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https://www.courtlistener.com/api/rest/v3/opinions/8475264/
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ORDER
In September 2007, Timothy A. Brown asked his girlfriend, Annie Bell, to rent a car for him to drive to Las Vegas, NV, so that he could shop for a dump truck for his business. Bell used her credit card to rent a sport-utility vehicle (“SUV”) from a car rental company in Austintown, OH. Bell gave Brown the keys to the automobile and permission to drive it to Las Vegas, even though she was the only authorized driver listed in the rental agreement. Brown drove to Las Vegas and then to California. On his return trip to Ohio, Illinois State Police Trooper Andrew Fratzke pulled Brown over for speeding. Brown presented the trooper with his driver’s license and the rental agreement for the SUV and told him that he was on his way back from Las Vegas. Trooper Fratzke returned to his squad car and ran a check on Brown’s license and the automobile’s plates. The license check revealed that Brown had previous drug offenses. Trooper Fratzke prepared a written warning for the speeding infraction and walked back to the SUV. He then asked Brown to step to the front of the vehicle to sign the warning, after which Trooper Fratzke returned Brown’s driver’s license and the rental agreement. During the next minute, Trooper Fratzke commented that it didn’t make sense that Brown would travel from Ohio to Las Vegas, stay only a day or two, and then drive back. He also asked Brown if he had any illegal narcotics in the automobile (Brown said he did not) and requested permission to walk Viper, a drug-detection dog, around the perimeter of the SUV. After receiving Brown’s consent,1 Trooper Fratzke began walking Viper around the automobile. Two minutes later, Viper alerted to the scent of narcotics at the rear bumper of the SUV. Trooper Fratzke then searched the back of the vehicle, found seventeen kilos of cocaine and one pound of marijuana, and arrested Brown.
Subsequently, a grand jury indicted Brown for possession with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1). Brown filed a motion to suppress the evidence discovered during the traffic stop, which the district court denied following a hearing. The court held that Brown lacked “standing” to prosecute the motion. Alternatively, assuming Brown had “standing,” the court held that the length of his detention was reasonable and found that he had consented to the dog sniff. Brown then entered a guilty plea to the charged offense but reserved his right to appeal the denial of his motion to suppress. The district court sentenced Brown to 240 months’ imprisonment. Brown appeals the district court’s denial of his motion to suppress.
*38On appeal, Brown argues that the district court erred in holding that the length of his detention by Trooper Fratzke was reasonable and in finding that he consented to the dog sniff.2 In examining a district court’s ruling on a motion to suppress, we review its legal conclusions de novo and its factual determinations for clear error. United States v. Booker, 579 F.3d 835, 838 (7th Cir.2009).
The Fourth Amendment protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const, amend. IV. “Temporary detention of individuals during the stop of an automobile by the police, even if only for a brief period and for a limited purpose, constitutes a ‘seizure’ of ‘persons’ within the meaning of [the Fourth Amendment].” Whren v. United States, 517 U.S. 806, 809-10, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996). The stop of an automobile is reasonable for Fourth Amendment purposes, however, where “police have probable cause to believe that a traffic violation has occurred.” Id. at 810, 116 S.Ct. 1769.
Brown does not dispute that Trooper Fratzke had probable cause to stop him for speeding. Rather, he contends that the purpose of the stop was completed when Trooper Fratzke issued the written warning and returned to him his driver’s license and the rental agreement. He argues that he then was illegally detained when Trooper Fratzke proceeded to comment on the unusual nature of his trip to Las Vegas, asked whether there were any illegal narcotics in the car, and requested permission to conduct a dog sniff. But our opinion in United States v. Childs, 277 F.3d 947 (7th Cir.2002) (en banc), dooms that argument. In Childs, we observed that because traffic stops based on probable cause are arrests, the Fourth Amendment does not mandate the release of such arrestees at the earliest possible moment. 277 F.3d at 953-54. Rather, the reasonableness of the detention is the constitutional touchstone, and police properly may ask crime-detecting questions that create little or no inconvenience to the arrestee, even if such queries are unrelated to the purpose of the stop and are unsupported by any suspicion. Id. at 954 (citing Ohio v. Robinette, 519 U.S. 33, 117 S.Ct. 417, 136 L.Ed.2d 347 (1996)). Here, the video of the stop shows that Trooper Fratzke’s comment about the peculiarity of Brown’s quick trip to Las Vegas, question about whether there were illegal narcotics in the SUV, and request to conduct a dog sniff all transpired in less than one minute after he issued the warning to Brown and returned *39his driver’s license and the rental agreement. Brown’s detention was reasonable because those questions were minimally (if at all) inconvenient and only briefly extended the length of the stop. Accordingly, the detention did not violate the Fourth Amendment.
Brown also contends his Fourth Amendment rights were violated because he never consented to extension of his detention so that Trooper Fratzke could conduct the dog sniff. Trooper Fratzke, however, testified at the suppression hearing that Brown did give his consent. And on the video of the stop, although barely discernible, Brown’s response to Trooper Fratzke’s consent request is in the affirmative. In addition, Trooper Fratzke’s words following Brown’s response are clearly audible and consistent with Brown having consented.3 Hence, we see no clear error in the district court’s finding that Brown consented to the dog sniff and the concomitant additional detention. The drug-detection dog’s alert to narcotics provided probable cause to search the SUV. United States v. Carpenter, 406 F.3d 915, 916 (7th Cir.2005). Therefore, the drugs Trooper Fratzke found in the SUV were discovered pursuant to a lawful search. Accordingly, the district court properly denied Brown’s motion to suppress. AFFIRMED.
. Brown claimed in the district court and repeats on appeal that he did not consent to the sniff.
. Brown also contends that the district court erred in concluding he lacked “standing" to bring the motion to suppress. (We note that the Supreme Court has rejected the use of the standing rubric to describe a person’s legitimate expectation of privacy in the place searched. Minnesota v. Carter, 525 U.S. 83, 87-88, 119 S.Ct. 469, 142 L.Ed.2d 373 (1998) (citing Rakas v. Illinois, 439 U.S. 128, 139-40, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978))). There is a division among the courts of appeals regarding whether the driver of a rental vehicle, who is not listed as an authorized driver on the rental agreement but has the permission of the authorized driver to use the vehicle, has a legitimate expectation of privacy in the automobile that is protected by the Fourth Amendment. Compare United States v. Wellons, 32 F.3d 117, 119 (4th Cir.1994) (no), United States v. Boruff, 909 F.2d 111, 117 (5th Cir.1990) (no), and United States v. Obregon, 748 F.2d 1371, 1375 (10th Cir.1984) (no), with United States v. Thomas, 447 F.3d 1191, 1199 (9th Cir.2006) (yes), and United States v. Best, 135 F.3d 1223, 1225 (8th Cir.1998) (suggesting the answer is "yes”); see also United States v. Smith, 263 F.3d 571, 586 (6th Cir.2001) (eschewing a bright-line approach in favor of a totality-of-the-circumstances analysis). But we need not choose a side on this issue because even assuming that Brown did have a legitimate expectation of privacy in the SUV, we ultimately conclude that the search of the SUV was lawful.
. Brown does not explicitly argue that his consent, even if given, was involuntary under the totality of the circumstances. Schneckloth v. Bustamonte, 412 U.S. 218, 248-49, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). Even if his contention that he did not consent could be understood to raise that argument, our review of the entire record reveals no basis for such a finding.
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ORDER
Federal prisoner John Perotti lost a total of 80 days’ good time after prison authorities concluded that he fought with another inmate and, in a separate incident, swore at a staff member. He petitioned for a writ of habeas corpus, see 28 U.S.C. § 2241, challenging both disciplinary decisions, and the district court dismissed the petition. We affirm the judgment.
The first incident occurred in November 2007. Perotti received an incident report charging him with fighting and possessing a weapon. See 28 C.F.R. § 541.13, tbl. 3, Codes 201,104. The guard who drafted the incident report was not an eyewitness to the altercation, but a surveillance camera captured on tape the confrontation between Perotti and the other inmate. The footage, according to the guard’s report, shows the other inmate start the fight by swinging a broomstick at Perotti, who responded with a punch to the face. According to the guard, Perotti then gained control of the broomstick, tossed it over a railing to the floor below, and, after a brief retreat to his cell, chased his antagonist with a shank (a homemade knife) in each hand. When Perotti turned his back momentarily, the other man threw a trash can at him. Another chase ensued, and, according to the reporting guard, Perotti managed to dispose of the shanks in a shower stall just before staff broke up the fight. Perotti suffered bruises, a fracture to his left arm, and lacerations requiring stitches above each eye.
The following month Perotti appeared before a disciplinary hearing officer, who concluded that Perotti had committed the charged acts and sanctioned him with the *41loss of 27 days of good time for fighting and another 40 days for possessing a weapon. Although a staff member had been appointed to represent Perotti at the hearing, the employee did not meet with him or help him procure witnesses. And neither Perotti nor the representative was permitted to review the surveillance footage. Perotti pointed out these alleged deficiencies in an administrative appeal, and a rehearing was ordered.
At the rehearing in March 2008, Perotti insisted that he acted in self-defense and that the alleged shanks were actually rolled-up magazines. This time his staff representative (a different employee than before) was allowed to watch the surveillance footage, though Perotti was not. By the time of the rehearing, however, the three witnesses Perotti had hoped to call had been released to halfway houses. Perotti complains that his representative would not contact them for him and that prison administrators refused to produce them for the hearing or give him their full names and addresses so that he could obtain written statements from them. The healing officer again concluded that Perot-ti had committed the alleged violations. The officer noted in his decision that he had watched the surveillance footage and observed Perotti holding in his right hand a sharpened object roughly seven inches long while trying to stab the other inmate in the face and torso. The hearing officer again revoked a total of 67 days of good time.
In the meantime, Perotti had been charged in February 2008 with insolence after allegedly swearing at a counselor. See 28 C.F.R. § 541.13, tbl. 3, Code 312. A different hearing officer conducted the proceedings on that infraction immediately after the rehearing on the charges of fighting and possession of a weapon. Perotti’s staff representative for the fighting and weapons charges did not realize that she was also assigned to represent him on the insolence charge. She thus had not prepared for the latter hearing, but the hearing officer refused to postpone the proceeding. The hearing officer also refused Perotti’s request that he recuse himself because his wife, another prison employee, had previously reported Perotti for insolence, a charge which Perotti says was dismissed “as being without foundation.” The hearing officer found Perotti guilty and revoked an additional 13 days of good time.
We review de novo the district court’s denial of Perotti’s § 2241 petition. See Parsons v. Pitzer, 149 F.3d 734, 736 (7th Cir.1998). Federal inmates have a liberty interest in their earned good time, and Perotti thus was entitled to due process before any time could be revoked. See Brooks-Bey v. Smith, 819 F.2d 178, 180 (7th Cir.1987). Due process in this context requires that the prisoner receive advance written notice of the charges, an opportunity to present evidence to an impartial decisionmaker, and a written explanation for the discipline that is supported by “some evidence.” Superintendent, Mass. Corr. Inst., Walpole v. Hill, 472 U.S. 445, 455, 105 S.Ct. 2768, 86 L.Ed.2d 356 (1985); Wolff v. McDonnell, 418 U.S. 539, 564, 566, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974).
Focusing first on the fighting/weapons charges, Perotti argues that he was denied due process because he could not make use of the surveillance footage nor could he contact the three witnesses in the halfway houses. Although his staff representative watched the videotape, Perotti asserts that she was not allowed to discuss the footage at the hearing and he was not allowed to question her about it. The missing inmates, he says, would have corroborated his claim of self-defense.
*42Perotti is mistaken, however, about the extent of his right to have direct access to evidence. A prisoner’s access to specific evidence or witnesses may be restricted if it would be “unduly hazardous to institutional safety or correctional goals,” Wolff, 418 U.S. at 566, 94 S.Ct. 2963; Piggie v. McBride, 277 F.3d 922, 924 (7th Cir.2002), or when the evidence or testimony would be irrelevant or repetitive, Scruggs v. Jordan, 485 F.3d 934, 939-40 (7th Cir.2007); Pannell v. McBride, 306 F.3d 499, 503 (7th Cir.2002). The evidence that Perotti wanted would not have helped his claim of self-defense. No one disputes that the other inmate started the fight by swinging a broomstick at Perotti. And Perotti has never denied that he chased his antagonist after knocking the broomstick out of reach; he did not try instead to alert a guard or to defuse the situation in some other way. The hearing officer observed the entire sequence of events as captured in the footage and concluded that, no matter who started the fight, Perotti’s subsequent actions were not entirely defensive. Moreover, even if Perotti had acted only in self-defense, the hearing officer still would have been within his discretion to sanction Perotti for fighting because there is no constitutional right to self-defense in a prison setting. See Scruggs, 485 F.3d at 938-39; Rowe v. DeBruyn, 17 F.3d 1047, 1052-53 (7th Cir.1994).
Perotti’s challenges to the loss of good time on the charge of possessing a weapon are also unavailing. He has presented a simple credibility question: was the hearing officer compelled to find, as Perotti insisted, that Perotti held only rolled-up magazines, or was the hearing officer entitled to believe what he saw in the surveillance video, which depicted Perotti chasing his antagonist while trying to stab him with what appeared to be a sharp, seven-inch object. A hearing officer may resolve competing stories so long as some evidence supports the decision, Johnson v. Finnan, 467 F.3d 693, 695 (7th Cir.2006), and this footage was more than enough to support the conclusion that Perotti possessed a weapon.
Perotti thinks that the hearing officer might have decided the question differently if Perotti had been allowed to make greater use of the video, but he has never explained how this is so, especially given the fact that the hearing officer personally viewed the videotape. We cannot see how permitting Perotti to question his staff representative about the same video would have changed anything. See White v. Ind. Parole Bd., 266 F.3d 759, 768 (7th Cir.2001).
Next, although Perotti alleges in his § 2241 petition that the three halfway-house witnesses would have testified that Perotti “did not have two knives during the altercation,” that was not his contention during the administrative proceedings. Until he filed his petition, his position was that the witnesses would testify that he acted in self-defense. We are troubled by the government’s contention that witnesses in BOP custody need not be made available, either for live testimony or to produce written statements, simply because they have been assigned to halfway houses. See 28 C.F.R. § 541.17(c) (instructing that hearing officer should call witnesses who are “reasonably available,” including those from outside institution, and request written statements from unavailable witnesses with relevant information); Moscato v. Federal Bureau of Prisons, 98 F.3d 757, 762 n. 9 (3d Cir.1996) (resolving case on other grounds but expressing discomfort with government’s characterization of witnesses transferred to other facilities as categorically “unavailable”); Forbes v. Trigg, 976 F.2d 308, 317 (7th Cir.1992) (explaining that rules categorically barring certain classes of witnesses are unconstitu*43tional). But the extent of the government’s responsibility in that respect is not important here. Perotti may not recharacterize the nature of the proposed witnesses’ testimony to bolster his § 2241 petition, and so we need not address the issue.
That leaves Perotti’s challenges to the disciplinary hearing on the insolence charge. The district court did not address Perotti’s specific arguments about that hearing. The government invites us to remand this portion of the § 2241 petition, but we see no need for a remand, since the record is developed enough to permit review now. See Books v. Chater, 91 F.3d 972, 978 (7th Cir.1996) (explaining that, if correct resolution of appeal is clear, remand needlessly prolongs case without contributing to correct outcome); DiLeo v. Ernst & Young, 901 F.2d 624, 626 (7th Cir.1990) (same).
Perotti’s primary challenge to the insolence proceeding is his allegation that the hearing officer was biased against him. The reason, Perotti contends, is that the officer’s wife, another prison employee, had previously filed an insolence charge against Perotti that was dismissed as unfounded. (Perotti further asserted in his § 2241 petition that the officer’s wife had been “reprimanded” for filing a false disciplinary charge, but he did not make that allegation in his administrative appeal and has abandoned that characterization before this court.) An inmate facing disciplinary charges has the right to an impartial decisionmaker. Wolff, 418 U.S. at 571, 94 S.Ct. 2963. But “the constitutional standard for impermissible bias is high,” Piggie v. Cotton, 342 F.3d 660, 666 (7th Cir.2003), and an adjudicator is entitled to a presumption of “honesty and integrity” absent clear evidence to the contrary, see Withrow v. Larkin, 421 U.S. 35, 47, 95 S.Ct. 1456, 43 L.Ed.2d 712 (1975). Due process requires disqualification of a decisionmaker who was directly or substantially involved in the underlying incident, Gaither v. Anderson, 236 F.3d 817, 820 (7th Cir.2000), and we have assumed that a decisionmaker might likewise be impermissibly biased if his spouse is a crucial witness in the proceeding, see Eads v. Hanks, 280 F.3d 728, 729 (7th Cir.2002). A hearing officer is not automatically deemed biased, however, simply because he adjudicated or was involved in a previous disciplinary charge against the prisoner. See Piggie, 342 F.3d at 666-67; Pannell, 306 F.3d at 502. And if his own involvement in a prison disciplinary matter would not have disqualified the hearing officer, neither would his wife’s.
Perotti also asserts that he was denied effective assistance of his staff advocate because she was unable to prepare properly for the insolence hearing. A BOP regulation, 28 C.F.R. § 541.17(b), provides that a hearing officer “shall afford a staff representative adequate time to speak with the inmate and interview requested witnesses where appropriate.” But the regulation gives the hearing officer discretion to determine when advance investigation by a staff representative is necessary, and there is no evidence that the officer’s decision to proceed with Perotti’s hearing in the absence of such investigation was improper. Perotti has not alleged, for example, that he was prevented from gathering evidence on his own prior to the hearing, nor has he identified any specific witnesses he would have liked the staff representative to consult or explained what they would have said.
Finally, we note that Perotti alleged in his petition that he never received a written decision disposing of the insolence charge, and we do not see any such document in the record. Wolff requires the prison authorities to give such a statement *44to the prisoner. 418 U.S. at 564-65, 94 S.Ct. 2963. Perotti has not pressed this issue on appeal, however, and thus we have no need to decide whether the apparent absence of the statement of reasons has any effect on Perotti’s case.
Affirmed.
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https://www.courtlistener.com/api/rest/v3/opinions/8475274/
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ORDER
Jerome M. Wilson, a felon, moved to suppress a gun and drugs that were found in his possession during a traffic stop. When that failed, he pleaded guilty to firearm possession, and to possession with intent to distribute marijuana. See 18 U.S.C. § 922(g)(1); 21 U.S.C. § 841(a)(1). He was sentenced to 112 months’ imprisonment for the gun count, to be served concurrently with 60 months’ imprisonment for the drug count. Wilson filed a notice of appeal, but his appointed counsel moves to withdraw because he does not believe there are any nonfrivolous issues to raise. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Wilson did not accept our invitation to respond to his lawyer’s submission, see Cir. R. 51(b), so we limit our review to the potential issues identified in counsel’s facially sufficient supporting brief. See United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir.2002).
In September 2007 Sergeant Craig Rios stopped Wilson for speeding. According to Rios’s testimony at the suppression hearing, he smelled burnt marijuana when he approached Wilson’s car. Wilson gave Rios his driver’s license, which Rios used to perform a routine background check that revealed prior convictions for drug possession and disarming a police officer. *50Rios called for a drug dog, which was promptly brought in. After the dog detected the likely presence of illegal drugs, officers searched Wilson and in his shoe found about 20 grams of marijuana and some plastic bags of the kind often used by drug dealers. Another officer testified to finding an already-smoked “blunt” in the passenger console. A full search of the car revealed a handgun, ammunition, and more than 800 grams of marijuana.
At the suppression hearing, Wilson conceded the validity of the traffic stop but insisted that there was neither a “blunt” nor a marijuana smell, and that the police therefore violated the Fourth Amendment by detaining him while they waited for the dog. The district court credited the officers’ testimony and denied the suppression motion, explaining that the marijuana smell provided Sergeant Rios with probable cause to search the vehicle for drugs. Wilson subsequently entered a conditional guilty plea that preserved the suppression issue.
At sentencing the district court grouped the charges and calculated a total offense level of 26, which took into account both an upward adjustment for obstruction of justice and a downward adjustment for acceptance of responsibility. See U.S.S.G. §§ 3C1.1, 3D1.2(c), 3El.l(b). The court’s calculation relied upon the adjusted offense level for the firearm charge, which was higher (26) than the one for the drug charge (10). See U.S.S.G. § 3D1.3(a). Wilson’s criminal history category was V, yielding a guidelines range of 110-137 months. The district court selected 112 months, explaining that Wilson’s need for deterrence warranted a sentence slightly above the bottom of his guidelines range.
Counsel first considers whether Wilson could challenge the court’s decision not to grant his suppression motion, either by attacking Rios’s credibility or by contesting the existence of probable cause. But neither counsel nor we can identify anything in the transcripts that would lead us to disturb the district court’s credibility determination. See United States v. Stewart, 536 F.3d 714, 720 (7th Cir.2008). And as counsel observes, a burnt marijuana smell would provide sufficient probable cause for an immediate search. See United States v. Cherry, 436 F.3d 769, 772 (7th Cir.2006) (collecting cases). Although Rios therefore could have searched the car right away, there was nothing unreasonable about detaining Wilson until the dog could confirm or dispel his suspicion. See United States v. Martin, 422 F.3d 597, 602 (7th Cir.2005).
Next, counsel observes that Wilson does not wish to withdraw his conditional guilty plea, and thus rightly omits any discussion of the plea’s validity. See United States v. Knox, 287 F.3d 667 (7th Cir.2002).
Counsel then discusses whether Wilson might challenge five separate rulings that the district court made regarding his sentence. First, counsel asks whether Wilson could challenge the two-level adjustment for obstruction of justice, which he received for perjury. The court found that Wilson’s testimony was “knowingly false” and given in order “to mislead the Court,” and so it determined that Wilson’s false testimony was both material to the suppression motion and willful. Counsel therefore properly concludes that the district court’s findings encompass the factual predicates for a perjury charge, and that we would thus uphold the adjustment for obstruction of justice. See United States v. Savage, 505 F.3d 754, 763 (7th Cir.2007).
Second, counsel explores a potential argument that the district court engaged in “double counting” when it accounted for the firearm possession by increasing the adjusted offense level for the marijuana charge by two. See U.S.S.G. *51§ 2D1.1(b)(l). But counsel properly recognizes that no double counting took place. The district court grouped the marijuana and gun charges and then correctly used the offense level for the gun charge because it was the higher of the two. See U.S.S.G. § 3D1.S(a); United States v. Spano, 476 F.3d 476, 478 (7th Cir.2007). That made the adjusted offense level for the marijuana charge irrelevant.
Third, counsel considers Wilson’s contention that he deserved an additional reduction in offense level for assisting the authorities under § 3El.l(b). But as counsel concludes, this argument would be frivolous because the government did not exercise its discretion to file a motion seeking the decrease. See United States v. Deberry, 576 F.3d 708, 710 (7th Cir.2009).
Fourth, counsel considers whether Wilson could argue that the district court miscalculated his criminal history by accounting for a prior marijuana conviction that Wilson believed was expunged. Under § 4A1.2(j), expunged convictions based on innocence or procedural irregularity are not counted in the criminal history calculation. See Wilson v. United States, 413 F.3d 685, 688 (7th Cir.2005). But because Wilson did not show that this conviction had at all been expunged, we agree with counsel that this argument would be frivolous. .
Fifth, counsel considers whether Wilson could challenge the two-level increase under § 2K2.1(b)(4) for possession of a stolen gun because he didn’t know the gun was stolen. But counsel properly recognizes that this would be frivolous because any lack of knowledge on Wilson’s part would not foreclose application of the guideline. See § 2K2.1 cmt. n. 8(B); United States v. Statham, 581 F.3d 548, 553 (7th Cir.2009); United States v. Schnell, 982 F.2d 216, 217 (7th Cir.1992).
Finally, counsel considers generally whether Wilson could argue that his sentence was procedurally flawed or otherwise unreasonable. But as counsel recognizes, the district court calculated the range correctly, acknowledged the advisory nature of the guidelines, considered the sentencing factors listed in 18 U.S.C. § 3553(a), and adequately explained its reasoning. See Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007); United States v. Turner, 569 F.3d 637, 640 (7th Cir.2009). And because Wilson’s sentence lies within the correctly-calculated guidelines range, we would presume it reasonable. See Rita v. United States, 551 U.S. 338, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007).
Accordingly, we Grant counsel’s motion to withdraw and Dismiss Wilson’s appeal.
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ORDER
Julian Wyre was charged with possession with intent to distribute crack cocaine. See 21 U.S.C. § 841(a)(1). He entered into a plea agreement in which he waived his rights to appeal the conviction, his sentence, or the district court’s pretrial rulings unless they resulted from ineffective assistance of counsel or consideration of constitutionally impermissible factors. The district court sentenced him to 204 months’ imprisonment, and Wyre appealed. His appointed counsel moves to withdraw because he cannot identify any non-frivolous argument to pursue. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Wyre objects to counsel’s motion. See Cir. R. 51(b). We confine our review to the potential issues identified in counsel’s facially adequate brief and Wyre’s response. See 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).
Wyre has told counsel that he wants his guilty plea set aside, so counsel properly begins by evaluating whether he could challenge the voluntariness of his guilty plea or the adequacy of the plea colloquy. See Fed R.Crim. P. 11; United States v. Knox, 287 F.3d 667, 671-72 (7th Cir.2002). Because Wyre did not move to withdraw his guilty plea in the district court, our review would be for plain error only. See United States v. Vonn, 535 U.S. *5355, 59, 122 S.Ct. 1043, 152 L.Ed.2d 90 (2002); United States v. Griffin, 521 F.3d 727, 730 (7th Cir.2008). Counsel identifies only one omission during the plea colloquy: the district court did not tell Wyre that he could present evidence at trial. See Fed. R.CrimP. 11(b)(1)(E). But the judge did advise Wyre that if he went to trial he could subpoena witnesses and testify in his own defense, and the plea agreement further specified that, at trial, Wyre would be able to present witnesses and other evidence. The judge’s failure to say more is not plain error. See United States v. Driver, 242 F.3d 767, 771 (7th Cir.2001). We therefore agree with counsel that it would be frivolous to argue that the plea colloquy was deficient.
Counsel in his brief, and Wyre in his 51(b) response, also propose arguing that the plea was involuntary because Wyre’s attorney was ineffective. A challenge to the adequacy of counsel’s performance, however, is best pursued on collateral review so that a more complete record can be developed. 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).
Finally, counsel considers whether Wyre could challenge his sentence, and both counsel and Wyre propose arguing that the district court erred by denying Wyre’s request at sentencing to substitute counsel. Both of these arguments are foreclosed by the appeal waiver. If the guilty plea stands, so does the waiver. United States v. Wilson, 481 F.3d 475, 483 (7th Cir.2007); United States v. Nave, 302 F.3d 719, 721 (7th Cir.2002). Thus, any challenge to Wyre’s sentence or the district court’s refusal to substitute counsel would also be frivolous.
Accordingly, we GRANT counsel’s motion to withdraw and DISMISS the appeal.
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https://www.courtlistener.com/api/rest/v3/opinions/8475278/
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ORDER
Michael Morgan was convicted in Indiana state court of criminal confinement after he confessed and pleaded guilty to holding his then-wife at gunpoint. Believing he was deprived of his Sixth Amendment right to effective assistance of counsel, Morgan sought post-conviction relief in Indiana state courts. After being rebuffed at all stages, Morgan petitioned for a federal writ of habeas corpus under 28 U.S.C. § 2254. The district court denied the petition and refused to grant a certificate of appealability. Morgan appealed, and we certified the appeal to decide whether Morgan’s counsel was ineffective under United States v. Cronic, 466 U.S. 648, 104 *55S.Ct. 2039, 80 L.Ed.2d 657 (1984). We affirm the district court’s judgment.
In his state post-conviction petition, Morgan asserted that his appointed counsel, Michael Rader, was ineffective in three essential ways. First, he argued that Rad-er should have challenged the voluntariness of his confession and the validity of the victim’s testimony because both Morgan and the victim had a history of mental illness. Second, Morgan asserted that Rader should have tried to exclude police reports pertaining to his arrest. Finally, Morgan faulted Rader for failing to advise him before he pleaded guilty: Morgan said Rader never saw him outside the courtroom, never interviewed him or advised him of his rights, and merely forwarded him a copy of the state’s proposed guilty plea with a personal letter recommending that he accept the offer. The state trial court disbelieved these assertions and granted the state’s motion for summary judgment.
The Indiana Court of Appeals affirmed. The court expressed “no difficulty” in concluding that, even accepting Morgan’s factual allegations as true, Rader’s deficiencies were not “of the magnitude” contemplated by Cronic to merit a presumption of prejudice. Morgan v. State, No. 84A05-0602-PC-83, 2006 WL 2439809, *6 (Ind.Ct.App.2006). The Indiana Supreme Court declined review.
Morgan renewed his claims against Rad-er in a federal petition for a writ of habeas corpus. The district court denied the petition. The district court recognized that Cronic affords a presumption of prejudice in three exceptional circumstances: where there is a “complete denial of counsel,” where “counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing,” or where outside circumstances prevent effectiveness. Cronic, 466 U.S. at 659-60, 104 S.Ct. 2039. The court saw “no basis” in the record for Morgan to formulate his Cronic argument as a “complete denial of counsel,” and went on to accept as reasonable the state court’s determination that Rader did not fail to test the prosecution’s case. Morgan v. Calderone, No. 1:07-cv-763-DFH-JMS, 2008 WL 2095526, *3 & n. 1 (S.D.Ind.2008). Morgan appeals the district court’s decision.
Our review of the state court’s decision is governed by the Antiterrorism and Effective Death Penalty Act. Under the AEDPA Morgan is entitled to a writ of habeas corpus if the state court reached a decision that is (1) “contrary to” or “an unreasonable application of’ clearly established federal law as determined by the Supreme Court, or (2) the state court’s decision was “based on an unreasonable determination of the facts in light of the evidence presented.” 28 U.S.C. § 2254(d); see Arredondo v. Huibregtse, 542 F.3d 1155, 1167-68 (7th Cir.2008).
On appeal Morgan reasserts that Rad-er’s performance violated Cronic.1 Rad-er’s performance was so deficient, Morgan contends, that it effectively denied him counsel and prevented him from testing the strength of the prosecution’s case. Morgan also argues that the state appellate court’s determination that his case was not of sufficient “magnitude” to merit a presumption of prejudice was “contrary to” and an “unreasonable application of’ federal law under § 2254(d)(1).
First, the state court’s decision was not “contrary to” the Supreme Court’s de*56cisión in Cronic. A state court’s decision is “contrary to” federal law if it applies the wrong standard or “decides a case differently than [the Supreme Court has] done on a set of materially indistinguishable facts.” Bell v. Cone, 535 U.S. 685, 694, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002); see also Arredondo, 542 F.3d at 1167. Morgan does not argue that the state court misapplied Cronic as the standard governing his petition, and since there are no Supreme Court cases based on “materially indistinguishable facts,” the state court’s refusal to apply Cronic could not be contrary to federal law.
As for the “unreasonable application” prong of AEDPA, the state court reasonably concluded that Morgan suffered no Cronic violation. Our review of a state court’s application of clearly established federal law is deferential: we will accept the application “even if it is likely incorrect, so long as it is reasonable.” Johnson v. Loftus, 518 F.3d 453, 456 (7th Cir.2008). Here, the state court reasonably applied both the first and second exceptions set forth in Cronic. A “complete denial of counsel” claim would require Morgan to show that Rader was “totally absent” or that he was “prevented from assisting during a critical stage of the proceedings.” Cronic, 466 U.S. at 659 & n. 25, 104 S.Ct. 2039. To show that Rader failed to test the prosecution’s case, Morgan would have to demonstrate that Rad-er’s failure was “complete” and persistent throughout the entire proceedings. Bell, 535 U.S. at 697, 122 S.Ct. 1843. But Morgan cannot show that Rader was deficient under either of these theories because Rader negotiated Morgan’s plea agreement and attended his plea hearing.
Furthermore, the state court’s conclusions are reasonable in light of the Supreme Court’s recent case law narrowing the scope of Cronic. Last year, for instance, the Court concluded that none of its decisions clearly established that Cronic should apply to an ineffective-assistance case in which counsel participated in a plea hearing by speakerphone. Wright v. Van Patten, 552 U.S. 120, 125, 128 S.Ct. 743, 169 L.Ed.2d 583 (2008). In an earlier case, the Court also declined to hold that “in every case counsel’s failure to consult with the defendant ... is necessarily unreasonable.” Roe v. Flores-Ortega, 528 U.S. 470, 479, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000) (evaluating 'duty to consult in context of bringing an appeal). Given this precedent, and the Court’s general reluctance to apply Cronic to claims of ineffective assistance arising from a plea hearing, see Hill v. Lockhart, 474 U.S. 52, 57-58, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985), we cannot say that the state court unreasonably applied Cronic.
Finally, Morgan asserts without elaboration that we should grant his petition because the state court’s decision involved “an unreasonable determination of the facts.” 28 U.S.C. § 2254(d)(2); Pole v. Randolph, 570 F.3d 922, 935 (7th Cir.2009). It would be impossible for Morgan to demonstrate unreasonable fact-finding in this case because the Indiana Court of Appeals, while upholding the summary judgment decision, presumed Morgan’s factual allegations to be true. Since the state court accepted the truth of Morgan’s assertions, the decision to deny relief does not “ ‘rest[ ] upon a determination of fact that lies against the clear weight of the evidence,’ ” Ben-Yisrayl v. Buss. 540 F.3d 542, 549 (7th Cir.), cert. denied, - U.S. -, 129 S.Ct. 2890, 174 L.Ed.2d 581 (2009), and Morgan cannot show that the court made an “unreasonable determination of the facts.”
AFFIRMED.
. We granted a certificate of appealability exclusively on the application of Cronic and not the more commonly invoked case of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The district court concluded (and Morgan does not contest) that he forfeited his right to assert a claim under that case by not raising it in the state courts.
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ORDER
Phyllis Carr moved the bankruptcy court to allow her to file a late notice of appeal to the district court, contending that her attorney’s illness delayed a timely filing. The bankruptcy court refused, concluding Carr’s failure was inexcusable because she knew of the illness and assumed the risk of relying on her attorney. The district court agreed and affirmed the bankruptcy court’s refusal to allow a late appeal. We affirm the judgment of the district court.
Carr filed a proof of claim in the bankruptcy case of her former employer, United Airlines, alleging that United dis*58criminated against her on the basis of a disability. Carr and United settled her claim, with United agreeing to a general, unsecured pre-petition claim for cash against United’s estate. Under United’s bankruptcy plan, that claim translated into shares of common stock in United, but the shares were worth less than Carr anticipated. After she received her stock, Carr, now proceeding pro se, sought to vacate the settlement agreement in the bankruptcy court because, according to her, she was “conned” into signing an agreement that did not explain that her recovery in bankruptcy might be less than the stated amount of her general, unsecured claim. Carr also asserted that her attorney had been mentally ill and forced to give up almost all of her practice. The bankruptcy court denied her motion to vacate.
Carr filed a notice of appeal more than 10 days after the bankruptcy court’s order denying her request to vacate the settlement. Recognizing that the deadline for appealing had passed, she also moved for an extension of time to appeal, invoking Federal Rule of Bankruptcy Procedure 8002(c)(2). Carr argued that she missed the deadline because she relied on her attorney to file a timely appeal, but the attorney failed to file because of her mental illness. The bankruptcy court refused to extend the appeal deadline. It reasoned that Carr’s neglect was not excusable because she knew of her attorney’s mental health problems three months earlier when she asked the court to vacate the settlement and therefore accepted the risk of continuing with that attorney. Carr appealed this decision to the district court, and the district court agreed that Carr had not shown excusable neglect. We affirm the district court’s judgment.
Under Rule 8002, a bankruptcy court can extend the 10-day limit for filing a notice of appeal only if the movant establishes excusable neglect. Fed. R. BaNkr.P. 8002(c)(2). Excusable neglect is an equitable concept incorporating all the relevant circumstances surrounding the party’s omission, including the reason for the default, whether it was within the movant’s control, the prejudice to the nonmovant, and the interests of efficient judicial administration. Pioneer Inv. Servs. Co. v. Brunswick Assocs., Ltd. P’ship, 507 U.S. 380, 395, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993); see Prizevoits v. Ind. Bell Tel. Co., 76 F.3d 132, 134 (7th Cir.1996) (concluding that Supreme Court’s definition of “excusable neglect” applies “throughout the federal procedural domain”). We review the bankruptcy court’s decision about excusable neglect for abuse of discretion. See In re Singson, 41 F.3d 316, 320 (7th Cir.1994).
Here the bankruptcy court reasoned that Carr’s reliance on her attorney to file a timely appeal was not excusable because Carr knew three months earlier that her attorney was ill and scaling back her caseload. Like any client, Carr is accountable for the inattentiveness of her attorney. See Easley v. Kirmsee, 382 F.3d 693, 699-700 (7th Cir.2004); Tango Music LLC v. DeadQuick Music, Inc., 348 F.3d 244, 247 (7th Cir.2003). Aware that her lawyer’s reliability was questionable, Carr remained with that lawyer, a decision that was entirely within her control. And, as the bankruptcy court found, Carr articulated no reason for her late filing other than the illness known to her when she filed her pro se motion to vacate three months earlier. Under these circumstances, the bankruptcy court did not abuse its discretion in declining to allow a tardy appeal. See Raymond v. Ameritech Corp., 442 F.3d 600, 607-08 (7th Cir.2006) (no excusable neglect where delay was attributable entirely to factors within movant’s control); *59In re Kmart, 381 F.3d 709, 715 (7th Cir.2004) (same).
AFFIRMED.
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ORDER
Aikins Frimpong, a citizen of Ghana, entered the United States in 1976 and remained without permission past the expiration of his six-month tourist visa. Frimpong once was eligible for a path to citizenship through the Immigration Reform and Control Act—his status was adjusted to temporary legal resident through that program in 1989—but he fell off track *64by failing to submit the paperwork necessary to become a lawful permanent resident. See 8 U.S.C. § 1255a. In 1996 Frimpong was convicted by an Iowa court of second-degree robbery, Iowa Code §§ 711.1, 711.3, and possession of crack, id. § 124.401, and over the following decade he accumulated two more state convictions for possessing crack and a federal conviction for his role in a crack-distribution conspiracy, 21 U.S.C. §§ 846, 841(b)(1)(A). The government initiated removal proceedings in 2008 by filing a notice to appear alleging that Frimpong was removable on the basis of both his unlawful presence, 8 U.S.C. § 1227(a)(1)(B), and his criminal convictions, id. § 1227(a)(2)(A)(iii), (B)(1).
At a hearing before an immigration judge, Frimpong admitted that he was removable as charged but insisted that a federal prosecutor had promised him relief from removal in exchange for his assistance in the case against his coconspirators. Frimpong, however, did not produce any evidence of the alleged agreement and pointed only to a line in the probation officer’s presentence investigation report noting that the Bureau of Immigration and Customs Enforcement had “indicated they [would] not file a detainer” against Frimpong. After concluding that the notation was irrelevant to Frimpong’s removal proceedings, the immigration judge found him removable on the basis of his unlawful presence and criminal convictions and ordered him removed to Ghana. The Board of Immigration Appeals approved that decision, noting that under 28 C.F.R. § 0.197 (a regulation in effect since 1996, long-before Frimpong allegedly was assured he would not be removed), a prosecutor’s promise of immigration relief is not binding on the Department of Homeland Security without prior written authorization from the agency. See also United States Attorneys’ Manual § 9-73.510 (Sept.1997) (“[T]he United States Attorney should not, as part of a plea agreement or an agreement to testify, or for any other reason, promise an alien that he/she will not be deported, without prior authorization from the INS District Director.”). And, as the Board noted, Frimpong had not presented evidence of such authorization.
In his pro se petition for review, Frimpong insists again that he should not be removed from the country because a federal prosecutor promised him immigration relief in exchange for his assistance. But we lack jurisdiction to review a final order of removal against an alien who, like Frimpong, was ordered removed on the basis of an aggravated-felony or controlled-substance conviction, unless the petition raises a constitutional or legal question. See 8 U.S.C. § 1252(a)(2)(C), (D); Zamora-Mallari v. Mukasey, 514 F.3d 679, 693-94 (7th Cir.2008); Rosales-Pineda v. Gonzales, 452 F.3d 627, 629-30 (7th Cir.2006). A legal question arises when the agency has misinterpreted a statute, regulation, or constitutional provision, misread its own precedent, applied the wrong legal standard, or failed to exercise its discretion. Adebowale v. Mukasey, 546 F.3d 893, 896 (7th Cir.2008). The question whether Frimpong entered into a cooperation agreement binding on the immigration authorities is one of fact that is beyond our review.
DISMISSED.
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ORDER
John Mason sold an undercover police officer 6 grams of crack cocaine. He pleaded guilty to distributing crack, 21 U.S.C. § 841(a)(1), and was sentenced to 180 months’ imprisonment. Mason appeals, but his appointed lawyers move to withdraw because they are unable to identify any nonfrivolous argument to pursue. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Mason opposes dismissal of his appeal. See Cir. R. 51(b). We confine our review to the potential issues outlined in counsel’s facially adequate brief and Mason’s response. See United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir.2002).
Counsel inform us that Mason does not wish to challenge his guilty plea, so the lawyers properly refrain from discussing possible arguments about the voluntariness of the plea or the adequacy of the plea colloquy. See United States v. Knox, 287 F.3d 667, 671-72 (7th Cir.2002). Instead, counsel’s Anders submission and Mason’s response identify potential defects in the sentence imposed. In the presentence investigation report, the probation officer set a base offense level of 32 because the relevant conduct involved at least 150 grams of crack, see U.S.S.G. § 2Dl.l(e)(4), and added 2 levels for possession of a firearm, see id. § 2Dl.l(b)(l). Mason’s status as a career offender yielded an identical level 34 because the statutory maximum for distributing 5 or more grams of crack is 40 years. See 21 U.S.C. § 841(b)(l)(B)(iii); U.S.S.G. § 4Bl.l(b). The probation officer subtracted 3 levels for acceptance of responsibility, see U.S.S.G. § 3E1.1, for a total offense level of 31. A level 31, combined with the category VI criminal histoiy that resulted from Mason’s career-offender status, see id. § 4Bl.l(b), produced a guidelines imprisonment range of 188 to 235 months. The district court agreed that Mason was a career offender but imposed a below-range sentence of 180 months’ imprisonment.
Both defense counsel and Mason evaluate whether Mason could challenge his classification as a career offender. Mason’s only argument is that his two prior convictions in Cook County, Illinois, do not qualify as controlled substance offenses. But this argument would be frivolous because his prior convictions are for the *66manufacture or delivery of a controlled substance, a Class 2 felony under 720 III. Comp. Stat. 570/401, and the manufacture or delivery of marijuana, a Class 3 felony under 720 III. Comp. Stat. 550/5, and both offenses were punishable by more than a year in prison. Thus, the convictions qualify as controlled substance offenses for career-offender purposes. See U.S.S.G. § 4131.2(b); United States v. Kelly, 519 F.3d 355, 365 (7th Cir.2008).
Counsel and Mason also consider whether Mason could argue that the probation officer overstated the drug quantity and misapplied the upward adjustment for possession of a firearm when calculating the offense level under U.S.S.G. § 2D1.1. But this contention would be frivolous because the district court relied on the career-offender guideline, not § 2D1.1. The career-offender guideline always trumps § 2D1.1 if a higher offense level results, so in this case it would make no difference whether the probation officer made a mistake in applying § 2D1.1. See U.S.S.G. § 4Bl.l(b); United States v. Clanton, 538 F.3d 652, 660 (7th Cir.2008); United States v. Spence, 450 F.3d 691, 695 (7th Cir.2006).
Finally, counsel assess whether Mason could argue that 180 months’ imprisonment is an unreasonable sentence. A below-guidelines sentence is presumptively reasonable, United States v. Liddell, 543 F.3d 877, 885 (7th Cir.2008), and counsel have not suggested any reason why that presumption would not hold true as to Mason.
Accordingly, we GRANT counsel’s motion to withdraw and DISMISS the appeal.
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ORDER
John Gunartt filed this pro se adversary action against Fifth Third Bank, a creditor in his Chapter 7 bankruptcy. In his complaint Gunartt challenged the bank’s foreclosure of his property and sought removal of the bankruptcy trustee. The bankruptcy court dismissed Gunartt’s complaint. The district court upheld the dismissal, and we affirm.
Gunartt owned and was in the process of rehabilitating two multi-unit, residential buildings when he filed for bankruptcy. Fifth Third had financed the rehabilitation and held a substantial mortgage on the two buildings. Gunartt, however, failed to make a balloon payment for the entire principal balance, and as a result, the bank filed a foreclosure action in state court. Gunartt filed for protection under Chapter 11 of the Bankruptcy Code, but the bankruptcy court — on Fifth Third’s motion— converted the case to an involuntary Chapter 7 liquidation. Gunartt appealed the conversion, and the district court affirmed. The trustee worked to liquidate the estate’s nonexempt assets, negotiating the sale of the two buildings as well as a settlement of the bank’s secured claim. Both the sale and settlement were approved by the bankruptcy court, and Gu-nartt did not appeal.
Instead Gunartt filed this adversary action against Fifth Third, claiming that the bank drove him into bankruptcy when it breached its loan agreement with him, committed fraudulent lending practices, discriminated against him, and illegally attempted to foreclose on his property. After he filed his petition, Gunartt further contended, the bank filed a false proof of claim. Gunartt also claimed that the trustee had a conflict of interest and breached his fiduciary duty to the estate by selling the buildings for a sum below market value. As relief Gunartt sought damages, specific performance of his loan agreement with the bank, the dismissal of his Chapter 7 bankruptcy, and removal of the trustee.
The bankruptcy court dismissed the complaint, reasoning that only the trustee had standing to litigate Gunartt’s claims against Fifth Third because they had become property of the bankruptcy estate. *68Gunartt lacked standing, the court concluded, and the trustee had already administered the claims as part of the estate when he settled with the bank. To the extent that Gunartt’s claims related to actions taken within the course of the bankruptcy, the court concluded that Gunartt had waited too long to pursue them. Finally, the bankruptcy court declined to rule on Gunartt’s claims against the trustee because he failed to name the trustee as a defendant in the adversary complaint. Gunartt appealed, and the district court upheld the dismissal. We review the dismissal of an adversary complaint in bankruptcy de novo. Zedan v. Habash, 529 F.3d 398, 403 (7th Cir.2008).
On appeal Gunartt generally renews his contention that the bankruptcy court wrongly dismissed his complaint. With respect to the court’s conclusion that his Chapter 7 bankruptcy deprived him of standing to litigate his claims, Gunartt reiterates that the Chapter 11 reorganization plan was “illegally” converted to an involuntary plan under Chapter 7. But Gunartt has separately litigated and lost his challenge to the conversion of his bankruptcy to a Chapter 7 liquidation, and he did not appeal that order. See Gunartt v. Fifth Third Bank, 07-cv-2399 (May 25, 2007 N.D. Ill.) (unpublished order).
Gunartt also appears to contend that the trustee could not have standing to litigate his claims because they were “non-core causes of action” that did not arise under the Bankruptcy Code. But whether a bankruptcy proceeding is “core” or “non-core” concerns the bankruptcy court’s limited jurisdiction to hear claims related to a bankruptcy case; it has nothing to do with a potential litigant’s standing in bankruptcy court or district court. See 28 U.S.C. 157(c); Celotex Corp. v. Edwards, 514 U.S. 300, 308 n. 6, 115 S.Ct. 1493, 131 L.Ed.2d 403 (1995); In re FedPak Systems, Inc., 80 F.3d 207, 211-14 (7th Cir.1996) (analyzing issue of standing apart from issue of bankruptcy court’s statutory jurisdiction over non-core proceeding). As the bankruptcy court here correctly concluded, Gunartt lacked standing to pursue these claims because at the commencement of his bankruptcy, all of his property, including the claims against the bank, became part of the bankruptcy estate, giving the trustee exclusive standing to litigate the claims. See 11 U.S.C. § 541(a)(1); Cannon-Stokes v. Potter, 453 F.3d 446, 448 (7th Cir.2006); In re Polis, 217 F.3d 899, 901 (7th Cir.2000); Cable v. Ivy Tech State College, 200 F.3d 467, 472 (7th Cir.1999).
Finally, Gunartt contests the dismissal of his claim seeking the removal of the trustee for an alleged conflict of interest. Gunartt argues that because he is a pro se litigant, the bankruptcy court should have excused his failure to name the trustee as a defendant. Although courts are required to liberally construe pro se pleadings, pro se litigants are not excused from compliance with the rules of procedure. Pearle Vision, Inc. v. Romm, 541 F.3d 751, 758 (7th Cir.2008) (citing McNeil v. United States, 508 U.S. 106, 113, 113 S.Ct. 1980, 124 L.Ed.2d 21 (1993)). And while the bankruptcy court may have an independent duty to remove a trustee with a conflict of interest, removal is an extreme remedy, committed to the sound discretion of the bankruptcy court. See 11 U.S.C. § 324(a); In re Morgan, 375 B.R. 838, 847-48 (8th Cir. BAP 2007); In re AFI Holding, Inc., 355 B.R. 139, 148 (9th Cir. BAP 2006). Here, Gunartt’s request to have the trustee removed appears to be based on his dissatisfaction with the sale of the two buildings rather than any clearly identified conflict of interest, and thus we cannot say that the court abused its discretion by dismissing the complaint.
*69Accordingly, we AFFIRM the judgment of the district court.
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ORDER
Dennis Alexander pleaded guilty to possessing a firearm after a felony conviction. See 18 U.S.C. § 922(g)(1). The district court concluded that Alexander had three prior convictions for a violent felony or serious drug offense, and thus sentenced him to the mandatory minimum of 15 years under the Armed Career Criminal Act (“ACCA”). See id. § 924(e)(1). Alexander appeals his sentence, and the government concedes that we must remand for resentencing.
Alexander does not dispute that two of his adult convictions qualify as ACCA predicates, but he argues that the district court erred in counting a Wisconsin juvenile adjudication for attempted armed robbery. See Wis. Stat. § 943.32(l)(b), (2). The ACCA defines “violent felony” to include juvenile adjudications that involved “the use or carrying of a firearm, knife, or destructive device,” 18 U.S.C. § 924(e)(2)(B), and the district court counted Alexander’s juvenile adjudication after concluding that he used a knife.
Alexander argues that the government did not sufficiently establish that a knife was the weapon involved in his attempted armed robbery. At sentencing the government submitted copies of the delinquency petition, the state court’s written finding that Alexander had tried to commit “armed” robbery, and a minute entry showing only that Alexander entered an “admission” to the delinquency petition. The petition summarizes police reports detailing Alexander’s alleged conduct, but no rehable record, e.g., a transcript of the delinquency hearing, was submitted to establish that Alexander specifically was armed with a knife. See Shepard v. United States, 544 U.S. 13, 23-24, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005); United States v. Spells, 537 F.3d 743, 749 (7th Cir.2008). Thus, as the government now concedes, the state records available to the district court at sentencing were inconclusive, and it was error to count Alexander’s juvenile adjudication as a predicate offense under the ACCA.
*72Accordingly, we VACATE the judgment and REMAND to the district court for resentencing.
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ORDER
Andrew Sales appeals the dismissal of his complaint under the Truth in Lending Act, 15 U.S.C. § 1601 et seq., alleging that a car dealership, Gateway Automotive Group, and one of its salespeople, John Urankar, violated the act when they arranged the financing for a truck he bought from them. The district court dismissed the complaint for failing to state a claim under TILA. We affirm.
The complaint alleged the following relevant facts. Sales entered into a retail installment contract to buy a truck from Gateway, and Gateway assigned the contract to Credit Acceptance Corporation. But a few days later Gateway and Urankar told Sales that Credit Acceptance Corporation would not agree to the assignment. Gateway and Urankar informed Sales, however, that another company, Car Financial Services, had agreed to take the assignment. Based on this information, Sales entered into a second retail installment contract. Sales subsequently learned, however, that Credit Acceptance Corporation had never rejected the first contract, but instead had returned the contract to Gateway and Urankar at their behest. Sales thus claimed that Gateway and Urankar engaged in a “bait and switch” tactic and violated TILA by “changing the terms” of the first retail installment contract.
The nature of Sale’s bait-and-switch claim is clarified in his subsequent filings (to the district court and this court). He suggests that Gateway and Urankar deceived him'—in violation of TILA—by conditioning financing of the second contract on his agreeing to a “service contract” (referred to in the district court as an *73“extended warranty”) that cost an additional $1,295.
The district court dismissed the complaint. The court found that Sales did not allege that Urankar was a creditor for purposes of the act with regard to the retail installment contract, and that Sales could not identify any information required by TILA that Gateway failed to disclose.
On appeal Sales renews his argument that the defendants violated TILA by forcing him to buy a service contract/extended warranty in order to obtain financing. In support he cites two cases where car dealers allegedly required the purchase of insurance products and/or a service contract as a condition of financing, Bragg v. Bill Heard Chevrolet, Inc., 374 F.3d 1060 (11th Cir.2004), and Brugger v. Kia, No. 01 C 1860, 2001 WL 845472 (N.D.Ill.2001) (unpublished order).
But neither of these cases stands for the proposition that coupling a service contract/extended warranty with a financing agreement violates TILA. Although both Bragg and Bnigger involved financing that-was conditioned upon the inclusion of insurance products or service contracts, the alleged TILA violations in those cases stemmed from the insurance products and service contracts not being included as part of the “finance charge” in the TILA disclosures. Bragg, 374 F.3d at 1063; Brugger, 2001 WL 845472, at *2. Sales has not identified any information required by TILA that defendants failed to disclose.
Accordingly, the judgment is affirmed.
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ORDER
Dennis Alexander pleaded guilty to possessing a firearm after a felony conviction. See 18 U.S.C. § 922(g)(1). The district court concluded that Alexander had three prior convictions for a violent felony or serious drug offense, and thus sentenced him to the mandatory minimum of 15 years under the Armed Career Criminal Act (“ACCA”). See id. § 924(e)(1). Alexander appeals his sentence, and the government concedes that we must remand for resentencing.
Alexander does not dispute that two of his adult convictions qualify as ACCA predicates, but he argues that the district court erred in counting a Wisconsin juvenile adjudication for attempted armed robbery. See Wis. Stat. § 943.32(l)(b), (2). The ACCA defines “violent felony” to include juvenile adjudications that involved “the use or carrying of a firearm, knife, or destructive device,” 18 U.S.C. § 924(e)(2)(B), and the district court counted Alexander’s juvenile adjudication after concluding that he used a knife.
Alexander argues that the government did not sufficiently establish that a knife was the weapon involved in his attempted armed robbery. At sentencing the government submitted copies of the delinquency petition, the state court’s written finding that Alexander had tried to commit “armed” robbery, and a minute entry showing only that Alexander entered an “admission” to the delinquency petition. The petition summarizes police reports detailing Alexander’s alleged conduct, but no rehable record, e.g., a transcript of the delinquency hearing, was submitted to establish that Alexander specifically was armed with a knife. See Shepard v. United States, 544 U.S. 13, 23-24, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005); United States v. Spells, 537 F.3d 743, 749 (7th Cir.2008). Thus, as the government now concedes, the state records available to the district court at sentencing were inconclusive, and it was error to count Alexander’s juvenile adjudication as a predicate offense under the ACCA.
*72Accordingly, we VACATE the judgment and REMAND to the district court for resentencing.
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ORDER
Donnell Robinson, Jr., pleaded guilty to distributing more than five grams of crack, and the district court sentenced him to 120 months’ imprisonment, the mandatory minimum given Robinson’s prior felony drug convictions. See 21 U.S.C. § 841(a)(1), (b)(1)(B). Robinson’s plea agreement included a waiver of his right to appeal his conviction and sentence. Robinson appealed nonetheless, and his ap*74pointed counsel now seeks to withdraw under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), because he concludes that the appeal is frivolous. Robinson did not respond to our invitation to comment on counsel’s motion. See Cir. R. 51(b). We review only the potential issues identified in counsel’s facially adequate brief. See United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir.2002).
Counsel considers whether Robinson could challenge the voluntariness of his guilty plea or the adequacy of the plea colloquy, but Robinson has given no indication that he wishes to have his guilty plea set aside, so counsel should have omitted this discussion. See United States v. Knox, 287 F.3d 667, 671 (7th Cir.2002). And because Robinson does not contest the validity of his plea, the appeal waiver must stand. See Nunez v. United States, 546 F.3d 450, 453 (7th Cir.2008); United States v. Whitlow, 287 F.3d 638, 640 (7th Cir.2002). Accordingly, we agree with counsel that any potential arguments on appeal would be frivolous.
Counsel’s motion to withdraw is GRANTED, and the appeal is DISMISSED.
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ORDER
Terence Richards claims in this lawsuit under the diversity jurisdiction that he was injured from using Humatrope, a drug manufactured by Eli Lilly and Company. But Richards had last used the drug in 2004, and in 2005 he sued the company in federal court for negligence, strict liability, and breach of implied warranty, all prem*75ised on his use of Humatrope “[d]uring and before July 2004.” That complaint was dismissed without prejudice because Richards did not allege enough in damages to meet the $75,000 threshold for diversity jurisdiction.
The complaint here, which Richards filed in October 2008, is a virtual copy of the earlier suit except for its allegation of greater damages. Lilly moved to dismiss the suit as barred by the applicable statutes of limitations. The district court took judicial notice of the 2005 complaint and, applying Illinois law, see Woidtke v. St Clair County, 335 F.3d 558, 562 (7th Cir.2003), concluded that Richards had last taken Humatrope in July 2004 and knew of his alleged injury by the following year. That put his claims for negligence and strict liability outside the two-year statute of limitations, see 735 Ill. Comp. Stat. 5/13-202, and his claim for breach of implied warranty outside the four-year statute of limitations, see 810 Ill. Comp. Stat. 5/2-725. Accordingly, the district court granted the motion and dismissed the complaint. Richards appeals.
Our review is de novo. Dominguez v. Hendley, 545 F.3d 585, 588 (7th Cir.2008). Richards argues that the limitations periods should have been tolled under the discovery rule. He contends that, although in 2005 he was able to piece together that he had been injured by Humatrope, he did not know this with medical certainty and did not gain sufficient knowledge until he filed the second complaint in 2008.
But medical certainty is not the test. In Illinois the statute of limitations for a personal-injury claim begins to run “when the plaintiff discovers, or reasonably could discover” the injury and cause. Hollander v. Brown, 457 F.3d 688, 692-93 (7th Cir.2006). By 2005 Richards believed he had been injured and knew enough to allege that Humatrope was the cause. This is when the clock began to run on his claims for negligence and strict liability. See Golla v. Gen. Motors Corp., 167 Ill.2d 353, 212 Ill.Dec. 549, 657 N.E.2d 894, 898-99 (1995); Morietta v. Reese Constr. Co., 347 Ill.App.3d 1077, 283 Ill.Dec. 758, 808 N.E.2d 1046, 1050-51 (2004). His warranty claim accrued even earlier; a breach of an implied warranty is complete when a defective product is delivered, and the statute of limitations begins running at delivery, even if the buyer could not discover the defect until later. Ridle v. Sprayrite Mfg. Co., 198 Ill.App.3d 597, 144 Ill.Dec. 753, 555 N.E.2d 1272, 1273 (1990); Nelligan v. Tom Chaney Motors, Inc., 479 N.E.2d 439, 442 (Ill.App.Ct.1985).
AFFIRMED.
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MEMORANDUM **
Michael Izell Seals, a former California state detainee, appeals pro se from the district court’s summary judgment in his 42 U.S.C. § 1983 action alleging multiple civil rights violations against jail personnel. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo. Sanchez v. Vild, 891 F.2d 240, 241-42 (9th Cir.1989). We affirm.
The district court properly granted summary judgment on Seals’s excessive force claims because the unverified statements in Seal’s complaint were insufficient to controvert defendants’ evidence that the force used against Seals was reasonable under the circumstances. See Gibson v. County of Washoe, Nev., 290 F.3d 1175, 1197 (9th Cir.2002); see also Angel v. Seattle-First Nat’l Bank, 653 F.2d 1293, 1299 (9th Cir.1981) (“A motion for summary judgment cannot be defeated by mere conclusory allegations unsupported by factual data.”).
The district court properly granted summary judgment on Seals’s deliberate indifference claims because he failed to raise a triable issue as to whether the defendants intentionally disregarded a serious medical need. See Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir.2004) (affirming summary judgment where there was no evidence that the defendant was subjectively aware that her actions created a substantial risk of serious harm.); see also Sanchez, 891 F.2d at 242 (explaining that a difference of medical opinion concerning treatment does not amount to deliberate indifference).
[S] The district court properly granted summary judgment on Seals’s due process claims because Seals provided no evidence that he was denied the requisite procedural protections after he was charged with disciplinary violations. See Wolff v. McDonnell, 418 U.S. 539, 564-71, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974) (explaining that due process includes the right to call witnesses, to present documentary evidence, and to have a written statement by the fact finder as to the evidence relied upon and the reasons that disciplinary action was taken); see also Hernandez v. Johnston, 833 F.2d 1316, 1318 (9th Cir.1987) (holding that a prisoner has no constitutional right to a particular classification status).
The district court properly granted summary judgment on Seals’s retaliation claim because Seals provided no evidence that the disciplinary “write-ups” he received were issued in retaliation for filing inmate grievances. See CarePartners LLC v. Lashway, 545 F.3d 867, 877 (9th Cir.2008) (“A plaintiff alleging retaliation for the exercise of constitutionally protected rights must initially show that the protected conduct was a substantial or motivating factor in the defendant’s decision.”) (internal quotations omitted); see also Pratt v. Rowland, 65 F.3d 802, 807 (9th Cir.1995) (“[A] successful retaliation claim requires a finding that the prison authorities’ retaliatory action did not advance legitimate goals of the correctional institution or was not tailored narrowly enough *104to achieve such goals.”) (internal quotations omitted).
Finally, the district court properly determined that the supervisory defendants cannot be held liable under section 1983 where there has been no showing that their subordinates violated Seal’s constitutional rights. See Jackson v. City of Bremerton, 268 F.3d 646, 653 (9th Cir. 2001).
Seals’s remaining contentions are unpersuasive.
All pending motions are denied.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Bernard Raymond Pearle Van Pelz appeals the district court’s denial of his habeas petition under 28 U.S.C. § 2254. We have jurisdiction pursuant to 28 U.S.C. § 2253. We review de novo a district court’s denial of a habeas petition, Koerner v. Grigas, 328 F.3d 1039, 1045-46 (9th Cir.2003), and we affirm.
A federal habeas writ may not issue for any claim decided on the merits in state court unless the state court’s adjudication of the claims either (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the United States Supreme Court or (2) resulted in a decision that was based on an unreasonable determination of the facts given the evidence presented in state court. 28 U.S.C. § 2254(d).
Van Pelz argues his due process rights, as guaranteed by the United States Constitution, were violated by state court jury instructions that permitted his conviction for conspiracy based on alleged “overt acts” occurring after the other party to the conspiracy, Michael Thing, became a government informant. We disagree. First, it is uncontroverted that the U.S. Supreme Court has never expressly disavowed the instructions at issue here as violative of due process. If no holding of the Supreme Court has addressed the issue, the state court’s decision could not have been contrary to, or an unreasonable application of, clearly established federal law. See Carey v. Musladin, 549 U.S. 70, 77, 127 S.Ct. 649, 654, 166 L.Ed.2d 482 (2006).
Secondly, and in any event, the jury instructions in question comported with state law. Although actionable conspiracy requires not only an agreement to commit a crime, but also an overt act in furtherance of the agreement, Cal.Penal Code §§ 182, 184, a conviction can rest on a single such act. People v. Russo, 25 Cal.4th 1124, 108 Cal.Rptr.2d 436, 25 P.3d 641, 644-48 (2001). The jury instructions here made that clear. While they also permitted conviction for overt acts occurring *106after Mr. Thing became a government informant, that qualification is consistent with California law as well.
In People v. Alleyne, 82 Cal.App.4th 1256, 98 Cal.Rptr.2d 737 (2000), the California Court of Appeal found that the crux of any conspiracy is the agreement itself. Id. at 741. The Alleyne court held that the death of one of the conspirators did not absolve the remaining conspirator of culpability for overt acts occurring thereafter. Id. In reaching that determination, the court relied on an earlier decision, People v. Eberhardt, 169 Cal.App.3d 292, 215 Cal.Rptr. 161 (1985), which held that a co-conspirator’s prosecutorial immunity (as a Native American) did not alleviate the other conspirator’s responsibility for his own acts in furtherance of the conspiracy. Id. at 165. Given the decisions in Eberhardt and Alleyne, the instructions were not erroneous and cannot support a federal habeas claim on that basis.
Van Pelz also argues that applying the logic of Alleyne, a 2000 case, to his conviction for acts that occurred previously, in 1998, violates the so-called Ex Post Facto Clause of the United States Constitution. See U.S. Const, art. I, § 9, cl. 3, § 10, cl. 1. That clause is “aimed at laws that retroactively alter the definition of crimes or increase the punishment for criminal acts.” California Dep’t of Corr. v. Morales, 514 U.S. 499, 504, 115 S.Ct. 1597, 1601, 131 L.Ed.2d 588 (1995) (internal citation omitted). Retroactive application of a judicial construction of a criminal statute, however, violates due process only if the construction is “unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue.” Bouie v. City of Columbia, 378 U.S. 347, 354, 84 S.Ct. 1697, 1703, 12 L.Ed.2d 894 (1964). We have previously limited a viable ex post facto challenge to construction representing a “radical and unforeseen departure from prior law.” Hayes v. Woodford, 301 F.3d 1054, 1088 (9th Cir.2002).
Van Pelz cannot meet this rigorous standard. The Alleyne case, while decided after the underlying crime at issue here, represented a logical extension of the prior Eberhardt decision. Alleyne did not expand liability for conspiracy, but only addressed such liability in a new factual context. The state court’s use of jury instructions incorporating the rationale of Alleyne did not constitute an unconstitutional ex post facto violation.
Finally, Van Pelz also advances an argument uncertified by the district court. Federal review of state court proceedings is normally limited to those issues specified in the Certificate of Appealability (“COA”), which did not adopt Van Pelz’ final argument that his Sixth Amendment right to confrontation was abridged because the trial court unduly limited the testimony of Mr. Thing at trial. While this court can broaden the scope of the COA for purposes of appeal, Van Pelz must make a “substantial showing of the denial of a constitutional right” in order to warrant such expanded appeal. Hiivala v. Wood, 195 F.3d 1098, 1104 (9th Cir.1999). We conclude that the requisite showing has not been made.
AFFIRMED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.
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MEMORANDUM **
Michael Stewart, a California state prisoner, appeals pro se from the district court’s judgment dismissing his 42 U.S.C. § 1983 action for failure to exhaust administrative remedies pursuant to the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a). We have jurisdiction under 28 U.S.C. § 1291. We review de novo, Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir.2000), and we affirm.
The district court properly dismissed the action because Stewart’s failure to submit an inmate grievance within the 15-working-day deadline did not constitute proper exhaustion. See Woodford v. Ngo, 548 U.S. 81, 83-84, 95, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006) (holding that “proper exhaustion” under § 1997 is mandatory and cannot be satisfied “by filing an untimely or otherwise procedurally defective administrative grievance”); see also Cal. Code Regs. tit. 15, § 3084.6(c) (providing that an inmate must submit an administra*108tive appeal within 15 working days of the event or decision being appealed).
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Edward L. Turner, a California state prisoner, appeals pro se from the district court’s judgment dismissing his 42 U.S.C. § 1983 action for failure to exhaust administrative remedies pursuant to the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a). We have jurisdiction under 28 U.S.C. § 1291. We review de novo the district court’s application of substantive law de novo and review for clear error its factual determinations, Wyatt v. Terhune, 315 F.3d 1108, 1117 (9th Cir.2003), and we affirm.
The district court properly dismissed the action because Turner did not com*109píete the administrative appeals process in accordance with the administrative procedural rules, and failed to demonstrate that he was excused or obstructed from doing so. See Woodford v. Ngo, 548 U.S. 81, 90-91, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006) (explaining that “proper exhaustion” under § 1997e(a) requires inmates to complete “all steps that the agency holds out” and to follow administrative procedural rules); see also CahCode Regs. tit. 15, § 3084.5(d).
We will not consider arguments or documents presented for the first time on appeal. Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir.1999) (“[A]n appellate court will not consider issues not properly raised before the district court.”); United States v. Elias, 921 F.2d 870, 874 (9th Cir.1990) (explaining that documents not presented to the district court are not part of the record on appeal).
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Foothills of Fernley, LLC (“Foothills”) appeals from the district court’s grant of *111summary judgment to the City of Fernley and individual municipal defendants (“City”). This suit arose after the City passed two municipal ordinances in quick succession (Bill 43 and 59), that changed the in-lieu of fee and dedication requirements respectively for City water. Foothills, a Nevada-based developer, claims that Bill 59 violated its equal protection and due process rights under both the United States and Nevada constitutions. Foothills also claims that the City impermissibly applied Bill 59 retroactively and that Bills 43 and 59 are unenforceable because the City failed to comply with procedural requirements for adopting a local ordinance as imposed by Nev.Rev.Stat. chapter 266 and Nev.Rev.Stat. chapter 237. Foothills also argues that the district court erred in raising sua sponte whether the applicable statute of limitations barred Foothills’ state law claims and in granting sua sponte summary judgment to the City. We have jurisdiction under 28 U.S.C. § 1291. We review de novo a grant of summary judgment, Mendez v. County of San Bernardino, 540 F.3d 1109, 1123 (9th Cir.2008), and we affirm.
1. Because the change in the fee for City water did not implicate a suspect class or fundamental right and was rationally related to a legitimate government interest, Foothills’ equal protection claims under the United States and Nevada Constitutions are not meritorious. See Heller v. Doe, 509 U.S. 312, 319, 113 S.Ct. 2637, 125 L.Ed.2d 257 (1993); Zamora v. Price, 213 P.3d 490, 495 (Nev.2009). The district court therefore properly granted summary judgment on these claims to the city.
2. Furthermore, the district court properly granted the City summary judg-r ment as to Foothills’ substantive due process claims. The change in water fee and access was reasonably related to a legitimate government purpose, and the City did not deprive Foothills of its substantive due process rights. See Richardson v. City & County of Honolulu, 124 F.3d 1150, 1162 (9th Cir.1997); Arata v. Faubion, 123 Nev. 153, 161 P.3d 244, 249 (2007).
3. Foothills’ procedural due process claims under the United States and Nevada constitutions and retroactivity claim fail because Foothills failed to establish that it had a property interest in water at the Bill 43 rate. See Shanks v. Dressel, 540 F.3d 1082, 1091 (9th Cir.2008); Am. W. Dev., Inc. v. City of Henderson, 111 Nev. 804, 898 P.2d 110, 112 (1995) (holding that “[i]n order for rights in a proposed development project to vest, zoning or use approvals must not be subject to further governmental discretionary action affecting project commencement, and the developer must prove considerable reliance on the approvals granted”). Accordingly, the district court properly granted the City summary judgment on Foothills’ procedural due process and retroactivity claims.
4. The district court did not err in raising the statute of limitations issue because the City had not waived the defense. Importantly, the issue was fully addressed by the parties in supplemental briefs and in argument before the court. As a result, Foothills suffered no prejudice when the district court raised the statute of limitations issue when considering Foothills’ motions for summary judgment. See Magana v. Commonwealth of the N. Mariana Islands, 107 F.3d 1436, 1446 (9th Cir.1997). Because the City adopted Bills 43 and 59 pursuant to its authority under Nev.Rev.Stat. § 278.020, the district court correctly determined that the twenty-five day statute of limitations under Nev.Rev. Stat. § 278.0235 barred all of Foothills’ state law claims. We thus conclude that the district court properly granted the *112City summary judgment as to Foothills’ state law claims.
5. This court has consistently held that “a district court may enter summary judgment sua sponte against a non moving party if the losing party has had a ‘full and fair opportunity to ventilate the issues involved in the matter.’ ” Gospel Missions of Am. v. City of Los Angeles, 328 F.3d 548, 553 (9th Cir.2003) (quoting Cool Fuel, Inc. v. Connett, 685 F.2d 309, 312 (9th Cir.1982)). Foothills had “a full and fair opportunity to ventilate the issues involved.” Id. The district court did not commit reversible error by acting sua sponte.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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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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ORDER
Donnell Robinson, Jr., pleaded guilty to distributing more than five grams of crack, and the district court sentenced him to 120 months’ imprisonment, the mandatory minimum given Robinson’s prior felony drug convictions. See 21 U.S.C. § 841(a)(1), (b)(1)(B). Robinson’s plea agreement included a waiver of his right to appeal his conviction and sentence. Robinson appealed nonetheless, and his ap*74pointed counsel now seeks to withdraw under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), because he concludes that the appeal is frivolous. Robinson did not respond to our invitation to comment on counsel’s motion. See Cir. R. 51(b). We review only the potential issues identified in counsel’s facially adequate brief. See United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir.2002).
Counsel considers whether Robinson could challenge the voluntariness of his guilty plea or the adequacy of the plea colloquy, but Robinson has given no indication that he wishes to have his guilty plea set aside, so counsel should have omitted this discussion. See United States v. Knox, 287 F.3d 667, 671 (7th Cir.2002). And because Robinson does not contest the validity of his plea, the appeal waiver must stand. See Nunez v. United States, 546 F.3d 450, 453 (7th Cir.2008); United States v. Whitlow, 287 F.3d 638, 640 (7th Cir.2002). Accordingly, we agree with counsel that any potential arguments on appeal would be frivolous.
Counsel’s motion to withdraw is GRANTED, and the appeal is DISMISSED.
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MEMORANDUM **
Bernard Raymond Pearle Van Pelz appeals the district court’s denial of his habeas petition under 28 U.S.C. § 2254. We have jurisdiction pursuant to 28 U.S.C. § 2253. We review de novo a district court’s denial of a habeas petition, Koerner v. Grigas, 328 F.3d 1039, 1045-46 (9th Cir.2003), and we affirm.
A federal habeas writ may not issue for any claim decided on the merits in state court unless the state court’s adjudication of the claims either (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the United States Supreme Court or (2) resulted in a decision that was based on an unreasonable determination of the facts given the evidence presented in state court. 28 U.S.C. § 2254(d).
Van Pelz argues his due process rights, as guaranteed by the United States Constitution, were violated by state court jury instructions that permitted his conviction for conspiracy based on alleged “overt acts” occurring after the other party to the conspiracy, Michael Thing, became a government informant. We disagree. First, it is uncontroverted that the U.S. Supreme Court has never expressly disavowed the instructions at issue here as violative of due process. If no holding of the Supreme Court has addressed the issue, the state court’s decision could not have been contrary to, or an unreasonable application of, clearly established federal law. See Carey v. Musladin, 549 U.S. 70, 77, 127 S.Ct. 649, 654, 166 L.Ed.2d 482 (2006).
Secondly, and in any event, the jury instructions in question comported with state law. Although actionable conspiracy requires not only an agreement to commit a crime, but also an overt act in furtherance of the agreement, Cal.Penal Code §§ 182, 184, a conviction can rest on a single such act. People v. Russo, 25 Cal.4th 1124, 108 Cal.Rptr.2d 436, 25 P.3d 641, 644-48 (2001). The jury instructions here made that clear. While they also permitted conviction for overt acts occurring *106after Mr. Thing became a government informant, that qualification is consistent with California law as well.
In People v. Alleyne, 82 Cal.App.4th 1256, 98 Cal.Rptr.2d 737 (2000), the California Court of Appeal found that the crux of any conspiracy is the agreement itself. Id. at 741. The Alleyne court held that the death of one of the conspirators did not absolve the remaining conspirator of culpability for overt acts occurring thereafter. Id. In reaching that determination, the court relied on an earlier decision, People v. Eberhardt, 169 Cal.App.3d 292, 215 Cal.Rptr. 161 (1985), which held that a co-conspirator’s prosecutorial immunity (as a Native American) did not alleviate the other conspirator’s responsibility for his own acts in furtherance of the conspiracy. Id. at 165. Given the decisions in Eberhardt and Alleyne, the instructions were not erroneous and cannot support a federal habeas claim on that basis.
Van Pelz also argues that applying the logic of Alleyne, a 2000 case, to his conviction for acts that occurred previously, in 1998, violates the so-called Ex Post Facto Clause of the United States Constitution. See U.S. Const, art. I, § 9, cl. 3, § 10, cl. 1. That clause is “aimed at laws that retroactively alter the definition of crimes or increase the punishment for criminal acts.” California Dep’t of Corr. v. Morales, 514 U.S. 499, 504, 115 S.Ct. 1597, 1601, 131 L.Ed.2d 588 (1995) (internal citation omitted). Retroactive application of a judicial construction of a criminal statute, however, violates due process only if the construction is “unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue.” Bouie v. City of Columbia, 378 U.S. 347, 354, 84 S.Ct. 1697, 1703, 12 L.Ed.2d 894 (1964). We have previously limited a viable ex post facto challenge to construction representing a “radical and unforeseen departure from prior law.” Hayes v. Woodford, 301 F.3d 1054, 1088 (9th Cir.2002).
Van Pelz cannot meet this rigorous standard. The Alleyne case, while decided after the underlying crime at issue here, represented a logical extension of the prior Eberhardt decision. Alleyne did not expand liability for conspiracy, but only addressed such liability in a new factual context. The state court’s use of jury instructions incorporating the rationale of Alleyne did not constitute an unconstitutional ex post facto violation.
Finally, Van Pelz also advances an argument uncertified by the district court. Federal review of state court proceedings is normally limited to those issues specified in the Certificate of Appealability (“COA”), which did not adopt Van Pelz’ final argument that his Sixth Amendment right to confrontation was abridged because the trial court unduly limited the testimony of Mr. Thing at trial. While this court can broaden the scope of the COA for purposes of appeal, Van Pelz must make a “substantial showing of the denial of a constitutional right” in order to warrant such expanded appeal. Hiivala v. Wood, 195 F.3d 1098, 1104 (9th Cir.1999). We conclude that the requisite showing has not been made.
AFFIRMED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.
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MEMORANDUM **
Michael Stewart, a California state prisoner, appeals pro se from the district court’s judgment dismissing his 42 U.S.C. § 1983 action for failure to exhaust administrative remedies pursuant to the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a). We have jurisdiction under 28 U.S.C. § 1291. We review de novo, Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir.2000), and we affirm.
The district court properly dismissed the action because Stewart’s failure to submit an inmate grievance within the 15-working-day deadline did not constitute proper exhaustion. See Woodford v. Ngo, 548 U.S. 81, 83-84, 95, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006) (holding that “proper exhaustion” under § 1997 is mandatory and cannot be satisfied “by filing an untimely or otherwise procedurally defective administrative grievance”); see also Cal. Code Regs. tit. 15, § 3084.6(c) (providing that an inmate must submit an administra*108tive appeal within 15 working days of the event or decision being appealed).
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Edward L. Turner, a California state prisoner, appeals pro se from the district court’s judgment dismissing his 42 U.S.C. § 1983 action for failure to exhaust administrative remedies pursuant to the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a). We have jurisdiction under 28 U.S.C. § 1291. We review de novo the district court’s application of substantive law de novo and review for clear error its factual determinations, Wyatt v. Terhune, 315 F.3d 1108, 1117 (9th Cir.2003), and we affirm.
The district court properly dismissed the action because Turner did not com*109píete the administrative appeals process in accordance with the administrative procedural rules, and failed to demonstrate that he was excused or obstructed from doing so. See Woodford v. Ngo, 548 U.S. 81, 90-91, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006) (explaining that “proper exhaustion” under § 1997e(a) requires inmates to complete “all steps that the agency holds out” and to follow administrative procedural rules); see also CahCode Regs. tit. 15, § 3084.5(d).
We will not consider arguments or documents presented for the first time on appeal. Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir.1999) (“[A]n appellate court will not consider issues not properly raised before the district court.”); United States v. Elias, 921 F.2d 870, 874 (9th Cir.1990) (explaining that documents not presented to the district court are not part of the record on appeal).
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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PER CURIAM:
This is an appeal of a summary judgment entered in favor of the defendants pursuant to the order of a magistrate judge entered on December 22, 2008.1 After hearing oral argument of counsel, we are satisfied for the reasons stated in the December 22, 2008 order that the magistrate judge correctly analyzed and disposed of the plaintiffs’ claims.
AFFIRMED.
. The case was tried by the magistrate judge by consent, pursuant to 28 U.S.C. § 636(c)(1).
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PER CURIAM:
Petitioners Miguel Antonio Rodriguez Rodriguez and Adriana Patricia Valbuena Arias, and their children, Miguel Angel Rodriguez Valbuena and Juanita Rodriguez Valbuena, seek review of the Board of Immigration Appeals’ (“BIA”) decision affirming the Immigration Judge’s (“IJ”) order denying their application for asylum, withholding of removal under the Immigration and Nationality Act (“INA”), and relief under the Convention Against Torture (“CAT”). On appeal, they argue that: (1) substantial evidence did not support the IJ’s adverse credibility determination, and, moreover, that the determination violated then* right to due process; and (2) on the merits, the IJ’s denial of asylum was erroneous. After thorough review, we dismiss the petition in part, and deny it in part.
We review jurisdictional questions de novo. Amaya-Artunduaga v. U.S. Att’y Gen., 463 F.3d 1247, 1250 (11th Cir.2006). When evaluating a petition for review of an order by the BIA denying an application for asylum and withholding of removal, we review findings of fact under the highly deferential substantial evidence test, and must affirm the decision if it is “supported by reasonable, substantial, and probative evidence on the record considered as a whole.” Forgue v. U.S. Att’y Gen., 401 F.3d 1282, 1286 (11th Cir.2005) (quotation omitted). Moreover, we review the record evidence in the light most favorable to the agency’s decision, and may not overturn findings of fact unless the record compels it. Id. at 1286-87. Because credibility determinations constitute factual findings, we review such determinations under the substantial evidence test, and will not substitute our judgment for that of the IJ or BIA. Id. at 1286.
When the BIA issues a separate decision, we review only that decision, “except to the extent that [the BIA] expressly adopts the IJ’s opinion.” Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir.2001). “Insofar as the [BIA] adopts the IJ’s reasoning, we will review the IJ’s decision as well.” Id. We, however, will not review the IJ’s decision as to an issue not addressed by the BIA. Instead, if necessary, we must remand the case to give the BIA “the opportunity to address the matter in the first instance in light of its own expertise.” INS v. Ventura, 537 U.S. 12, 16-17, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002).
As an initial matter, we lack jurisdiction over the petitioners’ due process claim and over their claim that the IJ erred when he found that Rodriguez was not a victim of past persecution on account of political opinion. We may not review a final order of removal unless “the alien has exhausted all administrative remedies available to the alien as of right.” 8 U.S.C. § 1252(d)(1). If a petitioner fails to exhaust available administrative remedies, we lack jurisdiction to consider the claim. Amaya-Artunduaga, 463 F.3d at 1250. In Amaya-Artunduaga, we held that an alien did not exhaust administrative remedies when he failed to raise his due process claim before the BIA. Id. at 1251.
*374In this case, we do not have jurisdiction to review the petitioners’ due process claim because they failed to exhaust administrative remedies by not raising that claim in their notice of appeal or brief to the BIA. See 8 U.S.C. § 1252(d)(1); Amaya-Artunduaga, 463 F.3d at 1250-51. We also cannot review their claim that the IJ erred by denying them asylum on the merits, because the BIA did not reach that issue, but simply affirmed the IJ’s adverse credibility determination and reasoned from there. See Ventura, 537 U.S. at 16-17, 123 S.Ct. 353. We therefore dismiss the petition as to these two claims.
We also reject the petitioners’ argument that substantial evidence did not support the IJ’s adverse credibility determination. An alien who arrives in or is present in the United States may apply for asylum. 8 U.S.C. § 1158(a)(1). The Attorney General has discretion to grant asylum if the alien meets the INA’s definition of a “refugee.” 8 U.S.C. § 1158(b)(1)(A). A “refugee” is:
any person who is outside any country of such person’s nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.
8 U.S.C. § 1101(a)(42)(A). The asylum applicant carries the burden of proving statutory “refugee” status. Al Najjar, 257 F.3d at 1284. To establish asylum eligibility, the alien must, with specific and credible evidence, establish (1) past persecution on account of political opinion or any other protected ground, or (2) a well-founded fear that political opinion or any other protected ground will cause future persecution. 8 C.F.R. § 208.13(a) and (b). To qualify for withholding of removal, an applicant must establish that it is more likely than not that the applicant’s “life or freedom would be threatened on account of race, religion, nationality, membership in a particular social group, or political opinion.” Mendoza v. U.S. Att’y Gen., 327 F.3d 1283, 1287 (11th Cir.2003) (citing 8 U.S.C. § 1231(b)(3)(A)). When a petitioner fails to establish a claim of asylum on the merits, that petitioner “necessarily fails to establish eligibility for withholding of removal.” Forgue, 401 F.3d at 1288 n. 4. This is because the standard for withholding of removal is significantly higher than the asylum standard. See Amaya-Artunduaga, 463 F.3d at 1249 n. 3. If an IJ makes a finding that a petitioner is not entitled to asylum, that IJ is “not obligated to make specific findings with respect to withholding of removal.” Id.
An applicant’s testimony, if credible, may carry that applicant’s burden of proof without corroboration. 8 C.F.R. § 208.13(a). “Conversely, an adverse credibility determination alone may be sufficient to support the denial of an asylum application.” Forgue, 401 F.3d at 1287. Nevertheless, if an applicant who is not a credible witness produces other evidence of persecution aside from his testimony, the IJ and BIA must consider that evidence. Id. “The weaker an applicant’s testimony, however, the greater the need for corroborative evidence.” Yang v. U.S. Att’y Gen., 418 F.3d 1198, 1201 (11th Cir.2005).
In order to enable our review of credibility findings, the IJ must make a clean, explicit determination of credibility. Id. “Once an adverse credibility finding is made, the burden is on the applicant alien to show that the IJ’s [and BIA’s] credibility decision was not supported by specific, cogent reasons or was not based on substantial evidence.” Forgue, 401 F.3d at *3751287 (quotation omitted). “Indications of reliable testimony include consistency on direct examination, consistency with the written application, and the absence of embellishments.” Ruiz v. U.S. Att’y Gen., 440 F.3d 1247, 1255 (11th Cir.2006).
The Real ID Act of 2005 (“RIDA”), which amended the INA’s asylum provisions, provides:
Considering the totality of the circumstances, and all relevant factors, a trier of fact may base a credibility determination on the demeanor, candor, or responsiveness of the applicant or witness, the inherent plausibility of the applicant’s or witness’s account, the consistency between the applicant’s or witness’s written and oral statements (whenever made and whether or not under oath, and considering the circumstances under which the statements were made), the internal inconsistency of each such statement, the consistency of such statements with other evidence of record (including the reports of the Department of State on country conditions), and any inaccuracies or falsehoods in such statements, without regard to whether an inconsistency, inaccuracy, or falsehood goes to the heart of the applicant’s claim, or any other relevant factor.
Pub.L. No. 109-13, § 101(a)(3), (d)(2), 119 Stat. 231, 303, 304-05 (codified at 8 U.S.C. §§ 1158(b)(l)(B)(iii), 1229a(c)(4)(C)). This provision of RIDA applies to asylum applications filed after May 11, 2005. Pub.L. No. 109-13, § 101(h)(2), 119 Stat. at 305.
In this case, the IJ made a clean adverse credibility determination against Rodriguez. The IJ explicitly found Rodriguez’s testimony inconsistent and not credible. See Yang, 418 F.3d at 1201. Moreover, substantial evidence supported that determination. The IJ noted, and Rodriguez now admits, that Rodriguez’s wife’s testimony contradicted Rodriguez’s testimony regarding at what time and to whose house in Bogotá Rodriguez returned after the roadblock shooting incident. While the discrepancy regarding the time is relatively minor, the discrepancy regarding at whose house Rodriguez and his wife were staying at the time is stark. Under RIDA, which applies to this case, the IJ was free to base his credibility determination on this inconsistency of Rodriguez’s testimony “with other evidence of record,” such as his wife’s testimony. 8 U.S.C. §§ 1158(b)(l)(B)(iii).
In addition, the BIA also considered Rodriguez’s nontestimonial evidence. See Forgue, 401 F.3d at 1287. The BIA expressly explained how Rodriguez’s submitted documents, including photographs of the car, a newspaper article, and Sermiento’s death certificate, failed to corroborate his testimony. And since Rodriguez’s testimony contradicted his wife’s testimony on two grounds, the need for corroborative evidence was all the greater. See Yang, 418 F.3d at 1201.
Finally, because the IJ did make a clean credibility finding, it is Rodriguez’s burden to show that the finding was not supported by specific, cogent reasons, or was not based on substantial evidence. See Forgue, 401 F.3d at 1287. Rodriguez, however, cannot bear that burden here because all of his arguments are without merit. First, because RIDA applies to the case, the IJ was free to base his credibility finding on inconsistencies that did not go the heart of Rodriguez’s claim. See 8 U.S.C. §§ 1158(b)(l)(B)(iii). Second, while Rodriguez in his brief argues that “relevant and persuasive evidence” explained the alleged discrepancies, he does not, and cannot, point to any such evidence. Third, the discrepancies were not due to his wife’s lack of personal knowledge of the details of the incidents. The discrepancies concerned facts squarely within her personal knowledge, namely, where she was staying on December 20, 2005, and at what *376time Rodriguez returned there that night. Moreover, her testimony does not indicate that it was based on anything other than her personal knowledge of those facts. Fourth, even if Rodriguez’s own testimony closely mirrored his application addendum statement, that consistency did not negate the inconsistencies between his and his wife’s testimony. And lastly, given that Rodriguez bore the burden of establishing that he was entitled to relief, it was not the IJ’s duty to bring the discrepancies to the attention of the witnesses. See Al Najjar, 257 F.3d at 1284. These were not mere ambiguities that reasonably called for clarification on the record.
Because Rodriguez cannot establish that the adverse credibility finding was not based on substantial evidence, and given that such a finding is sufficient to support the denial of asylum, and, necessarily, withholding of removal, we deny the petition regarding this claim. See Forgue, 401 F.3d at 1287,1288 n. 4.
PETITION DISMISSED IN PART, DENIED IN PART.
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ON MOTION
ORDER
Upon consideration of Dixon H. Isaac’s motion to voluntarily dismiss his appeal,
IT IS ORDERED THAT:
(1) The motion is granted.
(2) Each side shall bear its own costs.
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Judgment
PER CURIAM.
This CAUSE having been heard and considered, it is ORDERED and ADJUDGED:
AFFIRMED. See Fed. Cir. R. 36.
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SUMMARY ORDER
Petitioner Tak Man Lee, a native and citizen of the People’s Republic of China, seeks review of a January 14, 2009 order of the BIA denying his motion to reopen. In re Tak Man Lee, No. A070 905 453 (B.I.A. Jan. 14, 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. Kaur v. BIA, 413 F.3d 232, 233 (2d Cir.2005) (per curiam). 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. 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 circumstances 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 found that Lee’s motion to reopen did not qualify for such an exception.
Indeed, Lee failed to establish sueh circumstances based on the birth of his U.S. citizen children. See Li Yong Zheng v. U.S. Dep’t of Justice, 416 F.3d 129, 130-31 (2d Cir.2005); see also Wei Guang Wang v. BIA, 437 F.3d 270, 273-74 (2d Cir.2006). As the BIA noted, the country conditions evidence that Lee cited in his motion to reopen stated that enforcement of the family planning policy had continued as opposed to stating that conditions had changed. Here, aside from referencing his own unsupported statement in his motion to reopen that the Chinese family planning policy had “tightened,” Lee cites evidence that is not in the record of his case; however, in considering a petition for review of a final order of removal, we must “decide the petition only on the administrative record on which the order of removal is based.” 8 U.S.C. § 1252(b)(4)(A).
*464For 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 Smartix International Corporation (“plaintiff” or “Smartix”) appeals from a September 30, 2008, 2008 WL 4444554, judgment of the District Court dismissing plaintiffs complaint. On appeal, plaintiff argues that the District Court erred in dismissing plaintiffs RICO and RICO conspiracy claims alleging that defendants-appellees, MasterCard International LLC, MasterCard International Incorporated, and Eric Petrosinelli (collectively “defendants”) conspired to steal Smartix’s proprietary information as insufficiently pleaded. We assume the parties’ familiarity with the facts and procedural history of this case.
We review a district court’s dismissal of a complaint pursuant to Rule 12(b)(6) de novo, “construing the complaint liberally, accepting all factual allegations in the complaint as true, and drawing all reasonable inferences in the plaintiffs favor.” Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir.2002); see also ATSI Commc’ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir.2007). Although a complaint need not make detailed factual allegations, a plaintiffs complaint must provide “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Under Twombly (and confirmed by Ashcroft v. Iqbal, — U.S. —, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009)), Rule 8 of the Federal Rules of Civil Procedure requires that a plaintiff allege in its complaint “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570, 127 S.Ct. 1955. To meet this standard, plaintiffs must “nudge[] their *466claims across the line from conceivable to plausible.” Id.
“[I]n order to establish a RICO violation under § 1962(e), a plaintiff ... must allege and prove four elements: (1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity.” City of N.Y. v. Smokes-Spirits.com, Inc., 541 F.3d 425, 439 (2d Cir.2008) (quotation marks omitted). To survive a motion to dismiss, a plaintiff must sufficiently plead each of these elements to meet the standards set forth in Twombly and Iqbal. Smokes-Spirits.com, Inc., 541 F.3d at 439. Thus, if we conclude that the District Court properly found that the complaint failed to sufficiently plead at least one element of a RICO violation, then we will affirm the order of the District Court.
The RICO statute defines an “enterprise” as “any individual, partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact although not a legal entity.” 18 U.S.C. § 1961(4). To demonstrate an “association-in-fact” enterprise, as Smartix alleges, a plaintiff must allege facts showing the existence of a “group of persons associated together for a common purpose of engaging in a course of conduct.” United States v. Turkette, 452 U.S. 576, 583, 101 S.Ct. 2524, 69 L.Ed.2d 246 (1981); see also First Capital Asset Mgmt., Inc. v. Satinwood, 385 F.3d 159, 173 (2d Cir.2004). There must also be a “nexus ... between the enterprise and the racketeering activity that is being conducted.” First Capital, 385 F.3d at 174.
Although Smartix alleges that defendants conspired over a two-and-a-half year period beginning in 2001, Smartix’s amended complaint fails to establish the existence of RICO enterprise in 2001 or 2002. Before the alleged “secret meeting” that took place in February 2003 when defendants allegedly agreed to steal Smartix’s proprietary source code, Smartix alleges only that Petrosinelli, in his capacity as marketing executive at Smartix, “hit it off’ with MasterCard and MBNA representatives and then “solidif[ied] his relationship [with] MBNA and MasterCard.” J.A. 264-65. That a marketing executive developed a strong relationship with his employer’s major clients does not establish a RICO enterprise.
Furthermore, Smartix fails to establish that there was a nexus between the enterprise and the racketeering conduct. Assuming that there was an enterprise in 2001 and 2002, the only racketeering activity in furtherance of their conspiracy was Petrosinelli’s alleged wire fraud in June 2001. Again, even assuming that Petrosinelli illegally obtained access to Smartix’s proprietary information in June 2001 and began transmitting it to his personal computer in Connecticut, Smartix fails to plausibly allege that this activity was at the behest of MBNA or MasterCard. Without a plausible allegation connecting the alleged racketeering activity with the enterprise, Smartix failed to plead sufficient facts to establish a plausible RICO violation. Thus, we conclude that the District Court did not err in dismissing Smartix’s amended complaint.
CONCLUSION
For the reasons stated above, the judgment of the District Court is AFFIRMED.
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SUMMARY ORDER
Plaintiff Uzo Akujuo, pro se, appeals from an order of the district court granting Defendants’ motion for summary judgment and dismissing his claims under the First, Fourth, Fifth, Ninth, and Fourteenth Amendments to the United States ■Constitution, as well as under 42 U.S.C. §§ 1981 & 1985. We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.
We review orders granting summary judgment de novo. Woodman v. WWOR-TV, Inc., 411 F.3d 69, 75 (2d Cir.2005). Our review of the record confirms that the district court properly granted Defendants’ motion for summary judgment, and we affirm for substantially the reasons set out in the court’s thorough and well-reasoned August 1, 2008 memorandum decision and order.
We have considered all of Akujuo’s remaining arguments, and they are without merit. For the foregoing reasons, the judgment of the district court is hereby AFFIRMED.
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SUMMARY ORDER
Plaintiff-Appellant Charlene Morisseau appeals from a judgment of the United States District Court for the Southern District of New York (Kaplan, J.), entered December 4, 2007, 2007 WL 4292030, granting defendants’ motion for summary judgment and dismissing the complaint; a Memorandum Opinion entered January 23, 2008, 532 F.Supp.2d 595, denying Morisseau’s motion to amend the judgment; and an order entered February 7, 2008, denying Morisseau’s motion for reconsideration. We assume the parties’ familiarity with the facts, procedural history, and specification of issues on appeal.
We have considered all of Morisseau’s arguments on appeal and find them without merit. Therefore, the judgment of the district court is AFFIRMED.
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SUMMARY ORDER
Xiang Jin Zheng, a native and citizen of the People’s Republic of China, has filed a petition for review of an August 6, 2007 order of the BIA declining to reopen her deportation proceedings. In re Xiang Jin Zheng, No. A 073 177 441 (B.I.A. Aug. 6, 2007). We assume the parties’ familiarity with the underlying facts and procedural history in this case.
I. The BiA’s April 2005 Decision
Though she filed a petition for review that was timely as to the BiA’s August 2007 order, Zheng also challenges an April 2005 BIA order, in which it reversed the decision of an immigration judge granting asylum. The government argues that this Court lacks jurisdiction to review the BiA’s April 2005 decision. We agree. This Court has jurisdiction to consider “final” orders of removal in immigration cases, see 8 U.S.C. § 1252(a)(1), and we have held that “a BIA order denying relief from removal and remanding for the sole purpose of considering voluntary departure is a final order of removal that this Court has jurisdiction to review.” See Alibasic v. Mukasey, 547 F.3d 78, 83-84 (2d Cir.2008); see also Arias Chupina v. Holder, 570 F.3d 99, 103-05 (2d Cir.2009)(per curiam). Although Zheng filed a timely petition for review of the BiA’s April 2005 decision, she withdrew it with prejudice. Because the current petition for review is timely only with respect to the BiA’s August 2007 order, we lack jurisdiction to address the BiA’s April 2005 decision. See Stone v. INS, 514 U.S. 386, 405, 115 S.Ct. 1537, 131 L.Ed.2d 465 (1995) (holding that the Court treats each petition for review as challenging only the BIA decision from which it was timely filed); Samuels v. Northern Telecom, Inc., 942 F.2d 834, 837 (2d Cir.1991) (“Res judicata may not be avoided on the basis of ... an attorney’s ill-considered decision to enter into an all-encompassing stipulation of withdrawal with prejudice.”). Accordingly, Zheng’s petition for review is dismissed to the extent she challenges the BiA’s April 2005 order.
II. The BiA’s August 2007 Order
We review the BiA’s denial of a motion to reopen for abuse of discretion. *501Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir.2006)(per curiam). Where 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 abuse its discretion in denying Zheng’s motion to reopen because she failed to demonstrate her 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). We have previously reviewed the BIA’s consideration of evidence similar to that which Zheng submitted and have found no error in its conclusion that such evidence is insufficient to establish either material changed country conditions or an objectively reasonable fear of persecution. See Jian Htii 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”). Nothing in the record compels us to conclude, as Zheng argues, that the BIA ignored the evidence she submitted or the arguments she made, evidence and arguments the BIA is asked to consider time and again. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 337 n. 17 (2d Cir.2006). Finally, we decline Zheng’s request to remand for the agency to consider evidence that was not in the administrative record. See Xiao Xing Ni v. Gonzales, 494 F.3d 260, 269 (2d Cir.2007); see also 8 U.S.C. § 1252(b)(4)(A).
For the foregoing reasons, the petition for review is DISMISSED, in part, and DENIED, in part. 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
Substantially for the reasons stated in the District Court’s Opinion and Order dated November 4, 2008, 594 F.Supp.2d 334, and Memorandum and Order dated January 28, 2009, 2009 WL 311362, we conclude that the defendant’s motion for judgment on the pleadings was properly granted. Accordingly, we AFFIRM the judgment of the District Court.
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*525SUMMARY ORDER
Appellants, three members of a class that settled a securities fraud action for $750 million, object to the district court’s award of attorneys’ fees to appellees in the amount of 16% of the common fund’s recovery and $3,314,399.90 in expenses. We review the form and content of the notice given to class members, see Masters v. Wilhelmina Model Agency, Inc., 473 F.3d 423, 438 (2d Cir.2007), and the reasonableness of the fee award, see Goldberger v. Integrated Res., Inc., 209 F.3d 43, 47-48 (2d Cir.2000), for abuse of discretion, deferring to the “district court, which is intimately familiar with the nuances of the ease,” In re Bolar Pharm. Co. Sec. Litig., 966 F.2d 731, 732 (2d Cir.1992). In doing so, 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. Notice to the Class
Appellants submit that notice of the proposed fee award was not “directed to class members in a reasonable manner,” Fed.R.Civ.P. 23(h)(1), because the notice did not include the date of appellees’ motion for attorneys’ fees or indicate how class members could access the motion document. This argument reduces to a challenge to the form and content of the notice, which we review for abuse of discretion, see Masters v. Wilhelmina Model Agency, Inc., 473 F.3d at 438, and we detect none here.
The notice clearly states that “Plaintiffs’ Counsel are moving the Court to award attorneys’ fees not to exceed twenty percent (20%) of the Gross Settlement Fund, and for reimbursement of expenses incurred in connection with the prosecution of this Action in the approximate amount of five million dollars ($5,000,000).”1 Notice of Pendency of Class Action and Proposed Settlement, Motion for Attorneys’ Fees and Settlement Fairness Hearing at 3. The notice also informed class members as follows: “[Y]ou can object to ... the application by Plaintiffs’ Co-Lead Counsel for an award of fees and expenses. You may write the Court setting out your objection.” Id. at 14. The notice provided the addresses of the court and all counsel, so that class members could appropriately serve their objections, and it informed class members of the fairness hearing, at which they could appear to express their disapproval. That many class members— not just the three appellants—submitted objections to the court confirms that the notice was reasonably directed to class members as required by Rule 23.
2. Reasonableness of Fee
a. Contract Attorney Time
Appellants submit that the fee award of $3,314,399.90 was unreasonable because the district court should not have included contract attorney time in its “lodestar” calculation.2 In fact, the district court did *526not employ the lodestar method. Rather, it used the percentage method, which considers “less objective” factors to determine a fair fee as a percentage of the common fund’s recovery. See Goldberger v. Integrated Res., Inc., 209 F.3d at 47. We identify no abuse of discretion in the district court’s thorough application of these factors. See Carlson v. Xerox Corp., 596 F.Supp.2d 400 (D.Conn.2009).
Thus, appellants challenge only the district court’s lodestar cross check of its percentage fee determination. See, e.g., Goldberger v. Integrated Res., Inc., 209 F.3d at 50 (“[W]e encourage the practice of requiring documentation of hours as a ‘cross check’ on the reasonableness of the requested percentage.”). Here, the district court reduced the percentage fee award from the requested 20% to 16% based on its Goldberger analysis. In undertaking the lodestar cross check, the court concluded that “[t]he only argument against [the 1.25 multiplier imposed by the court, as opposed to the 1.56 multiplier counsel requested] is that it is simply too low.” Carlson v. Xerox Corp., 596 F.Supp.2d at 413. The district court noted that, had it made a 90% reduction in contract attorney time in its lodestar calculation, the resulting multiplier would be 3.59, still below the 3.6 average and in line with the 3.1 median for similar cases. Thus, even if we were to accept appellants’ argument that contract attorney time should be counted as an expense rather than as part of the lodestar calculation—a theory open to debate, see In re Enron Corp. Sec. Deriv. & “ERISA ” Litig., 586 F.Supp.2d 732, 782-83 (S.D.Tex.2008); In re Tyco Int’l, Ltd. Multidistrict Litig., 535 F.Supp.2d 249, 272 (D.N.H.2007)—we could not conclude that the fee awarded in this case is unreasonable.
b. Reasonable Paying Client
Appellants also urge us to set aside the fee because it exceeds the amount a reasonable client would be willing to pay. Cf. Arbor Hill Concerned Citizens Neighborhood Ass’n v. County of Albany, 522 F.3d 182, 190 (2d Cir.2008). We are not persuaded. Unlike in the context of fee-shifting statutes, which we examined in Arbor Hill, attorneys’ fees are awarded in common fund cases in order to “prevent[] unjust enrichment of those benefitting from a lawsuit without contributing to its cost.” Goldberger v. Integrated Res., Inc., 209 F.3d at 47. Thus, we have said that attorneys who create a fund are “entitled to a reasonable fee—set by the court—to be taken from the fund.” Id.; see also In re Agent Orange Prod. Liab. Litig., 818 F.2d 216, 222 (2d Cir.1987) (“[A]n attorney who creates a fund for the benefit of a class should receive compensation from the fund for his efforts.”). This fee does not necessarily approximate what a client would pay; rather, it must reflect “the actual effort made by the attorney to benefit the class.” Central States Se. and Sw. Areas Health & Welfare Fund v. MerckMedco Managed Care, LLC, 504 F.3d 229, 249 (2d Cir.2007) (internal quotation marks omitted). Because the district court properly considered the relevant factors, see Goldberger v. Integrated Res., Inc., 209 F.3d at 50, and reached a reasonable conclusion within its discretion, we will not disturb its judgment.
*527We have considered appellants’ other arguments and conclude that they lack merit. Accordingly, we AFFIRM the judgment of the district court.
. Appellants assert that "[t]he phrase ‘not to exceed [twenty percent (20%)],' in isolation, is meaningless, and does not permit any class member to make an informed evaluation of the fee request or to draft an effective opposition to it.” Appellants' Br. at 9. We do not decide whether this proposition is true in the abstract because the notice in this case did place the 20% figure in context by (1) calculating the proposed fee on a per-share basis, (2) explaining the work attorneys performed, and (3) clarifying the customary practice in similar class actions. In this regard, appellees' actual motion for fees was less detailed than the notice to class members, because it sought an award of 20% of the settlement and reimbursement for expenses without any additional explanation.
. The lodestar method calculates fees as “the product of the attorney’s usual hourly rate and the number of hours worked.” Arbor Hill Concerned Citizens Neighborhood Ass'n v. *526County of Albany, 522 F.3d 182, 186 (2d Cir.2008). We have cautioned that "[t]he meaning of the term 'lodestar' has shifted over time, and its value as a metaphor has deteriorated to the point of unhelpfulness,” because even courts that choose to employ the lodestar method must still weigh various equitable factors to arrive at a "presumptively reasonable fee.” Id. at 190.
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SUMMARY ORDER
Petitioner, Wen Fang Wang, a native and citizen of the People’s Republic of China, seeks review of a March 27, 2008 order of the BIA denying her motion to reopen her removal proceedings. In re Wen Fang Wang, No. A 074 857 411 (B.I.A. Mar. 27, 2008). We assume the parties’ familiarity with the underlying facts and procedural history of the case.
We review the BIA’s denial of a motion to reopen for abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir.2006). Where 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).
We find that the BIA did not err in denying Wang’s untimely motion to reopen. 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, the deadline may be equitably tolled to accommodate claims of ineffective assistance of counsel, so long as the movant has exercised “due diligence” in vindicating his or her rights. See Cekic v. INS, 435 F.3d 167, 171 (2d Cir.2006).
I. Ineffective Assistance of Counsel
We find no error in the BIA’s conclusion that Wang failed to exercise due diligence in pursuing her ineffective assistance of counsel claim. See icl. In her motion, Wang asserted that she was *562unaware that she had been ordered removed in absentia, that her prior attorney had filed in 2001 a motion to reopen in an effort to rescind that order, or that he had filed an appeal of the Immigration Judge’s denial of that motion. The BIA did not abuse its discretion in rejecting that assertion where Wang submitted a signed affidavit in support of the 2001 motion and signed the notice of entry of appearance her attorney filed with the BIA on appeal. Therefore, as the BIA properly found, Wang failed to exercise due diligence in pursuing her ineffective assistance of counsel claim where she knew of her in absentia order, the motion, and the appeal by at least May 2001, and provided no explanation for her seven-year delay in filing her motion to reopen. See Rashid v. Mukasey, 533 F.3d 127, 132 (2d Cir.2008) (finding no exercise of due diligence where fourteen months elapsed from the time the petitioner knew or should have known of the alleged ineffective assistance). Wang asserts before this Court that she did not sign the affidavit and notice of appearance and that they were fraudulently prepared by her prior attorney. However, because she made no such claim before the BIA, we decline to consider her argument. Steevenez v. Gonzales, 476 F.3d 114, 117 (2d Cir.2007) (“To preserve an issue for judicial review, the petitioner must first raise it with specificity before the BIA.”); see also 8 U.S.C. § 1252(b)(4)(A) (stating that “the court of appeals shall decide the petition only on the administrative record on which the order of removal is based”).
II. Changed Country Conditions
Additionally, substantial evidence supports the BIA’s finding that Wang failed to demonstrate changed country conditions excusing the untimely filing of . her motion. See 8 U.S.C. 1229a (c)(7)(C)(ii); Jian Hui Shao, 546 F.3d at 169. The BIA based its conclusion that Wang had not demonstrated changed country conditions on the fact that it had already considered many of the documents Wang submitted and concluded that such evidence did not show a material change in the family planning policy of the Fujian Province. This was entirely proper. We have previously reviewed the BIA’s consideration of evidence similar to that which Wang submitted and have found no error in its conclusion that such evidence was insufficient to establish material changed country conditions or an objectively reasonable fear of persecution. See Jian Hui Shao, 546 F.3d at 169-72 (concluding, in a case where similar evidence was submitted, that the BIA had pointed to substantial evidence raising doubts that the petitioner would be persecuted, and 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”). Nothing in the record compels us to conclude that the BIA ignored the evidence Wang submitted or the arguments she made, evidence and arguments the BIA is asked to consider time and again. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 338 n. 17 (2d Cir.2006). Moreover, the BIA did not abuse its discretion in declining to accord significant weight to the affidavit of Wang’s cousin or the village notice because she did not provide the original documents. See id. at 342 (finding that the weight afforded to the applicant’s evidence in immigration proceedings lies largely within the discretion of the agency).
Finally, the BIA’s determination that Wang was ineligible to file a successive asylum application was not in error. See *563Yuen Jin v. Mukasey, 538 F.3d 143, 156, 158-59 (2d Cir.2008).**
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
We note that Wang claims that she married a U.S. citizen, that her U.S. citizen husband filed a visa petition on her behalf, and that this petition was approved in 2003, and therefore she is eligible for adjustment of status. The BIA did not address this claim because Wang did not offer any evidence in support of it or submit an application for adjustment of status. We do not speak to Wang’s eligibility for adjustment of status based on her marriage.
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OPINION
PER CURIAM.
Dmitri Gorbaty, proceeding in forma pauperis, appeals from the order of the United States District Court for the District of New Jersey dismissing his civil complaint. For the reasons that follow, we will affirm summarily.
I.
On or about February 8, 2009, Gorbaty received two “Cancellation of Debt” notices on Internal Revenue Service (“IRS”) form 1099-C, from Portfolio Recovery Associates, LLC (“Portfolio”). The notices contained a description of the cancelled debt, the date the debt was cancelled, and the amount. The notices also informed Gorbaty that the IRS may impose a negligence penalty or other sanction if the can-celled debt is not accurately reported as taxable income. On February 16, 2009, Gorbaty sent a letter to Portfolio disputing the financial obligations reported on the 1099-C forms, and requesting verification of the alleged debt. Gorbaty never received any response from Portfolio, and thereafter, engaged the services of a certified public accountant for advice and counsel. On May 20, 2009, Dmitri Gorbaty filed suit against Portfolio in the United States District Court for the District of *581New Jersey, for alleged violations of the Fair Debt Collection Practices Act, 15 U.S.C. 1692, et seq. (“FDCPA”).
On July 21, 2009, 2009 WL 2222924, pursuant to its screening authority under 28 U.S.C. § 1915(e)(2)(B)(ii), the District Court entered an order dismissing Gorbaty’s complaint for failure to state a claim. Gorbaty filed a timely notice of appeal on August 6, 2009. Fed. R.App. P. 4(a)(1).
II.
We have jurisdiction over this appeal under 28 U.S.C. § 1291.1 Our review over the District Court’s sua sponte dismissal of Gorbaty’s complaint for failure to state a claim is plenary. See Allah v. Seiverling, 229 F.3d 220, 222 (3d Cir.2000). To state a claim, the plaintiffs factual allegations “must be enough to raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). A claim is more than merely speculative when the factual content alleged “allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, - U.S. -, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). We may take summary action if the appeal presents no substantial question. See 3d Cir. L.A.R. 24.7; I.O.P. 10.6.
III.
Gorbaty claims that in sending the 1099-C forms and failing to verify their contents, Portfolio violated sections 1692e, 1692f, 1692g, and 1692j of the FDCPA. Section 1692e prohibits debt collectors from using any false, deceptive, or misleading means in connection with the collection of a debt. Similarly, § 1692f prohibits a debt collector from using unfair or unconscionable means to collect a debt. Section 1692j makes it unlawful to furnish any form to a consumer, knowing that form would be used to create a false belief that a person other than the creditor of that consumer is participating in the collection of a debt. Section 1692g requires that within five days after the initial communication with a consumer in connection with the collection of any debt, a debt collector shall send the consumer a written notice of the amount of the debt, the name of the creditor to whom the debt is owed, and a statement informing the consumer how to dispute or request verification of the debt.
A “threshold requirement for application of the FDCPA is that the prohibited practices are used in an attempt to collect a ‘debt.’ ” Zimmerman v. HBO Affiliate Group, 834 F.2d 1163, 1167 (3d Cir.1987) (emphasis added). Although Gorbaty alleges that Portfolio is a debt collector as defined by 15 U.S.C. § 1692a(6), there is no allegation that Portfolio was seeking the payment of any money in connection with the cancelled debt, or ever made any attempt to collect a debt from Gorbaty. See Piper v. Portnoff Law Assocs., Ltd., 396 F.3d 227 (3d Cir.2005) (holding that a communication was used in an attempt to collect a debt where it clearly demanded payment in satisfaction of a debt). Nor has Gorbaty offered any facts to support his allegations that Portfolio used false, unconscionable, or deceptive forms in the collection of a debt. Although Gorbaty may object to the 1099-C forms he received, we agree with the District Court that the mailing and receipt of a Cancellation of Debt notice by itself, without any indication that the notice was used in con*582nection with the collection of a debt, does not state a claim for a violation of the FDCPA.
Gorbaty argues that in acquiring alleged consumer debt and then canceling it in order to receive tax benefits from the IRS, Portfolio is acting indirectly as a debt collector subject to the FDCPA. He analogizes Portfolio’s debt collection methods to the garnishing of wages: Portfolio collects a tax benefit from the IRS, which the IRS will collect' as a tax liability from Gorbaty. This argument, however, ignores the distinction between post-debt conduct, which is not protected by the FDCPA, and conduct “in connection with the collection of any debt,” which is protected. 15 U.S.C. § 1692g. When a debt is cancelled, there is no debt and there can be no debt collection. Portfolio’s actions, as alleged, cannot be deemed to be “in connection” to a present debt collection proceeding based on any reasonable reading of the complaint.2
Accordingly, we agree with the District Court’s analysis of Gorbaty’s claims, that they failed as a matter of law to state a claim. We will affirm the judgment of the District Court.
. Although the District Court dismissed Gorbaty’s complaint without prejudice, the District Court's dismissal of an in forma pauperis complaint under 28 U.S.C. § 1915 is "in essence” final. Deutsch v. United States, 67 F.3d 1080, 1083 (3d Cir.1995).
. We note that, even though Portfolio's alleged conduct regarding the 1099-C forms is not actionable under the FDCPA, Gorbaty is not without remedy. If Gorbaty’s allegations are true, that the 1099-C forms contain false information, Gorbaty may dispute the amount of cancelled debt with the IRS to reduce his unwanted tax liability, or bring suit against Portfolio under alternative provisions of law.
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OPINION
PER CURIAM.
Shawn A. Lockett, Sr., a Pennsylvania state inmate, filed this civil rights action under 42 U.S.C. § 1983 against Dominick DeRose, the Warden at Dauphin County Prison, asserting several violations of his constitutional rights.1 Lockett filed his complaint on August 18, 2008, in the Dauphin County Court of Common Pleas. The state court transferred the action to the United States District Court for the Middle District of Pennsylvania, where it was entered on the docket on September 8, 2008.
The District Court granted Lockett leave to proceed informa pauperis. After service of the complaint, Warden DeRose filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), arguing, inter alia, that Lockett, by his own admission in the complaint, did not exhaust administrative remedies through the prison grievance process prior to filing suit, as required under 42 U.S.C. § 1997e(a).2 Lockett responded by arguing that he “did put in grievances” but had “no response] back from the warden.” He further contended that all of his belongings were confiscated after June 16, 2008, “so th[ere] was no way ... to follow up -with the grievances ... put in” because he was “without paper or anything to write with.”
The District Court granted the motion to dismiss. It noted that Lockett signed the complaint on July 28, 2009, and that it was clear from the face of the complaint that Lockett did not exhaust the grievance process prior to that date. The District Court rejected Lockett’s contention that he could not exhaust due to a lack of paper or pen, observing that this contention is inconsistent with the factual allegations set forth in the complaint. As averred in the complaint, Lockett’s belongings were confiscated following a June 16, 2008, incident, but were returned on July 10, 2008. Lockett received a write up sometime after the June 16 incident, and he was able to appeal that write up to Warden DeRose, who responded to the appeal before Lockett filed his complaint. The District Court noted that these factual allegations under*584mine Lockett’s subsequent contention that Warden DeRose had failed to respond to his grievances, or that Lockett was unable to “follow up with the grievances ... put in.” Accordingly, the District Court dismissed Lockett’s complaint, without prejudice, for failure to exhaust available administrative remedies prior to filing suit.
Lockett timely filed a motion for reconsideration, to which he attached copies of: (i) a grievance response dated August 19, 2008, from the Commissioner of the Prison Board of Inspectors, advising Lockett that a grievance he had filed was denied, and that he could appeal further to the full Prison Board; and (ii) a grievance response dated September 10, 2008, from the Prison Board Solicitor, advising that the Prison Board had denied Lockett’s appeal, and that Lockett could appeal further to the Dauphin County Solicitor. Lockett did not submit evidence of an appeal to the Dauphin County Solicitor, nor did he claim to have pursued such an appeal.
The District Court denied reconsideration. It explained that, even if it is assumed that Lockett filed an appeal to the Dauphin County Solicitor and completed the grievance process, his exhaustion of administrative remedies occurred only after the filing of his complaint. Because the Prison Litigation Reform Act (“PLRA”) requires a prisoner to exhaust before filing suit, Lockett did not satisfy the exhaustion requirement.
Lockett timely filed this appeal, and he has been granted leave to proceed in for-ma pauperis. This Coui’t has appellate jurisdiction under 28 U.S.C. § 1291. Because Lockett’s appeal lacks an arguable basis in law or fact, we will dismiss it pursuant to 28 U.S.C. § 1915(e)(2)(B).
As the District Court observed, the PLRA provides that an inmate must refrain from bringing suit “until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). “[T]he PLRA’s exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong.” Porter v. Nussle, 534 U.S. 516, 532, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002). Proper exhaustion requires that an inmate proceed through all available steps in the administrative review process, and that the inmate do so in accordance with established deadlines and procedural rules so that the reviewing body can addresses the issues raised. See Woodford v. Ngo, 548 U.S. 81, 90, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006). Courts have recognized that an inmate cannot satisfy the PLRA by exhausting administrative remedies after filing suit. See, e.g., Johnson v. Jones, 340 F.3d 624, 627 (8th Cir.2003) (“[I]n considering motions to dismiss for failure to exhaust under section 1997e(a), the district court must look to the time of filing, not the time the district court is rendering its decision, to determine if exhaustion has occurred. If exhaustion was not completed at the time of filing, dismissal is mandatory.”).
Here, Lockett dated his complaint July 28, 2008, it was filed in state court on August 18, 2008, and it was entered on the District Court’s docket on September 8, 2008. Assuming arguendo that September 8 reflects the date on which Lockett filed suit, it is clear from Lockett’s own representations and submissions that he did not complete the administrative review process prior to that date. Lockett received an intermediate-level response to his grievance from the Prison Board Solicitor on September 10. Assuming that Lockett pursued the next level in the administrative process through an appeal to the Dauphin County Solicitor, that appeal necessarily occurred after he had filed suit in *585federal court. Accordingly, the District Court properly granted the motion to dismiss and dismissed the complaint without prejudice for failure to comply with § 1997e(a).
For these reasons, we will dismiss the appeal pursuant to § 1915(e)(2)(B).
. Lockett sought damages and other relief based on, inter alia, an alleged denial of adequate medical care; denial of sanitary housing conditions; denial of access to the courts, to church services, to mail, and to the law library; a challenge to his placement in lock-down status; a challenge to receipt of a misconduct report; and prison officials' alleged use of excessive force to quell a disturbance.
. Lockett averred in the complaint that there is a grievance procedure available at Dauphin County Prison, that he filed a grievance concerning the facts relating to this complaint, but that he did not complete the grievance process before filing suit.
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OPINION
PER CURIAM.
Nazario Burgos appeals from an order of the United States District Court for the Eastern District of Pennsylvania. Because the appeal presents no substantial question, we will summarily affirm the District Court’s judgment.
Burgos filed a “Motion to Set Aside Judgment as Void Pursuant to Fed. R.Civ.P. Rule 60(b)(4)” in the District Court, seeking to have that court declare void a particular judgment entered by the Supreme Court of Pennsylvania. On August 18, 2009, the District Court entered, an order stating that it lacked jurisdiction to void a judgment entered by a state court, and indicated that if Burgos sought habeas corpus relief, he should file a petition on proper forms, which would be provided to him. Burgos then filed a document dated August 28, 2009, captioned “Motion to Set Aside Judgment, Relative to the Above-Captioned Matter, Entered by the U.S. District Court’s Magistrate Judge as Void.” In that document, Burgos stated that he sought to have the court set aside a judgment entered by a Magistrate Judge of the District Court on or about June 25, 2002 with regard to his petition filed pursuant to 28 U.S.C. § 2254. Bur-gos claimed that the Magistrate Judge lacked jurisdiction to consider the petition, because his claims had not been exhausted in state court. The District Court then entered an order noting that Burgos had already been instructed on how to proceed if he sought habeas relief, and dismissed the motion as moot. Burgos filed a timely notice of appeal.
This Court informed Burgos that it would consider summary action on his appeal, and would also consider whether a certificate of appealability was necessary. Burgos filed a response opposing summary action, arguing again that the District Court’s judgment at docket number 01-CV-02431 (regarding his § 2254 petition) was void because the District Court had lacked jurisdiction.
Although it is not clear whether Burgos disagrees with the District Court’s order entered on August 18, 2009, we note that the District Court properly found that it lacked jurisdiction to declare the state court judgment void. Even in the context of a timely-filed federal habeas proceeding, a federal court “has at most a circumscribed role in reviewing whether a state court properly applied its own law when it explicitly decided to exercise jurisdiction.” Lambert v. Blackwell, 387 F.3d 210, 239 (3d Cir.2004).
As noted above, Burgos completely changed course in his second motion filed in the District Court—instead of asking the Court to void a state court judgment, he asked the Court to void a judgment entered in his 2001 habeas proceeding. The District Court properly dismissed the motion as moot, as it had already directed the Clerk to close the case, *587and the motion was not a motion to reconsider the August 18, 2009 order. In any event, we note that Burgos has already attempted to challenge the § 2254 ruling by way of a Rule 60(b) motion. See Burgos v. DiGuglielmo, C.A. No. 06-1369 (3d Cir. June 22, 2006). In that case, we entered the following order:
Appellant’s request for a certificate of appealability is denied. To the extent Appellant’s Rule 60(b) motion challenged the District Court’s denial of habeas relief on procedural grounds, the motion properly was considered as a Rule 60(b) motion, and the District Court did not err in ruling that the motion was untimely. To the extent Appellant’s Rule 60(b) motion challenged the District Court’s denial of his habeas claims on the merits, the motion was a second or successive habeas petition, which the District Court could not consider without prior authorization from this Court pursuant to 28 U.S.C. § 2244(b)(3). Gonzalez v. Crosby [545 U.S. 524, 532-33], 125 S.Ct. 2641, 2648 [162 L.Ed.2d 480] (2005).
The same considerations would apply now. Burgos’s attempt to challenge the District Court’s ruling in his § 2254 proceeding on procedural grounds is now grossly untimely. See Moolenaar v. Gov’t of Virgin Islands, 822 F.2d 1342, 1348 (3d Cir.1987) (concluding that a Rule 60(b) motion, filed almost two years after an initial judgment, was not made within a reasonable time where the reason for the attack was available at the time of the initial judgment). To the extent he challenged the merits of the ruling in the § 2254 proceeding, his motion would be a second or successive habeas petition that the District Court lacked jurisdiction to consider. Robinson v. Johnson, 313 F.3d 128, 139-40 (3d Cir.2002); see also 28 U.S.C. § 2244(b)(2), (3).1
For the foregoing reasons, we will summarily affirm the District Court’s judgment.
. To the extent that Burgos' Rule 60(b) motion is construed as a challenge to the prior ruling in the § 2254 proceeding, a certificate of appealability is denied.
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OPINION
PER CURIAM.
Oleg Georgievich Amirov, a thirty-one-year-old native and citizen of Russia, petitions for review of a decision of the Board of Immigration Appeals (“BIA”) rejecting his claim for relief under the Convention Against Torture (“CAT”). We will grant the government’s motion for summary affirmance, which Amirov has not opposed, and deny the petition for review.
In 1997, Amirov was granted derivative asylee status in the United States in connection with his parents’ asylum application. That same year, he was convicted in a New York state court of, among other things, third-degree assault, and was sentenced to five years of probation. In 2007, Amirov was convicted in the United States District Court for the Northern District of Texas of possession with intent to distribute 100 kilograms or more of marijuana, and aiding and abetting; he was sentenced to sixty months in prison. In 2008, the government commenced removal proceedings, charging Amirov as removable on several grounds, including the commission of a crime involving moral turpitude and a controlled substance offense. Amirov conceded his removability before the Immigration Judge (“IJ”) and filed an application for deferral of removal under the CAT, claiming that he would likely be tortured in Russia because he is Jewish.
The IJ accepted the credibility of Amirov’s testimony, but denied relief upon consideration of the record evidence. The IJ concluded that Amirov had failed to show that it is more likely than not that the Russian government will act with a specific intent to torture him, or acquiesce to his torture. While the IJ found evidence that the Russian government may be unable or unwilling to protect Jews from acts of harassment and persecution, and while the IJ was -willing to presume that Amirov would be detained for questioning by immigration authorities upon his return to Russia, the IJ found no record evidence that Amirov is likely to be singled out for torture.
The BIA dismissed Amirov’s appeal on the basis of the IJ’s decision, supplemented with an analysis of its own. The BIA agreed that Amirov failed to establish that it is more likely than not that he will be tortured, explaining that, although there is evidence of anti-Semitism, harassment, and violence against Jews (i.e., evidence of persecution), Amirov did not present evi*589dence that the Russian government is involved in the systematic identification and torture of Jews. The BIA noted record evidence that there are anti-Semitic elements in Russian society, and that the Russian government has displayed an unwillingness to fully prosecute hate crimes, but it observed that Amirov cannot support a CAT claim merely by stringing together suppositions about what will happen upon his return. Given the “number and speculative nature” of the suppositions supporting Amirov’s claim, and the lack of evidence of pervasive and systematic torture of Jews, the BIA held that Amirov’s claim for CAT relief must fail. The BIA noted that Amirov did not show that violence in Russia against Jews is severe enough to qualify as torture, or is so pervasive as to establish a probability that Amirov would be singled out for torture with government acquiescence.
Amirov timely filed his petition for review, and he has moved for a stay of removal pending this Court’s review. The government opposes a stay and has moved for a summary disposition on the merits of the petition for review. Amirov, who is represented by counsel, has not filed a response in opposition to the motion for summary disposition. Because we conclude that Amirov’s petition for review presents “no substantial question,” 3d Cir. I.O.P. Ch. 10.6, we will grant the government’s motion and deny the petition for review.1
An alien seeking CAT relief must demonstrate “that it is ‘more likely than not’ that he or she will be tortured.” Pierre v. Att’y Gen., 528 F.3d 180, 186 (3d Cir.2008) (en banc). “In order to constitute torture, an act must be specifically intended to inflict severe physical or mental pain or suffering.” Id. That act must be “ ‘inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.’ ” Id. at 189 (quoting 8 C.F.R. § 208.18(a)(1)). It is not enough for public officials to be “willfully blind” to torturous acts; the officials must “have the goal or purpose of inflicting severe pain or suffering.” Id. at 190.
After a review of the full administrative record, we find no room to question the IJ and BIA’s stated reasons for denying CAT relief. At most, the record establishes the possibility that Amirov will suffer acts of persecution in Russia as a Jew. But as the IJ observed, the question raised by Amirov’s request for a deferral of removal under the CAT is not whether he will face persecution, but whether he will be singled out for torture. The record does not compel a conclusion contrary to the determination by the IJ and BIA that Amirov has failed to show that torture is more likely than not to occur, or, moreover, that any torturous act would be inflicted by or with the acquiescence of Russian officials. While Amirov presented evidence of violence directed against Jews in Russia, the record does not compel a conclusion that such violence amounts to a form of torture, *590or that it is so pervasive as to establish a probability that Amirov himself would be tortured.
For these reasons, we will grant the government’s unopposed motion for summary action and deny the petition for review. In light of this disposition, we also deny Amirov’s motion for a stay of removal pending review.
. We have jurisdiction under 8 U.S.C. § 1252(a). Where, as here, the BIA issues a decision that both adopts and supplements the IJ’s reasoning, this Court has jurisdiction to review the decisions of both the IJ and BIA. See, e.g., Xie v. Ashcroft, 359 F.3d 239, 242 (3d Cir.2004). Factual determinations underlying the denial of a CAT claim are reviewed under the substantial evidence standard, which means that this Court will not disturb those determinations if they are supported by reasonable, substantial, and probative evidence on the record considered as a whole. Tarrawally v. Ashcroft, 338 F.3d 180, 184 (3d Cir.2003). We regard such determinations as conclusive unless the record not only supports a contrary conclusion, but compels it. Abdille v. Ashcroft, 242 F.3d 477, 483-84 (3d Cir.2001).
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OPINION
SMITH, Circuit Judge.
Connie Palfrey appeals from the District Court’s entry of summary judgment against her and in favor of all Defendants. We will affirm.
I.
Because we write only for the benefit of the parties, we presume familiarity with the facts and recite them only briefly. Connie Palfrey was employed as a math teacher for Jefferson-Morgan School District (“JMSD”). She also held the ancillary position of computer coordinator. In April of 1999, Palfrey entered into a three-year employment contract to fill the new full-time position of technology administrator. Her contract was renewed in 2002 for another three-year term. In June of 2005, a majority of the members of the Board of JMSD voted not to renew her contract, and it expired according to its terms in August of that year.
Defendant Charles Rembold was hired by the Board of JMSD to be the Superintendent in August of 2001. At that time it *592was public knowledge that he was under investigation by the Pennsylvania Ethics Commission. On March 3, 2005, during Rembold’s employment with JMSD, the Ethics Commission contacted him to inform him that he was being investigated a second time. Rembold tendered his resignation to the Board that month, to be effective in August of 2005. In the interim, Rembold worked a greatly reduced schedule and used up his available leave time.
As part of its investigation, the Ethics Commission interviewed several JMSD employees and Board members, including some of the individual Defendants. Palfrey became aware that one of her subordinates was going to deliver the hard drive from Rembold’s computer to the Ethics Commission. Palfrey contacted the Ethics Commission in late March to arrange instead to turn over the hard drive herself. Palfrey was then subpoenaed to testify and did testify before the Ethics Commission in April of 2005.
At a Board meeting in May of 2005, Rembold informed the Board that his office had been broken into and that a document had been stolen. He believed the document was sent to the Ethics Commission. The record contains sufficient facts to establish, for summary judgment purposes, that Rembold informed the Board of his belief that Palfrey was responsible for these acts.
On June 2, 2005, Palfrey received a form letter over the stamped signature of Rem-bold informing her that her contract was being amended and would be available for her review upon completion. At a regularly scheduled Board meeting on June 22, 2005, the Board met in an executive session. Though Rembold was ex officio a non-voting member of the Board, he did not attend this meeting because he was hospitalized at the time. A majority of the Board voted not to renew Palfrey’s contract. Those members who voted in favor of renewing it pressed the other Board members for the reasons for their votes, but none were given. At the Board’s direction, JMSD’s solicitor sent a letter to Palfrey on June 27 informing her that her contract would not be renewed.
Palfrey filed this action in the United States District Court for the Western District of Pennsylvania asserting the following claims: First Amendment retaliation, violation of the Pennsylvania Whistleblower Act, breach of contract, wrongful discharge, and a claim under the Pennsylvania Public Official and Employee Ethics Act. Palfrey withdrew her whistleblower claim, and the District Court granted summary judgment in favor of all Defendants on her First Amendment claim. It then declined to exercise supplemental jurisdiction over the remaining state law claims and dismissed them pursuant to 28 U.S.C. § 1367(c)(3). Thus, only the First Amendment retaliation claim is before us. The District Court had jurisdiction over this case pursuant to 28 U.S.C. §§ 1331 and 1367. We have jurisdiction pursuant to 28 U.S.C. § 1291.
II.
We “exercise plenary review over the District Court’s grant of summary judgment and apply the same standard that the District Court should have applied.” Shuman ex rel Shertzer v. Penn Manor Sch. Dist., 422 F.3d 141, 146 (3d Cir.2005) (quotation omitted). Summary judgment is appropriate “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.” Fed.R.Civ.P. 56(c). The facts must be viewed in the light most favorable to the non-moving party and all *593reasonable inferences from the evidence must be drawn in her favor. Conopco, Inc. v. United States, 572 F.3d 162, 165 (3d Cir.2009).
III.
To succeed on a claim of retaliation for exercising First Amendment rights, a plaintiff must establish that she engaged in protected activity and that the activity was a substantial or motivating factor in any retaliatory action taken against her. Ambrose v. Twp. of Robinson, 303 F.3d 488, 493 (3d Cir.2002). “It is only intuitive that for protected conduct to be a substantial or motivating factor in a decision, the decisionmakers must be aware of the protected conduct.” Id. (citation omitted).
The parties do not dispute that Palfrey’s testimony and conversations with the Ethics Commission constitute activity protected by the First Amendment. However, Palfrey’s accusations that the Board members knew about this activity is a product of her own speculation. She testified that she believed her subordinate informed a Board member of her protected activity and then surmised that the rest of the Board was then so informed. Every Defendant Board member, however, denied having knowledge of her protected activity prior to their decision not to renew her contract. Palfrey only surmises that the Defendant Board members knew of her protected activity and does not rebut these denials. Accordingly, she has failed to offer any evidence on this question.1
Palfrey asserts other arguments in an effort to establish a genuine issue of material fact as to whether the Defendants had knowledge of her protected activity. First, they had knowledge of her breaking into Rembold’s office and stealing a document to send to the Ethics Commission. Second, Rembold had knowledge of all her activity, including testifying, and thus the Board had imputed knowledge under the so-called “cat’s paw” theory. Finally, circumstantial evidence, namely temporal proximity, shows knowledge.
First, there is no doubt that Rem-bold was aware—or at least believed—that someone broke into his office and stole a document. We view the record in the same manner as the District Court and hold that the undisputed facts establish that the Board members knew about this and learned that it was Palfrey. However, we are not convinced that breaking into a school superintendent’s locked office to steal a document and send it to the Ethics Commission is activity protected by the First Amendment. As we stated in Ambrose, quoting the District Court’s jury *594instruction with approval, “unauthorized entry into closed administrative officers [sic] for the purpose of copying records is not activity protected by the First Amendment.” Ambrose, 303 F.3d at 496.
Palfrey next argues that the Court should impute Rembold’s knowledge of her protected activity to the Board. The cat’s paw theory is a method by which a plaintiff can establish liability against a decisionmaker if the decisionmaker, while not himself harboring any discriminatory animus toward the plaintiff, nevertheless is under the control or influence of one who does. See Delli Santi v. CNA Ins. Cos., 88 F.3d 192, 200 & n. 11 (3d Cir.1996). Palfrey cannot succeed on this argument, though, because as discussed by the District Court, she cannot demonstrate that Rembold had knowledge of her protected activity such that it can be imputed to the Board.
Finally, circumstantial evidence of a temporal proximity between protected activity and an adverse employment action is not enough to establish knowledge or even a genuine question of knowledge of the protected activity. To be sure, the Defendant Board members’ denials of their own knowledge alone is not fatal to her case. Ambrose, 303 F.3d at 493. However, Palfrey must come forward with evidence, other than circumstantial evidence consisting of temporal proximity, that the Defendants knew of her testimony and conversations prior to the vote not to renew her contract. Id. at 494. She has not done this.2
We conclude that Palfrey has failed to point to a genuine issue of material fact as to whether Defendants knew she engaged in protected activity. The District Court’s conclusion to this effect was correct, and we will affirm.
. Palfrey testified that one of her subordinates had told her that he and another subordinate had advised Board member Burich of her testimony before the Ethics Commission. Palfrey also testified that Board member Pochron had told her that Rembold had told the entire Board at its May meeting that Palfrey had been subpoenaed and "was working with the Ethics Commission to discredit him.” While it is true that hearsay evidence in a deposition submitted in opposition to a motion for summary judgment may be considered if the out-of-court declarant could later present that evidence through direct testimony, i.e., in a form that would be admissible at trial, J.F. Feeser, Inc. v. Serv-A-Portion, Inc., 909 F.2d 1524, 1542 (3d Cir.1990); Williams v. Borough of West Chester, 891 F.2d 458, 466 n. 12 (3d Cir.1989), that proposition does not aid Palfrey here. With respect to Burich, even if the subordinate testified at trial and corroborated Palfrey's deposition testimony, there is no evidence, hearsay or otherwise, that Burich passed the information on to any other Board member. With respect to Pochron, the record affirmatively establishes that he is not in a position to corroborate Palfrey's deposition testimony. He testified at his deposition concerning the May meeting that Rembold spoke only of the breaking and entering of his office.
. We note the following. First, the letter to Palfrey dated June 2, 2005, did not state JMSD’s intent to renew her contract. It only informed her, in a form letter, that her contract was being amended. Second, we do not consider relevant the fact that Defendants do not each set forth the same reason for their individual votes not to renew her contract. Our cases, cited by Palfrey, concluding that inconsistencies in an employer’s articulated reasons are evidence that the reasons were not credible do not shed light on whether the Defendants knew of Palfrey’s protected conduct. Tomasso v. Boeing Co., 445 F.3d 702, 707-10 (3d Cir.2006) (concluding, after the plaintiff established a prima facie case, that various articulated reasons were pretext); Shellenberger v. Summit Bancorp, Inc., 318 F.3d 183, 190 (3d Cir.2003) (same); Brewer v. Quaker State Oil Refining Corp., 72 F.3d 326, 331-34 (3d Cir.1995) (same).
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*604OPINION
PER CURIAM.
Pro se appellant Assem Abulkhair challenges the District Court’s denial of his motion to reinstate an appeal. For the reasons below, we will vacate the District Court’s order and remand for further proceedings consistent with this opinion.
I.
In 2002, Abulkhair filed an action in the United States District Court for the District of New Jersey for review of the Social Security Administration’s (“SSA”) Appeals Council’s decision that he was ineligible for disability benefits. (D.NJ.CivA.. No. 02-1220.) On March 21, 2003, Abulkhair and the Commissioner executed a consent order for remand of the case under the fourth sentence of 42 U.S.C. § 405(g). Two days later, the District Court entered a judgment that remanded the matter to the SSA and dismissed the case. On remand, an administrative law judge (“ALJ”) held a supplemental hearing, and in 2004 the ALJ issued a new decision finding that Abulkhair was ineligible for benefits. Abulkhair sought review of that decision by the Appeals Council.1 On May 25, 2007, the Appeals Council issued a final decision adopting the ALJ’s 2004 decision.
Abulkhair then filed a new cause of action in the District Court seeking review of the May 25, 2007 Appeals Council’s decision. (D.N.J.Civ.A. No. 07-3276.) However, on July 26, 2007, the District Court terminated the action because it was substantially related to Abulkhair’s 2002 action. The July 26th order directed Abulkhair to seek reinstatement of his original appeal under Civil Action Number 02-1220.
Abulkhair did not appeal from the July 26th order, but on July 27, 2007, followed the District Court’s directive by filing a pro se motion to reinstate his appeal under Civil Action Numbei 02-1220. Abulkhair retained counsel; however, his attorney withdrew on November 15, 2007. On November 30, 2007, the District Court held a hearing regarding Abulkhair’s motion; Abulkhair did not attend the hearing, claiming that his attorney never told him about it. And on December 11, 2007, the District Court denied Abulkhair’s request to reinstate his appeal. The order stated, in part, that the District Court “had previously denied such a reopening and that such denial was proper and that no basis exists for either a reopening or a reconsideration of the prior decision.” The District Court further stated that it would not consider any additional submissions regarding the case.
Abulkhair now appeals from the December 11, 2007 order.
II.
We have jurisdiction to review the District Court’s December 11th order under 28 U.S.C. § 1291.
The District Court’s 2003 remand and dismissal of Abulkhair’s appeal from the Appeals Council’s 2002 decision was made pursuant to sentence four of 42 U.S.C. § 405(g). The remand thus “terminated the litigation with victory for [Abulkhair],” and the District Court relinquished jurisdiction. See Johnson v. Gonzales, 416 F.3d 205, 209 (3d Cir.2005) (citing Shalala v. Schaefer, 509 U.S. 292, 300-02, 113 S.Ct. 2625, 125 L.Ed.2d 239 (1993)).
*605On remand, the ALJ held a new hearing and issued a new decision, which the Appeals Council adopted on May 25, 2007. Under 42 U.S.C. § 405(g) and regulations, Abulkhair thus had sixty days after receiving notice of the decision to seek judicial review of the Appeals Council’s decision. See Flores v. Sullivan, 945 F.2d 109, 111 (5th Cir.1991); 20 C.F.R. § 422.210(c). Abulkhair filed a new civil action pursuant to Section 405(g) in the District Court on July 13, 2007, but the District Court terminated the case and ordered Abulkhair to file a motion to reinstate his 2002 appeal.2
Abulkhair followed the directive to file a motion to reinstate his appeal under Civil Action Number 02-1220. However, despite its caption, the substance of Abulkhair’s motion demonstrates that he was seeking review of the Appeals Council’s 2007 decision—i.e., he was not attempting to get a “second bite at the apple.” See Turner v. Evers, 726 F.2d 112, 113 (3d Cir.1984) (finding that the substance of the motion governs); see also Dluhos v. Strasberg, 321 F.3d 365, 369 (3d Cir.2003) (stating the general rule that courts are to liberally construe pro se litigants’ pleadings). We thus conclude that the District Court should have construed Abulkhair’s motion as seeking review of the 2007 decision rather than as a motion to reopen. Accordingly, we will vacate the District Court’s December 11, 2007 denial of Abulkhair’s motion.
Further, we note that Abulkhair’s July 27th filing was a timely appeal from the Appeals Council’s May 25th decision. The limitation period for seeking judicial review from the decision commenced when Abulkhair received notice of the Appeals Council’s decision, see Flores, 945 F.2d at 111; 20 C.F.R. § 422.210(c). The regulations establish a rebuttable conclusion that “the date of receipt of the notice of ... the decision of the Appeals Council shall be presumed to be five days after the date of such notice, unless there is a reasonable showing to the contrary.” 20 C.F.R. § 422.210(c). Because Abulkhair is thus presumed to have received notice of the Appeals Council’s decision on May 30th, his July 27th filing is timely under Section 405(g).3
For the foregoing reasons, we will vacate the District Court’s December 11, 2007 order and remand with instructions for the District Court to construe Abulkhair’s July 27th submission as a new civil action filed under 42 U.S.C. § 405(g).
. While the ALJ's 2004 decision was pending before the Appeals Council, Abulkhair filed a motion to reopen the original cause of action, which the District Court denied on April 11, 2005.
. The July 26th order is not before us and we make no decision as to whether it was proper.
. Even if Abulkhair’s July 27th filing was untimely under 42 U.S.C. § 405(g), we note that the time limitation is not jurisdictional and is subject to equitable tolling. See Fletcher v. Apfel, 210 F.3d 510, 513 (5th Cir.2000); Bowen v. City of New York, 476 U.S. 467, 480, 106 S.Ct. 2022, 90 L.Ed.2d 462 (1986).
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OPINION
PER CURIAM.
Gayane Grigoryan, citizen of Armenia, petitions for review of an order of the Board of Immigration Appeals (“BIA”). For the following reasons, we will grant the petition for review and remand for further proceedings consistent with this opinion.
I.
Grigoryan entered the United States in June 2001, and was later authorized to remain until May 2002. In February 2006, she applied for asylum, withholding of removal, and relief under the United Nations Convention Against Torture (“CAT”), claiming that she suffered past persecution, and feared persecution in the future, on account of her practice of Christianity as a Baptist. The next month, she was placed in removal proceedings for having overstayed her admission period. See Immigration and Nationality Act (“INA”) § 237(a)(1)(B) [8 U.S.C. § 1227(a)(1)(B) ]. She admitted the allegations in the Notice to Appear and conceded the charge of removability.
The Immigration Judge (“IJ”) denied Grigoryan’s application for asylum, noting that it was filed more than one year after her arrival in the United States. See IJ Oral Decision, 20-23. The IJ did not believe that there were extraordinary circumstances warranting waiver of the one-year deadline. See id. The IJ also denied Grigoryan’s application for withholding of removal, concluding that Grigoryan was not credible, and, alternatively, that she had not carried her burden of proof be*607cause she failed to provide adequate corroborative documentary evidence. See id. at 23-31. In particular, the IJ cited Grigoryan’s conflation of the practices of Jehovah’s Witnesses with those of Baptists, inconsistencies between her testimony and her asylum application, and her failure to provide evidence corroborating her affiliation with the Baptist church. See id. Finally, the IJ concluded that Grigoryan failed to establish that she was likely to be tortured in Armenia. See id. at 31.
The BIA dismissed Grigoryan’s appeal, agreeing that the asylum application was time-barred. The Board further concluded that Grigoryan failed to demonstrate her eligibility for other relief, noting that the IJ “identified specific, cogent reasons in support of the adverse credibility finding, for which the respondent has provided no reasonable explanation.” Grigoryan filed a petition for review of the BIA’s decision.
II.
We have jurisdiction under INA § 242(a)(1) [8 U.S.C. § 1252(a)(1) j.1 Because the BIA substantially relied on the IJ’s determinations, we consider both the IJ’s and the BIA’s opinions. See Kaita v. Att’y Gen., 522 F.3d 288, 296 (3d Cir.2008). We review the adverse credibility determination for substantial evidence. See Butt v. Gonzales, 429 F.3d 430, 433 (3d Cir.2005). Under this standard, the adverse credibility determinations will be upheld if they are “supported by reasonable, substantial and probative evidence on the record considered as a whole.” Tarrawally v. Ashcroft, 338 F.3d 180, 184 (3d Cir.2003) (internal quotation marks omitted). They may be overturned only if “any reasonable adjudicator would be compelled to conclude to the contrary.” INA § 242(b)(4)(B) [8 U.S.C. § 1252(b)(4)(B)], Adverse credibility determinations must be “supported by specific cogent reasons.”2 Gao v. Ashcroft, 299 F.3d 266, 276 (3d Cir.2002). Furthermore, we must uphold a determination regarding the availability of corroborating evidence unless “a reasonable trier of fact is compelled to conclude that such corroborating evidence is unavailable.” INA § 242(b)(4); see also Sandie v. Att’y Gen., 562 F.3d 246, 252 (3d Cir.2009).
III.
The IJ first concluded that Grigoryan “confused the Baptist religion with the Jehovah Witness religion.” IJ Oral Decision, 23. As examples, the IJ cited Grigoryan’s refusal to take an oath, her explanation that she “witnesses to other people,” and her reference to congregation members as “brothers and sisters.” Id. Importantly, though, the IJ failed to acknowledge Grigoryan’s answer when asked, “What do you know about the Baptist religion? Can *608you name one key principal, one key requirement of a Baptist?” Administrative Record (“A.R.”), 228. Grigoryan replied, “[t]he basis of the religion comes from John the Baptist who was the saint that baptized Jesus Christ. We believe that ... by being baptized a person can come clean of [sins]—and ... can become a real Christian, and they can become one with God.” Id. She also described the process of being baptized, in both Armenia and at the church she attended in Philadelphia, id. at 229-30, and explained that “witnessing” is “not an obligation” but is “how I feel about my religion, and I need to share it.” Id. at 245. In any event, “[b]oth history and common sense make amply clear that people can identify with a certain religion, notwithstanding their lack of detailed knowledge about that religion’s doctrinal tenets.” Rizal v. Gonzales, 442 F.3d 84, 89 (2d Cir.2006). Under these circumstances, we believe that any negative inference drawn by the IJ based on Grigoryan’s alleged “confus[ion]” about the tenets of her religion was not supported by the record.3
The Id’s adverse credibility determination also relied on an alleged “significant inconsistency” concerning Grigoryan’s proficiency in the Russian language. See IJ Oral Decision, 26-27. In a space on the asylum application form to indicate “[w]hat other languages do you speak fluently,” Grigoryan wrote “Russian.” A.R. 380. In the written statement submitted in support of her application, Grigoryan stated that she moved to a different neighborhood “because there is a big Russian population in that area, which made my living easier because I didn’t know English very well.” A.R. 395. According to the IJ, these statements were “in total contradiction to” Grigoryan’s testimony that “she only attended [a Russian Baptist] church occasionally because of her difficulty with the Russian language” and “faulty language skills.” IJ Oral Decision, 26-27. We believe that this conclusion is based on too literal a reading of the averment in Grigoryan’s asylum application, which “asked only if [she] was fluent, with no attempt to inquire into various degrees of proficiency one may have with a foreign language.” Senathirajah v. INS, 157 F.3d *609210, 218 (3d Cir.1998). In fact, Grigoryan explained, “I do understand Russian, but I don’t speak so fluently.” A.R. 233. Because she understood Russian, but not English, her decision to move to a neighborhood in the United States with a large Russian population was not implausible. Therefore, we conclude that substantial evidence does not support the IJ’s finding that Grigoryan provided inconsistent accounts of her proficiency with Russian.
Although Grigoryan produced medical records documenting various injuries allegedly caused by her persecutors, the IJ noted that “there is absolutely no evidence in the record that the injuries described in those reports have any connection to the beatings she experienced as a Baptist.” IJ Oral Decision, 25. Grigoryan testified that she was assaulted on the street in March 2000, when three people jumped on her, pushed her against a tree, held her by the throat, hit her in the head, and cursed her, stating that Baptists were traitors against Christianity and had no place in Armenia.4 A.R. 222. When she returned home, Grigoryan’s mother called an ambulance. Id. The record contains two statements from the Director of the “Emergency Aid” and “FastMediealHelp” services, indicating that Grigoryan was diagnosed on March 17, 2000, with “hematoma under eyes, waist and thighs because of hitting.” Id. at 261, 426. Grigoryan further claimed that “[ajfter two days our doctor came and saw me at home.” Id. at 223. This allegation is corroborated by a statement from Grigoryan’s doctor:
I ... saw patient Gayane Grigoryan, who had black spots under her eyes, on different parts of her body and a l[u]mp on her head. The patient was scared and weak. She was given antibiotic, pain reliever, and calming medications. After the time of getting those injuries the patient asked for medical help from Fast Help Services. (They) asked for my help on March 19, 2000.
Id. at 423. In addition, a statement from a doctor in the United States supports Grigoryan’s testimony that she saw a doctor “just after I arrived” because of left hip pain. Id. at 225-27, 299-300. Because the date and nature of Grigoryan’s injuries, which she claimed were caused by individuals who targeted her on account of her religion, match so closely with the medical reports, we conclude that substantial evidence does not support the IJ’s conclusion that Grigoryan failed to establish a nexus between her injuries and a protected ground. Cf. Butt, 429 F.3d at 438 n. 11 (acknowledging that support for asylum claim may exist where, inter alia, “the general nature of [the petitioner’s severe injuries] were corroborated by [a] doctor’s note.”).
Although the findings described above are not supported by the record, the IJ did properly identify an inconsistency involving the identity of one of the individuals who attacked Grigoryan in September 2000. In her asylum statement, and again in her brief to the BIA, Grigoryan stated that a person named Ashot, whom she recognized from her cousin’s gym class, punched her in the face. See A.R. 46, 394. She testified, however, that “[t]he guy that I knew, Ashot, wasn’t the one that was hitting me. The other one hit me.” Id. at 224. These statements are clearly inconsistent, and Grigoryan has not offered any explanation for the discrepancy.
*610IV.
We may affirm an adverse credibility determination even where, as here, a portion of the IJ’s analysis is flawed. See Tarrawally, 338 F.3d at 187 (affirming adverse credibility finding as supported by substantial evidence even though “[s]ome of the IJ’s reasons for his adverse credibility determination were based on presumptions not grounded in the record”); see also Cao He Lin v. U.S. Dep’t of Justice, 428 F.3d 391, 401 (2d Cir.2005) (“[W]e are not required to remand where there is no realistic possibility that, absent the errors, the IJ or BIA would have reached a different conclusion.”). But a remand is warranted when we cannot state with confidence that the IJ would reach the same decision in the absence of the erroneous findings. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 338-39 (2d Cir.2006) (“If the reviewing court undertakes to determine whether remand would be futile, it should assess the entire record and determine whether, based on the strength of the evidence supporting the error-free findings and the significance of those findings, it is clear that the agency would adhere to its decision were the petition remanded.”). In this case, the only error-free finding involves the discrepancy concerning the name of the individual who hit Grigoryan during the September 2000 assault; the remainder of the IJ’s credibility and corroboration determinations are flawed. Under these circumstances, we cannot confidently predict that the IJ would reach the same result on remand.
V.
For the foregoing reasons, we will grant Grigoryan’s petition for review and remand to the Board to determine, without regard to the erroneous adverse credibility and corroborating evidence findings described above, whether Grigoryan is entitled to relief.5 We express no opinion as to the ultimate outcome.
. Although Grigoryan devotes a significant portion of her brief to arguing that her untimely asylum application should have been excused because of extraordinary circumstances, we lack jurisdiction over this issue. See INA § 208(a)(3) [8 U.S.C. § 1158(a)(3)]; Sukwanputra v. Gonzales, 434 F.3d 627, 632-33 (3d Cir.2006). But, as the Government concedes, Grigoryan’s failure to challenge the adverse credibility determination on appeal to the BIA was exhausted because the BIA addressed the issue sua sponte. See Lin v. Att'y Gen., 543 F.3d 114, 123-24 (3d Cir.2008).
. Because Grigoryan’s asylum application was filed after the effective date of the REAL ID Act (May 11, 2005), the IJ was allowed to make a credibility determination "without regard to whether an inconsistency, inaccuracy, or falsehood goes to the heart of the applicant's claim----” INA § 208(b)(1 )(B)(iii) [8 U.S.C. § 1158(b)(l)(B)(iii) ]. We conclude that the erroneous adverse credibility determinations described below cannot survive even under the new standard.
. The IJ also faulted Grigoryan for failing to provide "any evidence that she is a member of, or affiliated with, the Baptist Church,” such as a baptismal certificate, a letter from the minister who performed her baptism in Armenia, or statements from other church members in Armenia or Philadelphia. IJ Oral Decision, 23-26. In denying relief based on a lack of corroboration, the IJ must conduct the following three-part inquiry: (1) an identification of facts for which it is reasonable to expect corroboration; (2) an inquiry as to whether the applicant has provided information corroborating the relevant facts; and, if he has not, (3) an analysis of whether the applicant has adequately explained his failure to do so. See Toure v. Att’y Gen., 443 F.3d 310, 323 (3d Cir.2006). Grigoryan explained that baptismal certificates are not issued in Armenia, that she "didn't know that I need papers to prove that I am part of a religion," and that it was difficult to obtain evidence from the Russian Baptist Church in Philadelphia because she does not speak Russian fluently and had difficulty finding transportation to the church. A.R. 228-29, 231, 233. Even if these explanations are inadequate, however, the IJ failed to address other evidence corroborating Grigoryan's Baptist faith. For instance, statements submitted by two family friends, her parents, and her sister, all indicate that Grigoryan is a Baptist. Id. at 267, 269, 275, 279. We recognize that the IJ does not have "to write an exegesis on every contention” raised by the movant, see Sevoian v. Ashcroft, 290 F.3d 166, 178 (3d Cir.2002), but remand may be required when the record suggests that the IJ failed to take into account significant evidence. See Zheng v. Att’y Gen., 549 F.3d 260, 269 (3d Cir.2008); see also Cham v. Att’y Gen., 445 F.3d 683, 693 (3d Cir.2006) (recognizing that an IJ must "actually consider” the evidence presented by a party).
. The IJ also questioned "how a stranger would know that this woman walking down the street was a Baptist.” IJ Oral Decision, 24. But, contrary to the IJ's finding that Grigoryan "did not say that she went out to discuss God with people,” id. at 25, she testified that "I did talk to my classmates and people that I knew in school about [baptism].” A.R. 238.
. On remand, the Board should separately consider whether Grigoryan established a prima facie claim for relief under the CAT. See Zubeda v. Ashcroft, 333 F.3d 463, 467, 476 (3d Cir.2003).
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OPINION OF THE COURT
STAPLETON, Circuit Judge:
Larnell Jones, Jr., appeals his seventy-two month sentence of imprisonment for two counts of possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1), and his consecutive twelve month sentence of imprisonment for violation of supervised release. For the reasons that follow, we will affirm.
Because we write only for the parties who are familiar with the factual context and procedural history of this case, we set forth only those facts necessary to our analysis.
*612I.
On August 12, 2004, Jones pled guilty to an indictment charging him with one count of possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). Jones was sentenced to forty-six months’ imprisonment and three years’ supervised release. Jones was released from prison and began serving his term of supervised release on December 11, 2006. On December 12, 2006, Jones was arrested by the City of Pittsburgh Police Department and later charged in state court with offenses including illegal possession of a firearm, carrying a firearm without a license, receiving stolen property, and driving under the influence. On July 14, 2007, Jones was again arrested and later charged in state court with offenses including driving under the influence, illegal possession of a firearm, and carrying a firearm without a license. Although a condition of his supervision required that he inform his probation officer of an arrest, Jones did not notify his probation officer of either arrest.
On September 26, 2007, a federal grand jury issued an indictment charging Jones with two counts of possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1), based on the events of December 12, 2006, and July 14, 2007. Jones’s probation officer filed a Supplemental Petition on Supervision noting Jones’s indictment and alleging that he had violated the condition of his supervision requiring that Jones not commit another federal, state, or local crime.
Jones entered a plea of guilty to both counts of the indictment, which also constituted an admission of the supervised release violations. The District Court held a combined sentencing hearing with regard to Jones’s criminal offenses and his supervised release violations. The Court noted at the outset that the presentence report (“PSR”) had calculated Jones’s advisory guideline range to be sixty-three to seventy-eight months based upon a total offense level of nineteen and a criminal history category of VI.
Jones objected to the computation of his criminal history score, arguing that he could not be assessed one criminal history point for a 1998 state conviction for carrying a loaded weapon listed in ¶ 53 of the PSR because it was not based on information that was sufficiently reliable. He noted that the PSR stated that the “facts of the case are unknown.” Elimination of this criminal history point would lower his total criminal history score from thirteen to twelve and his criminal history category from VI to V, thus reducing the guideline sentence range to fifty-seven to seventy-one months. Jones also argued for a variance below the guideline range and for a concurrent term of imprisonment for the supervised release violations.
The District Court found as a fact that Jones had been convicted of the offense reported in ¶ 53 of the PSR. It did so based on a docket sheet certified by the court of conviction which evidenced that Jones had pled guilty to the offense of carrying a loaded weapon in 1998. In considering the § 3553(a) factors, the District Court noted Jones’s significant criminal past, the seriousness of the offense, and the fact that the bottom of the guideline range sentence it previously imposed on Jones for his original felon in possession charge had not sufficiently impressed upon him the seriousness of his conduct. The District Court sentenced Jones to seventy-two months’ imprisonment for the felon in possession charges, a consecutive twelve-month term of imprisonment for the supervised release violations, and three years of supervised release with listed conditions. It is this sentence from which Jones appeals.
*613II.
The sentencing guidelines provide that “[i]n determining the relevant facts, sentencing judges are not restricted to information that would be admissible at trial” but may consider any information “so long as it has sufficient indicia of reliability to support its probable accuracy.” U.S.S.G. § 6A1.3, cmt. (citing United States v. Watts, 519 U.S. 148, 157, 117 S.Ct. 633, 136 L.Ed.2d 554 (1997)). In United States v. Berry, 553 F.3d 273, 284 (3d Cir.2009), relying on the Supreme Court’s holding in Watts that facts considered at sentencing must be proved by a preponderance of the evidence, we determined that an arrest record, without more, did not suffice to carry the government’s burden of proving that a defendant had been convicted of an earlier crime.
Here, however, Jones’s conviction of the offense in question was evidenced by a record of the convicting court, the authenticity of which had been certified by that court, and Jones proffered no reason to question the accuracy of that document. See United States v. McKenzie, 539 F.3d 15, 19 (1st Cir.2008) (holding that attested copies of electronic docket entries may be sufficient proffer of prior conviction for sentencing proceedings, noting that electronic docket records are increasingly the “norm,” and the defendant did not show records were inaccurate and conceded they were properly authenticated). The docket information was also consistent with the automated National Crime Information Center Database printouts for the resolution of the case. See United States v. Townley, 472 F.3d 1267, 1277 (10th Cir.2007) (government met burden to show prior conviction by preponderance of evidence where presented evidence derived from National Crime Information Center database and confirmed by probation office). The certified docket sheet clearly had “sufficient indicia of reliability to support its probable accuracy.” U.S.S.G. § 6A1.3, cmt. Therefore, we conclude that the District Court did not abuse its discretion when it determined that the government had demonstrated the existence of the prior conviction listed at ¶ 53 by a preponderance of the evidence.
Jones’s argument to the contrary is based on the Supreme Court’s decisions in Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), and Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005). In Taylor and Shepard, the Supreme Court addressed the range of information upon which a sentencing judge may rely in determining whether a defendant’s prior conviction satisfies the definition of “violent felonies” set forth in the Armed Career Criminal Act, 18 U.S.C. § 924(e). In Shepard, the Court explained that, in making this determination, a court could consider only the terms of the charging document, a plea agreement or transcript of colloquy in which the factual basis for the plea was confirmed by the defendant, or “some comparable judicial record of this information.” 544 U.S. at 26, 125 S.Ct. 1254; see Taylor, 495 U.S. at 601-02, 110 S.Ct. 2143 (determining that § 924(e) requires that the trial court look only to the fact of conviction and the statutory definition of the prior offense, not the particular facts underlying the conviction).
The Court in Taylor and Shepard was addressing issues distinct from that before the District Court in this case. The sentencing judges in those cases were required to determine whether the convictions before them were “violent” within the meaning of the Armed Career Criminal Act. Here, the only fact relevant under the guidelines was whether Jones was convicted of the alleged offense in 1998.
*614Decisions from our sister Courts of Appeals support the conclusion that the holdings in Shepard and Taylor do not limit the type of documents a sentencing court may consider for purposes of determining the fact of a prior conviction in order to compute a defendant’s criminal history score. These decisions have consistently rejected applying the holding of Shepard in such instances and continue to consider whether the documents submitted have sufficient indicia of reliability to support their probable accuracy. See United States v. Felix, 561 F.3d 1036, 1045 (9th Cir.2009) (determining that defendant’s reliance on Shepard was without merit because the issue was only whether the documents supported the fact of the conviction, not its type or character); United States v. Neri-Hernandes, 504 F.3d 587, 591 (5th Cir.2007) (Shepard does not apply when determining whether the government has satisfied its burden of proof as to the existence of a prior conviction; a court must consider whether the submitted documents have sufficient indicia of reliability to be used as evidence of prior conviction); United States v. Zuniga-Chavez, 464 F.3d 1199, 1204 (10th Cir.2006) (Shepard did not address what documents could be used to prove the fact of a prior conviction; rather, Shepard was only concerned with what documents could be used to prove the facts underlying the conviction where the elements of the state crime did not mirror the federal definition; therefore Shepard was not controlling).
III.
We are unpersuaded by Jones’s argument that the District Court did not consider all of the § 3553(a) factors and his arguments regarding those factors. We are also unpersuaded that the sentence was substantively unreasonable. The record as a whole shows that the District Court conducted a detailed and thorough analysis of the relevant § 3553(a) factors and of Jones’s arguments for a variance with respect to these factors.
In addressing the factors set forth in § 3553(a), the District Court began with the nature and circumstances of the offense, noting that the offense was not violent in nature but that it was part of a pattern of criminal activity. In considering the history and characteristics of the defendant, the Court noted that Jones was thirty-two years old at the time of the offense and his conduct could not be attributed to youthful indiscretion, that he had a significant history of criminal conduct as an adult, and that he consistently violated the terms of his probation and supervision. The Court noted Jones’s arguments about witnessing his mother commit a homicide, about his physical and mental health problems, about his admitted alcohol and substance abuse, and about his having received his GED and obtained employment “in some instances.” The Court then considered the need to impose a sentence that reflected the seriousness of the offense and promoted respect for the law, noting that it is a serious offense for a convicted felon to possess a firearm. The Court also noted the significant need for deterrence because of Jones’s extensive criminal history and the need to protect the public.
Immediately after imposing the sentence, the Court provided the following explanation of the principal reasons for its imposition:
Defendant stands before us for the second time for possession of a firearm by a felon. Convicted felons are prohibited from possessing firearms for good reason, and the possession of them warrants a significant penalty.
At his first sentencing, I noted his difficult childhood and imposed a sentence at the bottom end of the estimated *615guideline range. His conduct in this case, however, shows that that was not apparently the appropriate sentence. In order to impress upon the defendant the seriousness of his conduct, I will impose a substantial period of incarceration along with the maximum period of supervised release to include a substance abuse treatment program.
App. at 108.
The record reflects that the District Court gave meaningful consideration to all the relevant § 3553(a) factors. That it did this before giving Jones an additional opportunity to address the Court does not make the Court’s discussion a “meaningless rote recitation” of the factors. Additionally, the fact that the Court reiterated certain factors after imposing the actual sentence does not detract from the previous analysis in which the Court thoroughly considered all the relevant factors. Moreover, as the above-quoted passage suggests, a review of the record contradicts Jones’s argument that the District Court failed to rule on his request for a variance based on his personal history.
A review of the record does not reveal any procedural error. Nor can we say that the sentence is substantively unreasonable given the Court’s reasoned and
thorough explanation for imposing a sentence within the advisory guideline range.1
For these reasons, the judgment of the District Court will be affirmed.
. Jones relied upon the same § 3553(a) variance arguments when he requested that the violation of supervised release sentence run concurrent with the sentence on the indictment. In denying a concurrent sentence, the District Court incorporated its § 3553(a) analysis from the denial of the variance. App. at 110. The Court noted that it was within its discretion to make the sentence run consecutively, "[o]therwise the violation of the supervised release is meaningless.” App. at 113. In addition to all the factors previously discussed, the Court noted that Jones would be forty years old when he was released from incarceration and would still have a full life ahead of him. We note that the twelve month consecutive sentence was below the advisory guideline range of eighteen to twenty-four months. "A district court’s primary consideration in handing down a revocation sentence is the defendant's breach of trust.” United States v. Dees, 467 F.3d 847, 853 (3d Cir.2006) (finding maximum statutory sentence was reasonable where defendant had multiple and flagrant breaches of trust that began almost immediately upon his release from prison, and rehabilitation had not been achieved during the first term of imprisonment). Because the District Court gave meaningful consideration to the § 3553(a) factors, and given Jones’s repeated breaches of trust that began immediately upon his release from incarceration, the District Court did not commit procedural error in imposing a consecutive sentence, nor was that sentence substantively unreasonable.
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OPINION
PER CURIAM.
Among other complaints Sandra Gadsden filed in the District Court, she filed two complaints against her former employer, The Jersey City Public Schools. Both cases were assigned to Judge Linares, one docketed as Sandra I.[sic] Gadsden v. Jersey City Public Schools, The (D.N.J.Civ. No. 08-03248), and one docketed as Sandra L. Gadsden v. The Jersey City Public Schools (D.N.J.Civ. No. 08-03249). The allegations in the complaints themselves are identical (a host of federal and state constitutional and statutory violations relating to her former employer’s decision to terminate her employment), but the attachments to the complaints differ slightly. On July 2, 2008, the District Court dismissed both cases.
On July 17, 2008, Gadsden filed a document captioned “Caption § 56.3(2) Disqualification of Judges” in both cases. In it, she seemed to state that the grounds on which Judge Linares closed another of her cases were unfair and she seemed to call for his recusal (although she may have been discussing a different District Court judge). In early September, Gadsden filed a letter noting that she had not received any information concerning the removal of the judges presiding over her cases. Apparently in relation to D.N.J. Civ. No. 08-03248, she stated “1st Discrimination Civil Action No. 08-3248 was opened against the New Jersey Education Association, which gave me the right to open the case under Discrimination with the right to sue. I submitted the right to sue letter from EEOC dated June 19, 2007. Judge Jose L. Linares did not review the cases he went against the law....” Letter filed Sept. 2, 2008,1.
*617On October 17, 2008, Gadsden filed a notice of appeal in C.A. No. 08-3248, which she captioned “Sandra L. Gadsden v. New Jersey Education Association.” She stated that she sought review of the order “entered on July 17, 2008 and amended on July 30, 2008 for Removal of Judge for Caption § 56.3(2) Bias Recusal, and § 51.2 New Trial.” She wrote about Judge Linares closing her charges of discrimination against the “above entity due to separate charges against the New Jersey Education Association (Union).” Among other things, Gadsden argued that she was entitled to file a discrimination suit based on a violation of her constitutional and civil rights. She also discussed her case before another District Court judge, listing how the New Jersey Education Association purportedly wronged her.
On October 17, 2008, Gadsden also filed her first notice of appeal in D.N.J. Civ. No. 08-03249. She stated that she appealed the judgment “entered on July 17, 2008 and amended on July 30, 2008 for Removal of Judge for Caption § 56.3(2) Bias Recusal, and § 51.2 New Trial.” In the three page document, she complained of another District Court judge’s actions and repeated a summaiy of her claims against her former employer and union.
While the two appeals were pending, proceedings continued in the District Court. On February 10, 2009, Judge Linares entered an order in D.N.J. Civ. No. 08-03248 and D.N.J. Civ. No. 08-03249 to deny Gadsden’s request for him to recuse. The District Court also stated that it would take no action on a request to reopen a case on appeal to the extent that Gadsden was requesting reopening. The District Court also directed Gadsden to file any new requests for reopening with a different District Court judge.
Gadsden then filed a second notice of appeal in each District Court case. Actually, she captioned it “Sandra L. Gadsden v. The Jersey City Public Schools, Feintuch, Porwich & Feintuch, and New Jersey Education Association,” and cross-filed in all of the cases before Judge Linares and another District Court judge. She complained of “Errors [that] deprived [her] of due process,” namely that the Clerk’s Office continued “to type Jersey City Education Association as [her] Job.” She noted that the Education Association was her union. She summarized her claims against the Jersey City Education Association and the Jersey City Public Schools. Gadsden also alluded to alleged errors by the Clerk that caused her cases to be closed and resulted in a date-stamp of October instead of July on her notice of appeal. She repeated her claims of bias on the part of the District Court judges, too.
Our first question is whether we have jurisdiction over her first set of appeals (the appeals from the dismissal of her complaints). Upon review, we conclude that the answer is no. The time limit of Rule 4(a)(1) of the Federal Rules of Appellate Procedure for commencing an appeal is mandatory and jurisdictional. See Bowles v. Russell, 551 U.S. 205, 208-14, 127 S.Ct. 2360, 168 L.Ed.2d 96 (2007); Browder v. Director, Dep’t of Corrections, 434 U.S. 257, 264, 98 S.Ct. 556, 54 L.Ed.2d 521 (1978). A notice of appeal in a civil case in which the United States is not a party is timely if it is filed within 30 days of the entry of the order or judgment being appealed. See Fed R.App. P. 4(a)(1). The District Court issued its order dismissing Gadsden’s complaints on July 2, 2008. Gadsden filed her first notices of appeal on October 17, 2008, more than 30 days later. Accordingly, we do not *618have jurisdiction over her untimely appeals from the dismissals of her District Court cases.1
We turn now to Gadsden’s second set of appeals in this consolidated case. We preliminarily address a jurisdictional issue. To wit, the District Court ruled on the apparent recusal motion while Gadsden’s first appeals were pending. Generally, “the filing of a notice of appeal divests the district court of jurisdiction over the case pending disposition of the appeal.” See Venen v. Sweet, 758 F.2d 117, 120 (3d Cir.1985) (citing Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58, 103 S.Ct. 400, 74 L.Ed.2d 225 (1982) (per curiam)). However, the District Court did not lose jurisdiction in this case because Gadsden appealed from an order that could no longer be appealed. See Venen, 758 F.2d at 120.
Upon review, we will affirm in each case the order denying Gadsden’s request for recusal. To the extent that Gadsden was seeking Judge Linares’s recusal, recusal was not necessary because a reasonable person, with knowledge of the relevant facts and circumstances, would not doubt the District Court judge’s impartiality. See In re Kensington Int’l Ltd., 368 F.3d 289, 301 & n. 12 (3d Cir.2004); Edelstein v. Wilentz, 812 F.2d 128, 131 (3d Cir.1987).
In conclusion, for the reasons given above, we will dismiss for lack of jurisdiction Gadsden’s consolidated case to the extent that it relates to the appeals from the District Court’s orders of July 2, 2008 (C.A. No. 08-4296 and C.A. No. 08-4401). We will affirm the District Court’s order of February 10, 2009 (appealed in C.A. No. 09-1558 and C.A. No. 09-1559).
. Gadsden also seeks to characterize an earlier filing as a notice of appeal and/or to blame personnel in the Clerk's Office for an error in date-stamping her notice of appeal; however, her arguments are not supported by record evidence.
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OPINION
PER CURIAM.
Ilya Roytburd appeals from a decision of the United States Tax Court, which sustained the Internal Revenue Service’s (“IRS”) assessment of tax deficiencies and additions to taxes for the years 2004 and 2005 and imposed a $5,000 penalty pursuant to 26 U.S.C. § 6673. For the following reasons, we will affirm. Roytburd did not file income tax returns for the 2004 and 2005 tax years. The IRS determined that Roytburd was liable for income tax deficiencies of $16,080.70 and $17,362 for 2004 and 2005, respectively, as well as additions to taxes.1 The IRS sent Roytburd notices of deficiency for each year that informed him of the deficiencies and additions. Roytburd filed a timely petition in the United States Tax Court contesting the IRS determinations on the theory that he was not required to pay income tax because he is not a “resident and/or citizen of the United States and is in fact domiciled in the sovereign Republic of Pennsylvania, and claiming state citizenship.” He later filed an amended petition in which he repeated the legal arguments that he is not required to file an income tax return or pay income tax.
The IRS Commissioner moved to dismiss the petition for failure to state a claim and to impose a penalty under § 6673. The Tax Court ordered Roytburd to file a second amended petition, which he did, essentially repeating the claims made in the original and first amended petitions. He also filed an objection to the motion to dismiss. The Tax Court granted the Commissioner’s motion to dismiss and imposed a $5,000 penalty pursuant to § 6673. After the Tax Court denied his motion to vacate, Roytburd timely filed this pro se appeal. Roytburd also requests that this Court issue a writ of error to the Tax Court, a writ of mandamus ordering the clerk to file default against the IRS Commissioner, and a writ of prohibition against the IRS to prohibit the agency from engaging in collections action against him. In the alternative, Roytburd seeks a writ of mandamus to order the Tax Court to order him to pay the deficiency, find the “notorious default” against him null and void, and find that he is “not a Sovereign *620Man but a slave of his created governments subject to its dictates.”
We have jurisdiction pursuant to 26 U.S.C. § 7482(a)(1). We review the Tax Court’s factual findings for clear error and have plenary review over its legal conclusions. See PNC Bancorp, Inc. v. Comm’r of Internal Revenue, 212 F.3d 822, 827 (3d Cir.2000). We review the imposition of a penalty under § 6673 for abuse of discretion. See Sauers v. Comm’r of Internal Revenue, 771 F.2d 64, 70 (3d Cir.1985). The taxpayer bears the burden of proof to show that the determination is invalid. See Helvering v. Taylor, 293 U.S. 507, 515, 55 S.Ct. 287, 79 L.Ed. 623 (1935).
The Tax Court properly dismissed Roytburd’s petition. Roytburd’s arguments are those of a tax protester. We and other courts have consistently rejected such arguments and we need not address them again here. See Sauers, 771 F.2d at 66-67; see also United States v. Mundt, 29 F.3d 233, 237 (6th Cir.1994); United States v. Sloan, 939 F.2d 499, 500-01 (7th Cir.1991); Charczuk v. Comm’r of Internal Revenue, 771 F.2d 471 (10th Cir.1985). In light of the frivolous nature of his claims, the Tax Court did not abuse its discretion in imposing a penalty on Roytburd under § 6673.
To the extent that Roytburd seeks writs of error, mandamus, and prohibition, his requests are denied because he cannot demonstrate a clear and indisputable right to issuance of the writs. See Ken v. United States District Court, 426 U.S. 394, 403, 96 S.Ct. 2119, 48 L.Ed.2d 725 (1976); DeMasi v. Weiss, 669 F.2d 114, 117 (3d Cir.1982).
For the foregoing reasons, we will affirm the Tax Court’s decision. The Commissioner’s motion for sanctions is granted in the sum of $4,000 (four-thousand dollars).
. The IRS also determined that Roytburd was liable for an addition to taxes amounting to $1,410.46 under § 6651(a)(1), $150.31 under § 6654(a), and $908.96 under § 6651(a)(2) for 2004, and $1,444.50, $208.76, and $545.70, respectively, for 2005.
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OPINION
PER CURIAM.
Turgut Yigit petitions for review of an order of the Board of Immigration Appeals (“BIA”), which affirmed an Immigration Judge’s (“IJ”) denial of his motion to reopen. We will grant the petition for review and remand for further proceedings. Yigit is a native and citizen of Turkey. He entered the United States as a visitor in 2000 and overstayed. He was granted voluntary departure on June 4, 2007 and was given until October 2, 2007 to depart. On September 4, 2007, Yigit filed a motion to reopen to adjust his status to lawful permanent resident based on his upcoming marriage to a U.S. citizen, Melinda Sasso. However, at the time he filed his motion, he was still married to Heather Lammert—their divorce did not become final until September 6, 2007. He married Sasso the next day, September 7, 2007.
The IJ found that Yigit’s motion to reopen was timely (the 90th day after the June 4, 2007 decision was September 2, which was not a business day—the motion was filed on the next business day, which was September 4, 2007). However, the IJ found that Yigit had not provided evidence that he was eligible for adjustment of status before the 90-day period during which he could file a motion to reopen expired. The IJ noted that Yigit’s wife did not file her Form 1-130 petition for alien relative and Yigit did not file his Form 1-485 application to adjust status until September 13, 2007. The IJ denied relief for failure to make a prima facie showing of eligibility for relief that would warrant reopening. The BIA affirmed, noting that “the regulations are not intended for the timely filing of motions involving inchoate claims with eligibility to be later established.” Yigit filed a timely, counseled petition for review.
Our jurisdiction is limited to a review of the BIA’s order affirming the denial of Yigit’s motion to reopen, as he did not file a timely petition for review of the BIA’s June 2007 order. See Stone v. I.N.S., 514 U.S. 386, 405-06, 115 S.Ct. 1537, 131 L.Ed.2d 465 (1995). “[W]hen the Board or an Immigration Judge denies reopening on prima facie case grounds, the ultimate decision should be reviewed for an abuse of discretion, while findings of fact should be reviewed for substantial evidence”. Sevoian v. Ashcroft, 290 F.3d 166, 174 (3d Cir.2002). In order to succeed on the petition for review, Yigit must show that the BIA’s ultimate decision affirming the denial of reopening was arbitrary, irrational, or contrary to law. See Tipu v. INS, 20 F.3d 580, 582 (3d Cir.1994).
Yigit argues that the motion to reopen should have been granted, because: (1) his *622motion was timely; (2) he presented material evidence that was not available at his prior hearing; and (3) his evidence, once it became available, supported a prima facie eligibility for relief. We agree. At the time the IJ entered her decision denying the motion to reopen, the IJ was in possession of all the documents showing that Yigit was potentially eligible to adjust his status based on his marriage to Sasso; ie., his certificate showing his divorce from his first wife, his certificate showing his marriage to Sasso, the Form 1-130 Petition for Alien Relative filed on his behalf by Sasso, and Yigit’s Form 1-485 application to adjust status. See IJ’s decision, A.R. 65. Yigit had also explained in his filings with the IJ his good-faith attempts to submit the documents during the 90-day period for reopening, and the reasons, beyond his control, why he could not do so. A.R. 72-73. In these circumstances, where it was apparent that Yigit could demonstrate a prima facie case for relief, we find that the IJ abused her discretion in denying the motion to reopen, and the BIA thus improperly dismissed Yigit’s appeal.1
For the foregoing reasons, we will grant the petition for review, and remand for further proceedings.
. We note that Yigit was not in Government custody; thus, the Government would not have been prejudiced by a delay in awaiting the outcome of reopened proceedings.
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OPINION
BARRY, Circuit Judge.
Chemoil Corporation (“Chemoil”) and Andorra Services, Inc. BVI (“Andorra”) (collectively “Appellants”) appeal the final judgment of the District Court confirming an arbitrator’s award in favor of Venfleet, *624Ltd. (“Venfleet”) and M/V EOS (“EOS”) (collectively “Appellees”) and denying Appellants’ motion to vacate that award. We will affirm.
I. BACKGROUND
We assume the parties’ familiarity with the facts, and include only those facts necessary to resolve the issues on appeal. Chemoil, a purchaser and seller of petroleum products in the global marketplace, directed Andorra, its affiliate, to arrange for the shipment of fuel oil from Amuay Bay, Venezuela to Chemoil’s facility in Bayonne, New Jersey. Andorra chartered EOS, an oil tanker owned by Venfleet. Ultimately, it was the water content of the fuel oil that led to this litigation and arbitration.
The EOS arrived at the PDVSA1 Terminal in Amuay Bay on December 25, 2005, and, after a short delay, the fuel oil was loaded onto the tanker from shore tank 801. Tank 801, which serves as a storage tank for fuel oil, is described as an “open pit” having no overhead protection from the elements. (App. at 84.) Once the fuel oil was loaded, it was to be kept at the appropriate temperature by heating coils. In this case, however, Venfleet “fail[ed] to properly pressure test and inspect the cargo heating coils ... [and] Venfleet concedes the coils were defective and leaked water into the cargo from the moment heating commenced until the vessel arrived in New York.” (Id. at 102.)
Discharge of the fuel oil began upon the EOS’s arrival in the Port of New York on January 6, 2006. Shortly thereafter, however, Chemoil halted the operations, claiming it was motivated by test results revealing that the water content of the cargo was between 1.7% and 1.8% when it should have been no greater than 1%. The EOS drifted for roughly twenty days while several joint inspections took place. Ultimately, discharge resumed and was completed on January 29.
II. PROCEDURAL HISTORY
Appellants filed a Verified Complaint in the U.S. District Court for the District of New Jersey on January 26, 2006, seeking damages for cargo contamination. The parties eventually agreed to arbitrate, selecting Jack Berg as the sole arbitrator. At that point, Appellants sought $471,435.81 in damages allegedly the result of EOS’s leaking heating coils, the EOS’s unseaworthiness, and other faults. For their part, Appellees sought to recover $1,190,112.54, representing the costs associated with demurrage and other expenses. The parties also sought interest and attorneys’ fees.
Arbitration took place over a period of twenty-one months, during which there was “extensive discovery and production of relevant documents,” as well as testimony from several witnesses; however, both sides were dissatisfied with certain aspects of the discovery. (Id. at 92.) In seeking to ascertain the water content of the fuel oil at the time it was loaded onto the EOS at Amuay Bay, the arbitrator made a comprehensive assessment of a variety of evidence, including, for example, the moisture percentage of the fuel oil loaded out of pit 801 onto another tanker just prior to the EOS’s loading, the difference in the EOS’s cargo tank ullages between when the EOS left Venezuela and arrived in New Jersey, and the “limited quantity of fresh water the ship could have generated or have in tanks to possibly increase the water content of the fuel oil....” (Id. at 98.) Based *625on the evidence he found credible, and declining to draw adverse inferences from the evidence he did not, the arbitrator determined that the EOS’s malfunctioning heating coils could not have contributed more than 0.4% of water to the ship’s load and, thus, that the fuel oil had a water content between 1.4% and 1.5% at the time it was loaded onto the tanker from pit 801. Accordingly, the arbitrator found in favor of Appellees, finding no evidence to support Appellants’ rationale for forcing the EOS to remain at sea for twenty days prior to discharging the fuel oil.
By order dated November 19, 2008, the District Court granted Appellees’ motion to confirm the arbitrator’s award and denied Appellants’ cross-motion to vacate or modify that award, pursuant to the Federal Arbitration Act (the “FAA”), 9 U.S.C. §§ 1-11. On November 25, 2008, the Court entered final judgment for Appellees in the amount of $1,986,882.67, plus interest and costs. This appeal followed.2
III. STANDARD OF REVIEW
“We review a district court’s denial of a motion to vacate a commercial arbitration award de novo.” Dluhos v. Strasberg, 321 F.3d 365, 369 (3d Cir.2003); Kaplan v. First Options, 19 F.3d 1503, 1509 (3d Cir.1994).3 In so doing, we are mindful that the FAA was intended to overcome the “hostility of American courts to the enforcement of arbitration agreements.” Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 111, 121 S.Ct. 1302, 149 L.Ed.2d 234 (2001). Indeed, there is a “strong presumption ... in favor of enforcing arbitration awards” embodied in the FAA. Brentwood Med. Assocs. v. United Mine Workers, 396 F.3d 237, 241 (3d Cir.2005). When parties agree to arbitrate, they agree to do so “through to completion,” fully cognizant that “a district court may vacate ... only under exceedingly narrow circumstances.” Dluhos, 321 F.3d at 369-70; Citgo Asphalt Ref. Co. v. Paper, Allied-Indus. Int’l Union, Local 2-991, 385 F.3d 809, 815 (3d Cir.2004) (noting court’s limited role in reviewing arbitrator’s decision because the decision is “bargained for by the parties”). As a result, reviewing courts “affirm easily the arbitration award under this extremely deferential standard—a result that is squarely in line with the purpose behind the FAA where courts are tasked with reviewing an arbitration decision.” Dluhos, 321 F.3d at 370; see Brentwood Med. Assocs., 396 F.3d at 241.
IV. DISCUSSION
Appellants contend that, for various reasons, the arbitrator’s award should be vacated, or, in the alternative, modified. We disagree.4
A. VACATUR
Pursuant to the FAA, courts may vacate an arbitration award in any of four instances, two of which are implicated here: where there was “evident partiality or corruption in the arbitrators,” or “where the arbitrators were guilty of misconduct in *626refusing to postpone the hearing ... or in refusing to hear evidence pertinent and material to the controversy....” 9 U.S.C. § 10(a); Hall Street Assocs. v. Mattel, Inc., 552 U.S. 576, 128 S.Ct. 1396, 1402, n. 4, 170 L.Ed.2d 254 (2008). Appellants argue that these provisions, as well as public policy concerns, justify vacating the arbitrator’s award in this case.
1. The Arbitrator’s Conduct Neither Created the Appearance of Bias Nor Violated Fundamental Fairness in Contravention of 9 U.S.C. § 10(a)(2)-(3).
In order to set aside an arbitrator’s award on the ground of § 10(a)(2) “evident partiality,” “the challenging party must show ‘a reasonable person would have to conclude that the arbitrator was partial’ to the other party to the arbitration.” Kaplan v. First Options of Chi., Inc., 19 F.3d 1503, 1523 n. 30 (3d Cir.1994) (quoting Apperson v. Fleet Carrier Corp., 879 F.2d 1344, 1358 (6th Cir.1989)). Under this standard, the evidence must be “powerfully suggestive of bias.” Id. (quoting Merit Ins. Co. v. Leatherby Ins. Co., 714 F.2d 673, 681-82 (7th Cir.1983)). Bias in refusing to consider certain evidence could result in an unfair hearing, and so, pursuant to § 10(a)(3), “a district court may vacate an award if a party to an arbitration proceeding has not been given notice and opportunity to present arguments and evidence on the merits of the dispute.” Teamsters Local 312 v. Matlack, Inc., 118 F.3d 985, 995 (3d Cir.1997) (emphasis added). Of course, vacatur is not required in every case where certain relevant evidence is excluded; rather, § 10(a)(3) is implicated where the procedural error constitutes “fundamental unfairness.” Id.
Appellants argue that the arbitrator demonstrated his bias by failing to ensure that relevant documentary evidence was disclosed in a timely manner. More specifically, they argue that they were prejudiced by the arbitrator’s refusal to order the production of documents related to the EOS’s SAAB radar system, “which records the level of liquids in the cargo control room.” (App. at 84.) Appellants contend that they first learned that the EOS was equipped with SAAB technology on the eve of their expert’s testimony. They maintain that the SAAB radar’s “sophisticated electronic liquid cargo measuring system” would have provided valuable insight into the water content of the fuel oil at various points during the journey from Amuay Bay to New Jersey. (Appellants’ Br. at 37.) For their part, Appellees contend that the SAAB radar is “not used for cargo measurements” while tankers are at sea, Appellees’ Br. at 14-15, but, instead, measurements are taken by the EOS’s gauges when the ship is “relatively static,” Supp. App. at 19.
There is no evidence to suggest that the arbitrator’s refusal to delay the proceedings and order the production of this evidence was motivated by bias, nor is there any indication that it resulted in a fundamentally unfair proceeding. It is clear from the arbitrator’s written decision that he was aware of the SAAB radar system, and despite Appellants’ contentions, he found that the “remote SAAB gauges, trim and list gauges, digital draft readings, etc. are available for readouts by all inspectors and surveyors.” (App. at 84.) Ultimately, whether Appellants were on notice of the SAAB radar system so that they could request its data is immaterial, because the arbitrator did not find the system important to his decision. He viewed the SAAB system as being one of two “closed cargo measurement systems,” the other being the MMC equipment. (Id.) Based on his expertise, the arbitrator made a judgment as to the cargo’s water content after considering a variety of factors, one of which was “the difference in the EOS’ cargo tank *627ullages between loading Amuay Bay and arrival at Bayonne.” (Id. at 98.) That the arbitrator relied on the inspection reports from Amuay Bay and Bayonne—in conjunction with other evidence the result of the extensive discovery in this case—instead of the SAAB radar system to come to his conclusion about water content is not “powerfully suggestive of bias.” See Kaplan, 19 F.3d at 1523, n. 30. Furthermore, the arbitrator’s evidentiary rulings concerning the SAAB equipment did not “so a£fect[] the rights of [appellants] that it may be said that [they were] deprived of a fair hearing.” See Teamsters Local 312, 118 F.3d at 995. The District Court was justified in rejecting Appellants’ argument that § 10(a) of the FAA required that the arbitrator’s award be vacated.
2. The Arbitrator Did Not Impose An Improper Burden on Appellants Such that Vacatur is Required.
Appellants next argue that the District Court erred in denying the motion to vacate because the arbitrator “manifestly disregarded the law” in reaching his decision. (Appellants’ Br. at 39.) .That an arbitrator’s manifest disregard of the law may support a decision to vacate an arbitration award is not a new concept. See, e.g., Tanoma Mining Co., Inc. v. Local Union No. 1269, 896 F.2d 745, 749 (3d Cir.1990); Local 863 Int’l Bhd. of Teamsters v. Jersey Coast Egg Producers, Inc., 773 F.2d 530, 533 (3d Cir.1985). Whether this concept continues to exist today as an independent, viable ground for vacatur,5 an issue we need not decide, this case does not evidence one of those “extremely narrow circumstances” supporting a decision to vacate. Metromedia Energy, Inc. v. Enserch Energy Servs., Inc., 409 F.3d 574, 578 (3d Cir.2005) (narrow ground supporting vacatur exists “where an arbitration panel manifestly disregards, rather than merely erroneously interprets, the law”).
Appellants complain, in particular, of the arbitrator’s consideration of unauthenticated evidence, which he then found sufficient to support Appellees’ claim that the cargo had inherent defects. The result, they argue, was that an unduly heavy burden was shifted to them “to show by a preponderance of the evidence the water content of the cargo when loaded and during discharge----” (Appellants’ Br. at 46.) The arbitrator made a choice to credit some pieces of evidence more than others. Appellants submitted cargo test results showing the fuel oil’s water content to be 0.7% at loading. They also presented evidence of a “retained sample,” which showed a 0.8% water content at loading. Nonetheless, the arbitrator expressed concern that, among other things, the samples were “improperly drawn.” He found that the contrary evidence undermining those figures was “substantial and controlling.” (App. at 100.) Thus, the arbitrator did not manifestly disregard the law in setting out burdens but, rather, made a *628factual determination that the weight of the evidence supported one theory of water content over another, and carefully explained his reasoning. As such, this is not “the rarest case” compelling us to vacate. Newark Morning Ledger Co. v. Newark Typographical Union Local 103, 797 F.2d 162, 165 (3d Cir.1986); see Major League Umpires Ass’n v. Am. League of Prof'l Baseball Clubs, 357 F.3d 272, 289 (3d Cir.2004) (quoting Remmey v. PaineWebber, Inc., 32 F.3d 143, 146 (4th Cir.1994)) (“Limited judicial review is necessary to encourage the use of arbitration as an alternative to formal litigation.... A policy favoring arbitration would mean little, of course, if arbitration were merely the prologue to prolonged litigation”).6
B. MODIFICATION
The FAA also empowers courts to modify an arbitration award in any of the following instances: “[wjhere there was an evident material miscalculation of figures ...”; [wjhere the arbitrators have awarded upon a matter not submitted to them, unless it is a matter not affecting the merits of the decision upon the matter submitted; and “[wjhere the award is imperfect in matter of form.... ” 9 U.S.C. § ll(a)-(c). Any modification is entirely discretionary and should “promote justice between the parties.” Id. (“[Tjhe United States court in and for the district wherein the award was made may make an award modifying or correcting the award ....”) (emphasis added); see Hall Street, 552 U.S. 576, 128 S.Ct. at 1403.
1. The Arbitrator Did Not Exceed His Authority by Awarding Pre- and Postr-Judgment Interest.
Appellants argue that the arbitrator lacked the authority to award Appellees pre-and post-judgment interest and that, in any event, the interest rates that he imposed were in excess of what 28 U.S.C. § 1961 permits. At the center of their claim is the argument that because the parties agreed to arbitrate without any prior agreement as to interest, they “had every reason to believe ... the District Court would determine any award.” (Appellants’ Br. at 51.) We disagree. As the arbitrator’s decision indicates, “[bjoth parties have demanded interest on their respective claims.” (App. at 108). Because the parties agreed to submit the dispute to an arbitrator, the arbitrator had the authority to see the matter “through to completion.” Dluhos, 321 F.3d at 369-70. There is simply no basis for believing that the arbitrator was to handle only certain matters, while leaving related pieces of the overall dispute for the District Court to resolve. Furthermore, Appellants offer nothing to square their argument that 28 U.S.C. § 1961 requires an interest rate different from that imposed by the arbitrator with the language in Sun Ship, Inc. v. Matson Navigation Co., which states that the interest rate is “a matter of district court discretion ... guided by 28 U.S.C. § 1961.” 785 F.2d 59, 63 (3d Cir.1986). *629And, we note, the arbitrator explained the basis for the interest rates he imposed, namely “the average prime interest rate” during the relevant periods. (App. at 108.)7
2. The Arbitrator Did Not Err in Aivarding Attorneys’ Fees.
Appellants argue that the arbitrator erred in awarding attorneys’ fees to Appellees because such an award was outside the scope of the arbitration, although they concede that they requested attorneys’ fees for themselves. The District Court upheld the award of attorneys’ fees because that award “dr[ew] its essence” from the parties’ decision to arbitrate; furthermore, the Court did not find the award to be “completely irrational.” {Id. at 9.) No serious argument compels us to alter Shat determination.
CONCLUSION
We will affirm the final judgment of the District Court.
. PDVSA, or Petróleos de Venezuela, is the Venezuelan national oil company that supplied the fuel oil that was loaded onto the EOS.
. The matter was properly before the District Court pursuant to 28 U.S.C. §§ 1333 and 1391. We have appellate jurisdiction under 28 U.S.C. § 1291.
.One of Appellants’ contentions is that the award exceeded the scope of the arbitrator’s authority because he determined that Chemoil and Andorra were alter egos and jointly liable without having heard any argument on the issue. There was no argument because, as the District Court noted, Appellants never raised this issue to the arbitrator.
. The District Court did not consider "manifest disregard for law" as a basis for vacatur given its understanding that the Supreme Court's decision in Hall Street stands for the proposition that the FAA provides the only grounds for vacatur. Our sister circuits have expressed varying views on the impact of Hall Street. Compare Telenor Mobile Commc’ns AS v. Storm LLC, 584 F.3d 396, 407 n. 6 (2d Cir.2009) ("[W]e [previously] read Hall St. to hold that the FAA set forth the ‘exclusive’ grounds for vacating an arbitration award, and that the term 'manifest disregard' was merely a judicial gloss' on some of those grounds.”), with Citigroup Global Mkts., Inc. v. Bacon, 562 F.3d 349, 355 (5th Cir.2009) (“[T]o the extent that manifest disregard of the law constitutes a nonstatutory ground for vacatur, it is no longer a basis for vacating awards under the FAA.”).
. Assuming without deciding that, post -Hall Street, "[ajrbitration awards ... can be vacated when such awards violate public policy,” United. Transp. Union Local 1589 v. Suburban Transit Corp., 51 F.3d 376, 381 (3d Cir.1995), there was no such violation here. Appellants contend that vacatur is appropriate because Appellees’ actions allegedly ran afoul of two public interests, namely environmental protection and the safety/seaworthiness of vesseis. Although the arbitrator found the EOS to be unseaworthy because of its defective heating coils, Appellants did not show that the leaking coils posed environmental or safety risks beyond damaging the cargo, much less that upholding this award "would thwart achievement of the overriding interest in public safety furthered by the [laws and] regulations.” Exxon Shipping Co. v. Exxon Seamen's Union, 993 F.2d 357, 364 (3d Cir.1993).
. The arbitrator found that the EOS should have been discharged without delay, and further noted that, while the delay cost Venfleet, "Chemoil profited enormously ... due to the appreciation of fuel oil values during the period for which demurrage is being claimed.” (App. at 107.) The arbitrator awarded Venfleet interest on the more than nine-month delay in receiving payment after hearing "no rational explanation” from Appellants for that delay. We reject without further comment Appellants' claim that the delayed payment was neither in dispute nor was an issue before the arbitrator.
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OPINION
PER CURIAM.
Cbane Toska petitions for review of an order of the Board of Immigration Appeals (“BIA”), which dismissed her appeal of the removal order of an Immigration Judge (“IJ”). We will deny the petition for review.
Cbane Toska is a native and citizen of Albania. She entered the United States in December 2004 on a visitor’s visa and stayed longer than permitted. Toska applied for asylum and related relief. Toska testified as follows.
Toska stated that she was persecuted in Albania due to her involvement with the Democratic Party. She joined the party in January 1991 and was involved in putting up posters, distributing literature, and she used the restaurant she and her husband owned for meetings. A.R. 89-90. She also participated in elections. The Democratic Party came into power in March 1992 and governed until 1997, when the Socialists took power. A.R. 113-14.
Toska testified that she was arrested on September 14, 1998 when she and her husband were returning from the funeral of a Democratic Party leader. She was held overnight and was beaten. The police threatened to kill her if she didn’t give up the Democratic Party. A.R. 108-12. She was next arrested on June 6, 2001 along with a friend during the electoral campaign. She was held for three hours, was threatened by the police, and was beaten. A.R. 105-08. She was arrested for the last time on September 24, 2003. Her restaurant was full of supporters of the Democratic Party, and the police came, shut down the restaurant, and arrested her. She was held for about five hours. They threatened her life and beat her. A.R. 103-04. On September 3, 2004 she was going to work when four people, who had made trouble at the restaurant the night before, came in front of her car and broke the windshield. They took her out of the car, hit her and threatened to kill her. Her leg was hurt and she sought care from a nurse or doctor in her home. A.R. 94-*631101. She and her husband consulted a lawyer who advised them to leave Albania. A.R. 95. On October 13, 2004, her house was attacked with firearms and her dog was poisoned. A.R. 92-94. Toska then left for the United States. Her husband remains in Albania with the children. Toska testified that she was aware that the Democratic Party won in the 2005 election, but she stated that it was only a weak coalition that prevailed. She testified that she did not believe she would be safe if she were to return to Albania. A.R. 117.
Toska presented an affidavit from an expert on conditions in Albania who described conditions in Albania and who opined that Toska’s description of what happened to her was consistent with those conditions. Toska also presented a membership card for the Democratic Party and an affidavit from officials of the Democratic Party. She also submitted a receipt noting she had received medical treatment for 7 days in September 2004. The IJ found problems with some of her evidence. The affidavit from the Party did not describe any problems that Toska had personally had due to her membership, such as her arrests, even though she testified that she had informed party officials each time she had a problem.1 The medical receipt simply said that she had been treated at home for seven days in September 2004, and does not say what her injury was. The receipt was not dated. A.R. 178-79.
The IJ believed that Toska was a member of the Democratic Party, that she owned a restaurant, and that she may have been insulted and have gotten in debates over her political activity. However, the IJ noted that there was no corroboration for her testimony concerning her arrests and injuries. The IJ noted that although she was in frequent contact with her husband, there was no affidavit or other corroboration from her husband. The IJ also noted that the lawyer she consulted in Albania could have provided an affidavit. The IJ also found that her testimony regarding the September 2003 arrest, that she was beaten, was inconsistent with her application, which only said she was threatened. The IJ did not believe that Toska had been persecuted in the past, and noted that with the Democrats in power, she was not likely to be persecuted in the future. The IJ also found no evidence that she would be tortured. The IJ denied relief, but granted voluntary departure. A.R. 57-72.
The BIA adopted and affirmed the IJ’s decision. The BIA affirmed the IJ’s adverse credibility finding, agreeing that Toska had failed to present reasonably available corroborative evidence and agreeing that the finding was supported by unexplained discrepancies. The BIA also found there was no evidence in the record that Toska would be tortured, and noted specifically that the Democratic Party was in power in Albania. The BIA extended Toska’s period for voluntary departure to 60 days from September 19, 2008. A.R. 3-4. Toska filed a timely, counseled petition for review.
Because the BIA relied on the IJ’s reasoning, the decisions of the BIA and the IJ both must be considered. See Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir.2004). Credibility determinations are reviewed under the substantial evidence standard. See Xie v. Ashcroft, 359 F.3d 239, 243 (3d Cir.2004). The Court must uphold the credibility determination unless “any reasonable adjudicator would be compelled to *632conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B).- Adverse credibility determinations based on speculation or conjecture, rather than on record evidence, are reversible. Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir.2002).
Before denying asylum based on lack of corroboration, the agency must conduct a three-part inquiry: “(1) an identification of facts for which it is reasonable to expect corroboration; (2) the presence or absence of such corroboration in the record; and (3) the adequacy of the applicant’s explanation for its absence.” Toure v. Att’y Gen., 443 F.3d 310, 323 (3d Cir.2006) (citing Abdulai v. Ashcroft, 239 F.3d 542, 554 (3d Cir.2001)). Because the BIA did not conduct its own Abdidai inquiry and merely deferred to the findings of the IJ, this Court directly reviews the decision of the IJ. See Abdulai, 239 F.3d at 549 n. 2. The IJ’s findings are given considerable deference. The new language of 8 U.S.C. § 1252(b)(4), added by the REAL ID Act of 2005 provides that “no court shall reverse a determination made by a trier of fact with respect to availability of corroborating evidence ... unless the court finds ... that a reasonable trier of fact is compelled to conclude that such corroborating evidence is unavailable.”
Toska argues that the IJ based his adverse credibility finding on one minor perceived inconsistency-—that her application simply said her life was threatened during her 2003 detention whereas she testified that she was beaten during that detention. Petitioner’s Brief at 10-11. One could argue that there is not really an inconsistency here; she may have felt her life was threatened, in part, by means of the beating. However, the IJ also based his adverse credibility finding in large part on the affidavit from the Democratic Party, which failed to mention that Toska had been arrested or beaten because of her political activities, even though she said she had informed them of all her troubles. A.R. 65-66. The record does not compel us to find that Toska was credible.
Further, even assuming she was credible, the IJ did not err in requiring corroboration for Toska’s claims. An alien’s credible testimony may satisfy the burden of proof for a claim for relief from removal. See Dia v. Ashcroft, 353 F.3d 228, 247 (3d Cir.2003). However, the BIA may require even “otherwise-credible applicants to supply corroborating evidence in order to meet their burden of proof.” Abdulai, 239 F.3d at 554. It is reasonable to expect corroboration about facts central to a claim and easily subject to verification. Id. It also is reasonable to expect letters from family members remaining in an applicant’s home country. See id. Toska did not provide any evidence from her husband, and her only explanation was that her attorney did not tell her to provide such evidence. The affidavit and medical receipt she did provide, while not contradictory, do not lend much support to her claims.
Although Toska’s testimony describes some significant instances of past persecution—beatings and detentions for her political activities, and having her house fired upon—we find that substantial evidence supports the IJ’s adverse credibility finding, and his finding that Toska did not provide reasonably available corroborative evidence.
Because Toska failed to meet the burden of proof required for asylum, we agree with the BIA that she necessarily failed to meet the higher burden of proof for statutory withholding of removal. We further agree that because her claim for relief under the Convention Against Torture is based on the same testimony that was found to be incredible, she has not established that it is more likely than not that *633she will be tortured upon her return to Albania. We will therefore deny the petition for review.
. The affidavit simply states that Toska and her husband were originally from the NorthEast of the country, that they had been insulted by the ‘‘aborigines,” and that there had been “events of bickering and arguments with residents.” A.R. 192.
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OPINION OF THE COURT
STAPLETON, Circuit Judge:
Appellant David Czapinski filed this case against his employer, Iron City Industrial Cleaning Corp. (“Iron City”), alleging violations of the Americans With Disabilities Act (“ADA”), the Age Discrimination In Employment Act (“ADEA”), and the Pennsylvania Human Relations Act (“PHRA”). Czapinski appeals from a summary judgment entered in favor of Iron City.
Because we write solely for the parties, we will assume familiarity with the record and the proceedings in the District Court. We will affirm essentially for the reasons set forth in the Report and Recommendations adopted by the District Court as its opinion.
I.
In order to make out a prima facie case under the ADA or the PHRA, the plaintiff must tender evidence which, if credited, would establish that he has a “disability” within the meaning of the ADA. The ADA defines “disability” as a physical or mental impairment that substantially limits a major life activity. Czapinski insists that he tendered evidence to the District Court supporting a finding that he has a physical impairment that substantially limits the major life activities of lifting and working. With respect to the major life activity of working, the Secretary’s regulations provide that:
[t]he term [^substantially limits!’] means significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities. The inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working.
29 C.F.R. 1630.2(j)(S)(i) (emphasis added).
Czapinski argues that a genuine issue of material fact exists as to whether he is substantially limited in his ability to lift and perform truck duties. As he points out, the record establishes that he is subject to lifting restrictions and that he has been ordered by his treating physicians not to return to truck duty. However, his evidence, viewed in the light most favorable to him, would not support a finding that he was “disabled” within the meaning of the ADA. The lifting restriction reflected in this record “does not render him sufficiently different from the general population such that he is substantially limited in his ability to lift.” Marinelli v. City of Erie, 216 F.3d 354, 364 (3d Cir.2000). Nor will this record support a finding that Czapinski’s inability to perform his truck duties rendered him unable to perform either a class of jobs or a broad range of jobs in various classes compared to the average person having comparable training, skills, and abilities. Ibid.
II.
The District Court held that Czapinski was unable to establish a prima facie case under the ADEA because he was unable to show that he was qualified for the position he held prior to termination. Citing Detz v. Greiner Industries, Inc., 346 F.3d 109 (3d Cir.2003), the District Court reasoned as follows:
Here, Plaintiff is bound by judicial admissions that he was unable to perform his former job responsibilities because they required “heavy lifting on a regular *635basis.” See discussions supra. In appealing before the Worker’s Compensation Judge, Plaintiffs purpose, by definition, was to convince the Judge he was unable to engage in his prior work due to a vocation-related injury. Plaintiff “succeeded in convincing the [Judge] that his physical limitations actually prevented him from continuing” his job, and these circumstances preclude a demonstration by Plaintiff that he was “qualified” to perform his former positions under the ADEA.
App. at 15. The District Court correctly concluded that our decision in Detz required the conclusion it reached.
III.
The judgment of the District Court will be affirmed.
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OPINION OF THE COURT
FUENTES, Circuit Judge:
Christopher Barton brought this action against William Curtis, Jr., an investigator for the United States Virgin Islands Department of Justice (“DOJ”). Barton alleges that Curtis, while investigating a complaint against Barton that Barton’s ex-wife had filed with the DOJ, recklessly misrepresented facts in an affidavit Curtis submitted in an effort to obtain a warrant for Barton’s arrest. The District Court granted Curtis’s motion for summary judgment, finding that he was entitled to qualified immunity. We will affirm.1
I.
This case has its genesis in a dispute between Barton and his ex-wife, Mirna Barton (“Mirna”), over the custody over their two children. Barton initially commenced child custody proceedings in North Carolina, but the North Carolina court subsequently relinquished its jurisdiction over the matter to the Florida court system, where Mirna had separately commenced custody proceedings.
A custody hearing before a special master in Florida took place, following which the special master issued a series of “findings and recommendations” dated August 6, 1999. In his findings, the special master determined that Barton had “unresolved drug problems[,] ... [and] questionable fitness as a parent,” and that Barton had interfered with Mima’s ability to visit the children. (J.A. 99.) The special master thus recommended that the children be returned to Florida to be reunited with their mother, and that Barton and Mirna have joint custody, with Mirna to act as primary residential parent. On August 24, 1999, a Florida judge, the Hon. Robert Carney, entered an order ratifying and approving the master’s findings, “subject only to timely filed objections.” (J.A. 96.) Barton apparently filed a timely objection, although this filing does not appear in the record before us. As Judge Carney stated in an affidavit drafted years after these events took place, the fact that Barton filed an objection meant that the ratification contemplated in the August 24, 1999 order never actually occurred.
In August 1999, Barton moved with his children to the Virgin Islands.2 Seven months later, Barton filed a petition with the Virgin Islands Territorial Court to get custody of the children. In his petition, Barton referenced the Florida proceedings, stating that he believed Mirna had dropped the matter in order to reconcile with Barton, and further stating that he was a “fit and proper person to be awarded custody.” (J.A. 110.) In September 2000, the Territorial Court granted Barton sole physical custody of his children.
When she became aware of the Territorial Court order, Mirna filed an objection, producing the special master’s findings *637and recommendations and stating—incorrectly, it turns out—that the document was a valid order of the Florida court. The Territorial Court amended its prior order and granted joint custody to Barton and Mirna, with Mirna to act as primary residential parent. The Territorial Court further determined that Barton had committed fraud upon the court by making numerous statements and omissions it found to be false, including Barton’s failure to inform the court that he had been “ordered” by the special master to return the children to Florida in the same month that he moved them to the Virgin Islands. (J.A. 91.)
Pursuant to a complaint Mirna filed with the DOJ, Curtis, an investigator for the DOJ, launched an investigation into Barton’s alleged fraud. After reviewing the Territorial Court file, Curtis drafted an affidavit in support of an application for an arrest warrant for Barton. The affidavit stated that the Florida court’s custody award made Mirna the primary residential parent of the two children, and it referenced the special master’s findings concerning Barton’s drug use and questionable parental fitness. The affidavit further stated that Barton took the children to the Virgin Islands in violation of a court order, and that Barton had made false representations to the Territorial Court by failing to inform it of the special master’s findings concerning his drug use and questionable parental fitness.3
A warrant was issued and Barton was arrested, charged, and ultimately found guilty of violating a Virgin Islands statute which makes it illegal to make false statements to the government. Barton’s conviction was overturned on appeal. The appellate court determined that the trial court had improperly admitted the special master’s findings and had incorrectly characterized them as an order of the Florida court; as an affidavit of Judge Carney, the Florida judge, made clear, the findings never actually were ratified given that Barton had filed timely objections. Significantly, neither this affidavit, nor the objections Barton filed with the Florida court, were in the Territorial Court file Curtis reviewed when preparing the affidavit that served as the basis for Barton’s arrest.
Barton brought this suit against Curtis pursuant to 42 U.S.C. § 1983, alleging that his arrest was obtained by false statements and reckless omissions in Curtis’s affidavit. In particular, Barton alleges that Curtis misrepresented the nature of the special master’s findings and them legal significance. The District Court granted Curtis’s motion for summary judgment, concluding that although Curtis’s investigation could have been more thorough, Barton’s evidence failed to show that Curtis’s affidavit exhibited a reckless disregard for the truth.4 The district court further found that even if Curtis had shown a reckless disregard for the truth, *638Curtis’s affidavit, cured of the deficiencies Barton identified, would still support a finding of probable cause.
II.5
“Government officials are immune from suit in their individual capacities unless, taken in the light most favorable to the party asserting the injury, the facts alleged show the officer’s conduct violated a constitutional right and the right was clearly established at the time of the objectionable conduct.” Giles v. Kearney, 571 F.3d 318, 325 (3d Cir.2009) (internal quotations and citations omitted). There is no question that the right at issue herein has long been clearly established: if an officer “recklessly disregard^] the truth in his warrant application, and [if] ... a warrant application based on what [the officer] should have told the judge would have lacked probable cause,” then that officer has violated the arrestee’s clearly established Fourth Amendment rights. Wilson v. Russo, 212 F.3d 781, 786 (3d Cir.2000) (emphasis omitted). The question here is whether the District Court correctly concluded that the evidence failed to establish that Curtis recklessly disregarded the truth in his warrant application.
We agree with the District Court’s conclusion. The crux of Barton’s argument concerning Curtis’s alleged recklessness is that Curtis, in reviewing the Territorial Court file, should have recognized that Judge Carney’s August 1999 order, which, in effect, granted custody of the children to Mirna, did not have the force of law. Barton suggests that Curtis should have known that the order, which expressly adopted the recommendations contained in the special master’s report, became invalid when Barton filed an objection—even though the objection does not appear in the Territorial Court record.
We cannot agree. We have explained that “assertions [in warrant applications] are made with reckless disregard for the truth when an officer has obvious reasons to doubt the truth of what he or she is asserting,” and that this “standard is similar to the actual malice standard set forth in First Amendment defamation claims.” United States v. Yusuf, 461 F.3d 374, 383 (3d Cir.2006) (citation omitted, emphasis added). We see no basis whatsoever, let alone an “obvious” basis, for Curtis to have discerned from the Territorial Court file that Burton filed an objection that altered the legal status of Judge Carney’s order. Id. Indeed, both Curtis and the Territorial Court judge reached the same conclusion from the plain language of the Florida court’s order: that the Florida court had made Mirna the primary residential parent on account of, among other things, Barton’s drug use and parental unfitness, and that Barton was required under the terms of the order to return his children to Florida. While we now know that the Florida court’s order became invalid as a result of Barton’s objection, the Territorial Court record available to Curtis did not disclose this fact, and nothing in the record before us suggests that Curtis had “obvious reasons to doubt the truth of [the assertions]” in his warrant application. Id. We therefore agree with the District Court that Curtis is entitled to qualified immunity.
*639hi.
For the foregoing reasons, we will affirm the District Court’s grant of summary judgment.
. The District Court had jurisdiction pursuant to 28 U.S.C. § 1331 and we have jurisdiction pursuant to 28 U.S.C. § 1291.
. The parties dispute whether Barton moved to the Virgin Islands in anticipation of the Florida court's ratification of the special master's findings or for another reason. This dispute is not material for purposes of the matter before us.
. Curtis's affidavit did not mention the Territorial Court’s finding that Barton had failed to inform it that the North Carolina court had relinquished jurisdiction over the custody matter to the Floi ida court or that the North Carolina court’s award of temporary custody was no longer valid. These findings were not accurate, as Barton appears to have informed the Territorial Court of these facts.
. The District Court denied Curtis’s first motion for summary judgment, finding that disputed questions of fact foreclosed a determination as to qualified immunity at that time. We determined in Barton v. Curtis, 497 F.3d 331 (3d Cir.2007), that we did not have jurisdiction over Curtis’s interlocutory appeal of this first summary judgment order.
. We review the District Court’s grant of summaty judgment de novo and apply the same standard as the District Court. See MBIA Ins. Corp. v. Royal Indem. Co., 426 F.3d 204, 209 (3d Cir.2005). Summary judgment is appropriate where the movant establishes that there are no material issues of fact, and that he is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c).
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SUMMARY ORDER
Petitioner Tak Man Lee, a native and citizen of the People’s Republic of China, seeks review of a January 14, 2009 order of the BIA denying his motion to reopen. In re Tak Man Lee, No. A070 905 453 (B.I.A. Jan. 14, 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. Kaur v. BIA, 413 F.3d 232, 233 (2d Cir.2005) (per curiam). 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. 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 circumstances 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 found that Lee’s motion to reopen did not qualify for such an exception.
Indeed, Lee failed to establish sueh circumstances based on the birth of his U.S. citizen children. See Li Yong Zheng v. U.S. Dep’t of Justice, 416 F.3d 129, 130-31 (2d Cir.2005); see also Wei Guang Wang v. BIA, 437 F.3d 270, 273-74 (2d Cir.2006). As the BIA noted, the country conditions evidence that Lee cited in his motion to reopen stated that enforcement of the family planning policy had continued as opposed to stating that conditions had changed. Here, aside from referencing his own unsupported statement in his motion to reopen that the Chinese family planning policy had “tightened,” Lee cites evidence that is not in the record of his case; however, in considering a petition for review of a final order of removal, we must “decide the petition only on the administrative record on which the order of removal is based.” 8 U.S.C. § 1252(b)(4)(A).
*464For 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
Eduardo Ramerez, who was convicted after a jury trial of one count of money laundering, see 18 U.S.C. §§ 1956(a)(3), 2, appeals from the denial of his motions for a judgment of acquittal, see Fed.R.Crim.P. 29, and for a new trial, see Fed.R.Crim.P. 33(a). The crux of his argument is that the evidence was insufficient as a matter of law to support the jury verdict. We assume the parties’ familiarity with the facts and the record of prior proceedings, which we reference only as necessary to explain our decision.
1. Rule 29 Motion
A defendant raising a sufficiency challenge to a jury verdict bears a “heavy burden,” because a court must uphold the conviction if “ ‘any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” United States v. MacPherson, 424 F.3d 183, 187 (2d Cir.2005) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)) (emphasis in original). Thus, while we review the denial of a Rule 29 motion de novo, we consider the trial evidence in the light most favorable to the government, bearing in mind that “the task of choosing among permissible competing inferences is for the jury.” United States v. Florez, 447 F.3d 145, 155 (2d Cir.2006).
Applying these principles to this case, we reach the same conclusion as the district court, i.e., that the evidence was sufficient to support Ramerez’s conviction. Confidential informant Fabio Hernandez testified at trial that he told Ramerez and Fernando Obregon-Torres, Ramerez’s employer, that he sought to conceal the fact that certain money was the proceeds of illegal drug sales by using that money to purchase gold, which would then be transported to Colombia.1 This was enough, by itself, to permit a reasonable jury to infer Ramerez’s knowledge that Hernandez’s gold transactions were a means to launder drug proceeds.
A jury could also reasonably infer Ramerez’s participation in the May 21, 2003 gold transaction between Hernandez and Alberto Quichiz from at least three pieces of evidence: (1) Hernandez’s testimony that he was introduced to Alberto Quichiz as an alternate source of gold by Ramerez and Obregon-Torres; (2) a recorded conversation in which Ramerez appeared to acquiesce in Hernandez’s report that he had assured Quichiz that Ramerez had sanctioned their gold transaction, despite a prior arrangement for Hernandez to deal *469with Obregon-Torres; and (3) Ramerez’s further recorded acknowledgment that he would receive a “tip” for his assistance in the Hernandez-Quichiz transaction.
On this record, the district court properly denied Ramerez’s Rule 29 motion for a judgment of acquittal.
2. Rule 33 Motion
We review the denial of a Rule 33 motion for a new trial for abuse of discretion. See United States v. McCourty, 562 F.3d 458, 475 (2d Cir.2009). A new trial is warranted only in “extraordinary circumstances” when there is “a real concern that an innocent person may have been convicted.” Id. (internal quotation marks omitted). That is not this case. As already noted, the trial evidence was sufficient to support the jury’s finding that Ramerez aided and abetted a money laundering transaction. Indeed, the record evidence indicates that Ramerez volunteered to provide still further money laundering assistance to Hernandez, e.g., by providing access to “trustworthy” associates or by changing the color of gold to disguise it for transport. Under these circumstances, we cannot identify “manifest injustice” in the district court’s denial of Ramerez’s Rule 33 motion. See id. at 477.
We have reviewed Ramerez’s other arguments and they are without merit. Accordingly, the judgment of conviction is AFFIRMED.
. That the district court mistook the date of this conversation, which occurred in August 2001, is of no moment. Hernandez's testimony establishes that Ramerez was aware of the money laundering scheme in advance of May 2003, when die conduct at issue here occurred. How far in advance he acquired this knowledge is not significant unless he could show that he afterward forgot it.
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SUMMARY ORDER
Plaintiff Uzo Akujuo, pro se, appeals from an order of the district court granting Defendants’ motion for summary judgment and dismissing his claims under the First, Fourth, Fifth, Ninth, and Fourteenth Amendments to the United States ■Constitution, as well as under 42 U.S.C. §§ 1981 & 1985. We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.
We review orders granting summary judgment de novo. Woodman v. WWOR-TV, Inc., 411 F.3d 69, 75 (2d Cir.2005). Our review of the record confirms that the district court properly granted Defendants’ motion for summary judgment, and we affirm for substantially the reasons set out in the court’s thorough and well-reasoned August 1, 2008 memorandum decision and order.
We have considered all of Akujuo’s remaining arguments, and they are without merit. For the foregoing reasons, the judgment of the district court is hereby AFFIRMED.
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SUMMARY ORDER
Xiang Jin Zheng, a native and citizen of the People’s Republic of China, has filed a petition for review of an August 6, 2007 order of the BIA declining to reopen her deportation proceedings. In re Xiang Jin Zheng, No. A 073 177 441 (B.I.A. Aug. 6, 2007). We assume the parties’ familiarity with the underlying facts and procedural history in this case.
I. The BiA’s April 2005 Decision
Though she filed a petition for review that was timely as to the BiA’s August 2007 order, Zheng also challenges an April 2005 BIA order, in which it reversed the decision of an immigration judge granting asylum. The government argues that this Court lacks jurisdiction to review the BiA’s April 2005 decision. We agree. This Court has jurisdiction to consider “final” orders of removal in immigration cases, see 8 U.S.C. § 1252(a)(1), and we have held that “a BIA order denying relief from removal and remanding for the sole purpose of considering voluntary departure is a final order of removal that this Court has jurisdiction to review.” See Alibasic v. Mukasey, 547 F.3d 78, 83-84 (2d Cir.2008); see also Arias Chupina v. Holder, 570 F.3d 99, 103-05 (2d Cir.2009)(per curiam). Although Zheng filed a timely petition for review of the BiA’s April 2005 decision, she withdrew it with prejudice. Because the current petition for review is timely only with respect to the BiA’s August 2007 order, we lack jurisdiction to address the BiA’s April 2005 decision. See Stone v. INS, 514 U.S. 386, 405, 115 S.Ct. 1537, 131 L.Ed.2d 465 (1995) (holding that the Court treats each petition for review as challenging only the BIA decision from which it was timely filed); Samuels v. Northern Telecom, Inc., 942 F.2d 834, 837 (2d Cir.1991) (“Res judicata may not be avoided on the basis of ... an attorney’s ill-considered decision to enter into an all-encompassing stipulation of withdrawal with prejudice.”). Accordingly, Zheng’s petition for review is dismissed to the extent she challenges the BiA’s April 2005 order.
II. The BiA’s August 2007 Order
We review the BiA’s denial of a motion to reopen for abuse of discretion. *501Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir.2006)(per curiam). Where 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 abuse its discretion in denying Zheng’s motion to reopen because she failed to demonstrate her 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). We have previously reviewed the BIA’s consideration of evidence similar to that which Zheng submitted and have found no error in its conclusion that such evidence is insufficient to establish either material changed country conditions or an objectively reasonable fear of persecution. See Jian Htii 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”). Nothing in the record compels us to conclude, as Zheng argues, that the BIA ignored the evidence she submitted or the arguments she made, evidence and arguments the BIA is asked to consider time and again. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 337 n. 17 (2d Cir.2006). Finally, we decline Zheng’s request to remand for the agency to consider evidence that was not in the administrative record. See Xiao Xing Ni v. Gonzales, 494 F.3d 260, 269 (2d Cir.2007); see also 8 U.S.C. § 1252(b)(4)(A).
For the foregoing reasons, the petition for review is DISMISSED, in part, and DENIED, in part. 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
Substantially for the reasons stated in the District Court’s Opinion and Order dated November 4, 2008, 594 F.Supp.2d 334, and Memorandum and Order dated January 28, 2009, 2009 WL 311362, we conclude that the defendant’s motion for judgment on the pleadings was properly granted. Accordingly, we AFFIRM the judgment of the District Court.
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*525SUMMARY ORDER
Appellants, three members of a class that settled a securities fraud action for $750 million, object to the district court’s award of attorneys’ fees to appellees in the amount of 16% of the common fund’s recovery and $3,314,399.90 in expenses. We review the form and content of the notice given to class members, see Masters v. Wilhelmina Model Agency, Inc., 473 F.3d 423, 438 (2d Cir.2007), and the reasonableness of the fee award, see Goldberger v. Integrated Res., Inc., 209 F.3d 43, 47-48 (2d Cir.2000), for abuse of discretion, deferring to the “district court, which is intimately familiar with the nuances of the ease,” In re Bolar Pharm. Co. Sec. Litig., 966 F.2d 731, 732 (2d Cir.1992). In doing so, 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. Notice to the Class
Appellants submit that notice of the proposed fee award was not “directed to class members in a reasonable manner,” Fed.R.Civ.P. 23(h)(1), because the notice did not include the date of appellees’ motion for attorneys’ fees or indicate how class members could access the motion document. This argument reduces to a challenge to the form and content of the notice, which we review for abuse of discretion, see Masters v. Wilhelmina Model Agency, Inc., 473 F.3d at 438, and we detect none here.
The notice clearly states that “Plaintiffs’ Counsel are moving the Court to award attorneys’ fees not to exceed twenty percent (20%) of the Gross Settlement Fund, and for reimbursement of expenses incurred in connection with the prosecution of this Action in the approximate amount of five million dollars ($5,000,000).”1 Notice of Pendency of Class Action and Proposed Settlement, Motion for Attorneys’ Fees and Settlement Fairness Hearing at 3. The notice also informed class members as follows: “[Y]ou can object to ... the application by Plaintiffs’ Co-Lead Counsel for an award of fees and expenses. You may write the Court setting out your objection.” Id. at 14. The notice provided the addresses of the court and all counsel, so that class members could appropriately serve their objections, and it informed class members of the fairness hearing, at which they could appear to express their disapproval. That many class members— not just the three appellants—submitted objections to the court confirms that the notice was reasonably directed to class members as required by Rule 23.
2. Reasonableness of Fee
a. Contract Attorney Time
Appellants submit that the fee award of $3,314,399.90 was unreasonable because the district court should not have included contract attorney time in its “lodestar” calculation.2 In fact, the district court did *526not employ the lodestar method. Rather, it used the percentage method, which considers “less objective” factors to determine a fair fee as a percentage of the common fund’s recovery. See Goldberger v. Integrated Res., Inc., 209 F.3d at 47. We identify no abuse of discretion in the district court’s thorough application of these factors. See Carlson v. Xerox Corp., 596 F.Supp.2d 400 (D.Conn.2009).
Thus, appellants challenge only the district court’s lodestar cross check of its percentage fee determination. See, e.g., Goldberger v. Integrated Res., Inc., 209 F.3d at 50 (“[W]e encourage the practice of requiring documentation of hours as a ‘cross check’ on the reasonableness of the requested percentage.”). Here, the district court reduced the percentage fee award from the requested 20% to 16% based on its Goldberger analysis. In undertaking the lodestar cross check, the court concluded that “[t]he only argument against [the 1.25 multiplier imposed by the court, as opposed to the 1.56 multiplier counsel requested] is that it is simply too low.” Carlson v. Xerox Corp., 596 F.Supp.2d at 413. The district court noted that, had it made a 90% reduction in contract attorney time in its lodestar calculation, the resulting multiplier would be 3.59, still below the 3.6 average and in line with the 3.1 median for similar cases. Thus, even if we were to accept appellants’ argument that contract attorney time should be counted as an expense rather than as part of the lodestar calculation—a theory open to debate, see In re Enron Corp. Sec. Deriv. & “ERISA ” Litig., 586 F.Supp.2d 732, 782-83 (S.D.Tex.2008); In re Tyco Int’l, Ltd. Multidistrict Litig., 535 F.Supp.2d 249, 272 (D.N.H.2007)—we could not conclude that the fee awarded in this case is unreasonable.
b. Reasonable Paying Client
Appellants also urge us to set aside the fee because it exceeds the amount a reasonable client would be willing to pay. Cf. Arbor Hill Concerned Citizens Neighborhood Ass’n v. County of Albany, 522 F.3d 182, 190 (2d Cir.2008). We are not persuaded. Unlike in the context of fee-shifting statutes, which we examined in Arbor Hill, attorneys’ fees are awarded in common fund cases in order to “prevent[] unjust enrichment of those benefitting from a lawsuit without contributing to its cost.” Goldberger v. Integrated Res., Inc., 209 F.3d at 47. Thus, we have said that attorneys who create a fund are “entitled to a reasonable fee—set by the court—to be taken from the fund.” Id.; see also In re Agent Orange Prod. Liab. Litig., 818 F.2d 216, 222 (2d Cir.1987) (“[A]n attorney who creates a fund for the benefit of a class should receive compensation from the fund for his efforts.”). This fee does not necessarily approximate what a client would pay; rather, it must reflect “the actual effort made by the attorney to benefit the class.” Central States Se. and Sw. Areas Health & Welfare Fund v. MerckMedco Managed Care, LLC, 504 F.3d 229, 249 (2d Cir.2007) (internal quotation marks omitted). Because the district court properly considered the relevant factors, see Goldberger v. Integrated Res., Inc., 209 F.3d at 50, and reached a reasonable conclusion within its discretion, we will not disturb its judgment.
*527We have considered appellants’ other arguments and conclude that they lack merit. Accordingly, we AFFIRM the judgment of the district court.
. Appellants assert that "[t]he phrase ‘not to exceed [twenty percent (20%)],' in isolation, is meaningless, and does not permit any class member to make an informed evaluation of the fee request or to draft an effective opposition to it.” Appellants' Br. at 9. We do not decide whether this proposition is true in the abstract because the notice in this case did place the 20% figure in context by (1) calculating the proposed fee on a per-share basis, (2) explaining the work attorneys performed, and (3) clarifying the customary practice in similar class actions. In this regard, appellees' actual motion for fees was less detailed than the notice to class members, because it sought an award of 20% of the settlement and reimbursement for expenses without any additional explanation.
. The lodestar method calculates fees as “the product of the attorney’s usual hourly rate and the number of hours worked.” Arbor Hill Concerned Citizens Neighborhood Ass'n v. *526County of Albany, 522 F.3d 182, 186 (2d Cir.2008). We have cautioned that "[t]he meaning of the term 'lodestar' has shifted over time, and its value as a metaphor has deteriorated to the point of unhelpfulness,” because even courts that choose to employ the lodestar method must still weigh various equitable factors to arrive at a "presumptively reasonable fee.” Id. at 190.
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SUMMARY ORDER
Petitioner, Wen Fang Wang, a native and citizen of the People’s Republic of China, seeks review of a March 27, 2008 order of the BIA denying her motion to reopen her removal proceedings. In re Wen Fang Wang, No. A 074 857 411 (B.I.A. Mar. 27, 2008). We assume the parties’ familiarity with the underlying facts and procedural history of the case.
We review the BIA’s denial of a motion to reopen for abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir.2006). Where 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).
We find that the BIA did not err in denying Wang’s untimely motion to reopen. 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, the deadline may be equitably tolled to accommodate claims of ineffective assistance of counsel, so long as the movant has exercised “due diligence” in vindicating his or her rights. See Cekic v. INS, 435 F.3d 167, 171 (2d Cir.2006).
I. Ineffective Assistance of Counsel
We find no error in the BIA’s conclusion that Wang failed to exercise due diligence in pursuing her ineffective assistance of counsel claim. See icl. In her motion, Wang asserted that she was *562unaware that she had been ordered removed in absentia, that her prior attorney had filed in 2001 a motion to reopen in an effort to rescind that order, or that he had filed an appeal of the Immigration Judge’s denial of that motion. The BIA did not abuse its discretion in rejecting that assertion where Wang submitted a signed affidavit in support of the 2001 motion and signed the notice of entry of appearance her attorney filed with the BIA on appeal. Therefore, as the BIA properly found, Wang failed to exercise due diligence in pursuing her ineffective assistance of counsel claim where she knew of her in absentia order, the motion, and the appeal by at least May 2001, and provided no explanation for her seven-year delay in filing her motion to reopen. See Rashid v. Mukasey, 533 F.3d 127, 132 (2d Cir.2008) (finding no exercise of due diligence where fourteen months elapsed from the time the petitioner knew or should have known of the alleged ineffective assistance). Wang asserts before this Court that she did not sign the affidavit and notice of appearance and that they were fraudulently prepared by her prior attorney. However, because she made no such claim before the BIA, we decline to consider her argument. Steevenez v. Gonzales, 476 F.3d 114, 117 (2d Cir.2007) (“To preserve an issue for judicial review, the petitioner must first raise it with specificity before the BIA.”); see also 8 U.S.C. § 1252(b)(4)(A) (stating that “the court of appeals shall decide the petition only on the administrative record on which the order of removal is based”).
II. Changed Country Conditions
Additionally, substantial evidence supports the BIA’s finding that Wang failed to demonstrate changed country conditions excusing the untimely filing of . her motion. See 8 U.S.C. 1229a (c)(7)(C)(ii); Jian Hui Shao, 546 F.3d at 169. The BIA based its conclusion that Wang had not demonstrated changed country conditions on the fact that it had already considered many of the documents Wang submitted and concluded that such evidence did not show a material change in the family planning policy of the Fujian Province. This was entirely proper. We have previously reviewed the BIA’s consideration of evidence similar to that which Wang submitted and have found no error in its conclusion that such evidence was insufficient to establish material changed country conditions or an objectively reasonable fear of persecution. See Jian Hui Shao, 546 F.3d at 169-72 (concluding, in a case where similar evidence was submitted, that the BIA had pointed to substantial evidence raising doubts that the petitioner would be persecuted, and 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”). Nothing in the record compels us to conclude that the BIA ignored the evidence Wang submitted or the arguments she made, evidence and arguments the BIA is asked to consider time and again. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 338 n. 17 (2d Cir.2006). Moreover, the BIA did not abuse its discretion in declining to accord significant weight to the affidavit of Wang’s cousin or the village notice because she did not provide the original documents. See id. at 342 (finding that the weight afforded to the applicant’s evidence in immigration proceedings lies largely within the discretion of the agency).
Finally, the BIA’s determination that Wang was ineligible to file a successive asylum application was not in error. See *563Yuen Jin v. Mukasey, 538 F.3d 143, 156, 158-59 (2d Cir.2008).**
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
We note that Wang claims that she married a U.S. citizen, that her U.S. citizen husband filed a visa petition on her behalf, and that this petition was approved in 2003, and therefore she is eligible for adjustment of status. The BIA did not address this claim because Wang did not offer any evidence in support of it or submit an application for adjustment of status. We do not speak to Wang’s eligibility for adjustment of status based on her marriage.
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*567
SUMMARY ORDER
Derrick Coleman appeals from the judgment of the district court granting summary judgment to defendants Reginald Sutton and Tamela Welburn. Coleman alleges that defendants violated his First Amendment rights by retaliating against him for raising oral complaints regarding the medical care they provided him. We assume the parties’ familiarity with the underlying facts, the procedural history, and the issues presented for review.
We affirm for substantially the reasons stated in the district court’s opinion. See Coleman v. Sutton, 530 F.Supp.2d 451 (W.D.N.Y.2008).
Finding no merit in Coleman’s remaining arguments, we hereby AFFIRM the judgment of the district court.
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OPINION
PER CURIAM.
Shawn A. Lockett, Sr., a Pennsylvania state inmate, filed this civil rights action under 42 U.S.C. § 1983 against Dominick DeRose, the Warden at Dauphin County Prison, asserting several violations of his constitutional rights.1 Lockett filed his complaint on August 18, 2008, in the Dauphin County Court of Common Pleas. The state court transferred the action to the United States District Court for the Middle District of Pennsylvania, where it was entered on the docket on September 8, 2008.
The District Court granted Lockett leave to proceed informa pauperis. After service of the complaint, Warden DeRose filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), arguing, inter alia, that Lockett, by his own admission in the complaint, did not exhaust administrative remedies through the prison grievance process prior to filing suit, as required under 42 U.S.C. § 1997e(a).2 Lockett responded by arguing that he “did put in grievances” but had “no response] back from the warden.” He further contended that all of his belongings were confiscated after June 16, 2008, “so th[ere] was no way ... to follow up -with the grievances ... put in” because he was “without paper or anything to write with.”
The District Court granted the motion to dismiss. It noted that Lockett signed the complaint on July 28, 2009, and that it was clear from the face of the complaint that Lockett did not exhaust the grievance process prior to that date. The District Court rejected Lockett’s contention that he could not exhaust due to a lack of paper or pen, observing that this contention is inconsistent with the factual allegations set forth in the complaint. As averred in the complaint, Lockett’s belongings were confiscated following a June 16, 2008, incident, but were returned on July 10, 2008. Lockett received a write up sometime after the June 16 incident, and he was able to appeal that write up to Warden DeRose, who responded to the appeal before Lockett filed his complaint. The District Court noted that these factual allegations under*584mine Lockett’s subsequent contention that Warden DeRose had failed to respond to his grievances, or that Lockett was unable to “follow up with the grievances ... put in.” Accordingly, the District Court dismissed Lockett’s complaint, without prejudice, for failure to exhaust available administrative remedies prior to filing suit.
Lockett timely filed a motion for reconsideration, to which he attached copies of: (i) a grievance response dated August 19, 2008, from the Commissioner of the Prison Board of Inspectors, advising Lockett that a grievance he had filed was denied, and that he could appeal further to the full Prison Board; and (ii) a grievance response dated September 10, 2008, from the Prison Board Solicitor, advising that the Prison Board had denied Lockett’s appeal, and that Lockett could appeal further to the Dauphin County Solicitor. Lockett did not submit evidence of an appeal to the Dauphin County Solicitor, nor did he claim to have pursued such an appeal.
The District Court denied reconsideration. It explained that, even if it is assumed that Lockett filed an appeal to the Dauphin County Solicitor and completed the grievance process, his exhaustion of administrative remedies occurred only after the filing of his complaint. Because the Prison Litigation Reform Act (“PLRA”) requires a prisoner to exhaust before filing suit, Lockett did not satisfy the exhaustion requirement.
Lockett timely filed this appeal, and he has been granted leave to proceed in for-ma pauperis. This Coui’t has appellate jurisdiction under 28 U.S.C. § 1291. Because Lockett’s appeal lacks an arguable basis in law or fact, we will dismiss it pursuant to 28 U.S.C. § 1915(e)(2)(B).
As the District Court observed, the PLRA provides that an inmate must refrain from bringing suit “until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). “[T]he PLRA’s exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong.” Porter v. Nussle, 534 U.S. 516, 532, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002). Proper exhaustion requires that an inmate proceed through all available steps in the administrative review process, and that the inmate do so in accordance with established deadlines and procedural rules so that the reviewing body can addresses the issues raised. See Woodford v. Ngo, 548 U.S. 81, 90, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006). Courts have recognized that an inmate cannot satisfy the PLRA by exhausting administrative remedies after filing suit. See, e.g., Johnson v. Jones, 340 F.3d 624, 627 (8th Cir.2003) (“[I]n considering motions to dismiss for failure to exhaust under section 1997e(a), the district court must look to the time of filing, not the time the district court is rendering its decision, to determine if exhaustion has occurred. If exhaustion was not completed at the time of filing, dismissal is mandatory.”).
Here, Lockett dated his complaint July 28, 2008, it was filed in state court on August 18, 2008, and it was entered on the District Court’s docket on September 8, 2008. Assuming arguendo that September 8 reflects the date on which Lockett filed suit, it is clear from Lockett’s own representations and submissions that he did not complete the administrative review process prior to that date. Lockett received an intermediate-level response to his grievance from the Prison Board Solicitor on September 10. Assuming that Lockett pursued the next level in the administrative process through an appeal to the Dauphin County Solicitor, that appeal necessarily occurred after he had filed suit in *585federal court. Accordingly, the District Court properly granted the motion to dismiss and dismissed the complaint without prejudice for failure to comply with § 1997e(a).
For these reasons, we will dismiss the appeal pursuant to § 1915(e)(2)(B).
. Lockett sought damages and other relief based on, inter alia, an alleged denial of adequate medical care; denial of sanitary housing conditions; denial of access to the courts, to church services, to mail, and to the law library; a challenge to his placement in lock-down status; a challenge to receipt of a misconduct report; and prison officials' alleged use of excessive force to quell a disturbance.
. Lockett averred in the complaint that there is a grievance procedure available at Dauphin County Prison, that he filed a grievance concerning the facts relating to this complaint, but that he did not complete the grievance process before filing suit.
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OPINION
PER CURIAM.
Oleg Georgievich Amirov, a thirty-one-year-old native and citizen of Russia, petitions for review of a decision of the Board of Immigration Appeals (“BIA”) rejecting his claim for relief under the Convention Against Torture (“CAT”). We will grant the government’s motion for summary affirmance, which Amirov has not opposed, and deny the petition for review.
In 1997, Amirov was granted derivative asylee status in the United States in connection with his parents’ asylum application. That same year, he was convicted in a New York state court of, among other things, third-degree assault, and was sentenced to five years of probation. In 2007, Amirov was convicted in the United States District Court for the Northern District of Texas of possession with intent to distribute 100 kilograms or more of marijuana, and aiding and abetting; he was sentenced to sixty months in prison. In 2008, the government commenced removal proceedings, charging Amirov as removable on several grounds, including the commission of a crime involving moral turpitude and a controlled substance offense. Amirov conceded his removability before the Immigration Judge (“IJ”) and filed an application for deferral of removal under the CAT, claiming that he would likely be tortured in Russia because he is Jewish.
The IJ accepted the credibility of Amirov’s testimony, but denied relief upon consideration of the record evidence. The IJ concluded that Amirov had failed to show that it is more likely than not that the Russian government will act with a specific intent to torture him, or acquiesce to his torture. While the IJ found evidence that the Russian government may be unable or unwilling to protect Jews from acts of harassment and persecution, and while the IJ was -willing to presume that Amirov would be detained for questioning by immigration authorities upon his return to Russia, the IJ found no record evidence that Amirov is likely to be singled out for torture.
The BIA dismissed Amirov’s appeal on the basis of the IJ’s decision, supplemented with an analysis of its own. The BIA agreed that Amirov failed to establish that it is more likely than not that he will be tortured, explaining that, although there is evidence of anti-Semitism, harassment, and violence against Jews (i.e., evidence of persecution), Amirov did not present evi*589dence that the Russian government is involved in the systematic identification and torture of Jews. The BIA noted record evidence that there are anti-Semitic elements in Russian society, and that the Russian government has displayed an unwillingness to fully prosecute hate crimes, but it observed that Amirov cannot support a CAT claim merely by stringing together suppositions about what will happen upon his return. Given the “number and speculative nature” of the suppositions supporting Amirov’s claim, and the lack of evidence of pervasive and systematic torture of Jews, the BIA held that Amirov’s claim for CAT relief must fail. The BIA noted that Amirov did not show that violence in Russia against Jews is severe enough to qualify as torture, or is so pervasive as to establish a probability that Amirov would be singled out for torture with government acquiescence.
Amirov timely filed his petition for review, and he has moved for a stay of removal pending this Court’s review. The government opposes a stay and has moved for a summary disposition on the merits of the petition for review. Amirov, who is represented by counsel, has not filed a response in opposition to the motion for summary disposition. Because we conclude that Amirov’s petition for review presents “no substantial question,” 3d Cir. I.O.P. Ch. 10.6, we will grant the government’s motion and deny the petition for review.1
An alien seeking CAT relief must demonstrate “that it is ‘more likely than not’ that he or she will be tortured.” Pierre v. Att’y Gen., 528 F.3d 180, 186 (3d Cir.2008) (en banc). “In order to constitute torture, an act must be specifically intended to inflict severe physical or mental pain or suffering.” Id. That act must be “ ‘inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.’ ” Id. at 189 (quoting 8 C.F.R. § 208.18(a)(1)). It is not enough for public officials to be “willfully blind” to torturous acts; the officials must “have the goal or purpose of inflicting severe pain or suffering.” Id. at 190.
After a review of the full administrative record, we find no room to question the IJ and BIA’s stated reasons for denying CAT relief. At most, the record establishes the possibility that Amirov will suffer acts of persecution in Russia as a Jew. But as the IJ observed, the question raised by Amirov’s request for a deferral of removal under the CAT is not whether he will face persecution, but whether he will be singled out for torture. The record does not compel a conclusion contrary to the determination by the IJ and BIA that Amirov has failed to show that torture is more likely than not to occur, or, moreover, that any torturous act would be inflicted by or with the acquiescence of Russian officials. While Amirov presented evidence of violence directed against Jews in Russia, the record does not compel a conclusion that such violence amounts to a form of torture, *590or that it is so pervasive as to establish a probability that Amirov himself would be tortured.
For these reasons, we will grant the government’s unopposed motion for summary action and deny the petition for review. In light of this disposition, we also deny Amirov’s motion for a stay of removal pending review.
. We have jurisdiction under 8 U.S.C. § 1252(a). Where, as here, the BIA issues a decision that both adopts and supplements the IJ’s reasoning, this Court has jurisdiction to review the decisions of both the IJ and BIA. See, e.g., Xie v. Ashcroft, 359 F.3d 239, 242 (3d Cir.2004). Factual determinations underlying the denial of a CAT claim are reviewed under the substantial evidence standard, which means that this Court will not disturb those determinations if they are supported by reasonable, substantial, and probative evidence on the record considered as a whole. Tarrawally v. Ashcroft, 338 F.3d 180, 184 (3d Cir.2003). We regard such determinations as conclusive unless the record not only supports a contrary conclusion, but compels it. Abdille v. Ashcroft, 242 F.3d 477, 483-84 (3d Cir.2001).
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OPINION
SMITH, Circuit Judge.
Connie Palfrey appeals from the District Court’s entry of summary judgment against her and in favor of all Defendants. We will affirm.
I.
Because we write only for the benefit of the parties, we presume familiarity with the facts and recite them only briefly. Connie Palfrey was employed as a math teacher for Jefferson-Morgan School District (“JMSD”). She also held the ancillary position of computer coordinator. In April of 1999, Palfrey entered into a three-year employment contract to fill the new full-time position of technology administrator. Her contract was renewed in 2002 for another three-year term. In June of 2005, a majority of the members of the Board of JMSD voted not to renew her contract, and it expired according to its terms in August of that year.
Defendant Charles Rembold was hired by the Board of JMSD to be the Superintendent in August of 2001. At that time it *592was public knowledge that he was under investigation by the Pennsylvania Ethics Commission. On March 3, 2005, during Rembold’s employment with JMSD, the Ethics Commission contacted him to inform him that he was being investigated a second time. Rembold tendered his resignation to the Board that month, to be effective in August of 2005. In the interim, Rembold worked a greatly reduced schedule and used up his available leave time.
As part of its investigation, the Ethics Commission interviewed several JMSD employees and Board members, including some of the individual Defendants. Palfrey became aware that one of her subordinates was going to deliver the hard drive from Rembold’s computer to the Ethics Commission. Palfrey contacted the Ethics Commission in late March to arrange instead to turn over the hard drive herself. Palfrey was then subpoenaed to testify and did testify before the Ethics Commission in April of 2005.
At a Board meeting in May of 2005, Rembold informed the Board that his office had been broken into and that a document had been stolen. He believed the document was sent to the Ethics Commission. The record contains sufficient facts to establish, for summary judgment purposes, that Rembold informed the Board of his belief that Palfrey was responsible for these acts.
On June 2, 2005, Palfrey received a form letter over the stamped signature of Rem-bold informing her that her contract was being amended and would be available for her review upon completion. At a regularly scheduled Board meeting on June 22, 2005, the Board met in an executive session. Though Rembold was ex officio a non-voting member of the Board, he did not attend this meeting because he was hospitalized at the time. A majority of the Board voted not to renew Palfrey’s contract. Those members who voted in favor of renewing it pressed the other Board members for the reasons for their votes, but none were given. At the Board’s direction, JMSD’s solicitor sent a letter to Palfrey on June 27 informing her that her contract would not be renewed.
Palfrey filed this action in the United States District Court for the Western District of Pennsylvania asserting the following claims: First Amendment retaliation, violation of the Pennsylvania Whistleblower Act, breach of contract, wrongful discharge, and a claim under the Pennsylvania Public Official and Employee Ethics Act. Palfrey withdrew her whistleblower claim, and the District Court granted summary judgment in favor of all Defendants on her First Amendment claim. It then declined to exercise supplemental jurisdiction over the remaining state law claims and dismissed them pursuant to 28 U.S.C. § 1367(c)(3). Thus, only the First Amendment retaliation claim is before us. The District Court had jurisdiction over this case pursuant to 28 U.S.C. §§ 1331 and 1367. We have jurisdiction pursuant to 28 U.S.C. § 1291.
II.
We “exercise plenary review over the District Court’s grant of summary judgment and apply the same standard that the District Court should have applied.” Shuman ex rel Shertzer v. Penn Manor Sch. Dist., 422 F.3d 141, 146 (3d Cir.2005) (quotation omitted). Summary judgment is appropriate “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.” Fed.R.Civ.P. 56(c). The facts must be viewed in the light most favorable to the non-moving party and all *593reasonable inferences from the evidence must be drawn in her favor. Conopco, Inc. v. United States, 572 F.3d 162, 165 (3d Cir.2009).
III.
To succeed on a claim of retaliation for exercising First Amendment rights, a plaintiff must establish that she engaged in protected activity and that the activity was a substantial or motivating factor in any retaliatory action taken against her. Ambrose v. Twp. of Robinson, 303 F.3d 488, 493 (3d Cir.2002). “It is only intuitive that for protected conduct to be a substantial or motivating factor in a decision, the decisionmakers must be aware of the protected conduct.” Id. (citation omitted).
The parties do not dispute that Palfrey’s testimony and conversations with the Ethics Commission constitute activity protected by the First Amendment. However, Palfrey’s accusations that the Board members knew about this activity is a product of her own speculation. She testified that she believed her subordinate informed a Board member of her protected activity and then surmised that the rest of the Board was then so informed. Every Defendant Board member, however, denied having knowledge of her protected activity prior to their decision not to renew her contract. Palfrey only surmises that the Defendant Board members knew of her protected activity and does not rebut these denials. Accordingly, she has failed to offer any evidence on this question.1
Palfrey asserts other arguments in an effort to establish a genuine issue of material fact as to whether the Defendants had knowledge of her protected activity. First, they had knowledge of her breaking into Rembold’s office and stealing a document to send to the Ethics Commission. Second, Rembold had knowledge of all her activity, including testifying, and thus the Board had imputed knowledge under the so-called “cat’s paw” theory. Finally, circumstantial evidence, namely temporal proximity, shows knowledge.
First, there is no doubt that Rem-bold was aware—or at least believed—that someone broke into his office and stole a document. We view the record in the same manner as the District Court and hold that the undisputed facts establish that the Board members knew about this and learned that it was Palfrey. However, we are not convinced that breaking into a school superintendent’s locked office to steal a document and send it to the Ethics Commission is activity protected by the First Amendment. As we stated in Ambrose, quoting the District Court’s jury *594instruction with approval, “unauthorized entry into closed administrative officers [sic] for the purpose of copying records is not activity protected by the First Amendment.” Ambrose, 303 F.3d at 496.
Palfrey next argues that the Court should impute Rembold’s knowledge of her protected activity to the Board. The cat’s paw theory is a method by which a plaintiff can establish liability against a decisionmaker if the decisionmaker, while not himself harboring any discriminatory animus toward the plaintiff, nevertheless is under the control or influence of one who does. See Delli Santi v. CNA Ins. Cos., 88 F.3d 192, 200 & n. 11 (3d Cir.1996). Palfrey cannot succeed on this argument, though, because as discussed by the District Court, she cannot demonstrate that Rembold had knowledge of her protected activity such that it can be imputed to the Board.
Finally, circumstantial evidence of a temporal proximity between protected activity and an adverse employment action is not enough to establish knowledge or even a genuine question of knowledge of the protected activity. To be sure, the Defendant Board members’ denials of their own knowledge alone is not fatal to her case. Ambrose, 303 F.3d at 493. However, Palfrey must come forward with evidence, other than circumstantial evidence consisting of temporal proximity, that the Defendants knew of her testimony and conversations prior to the vote not to renew her contract. Id. at 494. She has not done this.2
We conclude that Palfrey has failed to point to a genuine issue of material fact as to whether Defendants knew she engaged in protected activity. The District Court’s conclusion to this effect was correct, and we will affirm.
. Palfrey testified that one of her subordinates had told her that he and another subordinate had advised Board member Burich of her testimony before the Ethics Commission. Palfrey also testified that Board member Pochron had told her that Rembold had told the entire Board at its May meeting that Palfrey had been subpoenaed and "was working with the Ethics Commission to discredit him.” While it is true that hearsay evidence in a deposition submitted in opposition to a motion for summary judgment may be considered if the out-of-court declarant could later present that evidence through direct testimony, i.e., in a form that would be admissible at trial, J.F. Feeser, Inc. v. Serv-A-Portion, Inc., 909 F.2d 1524, 1542 (3d Cir.1990); Williams v. Borough of West Chester, 891 F.2d 458, 466 n. 12 (3d Cir.1989), that proposition does not aid Palfrey here. With respect to Burich, even if the subordinate testified at trial and corroborated Palfrey's deposition testimony, there is no evidence, hearsay or otherwise, that Burich passed the information on to any other Board member. With respect to Pochron, the record affirmatively establishes that he is not in a position to corroborate Palfrey's deposition testimony. He testified at his deposition concerning the May meeting that Rembold spoke only of the breaking and entering of his office.
. We note the following. First, the letter to Palfrey dated June 2, 2005, did not state JMSD’s intent to renew her contract. It only informed her, in a form letter, that her contract was being amended. Second, we do not consider relevant the fact that Defendants do not each set forth the same reason for their individual votes not to renew her contract. Our cases, cited by Palfrey, concluding that inconsistencies in an employer’s articulated reasons are evidence that the reasons were not credible do not shed light on whether the Defendants knew of Palfrey’s protected conduct. Tomasso v. Boeing Co., 445 F.3d 702, 707-10 (3d Cir.2006) (concluding, after the plaintiff established a prima facie case, that various articulated reasons were pretext); Shellenberger v. Summit Bancorp, Inc., 318 F.3d 183, 190 (3d Cir.2003) (same); Brewer v. Quaker State Oil Refining Corp., 72 F.3d 326, 331-34 (3d Cir.1995) (same).
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OPINION OF THE COURT
HARDIMAN, Circuit Judge.
William and Maureen Anello appeal the District Court’s summary judgment in favor of the Indian River School District and Susan S. Bunting on the Anellos’ claims under the Individuals with Disabilities Education Act (IDEA). We will affirm, largely for the reasons explained in the District Court’s thorough opinion. Anello v. Indian River Sch. Dist., 2009 WL 304214, 2009 U.S. Dist. LEXIS 8896 (D.Del.2009).
I.
Because we write for the parties, who are familiar with the facts and procedural history, we recount only the aspects of the case that are essential to our decision. We have jurisdiction pursuant to 28 U.S.C. § 1291.
A.
The Anellos moved to the Indian River School District when their daughter G.A. was to begin third grade. Prior to her arrival, G.A. had been deemed eligible by the State of New York for instruction under § 504 of the Rehabilitation Act, 29 U.S.C. § 794, but ineligible for instruction under the IDEA. At the beginning of the 2003-2004 school year, Indian River and the Anellos determined that G.A. would remain on her § 504 plan and established classroom accommodations. In June 2004, Indian River determined that G.A had an IDEA-eligible learning disability in reading comprehension. Accordingly, the School District drafted an individualized education plan (IEP) to address G.A.’s disability and convened a meeting with the Anellos. Unsatisfied with the steps taken by Indian River, the Anellos placed G.A. in Lighthouse Christian School in August 2004.
In support of their IDEA claim, the Anellos assert Indian River: (1) failed to follow Delaware’s “child find” regulations; and (2) was on notice that G.A. needed an initial evaluation upon her arrival in the Fall of 2003.
School districts have a “child find” obligation to ensure all children with disabilities are “identified, located, and evaluated” for eligibility for special education and related services. 20 U.S.C. § 1412(a)(3)(A). Each state must establish regulations and procedures to discharge this duty. 34 C.F.R. § 300.111. In Delaware, the Department of Education created the Administrative Manual for Special Education Services (AMSES), which includes and is broader than the IDEA. Under AMSES, each school is required to create an instructional support team (1ST) to evaluate potentially eligible children. AMSES § 2.3. Significantly for purposes of this appeal, AMSES leaves the definition of 1ST up to each school district. Id. § 2.3.1.
The Anellos claim Indian River would have found G,A.’s disability earlier had it convened the required 1ST in September 2003. Indeed, the Anellos question whether Indian River ever convened an 1ST because it did not submit any documentation demonstrating the IST’s existence or listing the team members. Additionally, much of the testimony about the IST’s *597actions came from a special education teacher who was, admittedly, not a member of the 1ST.
The Anellos raise the 1ST issue for the first time on appeal, which renders it waived under our precedents. See Gleason v. Norwest Mortgage, Inc., 243 F.3d 130, 142 (3d Cir.2001) (“Generally, barring exceptional circumstances, like an intervening change in the law or the lack of representation by an attorney, this Court does not review issues raised for the first time at the appellate level.”). And, “[a]l-though we have discretion to review an argument not raised in the trial Court, we ordinarily refuse to do so.” Id.
The Anellos claim the issue is not waived because the District Court opinion is the first finding that G.A. had an 1ST, so there was no need to challenge it earlier. In our view, this is insufficient to avoid the waiver rule. Appellate review is especially inappropriate here because the Anellos essentially ask us to find, on an undeveloped record, that the 1ST either was inadequate or did not exist at all. See Norfolk Southern Ry. Co. v. Basell USA Inc., 512 F.3d 86, 97 (3d Cir.2008) (“A district court’s failure to consider an issue below does not necessarily preclude us from addressing it on appeal. However, it is only appropriate for us to do so ‘when the factual record is developed and the issues provide purely legal questions, upon which an appellate court exercises plenary review.’ In situations ‘where the resolution of an issue requires the exercise of discretion or fact finding ..., it is inappropriate and unwise for an appellate court to step in.’ ” (quoting Hudson United Bank v. LiTenda Mortgage Corp., 142 F.3d 151, 159 (3d Cir.1998))); see also Gass v. Virgin Islands Tele. Corp., 311 F.3d 237, 246 (3d Cir.2002) (the waiver rule “applies with added force where the timely raising of the issue would have permitted the parties to develop a factual record.” (quoting In re American Biomaterials Corp., 954 F.2d 919, 927-28 (3d Cir.1992))).
Finally, it is not entirely clear that the District Court assumed there was an 1ST; it only mentioned such a team when summarizing the Anellos’ argument. Anello, 2009 WL 304214, at *10, 2009 U.S. Dist. LEXIS 8896, at *29. The absence of any meaningful discussion of an 1ST in the District Court’s analysis is unsurprising because the legal significance of the IST’s existence was not raised below, which is the essence of waiver. Ross v. Hotel Employees & Restaurant Employees Int’l Union, 266 F.3d 236, 242-43 (3d Cir.2001) (waiver “seeks to insure that litigants have every opportunity to present their evidence in the forum designed to resolve factual disputes” (quoting Patterson v. Cuyler, 729 F.2d 925, 929 (3d Cir.1984))); see also In re Ins. Brokerage Antitrust Litig., 579 F.3d 241, 262 (3d Cir.2009) (“[T]he crucial question regarding waiver is whether defendants presented the argument with sufficient specificity to alert the district court.” (quoting Keenan v. City of Phila., 983 F.2d 459, 471 (3d Cir.1992))).
The Anellos also argue Indian River was on notice that G.A. should have been evaluated under the IDEA sooner because her § 504 plan was failing all year long, as shown by her failure on the standardized Delaware Student Testing Program (DSTP), her failing grades, and the school’s failure to modify the plan to adapt to those grades. The Anellos have already prevailed upon their claim that G.A. was entitled to an evaluation after they requested one on February 3, 2004. Anello, 2009 WL 304214, at *10-11, U.S. Dist. LEXIS 8896, at *34-35. Therefore, their § 504 argument is only relevant if it can establish that Indian River should have known before February 3, 2004 that G.A. needed an evaluation.
*598The evidence available as of February 8, 2004 does not establish that the § 504 plan had failed, let alone that Indian River violated the IDEA. As of that date, G.A.’s grades were improving in all subjects, including math, and the School District could not know she would later fail both the third grade and the DSTP. Furthermore, even taking G.A.’s ultimate failures into account, the District Court specifically found, as a matter of fact, that the § 504 plan did not fail. Our independent review of the record indicates that this was not clearly erroneous.
We also note the record establishes that the curriculum was heavily tailored to meet G.A.’s needs, even though some of those programs were also available to others. G.A.’s teacher provided extra support at every turn and talked with the Anellos whenever they had a concern, even giving them her home phone number. Indeed, the Anellos were so satisfied with this teacher that they pulled G.A. out of specialized programs tailored to her needs because they preferred her regular teacher.
For the foregoing reasons, we are unpersuaded by the Anellos’ “child find” claims.
B.
The Anellos next claim Indian River did not propose an adequate IEP for G.A. In Delaware, the School District has the burden of establishing that its IEP was adequate. 14 Del. C. § 3140.1
As a substantive matter, the IEP must be tailored to the student’s unique needs and “reasonably calculated to enable the child to receive [meaningful] educational benefits.” Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982); Ridgewood Bd. of Educ. v. N.E., 172 F.3d 238, 247 (3d Cir.1999). Procedurally, the IEP also must contain a statement of the child’s current level of performance and how her disability affects her performance. 20 U.S.C. § 1414(d)(1)(A). Finally, it must set measurable annual goals relating both to progress in the general curriculum and additional educational needs arising from her disability. Id. A procedural violation is actionable, however, only if it: (1) “impeded the child’s right to a free appropriate public education” (FAPE); (2) “significantly impeded the parents’ opportunity to participate in the decisionmaking process”; or (3) “caused a deprivation of educational benefits.” 20 U.S.C. § 1415(f)(3)(E).
The Anellos claim G.A.’s IEP was substantively deficient because it treats her as disabled only in reading comprehension, even though she failed third grade in math and was eligible for instruction in writing under § 504 of the Rehabilitation Act. Giving due deference to the administrative panel’s findings, P.P. v. West Chester Area Sch. Dist., 585 F.3d 727, 734-35 (3d Cir.2009), the District Court properly found that G.A. only had an IDEA disability in reading comprehension, not math or writing. The test for eligibility is a severe discrepancy between ability and achievement, AMSES § 4.8.3, and the school psychologist found a severe discrepancy only in reading comprehension.2 Furthermore, *599as the District Court noted, the IEP is adequate because in addition to addressing G.A.’s reading comprehension needs, it contains “significant provisions devoted to addressing G.A.’s non-qualifying areas of eoncern[,] including math reasoning.” Anello, 2009 WL 304214, at *12, 2009 U.S. Dist. LEXIS 8896, at *39.
The Anellos also make several procedural arguments. Their strongest argument is that the IEP does not adequately state G.A.’s present level of performance. Both the IDEA and the relevant federal regulations require that statement to include “how the child’s disability affects the child’s involvement and progress in the general education curriculum.” 20 U.S.C. § 1414(d)(l)(A)(i)(U; 34 C.F.R. § 300.320. The IEP in this case did not contain such a statement; it merely said that G.A.’s present performance level is “1.8 grade level.” Although this constitutes a procedural violation, the Anellos do not explain how it: (1) impeded G.A.’s right to a FAPÉ; (2) significantly impeded their opportunity to participate in the decisionmaking process; or (3) caused a deprivation of educational benefits. 20 U.S.C. § 1415(f)(3)(E). Because our own review of the record finds these circumstances lacking, we hold that it is not actionable.
The Anellos make additional claims of procedural error, but we find them unpersuasive. For example, they argue the IEP’s goal fails because it is not adequately explained. The only goal in the proposed IEP is for G.A to “read a third grade passage at a rate of 50-70 wpm with 0-5 errors and correctly answer 80-100% of comprehension questions.” Though one reading test placed G.A.’s reading level at grade 1.8, other tests placed it at 3.1 or higher. The Anellos claim the IEP should have explained the differences between the tests and why the 1.8 score was appropriate. But they do not cite any authority for requiring such an explanation and the fact that it would be preferable does not transform it into a requirement under the IDEA.
In sum, because the IEP was adequately drafted to provide G.A. with a FAPE, the Anellos are not entitled to reimbursement for tuition costs incurred when they sent her to a private school for the 2004-2005 school year. Lauren W. ex rel. Jean W. v. DeFlaminis, 480 F.3d 259, 276 (3d Cir.2007) (citing Florence County Sch. Dist. Four v. Carter ex rel. Carter, 510 U.S. 7, 15, 114 S.Ct. 361, 126 L.Ed.2d 284 (1993)).
III.
For the foregoing reasons, we will affirm the judgment of the District Court.
. The Anellos correctly argue that the District Court erred when it assigned the burden to them. Anello, 2009 WL 304214, at *8, 2009 U.S. Dist. LEXIS 8896, at *23-24. We still affirm, however, because we reach the same conclusion with the burden properly placed. See S.H. v. State-Operated Sch. Dist. of the City of Newark, 336 F.3d 260, 271 (3d Cir.2003).
. The school psychologist conducted extra testing in math and found G.A.'s scores within the average range.
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OPINION
SLOVITER, Circuit Judge.
I.
Peggy J. Morrison appeals from the District Court’s order affirming the denial by the Administrative Law Judge (“ALJ”) of Morrison’s application for Social Security Disability benefits.
II.
Judicial review is limited to determining whether there was substantial evidence to support the Commissioner’s decision. 42 U.S.C. § 405(g); Knepp v. Apfel, 204 F.3d 78, 83 (3d Cir.2000) (citing Plummer v. Apfel, 186 F.3d 422, 427 (3d Cir.1999)). Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Pierce v. Underwood, 487 U.S. 552, 564-65, 108 S.Ct. 2541, 101 L.Ed.2d 490 (1988). If the Commissioner’s findings of fact are supported by substantial evidence, such *601findings are binding. Knepp, 204 F.3d at 83.1
Because we write primarily for the parties, who are aware of the relevant facts, we discuss them only briefly. Morrison, who was forty-seven years old with a 12th grade education at the time of her application for disability benefits, is considered a “younger person” under the Social Security Administration (“SSA”) regulations. 20 C.F.R. § 404.1563(c). Her prior experience included work in food service, as a cashier, machine fastener, and hand packager. She was last employed on February 14, 2006, as a machine operator at a printing company.
She initially filed her SSA application with an onset date of February 15, 2006 but amended that to October 31, 2005, because of an unsuccessful work attempt in the interim. Morrison’s disability claim is directed primarily to her claim of back impairment which she contends meets or equals § 1.04 of the List of Impairments. If she were correct, it would qualify as a severe impairment.
Morrison first contends that the ALJ erred in failing to find that she had an impairment severe enough to meet the requirements of § 1.04C of the SSA’s Listing Impairments. Section 1.04C requires a documented diagnosis of lumbar spinal stenosis that results in an inability to ambulate effectively. 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 1.04C. Although the medical documentation shows that Morrison was diagnosed with lumbar spinal stenosis, the ALJ concluded that the impairment did not result in her inability to ambulate effectively, as defined by the regulations. See 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 1.00B2b(2).
The pertinent evaluation shows that Morrison had a negative straight leg-raising test, normal strength in lower extremities, and a normal range of motion. These observances are further supported by the notes made by Dr. Balint Balog stating that Morrison walked without an assistive device and could “heel walk and toe walk.” Tr. at 135. Dr. Balog also observed that Morrison had a negative straight leg-raising test, no atrophy in her lower extremities, no restricted hip rotation and no true neural impingement. Moreover, Dr. Barry B. Moore, Morrison’s treating physician, noted that Morrison had no weakness in walking. Thus, there was substantial medical evidence to support the ALJ’s finding that Morrison did not meet the requirements of § 1.04C.
Morrison next challenges the ALJ’s finding that her urinary incontinence was not a severe impairment because it did not significantly limit her from doing basic work activity. Morrison correctly argues that an impairment which precludes return to past relevant work is a severe impairment. See 20 C.F.R. § 404.1520(b)(c). However, the evidence shows that Morrison’s incontinence goes back to 2003, at a time when she was still performing past work. Moreover, no evidence exists to suggest that Morrison sought a medical evaluation from a urologist, even though she claimed she would do so. Also, in neither her testimony nor her application did Morrison describe any significant functional limitations due to incontinence, and she provided no evidence that this condition significantly limited her performance of basic activities. On appeal, Morrison contends that she requires close proximity to a bathroom yet she never produced any documentation verifying this. The burden of proof lies with Morrison at this step of *602the evaluation process, 20 C.F.R. § 404.1520(c), and her failure to provide documentation is thus fatal to her claim regarding urinary incontinence.
Third, Morrison argues that the ALJ erred in finding that she could perform a limited range of light or sedentary work. As she points out, the ALJ so found even though Dr. Moore limited her daily work activity to four hours a day, a limitation that would preclude her from substantial gainful activity. This was not error, however, because the reason for the ALJ’s failure to consider such evidence was that it came in the form of a letter from Dr. Moore written on June 20, 2007—almost two weeks after the ALJ had issued her final decision. Evidence that was not before the ALJ cannot be used to argue that the ALJ’s decision was not supported by substantial evidence. Jones v. Sullivan, 954 F.2d 125, 128 (3d Cir.1991). Furthermore, for the additional evidence to be considered after the hearing, it must satisfy 42 U.S.C. § 405(g), which requires Morrison to show that the evidence is new, material, and that there was good cause for failing to provide it prior to the ALJ hearing. Matthews v. Apfel, 239 F.3d 589, 594 (3d Cir.2001). Morrison has failed to show how Dr. Moore’s letter met these requirements.
Next, Morrison contends that the ALJ erred in two ways. First, by substituting her medical opinion for that of the treating physician, Dr. Moore, and, second, by accepting the opinion of Dr. Balog over that of Dr. Moore. However, the ALJ did not substitute her medical opinion for that of Dr. Moore. Instead, the ALJ simply made observations regarding the time of total incapacity after the surgery based on the entire medical record and Morrison’s testimony of her pain and limitations. Moreover, Morrison misinterprets Dr. Moore’s estimate that she would need approximately two years to recover neurological function to mean that she would be completely disabled and unable to work for that duration. The ALJ evaluated the post-surgical notes of Dr. Moore against Morrison’s complaint and considered the lack of additional diagnostic studies in concluding that Morrison was only incapacitated for about six weeks after surgery. Rather than being a substitution of the ALJ’s medical opinion, this is a finding that was supported by the weight of the evidence.'
Furthermore, we reject Morrison’s contention that the ALJ erred by accepting Dr. Balog’s assessment over that of her treating physician. The ALJ may consider the opinion of a source who has examined the claimant, and give more weight to a medical opinion that is supported by relevant evidence, such as medical signs or laboratory findings. 20 C.F.R. § 404.1527(d)(1), (d)(3). Nothing in the record, moreover, shows that the ALJ afforded more weight to Dr. Balog’s opinion or used it to discount Dr. Moore’s opinion. Accordingly, the ALJ properly considered all medical documentation, including Dr. Balog’s opinion, that was supported by medical evidence.
Finally, Morrison contends that the ALJ erred in failing to find her testimony credible in relating her limitations both before and after the surgery. The ALJ may not find an individual disabled based solely on his or her subjective complaints alone. 20 C.F.R. § 404.1529(a). Rather, those complaints must be supported by medical documentation to show that the individual has an impairment that could reasonably produce the alleged pain or symptoms. Id. The documentation that Dr. Moore provided, however, showed that Morrison did not have a nerve impingement or other source for the numbness in her toes and that she was able to walk without weakness. In light of the medical record, the ALJ did *603not err by determining that the evidence did not support Morrison’s testimony.
III.
After reviewing the record, we conclude that the District Court did not err in holding that the decision of the ALJ was supported by substantial evidence. We will therefore affirm the decision of the District Court.
. We have jurisdiction pursuant to 28 U.S.C. § 1291, from the final order issued by the District Court. The District Court had jurisdiction based on 42 U.S.C. §§ 401-33.
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11-05-2022
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*604OPINION
PER CURIAM.
Pro se appellant Assem Abulkhair challenges the District Court’s denial of his motion to reinstate an appeal. For the reasons below, we will vacate the District Court’s order and remand for further proceedings consistent with this opinion.
I.
In 2002, Abulkhair filed an action in the United States District Court for the District of New Jersey for review of the Social Security Administration’s (“SSA”) Appeals Council’s decision that he was ineligible for disability benefits. (D.NJ.CivA.. No. 02-1220.) On March 21, 2003, Abulkhair and the Commissioner executed a consent order for remand of the case under the fourth sentence of 42 U.S.C. § 405(g). Two days later, the District Court entered a judgment that remanded the matter to the SSA and dismissed the case. On remand, an administrative law judge (“ALJ”) held a supplemental hearing, and in 2004 the ALJ issued a new decision finding that Abulkhair was ineligible for benefits. Abulkhair sought review of that decision by the Appeals Council.1 On May 25, 2007, the Appeals Council issued a final decision adopting the ALJ’s 2004 decision.
Abulkhair then filed a new cause of action in the District Court seeking review of the May 25, 2007 Appeals Council’s decision. (D.N.J.Civ.A. No. 07-3276.) However, on July 26, 2007, the District Court terminated the action because it was substantially related to Abulkhair’s 2002 action. The July 26th order directed Abulkhair to seek reinstatement of his original appeal under Civil Action Number 02-1220.
Abulkhair did not appeal from the July 26th order, but on July 27, 2007, followed the District Court’s directive by filing a pro se motion to reinstate his appeal under Civil Action Numbei 02-1220. Abulkhair retained counsel; however, his attorney withdrew on November 15, 2007. On November 30, 2007, the District Court held a hearing regarding Abulkhair’s motion; Abulkhair did not attend the hearing, claiming that his attorney never told him about it. And on December 11, 2007, the District Court denied Abulkhair’s request to reinstate his appeal. The order stated, in part, that the District Court “had previously denied such a reopening and that such denial was proper and that no basis exists for either a reopening or a reconsideration of the prior decision.” The District Court further stated that it would not consider any additional submissions regarding the case.
Abulkhair now appeals from the December 11, 2007 order.
II.
We have jurisdiction to review the District Court’s December 11th order under 28 U.S.C. § 1291.
The District Court’s 2003 remand and dismissal of Abulkhair’s appeal from the Appeals Council’s 2002 decision was made pursuant to sentence four of 42 U.S.C. § 405(g). The remand thus “terminated the litigation with victory for [Abulkhair],” and the District Court relinquished jurisdiction. See Johnson v. Gonzales, 416 F.3d 205, 209 (3d Cir.2005) (citing Shalala v. Schaefer, 509 U.S. 292, 300-02, 113 S.Ct. 2625, 125 L.Ed.2d 239 (1993)).
*605On remand, the ALJ held a new hearing and issued a new decision, which the Appeals Council adopted on May 25, 2007. Under 42 U.S.C. § 405(g) and regulations, Abulkhair thus had sixty days after receiving notice of the decision to seek judicial review of the Appeals Council’s decision. See Flores v. Sullivan, 945 F.2d 109, 111 (5th Cir.1991); 20 C.F.R. § 422.210(c). Abulkhair filed a new civil action pursuant to Section 405(g) in the District Court on July 13, 2007, but the District Court terminated the case and ordered Abulkhair to file a motion to reinstate his 2002 appeal.2
Abulkhair followed the directive to file a motion to reinstate his appeal under Civil Action Number 02-1220. However, despite its caption, the substance of Abulkhair’s motion demonstrates that he was seeking review of the Appeals Council’s 2007 decision—i.e., he was not attempting to get a “second bite at the apple.” See Turner v. Evers, 726 F.2d 112, 113 (3d Cir.1984) (finding that the substance of the motion governs); see also Dluhos v. Strasberg, 321 F.3d 365, 369 (3d Cir.2003) (stating the general rule that courts are to liberally construe pro se litigants’ pleadings). We thus conclude that the District Court should have construed Abulkhair’s motion as seeking review of the 2007 decision rather than as a motion to reopen. Accordingly, we will vacate the District Court’s December 11, 2007 denial of Abulkhair’s motion.
Further, we note that Abulkhair’s July 27th filing was a timely appeal from the Appeals Council’s May 25th decision. The limitation period for seeking judicial review from the decision commenced when Abulkhair received notice of the Appeals Council’s decision, see Flores, 945 F.2d at 111; 20 C.F.R. § 422.210(c). The regulations establish a rebuttable conclusion that “the date of receipt of the notice of ... the decision of the Appeals Council shall be presumed to be five days after the date of such notice, unless there is a reasonable showing to the contrary.” 20 C.F.R. § 422.210(c). Because Abulkhair is thus presumed to have received notice of the Appeals Council’s decision on May 30th, his July 27th filing is timely under Section 405(g).3
For the foregoing reasons, we will vacate the District Court’s December 11, 2007 order and remand with instructions for the District Court to construe Abulkhair’s July 27th submission as a new civil action filed under 42 U.S.C. § 405(g).
. While the ALJ's 2004 decision was pending before the Appeals Council, Abulkhair filed a motion to reopen the original cause of action, which the District Court denied on April 11, 2005.
. The July 26th order is not before us and we make no decision as to whether it was proper.
. Even if Abulkhair’s July 27th filing was untimely under 42 U.S.C. § 405(g), we note that the time limitation is not jurisdictional and is subject to equitable tolling. See Fletcher v. Apfel, 210 F.3d 510, 513 (5th Cir.2000); Bowen v. City of New York, 476 U.S. 467, 480, 106 S.Ct. 2022, 90 L.Ed.2d 462 (1986).
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01-04-2023
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11-05-2022
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OPINION
PER CURIAM.
Gayane Grigoryan, citizen of Armenia, petitions for review of an order of the Board of Immigration Appeals (“BIA”). For the following reasons, we will grant the petition for review and remand for further proceedings consistent with this opinion.
I.
Grigoryan entered the United States in June 2001, and was later authorized to remain until May 2002. In February 2006, she applied for asylum, withholding of removal, and relief under the United Nations Convention Against Torture (“CAT”), claiming that she suffered past persecution, and feared persecution in the future, on account of her practice of Christianity as a Baptist. The next month, she was placed in removal proceedings for having overstayed her admission period. See Immigration and Nationality Act (“INA”) § 237(a)(1)(B) [8 U.S.C. § 1227(a)(1)(B) ]. She admitted the allegations in the Notice to Appear and conceded the charge of removability.
The Immigration Judge (“IJ”) denied Grigoryan’s application for asylum, noting that it was filed more than one year after her arrival in the United States. See IJ Oral Decision, 20-23. The IJ did not believe that there were extraordinary circumstances warranting waiver of the one-year deadline. See id. The IJ also denied Grigoryan’s application for withholding of removal, concluding that Grigoryan was not credible, and, alternatively, that she had not carried her burden of proof be*607cause she failed to provide adequate corroborative documentary evidence. See id. at 23-31. In particular, the IJ cited Grigoryan’s conflation of the practices of Jehovah’s Witnesses with those of Baptists, inconsistencies between her testimony and her asylum application, and her failure to provide evidence corroborating her affiliation with the Baptist church. See id. Finally, the IJ concluded that Grigoryan failed to establish that she was likely to be tortured in Armenia. See id. at 31.
The BIA dismissed Grigoryan’s appeal, agreeing that the asylum application was time-barred. The Board further concluded that Grigoryan failed to demonstrate her eligibility for other relief, noting that the IJ “identified specific, cogent reasons in support of the adverse credibility finding, for which the respondent has provided no reasonable explanation.” Grigoryan filed a petition for review of the BIA’s decision.
II.
We have jurisdiction under INA § 242(a)(1) [8 U.S.C. § 1252(a)(1) j.1 Because the BIA substantially relied on the IJ’s determinations, we consider both the IJ’s and the BIA’s opinions. See Kaita v. Att’y Gen., 522 F.3d 288, 296 (3d Cir.2008). We review the adverse credibility determination for substantial evidence. See Butt v. Gonzales, 429 F.3d 430, 433 (3d Cir.2005). Under this standard, the adverse credibility determinations will be upheld if they are “supported by reasonable, substantial and probative evidence on the record considered as a whole.” Tarrawally v. Ashcroft, 338 F.3d 180, 184 (3d Cir.2003) (internal quotation marks omitted). They may be overturned only if “any reasonable adjudicator would be compelled to conclude to the contrary.” INA § 242(b)(4)(B) [8 U.S.C. § 1252(b)(4)(B)], Adverse credibility determinations must be “supported by specific cogent reasons.”2 Gao v. Ashcroft, 299 F.3d 266, 276 (3d Cir.2002). Furthermore, we must uphold a determination regarding the availability of corroborating evidence unless “a reasonable trier of fact is compelled to conclude that such corroborating evidence is unavailable.” INA § 242(b)(4); see also Sandie v. Att’y Gen., 562 F.3d 246, 252 (3d Cir.2009).
III.
The IJ first concluded that Grigoryan “confused the Baptist religion with the Jehovah Witness religion.” IJ Oral Decision, 23. As examples, the IJ cited Grigoryan’s refusal to take an oath, her explanation that she “witnesses to other people,” and her reference to congregation members as “brothers and sisters.” Id. Importantly, though, the IJ failed to acknowledge Grigoryan’s answer when asked, “What do you know about the Baptist religion? Can *608you name one key principal, one key requirement of a Baptist?” Administrative Record (“A.R.”), 228. Grigoryan replied, “[t]he basis of the religion comes from John the Baptist who was the saint that baptized Jesus Christ. We believe that ... by being baptized a person can come clean of [sins]—and ... can become a real Christian, and they can become one with God.” Id. She also described the process of being baptized, in both Armenia and at the church she attended in Philadelphia, id. at 229-30, and explained that “witnessing” is “not an obligation” but is “how I feel about my religion, and I need to share it.” Id. at 245. In any event, “[b]oth history and common sense make amply clear that people can identify with a certain religion, notwithstanding their lack of detailed knowledge about that religion’s doctrinal tenets.” Rizal v. Gonzales, 442 F.3d 84, 89 (2d Cir.2006). Under these circumstances, we believe that any negative inference drawn by the IJ based on Grigoryan’s alleged “confus[ion]” about the tenets of her religion was not supported by the record.3
The Id’s adverse credibility determination also relied on an alleged “significant inconsistency” concerning Grigoryan’s proficiency in the Russian language. See IJ Oral Decision, 26-27. In a space on the asylum application form to indicate “[w]hat other languages do you speak fluently,” Grigoryan wrote “Russian.” A.R. 380. In the written statement submitted in support of her application, Grigoryan stated that she moved to a different neighborhood “because there is a big Russian population in that area, which made my living easier because I didn’t know English very well.” A.R. 395. According to the IJ, these statements were “in total contradiction to” Grigoryan’s testimony that “she only attended [a Russian Baptist] church occasionally because of her difficulty with the Russian language” and “faulty language skills.” IJ Oral Decision, 26-27. We believe that this conclusion is based on too literal a reading of the averment in Grigoryan’s asylum application, which “asked only if [she] was fluent, with no attempt to inquire into various degrees of proficiency one may have with a foreign language.” Senathirajah v. INS, 157 F.3d *609210, 218 (3d Cir.1998). In fact, Grigoryan explained, “I do understand Russian, but I don’t speak so fluently.” A.R. 233. Because she understood Russian, but not English, her decision to move to a neighborhood in the United States with a large Russian population was not implausible. Therefore, we conclude that substantial evidence does not support the IJ’s finding that Grigoryan provided inconsistent accounts of her proficiency with Russian.
Although Grigoryan produced medical records documenting various injuries allegedly caused by her persecutors, the IJ noted that “there is absolutely no evidence in the record that the injuries described in those reports have any connection to the beatings she experienced as a Baptist.” IJ Oral Decision, 25. Grigoryan testified that she was assaulted on the street in March 2000, when three people jumped on her, pushed her against a tree, held her by the throat, hit her in the head, and cursed her, stating that Baptists were traitors against Christianity and had no place in Armenia.4 A.R. 222. When she returned home, Grigoryan’s mother called an ambulance. Id. The record contains two statements from the Director of the “Emergency Aid” and “FastMediealHelp” services, indicating that Grigoryan was diagnosed on March 17, 2000, with “hematoma under eyes, waist and thighs because of hitting.” Id. at 261, 426. Grigoryan further claimed that “[ajfter two days our doctor came and saw me at home.” Id. at 223. This allegation is corroborated by a statement from Grigoryan’s doctor:
I ... saw patient Gayane Grigoryan, who had black spots under her eyes, on different parts of her body and a l[u]mp on her head. The patient was scared and weak. She was given antibiotic, pain reliever, and calming medications. After the time of getting those injuries the patient asked for medical help from Fast Help Services. (They) asked for my help on March 19, 2000.
Id. at 423. In addition, a statement from a doctor in the United States supports Grigoryan’s testimony that she saw a doctor “just after I arrived” because of left hip pain. Id. at 225-27, 299-300. Because the date and nature of Grigoryan’s injuries, which she claimed were caused by individuals who targeted her on account of her religion, match so closely with the medical reports, we conclude that substantial evidence does not support the IJ’s conclusion that Grigoryan failed to establish a nexus between her injuries and a protected ground. Cf. Butt, 429 F.3d at 438 n. 11 (acknowledging that support for asylum claim may exist where, inter alia, “the general nature of [the petitioner’s severe injuries] were corroborated by [a] doctor’s note.”).
Although the findings described above are not supported by the record, the IJ did properly identify an inconsistency involving the identity of one of the individuals who attacked Grigoryan in September 2000. In her asylum statement, and again in her brief to the BIA, Grigoryan stated that a person named Ashot, whom she recognized from her cousin’s gym class, punched her in the face. See A.R. 46, 394. She testified, however, that “[t]he guy that I knew, Ashot, wasn’t the one that was hitting me. The other one hit me.” Id. at 224. These statements are clearly inconsistent, and Grigoryan has not offered any explanation for the discrepancy.
*610IV.
We may affirm an adverse credibility determination even where, as here, a portion of the IJ’s analysis is flawed. See Tarrawally, 338 F.3d at 187 (affirming adverse credibility finding as supported by substantial evidence even though “[s]ome of the IJ’s reasons for his adverse credibility determination were based on presumptions not grounded in the record”); see also Cao He Lin v. U.S. Dep’t of Justice, 428 F.3d 391, 401 (2d Cir.2005) (“[W]e are not required to remand where there is no realistic possibility that, absent the errors, the IJ or BIA would have reached a different conclusion.”). But a remand is warranted when we cannot state with confidence that the IJ would reach the same decision in the absence of the erroneous findings. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 338-39 (2d Cir.2006) (“If the reviewing court undertakes to determine whether remand would be futile, it should assess the entire record and determine whether, based on the strength of the evidence supporting the error-free findings and the significance of those findings, it is clear that the agency would adhere to its decision were the petition remanded.”). In this case, the only error-free finding involves the discrepancy concerning the name of the individual who hit Grigoryan during the September 2000 assault; the remainder of the IJ’s credibility and corroboration determinations are flawed. Under these circumstances, we cannot confidently predict that the IJ would reach the same result on remand.
V.
For the foregoing reasons, we will grant Grigoryan’s petition for review and remand to the Board to determine, without regard to the erroneous adverse credibility and corroborating evidence findings described above, whether Grigoryan is entitled to relief.5 We express no opinion as to the ultimate outcome.
. Although Grigoryan devotes a significant portion of her brief to arguing that her untimely asylum application should have been excused because of extraordinary circumstances, we lack jurisdiction over this issue. See INA § 208(a)(3) [8 U.S.C. § 1158(a)(3)]; Sukwanputra v. Gonzales, 434 F.3d 627, 632-33 (3d Cir.2006). But, as the Government concedes, Grigoryan’s failure to challenge the adverse credibility determination on appeal to the BIA was exhausted because the BIA addressed the issue sua sponte. See Lin v. Att'y Gen., 543 F.3d 114, 123-24 (3d Cir.2008).
. Because Grigoryan’s asylum application was filed after the effective date of the REAL ID Act (May 11, 2005), the IJ was allowed to make a credibility determination "without regard to whether an inconsistency, inaccuracy, or falsehood goes to the heart of the applicant's claim----” INA § 208(b)(1 )(B)(iii) [8 U.S.C. § 1158(b)(l)(B)(iii) ]. We conclude that the erroneous adverse credibility determinations described below cannot survive even under the new standard.
. The IJ also faulted Grigoryan for failing to provide "any evidence that she is a member of, or affiliated with, the Baptist Church,” such as a baptismal certificate, a letter from the minister who performed her baptism in Armenia, or statements from other church members in Armenia or Philadelphia. IJ Oral Decision, 23-26. In denying relief based on a lack of corroboration, the IJ must conduct the following three-part inquiry: (1) an identification of facts for which it is reasonable to expect corroboration; (2) an inquiry as to whether the applicant has provided information corroborating the relevant facts; and, if he has not, (3) an analysis of whether the applicant has adequately explained his failure to do so. See Toure v. Att’y Gen., 443 F.3d 310, 323 (3d Cir.2006). Grigoryan explained that baptismal certificates are not issued in Armenia, that she "didn't know that I need papers to prove that I am part of a religion," and that it was difficult to obtain evidence from the Russian Baptist Church in Philadelphia because she does not speak Russian fluently and had difficulty finding transportation to the church. A.R. 228-29, 231, 233. Even if these explanations are inadequate, however, the IJ failed to address other evidence corroborating Grigoryan's Baptist faith. For instance, statements submitted by two family friends, her parents, and her sister, all indicate that Grigoryan is a Baptist. Id. at 267, 269, 275, 279. We recognize that the IJ does not have "to write an exegesis on every contention” raised by the movant, see Sevoian v. Ashcroft, 290 F.3d 166, 178 (3d Cir.2002), but remand may be required when the record suggests that the IJ failed to take into account significant evidence. See Zheng v. Att’y Gen., 549 F.3d 260, 269 (3d Cir.2008); see also Cham v. Att’y Gen., 445 F.3d 683, 693 (3d Cir.2006) (recognizing that an IJ must "actually consider” the evidence presented by a party).
. The IJ also questioned "how a stranger would know that this woman walking down the street was a Baptist.” IJ Oral Decision, 24. But, contrary to the IJ's finding that Grigoryan "did not say that she went out to discuss God with people,” id. at 25, she testified that "I did talk to my classmates and people that I knew in school about [baptism].” A.R. 238.
. On remand, the Board should separately consider whether Grigoryan established a prima facie claim for relief under the CAT. See Zubeda v. Ashcroft, 333 F.3d 463, 467, 476 (3d Cir.2003).
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11-05-2022
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OPINION OF THE COURT
STAPLETON, Circuit Judge:
Larnell Jones, Jr., appeals his seventy-two month sentence of imprisonment for two counts of possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1), and his consecutive twelve month sentence of imprisonment for violation of supervised release. For the reasons that follow, we will affirm.
Because we write only for the parties who are familiar with the factual context and procedural history of this case, we set forth only those facts necessary to our analysis.
*612I.
On August 12, 2004, Jones pled guilty to an indictment charging him with one count of possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). Jones was sentenced to forty-six months’ imprisonment and three years’ supervised release. Jones was released from prison and began serving his term of supervised release on December 11, 2006. On December 12, 2006, Jones was arrested by the City of Pittsburgh Police Department and later charged in state court with offenses including illegal possession of a firearm, carrying a firearm without a license, receiving stolen property, and driving under the influence. On July 14, 2007, Jones was again arrested and later charged in state court with offenses including driving under the influence, illegal possession of a firearm, and carrying a firearm without a license. Although a condition of his supervision required that he inform his probation officer of an arrest, Jones did not notify his probation officer of either arrest.
On September 26, 2007, a federal grand jury issued an indictment charging Jones with two counts of possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1), based on the events of December 12, 2006, and July 14, 2007. Jones’s probation officer filed a Supplemental Petition on Supervision noting Jones’s indictment and alleging that he had violated the condition of his supervision requiring that Jones not commit another federal, state, or local crime.
Jones entered a plea of guilty to both counts of the indictment, which also constituted an admission of the supervised release violations. The District Court held a combined sentencing hearing with regard to Jones’s criminal offenses and his supervised release violations. The Court noted at the outset that the presentence report (“PSR”) had calculated Jones’s advisory guideline range to be sixty-three to seventy-eight months based upon a total offense level of nineteen and a criminal history category of VI.
Jones objected to the computation of his criminal history score, arguing that he could not be assessed one criminal history point for a 1998 state conviction for carrying a loaded weapon listed in ¶ 53 of the PSR because it was not based on information that was sufficiently reliable. He noted that the PSR stated that the “facts of the case are unknown.” Elimination of this criminal history point would lower his total criminal history score from thirteen to twelve and his criminal history category from VI to V, thus reducing the guideline sentence range to fifty-seven to seventy-one months. Jones also argued for a variance below the guideline range and for a concurrent term of imprisonment for the supervised release violations.
The District Court found as a fact that Jones had been convicted of the offense reported in ¶ 53 of the PSR. It did so based on a docket sheet certified by the court of conviction which evidenced that Jones had pled guilty to the offense of carrying a loaded weapon in 1998. In considering the § 3553(a) factors, the District Court noted Jones’s significant criminal past, the seriousness of the offense, and the fact that the bottom of the guideline range sentence it previously imposed on Jones for his original felon in possession charge had not sufficiently impressed upon him the seriousness of his conduct. The District Court sentenced Jones to seventy-two months’ imprisonment for the felon in possession charges, a consecutive twelve-month term of imprisonment for the supervised release violations, and three years of supervised release with listed conditions. It is this sentence from which Jones appeals.
*613II.
The sentencing guidelines provide that “[i]n determining the relevant facts, sentencing judges are not restricted to information that would be admissible at trial” but may consider any information “so long as it has sufficient indicia of reliability to support its probable accuracy.” U.S.S.G. § 6A1.3, cmt. (citing United States v. Watts, 519 U.S. 148, 157, 117 S.Ct. 633, 136 L.Ed.2d 554 (1997)). In United States v. Berry, 553 F.3d 273, 284 (3d Cir.2009), relying on the Supreme Court’s holding in Watts that facts considered at sentencing must be proved by a preponderance of the evidence, we determined that an arrest record, without more, did not suffice to carry the government’s burden of proving that a defendant had been convicted of an earlier crime.
Here, however, Jones’s conviction of the offense in question was evidenced by a record of the convicting court, the authenticity of which had been certified by that court, and Jones proffered no reason to question the accuracy of that document. See United States v. McKenzie, 539 F.3d 15, 19 (1st Cir.2008) (holding that attested copies of electronic docket entries may be sufficient proffer of prior conviction for sentencing proceedings, noting that electronic docket records are increasingly the “norm,” and the defendant did not show records were inaccurate and conceded they were properly authenticated). The docket information was also consistent with the automated National Crime Information Center Database printouts for the resolution of the case. See United States v. Townley, 472 F.3d 1267, 1277 (10th Cir.2007) (government met burden to show prior conviction by preponderance of evidence where presented evidence derived from National Crime Information Center database and confirmed by probation office). The certified docket sheet clearly had “sufficient indicia of reliability to support its probable accuracy.” U.S.S.G. § 6A1.3, cmt. Therefore, we conclude that the District Court did not abuse its discretion when it determined that the government had demonstrated the existence of the prior conviction listed at ¶ 53 by a preponderance of the evidence.
Jones’s argument to the contrary is based on the Supreme Court’s decisions in Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), and Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005). In Taylor and Shepard, the Supreme Court addressed the range of information upon which a sentencing judge may rely in determining whether a defendant’s prior conviction satisfies the definition of “violent felonies” set forth in the Armed Career Criminal Act, 18 U.S.C. § 924(e). In Shepard, the Court explained that, in making this determination, a court could consider only the terms of the charging document, a plea agreement or transcript of colloquy in which the factual basis for the plea was confirmed by the defendant, or “some comparable judicial record of this information.” 544 U.S. at 26, 125 S.Ct. 1254; see Taylor, 495 U.S. at 601-02, 110 S.Ct. 2143 (determining that § 924(e) requires that the trial court look only to the fact of conviction and the statutory definition of the prior offense, not the particular facts underlying the conviction).
The Court in Taylor and Shepard was addressing issues distinct from that before the District Court in this case. The sentencing judges in those cases were required to determine whether the convictions before them were “violent” within the meaning of the Armed Career Criminal Act. Here, the only fact relevant under the guidelines was whether Jones was convicted of the alleged offense in 1998.
*614Decisions from our sister Courts of Appeals support the conclusion that the holdings in Shepard and Taylor do not limit the type of documents a sentencing court may consider for purposes of determining the fact of a prior conviction in order to compute a defendant’s criminal history score. These decisions have consistently rejected applying the holding of Shepard in such instances and continue to consider whether the documents submitted have sufficient indicia of reliability to support their probable accuracy. See United States v. Felix, 561 F.3d 1036, 1045 (9th Cir.2009) (determining that defendant’s reliance on Shepard was without merit because the issue was only whether the documents supported the fact of the conviction, not its type or character); United States v. Neri-Hernandes, 504 F.3d 587, 591 (5th Cir.2007) (Shepard does not apply when determining whether the government has satisfied its burden of proof as to the existence of a prior conviction; a court must consider whether the submitted documents have sufficient indicia of reliability to be used as evidence of prior conviction); United States v. Zuniga-Chavez, 464 F.3d 1199, 1204 (10th Cir.2006) (Shepard did not address what documents could be used to prove the fact of a prior conviction; rather, Shepard was only concerned with what documents could be used to prove the facts underlying the conviction where the elements of the state crime did not mirror the federal definition; therefore Shepard was not controlling).
III.
We are unpersuaded by Jones’s argument that the District Court did not consider all of the § 3553(a) factors and his arguments regarding those factors. We are also unpersuaded that the sentence was substantively unreasonable. The record as a whole shows that the District Court conducted a detailed and thorough analysis of the relevant § 3553(a) factors and of Jones’s arguments for a variance with respect to these factors.
In addressing the factors set forth in § 3553(a), the District Court began with the nature and circumstances of the offense, noting that the offense was not violent in nature but that it was part of a pattern of criminal activity. In considering the history and characteristics of the defendant, the Court noted that Jones was thirty-two years old at the time of the offense and his conduct could not be attributed to youthful indiscretion, that he had a significant history of criminal conduct as an adult, and that he consistently violated the terms of his probation and supervision. The Court noted Jones’s arguments about witnessing his mother commit a homicide, about his physical and mental health problems, about his admitted alcohol and substance abuse, and about his having received his GED and obtained employment “in some instances.” The Court then considered the need to impose a sentence that reflected the seriousness of the offense and promoted respect for the law, noting that it is a serious offense for a convicted felon to possess a firearm. The Court also noted the significant need for deterrence because of Jones’s extensive criminal history and the need to protect the public.
Immediately after imposing the sentence, the Court provided the following explanation of the principal reasons for its imposition:
Defendant stands before us for the second time for possession of a firearm by a felon. Convicted felons are prohibited from possessing firearms for good reason, and the possession of them warrants a significant penalty.
At his first sentencing, I noted his difficult childhood and imposed a sentence at the bottom end of the estimated *615guideline range. His conduct in this case, however, shows that that was not apparently the appropriate sentence. In order to impress upon the defendant the seriousness of his conduct, I will impose a substantial period of incarceration along with the maximum period of supervised release to include a substance abuse treatment program.
App. at 108.
The record reflects that the District Court gave meaningful consideration to all the relevant § 3553(a) factors. That it did this before giving Jones an additional opportunity to address the Court does not make the Court’s discussion a “meaningless rote recitation” of the factors. Additionally, the fact that the Court reiterated certain factors after imposing the actual sentence does not detract from the previous analysis in which the Court thoroughly considered all the relevant factors. Moreover, as the above-quoted passage suggests, a review of the record contradicts Jones’s argument that the District Court failed to rule on his request for a variance based on his personal history.
A review of the record does not reveal any procedural error. Nor can we say that the sentence is substantively unreasonable given the Court’s reasoned and
thorough explanation for imposing a sentence within the advisory guideline range.1
For these reasons, the judgment of the District Court will be affirmed.
. Jones relied upon the same § 3553(a) variance arguments when he requested that the violation of supervised release sentence run concurrent with the sentence on the indictment. In denying a concurrent sentence, the District Court incorporated its § 3553(a) analysis from the denial of the variance. App. at 110. The Court noted that it was within its discretion to make the sentence run consecutively, "[o]therwise the violation of the supervised release is meaningless.” App. at 113. In addition to all the factors previously discussed, the Court noted that Jones would be forty years old when he was released from incarceration and would still have a full life ahead of him. We note that the twelve month consecutive sentence was below the advisory guideline range of eighteen to twenty-four months. "A district court’s primary consideration in handing down a revocation sentence is the defendant's breach of trust.” United States v. Dees, 467 F.3d 847, 853 (3d Cir.2006) (finding maximum statutory sentence was reasonable where defendant had multiple and flagrant breaches of trust that began almost immediately upon his release from prison, and rehabilitation had not been achieved during the first term of imprisonment). Because the District Court gave meaningful consideration to the § 3553(a) factors, and given Jones’s repeated breaches of trust that began immediately upon his release from incarceration, the District Court did not commit procedural error in imposing a consecutive sentence, nor was that sentence substantively unreasonable.
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OPINION
PER CURIAM.
Among other complaints Sandra Gadsden filed in the District Court, she filed two complaints against her former employer, The Jersey City Public Schools. Both cases were assigned to Judge Linares, one docketed as Sandra I.[sic] Gadsden v. Jersey City Public Schools, The (D.N.J.Civ. No. 08-03248), and one docketed as Sandra L. Gadsden v. The Jersey City Public Schools (D.N.J.Civ. No. 08-03249). The allegations in the complaints themselves are identical (a host of federal and state constitutional and statutory violations relating to her former employer’s decision to terminate her employment), but the attachments to the complaints differ slightly. On July 2, 2008, the District Court dismissed both cases.
On July 17, 2008, Gadsden filed a document captioned “Caption § 56.3(2) Disqualification of Judges” in both cases. In it, she seemed to state that the grounds on which Judge Linares closed another of her cases were unfair and she seemed to call for his recusal (although she may have been discussing a different District Court judge). In early September, Gadsden filed a letter noting that she had not received any information concerning the removal of the judges presiding over her cases. Apparently in relation to D.N.J. Civ. No. 08-03248, she stated “1st Discrimination Civil Action No. 08-3248 was opened against the New Jersey Education Association, which gave me the right to open the case under Discrimination with the right to sue. I submitted the right to sue letter from EEOC dated June 19, 2007. Judge Jose L. Linares did not review the cases he went against the law....” Letter filed Sept. 2, 2008,1.
*617On October 17, 2008, Gadsden filed a notice of appeal in C.A. No. 08-3248, which she captioned “Sandra L. Gadsden v. New Jersey Education Association.” She stated that she sought review of the order “entered on July 17, 2008 and amended on July 30, 2008 for Removal of Judge for Caption § 56.3(2) Bias Recusal, and § 51.2 New Trial.” She wrote about Judge Linares closing her charges of discrimination against the “above entity due to separate charges against the New Jersey Education Association (Union).” Among other things, Gadsden argued that she was entitled to file a discrimination suit based on a violation of her constitutional and civil rights. She also discussed her case before another District Court judge, listing how the New Jersey Education Association purportedly wronged her.
On October 17, 2008, Gadsden also filed her first notice of appeal in D.N.J. Civ. No. 08-03249. She stated that she appealed the judgment “entered on July 17, 2008 and amended on July 30, 2008 for Removal of Judge for Caption § 56.3(2) Bias Recusal, and § 51.2 New Trial.” In the three page document, she complained of another District Court judge’s actions and repeated a summaiy of her claims against her former employer and union.
While the two appeals were pending, proceedings continued in the District Court. On February 10, 2009, Judge Linares entered an order in D.N.J. Civ. No. 08-03248 and D.N.J. Civ. No. 08-03249 to deny Gadsden’s request for him to recuse. The District Court also stated that it would take no action on a request to reopen a case on appeal to the extent that Gadsden was requesting reopening. The District Court also directed Gadsden to file any new requests for reopening with a different District Court judge.
Gadsden then filed a second notice of appeal in each District Court case. Actually, she captioned it “Sandra L. Gadsden v. The Jersey City Public Schools, Feintuch, Porwich & Feintuch, and New Jersey Education Association,” and cross-filed in all of the cases before Judge Linares and another District Court judge. She complained of “Errors [that] deprived [her] of due process,” namely that the Clerk’s Office continued “to type Jersey City Education Association as [her] Job.” She noted that the Education Association was her union. She summarized her claims against the Jersey City Education Association and the Jersey City Public Schools. Gadsden also alluded to alleged errors by the Clerk that caused her cases to be closed and resulted in a date-stamp of October instead of July on her notice of appeal. She repeated her claims of bias on the part of the District Court judges, too.
Our first question is whether we have jurisdiction over her first set of appeals (the appeals from the dismissal of her complaints). Upon review, we conclude that the answer is no. The time limit of Rule 4(a)(1) of the Federal Rules of Appellate Procedure for commencing an appeal is mandatory and jurisdictional. See Bowles v. Russell, 551 U.S. 205, 208-14, 127 S.Ct. 2360, 168 L.Ed.2d 96 (2007); Browder v. Director, Dep’t of Corrections, 434 U.S. 257, 264, 98 S.Ct. 556, 54 L.Ed.2d 521 (1978). A notice of appeal in a civil case in which the United States is not a party is timely if it is filed within 30 days of the entry of the order or judgment being appealed. See Fed R.App. P. 4(a)(1). The District Court issued its order dismissing Gadsden’s complaints on July 2, 2008. Gadsden filed her first notices of appeal on October 17, 2008, more than 30 days later. Accordingly, we do not *618have jurisdiction over her untimely appeals from the dismissals of her District Court cases.1
We turn now to Gadsden’s second set of appeals in this consolidated case. We preliminarily address a jurisdictional issue. To wit, the District Court ruled on the apparent recusal motion while Gadsden’s first appeals were pending. Generally, “the filing of a notice of appeal divests the district court of jurisdiction over the case pending disposition of the appeal.” See Venen v. Sweet, 758 F.2d 117, 120 (3d Cir.1985) (citing Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58, 103 S.Ct. 400, 74 L.Ed.2d 225 (1982) (per curiam)). However, the District Court did not lose jurisdiction in this case because Gadsden appealed from an order that could no longer be appealed. See Venen, 758 F.2d at 120.
Upon review, we will affirm in each case the order denying Gadsden’s request for recusal. To the extent that Gadsden was seeking Judge Linares’s recusal, recusal was not necessary because a reasonable person, with knowledge of the relevant facts and circumstances, would not doubt the District Court judge’s impartiality. See In re Kensington Int’l Ltd., 368 F.3d 289, 301 & n. 12 (3d Cir.2004); Edelstein v. Wilentz, 812 F.2d 128, 131 (3d Cir.1987).
In conclusion, for the reasons given above, we will dismiss for lack of jurisdiction Gadsden’s consolidated case to the extent that it relates to the appeals from the District Court’s orders of July 2, 2008 (C.A. No. 08-4296 and C.A. No. 08-4401). We will affirm the District Court’s order of February 10, 2009 (appealed in C.A. No. 09-1558 and C.A. No. 09-1559).
. Gadsden also seeks to characterize an earlier filing as a notice of appeal and/or to blame personnel in the Clerk's Office for an error in date-stamping her notice of appeal; however, her arguments are not supported by record evidence.
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OPINION
PER CURIAM.
Ilya Roytburd appeals from a decision of the United States Tax Court, which sustained the Internal Revenue Service’s (“IRS”) assessment of tax deficiencies and additions to taxes for the years 2004 and 2005 and imposed a $5,000 penalty pursuant to 26 U.S.C. § 6673. For the following reasons, we will affirm. Roytburd did not file income tax returns for the 2004 and 2005 tax years. The IRS determined that Roytburd was liable for income tax deficiencies of $16,080.70 and $17,362 for 2004 and 2005, respectively, as well as additions to taxes.1 The IRS sent Roytburd notices of deficiency for each year that informed him of the deficiencies and additions. Roytburd filed a timely petition in the United States Tax Court contesting the IRS determinations on the theory that he was not required to pay income tax because he is not a “resident and/or citizen of the United States and is in fact domiciled in the sovereign Republic of Pennsylvania, and claiming state citizenship.” He later filed an amended petition in which he repeated the legal arguments that he is not required to file an income tax return or pay income tax.
The IRS Commissioner moved to dismiss the petition for failure to state a claim and to impose a penalty under § 6673. The Tax Court ordered Roytburd to file a second amended petition, which he did, essentially repeating the claims made in the original and first amended petitions. He also filed an objection to the motion to dismiss. The Tax Court granted the Commissioner’s motion to dismiss and imposed a $5,000 penalty pursuant to § 6673. After the Tax Court denied his motion to vacate, Roytburd timely filed this pro se appeal. Roytburd also requests that this Court issue a writ of error to the Tax Court, a writ of mandamus ordering the clerk to file default against the IRS Commissioner, and a writ of prohibition against the IRS to prohibit the agency from engaging in collections action against him. In the alternative, Roytburd seeks a writ of mandamus to order the Tax Court to order him to pay the deficiency, find the “notorious default” against him null and void, and find that he is “not a Sovereign *620Man but a slave of his created governments subject to its dictates.”
We have jurisdiction pursuant to 26 U.S.C. § 7482(a)(1). We review the Tax Court’s factual findings for clear error and have plenary review over its legal conclusions. See PNC Bancorp, Inc. v. Comm’r of Internal Revenue, 212 F.3d 822, 827 (3d Cir.2000). We review the imposition of a penalty under § 6673 for abuse of discretion. See Sauers v. Comm’r of Internal Revenue, 771 F.2d 64, 70 (3d Cir.1985). The taxpayer bears the burden of proof to show that the determination is invalid. See Helvering v. Taylor, 293 U.S. 507, 515, 55 S.Ct. 287, 79 L.Ed. 623 (1935).
The Tax Court properly dismissed Roytburd’s petition. Roytburd’s arguments are those of a tax protester. We and other courts have consistently rejected such arguments and we need not address them again here. See Sauers, 771 F.2d at 66-67; see also United States v. Mundt, 29 F.3d 233, 237 (6th Cir.1994); United States v. Sloan, 939 F.2d 499, 500-01 (7th Cir.1991); Charczuk v. Comm’r of Internal Revenue, 771 F.2d 471 (10th Cir.1985). In light of the frivolous nature of his claims, the Tax Court did not abuse its discretion in imposing a penalty on Roytburd under § 6673.
To the extent that Roytburd seeks writs of error, mandamus, and prohibition, his requests are denied because he cannot demonstrate a clear and indisputable right to issuance of the writs. See Ken v. United States District Court, 426 U.S. 394, 403, 96 S.Ct. 2119, 48 L.Ed.2d 725 (1976); DeMasi v. Weiss, 669 F.2d 114, 117 (3d Cir.1982).
For the foregoing reasons, we will affirm the Tax Court’s decision. The Commissioner’s motion for sanctions is granted in the sum of $4,000 (four-thousand dollars).
. The IRS also determined that Roytburd was liable for an addition to taxes amounting to $1,410.46 under § 6651(a)(1), $150.31 under § 6654(a), and $908.96 under § 6651(a)(2) for 2004, and $1,444.50, $208.76, and $545.70, respectively, for 2005.
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OPINION
PER CURIAM.
Cbane Toska petitions for review of an order of the Board of Immigration Appeals (“BIA”), which dismissed her appeal of the removal order of an Immigration Judge (“IJ”). We will deny the petition for review.
Cbane Toska is a native and citizen of Albania. She entered the United States in December 2004 on a visitor’s visa and stayed longer than permitted. Toska applied for asylum and related relief. Toska testified as follows.
Toska stated that she was persecuted in Albania due to her involvement with the Democratic Party. She joined the party in January 1991 and was involved in putting up posters, distributing literature, and she used the restaurant she and her husband owned for meetings. A.R. 89-90. She also participated in elections. The Democratic Party came into power in March 1992 and governed until 1997, when the Socialists took power. A.R. 113-14.
Toska testified that she was arrested on September 14, 1998 when she and her husband were returning from the funeral of a Democratic Party leader. She was held overnight and was beaten. The police threatened to kill her if she didn’t give up the Democratic Party. A.R. 108-12. She was next arrested on June 6, 2001 along with a friend during the electoral campaign. She was held for three hours, was threatened by the police, and was beaten. A.R. 105-08. She was arrested for the last time on September 24, 2003. Her restaurant was full of supporters of the Democratic Party, and the police came, shut down the restaurant, and arrested her. She was held for about five hours. They threatened her life and beat her. A.R. 103-04. On September 3, 2004 she was going to work when four people, who had made trouble at the restaurant the night before, came in front of her car and broke the windshield. They took her out of the car, hit her and threatened to kill her. Her leg was hurt and she sought care from a nurse or doctor in her home. A.R. 94-*631101. She and her husband consulted a lawyer who advised them to leave Albania. A.R. 95. On October 13, 2004, her house was attacked with firearms and her dog was poisoned. A.R. 92-94. Toska then left for the United States. Her husband remains in Albania with the children. Toska testified that she was aware that the Democratic Party won in the 2005 election, but she stated that it was only a weak coalition that prevailed. She testified that she did not believe she would be safe if she were to return to Albania. A.R. 117.
Toska presented an affidavit from an expert on conditions in Albania who described conditions in Albania and who opined that Toska’s description of what happened to her was consistent with those conditions. Toska also presented a membership card for the Democratic Party and an affidavit from officials of the Democratic Party. She also submitted a receipt noting she had received medical treatment for 7 days in September 2004. The IJ found problems with some of her evidence. The affidavit from the Party did not describe any problems that Toska had personally had due to her membership, such as her arrests, even though she testified that she had informed party officials each time she had a problem.1 The medical receipt simply said that she had been treated at home for seven days in September 2004, and does not say what her injury was. The receipt was not dated. A.R. 178-79.
The IJ believed that Toska was a member of the Democratic Party, that she owned a restaurant, and that she may have been insulted and have gotten in debates over her political activity. However, the IJ noted that there was no corroboration for her testimony concerning her arrests and injuries. The IJ noted that although she was in frequent contact with her husband, there was no affidavit or other corroboration from her husband. The IJ also noted that the lawyer she consulted in Albania could have provided an affidavit. The IJ also found that her testimony regarding the September 2003 arrest, that she was beaten, was inconsistent with her application, which only said she was threatened. The IJ did not believe that Toska had been persecuted in the past, and noted that with the Democrats in power, she was not likely to be persecuted in the future. The IJ also found no evidence that she would be tortured. The IJ denied relief, but granted voluntary departure. A.R. 57-72.
The BIA adopted and affirmed the IJ’s decision. The BIA affirmed the IJ’s adverse credibility finding, agreeing that Toska had failed to present reasonably available corroborative evidence and agreeing that the finding was supported by unexplained discrepancies. The BIA also found there was no evidence in the record that Toska would be tortured, and noted specifically that the Democratic Party was in power in Albania. The BIA extended Toska’s period for voluntary departure to 60 days from September 19, 2008. A.R. 3-4. Toska filed a timely, counseled petition for review.
Because the BIA relied on the IJ’s reasoning, the decisions of the BIA and the IJ both must be considered. See Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir.2004). Credibility determinations are reviewed under the substantial evidence standard. See Xie v. Ashcroft, 359 F.3d 239, 243 (3d Cir.2004). The Court must uphold the credibility determination unless “any reasonable adjudicator would be compelled to *632conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B).- Adverse credibility determinations based on speculation or conjecture, rather than on record evidence, are reversible. Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir.2002).
Before denying asylum based on lack of corroboration, the agency must conduct a three-part inquiry: “(1) an identification of facts for which it is reasonable to expect corroboration; (2) the presence or absence of such corroboration in the record; and (3) the adequacy of the applicant’s explanation for its absence.” Toure v. Att’y Gen., 443 F.3d 310, 323 (3d Cir.2006) (citing Abdulai v. Ashcroft, 239 F.3d 542, 554 (3d Cir.2001)). Because the BIA did not conduct its own Abdidai inquiry and merely deferred to the findings of the IJ, this Court directly reviews the decision of the IJ. See Abdulai, 239 F.3d at 549 n. 2. The IJ’s findings are given considerable deference. The new language of 8 U.S.C. § 1252(b)(4), added by the REAL ID Act of 2005 provides that “no court shall reverse a determination made by a trier of fact with respect to availability of corroborating evidence ... unless the court finds ... that a reasonable trier of fact is compelled to conclude that such corroborating evidence is unavailable.”
Toska argues that the IJ based his adverse credibility finding on one minor perceived inconsistency-—that her application simply said her life was threatened during her 2003 detention whereas she testified that she was beaten during that detention. Petitioner’s Brief at 10-11. One could argue that there is not really an inconsistency here; she may have felt her life was threatened, in part, by means of the beating. However, the IJ also based his adverse credibility finding in large part on the affidavit from the Democratic Party, which failed to mention that Toska had been arrested or beaten because of her political activities, even though she said she had informed them of all her troubles. A.R. 65-66. The record does not compel us to find that Toska was credible.
Further, even assuming she was credible, the IJ did not err in requiring corroboration for Toska’s claims. An alien’s credible testimony may satisfy the burden of proof for a claim for relief from removal. See Dia v. Ashcroft, 353 F.3d 228, 247 (3d Cir.2003). However, the BIA may require even “otherwise-credible applicants to supply corroborating evidence in order to meet their burden of proof.” Abdulai, 239 F.3d at 554. It is reasonable to expect corroboration about facts central to a claim and easily subject to verification. Id. It also is reasonable to expect letters from family members remaining in an applicant’s home country. See id. Toska did not provide any evidence from her husband, and her only explanation was that her attorney did not tell her to provide such evidence. The affidavit and medical receipt she did provide, while not contradictory, do not lend much support to her claims.
Although Toska’s testimony describes some significant instances of past persecution—beatings and detentions for her political activities, and having her house fired upon—we find that substantial evidence supports the IJ’s adverse credibility finding, and his finding that Toska did not provide reasonably available corroborative evidence.
Because Toska failed to meet the burden of proof required for asylum, we agree with the BIA that she necessarily failed to meet the higher burden of proof for statutory withholding of removal. We further agree that because her claim for relief under the Convention Against Torture is based on the same testimony that was found to be incredible, she has not established that it is more likely than not that *633she will be tortured upon her return to Albania. We will therefore deny the petition for review.
. The affidavit simply states that Toska and her husband were originally from the NorthEast of the country, that they had been insulted by the ‘‘aborigines,” and that there had been “events of bickering and arguments with residents.” A.R. 192.
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OPINION OF THE COURT
FUENTES, Circuit Judge:
Christopher Barton brought this action against William Curtis, Jr., an investigator for the United States Virgin Islands Department of Justice (“DOJ”). Barton alleges that Curtis, while investigating a complaint against Barton that Barton’s ex-wife had filed with the DOJ, recklessly misrepresented facts in an affidavit Curtis submitted in an effort to obtain a warrant for Barton’s arrest. The District Court granted Curtis’s motion for summary judgment, finding that he was entitled to qualified immunity. We will affirm.1
I.
This case has its genesis in a dispute between Barton and his ex-wife, Mirna Barton (“Mirna”), over the custody over their two children. Barton initially commenced child custody proceedings in North Carolina, but the North Carolina court subsequently relinquished its jurisdiction over the matter to the Florida court system, where Mirna had separately commenced custody proceedings.
A custody hearing before a special master in Florida took place, following which the special master issued a series of “findings and recommendations” dated August 6, 1999. In his findings, the special master determined that Barton had “unresolved drug problems[,] ... [and] questionable fitness as a parent,” and that Barton had interfered with Mima’s ability to visit the children. (J.A. 99.) The special master thus recommended that the children be returned to Florida to be reunited with their mother, and that Barton and Mirna have joint custody, with Mirna to act as primary residential parent. On August 24, 1999, a Florida judge, the Hon. Robert Carney, entered an order ratifying and approving the master’s findings, “subject only to timely filed objections.” (J.A. 96.) Barton apparently filed a timely objection, although this filing does not appear in the record before us. As Judge Carney stated in an affidavit drafted years after these events took place, the fact that Barton filed an objection meant that the ratification contemplated in the August 24, 1999 order never actually occurred.
In August 1999, Barton moved with his children to the Virgin Islands.2 Seven months later, Barton filed a petition with the Virgin Islands Territorial Court to get custody of the children. In his petition, Barton referenced the Florida proceedings, stating that he believed Mirna had dropped the matter in order to reconcile with Barton, and further stating that he was a “fit and proper person to be awarded custody.” (J.A. 110.) In September 2000, the Territorial Court granted Barton sole physical custody of his children.
When she became aware of the Territorial Court order, Mirna filed an objection, producing the special master’s findings *637and recommendations and stating—incorrectly, it turns out—that the document was a valid order of the Florida court. The Territorial Court amended its prior order and granted joint custody to Barton and Mirna, with Mirna to act as primary residential parent. The Territorial Court further determined that Barton had committed fraud upon the court by making numerous statements and omissions it found to be false, including Barton’s failure to inform the court that he had been “ordered” by the special master to return the children to Florida in the same month that he moved them to the Virgin Islands. (J.A. 91.)
Pursuant to a complaint Mirna filed with the DOJ, Curtis, an investigator for the DOJ, launched an investigation into Barton’s alleged fraud. After reviewing the Territorial Court file, Curtis drafted an affidavit in support of an application for an arrest warrant for Barton. The affidavit stated that the Florida court’s custody award made Mirna the primary residential parent of the two children, and it referenced the special master’s findings concerning Barton’s drug use and questionable parental fitness. The affidavit further stated that Barton took the children to the Virgin Islands in violation of a court order, and that Barton had made false representations to the Territorial Court by failing to inform it of the special master’s findings concerning his drug use and questionable parental fitness.3
A warrant was issued and Barton was arrested, charged, and ultimately found guilty of violating a Virgin Islands statute which makes it illegal to make false statements to the government. Barton’s conviction was overturned on appeal. The appellate court determined that the trial court had improperly admitted the special master’s findings and had incorrectly characterized them as an order of the Florida court; as an affidavit of Judge Carney, the Florida judge, made clear, the findings never actually were ratified given that Barton had filed timely objections. Significantly, neither this affidavit, nor the objections Barton filed with the Florida court, were in the Territorial Court file Curtis reviewed when preparing the affidavit that served as the basis for Barton’s arrest.
Barton brought this suit against Curtis pursuant to 42 U.S.C. § 1983, alleging that his arrest was obtained by false statements and reckless omissions in Curtis’s affidavit. In particular, Barton alleges that Curtis misrepresented the nature of the special master’s findings and them legal significance. The District Court granted Curtis’s motion for summary judgment, concluding that although Curtis’s investigation could have been more thorough, Barton’s evidence failed to show that Curtis’s affidavit exhibited a reckless disregard for the truth.4 The district court further found that even if Curtis had shown a reckless disregard for the truth, *638Curtis’s affidavit, cured of the deficiencies Barton identified, would still support a finding of probable cause.
II.5
“Government officials are immune from suit in their individual capacities unless, taken in the light most favorable to the party asserting the injury, the facts alleged show the officer’s conduct violated a constitutional right and the right was clearly established at the time of the objectionable conduct.” Giles v. Kearney, 571 F.3d 318, 325 (3d Cir.2009) (internal quotations and citations omitted). There is no question that the right at issue herein has long been clearly established: if an officer “recklessly disregard^] the truth in his warrant application, and [if] ... a warrant application based on what [the officer] should have told the judge would have lacked probable cause,” then that officer has violated the arrestee’s clearly established Fourth Amendment rights. Wilson v. Russo, 212 F.3d 781, 786 (3d Cir.2000) (emphasis omitted). The question here is whether the District Court correctly concluded that the evidence failed to establish that Curtis recklessly disregarded the truth in his warrant application.
We agree with the District Court’s conclusion. The crux of Barton’s argument concerning Curtis’s alleged recklessness is that Curtis, in reviewing the Territorial Court file, should have recognized that Judge Carney’s August 1999 order, which, in effect, granted custody of the children to Mirna, did not have the force of law. Barton suggests that Curtis should have known that the order, which expressly adopted the recommendations contained in the special master’s report, became invalid when Barton filed an objection—even though the objection does not appear in the Territorial Court record.
We cannot agree. We have explained that “assertions [in warrant applications] are made with reckless disregard for the truth when an officer has obvious reasons to doubt the truth of what he or she is asserting,” and that this “standard is similar to the actual malice standard set forth in First Amendment defamation claims.” United States v. Yusuf, 461 F.3d 374, 383 (3d Cir.2006) (citation omitted, emphasis added). We see no basis whatsoever, let alone an “obvious” basis, for Curtis to have discerned from the Territorial Court file that Burton filed an objection that altered the legal status of Judge Carney’s order. Id. Indeed, both Curtis and the Territorial Court judge reached the same conclusion from the plain language of the Florida court’s order: that the Florida court had made Mirna the primary residential parent on account of, among other things, Barton’s drug use and parental unfitness, and that Barton was required under the terms of the order to return his children to Florida. While we now know that the Florida court’s order became invalid as a result of Barton’s objection, the Territorial Court record available to Curtis did not disclose this fact, and nothing in the record before us suggests that Curtis had “obvious reasons to doubt the truth of [the assertions]” in his warrant application. Id. We therefore agree with the District Court that Curtis is entitled to qualified immunity.
*639hi.
For the foregoing reasons, we will affirm the District Court’s grant of summary judgment.
. The District Court had jurisdiction pursuant to 28 U.S.C. § 1331 and we have jurisdiction pursuant to 28 U.S.C. § 1291.
. The parties dispute whether Barton moved to the Virgin Islands in anticipation of the Florida court's ratification of the special master's findings or for another reason. This dispute is not material for purposes of the matter before us.
. Curtis's affidavit did not mention the Territorial Court’s finding that Barton had failed to inform it that the North Carolina court had relinquished jurisdiction over the custody matter to the Floi ida court or that the North Carolina court’s award of temporary custody was no longer valid. These findings were not accurate, as Barton appears to have informed the Territorial Court of these facts.
. The District Court denied Curtis’s first motion for summary judgment, finding that disputed questions of fact foreclosed a determination as to qualified immunity at that time. We determined in Barton v. Curtis, 497 F.3d 331 (3d Cir.2007), that we did not have jurisdiction over Curtis’s interlocutory appeal of this first summary judgment order.
. We review the District Court’s grant of summaty judgment de novo and apply the same standard as the District Court. See MBIA Ins. Corp. v. Royal Indem. Co., 426 F.3d 204, 209 (3d Cir.2005). Summary judgment is appropriate where the movant establishes that there are no material issues of fact, and that he is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c).
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Grant Eugene Erieksen appeals the district court’s order accepting the recommendation of the magistrate judge and denying relief on his 42 U.S.C. § 1983 (2006) complaint. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Ericksen v. Booth, No. 2:08-cv-00104-REM-DJJ, 2009 WL 1974195 (N.D.W.Va. July 7, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Richard Henry Robinson appeals the district court’s judgment entered pursuant to his guilty plea to failure to register as a sex offender, in violation of 18 U.S.C. § 2250 (2006). Robinson reserved, in his plea agreement, the right to challenge on appeal the district court’s denial of his *714motion to dismiss the indictment against him. We have reviewed the record and find no reversible error in light of this court’s recent authoritative decision in United States v. Gould, 568 F.3d 459 (4th Cir.2009). Accordingly, we affirm for the reasons stated in Gould. 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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Petition denied by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Herbert Council petitions for a writ of mandamus based on undue delay by the district court in acting upon his motion for reduction of sentence, 18 U.S.C. § 3582 (2006). Our review of the district court’s docket reveals that the district court entered a final order on March 3, 2009, denying Council’s § 3582 motion. In light of the court’s action, we deny as moot Council’s petition for writ of mandamus. We grant Council’s motion to proceed in forma pauperis and we dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
PETITION DENIED.
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Monte Dubois Gregory appeals the district court’s order denying Gregory’s motion to compel the Government to file a Federal Rule of Criminal Procedure 35(b) motion. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Gregory v. United States, No. 3:08-cv-00482-FDW, 2009 WL 1021342 (W.D.N.C. Apr. 15, 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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*750Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Bernard Middleton appeals the district court’s order denying his motion for reduction of sentence, 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. Middleton, No. 1:92-cr00348-CMH-3 (E.D. Va. filed Aug. 25; entered Aug. 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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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Anthony Lamar Snipe appeals the district court’s order denying his motion for a sentence reduction under 18 U.S.C. § 3582(c)(2) (2006). We have reviewed the record and find no reversible error. Accordingly, we affirm the district court’s order. United States v. Snipe, No. 2:02-cr-00833-PMD (D.S.C. June 29, 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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ORDER
A jury convicted Maurice Harrison of distributing more than 50 grams of cocaine base in violation of 21 U.S.C. § 841(a)(1). At sentencing, the district court calculated the applicable range under the United States Sentencing Guidelines. The district court concluded that based on 63 grams of cocaine base (crack cocaine), Harrison’s base offense level was 32. Harrison received a two-level enhancement for obstruction of justice which resulted in an adjusted offense level of 34. Harrison’s criminal history category of I produced a range under the guidelines of 151 to 188 months’ imprisonment. The district court sentenced Harrison to 151 months in prison.
Harrison appealed his conviction and sentence. We affirmed his conviction and concluded the district court had properly calculated the guidelines range. United States v. Harrison, 431 F.3d 1007 (7th Cir.2005). Because Harrison had been sentenced before the Supreme Court’s decision in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), we issued a limited remand in accordance with the procedure set forth in United States v. Paladino, 401 F.3d 471 (7th Cir.2005). Our limited remand asked the district court whether it would have imposed the same sentence had it known the guide*954lines were advisory. Harrison, 431 F.3d at 1014.
The district court responded that had the sentencing guidelines been advisory when it originally sentenced Harrison, it would have imposed the same sentence of 151 months. The district court also stated that it had given the parties an opportunity to submit their views in writing. The district court noted that Harrison had submitted his views in a pro se motion for appointment of counsel (he asked that he receive a sentence of 121 months), and it later struck his pro se motion to reconsider.
We decline Harrison’s request to remand this case to a different judge with instructions for resentencing. Harrison’s case is on plain error review. See Harrison, 431 F.3d at 1014; Paladino, 401 F.3d at 483-84. The district court’s decision on remand reflects that Booker did not affect the sentence Harrison received. In particular, the district court stated that under 18 U.S.C. § 3553(a), it would still impose a sentence at the low end of the now advisory guidelines range given the circumstances of Harrison’s conduct, his criminal history, his lack of remorse and lack of recidivism, and the necessity of public protection. The district court noted further that Harrison had perjured himself during trial and also that credible evidence had been presented that Harrison had sold crack in the past. Because the outcome would have been the same had the guidelines been advisory, there can be no “plain error.” See United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (to warrant reversal on plain error review, error must have affected the appellant’s substantial rights, which in the ordinary case means the appellant must demonstrate that it “affected the outcome of the district court proceedings,” and appellate court has discretion to remedy the error if it seriously affects the fairness, integrity, or public reputation of judicial proceedings). We also note that although Harrison maintains that neither he nor his appellate counsel received the district court’s order inviting the parties to submit their views upon remand by January 9, 2006, Harrison’s appellate counsel acknowledges that the government served its December 19, 2005 submission regarding the Paladino remand upon appellate counsel, which was well in advance of the submission deadline. Finally, the decision to sentence Harrison to the low end of the guidelines range was reasonable under the circumstances. We therefore affirm the judgment of the district court.
Another development has also taken place. Although a statutory mandatory minimum sentence of 10 years still applies, see 21 U.S.C. § 841(b)(1)(A), the United States Sentencing Commission has issued new guidelines that retroactively reduced the 100:1 ratio between crack cocaine and powder cocaine guideline ranges that applied when Harrison was sentenced. See U.S.S.G. Supp. to App. C., pp. 226-31 (2007) (Amendment 706); U.S.S.G. Supp. to App. C., p. 253 (Amendment 713). The new guideline range for a person held responsible for 63 grams of crack cocaine with a two-level enhancement and a criminal history category of I is 121 to 151 months. This means that Harrison can now file a motion for a reduction in his sentence pursuant to 18 U.S.C. § 3582(c)(2). (The district court may also reduce the sentence on its own initiative, or the director of the bureau of prisons may file a motion instead of the defendant. 18 U.S.C. 3582(c)(2).).
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Grant Eugene Erieksen appeals the district court’s order accepting the recommendation of the magistrate judge and denying relief on his 42 U.S.C. § 1983 (2006) complaint. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Ericksen v. Booth, No. 2:08-cv-00104-REM-DJJ, 2009 WL 1974195 (N.D.W.Va. July 7, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Tommy Carnel General appeals the district court’s order denying his motion for sentence reduction under 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. General, No. 5:99-cr00068-H-3 (E.D.N.C. Aug. 4, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Richard Henry Robinson appeals the district court’s judgment entered pursuant to his guilty plea to failure to register as a sex offender, in violation of 18 U.S.C. § 2250 (2006). Robinson reserved, in his plea agreement, the right to challenge on appeal the district court’s denial of his *714motion to dismiss the indictment against him. We have reviewed the record and find no reversible error in light of this court’s recent authoritative decision in United States v. Gould, 568 F.3d 459 (4th Cir.2009). Accordingly, we affirm for the reasons stated in Gould. 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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Petition denied by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Herbert Council petitions for a writ of mandamus based on undue delay by the district court in acting upon his motion for reduction of sentence, 18 U.S.C. § 3582 (2006). Our review of the district court’s docket reveals that the district court entered a final order on March 3, 2009, denying Council’s § 3582 motion. In light of the court’s action, we deny as moot Council’s petition for writ of mandamus. We grant Council’s motion to proceed in forma pauperis and we dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
PETITION DENIED.
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Monte Dubois Gregory appeals the district court’s order denying Gregory’s motion to compel the Government to file a Federal Rule of Criminal Procedure 35(b) motion. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Gregory v. United States, No. 3:08-cv-00482-FDW, 2009 WL 1021342 (W.D.N.C. Apr. 15, 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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*750Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Bernard Middleton appeals the district court’s order denying his motion for reduction of sentence, 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. Middleton, No. 1:92-cr00348-CMH-3 (E.D. Va. filed Aug. 25; entered Aug. 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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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Anthony Lamar Snipe appeals the district court’s order denying his motion for a sentence reduction under 18 U.S.C. § 3582(c)(2) (2006). We have reviewed the record and find no reversible error. Accordingly, we affirm the district court’s order. United States v. Snipe, No. 2:02-cr-00833-PMD (D.S.C. June 29, 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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PER CURIAM: *
The attorney appointed to represent Dexter Thomas has moved for leave to withdraw and has filed a brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Thomas has not filed a response. Our independent review of the record and counsel’s brief discloses no nonfrivolous issue for appeal. Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is excused from further responsibilities herein, and the APPEAL IS DISMISSED. See 5th Cir. R. 42.2.
Pursuant to 5th Cir R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.
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OPINION
RONALD LEE GILMAN, Circuit Judge.
Irene Engle’s parental rights to her six children were terminated in November 2006 by Michigan’s Oakland County Circuit Court after she failed to prevent her then-husband from sexually abusing their female children over a period of many years. (Compl.lffl 5, 18) The Michigan Supreme Court ultimately affirmed the termination.
Engle then filed a lawsuit in the United States District Court for the Eastern District of Michigan against Oakland County, the Oakland County Circuit Court, and Ismael Ahmed in his official capacity as the Director of the Michigan Department of Human Services (the Defendants). (CompLUf 7-9) She sought injunctive and declaratory relief holding that (1) the statute under which her rights were terminated is unconstitutional as applied to her by the state court, (2) the orders terminating her parental rights are null and void, and (3) she remains the lawful parent of her six children. (Compl. at 11)
Engle’s complaint cited Title 42, Section 1983, of the United States Code, the Americans with Disabilities Act (42 U.S.C. § 12132), and the Rehabilitation Act (29 U.S.C. § 794) as the bases for her suit. (CompU 37) Specifically, she argued that Michigan’s statute that authorizes the termination of parental rights is unconstitutionally vague, and that the Defendants failed to accommodate her disability during the termination process. (Complin 27, 32)
All three Defendants subsequently filed motions to dismiss, arguing that Engle’s suit is barred by the Rooker-Feldman doctrine, which prevents federal courts from hearing “cases brought by state-court losers complaining of injuries caused by state-court judgments ... and inviting district court review and rejection of those judgments.” See Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284, 125 S.Ct. 1517, 161 L.Ed.2d 454 (2005). The district court granted the motions to dismiss, holding that it did not have subject matter jurisdiction over Engle’s lawsuit because she was seeking to remedy “a past injury, the source of which is the state court’s Opinion and Order.” (D. Ct. Op. at 8) (emphasis in original). Engle has timely appealed.
Having carefully considered the record on appeal, the briefs of the parties, and the applicable law, we are satisfied that the district court reached the correct decision in this case. Because the reasoning that supports judgment for the Defendants has been clearly articulated by the district court, the issuance of a detailed written opinion by this court would be *873unduly duplicative. We would add only that even if Rook&r-Feldman does not strip us of jurisdiction to hear Engle’s challenge to the constitutionality of the Michigan statute, claim preclusion does. Engle could have raised her constitutional claim in her state court proceedings, and the record contains no evidence that she. did so. Under the doctrine of claim preclusion, Engle cannot raise now an issue that she previously “had a full and fair opportunity to litigate” in the state court action. Taylor v. Sturgell, 553 U.S. 880, 128 S.Ct. 2161, 2171, 171 L.Ed.2d 155 (2008) (citation and internal quotation marks omitted). Michigan law recognizes that res judicata or claim preclusion principles bar claims that could have been, but were not, brought in a prior action. See Hackley v. Hackley, 426 Mich. 582, 395 N.W.2d 906, 907 (1986) (“In Michigan, the doctrine of res judicata applies ... to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time.”) (citation and internal quotation marks omitted).
The judgment rendered by The Honorable Bernard A. Friedman, United States District Judge for the Eastern District of Michigan, is therefore AFFIRMED on the basis of the reasoning detailed in his Opinion and Order dated September 10, 2008.
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Dismissed in part; affirmed in part by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Willie L. Dumas, III, seeks to appeal the district court’s orders denying relief on his 28 U.S.C.A. § 2255 (West Supp. 2009) motion, construing Dumas’ motion to amend as a motion for reduction of sentence under 18 U.S.C. § 3582(c)(2) (2006), and denying relief under § 3582(c)(2). The order denying § 2255 relief is not appealable unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1) (2006). A certificate of appealability will not issue absent “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (2006). A prisoner satisfies this standard by demonstrating that reasonable jurists would find that any assessment of the constitutional claims by the district court is debatable or wrong and that any dispositive procedural ruling by the district court is likewise debatable. Miller-El v. Cockrell, 537 U.S. 322, 336-38, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003); Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000); Rose v. Lee, 252 F.3d 676, 683-84 (4th Cir.2001). We have independently reviewed the record and conclude that Dumas has not made the requisite showing. Accordingly, we deny a certificate of appealability and dismiss the appeal of the order denying § 2255 relief. Further, we have reviewed the district court’s order *755denying Dumas’ sentence reduction under 18 U.S.C. § 3582(c)(2) and affirm, finding no reversible error. United States v. Dumas, No. 5:04-cr-00058-1 (S.D.W.Va. May 15, 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.
DISMISSED IN PART; AFFIRMED IN PART.
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Dismissed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Thomas E. Smith, Jr., seeks to appeal the district court’s order treating his Fed. R.Civ.P. 60(b) motion as a successive 28 U.S.C.A. § 2255 (West Supp.2009) motion, and dismissing it on that basis.* The order is not appealable unless a circuit justice or judge issues a certificate of appeal-ability. 28 U.S.C. § 2253(c)(1) (2006); Reid v. Angelone, 369 F.3d 363, 369 (4th Cir.2004). A certificate of appealability will not issue absent “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (2006). A prisoner satisfies this standard by demonstrating that reasonable jurists would find that any assessment of the constitutional claims by the district court is debatable or wrong and that any dispositive procedural ruling by the district court is likewise debatable. Miller-El v. Cockrell, 537 U.S. 322, 336-38, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003); Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000); Rose v. Lee, 252 F.3d 676, 683-84 (4th Cir.2001). We have independently reviewed the record and conclude that Smith has not made the requisite showing. Accordingly, we deny a certificate of appealability and dismiss the appeal.
Additionally, we construe Smith’s notice of appeal and informal brief as an application to file a second or successive motion under 28 U.S.C.A. § 2255. United States v. Winestock, 340 F.3d 200, 208 (4th Cir.2003). In order to obtain authorization to file a successive § 2255 motion, a prisoner must assert claims based on either: (1) *767newly discovered evidence, not previously discoverable by due diligence, that would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the movant guilty of the offense; or (2) a new rule of constitutional law, previously unavailable, made retroactive by the Supreme Court to cases on collateral review. 28 U.S.C.A. § 2255(h) (West Supp.2009). Smith’s claims do not satisfy either of these criteria. Therefore, we deny authorization to file a successive § 2255 motion.
We dispense -with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
DISMISSED.
The district court's finding that Smith's motion merely reiterated the claims raised in his original § 2255 was tantamount to a finding that the motion for reconsideration was a successive motion.
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PER CURIAM: *
After a bench trial, Mississippi State University appeals the district court’s judgment that it was not entitled in an underlying lawsuit to a defense or coverage as an additional insured under an insurance policy issued by First Specialty Insurance Corporation to U.S. Aquaculture Licensing, Inc. Reviewing the district court’s findings of fact for clear error and questions of law de novo, see S.E.C. v. Gann, 565 F.3d 932, 936 (5th Cir.2009), we AFFIRM for the following reasons:
1. We agree with the district court that the 2003 and 2004 policies unambiguously limited coverage to the premises of U.S. Aquaculture and did not include the products liability coverage sought by the University. Both policies provided a classification of coverage for buildings or premises. The premium for both policies was based on the square footage of U.S. Aquaculture’s premises. Both policies included a classification limitation that excluded coverage for operations not specifically listed. Under Mississippi law, the plain and unambiguous language of an insurance contract controls the interpretation of the policy. See Whitaker v. T & M Foods, Ltd., 7 So.3d 893, 899 (Miss.2009). Furthermore, the 2004 policy’s designated premises endorsement made clear beyond dispute that the policy was limited to premises liability. We find no merit to the University’s contention that this endorsement was “slipped” into the policy, as we presume that the insured was aware of the contents of a policy that it had an affirmative duty to read. See Leonard v. Nationwide Mut. Ins. Co., 499 F.3d 419, 438 (5th Cir.2007); Cherry v. Anthony, Gibbs, Sage, 501 So.2d 416, 419 (Miss.1987).
2. We disagree with the University’s contention that coverage existed because of the insured contract exception to the exclusion of coverage for liability arising from indemnity agreements. This exception to the exclusion did not negate exclusions under the classification limita*817tion or the designated premises endorsement, which were still applicable. See, e.g., Capital Alliance Ins. Co. v. Cartwright, 236 Ga.App. 554, 512 S.E.2d 666, 668 (1999); cf. Lee R. Russ & Thomas F. Segalla, 2 Couch on Insurance § 22:30, at 22-65 (3d ed. 2009) (“[T]he court must look to the entire contract of insurance for a true understanding of what risks are assumed and what risks are excluded by the company.... [A]n ambiguity in one exclusion does not make all exclusions ambiguous; each separate exclusion must be separately construed.”).
3. The district court’s conclusion that Bill Andrews was an agent of U.S. Aquaculture and was not an agent of Fust Specialty was not clearly erroneous. Andrews did not hold himself out as an agent of the insurer and did not have either actual or apparent authority to act as the insurer’s agent. See Andrew Jackson Life Ins. Co. v. Williams, 566 So.2d 1172, 1180-81 (Miss.1990); see also Leonard, 499 F.3d at 439.
AFFIRMED.
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.
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PER CURIAM: *
The judgment of the district court is affirmed for the reasons given by that *826court. The complaint of the plaintiff states only general conclusions and contains no specific action of the County or plausible grounds for which it could be liable.
AFFIRMED.
Pursuant to 5th Cir R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5tii Cir. R. 47.5.4.
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PER CURIAM: *
Jason Kyle Richards, Texas prisoner # 1037098, appeals the district court’s dismissal of his pro se, in forma pauperis (IFP) civil rights complaint under 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)(1). We review de novo the district court’s dismissal. Geiger v. Jowers, 404 F.3d 371, 373 (5th Cir.2005).
Through the vehicle of 42 U.S.C. § 1983, Richards sought DNA evidence related to his conviction and 20-year sentence for second degree aggravated sexual assault. The district court determined that Richards’s claims were barred by Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994) and Kutzner v. Montgomery County, 303 F.3d 339 (5th Cir.2002), the latter of which held that a petition for habeas corpus relief under 28 U.S.C. § 2254—not § 1983—is the procedural mechanism by which claims that “necessarily imply the invalidity of [a plaintiffs] conviction or sentence” must be brought. Kutzner, 303 F.3d at 340-41 (quoting Heck; 512 U.S. at 486-87, 114 S.Ct. 2364)(alteration in original).
We need not resolve whether Kutzner remains good law or Heck bars Richards’s § 1983 claim for access to DNA evidence because, whether his claims sound in habeas or § 1983, Richards cannot establish the deprivation of a constitutional right. There is no freestanding federal constitutional right to post-conviction access to DNA evidence for testing. Dist. Attorney’s Office for Third Judicial Dist. v. Osborne, — U.S. -, 129 S.Ct. 2308, 2323, 174 L.Ed.2d 38 (2009). Moreover, for purposes of a procedural due process claim, Richards has not demonstrated the facial inadequacy of Texas’s procedures for post-conviction DNA access, and never *827having invoked the state process available to him, he cannot sustain an as-applied challenge. Id. at 2321.
Accordingly, Richards’s appeal is DISMISSED.
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under die limited circumstances set forth in 5th Cir. R. 47.5.4.
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PER CURIAM: *
Petitioner Dennis Bondkraft Bruce, a native and citizen of Jamaica, seeks review of the Board of Immigration Appeals’ (Board) order that affirmed the removal decision by the Immigration Judge (IJ) on the basis of new charges of removability. We remanded Bruce’s second appeal to the Board for review following the Supreme Court’s decision in Lopez v. Gonzales, 549 U.S. 47, 127 S.Ct. 625, 166 L.Ed.2d 462 (2006) for the proper application of Bruce’s drug conviction and qualification as an aggravated felony under the Controlled Substances Act (CSA). The Board reaffirmed its earlier decision that the convictions constitute a drug trafficking aggravated felony because the marijuana convictions could have been punishable under the recidivist provision of 21 U.S.C. § 844(a) (2006). Thus, Bruce was subject to removal because of his convictions and rendered ineligible for cancellation of removal under the Immigration and Nationality Act (INA).
This Court has statutory jurisdiction to review final orders of removal. INA § 242, 8 U.S.C. § 1252. However, this jurisdiction is restricted by INA § 242(a)(2)(C), which states that courts do not have jurisdiction “to review any final order of removal against an alien” who is removed for crimes relating to a controlled substance under Section 237(a)(2)(B)(i). 8 U.S.C. § 1252(a)(2)(C). Additionally, we are generally forbidden from reviewing removal orders for cases in which the alien has been convicted of an aggravated felony. Carachuri-Rosendo v. Holder, 570 F.3d 263, 265 (5th Cir.2009) (citations omitted). Notwithstanding, we retain jurisdiction to review facts and issues involving a question of law. § 1252(a)(2)(D). Because Bruce’s petition falls within this exception, we review the Board’s rulings of law de novo. See Carachuri-Rosendo, 570 F.3d at 265.
Bruce specifically challenges the determination that his convictions for possession of a controlled substance constitute “aggravated felonies” under 8 U.S.C. § 1101(a)(43)(B). Bruce contends that because he was never convicted under a recidivist statute, that his offenses should *848not be considered aggravated felonies. For the reasons set forth below, we dismiss his petition in part for lack of jurisdiction and deny in part because the Board correctly decided that Bruce’s convictions constitute an aggravated felony.
Earlier this year, we noted that federal statutes referring to drug trafficking also includes recidivist state possession offenses. See Carachuri-Rosendo, 570 F.3d at 265 (quoting United States v. Cepeda-Rios, 530 F.3d 333, 335 (5th Cir.2008)). The Supreme Court in Lopez decided that if the conduct proscribed by the state offense could have been prosecuted under the CSA as a felony, then the state conviction qualifies as an aggravated felony under 8 U.S.C. § 1101(a)(43)(B). Lopez, 549 U.S. at 60, 127 S.Ct. 625. In United States v. Sanchez-Villalobos, 412 F.3d 572, 576 (5th Cir.2005), this Court concluded that two state convictions for possession could be punished as a felony under the CSA’s recidivism provisions.1 Later, this Court in Cepeda-Rios stated its approach to this issue from Sanchez-Villalobos was still viable after Lopez and again decided that a second state possession offense punishable as a felony under federal law qualified as an aggravated felony under 8 U.S.C. § 1101(a)(43)(B). 530 F.3d at 334-35. The Carachuri-Rosendo court affirmed the Board’s en-banc decision determining that even though the petitioner had been convicted twice of misdemeanor possession charges but was not charged as a recidivist, the convictions met the definition of an aggravated felony under the CSA. 570 F.3d at 265.
Here, the facts are similar to those in Carachuri-Rosendo because Bruce asserts that his state possession convictions cannot meet the definition of an aggravated felony under the CSA since he was not charged as a recidivist. This argument is inapposite to what the Carachuri-Rosendo court explicitly stated. 570 F.3d at 265. Bruce’s convictions for possession of a controlled substance constitute an aggravated felony under INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B) because his third offense would have been punishable under the recidivist provision of 21 U.S.C. § 844(a) as a felony, and by extension, a drug trafficking aggravated felony. Thus, Bruce is removable under INA § 237(a)(2)(B)(i), 8 U.S.C. § 1252(a)(2)(C).
Bruce also argues that the Board abused its discretion for failing to address his motion to remand and motion to change venue and that these failures resulted in “substantial constitutional challenges.” Bruce’s assertions do not involve a constitutional claim; instead they merely ask this Court to replace the Board’s rulings with a new outcome. See Hadwani v. Gonzales, 445 F.3d 798, 800-01 (5th Cir.2006) (stating that mere propositions constituting abuse of discretion arguments cannot be cloaked in constitutional garb and pass as a constitutional claim); see also Torres-Aguilar v. INS, 246 F.3d 1267, 1271 (9th Cir.2001) (preventing the petitioner from establishing jurisdiction by cloaking arguments in constitutional garb). Because Bruce merely disagrees with the Board’s decision and does not raise a constitutional claim or question of law on these challenges, we lack jurisdiction to review.
Accordingly, the petition for review is DENIED.
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.
. The Supreme Court in Lopez v. Gonzales, 549 U.S. 47, 127 S.Ct. 625, 166 L.Ed.2d 462 (2006), abrogated one of the Sanchez-Villalobos’ holdings but left intact this determination. See Carachuri-Rosendo, 570 F.3d at 266-67.
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PER CURIAM: *
The attorney appointed to represent Camerino DeJesus-Rosales has moved for leave to withdraw and has filed a brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). DeJesus-Rosales has not filed a response. Our independent review of the record and counsel’s brief discloses no non-frivolous issue for appeal. Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is excused from further responsibilities herein, and the APPEAL IS DISMISSED. See 5th Cir. R. 42.2.
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under *867the limited circumstances set forth in 5th Cir. R. 47.5.4.
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PER CURIAM: *
The attorney appointed to represent Christopher Allen Page has moved for leave to withdraw and has filed a brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Page has not filed a response. Our independent review of the record and counsel’s brief discloses no nonfrivolous issue for appeal. Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is excused from further responsi*868bilities herein, and the APPEAL IS DISMISSED. See 5th Cir. R. 42.2.
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.
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ORDER
A jury convicted Maurice Harrison of distributing more than 50 grams of cocaine base in violation of 21 U.S.C. § 841(a)(1). At sentencing, the district court calculated the applicable range under the United States Sentencing Guidelines. The district court concluded that based on 63 grams of cocaine base (crack cocaine), Harrison’s base offense level was 32. Harrison received a two-level enhancement for obstruction of justice which resulted in an adjusted offense level of 34. Harrison’s criminal history category of I produced a range under the guidelines of 151 to 188 months’ imprisonment. The district court sentenced Harrison to 151 months in prison.
Harrison appealed his conviction and sentence. We affirmed his conviction and concluded the district court had properly calculated the guidelines range. United States v. Harrison, 431 F.3d 1007 (7th Cir.2005). Because Harrison had been sentenced before the Supreme Court’s decision in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), we issued a limited remand in accordance with the procedure set forth in United States v. Paladino, 401 F.3d 471 (7th Cir.2005). Our limited remand asked the district court whether it would have imposed the same sentence had it known the guide*954lines were advisory. Harrison, 431 F.3d at 1014.
The district court responded that had the sentencing guidelines been advisory when it originally sentenced Harrison, it would have imposed the same sentence of 151 months. The district court also stated that it had given the parties an opportunity to submit their views in writing. The district court noted that Harrison had submitted his views in a pro se motion for appointment of counsel (he asked that he receive a sentence of 121 months), and it later struck his pro se motion to reconsider.
We decline Harrison’s request to remand this case to a different judge with instructions for resentencing. Harrison’s case is on plain error review. See Harrison, 431 F.3d at 1014; Paladino, 401 F.3d at 483-84. The district court’s decision on remand reflects that Booker did not affect the sentence Harrison received. In particular, the district court stated that under 18 U.S.C. § 3553(a), it would still impose a sentence at the low end of the now advisory guidelines range given the circumstances of Harrison’s conduct, his criminal history, his lack of remorse and lack of recidivism, and the necessity of public protection. The district court noted further that Harrison had perjured himself during trial and also that credible evidence had been presented that Harrison had sold crack in the past. Because the outcome would have been the same had the guidelines been advisory, there can be no “plain error.” See United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (to warrant reversal on plain error review, error must have affected the appellant’s substantial rights, which in the ordinary case means the appellant must demonstrate that it “affected the outcome of the district court proceedings,” and appellate court has discretion to remedy the error if it seriously affects the fairness, integrity, or public reputation of judicial proceedings). We also note that although Harrison maintains that neither he nor his appellate counsel received the district court’s order inviting the parties to submit their views upon remand by January 9, 2006, Harrison’s appellate counsel acknowledges that the government served its December 19, 2005 submission regarding the Paladino remand upon appellate counsel, which was well in advance of the submission deadline. Finally, the decision to sentence Harrison to the low end of the guidelines range was reasonable under the circumstances. We therefore affirm the judgment of the district court.
Another development has also taken place. Although a statutory mandatory minimum sentence of 10 years still applies, see 21 U.S.C. § 841(b)(1)(A), the United States Sentencing Commission has issued new guidelines that retroactively reduced the 100:1 ratio between crack cocaine and powder cocaine guideline ranges that applied when Harrison was sentenced. See U.S.S.G. Supp. to App. C., pp. 226-31 (2007) (Amendment 706); U.S.S.G. Supp. to App. C., p. 253 (Amendment 713). The new guideline range for a person held responsible for 63 grams of crack cocaine with a two-level enhancement and a criminal history category of I is 121 to 151 months. This means that Harrison can now file a motion for a reduction in his sentence pursuant to 18 U.S.C. § 3582(c)(2). (The district court may also reduce the sentence on its own initiative, or the director of the bureau of prisons may file a motion instead of the defendant. 18 U.S.C. 3582(c)(2).).
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Dismissed in part; affirmed in part by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Willie L. Dumas, III, seeks to appeal the district court’s orders denying relief on his 28 U.S.C.A. § 2255 (West Supp. 2009) motion, construing Dumas’ motion to amend as a motion for reduction of sentence under 18 U.S.C. § 3582(c)(2) (2006), and denying relief under § 3582(c)(2). The order denying § 2255 relief is not appealable unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1) (2006). A certificate of appealability will not issue absent “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (2006). A prisoner satisfies this standard by demonstrating that reasonable jurists would find that any assessment of the constitutional claims by the district court is debatable or wrong and that any dispositive procedural ruling by the district court is likewise debatable. Miller-El v. Cockrell, 537 U.S. 322, 336-38, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003); Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000); Rose v. Lee, 252 F.3d 676, 683-84 (4th Cir.2001). We have independently reviewed the record and conclude that Dumas has not made the requisite showing. Accordingly, we deny a certificate of appealability and dismiss the appeal of the order denying § 2255 relief. Further, we have reviewed the district court’s order *755denying Dumas’ sentence reduction under 18 U.S.C. § 3582(c)(2) and affirm, finding no reversible error. United States v. Dumas, No. 5:04-cr-00058-1 (S.D.W.Va. May 15, 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.
DISMISSED IN PART; AFFIRMED IN PART.
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Dismissed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Thomas E. Smith, Jr., seeks to appeal the district court’s order treating his Fed. R.Civ.P. 60(b) motion as a successive 28 U.S.C.A. § 2255 (West Supp.2009) motion, and dismissing it on that basis.* The order is not appealable unless a circuit justice or judge issues a certificate of appeal-ability. 28 U.S.C. § 2253(c)(1) (2006); Reid v. Angelone, 369 F.3d 363, 369 (4th Cir.2004). A certificate of appealability will not issue absent “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (2006). A prisoner satisfies this standard by demonstrating that reasonable jurists would find that any assessment of the constitutional claims by the district court is debatable or wrong and that any dispositive procedural ruling by the district court is likewise debatable. Miller-El v. Cockrell, 537 U.S. 322, 336-38, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003); Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000); Rose v. Lee, 252 F.3d 676, 683-84 (4th Cir.2001). We have independently reviewed the record and conclude that Smith has not made the requisite showing. Accordingly, we deny a certificate of appealability and dismiss the appeal.
Additionally, we construe Smith’s notice of appeal and informal brief as an application to file a second or successive motion under 28 U.S.C.A. § 2255. United States v. Winestock, 340 F.3d 200, 208 (4th Cir.2003). In order to obtain authorization to file a successive § 2255 motion, a prisoner must assert claims based on either: (1) *767newly discovered evidence, not previously discoverable by due diligence, that would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the movant guilty of the offense; or (2) a new rule of constitutional law, previously unavailable, made retroactive by the Supreme Court to cases on collateral review. 28 U.S.C.A. § 2255(h) (West Supp.2009). Smith’s claims do not satisfy either of these criteria. Therefore, we deny authorization to file a successive § 2255 motion.
We dispense -with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
DISMISSED.
The district court's finding that Smith's motion merely reiterated the claims raised in his original § 2255 was tantamount to a finding that the motion for reconsideration was a successive motion.
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PER CURIAM: *
The judgment of the district court is affirmed for the reasons given by that *826court. The complaint of the plaintiff states only general conclusions and contains no specific action of the County or plausible grounds for which it could be liable.
AFFIRMED.
Pursuant to 5th Cir R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5tii Cir. R. 47.5.4.
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PER CURIAM: *
Jason Kyle Richards, Texas prisoner # 1037098, appeals the district court’s dismissal of his pro se, in forma pauperis (IFP) civil rights complaint under 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)(1). We review de novo the district court’s dismissal. Geiger v. Jowers, 404 F.3d 371, 373 (5th Cir.2005).
Through the vehicle of 42 U.S.C. § 1983, Richards sought DNA evidence related to his conviction and 20-year sentence for second degree aggravated sexual assault. The district court determined that Richards’s claims were barred by Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994) and Kutzner v. Montgomery County, 303 F.3d 339 (5th Cir.2002), the latter of which held that a petition for habeas corpus relief under 28 U.S.C. § 2254—not § 1983—is the procedural mechanism by which claims that “necessarily imply the invalidity of [a plaintiffs] conviction or sentence” must be brought. Kutzner, 303 F.3d at 340-41 (quoting Heck; 512 U.S. at 486-87, 114 S.Ct. 2364)(alteration in original).
We need not resolve whether Kutzner remains good law or Heck bars Richards’s § 1983 claim for access to DNA evidence because, whether his claims sound in habeas or § 1983, Richards cannot establish the deprivation of a constitutional right. There is no freestanding federal constitutional right to post-conviction access to DNA evidence for testing. Dist. Attorney’s Office for Third Judicial Dist. v. Osborne, — U.S. -, 129 S.Ct. 2308, 2323, 174 L.Ed.2d 38 (2009). Moreover, for purposes of a procedural due process claim, Richards has not demonstrated the facial inadequacy of Texas’s procedures for post-conviction DNA access, and never *827having invoked the state process available to him, he cannot sustain an as-applied challenge. Id. at 2321.
Accordingly, Richards’s appeal is DISMISSED.
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under die limited circumstances set forth in 5th Cir. R. 47.5.4.
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