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https://www.courtlistener.com/api/rest/v3/opinions/8474736/
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
David Karl Danser, a federal prisoner, appeals the district court’s order denying his motion to reopen his previously dismissed 28 U.S.C. § 2241 (2006) petition. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. See Danser v. Stansberry, No. 2:07-cv-00271-JBF-TEM (E.D.Va. Apr. 16, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8474801/
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PER CURIAM:
After a thorough review of the briefs and the record, and after hearing oral argument, we AFFIRM based on the well-reasoned opinion of the district court.
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01-04-2023
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https://www.courtlistener.com/api/rest/v3/opinions/8474734/
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jevon Edward Brown appeals the district court’s order denying what it construed to be a Fed.R.Civ.P. 60(b) motion for reconsideration of the district court’s February 24, 2009 order dismissing Brown’s 42 U.S.C. § 1983 (2006) action against Defendants. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Brown v. Patrick, 1:08-cv-01345-TSE-TRJ (E.D.Va. Apr. 20, 2009). We dispense with oral argument *819because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.
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01-04-2023
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https://www.courtlistener.com/api/rest/v3/opinions/8474739/
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Dismissed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
James Scott, Jr., seeks to appeal the district court’s order dismissing two of Scott’s 28 U.S.C.A. § 2255 (West Supp. 2009) claims and referring the third to a magistrate judge for further proceedings. This court may exercise jurisdiction only over final orders, 28 U.S.C. § 1291 (2006), and certain interlocutory and collateral orders, 28 U.S.C. § 1292 (2006); Fed. R.Civ.P. 54(b); Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). The order Scott seeks to appeal is neither a final order nor an appealable interlocutory or collateral order. Accordingly, we dismiss the appeal for lack of jurisdiction. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
DISMISSED.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8474741/
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Charles Jerome Adams appeals the district court’s orders denying his petition for a writ of audita querela and his motion for reconsideration. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Adams, No. 1:91-cr-00291-PMD-2 (D.S.C. May 26, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8474743/
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Derrico D. Jordan appeals from the district court’s order denying his 18 U.S.C. § 3582(c)(2) (2006) motion. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Jordan, No. 1:00-cr-00057-LHT-3 (W.D.N.C. May 12, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.
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https://www.courtlistener.com/api/rest/v3/opinions/8474747/
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Melvin E. Howard appeals the district court’s order granting his motion for reduction of sentence filed pursuant to 18 U.S.C. § 3582(c)(2) (2006). We find no reversible error and we thus affirm for the reasons stated by the district court. United States v. Howard, No. 5:95-cr-00123-BO-10 (E.D.N.C. May 20, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.
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https://www.courtlistener.com/api/rest/v3/opinions/8474749/
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Anthony Benjamin appeals the district court’s order dismissing his 42 U.S.C. § 1983 (2006) complaint under 28 U.S.C. § 1915A(b) (2006). We have reviewed the record and find no reversible error. Accordingly, we affirm the order of the district court. See Benjamin v. Wallace, No. 1:08-cv-01089-JCC-JFA (E.D. Va. filed Dec. 16, 2008 & entered Dec. 17, 2008). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.
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01-04-2023
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https://www.courtlistener.com/api/rest/v3/opinions/8474738/
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Dismissed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
James Scott, Jr., seeks to appeal the district court’s order dismissing two of Scott’s 28 U.S.C.A. § 2255 (West Supp. 2009) claims and referring the third to a magistrate judge for further proceedings. This court may exercise jurisdiction only over final orders, 28 U.S.C. § 1291 (2006), and certain interlocutory and collateral orders, 28 U.S.C. § 1292 (2006); Fed. R.Civ.P. 54(b); Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). The order Scott seeks to appeal is neither a final order nor an appealable interlocutory or collateral order. Accordingly, we dismiss the appeal for lack of jurisdiction. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
DISMISSED.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8474740/
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Charles Jerome Adams appeals the district court’s orders denying his petition for a writ of audita querela and his motion for reconsideration. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Adams, No. 1:91-cr-00291-PMD-2 (D.S.C. May 26, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.
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01-04-2023
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https://www.courtlistener.com/api/rest/v3/opinions/8474745/
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Lashon Maurice Gaither appeals the district court’s order denying his motion for reduction of 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. United States v. Gaither, No. 5:05-cr-00009-RLV-DCK-10 (W.D.N.C. Feb. 27, 2009); see United, States v. Hood, 556 F.3d 226, 232-36 (4th Cir.2009), cert. denied, — U.S. -, 130 S.Ct. 321, 175 L.Ed.2d 212 (2009). We deny Gaither’s motion to appoint counsel and dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.
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01-04-2023
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https://www.courtlistener.com/api/rest/v3/opinions/8474748/
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Anthony Benjamin appeals the district court’s order dismissing his 42 U.S.C. § 1983 (2006) complaint under 28 U.S.C. § 1915A(b) (2006). We have reviewed the record and find no reversible error. Accordingly, we affirm the order of the district court. See Benjamin v. Wallace, No. 1:08-cv-01089-JCC-JFA (E.D. Va. filed Dec. 16, 2008 & entered Dec. 17, 2008). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8474753/
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Ricky Lee Pierce appeals the district court’s order denying his motion to reduce 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. United States v. Pierce, No. 4:05-cr-00002-H-1 (E.D.N.C. Feb. 9, 2009). Pierce’s motions for appointment of counsel and to hold his informal brief in abeyance are denied. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.
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https://www.courtlistener.com/api/rest/v3/opinions/8474754/
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Dismissed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Salame M. Amr seeks to appeal the district court’s order denying his motion to supplement the record for the appeal to this court of his underlying civil case. Because our decision in that appeal has issued, Amr v. Virginia State Univ., 331 Fed.Appx. 194 (4th Cir.2009) (unpublished), this appeal is now moot. See Incumaa v. Ozmint, 507 F.3d 281, 286 (4th Cir.2007) (setting forth the principles of appellate mootness). Therefore, we dismiss Amr’s appeal as moot. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
DISMISSED.
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https://www.courtlistener.com/api/rest/v3/opinions/8474757/
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Darrin King appeals the district court’s order granting summary judgment for the Appellee on King’s claim of disability discrimination. On appeal, we confine our review to the issues raised in the Appellant’s brief. See 4th Cir. Rule 34(b). King’s brief fails to challenge the district court’s dispositive conclusions that he failed to demonstrate a prima facie case of discrimination and that the Appellee had legitimate, non-discriminatory reasons for not hiring King. Accordingly, we affirm the district court’s order and deny King’s mo*859tions to appoint counsel. 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 in the decisional process.
AFFIRMED.
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https://www.courtlistener.com/api/rest/v3/opinions/8474760/
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GEORGE CARAM STEEH, District Judge.
Appellant Tabitha Nshoya Magoti was indicted on April 24, 2008, on one count of making or using a false writing or document, in violation of 18 U.S.C. § 1001(a)(3), and one count of willfully making a materially false, fictitious or fraudulent statement to the Government, in violation of 18 U.S.C. § 1001(a)(2). The charges arose from Magoti’s backdating of an 1-9 Employment Eligibility Verification Form used to verify her eligibility to work in the United States and her false statements made to government officials when turning over that form. During an August 4, 2008 final pretrial conference, the district court determined that if Magoti testified, her seven prior felony convictions for uttering and publishing forged instruments would be admissible as impeachment evidence under Fed.R.Evid. 609(a)(2) because those offenses required proof of making false statements. Magoti did not testify on her own behalf at trial, she says, because of the judge’s conclusion that her prior convictions would be admissible if she did. At the beginning of trial on August 12, 2008, the district court ruled that four fraudulent 1-9 Forms of Magoti’s employees that Magoti submitted to officials along with her own 1-9 Form were admissible to prove Magoti’s knowledge and intent in deciding whether she willfully backdated her own Form. Magoti was convicted by a jury on both counts on August 13, 2008. Magoti appeals her convictions on the grounds that: (1) there was insufficient evidence to sustain her convictions; (2) the district court abused its discretion in admitting other 1-9 Forms at trial in violation of Federal Rule of Evidence 404(b); and (3) the district court abused its discre*983tion under Federal Rule of Evidence 609 by stating that it would admit her prior convictions for uttering and publishing forged instruments at trial if she testified. For the reasons set forth below, we affirm.
I. Sufficiency of the Evidence
We review sufficiency-of-the-evidence claims de novo to determine “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” United States v. Tocco, 200 F.3d 401, 424 (6th Cir.2000) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)).
Magoti’s argument that there was insufficient evidence that she willfully made a false statement is without merit. Special Agent George testified at trial that Magoti provided Agents with her 1-9 Form dated January 1, 2002, told them it had been completed in 2002, and explained to the Agents that she did not remember if anyone had helped her complete the 1-9 Form because she had filled it out “so long ago.” George also testified that Magoti later admitted she had not created her 1-9 Form in 2002, but had actually created it after being subpoenaed in 2007. Viewing the Agents’ testimony, Magoti’s 1-9 Form, and the additional 1-9 Forms presented to the jury in a light most favorable to the prosecution, any rational trier of fact could have found that Magoti knowingly, willfully, and falsely represented in both her 1-9 Form and in her oral statements to the Agents that her 1-9 Form was completed on January 1, 2002. See Tocco, 200 F.3d at 424; See United States v. Daughtry, 48 F.3d 829, 831-32 (4th Cir.1995), vacated on other grounds, 516 U.S. 984, 116 S.Ct. 510, 133 L.Ed.2d 419 (1995); See Sixth Circuit Pattern Criminal Jury Instructions, 2005 Revised Edition, § 13.03.
Magoti’s argument that backdating the Form is not a material misrepresentation, is without merit. A statement is material if it “has the natural tendency to influence or is capable of influencing a decision” of the Bureau of Immigration of Customs Enforcement. United States v. Lutz, 154 F.3d 581, 588 (6th Cir.1998). Viewing the evidence presented to the jury in a light most favorable to the prosecution, a rational trier of fact could have found that Magoti’s backdating of her 1-9 Form and misrepresentations to Agents that she completed the 1-9 Form on January 1, 2002 had a natural tendency to influence ICE’s investigation. See Tocco, 200 F.3d at 424; Lutz, 154 F.3d at 588.
Magoti argues that Agent George’s testimony about her oral statements was too contradictory and insufficient to sustain the conviction. Viewing the testimony in a light most favorable to the prosecution, any rational trier of fact could have believed both the testimony of Agent George and the testimony of Agent Burgess, who testified he could not recall whether Magoti told them she had filled out her 1-9 Form in 2002. See Tocco, 200 F.3d at 424. The Agents’ credibility was properly a decision for the jury. See United States v. Wright, 16 F.3d 1429, 1440 (6th Cir.1994).
Magoti argues that her own 1-9 Form was rendered a “legal nullity” because she verified the form as both employer and employee. She argues, without supporting authority, that her completion of the 1-9 Form for herself could not support a finding of criminal liability under 18 U.S.C. § 1001. The argument is baseless. Magoti was convicted of making a false writing and a false statement to ICE Agents. The fact that Magoti was acting as both employer and employee does not nullify her duty to truthfully represent her work status.
*984II. Admission of 404(b) Evidence
Magoti objects to the admission under Federal Rule of Evidence 404(b) of the four other 1-9 Forms that she completed for her employees. Generally, evidence of other crimes, wrongs, or acts are not admissible to show that a person acted in conformity with those crimes, wrongs, or acts when committing a charged crime. Such evidence “may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” Fed.R.Evid. 404(b). The district court found that the four 1-9 Forms were admissible under Rule 404(b) to prove Magoti’s knowledge and intent with regard to whether she willfully backdated her own 1-9 Form.
In reviewing Rule 404(b) determinations, this Circuit employs
a three-part test, reviewing (1) for clear error the district court’s determination that the ‘other act’ took place; (2) de novo the district court’s legal determination that the evidence was admissible for a proper purpose; and (3) for abuse of discretion the district court’s determination that the probative value of the other acts evidence is not substantially outweighed by its unfairly prejudicial effect.
United States v. Bell, 516 F.3d 432, 440 (6th Cir.2008). An error in the admission of other-acts evidence constitutes “harmless error” if the other record evidence of guilt is overwhelming, eliminating any fair assurance that the conviction was substantially swayed by the error. United States v. Murphy, 241 F.3d 447, 453 (6th Cir.2001).
First, the district court did not clearly err in finding that there was sufficient evidence to conclude that Magoti had completed and submitted the four 1-9 Forms for her employees. Magoti’s counsel points to differences between the forms and argues that Magoti may not have completed them. The one difference of significance is that Magoti’s name is misspelled on one of the four 1-9 Forms when it was written with two “t”s. At trial, Magoti did not advance an explanation or evidence of any other person who may have filled out the 1-9 Forms. It is undisputed that Magoti submitted the 1-9 Forms of her employees to the Agents. The district court could find on the whole record that a reasonable jury could conclude Magoti completed or ratified the four other 1-9 Forms and submitted them for review by the Agents. See Bell, 516 F.3d at 441.
Second, the district court found that the four employee 1-9 Forms were probative of Magoti’s knowledge and intent in determining whether she willfully backdated her own 1-9 Form. As an element of the False Writing and False Statement charges, the Government was required to prove beyond a reasonable doubt that Magoti “knowingly and willfully” made false statements to the ICE Agents. United States v. White, 492 F.3d 380, 396 (6th Cir.2007); United States v. Logan, 250 F.3d 350, 359 (6th Cir.2001). Magoti’s defense was that she innocently backdated her 1-9 Form and innocently represented that she had in fact completed the 1-9 Form on January 1, 2002. Under Rule 404(b), evidence of other crimes, wrongs, or acts is admissible to prove “intent” and “absence of mistake.” Fed. R.Evid. 404(b). The district court correctly found that the four 1-9 Forms were probative of the material issue of intent; that is, whether Magoti “knowingly and willfully,” or innocently, made the false writing and false statement. See Bell, 516 F.3d at 441.
Third, the district court did not abuse its discretion in finding that the probative value of the four employee 1-9 *985Forms outweighed the risk of unfair prejudice. See Bell, 516 F.3d at 440. Alternatively, any error was harmless considering the other overwhelming record evidence of Magoti’s guilt. See Murphy, 241 F.3d at 453. Agents testified that Magoti admitted completing her 1-9 Form in 2007 after she had previously represented that the I-9 Form was completed it in 2002. The form was admittedly backdated to January 1, 2002.
III. Admissibility of Prior Convictions
Federal Rule of Evidence 609(a)(2) states that evidence “that any witness has been convicted of a crime shall be admitted, regardless of the punishment, if it readily can be determined that establishing the elements of the crime required proof or admission of an act of dishonesty or false statement by the witness.” As with any other witness, defendants in a criminal trial are subject to impeachment if they take the stand in their own defense. United States v. Walker, 313 F.2d 236, 238 (6th Cir.1963). A trial court’s decision whether to admit evidence of prior convictions under Federal Rule of Evidence 609 is reviewed for an abuse of discretion. United States v. Gaitan-Acevedo, 148 F.3d 577, 591 (6th Cir.1998).
The district court did not abuse its discretion in concluding that Magoti’s prior Michigan convictions for uttering and publishing were admissible under Rule 609. Magoti was convicted of seven violations of M.C.L. § 750.249. The statute prohibits “utter[ing] and publish[ing] as true, a false, forged, altered, or counterfeit record, deed, instrument or other writing listed in section 248 knowing it to be false, altered, forged, or counterfeit, with intent to injure of defraud.” This Court has previously held that a conviction for uttering and publishing altered money orders is a crime “involving dishonesty.” United States v. Cox, 159 Fed.Appx. 654, 657 (6th Cir.2005). Further, a conviction under M.C.L. § 750.249 for uttering and publishing requires proof that the person knowingly uttered and published a “false” writing representing it to be “true.” Accordingly, Magoti’s convictions required proof of “an act of dishonesty or false statement” as contemplated by Rule 609(a)(2). The district court did not abuse its discretion in ruling that Magoti’s prior uttering and publishing convictions were admissible under Rule 609(a)(2). See Gaitan-Acevedo, 148 F.3d at 591.
IV.
For these reasons, we affirm the judgment of the district court.
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ORDER
Victor Powell pleaded guilty to transporting a minor across state lines for the purpose of prostitution. See 18 U.S.C. § 2423(a). He was represented by counsel at the time of his guilty plea but appeared pro se at sentencing. Now, with the assistance of the federal public defender, Mr. Powell argues that his waiver of counsel at sentencing was involuntary and that he therefore must be resentenced. For the reasons set forth in this order, we affirm the judgment of the district court.
I
BACKGROUND
Law-enforcement officials began investigating Mr. Powell in 2004 after they received a phone call from an 18-year-old woman who said she was involved in an abusive situation. Investigators learned that Mr. Powell had abducted the caller and forced her into prostitution and that he had done the same with three other minor females.
On May 8, 2007, one month before the date scheduled for sentencing, Mr. Powell’s retained attorney moved to withdraw, citing irreconcilable differences. The district court permitted counsel to withdraw and postponed the sentencing hearing. Over the next year, the court conducted ten status hearings concerning Mr. Powell’s representation. During that time, Mr. Powell turned away two different attorneys willing to represent him by appointment, and he tried to dispense with a third attorney appointed by the court to *20appear as standby counsel. Mr. Powell refused to accept any attorney who was not willing to represent him in his “private capacity,” which he explained to mean “[a]s a third party intervenor and secured party creditor in this matter in title over the property.” R.213 at 8. Mr. Powell elaborated that he was not the person charged in the indictment: “I am Victor Powell,” he told the court at one point, “but that name on the charging instrument in all capital letters is a corporate fiction in law or a deceased person.” Id. In support of his position, Mr. Powell flooded the record with irrelevant documents, including what he characterized as a Uniform Commercial Code financing statement, a hold-harmless indemnity agreement and a common-law copyright.
After the district court had permitted Mr. Powell’s retained attorney to withdraw, the court conducted the first of the ten status hearings on June 19, 2007. At that hearing, the court said that it would appoint a private attorney from the list of attorneys who were qualified and willing to accept appointments under the Criminal Justice Act. At the second status hearing on July 10, the court learned that Mr. Powell had refused to sign the requisite financial affidavit because, he claimed, the attorney would not agree to represent him in his “private capacity.” Id. The district court explained to Mr. Powell that he was a criminal defendant and that his theories about corporate status had no relevance to the proceedings.
Although Mr. Powell was given additional time to reconsider his position, he refused to appear at the next status hearing on August 16, 2007. When Mr. Powell finally appeared on August 28, he told the court that he did not “wish to proceed pro se,” and did not “have any license to represent any corporate fiction in this or any courtroom.” R.215 at 4. After the court warned Mr. Powell that his position was not valid and that his case would proceed to sentencing, Mr. Powell changed course and asked to be referred to a public defender. Mr. Powell initially refused, however, to meet with the assistant public defender. When they finally did speak at the fifth status hearing on October 5, 2007, Mr. Powell was uncooperative: the district court therefore released the assistant public defender from any further obligation to represent Mr. Powell. Additionally, in view of Mr. Powell’s behavior, the court ordered that he be evaluated to assure that he was competent to be sentenced.
At the sixth status hearing on October 19, 2007, just two weeks after rejecting appointment of the federal public defender, Mr. Powell announced again that he wished to be represented at sentencing but only in his “private capacity.” R.217 at 6. The district court once more reminded Mr. Powell that he was a criminal defendant and urged him to accept an attorney: “I think it would be a wise decision for you to accept a lawyer to represent you. As you point out ... you’re not trained to represent anybody, so I think you would be doing yourself a disservice if you don’t have a lawyer representing you.” Id. at 6-7. When Mr. Powell replied that he was not a criminal defendant but rather a corporation, the court admonished him further: “You’re an individual. I don’t care what you tell me about being an LLC. You’re not an LLC. You’re not a corporation. You’re going to be sentenced here. Now, I’m giving you the opportunity to have a lawyer represent you, and I think you should accept that.” Id. at 8. Mr. Powell answered that he wanted an attorney who would represent him in his private capacity. The court then set a date for the sentencing hearing, although that date was later pushed back because the competency evaluation had not been completed. At the next status hearing on October 26, 2007, the district court appointed standby counsel for Mr. Powell in *21the hope that it would speed up the competency evaluation.
During the next three months, Mr. Powell was before the district court three more times, and each time he made a point to announce that the standby counsel was not his attorney. At the last of these appearances, the tenth status hearing on April 8, 2008, the court reviewed the results of the competency evaluation and found that Mr. Powell was competent to proceed.
Mr. Powell was finally sentenced six months later, on June 5, 2008. At that proceeding, Mr. Powell, who appeared pro se, made no mention of corporate fictions or secured parties and instead focused on the merits of his case. Except for a few instances when his standby counsel interjected, Mr. Powell was in control of the conduct of his case. He presented a range of legal and factual objections to the application of the United States Sentencing Guidelines, including a challenge to the court’s use of relevant conduct in determining his offense level. He conducted a detailed cross examination of a government agent, during which he sought to discredit the witness’s testimony and to cast doubt on a number of the Government’s allegations about his trafficking operation. He also convinced the court to allow him, by way of questioning from the prosecutor and his standby counsel, to examine one of the victims who was present in the courtroom.
At the conclusion of the proceeding, the district court sentenced Mr. Powell to the statutory maximum term of thirty years’ imprisonment. The court also imposed a five-year term of supervised release.
II
DISCUSSION
A.
Mr. Powell argues that he did not knowingly and intelligently waive his right to counsel at sentencing because, he insists, the district court failed to explain adequately the dangers of self-representation. As a remedy, he seeks to be resentenced.
The Sixth Amendment to the United States Constitution guarantees a criminal defendant a right to counsel at sentencing. United States v. Johnson, 534 F.3d 690, 693 (7th Cir.2008); United States v. Irorere, 228 F.3d 816, 826 (7th Cir.2000). A defendant does not, however, have a right to appointed counsel of his choice. United States v. Alden, 527 F.3d 653, 660 (7th Cir.2008). A defendant may waive the right to counsel, whether through words or conduct, provided he does so knowingly and intelligently. Faretta v. California, 422 U.S. 806, 835, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975); Alden, 527 F.3d at 660. In determining if a waiver was knowing and intelligent, we evaluate four factors: (1) whether the district court conducted a formal hearing at which it could admonish the defendant about the risks of proceeding pro se, (2) whether the record discloses other evidence establishing that the defendant understood the risks of self-representation, (3) the defendant’s background and experience and (4) the context of the defendant’s waiver. United States v. Avery, 208 F.3d 597, 601 (7th Cir.2000); United States v. Bell, 901 F.2d 574, 577-79 (7th Cir.1990). This court reviews for an abuse of discretion a district court’s determination that a waiver was knowing and intelligent. United States v. Todd, 424 F.3d 525, 530 (7th Cir.2005); Avery, 208 F.3d at 601.
B.
Because the background context provides the strongest evidence supporting a finding of waiver, we begin our analysis with the fourth factor. At sentencing, the *22district court clearly articulated its determination that Mr. Powell was attempting to game the proceedings by bombarding the court with irrelevant filings and setting unreasonable conditions on appointed attorneys. Indeed, appellate counsel acknowledges that Mr. Powell’s insistence on being treated as a corporation likely was grounded in strategy. Counsel’s concession is consonant with the district court’s finding that Mr. Powell understood what he was up to, and we have held that evidence of strategic delay weighs in favor of finding a waiver to be knowing and intelligent. United States v. Egwaoje, 335 F.3d 579, 586 (7th Cir.2003); United States v. Sandles, 23 F.3d 1121, 1129 (7th Cir.1994).
The remaining factors solidify the district court’s finding of a knowing and intelligent waiver. As for the first factor, district courts are not required to give a “ ‘hypothetical lecture on criminal law.’ ” Todd, 424 F.3d at 531 (quoting United States v. Moya-Gomez, 860 F.2d 706, 732 (7th Cir.1988)). The district court must find, however, that the defendant wants to proceed pro se, and also that he appreciates the difficulties he will encounter in representing himself. Johnson, 534 F.3d at 694; Todd, 424 F.3d at 531.
Mr. Powell argues that the district court’s admonishments at its status hearing on October 19, 2007, fell short because the court failed to address explicitly the range of procedural difficulties he would face at sentencing. Mr. Powell cites no authority for the proposition that a district court must recite a litany of potential risks of self-representation. Indeed, we have rejected the notion that any checklist of warnings is mandated. United States v. Hill, 252 F.3d 919, 928 (7th Cir.2001); see Faretta, 422 U.S. at 835, 95 S.Ct. 2525. It is enough, rather, for the district court to “ensure that the defendant knows his rights and avoids hasty decisions.” Hill, 252 F.3d at 928. That obligation is met if the court alerts the defendant to the “difficulties” of self-representation and highlights some of the complexities of trial procedure. Smith v. Grams, 565 F.3d 1037, 1046 (7th Cir.2009); United States v. Oreye, 263 F.3d 669, 672 (7th Cir.2001); Hill, 252 F.3d at 928-29. The district court did that here by telling Mr. Powell that he lacked the proper training to appear alone and warning him that he would be doing himself a “disservice” if he did not accept an attorney. R.217 at 6-8. Mr. Powell had six months to act on this advice, and the court supplemented it with regular reminders to Mr. Powell that he was a criminal defendant facing sentencing.
The second factor likewise supports the district court’s finding of a knowing and intelligent waiver. Mr. Powell repeatedly acknowledged his own limitations when he told the court that he did not wish to represent himself. That recognition weighs in favor of the finding that Mr. Powell knew the risk of going alone. See United States v. England, 507 F.3d 581, 587 (7th Cir.2007); Sandles, 23 F.3d at 1128. Mr. Powell argues that his approach at sentencing was ill-conceived and likely counterproductive; instead of trying to prove his innocence, he argues, he should have been pleading for a lighter sentence. Mr. Powell’s argument misconceives the depth of the district court’s inquiry: “[T]he competence that is required of a defendant seeking to waive his right to counsel is the competence to waive the right, not the competence to represent himself.” Godinez v. Moran, 509 U.S. 389, 399, 113 S.Ct. 2680, 125 L.Ed.2d 321 (1993); see also United States v. Berry, 565 F.3d 385, 390 (7th Cir.2009). Even so, Mr. Powell’s performance at sentencing demonstrated normal intelligence and an ability to make rational, if misguided, decisions. He attempted to poke holes in the *23testimony of the Government’s witness, and, through a series of pointed objections, demonstrated an understanding of the sentencing guidelines and the rules of evidence. Similarly, Mr. Powell argues that his nonsensical emphasis on “private capacity” suggests that his waiver was unintelligent. The district court properly concluded that this was a tactic, and that, if anything, it supports a finding of waiver.
As to the third factoi*, Mr. Powell’s background and experience also support the district court’s decision. In this context we consider the defendant’s educational history as well as his previous encounters with the legal system. England, 507 F.3d at 587-88; Sandles, 23 F.3d at 1128-29. Mr. Powell received an Adult Education Certificate and completed some college course work. He has a number of prior convictions, which should have alerted him to the gravity of a criminal prosecution. Moreover, the district court, based on the opinion of a psychiatrist, determined that he was competent to proceed with sentencing. All of these factors point to the conclusion that he understood the consequences of his waiver. See England, 507 F.3d at 587-88; Egwaoje, 335 F.3d at 585-86. In light of the totality of the circumstances surrounding Mr. Powell’s waiver, the district court did not abuse its discretion when it concluded that Mr. Powell waived his right to counsel at sentencing.
Conclusion
For the foregoing reasons, the judgment of the district court is affirmed.
AFFIRMED.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8474772/
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*31ORDER
One day before we heard oral arguments in this case, we released an opinion that began with this line:
This appeal, like many others we see, involves a squabble over what constitutes properly considered “relevant conduct” under the federal sentencing guidelines.
See United States v. Rosenberg, 585 F.3d 355 (7th Cir.2009). Ditto for this case.
Jose Rios and Gerardo Lugo were convicted of conspiracy to distribute five or more kilograms of cocaine. Lugo was also convicted on two substantive cocaine distribution charges; Rios was acquitted on a gun charge. Rios was subsequently sentenced to a term of 324 months. Lugo drew a 162-month sentence. Both appeal.
Neither Rios nor Lugo raise issues growing out of their nine-day jury trial in the district court. Their appeals are confined to sentencing. Lugo argues that too much cocaine was put in his “relevant conduct” basket; Rios says he was sentenced on the basis of “inaccurate information.” We start with the facts, both from the trial and, because of the nature of the issues raised on the appeal, from the presentence report which the district court found to be credible.
Rios and Lugo are brothers-in-law. For several years ending in mid-2006, Rios headed a cocaine trafficking operation based in the Kankakee (Illinois) area with a satellite operation in Iowa. Rios arranged for multiple kilograms of cocaine to be transported weekly from Chicago to Kankakee. Once it arrived he fronted the drugs to a network of distributors who, in turn, distributed it to others. Rios’s transactions with his distributors — where he supplied them with cocaine and collected their money — usually took place at his trailer or at a storage facility known as “Big House Customs.”
During the conspiracy, Rios supplied his distributors with multi-ounce quantities of cocaine (ranging from 2 to 9 ounces) on a weekly basis. One of the distributors, Robert Odeneal, purchased up to 9 ounces of cocaine from Rios every week from mid-2004 to May 2005; another, Anthony Allegro, purchased up to 4 ounces from Rios at least once a week in 2003 and 2004.
In 2005, sensing heat from law enforcement, Rios moved to Chicago and put Lugo in charge of the day-to-day operations in Kankakee. Rios instructed his distributors to contact Lugo to purchase their cocaine, although the distributors could still contact Rios if they were unable to make arrangements with Lugo. Lugo paid the rent on Rios’s trailer and continued to use it to conduct drug transactions. From April 2005 until his arrest in August 2006, Lugo sold cocaine to five distributors — Odeneal, Allegro, Christopher Mor-risette, Brent Goselin, and Jeffrey Brown-sey. He admits that he is responsible for just a bit over 14 kilos. However, he objects to anything more that would push him over 15 kilos.
We pause for a moment before going further so Lugo’s argument on appeal can be put in perspective. Because he concedes responsibility for 14 kilos of cocaine, just one more kilo moves him up a notch under the federal sentencing guidelines. Responsibility for at least 5, but less than 15 kilos of cocaine (with all other adjustments and criminal history remaining the same), results in a guideline range of 121 to 151 months. Pushing the amount of cocaine over 15 kilos moves the guideline range to 151-188 months. So the same within-range sentence of 151 could be imposed, oddly enough, if the cocaine attached to a defendant is either 5.1 kilos or 49.9 kilos — the top end of the “at least 15 *32but not more than 50 kilos” range. Lugo, as we mentioned, drew a term of 162 months, 11 months more than the top of the 5-15 range but 26 months less than the top of the 15-50 range. And of course the district judge, working now in our advisory guidelines system, could very well have imposed the same 162-month sentence even without putting the extra kilo of cocaine in Lugo’s relevant conduct if he thought it was called for after applying the sentencing factors in 18 U.S.C. § 3553(a).
Now back to Mr. Lugo and the issue of the additional cocaine. In 2002, Josh Lambert (we’ll call him “Josh” because his brother Ryan is also a player) was purchasing cocaine from Rios. During the summer of that year, Allegro met Josh and began purchasing cocaine from him. Josh later introduced Allegro to Rios. Allegro eventually began purchasing his cocaine directly from Rios at Rios’s trailer. Before Rios moved to Chicago, Rios introduced Allegro to Lugo at the trailer. Rios told Allegro that Lugo “was taking over.” Thereafter, Allegro continued to purchase up to 4 ounces of cocaine per week from Lugo at various locations, including the trailer. Those amounts were included in the 14-plus kilograms of cocaine for which Lugo concedes responsibility.
Josh continued to purchase cocaine from Rios even after Allegro was no longer his buyer. By 2004, Josh moved to Chicago and, with his brother Ryan, started distributing cocaine in Iowa. Ryan lived in Dubuque and sold the cocaine Josh obtained from Rios. In approximately January 2005, the Lambert brothers got their cousin, James Pline, to assist them in their distribution efforts. At least 20 times between January 2005 and August 2005, Pline, who also lived in Dubuque, picked up cash from Ryan in Iowa and drove to Illinois to meet Josh. On these occasions, Pline gave the cash to Josh, who then provided Pline with at least one pound of cocaine to return to Ryan in Iowa.
Pline would generally meet Josh to make an exchange somewhere along Interstate 80 in Illinois. On two occasions, Pline picked up the cocaine in Kankakee from Rios. On the first occasion, Josh told Pline to go to Big House Customs where someone would meet him. When Pline arrived at that location, Rios was there to meet him. Pline gave Rios the cash he was transporting, and Rios put a box full of cocaine in the trunk of Pline’s car.
On the second occasion, in August 2005, Pline met Josh in Kankakee and followed him to Rios’s trailer. Pline and Josh met with Rios at the trailer. Pline gave Rios the cash he brought from Iowa, and Rios gave Pline a box containing 504 grams of cocaine to take to Iowa. On the trip back to Iowa, police officers stopped Pline’s car and seized the cocaine Rios had given Pline.
Pline never met Lugo or had any direct dealings with him. But the district court found that 4.5 kilos of cocaine Rios supplied to Josh and Pline for distribution in Iowa were includable as part of Lugo’s relevant conduct under U.S.S.G. § 1B1.3(a)(1)(B). We can disturb this finding only if it was clearly erroneous. United States v. Hollins, 498 F.3d 622, 629 (7th Cir.2007), cert. denied, 552 U.S. 1222, 128 S.Ct. 1324, 170 L.Ed.2d 135 (2008).
As we have said countless times, a defendant in a drug conspiracy “is liable for all quantities of drugs with which he was involved directly and any amounts attributable to his co-conspirators if those amounts were reasonably foreseeable to him.” Hollins, 498 F.3d at 629.
To determine a defendant’s responsibility for drugs based on the conduct of others, a sentencing court “must first determine the scope of the criminal activity the *33particular defendant agreed to jointly undertake (i.e., the scope of the specific conduct and objectives embraced by the defendant’s agreement).” U.S.S.G. § 1B1.3, comment, (n.2). If the court determines that the conduct of others was “both in furtherance of, and reasonably foreseeable in connection with, the criminal activity jointly undertaken by the defendant,” the court may hold the defendant responsible for that conduct. Id.
Lugo is responsible for not only the drugs with which he was directly involved, but also for “foreseeable quantities ... that were within the scope of the criminal activity that he jointly undertook.” Id.
There is no evidence that Lugo had direct dealings with either Pline or Josh. Therefore, in order to hold Lugo accountable for the cocaine Rios distributed to either of them, the government had to prove that the distributions were within the scope of the agreement between Rios and Lugo and were reasonably foreseeable to Lugo. We think the district court’s finding that the government met this burden is not clearly erroneous.
The scope of the cocaine distribution agreement between Rios and Lugo was very broad. When Rios relocated to Chicago, he placed Lugo in charge of the day-to-day operations of the organization. Rios told his distributors to contact Lugo to obtain their cocaine, and he empowered Lugo to collect drug payments and outstanding debts. Although Rios moved to Chicago, the drug operation remained centered in Kankakee, particularly at Rios’s trailer and at Big House Customs. As we have noted, Lugo continued to use Rios’s trailer to facilitate drug transactions, and he paid the rent for the trailer. Further, although Rios moved to Chicago, he didn’t cease his involvement in the distribution of the cocaine. While Rios turned the day-to-day operation over to Lugo, Lugo was aware that Rios maintained contact with distributors and supplied them with cocaine if they were unable to reach Lugo. In short, Lugo occupied a central role in the conspiracy for some 18 months, and during that time he knew that Rios continued to be an active member of the cocaine distribution enterprise. These facts show that Lugo’s agreement with Rios was not limited to supplying only a few dealers in the Kankakee area. Rather, Lugo agreed to assist Rios in the distribution of cocaine as a trusted coconspirator. This broader view of the scope of the joint activity, coupled with Lugo’s knowledge of Rios’s continuing involvement in the actual supplying of cocaine to distributors, supported the district court’s conclusion on relevant conduct.
Lugo emphasizes that he did not know nor have any direct dealings with Pline. A good point of argument, but it is not dis-positive. Relevant conduct determinations do not require a defendant to personally handle drugs in order to be accountable for them. See United States v. Nubuor, 274 F.3d 435, 443 (7th Cir.2001). A defendant does not have to be “involved in or even have direct knowledge of a particular transaction” in order to be held accountable for drug quantities. Hollins, 498 F.3d at 630 (citing United States v. Flores, 5 F.3d 1070, 1083 (7th Cir.1993)). As 5.08 of the Seventh Circuit Jury Instructions makes clear, to be accountable as a member of a conspiracy, a defendant need not “know all the other members or the means by which its purpose was to be accomplished.”
Lugo relies on two cases to support his argument — United States v. Fox, 548 F.3d 523 (7th Cir.2008), and United States v. McDuffy, 90 F.3d 233 (7th Cir.1996). Both are distinguishable.
In Fox, the defendant, at the behest of his coconspirator, made a single sale of *34crack to an undercover police officer. 548 F.3d at 525. Two weeks after the sale, the police searched the coconspirator’s house and found an additional 40 grams of crack. Id. At sentencing, the district court held the defendant responsible for both the crack he distributed to the officer and the crack found at the coconspirator’s house. Id. at 528. We vacated the sentence, noting that the only conduct in the record involving any joint criminal activity between the defendant (who was a crack addict) and his coconspirator was the defendant’s single sale of crack and his spending time at the coconspirator’s house to get high.
Unlike the situation in Fox, the relationship between Rios and Lugo was far from limited to a single sale of cocaine. Their joint activity was expansive and involved sales to many individuals over a long period. The single-sale scenario in Fox is considerably different from the repetitive sales of cocaine made by Rios and Lugo. McDujfy, the other case on which Lugo relies, also involved an isolated sale.
As we see it, the evidence clearly suggests that Lugo was a manager of his brother-in-law’s cocaine operation and that Rios’s dealings with both Josh and Pline were clearly foreseeable objects of them conspiracy. The disputed amounts of cocaine were properly put into Lugo’s relevant conduct basket.
Resolving Rios’s appeal doesn’t require much ink. His guideline range, not challenged on appeal, was 324-405 months. The government asked for 360. The judge decided on 324. Because the range was accurately determined and the sentence was not only within, but also at the bottom of the range, it is presumed to be reasonable. We thus review it only for an abuse of discretion.
Rios’s appeal rests on his claim that his sentence is based on misinformation. The “district court repeatedly referred to this as a case involving crack cocaine,” says Rios. Plus, the district court “characterized” him as a “career offender.”
For one thing, the district court presided over a nine-day jury trial. It knew the case involved powder, not crack, cocaine. The court’s references at sentencing to crack cocaine cases were made in the context of explaining how serious Rios’s conduct was. This case, the judge explained, was much more serious than a run-of-the-mill crack case. True, the judge did say at one point that this case involved “a highly sophisticated crack cocaine business,” but in context that was no more than a slip of the tongue. That is especially so when we note that at another point, the judge said Rios’s case involved “big-time powder.”
Rios also claims the district court mistakenly characterized him as a career offender. However, the court did not sentence Rios as if he were classified as a career offender. Instead, responding to Rios’s counsel’s argument that the government’s sentencing recommendation was akin to one appropriate for a career offender, which Rios was not, the district court remarked that Rios had been acting like a career offender for several years. The court’s comment did not suggest that Rios was a “career offender” for guidelines purposes, and the court did not sentence Rios as if he were classified as a career offender.
Finally, we find no abuse of discretion in the court’s decision to keep him in criminal history category II against a claim that it overrepresented his record.
For these reasons, the sentences imposed by the district court in this case are AFFIRMED.
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https://www.courtlistener.com/api/rest/v3/opinions/8474774/
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ORDER
Plaintiff Earl Rome, acting as Special Administrator for the Estate of Christine Rome, his deceased wife, appeals the district court’s grant of summary judgment on his 42 U.S.C. § 1983 claim against Richard A. Meyers in his official capacity as Sheriff of Winnebago County, Illinois. The complaint alleges that Meyers failed to provide adequate training to the correctional officers at the Winnebago County Jail and that this failure prevented Christine Rome (“Rome”) from receiving proper medical care during her period of incarceration, which in turn caused Rome’s wrongful death. Finding no error below, we affirm.
I. Background
We begin with a brief review of the tragic circumstances that gave rise to this litigation. On July 5, 2003, Rockford Po*36lice arrived at the residence of Christine and Earl Rome in response to a report that Rome was behaving in a disorderly manner. The police observed Rome outside her home — she was walking around naked, yelling, and talking to herself. When Rome was informed that she was to be arrested for disorderly conduct, she began yelling at the officers and assumed a “fighting stance.”
Rome’s combative behavior continued as she was processed through the Winnebago County Jail. Rome refused to sign any paperwork or answer any questions about her medical history. Although Rome was placed in a special cellblock for inmates under observation and continued to act in a bizarre and unruly manner, she did not receive any medical care for six days. On July 11 nurses from Health Professionals, Ltd., the independent medical services provider hired by the Winnebago County Jail to handle the medical treatment of its inmates, began administering prescription medicine to Rome. This treatment continued for the next two days, although it was evidently hindered by a variety of factors, including Rome’s refusal to take the medication and an inadequate supply of some of the prescribed medicines.
Dan Feigel, a court-appointed psychologist, evaluated Rome on July 11. Feigel noted that Rome would not wear clothes, refused to cooperate with correctional officers, and resisted taking her medications. Feigel also indicated that Rome was not in contact with reality, was responding to auditory hallucinations, and would continue to yell and scream throughout most of the day.
Rome’s unsound mental condition was also evidenced by her living conditions. On July 14 correctional officers observed that Rome had food all over her body and that her cell reeked of urine, feces, and old food. Rome was forcibly transported to the shower room where she was left to sit under the streaming water for 15 minutes while her cell was cleaned.
It was not until July 17 that Rome finally came under the care of a physician on the medical staff of the Winnebago County Jail. As a result of this examination, Rome was referred to the emergency department at Swedish American Hospital in Rockford for further observation of her hydration levels, mental illness, and left knee. Rome remained at the hospital from July 17 until July 23, at which time she experienced renal failure and died. This litigation then ensued.
II. Discussion
We review the district court’s grant of summary judgment de novo, construing all facts and reasonable inferences in favor of Earl Rome, the nonmoving party. Clancy v. Geithner, 559 F.3d 595, 599 (7th Cir.2009). As the district court correctly observed, the claims against Meyers, acting in his official capacity as Sheriff, are treated as claims against Winnebago County itself. Grieveson v. Anderson, 538 F.3d 763, 771 (7th Cir.2008). Governmental entities cannot be held liable for the unconstitutional acts of their employees unless those acts were carried out pursuant to an official custom or policy. Id. In order to survive summary judgment on a § 1983 official-capacity claim, the plaintiff must present evidence demonstrating the existence of an official custom or policy and that the custom or policy was the cause of the alleged constitutional violation. Id.
The Supreme Court has stated that under limited circumstances, a municipality’s failure to train may amount to an official custom or policy that can serve as the basis for liability under § 1983. City of Canton v. Harris, 489 U.S. 378, 387, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989). Establishing municipal liability on the failure *37to train requires proof of “deliberate indifference” to the rights of persons likely to come in contact with the municipality’s employees. Id. at 388, 109 S.Ct. 1197. We have held that such proof can take the form of either “(1) failure to provide adequate training in light of foreseeable consequences; or (2) failure to act in response to repeated complaints of constitutional violations by its officers.” Sornberger v. City of Knoxville, 434 F.3d 1006, 1029-30 (7th Cir.2006).
The estate was unable to satisfy either method of proof articulated in Sornberger. With respect to the first, the district court correctly concluded that the estate failed to present sufficient evidence that either (a) the correctional officers at Winnebago County Jail received inadequate training in how to respond to medical situations, or (b) it was foreseeable that an inmate suffering from considerable mental illness could face imminent death due to some other physical ailment. As the estate concedes, Meyers did have policies in place instructing his officers how to identify and care for inmates with medical issues. Furthermore, correctional officers were required to attend training sessions that included instruction on how to deal with inmates with mental-health issues. Clearly the Winnebago County Jail could have done a much better job handling Rome’s condition. But the estate fails to identify any meaningful systemic problem with the way in which these correctional officers are trained.
The estate fares no better with Somber-ger’s second method of proof. Indeed, the estate does not identify any other alleged constitutional violations that the correctional officers of the Winnebago County Jail have committed. Accordingly, the district court properly entered summary judgment in favor of Meyers.
AFFIRMED.
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8474776/
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ORDER
In this employment discrimination case, Brian Lampley, an African American, sued *43his former employer, Pollution Control Industries of America (“Pollution Control”), for race discrimination. See Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. Lampley, however, failed to respond to Pollution Control’s summary judgment motion in violation of N.D. Ind. L.R. 56.1(a), and so the district court deemed admitted Pollution Control’s version of the facts. The court went on to grant summary judgment for Pollution Control, determining that Lampley failed to raise any genuine fact issue supporting a prima facie case of race discrimination. Lampley appeals, and we affirm.
Because Lampley did not oppose the motion for summary judgment, we, like the district court, accept the facts as presented by Pollution Control. See Cracco v. Vitran Express, Inc., 559 F.3d 625, 632 (7th Cir.2009). Lampley began working for Pollution Control as an at-will employee in 2002. In 2006, after an employee reported that Lampley had returned from his lunch break smelling of alcohol, two supervisors escorted Lampley to a hospital for drug and alcohol tests. While waiting at the hospital, Lampley told his supervisor, “you will pay for this one.” When his supervisor asked if he intended the comment as a threat, Lampley acknowledged that he did. Pollution Control suspended Lampley pending an investigation into allegations that he had violated the workplace violence provisions of the Employee Handbook by threatening a supervisor. After the threat was confirmed by a hospital nurse who had been sitting nearby, Pollution Control closed the investigation and fired Lampley.
Lampley brought this discrimination action under Title VII and 42 U.S.C. § 1981a, alleging that Pollution Control used a harsher hand with him than with white employees who had engaged in similar conduct. When Lampley failed to respond to Pollution Control’s motion for summary judgment, Magistrate Judge Paul Cherry, proceeding with the parties’ consent, adopted Pollution Control’s version of the facts, concluded that Lampley failed to establish a prima facie case of race discrimination under either the direct or indirect, burden-shifting method, and granted the motion. With regard specifically to the indirect method, the court found that Lampley failed to establish that he was treated less favorably than similarly situated white employees. The court concluded that the three individuals identified by Lampley — -Art Cadena, Ronald Artist, and James Heiser — were not comparable because they were not accused of violating the company’s workplace violence policy.
On appeal Lampley argues that the district court erred in granting summary judgment because the evidence supports a prima facie case of discrimination — even on Pollution Control’s uncontested version of the record. Specifically Lampley challenges the district court’s determination that Pollution Control did not provide favorable treatment to similarly situated white employees.
Under the indirect method of proof, Lampley must prove a prima facie case by showing, among other things, that a comparable employee outside his protected class received better treatment. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); McGowan v. Deere & Co., 581 F.3d 575, 579 (7th Cir.2009); Adams v. Wal-Mart Stores, Inc., 324 F.3d 935, 939 (7th Cir.2003). In the context of a disciplinary action, we normally rely on a showing that the employees engaged in similar conduct, were subject to the same performance standards, and dealt with the same supervisor. Peirick v. Indiana Univ.-Purdue Univ. Indianapolis Athletics Dept., 510 *44F.3d 681, 688 (7th Cir.2007); Radue v. Kimberly-Clark Corp., 219 F.3d 612, 617-18 (7th Cir.2000).
Lampley renews his argument that his three former white colleagues — Art Cade-na, Ron Artist, and James Heiser — received more lenient treatment from Pollution Control. First, Lampley contends that Pollution Control let Cadena off with just a warning after a nurse who was administering his physical examination complained that she felt intimidated by some of his comments. But the district court properly distinguished Cadena’s conduct, observing that he was addressing a third party, not a supervisor, and that he was reprimanded not for making threats but rather for making “rude” remarks. See Adams, 324 F.3d at 940 (employees not similarly situated because eating a coworker’s pudding was not comparable to stealing employer’s money).
For similar reasons, the district court found that Ron Artist, Lampley’s second comparator, was also not similarly situated. Artist received a three-day suspension after an alcohol-related incident at work. But Artist’s misconduct ended with alcohol abuse, whereas Lampley’s escalated to a threat against his supervisor — the immediate cause of his termination. In the absence of any evidence that Artist was disciplined under the workplace violence rules, the district court correctly concluded that the two instances of misconduct are not sufficiently comparable. See id.; Peele v. Country Mut. Ins. Co., 288 F.3d 319, 330 (7th Cir.2002).
Finally, Lampley contends that Heiser got off with merely a three-day suspension after threatening a supervisor who had asked him to work overtime. But based on Pollution Control’s version of the facts, which the district court accepted as true, Heiser’s comment was merely obscene and not threatening, and the company suspended him on the milder charge of insubordination. The district court was thus correct to conclude that Heiser and Lamp-ley had not engaged in materially similar conduct. See Adams, 324 F.3d at 940; Radue, 219 F.3d at 618-19 (concluding that plaintiffs substantial performance problems precluded a finding that he was similarly situated to comparators).
AFFIRMED.
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01-04-2023
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ORDER
On the second-to-last day of Keith Cook’s trial for embezzlement and falsifying union records, just before the government rested, Cook’s lawyers informed the district court that he would testify but they needed time to help him prepare. Counsel asked the court to adjourn for the day, but the court denied this request. Cook then testified, and on the next day of trial was found guilty of both charges. On appeal he challenges the denial of his request for a continuance. We uphold the district court’s ruling and affirm Cook’s convictions.
Through his work as a railroad conductor, Cook became secretary-treasurer of his local transportation union. He served from 2002 until 2004, when an auditor discovered that Cook had written himself a number of unauthorized checks on union *47accounts totaling over $45,000. Following an investigation the government charged Cook with embezzling the assets of a labor organization, 29 U.S.C. § 501(c), and making a false entry in union records required to be kept by law, id. § 439(c). Over the next 17 months, Cook twice succeeded in getting his appointed counsel replaced— the second time on the eve of trial — and twice the parties reached a plea agreement only to have Cook change his mind at the change-of-plea hearing.
Once trial began the district court’s schedule required multiple breaks in the proceedings, so the trial ran September 2-3, 8-9, 12, and 15, 2008. On Friday, September 12, following a two-day recess, defense counsel told the court that Cook had decided on Tuesday that he would testify, but they had not succeeded in meeting with him on Wednesday or Thursday to go over his testimony. Counsel explained that Cook, who was on bond, had missed multiple appointments with them during the recess because he was called in to work, and traffic that morning had prevented him from arriving at their office early enough to prepare. In light of this lack of preparation, Cook’s counsel moved for a continuance until Monday, September 15. Prosecutors opposed the motion, arguing that they always had believed Cook would testify and that he had been given adequate time to prepare given the delays in bringing the case to trial. The court agreed that there had been “ample opportunity” to prepare. The court explained that the case had been “problematic” to get to trial even though it was not complicated, and once the trial got underway Cook had not made it a priority or taken advantage of the “very liberal” schedule. The court also noted that it had another case scheduled for trial immediately after Cook’s, and with only one jury room it could not “risk any further day” in the case. In light of what the court characterized as Cook’s “machinations” in preventing the trial from starting sooner and his “audacity to not prepare and to want to testify,” the court denied the motion. But the court did recess for an early and longer lunch to allow Cook some time to prepare; after lunch Cook took the stand. Trial concluded on Monday with closing arguments, and the jury returned guilty verdicts on both charges late that same day. The court later sentenced Cook to a total of one year and a day in prison.
We review the denial of a continuance for abuse of discretion and will not reverse absent a showing of actual prejudice. United States v. Miller, 327 F.3d 598, 601 (7th Cir.2003); United States v. Tolliver, 937 F.2d 1183, 1187-88 (7th Cir.1991). A district court may evaluate any number of factors in deciding whether a continuance is justified, including the age and complexity of the case, the amount of time already made available for preparation and the defendant’s role in shortening the effective preparation time, whether the defendant has tried to “game” the system, the availability of discovery, the likelihood that a continuance will satisfy the defendant’s needs, whether the government opposes the proposed continuance, the inconvenience or hardship to the court or others, and the likelihood that denying a continuance will prejudice the defendant. See United States v. Williams, 576 F.3d 385, 390 (7th Cir.2009); Miller, 327 F.3d at 601; United States v. Chiappetta, 289 F.3d 995, 999 (7th Cir.2002). The importance of any single factor depends on the individual circumstances of a case, and assigning the relative weight of the factors is best left to the discretion of the district court. Williams, 576 F.3d at 389; Miller, 327 F.3d at 601.
Two cases with opposite outcomes help to illustrate the application of these factors. In United States v. Farr, we held *48that the trial judge did not abuse his discretion in denying the defendant’s request for a continuance made on the morning of trial. 297 F.3d 651 (7th Cir.2002). We reasoned that the denial was proper because the defendant had been granted two continuances already and counsel’s lack of preparation for trial clearly resulted from the defendant’s consistent refusal to cooperate with his attorney and assist in the preparation of his defense. Id. at 656. We concluded that we would not find error in the denial of a continuance “[wjhere a defendant’s obstinate behavior played a significant part in undermining the ability of counsel to prepare for trial.” Id. Conversely, in United States v. Heron, we held that the district court abused its discretion in denying a continuance where on the day before trial a key prosecution witness had changed his planned testimony in a manner that portrayed the defendant as an active, rather than reluctant, participant in the transportation of drugs. 564 F.3d 879, 881-83 (7th Cir.2009). We noted that the defendant had essentially no time to prepare for the changed testimony and did not contribute to the time pressure, and that a continuance would have allowed him to investigate this “crucial piece” of new evidence. Id. at 883.
In denying Cook’s request for a continuance, the district court focused on the age of the case, Cook’s role in shortening the available time for preparation, Cook’s previous “machinations” in delaying the case for trial, and the inconvenience a postponement would cause to the court given its pending case load. Although these are acceptable considerations, see Chiappetta, 289 F.3d at 999; Williams, 576 F.3d at 389, Cook argues that the district court nonetheless abused its discretion because any inconvenience to the court would have been minimal while denying the continuance directly prejudiced his right to testify. Cook’s jury returned guilty verdicts at almost 5:00 p.m. on Monday, so the court guessed correctly that postponing his testimony until that morning would have pushed the trial into Tuesday and delayed the start of the court’s next trial. Whatever Cook might think about the significance to the court of losing another day from its schedule, the judge had discretion to assess the burden on his case load along with any of the other relevant factors. See Miller, 327 F.3d at 601. We have noted that the “typical reasons to deny a continuance are that the defendant shortened her own preparation time and that a delay will burden the court.” Williams, 576 F.3d at 390. Cook’s failure to meet with his attorneys during the two-day recess before he testified parallels the defendant’s actions in Farr, where we upheld the denial of a continuance in light of the defendant’s “obstinate behavior” and consistent refusal to assist in the preparation of his defense. See 297 F.3d at 656. Unlike in Heron, where circumstances outside the defendant’s control created a shortage of time to prepare, Cook was at fault for deciding that going to .work was more important than keeping his appointments with counsel during the two days he could have been preparing. See 564 F.3d at 883. Even if a continuance would have caused only minimal delay to the district court’s pending trial schedule, given the amount of time that had elapsed between the indictment and the trial, the two-day recess during which Cook could have prepared to testify if he had opted to miss a day of work, and what the district court perceived as Cook’s history of “machinations” to game the system, we find that the court did not abuse its discretion in refusing to grant a continuance.
That conclusion is reinforced by Cook’s failure to explain how denying the requested continuance prejudiced him. Cook asserts that his lack of preparation preju*49diced his right to testify. Cook did testify, but he contends — without elaboration— that with more preparation he would have been better able to answer the government’s questions on cross-examination, and in turn the government would not have been able to negatively focus on his testimony during its closing argument. In order to find prejudice we require a defendant to show specifically what material difference a continuance would have made. In United States v. Vincent, we affirmed the denial of a continuance where the defendant claimed that he needed more time to examine discovery materials and prepare to cross-examine the government’s witnesses but “neither pointed to exculpatory evidence he would have found in the discovery nor proposed additional questions he would have asked the government’s witnesses.” 416 F.3d 593, 599 (7th Cir.2005). Here, similarly, Cook does not explain how his testimony would have differed and benefitted his case if he had been granted a continuance. He does not specify what answers he would have given during the government’s cross-examination if he had additional time to prepare or how those answers would have positively affected the jury. Under Vincent his unsupported assertion of prejudice is insufficient. See id.
Accordingly, we AFFIRM the district court’s judgment.
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ORDER
While on supervised release for a 1999 fraud conviction, Derrick Mosley tried to extort money from gospel artist DeLeon Richards-Sheffield, the wife of former New York Yankees player Gary Sheffield. *51Mosley’s attempt led both to the revocation of his supervised release and to new federal convictions for using interstate communications to extort money, 18 U.S.C. § 875(d), and wire fraud, id. § 1343. In these consolidated appeals Mosley challenges the new convictions and the term of reimprisonment he received on revocation of his supervised release.
Mosley’s extortion scheme started with a November 2004 e-mail to Riehards-Shef-field. There he asserted that he possessed a video tape of her having sex with singer-songwriter Robert “R.” Kelly. When Mosley did not receive a reply to his email, he phoned the Yankees’ media-relations department; someone there referred him to Rufus Williams, Sheffield’s agent and manager, and Williams in turn contacted the FBI.
Over the next ten days Williams, now cooperating with the FBI, recorded a series of phone conversations and meetings with Mosley, a self-described minister and community activist. Mosley expressed moral outrage about the tape and asserted that he was worried that disclosure could hurt Richards-Sheffield’s reputation. He opined that she desperately needed spiritual counseling, which he (conveniently) could provide — along with the tape — for $20,000. Mosley reminded Williams that anyone else might have sold the tape to a tabloid, and he threatened to “move forward” if a deal was not struck. He was arrested after giving Williams the number of an account to which he wanted the money wired.
At his trial in November 2005, Mosley did not present any evidence. His lawyer argued that Williams had misunderstood Mosley’s intentions, which were only to help Richards-Sheffield. The jury found the government’s story more persuasive and convicted Mosley; he was sentenced in January 2006 to 27 months in prison and five years of supervised release. The district court ordered Mosley to undergo a mental-health evaluation as a special condition of supervision. Meanwhile, the new convictions prompted the government to move to revoke Mosley’s supervised release from his 1999 bank fraud conviction. A different judge of the district court obliged in June 2006 and imposed a sentence of 15 months in prison and two years’ supervised release; the prison term was to run consecutively to the new sentence, and the supervised release was to be concurrent with Mosley’s supervision on the new convictions. Mosley completed the consecutive prison terms in February 2008 and has started his terms of supervised release.
Mosley is acting pro se in these appeals, but in the district court he was represented by appointed counsel. In the first of his four challenges to the new convictions, Mosley argues that the district court erred in denying his lawyer’s two, ex parte requests for authorization to hire a private investigator. See 18 U.S.C. § 3006A(e). The district court had rejected the requests for several reasons: Mosley, it found, was exaggerating the scope of the charges; he was capable of investigating the case without help; and he had failed to furnish adequate proof of his indigence. Mosley then resubmitted essentially the same skeletal request but with financial information and a list of twelve people he wanted interviewed; the court again denied the motion. It commented that Mosley could hire an investigator himself with the $40,000 in currency that he admitted having in his apartment.
Our review is for abuse of discretion. United States v. King, 356 F.3d 774, 778 (7th Cir.2004). Under the Criminal Justice Act, courts may authorize additional services that are “necessary for adequate representation.” 18 U.S.C. § 3006A(e)(1); *52see United States v. Smith, 502 F.3d 680, 686 (7th Cir.2007), cert. denied, 552 U.S. 1206, 128 S.Ct. 1270, 170 L.Ed.2d 105 (2008). An indigent defendant wanting to hire an investigator must first provide a specific statement explaining the need, United States v. Knox, 540 F.3d 708, 718 (7th Cir.2008), cert. denied, — U.S.-, 129 S.Ct. 1525, 173 L.Ed.2d 656 (2009); United States v. Goodwin, 770 F.2d 631, 634 (7th Cir.1985). If he does so, the court must then assess whether an investigator is likely to help the defendant establish a “plausible defense.” See United States v. Winbush, 580 F.3d 503, 509-10 (7th Cir.2009). These requirements ensure that the government is not asked to fund a “fishing expedition.” Knox, 540 F.3d at 719.
The district judge did not abuse his discretion in denying Mosley’s two requests. Mosley never explained how an investigator could help his case other than to relieve counsel of the task of interviewing potential witnesses. All but a few of the twelve people he had identified had no conceivable link to a plausible defense. Among them were the intended extortion victim and her mother, as well as three persons who possessed the video tape pri- or to Mosley’s arrest; Mosley has yet to explain how sending an investigator to interview those persons could have helped him convince the jury that his intentions were misunderstood. This was an uncomplicated case, and Mosley supplied most of the evidence with his e-mail and recorded statements. Under the circumstances, there is no reason to disturb the district court’s ruling.
Mosley’s second argument is that the district court should have suppressed an oral statement that he made immediately after his arrest. When FBI agents arrested Mosley at his apartment, Special Agent Timothy Keese told Mosley that the charges related to a sex video of Richards-Sheffield and asked for consent to look for the tape. Mosley, who had not yet received Miranda warnings, refused to give consent and added that he “already destroyed the tape.” Later at the FBI office Mosley talked to Agent Keese at length, during an interview that was preceded by Miranda warnings and was not challenged at trial.
Mosley argued that his comment to Special Agent Keese was a response to a pre-Miranda, custodial interrogation, but the district court rejected that contention. We agree with that conclusion; a request for consent to search does not constitute interrogation because it is not likely to elicit an incriminating response. See, e.g., United States v. Bustamante, 493 F.3d 879, 892 (7th Cir.2007); United States v. McClellan, 165 F.3d 535, 544 (7th Cir.1999). Since there was no dispute about the underlying facts, there was also no need for an eviden-tiary hearing before the court ruled on his motion. See United States v. Walker, 237 F.3d 845, 850 (7th Cir.2001).
Mosley’s third argument for reversal rests on a statement made by the prosecutor assigned to handle his detention hearing. In arguing that the strength of the government’s case was a factor favoring detention, see 18 U.S.C. § 3142(g)(2), the prosecutor noted that FBI agents were reviewing video tapes seized from Mosley’s home and that one of those tapes appeared to be the video described by Mosley in his discussions with Williams. The tapes mentioned by the prosecutor had surfaced when, three days before the detention hearing, Mosley’s lawyer had notified the prosecutor and Agent Keese that—according to Mosley—the video of Richards-Sheffield and R. Kelly was still in Mosley’s apartment. Counsel relayed Mosley’s offer to surrender the tape if he was released from jail, but agents *53instead obtained a search warrant and seized several tapes from the apartment, including two that appeared to depict women engaging in sexual activity with R. Kelly. At first the agents believed that one of those women was Richards-Sheffield, but later they confirmed that it was not, and no video of her ever was found. But at the detention hearing defense counsel, who days earlier had passed along Mosley’s own representation that Richards-Sheffield was depicted in one of the tapes, did not contradict the prosecutor when she proffered that the tape at the heart of Mosley’s extortion attempt was apparently in the hands of the agents. Six months later, Mosley moved to dismiss the indictment on the ground that the prosecutor had lied about possessing the tape in order to bolster the government’s case for detention. The district court called that contention frivolous and observed that the prosecutor’s statement was qualified and, as far as the record showed, was based on what was then known to her and the agents.
Dismissal of a criminal case is not the remedy for prosecutorial misconduct that does not prejudice the defendant, see United States v. Childs, 447 F.3d 541, 545 (7th Cir.2006), and since Mosley’s complaint concerns only a proffer made at a pretrial detention hearing, the jury’s guilty verdicts would have erased any harm flowing from unwarranted pretrial custody, see Murphy v. Hunt, 455 U.S. 478, 481-82, 102 S.Ct. 1181, 71 L.Ed.2d 353 (1982). We are also puzzled by the premise that the prosecutor could have overstated the strength of the government’s evidence by proffering that a sex tape apparently existed, when the prosecutor’s information originated with Mosley through his lawyer. But all of these are tangential points because, as the district court recognized, Mosley had no factual basis for this serious accusation of misconduct.
In his motion Mosley did not deny that agents had found a number of video tapes in his apartment, nor did he say that he had watched or even inquired about those tapes before accusing the prosecutor of lying. At least two of the tapes the agents were reviewing did depict sexual activity, and at first the agents believed that Richards-Sheffield was in one of those videos. That conclusion squared with what Agent Keese and the prosecutor had been told by defense counsel, and even Mosley had admitted to Williams during a recorded conversation that he, too, initially misidentified a woman with R. Kelly in one of the sex videos as Richards-Sheffield. The most that one can glean from the record is that both the prosecutor and defense counsel thought at the time of the detention hearing that a tape of Richards-Sheffield and R. Kelly was in the government’s possession. Mosley’s later accusation of misconduct was unfounded.
Mosley’s final challenge to his convictions under § 875(d) and § 1343 is even weaker than the others. He argues that Judge Der-Yeghiayan should have granted his pro se motion for recusal, which the court labeled as frivolous but denied because it was not filed by Mosley’s lawyer. That ruling was correct; a defendant who is represented by counsel does not have the right to file his own pro se submissions. United States v. Williams, 495 F.3d 810, 813 (7th Cir.2007); United States v. Gwiazdzinski, 141 F.3d 784, 787 (7th Cir.1998). Moreover, all of Mosley’s arguments for recusal rested on his belief that the judge’s pretrial rulings and courtroom comments showed him to be in cahoots with the government, but Mosley did not allege that anything the court said or did was in response to information derived from an extrajudicial source. Thus, whether Mosley was asserting actual bias, *54see 28 U.S.C. §§ 144, 455(b)(1), or the appearance of bias, see id. § 455(a), his allegations did not present a valid basis for disqualification. See Liteky v. United States, 510 U.S. 540, 553-54, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994) (concluding that the extrajudicial source requirement also applies to § 455(a)).
We thus affirm the judgment in case no. 06-1478, and turn to Mosley’s related appeal, case no. 08-3054. After Mosley was released from prison, his probation officer sought to implement the special condition of supervised release requiring Mosley to submit to a mental-health evaluation. In June 2008, Mosley filed a pro se motion asking the court to stay enforcement of that condition pending the resolution of his direct appeal. Mosley characterized the required evaluation as just more evidence of bias, and when the judge refused to stay its implementation, Mosley filed a notice of appeal. His only contention, however, is that the condition should have been stayed until we decided his direct appeal, and he makes no argument that it was error to order the mental-health evaluation as a special condition of supervised release. The parties do not say whether the evaluation went forward after Mosley’s request for a stay was denied, but our resolution of his direct appeal has rendered moot the question about delaying its enforcement.
Mosley’s remaining appeal, case no. 06-2740, concerns Judge Shadur’s revocation of his supervised release from his 1999 conviction for bank fraud, see 18 U.S.C. § 1344. Mosley had been sentenced to twelve months and one day in prison, along with five years of supervised release. He contends only that the district court overstated his criminal history category — from III to IV — when calculating the advisory guidelines range for reimprisonment. Mosley did not make this argument at the revocation hearing. The government concedes the mistake, which increased the upper end of the advisory range from 14 to 18 months, but argues that Mosley has not established plain error.
When revoking a term of supervised release, the district court looks to U.S.S.G. § 7B1.4(a) in calculating the range for re-imprisonment. That policy statement makes clear that the criminal history category from the original sentencing is to be used again. See id. § 7B1.4(a) cmt. n. 1. Mosley had a criminal history category of III when he was sentenced in 1999, and thus it was error to use a higher category to calculate his range of reimprisonment. Because we are reviewing only for plain error, however, it is Mosley who bears the burden of demonstrating an error that is plain, that affects his substantial rights, and that, if left uncorrected, seriously affects the “fairness, integrity, or public reputation of judicial proceedings.” United States v. Olano, 507 U.S. 725, 732-36, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). The error here is plain, and it arguably affected Mosley’s substantial rights because the transcript of the revocation hearing suggests that Judge Shadur was inclined to impose a term of reimprisonment in the middle of the policy-statement range, which, if correctly calculated, would have been 8 to 14 months.
Nevertheless, this is an error that has no practical consequences for Mosley. Even if we were to remand the case, no change in Judge Shadur’s revocation sentence could provide Mosley with any meaningful relief. Mosley’s term of reimpris-onment cannot be shortened because he has already served his time, and any extra time he arguably spent in prison cannot be credited towards his supervision. United States v. Johnson, 529 U.S. 53, 58-59, 120 S.Ct. 1114, 146 L.Ed.2d 39 (2000). Although Judge Shadur could decide to shorten the two-year term of supervised re*55lease to compensate for the error, Mosley will still be serving the longer, concurrent term of supervised release imposed by Judge Der-Yeghiayan for his new convictions and thus his overall time on supervision will not change. The fourth prong of the plain error test is thus not satisfied— the integrity of the judicial system is not compromised by an error that cannot be remedied, particularly when a remedy would have been available if Mosley had raised a timely objection to the miscalculation in the district court.
The judgments in case nos. 06-1478 and 06-2740 are Affirmed. Case no. 08-3054 is Dismissed.
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ORDER
On October 30, 2009, counsel for Defendant-Appellant Brent Terry filed a Petition for Panel Rehearing which contained Terry’s pro se Petition for Rehearing With Suggestion for Rehearing En Banc, as an *59attachment, and we will consider it as being incorporated by reference.
On September 17, 2009, 582 F.3d 686, this panel affirmed Terry’s convictions. One of Terry’s arguments on appeal was that a fatal variance existed because the evidence was insufficient to prove that he participated in any part of the charged conspiracies other than the Townsend ripoff at 87th and Michigan. We held that the evidence was sufficient to allow a reasonable jury to find him guilty of the conspiracies with which he was charged. In addressing the substantial evidence that supported this conclusion, the opinion discussed and quoted an October 7, 2004, recorded conversation between Broderick Jones and Terry in which Jones said, “you good.... I’m thinking like damn, that man got a demo,” to which Terry responded, “Which, which one you talking about?” We concluded that Terry’s question implied that there were several “demos” and thus supported the inference that Terry participated in more than one ripoff. This conclusion rested on the view that “demo” meant criminal activity. However, in discussing that October 7th conversation, the opinion stated parenthetically at page 20 that “(Jones testified that ‘demo’ meant criminal activity.)” Terry and his counsel in the petitions for rehearing correctly note that Jones did not testify at trial.
Terry seeks rehearing by the panel, contending that this error may have affected the analysis of the sufficiency of the evidence as related to his variance claim. Though the opinion incorrectly attributed this explanation for the term “demo” to Jones, the record nonetheless readily supports a reasonable inference that “demo” as used in the context of this recorded conversation meant “criminal activity.” This factual error did not affect this court’s conclusion that there was sufficient evidence to establish that Terry participated in the conspiracies alleged in the indictment and that his participation went further than the Townsend ripoff. The opinion discusses the evidence, including other recorded conversations between Terry and Jones, telephone records reflecting phone calls between Terry and Jones the day of the July 21 attempted ripoff, and Terry’s participation in the Townsend ripoff with Flagg, which supports Terry’s conspiracy convictions. Therefore, the opinion issued on September 17, 2009, is now amended as follows:
The parenthetical at slip op. 20, line 18 is corrected to read (The record supports a reasonable inference that “demo” as used in this context meant criminal activity.)
Terry’s incorporated pro se Petition for Rehearing With Suggestion for Rehearing En Banc (which, as noted, was attached to his counsel’s Petition for Panel Rehearing), adds nothing to counsel’s petition that would warrant panel rehearing. Accordingly, Terry’s Petition for Panel Rehearing submitted by counsel is denied.
There is some confusion regarding Terry’s intention with respect to his pro se Petition for Rehearing With Suggestion for Rehearing En Banc. Apparently, Terry sent that petition to his counsel, but there is no indication that Terry sent the petition to or filed it with the court. However, his counsel may have believed that it was filed, based on their statement that counsel’s Petition for Rehearing “supplements” Terry’s pro se petition on one limited issue (presumably the “demo” matter) but that it does not “supersede” the pro se petition on any other ground. The point of mentioning this is that in addition to seeking panel rehearing, the pro se petition also suggests rehearing en bane, whereas counsel’s petition did not.
This raises the question of whether Terry’s pro se petition should be accepted and *60filed by the Clerk. It was received by Terry’s counsel prior to the extended deadline for filing a petition for rehearing, and perhaps Terry thought by sending it to his counsel that it would be filed with the court. According to an affidavit attached to a motion to extend the time for filing a petition for rehearing, Terry’s counsel had notified him that they did not intend to file a petition for rehearing on his behalf. The affidavit further notes that counsel had advised Terry that he had the option of filing a pro se petition for rehearing. And, in fact, the pro se petition, or at least a copy of it, was received by the Clerk before the expiration of the time for filing a petition for rehearing because it was attached as an exhibit to counsel’s timely Petition for Panel Rehearing. To eliminate any confusion about this, we direct the Clerk to accept and file the copy of Terry’s pro se Petition for Rehearing With Suggestion for Rehearing En Banc attached to his counsel’s Petition for Panel Rehearing. We deem the pro se petition to be timely. To the extent that the pro se petition seeks panel rehearing, it has already been denied through this order. It will be further considered only insofar as it suggests rehearing en banc and the Clerk is directed to distribute copies of the pro se petition to the members of the court. The time for consideration of the suggestion for rehearing en banc under the Operating Procedures of the court will begin on the date of distribution.
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Dismissed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Salame M. Amr seeks to appeal the district court’s order denying his motion to supplement the record for the appeal to this court of his underlying civil case. Because our decision in that appeal has issued, Amr v. Virginia State Univ., 331 Fed.Appx. 194 (4th Cir.2009) (unpublished), this appeal is now moot. See Incumaa v. Ozmint, 507 F.3d 281, 286 (4th Cir.2007) (setting forth the principles of appellate mootness). Therefore, we dismiss Amr’s appeal as moot. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
DISMISSED.
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Darrin King appeals the district court’s order granting summary judgment for the Appellee on King’s claim of disability discrimination. On appeal, we confine our review to the issues raised in the Appellant’s brief. See 4th Cir. Rule 34(b). King’s brief fails to challenge the district court’s dispositive conclusions that he failed to demonstrate a prima facie case of discrimination and that the Appellee had legitimate, non-discriminatory reasons for not hiring King. Accordingly, we affirm the district court’s order and deny King’s mo*859tions to appoint counsel. 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 in the decisional process.
AFFIRMED.
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GEORGE CARAM STEEH, District Judge.
Appellant Tabitha Nshoya Magoti was indicted on April 24, 2008, on one count of making or using a false writing or document, in violation of 18 U.S.C. § 1001(a)(3), and one count of willfully making a materially false, fictitious or fraudulent statement to the Government, in violation of 18 U.S.C. § 1001(a)(2). The charges arose from Magoti’s backdating of an 1-9 Employment Eligibility Verification Form used to verify her eligibility to work in the United States and her false statements made to government officials when turning over that form. During an August 4, 2008 final pretrial conference, the district court determined that if Magoti testified, her seven prior felony convictions for uttering and publishing forged instruments would be admissible as impeachment evidence under Fed.R.Evid. 609(a)(2) because those offenses required proof of making false statements. Magoti did not testify on her own behalf at trial, she says, because of the judge’s conclusion that her prior convictions would be admissible if she did. At the beginning of trial on August 12, 2008, the district court ruled that four fraudulent 1-9 Forms of Magoti’s employees that Magoti submitted to officials along with her own 1-9 Form were admissible to prove Magoti’s knowledge and intent in deciding whether she willfully backdated her own Form. Magoti was convicted by a jury on both counts on August 13, 2008. Magoti appeals her convictions on the grounds that: (1) there was insufficient evidence to sustain her convictions; (2) the district court abused its discretion in admitting other 1-9 Forms at trial in violation of Federal Rule of Evidence 404(b); and (3) the district court abused its discre*983tion under Federal Rule of Evidence 609 by stating that it would admit her prior convictions for uttering and publishing forged instruments at trial if she testified. For the reasons set forth below, we affirm.
I. Sufficiency of the Evidence
We review sufficiency-of-the-evidence claims de novo to determine “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” United States v. Tocco, 200 F.3d 401, 424 (6th Cir.2000) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)).
Magoti’s argument that there was insufficient evidence that she willfully made a false statement is without merit. Special Agent George testified at trial that Magoti provided Agents with her 1-9 Form dated January 1, 2002, told them it had been completed in 2002, and explained to the Agents that she did not remember if anyone had helped her complete the 1-9 Form because she had filled it out “so long ago.” George also testified that Magoti later admitted she had not created her 1-9 Form in 2002, but had actually created it after being subpoenaed in 2007. Viewing the Agents’ testimony, Magoti’s 1-9 Form, and the additional 1-9 Forms presented to the jury in a light most favorable to the prosecution, any rational trier of fact could have found that Magoti knowingly, willfully, and falsely represented in both her 1-9 Form and in her oral statements to the Agents that her 1-9 Form was completed on January 1, 2002. See Tocco, 200 F.3d at 424; See United States v. Daughtry, 48 F.3d 829, 831-32 (4th Cir.1995), vacated on other grounds, 516 U.S. 984, 116 S.Ct. 510, 133 L.Ed.2d 419 (1995); See Sixth Circuit Pattern Criminal Jury Instructions, 2005 Revised Edition, § 13.03.
Magoti’s argument that backdating the Form is not a material misrepresentation, is without merit. A statement is material if it “has the natural tendency to influence or is capable of influencing a decision” of the Bureau of Immigration of Customs Enforcement. United States v. Lutz, 154 F.3d 581, 588 (6th Cir.1998). Viewing the evidence presented to the jury in a light most favorable to the prosecution, a rational trier of fact could have found that Magoti’s backdating of her 1-9 Form and misrepresentations to Agents that she completed the 1-9 Form on January 1, 2002 had a natural tendency to influence ICE’s investigation. See Tocco, 200 F.3d at 424; Lutz, 154 F.3d at 588.
Magoti argues that Agent George’s testimony about her oral statements was too contradictory and insufficient to sustain the conviction. Viewing the testimony in a light most favorable to the prosecution, any rational trier of fact could have believed both the testimony of Agent George and the testimony of Agent Burgess, who testified he could not recall whether Magoti told them she had filled out her 1-9 Form in 2002. See Tocco, 200 F.3d at 424. The Agents’ credibility was properly a decision for the jury. See United States v. Wright, 16 F.3d 1429, 1440 (6th Cir.1994).
Magoti argues that her own 1-9 Form was rendered a “legal nullity” because she verified the form as both employer and employee. She argues, without supporting authority, that her completion of the 1-9 Form for herself could not support a finding of criminal liability under 18 U.S.C. § 1001. The argument is baseless. Magoti was convicted of making a false writing and a false statement to ICE Agents. The fact that Magoti was acting as both employer and employee does not nullify her duty to truthfully represent her work status.
*984II. Admission of 404(b) Evidence
Magoti objects to the admission under Federal Rule of Evidence 404(b) of the four other 1-9 Forms that she completed for her employees. Generally, evidence of other crimes, wrongs, or acts are not admissible to show that a person acted in conformity with those crimes, wrongs, or acts when committing a charged crime. Such evidence “may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” Fed.R.Evid. 404(b). The district court found that the four 1-9 Forms were admissible under Rule 404(b) to prove Magoti’s knowledge and intent with regard to whether she willfully backdated her own 1-9 Form.
In reviewing Rule 404(b) determinations, this Circuit employs
a three-part test, reviewing (1) for clear error the district court’s determination that the ‘other act’ took place; (2) de novo the district court’s legal determination that the evidence was admissible for a proper purpose; and (3) for abuse of discretion the district court’s determination that the probative value of the other acts evidence is not substantially outweighed by its unfairly prejudicial effect.
United States v. Bell, 516 F.3d 432, 440 (6th Cir.2008). An error in the admission of other-acts evidence constitutes “harmless error” if the other record evidence of guilt is overwhelming, eliminating any fair assurance that the conviction was substantially swayed by the error. United States v. Murphy, 241 F.3d 447, 453 (6th Cir.2001).
First, the district court did not clearly err in finding that there was sufficient evidence to conclude that Magoti had completed and submitted the four 1-9 Forms for her employees. Magoti’s counsel points to differences between the forms and argues that Magoti may not have completed them. The one difference of significance is that Magoti’s name is misspelled on one of the four 1-9 Forms when it was written with two “t”s. At trial, Magoti did not advance an explanation or evidence of any other person who may have filled out the 1-9 Forms. It is undisputed that Magoti submitted the 1-9 Forms of her employees to the Agents. The district court could find on the whole record that a reasonable jury could conclude Magoti completed or ratified the four other 1-9 Forms and submitted them for review by the Agents. See Bell, 516 F.3d at 441.
Second, the district court found that the four employee 1-9 Forms were probative of Magoti’s knowledge and intent in determining whether she willfully backdated her own 1-9 Form. As an element of the False Writing and False Statement charges, the Government was required to prove beyond a reasonable doubt that Magoti “knowingly and willfully” made false statements to the ICE Agents. United States v. White, 492 F.3d 380, 396 (6th Cir.2007); United States v. Logan, 250 F.3d 350, 359 (6th Cir.2001). Magoti’s defense was that she innocently backdated her 1-9 Form and innocently represented that she had in fact completed the 1-9 Form on January 1, 2002. Under Rule 404(b), evidence of other crimes, wrongs, or acts is admissible to prove “intent” and “absence of mistake.” Fed. R.Evid. 404(b). The district court correctly found that the four 1-9 Forms were probative of the material issue of intent; that is, whether Magoti “knowingly and willfully,” or innocently, made the false writing and false statement. See Bell, 516 F.3d at 441.
Third, the district court did not abuse its discretion in finding that the probative value of the four employee 1-9 *985Forms outweighed the risk of unfair prejudice. See Bell, 516 F.3d at 440. Alternatively, any error was harmless considering the other overwhelming record evidence of Magoti’s guilt. See Murphy, 241 F.3d at 453. Agents testified that Magoti admitted completing her 1-9 Form in 2007 after she had previously represented that the I-9 Form was completed it in 2002. The form was admittedly backdated to January 1, 2002.
III. Admissibility of Prior Convictions
Federal Rule of Evidence 609(a)(2) states that evidence “that any witness has been convicted of a crime shall be admitted, regardless of the punishment, if it readily can be determined that establishing the elements of the crime required proof or admission of an act of dishonesty or false statement by the witness.” As with any other witness, defendants in a criminal trial are subject to impeachment if they take the stand in their own defense. United States v. Walker, 313 F.2d 236, 238 (6th Cir.1963). A trial court’s decision whether to admit evidence of prior convictions under Federal Rule of Evidence 609 is reviewed for an abuse of discretion. United States v. Gaitan-Acevedo, 148 F.3d 577, 591 (6th Cir.1998).
The district court did not abuse its discretion in concluding that Magoti’s prior Michigan convictions for uttering and publishing were admissible under Rule 609. Magoti was convicted of seven violations of M.C.L. § 750.249. The statute prohibits “utter[ing] and publish[ing] as true, a false, forged, altered, or counterfeit record, deed, instrument or other writing listed in section 248 knowing it to be false, altered, forged, or counterfeit, with intent to injure of defraud.” This Court has previously held that a conviction for uttering and publishing altered money orders is a crime “involving dishonesty.” United States v. Cox, 159 Fed.Appx. 654, 657 (6th Cir.2005). Further, a conviction under M.C.L. § 750.249 for uttering and publishing requires proof that the person knowingly uttered and published a “false” writing representing it to be “true.” Accordingly, Magoti’s convictions required proof of “an act of dishonesty or false statement” as contemplated by Rule 609(a)(2). The district court did not abuse its discretion in ruling that Magoti’s prior uttering and publishing convictions were admissible under Rule 609(a)(2). See Gaitan-Acevedo, 148 F.3d at 591.
IV.
For these reasons, we affirm the judgment of the district court.
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ORDER
Sergio Navarrete pleaded guilty to conspiring to possess more than five kilograms of cocaine with intent to distribute, see 21 U.S.C. §§ 846, 841(a)(1), and the district court sentenced him to 151 months’ imprisonment. In his plea agreement he promised to forgo any appeal of his conviction or sentence. Navarrete filed a notice of appeal, but his appointed lawyers move to withdraw because they 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). Navar-rete did not respond to counsel’s submission. See Cir. R. 51(b). Our review is limited to the potential issues identified in counsel’s facially adequate brief. United States v. Cano-Rodriguez, 552 F.3d 637, 638 (7th Cir.2009); United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir.2002).
Counsel begin by telling us that Navarrete does not wish to challenge his guilty plea. Counsel thus properly refrain from discussing the adequacy of the plea colloquy or the voluntariness of the plea. See United States v. Knox, 287 F.3d 667, 671-72 (7th Cir.2002).
Counsel next consider whether Navarrete has any other basis on which to challenge his sentence. But the appeal waiver forecloses any argument challenging his sentence except a claim that the district court relied on a constitutionally impermissible factor at sentencing or that the sentence exceeds the statutory maximum. See United States v. Lockwood, 416 F.3d 604, 608 (7th Cir.2005); United States v. Bownes, 405 F.3d 634, 637 (7th Cir. 2005). Neither of these issues applies here. Navarrete’s appeal waiver stands with his unchallenged guilty plea, United States v. Cole, 569 F.3d 774, 776 (7th Cir.2009); United States v. Wilson, 481 F.3d 475, 483 (7th Cir.2007), and any challenge to his sentence would be frivolous.
Accordingly, we GRANT counsel’s motion to withdraw and DISMISS the appeal.
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ORDER
Victor Powell pleaded guilty to transporting a minor across state lines for the purpose of prostitution. See 18 U.S.C. § 2423(a). He was represented by counsel at the time of his guilty plea but appeared pro se at sentencing. Now, with the assistance of the federal public defender, Mr. Powell argues that his waiver of counsel at sentencing was involuntary and that he therefore must be resentenced. For the reasons set forth in this order, we affirm the judgment of the district court.
I
BACKGROUND
Law-enforcement officials began investigating Mr. Powell in 2004 after they received a phone call from an 18-year-old woman who said she was involved in an abusive situation. Investigators learned that Mr. Powell had abducted the caller and forced her into prostitution and that he had done the same with three other minor females.
On May 8, 2007, one month before the date scheduled for sentencing, Mr. Powell’s retained attorney moved to withdraw, citing irreconcilable differences. The district court permitted counsel to withdraw and postponed the sentencing hearing. Over the next year, the court conducted ten status hearings concerning Mr. Powell’s representation. During that time, Mr. Powell turned away two different attorneys willing to represent him by appointment, and he tried to dispense with a third attorney appointed by the court to *20appear as standby counsel. Mr. Powell refused to accept any attorney who was not willing to represent him in his “private capacity,” which he explained to mean “[a]s a third party intervenor and secured party creditor in this matter in title over the property.” R.213 at 8. Mr. Powell elaborated that he was not the person charged in the indictment: “I am Victor Powell,” he told the court at one point, “but that name on the charging instrument in all capital letters is a corporate fiction in law or a deceased person.” Id. In support of his position, Mr. Powell flooded the record with irrelevant documents, including what he characterized as a Uniform Commercial Code financing statement, a hold-harmless indemnity agreement and a common-law copyright.
After the district court had permitted Mr. Powell’s retained attorney to withdraw, the court conducted the first of the ten status hearings on June 19, 2007. At that hearing, the court said that it would appoint a private attorney from the list of attorneys who were qualified and willing to accept appointments under the Criminal Justice Act. At the second status hearing on July 10, the court learned that Mr. Powell had refused to sign the requisite financial affidavit because, he claimed, the attorney would not agree to represent him in his “private capacity.” Id. The district court explained to Mr. Powell that he was a criminal defendant and that his theories about corporate status had no relevance to the proceedings.
Although Mr. Powell was given additional time to reconsider his position, he refused to appear at the next status hearing on August 16, 2007. When Mr. Powell finally appeared on August 28, he told the court that he did not “wish to proceed pro se,” and did not “have any license to represent any corporate fiction in this or any courtroom.” R.215 at 4. After the court warned Mr. Powell that his position was not valid and that his case would proceed to sentencing, Mr. Powell changed course and asked to be referred to a public defender. Mr. Powell initially refused, however, to meet with the assistant public defender. When they finally did speak at the fifth status hearing on October 5, 2007, Mr. Powell was uncooperative: the district court therefore released the assistant public defender from any further obligation to represent Mr. Powell. Additionally, in view of Mr. Powell’s behavior, the court ordered that he be evaluated to assure that he was competent to be sentenced.
At the sixth status hearing on October 19, 2007, just two weeks after rejecting appointment of the federal public defender, Mr. Powell announced again that he wished to be represented at sentencing but only in his “private capacity.” R.217 at 6. The district court once more reminded Mr. Powell that he was a criminal defendant and urged him to accept an attorney: “I think it would be a wise decision for you to accept a lawyer to represent you. As you point out ... you’re not trained to represent anybody, so I think you would be doing yourself a disservice if you don’t have a lawyer representing you.” Id. at 6-7. When Mr. Powell replied that he was not a criminal defendant but rather a corporation, the court admonished him further: “You’re an individual. I don’t care what you tell me about being an LLC. You’re not an LLC. You’re not a corporation. You’re going to be sentenced here. Now, I’m giving you the opportunity to have a lawyer represent you, and I think you should accept that.” Id. at 8. Mr. Powell answered that he wanted an attorney who would represent him in his private capacity. The court then set a date for the sentencing hearing, although that date was later pushed back because the competency evaluation had not been completed. At the next status hearing on October 26, 2007, the district court appointed standby counsel for Mr. Powell in *21the hope that it would speed up the competency evaluation.
During the next three months, Mr. Powell was before the district court three more times, and each time he made a point to announce that the standby counsel was not his attorney. At the last of these appearances, the tenth status hearing on April 8, 2008, the court reviewed the results of the competency evaluation and found that Mr. Powell was competent to proceed.
Mr. Powell was finally sentenced six months later, on June 5, 2008. At that proceeding, Mr. Powell, who appeared pro se, made no mention of corporate fictions or secured parties and instead focused on the merits of his case. Except for a few instances when his standby counsel interjected, Mr. Powell was in control of the conduct of his case. He presented a range of legal and factual objections to the application of the United States Sentencing Guidelines, including a challenge to the court’s use of relevant conduct in determining his offense level. He conducted a detailed cross examination of a government agent, during which he sought to discredit the witness’s testimony and to cast doubt on a number of the Government’s allegations about his trafficking operation. He also convinced the court to allow him, by way of questioning from the prosecutor and his standby counsel, to examine one of the victims who was present in the courtroom.
At the conclusion of the proceeding, the district court sentenced Mr. Powell to the statutory maximum term of thirty years’ imprisonment. The court also imposed a five-year term of supervised release.
II
DISCUSSION
A.
Mr. Powell argues that he did not knowingly and intelligently waive his right to counsel at sentencing because, he insists, the district court failed to explain adequately the dangers of self-representation. As a remedy, he seeks to be resentenced.
The Sixth Amendment to the United States Constitution guarantees a criminal defendant a right to counsel at sentencing. United States v. Johnson, 534 F.3d 690, 693 (7th Cir.2008); United States v. Irorere, 228 F.3d 816, 826 (7th Cir.2000). A defendant does not, however, have a right to appointed counsel of his choice. United States v. Alden, 527 F.3d 653, 660 (7th Cir.2008). A defendant may waive the right to counsel, whether through words or conduct, provided he does so knowingly and intelligently. Faretta v. California, 422 U.S. 806, 835, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975); Alden, 527 F.3d at 660. In determining if a waiver was knowing and intelligent, we evaluate four factors: (1) whether the district court conducted a formal hearing at which it could admonish the defendant about the risks of proceeding pro se, (2) whether the record discloses other evidence establishing that the defendant understood the risks of self-representation, (3) the defendant’s background and experience and (4) the context of the defendant’s waiver. United States v. Avery, 208 F.3d 597, 601 (7th Cir.2000); United States v. Bell, 901 F.2d 574, 577-79 (7th Cir.1990). This court reviews for an abuse of discretion a district court’s determination that a waiver was knowing and intelligent. United States v. Todd, 424 F.3d 525, 530 (7th Cir.2005); Avery, 208 F.3d at 601.
B.
Because the background context provides the strongest evidence supporting a finding of waiver, we begin our analysis with the fourth factor. At sentencing, the *22district court clearly articulated its determination that Mr. Powell was attempting to game the proceedings by bombarding the court with irrelevant filings and setting unreasonable conditions on appointed attorneys. Indeed, appellate counsel acknowledges that Mr. Powell’s insistence on being treated as a corporation likely was grounded in strategy. Counsel’s concession is consonant with the district court’s finding that Mr. Powell understood what he was up to, and we have held that evidence of strategic delay weighs in favor of finding a waiver to be knowing and intelligent. United States v. Egwaoje, 335 F.3d 579, 586 (7th Cir.2003); United States v. Sandles, 23 F.3d 1121, 1129 (7th Cir.1994).
The remaining factors solidify the district court’s finding of a knowing and intelligent waiver. As for the first factor, district courts are not required to give a “ ‘hypothetical lecture on criminal law.’ ” Todd, 424 F.3d at 531 (quoting United States v. Moya-Gomez, 860 F.2d 706, 732 (7th Cir.1988)). The district court must find, however, that the defendant wants to proceed pro se, and also that he appreciates the difficulties he will encounter in representing himself. Johnson, 534 F.3d at 694; Todd, 424 F.3d at 531.
Mr. Powell argues that the district court’s admonishments at its status hearing on October 19, 2007, fell short because the court failed to address explicitly the range of procedural difficulties he would face at sentencing. Mr. Powell cites no authority for the proposition that a district court must recite a litany of potential risks of self-representation. Indeed, we have rejected the notion that any checklist of warnings is mandated. United States v. Hill, 252 F.3d 919, 928 (7th Cir.2001); see Faretta, 422 U.S. at 835, 95 S.Ct. 2525. It is enough, rather, for the district court to “ensure that the defendant knows his rights and avoids hasty decisions.” Hill, 252 F.3d at 928. That obligation is met if the court alerts the defendant to the “difficulties” of self-representation and highlights some of the complexities of trial procedure. Smith v. Grams, 565 F.3d 1037, 1046 (7th Cir.2009); United States v. Oreye, 263 F.3d 669, 672 (7th Cir.2001); Hill, 252 F.3d at 928-29. The district court did that here by telling Mr. Powell that he lacked the proper training to appear alone and warning him that he would be doing himself a “disservice” if he did not accept an attorney. R.217 at 6-8. Mr. Powell had six months to act on this advice, and the court supplemented it with regular reminders to Mr. Powell that he was a criminal defendant facing sentencing.
The second factor likewise supports the district court’s finding of a knowing and intelligent waiver. Mr. Powell repeatedly acknowledged his own limitations when he told the court that he did not wish to represent himself. That recognition weighs in favor of the finding that Mr. Powell knew the risk of going alone. See United States v. England, 507 F.3d 581, 587 (7th Cir.2007); Sandles, 23 F.3d at 1128. Mr. Powell argues that his approach at sentencing was ill-conceived and likely counterproductive; instead of trying to prove his innocence, he argues, he should have been pleading for a lighter sentence. Mr. Powell’s argument misconceives the depth of the district court’s inquiry: “[T]he competence that is required of a defendant seeking to waive his right to counsel is the competence to waive the right, not the competence to represent himself.” Godinez v. Moran, 509 U.S. 389, 399, 113 S.Ct. 2680, 125 L.Ed.2d 321 (1993); see also United States v. Berry, 565 F.3d 385, 390 (7th Cir.2009). Even so, Mr. Powell’s performance at sentencing demonstrated normal intelligence and an ability to make rational, if misguided, decisions. He attempted to poke holes in the *23testimony of the Government’s witness, and, through a series of pointed objections, demonstrated an understanding of the sentencing guidelines and the rules of evidence. Similarly, Mr. Powell argues that his nonsensical emphasis on “private capacity” suggests that his waiver was unintelligent. The district court properly concluded that this was a tactic, and that, if anything, it supports a finding of waiver.
As to the third factoi*, Mr. Powell’s background and experience also support the district court’s decision. In this context we consider the defendant’s educational history as well as his previous encounters with the legal system. England, 507 F.3d at 587-88; Sandles, 23 F.3d at 1128-29. Mr. Powell received an Adult Education Certificate and completed some college course work. He has a number of prior convictions, which should have alerted him to the gravity of a criminal prosecution. Moreover, the district court, based on the opinion of a psychiatrist, determined that he was competent to proceed with sentencing. All of these factors point to the conclusion that he understood the consequences of his waiver. See England, 507 F.3d at 587-88; Egwaoje, 335 F.3d at 585-86. In light of the totality of the circumstances surrounding Mr. Powell’s waiver, the district court did not abuse its discretion when it concluded that Mr. Powell waived his right to counsel at sentencing.
Conclusion
For the foregoing reasons, the judgment of the district court is affirmed.
AFFIRMED.
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ORDER
Jason Foster pleaded guilty to knowingly and intentionally distributing more than fifty grams of crack. See 21 U.S.C. § 841(a)(1). He was sentenced to 130 months in prison, well below the guidelines range of 262 to 327 if the district court had applied the career-offender adjustment. Foster appeals, but his appointed counsel has moved to withdraw because he cannot *29identify any nonfrivolous argument to pursue on appeal. See Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Foster declined our invitation to comment on his counsel’s submission, see Cir. R. 51(b), and thus we confine our review to the potential issues identified in counsel’s facially adequate brief. See United States v. Schuh, 289 F.3d 968, 974 (7th Cir.2002).
Counsel begins by telling us that Foster does not wish to withdraw his plea and thus properly refrains from discussing possible challenges to the voluntary nature of the plea or the adequacy of the plea colloquy. See United States v. Knox, 287 F.3d 667, 670-72 (7th Cir.2002).
Regarding Foster’s sentence, counsel first considers whether Foster could argue that the district court should have used the 2006 version of the sentencing guidelines rather than the 2007 version. Under the former Foster would not qualify as a career offender, see U.S.S.G. § 4B1.1 (2006), but under the latter he does, see U.S.S.G. § 4B1.1 (2007). Counsel correctly concludes that this argument would be frivolous. The district court was required to use the 2007 version because that was in effect at the time of Foster’s sentencing. See 18 U.S.C. § 3553(a)(4)(A)(ii); United States v. Demaree, 459 F.3d 791 (7th Cir. 2006). In any event, the district court did not apply the career-offender adjustment. The court acceded to the wishes of both Foster and the government not to apply the adjustment because Foster’s qualifying drug convictions — both based on the same series of events but prosecuted in different jurisdictions — were not the type intended to trigger the career-offender penalties under the guidelines.
Counsel also considers whether Foster could argue that the district court overlooked arguments he had pressed in his sentencing memorandum and during his sentencing hearing. Counsel points out that the court did not explicitly address Foster’s argument for being sentenced at the 120-month statutory minimum — an argument based on Kimbrough v. United States, 552 U.S. 85, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007), concerning the district court’s discretion to sentence below the guidelines range if it disagrees with the sentencing disparity between crack and powder cocaine. But a sentencing court is not required to address every argument put before it; it need only consider the factors listed in § 3553(a) and address substantial arguments made by the defendant. See United States v. Acosta, 474 F.3d 999, 1003 (7th Cir.2007); United States v. Cunningham, 429 F.3d 673, 678-79 (7th Cir.2005). Foster’s Kimbrough challenge would be frivolous. His sentence was less than half of that under the guidelines, and we have never declared a below-range sentence to be unreasonable. See United States v. Wallace, 531 F.3d 504, 507 (7th Cir.2008). As for Foster’s arguments at sentencing regarding his rehabilitation efforts and his health concerns, the record reflects that the court did consider these as mitigating factors but determined they were outweighed by other concerns warranting a sentence above 120 months.
Counsel next considers whether Foster could raise an argument of sentence manipulation because the government waited to arrest Foster until after he made a second sale of crack to a confidential informant. Counsel correctly notes, however, that this circuit does not recognize the sentencing manipulation doctrine. United States v. Turner, 569 F.3d 637, 641 (7th Cir.2009); United States v. White, 519 F.3d 342, 346 (7th Cir.2008).
Finally, counsel asks whether Foster could make a claim of ineffective assistance of counsel. Counsel correctly notes, however, that Foster should save any such *30claim for collateral review where a more complete record can be made. See Massaro v. United States, 538 U.S. 500, 504-05, 123 S.Ct. 1690, 155 L.Ed.2d 714 (2003); United States v. Harris, 394 F.3d 543, 557-58 (7th Cir.2005).
We therefore GRANT the motion to withdraw and DISMISS Foster’s appeal.
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ORDER
Plaintiff Earl Rome, acting as Special Administrator for the Estate of Christine Rome, his deceased wife, appeals the district court’s grant of summary judgment on his 42 U.S.C. § 1983 claim against Richard A. Meyers in his official capacity as Sheriff of Winnebago County, Illinois. The complaint alleges that Meyers failed to provide adequate training to the correctional officers at the Winnebago County Jail and that this failure prevented Christine Rome (“Rome”) from receiving proper medical care during her period of incarceration, which in turn caused Rome’s wrongful death. Finding no error below, we affirm.
I. Background
We begin with a brief review of the tragic circumstances that gave rise to this litigation. On July 5, 2003, Rockford Po*36lice arrived at the residence of Christine and Earl Rome in response to a report that Rome was behaving in a disorderly manner. The police observed Rome outside her home — she was walking around naked, yelling, and talking to herself. When Rome was informed that she was to be arrested for disorderly conduct, she began yelling at the officers and assumed a “fighting stance.”
Rome’s combative behavior continued as she was processed through the Winnebago County Jail. Rome refused to sign any paperwork or answer any questions about her medical history. Although Rome was placed in a special cellblock for inmates under observation and continued to act in a bizarre and unruly manner, she did not receive any medical care for six days. On July 11 nurses from Health Professionals, Ltd., the independent medical services provider hired by the Winnebago County Jail to handle the medical treatment of its inmates, began administering prescription medicine to Rome. This treatment continued for the next two days, although it was evidently hindered by a variety of factors, including Rome’s refusal to take the medication and an inadequate supply of some of the prescribed medicines.
Dan Feigel, a court-appointed psychologist, evaluated Rome on July 11. Feigel noted that Rome would not wear clothes, refused to cooperate with correctional officers, and resisted taking her medications. Feigel also indicated that Rome was not in contact with reality, was responding to auditory hallucinations, and would continue to yell and scream throughout most of the day.
Rome’s unsound mental condition was also evidenced by her living conditions. On July 14 correctional officers observed that Rome had food all over her body and that her cell reeked of urine, feces, and old food. Rome was forcibly transported to the shower room where she was left to sit under the streaming water for 15 minutes while her cell was cleaned.
It was not until July 17 that Rome finally came under the care of a physician on the medical staff of the Winnebago County Jail. As a result of this examination, Rome was referred to the emergency department at Swedish American Hospital in Rockford for further observation of her hydration levels, mental illness, and left knee. Rome remained at the hospital from July 17 until July 23, at which time she experienced renal failure and died. This litigation then ensued.
II. Discussion
We review the district court’s grant of summary judgment de novo, construing all facts and reasonable inferences in favor of Earl Rome, the nonmoving party. Clancy v. Geithner, 559 F.3d 595, 599 (7th Cir.2009). As the district court correctly observed, the claims against Meyers, acting in his official capacity as Sheriff, are treated as claims against Winnebago County itself. Grieveson v. Anderson, 538 F.3d 763, 771 (7th Cir.2008). Governmental entities cannot be held liable for the unconstitutional acts of their employees unless those acts were carried out pursuant to an official custom or policy. Id. In order to survive summary judgment on a § 1983 official-capacity claim, the plaintiff must present evidence demonstrating the existence of an official custom or policy and that the custom or policy was the cause of the alleged constitutional violation. Id.
The Supreme Court has stated that under limited circumstances, a municipality’s failure to train may amount to an official custom or policy that can serve as the basis for liability under § 1983. City of Canton v. Harris, 489 U.S. 378, 387, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989). Establishing municipal liability on the failure *37to train requires proof of “deliberate indifference” to the rights of persons likely to come in contact with the municipality’s employees. Id. at 388, 109 S.Ct. 1197. We have held that such proof can take the form of either “(1) failure to provide adequate training in light of foreseeable consequences; or (2) failure to act in response to repeated complaints of constitutional violations by its officers.” Sornberger v. City of Knoxville, 434 F.3d 1006, 1029-30 (7th Cir.2006).
The estate was unable to satisfy either method of proof articulated in Sornberger. With respect to the first, the district court correctly concluded that the estate failed to present sufficient evidence that either (a) the correctional officers at Winnebago County Jail received inadequate training in how to respond to medical situations, or (b) it was foreseeable that an inmate suffering from considerable mental illness could face imminent death due to some other physical ailment. As the estate concedes, Meyers did have policies in place instructing his officers how to identify and care for inmates with medical issues. Furthermore, correctional officers were required to attend training sessions that included instruction on how to deal with inmates with mental-health issues. Clearly the Winnebago County Jail could have done a much better job handling Rome’s condition. But the estate fails to identify any meaningful systemic problem with the way in which these correctional officers are trained.
The estate fares no better with Somber-ger’s second method of proof. Indeed, the estate does not identify any other alleged constitutional violations that the correctional officers of the Winnebago County Jail have committed. Accordingly, the district court properly entered summary judgment in favor of Meyers.
AFFIRMED.
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ORDER
In this employment discrimination case, Brian Lampley, an African American, sued *43his former employer, Pollution Control Industries of America (“Pollution Control”), for race discrimination. See Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. Lampley, however, failed to respond to Pollution Control’s summary judgment motion in violation of N.D. Ind. L.R. 56.1(a), and so the district court deemed admitted Pollution Control’s version of the facts. The court went on to grant summary judgment for Pollution Control, determining that Lampley failed to raise any genuine fact issue supporting a prima facie case of race discrimination. Lampley appeals, and we affirm.
Because Lampley did not oppose the motion for summary judgment, we, like the district court, accept the facts as presented by Pollution Control. See Cracco v. Vitran Express, Inc., 559 F.3d 625, 632 (7th Cir.2009). Lampley began working for Pollution Control as an at-will employee in 2002. In 2006, after an employee reported that Lampley had returned from his lunch break smelling of alcohol, two supervisors escorted Lampley to a hospital for drug and alcohol tests. While waiting at the hospital, Lampley told his supervisor, “you will pay for this one.” When his supervisor asked if he intended the comment as a threat, Lampley acknowledged that he did. Pollution Control suspended Lampley pending an investigation into allegations that he had violated the workplace violence provisions of the Employee Handbook by threatening a supervisor. After the threat was confirmed by a hospital nurse who had been sitting nearby, Pollution Control closed the investigation and fired Lampley.
Lampley brought this discrimination action under Title VII and 42 U.S.C. § 1981a, alleging that Pollution Control used a harsher hand with him than with white employees who had engaged in similar conduct. When Lampley failed to respond to Pollution Control’s motion for summary judgment, Magistrate Judge Paul Cherry, proceeding with the parties’ consent, adopted Pollution Control’s version of the facts, concluded that Lampley failed to establish a prima facie case of race discrimination under either the direct or indirect, burden-shifting method, and granted the motion. With regard specifically to the indirect method, the court found that Lampley failed to establish that he was treated less favorably than similarly situated white employees. The court concluded that the three individuals identified by Lampley — -Art Cadena, Ronald Artist, and James Heiser — were not comparable because they were not accused of violating the company’s workplace violence policy.
On appeal Lampley argues that the district court erred in granting summary judgment because the evidence supports a prima facie case of discrimination — even on Pollution Control’s uncontested version of the record. Specifically Lampley challenges the district court’s determination that Pollution Control did not provide favorable treatment to similarly situated white employees.
Under the indirect method of proof, Lampley must prove a prima facie case by showing, among other things, that a comparable employee outside his protected class received better treatment. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); McGowan v. Deere & Co., 581 F.3d 575, 579 (7th Cir.2009); Adams v. Wal-Mart Stores, Inc., 324 F.3d 935, 939 (7th Cir.2003). In the context of a disciplinary action, we normally rely on a showing that the employees engaged in similar conduct, were subject to the same performance standards, and dealt with the same supervisor. Peirick v. Indiana Univ.-Purdue Univ. Indianapolis Athletics Dept., 510 *44F.3d 681, 688 (7th Cir.2007); Radue v. Kimberly-Clark Corp., 219 F.3d 612, 617-18 (7th Cir.2000).
Lampley renews his argument that his three former white colleagues — Art Cade-na, Ron Artist, and James Heiser — received more lenient treatment from Pollution Control. First, Lampley contends that Pollution Control let Cadena off with just a warning after a nurse who was administering his physical examination complained that she felt intimidated by some of his comments. But the district court properly distinguished Cadena’s conduct, observing that he was addressing a third party, not a supervisor, and that he was reprimanded not for making threats but rather for making “rude” remarks. See Adams, 324 F.3d at 940 (employees not similarly situated because eating a coworker’s pudding was not comparable to stealing employer’s money).
For similar reasons, the district court found that Ron Artist, Lampley’s second comparator, was also not similarly situated. Artist received a three-day suspension after an alcohol-related incident at work. But Artist’s misconduct ended with alcohol abuse, whereas Lampley’s escalated to a threat against his supervisor — the immediate cause of his termination. In the absence of any evidence that Artist was disciplined under the workplace violence rules, the district court correctly concluded that the two instances of misconduct are not sufficiently comparable. See id.; Peele v. Country Mut. Ins. Co., 288 F.3d 319, 330 (7th Cir.2002).
Finally, Lampley contends that Heiser got off with merely a three-day suspension after threatening a supervisor who had asked him to work overtime. But based on Pollution Control’s version of the facts, which the district court accepted as true, Heiser’s comment was merely obscene and not threatening, and the company suspended him on the milder charge of insubordination. The district court was thus correct to conclude that Heiser and Lamp-ley had not engaged in materially similar conduct. See Adams, 324 F.3d at 940; Radue, 219 F.3d at 618-19 (concluding that plaintiffs substantial performance problems precluded a finding that he was similarly situated to comparators).
AFFIRMED.
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ORDER
HK brought a diversity suit for breach of contract against Eaton. After a trial, the district court set aside the jury verdict in favor of HK and granted summary judgment in favor of Eaton on all claims. HK appealed, and, while the appeal was pending, Eaton moved in the district court for sanctions against HK’s counsel for misconduct in litigation. See 28 U.S.C. § 1927. The district court deferred ruling on this motion until this court had resolved HK’s appeal. After we affirmed the district court’s judgment, HK Sys., Inc. v. Eaton Corp., 553 F.3d 1086 (7th Cir.2009), the district court denied Eaton’s motion for § 1927 sanctions, holding that HK’s counsel did not act with subjective or objective bad faith. We now affirm the district court’s denial of the motion for sanctions.
A district court has discretion to impose § 1927 sanctions when an attorney has acted in an “objectively unreasonable manner” by engaging in “serious and studied disregard for the orderly process of justice.” Jolly Group, Ltd. v. Medline Indus., Inc., 435 F.3d 717, 720 (7th Cir.2006) (quoting Pacific Dunlop Holdings, Inc. v. Barosh, 22 F.3d 113, 119 (7th Cir.1994)). But § 1927 is permissive, not mandatory, and the court is not obliged to grant sanctions even if where conduct is unreasonable and vexatious. Corley v. Rosewood Care Ctr., Inc. of Peoria, 388 F.3d 990, 1014 (7th Cir.2004). Eaton contends that the district court abused its discretion by refusing to sanction HK for submitting unfounded allegations and abusing discovery, and by failing to adequately explain its reasoning for declining to impose sanctions. But the district court’s reasons for *46declining to impose sanctions were thoroughly discussed in its order, and under the deferential standard of review for § 1927 sanctions, its discretionary decision to decline sanctions, based on its adequately supported finding of no bad faith, was not an abuse.
AFFIRMED.
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ORDER
While on supervised release for a 1999 fraud conviction, Derrick Mosley tried to extort money from gospel artist DeLeon Richards-Sheffield, the wife of former New York Yankees player Gary Sheffield. *51Mosley’s attempt led both to the revocation of his supervised release and to new federal convictions for using interstate communications to extort money, 18 U.S.C. § 875(d), and wire fraud, id. § 1343. In these consolidated appeals Mosley challenges the new convictions and the term of reimprisonment he received on revocation of his supervised release.
Mosley’s extortion scheme started with a November 2004 e-mail to Riehards-Shef-field. There he asserted that he possessed a video tape of her having sex with singer-songwriter Robert “R.” Kelly. When Mosley did not receive a reply to his email, he phoned the Yankees’ media-relations department; someone there referred him to Rufus Williams, Sheffield’s agent and manager, and Williams in turn contacted the FBI.
Over the next ten days Williams, now cooperating with the FBI, recorded a series of phone conversations and meetings with Mosley, a self-described minister and community activist. Mosley expressed moral outrage about the tape and asserted that he was worried that disclosure could hurt Richards-Sheffield’s reputation. He opined that she desperately needed spiritual counseling, which he (conveniently) could provide — along with the tape — for $20,000. Mosley reminded Williams that anyone else might have sold the tape to a tabloid, and he threatened to “move forward” if a deal was not struck. He was arrested after giving Williams the number of an account to which he wanted the money wired.
At his trial in November 2005, Mosley did not present any evidence. His lawyer argued that Williams had misunderstood Mosley’s intentions, which were only to help Richards-Sheffield. The jury found the government’s story more persuasive and convicted Mosley; he was sentenced in January 2006 to 27 months in prison and five years of supervised release. The district court ordered Mosley to undergo a mental-health evaluation as a special condition of supervision. Meanwhile, the new convictions prompted the government to move to revoke Mosley’s supervised release from his 1999 bank fraud conviction. A different judge of the district court obliged in June 2006 and imposed a sentence of 15 months in prison and two years’ supervised release; the prison term was to run consecutively to the new sentence, and the supervised release was to be concurrent with Mosley’s supervision on the new convictions. Mosley completed the consecutive prison terms in February 2008 and has started his terms of supervised release.
Mosley is acting pro se in these appeals, but in the district court he was represented by appointed counsel. In the first of his four challenges to the new convictions, Mosley argues that the district court erred in denying his lawyer’s two, ex parte requests for authorization to hire a private investigator. See 18 U.S.C. § 3006A(e). The district court had rejected the requests for several reasons: Mosley, it found, was exaggerating the scope of the charges; he was capable of investigating the case without help; and he had failed to furnish adequate proof of his indigence. Mosley then resubmitted essentially the same skeletal request but with financial information and a list of twelve people he wanted interviewed; the court again denied the motion. It commented that Mosley could hire an investigator himself with the $40,000 in currency that he admitted having in his apartment.
Our review is for abuse of discretion. United States v. King, 356 F.3d 774, 778 (7th Cir.2004). Under the Criminal Justice Act, courts may authorize additional services that are “necessary for adequate representation.” 18 U.S.C. § 3006A(e)(1); *52see United States v. Smith, 502 F.3d 680, 686 (7th Cir.2007), cert. denied, 552 U.S. 1206, 128 S.Ct. 1270, 170 L.Ed.2d 105 (2008). An indigent defendant wanting to hire an investigator must first provide a specific statement explaining the need, United States v. Knox, 540 F.3d 708, 718 (7th Cir.2008), cert. denied, — U.S.-, 129 S.Ct. 1525, 173 L.Ed.2d 656 (2009); United States v. Goodwin, 770 F.2d 631, 634 (7th Cir.1985). If he does so, the court must then assess whether an investigator is likely to help the defendant establish a “plausible defense.” See United States v. Winbush, 580 F.3d 503, 509-10 (7th Cir.2009). These requirements ensure that the government is not asked to fund a “fishing expedition.” Knox, 540 F.3d at 719.
The district judge did not abuse his discretion in denying Mosley’s two requests. Mosley never explained how an investigator could help his case other than to relieve counsel of the task of interviewing potential witnesses. All but a few of the twelve people he had identified had no conceivable link to a plausible defense. Among them were the intended extortion victim and her mother, as well as three persons who possessed the video tape pri- or to Mosley’s arrest; Mosley has yet to explain how sending an investigator to interview those persons could have helped him convince the jury that his intentions were misunderstood. This was an uncomplicated case, and Mosley supplied most of the evidence with his e-mail and recorded statements. Under the circumstances, there is no reason to disturb the district court’s ruling.
Mosley’s second argument is that the district court should have suppressed an oral statement that he made immediately after his arrest. When FBI agents arrested Mosley at his apartment, Special Agent Timothy Keese told Mosley that the charges related to a sex video of Richards-Sheffield and asked for consent to look for the tape. Mosley, who had not yet received Miranda warnings, refused to give consent and added that he “already destroyed the tape.” Later at the FBI office Mosley talked to Agent Keese at length, during an interview that was preceded by Miranda warnings and was not challenged at trial.
Mosley argued that his comment to Special Agent Keese was a response to a pre-Miranda, custodial interrogation, but the district court rejected that contention. We agree with that conclusion; a request for consent to search does not constitute interrogation because it is not likely to elicit an incriminating response. See, e.g., United States v. Bustamante, 493 F.3d 879, 892 (7th Cir.2007); United States v. McClellan, 165 F.3d 535, 544 (7th Cir.1999). Since there was no dispute about the underlying facts, there was also no need for an eviden-tiary hearing before the court ruled on his motion. See United States v. Walker, 237 F.3d 845, 850 (7th Cir.2001).
Mosley’s third argument for reversal rests on a statement made by the prosecutor assigned to handle his detention hearing. In arguing that the strength of the government’s case was a factor favoring detention, see 18 U.S.C. § 3142(g)(2), the prosecutor noted that FBI agents were reviewing video tapes seized from Mosley’s home and that one of those tapes appeared to be the video described by Mosley in his discussions with Williams. The tapes mentioned by the prosecutor had surfaced when, three days before the detention hearing, Mosley’s lawyer had notified the prosecutor and Agent Keese that—according to Mosley—the video of Richards-Sheffield and R. Kelly was still in Mosley’s apartment. Counsel relayed Mosley’s offer to surrender the tape if he was released from jail, but agents *53instead obtained a search warrant and seized several tapes from the apartment, including two that appeared to depict women engaging in sexual activity with R. Kelly. At first the agents believed that one of those women was Richards-Sheffield, but later they confirmed that it was not, and no video of her ever was found. But at the detention hearing defense counsel, who days earlier had passed along Mosley’s own representation that Richards-Sheffield was depicted in one of the tapes, did not contradict the prosecutor when she proffered that the tape at the heart of Mosley’s extortion attempt was apparently in the hands of the agents. Six months later, Mosley moved to dismiss the indictment on the ground that the prosecutor had lied about possessing the tape in order to bolster the government’s case for detention. The district court called that contention frivolous and observed that the prosecutor’s statement was qualified and, as far as the record showed, was based on what was then known to her and the agents.
Dismissal of a criminal case is not the remedy for prosecutorial misconduct that does not prejudice the defendant, see United States v. Childs, 447 F.3d 541, 545 (7th Cir.2006), and since Mosley’s complaint concerns only a proffer made at a pretrial detention hearing, the jury’s guilty verdicts would have erased any harm flowing from unwarranted pretrial custody, see Murphy v. Hunt, 455 U.S. 478, 481-82, 102 S.Ct. 1181, 71 L.Ed.2d 353 (1982). We are also puzzled by the premise that the prosecutor could have overstated the strength of the government’s evidence by proffering that a sex tape apparently existed, when the prosecutor’s information originated with Mosley through his lawyer. But all of these are tangential points because, as the district court recognized, Mosley had no factual basis for this serious accusation of misconduct.
In his motion Mosley did not deny that agents had found a number of video tapes in his apartment, nor did he say that he had watched or even inquired about those tapes before accusing the prosecutor of lying. At least two of the tapes the agents were reviewing did depict sexual activity, and at first the agents believed that Richards-Sheffield was in one of those videos. That conclusion squared with what Agent Keese and the prosecutor had been told by defense counsel, and even Mosley had admitted to Williams during a recorded conversation that he, too, initially misidentified a woman with R. Kelly in one of the sex videos as Richards-Sheffield. The most that one can glean from the record is that both the prosecutor and defense counsel thought at the time of the detention hearing that a tape of Richards-Sheffield and R. Kelly was in the government’s possession. Mosley’s later accusation of misconduct was unfounded.
Mosley’s final challenge to his convictions under § 875(d) and § 1343 is even weaker than the others. He argues that Judge Der-Yeghiayan should have granted his pro se motion for recusal, which the court labeled as frivolous but denied because it was not filed by Mosley’s lawyer. That ruling was correct; a defendant who is represented by counsel does not have the right to file his own pro se submissions. United States v. Williams, 495 F.3d 810, 813 (7th Cir.2007); United States v. Gwiazdzinski, 141 F.3d 784, 787 (7th Cir.1998). Moreover, all of Mosley’s arguments for recusal rested on his belief that the judge’s pretrial rulings and courtroom comments showed him to be in cahoots with the government, but Mosley did not allege that anything the court said or did was in response to information derived from an extrajudicial source. Thus, whether Mosley was asserting actual bias, *54see 28 U.S.C. §§ 144, 455(b)(1), or the appearance of bias, see id. § 455(a), his allegations did not present a valid basis for disqualification. See Liteky v. United States, 510 U.S. 540, 553-54, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994) (concluding that the extrajudicial source requirement also applies to § 455(a)).
We thus affirm the judgment in case no. 06-1478, and turn to Mosley’s related appeal, case no. 08-3054. After Mosley was released from prison, his probation officer sought to implement the special condition of supervised release requiring Mosley to submit to a mental-health evaluation. In June 2008, Mosley filed a pro se motion asking the court to stay enforcement of that condition pending the resolution of his direct appeal. Mosley characterized the required evaluation as just more evidence of bias, and when the judge refused to stay its implementation, Mosley filed a notice of appeal. His only contention, however, is that the condition should have been stayed until we decided his direct appeal, and he makes no argument that it was error to order the mental-health evaluation as a special condition of supervised release. The parties do not say whether the evaluation went forward after Mosley’s request for a stay was denied, but our resolution of his direct appeal has rendered moot the question about delaying its enforcement.
Mosley’s remaining appeal, case no. 06-2740, concerns Judge Shadur’s revocation of his supervised release from his 1999 conviction for bank fraud, see 18 U.S.C. § 1344. Mosley had been sentenced to twelve months and one day in prison, along with five years of supervised release. He contends only that the district court overstated his criminal history category — from III to IV — when calculating the advisory guidelines range for reimprisonment. Mosley did not make this argument at the revocation hearing. The government concedes the mistake, which increased the upper end of the advisory range from 14 to 18 months, but argues that Mosley has not established plain error.
When revoking a term of supervised release, the district court looks to U.S.S.G. § 7B1.4(a) in calculating the range for re-imprisonment. That policy statement makes clear that the criminal history category from the original sentencing is to be used again. See id. § 7B1.4(a) cmt. n. 1. Mosley had a criminal history category of III when he was sentenced in 1999, and thus it was error to use a higher category to calculate his range of reimprisonment. Because we are reviewing only for plain error, however, it is Mosley who bears the burden of demonstrating an error that is plain, that affects his substantial rights, and that, if left uncorrected, seriously affects the “fairness, integrity, or public reputation of judicial proceedings.” United States v. Olano, 507 U.S. 725, 732-36, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). The error here is plain, and it arguably affected Mosley’s substantial rights because the transcript of the revocation hearing suggests that Judge Shadur was inclined to impose a term of reimprisonment in the middle of the policy-statement range, which, if correctly calculated, would have been 8 to 14 months.
Nevertheless, this is an error that has no practical consequences for Mosley. Even if we were to remand the case, no change in Judge Shadur’s revocation sentence could provide Mosley with any meaningful relief. Mosley’s term of reimpris-onment cannot be shortened because he has already served his time, and any extra time he arguably spent in prison cannot be credited towards his supervision. United States v. Johnson, 529 U.S. 53, 58-59, 120 S.Ct. 1114, 146 L.Ed.2d 39 (2000). Although Judge Shadur could decide to shorten the two-year term of supervised re*55lease to compensate for the error, Mosley will still be serving the longer, concurrent term of supervised release imposed by Judge Der-Yeghiayan for his new convictions and thus his overall time on supervision will not change. The fourth prong of the plain error test is thus not satisfied— the integrity of the judicial system is not compromised by an error that cannot be remedied, particularly when a remedy would have been available if Mosley had raised a timely objection to the miscalculation in the district court.
The judgments in case nos. 06-1478 and 06-2740 are Affirmed. Case no. 08-3054 is Dismissed.
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ORDER
On October 30, 2009, counsel for Defendant-Appellant Brent Terry filed a Petition for Panel Rehearing which contained Terry’s pro se Petition for Rehearing With Suggestion for Rehearing En Banc, as an *59attachment, and we will consider it as being incorporated by reference.
On September 17, 2009, 582 F.3d 686, this panel affirmed Terry’s convictions. One of Terry’s arguments on appeal was that a fatal variance existed because the evidence was insufficient to prove that he participated in any part of the charged conspiracies other than the Townsend ripoff at 87th and Michigan. We held that the evidence was sufficient to allow a reasonable jury to find him guilty of the conspiracies with which he was charged. In addressing the substantial evidence that supported this conclusion, the opinion discussed and quoted an October 7, 2004, recorded conversation between Broderick Jones and Terry in which Jones said, “you good.... I’m thinking like damn, that man got a demo,” to which Terry responded, “Which, which one you talking about?” We concluded that Terry’s question implied that there were several “demos” and thus supported the inference that Terry participated in more than one ripoff. This conclusion rested on the view that “demo” meant criminal activity. However, in discussing that October 7th conversation, the opinion stated parenthetically at page 20 that “(Jones testified that ‘demo’ meant criminal activity.)” Terry and his counsel in the petitions for rehearing correctly note that Jones did not testify at trial.
Terry seeks rehearing by the panel, contending that this error may have affected the analysis of the sufficiency of the evidence as related to his variance claim. Though the opinion incorrectly attributed this explanation for the term “demo” to Jones, the record nonetheless readily supports a reasonable inference that “demo” as used in the context of this recorded conversation meant “criminal activity.” This factual error did not affect this court’s conclusion that there was sufficient evidence to establish that Terry participated in the conspiracies alleged in the indictment and that his participation went further than the Townsend ripoff. The opinion discusses the evidence, including other recorded conversations between Terry and Jones, telephone records reflecting phone calls between Terry and Jones the day of the July 21 attempted ripoff, and Terry’s participation in the Townsend ripoff with Flagg, which supports Terry’s conspiracy convictions. Therefore, the opinion issued on September 17, 2009, is now amended as follows:
The parenthetical at slip op. 20, line 18 is corrected to read (The record supports a reasonable inference that “demo” as used in this context meant criminal activity.)
Terry’s incorporated pro se Petition for Rehearing With Suggestion for Rehearing En Banc (which, as noted, was attached to his counsel’s Petition for Panel Rehearing), adds nothing to counsel’s petition that would warrant panel rehearing. Accordingly, Terry’s Petition for Panel Rehearing submitted by counsel is denied.
There is some confusion regarding Terry’s intention with respect to his pro se Petition for Rehearing With Suggestion for Rehearing En Banc. Apparently, Terry sent that petition to his counsel, but there is no indication that Terry sent the petition to or filed it with the court. However, his counsel may have believed that it was filed, based on their statement that counsel’s Petition for Rehearing “supplements” Terry’s pro se petition on one limited issue (presumably the “demo” matter) but that it does not “supersede” the pro se petition on any other ground. The point of mentioning this is that in addition to seeking panel rehearing, the pro se petition also suggests rehearing en bane, whereas counsel’s petition did not.
This raises the question of whether Terry’s pro se petition should be accepted and *60filed by the Clerk. It was received by Terry’s counsel prior to the extended deadline for filing a petition for rehearing, and perhaps Terry thought by sending it to his counsel that it would be filed with the court. According to an affidavit attached to a motion to extend the time for filing a petition for rehearing, Terry’s counsel had notified him that they did not intend to file a petition for rehearing on his behalf. The affidavit further notes that counsel had advised Terry that he had the option of filing a pro se petition for rehearing. And, in fact, the pro se petition, or at least a copy of it, was received by the Clerk before the expiration of the time for filing a petition for rehearing because it was attached as an exhibit to counsel’s timely Petition for Panel Rehearing. To eliminate any confusion about this, we direct the Clerk to accept and file the copy of Terry’s pro se Petition for Rehearing With Suggestion for Rehearing En Banc attached to his counsel’s Petition for Panel Rehearing. We deem the pro se petition to be timely. To the extent that the pro se petition seeks panel rehearing, it has already been denied through this order. It will be further considered only insofar as it suggests rehearing en banc and the Clerk is directed to distribute copies of the pro se petition to the members of the court. The time for consideration of the suggestion for rehearing en banc under the Operating Procedures of the court will begin on the date of distribution.
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PER CURIAM.
Inmate Rickey Brooks appeals the district court’s1 pre-service dismissal of his 42 U.S.C. § 1983 complaint. After careful review, see Cooper v. Schriro, 189 F.3d 781, 783 (8th Cir.1999) (per curiam) (standard of review), we affirm. See 8th Cir. R. 47B.
. The Honorable J. Leon Holmes, Chief Judge, United States District Court for the Eastern District of Arkansas, adopting the report and recommendation of The Honorable Henry L. Jones, Jr., United States Magistrate Judge for the Eastern District of Arkansas.
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PER CURIAM.
Tony Muhammad appeals the district court’s1 denial of relief under 18 U.S.C. § 3582(c)(2) based on Amendment 706 of the Sentencing Guidelines. Muhammad was indicted in two separate cases for conspiring to distribute cocaine base, but he entered a plea agreement covering both indictments and was sentenced to concurrent 228-month prison terms. The district court appointed counsel to represent Muhammad in bringing a section 3582(c)(2) motion, and denied a reduction. Muhammad’s filings were docketed in both criminal cases, and were denied by the district court in both cases. His notices of appeal are docketed as two consolidated appeals. Because Muhammad was sentenced based on a binding plea agreement, the district court lacked authority to reduce his sentence under section 3582(c)(2). See United States v. Scurlark, 560 F.3d 839, 841-43 (8th Cir.2009).
Accordingly, the judgments are affirmed.
. The Honorable Ronald E. Longstaff, United States District Judge for the Southern District of Iowa.
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MEMORANDUM **
Kenneth Kilpatrick (“Kilpatrick”) appeals the district court’s grant of summary judgment in his 42 U.S.C. § 1983 suit against Officers Carlos Quiroz (“Quiroz”) and Robert Hernandez ■ (“Hernandez”). We have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm the district court.
The district court properly granted summary judgment on Kilpatrick’s Sixth Amendment claim against defendant Qui-roz because Kilpatrick failed to raise a genuine issue of material fact as to whether Quiroz fabricated evidence or filed a false police report. See Hauk v. JP Morgan Chase Bank USA, 552 F.3d 1114, 1117 (9th Cir.2009) (“Summary judgment is proper ‘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 the movant is entitled to judgment as a matter of law.’ ” (quoting Fed.R.CivP. 56(c))).
The district court properly granted summary judgment on Kilpatrick’s Fourth Amendment claim against Quiroz because Kilpatrick failed to show that Quiroz lacked probable cause for the arrest. See Ramirez v. City of Buena Park, 560 F.3d 1012, 1023 (9th Cir.2009) (“The Fourth Amendment requires police officers to have probable cause before making a war-rantless arrest.”). For the same reason, Kilpatrick’s malicious prosecution claim fails. See HMS Capital, Inc. v. Lawyers Title Co., 118 Cal.App.4th 204, 12 Cal.Rptr.3d 786, 793 (2004) (stating that a claim of malicious prosecution under California law is established by showing that an action “(1) was commenced by or at the direction of the defendant, or the defendant continued to prosecute it after discovering it lacked probable cause, and it was pursued to a legal termination in plaintiffs favor; (2) was brought without probable cause; and (3) was initiated with malice”).
*85The district court properly granted summary judgment on Kilpatrick’s Eighth Amendment claim against defendant Robert Hernandez because Kilpatrick presented no evidence of an official policy or custom that violated Kilpatrick’s constitutional rights. See Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690-91, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978).
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3.
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MEMORANDUM **
The United States appeals the sentence imposed following Sergio Escoto Cortez’s guilty plea to being an illegal alien found in the United States following deportation in violation of 8 U.S.C. § 1326. The district court imposed a suspended sentence and then placed the defendant on probation for five years with a condition that he spend twelve months in custody during the probationary period. We reverse the district court and vacate the sentence for the reasons stated in United States v. Murillo, 548 F.3d 1256 (9th Cir.2008) (explaining that district courts do not have the power to suspend the imposition of a sentence, nor can a district court impose a constant period of imprisonment as a condition of probation); see also United States Sentencing Guidelines Manual, Ch. 7, Part A, § 2(a) (2007). We remand with instructions that the district court impose an appropriate sentence in accordance with Murillo.
SENTENCE VACATED; REMANDED FOR RESENTENCING.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Clifford Cook appeals the summary judgment in favor of the City and County of San Francisco, and police officers Antonio Flores, Don Sloan, and Marsha Ashe. We affirm for reasons stated by the district court.
In short: A plaintiff must show both discriminatory motive and discriminatory effect to prevail on an equal protection claim. Wayte v. United States, 470 U.S. 598, 608, 105 S.Ct. 1524, 84 L.Ed.2d 547 (1985). None of the acts upon which Cook relies raises a material factual issue about discriminatory intent. Cook did not ask for an interview before he was arrested (as he now maintains), and made no showing that the refusal to provide one was for racial reasons. Likewise, Flores did not think a bail enhancement was unwarranted on the merits, as Cook now posits; rather, Flores thought an enhancement unnecessary because bail would already be high given the number of charges. Flores also did not testify that the police department always obtained a warrant before arrest, just that it was protocol to let the district attorney go forward with the case to insulate the victim. Nor did Flores purport to say that Cook was the only police officer ever arrested before the warrant review *88process was completed; his testimony was limited to his own experience. Finally, there is no support for Cook’s claim that no other police officer was suspended for domestic violence immediately.
Neither did the district court improperly focus on probable cause, or impermissibly draw inferences in favor of the officers. The court never mentioned probable cause, and quite properly considered Ashe’s declaration as bearing on whether Cook’s arrest was motivated by racial animus. Cook’s contention with respect to inferences lacks force as it requires accepting how he restates the record instead of taking the testimony as it actually is.
As we agree with the district court’s analysis, we have no need to reach qualified immunity or Monell1 liability.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3.
. Monell v. Dep’t. of Soc. Servs., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978).
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PER CURIAM.
Tony Muhammad appeals the district court’s1 denial of relief under 18 U.S.C. § 3582(c)(2) based on Amendment 706 of the Sentencing Guidelines. Muhammad was indicted in two separate cases for conspiring to distribute cocaine base, but he entered a plea agreement covering both indictments and was sentenced to concurrent 228-month prison terms. The district court appointed counsel to represent Muhammad in bringing a section 3582(c)(2) motion, and denied a reduction. Muhammad’s filings were docketed in both criminal cases, and were denied by the district court in both cases. His notices of appeal are docketed as two consolidated appeals. Because Muhammad was sentenced based on a binding plea agreement, the district court lacked authority to reduce his sentence under section 3582(c)(2). See United States v. Scurlark, 560 F.3d 839, 841-43 (8th Cir.2009).
Accordingly, the judgments are affirmed.
. The Honorable Ronald E. Longstaff, United States District Judge for the Southern District of Iowa.
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MEMORANDUM **
The United States appeals the sentence imposed following Sergio Escoto Cortez’s guilty plea to being an illegal alien found in the United States following deportation in violation of 8 U.S.C. § 1326. The district court imposed a suspended sentence and then placed the defendant on probation for five years with a condition that he spend twelve months in custody during the probationary period. We reverse the district court and vacate the sentence for the reasons stated in United States v. Murillo, 548 F.3d 1256 (9th Cir.2008) (explaining that district courts do not have the power to suspend the imposition of a sentence, nor can a district court impose a constant period of imprisonment as a condition of probation); see also United States Sentencing Guidelines Manual, Ch. 7, Part A, § 2(a) (2007). We remand with instructions that the district court impose an appropriate sentence in accordance with Murillo.
SENTENCE VACATED; REMANDED FOR RESENTENCING.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Clifford Cook appeals the summary judgment in favor of the City and County of San Francisco, and police officers Antonio Flores, Don Sloan, and Marsha Ashe. We affirm for reasons stated by the district court.
In short: A plaintiff must show both discriminatory motive and discriminatory effect to prevail on an equal protection claim. Wayte v. United States, 470 U.S. 598, 608, 105 S.Ct. 1524, 84 L.Ed.2d 547 (1985). None of the acts upon which Cook relies raises a material factual issue about discriminatory intent. Cook did not ask for an interview before he was arrested (as he now maintains), and made no showing that the refusal to provide one was for racial reasons. Likewise, Flores did not think a bail enhancement was unwarranted on the merits, as Cook now posits; rather, Flores thought an enhancement unnecessary because bail would already be high given the number of charges. Flores also did not testify that the police department always obtained a warrant before arrest, just that it was protocol to let the district attorney go forward with the case to insulate the victim. Nor did Flores purport to say that Cook was the only police officer ever arrested before the warrant review *88process was completed; his testimony was limited to his own experience. Finally, there is no support for Cook’s claim that no other police officer was suspended for domestic violence immediately.
Neither did the district court improperly focus on probable cause, or impermissibly draw inferences in favor of the officers. The court never mentioned probable cause, and quite properly considered Ashe’s declaration as bearing on whether Cook’s arrest was motivated by racial animus. Cook’s contention with respect to inferences lacks force as it requires accepting how he restates the record instead of taking the testimony as it actually is.
As we agree with the district court’s analysis, we have no need to reach qualified immunity or Monell1 liability.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3.
. Monell v. Dep’t. of Soc. Servs., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978).
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PER CURIAM:
A Southern District of Florida jury convicted appellant, on Count 1, of conspiring with Yves Jerome and others to import cocaine into the United States between December 2003 and November 24, 2004, and, on Count 2, of conspiring with Vladimir Souffrant, Yves Jerome and others during the same time frame to possess •with intent to distribute cocaine. After the district court sentenced appellant to concurrent prison terms of 180 months, he took this appeal, challenging both his convictions and sentences. We first consider the challenges to his convictions, then his sentences.
I.
The Government’s case rested principally on the testimony of two of appellant’s co-conspirators, Yves Jerome and his cousin, Jean Paul, Paul’s mother (Jerome’s aunt), and two DEA agents. What the jury heard was that Jerome and Paul imported cocaine from the Bahamas to Florida in small aircrafts and that appellant flew the planes. Appellant, testifying in his own defense, admitted that he flew the aircraft. He claimed that he was innocent, however, because he cooperated with Jerome and Paul out of fear for his life and that of his family. The first time he met Jerome and Paul, Jerome put a gun to his head and told him that he had no choice but to cooperate with them and pilot the aircraft. Jerome told him that if he double crossed them, they would harm the members of his family. These threats continued throughout his relationship with the two men.
Appellant contends that (1) the evidence was insufficient to convict, and (2) the court abused its discretion in refusing to instruct the jury on his defense-that he *326acted under duress. We consider these contentions in turn.
A.
To establish each of the conspiracies at issue, the Government had to prove beyond a reasonable doubt that: (1) “there existed an agreement between two or more persons” to commit the underlying crime; and (2) “the defendant knowingly and voluntarily participated in that agreement.” United States v. Arbane, 446 F.3d 1223, 1228 (11th Cir.2006). “Whether the [defendant] knowingly volunteered to join the conspiracy may be proven by direct or circumstantial evidence, including inferences from the conduct of the alleged participants or from circumstantial evidence of a scheme.” United States v. Garcia, 405 F.3d 1260, 1270 (11th Cir.2005) (quotation omitted).
The Government established the Count 1 conspiracy because the evidence showed that appellant knowingly and voluntarily agreed with Jerome and Paul to import cocaine into the United States (from the Bahamas). The Government established the Count 2 conspiracy because the evidence showed that appellant knowingly and voluntarily agreed with Jerome and Paul to possess with intent to distribute cocaine. And, as noted, appellant admitted traveling to and from the Bahamas for the purpose of achieving the objectives of these conspiracies. In convicting him, the jury obviously rejected his testimony that he would not have engaged in the criminal enterprise had he, and indirectly his family, not been threatened.1
B.
Appellant contends that the district court improperly denied his proposed jury instruction on duress and coercion. He claims that his testimony showed that he (1) acted under an immediate threat or death or serious bodily harm to himself and his family; (2) had a well-grounded fear that the threat would be carried out; and (3) had no reasonable opportunity to escape or inform authorities. He points out that, as he testified throughout, he was paralyzed by fear and did not believe that he could go to the authorities.
We review a district court’s refusal to give a requested jury instruction for abuse of discretion. United States v. Martinelli, 454 F.3d 1300, 1309 (11th Cir.2006). We review de novo the issue of whether the defendant produced sufficient evidence to warrant a requested instruction. United States v. Calderon, 127 F.3d 1314, 1329 (11th Cir.1997).
A district court’s refusal to give a requested instruction is reversible error if (1) the requested instruction was a correct statement of the law, (2) its subject matter was not substantially covered by other instructions, and (3) its subject matter dealt with an issue in the trial court that was so important that failure to give it seriously impaired the defendant’s ability to defend himself.
Martinelli, 454 F.3d at 1309. A requested “theory of the defense” instruction is not substantially correct unless it has both legal support and some basis in the evidence. United States v. Hedges, 912 F.2d 1397, 1405 (11th Cir.1990).
In order to establish a coercion or duress defense, “a defendant must show that he acted under an immediate threat of death or serious bodily injury, that he had a well-grounded fear that the threat would *327be carried out, and that he had no reasonable opportunity to escape or inform the police.” Moreover, “[t]he requirement of immediacy of the threat is a rigorous one in which fear of future bodily harm to one’s self or to others will not suffice.” United States v. Wattleton, 296 F.3d 1184, 1196 n. 20 (11th Cir.2002) (emphasis and internal quotations omitted).
The district court did not abuse its discretion in denying appellant’s request for a duress jury instruction because the defense was not supported by the evidence. It is clear from the evidence, that appellant had ample opportunity to withdraw from the charged conspiracies and to report Jerome and Paul’s activities to law enforcement.
II.
Appellant contends that his sentences are unreasonable — that while it appears that they are reasonable because they are below the advisory guideline sentence range, the district court based his sentences on two legally-suspect determinations. First, the court did not properly consider the sentencing factors of 18 U.S.C. § 3553, namely the need to avoid unwarranted sentence disparities, because he received harsher sentences than co-conspirators with similar criminal records who were found guilty of similar conduct. Second, he should have received a minor role reduction of his base offense level and the court erred by concluding that his role was a major one by virtue of his skill as a pilot.
We review the final sentence imposed by the district court for reasonableness. United States v. Agbai, 497 F.3d 1226, 1229 (11th Cir.2007). The Supreme Court has clarified that the reasonableness standard means review of sentences for abuse of discretion. Gall v. United States, 552 U.S. 38, 50-51, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007). A district court must impose a sentence that is both procedurally and substantively reasonable. Id. The Court has explained that a sentence may be procedurally unreasonable if the district court improperly calculates the Guidelines imprisonment range, treats the Guidelines as mandatory, fails to consider the appropriate statutory factors, bases the sentence on clearly erroneous facts, or fails to adequately explain its reasoning. Id.
Section 3B1.2 of the Guidelines provides for a reduction in a defendant’s offense level if he played a minor or minimal role in the offense. U.S.S.G. § 3B1.2. In determining whether a minor role reduction is warranted, the district court should (1) measure the defendant’s role against the conduct for which he was held accountable at sentencing; and, (2) where the record evidence is sufficient, measure the defendant’s conduct against that of other participants in the attributed criminal scheme. United States v. De Varon, 175 F.3d 930, 934 (11th Cir.1999). Furthermore, “an acquittal does not bar a sentencing court from considering the acquitted conduct in imposing sentence.” United States v. Rivera-Lopez, 928 F.2d 372, 372 (11th Cir.1991) (quotation omitted). The “relevant conduct of which a defendant was acquitted nonetheless may be taken into account in sentencing for the offense of conviction, as long as the government proves the acquitted conduct relied upon by a preponderance of the evidence.” United States v. Faust, 456 F.3d 1342, 1347 (11th Cir.2006) (alteration and quotations omitted).
Once we conclude that the district court made no procedural errors, we then consider the substantive reasonableness of the sentence imposed under an abuse-of-discretion standard. Gall, 552 U.S. at 50-51, 128 S.Ct. at 597. The Supreme Court has suggested that such review entails determining whether the sentence is supported *328by the § 3553(a) factors. Id. at 55-57, 128 S.Ct. at 600. Where the district court imposes a sentence with in Guidelines sentence range, it need only “set forth enough to satisfy the appellate court that it has considered the parties’ arguments and has a reasoned basis for exercising [its] own legal decision making authority.” U.S.S.G. § 5Gl.l(a); Rita v. United States, 551 U.S. 338, 356, 127 S.Ct. 2456, 2468, 168 L.Ed.2d 203 (2007). Reasonableness review is “deferential,” there is a “range of reasonable sentences from which the district court may choose,” and “the party who challenges the sentence bears the burden of establishing that the sentence is unreasonable in light of both [the] record and the factors in section 3553(a).” United States v. Talley, 431 F.3d 784, 788 (11th Cir.2005). Finally, “disparity between sentences imposed on codefendants is generally not an appropriate basis for relief on appeal” because “to adjust the sentence of a co-defendant in order to cure an apparently unjustified disparity between defendants in an individual case will simply create another, wholly unwarranted disparity between the defendant receiving the adjustment and all similar offenders in other cases.” United States v. Regueiro, 240 F.3d 1321, 1325-26 (11th Cir.2001).
The § 3553(a) factors include: (1) the nature and circumstances of the offense and the history and characteristics of the defendant; (2) the need to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; (3) the need for deterrence; (4) the need to protect the public; (5) the need to provide the defendant with needed educational or vocational training or medical care; (6) the kinds of sentences available; (7) the Sentencing Guidelines range; (8) pertinent policy statements of the Sentencing Commission; (9) the need to avoid unwanted sentencing disparities; and (10) the need to provide restitution to victims. See 18 U.S.C. § 3553(a).
Appellant’s sentences are reasonable because the district court (1) correctly calculated the sentence range, i.e., the evidence supported the court’s finding that he was not entitled to a minor role reduction; and (2) specifically considered and relied on the need to avoid unwarranted sentencing disparities.
AFFIRMED.
. In addition to contending that the evidence was insufficient to convict, appellant contends that the district court should have granted him a new trial in the interest of justice. We reject this contention as frivolous.
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PER CURIAM:
Demetria Nicole Williams, appointed counsel for Russell Glenn Malone in this appeal from the district court’s denial of Malone’s motion to reduce his sentence under 18 U.S.C. § 3582(c)(2), has moved to withdraw from further representation of the appellant and filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Our independent review of the entire record reveals that counsel’s assessment of the *401relative merit of the appeal is correct. Because independent examination of the entire record reveals no arguable issues of merit, counsel’s motion to withdraw is GRANTED, and the district court’s denial of Malone’s § 3582(c)(2) motion is AFFIRMED.
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PER CURIAM:
Giles Jones, appointed counsel for Jose Martinez Chavez in this direct criminal appeal, has moved to withdraw from further representation of the appellant and filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Because independent examination of the entire record reveals no arguable issues of merit, counsel’s motion to withdraw is GRANTED, and Chavez’s *422convictions and sentences are AF' FIRMED.
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PER CURIAM:
Richard L. Rosenbaum, appointed counsel for Angel Olaya-Carvajal in this direct criminal appeal, has moved to withdraw from further representation of the appellant and filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Because independent examination of the entire record reveals no arguable issues of merit, counsel’s motion to withdraw is GRANTED, and Olaya-Carvajal’s convictions and sentences are AFFIRMED.
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ON MOTION
ORDER
PER CURIAM.
The Society for the Prevention of Trademark Abuse LLC moves to dismiss each of the nine above-captioned appeals. Stealth, Ltd. joins the motion to dismiss appeal no.2009-1205 and the Board of Regents, The University of Texas System joins the motion to dismiss appeal no.2009-1206. Leo Stoller moves for an extension of time to respond to the motions to dismiss and submits oppositions to the dismissal motions.
The court notes that Stoller has not paid the filing fee for any of the above-captioned appeals. In addition, the court determines, based on in forma pauperis motions submitted by Stoller in two contemporaneous appeals, nos.2009-1187 and 2009-1189, that Stoller is not eligible to proceed in forma pauperis in these appeals. Because the fee has not been paid and Stoller is not eligible to proceed in forma pauperis, the appeals are dismissed.
Accordingly,
IT IS ORDERED THAT:
(1) The appeals are dismissed.
(2) All pending motions are moot.
(8) All sides shall bear their own costs.
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Judgment
PER CURIAM.
This CAUSE having been heard and considered, it is
ORDERED and ADJUDGED:
AFFIRMED. See Fed. Cir. R. 36.
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JUDGMENT
This appeal was considered on the record from the agency and on the briefs and *449the oral arguments of the parties. Although the issues presented occasion no need for a published opinion, they have been accorded full consideration by the Court. See Fed. R.App. P. 36; D.C.Cir. Rule 36(d). For the reasons stated below, it is
ORDERED and ADJUDGED that the petition for review of the Order be denied.
First, the petitioner had fair notice of the EPA’s interpretations of 40 C.F.R. §§ 761.3, 761.20, 761.65, and 761.72. The “most natural” reading of the text of each of those regulations, along with the related provisions in the Federal Register, provided such notice. See NetworkIP, LLC v. FCC, 548 F.3d 116, 123 (D.C.Cir.2008).
Second, the petitioner has not met the “demanding” standard for making out a claim either of selective or of vindictive prosecution. See, e.g., United States v. Armstrong, 517 U.S. 456, 463, 116 S.Ct. 1480, 134 L.Ed.2d 687 (1996). Regardless whether EPS and G & S were similarly situated, EPS has not shown the EPA lacked a rational basis for bringing an enforcement action against EPS but not against G & S, see 3883 Conn. LLC v. District of Columbia, 336 F.3d 1068, 1075 (D.C.Cir.2003), or that the EPA had an improper motive, such as suppressing the petitioner’s speech about G & S, see United States v. Mangieri, 694 F.2d 1270, 1273 (D.C.Cir.1982). Nor has EPS shown even a “reasonable likelihood of vindictiveness” on the part of the EPA. See Maddox v. Elzie, 238 F.3d 437, 446 (D.C.Cir.2001) (citing United States v. Goodwin, 457 U.S. 368, 373, 102 S.Ct. 2485, 73 L.Ed.2d 74 (1982)).
Third, the conclusion of the Environmental Appeals Board that EPS was not acting as a “transfer facility” for the capacitors it was storing on July 9, 1999, see 40 C.F.R. § 761.3, was neither arbitrary nor capricious. Nor was the penalty of $133,100 imposed by the Board for EPS’s three violations of the Toxic Substances Control Act either “unwarranted in law” or “without justification in fact.” Pharaon v. Bd. of Governors, 135 F.3d 148, 155 (D.C.Cir.1998) (internal quotation marks omitted).
The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or petition for rehearing en banc. See Fed. R.App. P. 41(b); D.C.Cir. Rule 41.
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SUMMARY ORDER
Yu Qing Chen, a native and citizen of the People’s Republic of China, seeks review of a March 6, 2009, order of the BIA affirming the October 19, 2006, decision of Immigration Judge (“IJ”) Phillip L. Mo-race, which denied her application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Yu Qing Chen, No. A098 740 747 (B.I.A. Mar. 6, 2009), aff'g No. A098 740 747 (Immig. Ct. N.Y. City Oct. 19, 2006). We assume the parties’ famil*455iarity with the underlying facts and procedural history in this case.
When the BIA adopts the decision of the IJ and supplements the IJ’s decision, we review the decision of the IJ as supplemented by the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.2005). We review the agency’s factual findings under the substantial evidence standard. 8 U.S.C. § 1252(b)(4)(B); see also Manzur v. U.S. Dep’t of Homeland Sec., 494 F.3d 281, 289 (2d Cir.2007). We review de novo questions of law and the application of law to undisputed fact. See, e.g., Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.2008).
In order to qualify for asylum, an applicant must show past persecution or a well-founded fear of persecution on account of his or her race, religion, nationality, membership in a particular social group, or political opinion. See 8 U.S.C. § 1101(a)(42). Withholding of removal requires an applicant to show that, if removed, it is more likely than not that her life or freedom would be threatened on account of one of those protected grounds. 8 C.F.R. § 1208.16(b)(1). “The applicant bears the burden of demonstrating eligibility for asylum and withholding of removal.” Delgado v. Mukasey, 508 F.3d 702, 706 (2d Cir.2007).
Chen asserts that she is entitled to asylum and withholding of removal because she is part of the “social group” of Chinese citizens repatriated to China from the United States. She argues that the agency erroneously relied on Matter of A-M-E & J-G-U-, 24 I. & N. Dec. 69, 74-76 (BIA 2007), in finding that this alleged social group is not socially visible or defined with sufficient particularity, contending that, to the contrary, members of the group are easily visible upon inspection of their travel documents and sufficiently particular because they constitute a small percentage of the Chinese population.
We need not resolve this issue, for even if the social group Chen proposes were proper, the BIA’s determination that Chen failed to demonstrate a reasonable fear of persecution is supported by substantial evidence. Chen does not challenge the BIA’s finding that Chen’s treatment following her return to China following her first departure — in which she was detained by Chinese authorities for one hour, questioned and fined — did not amount to persecution. See e.g., Xiu Fen Xia v. Mukasey, 510 F.3d 162, 166 (2d Cir.2007) (noting that not all harm or punishment rises to the level of persecution). Chen does, however, challenge the BIA’s finding that Chen failed to demonstrate that she would face more severe consequences if removed to China, citing the evidence she presented regarding prison conditions in China generally and her testimony that others have been detained for longer periods of time in poor conditions. Although Chen’s testimony regarding the experience of others provides some evidence to support a threat of future persecution, in light of Chen’s own prior experience, we cannot find that “any reasonable adjudicator would be compelled to conclude” that Chen possessed an objectively reasonable fear. 8 U.S.C. § 1252(b)(4)(B); see also Aslam v. Mukasey, 537 F.3d 110, 114 (2d Cir.2008) (per curiam) (“[W]e will reverse a finding of fact only if a reasonable fact finder would be compelled to reach a contrary conclusion.”) (internal quotation marks omitted). Accordingly, the BIA’s determination that Chen lacked the requisite threat of future persecution is supported by substantial evidence, and therefore the BIA did not err in denying her applications for asylum and withholding of removal. See 8 U.S.C. § 1101(a)(42); 8 C.F.R. § 1208.16(b)(1).
Chen further argues that the agency erred in denying her request for CAT *456protection. Specifically, she contends that the agency failed to fully and fairly consider the background evidence she submitted. Although an immigration judge cannot ignore material record evidence in considering an application for relief, we do not require the agency to provide detailed analysis of every piece of evidence in the record. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 338 n. 17 (2d Cir.2006) (“[W]e presume that an IJ has taken into account all of the evidence before him, unless the record compellingly suggests otherwise.”). Furthermore, the agency does not err in finding that a petitioner is not “entitled to CAT protection based solely on the fact that she is part of the large class of persons who have illegally departed China.” See Mu Xiang Lin v. U.S. Dep’t of Justice, 432 F.3d 156, 159-60 (2d Cir.2005) (emphasis omitted); see also Mu-Xing Wang v. Ashcroft, 320 F.3d 130, 143-44 (2d Cir.2003). Here, the agency explicitly considered the background evidence and reasonably found that it did not support a finding that Chen — who departed on a valid Chinese passport, was not a criminal or snakehead, and had been detained upon repatriation once before for an hour without any harm — would more likely than not be tortured upon return to China. See Xiao Ji Chen, 471 F.3d at 338 n. 17.
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
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SUMMARY ORDER
Petitioner Mohammed Azad, a native and citizen of Bangladesh, seeks review of an April 16, 2009 order of the BIA denying his motion to reopen. In re Mohammed Azad, No. A072 439 727 (B.I.A. Apr. 16, 2009). We assume the parties’ familiarity with the underlying facts and procedural history in this case.
We review the BIA’s denial of a motion to reopen for abuse of discretion. See Kaur v. BIA, 413 F.3d 232, 233 (2d Cir.2005) (per curiam). However, when the BIA considers relevant evidence of country conditions in evaluating a motion to reopen, we review the BIA’s factual findings under the substantial evidence standard. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir.2008). An alien seeking to reopen proceedings may file one motion to reopen no later than 90 days after the date on which the final administrative decision was rendered. See 8 C.F.R. § 1003.2(c)(2). However, there is no time or numerical limit for filing a motion to reopen if it is “based on changed *458circumstances arising in the country of nationality or in the country to which deportation has been ordered, if such evidence is material and was not available and could not have been discovered or presented at the previous hearing.” 8 C.F.R. § 1003.2(c)(3)(ii). In this case, the BIA reasonably denied Azad’s motion to reopen based on his failure to offer material evidence of changed country conditions that would alter the outcome of his case.
Contrary to Azad’s argument that the BIA applied an inappropriately stringent standard, he was required to show not only that conditions in Bangladesh had changed, but that such changes were material to his claim for relief. Shao, 546 F.3d at 168. Moreover, the BIA did not abuse its discretion in concluding that Azad failed to establish his prima facie eligibility for asylum based on the evidence he presented. See INS v. Abudu, 485 U.S. 94, 104-05, 108 S.Ct. 904, 99 L.Ed.2d 90 (1988). Azad’s claim that he will be targeted by fundamentalists because he is an “Americanized Bangladeshi” is unsupported by the record, which reflects a general increase in fundamentalist violence in Bangladesh, but not that individuals in Azad’s circumstances are targeted in particular. See Melgar de Torres v. Reno, 191 F.3d 307, 314 (2d Cir.1999). Furthermore, the BIA reasonably concluded that Azad’s claim that he will be targeted because fundamentalists perceive him to have money and status lacks a nexus to a protected ground. See Ucelo-Gomez v. Mukasey, 509 F.3d 70, 73 (2d Cir.2007); In re A-M-E & J-G-U-, 24 I. & N. Dec. 69, 74 (BIA 2007).
Finally, the BIA did not err in finding that Azad failed to submit evidence to support his claim that families who refuse forced marriage for their daughters will be the target of fundamentalist threats. See Shao, 546 F.3d at 169. To the extent Azad’s claim is based on the threat of harm to his daughter, this Court has determined that a petitioner is not prima facie eligible for asylum based on the persecution of a family member. See Shi Liang Lin v. U.S. Dep’t of Justice, 494 F.3d 296, 308 (2d Cir.2007).
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
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SUMMARY ORDER
Petitioner Jin Zhi Piao, a native and citizen of the People’s Republic of China, seeks review of a February 5, 2009 order of the BIA affirming the March 15, 2007 decision of Immigration Judge (“IJ”) Sandy K. Horn, denying her application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Jin Zhi Piao, No. A098 985 993 (B.I.A. Feb. 5, 2009), aff'g No. A098 985 993 (Immig. Ct. N.Y. City Mar. 15, 2007). We assume the parties’ familiarity with the underlying facts and procedural history in this case.
When the BIA adopts the decision of the IJ and supplements the IJ’s decision, we review the decision of the IJ as supplemented by the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.2005). Because the BIA adopted the IJ’s adverse credibility determination based solely on the IJ’s findings of inconsistencies between Piao’s testimony and other statements in the record, we need not address other reasons cited by the IJ for rejecting her testimony. See Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir.2005).
We review the agency’s factual findings under the substantial evidence standard. 8 U.S.C. § 1252(b)(4)(B); see Corovic v. Mukasey, 519 F.3d 90, 95 (2d Cir.2008). Questions of law and the application of law to undisputed fact are reviewed de novo. See, e.g., Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.2008). For asylum applications, such as Piao’s, which were filed after May 11, 2005, the assessment of an applicant’s credibility is governed by the amendments to the Immigration and *460Nationality Act made through the REAL ID Act of 2005. Under these provisions, the agency may base a credibility finding on an asylum applicant’s demeanor, the plausibility of his or her account, and inconsistencies in his or her statements, without regard to whether they go “to the heart of the applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); see also Matter of JY-C-, 24 I. & N. Dec. 260, 265 (BIA 2007). We “defer to an IJ’s credibility determination unless, from the totality of the circumstances, it is plain that no reasonable fact-finder could make such an adverse credibility ruling.” Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir.2008).
In this case, the IJ based his negative assessment of Piao’s credibility primarily on two inconsistencies between Piao’s testimony and other statements Piao made elsewhere in the record. First, while Piao testified that she feared future persecution in China on account of her Christianity, the 1-213 submitted into evidence by the government indicated that she told border officials that she had no fear of returning to China and merely wanted to live and work in the United States. Second, while Piao initially testified that the police ransacked and searched her home at 2:00 p.m. on April 14, 2005, she stated in her asylum application that this incident occurred at 10:00 a.m. Given the totality of the circumstances, these inconsistencies provided substantial evidence in support of the IJ’s adverse credibility determination. See id.
First, Piao’s credibility was undermined by her failure to mention during her interview with border officials that she had suffered past persecution and feared future persecution on account of her Christianity, a serious omission that bore directly on the very basis of her claims for relief. See Yun-Zui Guan v. Gonzales, 432 F.3d 391, 398 (2d Cir.2005) (“[W]here ... a petitioner has provided two distinct, non-overlapping accounts of persecution, ... an IJ must ... rely on the commonsense observation that it is inconsistent for a petitioner to respond to the same question about the nature of [his] asylum claim with two entirely different responses.”); see also Cheng Tong Wang v. Gonzales, 449 F.3d 451, 453-54 (2d Cir.2006). Piao argues that the 1-213, the form that recorded her interview with border officials, was unreliable because of “translation problems” and that the IJ therefore should not have admitted it into evidence. We have held that an 1-213 form is “presumptively reliable,” because it “containfs] guarantees of reliability and trustworthiness that are substantially equivalent” to those required of business records admissible under the Federal Rules of Evidence. Felzcerek v. INS, 75 F.3d 112, 116-17 (2d Cir.1996).
Piao’s argument does not undermine this presumption of reliability and trustworthiness. Her interview responses were recorded with the assistance of a Chinese interpreter. Although Piao’s “best” language is Korean, she admitted that she understood the questions asked of her as they were translated by the interpreter. She further testified that she understood and spoke Chinese, that she attended two years of business school taught entirely in Chinese, and that she spoke exclusively in Chinese at work. Furthermore, in weighing the trustworthiness of the document, the IJ noted that the information contained in the 1-213 regarding Piao’s arrival date, place of arrival, and method of arrival in the United States was consistent with her testimony. Thus, based on Piao’s own testimony, it was reasonable for the IJ to conclude that the purported translation problems did not undermine the reliability of the 1-213. See id.
*461Second, Piao argues that the IJ “intentionally ignored” her “reasonable explanation” for the inconsistency in her statements regarding the timing of the police visit to her home, i.e., that the police visited her home twice in a single day. However, the IJ acknowledged and rejected this explanation. While he was required to consider Piao’s explanation, he was not compelled to credit it. See Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir.2005). Accordingly, the IJ did not err in denying Piao’s asylum application.
Finally, because Piao’s claims for withholding of removal and CAT relief were based on the same factual predicate as her asylum claim, the adverse credibility determination in this case was also a valid basis for denying those claims. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.2006).
For the foregoing reasons, the petition for review' is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
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SUMMARY ORDER
Plaintiff-Appellant Joseph A. Levine (“Levine”) appeals from a judgment of the United States District Court for the Western District of New York (Telesca, J.) entered on February 4, 2009, 2009 WL 261470, granting the motions to dismiss of Defendants-Appellees Greece Central School District (“GCSD”), Donald Nado-linski, Deborah Hoeft, Amy Peritsky, and Kenneth Merkey (collectively “District Defendants”) and Monroe 2-Orleans Board of Cooperative Educational Services (“BOCES”), David Mancuso, and Kathleen Madonia (collectively “BOCES Defendants”). Levine brought suit against Defendants-Appellees for violations of the Individuals with Disabilities Education Act (IDEA), § 504 of the Rehabilitation Act of 1973, the Americans with Disabilities Act (ADA), the Equal Protection and Due Process Clauses of the Fourteenth Amendment of the United States Constitution, and 42 U.S.C. § 1983, in relation to injuries he suffered while a student at GCSD and BOCES from 2005 until 2007, and for Defendants-Appellees’ alleged failure to provide him with a free appropriate public education (FAPE) as required by the IDEA. The district court dismissed Levine’s complaint for lack of subject matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1) because Levine had failed to exhaust his administrative reme*463dies as required by the IDEA and did not sufficiently allege that any exception to the exhaustion requirement applied. We assume the parties’ familiarity with the underlying facts, procedural history, and specification of the issues on appeal.
We review a district court’s grant of a motion to dismiss for lack of subject matter jurisdiction under Fed.R.Civ.P. 12(b)(1) de novo for conclusions of law; we must also accept the facts alleged in the complaint as true. Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir.2006). We may affirm on any basis supported by the record, including grounds not relied on by the district court. See, e.g., Thyroff v. Nationwide Mut. Ins. Co., 460 F.3d 400, 405 (2d Cir.2006).
A. The IDEA’S Exhaustion Requirement
“It is well settled that the IDEA requires an aggrieved party to exhaust all administrative remedies before bringing a civil action in federal or state court.” J.S. ex rel. N.S. v. Attica Cent. Schs., 386 F.3d 107, 112 (2d Cir.2004). This administrative process “includes review by an impartial due process hearing officer and an appeal from that hearing.” Id. (citing 20 U.S.C. § 1415(f), (g)). A party who, under other federal statutes, seeks relief that is also available under the IDEA must satisfy the IDEA’S exhaustion requirements. See id. at 116; 20 U.S.C. § 1415(i).
There is no dispute that Levine did not exhaust the administrative remedies available to him and required by the IDEA. The parties do dispute whether the IDEA’S exhaustion requirement is jurisdictional — that is, whether failure to exhaust administrative remedies prevents a federal court from exercising subject matter jurisdiction over the claim, or whether failure to exhaust is merely an affirmative defense that must be raised by the defendant or else is subject to waiver or forfeiture. Whether or not the exhaustion requirement is jurisdictional, exhaustion of administrative remedies is a prerequisite to a civil suit unless the plaintiff can allege that an exception should apply. Coleman v. Newburgh Enlarged City Sch. Dist., 503 F.3d 198, 204-05 (2d Cir.2007). We need not address whether it is jurisdictional. Both sets of defendants raised the exhaustion issue before the district court. See id. at 204 (declining to decide whether the IDEA exhaustion requirement is jurisdictional as the defendants did not waive the argument that plaintiff had not exhausted remedies).
Levine argues that, if exhaustion of administrative remedies is merely an affirmative defense, it was premature for Defendants to assert it in a pre-answer motion to dismiss and thus it was waived. We disagree, because the complaint concedes that Levine failed to exhaust administrative remedies. Under those circumstances, when the complaint on its face shows that there is no possibility that it could be amended to allege facts that, if true, would demonstrate that the plaintiff satisfied the exhaustion requirement, failure to exhaust is a proper ground for a motion to dismiss. See Mosely v. Bd. of Educ., 434 F.3d 527, 533 (7th Cir.2006) (describing this “shortcut”); cf. United States v. Moreno-Rivera, 472 F.3d 49, 50 n. 2 (2d Cir.2006) (per curiam) (noting that government’s objection to the timeliness of appeal could be asserted in motion to dismiss appeal).
B. Equitable Estoppel
Levine further argues that Defendants should be estopped from asserting an exhaustion defense because Defendants made misrepresentations to Levine’s parents regarding the necessity of administra*464tive remedies. The complaint alleges that in late 2005, a GCSD official, Defendant Kenneth Merkey, told the Levines, in response to Mr. Levine’s statement that he thought an impartial hearing was needed, that “there was not a need to hold such a meeting; further ... that they (GCSD) will get Joseph the help he needs.” Compl. ¶ 63. The complaint further alleges that this statement “induced Mr. Levine not to take action on behalf of Joseph ... [and] discouraged Mr. Levine from exhausting administrative remedies.” Id. ¶ 64. We note that the complaint alleges nothing that would support an estoppel argument against the BOCES Defendants; therefore this argument is inapplicable to them.
Assuming the facts alleged are true, they do not support an equitable estoppel argument. The complaint alleges that Merkey made his statement to Levine in “late 2005.” Compl. ¶ 63. However, many of the complaint’s allegations center around conduct of Defendants that took place in 2006 and 2007. See, e.g., id. ¶¶ 24, 31-49, 66-69. Moreover, the complaint discloses that Levine filed a complaint with the New York State Education Department (SED) in March, 2006. Id. ¶58. The SED complaint shows that the Le-vines did not rely on Merkey’s statement that GCSD would provide Joseph the help needed. Moreover, to support an equitable estoppel argument, a party must show that its detrimental reliance was reasonable under the circumstances. See Paese v. Hartford Life Accident Ins. Co., 449 F.3d 435, 447 (2d Cir.2006). The complaint alleges that conditions for Levine did not improve after late 2005 and that the district continued to fail to provide him a FAPE. Compl. ¶ 73. The complaint alleges no facts that would indicate that, under these circumstances, the Levines’ continued reliance on Merkey’s statement was reasonable. We conclude that the District Defendants are not estopped from arguing that Levine failed to exhaust administrative remedies.
C. Futility
Levine argues that he should be excused from satisfying the IDEA’S exhaustion requirements on the ground that it would have been futile for him to resort to the available administrative remedies. A plaintiff is excused from the IDEA’S exhaustion requirement if he proves that “it would be futile to resort to the IDEA’S due process procedures.” Murphy v. Arlington Cent. Sch. Dist. Bd. of Educ., 297 F.3d 195, 199 (2d Cir.2002). “[A] plaintiff must demonstrate that ‘adequate remedies are not reasonably available,’ ” Coleman, 503 F.3d at 205 (quoting J.G. by Mrs. G. v. Bd. of Educ., 830 F.2d 444, 447 (2d Cir.1987)), “or that ‘the wrongs alleged could not or would not have been corrected by resort to the administrative hearing process.’ ” Id. (quoting Heldman v. Sobol, 962 F.2d 148, 158 (2d Cir.1992)). The party seeking to be excused from the exhaustion requirement bears the burden of proving futility. Polera v. Bd. of Educ., 288 F.3d 478, 488 n. 8 (2d Cir.2002).
None of the grounds for futility asserted by Levine are supported by the complaint. First, Levine argues that Merkey’s statement to his parents constituted action by the defendants that caused the Levines not to exhaust the available administrative remedies. Although we have suggested that parents who are denied the opportunity by the school district to pursue administrative remedies are not subject to the IDEA’S exhaustion requirement, see, e.g., J.G., 830 F.2d at 447, the complaint here alleges nothing to suggest that Defendants took any action that prevented the Levines from seeking an impartial hearing. Moreover, it is undisputed that the Levines received Procedural Safeguards Notices *465from the District informing them of the availability of such remedies. Compl. ¶¶ 61-62. For the same reasons that Mer-key’s statement does not estop the District Defendants from asserting a failure-to-exhaust argument, we conclude that the statement also does not amount to an action that prevented the Levines from seeking further review in late 2005 when it was made, or at any point thereafter.
Second, Levine argues that he should be excused from exhausting administrative remedies because the Defendants failed to implement the provisions of his Individualized Education Program (IEP). The complaint, however, alleges that not only did Defendants fail to implement Levine’s IEP, Compl. ¶¶ 55, 59-60, but also that Levine’s existing IEP was not “appropriate,” id. ¶¶ 55, 60, and that Defendants failed in various other ways to provide Levine with a FAPE. Our cases that have allowed plaintiffs to avoid the exhaustion requirement due to a school district’s failure to implement a student’s IEP have done so only in narrow situations in which the plaintiffs claim is limited to the allegation that “a school has failed to implement services that were specified or otherwise clearly stated in an IEP.” Polera, 288 F.3d at 489; see also SJB ex rel. Berkhout v. N.Y. City Dep’t of Educ., No. 03 Civ. 6653, 2004 WL 1586500, at *5 (S.D.N.Y. July 14, 2004). The complaint’s allegations are clearly far broader than the Defendants’ failure to implement specific concrete requirements of an IEP, and therefore do not support the argument that it would have been futile for Levine to seek administrative remedies for Defendants’ alleged conduct.
Finally, Levine argues that because the problems at GCSD and BOCES were “systemic,” failure to exhaust administrative remedies would be futile because such remedies would not be able to solve the larger problems with the way GCSD and BOCES deal with students with special needs. The basis for this argument is that GCSD was the defendant in a class action law suit, K.B. et al. v. Board of Education of the Greece Central School District, which alleged that GCSD failed to provide FAPEs to “students requiring special education services.” Compl. ¶ 65. The class action was settled in August, 2007. Id. We have, however, only allowed a plaintiff to be excused from the exhaustion requirement when the plaintiff challenges conduct that administrative remedies, which focus on the individual needs of particular students, have “no power to correct.” J.S., 386 F.3d at 113. These are cases involving “the framework and procedures for assessing and placing students in appropriate educational programs” or which involve a high volume of complaints challenging general practices by defendants that allegedly violate the IDEA. Id. at 114; see also id. at 113-14 (collecting cases). Because, as the district court noted, it is clear from the complaint that Levine is challenging the Defendants’ treatment of him individually, and does not make allegations other than in conclusory fashion that his situation resulted from systemic violations of the IDEA, see Compl. ¶ 65, we conclude that it would not have been futile for him to resort to administrative remedies.
D. Conclusion
We conclude that, even if failure to exhaust administrative remedies under the IDEA does not divest the federal courts of subject matter jurisdiction, Levine’s complaint contains no allegations sufficient to demonstrate that his failure to comply with this mandatory statutory requirement should be excused. We have considered Levine’s remaining arguments and find them to be without merit. For the forego*466ing reasons, the judgment of the district court is hereby AFFIRMED.
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*467SUMMARY ORDER
Petitioners’ counsel seeks review of the lower court’s fee award in connection with a settlement following a Fair Labor Standards Act suit brought by current and former employees of SGS Control Services, Inc. and affiliated companies. Respondents express no view with respect to the arguments on appeal. We assume the parties’ familiarity with the facts, procedural context, and specification of appellate issues.
We review the District Court’s fee award under a deferential abuse of discretion standard. Goldberger v. Integrated Res., Inc., 209 F.3d 43, 47-48 (2d Cir.2000). “A district court ‘abuses’ or ‘exceeds’ the discretion accorded to it when (1) its decision rests on an error of law (such as application of the wrong legal principle) or a clearly erroneous factual finding, or (2) its decision — though not necessarily the product of a legal error or a clearly erroneous factual finding — cannot be located within the range of permissible decisions.” Zervos v. Verizon N.Y., Inc., 252 F.3d 163, 169 (2d Cir.2001) (footnotes omitted). It merits underscoring that “ ‘abuse of discretion’ — already one of the most deferential standards of review — takes on special significance when reviewing fee decisions.” Goldberger, 209 F.3d at 47. “[T]he district court, which is intimately familiar with the nuances of the case, is in a far better position to make [such] decisions than is an appellate court, which must work from a cold record.” In re Bolar Pharm. Co., Inc., Sec. Litig., 966 F.2d 731, 732 (2d Cir.1992) (per curiam).
After careful review of the District Court’s thorough and well-reasoned Decision and Order and Order denying Petitioners’ Motion for Reconsideration, we hold that there is no basis to find that the District Court exceeded the bounds of its discretion in determining the appropriate percentage award in this case. Petitioners base their arguments before this Court on the grounds that other cases have been decided differently. However, they have not pointed to anything in the record to suggest that the District Court abused its ample discretion in deciding the case before it or that its common fund fee award of 19% “cannot be located within the range of permissible decisions.” Zervos, 252 F.3d at 169. Nor are we persuaded that either Trustees v. Greenough, 105 U.S. 527, 26 L.Ed. 1157 (1881), or Cent. R.R. & Banking Co. v. Pettus, 113 U.S. 116, 5 S.Ct. 387, 28 L.Ed. 915 (1885), compels a contrary result.
Further, the District Court’s decision to exclude the $674,320 in prior payments is firmly rooted in the Settlement Agreement, which contemplates that attorneys’ fees will be based on a percentage of the “Settlement Payment,” which is defined as “the $7,250,000.00 payment plus accrued interest thereon,” and expressly does not include the earlier payments. Thus, we find no abuse of discretion in the District Court’s exclusion of this amount from the fee base. We remand, however, for the District Court to reconsider and, if adhered to, to explain its parallel decision to exclude the interest accrued on the principal $7,250,000 settlement from the fee base, given that this amount is specifically included as part of the “Settlement Payment,” from which fees are to be awarded.
Accordingly, the order of the district court is AFFIRMED as to the common fund fee percentage and the exclusion of the prior payments and REMANDED for an explanation into the exclusion of the accrued interest.
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SUMMARY ORDER
Defendant Miciceale Delileon is serving a 300-month prison sentence following his 1991 conviction by a jury of possessing crack cocaine with intent to distribute, and conspiracy to do so, in violation of 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(A), and 846. At his sentencing, he was held accountable for distributing more than 240 kilograms of crack. He appeals from the District Court’s denial of his motion for a reduction in his sentence pursuant to 18 U.S.C. § 3582(c)(2), based on amendments to the United States Sentencing Guidelines adopted in March 2008, which reduced the recommended guideline sentences for distributing crack, and made the new guideline recommendations retroactive subject to certain conditions (collectively, the “crack-cocaine amendments”). See U.S.S.G.App. C, Amends. 706 & 713; United States v. McGee, 553 F.3d 225, 225-26 (2d Cir.2009) (per curiam).1 Because the District Court correctly ruled that Delileon is ineligible for the relief he seeks, and did not abuse its discretion in ruling that it would deny the requested reduction even if Delileon were eligible, the judgment of the district court is affirmed.
“[W]e review a district court’s decision to deny a motion under 18 U.S.C. § 3582(c)(2) for abuse of discretion.” United States v. Borden, 564 F.3d 100, 104 (2d Cir.2009). A district court’s interpretation of the Sentencing Guidelines and relevant statutes underlying that decision, however, is reviewed de novo. United States v. Main, 579 F.Sd 200, 202-03 (2d Cir.2009).
“A district court may not generally modify a term of imprisonment once it has been imposed.” Cortorreal v. United States, 486 F.3d 742, 744 (2d Cir.2007) (per curiam). Section 3582(c)(2) provides a limited exception to this principle. Under that statute, a court “may reduce the term of imprisonment, after considering the factors set forth in [18 U.S.C. § ] 3553(a) to the extent that they are applicable,” where the defendant “has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission,” to the extent that such a reduction is consistent with policy statements issued by the Sentencing Commission. The policy statement relevant here provides, among other things, that the sentence of an eligible defendant may not be reduced below the amended guideline range. U.S.S.G. § lB1.10(b)(2)(A).
Section 3582(c)(2) is simply inapplicable to Delileon. Although the crack-cocaine amendments reduced the guidelines applicable to most crack offenders, the amendment did not reduce the guideline applicable to the highest category of crack offenders, which remained at 38. Although Amendment 706 to the Sentencing Guidelines did increase the minimum quantity of crack that would place an offender at that level from 1.5 to 4.5 kilo*470grams, this amendment had no bearing on Delileon, who was found responsible for the distribution of more than 50 times the new minimum quantity for that category. Thus, his sentence was not “based on a sentencing range that has subsequently been lowered” by the Commission, as is required to receive a sentence reduction. See 18 U.S.C. § 3582(c)(2).
When Delileon was originally sentenced in 1991, and when his sentence was reduced in 1996, the guidelines were understood to be mandatory; subsequently, in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the Supreme Court determined that the mandatory guidelines regime was unconstitutional, and that the guidelines must be treated as advisory in order to pass constitutional muster. Delileon argues that the combination of Booker and § 3582(c)(2) entitles him to plenary resentencing, in which the District Court should be required to reconsider his sentence without constraint of the guidelines, citing the Ninth Circuit’s ruling in United States v. Hicks, 472 F.3d 1167, 1168 (9th Cir.2007), that the policy statement in § lB1.10(b)(2)(A) must be treated, after Booker, as merely advisory. He is triply wrong.
First, Hicks has been rejected by this Court, which has joined all the other Circuits that have considered the issue in concluding that sentencing courts lack the authority under § 3582(c)(2) to reduce a defendant’s sentence below the amended guideline range. United States v. Savoy, 567 F.3d 71, 73-74 (2d Cir.2009) (per curiam). Second, even if Hicks were good law in this Circuit, by its own terms, Hicks is inapplicable to Delileon. Hicks held that for defendants (like Hicks, but unlike Delileon) who are eligible for a modification of sentence under § 3582(c)(2) “because the Sentencing Commission lowered the applicable sentencing range,” 472 F.3d at 1171, a district court was not limited to the extent of reduction authorized by the Sentencing Commission. The Hicks panel expressly noted that Hicks did not argue “that he deserves a § 3582(c)(2) re-sentencing because of Booker,” id., but only that when his sentence was properly reconsidered under the statute, the district court was free to impose whatever sentence seemed appropriate in light of § 3553(a). Delileon’s problem is different; he is not eligible for relief under § 3582(c)(2) in the first place, because the guideline level for his particular offense was not reduced by the Commission. Third and finally, the District Court in this case expressly ruled that, even if it were free to resentence Delileon under the advisory guidelines regime, and to take account of the policy weaknesses of the disparity in the guideline levels applicable to defendants who sell powder and crack cocaine, as permitted by Kimbrough v. United States, 552 U.S. 85, 109-10, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007), it would not do so, because Delileon distributed so much crack that, “[e]ven if the Court applied a 1:1 crack/powder ratio to [his] drug amount, [Delileon’s] base offense level would remain 38.” (J.A. 9.) The decision whether to reduce a sentence under § 3582(c)(2) is within the discretion of the trial judge, Borden, 564 F.3d at 104, and we find no abuse of that discretion in the district court’s reasoning. Thus, even if Delileon were eligible for a reduction in sentence under § 3582(c)(2) — which he is not — it would avail him nothing, as the district court would in that case have appropriately denied his application anyway.
Accordingly, the judgment of the district court is affirmed.
. Delileon has already benefited from a prior similar reduction. Originally, Delileon was sentenced to life imprisonment, but in 1996 his sentence was reduced to 300 months pursuant to § 3582(c)(2) in consequence of an earlier amendment reducing the base offense level applicable to the distribution of more than 1.5 kilograms of crack, the highest category referenced in the guidelines, from 42 to 38. See U.S.S.G.App. C, Amend. 505.
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SUMMARY ORDER
Appellants, a class of pre-trial detainees at New York City jails, appeal the October 6, 2008, 2008 WL 4500689, decision of the district court (Baer, J.), terminating certain provisions of its April 26, 2001 order directing defendants the City of New York (the “City”) and the Department of Corrections (“DOG”) to remedy federal law-violations arising from environmental conditions in City jails. Appellants claim the district court (1) misinterpreted the requirement of the Prison Litigation Reform Act (PLRA), 18 U.S.C. § 3626(b)(3), that prospective relief be supported by a showing of a “current and ongoing” violation of federal law; (2) erred in weighing the evidence as to whether a violation existed; (3) wrongly concluded that they failed to make a required showing of harm; and (4) afforded them insufficient opportunity to present evidence. Because we find that Appellants were not afforded a sufficient opportunity to present evidence demonstrating continuing violations of their constitutional rights, we address only then-fourth claim, and vacate the district court’s decision and remand on that basis. We assume the parties’ familiarity with the facts and the record of prior proceedings, which we reference only as necessary to explain our ruling.
Prospective relief awarded pursuant to the PLRA may not be terminated “if the court makes written findings based on the record” that such relief “remains necessary to correct a current and ongoing violation” of federal rights. 18 U.S.C. § 3626(b)(3). We have previously explained that “[e]vidence presented at a prior time ... [does] not show a violation that is ‘current and ongoing.’ ” See Benjamin v. Jacobson, 172 F.3d 144, 166 (2d Cir.1999). Rather, the court must consider “conditions as of the time termination is sought.” Id. This does not confine a court’s review to a single day, nor was the district court of that view in this case. In reaching its challenged decision, the court considered evidence gathered over eleven months, notably (1) a report covering January-April 2008 and prepared by the Office of Compliance Consultants (“OCC”), a monitoring agency created by court order in this case in 1982; (2) a report of May 2007 observations prepared by Eugene Pepper, a sanitarian retained by OCC; and (3) voluminous DOC inspection records from July 2007 through March 2008. The DOC records, in particular, were produced in response to the court’s order granting limited discovery. However, the court denied Appellants’ requests for more extensive discovery, and limited the time period for discovery to approximately one month. The district court also declined to conduct an evidentiary hearing.
We review the district court’s conduct of discovery and its denial of an evidentiary hearing for abuse of discretion. See In re Agent Orange Prod. Liab. Litig., 517 F.3d 76, 103 (2d Cir.2008) (“A district court has wide latitude to determine the scope of *475discovery, and [we] ordinarily defer to the discretion of district courts regarding discovery matters.”) (internal quotation marks omitted); Zappia Middle East Constr. Co. Ltd. v. Emirate of Abu Dhabi, 215 F.3d 247, 253 (2d Cir.2000) (“The district court’s denial of an evidentiary hearing is subject to an abuse of discretion standard of review.”). “A district court has abused its discretion if it [has] based its ruling on an erroneous view of the law or on a clearly erroneous assessment of the evidence or rendered a decision that cannot be located within the range of permissible decisions.” Sims v. Blot, 534 F.3d 117, 132 (2d Cir.2008).
In Benjamin v. Jacobson, we held that, in response to a defendant’s PLRA-based motion to terminate prospective relief, “the district court must allow the plaintiffs an opportunity to show current and ongoing violations of their federal rights.” 172 F.3d at 166. We reversed where, in vacating the original consent decrees in that case, the district court had “denied plaintiffs’ request for an opportunity to present evidence.” Id. at 152. Here, it is true, the district court considered a voluminous record developed over the period of nearly a year. Yet the court appears to have discounted much of the evidence produced by OCC and the persons retained by it— including evidence that directly conflicted with the Appellees’ internal reports — on the grounds that the OCC reports were both older and less frequent than the internal reports of Appellees. At the same time, the limited time frame allotted for discovery made it difficult for these outside observers to conduct additional inspections, potentially providing evidence with which Appellants could challenge Ap-pellees’ reports. When plaintiffs challenging the self-reporting of detention facilities are necessarily forced by a court’s discovery order to rely on outside reports regarded by the court as too infrequent or stale to overcome defendants’ regular internal reporting, and are also denied an evidentiary hearing during which they might have discredited defendants’ contrary evidence, they are not afforded a meaningful “opportunity” to show continuing violations of their rights, as the law requires. See id. at 166; see also In re Agent Orange, 517 F.3d at 103 (requiring a “meaningful opportunity to establish the facts”). Accordingly, the district court’s order is vacated.
We are mindful that the conduct of discovery remains within the sound discretion of the district courts, and of the concern, evident in the record below, that an effort by a prison to terminate prospective relief should not necessitate months or years of discovery when the conditions at issue are the subject of ongoing monitoring. On remand, the district court need do no more than provide Appellants a reasonable opportunity to take discovery of current conditions, present evidence, and challenge Appellees’ internal reports. And the weighing of any evidence provided by Appellants after such an opportunity remains the task of the district court judge. See Phoenix Global Ventures LLC v. Phoenix Hotel Assocs., Ltd., 422 F.3d 72, 76 (2d Cir.2005) (“[C]lear error review mandates that we defer to the district court’s factual findings, particularly those involving credibility determinations.”).
For the foregoing reasons, the judgment of the district court is hereby VACATED and the case REMANDED to the district court for further proceedings consistent with this opinion.
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SUMMARY ORDER
Plaintiff Daniel Duviella appeals from an award of summary judgment in favor of defendant JetBlue Airways Corporation (“JetBlue”) on his claim that JetBlue failed to promote him and later discharged him because of his age and race in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq., and various state and local laws. We review a grant of summary judgment de novo, viewing the facts in the light most favorable to the non-moving party. See Havey v. Homebound Mortgage, Inc., 547 F.3d 158, 163 (2d Cir.2008). While we will not uphold an award of summary judgment in favor of the defendant if the evidence is sufficient to permit a reasonable jury to find for the plaintiff, the plaintiff must point to more than a “scintilla” of evidence in support of his position to defeat summary judgment. Id. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)) (internal quotation marks omitted). In applying these principles to this appeal, we assume the parties’ familiarity with the facts and the record of prior proceedings, which we reference only as necessary to explain our decision.
We affirm for substantially the reasons stated in the district court’s thorough and well-reasoned opinion. See Duviella v. JetBlue Airways Corp., No. 04 Civ. 5063, 2008 WL 1995449 (E.D.N.Y. May 6, 2008). We write briefly to explain our independent determination that Duviella has identified no evidence that would permit a reasonable jury to conclude that JetBlue was motivated by discrimination either when it declined to promote him or when it discharged him.
First, in claiming discriminatory termination, Duviella challenges the process used by JetBlue to investigate sexual harassment allegations against him, and he disputes the accuracy of the conclusions reached. “In a discrimination case, however, we are decidedly not interested in the truth of the allegations against plaintiff. We are interested in what ‘motivated the employer.’ ” McPherson v. New York City Dep’t of Educ., 457 F.3d 211, 216 (2d Cir.2006) (quoting United States Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 716, 103 S.Ct. 1478, 75 L.Ed.2d 403 (1983) (emphasis omitted)). Duviella has not adduced any evidence tending to demonstrate that JetBlue’s procedures or sanctions were influenced by his age or race. This is fatal to his discharge claim. See, e.g., Graham v. Long Island, R.R., 230 F.3d 34, 44 (2d Cir.2000) (holding that even if plaintiff could demonstrate that failed drug test proffered by defendant as ground for dismissal was in error, that showing would not demonstrate that reliance on test was pretext for discrimination); Brewer v. Quaker State Oil Refining Corp., 72 F.3d 326, 331 (3d Cir.1995) (“[T]he factual dispute at issue is whether a discriminatory animus motivated the employer, not whether *478the employer is wise, shrewd, prudent, or competent.” (internal quotation marks and citation omitted)). Indeed, Duviella has not identified any evidence indicating that the actions of either Julia Gomez, who investigated the harassment claims and recommended termination, or Barbara Shea, who made the ultimate termination decision, were motivated by Du-viella’s age or race. In Gomez’s case, the only record evidence indicates that she was unaware of that information. See Woodman v. WWOR-TV, Inc., 411 F.3d 69, 87 (2d Cir.2005) (holding that, to defeat summary judgment, plaintiff “was obliged to offer evidence indicating that persons who actually participated in her termination decision had ... knowledge” of her protected characteristics).
Second, although Duviella identified one person of a different race who purportedly was (1) disciplined less harshly for harassing conduct, and (2) investigated using different procedures, he failed to adduce evidence demonstrating that he and his comparators were similarly situated with respect to the harassment charged. If anything, the evidence indicates that Duviella was accused of more egregious conduct. Such a record cannot support an inference of discriminatory motive. See Mandell v. County of Suffolk, 316 F.3d 368, 379 (2d Cir.2003) (“A plaintiff relying on disparate treatment evidence must show she was similarly situated in all material respects to the individuals with whom she seeks to compare herself.” (internal quotation marks and citation omitted)).
Third, with respect to Duviella’s failure-to-promote claims, Duviella has likewise offered no evidence tending to show that the relevant actors — Laura Ko-nopka, who denied his June 2003 promotion application, and Salman Khan, who allegedly lied to him about the opportunity to apply for certain positions in August 2003 — were motivated by prohibited factors.1 Duviella conceded at his deposition that he had “no facts” to support his claims regarding Konopka’s decisionmak-ing, Duviella Dep. at 73, and he points to nothing more than a bare allegation that Khan’s actions were improperly motivated, see Appellant’s Br. at 19 (stating only that Duviella “alleges this action by Khan was deliberate and based on [Duviella’s] age and race”). Mere allegations are insufficient to defeat summary judgment. See Fed.R.Civ.P. 56(e); see also Holcomb v. Iona Coll., 521 F.3d 130, 138 (2d Cir.2008) (noting that plaintiff bears “ ‘ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against’ ” him (quoting Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981))). Moreover, the fact that the promotions in question were given to younger people of a different race is not sufficient, standing alone, to allow Duviella to carry his ultimate burden of proving discrimination. See Brown v. Henderson, 257 F.3d 246, 253-54 (2d Cir.2001) (observing that “what matters in the end is not how the employer treated other employees” who do not share plaintiffs characteristics, “but how the employer would have treated the plaintiff’ had he not possessed those characteristics (emphasis omitted)).
For the foregoing reasons, the judgment of the district court is AFFIRMED.
. Duviella’s appellate brief does not challenge the district court's grant of summary judgment on his claim that JetBlue discriminated against him in cancelling his October 2003 promotion interview. We deem any such challenge to be waived. See Norton v. Sam's Club, 145 F.3d 114, 117 (2d Cir.1998).
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SUMMARY ORDER
Henry Ikezi appeals from his conviction for conspiring to export stolen vehicles in violation of 18 U.S.C. § 371 after a jury trial before Judge Block. We assume the parties’ familiarity with the facts and various proceedings in this court and the district court.
Appellant argues that: (i) the admission of certain videotapes into evidence was error; (ii) there was insufficient evidence that he was a member of a conspiracy to export stolen cars; and (iii) the government violated his due process rights by turning over relevant material at the last moment before trial. We affirm.
Contrary to appellant’s contentions, the district court did not abuse its discretion, see United States v. Szur, 289 F.3d 200, 217 (2d Cir.2002), by admitting the surveillance videotapes of the meetings between appellant and his alleged co-conspirators. We have previously stated that Fed.R.Evid. 901 is satisfied “if sufficient proof has been introduced so that a reasonable juror could find in favor of authenticity or identification.” United States v. Dhinsa, 243 F.3d 635, 658 (2d Cir.2001) (internal quotation marks omitted). Rule 901(b)(9) requires “[ejvidence describing a process or system used to produce a result and showing that the process or system produces an accurate result.” Fed.R.Evid. 901(b)(9). The government produced evidence that agents set up the equipment, tested it and verified the nature of the taped meeting with the informant. This was sufficient.
Appellant argues that there was legally insufficient evidence of any conspiracy or of a conspiracy to export stolen vehicles. Viewing the evidence, including the videotapes, in the light most favorable to the prosecution, a rational trier of fact could have concluded that the existence of a conspiracy was proven beyond a reasonable doubt. See United States v. Jones, 393 F.3d 107, 111 (2d Cir.2004). Indeed, at one videotaped meeting, appellant actively engaged in the meeting by, among other things, viewing the bill of lading and paying the freight shipper. After viewing the videotapes, we also conclude that there was introduced sufficient evidence from which a reasonable jury could conclude that appellant knew that the conspiracy was to export stolen vehicles.
Appellant argues for the first time in his reply brief that he should be acquitted of the conspiracy conviction because he was acquitted on the substantive charge of exporting stolen vehicles. Because this argument was not raised in appellant’s opening brief, it has been waived. See Cantor Fitzgerald, Inc. v. Lutnick, 313 F.3d 704, 711 n. 3 (2d Cir.2002).
We are also unpersuaded by appellant’s argument that the government violated his rights under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). Appellant has not shown “that there is a reasonable probability that the result of the trial would have been different if the *484suppressed documents had been disclosed to the defense.” Strickler v. Greene, 527 U.S. 263, 289, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999) (internal quotation marks omitted).
Similarly, we are unpersuaded by appellant’s argument that his rights were violated when the government failed to disclose until just before trial evidence that a government agent had once mistaken appellants’s co-defendant for appellant. Appellant has again failed to demonstrate the necessary prejudice.
For the foregoing reasons, the order of the District Court is hereby AFFIRMED.
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PER CURIAM:
Demetria Nicole Williams, appointed counsel for Russell Glenn Malone in this appeal from the district court’s denial of Malone’s motion to reduce his sentence under 18 U.S.C. § 3582(c)(2), has moved to withdraw from further representation of the appellant and filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Our independent review of the entire record reveals that counsel’s assessment of the *401relative merit of the appeal is correct. Because independent examination of the entire record reveals no arguable issues of merit, counsel’s motion to withdraw is GRANTED, and the district court’s denial of Malone’s § 3582(c)(2) motion is AFFIRMED.
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PER CURIAM:
Giles Jones, appointed counsel for Jose Martinez Chavez in this direct criminal appeal, has moved to withdraw from further representation of the appellant and filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Because independent examination of the entire record reveals no arguable issues of merit, counsel’s motion to withdraw is GRANTED, and Chavez’s *422convictions and sentences are AF' FIRMED.
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PER CURIAM:
Monique A. Brochu, appointed counsel for Rosa Serrano, has moved to withdraw from further representation of the appellant, because, in her opinion, the appeal is without merit. Counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Our independent review of the entire record reveals that counsel’s assessment of the relative merit of the appeal is correct. Because independent examination of the entire record reveals no arguable issues of merit, counsel’s motion to withdraw is GRANTED, and Serrano’s conviction and sentence are AFFIRMED.
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Judgment
PER CURIAM.
This CAUSE having been heard and considered, it is
ORDERED and ADJUDGED:
AFFIRMED. See Fed. Cir. R. 36.
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JUDGMENT
This appeal from a judgment of the United States District Court for the District of Columbia was presented to the court and briefed by counsel. The court has accorded the issues full consideration and has determined they do not warrant a published opinion. See D.C.Cir. Rule 36(b). It is
ORDERED and ADJUDGED that the judgment of the district court be affirmed. The appellant has not identified any reversible errors in the district court’s decision. Senior Circuit Judge WILLIAMS appends a concurring statement.
Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after the resolution of any timely petition for rehearing or rehearing en banc. See Fed. R.App. P. 41(b); D.C.Cir. Rule 41.
APPENDIX
CONCURRING STATEMENT OF SENIOR CIRCUIT JUDGE WILLIAMS.
On March 11, 2008 Erik Donaire Con-stanza Bran pled guilty to conspiring to distribute five or more kilograms of cocaine, knowing that it would have been unlawfully imported into the United States, in violation of 21 U.S.C. §§ 959, 960 and 963. At the plea hearing, Bran and the government jointly submitted a plea agreement stating that “[t]he parties agree[d] that the Defendant will receive a sentence of confinement of 144 months (12 years) in accordance with Federal Rule of Criminal Procedure 11(c)(1)(C).” The agreement also allowed the “United States, within its sole discretion, [to] file a motion to reduce the Defendant’s sentence under Section 5K1.1 of the U.S.S.G. and/or Rule 35 of the Federal Rules of Criminal Procedure.” Thus the plea agreement effectively provided for a sentence that ranged between 144 and, subject to the prosecutor’s and court’s discretion, 0 months. The district court explained that at the sentencing hearing it would consider whether to accept the plea agreement.
After the court accepted the plea (subject to defendant’s right to withdraw from the plea in the event that the court later rejected the plea agreement, see Federal Rule of Criminal Procedure 11(c)(5)), but before the sentencing hearing, Bran filed a motion seeking to withdraw from the plea agreement. At the sentencing hearing, *447the district court denied that motion, accepted the plea agreement, and sentenced Bran to 144 months in accordance with the agreement.
Bran appealed, arguing that it was improper for the district court to apply the “fair and just reason” standard stated in Rule 11(d)(2)(B), as that rule governs the withdrawal of pleas, whereas his motion sought to withdraw only the plea agreement. When applying the fair and just reason standard to a defendant’s motion to withdraw a plea, courts consider three factors: “(1) whether the defendant has asserted a viable claim of innocence; (2) whether the delay between the guilty plea and motion to withdraw has substantially prejudiced the government’s ability to prosecute the case; and (3) whether the guilty plea was somehow tainted.” United States v. West, 392 F.3d 450, 455 (D.C.Cir.2004). The last of these three factors is the most important. Id.
Bran does not provide a reason for applying a different standard, though he does suggest a basis for giving the latitudinarian “fair and just” criterion a somewhat different content. Citing United States v. Lopez, 385 F.3d 245 (2d Cir.2004), he argues that the first and third of the standard factors “don’t readily apply in the context of a withdrawal from the agreement” and that the government would not be prejudiced by his withdrawal from the agreement. See id. at 253-54. This contention’s premise, that the plea and plea agreement are completely separable, is inconsistent with United States v. Standiford, 148 F.3d 864, 867-68 (7th Cir.1998). Standiford holds that they are not, so that to withdraw from the agreement the defendant must satisfy the “fair and just” standards explicitly governing the right to withdraw from the plea itself.
The Lopez decision considered an effort by the defendant to withdraw from a plea agreement made under Rule 11(c)(1)(B), a type of agreement evidently not under consideration in Standiford. It first held that such an agreement could be withdrawn with no impact on the plea itself. Under Rule 11 such an agreement involves no more than a government recommendation of a sentence (or agreement not to oppose a sentence), and the court held that the plea was thus “wholly independent of the court’s acceptance of the recommendations.” 385 F.3d at 251. It followed that the defendant could similarly withdraw from the agreement with no consequences for the plea itself. Id. Lopez did not explain why the court’s acceptance or rejection of a Rule 11(c)(1)(B) recommendation was equivalent to accepting or rejecting the plea agreement. Compare Rule 11(c)(3)(A) (providing for the court’s acceptance or rejection of a plea agreement under Rule 11(c)(1)(A) or 11(c)(1)(C)) with Rule 11(c)(3)(B) (providing that with a plea agreement under Rule 11(c)(1)(B) the court is to advise defendant that he or she has no right to withdraw the plea if the court does not follow the recommendation or request).
Lopez’s reason for delinking the plea and plea agreement is obviously inapplicable here. Bran’s plea was under Rule 11(c)(1)(C), so that court rejection of the agreement would give Bran a right to withdraw his plea. See Rule 11(c)(5). The holding of Lopez, therefore, provides no reason to separate withdrawal from Bran’s plea agreement from withdrawal from his plea. (The Lopez court suggested in dictum that agreements under subsections (A) and (C) of Rule 11(c)(1) might also be defeasible separately from the plea, but without explanation of what would prevent the defendant from exercising his right under Rule 11(c)(5) to withdraw from *448a plea if the associated plea agreement ceased to have effect. See 385 F.3d at 251-52 n. 13.)
The government, however, does not rely on the different character of the plea in Lopez. Rather, it points out that that court, though finding that the “just and fair reason” standard did not directly apply (as it governs pleas), nonetheless ruled that the distinction did “not prevent us from borrowing the ‘fair and just reason’ requirement for use in this situation.” 385 F.3d at 253.
One may assume in Bran’s favor that Rule 11 allows a party to withdraw from a Rule 11(c)(1)(C) agreement without withdrawing from the underlying plea. One may further assume in his favor the suitability of applying the framework he advocates — namely that of the Lopez court. But even under that framework the district court did not abuse its discretion in denying Bran’s motion. Bran argues that the government would not be prejudiced because he does not seek a new trial and the government could seek a higher sentence just as he could seek a lower sentence. [Blue 6-7]. But whether the government would be prejudiced is not the only inquiry required by Lopez. The Lopez court, adjusting the three-factor test to fit the plea agreement context, reformulated the question of whether the plea was tainted into an inquiry whether elements of the plea agreement other than defendant’s commission of the crime were somehow illegitimate, namely, “whether the defendant failed to understand, was misled about, or simply does not like certain subsidiary terms of the plea agreement (e.g., the length of the sentence),” id. at 255 (emphasis added), plainly regarding the latter as no basis for withdrawal from the agreement. Because Bran has offered no reason for the withdrawal from his plea agreement other than his dissatisfaction with the length of the sentence, the judgment of the district court deserves to be affirmed.
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JUDGMENT
This appeal was considered on the record from the agency and on the briefs and *449the oral arguments of the parties. Although the issues presented occasion no need for a published opinion, they have been accorded full consideration by the Court. See Fed. R.App. P. 36; D.C.Cir. Rule 36(d). For the reasons stated below, it is
ORDERED and ADJUDGED that the petition for review of the Order be denied.
First, the petitioner had fair notice of the EPA’s interpretations of 40 C.F.R. §§ 761.3, 761.20, 761.65, and 761.72. The “most natural” reading of the text of each of those regulations, along with the related provisions in the Federal Register, provided such notice. See NetworkIP, LLC v. FCC, 548 F.3d 116, 123 (D.C.Cir.2008).
Second, the petitioner has not met the “demanding” standard for making out a claim either of selective or of vindictive prosecution. See, e.g., United States v. Armstrong, 517 U.S. 456, 463, 116 S.Ct. 1480, 134 L.Ed.2d 687 (1996). Regardless whether EPS and G & S were similarly situated, EPS has not shown the EPA lacked a rational basis for bringing an enforcement action against EPS but not against G & S, see 3883 Conn. LLC v. District of Columbia, 336 F.3d 1068, 1075 (D.C.Cir.2003), or that the EPA had an improper motive, such as suppressing the petitioner’s speech about G & S, see United States v. Mangieri, 694 F.2d 1270, 1273 (D.C.Cir.1982). Nor has EPS shown even a “reasonable likelihood of vindictiveness” on the part of the EPA. See Maddox v. Elzie, 238 F.3d 437, 446 (D.C.Cir.2001) (citing United States v. Goodwin, 457 U.S. 368, 373, 102 S.Ct. 2485, 73 L.Ed.2d 74 (1982)).
Third, the conclusion of the Environmental Appeals Board that EPS was not acting as a “transfer facility” for the capacitors it was storing on July 9, 1999, see 40 C.F.R. § 761.3, was neither arbitrary nor capricious. Nor was the penalty of $133,100 imposed by the Board for EPS’s three violations of the Toxic Substances Control Act either “unwarranted in law” or “without justification in fact.” Pharaon v. Bd. of Governors, 135 F.3d 148, 155 (D.C.Cir.1998) (internal quotation marks omitted).
The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or petition for rehearing en banc. See Fed. R.App. P. 41(b); D.C.Cir. Rule 41.
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*467SUMMARY ORDER
Petitioners’ counsel seeks review of the lower court’s fee award in connection with a settlement following a Fair Labor Standards Act suit brought by current and former employees of SGS Control Services, Inc. and affiliated companies. Respondents express no view with respect to the arguments on appeal. We assume the parties’ familiarity with the facts, procedural context, and specification of appellate issues.
We review the District Court’s fee award under a deferential abuse of discretion standard. Goldberger v. Integrated Res., Inc., 209 F.3d 43, 47-48 (2d Cir.2000). “A district court ‘abuses’ or ‘exceeds’ the discretion accorded to it when (1) its decision rests on an error of law (such as application of the wrong legal principle) or a clearly erroneous factual finding, or (2) its decision — though not necessarily the product of a legal error or a clearly erroneous factual finding — cannot be located within the range of permissible decisions.” Zervos v. Verizon N.Y., Inc., 252 F.3d 163, 169 (2d Cir.2001) (footnotes omitted). It merits underscoring that “ ‘abuse of discretion’ — already one of the most deferential standards of review — takes on special significance when reviewing fee decisions.” Goldberger, 209 F.3d at 47. “[T]he district court, which is intimately familiar with the nuances of the case, is in a far better position to make [such] decisions than is an appellate court, which must work from a cold record.” In re Bolar Pharm. Co., Inc., Sec. Litig., 966 F.2d 731, 732 (2d Cir.1992) (per curiam).
After careful review of the District Court’s thorough and well-reasoned Decision and Order and Order denying Petitioners’ Motion for Reconsideration, we hold that there is no basis to find that the District Court exceeded the bounds of its discretion in determining the appropriate percentage award in this case. Petitioners base their arguments before this Court on the grounds that other cases have been decided differently. However, they have not pointed to anything in the record to suggest that the District Court abused its ample discretion in deciding the case before it or that its common fund fee award of 19% “cannot be located within the range of permissible decisions.” Zervos, 252 F.3d at 169. Nor are we persuaded that either Trustees v. Greenough, 105 U.S. 527, 26 L.Ed. 1157 (1881), or Cent. R.R. & Banking Co. v. Pettus, 113 U.S. 116, 5 S.Ct. 387, 28 L.Ed. 915 (1885), compels a contrary result.
Further, the District Court’s decision to exclude the $674,320 in prior payments is firmly rooted in the Settlement Agreement, which contemplates that attorneys’ fees will be based on a percentage of the “Settlement Payment,” which is defined as “the $7,250,000.00 payment plus accrued interest thereon,” and expressly does not include the earlier payments. Thus, we find no abuse of discretion in the District Court’s exclusion of this amount from the fee base. We remand, however, for the District Court to reconsider and, if adhered to, to explain its parallel decision to exclude the interest accrued on the principal $7,250,000 settlement from the fee base, given that this amount is specifically included as part of the “Settlement Payment,” from which fees are to be awarded.
Accordingly, the order of the district court is AFFIRMED as to the common fund fee percentage and the exclusion of the prior payments and REMANDED for an explanation into the exclusion of the accrued interest.
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SUMMARY ORDER
Plaintiff Daniel Duviella appeals from an award of summary judgment in favor of defendant JetBlue Airways Corporation (“JetBlue”) on his claim that JetBlue failed to promote him and later discharged him because of his age and race in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq., and various state and local laws. We review a grant of summary judgment de novo, viewing the facts in the light most favorable to the non-moving party. See Havey v. Homebound Mortgage, Inc., 547 F.3d 158, 163 (2d Cir.2008). While we will not uphold an award of summary judgment in favor of the defendant if the evidence is sufficient to permit a reasonable jury to find for the plaintiff, the plaintiff must point to more than a “scintilla” of evidence in support of his position to defeat summary judgment. Id. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)) (internal quotation marks omitted). In applying these principles to this appeal, we assume the parties’ familiarity with the facts and the record of prior proceedings, which we reference only as necessary to explain our decision.
We affirm for substantially the reasons stated in the district court’s thorough and well-reasoned opinion. See Duviella v. JetBlue Airways Corp., No. 04 Civ. 5063, 2008 WL 1995449 (E.D.N.Y. May 6, 2008). We write briefly to explain our independent determination that Duviella has identified no evidence that would permit a reasonable jury to conclude that JetBlue was motivated by discrimination either when it declined to promote him or when it discharged him.
First, in claiming discriminatory termination, Duviella challenges the process used by JetBlue to investigate sexual harassment allegations against him, and he disputes the accuracy of the conclusions reached. “In a discrimination case, however, we are decidedly not interested in the truth of the allegations against plaintiff. We are interested in what ‘motivated the employer.’ ” McPherson v. New York City Dep’t of Educ., 457 F.3d 211, 216 (2d Cir.2006) (quoting United States Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 716, 103 S.Ct. 1478, 75 L.Ed.2d 403 (1983) (emphasis omitted)). Duviella has not adduced any evidence tending to demonstrate that JetBlue’s procedures or sanctions were influenced by his age or race. This is fatal to his discharge claim. See, e.g., Graham v. Long Island, R.R., 230 F.3d 34, 44 (2d Cir.2000) (holding that even if plaintiff could demonstrate that failed drug test proffered by defendant as ground for dismissal was in error, that showing would not demonstrate that reliance on test was pretext for discrimination); Brewer v. Quaker State Oil Refining Corp., 72 F.3d 326, 331 (3d Cir.1995) (“[T]he factual dispute at issue is whether a discriminatory animus motivated the employer, not whether *478the employer is wise, shrewd, prudent, or competent.” (internal quotation marks and citation omitted)). Indeed, Duviella has not identified any evidence indicating that the actions of either Julia Gomez, who investigated the harassment claims and recommended termination, or Barbara Shea, who made the ultimate termination decision, were motivated by Du-viella’s age or race. In Gomez’s case, the only record evidence indicates that she was unaware of that information. See Woodman v. WWOR-TV, Inc., 411 F.3d 69, 87 (2d Cir.2005) (holding that, to defeat summary judgment, plaintiff “was obliged to offer evidence indicating that persons who actually participated in her termination decision had ... knowledge” of her protected characteristics).
Second, although Duviella identified one person of a different race who purportedly was (1) disciplined less harshly for harassing conduct, and (2) investigated using different procedures, he failed to adduce evidence demonstrating that he and his comparators were similarly situated with respect to the harassment charged. If anything, the evidence indicates that Duviella was accused of more egregious conduct. Such a record cannot support an inference of discriminatory motive. See Mandell v. County of Suffolk, 316 F.3d 368, 379 (2d Cir.2003) (“A plaintiff relying on disparate treatment evidence must show she was similarly situated in all material respects to the individuals with whom she seeks to compare herself.” (internal quotation marks and citation omitted)).
Third, with respect to Duviella’s failure-to-promote claims, Duviella has likewise offered no evidence tending to show that the relevant actors — Laura Ko-nopka, who denied his June 2003 promotion application, and Salman Khan, who allegedly lied to him about the opportunity to apply for certain positions in August 2003 — were motivated by prohibited factors.1 Duviella conceded at his deposition that he had “no facts” to support his claims regarding Konopka’s decisionmak-ing, Duviella Dep. at 73, and he points to nothing more than a bare allegation that Khan’s actions were improperly motivated, see Appellant’s Br. at 19 (stating only that Duviella “alleges this action by Khan was deliberate and based on [Duviella’s] age and race”). Mere allegations are insufficient to defeat summary judgment. See Fed.R.Civ.P. 56(e); see also Holcomb v. Iona Coll., 521 F.3d 130, 138 (2d Cir.2008) (noting that plaintiff bears “ ‘ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against’ ” him (quoting Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981))). Moreover, the fact that the promotions in question were given to younger people of a different race is not sufficient, standing alone, to allow Duviella to carry his ultimate burden of proving discrimination. See Brown v. Henderson, 257 F.3d 246, 253-54 (2d Cir.2001) (observing that “what matters in the end is not how the employer treated other employees” who do not share plaintiffs characteristics, “but how the employer would have treated the plaintiff’ had he not possessed those characteristics (emphasis omitted)).
For the foregoing reasons, the judgment of the district court is AFFIRMED.
. Duviella’s appellate brief does not challenge the district court's grant of summary judgment on his claim that JetBlue discriminated against him in cancelling his October 2003 promotion interview. We deem any such challenge to be waived. See Norton v. Sam's Club, 145 F.3d 114, 117 (2d Cir.1998).
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SUMMARY ORDER
Appellant Darwin J. Fifield, Sr., pro se, appeals the district court’s dismissal, on defendants’ motion for summary judgment, of Fifield’s 42 U.S.C. § 1983 claim of excessive force, and an earlier order dismissing his § 1983 claim of unlawful arrest.1 We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.
To establish a claim pursuant to 42 U.S.C. § 1983, a plaintiff must show that the defendants, acting under color of state law, deprived him of a constitutional right. E.g., Rodriguez v. Phillips, 66 F.3d 470, 473 (2d Cir.1995). Fifield alleges that defendants violated his Fourth Amendment rights by entering his home without a warrant, searching and seizing items in his home, and arresting him. See Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). Fifield further alleges that defendants used excessive force during the arrest.
Under Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), a § 1983 suit for damages that “would necessarily imply the invalidity of [the plaintiffs] conviction or sentence” is not cognizable, unless the plaintiff can show that the conviction or sentence has been “reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court’s issuance of a writ of habeas corpus.” Id. at 487, 114 S.Ct. 2364. Because Fifield provided no indication that his conviction had been in any way invalidated, the district court dismissed all of Fifield’s claims except his claim that the officers had used excessive force.
However, Fourth Amendment claims for unlawful arrest, such as Fifield alleges, do not ordinarily fall within the *481Heck rule, since a finding for the plaintiff would not necessarily “demonstrate the invalidity of any outstanding criminal judgment against the plaintiff,” id., at least unless the conviction was dependent on evidence obtained as a result of the arrest. See Covington v. City of New York, 171 F.3d 117, 123 (2d Cir.1999). Indeed, Heck itself noted that “[bjecause of doctrines like independent source and inevitable discovery,” a § 1983 “suit for damages attributable to an allegedly unreasonable search may lie even if the challenged search produced evidence that was introduced in a state criminal trial resulting in the § 1983 plaintiffs still-outstanding conviction.” Heck, 512 U.S. at 487 n. 7, 114 S.Ct. 2364. Similarly, a finding that an arrest was made without probable cause, or that a warrantless entry into the home was made to effect an arrest, would not necessarily call into question the validity of a plaintiffs eventual conviction unless the evidence underlying the conviction was the fruit of such unlawful actions.
Accordingly, the district court erred in dismissing this claim. Because the factual record is insufficient to determine whether anything obtained as a result of the allegedly unlawful arrest was essential to Fi-field’s subsequent conviction, the matter must be remanded to the district court for further development of the factual record as to Heck’s applicability. See Covington, 171 F.3d at 123 (“In the present case, we are unable to determine whether success on [plaintiffs] Section 1983 false arrest claim would necessarily imply the invalidity of a possible conviction.... Accordingly, we remand the case to the district court to make this determination.”).
We affirm, however, the district court’s grant of summary judgment to defendants on Fifield’s excessive force claim. The Fourth Amendment protects individuals from a law enforcement officer’s use of excessive force during an arrest. See Jones v. Parmley, 465 F.3d 46, 61 (2d Cir.2006). Courts must examine whether the use of force was objectively unreasonable in light of the facts and circumstances confronting the officers and should consider the severity of the underlying crime, whether the suspect posed an immediate threat to the safety of the officers or others, or whether the suspect actively resisted or evaded arrest. See Graham v. Connor, 490 U.S. 386, 396-97, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989).
Here, the undisputed facts showed that, at most, defendants took hold of Fifield’s arms, placed them behind his back, and handcuffed him. Fifield did not allege that defendants used any other force or made other abusive physical contact. Moreover, the district court properly found that defendants were investigating serious crimes, and that they knew from previous contact with Fifield that he kept weapons in his home and had previously beaten and threatened to kill one of the defendants. Accordingly, the district court properly granted summary judgment on Fifield’s excessive force claim.
We have reviewed Fifield’s remaining arguments and find them to be without merit.
For the foregoing reasons, the portion of the district court’s judgment dismissing Fifield’s false arrest claim is hereby VACATED and the matter is REMANDED to the district court for further proceedings consistent with this order. In all other respects, the district court’s judgment is AFFIRMED.
. To the extent it could be argued that we lack jurisdiction to review the dismissal of Fifield’s false arrest claim because Fifield’s notice of appeal lists only the order granting summary judgment to defendants and does not explicitly specify the earlier order dismissing the false arrest claim, we reject that argument. "We generally 'interpret an appeal from a specific order disposing of the case as an appeal from the final judgment, which incorporates all previous interlocutory judgments in that case and permits their review on appeal.' ” City of New York v. Smokes-Spirits.com, Inc., 541 F.3d 425, 453 (2d Cir.2008), quoting Anobile v. Pelligrino, 303 F.3d 107, 115 (2d Cir.2002). Accordingly, we have jurisdiction to address the dismissal of the false arrest claim.
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SUMMARY ORDER
Henry Ikezi appeals from his conviction for conspiring to export stolen vehicles in violation of 18 U.S.C. § 371 after a jury trial before Judge Block. We assume the parties’ familiarity with the facts and various proceedings in this court and the district court.
Appellant argues that: (i) the admission of certain videotapes into evidence was error; (ii) there was insufficient evidence that he was a member of a conspiracy to export stolen cars; and (iii) the government violated his due process rights by turning over relevant material at the last moment before trial. We affirm.
Contrary to appellant’s contentions, the district court did not abuse its discretion, see United States v. Szur, 289 F.3d 200, 217 (2d Cir.2002), by admitting the surveillance videotapes of the meetings between appellant and his alleged co-conspirators. We have previously stated that Fed.R.Evid. 901 is satisfied “if sufficient proof has been introduced so that a reasonable juror could find in favor of authenticity or identification.” United States v. Dhinsa, 243 F.3d 635, 658 (2d Cir.2001) (internal quotation marks omitted). Rule 901(b)(9) requires “[ejvidence describing a process or system used to produce a result and showing that the process or system produces an accurate result.” Fed.R.Evid. 901(b)(9). The government produced evidence that agents set up the equipment, tested it and verified the nature of the taped meeting with the informant. This was sufficient.
Appellant argues that there was legally insufficient evidence of any conspiracy or of a conspiracy to export stolen vehicles. Viewing the evidence, including the videotapes, in the light most favorable to the prosecution, a rational trier of fact could have concluded that the existence of a conspiracy was proven beyond a reasonable doubt. See United States v. Jones, 393 F.3d 107, 111 (2d Cir.2004). Indeed, at one videotaped meeting, appellant actively engaged in the meeting by, among other things, viewing the bill of lading and paying the freight shipper. After viewing the videotapes, we also conclude that there was introduced sufficient evidence from which a reasonable jury could conclude that appellant knew that the conspiracy was to export stolen vehicles.
Appellant argues for the first time in his reply brief that he should be acquitted of the conspiracy conviction because he was acquitted on the substantive charge of exporting stolen vehicles. Because this argument was not raised in appellant’s opening brief, it has been waived. See Cantor Fitzgerald, Inc. v. Lutnick, 313 F.3d 704, 711 n. 3 (2d Cir.2002).
We are also unpersuaded by appellant’s argument that the government violated his rights under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). Appellant has not shown “that there is a reasonable probability that the result of the trial would have been different if the *484suppressed documents had been disclosed to the defense.” Strickler v. Greene, 527 U.S. 263, 289, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999) (internal quotation marks omitted).
Similarly, we are unpersuaded by appellant’s argument that his rights were violated when the government failed to disclose until just before trial evidence that a government agent had once mistaken appellants’s co-defendant for appellant. Appellant has again failed to demonstrate the necessary prejudice.
For the foregoing reasons, the order of the District Court is hereby AFFIRMED.
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SUMMARY ORDER
Qemal Xharo, a native and citizen of Albania, seeks review of a November 24, 2008, order of the BIA denying his motion to reopen. In re Qemal Xharo, No. A078 206 053 (B.I.A. Nov. 24, 2008). We assume the parties’ familiarity with the underlying facts and procedural history of this case.
We review the BIA’s denial of a motion to reopen for abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir.2006). An alien may only file one motion to reopen and must do so within 90 days of the final administrative decision. 8 C.F.R. § 1003.2(c)(2). However, there is no time or numerical limitation where the alien establishes materially “changed circumstances arising in the country of nationality.” 8 C.F.R. § 1003.2(c)(3)(h). Additionally, in an untimely motion to reopen based on changed country conditions, the movant must also demonstrate prima facie eligibility for relief. See INS v. Abudu, 485 U.S. 94, 104-05, 108 S.Ct. 904, 99 L.Ed.2d 90 (1988). Here, the BIA did not abuse its discretion in denying Xharo’s motion to reopen, which was indisputably untimely. See 8 C.F.R. § 1003.2(c)(2). Xharo argues, however, that he met an exception to the time limit by establishing changed country conditions in Albania. In addition, Xharo asserts that such new evidence demonstrates his prima facie eligibility for asylum.
The BIA did not abuse its discretion in finding that Xharo failed to establish pri-ma facie eligibility for the underlying relief he sought based on his political opinion where the agency had previously found that same claim not credible. See Poradisova v. Gonzales, 420 F.3d 70, 78 (2d Cir.2005). In his motion, Xharo asserted that the evidence he submitted corroborated his claim that he experienced persecution on account of his support of the Albanian Democratic Party. However, we have held that the BIA may deny a motion to reopen if it fails to overcome a prior adverse credibility determination. Paul v. Gonzales, 444 F.3d 148, 155 n. 5 (2d Cir.2006); see also Kaur v. BIA, 413 F.3d 232, *495234 (2d Cir.2005) (per curiam); see also Qin Wen Zheng v. Gonzales, 500 F.3d 143, 147-48 (2d Cir.2007). Thus, we find no abuse of discretion in the BIA’s denial of Xharo’s motion to reopen because it was based on the same claim of political persecution the agency previously found not credible.
For the foregoing reasons, the petition for review is DENIED. Having completed our review, we DISMISS the petitioner’s pending motion for a stay of removal as moot.
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SUMMARY ORDER
Mamadou Cisse, a native and citizen of Cote d’Ivoire, seeks review of a September 30, 2008 order of the BIA, affirming, in part, the June 28, 2006 decision of Immigration Judge (“IJ”) Roxanne C. Hlady-lowycz, which denied his application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Mamadou Cisse, No. A097 486 222 (B.I.A. Sept. 30, 2008), aff'g in part No. A097 486 222 (Immig. Ct. N.Y. City June 28, 2006). We assume the parties’ familiarity with the underlying facts and procedural history of this case.
When the BIA affirms the IJ’s decision in some respects but not others, we review the IJ’s decision minus the arguments for denying relief that were rejected by the BIA. See Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir.2005). Here, because the BIA reversed the IJ’s pretermission of Cisse’s asylum application and the IJ’s adverse credibility finding, we review the BIA’s analysis of Cisse’s asylum claim and assume his credibility. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.2005). We review the agency’s factual findings under the substantial evidence standard. 8 U.S.C. § 1252(b)(4)(B); see also Corovic v. Mukasey, 519 F.3d 90, 95 (2d Cir.2008). We review de novo questions of law and the application of law to undisputed fact. Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.2008).
Substantial evidence supports the agency’s determination that Cisse failed to demonstrated that he suffered persecution or that he had a well-founded fear of persecution on account of his race, religion, nationality, political opinion, or membership in a particular social group. *497See 8 U.S.C. § 1101(a)(42); see also 8 C.F.R. § 1208.16(b)(1). As to past persecution, Cisse’s only claim before the agency was that in Cote d’Ivoire, members of the Akan ethnic group attacked him and fellow shop owners for refusing to give away their merchandise and that security forces arrested everyone involved in the ensuing fight, including Akans. Thus, the agency did not err in concluding that Cisse failed to demonstrate that he had suffered past persecution on account of a protected ground or that the government of Cote d’Ivoire was unwilling to protect him. See 8 C.F.R. § 1208.13(b)(1); see also Ivanishvili v. U.S. DOJ, 433 F.3d 332, 342 (2d Cir.2006). Likewise, the agency did not err in finding that Cisse failed to demonstrate a well-founded fear of persecution on account of his ethnicity or that the government was unwilling to protect him from such persecution because the country conditions evidence in the record does not demonstrate that ethnic Akans specifically target ethnic Dioulas and because Cisse admitted that security forces arrested ethnic Akans who had fought with him in the past. See 8 U.S.C. § 1252(b)(4)(B). Because the agency did not err in finding that Cisse failed to demonstrate that he had suffered past persecution or that he has a well-founded fear of future persecution on account of a protected ground, it reasonably denied his application for asylum and withholding of removal. See 8 U.S.C. § 1101(a)(42); see also 8 C.F.R. § 1208.16(b)(1).
Substantial evidence also supports the agency’s denial of Cisse’s application for CAT relief. The act of torture is defined by the immigration regulations and the CAT, in pertinent part, as “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person.” Pierre v. Gonzales, 502 F.3d 109, 114 (2d Cir.2007) (quoting 8 C.F.R. § 208.18(a)(1) and citing CAT art. 1). Plainly, torture can occur within the walls of a prison. However, beyond evidence of inhumane prison conditions, a CAT claimant must provide some evidence that the authorities acted with the specific intent to inflict severe physical or mental pain or suffering on those detained. See id. at 118-21. Cisse’s testimony that he and the other prisoners did not receive adequate food or clothing in prison did not demonstrate that prison officials intentionally inflicted severe pain or suffering on him as required to establish CAT eligibility. See id. at 114-21. To the contrary, Cisse explained that when a few of the prisoners detained with him died, security forces released him and the other remaining prisoners who had been involved in the fight. Moreover, the agency did not err in finding that Cisse failed to demonstrate a likelihood of torture because he provided only generalized country conditions evidence demonstrating that some prisoners are tortured, which is insufficient to establish that individuals in Cisse’s particular circumstances are more likely than not to be tortured in prison in Cote d’Ivoire. See id. at 118-21; see also Mu Xiang Lin v. U.S. Dep’t of Justice, 432 F.3d 156, 159-60 (2d Cir.2005). Accordingly, substantial evidence supports the agency’s finding that Cisse failed to establish his eligibility for CAT relief. Id.
For the foregoing reasons, the petition for review is DENIED. Having completed our review, we DISMISS the petitioner’s pending motion for a stay of removal as moot.
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SUMMARY ORDER
Petitioner Karen K. Gattegno seeks review of a May 29, 2008 decision of the ARB, affii'ming an administrative law judge’s (the “ALJ”) grant of the Respondents’ motion for summary judgment, which resulted in the dismissal of her complaint alleging retaliation under the Sar-banes-Oxley Act, 18 U.S.C. § 1514A. We assume the parties’ familiarity with the underlying facts and procedural history of the case.
We review a petition of review from agency decisions regarding claims brought under the Sarbanes-Oxley Act pursuant to the rules and procedures set forth in the Administrative Procedure Act (the “APA”). See 18 U.S.C. § 1514A(b)(2)(A); 49 U.S.C. § 42121(b)(4)(A). Thus, we will uphold a decision by the ARB — which represents a final agency decision by the Department of Labor — if it is not “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A); see Green Island Power Auth. v. F.E.R.C., 577 F.3d 148, 158 (2d Cir.2009) (holding that review of an agency decision pursuant to the APA is subject to an abuse of discretion standard under 5 U.S.C. § 706); see also Welch v. Chao, 536 F.3d 269, 275-76 (4th Cir.2008) (ARB’s denial of complainant’s claims under Sar-banes-Oxley are reviewed under the APA for abuse of discretion). We consider, therefore, “whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment,” Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 378, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989), and we will set aside the agency determination only if we conclude that its decision “runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise,” LaFleur v. Whitman, 300 F.3d 256, 267 (2d Cir.2002) (citation omitted).
Pursuant to regulations promulgated by the Department of Labor, an ALJ may grant summary judgment to a party “if the pleadings, affidavits, material obtained by discovery or otherwise, or matters officially noticed show that there is no genuine issue as to any material fact.” 29 C.F.R. § 18.40(d). This standard is analogous to the rules governing motions for summary judgment in federal court. See Fed.R.Civ.P. 56; see also Puerto Rico Aqueduct & Sewer Auth. v. EPA, 35 F.3d 600, 607 (1st Cir.1994) (“[T]he concept of administrative summary judgment has been linked inextricably to *500Fed.R.Civ.P. 56.”). Moreover, to state a ;prima facie case under the Sarbanes-Ox-ley Act, an employee must show that: (1) she engaged in a protected activity or conduct; (2) the employer knew or suspected, actually or constructively, that she engaged in the protected activity; (3) she suffered an unfavorable personnel action; and (4) “[t]he circumstances were sufficient to raise the inference that the protected activity was a contributing factor in the unfavorable action.” 29 C.F.R. § 1980.104(b)(1). Here, the agency’s determination that Gattegno failed to satisfy the third prong of this test, and its consequent award of summary judgment, was not a clear error of judgment.
In her complaint, Gattegno identified two unfavorable personnel actions: (1) constructive discharge, and (2) damage to her professional reputation and future work prospects. As to the first claim, the agency’s determination, based on undisputed facts, that Gattegno had constructively resigned from Prospect Energy Corporation by accepting another position before the actions claimed to constitute a constructive termination, was well within the bounds of the agency’s expert discretion. As to the second claim, the agency did not clearly err in determining that Gattegno did not produce any specific evidence, apart from mere conelusory assertions, in support of her allegation that the February 2005 press release was more adverse to her future employment prospects than any of the company’s prior releases, which she conceded were not adverse, nor did she otherwise demonstrate that the February release constituted an unfavorable personnel action.
The agency’s grant of summary judgment and dismissal of Gattegno’s complaint was not an abuse of its discretion. We have considered all of Gattegno’s remaining arguments and have determined them to be without merit.
For the foregoing reasons, the petition for review is DENIED.
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SUMMARY ORDER
Petitioner Ai Jing Jiang, a native and citizen of the People’s Republic of China, seeks review of an April 7, 2009 order of the BIA affirming the July 10, 2007 decision of Immigration Judge (“IJ”) Annette S. Elstein, denying his application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Ai Jing Jiang, No. A099 023 605 (B.I.A. Apr. 7, 2009), aff'g No. A099 023 605 (Immig. Ct. N.Y. City July 10, 2007). We assume the parties’ familiarity with the underlying facts and procedural history of the case.
When the BIA adopts the decision of the IJ and supplements the IJ’s decision, this Court reviews the decision of the IJ as supplemented by the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.2005). We review the agency’s factual findings under the substantial evidence standard. 8 U.S.C. § 1252(b)(4)(B); see also Corovic v. Mukasey, 519 F.3d 90, 95 (2d Cir.2008). We review de novo questions of law and the application of law to undisputed fact. See Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.2008).
Even if we assume that Jiang was credible, the BIA did not err in finding that he failed to establish his eligibility for asylum and withholding of removal. In Shi Liang Lin v. U.S. Dep’t of Justice, this Court held that the definition of “refugee” under 8 U.S.C. § 1101(a)(42) does not ex*502tend automatically to the partners of individuals who have been forcibly sterilized or forced to have an abortion. 494 F.3d 296, 314 (2d Cir.2007); See also Matter of J-S-24 I. & N. Dec. 520 (A.G.2008). Rather, those persons may qualify for refugee status if they “can prove past persecution, or a fear of future persecution for ‘resistance’ that is directly related to [their] own opposition to a coercive family planning policy.” Shi Liang Lin, 494 F.3d at 313. Jiang testified that he was not present, and thus did not resist, when his wife was taken to the hospital for an abortion. Indeed, Jiang has never argued that he was persecuted or feared persecution based on his “other resistance.” Thus, the BIA properly determined that Jiang is not eligible for relief. See id. at 314; see also Gui Yin Liu v. INS, 508 F.3d 716, 723 (2d Cir.2007); Shu Wen Sun v. BIA, 510 F.3d 377, 381 (2d Cir.2007).
Jiang also argues that he demonstrated a well-founded fear of persecution and torture because the family planning board allegedly informed him that he had to be sterilized. The IJ discounted this testimony as “somewhat speculative” and noted that Jiang had submitted no materials supporting this claim. Moreover, his asylum application explained that he had been warned that “any further birth control violation would result in sterilization.” Jiang presented no basis for thinking that there would be “any further birth control violation,” thus rendering reasonable the IJ’s finding that his apprehension of sterilization was “somewhat speculative.”
Finally, there is no merit to Jiang’s argument that because Matter of J-S- was decided after the IJ’s decision, the BIA erred by not remanding the case. Rather, the BIA properly conducted de novo review in making the purely legal determination that Jiang was not entitled to relief based on the facts he had alleged. 8 C.F.R. § 1003.1(d)(3)(h).
Because Jiang was unable to show the objective likelihood of persecution needed to make out an asylum claim, he was necessarily unable to meet the higher standard required to succeed on a claim for withholding of removal or CAT relief. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.2006); Gomez v. INS, 947 F.2d 660, 665 (2d Cir.1991).
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2) and Second Circuit Local Rule 34(b).
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SUMMARY ORDER
Appellants Sayed Khalifa and Amany Corp. appeal from a grant of summary judgment and denial of their cross-motion, entered by the United States District Court for the Northern District of New York (McAvoy, J.) on January 9, 2008. We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.
Our previous opinion, Field Day LLC v. County of Suffolk, forecloses the challenges to the Coventry Mass Gathering Law. 463 F.3d 167 (2d Cir.2006). In Field Day, we upheld the constitutionality of a mass gathering law substantively identical to the one at issue in this case.
We have reviewed the remaining arguments, and find them to be without merit.
For the foregoing reasons, the judgment of the district court is AFFIRMED.
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SUMMARY ORDER
Plaintiff Kenneth Smith, pro se and incarcerated, appeals from two judgments, entered on April 22, 2008, and July 9, 2008, respectively, granting the unopposed motions for summary judgment of defendants, various New York State Department of Correctional Services (“DOCS”) employees and Westchester Medical Center (“WMC”), on his claims, inter alia, that the DOCS defendants denied him reasonable accommodations for his hearing loss in violation of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq., and the Rehabilitation Act of 1973, 29 U.S.C. § 794 et seq., and that WMC’s decision to treat his dislocated jaw with bilateral manipulation rather than an emi-nectomy rendered it liable for medical malpractice. Construing his notice of appeal liberally, as we must, see Boykin v. KeyCorp, 521 F.3d 202, 214 (2d Cir.2008), we also read Smith’s submission as appealing from the district court’s April 22, 2008 order denying his motion for relief from judgment under Fed.R.Civ.P. 60(b), and its November 19, 2008 order denying a related motion for reconsideration. We assume the parties’ familiarity with the facts and the record of prior proceedings, which we reference only as necessary to explain our decision to affirm.
1. Summary Judgment
We review the district court’s award of summary judgment de novo, see Dillon v. Marano, 497 F.3d 247, 251 (2d Cir.2007), and we will affirm only if the record evidence, construed in the light most favorable to Smith, shows no genuine issue of material fact and defendants’ entitlement to judgment as a matter of law, see Fed. *507R.Civ.P. 56(c); White River Amusement Pub, Inc. v. Town of Hartford, 481 F.3d 163, 167 (2d Cir.2007). To demonstrate an issue of material fact, Smith must point to more than a “scintilla” of evidence in support of his position. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); accord Havey v. Homebound Mortgage, Inc., 547 F.3d 158, 163 (2d Cir.2008).
a.Vital Notice
We must first determine whether Smith received proper notice of the nature and consequences of summary judgment under Vital v. Interfaith Medical Center, 168 F.3d 615, 620-21 (2d Cir.1999), as “[t]he failure to give actual notice to a pro se litigant of the consequences of not responding adequately to a summary judgment motion will usually constitute grounds for vacatur.” Jova v. Smith, 582 F.3d 410, 414 (2d Cir.2009). Here, the district court expressly found that both defendants’ motions for summary judgment “included an appropriate notice to pro se litigant pursuant to Local Civil Rule 56.2.” Smith v. Masterson, 538 F.Supp.2d 653, 656 (S.D.N.Y.2008). We identify no basis for concluding that this finding was clearly erroneous. See United States v. Rubenstein, 403 F.3d 93, 99 (2d Cir.2005) (reviewing factual findings for clear error); cf. Scott v. Real Estate Fin. Group, 183 F.3d 97, 101 (2d Cir.1999) (treating plaintiffs’ receipt of proper notice under state statute as question of fact). Accordingly, any challenge to Smith’s receipt of adequate notice of the nature and consequences of summary judgment is without merit.
b. The ADA and the Rehabilitation Act
Smith submits that the district court erred in concluding that the record raised no material fact as to his alleged hearing impairment, the basis for his disability claims under the ADA and the Rehabilitation Act. We disagree. The record indicates that Smith frequently complained of hearing loss, that subjective hearing tests, which can be manipulated by a test-taker, indicated hearing loss, and that one audiologist recommended that Smith be given bilateral hearing aids. But objective hearing tests, which measure physiological responses of the inner ear to noise and cannot be manipulated by a test-taker, consistently demonstrated that Smith was not hearing impaired and thus needed no special accommodation. The objective test results, including a November 15, 2005 Stenger test,1 the variation in Smith’s subjective tests, and observations of Smith engaging in conversational speech without the assistance of hearing aids, support the conclusions of a number of audiologists that Smith’s claimed hearing loss was feigned. Because both the ADA and the Rehabilitation Act require that an individual demonstrate a physical or mental impairment to be deemed to have a “disability,” see 29 U.S.C. § 705(20)(B); 42 U.S.C. § 12102(1), and because Smith failed to adduce sufficient evidence to permit a jury to make such a finding, the district court properly awarded the DOCS defendants summary judgment on these claims.
c. Medical Malpractice
Smith’s challenge to the district court’s award of summary judgment to WMC on his medical malpractice claims is also without merit. To establish a prima *508facie case of medical malpractice under New York law, a plaintiff must adduce expert opinion of a deviation from accepted standards of medical care proximately causing injury. See Hytko v. Hennessey, 62 A.D.3d 1081, 1083-84, 879 N.Y.S.2d 595, 598 (3d Dep’t 2009); see also Silts v. United States, 811 F.2d 736, 739 (2d Cir.1987). Expert testimony is required even when a medical malpractice action is based on lack of informed consent. See Gardner v. Wider, 32 A.D.3d 728, 730, 821 N.Y.S.2d 74, 76 (1st Dep’t 2006). Apart from his own conclusory allegations, Smith adduces no evidence — much less expert evidence— suggesting that WMC’s decision to treat his dislocated jaw with bilateral manipulation rather than an eminectomy constituted a departure from accepted standards of medical care, or that his consent to the bilateral manipulation was qualitatively insufficient. In view of WMC’s submission of expert opinion that its treatment of Smith fell within accepted standards, and that there was no medical basis for deeming that treatment the proximate cause of Smith’s alleged injuries, Smith has plainly failed to demonstrate the existence of any genuine issue of material fact rendering the award of summary judgment in this case inappropriate. See, e.g., Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 (1986).
2. Rule 60(b) Relief
Smith argues that the district court erred in denying his motion for relief pursuant to Fed.R.Civ.P. 60(b) and his subsequent motion for reconsideration of that denial in light of new evidence that he had recently been diagnosed with a hearing impairment, that DOCS had furnished him with hearing aids, and that he was scheduled to undergo jaw surgery. We review a district court’s denial of a motion for reconsideration for abuse of discretion, see Barcia v. Sitkin, 367 F.3d 87, 99 (2d Cir.2004), and we identify none in this case.
Under Rule 60, a court may relieve a party from a final judgment based on “newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b).” Fed.R.Civ.P. 60(b)(2). Here, however, because most of the evidence of Smith’s purportedly new diagnosis and his receipt of hearing aids was available to him at least several months prior to the district court’s publication of its March 2008 opinion, and in some cases at the time defendants initially served their motions on him, the evidence cannot be considered “new.” While some evidence of Smith’s alleged re-diagnosis postdates the March 2008 opinion, that evidence is irrelevant, as it does not establish that Smith suffered from.a hearing impairment during the time period alleged in his complaint.2
3. Conclusion
We have considered Smith’s remaining arguments and conclude that they are without merit. For the forgoing reasons, the district court’s order is AFFIRMED.
. The Stenger test is a hearing test designed to reveal malingering. Smith’s November 15, 2005 Stenger test results were positive.
. The evidence of Smith's planned jaw surgery is also irrelevant, as it in no way establishes that WMC’s decision to perform a bilateral manipulation contravened accepted standards of medical care.
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SUMMARY ORDER
Appellant Shawn Gaines, pro se, appeals the district court’s grant of the Defendants’ motions for summary judgment, dismissing his complaints filed in E.D.N.Y. Dkt. Nos. 04-cv-5238 and 06-cv-5867 against the N.Y.C. Transit Authority (“TA”) and the Transport Workers Union (“TWU”), respectively, alleging violations of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12112-12117. We assume the parties’ familiarity with the underlying facts, the procedural history of the cases, and the issues on appeal.
We review orders granting summary judgment de novo and focus on whether the district court properly concluded that there was no genuine issue as to any material fact and 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); Republic Nat’l Bank v. Delta Air Lines, 263 F.3d 42, 46 (2d Cir.2001); Allstate Ins. Co. v. Mazzola, 175 F.3d 255, 258 (2d Cir.1999). In determining whether there are genuine issues of material fact, we are “required to resolve all ambiguities and draw all permissible factual inferences in favor of the party against whom summary judgment is sought.” Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir.2003) (internal quotations omitted).
To establish a prima fade case of discrimination under the ADA, a plaintiff must show: (1) his employer is subject to the ADA; (2) he is disabled within the meaning of the ADA; (3) he is otherwise qualified to perform the essential functions of her job; and (4) he suffered an adverse employment action because of her disability. See Jacques v. DiMarzio, Inc., 386 F.3d 192, 198 (2d Cir.2004). Moreover, under the three-step burden-shifting framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), if the plaintiff sets forth a prima facie case of discrimination, the burden of production shifts to the employer to articulate a legitimate, non-discriminatory reason for its actions, and, to the extent that it succeeds in doing so, the plaintiff must then demonstrate that the proffered reason was merely a pretext for discrimination. See id.; Heyman v. Queens Village Committee for Mental Health, 198 F.3d 68, 72 (2d Cir.1999).
Here, the district court properly granted TA’s motion for summary judgment. Although Gaines successfully set forth a pri-ma facie case of discrimination, he failed to produce any evidence demonstrating that the October 2004 directive prohibiting “yard only” train operators from operating trains at the 239th Street Train Yard was motivated by anything other than legitimate, non-discriminatory safety concerns. Given our prior recognition that TA has a “statutory responsibility to operate the transit system for the safety of the public,” and that, pursuant to that duty, TA should be afforded “broad bounds” to determine the extent to which certain qualifications are necessary to the public interest, no reasonable jury could have found that TA’s operational change in policy was motivated by intentional discrimination. Shannon v. New York City Transit Authority, 332 F.3d 95, 103 (2d Cir.2003). Similarly, Gaines’s z’etaliation claim against TA also failed because he produced no evidence that the 2004 operational directive was animated by a retaliatory motive, given that the record showed the directive was moti*511vated by legitimate public safety concerns. Accordingly, Gaines’s claims against TA failed as a matter of law.
Additionally, the district court also properly granted TWU’s motion for summary judgment. To establish a prima facie case for retaliation, a plaintiff must demonstrate that he engaged in a protected activity of which the defendant was aware, and that he suffered an adverse employment action as a result of that activity; i.e., that “there was a causal connection between the protected activity and the adverse employment action.” Distasio v. Perkin Elmer Corp., 157 F.3d 55, 66 (2d Cir.1998). Here, although Gaines did engage in a protected activity by filing an Equal Employment Opportunity Commission (“EEOC”) charge against TA, see Johnson v. Palma, 931 F.2d 203, 207 (2d Cir.1991) (holding that the filing of a complaint against an employer constitutes a protected activity with respect to plaintiffs retaliation claim against a union), he failed to produce evidence that TWU took any adverse action against him, given that the delays in his arbitration proceedings were reasonable, see id. (“[A]n adverse employment action may be found where a plaintiff is deprived of the ability to expeditiously ascertain and enforce his rights under [a] collective bargaining agreement with his employer.”) (internal quotations omitted). Therefore, Gaines’s claims against TWU failed as a matter of law.
Accordingly, the district court properly granted TA’s and TWU’s motions for summary judgment, and we have considered all of Gaines’s remaining claims of error and determined them to be without merit.
For the foregoing reasons, the judgments of the district court are hereby AFFIRMED.
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SUMMARY ORDER
Appellant Charles Hecker appeals from the judgment of the district court granting summary judgment to Appellee Dwayne Montgomery on Appellant’s 42 U.S.C. § 1983 complaint. We assume the parties’ familiarity with the facts, proceedings below, and the issues on appeal.
We review the grant of 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. 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 resolve any ambiguities and draw permissible factual inferences in favor of the non-movant. Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir.2003). Despite this deference, a non-movant cannot defeat a motion for summary judgment merely through con-clusory statements or allegations. Davis v. New York, 316 F.3d 93, 100 (2d Cir.2002).
We affirm for substantially the same reasons stated by the magistrate judge in his well-reasoned report and recommendation.
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SUMMARY ORDER
Petitioners Saman, Namali, Savinda, Kevin, and Nethmi Randeniya,* citizens of Sri Lanka, seek review of a July 15, 2008 order of the BIA affirming the November 2, 2006 decision of Immigration Judge (“IJ”) Jeffery S. Chase denying Saman Randeniya’s application for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). In re Saman Randeniya, Nos. A099 320 086/087/088/089, 076 143 068 (B.I.A. July 15, 2008), aff'g Nos. A099 320 086/087/088/089, 076 143 068 (Immig. Ct. N.Y. City Nov. 2, 2006). We assume the parties’ familiarity with the underlying facts and procedural history of the case.
We previously denied the Government’s motion for summary disposition. That procedure is normally appropriate when a petition is subject to dismissal for lack of jurisdiction, improper venue, or untimeliness. Presenting substantive arguments on the merits of a petition for review by motion risks obliging two panels of this Court to consider the merits in those cases where the motion is denied and, in such circumstances, obliges the Government to brief both its motion and then the merits. Following our denial of summary disposition, the Government submitted its brief on the merits.
Petitioner has not shown that the agency erred in finding that he failed to establish that any past harm he suffered bore a nexus to a protected ground. 8 U.S.C. § 1101(a)(42). As amended by the REAL ID Act, Title 8, Section 1158(b)(l)(B)(i) of the U.S.Code provides that an asylum “applicant must establish that race, religion, nationality, membership in a particular social group, or political opinion was or will *514be at least one central reason for persecuting the applicant.” The agency determined that Petitioner failed to establish eligibility for asylum or withholding of removal based on his mistreatment by the Liberation Tigers of Tamil Eelam (“LTTE”) — either in Italy or Sri Lanka— because there was no evidence this mistreatment was on account of a protected ground. Rather, the agency reasonably concluded that any mistreatment Petitioner suffered was on account of the LTTE’s belief that he had stolen money from the group.
Petitioner asserts that the agency erred by failing to consider his imputed political opinion claim; however, this argument is plainly without merit. Although asylum applicants may be granted relief on an imputed political opinion theory, see Koudriachova v. Gonzales, 490 F.3d 255, 264 (2d Cir.2007), here there is no evidence that the LTTE thought that Petitioner opposed that group because of his political beliefs. Indeed, Petitioner’s account of the threats he and his family received explicitly showed that the LTTE’s sole motivation was to pressure him to return the funds they believed he had stolen. See Yueqing Zhang, 426 F.3d at 545 (“[Applicant must also show, through direct or circumstantial evidence, that the persecutor’s motive to persecute arises from the applicant’s political belief.”). Thus, Petitioner’s argument that the agency failed to consider evidence concerning the Italian authorities’ ability to protect him is irrelevant because he failed to establish that any harm the LTTE might inflict would be on account of a protected ground. See 8 U.S.C. § 1101(a)(42); 8 C.F.R. § 1208.16(b)(1); Ramsameaehire v. Ashcroft, 357 F.3d 169, 178 (2d Cir.2004).
Petitioner also argues that the BIA erred by denying him withholding of removal to Sri Lanka, given that his mistreatment by the Sri Lankan army was on account of a protected ground because the military erroneously believed he was an LTTE supporter. However, this assertion ignores the fact that the IJ found Petitioner’s testimony concerning his interrogation and beating by the military not credible, a finding that Petitioner did not challenge in his appeal to the BIA. Having thus failed to challenge the agency’s credibility determination, Petitioner has abandoned that claim.1 See Gui Yin Liu v. INS, 508 F.3d 716, 723 n. 6 (2d Cir.2007) (noting that “because Liu failed to argue before either this Court or the BIA his claims for relief based on the illegal nature of his departure from China, we consider that basis for relief abandoned” (citing Yueqing Zhang v. Gonzales, 426 F.3d 540, 545 n. 7 (2d Cir.2005))).
Petitioner’s remaining arguments are without merit. Nothing in the record compels the conclusion that, as Petitioner argues, the agency failed to consider the documentary evidence he submitted. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 338 n. 17 (2d Cir.2006) (“[W]e presume that an IJ has taken into account all of the evidence otherwise.”). Insofar as Petitioner challenges the weight afforded to that evidence, the record reveals no error. See id. at 342 (citing Asociacion de Compositores y Editores de Musica Latino Americana v. Copyright Royalty Tribunal, 854 F.2d 10, 13 (2d Cir.1988) (“[W]e must review a challenge to the Tribunal’s evidentiary rulings with the same deference, for the type of proof that will be acceptable and the weight it should receive lie largely in the discretion of the [Tribu*515nal].”)). Finally, because Petitioner did not challenge the IJ’s denial of his CAT claim before the BIA, and does not challenge the denial of that relief before this Court, that claim is abandoned. See Gui Yin Liu, 508 F.3d at 723 n. 6.
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
Only Saman Randeniya filed an application for asylum, withholding of removal, and relief under the Convention Against Torture ("CAT”). The remaining Petitioners — his family members — are listed as derivative applicants. Accordingly, all references to the Petitioner herein are to Saman Randeniya only.
. Even if Petitioner did not abandon that claim, any challenge to the agency’s credibility determination is without merit because Petitioner’s failure to mention his beating by the Sri Lankan military in his written application was a "self evident” inconsistency. See Xian Tuan Ye v. DHS, 446 F.3d 289, 295-96 (2d Cir.2006).
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SUMMARY ORDER
Roxanne Angela Isaacs, a native and citizen of Guyana, seeks review of a July 15, 2008, order of the BIA affirming the April 10, 2008, decision of Immigration Judge (“IJ”) Alan L. Page pretermitting her application for asylum and denying her applications for cancellation of removal, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Roxanne Angela Isaacs, No. A042 682 795 (B.I.A. July 15, 2008), aff'g No. A042 682 795 (Immig. Ct. N.Y. City Apr. 10, 2008). We assume the parties’ familiarity with the underlying facts and procedural history of the case.
When the BIA summarily affirms the decision of the IJ without issuing an opinion, see 8 C.F.R. § 1003.1(e)(4), we review the IJ’s decision as the final agency determination, see Shunfu Li v. Mukasey, 529 F.3d 141, 146 (2d Cir.2008). We review the agency’s factual findings under the substantial evidence standard. See 8 U.S.C. § 1252(b)(4)(B); see also Manzur v. U.S. Dep’t of Homeland Sec., 494 F.3d 281, 289 (2d Cir.2007). We review de novo questions of law and the application of law to undisputed fact. See Passi v. Mukasey, 535 F.3d 98, 101 (2d Cir.2008).
I. Asylum and Withholding of Removal
This Court lacks jurisdiction to review a final order of removal based on an aggravated felony conviction unless the petition raises a constitutional claim or a question of law. See 8 U.S.C. § 1252(a)(2)(C)-(D); Blake v. Gonzales, 481 F.3d 152, 155-56 (2d Cir.2007).
Even if we were to construe liberally Isaacs’s pro se argument that she has a well-founded fear to raise a question of law, see Weixel v. Board of Educ., 287 F.3d 138, 146 (2d Cir.2002) (construing pro se plaintiffs pleadings so as to raise “the strongest arguments that they suggest” (internal quotation marks omitted)), and even if we found that she had exhausted that argument in her pro se appeal to the BIA, see Steevenez v. Gonzales, 476 F.3d 114, 118 (2d Cir.2007) (per curiam) (“generously” construing petitioner’s pro se brief to the BIA), her claims for asylum and withholding of removal fail. The INA provides that an individual who has been convicted of an aggravated felony is ineligible for asylum. 8 U.S.C. § 1158(b)(2)(A)(ii) & (B)(i). The INA further allows the IJ to deny withholding of removal to an individual who has been convicted of a particularly serious crime. 8 U.S.C. § 1231(b)(3)(B)(ii). The IJ pretermitted Isaacs’s asylum application because of her “aggravated felony” conviction and denied her application for withholding of removal because he found that her conviction constituted a “particularly serious crime” under 8 U.S.C. § 1231(b)(3)(B)(ii). In her brief to this Court, Isaacs asserts that she has a well-founded fear of persecution in Guyana based on her membership in the particular social group of lesbians, but she *517does not challenge either of these disposi-tive findings. Accordingly, she cannot succeed on either her asylum or withholding of removal claim. 8 U.S.C. §§ 1158 (b) (2) (A) (ii) & (B)(i), 1231(b)(3)(B)(ii).
II. CAT Relief
Likewise construing Isaacs’s pro se brief broadly to find that her challenge to the IJ’s denial of CAT relief raises a question of law, we find that any such challenge fails. See Weixel, 287 F.3d at 145-46. We conclude that the IJ did not err in denying Isaacs’s application for CAT relief, as she failed to establish a likelihood that she will be tortured in Guyana. See Savchuck v. Mukasey, 518 F.3d 119, 123-24 (2d Cir.2008). As the IJ found, Isaacs may not establish a claim for CAT relief merely by stringing together a series of suppositions to show that it is more likely than not that torture will result where the evidence does not establish that each step in the hypothetical chain of events is more likely than not to happen. See In re J-F-F-, 23 I. & N. Dec. 912, 917-18 (AG 2006). Isaacs’s CAT claim hinges on a series of suppositions: that people would assume that she is a lesbian because of her appearance; that she would be arrested and detained by the Guyanese authorities because she is a lesbian; and that lesbians are tortured while in prison. However, the record evidence does not establish that each of these steps is likely to occur; thus, Isaacs’s CAT claim is too speculative to prevail. See Savchuck, 518 F.3d at 123-24; In re J-F-F-, 23 I. & N. Dec. at 917-18.
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Robert A. Cuffee appeals the district court’s order dismissing his 42 U.S.C. § 1983 (2006) civil rights action for failure to pay the partial filing fee. On appeal, we confine our review to the issues raised in the Appellant’s Brief, see 4th Cir. R. 34(b), and Cuffee’s brief alleges no error committed by the district court. We therefore find Cuffee has forfeited appellate review of that order. Accordingly, we affirm the district court’s order. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.
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SUMMARY ORDER
Qemal Xharo, a native and citizen of Albania, seeks review of a November 24, 2008, order of the BIA denying his motion to reopen. In re Qemal Xharo, No. A078 206 053 (B.I.A. Nov. 24, 2008). We assume the parties’ familiarity with the underlying facts and procedural history of this case.
We review the BIA’s denial of a motion to reopen for abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir.2006). An alien may only file one motion to reopen and must do so within 90 days of the final administrative decision. 8 C.F.R. § 1003.2(c)(2). However, there is no time or numerical limitation where the alien establishes materially “changed circumstances arising in the country of nationality.” 8 C.F.R. § 1003.2(c)(3)(h). Additionally, in an untimely motion to reopen based on changed country conditions, the movant must also demonstrate prima facie eligibility for relief. See INS v. Abudu, 485 U.S. 94, 104-05, 108 S.Ct. 904, 99 L.Ed.2d 90 (1988). Here, the BIA did not abuse its discretion in denying Xharo’s motion to reopen, which was indisputably untimely. See 8 C.F.R. § 1003.2(c)(2). Xharo argues, however, that he met an exception to the time limit by establishing changed country conditions in Albania. In addition, Xharo asserts that such new evidence demonstrates his prima facie eligibility for asylum.
The BIA did not abuse its discretion in finding that Xharo failed to establish pri-ma facie eligibility for the underlying relief he sought based on his political opinion where the agency had previously found that same claim not credible. See Poradisova v. Gonzales, 420 F.3d 70, 78 (2d Cir.2005). In his motion, Xharo asserted that the evidence he submitted corroborated his claim that he experienced persecution on account of his support of the Albanian Democratic Party. However, we have held that the BIA may deny a motion to reopen if it fails to overcome a prior adverse credibility determination. Paul v. Gonzales, 444 F.3d 148, 155 n. 5 (2d Cir.2006); see also Kaur v. BIA, 413 F.3d 232, *495234 (2d Cir.2005) (per curiam); see also Qin Wen Zheng v. Gonzales, 500 F.3d 143, 147-48 (2d Cir.2007). Thus, we find no abuse of discretion in the BIA’s denial of Xharo’s motion to reopen because it was based on the same claim of political persecution the agency previously found not credible.
For the foregoing reasons, the petition for review is DENIED. Having completed our review, we DISMISS the petitioner’s pending motion for a stay of removal as moot.
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SUMMARY ORDER
Petitioner Karen K. Gattegno seeks review of a May 29, 2008 decision of the ARB, affii'ming an administrative law judge’s (the “ALJ”) grant of the Respondents’ motion for summary judgment, which resulted in the dismissal of her complaint alleging retaliation under the Sar-banes-Oxley Act, 18 U.S.C. § 1514A. We assume the parties’ familiarity with the underlying facts and procedural history of the case.
We review a petition of review from agency decisions regarding claims brought under the Sarbanes-Oxley Act pursuant to the rules and procedures set forth in the Administrative Procedure Act (the “APA”). See 18 U.S.C. § 1514A(b)(2)(A); 49 U.S.C. § 42121(b)(4)(A). Thus, we will uphold a decision by the ARB — which represents a final agency decision by the Department of Labor — if it is not “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A); see Green Island Power Auth. v. F.E.R.C., 577 F.3d 148, 158 (2d Cir.2009) (holding that review of an agency decision pursuant to the APA is subject to an abuse of discretion standard under 5 U.S.C. § 706); see also Welch v. Chao, 536 F.3d 269, 275-76 (4th Cir.2008) (ARB’s denial of complainant’s claims under Sar-banes-Oxley are reviewed under the APA for abuse of discretion). We consider, therefore, “whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment,” Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 378, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989), and we will set aside the agency determination only if we conclude that its decision “runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise,” LaFleur v. Whitman, 300 F.3d 256, 267 (2d Cir.2002) (citation omitted).
Pursuant to regulations promulgated by the Department of Labor, an ALJ may grant summary judgment to a party “if the pleadings, affidavits, material obtained by discovery or otherwise, or matters officially noticed show that there is no genuine issue as to any material fact.” 29 C.F.R. § 18.40(d). This standard is analogous to the rules governing motions for summary judgment in federal court. See Fed.R.Civ.P. 56; see also Puerto Rico Aqueduct & Sewer Auth. v. EPA, 35 F.3d 600, 607 (1st Cir.1994) (“[T]he concept of administrative summary judgment has been linked inextricably to *500Fed.R.Civ.P. 56.”). Moreover, to state a ;prima facie case under the Sarbanes-Ox-ley Act, an employee must show that: (1) she engaged in a protected activity or conduct; (2) the employer knew or suspected, actually or constructively, that she engaged in the protected activity; (3) she suffered an unfavorable personnel action; and (4) “[t]he circumstances were sufficient to raise the inference that the protected activity was a contributing factor in the unfavorable action.” 29 C.F.R. § 1980.104(b)(1). Here, the agency’s determination that Gattegno failed to satisfy the third prong of this test, and its consequent award of summary judgment, was not a clear error of judgment.
In her complaint, Gattegno identified two unfavorable personnel actions: (1) constructive discharge, and (2) damage to her professional reputation and future work prospects. As to the first claim, the agency’s determination, based on undisputed facts, that Gattegno had constructively resigned from Prospect Energy Corporation by accepting another position before the actions claimed to constitute a constructive termination, was well within the bounds of the agency’s expert discretion. As to the second claim, the agency did not clearly err in determining that Gattegno did not produce any specific evidence, apart from mere conelusory assertions, in support of her allegation that the February 2005 press release was more adverse to her future employment prospects than any of the company’s prior releases, which she conceded were not adverse, nor did she otherwise demonstrate that the February release constituted an unfavorable personnel action.
The agency’s grant of summary judgment and dismissal of Gattegno’s complaint was not an abuse of its discretion. We have considered all of Gattegno’s remaining arguments and have determined them to be without merit.
For the foregoing reasons, the petition for review is DENIED.
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SUMMARY ORDER
Appellants Sayed Khalifa and Amany Corp. appeal from a grant of summary judgment and denial of their cross-motion, entered by the United States District Court for the Northern District of New York (McAvoy, J.) on January 9, 2008. We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.
Our previous opinion, Field Day LLC v. County of Suffolk, forecloses the challenges to the Coventry Mass Gathering Law. 463 F.3d 167 (2d Cir.2006). In Field Day, we upheld the constitutionality of a mass gathering law substantively identical to the one at issue in this case.
We have reviewed the remaining arguments, and find them to be without merit.
For the foregoing reasons, the judgment of the district court is AFFIRMED.
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SUMMARY ORDER
Appellant Charles Hecker appeals from the judgment of the district court granting summary judgment to Appellee Dwayne Montgomery on Appellant’s 42 U.S.C. § 1983 complaint. We assume the parties’ familiarity with the facts, proceedings below, and the issues on appeal.
We review the grant of 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. 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 resolve any ambiguities and draw permissible factual inferences in favor of the non-movant. Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir.2003). Despite this deference, a non-movant cannot defeat a motion for summary judgment merely through con-clusory statements or allegations. Davis v. New York, 316 F.3d 93, 100 (2d Cir.2002).
We affirm for substantially the same reasons stated by the magistrate judge in his well-reasoned report and recommendation.
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Robert A. Cuffee appeals the district court’s order dismissing his 42 U.S.C. § 1983 (2006) civil rights action for failure to pay the partial filing fee. On appeal, we confine our review to the issues raised in the Appellant’s Brief, see 4th Cir. R. 34(b), and Cuffee’s brief alleges no error committed by the district court. We therefore find Cuffee has forfeited appellate review of that order. Accordingly, we affirm the district court’s order. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.
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SUMMARY ORDER
Respondent-Appellant appeals from a Memorandum and Order of the United States District Court for the Southern District of New York (Buchwald, J.), entered March 31, 2009, 2009 WL 857625, granting the Petitioner-Appellee Rohan Brown’s petition for a writ of habeas corpus. Brown sought a writ on the ground that it would have been futile for him to argue at his state trial that the evidence adduced was insufficient to support a conviction for depraved indifference murder given the definition of that offense controlling in New York courts at the time, and therefore he had shown cause for his procedural default. We assume the parties’ familiarity with the underlying facts and procedural history of the case.
This Court reviews a district court’s ruling on a habeas petition de novo. Thibodeau v. Portuondo, 486 F.3d 61, 64 (2d Cir.2007). Federal habeas review is barred if the constitutional claim was denied by a state court on a state procedural ground that is both “independent of the merits of the federal claim and an adequate basis for the court’s decision.” Harris v. Reed, 489 U.S. 255, 260, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989) (internal quotation marks omitted).
*520The due process guaranteed by the Fourteenth Amendment ensures that no person shall be convicted of a crime except upon sufficient proof. Jackson v. Virginia, 443 U.S. 307, 316, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). In New York, an objection to the legal sufficiency of the evidence is presented to the court in a motion to dismiss. People v. Thomas, 36 N.Y.2d 514, 516, 369 N.Y.S.2d 645, 330 N.E.2d 609 (1975). New York’s contemporaneous objection rule requires that a litigant object during the trial in order to preserve an issue for appeal. N.Y.Crim. Proc. Law § 470.05(2). This Court has held that the application of New York’s contemporaneous objection rule may bar federal habeas review. Garcia v. Lewis, 188 F.3d 71, 79 (2d Cir.1999).
Federal courts, however, “are empowered under 28 U.S.C. § 2254 to look beyond a state procedural forfeiture and entertain a state prisoner’s contention that his constitutional rights have been violated.” Reed v. Ross, 468 U.S. 1, 9, 104 S.Ct. 2901, 82 L.Ed.2d 1 (1984). Before the habeas court will consider the merits of a federal claim, the prisoner must demonstrate cause for his state-court default and prejudice from it. House v. Bell, 547 U.S. 518, 536, 126 S.Ct. 2064, 165 L.Ed.2d 1 (2006).
The Supreme Court has explained that futility cannot constitute cause for procedural default “if it means simply that a claim was unacceptable to that particular court at that particular time.” Bousley v. United States, 523 U.S. 614, 623, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998) (internal quotation marks omitted); see also Jones v. Keane, 329 F.3d 290, 295 (2d Cir.2003) (“It is well established that a petitioner may not bypass state courts merely because they may be unreceptive to the claim.”).
Only a few years ago this Court held, in DiSimone v. Phillips, 461 F.3d 181 (2d Cir.2006), that the futility argument advanced by a similarly-situated habeas petitioner failed because, at the time of the his trial in 2001, “New York state courts had not consistently rejected” the claim that a conviction for depraved indifference murder was unsupported by the evidence. Id. at 191. The facts of DiSimone are, for all purposes relevant to this appeal, identical to those presented here. In addition, from 2001 to the time of Brown’s trial in 2003 the New York appellate courts reversed two depraved indifference murder convictions on the grounds that the evidence was legally insufficient. People v. Hafeez, 100 N.Y.2d 253, 258-59, 762 N.Y.S.2d 572, 792 N.E.2d 1060 (2003); People v. Gonzalez, 302 A.D.2d 870, 871-72, 755 N.Y.S.2d 146 (N.Y.App.Div.2003).
Accordingly, under the controlling precedent of this Court, Brown cannot prevail on his claim that it would have been futile for him to argue at trial that the evidence adduced was insufficient to support a conviction. The District Court distinguished DiSimone on the grounds that it presented the question of whether it would have been futile for petitioner’s appellate counsel to argue legal insufficiency, whereas the case before us involves procedural default at trial. Brown v. Ercole, No. 07-Civ.-11609, 2009 WL 857625, at *6 n. 5 (S.D.N.Y. Mar.31, 2009). Given that New York appellate courts are equally bound by New York Court of Appeals precedent, see People v. Jackson, 46 A.D.3d 1110, 1111, 847 N.Y.S.2d 743 (N.Y.App.Div.2007), we find that the holding of DiSimone is fully applicable to the present case.
Because Brown has not shown cause for the procedural default of his constitutional claim, we need not consider whether he suffered prejudice. We have considered Brown’s other arguments and find them to be without merit, though he may have *521redress in state court for claims we do not address here.
Accordingly, we REVERSE the District Court’s grant of Brown’s habeas petition and REMAND with directions to dismiss the petition.
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SUMMARY ORDER
Sucurija Tafovic, a native and citizen of Montenegro,1 seeks review of a March 5, 2009 order of the BIA, affirming the October 18, 2006 decision of Immigration Judge (“IJ”) Philip L. Morace, which denied his application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Sucurija Tafovic, No. A077 322 694 (B.I.A. Mar. 5, 2009), aff'g No. A077 322 694 (Immig. Ct. N.Y. City Oct. 18, 2006). We assume the parties’ familiarity with the underlying facts and procedural history in this case.
When the BIA does not expressly “adopt” the IJ’s decision, but its brief opinion closely tracks the IJ’s reasoning, the Court may consider both the IJ’s and the BIA’s opinions “for the sake of completeness.” Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir.2008). We review the agency’s factual findings under the substantial evidence standard. See 8 U.S.C. § 1252(b)(4)(B); Corovic v. Mukasey, 519 F.3d 90, 95 (2d Cir.2008). We review de novo questions of law and the application of law to undisputed fact. Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.2008).
We find no error in the agency’s denial of Tafovic’s application for asylum and withholding of removal. The BIA properly concluded that Tafovic did not suffer past persecution at the hands of “boat patrol” officers. See Beskovic v. Gonzales, 467 F.3d 223, 226 n. 3 (2d Cir.2006); Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d 332, 341 (2d Cir.2006); Matter of T-Z-, 24 I. & N. Dec. 163, 170-71 (BIA 2007). As the government concedes, however, the agency likely erred in finding that Tafovic failed to establish past persecution when he resisted conscription into the Serbian military. See Islami v. Gonzales, 412 F.3d 391, 397 (2d Cir.2005). Yet, even if we were to find that the agency erred in determining that Tafovic did not establish past persecution, such error would not warrant remand because the agency offered a valid alternative basis for its denial of relief. See 8 C.F.R. § 1208.13(b)(l)(i); see also Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 338 (2d Cir.2006).
Substantial evidence supports the IJ’s conclusion that “there has been a fundamental ... significant change in country conditions .... [and] that there would be little likelihood of persecution to the respondent if he were to return to Montenegro at this time.” In support of that finding, the IJ relied on the 2005 U.S. Department of State Report on Human Rights Practices, which indicates that Montenegro is independent from Serbia, *523and that the government generally respects the human rights of its citizens. The IJ further noted that Montenegro has passed amnesty laws exempting persons such as Tafovic from prosecution for evasion of military service. This evidence was ample support for the agency’s Ending of a fundamental change in circumstances. See Hoxhallari v. Gonzales, 468 F.3d 179, 187-88 (2d Cir.2006); cf. Alibasic v. Mukasey, 547 F.3d 78, 81-82 (2d Cir.2008). Finally, the IJ reasonably noted Tafovic’s testimony that authorities have not looked for him since 2000 and that his parents and three sisters are able to live in Montenegro without suffering persecution. See Melgar de Torres v. Reno, 191 F.3d 307, 313 (2d Cir.1999). These facts support the agency’s conclusion that Tafovic’s fear of persecution was not objectively well-founded.
Because Tafovic was unable to show the objective likelihood of persecution needed to make out an asylum claim, he was necessarily unable to meet the higher standard required to succeed on a claim for withholding of removal. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.2006); Gomez v. INS, 947 F.2d 660, 665 (2d Cir.1991). Tafovic does not challenge the agency’s denial of his request for CAT relief.
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
. Although the agency originally designated Tafovic as a native and citizen of Yugoslavia, he was ordered removed to Montenegro.
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SUMMARY ORDER
Petitioner Isatu Barrie, a native and citizen of Sierra Leone, seeks review of a February 6, 2009 order of the BIA denying her motion to reopen. In re Isatu Barrie, No. A095 460 140 (B.I.A. Feb. 6, 2009). We assume the parties’ familiarity with the underlying facts and procedural history in this case.
We lack jurisdiction over Barrie’s claim that the BIA erred by refusing to reopen her removal proceedings in light of our decision in Salimatou Bah v. Mulcasey, 529 F.3d 99 (2d Cir.2008), which she argues constituted a “fundamental” change in law excusing Barrie’s untimely motion to reopen before the BIA. A “fundamental” change in the law is not a ground for excusing an untimely motion to reopen. See 8 U.S.C. § 1229a(c)(7)(C)(i)-(ii) (requiring an applicant, in order to excuse an untimely motion to reopen, to demonstrate through material, previously unavailable evidence, that conditions in the country where the applicant fears persecution have changed such that the applicant now has a well-founded fear of future persecution if she were to return). Rather, the BIA may revisit its prior decision in the wake of a fundamental change in law pursuant to its sua sponte authority. See 8 C.F.R. § 1003.2(a); Matter of G-D-, 22 I. & N. Dec. 1132, 1134-35 (B.I.A.1999) (holding that the BIA may, on its own motion, consider an untimely or numerically barred motion to reopen a prior decision based on “a fundamental change in the law”). Thus, Barrie’s argument that the BIA erred in denying her untimely motion to reopen is, in actuality, a challenge to the BIA’s refusal to exercise its sua sponte authority. We lack jurisdiction to consider such challenges because the BIA’s exercise of its sua sponte authority is “entirely discretionary.” See Azmond Ali v. Gonzales, 448 F.3d 515, 518 (2d Cir.2006) (per curiam); see also Mahmood v. Holder, 570 F.3d 466, 469 (2d Cir.2009) (“[W]e are without jurisdiction to review the Agency’s failure to reopen removal proceedings sua sponte.”); 8 C.F.R. § 1003.2(a). Therefore, we are left with no alternative but to dismiss the petition for review.
For the foregoing reasons, the petition for review is DISMISSED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure *52534(a)(2), and Second Circuit Local Rule 34(b).
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SUMMARY ORDER
Petitioner Otilio Espindola-Castena (“petitioner”) seeks review of a November 17, 2008 decision of the BIA, affirming the April 18, 2008 decision of the Immigration *526Judge (“IJ”), denying petitioner’s motion to reopen his deportation proceedings. The issue presented by this petition for review is whether the BIA abused its discretion in affirming the denial of the motion to reopen. We assume the parties’ familiarity with the underlying facts, procedural history, and specification of issues for review.
Decisions affirming the denial of a motion to reopen are reviewed for abuse of discretion. See Kulhawik v. Holder, 571 F.3d 296, 298 (2d Cir.2009). “The BIA abuses its discretion when its decision provides no rational explanation, inexplicably departs from established policies, is devoid of any reasoning, or contains only summary or conclusory statements.” Id. (internal quotations omitted). Where, as here, the BIA affirms the decision of the IJ without opinion, this Court reviews the IJ’s decision in lieu of the BIA’s decision. See Elbahja v. Keisler, 505 F.3d 125, 128 (2d Cir.2007).
Under the regulations, “[a] motion to reopen proceedings shall not be granted unless it appears to the Board that evidence sought to be offered is material and was not available and could not have been discovered or presented at the former hearing....” 8 C.F.R. § 1003.2(c)(1). There are at least three independent grounds on which the Board might deny a motion to reopen. First, “the Board may deny a motion to reopen based upon the failure to establish a prima facie case for the relief sought.” Second, the Board may deny the motion because the evidence submitted is not material or was not previously unavailable. Or third, where the relief sought is discretionary, the Board can conclude that, even if it were to grant the motion to reopen, it would not exercise its discretion to grant the ultimate relief requested. Singh v. Mukasey, 536 F.3d 149, 155 (2d Cir.2008).
The IJ denied petitioner’s motion to reopen on two grounds. First, the IJ found that the evidence petitioner submitted with his motion to reopen should have been submitted at the merits hearing on his application for cancellation of removal and that petitioner had failed to explain why the evidence was “previously unavailable.”2 Second, he found that, even considering the new evidence, petitioner had not established his eligibility for cancellation of removal because the evidence failed to show ten years of continuous physical presence. These conclusions were supported by the record and we find no abuse of discretion in the Board’s decision affirming the denial.
We therefore DENY the petition for review.
. On appeal, petitioner argues for the first time that the evidence was previously unavailable because unspecified "parties” had previously been unwilling to submit evidence on his behalf; however, he did not make this argument in front of the IJ or the BIA.
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SUMMARY ORDER
Mei Yao Ying, a native and citizen of the People’s Republic of China, seeks review of an October 23, 2008 order of the BIA, affirming the March 21, 2007 decision of Immigration Judge (“IJ”) Brigitte Lafor-est, which denied her application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Mei Yao Ying, No. A098 596 594 (B.I.A. Oct. 23, 2008), aff'g No. A098 596 594 (Immig. Ct. N.Y. City Mar. 21, 2007). We assume the parties’ familiarity with the underlying facts and procedural history in this case.
When the BIA does not expressly “adopt” the IJ’s decision, but its brief opinion closely tracks the IJ’s reasoning, we consider both the IJ’s and the BIA’s opinions “for the sake of completeness.” Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir.2008). We review the agency’s factual findings, including adverse credibility findings, under the substantial evidence standard. See 8 U.S.C. § 1252(b)(4)(B); see also Shu Wen Sun v. BIA, 510 F.3d 377, 379 (2d Cir.2007). We review de novo questions of law and the application of law to undisputed fact. Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.2008). For applications governed by the REAL ID Act of 2005, the agency may, considering the totality of the circumstances, base a credibility finding on an asylum applicant’s demeanor, the plausibility of his or her account, and inconsistencies in his or her *528statements, without regal’d to whether they go “to the heart of the applicant’s claim.” 8 U.S.C. § 1158(b)(l)(B)(iii); see Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir.2008).
Here, the agency’s adverse credibility finding is supported by substantial evidence. In finding Ying not credible, the agency reasonably relied in part on inconsistencies in her testimony. See Liang Chen v. U.S. Attorney Gen., 454 F.3d 103, 106-07 (2d Cir.2006). For example, the IJ reasonably noted the inconsistencies in Ying’s testimony as to whether she sought medical treatment following her alleged forced abortion and what type of treatment was required. The IJ reasonably declined to credit Ying’s explanation that she “forgot” and “was devastated at the time.” See Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir.2005) (holding that an agency need not credit an applicant’s explanations for inconsistent testimony unless those explanations would compel a reasonable fact-finder to do so). Moreover, as Ying’s testimony was not otherwise credible, it was not error for the agency to note Ying’s failure to adequately corroborate her claim, where the only documentary evidence she provided consisted of statements that were not notarized, and the authors were not available for cross-examination. See Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir.2007); Xiao Ji Chen v. Dep’t of Justice, 471 F.3d 315, 342 (2d Cir.2006) (finding that the weight afforded to the applicant’s evidence in immigration proceedings lies largely within the discretion of the IJ).
Under the REAL ID Act, these findings were sufficient to support the agency’s conclusion that Ying was not credible. See Xiu Xia Lin, 534 F.3d at 167. Accordingly, the agency’s denial of asylum was not in error. Because the agency’s adverse credibility determination was supported by substantial evidence, it reasonably denied Ying’s application for asylum, withholding of removal, and CAT relief, where all three claims shared the same factual predicate. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.2006); Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 523 (2d Cir.2005). Finally, we deem Ying’s CAT claim based on her purportedly illegal departure from China abandoned, because she has not challenged such denial before the BIA or this Court. See Gui Yin Liu v. INS, 508 F.3d 716, 723 n. 6 (2d Cir.2007).
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
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SUMMARY ORDER
In this action, the Trustees of the New York State Nurses Association Pension Plan (the “Trustees”) seek to force the Cabrini Medical Center (“Cabrini”) to make contributions to the New York State Nurses Association (“NYSNA”) Pension Plan. Until March 2008, Cabrini was a Manhattan hospital that employed nurses who were members of NYSNA. Cabrini *530and NYSNA were parties to a collective bargaining agreement (the “CBA”) that expired in January 2008. Under the CBA, Cabrini was obligated to make monthly contributions to the NYSNA Pension Plan, which was administered by the Trustees pursuant to an “Agreement and Declaration of Trust Establishing The [NYSNA] Pension Plan” (the “Trust Agreement”). Notwithstanding the fact that the NYSNA nurses continued to work at Cabrini until the hospital closed its doors on March 17, 2008, Cabrini ceased making contributions to the NYSNA Pension Plan in January 2008.
On June 17, 2008, an arbitrator issued an award in favor of the Trustees (the “Award”), which directed Cabrini to make certain payments to the NYSNA Pension Plan. In the proceedings below, the Trustees moved to confirm the Award, and Cabrini cross-moved to vacate it. On January 30, 2009, the United States District Court for the Southern District of New York (Berman, J.) granted the Trustees’ motion to confirm the Award and denied Cabrini’s cross-motion for vacatur. Cabrini appeals that decision. We presume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.
When examining a district court’s confirmation of an arbitral award, we review its factual findings for clear error and its legal conclusions de novo. See 187 Concourse Assocs. v. Fishman, 399 F.3d 524, 526 (2d Cir.2005) (per curiam). In doing so, “[w]e accord a high degree of deference to an arbitrator’s decision.” Id. “[A]s long as the arbitrator is even arguably construing or applying the contract and acting within the scope of his authority, that a court is convinced he committed serious error does not suffice to overturn his decision.” United Paperworkers Int’l Union v. Misco, Inc., 484 U.S. 29, 38, 108 S.Ct. 364, 98 L.Ed.2d 286 (1987). “If it were otherwise, the ostensible purpose for resort to arbitration, i.e., avoidance of litigation, would be frustrated.” Amicizia Societa Navegazione v. Chilean Nitrate & Iodine Sales Corp., 274 F.2d 805, 808 (2d Cir.1960).
The resolution of a motion to confirm an arbitral award typically involves a two-part inquiry. First, the court must ask whether the arbitrator acted within the scope of his or her authority in issuing the award. Local 1199, Drug, Hosp. & Health Care Employees Union, RWDSU, AFL-CIO v. Brooks Drug Co., 956 F.2d 22, 25 (2d Cir.1992). Second, the court must ascertain whether the award “draws its essence” from the agreement in question. Id. In this case, the district court answered both of these questions in the affirmative. We agree with its ultimate conclusions.
“The scope of an arbitrator’s authority ... ‘generally depends on the intention of the parties to an arbitration, and is determined by the agreement or submission.’” ReliaStar Life Ins. Co. of N.Y. v. EMC Nat’l Life Co., 564 F.3d 81, 85 (2d Cir.2009) (quoting Synergy Gas Co. v. Sasso, 853 F.2d 59, 63-64 (2d Cir.1988)). Here, the Trustees’ original “submission” to the arbitrator — their March 10, 2008 “Demand for Arbitration” — included as an “Attachment” a copy of the Trust Agreement’s arbitration clause. Cabrini was presumably well aware of the substance of this clause, as it had already “agree[d] to be bound” by the Trust Agreement in a separate “Acknowledgment” form. The “agreement” defining the boundaries of the arbitrator’s authority was therefore the Trust Agreement, as amended. The Trust Agreement, in turn, authorized the Trustees to “compel and enforce [Cabrini’s] payment of contributions” to the NYSNA Pension Plan through arbitration, and it stated that an arbitrator’s decision regarding any such dispute “shall be final and binding.”
*531In light of the language in the Demand and the Trust Agreement, the arbitrator did not exceed her authority by issuing the Award. Moreover, because the arbitrator’s authority was a function of the parties’ agreements, Cabrini’s reliance on Laborers Health & Welfare Trust Fund for Northern California v. Advanced Lightweight Concrete Co., 484 U.S. 539, 108 S.Ct. 830, 98 L.Ed.2d 936 (1988), is misplaced. The Advanced Lightweight Court merely held that sections 502(g)(2) and 515 of the Employee Retirement Income Security Act, 29 U.S.C. §§ 1132(g)(2), 1145, do not provide a jurisdictional basis for a federal court to review allegedly unfair labor practices that would otherwise fall under the jurisdiction of the National Labor Relations Board. Advanced Lightweight, 484 U.S. at 547-M9, 108 S.Ct. 830. Advanced Lightweight does not divest an arbitrator of authority to resolve a dispute over the meaning of a private contract that contains an arbitration clause. Therefore, the district court did not err in concluding that the arbitrator acted within the scope of her authority.
The district court also properly rejected Cabrini’s argument that the arbitrator incorrectly interpreted the terms of the Trust Agreement. Under the “essence of the agreement” doctrine, a court may “not reverse an arbitral award that draws its essence from the agreement, even if it contains factual errors or erroneous interpretations of contract provisions.” First Nat’l Supermarkets, Inc. v. Retail, Wholesale & Chain Store Food Employees Union Local 338, 118 F.3d 892, 896 (2d Cir.1997). Where, as here, “the parties agreed to submit an issue for arbitration, we will uphold a challenged award as long as the arbitrator offers ‘a barely colorable justification for the outcome reached.’ ” ReliaStar Life Ins., 564 F.3d at 86 (quoting Banco de Seguros del Estado v. Mut. Marine Office, Inc., 344 F.3d 255, 260 (2d Cir.2003)). Moreover, “[ejven where an arbitrator’s explanation for an award is deficient, we must confirm it if a justifiable ground for the decision can be inferred from the record.” Stolt-Nielsen SA v. AnimalFeeds Int’l Corp., 548 F.3d 85, 97 (2d Cir.2008).
The arbitrator’s decision reflects that she was relying on the Trust Agreement, and she specifically ruled that Cabrini “had an obligation under the Trust Agreement to make contributions for the period that employees were employed at the Hospital.” (Award at 6 (emphasis added).) Reviewing this conclusion deferentially, as we must, we hold that Cabrini has failed to establish that the Award is so untethered from the Trust Agreement that it must be vacated.
The “First Amendment” to the Trust Agreement referenced a “Policy for Continuation of Benefits on Expiration of a Collective Bargaining Agreement” (the “Continuation Policy”). The Continuation Policy described circumstances under which Cabrini’s obligations to contribute to the NYSNA Pension Plan would continue after the expiration of the CBA. For example, paragraph D(l) of the Continuation Policy stated that, in the event that the CBA expired and Cabrini “ha[d] not executed a new agreement,” its employees were entitled to written notice that “their covered employment will terminate on the 90th day following the expiration ” of the CBA. (Continuation Policy ¶ D(l) (emphasis added).)
Cabrini argues that the terms of the Continuation Policy did not require payments after expiration of the CBA. The arbitrator’s award indicates that she interpreted the interaction of the Trust Agreement, the CBA, and the Continuation Policy differently. Cabrini’s disagreement with this conclusion does not provide a basis for relief under the “essence of the *532agreement” doctrine. See United Steelworkers of Am. v. Enter. Wheel & Car Corp., 363 U.S. 593, 599, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960) (“[S]o far as the arbitrator’s decision concerns construction of the contract, the courts have no business overruling [her] because their interpretation of the contract is different from [hers].”). Consequently, we find no error in the district court’s conclusion that the Award was derived from the essence of the Trust Agreement.
Finally, Cabrini argues that the Award is unenforceable because the arbitrator’s interpretation of the Trust Agreement would require it to violate section 302(a) of the Labor Management Relations Act (“LMRA”). In Cabrini’s view, the arbitrator could not rely on any portion of the CBA in making her decision because it had expired in January 2008. Thus, Cabrini argues, because the details of its contribution obligations are specified in the CBA rather than the Trust Agreement, the payments called for by the Award lack a sufficiently “detailed basis [upon] which such payments are to be made.” 29 U.S.C. § 186(c)(5)(B). According to Cabrini, the Award must be vacated as void because the contributions that it calls for would be illegal under section 302(a) of the LMRA.
The district court held that Cabrini waived this argument. Indeed, there is no indication in the record that Cabrini raised this contention until its June 27, 2008 letter seeking “clarification” of the Award. Nevertheless, Cabrini argues that its contention is not waivable because courts may not enforce contracts that contravene public policy. Cf. Saint Mary Home, Inc. v. Serv. Employees Int’l Union, Dist. 1199, 116 F.3d 41, 45 (2d Cir.1997) (“The question of whether an arbitral award violates public policy is one for the courts.”). We need not address this issue, however, because Cabrini’s argument is incorrect on the merits. Without providing any authority for its position, Cabrini assumes that, because the CBA had expired, it could not serve as the source of the “detailed basis,” 29 U.S.C. § 186(c)(5)(B), for the contributions called for by the Award. Simply put, this is not the law. See Cibao Meat Prods., Inc. v. N.L.R.B., 547 F.3d 336, 341 (2d Cir.2008) (“[A]n expired collective-bargaining agreement satisfies the written-agreement requirement of § 302(c)(5)(B).”). Thus, we reject the substance of Cabrini’s illegality argument: the terms of the Award do not require Cabrini to violate the LMRA.
We have reviewed Cabrini’s remaining arguments and find them to be without merit. Accordingly, the January 30, 2009 order of the district court is hereby AFFIRMED.
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SUMMARY ORDER
Plaintiff-Appellant Richard B. Durgin (“Durgin”) appeals from a September 24, 2008, 2008 WL 4416285, judgment of the United States District Court for the District of Vermont (Murtha, J.), which granted the motion of Defendant-Appellee *539Blue Cross and Blue Shield of Vermont (“BCBS”) for summary judgment. Dur-gin’s claim, brought pursuant to the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1132(a)(1)(B), arises from the denial by BCBS of coverage for a “standing component” on his motorized wheelchair under BCBS’s “Vermont Freedom Plan” (the “Plan”). We assume the parties’ familiarity with the facts of the case, its procedural history, and the scope of the issues on appeal.
We review the decision of the District Court to grant summary judgment de novo. McCauley v. First Unum Life Ins. Co., 551 F.3d 126, 130 (2d Cir.2008). Because the Plan gives BCBS discretionary authority to determine eligibility benefits, we will overturn BCBS’s decision only if it was “arbitrary and capricious,” id. at 132 — that is, if it was “without reason, unsupported by substantial evidence or erroneous as a matter of law.” Kinstler v. First Reliance Standard Life Ins. Co., 181 F.3d 243, 249 (2d Cir.1999) (internal quotation marks omitted). While a plan administrator need not “accord special weight to the opinions of a claimant’s physician,” it also “may not arbitrarily refuse to credit a claimant’s reliable evidence, including the opinions of a treating physician.” Black & Decker Disability Plan v. Nord, 538 U.S. 822, 834, 123 S.Ct. 1965, 155 L.Ed.2d 1034 (2003); see also Demirovic v. Bldg. Serv. 32 B-J Pension Fund, 467 F.3d 208, 212 (2d Cir.2006). If BCBS “impose[d] a standard not required by the plan’s provisions, or interpreted] the plan in a manner inconsistent with its plain words, its actions may well be found to be arbitrary and capricious.” McCauley, 551 F.3d at 133 (internal quotation marks omitted).
In denying Durgin’s claim for coverage, BCBS relied on two grounds: (a) that “[t]here are no peer reviewed clinically controlled studies available showing that the stander improves net health outcomes,” and (b) that there is “no evidence showing the benefit of the standing feature and that it will help restore or maintain [Durgin’s] health.” J.A. 76 (emphasis added).1 Neither of these grounds can survive review.
BCBS first stated that Durgin did not show that the standing component was “medically necessary” because there were no “peer reviewed clinically controlled studies ” showing “improvefd] net health outcomes.” Id. (emphasis added). But the Plan does not contain any requirement that a service be supported by “peer reviewed clinically controlled studies” before BCBS will provide coverage, and such a requirement is impossible to square with the lower standard that the Plan establishes for “Medical and Scientific Evidence.” BCBS’s atextual requirement therefore “impose[d] a standard not required by the plan’s provisions,” McCau-ley, 551 F.3d at 133 (internal quotation marks omitted), and accordingly was arbitrary and capricious.
BCBS’s second ground is factually incorrect: Durgin put forward ten articles from medical journals providing varying degrees of support for the medical benefits of the *540standing component. He also proffered his treating physician’s statement that the standing component had led to “a marked decrease in spasticity, as well as an overall improvement in maintaining his skin integrity,” had “very positively impacted his history of decubitus ulcers,” and had “helped [him] maintain bone density and has prevented osteoporosis.” J.A. 68, 74. While this evidence might ultimately be deemed inadequate to require BCBS to insure the standing component (a question we need not and do not reach), it cannot be said that “no evidence” showed the medical benefits that Durgin alleged. J.A. 76 (emphasis added). BCBS’s second ground thus “arbitrarily refuse[d] to credit a claimant’s reliable evidence,” Black & Decker, 538 U.S. at 834, 123 S.Ct. 1965, and cannot support BCBS’s denial of the claim.
Alternatively, BCBS sought to write off the various medical articles submitted by Durgin by asserting that they were not published in peer-reviewed journals and that the standing component was accordingly “experimental” or “investigational” under the Plan.2 This too was factually erroneous; as post-argument briefing revealed, a significant number of the articles Durgin proffered did in fact appear in peer-reviewed journals.
When we determine a denial of benefits to be arbitrary and capricious, our usual practice is to “remand to the [administrator] with instructions to consider additional evidence unless no new evidence could produce a reasonable conclusion permitting denial of the claim or remand would otherwise be a ‘useless formality.’ ” Miller v. United Welfare Fund, 72 F.3d 1066, 1071 (2d Cir.1995). Whether the articles and other evidence proffered by Durgin are sufficient to bring the standing option within generally accepted practice parameters, when the Plan is construed in a reasonable manner, is a question to be considered in the first instance by BCBS.3 *541Accordingly, we VACATE the judgment of the District Court and REMAND the case for further proceedings consistent with this order.
. In its initial denial of Durgin’s request and in response to his first administrative appeal, BCBS stated that the standing option was “intended primarily for convenience or comfort beyond what is necessary to meet the member’s legitimate medical needs.” J.A. 31. BCBS does not advance this argument on appeal, and has thereby waived it. See, e.g., Design Strategy, Inc. v. Davis, 469 F.3d 284, 300 (2d Cir.2006). In any event, BCBS provided no explanation of how the standing option fit into the “convenience or comfort" category, which appears to be a poor fit for the standing component. See J.A. 58 (identifying, as examples of such equipment, “decorative items, unique materials (e.g. magnesium wheelchair wheels, lights, extra batteries, etc.)”).
. Durgin contends that this argument should not be considered in the federal courts because it was not relied upon during the claims process. Because Appellees' rationale fails even if it was adequately stated, however, we need not consider this issue.
. In its post-argument letter brief, BCBS argues that the content of the articles is insufficient to establish medical necessity. Because this claim was raised at such a late date in the proceeding, and is not based on the administrative record, we will not consider it. See Elec. Inspectors, Inc. v. Vill. of E. Hills, 320 F.3d 110, 123 n. 8 (2d Cir.2003) (argument not raised until supplemental brief abandoned); Miller, 72 F.3d at 1071 ("[D]is-trict courts are required to limit their review to the administrative record ....”); cf. Univ. Hosps. v. Emerson Elec. Co., 202 F.3d 839, 848-49 n. 7 (6th Cir.2000) ("[I]t strikes us as problematic to, on one hand, recognize an administrator’s discretion to interpret a plan by applying a deferential 'arbitrary and capricious' standard of review, yet, on the other hand, allow the administrator to ‘shore up’ a decision after-the-fact by testifying as to the ‘true’ basis for the decision after the matter is in litigation, possible deficiencies in the decision are identified, and an attorney is consulted to defend the decision by developing creative post hoc arguments that can survive deferential review.”).
Nor does this argument render remand futile. It is by no means clear that the criticisms that BCBS levels against the substance of the six peer-reviewed articles even support BCBS’s conclusion, let alone justify a denial of coverage. BCBS acknowledges that one of the articles "recommends standing devices for persons with spinal cord injury,” J.A. 99, which if anything appears to strengthen Dur-gin’s contention that the standing option is "consistent with generally accepted practice parameters,” as the Plan requires, J.A. 115. Its primary complaint regarding four other articles is that they lack clinical evidence. But, for the reasons given above, this is insufficient to support denial of the claim. As to the final peer-reviewed article, BCBS merely notes that it concludes that controlled studies are needed, and says nothing about any other recommendations or conclusions that that article makes.
*541Nothing in this order generally, or in this footnote in particular, should be read as precluding Durgin from presenting additional evidence to BCBS on remand if indeed additional relevant evidence has come into being since this claim was last before BCBS’s internal review panel.
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SUMMARY ORDER
Petitioner Mei Zi Cui, a native and citizen of the People’s Republic of China, seeks review of the November 25, 2008 order of the BIA, which denied her motion to reopen. In re Mei Zi Cui, No. A098 903 223 (B.I.A. Nov. 25, 2008). We assume the parties’ familiarity with the underlying facts and procedural history of the case.
We review the BIA’s denial of a motion to reopen for abuse of discretion. See Kaur v. BIA, 413 F.3d 232, 233 (2d Cir.2005) (per curiam). We conclude that the BIA did not abuse its discretion in denying Cui’s motion to reopen as untimely inasmuch as it was filed in June 2008, over one year after the BIA issued its May 2007 final order of removal. See 8 C.F.R. § 1003.2(c)(2).
Where ineffective assistance of counsel prevents an alien from presenting her claim, the filing deadline for motions to reopen may be equitably tolled. Cekic v. INS, 435 F.3d 167, 171 (2d Cir.2006). In order to warrant equitable tolling, an alien is required to demonstrate “due diligence” in pursuing her claims during “both the period of time before the ineffective assistance of counsel was or should have been discovered and the period from that point until the motion to reopen is filed.” Rashid v. Mukasey, 533 F.3d 127, 132 (2d Cir.2008). We have noted that “there is no period of time which we can say is per se unreasonable, and, therefore, disqualifies a petitioner from equitable tolling — or, for that matter, any period of time that is per se reasonable.” Jian Hua Wang v. BIA 508 F.3d 710, 715 (2d Cir.2007).
We conclude that there was no abuse of discretion by the BIA in concluding that Cui failed to exercise due diligence because she filed her motion to reopen 13 months after she should have reasonably discovered that she received ineffective assistance of counsel. See id. Cui does not deny that she became aware of Han’s ineffective assistance in May 2007, but asserts that she was delayed in filing her motion to reopen because it “took her time to file” complaints against Han due to the fact his office was in New York yet he was only a member of the New Jersey bar. However, Cui fails to explain why it “took her time to file” the complaints and concedes that she “delayed for about six months.” Cui’s pending petition for review on the merits of her direct appeal did not preclude her from seeking to reopen the BIA proceedings based on ineffective assistance of counsel. Accordingly, Cui fails to demonstrate that the BIA abused its discretion in denying her untimely motion.
Because the BIA did not abuse its discretion in declining to equitably toll the time limitation for filing Cui’s motion, we need not consider the BIA’s alternative findings that she failed to demonstrate compliance with the requirements set forth in Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988), or that she was prejudiced by counsel’s purportedly ineffective assistance, see Rashid, 533 F.3d at 131.
For the foregoing reasons, the petition for review is DENIED. Having completed our review, we DISMISS the petitioner’s pending motion for a stay of removal as moot.
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SUMMARY ORDER
Sean Johnson (“Johnson”) appeals from the final judgment of the District Court for the Southern District of New York granting summary judgement for appellee CH Energy Groups, Inc. (“CHG & E”). We assume the parties’ familiarity with the facts, proceedings below, and the specification of the issues on appeal.
Johnson began his employment at CHG & E in 1990 and was hired in February, 1993 as a full-time employee. The terms of Johnson’s employment with CHG & E are defined in a collective bargaining agreement negotiated between the International Brotherhood of Electrical Workers, Local 320 and CHG & E (“CBA”).
In 2001, Johnson completed the required examination and was promoted to the position of Lineman Third Class. In March, 2005, Johnson attempted the examination to proceed to become a Lineman First Class, which consists of both a written and a practical component. Johnson was required by the CBA to wait a period of eighteen months, so that he might pursue additional training opportunities, before he could attempt the examination again. During this period, Johnson was transferred to CHG & E’s Kingston branch.
Johnson alleges that he was subjected to a series of incidents involving racial discrimination. When he first started as a Lineman, Johnson, who is African American, claims that he found a photograph of a black Lineman from Con Edison (a competitor firm) and on another occasion, a black woman, taped to his locker. He says that one of his colleagues called him “Boy” and “Willis.” Johnson further alleged that a photograph of all of the lineman in the Kingston branch had been taped to his locker, and that his picture had been colored black.
While he was employed at the Kingston branch, Johnson argues that another employee of a similar level at CHG & E said that Johnson had “snowed” everyone at Kingston and that he could “see right through him.” On another occasion, in October 2005, Johnson gave Wayne Rice, his supervisor, a length of rope as part of a work-related task. Johnson claims Rice threw it back at him, and said “maybe [he would] make a noose.” Thomas Brocks, a Vice-President of Human Resources at CHG & E, contacted Johnson after the noose incident and encouraged Brocks to inform him if he heard any other racial comments. Johnson also alleges that Dave Warren, one of his supervisors, was dismissive of him and critical of his work in front of his coworkers.
On February 16, 2006, Johnson again attempted the examination to become a First Class Lineman. Johnson achieved nearly a perfect score on the written examination. He did not, however, receive a passing score on the practical component, and was, pursuant to the CBA, denied the promotion and demoted to the position of Meter Reader. The four proctors of the practical examination, Jay Deyo, Michael Lennon, Robert Elliott and Warren, agreed that Johnson had not shown the competence or the fluidity during the examination necessary to be a First Class Lineman. Two of the proctors, Deyo and Warren, claimed that they saw Johnson remove his rubber glove during the examination, which they say contributed to the failing score that he received. On the other hand, the two other proctors, Elliot and Lennon, later said that they did not *545see Johnson remove the glove. Johnson claims that he did not remove the glove during the practical examination.
The same day that Johnson attempted the examination, two other employees, John Schueren, and Scott Parker, completed the First Class Lineman examination for a second time. Schueren, who is Caucasian, and Parker, who is African American, received passing scores.
On February 21, 2006, Johnson met with Brocks, Heather Still, the Labor Relations Administrator for CHG & E, and Union President Frank Maher to discuss the results of the examination. Johnson explained that he had heard he failed the examination, because he had removed his glove, and suggested Warren and Deyo had lied about his having removed the glove. After the meeting, Brocks designated Barry Bloom, the Director of Corporate Compliance, to lead an investigation into Johnson’s allegations of racial discrimination. Bloom concluded that there was no evidence that the decision was racially motivated.
Johnson alleged in his complaint that he was denied a promotion and subsequently demoted on the basis of his race in violation of 42 U.S.C. § 1981 and New York State Executive Law, § 296. The district court concluded that Johnson had failed to establish a prima facie case of discrimination under section 1981. In the alternative, the court found that CHG & E had articulated a nondiscriminatory justification for the employment decision, and that Johnson failed to provide evidence of discriminatory pretext. The court declined to exercise supplemental jurisdiction over Johnson’s state law claims.
This Court reviews a district court’s grant of summary judgment de novo, and it applies the same standards that guided the district court in granting summary judgment. O’Shea v. First Manhattan Co. Thrift Plan & Trust, 55 F.3d 109, 111 (2d Cir.1995). “In deciding a motion for summary judgment,” this Court has instructed, “the district court is not to resolve issues of fact but only to determine whether there is a genuine triable issue as to a material fact. In making that determination, the court is required to resolve all ambiguities, and to credit all factual inferences that could rationally be drawn, in favor of the party against whom summary judgment is sought.” Howley v. Town of Stratford, 217 F.3d 141, 150-51 (2d Cir.2000). A genuine issue of material fact “arises if the evidence would allow a reasonable jury to return a verdict for the non-moving party.” Dister v. Cont’l Group, Inc., 859 F.2d 1108, 1114 (2d Cir.1988).
To establish a claim under 42 U.S.C. § 1981, a plaintiff must show that “(1) that she is a member of a racial minority; (2) an intent to discriminate on the basis of race by the defendant; and (3) that the discrimination concerned one or more of the activities enumerated in § 1981.” Lauture v. Int’l Bus. Mach. Corp., 216 F.3d 258, 261 (2d Cir.2000).
This Court has recognized that “[m]ost of the core substantive standards that apply to claims of discriminatory conduct in violation of Title VII are also applicable to claims of discrimination in employment in violation of § 1981 ...” Patterson v. County of Oneida, 375 F.3d 206, 225 (2d Cir.2004). In both the Title VII context and with respect to section 1981 claims, this Court applies the burden-shifting framework articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); Martin v. Citibank, N.A., 762 F.2d 212, 216-17 (2d Cir.1985).
Under McDonnell Douglas, a plaintiff “must establish, by a preponderance of the *546evidence ... (1) that [he] falls within the protected group, (2) that plaintiff applied for a position for which he was qualified, (3) that [he] was subject to an adverse employment decision and (4) that the adverse employment decision was made under circumstances giving rise to an inference of unlawful discrimination.” Byrnie v. Town of Cromwell, Bd. of Educ., 243 F.3d 93, 101 (2d Cir.2001) (citing McDonnell Douglas Corp., 411 U.S. at 802, 93 S.Ct. 1817).
When the plaintiff has established a pri-ma facie case, the employer may defeat a rebuttable presumption of discrimination by “articulating a legitimate, non-discriminatory reason for the employment decision.” Bymie, 243 F.3d at 102. Finally, if the employer offers such a reason, which would allow a reasonable trier of fact to conclude that no discrimination occurred, the burden-shifting framework “disappears and the sole remaining issue is discrimination vel non.” Id. (internal quotation marks and citations omitted). “The burden upon the plaintiff to prove a prima facie case is minimal.” Id.
Applying the McDonnell Douglas standard, at step one, there is no debate that Johnson is an African American and that he suffered an adverse employment action in that he failed to receive a promotion and was subsequently, and consistent with company policy, demoted to the position of Meter Reader. Bymie, 243 F.3d at 101. The next inquiry focuses on whether or not Johnson was adequately qualified for the position. Id. The district court assumed that Johnson was qualified for the position, and we assume the same. Id.
Taking the facts in the light most favorable to Johnson, the noose incident, combined with the incidents he alleges occurred involving his photograph, we find he meets his minimal burden to set out a prima facie case of discrimination. Id,.; Dawson v. Bumble and Bumble, 398 F.3d 211, 216 (2d Cir.2005).
At the fifth step under McDonnell Douglas, we must consider whether the district court erred by resolving a question of fact as to whether Johnson removed his rubber glove during the examination. Johnson’s removal of the rubber glove featured prominently in the proctors’ decision to deny him a promotion. It was the first explanation provided to him regarding the employment decision, and it was also the only objective factor — in contrast to the subjective criteria of “fluidity” or “continuity” — that the proctors cited as relevant to their decision.
In Reeves v. Sanderson Plumbing Products Inc., 530 U.S. 133, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000), the Supreme Court considered the extent of the evidence necessary for the district court to reject an employer’s nondiscriminatory basis for an employment decision. The Court found that “it is permissible for the trier of fact to infer the ultimate fact of discrimination from the falsity of the employer’s explanation,” and that “[p]roof that the defendant’s explanation is unworthy of credence is simply one form of circumstantial evidence that is probative of intentional discrimination .... ” Id. at 146^47, 120 S.Ct. 2097. Such evidence, the Court found, “may be quite persuasive.” Id. at 147, 120 S.Ct. 2097.
The question of whether Johnson removed his glove is the type of factual dispute that Reeves instructs should be sent to a jury. “Whether judgment as a matter of law is appropriate will depend on a number of factors .... including] the strength of the plaintiffs prima facie case, the probative value of the proof that the employer’s explanation is false, and any other evidence that supports the employer’s case and that properly may be consid*547ered on a motion for judgement as a matter of law.” Id. at 148-49, 120 S.Ct. 2097. See Schnabel v. Abramson, 232 F.3d 83, 89 (2d Cir.2000) (finding Reeves applies to a motion for summary judgment).
A consideration of these factors support the view that the district court’s grant of summary judgment was in error. See Bymie, 243 F.3d at 101. First, Johnson’s history of discrimination at CHG & E, including the noose incident and the harassment he experienced when his photograph was colored black and photographs of African Americans were placed on his locker, add strength to his prima facie case of race discrimination. Second, the proctors’ disagreement about whether or not Johnson had removed the glove, along with his history of disagreement with one of the proctors, Dave Warren, provides reason to question the explanation the employer has proffered for the employment decision.
A consideration of these factors might lead a reasonable trier of fact to conclude that Johnson’s termination decision was motivated by race. We conclude, therefore, that the district court incorrectly granted summary judgment on Johnson’s claims under section 1981 and vacate and remand the matter to the district court.
It is not necessary to conduct a separate analysis of the state law claims, because the relevant standards under New York Executive Law § 296 mirror those for a section 1981 claim. Patane v. Clark, 508 F.3d 106, 113 (2d Cir.2007). In any event, the district court declined to exercise supplemental jurisdiction over these claims. See 28 U.S.C. § 1367(c) (district court may decline to exercise supplemental jurisdiction if it “has dismissed all claims over which it has original jurisdiction”). Since we conclude that the district court erred in dismissing the action, we also remand for consideration of the claims under the New York Executive Law.
For the reasons stated above, the judgment of the district court is VACATED AND REMANDED.
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SUMMARY ORDER
Petitioner Jingxu Dong, a native and citizen of the People’s Republic of China, seeks review of an April 13, 2009 order of the BIA affirming the April 12, 2007 decision of Immigration Judge (“IJ”) Steven R. Abrams denying his application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Jingxu Dong, No. A098 218 041 (B.I.A. Apr. 13, 2009), aff'g No. A098 218 041 (Immig. Ct. N.Y. City Apr. 12, 2007). We assume the parties’ familiarity with the underlying facts and procedural history in this case.
When the BIA affirms the IJ’s decision in all respects but one, this Court reviews the IJ’s decision as modified by the BIA decision. Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir.2005). Here, because the BIA affirmed the IJ’s determination that Dong failed to meet his burden of proof for asylum, it did not reach his arguments regarding the IJ’s adverse credibility determination. We assume Dong’s credibility for purposes of our analysis. See Yan Chen v. Gonzales, 417 F.3d 268, 271-72 (2d Cir.2005).
This Court reviews the agency’s factual findings under the substantial evidence standard. See 8 U.S.C. § 1252(b)(4)(B); see also Jian Hui Shao v. Mukasey, 546 F.3d 138, 157-58 (2d Cir.2008). We review de novo questions of law and the application of law to undisputed fact. Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.2008).
I. Asylum and Withholding of Removal
Substantial evidence supports the agency’s finding that Dong failed to meet his burden of proof for asylum. Dong argues that the financial hardship he endured as a minor because of his father’s death in a workplace dispute constitutes persecution. However, it is well settled that an applicant cannot establish past persecution by virtue of harm to a parent. Tao Jiang v. Gonzales, 500 F.3d 137, 141 (2d Cir.2007). Further, Dong’s case is factually distinct from Jorge-Tzoc v. Gonzales, 435 F.3d 146 (2d Cir.2006), on which Dong attempts to rely. Dong’s allegations of unfulfilled threats of arrest and detention also do not rise to the level of persecution. See Gui Ci Pan v. U.S. Att’y Gen., 449 F.3d 408, 412 (2d Cir.2006). Finally, the damage to Dong’s home had no nexus with a protected ground. See 8 U.S.C. *556§ 1101(a)(42); see also Yueqing Zhang v. Gonzales, 426 F.3d 540, 545 (2d Cir.2005).
Because Dong based his claim for withholding of removal on the same factual predicate as his asylum claim, the withholding of removal claim fails as well. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.2006).
II. CAT Relief
Dong bases his claim for CAT relief on the threats of detention he received from government officials and on U.S. State Department reports indicating that Chinese police sometimes torture detainees and prisoners. However, “generalized language culled from ... State Department reports” is insufficient to establish that a specific Chinese citizen “is more likely than not” to be tortured if repatriated. Mu Xiang Lin v. U.S. Dep’t of Justice, 432 F.3d 156, 159-60 (2d Cir.2005). Rather, an applicant must produce “particularized evidence” suggesting that he is likely to be tortured. See id. at 158. Here, Dong failed to present any specific evidence that he would likely be tortured if returned to China.
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
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SUMMARY ORDER
Petitioner Tatyana Voynova, a citizen of Russia, seeks review of an April 13, 2009 order of the BIA denying her motion to reopen her removal proceedings. In re Tatyana Voynova, No. A075 559 664 (B.I.A. Apr. 13, 2009). We assume the parties’ familiarity with the underlying facts and procedural history of the case.
We review the BIA’s denial of a motion to reopen for abuse of discretion. See Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir.2006). An alien who has been ordered removed may file one motion to reopen, but must do so within 90 days of the final administrative decision. 8 U.S.C. § 1229a (c)(7)(C)(i). Here, the BIA properly denied Voynova’s motion to reopen as untimely where she filed it over six years after her March 2002 final order of removal. See id.; 8 C.F.R. § 1003.2(c)(2).
The 90-day filing deadline may be equitably tolled when the motion to reopen is based on a claim of ineffective assistance of counsel. See Cekic v. INS, 435 F.3d 167, 170 (2d Cir.2006). However, the movant must show that she exercised due diligence during the period she sought to toll. See id. In denying Voynova’s motion, the BIA reasonably found that she failed to demonstrate that she exercised such diligence. Although Voynova argued that she received ineffective assistance of counsel, she did not assert when she discovered that her prior attorney’s legal advice constituted ineffective assistance or what steps she took during the six years that followed the agency’s final order of removal. Accordingly, because Voynova provided no arguments or evidence demonstrating her due diligence, the agency did not abuse its discretion in rejecting her ineffective assistance of counsel claim. See Jian Hua Wang v. BIA, 508 F.3d 710, 715-16 (2d Cir.2007). To the extent that Voynova offers new arguments before this Court as to how she exercised due diligence, we will not review those unex-hausted arguments in the first instance, particularly because the Government raises exhaustion as an affirmative defense. See Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 123-24 (2d Cir.2007).
Although Voynova argues that this Court’s holding in Mahmood v. Holder, 570 F.3d 466 (2d Cir.2009), warrants a remand to the BIA, Mahmood is distinguishable from this case. Our concern in Mahmood was that the BIA declined to *558exercise its sua sponte authority because it was under the mistaken impression that, as a matter of law, it could not. Mahmood, 570 F.3d at 471 (citing Dada v. Mukasey, - U.S. -, 128 S.Ct. 2307, 171 L.Ed.2d 178 (2008)). Here, to the contrary, the BIA declined to exercise its discretion to reopen Voynova’s case because she “ha[d] not provided sufficient evidence,” not based on any erroneous legal assumption. Thus, we are without jurisdiction to review the agency’s “entirely discretionary” refusal to reopen Voynova’s proceedings sua sponte. Ali, 448 F.3d at 518.
Finally, we lack jurisdiction to review Voynova’s challenges to the BIA’s March 2002 decision because she did not file a timely petition for review of that decision. Kaur v. BIA, 413 F.3d 232, 233 (2d Cir.2005).
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
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SUMMARY ORDER
Plaintiff-Appellant George Graves (“Graves”) appeals from an order of the United States District Court for the Northern District of New York (Sharpe, J.) entered March 27, 2009, granting summary judgment to Defendant-Appellee Finch Pruyn & Company, Inc. (“Finch”) on Graves’s claim of disability discrimination under the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12112(a). We summarized the facts of the underlying dispute in our previous opinion in this case, Graves v. Finch Pruyn & Co., Inc., 457 F.3d 181 (2d Cir.2006) (“Graves /”). In that opinion, we determined that a material issue of fact existed as to whether Graves requested an unpaid leave of absence from his job with Finch for two weeks to obtain an appointment with an orthopedic surgeon, Dr. William O’Connor, for an examination of his foot. Graves I, 457 F.3d at 184-86. We remanded to the district court indicating that Finch should be allowed to move for summary judgment on the question of whether the accommodation Graves sought provided “insufficient assurance of Graves’s successful return to work.” Id. at 186 n. 6. The district court determined that the two weeks unpaid leave sought by Graves was not a reasonable accommodation given Finch’s prior accommodations of Graves, because Graves had made no showing that *560the accommodation would likely result in his return to work, and because Graves’s further absence would cause Finch a business hardship. Graves v. Finch Pruyn & Co., Inc., No. 1:03-CV-266, 2009 WL 819380, at *1 (N.D.N.Y. Mar. 27, 2009). We are now faced with the question whether Graves has shown that granting him the requested leave time would have been a “reasonable accommodation” that allowed him to perform the essential functions of his job as a paper inspector. Graves I, 457 F.3d at 185.
“We conduct de novo review of the district court’s award of summary judgment, construing the evidence in the light most favorable to the non-moving party.” Rodal v. Anesthesia Group of Onondaga, P.C., 369 F.3d 113, 118 (2d Cir.2004). Summary judgment is appropriate where there is no genuine dispute as to any material fact and the record as a whole indicates that no rational factfinder could find in favor of the non-moving party. Id.; Lovejoy-Wilson v. NOCO Motor Fuel, Inc., 263 F.3d 208, 212 (2d Cir.2001). We examine claims of disability discrimination brought under the AJDA according to the burden-shifting analysis established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). A plaintiffs initial burden is to produce evidence showing a prima facie case of disability discrimination. Graves I, 457 F.3d at 183-84. This burden requires a plaintiff to show that:
(1) plaintiff is a person with a disability under the meaning of the ADA; (2) an employer covered by the statute had notice of his disability; (3) with reasonable accommodation, plaintiff could perform the essential functions of the job at issue; and (4) the employer has refused to make such accommodations.
Rodal, 369 F.3d at 118; see also 42 U.S.C. § 12111(8) (defining a “qualified individual” with a disability as “an individual who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.”). The only issue in this appeal is the third prong of this test, whether Graves made a prima facie showing that with reasonable accommodation he could perform the essential functions of his job. It is undisputed that without accommodation, at the time of his leave request Graves could not perform the essential functions of a paper inspector, which included standing on his feet for long periods of time and lifting and pushing large rolls of paper. Graves I, 457 F.3d at 184; Gi-aves, 2009 WL 819380, at *1.
We have never expressly held that leaves of absence from an employee’s job taken in order to recover from the employee’s disability are “reasonable accommodations” under the ADA. Even assuming that they can be under certain circumstances, however, they must enable the employee to perform the essential functions of his job. See 42 U.S.C. § 12111(8); Rodal, 369 F.3d at 120. Moreover, the employee must make a showing that the reasonable accommodation would allow him to do so at or around the time at which it is sought. See Myers v. Hose, 50 F.3d 278, 283 (4th Cir.1995) (“[Treasonable accommodation is by its terms most logically construed as that which presently, or in the immediate future, enables the employee to perform the essential functions of the job in question.”); cf. McBride v. BIG Consumer Prods. Mfg. Co., 583 F.3d 92, 97-98 (2d Cir.2009) (plaintiff claiming that reassignment was reasonable accommodation must demonstrate that vacant position existed at or within a reasonable amount of time after accommodation was sought).
We conclude that Graves failed to make a prima facie case that his requested *561accommodation of two weeks’ unpaid leave in order to consult with Dr. O’Connor was reasonable because he made no showing that Finch at the time of the request had any assurance whatsoever that the accommodation would allow Graves to perform the essential functions of his job. Finch focuses on the January 10, 2001 report of one of Graves’s doctors, David G. Welch, which indicated that Graves would not be able to return to his job “in the foreseeable future” and declared that “[Graves] is totally incapable of performing his job as a paper inspector.” J.A. 29-30. Graves testified, however, that this report was made in order to allow him to qualify for a disability retirement option, and that Finch’s Director of Human Resources, Michael Strich, had told him on January 4 to have a doctor state that Graves was totally disabled in order to qualify. A reasonable jury could find that the January 10 report, therefore, did not accurately state whether Graves was “qualified” to “perform the essential functions” of his job with a reasonable accommodation.
However, Dr. Welch’s January 4, 2001 report, which was sent to Strich, indicated unequivocally that “it is unlikely that [Graves] will be able to return to his previous occupation.” J.A. 27. With regards to consulting Dr. O’Connor, Dr. Welch indicated that even with surgery “it is likely that it will take another two to three months of recovery following such surgery before [Graves] could return to any kind of gainful employment” and that even if such recovery took place, “there will probably [be] some restrictions in the amount of standing, walking, lifting, and carrying that he can do.” Id. Although Graves points to other statements of his doctors indicating that consulting Dr. O’Connor might in general be helpful, Dr. Welch’s report gave no assurance at all that the results of that consultation would allow Graves to continue performing his job. Moreover, that Dr. O’Connor was able to treat Graves’s disability Graves’s retirement date of February 1, 2001, on which Graves relies heavily, is irrelevant to the question of whether the accommodation was reasonable at the time it was sought. See McBride, 583 F.3d 92, at 97-98; Jackan v. N.Y. Dep’t of Labor, 205 F.3d 562, 567 (2d Cir.2000). We therefore conclude that the evidence as a whole did not give Finch any assurance that Graves’s requested accommodation would allow him to perform the essential functions of his job.
Graves’s attempts to avert this conclusion are unavailing. First, he contends that Finch, by rejecting his suggested accommodation without investigation, failed sufficiently to engage in an interactive process to find an accommodation that would allow Graves to continue working. Even assuming that Finch did not engage in the interactive process, however, we recently held that an employee may not rely on a company’s failure to engage in an interactive process if he cannot also make a prima facie showing that a reasonable accommodation existed at the time of the adverse employment action. McBride, 583 F.3d 92, at 99-101. Second, Graves contends that Dr. Welch’s reports are inadmissible hearsay. This is incorrect: the medical reports were offered (by both sides) to prove Finch’s state of mind when it considered Graves’s requested accommodation. See Capobianco v. City of New York, 422 F.3d 47, 55-56 (2d Cir.2005).
We have considered Graves’s remaining arguments and find them to be without merit. For the foregoing reasons, the judgment of the district court is hereby AFFIRMED.
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SUMMARY ORDER
Plaintiffs-appellants Anuj and Dina Gupta (“plaintiffs”) appeal from the February 10, 2009 judgment of the District Court granting the motion to dismiss of defendant-appellee Great Northern Insurance Company (“Great Northern”). On appeal plaintiffs argue that the District Court erred in concluding that the insurance policy issued to plaintiffs by Great Northern unambiguously excluded coverage of the automobile accident at issue in this case. We assume the parties’ familiarity with the facts and procedural history of the case.
We have reviewed plaintiffs’ claim and find it to be without merit. Substantially for the reasons stated in the February 6, 2009, 2009 WL 291011, ruling of the District Court, the February 10, 2009 judgment of the District Court is AFFIRMED.
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SUMMARY ORDER
Petitioner Chun Hong, a native and citizen of the People’s Republic of China, seeks review of an August 31, 2007 order of the BIA denying his third motion to reopen. In re Chun Hong, No. A070 905 783 (B.I.A. Aug. 31, 2007). We assume the parties’ familiarity with the underlying facts and procedural history in this case.
We review the BIA’s denial of a motion to reopen for abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir.2006). When the BIA considers relevant evidence of country conditions in evaluating a motion to reopen, we review the BIA’s factual findings under the substantial evidence standard. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir.2008).
The BIA did not err in denying Hong’s motion to reopen as untimely and number-barred. See 8 U.S.C. § 1229a(c)(7)(C); see also 8 C.F.R. § 1003.2(c)(2). Hong argues that the BIA erred in concluding that the evidence he submitted failed to demonstrate either material changed country conditions sufficient to excuse the applica*565ble time and numerical limitations or his prima facie eligibility for relief from removal. However, these arguments fail because we have previously reviewed the BIA’s consideration of evidence similar to that which Hong submitted and have found no error in its conclusion that such evidence is insufficient to establish material changed country conditions or a reasonable possibility of persecution. See Jian Hui Shao, 546 F.3d at 169-72 (noting that “[w]e do not ourselves attempt to resolve conflicts in record evidence, a task largely within the discretion of the agency”); see also Wei Guang Wang v. BIA, 437 F.3d 270, 275 (2d Cir.2006) (noting that while the BIA must consider evidence such as “the oft-cited Aird affidavit, which [it] is asked to consider time and again[,] ... it may do so in summary fashion without a reviewing court presuming that it has abused its discretion”).
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
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SUMMARY ORDER
Respondent-Appellant appeals from a Memorandum and Order of the United States District Court for the Southern District of New York (Buchwald, J.), entered March 31, 2009, 2009 WL 857625, granting the Petitioner-Appellee Rohan Brown’s petition for a writ of habeas corpus. Brown sought a writ on the ground that it would have been futile for him to argue at his state trial that the evidence adduced was insufficient to support a conviction for depraved indifference murder given the definition of that offense controlling in New York courts at the time, and therefore he had shown cause for his procedural default. We assume the parties’ familiarity with the underlying facts and procedural history of the case.
This Court reviews a district court’s ruling on a habeas petition de novo. Thibodeau v. Portuondo, 486 F.3d 61, 64 (2d Cir.2007). Federal habeas review is barred if the constitutional claim was denied by a state court on a state procedural ground that is both “independent of the merits of the federal claim and an adequate basis for the court’s decision.” Harris v. Reed, 489 U.S. 255, 260, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989) (internal quotation marks omitted).
*520The due process guaranteed by the Fourteenth Amendment ensures that no person shall be convicted of a crime except upon sufficient proof. Jackson v. Virginia, 443 U.S. 307, 316, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). In New York, an objection to the legal sufficiency of the evidence is presented to the court in a motion to dismiss. People v. Thomas, 36 N.Y.2d 514, 516, 369 N.Y.S.2d 645, 330 N.E.2d 609 (1975). New York’s contemporaneous objection rule requires that a litigant object during the trial in order to preserve an issue for appeal. N.Y.Crim. Proc. Law § 470.05(2). This Court has held that the application of New York’s contemporaneous objection rule may bar federal habeas review. Garcia v. Lewis, 188 F.3d 71, 79 (2d Cir.1999).
Federal courts, however, “are empowered under 28 U.S.C. § 2254 to look beyond a state procedural forfeiture and entertain a state prisoner’s contention that his constitutional rights have been violated.” Reed v. Ross, 468 U.S. 1, 9, 104 S.Ct. 2901, 82 L.Ed.2d 1 (1984). Before the habeas court will consider the merits of a federal claim, the prisoner must demonstrate cause for his state-court default and prejudice from it. House v. Bell, 547 U.S. 518, 536, 126 S.Ct. 2064, 165 L.Ed.2d 1 (2006).
The Supreme Court has explained that futility cannot constitute cause for procedural default “if it means simply that a claim was unacceptable to that particular court at that particular time.” Bousley v. United States, 523 U.S. 614, 623, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998) (internal quotation marks omitted); see also Jones v. Keane, 329 F.3d 290, 295 (2d Cir.2003) (“It is well established that a petitioner may not bypass state courts merely because they may be unreceptive to the claim.”).
Only a few years ago this Court held, in DiSimone v. Phillips, 461 F.3d 181 (2d Cir.2006), that the futility argument advanced by a similarly-situated habeas petitioner failed because, at the time of the his trial in 2001, “New York state courts had not consistently rejected” the claim that a conviction for depraved indifference murder was unsupported by the evidence. Id. at 191. The facts of DiSimone are, for all purposes relevant to this appeal, identical to those presented here. In addition, from 2001 to the time of Brown’s trial in 2003 the New York appellate courts reversed two depraved indifference murder convictions on the grounds that the evidence was legally insufficient. People v. Hafeez, 100 N.Y.2d 253, 258-59, 762 N.Y.S.2d 572, 792 N.E.2d 1060 (2003); People v. Gonzalez, 302 A.D.2d 870, 871-72, 755 N.Y.S.2d 146 (N.Y.App.Div.2003).
Accordingly, under the controlling precedent of this Court, Brown cannot prevail on his claim that it would have been futile for him to argue at trial that the evidence adduced was insufficient to support a conviction. The District Court distinguished DiSimone on the grounds that it presented the question of whether it would have been futile for petitioner’s appellate counsel to argue legal insufficiency, whereas the case before us involves procedural default at trial. Brown v. Ercole, No. 07-Civ.-11609, 2009 WL 857625, at *6 n. 5 (S.D.N.Y. Mar.31, 2009). Given that New York appellate courts are equally bound by New York Court of Appeals precedent, see People v. Jackson, 46 A.D.3d 1110, 1111, 847 N.Y.S.2d 743 (N.Y.App.Div.2007), we find that the holding of DiSimone is fully applicable to the present case.
Because Brown has not shown cause for the procedural default of his constitutional claim, we need not consider whether he suffered prejudice. We have considered Brown’s other arguments and find them to be without merit, though he may have *521redress in state court for claims we do not address here.
Accordingly, we REVERSE the District Court’s grant of Brown’s habeas petition and REMAND with directions to dismiss the petition.
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SUMMARY ORDER
Sucurija Tafovic, a native and citizen of Montenegro,1 seeks review of a March 5, 2009 order of the BIA, affirming the October 18, 2006 decision of Immigration Judge (“IJ”) Philip L. Morace, which denied his application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Sucurija Tafovic, No. A077 322 694 (B.I.A. Mar. 5, 2009), aff'g No. A077 322 694 (Immig. Ct. N.Y. City Oct. 18, 2006). We assume the parties’ familiarity with the underlying facts and procedural history in this case.
When the BIA does not expressly “adopt” the IJ’s decision, but its brief opinion closely tracks the IJ’s reasoning, the Court may consider both the IJ’s and the BIA’s opinions “for the sake of completeness.” Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir.2008). We review the agency’s factual findings under the substantial evidence standard. See 8 U.S.C. § 1252(b)(4)(B); Corovic v. Mukasey, 519 F.3d 90, 95 (2d Cir.2008). We review de novo questions of law and the application of law to undisputed fact. Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.2008).
We find no error in the agency’s denial of Tafovic’s application for asylum and withholding of removal. The BIA properly concluded that Tafovic did not suffer past persecution at the hands of “boat patrol” officers. See Beskovic v. Gonzales, 467 F.3d 223, 226 n. 3 (2d Cir.2006); Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d 332, 341 (2d Cir.2006); Matter of T-Z-, 24 I. & N. Dec. 163, 170-71 (BIA 2007). As the government concedes, however, the agency likely erred in finding that Tafovic failed to establish past persecution when he resisted conscription into the Serbian military. See Islami v. Gonzales, 412 F.3d 391, 397 (2d Cir.2005). Yet, even if we were to find that the agency erred in determining that Tafovic did not establish past persecution, such error would not warrant remand because the agency offered a valid alternative basis for its denial of relief. See 8 C.F.R. § 1208.13(b)(l)(i); see also Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 338 (2d Cir.2006).
Substantial evidence supports the IJ’s conclusion that “there has been a fundamental ... significant change in country conditions .... [and] that there would be little likelihood of persecution to the respondent if he were to return to Montenegro at this time.” In support of that finding, the IJ relied on the 2005 U.S. Department of State Report on Human Rights Practices, which indicates that Montenegro is independent from Serbia, *523and that the government generally respects the human rights of its citizens. The IJ further noted that Montenegro has passed amnesty laws exempting persons such as Tafovic from prosecution for evasion of military service. This evidence was ample support for the agency’s Ending of a fundamental change in circumstances. See Hoxhallari v. Gonzales, 468 F.3d 179, 187-88 (2d Cir.2006); cf. Alibasic v. Mukasey, 547 F.3d 78, 81-82 (2d Cir.2008). Finally, the IJ reasonably noted Tafovic’s testimony that authorities have not looked for him since 2000 and that his parents and three sisters are able to live in Montenegro without suffering persecution. See Melgar de Torres v. Reno, 191 F.3d 307, 313 (2d Cir.1999). These facts support the agency’s conclusion that Tafovic’s fear of persecution was not objectively well-founded.
Because Tafovic was unable to show the objective likelihood of persecution needed to make out an asylum claim, he was necessarily unable to meet the higher standard required to succeed on a claim for withholding of removal. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.2006); Gomez v. INS, 947 F.2d 660, 665 (2d Cir.1991). Tafovic does not challenge the agency’s denial of his request for CAT relief.
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
. Although the agency originally designated Tafovic as a native and citizen of Yugoslavia, he was ordered removed to Montenegro.
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