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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 David Flores has moved for leave to withdraw and has filed a brief in accordance *866with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Flores 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 5tii 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 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
Roberto Sanchez appeals the district court’s decision to include within his advisory guideline computation a three-level increase for being a manager or supervisor of a criminal activity involving five or more participants (namely, drug dealing). U.S.S.G. § 3Bl.l(b). The court then sentenced Sanchez consistently with that range. Finding no error in either the district court's understanding of the scope of the Guideline or in its factual findings, we affirm.
*958I
Sanchez pleaded guilty to conspiracy to possess cocaine with intent to distribute, possession with intent to distribute cocaine, and use of a communication facility in connection with a felony narcotics offense. See 21 U.S.C. §§ 841(a)(1), 848(b), 846; 18 U.S.C. § 2. At this point, Sanchez is not taking issue with the drug type and quantity that dictated his base offense level. Instead, he focuses on the recommendation in the Presentence Investigation Report that his offense level should be increased by three for his role in the offense. See U.S.S.G. § 3Bl.l(b). The writer of the PSR concluded that this increase was proper because the offense involved five participants, and Sanchez exerted authority over co-defendant Raul Gallegos Rojas. Sanchez objected to the recommended increase.
Sanchez urged that his case is analogous to United States v. Mankiewicz, in which this court reversed an increase in the defendant’s sentence under § 3Bl.l(e) after concluding that the evidence did not show that he had exerted the “sort of real and direct influence, aimed at furthering the criminal activity, that the enhancement was intended to punish.” 122 F.3d 399, 406 (7th Cir.1997) (internal quotations and citation omitted). The district court, however, saw things otherwise. It determined that the central point of this conspiracy was to obtain cocaine from California, transport it to Chicago, and then transport money back to California. Relying on what it characterized as undisputed facts, the court found that Rojas was under Sanchez’s control with respect to the subject matter of the conspiracy (drugs and money) because Sanchez recruited Rojas to pick up cocaine in California, deliver it to Chicago, and return to California with payment. In addition, Sanchez bought the truck Rojas used in the trips and directed Rojas’s actions during those trips. The district court overruled Sanchez’s objection, applied the increased base offense level, and sentenced Sanchez to 151 months’ imprisonment.
II
Although Sanchez suggests both that a de novo standard governs the district court’s decision to apply § 3B1.1 and that an abuse of discretion approach might apply, in fact we use the clear error standard for reviewing a determination of the defendant’s role in the offense. See, e.g., United States v. Johnson, 489 F.3d 794, 796 (7th Cir.2007); United States v. Carrera, 259 F.3d 818, 826 (7th Cir.2001).
Section 3Bl.l(b) instructs a sentencing court to increase a defendant’s base offense level by three “[i]f the defendant was a manager or supervisor (but not an organizer or leader) and the criminal activity involved five or more participants or was otherwise extensive.” This subsection describes a middle ground between § 3Bl.l(a), which provides a four-level increase for a defendant who was an organizer or leader of an offense involving extensive criminal activity, and § 3Bl.l(c), which provides a two-level increase for a defendant who was an organizer, leader, manager, or supervisor of less extensive criminal activity than that covered by subsections (a) and (b). The commentary to § 3B1.1 defines “participant” as someone who is “criminally responsible for the commission of the offense, but need not have been convicted.” U.S.S.G. § 3B1.1 cmt. n. 1. It also identifies a number of factors that help the court to distinguish among these levels of responsibility. The list includes:
the exercise of decision making authority, the nature of participation in the commission of the offense, the recruitment of accomplices, the claimed right to a larger share of the fruits of the *959crime, the degree of participation in planning or organizing the offense, the nature and scope of the illegal activity, and the degree of control and authority exercised over others.
U.S.S.G. § 3B1.1 cmt. n. 4. See United States v. Howell, 527 F.3d 646, 649 (7th Cir.2008). The background note to § 3B1.1 explains that the purpose of this enhancement is to ensure that a defendant’s sentence is commensurate with his “relative responsibility” for the commission of an offense. U.S.S.G. § 3B1.1 cmt. background.
Sanchez asserts that there was insufficient evidence to find that he managed or supervised Rojas. Relying on § 3B1.1 commentary note 4, he maintains that the record is devoid of evidence that he exercised decision-making authority, claimed a larger share of the fruits of the crime, planned anything other than Rojas’s trips, or had control over anyone. See U.S.S.G. § 3B1.1 cmt. n. 4. Instead, he contends that the district judge was required to see his actions as indistinguishable from those of the defendant in Mankiewicz, who recruited his father to assist him in receiving a single drug delivery, then directed him where to stack bales of marijuana in a warehouse and asked him to accompany the drug runner to a motel where the runner would meet with the head of the drug enterprise. 122 F.3d at 406.
But Sanchez’s role was materially different from Mankiewicz’s. Sanchez recruited Rojas to act as a courier transporting drugs and drug proceeds across the country, purchased a vehicle for Rojas to use during these trips and put it in Rojas’s name, ensured that the vehicle had a secret compartment for holding drugs, and told Rojas where to make the drug pickups and deliveries. Like the defendant in United States v. Vargas, Sanchez was “principally responsible for arranging the logistics of cocaine deliveries or payments.” 16 F.3d 155, 160 (7th Cir.1994). We have held before that “[ojrchestrating or coordinating activities performed by others makes a particular defendant a manager or supervisor.” United States v. Martinez, 520 F.3d 749, 752 (7th Cir.2008); see also Vargas, 16 F.3d at 160 (approving a § 3B1.1 increase for a defendant who arranged transportation logistics).
Moreover, control over another participant is an especially important signal, whether or not it is the “sine qua non for an enhancement under § 3B1.1.” See United States v. Gonzalez-Mendoza, 584 F.3d 726, 729 (7th Cir.2009). And here there was ample evidence that Sanchez exercised control over Rojas: Rojas told FBI agents that he transported drugs at Sanchez’s direction, and that it was Sanchez who put him in touch with a dealer in California, told him the pick-up and delivery locations, and paid him. The district court did not clearly err in deciding that Sanchez was a manager for the purposes of § 3Bl.l(b).
Sanchez also contends that the district court applied § 3Bl.l(b) based solely on the government’s recommendation, without addressing his objections to the increase or relying on other specific evidence. The record belies that. The court thoroughly considered all the evidence before drawing a conclusion, and it explained its reasoning adequately.
In the alternative, Sanchez argues that even if the district court correctly characterized him as a manager or supervisor, it was nonetheless wrong to impose a three-level increase in his base offense level. Relying on Martinez, 520 F.3d 749, Sanchez maintains that the court should have applied § 3Bl.l(c) (which calls for a two-level increase) instead of § 3Bl.l(b), because he supervised fewer than five people in coordinating the transportation of the drugs and money. In Martinez, the dis*960trict court concluded that the defendant should receive an increase under § 3Bl.l(c) because his role was to supervise the “delivery logistics,” which involved only two other people. Id. at 752. But this court noted that the defendant “received a break” when the district court increased his base offense level by two because “a defendant who acts as a manager or supervisor in a criminal activity involving at least four other participants should receive a three-level increase even if he managed or supervised just one of the participants.” Id.
Here, the district court concluded that the facts did not support “fractionalizing” the conspiracy into transport and distribution subdivisions and found, based on undisputed facts, that Sanchez was a manager and five or more people were involved in the conspiracy. The record adequately supports the court’s conclusion about the number of participants: Sanchez pleaded guilty to conspiracy with three named co-defendants, and there were at least two unindicted co-conspirators. As this court explained in United States v. McGuire, these findings end the inquiry: “The plain language of § 3B 1.1(b) requires only that a defendant was a manager ‘and the criminal activity involved five or more participants’—not that a defendant managed, or controlled, the five or more participants.” 957 F.2d 310, 316 (7th Cir.1992). The district court did not clearly err in applying a three-level increase under § 3Bl.l(b) rather than a two-level increase under § 3Bl.l(c).
Accordingly, we Affirm the district court’s judgment.
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ORDER
Derek Gilna pleaded guilty to bank fraud, 18 U.S.C. § 1344, and was sentenced to 78 months’ imprisonment. After Gilna filed a notice of appeal, the government moved to dismiss based on Gilna’s promise in his plea agreement to forgo any appeal of his conviction or sentence. Gilna responded to the government’s motion by asserting that his severe depression and alcoholism rendered his appeal waiver involuntary. At the same time, however, Gilna has said explicitly that he “does not seek to overturn his plea of guilty,” and so we will not inquire into the adequacy of the plea colloquy or the voluntariness of the guilty plea. See United States v. Knox, 287 F.3d 667, 671-72 (7th Cir.2002). And since the appeal waiver in the plea agreement stands or falls with the guilty plea, the waiver binds Gilna, and his appeal must be dismissed. See United States v. Wilson, 481 F.3d 475, 483 (7th Cir.2007); United States v. Nave, 302 F.3d 719, 721 (7th Cir.2002); United States v. Hare, 269 F.3d 859, 860-61 (7th Cir.2001).
The government’s motion is GRANTED, and the appeal is DISMISSED.
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ORDER
Said Ayesh pleaded guilty to attempted international parental kidnaping. See 18 U.S.C. § 1204(a). He was sentenced to a term of 35 months, which was 5 months more than the upper end of his guideline range (24-30 months) and 1 month short of the statutory maximum. Ayesh challenges his sentence on this appeal. Here are the facts.
Ayesh lived for several years in Illinois with Munah Bamieh before the pair went back to Jordan, where both are citizens. When Bamieh became pregnant, she returned alone to the United States. The couple had agreed that their child should be born here to gain citizenship, but after the birth Bamieh refused to rejoin Ayesh in Jordan and even denied that he was the father of her child. Ayesh, in turn, entered the United States illegally, and eventually confirmed his paternity and won visitation in the Circuit Court of Cook County.
Threats from Ayesh and members of his family did not persuade Bamieh to go back to Jordan with the child, so Ayesh plotted to kidnap her. He acquired a Jordanian passport for the child, forged Illinois identity documents with aliases for the two of them, and stole his own passport from the office of a lawyer who apparently was holding it under a court order. He made financial arrangements to pay for two one-way -lane tickets to Jordan that he planned to acquire in New York. Then, during a routine visitation, Ayesh took the child out of the geographical boundaries prescribed by the Illinois state court and traveled with her to Indiana, where he paid two accomplices for a ride to New York. They made it as far as Toledo, Ohio, before they were stopped.
The district court adopted the factual findings in the presentence investigation report, which detailed a conviction for battering a woman whose ah* conditioner Ayesh had been hired to fix, as well as reports underlying arrests for threatening Bamieh and battering a former domestic partner and another female customer. The district court calculated a guidelines imprisonment range of 24 to 30 months, which Ayesh concedes is correct. In going above that range, the district court explained that a longer term was necessary to deter Ayesh from committing more crimes. The court further observed that Ayesh’s plan required extensive premeditation and, if successful, would likely have deprived Bamieh of access to her child. The court highlighted the need to promote respect for federal and state law, given Ayesh’s disregard for both.
On appeal, Ayesh first argues that the district court improperly inflated the *969need for deterrence by considering not only his conviction, but also the conduct underlying his arrests that did not result in conviction. Yet even under the old regime of mandatory guidelines, U.S.S.G. § 4A1.3 allowed a sentencing court to consider rehable evidence of adult criminal conduct not resulting in conviction. See United States v. Johnson, 427 F.3d 423, 428 (7th Cir.2005); United States v. Terry, 930 F.2d 542, 545 (7th Cir.1991). Ayesh did not contest the reliability of the information incorporated into the presentence report, except to contend at oral argument that evidence of an offense is never reliable until it results in conviction. But that is not the law.
Ayesh next argues that the district court grounded its sentencing decision not in the factors set out in 18 U.S.C. § 3553(a), but instead in its bias against a man whose actions it deemed “reprehensible,” and in naked speculation that Bamieh’s chances of regaining custody would have been slim if the kidnaping had succeeded. But kidnaping attempts are reprehensible, and saying so doesn’t make a judge biased. And the accusation of “speculation” is unfounded; the court had before it the government’s undisputed evidence that the United States lacks a legal mechanism for enforcing state court custody determinations in Jordan. Plus, securing the return of kidnaping victims from a country like Jordan, which is not a party to the Hague Convention on the Civil Aspects of International Child Abduction, seems highly unlikely at best.
Ayesh is on better footing when he argues that major variances from the guidelines range need stronger justifications than minor ones. See Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 596-97, 169 L.Ed.2d 445 (2007); United States v. Presbitero, 569 F.3d 691, 707 (7th Cir.2009). But see United States v. Bartlett, 567 F.3d 901, 909 (7th Cir.2009) (clarifying that district courts need not explain their decisions “from the Guidelines’ perspective”). Yet a variance of 5 months above a range ending at 30 isn’t very large, and the district court here gave adequate reasons for the sentence it imposed, consistent with the § 3553(a) sentencing factors. See United States v. McIntyre, 531 F.3d 481, 483 (7th Cir.2008).
Finally, Ayesh argues, based on § 3553(a)(6), that he must be resentenced to avoid causing a nationwide sentencing disparity. But the perceived disparity is illusory; his sentence is actually lower than the sentences imposed in half of the cases cited by the parties.' In any event, § 3553(a)(6) addresses only tmwarranted disparities, see United States v. Statham, 581 F.3d 548, 556 (7th Cir.2009); Bartlett, 567 F.3d at 908, 909, and the district court here sufficiently justified a sentence 5 months above the guidelines range.
Accordingly, the judgment of the district court is AFFIRMED.
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PER CURIAM.
Owen McMullen appeals the district court’s1 order denying his motion for a reduction of his sentence pursuant to 18 U.S.C. § 3582(c)(2) and Amendment 706 to the Sentencing Guidelines. We find no abuse of discretion in the district court’s decision not to reduce McMullen’s sentence, as the court had considered the amended Guidelines range at McMullen’s request when he was sentenced, although the amendment was not yet in effect. See U.S.S.G. § lB1.10(b)(l) (in determining whether reduction is warranted, court should determine amended Guidelines range that would have been applicable if amended Guidelines had been in effect); United States v. Curry, 584 F.3d 1102, 1103-1104 (8th Cir.2009) (standard of review).
Accordingly, the judgment is affirmed, and counsel is granted leave to withdraw.
. The Honorable William R. Wilson, Jr., United States District Judge for the Eastern District of Arkansas.
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PER CURIAM.
In these consolidated appeals, Wendell O’Neal challenges adverse judgments entered in three separate actions, all of which asserted claims arising from alleged civil rights and other violations in connection with O’Neal’s arrest and conviction for trespassing in August 2005, and his subsequent efforts to obtain records related to the incident. Following careful review of the district court’s1 judgments and O’Neal’s arguments on appeal, we find no basis for reversal. Accordingly, we affirm. See 8th Cir. R. 47B. O’Neal’s pending motions are denied.
. The Honorable Ann D. Montgomery, United States District Judge for the District of Minnesota, adopting the reports and recommendations of the Honorable Janie S. Mayeron, United States Magistrate Judge for the District of Minnesota.
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MEMORANDUM **
Toy Terrell Smith, a California state prisoner, appeals pro se from the district court’s summary judgment in his 42 U.S.C. § 1983 action claiming that prison officials were deliberately indifferent to his mental health needs. We have jurisdiction under 28 U.S.C. § 1291. We review de novo, Taylor v. List, 880 F.2d 1040, 1044 (9th Cir.1989), and we affirm.
The district court properly granted summary judgment on the claims against Associate Warden Kirkland because Smith failed to raise a triable issue as to whether Kirkland knew of and disregarded an excessive risk to Smith’s health, as required by Fanner v. Brennan, 511 U.S. 825, 837, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). Nothing in the record could have given Kirkland such knowledge. Various medical reports and Smith’s own statements at the classification committee hearings indicated that Smith did not have mental health needs. Cf. Shapley v. Nev. Bd. of State Prison Comm’rs, 766 F.2d 404, 408 (9th Cir.1985) (recognizing that prison officials should defer to medical professionals on medical matters). At most, Smith presented a difference of opinion with medical professionals, which does not amount to deliberate indifference. See Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir.1989).
The district court properly granted summary judgment on the claims against Director Woodford because Smith failed to raise a triable issue as to whether she personally decided his inmate appeal, acted in other ways to cause his constitutional rights to be violated, or knew that her subordinates who denied his director’s lev*11el appeal were violating his rights. See Taylor, 880 F.2d at 1045.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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ORDER
Roberto Sanchez appeals the district court’s decision to include within his advisory guideline computation a three-level increase for being a manager or supervisor of a criminal activity involving five or more participants (namely, drug dealing). U.S.S.G. § 3Bl.l(b). The court then sentenced Sanchez consistently with that range. Finding no error in either the district court's understanding of the scope of the Guideline or in its factual findings, we affirm.
*958I
Sanchez pleaded guilty to conspiracy to possess cocaine with intent to distribute, possession with intent to distribute cocaine, and use of a communication facility in connection with a felony narcotics offense. See 21 U.S.C. §§ 841(a)(1), 848(b), 846; 18 U.S.C. § 2. At this point, Sanchez is not taking issue with the drug type and quantity that dictated his base offense level. Instead, he focuses on the recommendation in the Presentence Investigation Report that his offense level should be increased by three for his role in the offense. See U.S.S.G. § 3Bl.l(b). The writer of the PSR concluded that this increase was proper because the offense involved five participants, and Sanchez exerted authority over co-defendant Raul Gallegos Rojas. Sanchez objected to the recommended increase.
Sanchez urged that his case is analogous to United States v. Mankiewicz, in which this court reversed an increase in the defendant’s sentence under § 3Bl.l(e) after concluding that the evidence did not show that he had exerted the “sort of real and direct influence, aimed at furthering the criminal activity, that the enhancement was intended to punish.” 122 F.3d 399, 406 (7th Cir.1997) (internal quotations and citation omitted). The district court, however, saw things otherwise. It determined that the central point of this conspiracy was to obtain cocaine from California, transport it to Chicago, and then transport money back to California. Relying on what it characterized as undisputed facts, the court found that Rojas was under Sanchez’s control with respect to the subject matter of the conspiracy (drugs and money) because Sanchez recruited Rojas to pick up cocaine in California, deliver it to Chicago, and return to California with payment. In addition, Sanchez bought the truck Rojas used in the trips and directed Rojas’s actions during those trips. The district court overruled Sanchez’s objection, applied the increased base offense level, and sentenced Sanchez to 151 months’ imprisonment.
II
Although Sanchez suggests both that a de novo standard governs the district court’s decision to apply § 3B1.1 and that an abuse of discretion approach might apply, in fact we use the clear error standard for reviewing a determination of the defendant’s role in the offense. See, e.g., United States v. Johnson, 489 F.3d 794, 796 (7th Cir.2007); United States v. Carrera, 259 F.3d 818, 826 (7th Cir.2001).
Section 3Bl.l(b) instructs a sentencing court to increase a defendant’s base offense level by three “[i]f the defendant was a manager or supervisor (but not an organizer or leader) and the criminal activity involved five or more participants or was otherwise extensive.” This subsection describes a middle ground between § 3Bl.l(a), which provides a four-level increase for a defendant who was an organizer or leader of an offense involving extensive criminal activity, and § 3Bl.l(c), which provides a two-level increase for a defendant who was an organizer, leader, manager, or supervisor of less extensive criminal activity than that covered by subsections (a) and (b). The commentary to § 3B1.1 defines “participant” as someone who is “criminally responsible for the commission of the offense, but need not have been convicted.” U.S.S.G. § 3B1.1 cmt. n. 1. It also identifies a number of factors that help the court to distinguish among these levels of responsibility. The list includes:
the exercise of decision making authority, the nature of participation in the commission of the offense, the recruitment of accomplices, the claimed right to a larger share of the fruits of the *959crime, the degree of participation in planning or organizing the offense, the nature and scope of the illegal activity, and the degree of control and authority exercised over others.
U.S.S.G. § 3B1.1 cmt. n. 4. See United States v. Howell, 527 F.3d 646, 649 (7th Cir.2008). The background note to § 3B1.1 explains that the purpose of this enhancement is to ensure that a defendant’s sentence is commensurate with his “relative responsibility” for the commission of an offense. U.S.S.G. § 3B1.1 cmt. background.
Sanchez asserts that there was insufficient evidence to find that he managed or supervised Rojas. Relying on § 3B1.1 commentary note 4, he maintains that the record is devoid of evidence that he exercised decision-making authority, claimed a larger share of the fruits of the crime, planned anything other than Rojas’s trips, or had control over anyone. See U.S.S.G. § 3B1.1 cmt. n. 4. Instead, he contends that the district judge was required to see his actions as indistinguishable from those of the defendant in Mankiewicz, who recruited his father to assist him in receiving a single drug delivery, then directed him where to stack bales of marijuana in a warehouse and asked him to accompany the drug runner to a motel where the runner would meet with the head of the drug enterprise. 122 F.3d at 406.
But Sanchez’s role was materially different from Mankiewicz’s. Sanchez recruited Rojas to act as a courier transporting drugs and drug proceeds across the country, purchased a vehicle for Rojas to use during these trips and put it in Rojas’s name, ensured that the vehicle had a secret compartment for holding drugs, and told Rojas where to make the drug pickups and deliveries. Like the defendant in United States v. Vargas, Sanchez was “principally responsible for arranging the logistics of cocaine deliveries or payments.” 16 F.3d 155, 160 (7th Cir.1994). We have held before that “[ojrchestrating or coordinating activities performed by others makes a particular defendant a manager or supervisor.” United States v. Martinez, 520 F.3d 749, 752 (7th Cir.2008); see also Vargas, 16 F.3d at 160 (approving a § 3B1.1 increase for a defendant who arranged transportation logistics).
Moreover, control over another participant is an especially important signal, whether or not it is the “sine qua non for an enhancement under § 3B1.1.” See United States v. Gonzalez-Mendoza, 584 F.3d 726, 729 (7th Cir.2009). And here there was ample evidence that Sanchez exercised control over Rojas: Rojas told FBI agents that he transported drugs at Sanchez’s direction, and that it was Sanchez who put him in touch with a dealer in California, told him the pick-up and delivery locations, and paid him. The district court did not clearly err in deciding that Sanchez was a manager for the purposes of § 3Bl.l(b).
Sanchez also contends that the district court applied § 3Bl.l(b) based solely on the government’s recommendation, without addressing his objections to the increase or relying on other specific evidence. The record belies that. The court thoroughly considered all the evidence before drawing a conclusion, and it explained its reasoning adequately.
In the alternative, Sanchez argues that even if the district court correctly characterized him as a manager or supervisor, it was nonetheless wrong to impose a three-level increase in his base offense level. Relying on Martinez, 520 F.3d 749, Sanchez maintains that the court should have applied § 3Bl.l(c) (which calls for a two-level increase) instead of § 3Bl.l(b), because he supervised fewer than five people in coordinating the transportation of the drugs and money. In Martinez, the dis*960trict court concluded that the defendant should receive an increase under § 3Bl.l(c) because his role was to supervise the “delivery logistics,” which involved only two other people. Id. at 752. But this court noted that the defendant “received a break” when the district court increased his base offense level by two because “a defendant who acts as a manager or supervisor in a criminal activity involving at least four other participants should receive a three-level increase even if he managed or supervised just one of the participants.” Id.
Here, the district court concluded that the facts did not support “fractionalizing” the conspiracy into transport and distribution subdivisions and found, based on undisputed facts, that Sanchez was a manager and five or more people were involved in the conspiracy. The record adequately supports the court’s conclusion about the number of participants: Sanchez pleaded guilty to conspiracy with three named co-defendants, and there were at least two unindicted co-conspirators. As this court explained in United States v. McGuire, these findings end the inquiry: “The plain language of § 3B 1.1(b) requires only that a defendant was a manager ‘and the criminal activity involved five or more participants’—not that a defendant managed, or controlled, the five or more participants.” 957 F.2d 310, 316 (7th Cir.1992). The district court did not clearly err in applying a three-level increase under § 3Bl.l(b) rather than a two-level increase under § 3Bl.l(c).
Accordingly, we Affirm the district court’s judgment.
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ORDER
Derek Gilna pleaded guilty to bank fraud, 18 U.S.C. § 1344, and was sentenced to 78 months’ imprisonment. After Gilna filed a notice of appeal, the government moved to dismiss based on Gilna’s promise in his plea agreement to forgo any appeal of his conviction or sentence. Gilna responded to the government’s motion by asserting that his severe depression and alcoholism rendered his appeal waiver involuntary. At the same time, however, Gilna has said explicitly that he “does not seek to overturn his plea of guilty,” and so we will not inquire into the adequacy of the plea colloquy or the voluntariness of the guilty plea. See United States v. Knox, 287 F.3d 667, 671-72 (7th Cir.2002). And since the appeal waiver in the plea agreement stands or falls with the guilty plea, the waiver binds Gilna, and his appeal must be dismissed. See United States v. Wilson, 481 F.3d 475, 483 (7th Cir.2007); United States v. Nave, 302 F.3d 719, 721 (7th Cir.2002); United States v. Hare, 269 F.3d 859, 860-61 (7th Cir.2001).
The government’s motion is GRANTED, and the appeal is DISMISSED.
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ORDER
Said Ayesh pleaded guilty to attempted international parental kidnaping. See 18 U.S.C. § 1204(a). He was sentenced to a term of 35 months, which was 5 months more than the upper end of his guideline range (24-30 months) and 1 month short of the statutory maximum. Ayesh challenges his sentence on this appeal. Here are the facts.
Ayesh lived for several years in Illinois with Munah Bamieh before the pair went back to Jordan, where both are citizens. When Bamieh became pregnant, she returned alone to the United States. The couple had agreed that their child should be born here to gain citizenship, but after the birth Bamieh refused to rejoin Ayesh in Jordan and even denied that he was the father of her child. Ayesh, in turn, entered the United States illegally, and eventually confirmed his paternity and won visitation in the Circuit Court of Cook County.
Threats from Ayesh and members of his family did not persuade Bamieh to go back to Jordan with the child, so Ayesh plotted to kidnap her. He acquired a Jordanian passport for the child, forged Illinois identity documents with aliases for the two of them, and stole his own passport from the office of a lawyer who apparently was holding it under a court order. He made financial arrangements to pay for two one-way -lane tickets to Jordan that he planned to acquire in New York. Then, during a routine visitation, Ayesh took the child out of the geographical boundaries prescribed by the Illinois state court and traveled with her to Indiana, where he paid two accomplices for a ride to New York. They made it as far as Toledo, Ohio, before they were stopped.
The district court adopted the factual findings in the presentence investigation report, which detailed a conviction for battering a woman whose ah* conditioner Ayesh had been hired to fix, as well as reports underlying arrests for threatening Bamieh and battering a former domestic partner and another female customer. The district court calculated a guidelines imprisonment range of 24 to 30 months, which Ayesh concedes is correct. In going above that range, the district court explained that a longer term was necessary to deter Ayesh from committing more crimes. The court further observed that Ayesh’s plan required extensive premeditation and, if successful, would likely have deprived Bamieh of access to her child. The court highlighted the need to promote respect for federal and state law, given Ayesh’s disregard for both.
On appeal, Ayesh first argues that the district court improperly inflated the *969need for deterrence by considering not only his conviction, but also the conduct underlying his arrests that did not result in conviction. Yet even under the old regime of mandatory guidelines, U.S.S.G. § 4A1.3 allowed a sentencing court to consider rehable evidence of adult criminal conduct not resulting in conviction. See United States v. Johnson, 427 F.3d 423, 428 (7th Cir.2005); United States v. Terry, 930 F.2d 542, 545 (7th Cir.1991). Ayesh did not contest the reliability of the information incorporated into the presentence report, except to contend at oral argument that evidence of an offense is never reliable until it results in conviction. But that is not the law.
Ayesh next argues that the district court grounded its sentencing decision not in the factors set out in 18 U.S.C. § 3553(a), but instead in its bias against a man whose actions it deemed “reprehensible,” and in naked speculation that Bamieh’s chances of regaining custody would have been slim if the kidnaping had succeeded. But kidnaping attempts are reprehensible, and saying so doesn’t make a judge biased. And the accusation of “speculation” is unfounded; the court had before it the government’s undisputed evidence that the United States lacks a legal mechanism for enforcing state court custody determinations in Jordan. Plus, securing the return of kidnaping victims from a country like Jordan, which is not a party to the Hague Convention on the Civil Aspects of International Child Abduction, seems highly unlikely at best.
Ayesh is on better footing when he argues that major variances from the guidelines range need stronger justifications than minor ones. See Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 596-97, 169 L.Ed.2d 445 (2007); United States v. Presbitero, 569 F.3d 691, 707 (7th Cir.2009). But see United States v. Bartlett, 567 F.3d 901, 909 (7th Cir.2009) (clarifying that district courts need not explain their decisions “from the Guidelines’ perspective”). Yet a variance of 5 months above a range ending at 30 isn’t very large, and the district court here gave adequate reasons for the sentence it imposed, consistent with the § 3553(a) sentencing factors. See United States v. McIntyre, 531 F.3d 481, 483 (7th Cir.2008).
Finally, Ayesh argues, based on § 3553(a)(6), that he must be resentenced to avoid causing a nationwide sentencing disparity. But the perceived disparity is illusory; his sentence is actually lower than the sentences imposed in half of the cases cited by the parties.' In any event, § 3553(a)(6) addresses only tmwarranted disparities, see United States v. Statham, 581 F.3d 548, 556 (7th Cir.2009); Bartlett, 567 F.3d at 908, 909, and the district court here sufficiently justified a sentence 5 months above the guidelines range.
Accordingly, the judgment of the district court is AFFIRMED.
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PER CURIAM.
Willie Andrews appeals the district court’s1 adverse grant of summary judgment in his 42 U.S.C. § 1983 action. Upon de novo review, see Anderson v. Larson, 327 F.3d 762, 767 (8th Cir.2003) (standard of review), we hold that summary judgment was properly granted. Accordingly, we affirm. See 8th Cir. R. 47B.
. The Honorable James M. Moody, United States District Judge for the Eastern District of Arkansas, adopting the report and recommendations of the Honorable Beth Deere, United States Magistrate Judge for the Eastern District of Arkansas.
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PER CURIAM.
In these consolidated appeals, Wendell O’Neal challenges adverse judgments entered in three separate actions, all of which asserted claims arising from alleged civil rights and other violations in connection with O’Neal’s arrest and conviction for trespassing in August 2005, and his subsequent efforts to obtain records related to the incident. Following careful review of the district court’s1 judgments and O’Neal’s arguments on appeal, we find no basis for reversal. Accordingly, we affirm. See 8th Cir. R. 47B. O’Neal’s pending motions are denied.
. The Honorable Ann D. Montgomery, United States District Judge for the District of Minnesota, adopting the reports and recommendations of the Honorable Janie S. Mayeron, United States Magistrate Judge for the District of Minnesota.
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MEMORANDUM **
Cyrus Yoo Kim appeals pro se from the district court’s judgment dismissing his action brought under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). We have jurisdiction under 28 U.S.C. § 1291. We review de novo the dismissal of a Bivens action for failure to state a claim. Adams v. Johnson, 355 F.3d 1179, 1183 (9th Cir. 2004). We review for an abuse of discretion a district court’s decision whether to retain supplemental jurisdiction. Tritchler v. County of Lake, 358 F.3d 1150, 1153 (9th Cir.2004). We affirm.
*2The district court properly dismissed Kim’s action because respondeat superior is inapplicable in a Bivens action. See Terrell v. Brewer, 935 F.2d 1015, 1018 (9th Cir.1991).
The district court did not abuse its discretion by declining to retain jurisdiction over Kim’s state law tort claim once the Bivens claims were dismissed. See 28 U.S.C. § 1367(c)(3) (“The district court may decline to exercise supplemental jurisdiction over a claim under subsection (a) if the district court has dismissed all claims over which it has original jurisdiction.”).
Kim’s remaining contentions are unpersuasive.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM *
Mieko Jackson appeals her conviction and sentence on charges that she conspired to distribute pseudoephedrine knowing and having reasonable cause to believe that it would be used to manufacture methamphetamine, and to aid and abet the manufacture of methamphetamine (count one); conspiracy to launder money (count five); and money laundering (counts eight-eleven). She raises a number of issues, none of which requires reversal except for sufficiency of the evidence to sustain her conviction on count one. We reverse as to that count, which moots her claims of instructional error and the sentencing issues that pertain only to count one, and otherwise affirm.
Jackson argues there is no evidence that she knew or intended that pseu-doephedrine was to be used to manufacture methamphetamine. Under United States v. Johal, 428 F.3d 823 (9th Cir. 2005), the standard for conviction is “reasonable cause to believe” that the pseu-doephedrine would be used to make an illegal drug. Id. at 826. The government points out that Jackson transported and unloaded pseudoephedrine, converted cash into money orders, and allowed cash to be deposited into her account. While the jury could find beyond a reasonable doubt that Jackson knew she was helping Miz-yed handle pseudoephedrine, and that she was receiving a large amount of cash for it — thus that it was being used for some illicit activity — there is no evidence from which the jury could reasonably infer that she knew of any connection between pseu-doephedrine and methamphetamine. Cf, e.g., Johal, 428 F.3d at 826 (noting that the defendant knew the undercover agent wanted pseudoephedrine because “he was a cook” and “wanted to make crystal”). The government did not ask for a “deliberate ignorance” instruction, and none was given. Accordingly, we conclude that the evidence was insufficient to show that Jackson conspired with Mizyed and others to distribute pseudoephedrine having reasonable cause to believe that it would be used to manufacture methamphetamine. Her conviction and sentence on count one are, therefore, reversed.
To the extent Jackson claims that instructional error on the conspiracy count spilled over to the jury’s determination of the proper level of scienter for money laundering, we disagree. Jackson doesn’t challenge the money laundering instructions themselves. These instructions are not plainly erroneous, as money laundering only requires knowledge of proceeds from some unlawful activity — not activity that is methamphetamine-related. 18 U.S.C. § 1956(a)(1). Jackson’s sufficiency challenge fails given testimony by Wallace, Sarabia, and Mizyed that she knew the money received from Mizyed involved the proceeds of unlawful activity, and that the money he gave her to obtain money orders and pay his bills was an attempt to conceal the source of those funds.
Jackson also faults introduction of extrajudicial facts related to the guilty pleas of Mirlo Paez-Calderon and Kimberly East-erling. Jackson did not object in district court, so our review is for plain error. Even assuming Crawford error,1 reversal is not indicated. Evidence of Jackson’s guilt, apart from what Paez-Calderon and Easterling had to say, is strong: Mizyed *6had told Jackson he was hiding money, and she shuffled money he gave her knowing it was the proceeds of some kind of unlawful activity.
In light of our reversal on count one, it doesn’t matter whether the district court improperly denied Jackson the benefit of the safety valve or whether the special jury verdict form was infirm, as Jackson claims, for both are germane only to the conviction and sentence on that count. We remand to the district court with instructions to vacate the conviction and sentence on count one, and to resentence on the remaining counts.
AFFIRMED IN PART; REVERSED AND REMANDED IN PART.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
. Crawford v. Washington, 541 U.S. 36, 59, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).
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MEMORANDUM **
Zameer R. Azam, a California state prisoner, appeals pro se from the district court’s two post-judgment orders in his 42 U.S.C. § 1983 action claiming defamation, denial of due process rights, and malicious prosecution. We have jurisdiction under 28 U.S.C. § 1291. We review for abuse of discretion, Harman v. Harper, 7 F.3d 1455, 1458 (9th Cir.1993), and we affirm.
The district court did not abuse its discretion when it denied Azam’s post-judgment motions seeking enlargement of time to file a motion for reconsideration or for relief from judgment. The district court had no power to extend the time to file a Rule 59(e) motion. See Fed.R.Civ.P. 6(b)(2) (“A court must not extend the time to act under Rule[ ] 59(e).... ”); Fed. R.Civ.P. 59(e) (“A motion to alter or amend a judgment must be filed no later than 10 days after the entry of the judgment.”); Harman, 7 F.3d at 1458. The district court also properly explained that Rule 60(a) does not have a specific deadline and that Azam had “a reasonable time” but less than a year to file a Rule 60(b) motion.
As stated in the August 19, 2008 order, Azam did not file a timely tolling motion and did not file a notice of appeal within 30 days of entry of judgment. We therefore do not consider the parties’ contentions regarding summary judgment.
Azam’s motion to hear the appeal on the entire district court record is denied and *8the requests to take judicial notice are denied as unnecessary.
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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*9MEMORANDUM **
Tommy and Brooke Allen appeal from the district court’s dismissal of their 42 U.S.C. § 1983 lawsuit for failure to state a claim. Tommy Allen, who is authorized under California law to use marijuana for medical purposes, claims that the defendants violated his and his daughter’s constitutional rights by unlawfully arresting and prosecuting them for marijuana-related offenses, and by searching his property without probable cause. We have jurisdiction under 28 U.S.C. § 1291. We review de novo, Boucher v. Shaw, 572 F.3d 1087, 1089 (9th Cir.2009), and we affirm in part, reverse in part, and remand.
The district court properly dismissed the plaintiffs’ claims against the individual City and County defendants for malicious prosecution and against the County of Fresno for discriminatory, selective, arbitrary, and retaliatory enforcement of laws because their complaint failed to allege sufficient facts to establish a plausible entitlement to relief. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 557, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). The district court also properly dismissed the plaintiffs’ declaratory judgment action against the County of Fresno because the Allens do not have standing to seek such relief.
The district court, however, erred in concluding that the Allens failed to allege sufficient facts to support their Fourth Amendment claims for unlawful arrest and unlawful search and seizure. The complaint alleges that the City defendants who searched and arrested Tommy Allen lacked probable cause and knew at all pertinent times that he was authorized under state law to use marijuana for medicinal purposes, that the City defendants’ search of Tommy Allen was later found unlawful, and that the County defendants who arrested Tommy and Brooke Allen lacked probable cause. This was enough to establish a plausible entitlement to relief as required under Twombly, 550 U.S. at 557, 127 S.Ct. 1955. Although Allen cannot use § 1983 to vindicate his purported state-law right to use marijuana for medical purposes, the officers’ knowledge of his medical authorization may be relevant to whether they had probable cause to believe he had committed a crime.
Each side to bear its own costs on appeal.
AFFIRMED in part, REVERSED in part, and REMANDED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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ORDER
The appellant having failed to file the brief required by Federal Circuit Rule 31(a) within the time permitted by the rules, it is
ORDERED that the notice of appeal be, and the same hereby is, DISMISSED, for failure to prosecute in accordance with the rules.
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ORDER
The petitioner having failed to pay the docketing fee required by Federal Circuit Rule 52(a)(1) within the time permitted by the rules, it is
ORDERED that the petition for review be, and the same hereby is, DISMISSED, for failure to prosecute in accordance with the rules.
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MEMORANDUM **
Cyrus Yoo Kim appeals pro se from the district court’s judgment dismissing his action brought under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). We have jurisdiction under 28 U.S.C. § 1291. We review de novo the dismissal of a Bivens action for failure to state a claim. Adams v. Johnson, 355 F.3d 1179, 1183 (9th Cir. 2004). We review for an abuse of discretion a district court’s decision whether to retain supplemental jurisdiction. Tritchler v. County of Lake, 358 F.3d 1150, 1153 (9th Cir.2004). We affirm.
*2The district court properly dismissed Kim’s action because respondeat superior is inapplicable in a Bivens action. See Terrell v. Brewer, 935 F.2d 1015, 1018 (9th Cir.1991).
The district court did not abuse its discretion by declining to retain jurisdiction over Kim’s state law tort claim once the Bivens claims were dismissed. See 28 U.S.C. § 1367(c)(3) (“The district court may decline to exercise supplemental jurisdiction over a claim under subsection (a) if the district court has dismissed all claims over which it has original jurisdiction.”).
Kim’s remaining contentions are unpersuasive.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM *
Plaintiffs-Appellants Raymond Reudy and Kevin Hicks, dba Advertising Display Systems, and ADS-1 appeal the district court’s dismissal of their action against CBS Corp., Patrick Roche, Clear Channel Outdoor, Inc., and William Hooper. We affirm.
Plaintiffs’ claims against CBS and Roche, are barred by the broad release of all known and unknown claims entered into by Plaintiffs and CBS in conjunction with CBS’s purchase of seven outdoor advertising sign billboards from Plaintiffs. Plaintiffs present no allegation of fraud, duress, undue influence, or unconscionability with respect to the purchase agreement or the release signed by the Plaintiffs. That purely commercial transaction does not warrant a court’s intervention to remake the parties’ agreement. See CAZA Drilling (California), Inc. v. TEG Oil & Gas, U.S.A., Inc., 142 Cal.App.4th 453, 48 Cal.Rptr.3d 271, 286 (2006) (“In the majority of commercial situations, courts have upheld contractual limitations on liability, even against claims that the breaching party violated a law or regulations.”).
Plaintiffs’ claims against Clear Channel and Hooper are barred on the basis of res judicata, because the nuisance claims were raised against Clear Channel in a separate action. See Fed. Trade Comm’n v. Garvey, 383 F.3d 891, 897 (9th Cir .2004).
Even if Plaintiffs’ claims were not barred by either the release or res judica-ta, Plaintiffs failed to state a cause of action for either private or public nuisance because plaintiffs lack any interest in real property. California law requires a disturbance of rights in land before a plaintiff may maintain a cause of action for private nuisance. Venuto v. Owens-Corning Fiberglas Corp., 22 Cal.App.3d 116, 99 Cal. Rptr. 350, 355 (Cal.Ct.App.1971). Plaintiffs’ alleged interests are insufficient to state a cause of action for private nuisance. *4See Trinkle v. Cal. State Lottery, 71 Cal.App.4th 1198, 84 Cal.Rptr.2d 496, 500 (1999) (rejecting private nuisance claim where plaintiff owned vending machines installed in third-party business establishments but had no interest in the real property of those businesses). In order to state a claim for public nuisance, “one must have suffered harm of a kind different from that suffered by other members of the public exercising the right common to the general public that was the subject of interference.” Ileto v. Glock, Inc., 349 F.3d 1191, 1211 (9th Cir.2003) (applying California law) (citing Restatement (Second) of Torts § 821C(1)); see also Cal.Civ.Code. § 3480. The harm must be one emanating from the same cause, such as diminution in safety or aesthetics, however. Nuisance law is not designed to benefit disadvantaged competitors.
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 *
Mieko Jackson appeals her conviction and sentence on charges that she conspired to distribute pseudoephedrine knowing and having reasonable cause to believe that it would be used to manufacture methamphetamine, and to aid and abet the manufacture of methamphetamine (count one); conspiracy to launder money (count five); and money laundering (counts eight-eleven). She raises a number of issues, none of which requires reversal except for sufficiency of the evidence to sustain her conviction on count one. We reverse as to that count, which moots her claims of instructional error and the sentencing issues that pertain only to count one, and otherwise affirm.
Jackson argues there is no evidence that she knew or intended that pseu-doephedrine was to be used to manufacture methamphetamine. Under United States v. Johal, 428 F.3d 823 (9th Cir. 2005), the standard for conviction is “reasonable cause to believe” that the pseu-doephedrine would be used to make an illegal drug. Id. at 826. The government points out that Jackson transported and unloaded pseudoephedrine, converted cash into money orders, and allowed cash to be deposited into her account. While the jury could find beyond a reasonable doubt that Jackson knew she was helping Miz-yed handle pseudoephedrine, and that she was receiving a large amount of cash for it — thus that it was being used for some illicit activity — there is no evidence from which the jury could reasonably infer that she knew of any connection between pseu-doephedrine and methamphetamine. Cf, e.g., Johal, 428 F.3d at 826 (noting that the defendant knew the undercover agent wanted pseudoephedrine because “he was a cook” and “wanted to make crystal”). The government did not ask for a “deliberate ignorance” instruction, and none was given. Accordingly, we conclude that the evidence was insufficient to show that Jackson conspired with Mizyed and others to distribute pseudoephedrine having reasonable cause to believe that it would be used to manufacture methamphetamine. Her conviction and sentence on count one are, therefore, reversed.
To the extent Jackson claims that instructional error on the conspiracy count spilled over to the jury’s determination of the proper level of scienter for money laundering, we disagree. Jackson doesn’t challenge the money laundering instructions themselves. These instructions are not plainly erroneous, as money laundering only requires knowledge of proceeds from some unlawful activity — not activity that is methamphetamine-related. 18 U.S.C. § 1956(a)(1). Jackson’s sufficiency challenge fails given testimony by Wallace, Sarabia, and Mizyed that she knew the money received from Mizyed involved the proceeds of unlawful activity, and that the money he gave her to obtain money orders and pay his bills was an attempt to conceal the source of those funds.
Jackson also faults introduction of extrajudicial facts related to the guilty pleas of Mirlo Paez-Calderon and Kimberly East-erling. Jackson did not object in district court, so our review is for plain error. Even assuming Crawford error,1 reversal is not indicated. Evidence of Jackson’s guilt, apart from what Paez-Calderon and Easterling had to say, is strong: Mizyed *6had told Jackson he was hiding money, and she shuffled money he gave her knowing it was the proceeds of some kind of unlawful activity.
In light of our reversal on count one, it doesn’t matter whether the district court improperly denied Jackson the benefit of the safety valve or whether the special jury verdict form was infirm, as Jackson claims, for both are germane only to the conviction and sentence on that count. We remand to the district court with instructions to vacate the conviction and sentence on count one, and to resentence on the remaining counts.
AFFIRMED IN PART; REVERSED AND REMANDED IN PART.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
. Crawford v. Washington, 541 U.S. 36, 59, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).
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MEMORANDUM **
Zameer R. Azam, a California state prisoner, appeals pro se from the district court’s two post-judgment orders in his 42 U.S.C. § 1983 action claiming defamation, denial of due process rights, and malicious prosecution. We have jurisdiction under 28 U.S.C. § 1291. We review for abuse of discretion, Harman v. Harper, 7 F.3d 1455, 1458 (9th Cir.1993), and we affirm.
The district court did not abuse its discretion when it denied Azam’s post-judgment motions seeking enlargement of time to file a motion for reconsideration or for relief from judgment. The district court had no power to extend the time to file a Rule 59(e) motion. See Fed.R.Civ.P. 6(b)(2) (“A court must not extend the time to act under Rule[ ] 59(e).... ”); Fed. R.Civ.P. 59(e) (“A motion to alter or amend a judgment must be filed no later than 10 days after the entry of the judgment.”); Harman, 7 F.3d at 1458. The district court also properly explained that Rule 60(a) does not have a specific deadline and that Azam had “a reasonable time” but less than a year to file a Rule 60(b) motion.
As stated in the August 19, 2008 order, Azam did not file a timely tolling motion and did not file a notice of appeal within 30 days of entry of judgment. We therefore do not consider the parties’ contentions regarding summary judgment.
Azam’s motion to hear the appeal on the entire district court record is denied and *8the requests to take judicial notice are denied as unnecessary.
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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*9MEMORANDUM **
Tommy and Brooke Allen appeal from the district court’s dismissal of their 42 U.S.C. § 1983 lawsuit for failure to state a claim. Tommy Allen, who is authorized under California law to use marijuana for medical purposes, claims that the defendants violated his and his daughter’s constitutional rights by unlawfully arresting and prosecuting them for marijuana-related offenses, and by searching his property without probable cause. We have jurisdiction under 28 U.S.C. § 1291. We review de novo, Boucher v. Shaw, 572 F.3d 1087, 1089 (9th Cir.2009), and we affirm in part, reverse in part, and remand.
The district court properly dismissed the plaintiffs’ claims against the individual City and County defendants for malicious prosecution and against the County of Fresno for discriminatory, selective, arbitrary, and retaliatory enforcement of laws because their complaint failed to allege sufficient facts to establish a plausible entitlement to relief. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 557, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). The district court also properly dismissed the plaintiffs’ declaratory judgment action against the County of Fresno because the Allens do not have standing to seek such relief.
The district court, however, erred in concluding that the Allens failed to allege sufficient facts to support their Fourth Amendment claims for unlawful arrest and unlawful search and seizure. The complaint alleges that the City defendants who searched and arrested Tommy Allen lacked probable cause and knew at all pertinent times that he was authorized under state law to use marijuana for medicinal purposes, that the City defendants’ search of Tommy Allen was later found unlawful, and that the County defendants who arrested Tommy and Brooke Allen lacked probable cause. This was enough to establish a plausible entitlement to relief as required under Twombly, 550 U.S. at 557, 127 S.Ct. 1955. Although Allen cannot use § 1983 to vindicate his purported state-law right to use marijuana for medical purposes, the officers’ knowledge of his medical authorization may be relevant to whether they had probable cause to believe he had committed a crime.
Each side to bear its own costs on appeal.
AFFIRMED in part, REVERSED in part, and REMANDED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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ORDER
The petitioner having failed to pay the docketing fee required by Federal Circuit Rule 52(a)(1) within the time permitted by the rules, it is
ORDERED that the petition for review be, and the same hereby is, DISMISSED, for failure to prosecute in accordance with the rules.
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MEMORANDUM *
Dennis Moncrief (“Moncrief’) appeals his 180-month sentence imposed pursuant to the Armed Career Criminal Act (“ACCA”). We affirm.
Under the “categorical approach” delineated by the Supreme Court in Taylor v. United States, 495 U.S. 575, 110 S.Ct. *122148, 109 L.Ed.2d 607 (1990), the Tennessee aggravated burglary statute is broader than the generic definition of burglary because it extends to tents and motor homes. TenmCode § 39-14-403; United States v. Grisel, 488 F.3d 844, 848-49 (9th Cir.2007) (en banc) (“building or structure” as used in Taylor limited to structures designed for occupancy and intended for use in one place). Nonetheless, the Tennessee aggravated burglary statute satisfies the ACCA’s “residual clause” because it “otherwise involves conduct that presents a serious potential risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B)(ii). Because the Tennessee statute is limited to places that are “designed or adapted for the overnight accommodation of persons” and thus likely to be occupied, it presents the same risk of confrontation and physical injury as the generic crime. See United States v. Mayer, 560 F.3d 948, 963 (9th Cir.), cert. denied, — U.S.-, 130 S.Ct. 158, 175 L.Ed.2d 100 (2009); James v. United States, 550 U.S. 192, 212, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007).
As Moncrief s six Tennessee convictions are more than sufficient for the ACCA enhancement, we need not reach his arguments regarding his Colorado convictions.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
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MEMORANDUM **
Alicia Carol Bass appeals from the 15-month sentence imposed following her guilty-plea conviction for use of a communication facility in committing a felony drug offense, in violation of 21 U.S.C. § 843(b),(d). We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
As an initial matter, the government contends that Bass’ appeal is moot because she has already served her custodial sentence. This contention lacks merit. See United States v. Montenegro-Rojo, 908 F.2d 425, 431 n. 8 (9th Cir.1990).
The government also contends that Bass’ appeal is barred by an appeal waiver contained in the plea agreement. Because the government failed to object to the district court’s pronouncements that Bass could appeal her sentence, the government has waived this argument. See United States v. Felix, 561 F.3d 1036, 1041 (9th Cir.2009).
Bass contends that the district court imposed an unreasonable sentence by sentencing her to a term of imprisonment when a co-defendant with a more serious criminal history had received probation. We conclude that the district court did not procedurally err, and that the sentence imposed is not substantively unreasonable. See United States v. Plouffe, 445 F.3d 1126, 1131-32 (9th Cir.2006); see also United States v. Stoterau, 524 F.3d 988, 999-1002 (9th Cir.2008).
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
In these consolidated petitions for review, Salvación Tenedor Ozoa and Raymundo Melon Ozoa, husband and wife and natives and citizens of the Philippines, petition for review of the Board of Immigration Appeals’ (“BIA”) order dismissing them appeal from an immigration judge’s decision denying their motion to reopen based on ineffective assistance of counsel and denying their motion to reopen to apply for adjustment of status. Our jurisdiction is governed by 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reopen, and de novo claims of due process violations, including those resulting from ineffective assistance of counsel. See Lin v. Ashcroft, 377 F.3d 1014, 1023 (9th Cir.2004). We grant the petition for review in No. 05-72806 and we deny in part and dismiss in part the petition for review in No. 08-70123.
We disagree with the agency’s conclusion that petitioners had to comply with the requirements in Matter of Lozada, 19 I. & N. Dec. 637, 639 (BIA 1988), for asserting a claim of ineffective assistance of counsel where petitioners’ attorney’s ineffective assistance was plain on the face of the record because he failed to timely file a notice of appeal. See Castillo-Perez v. INS, 212 F.3d 518, 525-26 (9th Cir.2000). Petitioners’ attorney’s failure to file a notice of appeal resulted in prejudice. See Siong v. INS, 376 F.3d 1030, 1038-39 (9th Cir.2004).
The BIA did not abuse its discretion in denying petitioner’s motion to reopen to adjust status as untimely because it was filed more than two years after the BIA’s April 14, 2005, order, and petitioners have failed to establish that an exception to the regulatory filing deadline applied. See 8 C.F.R. § 1003.2(c)(2)-(3). Petitioners’ contention that the denial of their motion violated due process therefore fails. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir.2000) (requiring error for a due process violation).
We lack jurisdiction to review petitioners’ contention that the BIA should have equitably tolled the statutory and regulatory deadlines because they failed to exhaust this argument before the agency. See Barron v. Ashcroft, 358 F.3d 674, 677-78 (9th Cir.2004).
We lack jurisdiction to review the BIA’s decision not to invoke its sua sponte authority to reopen proceedings. See Ekimian v. INS, 303 F.3d 1153, 1159 (9th Cir. 2002).
Petitioners’ motion to hold the case in abeyance is denied.
In 05-72806, PETITION FOR REVIEW GRANTED.
In 08-70123, PETITION FOR REVIEW DENIED in part; DISMISSED in part.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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ORDER
The appellant having failed to file the brief required by Federal Circuit Rule 31(a) within the time permitted by the rules, it is
ORDERED that the notice of appeal be, and the same hereby is, DISMISSED, for failure to prosecute in accordance with the rules.
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ORDER
The appellant having failed to file the brief required by Federal Circuit Rule 31(a) within the time permitted by the rules, it is
ORDERED that the notice of appeal be, and the same hereby is, DISMISSED, for failure to prosecute in accordance with the rules.
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MEMORANDUM *
Dennis Moncrief (“Moncrief’) appeals his 180-month sentence imposed pursuant to the Armed Career Criminal Act (“ACCA”). We affirm.
Under the “categorical approach” delineated by the Supreme Court in Taylor v. United States, 495 U.S. 575, 110 S.Ct. *122148, 109 L.Ed.2d 607 (1990), the Tennessee aggravated burglary statute is broader than the generic definition of burglary because it extends to tents and motor homes. TenmCode § 39-14-403; United States v. Grisel, 488 F.3d 844, 848-49 (9th Cir.2007) (en banc) (“building or structure” as used in Taylor limited to structures designed for occupancy and intended for use in one place). Nonetheless, the Tennessee aggravated burglary statute satisfies the ACCA’s “residual clause” because it “otherwise involves conduct that presents a serious potential risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B)(ii). Because the Tennessee statute is limited to places that are “designed or adapted for the overnight accommodation of persons” and thus likely to be occupied, it presents the same risk of confrontation and physical injury as the generic crime. See United States v. Mayer, 560 F.3d 948, 963 (9th Cir.), cert. denied, — U.S.-, 130 S.Ct. 158, 175 L.Ed.2d 100 (2009); James v. United States, 550 U.S. 192, 212, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007).
As Moncrief s six Tennessee convictions are more than sufficient for the ACCA enhancement, we need not reach his arguments regarding his Colorado convictions.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
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MEMORANDUM **
Alicia Carol Bass appeals from the 15-month sentence imposed following her guilty-plea conviction for use of a communication facility in committing a felony drug offense, in violation of 21 U.S.C. § 843(b),(d). We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
As an initial matter, the government contends that Bass’ appeal is moot because she has already served her custodial sentence. This contention lacks merit. See United States v. Montenegro-Rojo, 908 F.2d 425, 431 n. 8 (9th Cir.1990).
The government also contends that Bass’ appeal is barred by an appeal waiver contained in the plea agreement. Because the government failed to object to the district court’s pronouncements that Bass could appeal her sentence, the government has waived this argument. See United States v. Felix, 561 F.3d 1036, 1041 (9th Cir.2009).
Bass contends that the district court imposed an unreasonable sentence by sentencing her to a term of imprisonment when a co-defendant with a more serious criminal history had received probation. We conclude that the district court did not procedurally err, and that the sentence imposed is not substantively unreasonable. See United States v. Plouffe, 445 F.3d 1126, 1131-32 (9th Cir.2006); see also United States v. Stoterau, 524 F.3d 988, 999-1002 (9th Cir.2008).
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 **
Kashmir Kaur, a national and citizen of India, petitions for review of a final order of the Board of Immigration Appeals (BIA), adopting and affirming an immigration judge (IJ), which denied her application for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). We have jurisdiction under 8 U.S.C. § 1252(a)(1), and deny the petition for review.
Although not every one of the IJ’s credibility findings is justifiable, there is substantial evidence to support the adverse credibility determination. Wang v. INS, 352 F.3d 1250, 1259 (9th Cir.2003) (“So long as one of the identified grounds is supported by substantial evidence and goes to the heart of [the] claim of persecution, we are bound to accept the IJ’s adverse credibility finding.”). Kaur’s testimony regarding her husband’s affiliation with Akali Dal Mann was inconsistent, ranging from her husband not participating in politics at all to merely being a supporter who never worked for the party to being, according to her own exhibit, an active member who had worked for the party. Given that her alleged persecution arose, at least in part, out of her husband’s affiliation with this party, this inconsistency goes to the heart of her claim.
This inconsistency is a specific, cogent reason that provides substantial evidence for the IJ’s adverse credibility finding. Shire v. Ashcroft, 388 F.3d 1288, 1295 (9th Cir.2004). Accordingly, the court is not presented with a situation where “no reasonable factfinder could find that the petitioner was not credible.” Id. at 1295.
Because Kaur failed to satisfy her burden of establishing eligibility for asylum relief, she also cannot meet the higher withholding of removal standard. See Movsisian v. Ashcroft, 395 F.3d 1095, 1097 (9th Cir.2005) (“In failing to qualify for asylum, Movsisian necessarily failed to meet the more stringent standard of proof for withholding of deportation.”).
In addition, because Kaur’s “claims under the Convention Against Torture are based on the same statements, by [Kaur] and others, that the BIA determined to be not credible,” this court “must similarly affirm the rejection of [Kaur’s] claim under the Convention Against Torture.” Farah *17v. Ashcroft, 348 F.3d 1153, 1157 (9th Cir. 2003).
PETITION FOR REVIEW DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
In these consolidated petitions for review, Salvación Tenedor Ozoa and Raymundo Melon Ozoa, husband and wife and natives and citizens of the Philippines, petition for review of the Board of Immigration Appeals’ (“BIA”) order dismissing them appeal from an immigration judge’s decision denying their motion to reopen based on ineffective assistance of counsel and denying their motion to reopen to apply for adjustment of status. Our jurisdiction is governed by 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reopen, and de novo claims of due process violations, including those resulting from ineffective assistance of counsel. See Lin v. Ashcroft, 377 F.3d 1014, 1023 (9th Cir.2004). We grant the petition for review in No. 05-72806 and we deny in part and dismiss in part the petition for review in No. 08-70123.
We disagree with the agency’s conclusion that petitioners had to comply with the requirements in Matter of Lozada, 19 I. & N. Dec. 637, 639 (BIA 1988), for asserting a claim of ineffective assistance of counsel where petitioners’ attorney’s ineffective assistance was plain on the face of the record because he failed to timely file a notice of appeal. See Castillo-Perez v. INS, 212 F.3d 518, 525-26 (9th Cir.2000). Petitioners’ attorney’s failure to file a notice of appeal resulted in prejudice. See Siong v. INS, 376 F.3d 1030, 1038-39 (9th Cir.2004).
The BIA did not abuse its discretion in denying petitioner’s motion to reopen to adjust status as untimely because it was filed more than two years after the BIA’s April 14, 2005, order, and petitioners have failed to establish that an exception to the regulatory filing deadline applied. See 8 C.F.R. § 1003.2(c)(2)-(3). Petitioners’ contention that the denial of their motion violated due process therefore fails. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir.2000) (requiring error for a due process violation).
We lack jurisdiction to review petitioners’ contention that the BIA should have equitably tolled the statutory and regulatory deadlines because they failed to exhaust this argument before the agency. See Barron v. Ashcroft, 358 F.3d 674, 677-78 (9th Cir.2004).
We lack jurisdiction to review the BIA’s decision not to invoke its sua sponte authority to reopen proceedings. See Ekimian v. INS, 303 F.3d 1153, 1159 (9th Cir. 2002).
Petitioners’ motion to hold the case in abeyance is denied.
In 05-72806, PETITION FOR REVIEW GRANTED.
In 08-70123, PETITION FOR REVIEW DENIED in part; DISMISSED in part.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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ORDER
The appellant having failed to file the brief required by Federal Circuit Rule 31(a) within the time permitted by the rules, it is
ORDERED that the notice of appeal be, and the same hereby is, DISMISSED, for failure to prosecute in accordance with the rules.
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ORDER
The appellant having failed to file the brief required by Federal Circuit Rule 31(a) within the time permitted by the rules, it is
ORDERED that the notice of appeal be, and the same hereby is, DISMISSED, for failure to prosecute in accordance with the rules.
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MEMORANDUM ***
Petitioner Kumar Bahadur Karmachar-ya, a native and citizen of Nepal, appeals the decision of an Immigration Judge (“IJ”), adopted and affirmed by the Board of Immigration Appeals (“BIA”), in which Karmacharya was denied asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”).
The IJ found Karmacharya’s asylum application time-barred because it was not filed within one year of arrival. The IJ also found that Karmacharya had not demonstrated the “extraordinary circumstances” required for late filing. 8 U.S.C. § 1158(a)(2)(D). This court has jurisdiction to review the BIA’s decision that an asylum application does not qualify for one of the exceptions to the one year bar, when, as here, that determination is based on undisputed facts. Fakhry v. Mukasey, 524 F.3d 1057, 1062 (9th Cir.2008) (citing Ramadan v. Gonzales, 479 F.3d 646, 654 (9th Cir.2007)).
We conclude that the IJ and BIA failed properly to address the claim that “changed circumstances” excused the untimely filing of Karmacharya’s application, and we remand to the BIA to address this question in the first instance. Although Karmacharya consistently asserted that the “changed circumstances” exception applied to his case, neither the IJ nor the BIA considered whether the arrest and beating of Karmacharya’s brother in Nepal, within weeks of which Karmacharya filed for asylum, constituted “changed circumstances.” “[I]t goes without saying that IJ’s and the BIA are not free to ignore arguments raised by a petitioner.” Sagaydak v. Gonzales, 405 F.3d 1035, 1040 (9th Cir.2005). We therefore grant this part of the petition and remand to the BIA for consideration of Karmacharya’s “changed circumstances.” See I.N.S. v. *66Orlando Ventura, 537 U.S. 12, 16, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002).
With regard to withholding of removal and CAT relief, we deny the petition for review. Petitioner’s argument that the IJ and BIA erred in the withholding and CAT analysis because they failed to fully consider Karmacharya’s asylum application is without merit. These are three distinct forms of relief. The error noted above with respect to Karmacharya’s asylum application is irrelevant to his claims for •withholding or CAT relief.
DENIED in part; GRANTED in part and REMANDED.
xhiS disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Manjinder Singh, a native and citizen of India, petitions for review of the Board of Immigration Appeals’ order dismissing his appeal from an immigration judge’s (“IJ”) decision denying his application for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). Our jurisdiction is governed by 8 U.S.C. § 1252. We review for substantial evidence, Husyev v. Mukasey, 528 F.3d 1172, 1177 (9th Cir.2008), and we deny in part and dismiss in part the petition for review.
The record does not compel the conclusion that Singh established changed or extraordinary circumstances to excuse his late filed asylum application. See 8 C.F.R. § 1208.4(a)(4),(5). Accordingly, Singh’s asylum claim fails.
Substantial evidence supports the IJ’s adverse credibility determination because Singh lied in his original asylum application about his entry date into the United States and admitted his lie only when confronted by immigration officials. See Sarvia-Quintanilla v. INS, 767 F.2d 1387, 1393 (9th Cir.1985) (substantial evidence supported the IJ’s credibility finding where the petitioner admitted, inter alia, “that he had lied under oath to U.S. immigration officials so that he would not be deported”); see also Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir.2003) (date of entry is one of the key elements of the asylum application that must be credibly established by the applicant). In the absence of credible testimony, Singh’s withholding of removal claim fails. See id.
Because Singh’s CAT claim is based on the testimony the IJ found not credible, and Singh points to no other evidence to show it is more likely than not he would be tortured if returned to India, his CAT claim fails. See id. at 1156-57.
We lack jurisdiction to review the IJ’s discretionary denial of voluntary departure. See 8 U.S.C. §§ 1229c(f), 1252(a)(2)(B)(i). We therefore dismiss the petition as to Singh’s voluntary departure claim.
*72We also lack jurisdiction to review Singh’s remaining due process challenge because he failed to exhaust the issue before the BIA. See Barron v. Ashcroft, 358 F.3d 674, 676-78 (9th Cir.2004).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Bin Bin Yang, a native and citizen of China, petitions for review of the Board of Immigration Appeals’ order affirming an immigration judge’s decision to deny his application for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”) on the basis of adverse credibility determinations. We have jurisdiction under 8 U.S.C. § 1252. After reviewing the factual findings for substantial evidence, see Singh v. Gonzales, 439 F.3d 1100, 1105 (9th Cir.2006), we deny the petition for review.
The record does not compel reversal of the adverse credibility determinations because Yang testified inconsistently regarding his claim that family planning authorities attempted to force his fiancée to undergo an abortion. See 8 U.S.C. § 1158(b)(l)(B)(iii) (providing that under the REAL ID Act, an immigration judge may base a credibility determination on the consistency of the applicant’s statements, regardless of whether it goes to the heart of the applicant’s claim); Kaur v. Gonzales, 418 F.3d 1061, 1067 (9th Cir. 2005) (inconsistencies deprive an applicant’s testimony of the requisite “ring of truth”). The record also establishes that Yang did not provide a credible explanation for why he failed to provide documentary evidence in support of his claim. See Sidhu v. INS, 220 F.3d 1085, 1091 n. 3 (9th Cir.2000) (holding that an immigration judge could determine that an applicant’s explanation for a lack of corroboration was not credible).
In the absence of credible testimony, Yang failed to demonstrate eligibility for asylum or withholding of removal. See Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir.2003). Furthermore, because Yang’s CAT claim relies on the same evidence the immigration judge found not credible, and he does not point to additional evidence to show it is more likely than not that he *77would be tortured if he returned to China, his CAT claim fails. See id. at 1157.
PETITION FOR REVIEW DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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ORDER AND JUDGMENT*
MARY BECK BRISCOE, Circuit Judge.
Defendant-Appellant Jesus Manuel Diaz was convicted by a jury of possession with intent to distribute 1,000 kilograms or more of marijuana in violation of 21 U.S.C. § 841(b)(1)(A). On appeal Diaz challenges his conviction on five grounds alleging that: (1) the district court erred in denying his motion to suppress evidence of the marijuana; (2) the evidence adduced at trial was insufficient to support his conviction; (3) the district court improperly instructed the jury; (4) the district court improperly admitted the testimony of two law enforcement officers; and (5) the district court committed three other eviden-tiary errors which cumulatively denied him the ability to present a defense. We have jurisdiction pursuant to 28 U.S.C. § 1291 and AFFIRM Diaz’s conviction.
I.
Jesus Manuel Diaz is the owner-operator of a one rig trucking company known as JD Easyline. On March 19, 2007, Diaz drove his tractor-trailer eastbound through the Gallup, New Mexico, Port of Entry located on Interstate 40 near the Arizona border. The drive-up credentials booth was closed that morning so Diaz got out of his truck and entered the lobby at 9:40 a.m. in pursuit of the permits necessary to drive his tractor-trailer across New Mexico.
Once inside, Diaz encountered James Smid, a Motor Transportation Division officer with the New Mexico Department of Public Safety. Diaz provided Officer Smid with his commercial driver’s license and the various other items necessary to complete the permit paperwork. According to the bill of lading and weight scale ticket Diaz presented to Officer Smid, Diaz’s load consisted of 9,762 pounds of Dollar Store merchandise and the gross weight of his tractor-trailer was 56,760 pounds.
*120These weights concerned Officer Smid. Based on his experience, both as a commercial truck driver and as public safety officer, Smid knew that an empty tractor-trailer with fuel weighs between 32,000 and 33,000 pounds. Thus, he believed that if Diaz’s load were in fact 9,762 pounds, the gross weight of Diaz’s tractor-trailer would be approximately 42,000 pounds. This left approximately 14,000 pounds unaccounted for by Diaz’s paperwork. Smid was also confused by the fact that Diaz had chosen to “scale out” when he was well below the applicable weight limit.
At 9:45 a.m., with his interest piqued, Officer Smid informed Diaz that he was going to perform a Level Two Regulatory Inspection of his tractor-trailer. A Level Two Inspection is a process authorized by N.M. Stat. Ann. § 65-5-1 which allows a safety officer to ensure that a tractor-trailer is in compliance with all applicable laws and regulations by examining the vehicle and pel-forming a more in-depth review of the driver’s relevant paperwork.
Officer Smid began his Level Two Inspection of Diaz’s tractor-trailer by reviewing Diaz’s logbook. It showed that Diaz had not driven for the first several weeks of March and that Diaz had in fact been in California since January 19, 2007. Officer Smid felt that such a long stretch of downtime was strange for a sole proprietor trucker, particularly because although Diaz listed Baxley, Georgia as his home, he had spent the downtime in California. Smid asked Diaz about this and Diaz claimed that he had been sick with the flu in California for the entire two months.
Officer Smid then began to question Diaz about the weight discrepancies indicated by his paperwork. Diaz attempted to explain the unaccounted weight by telling Officer Smid that sometimes shippers put more on to a trailer than is indicated in the bill of lading. Officer Smid found this explanation odd given that in his experience legitimate shippers only ship what is listed in the bill of lading.
During his review of Diaz’s paperwork, Officer Smid also noticed a marked change in Diaz’s demeanor. Diaz began lowering his head, rubbing his lips with his hand, and scratching his neck. This was of note to Smid because Diaz had not exhibited any of this behavior during the initial permitting process. At this time Diaz also offered a second story regarding his downtime in California, this time informing Smid that he had spent some of the time in Mexico visiting family and friends.
With the document review portion of the Level Two Inspection complete, Officer Smid instructed Diaz to pull his tractor-trailer into an inspection bay so that he could inspect the vehicle itself. As Officer Smid inspected the outside of the vehicle he first noted a lock and seal on the trailer’s doors. Officer Smid felt that this was unusual because based on his experience, a relatively small load of Dollar Store merchandise would not be locked and sealed.
Officer Smid then began to inspect the cab of the tractor — a routine part of a Level Two Inspection. While inside Smid noticed that Diaz did not have a citizen’s band or CB radio, which he felt was unusual for a commercial trucker. Smid asked Diaz why he did not have a CB radio and Diaz told Smid he had sold it because he needed money. Officer Smid also discovered four cell phones in Diaz’s cab. Smid thought this was significant because in the over 2,500 inspections he had conducted, he had discovered multiple cell phones in only about thirty instances, nearly all of which eventually resulted in the discovery of contraband as well. Officer Smid also felt that Diaz’s paying for four cell phones was not consistent with his statement that he sold his CB radio because he needed the money.
*121Officer Smid then moved on to check the load in Diaz’s trailer. Diaz had informed Smid that the shipper had sealed and locked the load. Again, Smid felt that it was unusual that a load of this nature would have been sealed and locked. Upon further examination Smid was also concerned by the fact that the seal on the trailer’s door was a commercially available seal, not unique to the shipper. In Smid’s experience this was not a typical practice.
When the doors of the trailer swung open, Officer Smid detected a strong odor of air freshener. Smid thought this was strange because the bill of lading did not indicate that Diaz was transporting any air fresheners. Further, in Officer Smid’s experience, drug traffickers had used air fresheners in an attempt to conceal the contraband they were transporting.
Officer Smid then viewed the contents of the trailer. It was packed very tightly with pallets of boxes lining its entire length. In the middle were large bundles of clear plastic shrinkwrap. Officer Smid noticed that the boxes toward the nose of the trailer had a large amount of dust on them while the boxes toward the rear of the trailer, or near its doors, did not. In Officer Smid’s experience this was consistent with the use of a “cover load,” or a group of boxes that remain in a trailer over the course of multiple drug runs, each time aiding in the driver’s attempt to appear legitimate. During this time Officer Smid also looked back at Diaz on at least one occasion, but Diaz would not look at Officer Smid.
Confident now in his belief that Diaz’s trailer contained contraband, Officer Smid terminated his Level Two Inspection at 10:17 a.m. and asked another officer to call Officer Hermillo Lucero, a K-9 officer. Although it is unclear whether Smid returned Diaz’s paperwork to him at this time, Smid did ask Diaz if he could ask him a few more questions, and Diaz agreed. Officer Smid asked Diaz if there was any cocaine, heroin, or methamphetamine in his truck and Diaz promptly answered “no” to each of these questions. When Smid asked Diaz if there was any marijuana in his trailer, however, Diaz hesitated, turned away from Smid, and laughed nervously before saying “no” again.
Officer Smid then asked Diaz if he could perform a more thorough search of the tractor-trailer and Diaz verbally agreed. Smid then produced a consent form — in Spanish because Diaz indicated he was more fluent in that language — which was read to Diaz. Diaz signed this consent form at 10:30 a.m. and Officer Smid began his subsequent search at 10:35 a.m.
At this point Officer Dave Halona arrived and stayed with Diaz while Smid began searching the cab of the tractor. As he entered the cab, Diaz informed Smid that there was $1,500 in cash in a bag in the cab. Diaz said that he had received the cash as an advance for costs from the broker who got him the job. Based on his experience, Officer Smid felt that this was an unusual practice. Further, he felt that it was odd that the cash was is small denominations. Officer Smid’s search of the cab ended at approximately 10:55 a.m.
Officer Smid then moved back to the trailer. The smell of air freshener became stronger as he moved toward the middle of the trailer. He proceeded to open one of the boxes and discovered a seat cushion in a state of disrepair that indicated to Smid that it was not legitimate merchandise. He continued to diligently move and search the boxes by himself for approximately an hour. Then, at 11:55 a.m., Smid called Officer Lucero to see how long it would be before he arrived with the canine unit. Officer Lucero said he would be there shortly.
*122Smid continued to search the trailer without taking a break until Officer Lucero arrived at 12:15 p.m. Shortly after he arrived, Officer Lucero ran his dog around the outside of Diaz’s trailer and it alerted on the front left corner. The dog did not, however, alert inside the trailer. Nonetheless, Officers Smid and Lucero decided to conduct a further hand search of the trailer.
As they moved several more of the boxes in the trailer the officers discovered a plywood tunnel that had been built into the trailer. Officer Smid crawled into the tunnel and discovered a large plastic bag. He cut the package open and discovered marijuana. The officers then arrested Diaz at 12:45 p.m. before finishing their search which eventually produced 230 bundles of marijuana weighing more than 3,300 pounds.
At Diaz’s trial, the following additional facts were adduced. First, a laptop computer and printer were discovered in the cab of Diaz’s tractor and a computer forensics expert testified that a program used to create bills of lading had been deleted from the computer the day before Diaz was arrested. Also, it was discovered that Diaz already had a bill of lading for a return trip from Georgia which was identical in every way to the one he presented to Officer Smid in Gallup except that the cargo was listed in a different order. And a Dollar Store manager from California, Homer Gonong, testified that the Dollar Store does not ship in bulk, a single company services the company’s southern California trucking needs, the contact listed on Diaz’s bill of lading does not work for the Dollar Store, and the type of bill of lading that Diaz presented was not one that the Dollar Store used.
Further, a receipt for shrinkwrap was discovered in Diaz’s cab, the seal on the trailer’s door was found to be within the sequence of seals found in Diaz’s cab, and it was determined that all four of the cell phones found in Diaz’s cab were “throw away” phones, only one of which had any connection to Diaz or his company. Finally, Drug Enforcement Agency Agent Kevin Garver testified that many of Diaz’s practices were consistent with drug trafficking operations that he had previously investigated.
On March 20, 2007, a criminal complaint was filed in the United States District Court for the District of New Mexico charging Diaz with the possession of over 1,000 kilograms of marijuana with intent to distribute in violation of 21 U.S.C. § 841(b)(1)(A). After a jury trial, Diaz was convicted and this timely appeal followed.
II.
A. Motion to Suppress
Prior to trial, Diaz filed a Motion to Suppress Evidence in which he requested that the district court suppress the evidence of the marijuana seized from his tractor-trailer. After holding an evidentia-ry hearing, the district court denied Diaz’s motion. The district court concluded that Officer Smid’s initial Level Two Inspection of Diaz’s tractor-trailer was constitutional under the regulatory search exception to the Fourth Amendment’s warrant requirement, see United States v. Gwathney, 465 F.3d 1133, 1138^10 (10th Cir.2006) (holding that New Mexico’s inspection system is constitutional under the regulatory search exception insofar as it allows an officer to enter a trailer to inspect its cargo). The district court also concluded that the subsequent search performed by Officers Smid and Lucero was constitutional, offering three independent bases for this holding: (1) that during the course of his Level Two Inspection Officer Smid developed *123probable cause to believe that Diaz’s tractor-trailer contained contraband; (2) that during the course of his Level Two Inspection Officer Smid developed reasonable suspicion to believe that Diaz’s tractor-trailer contained contraband; and (3) that Diaz voluntarily consented to the subsequent search.
On appeal, Diaz does not challenge the district court’s conclusion regarding the constitutionality of Officer Smid’s Level Two Inspection, but does argue that the district court erred in upholding the subsequent search of the cab and trailer. We are free to affirm the district court’s decision on any grounds, see United States v. Dennison, 410 F.3d 1203, 1209 n. 1 (10th Cir.2005), and begin our review with the district court’s conclusion that Officer Smid had probable cause to conduct the challenged search.
Probable cause under the automobile exception to the Fourth Amendment’s warrant requirement exists if, given the totality of the circumstances, there is a fair probability that the vehicle contains contraband or evidence. United States v. Vasquez-Castillo, 258 F.3d 1207, 1212 (10th Cir.2001). We review the district court’s probable cause ruling de novo, United States v. Rosborough, 366 F.3d 1145, 1152 (10th Cir.2004), viewing the evidence in the light most favorable to the government and accepting the factual findings of the district court unless they are clearly erroneous, see United States v. Grimmett, 439 F.3d 1263, 1268 (10th Cir. 2006).
The district court relied on the following fifteen factual findings in concluding that Officer Smid had probable cause to conduct a further search after he had completed his regulatory inspection:
(1) the inconsistent weights suggested Diaz was carrying more load than was listed on the bill of lading; (2) Diaz’s log book showed considerable down time away from home which was odd for an independent trucker; (3) Diaz offered inconsistent stories regarding his illness and/or trip to Mexico; (4) Diaz was increasingly nervous from the initial permit process through the inspection; (5) Diaz’s explanation for why he scaled out was inconsistent with the use of legitimate shippers; (6) Diaz’s possession of four cell phones; (7) Diaz’s lack of a CB radio was suspicious; (8) Diaz’s claim that he sold the CB radio because he needed money was inconsistent with the fact that he had four cell phones to pay for; (9) the use of a lock and seal on the trailer was unusual given the weight and nature of the load; (10) the seal on the trailer was not unique to the shipper, even though Diaz claimed the shipper sealed the trailer; (11) the large amount of dust on the boxes was consistent with the use of a cover load; (12) the strong odor of air freshener was consistent with an attempt to mask the odor of drugs; (13) Diaz’s hesitation and nervous laughter when asked if he had marijuana in the truck indicated criminal activity; (14) Diaz told Smid he had $1,500 in cash in a bag in the tractor; and (15) the packages in the trailer contained seat cushions in terrible condition, indicating they were part of a cover load.
Aplt.App. at 297-98, 302.
Diaz contends that several of these factual findings are clearly erroneous because they “were based on nothing more than Officer Smid’s bare assertions which lacked any factual basis.” Aplt. Op. Br. at 24. Specifically, Diaz argues that there was no evidence to confirm any alleged weight discrepancy Smid found between the bill of lading and the tractor-trailer itself, that his logbook demonstrated that his statements regarding his downtime were not inconsistent, that there was no *124documented evidence of dust on boxes or air fresheners in the trailer, and that Officer Halona’s testimony indicated that Diaz was calm, not nervous, throughout the encounter. Diaz further argues that it was improper for the district court to rely solely on Officer Smid’s testimony to conclude that the details of his method of operation — his four cell phones, the use of a commercially available seal, his lack of a CB radio, etc. — were consistent with the practices of a drug trafficker.
Diaz’s arguments are not compelling. First, as we have previously noted, “[t]he credibility of witnesses, the weight to be given to evidence, and the reasonable inferences drawn from the evidence fall within the province of the district court,” Rosborough, 366 F.3d at 1148 (quoting United States v. Long, 176 F.3d 1304,1307 (10th Cir.1999)), and Diaz provided no evidence or direct testimony to contradict Officer Smid at the suppression hearing. Moreover, we have cautioned that “a court should accord deference to an officer’s ability to distinguish between innocent and suspicious actions.” United States v. Gandara-Salinas, 327 F.3d 1127, 1130 (10th Cir.2003). Therefore, we cannot conclude that the district court’s factual findings were clearly erroneous, even if they were based solely on the testimony of Officer Smid.
Thus, although our review of the record causes us to conclude that the events which relate to the district court’s final two factual findings occurred after Officer Smid’s Level Two Inspection, we accept, and in turn rely upon the remaining findings to conclude that by the end of his Level Two Inspection, Officer Smid had probable cause to believe that Diaz’s tractor-trailer contained contraband. See Gwathney, 465 F.3d at 1137-40 (holding that a trucker’s suspicious travel schedule, the presence of non-conforming packages in his trailer, a receipt indicating he had paid almost $14,000 in cash for repairs, and footprints on boxes indicating that the non-conforming packages had been placed in the trailer last, all contributed to a finding of probable cause); United States v. Anderson, 114 F.3d 1059, 1066 (10th Cir.1997) (holding that conflicting versions of travel itinerary, the presence of a communication device consistent with drug trafficking and the scent of air freshener all contributed to a finding of probable cause). In light of this conclusion we need not address the district court’s alternative findings and conclusions which support its conclusion that reasonable suspicion and consent would also serve as bases for upholding the challenged search. We conclude that the district court was correct in denying Diaz’s motion to suppress.
B. Sufficiency of the Evidence
Diaz next argues that the evidence presented at his trial was insufficient to support his conviction. We review the sufficiency of the evidence to support a criminal conviction de novo. United States v. Triana, 477 F.3d 1189, 1194 (10th Cir. 2007). In so doing, we “ask only whether, taking the evidence — both direct and circumstantial, together with the reasonable inferences to be drawn therefrom — in the light most favorable to the government, a reasonable jury could find the defendant guilty beyond a reasonable doubt.” Id. (citation and alteration omitted).
To support Diaz’s conviction for possession with intent to distribute, the government must prove beyond a reasonable doubt: (1) that Diaz knowingly possessed the marijuana; and (2) that Diaz possessed the marijuana with the specific intent to distribute it. Id. Possession may, however, be constructive. That is, possession may be found if the defendant knowingly had ownership, dominion, or control over *125the contraband and the premises where it was found. United States v. Reece, 86 F.3d 994, 996 (10th Cir.1996). However, “when the contraband may be attributed to more than one individual, constructive possession requires some nexus, link, or other connection between the defendant and the contraband.” Id.
According to Diaz, the marijuana in his trailer could reasonably be attributed either to him or to the Dollar Store and because there was no nexus or link which connected him to the contraband, the evidence was insufficient to support his conviction based on constructive possession. Even we assume, arguendo, that the marijuana found in the trailer could reasonably be attributed to the Dollar Store, Diaz’s argument is unavailing because the evidence adduced at trial did establish a nexus or link between Diaz and the contraband.
Specifically, Diaz was the sole occupant of the truck, his mode of operation and his downtime in California supported an inference of drug trafficking, his computer was shown to be capable of creating bills of lading identical to the one he presented to Officer Smid, he had a receipt for shrin-kwrap which was used to package the marijuana, and the value of the drugs made it unlikely that they would be shipped without the driver’s knowledge. In sum, the evidence was sufficient to support’s Diaz’s conviction based on a theory of constructive possession.
C. Jury Instruction
Diaz next argues that the district court erred in giving the jury the following instruction:
With respect to the question of whether or not a defendant knew that the controlled substance was present, you may, but are not required to, infer that the driver and sole occupant of a tractor trailer rig has knowledge of the controlled substance within it. This inference does not relieve the government of its obligation to prove all the elements of the offense beyond a reasonable doubt.
Aplt.App. at 674. Diaz alleges that this permissive inference instruction was not warranted by the evidence and as such it relieved the government of its burden to prove every element of the crime beyond a reasonable doubt. We review the trial court’s decision to give a particular jury instruction for an abuse of discretion, but “consider the instructions as a whole de novo to determine whether they accurately informed the jury as to the governing law.” Gwathney, 465 F.3d at 1142.
The instruction that Diaz challenges is the same instruction the defendant challenged in Gwathney. See id. at 1138. In rejecting Gwathney’s challenge to the instruction, we noted that “[a] permissive inference instruction does not violate a defendant’s Sixth Amendment rights provided there is a rational connection between the facts proved by the prosecution and the ultimate fact presumed, and the inferred fact is more likely than not to flow from the proven facts.” Id. at 1143. We went on to hold that the district court had not abused its discretion in giving the permissible inference instruction because the evidence strongly supported an inference that Gwathney knew of the marijuana in his trailer. Id. Specifically, Gwathney was the sole operator of the trailer containing the drugs, the load had not been sealed by the packers which meant Gwathney could have accessed it, and the high value of the marijuana made it unlikely that it would be shipped without the driver’s knowledge. Id.
Diaz distinguishes the facts of his case from those presented in Gwathney, pointing out that he did not own the trailer he was transporting, he was operating pursu*126ant to a “hook and drop” arrangement, and the trailer he was transporting was locked and sealed by the shipper. Diaz claims that these factual differences precluded any inference that he had knowledge of the trailer’s contents. Even assuming, ar-guendo, that the facts that Diaz relies on are meaningfully distinguishable from Gwathney, his argument is nonetheless unavailing because there remains a host of evidence to support the inference that Diaz knew about the drugs in his trailer. This evidence includes Diaz’s sole operation of the truck, the high value of the drugs, the box of seals in the tractor which were of the same make as the seal on the trailer, the bills of lading presented which were the same as those Diaz’s computer could generate, the receipt for shrinkwrap in the tractor and the various other suspicious details of Diaz’s mode of operation. Given the magnitude of this remaining evidence, the district court did not abuse its discretion in giving the jury the permissive inference instruction.
D. Expert Testimony
Diaz next contends that the district court erred in allowing Officer Smid and Agent Garver to testify as expert witnesses regarding the trucking industry and/or common drug trafficking practices. Specifically, Diaz alleges that the district court erred in allowing Smid and Garver to offer expert testimony without first ensuring that there was a reliable basis for their expertise.
Before trial, Diaz’s counsel filed a motion in limine on these grounds, but the district court chose to wait until the testimony was offered and objected to before making its ruling. During the course of the trial, however, Diaz’s counsel objected on these grounds only once toward the end of Officer Smid’s re-direct testimony and the district court correctly overruled Diaz’s objection, noting that the challenged testimony was not expert in nature. Thus, because any objections Diaz made were untimely, he has waived this issue and we will review the district court’s admission of this testimony only for plain error. See Macsenti v. Becker, 237 F.3d 1223, 1230-34 (10th Cir.2001) (holding that objections made to expert testimony after it was given were untimely and therefore reviewing the admission of the testimony only for plain error); United States v. Nichols, 169 F.3d 1255, 1264 (10th Cir.1999) (noting that unless the trial court rules upon a pretrial motion in limine without equivocation, the motion will not preserve an objection that is not renewed at the time the evidence is introduced).
Federal Rule of Evidence 702 requires trial courts to assess the reliability of expert testimony which is based on scientific, technical, or “other specialized” knowledge before admitting it. Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993); see also Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 141, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). Thus, if expert testimony is objected to at trial “the district court is required to make specific, on-the-record findings that the testimony is reliable under Daubert.” United States v. Roach, 582 F.3d 1192, 1207 (10th Cir.2009).
Much of the testimony of Officer Smid and Agent Garver was not, however, expert in nature because it was not based upon scientific, technical, or “other specialized” knowledge. Moreover, to the extent that either of the individuals’ testimony was expert in natui'e, not only did the absence of an objection excuse the district court from its duty to make “explicit on-the-record rulings” regarding reliability, see Goebel v. Denver and Rio Grande W. R.R. Co., 215 F.3d 1083, 1088 n. 2 (10th Cir.2000) (“When no objection is raised [to *127expert testimony], district courts are not required to make ‘explicit on-the-record rulings ...”), but the testimony’s reliability can also be safely inferred from the breadth of each individuals’ training and experience.1 In sum, the district court did not err in allowing the testimony of either Officer Smid or Agent Garver.
E. Evidentiary Errors
Diaz also argues that the district court denied him his constitutional right to present a defense when it refused to allow his handwriting expert to examine the original consent form, refused to permit the telephonic testimony of his former employer and excluded evidence that Diaz lacked a motive to commit the crime for which he was charged. We review the district court’s decision to exclude evidence for an abuse of discretion, but review de novo the question of whether a constitutional violation has occurred. United States v. Solomon, 399 F.3d 1231, 1239 (10th Cir.2005).
A defendant is afforded the constitutional right to present a defense by the due process clauses of both the Fifth and Fourteenth Amendments and by the Sixth Amendment’s right to compulsory process. Id. This right is, however, not without limits and thus, in presenting evidence a defendant “must comply with the established rules of evidence and procedure to assure both fairness and reliability in the ascertainment of guilt or innocence.” Id. (citation and alteration omitted). “While the trial court may not apply a rule of evidence mechanistically to defeat the ends of justice,” in order to demonstrate that his constitutional rights have been violated a defendant “must show that the exclusion of evidence rendered his trial fundamentally unfair....” Id. (quotations omitted).
1. Handwriting Expert
Shortly before trial, Diaz filed a Motion to Inspect the Consent to Search Form in which he requested that the district court direct the government to allow a handwriting expert to inspect the original consent form at his offices in nearby Santa Fe, New Mexico. The district court did not hold an evidentiary hearing on the matter, but denied Diaz’s motion in a written order in which it noted that the government had already complied with Federal Rule of Criminal Procedure 16(a)(1)(E) by allowing Diaz to inspect and copy the original consent form and found that denying access to the original form was not prejudicial to Diaz. Diaz now claims that the district court abused its discretion both in its decision on the merits and in issuing its order without first holding an evidentia-ry hearing.
Diaz’s argument is unavailing. Not only did Diaz fail to request an evidentiary hearing in his motion, but he has also subsequently failed to identify what additional evidence would have been presented at such a hearing that was not already set forth in his motion. Further, Rule 16(a)(1)(E) makes no mention of a defendant’s right to take custody of a document, but instead requires only that the government permit the defendant “to inspect and to copy” documents, a step that the government in this case had already taken. Fed.R.Crim.P. 16(a)(1)(E). Thus, the district court did not abuse its discretion in *128denying Diaz’s motion or in doing so without first holding an evidentiary hearing.
2. Telephonic Testimony
Less than a week before his trial commenced, Diaz filed a motion requesting that the district court permit his former employer to testify telephonically regarding the common practices of the trucking industry. The district court denied this motion in a written order referencing the reasons set forth at a hearing on the motion, namely that Federal Rule of Criminal Procedure 26 requires all witnesses in a criminal trial to testify in open court unless otherwise provided by statute or by rule. On appeal, Diaz contends that the district court erred in issuing its order both because it failed to acknowledge its discretion to permit telephonic testimony, and because it failed to exercise that discretion.
Diaz’s argument is without merit. The language of Rule 26 unequivocally states that all witnesses in a criminal trial must testify in open court unless otherwise provided by statute or by rules adopted under 28 U.S.C. §§ 2072-2077. See Fed. R.Crim.P. 26. Diaz has failed to point to any statute or rule which provides such an exception which would apply in this case. Thus, the district court did not abuse its discretion in declining to conclude that it had discretion to permit telephonic testimony, and/or in declining to exercise such discretion.
3. Motive Testimony
In his case-in-chief, Diaz attempted to present the testimony of Genaro Le-gorreta, an attorney who at the time was representing Diaz in a California worker’s compensation proceeding. Diaz hoped that evidence of his possible worker’s compensation recovery would establish that he did not have a financial motive to traffic in marijuana. As Legorreta began to explain his representation of Diaz, however, the district court cut off the testimony, ruling that it was irrelevant. Diaz contends that the district court abused its discretion in excluding Legorreta’s testimony because he claims that the absence of any plausible motive for his engaging in criminal conduct is highly relevant.
Once again, Diaz’s argument is unpersuasive. Even if we accept Diaz’s proposition that absence of a financial motive is relevant, given the potential jury confusion that an in-depth discussion of a worker’s compensation proceeding might cause, the district court had an adequate basis for excluding Legorreta’s testimony under Federal Rule of Evidence 403. In fact, the district court mentioned that it believed that if the testimony were allowed, “[t]he jury [was] going to think this is a civil case.” Aplt.App. at 585. As “we are required to give the trial court ‘substantial deference’ in Rule 403 rulings,” United States v. Shumway, 112 F.3d 1413, 1422 (10th Cir.1997) (quotation and citation omitted), we conclude that the district court did not abuse its discretion in excluding Legorreta’s testimony.
4.Cumulation
Finally, Diaz contends that even if each of the district court’s evidentiary rulings were only harmless error, viewed cumulatively they infringed upon his constitutional right to present a defense. Diaz’s argument fails because, as the foregoing discussion demonstrates, the district court did not err in any of its evidentiary rulings.
III.
For the reasons discussed above, we AFFIRM Diaz’s conviction under 21 U.S.C. § 841(b)(1)(A).
This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R.App. P. 32.1 and 10th Cir. R. 32.1.
. Officer Smid testified that he has possessed a commercial driver’s license since 1994, he is a certified motor carrier inspector who has attended a two-week training course on conducting inspections, and he has conducted approximately 2,500 commercial vehicle inspections, approximately fifty of which had resulted in the seizure of contraband. Agent Garver testified that in his seventeen years as a DEA special agent he has been involved in several hundred drug investigations during which he has learned about various drug trafficking practices.
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PER CURIAM:
After having thoroughly reviewed the record, the briefs and having heard oral argument in this case, we are of the opinion that the well-reasoned decision and the judgement of the district court should be and is AFFIRMED.
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ORDER
The petitioner having failed to file the required Statement Concerning Discrimination, it is
ORDERED that the petition for review be, and the same hereby is, DISMISSED, for failure to prosecute in accordance with the rules.
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ORDER
The petitioner having failed to file the required Statement Concerning Discrimination, it is
ORDERED that the petition for review be, and the same hereby is, DISMISSED, for failure to prosecute in accordance with the rules.
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ORDER
The petitioner having failed to pay the docketing fee required by Federal Circuit Rule 52(a)(1) and to file the required Statement Concerning Discrimination, it is
ORDERED that the petition for review be, and the same hereby is, DISMISSED, for failure to prosecute in accordance with the rules.
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ORDER
The petitioner having failed to pay the docketing fee required by Federal Circuit Rule 52(a)(1) within the time permitted by the rules, it is
ORDERED that the petition for review be, and the same hereby is, DISMISSED, for failure to prosecute in accordance with the rules.
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MEMORANDUM ***
Petitioner Kumar Bahadur Karmachar-ya, a native and citizen of Nepal, appeals the decision of an Immigration Judge (“IJ”), adopted and affirmed by the Board of Immigration Appeals (“BIA”), in which Karmacharya was denied asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”).
The IJ found Karmacharya’s asylum application time-barred because it was not filed within one year of arrival. The IJ also found that Karmacharya had not demonstrated the “extraordinary circumstances” required for late filing. 8 U.S.C. § 1158(a)(2)(D). This court has jurisdiction to review the BIA’s decision that an asylum application does not qualify for one of the exceptions to the one year bar, when, as here, that determination is based on undisputed facts. Fakhry v. Mukasey, 524 F.3d 1057, 1062 (9th Cir.2008) (citing Ramadan v. Gonzales, 479 F.3d 646, 654 (9th Cir.2007)).
We conclude that the IJ and BIA failed properly to address the claim that “changed circumstances” excused the untimely filing of Karmacharya’s application, and we remand to the BIA to address this question in the first instance. Although Karmacharya consistently asserted that the “changed circumstances” exception applied to his case, neither the IJ nor the BIA considered whether the arrest and beating of Karmacharya’s brother in Nepal, within weeks of which Karmacharya filed for asylum, constituted “changed circumstances.” “[I]t goes without saying that IJ’s and the BIA are not free to ignore arguments raised by a petitioner.” Sagaydak v. Gonzales, 405 F.3d 1035, 1040 (9th Cir.2005). We therefore grant this part of the petition and remand to the BIA for consideration of Karmacharya’s “changed circumstances.” See I.N.S. v. *66Orlando Ventura, 537 U.S. 12, 16, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002).
With regard to withholding of removal and CAT relief, we deny the petition for review. Petitioner’s argument that the IJ and BIA erred in the withholding and CAT analysis because they failed to fully consider Karmacharya’s asylum application is without merit. These are three distinct forms of relief. The error noted above with respect to Karmacharya’s asylum application is irrelevant to his claims for •withholding or CAT relief.
DENIED in part; GRANTED in part and REMANDED.
xhiS disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Manjinder Singh, a native and citizen of India, petitions for review of the Board of Immigration Appeals’ order dismissing his appeal from an immigration judge’s (“IJ”) decision denying his application for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). Our jurisdiction is governed by 8 U.S.C. § 1252. We review for substantial evidence, Husyev v. Mukasey, 528 F.3d 1172, 1177 (9th Cir.2008), and we deny in part and dismiss in part the petition for review.
The record does not compel the conclusion that Singh established changed or extraordinary circumstances to excuse his late filed asylum application. See 8 C.F.R. § 1208.4(a)(4),(5). Accordingly, Singh’s asylum claim fails.
Substantial evidence supports the IJ’s adverse credibility determination because Singh lied in his original asylum application about his entry date into the United States and admitted his lie only when confronted by immigration officials. See Sarvia-Quintanilla v. INS, 767 F.2d 1387, 1393 (9th Cir.1985) (substantial evidence supported the IJ’s credibility finding where the petitioner admitted, inter alia, “that he had lied under oath to U.S. immigration officials so that he would not be deported”); see also Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir.2003) (date of entry is one of the key elements of the asylum application that must be credibly established by the applicant). In the absence of credible testimony, Singh’s withholding of removal claim fails. See id.
Because Singh’s CAT claim is based on the testimony the IJ found not credible, and Singh points to no other evidence to show it is more likely than not he would be tortured if returned to India, his CAT claim fails. See id. at 1156-57.
We lack jurisdiction to review the IJ’s discretionary denial of voluntary departure. See 8 U.S.C. §§ 1229c(f), 1252(a)(2)(B)(i). We therefore dismiss the petition as to Singh’s voluntary departure claim.
*72We also lack jurisdiction to review Singh’s remaining due process challenge because he failed to exhaust the issue before the BIA. See Barron v. Ashcroft, 358 F.3d 674, 676-78 (9th Cir.2004).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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01-04-2023
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MEMORANDUM **
Bin Bin Yang, a native and citizen of China, petitions for review of the Board of Immigration Appeals’ order affirming an immigration judge’s decision to deny his application for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”) on the basis of adverse credibility determinations. We have jurisdiction under 8 U.S.C. § 1252. After reviewing the factual findings for substantial evidence, see Singh v. Gonzales, 439 F.3d 1100, 1105 (9th Cir.2006), we deny the petition for review.
The record does not compel reversal of the adverse credibility determinations because Yang testified inconsistently regarding his claim that family planning authorities attempted to force his fiancée to undergo an abortion. See 8 U.S.C. § 1158(b)(l)(B)(iii) (providing that under the REAL ID Act, an immigration judge may base a credibility determination on the consistency of the applicant’s statements, regardless of whether it goes to the heart of the applicant’s claim); Kaur v. Gonzales, 418 F.3d 1061, 1067 (9th Cir. 2005) (inconsistencies deprive an applicant’s testimony of the requisite “ring of truth”). The record also establishes that Yang did not provide a credible explanation for why he failed to provide documentary evidence in support of his claim. See Sidhu v. INS, 220 F.3d 1085, 1091 n. 3 (9th Cir.2000) (holding that an immigration judge could determine that an applicant’s explanation for a lack of corroboration was not credible).
In the absence of credible testimony, Yang failed to demonstrate eligibility for asylum or withholding of removal. See Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir.2003). Furthermore, because Yang’s CAT claim relies on the same evidence the immigration judge found not credible, and he does not point to additional evidence to show it is more likely than not that he *77would be tortured if he returned to China, his CAT claim fails. See id. at 1157.
PETITION FOR REVIEW DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8475503/
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PER CURIAM:
After having thoroughly reviewed the record, the briefs and having heard oral argument in this case, we are of the opinion that the well-reasoned decision and the judgement of the district court should be and is AFFIRMED.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8475506/
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ORDER
The petitioner having failed to file the required Statement Concerning Discrimination, it is
ORDERED that the petition for review be, and the same hereby is, DISMISSED, for failure to prosecute in accordance with the rules.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8475508/
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ORDER
The petitioner having failed to file the required Statement Concerning Discrimination, it is
ORDERED that the petition for review be, and the same hereby is, DISMISSED, for failure to prosecute in accordance with the rules.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8475510/
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ORDER
The petitioner having failed to pay the docketing fee required by Federal Circuit Rule 52(a)(1) and to file the required Statement Concerning Discrimination, it is
ORDERED that the petition for review be, and the same hereby is, DISMISSED, for failure to prosecute in accordance with the rules.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8475521/
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ORDER
PER CURIAM.
The court has received a certified copy of the judgment from the Clerk of the Supreme Court of the United States in Carlsbad Technology, Inc. v. HIF Bio, Inc., 556 U.S. -, 129 S.Ct. 1862, 173 L.Ed.2d 848 (2009).
Upon consideration thereof,
IT IS ORDERED THAT:
(1) The mandate issued on February 15, 2008, is hereby recalled and the appeal is reinstated.
(2) The case is returned for consideration to the original merits panel.
(3) The Supreme Court reversed the judgment of this court and remanded the case to this court to conduct further proceedings consistent with its opinion. Appellant filed a motion for submission of supplemental briefings and oral argument. The motion is granted to the extent noted below:
(a)Appellant’s initial supplemental brief is due 20 days from the date of filing of this order;
(b) Appellees’ responsive supplemental brief is due 20 days after service of Appellant’s initial supplemental brief;
(c) Appellant’s reply brief is due 10 days from service of Appellees’ responsive initial supplemental brief; and
(d) The two initial briefs are limited to 20 pages and the final reply is limited to 10 pages and in all other respects shall be in accordance with the Court’s rules.
(4)Oral argument may be scheduled if it is deemed necessary.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8475523/
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PER CURIAM.
ORDER
The court has received a certified copy of the judgment from the Clerk of the Supreme Court of the United States in United States v. Navajo Nation, — U.S. -, 129 S.Ct. 1547, 173 L.Ed.2d 429 (2009).
Upon consideration thereof,
IT IS ORDERED THAT:
(1)The mandate issued on January 22, 2008, is hereby recalled and the appeal is reinstated.
(2) The case is returned for consideration to the original merits panel.
(3) The Supreme Court has remanded this case to this court, and directed this court to affirm the Court of Federal Claims in its dismissal of the Tribe’s complaint. The judgment of the trial court is hereby affirmed.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8475525/
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ORDER
The parties having so agreed, it is
ORDERED that the proceeding is DISMISSED under Fed. R.App. P. 42(b).
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8475528/
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ON MOTION
ORDER
Avid Identification Systems, Inc. moves to recall the mandate and for reconsideration of the court’s order dismissing this appeal for failure to file a corrected opening brief, the corrected opening brief now having been submitted.
Upon consideration thereof,
IT IS ORDERED THAT:
(1) The motions are granted. The mandate is recalled, the dismissal order is vacated, and the case is reinstated.
(2) Because it appears that no party will be participating as an appellee, the revised official caption is reflected above. If the appellant intends to file a joint appendix, the appendix is due within 14 days of the date of filing of this order.
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01-04-2023
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https://www.courtlistener.com/api/rest/v3/opinions/8475531/
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*378ORDER
The appellant(s) having failed to file the required Entry of Appearance form by an attorney admitted to the bar of this court, and having failed to file the brief required by Federal Circuit Rule 31(a) within the time permitted by the rules, it is
ORDERED that the petition for review be, and the same hereby is, DISMISSED, for failure to prosecute in accordance with the rules.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8475533/
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ON MOTION
ORDER
Henry E. Gossage submits a USERRA Notification Form indicating that his case before the Merit Systems Protection Board involved a claim under the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) and thus he is not required to pay the filing fee. The court considers whether to vacate its June 16, 2009 order dismissing Gossage’s petition for review for failure to pay the fee.
Upon consideration thereof,
IT IS ORDERED THAT:
(1) The June 16, 2009 dismissal order is vacated, the mandate is recalled, and the petition for review is reinstated.
(2) Gossage’s brief is due within 21 days of the date of service of the certified index.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8475537/
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ORDER
The court considers whether to dismiss this petition for review.
Because the petitioner sought simultaneous review of the Administrative Judge’s decision by the Merit Systems Protection Board and by this court, this court in a March 20, 2009 order directed that, unless the petitioner informed this court that she had withdrawn her petition for review that she filed at the Board, the above-captioned petition for review would be dismissed. The petitioner has not informed the court that she withdrew her petition for review at the Board.
Accordingly,
IT IS ORDERED THAT:
(1) Pursuant to the court’s March 20, 2009 order, this petition for review is dismissed.
(2) Each side shall bear its own costs.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8475522/
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ORDER
PER CURIAM.
The court has received a certified copy of the judgment from the Clerk of the Supreme Court of the United States in Carlsbad Technology, Inc. v. HIF Bio, Inc., 556 U.S. -, 129 S.Ct. 1862, 173 L.Ed.2d 848 (2009).
Upon consideration thereof,
IT IS ORDERED THAT:
(1) The mandate issued on February 15, 2008, is hereby recalled and the appeal is reinstated.
(2) The case is returned for consideration to the original merits panel.
(3) The Supreme Court reversed the judgment of this court and remanded the case to this court to conduct further proceedings consistent with its opinion. Appellant filed a motion for submission of supplemental briefings and oral argument. The motion is granted to the extent noted below:
(a)Appellant’s initial supplemental brief is due 20 days from the date of filing of this order;
(b) Appellees’ responsive supplemental brief is due 20 days after service of Appellant’s initial supplemental brief;
(c) Appellant’s reply brief is due 10 days from service of Appellees’ responsive initial supplemental brief; and
(d) The two initial briefs are limited to 20 pages and the final reply is limited to 10 pages and in all other respects shall be in accordance with the Court’s rules.
(4)Oral argument may be scheduled if it is deemed necessary.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8475526/
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ORDER
The parties having so agreed, it is
ORDERED that the proceeding is DISMISSED under Fed. R.App. P. 42(b).
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8475530/
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ON MOTION
ORDER
Upon consideration of the appellant’s motion to withdraw this appeal,
IT IS ORDERED THAT:
(1) The motion is granted. The appeal is dismissed.
(2) Each side shall bear its own costs.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8475532/
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*378ORDER
The appellant(s) having failed to file the required Entry of Appearance form by an attorney admitted to the bar of this court, and having failed to file the brief required by Federal Circuit Rule 31(a) within the time permitted by the rules, it is
ORDERED that the petition for review be, and the same hereby is, DISMISSED, for failure to prosecute in accordance with the rules.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8475534/
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ON MOTION
ORDER
Henry E. Gossage submits a USERRA Notification Form indicating that his case before the Merit Systems Protection Board involved a claim under the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) and thus he is not required to pay the filing fee. The court considers whether to vacate its June 16, 2009 order dismissing Gossage’s petition for review for failure to pay the fee.
Upon consideration thereof,
IT IS ORDERED THAT:
(1) The June 16, 2009 dismissal order is vacated, the mandate is recalled, and the petition for review is reinstated.
(2) Gossage’s brief is due within 21 days of the date of service of the certified index.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8475536/
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ORDER
The petitioner having failed to pay the docketing fee required by Federal Circuit Rule 52(a)(1) and to file the required Statement Concerning Discrimination, it is
ORDERED that the petition for review be, and the same hereby is, DISMISSED, for failure to prosecute in accordance with the rules.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8475538/
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ORDER
The court considers whether to dismiss this petition for review.
Because the petitioner sought simultaneous review of the Administrative Judge’s decision by the Merit Systems Protection Board and by this court, this court in a March 20, 2009 order directed that, unless the petitioner informed this court that she had withdrawn her petition for review that she filed at the Board, the above-captioned petition for review would be dismissed. The petitioner has not informed the court that she withdrew her petition for review at the Board.
Accordingly,
IT IS ORDERED THAT:
(1) Pursuant to the court’s March 20, 2009 order, this petition for review is dismissed.
(2) Each side shall bear its own costs.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8475545/
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ON MOTION
PER CURIAM.
ORDER
Dennis J. Solomon responds to the court’s order permitting him to respond concerning why his appeal should not be transferred to the United States Court of Appeals for the District of Columbia Circuit.
Solomon filed a complaint in the United States District Court for the District of Columbia (1) alleging a violation of civil rights and due process by the Trademark Trial and Appeal Board in the processing of Solomon’s trademark application, (2) challenging the University of Southern California’s (USC) standing to oppose his trademark application before the Board, (3) alleging that USC and other defendants attempted to monopolize technology and interfere with interstate commerce, (4) alleging that USC defrauded the United States government, and (5) alleging that USC and a United States Army officer conspired to interfere with business relations and engaged in unfair competition by opposing Solomon’s trademark application. The district court determined that Solomon’s complaint was barred by res judica-ta based on two prior complaints filed by Solomon in the United States District Court for the District of Massachusetts. The district court denied Solomon’s motion for reconsideration, and Solomon appealed to this court.
Solomon argues that this appeal is within this court’s jurisdiction. Solomon contends that his complaint sought relief under 28 U.S.C. § 1338(a) and (b). However, assuming that Solomon is correct that his claim fell within section 1338, this court does not have jurisdiction over appeals where the district court’s jurisdiction arose under section 1338 if the claims are related only to trademark. See 28 U.S.C. § 1295(a)(1). Thus, this court lacks jurisdiction and must transfer.
Accordingly,
IT IS ORDERED THAT:
The appeal is transferred to the United States Court of Appeals for the District of Columbia Circuit.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8475548/
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ON MOTION
ORDER
Upon consideration of the parties’ joint motion to remand this case, Anchor Wall v. Rockwood Retaining, to the United States District Court for the District of Minnesota, no. 99-CV-1856, for further proceedings consistent with the settlement agreement reached by the parties,
IT IS ORDERED THAT:
(1) The motion is granted.
(2) Each side shall bear its own costs.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8475549/
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ORDER
Pursuant to this court’s order filed June 16, 2009,
IT IS ORDERED THAT:
The appeal is hereby transferred to the U.S. Court of Appeals for the District of Columbia Circuit.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8475551/
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*383ORDER
The parties having so agreed, it is
ORDERED that the proceeding is DISMISSED under Fed. R.App. P. 42(b).
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8475553/
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ON MOTION
ORDER
Bags On The Net Corp. moves without opposition to dismiss its appeal.*
Upon consideration thereof,
IT IS ORDERED THAT:
(1) The motion is granted.
(2) Each side shall bear its own costs.
Bags On The Net requests that this dismissal be without prejudice; however, it is not the practice of this court to dismiss with or without prejudice.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8475555/
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ON MOTION
ORDER
Tomar Electronics, Inc. moves without opposition to dismiss its appeal due to settlement.*
Upon consideration thereof,
IT IS ORDERED THAT:
(1) The motion is granted.
(2) Each side shall bear its own costs.
Tomar requests that this dismissal be without prejudice; however, it is not the practice of this court to dismiss with or without prejudice.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8475557/
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*385ORDER
The appellant having failed to file the brief required by Federal Circuit Rule 81(a) within the time permitted by the rules, it is
ORDERED that the notice of appeal be, and the same hereby is, DISMISSED, for failure to prosecute in accordance with the rules.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8475560/
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ORDER
The order of dismissal and the mandate having been issued in error,
Upon consideration thereof,
IT IS ORDERED THAT:
(1) The court’s July 2, 2009 dismissal order is vacated, the mandate is recalled, and the notice of appeal is reinstated.
(2) Respondent’s brief is due on or before August 3, 2009.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8475564/
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ORDER
The appellant having failed to file the brief required by Federal Circuit Rule 31(a) within the time permitted by the rules, it is
ORDERED that the notice of appeal be, and the same hereby is, DISMISSED, for *386failure to prosecute in accordance with the rules.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8475566/
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ORDER
The petitioner having failed to pay the docketing fee required by Federal Circuit Rule 52(a)(1) and to file the required Statement Concerning Discrimination, it is
ORDERED that the petition for review be, and the same hereby is, DISMISSED, for failure to prosecute in accordance with the rules.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8475567/
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ORDER
The petitioner having failed to pay the docketing fee required by Federal Circuit Rule 52(a)(1) and to file the required Statement Concerning Discrimination, it is
ORDERED that the petition for review be, and the same hereby is, DISMISSED, for failure to prosecute in accordance with the rules.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8475547/
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ON MOTION
ORDER
Upon consideration of the parties’ joint motion to remand this case, Anchor Wall v. Rockwood Retaining, to the United States District Court for the District of Minnesota, no. 99-CV-1856, for further proceedings consistent with the settlement agreement reached by the parties,
IT IS ORDERED THAT:
(1) The motion is granted.
(2) Each side shall bear its own costs.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8475552/
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*383ORDER
The parties having so agreed, it is
ORDERED that the proceeding is DISMISSED under Fed. R.App. P. 42(b).
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8475554/
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ON MOTION
ORDER
Bags On The Net Corp. moves without opposition to dismiss its appeal.*
Upon consideration thereof,
IT IS ORDERED THAT:
(1) The motion is granted.
(2) Each side shall bear its own costs.
Bags On The Net requests that this dismissal be without prejudice; however, it is not the practice of this court to dismiss with or without prejudice.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8475559/
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ORDER
The order of dismissal and the mandate having been issued in error,
Upon consideration thereof,
IT IS ORDERED THAT:
(1) The court’s July 2, 2009 dismissal order is vacated, the mandate is recalled, and the notice of appeal is reinstated.
(2) Respondent’s brief is due on or before August 3, 2009.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8475561/
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ORDER
The appellant having failed to pay the docketing fee required by Federal Circuit Rule 52(a)(1) within the time permitted by the rules, it is
ORDERED that the notice of appeal be, and the same hereby is, DISMISSED, for failure to prosecute in accordance with the rules.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8475563/
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ORDER
The appellant having failed to file the brief required by Federal Circuit Rule 31(a) within the time permitted by the rules, it is
ORDERED that the notice of appeal be, and the same hereby is, DISMISSED, for *386failure to prosecute in accordance with the rules.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8475565/
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ORDER
The petitioner having failed to pay the docketing fee required by Federal Circuit Rule 52(a)(1) and to file the required Statement Concerning Discrimination, it is
ORDERED that the petition for review be, and the same hereby is, DISMISSED, for failure to prosecute in accordance with the rules.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8475568/
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ORDER
The petitioner having failed to pay the docketing fee required by Federal Circuit Rule 52(a)(1) and to file the required Statement Concerning Discrimination, it is
ORDERED that the petition for review be, and the same hereby is, DISMISSED, for failure to prosecute in accordance with the rules.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8475572/
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ORDER
The parties having so agreed, it is
ORDERED that the proceeding is DISMISSED under Fed. R.App. P. 42(b).
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8475573/
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ON MOTION
ORDER
MAYER, Circuit Judge.
Sanofí-Aventis et al. (Sanofi) submit correspondence that the court treats as a motion for summary affirmance and issuance of the mandate. Sanofi states that Teva Pharmaceuticals USA, Inc. consents.
*389This appeal was stayed pending the court’s disposition of Sanofi-Aventis v. Apotex, 2007-1438. In Apotex, the court affirmed the district court’s ruling that Sanofi’s patent was not invalid. Sanofi states that Sanofi and Teva agree that, in light of the court’s disposition in Apotex, this appeal should be disposed of by issuance of a mandate affirming the trial court’s decision.
Accordingly,
IT IS ORDERED THAT:
(1) The motion is granted. The judgment of the United States District Court for the Southern District of New York is summarily affirmed and the mandate is issued herewith.
(2) Each side shall bear its own costs.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8475575/
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ON MOTION
ORDER
Jewel Marshall-Mosby moves motion for reconsideration of the court’s order dismissing her petition for review for failure to file an appendix.
The court sua sponte grants Marshall-Mosby an extension of time to file her reply brief and the appendix.
Accordingly,
The motion is granted. The mandate is recalled, the dismissal order is vacated, and the petition is reinstated.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8475578/
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ORDER
Petitioner having filed the required Statement Concerning Discrimination,
Upon consideration thereof,
IT IS ORDERED THAT:
(1) The court’s July 24, 2009, — Fed. Appx. -, 2009 WL 5607070, dismissal order is vacated, the mandate is recalled, and the petition for review is reinstated.
(2) Respondent’s brief is due on or before August 20, 2009.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8475582/
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ON MOTION
ORDER
Defendant the United States moves to remand or dismiss as moot the appeal herein, Court of Federal Claims Case No. 08-CV-515. Plaintiff L-3 Communications Eotech agrees, and also states that it will not appeal the decision of the Court of Federal Claims in Case No. 08-911C. Defendant Aimpoint, Inc. agrees to the dismissal and states that remand is appropriate so that the Court of Federal Claims may dissolve its injunction imposed in August 2008. By notice of July 29, 2009, Aimpoint, Inc. filed a voluntary dismissal of its appeal.
Accordingly,
IT IS ORDERED THAT:
1. The motion to dismiss the appeal is granted.
2. The case is remanded to the Court of Federal Claims, for any further proceedings that may be appropriate to conclude this case.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8475586/
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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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01-04-2023
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https://www.courtlistener.com/api/rest/v3/opinions/8475587/
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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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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8475589/
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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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https://www.courtlistener.com/api/rest/v3/opinions/8475592/
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*411Judgment
PER CURIAM.
This CAUSE having been heard and considered, it is
ORDERED and ADJUDGED:
AFFIRMED. See Fed. Cir. R. 36.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8475594/
|
Judgment
PER CURIAM.
This CAUSE having been heard and considered, it is
ORDERED and ADJUDGED:
AFFIRMED. See Fed. Cir. R. 36.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8475596/
|
Judgment
PER CURIAM.
This CAUSE having been heard and considered, it is ORDERED and ADJUDGED:
AFFIRMED. See Fed. Cir. R. 36.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8475570/
|
ON MOTION
ORDER
RADER, Circuit Judge.
Respondent Department of Transportation (“DOT”) moves this court in its brief to vacate the decision of the Merit Systems Protection Board (“Board”) with respect to the Board’s res judicata ruling and grant its unopposed motion under Fed. Cir. R. 27(f) to remand this case with instructions to permit the pro se Petitioner Euwan Y.A. Godfrey (“Ms. Godfrey”) to proceed with her retaliation and hostile work environment claims on the mertis. Counsel for DOT alleges they were unable to contact Ms. Godfrey to determine whether she would consent to their motion under Fed. Cir. R. 27(a)(5) as no telephone number is listed for her. Counsel for the Board, Jeffrey Gauger, represents that the Board takes no position on the motion to remand. DOT Br. at 1-2 n. 1,13-14.
This court agrees that vacatur and remand is appropriate.
Accordingly,
IT IS ORDERED THAT:
(1) DOT’S unopposed motion to vacate and remand is granted.
(2) Each party shall bear its own costs.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8475574/
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ON MOTION
ORDER
MAYER, Circuit Judge.
Sanofí-Aventis et al. (Sanofi) submit correspondence that the court treats as a motion for summary affirmance and issuance of the mandate. Sanofi states that Teva Pharmaceuticals USA, Inc. consents.
*389This appeal was stayed pending the court’s disposition of Sanofi-Aventis v. Apotex, 2007-1438. In Apotex, the court affirmed the district court’s ruling that Sanofi’s patent was not invalid. Sanofi states that Sanofi and Teva agree that, in light of the court’s disposition in Apotex, this appeal should be disposed of by issuance of a mandate affirming the trial court’s decision.
Accordingly,
IT IS ORDERED THAT:
(1) The motion is granted. The judgment of the United States District Court for the Southern District of New York is summarily affirmed and the mandate is issued herewith.
(2) Each side shall bear its own costs.
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01-04-2023
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11-05-2022
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