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https://www.courtlistener.com/api/rest/v3/opinions/8473743/	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.	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8473745/	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.	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8473747/	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.	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8473749/	SUMMARY ORDER Kenneth Kamholtz (“appellant”) seeks review of a December 3, 2008 order and decision of the Western District of New York granting defendants’ motion to dismiss under Fed R. Civ. P. 12(b)(6). On appeal, appellant asserts that the district court erred in dismissing each of his four claims under 42 U.S.C. § 1983: first amendment retaliation, selective enforcement as a denial of equal protection, malicious prosecution, and municipal liability. We assume the parties’ familiarity with the underlying facts, procedural history, and specification of issues for review. To survive a motion to dismiss, the pleading must contain a “short and plain statement ... that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). This need not include detailed factual allegations, but must “contain sufficient factual matter ... to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, — U.S. —, —, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (citing Bell Atlantic v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). We review a motion to dismiss under Rule 12(b)(6) de novo, accepting all factual statements as 591true. Scutti Enter. v. Park Place Entm’t Corp., 322 F.3d 211, 214 (2d Cir.2003). However, “mere conclusory statements” are insufficient, and we need not accept legal conclusions as true. Iqbal, 129 S.Ct. at 1949-50. To state a claim under Section 1983, plaintiff must allege: 1. That the challenged conduct was attributable to someone acting under the color of state law, and, 2. That such conduct deprived plaintiff of a right, privilege or immunity secured by the Constitution or laws of the United States. Rand, v. Perales, 737 F.2d 257, 260 (2d Cir.1984). Appellees were acting under the color of state law, so the only issue is whether appellant has shown that he was deprived of a right under Section 1983. 1. First Amendment retaliation: To establish a First Amendment retaliation claim, appellant must allege: 1. That he engaged in constitutionally protected speech, which for public employees is limited to speech as a citizen on a matter of public concern, 2. That he suffered an adverse employment action, and, 3. That the speech was a “motivating factor” in that adverse action. Garcetti v. Ceballos, 547 U.S. 410, 418, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006); Skehan v. Village of Mamaroneck, 465 F.3d 96, 106 (2d Cir. 2006), overruled on other grounds by Appel v. Spiridon, 531 F.3d 138 (2d Cir.2008). The district court found that appellant failed to state a claim because the alleged facts showed that his speech was not a matter of public concern, and we affirm. Appellant’s statements were about preparing his police reports—a matter directly related to his work as an investigating officer. See Garcetti, 547 U.S. at 421, 126 S.Ct. 1951. 2. Equal Protection: For a claim of selective enforcement, plaintiff must allege: 1. That compared with others similarly situated, he was selectively treated; and 2. Such selective treatment is based on impermissible considerations such as “race, religion, intent to inhibit or punish the exercise of constitutional rights, or malicious or bad faith intent to injure a person.” LaTrieste Rest. & Cabaret Inc. v. Village of Port Chester, 40 F.3d 587, 590 (2d Cir.1994) (quoting LeClair v. Saunders, 627 F.2d 606, 609 (2d Cir.1980)); see also Goldfarb v. Town of W. Hartford, 474 F.Supp.2d 356, 368 (D.Conn.2007) (“[Djemonstrating that a plaintiff has been treated differently is the sine qua non of a LeClair ‘selective enforcement’ violation.”) (citation omitted). Appellant failed to allege any facts showing that he was treated differently than others similarly situated; in fact, appellant failed to compare his situation to that of anyone else. Thus, even assuming that appellant, a public employee, is not precluded from pursuing a selective enforcement claim, see Engquist v. Or. Dep’t of Agric., 553 U.S. 591, 128 S.Ct. 2146, 170 L.Ed.2d 975 (2008), he nevertheless has failed to sufficiently state his claim. 3.Malicious Prosecution: Under New York State law, plaintiff must allege four elements to state a claim of malicious prosecution: 1. The defendant initiated a prosecution against plaintiff, 2. Without probable cause to believe the proceeding could succeed, 3. The proceeding was begun with malice and, 4. The matter terminated in plaintiffs favor. Ricciuti v. N.Y.C. Transit Auth., 124 F.3d 123, 130 (2d Cir.1997). The district court found that appellant both failed to sufficiently allege a lack of probable cause, and that the case was terminated in his favor. We affirm. Appellant argues that the district judge improperly converted the motion to dismiss under 12(b)(6) to a motion for sum592mary judgment under Rule 56 by considering two witness affidavits, which contradicted appellant’s complaint. See Fed.R.Civ.P. 12(d) (“If, on a motion under Rule 12(b)(6) ... matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56. All parties must be given a reasonable opportunity to present all the material that is pertinent to the motion.”). The district court, however, correctly found that the two affidavits were incorporated into the complaint by reference. Rothman v. Gregor, 220 F.3d 81, 88-89 (2d Cir.2000) (noting that the complaint includes “any written instrument attached to it as an exhibit or any statements or documents incorporated in it by reference.”). Documents “plaintiffs either possessed or knew about and upon which they relied in bringing the suit” may be incorporated. Id.; see also Cortec Indus., Inc. v. Sum Holding, L.P., 949 F.2d 42, 47 (2d Cir.1991) (“[Wjhen a plaintiff chooses not to attach to the complaint or incorporate by reference a [document] ... which is integral to the complaint, the defendant may produce [it] when attacking the complaint for its failure to state a claim, because plaintiff should not so easily be allowed to escape the consequences of its own failure.”). When the plaintiff has “actual notice of all the information in the movant’s papers and has relied upon these documents in framing the complaint the necessity of translating a Rule 12(b)(6) motion into one under Rule 56 is largely dissipated.” Cortec Indus., 949 F.2d at 48. Appellant’s complaint references both affidavits, and appellant was clearly on notice of their existence. Defendants were thus entitled to produce the affidavits when attacking appellant’s complaint for its failure to state a claim, and the district court properly considered the affidavits when dismissing appellant’s malicious prosecution claim. 4. Municipal Liability: As we find that there was no constitutional deprivation of appellant’s rights, his claims of municipal liability necessarily fail. We have considered appellant’s other arguments and find them to be without merit. Accordingly, the judgment of the district court hereby is AFFIRMED.	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8473751/	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.	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8473753/	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.	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8473759/	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).	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8473761/	OPINION PER CURIAM. Nina Shahin, proceeding pro se, appeals the orders of the United States District Court for the District of Delaware granting defendants’ motions to dismiss and denying Shahin’s motion for reconsideration of the dismissal. For the reasons set forth below, we will summarily affirm. I. In May 2008, Shahin filed a lawsuit against nine Delaware judges, two law firms, and two court reporters, seeking $9,000,000 in damages for alleged violations of her federal and constitutional rights. Shahin claimed that in three state court proceedings against Delaware Federal Credit Union, the named defendants engaged in coercion, criminal conspiracy, retaliation, and witness tampering, resulting in rulings against Shahin in all three actions.1 The defendants moved to dismiss the case pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6), and on March 31, 2009, 606 F.Supp.2d 525, the District Court granted the defendants’ motions, dismissing Shahin’s complaint. Shahin filed a motion for reconsideration of the order, a motion for leave to file an amended complaint, and a motion for sanctions. On July 21, 2009, the District Court denied all of her motions. A timely appeal followed. II. We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291, and exercise plenary view over the District Court’s dismissal.2 See Santiago v. GMAC Mortgage Group, Inc., 417 F.3d 384, 386 (3d Cir.2005). To survive a motion to dismiss, a *607complaint must contain sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, — U.S. —, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). The assumption of truth does not apply, however, to legal conclusions couched as factual allegations or to “[tjhreadbare recitals of the elements of a cause of action, supported by mere conclusory statements.” Id. Shahin names as defendants several members of the Delaware state judiciary. Members of the judiciary are absolutely immune from suits for monetary damages and such immunity cannot be overcome by allegations of bad faith or malice. See Mireles v. Waco, 502 U.S. 9, 11, 112 S.Ct. 286, 116 L.Ed.2d 9 (1991). Judicial immunity can be overcome only if a judge has acted outside the scope of his or her judicial capacity or in the “complete absence of all jurisdiction.” Id. at 11-12, 112 S.Ct. 286. Despite Shahin’s numerous allegations, there are no facts in the complaint to support inferences that any of the named judges acted outside the scope of his or her judicial capacity or in the absence of jurisdiction. Id. at 11, 112 S.Ct. 286. Shahin also names as defendants two court reporters and two law firms that represented the credit union in her prior state court proceedings. We agree with the District Court that Shahin’s complaint fails to allege any facts to support her federal or constitutional claims. Shahin alleges that during the state proceedings, one lawyer was substituted for another lawyer, a lawyer filed a motion without affording her proper notice, and a lawyer engaged in ex parte communications with the presiding judge. Even taking the allegations as true, the complaint does not contain any facts that would allow one to reasonably infer that the defendants violated federal or constitutional law. Shahin’s conelusory allegations are insufficient to plausibly demonstrate that any of the defendants violated Shahin’s civil or constitutional rights.3 See Iqbal, 129 S.Ct. at 1949. We have held that when a complaint is dismissed for failure to state a claim upon which relief may be granted, a plaintiff should be granted the opportunity to amend her complaint unless amendment would be inequitable or futile. Grayson v. Mayview State Hosp., 293 F.3d 103, 106 (3d Cir.2002). Given that, as discussed above, there are no facts to infer that any of the defendants violated Shahin’s federal or constitutional rights, we conclude that it would have been futile for the District Court to provide Shahin with leave to amend her complaint before granting the motions to dismiss. Because the appeal does not present a substantial question, we will summarily affirm the District Court’s orders dismissing the complaint and denying Shahin’s motion for reconsideration. . This is Shahin's second action in federal court in regards to the state court proceedings against Delaware Federal Credit Union. In June 2007, Shahin initiated a lawsuit against the State of Delaware and its judiciary, alleging violation of her constitutional rights and collusion between the judges and attorneys. The District Court dismissed that action as frivolous pursuant to 28 U.S.C. § 1915(e), and this Court dismissed Shahin’s appeal as frivolous pursuant to 28 U.S.C. § 1915(e). See Shahin v. Delaware, 271 Fed.Appx. 257 (3d Cir.2008). . We generally review a district court’s decision on a motion for reconsideration for abuse of discretion. Max’s Seafood Cafe ex rel. Lou-Ann, Inc. v. Quinteros, 176 F.3d 669, 673 (3d Cir.1999). However, where, as in the instant appeal, the decision is "predicated on an issue of law, such an issue is reviewed de novo.” Id. . To the extent that Shahin may have been alleging state law violations, the District Court was correct in declining to extend supplemental jurisdiction over any state law claims. See 28 U.S.C. § 1367; De Asencio v. Tyson Foods, Inc., 342 F.3d 301, 309 (3d Cir.2003).	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8473765/	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).	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8473771/	OPINION PER CURIAM. Appellant Paul Podhorn, a pro se prisoner, appeals from the District Court’s denial 619of his petition for a writ of habeas corpus under 28 U.S.C. § 2241. In his habeas petition, Podhorn challenged the Federal Bureau of Prisons’ (“BOP”) calculation of his federal sentence.1 Podhorn also alleged that the BOP improperly denied him placement in a Community Corrections Center (“CCC”). For the reasons set forth below, we will summarily affirm. See I.O.P. 10.6. I. On April 21, 2006, Podhorn, was sentenced in the United States District Court for the Southern District of Illinois to eighty-seven months of imprisonment for various firearms violations, including selling firearms -without maintaining proper records, in violation of 18 U.S.C. § 922(m).2 On or about May 28, 2009, after the Seventh Circuit Court of Appeals determined that Podhorn erroneously received a sentence enhancement under U.S.S.G. § 2K2.1(b)(4), the District Court amended Podhorn’s term of imprisonment from eighty-seven months to seventy months. Following his re-sentencing, the BOP re-calculated Podhorn’s sentence under applicable guidelines, determining that, based on a seventy-month sentence that began on April 21, 2006, and excluding prior custody credit and Good Time Credits (“GCT”), Podhorn would be eligible for release on February 20, 2012. Podhorn was initially afforded a prior custody credit of 637 days. However, after contacting the Sheriff of Jersey County, Illinois, to confirm Podhorn’s prior custody credit relating to his state incarceration, the BOP was informed that prior custody credit previously afforded Podhorn from January 10, 2003, through February 10, 2003, should not have been included. Pod-horn was released from state custody on a recognizance bond on January 10, 2003, and thus, he was only entitled to a prior custody credit of 606 days. Accordingly, Podhorn’s release date, not including GCT, would be June 24, 2010. On a seventy-month sentence, however, Podhorn is eligible to receive a maximum of 274 days of GCT. To date, he has lost a total of ninety-seven days of GCT through the BOP’s disciplinary process. Thus, his current earned and projected GCT is 190 days. Subtracting 190 days of GCT, earned and projected, from his full term date of June 24, 2010, the BOP projects that Podhorn will be released on December 16, 2009. II. We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291 and 28 U.S.C. § 2253(a). A certificate of appealability is not required to appeal from the denial of Podhorn’s § 2241 petition. See Burkey v. Marberry, 556 F.3d 142, 146 (3d Cir.2009). We exercise plenary review over the District Court’s legal conclusions, and review its factual findings for clear error. See Vega v. United States, 493 F.3d 310, 314 (3d Cir.2007). 620ill. Podhorn challenges the BOP’s calculation of his release date as December 16, 2009. He believes that he should have been released on August 5, 2009. We agree with the District Court that Podhorn has not demonstrated that the BOP’s calculations are incorrect. As mentioned earlier, the full term expiration of Podhorn’s seventy-month sentence, not including prior custody credit or GCT, is February 20, 2012. Podhorn was afforded 606 days prior custody credit, making the actual full term expiration date of his sentence June 24, 2010. Provided that he receives the remaining possible 190 days of GCT, his projected release date is December 16, 2009. Thus, the BOP has properly calculated Podhorn’s likely date of release as December 16, 2009. Although Podhorn claims otherwise, we agree with the District Court that the BOP’s calculations are correct and that Podhorn has not set forth credible evidence suggesting otherwise. We also agree with the District Court that the BOP has not wrongfully failed to transfer Podhorn to a CCC. As an initial matter, it has been established that prisoners have no constitutional right to be assigned to a particular institution, facility or rehabilitative program. See Olim v. Wakinekona, 461 U.S. 238, 245, 103 S.Ct. 1741, 75 L.Ed.2d 813 (1983). Simply because the BOP has discretion to transfer or assign an inmate to a CCC does not mean that it is required to do so, provided that it considers the appropriate factors. See Woodall v. Federal Bureau of Prisons, 432 F.3d 235, 249 (3d Cir.2005). Prior to Podhorn’s May 28, 2009 re-sentencing, his projected release date was February 2, 2011. According to the BOP, review of an inmate’s eligibility for CCC placement typically occurs seventeen to nineteen months prior to the inmate’s release date. At the time of Podhorn’s re-sentencing, his release date was more than nineteen months away. Thus, he had yet to be evaluated for CCC placement. While it is true that Podhorn’s re-sentencing resulted in him having less than twelve months remaining on his sentence, and thus enabled him to be considered for CCC placement at that time, he had already filed an application with the BOP requesting to be transferred to the Eastern District of Missouri (where his wife was living) to serve his supervised release. On or about June 17, 2009, the United States Probation Office (“U.S.P.O.”) for the Eastern District of Missouri denied Podhorn’s transfer request on the grounds that Podhorn’s wife told the U.S.P.O. that she would be relocating to the Southern District of Florida. That same month, Podhorn signed another transfer request seeking to be transferred to the Southern District of Florida. The request, which Podhorn signed, specifically stated that he would be reviewed for CCC placement upon approval by the U.S.P.O. in the Southern District of Florida.3 We agree with the District Court that Podhorn’s claim that Appellees have improperly denied him placement in a CCC, is unfounded. Podhorn’s requests to be transferred to other jurisdictions are at the root of the delay in his evaluation for CCC placement. Accordingly, the District Court did not err in denying this claim. As Podhorn’s appeal presents no substantial question, we will summarily affirm. *621See Third Cir. LAR 27.4; I.O.P. 10.6. Podhorn’s motion for appointment of counsel is denied. . We note that Podhorn has filed several other cases against Appellees in the District Court, many of which have already been closed. See, e.g. Podhorn v. Grondolsky, Civ. No. 09-2531, 2009 WL 1662332 (D.N.J.2009). In the notice of appeal that Podhorn filed in this case, he discusses claims which he did not raise in his § 2241 petition and which the District Court did not review in its August 4, 2009, 2009 WL 2413641, memorandum opinion. We will only review those claims reviewed by the District Court in the instant case. To the extent that Podhorn seeks review of additional claims litigated in other District Court cases, he must file proper separate notices of appeal. . Podhorn has been serving his federal sentence at F.C.I. Fort Dix in New Jersey. . As of the date that the District Court issued its decision, Podhorn's request to be transferred to the Southern District of Florida remained pending. The current status of Pod-horn’s transfer request is unclear.	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8473773/	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.	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8473775/	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.	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8473777/	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.	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8473779/	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).	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8473789/	OPINION OF THE COURT CHAGARES, Circuit Judge. In this personal injury action, plaintiff Kenneth Dorney appeals from an order granting a motion for summary judgment in favor of defendants Dominic and Diana Mammi. We will affirm. I. Because we write solely for the parties’ benefit, we recite only the essential facts. Dorney, a New Jersey citizen, visited the defendants at their West Virginia residence for a few days in October 2004. During the visit, Dominic Mammi asked Dorney several times to help him trim some branches on a tree located in his yard. Dorney ultimately agreed, albeit reluctantly. The two went into the garage and retrieved a double-extended aluminum ladder, an electric chainsaw to trim the branches, and a generator to power the chainsaw. Dominic extended the ladder its entire length, and then he and Dorney placed it against the tree. The base of the ladder was positioned approximately six feet away from the base of the tree trunk, and the top of the ladder rested on the first branch that Dominic wanted trimmed. Dorney tied a piece of rope to the chainsaw and then began to climb. When he reached the branch — about 18-25 feet above the ground — he pulled the chainsaw up with the rope. “Split seconds” after Dorney began to trim the branch with his right hand, the ladder twisted and ultimately threw him to the ground, breaking his hip and arm. Because he was looking at the branch at the time the ladder twisted, Dorney does not know whether Dominic was holding the ladder, as he had requested. Dominic testified that he had indeed been holding the ladder until it was knocked from his hands. Dominic surmised that when Dorney began to cut the branch (which had extended from the tree approximately 20-25 feet), it “whipped the stump part back [and] hit the ladder,” throwing Dorney off. But Dominic, too, had averted his eyes to shield them from sawdust, so he did not actually see the branch hit the ladder. There were no eyewitnesses to the accident. In September 2006, Dorney filed suit against the defendants in the District Court,1 asserting two negligence claims. After discovery, the defendants moved for summary judgment, which the District Court granted in an opinion and order issued on September 22, 2008. Applying West Virginia negligence principles, the District Court held that the defendants owed no duty to Dorney to protect him against the open and obvious danger that caused his injuries. It reasoned that Dorney’s voluntary decision to climb the ladder and single-handedly trim a tree branch with an electric chainsaw posed such an obvious risk that the defendants were under no compulsion of law to prevent the harm that befell him. The District Court then held that in any event, Dorney had produced no evidence that Dominic acted negligently, that any of the equipment was defective, or that any of Dominic’s actions proximately caused Dorney’s injuries. Summarizing the record, the District Court stated that “[p]laintiff simply does not know why the ladder fell. As plaintiff testified, ‘he’s down there and I’m up 651here.’ ” Op. at 15. This timely appeal followed. II. The District Court had diversity jurisdiction pursuant to 28 U.S.C. § 1332; we have appellate jurisdiction pursuant to 28 U.S.C. §§ 636(c)(3) and 1291. Our review of the District Court’s grant of summary judgment is plenary, and we apply the same legal standard as it should have. Vitalo v. Cabot Corp., 399 F.3d 536, 542 (3d Cir.2005). The defendants are entitled to summary judgment “if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that [defendants are] entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). In conducting our analysis, we must view the record in the light most favorable to Dorney, the non-movant, and must draw all reasonable inferences in his favor. See Vitalo, 399 F.3d at 542; Fed.R.Civ.P. 56(c). To defeat summary judgment, however, Dorney must “produce admissible evidence containing ‘specific facts showing that there is a genuine issue for trial.’ ” Vitalo, 399 F.3d at 542 (quoting Fed.R.Civ.P. 56(e)). III. In West Virginia,2 as in most states, “the mere happening of an accident is legally insufficient to establish liability.” McMillion v. Selman, 193 W.Va. 301, 456 S.E.2d 28, 30 (1995) (discussing Burdette v. Burdette, 147 W.Va. 313, 127 S.E.2d 249 (1962)). Instead, to recover on his negligence claims, Dorney must demonstrate that the defendants owed him a duty of reasonable care, that they breached that duty by acting unreasonably under the circumstances, and that their negligence proximately caused his injuries. Strahin v. Cleavenger, 216 W.Va. 175, 603 S.E.2d 197, 205 (2004). The threshold question, of course, is “whether a duty was owed.” Id. The duty concept is not an “inflexible principle, since it is not absolute, but is always relative to some circumstance of time, place, manner or person.” Id. at 206 (citation and quotation marks omitted). In landowner liability cases, “landowners or possessors ... owe any non-trespassing entrant a duty of reasonable care under the circumstances.” Mallet v. Pickens, 206 W.Va. 145, 522 S.E.2d 436, 446 (1999). More specifically: The ultimate test of the existence of a duty to use care is found in the foreseeability that harm may result if it is not exercised. The test is, would the ordinary man in the defendant’s position, knowing what he knew or should have known, anticipate that harm of the general nature of that suffered was likely to result? Id. But “[t]he duty of reasonable care does not require that the landowner be an insurer” of the entrant’s safety, and if the defendant “is not guilty of actionable negligence or willful or wanton misconduct ... he is not liable for injuries sustained by” the plaintiff. Stevens v. W. Va. Inst. of Tech., 207 W.Va. 370, 532 S.E.2d 639, 643 (1999) (quoting Burdette, 127 S.E.2d at 252). Moreover, “[a] landowner is not required to obviate dangers which are open and obvious, nor to warn [entrants] of such patent hazards.” Alexander v. Curtis, 808 F.2d 337, 339 (4th Cir.1987). “There is no liability for injuries from dangers that are obvious, reasonably appárent, or as well known to the person injured as they are to the owner or occupant.” Id. (quoting Burdette, 127 S.E.2d at 252). 652As the District Court recognized, Dorney’s theory of recovery in this case is not altogether clear. See Op. at 11. To the extent Dorney argues that Dominic Mam-mi should have better secured the ladder, devised a safer way for him to trim a tree branch 18-25 feet above the ground, or prevented him from climbing the ladder entirely, we agree with the District Court that the danger inherent in Dorney’s activity precludes recovery. In Burdette, the Supreme Court of Appeals of West Virginia reversed a jury verdict for a plaintiff who had fallen from the top of a ladder on defendant’s property. 127 S.E.2d at 254. There were no defects in the ladder, and the plaintiff had submitted evidence that the bottom of the ladder simply “kicked out” from under him. Id. at 251. The court held that the evidence showed that the risks posed by the ladder were as apparent to the plaintiff as they could have been to the defendant, and reversed the verdict. Id. at 253. In so doing, the court relied on other ladder cases, one of which is remarkably similar to this one. In Velte v. Nichols, 211 Md. 353, 127 A.2d 544, 545 (1956), plaintiff climbed a ladder leaning against a trailer that contained bundles of Christmas trees. After plaintiff reached the top of the ladder — which was resting upon the trunks of the trees — the bottom of the ladder slipped from under him, causing him to fall. Id. The plaintiff later learned that there was ice under the bottom of the ladder. Id. The Court of Appeals of Maryund reversed a jury verdict in plaintiff’s favor, holding as follows: In the instant case the ladder was not defective. The inherent danger that the foot of the ladder may slip, when it is leaning against a tailgate or the trunks of trees, was as apparent to the plaintiff as it could have been to the defendants. Yet the plaintiff did not test the stability of the ladder but on his own statement mounted it to the very top, without inspection. As a matter of fact there was no evidence that the defendants knew that there was ice in the street under the ladder. That condition could have been ascertained upon inspection by the plaintiff as well as by the defendants. The defendants were not insurers of their own premises, far less the condition of the street. Id. at 546. We agree with this reasoning.3 Allocation of the dangers inherent in Dorney’s chosen activity — climbing a ladder resting upon the very branch he planned to trim, single-handedly, with an electric chainsaw — is properly placed upon him, and him alone. The defendants were in no better position to foresee or prevent the accident arising from Dorney’s ascent, which carried with it open and obvious risks that would be patently apparent to a reasonable person. Indeed, Dorney himself described the risks posed by his venture as “evident.” Citing no authority, Dorney attempts to distinguish the cases cited by the District Court on the basis that the dangers in those cases were “attenuated to the prop*653erty.” We do not readily understand this argument, and we reject it in any event. West Virginia case law simply does not condition application of the open-and-obvious-dangers doctrine on the particular relationship of the risks to the physical premises. Dorney has not (nor can he) materially distinguish this case from Burdette, from the ladder cases cited in Burdette, or from any of the other cases cited by the District Court. Finally, to the extent Dorney advances a theory that Dominic Mammi actually caused the ladder to twist (as opposed to his failure to prevent the ladder from twisting), we find no error in the District Court’s analysis. The only evidence with respect to the cause of the accident came from Dominic Mammi, who testified that the branch Dorney had trimmed “whipped” back and knocked the ladder out from under him. Dorney has posited no contrary evidence shedding additional light on the cause of his fall. We therefore agree with the District Court that the record, viewed in the light most favorable to Dorney, would not permit a rational factfinder to conclude that any of Dominic’s actions fell below a reasonable standard of care or proximately caused Dorney’s injuries. Having failed to set forth any specific facts supporting two critical elements of his negligence claims, Dorney has not met his burden to avoid summary judgment. See Hugh v. Butler County Family YMCA, 418 F.3d 265, 267 (3d Cir.2005) (“While the evidence that the non-moving party presents may be either direct or circumstantial, and need not be as great as a preponderance, the evidence must be more than a scintilla.”) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)); Fed.R.Civ.P. 56(e). IV. For the foregoing reasons, we will affirm the District Court’s order. . By the parties' consent, this matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). We refer to the Magistrate Judge as the "District Court.” . Neither parly takes issue with the District Court’s application of West Virginia law. We, too, agree with the District Court's choice of law. . We recognize, as did the District Court, that Burdette and the cases cited therein were decided long before Mallet, in which the Supreme Court of Appeals of West Virginia abolished the common-law distinctions between invitees, licensees, and trespassers. See Mallet, 522 S.E.2d at 446. Nevertheless, the Supreme Court of Appeals again cited Burdette— in a case decided after Mallet — for the proposition that "[t]he duty of reasonable care does not require that the landowner be an 'insurer of the safety of [the person] present on [the] premises....’” Stevens, 532 S.E.2d at 643 (quoting Burdette, 127 S.E.2d at 252) (first alteration in original). Thus, we do not read Mallet to undermine the well-established doctrine regarding open and obvious dangers.	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8473797/	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.	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8473799/	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.	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8473801/	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 ante669cedent” 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).	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8473803/	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.	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8473807/	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.	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8473809/	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.	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8473811/	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.	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8473818/	700OPINION McKEE, Circuit Judge. Diane Rosetsky appeals a grant of summary judgment in favor of her former employer, National Board of Medical Examiners of the United States of America, Inc. (“NBME”), on claims of age discrimination under the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 623(a), and the Pennsylvania Human Relations Act (“PHRA”), 43 Pa. Stat. Ann. § 955, as well as on claims of unlawful retaliation under the ADEA in violation of 29 U.S.C. § 623(d). For the reasons that follow, we will affirm in part, and vacate and remand in part. I. We have jurisdiction pursuant to 28 U.S.C. § 1331. We review the district court’s grant of summary judgment de novo and apply the same test as the district court. See MBIA Ins. Corp. v. Royal Indem. Co., 426 F.3d 204, 209 (3d Cir.2005). Summary judgment is appropriate where there are no genuine issues of material fact. Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In reviewing a grant of summary judgment, we view all facts in the light most favorable to Rosetsky, the non-moving party. See Bowers v. Nat’l Collegiate Athletic Ass’n, 475 F.3d 524, 535 (3d Cir.2007). As we write primarily for the parties who are familiar with the facts of this case, we need not recite the factual or procedural history in detail. II. When evaluating claims of age discrimination under the ADEA, we apply the McDonnell Douglas burden shifting analysis. McDonnell Douglas v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); see also Fasold v. Justice, 409 F.3d 178, 184 (3d Cir.2005). Under McDonnell Douglas, Rosetsky must first establish a pr ima facie case as to each of her discrimination claims. To establish a prima facie. case of age discrimination, Rosetsky must show that she: (1) was at least forty years old; (2) was qualified for her job; (3) was subject to an adverse employment action; and (4) was replaced by an individual sufficiently younger to give rise to an inference of age-based discrimination. Anderson v. Consol. Rail Corp., 297 F.3d 242, 249 (3d Cir.2002). If she succeeds in establishing a prima facie case of age discrimination, “the burden then must shift to the employer to articulate some legitimate, nondiscriminatory reason” for the adverse employment action. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817. If the employer does so, the burden shifts back to Rosetsky to prove by a preponderance of the evidence that the non-discriminatory reasons proffered by her former employer, NBME, were merely a pretext for discrimination. Id. at 804, 93 S.Ct. 1817; see also Jones v. Sch. Dist. of Philadelphia, 198 F.3d 403, 410 (3d Cir.1999) (citing Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981)). Rosetsky asserts that she was subject to an adverse employment action when her supervisor at NBME, Kathy Holtzman assigned her additional clerical duties allegedly not referenced in her job description, while promoting other, younger employees to more substantive projects. This argument is meritless. It is uncontested that Rosetsky’s job description included “assist[ing] with other duties as assigned,” as well as other tasks specifically designed to accommodate “support” needs of her manager, Holtzman, and others. See Appellant’s Br. at 7. Ro701setsky admitted that not all of the tasks Holtzman assigned her were clerical in nature. The work included the opportunity to perform work specifically mentioned in her job profile, e.g., creating databases and editing tutorial slides. Rosetsky also admitted that both younger and older NBME employees were often responsible for performing clerical duties. We are confident that nothing on this record would allow a reasonable juror to conclude that younger employees were treated more favorably. The younger employees that Rosetsky relies upon had different job titles and occupied different positions than Rosetsky. See App. at 420a. There is nothing to support Rosetsky’s claim that two younger employees “advanced quickly throughout the company! ]” in a manner that would suggest she was discriminated against. Rather, she makes the rather astonishing admission that she did not know if she had the knowledge necessary to fulfill the requirements of the higher position or not. See id. at 22. Given this record, neither Rosetsky’s dissatisfaction with work assignments, nor assignment of clerical duties such as “filfing] and keepfing] track of various documents,” Appellant Br. at 11, rise to the level of the sort of materially adverse ‘ “significant change in employment status’ ” required for a cause of action under the ADEA. Weston v. Pennsylvania, 251 F.3d 420, 431 (3d Cir.2001) (quoting Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998)). Accordingly, Rosetsky has not established a prima facie case of age discrimination against NBME. She has failed to point to any evidence to support a finding that she was subject to an adverse employment action by NBME. Absent some proof that she was assigned clerical responsibilities or other “demeaning” tasks not assigned to younger employees, her claim of job discrimination is nothing short of frivolous. III. We also analyze Rosetsky’s retaliation claims under the three-step framework of McDonnell Douglas. To establish a prima facie case of retaliation, Rosetsky must present sufficient evidence to establish that: (1) she was engaged in protected conduct; (2) an adverse action was taken; and (3) there is a causal link between the protected conduct and the adverse action. Woodson v. Scott Paper Co., 109 F.3d 913, 920 (3d Cir.1997) (citations omitted). Once a prima facie case is established, the burden shifts to NBME to present a non-retaliatory explanation for the challenged employment decision. Id. at 920 n. 2; see also McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817. It is undisputed that Rosetsky was terminated after she complained to Human Resources (“HR”) about her treatment. It is also undisputed that five days before receiving her notice of discharge, and six weeks after complaining to HR, Rosetsky sent numerous emails to her supervisor in which she refused to do the tasks assigned to her because she felt they were “beneath” her education level. She also presented an ultimatum in which she demanded a $10,000 raise and a new job title which did not exist within NBME. She even went so far as to refuse repeated requests to keep track of her project time. See App. at 319a. The situation became so bad that several of Rosetsky’s co-workers complained to NBME supervisors about her behavior. Id. at 297-99a. Such facts, even when viewed in the light most favorable to Rosetsky, demonstrate that NBME’s reasons for terminating Rosetsky were legitimate and nondiscriminatory. Rosetsky must proffer evidence sufficient for a jury to find that “an invidious 702discriminatory reason was more likely than not a motivating or determinative” factor in her discharge rather than her own insubordination, unprofessional demands, and unprofessional conduct. Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir.1994). Even though Rosetsky’s termination notice was sent soon after she complained to HR about her treatment, and even though such proximity can sometimes raise an issue of fact about retaliatory motive, that is not the case here. When this record is viewed in its most favorable light (from Rosetsky’s perspective), there is still nothing to suggest any retaliatory motives on the part of her employer, and Rosetsky’s argument to the contrary is even more frivolous than her claim of age discrimination. Rosetsky does not contest that she issued demands and ultimatums about what she required from NBME if she was to continue doing her job. Her insubordination extended to the seemingly routine task of submitting time records for projects she was given to complete. Her presence and behavior became so disruptive and insubordinate that NBME finally terminated her. No reasonable fact finder could conclude anything other than that her termination resulted from her own unprofessional conduct, and not from any discriminatory or retaliatory animus on her employer’s part. IV. Rosetsky also argues that the district court committed reversible error by refusing to grant her request for an extension of the discovery deadline. Given this record, we must disagree. We review the district court’s ruling for abuse of the district court’s broad discretion and ‘ “we will not upset a district court’s conduct of discovery procedures absent a demonstration that the court’s action made it impossible to obtain crucial evidence.’ ” Gallas v. Supreme Court of Pa., 211 F.3d 760, 778 (3d Cir.2000) (quoting Fine Antitrust Litig. v. Boise Cascade Corp., 685 F.2d 810, 818 (3d Cir.1982)). Further, “implicit in such a showing is proof that more diligent discovery was impossible.” Id. at 778 (quoting Fine Antitrust Litig., 685 F.2d at 818). Here, rather than attempting to work within the sixty-day discovery schedule set by the district court, Rosetsky’s counsel waited until the eve of the deadline to notice any depositions.1 When he finally did so, giving NBME’s counsel merely one week’s notice, he failed to check the schedules of either the desired deponent, or opposing counsel. Consequently, upon receipt of the deposition notices, NBME’s counsel informed Rosetsky’s counsel that she was unavailable on the requested date due to a previously scheduled deposition in another matter. Rosetsky’s counsel, however, declined to select another date within the deadline and instead filed an extension just two days before the deadline.2 Thus, Rosetsky’s counsel did not make a good faith effort to comply with the district court’s published discovery procedures and failed to offer any reasons why diligent discovery was not possible. V. Finally, the district court also granted NBME summary judgment on 703Rosetsky’s PHRA claim. Pursuant to the PHRA, 43 P.S. § 962(c), the Pennsylvania Human Rights Commission (“PHRC”) has exclusive jurisdiction over all cases involving a claim of discrimination for one year so that it may conduct an investigation and, if possible, resolve the matter. Burgh v. Borough Council of the Borough of Montrose, 251 F.3d 465, 471 (3d Cir.2001) (citing Clay v. Advanced Computer Applications, Inc., 522 Pa. 86, 559 A.2d 917, 920 (1989)). Prior to seeking judicial remedies, a plaintiff must exhaust all administrative remedies and comply with all procedural requirements under the PHRA. Clay, 559 A.2d at 919-20. Rosetsky argues that her PHRA claim should have been dismissed without prejudice for failing to exhaust administrative remedies so that she could properly exhaust them. November 29, 2006 is the earliest date on which Rosetsky’s discrimination claim can be considered filed with the PHRC. Eight months later, on August 2, 2007, Rosetsky filed this action alleging violations of both ADEA and PHRA in federal district court. Rosetsky thus failed to comply with 43 P.S. § 962(c) because she filed her action under the PHRA in district court before the PHRC’s mandatory one year investigation period had expired. Accordingly, the district court did not have subject matter jurisdiction over the PHRA claim. See, e.g., First Jersey Securities, Inc. v. Bergen, 605 F.2d 690, 700 (3d Cir.1979) (holding plaintiffs “failure to exhaust its administrative remedies rendered the district court without jurisdiction to entertain the suit”). For the foregoing reasons, we will vacate the Order and Opinion of the district court granting NBME’s motion for summary judgment as to Rosetsky’s PHRA claim and remand with instructions to dismiss Rosetsky’s PHRA claim for lack of subject matter jurisdiction.3 VI. For the foregoing reasons, we will affirm the district court’s grant of summary judgment in favor of NBME as to Rosetsky’s ADEA discrimination and retaliation claims, but vacate the district court’s Order granting summary judgment in favor of NBME as to Rosetsky’s PHRA claim. We will remand with instructions to dismiss that claim for lack of subject matter jurisdiction. . Here, the district judge provided notice to counsel via the district court’s website that he grants discovery extensions sparingly and only for “weighty cause.” See Hon. Stewart Dalzell, Policies and Procedures: Part I, page 2, available at http://www.paed.uscourts.gov/ documents/procedures/dalpoll.pdf . In her brief to this court, Rosetsky did not contest any of the facts surrounding her counsel's failure to comply with the district court's published discovery procedures or demonstrate actual or substantial prejudice by the district court. . The district court may allow Rosetsky to amend her complaint as the mandatory one year period under 43 P.S. § 962(c) has now expired. See, e.g., Logan v. In-Ter-Space Services, Inc., No. 07 Civ. 0761, 2007 WL 2343868, at 2 (E.D.Pa. Aug. 15, 2007); McBride v. Bell of Pennsylvania, No. 89 Civ. 0243, 1989 WL 71545, at 3 (E.D.Pa. June 27, 1989). However, the district court may choose not to exercise jurisdiction over Rosetsky's state law claim as none of her federal claims survived summary judgment.	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8473820/	OPINION PER CURIAM. David Rivera appeals pro se from a District Court order granting Defendants’ motions to dismiss the complaint for failure to state a claim upon which relief can be granted. See Fed.R.Civ.P. 12(b)(6). For the reasons that follow, we will affirm the District Court’s judgment. I. Background, In June 2003, Rivera was arrested in Northumberland County, Pennsylvania and incarcerated in county prison on theft and related charges. The day after his arrest, the State of Florida issued detainers requesting Rivera’s return to Florida in connection with criminal charges pending there.1 Rivera pleaded guilty to the Pennsylvania charges. Prior to his Pennsylvania sentencing, in March 2004, Rivera filed a petition for a writ of habeas corpus in Pennsylvania state court, seeking dismissal of the Florida detainers. The Northumberland County Court of Common Pleas held that Rivera had not been brought before the court on the Florida detainers in a timely manner pursuant to the thirty-day requirement of Pennsylvania’s Uniform Criminal Extradition Act (“UCEA”), 42 Pa.C.S. § 9136.2 The state court therefore granted Rivera’s habeas corpus petition and dismissed the Florida detainers.3 At that time, Rivera was incarcerated in Pennsylvania state prison at Graterford, serving the sentence on his Pennsylvania conviction. In May 2005, while Rivera was still imprisoned in Pennsylvania, Florida issued new detainers under the IAD.4 Rivera was 706scheduled to complete his sentence and be released from SCI-Graterford on June 4, 2006, but he was not released. Instead, he appeared before the Montgomery County Court of Common Pleas on June 5, 2006, which issued a commitment order against him under the UCEA,5 42 Pa.C.S. § 9134, for fleeing the charges pending in Florida.6 The Court of Common Pleas remanded Rivera to the Montgomery County prison. At the end of the UCEA’s thirty-day confinement period, see 42 Pa.C.S. § 9136, the Commonwealth sought and was granted ex parte permission to confine Rivera for an additional sixty days, to await Rivera’s extradition papers from Florida. Rivera filed another state court petition for a writ of habeas corpus. The Montgomery County Court of Common Pleas granted the petition on August 11, 2006, holding that Rivera’s confinement should not have been extended without affording Rivera a. hearing. The court again dismissed the Florida detainers. In the interim, on July 31, 2006, Governor Rendell signed a Governor’s Warrant for Rivera’s detention based on an extradition request sent by Florida’s governor. On August 15, 2006, Rivera’s release paperwork was completed, but he was not permitted to leave the Montgomery County prison. Based upon information provided by ADA Ricca concerning the pending Florida charges and the Governor’s Warrant, police issued a criminal complaint charging Rivera with being a fugitive from justice in Florida. On that basis, Rivera continued to be detained. Rivera filed yet another state court petition for a writ of habeas corpus. Rivera’s counsel argued that the detention after the August 11, 2006, grant of habeas relief was illegal, and that the Commonwealth should have discharged Rivera from custody and obtained a new Governor’s Warrant. On September 18, 2006, the Court of Common Pleas granted Rivera’s petition and dismissed and vacated the Governor’s Warrant without prejudice. Among other things, the court indicated that, under Commonwealth ex rel. Coffman v. Aytch, 238 Pa.Super. 584, 361 A.2d 652, 654 (1976), Rivera should have been released and immediately rearrested, rather than held continuously. Pursuant to the September 18, 2006, grant of habeas corpus relief, Rivera was discharged from the Montgomery County prison on September 20, 2006. He was immediately re-arrested in a nearby prison parking lot on a new criminal complaint, again charging him as a fugitive from justice in Florida. On October 12, 2006, within the permissible thirty-day detention period under the UCEA, Governor Rendell issued a new Governor’s Warrant. Rivera filed another state court petition for a writ of habeas corpus. This time, the Montgomery County Court of Common Pleas denied the writ and ordered Rivera’s extradition to Florida. Rivera is now serving a sentence in Florida. Rivera then filed a civil action pursuant to 42 U.S.C. § 1983 in the United States District Court for the Eastern District of Pennsylvania. The District Court appointed Rivera counsel, and through counsel, Rivera filed an amended complaint. In it, Rivera alleges that Julio Algarin (warden of the Montgomery County prison), Karen 707Ricca (Assistant District Attorney for Montgomery County), and Governor Edward Rendell violated Rivera’s constitutional rights under the Fourth and Fourteenth Amendments by detaining him after the expiration of his Pennsylvania sentence on June 4, 2006, and pursuant to the Governor’s Warrant issued on July 31, 2006. Rivera does not dispute that, at all relevant times, criminal charges were pending against him in Florida and he was a fugitive from justice there. Rivera also does not dispute his September 20, 2006, arrest and subsequent detention pursuant to the second Governor’s Warrant, which ultimately led to his extradition to Florida. Rather, Rivera’s amended complaint claims that authorities failed to adhere to proper procedures at various times from June 5, 2006 (the day after he completed his Pennsylvania sentence), through September 19, 2006, rendering his detention unconstitutional for some or all of that approximately three-month period. He seeks compensatory7 and punitive8 damages, as well as injunctive relief. On January 10, 2008, the District Court dismissed Rivera’s § 1983 complaint for failure to state a claim upon which relief can be granted. It explained that Rivera was legally detained after June 4, 2006, pursuant to a commitment order. The District Court further explained that Rivera’s detention pursuant to the first Governor’s Warrant was likewise legal, because the warrant was validly issued. Rivera filed a timely notice of appeal. II. Analysis We exercise plenary review over the District Court’s grant of Defendants’ motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). See Taliaferro v. Darby Twp. Zoning Bd., 458 F.3d 181, 188 (3d Cir.2006). “[W]hen ruling on a defendant’s motion to dismiss, a judge must accept as true all of the factual allegations contained in the complaint.” Erickson v. Pardus, 551 U.S. 89, 127 S.Ct. 2197, 2200, 167 L.Ed.2d 1081 (2007), citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). To survive dismissal, a complaint must contain sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, — U.S. —, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009), citing Twombly, 550 U.S. at 570, 127 S.Ct. 1955. In deciding a motion to dismiss, we may consider the allegations of the complaint, exhibits attached thereto, and matters of public record. See Pension Benefit Guar. Corp. v. White Consol. Indus. Inc., 998 F.2d 1192, 1196 (3d Cir.1993). A. Claims Against Governor Rendell Rivera contends that Governor Rendell violated his constitutional rights 708when Rivera was detained on July 31, 2006, pursuant to the first Governor’s Warrant. Rivera claims that Governor Rendell issued the warrant “with the knowledge that it had no basis in law or fact.” Amended Complaint ¶ 52. The District Court properly dismissed Rivera’s claims against Governor Rendell. As the District Court correctly observed, there is no dispute that Florida’s extradition demand was facially valid. See 42 Pa.C.S. § 9124. Pursuant to Pennsylvania law, Governor Rendell was required to accept that facially valid extradition request and issue a Governor’s Warrant. See 42 Pa.C.S. §§ 9123, 9128; see also Puerto Rico v. Branstad, 483 U.S. 219, 227, 107 S.Ct. 2802, 97 L.Ed.2d 187 (1987) (“[T]he commands of the Extradition Clause are mandatory, and afford no discretion to the executive officers or coui'ts of the asylum State.”). A “governor’s role in evaluating extradition requests and issuing arrest warrants consequent to them is judicial in nature and therefore entitled to absolute immunity from suit.” White v. Armontrout, 29 F.3d 357, 360 (8th Cir. 1994); see also, e.g., Overall v. Univ. of Penna., 412 F.3d 492, 497 (3d Cir.2005) (discussing the meaning of “quasi-judicial” proceedings, and providing as one example “the governor of a State of the United States engaged in an extradition hearing”); Miller v. Davis, 521 F.3d 1142, 1147 (9th Cir.2008) (governor entitled to absolute immunity when acting in a quasi-judicial role); Dababnah v. Keller-Burnside, 208 F.3d 467, 471-72 (4th Cir.2000) (extradition is intimately associated with judicial phase of criminal process). B. Claims Against Defendant Ricca Prosecutors are generally immune from liability for damages in actions brought pursuant to § 1983. See Imbler v. Pachtman, 424 U.S. 409, 430, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976). Although prosecutorial immunity is not unlimited in scope, it clearly applies when prosecutors are acting in the role of advocates on behalf of the state. See id.; see also Odd v. Malone, 538 F.3d 202, 208 (3d Cir.2008). Based upon our review of the amended complaint, Rivera’s allegations against Defendant Ricca are limited to actions concerning the initiation (and, after the state court’s grant of habeas corpus relief, re-initiation) of extradition proceedings concerning the charges pending against Rivera in Florida. See Amended Complaint ¶¶ 20, 33. Ricca’s efforts to initiate extradition proceedings against Rivera are prosecutorial in nature and entitle her to immunity from liability. See Ross v. Meagan, 638 F.2d 646, 648-49 (3d Cir. 1981), overruled on other grounds by Neitzke v. Williams, 490 U.S. 319, 328, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989); Waits v. McGowan, 516 F.2d 203, 205 (3d Cir. 1975); see also, e.g., Dababnah, 208 F.3d at 471-72. In addition to monetary damages, Rivera seeks injunctive relief against Defendant Ricca, requesting that “all future detentions ... be done lawfully and in a manner consistent with the preservation of Mr. Rivera’s constitutional rights.” See Amended Complaint ¶¶ 50(c), 59(c). To the extent Rivera’s claim for injunctive relief attempts to obtain an immediate or a speedier release from incarceration, it is barred by Preiser v. Rodriguez, 411 U.S. 475, 476-77, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973). In addition, the claim is moot. In general, a claim becomes moot “when the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome.” Murphy v. Hunt, 455 U.S. 478, 481, 102 S.Ct. 1181, 71 L.Ed.2d 353 (1982). Because there is no dispute that Rivera’s extradition proceedings are concluded, Rivera no longer has a cognizable 709interest in avoiding unconstitutional detentions while awaiting extradition to Florida. Any unrelated future prosecutions or detentions that Rivera might face are far too speculative to warrant an award of injunctive relief. C. Claims Against Defendant Algarin Rivera alleges that Defendant Algarin unconstitutionally detained him after June 4, 2006. Through June 4, 2006, Rivera had been serving a Pennsylvania sentence at SCI-Graterford. On June 5, 2006, Rivera was ordered to appear before the Montgomery County Court of Common Pleas, which ordered him remanded to Montgomery County prison to await extradition to Florida. When Rivera arrived at the Montgomery County prison on June 5, 2006, Algarin could not permissibly release him. As warden of that facility, Algarin was bound to act pursuant to the state court’s commitment order. An “action taken pursuant to a facially valid court order receives absolute immunity from § 1983 lawsuits for damages.”9 Hamilton v. Leavy, 322 F.3d 776, 782-83 (3d Cir.2003); see also Lockhart v. Hoenstine, 411 F.2d 455, 460 (3d Cir.1969). Thus, the District Court properly dismissed Rivera’s § 1983 damages claim concerning this detention. Rivera successfully challenged this detention in a petition for a writ of habeas corpus, which the Montgomery County Court of Common Pleas granted on August 11, 2006.10 Thus, as of August 11, 2006, the commitment order was no longer facially valid, and did not provide a further basis for detaining Rivera. Presumably pursuant to that order, Rivera’s release paperwork was completed on Tuesday, August 15, 2006. However, on July 31, 2006, prior to the grant of habeas corpus relief, Governor Rendell issued a Governor’s Warrant for Rivera’s detention based upon an extradition package sent by Florida’s governor. Therefore, the July 31, 2006, Governor’s Warrant provided an independent basis for continuing to detain Rivera.11 Rivera claims that this detention was unconstitutional. Once again, however, Defendant Algarin is entitled to immunity from Rivera’s § 1983 claim. Under the circumstances, it was reasonable to detain Rivera pursuant to the facially valid Governor’s Warrant. See Harlow v. Fitzgerald, 457 710U.S. 800, 815-16, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982); Baker v. McCollan, 443 U.S. 137, 142-145, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979).12 III. Conclusion For the foregoing reasons, we agree with the District Court’s conclusion that Rivera’s amended complaint fails to state a claim upon which relief can be granted. We will affirm the District Court’s order dismissing the complaint. . In Florida in 2002, Rivera was charged with various crimes. After he was released on bond, Rivera failed to appear for trial. . The Court of Common Pleas held that the UCEA, 42 Pa.C.S. § 9121 et seq., rather than the Interstate Agreement on Detainers ("IAD”), 42 Pa.C.S. § 9101 et seq., applied, because Rivera was not yet serving a sentence when Florida issued the detainers. See 42 Pa.C.S. § 9140 ("If a criminal prosecution has been instituted against such person under the laws of this Commonwealth and is still pending, the Governor ... [may] hold him until he has been tried and discharged or convicted and punished in this Commonwealth.”). . Rivera appealed, arguing that the Court of Common Pleas should have dismissed the Florida charges because Florida violated his right to a speedy trial. The Superior Court held that it lacked jurisdiction to dismiss criminal charges filed in Florida. . Rivera moved in Florida state court for consideration nolle prosequi, claiming that the Florida criminal charges should have been dismissed because Florida violated his right to a speedy trial. The Florida court denied the motion, holding that Rivera was not entitled to the benefit of the speedy trial rule until he either returned to Florida or requested disposition of the charges in compliance with the IAD. Rivera also sought mandamus relief, 706which the Florida court denied for essentially the same reasons. . Rivera was held under the UCEA because he was no longer serving a sentence on June 5, 2006. . Although the District Court refers to the commitment order's date as June 2, 2006, this appears to be an error. . "[T]he abstract value of a constitutional right may not form the basis for § 1983 damages." Memphis Community Sch. Dist. v. Stachura, 477 U.S. 299, 308, 106 S.Ct. 2537, 91 L.Ed.2d 249 (1986). Rather, "substantial damages may only be awarded to compensate for actual injury suffered as a result of the violation of a constitutional right.” Allah v. Al-Hafeez, 226 F.3d 247, 250 (3d Cir.2000), citing Stachura, 477 U.S. at 308, 106 S.Ct. 2537. Although we need not reach the issue, we express serious doubt as to whether Rivera pled any entitlement to compensatory damages. . Punitive damages are available under § 1983 "when the defendant's conduct is shown to be motivated by evil motive or intent, or when it involves reckless or callous indifference to the federally protected rights of others." Smith v. Wade, 461 U.S. 30, 56, 103 S.Ct. 1625, 75 L.Ed.2d 632 (1983). Rivera’s amended complaint raised no allegations to support a punitive damages award. . We address only Rivera's damages claims. Rivera has no viable claim for injunctive relief against Defendant Algarin, for the same reasons he has no viable claim for injunctive relief against Defendant Ricca. See supra. . The Court of Common Pleas struggled with Pennsylvania case law holding that an individual cannot be "re-arrested” if not first discharged from custody. See Coffman, 361 A.2d at 654. For purposes of Rivera’s § 1983 action, we question whether this technical requirement of Pennsylvania procedure rises to the level of a due process deprivation. See, e.g., Barton v. Norrod, 106 F.3d 1289, 1295 (6th Cir.1997) ("[Fjailure to comply with established procedures does not deprive the fugitive of any protected right."). Moreover, there is no dispute that the Commonwealth could have cured the arguable procedural flaw by releasing and immediately re-arresting Rivera. "[T]o establish a § 1983 claim for monetary relief, including a showing of damages, [plaintiff] will have to prove that he suffered some deprivation of liberty greater than that which he would have suffered through extradition in full compliance with the UCEA.” Knowlin v. Thompson, 207 F.3d 907, 909 (7th Cir.2000). Thus, if Rivera stated a due process claim at all, it appears he would be entitled to no more than nominal damages. See Farrar v. Hobby, 506 U.S. 103, 112, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992); see also, e.g., Harden v. Pataki, 320 F.3d 1289, 1300-01 (11th Cir.2003). .We surmise that the completion of Rivera's release paperwork was an effort to satisfy Pennsylvania's procedural requirements under Coffman, 361 A.2d at 654. . Rivera challenged this detention via another successful state court petition for a writ of habeas corpus. Once he was granted habeas corpus relief, the Governor’s Warrant no longer provided a facially valid basis for detaining Rivera. As a result of the grant of habeas corpus relief, Rivera was discharged from the Montgomery County prison on September 20, 2006. Although he was immediately re-arrested in a nearby prison parking lot and detained on another criminal complaint charging him with being a fugitive from justice in Florida, Rivera does not challenge the September 20, 2006, detention that ultimately led to his extradition to Florida.	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8473822/	OPINION OF THE COURT FUENTES, Circuit Judge: Appellants Carlos and Colleen Rodriquez appeal the final order of the District Court, which granted the City of Philadelphia’s motion for summary judgment. At the time when the events underlying this lawsuit took place, Rodriquez1 was a police officer employed by the City of Philadelphia (the “City”). On September 7, 2005, Rodriquez was working the evening shift at the jail in the Ninth Police District when he was attacked by a prisoner. He filed this lawsuit, alleging that the City violated his substantive due process rights by exposing him to dangerous conditions of employment. The District Court granted the City’s motion for summary judgment, finding that Appellants failed to prove that the City violated Rodriquez’s constitutional rights. We will affirm. I. Because we write primarily for the parties, we only review the facts and procedural history necessary to resolve the issues raised on appeal. On the evening of September 7, 2005, Rodriquez was instructed to report to the Ninth Police District in order to cover the Closed Circuit Television Viewing (“CCTV”) section of the jail, where inmates wait to make appearances in court via video. Pursuant to a policy announced by the Commanding Officer of the District the week prior to the attack on Rodriquez, four officers were required to work in the CCTV section at any given time. When Rodriquez arrived for his shift, however, he believed that he was the only officer assigned to the section.2 Rodriquez contacted a supervisor, Officer Lee, and expressed concerns over the inadequate coverage in the CCTV section. Lee explained that there was insufficient manpower to put additional officers in the CCTV area. Rodriquez continued to protest because he did not feel safe, and Lee informed Rodriquez that he would “see what [he] can do.” (App.229a.) During Rodriquez’s shift, two prisoners — Brandon Cottle and Shawn Pendleton — were detained in the CCTV section’s Cell 8, a “suicide cell” covered in clear plexiglass that allowed officers to observe the actions of the detainees inside the cell. As Rodriquez tried to do paperwork, Cottle made repeated requests for water. Rodriquez initially ignored Cottle’s requests, but ultimately agreed to provide Cottle with water. On account of the cell’s design, Rodriquez was unable to slip water through the food intake slot, and had to open the cell door to give the water to Cottle. Before he opened the door, Rodriquez ordered Cottle’s cellmate, Pendleton, to sit down; 712Pendleton refused to comply at first, but eventually sat. After Rodriquez opened the door and gave Cottle the water, Pendleton “came out of nowhere” and stood in the cell doorway. (App.233a.) Rodriquez ordered Pendleton to go back into the cell, Pendleton refused, and a struggle between the two men ensued. During the confrontation, Pendleton picked Rodriquez up and threw him into the bars of the cell, causing Rodriquez momentarily to lose consciousness. Eventually, Officer Holden arrived and, in an apparent effort to contain the situation, shut the sliding door, locking Rodriquez in the cell with Cottle and Pendleton. Finally, Pendleton released Rodriquez, and Rodriquez was able to exit the cell. Rodriquez sustained severe injuries as a result of the attack. Rodriquez commenced this lawsuit in August 2007, asserting that the City violated his substantive due process rights by creating the dangerous employment conditions to which he was exposed. The City moved for summary judgment. The District Court granted the motion, concluding that “a government employer owes no constitutional obligation to provide its employees with minimum levels of safety and security in the workplace,” (App.4a) (citing, inter alia, Collins v. City of Harker Heights, 503 U.S. 115, 127, 112 S.Ct. 1061, 117 L.Ed.2d 261 (1992)), and that Rodriquez had failed to prove that a municipal policy or custom had caused his injuries. Rodriquez took this timely appeal. II. The District Court had jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343 and we have jurisdiction under 28 U.S.C. § 1291. We review a grant of summary judgment de novo, applying the same standard as the district court. Antonelli v. New Jersey, 419 F.3d 267, 272 (3d Cir.2005). Summary judgment is appropriate if, viewing the record in the light most favorable to the non-movant, there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). We agree with the District Court’s conclusion that although “[t]he facts of the case are indeed unfortunate,” they do not give rise to a substantive due process claim against the City. (App.3a.) We first observe that the Supreme Court has long held that “[njeither the text nor the history of the Due Process Clause supports ... [a] claim that the governmental employer’s duty to provide its employees with a safe working environment is a substantive component of the Due Process Clause.” Collins, 503 U.S. at 126, 112 S.Ct. 1061. This holding stems from the well-settled principle that “the Due Process Clause does not impose an affirmative obligation on the state to protect its citizens.” Kaucher v. County of Bucks, 455 F.3d 418, 431 (3d Cir.2006) (citing DeShaney v. Winnebago County Dept. of Social Services, 489 U.S. 189, 195-96, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989)). As we have recognized, however, under the exception to DeShaney known as the state-created danger doctrine, “when state authority is affirmatively employed in a manner that injures a citizen or renders him more vulnerable to injury from another source than he or she would have been in the absence of state intervention,” such affirmative conduct may give rise to a claim under the Due Process Clause. Bright v. Westmoreland County, 443 F.3d 276, 281 (3d Cir.2006) (internal quotations and citations omitted, emphasis added); see also Sanford v. Stiles, 456 F.3d 298, 304 (3d Cir.2006) (under the state-created danger doctrine, “liability may attach where the state acts to create or enhance a danger that deprives the plaintiff of his or her Fourteenth Amendment right to substantive due process”) (emphasis in origi713nal). To prevail on a state-created danger claim, a plaintiff must establish the following four elements: (1) the harm ultimately caused was foreseeable and fairly direct; (2) a state actor acted with a degree of culpability that shocks the conscience; (3) a relationship between the state and the plaintiff existed such that the plaintiff was a foreseeable victim of the defendant’s acts ...; and (4) a state actor affirmatively used his or her authority in a way that created a danger to the citizen or that rendered the citizen more vulnerable to danger than had the state not acted at all. Bright, 443 F.3d at 281 (quotations and footnotes omitted). As in Bright, “we find it unnecessary to consider anything other than the fourth essential element of a meritorious state-created danger claim,” id., because the record herein fails to suggest that the City’s affirmative use of state authority caused the danger Rodriquez encountered. At base, Rodriquez’s claim turns on his contention that the City could have done more to prevent dangerous circumstances from arising in the CCTV area, or that the City was negligent in enforcing certain security measures that would have enhanced officer safety.3 Such contentions are insufficient as a matter of law to establish that the City’s affirmative exercise of authority created the danger to which Rodriquez was exposed. See Kaucher, 455 F.3d at 433. We have previously considered similar attempts by litigants to “recharacterize [a state actor’s] failures as affirmative actions,” and have consistently held that a plaintiff must show more than the government’s “failure to prevent” an injury in order to prevail on a state-created danger claim. Sanford, 456 F.3d at 312 (quotations omitted); see Kaucher, 455 F.3d at 433 (employee’s contention that “defendants failed to act affirmatively to improve conditions at the jail,” although “frame[d] ... in terms of actions affirmatively creating dangerous conditions and affirmatively misrepresenting dangers,” failed to establish the affirmative act element). Rodriquez’s claim boils down to a charge that “[t]he city breached its duty of care to ... [him] by failing to provide a safe work environment,” and, as a matter of law, such a charge does not suffice to establish a due process violation.4 Collins, 503 U.S. at 128, 112 S.Ct. 1061. We conclude, in sum, that the District Court correctly determined that Rodriquez failed to prove that the City violated his constitutional rights. III. For the foregoing reasons, we will affirm the District Court’s grant of summary judgment in favor of the City. . For simplicity, we refer to Mr. Rodriquez as "Rodriquez" or "Appellant.” Mr. Rodriquez’s wife, Colleen Rodriquez, is a party to this action, but she asserts only a loss of consortium claim which is derivative of her husband’s claim. See O'Connor v. City of Newark, 440 F.3d 125, 130 n. 8 (3d Cir.2006). . Rodriquez’s belief that he was the only officer working in the CCTV area turns out not to have been correct. Officer Holden was also on duty in the section during Rodriquez’s shift, although Rodriquez was not aware of his presence when he spoke to Officer Lee. Another officer, Officer Sabalski, was supposed to be in the CCTV section as well, but had either not shown up for work or had stepped out of the building. . In support of his claim, Rodriquez points to a report prepared by his expert witness, Roosevelt L. Poplar, which identifies multiple failings Mr. Poplar attributes to the City: the City permitted mentally unstable prisoners to be housed in a poorly designed suicide cell, it failed to correct inadequate staffing in the CCTV section, it allowed officers to store tasers on a different floor from the CCTV section, and it tolerated the sub-optimal placement of a video monitor. (App.209a.) . We note that Officer Holden appears to have taken an affirmative act when he locked Rodriquez in the cell with Pendleton. However, Holden is not a defendant to this action, and there is no suggestion whatsoever from the record before us that in closing the door to the cell, he was acting pursuant to a municipal policy or custom. See Monell v. Dep't of Soc. Servs., 436 U.S. 658, 691, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978).	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8473824/	OPINION McKEE, Circuit Judge. Christine and James Craig appeal the district court’s order granting summary judgment in favor of the defendants on the tort claim they filed to recover for injuries Christine suffered after slipping and falling at the defendants’ retail shopping mall. We will affirm. As we write primarily for the parties who are familiar with this case, we need not recite the procedural or factual background. Moreover, we have reviewed the thoughtful Memorandum filed by the Hon. Eduardo Robreno on May 23, 2008, 555 F.Supp.2d 547, explaining why there is no genuine issue of material fact as to defendants’ liability and why the defendants are therefore entitled to judgment as a matter of law. We can add little to Judge Robreno’s discussion of this case and we will therefore affirm the order he entered on May 23, 2008, granting summary judgment in favor of Control Building Services, and Franklin Mills Associates, L.P., and against Christine and James Craig, substantially for the reasons set forth therein.	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8473826/	OPINION PER CURIAM. Hendra Ugahary Ngo, an Indonesian native and citizen, petitions for review of a 716final order of the Board of Immigration Appeals (“the Board”), affirming the Immigration Judge’s (“IJ”) denial of his applications for asylum, withholding of removal and relief under the Convention Against Torture (“CAT”). For the following reasons, we will deny the petition. The Immigration and Naturalization Service placed Ngo in removal proceedings by the issuance of a Notice to Appear (“NTA”) on May 13, 2003. The NTA charged Ngo with being removable pursuant to INA § 237(a)(1)(B), for remaining in the United States without permission of the government. Ngo admitted the factual allegations in the NTA and sought asylum, withholding of removal, and protection from removal under the CAT. Ngo’s written application cited “mistreatment and pressure from people in the government” over the 50 years that he lived in Indonesia as the basis for relief. (A.R. at 432.) In particular, Ngo stated that he experienced discrimination in language, schooling, culture, and government benefits. He also experienced assaults in 1974 and 1978, and property damage in 1983. Ngo testified that he and his family were frequently threatened and harassed by Muslims both because of their Chinese ethnicity and because they were practicing Christians. In 1992 and 1997, Ngo witnessed discrimination and assaults against other ethnic Chinese. He also cited the May 1998 riots in which natives violently assaulted the persons and property of ethnic Chinese. During this period, although his family found safe refuge, Ngo testified that his home was damaged, his cars burned, and that he sustained injuries to his hand when it was hit with a ten-pound brick. Ngo testified that during church bombings in November 1998, his eyeglasses were broken. Worse, a man with whom he lived was murdered. In 1999, churches were bombed, causing car glass to shatter and cutting Ngo. According to the IJ’s summary of Ngo’s testimony, Ngo’s church remained unharmed, as did his family. At Ngo’s first hearing, the IJ determined that Ngo had missed the one-year filing deadline for his asylum application. With regard to his withholding of removal and CAT claims, the IJ found Ngo incredible based on an omission in his testimony as compared to his written application. The IJ further found that Ngo failed to provide independent corroborating evidence in support of his testimony. On February 25, 2005, the Board affirmed the IJ’s finding with regard to the timeliness of Ngo’s asylum application. With regard to Ngo’s remaining claims for relief, the Board found that the sole omission relating to his son’s current fear of harm was not sufficient to support an adverse credibility finding. The Board remanded the case to the IJ to give Ngo the opportunity to present additional evidence. On remand, the IJ again made an adverse credibility finding. The Board dismissed Ngo’s appeal on March 4, 2008, without addressing the IJ’s adverse credibility determination. The Board concluded that the alleged events did not rise to the level of persecution on account of a protected ground or demonstrate that Ngo faced a probability of future persecution if he returned to Indonesia. The Board also determined that Ngo failed to show that he was more likely than not to face torture on his return to Indonesia. Ngo timely filed a petition for review in this Court. We have jurisdiction pursuant to 8 U.S.C. § 1252(a). We uphold the Board’s determinations if they are supported by reasonable, substantial and probative evidence on the record considered as a whole. Yusupov v. Att’y Gen., 518 F.3d 185, 197 (3d Cir.2008). Under the substantial evidence standard, “the BIA’s finding must be upheld unless the evidence not only 717supports a contrary conclusion, but compels it.” Abdille v. Ashcroft, 242 F.3d 477, 483-84 (3d Cir.2001) (citing INS v. Elias-Zacarias, 502 U.S. 478, 481 n. 1, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992)). To be eligible for withholding of removal, petitioners must demonstrate that “there is a greater-than-fifty-percent chance of persecution” in Indonesia based on one of the protected grounds. Senathirajah v. INS, 157 F.3d 210, 215 (3d Cir.1998); see also 8 U.S.C. § 1231(b)(3)(C). For relief under the CAT, Ngo must demonstrate that it is more likely than not that he would be tortured if removed to Indonesia. See 8 C.F.R. § 208.16(c)(2). The acts of torture must be inflicted “by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.” 8 C.F.R. § 1208.18(a)(1).1 Ngo argues that the IJ overlooked critical evidence by concluding that he failed to establish past persecution and fear of future persecution. Specifically, Ngo claims that he has demonstrated eligibility for withholding of removal based on aggregated incidents of past mistreatment in Indonesia. Ngo testified that during the riots of 1998, an organization of extremists comprised primarily of native Muslims burned down the Christian church he attended. Ngo also witnessed native Muslims burning down the homes of Chinese Christians near his home in Jakarta. Ngo testified to a code that was used to intimidate and threaten Christians, in which red and yellow colorings were painted on the homes of Chinese Christians. Red coloring on the home signified that Christians lived in the home and should be killed. A Christian home with yellow coloring indicated a female Christian resided in the home and should be raped. Ngo stated that he was affected by these actions because he had a female daughter and yellow coloring was placed on his house. Ngo further testified that, when he lived in Indonesia he was often targeted while driving his car. During one incident, unidentified assailants in a truck threw stones at his car. In another incident, assailants “hit” Ngo while he was stopped at a traffic light and his eyeglasses were broken. (A.R. at 72.) In addition to the physical incidents, Ngo testified that the government discriminated against him by refusing to provide him with documents because of his Christian religion. Ngo’s claims of past persecution must fail because he has not shown that the incidents he describes were committed by the government or by forces the government is unable or unwilling to control.2 See Valdiviezo-Galdamez v. Att’y Gen., 502 F.3d 285, 288 (3d Cir.2007) (citation and internal quotation marks omitted).3 Further, he has not demonstrated that the incidents he experienced were motivated by an anti-Christian or anti-Chinese animus. See 8 U.S.C. § 1101(a)(42)(A) (requiring that persecution be “on account of’ a petitioner’s religion or ethnicity); see *718also Lie v. Ashcroft, 396 F.3d 530, 535 (3d Cir.2005). Finally, although the incidents Ngo describes were indeed unfortunate, they are not the type of harm recognized as constituting persecution under our precedent. See Fatin v. INS, 12 F.3d 1233, 1240 (3d Cir.1993) (defining persecution as “threats to life, confinement, torture, and economic restrictions so severe that they constitute a threat to life or freedom.”). The Board’s rejection of Ngo’s claim to withholding of removal based on fear of future persecution is supported by substantial evidence because he had not presented evidence of his own persecution, or a pattern or practice of persecution of ethnic Chinese or Christians in Indonesia. See Wong v. Att’y Gen., 539 F.3d 225, 232 (3d Cir.2008). In order to show a well-founded fear of future persecution the applicant must show a well founded subjective fear, “supported by objective evidence that persecution is a reasonable possibility.” Chang v. INS, 119 F.3d 1055, 1066 (3d Cir.1997). The objective prong is satisfied either by showing that the applicant would be individually singled out for persecution, or that “ ‘there is a pattern or practice in his or her country of nationality ... of persecution of a group of persons similarly situated to the applicant on account of race, religion, nationality, membership in a particular social group, or political opinion.’ ” Sukwanputra v. Gonzales, 434 F.3d 627, 637 (3d Cir.2006) (quoting 8 C.F.R. § 208.13(b)(2)(iii)(A)). Ngo provides no evidence to refute the finding that the record reflects steps by the Indonesian government to control and diffuse violence against Christians like Ngo.4 (A.R. at 51-53.). Thus, Ngo has failed to establish either past or a clear probability of future persecution based on one of the protected grounds. See INS v. Stevic, 467 U.S. 407, 430, 104 S.Ct. 2489, 81 L.Ed.2d 321 (1984); see also 8 C.F.R. § 1208.16(b). The Board’s rejection of Ngo’s CAT claim also finds substantial support. Ngo has not presented any evidence that upon his return to Indonesia he would be tortured by the government or that the government would acquiesce in any torture of him by third parties. Thus, Ngo is not eligible for protection under the CAT. Pierre v. Att’y Gen., 528 F.3d 180, 190 (3d Cir.2008) (en banc). For the foregoing reasons, we will deny Ngo’s petition. . Ngo does not contest the BIA's timeliness determination with regard to his asylum application. . The only instance in which Ngo implicates the Government's involvement is with regard to the discrimination he faced when it refused to issue him certain requested documents. Such acts do not constitute persecution or torture. .While the Court in Valdiviezo-Galdamez was referring to persecution in the context of an asylum claim, the same substantive criteria apply to determining persecution for purposes of withholding of removal. Wakkary v. Holder, 558 F.3d 1049, 1053 (9th Cir.2009). . Ngo relies on Sael v. Ashcroft, 386 F.3d 922 (9th Cir.2004), for the proposition that “the more serious and widespread the threat to the group in general, the less individualized the threat of persecution needs to be.” Sael, 386 F.3d at 925 (internal quotation marks and citations omitted). This reasoning is part of the Ninth Circuit's "disfavored group” rationale which we have declined to follow. See Lie v. Ashcroft, 396 F.3d 530, 538 n. 4 (3d Cir.2005).	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8473828/	OPINION PER CURIAM. Regonaldo Demelio is an inmate currently serving a federal sentence at FCIAllenwood. On September 14, 2009, Demelio filed this pro se mandamus petition, requesting the following relief: that we (1) “oversee” his collateral attack proceedings in the United States District Court for the Western District of Pennsylvania, brought pursuant to 28 U.S.C. § 2255; (2) appoint him counsel in those proceedings; and (3) order the District Court to rule on his § 2255 motion. We will deny the petition. I. Mandamus is a drastic remedy available only in the most extraordinary of circumstances. See In re Diet Drugs Prods. Liab. Litig., 418 F.3d 372, 378 (3d Cir.2005). It is not a substitute for an appeal. See In re Chambers Dev. Co., 148 F.3d 214, 226 (3d Cir.1998). To demonstrate that mandamus is appropriate, a petitioner must establish that he has a “clear and indisputable” right to issuance of the writ. Madden v. Myers, 102 F.3d 74, 79 (3d Cir.1996). II. As a general rule, the manner in which a court disposes of cases on its docket is within its discretion. See In re Fine Paper Antitrust Litig., 685 F.2d 810, 817 (3d Cir.1982). Indeed, given the discretionary nature of docket management, there can be no “clear and indisputable” right to have the district court handle a case on its docket in a certain manner. See Allied Chemical Corp. v. Daiflon, Inc., 449 U.S. 33, 36, 101 S.Ct. 188, 66 L.Ed.2d 193 (1980). Nonetheless, mandamus may be warranted where a district court’s delay is *720tantamount to a failure to exercise jurisdiction. See Madden, 102 F.3d at 79. This case, however, does not present such a situation. Demelio filed his § 2255 motion to vacate his sentence and conviction on August 12, 2008. After the District Court granted its motion for a time extension, the Government filed a response on January 20, 2009, 2009 WL 145949. Demelio filed his reply on February 12, 2009. Only eight months have passed since then, during which time Demelio has filed several motions with the District Court. Given these facts, we do not find any delay by the District Court in adjudicating Demelio’s § 2255 motion to constitute a failure to exercise its jurisdiction. We are confident that the District Court will address the motion appropriately in due course. III. Like docket management, the decision to appoint counsel in proceedings brought under § 2255 is also a matter of discretion and, as result, there is no “clear and indisputable” right to that relief. See Pennsylvania v. Finley, 481 U.S. 551, 555, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987); see also 18 U.S.C. § 3006A(a)(2)(B) ([whenever ... the court determines that the interests of justice so require, representation may be provided in a § 2255 proceeding) (emphasis added). As we speak, Demelio’s second motion to appoint counsel is pending before the District Court1, and the District Court alone will assess the merits of that motion at this stage. Therefore, we will not direct the District Court to appoint Demelio counsel in his § 2255 proceedings. Nor will we accept Demelio’s invitation to “oversee” the proceedings before the District Court; the occasion for our review of the proceedings would be when an appeal is taken. Accordingly, we will deny Demelio’s mandamus petition. . The District Court denied Demelio’s first motion to appoint counsel as premature because the Government had not yet filed its response to his § 2255 motion.	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8473831/	OPINION OF THE COURT FUENTES, Circuit Judge: Appellant Sherri Koehnke appeals from the final order of the District Court, which granted Appellees’ motion for summary judgment. Ms. Koehnke filed this lawsuit against the City of McKeesport (the “City”) and two of its police officers, alleging that the police botched their investigation into her daughter’s disappearance and thereby violated Ms. Koehnke’s constitutional rights. The District Court granted the defendants’ motion for summary judgment, concluding that Ms. Koehnke’s claims were time-barred. We will affirm. I. We write primarily for the parties, who are familiar with the background of this case, and so we review only those facts necessary to our analysis. Ms. Koehnke is the mother of Tanya Kach, who, in early 1996, resided with Ms. Koehnke’s ex-husband, Jerry Kach, Jr., in McKeesport, 722Pennsylvania. On February 10, 1996, then-fourteen-year-old Tanya ran away from home. Unbeknownst to her parents, Tanya had developed an intimate relationship with Thomas Hose, a thirty-seven-year-old security guard at her school, and on the day she left Mr. Kach’s residence, Tanya moved in with Mr. Hose and his parents without informing anyone of her whereabouts. After Ms. Koehnke learned that her daughter had gone missing, she noticed Mr. Hose’s telephone number on her telephone bill for the date when Tanya had last visited her home. Ms. Koehnke called Mr. Hose to ask him if he knew anything about Tanya’s disappearance, but Mr. Hose told her that he did not know Tanya and knew nothing about her whereabouts. After Ms. Koehnke spoke with Mr. Hose, she and Mr. Koehnke visited the McKeesport Police Department, where she spoke with Officer Elias. Ms. Koehnke informed Officer Elias that Tanya was friends with Mr. Hose and that Tanya had called him from Ms. Koehnke’s house before her disappearance. Ms. Koehnke also told Officer Elias that she had called Mr. Hose to ask if he knew anything about her daughter’s whereabouts, and that he denied knowing Tanya at all. Police investigators paid a visit to Mr. Hose’s residence; the officers spoke with Mr. Hose but did not enter the premises because Mr. Hose told them that his parents were sleeping inside. In 1998 or 1999, Ms. Koehnke again informed the McKeesport Police Department that she suspected that Mr. Hose was involved in Tanya’s disappearance. The officer she spoke with assured her that the Department had investigated Mr. Hose and had determined that he “ha[d] nothing to do with” Tanya’s disappearance. (App.92.) On March 21, 2006, a decade after she ran away from home, Tanya disclosed her identity to Joe Sparico, the owner of a local convenience store, and informed him of the fact that she had been living in Mr. Hose’s home for the last ten years. Mr. Sparico contacted the authorities, and law enforcement officers removed Tanya from Mr. Hose’s home. In the days following these events, Tanya’s reappearance, and the fact that she had spent a decade living with Mr. Hose, were covered extensively by the local media, and reporters had “camped out” in front of Ms. Koehnke’s house. (App.104.) Ms. Koehnke spoke with Tanya on March 23, 2006, and was reunited with her in person the next day. Ms. Koehnke filed this lawsuit on June 2, 2008, alleging that the City had a policy or custom of failing to train police officers in the handling of missing children cases, as well as a policy or custom of inadequately investigating citizen complaints. She asserts that the defendants violated her due process and equal protection rights. The defendants moved for summary judgment.1 The District Court granted the motion, concluding that the statute of limitations on Ms. Koehnke’s claims expired more than two months before she filed this lawsuit. Koehnke filed this timely appeal. II. The District Court had jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343 and we have jurisdiction under 28 U.S.C. § 1291. Koehnke raises two issues on appeal, one procedural and one substantive. 723She first asserts that the District Court abused its discretion by granting the defendants’ motion for summary judgment before the parties conducted discovery. In addition, she argues that summary judgment was improvidently entered, contending that a factual dispute exists as to the timeliness of her claims. We are not persuaded by either of these arguments, which we address in turn below. “[W]e review a claim that the district court has prematurely granted summary judgment for abuse of discretion.” Bradley v. United States, 299 F.3d 197, 206 (3d Cir.2002) (citation omitted). The Federal Rules of Civil Procedure expressly permit a defendant to move for summary judgment “at any time,” Fed.R.Civ.P. 56(b), whether or not the parties have conducted discovery. If the non-moving party believes that its adversary’s summary judgment motion is premature, that party is not without recourse. A party that “cannot present facts essential to justify its opposition” may—and, indeed, must—“show[] by affidavit,” Fed.R.Civ.P. 56(f) (emphasis added), how evidence of such facts “would preclude summary judgment.” Bradley, 299 F.3d at 206 (citation omitted). We have been clear that “in all but the most exceptional cases, failure to comply with Rule 56(f) is fatal to a claim of insufficient discovery on appeal.” Id. Koehnke’s failure to file a Rule 56(f) affidavit is “fatal” to her contention that the District Court’s entry of summary judgment was premature, as we find no exceptional circumstances to justify her unexplained noncompliance with Rule 56(f).2 Id. Indeed, while Koehnke argues that discovery would have enabled her to prove that it was not until long after Tanya reappeared that Koehnke became aware of the police’s failure to search Hose’s residence, we agree with the City that Koehnke did not need to conduct discovery in order to adduce evidence of what she knew and when she knew it. We find no abuse of discretion in the timing of the District Court’s entry of summary judgment. ? We further conclude that the District Court correctly determined that Ms. Koehnke’s claims are time-barred.3 Claims brought pursuant to 42 U.S.C. § 1983 are subject to the statute of limitations “which the State provides for personal-injury torts,” Wallace v. Kato, 549 U.S. 384, 387, 127 S.Ct. 1091, 166 L.Ed.2d 973 (2007), which in Pennsylvania is two years. See 42 Pa. Con. Stat. Ann. § 5524. Ordinarily, a section 1983 claim accrues at the time when the injury is sustained—that is, “when the plaintiff has a complete and present cause of action.” Wallace, 549 U.S. at 388, 127 S.Ct. 1091 (internal quotations and citations omitted). However, under Pennsylvania’s discovery rule, the accrual of the statute of limitations may be tolled “for situations in which a party, through no fault of ... her own, does not discover her injury until after the statute of limitations normally would have run.” Debiec v. Cabot Corp., *724352 F.3d 117, 129 (3d Cir.2003). As we have explained: For the statute of limitations to run, a plaintiff need not know the exact nature of his injury, as long as it objectively appears that the plaintiff is reasonably charged with the knowledge that he has an injury caused by another.... Moreover, the plaintiff attempting to apply the discovery rule bears the burden of demonstrating that he exercised reasonable diligence in determining the existence and cause of his injury. To demonstrate reasonable diligence, a plaintiff must establish that he pursued the cause of his injury with those qualities of attention, knowledge, intelligence and judgment which society requires of its members for the protection of their own interests and the interests of others. Mest v. Cabot Corp., 449 F.3d 502, 510-11 (3d Cir.2006) (internal quotations and citations omitted). We agree with the District Court that Koehnke’s claims are time-barred. The record shows that as of March 24, 2006 at the latest, Koehnke knew (or had every reason to know) (1) that she had informed the Police Department of the basis of her suspicions concerning Hose, (2) that the Department had assured her that it had investigated Hose and determined that he had nothing to do with Tanya’s disappearance, and (3) that the Department’s determination was erroneous. To the extent that Koehnke sustained a constitutional injury as a result of the allegedly inadequate investigation, she had, by March 24, 2006, “sufficient critical facts to put [her] on notice that a wrong has been committed and that [she] need[ed] investigate to determine whether [she was] entitled to redress.” Debiec, 352 F.3d at 129 (citation omitted). Koehnke, who “bears the burden of demonstrating that [s]he exercised reasonable diligence in determining the existence and cause of [her] injury,” Mest, 449 F.3d at 511, identified no evidence from which a jury might conclude that she exercised such diligence, as the District Court determined. In sum, we agree with the District Court that the statute of limitations on Koehnke’s claims expired on March 24, 2008, more than two months before Koehnke filed her complaint. We will thus affirm the District Court’s summary judgment order. III. For the foregoing reasons, we will affirm the District Court’s grant of summary judgment. . Defendants styled their motion as one seeking dismissal or summary judgment. Because Defendants submitted documentary evidence in support of their motion, and because Ms. Koehnke submitted evidence in opposition thereto, the District Court properly treated the motion as a motion for summary judgment. . Although the brief Koehnke submitted to the District Court noted in passing that the parties had not conducted discovery, we have made clear that an "attorney’s unverified memorandum opposing the motion for summary judgment” cannot substitute for a Rule 56(f) affidavit. Radich v. Goode, 886 F.2d 1391, 1394 (3d Cir.1989). . We review a district court’s order granting summary judgment de novo. See Antonelli v. New Jersey, 419 F.3d 267, 272 (3d Cir.2005). Summary judgment is appropriate if, viewing the record in the light most favorable to the non-movant, there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c).	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8473833/	OPINION OF THE COURT FUENTES, Circuit Judge: James Werner appeals the District Court’s dismissal pursuant to Fed. R. Civ. P. 12(b)(6) of his claim for deprivation of a liberty interest under 42 U.S.C. § 1983 and his pendent state law cause of action for invasion of privacy. For the following reasons, we will affirm the District Court.1 I. Because we write primarily for the parties, we only discuss the facts and proceedings to the extent necessary for resolution of this case. This case presents a series of facts that, while deeply troubling, do not provide a basis for Werner’s Section 1983 claim. On May 12, 2006, Plaintiffs son, James Werner Jr., either committed suicide or died as the result of an accident in the family home.2 Defendant Zachary Lysek, the County Coroner, and his assistant were called to the scene. Photos were taken of the body. These photos ended up in the possession of the deputy coroner’s son, who showed them to fellow students at his high school and posted them on his personal website, with the caption “There is no better way to kill yourself.” After this incident, Lysek called Werner and apologized for the publication of the photos. Werner’s attorney subsequently wrote to the county district attorney requesting an investigation. In a letter in response, the district attorney stated that the actions did not easily fit within a criminal statute. 726Werner then filed his Complaint, alleging violations of his liberty interest in his reputation and good name pursuant to 42 U.S.C. § 1983 and state law claims for invasion of privacy. The District Court dismissed his Amended Complaint on December 21, 2007, 2007 WL 4553702, but granted leave to further amend his pleadings. His Second Amended Complaint was dismissed by the court’s July 8, 2008, 2008 WL 2700287, Order, which is the subject of this appeal.3 II. To bring a claim under 42 U.S.C. § 1983, a plaintiff must show that he was deprived of a federal constitutional or statutory right by a person acting under state law. Elmore v. Cleary, 399 F.3d 279, 281 (3d Cir.2005). Werner’s alleged deprivation of his liberty interest in his reputation relies upon the “stigma-plus” test. Under this test, “to make out a due process claim for deprivation of a liberty interest in reputation, a plaintiff must show a stigma to his reputation plus deprivation of some additional right or interest.” Hill v. Borough of Kutztown, 455 F.3d 225, 236 (3d Cir.2006). Werner raises one issue on appeal, claiming that the District Court erred in holding that he failed to satisfy the “stigma-plus” test. The District Court held that — assuming arguendo that Lysek was grossly negligent in not securing the photos and that this behavior constituted state action — Werner’s pleading still failed to satisfy either prong of the “stigma-plus” test. The “stigma” prong requires that a plaintiff allege that the stigmatizing statement be 1) made public and 2) false. Id. The District Court, deeming the death scene photographs to be the relevant statement, found that Plaintiff failed to allege that these photographs were false. A review of the Second Amended Complaint confirms this conclusion, as Werner declared that the photographs “depict or tend to depict a false situation to third parties who saw the photographs on the internet,” “were misleading” and “fueled the false impression that the Plaintiffs son committed suicide.” (Second Am. Compl. ¶¶ 17, 19.) Nowhere, however, does he allege the photographs were false or elaborate on how they were misleading. According to Werner, the central thrust of his Complaint was that his son did not commit suicide and the website that depicted the photos claimed the exact opposite. This claim is rendered confusing by Werner’s briefs statement of facts, which begins by stating that his son did commit suicide. Regardless of this inconsistency, a close reading of the Second Amended Complaint does not support Werner’s contention that it alleged the website falsely stated that his son had committed suicide. This argument therefore does not alter our review of the District Court’s analysis. Having failed to allege the falsity of the statement at issue, Werner failed to state a claim under the “stigma-plus” test and his Second Amended Complaint was properly dismissed on this basis. The District Court also held that Plaintiff failed to satisfy the “stigma-plus” test’s second prong — the deprivation of an additional right or interest. Werner failed to address this conclusion in his appeal. He does discuss in his brief the nature of privacy and parental rights, but his Second Amended Complaint does not present privacy as the “additional right or interest” necessary to satisfy the “stigma-plus” test. To the extent privacy is discussed, he defines the privacy right at issue as his and 727his family’s right “to enjoy a certain status and reputation in the community.” (Second Am. Compl. ¶ 50.) This is indistinguishable from the stigma or reputation harm component of his claim, and therefore not “additional.” Ultimately, having upheld the court’s determination that Werner did not satisfy the test’s first prong, we need not reach this issue. For the foregoing reasons, we will affirm the District Court. . The District Court had jurisdiction under 28 U.S.C. § 1331. We have jurisdiction pursuant to 28 U.S.C. § 1291. . The facts section of Werner’s brief begins by stating that ”[o]n May 12, 2006, James Werner, Jr., Werner’s son, committed suicide.” (Appellant’s Br. at 4.) However, in his Second Amended Complaint, Werner alleged that “[tjhe Plaintiff does not believe that his son committed suicide, but instead, that his son died as the result of an unfortunate accident.” (Second Am. Compl. ¶ 18.) This distinction is relevant to Werner’s alleged violation of his liberty interest in his reputation. . We exercise plenary review over a district court’s dismissal under Fed.R.Civ.P. 12(b)(6). Atkinson v. LaFayette College, 460 F.3d 447, 451 (3d Cir.2006).	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8473834/	728OPINION OF THE COURT FUENTES, Circuit Judge: Joyce Miller appeals the District Court’s grant of the University of Pittsburgh Medical Center’s (“UPMC”) motion for summary judgment on her claims under the Americans with Disabilities Act (“ADA”) and the Pennsylvania Human Relations Act (“PHRA”). For the following reasons, we will affirm the judgment of the District Court.1 I. Because we write primarily for the parties, we only discuss the facts and proceedings to the extent necessary for resolution of this case. Miller was hired in May 1991 as a surgical technologist by UPMC. She contracted Hepatitis C during her employment and received three separate leaves of absence between 1999 and November 2004 to obtain treatment. Miller’s final treatment rendered the virus non-active and she returned to work in November 2004, but was initially restricted to forty hours each week and eight-hour shifts. Between November 2004 and November 2005, Miller had thirteen unscheduled absences. On April 5, 2005, Miller received a verbal warning for poor attendance, as she had missed nine days of work during the prior twelve months. On June 1, 2005, Miller received a written warning for missing ten days; on August 18, 2005, she received a three-day suspension because she had missed twelve days; and on December 1, 2005, she received a five-day suspension, pending termination, for having missed thirteen days. A report documenting the reasons Miller offered when calling in absent indicates that she never attributed her absences to Hepatitis C, instead typically stating she was not feeling well, vomiting, sick, or ill. She was terminated effective December 8, 2005 for excessive absenteeism in violation of UPMC’s Absence and Tardiness policy. Miller brought an action asserting claims for discrimination, failure to accommodate, and retaliation under the ADA, as well as other claims that are not the subject of this appeal.2 The District Court concluded that Miller could not make out a prima facie case of disability discrimination as she had not shown that she was qualified to perform the essential functions of her job, which the court found included attendance and being able to “take calls and work shifts as required.” Accordingly, on July 10, 2008, the court granted summary judgment to UPMC on Miller’s federal claims and, declining to exercise supplemental jurisdiction, dismissed her state-law claims without prejudice. On appeal, Miller argues that the District Court erred in (1) determining that she is not a qualified individual within the meaning of the ADA; and (2) finding that UPMC followed it own policies regarding absence and tardiness.3 II. To state a claim under the ADA, an individual must (1) be disabled within the meaning of the ADA; (2) be otherwise qualified to perform the essential functions of the job, with or without reasonable accommodations; and (3) have suffered an 729adverse employment decision. The District Court found that Miller failed to satisfy the second of these elements. In determining what constitutes the essential functions of a position, courts consider factors including the employer’s judgment of essential functions and a written description of the position. See Deane v. Pocono Med. Ctr., 142 F.3d 138, 146 (3d Cir.1998) (en banc). The District Court noted that Miller’s supervisor identified attendance and taking call as essential functions of her position. The “Responsibilities” section of her job description includes “Take call and work shifts as required.” A footnote identifies these responsibilities as “principal functions.” Attendance can constitute an essential function under the ADA and the District Court properly determined it was essential to Miller’s position as an emergency room technician. See, e.g., Jovanovic v. In-Sink-Erator Div. of Emerson Elec. Co., 201 F.3d 894, 899-900 (7th Cir.2000) (“Common sense dictates that regular attendance is usually an essential in most every employment setting; if one is not present, he is usually unable to perform his job.”) Although we have not directly ruled on the issue, we have summarily affirmed two district court cases that have held accordingly. See Santiago v. Temple Univ., 739 F.Supp. 974, 979 (E.D.Pa.1990) aff'd, 928 F.2d 396 (3d Cir.1991); Johnson v. Children’s Hosp. of Phila., Civ. A. No. 94-5698, 1995 WL 338497 at *2 (E.D.Pa. June 5, 1995), aff'd, 79 F.3d 1138 (3d Cir.1996). Given the nature of Miller’s job, assisting during surgery performed in the hospital, we find it evident that attendance is an essential element of this position. Plaintiff did not provide evidence of a reasonable accommodation that would enable her to perform this essential function. Accordingly, we will affirm the District Court’s determination. Even assuming, arguendo, that Miller were capable of performing the essential functions of her job, we would still affirm the judgment of the District Court. When a plaintiff makes out a prima facie case of ADA discrimination, “the burden shifts to the defendant ‘to articulate some legitimate, nondiscriminatory reason for the employee’s rejection.’ ” Shaner v. Synthes, 204 F.3d 494, 500 (3d Cir.2000) (quoting McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)). Here, UPMC cited Miller’s absences as the nondiscriminatory reason for firing her. Miller claims, unpersuasively in our view, that UPMC failed to follow its own written procedures. Yet Miller offers no evidence that she was treated any differently than non-disabled employees, who had similar records of absenteeism. Accordingly, we find no material issue of fact in dispute regarding the legitimacy of UPMC’s nondiscriminatory reason for the termination. For the foregoing reasons, we will affirm the District Court. . The District Court had jurisdiction under 28 U.S.C. § 1331. We have jurisdiction pursuant to 28 U.S.C. § 1291. . Since Pennsylvania courts interpret the PHRA in accord with the ADA, our analysis will apply to Miller's claims under both statutes. See Buskirk v. Apollo Metals, 307 F.3d 160, 166 n. 1 (3d Cir.2002). .We exercise plenary review over a district court's summary judgment ruling. Township of Piscataway v. Duke Energy, 488 F.3d 203, 208 (3d Cir.2007).	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8473836/	OPINION OF THE COURT FUENTES, Circuit Judge: Appellant Michael Jones pled guilty to a number of offenses involving cocaine base (“crack”). As he had a prior felony drug conviction, he was subject to a statutory mandatory minimum sentence of twenty years. He also faced a concurrent five-year mandatory minimum sentence for use of a firearm in furtherance of drug trafficking. At sentencing, based on the substantial assistance provided by Jones, the government moved for a downward departure under U.S.S.G. § 5K1.1 and for a departure from the mandatory minimum sentence pursuant to 18 U.S.C. § 3553(e). The District Court granted the motion and sentenced Jones to 72 months’ imprisonment. Thereafter, Jones filed a motion for sentence reduction pursuant to 18 U.S.C. § 3582(c)(2), arguing that he was entitled to resentencing based on a recent amendment to the Sentencing Guidelines that lowered the base offense levels applicable to crack offenses. The District Court denied the motion, holding that Jones was ineligible for a sentence reduction as he was sentenced based on the statutory mandatory minima, not based on the crack Guidelines range. For the reasons that follow, we will affirm the District Court.1 I. Because we write primarily for the parties, we only discuss the facts and proceedings to the extent necessary for the resolution of the case. On September 15, 2005, appellant Michael Jones pled guilty to one count of conspiracy to distribute crack and marijuana (Count 1); two counts of distribution of 731marijuana (Counts 6 and 7); one count of distribution of crack (Count 9); one count of possession of crack with intent to distribute (Count 12); one count of possession with intent to distribute crack within 1,000 feet of a school (Count 18); one count of possession of a firearm by a convicted felon (Count 20); and one count of use of a firearm in furtherance of drug trafficking (Count 21). Prior to Jones’s guilty plea, the government filed a notice of a prior felony drug conviction pursuant to 21 U.S.C. § 851, which increased the statutory mandatory minimum sentence on the conspiracy and crack counts (Counts 1, 9, and 12) to twenty years. Jones also faced a consecutive mandatory minimum five-year sentence for Count 21, use of a firearm in furtherance of drug trafficking, in violation of 18 U.S.C. § 924(c). At the sentencing hearing, the District Court calculated that Jones had an adjusted total offense level of 33 and was in criminal history category II, resulting in a Guidelines range of 151 to 188 months’ imprisonment. The application of the statutory mandatory minima increased the sentence to 240 months’ imprisonment on the conspiracy and crack offenses followed by 60 months on the § 924(e) offense, for a total sentence of 300 months’ imprisonment. The District Court granted the government’s motion for a downward departure under U.S.S.G. § 5K1.1 and for a departure from the mandatory minimum sentence pursuant to 18 U.S.C. § 3553(e) and imposed a total sentence of, inter alia, 72 months’ imprisonment. On May 23, 2008, Jones filed a motion for reduction of sentence pursuant to 18 U.S.C. § 3582(c)(2) on the ground that a recent amendment to the Sentencing Guidelines lowered the base offense levels applicable to crack offenses.2 The District Court denied Jones’s § 3582(c)(2) motion. In appealing that denial, Jones asserts that the District Court erred in the following ways: (1) allowing U.S.S.G. § 1B1.10 to control its interpretation of 18 U.S.C. § 3582(c)(2); (2) holding that, due to the mandatory minima, Jones’s sentence was not “based on a sentencing range that has subsequently been lowered”; and (3) failing to consider the rule of lenity in its decision. II. In relevant part, 18 U.S.C. § 3582(c)(2) provides: [I]n 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 ..., 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. In a decision filed after Jones filed his brief on appeal, United States v. Doe, 564 F.3d 305 (3d Cir.2009), we interpreted the language of § 3582(c)(2) and rejected each of the arguments that Jones raises in his brief. In all material and relevant aspects, the factual and procedural history of Doe is identical to that of the instant case. 732Specifically, the appellants in Doe pled guilty to offenses involving crack, were granted significant substantial-assistance departures below the statutory mandatory minimum sentence, filed motions for sentence reductions pursuant to § 3582(c)(2), and were denied relief. Id. at 307. In affirming the denial of the sentence reduction motions in Doe, we held that “[i]n providing that sentence reductions must be consistent with applicable Sentencing Commission policy statements, § 3582(c)(2) creates a jurisdictional bar to sentence modification when a retroactive amendment does not have the effect of lowering the Guideline sentence.” Id. at 315. Thus, in the context of § 3582(c)(2) proceedings, “the Commission’s policy statements implementing retroactive sentence reduction are binding.” Id. at 310. In Doe, we concluded that as a mandatory minimum sentence “subsume[s]” the initial Guidelines range, the crack amendment to the Sentencing Guidelines did not “have the effect of lowering the Appellants’ applicable Guideline ranges because the mandatory mínimums were unaffected by [the amendment].” Id. at 312. As a result, the district court was barred from reducing appellants’ sentences under § 3582(c)(2). Id,. Appellants in Doe further argued that the rule of lenity applied in their favor. We held that the rule of lenity was inapplicable, concluding that while “the phrases ‘based on’ and ‘the effect of lowering the defendant’s applicable guideline range’ need to be interpreted, ... they do not contain such an ambiguity that the Comb can make no more than a guess as to what Congress intended.” Id. at 315. The reasoning and result in Doe are controlling in the instant case. Accordingly, we will affirm the District Court’s denial of Jones’s § 3582(c)(2) motion. III.’ For the foregoing reasons, we affirm the District Court’s denial of Jones’s motion for modification of sentence pursuant to 18 U.S.C. § 3582(c)(2). . The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. This Court has jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review over an issue of statutory interpretation. United States v. Doe, 564 F.3d 305, 307 n. 2 (3d Cir.2009). . "On November 1, 2007 ... the United States Sentencing Commission passed Amendment 706, which changed U.S.S.G. § 2D 1.1 by lowering the base offense levels for most quantities of crack cocaine by two levels. On December 11, 2007, the Sentencing Commission made Amendment 706 retroactive by including it in the list of retroactive amendments in § IB 1.10(c) of the Guidelines.” Doe, 564 F.3d at 308 (internal citations omitted).	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8473839/	OPINION OF THE COURT STAPLETON, Circuit Judge: Kenneth McKoy pled guilty to possession with intent to distribute heroin, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C) and 18 U.S.C. § 2, and was sentenced to 188 months’ imprisonment. He now appeals his sentence. We will affirm.1 I. Because we write only for the parties, we will recite only those facts necessary to our disposition. A grand jury in the Western District of Pennsylvania returned a seven-count indictment against McKoy. He thereafter entered into a plea agreement with the United States Attorney’s Office. By the terms of the agreement, McKoy would plead guilty to Count Two of the indictment, possession with intent to distribute heroin on June 1, 2005, and the government would withdraw the remaining counts and move to have the Guideline offense level reduced by 3 for acceptance of responsibility. McKoy also agreed to waive his right to appeal absent specific circumstances. The parties agreed that the amount of heroin for sentencing purposes was not less than 100 grams nor more than 400 grams under U.S.S.G. § 2D1.1, that McKoy was a career offender pursuant to U.S.S.G. § 4Bl.l(a), that the offense level was 34 pursuant to U.S.S.G. § 4Bl.l(b)(B), that the ultimate offense level was 31 and the criminal history category was VI, and that the advisory Guidelines range was 188-235 months’ imprisonment. During the change of plea hearing on March 23, 2007, the District Court conducted a plea colloquy, during which McKoy affirmed that he was 23 years of age, had a tenth grade education, and understood the English language. The Court reviewed the various rights that McKoy was giving up by pleading guilty and what the government was required by law to prove if McKoy went to trial. The Court also explained the maximum sentence it was authorized to impose and inquired whether McKoy discussed with his attorney how the guidelines might apply to his case. The Court then asked for the government’s position as to the applicable 734range and inquired whether McKoy understood that he had the right to appeal from any sentence imposed unless he voluntarily gave up that right. The Court noted the existence of the plea agreement and confirmed that McKoy had read and reviewed it with counsel and understood all its terms and contents. The Court then requested that the prosecutor review the substance of the agreement on the record. In describing the waiver, the prosecutor stated: Your Honor, he waives the right to take a direct appeal from his conviction or sentence under Title 28, U.S.Code, Section 1291, or 18 U.S.Code 3742, except if the United States appeals from the sentence, then the defendant may take a direct appeal from the sentence. If the sentence exceeds the applicable statutory limit set forth in the Code, or the sentence unreasonably exceeds the guideline range determined by the Court under the Sentencing Guidelines, then the defendant may take a direct appeal. App. at 61. At the conclusion of the prosecutor’s summary, the District Court asked McKoy if he agreed that it was an accurate summary of the agreement. McKoy affirmed that it was. The Court then asked McKoy: THE COURT: Sir, do you understand that by the plea agreement, you’re giving up your right to appeal, except as you have specifically reserved that right for the limited purpose of appealing this Court’s order denying your motion to suppress, and that you are giving up any right you may have to file a motion to vacate sentence of any other ground under Title 28, United States Code, Section 2255 for habeas corpus relief, and that you are also giving up other valuable rights to obtain collateral review of your sentence. THE DEFENDANT: Yes. App. at 63-64. Thereafter, McKoy pled guilty to possession with intent to distribute heroin. McKoy filed a Statement in Mitigation of Sentence, arguing for a downward departure pursuant to U.S.S.G. § 4A1.3(b)(l), and/or a variance based on consideration of the § 3553(a) factors. The thrust of his argument was that the career offender status overstated his criminal history. On August 3, 2007, the District Court entered Tentative Findings and Rulings denying McKoy’s request for a downward departure but stating that it would entertain any other argument for a variance in consideration of the § 3553(a) factors. At the sentencing hearing on August 7, 2007, McKoy’s counsel repeated his argument and request for a departure and also for a variance. The Court sentenced McKoy to the bottom of his advisory Guideline range, 188 months. Notice of Appeal was filed the same day. II. McKoy argues that the District Court committed procedural error both when it refused to grant a downward departure and refused to grant a variance because it did not address counsel’s specific arguments that the criminal history was overstated. McKoy also argues that the Court imposed an unreasonable sentence. In response, the government contends that McKoy’s appellate waiver bars him from challenging his sentence on these grounds, and that, at any rate, the District Court did not commit error and the sentence was reasonable. When the government invokes an appellate waiver and the defendant contends that the waiver does not bar his appeal, we consider whether: (1) the waiver “of the right to appeal [his] sentence was knowing and voluntary;” (2) “whether one of the specific exceptions set forth in the agreement prevents the enforcement of the 735waiver;” and (3) “whether enforcing the waiver would work a miscarriage of justice.” United States v. Jackson, 523 F.3d 234, 243-44 (3d Cir.2008). A. Knowing and Voluntary Waiver In examining whether the waiver was knowing and voluntary, we scrutinize the colloquy to determine if the District Court “ ‘inform[ed] the defendant of, and determine[d] that the defendant understood] ... the terms of any plea-agreement provision waiving the right to appeal or to collaterally attack the sentence’ as Federal Rule of Criminal Procedure ll(b)(l)(N) requires.” United States v. Mabry, 536 F.3d 231, 239 (3d Cir.2008) (brackets and ellipses in original). McKoy argues that his appellate waiver was unknowing and involuntary because the District Court did not conduct an adequate Rule 11 colloquy. Because McKoy did not object at his plea hearing to a Rule 11 error, he must satisfy, in light of the whole record, the plain-error rule. United States v. Goodson, 544 F.3d 529, 539 (3d Cir.2008). “Plain error requires that there must be (1) error, (2) that is plain or obvious, and (3) that affects a defendant’s substantial rights.” Id. (citing Johnson v. United States, 520 U.S. 461, 467, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997)). “If all three conditions are met, an appellate court may then exercise its discretion to notice a forfeited error, but only if (4) the error seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.” Id. (quoting Johnson, 520 U.S. at 467, 117 S.Ct. 1544) (internal quotation marks omitted). In Goodson, we held that the District Court committed error when it “relied upon the prosecutor’s recitation of the terms of the appellate waiver to fulfill its obligation to inform the defendant of the specifics of the waiver provision.” 544 F.3d at 540. We further held that, although the Court did ask the defendant personally whether he understood that he had given up substantial appellate rights, it committed error because “there was no effort to verify that [the defendant) understood the breadth of the waiver or to underscore the fact that the waiver meant that, subject to three very narrow exceptions, [he] was giving up the right to appeal both the validity of his plea and the legality of his sentence.” Id. Although here the District Court asked, and McKoy confirmed, that he understood and executed the plea agreement with his attorney, and the Court took measures to determine that McKoy understood the plea agreement and was competent, like Good-son there was no effort to verify that McKoy understood the breadth of the waiver.2 For this reason, the Court committed plain error and McKoy has met his burden for the first two prongs of the plain-error analysis. However, our inquiry is not limited to whether there has been a technical violation of Rule 11 which was plain error; we must determine whether the defendant has “demonstrated that the deficient colloquy affected his substantial rights by precluding him from knowing of and understanding the significance of the binding appellate waiver in the plea agreement.” 544 F.3d at 540. Goodson addressed some of 736the considerations that inform this inquiry. In that case, the record evidence demonstrated that the defendant was college educated and was able to read the plea letter and comprehend its meaning, that the prosecutor generally discussed the terms of the appellate waiver during the change-of-plea hearing, that the defendant advised the Court that he understood that his right to appeal was substantially limited, and that the defendant had executed the acknowledgment on the final page of his plea agreement and discussed it with his counsel. Under those circumstances, we concluded that the defendant had failed to meet his burden of proving that the deficient Rule 11 colloquy affected his substantial rights. 544 F.3d at 540-41. Here, the record demonstrates that McKoy was a 23-year-old with a tenth grade education; that he could read, write, and understand English; that the Court, with defense counsel’s agreement, found him competent; that the prosecutor discussed the terms of the appellate waiver during the change-of-plea hearing; that McKoy stated to the Court that he understood that he was giving up his right to appeal, to file a motion to vacate sentence, and to seek collateral review of his sentence; and that McKoy had executed the acknowledgment on the final page of his plea agreement and reviewed the agreement with his counsel and understood the terms and contents. McKoy argues that his case is similar to United States v. Corso, in which we determined that the defendant’s substantial rights were affected where the District Court made no effort to determine that the defendant, whose education was limited to a GED diploma, understood the effect of his waiver on his right to appeal, or even whether he had discussed the waiver with his attorney, and the prosecutor made only a fleeting reference to “the standard language regarding waiver of appeal,” without more and the Court was completely silent on the subject. 549 F.3d 921, 930-31 (3d Cir.2008). However, the District Court here did much more than the Court in Corso to ensure that McKoy knew of and understood the significance of the binding appellate waiver. McKoy has not met his burden under the third prong of the plain-error analysis.3 B. Express Exceptions None of the specific exceptions set forth in the plea agreement prevents the enforcement of the waiver here, and McKoy does not argue to the contrary. C. Miscarriage of Justice McKoy does contend that enforcement of his waiver in the situation before us would result in a miscarriage of justice. We do not agree. Even if McKoy had not waived his right to pursue this appeal, we would lack jurisdiction to review the District Court’s denial of the departure. United States v. Vargas, 477 F.3d 94, 103 (3d Cir.2007). Moreover, the District Court did explain why it rejected McKoy’s contention that his offender status overstated his criminal history.4 We believe that explanation was adequate, but even if we assume the con737trary, that deficiency would not be sufficient to support a manifest injustice finding. Finally, we note that having received a sentence at the bottom of the Guidelines range, McKoy is hardly in a position to argue that a failure to review its reasonableness constitutes a manifest injustice. III. For these reasons, we will enforce the appellate waiver and affirm the judgment of the District Court. . The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742. . It is unclear whether a district court can delegate to the prosecutor its responsibility under Rule 11 to ‘‘inform” the defendant of the terms of any plea agreement provision. See United States v. Corso, 549 F.3d 921, 929 (3d Cir.2008) (noting that Rule 11 does not permit the court to delegate its responsibilities to "inform” and “determine” to the government, but even presuming the court could rely on the government to inform the defendant, the prosecutor’s inadequate explanation was insufficient). However, even assuming here that the District Court could rely on the prosecutor's recitation of the terms, the Court failed to adequately determine that the defendant understood those terms. . We note that the District Court misspoke regarding the reservation of the right to appeal the denial of the suppression motion, as the Plea Agreement made no such reservation. However, this does not impact our determination that the error was plain but did not impact McKoy's substantial rights. . The District Court said inter alia: The offenses for which you pled guilty, and then, the ones for which you've taken responsibility, are indeed serious offenses. It's clear that the prior punishment that you received has not changed your conduct. The amount of drugs that you've been dealing with and the consistency of that pattern of action over a fairly extensive period of *737time, albeit you're still relatively young, is excessive. So I believe this punishment is necessary. Not really ever indicated any desire in your history, as I go through the presentence report, of trying to break out of the cycle that you’ve chosen to place yourself in. As I mentioned, I have carefully considered the arguments set forth in the motion for downward departure, and I’ve denied that motion. I would also incorporate the reasons set forth in the Court’s rulings and findings in that regard. And quite frankly, and unfortunately, don't find it appropriate to grant a variance from those guidelines, in light of your history. Although the prior two offenses may make the defendant a career criminal under the guidelines, are not the worst drug offenses I’ve seen, they are substantial trafficking offenses. And equally, more importantly, the offenses are not out of character for this defendant. App. at 116-20.	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8473841/	OPINION OF THE COURT CHAGARES, Circuit Judge. Almaz Tameru and Girma Tameru, husband and wife, appeal from the District Court’s grant of summary judgment to W-Franklin, L.P., doing business as Sheraton Philadelphia City Center (the “hotel”). We will affirm. I. Because we write solely for the benefit of the parties, we will only briefly summarize the essential facts. Plaintiff Almaz Tameru worked as a cashier in the parking garage housed in the same building as the hotel. On February 1, 2005, shortly after beginning her shift, she left the parking garage and entered the hotel to obtain a cup of coffee. On her way out of the hotel, after descending two or three steps, she slipped and fell. After she fell, she saw a patch of ice with a skid mark where she had slipped. Before she slipped, she had noticed that the ground was wet, but she had not seen any ice. She also noticed snow and ice on and around the roads during her drive in to work, as well as on the sidewalk area near the parking garage. A hotel security guard, Cabell Brown, responded to the incident. He prepared an incident report stating that “entire pavement area” where Mrs. Tameru fell was “wet” but “was not icy.” App. 157. Another report indicated that Brown was contacted about Mrs. Tameru’s incident at 10:46 p.m. App. 159 (“Security Activity Report”). This report indicated that he had “[tjoured outer perimeter of Hotel” and “[sjpot-checked PORT area”1 three times at 9:17 p.m. App. 159; see also App. 160 (“Basic Security Checklist” confirming that the tour of outer perimeter, including the front port, was completed at 9:17 p.m.). Brown testified that if he had observed a dangerous or hazardous condition during this inspection, including any ice in the entryway to the hotel, he would have noted the condition in the security log. The hotel’s Director of Security testified that if any security personnel or other hotel staff members report ice or snow conditions, the snow would be removed and the ground salted. No salt had been applied to the area where Mrs. Tameru fell. The Director of Security admitted that “black ice” may form if water drops below a certain temperature, App. 394, but 739he testified that he had never seen ice in that area of the hotel, which he described as located under a protective overhang and near the entrance to the hotel. App. 396. A meteorologist retained by plaintiffs prepared a report concluding that the weather conditions at the time of Mrs. Tameru’s fall were “consistent” with the “presence of black ice.” App. 178 (emphasis in original). He further opined that “[biased upon the testimony of Cabell Brown, the area he identified as being wet, would have been icy based upon the prevailing weather conditions.” Id. Analyzing the temperature data for the day in question, he stated that the temperature in the area “cooled to the freezing point of water (i.e., 32°) by 8:00 p.m.,” and that “[a]ny meltwater that formed earlier in the day from the melting of snow and ice ... began to freeze at this time.” App. 175. The temperature was reported to be 34 degrees at 7:00 p.m., 32 degrees at 8:00 p.m., 32 degrees at 9:00 p.m., 31 degrees at 10:00 p.m., and 30 degrees at 11:00 p.m. App. 176. “The temperature remained below freezing through midnight,” and thus he concluded that any melted water would be expected to remain frozen. App. 175. Plaintiffs commenced this action in the Philadelphia County Court of Common Pleas, and the original defendants2 removed the case to federal court. The hotel moved for summary judgment, and on September 11, 2008, 2008 WL 4272637, the District Court granted the motion. The District Court determined that plaintiffs had failed to produce evidence that the hotel had actual or constructive notice of the condition that caused plaintiffs’ alleged injuries. II. The District Court had jurisdiction pursuant to 28 U.S.C. §§ 1332(a) & 1441(a), and this Court has jurisdiction pursuant to. 28 U.S.C. § 1291. This Court reviews the District Court’s grant of summary judgment de novo, applying the same standard that the District Court was obligated to apply. Gonzalez v. AMR, 549 F.3d 219, 223 (3d Cir.2008). “Summary judgment is appropriate only where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.” Id. (citation omitted). See Fed.R.Civ.P. 56(c). On summary judgment, “we must view the facts in the light most favorable to the non-moving party, and draw all reasonable inferences therefrom in that party’s favor.” New Jersey Transit Corp. v. Harsco Corp., 497 F.3d 323, 326 (3d Cir.2007) (citation omitted). III. “The mere fact that an accident occurred does not give rise to an inference that the injured person was the victim of negligence.” Swift v. Northeastern Hospital of Philadelphia, 456 Pa.Super. 330, 690 A.2d 719, 722 (1997). To establish a negligence claim, a plaintiff must prove “four elements: (1) a duty or obligation recognized by law; (2) a breach of that duty; (3) a causal connection between the conduct and the resulting injury; and (4) actual damages.” Id. Under section 343 of the Restatement (Second) of Torts, which in Pennsylvania defines the duty that a possessor of property owes to a business invitee, a possessor of property is only liable for injuries to a patron caused by a dangerous condition on the premises if he “knows of or reasonably should have known of the condition.” Swift, 690 A.2d at 722 (citing Blackman v. Federal Realty Inv. Trust, 444 Pa.Super. 411, 664 A.2d 139, 142 (1995)). Therefore, an “invitee 740must prove either the [defendant] had a hand in creating the harmful condition, or [it] had actual or constructive notice of such condition.” Id. (citing Moultrey v. Great A & P Tea Co., 281 Pa.Super. 525, 422 A.2d 593, 598 (Pa.1980)). Without any evidence that the ice was observable for any significant period of time prior to the accident, a jury may not reasonably infer that the hotel had constructive notice of the hazardous condition. See Saldana v. Kmart Corp., 260 F.3d 228, 232 (3d Cir.2001) (“Circumstantial evidence that a substance was left on the floor for an inordinate period of time can be enough to constitute negligence,” but plaintiffs failure to present evidence that the condition lasted “for some minimum amount of time before the accident” justified granting summary judgment for the defendant); Gales v. United States, 617 F.Supp. 42, 44 (W.D.Pa.1985) (affirming summary judgment because “Plaintiff has not produced any evidence indicating the length of the time that the liquid was on the floor prior to the Plaintiffs fall”) (citing Lanni v. Pennsylvania R.R. Co., 371 Pa. 106, 88 A.2d 887 (1952)). Even when the “general weather conditions” are such that a hazardous condition may materialize, constructive notice cannot be inferred from this mere possibility. Sheridan v. Horn & Hardart Baking Co., 366 Pa. 485, 77 A.2d 362, (1951); accord Parker v. McCrory Stores Corp., 376 Pa. 122, 101 A.2d 377, 377-78 (1954) (department store cannot be expected to inspect “every minute or every five minutes every entrance, aisle, corridor and stairway in the store, in order to instantly clean up and eliminate every wet or possibly slippery, or possibly dangerous condition and every puddle which might be found to exist anywhere in the store”). Weather conditions can only support an inference of actual or constructive notice of a hazardous condition when coupled with evidence that the defendant had knowledge of both the weather condition at the time of the accident and the fact that the weather condition created hazards on the premises. See Cohen v. Food Fair Stores, Inc., 190 Pa.Super. 620, 155 A.2d 441, 442-43 (1959) (distinguishing Parker and Sheridan based on testimony from a store manager that “he knew of the dangerous condition of the vestibule floor on rainy days”). The evidence does not support a reasonable inference of actual or constructive notice in this case. Viewed in the light most favorable to plaintiffs, the most the evidence establishes is that the temperature had fallen enough for ice to form in the area near the hotel and that, by the time of Mrs. Tameru’s fall, ice had in fact formed. None of the evidence indicates that the defendant knew or should have known that ice had actually formed in the entryway to the hotel at the time the accident occurred. The security manager testified that he had never before observed ice in the covered entryway area, and plaintiffs did not produce any evidence suggesting that the hotel should have been aware that icy conditions developed in this area. During the routine security sweep of the premises conducted at 9:17 p.m., the security guard spot-checked the entryway area and did not detect any ice. The mere fact that the temperature had dropped to 31 degrees by 10:00 p.m. does not support a reasonable inference that the hotel should have known that ice had formed in the location where Mrs. Tameru fell. Likewise, Mrs. Tameru’s observation of ice on the ground after she fell does not support a reasonable inference that the hotel knew, or should have known, about the ice prior to her fall. Despite the meteorological evidence that the temperature had fallen below freezing in the hours before the accident, there was no evidence that ice had existed for any length of time before Mrs. Tameru observed it. Because plaintiffs failed to produce evidence of actual or *741constructive notice, the district court properly granted summary judgment for the defendant. IV. For the foregoing reasons, we will affirm the judgment of the District Court. . The port is the area near the main entry to the hotel. See App. 369. . Plaintiffs originally named a number of defendants, but the parties stipulated to the dismissal of these defendants and the addition of W-Franklin, L.P. as the sole defendant.	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8473843/	OPINION OF THE COURT CHAGARES, Circuit Judge. David Cox and Karen Cox, husband and wife, appeal from the District Court’s grant of summary judgment to Wal-Mart Stores East, L.P. (Wal-Mart). We will affirm. I. Because we write solely for the benefit of the parties, we will only briefly summarize the essential facts. On July 29, 2005, while shopping at a Philadelphia-area Wal-Mart store, plaintiff David Cox slipped on a small patch of oil on the floor of an aisle in the store’s automotive department. On the shelves above where David Cox slipped, Wal-Mart stocked five-gallon containers of motor oil. On most of the shelves, these containers were stored upright, but on the bottom shelf these containers were stored horizontally. After the incident, a Wal-Mart employee observed a business card-sized smear of oil in the aisle, along with a few drops of oil, primarily in the area under the shelves. This employee also observed oil residue on one of the containers that was stored on its side on the bottom shelf, as well as drops of oil on the shelf itself. When the employee inspected this container, he found that the lid was on securely and that no oil was leaking from the container. Plaintiffs filed this action on June 13, 2007, alleging that David Cox sustained injuries caused by Wal-Mart’s negligence and that Karen Cox suffered from loss of consortium. Wal-Mart moved for summary judgment, and on August 26, 2008, 2008 WL 4072804, the District Court granted Wal-Mart’s motion. The court concluded that plaintiffs had failed to produce any evidence that Wal-Mart had actual or constructive notice of the oil on the floor before the accident occurred, or that the horizontal stacking of the oil containers caused the oil to leak onto the floor. The court also rejected the plaintiffs’ attempt to apply the doctrine of res ipsa loquitur to establish Wal-Mart’s negligence. The plaintiffs timely appealed the grant of summary judgment. II. The District Court had jurisdiction pursuant to 28 U.S.C. § 1332(a), and this Court has jurisdiction pursuant to 28 U.S.C. § 1291. This Court reviews the District Court’s grant of summary judgment de novo, applying the same standard that the District Court was obligated to apply. Gonzalez v. AMR, 549 F.3d 219, 223 (3d Cir.2008). “Summary judgment is appropriate only where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.” Id. (citation 743omitted). See Fed.R.Civ.P. 56(c). On summary judgment, “we must view the facts in the light most favorable to the non-moving party, and draw all reasonable inferences therefrom in that party’s favor.” New Jersey Transit Corp. v. Harsco Corp., 497 F.3d 323, 326 (3d Cir.2007) (citation omitted). III. The parties agree that Pennsylvania law governs plaintiffs’ claims, as do we. In Pennsylvania, the “mere fact that an accident occurred does not give rise to an inference that the injured person was the victim of negligence.” Swift v. Northeastern Hospital of Philadelphia, 456 Pa.Super. 330, 690 A.2d 719, 722 (1997). To establish a negligence claim, a plaintiff must prove “four elements: (1) a duty or obligation recognized by law; (2) a breach of that duty; (3) a causal connection between the conduct and the resulting injury; and (4) actual damages.” Id. Under section 343 of the Restatement (Second) of Torts, which in Pennsylvania defines the duty that a possessor of property owes to a business invitee, a store owner is only liable for injuries to a patron caused by a dangerous condition on the premises if he “knows of or reasonably should have known of the condition.” Swift, 690 A.2d at 722. Therefore, an “invitee must prove either the [defendant] had a hand in creating the harmful condition, or [it] had actual or constructive notice of such condition.” Id. The District Court granted summary judgment because it concluded that plaintiffs failed to produce any evidence that Wal-Mart had actual or constructive notice of the drops of oil on the floor before the accident occurred, or that Wal-Mart was involved in any way in creating the condition. Plaintiffs argue that Wal-Mart created the dangerous condition because “it was responsible for stocking the sideways positioned oil container.” Cox Br. at 13; see also Joint Appendix (“J.A.”) 85 (report of Howard P. Medoff, Ph.D., P.E., opining that “it is reasonable and logical to conclude that the oil spilled from the sideways stacked oil container”). Plaintiffs also argue that the evidence supports a reasonable inference that the condition existed for a long enough duration to provide constructive notice. Cox Br. at 13. Plaintiffs reason that since none of the witnesses observed an “active leak,” the “presence of oil about the oil container and shelf and floor below it indicates that a slow leak over time was the source of the oil on the floor.” Id.; see also id. at 8 (citing expert report concluding that the Wal-Mart employee’s description of the incident was “consistent with container leakage over time”). The evidence simply could not permit a reasonable jury to conclude that the drops of oil were caused by Wal-Mart’s horizontal stocking of the containers. Although the plaintiffs expert surmised that a “reasonable and logical” explanation for the source of the oil is that it leaked from one of the oil containers, J.A. 85, there is no evidence to support this hypothesis, and several other causes may explain the presence of the oil. See J.A. 59 (explaining that oil drops on the floor of the store may be caused by a customer opening a container or a container falling and cracking open). On this evidentiary record, the District Court properly granted summary judgment. See Martino v. Great Atlantic & Pacific Tea Co., 419 Pa. 229, 213 A.2d 608, 610 (1965) (“There is no evidence from which the jury might reach a conclusion as to the cause of the presence of the grape in the aisle, and jurors may not be permitted to reach conclusions based upon guess or conjecture.”); Myers v. Penn Traffic Co., 414 Pa.Super. 181, 606 A.2d 926, 930 (1992) (“Without evidence that one or the other of these two equally likely occurrences caused the grape to be on the floor, 744there is no issue to be tried. Any decision would be based on mere speculation.”). The evidence also fails to support plaintiffs’ contention that the drops of oil were on the floor long enough that WalMart should have been aware of then-presence. Plaintiffs try to apply deductive logic to support their theory that a “slow leak over time was the source of the oil on the floor.” Cox Br. at 13. They begin with the undisputed fact that oil was observed on the floor and on one of the horizontally stocked containers. Since there “was no active leak,” plaintiffs argue that the “reasonable factual inference is that this was not a transitory active leak (which just happened) but was slowly evolving over some period of time.” Id. However, without any evidence that the oil was observable for any significant duration of time, a jury may not reasonably infer that Wal-Mart had constructive notice. See Gales v. United States, 617 F.Supp. 42, 44 (W.D.Pa.1985) (affirming summary judgment because “Plaintiff has not produced any evidence indicating the length of the time that the liquid was on the floor prior to the Plaintiffs fall”). The District Court properly granted summary judgment based on plaintiffs’ failure to produce any evidence that Wal-Mart had actual or constructive notice of the hazardous condition. IV. Plaintiffs also argue that the District Court erred in holding that the doctrine of res ipsa loquitur was inapplicable to these facts. Cox Br. at 13-14. Pennsylvania “has adopted the evidentiary rule of res ipsa loquitur as articulated in the Restatement (Second) of Torts.” D’Ardenne v. Strawbridge & Clothier, Inc., 712 A.2d 318, 321 (Pa.Super.Ct.1998). The Restatement provides that a plaintiffs injury may be “inferred” to have been caused by the defendant’s negligence when “(a) the event is of a kind which ordinarily does not occur in the absence of negligence; (b) other responsible causes, including the conduct of the plaintiff and third persons, are sufficiently eliminated by the evidence; and (c) the indicated negligence is within the scope of the defendant’s duty to the plaintiff.” Restatement (Second) of Torts § 328D(1). However, res ipsa loquitur cannot be invoked under these circumstances. In cases in which “a patron suffers injury in a store from a transitory danger, res ipsa loquitur does not apply.” Neve, 771 A.2d at 790. The doctrine may be applied to a “defect in the building or its fixtures,” which exists “for sufficient time to charge the defendant store with knowledge,” id., but it does not apply to a “transitory defect like a spill,” id. at 791, because “shopkeepers cannot be charged with notice of transitory dangers that can materialize a split second before an injury occurs.” Id. at 790. The temporary spill of a few drops of oil is not the type of defect for which res ipsa loquitur may be applied. In addition, the District Court properly determined that plaintiffs failed to produce evidence eliminating other potential causes for the drops of oil. See Lonsdale v. Joseph Home Co., 403 Pa.Super. 12, 587 A.2d 810, 816 (1991) (affirming judgment for defendant where plaintiff failed to produce evidence that “would eliminate third parties (e.g., ... other store patrons) as possible causes of the accident.”). We agree with the District Court that the doctrine of res ipsa loquitur does not apply to plaintiffs’ case. V. For the foregoing reasons, we will affirm the judgment of the District Court.	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8473844/	*746OPINION OF THE COURT NYGAARD, Circuit Judge. Appellant Michael Stradford appeals his sentence of one hundred and eighty eight months imprisonment, which he received for various drug-related offenses. On appeal, Stradford raises numerous arguments challenging the District Court’s sentence. We will affirm. Appellant was charged in a one-count Information with violations of 21 U.S.C. § 841(a)(1), (b)(1)(B) and 18 U.S.C. § 2 — distribution and possession with intent to distribute more than five grams of crack cocaine. Stradford pleaded guilty to the charge. On appeal, Stradford argues, first, that the District Court erred when it did not depart downward under United States Sentencing Guidelines § 4A1.3 because his career offender status overstated his criminal history and under United States Sentencing Guidelines § 5k2.0 because the District Court failed to consider mitigation evidence. Stradford did not move for a departure on these grounds before the District Court, however. If Stradford had moved for the departure and the District Court had exercised its discretion and denied the motion, we would lack jurisdiction to review that decision. See United States v. Minutoli, 374 F.3d 236, 240 (3d Cir.2004). But, unfortunately for Stradford, he did not ask the District Court for a departure. It would be a far stretch to say that the District Court erred for failure to do something it was not requested to do. We simply lack jurisdiction to review the District Court’s failure to downward depart sua sponte. Jurisdiction only arises if the District Court’s refusal to depart downward is premised on the mistaken belief that it lacks discretion to do so. Stradford next argues that his sentence was unreasonable because he was a victim of sentencing entrapment, and it would therefore be unfair to impose the crack cocaine sentencing guidelines. This argument is baseless, however, because Stradford’s status as a career offender was the basis for his sentencing calculation. Stradford also maintains that his sentencing range was substantively unreasonable. A fair reading of the record demonstrates that, in formulating and imposing sentence, the District Court did not abuse its discretion in any respect. The District Court evaluated each of the relevant 18 U.S.C. § 3553(a) factors and imposed sentence at the bottom of the Guidelines range. We therefore reject Stradford’s challenge to that sentence. See Rita v. United States, 551 U.S. 338, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007). We also reject Stradford’s argument that the District Court failed to consider the conditions of his pre-trial confinement when passing sentence. Here, the District Court acted well within its discretion and imposed a sentence at the lowest end of the Guideline’s range. The record conclusively establishes that the District Court struck a reasonable balance between the mitigating factors, Stradford’s extensive criminal history, and the need for deterrence. Accordingly, we will affirm Stradford’s sentence.	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8473846/	OPINION OF THE COURT STAPLETON, Circuit Judge: James Zwick appeals his seventy-seven month sentence for one count of bank robbery in violation of 18 U.S.C. § 2113(a). According to Zwick, the District Court improperly determined the length of his term of imprisonment based on rehabilitative goals. For the reasons that follow, we will affirm. I. Because we write only for the parties who are familiar with the factual context and procedural history of this case, we set forth only those facts necessary to our analysis. Zwick pled guilty to one count of bank robbery in violation of 18 U.S.C. § 2113(a). He sought a sentence below the Guidelines range (seventy-seven to ninety-six months of incarceration). In support of his argument for a variance, Zwick explained that he had committed the crime because he was threatened by drug dealers to whom he owed money. He asserted that a sentence below the Guidelines range would help him seek treatment for his drug addiction and would also allow him to return to his occupation as a boilermaker and 748provide restitution to his victim more quickly. As additional factors militating in favor of a lower sentence, Zwick also pointed to his health problems and asserted that someone his age (fifty years) was statistically less likely to recidivate than a younger defendant. In opposing his request for a variance, the government stressed Zwick’s long criminal history and the seriousness of his offense. The District Court considered Zwick’s arguments but denied Zwick’s motion for a variance, citing the presentence report (which contained Zwick’s extensive prior criminal history), the arguments made by counsel, and the Court’s additional findings of fact. The Court sentenced Zwick to seventy-seven months of imprisonment, a sentence on the lowest end of the Guidelines range, and ordered him to pay restitution in the amount of $1,143. The Court also recommended to the Bureau of Prisoners that Zwick participate in its 500-hour residential treatment program to the extent he was eligible. It is this sentence from which Zwick appeals. II. Zwick claims that the District Court violated the Sentencing Reform Act, 18 U.S.C. § 3582(a), by increasing his sentence on the basis of his need for alcohol and drug rehabilitation, as well as his need for medical treatment. In support of his argument, Zwick points to the Court’s statement that “the sentence that I have imposed gives you the opportunity to get, No. 1, good medical care; and No. 2, drug treatment in the 500-hour program.” App. at 144-45. The Court also noted that, “some of the conditions of which you complained, diabetes, arthritis, Hepatitis C, I have seen in other records and I know that the prison system does afford treatment.” App. at 145. The Court also stated that Zwick would receive treatment that he “may not have had” in the past as part of his sentence. App. at 147. We are unpersuaded by Zwick’s argument that these statements show that the District Court lengthened his term of imprisonment based on his need for medical treatment and rehabilitation. To the contrary, the District Court expressly relied on “the nature and circumstances of the offense as well as [Zwick’s] history and [his] background” when determining the sentence. App. at 143. In addition to the seriousness of the offense, the Court’s explanation of its sentence emphasized Zwick’s extensive criminal history and the need for specific deterrence: [T]here’s been an extensive history of criminal offenses that go back to the early 1970s. Some of them are property crimes as we know, some of them are burglaries, some of them involve theft and taking. So — and they are consistent. They continue right up to the present time What’s telling to me is despite prior punishment, whether probation time or jail time, you have continued to commit crimes. So I have weighed all of that and I have come to the determination that I have. App. at 144. We further note that the Court made the majority of the comments identified by Zwick as problematic in the context of addressing his argument that he had not had prior drug treatment. The Court noted that there was “nothing stopping” Zwick from receiving treatment prior to his commission of the offense and then indicated that he would be able to receive treatment while serving his sentence. App. at 144. Accordingly, we find nothing in the record to suggest that the Court improperly lengthened Zwick’s sentence so that he could receive rehabilitation. 749We are likewise not persuaded by Zwick’s argument that the District Court’s judgment was inconsistent with our precedent in United States v. Manzella, 475 F.3d 152 (3d Cir.2007). In Manzella, the record established that the sentencing judge had lengthened the defendant’s sentence for the purpose of rehabilitation. Here, a fair reading of the sentencing judge’s explanation of his sentence indicates that the decisions regarding incarceration and the length thereof were based upon consideration of the sentencing guidelines, and the other factors under § 3553(a), including the nature of his offense and his personal history. Accordingly, we perceive no conflict with Manzella. III. For these reasons, the judgment of the District Court will be affirmed.	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8473848/	OPINION OF THE COURT STAPLETON, Circuit Judge: Nicholas Fera appeals from the District Court’s orders (1) granting summary judgment in this 42 U.S.C. § 1983 action in favor of the Borough of Baldwin, Baldwin Chief of Police Christopher Kelly, and Baldwin Council members John Conley, David Depretis, Michael Ducker, Michael Fetsko, Jr., John Ferris, Jr., and Francis Scott, and (2) denying Fera’s motion for reconsideration. We will affirm the judgment of the District Court. I. In November 2001, Appellant Nicholas Fera was elected to the Baldwin Borough Council (“the Council”) in Pittsburgh. In October 2004, the Council and a few other Borough officials held a budget workshop, during which they discussed, inter alia, unlicensed gaming devices. One of the Council’s members noted that his barber told him that Edward Albert, the owner of a local establishment called the “Haf Mart,” owned seven gaming devices but had licenses for only four of these devices. Although the Council discussed the possibility of investigating all proprietors who owned gaming devices, it does not appear that the Council made any firm decisions at the workshop. The day after the workshop, Fera went to the Haf Mart, purportedly to buy a lottery ticket. While he waited in line, he saw Albert and motioned him to the rear of the store. When the two of them gathered at the rear of the store, Fera whispered to Albert that he should get the additional licenses for his gaming machines. According to Fera, he did not tell Albert to hide the unlicensed gaming machines or warn Albert that the police might be investigating him. The next day, Baldwin Chief of Police Christopher Kelly called Fera and asked him to come to the police station. When Fera arrived at the station, Chief Kelly explained that a Haf Mart employee had reported that Fera had told Albert to hide the unlicensed gaming devices. Chief Kelly noted that Fera might be subject to 751criminal liability for hindering an investigation, and that there could be negative publicity against Fera and his family. Chief Kelly then either told or advised Fera to resign from the Council. After Fera refused, Chief Kelly asked him if he wanted to call anyone to discuss the matter. Fera asked Chief Kelly to call Sam McPherson, a former mayor of Baldwin Borough. At the end of the phone call, McPherson advised Fera to resign. After the phone call, Chief Kelly allegedly told Fera that he had ten minutes to make a decision and that, if he decided not to resign, Chief Kelly would have to prepare a police report. Fera then agreed to resign. Chief Kelly volunteered to type the resignation letter and asked Fera how he wanted the letter to read. Fera replied that he did not care what it said, so Chief Kelly composed a letter stating that Fera was resigning due to “an unexpected family emergency.” Fera signed the letter upon its completion. Although Chief Kelly did ultimately prepare a police report about the incident, no criminal charges were ever brought against Fera. At some point thereafter, Gale Dobson Miscush, the Borough’s Tax Collector, allegedly disseminated a series of “letters” to the public that portrayed Fera in a negative light by alluding to, inter alia, the incident at the Haf Mart. It appears that Fera tendered only one of these “letters” to the District Court. That document, titled “The Truth & Nothing But the Truth,” was published in the “Taxpayer Gazette” shortly before a local election.1 This document stated in pertinent part: Did you know the reason former Councilman Nick Fera resigned from council was because he had taken information from an executive council meeting & told a local business owner that he was under investigation. He hindered a police investigation, a criminal act, and violated the state ethics laws. Police reports are public information. His resignation & police report were filed on 10/27/04. In October 2006, Fera commenced the instant action in the Allegheny County Court of Common Pleas against Baldwin Borough, the Baldwin Borough Police Department, Chief Kelly, and Council members John Conley, David Depretis, Michael Ducker, Michael Fetsko, Jr., John Ferris, Jr., and Francis Scott. In January 2007, Defendants removed the case to the Western District of Pennsylvania. A few weeks later, Fera filed an amended complaint, naming all of the original defendants except the Baldwin Police Department. The amended complaint raised the following claims: (1) the defendants unlawfully seized Fera at the police station and violated his due process and equal protection rights; (2) the defendants engaged in a civil conspiracy in an attempt to force Fera to resign from the Council; (8) the published material was defamatory and had been provided to the author by the defendants; and (4) Fera was entitled to attorneys’ fees and costs pursuant to 42 U.S.C. § 1988. After the close of discovery, the defendants moved for summary judgment. In September 2007, the District Court granted these motions as to all of Fera’s claims. In doing so, the court concluded that [cjonspicuously absent from [Fera’s] statement of facts are any averments, let alone references to evidence of record, of the manner in which any defendant somehow disseminated any information to the citizen who defamed Plaintiff in a series of public letters, any proof of any conspiracy or agreement to 752support his conclusory allegations of conspiracy and agreement to force him to resign, or that he was at any time restrained or detained or otherwise had his freedom of movement curtailed by Chief Kelly. (Sept. 20, 2007, Memorandum Opinion at 9, 2007 WL 2769698.) Fera subsequently moved the court to alter or amend that judgment. The court denied the motion with respect to Fera’s federal claims, concluding that the motion “simply rehashes the arguments he previously made in opposition to summary judgment....” (Oct. 18, 2007, Memorandum Order at 3, 2007 WL 3053263.) The court granted the motion, however, as to Fera’s state law defamation claim, stating that it “agree[d] with Plaintiff and deems it a more appropriate exercise of discretion to follow its usual practice and decline to exercise its discretion to entertain the common law defamation claim pursuant to its supplemental jurisdiction.... ” (Id. at 4.) Accordingly, the court remanded the defamation claim to the Allegheny County Court of Common Pleas. Fera initially pursued this appeal without representation. In February 2008, he filed a pro se informal brief. Fera subsequently retained Arnold Y. Steinberg, Esquire, who filed a reply brief on Fera’s behalf in May 2008. Fera’s opening brief argues (1) that the District Court “did not have all of the facts,” and that he “was not represented right” by counsel in the District Court proceeding; (2) that the defendants did not attend two court-scheduled settlement conferences; and (3) that the District Court did not give him enough time to conduct discovery. Fera presents two additional arguments in his reply brief. Although somewhat difficult to discern, it appears that his first argument is that the District Court erred in granting summary judgment as to Fera’s due process claim because he sufficiently demonstrated an injury to his reputation. The second argument is that the District Court erred in granting summary judgment as to his Fourth Amendment claim because, contrary to its conclusion, his encounter with Chief Kelly constituted an unlawful seizure. II. The preliminary task in this appeal is determining which issues are before this Court. An appellant is “required to set forth the issues raised on appeal and to present an argument in support of those issues in [his] opening brief.” Kost v. Kozakiewicz, 1 F.3d 176, 182 (3d Cir.1993); see Fed. R.App. P. 28(a)(5), (9). Although “[i]t is well settled that an appellant’s failure to identify or argue an issue in his opening brief constitutes waiver of that issue on appeal,” United States v. Pelullo, 399 F.3d 197, 222 (3d Cir.2005), this Court has not held in a precedential opinion that this rule applies with equal force to pro se litigants. Other Courts of Appeals, however, have concluded that a pro se litigant’s failure to raise an issue in his opening brief constitutes a waiver of that issue in the absence of exceptional circumstances. See Timson v. Sampson, 518 F.3d 870, 874 (11th Cir.2008) (per curiam) (“While we read briefs filed by pro se litigants liberally, issues not briefed on appeal by a pro se litigant are deemed abandoned. Moreover, we do not address arguments raised for the first time in a pro se litigant’s reply brief.” (internal citations omitted)); Anderson v. Hardman, 241 F.3d 544, 545 (7th Cir.2001) (“Rule 28 applies equally to pro se litigants, and when a pro se litigant fails to comply with that rule, we cannot fill the void by crafting arguments and performing the necessary legal research .... ”); Al-Ra’Id v. Ingle, 69 F.3d 28, 31 (5th Cir.1995) (“An appellant’s brief must contain an argument on the issues that are raised____There is no exemption 753for pro se litigants, though we construe their briefs liberally.”). We agree with these courts that in fairness to the opposing side it is not asking too much of pro se litigants to require at least an identification in the first brief of the issues they are asking the appeals court to resolve. Fera has tendered no satisfactory explanation for his failure to identify his reply brief arguments in his opening brief, and we hold that those arguments have been waived. Our ultimate conclusion would be no different, however, if we held to the contrary. Both of those arguments are without merit. III. Fera’s opening brief does not identify any facts that were overlooked by the District Court, let alone explain how such facts warrant a different outcome in this case. As for the defendants’ alleged failure to attend the two settlement conferences, even if this allegation is true,2 Fera does not indicate what relief he seeks or otherwise explain how defendants’ failure to attend those conferences impacted the disposition of this case. Finally, Fera’s argument regarding his ability to conduct discovery is unpersuasive. This suit was originally filed in October 2006. In June 2007, Fera’s original attorney successfully withdrew as counsel. On July 9, 2007, two weeks before the close of discovery, Fera’s new attorney entered his appearance and filed an unopposed motion to extend the discovery deadline by thirty days. The District Court denied the motion without prejudice and held that the parties could file a renewed joint motion to extend the discovery period so long as the proposed discovery deadline did not affect the August 17, 2007, deadline for filing summary judgment motions. Although Fera never renewed his discovery motion, he now seems to claim that the District Court did not give him enough time to conduct discovery. He does not indicate, however, what additional discovery he intended to conduct or how that discovery might have affected the disposition of his claims. Moreover, a review of the District Court docket provides no indication that the parties had insufficient time to undertake discovery or otherwise prepare for summary judgment.3 Accordingly, the District Court did not abuse its discretion in overseeing the discovery in this case. IV. “[T]o make out a due process claim for deprivation of a liberty interest in reputation, a plaintiff must show a stigma to his reputation plus deprivation of some additional right or interest.” Hill v. Borough of Kutztown, 455 F.3d 225, 236 (3d Cir.2006). A plaintiff satisfies the stigma prong of this test by showing that the allegedly stigmatizing statements were made publicly and were false. Id. Fera cannot satisfy the stigma prong, for he fails to demonstrate that any of the Appellees made the public state-754merits of which he complains. Although he contends that the Borough’s Tax Collector, who is not a party to this suit, authored those statements, he fails to establish that any of the Appellees facilitated the statements’ publication. Moreover, that the Borough’s Tax Collector may have published these statements does not render the Borough susceptible to liability here, for Fera has not shown that the allegedly stigmatizing statements reflected the Borough’s policy or custom. See Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) (concluding that a municipality’s liability under 42 U.S.C. § 1983 for the acts or omissions of its employees or agents is limited to circumstances where the execution of the municipality’s custom or policy caused the constitutional violation). Accordingly, Fera’s first reply brief argument lacks merit. Turning to Fera’s second reply brief argument, “a person is ‘seized’ only when, by means of physical force or a show of authority, his freedom of movement is restrained.” United States v. Mendenhall, 446 U.S. 544, 553, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980). There is no seizure if “a reasonable person would feel free to decline the officers’ requests or otherwise terminate the encounter.” Florida v. Bostick, 501 U.S. 429, 436, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991). The District Court correctly concluded that Fera’s meeting with Chief Kelly did not constitute a seizure. Fera reported to the police station voluntarily, and it does not appear that, after Fera arrived at the station, the meeting evolved into a seizure. Fera does not allege that Chief Kelly physically restrained him, flashed his weapon or made a similar show of authority, or even raised his voice during the meeting. Granted, Fera does allege that Chief Kelly gave him an ultimatum — resign or be named in a police report. Yet this ultimatum, though asking Fera to make a difficult decision, did not restrict his freedom of movement or otherwise prevent him from ending the meeting. Fera does not allege that Chief Kelly, either in words or actions, barred him from leaving the station until he decided whether to resign. Indeed, there is no indication that Fera could not have simply left the police station without responding to the ultimatum. In light of all of the circumstances surrounding this meeting, it seems that a reasonable person in Fera’s position would have felt free to end the encounter. V. The judgment of the District Court will be affirmed. . Fera was running in that election in an attempt to win back his seat on the Council. He ultimately lost the election. . A review of the docket suggests that both conferences took place, and there is no indication that Appellees’ counsel were not present. Although it appears that Chief Kelly himself did not attend either conference, he obtained permission from the court to be excused from attending (the court required Chief Kelly to “be available" by telephone during the second settlement conference). . Fera's notice of appeal cryptically alleges that his attorney told him that they could not “use” Chief Kelly's deposition or the police report because those materials were "beyond discoveries.” To the extent Fera is attempting to argue that the District Court prevented him from using certain material obtained through discovery in his opposition to Appellees’ summary judgment motions, such a claim is baseless.	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8473852/	OPINION SLOVITER, Circuit Judge. Appellant Adam Levinson pled guilty to one count of wire fraud, in violation of 18 U.S.C. § 1343, and one count of filing a false tax return, in violation of 26 U.S.C. § 7206(1). The District Court imposed a below-Guidelines sentence of twenty-four months probation, including six months of home confinement. After the government appealed, this court concluded that the sentence was proeedurally unreasonable, vacated the sentence, and remanded the case to the District Court for resentencing. See United States v. Levinson, 543 F.3d 190 (3d Cir.2008). On remand, the District Court imposed a new, but still below-Guidelines, sentence of imprisonment for twelve months and one day. Levinson now appeals, arguing that the new sentence is also proeedurally unreasonable because the District Court allegedly concluded that it was required to weigh the Sentencing Guidelines more heavily than the other sentencing factors enumerated by Congress in 18 U.S.C. § 3553(a). I. Levinson was the manager and minority owner of a company that provided filtered drinking water to residences and businesses. He falsely reported the company’s financial status and operational performance over a two year period, and his business partner invested millions of dollars into the company based on those misrepresentations. Levinson also hired an outside consultant to hide his machinations, forced his employees to participate in the fraud, and punished employees who refused to do so. After his business partner received an anonymous tip regarding his wrongdoing, an audit uncovered Levinson’s misrepresentations as well as his use of over $177,000 of the company’s revenue for his personal benefit. Levinson also failed to report his use of those funds on his tax returns, and the government suffered an aggregate tax loss of about $44,000. 758As noted above, Levinson pled guilty to one count of wire fraud and one count of filing a false tax return based on the foregoing events. He also settled a civil fraud suit brought by his business partner by paying $350,000 and relinquishing his ownership interest in their company. At the first sentencing hearing, the District Court correctly determined that Levinson faced an advisory Guidelines range of twenty-four to thirty months imprisonment. The Court also rejected Levinson’s request for a downward departure under the Sentencing Guidelines based on his allegedly diminished mental capacity. After hearing argument from both parties, the District Court imposed a sentence of twenty-four months probation, including a six month period of home confinement, as well as 100 hours of community service, about $177,000 in restitution, and a $200 special assessment. The government appealed to this court, and as noted above, we vacated the sentence and remanded the case because the sentence was procedurally unreasonable. First, we concluded that the District Court’s finding that Levinson’s conduct inflicted no harm on the public — a finding upon which the District Court heavily relied in imposing its below-Guidelines sentence — was clearly erroneous given the tax fraud conviction. Second, we concluded that the District Court’s explanation for the variance was inadequate, particularly in light of that Court’s findings that Levinson was not an atypical defendant in terms of his personal characteristics or the particulars of his crimes. On remand, the District Court reaffirmed its earlier rulings under the Sentencing Guidelines and again heard argument from the parties regarding an appropriate sentence. The government argued for a sentence within the Guidelines range. It contended that such a sentence was appropriate because of the seriousness of Levinson’s fraud and false tax filings, the need for deterrence, and the absence of any personal characteristics that distinguish Levinson from the mill-run white collar defendant. On the other hand, Levinson argued that the District Court should again impose a sentence without a term of imprisonment. According to Levinson, the gravamen of the case was a private fraud that was amicably settled in the civil lawsuit between Levinson and his business partner. He also argued that a term of imprisonment would negatively impact his family, particularly his learning-disabled son, and that his good conduct under the original sentence supported a below-Guidelines sentence. The District Court imposed a below-Guidelines sentence of imprisonment for twelve months and one day. The Court identified several mitigating factors specific to Levinson, including his good conduct on probation, the extent to which Levinson and his family had already been punished for his crimes, and his slight risk of recidivism. The Court also stated that a within-Guidelines sentence was not appropriate in light of the other sentences issued to white collar criminals within the district and the passage of time. Nonetheless, the Court concluded that the term of imprisonment ordered was necessary to reflect the seriousness of the offenses, to promote respect for the law, to provide just punishment, and to afford adequate deterrence.1 II. We review the procedural and substantive reasonableness of a sentence under an abuse-of-discretion standard. United States v. Tomko, 562 F.3d 558, 567 (3d 759Cir.2009) (en banc). “[A]n abuse of discretion has occurred if a district court based its decision on a clearly erroneous factual conclusion or an erroneous legal conclusion,” but “absent any significant procedural error, we must give due deference to the district court’s determination that the § 3553(a) factors, on a whole, justify the sentence.” Id. at 567-68 (internal quotation and citations omitted). Levinson argues that the District Court’s new sentence was procedurally unreasonable because the Court improperly concluded that it was required, as a matter of law, to weigh the advisory Guidelines sentence more heavily than his individual characteristics. That is, Levinson argues that the case is analogous to Nelson v. United States, — U.S. —, 129 S.Ct. 890, 172 L.Ed.2d 719 (2009), which reaffirmed that a sentencing judge may not apply a presumption of reasonableness to sentences recommended by the Guidelines. However, Levinson misconstrues the District Court’s statements regarding its analysis of § 3553(a)’s sentencing factors. Importantly, the Court expressly recognized that it must “consider all of the Section 3553(a) factors in determining a reasonable sentence.” App. at 41. The record as a whole clearly demonstrates that the Court did so. Specifically, it found that several factors supported a sentence below the Guidelines range, including Levinson’s good conduct while on probation, the extent to which he had already been punished, his slight risk of recidivism, and the passage of time. The Court then properly balanced those mitigating circumstances against the remaining § 3553(a) factors, including but not limited to the advisory Guidelines range, and concluded that the term of imprisonment imposed was appropriate. In fact, as the government argues, the very fact that the District Court imposed a sentence substantially below the advisory Guidelines range undermines Levinson’s claim that the Court afforded improper weight to the Guidelines.2 Levinson also argues that the District Court erred because it allegedly stated that the Sentencing Guidelines fully account for the individual history and characteristics of a defendant. However, the Court merely stated that the Guidelines reflect “the history and characteristics of the defendant insofar as the defendant’s criminal history goes,” App. at 41, and they in fact do so in the criminal history category component of the Guidelines calculation. More importantly, as described above, the District Court clearly considered Levinson’s individual characteristics and relied on those characteristics to impose a substantially below-Guidelines sentence. In sum, the District Court appropriately responded to the procedural errors identified by this court in Levinson’s original sentencing proceedings and provided a complete, cogent, and reasonable explanation on the record of its reasons for imposing the new sentence on remand. III. For the above-stated reasons, we will affirm the 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). . Levinson also points to several statements made by the District Court in an order staying his commitment pending appeal to this court to support his argument that the Court placed improper weight on the Sentencing Guidelines. Assuming that these statements, which were made in an order issued after Levinson’s second sentencing hearing, are relevant to the procedural reasonableness of the sentence itself, they do not suggest that the District Court misunderstood its responsibilities under § 3553(a).	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8473854/	OPINION McKEE, Circuit Judge. Anthony Blaso appeals the sentence reduction he received as a result of his motion for a reduction of sentence pursuant to 18 U.S.C. § 3582(c)(2). Blaso requested a sentence of 80 months, however, the district court imposed a sentence of 87 months. Blaso’s appointed appellate counsel has filed an Anders and requested for leave to withdraw. For the reasons that follow, we will grant counsel’s motion to withdraw and affirm the district court’s judgment of sentence. I. Facts and Procedural History Inasmuch as we write only for the parties, it is not necessary to recite at length the facts of this case. It is sufficient to note that Blaso pled guilty to a charge of conspiracy to distribute and possess with intent to distribute more than 50 grams of cocaine base in violation of 21 U.S.C. § 846, pursuant to a written plea agreement. His Pre-Sentence Investigation Report (“PSR”), calculated Blaso’s base 761offense level to be 34 and his criminal history category to be II. This resulted in a Guidelines sentencing range of 168 to 210 months. The district court adopted the PSR without change. The district court also granted the government’s 5K1.1 motion for a downward departure based on substantial assistance. This reduced the applicable Guideline range to 108 to 135 months. After considering the factors set forth in 18 U.S.C. § 3553(a), the district court concluded that both Blaso’s health and his relationship with his family weighed in favor of a sentence that was lower the range suggested by the Guidelines, and sentenced Blaso to a term of imprisonment of 100 months. We affirmed the sentence on direct appeal. See United States v. Blaso, 262 Fed.Appx. 463 (3d Cir.2008) (non-preeedential). Thereafter, Blaso filed a motion for reduction of sentence based on Amendment 706 to the Guidelines, which retroactively reduced the base offense level for most cocaine base offenses by two levels. Blaso requested a reduced sentence of 80 months. Blaso argued that Amendment 706 reduced his base offense level from 34 to 32. Combining that offense level with a criminal history category of II resulted in an amended advisory Guidelines range of 135 to 168 months. However, Blaso claimed that his the low end of that range should be reduced by 40.5% to reflect the reduction the district court had granted from the Guideline range used to determine his original sentence.1 The district court rejected Blaso’s request for a reduction to 80 months, but did reduce the sentence to 87 months, as we noted at the outset. The court arrived at that sentence by lowering his base offense level to 32, and then reducing the offense level by an additional four levels for substantial assistance. This resulted in an amended advisory Guidelines range of 87 to 108 months. Although the district court had originally imposed a sentence below that suggested by the applicable Guidelines range, it declined to do so upon re-sentencing. The court concluded that after “applying the guideline range at a four level reduction ... and considering section 3553 and the need for public safety, a reduced sentence at the low end of the range is appropriate.” (Appellate Counsel’s Br.App. 3.) Blaso then filed this appeal, and his attorney filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and Third Circuit Local Appellate Rule (“LAR”) 109.2, stating that he is unable to identify any non-frivolous issues for review and asking for leave to withdraw as counsel for Blaso.2 In his Anders brief, counsel correctly notes that the only potential issue under these circumstances is whether the district court abused its discretion by reducing Blaso’s sentence to 87 months rather than to 80 months as Blaso requested. Counsel’s Anders brief states that nothing in the record indicates the district court abused its discretion in its decision to impose a reduced sentence of 87 months. In accordance with LAR 109.2, both the government and Blaso were provided with a copy of the Anders brief. The government 762filed a response brief, but Blaso has chosen not to file a pro se brief. II. Discussion Under Anders, appointed appellate counsel can request permission to withdraw as counsel if “after a conscientious examination of the record,” he or she determines that appellant’s case is “wholly frivolous.” 386 U.S. at 744, 87 S.Ct. 1396. The request for leave to withdraw “must, however, be accompanied by a brief referring to anything in the record that might arguably support the appeal.” Id. This means that “appellant’s counsel must ‘satisfy the court that he or she has thoroughly scoured the record in search of appealable issues’ and then ‘explain why the issues are frivolous.’ ” United States v. Coleman, 575 F.3d 316, 319 (3d Cir.2009) (quoting United States v. Marvin, 211 F.3d 778, 780 (3d Cir.2000)). Pursuant to LAR 109.2, this brief must be furnished to the government and the appellant. The government is to file a response brief, and the appellant may file a pro se response brief. See United States v. Youla, 241 F.3d 296, 300 (3d Cir.2001). If, after reviewing all briefs, “the [appellate] panel agrees that the appeal is without merit, it will grant counsel’s Anders motion and dispose of the appeal without appointing new counsel.” LAR 109.2. In reviewing counsel’s Anders brief, we must (1) ensure that counsel has complied with the requirements of LAR 109.2 and Anders-, and (2) independently review the record to see whether there are any non-frivolous issues. See Coleman, 575 F.3d at 319. After reviewing this record, it is clear that counsel has complied with the requirements of LAR 109.2 and Anders. He has provided copies of his Anders brief to Blaso and the government. He also thoroughly reviewed the record to identify any potential issues for appeal and explained why the sole issue was frivolous. Our independent review of the record leads to the same conclusion. There are no non-frivolous grounds to challenge the district court’s decision to reduce Blaso’s sentence to 87 months as opposed to the requested 80 months. Appellate counsel correctly notes that the only possible grounds for challenging the extent of the reduction of sentence is that the district court abused its discretion by not reducing the sentence by seven more months imprisonment as Blaso requested. However, that would surely be a frivolous claim because the district court did not have to grant any reduction in sentence at all. The plain language of 18 U.S.C. § 3582(c)(2) and section 1B1.10(b)(1) of the Guidelines both clearly establish that a district court’s decision to grant a reduction in sentence is discretionary. Section 3582(c)(2) states that a court “may” reduce a defendant’s sentence based on an amended Guidelines sentencing range. The Guidelines provide that the district court has discretion to determine “whether, and to what extent” a sentence reduction is warranted. U.S. Sentencing Guidelines Manual § lB1.10(b)(l) (emphasis added); see also United States v. Styer, 573 F.3d 151, 153 (3d Cir.2009) (“The determination as to whether a reduction is warranted ... is committed to the discretion of the district court.”). In determining the extent of any reduction, a district court is required to consider the § 3553(a) factors and public safety considerations. See U.S. Sentencing Guidelines Manual § 1B1.10 cmt. n. 1(B). Here, after explicitly taking into account § 3553(a) factors including public safety, the district court concluded that 87 months was the appropriate sentence. The court’s considered decision, based on legally appropriate factors, was not an abuse of discretion. *763III. Accordingly, we conclude that the district court did not abuse its discretion in reducing Blaso’s sentence from 100 months to 87 months, rather than to 80 months, and that there are no non-frivolous issues presented on appeal, and we will affirm the judgement of sentence and grant counsel’s motion to withdraw. . In reducing Blaso's original base offense level by four levels for substantial assistance and then imposing a below-Guidelines sentence of 100 months, the district court in effect imposed a sentence that was approximately 40.5% below the lower end of the original Guidelines range. . We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). As noted, we review the district court's decision for an abuse of discretion. See United States v. Mateo, 560 F.3d 152, 154 (3d Cir.2009).	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8473856/	OPINION OF THE COURT FUENTES, Circuit Judge: Appellant Clarence Mitchell was convicted of, inter alia, possession with intent to distribute cocaine and possession of a firearm in furtherance of drug trafficking. Before his trial, he filed a motion to suppress evidence recovered during a search of 3411 North Franklin Place in Wilmington, Delaware, a residence owned by his wife, and the statements that he made to police following the search. Upon review of the affidavit and application for a search warrant, the District Court denied the motion, holding that the detectives acted in good faith in relying on the warrant. At trial, following the close of the government’s evidence, Mitchell moved for a judgment of acquittal on the possession of a firearm in furtherance of drug traffiek764ing count. The District Court reserved judgment, and the jury subsequently returned a guilty verdict. After the verdict, Mitchell renewed his motion for acquittal, which was denied by the District Court. On appeal, Mitchell challenges the denial of his suppression and acquittal motions. For the reasons that follow, we will affirm the District Court.1 I. Because we write primarily for the parties, we only discuss the facts and proceedings to the extent necessary for the resolution of the case. Wilmington Police Department (“WPD”) Detectives Todd Riley and Robert Cunningham conducted a ten-week undercover investigation of appellant Clarence Mitchell. On five separate occasions, an informant made controlled purchases of crack cocaine from Mitchell. Following each purchase, members of WPD covertly tailed Mitchell in an effort to establish his residence. After the first purchase, the officers lost Mitchell. During the second purchase, Mitchell was driving a blue Jeep Cherokee, which was registered to Mitchell’s mother at her residence. The officers conducted surveillance at this residence; Mitchell was never observed there, although another vehicle that he operated, a blue Ford Taurus, was seen at this location. After the second purchase, the officers tailed Mitchell to a bar. After the third controlled purchase, officers followed Mitchell to a barber shop, where he remained for approximately twenty minutes. Mitchell then drove the blue Jeep Cherokee to the residence at 3411 North Franklin Place, where he stayed for approximately twenty minutes before departing. When officers returned to this location two hours later, the blue Jeep Cherokee was parked on the same block as the residence, which was owned by Denise Smiley, Mitchell’s wife.2 During subsequent surveillance at this address, officers observed Mitchell arrive at the residence in the blue Ford Taurus that had been seen at Mitchell’s mother’s residence. Mitchell entered the residence, stayed for a short time, then exited and drove towards center-city Wilmington. Mitchell drove the same Ford Taurus to the fourth controlled purchase. After the purchase, police terminated surveillance of Mitchell when he entered the center-city area. For the fifth controlled purchase, the officers had the informant call Mitchell, order drugs, and arrange a meeting spot. Surveillance officers then observed Mitchell exit a barber shop, drive to 3411 North Franklin Place, enter the residence, remain inside for five minutes, exit the residence, and drive to meet the informant. After the purchase, officers followed Mitchell back to the barber shop. During 765the investigation, officers also conducted surveillance at Mitchell’s last known residence, but at no time during the investigation was Mitchell or any of the vehicles he operated during the controlled purchases observed at this address. After the fifth controlled purchase, Detectives Riley and Cunningham applied for a search warrant for the residence at 3411 North Franklin Place. Based on an affidavit detailing the investigation, a Judge of the Justice of the Peace Court # 20 for the State of Delaware found that the detectives had probable cause to search 3411 North Franklin Place and issued a search warrant. On December 27, 2007, the detectives executed the search warrant and recovered approximately 4.5 ounces of cocaine; drug packing paraphernalia, including three plastic bags with a white powdery residue and small plastic bags commonly used for packaging crack cocaine; approximately $6,415 in cash; and, underneath the mattress, a loaded .357 Sig Sauer firearm. Thereafter, Mitchell was indicted for being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2) (Count 1); possession with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(c) (Count 2); and possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A) and (c)(2) (Count 3). Mitchell filed an Amended Motion to Suppress Evidence and Statements, challenging the search of 3411 North Franklin Place and the admissibility of his subsequent statements to the police. On July 30, 2008, the District Court denied Mitchell’s suppression motion in a Memorandum Order. In ruling on the suppression motion, the District Court did not reach the issue of whether the judicial officer who issued the search warrant had a substantial basis for finding probable cause. Instead, the Court ruled that the good faith exception of United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), applied as “it was objectively reasonable for the detectives to rely on the Justice of the Peace Court’s determination that probable cause existed when they searched 3411 Franklin Place.” (App.18.) The District Court conducted a jury trial on Counts 2 and 3 of the Indictment. After the close of the government’s evidence, Mitchell made a motion for judgment of acquittal on Count 3, the § 924(c) count, pursuant to Federal Rule of Criminal Procedure 29 (“Rule 29”). The Court reserved judgment on the motion. After the jury found Mitchell guilty of Counts 2 and 3, Mitchell renewed his Rule 29 motion, which the District Court denied. The Court then accepted Mitchell’s guilty plea to Count 1. Subsequently, the District Court sentenced Mitchell to 24 months’ imprisonment on Counts 1 and 2, to be served concurrently, and 60 months’ imprisonment on Count 3, to be served consecutively. On appeal, Mitchell challenges the denial of his suppression and Rule 29 motions. With respect to the suppression motion, he argues that the detectives did not have probable cause to search 3411 North Franklin Place and that the Leon good-faith exception was inapplicable. With respect to the Rule 29 motion, he contends that the evidence at trial was insufficient to prove that he knowingly possessed a firearm in furtherance of a drug trafficking crime. II. In an extensive written opinion ruling on Mitchell’s motion to suppress, the District Court carefully and thoroughly considered the contentions that the parties raise in this appeal. After a complete review of the record, including the detectives’ affidavit and application for a search warrant, and the parties’ arguments, we find no 766basis for disturbing the District Court’s ruling. Therefore, we will affirm the denial of Mitchell’s motion to suppress for the reasons set forth by the District Court in its written opinion. See United States v. Mitchell, No. 08-cr-23, 2008 WL 2942142 (D.Del. July 30, 2008). In reviewing the grant or denial of a Rule 29 motion, we exercise plenary review and independently apply the same standard as the district court. Silveus, 542 F.3d at 1002. That standard of review is deferential, “viewing ‘the record in the light most favorable to the prosecution to determine whether any rational trier of fact could have found proof of guilt beyond a reasonable doubt based on the available evidence.’ ” Id. (quoting United States v. Smith, 294 F.3d 473, 476 (3d Cir.2002)) (further citation omitted). “A finding of insufficiency [of the evidence] should ‘be confined to cases where the prosecution’s failure is clear.’ ” Smith, 294 F.3d at 476 (quoting United States v. Leon, 739 F.2d 885, 891 (3d Cir.1984)). When a defendant moves for a judgment of acquittal at the close of the government’s case and the district court reserves decision on the motion, the district court must “determine whether an acquittal was appropriate based solely on the evidence presented by the government.” United States v. Brodie, 403 F.3d 123, 133 (3d Cir.2005) (citing Fed.R.Crim.P. 29(b)). We are “similarly limited” and will “examine only ... the evidence presented in the government’s case, which includes evidence elicited on cross-examination of the government’s witnesses, but not evidence presented in the defense case.” Id. at 133-34 (internal quotation marks & citations omitted). Specifically, we will not consider the testimony of defense witnesses Denise Smiley and Pearl A. Ponzo. The essential elements of knowing possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c) are: (1) the defendant committed the crime of possession with intent to distribute a controlled substance; (2) the defendant knowingly possessed a firearm; and (3) the defendant knowingly possessed the firearm in furtherance of the crime of possession with intent to distribute. United States v. Bobb, 471 F.3d 491, 496 (3d Cir.2006). Mitchell argues that the government’s evidence was insufficient to prove the third element — that he possessed the gun in furtherance of a drug trafficking crime. To establish the third element, “the ‘mere presence’ of a gun is not enough.... [T]he evidence must demonstrate that possession of the firearm advanced or helped forward a drug trafficking crime.” United States v. Sparrow, 371 F.3d 851, 853 (3d Cir.2004) (citations omitted). In making this assessment, we consider the following nonexclusive factors: the type of drug activity that is being conducted, accessibility of the firearm, the type of the weapon, whether the weapon is stolen, the status of the possession (legitimate or illegal), whether the gun is loaded, proximity to drugs or drug profits, and the time and circumstances under which the gun is found. Id. (quoting United States v. Ceballos-Torres, 218 F.3d 409, 414-15 (5th Cir.2000)). The record in the instant case demonstrates that many of the Ceballos-Ton'es factors are satisfied. A Sig Sauer .357 is a semiautomatic handgun, which, according to Detective Cunningham, can be concealed on a person. Mitchell, as a prior felon, could not lawfully possess a firearm. Moreover, at trial the government presented evidence that the firearm was stolen and that Mitchell bought it “on the street.” (Gov’t Ex. 5, Clip 2.) The gun was found, loaded, under the mattress in the bedroom at 3411 North Franklin Place, where it was easily accessible. During the same search, police retrieved approximately $6,415 in 767cash from the house and approximately 4.5 ounces of cocaine from the garage in the rear yard. Mitchell stated that he bought the gun “[b]eeause [he] was kind of scared ... because jokers was shooting jokers. They were running up on the block and robbing people.... They catch the jokers going in their house and robbing them.... ” (App.330.) Based on this evidence, a rational juror could reasonably find that Mitchell possessed the firearm to protect the drugs and drug proceeds located at 3411 North Franklin Place, a type of possession that “furthers, advances, or helps forward” drug trafficking.3 Ceballos-Torres, 218 F.3d at 415. III. For the foregoing reasons, we affirm the District Court’s denial of Mitchell’s motion to suppress and the denial of his Rule 29 motion for judgment of acquittal. . The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. This Court has jurisdiction pursuant to 28 U.S.C. § 1291. "[Wjhen a district court, in reviewing a magistrate's determination of probable cause, bases its probable cause ruling on facts contained in an affidavit, we exercise plenary review over the district court's decision.” United States v. Ritter, 416 F.3d 256, 261 (3d Cir.2005) (citation omitted). Both our court and the district court review the magistrate’s initial probable cause determination deferentially. Id. Our review of a district court's conclusion regarding the applicability of the good faith exception is plenary. United States v. Hodge, 246 F.3d 301, 307 (3d Cir.2001) (citations omitted). "We exercise plenary review over a district court’s grant or denial of a motion for acquittal based on the sufficiency of the evidence, applying the same standard as the district court." United States v. Silveus, 542 F.3d 993, 1002 (3d Cir.2008) (citation omitted). . The record does not indicate that police knew that Smiley and Mitchell were married at the time of their surveillance or of their application for the challenged warrant. . The government also argues that the evidence was sufficient for a rational juror to find that Mitchell brought the firearm with him for protection while he engaged in drug sales. In light of our conclusion that the evidence was sufficient to support a finding that Mitchell possessed the gun to protect his drug and drag proceeds, we see no need to rule on the government’s alternative argument.	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8473862/	OPINION SMITH, Circuit Judge. In this Chapter 11 reorganization case about a 1993 indenture (the “Indenture”), Law Debenture Trust Company of New York (“LDTC”), the indenture trustee under the Indenture, challenges the subordination of a guarantee made in the Indenture (the “1993 Guarantee”) to later guarantees (the “1994 and 1996 Guarantees”) that it believes were improperly designated as “Senior Indebtedness” under the Indenture. Opposing LDTC are the indenture trustees and noteholders for the notes that were the subject of the 1994 and 1996 Guarantees (collectively, the “1994 and 1996 Noteholders”). LDTC raises two issues on appeal.1 First, it claims that the District Court erred in affirming the Bankruptcy Court’s conclusion that the 1994 and 1996 Guarantees could be designated as Senior Indebtedness under the Indenture. Second, it argues that the District Court erred by permitting the Bankruptcy Court’s consideration of extrinsic evidence when construing the Indenture. Our conclusion on the first issue disposes of this appeal and obviates the need for discussion of extrinsic evidence. We will affirm the District Court’s conclusion that the Indenture permitted the designations of the 1994 and 1996 Guarantees as Senior Indebtedness. As such, the 1993 Guarantee is subordinated to the 1994 and 1996 Guarantees. I. In 1993, Kaiser Aluminum & Chemical Corporation (“KACC”) issued $400 million in notes (the “1993 Notes”) under the Indenture. These notes were guaranteed, in the 1993 Guarantee, by KACC’s subsidiaries: Kaiser Aluminum Australia, Alpart Jamaica, and Kaiser Jamaica (the “Subsidiary Guarantors”). In 1994 and 1996, KACC issued additional notes (the “1994 and 1996 Notes”) in the amounts of $225 million and $175 million, respectively. Like the 1993 Notes, the 1994 and 1996 Notes were guaranteed, in the 1994 and 1996 Guarantees, by the Subsidiary Guarantors. In 2002, KACC and each of the Subsidiary Guarantors filed Chapter 11 reorganization petitions. LDTC moved the Bankruptcy Court to determine the relative priority of the 1993 Guarantee vis-á-vis the 1994 and 1996 Guarantees, and the parties agreed to convert the motion into an objection to the proposed Chapter 11 reorganization plan offered by KACC and the Subsidiary Guarantors. Both parties agree that the Indenture controls the relative priority of the 1993, 1994, and 1996 Guarantees. LDTC asserts that the 1994 and 1996 Guarantees cannot be designated as Senior Indebtedness under the Indenture and, therefore, the 1993 Guarantee is not subordinated to the 1994 and 1996 Guarantees. The 1994 and 1996 Noteholders, on the other hand, claim that the 1994 and 1996 Guarantees qualify as Senior Indebtedness under the Indenture and therefore have priority over the 1993 Guarantee. 777The Bankruptcy Court, in concluding that the 1994 and 1996 Guarantees were properly designated as Senior Indebtedness under the Indenture, noted that “it [was] abundantly clear that the [pari passu treatment of the 1993, 1994, and 1996 Guarantees] suggested by LDTC was not created by the Indenture.” Accordingly, the Bankruptcy Court overruled LDTC’s objection to the proposed Chapter 11 reorganization plan. LDTC appealed to the District Court, which affirmed the Bankruptcy Court’s order. LDTC now appeals to this Court. II. LDTC’s first argument, that the 1994 and 1996 Guarantees could not be designated as Senior Indebtedness under the Indenture, is based on its rejection of the Bankruptcy Court’s construction of the Indenture. We review that construction de novo. STV Eng’rs, Inc. v. Greiner Eng’g, Inc., 861 F.2d 784, 787 (3d Cir.1988). As described below, we conclude that when a Subsidiary Guarantor attempts reorganization, Article 16 of the Indenture subordinates guarantees that are not Senior Indebtedness to all Senior Indebtedness of that Subsidiary Guarantor. We also conclude that the definition of Senior Indebtedness, contained in Article 1 of the Indenture, permitted KACC to designate the 1994 and 1996 Guarantees as Senior Indebtedness and that it properly did so. A. Article 16 of the Indenture Subordinates all of a S'libsidiary Guarantor’s Guarantees that are not Senior Indebtedness to all Senior Indebtedness. Section 16.02 of the Indenture subordinates each Subsidiary Guarantor’s obligations under the 1993 Guarantee to the Senior Indebtedness of that Subsidiary Guarantor. It states that “all payments pursuant to the [1993] Guarantee by [any] Subsidiary Guarantor are hereby expressly subordinated ... in right of payment to the prior payment in full ... of all Senior Indebtedness of [that] Subsidiary Guarantor.” In the event of a Subsidiary Guarantor’s reorganization, Section 16.03 provides “the holders of all Senior Indebtedness of [the] Subsidiary Guarantor [the right] to receive payment in full ... before the holders of the [1993] Notes or the Trustee on behalf of the noteholders shall be entitled to receive, pursuant to the [1993] Guarantee, any direct or indirect payment or distribution on or with respect to the [1993] Notes.” In other words, if a Subsidiary Guarantor is reorganizing, it must pay the holders of its Senior Indebtedness in full prior to any payment it is obligated to make under the 1993 Guarantee. Because the Subsidiary Guarantors are reorganizing, Section 16.03 applies and the holders of their Senior Indebtedness are entitled to payment prior to any payment under the 1993 Guarantee. B. The Definition of Senior Indebtedness Permitted the 1991 and 1996 Guarantees to be Designated as Senior Indebtedness. To designate a certain indebtedness as Senior Indebtedness, KACC must provide notice of the designation in writing and the type of indebtedness must fall under one of the categories described in the definition of Senior Indebtedness, which is located in Section 1.01 of the Indenture. It is undisputed that KACC provided proper notice for the 1994 and 1996 Guarantees. Accordingly, the crux of this appeal rests on whether the Indenture permits the 1994 and 1996 Guarantees, guarantees made by the Subsidiary Guarantors for KACC’s 1994 and 1996 Notes, to be designated as Senior Indebtedness. The 1994 and 1996 Noteholders argue that clauses (ii)(A)(l) and (ii)(D) of the 778definition of Senior Indebtedness permitted designation of those guarantees as Senior Indebtedness. We agree. Clause (ii)(A)(l), as applied to each Subsidiary Guarantor, states that “the principal of, premium, if any, and interest on all indebtedness of [the Subsidiary Guarantor] for money borrowed (including all such indebtedness evidenced by notes, debentures or other securities issued for money, whether issued or assumed by [the Subsidiary Guarantor])” may be designated as Senior Indebtedness by KACC. A guarantee involves an “agreefment] to answer for a debt or default.” Black’s Law Dictionary 773 (9th ed.2009). Such agreements are “[a] promise to answer for the payment of some debt ... in case of the failure of another who is liable in the first instance.” Id. (defining “guaranty”). The Subsidiary Guarantors assumed indebtedness, the promise to answer for KACC’s debts in case of its failure to repay money borrowed, by guaranteeing the 1994 and 1996 Notes. LDTC argues that such an understanding of the Indenture would render clause (ii)(A)(5) of the definition of Senior Indebtedness superfluous. That clause states that “all guarantees by [the Subsidiary Guarantor] of any indebtedness referred to in ... clause (ii)(A) of any Subsidiary of [the Subsidiary Guarantor]” may be designated as Senior Indebtedness if proper notice is issued by KACC. LDTC properly notes that clause (ii)(A)(5) only covers a Subsidiary Guarantor’s guarantees of its own subsidiaries.2 If clause (ii)(A)(l) covers all guarantees, then, according to LDTC, clause (ii)(A)(5) would serve no purpose because it covers a subset of all guarantees. To avoid rendering clause (ii)(A)(5) superfluous, LDTC asserts, clause (ii)(A)(I) must be construed to exclude guarantees. We disagree with LDTC’s argument. Clause (ii)(A)(l) is narrower than clause (ii)(A)(5), because the former is limited to indebtedness for money borrowed, whereas the latter includes all guarantees, for any purpose, made by a Subsidiary Guarantor for its own subsidiaries. For example, clause (ii)(A)(5) would include a Subsidiary Guarantor’s guarantee of a subsidiary’s lease obligations, while clause (ii)(A)(l) would not. Some overlap in the two clauses is not fatal, especially in light of the other overlapping provisions in the definition of Senior Indebtedness.3 LDTC also argues that we must presume that the Indenture intended to exclude a Subsidiary Guarantor’s guarantee of a parent company because clause (ii)(A)(5) only covers a Subsidiary Guarantor’s guarantee of a subsidiary. LDTC’s 779argument runs contrary to the structure of the Indenture. Clauses (a) through (e) of the definition of Senior Indebtedness exclude specific categories of indebtedness from being designated as Senior Indebtedness. Guarantees of a parent company are not categorically excluded in those clauses. The mere presence of the exclusion clauses negates LDTC’s argument that the Indenture was intended to implicitly exclude guarantees of a parent company. If the Indenture was intended to exclude such guarantees, the exclusion could have been listed with the other exclusion clauses. In short, we will not presume an implicit exclusion of guarantees of a parent company where the Indenture has exclusion clauses. Finally, LDTC argues that clause (ii)(A)(l) covers only money borrowed by each Subsidiary Guarantor. LDTC would have us include additional terms in clause (ii)(A)(l) so that it reads as follows: “all indebtedness of such Person for money borrowed [by such Person ].” This Court, however, is prohibited from adding terms to the Indenture. W.W.W. Assocs. v. Giancontieri, 77 N.Y.2d 157, 565 N.Y.S.2d 440, 566 N.E.2d 639, 642 (1990) (“[W]hen parties set down their agreement in a clear, complete document, their writing should as a rule be enforced according to its terms.”)4. “Indebtedness for money borrowed,” including “notes ... whether issued or assumed,” may be designated as Senior Indebtedness. The Subsidiary Guarantors’ assumptions of indebtedness for money borrowed by KACC through the 1994 and 1996 Guarantees, therefore, is covered under clause (ii)(A)(l). The designations of the 1994 and 1996 Guarantees as Senior Indebtedness were also proper under clause (ii)(D). That clause, as applied to each Subsidiary Guarantor, states that “all penalties, fees, premiums, expenses, reimbursements, indemnity obligations and all other monetary obligations of [the Subsidiary Guarantor] in respect of any Indebtedness, obligation, or guarantee described [anywhere in clause (ii) of the definition of Senior Indebtedness]” may be designated as Senior Indebtedness by KACC. LDTC concedes that the 1994 and 1996 Notes are Senior Indebtedness under the Indenture. The 1994 and 1996 Guarantees were monetary obligations undertaken by the Subsidiary Guarantors in respect of the 1994 and 1996 Notes issued by KACC. Therefore, the 1994 and 1996 Guarantees may properly be designated as Senior Indebtedness under clause (ii)(D). LDTC argues that the monetary obligations incurred by each Subsidiary Guarantor must be in respect of its own “Indebtedness, obligation, or guarantee” that could otherwise be properly designated as Senior Indebtedness. LDTC’s construction of clause (ii)(D) cannot be reconciled with the text. See W.W.W. Assocs., 565 N.Y.S.2d 440, 566 N.E.2d at 642. Clause (ii)(D) states that each Subsidiary Guarantor’s monetary obligation may arise from “any Indebtedness, obligation or guarantee,” that would otherwise qualify as Senior Indebtedness under clause (ii). This includes KACC’s 1994 and 1996 Notes and any other “Indebtedness, obligation, or guarantee” of any entity that would otherwise qualify as Senior Indebtedness under clause (ii) of the Indenture, not just the Subsidiary Guarantor’s “Indebtedness, obligations and guarantees.” III. LDTC also argues that the Bankruptcy Court’s evaluation of extrinsic evidence was improper under New York law. Because the Indenture is unambiguous, we resolve this appeal on the construction of 780the Indenture alone and need not discuss extrinsic evidence. IV. The Indenture’s definition of Senior Indebtedness permitted designation of the 1994 and 1996 Guarantees as Senior Indebtedness. Because the Indenture’s language is unambiguous, this Court need not address whether the extrinsic evidence was properly admitted. Accordingly, we will affirm the District Court’s judgment. . This Court has jurisdiction under 28 U.S.C. § 158(d) and 28 U.S.C. § 1291. . KACC cannot designate the 1994 and 1996 Guarantees as Senior Indebtedness under clause (ii)(A)(5) because it is the parent company of the Subsidiary Guarantors. . Clauses (ii)(A)(l), (ii)(A)(5), and (ii)(A)(7) are illustrative. Clause (ii)(A)(7) covers “all obligations of [a Subsidiary Guarantor] in connection with the issuance of industrial revenue bonds.” Assuming, hypothetically, that a subsidiary of a Subsidiary Guarantor issued industrial revenue bonds, that proper written notice was provided, and that the Subsidiary Guarantor guaranteed those industrial revenue bonds, clauses (ii)(A)(l), (ii)(A)(5), and (ii)(A)(7) would all permit the guarantee to be designated as Senior Indebtedness. Clause (ii)(A)(l) would apply because the indebtedness incurred was for money borrowed, (ii)(A)(5) would apply because it was a guarantee of a subsidiary by a Subsidiaiy Guarantor, and (ii)(A)(7) would apply because it was an “obligation” incurred by the Subsidiary Guarantor in connection with the issuance of industrial revenue bonds. Clause (ii)(D) also shows the Indenture’s tolerance of superfluous drafting — it contains overlap even within itself. It uses the phrase "Indebtedness, obligation or guarantee” yet the definition of "Indebtedness” in Section 1.01 of the 1993 Indenture includes at least some obligations and all guarantees. . Section 15.04 of the Indenture states that the Indenture is governed by New York law.	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8473864/	OPINION SMITH, Circuit Judge. In this appeal, Ray Hunter Sutton, Jr., an individual who waived indictment and pleaded guilty to a single count of possession and attempted possession of material depicting the sexual exploitation of a minor, 18 U.S.C. §§ 2252(a)(4)(B) and 2252(b)(2), appeals his sentence of 105 months. Sutton claims that his sentence suffers from procedural and substantive deficiencies that require re-sentencing. This Court has jurisdiction over Sutton’s appeal under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). Sutton raises three challenges to his sentence. First, he claims that the sentence was procedurally flawed because the District Court did not address his request for a downward variance. Second, Sutton argues that United States Sentencing Guidelines § 2G2.2 disproportionately elevated his sentencing guideline range. Third, Sutton argues that the 105 month sentence was greater than necessary and a variance was needed to achieve a reasonable sentence. We reject each of these arguments and will affirm the District Court’s judgment. A district court’s sentencing decision is reviewed for an abuse of discretion. Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007); United States v. Tomko, 562 F.3d 558, 567 (3d Cir.2009). Appellate review proceeds in two stages. First, this Court “ ‘ensur[es] that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence — including an explanation for any deviation from the Guidelines range.’ ” Tomko, 562 F.3d at 567. (quoting Gall, 128 S.Ct. at 597). “We do not presume that a district court considered the factors solely because the sentence falls within the Guidelines range.” Id. At stage two, we examine the substantive reasonableness of the sentence imposed. Id. In doing so, this Court considers “the totality of the circumstances,” and does not “presume that a sentence is unreasonable simply because it falls outside the advisory Guidelines range.” Id. (citing Gall, 128 S.Ct. at 597). “At both stages of our review, the party challenging the sentence has the burden of demonstrating unreasonableness.” Id. “[Ajbsent any significant procedural error, we must ‘give due deference to the district court’s determination that the § 3553(a) factors, on a whole,’ justify the sentence.” Id. at 568 (quoting Gall, 128 S.Ct. at 597). “In other words, if the ... 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.” Id. I. On February 10, 2008, a Pennsylvania State Police trooper conducted an undercover Internet investigation utilizing a peer-to-peer file sharing network known as Gnutella. Gnutella permits a user to search for and download files contained on other Gnutella network users’ computers. The trooper searched the Gnutella network for child pornography and found at least five such images1 on a computer that 782was later determined, through tracing the Internet Protocol address, to be owned by-Sutton. On April 25, 2008, FBI agents and Pennsylvania State Police executed a search of Sutton’s home and seized two laptops and an external USB drive. Later examination of those devices revealed that Sutton possessed multiple images of child pornography and at least 37 videos of child pornography. On June 27, 2008, a federal information was filed charging Sutton with a single count of possession and attempted possession of material depicting the sexual exploitation of a minor, in violation of 18 U.S.C. §§ 2252(a)(4)(B) and 2252(b)(2) on various dates from in or around January 2008 to in or around April 2008. On July 31, 2008, Sutton appeared before the District Court, waived indictment by a grand jury, and entered a guilty plea. Sutton’s sentencing hearing was held on December 2, 2008. At the outset of the hearing, the District Court noted that it had reviewed Sutton’s psychological evaluation and a letter from his former mother-in-law supporting a lenient sentence. The District Court then asked Sutton if there were any other documents that should be reviewed. Sutton produced a letter from his ex-wife that he had received the day before the sentencing hearing. After Sutton produced the letter, the District Court permitted Sutton’s counsel to “make some references to ... things that [he thought were] pertinent for the court’s consideration” in sentencing. Sutton’s counsel then highlighted numerous aspects of Sutton’s psychological evaluation, including: • Sutton’s desire to curtail his unhealthy sexual practices and his guilt and remorse for his crime; • Sutton’s alcoholism and its effect on his judgment; • Sutton’s only “moderate risk for re-offending” without therapeutic intervention; and, • The belief that therapy would help rehabilitate Sutton. Sutton’s counsel also mentioned the importance of reviewing the personal letters written in support of Sutton and considering Sutton’s sexual abuse as a child when sentencing him. After reviewing the psychological evaluation, the personal letters, and Sutton’s sexual abuse as a child, Sutton’s counsel argued that U.S.S.G. § 2G2.2 disproportionately elevated Sutton’s sentence. Sutton’s counsel challenged the five-level increase for the number of depictions of child pornography. He argued that the number of depictions of child pornography possessed by the offender has no correlation to “how horrendous a specific offense would be or how likely or unlikely an individual is to re-offend in the future” and that U.S.S.G. § 2G2.2 lacked any “scientific or empirical basis.” Sutton’s counsel also challenged the four-level increase for sadomasochistic depictions based on the same alleged lack of empirical or scientific data. In response to the number-of-depictions challenge, the Government argued that “it’s just a common sense proposition that if a defendant has 2,000 images, he obviously has a keener interest in child pornography than the defendant that has 200 images.” The Government, in addressing 783the challenge to the four-level increase for sadomasochistic depictions, stated that the “types of images which ... Sutton ha[d] reflected] greater harm on a child than images that an individual could have which don’t depict those types of things.” The Government also noted, among other things, Sutton’s prior conviction for indecent assault against a 10-year-old child and his ability to hide his interest in child pornography from the people who knew him best. At that point, the District Court took a short recess, reviewed the letter from Sutton’s ex-wife and then proceeded to address the § 3553(a) sentencing factors. After doing so, the District Court sentenced Sutton to 105 months in prison and fifteen years of supervised release. Sutton now appeals his sentence. II. A. The District Court properly considered Sutton’s requests for a variance. Sutton asserts that the District Court failed to address his request for a variance based on his psychological evaluation, the personal letters written in support of him, and prior sexual abuse he suffered as a child. Sutton also claims that the District Court failed to address his arguments challenging the Sentencing Guidelines’ five-level increase for the number of images and four-level increase for possession of sadomasochistic depictions of child pornography. The record indicates otherwise. The District Court specifically considered the psychological evaluation, the personal letters written in support of Sutton, and the sexual abuse Sutton suffered as a child, in fashioning the sentence. The challenges to the Sentencing Guidelines raised by Sutton were also considered and rejected. Beyond these considerations, the District Court noted Sutton’s steady employment, the need to protect the public, the need to impose a sentence with sufficient deterrent value, and the need to treat similarly situated defendants in a similar fashion. As a whole, the District Court most certainly “adequately explain[ed] the chosen sentence.” See Gall, 128 S.Ct. at 597. B. United States Sentencing Guidelines Section 2G2.2 did not disproportionately elevate Sutton’s sentencing guideline range. Sutton, citing Kimbrough v. United States, 552 U.S. 85, 128 S.Ct. 558, 564, 169 L.Ed.2d 481 (2007), argues that U.S.S.G. § 2G2.2 disproportionately elevated his sentencing guideline range. Sutton’s argument is unavailing. First, the Supreme Court’s holding in Kimbrough pertains only to the crack/powder disparity in the Sentencing Guidelines for cocaine. Kimbrough, 128 S.Ct. at 575-76; Spears v. United States, — U.S. —, —, 129 S.Ct. 840, 843, 172 L.Ed.2d 596 (2009) (per curiam) (“[T]he point of Kimbrough [was] the recognition of district courts’ authority to vary from the crack cocaine Guidelines based on a policy disagreement with them.”). Second, even assuming, hypothetically, that the Kimbrough decision pertained to U.S.S.G. § 2G2.2, Sutton’s sentence would not run contrary to the holding of Kimbrough since the District Court neither expressed a policy disagreement with the Sentencing Guidelines nor attempted to give Sutton a below-Guidelines sentence. Indeed, the opposite is true. See Kimbrough, 128 S.Ct. at 575-76. The District Court explicitly agreed with the Sentencing Guidelines and gave Sutton a within-Guidelines sentence.2 784 C. Sutton’s sentence was substantively reasonable. Sutton also argues that his sentence was substantively unreasonable. Citing his cooperation with authorities, his psychological evaluation, his interest in seeking therapy, and the sexual abuse he suffered as a child, Sutton claims that a downward variance was required to achieve a reasonable sentence. Given that this Court conducts substantive review of the District Court’s sentencing decision by viewing the “totality of the circumstances,” Tomko, 562 F.3d at 567 (citing Gall, 128 S.Ct. at 597), and will affirm “unless no reasonable sentencing court would have imposed the same sentence on that particular defendant for the reasons the district court provided,” id. at 568, this Court concludes that the District Court’s sentence was substantively reasonable. The District Court considered a variety of circumstances surrounding Sutton’s crime, including all of the issues raised by Sutton in this appeal, in fashioning his sentence. It cited: the seriousness of the crime; the significant number of images and the nature of those images; the sexual abuse Sutton suffered as a child; the personal letters written in support of Sutton; Sutton’s employment; Sutton’s prior conviction for indecent assault; the goal of imposing a sentence that is sufficient but not greater than necessary; the psychological evaluation; the need to treat similarly-situated defendants the same; and Sutton’s rehabilitative potential. Having reviewed all that information, the District Court reached its decision to sentence Sutton to 105 months in prison. As a whole, the record reflects a “rational and meaningful consideration of the factors enumerated in 18 U.S.C. § 3553(a).” See Tomko, 562 F.3d at 568 (quoting United States v. Grier, 475 F.3d 556, 571 (3d Cir.2007) (en banc)). Accordingly, this Court rejects Sutton’s argument that his sentence was substantively unreasonable. III. Because the District Court acted properly within its discretion in sentencing Sutton to 105 months in prison, and because Sutton’s requests for a downward variance were considered, we will affirm the District Court’s judgment. . The trooper was able to identify these five images as child pornography by matching the 782SHA 1 hash value, a kind of digital fingerprint, of each image that Sutton was sharing on the Gnutella network with that of a child pornography image contained in a national database of known images of child pornography used by law enforcement. At the time of the trooper’s investigation, Sutton also appeared to be sharing numerous other files with titles suggestive of child pornography, though those files could not be matched to files from the national database. . In response to Sutton's argument, the District Court specifically noted: “I do not find that the increase for the number of images or for the nature of the images in any sense unreasonable. And I think it’s rationally related to valid sentencing objectives."	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8473866/	OPINION OF THE COURT NYGAARD, Circuit Judge. Dubrow appeals the District Court’s grant of summary judgment in favor of the City of Philadelphia and prison officials, dismissing Dubrow’s Fourteenth Amendment state-created danger claims. Because our opinion is wholly without precedential value, and because the parties and the District Court are familiar with its operative facts, we offer only an abbreviated recitation to explain why we will affirm the order of the District Court. Dubrow was employed as a mental health nurse at the Philadelphia Industrial Correctional Facility, part of the Philadelphia Prison System. Dubrow walked into a new office unaware that, unlike the other unit in which she routinely worked, the door did not automatically lock behind her. Shortly after, a prisoner also entered the room and began to molest her. Dubrow had no means of summoning help, and had to resort to threatening the prisoner with a kick to his groin if he did not cease. At that time, Dubrow’s supervisor came upon the scene and intervened. The prisoner backed away from Dubrow and was subdued. We have jurisdiction under 28 U.S.C. § 1291. We exercise plenary review over a district court’s order of summary judgment. Kaucher v. County of Bucks, 455 F.3d 418, 422 (3d Cir.2006). On a foundational level, we agree with the District Court that Due Process violations are rooted in an abuse of power or deprivation of liberty. Generally speaking, her presence in the prison facility as an employee did not constitute a deprivation of her liberty that could impose a duty on state actors to ensure a person’s safety. More specifically, while the state-created danger theory of due process violations is an exception to the general rule that the state is not responsible for preventing acts of private harm, we concur with the District Court that it is not applicable to this case. As the District Court properly concluded, Dubrow’s allegations of poor sight-lines between a guard post and the new office, improper door locks, and failures to train or warn her of new safety risks constitute mistakes that are, at most, negligence. Acts of omission by state actor employers of this sort generally do not rise to the level of a constitutional violation. *786Dubrow also contends that the District Court ignored her expert’s testimony. However, we found nothing in the report substantiating Dubrow’s allegation that the City or prison officials willfully or recklessly disregarded threats to her safety that created the harm she experienced. The harm that the prisoner caused Ms. Dubrow is detestable. Nonetheless, for all of the reasons stated above, we conclude that the District Court properly dismissed Dubrow’s Fourteenth Amendment state-created danger claims.	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8473868/	OPINION OF THE COURT PER CURIAM. Rasheen Johnson, a federal inmate, appeals from the denial of his habeas corpus petition under 28 U.S.C. § 2241. We will affirm. In 2005, while housed at FCI-Greenville in Illinois, Johnson was charged in an inci787dent report with extortion. According to the charge, Johnson demanded, on three occasions, that a fellow inmate send thousands of dollars to a post office box in Johnson’s mother’s name, and threatened to have his “people” harm the inmate’s wife if he refused. Given the seriousness of the charge, a Unit Disciplinary Committee referred the matter to a Discipline Hearing Officer (“DHO”). At a hearing, Johnson denied engaging in extortion and claimed that he was owed the money for a gambling debt. Johnson pi’esented an inmate witness, who stated, among other things, that “[fit’s all over the compound that [the inmate victim] is trying to get [Johnson] for extortion.” The evidence before the DHO also included (i) copies of money orders sent by the inmate victim’s relative to Johnson’s mother, and (ii) a report by a Special Investigative Service Officer regarding interviews with the inmate victim and another inmate who claimed to have witnessed Johnson’s actions. The DHO sustained the charge, explaining that he found the statements given by the inmate victim and his corroborating witness more credible than Johnson’s denial. The DHO found that Johnson had jeopardized the safety of other inmates and them families, and that “[he] and [his inmate] witness would have everything to gain and nothing to lose by not telling the truth.” The DHO also observed that the testimony of Johnson’s inmate witness dealt in “generalities” by referring solely to what he “ ‘heard’ on the compound.” As a sanction, the DHO imposed twenty-one days of disciplinary segregation, disallowed twenty-seven days of good-conduct time, and recommended a disciplinary transfer. Johnson appealed to the North Central Regional Office, challenging the DHO’s decision to discredit his testimony. The Regional Office denied the appeal. It found that while the DHO did “give more credibility to the [inmate victim’s] statement^] ... he also relied on other evidence.... In addition, ... the DHO met the standards of fairness, impartiality, and burden of evidence on which to support his finding.” Johnson next appealed to the Office of General Counsel, again challenging the DHO’s decision to find the evidence of extortion more credible and sufficient to sustain the charge. The Office of General Counsel denied the appeal. It agreed with the DHO that the evidence supports a finding of extortion, and it observed that “the required disciplinary procedures were substantially followed, the greater weight of the evidence supports the DHO’s decision, and appropriate sanctions were imposed.” Johnson filed a habeas petition under 28 U.S.C. § 2241 in the United States District Court for the Southern District of Illinois challenging the disciplinary proceeding and resulting loss of good-conduct time. His pro se petition raised essentially the following claims: (1) staff at FCI-Green-ville failed properly to investigate the extortion incident; (2) Johnson was not advised of his rights; (3) Johnson was not served with the incident report within 24 hours of the conclusion of the investigation; (4) the case manager and counselor failed to provide Johnson with a copy of their findings and disposition within 24 hours of the conclusion of the Unit Disciplinary Committee review; (5) the case manager and counselor denied Johnson an opportunity to call a relevant witness at the hearing; (6) Johnson was not given adequate notice of the charge in advance of the hearing; (7) the DHO denied Johnson access to his inmate witness and denied him an opportunity to review the statements against him prior to the hearing; (8) Johnson was denied a staff representative; (9) the DHO failed to afford Johnson adequate time to prepare for the hearing; (10) the administrative appeals 788process failed to protect Johnson’s rights and violated BOP policy; and (11) the weight of the evidence fails to support the DHO’s decision. Johnson sought to have the report expunged from his record, and his good-conduct time restored. The government argued, inter alia, that Johnson failed to exhaust administrative remedies on his due process claims, and, alternatively, that all of his claims are without merit. The Illinois District Court then transferred the matter to the United States District Court for the Middle District of Pennsylvania, the judicial district in which Johnson is housed. The Middle District found that Johnson did not exhaust or attempt to exhaust the administrative grievance process on his due process claims, ie., claims (1) through (10), and thus those claims must be denied. While Johnson did preserve a challenge to the weight of the evidence, the District Court held that because there is “some evidence” in the record to support the DHO’s decision, that claim must fail. Johnson timely appeals. We have appellate jurisdiction under 28 U.S.C. § 1291. Our review is plenary over a district court’s legal conclusions. Rios v. Wiley, 201 F.3d 257, 263 (3d Cir.2000). With regard to the question of exhaustion, “[fjederal prisoners are ordinarily required to exhaust their administrative remedies before petitioning for a writ of habeas corpus pursuant to § 2241.” Moscato v. Fed. Bureau. of Prisons, 98 F.3d 757, 760 (3d Cir.1996). Failure to satisfy the Bureau of Prison’s procedural rules for administrative review can result in a procedural default, which will bar § 2241 review of a defaulted claim unless the prisoner can show “cause and prejudice.” Id. at 760-61. Here, while Johnson challenged the weight of the evidence and the DHO’s rejection of his credibility, he did not argue on administrative review that he was denied due process in the ten different ways that he has asserted in his habeas petition. Because Johnson offers no showing of “cause” to overcome his failure to raise these claims in the administrative proceedings, the District Court properly declined to reach the merits. In any event, inasmuch as the Regional Director and the Office of General Counsel independently reviewed the record and were satisfied that Johnson was afforded due process, the record fully supports that determination. A prisoner facing the loss of good-conduct time as a result of an infraction is entitled to certain procedural protections in the disciplinary proceedings. Wolff v. McDonnell, 418 U.S. 539, 564-65, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). The minimum required protections are: “(1) advance written notice of the disciplinary charges; (2) an opportunity, when consistent with institutional safety and correctional goals, to call witnesses and present documentary evidence in his defense; and (3) a written statement by the factfinder of the evidence relied on and the reasons for the disciplinary action.” Superintendent v. Hill, 472 U.S. 445, 454, 105 S.Ct. 2768, 86 L.Ed.2d 356 (1985). Johnson’s suggestion that he was denied any due process protection to which he was entitled is utterly belied by the record, and indeed Johnson has offered no argument, and cited no record support, for his alleged due process claims on this appeal. Finally, as to the claim that Johnson exhausted — the weight of the evidence — federal habeas review requires only that the DHO’s decision be supported by “some evidence” of guilt. See Hill, 472 U.S. at 454, 105 S.Ct. 2768. “[T]he relevant question is whether there is any evidence in the record that could support the conclusion reached by the disciplinary board.” Id. at 455-56, 105 S.Ct. 2768. Here, the inmate testimony, the money *789orders reflecting payments to Johnson’s mother, and the paucity of Johnson’s evidence countering the charge provide “some evidence” to support the DHO’s determination. We will affirm the District Court’s judgment denying habeas relief.	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8473870/	Affirmed by unpublished PER CURIAM opinion. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Isiah James, Jr., appeals the district court’s order accepting the recommendation of the magistrate judge and denying relief on his 42 U.S.C. § 1983 (2006) complaint, and the court’s order denying his post-judgment motions to alter or amend the judgment under Fed.R.Civ.P. 59(e), and to amend the complaint. James also appeals the magistrate judge’s orders denying his motions to recuse and for sanctions. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court and the magistrate judge. James v. Jackson, No. 9:08-cv-00144-TLW (D.S.C. filed Mar. 26, 2008 & entered Mar. 27, 2008; Sept. 2, 2008; Nov. 5, 2008); 2009 WL 291162 (Feb. 4, 2009); (Feb. 27, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED.	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8473872/	Petition denied by unpublished PER CURIAM opinion. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: German Millón petitions for a writ of mandamus, alleging the district court has unduly delayed acting on his 28 U.S.C. § 2255 (West Supp.2009) motion. He seeks an order from this court directing the district court to act. Our review of the docket sheet reveals that the district court dismissed Millon’s motion in an order entered on October 7, 2009, 2009 WL 3258580. Accordingly, because the district court has recently decided Millon’s case, we deny the mandamus petition as moot. We grant leave to proceed in forma pauperis. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials be*803fore the court and argument would not aid the decisional process. PETITION DENIED.	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8473817/	OPINION PER CURIAM. In July 2009, Melvin R. Petersen filed this pro se mandamus petition requesting that the District Court act on his “18 U.S.C. § 3582(c)(2) letter motion.” Petersen first inquired by letter of the District Court what steps, if any, it was taking with respect to his sentence following the 2007 amendment to the Sentencing Guidelines regarding crack cocaine offenses. The court responded by letter on March 28, 2008 stating that his case was under review and that the court “is actively processing these cases, and you will be updated on your status in the very near future.” On January 15, 2009, Petersen filed a “motion to advance cause,” in which he requested that the District Court take action. When Petersen filed this mandamus petition, the District Court had not yet acted on Petersen’s request. However, on September 15, 2009, the District Court ordered the appointment of counsel and scheduled a hearing for resentencing pursuant to the amended sentencing guidelines on October 7, 2009. Because Petersen has now received the relief he sought — District Court action on his motion for resentencing — we will deny his mandamus petition as moot.	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8473819/	700OPINION McKEE, Circuit Judge. Diane Rosetsky appeals a grant of summary judgment in favor of her former employer, National Board of Medical Examiners of the United States of America, Inc. (“NBME”), on claims of age discrimination under the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 623(a), and the Pennsylvania Human Relations Act (“PHRA”), 43 Pa. Stat. Ann. § 955, as well as on claims of unlawful retaliation under the ADEA in violation of 29 U.S.C. § 623(d). For the reasons that follow, we will affirm in part, and vacate and remand in part. I. We have jurisdiction pursuant to 28 U.S.C. § 1331. We review the district court’s grant of summary judgment de novo and apply the same test as the district court. See MBIA Ins. Corp. v. Royal Indem. Co., 426 F.3d 204, 209 (3d Cir.2005). Summary judgment is appropriate where there are no genuine issues of material fact. Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In reviewing a grant of summary judgment, we view all facts in the light most favorable to Rosetsky, the non-moving party. See Bowers v. Nat’l Collegiate Athletic Ass’n, 475 F.3d 524, 535 (3d Cir.2007). As we write primarily for the parties who are familiar with the facts of this case, we need not recite the factual or procedural history in detail. II. When evaluating claims of age discrimination under the ADEA, we apply the McDonnell Douglas burden shifting analysis. McDonnell Douglas v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); see also Fasold v. Justice, 409 F.3d 178, 184 (3d Cir.2005). Under McDonnell Douglas, Rosetsky must first establish a pr ima facie case as to each of her discrimination claims. To establish a prima facie. case of age discrimination, Rosetsky must show that she: (1) was at least forty years old; (2) was qualified for her job; (3) was subject to an adverse employment action; and (4) was replaced by an individual sufficiently younger to give rise to an inference of age-based discrimination. Anderson v. Consol. Rail Corp., 297 F.3d 242, 249 (3d Cir.2002). If she succeeds in establishing a prima facie case of age discrimination, “the burden then must shift to the employer to articulate some legitimate, nondiscriminatory reason” for the adverse employment action. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817. If the employer does so, the burden shifts back to Rosetsky to prove by a preponderance of the evidence that the non-discriminatory reasons proffered by her former employer, NBME, were merely a pretext for discrimination. Id. at 804, 93 S.Ct. 1817; see also Jones v. Sch. Dist. of Philadelphia, 198 F.3d 403, 410 (3d Cir.1999) (citing Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981)). Rosetsky asserts that she was subject to an adverse employment action when her supervisor at NBME, Kathy Holtzman assigned her additional clerical duties allegedly not referenced in her job description, while promoting other, younger employees to more substantive projects. This argument is meritless. It is uncontested that Rosetsky’s job description included “assist[ing] with other duties as assigned,” as well as other tasks specifically designed to accommodate “support” needs of her manager, Holtzman, and others. See Appellant’s Br. at 7. Ro701setsky admitted that not all of the tasks Holtzman assigned her were clerical in nature. The work included the opportunity to perform work specifically mentioned in her job profile, e.g., creating databases and editing tutorial slides. Rosetsky also admitted that both younger and older NBME employees were often responsible for performing clerical duties. We are confident that nothing on this record would allow a reasonable juror to conclude that younger employees were treated more favorably. The younger employees that Rosetsky relies upon had different job titles and occupied different positions than Rosetsky. See App. at 420a. There is nothing to support Rosetsky’s claim that two younger employees “advanced quickly throughout the company! ]” in a manner that would suggest she was discriminated against. Rather, she makes the rather astonishing admission that she did not know if she had the knowledge necessary to fulfill the requirements of the higher position or not. See id. at 22. Given this record, neither Rosetsky’s dissatisfaction with work assignments, nor assignment of clerical duties such as “filfing] and keepfing] track of various documents,” Appellant Br. at 11, rise to the level of the sort of materially adverse ‘ “significant change in employment status’ ” required for a cause of action under the ADEA. Weston v. Pennsylvania, 251 F.3d 420, 431 (3d Cir.2001) (quoting Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998)). Accordingly, Rosetsky has not established a prima facie case of age discrimination against NBME. She has failed to point to any evidence to support a finding that she was subject to an adverse employment action by NBME. Absent some proof that she was assigned clerical responsibilities or other “demeaning” tasks not assigned to younger employees, her claim of job discrimination is nothing short of frivolous. III. We also analyze Rosetsky’s retaliation claims under the three-step framework of McDonnell Douglas. To establish a prima facie case of retaliation, Rosetsky must present sufficient evidence to establish that: (1) she was engaged in protected conduct; (2) an adverse action was taken; and (3) there is a causal link between the protected conduct and the adverse action. Woodson v. Scott Paper Co., 109 F.3d 913, 920 (3d Cir.1997) (citations omitted). Once a prima facie case is established, the burden shifts to NBME to present a non-retaliatory explanation for the challenged employment decision. Id. at 920 n. 2; see also McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817. It is undisputed that Rosetsky was terminated after she complained to Human Resources (“HR”) about her treatment. It is also undisputed that five days before receiving her notice of discharge, and six weeks after complaining to HR, Rosetsky sent numerous emails to her supervisor in which she refused to do the tasks assigned to her because she felt they were “beneath” her education level. She also presented an ultimatum in which she demanded a $10,000 raise and a new job title which did not exist within NBME. She even went so far as to refuse repeated requests to keep track of her project time. See App. at 319a. The situation became so bad that several of Rosetsky’s co-workers complained to NBME supervisors about her behavior. Id. at 297-99a. Such facts, even when viewed in the light most favorable to Rosetsky, demonstrate that NBME’s reasons for terminating Rosetsky were legitimate and nondiscriminatory. Rosetsky must proffer evidence sufficient for a jury to find that “an invidious 702discriminatory reason was more likely than not a motivating or determinative” factor in her discharge rather than her own insubordination, unprofessional demands, and unprofessional conduct. Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir.1994). Even though Rosetsky’s termination notice was sent soon after she complained to HR about her treatment, and even though such proximity can sometimes raise an issue of fact about retaliatory motive, that is not the case here. When this record is viewed in its most favorable light (from Rosetsky’s perspective), there is still nothing to suggest any retaliatory motives on the part of her employer, and Rosetsky’s argument to the contrary is even more frivolous than her claim of age discrimination. Rosetsky does not contest that she issued demands and ultimatums about what she required from NBME if she was to continue doing her job. Her insubordination extended to the seemingly routine task of submitting time records for projects she was given to complete. Her presence and behavior became so disruptive and insubordinate that NBME finally terminated her. No reasonable fact finder could conclude anything other than that her termination resulted from her own unprofessional conduct, and not from any discriminatory or retaliatory animus on her employer’s part. IV. Rosetsky also argues that the district court committed reversible error by refusing to grant her request for an extension of the discovery deadline. Given this record, we must disagree. We review the district court’s ruling for abuse of the district court’s broad discretion and ‘ “we will not upset a district court’s conduct of discovery procedures absent a demonstration that the court’s action made it impossible to obtain crucial evidence.’ ” Gallas v. Supreme Court of Pa., 211 F.3d 760, 778 (3d Cir.2000) (quoting Fine Antitrust Litig. v. Boise Cascade Corp., 685 F.2d 810, 818 (3d Cir.1982)). Further, “implicit in such a showing is proof that more diligent discovery was impossible.” Id. at 778 (quoting Fine Antitrust Litig., 685 F.2d at 818). Here, rather than attempting to work within the sixty-day discovery schedule set by the district court, Rosetsky’s counsel waited until the eve of the deadline to notice any depositions.1 When he finally did so, giving NBME’s counsel merely one week’s notice, he failed to check the schedules of either the desired deponent, or opposing counsel. Consequently, upon receipt of the deposition notices, NBME’s counsel informed Rosetsky’s counsel that she was unavailable on the requested date due to a previously scheduled deposition in another matter. Rosetsky’s counsel, however, declined to select another date within the deadline and instead filed an extension just two days before the deadline.2 Thus, Rosetsky’s counsel did not make a good faith effort to comply with the district court’s published discovery procedures and failed to offer any reasons why diligent discovery was not possible. V. Finally, the district court also granted NBME summary judgment on 703Rosetsky’s PHRA claim. Pursuant to the PHRA, 43 P.S. § 962(c), the Pennsylvania Human Rights Commission (“PHRC”) has exclusive jurisdiction over all cases involving a claim of discrimination for one year so that it may conduct an investigation and, if possible, resolve the matter. Burgh v. Borough Council of the Borough of Montrose, 251 F.3d 465, 471 (3d Cir.2001) (citing Clay v. Advanced Computer Applications, Inc., 522 Pa. 86, 559 A.2d 917, 920 (1989)). Prior to seeking judicial remedies, a plaintiff must exhaust all administrative remedies and comply with all procedural requirements under the PHRA. Clay, 559 A.2d at 919-20. Rosetsky argues that her PHRA claim should have been dismissed without prejudice for failing to exhaust administrative remedies so that she could properly exhaust them. November 29, 2006 is the earliest date on which Rosetsky’s discrimination claim can be considered filed with the PHRC. Eight months later, on August 2, 2007, Rosetsky filed this action alleging violations of both ADEA and PHRA in federal district court. Rosetsky thus failed to comply with 43 P.S. § 962(c) because she filed her action under the PHRA in district court before the PHRC’s mandatory one year investigation period had expired. Accordingly, the district court did not have subject matter jurisdiction over the PHRA claim. See, e.g., First Jersey Securities, Inc. v. Bergen, 605 F.2d 690, 700 (3d Cir.1979) (holding plaintiffs “failure to exhaust its administrative remedies rendered the district court without jurisdiction to entertain the suit”). For the foregoing reasons, we will vacate the Order and Opinion of the district court granting NBME’s motion for summary judgment as to Rosetsky’s PHRA claim and remand with instructions to dismiss Rosetsky’s PHRA claim for lack of subject matter jurisdiction.3 VI. For the foregoing reasons, we will affirm the district court’s grant of summary judgment in favor of NBME as to Rosetsky’s ADEA discrimination and retaliation claims, but vacate the district court’s Order granting summary judgment in favor of NBME as to Rosetsky’s PHRA claim. We will remand with instructions to dismiss that claim for lack of subject matter jurisdiction. . Here, the district judge provided notice to counsel via the district court’s website that he grants discovery extensions sparingly and only for “weighty cause.” See Hon. Stewart Dalzell, Policies and Procedures: Part I, page 2, available at http://www.paed.uscourts.gov/ documents/procedures/dalpoll.pdf . In her brief to this court, Rosetsky did not contest any of the facts surrounding her counsel's failure to comply with the district court's published discovery procedures or demonstrate actual or substantial prejudice by the district court. . The district court may allow Rosetsky to amend her complaint as the mandatory one year period under 43 P.S. § 962(c) has now expired. See, e.g., Logan v. In-Ter-Space Services, Inc., No. 07 Civ. 0761, 2007 WL 2343868, at 2 (E.D.Pa. Aug. 15, 2007); McBride v. Bell of Pennsylvania, No. 89 Civ. 0243, 1989 WL 71545, at 3 (E.D.Pa. June 27, 1989). However, the district court may choose not to exercise jurisdiction over Rosetsky's state law claim as none of her federal claims survived summary judgment.	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8473823/	OPINION OF THE COURT FUENTES, Circuit Judge: Appellants Carlos and Colleen Rodriquez appeal the final order of the District Court, which granted the City of Philadelphia’s motion for summary judgment. At the time when the events underlying this lawsuit took place, Rodriquez1 was a police officer employed by the City of Philadelphia (the “City”). On September 7, 2005, Rodriquez was working the evening shift at the jail in the Ninth Police District when he was attacked by a prisoner. He filed this lawsuit, alleging that the City violated his substantive due process rights by exposing him to dangerous conditions of employment. The District Court granted the City’s motion for summary judgment, finding that Appellants failed to prove that the City violated Rodriquez’s constitutional rights. We will affirm. I. Because we write primarily for the parties, we only review the facts and procedural history necessary to resolve the issues raised on appeal. On the evening of September 7, 2005, Rodriquez was instructed to report to the Ninth Police District in order to cover the Closed Circuit Television Viewing (“CCTV”) section of the jail, where inmates wait to make appearances in court via video. Pursuant to a policy announced by the Commanding Officer of the District the week prior to the attack on Rodriquez, four officers were required to work in the CCTV section at any given time. When Rodriquez arrived for his shift, however, he believed that he was the only officer assigned to the section.2 Rodriquez contacted a supervisor, Officer Lee, and expressed concerns over the inadequate coverage in the CCTV section. Lee explained that there was insufficient manpower to put additional officers in the CCTV area. Rodriquez continued to protest because he did not feel safe, and Lee informed Rodriquez that he would “see what [he] can do.” (App.229a.) During Rodriquez’s shift, two prisoners — Brandon Cottle and Shawn Pendleton — were detained in the CCTV section’s Cell 8, a “suicide cell” covered in clear plexiglass that allowed officers to observe the actions of the detainees inside the cell. As Rodriquez tried to do paperwork, Cottle made repeated requests for water. Rodriquez initially ignored Cottle’s requests, but ultimately agreed to provide Cottle with water. On account of the cell’s design, Rodriquez was unable to slip water through the food intake slot, and had to open the cell door to give the water to Cottle. Before he opened the door, Rodriquez ordered Cottle’s cellmate, Pendleton, to sit down; 712Pendleton refused to comply at first, but eventually sat. After Rodriquez opened the door and gave Cottle the water, Pendleton “came out of nowhere” and stood in the cell doorway. (App.233a.) Rodriquez ordered Pendleton to go back into the cell, Pendleton refused, and a struggle between the two men ensued. During the confrontation, Pendleton picked Rodriquez up and threw him into the bars of the cell, causing Rodriquez momentarily to lose consciousness. Eventually, Officer Holden arrived and, in an apparent effort to contain the situation, shut the sliding door, locking Rodriquez in the cell with Cottle and Pendleton. Finally, Pendleton released Rodriquez, and Rodriquez was able to exit the cell. Rodriquez sustained severe injuries as a result of the attack. Rodriquez commenced this lawsuit in August 2007, asserting that the City violated his substantive due process rights by creating the dangerous employment conditions to which he was exposed. The City moved for summary judgment. The District Court granted the motion, concluding that “a government employer owes no constitutional obligation to provide its employees with minimum levels of safety and security in the workplace,” (App.4a) (citing, inter alia, Collins v. City of Harker Heights, 503 U.S. 115, 127, 112 S.Ct. 1061, 117 L.Ed.2d 261 (1992)), and that Rodriquez had failed to prove that a municipal policy or custom had caused his injuries. Rodriquez took this timely appeal. II. The District Court had jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343 and we have jurisdiction under 28 U.S.C. § 1291. We review a grant of summary judgment de novo, applying the same standard as the district court. Antonelli v. New Jersey, 419 F.3d 267, 272 (3d Cir.2005). Summary judgment is appropriate if, viewing the record in the light most favorable to the non-movant, there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). We agree with the District Court’s conclusion that although “[t]he facts of the case are indeed unfortunate,” they do not give rise to a substantive due process claim against the City. (App.3a.) We first observe that the Supreme Court has long held that “[njeither the text nor the history of the Due Process Clause supports ... [a] claim that the governmental employer’s duty to provide its employees with a safe working environment is a substantive component of the Due Process Clause.” Collins, 503 U.S. at 126, 112 S.Ct. 1061. This holding stems from the well-settled principle that “the Due Process Clause does not impose an affirmative obligation on the state to protect its citizens.” Kaucher v. County of Bucks, 455 F.3d 418, 431 (3d Cir.2006) (citing DeShaney v. Winnebago County Dept. of Social Services, 489 U.S. 189, 195-96, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989)). As we have recognized, however, under the exception to DeShaney known as the state-created danger doctrine, “when state authority is affirmatively employed in a manner that injures a citizen or renders him more vulnerable to injury from another source than he or she would have been in the absence of state intervention,” such affirmative conduct may give rise to a claim under the Due Process Clause. Bright v. Westmoreland County, 443 F.3d 276, 281 (3d Cir.2006) (internal quotations and citations omitted, emphasis added); see also Sanford v. Stiles, 456 F.3d 298, 304 (3d Cir.2006) (under the state-created danger doctrine, “liability may attach where the state acts to create or enhance a danger that deprives the plaintiff of his or her Fourteenth Amendment right to substantive due process”) (emphasis in origi713nal). To prevail on a state-created danger claim, a plaintiff must establish the following four elements: (1) the harm ultimately caused was foreseeable and fairly direct; (2) a state actor acted with a degree of culpability that shocks the conscience; (3) a relationship between the state and the plaintiff existed such that the plaintiff was a foreseeable victim of the defendant’s acts ...; and (4) a state actor affirmatively used his or her authority in a way that created a danger to the citizen or that rendered the citizen more vulnerable to danger than had the state not acted at all. Bright, 443 F.3d at 281 (quotations and footnotes omitted). As in Bright, “we find it unnecessary to consider anything other than the fourth essential element of a meritorious state-created danger claim,” id., because the record herein fails to suggest that the City’s affirmative use of state authority caused the danger Rodriquez encountered. At base, Rodriquez’s claim turns on his contention that the City could have done more to prevent dangerous circumstances from arising in the CCTV area, or that the City was negligent in enforcing certain security measures that would have enhanced officer safety.3 Such contentions are insufficient as a matter of law to establish that the City’s affirmative exercise of authority created the danger to which Rodriquez was exposed. See Kaucher, 455 F.3d at 433. We have previously considered similar attempts by litigants to “recharacterize [a state actor’s] failures as affirmative actions,” and have consistently held that a plaintiff must show more than the government’s “failure to prevent” an injury in order to prevail on a state-created danger claim. Sanford, 456 F.3d at 312 (quotations omitted); see Kaucher, 455 F.3d at 433 (employee’s contention that “defendants failed to act affirmatively to improve conditions at the jail,” although “frame[d] ... in terms of actions affirmatively creating dangerous conditions and affirmatively misrepresenting dangers,” failed to establish the affirmative act element). Rodriquez’s claim boils down to a charge that “[t]he city breached its duty of care to ... [him] by failing to provide a safe work environment,” and, as a matter of law, such a charge does not suffice to establish a due process violation.4 Collins, 503 U.S. at 128, 112 S.Ct. 1061. We conclude, in sum, that the District Court correctly determined that Rodriquez failed to prove that the City violated his constitutional rights. III. For the foregoing reasons, we will affirm the District Court’s grant of summary judgment in favor of the City. . For simplicity, we refer to Mr. Rodriquez as "Rodriquez" or "Appellant.” Mr. Rodriquez’s wife, Colleen Rodriquez, is a party to this action, but she asserts only a loss of consortium claim which is derivative of her husband’s claim. See O'Connor v. City of Newark, 440 F.3d 125, 130 n. 8 (3d Cir.2006). . Rodriquez’s belief that he was the only officer working in the CCTV area turns out not to have been correct. Officer Holden was also on duty in the section during Rodriquez’s shift, although Rodriquez was not aware of his presence when he spoke to Officer Lee. Another officer, Officer Sabalski, was supposed to be in the CCTV section as well, but had either not shown up for work or had stepped out of the building. . In support of his claim, Rodriquez points to a report prepared by his expert witness, Roosevelt L. Poplar, which identifies multiple failings Mr. Poplar attributes to the City: the City permitted mentally unstable prisoners to be housed in a poorly designed suicide cell, it failed to correct inadequate staffing in the CCTV section, it allowed officers to store tasers on a different floor from the CCTV section, and it tolerated the sub-optimal placement of a video monitor. (App.209a.) . We note that Officer Holden appears to have taken an affirmative act when he locked Rodriquez in the cell with Pendleton. However, Holden is not a defendant to this action, and there is no suggestion whatsoever from the record before us that in closing the door to the cell, he was acting pursuant to a municipal policy or custom. See Monell v. Dep't of Soc. Servs., 436 U.S. 658, 691, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978).	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8473825/	OPINION McKEE, Circuit Judge. Christine and James Craig appeal the district court’s order granting summary judgment in favor of the defendants on the tort claim they filed to recover for injuries Christine suffered after slipping and falling at the defendants’ retail shopping mall. We will affirm. As we write primarily for the parties who are familiar with this case, we need not recite the procedural or factual background. Moreover, we have reviewed the thoughtful Memorandum filed by the Hon. Eduardo Robreno on May 23, 2008, 555 F.Supp.2d 547, explaining why there is no genuine issue of material fact as to defendants’ liability and why the defendants are therefore entitled to judgment as a matter of law. We can add little to Judge Robreno’s discussion of this case and we will therefore affirm the order he entered on May 23, 2008, granting summary judgment in favor of Control Building Services, and Franklin Mills Associates, L.P., and against Christine and James Craig, substantially for the reasons set forth therein.	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8473827/	OPINION PER CURIAM. Hendra Ugahary Ngo, an Indonesian native and citizen, petitions for review of a 716final order of the Board of Immigration Appeals (“the Board”), affirming the Immigration Judge’s (“IJ”) denial of his applications for asylum, withholding of removal and relief under the Convention Against Torture (“CAT”). For the following reasons, we will deny the petition. The Immigration and Naturalization Service placed Ngo in removal proceedings by the issuance of a Notice to Appear (“NTA”) on May 13, 2003. The NTA charged Ngo with being removable pursuant to INA § 237(a)(1)(B), for remaining in the United States without permission of the government. Ngo admitted the factual allegations in the NTA and sought asylum, withholding of removal, and protection from removal under the CAT. Ngo’s written application cited “mistreatment and pressure from people in the government” over the 50 years that he lived in Indonesia as the basis for relief. (A.R. at 432.) In particular, Ngo stated that he experienced discrimination in language, schooling, culture, and government benefits. He also experienced assaults in 1974 and 1978, and property damage in 1983. Ngo testified that he and his family were frequently threatened and harassed by Muslims both because of their Chinese ethnicity and because they were practicing Christians. In 1992 and 1997, Ngo witnessed discrimination and assaults against other ethnic Chinese. He also cited the May 1998 riots in which natives violently assaulted the persons and property of ethnic Chinese. During this period, although his family found safe refuge, Ngo testified that his home was damaged, his cars burned, and that he sustained injuries to his hand when it was hit with a ten-pound brick. Ngo testified that during church bombings in November 1998, his eyeglasses were broken. Worse, a man with whom he lived was murdered. In 1999, churches were bombed, causing car glass to shatter and cutting Ngo. According to the IJ’s summary of Ngo’s testimony, Ngo’s church remained unharmed, as did his family. At Ngo’s first hearing, the IJ determined that Ngo had missed the one-year filing deadline for his asylum application. With regard to his withholding of removal and CAT claims, the IJ found Ngo incredible based on an omission in his testimony as compared to his written application. The IJ further found that Ngo failed to provide independent corroborating evidence in support of his testimony. On February 25, 2005, the Board affirmed the IJ’s finding with regard to the timeliness of Ngo’s asylum application. With regard to Ngo’s remaining claims for relief, the Board found that the sole omission relating to his son’s current fear of harm was not sufficient to support an adverse credibility finding. The Board remanded the case to the IJ to give Ngo the opportunity to present additional evidence. On remand, the IJ again made an adverse credibility finding. The Board dismissed Ngo’s appeal on March 4, 2008, without addressing the IJ’s adverse credibility determination. The Board concluded that the alleged events did not rise to the level of persecution on account of a protected ground or demonstrate that Ngo faced a probability of future persecution if he returned to Indonesia. The Board also determined that Ngo failed to show that he was more likely than not to face torture on his return to Indonesia. Ngo timely filed a petition for review in this Court. We have jurisdiction pursuant to 8 U.S.C. § 1252(a). We uphold the Board’s determinations if they are supported by reasonable, substantial and probative evidence on the record considered as a whole. Yusupov v. Att’y Gen., 518 F.3d 185, 197 (3d Cir.2008). Under the substantial evidence standard, “the BIA’s finding must be upheld unless the evidence not only 717supports a contrary conclusion, but compels it.” Abdille v. Ashcroft, 242 F.3d 477, 483-84 (3d Cir.2001) (citing INS v. Elias-Zacarias, 502 U.S. 478, 481 n. 1, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992)). To be eligible for withholding of removal, petitioners must demonstrate that “there is a greater-than-fifty-percent chance of persecution” in Indonesia based on one of the protected grounds. Senathirajah v. INS, 157 F.3d 210, 215 (3d Cir.1998); see also 8 U.S.C. § 1231(b)(3)(C). For relief under the CAT, Ngo must demonstrate that it is more likely than not that he would be tortured if removed to Indonesia. See 8 C.F.R. § 208.16(c)(2). The acts of torture must be inflicted “by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.” 8 C.F.R. § 1208.18(a)(1).1 Ngo argues that the IJ overlooked critical evidence by concluding that he failed to establish past persecution and fear of future persecution. Specifically, Ngo claims that he has demonstrated eligibility for withholding of removal based on aggregated incidents of past mistreatment in Indonesia. Ngo testified that during the riots of 1998, an organization of extremists comprised primarily of native Muslims burned down the Christian church he attended. Ngo also witnessed native Muslims burning down the homes of Chinese Christians near his home in Jakarta. Ngo testified to a code that was used to intimidate and threaten Christians, in which red and yellow colorings were painted on the homes of Chinese Christians. Red coloring on the home signified that Christians lived in the home and should be killed. A Christian home with yellow coloring indicated a female Christian resided in the home and should be raped. Ngo stated that he was affected by these actions because he had a female daughter and yellow coloring was placed on his house. Ngo further testified that, when he lived in Indonesia he was often targeted while driving his car. During one incident, unidentified assailants in a truck threw stones at his car. In another incident, assailants “hit” Ngo while he was stopped at a traffic light and his eyeglasses were broken. (A.R. at 72.) In addition to the physical incidents, Ngo testified that the government discriminated against him by refusing to provide him with documents because of his Christian religion. Ngo’s claims of past persecution must fail because he has not shown that the incidents he describes were committed by the government or by forces the government is unable or unwilling to control.2 See Valdiviezo-Galdamez v. Att’y Gen., 502 F.3d 285, 288 (3d Cir.2007) (citation and internal quotation marks omitted).3 Further, he has not demonstrated that the incidents he experienced were motivated by an anti-Christian or anti-Chinese animus. See 8 U.S.C. § 1101(a)(42)(A) (requiring that persecution be “on account of’ a petitioner’s religion or ethnicity); see *718also Lie v. Ashcroft, 396 F.3d 530, 535 (3d Cir.2005). Finally, although the incidents Ngo describes were indeed unfortunate, they are not the type of harm recognized as constituting persecution under our precedent. See Fatin v. INS, 12 F.3d 1233, 1240 (3d Cir.1993) (defining persecution as “threats to life, confinement, torture, and economic restrictions so severe that they constitute a threat to life or freedom.”). The Board’s rejection of Ngo’s claim to withholding of removal based on fear of future persecution is supported by substantial evidence because he had not presented evidence of his own persecution, or a pattern or practice of persecution of ethnic Chinese or Christians in Indonesia. See Wong v. Att’y Gen., 539 F.3d 225, 232 (3d Cir.2008). In order to show a well-founded fear of future persecution the applicant must show a well founded subjective fear, “supported by objective evidence that persecution is a reasonable possibility.” Chang v. INS, 119 F.3d 1055, 1066 (3d Cir.1997). The objective prong is satisfied either by showing that the applicant would be individually singled out for persecution, or that “ ‘there is a pattern or practice in his or her country of nationality ... of persecution of a group of persons similarly situated to the applicant on account of race, religion, nationality, membership in a particular social group, or political opinion.’ ” Sukwanputra v. Gonzales, 434 F.3d 627, 637 (3d Cir.2006) (quoting 8 C.F.R. § 208.13(b)(2)(iii)(A)). Ngo provides no evidence to refute the finding that the record reflects steps by the Indonesian government to control and diffuse violence against Christians like Ngo.4 (A.R. at 51-53.). Thus, Ngo has failed to establish either past or a clear probability of future persecution based on one of the protected grounds. See INS v. Stevic, 467 U.S. 407, 430, 104 S.Ct. 2489, 81 L.Ed.2d 321 (1984); see also 8 C.F.R. § 1208.16(b). The Board’s rejection of Ngo’s CAT claim also finds substantial support. Ngo has not presented any evidence that upon his return to Indonesia he would be tortured by the government or that the government would acquiesce in any torture of him by third parties. Thus, Ngo is not eligible for protection under the CAT. Pierre v. Att’y Gen., 528 F.3d 180, 190 (3d Cir.2008) (en banc). For the foregoing reasons, we will deny Ngo’s petition. . Ngo does not contest the BIA's timeliness determination with regard to his asylum application. . The only instance in which Ngo implicates the Government's involvement is with regard to the discrimination he faced when it refused to issue him certain requested documents. Such acts do not constitute persecution or torture. .While the Court in Valdiviezo-Galdamez was referring to persecution in the context of an asylum claim, the same substantive criteria apply to determining persecution for purposes of withholding of removal. Wakkary v. Holder, 558 F.3d 1049, 1053 (9th Cir.2009). . Ngo relies on Sael v. Ashcroft, 386 F.3d 922 (9th Cir.2004), for the proposition that “the more serious and widespread the threat to the group in general, the less individualized the threat of persecution needs to be.” Sael, 386 F.3d at 925 (internal quotation marks and citations omitted). This reasoning is part of the Ninth Circuit's "disfavored group” rationale which we have declined to follow. See Lie v. Ashcroft, 396 F.3d 530, 538 n. 4 (3d Cir.2005).	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8473829/	OPINION PER CURIAM. Regonaldo Demelio is an inmate currently serving a federal sentence at FCIAllenwood. On September 14, 2009, Demelio filed this pro se mandamus petition, requesting the following relief: that we (1) “oversee” his collateral attack proceedings in the United States District Court for the Western District of Pennsylvania, brought pursuant to 28 U.S.C. § 2255; (2) appoint him counsel in those proceedings; and (3) order the District Court to rule on his § 2255 motion. We will deny the petition. I. Mandamus is a drastic remedy available only in the most extraordinary of circumstances. See In re Diet Drugs Prods. Liab. Litig., 418 F.3d 372, 378 (3d Cir.2005). It is not a substitute for an appeal. See In re Chambers Dev. Co., 148 F.3d 214, 226 (3d Cir.1998). To demonstrate that mandamus is appropriate, a petitioner must establish that he has a “clear and indisputable” right to issuance of the writ. Madden v. Myers, 102 F.3d 74, 79 (3d Cir.1996). II. As a general rule, the manner in which a court disposes of cases on its docket is within its discretion. See In re Fine Paper Antitrust Litig., 685 F.2d 810, 817 (3d Cir.1982). Indeed, given the discretionary nature of docket management, there can be no “clear and indisputable” right to have the district court handle a case on its docket in a certain manner. See Allied Chemical Corp. v. Daiflon, Inc., 449 U.S. 33, 36, 101 S.Ct. 188, 66 L.Ed.2d 193 (1980). Nonetheless, mandamus may be warranted where a district court’s delay is *720tantamount to a failure to exercise jurisdiction. See Madden, 102 F.3d at 79. This case, however, does not present such a situation. Demelio filed his § 2255 motion to vacate his sentence and conviction on August 12, 2008. After the District Court granted its motion for a time extension, the Government filed a response on January 20, 2009, 2009 WL 145949. Demelio filed his reply on February 12, 2009. Only eight months have passed since then, during which time Demelio has filed several motions with the District Court. Given these facts, we do not find any delay by the District Court in adjudicating Demelio’s § 2255 motion to constitute a failure to exercise its jurisdiction. We are confident that the District Court will address the motion appropriately in due course. III. Like docket management, the decision to appoint counsel in proceedings brought under § 2255 is also a matter of discretion and, as result, there is no “clear and indisputable” right to that relief. See Pennsylvania v. Finley, 481 U.S. 551, 555, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987); see also 18 U.S.C. § 3006A(a)(2)(B) ([whenever ... the court determines that the interests of justice so require, representation may be provided in a § 2255 proceeding) (emphasis added). As we speak, Demelio’s second motion to appoint counsel is pending before the District Court1, and the District Court alone will assess the merits of that motion at this stage. Therefore, we will not direct the District Court to appoint Demelio counsel in his § 2255 proceedings. Nor will we accept Demelio’s invitation to “oversee” the proceedings before the District Court; the occasion for our review of the proceedings would be when an appeal is taken. Accordingly, we will deny Demelio’s mandamus petition. . The District Court denied Demelio’s first motion to appoint counsel as premature because the Government had not yet filed its response to his § 2255 motion.	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8473830/	OPINION OF THE COURT FUENTES, Circuit Judge: Appellant Sherri Koehnke appeals from the final order of the District Court, which granted Appellees’ motion for summary judgment. Ms. Koehnke filed this lawsuit against the City of McKeesport (the “City”) and two of its police officers, alleging that the police botched their investigation into her daughter’s disappearance and thereby violated Ms. Koehnke’s constitutional rights. The District Court granted the defendants’ motion for summary judgment, concluding that Ms. Koehnke’s claims were time-barred. We will affirm. I. We write primarily for the parties, who are familiar with the background of this case, and so we review only those facts necessary to our analysis. Ms. Koehnke is the mother of Tanya Kach, who, in early 1996, resided with Ms. Koehnke’s ex-husband, Jerry Kach, Jr., in McKeesport, 722Pennsylvania. On February 10, 1996, then-fourteen-year-old Tanya ran away from home. Unbeknownst to her parents, Tanya had developed an intimate relationship with Thomas Hose, a thirty-seven-year-old security guard at her school, and on the day she left Mr. Kach’s residence, Tanya moved in with Mr. Hose and his parents without informing anyone of her whereabouts. After Ms. Koehnke learned that her daughter had gone missing, she noticed Mr. Hose’s telephone number on her telephone bill for the date when Tanya had last visited her home. Ms. Koehnke called Mr. Hose to ask him if he knew anything about Tanya’s disappearance, but Mr. Hose told her that he did not know Tanya and knew nothing about her whereabouts. After Ms. Koehnke spoke with Mr. Hose, she and Mr. Koehnke visited the McKeesport Police Department, where she spoke with Officer Elias. Ms. Koehnke informed Officer Elias that Tanya was friends with Mr. Hose and that Tanya had called him from Ms. Koehnke’s house before her disappearance. Ms. Koehnke also told Officer Elias that she had called Mr. Hose to ask if he knew anything about her daughter’s whereabouts, and that he denied knowing Tanya at all. Police investigators paid a visit to Mr. Hose’s residence; the officers spoke with Mr. Hose but did not enter the premises because Mr. Hose told them that his parents were sleeping inside. In 1998 or 1999, Ms. Koehnke again informed the McKeesport Police Department that she suspected that Mr. Hose was involved in Tanya’s disappearance. The officer she spoke with assured her that the Department had investigated Mr. Hose and had determined that he “ha[d] nothing to do with” Tanya’s disappearance. (App.92.) On March 21, 2006, a decade after she ran away from home, Tanya disclosed her identity to Joe Sparico, the owner of a local convenience store, and informed him of the fact that she had been living in Mr. Hose’s home for the last ten years. Mr. Sparico contacted the authorities, and law enforcement officers removed Tanya from Mr. Hose’s home. In the days following these events, Tanya’s reappearance, and the fact that she had spent a decade living with Mr. Hose, were covered extensively by the local media, and reporters had “camped out” in front of Ms. Koehnke’s house. (App.104.) Ms. Koehnke spoke with Tanya on March 23, 2006, and was reunited with her in person the next day. Ms. Koehnke filed this lawsuit on June 2, 2008, alleging that the City had a policy or custom of failing to train police officers in the handling of missing children cases, as well as a policy or custom of inadequately investigating citizen complaints. She asserts that the defendants violated her due process and equal protection rights. The defendants moved for summary judgment.1 The District Court granted the motion, concluding that the statute of limitations on Ms. Koehnke’s claims expired more than two months before she filed this lawsuit. Koehnke filed this timely appeal. II. The District Court had jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343 and we have jurisdiction under 28 U.S.C. § 1291. Koehnke raises two issues on appeal, one procedural and one substantive. 723She first asserts that the District Court abused its discretion by granting the defendants’ motion for summary judgment before the parties conducted discovery. In addition, she argues that summary judgment was improvidently entered, contending that a factual dispute exists as to the timeliness of her claims. We are not persuaded by either of these arguments, which we address in turn below. “[W]e review a claim that the district court has prematurely granted summary judgment for abuse of discretion.” Bradley v. United States, 299 F.3d 197, 206 (3d Cir.2002) (citation omitted). The Federal Rules of Civil Procedure expressly permit a defendant to move for summary judgment “at any time,” Fed.R.Civ.P. 56(b), whether or not the parties have conducted discovery. If the non-moving party believes that its adversary’s summary judgment motion is premature, that party is not without recourse. A party that “cannot present facts essential to justify its opposition” may—and, indeed, must—“show[] by affidavit,” Fed.R.Civ.P. 56(f) (emphasis added), how evidence of such facts “would preclude summary judgment.” Bradley, 299 F.3d at 206 (citation omitted). We have been clear that “in all but the most exceptional cases, failure to comply with Rule 56(f) is fatal to a claim of insufficient discovery on appeal.” Id. Koehnke’s failure to file a Rule 56(f) affidavit is “fatal” to her contention that the District Court’s entry of summary judgment was premature, as we find no exceptional circumstances to justify her unexplained noncompliance with Rule 56(f).2 Id. Indeed, while Koehnke argues that discovery would have enabled her to prove that it was not until long after Tanya reappeared that Koehnke became aware of the police’s failure to search Hose’s residence, we agree with the City that Koehnke did not need to conduct discovery in order to adduce evidence of what she knew and when she knew it. We find no abuse of discretion in the timing of the District Court’s entry of summary judgment. ? We further conclude that the District Court correctly determined that Ms. Koehnke’s claims are time-barred.3 Claims brought pursuant to 42 U.S.C. § 1983 are subject to the statute of limitations “which the State provides for personal-injury torts,” Wallace v. Kato, 549 U.S. 384, 387, 127 S.Ct. 1091, 166 L.Ed.2d 973 (2007), which in Pennsylvania is two years. See 42 Pa. Con. Stat. Ann. § 5524. Ordinarily, a section 1983 claim accrues at the time when the injury is sustained—that is, “when the plaintiff has a complete and present cause of action.” Wallace, 549 U.S. at 388, 127 S.Ct. 1091 (internal quotations and citations omitted). However, under Pennsylvania’s discovery rule, the accrual of the statute of limitations may be tolled “for situations in which a party, through no fault of ... her own, does not discover her injury until after the statute of limitations normally would have run.” Debiec v. Cabot Corp., *724352 F.3d 117, 129 (3d Cir.2003). As we have explained: For the statute of limitations to run, a plaintiff need not know the exact nature of his injury, as long as it objectively appears that the plaintiff is reasonably charged with the knowledge that he has an injury caused by another.... Moreover, the plaintiff attempting to apply the discovery rule bears the burden of demonstrating that he exercised reasonable diligence in determining the existence and cause of his injury. To demonstrate reasonable diligence, a plaintiff must establish that he pursued the cause of his injury with those qualities of attention, knowledge, intelligence and judgment which society requires of its members for the protection of their own interests and the interests of others. Mest v. Cabot Corp., 449 F.3d 502, 510-11 (3d Cir.2006) (internal quotations and citations omitted). We agree with the District Court that Koehnke’s claims are time-barred. The record shows that as of March 24, 2006 at the latest, Koehnke knew (or had every reason to know) (1) that she had informed the Police Department of the basis of her suspicions concerning Hose, (2) that the Department had assured her that it had investigated Hose and determined that he had nothing to do with Tanya’s disappearance, and (3) that the Department’s determination was erroneous. To the extent that Koehnke sustained a constitutional injury as a result of the allegedly inadequate investigation, she had, by March 24, 2006, “sufficient critical facts to put [her] on notice that a wrong has been committed and that [she] need[ed] investigate to determine whether [she was] entitled to redress.” Debiec, 352 F.3d at 129 (citation omitted). Koehnke, who “bears the burden of demonstrating that [s]he exercised reasonable diligence in determining the existence and cause of [her] injury,” Mest, 449 F.3d at 511, identified no evidence from which a jury might conclude that she exercised such diligence, as the District Court determined. In sum, we agree with the District Court that the statute of limitations on Koehnke’s claims expired on March 24, 2008, more than two months before Koehnke filed her complaint. We will thus affirm the District Court’s summary judgment order. III. For the foregoing reasons, we will affirm the District Court’s grant of summary judgment. . Defendants styled their motion as one seeking dismissal or summary judgment. Because Defendants submitted documentary evidence in support of their motion, and because Ms. Koehnke submitted evidence in opposition thereto, the District Court properly treated the motion as a motion for summary judgment. . Although the brief Koehnke submitted to the District Court noted in passing that the parties had not conducted discovery, we have made clear that an "attorney’s unverified memorandum opposing the motion for summary judgment” cannot substitute for a Rule 56(f) affidavit. Radich v. Goode, 886 F.2d 1391, 1394 (3d Cir.1989). . We review a district court’s order granting summary judgment de novo. See Antonelli v. New Jersey, 419 F.3d 267, 272 (3d Cir.2005). Summary judgment is appropriate if, viewing the record in the light most favorable to the non-movant, there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c).	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8473832/	OPINION OF THE COURT FUENTES, Circuit Judge: James Werner appeals the District Court’s dismissal pursuant to Fed. R. Civ. P. 12(b)(6) of his claim for deprivation of a liberty interest under 42 U.S.C. § 1983 and his pendent state law cause of action for invasion of privacy. For the following reasons, we will affirm the District Court.1 I. Because we write primarily for the parties, we only discuss the facts and proceedings to the extent necessary for resolution of this case. This case presents a series of facts that, while deeply troubling, do not provide a basis for Werner’s Section 1983 claim. On May 12, 2006, Plaintiffs son, James Werner Jr., either committed suicide or died as the result of an accident in the family home.2 Defendant Zachary Lysek, the County Coroner, and his assistant were called to the scene. Photos were taken of the body. These photos ended up in the possession of the deputy coroner’s son, who showed them to fellow students at his high school and posted them on his personal website, with the caption “There is no better way to kill yourself.” After this incident, Lysek called Werner and apologized for the publication of the photos. Werner’s attorney subsequently wrote to the county district attorney requesting an investigation. In a letter in response, the district attorney stated that the actions did not easily fit within a criminal statute. 726Werner then filed his Complaint, alleging violations of his liberty interest in his reputation and good name pursuant to 42 U.S.C. § 1983 and state law claims for invasion of privacy. The District Court dismissed his Amended Complaint on December 21, 2007, 2007 WL 4553702, but granted leave to further amend his pleadings. His Second Amended Complaint was dismissed by the court’s July 8, 2008, 2008 WL 2700287, Order, which is the subject of this appeal.3 II. To bring a claim under 42 U.S.C. § 1983, a plaintiff must show that he was deprived of a federal constitutional or statutory right by a person acting under state law. Elmore v. Cleary, 399 F.3d 279, 281 (3d Cir.2005). Werner’s alleged deprivation of his liberty interest in his reputation relies upon the “stigma-plus” test. Under this test, “to make out a due process claim for deprivation of a liberty interest in reputation, a plaintiff must show a stigma to his reputation plus deprivation of some additional right or interest.” Hill v. Borough of Kutztown, 455 F.3d 225, 236 (3d Cir.2006). Werner raises one issue on appeal, claiming that the District Court erred in holding that he failed to satisfy the “stigma-plus” test. The District Court held that — assuming arguendo that Lysek was grossly negligent in not securing the photos and that this behavior constituted state action — Werner’s pleading still failed to satisfy either prong of the “stigma-plus” test. The “stigma” prong requires that a plaintiff allege that the stigmatizing statement be 1) made public and 2) false. Id. The District Court, deeming the death scene photographs to be the relevant statement, found that Plaintiff failed to allege that these photographs were false. A review of the Second Amended Complaint confirms this conclusion, as Werner declared that the photographs “depict or tend to depict a false situation to third parties who saw the photographs on the internet,” “were misleading” and “fueled the false impression that the Plaintiffs son committed suicide.” (Second Am. Compl. ¶¶ 17, 19.) Nowhere, however, does he allege the photographs were false or elaborate on how they were misleading. According to Werner, the central thrust of his Complaint was that his son did not commit suicide and the website that depicted the photos claimed the exact opposite. This claim is rendered confusing by Werner’s briefs statement of facts, which begins by stating that his son did commit suicide. Regardless of this inconsistency, a close reading of the Second Amended Complaint does not support Werner’s contention that it alleged the website falsely stated that his son had committed suicide. This argument therefore does not alter our review of the District Court’s analysis. Having failed to allege the falsity of the statement at issue, Werner failed to state a claim under the “stigma-plus” test and his Second Amended Complaint was properly dismissed on this basis. The District Court also held that Plaintiff failed to satisfy the “stigma-plus” test’s second prong — the deprivation of an additional right or interest. Werner failed to address this conclusion in his appeal. He does discuss in his brief the nature of privacy and parental rights, but his Second Amended Complaint does not present privacy as the “additional right or interest” necessary to satisfy the “stigma-plus” test. To the extent privacy is discussed, he defines the privacy right at issue as his and 727his family’s right “to enjoy a certain status and reputation in the community.” (Second Am. Compl. ¶ 50.) This is indistinguishable from the stigma or reputation harm component of his claim, and therefore not “additional.” Ultimately, having upheld the court’s determination that Werner did not satisfy the test’s first prong, we need not reach this issue. For the foregoing reasons, we will affirm the District Court. . The District Court had jurisdiction under 28 U.S.C. § 1331. We have jurisdiction pursuant to 28 U.S.C. § 1291. . The facts section of Werner’s brief begins by stating that ”[o]n May 12, 2006, James Werner, Jr., Werner’s son, committed suicide.” (Appellant’s Br. at 4.) However, in his Second Amended Complaint, Werner alleged that “[tjhe Plaintiff does not believe that his son committed suicide, but instead, that his son died as the result of an unfortunate accident.” (Second Am. Compl. ¶ 18.) This distinction is relevant to Werner’s alleged violation of his liberty interest in his reputation. . We exercise plenary review over a district court’s dismissal under Fed.R.Civ.P. 12(b)(6). Atkinson v. LaFayette College, 460 F.3d 447, 451 (3d Cir.2006).	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8473835/	728OPINION OF THE COURT FUENTES, Circuit Judge: Joyce Miller appeals the District Court’s grant of the University of Pittsburgh Medical Center’s (“UPMC”) motion for summary judgment on her claims under the Americans with Disabilities Act (“ADA”) and the Pennsylvania Human Relations Act (“PHRA”). For the following reasons, we will affirm the judgment of the District Court.1 I. Because we write primarily for the parties, we only discuss the facts and proceedings to the extent necessary for resolution of this case. Miller was hired in May 1991 as a surgical technologist by UPMC. She contracted Hepatitis C during her employment and received three separate leaves of absence between 1999 and November 2004 to obtain treatment. Miller’s final treatment rendered the virus non-active and she returned to work in November 2004, but was initially restricted to forty hours each week and eight-hour shifts. Between November 2004 and November 2005, Miller had thirteen unscheduled absences. On April 5, 2005, Miller received a verbal warning for poor attendance, as she had missed nine days of work during the prior twelve months. On June 1, 2005, Miller received a written warning for missing ten days; on August 18, 2005, she received a three-day suspension because she had missed twelve days; and on December 1, 2005, she received a five-day suspension, pending termination, for having missed thirteen days. A report documenting the reasons Miller offered when calling in absent indicates that she never attributed her absences to Hepatitis C, instead typically stating she was not feeling well, vomiting, sick, or ill. She was terminated effective December 8, 2005 for excessive absenteeism in violation of UPMC’s Absence and Tardiness policy. Miller brought an action asserting claims for discrimination, failure to accommodate, and retaliation under the ADA, as well as other claims that are not the subject of this appeal.2 The District Court concluded that Miller could not make out a prima facie case of disability discrimination as she had not shown that she was qualified to perform the essential functions of her job, which the court found included attendance and being able to “take calls and work shifts as required.” Accordingly, on July 10, 2008, the court granted summary judgment to UPMC on Miller’s federal claims and, declining to exercise supplemental jurisdiction, dismissed her state-law claims without prejudice. On appeal, Miller argues that the District Court erred in (1) determining that she is not a qualified individual within the meaning of the ADA; and (2) finding that UPMC followed it own policies regarding absence and tardiness.3 II. To state a claim under the ADA, an individual must (1) be disabled within the meaning of the ADA; (2) be otherwise qualified to perform the essential functions of the job, with or without reasonable accommodations; and (3) have suffered an 729adverse employment decision. The District Court found that Miller failed to satisfy the second of these elements. In determining what constitutes the essential functions of a position, courts consider factors including the employer’s judgment of essential functions and a written description of the position. See Deane v. Pocono Med. Ctr., 142 F.3d 138, 146 (3d Cir.1998) (en banc). The District Court noted that Miller’s supervisor identified attendance and taking call as essential functions of her position. The “Responsibilities” section of her job description includes “Take call and work shifts as required.” A footnote identifies these responsibilities as “principal functions.” Attendance can constitute an essential function under the ADA and the District Court properly determined it was essential to Miller’s position as an emergency room technician. See, e.g., Jovanovic v. In-Sink-Erator Div. of Emerson Elec. Co., 201 F.3d 894, 899-900 (7th Cir.2000) (“Common sense dictates that regular attendance is usually an essential in most every employment setting; if one is not present, he is usually unable to perform his job.”) Although we have not directly ruled on the issue, we have summarily affirmed two district court cases that have held accordingly. See Santiago v. Temple Univ., 739 F.Supp. 974, 979 (E.D.Pa.1990) aff'd, 928 F.2d 396 (3d Cir.1991); Johnson v. Children’s Hosp. of Phila., Civ. A. No. 94-5698, 1995 WL 338497 at *2 (E.D.Pa. June 5, 1995), aff'd, 79 F.3d 1138 (3d Cir.1996). Given the nature of Miller’s job, assisting during surgery performed in the hospital, we find it evident that attendance is an essential element of this position. Plaintiff did not provide evidence of a reasonable accommodation that would enable her to perform this essential function. Accordingly, we will affirm the District Court’s determination. Even assuming, arguendo, that Miller were capable of performing the essential functions of her job, we would still affirm the judgment of the District Court. When a plaintiff makes out a prima facie case of ADA discrimination, “the burden shifts to the defendant ‘to articulate some legitimate, nondiscriminatory reason for the employee’s rejection.’ ” Shaner v. Synthes, 204 F.3d 494, 500 (3d Cir.2000) (quoting McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)). Here, UPMC cited Miller’s absences as the nondiscriminatory reason for firing her. Miller claims, unpersuasively in our view, that UPMC failed to follow its own written procedures. Yet Miller offers no evidence that she was treated any differently than non-disabled employees, who had similar records of absenteeism. Accordingly, we find no material issue of fact in dispute regarding the legitimacy of UPMC’s nondiscriminatory reason for the termination. For the foregoing reasons, we will affirm the District Court. . The District Court had jurisdiction under 28 U.S.C. § 1331. We have jurisdiction pursuant to 28 U.S.C. § 1291. . Since Pennsylvania courts interpret the PHRA in accord with the ADA, our analysis will apply to Miller's claims under both statutes. See Buskirk v. Apollo Metals, 307 F.3d 160, 166 n. 1 (3d Cir.2002). .We exercise plenary review over a district court's summary judgment ruling. Township of Piscataway v. Duke Energy, 488 F.3d 203, 208 (3d Cir.2007).	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8473837/	OPINION OF THE COURT FUENTES, Circuit Judge: Appellant Michael Jones pled guilty to a number of offenses involving cocaine base (“crack”). As he had a prior felony drug conviction, he was subject to a statutory mandatory minimum sentence of twenty years. He also faced a concurrent five-year mandatory minimum sentence for use of a firearm in furtherance of drug trafficking. At sentencing, based on the substantial assistance provided by Jones, the government moved for a downward departure under U.S.S.G. § 5K1.1 and for a departure from the mandatory minimum sentence pursuant to 18 U.S.C. § 3553(e). The District Court granted the motion and sentenced Jones to 72 months’ imprisonment. Thereafter, Jones filed a motion for sentence reduction pursuant to 18 U.S.C. § 3582(c)(2), arguing that he was entitled to resentencing based on a recent amendment to the Sentencing Guidelines that lowered the base offense levels applicable to crack offenses. The District Court denied the motion, holding that Jones was ineligible for a sentence reduction as he was sentenced based on the statutory mandatory minima, not based on the crack Guidelines range. For the reasons that follow, we will affirm the District Court.1 I. Because we write primarily for the parties, we only discuss the facts and proceedings to the extent necessary for the resolution of the case. On September 15, 2005, appellant Michael Jones pled guilty to one count of conspiracy to distribute crack and marijuana (Count 1); two counts of distribution of 731marijuana (Counts 6 and 7); one count of distribution of crack (Count 9); one count of possession of crack with intent to distribute (Count 12); one count of possession with intent to distribute crack within 1,000 feet of a school (Count 18); one count of possession of a firearm by a convicted felon (Count 20); and one count of use of a firearm in furtherance of drug trafficking (Count 21). Prior to Jones’s guilty plea, the government filed a notice of a prior felony drug conviction pursuant to 21 U.S.C. § 851, which increased the statutory mandatory minimum sentence on the conspiracy and crack counts (Counts 1, 9, and 12) to twenty years. Jones also faced a consecutive mandatory minimum five-year sentence for Count 21, use of a firearm in furtherance of drug trafficking, in violation of 18 U.S.C. § 924(c). At the sentencing hearing, the District Court calculated that Jones had an adjusted total offense level of 33 and was in criminal history category II, resulting in a Guidelines range of 151 to 188 months’ imprisonment. The application of the statutory mandatory minima increased the sentence to 240 months’ imprisonment on the conspiracy and crack offenses followed by 60 months on the § 924(e) offense, for a total sentence of 300 months’ imprisonment. The District Court granted the government’s motion for a downward departure under U.S.S.G. § 5K1.1 and for a departure from the mandatory minimum sentence pursuant to 18 U.S.C. § 3553(e) and imposed a total sentence of, inter alia, 72 months’ imprisonment. On May 23, 2008, Jones filed a motion for reduction of sentence pursuant to 18 U.S.C. § 3582(c)(2) on the ground that a recent amendment to the Sentencing Guidelines lowered the base offense levels applicable to crack offenses.2 The District Court denied Jones’s § 3582(c)(2) motion. In appealing that denial, Jones asserts that the District Court erred in the following ways: (1) allowing U.S.S.G. § 1B1.10 to control its interpretation of 18 U.S.C. § 3582(c)(2); (2) holding that, due to the mandatory minima, Jones’s sentence was not “based on a sentencing range that has subsequently been lowered”; and (3) failing to consider the rule of lenity in its decision. II. In relevant part, 18 U.S.C. § 3582(c)(2) provides: [I]n 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 ..., 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. In a decision filed after Jones filed his brief on appeal, United States v. Doe, 564 F.3d 305 (3d Cir.2009), we interpreted the language of § 3582(c)(2) and rejected each of the arguments that Jones raises in his brief. In all material and relevant aspects, the factual and procedural history of Doe is identical to that of the instant case. 732Specifically, the appellants in Doe pled guilty to offenses involving crack, were granted significant substantial-assistance departures below the statutory mandatory minimum sentence, filed motions for sentence reductions pursuant to § 3582(c)(2), and were denied relief. Id. at 307. In affirming the denial of the sentence reduction motions in Doe, we held that “[i]n providing that sentence reductions must be consistent with applicable Sentencing Commission policy statements, § 3582(c)(2) creates a jurisdictional bar to sentence modification when a retroactive amendment does not have the effect of lowering the Guideline sentence.” Id. at 315. Thus, in the context of § 3582(c)(2) proceedings, “the Commission’s policy statements implementing retroactive sentence reduction are binding.” Id. at 310. In Doe, we concluded that as a mandatory minimum sentence “subsume[s]” the initial Guidelines range, the crack amendment to the Sentencing Guidelines did not “have the effect of lowering the Appellants’ applicable Guideline ranges because the mandatory mínimums were unaffected by [the amendment].” Id. at 312. As a result, the district court was barred from reducing appellants’ sentences under § 3582(c)(2). Id,. Appellants in Doe further argued that the rule of lenity applied in their favor. We held that the rule of lenity was inapplicable, concluding that while “the phrases ‘based on’ and ‘the effect of lowering the defendant’s applicable guideline range’ need to be interpreted, ... they do not contain such an ambiguity that the Comb can make no more than a guess as to what Congress intended.” Id. at 315. The reasoning and result in Doe are controlling in the instant case. Accordingly, we will affirm the District Court’s denial of Jones’s § 3582(c)(2) motion. III.’ For the foregoing reasons, we affirm the District Court’s denial of Jones’s motion for modification of sentence pursuant to 18 U.S.C. § 3582(c)(2). . The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. This Court has jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review over an issue of statutory interpretation. United States v. Doe, 564 F.3d 305, 307 n. 2 (3d Cir.2009). . "On November 1, 2007 ... the United States Sentencing Commission passed Amendment 706, which changed U.S.S.G. § 2D 1.1 by lowering the base offense levels for most quantities of crack cocaine by two levels. On December 11, 2007, the Sentencing Commission made Amendment 706 retroactive by including it in the list of retroactive amendments in § IB 1.10(c) of the Guidelines.” Doe, 564 F.3d at 308 (internal citations omitted).	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8473840/	OPINION OF THE COURT CHAGARES, Circuit Judge. Almaz Tameru and Girma Tameru, husband and wife, appeal from the District Court’s grant of summary judgment to W-Franklin, L.P., doing business as Sheraton Philadelphia City Center (the “hotel”). We will affirm. I. Because we write solely for the benefit of the parties, we will only briefly summarize the essential facts. Plaintiff Almaz Tameru worked as a cashier in the parking garage housed in the same building as the hotel. On February 1, 2005, shortly after beginning her shift, she left the parking garage and entered the hotel to obtain a cup of coffee. On her way out of the hotel, after descending two or three steps, she slipped and fell. After she fell, she saw a patch of ice with a skid mark where she had slipped. Before she slipped, she had noticed that the ground was wet, but she had not seen any ice. She also noticed snow and ice on and around the roads during her drive in to work, as well as on the sidewalk area near the parking garage. A hotel security guard, Cabell Brown, responded to the incident. He prepared an incident report stating that “entire pavement area” where Mrs. Tameru fell was “wet” but “was not icy.” App. 157. Another report indicated that Brown was contacted about Mrs. Tameru’s incident at 10:46 p.m. App. 159 (“Security Activity Report”). This report indicated that he had “[tjoured outer perimeter of Hotel” and “[sjpot-checked PORT area”1 three times at 9:17 p.m. App. 159; see also App. 160 (“Basic Security Checklist” confirming that the tour of outer perimeter, including the front port, was completed at 9:17 p.m.). Brown testified that if he had observed a dangerous or hazardous condition during this inspection, including any ice in the entryway to the hotel, he would have noted the condition in the security log. The hotel’s Director of Security testified that if any security personnel or other hotel staff members report ice or snow conditions, the snow would be removed and the ground salted. No salt had been applied to the area where Mrs. Tameru fell. The Director of Security admitted that “black ice” may form if water drops below a certain temperature, App. 394, but 739he testified that he had never seen ice in that area of the hotel, which he described as located under a protective overhang and near the entrance to the hotel. App. 396. A meteorologist retained by plaintiffs prepared a report concluding that the weather conditions at the time of Mrs. Tameru’s fall were “consistent” with the “presence of black ice.” App. 178 (emphasis in original). He further opined that “[biased upon the testimony of Cabell Brown, the area he identified as being wet, would have been icy based upon the prevailing weather conditions.” Id. Analyzing the temperature data for the day in question, he stated that the temperature in the area “cooled to the freezing point of water (i.e., 32°) by 8:00 p.m.,” and that “[a]ny meltwater that formed earlier in the day from the melting of snow and ice ... began to freeze at this time.” App. 175. The temperature was reported to be 34 degrees at 7:00 p.m., 32 degrees at 8:00 p.m., 32 degrees at 9:00 p.m., 31 degrees at 10:00 p.m., and 30 degrees at 11:00 p.m. App. 176. “The temperature remained below freezing through midnight,” and thus he concluded that any melted water would be expected to remain frozen. App. 175. Plaintiffs commenced this action in the Philadelphia County Court of Common Pleas, and the original defendants2 removed the case to federal court. The hotel moved for summary judgment, and on September 11, 2008, 2008 WL 4272637, the District Court granted the motion. The District Court determined that plaintiffs had failed to produce evidence that the hotel had actual or constructive notice of the condition that caused plaintiffs’ alleged injuries. II. The District Court had jurisdiction pursuant to 28 U.S.C. §§ 1332(a) & 1441(a), and this Court has jurisdiction pursuant to. 28 U.S.C. § 1291. This Court reviews the District Court’s grant of summary judgment de novo, applying the same standard that the District Court was obligated to apply. Gonzalez v. AMR, 549 F.3d 219, 223 (3d Cir.2008). “Summary judgment is appropriate only where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.” Id. (citation omitted). See Fed.R.Civ.P. 56(c). On summary judgment, “we must view the facts in the light most favorable to the non-moving party, and draw all reasonable inferences therefrom in that party’s favor.” New Jersey Transit Corp. v. Harsco Corp., 497 F.3d 323, 326 (3d Cir.2007) (citation omitted). III. “The mere fact that an accident occurred does not give rise to an inference that the injured person was the victim of negligence.” Swift v. Northeastern Hospital of Philadelphia, 456 Pa.Super. 330, 690 A.2d 719, 722 (1997). To establish a negligence claim, a plaintiff must prove “four elements: (1) a duty or obligation recognized by law; (2) a breach of that duty; (3) a causal connection between the conduct and the resulting injury; and (4) actual damages.” Id. Under section 343 of the Restatement (Second) of Torts, which in Pennsylvania defines the duty that a possessor of property owes to a business invitee, a possessor of property is only liable for injuries to a patron caused by a dangerous condition on the premises if he “knows of or reasonably should have known of the condition.” Swift, 690 A.2d at 722 (citing Blackman v. Federal Realty Inv. Trust, 444 Pa.Super. 411, 664 A.2d 139, 142 (1995)). Therefore, an “invitee 740must prove either the [defendant] had a hand in creating the harmful condition, or [it] had actual or constructive notice of such condition.” Id. (citing Moultrey v. Great A & P Tea Co., 281 Pa.Super. 525, 422 A.2d 593, 598 (Pa.1980)). Without any evidence that the ice was observable for any significant period of time prior to the accident, a jury may not reasonably infer that the hotel had constructive notice of the hazardous condition. See Saldana v. Kmart Corp., 260 F.3d 228, 232 (3d Cir.2001) (“Circumstantial evidence that a substance was left on the floor for an inordinate period of time can be enough to constitute negligence,” but plaintiffs failure to present evidence that the condition lasted “for some minimum amount of time before the accident” justified granting summary judgment for the defendant); Gales v. United States, 617 F.Supp. 42, 44 (W.D.Pa.1985) (affirming summary judgment because “Plaintiff has not produced any evidence indicating the length of the time that the liquid was on the floor prior to the Plaintiffs fall”) (citing Lanni v. Pennsylvania R.R. Co., 371 Pa. 106, 88 A.2d 887 (1952)). Even when the “general weather conditions” are such that a hazardous condition may materialize, constructive notice cannot be inferred from this mere possibility. Sheridan v. Horn & Hardart Baking Co., 366 Pa. 485, 77 A.2d 362, (1951); accord Parker v. McCrory Stores Corp., 376 Pa. 122, 101 A.2d 377, 377-78 (1954) (department store cannot be expected to inspect “every minute or every five minutes every entrance, aisle, corridor and stairway in the store, in order to instantly clean up and eliminate every wet or possibly slippery, or possibly dangerous condition and every puddle which might be found to exist anywhere in the store”). Weather conditions can only support an inference of actual or constructive notice of a hazardous condition when coupled with evidence that the defendant had knowledge of both the weather condition at the time of the accident and the fact that the weather condition created hazards on the premises. See Cohen v. Food Fair Stores, Inc., 190 Pa.Super. 620, 155 A.2d 441, 442-43 (1959) (distinguishing Parker and Sheridan based on testimony from a store manager that “he knew of the dangerous condition of the vestibule floor on rainy days”). The evidence does not support a reasonable inference of actual or constructive notice in this case. Viewed in the light most favorable to plaintiffs, the most the evidence establishes is that the temperature had fallen enough for ice to form in the area near the hotel and that, by the time of Mrs. Tameru’s fall, ice had in fact formed. None of the evidence indicates that the defendant knew or should have known that ice had actually formed in the entryway to the hotel at the time the accident occurred. The security manager testified that he had never before observed ice in the covered entryway area, and plaintiffs did not produce any evidence suggesting that the hotel should have been aware that icy conditions developed in this area. During the routine security sweep of the premises conducted at 9:17 p.m., the security guard spot-checked the entryway area and did not detect any ice. The mere fact that the temperature had dropped to 31 degrees by 10:00 p.m. does not support a reasonable inference that the hotel should have known that ice had formed in the location where Mrs. Tameru fell. Likewise, Mrs. Tameru’s observation of ice on the ground after she fell does not support a reasonable inference that the hotel knew, or should have known, about the ice prior to her fall. Despite the meteorological evidence that the temperature had fallen below freezing in the hours before the accident, there was no evidence that ice had existed for any length of time before Mrs. Tameru observed it. Because plaintiffs failed to produce evidence of actual or *741constructive notice, the district court properly granted summary judgment for the defendant. IV. For the foregoing reasons, we will affirm the judgment of the District Court. . The port is the area near the main entry to the hotel. See App. 369. . Plaintiffs originally named a number of defendants, but the parties stipulated to the dismissal of these defendants and the addition of W-Franklin, L.P. as the sole defendant.	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8473842/	OPINION OF THE COURT CHAGARES, Circuit Judge. David Cox and Karen Cox, husband and wife, appeal from the District Court’s grant of summary judgment to Wal-Mart Stores East, L.P. (Wal-Mart). We will affirm. I. Because we write solely for the benefit of the parties, we will only briefly summarize the essential facts. On July 29, 2005, while shopping at a Philadelphia-area Wal-Mart store, plaintiff David Cox slipped on a small patch of oil on the floor of an aisle in the store’s automotive department. On the shelves above where David Cox slipped, Wal-Mart stocked five-gallon containers of motor oil. On most of the shelves, these containers were stored upright, but on the bottom shelf these containers were stored horizontally. After the incident, a Wal-Mart employee observed a business card-sized smear of oil in the aisle, along with a few drops of oil, primarily in the area under the shelves. This employee also observed oil residue on one of the containers that was stored on its side on the bottom shelf, as well as drops of oil on the shelf itself. When the employee inspected this container, he found that the lid was on securely and that no oil was leaking from the container. Plaintiffs filed this action on June 13, 2007, alleging that David Cox sustained injuries caused by Wal-Mart’s negligence and that Karen Cox suffered from loss of consortium. Wal-Mart moved for summary judgment, and on August 26, 2008, 2008 WL 4072804, the District Court granted Wal-Mart’s motion. The court concluded that plaintiffs had failed to produce any evidence that Wal-Mart had actual or constructive notice of the oil on the floor before the accident occurred, or that the horizontal stacking of the oil containers caused the oil to leak onto the floor. The court also rejected the plaintiffs’ attempt to apply the doctrine of res ipsa loquitur to establish Wal-Mart’s negligence. The plaintiffs timely appealed the grant of summary judgment. II. The District Court had jurisdiction pursuant to 28 U.S.C. § 1332(a), and this Court has jurisdiction pursuant to 28 U.S.C. § 1291. This Court reviews the District Court’s grant of summary judgment de novo, applying the same standard that the District Court was obligated to apply. Gonzalez v. AMR, 549 F.3d 219, 223 (3d Cir.2008). “Summary judgment is appropriate only where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.” Id. (citation 743omitted). See Fed.R.Civ.P. 56(c). On summary judgment, “we must view the facts in the light most favorable to the non-moving party, and draw all reasonable inferences therefrom in that party’s favor.” New Jersey Transit Corp. v. Harsco Corp., 497 F.3d 323, 326 (3d Cir.2007) (citation omitted). III. The parties agree that Pennsylvania law governs plaintiffs’ claims, as do we. In Pennsylvania, the “mere fact that an accident occurred does not give rise to an inference that the injured person was the victim of negligence.” Swift v. Northeastern Hospital of Philadelphia, 456 Pa.Super. 330, 690 A.2d 719, 722 (1997). To establish a negligence claim, a plaintiff must prove “four elements: (1) a duty or obligation recognized by law; (2) a breach of that duty; (3) a causal connection between the conduct and the resulting injury; and (4) actual damages.” Id. Under section 343 of the Restatement (Second) of Torts, which in Pennsylvania defines the duty that a possessor of property owes to a business invitee, a store owner is only liable for injuries to a patron caused by a dangerous condition on the premises if he “knows of or reasonably should have known of the condition.” Swift, 690 A.2d at 722. Therefore, an “invitee must prove either the [defendant] had a hand in creating the harmful condition, or [it] had actual or constructive notice of such condition.” Id. The District Court granted summary judgment because it concluded that plaintiffs failed to produce any evidence that Wal-Mart had actual or constructive notice of the drops of oil on the floor before the accident occurred, or that Wal-Mart was involved in any way in creating the condition. Plaintiffs argue that Wal-Mart created the dangerous condition because “it was responsible for stocking the sideways positioned oil container.” Cox Br. at 13; see also Joint Appendix (“J.A.”) 85 (report of Howard P. Medoff, Ph.D., P.E., opining that “it is reasonable and logical to conclude that the oil spilled from the sideways stacked oil container”). Plaintiffs also argue that the evidence supports a reasonable inference that the condition existed for a long enough duration to provide constructive notice. Cox Br. at 13. Plaintiffs reason that since none of the witnesses observed an “active leak,” the “presence of oil about the oil container and shelf and floor below it indicates that a slow leak over time was the source of the oil on the floor.” Id.; see also id. at 8 (citing expert report concluding that the Wal-Mart employee’s description of the incident was “consistent with container leakage over time”). The evidence simply could not permit a reasonable jury to conclude that the drops of oil were caused by Wal-Mart’s horizontal stocking of the containers. Although the plaintiffs expert surmised that a “reasonable and logical” explanation for the source of the oil is that it leaked from one of the oil containers, J.A. 85, there is no evidence to support this hypothesis, and several other causes may explain the presence of the oil. See J.A. 59 (explaining that oil drops on the floor of the store may be caused by a customer opening a container or a container falling and cracking open). On this evidentiary record, the District Court properly granted summary judgment. See Martino v. Great Atlantic & Pacific Tea Co., 419 Pa. 229, 213 A.2d 608, 610 (1965) (“There is no evidence from which the jury might reach a conclusion as to the cause of the presence of the grape in the aisle, and jurors may not be permitted to reach conclusions based upon guess or conjecture.”); Myers v. Penn Traffic Co., 414 Pa.Super. 181, 606 A.2d 926, 930 (1992) (“Without evidence that one or the other of these two equally likely occurrences caused the grape to be on the floor, 744there is no issue to be tried. Any decision would be based on mere speculation.”). The evidence also fails to support plaintiffs’ contention that the drops of oil were on the floor long enough that WalMart should have been aware of then-presence. Plaintiffs try to apply deductive logic to support their theory that a “slow leak over time was the source of the oil on the floor.” Cox Br. at 13. They begin with the undisputed fact that oil was observed on the floor and on one of the horizontally stocked containers. Since there “was no active leak,” plaintiffs argue that the “reasonable factual inference is that this was not a transitory active leak (which just happened) but was slowly evolving over some period of time.” Id. However, without any evidence that the oil was observable for any significant duration of time, a jury may not reasonably infer that Wal-Mart had constructive notice. See Gales v. United States, 617 F.Supp. 42, 44 (W.D.Pa.1985) (affirming summary judgment because “Plaintiff has not produced any evidence indicating the length of the time that the liquid was on the floor prior to the Plaintiffs fall”). The District Court properly granted summary judgment based on plaintiffs’ failure to produce any evidence that Wal-Mart had actual or constructive notice of the hazardous condition. IV. Plaintiffs also argue that the District Court erred in holding that the doctrine of res ipsa loquitur was inapplicable to these facts. Cox Br. at 13-14. Pennsylvania “has adopted the evidentiary rule of res ipsa loquitur as articulated in the Restatement (Second) of Torts.” D’Ardenne v. Strawbridge & Clothier, Inc., 712 A.2d 318, 321 (Pa.Super.Ct.1998). The Restatement provides that a plaintiffs injury may be “inferred” to have been caused by the defendant’s negligence when “(a) the event is of a kind which ordinarily does not occur in the absence of negligence; (b) other responsible causes, including the conduct of the plaintiff and third persons, are sufficiently eliminated by the evidence; and (c) the indicated negligence is within the scope of the defendant’s duty to the plaintiff.” Restatement (Second) of Torts § 328D(1). However, res ipsa loquitur cannot be invoked under these circumstances. In cases in which “a patron suffers injury in a store from a transitory danger, res ipsa loquitur does not apply.” Neve, 771 A.2d at 790. The doctrine may be applied to a “defect in the building or its fixtures,” which exists “for sufficient time to charge the defendant store with knowledge,” id., but it does not apply to a “transitory defect like a spill,” id. at 791, because “shopkeepers cannot be charged with notice of transitory dangers that can materialize a split second before an injury occurs.” Id. at 790. The temporary spill of a few drops of oil is not the type of defect for which res ipsa loquitur may be applied. In addition, the District Court properly determined that plaintiffs failed to produce evidence eliminating other potential causes for the drops of oil. See Lonsdale v. Joseph Home Co., 403 Pa.Super. 12, 587 A.2d 810, 816 (1991) (affirming judgment for defendant where plaintiff failed to produce evidence that “would eliminate third parties (e.g., ... other store patrons) as possible causes of the accident.”). We agree with the District Court that the doctrine of res ipsa loquitur does not apply to plaintiffs’ case. V. For the foregoing reasons, we will affirm the judgment of the District Court.	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8473845/	*746OPINION OF THE COURT NYGAARD, Circuit Judge. Appellant Michael Stradford appeals his sentence of one hundred and eighty eight months imprisonment, which he received for various drug-related offenses. On appeal, Stradford raises numerous arguments challenging the District Court’s sentence. We will affirm. Appellant was charged in a one-count Information with violations of 21 U.S.C. § 841(a)(1), (b)(1)(B) and 18 U.S.C. § 2 — distribution and possession with intent to distribute more than five grams of crack cocaine. Stradford pleaded guilty to the charge. On appeal, Stradford argues, first, that the District Court erred when it did not depart downward under United States Sentencing Guidelines § 4A1.3 because his career offender status overstated his criminal history and under United States Sentencing Guidelines § 5k2.0 because the District Court failed to consider mitigation evidence. Stradford did not move for a departure on these grounds before the District Court, however. If Stradford had moved for the departure and the District Court had exercised its discretion and denied the motion, we would lack jurisdiction to review that decision. See United States v. Minutoli, 374 F.3d 236, 240 (3d Cir.2004). But, unfortunately for Stradford, he did not ask the District Court for a departure. It would be a far stretch to say that the District Court erred for failure to do something it was not requested to do. We simply lack jurisdiction to review the District Court’s failure to downward depart sua sponte. Jurisdiction only arises if the District Court’s refusal to depart downward is premised on the mistaken belief that it lacks discretion to do so. Stradford next argues that his sentence was unreasonable because he was a victim of sentencing entrapment, and it would therefore be unfair to impose the crack cocaine sentencing guidelines. This argument is baseless, however, because Stradford’s status as a career offender was the basis for his sentencing calculation. Stradford also maintains that his sentencing range was substantively unreasonable. A fair reading of the record demonstrates that, in formulating and imposing sentence, the District Court did not abuse its discretion in any respect. The District Court evaluated each of the relevant 18 U.S.C. § 3553(a) factors and imposed sentence at the bottom of the Guidelines range. We therefore reject Stradford’s challenge to that sentence. See Rita v. United States, 551 U.S. 338, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007). We also reject Stradford’s argument that the District Court failed to consider the conditions of his pre-trial confinement when passing sentence. Here, the District Court acted well within its discretion and imposed a sentence at the lowest end of the Guideline’s range. The record conclusively establishes that the District Court struck a reasonable balance between the mitigating factors, Stradford’s extensive criminal history, and the need for deterrence. Accordingly, we will affirm Stradford’s sentence.	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8473847/	OPINION OF THE COURT STAPLETON, Circuit Judge: James Zwick appeals his seventy-seven month sentence for one count of bank robbery in violation of 18 U.S.C. § 2113(a). According to Zwick, the District Court improperly determined the length of his term of imprisonment based on rehabilitative goals. For the reasons that follow, we will affirm. I. Because we write only for the parties who are familiar with the factual context and procedural history of this case, we set forth only those facts necessary to our analysis. Zwick pled guilty to one count of bank robbery in violation of 18 U.S.C. § 2113(a). He sought a sentence below the Guidelines range (seventy-seven to ninety-six months of incarceration). In support of his argument for a variance, Zwick explained that he had committed the crime because he was threatened by drug dealers to whom he owed money. He asserted that a sentence below the Guidelines range would help him seek treatment for his drug addiction and would also allow him to return to his occupation as a boilermaker and 748provide restitution to his victim more quickly. As additional factors militating in favor of a lower sentence, Zwick also pointed to his health problems and asserted that someone his age (fifty years) was statistically less likely to recidivate than a younger defendant. In opposing his request for a variance, the government stressed Zwick’s long criminal history and the seriousness of his offense. The District Court considered Zwick’s arguments but denied Zwick’s motion for a variance, citing the presentence report (which contained Zwick’s extensive prior criminal history), the arguments made by counsel, and the Court’s additional findings of fact. The Court sentenced Zwick to seventy-seven months of imprisonment, a sentence on the lowest end of the Guidelines range, and ordered him to pay restitution in the amount of $1,143. The Court also recommended to the Bureau of Prisoners that Zwick participate in its 500-hour residential treatment program to the extent he was eligible. It is this sentence from which Zwick appeals. II. Zwick claims that the District Court violated the Sentencing Reform Act, 18 U.S.C. § 3582(a), by increasing his sentence on the basis of his need for alcohol and drug rehabilitation, as well as his need for medical treatment. In support of his argument, Zwick points to the Court’s statement that “the sentence that I have imposed gives you the opportunity to get, No. 1, good medical care; and No. 2, drug treatment in the 500-hour program.” App. at 144-45. The Court also noted that, “some of the conditions of which you complained, diabetes, arthritis, Hepatitis C, I have seen in other records and I know that the prison system does afford treatment.” App. at 145. The Court also stated that Zwick would receive treatment that he “may not have had” in the past as part of his sentence. App. at 147. We are unpersuaded by Zwick’s argument that these statements show that the District Court lengthened his term of imprisonment based on his need for medical treatment and rehabilitation. To the contrary, the District Court expressly relied on “the nature and circumstances of the offense as well as [Zwick’s] history and [his] background” when determining the sentence. App. at 143. In addition to the seriousness of the offense, the Court’s explanation of its sentence emphasized Zwick’s extensive criminal history and the need for specific deterrence: [T]here’s been an extensive history of criminal offenses that go back to the early 1970s. Some of them are property crimes as we know, some of them are burglaries, some of them involve theft and taking. So — and they are consistent. They continue right up to the present time What’s telling to me is despite prior punishment, whether probation time or jail time, you have continued to commit crimes. So I have weighed all of that and I have come to the determination that I have. App. at 144. We further note that the Court made the majority of the comments identified by Zwick as problematic in the context of addressing his argument that he had not had prior drug treatment. The Court noted that there was “nothing stopping” Zwick from receiving treatment prior to his commission of the offense and then indicated that he would be able to receive treatment while serving his sentence. App. at 144. Accordingly, we find nothing in the record to suggest that the Court improperly lengthened Zwick’s sentence so that he could receive rehabilitation. 749We are likewise not persuaded by Zwick’s argument that the District Court’s judgment was inconsistent with our precedent in United States v. Manzella, 475 F.3d 152 (3d Cir.2007). In Manzella, the record established that the sentencing judge had lengthened the defendant’s sentence for the purpose of rehabilitation. Here, a fair reading of the sentencing judge’s explanation of his sentence indicates that the decisions regarding incarceration and the length thereof were based upon consideration of the sentencing guidelines, and the other factors under § 3553(a), including the nature of his offense and his personal history. Accordingly, we perceive no conflict with Manzella. III. For these reasons, the judgment of the District Court will be affirmed.	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8473849/	OPINION OF THE COURT STAPLETON, Circuit Judge: Nicholas Fera appeals from the District Court’s orders (1) granting summary judgment in this 42 U.S.C. § 1983 action in favor of the Borough of Baldwin, Baldwin Chief of Police Christopher Kelly, and Baldwin Council members John Conley, David Depretis, Michael Ducker, Michael Fetsko, Jr., John Ferris, Jr., and Francis Scott, and (2) denying Fera’s motion for reconsideration. We will affirm the judgment of the District Court. I. In November 2001, Appellant Nicholas Fera was elected to the Baldwin Borough Council (“the Council”) in Pittsburgh. In October 2004, the Council and a few other Borough officials held a budget workshop, during which they discussed, inter alia, unlicensed gaming devices. One of the Council’s members noted that his barber told him that Edward Albert, the owner of a local establishment called the “Haf Mart,” owned seven gaming devices but had licenses for only four of these devices. Although the Council discussed the possibility of investigating all proprietors who owned gaming devices, it does not appear that the Council made any firm decisions at the workshop. The day after the workshop, Fera went to the Haf Mart, purportedly to buy a lottery ticket. While he waited in line, he saw Albert and motioned him to the rear of the store. When the two of them gathered at the rear of the store, Fera whispered to Albert that he should get the additional licenses for his gaming machines. According to Fera, he did not tell Albert to hide the unlicensed gaming machines or warn Albert that the police might be investigating him. The next day, Baldwin Chief of Police Christopher Kelly called Fera and asked him to come to the police station. When Fera arrived at the station, Chief Kelly explained that a Haf Mart employee had reported that Fera had told Albert to hide the unlicensed gaming devices. Chief Kelly noted that Fera might be subject to 751criminal liability for hindering an investigation, and that there could be negative publicity against Fera and his family. Chief Kelly then either told or advised Fera to resign from the Council. After Fera refused, Chief Kelly asked him if he wanted to call anyone to discuss the matter. Fera asked Chief Kelly to call Sam McPherson, a former mayor of Baldwin Borough. At the end of the phone call, McPherson advised Fera to resign. After the phone call, Chief Kelly allegedly told Fera that he had ten minutes to make a decision and that, if he decided not to resign, Chief Kelly would have to prepare a police report. Fera then agreed to resign. Chief Kelly volunteered to type the resignation letter and asked Fera how he wanted the letter to read. Fera replied that he did not care what it said, so Chief Kelly composed a letter stating that Fera was resigning due to “an unexpected family emergency.” Fera signed the letter upon its completion. Although Chief Kelly did ultimately prepare a police report about the incident, no criminal charges were ever brought against Fera. At some point thereafter, Gale Dobson Miscush, the Borough’s Tax Collector, allegedly disseminated a series of “letters” to the public that portrayed Fera in a negative light by alluding to, inter alia, the incident at the Haf Mart. It appears that Fera tendered only one of these “letters” to the District Court. That document, titled “The Truth & Nothing But the Truth,” was published in the “Taxpayer Gazette” shortly before a local election.1 This document stated in pertinent part: Did you know the reason former Councilman Nick Fera resigned from council was because he had taken information from an executive council meeting & told a local business owner that he was under investigation. He hindered a police investigation, a criminal act, and violated the state ethics laws. Police reports are public information. His resignation & police report were filed on 10/27/04. In October 2006, Fera commenced the instant action in the Allegheny County Court of Common Pleas against Baldwin Borough, the Baldwin Borough Police Department, Chief Kelly, and Council members John Conley, David Depretis, Michael Ducker, Michael Fetsko, Jr., John Ferris, Jr., and Francis Scott. In January 2007, Defendants removed the case to the Western District of Pennsylvania. A few weeks later, Fera filed an amended complaint, naming all of the original defendants except the Baldwin Police Department. The amended complaint raised the following claims: (1) the defendants unlawfully seized Fera at the police station and violated his due process and equal protection rights; (2) the defendants engaged in a civil conspiracy in an attempt to force Fera to resign from the Council; (8) the published material was defamatory and had been provided to the author by the defendants; and (4) Fera was entitled to attorneys’ fees and costs pursuant to 42 U.S.C. § 1988. After the close of discovery, the defendants moved for summary judgment. In September 2007, the District Court granted these motions as to all of Fera’s claims. In doing so, the court concluded that [cjonspicuously absent from [Fera’s] statement of facts are any averments, let alone references to evidence of record, of the manner in which any defendant somehow disseminated any information to the citizen who defamed Plaintiff in a series of public letters, any proof of any conspiracy or agreement to 752support his conclusory allegations of conspiracy and agreement to force him to resign, or that he was at any time restrained or detained or otherwise had his freedom of movement curtailed by Chief Kelly. (Sept. 20, 2007, Memorandum Opinion at 9, 2007 WL 2769698.) Fera subsequently moved the court to alter or amend that judgment. The court denied the motion with respect to Fera’s federal claims, concluding that the motion “simply rehashes the arguments he previously made in opposition to summary judgment....” (Oct. 18, 2007, Memorandum Order at 3, 2007 WL 3053263.) The court granted the motion, however, as to Fera’s state law defamation claim, stating that it “agree[d] with Plaintiff and deems it a more appropriate exercise of discretion to follow its usual practice and decline to exercise its discretion to entertain the common law defamation claim pursuant to its supplemental jurisdiction.... ” (Id. at 4.) Accordingly, the court remanded the defamation claim to the Allegheny County Court of Common Pleas. Fera initially pursued this appeal without representation. In February 2008, he filed a pro se informal brief. Fera subsequently retained Arnold Y. Steinberg, Esquire, who filed a reply brief on Fera’s behalf in May 2008. Fera’s opening brief argues (1) that the District Court “did not have all of the facts,” and that he “was not represented right” by counsel in the District Court proceeding; (2) that the defendants did not attend two court-scheduled settlement conferences; and (3) that the District Court did not give him enough time to conduct discovery. Fera presents two additional arguments in his reply brief. Although somewhat difficult to discern, it appears that his first argument is that the District Court erred in granting summary judgment as to Fera’s due process claim because he sufficiently demonstrated an injury to his reputation. The second argument is that the District Court erred in granting summary judgment as to his Fourth Amendment claim because, contrary to its conclusion, his encounter with Chief Kelly constituted an unlawful seizure. II. The preliminary task in this appeal is determining which issues are before this Court. An appellant is “required to set forth the issues raised on appeal and to present an argument in support of those issues in [his] opening brief.” Kost v. Kozakiewicz, 1 F.3d 176, 182 (3d Cir.1993); see Fed. R.App. P. 28(a)(5), (9). Although “[i]t is well settled that an appellant’s failure to identify or argue an issue in his opening brief constitutes waiver of that issue on appeal,” United States v. Pelullo, 399 F.3d 197, 222 (3d Cir.2005), this Court has not held in a precedential opinion that this rule applies with equal force to pro se litigants. Other Courts of Appeals, however, have concluded that a pro se litigant’s failure to raise an issue in his opening brief constitutes a waiver of that issue in the absence of exceptional circumstances. See Timson v. Sampson, 518 F.3d 870, 874 (11th Cir.2008) (per curiam) (“While we read briefs filed by pro se litigants liberally, issues not briefed on appeal by a pro se litigant are deemed abandoned. Moreover, we do not address arguments raised for the first time in a pro se litigant’s reply brief.” (internal citations omitted)); Anderson v. Hardman, 241 F.3d 544, 545 (7th Cir.2001) (“Rule 28 applies equally to pro se litigants, and when a pro se litigant fails to comply with that rule, we cannot fill the void by crafting arguments and performing the necessary legal research .... ”); Al-Ra’Id v. Ingle, 69 F.3d 28, 31 (5th Cir.1995) (“An appellant’s brief must contain an argument on the issues that are raised____There is no exemption 753for pro se litigants, though we construe their briefs liberally.”). We agree with these courts that in fairness to the opposing side it is not asking too much of pro se litigants to require at least an identification in the first brief of the issues they are asking the appeals court to resolve. Fera has tendered no satisfactory explanation for his failure to identify his reply brief arguments in his opening brief, and we hold that those arguments have been waived. Our ultimate conclusion would be no different, however, if we held to the contrary. Both of those arguments are without merit. III. Fera’s opening brief does not identify any facts that were overlooked by the District Court, let alone explain how such facts warrant a different outcome in this case. As for the defendants’ alleged failure to attend the two settlement conferences, even if this allegation is true,2 Fera does not indicate what relief he seeks or otherwise explain how defendants’ failure to attend those conferences impacted the disposition of this case. Finally, Fera’s argument regarding his ability to conduct discovery is unpersuasive. This suit was originally filed in October 2006. In June 2007, Fera’s original attorney successfully withdrew as counsel. On July 9, 2007, two weeks before the close of discovery, Fera’s new attorney entered his appearance and filed an unopposed motion to extend the discovery deadline by thirty days. The District Court denied the motion without prejudice and held that the parties could file a renewed joint motion to extend the discovery period so long as the proposed discovery deadline did not affect the August 17, 2007, deadline for filing summary judgment motions. Although Fera never renewed his discovery motion, he now seems to claim that the District Court did not give him enough time to conduct discovery. He does not indicate, however, what additional discovery he intended to conduct or how that discovery might have affected the disposition of his claims. Moreover, a review of the District Court docket provides no indication that the parties had insufficient time to undertake discovery or otherwise prepare for summary judgment.3 Accordingly, the District Court did not abuse its discretion in overseeing the discovery in this case. IV. “[T]o make out a due process claim for deprivation of a liberty interest in reputation, a plaintiff must show a stigma to his reputation plus deprivation of some additional right or interest.” Hill v. Borough of Kutztown, 455 F.3d 225, 236 (3d Cir.2006). A plaintiff satisfies the stigma prong of this test by showing that the allegedly stigmatizing statements were made publicly and were false. Id. Fera cannot satisfy the stigma prong, for he fails to demonstrate that any of the Appellees made the public state-754merits of which he complains. Although he contends that the Borough’s Tax Collector, who is not a party to this suit, authored those statements, he fails to establish that any of the Appellees facilitated the statements’ publication. Moreover, that the Borough’s Tax Collector may have published these statements does not render the Borough susceptible to liability here, for Fera has not shown that the allegedly stigmatizing statements reflected the Borough’s policy or custom. See Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) (concluding that a municipality’s liability under 42 U.S.C. § 1983 for the acts or omissions of its employees or agents is limited to circumstances where the execution of the municipality’s custom or policy caused the constitutional violation). Accordingly, Fera’s first reply brief argument lacks merit. Turning to Fera’s second reply brief argument, “a person is ‘seized’ only when, by means of physical force or a show of authority, his freedom of movement is restrained.” United States v. Mendenhall, 446 U.S. 544, 553, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980). There is no seizure if “a reasonable person would feel free to decline the officers’ requests or otherwise terminate the encounter.” Florida v. Bostick, 501 U.S. 429, 436, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991). The District Court correctly concluded that Fera’s meeting with Chief Kelly did not constitute a seizure. Fera reported to the police station voluntarily, and it does not appear that, after Fera arrived at the station, the meeting evolved into a seizure. Fera does not allege that Chief Kelly physically restrained him, flashed his weapon or made a similar show of authority, or even raised his voice during the meeting. Granted, Fera does allege that Chief Kelly gave him an ultimatum — resign or be named in a police report. Yet this ultimatum, though asking Fera to make a difficult decision, did not restrict his freedom of movement or otherwise prevent him from ending the meeting. Fera does not allege that Chief Kelly, either in words or actions, barred him from leaving the station until he decided whether to resign. Indeed, there is no indication that Fera could not have simply left the police station without responding to the ultimatum. In light of all of the circumstances surrounding this meeting, it seems that a reasonable person in Fera’s position would have felt free to end the encounter. V. The judgment of the District Court will be affirmed. . Fera was running in that election in an attempt to win back his seat on the Council. He ultimately lost the election. . A review of the docket suggests that both conferences took place, and there is no indication that Appellees’ counsel were not present. Although it appears that Chief Kelly himself did not attend either conference, he obtained permission from the court to be excused from attending (the court required Chief Kelly to “be available" by telephone during the second settlement conference). . Fera's notice of appeal cryptically alleges that his attorney told him that they could not “use” Chief Kelly's deposition or the police report because those materials were "beyond discoveries.” To the extent Fera is attempting to argue that the District Court prevented him from using certain material obtained through discovery in his opposition to Appellees’ summary judgment motions, such a claim is baseless.	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8473851/	OPINION SLOVITER, Circuit Judge. Appellant Tracey Lea was sentenced to six months imprisonment for certain probation violations. She appeals the reasonableness of that sentence. We will affirm.1 I. In 2006, Lea pled guilty to one count of making a false statement to a firearms licensee in violation of 18 U.S.C. § 924(a)(1)(A) and was sentenced to a three-year term of probation. The District Court imposed several special conditions of probation, including that Lea refrain from use or possession of drugs, that she submit to drug tests, and that she participate in drug and mental health treatment (Lea suffers from depression and suicidal ideation). Lea violated numerous conditions of her probation. She failed to take required drug tests and subsequently tested positive for phencyclidine, refused to participate as ordered by her probation officer in mental health and drug treatment, and removed her electronic monitoring bracelet and disappeared for four months when ordered to attend an in-patient treatment facility. After she was apprehended, the District Court held a revocation of probation hearing. Lea admitted her probation violations, including specifically her drug use, the removal of her electronic monitoring bracelet, and her refusal to attend in-patient treatment as ordered by her probation officer. According to Lea, she removed her monitoring bracelet and refused to attend treatment because she needed to provide care for her grandmother (who subsequently died) and daughter. She also stated that she recognized her need for mental health care. The District Court correctly determined that Lea faced a Guidelines sentencing range of three to nine months imprison*756ment. See U.S.S.G. § 7B1.4(a). Lea argued for a sentence at the bottom of the Guidelines range in light of her mental health problems, the breakdown of her family structure, her intelligence, and the loss of her grandmother. The government requested that the District Court impose a term of imprisonment in light of the seriousness of the probation violations. The District Court found that Lea was in violation of her probation and revoked probation. It imposed a sentence of six months imprisonment and thirty months of supervised release (including the first 120 days in a halfway house). The District Court also recommended that Lea receive drug and mental health treatment during her detention and supervised release. The Court concluded that this sentence was “the minimum amount of time that [Lea] needs to be in custody before she can really reflect and process what has occurred and what’s at risk.” App. at 17. The District Judge also found that Lea would be well served by receiving treatment in a custodial setting because “I don’t think that she is anywhere near ready to go on the street right now.” App. at 16. II. We review the reasonableness of a sentence under an abuse-of-discretion standard. See United States v. Tomko, 562 F.3d 558, 564 (3d Cir.2009) (en banc). We have outlined a three-step process which district courts must complete in imposing a sentence. First, the court must calculate the applicable Guidelines range. Second, it must rule on any motions for departure pursuant to the Guidelines. Finally, it must consider the § 3553(a) sentencing factors to determine the appropriate sentence. See id. at 567. Here, Lea contends that the Court failed to adequately consider certain mitigating factors — particularly her upbringing, the impact of a prison sentence on her family, her intelligence, and her mental health problems. However, the District Court’s sentence was both procedurally and substantively reasonable. The Court correctly calculated the Guidelines range, heard argument from both parties regarding an appropriate sentence, and explained its reasons for imposing the sentence on the record. Indeed, the record shows that the District Court was aware of the mitigating factors cited by Lea and considered them, including particularly her need for mental health and drug treatment. Finally, we cannot conclude that the District Court abused its discretion in ordering a six month term of imprisonment in light of the serious probation violations committed by Lea. 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).	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8473853/	OPINION SLOVITER, Circuit Judge. Appellant Adam Levinson pled guilty to one count of wire fraud, in violation of 18 U.S.C. § 1343, and one count of filing a false tax return, in violation of 26 U.S.C. § 7206(1). The District Court imposed a below-Guidelines sentence of twenty-four months probation, including six months of home confinement. After the government appealed, this court concluded that the sentence was proeedurally unreasonable, vacated the sentence, and remanded the case to the District Court for resentencing. See United States v. Levinson, 543 F.3d 190 (3d Cir.2008). On remand, the District Court imposed a new, but still below-Guidelines, sentence of imprisonment for twelve months and one day. Levinson now appeals, arguing that the new sentence is also proeedurally unreasonable because the District Court allegedly concluded that it was required to weigh the Sentencing Guidelines more heavily than the other sentencing factors enumerated by Congress in 18 U.S.C. § 3553(a). I. Levinson was the manager and minority owner of a company that provided filtered drinking water to residences and businesses. He falsely reported the company’s financial status and operational performance over a two year period, and his business partner invested millions of dollars into the company based on those misrepresentations. Levinson also hired an outside consultant to hide his machinations, forced his employees to participate in the fraud, and punished employees who refused to do so. After his business partner received an anonymous tip regarding his wrongdoing, an audit uncovered Levinson’s misrepresentations as well as his use of over $177,000 of the company’s revenue for his personal benefit. Levinson also failed to report his use of those funds on his tax returns, and the government suffered an aggregate tax loss of about $44,000. 758As noted above, Levinson pled guilty to one count of wire fraud and one count of filing a false tax return based on the foregoing events. He also settled a civil fraud suit brought by his business partner by paying $350,000 and relinquishing his ownership interest in their company. At the first sentencing hearing, the District Court correctly determined that Levinson faced an advisory Guidelines range of twenty-four to thirty months imprisonment. The Court also rejected Levinson’s request for a downward departure under the Sentencing Guidelines based on his allegedly diminished mental capacity. After hearing argument from both parties, the District Court imposed a sentence of twenty-four months probation, including a six month period of home confinement, as well as 100 hours of community service, about $177,000 in restitution, and a $200 special assessment. The government appealed to this court, and as noted above, we vacated the sentence and remanded the case because the sentence was procedurally unreasonable. First, we concluded that the District Court’s finding that Levinson’s conduct inflicted no harm on the public — a finding upon which the District Court heavily relied in imposing its below-Guidelines sentence — was clearly erroneous given the tax fraud conviction. Second, we concluded that the District Court’s explanation for the variance was inadequate, particularly in light of that Court’s findings that Levinson was not an atypical defendant in terms of his personal characteristics or the particulars of his crimes. On remand, the District Court reaffirmed its earlier rulings under the Sentencing Guidelines and again heard argument from the parties regarding an appropriate sentence. The government argued for a sentence within the Guidelines range. It contended that such a sentence was appropriate because of the seriousness of Levinson’s fraud and false tax filings, the need for deterrence, and the absence of any personal characteristics that distinguish Levinson from the mill-run white collar defendant. On the other hand, Levinson argued that the District Court should again impose a sentence without a term of imprisonment. According to Levinson, the gravamen of the case was a private fraud that was amicably settled in the civil lawsuit between Levinson and his business partner. He also argued that a term of imprisonment would negatively impact his family, particularly his learning-disabled son, and that his good conduct under the original sentence supported a below-Guidelines sentence. The District Court imposed a below-Guidelines sentence of imprisonment for twelve months and one day. The Court identified several mitigating factors specific to Levinson, including his good conduct on probation, the extent to which Levinson and his family had already been punished for his crimes, and his slight risk of recidivism. The Court also stated that a within-Guidelines sentence was not appropriate in light of the other sentences issued to white collar criminals within the district and the passage of time. Nonetheless, the Court concluded that the term of imprisonment ordered was necessary to reflect the seriousness of the offenses, to promote respect for the law, to provide just punishment, and to afford adequate deterrence.1 II. We review the procedural and substantive reasonableness of a sentence under an abuse-of-discretion standard. United States v. Tomko, 562 F.3d 558, 567 (3d 759Cir.2009) (en banc). “[A]n abuse of discretion has occurred if a district court based its decision on a clearly erroneous factual conclusion or an erroneous legal conclusion,” but “absent any significant procedural error, we must give due deference to the district court’s determination that the § 3553(a) factors, on a whole, justify the sentence.” Id. at 567-68 (internal quotation and citations omitted). Levinson argues that the District Court’s new sentence was procedurally unreasonable because the Court improperly concluded that it was required, as a matter of law, to weigh the advisory Guidelines sentence more heavily than his individual characteristics. That is, Levinson argues that the case is analogous to Nelson v. United States, — U.S. —, 129 S.Ct. 890, 172 L.Ed.2d 719 (2009), which reaffirmed that a sentencing judge may not apply a presumption of reasonableness to sentences recommended by the Guidelines. However, Levinson misconstrues the District Court’s statements regarding its analysis of § 3553(a)’s sentencing factors. Importantly, the Court expressly recognized that it must “consider all of the Section 3553(a) factors in determining a reasonable sentence.” App. at 41. The record as a whole clearly demonstrates that the Court did so. Specifically, it found that several factors supported a sentence below the Guidelines range, including Levinson’s good conduct while on probation, the extent to which he had already been punished, his slight risk of recidivism, and the passage of time. The Court then properly balanced those mitigating circumstances against the remaining § 3553(a) factors, including but not limited to the advisory Guidelines range, and concluded that the term of imprisonment imposed was appropriate. In fact, as the government argues, the very fact that the District Court imposed a sentence substantially below the advisory Guidelines range undermines Levinson’s claim that the Court afforded improper weight to the Guidelines.2 Levinson also argues that the District Court erred because it allegedly stated that the Sentencing Guidelines fully account for the individual history and characteristics of a defendant. However, the Court merely stated that the Guidelines reflect “the history and characteristics of the defendant insofar as the defendant’s criminal history goes,” App. at 41, and they in fact do so in the criminal history category component of the Guidelines calculation. More importantly, as described above, the District Court clearly considered Levinson’s individual characteristics and relied on those characteristics to impose a substantially below-Guidelines sentence. In sum, the District Court appropriately responded to the procedural errors identified by this court in Levinson’s original sentencing proceedings and provided a complete, cogent, and reasonable explanation on the record of its reasons for imposing the new sentence on remand. III. For the above-stated reasons, we will affirm the 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). . Levinson also points to several statements made by the District Court in an order staying his commitment pending appeal to this court to support his argument that the Court placed improper weight on the Sentencing Guidelines. Assuming that these statements, which were made in an order issued after Levinson’s second sentencing hearing, are relevant to the procedural reasonableness of the sentence itself, they do not suggest that the District Court misunderstood its responsibilities under § 3553(a).	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8473855/	OPINION McKEE, Circuit Judge. Anthony Blaso appeals the sentence reduction he received as a result of his motion for a reduction of sentence pursuant to 18 U.S.C. § 3582(c)(2). Blaso requested a sentence of 80 months, however, the district court imposed a sentence of 87 months. Blaso’s appointed appellate counsel has filed an Anders and requested for leave to withdraw. For the reasons that follow, we will grant counsel’s motion to withdraw and affirm the district court’s judgment of sentence. I. Facts and Procedural History Inasmuch as we write only for the parties, it is not necessary to recite at length the facts of this case. It is sufficient to note that Blaso pled guilty to a charge of conspiracy to distribute and possess with intent to distribute more than 50 grams of cocaine base in violation of 21 U.S.C. § 846, pursuant to a written plea agreement. His Pre-Sentence Investigation Report (“PSR”), calculated Blaso’s base 761offense level to be 34 and his criminal history category to be II. This resulted in a Guidelines sentencing range of 168 to 210 months. The district court adopted the PSR without change. The district court also granted the government’s 5K1.1 motion for a downward departure based on substantial assistance. This reduced the applicable Guideline range to 108 to 135 months. After considering the factors set forth in 18 U.S.C. § 3553(a), the district court concluded that both Blaso’s health and his relationship with his family weighed in favor of a sentence that was lower the range suggested by the Guidelines, and sentenced Blaso to a term of imprisonment of 100 months. We affirmed the sentence on direct appeal. See United States v. Blaso, 262 Fed.Appx. 463 (3d Cir.2008) (non-preeedential). Thereafter, Blaso filed a motion for reduction of sentence based on Amendment 706 to the Guidelines, which retroactively reduced the base offense level for most cocaine base offenses by two levels. Blaso requested a reduced sentence of 80 months. Blaso argued that Amendment 706 reduced his base offense level from 34 to 32. Combining that offense level with a criminal history category of II resulted in an amended advisory Guidelines range of 135 to 168 months. However, Blaso claimed that his the low end of that range should be reduced by 40.5% to reflect the reduction the district court had granted from the Guideline range used to determine his original sentence.1 The district court rejected Blaso’s request for a reduction to 80 months, but did reduce the sentence to 87 months, as we noted at the outset. The court arrived at that sentence by lowering his base offense level to 32, and then reducing the offense level by an additional four levels for substantial assistance. This resulted in an amended advisory Guidelines range of 87 to 108 months. Although the district court had originally imposed a sentence below that suggested by the applicable Guidelines range, it declined to do so upon re-sentencing. The court concluded that after “applying the guideline range at a four level reduction ... and considering section 3553 and the need for public safety, a reduced sentence at the low end of the range is appropriate.” (Appellate Counsel’s Br.App. 3.) Blaso then filed this appeal, and his attorney filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and Third Circuit Local Appellate Rule (“LAR”) 109.2, stating that he is unable to identify any non-frivolous issues for review and asking for leave to withdraw as counsel for Blaso.2 In his Anders brief, counsel correctly notes that the only potential issue under these circumstances is whether the district court abused its discretion by reducing Blaso’s sentence to 87 months rather than to 80 months as Blaso requested. Counsel’s Anders brief states that nothing in the record indicates the district court abused its discretion in its decision to impose a reduced sentence of 87 months. In accordance with LAR 109.2, both the government and Blaso were provided with a copy of the Anders brief. The government 762filed a response brief, but Blaso has chosen not to file a pro se brief. II. Discussion Under Anders, appointed appellate counsel can request permission to withdraw as counsel if “after a conscientious examination of the record,” he or she determines that appellant’s case is “wholly frivolous.” 386 U.S. at 744, 87 S.Ct. 1396. The request for leave to withdraw “must, however, be accompanied by a brief referring to anything in the record that might arguably support the appeal.” Id. This means that “appellant’s counsel must ‘satisfy the court that he or she has thoroughly scoured the record in search of appealable issues’ and then ‘explain why the issues are frivolous.’ ” United States v. Coleman, 575 F.3d 316, 319 (3d Cir.2009) (quoting United States v. Marvin, 211 F.3d 778, 780 (3d Cir.2000)). Pursuant to LAR 109.2, this brief must be furnished to the government and the appellant. The government is to file a response brief, and the appellant may file a pro se response brief. See United States v. Youla, 241 F.3d 296, 300 (3d Cir.2001). If, after reviewing all briefs, “the [appellate] panel agrees that the appeal is without merit, it will grant counsel’s Anders motion and dispose of the appeal without appointing new counsel.” LAR 109.2. In reviewing counsel’s Anders brief, we must (1) ensure that counsel has complied with the requirements of LAR 109.2 and Anders-, and (2) independently review the record to see whether there are any non-frivolous issues. See Coleman, 575 F.3d at 319. After reviewing this record, it is clear that counsel has complied with the requirements of LAR 109.2 and Anders. He has provided copies of his Anders brief to Blaso and the government. He also thoroughly reviewed the record to identify any potential issues for appeal and explained why the sole issue was frivolous. Our independent review of the record leads to the same conclusion. There are no non-frivolous grounds to challenge the district court’s decision to reduce Blaso’s sentence to 87 months as opposed to the requested 80 months. Appellate counsel correctly notes that the only possible grounds for challenging the extent of the reduction of sentence is that the district court abused its discretion by not reducing the sentence by seven more months imprisonment as Blaso requested. However, that would surely be a frivolous claim because the district court did not have to grant any reduction in sentence at all. The plain language of 18 U.S.C. § 3582(c)(2) and section 1B1.10(b)(1) of the Guidelines both clearly establish that a district court’s decision to grant a reduction in sentence is discretionary. Section 3582(c)(2) states that a court “may” reduce a defendant’s sentence based on an amended Guidelines sentencing range. The Guidelines provide that the district court has discretion to determine “whether, and to what extent” a sentence reduction is warranted. U.S. Sentencing Guidelines Manual § lB1.10(b)(l) (emphasis added); see also United States v. Styer, 573 F.3d 151, 153 (3d Cir.2009) (“The determination as to whether a reduction is warranted ... is committed to the discretion of the district court.”). In determining the extent of any reduction, a district court is required to consider the § 3553(a) factors and public safety considerations. See U.S. Sentencing Guidelines Manual § 1B1.10 cmt. n. 1(B). Here, after explicitly taking into account § 3553(a) factors including public safety, the district court concluded that 87 months was the appropriate sentence. The court’s considered decision, based on legally appropriate factors, was not an abuse of discretion. *763III. Accordingly, we conclude that the district court did not abuse its discretion in reducing Blaso’s sentence from 100 months to 87 months, rather than to 80 months, and that there are no non-frivolous issues presented on appeal, and we will affirm the judgement of sentence and grant counsel’s motion to withdraw. . In reducing Blaso's original base offense level by four levels for substantial assistance and then imposing a below-Guidelines sentence of 100 months, the district court in effect imposed a sentence that was approximately 40.5% below the lower end of the original Guidelines range. . We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). As noted, we review the district court's decision for an abuse of discretion. See United States v. Mateo, 560 F.3d 152, 154 (3d Cir.2009).	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8473857/	OPINION OF THE COURT FUENTES, Circuit Judge: Appellant Clarence Mitchell was convicted of, inter alia, possession with intent to distribute cocaine and possession of a firearm in furtherance of drug trafficking. Before his trial, he filed a motion to suppress evidence recovered during a search of 3411 North Franklin Place in Wilmington, Delaware, a residence owned by his wife, and the statements that he made to police following the search. Upon review of the affidavit and application for a search warrant, the District Court denied the motion, holding that the detectives acted in good faith in relying on the warrant. At trial, following the close of the government’s evidence, Mitchell moved for a judgment of acquittal on the possession of a firearm in furtherance of drug traffiek764ing count. The District Court reserved judgment, and the jury subsequently returned a guilty verdict. After the verdict, Mitchell renewed his motion for acquittal, which was denied by the District Court. On appeal, Mitchell challenges the denial of his suppression and acquittal motions. For the reasons that follow, we will affirm the District Court.1 I. Because we write primarily for the parties, we only discuss the facts and proceedings to the extent necessary for the resolution of the case. Wilmington Police Department (“WPD”) Detectives Todd Riley and Robert Cunningham conducted a ten-week undercover investigation of appellant Clarence Mitchell. On five separate occasions, an informant made controlled purchases of crack cocaine from Mitchell. Following each purchase, members of WPD covertly tailed Mitchell in an effort to establish his residence. After the first purchase, the officers lost Mitchell. During the second purchase, Mitchell was driving a blue Jeep Cherokee, which was registered to Mitchell’s mother at her residence. The officers conducted surveillance at this residence; Mitchell was never observed there, although another vehicle that he operated, a blue Ford Taurus, was seen at this location. After the second purchase, the officers tailed Mitchell to a bar. After the third controlled purchase, officers followed Mitchell to a barber shop, where he remained for approximately twenty minutes. Mitchell then drove the blue Jeep Cherokee to the residence at 3411 North Franklin Place, where he stayed for approximately twenty minutes before departing. When officers returned to this location two hours later, the blue Jeep Cherokee was parked on the same block as the residence, which was owned by Denise Smiley, Mitchell’s wife.2 During subsequent surveillance at this address, officers observed Mitchell arrive at the residence in the blue Ford Taurus that had been seen at Mitchell’s mother’s residence. Mitchell entered the residence, stayed for a short time, then exited and drove towards center-city Wilmington. Mitchell drove the same Ford Taurus to the fourth controlled purchase. After the purchase, police terminated surveillance of Mitchell when he entered the center-city area. For the fifth controlled purchase, the officers had the informant call Mitchell, order drugs, and arrange a meeting spot. Surveillance officers then observed Mitchell exit a barber shop, drive to 3411 North Franklin Place, enter the residence, remain inside for five minutes, exit the residence, and drive to meet the informant. After the purchase, officers followed Mitchell back to the barber shop. During 765the investigation, officers also conducted surveillance at Mitchell’s last known residence, but at no time during the investigation was Mitchell or any of the vehicles he operated during the controlled purchases observed at this address. After the fifth controlled purchase, Detectives Riley and Cunningham applied for a search warrant for the residence at 3411 North Franklin Place. Based on an affidavit detailing the investigation, a Judge of the Justice of the Peace Court # 20 for the State of Delaware found that the detectives had probable cause to search 3411 North Franklin Place and issued a search warrant. On December 27, 2007, the detectives executed the search warrant and recovered approximately 4.5 ounces of cocaine; drug packing paraphernalia, including three plastic bags with a white powdery residue and small plastic bags commonly used for packaging crack cocaine; approximately $6,415 in cash; and, underneath the mattress, a loaded .357 Sig Sauer firearm. Thereafter, Mitchell was indicted for being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2) (Count 1); possession with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(c) (Count 2); and possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A) and (c)(2) (Count 3). Mitchell filed an Amended Motion to Suppress Evidence and Statements, challenging the search of 3411 North Franklin Place and the admissibility of his subsequent statements to the police. On July 30, 2008, the District Court denied Mitchell’s suppression motion in a Memorandum Order. In ruling on the suppression motion, the District Court did not reach the issue of whether the judicial officer who issued the search warrant had a substantial basis for finding probable cause. Instead, the Court ruled that the good faith exception of United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), applied as “it was objectively reasonable for the detectives to rely on the Justice of the Peace Court’s determination that probable cause existed when they searched 3411 Franklin Place.” (App.18.) The District Court conducted a jury trial on Counts 2 and 3 of the Indictment. After the close of the government’s evidence, Mitchell made a motion for judgment of acquittal on Count 3, the § 924(c) count, pursuant to Federal Rule of Criminal Procedure 29 (“Rule 29”). The Court reserved judgment on the motion. After the jury found Mitchell guilty of Counts 2 and 3, Mitchell renewed his Rule 29 motion, which the District Court denied. The Court then accepted Mitchell’s guilty plea to Count 1. Subsequently, the District Court sentenced Mitchell to 24 months’ imprisonment on Counts 1 and 2, to be served concurrently, and 60 months’ imprisonment on Count 3, to be served consecutively. On appeal, Mitchell challenges the denial of his suppression and Rule 29 motions. With respect to the suppression motion, he argues that the detectives did not have probable cause to search 3411 North Franklin Place and that the Leon good-faith exception was inapplicable. With respect to the Rule 29 motion, he contends that the evidence at trial was insufficient to prove that he knowingly possessed a firearm in furtherance of a drug trafficking crime. II. In an extensive written opinion ruling on Mitchell’s motion to suppress, the District Court carefully and thoroughly considered the contentions that the parties raise in this appeal. After a complete review of the record, including the detectives’ affidavit and application for a search warrant, and the parties’ arguments, we find no 766basis for disturbing the District Court’s ruling. Therefore, we will affirm the denial of Mitchell’s motion to suppress for the reasons set forth by the District Court in its written opinion. See United States v. Mitchell, No. 08-cr-23, 2008 WL 2942142 (D.Del. July 30, 2008). In reviewing the grant or denial of a Rule 29 motion, we exercise plenary review and independently apply the same standard as the district court. Silveus, 542 F.3d at 1002. That standard of review is deferential, “viewing ‘the record in the light most favorable to the prosecution to determine whether any rational trier of fact could have found proof of guilt beyond a reasonable doubt based on the available evidence.’ ” Id. (quoting United States v. Smith, 294 F.3d 473, 476 (3d Cir.2002)) (further citation omitted). “A finding of insufficiency [of the evidence] should ‘be confined to cases where the prosecution’s failure is clear.’ ” Smith, 294 F.3d at 476 (quoting United States v. Leon, 739 F.2d 885, 891 (3d Cir.1984)). When a defendant moves for a judgment of acquittal at the close of the government’s case and the district court reserves decision on the motion, the district court must “determine whether an acquittal was appropriate based solely on the evidence presented by the government.” United States v. Brodie, 403 F.3d 123, 133 (3d Cir.2005) (citing Fed.R.Crim.P. 29(b)). We are “similarly limited” and will “examine only ... the evidence presented in the government’s case, which includes evidence elicited on cross-examination of the government’s witnesses, but not evidence presented in the defense case.” Id. at 133-34 (internal quotation marks & citations omitted). Specifically, we will not consider the testimony of defense witnesses Denise Smiley and Pearl A. Ponzo. The essential elements of knowing possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c) are: (1) the defendant committed the crime of possession with intent to distribute a controlled substance; (2) the defendant knowingly possessed a firearm; and (3) the defendant knowingly possessed the firearm in furtherance of the crime of possession with intent to distribute. United States v. Bobb, 471 F.3d 491, 496 (3d Cir.2006). Mitchell argues that the government’s evidence was insufficient to prove the third element — that he possessed the gun in furtherance of a drug trafficking crime. To establish the third element, “the ‘mere presence’ of a gun is not enough.... [T]he evidence must demonstrate that possession of the firearm advanced or helped forward a drug trafficking crime.” United States v. Sparrow, 371 F.3d 851, 853 (3d Cir.2004) (citations omitted). In making this assessment, we consider the following nonexclusive factors: the type of drug activity that is being conducted, accessibility of the firearm, the type of the weapon, whether the weapon is stolen, the status of the possession (legitimate or illegal), whether the gun is loaded, proximity to drugs or drug profits, and the time and circumstances under which the gun is found. Id. (quoting United States v. Ceballos-Torres, 218 F.3d 409, 414-15 (5th Cir.2000)). The record in the instant case demonstrates that many of the Ceballos-Ton'es factors are satisfied. A Sig Sauer .357 is a semiautomatic handgun, which, according to Detective Cunningham, can be concealed on a person. Mitchell, as a prior felon, could not lawfully possess a firearm. Moreover, at trial the government presented evidence that the firearm was stolen and that Mitchell bought it “on the street.” (Gov’t Ex. 5, Clip 2.) The gun was found, loaded, under the mattress in the bedroom at 3411 North Franklin Place, where it was easily accessible. During the same search, police retrieved approximately $6,415 in 767cash from the house and approximately 4.5 ounces of cocaine from the garage in the rear yard. Mitchell stated that he bought the gun “[b]eeause [he] was kind of scared ... because jokers was shooting jokers. They were running up on the block and robbing people.... They catch the jokers going in their house and robbing them.... ” (App.330.) Based on this evidence, a rational juror could reasonably find that Mitchell possessed the firearm to protect the drugs and drug proceeds located at 3411 North Franklin Place, a type of possession that “furthers, advances, or helps forward” drug trafficking.3 Ceballos-Torres, 218 F.3d at 415. III. For the foregoing reasons, we affirm the District Court’s denial of Mitchell’s motion to suppress and the denial of his Rule 29 motion for judgment of acquittal. . The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. This Court has jurisdiction pursuant to 28 U.S.C. § 1291. "[Wjhen a district court, in reviewing a magistrate's determination of probable cause, bases its probable cause ruling on facts contained in an affidavit, we exercise plenary review over the district court's decision.” United States v. Ritter, 416 F.3d 256, 261 (3d Cir.2005) (citation omitted). Both our court and the district court review the magistrate’s initial probable cause determination deferentially. Id. Our review of a district court's conclusion regarding the applicability of the good faith exception is plenary. United States v. Hodge, 246 F.3d 301, 307 (3d Cir.2001) (citations omitted). "We exercise plenary review over a district court’s grant or denial of a motion for acquittal based on the sufficiency of the evidence, applying the same standard as the district court." United States v. Silveus, 542 F.3d 993, 1002 (3d Cir.2008) (citation omitted). . The record does not indicate that police knew that Smiley and Mitchell were married at the time of their surveillance or of their application for the challenged warrant. . The government also argues that the evidence was sufficient for a rational juror to find that Mitchell brought the firearm with him for protection while he engaged in drug sales. In light of our conclusion that the evidence was sufficient to support a finding that Mitchell possessed the gun to protect his drug and drag proceeds, we see no need to rule on the government’s alternative argument.	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8473859/	OPINION SMITH, Circuit Judge. In July of 2006, a federal grand jury sitting in the Western District of Pennsylvania returned a three count indictment against Derek McClellan. The first and second counts charged McClellan with violations of 21 U.S.C. § § 846 and 841(a)(1) by conspiring to distribute and by possessing with the intent to distribute 500 or more grams of a mixture and substance containing a detectable amount of cocaine. Count three charged McClellan with being a felon in possession of two firearms in violation of 18 U.S.C. § 922(g)(1). McClellan filed a motion to suppress evidence, challenging the validity of authorized wiretaps and seeking a hearing pursuant to Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), to attack the existence of probable cause for the search warrant that had been executed at the home of his girlfriend, Carla Hudson. After the District Court denied McClellan’s motion, he entered a conditional guilty plea to the conspiracy and firearm charges. The District Court sentenced McClellan to, inter alia, 120 months of incarceration on both counts, to be served concurrently. This timely appeal followed. We will affirm the judgment of the District Court.1 McClellan contends that the District Court erred in denying his motion to suppress. He argues that the wiretaps were invalid because the applications neither satisfied the necessity requirement of 18 U.S.C. § 2518(l)(c) and (3)(c), nor established probable cause as required by 18 U.S.C. § 2518(3)(b). In addition, McClellan submits that the wiretap information should be suppressed because the warrant for the wiretaps was based to some extent on evidence obtained from a pen register that was authorized by a judge who lacked jurisdiction. The motion to suppress also challenged whether the affidavit in support of a search warrant for the premises at 808 769Waddell Avenue had sufficient facts to establish probable cause. In United States v. Hendricks, 395 F.3d 173, 180 (3d Cir.2005), we noted that 18 U.S.C. § 2518(3)(e) requires that the application for a wiretap include a “showing of necessity.” This statement must explain “why ‘normal investigative techniques would be of no avail.’ ” Id. at 180 (quoting United States v. Adams, 759 F.2d 1099, 1114 (3d Cir.1985)). We exercise plenary review in determining whether the application contained the requisite statement of necessity. United States v. Phillips, 959 F.2d 1187, 1189 (3d Cir.1992). Once it is determined that the statement of necessity was contained in the application, we “review the court’s determination of necessity for an abuse of discretion.” Id. After reviewing the applications, we conclude that they contained the factual predicate sufficient to inform the judge why other methods of investigation were inadequate. United States v. McGlory, 968 F.2d 309, 345 (3d Cir.1992). We find no abuse of discretion in determining that the wiretaps were warranted in light of the affidavit’s explanation that certain investigative methods had failed or were unlikely to succeed because of, inter alia, fears of violence and retribution. Phillips, 959 F.2d at 1190 (finding no abuse in grant of application for wiretap where the “use of an undercover agent would have been too dangerous due to the close association of the conspiracy’s members and because the area was a small community where everyone was acquainted and outsiders would have been immediately suspect”). McClellan also contends that the applications for the wiretaps were insufficient to establish probable cause. See 18 U.S.C. § 2518(3)(b) (directing that the court must determine that “there is probable cause for belief that particular communications concerning that offense will be obtained through such interception”). We exercise plenary review over a district court’s decision that “bases its probable cause ruling on facts contained in an affidavit.” United States v. Conley, 4 F.3d 1200, 1204 (3d Cir.1993). Our review of the initial probable cause determination, however, is deferential as we scrutinize the affidavit to determine if “there is a substantial basis for a fair probability” that the wiretaps would obtain communications regarding illegal drug transactions. Id. at 1205. Here, the applications and the affidavits provided a sufficient factual basis to conclude that the wiretaps satisfied this standard. Some of the factual content in the affidavit was obtained from two pen registers: one issued by the Westmoreland County Court of Common Pleas and the second issued by the Allegheny County Court of Common Pleas. McClellan argued before the District Court that the Westmoreland County Court of Common Pleas lacked jurisdiction to authorize the pen register for Carla Hudson, the subscriber of the cellular telephone, because she resided in Allegheny County. He relied on the fact that 18 Pa. Cons.Stat. § 5773(a) provides that the “court shall enter an ex parte order authorizing the installation and use of a pen register ... device within the jurisdiction of the court....” The District Court rejected this argument, citing Commonwealth v. McPhail, 547 Pa. 519, 692 A.2d 139 (1997) (plurality), which reasoned that “the subject matter jurisdiction of the courts of common pleas is not limited to the territory of the county wherein the court sits; rather, it is statewide.” Commonwealth v. Bethea, 574 Pa. 100, 828 A.2d 1066, 1073 (2003) (discussing McPhaiVs plurality opinion). McClellan argues that the District Court erred because plurality opinions do not have precedential value and because any persuasiveness McPhail possessed was eroded by the Pennsylvania 770Supreme Court’s decision in Commonwealth v. Fithian, 599 Pa. 180, 961 A.2d 66 (2008). Although the government does not believe the District Court erred, it cites the testimony of one of its agents, who explained that the real time data from the wiretap was received at a facility located in Westmoreland County. McClellan is correct that MePhail lacks precedential value in light of its status as a plurality opinion. Bethea, 828 A.2d at 1073. Nonetheless, a majority of the Pennsylvania Supreme Court in Bethea held that “all courts of common pleas have statewide subject matter jurisdiction in cases arising under the Crimes Code.” Id. at 1074. Accordingly, in the event the receipt of real time data at the communications facility in Westmoreland County was insufficient to establish jurisdiction, Bethea compels the conclusion that the Westmoreland County Court of Common Pleas had the requisite jurisdiction to authorize the pen register for the cellular telephone subscribed to by Carla Hudson. McClellan also contends that the affidavit in support of the search warrant for the residence at 808 Waddell Avenue contained false and misleading statements that must be set aside pursuant to Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), and that without these statements probable cause for the search was lacking. We have carefully reviewed the affidavit in support of the search warrant, as well as the transcript of the Franks portion of the suppression hearing. We conclude that McClellan failed to establish that the affiant for the search warrant either knowingly and deliberately included a false statement in the affidavit, or made a statement with reckless disregard for its truth. The statements may have been incomplete, but they were not misleading in light of all of the circumstances alleged in the affidavit. Because the facts set forth in the affidavit presented a substantial basis for believing that evidence of illegal drug transactions would be found at the premises, the District Court did not err by denying the motion to suppress the evidence seized pursuant to the execution of the search warrant.2 . The District Court had jurisdiction under 18 U.S.C. § 3231. We exercise jurisdiction pursuantto 28 U.S.C. § 1291. . McClellan correctly notes in his brief that if we uphold the electronic surveillance and the search warrant, his contention that the warrantless forcible entry of the premises at 808 Waddell Avenue lacks merit under Segura v. United States, 468 U.S. 796, 810, 104 S.Ct. 3380, 82 L.Ed.2d 599 (1984).	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8473861/	OPINION OF THE COURT HARDIMAN, Circuit Judge. Daryl Mills appeals the District Court’s grant of summary judgment in favor of the City of Harrisburg (City) and officers of the Harrisburg Police Department on his federal civil rights and pendent state law claims. We will affirm, largely for the reasons outlined in the District Court’s thorough and cogent memorandum opinion. I. Because we write for the parties, we recount only those facts necessary to our decision. On the evening of April 30, 2004, Officer Annemarie Bair, Investigator Stephen Blasko, and several other members of the Harrisburg Police Department were conducting an undercover prostitution “sting” near several bars in Harrisburg, Pennsylvania. The operation required Bair to pose as a female prostitute and wear a hidden microphone which enabled 772Blasko, who was positioned nearby in a surveillance vehicle, to monitor her conversations with potential customers. From his location, Blasko could maintain visual contact with Bair. Midway through her shift, Bair encountered Mills and his friend Phillip Brooks as they left a local bar and engaged them in a seven-minute conversation. Initially, Bair told the men that she was trying to “mak[e] some money.” Mills responded: “how much you trying to work?” After learning that Mills had only seventeen dollars with him, Bair offered to perform oral sex on Mills for fifteen dollars. Mills— who had not yet expressly requested sexual services from Bair — declined this offer. Despite Mills’s initial refusal, negotiations among the three continued, and both men subsequently arranged a deal whereby Mills and Brooks would pay Bair twenty-five dollars. In return, Bair agreed to perform oral sex on Mills while Brooks simultaneously performed oral sex on Bair. Mills confirmed this arrangement with Bair, stating: ‘You’re going to give me head and he’s going to give you head.” When Brooks told Bair, “I’m gonna pay you,” Mills interjected, “Right. And I’m going to pay you — while I’m paying you and he’s going to pay you.” Throughout their discussion with Bair, both Mills and Brooks openly discussed the exchange of money for various sexual services. During the conversation, the microphone worn by Bair allowed Blasko and other Harrisburg police officers to monitor the situation from a nearby vehicle. Though Blasko could not determine which specific statements were attributable to which man, Bair’s microphone did permit Blasko to hear two distinct male voices agree to exchange various sex acts for payment throughout the conversation. Additionally, Blasko was able to observe Bair speaking with the two men. At the conclusion of the negotiations, Blasko approached the group and placed both Mills and Brooks under arrest for patronizing a prostitute. See 18 Pa. Cons.Stat. § 5902(e). The charges against both Mills and Brooks were subsequently dismissed by the district attorney following a preliminary hearing. Mills then filed suit pursuant to 42 U.S.C. § 1983, claiming that Bair, Blasko, and the City of Harrisburg violated his constitutional rights by unlawfully arresting and falsely imprisoning him. Mills further alleged the existence of a civil conspiracy to deprive him of his civil rights in violation of 42 U.S.C. § 1985(3) and also brought several related state law claims. Following discovery, the defendants moved for summary judgment, which the District Court granted. Mills now appeals and we have jurisdiction pursuant to 28 U.S.C. § 1291. II. We exercise de novo review over the District Court’s grant of summary judgment and view the facts in the light most favorable to the nonmoving party. Kopec v. Tate, 361 F.3d 772, 775 (3d Cir.2004). A. The District Court’s grant of summary judgment was based largely on a determination that no Fourth Amendment violation occurred because Mills’s arrest was supported by probable cause. The principal argument now raised by Mills on appeal is that the officers lacked probable cause to arrest him because Blasko had no way to determine which man made which statements to Bair prior to Mills’s arrest. This argument might be persuasive if only one of the two men had propositioned Bair. Unfortunately for Mills, Officer Blasko heard two distinct male voices actively negotiating the exchange of money for a sexual act that involved participation 773by both men.1 Blasko also was able to confirm visually that Bah* was, in fact, speaking with two men. Accordingly, it is immaterial that Blasko could not identify which man made which specific statements at the time of arrest because he had probable cause to believe that both were actively involved in soliciting sex from Bair. For that reason, the District Court correctly granted summary judgment on Mills’s Fourth Amendment claim because the arrest of both Mills and Brooks was supported by probable cause. B. Mills next contends that the District Court erred in dismissing his claims under 42 U.S.C. § 1983 alleging violations of his First, Fifth, and Fourteenth Amendment rights. As to his First Amendment claim, the record does not indicate that he was pursuing any activity protected thereunder at the time of his arrest. See Roberts v. United States Jaycees, 468 U.S. 609, 619-20, 622, 104 S.Ct. 3244, 82 L.Ed.2d 462 (1984) (outlining activities typically protected by the First Amendment). As for his Fourteenth Amendment claim, it is true that the absence of a Fourth Amendment violation is not necessarily fatal to Mills’s equal protection claim if he can show that he was targeted by the defendants on the basis of his race. Bradley v. United States, 299 F.3d 197, 205 (3d Cir.2002). Mills, however, cites no evidence that could support a finding that the defendants’ actions in this case either had a discriminatory effect or were motivated by a discriminatory purpose. See id. (requiring plaintiff making “an equal protection claim in the profiling context” to demonstrate that the actions of law enforcement “(1) had a discriminatory effect and (2) were motivated by a discriminatory purpose.”). His vague, unsupported assertion that the Harrisburg Police Department “targeted a black community as a matter of policy” cannot, without more, establish a violation of the Fourteenth Amendment’s guarantee of equal protection. Olympic Junior, Inc. v. David Crystal, Inc., 463 F.2d 1141, 1146 (3d Cir.1972) (noting that “Conclusory statements ... and factual allegations not based on personal knowledge” are “insufficient to avoid summary judgment.”). Accordingly, we find no error in the District Court’s grant of summary judgment on Mills’s equal protection claim.2 C. Mills next contends that the District Court erred in granting summary judgment on his claims against Blasko and Bair under 42 U.S.C. § 1985(3), which imposes civil liability on individuals who conspire to deprive “any person ... of the equal protection of the laws, or of equal *774privileges and immunities under the laws.” 42 U.S.C. § 1985(3). To establish liability under § 1985(3), Mills was required to demonstrate that “some racial, or perhaps otherwise class-based, invidiously discriminatory animus [motivated] the conspirators’ action.” Griffin v. Breckenridge, 403 U.S. 88, 102, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1971). As the District Court correctly observed, however, the record in this case is devoid of any indication that Blasko or Bair acted with discriminatory intent or otherwise targeted Mills and Brooks because of their race. Mills’s conclusory allegation that Blasko and Bair conspired to “falsely arrest and convict black men without regard to the existence of probable cause” cannot withstand a motion for summary judgment. See D.R. v. Middle Bucks Area Vocational Tech. Sch., 972 F.2d 1364, 1377 (3d Cir.1992) (citing Robinson v. McCorkle, 462 F.2d 111, 113 (3d Cir.1972)). Further, to recover under § 1985(3), Mills was also required to demonstrate that he was “injured in his person or property or deprived of any right or privilege of a citizen of the United States” as a result of the officers’ alleged conspiracy. Farber v. City of Paterson, 440 F.3d 131, 134 (3d Cir.2006). As discussed previously, Mills suffered no injury to his constitutional rights. See Part II.A-B, supra. Accordingly, the District Court did not err in granting summary judgment on Mills’s claims under § 1985(3). D. Finally, Mills seeks reversal of the District Court’s grant of summary judgment on his several pendent state law claims. Because Mills’s arrest was supported by probable cause, however, his claims for false arrest, false imprisonment, and malicious prosecution cannot survive under Pennsylvania law. See Renk v. City of Pittsburgh, 537 Pa. 68, 641 A.2d 289, 293 (1994) (recognizing that an arrest based on probable cause cannot be the basis of a claim for false arrest/imprisonment); Lippay v. Christos, 996 F.2d 1490, 1502 (3d Cir.1993) (noting that elements of malicious prosecution under Pennsylvania law require a plaintiff to show that legal proceedings were instituted without probable cause). Mills’s claims for assault and battery must likewise fail because the existence of probable cause privileged both Blasko and Bair to use reasonable force to arrest Mills. Groman v. Township of Manalapan, 47 F.3d 628, 634 (3d Cir.1995); Renk, 641 A.2d at 293-94 (recognizing that police officers may use reasonable force to make a lawful arrest). And finally, nothing about the conduct of either Blasko or Bair in the present case could be characterized as sufficiently “extreme and outrageous” to support a claim for intentional infliction of emotional distress under Pennsylvania law. See Hoy v. Angelone, 554 Pa. 134, 720 A.2d 745, 754 (1998) (noting that the “conduct must be so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized society.”) (internal quotations omitted).3 Accordingly, the District Court properly granted summary judgment on Mills’s pendent state law claims. III. For the foregoing reasons, we will affirm the judgment of the District Court. . Our determination that Mills's arrest was supported by probable cause is based in no part on the subsequent identification of Mills’s voice on the recording by his wife because Officer Blasko was not privy to such information when he decided to make the arrest. . Mills also asks us to reverse the District Court's dismissal of his claim against the City of Harrisburg under § 1983. A municipality may be held liable under § 1983 for the actions of its employees and agents only when "the execution of [the municipality's] policy or custom ... inflicts the injury." Monell v. Dept. of Soc. Servs. of the City of New York, 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Absent an underlying constitutional violation by an agent of the municipality, however, the municipality itself may not be held liable under § 1983. Grazier ex rel. White v. City of Philadelphia, 328 F.3d 120, 124 (3d Cir.2003). Because Mills suffered no violation of his constitutional rights, see Part II.A — B, supra, the District Court did not err in granting summary judgment on Mills's derivative § 1983 claims against the City. See Sanford v. Stiles, 456 F.3d 298, 314 (3d Cir.2006). . We also note that the Pennsylvania Supreme Court observed in Taylor v. Albert Einstein Medical Center, 562 Pa. 176, 754 A.2d 650 (2000), that it had "never expressly recognized a cause of action for intentional infliction of emotional distress.” Id. at 652.	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8473863/	OPINION SMITH, Circuit Judge. In this Chapter 11 reorganization case about a 1993 indenture (the “Indenture”), Law Debenture Trust Company of New York (“LDTC”), the indenture trustee under the Indenture, challenges the subordination of a guarantee made in the Indenture (the “1993 Guarantee”) to later guarantees (the “1994 and 1996 Guarantees”) that it believes were improperly designated as “Senior Indebtedness” under the Indenture. Opposing LDTC are the indenture trustees and noteholders for the notes that were the subject of the 1994 and 1996 Guarantees (collectively, the “1994 and 1996 Noteholders”). LDTC raises two issues on appeal.1 First, it claims that the District Court erred in affirming the Bankruptcy Court’s conclusion that the 1994 and 1996 Guarantees could be designated as Senior Indebtedness under the Indenture. Second, it argues that the District Court erred by permitting the Bankruptcy Court’s consideration of extrinsic evidence when construing the Indenture. Our conclusion on the first issue disposes of this appeal and obviates the need for discussion of extrinsic evidence. We will affirm the District Court’s conclusion that the Indenture permitted the designations of the 1994 and 1996 Guarantees as Senior Indebtedness. As such, the 1993 Guarantee is subordinated to the 1994 and 1996 Guarantees. I. In 1993, Kaiser Aluminum & Chemical Corporation (“KACC”) issued $400 million in notes (the “1993 Notes”) under the Indenture. These notes were guaranteed, in the 1993 Guarantee, by KACC’s subsidiaries: Kaiser Aluminum Australia, Alpart Jamaica, and Kaiser Jamaica (the “Subsidiary Guarantors”). In 1994 and 1996, KACC issued additional notes (the “1994 and 1996 Notes”) in the amounts of $225 million and $175 million, respectively. Like the 1993 Notes, the 1994 and 1996 Notes were guaranteed, in the 1994 and 1996 Guarantees, by the Subsidiary Guarantors. In 2002, KACC and each of the Subsidiary Guarantors filed Chapter 11 reorganization petitions. LDTC moved the Bankruptcy Court to determine the relative priority of the 1993 Guarantee vis-á-vis the 1994 and 1996 Guarantees, and the parties agreed to convert the motion into an objection to the proposed Chapter 11 reorganization plan offered by KACC and the Subsidiary Guarantors. Both parties agree that the Indenture controls the relative priority of the 1993, 1994, and 1996 Guarantees. LDTC asserts that the 1994 and 1996 Guarantees cannot be designated as Senior Indebtedness under the Indenture and, therefore, the 1993 Guarantee is not subordinated to the 1994 and 1996 Guarantees. The 1994 and 1996 Noteholders, on the other hand, claim that the 1994 and 1996 Guarantees qualify as Senior Indebtedness under the Indenture and therefore have priority over the 1993 Guarantee. 777The Bankruptcy Court, in concluding that the 1994 and 1996 Guarantees were properly designated as Senior Indebtedness under the Indenture, noted that “it [was] abundantly clear that the [pari passu treatment of the 1993, 1994, and 1996 Guarantees] suggested by LDTC was not created by the Indenture.” Accordingly, the Bankruptcy Court overruled LDTC’s objection to the proposed Chapter 11 reorganization plan. LDTC appealed to the District Court, which affirmed the Bankruptcy Court’s order. LDTC now appeals to this Court. II. LDTC’s first argument, that the 1994 and 1996 Guarantees could not be designated as Senior Indebtedness under the Indenture, is based on its rejection of the Bankruptcy Court’s construction of the Indenture. We review that construction de novo. STV Eng’rs, Inc. v. Greiner Eng’g, Inc., 861 F.2d 784, 787 (3d Cir.1988). As described below, we conclude that when a Subsidiary Guarantor attempts reorganization, Article 16 of the Indenture subordinates guarantees that are not Senior Indebtedness to all Senior Indebtedness of that Subsidiary Guarantor. We also conclude that the definition of Senior Indebtedness, contained in Article 1 of the Indenture, permitted KACC to designate the 1994 and 1996 Guarantees as Senior Indebtedness and that it properly did so. A. Article 16 of the Indenture Subordinates all of a S'libsidiary Guarantor’s Guarantees that are not Senior Indebtedness to all Senior Indebtedness. Section 16.02 of the Indenture subordinates each Subsidiary Guarantor’s obligations under the 1993 Guarantee to the Senior Indebtedness of that Subsidiary Guarantor. It states that “all payments pursuant to the [1993] Guarantee by [any] Subsidiary Guarantor are hereby expressly subordinated ... in right of payment to the prior payment in full ... of all Senior Indebtedness of [that] Subsidiary Guarantor.” In the event of a Subsidiary Guarantor’s reorganization, Section 16.03 provides “the holders of all Senior Indebtedness of [the] Subsidiary Guarantor [the right] to receive payment in full ... before the holders of the [1993] Notes or the Trustee on behalf of the noteholders shall be entitled to receive, pursuant to the [1993] Guarantee, any direct or indirect payment or distribution on or with respect to the [1993] Notes.” In other words, if a Subsidiary Guarantor is reorganizing, it must pay the holders of its Senior Indebtedness in full prior to any payment it is obligated to make under the 1993 Guarantee. Because the Subsidiary Guarantors are reorganizing, Section 16.03 applies and the holders of their Senior Indebtedness are entitled to payment prior to any payment under the 1993 Guarantee. B. The Definition of Senior Indebtedness Permitted the 1991 and 1996 Guarantees to be Designated as Senior Indebtedness. To designate a certain indebtedness as Senior Indebtedness, KACC must provide notice of the designation in writing and the type of indebtedness must fall under one of the categories described in the definition of Senior Indebtedness, which is located in Section 1.01 of the Indenture. It is undisputed that KACC provided proper notice for the 1994 and 1996 Guarantees. Accordingly, the crux of this appeal rests on whether the Indenture permits the 1994 and 1996 Guarantees, guarantees made by the Subsidiary Guarantors for KACC’s 1994 and 1996 Notes, to be designated as Senior Indebtedness. The 1994 and 1996 Noteholders argue that clauses (ii)(A)(l) and (ii)(D) of the 778definition of Senior Indebtedness permitted designation of those guarantees as Senior Indebtedness. We agree. Clause (ii)(A)(l), as applied to each Subsidiary Guarantor, states that “the principal of, premium, if any, and interest on all indebtedness of [the Subsidiary Guarantor] for money borrowed (including all such indebtedness evidenced by notes, debentures or other securities issued for money, whether issued or assumed by [the Subsidiary Guarantor])” may be designated as Senior Indebtedness by KACC. A guarantee involves an “agreefment] to answer for a debt or default.” Black’s Law Dictionary 773 (9th ed.2009). Such agreements are “[a] promise to answer for the payment of some debt ... in case of the failure of another who is liable in the first instance.” Id. (defining “guaranty”). The Subsidiary Guarantors assumed indebtedness, the promise to answer for KACC’s debts in case of its failure to repay money borrowed, by guaranteeing the 1994 and 1996 Notes. LDTC argues that such an understanding of the Indenture would render clause (ii)(A)(5) of the definition of Senior Indebtedness superfluous. That clause states that “all guarantees by [the Subsidiary Guarantor] of any indebtedness referred to in ... clause (ii)(A) of any Subsidiary of [the Subsidiary Guarantor]” may be designated as Senior Indebtedness if proper notice is issued by KACC. LDTC properly notes that clause (ii)(A)(5) only covers a Subsidiary Guarantor’s guarantees of its own subsidiaries.2 If clause (ii)(A)(l) covers all guarantees, then, according to LDTC, clause (ii)(A)(5) would serve no purpose because it covers a subset of all guarantees. To avoid rendering clause (ii)(A)(5) superfluous, LDTC asserts, clause (ii)(A)(I) must be construed to exclude guarantees. We disagree with LDTC’s argument. Clause (ii)(A)(l) is narrower than clause (ii)(A)(5), because the former is limited to indebtedness for money borrowed, whereas the latter includes all guarantees, for any purpose, made by a Subsidiary Guarantor for its own subsidiaries. For example, clause (ii)(A)(5) would include a Subsidiary Guarantor’s guarantee of a subsidiary’s lease obligations, while clause (ii)(A)(l) would not. Some overlap in the two clauses is not fatal, especially in light of the other overlapping provisions in the definition of Senior Indebtedness.3 LDTC also argues that we must presume that the Indenture intended to exclude a Subsidiary Guarantor’s guarantee of a parent company because clause (ii)(A)(5) only covers a Subsidiary Guarantor’s guarantee of a subsidiary. LDTC’s 779argument runs contrary to the structure of the Indenture. Clauses (a) through (e) of the definition of Senior Indebtedness exclude specific categories of indebtedness from being designated as Senior Indebtedness. Guarantees of a parent company are not categorically excluded in those clauses. The mere presence of the exclusion clauses negates LDTC’s argument that the Indenture was intended to implicitly exclude guarantees of a parent company. If the Indenture was intended to exclude such guarantees, the exclusion could have been listed with the other exclusion clauses. In short, we will not presume an implicit exclusion of guarantees of a parent company where the Indenture has exclusion clauses. Finally, LDTC argues that clause (ii)(A)(l) covers only money borrowed by each Subsidiary Guarantor. LDTC would have us include additional terms in clause (ii)(A)(l) so that it reads as follows: “all indebtedness of such Person for money borrowed [by such Person ].” This Court, however, is prohibited from adding terms to the Indenture. W.W.W. Assocs. v. Giancontieri, 77 N.Y.2d 157, 565 N.Y.S.2d 440, 566 N.E.2d 639, 642 (1990) (“[W]hen parties set down their agreement in a clear, complete document, their writing should as a rule be enforced according to its terms.”)4. “Indebtedness for money borrowed,” including “notes ... whether issued or assumed,” may be designated as Senior Indebtedness. The Subsidiary Guarantors’ assumptions of indebtedness for money borrowed by KACC through the 1994 and 1996 Guarantees, therefore, is covered under clause (ii)(A)(l). The designations of the 1994 and 1996 Guarantees as Senior Indebtedness were also proper under clause (ii)(D). That clause, as applied to each Subsidiary Guarantor, states that “all penalties, fees, premiums, expenses, reimbursements, indemnity obligations and all other monetary obligations of [the Subsidiary Guarantor] in respect of any Indebtedness, obligation, or guarantee described [anywhere in clause (ii) of the definition of Senior Indebtedness]” may be designated as Senior Indebtedness by KACC. LDTC concedes that the 1994 and 1996 Notes are Senior Indebtedness under the Indenture. The 1994 and 1996 Guarantees were monetary obligations undertaken by the Subsidiary Guarantors in respect of the 1994 and 1996 Notes issued by KACC. Therefore, the 1994 and 1996 Guarantees may properly be designated as Senior Indebtedness under clause (ii)(D). LDTC argues that the monetary obligations incurred by each Subsidiary Guarantor must be in respect of its own “Indebtedness, obligation, or guarantee” that could otherwise be properly designated as Senior Indebtedness. LDTC’s construction of clause (ii)(D) cannot be reconciled with the text. See W.W.W. Assocs., 565 N.Y.S.2d 440, 566 N.E.2d at 642. Clause (ii)(D) states that each Subsidiary Guarantor’s monetary obligation may arise from “any Indebtedness, obligation or guarantee,” that would otherwise qualify as Senior Indebtedness under clause (ii). This includes KACC’s 1994 and 1996 Notes and any other “Indebtedness, obligation, or guarantee” of any entity that would otherwise qualify as Senior Indebtedness under clause (ii) of the Indenture, not just the Subsidiary Guarantor’s “Indebtedness, obligations and guarantees.” III. LDTC also argues that the Bankruptcy Court’s evaluation of extrinsic evidence was improper under New York law. Because the Indenture is unambiguous, we resolve this appeal on the construction of 780the Indenture alone and need not discuss extrinsic evidence. IV. The Indenture’s definition of Senior Indebtedness permitted designation of the 1994 and 1996 Guarantees as Senior Indebtedness. Because the Indenture’s language is unambiguous, this Court need not address whether the extrinsic evidence was properly admitted. Accordingly, we will affirm the District Court’s judgment. . This Court has jurisdiction under 28 U.S.C. § 158(d) and 28 U.S.C. § 1291. . KACC cannot designate the 1994 and 1996 Guarantees as Senior Indebtedness under clause (ii)(A)(5) because it is the parent company of the Subsidiary Guarantors. . Clauses (ii)(A)(l), (ii)(A)(5), and (ii)(A)(7) are illustrative. Clause (ii)(A)(7) covers “all obligations of [a Subsidiary Guarantor] in connection with the issuance of industrial revenue bonds.” Assuming, hypothetically, that a subsidiary of a Subsidiary Guarantor issued industrial revenue bonds, that proper written notice was provided, and that the Subsidiary Guarantor guaranteed those industrial revenue bonds, clauses (ii)(A)(l), (ii)(A)(5), and (ii)(A)(7) would all permit the guarantee to be designated as Senior Indebtedness. Clause (ii)(A)(l) would apply because the indebtedness incurred was for money borrowed, (ii)(A)(5) would apply because it was a guarantee of a subsidiary by a Subsidiaiy Guarantor, and (ii)(A)(7) would apply because it was an “obligation” incurred by the Subsidiary Guarantor in connection with the issuance of industrial revenue bonds. Clause (ii)(D) also shows the Indenture’s tolerance of superfluous drafting — it contains overlap even within itself. It uses the phrase "Indebtedness, obligation or guarantee” yet the definition of "Indebtedness” in Section 1.01 of the 1993 Indenture includes at least some obligations and all guarantees. . Section 15.04 of the Indenture states that the Indenture is governed by New York law.	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8473865/	OPINION SMITH, Circuit Judge. In this appeal, Ray Hunter Sutton, Jr., an individual who waived indictment and pleaded guilty to a single count of possession and attempted possession of material depicting the sexual exploitation of a minor, 18 U.S.C. §§ 2252(a)(4)(B) and 2252(b)(2), appeals his sentence of 105 months. Sutton claims that his sentence suffers from procedural and substantive deficiencies that require re-sentencing. This Court has jurisdiction over Sutton’s appeal under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). Sutton raises three challenges to his sentence. First, he claims that the sentence was procedurally flawed because the District Court did not address his request for a downward variance. Second, Sutton argues that United States Sentencing Guidelines § 2G2.2 disproportionately elevated his sentencing guideline range. Third, Sutton argues that the 105 month sentence was greater than necessary and a variance was needed to achieve a reasonable sentence. We reject each of these arguments and will affirm the District Court’s judgment. A district court’s sentencing decision is reviewed for an abuse of discretion. Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007); United States v. Tomko, 562 F.3d 558, 567 (3d Cir.2009). Appellate review proceeds in two stages. First, this Court “ ‘ensur[es] that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence — including an explanation for any deviation from the Guidelines range.’ ” Tomko, 562 F.3d at 567. (quoting Gall, 128 S.Ct. at 597). “We do not presume that a district court considered the factors solely because the sentence falls within the Guidelines range.” Id. At stage two, we examine the substantive reasonableness of the sentence imposed. Id. In doing so, this Court considers “the totality of the circumstances,” and does not “presume that a sentence is unreasonable simply because it falls outside the advisory Guidelines range.” Id. (citing Gall, 128 S.Ct. at 597). “At both stages of our review, the party challenging the sentence has the burden of demonstrating unreasonableness.” Id. “[Ajbsent any significant procedural error, we must ‘give due deference to the district court’s determination that the § 3553(a) factors, on a whole,’ justify the sentence.” Id. at 568 (quoting Gall, 128 S.Ct. at 597). “In other words, if the ... 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.” Id. I. On February 10, 2008, a Pennsylvania State Police trooper conducted an undercover Internet investigation utilizing a peer-to-peer file sharing network known as Gnutella. Gnutella permits a user to search for and download files contained on other Gnutella network users’ computers. The trooper searched the Gnutella network for child pornography and found at least five such images1 on a computer that 782was later determined, through tracing the Internet Protocol address, to be owned by-Sutton. On April 25, 2008, FBI agents and Pennsylvania State Police executed a search of Sutton’s home and seized two laptops and an external USB drive. Later examination of those devices revealed that Sutton possessed multiple images of child pornography and at least 37 videos of child pornography. On June 27, 2008, a federal information was filed charging Sutton with a single count of possession and attempted possession of material depicting the sexual exploitation of a minor, in violation of 18 U.S.C. §§ 2252(a)(4)(B) and 2252(b)(2) on various dates from in or around January 2008 to in or around April 2008. On July 31, 2008, Sutton appeared before the District Court, waived indictment by a grand jury, and entered a guilty plea. Sutton’s sentencing hearing was held on December 2, 2008. At the outset of the hearing, the District Court noted that it had reviewed Sutton’s psychological evaluation and a letter from his former mother-in-law supporting a lenient sentence. The District Court then asked Sutton if there were any other documents that should be reviewed. Sutton produced a letter from his ex-wife that he had received the day before the sentencing hearing. After Sutton produced the letter, the District Court permitted Sutton’s counsel to “make some references to ... things that [he thought were] pertinent for the court’s consideration” in sentencing. Sutton’s counsel then highlighted numerous aspects of Sutton’s psychological evaluation, including: • Sutton’s desire to curtail his unhealthy sexual practices and his guilt and remorse for his crime; • Sutton’s alcoholism and its effect on his judgment; • Sutton’s only “moderate risk for re-offending” without therapeutic intervention; and, • The belief that therapy would help rehabilitate Sutton. Sutton’s counsel also mentioned the importance of reviewing the personal letters written in support of Sutton and considering Sutton’s sexual abuse as a child when sentencing him. After reviewing the psychological evaluation, the personal letters, and Sutton’s sexual abuse as a child, Sutton’s counsel argued that U.S.S.G. § 2G2.2 disproportionately elevated Sutton’s sentence. Sutton’s counsel challenged the five-level increase for the number of depictions of child pornography. He argued that the number of depictions of child pornography possessed by the offender has no correlation to “how horrendous a specific offense would be or how likely or unlikely an individual is to re-offend in the future” and that U.S.S.G. § 2G2.2 lacked any “scientific or empirical basis.” Sutton’s counsel also challenged the four-level increase for sadomasochistic depictions based on the same alleged lack of empirical or scientific data. In response to the number-of-depictions challenge, the Government argued that “it’s just a common sense proposition that if a defendant has 2,000 images, he obviously has a keener interest in child pornography than the defendant that has 200 images.” The Government, in addressing 783the challenge to the four-level increase for sadomasochistic depictions, stated that the “types of images which ... Sutton ha[d] reflected] greater harm on a child than images that an individual could have which don’t depict those types of things.” The Government also noted, among other things, Sutton’s prior conviction for indecent assault against a 10-year-old child and his ability to hide his interest in child pornography from the people who knew him best. At that point, the District Court took a short recess, reviewed the letter from Sutton’s ex-wife and then proceeded to address the § 3553(a) sentencing factors. After doing so, the District Court sentenced Sutton to 105 months in prison and fifteen years of supervised release. Sutton now appeals his sentence. II. A. The District Court properly considered Sutton’s requests for a variance. Sutton asserts that the District Court failed to address his request for a variance based on his psychological evaluation, the personal letters written in support of him, and prior sexual abuse he suffered as a child. Sutton also claims that the District Court failed to address his arguments challenging the Sentencing Guidelines’ five-level increase for the number of images and four-level increase for possession of sadomasochistic depictions of child pornography. The record indicates otherwise. The District Court specifically considered the psychological evaluation, the personal letters written in support of Sutton, and the sexual abuse Sutton suffered as a child, in fashioning the sentence. The challenges to the Sentencing Guidelines raised by Sutton were also considered and rejected. Beyond these considerations, the District Court noted Sutton’s steady employment, the need to protect the public, the need to impose a sentence with sufficient deterrent value, and the need to treat similarly situated defendants in a similar fashion. As a whole, the District Court most certainly “adequately explain[ed] the chosen sentence.” See Gall, 128 S.Ct. at 597. B. United States Sentencing Guidelines Section 2G2.2 did not disproportionately elevate Sutton’s sentencing guideline range. Sutton, citing Kimbrough v. United States, 552 U.S. 85, 128 S.Ct. 558, 564, 169 L.Ed.2d 481 (2007), argues that U.S.S.G. § 2G2.2 disproportionately elevated his sentencing guideline range. Sutton’s argument is unavailing. First, the Supreme Court’s holding in Kimbrough pertains only to the crack/powder disparity in the Sentencing Guidelines for cocaine. Kimbrough, 128 S.Ct. at 575-76; Spears v. United States, — U.S. —, —, 129 S.Ct. 840, 843, 172 L.Ed.2d 596 (2009) (per curiam) (“[T]he point of Kimbrough [was] the recognition of district courts’ authority to vary from the crack cocaine Guidelines based on a policy disagreement with them.”). Second, even assuming, hypothetically, that the Kimbrough decision pertained to U.S.S.G. § 2G2.2, Sutton’s sentence would not run contrary to the holding of Kimbrough since the District Court neither expressed a policy disagreement with the Sentencing Guidelines nor attempted to give Sutton a below-Guidelines sentence. Indeed, the opposite is true. See Kimbrough, 128 S.Ct. at 575-76. The District Court explicitly agreed with the Sentencing Guidelines and gave Sutton a within-Guidelines sentence.2 784 C. Sutton’s sentence was substantively reasonable. Sutton also argues that his sentence was substantively unreasonable. Citing his cooperation with authorities, his psychological evaluation, his interest in seeking therapy, and the sexual abuse he suffered as a child, Sutton claims that a downward variance was required to achieve a reasonable sentence. Given that this Court conducts substantive review of the District Court’s sentencing decision by viewing the “totality of the circumstances,” Tomko, 562 F.3d at 567 (citing Gall, 128 S.Ct. at 597), and will affirm “unless no reasonable sentencing court would have imposed the same sentence on that particular defendant for the reasons the district court provided,” id. at 568, this Court concludes that the District Court’s sentence was substantively reasonable. The District Court considered a variety of circumstances surrounding Sutton’s crime, including all of the issues raised by Sutton in this appeal, in fashioning his sentence. It cited: the seriousness of the crime; the significant number of images and the nature of those images; the sexual abuse Sutton suffered as a child; the personal letters written in support of Sutton; Sutton’s employment; Sutton’s prior conviction for indecent assault; the goal of imposing a sentence that is sufficient but not greater than necessary; the psychological evaluation; the need to treat similarly-situated defendants the same; and Sutton’s rehabilitative potential. Having reviewed all that information, the District Court reached its decision to sentence Sutton to 105 months in prison. As a whole, the record reflects a “rational and meaningful consideration of the factors enumerated in 18 U.S.C. § 3553(a).” See Tomko, 562 F.3d at 568 (quoting United States v. Grier, 475 F.3d 556, 571 (3d Cir.2007) (en banc)). Accordingly, this Court rejects Sutton’s argument that his sentence was substantively unreasonable. III. Because the District Court acted properly within its discretion in sentencing Sutton to 105 months in prison, and because Sutton’s requests for a downward variance were considered, we will affirm the District Court’s judgment. . The trooper was able to identify these five images as child pornography by matching the 782SHA 1 hash value, a kind of digital fingerprint, of each image that Sutton was sharing on the Gnutella network with that of a child pornography image contained in a national database of known images of child pornography used by law enforcement. At the time of the trooper’s investigation, Sutton also appeared to be sharing numerous other files with titles suggestive of child pornography, though those files could not be matched to files from the national database. . In response to Sutton's argument, the District Court specifically noted: “I do not find that the increase for the number of images or for the nature of the images in any sense unreasonable. And I think it’s rationally related to valid sentencing objectives."	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8473867/	OPINION OF THE COURT NYGAARD, Circuit Judge. Dubrow appeals the District Court’s grant of summary judgment in favor of the City of Philadelphia and prison officials, dismissing Dubrow’s Fourteenth Amendment state-created danger claims. Because our opinion is wholly without precedential value, and because the parties and the District Court are familiar with its operative facts, we offer only an abbreviated recitation to explain why we will affirm the order of the District Court. Dubrow was employed as a mental health nurse at the Philadelphia Industrial Correctional Facility, part of the Philadelphia Prison System. Dubrow walked into a new office unaware that, unlike the other unit in which she routinely worked, the door did not automatically lock behind her. Shortly after, a prisoner also entered the room and began to molest her. Dubrow had no means of summoning help, and had to resort to threatening the prisoner with a kick to his groin if he did not cease. At that time, Dubrow’s supervisor came upon the scene and intervened. The prisoner backed away from Dubrow and was subdued. We have jurisdiction under 28 U.S.C. § 1291. We exercise plenary review over a district court’s order of summary judgment. Kaucher v. County of Bucks, 455 F.3d 418, 422 (3d Cir.2006). On a foundational level, we agree with the District Court that Due Process violations are rooted in an abuse of power or deprivation of liberty. Generally speaking, her presence in the prison facility as an employee did not constitute a deprivation of her liberty that could impose a duty on state actors to ensure a person’s safety. More specifically, while the state-created danger theory of due process violations is an exception to the general rule that the state is not responsible for preventing acts of private harm, we concur with the District Court that it is not applicable to this case. As the District Court properly concluded, Dubrow’s allegations of poor sight-lines between a guard post and the new office, improper door locks, and failures to train or warn her of new safety risks constitute mistakes that are, at most, negligence. Acts of omission by state actor employers of this sort generally do not rise to the level of a constitutional violation. *786Dubrow also contends that the District Court ignored her expert’s testimony. However, we found nothing in the report substantiating Dubrow’s allegation that the City or prison officials willfully or recklessly disregarded threats to her safety that created the harm she experienced. The harm that the prisoner caused Ms. Dubrow is detestable. Nonetheless, for all of the reasons stated above, we conclude that the District Court properly dismissed Dubrow’s Fourteenth Amendment state-created danger claims.	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8473871/	Affirmed by unpublished PER CURIAM opinion. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Isiah James, Jr., appeals the district court’s order accepting the recommendation of the magistrate judge and denying relief on his 42 U.S.C. § 1983 (2006) complaint, and the court’s order denying his post-judgment motions to alter or amend the judgment under Fed.R.Civ.P. 59(e), and to amend the complaint. James also appeals the magistrate judge’s orders denying his motions to recuse and for sanctions. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court and the magistrate judge. James v. Jackson, No. 9:08-cv-00144-TLW (D.S.C. filed Mar. 26, 2008 & entered Mar. 27, 2008; Sept. 2, 2008; Nov. 5, 2008); 2009 WL 291162 (Feb. 4, 2009); (Feb. 27, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED.	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8473881/	Affirmed by unpublished PER CURIAM opinion. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Antonio Saunders appeals the district court’s order denying relief on his 42 U.S.C. § 1983 (2006) complaint. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Saunders v. Buckner, No. 1:07-cv-00501-LMB-*826JFA, 2008 WL 4104439 (E.D. Va. filed Aug. 28, 2008; entered Sept. 2, 2008). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED.	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8473882/	Affirmed by unpublished PER CURIAM opinion. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Quenell Walters and P.W. Ferguson appeal their convictions for (1) conspiring to possess with intent to distribute and distribute cocaine base and (2) possessing with intent to distribute and distributing cocaine base. Ferguson also appeals his mandatory life sentence. Finding no error, we affirm. I. From 2000 until 2005 the Columbia, South Carolina, Police Department and the FBI ran a joint investigation of drug activities in the McDuffie Street neighborhood of Columbia. Drug dealing in the neighborhood was tightly controlled. Only members of the Bloods street gang or persons who lived or grew up in the neighborhood could sell drugs there. Any outsider who attempted to sell drugs in the area was beaten. Walters was a member of the Bloods gang. Over a two-month period Nickolas Guild sold at least one hundred grams of crack to Walters on a street adjoining McDuffie. Walters resold this crack. Ferguson lived in Loretta Brown’s house on McDuffie Street. Brown’s house was used as a central gathering spot and safe haven for drug traffickers. Jerblonski Addison sold crack to Ferguson on a daily basis over a couple of years; these sales totaled at least fifty grams. Guild sold at least 50 grams of crack to Ferguson, and Guild saw Ferguson sell crack on McDuffie Street on a daily basis. Debra Brown, an informant, videotaped both Walters and Ferguson participating in a crack transaction on McDuffie Street. Walters and Ferguson were charged in two counts of a twenty-eight count indictment returned against twenty-one individuals by a federal grand jury on January 17, 2006. Count 1 charged both defendants with conspiring to possess with intent to distribute and distribute fifty grams or more of cocaine base, in violation of 21 U.S.C. §§ 841(a), 841(b)(1)(A), and 846. Counts 16 and 22 charged Ferguson and Walters, respectively, with possessing with intent to distribute and distributing a quantity of cocaine base, and in aiding and abetting, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C) and 18 U.S.C. § 2. The other nineteen co-conspirators charged in the indictment pled guilty. Walters and Ferguson were tried together, and on February 15, 2007, the jury found them guilty of the counts charged. The district court sentenced Walters to a mandatory minimum prison term of 240 829months and sentenced Ferguson to a mandatory term of life in prison. Walters and Ferguson appeal their convictions, and Ferguson appeals his life sentence. II. A. Walters argues that admitting evidence of his membership in the Bloods street gang violated his First Amendment right of assembly. Both defendants argue that allowing testimony about the Bloods street gang was irrelevant and resulted in unfair prejudice. We review the admission of this evidence for abuse of discretion. United States v. Perkins, 470 F.3d 150, 155 (4th Cir.2006). The district court did not abuse its discretion in allowing evidence of Walters’ gang association. The First Amendment does not bar evidence of a person’s associations when it provides a link to criminal activity. “Assessing the probative value of common membership in any particular group, and weighing any factors counseling against admissibility is a matter first for the district court’s sound judgment under Rules 401 and 403.” United States v. Abel, 469 U.S. 45, 54, 105 S.Ct. 465, 83 L.Ed.2d 450 (1984). The evidence of Walters’ membership in the Bloods gang was relevant to the conspiracy charge because the gang controlled the drug activity in the McDuffie Street area. Those who were not Bloods were not allowed to sell drugs in the area unless they grew up there or lived there. The district court did not abuse its discretion in deciding that the probative value of evidence about Walters’ membership in the gang and the gang’s power of exclusion was not substantially outweighed by the danger of unfair prejudice. See Fed.R.Evid. 403. B. The defendants next challenge the district court’s refusal to allow them to introduce evidence that no cooperating government witness took or was required to take a polygraph. According to the defendants, this ruling violated their constitutional rights to confront adverse witnesses, to effective assistance of counsel, and to due process of law. In this circuit the results of a polygraph are not admissible to impeach the credibility of a witness. United States v. Sanchez, 118 F.3d 192, 197 (4th Cir.1997). If the results of a polygraph examination cannot be used to impeach a witness, it follows that the absence of a polygraph cannot be used for impeachment either. It was not an abuse of discretion for the district court to disallow evidence that no cooperating witness took a polygraph test. C. The defendants requested a verdict form (or jury interrogatories) that would have required the jury to make a specific drug quantity determination as to the overall conspiracy and as to each defendant. The district court denied these requests. Instead, the court — with respect to the overall conspiracy and each defendant — -submitted interrogatories that allowed the jury to find drug quantity ranges corresponding to the penalties prescribed in 21 U.S.C. § 841(b). The defendants argue that the interrogatories violated their Sixth Amendment right to a jury trial. Citing Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), the defendants argue that the jury should have been permitted to determine specific drug quantities rather than the ranges specified in the interrogatories. “We review allegations of a constitutionally defective jury instruction 830de novo.” United States v. Stitt, 250 F.3d 878, 888 (4th Cir.2001). This attack on the interrogatories has no merit. There is no authority for requiring the jury to find the exact quantifies of drugs involved. The drug quantity ranges listed in the interrogatories properly reflected the same ranges listed in 21 U.S.C. § 841(b). D. Next, the defendants challenge the district court’s jury instruction on the conspiracy charge. Because this argument was not raised at trial, our review is for plain error. United States v. Reid, 523 F.3d 310, 315 (4th Cir.2008). The defendants contest the district court’s instruction that if the jury found both defendants guilty of the conspiracy charge, then the quantity of cocaine it found attributable to the conspiracy for each defendant had to “match up, because we are talking about the same conspiracy.” J.A. 746. First, the defendants argue that this served to direct a verdict on whether the evidence proved a single conspiracy or multiple conspiracies. This argument fails because there was no evidence that either defendant’s actions related to a conspiracy separate from the McDuffie Street conspiracy. A multiple conspiracy instruction is not required if there is no proof of multiple conspiracies. See United States v. Nunez, 432 F.3d 573, 578 (4th Cir.2005). Second, the defendants argue that the instruction prevented the jury from making an independent determination of the weight of drugs attributable to each defendant as a member of the conspiracy. See United States v. Collins, 415 F.3d 304 (4th Cir.2005). We disagree. The district court complied with circuit law in instructing the jury. The court instructed the jury that it needed to determine (1) whether “the government has proved beyond a reasonable doubt that the defendant participated in a conspiracy,” (2) “the amount of cocaine base that the government has proved beyond a reasonable doubt is attributable to the entire conspiracy,” and (3) “the amount of cocaine base that the government proved beyond a reasonable doubt is attributable to each defendant found to be a member of the conspiracy himself as an individual member of the conspiracy.” J.A. 731-32. The conspiracy instruction, taken as a whole, was not erroneous. E. Walters claims a Brady and Giglio violation because the district court refused to require the government to disclose FBI agent Rodney Crawford’s notes of his interrogation of Walters. See Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). The 302 report prepared by Agent Crawford reflected that Walters admitted his membership in the Bloods gang, and Agent Crawford testified to that effect. Walters — through an oral statement made by his counsel — denied that he had made such an admission to Agent Crawford. Walters did not offer a sworn denial, nor did he ask the district court to conduct any in-camera review of Agent Crawford’s notes. In any case, Walters argues that the notes should have been made available for impeachment purposes. To succeed on a Brady claim, the defendant must show “that prejudice resulted from the suppression.” Vinson v. True, 436 F.3d 412, 420 (4th Cir.2006). Here, even if it is assumed that the interview notes should have been produced, Walters has not shown prejudice. Both Danny Sims and Nickolas Guild testified that Walters was a member of the Bloods gang. Thus, Agent Crawford’s testimony that Walters admitted to his membership in the *831Bloods gang was cumulative evidence. The district court’s refusal to require the government to turn over Agent Crawford’s notes of his interrogation of Walters therefore did not result in any prejudicial error under Brady and Giglio. F. Finally, Ferguson argues that his trial counsel was ineffective for failing to contest the mandatory life sentence imposed by the district court. The court was required to sentence Ferguson to a life term if he violated 21 U.S.C. § 841(b)(1)(A) after having two or more prior felony drug convictions that had become final. An ineffective assistance of counsel claim is not cognizable on direct appeal “unless it conclusively appears from the record that defense counsel did not provide effective representation.” United States v. Benton, 523 F.3d 424, 435 (4th Cir.2008). Ferguson argues that his trial counsel was ineffective for: (1) failing to object to the life sentence enhancement or to request an enhancement hearing; (2) failing to challenge the district court’s consideration of an uncounseled prior conviction; (3) failing to argue that Ferguson did not enter into the § 841 conspiracy after his prior felony drug convictions became final; and (4) failing to request a jury determination of the dates of Ferguson’s participation in the § 841 conspiracy. Ferguson admits that his 1998 felony drug conviction was properly considered as a predicate offense. He claims, however, that his 1999 drug conviction was invalid because he was not represented by counsel and that his 2002 and 2004 drug convictions occurred after he was no longer participating in the § 841 conspiracy. Thus, he claims that his trial counsel was ineffective for not challenging the use of these convictions for enhancement purposes. Two prior felony drug convictions meant a mandatory life sentence for Ferguson. Because he admits to one prior conviction, all of his other convictions would have to have been invalidated as sentence enhancers for his counsel to have succeeded in challenging the mandatory life sentence. Therefore, if just one of the other convictions was valid, Ferguson’s counsel would not have been ineffective for failing to challenge the enhancement. With respect to the 1999 conviction, Ferguson points out that his presentence report (PSR) does not reflect that he had counsel. The PSR simply quotes a South Carolina statute stating that indigent defendants are entitled to counsel. Thus, while we do not know whether Ferguson actually had counsel, we have no basis to determine that this conviction was definitively invalid for enhancement purposes due to lack of counsel. As a result, the record does not conclusively show that Ferguson’s counsel in this case rendered ineffective assistance in failing to challenge the use of his 1999 conviction. In light of the 1998 conviction and the absence of a showing that the 1999 conviction cannot be counted to enhance Ferguson’s sentence, we cannot say that “it conclusively appears from the record that defense counsel did not provide [Ferguson] effective representation” in failing to challenge the predicate convictions for the § 841 enhancement. Benton, 523 F.3d at 435. Ferguson’s ineffective assistance claim must therefore be rejected in this direct appeal. III. For the foregoing reasons, Walters’ and Ferguson’s convictions and Ferguson’s sentence are AFFIRMED.	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8473893/	ORDER Gregorio Gurrola-Rosales, a citizen of Mexico, illegally crossed the border into the United States in 1992. He was 17 years old at the time. In 2004, the Department of Homeland Security (“DHS”) commenced removal proceedings against him. In 2007, following a hearing, an immigration judge (“IJ”) granted Gurrola-Rosales’s application for cancellation of removal based on a finding that his daughter would suffer exceptional and extremely unusual hardship if he was forced to leave the country. The DHS appealed. The Board of Immigration Appeals (“BIA”) reversed and ordered Gurrola-Rosales removed from the United States. Gurrola-Rosales now petitions for review, but because we lack jurisdiction, we must dismiss his petition. Gurrola-Rosales settled in Kansas City, Kansas, secured steady employment, purchased a home, and fathered four children. But after a dozen years here, DHS wanted him removed. Gurrola-Rosales conceded removability but sought cancellation of removal based on “exceptional and extremely unusual hardship” to his 3-year-old daughter. See 8 U.S.C. § 1229b(b)(l)(D). At his hearing before the IJ, Gurrola-Rosales testified that his daughter, a United States citizen, has a medical condition that causes recurrent growths in her larynx and requires frequent outpatient surgeries. This condition, he said, affects her speech and interferes with her breathing, but does not require her to take any medications or limit her activities. His daughter’s treatment is covered by Medicaid, and doctors expect the condition to subside when the girl is a teenager. Gurrola-Rosales testified that he is the sole source of support for his daughter and her mother, and that if he is removed to Mexico, the child will remain in the United States with her mother, an undocumented alien with no source of income. When asked about the child’s mother’s background, Gurrola-Ro-sales explained that she has never worked, and that before moving in with him, she lived with family members in the United States. He further noted that his daughter’s maternal grandmother suffers from diabetes. At the conclusion of the hearing, the IJ granted Gurrola-Rosales’s application for 100cancellation of removal. The IJ found that Gurrola-Rosales had shown continuous physical presence in the United States for ten years and that, as the government conceded, he had established good moral character. See § 1229b(b)(l). The IJ next found that Gurrola-Rosales had established that his removal would work an exceptional and extremely unusual hardship on his daughter given her medical issues, frequent surgeries, and the possibility that she may be at risk for diabetes, which, the IJ opined, could be aggravated by medications. The IJ concluded by stating that, “Under these circumstances, the Court finds that at this trying time in the child’s life, to be separated from her father when she is going through this medical sojourn in which she is exposed to repetitive operations, the Court finds that psychologically and physiologically, the child would suffer the requisite exceptional and extremely unusual hardship.” The DHS appealed, and the BIA vacated the IJ’s order and denied Gurrola-Rosales’s application for relief. The BIA explained that Gurrola-Rosales had failed to show that his daughter would experience exceptional and extremely unusual hardship if he is removed, given that she would likely remain with her mother in the United States, where the government pays for her medical care. The BIA concluded that the IJ had further erred by speculating about the risk of a future onset of diabetes. Moreover, the BIA reasoned, the IJ’s finding that the child would suffer psychological hardship was not supported by any testimony in the record. Accordingly, the BIA ordered Gurrola-Rosales removed and remanded the case to the IJ for the limited purpose of addressing Gur-rola-Rosales’s request for voluntary departure.1 This petition for review followed. In his petition Gurrola-Rosales argues that the BIA erred in reversing the IJ’s decision and failed to thoroughly review the record. The government, however, responds that we lack jurisdiction to consider the petition. As the government correctly notes, 8 U.S.C. § 1252(a)(2)(B)(i) strips us of jurisdiction to review any judgment regarding the discretionary decision to cancel removal under § 1229b(b)(1). See Stepanovic v. Filip, 554 F.3d 673, 678-79 (7th Cir.2009); Chavez-Vasquez v. Mukasey, 548 F.3d 1115, 1118 (7th Cir.2008); Mireles v. Gonzales, 433 F.3d 965, 968 (7th Cir.2006). Nevertheless, we retain jurisdiction to consider constitutional claims or questions of law. 8 U.S.C. § 1252(a)(2)(D); Chavez-Vasquez, 548 F.3d at 1118. Gurrola-Rosales attempts to skirt this jurisdictional bar by arguing that the BIA violated his right to due process by completely failing to consider the record and “irrationally” remanding the case to the IJ for a determination on his request for voluntary departure. At the outset, Gurrola-Rosales’s contention that the BIA’s limited remand was confusing and irrational lacks merit. Because the IJ granted Gurrola-Rosales’s request for relief, the IJ did not make the necessary findings to support voluntary departure under 8 U.S.C. § 1229c. Although the evidence in the record may have been sufficient to support a finding of eligibility, the BIA was entitled to permit the IJ to make this determination in the first instance. See 8 C.F.R. § 1003.1(d)(3) (detailing the BIA’s scope of 101review); see, e.g., Zamora-Mallari v. Mukasey, 514 F.3d 679, 695 (7th Cir.2008); Zahren v. Gonzales, 487 F.3d 1039, 1040 n. 2 (7th Cir.2007); Castrejon-Gareia v. Immigration & Naturalization Serv., 60 F.3d 1359, 1361-62 (9th Cir.1995). And Gurrola-Rosales’s contention that the BIA so completely failed to consider the evidence as to constitute a denial of due process is belied by the record. As the BIA explained, its decision to reverse the IJ’s grant of relief was based on its finding that the medical evidence and testimony “does not indicate that [the daughter’s] condition is so severe that it imposes needs and limitations in her life which would necessitate the respondent’s continued residence in the United States.” Based on its examination of the record, the BIA further concluded that there was no evidence to show that his daughter faced psychological harm or a specific risk of diabetes. The BIA’s order discusses Gurrola-Rosales’s testimony in detail and supports its reasoning with citations to the hearing transcript and record evidence. Accordingly, Gurrola-Rosales’s argument is more accurately characterized as a challenge to the manner in which the BIA weighed the evidence, and thus does not present a question of law. See Chavez-Vasquez, 548 F.3d at 1119; Khan v. Filip, 554 F.3d 681, 688-89 (7th Cir.2009). Perhaps anticipating this outcome, Gur-rola-Rosales also contends that the BIA did not follow its own precedent, noting that prior decisions of the BIA, addressing the standard for exceptional and extremely unusual hardship, “have all turned on the ability of those respondents to care for them children.” Gurrola-Rosales is correct that questions of law may include a misreading of the Board’s own precedent or use of the wrong legal standard. See Patel v. Holder, 563 F.3d 565, 568 (7th Cir.2009); Huang v. Mukasey, 534 F.3d 618, 620 (7th Cir.2008). But here the BIA applied the correct legal standard under § 1229b, and although recognizing that In re Monreal-Aguinaga, 23 I. & N. Dec. 56, 63 (BIA 2001), suggests that an alien might have a strong case for cancellation of removal if he can show that he has “a qualifying child with very serious health issues,” the BIA nevertheless found that the medical condition of Gurrola-Rosales’s daughter is not “so severe” that it would cause her to experience exceptional and extremely unusual hardship. The BIA further noted that the child is likely to remain with her mother where her medical expenses will be covered. Again, GurrolaRosales’s argument can only be described as a challenge to the BIA’s factual determinations and thus presents no question of law for review. See Adebowale v. Mukasey, 546 F.3d 893, 896 (7th Cir.2008) (“A question does not become ‘constitutional’ or ‘legal’ just because its resolution involves the application of a legal standard .... ”); Johnson v. Mukasey, 546 F.3d 403, 404-05 (7th Cir.2008). Because Gurrola-Rosales has not identified any constitutional claims or questions of law, we lack jurisdiction to review the BIA’s order of removal.2 Accordingly, we DISMISS the petition for review. . Because the BIA's order of removal will not be affected by the outcome of Gurrola-Ro-sales’s application for voluntary departure, the order is a "final order of removal” under 8 U.S.C. § 1252(a)(1), the first hurdle to our jurisdiction. See Viracacha v. Mukasey, 518 F.3d 511, 513-14 (7th Cir.2008); Yusupov v. Attorney Gen., 518 F.3d 185, 195-96 (3d Cir. 2008). . Finding that we lack jurisdiction to review the BIA’s decision should not be confused with agreeing with that decision. Given Gur-rola-Rosales’s 17 years here, his admittedly good moral character, his work record, family, and sickly daughter, we much prefer the decision of Judge Brahos. With everything else it has to do, why the DHS thought this matter was so important that an appeal to the BIA was necessary, is less than clear.	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8473880/	Affirmed by unpublished PER CURIAM opinion. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Antonio Saunders appeals the district court’s order denying relief on his 42 U.S.C. § 1983 (2006) complaint. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Saunders v. Buckner, No. 1:07-cv-00501-LMB-*826JFA, 2008 WL 4104439 (E.D. Va. filed Aug. 28, 2008; entered Sept. 2, 2008). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED.	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8473883/	Affirmed by unpublished PER CURIAM opinion. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Eric Costino Sharpe appeals the district court’s order denying his motion to modify his sentence pursuant to 18 U.S.C. § 3582(c)(2) (2006). We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. See United States v. Sharpe, No. 5:04-cr-00190-BO-1 (E.D.N.C. filed June 2, 2009; entered June 3, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED.	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8473886/	PER CURIAM: * The attorney appointed to represent Lucien J. Trammell has moved for leave to withdraw and has filed a brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Trammell has not filed a response. Our independent review of the record and counsel’s brief discloses no nonfrivolous issue for appeal. Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is excused from further responsibilities herein, and the APPEAL IS DISMISSED. See 5th Cir. R. 42.2. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8473889/	PER CURIAM: * Warren Palmer, III, an inmate at the Louisiana State Penitentiary at Angola, filed a 42 U.S.C. § 1983 action against prison officials which the district court dismissed. In his brief, Palmer raises two claims. First, he complains about the manner in which a disciplinary meeting was conducted before he was transferred to administrative segregation. Second, he argues that the magistrate judge improperly granted defendants’ motion for summary judgment and dismissed his claim that the defendants deprived him of his right to exercise while confined in administrative segregation. For the following reasons we affirm the district court’s judgment. Palmer’s first claim fails because due process is generally not required at prison disciplinary hearings unless a hardship much more atypical or significant than Palmer’s 97 days in administrative segregation is imposed. See Sandin v. Conner, 515 U.S. 472, 483-86, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995); Hernandez v. Velasquez, 522 F.3d 556, 563 (5th Cir.2008). On his second claim, a review of the record reveals that the magistrate judge correctly determined that Palmer failed to exhaust his administrative remedies on his argument that defendants deprived him of his right to exercise while confined in administrative segregation. Accordingly, the district court’s grant of summary judgment is AFFIRMED. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8473890/	ORDER Jermaine Ingram pleaded guilty to distributing crack cocaine, 21 U.S.C. § 841(a)(1), and was sentenced to 169 months’ imprisonment and five years’ supervised release. In March 2008, the district court reduced Ingram’s prison sentence to 136 months based on the 2007 amendment to crack-cocaine sentencing guideline, U.S.S.G. § 2D1.1. Ingram was then released from prison and commenced the term of supervised release, but in November 2008, his probation officer petitioned for revocation for, among other grounds, possessing crack with intent to distribute. At his revocation hearing In*98gram admitted possessing crack but denied intending to distribute it. The district court revoked his release and ordered him to serve another 28 months’ imprisonment. Ingram appeals, but his appointed counsel has moved to withdraw because he cannot identify any nonfrivolous argument to pursue. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Ingram has not accepted our invitation to comment on counsel’s motion. See Cir. R. 51(b). We confine our review to the potential issues outlined in counsel’s adequate brief. See United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir.2002). Counsel first considers whether Ingram could challenge the district court’s decision to revoke his supervised release. A district court may revoke a term of supervised release if it finds, by a preponderance of the evidence, that the defendant violated a condition of his release. 18 U.S.C. § 3583(e)(3); United States v. Flagg, 481 F.3d 946, 949 (7th Cir.2007). Here, Ingram admitted possessing crack, which constitutes a Grade A violation, and therefore violated a condition of his release. The violation also made revocation of his release mandatory. 18 U.S.C. § 3583(g)(1); U.S.S.G. §§ 7B1.1(a)(1), 7B1.3(a)(1); United States v. Israel, 317 F.3d 768, 769, 773 (7th Cir.2003); United States v. Trotter, 270 F.3d 1150, 1154 (7th Cir.2001). We agree with counsel that it would be frivolous for Ingram to challenge the district court’s decision to revoke his supervised release. Finally counsel considers whether Ingram might argue that his term of reimprisonment is unreasonable. We will uphold a term of reimprisonment imposed on revocation of supervised release unless it is “plainly unreasonable,” a very deferential standard. United States v. Kizeart, 505 F.3d 672, 674 (7th Cir.2007). Before settling on 28 months, the district court adequately considered the seriousness of Ingram’s violation, the need for deterrence, the policy statements in the guidelines, see U.S.S.G. ch. 7, pt. B, and the sentencing factors set out in 18 U.S.C. § 3553(a). See United States v. Neal, 512 F.3d 427, 438 (7th Cir.2008). Thus, we agree with counsel that any challenge to Ingram’s term of reimprisonment would be frivolous. Accordingly, we GRANT counsel’s motion to withdraw and DISMISS the appeal.	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8473892/	ORDER Gregorio Gurrola-Rosales, a citizen of Mexico, illegally crossed the border into the United States in 1992. He was 17 years old at the time. In 2004, the Department of Homeland Security (“DHS”) commenced removal proceedings against him. In 2007, following a hearing, an immigration judge (“IJ”) granted Gurrola-Rosales’s application for cancellation of removal based on a finding that his daughter would suffer exceptional and extremely unusual hardship if he was forced to leave the country. The DHS appealed. The Board of Immigration Appeals (“BIA”) reversed and ordered Gurrola-Rosales removed from the United States. Gurrola-Rosales now petitions for review, but because we lack jurisdiction, we must dismiss his petition. Gurrola-Rosales settled in Kansas City, Kansas, secured steady employment, purchased a home, and fathered four children. But after a dozen years here, DHS wanted him removed. Gurrola-Rosales conceded removability but sought cancellation of removal based on “exceptional and extremely unusual hardship” to his 3-year-old daughter. See 8 U.S.C. § 1229b(b)(l)(D). At his hearing before the IJ, Gurrola-Rosales testified that his daughter, a United States citizen, has a medical condition that causes recurrent growths in her larynx and requires frequent outpatient surgeries. This condition, he said, affects her speech and interferes with her breathing, but does not require her to take any medications or limit her activities. His daughter’s treatment is covered by Medicaid, and doctors expect the condition to subside when the girl is a teenager. Gurrola-Rosales testified that he is the sole source of support for his daughter and her mother, and that if he is removed to Mexico, the child will remain in the United States with her mother, an undocumented alien with no source of income. When asked about the child’s mother’s background, Gurrola-Ro-sales explained that she has never worked, and that before moving in with him, she lived with family members in the United States. He further noted that his daughter’s maternal grandmother suffers from diabetes. At the conclusion of the hearing, the IJ granted Gurrola-Rosales’s application for 100cancellation of removal. The IJ found that Gurrola-Rosales had shown continuous physical presence in the United States for ten years and that, as the government conceded, he had established good moral character. See § 1229b(b)(l). The IJ next found that Gurrola-Rosales had established that his removal would work an exceptional and extremely unusual hardship on his daughter given her medical issues, frequent surgeries, and the possibility that she may be at risk for diabetes, which, the IJ opined, could be aggravated by medications. The IJ concluded by stating that, “Under these circumstances, the Court finds that at this trying time in the child’s life, to be separated from her father when she is going through this medical sojourn in which she is exposed to repetitive operations, the Court finds that psychologically and physiologically, the child would suffer the requisite exceptional and extremely unusual hardship.” The DHS appealed, and the BIA vacated the IJ’s order and denied Gurrola-Rosales’s application for relief. The BIA explained that Gurrola-Rosales had failed to show that his daughter would experience exceptional and extremely unusual hardship if he is removed, given that she would likely remain with her mother in the United States, where the government pays for her medical care. The BIA concluded that the IJ had further erred by speculating about the risk of a future onset of diabetes. Moreover, the BIA reasoned, the IJ’s finding that the child would suffer psychological hardship was not supported by any testimony in the record. Accordingly, the BIA ordered Gurrola-Rosales removed and remanded the case to the IJ for the limited purpose of addressing Gur-rola-Rosales’s request for voluntary departure.1 This petition for review followed. In his petition Gurrola-Rosales argues that the BIA erred in reversing the IJ’s decision and failed to thoroughly review the record. The government, however, responds that we lack jurisdiction to consider the petition. As the government correctly notes, 8 U.S.C. § 1252(a)(2)(B)(i) strips us of jurisdiction to review any judgment regarding the discretionary decision to cancel removal under § 1229b(b)(1). See Stepanovic v. Filip, 554 F.3d 673, 678-79 (7th Cir.2009); Chavez-Vasquez v. Mukasey, 548 F.3d 1115, 1118 (7th Cir.2008); Mireles v. Gonzales, 433 F.3d 965, 968 (7th Cir.2006). Nevertheless, we retain jurisdiction to consider constitutional claims or questions of law. 8 U.S.C. § 1252(a)(2)(D); Chavez-Vasquez, 548 F.3d at 1118. Gurrola-Rosales attempts to skirt this jurisdictional bar by arguing that the BIA violated his right to due process by completely failing to consider the record and “irrationally” remanding the case to the IJ for a determination on his request for voluntary departure. At the outset, Gurrola-Rosales’s contention that the BIA’s limited remand was confusing and irrational lacks merit. Because the IJ granted Gurrola-Rosales’s request for relief, the IJ did not make the necessary findings to support voluntary departure under 8 U.S.C. § 1229c. Although the evidence in the record may have been sufficient to support a finding of eligibility, the BIA was entitled to permit the IJ to make this determination in the first instance. See 8 C.F.R. § 1003.1(d)(3) (detailing the BIA’s scope of 101review); see, e.g., Zamora-Mallari v. Mukasey, 514 F.3d 679, 695 (7th Cir.2008); Zahren v. Gonzales, 487 F.3d 1039, 1040 n. 2 (7th Cir.2007); Castrejon-Gareia v. Immigration & Naturalization Serv., 60 F.3d 1359, 1361-62 (9th Cir.1995). And Gurrola-Rosales’s contention that the BIA so completely failed to consider the evidence as to constitute a denial of due process is belied by the record. As the BIA explained, its decision to reverse the IJ’s grant of relief was based on its finding that the medical evidence and testimony “does not indicate that [the daughter’s] condition is so severe that it imposes needs and limitations in her life which would necessitate the respondent’s continued residence in the United States.” Based on its examination of the record, the BIA further concluded that there was no evidence to show that his daughter faced psychological harm or a specific risk of diabetes. The BIA’s order discusses Gurrola-Rosales’s testimony in detail and supports its reasoning with citations to the hearing transcript and record evidence. Accordingly, Gurrola-Rosales’s argument is more accurately characterized as a challenge to the manner in which the BIA weighed the evidence, and thus does not present a question of law. See Chavez-Vasquez, 548 F.3d at 1119; Khan v. Filip, 554 F.3d 681, 688-89 (7th Cir.2009). Perhaps anticipating this outcome, Gur-rola-Rosales also contends that the BIA did not follow its own precedent, noting that prior decisions of the BIA, addressing the standard for exceptional and extremely unusual hardship, “have all turned on the ability of those respondents to care for them children.” Gurrola-Rosales is correct that questions of law may include a misreading of the Board’s own precedent or use of the wrong legal standard. See Patel v. Holder, 563 F.3d 565, 568 (7th Cir.2009); Huang v. Mukasey, 534 F.3d 618, 620 (7th Cir.2008). But here the BIA applied the correct legal standard under § 1229b, and although recognizing that In re Monreal-Aguinaga, 23 I. & N. Dec. 56, 63 (BIA 2001), suggests that an alien might have a strong case for cancellation of removal if he can show that he has “a qualifying child with very serious health issues,” the BIA nevertheless found that the medical condition of Gurrola-Rosales’s daughter is not “so severe” that it would cause her to experience exceptional and extremely unusual hardship. The BIA further noted that the child is likely to remain with her mother where her medical expenses will be covered. Again, GurrolaRosales’s argument can only be described as a challenge to the BIA’s factual determinations and thus presents no question of law for review. See Adebowale v. Mukasey, 546 F.3d 893, 896 (7th Cir.2008) (“A question does not become ‘constitutional’ or ‘legal’ just because its resolution involves the application of a legal standard .... ”); Johnson v. Mukasey, 546 F.3d 403, 404-05 (7th Cir.2008). Because Gurrola-Rosales has not identified any constitutional claims or questions of law, we lack jurisdiction to review the BIA’s order of removal.2 Accordingly, we DISMISS the petition for review. . Because the BIA's order of removal will not be affected by the outcome of Gurrola-Ro-sales’s application for voluntary departure, the order is a "final order of removal” under 8 U.S.C. § 1252(a)(1), the first hurdle to our jurisdiction. See Viracacha v. Mukasey, 518 F.3d 511, 513-14 (7th Cir.2008); Yusupov v. Attorney Gen., 518 F.3d 185, 195-96 (3d Cir. 2008). . Finding that we lack jurisdiction to review the BIA’s decision should not be confused with agreeing with that decision. Given Gur-rola-Rosales’s 17 years here, his admittedly good moral character, his work record, family, and sickly daughter, we much prefer the decision of Judge Brahos. With everything else it has to do, why the DHS thought this matter was so important that an appeal to the BIA was necessary, is less than clear.	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8473894/	ORDER Raymond Ryals brokered the sale of one ounce of crack cocaine to a confidential informant, for which he sought to earn $50. A jury ultimately convicted him of distributing a controlled substance in violation of 21 U.S.C. § 841(a)(1), and the district court sentenced him to 365 months’ imprisonment. On January 10, 2008, we remanded after finding that the district court had abused its discretion by failing to make an adequate inquiry into the breakdown of communication between Ryals and his attorney before denying Ryals’s motion for new counsel prior to his sentencing hearing. See United States v. Ryals, 512 F.3d 416, 421 (7th Cir.2008). On remand, after conducting a new sentencing hearing with new defense counsel, the district court determined that Ryals qualified as a career offender, see U.S.S.G. § 4Bl.l(a), and sentenced him to 300 months’ imprisonment. The court’s sentence fell below the career offender guideline range of 360 months to life. At his *103sentencing hearing, Ryals provided the district court with a pro se sentencing memorandum that asked the court to consider the crack/powder disparity in arriving at an appropriate sentence. Ryals now contends that the district court abused its discretion by failing to explicitly address his argument that the crack/powder disparity should constitute a mitigating factor in the court’s determination of his sentence. We need not reach the question of whether the sentencing court failed to address Ryals’s disparity argument, however, because the court had no authority to sentence Ryals, a career offender, to less time based on its policy disagreement with the crack/powder disparity. See United States v. Welton, 583 F.3d 494, 496-97 (7th Cir. 2009). Therefore, we affirm his sentence.	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8473896/	ORDER Cecil Watson, who is African-American, worked for the United States Postal Service for 22 years before he was fired in 2006. He sued his former employer for employment discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., claiming race discrimination and retaliation. The district court granted summary judgment in favor of the Postal Service. We affirm. Watson’s suit arises from clashes with his supervisor, Kenneth Michalowski. Watson, who became manager of the Hoffman Estates branch of the Schaum-burg post office in 2002, reported directly to the postmaster of the Schaumburg post office, a position Michalowski assumed in April 2004. In January 2005, Michalow-ski issued Watson a warning letter for refusing to follow orders to authorize payment to a supervisor. The following month Michalowski issued Watson another warning letter after he left work before all of the letter carriers had returned from their routes, in violation of a directive from Michalowski. In September, Watson received a third warning letter for not following instructions to maintain the “overtime-desired lists” and “annual leave boards” for workers at the Hoffman Estates facility. In October, Watson received a poor rating from Michalowski on his year-end merit evaluation. Watson’s discharge stemmed from events surrounding the handling of suspected hazardous substances. In November 2005 an employee called Watson at home and informed him of a suspicious powder found at the bottom of a package. Although Postal Service policy in such a situation was not to handle the suspicious package, but to isolate it and clear the area, Watson instructed the employee to put some of the powder in a cup and pom-water over it to see if it would foam, 105indicating the presence of detergent and not something more sinister. The next day, after confirming the instructions Watson had given, Michalowski removed Watson from his position as manager and reassigned him to the Schaumburg facility under Michalowski’s direct supervision. On his first day at the Schaumburg facility, Watson went home sick. Michalowski incorrectly marked him absent without leave instead of on sick leave, but later corrected the error so that Watson received his proper salary on his scheduled pay date. Watson later sought leave at Thanksgiving and Christmas in 2006, but those requests were denied. Watson reported to work only four times after being assigned to the Schaumburg facility — twice in December 2005, once in early February 2006, and once in March— and on each of his last three appearances spoke only briefly to Michalowski before leaving. Michalowski filed a proposal to terminate Watson on March 31, and Watson’s termination took effect on June 3. Watson filed this suit under Title VII. He claimed that each of the events he described — the letters of warning, his poor year-end evaluation, being relieved of his duties as manager, being deemed AWOL instead of on sick leave, the denial of his leave requests, and Michalowski’s proposal that he be fired — constituted race discrimination. He also claimed that each of the events constituted retaliation. The district court granted summary judgment to the Postal Service, finding that Watson failed to establish his race-discrimination and retaliation claims because some of the actions he complained of were not materially adverse, and because he offered no evidence to show an improper motive behind the Postal Service’s actions. Watson argues on appeal that he presented sufficient evidence to establish a prima facie case of race discrimination under the indirect burden-shifting method described in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). To establish a prima facie case of race discrimination under Title VII, Watson must show that: (1) he is a member of a protected class; (2) his job performance met the Postal Service’s legitimate expectations; (3) he was subject to a materially adverse employment action; and (4) the Postal Service treated similarly-situated employees outside his protected class more favorably. See McDonnell Douglas Corp., 411 U.S. at 802-04, 93 S.Ct. 1817; Winsley v. Cook County, 563 F.3d 598, 604 (7th Cir.2009). Our review is de novo. Hobbs v. City of Chicago, 573 F.3d 454, 460 (7th Cir.2009). There are three general categories of materially adverse actions that can support a Title VII claim: (1) cases in which an employee’s compensation, benefits or other financial terms of employment are diminished; (2) cases in which a transfer to a lateral position prevents an employee from using his skills and experience, thereby dimming the employee’s career prospects; and (3) cases in which a change in working conditions subjects an employee to a humiliating, unsafe, or otherwise significantly negative alteration in the employee’s workplace environment. Nagle v. Vill. of Calumet Park, 554 F.3d 1106, 1116 (7th Cir. 2009); see Herrnreiter v. Chicago Hous. Auth., 315 F.3d 742, 743-45 (7th Cir.2002). The district court correctly found that Watson could not establish an adverse employment action with regard to the warning letters, the performance evaluation, the denial of his leave requests, or Michalowski’s incorrectly marking him as AWOL. Although those actions might conceivably fall within the third category 106of adverse actions, concerning changes in working conditions, such changes must objectively create a hardship. Herrnreiter, 315 F.3d at 744. These cases typically involve employers’ making jobs unbearable for employees, or severe harassment that worsens employment conditions as perceived by a reasonable person. Id. at 745. Not “every trivial personnel action” that displeases an employee can form the basis of a discrimination suit, id., but that is all these four actions were. Although two of the Postal Service’s actions were materially adverse — the decision to relieve Watson of his managerial duties, and the decision to terminate him — Watson still cannot establish a prima facie case because he cannot show that his job performance met the Postal Service’s legitimate expectations. Regarding the loss of his managerial duties, as the district court explained, as of November 2005, Watson failed to meet the Postal Service’s legitimate expectations because he violated policy during the incident involving the suspicious powder. See Anders v. Waste Mgmt. of Wisc., 463 F.3d 670, 676 (7th Cir.2006) (holding that employee who did not follow employer’s established policy failed to meet legitimate expectations). As for his termination, the powder incident also provided a legitimate basis for that decision. Watson argues that the decision was not timely, in that it was made four months after the powder incident, but as the district court noted, the delay was not suspicious because Watson had essentially stopped working before Michalowski ultimately recommended his termination. Watson next argues generally that the district court erred in concluding that he could not establish unlawful retaliation, and that he can do so under the direct method of proof. See Argyropoulos v. City of Alton, 539 F.3d 724, 733 (7th Cir. 2008). But Watson cannot show a causal connection between any protected activity he engaged in and any adverse action. Watson suggests that Michalowski retaliated against him for contributing to an Equal Employment Opportunity complaint that led to the demotion of another postmaster in July 2004, but Michalowski disciplined Watson for disobeying orders or Postal Service policy, and such discipline was permissible in spite of Watson’s EEO activity. See Argyropoulos, 539 F.3d at 734 (holding that “inappropriate workplace activities are not legitimized by an earlier-filed complaint of discrimination”). Finally, any claim by Watson of retaliation under the indirect method of proof, see Stephens v. Erickson, 569 F.3d 779, 786-87 (7th Cir.2009), would similarly fail because, as discussed above, some of the actions the Postal Service took against him were not materially adverse, and because he did not perform his job satisfactorily. We therefore AFFIRM the judgment of the district court.	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8473898/	ORDER Nathan Gillis, a Wisconsin prisoner, pleaded guilty to two counts of sexual assault and one count each of reckless endangerment, kidnaping, and false imprisonment. In exchange for his plea, the prosecutor agreed to recommend no more than 12 years’ imprisonment. She kept her promise at Gillis’s sentencing hearing, and the state court sentenced him to a total prison term of 12 years on the sexual-assault and reckless-endangerment charges, but withheld sentence and imposed probation on the remaining charges. Gillis completed his prison sentence but later violated the terms of his probation. Although the prosecutor recommended 20 years’ imprisonment at the post-revocation sentencing hearing on the kidnaping charge, the court imposed a 12-year sentence. After exhausting his state remedies, Gillis filed a petition for a writ of habeas corpus, 28 U.S.C. § 2254, arguing, among other things, that the state breached the plea agreement by recommending imprisonment beyond the 12 years he had already served. The district court denied the petition, but we granted a certificate of appealability. We affirm the judgment of the district court. I. Background Gillis’s victim testified at trial that she was walking home at night when Gillis grabbed her from behind, forced her into his apartment, and raped her. Gillis insisted that the victim was a prostitute and the sex was consensual, but he nevertheless decided midway through the trial to enter an Alford plea on each of the five counts, meaning he pleaded guilty but maintained his innocence. See North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). He faced a maximum prison sentence of 47 years, but, in exchange for his plea, the state agreed to recommend no more than 12 years in prison. The terms of the plea agreement were not put in writing, but the prosecutor announced them on the record: [T]he state has agreed that it will not recommend more than twelve years in prison on one or more of the counts — a cap of twelve years in prison. But also it is agreed the defendant will accept probation on any or all the counts that the state argues for probation on, and any length of time in terms of probation can be argued. At sentencing the state recommended that the court impose consecutive sentences of five years’ imprisonment on each of the sexual-assault charges and two years’ imprisonment on the reckless-endangerment charge, for a total of 12 years, and withhold sentence but impose concurrent terms of 20 years’ probation on the kidnaping charge and six years’ probation on the false-imprisonment charge. The court adopted the recommendation. Gillis served his 12-year prison sentence and was released in September 2005, but when he refused to register as a sex offender, he was detained at Wisconsin’s 113Dane County jail, where his disorderly conduct led to revocation of his probation. At sentencing on the withheld kidnaping charge, the state recommended 20 years’ imprisonment, the statutory maximum, and the court imposed a 12-year prison sentence. On direct appeal Gillis argued, as relevant here, that the state violated the plea agreement by recommending a 20-year prison term at the post-revocation sentencing hearing. The state, he asserted, had agreed to recommend a total of 12 years’ imprisonment for all five counts. And, because Gillis had already served his 12-year prison term, he argued, any further sentencing recommendation violated the plea agreement. The Wisconsin Court of Appeals disagreed, explaining that when a plea agreement does not expressly extend beyond the original sentencing, its terms do not apply to sentencing after revocation of probation. The Wisconsin Supreme Court denied Gillis’s petition for review. Gillis filed a petition for a writ of habeas corpus attacking his sentence, but the district court denied the petition. We granted a certificate of appealability on the question whether Gillis’s sentence violated his right to due process because the state breached the plea agreement by recommending a 20-year sentence at his postre-vocation sentencing hearing. II. Analysis We review de novo the district court’s decision to deny Gillis’s petition for a writ of habeas corpus. See Pole v. Randolph, 570 F.3d 922, 933-34 (7th Cir.2009). To prevail, Gillis must demonstrate that the Wisconsin appellate court’s decision either was based on an unreasonable determination of the facts in light of the evidence, or was contrary to or involved an unreasonable application of clearly established federal law as determined by the Supreme Court. See 28 U.S.C. § 2254(d)(1)-(2); Hartjes v. Endicott, 456 F.3d 786, 789-90 (7th Cir.2006). In pursuing his due-process argument, Gillis first contends that the Wisconsin appellate court’s conclusion that the terms of the plea agreement were limited to the original sentencing proceeding is an unreasonable determination of fact. The terms of a plea agreement are questions of fact, United States v. Williams, 198 F.3d 988, 992 (7th Cir.1999), and we presume a state court’s factual findings to be correct absent clear and convincing evidence to the contrary, § 2254(e)(1). At Gillis’s change-of-plea hearing, the prosecutor stated on the record that she would “not recommend more than twelve years in prison on one or more of the counts.” Gillis interprets this to mean that the state’s promise was linked, not to the original sentencing, but instead to the counts of conviction. Thus, according to Gillis, the state’s promise to restrict its sentencing recommendation was binding at any future sentencing related to those counts. And, because the prosecutor recommended 12 years — the promised maximum — at his original sentencing, Gillis insists that the state could not recommend additional imprisonment under any circumstances. Even assuming that Gillis’s interpretation of the plea agreement is plausible, he has not presented any convincing evidence, as he must, that the Wisconsin appellate court’s contrary interpretation is unreasonable. A plea agreement is a contract, and its terms are interpreted according to ordinary contract principles. United States v. Artley, 489 F.3d 813, 824 (7th Cir.2007). The state’s obligations under a plea agreement “are limited by what the parties in fact agreed to.” United States v. Lezine, 166 F.3d 895, 901 (7th Cir.1999). Here, the plea agreement did 114not expressly restrict the prosecutor’s freedom to recommend a particular sentence in the event that Gillis’s probation was revoked, and there is no evidence of an off-the-record agreement that the state would remain silent at a post-revocation sentencing healing. Indeed, Gillis’s suggested interpretation would render the plea agreement internally inconsistent. Although the prosecutor agreed to recommend no more than 12 years in prison, she reserved the right to recommend any .length of probation on the remaining counts. If Gillis’s interpretation of the plea agreement is correct, the state reserved its right to recommend a 20-year term of probation while simultaneously promising not to recommend further imprisonment if Gillis’s probation was revoked — a result that would seemingly undermine the purpose of recommending probation at all. See United States v. Barnett, 415 F.3d 690, 692 (7th Cir.2005) (explaining that plea agreement should not be interpreted in manner that would produce result the parties were unlikely to have agreed to). The Wisconsin Court of Appeals based its decision on state precedent that the terms of a plea agreement do not extend to a sentencing after revocation of probation absent an express agreement otherwise. See State v. Window, 169 Wis.2d 341, 485 N.W.2d 832, 835 (1992). The same conclusion has been reached by the supreme courts of at least two other states. See People v. Segura, 44 Cal.4th 921, 80 Cal. Rptr.3d 715, 188 P.3d 649, 658 (2008); Peltier v. State, 657 N.W.2d 238, 244 (N.D. 2003). Further, several courts have rejected a defendant’s proffered interpretation of a plea agreement where, as here, that reading would undermine the purpose of probation. See United States v. Gerace, 997 F.2d 1293, 1295 (9th Cir.1993) (“Probation would be a useless implement in the criminal justice process if it could not be revoked. It would be inconsistent for the prosecution to agree to a bargain that would defeat the purpose of probation.”); United States v. Brown, 583 F.2d 915, 917 (7th Cir.1978) (“If revoking probation when a defendant violates its terms breaches a plea bargain granting probation, then restrictions on probation in effect would be unenforceable.”); United States v. Chen, 837 F.Supp. 1225, 1227 (S.D.Fla.1993) (“[I]t would be an inconsistent, and counter-intuitive interpretation of the plea agreement to rule that the prosecution had agreed to a bargain that defeats the very purpose of the sentence that they sought to obtain.”), aff'd without opinion by 25 F.3d 1061 (11th Cir.1994). Given the weight of authority supporting the Wisconsin appellate court’s conclusion that the plea agreement did not extend beyond the original sentencing, Gillis cannot demonstrate that the determination was unreasonable. This conclusion forecloses Gillis’s second argument — that the outcome reached by the Wisconsin Court of Appeals is contrary to the Supreme Court’s decision in Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971). In exchange for the defendant’s guilty plea in Santobello, the prosecutor agreed to refrain from making a sentencing recommendation. Id. at 258, 92 S.Ct. 495. That prosecutor, however, was replaced before sentencing, and the new prosecutor recommended the maximum sentence, which the court imposed. Id. at 259-60, 92 S.Ct. 495. The Supreme Court remanded the case to the state courts, concluding that “when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration,” the prosecutor must fulfill that promise. Id. at 262, 92 S.Ct. 495. Santobello thus stands for the general proposition that the government must *115keep its end of a plea bargain; it does not address the more narrow question whether the terms of a plea agreement extend to sentencing after revocation of probation. And because the Wisconsin appellate court reasonably determined that the terms of the plea agreement in this case were limited to the original sentencing proceeding, its conclusion that the government satisfied its obligations under the plea agreement is not at odds with Santobello. See Knowles v. Mirzayance, — U.S. —, 129 S.Ct. 1411, 1420, 173 L.Ed.2d 251 (2009) (explaining that when Supreme Court precedent establishes general standard, state courts have greater latitude to reasonably determine that defendant has not satisfied that standard). III. Conclusion Accordingly, we AFFIRM the judgment of the district court.	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8473900/	ORDER Jubali Stokes pleaded guilty to conspiracy to distribute crack. See 21 U.S.C. §§ 846, 841(a)(1). Before sentencing, the government filed an information stating that Stokes had previously been convicted in Illinois for possessing 15 to 100 grams of cocaine, a crime defined by state law as a felony and punishable by up to 15 years’ imprisonment. See 720 Ill. Comp. Stat. 570/402(a)(2)(A). The district court thus sentenced him to 20 years’ imprisonment, the mandatory minimum for an offender with a prior felony drug conviction. See 21 U.S.C. § 841(b)(1)(A). Stokes appeals, but his appointed counsel now seeks to withdraw under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), because he concludes that the appeal is frivolous. We review only the potential issues identified in counsel’s facially adequate brief and Stokes’s response under Circuit Rule 51(b). See United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir.2002). Counsel first considers whether Stokes could challenge the voluntariness of his guilty plea or the adequacy of the plea colloquy, but Stokes has not stated in his Rule 51(b) submission or elsewhere that he wants his guilty plea set aside, so counsel should have omitted this discussion. See United States v. Knox, 287 F.3d 667, 671 (7th Cir.2002). Counsel and Stokes both consider whether Stokes could challenge the imposition of a 20-year mandatory minimum prison sentence. In his Rule 51(b) response, Stokes tells us that he received probation for his state drug offense and asserts that it therefore does not count as a “prior conviction for a felony drug offense” for purposes of § 841(b)(1)(A). But Stokes did not file a written objection to the information as required by 21 U.S.C. § 851(c), and his counsel correctly conceded at sentencing that the conviction “clearly is a felony in Illinois, and it clearly is punishable under Illinois [law] by more than one year.” Regardless, the argument is frivolous because a drug offense need only be punishable by imprisonment for more than one year to qualify as a felony, 21 U.S.C. § 802(44); Burgess v. United States, 553 U.S. 124, 128 S.Ct. 1572, 1577, 170 L.Ed.2d 478 (2008), and a sentence of probation does not affect that classification, see United States v. Graham, 315 F.3d 777, 783 (7th Cir.2003). Counsel does not contemplate an attack on the felony classification but considers instead whether Stokes might challenge § 841(b)(1)(A) more generally on equal-protection grounds, as he did in the district court. Counsel proposes arguing that the statute invites unwarranted sentencing disparity because the same first-offense conduct — in this case, drug possession — might be punishable by more than a year in one state (and thus a felony) but less than a year in another, and only the defendant convicted in the state with the harsher, felony penalty would be subject to a mandatory minimum sentence. But we agree with counsel that the argument is frivolous because it is well-established that Congress acts rationally, and therefore does not violate equal protection, when it incorporates state law into a federal sentencing scheme, even when there are dif*117ferences among the states. See, e.g., United States v. McKissick, 204 F.3d 1282, 1301-02 (10th Cir.2000); United States v. Lender, 985 F.2d 151, 156-57 (4th Cir. 1993); United States v. Curtis, 965 F.2d 610, 614-15 (8th Cir.1992); United States v. Houston, 547 F.2d 104, 107 (9th Cir. 1976); United States v. Schwartz, 398 F.2d 464, 467 (7th Cir.1968). Finally, Stokes argues in his Rule 51(b) response that the district court should have considered the sentencing guidelines’ crack/powder-cocaine disparity when fashioning his sentence. But the argument is misguided because the court was statutorily constrained from sentencing Stokes below the mandatory minimum. See Kimbrough v. United States, 552 U.S. 85, 128 S.Ct. 558, 574, 169 L.Ed.2d 481 (2007); United States v. Roberson, 474 F.3d 432, 434 (7th Cir.2007). Counsel’s motion to withdraw is GRANTED, and the appeal is DISMISSED.	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8473902/	ORDER Timothy Day, Jr., robbed three banks in less than two weeks. During the robber118ies, Day posted at least one lookout outside, warned bank employees that he had a gun, and told the tellers not to give him any “funny money.” A week after the third robbery, Day was arrested outside another bank he and his cohorts were casing. He pleaded guilty -without a plea agreement to three counts of bank robbery, 18 U.S.C. § 2113(a), and was sentenced to 51 months’ imprisonment. Day filed a notice of appeal, but his appointed lawyers have concluded that the case is frivolous and seek to withdraw under Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). We invited Day to respond to counsel’s motion, though he did not. See Cir. R. 51(b). Our review is limited to the potential issues identified in counsel’s facially adequate brief. See United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir.2002). Counsel initially advise that Day does not want his guilty pleas vacated, and so the lawyers properly omit any discussion of the adequacy of the plea colloquy or the voluntariness of the pleas. See United States v. Knox, 287 F.3d 667, 670-72 (7th Cir.2002). Counsel have considered arguing that Day’s prison sentence is unreasonable. The district court set Day’s total offense level at 24, which includes a two-level increase for robbing a financial institution, U.S.S.G. § 2B3.1(b)(l), a two-level increase for making a “threat of death” during one of the robberies, id. § 2B3.1 (b)(2)(F), a three-level increase for multiple counts, id. § 3D1.4, and a three-level reduction for acceptance of responsibility, id. § 3El.l(a). Day’s offense level, combined with his Category I criminal history, produced a guidelines imprisonment range of 51 to 63 months. The district court evaluated the factors in 18 U.S.C. § 3553(a) and concluded that a sentence at the low end of that range was both appropriate and a “real bargain” for Day. The court was not persuaded that Day’s disadvantaged childhood, his cooperation with authorities after his arrest, or his expressions of remorse merited a lower prison term given the number of robberies and his use of a gun each time. The sentence imposed is within the guidelines range and thus presumptively reasonable, United States v. Panaigua-Verdugo, 537 F.3d 722, 727 (7th Cir. 2008), and Day’s lawyers are unable to articulate any basis for disregarding that presumption. It does not matter, as counsel recognize, that Day received a stiffer prison term than one of his lookouts; Day was the one who entered the banks and threatened their employees with a gun, and, more importantly, a difference when measured against the sentence of a codefendant for arguing that a prison term is unreasonable is not a valid basis for arguing that a prison term is unreasonable. See, e.g., United States v. Omole, 523 F.3d 691, 700 (7th Cir.2008); United States v. Vaughn, 433 F.3d 917, 926 n. 14 (7th Cir. 2006); United States v. White, 406 F.3d 827, 837 (7th Cir.2005). Accordingly, we agree with counsel that challenging the reasonableness of Day’s prison term would be frivolous. We also agree with counsel that Day cannot argue that the district court should have set a schedule for his payment of restitution while in prison.- A sentencing court is not required to, and generally should not, set a payment schedule covering the period of incarceration. See United States v. Hatten-Lubick, 525 F.3d 575, 581-82 (7th Cir.2008); United States v. Sawyer, 521 F.3d 792, 795 (7th Cir.2008). Finally, counsel consider whether Day could challenge the district court’s failure to specify the number of drug tests he must undergo while on supervised release. The district court should have set the number of required drug tests, 18 U.S.C. 119§ 3588(d); United States v. Bonanno, 146 F.3d 502, 511 (7th Cir.1998), but Day said nothing about the omission at sentencing, and the error is not one that we would correct on plain-error review. See United States v. Harvey, 484 F.3d 453, 458-59 (7th Cir.2007); United States v. Tejeda, 476 F.3d 471, 475 (7th Cir.2007). Thus, we agree with counsel that it would be frivolous to raise this point on appeal. Accordingly, we Grant counsel’s motion to withdraw and Dismiss the appeal.	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8473904/	ORDER After an Administrative Law Judge (“ALJ”) denied Supplemental Security benefits (“SSI”) for Nathan Murphy, a minor, we held that the ALJ failed to explain and support his disregard of pertinent evidence in finding that Nathan did not demonstrate sufficient impairment to qualify for coverage. We remanded for further proceedings, and Mrs. Vicki Murphy (Nathan’s mother) subsequently filed a petition for attorney’s fees under the Equal Access to Justice Act, 28 U.S.C. § 2414(d) (“EAJA”). The district court denied the petition, finding that the government was substantially justified in its position. We find that the district court did not abuse its discretion in making this determination, and so we AFFIRM. I. Background In November 2001, Mrs. Murphy applied to the Social Security Administration for SSI benefits on behalf of her son, alleging that Nathan suffered from Attention Deficit Hyperactive Disorder and affective mood disorders. At the administrative hearing, the ALJ had Dr. Kenneth Kessler review Nathan’s medical records, and Dr. Kessler ultimately confirmed that Nathan exhibited a marked limitation in the domain of “interacting and relating to others.” Dr. Kessler also determined that Nathan did not exhibit marked limitations in four out of the five other relevant domains, but stated that he was unable to conclude whether Nathan had a marked limitation in the final domain of “attending and completing tasks.” Dr. Kessler recommended obtaining behavioral evaluations from Nathan’s school in order to 121determine whether Nathan suffered from this limitation. The ALJ supplemented the administrative record with a behavioral assessment along with additional documents from Nathan’s school containing surveys from Nathan’s teachers regarding his behavioral tendencies and classroom performance. Mr. and Mrs. Murphy also testified about Nathan’s “day-to-day moods and behavior.” After reviewing this information, but without having Dr. Kessler examine the documentation, the ALJ denied benefits, finding that Nathan did not have a marked impairment in the domain of “attending and completing tasks,” and, therefore, was not disabled because he did not meet the requirement of having marked limitations in at least two domains of functioning. The ALJ also commented that Nathan’s parents “were not fully credible” because “them complaints were not entirely consistent with the other substantial evidence in the record.” The Appeals Council declined to review the ALJ’s decision, making the ruling final, and Mrs. Murphy appealed to the district court, which affirmed the ALJ’s decision. Mrs. Murphy then appealed to this court, and we vacated the district court’s decision because we found that the ALJ had not explained why he disregarded pertinent evidence in the record. Murphy v. Astrue, 496 F.3d 630, 633 (7th Cir.2007). Specifically, we noted that although the ALJ pointed to evidence in support of his ruling, he did not explain why he disregarded those portions of the school documents that supported a finding that Nathan was disabled. Id. at 634-35. We also found that the ALJ’s credibility determinations concerning Mr. and Mrs. Murphy were not supported by the administrative record. Id. at 635. Similar to the gaps in reasoning noted above, the ALJ “noted, without elaboration” that Mr. and Mrs. Murphy’s observations did not comport with the school’s records — the same school records the ALJ failed to explain when addressing Nathan’s disability determination. Id. So we concluded that the ALJ’s decision was not supported by substantial evidence. Id. Following remand, Mrs. Murphy filed a petition for attorney’s fees under the EAJA, 28 U.S.C. § 2412(d). The district court denied the petition, finding that the ALJ’s conclusion that Nathan was not disabled, his decision not to re-contact Dr. Kessler, and his credibility determination were substantially justified. With respect to the ALJ’s disability finding, the district court found that the ALJ was substantially justified because his assessment of the evidence met the minimal level of articulation. The court also relied on the fact that our prior opinion did not contain strong language that would support an award of attorney’s fees under the EAJA. The district court determined that the ALJ was substantially justified in reviewing Nathan’s behavioral assessment without contacting Dr. Kessler because he was qualified to do so after reviewing the school records. See Murphy, 496 F.3d at 634. Finally, the district court judge found that the ALJ’s credibility finding was substantially justified because he proffered some evidence, albeit minimal, that contradicted Nathan’s parents’ testimony. Mrs. Murphy now appeals the district court’s denial of her motion for attorney’s fees. II. Analysis A. The Legal Framework The EAJA allows a successful litigant against the United States to recover attorney’s fees provided that: (1) the litigant was a “prevailing party”; (2) the government’s position was not “substantially justified”; (3) there existed no special circumstances that would make an award unjust; 122and (4) the litigant filed a timely application with the district court. 28 U.S.C. § 2412(d)(1)(A) — (B); Krecioch v. United States, 316 F.3d 684, 688 (7th Cir.2003). The only issue on appeal is whether the government’s position was substantially justified, which the Commissioner bears the burden of proving. Marcus v. Shalala, 17 F.3d 1033, 1036 (7th Cir.1994). We review the district court’s denial of a petition for attorney’s fees and costs for an abuse of discretion. Pierce v. Underwood, 487 U.S. 552, 562, 108 S.Ct. 2541, 101 L.Ed.2d 490 (1988). Attorney’s fees may be awarded if the Commissioner’s pre-litigation conduct or his litigation position lacked substantial justification. Golembiewski v. Barnhart, 382 F.3d 721, 724 (7th Cir.2004). The ALJ’s decision is considered part of the Commissioner’s pre-litigation conduct. Id. The Commissioner’s position is substantially justified if his conduct has a “reasonable basis in law and fact, that is, if a reasonable person could believe the position was correct.” Golembiewski, 382 F.3d at 724 (citing Marcus, 17 F.3d at 1036). “Substantially justified does not mean justified to a high degree, but rather has been said to be satisfied if there is a genuine dispute or if reasonable people could differ as to the appropriateness of the contested action.” Stein v. Sullivan, 966 F.2d 317, 320 (7th Cir.1992) (citation and internal quotation marks omitted). Stated another way, the substantial justification standard means that the ALJ was “justified in substance or in the main — that is, justified to a degree that could easily satisfy a reasonable person.” Pierce, 487 U.S. at 565-66, 108 S.Ct. 2541 (1988). B. Mrs. Murphy’s “Strong Language” Argument Mrs. Murphy first argues that the district court used an erroneous legal standard in finding that the Commissioner was substantially justified. Specifically, she claims that the district court inordinately focused on whether our decision used strong language, instead of recognizing that strong language is just one factor, and not the principal focus of the substantial justification analysis. As Mrs. Murphy correctly states, in some cases, strong language against the government’s position in an opinion on the merits may suggest that the Commissioner’s position was not substantially justified. See Marcus, 17 F.3d at 1038. Here, however, it is clear that the district court was simply addressing Mrs. Murphy’s own argument when discussing the lack of “strong language” in our merits opinion, and was not under the mistaken impression that strong language was the only method of showing a lack of substantial justification. The court compared the language used and the errors we identified in our decision to those found in a similar case, Golembiewski v. Barnhart, 382 F.3d 721, 724 (7th Cir.2004). This comparison illustrated that our previous decision in this case did not contain the same “admonishing language” used to describe the severe errors found in Golembiewski.1 The district court did not use language suggesting that strong language was the only way to support an award of attorney’s fees; instead, the court recognized that it was one factor that supports a claim for fees and assessed it accordingly. The fact that the district court analyzed this particular factor and disagreed with Mrs. Mur123phy does not amount to an abuse of discretion. C. No Showing of a Lack of Substantial Justification Mrs. Murphy next contends that the ALJ’s decision violated our precedent and the Commissioner’s own regulations, and therefore was not substantially justified. Essentially, Mrs. Murphy appears to argue that the ALJ did not adhere to well-established law because he failed to fully develop the record and adequately articulate his analysis, and that the government was not substantially justified in defending the ALJ’s ruling. Again, we cannot agree with Mrs. Murphy. In our previous opinion, we found that the ALJ did not “sufficiently explain” his disregard for pertinent evidence that was inconsistent with his disability finding, and expressed our concern that he noted, “without elaboration,” that Murphy’s testimony was inconsistent with parts of the record. See Murphy, 496 F.3d at 635. These are errors of articulation, which we have held “in no way necessitate a finding [that] the [government’s] position was not substantially justified” because the “requirement that the ALJ articulate his consideration of the evidence is deliberately flexible.” Stein, 966 F.2d at 319-320. In Stein, we found that although the judge failed to consider some of the evidence in the record, his argument was supported by other evidence and so the government was substantially justified in its position. Id. The same goes for this case. Although the ALJ failed to consider evidence concerning a disability finding and did not sufficiently explain his credibility determination, there was still some discussion and some evidence in the record that supported his position; “this is not a case in which the Commissioner’s position is based on speculation with no support in the record.” Cunningham v. Barnhart, 440 F.3d 862, 865 (7th Cir.2006). “Substantially justified does not mean justified to a high degree, but rather has been said to be satisfied ... if reasonable people could differ as to the appropriateness of the contested action.” Stein, 966 F.2d at 320 (citing Pierce, 487 U.S. at 565, 108 S.Ct. 2541 (internal quotation marks omitted)). Here, some evidence supported the ALJ’s disability and credibility determinations, and since that evidence was noted by the ALJ, we cannot say that the district court abused its discretion in finding that reasonable people could differ as to the appropriateness of the ALJ’s decision, even though his articulation of that decision was minimal. See Stein, 966 F.2d at 320 (finding no abuse of discretion even though “the Secretary failed to consider, or at least failed to articulate that he considered” contrary evidence); Cunningham, 440 F.3d at 865 (finding no abuse of discretion because the medical evidence supported the ALJ’s decision). D. The Permissible Reevaluation of Underlying Merits Last, Mrs. Murphy argues that the district court abused its discretion by reassessing the underlying merits of the SSI benefits application rather than evaluating the errors we previously found in the ALJ’s decision. However, because the Commissioner also relies on the evidence used by the ALJ, the district court must also, at some point, consider this evidence when assessing the government’s pre-litigation and litigation positions to determine whether these positions are substantially justified. The district court must necessarily go beyond our opinion and examine the ALJ’s decision and the evidence he used; the substantial justification standard used to determine EAJA fees differs from the substantial evidence standard used in our previous opinion, so the basis for the government’s position must be analyzed with this less demanding standard in mind. See Cummings v. Sullivan, 950 F.2d 492, 498 (7th Cir.1991). To the extent that the 124district court “reassessed” the underlying merits of the application, it only did so to determine whether that the evidence used by the ALJ, and relied upon by the Commissioner, was sufficient to create a genuine dispute, which is part of a substantial justification analysis. See Stein, 966 F.2d at 320. The district court’s evaluation of the underlying merits was limited to the evidence considered by the ALJ, which is a necessary component in determining if the government was substantially justified in defending the ALJ’s ruling because it shows that the Commissioner’s position was not “based on speculation with no support in the record.” Cunningham, 440 F.3d at 865. Notably, the district court stated at the outset of its analysis that although it would focus on the ALJ’s actions, it would not “ignore the Seventh Circuit’s findings.” A reading of the district court’s decision shows that it did not ignore the errors we found with the ALJ’s analysis, but in fact used those errors as a starting point when assessing the government’s pre-litigation and litigation positions. With regard to the disability finding, the district court analyzed our opinion and reasoned that it did not contain strong language suggesting a lack of substantial justification, and that the articulation errors we assigned to the ALJ did not compel a finding that the government was not substantially justified. This analysis was essential to the issues before the court and was not a reevaluation of the underlying merits. Therefore, we find no abuse of discretion in the district court’s assessment of the evidence or in any of its conclusions. III. Conclusion For the foregoing reasons, the judgment of the district court is Affirmed. . Specifically, the Golembiewski court noted that in its preceding merits opinion, it had urged the Commissioner to assign the matter to another ALJ and had "closed with an additional observation,” admonishing the ALJ to consider the aggregate of the plaintiff's "host of medical conditions.” 382 F.3d at 725.	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8473906/	ORDER Columbus Malone was convicted of conspiracy to distribute cocaine base in violation of 21 U.S.C. § 846 and distribution of cocaine base in violation of 21 U.S.C. § 841(a)(1). We affirmed his conviction, but have twice remanded for resentencing. One remand was at the request of Mr. Malone, and the other was at the request of the Government. Mr. Malone now seeks a third such remand, contending that the district court ignored his arguments for a below-guidelines sentence. For the reasons set forth in this order, we affirm the judgment of the district court.1 I BACKGROUND In Mr. Malone’s first appeal, we first ordered a limited remand, then a full remand for resentencing because the Sentencing Guidelines had become advisory. On remand, Mr. Malone was sentenced to 170 months’ imprisonment. The Government then appealed; we remanded all defendants for resentencing because, as argued by the Government, the district court incorrectly had believed that it was precluded from making its own factual determinations for purposes of determining the defendants’ relevant conduct. See United States v. Johnson, 193 Fed.Appx. 630, 635 (7th Cir.2006). In January 2007, Mr. Malone was sentenced to 292 months in prison. In October 2007, Mr. Malone filed a § 2255 motion to vacate his sentence, claiming that his counsel had failed to file a notice of appeal. On October 27, 2008, following an evidentiary hearing, the district court granted the motion to vacate and referred the case to another judge of the court for resentencing. R.530 (docket entry). At Mr. Malone’s most recent sentencing hearing on March 5, 2009, his counsel argued for a below-guidelines sentence of 170 months. He argued that Mr. Malone had no prior convictions, had matured since committing the crimes, was taking advantage of the programs available to inmates and was close to obtaining a GED. He also argued that Mr. Malone reaches out to younger people and understands that, if he had not been sent to prison, he would likely be dead. R.572 at 4-9. Mr. Malone himself asked for a second chance to be a father to his children. Id. at 10. A written sentencing memorandum also noted many of these points and stated that Mr. Malone came from a broken home and 126had been introduced to gangs, drugs and violence by his brothers. See R.558. After the Government asked for a 285-month sentence, which was at the very bottom of the guidelines range, the court discussed the nature of Mr. Malone’s offense, his history and characteristics, the need to reflect the seriousness of the crime, the need for uniform sentencing practices and the nature of crack sentences. In the course of this discussion, the court acknowledged Mr. Malone’s difficult childhood and his lack of prior convictions. The court also commended Mr. Malone on his participation in prison programs. The court then imposed a sentence of 285 months’ imprisonment. Mr. Malone now appeals. II DISCUSSION Review of a defendant’s sentence proceeds in two stages. First, we evaluate whether the district court committed any procedural error. See United States v. Scott, 555 F.3d 605, 608 (7th Cir.2009). Such errors include treating the Guidelines as mandatory, failing to calculate the guidelines range or failing to explain adequately the chosen sentence. Id. Second, we review the substantive reasonableness of the sentence for abuse of discretion. Id. In so doing, we consider the district court’s explanation of its reasons for the sentence, which must allow for meaningful review. Id. Mr. Malone contends that the district court ignored his request for a below-guidelines sentence. Specifically, he points to five arguments that he presented: (1) that he has no prior convictions; (2) that he came from a broken home; (3) that other family members introduced him to gangs and drugs; (4) that the time already spent in custody has made him a changed man; and (5) that he has participated in numerous prison programs. In ignoring his request for a below-guidelines sentence, Mr. Malone submits, the district court showed that it was employing a presumption in favor of the Guidelines. Our review of the record does not support Mr. Malone’s contention. The district court explicitly stated that it was “not looking for a sentence within the Guidelines];,]” but was “looking for a reasonable sentence.” R.572 at 12. It acknowledged, however, that the Guidelines were one of the factors that it had to take into account. See 18 U.S.C. § 3553(a)(4). The court went on to consider the nature and circumstances of the offense. See id. § 3553(a)(1). This factor “weighted] very heavily against” Mr. Malone, R.572 at 13, who had been involved in a 5-year conspiracy that distributed over 1.5 kilograms of crack cocaine. The court then discussed Mr. Malone’s history and characteristics, see 18 U.S.C. § 3553(a)(1), mentioning his difficult childhood and lack of criminal history, but also mentioning eight arrests from 1994 to 1998. The court acknowledged that Mr. Malone “believe[d] that [he was] ready to return to society as a law-abiding citizen[,]” R.572 at 15, and commended Mr. Malone on taking advantage of opportunities to make himself a better person than he was when he became incarcerated. The court then considered the need to reflect the seriousness of the crime, to provide a fair punishment and to deter. See 18 U.S.C. § 3553(a)(2). In that regard, the district court regarded the guidelines sentence as low, because it did not reflect that someone in the conspiracy had fired several gunshots, which may or may not have hit anyone, but nonetheless amplified the impact of the conspiracy crime on the neighborhood. R.572 at 16. The court also admitted that it was not sure 127“whether following the Guidelines [for crack cocaine] increases respect for the law or decreases respect for the law.” Id. The court concluded that, “in light of the nature and circumstances of the crime and the need for the sentence to reflect the seriousness of the crime and provide a fair punishment and avoid unwarranted sentencing disparities, a sentence of ... 235 months” was appropriate. R.572 at 17. Mr. Malone is correct that the district court never articulated the words “170 months” or explicitly weighed a 170-month sentence against a 235-month sentence. Such a recitation, however, was not necessary where the district court considered the arguments advanced by the defendant in the course of arriving at a sentence. The cases cited by Mr. Malone do not support his argument. In United States v. Steward, 339 Fed.Appx. 650 (7th Cir.2009), the “court’s entire § 3553(a) analysis consisted] of a fragment of a sentence, where it mentioned] in passing that it considered the statutory factors.” Id. at 653. Here, the district court’s analysis consisted of much more than that, and it was quite adequate. Similarly, in United States v. Hopkins, 338 Fed.Appx. 528 (7th Cir. 2009), the district court said nothing about the facts of the case, but only made a general statement that the defendant’s request was “not persuasive ... under the facts and circumstances of this case.” Id. at 529. Here, by contrast, the district court extensively considered the facts of the case. This case is more analogous to United States v. Allday, 542 F.3d 571 (7th Cir. 2008). There, the district court considered the nature of the offense, the need to deter such offenses and the defendant’s individual circumstances. Id. at 573. We held that such a discussion was adequate to demonstrate that the district court had understood the nonbinding nature of the Guidelines, employed no presumption of reasonableness and considered the defendant’s arguments. Id. at 574. We reached this conclusion even though the court stated that “if it found the Guideline range ‘to be fair and reasonable,’ Allday would ‘be sentenced within that Guideline range.’ ” Id. at 573. In context, we held, this statement did not reflect a presumption of reasonableness. Id. at 574. Here, as we have stated, the district court explained the basis of the sentence in terms of § 3553(a) factors and Mr. Malone’s arguments. Nothing more was required. See Scott, 555 F.3d at 609 (finding no error where district court addressed defendant’s argument but found that other § 3553(a) factors called for “a significant term of imprisonment”); United States v. Panaigua-Verdugo, 537 F.3d 722, 728 (7th Cir. 2008) (finding no error where “district court engaged with [defendant’s] concerns” even while not addressing each § 3553(a) factor). We do not read Mr. Malone’s brief as advancing a substantive reasonableness argument. The Government does, however. We therefore give Mr. Malone the benefit of the doubt and address the substantive reasonableness of his sentence. We note that, for purposes of appellate review, a sentence within the Guidelines, such as that imposed here, is presumed to be reasonable. United States v. Noel, 581 F.3d 490, 500 (7th Cir.2009). We see nothing in the record or in Mr. Malone’s brief that rebuts that presumption in light of the thorough explanation given by the district court. The sentencing court is within its discretion to conclude that certain factors supporting a higher sentence outweigh other factors supporting a lower sentence. See United States v. Gallardo, 497 F.3d 727, 740 (7th Cir.2007) (holding sentence to be reasonable where mitigating factors did not outweigh countervailing factors). *128Conclusion For the foregoing reasons, we conclude that the district court committed no procedural or substantive error in sentencing Mr. Malone. Therefore, we affirm the sentence. AFFIRMED . Our jurisdiction is based on 28 U.S.C. § 1291. The district court's jurisdiction is based on 18 U.S.C. § 3231.	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8473910/	ORDER Ekrem Bajramoski, a citizen of Macedonia and a member of the Roma (gypsy) ethnic minority, applied for asylum and for withholding of his removal. The immigration judge (“IJ”) denied his application, finding that Mr. Bajramoski’s account of persecution was vague and did not establish a basis for relief. The Board of Immigration Appeals (“BIA” or “Board”) concurred and dismissed Mr. Bajramoski’s appeal. Mr. Bajramoski now petitions for review. Because the Board’s decision was supported by substantial evidence, we deny Mr. Bajramoski’s petition. Immigration officials initiated removal proceedings against Mr. Bajramoski after he was caught unlawfully entering the United States from Mexico. At his first removal hearing in May 2005, the IJ provided Mr. Bajramoski with a Macedonian interpreter, but Mr. Bajramoski used his uncle to translate the proceedings instead. Mr. Bajramoski testified at this hearing that he had traveled from Macedonia to the United States to escape his abusive father. Two months later, Mr. Bajramoski requested asylum and withholding of removal based on persecution he suffered because of his Roma ethnicity. At Mr. Bajramoski’s second removal hearing, he, through counsel, informed the IJ that he speaks Albanian. Accordingly, at his third removal hearing in January 2006, Mr. Bajramoski was provided with an Albanian interpreter, but this time he, through counsel, stated that he needed a Macedonian interpreter after all. At Mr. Bajramoski’s final removal hearing in May 2007, the IJ provided him with a Macedonian interpreter, but Mr. Bajra-moski had difficulty understanding the interpreter. His uncle, who was present at the hearing, stated that Mr. Bajramoski spoke a mix of Macedonian, Albanian, and a third language, presumably Romani (the language spoken by ethnic Roma). The IJ contacted a different Macedonian interpreter who, along with Mr. Bajramoski’s uncle, assisted over the phone in translating the remainder of the hearing. Mr. 135Bajramoski then testified that he was born in Macedonia, where he had been living with his parents and working as a home repairman before he left for the United States. He stated that his parents and sister still live in Macedonia. When the IJ asked him why he did not want to return to Macedonia, Mr. Bajramoski replied that, as a Roma, he had difficulty finding work and experienced difficulties with law enforcement. Although he alluded to attacks during a local election against his family members, he admitted that he had not been personally arrested or attacked. Moreover, when pressed to recount any incidents of persecution, he could not provide a specific example. He concluded by saying that he is afraid of Macedonians and Albanians, who want to expel Roma from the country. After the hearing, the IJ found that Mr. Bajramoski did not qualify for asylum because, despite evidence of general mistreatment of Roma by the majority Macedonian population, Mr. Bajramoski presented no evidence that he personally suffered past persecution. The IJ also found that Mr. Bajramoski failed to establish a reasonable fear of future persecution, especially in light of the fact that discrimination against Roma had not prevented him from attending school and having a job. Finally, the IJ determined that, because Mr. Bajramoski failed to satisfy the lower burden of proof required for asylum, he could not satisfy the more stringent standards required for withholding of removal and protection under the Convention Against Torture. Mr. Bajramoski appealed to the BIA, which dismissed the appeal. The BIA determined that Mr. Bajramoski had failed to establish past persecution because he admitted that he had never been arrested or harmed. The BIA also noted that Mr. Bajramoski had never reconciled his initial reason for leaving Macedonia (his abusive father) with his current claim of ethnic discrimination. Furthermore, the BIA found his fear of future persecution to be unreasonable given that his parents and sister have remained in Macedonia unharmed. Finally, the BIA addressed Mr. Bajramoski’s argument that he was denied a fair hearing because the IJ failed to provide an adequate interpreter. The BIA concluded that the IJ corrected the initial interpretation problems at the May 2007 hearing and went on to conduct the removal proceedings fairly. The BIA noted that Mr. Bajramoski had not pointed to any facts that the interpreter prevented him from presenting at his hearing. In his petition for review, Mr. Bajramo-ski first argues that the BIA and IJ erred in denying his applications for asylum and withholding of removal. He asserts that he established past persecution and a well-founded fear of future persecution due to his membership in a particular social group — the Roma ethnic minority — and the pattern of harassment and discrimination against Roma in Macedonia. Mr. Bajramoski does not point to specific findings or determinations by the IJ or BIA that were erroneous; his brief essentially restates the sparse facts that he provided in his asylum application and in his testimony at the removal hearing. When the BIA issues its own opinion, as it did here, as opposed to adopting or merely supplementing the opinion of the IJ, we review only the opinion of the BIA. Moab v. Gonzales, 500 F.3d 656, 659 (7th Cir.2007). We shall uphold the BIA’s decision if it is “supported by reasonable, substantial, and probative evidence on the record considered as a whole.” INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992) (internal quotation marks and citation omitted); Chatta v. 136Mukasey, 523 F.3d 748, 751 (7th Cir.2008) (same). In order to qualify for asylum, an applicant has the burden of establishing that he is a refugee, 8 U.S.C. § 1158(b)(1), which is defined as an individual who is unable or unwilling to return to his home country because of past persecution or a well-founded fear of future persecution on the basis of “race, religion, nationality, membership in a particular social group, or political opinion.” Id. § 1101(a)(42). An asylum applicant who proves past persecution is entitled to a rebuttable presumption that he has a well-founded fear of future persecution. 8 C.F.R. § 208.13(b)(1); see also Haxhiu v. Mukasey, 519 F.3d 685, 690 (7th Cir.2008). Mr. Bajramoski contends that he presented evidence of past persecution on the basis of his Roma ethnicity. He asserts that there is “uncontroverted evidence” showing “a pattern of discrimination and violence against the Roma population of Macedonia,” Pet. Br. 20, but he does not substantiate that assertion with specific facts, nor does he point to any incidents showing that he personally suffered persecution. See Ayele v. Holder, 564 F.3d 862, 868 (7th Cir.2009) (“Ayele admits that the government never personally persecuted her, so to succeed on her asylum petition she must show a well-founded fear of future persecution.”). Mr. Bajramoski cites various country reports as evidence that the attitude of the population in Macedonia is hostile to Roma, but “generalized evidence in a country report is” insufficient to support a grant of asylum. Chen v. Gonzales, 457 F.3d 670, 674 (7th Cir.2006) (internal quotation marks and citation omitted). Moreover, his conclusory testimony regarding harm that he and his family suffered on account of their Roma ethnicity was also too vague to support a finding of past persecution. See Thap v. Mukasey, 544 F.3d 674, 681-82 (6th Cir. 2008); Dandan v. Ashcroft, 339 F.3d 567, 573-74 (7th Cir.2003). As an alternative basis for asylum, Mr. Bajramoski submits that he has a well-founded fear of future persecution. He asserts that at his removal hearing he “clearly and credibly explained how he feared returning to Macedonia,” Pet. Br. 23, but again he cites to no specific facts in the record showing that his fear of future persecution is reasonable. See Roman v. INS, 233 F.3d 1027, 1034 (7th Cir.2000) (requiring applicant to present specific facts in order to meet his burden of establishing fear of persecution). Also, the fact that his immediate family remains in Macedonia unharmed further undercuts the reasonableness of his fear of future persecution. See Ambati v. Reno, 233 F.3d 1054, 1061 (7th Cir.2000); Bhatt v. Reno, 172 F.3d 978, 982 (7th Cir.1999). Thus, the BIA’s finding that Mr. Bajramoski failed to show past persecution or a reasonable fear of future persecution is supported by the record. Because Mr. Bajramoski has not demonstrated that he qualifies for asylum, moreover, he cannot meet the more stringent test for withholding of removal. See Soumare v. Mukasey, 525 F.3d 547, 552 (7th Cir.2008). Mr. Bajramoski also contends that the BIA erred in rejecting his due process claim. He correctly notes that he had a due process right to an interpreter at his final removal hearing. Nazarova v. INS, 171 F.3d 478, 484 (7th Cir.1999). He maintains that the IJ did not provide adequate interpreters at his final removal hearing in May 2007. At the hearing in question, he was provided with a Macedonian interpreter, but it was unclear what Mr. Bajramoski’s best language was. However, Mr. Bajramoski was able to testify at the hearing with translation help from his uncle and the second Macedonian *137interpreter provided by the IJ. Therefore, this argument fails because Mr. Bajramoski does not point to any mistranslation that prejudiced his case. See Kuqo v. Ashcroft, 391 F.3d 856, 858 (7th Cir.2004); Capric v. Ashcroft, 355 F.3d 1075, 1088 (7th Cir.2004). The petition for review is denied.	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8473912/	ORDER Dossie Sanders pleaded guilty to various drug-trafficking and firearms charges, see 18 U.S.C. §§ 841(a)(1), 841(b)(1)(B), 922(g)(1), 924(c)(1), but reserved the right to appeal the district court’s denial of his three motions to suppress evidence. The district court sentenced him to ninety-eight months’ imprisonment. Sanders filed a notice of appeal, but his appointed counsel now seeks to withdraw pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), because she cannot identify any nonfrivolous ground for appeal. We confine our review to the potential issues identified in counsel’s facially adequate brief, see United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir.2002), and Sanders’ submission in response, see Cir. R. 51(b). We grant counsel’s motion and dismiss Sanders’ appeal. Sanders went to the Birds’n Brooks Army Navy Surplus store in Springfield, Illinois, and tried to buy ammunition for a Sig Sauer P229 firearm marked “restricted law enforcement use only.” He requested the wrong type of ammunition and could not produce the Firearm Owner’s Identification (“FOID”) card that Illinois requires for a person to possess a firearm or purchase ammunition, although his wife offered hers. Two employees provided police with his description and license-plate number. Eventually the officers located Sanders at his home and arrested him there. They summoned the store employees to the scene to perform a “showup” identification. The employees identified Sanders, who was in handcuffs at the time. The officers then applied for a warrant to search Sanders’ house. The warrant that issued did not mention the Sig Sauer P229 described in the application but instead authorized the seizure of “any and all firearms.” The officers who executed the warrant discovered a safe inside Sanders’ bedroom that contained the Sig Sauer P229, three other firearms, fourteen baggies containing a total of 179.6 grams of powder cocaine, nine baggies containing a total of 25.5 grams of cocaine base, 20 grams of marijuana, firearm accessories, and $5,380 in cash. The officers also seized a firearm, ammunition, and $4,465 in cash from the top of a bedroom dresser and another firearm and more ammunition from a bedroom bookshelf. From the kitchen, the officers seized a digital scale, weights, and a bottle of inositol powder. Sanders then filed three motions to suppress evidence, but the district court denied each one. Sanders pleaded guilty but reserved the right to appeal the district court’s denial of those three motions. At the outset, we note that Sanders does not wish to withdraw his guilty plea, so counsel properly refrains from examining the adequacy of the plea colloquy or the voluntariness of the plea. See United States v. Knox, 287 F.3d 667, 670-72 (7th Cir.2002). We also agree with counsel that it is not necessary to examine the reasonableness of Sanders’ sentence, as his plea agreement does not permit him to appeal that issue. Counsel first considers challenging whether Sanders’ warrantless arrest was supported by probable cause. In the district court, Sanders had argued that the officers lacked sufficient information to be*139lieve he had committed a crime. But the district court disagreed, finding that the officers’ investigation had produced “an abundance” of supporting evidence to arrest Sanders for possession of a stolen firearm, possession of a firearm without a valid FOID card, and being a felon in possession of a firearm. Counsel is correct that pursuing this issue would be frivolous. Given the facts known to the officers when they arrested Sanders, they could reasonably have believed he had committed several crimes. See Shipman v. Hamilton, 520 F.3d 775, 778 (7th Cir. 2008). Counsel next considers a due-process challenge to the showup identification. In the district court, Sanders had argued that his showup identification was unduly suggestive and unreliable. The district court acknowledged that the showup identification was suggestive but disagreed that the store employees’ identification was unreliable, finding that their opportunity to observe Sanders in the store with a heightened degree of attention ensured the reliability necessary to satisfy due process. As counsel properly notes, testimony concerning even an unduly suggestive showup identification is constitutionally permissible if the identification is nevertheless reliable. United States v. Hawkins, 499 F.3d 703, 707 (7th Cir.2007). And the district court’s factual findings strongly support the conclusion that the store employees’ identification was indeed reliable. We agree that pursuing this issue would be frivolous. Finally, counsel considers mounting a challenge to the particularity of the search warrant. In the district court, Sanders had argued that the warrant was not sufficiently particularized because its broad authorization to seize “any and all firearms” sanctioned a unrestrained rummaging through the Sanders’ house and permitted seizure of firearms legally possessed by Sanders’ wife. But the district court rejected that argument too, reasoning that Sanders — as a felon — was prohibited from owning any firearms at all and that there was reason to believe Sanders might have other prohibited guns at his house. We agree with counsel that pursuing this issue would be frivolous. If a felon is forbidden to possess any firearms, then a warrant authorizing seizure of any and all firearms from his house is not vague or overbroad; it tells the executing officers precisely what to search for. United States v. Campbell, 256 F.3d 381, 389 (6th Cir.2001). And in any event, Sanders “would have been no better off’ had the warrant been as particularized as he contends, for even then the officers would have executed precisely the same search and uncovered precisely the same evidence. See United States v. Sims, 553 F.3d 580, 584 (7th Cir.2009). We GRANT the motion to withdraw and DISMISS the appeal.	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8473914/	ORDER The defendant appellant Richard Sweit-zer pleaded guilty to conspiring to distribute more than 100 grams of heroin, see 21 U.S.C. §§ 846, 841(a)(1), and received a within-guidelines range sentence of 46 months’ imprisonment. On appeal Sweit-zer argues that the district court failed to consider his arguments for a below-range sentence and erroneously presumed the reasonableness of the guidelines sentence. We affirm the sentence imposed by the district court as we are convinced after review that the court properly considered the § 3553(a) factors and that there is no evidence in the record substantiating that the court presumed that the guidelines were reasonable. I. Background Sweitzer, an admitted heroin dealer, was engaged in facilitating the transfer of heroin totaling at least 400 grams but no more than 700 grams between a Milwaukee dealer and a buyer in Chicago. He admitted to engaging in approximately twenty-five such transactions, beginning in 2007. His role as the middle-man consisted of Sweitzer’s acceptance of the cash wire transfers from his Chicago buyer and receiving the drugs from his dealer at a designated location in Milwaukee. He would then meet his Chicago buyer to arrange for the delivery of the heroin. After being implicated by his Milwaukee accomplice, Sweitzer was arrested in Milwaukee. At the time of his arrest, Sweitzer decided to cooperate with the officers and assisted in the arrest of his Chicago accomplice and shared pertinent information with the Milwaukee authorities covering the nature of their relationship. At this time, Sweitzer pleaded guilty to conspiring to distribute more than 100 grams of heroin. See 21 U.S.C. §§ 846, 841(a)(1). The Probation Officer’s presentence investigation report concluded that based on the quantity of heroin, Sweitzer had a base offense level of 28 and proposed a two-level reduction pursuant to U.S.S.G. § 2D1.1(b)(11), he qualified for the safety-valve exception, and a three-level reduction pursuant to U.S.S.G. § 3E1.1 for acceptance of responsibility. Thus, Sweitzer’s offense level of 23 and his Category I criminal history produced a guideline range of 46 to 57 months imprisonment. The district court imposed a within-guideline sentence of 46 months imprisonment followed by three years of supervised release. At sentencing, the court discussed the lethal effects of heroin use and trafficking and the need for more adequate deterrence. The court also discussed several of Sweitzer’s personal characteristics that were considered in the decision-making process, including Sweitzer’s family, anger problems, drug addiction, and need for counseling at sentencing. The court also referred to Sweitzer’s opportunity to take advantage of the safety valve exception, his lack of criminal history, his cooperation with the police and was satisfied and persuaded “that in this particular case the defendant will be justly punished and deterred, and the public will certainly be fully advised of this Court’s view of ... dealing” with heroin. II. Analysis A. Sweitzer’s Arguments for a Below-Range Sentence. On appeal, Sweitzer insists that the court erroneously failed to consider his 142non-frivolous arguments for a below-range sentence. Initially, Sweitzer argues that the court ignored his argument that quantity-driven drug sentencing is inherently flawed and furthermore that the court must disregard quantity-driven drug sentencing because it is not the product of careful study based on empirical evidence derived from individual sentencing decisions. “[W]e do not think a judge is required to consider ... an argument that a guideline is unworthy of application in any case because it was promulgated without adequate deliberation.” United States v. Aguilar-Huerta, 576 F.3d 365, 367-68 (7th Cir.2009) (emphasis original); see also United States v. Huffstatler, 571 F.3d 620, 623-24 (7th Cir.2009) (stating that district courts may impose a sentence below the child-pornography guidelines based on a disagreement with them, but district courts are not required to do so). In Aguilar-Huerta, this court reasoned that if a judge is required to delve into the history of a guideline to satisfy himself that the process that produced it was adequate, sentencing hearings will become unmanageable and shift the focus from the defendant’s conduct to the legislative history of the guidelines. Aguilar-Huerta, 576 F.3d at 368. Thus, the court was not required to consider this argument. Next, Sweitzer argues that the court committed procedural error when it failed to consider his mitigating circumstances under 18 U.S.C. § 3553(a) that distinguished his case from comparable drug cases. He contends, for example, that his case differs from comparable drug cases for three reasons: (1) he had only one customer who personally consumed the heroin; (2) neither he, nor any of the other known participants in the drug ring, used, attempted, or threatened violence or were connected to any firearm or other weapon; and (3) he faced considerable economic pressure as a heroin addict and he was offered a premium to deliver drugs. Sweitzer argues that the district court failed to consider the § 3553(a) factors during his sentencing. We disagree. The district judge is not required to apply each of the § 3553(a) factors mechanically or in a “checklist fashion, but instead in the form of an adequate statement of the judge’s reasons, consistent with § 3553(a), for thinking the sentence that he has selected is indeed appropriate for the particular defendant.” United States v. Dean, 414 F.3d 725, 729 (7th Cir.2005). The judge did just that here. He certainly considered the nature and circumstances of the offense, § 3553(a)(1), when he observed that heroin trafficking was a serious crime and that Sweitzer’s involvement contributed to the growing demand for the drug. He also considered Sweitzer’s personal history and characteristics, § 3553(a)(1), when he acknowledged that Sweitzer can take advantage of the safety valve exception, had lifelong issues of drug abuse, family problems, and suffered from depression. He added that Sweitzer would benefit from counseling as part of supervision. See also § 3553(a)(2)(D). And he concluded that the 46-month sentence was necessary to protect the public and provide deterrence. B. Presuming the Reasonableness of the Guidelines. Sweitzer next asserts that the court improperly applied a presumption of reasonableness to the guidelines. At sentencing, the court made generic statements about the dangers of heroin and the need for more effective deterrence in drug eases. These generic statements, according to Sweitzer, demonstrate the court’s belief that cases involving heroin distribu143tion must be decided according to the guidelines. The district court did not apply a presumption of reasonableness to the guidelines. See United States v. Allday, 542 F.3d 571, 572-73 (7th Cir.2008). As Sweit-zer concedes, “nothing about the district court’s remarks upon imposition of [the] sentence include an expressed belief that the guidelines are presumptively reasonable ...” Indeed, the sentencing transcript establishes that the court did not apply a presumption of reasonableness. The court commented on the need for deterrence not in the context of the guidelines, but in responding to Sweitzer’s general request for leniency in drug sentencing. Moreover, the judge’s stated explanation for the sentence shows that he was well aware and appreciated the advisory nature of the guidelines: he considered and referred to Sweitzer’s drug involvement as a young man, his family life, emotional difficulties, lack of a criminal history, decision to cooperate, and the general need for deterrence. See, e.g., 18 U.S.C. § 3553(a)(2)(B); United States v. Gooden, 564 F.3d 887, 891 (7th Cir.2009). Such consideration confirms that the court sentenced Sweitzer on the basis of the § 3553(a) factors, and not a presumption of reasonableness. Conclusion We affirm the decision of the district court.	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8473923/	MEMORANDUM ** Frank and Elaine Kimball appeal the district court’s memorandum order dismissing their complaint, which seeks various forms of tax relief, for want of subject-matter jurisdiction. We have appellate jurisdiction under 28 U.S.C. § 1291, and we affirm. The facts are familiar to the parties, so we do not repeat them here. As a threshold matter, it was proper for the district court to resolve factual disputes when ruling on the motion to dismiss for lack of subject-matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1). Thornhill Publ’g Co. v. Gen. Tel. & Elecs. Corp., 594 F.2d 730, 733 (9th Cir.1979). The Kimballs assert that a number of statutes not only provided the district court with jurisdiction but also waived the sovereign immunity of the United States. All of their asserted bases for jurisdiction fail. The district court lacked jurisdiction under 28 U.S.C. § 1346(a) for each of the years in question because the Kimballs had either failed to exhaust administrative remedies, pay all of the assessment, or timely sue. See Flora v. United States, 362 U.S. 145, 177, 80 S.Ct. 630, 4 L.Ed.2d 623 (1960) (full payment of assessment required prior to suit in federal district court); I.R.C. (26 U.S.C.) § 7422(a) (administrative claim requirement); id. at § 6511(a) (statute of limitations). Because section 1346(a) is a waiver of sovereign immunity, failure to comply with its prerequisites means that the district court had no jurisdiction to hear the matter. See United States v. Dalm, 494 U.S. 596, 601-02, 110 S.Ct. 1361, 108 L.Ed.2d 548 (1990). The district court lacked jurisdiction under I.R.C. § 7433 because the claims were not filed within the two-year statute of limitations. Accordingly, the district “court lacked jurisdiction to hear” the Kimballs. Conforte v. United States, 979 F.2d 1375, 1377 (9th Cir.1992). The same problem exists under I.R.C. § 7432. Likewise, the Kimballs allege a violation of I.R.C. § 6304, but the remedy for violations of that statute is governed by § 7433. The Kimballs rely on 28 U.S.C. § 2410 as a basis for jurisdiction. However, this argument was not raised before the district court, and we deem the argument waived. Jurisdiction is lacking under the Declaratory Judgment Act because its coverage explicitly excludes federal tax matters (subject to exceptions not relevant here). 28 U.S.C. § 2201. Injunctive relief is barred by I.R.C. § 7421(a); the Kim-balls’ argument that they are entitled to proceed under § 7426(a) was only presented in their reply brief and is thus waived. *172Section 6330 of the I.R.C. provides for collection due process (“CDP”) hearings, but nothing in the record suggests the Kimballs ever timely requested a CDP hearing and were denied one. The district court lacked jurisdiction over the Kimballs’ claim that the IRS wrongly refused to abate interest under I.R.C. § 6404(e)(1). Hinck v. United States, 550 U.S. 501, 503, 127 S.Ct. 2011, 167 L.Ed.2d 888 (2007) (holding that jurisdiction over that section exists exclusively in the Tax Court). I.R.C. § 6621 does not provide a cause of action or waive the sovereign immunity of the United States. Finally, because the Kimballs did not sue any federal officials in their individual capacities, they cannot bring an action under Bivens v. Six Unknown Named Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). AFFIRMED. This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8473927/	MEMORANDUM ** Ernest Lemaefe Tofi appeals from the 108-month sentence imposed following his guilty-plea conviction for attempt to possess with intent to distribute 500 grams or more of cocaine and conspiracy to possess with intent to distribute 500 grams or more of cocaine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B), and 846. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm. Tofi contends that the district court erred by attributing quantities of cocaine to him based on money seized from a co-conspirator’s safe. The district court did not clearly err in calculating the drug quantity for which Tofi was responsible. See United States v. Alvarez, 358 F.3d 1194, 1212-13 (9th Cir.2004); see also United States v. Kilby, 443 F.3d 1135, 1142 (9th Cir.2006). Tofi’s contentions that the district court improperly shifted the burden of proof from the government, and violated Federal Rule of Criminal Procedure 32 by failing to resolve disputed issues as to drug quantity lack merit. See United States v. Gutierrez-Hernandez, 94 F.3d 582, 585 (9th Cir.1996). Tofi also contends that the district court erred by failing to reduce his offense level *175based on a third level point for acceptance of responsibility because the government’s failure to move for the reduction was arbitrary, and that the government and district court misapprehended the law. This contention is without merit. See United States v. Espinoza-Cano, 456 F.3d 1126, 1136-38 (9th Cir.2006). Tofi’s unopposed motion to strike specified portions of the supplemental excerpts of record is granted. AFFIRMED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8477218/	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.	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8473895/	ORDER Raymond Ryals brokered the sale of one ounce of crack cocaine to a confidential informant, for which he sought to earn $50. A jury ultimately convicted him of distributing a controlled substance in violation of 21 U.S.C. § 841(a)(1), and the district court sentenced him to 365 months’ imprisonment. On January 10, 2008, we remanded after finding that the district court had abused its discretion by failing to make an adequate inquiry into the breakdown of communication between Ryals and his attorney before denying Ryals’s motion for new counsel prior to his sentencing hearing. See United States v. Ryals, 512 F.3d 416, 421 (7th Cir.2008). On remand, after conducting a new sentencing hearing with new defense counsel, the district court determined that Ryals qualified as a career offender, see U.S.S.G. § 4Bl.l(a), and sentenced him to 300 months’ imprisonment. The court’s sentence fell below the career offender guideline range of 360 months to life. At his *103sentencing hearing, Ryals provided the district court with a pro se sentencing memorandum that asked the court to consider the crack/powder disparity in arriving at an appropriate sentence. Ryals now contends that the district court abused its discretion by failing to explicitly address his argument that the crack/powder disparity should constitute a mitigating factor in the court’s determination of his sentence. We need not reach the question of whether the sentencing court failed to address Ryals’s disparity argument, however, because the court had no authority to sentence Ryals, a career offender, to less time based on its policy disagreement with the crack/powder disparity. See United States v. Welton, 583 F.3d 494, 496-97 (7th Cir. 2009). Therefore, we affirm his sentence.	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8473897/	ORDER Cecil Watson, who is African-American, worked for the United States Postal Service for 22 years before he was fired in 2006. He sued his former employer for employment discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., claiming race discrimination and retaliation. The district court granted summary judgment in favor of the Postal Service. We affirm. Watson’s suit arises from clashes with his supervisor, Kenneth Michalowski. Watson, who became manager of the Hoffman Estates branch of the Schaum-burg post office in 2002, reported directly to the postmaster of the Schaumburg post office, a position Michalowski assumed in April 2004. In January 2005, Michalow-ski issued Watson a warning letter for refusing to follow orders to authorize payment to a supervisor. The following month Michalowski issued Watson another warning letter after he left work before all of the letter carriers had returned from their routes, in violation of a directive from Michalowski. In September, Watson received a third warning letter for not following instructions to maintain the “overtime-desired lists” and “annual leave boards” for workers at the Hoffman Estates facility. In October, Watson received a poor rating from Michalowski on his year-end merit evaluation. Watson’s discharge stemmed from events surrounding the handling of suspected hazardous substances. In November 2005 an employee called Watson at home and informed him of a suspicious powder found at the bottom of a package. Although Postal Service policy in such a situation was not to handle the suspicious package, but to isolate it and clear the area, Watson instructed the employee to put some of the powder in a cup and pom-water over it to see if it would foam, 105indicating the presence of detergent and not something more sinister. The next day, after confirming the instructions Watson had given, Michalowski removed Watson from his position as manager and reassigned him to the Schaumburg facility under Michalowski’s direct supervision. On his first day at the Schaumburg facility, Watson went home sick. Michalowski incorrectly marked him absent without leave instead of on sick leave, but later corrected the error so that Watson received his proper salary on his scheduled pay date. Watson later sought leave at Thanksgiving and Christmas in 2006, but those requests were denied. Watson reported to work only four times after being assigned to the Schaumburg facility — twice in December 2005, once in early February 2006, and once in March— and on each of his last three appearances spoke only briefly to Michalowski before leaving. Michalowski filed a proposal to terminate Watson on March 31, and Watson’s termination took effect on June 3. Watson filed this suit under Title VII. He claimed that each of the events he described — the letters of warning, his poor year-end evaluation, being relieved of his duties as manager, being deemed AWOL instead of on sick leave, the denial of his leave requests, and Michalowski’s proposal that he be fired — constituted race discrimination. He also claimed that each of the events constituted retaliation. The district court granted summary judgment to the Postal Service, finding that Watson failed to establish his race-discrimination and retaliation claims because some of the actions he complained of were not materially adverse, and because he offered no evidence to show an improper motive behind the Postal Service’s actions. Watson argues on appeal that he presented sufficient evidence to establish a prima facie case of race discrimination under the indirect burden-shifting method described in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). To establish a prima facie case of race discrimination under Title VII, Watson must show that: (1) he is a member of a protected class; (2) his job performance met the Postal Service’s legitimate expectations; (3) he was subject to a materially adverse employment action; and (4) the Postal Service treated similarly-situated employees outside his protected class more favorably. See McDonnell Douglas Corp., 411 U.S. at 802-04, 93 S.Ct. 1817; Winsley v. Cook County, 563 F.3d 598, 604 (7th Cir.2009). Our review is de novo. Hobbs v. City of Chicago, 573 F.3d 454, 460 (7th Cir.2009). There are three general categories of materially adverse actions that can support a Title VII claim: (1) cases in which an employee’s compensation, benefits or other financial terms of employment are diminished; (2) cases in which a transfer to a lateral position prevents an employee from using his skills and experience, thereby dimming the employee’s career prospects; and (3) cases in which a change in working conditions subjects an employee to a humiliating, unsafe, or otherwise significantly negative alteration in the employee’s workplace environment. Nagle v. Vill. of Calumet Park, 554 F.3d 1106, 1116 (7th Cir. 2009); see Herrnreiter v. Chicago Hous. Auth., 315 F.3d 742, 743-45 (7th Cir.2002). The district court correctly found that Watson could not establish an adverse employment action with regard to the warning letters, the performance evaluation, the denial of his leave requests, or Michalowski’s incorrectly marking him as AWOL. Although those actions might conceivably fall within the third category 106of adverse actions, concerning changes in working conditions, such changes must objectively create a hardship. Herrnreiter, 315 F.3d at 744. These cases typically involve employers’ making jobs unbearable for employees, or severe harassment that worsens employment conditions as perceived by a reasonable person. Id. at 745. Not “every trivial personnel action” that displeases an employee can form the basis of a discrimination suit, id., but that is all these four actions were. Although two of the Postal Service’s actions were materially adverse — the decision to relieve Watson of his managerial duties, and the decision to terminate him — Watson still cannot establish a prima facie case because he cannot show that his job performance met the Postal Service’s legitimate expectations. Regarding the loss of his managerial duties, as the district court explained, as of November 2005, Watson failed to meet the Postal Service’s legitimate expectations because he violated policy during the incident involving the suspicious powder. See Anders v. Waste Mgmt. of Wisc., 463 F.3d 670, 676 (7th Cir.2006) (holding that employee who did not follow employer’s established policy failed to meet legitimate expectations). As for his termination, the powder incident also provided a legitimate basis for that decision. Watson argues that the decision was not timely, in that it was made four months after the powder incident, but as the district court noted, the delay was not suspicious because Watson had essentially stopped working before Michalowski ultimately recommended his termination. Watson next argues generally that the district court erred in concluding that he could not establish unlawful retaliation, and that he can do so under the direct method of proof. See Argyropoulos v. City of Alton, 539 F.3d 724, 733 (7th Cir. 2008). But Watson cannot show a causal connection between any protected activity he engaged in and any adverse action. Watson suggests that Michalowski retaliated against him for contributing to an Equal Employment Opportunity complaint that led to the demotion of another postmaster in July 2004, but Michalowski disciplined Watson for disobeying orders or Postal Service policy, and such discipline was permissible in spite of Watson’s EEO activity. See Argyropoulos, 539 F.3d at 734 (holding that “inappropriate workplace activities are not legitimized by an earlier-filed complaint of discrimination”). Finally, any claim by Watson of retaliation under the indirect method of proof, see Stephens v. Erickson, 569 F.3d 779, 786-87 (7th Cir.2009), would similarly fail because, as discussed above, some of the actions the Postal Service took against him were not materially adverse, and because he did not perform his job satisfactorily. We therefore AFFIRM the judgment of the district court.	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8473899/	ORDER Nathan Gillis, a Wisconsin prisoner, pleaded guilty to two counts of sexual assault and one count each of reckless endangerment, kidnaping, and false imprisonment. In exchange for his plea, the prosecutor agreed to recommend no more than 12 years’ imprisonment. She kept her promise at Gillis’s sentencing hearing, and the state court sentenced him to a total prison term of 12 years on the sexual-assault and reckless-endangerment charges, but withheld sentence and imposed probation on the remaining charges. Gillis completed his prison sentence but later violated the terms of his probation. Although the prosecutor recommended 20 years’ imprisonment at the post-revocation sentencing hearing on the kidnaping charge, the court imposed a 12-year sentence. After exhausting his state remedies, Gillis filed a petition for a writ of habeas corpus, 28 U.S.C. § 2254, arguing, among other things, that the state breached the plea agreement by recommending imprisonment beyond the 12 years he had already served. The district court denied the petition, but we granted a certificate of appealability. We affirm the judgment of the district court. I. Background Gillis’s victim testified at trial that she was walking home at night when Gillis grabbed her from behind, forced her into his apartment, and raped her. Gillis insisted that the victim was a prostitute and the sex was consensual, but he nevertheless decided midway through the trial to enter an Alford plea on each of the five counts, meaning he pleaded guilty but maintained his innocence. See North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). He faced a maximum prison sentence of 47 years, but, in exchange for his plea, the state agreed to recommend no more than 12 years in prison. The terms of the plea agreement were not put in writing, but the prosecutor announced them on the record: [T]he state has agreed that it will not recommend more than twelve years in prison on one or more of the counts — a cap of twelve years in prison. But also it is agreed the defendant will accept probation on any or all the counts that the state argues for probation on, and any length of time in terms of probation can be argued. At sentencing the state recommended that the court impose consecutive sentences of five years’ imprisonment on each of the sexual-assault charges and two years’ imprisonment on the reckless-endangerment charge, for a total of 12 years, and withhold sentence but impose concurrent terms of 20 years’ probation on the kidnaping charge and six years’ probation on the false-imprisonment charge. The court adopted the recommendation. Gillis served his 12-year prison sentence and was released in September 2005, but when he refused to register as a sex offender, he was detained at Wisconsin’s 113Dane County jail, where his disorderly conduct led to revocation of his probation. At sentencing on the withheld kidnaping charge, the state recommended 20 years’ imprisonment, the statutory maximum, and the court imposed a 12-year prison sentence. On direct appeal Gillis argued, as relevant here, that the state violated the plea agreement by recommending a 20-year prison term at the post-revocation sentencing hearing. The state, he asserted, had agreed to recommend a total of 12 years’ imprisonment for all five counts. And, because Gillis had already served his 12-year prison term, he argued, any further sentencing recommendation violated the plea agreement. The Wisconsin Court of Appeals disagreed, explaining that when a plea agreement does not expressly extend beyond the original sentencing, its terms do not apply to sentencing after revocation of probation. The Wisconsin Supreme Court denied Gillis’s petition for review. Gillis filed a petition for a writ of habeas corpus attacking his sentence, but the district court denied the petition. We granted a certificate of appealability on the question whether Gillis’s sentence violated his right to due process because the state breached the plea agreement by recommending a 20-year sentence at his postre-vocation sentencing hearing. II. Analysis We review de novo the district court’s decision to deny Gillis’s petition for a writ of habeas corpus. See Pole v. Randolph, 570 F.3d 922, 933-34 (7th Cir.2009). To prevail, Gillis must demonstrate that the Wisconsin appellate court’s decision either was based on an unreasonable determination of the facts in light of the evidence, or was contrary to or involved an unreasonable application of clearly established federal law as determined by the Supreme Court. See 28 U.S.C. § 2254(d)(1)-(2); Hartjes v. Endicott, 456 F.3d 786, 789-90 (7th Cir.2006). In pursuing his due-process argument, Gillis first contends that the Wisconsin appellate court’s conclusion that the terms of the plea agreement were limited to the original sentencing proceeding is an unreasonable determination of fact. The terms of a plea agreement are questions of fact, United States v. Williams, 198 F.3d 988, 992 (7th Cir.1999), and we presume a state court’s factual findings to be correct absent clear and convincing evidence to the contrary, § 2254(e)(1). At Gillis’s change-of-plea hearing, the prosecutor stated on the record that she would “not recommend more than twelve years in prison on one or more of the counts.” Gillis interprets this to mean that the state’s promise was linked, not to the original sentencing, but instead to the counts of conviction. Thus, according to Gillis, the state’s promise to restrict its sentencing recommendation was binding at any future sentencing related to those counts. And, because the prosecutor recommended 12 years — the promised maximum — at his original sentencing, Gillis insists that the state could not recommend additional imprisonment under any circumstances. Even assuming that Gillis’s interpretation of the plea agreement is plausible, he has not presented any convincing evidence, as he must, that the Wisconsin appellate court’s contrary interpretation is unreasonable. A plea agreement is a contract, and its terms are interpreted according to ordinary contract principles. United States v. Artley, 489 F.3d 813, 824 (7th Cir.2007). The state’s obligations under a plea agreement “are limited by what the parties in fact agreed to.” United States v. Lezine, 166 F.3d 895, 901 (7th Cir.1999). Here, the plea agreement did 114not expressly restrict the prosecutor’s freedom to recommend a particular sentence in the event that Gillis’s probation was revoked, and there is no evidence of an off-the-record agreement that the state would remain silent at a post-revocation sentencing healing. Indeed, Gillis’s suggested interpretation would render the plea agreement internally inconsistent. Although the prosecutor agreed to recommend no more than 12 years in prison, she reserved the right to recommend any .length of probation on the remaining counts. If Gillis’s interpretation of the plea agreement is correct, the state reserved its right to recommend a 20-year term of probation while simultaneously promising not to recommend further imprisonment if Gillis’s probation was revoked — a result that would seemingly undermine the purpose of recommending probation at all. See United States v. Barnett, 415 F.3d 690, 692 (7th Cir.2005) (explaining that plea agreement should not be interpreted in manner that would produce result the parties were unlikely to have agreed to). The Wisconsin Court of Appeals based its decision on state precedent that the terms of a plea agreement do not extend to a sentencing after revocation of probation absent an express agreement otherwise. See State v. Window, 169 Wis.2d 341, 485 N.W.2d 832, 835 (1992). The same conclusion has been reached by the supreme courts of at least two other states. See People v. Segura, 44 Cal.4th 921, 80 Cal. Rptr.3d 715, 188 P.3d 649, 658 (2008); Peltier v. State, 657 N.W.2d 238, 244 (N.D. 2003). Further, several courts have rejected a defendant’s proffered interpretation of a plea agreement where, as here, that reading would undermine the purpose of probation. See United States v. Gerace, 997 F.2d 1293, 1295 (9th Cir.1993) (“Probation would be a useless implement in the criminal justice process if it could not be revoked. It would be inconsistent for the prosecution to agree to a bargain that would defeat the purpose of probation.”); United States v. Brown, 583 F.2d 915, 917 (7th Cir.1978) (“If revoking probation when a defendant violates its terms breaches a plea bargain granting probation, then restrictions on probation in effect would be unenforceable.”); United States v. Chen, 837 F.Supp. 1225, 1227 (S.D.Fla.1993) (“[I]t would be an inconsistent, and counter-intuitive interpretation of the plea agreement to rule that the prosecution had agreed to a bargain that defeats the very purpose of the sentence that they sought to obtain.”), aff'd without opinion by 25 F.3d 1061 (11th Cir.1994). Given the weight of authority supporting the Wisconsin appellate court’s conclusion that the plea agreement did not extend beyond the original sentencing, Gillis cannot demonstrate that the determination was unreasonable. This conclusion forecloses Gillis’s second argument — that the outcome reached by the Wisconsin Court of Appeals is contrary to the Supreme Court’s decision in Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971). In exchange for the defendant’s guilty plea in Santobello, the prosecutor agreed to refrain from making a sentencing recommendation. Id. at 258, 92 S.Ct. 495. That prosecutor, however, was replaced before sentencing, and the new prosecutor recommended the maximum sentence, which the court imposed. Id. at 259-60, 92 S.Ct. 495. The Supreme Court remanded the case to the state courts, concluding that “when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration,” the prosecutor must fulfill that promise. Id. at 262, 92 S.Ct. 495. Santobello thus stands for the general proposition that the government must *115keep its end of a plea bargain; it does not address the more narrow question whether the terms of a plea agreement extend to sentencing after revocation of probation. And because the Wisconsin appellate court reasonably determined that the terms of the plea agreement in this case were limited to the original sentencing proceeding, its conclusion that the government satisfied its obligations under the plea agreement is not at odds with Santobello. See Knowles v. Mirzayance, — U.S. —, 129 S.Ct. 1411, 1420, 173 L.Ed.2d 251 (2009) (explaining that when Supreme Court precedent establishes general standard, state courts have greater latitude to reasonably determine that defendant has not satisfied that standard). III. Conclusion Accordingly, we AFFIRM the judgment of the district court.	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8473903/	ORDER Timothy Day, Jr., robbed three banks in less than two weeks. During the robber118ies, Day posted at least one lookout outside, warned bank employees that he had a gun, and told the tellers not to give him any “funny money.” A week after the third robbery, Day was arrested outside another bank he and his cohorts were casing. He pleaded guilty -without a plea agreement to three counts of bank robbery, 18 U.S.C. § 2113(a), and was sentenced to 51 months’ imprisonment. Day filed a notice of appeal, but his appointed lawyers have concluded that the case is frivolous and seek to withdraw under Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). We invited Day to respond to counsel’s motion, though he did not. See Cir. R. 51(b). Our review is limited to the potential issues identified in counsel’s facially adequate brief. See United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir.2002). Counsel initially advise that Day does not want his guilty pleas vacated, and so the lawyers properly omit any discussion of the adequacy of the plea colloquy or the voluntariness of the pleas. See United States v. Knox, 287 F.3d 667, 670-72 (7th Cir.2002). Counsel have considered arguing that Day’s prison sentence is unreasonable. The district court set Day’s total offense level at 24, which includes a two-level increase for robbing a financial institution, U.S.S.G. § 2B3.1(b)(l), a two-level increase for making a “threat of death” during one of the robberies, id. § 2B3.1 (b)(2)(F), a three-level increase for multiple counts, id. § 3D1.4, and a three-level reduction for acceptance of responsibility, id. § 3El.l(a). Day’s offense level, combined with his Category I criminal history, produced a guidelines imprisonment range of 51 to 63 months. The district court evaluated the factors in 18 U.S.C. § 3553(a) and concluded that a sentence at the low end of that range was both appropriate and a “real bargain” for Day. The court was not persuaded that Day’s disadvantaged childhood, his cooperation with authorities after his arrest, or his expressions of remorse merited a lower prison term given the number of robberies and his use of a gun each time. The sentence imposed is within the guidelines range and thus presumptively reasonable, United States v. Panaigua-Verdugo, 537 F.3d 722, 727 (7th Cir. 2008), and Day’s lawyers are unable to articulate any basis for disregarding that presumption. It does not matter, as counsel recognize, that Day received a stiffer prison term than one of his lookouts; Day was the one who entered the banks and threatened their employees with a gun, and, more importantly, a difference when measured against the sentence of a codefendant for arguing that a prison term is unreasonable is not a valid basis for arguing that a prison term is unreasonable. See, e.g., United States v. Omole, 523 F.3d 691, 700 (7th Cir.2008); United States v. Vaughn, 433 F.3d 917, 926 n. 14 (7th Cir. 2006); United States v. White, 406 F.3d 827, 837 (7th Cir.2005). Accordingly, we agree with counsel that challenging the reasonableness of Day’s prison term would be frivolous. We also agree with counsel that Day cannot argue that the district court should have set a schedule for his payment of restitution while in prison.- A sentencing court is not required to, and generally should not, set a payment schedule covering the period of incarceration. See United States v. Hatten-Lubick, 525 F.3d 575, 581-82 (7th Cir.2008); United States v. Sawyer, 521 F.3d 792, 795 (7th Cir.2008). Finally, counsel consider whether Day could challenge the district court’s failure to specify the number of drug tests he must undergo while on supervised release. The district court should have set the number of required drug tests, 18 U.S.C. 119§ 3588(d); United States v. Bonanno, 146 F.3d 502, 511 (7th Cir.1998), but Day said nothing about the omission at sentencing, and the error is not one that we would correct on plain-error review. See United States v. Harvey, 484 F.3d 453, 458-59 (7th Cir.2007); United States v. Tejeda, 476 F.3d 471, 475 (7th Cir.2007). Thus, we agree with counsel that it would be frivolous to raise this point on appeal. Accordingly, we Grant counsel’s motion to withdraw and Dismiss the appeal.	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8473905/	ORDER After an Administrative Law Judge (“ALJ”) denied Supplemental Security benefits (“SSI”) for Nathan Murphy, a minor, we held that the ALJ failed to explain and support his disregard of pertinent evidence in finding that Nathan did not demonstrate sufficient impairment to qualify for coverage. We remanded for further proceedings, and Mrs. Vicki Murphy (Nathan’s mother) subsequently filed a petition for attorney’s fees under the Equal Access to Justice Act, 28 U.S.C. § 2414(d) (“EAJA”). The district court denied the petition, finding that the government was substantially justified in its position. We find that the district court did not abuse its discretion in making this determination, and so we AFFIRM. I. Background In November 2001, Mrs. Murphy applied to the Social Security Administration for SSI benefits on behalf of her son, alleging that Nathan suffered from Attention Deficit Hyperactive Disorder and affective mood disorders. At the administrative hearing, the ALJ had Dr. Kenneth Kessler review Nathan’s medical records, and Dr. Kessler ultimately confirmed that Nathan exhibited a marked limitation in the domain of “interacting and relating to others.” Dr. Kessler also determined that Nathan did not exhibit marked limitations in four out of the five other relevant domains, but stated that he was unable to conclude whether Nathan had a marked limitation in the final domain of “attending and completing tasks.” Dr. Kessler recommended obtaining behavioral evaluations from Nathan’s school in order to 121determine whether Nathan suffered from this limitation. The ALJ supplemented the administrative record with a behavioral assessment along with additional documents from Nathan’s school containing surveys from Nathan’s teachers regarding his behavioral tendencies and classroom performance. Mr. and Mrs. Murphy also testified about Nathan’s “day-to-day moods and behavior.” After reviewing this information, but without having Dr. Kessler examine the documentation, the ALJ denied benefits, finding that Nathan did not have a marked impairment in the domain of “attending and completing tasks,” and, therefore, was not disabled because he did not meet the requirement of having marked limitations in at least two domains of functioning. The ALJ also commented that Nathan’s parents “were not fully credible” because “them complaints were not entirely consistent with the other substantial evidence in the record.” The Appeals Council declined to review the ALJ’s decision, making the ruling final, and Mrs. Murphy appealed to the district court, which affirmed the ALJ’s decision. Mrs. Murphy then appealed to this court, and we vacated the district court’s decision because we found that the ALJ had not explained why he disregarded pertinent evidence in the record. Murphy v. Astrue, 496 F.3d 630, 633 (7th Cir.2007). Specifically, we noted that although the ALJ pointed to evidence in support of his ruling, he did not explain why he disregarded those portions of the school documents that supported a finding that Nathan was disabled. Id. at 634-35. We also found that the ALJ’s credibility determinations concerning Mr. and Mrs. Murphy were not supported by the administrative record. Id. at 635. Similar to the gaps in reasoning noted above, the ALJ “noted, without elaboration” that Mr. and Mrs. Murphy’s observations did not comport with the school’s records — the same school records the ALJ failed to explain when addressing Nathan’s disability determination. Id. So we concluded that the ALJ’s decision was not supported by substantial evidence. Id. Following remand, Mrs. Murphy filed a petition for attorney’s fees under the EAJA, 28 U.S.C. § 2412(d). The district court denied the petition, finding that the ALJ’s conclusion that Nathan was not disabled, his decision not to re-contact Dr. Kessler, and his credibility determination were substantially justified. With respect to the ALJ’s disability finding, the district court found that the ALJ was substantially justified because his assessment of the evidence met the minimal level of articulation. The court also relied on the fact that our prior opinion did not contain strong language that would support an award of attorney’s fees under the EAJA. The district court determined that the ALJ was substantially justified in reviewing Nathan’s behavioral assessment without contacting Dr. Kessler because he was qualified to do so after reviewing the school records. See Murphy, 496 F.3d at 634. Finally, the district court judge found that the ALJ’s credibility finding was substantially justified because he proffered some evidence, albeit minimal, that contradicted Nathan’s parents’ testimony. Mrs. Murphy now appeals the district court’s denial of her motion for attorney’s fees. II. Analysis A. The Legal Framework The EAJA allows a successful litigant against the United States to recover attorney’s fees provided that: (1) the litigant was a “prevailing party”; (2) the government’s position was not “substantially justified”; (3) there existed no special circumstances that would make an award unjust; 122and (4) the litigant filed a timely application with the district court. 28 U.S.C. § 2412(d)(1)(A) — (B); Krecioch v. United States, 316 F.3d 684, 688 (7th Cir.2003). The only issue on appeal is whether the government’s position was substantially justified, which the Commissioner bears the burden of proving. Marcus v. Shalala, 17 F.3d 1033, 1036 (7th Cir.1994). We review the district court’s denial of a petition for attorney’s fees and costs for an abuse of discretion. Pierce v. Underwood, 487 U.S. 552, 562, 108 S.Ct. 2541, 101 L.Ed.2d 490 (1988). Attorney’s fees may be awarded if the Commissioner’s pre-litigation conduct or his litigation position lacked substantial justification. Golembiewski v. Barnhart, 382 F.3d 721, 724 (7th Cir.2004). The ALJ’s decision is considered part of the Commissioner’s pre-litigation conduct. Id. The Commissioner’s position is substantially justified if his conduct has a “reasonable basis in law and fact, that is, if a reasonable person could believe the position was correct.” Golembiewski, 382 F.3d at 724 (citing Marcus, 17 F.3d at 1036). “Substantially justified does not mean justified to a high degree, but rather has been said to be satisfied if there is a genuine dispute or if reasonable people could differ as to the appropriateness of the contested action.” Stein v. Sullivan, 966 F.2d 317, 320 (7th Cir.1992) (citation and internal quotation marks omitted). Stated another way, the substantial justification standard means that the ALJ was “justified in substance or in the main — that is, justified to a degree that could easily satisfy a reasonable person.” Pierce, 487 U.S. at 565-66, 108 S.Ct. 2541 (1988). B. Mrs. Murphy’s “Strong Language” Argument Mrs. Murphy first argues that the district court used an erroneous legal standard in finding that the Commissioner was substantially justified. Specifically, she claims that the district court inordinately focused on whether our decision used strong language, instead of recognizing that strong language is just one factor, and not the principal focus of the substantial justification analysis. As Mrs. Murphy correctly states, in some cases, strong language against the government’s position in an opinion on the merits may suggest that the Commissioner’s position was not substantially justified. See Marcus, 17 F.3d at 1038. Here, however, it is clear that the district court was simply addressing Mrs. Murphy’s own argument when discussing the lack of “strong language” in our merits opinion, and was not under the mistaken impression that strong language was the only method of showing a lack of substantial justification. The court compared the language used and the errors we identified in our decision to those found in a similar case, Golembiewski v. Barnhart, 382 F.3d 721, 724 (7th Cir.2004). This comparison illustrated that our previous decision in this case did not contain the same “admonishing language” used to describe the severe errors found in Golembiewski.1 The district court did not use language suggesting that strong language was the only way to support an award of attorney’s fees; instead, the court recognized that it was one factor that supports a claim for fees and assessed it accordingly. The fact that the district court analyzed this particular factor and disagreed with Mrs. Mur123phy does not amount to an abuse of discretion. C. No Showing of a Lack of Substantial Justification Mrs. Murphy next contends that the ALJ’s decision violated our precedent and the Commissioner’s own regulations, and therefore was not substantially justified. Essentially, Mrs. Murphy appears to argue that the ALJ did not adhere to well-established law because he failed to fully develop the record and adequately articulate his analysis, and that the government was not substantially justified in defending the ALJ’s ruling. Again, we cannot agree with Mrs. Murphy. In our previous opinion, we found that the ALJ did not “sufficiently explain” his disregard for pertinent evidence that was inconsistent with his disability finding, and expressed our concern that he noted, “without elaboration,” that Murphy’s testimony was inconsistent with parts of the record. See Murphy, 496 F.3d at 635. These are errors of articulation, which we have held “in no way necessitate a finding [that] the [government’s] position was not substantially justified” because the “requirement that the ALJ articulate his consideration of the evidence is deliberately flexible.” Stein, 966 F.2d at 319-320. In Stein, we found that although the judge failed to consider some of the evidence in the record, his argument was supported by other evidence and so the government was substantially justified in its position. Id. The same goes for this case. Although the ALJ failed to consider evidence concerning a disability finding and did not sufficiently explain his credibility determination, there was still some discussion and some evidence in the record that supported his position; “this is not a case in which the Commissioner’s position is based on speculation with no support in the record.” Cunningham v. Barnhart, 440 F.3d 862, 865 (7th Cir.2006). “Substantially justified does not mean justified to a high degree, but rather has been said to be satisfied ... if reasonable people could differ as to the appropriateness of the contested action.” Stein, 966 F.2d at 320 (citing Pierce, 487 U.S. at 565, 108 S.Ct. 2541 (internal quotation marks omitted)). Here, some evidence supported the ALJ’s disability and credibility determinations, and since that evidence was noted by the ALJ, we cannot say that the district court abused its discretion in finding that reasonable people could differ as to the appropriateness of the ALJ’s decision, even though his articulation of that decision was minimal. See Stein, 966 F.2d at 320 (finding no abuse of discretion even though “the Secretary failed to consider, or at least failed to articulate that he considered” contrary evidence); Cunningham, 440 F.3d at 865 (finding no abuse of discretion because the medical evidence supported the ALJ’s decision). D. The Permissible Reevaluation of Underlying Merits Last, Mrs. Murphy argues that the district court abused its discretion by reassessing the underlying merits of the SSI benefits application rather than evaluating the errors we previously found in the ALJ’s decision. However, because the Commissioner also relies on the evidence used by the ALJ, the district court must also, at some point, consider this evidence when assessing the government’s pre-litigation and litigation positions to determine whether these positions are substantially justified. The district court must necessarily go beyond our opinion and examine the ALJ’s decision and the evidence he used; the substantial justification standard used to determine EAJA fees differs from the substantial evidence standard used in our previous opinion, so the basis for the government’s position must be analyzed with this less demanding standard in mind. See Cummings v. Sullivan, 950 F.2d 492, 498 (7th Cir.1991). To the extent that the 124district court “reassessed” the underlying merits of the application, it only did so to determine whether that the evidence used by the ALJ, and relied upon by the Commissioner, was sufficient to create a genuine dispute, which is part of a substantial justification analysis. See Stein, 966 F.2d at 320. The district court’s evaluation of the underlying merits was limited to the evidence considered by the ALJ, which is a necessary component in determining if the government was substantially justified in defending the ALJ’s ruling because it shows that the Commissioner’s position was not “based on speculation with no support in the record.” Cunningham, 440 F.3d at 865. Notably, the district court stated at the outset of its analysis that although it would focus on the ALJ’s actions, it would not “ignore the Seventh Circuit’s findings.” A reading of the district court’s decision shows that it did not ignore the errors we found with the ALJ’s analysis, but in fact used those errors as a starting point when assessing the government’s pre-litigation and litigation positions. With regard to the disability finding, the district court analyzed our opinion and reasoned that it did not contain strong language suggesting a lack of substantial justification, and that the articulation errors we assigned to the ALJ did not compel a finding that the government was not substantially justified. This analysis was essential to the issues before the court and was not a reevaluation of the underlying merits. Therefore, we find no abuse of discretion in the district court’s assessment of the evidence or in any of its conclusions. III. Conclusion For the foregoing reasons, the judgment of the district court is Affirmed. . Specifically, the Golembiewski court noted that in its preceding merits opinion, it had urged the Commissioner to assign the matter to another ALJ and had "closed with an additional observation,” admonishing the ALJ to consider the aggregate of the plaintiff's "host of medical conditions.” 382 F.3d at 725.	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8473909/	ORDER Plaintiff Jerome Carr sued Patrick Metals, his former employer, alleging race discrimination and retaliation in the workplace based on his salary and discipline he received. See 42 U.S.C. §§ 2000e-5,1981. Carr’s complaint also includes state-law claims of fraud, intentional infliction of emotional distress and conspiracy. The district court granted summary judgment in favor of Patrick Metals. Carr appeals, 129and we affirm the judgment of the district court. Carr, who is African-American, worked as a general laborer for Patrick Metals from 2003 to 2007. Production employees at Patrick Metals are unionized, and from 2004 to 2006 Carr headed the union’s collective bargaining unit committee. In that capacity, he wrote grievances on behalf of himself and his co-workers. At one point in late 2005, Carr assumed a new position with the company, but his pay was not increased accordingly. However, Patrick Metals soon acknowledged the mistake, adjusted Carr’s salary and provided him with back pay. In May 2006, Carr accidentally broke a machine he was using and was given a written warning. He filed a grievance over the warning, but was unsuccessful. Then in September 2006, Carr was disciplined for making sexually inappropriate comments and using a controlled substance in the workplace. He filed grievances over the discipline, but was again unsuccessful. Although Patrick Metals disciplined Carr for these incidents, it did not punish him as harshly as company policy allows. In October 2006, Carr stepped down from his position with the union, and, in November 2007, he voluntarily resigned from Patrick Metals. In this suit, Carr claimed that his initial substandard salary and the discipline imposed by the company resulted from racial discrimination and retaliation for his union activities. He maintained that Patrick Metals’s actions toward him violated federal and state law and the company’s collective bargaining agreement with the union. The district court granted summary judgment to Patrick Metals, finding that Carr’s failure to exhaust the grievance process available to him precluded any claim that the company had breached its collective bargaining agreement. The court also determined that Carr had provided insufficient evidence of racial discrimination or retaliation and that any claim of retaliation for union activities needed first to be presented to the National Labor Relations Board. The court then declined to exercise supplemental jurisdiction over Carr’s state-law claims. On appeal, Carr asserts generally that the district court did not take all of his evidence into account and relied improperly on unproven representations by Patrick Metals. He does not elaborate on the contention, nor does he support it with citations to the record or to legal authority. See Fed. R.App. P. 28(a)(9)(A). Although we construe pro se filings liberally, “any appellate brief, even one from a pro se litigant ... must contain an argument consisting of more than a generalized assertion of error, with citations to supporting authority.” Anderson v. Hardman, 241 F.3d 544, 545 (7th Cir.2001). However, we can discern at least one argument that warrants discussion. Carr maintains that the district court had federal question jurisdiction over his claims — an apparent challenge to the court’s conclusion that it lacked jurisdiction to hear his union retaliation claim. To the extent that Carr can show he was disciplined in retaliation for participating in union activities, the district court was correct to find that it lacked jurisdiction over that claim. The National Labor Relations Board has primary jurisdiction over suits based on practices regulated by the National Labor Relations Act, San Diego Building Trades Council v. Garmon, 359 U.S. 236, 245, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959), and the filing of grievances is a protected “concerted activity” under the Act. See Slusher v. NLRB, 432 F.3d 715, 723 n. 3 (7th Cir. 2005); 29 U.S.C. § 157. Because Carr’s sole cognizable claim before this court is that Patrick Metals retaliated against him because of his protected union activities, 130he needed to file it first with the National Labor Relations Board. The district court’s judgment is AFFIRMED. AFFIRMED.	01-04-2023	11-05-2022

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