184, 190 (3d Cir.2002). The District Court’s discretion is guided by the factors listed in Poulis v. State Farm Fire & Cas. Co., 747 F.2d 863, 868 (3d Cir.1984). These include: (1) the extent of the party’s personal responsibility; (2) the prejudice to the adversary caused by the party’s failure to comply; (3) a history of dilatoriness; (4) whether the party’s conduct is willful or in bad faith; (5) the effectiveness of available sanctions other than dismissal; and (6) the meritoriousness of the claim or defense. See id.
At the outset, we note that Francis’ interpretation of our opinion in her earlier appeal — i.e., that the District Court’s incorrect decision concerning her injunctive relief claims as they relate to the doctrine of intramilitary immunity, read in light of our suggestion that the District Court review her complaint for compliance with Rule 8, somehow suggests the overall adequacy of her complaint — is plainly incorrect. Proceeding from a correct understanding of our prior opinion, the District Court conducted a detailed analysis of the Poulis factors as they apply to Francis’ case. For all the reasons given by the District Court in its thorough and well-reasoned opinion, we agree that dismissal was appropriate. See District Court Op., 15-24. Francis’ repeated refusal to explain at all the basis of her claims left the District Court with little choice but dismissal. Certainly, we see no abuse of discretion in the District Court’s decision. See Emerson, 296 F.3d at 191.
Ill
We turn next to the denial of Francis’ motion for reconsideration. To prevail on a motion for reconsideration, a litigant must demonstrate: “(1) an intervening change in the controlling law; (2) the availability of new evidence ...; or (3) the need to correct a clear error of law or fact or to prevent manifest injustice.” Max’s Seafood Cafe ex rel. Lou-Ann, Inc. v. Quinteros, 176 F.3d 669, 677 (3d Cir.1999). We review the denial of a motion to reconsider for abuse of discretion. See Caver v. Trenton, 420 F.3d 243, 258 (3d Cir.2005). Here, in denying reconsideration, the Dis*611trict Court correctly explained that neither the filing of Francis’ mandamus petition nor her earlier interlocutory appeal precluded continuing with the case. Thus, the District Court did not abuse its discretion in denying Francis’ motion for reconsideration.
IV
Francis also filed a petition for writ of mandamus, asking this Court to compel her reinstatement and to force Judge Simandle and Magistrate Judge Donio to recuse themselves. Before we could rule on the mandamus petition, however, we obtained jurisdiction over her appeal. Because it inures to her benefit, we might well review her arguments under our appellate jurisdiction, rather than our less forgiving mandamus authority.1 See, e.g., In re Richards, 213 F.3d 773, 779 (3d Cir.2000) (holding that mandamus will not lie when a direct appeal is available); United States v. RMI Co., 599 F.2d 1183, 1187 (3d Cir.1979) (“where, as here, the order which is the subject matter of the petition is, under the governing case law, reviewable as ... final, there are no finality considerations militating against treating a petition for mandamus as the equivalent of a notice of appeal”). Under any standard, however, her arguments fail.
First, we may pass quickly by her request that we compel her reinstatement. We will not, of course, countenance her failure to submit an acceptable complaint to the District Court by giving her the ultimate relief she sought. Nor has Francis demonstrated that Judge Simandle and Magistrate Judge Donio should have recused. Francis’ unhappiness with the judges’ rulings is insufficient to require recusal, see Liteky v. United States, 510 U.S. 540, 555, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994) (“judicial rulings alone almost never constitute a valid basis for a bias or partiality motion”), and her attempt to tie unsubstantiated improper acts by non-judicial actors to the District Court is unpersuasive.
Accordingly, we will affirm the decision of the District Court and deny Francis’ petition for mandamus.
. Mandamus is an "extraordinary remedy” that we have discretion to award only when a petitioner demonstrates, among other things, a "clear and indisputable” right to relief. In re Pressman-Gutman Co., 459 F.3d 383, 398-99 (3d Cir.2006).
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OPINION
PER CURIAM.
On November 19, 2008, David B. Cassell commenced this action in the United States District Court for the Eastern District of Pennsylvania by filing a pro se complaint, followed soon thereafter by an amended complaint, in which he asserted general claims that the named defendants — the City of Philadelphia, the Social Security Administration (“SSA”), Mercy Catholic Hospital, Hahnemann Hospital, and the Homeless Advocacy Project — had violated his rights. Cassell claimed, for example, that the Philadelphia police had illegally arrested, beaten, and imprisoned him without due process of law, but, as the District Court observed, Cassell provided “no other facts” to support this claim.
On February 10, 2009, the District Court ordered Cassell to file a second amended complaint setting forth basic supporting facts, including dates, the circumstances of the alleged incidents, and other readily available information. With respect to the SSA, which Cassell alleged had “misdiagnos[ed][him] as mentally retarded” and discontinued his benefits, the District Court dismissed the informa pauperis complaint under 28 U.S.C. § 1915(e)(2)(B)(ii) because Cassell had failed to exhaust administrative remedies.
Cassell filed letter responses on April 6 and 15, 2009, which were docketed as an amended complaint (technically the second amended complaint) and a supplement thereto. Hahnemann Hospital (identifying itself as Tenet HealthSystem Hahnemann, *613LLC) moved to dismiss, arguing that the District Court lacked subject-matter jurisdiction and that Cassell failed to state a claim upon which relief can be granted.
On May 7, 2009, the District Court dismissed Cassell’s claims against the City of Philadelphia for failure to state a claim, holding that the two-year statute of limitations had expired for claims under 42 U.S.C. § 1983 because Cassell’s alleged incidents with the Philadelphia police had occurred between July 15, 2003, and January 1, 2006, and Cassell filed his original complaint in November 2008. Noting that Cassell’s remaining claims were brought against private entities, and that any claims he might have against them must arise under state law, the District Court dismissed those claims for lack of federal-question jurisdiction, and also concluded that it lacked diversity jurisdiction.
Cassell timely filed this appeal. We have jurisdiction under 28 U.S.C. § 1291. After a careful review of the record, we will summarily affirm in accordance with Third Circuit Internal Operating Procedure Chapter 10.6.1
As the District Court explained, Cassell’s § 1983 claims against the Philadelphia police are governed by Pennsylvania’s two-year statute of limitations for personal injury actions. See Sameric Corp. v. City of Phila., 142 F.3d 582, 599 (3d Cir.1998). “A section 1983 cause of action accrues when the plaintiff knew or should have known of the injury upon which its action is based.” Id.; see also Wallace v. Kato, 549 U.S. 384, 388, 127 S.Ct. 1091, 166 L.Ed.2d 973 (2007) (explaining that a cause of action generally accrues when “the plaintiff can file suit and obtain relief’) (quotation marks omitted). Here, the latest of Cassell’s claims is alleged to have occurred on January 1, 2006, when the police allegedly arrested Cassell, beat him, and took him to a hospital. Cassell filed suit well more than two years later, in November 2008. Cassell raises no allegation that would allow the limitations period to begin within two years of the date on which he filed suit. Consequently, the District Court properly dismissed his claims against the City of Philadelphia.2
The District Court properly dismissed the remaining claims for lack of jurisdiction. A § 1983 action may be maintained only against a defendant who acts under color of state law. West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988). Private actors, such as the non-governmental defendants named here, can be said to act under color of state law only if their conduct is fairly attributable to the state. See Rendell-Baker v. Kohn, 457 U.S. 830, 838, 102 S.Ct. 2764, 73 L.Ed.2d 418 (1982). Cassell makes no allegation that would even arguably support a claim that the private defendants acted under color of state law in their treatment of Cassell at hospitals and homeless shelters. Because his claims, if any, against these defendants arise under state law, the District Court properly held that it lacked federal-question jurisdiction *614under 28 U.S.C. § 1331. In addition, Cassell, a Pennsylvania resident, has not established complete diversity of citizenship for purposes of jurisdiction under 28 U.S.C. § 1332. As a result, the claims against the private-party defendants were properly dismissed.
In sum, because this appeal presents “no substantial question,” 3d Cir. IOP Ch. 10.6, we will summarily affirm the District Court’s judgment. The motion by appellee Tenet HealthSystem Hahnemann, LLC, for summary action is granted.
. Our review is plenary review over a dismissal for failure to comply with a statute of limitations, In re Merck & Co., Inc. Sec. Derivative & ERISA Litig., 543 F.3d 150, 160 (3d Cir.2008), as well as over the question of subject-matter jurisdiction, Lightfoot v. United States, 564 F.3d 625, 626 (3d Cir.2009).
. With regard to the only other governmental defendant, the SSA, there appears to no connection between Cassell's claim against the SSA and his alleged civil rights claims against the other defendants. As the District Court observed, insofar as Cassell challenges an SSA decision to discontinue benefits, he has not exhausted administrative remedies, and thus his claim was properly dismissed. See 42 U.S.C. § 405(g).
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OPINION
PER CURIAM.
This is an appeal from the District Court’s dismissal of Miguel Nieves Garcia’s petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. We will summarily affirm. See I.O.P. 10.6.
In 1995 the United Stated District Court for the Eastern District of Wisconsin sentenced Garcia to an aggregate term of imprisonment of 360 months for various drug charges. The Court of Appeals for the Seventh Circuit affirmed his conviction. United States v. Garcia, 89 F.3d 362 (7th Cir.1996). Garcia then filed a motion to vacate, set aside, or correct sentence, pursuant to 28 U.S.C. § 2255. The trial court denied the motion and the Seventh Circuit denied his request for a certificate of appealability.
On February 18, 2009, Garcia filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. In the petition, Garcia challenged his classification as a career offender, arguing that a 1972 conviction should not have counted as a predicate offense. The District Court denied his petition and Garcia filed a timely notice of appeal to this Court.
We have jurisdiction over this appeal pursuant to 28 U.S.C. §§ 1291 and 2253(a). We exercise plenary review over the District Court’s legal conclusions and apply a clearly erroneous standard to its factual findings. See Cradle v. United States ex rel. Miner, 290 F.3d 536, 538 (3d Cir.2002). Upon review, we agree with the District Court’s dismissal.
A § 2255 motion is the presumptive means by which a federal prisoner can challenge his conviction or sentence. See Davis v. United States, 417 U.S. 333, 343, 94 S.Ct. 2298, 41 L.Ed.2d 109 (1974). A federal prisoner may proceed under § 2241 only if the remedy provided by § 2255 is inadequate or ineffective to test the legality of his detention. See 28 U.S.C. § 2255; In re Dorsainvil, 119 F.3d 245, 249-51 (3d Cir.1997). “A § 2255 motion is inadequate or ineffective only where the petitioner demonstrates that some limitation of scope or procedure would prevent a § 2255 proceeding from affording him a full hearing and adjudication of his wrongful detention claim.” Cradle, 290 F.3d at 538.
Here, as the District Court held, Garcia has not established that a § 2255 motion is inadequate or ineffective to test the legality of his detention. Garcia raised the career offender claim on direct appeal. See Garcia, 89 F.3d at 366. Further, he apparently raised the claim in his § 2255 motion but he alleges that the Wisconsin District Court “unreasonably held his § 2255 motion to the strict compliance with its procedural rules.” (Petition at 12.) However, “[i]t is the inefficacy of the remedy, not the personal inability to use it, that is determinative.” Cradle, 290 F.3d at 539. Neither the Seventh Circuit’s rejection of that claim on direct appeal nor the District Court’s dismissal of the claim for procedural violations renders § 2255 inadequate. Id.
Therefore, the District Court properly determined that it lacked jurisdiction un*618der § 2241 to hear Garcia’s claim. Further, the District Court also correctly-construed his petition as a second or successive § 2255 motion and held that it also lacked jurisdiction over such a motion. We agree that the interests of justice did not require the District Court to transfer the petition to the Seventh Circuit. See 28 U.S.C. § 1631.
For the foregoing reasons, we will summarily affirm the District Court’s order.
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OPINION
PER CURIAM.
Appellant Robert S. Jackson appeals a March 9, 2009, 2009 WL 602984, order dismissing his complaint for failure to prosecute pursuant to Fed.R.Civ.P. 41(b) and a June 24, 2009, order denying his motion to reopen the proceedings. We conclude that the appeal does not present a substantial question and will summarily affirm the District Court’s orders. See 3d Cir. L.A.R. 27.4; I.O.P. 10.6.
I.
Because we write solely for the benefit of the parties, we will limit our discussion to those facts relevant to our decision.
Jackson claims to be the victim of an allegedly “fraudulent mortgage scheme” by Countrywide Home Loans, Inc. (“Countrywide”). Apparently, Jackson, Countrywide, and others have been engaged in state and federal litigation for years, including bankruptcy proceedings in the United States Bankruptcy Court for the Western District of Pennsylvania. See In re: Robert S. Jackson, Bankruptcy No. 04-35953 (Bankr.W.D.Pa.). Among other things, in those proceedings, Jackson sought to have the Bankruptcy Court vacate a state court property foreclosure that Countrywide had obtained against him. The Bankruptcy Court denied the claim for lack of jurisdiction, directed Jackson to pursue relief in state court, and ultimately dismissed the matter on September 25, 2006. Jackson did not file an appeal from the Bankruptcy Court’s September 25, 2006, dismissal.
Nearly one year later, Jackson initiated this pro se action in United States District Court for the Western District of Pennsylvania by filing a pleading entitled “Motion for Relief from Judgment.” In it, Jackson claims that the Bankruptcy Court proceedings were fraudulent and inconsistent with due process and that the Bankruptcy Court’s judgment should be set aside as “void” under Fed.R.Civ.P. 60(b).
The District Court converted Jackson’s Rule 60(b) motion into a complaint. Three groups of defendants separately filed motions to dismiss. Despite two extensions, Jackson failed to respond to any of the motions. On October 10, 2008, the District Court granted the three motions to dismiss and scheduled a status conference. Jackson failed to appear at the conference and did not contact the District Court to explain his absence. Accordingly, on March 9, 2009, the District Court issued a sua sponte order pursuant to Fed.R.Civ.P. *62341(b). The District Court considered Jackson’s case under Poulis v. State Farm Fire & Cas. Co., 747 F.2d 863, 868 (3d Cir.1984), and concluded that the case should be dismissed for failure to prosecute. The District Court’s order expressly permitted Jackson thirty days in which to seek to reopen the matter. Jackson did not do so within the allotted time.
More than three months after the District Court’s order, Jackson moved to reopen his case, claiming that he had been unable to timely file a motion to reopen due to the property foreclosure and other personal circumstances. He also filed a notice reflecting that his mailing address had changed. The District Court denied the motion to reopen as untimely, noting that it was Jackson’s first attempt to communicate with the District Court in more than one year.
Jackson then filed a pro se notice of appeal.
II.
Jackson seeks review of the District Court’s June 24, 2009, order denying his motion to reopen, and the District Court’s March 9, 2009, order dismissing his case for failure to prosecute pursuant to Fed.R.Civ.P. 41(b).1 We have jurisdiction pursuant to 28 U.S.C. § 1291. We review the District Court’s decisions for abuse of discretion. See United States v. Coward, 296 F.3d 176, 180 (3d Cir.2002) (motion to reopen); Emerson v. Thiel College, 296 F.3d 184, 190 (3d Cir.2002) (dismissal for failure to prosecute). We may summarily affirm if this appeal presents no substantial question. See 3d Cir. L.A.R. 27.4; I.O.P. 10.6.
To determine whether the District Court properly exercised its discretion when it dismissed Jackson’s complaint, we must consider the manner in which the District Court balanced the following six considerations: (1) Jackson’s personal responsibility; (2) prejudice to his adversaries; (3) any history of dilatoriness; (4) whether the Jackson’s conduct was in bad faith; (5) the effectiveness of alternative sanctions; and (6) the merit of his claim. See Poulis, 747 F.2d at 868. We must determine both whether the District Court properly balanced these factors and whether the record supports the District Court’s findings. See Livera v. First Nat. State Bank of New Jersey, 879 F.2d 1186, 1194 (3d Cir.1989).
Here, the District Court concluded that the Poulis factors weigh in favor of dismissal of the complaint. Specifically, the District Court determined that: (1) as a pro se plaintiff, Jackson alone was personally responsible for his failure to prosecute the case; (2) Jackson caused prejudice to his adversaries, specifically by causing the defendants to appear a status conference that he failed to attend, and generally by causing them to defend against a claim “brought by an unresponsive, unreachable party”; (3) Jackson had a history of dilatoriness, specifically shown by his failure to respond to the three motions to dismiss *624after being granted three extensions of time to permit him to do so; (4) the District Court was unable to conclude that Jackson was acting in bad faith; and (5) no other sanction would be effective, because financial sanctions would be futile (Jackson was proceeding in forma, pauperis)2 and because Jackson had been unreachable since June of the previous year.
While we have recognized that dismissal is an extreme sanction reserved only for appropriate cases, see Poulis, 747 F.2d at 867-68, in this case, the District Court carefully weighed five of the six the Poulis factors, and the record supports each of its conclusions. We agree that four out of the first five Poulis factors support dismissal, and because the District Court found that the issue of bad faith was a neutral factor and does not advance the analysis, the balance of the Poulis factors supports dismissal.
In this case, we are given brief pause by the fact that the dismissal order did not expressly address the final Poulis factor: the merits of Jackson’s claim.3 We have generally indicated that each of the Poulis factors should be considered. See Ware v. Rodale Press, Inc., 322 F.3d 218, 221-22 (3d Cir.2003). However, we have also recognized that Poulis does not set forth a “magic formula,” see Briscoe v. Klaus, 538 F.3d 252, 263 (3d Cir.2008), and that, under sufficiently extreme circumstances, it becomes unnecessary to expressly consider the Poulis factors at all. See Spain v. Gallegos, 26 F.3d 439, 455 (3d Cir.1994). Such circumstances arise in cases where a litigant wilfully refuses to prosecute his case or effectively makes it impossible to proceed, leaving the District Court with little recourse other than dismissal. See Spain, 26 F.3d at 455; Guyer v. Beard, 907 F.2d 1424, 1429-30 (3d Cir.1990).
Jackson’s case presents such egregious circumstances. After initiating this action in the District Court, Jackson effectively abandoned the action, as demonstrated by: (1) his failure to respond to three pending motions to dismiss, despite the District Court’s sua sponte grant of three extensions of time in which to do so4; (2) his *625failure to attend a scheduled status conference, without contacting the District Court or the defendants to seek a continuance or to excuse his absence; (3) his failure to initiate any contact whatsoever with the District Court for over a year, despite substantial docket activity in his case; and (4) his failure to file a motion to reopen the proceedings within the thirty days directed in the District Court’s dismissal order.
Jackson’s disappearance effectively made it impossible for the District Court to proceed with his case. See Spain, 26 F.3d at 455. Thus, dismissal was appropriate without strict adherence to Poulis. Under these circumstances, the District Court’s omission of a discussion of one of the six Poulis factors does not give rise to an abuse of discretion.
We also conclude that the District Court did not abuse its discretion in denying Jackson’s motion to reopen the proceedings. The District Court allotted Jackson a reasonable amount of time in which to file such a motion, and he failed to do so. Jackson attempts to attribute his delay to his personal circumstances, including his home foreclosure. However, Jackson’s explanation is not convincing, particularly in light of his history of dilatoriness in this case. The District Court did not abuse its discretion in declining to consider Jackson’s untimely motion.
III.
Jackson initiated this action and then effectively disappeared, making it impossible to proceed. Jackson cannot now complain of the District Court’s reasonable response to his actions. Based upon our close review of the record, we conclude that the District Court did not abuse its discretion in dismissing this case for failure to prosecute pursuant to Fed.R.Civ.P. 41(b) or in denying the untimely motion to reopen the proceedings. Because this appeal does not present a substantial question, we will affirm the District Court’s orders.
. Jackson filed his notice of appeal 137 days after the District Court entered the dismissal order pursuant to Rule 41(b). The appeal therefore initially appears to be untimely as to that order. See Fed. R.App. P. 4(a)(1). However, the District Court's dismissal was not "set out in a separate document” as required by Fed.R.Civ.P. 58(a). See In re Cendant Corp. Sec. Litig., 454 F.3d 235, 241 (3d Cir.2006). As a result, for purposes of filing an appeal, the judgment was not formally entered until 150 days after March 9, 2009. See Fed.R.Civ.P. 58(c)(2)(B); LeBoon v. Lancaster Jewish Community Center Ass'n, 503 F.3d 217, 224-25 (3d Cir.2007). Accordingly, Jackson timely appealed that order. The fact that Jackson appealed before the formal entry of judgment does not prevent us from entertaining the appeal. See LeBoon, 503 F.3d at 224, n. 5; Fed. R.App. P. 4(a)(2), 4(a)(7)(B).
. The decision that monetary sanctions are not appropriate falls within the District Court's discretion and is entitled to this Court's deference. See Mindek v. Rigalti, 964 F.2d 1369, 1375 (3d Cir.1992).
. We note that, under Poulis, a District Court assesses the merits of a claim under the same standard as a Rule 12(b)(6) motion to dismiss. See Briscoe, 538 F.3d at 263. Here, the District Court had already granted the three groups of defendants’ unopposed motions to dismiss pursuant to Rules 12(b)(1) and 12(b)(6) and, to that extent at least, concluded that Jackson’s claims lacked merit. Moreover, we express serious doubt over the merits of Jackson's claim, which appears to be little more than an untimely effort to seek appellate review of a Bankruptcy Court judgment. See Bankr.R. 8002(a) (ten day time for filing a notice of appeal from entry of a Bankruptcy Court judgment); In re Universal Minerals, Inc., 755 F.2d 309, 311 (3d Cir.1985) (the time for appealing a bankruptcy judgment is strictly construed and jurisdictional). Finally, even if we were to assume for the purpose of this analysis that the final Poulis factor weighs in Jackson's favor, the balance of the factors — four of six — would still weigh in favor of dismissal.
.The three motions to dismiss were filed in May 2008. The District Court sua sponte ordered three extensions of the time in which to respond, and ultimately ruled upon the motions more than six months after they were filed, in October 2008. During that period, Jackson made two docket entries, filing process receipts reflecting the same Monroeville, Pennsylvania address that Jackson used when he initiated the action in September 2007. All three motions to dismiss show that service was made upon Jackson at the Monroeville address. Accordingly, to the extent Jackson attempts to imply that he did not receive notice of the docket activity in his case due to his home foreclosure, such a contention lacks record support. See Fed.R.Civ.P. 5(b)(2)(C) *625(service is complete upon mailing to person's last known address). Jackson never responded to the motions to dismiss and, to date, has never explained his failure to do so.
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OPINION
FUENTES, Circuit Judge.
Appellant Raymond Cruz-Ruiz appeals from the District Court’s sentence of 57 months imprisonment and a three year term of supervised release, contending that the Court improperly imposed a sixteen level enhancement and that the sentence was unreasonable. For the following reasons, we affirm the District Court’s judgment.
I.
The District Court had jurisdiction over this case pursuant to 18 U.S.C. § 3231 and we have jurisdiction to hear this appeal under 28 U.S.C. § 1291 and 18 U.S.C. § 3742. We review a district court’s ultimate determination of a sentence for reasonableness under a deferential abuse of discretion standard. Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 597-98, 169 L.Ed.2d 445 (2007).
II.
Because we write primarily for the parties, we discuss the facts only to the extent necessary for resolution of the issues on appeal.
Ruiz pled guilty to one count of violating 8 U.S.C. § 1326(a), which states that “any alien who ... has been ... deported and thereafter ... enters ... the United States ... shall be ... imprisoned not more than 2 years.... [I]n the case of any alien ... whose removal was subsequent to a conviction for ... a felony ... such alien shall be fined under Title 18, imprisoned not more than 10 years, or both.” 8 U.S.C. §§ 1326(a)(l)(2) and (b)(1). While Ruiz’s initial base offense level was eight, the District Court added a sixteen level enhancement to his sentence because he pled guilty to a 1996 burglary of a residence. See U.S.S.G. § 2L1.2(b)(l)(A) (defining burglary of a dwelling as a crime of violence). Ruiz’s predicate offense arose from an incident where he broke into his wife’s home using an iron and claw hammer. The landlord of the residence was *627the complainant. Ruiz was sentenced to three years probation. Subsequent to that conviction, Ruiz was twice deported from the United States. Consequently the District Court sentenced Ruiz to 57 months imprisonment and three years of supervised release. This sentence was at the lowest end of the Guidelines range, which was 57 to 71 months. Ruiz appeals this sentence, arguing that the District Court should not have added the sixteen level enhancement and that the sentence was unreasonable.
III.
Ruiz contends that the District Court violated its charge to “impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in” the Sentencing Guidelines. 18 U.S.C. § 3553(a). While Ruiz does not challenge that burglary is a “crime of violence” within the meaning of the Guidelines, he nonetheless maintains that the sixteen level increase was unduly harsh. Thus, Ruiz argues that the sentence imposed did not appropriately “reflect the seriousness of the offense ... provide just punishment for the offense ... [or] afford adequate deterrence to criminal conduct.” 18 U.S.C. § 3553(a). Although Ruiz admits that he was convicted of burglary, he asserts that fundamental fairness demands a different result since the residence he burglarized was his wife’s home. See Appellant’s Brief at 6. According to Ruiz, the inequity and harshness of the sixteen level enhancement — which increased his base level from eight to twenty-four, less three points for acceptance of responsibility — is illustrated by the fact that he received only probation for the predicate offense.
At sentencing, the District Court noted that Ruiz had entered, or had attempted to enter, the United States illegally on six occasions and had been deported twice. Thus, according to the District Court, only imposition of a substantial sentence would act as a deterrent. The District Court also noted Ruiz’s long history of domestic violence.
We find Ruiz’s argument unpersuasive. He pled guilty to burglarizing his wife’s home, defined as a crime of violence in the Sentencing Guidelines. The fact that it was his own residence or that he received probation for that offense does not mandate that the District Court ignore this predicate conviction for sentencing purposes. At the sentencing hearing, after reviewing the Pre-Sentencing Report and hearing from Ruiz, his counsel, and the Government, the District Court noted that it based the sentence rendered on the nature of the crime, Ruiz’s history, and the factors enumerated in 18 U.S.C. § 3553(a). (App. 35-36). In light of the record, we cannot say that either the sixteen level enhancement or the ultimate sentence was unreasonable, or that the District Court abused its discretion.
IV.
For the foregoing reasons, we affirm the judgment of the District Court.
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OPINION OF THE COURT
HARDIMAN, Circuit Judge.
Licurtis Whitney appeals his judgment of conviction following his conditional plea of guilty, pursuant to which he reserved the right to challenge on appeal the District Court’s denial of his motions to suppress physical evidence and statements. We will affirm.
I.
Because we write for the parties, we recount only the facts essential to our analysis.
Acting on a tip that a vehicle matching the description of Whitney’s was involved in a drug deal, Delaware police followed Whitney and pulled him over around 2:00 a.m. after he failed to use his turn signal. Upon approaching the vehicle, one of the police officers noticed white crumbs similar to cocaine residue on Whitney’s clothing. The officer asked Whitney what the crumbs were, to which Whitney replied, “I don’t know.” The officer then shined his flashlight inside the vehicle, and noticed a clear, knotted sandwich bag containing an off-white chalky substance (later determined to be cocaine) on the floor behind the driver’s seat. Another officer spotted a similar bag partially obscured in the lap of the front-seat passenger. The officers arrested Whitney and his passenger and transported them to the police station where they were advised of, and invoked, their Miranda rights.
*629A month later, Whitney was questioned by federal agents from the Drug Enforcement Agency. The Government conceded that Whitney was not Mirandized before this meeting, so statements Whitney made could not be used at trial. Two months after that meeting, Whitney was arrested by the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) at his Maryland home and charged under 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846. This time Whitney was advised of his Miranda rights, completed a written waiver, and made certain incriminating statements.
Before trial on the federal charges, Whitney filed a motion to suppress all of the evidence against him: the cocaine found in his vehicle, statements made during the traffic stop prior to his arrest, and subsequent statements made to the ATF after waiving his Miranda rights. The District Court denied the motion and, following a conditional guilty plea, sentenced Whitney to 75 months in prison.
Whitney appeals the District Court’s evidentiary rulings. We have jurisdiction under 28 U.S.C. § 1291.
II.
A.
Whitney first argues that the cocaine seized by the police following the traffic stop should have been suppressed. The District Court ruled that the cocaine found in Whitney’s vehicle was admissible under
the well-settled rule that ‘objects such as weapons or contraband found in a public place may be seized by the police without a warrant [because the] seizure of property in plain view involves no invasion of privacy and is presumptively reasonable, assuming that there is probable cause to associate the property with criminal activity.’
Texas v. Brown, 460 U.S. 730, 738, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983) (quoting Payton v. New York, 445 U.S. 573, 586-587, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980)).
Whitney argues that the cover of darkness rendered the cocaine out of plain view, and that by shining a light inside his vehicle police committed an illegal search. This argument flies in the face of the Supreme Court’s statement that “[i]t is ... beyond dispute that [the police officer’s] action in shining his flashlight to illuminate the interior of Brown’s car trenched upon no right secured to the latter by the Fourth Amendment.” Id. at 739-40, 103 S.Ct. 1535.
So long as the officers who arrested Whitney “did not violate the Fourth Amendment in arriving at the place from which the [cocaine] could be plainly viewed,” the evidence is admissible. Horton v. California, 496 U.S. 128, 136, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990). See also United States v. Yamba, 506 F.3d 251, 257 (3d Cir.2007) (“The ‘plain view doctrine ... is best understood not as an independent exception to the warrant clause, but simply as an extension of whatever the prior justification for an officer’s access to an object may be.”). Whitney concedes that “an ordinary traffic stop is analogous to an investigative detention, [and] has been historically reviewed under the investigatory framework first articulated in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).” Appellant’s Br. at 11 (quoting United States v. Delfin-Colina, 464 F.3d 392, 396 (3d Cir.2006)). Under Terry, “the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant” the stop. 392 U.S. at 21, 88 S.Ct. 1868.
Here, it is undisputed that police observed Whitney violate state law by *630making a turn without using his turn signal, so the traffic stop was proper. See Pennsylvania v. Mimms, 434 U.S. 106, 109, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977) (finding “no question about the propriety of’ pulling over respondent for violating Pennsylvania Motor Vehicle Code). Nor does Whitney dispute that the “incriminating character” of the contraband seen in his car was immediately apparent, or that discovery of the cocaine gave rise to probable cause justifying the warrantless seizure. Therefore, because the officers were lawfully in a position from which to observe the drugs on the floor of Whitney’s car using a flashlight, the District Court correctly found that the evidence was admissible under the plain view doctrine.
B.
Whitney next challenges the District Court’s denial of his motion to suppress incriminating statements he made during the traffic stop and after his arrest by the ATF. Whitney claims the statements he made during the traffic stop were obtained in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), because he was not warned of his right to remain silent. The Supreme Court long ago rejected this argument, holding in Berkemer v. McCarty that because of “the non-coercive aspect of ordinary traffic stops,” motorists are not “in custody” and therefore not entitled to Miranda warnings. 468 U.S. 420, 440, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984). Whitney proposes an exception to this well-established rule based on the time of day and location where a traffic stop takes place. Such a distinction is unsupported by the law or logic. Accordingly, we reject Whitney’s strained attempt to distinguish Berkemer and affirm the admissibility of Whitney’s statements during the traffic stop.
Whitney also argues that the statement he gave to the ATF — which followed Miranda warnings and the execution of a written waiver — should have been suppressed because of the un-Mirandized statement he gave previously to the DEA. This argument also has been squarely rejected by the Supreme Court. See Oregon v. Elstad, 470 U.S. 298, 318, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985) (“[A] suspect who has once responded to unwarned yet uneoercive questioning is not thereby disabled from waiving his rights and confessing after he has been given the requisite Miranda warnings.”).
III.
In sum, because the District Court committed no legal error in denying Whitney’s motions to suppress physical evidence and statements, we will affirm the judgment.
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OPINION
SLOVITER, Circuit Judge.
Susan and John Shuey appeal from the District Court’s order dismissing their action filed against William G. Schwab, East Penn Township Supervisor, and Brian P. Horos and Alan W. Beishline, East Penn Township Police Officers (collectively, “East Penn”) because their counsel failed to timely respond to East Penn’s motion to dismiss under Fed.R.Civ.P. 12(b)(6). The District Court deemed counsel’s inaction to constitute agreement with East Penn’s motion and, in accordance with the District Court’s Local Rule 7.6, dismissed the Shueys’ complaint. The Court denied the Shueys’ motion for reconsideration, finding their counsel’s proffered reasons for delay insufficient.
Because the District Court failed to make a determination that dismissal was warranted based on the factors enunciated in Poulis v. State Farm Fire & Casualty Co., 747 F.2d 863, 868 (3d Cir.1984), we will vacate the District Court’s order and remand for further proceedings.
I.
The Shueys filed a civil rights action in June 2008, alleging violations of the United States Constitution, 42 U.S.C. §§ 1983, 1985, and 1988, the Pennsylvania Constitution, and various state laws. The central thrust of the Shueys’ complaint is that two East Penn Township police officers used excessive force and unlawfully arrested and falsely imprisoned Mrs. Shuey, and that various Township officials are vicariously liable for the officers’ actions.
East Penn filed a motion to dismiss the Shueys’ complaint in July 2008. The Shueys failed to respond within fifteen days from the date of service of East Penn’s motion, as required by Middle District of Pennsylvania Local Rule 7.6.1 The *632District Court, by Order dated August 21, 2008, directed the Shueys to file a brief in opposition to Defendants’ motion to dismiss or “otherwise communicate with the Court,” and stated that if the Shueys failed to respond within fifteen days the Court “will consider the motion to dismiss unopposed and grant dismissal without a merits analysis.” App. at 79. The Court also stated that upon failure of Plaintiffs to oppose Defendants’ motions, it may consider dismissing for failure to prosecute and failure to comply with a court order under Fed.R.Civ.P. 41(b). After the Court’s deadline had expired and its warning went unheeded, the District Court, by Order dated September 9, 2008, 2008 WL 4186208, granted East Penn’s motion to dismiss without addressing the merits of the complaint. Even though the District Court noted that, typically, the adjudication of cases involving unopposed motions warrants a merits analysis, it held that an analysis was unnecessary here, l-elying on our statement in Stackhouse v. Mazurkiewicz, 951 F.2d 29, 30 (3d Cir.1991), that a dismissal without a merits analysis based on a local rule is not always precluded, especially after a court had issued an adequate warning and when a litigant is represented by counsel.
Two days after the dismissal order was entered, the Shueys moved for reconsideration. The Shueys urged the District Court to reconsider its dismissal because the failure to respond to the Court’s Order was caused by a “technology error.”2 App. at 86. Counsel accepted “full responsibility for the error” and stated he was taking steps to prevent a recurrence. App. at 83.
The District Court denied the motion for reconsideration under Federal Rule of Civil Procedure 59(e). It rejected the Shueys’ argument that denying their motion would rise to a level of “manifest injustice.” App. at 7. Although counsel had proffered an excuse for his failure to respond to the Court’s order, the District Court complained that counsel never explained why Plaintiffs did not x-espond to the dismissal motion. The Shueys timely appealed.
II.
The Shueys contend that the Court either erred or abused its discx-etion by granting East Penn’s motion to dismiss without an analysis upon the merits.3 We agx'ee.
Dismissals with prejudice are drastic sanctions. Poulis, 747 F.2d at 867 (setting forth factors district courts must consider before dismissing claims or refusing to lift default judgments). Accoi'dingly, “it is imperative that the District Court have a full understanding of the surrounding facts and circumstances pertinent to the Poulis *633factors before it undertakes its analysis.” Briscoe v. Klaus, 538 F.3d 252, 258 (3d Cir.2008). Here, the District Court erred in denying the Shueys’ motion for reconsideration by relying on our dicta in Stack-house. In that case we stated that “we are not unmindful of the problems of the district court in dealing with a large volume of litigation,” 951 F.2d at 30, but we held that the action should not have been dismissed “without any analysis of whether the complaint failed to state a claim upon which relief can be granted.” Id. Poulis has been cited too often and is too deeply ingrained in the jurisprudence of this court and the district courts of this circuit for a court to assume that a party’s failure to respond to a motion to dismiss can be regarded as an abandonment of the claim. Poulis governs the District Court’s decision to dismiss the Shueys’ claim, and it was error to dismiss without first considering the Poulis factors.
For the reasons set forth, we will vacate the order of the District Court and remand for further proceedings.
. Local Rule 7.6 of the United States District Court for the Middle District of Pennsylvania provides as follows:
*632Any party opposing any motion shall file a responsive brief, together with any opposing affidavits, deposition transcripts or other documents, within fifteen (15) days after service of the movant's brief, ... Any respondent who fails to comply with this rule shall be deemed not to oppose such motion.
. Counsel explained that the Court's electronically filed order was errantly tagged as "spam” in counsel’s e-mail system and therefore was never delivered. App. at 81. Counsel further explained that the misdirected order would have been discovered by counsel's support staff had they not been "on vacation” or otherwise "unavailable.” App. at 82.
. We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. Generally, this court will review a denial of a motion for reconsideration under an abuse of discretion standard. See North River Ins. Co. v. CIGNA Reinsurance Co., 52 F.3d 1194, 1203 (3d Cir.1995). To the extent, however, that the District Court’s order is based on an interpretation of law, the issue is reviewed de novo. See Max’s Seafood Café v. Quinteros, 176 F.3d 669, 673 (3d Cir.1999).
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OPINION
PER CURIAM.
Cecil Brookins appeals pro se from the District Court’s entry of summary judgment in favor of defendants. Because we conclude that this appeal presents no substantial question, we will summarily affirm. See 3d Cir. L.A.R. 27.4; I.O.P. 10.6.
I.
Brookins filed an application to proceed in forma pauperis and a complaint pursuant to 42 U.S.C. § 1983 seeking damages against defendants, wherein he claimed that officers of the Pittsburgh Police Department used excessive force while taking him into custody on an arrest warrant. He asserts that the officers wanted to kill him because he refused to help certain corrupt police officers participate in drug trafficking. He also claims that defendants falsified the arrest warrant, implemented a custom and policy of using excessive force, denied him medical care, conspired to defraud the United States, conspired to prevent the truth from being presented at his trial, and committed other acts of fraud and deceit.
In February 2002, Brookins engaged in a standoff with the Pittsburgh Police Department. One officer, defendant Costa, was in a room alone with Brookins, trying to convince him to surrender to police on an arrest warrant. While Brookins and Costa were speaking, Brookins noticed SWAT team members outside and became panicked or angry. When the SWAT team entered the room, Brookins began shooting, striking Costa and defendant Huerbin, and missing defendant Knepp. Knepp fired at Brookins eight times, striking him five times. Knepp stopped shooting when Brookins dropped his weapon. A jury convicted Brookins of three counts of attempt*642ed homicide. Brookins later filed this action.
After Brookins had amended his complaint, the Magistrate Judge issued his first Report and Recommendation, recommending dismissal of all claims other than the excessive use of force claim. Defendants filed a motion for summary-judgment. In his second Report and Recommendation, the Magistrate Judge recommended that the defendants’ motion for summary judgment be granted. In March 2009, over Brookins’ objections, the District Court adopted both Reports and Recommendations in full, denied Brookins’ motions that sought injunctive relief and an extension of time, and granted the defendants’ motion for summary judgment. Brookins timely appealed.
II.
We have jurisdiction under 28 U.S.C. § 1291. Our review is plenary. See Torres v. Fauver, 292 F.3d 141, 145 (3d Cir.2002); Allah v. Seiverling, 229 F.3d 220, 223 (3d Cir.2000).
III.
The District Court dismissed sua sponte under 28 U.S.C. § 1915(e)(2)(B) all claims but Brookins’ excessive force claim. The District Court noted that Brookins complains repetitively, and at length, that a combination of governmental, law enforcement, legal, and medical personnel have conspired against him. However, as the District Court found, Brookins fails to plead “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, - U.S. -, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). A court may discredit allegations that are “fanciful, fantastic, and delusional” and thus may dismiss a complaint as factually frivolous when the facts alleged “rise to the level of the irrational or wholly incredible.” Denton v. Hernandez, 504 U.S. 25, 33, 112 S.Ct. 1728, 118 L.Ed.2d 340 (1992) (citations omitted). After careful review of both amended complaints, we conclude that Brookins’ claims, other than his excessive force claim, were properly dismissed under § 1915(e).
IV.
To succeed on a § 1983 claim, a plaintiff must show that the defendant, acting under of color of state law, deprived him of a federal right. West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988). In evaluating whether a plaintiffs rights were violated by an arresting officer’s use of force, a court must determine whether the officer’s actions in gaining custody of the plaintiff were “reasonable.” See Scott v. Harris, 550 U.S. 372, 381, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007); Graham v. Connor, 490 U.S. 386, 397, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). Factors to be considered include the severity of the crime, whether the suspect posed an immediate threat to public safety, and whether the suspect was actively resisting or evading arrest. See Graham, 490 U.S. at 396, 109 S.Ct. 1865; Carswell v. Borough of Homestead, 381 F.3d 235, 240 (3d Cir.2004).
The District Court’s entry of summary judgment in favor of defendants was proper because there was no genuine issue as to any material fact. Fed.R.Civ.P. 56(c). To overcome the defendants’ argument that summary judgment was warranted, Brookins had to “set forth specific facts” and present more than a “mere existence of a scintilla of evidence” in his favor. Anderson v. Liberty Lobby, Inc., *643477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Brookins’ argument that he was a blameless, unarmed victim is not borne out by the record, which shows that he was armed and that he shot first. Additionally, despite Brookins’ claim that he was shot sixteen times — or fourteen times, as he argued at trial — the trial record indicates that he was shot five times. Knepp’s testimony that he fired his weapon eight times before Brookins dropped his gun was uncontested. That the jury found Brookins guilty of three counts of attempted murder shows that it rejected a justification defense and establishes that Brookins was armed and shot the defendants. On this record, Brookins cannot show that the officers’ use of force was excessive. Accordingly, summary judgment was properly entered in favor of defendants.
V.
Brookins also filed a writ of mandamus to compel officials at SCI-Houtzdale to provide him with more frequent access to the prison law library. He avers that the four-to-six hours a week afforded to him is insufficient, and effectively denies him access to the courts. The District Court properly treated Brookins’ motion as one seeking injunctive relief. There is no indication in the record that the deficiencies in this case could have been remedied had Brookins been afforded more time in the prison law library. See Christopher v. Harbury, 536 U.S. 403, 415, 122 S.Ct. 2179, 153 L.Ed.2d 413 (2002) (to show a denial of access to the courts, a prisoner must demonstrate that the underlying claim was “arguable” and “nonfrivolous,” describe the official acts impeding the litigation, and identify a remedy that could not otherwise be obtained).
Finally, the District Court properly denied Brookins motion for an extension of time, after concluding that, given the clarity of the course of events surrounding Brookins’ arrest and shooting, and after seven years of litigation, no conceivable reason for an extension existed.
VI.
For the foregoing reasons, we conclude that the appeal presents no substantial question. Accordingly, we will summarily affirm the District Court’s judgment. See 3d Cir. L.A.R. 27.4; 3d Cir. I.O.P. 10.6.
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OPINION
PER CURIAM.
Petitioner Saul Montano is a native and citizen of El Salvador seeking review of the Board of Immigration Appeals’ *645(“BIA”) decision affirming a decision of the Immigration Judge (“IJ”) denying his applications for cancellation of removal and for a waiver of inadmissibility. For the following reasons, we will deny Montano’s petition for review.
I.
Montano entered the United States without inspection in 1990 and received Temporary Protected Status (“TPS”) in 1992. He became a lawful permanent resident (“LPR”) in 2001 under section 203 of the Nicaraguan Adjustment and Central American Relief Act. However, on March 3, 2004, Montano was convicted of third-degree aggravated assault in New Jersey, and on May 23, 2005, he was convicted of receiving stolen property. He was sentenced to two-years probation for each conviction. In 2007, the Department of Homeland Security (“DHS”) charged Montano as removable under 8 U.S.C. § 1227(a)(2)(A)© and (ii). On March 24, 2008, the Immigration Judge (“IJ”) found Montano removable on both charges.
At his removal proceeding, Montano filed an application for cancellation of removal under 8 U.S.C. § 1229b(a), and an application for a waiver of inadmissibility under 8 U.S.C. § 1182(h). The IJ found Montano to be ineligible for a waiver because he was not an arriving alien and because he did not (and could not) file an adjustment of status application in conjunction with the waiver application. The IJ determined that Montano was ineligible for cancellation of removal because he did not meet the requirement of seven years of continuous physical presence in the United States, as he only became an LPR in 2001 and his TPS period did not qualify as an “admission” to the United States.
On July 28, 2008, the BIA dismissed Montano’s appeal. Montano argued that, for the purposes of eligibility for cancellation of removal, his period of continuous physical presence in the United States should be tabulated from the time he received TPS. The BIA rejected this argument because the TPS period may be considered for the “continuous physical presence” calculation only if the Attorney General determines that extreme hardship exists. 8 U.S.C. § 1254a(e). Because Montano did not argue, or show, that such hardship existed, the BIA determined that he was statutorily ineligible for cancellation of removal as he could not establish more than two years of continual residence prior to his April 2003 arrest.1
The BIA also agreed with the IJ that Montano was ineligible for a waiver of inadmissibility because he did not file an application for an adjustment of status. See 8 U.S.C. § 1182(h). The BIA determined that the statute “does not provide for a ‘stand-alone’ waiver; and therefore [Montano] must submit an application for a ... waiver concurrently with an application for adjustment of status.”
Through counsel, Montano now petitions for review of the BIA’s final order of removal.
II.
We have jurisdiction to review a final order of removal pursuant to 8 U.S.C. § 1252(a)(1), and will sustain the BIA’s determination if there is substantial evidence to support it. Zubeda v. Ashcroft, 333 F.3d 463, 471 (3d Cir.2003).
*646Eligibility for cancellation of removal requires that a petitioner demonstrate that he or she has “(1) been ... lawfully admitted for permanent residence for not less than 5 years, (2) has resided in the United States continuously for 7 years after having been admitted in any status, and (3) has not been convicted of any aggravated felony.” 8 U.S.C. § 1229b(a). Although Montano was granted TPS in 1992, the TPS statute states that “the period of such status shall not be counted as a period of physical presence in the United states for purposes of section 1229b(a) ..., unless the Attorney General determines that extreme hardship exists.” 8 U.S.C. § 1254a(e) (repealed 1996).
Montano argues that he did not receive a full and fair hearing as to his applications for relief because the IJ did not hear any testimony concerning his claim of extreme hardship, and thus that his due process rights were violated. We have jurisdiction over Montano’s due process claim under 8 U.S.C. § 1252(a)(2)(D). Due process in this context requires that a petitioner be provided with a full and fair hearing and a reasonable opportunity to present evidence. Romanishyn v. Att’y Gen., 455 F.3d 175, 185 (3d Cir.2006). To prevail on a procedural due process challenge, a petitioner must make an initial showing of substantial prejudice. Bonhometre v. Gonzales, 414 F.3d 442, 448 (3d Cir.2005). Thus, in order to prevail here, Montano must make a strong showing that if the IJ had taken testimony from him or his family, he likely would have found “extreme hardship” and granted Montano’s application for a waiver of inadmissibility.
Montano does not, however, indicate how his or his family’s testimony would have demonstrated such hardship other than to say that his removal has “caused exceptional and unusual hardship to his family members lawfully here in the United States.” Therefore, even assuming that the IJ erred by ruling on his application without taking testimony, Montano has failed to show that he was prejudiced by that decision. For this reason, Montano is not entitled to relief on his due process claim.
We also have jurisdiction to review legal and constitutional questions concerning Montano’s eligibility for a waiver of inadmissibility pursuant to 8 U.S.C. § 1182(h)(2). See 8 U.S.C. § 1252(a)(2)(D). Eligibility for a waiver requires that “the Attorney general, in his discretion ..., has consented to the alien’s applying or reapplying for a visa, for admission to the United States, or adjustment of status.” 8 U.S.C. § 1182(h)(2). The BIA concluded that this language required Montano to file an application for an adjustment of status in conjunction with his waiver application. Because Montano did not and could not do so, he was ineligible for a waiver of inadmissibility.
Despite Montano’s argument to the contrary, In re Abosi, 24 I. & N. Dec. 204 (BIA 2007), supports the BIA’s determination that Montano could not succeed on an independent application for a waiver of inadmissibility. In Abosi, the BIA stated that 8 C.F.R. § 1245.1(f) — the adjustment of status regulation' — applies to aliens “in the United, States who are seeking to overcome a ground of inadmissibility and are required to file a concurrent application for adjustment of status in order to obtain a waiver.” 24 I. & N. Dec. at 205 (emphasis in original). Therefore, under the plain reading of the statute and the BIA’s interpretation of it in Abosi, substantial evidence supports the conclusion that as long as Montano was in the United States, he was barred from seeking a waiver of inadmissibility without also applying for a change of status.
*647Montano also appears to argue that this interpretation of the statute denied him his right to equal protection of the laws, as Abosi also concluded that LPRs who are outside the United States and seek to return via a waiver of inadmissibility are not required to file a concurrent adjustment of status application. Id. We assess whether a statute’s requirements violate the equal protection component of the Due Process Clause under rational basis review. Arca-Pineda v. Att’y Gen., 527 F.3d 101, 105 (3d Cir.2008). In Klementanovsky v. Gonzales, the Seventh Circuit confronted a similar issue, and found that the requirements of 8 U.S.C. § 1182(h) did not violate the petitioner’s equal protection rights. 501 F.3d 788 (7th Cir.2007). The Seventh Circuit rejected the petitioner’s assertion that the statute made an improper distinction between persons who “have left the country and returned, and those who have stayed and applied for a ... waiver directly,” stating that:
[the] line that Congress has drawn is between those criminal aliens who seek to be admitted to the United States and those ... who are being deported from the United States. In the case of the former, a humanitarian waiver is available under § [1182(h) ]. In the case of the latter, Congress has conspicuously refused to include a provision for a discretionary waiver of deportability from the applicable statute.
Id. at 791-92 (emphasis in original).
As the Seventh Circuit opined, “[t]here are any number of rational grounds on which Congress could choose to draw a line between those who committed crimes before applying to enter the country (making them inadmissible) and those who have committed crimes since arriving (making them deportable).” Id. at 792. One such reason is that Congress may have wanted people who were convicted of certain crimes to remain outside the country while them applications for the waiver are considered. Id. at 792-93. The Seventh Circuit’s rationale in Klementanovsky is sound, and we find that Montano’s equal protection rights have not been violated.
For the foregoing reasons, we deny Montano’s petition for review.
. For purposes of cancellation of removal, any period of continuous physical presence ends when "the alien has committed an offense referred to in section 1182(a)(2) of this title that renders the alien inadmissible.” 8 U.S.C. § 1229b(d)(l).
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OPINION OF THE COURT
NYGAARD, Circuit Judge.
Appellant Jose Rico-Hernandez, an aggravated felon, pleaded guilty to the crime of illegally re-entering the United States after deportation, a violation of 8 U.S.C. § 1326(a), (b)(2). He was sentenced to 72-months imprisonment, a term of supervised release and, relevant to this appeal, fined $100,000.00. He appeals only the imposition of the fine, arguing that it exceeds the maximum amount authorized by statute and that it is violative of the Eighth Amendment’s prohibition against excessive fines. We will affirm.
Appellant is a citizen of Mexico and had entered the United States illegally. He was convicted of aggravated assault in 2005 in Bucks County, Pennsylvania and while on parole arrested by agents of the Immigration and Customs Enforcement agency (ICE). He was deported in November of 2006. In October of 2007, Appellant was arrested in Bensalem, Pennsylvania. Appellant was subsequently indicted on one count of illegal re-entry by an aggravated felon after deportation. He pleaded guilty to this offense.
During his sentencing hearing, the Government urged the District Court to impose a sentence that would have a deterrent effect. The Government pointed out that when first deported, Appellant told ICE Agents that he “had no intention of abiding by the laws of this country because he, in fact ... would only get prosecuted if he got caught.” Opting for a sentence at the low end of the Guideline range, the District Court sentenced Appellant to 72-*655months imprisonment, but levied a fine of $100,000.00 against the Appellant.
On appeal, Rico-Hernandez challenges only the imposition of the fine. However, he argues neither the reasonableness of his fine nor that he lacks the ability to pay the fine. Instead Rick-Hernandez submits that the fine was illegal because it exceeds the statutory maximum permitted by the applicable statute. He maintains that his fine should be set by whichever state criminal code he violated when he committed the aggravated felony in 2005. This is incorrect as a matter of law. He pleaded guilty to a violation of 8 U.S.C. § 1326(b), which provides criminal penalties for the “re-entry of certain removed aliens.” The statute reserves the harshest penalties for those illegal re-entrants who have been previously convicted of an aggravated felony. United States v. Soto-Ornelas, 312 F.3d 1167, 1170 (10th Cir.2002) citing 8 U.S.C. § 1326(b)(2). Section 1326(b) provides for the imposition of a fine, but does not specify an amount. Therefore, the District Court correctly turned to 18 U.S.C. § 3571 which sets the maximum amount of a fine for a felony at $250,000.00. Because Rico-Hernandez’ fine of $100,000.00 does not exceed the statutory maximum set forth in 18 U.S.C. § 3571(b)(3), it was not levied contrary to law.
Rico-Hernandez also maintains that the fine violates the Excessive Fines Clause of the Eighth Amendment to the Constitution. He failed to raise this argument before the District Court, so we review for plain error. See United States v. Campbell, 295 F.3d 398, 404 (3d Cir.2002). The Eighth Amendment’s Excessive Fines Clause limits the Government’s power to extract payments, whether in cash or in kind, as punishment for some offense. See Alexander v. United States, 509 U.S. 544, 558-59, 113 S.Ct. 2766, 125 L.Ed.2d 441 (1993) (internal quotation marks omitted). A fine violates the Excessive Fines Clause when it is grossly disproportional to the gravity of the offense. United States v. Bajakajian, 524 U.S. 321, 334, 118 S.Ct. 2028, 141 L.Ed.2d 314 (1998).
As we have determined, the maximum fine for illegal re-entry into the United States by an aggravated felon is $250,000.00. At $100,000, Rico-Hernandez’ fine is not disproportionate to the statutory maximum fine of $250,000 per offense. See United States v. Newsome, 322 F.3d 328, 342 (4th Cir.2003) (finding no Eighth Amendment violation for restitution order that was not disproportionate either to the actual loss or to the statutorily authorized fine). We find no plain error and will affirm the imposition of the fine by the District Court.
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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/8473792/
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OPINION OF THE COURT
CHAGARES, Circuit Judge.
Barbara Kanoff appeals from the District Court’s order denying her motion to extend the time to file a notice of appeal pursuant to Federal Rule of Appellate Procedure 4(a)(5)(A)(ii). We will affirm.
I.
Because we write solely for the benefit of the parties, we will only briefly recite the essential facts.
Kanoff filed a complaint against Better Life Renting Corp. (“Better Life”). Better Life filed a motion to dismiss. On February 14, 2008, 2008 WL 442145, the District Court entered an order granting the motion.
Pursuant to Federal Rule of Appellate Procedure 4(a)(1)(A), Kanoff had until March 17, 2008 to file a notice of appeal with the District Court. The local rules required that such notices be electronically filed. Kanoffs counsel attempted to file the notice in hardcopy form on March 11, 2008. The Clerk’s Office received the hardcopy notice, but not until March 26, 2008, because Kanoffs secretary had included the wrong address on the envelope she mailed that contained the hardcopy notice. The Clerk docketed the notice and deemed it filed on March 26, 2008, but by that time, the notice was no longer timely.
On March 31, 2008, counsel filed a motion to extend the time to appeal pursuant to Rule 4(a)(5)(A)(ii). He argued that his failure to file the notice of appeal electronically constituted “excusable neglect” within the meaning of that rule because he did not know that notices of appeal must be electronically filed. The District Court held that counsel’s lack of knowledge of proper filing procedures did not constitute “excusable neglect” and denied the motion.
The District Court observed that the delay did not greatly prejudice Better Life, but held that “[fjault in the delay remains an important factor — perhaps the most important single factor — in determin*657ing whether neglect is excusable.” Appendix (“App.”) at 3 (citing City of Chanute v. Williams Natural Gas Co., 31 F.3d 1041, 1046 (10th Cir.1994)). The District Court held that, in light of the fact that the electronic filing requirement was made publicly available via inclusion in District of New Jersey Local Civil Rules and was the subject of a District of New Jersey Standing Order, counsel’s fault in failing to follow established filing requirements outweighed the absence of prejudice (as well as other countervailing factors) and therefore that counsel’s neglect was not “excusable” within the meaning of Rule 4(a)(5)(A)(ii).
Kanoff then filed this appeal.
II.
The District Court had jurisdiction pursuant to 28 U.S.C. § 1332(a)(1), and we have jurisdiction pursuant to § 1291. We review the District Court’s ruling that counsel’s neglect that caused the notice of appeal not to be timely filed was not “excusable” within the meaning of Rule 4(a)(5)(A)(ii) for abuse of discretion. Consol. Freightways, 827 F.2d at 918.
Rule 4(a)(1)(A) provides that a party has 10 days in which to file a notice of an appeal from a District Court order. Rule 4(a)(5)(A)(ii), however, allows a district court to extend that time if “that party shows excusable neglect....”1 The Supreme Court has explained that determining whether neglect is “excusable” requires weighing a number of factors, including “the danger of prejudice to the [non-movant], the length of the delay and its potential impact on judicial proceedings, the reason for the delay, including whether it was within the reasonable control of the movant, and whether the movant acted in good faith.” Pioneer Investment Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 388, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993). These factors, however, do not establish a mathematical formula; “the determination is at bottom an equitable one----” Id. at 395, 113 S.Ct. 1489.2 Though no one factor is dispositive, “inadvertence, ignorance of the rules, or mistakes construing the rules do not usually constitute ‘excusable’ neglect....” Id. at 392, 113 S.Ct. 1489. To summarize, “excusable neglect” describes situations “where the court, after weighing the relevant considerations is satisfied that counsel has exhibited substantial diligence, professional competence and has acted in good faith to conform his or her conduct in accordance with the rule, but as the result of some minor neglect, compliance was not achieved.” Consol. Freightways, 827 F.2d at 920.
The District Court did not abuse its considerable discretion in ruling that coun*658sel’s failure to file the notice of appeal electronically was not an instance of “excusable neglect” within the meaning of Rule 4(a)(5) (A) (ii).
First, the electronic filing was incorporated into at least two authorities that govern attorneys practicing in the District of New Jersey: Standing Order 05-1 and Local Civil Rule 5.2. Second, this requirement did not come into existence weeks or even months before counsel had the occasion to file the notice of appeal that is the subject of this case. It existed at least as early as January 81, 2005 — more than three years before the District Order issued the order Kanoff attempted to appeal. See Standing Order 05-1. Third, even if counsel did not know that notices of appeal need to be electronically filed, he knew as early as May 21, 2007 that some documents which before could be filed in hardcopy had to be filed electronically. See App. 11 (District Court docket sheet reflecting warning to counsel that “[cjivil initial pleadings” must be filed electronically).
Kanoffs reliance on Consolidated Freightways is misplaced. He correctly points out that in Consolidated Freight-ways, we held that merely failing to address an envelope correctly constituted “excusable neglect” within the meaning of Rule 4(a)(5)(A)(ii). He then argues that, had his secretary correctly addressed the envelope containing Kanoffs notice of appeal, the Clerk’s Office would have received it and docketed it by March 17, 2008 (the timeliness cut-off date). This argument is unavailing. In Consolidated Freightways, mailing a correctly-addressed envelope constituted complying with proper procedure. Had the Clerk there received the hardcopy notice of appeal in a timely fashion, the Clerk would have been obligated to docket that notice. Here, by contrast, mailing a correctly-addressed envelope still would have violated the District Court’s directive that notices of appeal must be filed electronically. There is nothing in the record to suggest that the Clerk would have docketed the non-compliant notice, even had it been timely received.
Put simply, this was not a case where “as the result of some minor neglect, compliance was not achieved.” Consol. Freightways, 827 F.2d at 920. Compliance was not achieved because counsel failed to educate himself about a sea change in filing requirements that had taken place more than three years before the relevant events of the instant case. The District Court acted within its discretion in declining to permit counsel to file a notice of appeal out of time.
III.
For the foregoing reasons, we will affirm the decision of the District Court.
. A district court also may extend the time in which to file a notice of appeal for "good cause," but the "good cause" prong is reserved for events over which the filing party has no control. See Fed. R.App. P. 4 Advisory Committee Notes ("The excusable neglect standard applies in situations in which there is fault.... The good cause standard applies in situations in which there is no fault — excusable or otherwise.”).
. Our Court, in a case pre-dating Pioneer Investment Services, recited a similar list:
whether the inadvertence reflects professional incompetence such as ignorance of the rules of procedure ...; [ ] whether the asserted inadvertence reflects an easily manufactured excuse incapable of verification by the court ...; [ ] whether the tardiness results from counsel’s failure to provide for a readily foreseeable consequence ...; [ ] whether the inadvertence reflects a complete lack of diligence ...; or [ ] whether the court is satisfied that the inadvertence resulted despite counsel’s substantial good faith efforts toward compliance.
Consolidated Freightways Corp. of Del. v. Larson, 827 F.2d 916, 919 (3d Cir.1987).
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OPINION OF THE COURT
CHAGARES, Circuit Judge.
Oscar Villicana-Ibarra raises, for preservation purposes, a constitutional challenge to the District Court’s use of his prior conviction to raise the statutory maximum punishment in this case. Specifically, Villicana-Ibarra argues that his Fifth and Sixth Amendment rights were violated when the maximum sentence to which he was exposed was raised from 2 to 20 years of imprisonment, based on a prior conviction that was neither charged in the indictment nor admitted or proven to a jury beyond a reasonable doubt. As Villicana-Ibarra acknowledges, the Supreme Court’s holding in Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), precludes relief in this case. We will therefore affirm the District Court’s judgment.
I.
Because we write solely for the benefit of the parties, we will only briefly summarize the essential facts.
Villicana-Ibarra pleaded guilty to a single count of reentry after deportation in violation of 8 U.S.C. § 1326(a) and (b)(2). The indictment contained no allegation or notice regarding any prior conviction for an aggravated felony, and Villicana-Ibarra did not admit to having sustained such a conviction at his change-of-plea hearing.
The Presentence Report (“PSR”) noted that Villicana-Ibarra’s base offense level was 8, but that he was subject to a 16-level increase under U.S.S.G. § 2L1.2 because he was deported after a conviction for an aggravated felony. Villicana-Ibarra received a 3-level downward departure for acceptance of responsibility, which resulted in an ultimate offense level of 21. That offense level, together with Villicana-Ibarra’s criminal history category of IV, ren*660dered a Guidelines range of 57-71 months of imprisonment.
The District Court adopted the PSR calculation and sentenced Villicana-Ibarra to 60 months of imprisonment. Villicana-Ibarra filed a timely appeal.
II.
The District Court had jurisdiction under 18 U.S.C. § 3231. This Court has jurisdiction pursuant to 28 U.S.C. § 1291.
This case concerns the application of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and thus presents a question of law over which we exercise plenary review. See United States v. Barbosa, 271 F.3d 438, 452 (3d Cir.2001).
III.
Villicana-Ibarra argues that the District Court violated his Fifth and Sixth Amendment rights when it increased his maximum sentence based on a prior conviction that was neither charged in the indictment nor admitted or proved to a jury beyond a reasonable doubt. Villicana-Ibarra notes that 8 U.S.C. § 1326(a) carries a two-year maximum sentence, but that he was sentenced under § 1326(b)(2), which increases the maximum sentence to 20 years when a defendant was previously removed for conviction of an “aggravated felony.” Villicana-Ibarra argues that the indictment in his case never mentioned a prior conviction for an aggravated felony, and thus his sentence violates Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).
As Villicana-Ibarra acknowledges, his argument is foreclosed by the Supreme Court’s decision in Almendarez-Torres, 523 U.S. at 235, 243, 118 S.Ct. 1219 (holding that prior convictions that increase the statutory maximum for an offense are sentencing factors, not elements of the offense, and thus may be determined by district courts by a preponderance of the evidence). Although it is true that the Apprendi Court may have questioned the reasoning of Almendarez-Toms, it is undisputed that ultimately the Court did not overrule Almendarez-Toms. See Apprendi, 530 U.S. at 489, 120 S.Ct. 2348.1 In fact, Apprendi specifically held that “[ojther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Id. at 490, 120 S.Ct. 2348 (emphasis added).
This Court’s decisions in United States v. Coleman and United States v. Ordaz further reaffirmed the continued validity of Almendarez-Toms. See United States v. Coleman, 451 F.3d 154, 159 (3d Cir.2006) (holding that Almendarez-Toms is good law after Apprendi); United States v. Ordaz, 398 F.3d 236, 241 (3d Cir.2005) (applying Almendarez-Toms to Sixth Amendment claims). We therefore conclude that the District Court did not err in applying an increased statutory maximum in this case, based on Villicana-Ibarra’s prior conviction.
IV.
For these reasons, we will affirm the District Court’s judgment.
. Specifically, the Supreme Court noted, "Even though it is arguable that AlmendavezTorres was incorrectly decided, and that a logical application of our reasoning today should apply if the recidivist issue were contested, Apprendi does not contest the decision's validity and we need not revisit it for purposes of our decision today to treat the case as a narrow exception to the general rule we recalled at the outset.” Id.
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OPINION
SLOVITER, Circuit Judge.
Appellant Woody Grier pled guilty to one count of possession with intent to distribute and distribution of five grams or *662more of cocaine base and was sentenced to 235 months imprisonment. He appeals two of the District Court’s rulings under the Sentencing Guidelines and the reasonableness of his ultimate sentence.1
I.
In 2006, Grier sold cocaine base to several confidential informants in Harrisburg, Pennsylvania. Thereafter, state officers obtained a search warrant and discovered cocaine base in a residence that Grier used to distribute drugs. Grier admitted to police at that time that he possessed the cocaine with the intent to distribute it.
Grier was subsequently indicted for one count of possession with intent to distribute five grams or more of cocaine base in violation of 21 U.S.C. § 841(a). After his arrest and initial appearance, Grier was released pending a detention hearing to be held four days later. However, he failed to appear at that hearing. Grier was subsequently apprehended and ordered detained pending trial. He was then placed in state prison based on a warrant for failure to pay child support, but the prison mistakenly released him after two days.
Following his mistaken release, Grier remained outside custody for over eight months. He was finally arrested during a traffic stop in which he provided a false name and date of birth and was again found in possession of cocaine base. Grier then entered into a plea agreement in which he agreed to plead guilty to the drug charge in exchange for, as relevant here, the government’s agreement to recommend a downward departure under the Sentencing Guidelines for acceptance of responsibility. Grier subsequently entered his guilty plea in the District Court.
The Probation Office prepared a Presentence Investigation Report (“PSR”), which the District Court adopted without change at Grier’s sentencing hearing.2 Grier faced a base offense level of 24 on the drug offense, and the PSR recommended a two-level enhancement for obstruction of justice under U.S.S.G. § 3C1.1 based on Grier’s failure to report to his detention hearing and his eight months as a fugitive following his mistaken release from state prison. In addition, the PSR determined that Grier was a career offender, and therefore he faced an offense level of 34 and a criminal history category of VI under U.S.S.G. § 4B1.1. Further, the PSR determined that a downward departure for acceptance of responsibility was not warranted in light of Grier’s obstruction of justice.
Grier challenged the obstruction of justice enhancement and the rejection of the acceptance of responsibility departure, but the District Court rejected those challenges in light of Grier’s failure to report to his detention hearing and his conduct following his mistaken release from state prison, including his use of a false identity when arrested and possession of cocaine. The government did move for a downward departure of one level under U.S.S.G. § 5K1.1 based on Grier’s substantial assistance, and the Court granted that departure. Thus, Grier ultimately faced a Guidelines range of 235 to 293 months imprisonment.
The District Court then heard argument from the parties regarding an appropriate sentence. As relevant here, Grier argued *663for a downward variance because he provided care for his mother, who suffers from cancer, and because his conduct following the plea agreement demonstrated acceptance of responsibility.
As noted above, the District Court sentenced Grier to 235 months imprisonment, the bottom of the Guidelines range. It concluded that this sentence was appropriate in light of Grier’s substantial criminal history (six adult convictions, five of which related to drugs), including Grier’s continued involvement in drugs following his arrest for the instant offense, and the need to deter Grier from committing future crimes. It also rejected Grier’s request for a downward variance so that he could provide care for his mother. The judge stated that other family members were available to aid his mother and, in any case, the only sentence that would allow Grier to render such aid would be probation, which the court concluded was inappropriate here.
II.
On appeal, Grier first challenges the District Court’s rulings under the Sentencing Guidelines regarding the obstruction of justice enhancement and the departure for acceptance of responsibility. We review these decisions for clear error. See United States v. Grier, 475 F.3d 556, 570 (3d Cir.2007) (en banc).
As to the obstruction of justice enhancement, we note initially that, in light of his status as a career offender (which Grier does not challenge), the obstruction of justice enhancement had no direct effect on his ultimate advisory Guidelines sentence under U.S.S.G. § 4B1.1. Further, under the circumstances of this case, the District Court did not commit clear error in concluding that Grier willfully obstructed justice. The Guidelines commentary expressly states that “escaping ... from custody before trial” and “willfully failing to appear, as ordered, for a judicial proceeding” constitute obstruction. U.S.S.G. § 3C1.1 cmt. n. 4(e). After Grier was released following his initial appearance, he failed to appear as ordered at his detention hearing four days later. Grier points to no evidence suggesting that this failure to appear was due to a mistake or inadvertence. Additionally, following his accidental release from state prison, Grier disappeared for eight months, despite his awareness of the pending federal drug charge. When he was finally arrested, he was found in possession of additional drugs. and attempted to avoid detection by providing the police with a false identity.
The District Court also did not commit clear error in rejecting a downward departure for acceptance of responsibility. The Guidelines commentary states that where, as here, the defendant engages in conduct resulting in an enhancement for obstruction of justice, such conduct “ordinarily indicates that the defendant has not accepted responsibility for his criminal conduct.” U.S.S.G. § 3E1.1 cmt. n. 4. Here, Grier points to no extraordinary circumstances supporting a contrary conclusion.
Further, in United States v. Boettger, 316 F.3d 816, 817 (8th Cir.2003), the court of appeals upheld a denial of a departure for acceptance of responsibility in a starkly similar ease. There, the defendant was released from custody pending trial on drug charges but he fled, and after he was subsequently arrested, he was inadvertently released from prison and again attempted to flee; all the while, the defendant continued his drug use. Id. The court upheld the denial of a departure because the defendant’s “conduct was inconsistent with an acceptance of responsibility.” Id. So too were Grier’s actions.
*664Finally, Grier argues that his ultimate sentence was unreasonable because it overstated the seriousness of his criminal history. We review the reasonableness of a sentence under an abuse-of-discretion standard. See United States v. Tomko, 562 F.3d 558, 566-67 (3d Cir.2009) (en banc). Here, the sentence imposed was procedurally and substantively reasonable. The Court correctly calculated the Guidelines range, properly ruled on the requested departures under the Guidelines, and heard argument from the parties regarding an appropriate sentence. Moreover, it did not abuse its discretion in imposing a sentence of 235 months given Grier’s extensive criminal history and conduct following his initial arrest on the instant offense.
III.
For the above-stated reasons, we will affirm the judgment and sentence.
. The District Court had jurisdiction pursuant to 18 U.S.C. § 3231 and we have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
. Grier's sentence was calculated under the 2007 version of the U.S. Sentencing Guidelines Manual.
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OPINION OF THE COURT
CHAGARES, Circuit Judge.
Alif Bass appeals from the District Court’s judgment of sentence. We will affirm.
*665I.
On December 19, 2007, 2007 WL 4389887, Bass pleaded guilty to one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). He entered into a plea agreement with the Government, stipulating that the 2005 Sentencing Guidelines (“U.S.S.G.”) applied and that his total offense level was 23. See Supplemental Appendix (“SuppApp.”) at 12. The Probation Office (“Probation”) prepared a Pre-Sentence Report (“PSR”) using the 2005 Guidelines. Probation computed Bass’s criminal history score to be 20, putting him in criminal history category VI. See PSR ¶ 55.
In applying the Guidelines, Probation added three points to Bass’s criminal history score “for each prior sentence of imprisonment exceeding one year and one month.” U.S.S.G. § 4Al.l(a) (2005). But, the Guidelines provide that only “unrelated” prior sentences are to be counted separately. § 4A1.2(a)(2) (2005). Probation determined that four of Bass’s prior sentences, though all imposed on the same day, April 12, 2004, were “unrelated” and assessed him 12 criminal history points on this basis. Probation assessed three more criminal history points based upon another prior sentence, this one imposed July 12, 2004. PSR ¶¶ 51-52. Other factors not at issue in this appeal generated a total criminal history score of 20, and a corresponding criminal history category of VI. Bass filed some objections to the PSR, but prior to sentencing he disclaimed those that “pertain[ed] ... to his Criminal History Category being over represented.” Supp.App. at 37.
On July 14, 2008, the District Court held a sentencing hearing. It accepted the parties’ stipulation regarding Bass’s total offense level. It also adopted Probation’s calculation of Bass’s criminal history score and category as set forth in the PSR. See Judgment and Commitment Order, Statement of Reasons (Not for Public Disclosure). The court then imposed a term of imprisonment within the range associated with a total offense level of 23 and a criminal history category of VI.
Bass then filed this appeal, arguing that his criminal history score was miscalculated. Specifically, Bass contends that the District Court erred in counting his four April 12, 2004 sentences separately and, therefore, that he is entitled to a nine-point criminal history score reduction on that basis. He also argues that the District Court erred in attributing the July 12, 2004 prior conviction and sentence to him — because his twin brother Ali, not he, committed that crime and served that sentence — -and therefore that he is entitled to a (separate) three-point reduction on that basis.
II.
The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have jurisdiction pursuant to § 3742(a).
We engage in plain error review of the District Court’s ruling that Bass’s prior sentences were not “related” within the meaning of § 4A1.2(a)(2), because Bass failed to make this argument to the District Court. See United States v. Olano, 507 U.S. 725, 731, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). We engage in plain error review of the District Court’s decision to count the July 12, 2004 sentence (which Bass contends is attributable to his twin brother Ali) as a prior sentence within the meaning of § 4Al.l(a), as well, for the same reason. See id.
III.
A.
Bass advances multiple arguments as to why the District Court should have treated *666his prior convictions as “related” within the meaning of § 4A1.2(a)(2). First, he argues that the District Court misapplied the 2005 Guidelines. Bass is mistaken. Application Note 3 to that provision in the 2005 Guidelines explains: “Prior sentences are not considered related if they were for offenses that were separated by an intervening arrest (i.e., the defendant is arrested for the first offense prior to committing the second offense).....” § 4A1.2, cmt. n. 3 (2005).
The four sentences imposed on April 12, 2004 were for offenses separated by an intervening arrest. Bass was arrested for the first offense (attempted theft) on December 25, 2000, Pre-Sentence Report (“PSR”) ¶¶ 42-43, prior to committing the second offense (possession with intent to distribute a controlled dangerous substance within 1,000 feet of a school) on April 4, 2001, PSR ¶¶ 44-45. Bass was arrested for this second offense on that same day, April 4, 2001, PSR ¶¶ 44-45, prior to committing the third offense (possession of crack cocaine) on June 10, 2001, PSR ¶¶ 47-48. Bass was arrested for this third offense on that same day, June 10, 2001, PSR ¶¶ 47-48, prior to committing the fourth offense (receipt of stolen property) on October 21, 2001, PSR ¶¶ 49-50.
Second, Bass argues that the District Court should have applied the 2008 Guidelines, and that those Guidelines prevent the District Court from counting the four April 12, 2004 sentences separately (even if the 2005 Guidelines do not). We note at the outset that Bass stipulated at sentencing that the 2005 Guidelines (and not the 2008 Guidelines) applied. But regardless, Bass is incorrect on the merits. The 2008 Guidelines, like the 2005 Guidelines, provide that “[p]rior sentences always are counted separately if the sentences were imposed for offenses that were separated by an intervening arrest (i.e., the defendant is arrested for the first offense prior to committing the second offense).....” § 4A1.2(a)(2) (2008). Therefore, under the 2008 Guidelines, Bass’s April 12, 2004 convictions still count separately.1
Thus, in deciding to count Bass’s four April 12, 2004 sentences separately, the District Court committed no error, much less plain error.
B.
Bass also argues that the District Court should not have considered the prior sentence imposed on July 12, 2004 because that sentence and the conviction underlying it were his brother Alf s, not his. Even if this were true, and Bass’s criminal history score were thereby reduced from 20 to 17, he still would be in criminal history category VI and therefore would be subject to the same Guidelines range as the one the District Court determined (under the 2005 Guidelines and even under the 2008 Guidelines). Therefore, we need not consider whether attributing this conviction and sentence to Bass was error.
IV.
For the above reasons, we will affirm the District Court’s judgment of sentence.
. Bass further argues that even if the 2008 Guidelines did not apply as a technical matter, the District Court should have considered them in the total mix of sentencing factors as evidence of the Sentencing Commission's " 'current thinking' ” on the subject of separate prior sentences and concluded that Bass’s April 12, 2004 convictions and sentences should not count separately. See Bass Br. 19 (quoting United States v. Godin, 522 F.3d 133, 136 (1st Cir.2008)). Because, as we have explained, the Commission's “current thinking” appears to be substantively identical in all relevant respects to its 2005 thinking, we reject this argument.
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OPINION
SLOVITER, Circuit Judge.
Richard Hatkewicz (“Petitioner”) has filed a petition for review of a final order of removal of the Board of Immigration Appeals (“BIA”), which adopted and affirmed the decision of the Immigration Judge (“IJ”) denying Petitioner’s challenge to removability based on claimed citizenship and denying his applications for adjustment of status, cancellation of removal, asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”), 8 U.S.C. § 1231. For the reasons stated below, we will deny the petition.
I.
Petitioner was born in Poland in 1973 and lived in a Polish orphanage until age three, when he was adopted by two United States citizens. Petitioner then moved with his adoptive parents to New York, where he was enrolled in school and admitted to the United States as a lawful permanent resident. By the second grade, Petitioner began to exhibit behavioral problems. He was ultimately diagnosed as having attention deficit disorder.
Before Petitioner’s eighteenth birthday, his adoptive parents filed an Application to File Petition for Naturalization In Behalf of Child, Form N-402, dated September 17, 1990 (the “1990 Application”). The 1990 Application was the first step toward filing a petition for naturalization. See Brue v. Gonzales, 464 F.3d 1227, 1232 n. 3 (10th Cir.2006) (explaining that the Form N-402 application was a “necessary ante*669cedent” to filing a petition for naturalization prior to the Immigration Act of 1990). The Immigration and Naturalization Service (“INS”)1 did not adjudicate the 1990 Application, however, and there is no indication that Petitioner or his parents ever followed up or inquired about its status.
In 1992, at age nineteen, Petitioner pled guilty in the Supreme Court of New York to attempted robbery in the second degree in violation of N.Y. Penal Law § 160.10(2)(b).2 He was sentenced to one to three years in prison. In 1994, after serving his sentence, Petitioner filed an Application for Certificate of Citizenship, Form N-600 (the “1994 Application”), with the INS. The INS denied the 1994 Application because (1) Petitioner’s adoptive parents “failed to file a Petition for Naturalization or a Certificate of Citizenship while [he] was under the age of 18 years,” and (2) Petitioner was over the age of eighteen when he filed his own application. R. at 694. Petitioner did not file an appeal or otherwise challenge this determination.
In 2001, Petitioner pled guilty in the New Jersey Superior Court to theft by deception in the third degree in violation of N.J. Stat. Ann. § 2C:20-4. He was sentenced to four years in prison. In 2004, Petitioner again pled guilty in the New Jersey Superior Court to shoplifting in the third degree in violation of N.J. Stat. Ann. § 2C:20-11. This time, Petitioner was sentenced to five years in prison.
On the basis of Petitioner’s 1992 attempted robbery conviction and his 2004 shoplifting conviction the INS instituted removal proceedings against him as an aggravated felon. See 8 U.S.C. § 1227(a)(2)(A)(iii) (“Any alien who is convicted of an aggravated felony at any time after admission is deportable.”). The INS charged that Petitioner was removable as an aggravated felon under 8 U.S.C. §§ 1101(a)(43)(F)-(G) for having been convicted of (1) a crime of violence for which the term of imprisonment was at least one year; and (2) a crime relating to theft or burglary for which the term of imprisonment was at least one year. Although Petitioner admitted to the underlying attempted robbery and shoplifting convictions, he claimed that he was a United States citizen — and therefore not removable — as a result of the Child Citizenship Act of 2000 (“CCA”), 8 U.S.C. § 1431. Petitioner further claimed that the 1990 and 1994 Applications afforded him United States national status and that the 1990 Application made him eligible for United States citizenship nunc pro tunc under the former 8 U.S.C. § 1433.
Alternatively, Petitioner sought cancellation of removal on the grounds that he had not been convicted of any aggravated felony. In addition, Petitioner sought asylum, withholding of removal, and protection under the CAT on the grounds that his attention deficit disorder would subject him to persecution in Poland. Petitioner does not speak Polish, has no ties to Poland, and has not been back to that country since his adoption.
The IJ rejected Petitioner’s claims of citizenship and found that he was removable as an aggravated felon. Accordingly, *670the IJ denied Petitioner’s requests for relief and ordered him removed to Poland. The BIA adopted and affirmed the IJ’s decision in a written opinion.
II.
Petitioner seeks review of the final order of removal by the BIA. We have jurisdiction pursuant to 8 U.S.C. § 1252(a)(1). Because the basis for removal is Petitioner’s aggravated felony convictions, our jurisdiction is limited under the REAL ID Act to “constitutional claims or questions of law.” Id. § 1252(a)(2)(C)-(D). Where, as here, “the BIA both adopts the findings of the IJ and discusses some of the bases for the IJ’s decision, we have authority to review the decisions of both the IJ and the BIA.” Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir.2004). We review the legal determinations of the IJ and BIA de novo, subject to the principles of deference articulated in Chevron v. Natural Resources Defense Council, 467 U.S. 837, 844, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). See Pierre v. Att’y Gen., 528 F.3d 180, 184 (3d Cir.2008) (en banc). Under the REAL ID Act, factual or discretionary determinations are outside of our scope of review. Sukwanputra v. Gonzales, 434 F.3d 627, 634 (3d Cir.2006).
III.
Petitioner argues that he is not an alien but rather (1) a citizen of the United States under the CCA or (2) a national of the United States based on the 1990 and 1994 Applications. Alternatively, he argues that he is eligible for citizenship nunc pro tunc based on the former 8 U.S.C. § 1433 and filing of the 1990 Application. We disagree.
A. Citizenship under the Child Citizenship Act of 2000 (“CCA”)
First, Petitioner is not a citizen under the CCA because he failed to satisfy the age requirement. Under the CCA, a child born outside of the United States automatically becomes a citizen when “(1) at least one parent is a citizen of the United States; (2) the child is under the age of eighteen years; and (3) the child is residing in the legal and physical custody of the parent pursuant to a lawful admission for permanent residence.” 8 U.S.C. § 1431(a). The IJ and BIA correctly observed that the CCA went into effect on February 27, 2001. 8 U.S.C. § 1431; Jordon v. Att’y Gen., 424 F.3d 320, 328 (3d Cir.2005). In Morgan v. Attorney General, 432 F.3d 226, 230 n. 1 (3d Cir.2005), we held that this law “does not apply retroactively to persons ... who turned eighteen before Congress passed the [CCA].” See also Jordon, 424 F.3d at 328 (“Because all relevant events respecting [petitioner’s] claimed derivative citizenship occurred pri- or to the [CCA’s] effective date, [a predecessor statute] controls our analysis.”). Petitioner was twenty-seven years old when Congress passed the CCA. He is therefore not a citizen under the statute.
B. The 1990 and 1994 Applications
Second, Petitioner is not a United States national by having filed the 1990 and 1994 Applications. A national of the United States is “a person who, though not a citizen ..., owes permanent allegiance to the United States.” 8 U.S.C. § 1101(a)(22). According to Petitioner, “an application for citizenship is the most compelling evidence of permanent allegiance to the United States short of citizenship itself.” Pet’r’s Br. 13 (quoting United States v. Morin, 80 F.3d 124, 126 (4th Cir.1996)). This court has held that “simply filing an application for naturalization does not prove that one ‘owes a permanent allegiance to the United States.’” Salim v. Ashcroft, 350 F.3d 307, 310 (3d Cir.2003) *671(per curiam). “[N]othing less than citizenship will show ‘permanent allegiance to the United States’ ” for one who is a citizen of another country. Id. Petitioner points only to his applications for naturalization, one of which was denied and one of which was not adjudicated. We agree with the BIA that Petitioner’s mere filing of the 1990 and 1994 Applications was not enough to confer status on him as a United States national.
C. Citizenship Nunc Pro Tunc
Petitioner is not eligible for citizenship nunc pro tunc based on the 1990 Application. The Latin phrase nunc pro tunc, literally “now for then,” describes an equitable doctrine that “permits acts to be done after the time they should have been done with a retroactive effect,” Barden v. Keohane, 921 F.2d 476, 478 n. 2 (3d Cir. 1990), but not when due to circumstances “attributable to the laches of the parties,” Mitchell v. Overman, 103 U.S. 62, 65, 26 L.Ed. 369 (1880). Here, Petitioner’s parents filed the 1990 Application with the INS, but neither they nor Petitioner followed up on it. The IJ determined that “however sympathetic [Petitioner’s] case may be,” she did not have the authority to adjudicate the application nunc pro tunc. We need not decide whether the IJ had such authority, because this is clearly a case where the laches is attributable at least in part to Petitioner. Petitioner did not inquire about the 1990 Application until he faced removal fourteen years later. Even assuming that the INS was to blame for part of the delay, the fact that the delay continued for fourteen years—from 1990 to 2004—is directly attributable to Petitioner. Nunc pro tunc relief is not appropriate under these circumstances.
IV.
We next address Petitioner’s alternative argument that he was not convicted of an aggravated felony. Under 8 U.S.C. § 1227(a)(2)(A)(iii), “[a]ny alien who is convicted of an aggravated felony at any time after admission is deportable.” An aggravated felony includes, inter alia, an attempt to commit “a theft offense (including receipt of stolen property) or burglary offense for which the term of imprisonment [is] at least one year.” 8 U.S.C. §§ 1101(a)(43)(G), (U). Petitioner does not dispute that his term of imprisonment was at least one year for his attempted robbery conviction, N.Y. Penal Law § 160.10, and for his shoplifting conviction, N.J. Stat. 2C:20-11. Petitioner also does not dispute the IJ’s conclusion that “[b]oth of these offenses are properly classified as theft offenses.” R. at 81. Instead, Petitioner argues that these offenses are not “crimes of violence” under 8 U.S.C. § 1101(a)(43)(F). Petitioner’s argument ignores the fact that conviction of a “theft offense” with a term of imprisonment of at least one year is an independent basis for removal under § 1101(a)(43)(G) irrespective of whether the offense was also a “crime of violence” under § 1101(a)(43)(F). Cf. Nugent v. Ashcroft, 367 F.3d 162, 179 (3d Cir.2004) (holding that the Pennsylvania theft by deception statute was both a “theft offense” under § 1101(a)(43)(G) and also “an offense that ... involves fraud or deceit” under § 1101(a)(43)(M)(i), and therefore subject to the requirements of both subsections, because “the state statute is bottomed on ‘fraud or deceit’ ”). Petitioner has not shown that the BIA erred in finding a statutory basis for his removal. The IJ and BIA correctly determined that he was convicted of an aggravated felony.
V.
We can quickly dispose of Petitioner’s remaining arguments concerning his *672application for asylum, withholding of removal, and request for protection under the CAT. Under 8 U.S.C. § 1158(b)(2)(A)(ii), an alien “convicted by a final judgment of a particularly serious crime” is not eligible to apply for asylum if the Attorney General determines that he “constitutes a danger to the community of the United States.” The BIA has interpreted this language to mean that a petitioner convicted of a “particularly serious crime” necessarily constitutes a danger to the community of the United States. Alaka v. Att’y Gen., 456 F.3d 88, 95 n. 11 (3d Cir.2006). The BIA implicitly applied that interpretation in this case. “Every Circuit Court that has considered the question has deferred to the BIA’s interpretation pursuant to Chevron, 467 U.S. at 842-45, 104 S.Ct. 2778.” Id. (citing cases but not reaching issue). We have yet to consider this question and do not do so now, as Petitioner challenges only whether he was convicted of a “particularly serious crime.” An alien convicted of an aggravated felony and sentenced to an aggregate term of imprisonment of at least five years, like Petitioner, is statutorily deemed to have committed a “particularly serious crime” in the context of asylum. 8 U.S.C. § 1158(b)(2)(B)(i).3 Thus, Petitioner is ineligible for asylum. Id.
Petitioner is also ineligible for withholding of removal. Aliens are disqualified from receiving withholding of removal if they have been convicted of a “particularly serious crime,” 8 U.S.C. § 1231 (b)(3)(B)(ii), but the definition of a “particularly serious crime” is different here than in the context of asylum. In the withholding context, aggravated felonies automatically constitute “particularly serious crimes” when the alien “has been sentenced to an aggregate term of imprisonment of at least 5 years.” 8 U.S.C. § 1231 (b)(3)(B)(iv). Here, those requirements are easily met as Petitioner received an aggregate of six to eight years of imprisonment for his aggravated felony convictions. He is therefore barred from withholding of removal. For the same reason, Petitioner is also barred from withholding of removal under the CAT.4 See 8 C.F.R. § 208.16(d)(2).
VI.
We are not unsympathetic to Petitioner’s plight, and his counsel has vigorously presented all the possible arguments on his behalf. Unfortunately for Petitioner, the relevant statutory language is clear, and we are obliged to follow its terms.
For the above-stated reasons, we will deny the petition for review.
. In 2003, the INS was abolished and the responsibility for enforcing the relevant immigration laws was transferred to the Bureau of Immigration and Customs Enforcement, which is within the Department of Homeland Security. See Homeland Security Act of 2002, Pub L. No. 107-296, §§ 441, 471, 116 Stat. 2135, 2192, 2205 (2002).
. Attempted robbery is a lesser-included offense of the substantive robbery crime with which he was charged in the indictment. The indictment characterized the offense as an "armed felony,” but the statute does not contain the "armed felony” language.
. The relevant statute provides that ''[f]or purposes of [determining eligibility for asylum], an alien who has been convicted of an aggravated felony shall be considered to have been convicted of a particularly serious crime." 8 U.S.C. § 1158(b)(2)(B)(i).
. In a reply brief, Petitioner argues for the first time that he should be granted a deferral of removal. This argument is waived. See United States v. Pelullo, 399 F.3d 197, 222 (3d Cir.2005) (citing "the well-established rule that the failure to identify or argue an issue in an opening brief constitutes waiver of that issue on appeal"); In re Surrick, 338 F.3d 224, 237 (3d Cir.2003) (recognizing that if a party fails to raise an issue in his opening brief, the issue is waived).
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OPINION OF THE COURT
FISHER, Circuit Judge.
Gary Lamar Denson (“Denson”) appeals from his jury conviction for the unlawful possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1). Denson argues that the Government failed to present sufficient evidence that he knowingly possessed a firearm. We -will affirm.
I.
We write exclusively for the parties, who are familiar with the factual context and legal history of this case. Therefore, we will set forth only those facts necessary to our analysis.
On July 1, 2005, at approximately 3:20 a.m., three narcotics detectives from the City of Pittsburgh Police Department were patrolling the Homewood neighborhood of Pittsburgh in an unmarked police car when one of the officers, Detective Philip Mercurio, saw Denson standing on the sidewalk in front of 615 Collier Street, about 100 to 120 feet away. Detective Mercurio, who was operating the police car, drove the vehicle closer to Denson. At a distance of approximately 75 feet, Detective Mercurio observed Denson lift *674up his shirt and tuck it behind what appeared to Detective Mercurio to be a black semiautomatic pistol. Denson then ran inside the row house at 615 Collier Street.
Detective Mercurio told the other two detectives what he had seen, and they decided to set up a surveillance of the house. When Denson returned to the sidewalk, Detective Mercurio, who was concealed behind a fence across the street roughly 35 feet from Denson, saw the same firearm sticking out of Denson’s waistband. Aided by a streetlight, Detective Mercurio identified the firearm as a Colt style semi-automatic pistol. Detective Mercurio later testified that he was familiar with the Colt pistol’s appearance due to his experience working with firearms and his personal ownership of a Colt pistol for several years. Detective Mercurio also testified that Denson’s white t-shirt provided a good background for viewing the firearm.
After calling additional officers for backup, Detectives Mercurio and Robert Kavals, another one of the three original detectives, attempted to seize Denson; however, when Detective Kavals identified himself as a police officer, Denson fled inside the house and locked the door. Approximately 10 seconds later, a woman standing on the porch used a key to reopen the door. Upon entering, Detectives Mercurio and Kavals immediately observed Denson walk out of the kitchen and into the living room, where four or five other individuals sat without moving. Detective Kavals patted Denson down and, after receiving permission from the owner of the residence to search the kitchen, found a loaded Colt .45 semi-automatic pistol inside the microwave. Detective Mercurio identified the firearm as the one he had seen on Denson earlier, and Detective Kavals directed another officer to arrest Denson. Thereafter, the detectives determined that Denson did not have a permit for the pistol and that the pistol had been reported stolen. The firearm was not tested for fingerprints.
Denson was subsequently charged with a single count of unlawful possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1). After a jury trial in the United States District Court for the Western District of Pennsylvania, a verdict was entered against Denson on January 31, 2007. The District Court sentenced Denson to 110 months of imprisonment, followed by three years of supervised released. Denson filed a timely appeal.
II.
The District Court had jurisdiction under 18 U.S.C. § 3231, and we have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742. “We review a defendant’s challenge to the sufficiency of evidence in the light most favorable to the government.” United States v. Wise, 515 F.3d 207, 214 (3d Cir.2008). We will affirm a verdict “if a rational trier of fact could have found the defendant guilty beyond a reasonable doubt and if the verdict is supported by substantial evidence.” United States v. Bobb, 471 F.3d 491, 494 (3d Cir.2006).
III.
Denson’s sole argument on appeal is that the Government failed to produce sufficient evidence to support his conviction under 18 U.S.C. § 922(g)(1). To show that Denson was a felon in possession of a firearm in violation of § 922(g)(1), the Government had to establish the following elements beyond a reasonable doubt: (1) that Denson had been convicted of a crime punishable by more than one year of imprisonment; (2) that Denson knowingly possessed a firearm; and (3) that the firearm had passed in interstate commerce. *675United States v. Dodd, 225 F.3d 340, 344 (3d Cir.2000). Denson concedes the first and third elements, and argues only that the Government failed to show that he knowingly possessed a firearm.
Denson contends that the jury could not have reasonably concluded that the Colt .45 semi-automatic pistol found in the microwave was the same object that Detective Mercurio had previously seen on Denson’s waistband. Denson argues that Detective Mercurio’s testimony was unreliable because his two brief observations were made at night and from far distances — approximately 75 feet and 35 feet — and because the object was partially obstructed by Denson’s waistband. In addition, Denson notes that there was no testimony of any distinguishing marks or features that would have aided Detective Mercurio in identifying the firearm and that no fingerprints were collected to confirm that Denson had touched the firearm that Detective Kavals recovered from the microwave.
Denson’s arguments challenge the credibility of Detective Mercurio’s testimony. However, because “[cjredibility determinations are the unique province of a fact finder .... [wjhere the record supports a credibility determination, it is not for an appellate court to set it aside.” United States v. Kole, 164 F.3d 164, 177 (3d Cir.1998). Instead, we review the evidence in the light most favorable to the government. Wise, 515 F.3d at 214.
Here, a reasonable jury could have concluded that the object Detective Mercurio observed on Denson’s waistband was the same Colt .45 semi-automatic pistol that Detective Kavals later found in the microwave. Detective Mercurio testified that he twice observed Denson with a black semiautomatic pistol in his waistband. Aided by a streetlight, the color contrast of Den-son’s white t-shirt, and his familiarity with Colt pistols, Detective Mercurio also testified that he was able to identify the firearm as a Colt pistol. Both Detectives Mercurio and Kavals testified that Denson fled inside the residence at 615 Collier Street when the detectives approached him. Finally, Detective Kavals testified that he uncovered a loaded Colt .45 semiautomatic pistol from inside the kitchen microwave just moments after Denson exited the kitchen, when the other individuals inside the residence sat without moving in the living room. Therefore, taking the evidence in its entirety, the jury could have reasonably concluded that Denson had attempted to evade the detectives by hiding the firearm in the microwave.
IV.
In conclusion, we find that the evidence was sufficient for a rational jury to find beyond a reasonable doubt that Denson knowingly possessed a firearm in violation of 18 U.S.C. § 922(g)(1). Accordingly, we will affirm Denson’s conviction.
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OPINION OF THE COURT
HARDIMAN, Circuit Judge.
Brian Barner appeals the District Court’s partial denial of his motion for sentence reduction pursuant to 18 U.S.C. § 3582(c). We will affirm.
I.
Because we write for the parties, we recount only those facts necessary to our decision.
Barner pleaded guilty in 1998 to conspiracy to distribute and possess with intent to *680distribute more than five kilograms of cocaine in violation of 21 U.S.C. § 846, and possession with intent to distribute more than 300 grams of cocaine in violation of 21 U.S.C. § 841(a)(1). Barner’s offense level was 40 and his criminal history category was IV, yielding a Guidelines range of 360 months to life imprisonment. The District Court sentenced Barner to 420 months imprisonment.
On November 1, 2007, the Sentencing Commission promulgated Amendment 706, which amended the Drug Quantity Table in USSG § 2Dl.l(c). Amendment 706 provides a two-level reduction in base offense level for certain crack-cocaine offenses. The Commission made this amendment retroactive, effective March 3, 2008. See U.S. Sentencing Guidelines Manual app. C, amend. 713 (2008).
After Amendment 706 was made retroactive, Barner moved for a reduced sentence pursuant to 18 U.S.C. § 3582(c)(2). In addition to arguing that his revised offense level should be 38, Barner sought to relitigate his criminal history calculation, arguing that the District Court miscalculated his criminal history during the initial sentencing. The District Court found that it lacked authority to reconsider Barner’s criminal history calculation, but recalculated his Guidelines range to be 324 to 405 months pursuant to his reduced offense level. The court then resentenced Barner to 378 months imprisonment.
Barner now appeals, arguing that the District Court misconstrued its authority to reconsider his criminal histoiy category and failed to meaningfully consider the factors listed in 18 U.S.C. § 3553(a) during his resentencing.1
II.
We begin with Barner’s assertion that the District Court erroneously concluded that it lacked authority to reconsider the calculation of his criminal history category. We review de novo a district court’s interpretation of statutory requirements, including the Sentencing Guidelines. United States v. Williams, 344 F.3d 365, 377 (3d Cir.2003).
Barner argues that the District Court erred during his initial sentencing when it included two retail theft convictions and determined his criminal history to be category IV. Although Barner’s counsel did not object to this calculation, he now argues in his § 3582 motion that this calculation was erroneous and that his criminal histoiy should have been category III.
Pursuant to § 3582(c), sentencing courts are authorized to modify a previously imposed sentence of imprisonment only under certain enumerated circumstances. United States v. Higgs, 504 F.3d 456, 461 (3d Cir.2007). One of those circumstances is provided in § 3582(c)(2), which authorizes district courts to modify “a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission.... ” The Sentencing Commission has explained: “[i]n a case in which a defendant is serving a term of imprisonment, and the guideline range applicable to that defendant has subsequently been lowered as a result of an amendment to the Guidelines Manual ... the court may reduce the defendant’s term of imprisonment as provided by 18 U.S.C. § 3582(c)(2).” USSG § lB1.10(a)(l). Therefore, in Barner’s ease, the District Court was entitled to revisit his sentence in light of Amendment 706, which reduced *681the offense level for his offense of conviction.
The court’s authority to revisit a sentence previously imposed is not unlimited, however. The Guidelines make clear that “proceedings under 18 U.S.C. § 3582(c)(2) ... do not constitute a full resentencing of the defendant.” USSG § lB1.10(a)(3); see also United States v. Faulks, 201 F.3d 208, 210 (3d Cir.2000) (distinguishing between a full resentencing and a proceeding under 18 U.S.C. § 3582(c)(2)). Instead, sentencing courts are instructed to “substitute only the [retroactive] amendments ... for the corresponding guideline provisions that were applied when the defendant was sentenced and ... leave all other guideline application decisions unaffected.” USSG § 1B1.10(b)(1) (emphasis added); see United States v. McBride, 283 F.3d 612, 615 (3d Cir.2002) (“only the retroactive amendment is to be considered at a resentencing under § 3582”).
Thus, in Barner’s case, the District Court was limited to ascertaining Barner’s Guidelines range had Amendment 706 been in place during his initial sentencing. The District Court lacked authority to reconsider its initial criminal history calculation or any other component of Barner’s initial sentence that was not affected by a retroactive amendment. Cf. United States v. Mateo, 560 F.3d 152, 156 (3d Cir.2009) (holding that the district court lacked authority to revisit the application of the career offender enhancement in a § 3582 motion because that enhancement was not affected by a retroactive amendment). Accordingly, the District Court did not err in refusing to consider Barner’s arguments with regard to his initial criminal history calculation.
III.
Barner also argues that the District Court failed to properly consider the § 3553(a) factors when it imposed a sentence of 378 months imprisonment, which was sixteen percent above the midpoint of his Guidelines range. See United States v. Clark, 563 F.3d 722, 724 (8th Cir.2009) (“the relevant § 3553(a) factors still guide the decision to modify a sentence and the selection of an appropriate, amended sentence within the new range”). We review this claim for abuse of discretion, Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007), and must ensure that the District Court committed no significant procedural error, such as failing to consider the § 3553(a) factors. United States v. Wise, 515 F.3d 207, 217 (3d Cir.2008).
Though motions for sentence reduction under § 3582 do not constitute “full resentencings,” USSG § lB1.10(a)(3), sentencing courts still must apply the § 3553(a) factors when determining a defendant’s modified sentence. 18 U.S.C. § 3582(c)(2) (“the court may reduce the term of imprisonment, after considering the factors set forth in section 3553(a) to the extent that they are applicable”); see also USSG. § 1B1.10 cmt. n. l(B)(i) (“Consistent with § 3582(c)(2), the court shall consider the factors set forth in 18 U.S.C. § 3553(a) in determining: (I) whether a reduction in the defendant’s term of imprisonment is warranted; and (II) the extent of such reduction.... ”). Barner alleges that the District Court did not properly consider the § 3553(a) factors because it merely “incorporate[ed] by reference” the analysis it undertook at the initial sentencing hearing in 1998 without discussing how each § 3553(a) factor informed the sentence.
Barner’s allegations are unsupported by the record. We disagree that the District Court’s review of the § 3553(a) factors consisted of a “mere listing” of the factors and an “incorporation by reference” of the court’s 1998 sentencing hearing. Although *682the District Court referenced the 1998 sentencing hearing, it did not rely upon that hearing to the extent Barner alleges. The District Court discussed both the nature and circumstances of Burner's offense— which involved a substantial amount of drugs as well as an attempt to recruit another person to execute two witnesses in his case — as well as Banner’s history and characteristics.2 The District Court cited the § 3558(a) factors, acknowledged that it had “thoroughly reviewed” the sentencing briefs submitted by the parties, and discussed the sentences recommended by the respective parties. As the Supreme Court acknowledged in Rita v. United States, 551 U.S. 338, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007), “The appropriateness of brevity or length, conciseness or detail, when to write, what to say, depends upon circumstances .... [S]ometimes a judge rel[ies] upon context and the parties’ prior arguments to make the reasons clear. The law leaves much, in this respect, to the judge’s own professional judgment.” Id. at 356, 127 S.Ct. 2456. Moreover, a within-Guidelines sentence typically will require less justification than a sentence outside the Guidelines. Id. at 347, 127 S.Ct. 2456. Because we find that “the record as a whole reflects rational and meaningful consideration of the factors enumerated in 18 U.S.C. § 3553(a),” United States v. Grier, 449 F.3d 558, 574 (3d Cir.2006), we are convinced the District Court did not abuse its discretion in resentencing Barner.
IV.
Finally, Barner challenges the District Court’s use of a drug amount that was in excess of the amount to which he pleaded in determining his sentence. Barner argues that the District Court violated his Fifth and Sixth Amendment rights because the drug amount used in sentencing was neither charged in the indictment nor admitted at his guilty plea or proved to a jury beyond a reasonable doubt. Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). As Barner concedes, this argument is foreclosed by the Supreme Court’s holding in Almendarez-Torres v. United States, 523 U.S. 224, 235, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), and our decision in United States v. Coleman, 451 F.3d 154, 159-60 (3d Cir.2006).
V.
Given the limitations on the District Court’s authority prescribed by § 3582(c) and the Sentencing Commission, the District Court properly confined its review of Barner’s sentence. After calculating the appropriate Guidelines range, the court sufficiently discussed the § 3553(a) factors in sentencing Barner to a within-Guidelines sentence of 378 months imprisonment. Accordingly, we will affirm.
. The District Court had jurisdiction to review Barner's motion for sentence modification pursuant to 18 U.S.C. § 3231 and we have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742.
. We note that the same judge presided over both the 1998 and 2008 sentencing hearings and displayed a familiarity with the defendant.
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OPINION OF THE COURT
FISHER, Circuit Judge.
Sergio Acuna-Ramirez pleaded guilty to one count of unlawful reentry in violation of 8 U.S.C. § 1326 for which he was sentenced to a twenty-four month term of imprisonment followed by deportation and two years of supervised release. On appeal, Acuna-Ramirez challenges the overall reasonableness of his sentence. For the reasons set forth below, we will affirm.
I.
We write exclusively for the parties, who are familiar with the factual context and legal history of this case. Therefore, we will set forth only those facts necessary to our analysis.
The circumstances giving rise to Mr. Acuna-Ramirez’s conviction stem from a July 13, 2008, police stop in Ohio for traffic violations. Acuna-Ramirez, a citizen of Mexico, gave the police false identification and admitted that he did not have a work visa or green card. Having previously *684been deported, he was subsequently charged with unlawful reentry in violation of 8 U.S.C. § 1326.
Acuna-Ramirez pleaded guilty as charged. Prior to sentencing, he submitted material to the District Court explaining his reentry. The defendant noted that his family faced a desperate financial situation in Mexico as a result of expenses incurred caring for his wife’s disabled sister. Unable to secure full-time work, he returned to the United States hoping to find sufficient income to assist his family with his sister-in-law’s medical expenditures.
By the date of the sentencing hearing Acuna-Ramirez had already served more than six months in custody. In calculating his Guidelines sentence, the District Court made initial findings that the total offense level was seventeen, his criminal history category was I, and thus the corresponding Guidelines range was twenty-four to thirty months of incarceration. While the base offense level for unlawful reentry is eight, the defendant had been previously convicted of a felony drug offense in Nevada, which added several levels to the base offense level.
Acuna-Ramirez argued for a downward variance from the Guidelines sentence because of his family’s circumstances. In particular, he argued that his sister-in-law’s medical condition constituted a mitigating factor that justified a variance so he could return home to Mexico and assist his family with the financial burden. Although the District Court was presented with several alternatives to the Sentencing Guidelines and recognized that Acuna-Ramirez helped to offset the expenses of his sister-in-law’s care, the Court nevertheless denied a variance from the advisory range. As a result, the Court imposed a twenty-four month term of imprisonment followed by deportation and two years of supervised release. Acuna-Ramirez timely appealed from his judgment of sentence.
II.
The District Court had jurisdiction pursuant to 18 U.S.C. § 3231, and we have jurisdiction to review the District Court’s judgment of sentence pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742. We review sentences for both procedural and substantive reasonableness under an abuse of discretion standard pursuant to Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007). See also United States v. Tomko, 562 F.3d 558, 567 (3d Cir.2009) (en banc) (“The abuse-of-discretion standard applies to both our procedural and substantive reasonableness inquiries.”). To this end, “[w]e must first ensure that the district court committed no significant procedural error in arriving at its decision” and, if it has not, “we then review the substantive reasonableness of the sentence.” United States v. Wise, 515 F.3d 207, 217-18 (3d Cir.2008). “At both stages of our review, the party challenging the sentence has the burden of demonstrating unreasonableness.” Tomko, 562 F.3d at 567.
III.
On appeal, Acuna-Ramirez raises two challenges to his sentence. First, he asserts that the District Court erred when it rejected the defendant’s motion for a variance under 18 U.S.C. § 3553(a) in light of Acuna-Ramirez’s family circumstances. Second, he makes a substantive reasonableness argument by asserting that the imposition of a twenty-four month sentence was unreasonable and greater than necessary to comply with the purposes of sentencing. We will address each argument in turn.
*685A.
Acuna-Ramirez contends that the District Court erred by employing the wrong standard in rejecting his argument for a downward variance, thus imposing a procedurally unreasonable sentence. The Government responds that the District Court undertook all three of the requisite steps prescribed by this court in United States v. Gunter, 462 F.3d 237, 247 (3d Cir.2006), thereby securing the procedural reasonableness of the sentence.
Our post-Booker precedent requires district courts to engage in a three-step sentencing process that necessitates the following: (1) calculating a defendant’s Guidelines sentence precisely as the court would have before Booker; (2) formally ruling on any departure motions; and (3) exercising discretion by considering the relevant 18 U.S.C. § 3553(a) factors. Id. To be procedurally reasonable, a sentence must reflect a district court’s meaningful consideration of the factors set forth at § 3553(a). United States v. Lessner, 498 F.3d 185, 204 (3d Cir.2007).
The record here more than adequately demonstrates the District Court’s meaningful consideration of the pertinent factors. In response to Acuna-Ramirez’s argument that his extenuating family circumstances warranted varying his sentence, the Court “reviewed carefully the sad plight” of his sister-in-law and “cranked that into [its] sentencing calculous [sic].” (App.79.) Moreover, the District Court noted that the defendant’s contribution toward ameliorating his family’s economic situation was “a factor in the sentencing calculous [sic].” (App.80.) The Court also considered, “in addition to the advisory guideline range, various sentencing factors under § 3553(a).” (App.78.) This included the seriousness of the crime, Acuna-Ramirez’s use of false identification, his criminal history, the need for the sentence imposed to provide adequate deterrence and promote respect for the law, and the need to avoid unwarranted sentence disparities among similarly situated defendants. (App.78-79.) Therefore, the record is clear that the District Court considered Acuna-Ramirez’s argument that he deserved a variance but was nevertheless unpersuaded.
Acuna-Ramirez takes exception to the District Court’s use of the terms “extraordinary” and “unusual” at sentencing, questioning whether the Court treated the Guidelines range as mandatory — as opposed to merely advisory — based upon its use of pre-Booker language. That argument over semantics, however, is without merit. The District Court clearly states that it was required to consider the § 3553(a) factors “in addition to the advisory guidelines.” (App.78.) (emphasis added).
In sum, Acuna-Ramirez has failed to meet his burden of demonstrating unreasonableness. Because there is no question that the Court acknowledged the advisory nature of the Guidelines and took the pertinent § 3553(a) factors into account before imposing the sentence, we cannot conclude that the sentence was procedurally unreasonable.
B.
Acuna-Ramirez also contends, albeit indirectly, that the District Court imposed a substantively unreasonable sentence by including a term of imprisonment greater than necessary to achieve the purposes of sentencing set forth in 18 U.S.C. § 3553(a). The Government asserts that Acuna-Ramirez waived the argument that his sentence was substantively unreasonable and that such a claim would fail anyway since the District Court carefully explicated how it arrived at the bottom of the *686recommended Guidelines range consistent with the § 3553(a) factors. We need not address the Government’s first argument since the latter prevails.
In addition to being procedurally reasonable, a sentence must also be substantively reasonable. Lessner, 498 F.3d at 204. We have explained that “[f]or a sentence to be substantively reasonable, a district court must apply the § 3553(a) factors reasonably to the circumstances of the case.” Id. (quoting United States v. Cooper, 437 F.3d 324, 330 (3d Cir.2006)). “The pertinent inquiry is ‘whether the final sentence, wherever it may lie within the permissible statutory range, was premised upon appropriate and judicious consideration of the relevant factors.’ ” Id. (quoting United States v. Schweitzer, 454 F.3d 197, 204 (3d Cir.2006)). Since we “recognize that ‘reasonableness is a range, not a point,’” Wise, 515 F.3d at 218 (quoting Cooper, 437 F.3d at 332 n. 11), we will affirm “[a]s long as a sentence falls within the broad range of possible sentences that can be considered reasonable in light of the § 3553(a) factors.” Wise, 515 F.3d at 218.
The record reflects the District Court’s reasonable application of the § 3553(a) factors to the circumstances of this case. The Court provided an analysis of its consideration of the relevant § 3553(a) factors and explained what influenced its sentencing decision. The District Court said that the defendant’s sister-in-law’s health condition was “[s]ad to be sure” and “cranked that into [its] sentencing calculous [sic].” (App.79-80.) But the Court also adequately discussed most, if not all, of the other § 3553(a) factors, as noted above. (App.78-79.) While the District Court may not have given Acuna-Ramirez’s mitigating factor the weight he contends it deserved, that does not render his sentence unreasonable. See Lessner, 498 F.3d at 204. The Court here fashioned a Guidelines sentence based on “appropriate and judicious consideration of the relevant factors,” see id., and imposed a bottom-of-the-range sentence. Thus, we cannot conclude that Acuna-Ramirez’s sentence was substantively unreasonable.
IV.
For the foregoing reasons, we will affirm the judgment of the District Court.
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OPINION OF THE COURT
HARDIMAN, Circuit Judge.
Christopher Ross appeals the District Court’s grant of the Government’s motion for an upward departure, and its imposition of an above-Guidelines sentence of 105 months imprisonment. For the reasons that follow, we will affirm.
I.
Because we write for the parties, we recount only those facts necessary to our decision.
Ross pleaded guilty to one count of causing interstate travel to occur in connection with an unlawful act — specifically heroin distribution — in violation of 18 U.S.C. § 1952(a)(3); and one count of conspiracy to introduce contraband into a prison, in violation of 18 U.S.C. § 2113(a). As part *688of his guilty plea, Ross agreed that “[s]ome quantity of the heroin in question was distributed to inmate Jeremy Lyons who subsequently died from a heroin overdose.” The presentence report (PSR) calculated Ross’s offense level to be 14, and his criminal history category to be VI, resulting in an advisory Guidelines imprisonment range of 37 to 46 months. The Government then filed a motion for an upward departure pursuant to § 5K2.1 of the United States Sentencing Guidelines (USSG), which states that “[i]f death resulted, the court may increase the sentence above the authorized guidelines range.” The District Court granted this motion, relying on USSG § 5K2.0, USSG § 5K2.1, and United States v. Robinson, 167 F.3d 824 (3d Cir.1999).
II.
We exercise plenary review over a district court’s decision to grant an upward departure, and review the reasonableness of the degree of departure for abuse of discretion. United States v. Yeaman, 194 F.3d 442, 456 (3d Cir.1999).
A.
Under USSG § 5K2.0, upward departures are appropriate in
circumstances that the Commission may have not adequately taken into consideration in determining the applicable guideline range.... If any such circumstance is present in the case and has not adequately been taken into consideration in determining the applicable guideline range, a departure consistent with 18 U.S.C. § 3553(b) and the provisions of this subpart may be warranted.
One of the circumstances identified in § 5K2.0 that would warrant a departure is the death of an individual, which is addressed in § 5K2.1 as follows:
If death resulted, the court may increase the sentence above the authorized guideline range.... The sentencing judge must give consideration to matters that would normally distinguish among levels of homicide, such as the defendant’s state of mind and the degree of planning or preparation. Other appropriate factors are whether multiple deaths resulted, and the means by which life was taken. The extent of the increase should depend on the dangerousness of the defendant’s conduct, the extent to which death or serious injury was intended or knowingly risked, and the extent to which the offense level for the offense of conviction, as determined by the other Chapter Two guidelines, already reflects the risk of personal injury. For example, a substantial increase may be appropriate if the death was intended or knowingly risked or if the underlying offense was one for which base offense levels do not reflect an allowance for the risk of personal injury, such as fraud.
Pursuant to the Guidelines sections quoted above, district courts have discretion to grant upward departures when death results from the underlying crime. In Robinson, we explained a district court’s ability to grant an upward departure, stating: “It is obvious that Congress intended ... that the 20-year mandatory minimum would apply if death or serious bodily injury resulted from the use of the substance without regard for common law proximate cause concepts.” Robinson, 167 F.3d at 831.
Here, Ross admitted in his plea agreement that his conduct caused Lyons’s death. That admission is all USSG §§ 5K2.0 and 5K2.1 require to permit the upward departure. Furthermore, our precedent in Robinson shows that the Government need not prove proximate cause *689in order for the upward departure to apply, so long as a causal connection is shown. Therefore, we hold that the District Court did not commit legal error when it granted the Government’s upward departure motion.
B.
Next, we must consider whether the extent of the District Court’s upward departure was reasonable. We have stated that when determining the reasonableness of the extent of a departure, sentencing courts should look to analogous sentencing Guideline provisions. United States v. Baird, 109 F.3d 856, 872 (3d Cir.1997).
Ross pleaded guilty to causing interstate travel in aid of an unlawful act. His base offense was 12 because the underlying substantive offense was distributing less than 5 grams of heroin. USSG § 2Dl.l(c)(14). A person found to have distributed less than 5 grams of heroin which results in the death of an individual would receive a base offense level of 38. USSG § 2D1.1(a)(2). The difference between these two offenses is 26 levels. Although Ross was not convicted of distributing heroin under 21 U.S.C. § 841, the Guidelines suggest that an offense level of 38 should be used on these facts. Additionally, under the Guidelines, a substantial upward departure is warranted because the Guideline range for the crime to which Ross pleaded guilty — causing interstate travel in aid of an unlawful act — does not account for the risk of personal injury. See USSG § 5K2.1.
The District Court found that a departure of 26 levels would be “extreme and unwarranted.” The total statutory maximum for the two offenses to which Ross pleaded guilty was 10 years. In deciding to apply an 8-level enhancement, the District Court relied on an analogous case in which the Court of Appeals for the Fifth Circuit affirmed an 8-level enhancement. See United States v. Ihegworo, 959 F.2d 26, 28 (5th Cir.1992). Therefore, the District Court did not err when it imposed an 8-level upward departure.
C.
Ross also argues that his sentence is unreasonable under § 3553(a) because he received 105 months imprisonment while his co-defendant, Mark Brown, received a sentence of only 37 months imprisonment. Section 3553(a)(6) requires a sentencing judge to consider “the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct.” Ross argues that his sentence is unreasonable because it is almost three times longer than Brown’s sentence despite the fact they pleaded guilty to similar conduct. Our review of the record leads us to conclude that Ross’s premise is flawed; he and Brown were neither convicted of similar behavior nor similarly situated. First, Ross was the coordinator of the conspiracy. Brown was paid a fee of only $200 for his efforts, whereas Ross kept the remaining profits. Second, Brown did not sell any heroin to Lyons, whereas Ross admitted to selling Lyons the heroin that caused his death. Finally, and perhaps most significantly, Brown received a downward departure for his substantial assistance to the Government, a departure to which Ross was not entitled. For these reasons, we find nothing unreasonable in the District Court’s judgment that Ross should be sanctioned more harshly than his co-Defendant.
III.
For the aforementioned reasons, we will affirm the judgment of the District Court.
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SUMMARY ORDER
Petitioner Xiu Min Chen, a native and citizen of the People’s Republic of China, seeks review of a July 17, 2008 order of the BIA affirming the October 26, 2007 decision of Immigration Judge (“IJ”) Alan Vomacka denying her application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Xiu Min Chen, No. A200-*555115-825 (B.I.A. July 17, 2008), aff'g No. A200-115-825 (Immig. Ct. N.Y. City Oct. 26, 2007). We assume the parties’ familiarity with the underlying facts and procedural history in this case.
We review the agency’s factual findings, including adverse credibility findings, under the substantial evidence standard. 8 U.S.C. § 1252(b)(4)(B); see also Corovic v. Mukasey, 519 F.3d 90, 95 (2d Cir.2008). For asylum applications governed by the REAL ID Act of 2005, the agency may, considering the totality of the circumstances, base a credibility finding on an asylum applicant’s demeanor, the plausibility of his or her account, and inconsistencies in his or her statements, without regard to whether they go “to the heart of the applicant’s claim.” 8 U.S.C. § 1158(b)(l)(B)(iii). “We defer ... to an IJ’s credibility determination unless, from the totality of the circumstances, it is plain that no reasonable fact-finder eould make such an adverse credibility ruling.” Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir.2008). We review de novo questions of law and the application of law to undisputed fact. See, e.g., Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.2008).
Substantial evidence supports the IJ’s adverse credibility determination.2 See Corovic, 519 F.3d at 95. In her brief, Chen does not challenge the IJ’s adverse credibility determination to the extent it was based on: (1) her demeanor, which the IJ found was not indicative of someone testifying from her own experiences; (2) the implausibility of her testimony that the government would issue her a certificate confirming a forced abortion; (3) the implausibility of her testimony that she would have a smuggler obtain a Chinese passport in her own name at a time when the government was allegedly seeking to punish her; (4) the implausibility of her claim that the government would issue fine notices to her and her boyfriend at their parents’ homes when Chen testified that the authorities had located them at their own apartment; (5) his finding that it was implausible that Chen’s boyfriend would list his parents’ address on the envelope in which he submitted his letter in support of her asylum application, thereby placing his parents in danger; (6) the implausibility of Chen’s testimony that her boyfriend had to hide even though his mother had paid the fine imposed upon him; and (7) the implausibility of Chen’s testimony that her family would pay to have her smuggled to the United States instead of paying the much lower amount of the family planning fine. As Chen fails to challenge those findings before this Court, they stand as valid bases for the IJ’s adverse credibility determination. See Shunfu Li v. Mukasey, 529 F.3d 141, 146 (2d Cir.2008).
Although Chen challenges other of the IJ’s findings, we need not review her arguments because the findings she fails to challenge alone support the IJ’s credibility determination. See 8 U.S.C. § 1252(b)(4)(B). Therefore, the IJ properly denied her application for asylum and withholding of removal where the only evidence that she would be persecuted depended on her credibility. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.2006).
Chen has failed to meaningfully challenge before this Court the agency’s denial of CAT relief based on her illegal departure from China. Thus, we deem any such challenge waived. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 n. 1, 545 n. 7 *556(2d Cir.2005) (finding that a petitioner waived any challenge to the IJ’s well-founded fear finding where the petitioner “devotes only a single conclusory sentence to the argument”).
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
. We reject the government's assertion that Chen waived any challenge to the IJ’s adverse credibility determination by failing to address the REAL ID Act amendments to the INA. Cf. Yueqing Zhang v. Gonzales, 426 F.3d 540, 545 n. 7 (2d Cir.2005); Balachova v. Mukasey, 547 F.3d 374, 380 (2d Cir.2008).
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SUMMARY ORDER
Asif Hamid, a native and citizen of Pakistan, seeks review of a July 14, 2008, order of the BIA affirming the January 18, 2007, decision of Immigration Judge (“IJ”) George T. Chew, which denied his application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”).1 In re Asif Hamid, et al., Nos. A098 422 886/887/888/889/890 (B.I.A. July 14, 2008), aff'g Nos. A098 422 886/887/888/889/890 (Immig. Ct. N.Y. City Jan. 18, 2007). We assume the parties’ familiarity with the underlying facts and procedural history in this case.
We review the agency’s factual findings, including adverse credibility determinations, under the substantial evidence standard. 8 U.S.C. § 1252(b)(4)(B); see also Manzur v. U.S. Dep’t of Homeland Sec., 494 F.3d 281, 289 (2d Cir.2007). For asylum applications governed by the REAL ID Act, the agency may, considering the totality of the circumstances, base a credibility finding on an asylum applicant’s “demeanor, candor, or responsiveness,” the plausibility of his or her account, and inconsistencies in his or her statements, without regard to whether they go “to the heart of the applicant’s claim.” See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir.2008).
In finding Hamid not credible, the IJ reasonably relied on: (1) Hamid’s failure to provide consistent dates regarding when he joined the PPP; and (2) the ambiguity in Hamid’s testimony regarding whether he had ever seen a First Information Report (“FIR”) issued against him in 1991 and his failure to bring this FIR to the attention of the court. Although Ham-id offered explanations for both these inconsistencies, no reasonable fact-finder would be compelled to credit them. See Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir.2005) (finding that if the applicant offers an explanation for inconsistent testimony, the agency need not credit that explanation unless the explanation would compel a reasonable fact-finder to do so).
*558The IJ also reasonably found implausible that Pakistani authorities would still be interested in Hamid despite his departure fifteen years ago. Although a finding of implausibility must not be based on flawed reasoning, “bald” speculation, or conjecture, see Ming Xia Chen v. BIA, 435 F.3d 141, 146 (2d Cir.2006), we will not disturb an implausibility finding if it is “tethered to record evidence, and there is nothing else in the record from which a firm conviction of error could properly be derived.” See Wensheng Yan v. Mukasey, 509 F.3d 63, 67 (2d Cir.2007); see also Siewe v. Gonzales, 480 F.3d 160, 169 (2d Cir.2007). Here, the IJ’s implausibility finding was not erroneous because it was: (1) tethered to record evidence regarding the prominence of the PPP party in Pakistani politics; see Wensheng Yan, 509 F.3d at 67 (finding implausibility findings to be reasonable when they are tethered to the record evidence); (2) supported by the common sense inference that, absent evidence indicating otherwise, authorities will be much less likely to pursue a person who has been away for over fifteen years; see Siewe, 480 F.3d at 168-69 (finding that speculation inhered in inference is not bald if based on even a single fact in the record viewed in light of common sense and ordinary experience); and (3) reasonably based upon the conclusion that if one has returned to the country of alleged persecution in the past without incident, the same is likely to occur upon future return trips, see Wensheng Yan, 509 F.3d at 68 n. 2 (finding return trips to a country of persecution support an IJ’s implausibility finding).
Additionally, contrary to Hamid’s argument, the IJ did not err in according little evidentiary weight to an “FIR” allegedly issued against him in 2005 because Hamid mistakenly testified that it was issued in 2004 and his brother’s letter failed to mention, as Hamid testified, that a hefty bribe was paid in order to obtain a copy. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 342 (2d Cir.2006) (finding that the weight afforded to the applicant’s evidence in immigration proceedings lies largely within the discretion of the IJ).
Ultimately, because no reasonable fact-finder would be compelled to conclude to the contrary, the agency’s adverse credibility determination was supported by substantial evidence. See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 165-66. Thus, the agency’s denial of Hamid’s application for asylum was proper. See 8 C.F.R. § 208.13(b). Because Hamid based his claims for withholding of removal and CAT relief on the same factual predicate as his asylum claim, and the IJ found that this evidence lacked credibility, those claims necessarily fail. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.2006); Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 523 (2d Cir.2005).
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
. Asif Hamid was the lead petitioner before the agency. Accordingly, we refer exclusively to him throughout. His spouse, Rashida Arshi, and children, Wasif Hamid, Aisha Hamid, and Hariss Hamid, were included as derivative applicants on his asylum application and appear as petitioners in this Court.
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SUMMARY ORDER
Petitioner Sheng Jie Dong, a native and citizen of the People’s Republic of China, seeks review of a November 28, 2007 order of the BIA denying his motion to reopen. In re Sheng Jie Dong, No. A073 077 867 (B.I.A. Nov. 28, 2007). We assume the parties’ familiarity with the underlying facts and procedural history in this case.
We review the BIA’s denial of a motion to reopen for abuse of discretion. See Ke Zhen Zhao v. U.S. Dep’t of Justice, 265 F.3d 83, 90 (2d Cir.2001). A motion to reopen must be filed no later than 90 days after the final administrative decision is rendered in the proceedings that the applicant seeks to reopen. 8 U.S.C. § 1229a(c)(7); 8 C.F.R. § 1003.2(c)(2). In this case, Dong did not file the underlying motion to reopen until more than eight years after the entry of the final order in his proceedings, and there is no dispute that his motion was untimely. However, when a movant raises a claim of ineffective assistance of counsel, the filing deadline may, under certain conditions, be equitably tolled. See Jin Bo Zhao v. INS, 452 F.3d 154, 156-59 (2d Cir.2006). The filing deadline may also be excused when the movant submits evidence demonstrating changed country conditions materially affecting his eligibility for relief. See 8 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3)(ii).
To merit equitable tolling, a movant alleging ineffective assistance of counsel must demonstrate that he pursued his case with due diligence during the period of time for which he seeks tolling. See Iavorski v. I.N.S., 232 F.3d 124, 134-35 (2d Cir.2000). “[N]o matter how egregiously ineffective counsel’s assistance may have been, an alien will not be entitled to equitable tolling unless he can affirmatively demonstrate that he exercised reasonable due diligence.” See Cekic v. INS, 435 F.3d 167, 170 (2d Cir.2006). In this case, the BIA did not abuse its discretion when it found that Dong did not exercise the requisite due diligence. Dong knew, or should have known, of his former counsel’s alleged ineffective assistance by May 28, 1996, the date of the hearing at which Dong withdrew his asylum application and instead requested voluntary departure, allegedly under duress and at the urging of his former counsel. See Iavorski, 232 F.3d at 134. However, Dong did not raise his ineffective assistance claim for the first time until January 2004, more than seven years later, when he filed his first motion to reopen with the Immigration Judge. Dong has offered no explanation for this delay. Given Dong’s lack of diligence, the BIA did not err in declining to equitably toll the deadline for his second motion to reopen based on ineffective assistance of counsel. See id.
In addition, the BIA did not abuse its discretion in finding that the documentation Dong submitted with his motion did not suffice to establish changed country conditions in China excusing the untimeliness of his motion to reopen. See 8 U.S.C. § 1229a(c)(7)(C)(ii). We have previously reviewed the BIA’s consideration of Dong’s evidence, and evidence similar to it, and found no error in the agency’s conclusion that such evidence is insufficient to establish materially changed country conditions in China. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 156-65 (2d Cir.2008). Dong argues that the BIA failed to give meaningful consideration to the evi*561dence that he submitted in support of his motion. However, the BIA is not required to “expressly parse or refute on the record each individual argument or piece of evidence offered by the petitioner.” Wei Guang Wang v. BIA, 437 F.3d 270, 273-75 (2d Cir.2006). While the BIA must consider all evidence in the record, it “may so in summary fashion without a reviewing court presuming that it has abused its discretion.” Id. at 275 (noting that “[t]his is particularly true for evidence, such as the oft-cited Aird Affidavit, which the BIA is asked to consider time and again.”). Accordingly, the BIA did not abuse its discretion in concluding that none of the evidence that Dong submitted in support of his motion justified the reopening of his proceedings.
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
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SUMMARY ORDER
Petitioner De Lin Zheng, a native and citizen of the People’s Republic of China, seeks review of a March 20, 2009 order of the BIA affirming the June 8, 2007 decision of Immigration Judge Alan L. Page, denying his application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re De Lin Zheng, No. A096 435 619 (B.I.A. Mar. 20, 2009), aff'g No. A096 435 619 (Immig. Ct. N.Y. City June 8, 2007). We assume the parties’ familiarity with the underlying facts and procedural history in this case.
When the BIA affirms the IJ’s decision in some respects but not others, this Court reviews the IJ’s decision as modified by the BIA decision, i.e., minus the arguments for denying relief that were rejected by the BIA. See Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir.2005). We review the agency’s factual findings, including adverse credibility determinations, under the substantial evidence standard. 8 U.S.C. § 1252(b)(4)(B); see, e.g., Corovic v. Mukasey, 519 F.3d 90, 95 (2d Cir.2008). Questions of law and the application of law to undisputed fact are reviewed de novo. Salimatou Bah v. Mukasey, 529 F.3d 99, 104 (2d Cir.2008).
The agency’s adverse credibility determination is supported by substantial evidence. See Corovic, 519 F.3d at 95. The IJ identified two significant discrepancies in the record: (1) in his written asylum application, Zheng stated that all of the approximately twenty attendees at Reverend Cai’s funeral were arrested, but he testified that only he and three other people were arrested; and (2) Zheng’s written asylum application and a letter from his father both stated that Zheng was detained for four days, but Zheng testified that he was detained for ninety days, and when confronted about the discrepancy, Zheng suggested that “four days” was perhaps an error for “four weeks.” The IJ also noted that both Zheng’s asylum application and his father’s letter lacked any information regarding the threats and harassment his parents allegedly received. Moreover, when asked about his fear of returning to China, Zheng attributed his concern to fears that the family of a man he killed in the United States would seek revenge, a matter not referred to in his asylum application, which was based on his alleged participation in Christian religious services. These were each discrepancies that went to the heart of Zheng’s claim because they call into question the circumstances surrounding Zheng’s arrest and detention and his basis for his fear of returning to China. See Hongsheng Leng v. Mukasey, 528 F.3d 135, 141-42 (2d Cir.2008). Moreover, although Zheng was asked to provide explanations, a reasonable fact finder would not be compelled to accept the ones he offered. See Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir.2005).
Ultimately, we find no error in the IJ’s adverse credibility determination. Thus, the IJ properly denied Zheng’s application for asylum, withholding of removal, and CAT relief. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.2006); Xue Hong Yang, 426 F.3d at 523.
*574Finally, Zheng argues that the BIA erred in denying his motion to remand for consideration of new evidence relating to his CAT claim. This Court reviews the BIA’s denial of a motion to remand for abuse of discretion. See Li Yong Cao v. Dep’t of Justice, 421 F.3d 149, 157 (2d Cir.2005). Here, the BIA considered Zheng’s purportedly new evidence and determined that some of it had already been considered at Zheng’s merits hearing. Moreover, the BIA reviewed a letter allegedly from the village committee and found that it did not indicate that the government was unable or unwilling to control the family of the man Zheng killed, who were purportedly seeking revenge. Thus, the BIA did not abuse its discretion in denying Zheng’s motion to remand. See INS v. Abudu, 485 U.S. 94, 104-05, 108 S.Ct. 904, 99 L.Ed.2d 90 (1988) (finding that the BIA may deny a motion to reopen when the movant has not established a prima facie case for relief or when he fails to submit previously unavailable evidence).
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
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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/8473737/
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SUMMARY ORDER
Petitioner De Ming Chi, a native and citizen of China, seeks review of a September 15, 2008 order of the BIA affirming the March 15, 2007 decision of Immigration Judge (“IJ”) Noel A. Brennan denying his application for asylum, withholding of removal, and CAT relief. In re De Ming Chi, No. A 077 000 170 (B.I.A. Sept. 15, 2008), aff'g No. A 077 000 170 (Immig. Ct. N.Y. City Mar. 15, 2007). We assume the parties’ familiarity with the underlying facts and procedural history in this case.
When the BIA agrees with the IJ’s conclusion that a petitioner is not credible and, without rejecting any of the IJ’s grounds for decision, emphasizes particular aspects of that decision, this Court reviews both the BIA’s and IJ’s opinions— or more precisely, the Court reviews the IJ’s decision including the portions not explicitly discussed by the BIA. Yun-Zui Guan v. Gonzales, 432 F.3d 391, 394 (2d Cir.2005). We review the agency’s factual findings, including adverse credibility determinations, under the substantial evidence standard. 8 U.S.C. § 1252(b)(4)(B); see also Corovic v. Mukasey, 519 F.3d 90, 95 (2d Cir.2008). For asylum applications governed by the REAL ID Act of 2005, the agency may, considering the totality of the circumstances, base a credibility finding on an asylum applicant’s demeanor, the plausibility of his or her account, and inconsistencies in his or her statements, without regard to whether they go “to the heart of the applicant’s claim.” 8 U.S.C. § 1158(b)(l)(B)(iii). Thus, we “defer ... to an IJ’s credibility determination unless, from the totality of the circumstances, it is plain that no reasonable fact-finder could make such an adverse credibility ruling.” Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir.2008).
Substantial evidence supports the agency’s adverse credibility determination. The IJ reasonably found that: (1) while Chi testified that he told his friend the details of his alleged arrest and detention, a letter from that friend omitted these details; (2) while a letter from Chi’s father states that Chi “had to accept a thought education,” Chi testified that he never underwent any type of “re-education”; and (3) it was implausible that, in September 2004, Chi read an article entitled, “Nine Commentaries on the Communist Party,” given the government’s evidence that the article was first published in November 2004. While Chi offered explanations before the agency that were responsive to each of these findings, the agency did not err in rejecting them. See Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir.2005). We are similarly unpersuaded by the arguments Chi makes in this Court.
Ultimately, viewed in its totality, substantial evidence supports the IJ’s adverse credibility determination. See 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin, 534 F.3d at 167. Therefore, the IJ properly denied Chi’s application for asylum, withholding of removal, and CAT relief because the only evidence that he would be persecuted or tortured depended on his credibility. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.2006).
We need not reach Chi’s argument that the IJ erred in failing to consider whether he had a well-founded fear of future persecution given that she credited portions of his testimony. Chi failed to exhaust any such argument before the BIA. See Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 119-20 (2d Cir.2007). In any event, contrary to Chi’s argument, while the IJ believed that some aspects of Chi’s story may have been true, she concluded that he exaggerated that story to create an asylum claim he would not otherwise have had. In other words, the IJ found that the *578aspects of Chi’s story that may have been true would not render him eligible for asylum. Cf. Paul, 444 F.3d at 156.
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
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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/8473739/
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SUMMARY ORDER
Xiong Liu, a native and citizen of the People’s Republic of China, and his wife, Fui Shee Lee, a native and citizen of Malaysia, seek review of a July 27, 2007 order of the BIA that: (1) affirmed the December 19, 2005 decision of Immigration Judge (“IJ”) Theresa Holmes-Simmons, which denied their applications for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”); and (2) denied their motion to remand. In re Xiong Liu, Fui Shee Lee, Nos. A098 690 410, A098 690 411 (B.I.A. July 27, 2007), aff'g Nos. A098 690 410, A098 690 411 (Immig. Ct. N.Y. City Dec. 19, 2005). We assume the parties’ familiarity with the underlying facts and procedural history in this case.
I. Denial of Application for Relief
When the BIA adopts the decision of the IJ and supplements the IJ’s decision, we review the decision of the IJ as supplemented by the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.2005). We review the agency’s factual findings under the substantial evidence standard. 8 U.S.C. § 1252(b)(4)(B); see also Corovic v. Mukasey, 519 F.3d 90, 95 (2d Cir.2008). We review de novo questions of law and the application of law to undisputed fact. Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.2008).
Petitioners argue that the BIA erred in concluding that they failed to demonstrate a well-founded fear of persecution based on the birth of their U.S. citizen children in violation of China’s family planning policy. However, this argument fails because we have previously reviewed the BIA’s consideration of evidence similar to that which petitioners have submitted and have found no error in its conclusion that such evidence is insufficient to establish an objectively reasonable fear of persecution. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 156-65 (2d Cir.2008).
II. Denial of Motion to Remand
We review the BIA’s denial of a motion to remand for abuse of discretion. Li Yong Cao v. U.S. Dep’t of Justice, 421 F.3d 149, 157 (2d Cir.2005). A motion to remand that relies on newly available evidence is held to the substantive requirements of a motion to reopen. Id. at 156. The BIA did not abuse its discretion in denying petitioners’ request for a remand because it reasonably considered the 2005 U.S. Department of State Country Report on China and the documents at issue in Shou Yung Guo v. Gonzales, 463 F.3d 109 (2d Cir.2006) and found that such documents did not demonstrate petitioners’ prima facie eligibility for the underlying substantive relief sought. See Jian Hui Shao, 546 F.3d at 166-68; see also INS v. Abudu, 485 U.S. 94, 104-05, 108 S.Ct. 904, 99 L.Ed.2d 90 (1988) (recognizing that a movant’s failure to establish a prima facie case for the underlying substantive relief sought is a proper ground on which the BIA may deny such a motion).
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule *580of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
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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/8473741/
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SUMMARY ORDER
Xue Qin Zhu and Chang Chun Zheng, natives and citizens of the People’s Republic of China, seek review of a July 3, 2007 order of the BIA, affirming the July 26, 2005 decision of Immigration Judge (“IJ”) William F. Jankun, which denied their applications for asylum and withholding of removal. In re Xue Qin Zhu, Chang Chun Zheng, Nos. A077 993 981, A073 174 859 (B.I.A. July 3, 2007), aff'g Nos. A077 993 981, A073 174 859 (Immig. Ct. N.Y. City July 26, 2005). We assume the parties’ familiarity with the underlying facts and procedural history in this case.
When the BIA adopts the decision of the IJ and supplements the IJ’s decision, we review the decision of the IJ as supplemented by the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.2005). We review the agency’s factual findings under the substantial evidence standard. 8 U.S.C. § 1252(b)(4)(B); see also Corovic v. Mukasey, 519 F.3d 90, 95 (2d Cir.2008). We review de novo questions of law and the application of law to undisputed fact. Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.2008).
*581As an initial matter, we need not address the government’s contention that the agency’s adverse credibility determination was supported by substantial evidence because petitioners abandon any challenge to the agency’s determination that they were not credible. See Anderson v. Branen, 27 F.3d 29, 30 (2d Cir.1994). Moreover, contrary to the petitioners’ argument, the BIA did not review the IJ’s findings of fact de novo in determining that their evidence failed to demonstrate an objectively reasonable fear of forced sterilization. See 8 C.F.R. § 1003.1(d)(3) (providing that the BIA may not engage in de novo review of the IJ’s findings of fact); see also Jian Hui Shao v. Mukasey, 546 F.3d 138, 162-63 (2d Cir.2008) (concluding that the BIA did not erroneously conduct de novo review of the IJ’s factual findings by making “a legal determination that, while [petitioners’] credible testimony was sufficient to demonstrate a genuine subjective fear of future persecution, more was needed to demonstrate the objective reasonableness of that fear”). Nor did the BIA err by requiring the petitioners to satisfy a higher burden of proof than a reasonably possibility of persecution. See Jian Hui Shao, 546 F.3d at 157.
Petitioners also argue that the agency erred in concluding that they failed to demonstrate their eligibility for asylum and withholding of removal based on the birth of their U.S. citizen children. However, this argument fails because we have previously reviewed the agency’s consideration of evidence similar to that which petitioners presented and have found no error in its conclusion that such evidence is insufficient to demonstrate an objectively reasonable fear of persecution. See Jian Hui Shao, 546 F.3d at 156-65; see also Wei Guang Wang v. BIA, 437 F.3d 270, 275 (2d Cir.2006) (noting that while the BIA must consider evidence such as “the oft-cited Aird affidavit, which [it] is asked to consider time and again[,] ... it may do so in summary fashion”).
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
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01-04-2023
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11-05-2022
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