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MEMORANDUM **
Plaintiff Alice H. Morgan appeals, and Defendant Chicago Title Insurance Company cross-appeals, the district court’s judgment in favor of Plaintiff on one claim and the order of limited attorney’s fees and prejudgment interest to Plaintiff. We affirm.
1. Reviewing de novo, United States v. Perez, 475 F.3d 1110, 1112 (9th Cir.2007), we hold that the district court correctly recognized that it was bound by the mandate in Morgan v. Chicago Title Insurance Co. (“Morgan II”), 230 Fed.Appx. 656 (9th Cir.2007) (unpublished decision) (affirming in part, reversing in part, and remanding for further proceedings). To the extent that Plaintiff argues that we should reconsider our decision in Morgan II under an exception to the law of the case doctrine, we decline to do so because none of the exceptions applies here. See Disimone v. Browner, 121 F.3d 1262, 1266 (9th Cir.1997) (listing the exceptions).
2. The district court did not err in granting judgment in favor of Plaintiff on the compensatory damages claim. See Morgan II, 230 Fed.Appx. at 658 (remanding for further proceedings on this point). The district court did not clearly err in finding that the surrender of the $30,096.64 judgment was reasonable and in good faith. See Cal. Pharmacists Ass’n v. Maxwell-Jolly, 563 F.3d 847, 849 (9th Cir.2009) (order) (holding that we review factual findings for clear error). Nor did the district court commit legal error. See id. (holding that we review de novo the district court’s legal conclusions).
3. The district court did not abuse its discretion or otherwise err in awarding attorney’s fees to Plaintiff. See Avery v. First Resolution Mgmt. Corp., 568 F.3d 1018, 1021 (9th Cir.2009) (holding that we review for abuse of discretion a district court’s award of attorney’s fees), petition for cert, filed, 78 U.S.L.W. 3113 (U.S. Aug. 14, 2009) (No. 09-300). Plaintiff’s arguments challenging the correctness of Morgan II were plainly foreclosed by the rule of mandate; the district court reasonably declined to award attorney’s fees for the hours spent on those arguments. The district court’s 10% reduction for Plaintiffs use of quarter-hour billing was not an abuse of discretion. Welch v. Metro. Life Ins. Co., 480 F.3d 942, 949 (9th Cir.2007). The district court properly rejected Plaintiffs arguments that this case materially differed from Welch. The district court correctly held that there is no 25% cap on attorney’s fees here, where the fees are awarded pursuant to Hawaii Revised Statutes section 431:10-242. In determining reasonable attorney’s fees, the district court correctly applied Hawaii law, as described in Schefke v. Reliable Collection Agency, Ltd., 96 Hawai’i 408, 32 P.3d 52, 89 (2001). Finally, the district court’s ultimate determination of reasonable attorney’s fees was within its discretion.
*74. The district court did not abuse its discretion or otherwise err in awarding prejudgment interest under state law. See Champion Produce, Inc. v. Ruby Robinson Co., 342 F.3d 1016, 1020 (9th Cir.2003) (holding that we review for abuse of discretion the district court’s award of prejudgment interest under state law). The district court’s determination of the commencement date for purposes of calculating prejudgment interest was within its discretion. See Haw.Rev.Stat. § 636-16 (“In awarding interest in civil cases, the judge is authorized to designate the commencement date to conform with the circumstances of each case.... ”); Eckard Brandes, Inc. v. Riley, 338 F.3d 1082, 1088 (9th Cir.2003) (discussing the district court’s discretion concerning the award of prejudgment interest under Hawaii Revised Statutes section 636-16).
AFFIRMED. The parties shall bear their own costs on appeal.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
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*8MEMORANDUM **
Bryan Davis, Sr., a California state prisoner, appeals pro se from the district court’s judgment dismissing sua sponte his 42 U.S.C. § 1983 action for failure to exhaust administrative remedies pursuant to the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a). We have jurisdiction under 28 U.S.C. § 1291. We review de novo, Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir.2000), and we reverse and remand.
On the complaint form instructing him to explain briefly what happened at each level of the grievance process, Davis described what happened at the first and second levels of the process, wrote “third level” and did not give further details. The face of the complaint does not clearly concede nonexhaustion because it does not clearly show that Davis did not proceed to the third level of review, or that he was required to do so. See Brown v. Valoff, 422 F.3d 926, 935 (9th Cir.2005) (explaining that there are circumstances where an inmate may not be required to exhaust all levels of review). Therefore we reverse the order of dismissal and remand for further proceedings. See Wyatt v. Ter-hune, 315 F.3d 1108, 1120 (9th Cir.2003) (reversing order of dismissal where the record was not clear that the inmate had conceded nonexhaustion).
REVERSED 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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MEMORANDUM ***
Appellant, Anne Cates, appeals from the district court’s summary judgment in favor of Appellees Public Employee Retirement System of Nevada, Dana Bilyeu, Tina Leiss, and Holly Zimmermann (collectively, “PERS”) in Cates’s employment action against PERS. Cates alleged that she was retaliated against and constructively discharged from her employment because she filed workplace grievances after receiving negative performance evaluations, and because she took medical leave and qualified leave pursuant to the Family Medical Leave Act of 1993 (“FMLA”). Cates asserted a claim under 42 U.S.C. § 1983 for violation of her rights under the First Amendment, a claim under the FMLA, and a claim under Nevada law for tortious constructive discharge. We review the district court’s grant of summary judgment de novo, Gorman v. Wolpoff & Abramson, LLP, 552 F.3d 1008, 1013 (9th Cir.2009), and we affirm.
The district court properly granted summary judgment on Cates’s First Amendment claim because Cates failed to raise a genuine issue of material fact as to whether she engaged in protected speech. To survive summary judgment, Cates had to show that her speech involved a matter of public concern. Connick v. Myers, 461 U.S. 138, 147, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983). Cates’s grievances challenging her negative performance evaluations, however, were personal and private matters that were of no concern to the public. Ulrich v. City & County of San Francisco, 308 F.3d 968, 978 (9th Cir.2002).
*10The district court also properly granted summary judgment on Cates’s FMLA claim. 29 U.S.C. § 2601, et seq. Cates failed to present evidence that she suffered an adverse employment action as a result of her leave of absence. See Bachelder v. Am. W. Airlines, Inc., 259 F.3d 1112, 1124-26 (9th Cir.2001). Applying the “totality of the circumstances” standard, PERS made no significant change in Cates’s employment status, such as firing or demoting her or reassigning her with significantly different responsibilities, nor did PERS make any decision that caused a significant change in Cates’s salary or benefits. Brooks v. City of San Mateo, 229 F.3d 917, 928-29 (9th Cir.2000). The limited reassignment of Cates’s email and custom correspondence duties as well as her retirement counseling coordinator duties constituted an insignificant change in her employment status, and did not, individually or cumulatively, constitute an adverse employment action. Ray v. Henderson, 217 F.3d 1234, 1245 (9th Cir.2000).
Finally, the district court properly granted summary judgment on Cates’s claim for tortious constructive discharge. Martin v. Sears, Roebuck & Co., 111 Nev. 923, 899 P.2d 551, 553 (1995). Cates’s subjective descriptions of her supervisors’ body language and eye contact fall short of the proof necessary to establish working conditions so intolerable that a reasonable person in Cates’s position would resign or feel that she had no choice but to leave her position.
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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*137MEMORANDUM ***
Joseph Danny Prophet, a California state prisoner, appeals pro se from the district court’s judgment dismissing his 42 U.S.C. § 1983 action for failure to state a claim. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo a dismissal under 28 U.S.C. § 1915A. Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir.2000). We affirm.
The district court properly dismissed the action because the amended complaint failed to allege facts suggesting that the defendants hindered Prophet’s efforts to pursue a nonfrivolous legal claim, and Prophet failed to correct the deficiencies in the complaint though he was given an opportunity to do so. See id. at 449 (“In a constitutional tort, as in any other, a plaintiff must allege that the defendant’s actions caused him some injury”); Lewis v. Casey, 518 U.S. 343, 354-55, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996) (holding that a prisoner’s right to access the courts is limited to the pursuit of a non-frivolous claim concerning his conviction or conditions of confinement); see also Miller v. Yokohama Tire Corp., 358 F.3d 616, 622 (9th Cir.2004) (‘Where the plaintiff has previously filed an amended complaint ... the district court’s discretion to deny leave to amend is particularly broad.”).
Prophet’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 **
Billa Singh, a native and citizen of India, petitions for review of an immigration judge’s (“IJ”) exclusion order. We dismiss the petition for lack of jurisdiction.
We lack jurisdiction over Singh’s contentions that the IJ’s November 29, 1994, exclusion order is not valid because Singh failed to exhaust his administrative remedies. See 8 U.S.C. § 1252(d)(1); Puga v. Chertoff, 488 F.3d 812, 815 (9th Cir.2007).
To the extent Singh is challenging the government’s decision to execute the exclusion order, we lack jurisdiction. See 8 U.S.C. § 1252(g).
In light of our disposition, Singh’s motion to supplement the record is moot.
PETITION FOR REVIEW DISMISSED.
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 **
Apriyanto, a native and citizen of Indonesia, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration judge’s decision denying his application for *163asylum and withholding of removal. We have jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence, Wak-kary v. Holder, 558 F.3d 1049, 1056 (9th Cir.2009), and we deny the petition for review.
Substantial evidence supports the BIA’s finding that Apriyanto failed to establish past persecution because the harassment and discrimination he experienced in Indonesia did not rise to the level of persecution, see id. at 1059-60, and because the death of Apriyanto’s sister was not part of a pattern of persecution closely tied to him, see id. at 1060. Substantial evidence also supports the agency’s denial of asylum because even if the disfavored group analysis set forth in Sael v. Ashcroft, 386 F.3d 922, 927-29 (9th Cir.2004) applies to Christian Indonesians, Apriyanto did not show sufficient individualized risk to demonstrate a well-founded fear of future persecution, see Lolong v. Gonzales, 484 F.3d 1173, 1180-81 (9th Cir.2007) (en banc). In addition, the record does not compel the conclusion that the religious strife in Indonesia amounts to a pattern or practice of persecution against Christian Indonesians. See Wakkary, 558 F.3d at 1061-62.
Lastly, substantial evidence also supports the BIA’s conclusion that Apriyanto’s fear of future persecution based on potential harm to his U.S. citizen daughter is not objectively reasonable. See Nagoulko v. I.N.S., 333 F.3d 1012, 1018 (9th Cir.2003).
Because Apriyanto failed to establish eligibility for asylum, it necessarily follows that he cannot meet the more stringent standard for withholding of removal. See Zehatye v. Gonzales, 453 F.3d 1182, 1190 (9th Cir.2006).
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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*164MEMORANDUM **
Larry S. Domingo appeals from the district court’s denial of the motion he filed pursuant to Rule 60(b) of the Federal Rules of Civil Procedure. Pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), Domingo’s counsel has filed a brief stating there are no grounds for relief, along with a motion to withdraw as counsel of record. We have provided the appellant with the opportunity to file a pro se supplemental brief. No pro se supplemental brief or answering brief has been filed.
Our independent review of the record pursuant to Penson v. Ohio, 488 U.S. 75, 80-81, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), discloses no arguable grounds for relief on appeal.
Accordingly, counsel’s motion to withdraw is GRANTED, and the district court’s judgment is 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 AND JUDGMENT*
STEPHEN H. ANDERSON, Circuit Judge.
After examining the briefs and appellate record, this panel has determined unani*172mously that oral argument would not materially assist in the determination of this appeal. See Fed. R.App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.
Petitioner and appellant David E. Lan-dess appeals from an order and decision of the Tax Court upholding the determinations of the Internal Revenue Service (“IRS”) Office of Appeals. We affirm.
BACKGROUND
Mr. Landess lives in New Mexico and, from February 2000 until the present time, has had a mailing address of P.O. Box 18, Santa Teresa, New Mexico 88008. In April of 2000, Mr. Landess filed an income tax return for 1999, which reported an adjusted gross income of $138,096 and an income tax liability of $23,685. He received a refund of approximately $14,000 that year.
Through information gleaned from returns filed with the IRS by third-party payors, the IRS learned that Mr. Landess had received substantial income in 2000, 2001, 2002 and 2003. He did not, however, file tax returns for those years.
On January 5, 2006, the IRS sent to Mr. Landess at his mailing address a notice of deficiency describing income tax deficiencies and penalties as follows:
Year Deficiency § 6651(a)(2) § 6651(f) § 6654
2000 $71,748 $17,937 $52,017 $3,832
2001 $13,910 $ 3,130 $10,085 $ 556
2002 $23,658 $ 3,904 $17,152 $ 791
2003 $ 9,979 $ 1,048 $ 7,235 $ 261
These deficiencies were based on income reported to the IRS. The penalties were for failure to pay tax (26 U.S.C. § 6651(a)(2)), fraudulent failure to file returns (26 U.S.C. § 6651(f)), and failure to pay estimated tax (26 U.S.C. § 6654). Mr. Landess did not petition the Tax Court, and the IRS assessed the amounts stated in the notice of deficiency.
Additionally, Mr. Landess was, at all times relevant to this appeal, an employee of Gardner Turfgrass, Inc. In February 2000, Mr. Landess sent a letter to Gardner demanding that it stop withholding income taxes from his wages. In 2001 and 2002, Mr. Landess gave to Gardner his W-4 forms which declared himself to be exempt from federal income tax withholding. Although the Commissioner was unable to locate Mr. Landess’s W-4 form for 2004, other information and materials in the IRS’s possession indicate that Mr. Lan-dess had taken the same position in 2004— i.e., he claimed he was exempt from withholding. Accordingly, Mr. Landess’s wages and income tax withheld are as follows:
Year Wages Income tax withheld
2001 $117,135 $9
2002 $149,571 $0
2003 $ 94,079 $0
2004 $ 87,102_$0_
Meanwhile, on December 6, 2004, the IRS had sent a “lock-in” letter to Gardner, instructing Gardner to withhold income taxes from Mr. Landess’s paychecks as if he was a single man filing with no exemptions from withholding. On the same day, the IRS sent a letter to Mr. Landess informing him of the instructions it had just given Gardner, and explaining how he could challenge the IRS’s withholding determination.1 The letter also informed *173Mr. Landess that 26 U.S.C. § 6682 allows the imposition of a $500 penalty on anyone who gives false information with respect to withholding, and stated that the IRS would “charge you the $500 penalty unless you provide a reasonable basis for the statements on your Form W-4.” R. Vol. 1.
Gardner followed the IRS’s instructions and in 2005 it withheld $23,746 from Mr. Landess’s wages of $97,168. On February 28, 2005, the IRS assessed a $500 penalty against Mr. Landess for providing false information regarding his withholding for 2004.
In May 2005, Mr. Landess sued Gardner in New Mexico state court for debt, money due and conversion. The New Mexico trial court dismissed Mr. Landess’s suit pursuant to 26 U.S.C. § 3403, which provides that the employer is not liable to an employee for withheld taxes, and it sanctioned Mr. Landess for bringing a frivolous action. The New Mexico Court of Appeals affirmed, and it sanctioned Mr. Landess for filing a frivolous appeal.
On January 29, 2007, the IRS sent Mr. Landess a final notice of intent to levy, which also informed Mr. Landess of his right to seek a collection due process (“CDP”) hearing before the IRS Office of Appeals regarding the 2000 through 2003 deficiencies, as well as the $500 penalty for false withholding of information. On February 1, 2007, the IRS filed a notice of federal tax lien against Mr. Landess for the same liabilities. On February 8, 2007, the fifth business day after the filing of the lien, the IRS timely sent Mr. Landess notice of the hen filing and of his right to a CDP hearing regarding it.
On February 23, the Appeals Office received a request from Mr. Landess for a CDP hearing regarding the proposed levy. Mr. Landess requested a face-to-face conference in the IRS office nearest to his residence. He indicated he wanted to verify that the IRS had followed all legally required procedures and, further, he wanted to challenge the underlying liabilities and find out what collection alternatives were available to him if it turned out that the assessed liabilities were correct. On March 8, the IRS received from Mr. Lan-dess a timely request that a CDP hearing regarding the lien filing be combined with the already-requested hearing regarding the levy.
Upon receipt of Mr. Landess’s requests, the IRS Appeals Office sent to him a letter describing the CDP process. The letter informed Mr. Landess that the Appeals Office would not consider certain collection alternatives, unless he had filed all required tax returns, was current on his estimated tax payments, and had provided a completed collection information statement. In response, Mr. Landess sought a face-to-face conference, claiming that he had not yet received a notice informing him of the underlying liabilities and allowing him to dispute that. Further, he demanded substantiation of the assessments against him.
The Appeals Office then scheduled a CDP conference for 11:00 a.m. on July 17, 2007, in Albuquerque, giving Mr. Landess the option of either a face-to-face or telephone conference. The scheduling letter informed Mr. Landess that he could not dispute his income tax and related liabilities because he had received a notice of deficiency. See 26 U.S.C. § 6330(c)(2)(B). In response, Mr. Landess requested that the conference be moved closer to his residence or that the IRS pay his travel expenses to the conference. Mr. Landess continued to claim that he had not yet had the opportunity to dispute the liabilities *174and to demand that the IRS provide evidence supporting its claims. As it turned out, Mr. Landess failed to attend the conference either in person or by phone, and he did not respond to a follow-up letter giving him time to make additional written submissions. The Appeals Office accordingly closed Mr. Landess’s case.
On August 9, 2007, the Appeals Office sent Mr. Landess two notices of determination, one upholding the filing of the tax lien and the other upholding the proposed levy. The notices informed Mr. Landess that he was not entitled to a collection alternative because he had not satisfied the filing, payment and informational requirements therefor. The notices confirmed that a review of the best information available, including IRS computer records, indicated that all legal requirements had been met and all administrative procedures had been followed. The notices further stated that a computer printout of Mr. Landess’s transcript had been provided to him and that the Appeals Office had ordered certified transcripts and would forward them to Mr. Landess upon receipt. The notices explained that Mr. Landess had never provided the requested documents, had not attended the scheduled conference, and had not responded to the post-conference, follow-up letter. The notices stated that, because Mr. Landess had not pursued his CDP rights, the Appeals Office had determined that the lien filing and the proposed levy had properly balanced the need for efficient tax collection with Mr. Landess’s legitimate concern that collection be no more intrusive than necessary.
Under 26 U.S.C. § 6380(d)(1), Mr. Lan-dess had thirty days (until September 8, 2007) to file a petition in the United States Tax Court. Mr. Landess timely filed on Monday, September 10, 2007.2 In his petition to the Tax Court, Mr. Landess included some criticisms of the CDP hearing process, but he did not raise any substantive issues regarding his tax liabilities.
The Commissioner moved for partial summary judgment on the issue of whether Mr. Landess had any right in the CDP hearing to challenge the income tax and penalty assessments for 2000 through 2003, or to obtain from the IRS documents supporting his position on those liabilities. The Commissioner argued that 26 U.S.C. § 6330(c)(2)(B) prevented Mr. Landess from challenging the existence or amount of those underlying liabilities because the Commissioner had mailed a notice of deficiency to Mr. Landess’s last known address. The Commissioner opined that the IRS was not required to give taxpayers “verification” documents, but that the Appeals Office had, nonetheless, given Mr. Landess transcripts of his account. The Commissioner further observed that Mr. Landess had failed to satisfy the requirements for a collection alternative, and that he did not contest a taxpayer’s right to challenge his liability for the 26 U.S.C. § 6682 penalty for providing false and withholding information.
The Tax Court examined the Commissioner’s motion and concluded that summary judgment appeared appropriate. The court ordered the Commissioner to file a supplemental brief explaining why summary judgment was appropriate on all issues, and it ordered Mr. Landess to file a response to the supplemented motion.
In his supplement, the Commissioner stated that he had obtained additional documents regarding the 26 U.S.C. § 6682 penalty and that he had concluded that Mr. Landess could not challenge the penalty because he already had an opportunity *175to do so. The Commissioner defended the imposition of the penalty, stated that Mr. Landess’s failure to participate in the administrative CDP hearing precluded him from challenging in court either the assessments or the proposed collection activities, and explained why Mr. Landess was not entitled to CDP relief.
In his three responses to the Commissioner’s supplemented motion, Mr. Lan-dess primarily contended that the Tax Court should conduct an appeal, under an abuse-of-discretion standard, and limited to the record established during the administrative CDP hearing. Mr. Landess also argued that the Appeals Office should have provided him with substantiation for the assessments at issue and should have allowed him to challenge those underlying liabilities because he claimed that he did not receive notice of any deficiency.
The Tax Court held a hearing on the Commissioner’s motion, which Mr. Lan-dess did not attend. Instead, he relied upon his written submissions.
The Tax Court rendered an opinion from the bench granting summary judgment to the defendants upholding the collection actions. The court found that the Commissioner had issued a notice of deficiency to Mr. Landess and that Mr. Landess could not challenge its existence or amount. The court reviewed the administrative record and determined that the Appeals Office had not abused its discretion when it upheld the filing of the tax lien and proposed levy. The court also noted that the Appeals Office had informed Mr. Landess of his rights and had used transcripts to confirm the propriety of the assessments and the timely sending of appropriate notices. The court further found Mr. Lan-dess had neither raised relevant issues nor complied with the requirements for a collection alternative, and it stated that the Appeals Office had properly balanced efficiency with intrusiveness. The court concluded that Mr. Landess had instituted this case to protest the tax system, and it warned him that he could be sanctioned up to $25,000 under 26 U.S.C. § 6673 if he advanced similar arguments in the future.
Accordingly, the tax court entered an order and decision granting summary judgment to the Commissioner, and stating that the IRS could proceed with the collection actions at issue. Mr. Landess moved to vacate, repeating many arguments made unsuccessfully before. The court denied Mr. Landess’s motion and this appeal followed.
Mr. Landess frames the issues on appeal as follows:
1. Did Tax Court err in applying the wrong standard of review and conducting a trial de novo, rather [than] the judicial review of the administrative record?
2. Did Tax Court err in granting the Supplement to Respondent’s Motion for Partial Summary Judgment?
Appellant’s Op. Br. at 1-2.
DISCUSSION
We have carefully reviewed the entire record in this case, including all of Mr. Landess’s pleadings and submissions. We cannot improve on the thorough decision rendered by the Tax Court in its ruling from the bench on February 9, 2009. Accordingly, for substantially the reasons stated in that decision, we affirm the Tax Court’s grant of summary judgment to the Commissioner.
Furthermore, as did the Tax Court, we find Mr. Landess’s arguments to be frivolous. We caution Mr. Landess that he may be subject to sanctions if he files further specious appeals relating to his taxes, penalties or interest for the years addressed herein.
*176CONCLUSION
We AFFIRM the decision of the Tax Court.
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 val*172ue consistent with Fed. R.App. P. 32.1 and 10th Cir. R. 32.1.
. The 'lock-in” letter is the subject of the other appeal Mr. Landess has before this court. See Landess v. Commissioner, No. 09-*1739001, 354 Fed.Appx. 338 (10th Cir. Nov. 2009).
. September 8, 2007, was a Saturday.
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ORDER*
MONROE G. McKAY, Circuit Judge.
Petitioner, a pro se state prisoner, seeks a certificate of appealability to appeal the denial of his 28 U.S.C. § 2254 habeas petition.1 Petitioner was sentenced to serve thirty years in state prison and one year in county jail, running concurrently, following his convictions for assault and battery with a dangerous weapon and domestic abuse. The Oklahoma Court of Criminal Appeals (“OCCA”) affirmed Petitioner’s convictions on direct appeal. In his § 2254 petition, Petitioner raised the same issues he raised in his direct appeal; namely, that (1) there was insufficient evidence to sustain his conviction for assault with a dangerous weapon, (2) defective jury instructions and a confusing verdict form violated his due process rights, (3) his defense was prejudiced by the trial court’s failure to renumber the counts following the dismissal of count two, and his defense counsel was ineffective in failing to object to the numbering, (4) his trial counsel was ineffective in asking Petitioner on direct examination about a prior conviction that was allegedly unavailable for impeachment purposes, and (5) various trial errors taken together with defective representation merited a reduction in his sentence.
The case was referred to a magistrate judge, who issued a report and recommendation stating Petitioner’s petition for ha-beas corpus should be denied. Specifically, the magistrate judge found, under the appropriate standard of review, there was sufficient evidence to support Petitioner’s conviction, the jury instructions and forms did not violate constitutional due process requirements, and Petitioner failed “to show the trial court’s failure to renumber the counts on the verdict forms violated his federal constitutional rights,” (Doc. 21 at 15). Additionally, the magistrate judge found that Petitioner’s claims of ineffective assistance of counsel failed to meet the Strickland standard. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. *1772052, 80 L.Ed.2d 674 (1984). Finally, the magistrate judge recommended dismissal of Petitioner’s claim for cumulative error because there were no actual errors that would merit habeas relief. See Le v. Mul-lin, 311 F.3d 1002, 1023 (10th Cir.2002). After considering Petitioner’s timely-filed objections, the district court adopted the magistrate judge’s report and recommendation and dismissed the case. Petitioner now seeks to challenge the district court’s dismissal of his claims.
After reviewing Petitioner’s filings, the magistrate judge’s report and recommendation, the district court’s order, and the record, we conclude that reasonable jurists would not debate whether “the petition should have been resolved in a different manner.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). Therefore, for substantially the reasons set forth in the magistrate judge’s thorough and well-reasoned recommendation, we DENY Petitioner’s request for a certificate of appealability and DISMISS the appeals.
This order 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.
. Petitioner filed notices of appeal both from the district court's final order on the merits and from that court's order denying a certificate of appealability. We have consolidated both appeals for procedural purposes.
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PER CURIAM:
James Wesley Smith III, appointed counsel for Larry Brannic, has filed a motion to withdraw on appeal pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Because independent examination of the entire record reveals no arguable issues of merit, counsel’s motion to withdraw is GRANTED, and the district court’s denial *237of Brannic’s 18 U.S.C. § 3582(c)(2) motion is AFFIRMED.
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ON MOTION
ORDER
Louis J. De Maio moves for reconsideration of the court’s July 31, 2006, 192 Fed.Appx. 960, order dismissing his petition for review for failure to pay the filing fee. The Office of Personnel Management (OPM) has not responded.
De Maio’s petition for review was docketed on June 30, 2006. Because the filing fee was not paid to the court, the petition was dismissed on July 31, 2006.
De Maio submitted correspondence in February and March 2009 stating that OPM had never filed a brief and asking that the court rule in his favor. The clerk rejected his submissions because his case was no longer pending in this court. On April 10, 2009, De Maio moved to reinstate his petition.
In his motion to reinstate, De Maio states that he filed a submission entitled “Motion to Rescind Order Dismissing Petition For Review” on August 2, 2006. De Maio further states that he paid the filing fee and submits a cancelled check. The check submitted by De Maio was submitted to, and cashed by, the United States Court of Federal Claims in May 2006.
The clerk’s file shows no record of any submission from De Maio in August 2006, and De Maio does not explain why for over two and a half years he made no inquiry concerning when his case might be reinstated or why OPM had not filed a brief. Nevertheless, the court determines that because De Maio did pay the filing fee before this case was dismissed for failure to pay the fee, albeit to the wrong court, reinstatement is warranted.
*287Accordingly,
IT IS ORDERED THAT:
(1) The motion is granted, the July 31, 2006 dismissal order is vacated, and the mandate is recalled.
(2) OPM should calculate the due date for its brief from the date of filing of this order.
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*309
SUMMARY ORDER
Petitioners Hong Yu (“Yu”) and his son Tianyi Yu,3 natives and citizens of the People’s Republic of China, seek review of the April 18, 2007 orders of the BIA affirming the August 31, 2004 decision of Immigration Judge (“IJ”) Robert D. Weisel, denying Hong Yu’s application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”) and Tianyi Yu’s request for derivative relief based on his father’s application. In re Hong Yu, No. A076 106 062 (B.I.A. Apr. 18, 2007), and In re Yianyi Yu, No. A076 106 063 (B.I.A. Apr. 18, 2007), aff'g Nos. A076 106 062 and A076 106 063 (Immig. Ct. N.Y. City Aug. 31, 2004). We assume the parties’ familiarity with the underlying facts and procedural history of the case.
When, as here, the BIA affirms the IJ’s decision in every respect but one, “we review the judgment of the IJ as modified by the BIA’s decision.” Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir.2005). We review the agency’s factual findings, including adverse credibility determinations, under the substantial evidence standard. 8 U.S.C. § 1252(b)(4)(B); see also Corovic v. Mukasey, 519 F.3d 90, 95 (2d Cir.2008). We review de novo questions of law and the application of law to undisputed fact. Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.2008).
Asylum and Withholding of Removal— National Security Bar
An alien is ineligible for asylum if “there are reasonable grounds for regarding the alien as a danger to the security of the United States.” See 8 U.S.C. § 1158(b)(2)(A)(iv); 8 C.F.R. § 208.13(c)(1). Similarly, an alien is ineligible for withholding of removal if “there are reasonable grounds to believe that the alien is a danger to the security of the United States.” See 8 U.S.C. § 1231(b)(3)(B)(iv); 8 C.F.R. § 1208.16(d)(2). In addressing the phrase “reasonable grounds for regarding the alien as a danger to the security of the United States” as used in former § 243(h)(2)(D) of the Immigration and Nationality Act (“INA”), the Attorney General has found that the bar applies “if there is information that would permit a reasonable person to believe that the alien may pose a danger to the national security.” Matter of A-H-, 23 I. & N. Dec. 774, 789 (A.G.2005) (emphasis added). The Attorney General concluded that this standard was “substantially less stringent than preponderance of evidence.” Id. at 789. Yu’s challenges to the BIA’s reliance on this interpretation are unavailing.
Yu challenges the Attorney General’s “reasonable person” standard in Matter of A-H-, but he has failed to establish that the standard is unreasonable or contrary to clear congressional intent. See Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843-44, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). The Attorney General interprets the phrase “is a danger to the security of the United States” to mean that the agency need only determine that the applicant “may pose a risk to national security.” Matter of AH- 23 I. & N. Dec. at 789 (emphasis added). We need not decide whether this interpretation is consistent -with the plain meaning of the statutory text because the BIA found reasonable grounds “to believe that [Yu] is a danger.” In re Hong Yu, No. A076 106 062 (B.I.A. Apr. 18, 2007) (emphasis added).
*310Remand is nevertheless warranted in light of certain evidentiary errors. Specifically, the IJ found that Yu’s “deception [put] his veracity, as well as his loyalties, clearly at issue.” This finding was based on: [i] evidentiary inconsistencies relating to Yu’s financial assets, and [ii] the negative results of a polygraph test. But at the hearing the IJ repeatedly indicated that he found neither circumstance germane, and he explicitly refused to allow Yu to present pertinent evidence to clarify, rebut or explain. An IJ may not rely on evidence he has excluded. See Corovic, 519 F.3d at 96.
We therefore vacate the BIA’s decision and remand to the agency for reconsideration. On remand, the agency must determine whether application of the national security bar remains appropriate in the absence of the flawed loyalty finding. And because the BIA relied on that finding to reverse the IJ’s grant of CAT relief, we remand for reconsideration of the CAT issue as well.
Tianyi Yu
Tianyi Yu’s proceedings are remanded to the extent that he is claiming status as a derivative applicant on Yu’s application. On remand, however, the agency need not review Tianyi Yu’s request for CAT relief, which has been waived. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 546 n. 7 (2d Cir.2005) (issues not sufficiently argued in the briefs are considered waived and ordinarily will not be addressed on appeal). Moreover, although Tianyi Yu argues that remand is warranted because the agency failed to consider his independent CAT claim, there is no indication in the record that he raised such a claim before the IJ. See 8 U.S.C. § 1252(d)(1); Karaj v. Gonzales, 462 F.3d 113, 120 (2d Cir.2006) (holding that we lacks jurisdiction to consider claims that a petitioner fails to explain to the BIA). Accordingly, remand is not required on Tianyi Yu’s CAT claim.
For the foregoing reasons, the petition for review is GRANTED, in part, and DENIED, in part. The case is hereby REMANDED to the BIA for further consideration of the issues set forth in this order. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second 10 Circuit Local Rule 34(b).
. Because Tianyi Yu applied for relief only as a derivative of his father’s application, this order addresses the arguments as raised by Yu, except with respect to Tianyi Yu’s independent claim for relief under the Convention Against Torture.
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SUMMARY ORDER
Plaintiff-appellant Elizabeth Alers (“plaintiff’) appeals from a judgment of the District Court granting summary judgment to the defendant-appellee Human Resources Administration of the City of New York (“defendant”). Plaintiff asserted claims for violations of the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12101 et seq., against defendant for allegedly (1) failing to accommodate her disability, (2) transferring her to a less desirable position, and (3) retaliating against her for pursuing a workers’ compensation claim. On appeal, plaintiff argues that the District Court failed adequately to consider the evidence she presented in opposition to the defendant’s motion for summary judgment. We assume the parties’ familiarity with the remaining factual and procedural history of the case.
We agree with the analysis set forth in Judge Townes’s thorough and careful Memorandum and Order entered September 24, 2008, and we affirm the judgment *331of the District Court substantially for the reasons stated therein. See Alers v. N.Y. City Human Res. Admin., No. 06-CV6131, 2008 WL 4415246 (E.D.N.Y. Sept. 24, 2008).
CONCLUSION
We have considered all of plaintiffs arguments and find them to be without merit. Accordingly, the judgment of the District Court is AFFIRMED.
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Kareem A. Kirk appeals the district court’s order dismissing his 42 U.S.C. § 1988 (2006) complaint. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Kirk v. Curran, No. 3:09-cv-00301-GCM, 2009 WL 2423971 (W.D.N.C. Aug. 4, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.
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*309
SUMMARY ORDER
Petitioners Hong Yu (“Yu”) and his son Tianyi Yu,3 natives and citizens of the People’s Republic of China, seek review of the April 18, 2007 orders of the BIA affirming the August 31, 2004 decision of Immigration Judge (“IJ”) Robert D. Weisel, denying Hong Yu’s application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”) and Tianyi Yu’s request for derivative relief based on his father’s application. In re Hong Yu, No. A076 106 062 (B.I.A. Apr. 18, 2007), and In re Yianyi Yu, No. A076 106 063 (B.I.A. Apr. 18, 2007), aff'g Nos. A076 106 062 and A076 106 063 (Immig. Ct. N.Y. City Aug. 31, 2004). We assume the parties’ familiarity with the underlying facts and procedural history of the case.
When, as here, the BIA affirms the IJ’s decision in every respect but one, “we review the judgment of the IJ as modified by the BIA’s decision.” Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir.2005). We review the agency’s factual findings, including adverse credibility determinations, under the substantial evidence standard. 8 U.S.C. § 1252(b)(4)(B); see also Corovic v. Mukasey, 519 F.3d 90, 95 (2d Cir.2008). We review de novo questions of law and the application of law to undisputed fact. Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.2008).
Asylum and Withholding of Removal— National Security Bar
An alien is ineligible for asylum if “there are reasonable grounds for regarding the alien as a danger to the security of the United States.” See 8 U.S.C. § 1158(b)(2)(A)(iv); 8 C.F.R. § 208.13(c)(1). Similarly, an alien is ineligible for withholding of removal if “there are reasonable grounds to believe that the alien is a danger to the security of the United States.” See 8 U.S.C. § 1231(b)(3)(B)(iv); 8 C.F.R. § 1208.16(d)(2). In addressing the phrase “reasonable grounds for regarding the alien as a danger to the security of the United States” as used in former § 243(h)(2)(D) of the Immigration and Nationality Act (“INA”), the Attorney General has found that the bar applies “if there is information that would permit a reasonable person to believe that the alien may pose a danger to the national security.” Matter of A-H-, 23 I. & N. Dec. 774, 789 (A.G.2005) (emphasis added). The Attorney General concluded that this standard was “substantially less stringent than preponderance of evidence.” Id. at 789. Yu’s challenges to the BIA’s reliance on this interpretation are unavailing.
Yu challenges the Attorney General’s “reasonable person” standard in Matter of A-H-, but he has failed to establish that the standard is unreasonable or contrary to clear congressional intent. See Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843-44, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). The Attorney General interprets the phrase “is a danger to the security of the United States” to mean that the agency need only determine that the applicant “may pose a risk to national security.” Matter of AH- 23 I. & N. Dec. at 789 (emphasis added). We need not decide whether this interpretation is consistent -with the plain meaning of the statutory text because the BIA found reasonable grounds “to believe that [Yu] is a danger.” In re Hong Yu, No. A076 106 062 (B.I.A. Apr. 18, 2007) (emphasis added).
*310Remand is nevertheless warranted in light of certain evidentiary errors. Specifically, the IJ found that Yu’s “deception [put] his veracity, as well as his loyalties, clearly at issue.” This finding was based on: [i] evidentiary inconsistencies relating to Yu’s financial assets, and [ii] the negative results of a polygraph test. But at the hearing the IJ repeatedly indicated that he found neither circumstance germane, and he explicitly refused to allow Yu to present pertinent evidence to clarify, rebut or explain. An IJ may not rely on evidence he has excluded. See Corovic, 519 F.3d at 96.
We therefore vacate the BIA’s decision and remand to the agency for reconsideration. On remand, the agency must determine whether application of the national security bar remains appropriate in the absence of the flawed loyalty finding. And because the BIA relied on that finding to reverse the IJ’s grant of CAT relief, we remand for reconsideration of the CAT issue as well.
Tianyi Yu
Tianyi Yu’s proceedings are remanded to the extent that he is claiming status as a derivative applicant on Yu’s application. On remand, however, the agency need not review Tianyi Yu’s request for CAT relief, which has been waived. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 546 n. 7 (2d Cir.2005) (issues not sufficiently argued in the briefs are considered waived and ordinarily will not be addressed on appeal). Moreover, although Tianyi Yu argues that remand is warranted because the agency failed to consider his independent CAT claim, there is no indication in the record that he raised such a claim before the IJ. See 8 U.S.C. § 1252(d)(1); Karaj v. Gonzales, 462 F.3d 113, 120 (2d Cir.2006) (holding that we lacks jurisdiction to consider claims that a petitioner fails to explain to the BIA). Accordingly, remand is not required on Tianyi Yu’s CAT claim.
For the foregoing reasons, the petition for review is GRANTED, in part, and DENIED, in part. The case is hereby REMANDED to the BIA for further consideration of the issues set forth in this order. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second 10 Circuit Local Rule 34(b).
. Because Tianyi Yu applied for relief only as a derivative of his father’s application, this order addresses the arguments as raised by Yu, except with respect to Tianyi Yu’s independent claim for relief under the Convention Against Torture.
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SUMMARY ORDER
Gerald Driffin and DePaul Crudup appeal from the District Court’s orders entered on November 25, 2008, and November 19, 2008, respectively, denying their motions for reduction of their sentences pursuant to 18 U.S.C. § 3582(c). They seek the benefit of the Sentencing Commission’s amendment 706, effective November 1, 2007, applicable retroactively pursuant to Amendment 713, effective March 3, 2008. Amendment 706 reduced the base offense level for most crack offenses.
We assume the parties’ familiarity with the facts and procedural aspects of these cases.
Driffin and Crudup were both sentenced as career offenders pursuant to the career offender guidelines. See U.S.S.G. § 4B1.1. We have previously ruled that defendants sentenced as career offenders are not eligi*359ble for consideration pursuant to section 3582(c) because their sentences were not based on a guideline that was subsequently-lowered by the Sentencing Commission. See United States v. Martinez, 572 F.3d 82 (2d Cir.2009). The appellants’ attempts to distinguish their cases from Martinez are without merit.
We affirm in both cases.
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OPINION
PER CURIAM.
Hozay Royal appeals from an order of the United States District Court for the District of New Jersey, which denied his petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241, and the order denying his motion to alter or amend the judgment of dismissal pursuant to Fed.R.Civ.P. 59(e). Because the appeal raises no substantial question, we will affirm the District Court’s orders.
Hozay Royal pleaded guilty, in the Eastern District of Pennsylvania, to use of an unauthorized access device with intent to defraud and was sentenced to a forty-one month term of imprisonment. Royal filed a direct appeal, which was dismissed because he had waived his appellate rights in the plea agreement. He then filed a pro se motion to correct his sentence, which was denied,1 and a motion to alter or amend the denial of that motion, which also was denied.2
Royal is now confined at the Federal Correctional Institution at Fort Dix. He filed this petition pursuant to 28 U.S.C. § 2241, in the district of his confinement, challenging the length of his sentence *403based on our decision in United States v. Kennedy, 554 F.3d 415 (3d Cir.2009). The District Court dismissed his petition after concluding that relief was not available under § 2241. Royal then filed a motion to alter or amend the judgment of dismissal pursuant to Fed.R.Civ.P. 59(e). The District Court denied his motion, and Royal timely appealed.
Royal claims that a remedy under 28 U.S.C. § 2255 is ineffective or inadequate because Kennedy was decided after the one-year statute of limitations for filing a § 2255 motion had already run, therefore making him unable to raise this claim in a § 2255 petition. A motion to vacate a sentence pursuant to 28 U.S.C. § 2255 is the presumptive means to collaterally challenge a federal conviction or sentence. Under the explicit terms of 28 U.S.C. § 2255, a habeas corpus petition cannot be entertained by a court unless a section 2255 motion would be “inadequate or ineffective.” See Application of Galante, 437 F.2d 1164, 1165 (3d Cir.1971). The District Court correctly held that Royal’s challenge to his sentence is within the scope of claims cognizable under § 2255, and thus he may not seek relief via a petition for a writ of habeas corpus under 28 U.S.C. § 2241.3 That Kennedy was decided after the time in which Royal could have filed a § 2255 motion does not render § 2255 inadequate or ineffective so that he may resort to habeas corpus relief under § 2241. Cradle v. United States ex rel. Miner, 290 F.3d 536, 538-39 (3d Cir. 2002). “It is the efficacy of the remedy, not the personal inability to use it, that is determinative.” Id. (citing Garris v. Lindsay, 794 F.2d 722, 727 (D.C.Cir.1986)).
For the foregoing reasons, we will summarily affirm the order of the District Court, dismissing Royal’s federal habeas corpus petition for lack of jurisdiction.
. The District Court construed the motion as one filed under Rule 35 of the Federal Rules of Criminal Procedure.
. Royal's appeal from those orders is docketed at C.A. No. 09-3466.
. In the rare case that § 2255 is “inadequate or ineffective” because some limitation of scope or procedure would prevent a § 2255 proceeding from affording a full hearing and adjudication of a claim, a federal prisoner may seek relief via 28 U.S.C. § 2241. Cradle v. United States ex rel. Miner, 290 F.3d 536, 538 (3d Cir.2002) (per curiam). See also In re Dorsainvil, 119 F.3d 245 (3d Cir.1997). As explained in the District Court opinion, this is not the case here. See Dist. Court. Op., 7-9.
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*404OPINION
PER CURIAM.
Arthur D’Amario, III, appeals from the District Court’s denial of his motion to quash a subpoena. For the following reasons, we will summarily affirm. See 3rd Cir. LAR 27.4 and IOP 10.6.
In December 2001, a federal jury convicted Arthur D’Amario of threatening a United States District Judge in violation of 18 U.S.C. § 115(a)(1)(B). See United States v. D’Amario, 350 F.3d 348 (3d Cir.2003) (vacating and remanding for sentencing). Eight years after his conviction, D’Amario has filed a motion to quash the subpoena compelling the testimony from his attorney, Ed Roy, before the grand jury in May 2001. Apparently, D’Amario believes that Roy’s testimony violated the attorney-client privilege. The District Court denied the motion, and D’Amario filed a timely notice of appeal from that order.
We have jurisdiction pursuant to 28 U.S.C. § 1291. “We review the decision to quash a grand jury subpoena for abuse of discretion.” Impounded, 241 F.3d 308, 312 (3d Cir.2001). We summarily affirm an order of the district court “when ‘no substantial question’ is presented by the appeal.” United States v. Baptiste, 223 F.3d 188, 190 n. 3 (3d Cir.2000) (per cu-riam) (citation omitted).
Pursuant to a promptly made motion, a district court may quash or modify a subpoena if compliance with it would be unreasonable or oppressive. See Fed. R.Crim.P. 17(c)(2). Here, we agree with the District Court that a motion to quash filed eight years after the grand jury handed down the indictment is not promptly made. See, e.g., United States v. Kleen Laundry & Cleaners, Inc., 381 F.Supp. 519, 523 (E.D.N.Y.1974) (motion to quash subpoena must be made when the abuse becomes apparent, not after the indictment is handed down and long after any possibly abusive conduct has ceased). Therefore, the District Court did not abuse its discretion in denying the motion.
Because D’Amario’s appeal presents us with no substantial question, we will summarily affirm the District Court’s order. See 3rd Cir. LAR 27.4 and IOP 10.6.
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*405OPINION OF THE COURT
NYGAARD, Circuit Judge.
The Government filed a one-count criminal information against Appellant, Elvis Rivera, charging him with possession with intent to distribute more than five grams of crack cocaine, a violation of 21 U.S.C. §§ 841(a)(1) and (b)(l)(B)(iii). After his initial trial ended in mistrial, Rivera was tried a second time and found guilty. The District Court sentenced him to ten years’ imprisonment. Rivera appeals, challenging the sufficiency of the evidence. We apply a deferential standard of review when deciding whether a jury’s verdict rests on sufficient evidence. We will affirm here because, after reviewing the evidence in a light most favorable to the Government, we conclude that any rational trier of fact could have found the essential elements of the crime charged beyond a reasonable doubt. See United States v. Diallo, 575 F.3d 252, 256 (3d Cir.2009).
Rivera was arrested after selling crack cocaine to an undercover United States Drug Enforcement Administration (DEA) agent in St. Croix. As he did before the District Court, Rivera maintains on appeal that the crack cocaine that he sold to the undercover agent was different from the cocaine admitted at trial as a Government exhibit. Interestingly, he does not contest the fact that he sold crack cocaine to the undercover agent, only that the evidence produced at trial was not the same cocaine he sold to the DEA officer. He argues that after the agent turned the crack cocaine over to the drug custodian, it was somehow mingled with other drugs the agent had purchased.
At Rivera’s trial, the undercover agent testified that, after buying crack cocaine from Rivera, he properly secured the drugs and turned them over to the DEA officer in charge of drug custody. The Government also presented testimony that the appropriate procedures and processes were followed in securing this evidence. Further, a DEA chemist testified that the drugs were properly analyzed. The DEA chemist also identified these drugs in court and indicated that they were appropriately sealed and in an untampered condition. Viewing the evidence in a light most favorable to the Government, we will affirm Rivera’s conviction. Neither testimony nor physical evidence suggested any deficiencies in the chain of custody or handling of the drug evidence; rather, there was testimony regarding the appropriate handling of the physical evidence. Accordingly, a rational trier of fact could have found the evidence sufficient to convict Rivera.
We find ample reason why the jury could conclude that the drugs introduced into evidence were indeed the same ones that Rivera sold to the undercover agent. We will affirm Rivera’s conviction.
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*405OPINION OF THE COURT
NYGAARD, Circuit Judge.
The Government filed a one-count criminal information against Appellant, Elvis Rivera, charging him with possession with intent to distribute more than five grams of crack cocaine, a violation of 21 U.S.C. §§ 841(a)(1) and (b)(l)(B)(iii). After his initial trial ended in mistrial, Rivera was tried a second time and found guilty. The District Court sentenced him to ten years’ imprisonment. Rivera appeals, challenging the sufficiency of the evidence. We apply a deferential standard of review when deciding whether a jury’s verdict rests on sufficient evidence. We will affirm here because, after reviewing the evidence in a light most favorable to the Government, we conclude that any rational trier of fact could have found the essential elements of the crime charged beyond a reasonable doubt. See United States v. Diallo, 575 F.3d 252, 256 (3d Cir.2009).
Rivera was arrested after selling crack cocaine to an undercover United States Drug Enforcement Administration (DEA) agent in St. Croix. As he did before the District Court, Rivera maintains on appeal that the crack cocaine that he sold to the undercover agent was different from the cocaine admitted at trial as a Government exhibit. Interestingly, he does not contest the fact that he sold crack cocaine to the undercover agent, only that the evidence produced at trial was not the same cocaine he sold to the DEA officer. He argues that after the agent turned the crack cocaine over to the drug custodian, it was somehow mingled with other drugs the agent had purchased.
At Rivera’s trial, the undercover agent testified that, after buying crack cocaine from Rivera, he properly secured the drugs and turned them over to the DEA officer in charge of drug custody. The Government also presented testimony that the appropriate procedures and processes were followed in securing this evidence. Further, a DEA chemist testified that the drugs were properly analyzed. The DEA chemist also identified these drugs in court and indicated that they were appropriately sealed and in an untampered condition. Viewing the evidence in a light most favorable to the Government, we will affirm Rivera’s conviction. Neither testimony nor physical evidence suggested any deficiencies in the chain of custody or handling of the drug evidence; rather, there was testimony regarding the appropriate handling of the physical evidence. Accordingly, a rational trier of fact could have found the evidence sufficient to convict Rivera.
We find ample reason why the jury could conclude that the drugs introduced into evidence were indeed the same ones that Rivera sold to the undercover agent. We will affirm Rivera’s conviction.
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OPINION OF THE COURT
JORDAN, Circuit Judge.
We have jurisdiction to review a summary judgment order denying qualified immunity “only to the extent that it turns on an issue of law.” Ziccardi v. City of Philo., 288 F.3d 57, 61 (3d Cir.2002) (quoting Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985)). In this case, the accounts of the incident underlying the claim of excessive force and the competing assertion of qualified immunity raise material issues of fact. As explained by the District Court:
We have an alleged eyewitness ... [a]nd he testified that the plaintiff was — that she was picked up approximately a foot off the ground and violently slammed to the ground. At which time he claimed he audibly heard her ankle bone snap.... In contrast, Officer Findlay testified that he performed a controlled takedown maneuver, which did not involve violently slamming the plaintiff to the ground as she claimed. But involved a twisting procedure whereby the plaintiff was taken down to her stomach.
(App. at A6-A7.) Later the Court stated, “the fundamental flaw in the defendants’ qualified immunity analysis is that [it is] based upon the factual premise or predicate ... that the takedown occurred in a controlled and non-violent manner. That contention, however, ... is hotly disputed by the plaintiff.” (App. at A12-A13.)
Because there is a fundamental factual dispute pertaining to the question of qualified immunity, we lack jurisdiction and, accordingly, will dismiss the appeal.
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OPINION
SLOVITER, Circuit Judge.
Romel Bolger, Latoya Kirkland, and Kenneth Thompson appeal the District Court’s denial of their motion to suppress evidence, including numerous kilos of cocaine, used against them at trial; Bolger and Thompson appeal the sufficiency of the evidence upon which their convictions for possession with intent to distribute cocaine and cocaine base rest; and Bolger appeals the District Court’s enhancement of his Guidelines calculation for possessing a firearm in connection with a drug trafficking offense.
I.
Background
After shots were fired near the intersection of Levick Street and Summerdale Avenue in Philadelphia, police found Bolger on the median of Levick Street, bleeding from the mouth and chest from a gunshot wound. In the nearby driveway of the house at 1053 Levick Street officers found a handgun, shell casings, and two cars with bullet holes, including a blue Ford Expedition with both its front doors open.
Officers Barclay and Erbele interviewed a witness at the scene who, the government asserts, told them that there had been a shoot-out between two groups of men, after which someone involved may have pulled a child from the Expedition and then entered 1053 Levick Street. Those officers also saw lights on in 1053 Levick and heard water running inside. One officer knocked on the door to no response. Erbele and Barclay concluded that someone injured in the shoot-out might be inside and, approximately ten minutes later, Erbele called his supervisor, Lieutenant Mangini of the SWAT team.
Mangini, who arrived about fifteen to twenty minutes later, and Erbele decided that the known facts merited entry into the building and that there was no time to secure a warrant. Within ten to fifteen minutes, the SWAT team was gathered, knocked on the door, announced their intent to check the “well-being” of the inhabitants loud enough that “everybody on [the] block [could] hear,” and received no answer. App. at 202. SWAT knocked again, received no response, and entered the building.
Just inside the door, the officers found a loaded handgun. Deeper inside the house, they discovered two more guns, sixty-one kilograms of cocaine, several bags of crack cocaine, and approximately $176,365. On one desk they found one “unwrapped” and two “wrapped” kilos of cocaine, at least one baggie with crack cocaine, a heat sealer with Thompson’s fingerprints, ziplock bags, a gun placed on top of a newspaper dated November 22, 2006, a notebook that appeared to be a drug ledger, and a scale with Bolger’s and Thompson’s fingerprints.
Investigation revealed that both Thompson and Kirkland resided at 1053 Levick. Bolger, Thompson and Kirkland were indicted for conspiracy to possess with intent to distribute cocaine and cocaine base *409(Count I), and conspiracy and aiding and abetting a conspiracy to maintain a house for the purposes of drug trafficking (Count II); Bolger and Thompson were indicted for possession on or about November 25, 2006 with intent to distribute cocaine (Count III) and crack cocaine (Count IV) and with aiding and abetting those offenses, and with possession, and aiding and abetting possession, of a weapon in furtherance of a drug trafficking crime (Count V); and Thompson was indicted as a convicted felon possessing a firearm (Count VI).
A. The motions to suppress
The defendants all moved to suppress the evidence found in the house, arguing that the warrantless search was prohibited by the Fourth Amendment because it was unreasonable for the police to believe that an injured person might have been inside 1058 Levick. The District Court held an evidentiary hearing at which Barclay testified that a witness, later identified as James Antoine, had told him at the scene that he was standing near the driveway of 1053 Levick when some men walked past, after which he heard shooting and dove under his car; after the shooting stopped, he “saw a male run down the driveway with a gun, [then go] back to a vehicle which was parked in the rear of 1053 Levick, extract a small child, run back down the driveway eastbound and then run back westbound in the driveway ... [and that] he thought he saw the male run into the house.” App. at 169. Erbele testified that a witness he spoke to — also presumably Antoine — said that he saw “a male holding a child, a small child ... running around up by where [Antoine’s] car was ... and ... that he said he thought he saw somebody going into [1053 Levick].” App. at 147.
The District Court denied the motions to suppress, apparently because of the evidence of exigent circumstances. Defendants moved for reconsideration on the basis of a document subsequently produced by the government that contained a summary of an interview of Antoine taken the night of the incident by an Officer Casee which purportedly contradicted the testimony of Barclay and Erbele. The Court held a second hearing at which Antoine was questioned about what he had observed regarding persons entering the Levick Street house. At one point, Antoine stated, “I don’t see nothing [from] where I stand, I can see nobody.” App. at 268. Pressed to clarify whether he told the police that he “saw anybody go to the back door of 1053 Levick Street,” Antoine answered, “I just say I don’t remember the house number, like I say I don’t remember who is in the house.” App. at 269. The Court then asked, “Did you point to the house?”, to which Antoine answered, “Yes, right there I see that in the back but I don’t remember the house.” App. at 269. The prosecution followed up by asking, “When you pointed to the house, you said you saw someone go to that door?”, and Antoine answered, “I don’t see someone go to the door, just argue back right here, the argument right here, that’s all.” App. at 269-70.
Erbele also testified, reiterating his former testimony but clarifying that, after speaking with Antoine the day of the shoot-out, he did not believe that Antoine knew where the man with the child went.
The District Court again denied the motions to suppress and supplemented its fact-findings by stating: “Antoine saw a male with a small child go up the driveway, return to the rear of 1053 Levick Street and then proceed towards Summer-dale Avenue ... Antoine [later] informed a uniformed officer at the scene ... what he had seen and heard.... Antoine, a Haitian, speaks with a heavy accent and is difficult to understand.... Sergeant Bar*410clay understood Antoine to report that a person with a small child may have gone into the property at 1053 Levick Street.... Barclay informed [Officer] Er-bele what he believed Antoine had seen.” Supp.App. at 98.
B. The trial and post-trial
A jury convicted Thompson of Counts I through IV; Bolger was convicted of Counts III and IV; and Kirkland was convicted of Count II. The District Court denied Bolger’s motion for acquittal. At sentencing, the Court enhanced Bolger’s Guidelines calculation by two points under U.S. Sentencing Guidelines § 2Dl.l(b)(l) (2007) for possessing a dangerous weapon in connection with a drug trafficking offense.
II.
Discussion1
A. Suppression
Defendants argue that the evidence should have been suppressed because of the absence of a warrant. Warrantless entry into a home is permitted “to assist persons who are seriously injured or threatened with such injury,” Brigham City v. Stuart, 547 U.S. 398, 403, 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006), but the “government must show a reasonable basis, approximating probable cause, both for the officers’ belief that an emergency exists and for linking the perceived emergency with the area or place into which they propose to intrude,” United States v. Martins, 413 F.3d 139, 147 (1st Cir.2005), cert. denied, 546 U.S. 1011, 126 S.Ct. 644, 163 L.Ed.2d 520 (2005). “We review the denial of a suppression motion for clear error as to the underlying facts, but exercise plenary review as to its legality in light of the district court’s properly found facts.” United States v. Coles, 437 F.3d 361, 365 (3d Cir.2006). “The presence of exigent circumstances is a finding of fact, which we review for clear error.” Id. at 366 (citation omitted).
The reviewing court must make an “objective assessment of an officer’s actions in light of the facts and circumstances then known to him,” Scott v. United States, 436 U.S. 128, 137, 98 S.Ct. 1717, 56 L.Ed.2d 168 (1978), “in light of the totality of the circumstances confronting the officers, including ... a need for an on-the-spot judgment based on incomplete information and sometimes ambiguous facts bearing upon the potential for serious consequences,” Martins, 413 F.3d at 147. The government bears the burden of proving exigency. Parkhurst v. Trapp, 77 F.3d 707, 711 (3d Cir.1996).
Defendants argue that the testimony given by Barclay and Erbele is “outrageously suspect” because it conflicts with Antoine’s testimony and because the officers did not note that “someone went into the house with the child” as part of “their ’49,’ which is their formal Police Report.” Appellants’ Br. at 12-13. Defendants argue further that “even if [Antoine] said that he ‘thought’ [he saw someone go] into the house, ... [that is] still ... not enough to establish probable cause or an exigent circumstance,” because “the man who took the child was in no way tied to the shooting in question,” and there “was nothing ... to indicate that either the man or the child was hurt in any way ... [including] no blood leading in or out of the home ... or other noise that might indicate an emergency....” Appellants’ Br. at 13. The Defendants also assert that there was no “imminence” to whatever danger existed because the police did not “rush[] into the home to save the child *411that they feared might be coming to harm.” Appellants’ Brief at 19.
We reject these arguments. The District Court found that Antoine and Officers Barclay and Erbele were all credible witnesses, and explained that the discrepancies between the officers’ testimony and Antoine’s testimony were due the Officers’ difficulty in understanding Antoine’s Haitian accent. This was not clear error. Both Erbele and Casee testified that they found it difficult to understand Antoine, and a fair reading of his testimony supports the genuineness of those assertions. Adding to the possible confusion, Antoine pointed at 1053 Levick while speaking with Barclay and Erbele.
To be sure, there was some confusion between the officers about what Antoine said, but this is unsurprising considering the interviews were conducted at the scene of a shoot-out. Barclay’s testimony is of debatable relevance given that Erbele spoke with Antoine after Barclay and it was Mangini and Erbele who together made the decision to enter the house, apparently based primarily on the information provided by Erbele. Still, Erbele had the following information: (1) there was a shoot-out; (2) a witness had said that soon after the shooting concluded someone might have entered 1053 Levick, a house adjacent to the scene of the shoot-out; (3) that person may have taken a child from the bullet-ridden Expedition, or may have been involved in the shoot-out, or both; (4) a witness told Erbele that more than one person had exited the Expedition, which had both its front doors open; and (5) there was water running in the house, the lights were on, and no one answered when the police knocked and announced their presence. These facts made the warrant-less search reasonable.
Defendants’ argument about the “49”— which does not appear in the record — is unconvincing. That document apparently reflects a statement by Erbele that a “male had taken a small child from the rear of a 2004 Expedition” and that “the male fled with the small child.” App at 158. That is not inconsistent with Erbele’s belief that the male could have entered 1053 Levick. Moreover, neither Erbele nor Barclay created or reviewed the 49, and both claim that they told whoever wrote that document the same information to which they testified at the suppression hearing.
We also reject Defendants’ argument that there was no exigency because the officers waited for the SWAT team. The time it took to collect information, call SWAT, decide to enter the building, then prepare to do so, was reasonable. It is well recognized that police officers can take “reasonable precautions to reduce the risk of serious injury to themselves or others.... ” Causey v. City of Bay City, 442 F.3d 524, 531 (6th Cir.2006) (quoting United States v. Salava, 978 F.2d 320, 324 (7th Cir.1992)). There was evidence that it was police procedure to wait for the SWAT team to enter a building when an armed person might be inside.
Defendants argue in the alternative that, even if the police were justified in entering the house, they were not justified in going past the entryway because “they could have called out” to see if anyone was hurt and because “there was no blood found; there was no loud noise nor screaming nor anything else that would have indicated that someone needed help.” Appellants’ Br. at 22. Defendants further assert that “the gun [found] on the floor” by the SWAT team “is immaterial” because “it is not against the law to have a gun in the home.” Appellants’ Br. at 22. The presence of the gun, however, increased the possibility that someone connected to the shoot-out was inside and in need of help, and the police had already “called out” *412before they entered the house and received no response. We will not disturb the District Court’s denial of the motion to suppress.
B. Sufficiency of the evidence
In support of their contention that they were entitled to a judgment of acquittal, Bolger and Thompson argue that a reasonable jury could not have found beyond a reasonable doubt that they possessed the drugs recovered from 1053 Levick because “mere proximity to the drug, or mere presence on the property where it is located or mere association with the person who does control the drug or the property, is insufficient to support a finding of possession,” United State v. Brown, 3 F.3d 673, 680 (3d Cir.1993) (citation omitted), and because the government “failed to demonstrate that [they] possessed any of the drugs ... on any date relevant to the prosecution,” Appellants’ Reply Br. at 21 (citing United States v. Hall, 473 F.3d 1295, 1309 (10th Cir.2007) (reversing conviction for possession of crack because “[w]hile [the] evidence [might have been] sufficient to establish that [defendant] possessed crack-cocaine at some time, the indictment charged [defendant] with possession and distribution on or about April 7, 2001 .... [and][n]one of [the] evidence shows that [defendant] possessed or distributed crack-cocaine at that time.”))
There was, however, substantial evidence from which the jury could convict Thompson of constructive possession of cocaine and crack on or about November 25, 2006: Thompson admits, and there was ample evidence from which the jury could infer, that he resided at 1053 Levick Street where large amounts of drugs and drug paraphernalia were found in plain sight; Thompson’s fingerprints were found on the scale and on the heat-sealer, which were next to kilos of cocaine; his fingerprints were also found on a drawer of that desk which contained a bag with a chunky white substance inside; there was evidence that those items had been placed there within a day of the shoot-out, including testimony by Brenda Kirkland, the aunt of Latoya Kirkland, that she had been in the apartment the day before the shoot-out, and had seen Thompson, but that the cocaine, gun, scale, etc., were not on the desk then; there was ample testimony that Thompson was present for the shoot-out and that it was he who retrieved his young son from the Expedition; and there was a “box of money” in the bedroom identified as Thompson’s.
There was also sufficient evidence to convict Bolger of aiding and abetting: four of his fingerprints were found on the recently-placed scale which, again, was next to an open package of drugs, baggies, and a heat sealer; Bolger was shot in the driveway outside 1053 Levick where, again, drugs were set-out in plain sight; three of his fingerprints were found on a glass in the kitchen near pots which seem to have been used in cooking crack cocaine; Bolger does not dispute that his street name was “Big Homie” and the notation “BH” in the notebook cum drug ledger was placed next to the number “1000” and the words “last run”; there were hundreds of phone calls placed between Bolger and Thompson, twelve of which were placed between November 22 and November 24; and there was substantial other evidence connecting Bolger with Thompson and with 1053 Levick. From this evidence, the jury could infer that Bolger had been helping, or was about to help, Thompson package drugs for sale. “Actual or constructive possession need not be shown to justify a conviction for aiding and abetting possession, only ‘some affirmative participation which at least encourages the principal offender to commit the offense.’” United States v. Frorup, *413963 F.2d 41, 43 (3d Cir.1992) (quoting United States v. Raper, 676 F.2d 841, 850 (D.C.Cir.1982)).
C. Bolger’s sentencing enhancement
Bolger argues that the District Court erred in finding that he possessed a Springfield Armory Ultra handgun found in the driveway of 1053 Levick. We disagree. It is undisputed that Bolger was present in that driveway just before the gun was discovered by the police. Also, at Bolger’s sentencing, the government called Agent Monahan who testified that the Springfield was traced to a man named Frost, who had purchased guns for Tull2 who told Monahan that he had supplied a Springfield to Bolger. Tull also told Monahan that he remembered that gun because it had three holes in the trigger and because it was all-metal and was therefore particularly heavy.
This evidence suffices to show that Bol-ger possessed the gun during the Shoot-out in the driveway of 1053 Levick. “[T]his Court ... review[s] factual findings relevant to the Guidelines for clear error and ... exercise[s] plenary review over a district court’s interpretation of the Guidelines.” United States v. Grier, 475 F.3d 556, 570 (3d Cir.2007) (en banc).
A District Court must apply a two-level Guidelines offense level increase if “a dangerous weapon (including a firearm) was possessed” in connection with a drug trafficking offense. U.S.S.G. § 2Dl.l(b)(l) (2007). “The adjustment should be applied if the weapon was present, unless it is clearly improbable that the weapon was connected with the offense.” U.S.S.G. 2D1.1 cmt. n. 3 (2007). There is no such improbability here.
III.
Conclusion
For the above-stated reasons, we will affirm the orders of the District Court.
. The District Court had jurisdiction under 18 U.S.C. § 3231 and this court has jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742.
. Tull had also testified during a hearing at trial that he had sold Bolger guns.
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OPINION OF THE COURT
PER CURIAM.
John Gagliardi, proceeding pro se, appeals the District Court’s partial dismissal of his original complaint and complete dismissal of his amended complaint. For the reasons that follow, we will affirm.
I.
In June 2008, Gagliardi filed a complaint in Pennsylvania state court against Verizon Pennsylvania Inc. (“Verizon”), AT & T Corp. (“AT & T”), Equifax Information Services LLC (“Equifax”), Experian Information Solutions, Inc. (“Experian”), Trans Union, LLC (“Trans Union”), and Allied Interstate, Inc. Gagliardi alleged, inter alia, that Verizon and AT & T had provided inaccurate information about him to Equifax, Experian, and Trans Union in retaliation for his efforts dating back to the 1970s to expose a long-running fraud committed by the “AT & T/Bell system.” The complaint raised a host of state law claims, as well as claims under the Fair Credit Reporting Act (“FCRA”), 15 U.S.C. § 1681 et seq., and Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq.
Shortly after Trans Union removed the case to federal court and answered the complaint, Gagliardi attempted to amend the complaint. That attempt, styled as his “First Amended Complaint,” was unsuccessful because he did not seek leave to amend, as required by Fed.R.Civ.P. 15(a)(2). Later, Verizon and AT & T each filed a motion to dismiss for failure to state a claim. On February 12, 2009, the District Court granted the two motions in part and denied them in part. The court *415held that, “other than his Count for retaliation, [Gagliardi] has failed to allege facts suggestive of conduct proscribed by the asserted causes of action.” (Opinion of Feb. 12, 2009, at 10.) As such, the court dismissed all of the claims against Verizon and AT & T — -with the exception of the retaliation claim — without prejudice. In doing so, the court stated that it would allow Gagliardi “a single opportunity to attempt to replead his [dismissed] claims,” provided he made that attempt within fourteen days. (Id. at 11.)
Less than fourteen days after the court’s order, Gagliardi filed an amended complaint, styled as “Plaintiffs Second Amended Complaint.” This amended complaint named only Verizon and AT & T as defendants — Gagliardi stipulated to the dismissal of the other four defendants— and alleged only one claim: retaliation. As before, both Verizon and AT & T moved to dismiss for failure to state a claim. On April 23, 2009, the District Court granted both motions. Gagliardi now appeals the District Court’s February 12, 2009 and April 23, 2009 orders.1
II.
Gagliardi has failed to present a viable argument in support of this appeal. First, he has waived any challenge to the dismissal of his retaliation claim, as his opening brief did not discuss that claim, instead focusing on the FCRA and civil conspiracy claims from his original complaint.2 See United States v. Pelullo, 399 F.3d 197, 222 (3d Cir.2005). Second, his discussion of his FCRA claim is irrelevant to this appeal, as he never asserted that claim against Verizon or AT & T. Finally, although he did assert his civil conspiracy claim against Verizon and AT & T, he cannot challenge the dismissal of that claim because he neither reasserted it in his amended complaint (despite having an opportunity to do so) nor indicated that he intended to stand on that claim as originally pleaded.3 See United States ex rel. Atkinson v. Pa. Shipbuilding Co., 473 F.3d 506, 516-17 (3d Cir.2007).
In light of the above, we will affirm the District Court’s February 12, 2009 and April 23, 2009 orders. Gagliardi’s requests to conduct discovery and further amend his complaint are denied.
.We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. That Gagliardi’s notice of appeal did not refer to the February 2009 order — he first indicated his intention to appeal that order in his opening brief — does not preclude us from reviewing that order. See Shea v. Smith, 966 F.2d 127, 129 (3d Cir.1992) (stating that “appellate jurisdiction vests over orders not specified in the notice of appeal if there is a connection between the specified and unspecified order[s], the intention to appeal the unspecified order is apparent, the opposing party is not prejudiced and has a full opportunity to brief the issues”).
. Although Gagliardi’s reply brief argues that he preserved his ability to challenge the District Court's dismissal of his retaliation claim, that brief, like his opening brief, does not address the merits of the court’s decision.
. Even if he could raise this issue, it nonetheless lacks merit, as the District Court did not err in dismissing his civil conspiracy claim for failure to state a claim.
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OPINION
SLOVITER, Circuit Judge.
Appellant Dennis Saddler (“Saddler”) appeals from the District Court’s order granting summary judgment for Elliott Company (“Elliott”), his former employer, on his claim for benefits allegedly due under the Employee Retirement Income Security Act of 1974 (“ERISA”) (as amended), 29 U.S.C. § 1132(a)(1)(B). Saddler asserts that he is entitled to severance pay pursuant to the Elliott Company Severance Plan (the “Plan”). We will affirm.1
I.
As the parties submitted a Joint Statement of Facts for purposes of their cross-motions for summary judgment, the relevant facts are not in dispute. Saddler is a participant in the Plan which is administered under ERISA. Saddler worked at Elliott as a project engineer for thirty-two years, the latter part of his tenure in El*417liott’s Plant Air Packaging Group (the “PAP Group”). In early September 2008, Elliott entered into an Asset Purchase Agreement to sell the assets of the PAP Group to another entity, F.S. Elliott Company (“F.S.Elliott”).
Before the sale was complete, Elliott managers held meetings with employees of the PAP group who would be “transferred” to F.S. Elliott to tell them “that they were not being laid off.” App. at 45. Saddler was transferred to F.S. Elliott, where he had the same job responsibilities, and worked for the same or better salary, out of the same building, at the same desk, and with the same telephone number. Five months after the transfer, Saddler resigned from F.S. Elliott.
Then, in September 2006, more than two years after he resigned and nearly three years after the transfer, Saddler sought severance pay from Elliott. Elliott’s written Severance Pay Policy allows payment at Elliott’s discretion to employees who lose their job under three circumstances: (1) a decline in business; (2) plant closing; or (3) a technology improvement. Elliott denied Saddler’s claim for severance pay. Two months later, Saddler appealed Elliott’s denial of his request for severance pay, arguing that his job at Elliott “was eliminated due to the plant closure/sale” to F.S. Elliott. App. at 48. Elliott denied Saddler’s appeal, finding that Saddler did not lose his job and that the PAP Group never closed.
The District Court concluded that Elliott’s interpretation of the phrase “job loss” under the Plan was not arbitrary and capricious as it applied to Saddler.2 The District Court so found after taking into consideration Elliott’s inherent financial interest in denying Saddler severance pay. It accordingly granted summary judgment for Elliott and denied Saddler’s motion for summary judgment. We exercise plenary review over the District Court’s decision to grant summary judgment.
II.
As we explained in Doroshow v. Hartford Life and Accident Insurance Company, 574 F.3d 230, 233-34 (3d Cir.2009), the Supreme Court recently clarified the appropriate standard trial courts must apply when reviewing denials of benefits under ERISA § 1132(a)(1)(B). See Metro. Life Ins. Co. v. Glenn, 554 U.S. 105, 128 S.Ct. 2343, 171 L.Ed.2d 299 (2008). If the administrator of a benefits plan has discretion to determine eligibility for benefits, as Elliott did here, the denial of benefits is to be reviewed under an arbitrary and capricious standard. Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989). We have held that an arbitrary and capricious standard of review in this context is “essentially the same as the ‘abuse of discretion’ standard.” Abnathya v. Hoffmann-La Roche, Inc., 2 F.3d 40, 45 n. 4 (3d Cir.1993) (internal citation omitted). However, reviewing courts must weigh as a factor the inherent conflict of interest presented when the same party pays benefits and determines eligibility. See Glenn, 128 S.Ct. at 2350. The District Court correctly applied these standards when it reviewed Elliott’s denial of Saddler’s claim for severance pay.
In analyzing the merits of Saddler’s request for severance pay, the District Court *418first determined that the term “job loss” is ambiguous under the terms of the Plan because it could be interpreted reasonably in two ways. Nonetheless, the Court held the Plan did not compel Elliott to follow the interpretation most favorable to the employee because such an interpretation would eviscerate the administrator’s discretion, in contravention of Glenn. Thus, as Glenn mandates, the District Court weighed the conflict of interest as a factor, and reasoned that Elliott did not abuse its discretion in finding that Saddler suffered no job loss. We agree.
Elliott managers told Saddler that he was not being laid off before the transfer from Elliott to F.S. Elliott. Saddler missed no work after the transfer. On the contrary, he sat at the same desk with the same job responsibilities, telephone number, same or better salary, and became unemployed only when he voluntarily resigned from F.S. Elliott. In light of those stipulated facts, Elliott did not act in an arbitrary or capricious manner in concluding that Saddler did not suffer a job loss.
Moreover, the District Court searched the record and found that “there are no facts of record — other than the potential conflict itself — that any potential conflict of interest influenced Elliott’s decision.... ” App. at 14. Such analysis accords with Glenn. See 128 S.Ct. at 2351 (holding that trial courts must give a conflict of interest greater weight when “circumstances suggest a higher likelihood that it affected the benefits decision ....”).
III.
For the above-stated reasons, we will affirm the District Court’s order granting Elliott’s motion for summary judgment.
. The District Court had subject matter jurisdiction pursuant to 28 U.S.C. § 1331. Our jurisdiction to review the District Court’s final order arises under 28 U.S.C. § 1291.
. Also, the District Court found Elliott’s interpretation of the phrase "plant closing” to be “inconsistent with [its] conduct under the Plan,” because Elliott had provided severance pay to the PAP Group employees who were not transferred from Elliott to F.S. Elliott. App. at 12. The District Court reasoned that. since there was no evidence of a decline in business or a technology improvement when it occurred, Elliott treated the transfer of the PAP Group as a plant closure. We need not decide that issue because we find another disposition.
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Corey Antione Williams appeals the district court’s order denying his 18 U.S.C. § 3582 (2006) motion for reduction of sentence. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Williams, No. 3:01-cr-00031-FDW-13 (W.D.N.C. Apr. 16, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.
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OPINION OF THE COURT
JORDAN, Circuit Judge.
We have jurisdiction to review a summary judgment order denying qualified immunity “only to the extent that it turns on an issue of law.” Ziccardi v. City of Philo., 288 F.3d 57, 61 (3d Cir.2002) (quoting Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985)). In this case, the accounts of the incident underlying the claim of excessive force and the competing assertion of qualified immunity raise material issues of fact. As explained by the District Court:
We have an alleged eyewitness ... [a]nd he testified that the plaintiff was — that she was picked up approximately a foot off the ground and violently slammed to the ground. At which time he claimed he audibly heard her ankle bone snap.... In contrast, Officer Findlay testified that he performed a controlled takedown maneuver, which did not involve violently slamming the plaintiff to the ground as she claimed. But involved a twisting procedure whereby the plaintiff was taken down to her stomach.
(App. at A6-A7.) Later the Court stated, “the fundamental flaw in the defendants’ qualified immunity analysis is that [it is] based upon the factual premise or predicate ... that the takedown occurred in a controlled and non-violent manner. That contention, however, ... is hotly disputed by the plaintiff.” (App. at A12-A13.)
Because there is a fundamental factual dispute pertaining to the question of qualified immunity, we lack jurisdiction and, accordingly, will dismiss the appeal.
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OPINION
SLOVITER, Circuit Judge.
Romel Bolger, Latoya Kirkland, and Kenneth Thompson appeal the District Court’s denial of their motion to suppress evidence, including numerous kilos of cocaine, used against them at trial; Bolger and Thompson appeal the sufficiency of the evidence upon which their convictions for possession with intent to distribute cocaine and cocaine base rest; and Bolger appeals the District Court’s enhancement of his Guidelines calculation for possessing a firearm in connection with a drug trafficking offense.
I.
Background
After shots were fired near the intersection of Levick Street and Summerdale Avenue in Philadelphia, police found Bolger on the median of Levick Street, bleeding from the mouth and chest from a gunshot wound. In the nearby driveway of the house at 1053 Levick Street officers found a handgun, shell casings, and two cars with bullet holes, including a blue Ford Expedition with both its front doors open.
Officers Barclay and Erbele interviewed a witness at the scene who, the government asserts, told them that there had been a shoot-out between two groups of men, after which someone involved may have pulled a child from the Expedition and then entered 1053 Levick Street. Those officers also saw lights on in 1053 Levick and heard water running inside. One officer knocked on the door to no response. Erbele and Barclay concluded that someone injured in the shoot-out might be inside and, approximately ten minutes later, Erbele called his supervisor, Lieutenant Mangini of the SWAT team.
Mangini, who arrived about fifteen to twenty minutes later, and Erbele decided that the known facts merited entry into the building and that there was no time to secure a warrant. Within ten to fifteen minutes, the SWAT team was gathered, knocked on the door, announced their intent to check the “well-being” of the inhabitants loud enough that “everybody on [the] block [could] hear,” and received no answer. App. at 202. SWAT knocked again, received no response, and entered the building.
Just inside the door, the officers found a loaded handgun. Deeper inside the house, they discovered two more guns, sixty-one kilograms of cocaine, several bags of crack cocaine, and approximately $176,365. On one desk they found one “unwrapped” and two “wrapped” kilos of cocaine, at least one baggie with crack cocaine, a heat sealer with Thompson’s fingerprints, ziplock bags, a gun placed on top of a newspaper dated November 22, 2006, a notebook that appeared to be a drug ledger, and a scale with Bolger’s and Thompson’s fingerprints.
Investigation revealed that both Thompson and Kirkland resided at 1053 Levick. Bolger, Thompson and Kirkland were indicted for conspiracy to possess with intent to distribute cocaine and cocaine base *409(Count I), and conspiracy and aiding and abetting a conspiracy to maintain a house for the purposes of drug trafficking (Count II); Bolger and Thompson were indicted for possession on or about November 25, 2006 with intent to distribute cocaine (Count III) and crack cocaine (Count IV) and with aiding and abetting those offenses, and with possession, and aiding and abetting possession, of a weapon in furtherance of a drug trafficking crime (Count V); and Thompson was indicted as a convicted felon possessing a firearm (Count VI).
A. The motions to suppress
The defendants all moved to suppress the evidence found in the house, arguing that the warrantless search was prohibited by the Fourth Amendment because it was unreasonable for the police to believe that an injured person might have been inside 1058 Levick. The District Court held an evidentiary hearing at which Barclay testified that a witness, later identified as James Antoine, had told him at the scene that he was standing near the driveway of 1053 Levick when some men walked past, after which he heard shooting and dove under his car; after the shooting stopped, he “saw a male run down the driveway with a gun, [then go] back to a vehicle which was parked in the rear of 1053 Levick, extract a small child, run back down the driveway eastbound and then run back westbound in the driveway ... [and that] he thought he saw the male run into the house.” App. at 169. Erbele testified that a witness he spoke to — also presumably Antoine — said that he saw “a male holding a child, a small child ... running around up by where [Antoine’s] car was ... and ... that he said he thought he saw somebody going into [1053 Levick].” App. at 147.
The District Court denied the motions to suppress, apparently because of the evidence of exigent circumstances. Defendants moved for reconsideration on the basis of a document subsequently produced by the government that contained a summary of an interview of Antoine taken the night of the incident by an Officer Casee which purportedly contradicted the testimony of Barclay and Erbele. The Court held a second hearing at which Antoine was questioned about what he had observed regarding persons entering the Levick Street house. At one point, Antoine stated, “I don’t see nothing [from] where I stand, I can see nobody.” App. at 268. Pressed to clarify whether he told the police that he “saw anybody go to the back door of 1053 Levick Street,” Antoine answered, “I just say I don’t remember the house number, like I say I don’t remember who is in the house.” App. at 269. The Court then asked, “Did you point to the house?”, to which Antoine answered, “Yes, right there I see that in the back but I don’t remember the house.” App. at 269. The prosecution followed up by asking, “When you pointed to the house, you said you saw someone go to that door?”, and Antoine answered, “I don’t see someone go to the door, just argue back right here, the argument right here, that’s all.” App. at 269-70.
Erbele also testified, reiterating his former testimony but clarifying that, after speaking with Antoine the day of the shoot-out, he did not believe that Antoine knew where the man with the child went.
The District Court again denied the motions to suppress and supplemented its fact-findings by stating: “Antoine saw a male with a small child go up the driveway, return to the rear of 1053 Levick Street and then proceed towards Summer-dale Avenue ... Antoine [later] informed a uniformed officer at the scene ... what he had seen and heard.... Antoine, a Haitian, speaks with a heavy accent and is difficult to understand.... Sergeant Bar*410clay understood Antoine to report that a person with a small child may have gone into the property at 1053 Levick Street.... Barclay informed [Officer] Er-bele what he believed Antoine had seen.” Supp.App. at 98.
B. The trial and post-trial
A jury convicted Thompson of Counts I through IV; Bolger was convicted of Counts III and IV; and Kirkland was convicted of Count II. The District Court denied Bolger’s motion for acquittal. At sentencing, the Court enhanced Bolger’s Guidelines calculation by two points under U.S. Sentencing Guidelines § 2Dl.l(b)(l) (2007) for possessing a dangerous weapon in connection with a drug trafficking offense.
II.
Discussion1
A. Suppression
Defendants argue that the evidence should have been suppressed because of the absence of a warrant. Warrantless entry into a home is permitted “to assist persons who are seriously injured or threatened with such injury,” Brigham City v. Stuart, 547 U.S. 398, 403, 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006), but the “government must show a reasonable basis, approximating probable cause, both for the officers’ belief that an emergency exists and for linking the perceived emergency with the area or place into which they propose to intrude,” United States v. Martins, 413 F.3d 139, 147 (1st Cir.2005), cert. denied, 546 U.S. 1011, 126 S.Ct. 644, 163 L.Ed.2d 520 (2005). “We review the denial of a suppression motion for clear error as to the underlying facts, but exercise plenary review as to its legality in light of the district court’s properly found facts.” United States v. Coles, 437 F.3d 361, 365 (3d Cir.2006). “The presence of exigent circumstances is a finding of fact, which we review for clear error.” Id. at 366 (citation omitted).
The reviewing court must make an “objective assessment of an officer’s actions in light of the facts and circumstances then known to him,” Scott v. United States, 436 U.S. 128, 137, 98 S.Ct. 1717, 56 L.Ed.2d 168 (1978), “in light of the totality of the circumstances confronting the officers, including ... a need for an on-the-spot judgment based on incomplete information and sometimes ambiguous facts bearing upon the potential for serious consequences,” Martins, 413 F.3d at 147. The government bears the burden of proving exigency. Parkhurst v. Trapp, 77 F.3d 707, 711 (3d Cir.1996).
Defendants argue that the testimony given by Barclay and Erbele is “outrageously suspect” because it conflicts with Antoine’s testimony and because the officers did not note that “someone went into the house with the child” as part of “their ’49,’ which is their formal Police Report.” Appellants’ Br. at 12-13. Defendants argue further that “even if [Antoine] said that he ‘thought’ [he saw someone go] into the house, ... [that is] still ... not enough to establish probable cause or an exigent circumstance,” because “the man who took the child was in no way tied to the shooting in question,” and there “was nothing ... to indicate that either the man or the child was hurt in any way ... [including] no blood leading in or out of the home ... or other noise that might indicate an emergency....” Appellants’ Br. at 13. The Defendants also assert that there was no “imminence” to whatever danger existed because the police did not “rush[] into the home to save the child *411that they feared might be coming to harm.” Appellants’ Brief at 19.
We reject these arguments. The District Court found that Antoine and Officers Barclay and Erbele were all credible witnesses, and explained that the discrepancies between the officers’ testimony and Antoine’s testimony were due the Officers’ difficulty in understanding Antoine’s Haitian accent. This was not clear error. Both Erbele and Casee testified that they found it difficult to understand Antoine, and a fair reading of his testimony supports the genuineness of those assertions. Adding to the possible confusion, Antoine pointed at 1053 Levick while speaking with Barclay and Erbele.
To be sure, there was some confusion between the officers about what Antoine said, but this is unsurprising considering the interviews were conducted at the scene of a shoot-out. Barclay’s testimony is of debatable relevance given that Erbele spoke with Antoine after Barclay and it was Mangini and Erbele who together made the decision to enter the house, apparently based primarily on the information provided by Erbele. Still, Erbele had the following information: (1) there was a shoot-out; (2) a witness had said that soon after the shooting concluded someone might have entered 1053 Levick, a house adjacent to the scene of the shoot-out; (3) that person may have taken a child from the bullet-ridden Expedition, or may have been involved in the shoot-out, or both; (4) a witness told Erbele that more than one person had exited the Expedition, which had both its front doors open; and (5) there was water running in the house, the lights were on, and no one answered when the police knocked and announced their presence. These facts made the warrant-less search reasonable.
Defendants’ argument about the “49”— which does not appear in the record — is unconvincing. That document apparently reflects a statement by Erbele that a “male had taken a small child from the rear of a 2004 Expedition” and that “the male fled with the small child.” App at 158. That is not inconsistent with Erbele’s belief that the male could have entered 1053 Levick. Moreover, neither Erbele nor Barclay created or reviewed the 49, and both claim that they told whoever wrote that document the same information to which they testified at the suppression hearing.
We also reject Defendants’ argument that there was no exigency because the officers waited for the SWAT team. The time it took to collect information, call SWAT, decide to enter the building, then prepare to do so, was reasonable. It is well recognized that police officers can take “reasonable precautions to reduce the risk of serious injury to themselves or others.... ” Causey v. City of Bay City, 442 F.3d 524, 531 (6th Cir.2006) (quoting United States v. Salava, 978 F.2d 320, 324 (7th Cir.1992)). There was evidence that it was police procedure to wait for the SWAT team to enter a building when an armed person might be inside.
Defendants argue in the alternative that, even if the police were justified in entering the house, they were not justified in going past the entryway because “they could have called out” to see if anyone was hurt and because “there was no blood found; there was no loud noise nor screaming nor anything else that would have indicated that someone needed help.” Appellants’ Br. at 22. Defendants further assert that “the gun [found] on the floor” by the SWAT team “is immaterial” because “it is not against the law to have a gun in the home.” Appellants’ Br. at 22. The presence of the gun, however, increased the possibility that someone connected to the shoot-out was inside and in need of help, and the police had already “called out” *412before they entered the house and received no response. We will not disturb the District Court’s denial of the motion to suppress.
B. Sufficiency of the evidence
In support of their contention that they were entitled to a judgment of acquittal, Bolger and Thompson argue that a reasonable jury could not have found beyond a reasonable doubt that they possessed the drugs recovered from 1053 Levick because “mere proximity to the drug, or mere presence on the property where it is located or mere association with the person who does control the drug or the property, is insufficient to support a finding of possession,” United State v. Brown, 3 F.3d 673, 680 (3d Cir.1993) (citation omitted), and because the government “failed to demonstrate that [they] possessed any of the drugs ... on any date relevant to the prosecution,” Appellants’ Reply Br. at 21 (citing United States v. Hall, 473 F.3d 1295, 1309 (10th Cir.2007) (reversing conviction for possession of crack because “[w]hile [the] evidence [might have been] sufficient to establish that [defendant] possessed crack-cocaine at some time, the indictment charged [defendant] with possession and distribution on or about April 7, 2001 .... [and][n]one of [the] evidence shows that [defendant] possessed or distributed crack-cocaine at that time.”))
There was, however, substantial evidence from which the jury could convict Thompson of constructive possession of cocaine and crack on or about November 25, 2006: Thompson admits, and there was ample evidence from which the jury could infer, that he resided at 1053 Levick Street where large amounts of drugs and drug paraphernalia were found in plain sight; Thompson’s fingerprints were found on the scale and on the heat-sealer, which were next to kilos of cocaine; his fingerprints were also found on a drawer of that desk which contained a bag with a chunky white substance inside; there was evidence that those items had been placed there within a day of the shoot-out, including testimony by Brenda Kirkland, the aunt of Latoya Kirkland, that she had been in the apartment the day before the shoot-out, and had seen Thompson, but that the cocaine, gun, scale, etc., were not on the desk then; there was ample testimony that Thompson was present for the shoot-out and that it was he who retrieved his young son from the Expedition; and there was a “box of money” in the bedroom identified as Thompson’s.
There was also sufficient evidence to convict Bolger of aiding and abetting: four of his fingerprints were found on the recently-placed scale which, again, was next to an open package of drugs, baggies, and a heat sealer; Bolger was shot in the driveway outside 1053 Levick where, again, drugs were set-out in plain sight; three of his fingerprints were found on a glass in the kitchen near pots which seem to have been used in cooking crack cocaine; Bolger does not dispute that his street name was “Big Homie” and the notation “BH” in the notebook cum drug ledger was placed next to the number “1000” and the words “last run”; there were hundreds of phone calls placed between Bolger and Thompson, twelve of which were placed between November 22 and November 24; and there was substantial other evidence connecting Bolger with Thompson and with 1053 Levick. From this evidence, the jury could infer that Bolger had been helping, or was about to help, Thompson package drugs for sale. “Actual or constructive possession need not be shown to justify a conviction for aiding and abetting possession, only ‘some affirmative participation which at least encourages the principal offender to commit the offense.’” United States v. Frorup, *413963 F.2d 41, 43 (3d Cir.1992) (quoting United States v. Raper, 676 F.2d 841, 850 (D.C.Cir.1982)).
C. Bolger’s sentencing enhancement
Bolger argues that the District Court erred in finding that he possessed a Springfield Armory Ultra handgun found in the driveway of 1053 Levick. We disagree. It is undisputed that Bolger was present in that driveway just before the gun was discovered by the police. Also, at Bolger’s sentencing, the government called Agent Monahan who testified that the Springfield was traced to a man named Frost, who had purchased guns for Tull2 who told Monahan that he had supplied a Springfield to Bolger. Tull also told Monahan that he remembered that gun because it had three holes in the trigger and because it was all-metal and was therefore particularly heavy.
This evidence suffices to show that Bol-ger possessed the gun during the Shoot-out in the driveway of 1053 Levick. “[T]his Court ... review[s] factual findings relevant to the Guidelines for clear error and ... exercise[s] plenary review over a district court’s interpretation of the Guidelines.” United States v. Grier, 475 F.3d 556, 570 (3d Cir.2007) (en banc).
A District Court must apply a two-level Guidelines offense level increase if “a dangerous weapon (including a firearm) was possessed” in connection with a drug trafficking offense. U.S.S.G. § 2Dl.l(b)(l) (2007). “The adjustment should be applied if the weapon was present, unless it is clearly improbable that the weapon was connected with the offense.” U.S.S.G. 2D1.1 cmt. n. 3 (2007). There is no such improbability here.
III.
Conclusion
For the above-stated reasons, we will affirm the orders of the District Court.
. The District Court had jurisdiction under 18 U.S.C. § 3231 and this court has jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742.
. Tull had also testified during a hearing at trial that he had sold Bolger guns.
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OPINION OF THE COURT
PER CURIAM.
John Gagliardi, proceeding pro se, appeals the District Court’s partial dismissal of his original complaint and complete dismissal of his amended complaint. For the reasons that follow, we will affirm.
I.
In June 2008, Gagliardi filed a complaint in Pennsylvania state court against Verizon Pennsylvania Inc. (“Verizon”), AT & T Corp. (“AT & T”), Equifax Information Services LLC (“Equifax”), Experian Information Solutions, Inc. (“Experian”), Trans Union, LLC (“Trans Union”), and Allied Interstate, Inc. Gagliardi alleged, inter alia, that Verizon and AT & T had provided inaccurate information about him to Equifax, Experian, and Trans Union in retaliation for his efforts dating back to the 1970s to expose a long-running fraud committed by the “AT & T/Bell system.” The complaint raised a host of state law claims, as well as claims under the Fair Credit Reporting Act (“FCRA”), 15 U.S.C. § 1681 et seq., and Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq.
Shortly after Trans Union removed the case to federal court and answered the complaint, Gagliardi attempted to amend the complaint. That attempt, styled as his “First Amended Complaint,” was unsuccessful because he did not seek leave to amend, as required by Fed.R.Civ.P. 15(a)(2). Later, Verizon and AT & T each filed a motion to dismiss for failure to state a claim. On February 12, 2009, the District Court granted the two motions in part and denied them in part. The court *415held that, “other than his Count for retaliation, [Gagliardi] has failed to allege facts suggestive of conduct proscribed by the asserted causes of action.” (Opinion of Feb. 12, 2009, at 10.) As such, the court dismissed all of the claims against Verizon and AT & T — -with the exception of the retaliation claim — without prejudice. In doing so, the court stated that it would allow Gagliardi “a single opportunity to attempt to replead his [dismissed] claims,” provided he made that attempt within fourteen days. (Id. at 11.)
Less than fourteen days after the court’s order, Gagliardi filed an amended complaint, styled as “Plaintiffs Second Amended Complaint.” This amended complaint named only Verizon and AT & T as defendants — Gagliardi stipulated to the dismissal of the other four defendants— and alleged only one claim: retaliation. As before, both Verizon and AT & T moved to dismiss for failure to state a claim. On April 23, 2009, the District Court granted both motions. Gagliardi now appeals the District Court’s February 12, 2009 and April 23, 2009 orders.1
II.
Gagliardi has failed to present a viable argument in support of this appeal. First, he has waived any challenge to the dismissal of his retaliation claim, as his opening brief did not discuss that claim, instead focusing on the FCRA and civil conspiracy claims from his original complaint.2 See United States v. Pelullo, 399 F.3d 197, 222 (3d Cir.2005). Second, his discussion of his FCRA claim is irrelevant to this appeal, as he never asserted that claim against Verizon or AT & T. Finally, although he did assert his civil conspiracy claim against Verizon and AT & T, he cannot challenge the dismissal of that claim because he neither reasserted it in his amended complaint (despite having an opportunity to do so) nor indicated that he intended to stand on that claim as originally pleaded.3 See United States ex rel. Atkinson v. Pa. Shipbuilding Co., 473 F.3d 506, 516-17 (3d Cir.2007).
In light of the above, we will affirm the District Court’s February 12, 2009 and April 23, 2009 orders. Gagliardi’s requests to conduct discovery and further amend his complaint are denied.
.We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. That Gagliardi’s notice of appeal did not refer to the February 2009 order — he first indicated his intention to appeal that order in his opening brief — does not preclude us from reviewing that order. See Shea v. Smith, 966 F.2d 127, 129 (3d Cir.1992) (stating that “appellate jurisdiction vests over orders not specified in the notice of appeal if there is a connection between the specified and unspecified order[s], the intention to appeal the unspecified order is apparent, the opposing party is not prejudiced and has a full opportunity to brief the issues”).
. Although Gagliardi’s reply brief argues that he preserved his ability to challenge the District Court's dismissal of his retaliation claim, that brief, like his opening brief, does not address the merits of the court’s decision.
. Even if he could raise this issue, it nonetheless lacks merit, as the District Court did not err in dismissing his civil conspiracy claim for failure to state a claim.
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OPINION
SLOVITER, Circuit Judge.
Appellant Dennis Saddler (“Saddler”) appeals from the District Court’s order granting summary judgment for Elliott Company (“Elliott”), his former employer, on his claim for benefits allegedly due under the Employee Retirement Income Security Act of 1974 (“ERISA”) (as amended), 29 U.S.C. § 1132(a)(1)(B). Saddler asserts that he is entitled to severance pay pursuant to the Elliott Company Severance Plan (the “Plan”). We will affirm.1
I.
As the parties submitted a Joint Statement of Facts for purposes of their cross-motions for summary judgment, the relevant facts are not in dispute. Saddler is a participant in the Plan which is administered under ERISA. Saddler worked at Elliott as a project engineer for thirty-two years, the latter part of his tenure in El*417liott’s Plant Air Packaging Group (the “PAP Group”). In early September 2008, Elliott entered into an Asset Purchase Agreement to sell the assets of the PAP Group to another entity, F.S. Elliott Company (“F.S.Elliott”).
Before the sale was complete, Elliott managers held meetings with employees of the PAP group who would be “transferred” to F.S. Elliott to tell them “that they were not being laid off.” App. at 45. Saddler was transferred to F.S. Elliott, where he had the same job responsibilities, and worked for the same or better salary, out of the same building, at the same desk, and with the same telephone number. Five months after the transfer, Saddler resigned from F.S. Elliott.
Then, in September 2006, more than two years after he resigned and nearly three years after the transfer, Saddler sought severance pay from Elliott. Elliott’s written Severance Pay Policy allows payment at Elliott’s discretion to employees who lose their job under three circumstances: (1) a decline in business; (2) plant closing; or (3) a technology improvement. Elliott denied Saddler’s claim for severance pay. Two months later, Saddler appealed Elliott’s denial of his request for severance pay, arguing that his job at Elliott “was eliminated due to the plant closure/sale” to F.S. Elliott. App. at 48. Elliott denied Saddler’s appeal, finding that Saddler did not lose his job and that the PAP Group never closed.
The District Court concluded that Elliott’s interpretation of the phrase “job loss” under the Plan was not arbitrary and capricious as it applied to Saddler.2 The District Court so found after taking into consideration Elliott’s inherent financial interest in denying Saddler severance pay. It accordingly granted summary judgment for Elliott and denied Saddler’s motion for summary judgment. We exercise plenary review over the District Court’s decision to grant summary judgment.
II.
As we explained in Doroshow v. Hartford Life and Accident Insurance Company, 574 F.3d 230, 233-34 (3d Cir.2009), the Supreme Court recently clarified the appropriate standard trial courts must apply when reviewing denials of benefits under ERISA § 1132(a)(1)(B). See Metro. Life Ins. Co. v. Glenn, 554 U.S. 105, 128 S.Ct. 2343, 171 L.Ed.2d 299 (2008). If the administrator of a benefits plan has discretion to determine eligibility for benefits, as Elliott did here, the denial of benefits is to be reviewed under an arbitrary and capricious standard. Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989). We have held that an arbitrary and capricious standard of review in this context is “essentially the same as the ‘abuse of discretion’ standard.” Abnathya v. Hoffmann-La Roche, Inc., 2 F.3d 40, 45 n. 4 (3d Cir.1993) (internal citation omitted). However, reviewing courts must weigh as a factor the inherent conflict of interest presented when the same party pays benefits and determines eligibility. See Glenn, 128 S.Ct. at 2350. The District Court correctly applied these standards when it reviewed Elliott’s denial of Saddler’s claim for severance pay.
In analyzing the merits of Saddler’s request for severance pay, the District Court *418first determined that the term “job loss” is ambiguous under the terms of the Plan because it could be interpreted reasonably in two ways. Nonetheless, the Court held the Plan did not compel Elliott to follow the interpretation most favorable to the employee because such an interpretation would eviscerate the administrator’s discretion, in contravention of Glenn. Thus, as Glenn mandates, the District Court weighed the conflict of interest as a factor, and reasoned that Elliott did not abuse its discretion in finding that Saddler suffered no job loss. We agree.
Elliott managers told Saddler that he was not being laid off before the transfer from Elliott to F.S. Elliott. Saddler missed no work after the transfer. On the contrary, he sat at the same desk with the same job responsibilities, telephone number, same or better salary, and became unemployed only when he voluntarily resigned from F.S. Elliott. In light of those stipulated facts, Elliott did not act in an arbitrary or capricious manner in concluding that Saddler did not suffer a job loss.
Moreover, the District Court searched the record and found that “there are no facts of record — other than the potential conflict itself — that any potential conflict of interest influenced Elliott’s decision.... ” App. at 14. Such analysis accords with Glenn. See 128 S.Ct. at 2351 (holding that trial courts must give a conflict of interest greater weight when “circumstances suggest a higher likelihood that it affected the benefits decision ....”).
III.
For the above-stated reasons, we will affirm the District Court’s order granting Elliott’s motion for summary judgment.
. The District Court had subject matter jurisdiction pursuant to 28 U.S.C. § 1331. Our jurisdiction to review the District Court’s final order arises under 28 U.S.C. § 1291.
. Also, the District Court found Elliott’s interpretation of the phrase "plant closing” to be “inconsistent with [its] conduct under the Plan,” because Elliott had provided severance pay to the PAP Group employees who were not transferred from Elliott to F.S. Elliott. App. at 12. The District Court reasoned that. since there was no evidence of a decline in business or a technology improvement when it occurred, Elliott treated the transfer of the PAP Group as a plant closure. We need not decide that issue because we find another disposition.
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OPINION
PER CURIAM.
In February 2009 Juan Mota filed this pro se mandamus petition seeking an order that the District Court immediately rule upon the motion he filed pursuant to 28 U.S.C. § 2255 four years ago.
Subsequently, on February 9, 2009, the District Court appointed counsel for Mota and scheduled an evidentiary hearing on his § 2255 motion. That hearing took place on March 17, 2009. The government has filed a memorandum in the District Court and Mota has been given until April 6, 2009 to respond.
*419The District Court has now proceeded on Mota’s § 2255 motion, and we are confident that the court will eventually rule on the motion promptly. Accordingly, we will deny his petition for a writ of mandamus.
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OPINION
PER CURIAM.
Petitioner Zhou Jian Ni is a citizen of China. He entered the United States in *4201992, and was paroled into the United States for 90 days as an asylum applicant. His application was denied in 1993, and he did not appeal that order. In January 2007, Ni filed a motion to reopen his immigration proceedings, citing new country conditions in China. The IJ denied his motion, and the BIA dismissed his appeal. Ni then filed a petition for review. We have jurisdiction pursuant to 8 U.S.C. § 1252(a). We review the BIA’s denial of a motion to reopen for abuse of discretion. Guo v. Ashcroft, 386 F.3d 556, 562 (3d Cir.2004). Thus, the decision of the BIA should be affirmed unless “arbitrary, irrational, or contrary to law.” Tipu v. INS, 20 F.3d 580, 582 (3d Cir.1994). The BIA’s factual findings must be upheld “unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B).
A “motion to reopen shall be filed within 90 days of the date of entry of a final administrative order of removal.” 8 U.S.C. § 1229a(c)(7)(C)(i). However, the 90-day time limitation does not apply to a motion to reopen if that motion is based on “changed country conditions arising in the country of nationality ... if such evidence is material and was not available and would not have been discovered or presented at the previous proceeding.” § 1229a(c)(7)(C)(ii). Further, a motion to reopen must establish prima facie eligibility for asylum. See Guo, 386 F.3d at 563. This requires “the applicant to produce objective evidence showing a ‘reasonable likelihood’ that he can establish [that he is entitled to relief].” Id. (quoting Sevoian v. Ashcroft, 290 F.3d 166, 175 (3d Cir.2002)).
In support of his motion to reopen, Ni argued that he would be subjected to forced sterilization procedures if returned to his native Fujian Province because he fathered two children in the United States, and because China’s family planning policies have become more strictly enforced. Ni submitted various documents, including his own affidavit, two administrative opinions from Chinese family planning agencies, and an unsworn, unsigned photocopy of the Aird affidavit, which details the late demographer’s account of the enforcement of Chinese family planning policies.
The BIA reasoned that Ni failed to demonstrate changed circumstances for three reasons. First, the BIA noted that Ni’s affidavit, which simply repeated his previously considered fears regarding forced sterilization, did not demonstrate “changed circumstances” in China. We agree. See Zhao v. Gonzales, 440 F.3d 405, 407 (7th Cir.2005) (noting that “cumulative evidence that conditions asserted in the original application ‘persisted’ is not evidence of changed circumstances”).
Second, the BIA noted that it had previously considered in precedential cases documents identical or substantially similar to Ni’s submissions, but had concluded that such evidence failed to demonstrate material changes in the family planning policies of Fujian Province. See, e.g., Matter of S-Y-G-, 24 I. & N. Dec. 247, 247-48 (BIA 2007) (considering administrative decisions from Fujian Province family planning agencies); Matter of J-W-S-, 24 I. & N. Dec. 185, 189 (BIA 2007) (considering, inter alia, the Aird Affidavit). Although the Board did not conduct an exhaustively detailed analysis of every bit of evidence Ni submitted, we think the Board’s express consideration of evidence relevant to its analysis was sufficient to support its decision, and we do not think that the Board’s somewhat abbreviated discussion amounted to an abuse of discretion in that regard. See Zheng v. Att’y Gen., 549 F.3d 260, 266-69 (3d Cir.2008) (noting that we do not require the Board “to write an exegesis on every contention” when its analysis indicates that it has reviewed the *421record and understood the movant’s claims).
Finally, the Board noted that, contrary to Ni’s assertions, his case is distinguishable from that of the petitioner in Guo. In that case, Guo filed a timely motion to reopen, and thus only needed to demonstrate to the Board prima facie evidence of her entitlement to asylum. See 386 F.3d at 563-64. As the BIA correctly noted, because Ni failed to file a timely motion to reopen, he also bore the burden of demonstrating the existence of changed circumstances. See 8 U.S.C. § 1229a(c)(7)(C)(ii). Ni presents no good reason to question that assessment.
Accordingly, we will deny the petition for review.
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OPINION
PER CURIAM.
Petitioner Zhima Jiata, a native of Tibet and citizen of China, was admitted to the United States on or about August 31, 2005. On April 17, 2006, he was served with a Notice to Appear, which charged that he was removable under Immigration & Nationality Act (“INA”) § 237(a)(1)(A), 8 U.S.C. § 1227(a)(1)(A), as an alien who did not possess a valid entry document. On May 5, 2006, Jiata filed an application for asylum under INA § 208(a), 8 U.S.C. § 1158(a), withholding of removal under INA § 241(b)(3), 8 U.S.C. § 1231(b)(3), and protection under the Convention Against Torture, 8 C.F.R. §§ 1208.16(c), 1208.18, claiming persecution based on his Tibetan ethnicity and his Buddhist religion, and he attached to it a personal statement about events that transpired in his Tibetan village in 2004 and 2005.
Jiata conceded that he was removable as charged. At his merits hearing in Immigration Court on October 19, 2006, he testified that he was from Yazhong, a small village in the Lithang District of occupied Tibet. All of the people in his village were, like him, ethnic Tibetans and followers of the Buddhist teachings of His Holiness the Dalai Lama. He testified that his wife, Abang, and their eldest daughter, Luorang Zhema, remained in Yazhong, but that, in 2004, he sent his two younger daughters, Tashi Choezom and Namgyal Wangmo, to India in the company of his elder brother. He did this so that they could study the Tibetan culture and heritage in Dharamsala, the Tibetan community in exile in India.
Because he sent his daughters to school in India, the Chinese police in Yazhong arrested him on December 20, 2004 on charges that he supported the Tibetan government in exile. The police detained him for two weeks at the local police station and questioned him about whether he had political connections with the Dalai Lama in India. When he denied that he had any such connections, they beat him on the back with a rubber stick, hit him in the face, and kicked him in the legs. Jiata testified that the police would not release him until he paid a 5000 RMB fine, which sum he lacked and had to borrow from his wife’s relative. The police released him on January 4, 2005 on the condition that he report to the station every month or face further arrests and fines. The pain he felt from the beatings caused him to consult a local doctor three or four times during the month after he was released from detention. Jiata testified that he left Tibet on August 31, 2005, because he was afraid that he might again face arrest, and he testified that he was afraid to return to Tibet because he might face life imprisonment.
On cross-examination, Jiata was asked whether the Chinese police had been looking for him in Yazhong since he left, and he testified: “At home, I have no contact right now.” App. 177. He admitted, however, that he had contact with his wife, Abang, in Yazhong, through her relative, Lobsang. See id. Asked whether Lob-sang had told him that anyone had been looking for him since he left home, Jiata testified: “I didn’t get any such information.” Id. at 178. Asked why he believed the police even cared about him now, since he had not reported, as required, for over a year, he testified: “I have no information.” Id. at 179. Asked whether he had contact with his daughters in India, Jiata testified that, since his arrival in the United States, he had talked with them by *423telephone on their school holidays. Id. at 167.
Along with his asylum application and attached statement, Jiata submitted into evidence a copy of the following documents: (a) his passport and visa; (b) his Household Register; (c) his Freedom Movement Book; (d) his Residence ID; (e) a letter from the Dhokham Chushi Grang-druk, Inc., in New York; (f) undated photographs of his family, and a photograph of a Free Tibet demonstration in New York; (g) the affidavit of Kalsang Gyatotsang, from New York; (h) the State Department’s 2005 Country Report for China (including Tibet); (i) the State Department’s 2005 Profile of Asylum Claims and Country Conditions in China; (j) a Washington Post newspaper article on Tibetans in China; (k) a report entitled, “Prisons in non-TAR Tibet;”1 (l) an internet report from guchusum.org on deaths in Tibet; (m) a 1997 report, entitled “Striking Hard: Torture in Tibet;” (n) a 2000 report entitled, “Torture in Tibet,” submitted to the United Nations Committee Against Torture; and (o) the 2005 Report to Congress on human rights in China.
The Immigration Judge denied relief and ordered Jiata removed to China. The IJ found that Jiata’s testimony compelled an adverse credibility finding due to two material omissions from his application and attached statement: that police demanded that he pay a fine before they would release him from detention, and that his pain from the beatings in detention caused him to seek treatment from a doctor three or four times during the month after his release from detention. The IJ pointed out that Jiata could have, but did not, provide documentary evidence that might have overcome the weaknesses in his case and the discrepancies between his testimony and his application; for example, he could have corroborated his testimony that his daughters attended a Tibetan school in India and he could have corroborated his testimony that he was arrested and detained because his daughters attended the school. He could have provided a statement from his wife to corroborate his arrest on December 20, 2004, and he could have provided a statement from his wife’s relative to corroborate his testimony that the police would not release him until he paid them a fine. The IJ also found that Jiata had failed to prove that he had a well-founded fear of future persecution, in part because of his admission that his wife and all of the other Tibetan Buddhists in Yazhong remained there. The IJ also noted that, despite Jiata’s testimony that he might be imprisoned for life if he returned home, his application contained no mention of the police contacting anyone in his family about him since he left his village. The IJ found that Jiata failed to meet the higher standard required to establish eligibility for withholding of removal, and he also denied Jiata’s CAT claim for lack of evidence.
Jiata appealed to the Board of Immigration Appeals. On March 21, 2008, the Board dismissed his appeal, concluding that the IJ’s credibility determination was not clearly erroneous, 8 C.F.R. § 1003.1(d)(3). The Board agreed with the IJ that material inconsistencies existed between Jiata’s testimony and his asylum application and statement regarding the medical treatment he received after his detention and the fine he was required to pay to secure his release. He also failed to provide readily available corroboration from his daughters and his wife. The Board noted that, although Jiata claimed to have a well-founded fear of persecution, he failed to provide any evidence that his wife or any of his family members have been contacted by police or have experi*424enced any problems since his departure in August 2005. The Board also agreed with the IJ that Jiata failed to establish that he is more likely than not to be tortured, citing 8 C.F.R. § 1208.16(c)(2).
Jiata did not file a petition for review of the Board’s March 21, 2008 final order. On or about May 12, 2008, he filed a timely motion to reopen with the Board pursuant to 8 C.F.R. § 1003.2(c), explaining that he had recently obtained evidence to substantiate his claim of past persecution. Specifically, he now had an affidavit from his wife and one from his brother-in-law, Lob-sang, attesting to his treatment by the Chinese government in 2004 and 2005. His wife asserted in her statement that the Chinese police have paid her a visit and questioned her about Jiata’s whereabouts, verbally and physically abusing, harassing and intimidating her. She believes that she is still being monitored. Lobsang asserted in his statement that he paid 5000 RMB to secure Jiata’s release from detention on January 4, 2005. In addition, Jiata had evidence to document that his two daughters are bona fide students at the Tibetan SOS Children’s Village. The motion to reopen also relied on the recently issued 2007 State Department Country Report on China.
Jiata claimed that he obtained these statements and documents only recently, and he attached an envelope in which they had arrived, via mail, that was postmarked October 22, 2006, and which, he asserted, demonstrated that they were not available and could not have been presented at his October 19, 2006 hearing.
On September 22, 2008, the Board denied Jiata’s motion to reopen, concluding that he failed to show that his new evidence was material, unavailable and could not have been presented at his original hearing. See 8 C.F.R. § 1003.2(c)(1); Caushi v. Att’y Gen. of U.S., 436 F.3d 220, 231 (3d Cir.2006). The Board reasoned that Jiata had failed to explain adequately why his family members’ statements, describing events in 2004 and 2005, were not available and could not have been presented at his October 19, 2006 hearing, given that they contained information that was clearly discoverable at an earlier time. See Ezeagwuna v. Ashcroft, 325 F.3d 396, 408-10 (3d Cir.2003). It appeared to the Board that Jiata was simply tardy in requesting the evidence from family members. The information about his daughters’ school attendance also could have been obtained earlier through the exercise of diligence. Furthermore, it did not corroborate Jiata’s claim that he had been arrested and beaten by Chinese authorities because of their school attendance in India. Finally, the 2007 Country Report did not, by itself, given the previous adverse credibility determination, establish that Jiata now had a prima facie case for asylum, and, in any event, the pertinent information in the Country Report was previously available.
Jiata has timely petitioned for review of the Board’s decision denying his motion to reopen, and thus we may exercise jurisdiction, 8 U.S.C. § 1252(a)(1). We lack jurisdiction to review any claims regarding the Board’s March 21, 2008 order, because Jiata did not file a timely petition for review of that decision. See 8 U.S.C. § 1252(b)(1); Stone v. Immigration & Naturalization Serv., 514 U.S. 386, 405, 115 S.Ct. 1537, 131 L.Ed.2d 465 (1995). Thus, we cannot review the agency’s initial adverse credibility determination.
We review the Board’s denial of a motion to reopen for abuse of discretion. Immigration & Naturalization Serv. v. Do-herty, 502 U.S. 314, 323, 112 S.Ct. 719, 116 L.Ed.2d 823 (1992). Under this standard, we will reverse the Board’s decision only if it is arbitrary, irrational, or contrary to law. Sevoian v. Ashcroft, 290 F.3d 166, 174 (3d Cir.2002). “As a general rule, *425motions to reopen are granted only under compelling circumstances.” Guo v. Ashcroft, 386 F.3d 556, 562 (3d Cir.2004).
In a motion to reopen removal proceedings, the alien must proffer “new facts to be proven at a hearing to be held if the motion is granted,” and the motion “shall be supported by affidavits or other eviden-tiary material.” 8 C.F.R. § 1003.2(c)(1). A motion to reopen proceedings “shall not be granted” unless it appears to the Board that the evidence offered “is material and was not available and could not have been discovered or presented at the former hearing.” Id. See also Caushi, 436 F.3d at 232. Even if prima facie eligibility for the underlying relief of asylum is shown, the Board still has discretion to deny the motion. 8 C.F.R. § 1003.2(a).
The alien carries the heavy burden of demonstrating that his motion should be granted; there are both procedural and substantive hurdles that must be overcome. Shardar v. Att’y Gen. of U.S., 503 F.3d 308, 313 (3d Cir.2007). The Board may deny a motion to reopen proceedings on any of these grounds: (1) it may hold that the alien has failed to establish a prima facie case for the underlying substantive relief; (2) it may conclude that the alien has failed to introduce previously unavailable and material evidence; and (3) if the underlying substantive relief is discretionary, it may decline to consider the first two threshold requirements and, instead, determine that the alien would not be entitled to the requested discretionary grant of relief. Doherty, 502 U.S. at 323, 112 S.Ct. 719 (citing Immigration & Naturalization Serv. v. Abudu, 485 U.S. 94, 104-05, 108 S.Ct. 904, 99 L.Ed.2d 90 (1988)).
We conclude that the Board did not abuse its discretion in denying Jiata’s motion to reopen. Its reasons for denying the motion were not arbitrary, capricious or contrary to law. Jiata argues that the Board engaged in speculation when it found that the statements of family members that he submitted were previously discoverable and available and could have been presented at his hearing. Specifically, he contends that the postmark on the envelope containing them postdated his hearing and, thereby, proves that they were not available on October 19, 2006. (Petitioner’s Brief, at 4-6).
We reject this argument as meritless. Under the regulation, the date on which the statements were mailed is irrelevant. A motion to reopen proceedings “shall not be granted” unless it appears to the Board that the evidence offered “is material and was not available and could not have been discovered or presented at the former hearing.” 8 C.F.R. § 1003.2(c)(1) (emphasis added). The Board could, without abusing its discretion, conclude that the statements and documents were discoverable prior to Jiata’s October 2006 hearing date; that is, that Jiata, had he taken reasonable steps, could have obtained the statements concerning events which transpired in 2004 and 2005. Jiata’s hearing testimony establishes that he had contact with his wife through her brother. He also had contact with his daughters. Jiata did not address in his motion to reopen why he could not have contacted the school earlier and obtained his daughters’ records in advance of his hearing. Since there was contact with both his brother-in-law, Lob-sang, and his daughters, and with his wife through Lobsang, the Board had discretion to conclude that Jiata could have obtained the materials in time for his October 2006 hearing. See Ezeagwuna, 325 F.3d at 409.
In addition, Jiata did not address the Board’s concern that he failed to establish that the school report, which only indicates that his daughters attended the school in November of 2006, corroborated his claim that he was persecuted by Chinese authorities in 2004 and 2005 because of their attendance. The school records *426submitted in support of the motion to reopen failed to establish that his daughters attended a Tibetan school in India during the relevant time period. See 8 C.F.R. § 1003.2(c)(1) (stating that a motion to reopen shall not be granted unless the evidence offered is “material”); Abudu, 485 U.S. at 104-05, 108 S.Ct. 904 (stating that the Board may deny a motion where the movant has failed to establish a prima facie case for the underlying substantive relief, or failed to introduce material evidence). Further, Jiata he did not show that the information in the 2007 Country Report about the treatment of Tibetans in China differed in a material way from the information contained in the 2005 Country Report. See id. Both reports, in fact, provide similar information concerning the Chinese government’s serious human rights abuses against Tibetans. Accordingly, the Board acted within its discretion in concluding that reopening Jiata’s removal proceedings was not warranted. Doherty, 502 U.S. at 823, 112 S.Ct. 719; Abudu, 485 U.S. at 104-05, 108 S.Ct. 904.
We will deny the petition for review.
. The initials TAR stand for the Tibet Autonomous Region.
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*427OPINION
AMBRO, Circuit Judge.
Dale Brandon appeals the sentence imposed on him by the District Court after he pled guilty to a two-count indictment for (1) conspiracy to distribute heroin in violation of 21 U.S.C. §§ 846 and 841(b)(1)(C), and (2) aiding and abetting the distribution of heroin in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C), and 18 U.S.C. § 2. Brandon claims that the Court erred in sentencing him pursuant to the career offender enhancement in the United States Sentencing Guidelines § 4B1.1. He contends that the charging document for a predicate offense did not prove that it was a felony controlled substance offense punishable by over one year in prison, even though he was actually sentenced to two to four years’ imprisonment for that offense. We affirm in all respects.
I.
In October 2007, Brandon was indicted by a grand jury for violations of the statutes noted above. He was arrested in November 2007, and pled guilty in February 2008. This was an open plea, not pursuant to any written agreement with the Government.
In May 2008, the final Pre-Sentence Investigation Report (“PSR”) was issued by the assigned United States Probation Officer. The PSR concluded that Brandon was subject to the career offender provisions of § 4B1.1 of the Guidelines. This conclusion was based on two predicate offenses: (1) a state court conviction for robbery; and (2) a state court conviction for possession of a controlled substance with intent to distribute. Brandon does not dispute that the first offense qualifies as a predicate offense. He does, however, dispute that the second offense qualifies. He challenged the PSR insofar as it designated him a career offender, and declined to stipulate to any predicate offenses. After the Government filed its response, Brandon was sentenced to 100 months’ imprisonment by the District Court in August 2008, and he appeals.1
II.
Brandon’s claim essentially is this: although he was actually sentenced to two to four years’ imprisonment for a predicate offense, that is not sufficient to show that it was an offense punishable by more than one year imprisonment for the purposes of the career offender enhancement. We disagree.
We begin by looking to the career offender provision of the Guidelines. Section 4B1.1 defines a career offender as follows:
A defendant is a career offender if (1) the defendant was at least eighteen years old at the time the defendant committed the instant offense of conviction;
(2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense; and
(3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense.
Guidelines § 4Bl.l(a). A controlled substance offense is also defined in the Guidelines:
The term “controlled substance offense” means an offense under federal or state law, punishable by imprisonment for a *428term exceeding one year, that prohibits the manufacture, import, distribution, or dispensing of a controlled substance (or a counterfeit substance) or the possession of a controlled substance (or a counterfeit substance) with intent to manufacture, import, export, distribute, or dispense.
Guidelines § 4B1.2(b). Finally, a felony is defined as “a prior adult federal or state conviction for an offense punishable by ... imprisonment for a term exceeding one year.” Guidelines § 4B1.2 cmt. n. 1.
Brandon pled guilty to a violation of 35 Pa. Cons.Stat. § 780-113(a)(30) in September 2004. The statute reads as follows:
The following acts and the causing thereof within the Commonwealth are hereby prohibited:
(30) Except as authorized by this act, the manufacture, delivery, or possession with intent to manufacture or deliver, a controlled substance by a person not registered under this act, or a practitioner not registered or licensed by the appropriate State board, or knowingly creating, delivering or possessing with intent to deliver, a counterfeit controlled substance.
Subsection 780 — 113(f) establishes a penalty schedule for violations of § 780-113(a)(30). It provides four categories of offense that are punishable by more than one year, and one category that is punishable by less than one year.
In October 2004, Brandon was actually sentenced for this offense to, among other things, “[n]ot less than Two nor more than Four years state custody.” The signed order of sentence was presented to the District Court. At no point did Brandon object to or appeal the sentence as being in violation of the penalty schedule in § 780-113(f), but Brandon now submits that, because the offense could in some instances be punished by less than one year, the evidence submitted by the Government as proof that his conviction for possession with intent to distribute qualified as a “controlled substance offense” under § 4B1.1 — namely, the signed order of sentence — was insufficient. He speculates that “perhaps [he] and his prior counsel agreed not to challenge the length of that sentence on appeal, even though it is, in fact, greater than one year, because his guilty plea ... would not enhance a future federal court conviction, like the one currently before this Court.” (Appellant’s Br. 20.) This argument falls far short of succeeding.
In Shepard v. United States, 544 U.S. 13, 16-17, 19, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005), the Supreme Court outlined the “modified categorical approach” to apply if the statutory elements of a prior conviction are unclear as to whether they satisfy a sentence enhancement. While keeping in mind the need to “avoid[ ] subsequent evidentiary enquiries into the factual basis for the earlier conviction,” the Court did not limit the judicial inquiry strictly to charges and instructions. Id. at 20, 125 S.Ct. 1254. It also permitted reference to a judge’s formal rulings of law and findings of fact, the statement of factual basis as shown by a transcript of plea colloquy or written plea agreement presented to the court, or by a record of comparable findings of fact adopted by the defendant upon entering the plea. Id. An order sentencing a defendant to a term of imprisonment is certainly a judge’s formal ruling that a subsequent court may look to under Shepard.
Accordingly, the formal order of the Court in 2004 for Brandon’s drug offense under Pennsylvania law establishes that he was convicted of a controlled substance offense felony punishable by imprisonment exceeding one year. Thus, the § 4B1.1 enhancement was proper.
i{i # 'Jfi # *
*429We hold that the Brandon met the requirements for a sentence enhancement under Guidelines § 4B1.1, and thus affirm the judgment of the District Court.
. The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction under 28 U.S.C. § 1291. To the extent Brandon contends that his sentence was imposed in violation of law, we have jurisdiction under 18 U.S.C. § 3742. Because Brandon raises purely legal issues of statutory and constitutional interpretation, our review is plenary. See, e.g., United States v. Singletary, 268 F.3d 196, 199 (3d Cir.2001).
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OPINION
AMBRO, Circuit Judge.
Michael DelBuono appeals his sentence after he pled guilty to three offenses: (1) conspiracy to distribute heroin in violation of 21 U.S.C. §§ 846 and 841(b)(1)(C); (2) distribution of heroin in violation of 21 U.S.C. § 841(a)(1); and (3) distribution, and aiding and abetting the distribution, of heroin in violation of 21 U.S.C. § 842 and 18 U.S.C. § 2. DelBuono claims that the Court abused its discretion in considering the relevant sentencing factors under 18 U.S.C. § 3553(a) and that, in any event, his sentence was unreasonable. We disagree and thus affirm.
In October 2007, DelBuono was indicted by a federal grand jury. The indictment charged him with the crimes noted above, to all of which he pled guilty. This was an open plea, not pursuant to any written agreement with the Government. DelBuo-no does not challenge his plea nor the factual basis.
Prior to sentencing, the final Pre-Sen-tence Investigation Report was issued by *430the assigned United States Probation Officer. It concluded that the advisory Guidelines range was 188 to 235 months’ incarceration. At that time, the Government submitted a Sentencing Memorandum that asked the District Court to impose a sentence within the advisory range. In August 2008, two days before the sentencing hearing, DelBuono asked for a sentence at the bottom of the Guidelines range. Through his counsel, he submitted to the Court numerous letters of support from members of the community where he lived.
On examination, the Government concluded that at least some of the letters of support were fraudulently created by Del-Buono’s sister. This was determined in part through recordings of DelBuono’s telephone conversations at the Federal Detention Center in Philadelphia. The Government then prepared a Motion for Upward Variance, which it filed immediately prior to the sentencing hearing. The District Court asked the Government and DelBuono whether either wanted a continuance for purposes of responding, but Del-Buono and counsel stated that they were prepared to proceed. Later in the hearing, the Government withdrew its Motion for Upward Variance and instead argued for a sentence at the high end of the Guidelines range based in part on the submission of fraudulent letters. The Court specifically stated that it would ignore the allegedly fabricated letters themselves, but would take into consideration DelBuono’s apparent approval and encouragement of their creation. The Court also stated that it would pay “respectful attention” to letters that were signed and appeared genuine. Finally, during argument by counsel for DelBuono, the Court specifically noted that it would take into consideration the factors in § 8553(a).
After argument, DelBuono was sentenced to 230 months’ imprisonment. The District Court stated its reasoning on the record, taking care to discuss the factors under § 3553(a). The Court stated that it had intended to sentence DelBuono at the bottom of the Guidelines range, but in light of the presentation of false letters with DelBuono’s encouragement, it sentenced him at the top of the range. He now appeals that sentence.
The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction under 28 U.S.C. § 1291. To the extent DelBuono contends that his sentence was imposed in violation of law, we have jurisdiction under 18 U.S.C. § 3742.
We review a sentence under a deferential abuse-of-discretion standard. United States v. Jones, 566 F.3d 353, 366 (3d Cir.2009) (citing Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007)). We first ensure that the District Court committed no significant procedural error in arriving at its decision; second, we review the substantive reasonableness of the sentence. Id. (citation omitted).
The only question appealed by DelBuo-no is whether the District Court was unreasonable in sentencing him to 230 months’ imprisonment and whether such a sentence was greater than necessary to account for all sentencing factors in § 3553(a).1 Specifically, he argues that the Court “failed to give relevant factors the significant weight that should have been afforded those factors,” such as his *431“horrific upbringing,” his “lower intellectual ability,” and his “most obvious drug abuse that went untreated.” He also draws attention to the fraudulent letters, arguing that the Court improperly considered them after the Government withdrew its motion for an upward variance. We see no abuse of discretion.
While a district court need not discuss and make findings as to each § 3553(a) factor2 if the record makes clear it took the factors into account in sentencing and gave them meaningful consideration, here the Court systematically went through the various factors. It specifically considered the history and characteristics of DelBuo-no, noting that although he had problems growing up, he is “a smart, grown-up man [who] should [have] known better.” It also noted that he apparently never tried to get a legitimate job, and upon his release from prison for a prior offense, he went “back to leading a heroin distribution gang.” He “show[ed] no inclination to change his ways ... [, as] he’s had a third, fourth, and fifth chance.” With respect to the nature and circumstances of the offense, the Court noted that DelBuono was the leader of the gang, “not just a street follower.” It also noted that there was no need for drug rehabilitation. DelBuono’s counsel, the same attorney who represents him on appeal, conceded at sentencing that Del-Buono was “obviously” not a drug addict and “ha[d]n’t been for a while.” He also conceded that there was nothing in the record to suggest that the prior drug offenses were the result of a personal need for drugs instead of a need for money.
The Court considered DelBuono’s arguments whether 10, 12, or 13 years would be sufficient to send a message to the community, and it concluded that a longer sentence would “keep[] the community safe while he’s put away” and thereby protect the public from further crimes by DelBuono. The Court also considered the rehabilitative purposes of the sentence from a vocational standpoint, emphasizing that the sentence imposed would “give [DelBuono] a chance to develop a career, get a job in prison and learn how to do something and earn money legally, which will be something new and novel for [him] when [he] get[s] out.” It considered as well the other kinds of sentences available, *432and concluded imprisonment was necessary. Comparing the sentences of his co-defendants and other defendants with similar records and similar conduct, the Court did not believe there would be any unwarranted sentence disparity, noting that some disparity was warranted due to Del-Buono’s ringleader position.
With respect to the letters, the Court based its conclusion not on the Government’s withdrawn motion for an upward variance, but instead on the argument at the sentencing hearing and its own findings that the submission of fraudulent letters of support “is a contempt of court that deserves to be taken into consideration.” It added: “Fortunately, I’m not completely stupid, and I recognized some of them that I had time to read as fake.” It later concluded: “[Y]ou certainly encouraged your sister and allowed her to think she was doing something to help you, rather than something that would harm you.” DelBuono and his counsel did not contest this. All of these statements were in the context of the sentence colloquy and were part of the Court’s conclusions on the characteristics of DelBuono.
In short, we believe the Court adequately addressed the § 8553(a) factors and “set forth enough to satisfy [us] that [s]he has considered the parties’ arguments and has a reasoned basis for exercising [her] own legal decisionmaking authority.” Jones, 566 F.3d at 366 (citations omitted). After noting these factors, the Court imposed a sentence within the Guidelines range of 188-235 months.
If the sentence “falls within the broad range of possible sentences that can be considered reasonable in light of the § 3553(a) factors,” we affirm. Jones, 566 F.3d at 366 (citation omitted). Here, the District Court sentenced DelBuono to a substantively reasonable term of 230 months’ imprisonment. We thus affirm.
. We note that it is unclear whether DelBuo-no is asserting significant procedural error by the Court in arriving at its decision. While he cites to legal authority that establishes the need for procedural reasonableness, he does not assert any particular procedural error and instead contends that the sentence "simply reflected the Court's frustration with [his] pri- or criminal record." (See Appellant's Br. 4, 6.) Even if DelBuono does assert procedural error, we see no such error here.
. The section reads in pertinent part as follows:
The court shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of this subsection. The court, in determining the particular sentence to be imposed, shall consider—
(1) the nature and circumstances of the offense and the history and characteristics of the defendant;
(2) the need for the sentence imposed—
(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the defendant; and
(D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner;
(3) the kinds of sentences available;
(4) the kinds of sentence and the sentencing range established for ... the applicable category of offense committed by the applicable category of defendant as set forth in the guidelines ...
(5) any pertinent policy statement ... issued by the Sentencing Commission ... [;]
(6) the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; and
(7) the need to provide restitution to any victims of the offense.
18 U.S.C. § 3553(a).
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OPINION
PER CURIAM.
Vetetim Skenderi petitions for review of a decision rendered by the Board of Immigration Appeals on August 15, 2008. For the reasons that follow, we will deny the petition for review.
I. Background
Skenderi is a native and citizen of Albania. He entered the United States in November 2002 and was placed in removal proceedings. In June 2003, Skenderi applied for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”), based upon his support for Albania’s Democratic Party (“DP”).
After a February 2004 hearing, the Immigration Judge (“IJ”) denied relief. Skenderi appealed the decision to the BIA, which remanded the matter for further consideration of Skenderi’s credibility and the merits of his claim. On remand, the IJ held another hearing and permitted Sken-deri to present additional evidence. In a May 16, 2007, decision, the IJ again denied Skenderi’s claims.
Skenderi appealed. On August 15, 2008, the BIA affirmed the IJ’s decision and dismissed the appeal. Because the decision was mailed to the incorrect address, the BIA re-issued the decision on October 23, 2008. This timely petition for review followed.
II. Analysis
We generally review only final decisions by the BIA. See Li v. Att’y Gen., 400 F.3d 157, 162 (3d Cir.2005); Abdulai v. Ashcroft, 239 F.3d 542, 548-49 (3d Cir.2001). However, because the BIA substantially relied upon the IJ’s adverse credibility determination, we review both the BIA’s and the IJ’s decisions with regard to the credibility determination. See Xie v. Ashcroft, 359 F.3d 239, 241-42 (3d Cir.2004). We review legal conclusions de novo, see Eze-agwuna v. Ashcroft, 325 F.3d 396, 405 (3d Cir.2003), and uphold factual determinations if they are supported “by reasonable, substantial and probative evidence on the record considered as a whole.” Guo v. Ashcroft, 386 F.3d 556, 561 (3d Cir.2004). Ultimately, this Court “must find that the evidence not only supports that conclusion [that the application should have been granted], but compels it.” INS v. Elias-Zacarias, 502 U.S. 478, 481 n. 1, 112 S.Ct. 812,117 L.Ed.2d 38 (1992).
Concluding that the IJ’s findings of fact were not clearly erroneous, the BIA affirmed the adverse credibility determination. We have recognized that an IJ is normally in the best position to make a credibility determination and is “uniquely qualified to decide whether an alien’s testimony has about it the ring of truth.” Abdulrahman v. Ashcroft, 330 F.3d 587, 597 (3d Cir.2003) (quoting Sarvia-Quintanilla v. INS, 767 F.2d 1387, 1395 (9th Cir.1985)). We review adverse credibility determinations for substantial evidence. Chen v. Ashcroft, 376 F.3d 215, 221-22 (3d Cir. *4342004). We will affirm the adverse credibility finding if it is supported by “reasonable, substantial, and probative evidence on the record considered as a whole.” Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir.2002). To reverse, the evidence of Skenderi’s credibility must be so strong “that in a civil trial he would be entitled to judgment on the credibility issue as a matter of law.” Chen, 376 F.3d at 222.
We conclude that the adverse credibility determination rests upon substantial evidence. The IJ provided numerous specific and cogent reasons for concluding that Skenderi lacked credibility, many of which go to the “heart” of his claims.1 See Berishaj v. Ashcroft, 378 F.3d 314, 323 (3d Cir.2004). Specifically, the IJ identified the following inconsistencies within Skenderi’s testimony and/or between Skenderi’s testimony, application, and prior statements 2:
(1) Skenderi submitted a newspaper article concerning his alleged political persecution. He originally testified that he obtained the article from a friend, but later testified that his family sent it to him. He also originally testified that the article was from a national Albanian newspaper, but later testified that it was from a small local paper that could not afford to register with the Library of Congress.
(2) Skenderi originally testified that when he was arrested on May 5, 2002, he was met by the prosecutor; he later testified that the prosecutor met him the following day.
(3) Skenderi originally stated in his airport interview that he was never arrested, but later testified that he was arrested multiple times for his political activities.
(4) Skenderi and his wife both stated that he left Albania on August 28, 2002. His asylum application stated that he went immediately to the United States without traveling through or staying in any other country. However, Skenderi did not did not arrive in the United States until November 3, 2002.
(5) His airport interview, credible fear interview, and hearing testimony did not consistently describe Skenderi’s history of alleged arrests, including arrests taking place in the months immediately preceding his flight from Albania.
In addition, the IJ identified the following inherent implausibilities within Skenderi’s testimony:
(1) Skenderi obtained a passport reflecting his name, signature, and photograph and was able to leave Albania without incident, despite the alleged presence of his name on a police “blacklist.”
(2) Skenderi claims he was beaten and arrested by the police in May 2002, but also testified that the police took him to the hospital for treatment after the beating and were sufficiently careless that he was able to escape by walking through a back door of the hospital.3
*435(3) Skenderi’s family was allegedly involved so deeply in DP activities that they remained in politics despite the fact that family members were assassinated in the 1990s, but he testified that his family left politics completely when he departed from Albania.
Skenderi argues that the adverse credibility determination was “based upon [the IJ’s] failure to review the transcripts, her refusal to allow the Petitioner to testify completely at his hearings and her refusal to listen to Petitioner’s credible and consistent explanation of alleged inconsistencies.” We cannot agree.
The record demonstrates that the IJ permitted Skenderi to testify at the evidentiary hearings. She also closely reviewed the transcripts of Skenderi’s testimony, as reflected by her decision’s detailed summary of Skenderi’s testimony, complete with transcript references.4 In our view, the IJ based her conclusions concerning Skenderi’s lack of credibility upon a logical, eommonsense interpretation of the facts that were presented. Cf., Butt v. Gonzales, 429 F.3d 430, 436 (3d Cir.2005).
Skenderi responds with a series of what he proposes are “credible and plausible” explanations for each of the credibility problems that the IJ identified. We find no error in the decision not to credit Sken-deri’s proposed explanations. As the BIA appropriately noted, the Supreme Court has instructed that “[wjhere there are two permissible views of the evidence, the fact-finder’s choice between them cannot be clearly erroneous.” Anderson v. City of Bessemer City, North Carolina, 470 U.S. 564, 574, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985). Skenderi has not demonstrated that the IJ’s findings of fact were clearly erroneous. His contention that there could be other plausible interpretations of the evidence is not sufficient to undermine the IJ’s adverse credibility determination.5
The BIA concluded that the IJ’s adverse credibility finding was dispositive and relied upon it as the basis to deny Skenderi’s *436appeal. “An alien’s credibility, by itself, may satisfy his burden, or doom his claim.” Dia v. Ashcroft, 353 F.3d 228, 247 (3d Cir.2003) (en banc). In this case, the adverse credibility determination dooms Skenderi’s claim. Skenderi bore the burden of supporting his asylum claim through credible testimony. Abdille v. Ashcroft, 242 F.3d 477, 482 (3d Cir.2001). He failed to meet that burden.
Finally, Skenderi claims that we must remand his case because he appealed the Id’s decision to deny withholding of removal and CAT protection, but the BIA “inexplicably” deemed those claims abandoned. We disagree. Although the notice of appeal initially indicated an intent to pursue those claims, see A.R. 331, in his brief to the BIA, Skenderi did not present any argument in support of withholding of removal or CAT protection. See A.R. 14-41. Because Skenderi only briefed his asylum claim, we find no error in the BIA’s conclusion that he abandoned the other claims. See, e.g., Chen v. Ashcroft, 376 F.3d 215, 221 (3d Cir.2004); Kost v. Ko-zakiewicz, 1 F.3d 176, 182 (3d Cir.1993).
III. Conclusion
We have considered all of Skenderi’s remaining arguments and conclude that none has merit. Accordingly, we will deny the petition for review.
. Because Skenderi filed his asylum application in 2004, the REAL ID Act, effective May 11, 2005, does not apply to his claims. See 8 U.S.C. § 1158(b)(1)(B).
. The IJ expressly noted that the inconsistencies between Skenderi's airport statement and testimony did not provide the sole basis for the adverse credibility determination. Cf., Balasubramanrim v. INS, 143 F.3d 157, 164 (3d Cir.1998) (holding that inconsistencies between hearing testimony and an airport statements are not sufficient, standing alone, to support an adverse credibility determination).
.Skenderi argues that the IJ's finding in this regard is erroneous because the IJ stated that the testimony concerning the escape from the *435hospital was internally consistent. See A.R. 229 (Hrg. Tr., 03/07/07, at 140 (“All right. That’s consistent enough.”)). However, consistent does not mean credible. An adverse credibility determination may be based on implausibility or inherent improbability. See Berishaj v. Ashcroft, 378 F.3d 314, 324 (3d Cir.2004).
. We note that some of the IJ's transcript references cite to an incorrect page number. Relying upon these apparent typographical errors, Skenderi argues rather disingenuously that the IJ did not review his testimony. For instance, Skenderi argues that although “the IJ stated 'the Respondent originally testified that the article [supporting his claim of persecution] was from a national newspaper published and distributed throughout Albania’ See [transcript] at 45 .... a simple review of page 45 of the transcripts establishes that the Petitioner never made the statement cited by the IJ." See Petitioner’s Brief at 22. However, while Skenderi did not make that statement on page 45, he did make that precise statement a few pages later. A.R. 132 (Hrg. Tr., 2/26/04, at 148) (“This is a national paper published and distributed throughout Albania.”).
. By way of example, with regard to the IJ’s finding of implausibility concerning Sken-deri’s ability to obtain a passport despite being blacklisted, Skenderi contends that "Petitioner did not obtain a valid passport. He testified that his brother obtained the document.” However, Skenderi also testified that he signed the passport documents in his own name, submitted his picture with them, and had no trouble obtaining the passport or leaving the country despite the fact that his name was allegedly on a "blacklist" and that the police knew him by name and appearance. See A.R. 52 (IJ Decision at 9), see also A.R. 221-22 (Hrg. Tr., 03/07/07, at 132-33). Thus, even considering that his brother submitted the application, substantial evidence supports the IJ’s conclusion that Skenderi’s ability to obtain a passport undermined the credibility of his claim.
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OPINION
AMBRO, Circuit Judge.
Alphonso Marvin Tindal, Jr. contends that the District Court erred during voir dire by denying his motion to strike the jury panel based on a comment made by one venireperson. We affirm Tindal’s conviction.1
I.
In June 2008, Tindal was convicted after a two-day jury trial of one count of possession of a firearm by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). He was sentenced to 180 months’ imprisonment.
During voir dire, the District Court posed the following question to the prospective jurors: “[H]ave any of you ever served as a juror in a ease involving unlawful possession of a firearm, or any other case involving firearms? Prior jury service in a case involving unlawful possession of a firearm or any other case involving firearms?” Several prospective jurors raised their hands in response.
The first venireperson to respond, Prospective Juror 31, stated that she had served previously as an alternate in a case involving a victim killed by a firearm. The Court next called on Prospective Juror 52, who stated, “I apologize. I misheard the first part of the question. I have been involved in gun cases several times. I’m a police officer. I was injured by a felon with a gun and that’s the reason why I’m a former police officer now.” This comment is the basis for Tindal’s appeal.
In response to this remark, the Court instructed Prospective Juror 52 to “talk about jury service” and inquired whether he had ever served as a juror in a case involving firearms. Prospective Juror 52 replied that he had not, and explained, “I misunderstood the question. When I raised my hand, I didn’t hear the jury part. I just heard the case about — being a case with a weapon. I apologize for that.”
Defense counsel immediately requested a sidebar and moved for a new panel based on Prospective Juror 52’s remark. Counsel argued that the statement injected a “very prejudicial fact” in front of the prospective jury panel. The District Court denied the motion, stating that it would instead consider giving a cautionary or limiting instruction. In any event, Prospective Juror 52 did not serve on Tindal’s jury.
Following this sidebar, the Court gave an instruction cautioning the venirepersons to answer the question asked and to ask the Court to repeat a question if necessary. Later in voir dire, the Court provided the following curative instruction:
At the beginning of this voir dire examination, one of the prospective jurors made reference to the use of a weapon and an injury resulting from the use of a weapon. That has absolutely nothing *438whatsoever to do with this case. Nothing at all. The statement was made, I’m certain it was inadvertent, but it was made, and now my question for you: Are there any of you who heard that statement, and who would not be able to put that statement out of their minds, if they are selected to serve as a juror in this case?
No venireperson responded yes.
At another time during voir dire, the Court asked, “If you are selected to sit on this case, are there any of you who will be unable to render a verdict solely on the evidence presented at trial under the law as I instruct you, disregarding any other ideas, notions, or beliefs about the law?” No panel member indicated he or she could not. Similarly, no venireperson indicated that he or she could not follow the Court’s instruction to treat the testimony of law enforcement officers the same way as the testimony of other witnesses.
Following the jury verdict, Tindal moved for a new trial, based in part on Prospective Juror 52’s statement during voir dire. The Court denied the motion.
II.
The Sixth Amendment right to a jury trial “guarantees to the criminally accused a fair trial by a panel of impartial, ‘indifferent’ jurors.” Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961). An impartial jury consists of “jurors who will conscientiously apply the law and find the facts.” Wainwright v. Witt, 469 U.S. 412, 423, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985).
We review a District Court’s denial of a motion to strike a jury panel for abuse of discretion. United States v. Jones, 566 F.3d 353, 358-59 (3d Cir.2009). Cf. United States v. Salamone, 800 F.2d 1216, 1226 (3d Cir.1986) (noting that the “factual determination by the trial court whether a juror can in fact serve impartially is entitled to ‘special deference’ ”) (quoting Patton v. Yount, 467 U.S. 1025, 1038, 104 S.Ct. 2885, 81 L.Ed.2d 847 (1984)). “We will determine that a district court abused its discretion when a defendant demonstrates clearly that the jurors possessed such fixed opinions that they could not judge impartially the guilt of the defendant.” Jones, 566 F.3d at 358-59 (internal quotations marks, citations, and alteration omitted).
Tindal “does not attempt to suggest that any particular juror was biased,” id. at 360-61, but instead advances only generalized speculation that Prospective Juror 52’s remark tainted the entire jury panel. Jurors are presumed to be impartial and to follow the District Court’s instructions. See Irvin, 366 U.S. at 723, 81 S.Ct. 1639 (discussing the “presumption of a prospective juror’s impartiality”); Penry v. Johnson, 532 U.S. 782, 799, 121 S.Ct. 1910, 150 L.Ed.2d 9 (2001) (noting that “[w]e generally presume that jurors follow their instructions”). These presumptions are not rebutted in this case.
The Court asked the panel members if they could render a verdict based solely on the evidence presented at trial. No veni-reperson indicated he or she could not. When the Court asked the panel members whether they could put Prospective Juror 52’s statement out of their minds, not one venireperson indicated he or she could not.
While Tindal argues the remark was especially inflammatory because his conviction turned in large part on the jury’s credibility assessment of law enforcement officials and an informant working with law enforcement, any reasonably astute prospective juror would realize that police officers can be injured by felons with firearms. The remark did not involve Tindal’s guilt or innocence or the facts of the case. The Court conducted further voir dire questioning to ensure that the panel had *439not been influenced by the comment, and found the jurors to be impartial. Tindal’s speculation to the contrary is unavailing, and we therefore hold that the District Court did not abuse its discretion. As such, we affirm.
. The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction under 28 U.S.C. § 1291.
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OPINION
PER CURIAM.
Xin Liu petitions for review of an order of the Board of Immigration Appeals (“BIA”), which dismissed his appeal from the final removal order of an Immigration Judge (“IJ”). We will deny the petition for review.
*440I.
Liu is a native and citizen of China. He came to the United States in 2005 without permission. Liu admitted his inadmissibility on that basis, but applied for asylum, withholding of removal and relief under the Convention Against Torture, claiming that he was persecuted on account of his religion and that his girlfriend was subjected to an involuntary abortion.
Liu testified as follows. He was baptized in China in 2008. He attended an underground church at a building that he used in his job as a fisherman. He and others prayed, studied the Bible, and listened to sermons. On June 27 (probably 2004, although the testimony is not clear), he and a few others were decorating the room for services when three policemen rushed in and began to destroy everything. The police arrested everyone and took them to a detention center. A.R. 74. Liu was detained for three days, and was questioned about who was in charge of the church. When Liu would not respond, the police used an electric baton to strike him and also grabbed his head and struck it against the wall until he was bloody. They interrogated him in that way every day. On the fourth day, a policeman hit him with a broken glass and made Liu sign a letter guaranteeing that he would no longer be involved in religious activities. A.R. 74-75. Liu sought medical treatment and got stitches on his left hand. A.R. 75-76. A few days after he was released, his girlfriend told him she was pregnant. They tried to register their marriage, but she was too young. Officials wanted his girlfriend to submit to an examination, but the two of them went into hiding in separate places. Liu then left for the United States. He attends church in Brooklyn or New York. A.R. 76-77.
The IJ denied the requested relief in December 2006, finding that Liu’s claim regarding his girlfriend’s abortion was not credible. The IJ also noted that under Matter of S-L-L- 24 I. & N. Dec. 1 (BIA 2006), Liu would not be eligible for asylum on the basis of his girlfriend’s abortion unless he was able to show that he had been persecuted for other resistance to the population control policy. There was no evidence that Liu resisted or was persecuted on that basis.
The IJ found that Liu’s claim that he was persecuted on the basis of his religious beliefs did not have any support in the record. The IJ noted that the State Department’s profile of asylum claims stated that underground churches were often tolerated if they remain small and unobtrusive. The IJ stated that Liu had not presented any evidence to show that his church was large, obtrusive, or otherwise notorious. The IJ also noted that Liu had not presented any witnesses that could attest to his religious beliefs. Although Liu presented a letter or certificate from China concerning his baptism, it had not been authenticated. The IJ did not give much weight to a letter Liu presented from an American church, because it was a fill-in-the-blank letter. The IJ also gave little weight to a letter from Liu’s girlfriend noting his religious beliefs. The IJ found Liu’s testimony “overall ... not to be credible.” The IJ stated that he relied in part on Liu’s demeanor, including long pauses in his answers and general unease.
On June 23, 2008, the BIA dismissed Liu’s appeal. The BIA noted that the IJ’s adverse credibility finding was based in part on Liu’s demeanor, and also that Liu displayed a lack of knowledge concerning the Christian religion. It also noted that the IJ did not find Liu’s documents to be credible. The BIA found the IJ’s adverse credibility determination was sufficiently supported by the record and was not clearly erroneous. The Board also agreed that *441Liu was not eligible for asylum on the basis of his girlfriend’s abortion.
II.
We review the final order of the BIA, but to the extent that the BIA adopts parts of the IJ’s opinion, we review the IJ’s opinion to determine whether the BIA’s decision to defer to the IJ was appropriate. Zhang v. Gonzales, 405 F.3d 150, 155 (3d Cir.2005). ‘We will uphold the [adverse credibility] findings ... to the extent that they are supported by reasonable, substantial and probative evidence on the record considered as a whole, and will reverse those findings only if there is evidence so compelling that no reasonable factfinder could conclude as the [IJ] did.” Kayembe v. Ashcroft, 334 F.3d 231, 234 (3d Cir.2003).
This case is governed by the provisions of the Real ID Act of 2005 regarding review of adverse credibility findings, as Liu’s asylum application was filed after the effective date of the Act. See Real ID Act of 2005, Pub.L. No. 109-13, Div. B, § 101, 119 Stat. 231 (May 11, 2005). The new provisions, inter alia, purport to eliminate a requirement that an adverse credibility finding based on an inaccuracy or inconsistency involve the heart of the applicant’s claim. See Lin v. Mukasey, 521 F.3d 22, 27-28 (1st Cir.2008). We have not addressed the lawfulness of the new provision in a precedential opinion. We need not consider the effects of the new provisions, however, because the problems that the IJ noted here go to the heart of Liu’s claims.
The IJ based his adverse credibility finding at least in part on Liu’s inability to answer questions regarding Christianity, such as which “sect” of Christianity he belonged to, and the name of the first book of the Bible. The U.S. State Department’s June 2004 Profile of Asylum Claims and Country Conditions for China (“Profile”) cautions that “some committed Chinese Christians may have difficulty responding” to questions that “most practicing Christians in the United States would be able to answer” because of a lack of access to religious training and literature. A.R. 141. However, the IJ also “relied on [Liu’s] demeanor” in making the adverse credibility finding, noting “long pauses that attended many of his answers and the general unease with which he appeared to be testifying here today.” A.R. 32. We have noted that an immigration judge alone is in a position to observe an alien’s tone and demeanor and is uniquely qualified to decide whether an alien’s testimony has about it the ring of truth.” Lin v. Att’y Gen., 543 F.3d 114, 128 (3d Cir.2008) (internal quotations and citations omitted). The IJ also noted that Liu’s claim that his small underground church was harassed was not entirely consistent with the Profile’s statement that underground churches were often tolerated if they remain small and unobtrusive. When we consider Liu’s apparent lack of knowledge about Christianity, coupled with the IJ’s comments regarding Liu’s demeanor during testimony and the inconsistency between Liu’s claim and the evidence in the Profile, we find that the record does not compel us to reverse the IJ’s adverse credibility finding. The BIA properly found that the IJ’s adverse credibility finding was not clearly erroneous, and thus properly denied Liu asylum.1
We further agree with the BIA that even assuming credibility, Liu was ineligible for asylum based on his girlfriend’s abortion, as he had not established *442that he was persecuted for his own resistance to China’s population control program. Chen v. Ashcroft, 381 F.3d 221, 229 (3d Cir.2004).2
Because Liu failed to meet the burden of proof required for asylum, we agree with the BIA that he necessarily failed to meet the higher burden of proof for statutory withholding of removal. We further agree that he presented no evidence that he is likely to be tortured in the future. We will deny the petition for review.
. Because there is substantial evidence supporting the adverse credibility finding, we need not reach Liu's claim that the IJ required corroboration that was not reasonably available and that the IJ should have given more weight to the documents he presented.
. Liu failed to raise this issue in his brief to the BIA, but the BIA's consideration of the issue is sufficient to provide us with jurisdiction over that issue. Lin v. Att'y Gen., 543 F.3d 114, 124 (3d Cir.2008).
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OPINION
PER CURIAM.
Jianqing Jiang petitions for review of an order of the Board of Immigration Appeals (BIA). For the reasons below, we will deny the petition for review.
Jianqing Jiang, a native of China, entered the United States in April 2002. She applied for asylum, withholding of removal, and relief under the Convention against Torture. Jiang argued that she would be persecuted under the family planning policy if she were returned to China. Jiang was charged as removable for entering without a valid entry document. She conceded removability. After a hearing, the IJ denied relief, granted voluntary departure, and ordered Jiang removed to China. The BIA affirmed without an opinion. Jiang then filed a petition for review, which this Court denied. See C.A. No. 06-1169.
On December 20, 2007, Jiang filed a motion to reopen with the BIA. She argued that she had given birth to a second child in the United States and would be subject to sterilization if returned to China. The BIA denied the motion; it concluded that the birth of her second child was not evidence of changed country conditions in China. The BIA further determined that the evidence she submitted did not establish changed country conditions in China to support a claim of future persecution. Jiang filed a timely petition for review.
We have jurisdiction pursuant to 8 U.S.C. § 1252. We review the denial of a motion to reopen for an abuse of discretion. Filja v. Gonzales, 447 F.3d 241, 251 (3d Cir.2006). Under this standard, we may reverse the BIA’s decision only if it is “arbitrary, irrational, or contrary to law.” Sevoian v. Ashcroft, 290 F.3d 166, 174 (3d Cir.2002). An alien generally may file only one motion to reopen, and must file the motion with the BIA “no later than 90 days after the date on which the final administrative decision was rendered.” 8 C.F.R. § 1003.2(c)(2). The time and number requirements are waived for motions that rely on evidence of changed circumstances arising in the country of nationality. Id. We must uphold the BIA’s factual determinations if they are supported by substantial evidence. Liu v. Attorney General, 555 F.3d 145, 148 (3d Cir.2009). Under the substantial evidence standard, we can reject the BIA’s findings only if “any reasonable adjudicator would be compelled to conclude to the contrary.” Id. (quoting INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992)).
The BIA cited to prior decisions which discussed much of the background evidence Jiang submitted. See In re S-Y-G-, 24 I. & N. Dec. 247 (BIA 2007); Matter of J-W-S-, 24 I. & N. Dec. 185, 191 (BIA 2007). In Matter of J-W-S-, the BIA concluded that China did not have a policy of requiring the forced sterilization of a parent who returns with a second child born outside of China. In In re S-Y-G-, the BIA determined that the petitioner had not shown changed country conditions. Jiang argues that these cases contradict each other and should be given little weight. However, she does not discuss the rulings of the BIA in those cases but *449rather cites only to the BIA’s quotations of State Department findings.
Jiang argues that she has submitted evidence that the BIA did not consider in those prior decisions. However, the evidence she cites does not compel a finding that a Chinese citizen returning with a second child who is a U.S. citizen would be forcibly sterilized. Jiang points out that the Court of Appeals for the Second Circuit has admonished the BIA for ignoring the same evidence of forced sterilization that she has submitted-two administrative decisions and a Q & A handbook. Shou Yung Guo v. Gonzales, 463 F.3d 109, 115 (2d Cir.2006). Here, however, the BIA cited to its opinion in In re S-Y-G which addressed that same evidence on remand from the Second Circuit.
Jiang contends that the BIA did not accurately describe the findings of the 2007 State Department Profile on China in Matter of J-W-S-. Jiang did not submit the 2007 Profile with her motion to reopen. Thus, it is not part of the administrative record. Our review is limited to the record before the BIA. 8 U.S.C. § 1252(b)(4)(A)(“[T]he court of appeals shall decide the petition only on the administrative record on which the order of removal is based.”). Moreover, the Profile does not support her contention that children born in the United States to Chinese citizens will necessarily be counted for the purposes of the family planning policy. It states that the Family Planning Commission of Fujian Province, where Jiang is from, does not count children born abroad under the family planning policy if they are not registered as permanent residents of China.
Jiang asserts that the Villagers’ Committee Letter she has submitted, along with her background information, establishes changed country conditions. In the letter, the Villagers’ Committee informs Jiang that if she returns to China and registers her children in the household registration, they will be considered Chinese citizens and she will have to comply with the family planning laws. The Committee stated that Chinese citizens with two children are targets for sterilization. Jiang points to an earlier BIA decision which granted a motion to reopen based on a similar letter. Here, however, the BIA rejected the letter because it did not state who had drafted it.
Moreover, the BIA noted that the letter was undermined by an April 2007 “Report of Investigation” Jiang submitted. The report stated that village committees are not authorized to make decisions on family planning issues and such notices should be considered invalid. Jiang argues that China’s family planning policy is implemented by local village committees but cites only to the BIA’s decision in In re J-W-S-, which quotes the 2007 Profile’s findings that implementation of the birth control policy is the responsibility of “local officials.” This single sentence, from a document outside the record, does not compel a finding that the village notice Jiang submitted should be considered valid, especially in light of evidence in the record discounting such notices.
Jiang argues that sterilizations can be forced by means other than physical coercion, including economic persecution. While “deliberate imposition of severe economic disadvantage which threatens a petitioner’s life or freedom may constitute persecution,” Zhen Hua Li v. Attorney General, 400 F.3d 157, 168 (3d Cir.2005), there is no evidence that the potential financial penalties meet this standard. Jiang cites to the BIA’s citation in In re JW-S — to State Department findings that such sanctions left women with no choice but to be sterilized. However, the BIA in In re J-W-S — concluded that the alien failed to provide evidence that the econom*450ic sanctions would rise to the level of persecution.
Jiang has not shown that the record would compel any reasonable adjudicator to conclude that she had shown that she was prima facie eligible for asylum based on changed country conditions. Moreover, Jiang’s argument that she is entitled to file a successive asylum application is foreclosed by our decision in Liu v. Attorney General, 555 F.3d 145, 150-51 (3d Cir.2009).
For the above reasons, we will deny the petition for review. The government’s motion to dismiss is denied.
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OPINION OF THE COURT
JORDAN, Circuit Judge.
Charles Lawson appeals from a March 11, 2009 judgment of the United States District Court for the Middle District of Pennsylvania sentencing him to 151 months’ imprisonment for distribution and possession with intent to distribute cocaine base in violation of 21 U.S.C. § 841. For the following reasons, we will affirm.
I. Background
On May 29, 2008, Lawson sold $500 worth of crack cocaine to a confidential informant who was working with the Harrisburg, Pennsylvania police. Based on that transaction, Lawson eventually pled guilty to one count of distribution and possession with intent to distribute cocaine base in violation of 21 U.S.C. § 841. A presentence report (“PSR”) was issued on January 29, 2009, and, shortly thereafter, the Government filed a motion pursuant to U.S.S.G. § 5K1.1 for a downward departure in Lawson’s offense level because of his substantial assistance to law enforcement.
Lawson lodged an objection to the PSR, and asked that the Court grant him a downward variance in light of the 80:1 ratio that currently exists between sentencing ranges for powder versus crack cocaine.1
At a sentencing hearing on March 11, 2009, the District Court adopted the findings and Guidelines calculations contained in the PSR, and reduced Lawson’s offense level pursuant to the government’s § 5K1.1 motion. The District Court then discussed the sentencing factors enumerated in 18 U.S.C. § 3553(a) and declined to vary from the Guidelines, saying,
I recognize that I have discretion to adopt an appropriate ratio in lieu of that provided in the sentencing guidelines. I decline to do so. The sentencing commission has amended the guidelines to reduce the ratio ... and I believe it, that is the amended ratio between powder [ ] cocaine, and crack cocaine, to be the appropriate ratio under the circum*452stances. In short, I concur with the policy judgment reflected in the amended ratio.
(1 App. at 26-27.)
With the downward departure, Lawson’s offense level was twenty-nine and his criminal history category was VI, resulting in a Guidelines range of 151 to 188 months’ imprisonment. The Court sentenced Lawson to a 151 month term of imprisonment.
Lawson filed a timely appeal, arguing that the sentence imposed by the District Court is unreasonable because the Court did not adequately consider the effect of the craek/powder cocaine ratio on the § 3553(a) factors, and failed to depart below the Guidelines range in recognition of the disparity caused by that ratio.
II. Discussion2
We review a criminal sentence for reasonableness, Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007), which generally involves two levels of inquiry. We begin by determining whether the District Court committed any “significant procedural error, such as ... failing to consider the § 3553(a) factors.” Id. at 51, 128 S.Ct. 586. Upon satisfying ourselves that a sentence is “procedurally sound,” we then ask whether the sentence is substantively reasonable. Id. “The abuse-of-discretion standard applies to both our procedural and substantive reasonableness inquiries.” United States v. Tomko, 562 F.3d 558, 567 (3d Cir.2009).
A. Procedural Reasonableness
Lawson complains that his sentence is procedurally unreasonable because the District Court failed to adequately consider three of the § 3553(a) factors. First, Lawson argues that the court failed to adequately consider objectives identified in § 3553(a)(2), namely, the need for his sentence to reflect the seriousness of his offense, to promote his respect for the law, and to provide just punishment. Had the Court considered those objectives, says Lawson, his sentence would have been “similar to one that would be given in a cocaine powder case.” (Appellant’s Op. Br. at 19.) Second, Lawson argues that the court ignored the need to avoid unwarranted sentence disparities pursuant to § 3553(a)(6) because “[i]t is fundamentally unfair for one defendant to get a sentence much greater than another simply because he was selling the same substance in a different form.” (Appellant’s Op. Br. at 19.) He notes that at least one district court has used a 1:1 ratio rather than adhere to the Guidelines ratio when sentencing a defendant convicted of a crack cocaine crime.3 Finally, Lawson asserts that the District Court did not adequately consider pertinent policy statements as required by § 3553(a)(5), because there are indications that President Obama’s administration is working to eliminate the crack/powder cocaine disparity, so since “change is coming, ... that should be applied in this case.” (Id. at 20.)
Our review of the record reveals that, contrary to Lawson’s contentions, the District Court did engage in a “meaningful consideration” of the § 3553(a) factors. At the sentencing hearing, the Court explained in detail the reasoning upon which it based Lawson’s sentence. While the Court did not specifically mention each of the factors enumerated in § 3553(a), it explicitly considered several of those factors and stated that the sentence “reflects [the] court’s full consideration of all [the] factors *453relevant to the sentencing determination.” (1 App. at 24.) As we have said before, “[t]here are no magic words that a district judge must invoke when sentencing....” United States v. Cooper, 437 F.3d 324, 332 (3d Cir.2006), abrogation on other grounds recognized by United States v. Wells, 279 Fed.Appx. 100 (3d Cir.2008). What was said here was sufficient. See United States v. Lessner, 498 F.3d 185, 203 (3d Cir.2007) (“A sentencing court need not make findings as to each factor if the record otherwise makes clear that the court took the factors into account.”). Because Lawson’s sentence is procedurally sound, we turn to the question of substantive reasonableness
B. Substantive Reasonableness
Lawson argues that his sentence is substantively unreasonable because the District Court failed to impose a below-Guidelines sentence based on the crack/powder cocaine disparity.
A sentence is substantively unreasonable where “no reasonable sentencing court would have imposed the same sentence on that particular defendant for the reasons the district court provided.” Tomko, 562 F.3d at 568; see also Gall, 552 U.S. at 51, 128 S.Ct. 586 (explaining that, in reviewing a sentence for substantive reasonableness, “[t]he fact that the appellate court might reasonably have concluded that a different sentence was appropriate is insufficient to justify a reversal of the district court”).
The District Court recognized that it had “discretion to adopt an appropriate ratio in lieu of that provided in the sentencing guidelines,” but it declined to do so because, in its opinion, “the amended ratio between powder, cocaine, and crack cocaine ... [is] the appropriate ratio under the circumstances.” (1 App. at 26-27.) The Court thus stated that, in the particular case before it, it “concurr[ed] with the policy judgment reflected in the amended ratio.” (Id. at 27.) Although a downward variance was possible under Spears,4 the District Court was certainly not obligated to vary downward. The fact that it chose not to does not mean that Lawson’s sentence is substantively unreasonable, and indeed it is not unreasonable.
III. Conclusion
For the foregoing reasons, we will affirm the sentence imposed by the District Court.
. Until recently, the Sentencing Guidelines included a 100:1 ratio, adopted from the Anti-Drug Abuse Act of 1986, “that treated every gram of crack cocaine as the equivalent of 100 grams of powder cocaine.” United States v. Arrelucea-Zamudio, 581 F.3d 142, 147 (3d Cir.2009) (quoting Kimbrough v. United States, 552 U.S. 85, 96, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007)). However, in 2007, the Sentencing Commission amended the Guidelines, “reduc[ing] the base offense level associated with each quantity of crack by two levels.” Kimbrough, 552 U.S. at 99-100, 128 S.Ct. 558. We have recognized that “a district court may deviate from the Guidelines range for crack cocaine offenses ... if it concludes that the disparity between ranges for crack and powder cocaine results in a sentence 'greater than necessary’ to achieve the sentencing objectives of § 3553(a).” United States v. Arrelucea-Zamudio, 581 F.3d 142, 147-48 (3d Cir.2009) (citing Kimbrough, 552 U.S. at 91, 128 S.Ct. 558). Earlier this year, the Supreme Court explained that district courts have the "authority to vary from the crack cocaine Guidelines based on policy disagreement with them, and not simply based on an individualized determination that they yield an excessive sentence in a particular case.” Spears v. United States, - U.S. -, 129 S.Ct. 840, 843, 172 L.Ed.2d 596 (2009) (original emphasis).
In his objection, Lawson urged the District Court to impose a lower sentence because the amended ratio continues to "promulgate unwarranted disparities.” (2 App. at 10.) In other words, Lawson apparently hoped that the District Court, based on a policy disagreement with the amended Guidelines, would impose a below-Guidelines sentence because his crime involved crack cocaine, rather than powder cocaine.
. The District Court had subject matter jurisdiction under 18 U.S.C. § 3231. We have jurisdiction to review Lawson's sentence pursuant to 28 U.S.C. § 1291.
. Specifically, Lawson cites to United States v. Gully, 619 F.Supp.2d 633 (N.D.Iowa 2009). (Appellant's Opening Brief at 18.)
. See supra, note 1.
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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/8475826/
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OPINION OF THE COURT
NYGAARD, Circuit Judge.
Because our opinion is wholly without precedential value, and because the parties and the District Court are familiar with its operative facts, we offer only an abbreviated recitation to explain why we will affirm the order of the District Court.
Lloyd’s of London issued a commercial general liability policy to Angela Rawlins d/b/a Bunker Hill Hotel. The policy contained general liability provisions that covered bodily injuries or property damage caused by an occurrence within the coverage territory. Among the endorsements modifying the policy was one that stated that the insurance policy does not apply to assault and battery, regardless of intent, or any act or failure to prevent or suppress such assault and battery or physical altercation “caused by the insured, an employee, a patron or any other person.” The policy also excluded damages arising out of “allegations of ... any act, error or omission relating to such assault and/or battery or physical altercation.”
Lloyd’s filed a declaratory judgment action, and the instant summary judgment motion, to establish that it did not have a duty to defend the insured in actions brought by a representative of Sherrit James, deceased, and Daren Stevens who had rented a room at the hotel. Our review is plenary. Torretti v. Main Line Hospitals, Inc., 580 F.3d 168, 172 (3d Cir.2009).
The underlying suits arose from the murder of James and the gunshot wounds sustained by Stevens when they were in their room at the hotel. The murder and wounds were at the hand Joel Dowdye, a former police detective, who was previous*455ly in a relationship with James. The complaints allege negligence against the hotel, its employees and agents. Specifically, the complaints assert that the hotel negligently allowed Dowdye into the hotel, told him the room in which Stevens and James could be found, and failed to warn Stevens and James that Dowdye was on the premises.
The District Court determined that the policy language expressly excludes the liability asserted in the underlying case against the Bunker Hill Hotel. As a result, the District Court ruled in favor of Lloyd’s, establishing that it does not have a duty to defend the insured against the liability asserted by Stevens and the representative of James. After a thorough review of the record, we agree with the District Court’s ruling.
Therefore, for essentially the same reasons expressed by the District Court we will affirm the order.
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01-04-2023
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11-05-2022
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OPINION OF THE COURT
VAN ANTWERPEN, Circuit Judge.
Appellant Edward Basley appeals three of his convictions arguing the evidence presented was insufficient to support the verdicts. He further appeals the District Court’s determination that his sentence qualified for an enhancement because it found he had a prior conviction, and Bas-ley contends such a judge-made finding violates the Sixth Amendment. Additionally, he appeals the District Court’s sentence as unreasonable. For the following reasons, this Court will affirm the District Court’s judgment and sentence.
I.
Because we write solely for the parties, we will only address those facts necessary to our opinion.
Darren Cameron began cooperating with the government after police discovered a significant amount of drugs at his residence in September 2004. He told the officers he had obtained nine ounces of cocaine from Basley, for which he still owed $6,250, and the rest from Robert Wright, for which he owed $11,000. A Drug Enforcement Agency (“DEA”) task force provided Cameron with funds to repay Wright and Basley. Between 2004 and 2005, Cameron met with Wright thirteen times and Basley once to repay his debts. During each meeting Cameron wore a recording device.
In April 2005, Cameron recorded a conversation during which Basley offered to sell him cocaine, but Cameron declined. On May 2, 2005, Cameron called Wright to purchase cocaine, but Wright was unable to satisfy the request. Moments later, Basley called Cameron offering to sell him the requested amount. Later that day, Cameron met Basley who fronted him cocaine in exchange for a promise to pay him $3,000. Subsequently, Cameron wore a recording device while meeting Basley twice to repay him for the fronted cocaine. In the meetings, Basley discussed issues related to drug distribution and told Cameron a story about when police impounded his car containing a .45 caliber gun (known as a Glock), cocaine base, and marijuana. *457When Basley retrieved his car, his contraband was still inside.
On July 8, 2005, Basley called Cameron, who was in the presence of a DEA task force officer, to inform him he had cocaine.1 At the officer’s direction, Cameron went to meet Basley on Clapier Street in Philadelphia, Pennsylvania. Basley invited Cameron into his Chevy Avalanche and showed him five kilos of cocaine, wrapped in tan tape, inside a black duffle bag. Bas-ley told Cameron that he planned to give two kilos to his brother. Subsequently, Cameron reported what transpired and the DEA task force set up surveillance at two locations: (1) Clapier Street and Wayne Avenue, and (2) on 5343 Darrah Street in Philadelphia, where Basley had been seen during a previous surveillance.
Officer Sarris surveyed 5343 Darrah Street. At around 3:00 p.m. on July 8, 2005, he saw Basley and another male arrive in an Avalanche. Basley was holding a black duffle bag in his right hand. Basley used a key to open the door to 5343 Darrah Street, and then, still holding the duffle bag, he and the other male went inside. Basley was inside the house for a little over two hours, during which a woman and three men arrived separately. All four knocked to gain entrance. Officer Sarris testified that he saw Basley leave, accompanied by two men. Officer Sarris admitted that no attempt was made to determine the identity of the other subjects. Then, several officers entered the premises to execute a search warrant.
The house at 5343 Darrah Street has a basement, a main floor with a combination living room/dining room area and a kitchen, and a second floor with two bedrooms. Officer Rehr searched the basement and recovered a black duffle bag, which Cameron and Officer Sarris identified as Bas-ley’s. Inside there was one kilo of cocaine wrapped in tan tape, and one large Ziploc bag which contained five smaller bags, each containing 125 grams of cocaine.2 An officer recovered three empty tan wrappers from the basement garbage can and Cameron identified photos of those wrappers as the same wrapping he saw on the kilos in the black duffle bag.
Office Sarris searched the stairwell area leading to the basement. Just inside the doorway of the stairwell he found a box of baking power, two digital gram scales with drug residue, a learner’s permit for Basley,3 and other drug paraphernalia. Another officer found a bag near the staircase containing various drug paraphernalia, as well as two smaller bags of what was later determined to be 107 grams of cocaine base (crack).4
Office Sarris also searched the living room/dining room area and found various documents and photographs of Basley’s, including, among other things: (1) a photograph of Basley and Wright, (2) a letter addressed to Basley with tally work on the back, (3) a receipt with Basley’s name on it, (4) an envelope addressed to Basley, (5) a personal card addressed to Basley, (6) an auto-insurance policy for Basley addressed *458to 5343 Darrah Street, and (7) an envelope from the Pennsylvania Department of Transportation addressed to Edward Bas-ley. A DEA officer found a nine-millimeter Beretta with a round in the chamber and obliterated serial numbers under baby clothes in a red wicker basket. The basket was on the floor in a seating area near the kitchen table. There were no fingerprints on the gun or magazine. Senior Narcotics Agent John Cohen testified, as an expert witness, that it was consistent with his experience that drug dealers kept loaded firearms in their homes to protect themselves and their drug enterprise. He conceded a “sloppy” person might also keep a loaded gun in the house.
Officer Arnold searched the upstairs bedrooms. In the front bedroom, Officer Arnold found items on a dresser including: (1) a Pennsylvania identification card with Basley’s name and address on it, (2) two men’s watches, (3) a chain with a large diamond-encrusted “B” on it, (4) a Com-cast bill for 5343 Darrah Street in Basley’s name, (5) a Visa card in Basley’s name, (6) Basley’s social security card, (7) an application for a Visa card in Basley’s name, (8) a letter regarding a Mastercard addressed to Basley at Clapier Street, and (9) a handwritten note addressed to “B.” In a dresser drawer, the officer found a loaded Glock Model 3045 semi-automatic handgun and an extended magazine. Men’s T-shirts were in the dresser drawer with the gun. No fingerprints were recovered from the Glock or the magazine.5
Basley was arrested on November 7, 2004 when police officers pulled him over in the Avalanche. Officers conducted an inventory search and discovered a stolen, loaded Taurus pistol6 and a small quantity of narcotics in the cup holder.
On February 12, 2007, Basley and seven co-defendants went to trial facing a twenty-one count Superseding Indictment for drug and gun charges.7 Basley was named in seven counts: Counts Two and Four charged Basley with cocaine distribution in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C); Count Five charged Basley with possession with intent to distribute cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A); Count Six charged Basley with possession with intent to distribute cocaine in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B); Count Seven charged Basley with possession of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1); and Counts Eight and Twenty charged Basley with being a convicted felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1).
Before the jury returned its verdict, Basley made an oral motion for judgment of acquittal as to Count Seven, which was denied. The jury then convicted Basley as to Counts Four, Five, Six, Seven, Eight and Twenty, but acquitted him with respect to Count Two. On March 2, 2007, Basley filed a motion for acquittal pursuant to Federal Rule of Criminal Procedure 29(c). Although Basley reserved the right to supplement this motion, he never did, and it was denied.
The District Court sentenced Basley to 300 months’ incarceration, followed by ten years of supervised release, a $3,000 fine, and a $600 assessment. Basley filed a timely notice of appeal.
*459II.
The District Court had subject matter jurisdiction over this matter pursuant to 18 U.S.C. § 3231. This Court has appellate jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742.
This Court reviews de novo grants or denials of Rule 29 motions to acquit for insufficient evidence. United States v. Bobb, 471 F.3d 491, 494 (3d Cir.2006). If a defendant challenges the sufficiency of the evidence, but did not file a timely Rule 29 motion, then this Court reviews the sufficiency of the evidence for plain error. United States v. Powell, 113 F.3d 464, 466-67 (3d Cir.1997).
Basley moved for judgment of acquittal under Rule 29 twice: (1) on Count Seven on February 16, 2007, and (2) on all the convictions on March 2, 2007. The government contends that because the March 2, 2007 motion was particularly vague, merely stating that “the evidence presented by the government during its case in chief was insufficient to sustain the convictions,” it is insufficient to preserve the challenges raised.
Basley’s Rule 29 motion is sufficient to preserve these issues for review. Rule 29 only requires that a defendant “move for a judgment of acquittal, or renew such a motion, within 7 days after a guilty verdict.” Fed.R.Crim.P. 29(c)(1).8 It does not indicate that the defendant’s motion must be specific. Moreover, as this Court has only applied the plain error standard when a defendant failed to file a Rule 29 motion completely, to apply it when the motion is vague would be a marked expansion. See Powell, 113 F.3d at 467 n. 5.9 Basley’s motion, though vague, is sufficient to put the government on notice that he contests the sufficiency of the evidence. Therefore, this Court will review Basley’s challenges to the sufficiency of the evidence de novo, because he filed a timely Rule 29 motion. Fed.R.Crim.P. 29(c)(1).
When reviewing a jury verdict for sufficiency of evidence, this Court reviews the evidence in the light most favorable to the government and must sustain the verdict if any trier of fact could have found the essential elements of the crime beyond a reasonable doubt. United States v. Cunningham, 517 F.3d 175, 177 (3d Cir.2008).
This Court reviews sentences for abuse of discretion by examining the procedural and substantive reasonableness of the sentence imposed. United States v. Tomko, 562 F.3d 558, 567-68 (3d Cir.2009) (en banc). This Court exercises plenary review over constitutional challenges to a defendant’s sentence. United States v. Walker, 473 F.3d 71, 75 (3d Cir.2007).
III.
Basley challenges the sufficiency of the evidence for three of his convictions: (1) for Count Five, possession with intent to distribute cocaine base, commonly known as crack; (2) for Count Seven, for knowing possession of a firearm in furtherance of a drug trafficking crime; and (3) Count Eight, for knowing possession of a firearm *460as a felon. We will address each conviction in turn.
A.
Basley contends the government’s evidence was insufficient to support his conviction for possession with intent to distribute cocaine base in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A). This conviction carries a mandatory minimum of ten years, which is enhanced to twenty years if the convicted felon has a prior felony conviction. 21 U.S.C. §§ 841 (b)(l)(A)(viii). “A conviction for possession with intent to distribute drugs requires that the defendant knowingly and intentionally possessed the drugs with the intent to distribute them.” United States v. Iafelice, 978 F.2d 92, 95 (3d Cir.1992). The government admits that there is no direct evidence Basley actually possessed the cocaine base, but argues there is overwhelming evidence of constructive possession.
“Constructive possession exists if an individual knowingly has both the power and the intention at a given time to exercise dominion or control over a thing, either directly or through another person or persons. Constructive possession necessarily requires both dominion and control over an object and knowledge of that object’s existence.”
Cunningham, 517 F.3d at 178 (citing Iafel-ice, 978 F.2d at 96). Notably, dominion and control are not established by “mere proximity to the drug, or mere presence on the property where it is located.” United States v. Jenkins, 90 F.3d 814, 818 (3d Cir.1996) (quoting United States v. Brown, 3 F.3d 673, 680 (3d Cir.1993)).
Whether a defendant had dominion and control over drugs found in a house hinges in part on his relationship to that property. If a defendant is an owner or lessee of a premises where contraband is found, that fact “logically tend[s] to support a conclusion that [they] had constructive possession” of any contraband on the premises. United States v. Introcaso, 506 F.3d 260, 271 (3d Cir.2007); Jackson v. Byrd, 105 F.3d 145, 150 (3d Cir.1997). But, this Court previously found that evidence a person had a key to and resided in a house where drugs were recovered, but was not on the lease, was insufficient to support a finding that she had constructive possession of the contraband in the house. Brown, 3 F.3d at 680-82. Moreover, we noted her conduct was “consistent with that of someone with access to or residing at the Brown residence, but with no control over the drugs ... therein.” Id. at 682.
Basley argues the government’s evidence is insufficient to support his conviction under Brown because it only establishes that he had contact with 5343 Darrah Street prior to the discovery of drugs therein. Indeed, Basley is neither a lessee nor owner of the 5343 Darrah Street property. Although the government offered extensive evidence of Bas-ley’s contacts with the 5343 Darrah Street property, that evidence is insufficient on its own to establish that he had dominion and control over the contraband found inside the property. See Brown, 3 F.3d at 684. The government, however, also offered other circumstantial evidence to support its constructive possession claim, including: (1) recorded conversations indicating that Basley was engaged in the drug trade, (2) physical and testimonial evidence that Basley carried a large quantity of cocaine, from which cocaine base is created, into the home the same day the cocaine base was recovered, and (3) evidence of the presence of tools used to transform cocaine into cocaine base in close proximity to the cocaine and the cocaine base. This evidence distinguishes Basley from the Brown defendant because evidence that Basley was in the drug trade and *461brought cocaine into 5343 Darrah Street is inconsistent with someone who has “access to or [is] residing at the ... residence, but [who does not have] control over the drugs ... therein.” Id. at 682. Therefore, considering all the circumstantial evidence in a light most favorable to the government, we conclude a reasonable jury could infer that Basley had dominion and control over the cocaine base found on the premises. Cunningham, 517 F.3d at 177.
Nevertheless, to make out a conviction for possession with intent to distribute drugs, the government must establish that Basley intended to distribute the drugs he constructively possessed. Iafelice, 978 F.2d at 95. The government offered extensive evidence through recorded conversations and Cameron’s testimony that Bas-ley was engaged in the drug trade, though none of that evidence explicitly referenced him distributing cocaine base. Additionally, the officers recovered materials used in drug distribution, including a box of clear vials and clear plastic bags, near both the black duffle bag and the cocaine base. Based on evidence that Basley was distributing drugs, had access to distribution tools, and had constructive possession of a substantial quantity of cocaine base, a reasonable jury could infer that Basley intended to distribute the cocaine base. Therefore, we find that there is sufficient evidence to support Easley’s conviction for Count Five of the indictment.
B.
Basley challenges the sufficiency of the evidence supporting his conviction for knowingly possessing a firearm in furtherance of a drug trafficking crime. Title 18 U.S.C. § 924(c)(1)(A) imposes a mandatory consecutive sentence of at least five years for any person who, in furtherance of a drug trafficking crime, “possesses a firearm.” 18 U.S.C. § 924(c). To support a conviction under this statute the government had to prove beyond a reasonable doubt that Basley (1) is guilty of an underlying drug crime, (2) knowingly possessed a firearm, and (3) knowingly possessed a firearm in furtherance of the drug trafficking crime.
Having already convicted Basley of distributing cocaine, which he does not appeal, a reasonable jury could conclude Bas-ley was guilty of an underlying drug crime. This appeal hinges on whether there was sufficient evidence that Basley knowingly possessed the Beretta semi-automatic handgun, found in a wicker basket in the downstairs seating area, or the Glock semi-automatic weapon, found in a dresser drawer in the front bedroom, to further his drug trafficking activities.
The government did not present any direct evidence tying Basley to these guns or indicating Basley knew that these guns were in the house. Therefore, the government needed to establish that Basley constructively possessed these weapons. See Cunningham, 517 F.3d at 178. The government’s extensive circumstantial evidence that Basley had control over the residence is insufficient to support an inference that he had dominion and control over the contraband therein. Brown, 3 F.3d at 680-81. However, that evidence, paired with the recorded conversation during which Basley told Cameron he owned a Glock and the fact that the Glock was found in a drawer, with men’s clothing, surrounded by Basley’s intimate personal effects, is strong circumstantial evidence that Basley knowingly possessed that gun. Thus, considering the evidence in a light favoring the government, a reasonable jury could infer that Basley knowingly possessed the Glock.
The evidence relating to the Beretta in the wicker basket is more tenuous. There was no direct evidence the Beretta belonged to Basley, and the gun was not *462near his personal effects. The government’s primary circumstantial evidence suggesting that Basley knowingly possessed the Beretta is comprised of evidence that Basley had some control over the residence and the testimony of a senior narcotics agent who noted that firearms are integral to the drug trade. However, the agent’s testimony that guns are integral to the drug trade does not speak to whether Basley knowingly possessed this gun, and evidence that a person has control over a residence is insufficient to support an inference that they had dominion and control over the contraband therein. Brorni, 3 F.3d at 680-81. Therefore, a reasonable jury could not infer that Basley knowingly possessed the Beretta. This is particularly true because four people entered 5343 Darrah Street on July 8, 2005 prior to the search, any of whom could have hidden the gun. Accordingly, we will limit our analysis to the Glock.
To support a conviction for possession of a firearm in furtherance of a drug trafficking crime, the totality of the “evidence must demonstrate that possession of the firearm advanced or helped forward a drug trafficking crime.” United States v. Sparrow, 371 F.3d 851, 853 (3d Cir.2004). This Court considers the following nonexclusive factors to determine whether a gun was possessed “in furtherance”:
“the type of drug activity that is being conducted, accessibility of the firearm, the type of the weapon, whether the weapon is stolen, the status of the possession (legitimate or illegal), whether the gun is loaded, proximity to drugs or drug profits, and the time and circumstances under which the gun is found.”
Id. As Basley points out, in circumstances where guns are found in the immediate vicinity of drugs or drug paraphernalia, this Court has found that proximity alone is sufficient evidence for a rational juror to conclude the gun was used to further drug trafficking. United States v. Iglesias, 535 F.3d 150, 157 (3d Cir.2008). But, as the Glock was on the second floor, it was not proximate to the drugs found in the basement. The Glock, however, implicates other listed factors. The Glock is a semiautomatic weapon, which'is a type of weapon rarely used primarily for self-defense. It was loaded, indicating it was ready to fire. Additionally, it had been reported stolen. Although none of those factors standing alone directly indicate the Glock was used to further drug trafficking, together they support the inference that the gun was used to further drug trafficking. Thus, a reasonable jury could rely on these factors to conclude that the Glock was used to further Basle/s drug trafficking activities. Accordingly we will affirm Bas-ley’s conviction based on Count Seven for possessing a firearm in furtherance of a drug trafficking crime.
Because we conclude a reasonable jury could infer that Basley knowingly possessed the Glock, we will also affirm Bas-ley’s conviction based on Count Eight, that he knowingly possessed a firearm as a felon.
IV.
The District Court sentenced Basley to a statutory mandatory minimum term of 300 months’ imprisonment, followed by ten years of supervised release, for his conviction under a number of drug and gun offenses. Easley’s advisory guideline range for his convicted offenses is 168-210 months under the Sentencing Guidelines. Normally, a conviction for possession of cocaine base with an intent to distribute (Count Five) carries a mandatory minimum sentence of ten years. 21 U.S.C. §§ 841(b)(l)(A)(viii). Because Basley had a prior felony drug conviction, however, this mandatory minimum is enhanced to twenty years. Id. His conviction under *463Count Seven, possession of a firearm in furtherance of a drug trafficking crime, carries a statutory minimum of five years’ imprisonment to run consecutively with the twenty-year term. 18 U.S.C. § 924(c)(l)(A)(i). As a result, Basley has a mandatory minimum sentence of 300 months. U.S. Sentencing Guidelines Manual § 5Gl.l(a). Basley challenges his sentence as invalid under the Sixth Amendment and unreasonable. We will address Basley’s constitutional argument first.
A.
Basley contends that his sentence violates his Sixth Amendment rights because (1) the District Court imposed an enhanced mandatory minimum sentence based on the finding, made by a judge rather than a jury, that Basley had a prior drug conviction, and (2) the District Court determined, rather than the jury, that Basley’s prior conviction qualified as a senteneing-enhancing prior conviction.
The Sixth Amendment right to a trial by jury extends to sentencing, United States v. Booker, 543 U.S. 220, 226, 244, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), but the Sixth Amendment is not violated when a court, as opposed to a jury, finds that a defendant has a prior conviction, Almendarez-Torres v. United States, 523 U.S. 224, 226-27, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). Although the holding of Almendarez-Tor-res has been questioned by the Supreme Court, it continues to bind this Court. United States v. Vargas, 477 F.3d 94, 105 (3d Cir.2007). Therefore, the District Court did not violate Basley’s Sixth Amendment rights by finding a prior conviction existed for the purpose of sentencing enhancement.
Basley further contends that even if the District Court was permitted to determine that he had a prior conviction under Al-mendarez-Torres, his Sixth Amendment rights were violated when the District Court imposed an enhanced sentence based on that conviction without a jury finding that the nature of Basley’s prior conviction qualified him for such an enhancement. The District Court is statutorily authorized to enhance the mandatory minimum on Count Five only if Basley has a prior felony drug conviction. 21 U.S.C. § 841(b)(l)(E)(iii). Thus, in order to enhance Basley’s sentence, the District Court had to find both that Basley had a prior conviction, and that the conviction was eligible for enhancement.
Basley’s argument tries to parse the unparseable: if a court is permitted to find the fact that a defendant had a prior conviction, it would make no sense that it would be unable to find what that prior conviction was for. Moreover, this argument is undermined by Supreme Court precedent. The Supreme Court permits a sentencing court to look at the fact of conviction, the statutory definition of the crime, and the charging papers and jury instructions of the prior offense to determine whether a prior conviction qualifies for sentence enhancement under another statute. Shepard v. United States, 544 U.S. 13, 16, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005); Taylor v. United States, 495 U.S. 575, 601, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). Here, the District Court merely looked at the fact of conviction and the statutory elements of the convicted crime to determine that Basley’s prior conviction was a prior felony drug conviction. Therefore, it did not err by finding that Basley had a prior felony drug conviction, which made his sentence enhanceable.10
*464B.
Basley also challenges his sentence as both proeedurally and substantively unreasonable. This Court reviews the overall sentence for abuse of discretion, Tomko, 562 F.3d at 566, by engaging in a procedural and substantive review of the sentence, see United States v. Lessner, 498 F.3d 185, 203 (3d Cir.2007). Proeedurally, the District Court must (1) accurately calculate the applicable Sentencing Guidelines range; (2) formally rule on the motions of both parties and state on the record whether the court is granting a departure and how that departure affects the guidelines range; and (3) consider all the factors under 18 U.S.C. § 3553(a)11 and adequately explain the chosen sentence in a manner that allows for meaningful appellate court review of the reasonableness of the sentence. See Gall v. United States, 552 U.S. 38, 49-51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007); United States v. Gunter, 462 F.3d 237, 247 (3d Cir.2006). If the District Court’s procedure is without error, then we consider the substantive reasonableness of the sentence based on the totality of the circumstances. Tomko, 562 F.3d at 566. Notably, the party challenging the sentence has the burden to demonstrate unreasonableness at both stages of review. Id.
It is clear to us from the record that the District Court followed the procedural guidelines, accurately calculated Easley’s sentence, and gave meaningful consideration to the relevant § 3553(a) factors. Moreover, the court did not abuse its discretion by imposing a sentence of 300 months’ imprisonment. Therefore, we conclude the sentence was proeedurally and substantively reasonable.
V.
For the foregoing reasons, we will affirm the District Court’s judgment and sentence in all respects, except with regard to its finding that the evidence was sufficient to establish that Basley knowingly possessed the Beretta.
. This call was not recorded, but Cameron put the call on speaker so the officers present could hear his conversation with Basley.
. This cocaine, totaling 1,623.8 grams, is the basis for Count Six of the indictment.
. At trial the government played a video of the search. In it, one could see the learner’s permit was issued to Shahee C. Williams. When Basley was arrested officers recovered a driver’s license with the name of Shahee C. Williams, under Basley’s photograph, from Basley’s wallet. Thus, the learner’s permit belonged to Basley because it served as identification for his alias.
.The 107 grams of cocaine base formed the basis of Count Five.
. The Glock and the Beretta formed the basis for Counts Seven and Eight.
. The Taurus formed the basis of Count Twenty-
.Basley was tried separately.
. The Supreme Court recently issued an order amending Rule 29 to allow defendants a longer period of time to file a Rule 29 motion. As it is not yet in effect, we analyze this case under the prior rule. U.S. Order 09-18.
. Although this Court has not considered the question, other courts have held that in a Rule 29 motion a defendant merely needs to put the government on notice that he is challenging the sufficiency of the evidence. See United States v. South, 28 F.3d 619, 627 (7th Cir.1994) (noting that Rule 29 does not require anything more than notice that defendant was "contesting the sufficiency of the evidence”); United States v. Gjurashaj, 706 F.2d 395, 399 (2d Cir.1983) (finding that defendants “need not specify the grounds of the [Rule 29] motion in order to preserve a sufficiency claim for appeal”).
. In an unpublished opinion, this Court previously rejected the distinction between a court finding of a prior conviction, and a finding of the nature of the prior conviction. United States v. Randolph, 236 Fed.Appx. 777, 778 (3d Cir.2007).
. Section 3553(a) instructs the sentencing court to consider (1) the nature of the offense and the defendant’s personal characteristics; (2) the need for the sentence to punish the defendant, deter similar conduct by the defendant and the public, protect the public from the defendant, and rehabilitate the defendant; (3) the types of sentences available; (4) the sentencing guidelines; (5) any policy statements of the Sentencing Commission; (6) the objective of uniformity in criminal sentencing; and (7) the need to provide restitution.
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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/8475830/
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OPINION OF THE COURT
JORDAN, Circuit Judge.
Edwin Young appeals from an order of the United States District Court for the Western District of Pennsylvania granting summary judgment to American Life Assurance Company of New York (“AI Life”) on Young’s claim for benefits under the Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. § 1001, et seq. (“ERISA”). For the following reasons, we will affirm.
I. Background
Young, as a managing attorney for American International Group, Inc. (“AIG”), was an eligible participant under Group Disability Insurance Policy GLT-10761 (the “Policy”), an employee sponsored benefit program governed by ERISA and issued and insured by AI Life. On November 26, 2001, he experienced severe chest pains at work and was taken to the hospital. Tests revealed that Young did not suffer from a heart condition, which led his cardiologist, Dr. Dennis Eberz, to believe that the symptoms resulted from depression and stress that Young suffered in connection with his job.
On April 25, 2002, Young filed for long-term disability (“LTD”) benefits under the Policy, alleging that he had been disabled since November 26, 2001.1 In his LTD benefits claims form, Young reported that he was disabled due to “major depres*466sion/panic disorder caused by stressful work environment/workload.” (Supp.App. at AMER0794.) The physician’s portion of the LTD benefits claims form, filled out by Dr. Eberz, similarly reported a diagnosis of “major depression/panic disorder.” (SuppApp. at AMER0788-89.) Young’s application also included a letter from his psychiatrist indicating that Young was receiving treatment for major depressive disorder. AI Life determined that Young was eligible for LTD benefits and informed Young that he would begin receiving those benefits on May 28, 2002, pursuant to the mental illness and substance abuse provision of the Policy. In contrast to benefits for physical disability, the Policy’s mental illness and substance abuse provision limited LTD benefits for mental illness, including physical manifestations of mental illness, to a twenty-four month period. Accordingly, Young’s benefits would expire on May 27, 2004.
In 2003, while receiving benefits under the Policy, Young applied for Social Security Disability benefits, describing his condition as “severe clinical depression — unable to focus or concentrate.” (Supp.App. at AMER0705.) The Social Security Administration awarded Young benefits on January 25, 2004, based on its determination that he had become disabled on November 26, 2001.
Just prior to the expiration of his benefits under the Policy, Young notified the individual at AI Life who was handling his claim (the “claims administrator”) that his disability was ongoing, and he requested information to challenge the upcoming expiration of his LTD benefits. On July 1, 2004, Dr. Eberz wrote a letter on Young’s behalf stating “I do not understand the division between the mental and physical illness and do believe that [the termination of Young’s LTD benefits] is discriminating against patients with mental illness.” (SuppApp. at AMER0619.) The doctor further noted that, in addition to mental illness, Young suffered from physical symptoms associated with work-related stress such as chest pain and gastroeso-phageal reflux. Relying on this letter, Young, in an August 4, 2004 letter to an AI Life affiliate, asserted for the first time that his disability was “physical in nature” and thus not subject to the Policy’s two-year limit on LTD benefits for mental disability.2 (Supp.App. at AMER0618.)
Thereafter, AI Life requested Young’s medical records to determine whether he in fact suffered from a physical disability. Once the records were received, the claims administrator sought an independent medical review by Dr. Rose Ho, a Board Certified physician in physical medicine and rehabilitation. In connection with her review, Dr. Ho consulted with Dr. Eberz. Dr. Ho reported that Dr. Eberz “ruled out [Young] for any cardiac problems” and “did not feel that [Young’s] physical condition rose to a level in which he would be physically impaired,” but rather that Young was “severely limited secondary to depression and adynamic mood.” (Supp. App. at AMER0512.) In a February 1, 2005 report, Dr. Ho acknowledged Young’s diagnoses of depression, panic disorder, carpal tunnel syndrome, a possible rotator cuff tear, arthritis, joint arthritis and asthma. She concluded however, that, based on Young’s medical records and her discussion with Dr. Eberz, Young’s physical conditions did not rise to the level of a physical disability. In a March 14, 2005 *467letter, the claims administrator denied Young’s request for benefits because his disability “was a result of a mental illness” and because his physical conditions did not equate to a physical disability. (Supp.App. at AMER0497-99.)
Young appealed that decision and sent AI Life additional information relevant to his claim, including a September 20, 2005 letter from Dr. Eberz in which Dr. Eberz identified several of Young’s physical conditions- — -among them chest pain, asthmatic bronchitis, and gastroesophageal reflux— and opined that Young would suffer a “medically unacceptable risk” of disability in cardiac, gastrointestinal, and respiratory functions if he returned to work. (Supp. App. at AMER 0471.) Young also sent an affidavit in which he attested that he was physically incapable of continuing in his occupation3 due to his rotator cuff injury, asthmatic bronchitis, carpal tunnel syndrome, and cardiac symptoms. Upon review of the file, including that additional information, the claims administrator upheld the denial of benefits.
Young appealed again. Upon receiving Young’s up-to-date medical records, the claims administrator arranged for another independent medical review, this one conducted by Dr. Robert L. Marks, a Board Certified physician in physical medicine and rehabilitation and neurology. In addition to reviewing Young’s medical records, Dr. Marks spoke with Dr. Eberz, who stated that when he last saw Young, on June 28, 2005 (eighteen months prior), he found no major cardiac abnormalities despite Young’s complaints of chest pain. Dr. Eberz believed that the chest pain was likely related to gastroesophageal reflux disease. Importantly, Dr. Eberz also “indicated that he did not believe that [Young’s] physical condition was of a magnitude to preclude return to work.” (Supp.App. at AMER0185, 189.) Dr. Marks also spoke with Young’s physiatrist, Dr. Henderson, who also stated that Young was “sufficiently functional to be able to work.” (Supp.App. at AMER0185, 192.) Both doctors returned letters to Dr. Marks certifying Marks’s rendition of their conversations.
In a January 19, 2007 report, Dr. Marks concluded that Young was able to physically perform his job as of November 27, 2001 with some limitations — -wrist splints, changes in position, and file carriers — to accommodate his shoulder problem and carpal tunnel syndrome. Dr. Marks further noted that most of those limitations “are actually recommendations for asymptomatic individuals in an otherwise ‘normal’ work situation.” (Supp.App. at AMER0187.) Dr. Marks’s report was based on his discussions with Young’s treating physicians and a review of Young’s entire file.
Upon review of Dr. Marks’s report, the claims administrator sent Young’s file to a rehabilitation case manager to determine whether Young could perform his occupation. The rehabilitation case manager concluded that, based on Dr. Marks’s report, Young could physically perform his occupation, a sedentary level job in the national economy, with the accommodations identified by Dr. Marks. Based on a review of Young’s file, including Dr. Marks’s report and the rehabilitation case manager’s conclusions, the claims administrator upheld the determination that Young was not entitled to benefits for physical disability.
Having exhausted his administrative remedies, Young filed this lawsuit pursuant to ERISA, 29 U.S.C. § 1132(a)(1)(B), to recover benefits under the Policy. The *468parties filed cross-motions for summary judgment. In analyzing Young’s claim, the District Court applied a “moderately heightened [arbitrary and capricious] standard of review, at the lower end of the sliding scale” finding that a conflict of interest existed because “the entity funding the plan ... also made the final decision regarding eligibility.” Young v. Am. Int'l Life Assurance Co. of N.Y., Civ. A. No. 07-626, 2008 WL 4155082, at *6 (W.D.Pa. Sept. 9, 2008). Turning to the merits of Young’s claim, the District Court held that AI Life’s denial of benefits was not arbitrary and capricious under that standard and, accordingly, issued an order granting summary judgment to AI Life and against Young. Id. at **6-8. Young timely appealed.
II. Discussion4
We exercise plenary review over an appeal from a grant of summary judgment. Jacobs Constructors, Inc. v. NPS Energy Servs., Inc., 264 F.3d 365, 369 (3d Cir.2001). Summary judgment is appropriate if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Id. (citing Fed. R.Civ.P. 56(c)). “In making this determination, we must consider the evidence in the record in the light most favorable to the nonmoving party.” Id.
A. ERISA Standard of Review
“[A] denial of benefits challenged under § 1132(a)(1)(B) is to be reviewed under a de novo standard unless the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan.” Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989). If a plan gives the administrator discretion, we review the administrator’s decisions under an arbitrary and capricious standard. Doroshow v. Hartford Life and Acc. Ins. Co., 574 F.3d 230, 233 (3d Cir.2009). We had previously adopted a heightened form of arbitrary and capricious review for those cases in which an administrator acts under a conflict of interest, using a “sliding scale” approach to address how much deference should properly be afforded to a conflicted administrator’s determination. See Post v. Hartford Ins. Co., 501 F.3d 154, 161 (3d Cir.2007). In the wake of the Supreme Court’s decision in Metropolitan Life Insurance Co. v. Glenn, 554 U.S. 105, 128 S.Ct. 2343, 171 L.Ed.2d 299 (2008), however, our sliding scale approach is no longer tenable. Estate of Schwing v. The Lilly Health Plan, 562 F.3d 522, 525 (3d Cir.2009). Nevertheless, conflicts of interest remain a factor that courts must consider in evaluating whether an administrator’s denial of benefits is arbitrary and capricious. Id. at 526.
The Policy clearly gives AI Life the kind of discretion that triggers an arbitrary and capricious standard of review.5 (See Supp. App. at AMER0-024 (“AI Life Assurance Company of New York has full discretion and authority to determine eligibility for benefits and to construe and interpret all *469terms and provisions of the Group Insurance Policy.”).) Unfortunately, the District Court did not have the benefit of our opinion in Estate of Schwing,6 which issued months after the District Court ruled on the parties’ motions, so the Court analyzed Young’s claim under the sliding scale approach, determining that a “moderately heightened standard of review, at the lower end of the sliding scale” was appropriate because of a financial conflict, since the insurer of the Policy also acted as a decision-maker on benefits coverage.7 Young, 2008 WL 4155082, at *6. Because we no longer use the sliding scale approach, we will apply an unmodified arbitrary and capricious review to AI Life’s decision, but in doing so, we will take into account the admitted financial conflict as one factor in our analysis. See Glenn, 128 S.Ct. at 2351 (“[CJonflicts are but one factor among many that a reviewing judge must take into account.”). “Under a traditional arbitrary and capricious review, a court can overturn the decision of the plan administrator only if it is without reason, unsupported by substantial evidence or erroneous as a matter of law.” Doroshow, 574 F.3d at 234.
B. AI Life Did Not Abuse Its Discretion in Denying Young Benefits
As to the merits of his claim, Young contends that AI Life’s determination that he was not physically disabled is arbitrary and capricious because it is contradicted by Dr. Eberz’s September 20, 2005 letter, as well as being unsupported by the record. Specifically, Young relies on Dr. Eberz’s statements that Young “definitely suffers a risk of disability were he to go back to work and that disability could occur either in the cardiac area, gastrointestinal area and from the respiratory standpoint as well,” and that “there is a medically unacceptable risk for Mr. Young to go back to work from the standpoint of perhaps even a myocardial infarction or other such calamity in the other areas outlined above.” (Supp. App. at AMER0471.) The doctor’s comments, however, have been seriously undermined and will not bear the weight Young puts on them.
First, Dr. Eberz’s statement that Young’s physical conditions presented “a medically unacceptable risk [if Young went] back to work from the standpoint of perhaps even a myocardial infarction [i.e., a heart attack]” is flatly contradicted by his discussions with Drs. Ho and Marks in which he acknowledged that Young could indeed return to work. Further, Dr. Eberz’s own records — which indicate normal stress tests and EKGs and no physical abnormalities — contradict the notion that Young is physically disabled due to a heart condition or that Young might suffer a heart attack should he return to work. In fact, Dr. Eberz has indicated on more than one occasion that Young’s chest pain resulted from gastroesophageal reflux disease, apparently caused by mental stress. The doctors treating Young for other physical symptoms, such as carpal tunnel syndrome and shoulder pain, did not indicate that Young was physically disabled due to those conditions, nor do their records suggest that Young’s conditions render him physically disabled. Given the lack of medical evidence suggesting physical disability and the adequately supported opinions of Drs. Ho and Marks, AI Life did not abuse its discretion in disregarding Dr. Eberz’s unsupported disability conclu*470sion, which contradicts his own statements and records.8 See Black & Decker Disability Plan v. Nord, 538 U.S. 822, 825, 123 S.Ct. 1965, 155 L.Ed.2d 1034 (2003) (“[P]lan administrators are not obliged to accord special deference to the opinions of treating physicians.”); Stratton v. E.I. DuPont De Nemours & Co., 363 F.3d 250, 258 (3d Cir.2004) (“A professional disagreement does not amount to an arbitrary refusal to credit.”). Furthermore, since the case before us is clear, the conflict of interest identified by the District Court does not tip the scales in favor of Young, especially since there is no indication that the conflict affected AI Life’s decision. See Glenn, 128 S.Ct. at 2351 (noting that a conflict of interest “will act as a tiebreaker when other factors are closely balanced” and “should prove more important ... where circumstances suggest a higher likelihood that it affected the benefits decision”).
Young relies heavily on Lasser v. Reliance Standard Life Insurance Co., 344 F.3d 381 (3d Cir.2003) in support of his argument that AI Life acted arbitrarily and capriciously by disregarding the unacceptable medical risk identified by Dr. Eberz, but Lasser is distinguishable. Unlike Young, the claimant in Lasser suffered from a well-documented heart condition.9 344 F.3d at 383 (noting that the plaintiff “suffers from coronary artery disease”). Furthermore, in Lasser, we held that the administrator’s decision was arbitrary and capricious because “all evaluating physicians [including two doctors engaged by the administrator] — with the exception of [one doctor] whose report the others discredited — agreed that [the plaintiffs] heart condition precludes him from safely performing [the duties of his job].” Id. at 391. In contrast, the evidence in this case strongly suggests that Young can perform his job without risking physical injury. Although occupational stress might have been hazardous to Young’s mental condition, it was not arbitrary and capricious for AI Life to conclude that Young could physically work at his occupation and handle work-related stress. Furthermore, we cannot overlook the fact that Young consistently characterized his disability as depression — both in his LTD benefits claim form and his application for social security benefits — and only changed his position when he realized that his benefits had been exhausted under the Policy’s mental illness provision.
Young also argues that AI Life’s reliance on Dr. Marks’s opinion was arbitrary and capricious because Dr. Marks noted *471Young would need some accommodations to return to work but the Plan’s definition of “disability” does not account for reasonable accommodations or limitations. AI Life responds that the Policy speaks in terms of “essential duties,” defined by the Policy as, among other things, “a duty that ... can not be reasonably omitted or changed.” (Supp.App. at AMER0006.) This language, AI Life argues, “exemplifies a modification provision, which implicates reasonable workplace accommodations,” thereby permitting AI Life to take reasonable accommodations into account in determining whether a claimant can perform the essential duties of his job. (Ap-pellees’ Answering Br. at 49.)
Dr. Marks concluded that Young “should have been able to physically perform the duties of his work, but with some limitations,” namely, avoiding heavy lifting, changing position every forty-five minutes, and using a wrist splint to assist with writing, typing, and using the phone. (Supp.App. at AMER0186.) To the extent that carrying files and typing would be difficult for Young due to his shoulder problem and carpal tunnel syndrome, it is clear that the effects of those tasks can be ameliorated by allowing Young to use wrist splints and devices, such as a wheeled briefcase, to facilitate the transfer of large files.10 Thus, while Dr. Marks may have incorporated limitations into his analysis, he was simply doing what was required under the Policy by outlining the manner in which Young was capable of physically performing the essential duties of his job. AI Life did not abuse its discretion in relying on Dr. Marks’s report because it could reasonably conclude that the aspects of the job with which Young might struggle could be addressed by adopting the suggested limitations, most of which would be recommended even “for asymptomatic individuals in an otherwise ‘normal’ work situation.” (Supp.App. at AMER0187.) Simply because Dr. Marks did not use language that tracks the Policy does not mean that AI Life abused its discretion.
Furthermore, the Policy dictates that benefits will be terminated if a claimant “refuses to cooperate with or try ... modifications made to the work site or job process to accommodate [the claimant’s] identified medical limitations to enable [the claimant] to perform the Essential Duties of [the claimant’s] Occupation or a reasonable alternative.” (SuppApp. at AMER0017.) It is clear then that, to the extent Young can perform the essential duties of his job with accommodations, he is not entitled to benefits.
III. Conclusion
Despite Young’s attempt to transform his depression and associated mental health issues into a physical disability, the record adequately supports AI Life’s determination that Young’s mental and physical conditions did not equate to a physical disability that precludes him from working in his own occupation. Accordingly, it was not arbitrary or capricious for AI Life to deny him benefits. We will therefore affirm the judgment of the District Court.
. A participant in the plan is entitled to receive LTD benefits if he becomes disabled, meaning that he is prevented "from performing one or more of the Essential Duties of [His] Occupation” as a result of accidental bodily injury, sickness, mental illness, substance abuse, or pregnancy, and consequently earns less than 80% of his pre-disability earnings. (Supp.App. at AMER0005.)
. The letter is addressed to “AIG Life Companies (U.S.), Appeals Unit,” and says, among other things, "I do believe that the two year limitation for mental disability is highly discriminatory and would not be received favorably by the courts.... ” (Supp.App. at AMER0618.) Thus, despite his claim of a physical disability, Young continued to advocate his case as if it were based on a mental disability.
. The Policy defines "Your Occupation” as "your occupation as it is recognized in the general workplace. Your occupation does not mean the specific job you are performing for a specific employer or at a specific location.” (Supp.App. at AMER0009.)
. The District Court had subject matter jurisdiction pursuant to 28 U.S.C. § 1331 and 29 U.S.C. § 1132(e). Our jurisdiction arises under 28 U.S.C. § 1291.
. Young does not claim that AI Life lacks discretion to determine benefits under the Policy. Instead, Young argues that the fact that AI Life abused its discretion by failing to consider "all of the probative and relevant evidence in the administrative record" requires us to apply a de novo standard of review. (Appellant’s Op. Br. at 19.) In other words, because AI Life abused its discretion, argues Young, AI Life is not entitled to the benefit of the arbitrary and capricious standard but should be penalized with a de novo standard of review. Young cites no law in support of his novel theory.
. The District Court also did not mention Glenn, which issued very shortly before the Court ruled on the parties’ motions.
. AI Life concedes, as it did before the District Court, that a financial conflict of interest exists in this case. Young, 2008 WL 4155082, at *5.
. Young's assertions that AI Life failed to consider Dr. Eberz’s letter are meritless. The claims administrator explicitly identified the letter as among the items reviewed in connection with the denial of Young’s first appeal, but rejected Dr. Eberz’s conclusions as unsupported by objective findings. The mere fact that neither Dr. Marks's report nor the claims administrator's final letter denying Young’s second appeal specifically referenced Dr. Eberz’s letter, when it is clear that both Marks and the claims administrator reviewed Young's entire file in determining Young’s disability status, does not require us to find in Young's favor, especially in light of Dr. Eberz’s change in position. Young also argues that it is not clear whether Dr. Eberz's statement to Dr. Marks, that Young could physically work, referred to work in Young's own occupation or “work in general” such as "part-time unskilled work.” (Appellant’s Op. Br. at 21.) Even assuming that Dr. Eberz's statement could be given the meaning Young attributes to it, Dr. Marks clearly understood Young's position, and the conclusions in his report, which were reached in light of that understanding, are sufficiently supported by the medical record.
. Likewise, Hoover v. Provident Life and Accidental Insurance Co., on which Young also relies, concerned a claimant suffering from a heart condition: coronary artery disease with stress-induced angina. 290 F.3d 801, 803 (6th Cir.2002).
. Furthermore, since Young’s job as an attorney is considered sedentary work that requires only the occasional lilting of up to ten pounds, it is unlikely that the need to engage in heavy lifting can fairly be considered an essential duty of the job. Although Young asserts in his affidavit that, as an attorney for AIG, he was regularly required to carry files, exhibits, and books ranging between twenty and one-hundred pounds, whether Young can perform his occupation as required by the Policy depends on whether he can perform the duties of that job as it exists in the general workplace.
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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/8475832/
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OPINION OF THE COURT
JORDAN, Circuit Judge.
This case, before us for a third time, involves an appeal from an order of the *473United States District Court for the Middle District of Pennsylvania awarding attorneys’ fees to appellee Ronald T. Tomas-ko, who prevailed in part on his claims under the Employee Retirement Income Security Act (“ERISA”) against his former employer, Ira H. Weinstock, P.C., and its principal, Ira H. Weinstock (collectively ‘Weinstock”). Weinstock also appeals the District Court’s amendment of its order, which allowed the portion of fees originally owed to Attorney Michael A. Koranda to be paid to the law firm of Tomasko & Koranda, P.C. For the following reasons, we will affirm.
I. Background
As the facts are well known to the parties, we recount here only those facts necessary for the disposition of the present appeal.1 Tomasko was employed as an associate with the law firm Ira H. Wein-stock, P.C. from August 13, 1991 through his resignation on January 2, 1997. He participated in two defined contribution pension plans during his employment, the Ira H. Weinstock Money Purchase Plan and the Ira H. Weinstock Profit Sharing Plan. Ira H. Weinstock, P.C. functioned as the plans’ sponsor and administrator while Mr. Weinstock acted as trustee of the plans. Both plans provided that the employer’s contributions for a given employee for each plan year ending on December 31 would be determined based on the employee’s W-2 compensation for that plan year. The plans require the employee to remain employed for the entirety of the plan year in order to receive contributions.
In 1993, Weinstock agreed to give To-masko a $3,000 salary increase, paid in biannual bonuses, and to award Tomasko additional bonuses, in amounts left to Weinstock’s discretion, based on work that Tomasko would do and for which he would submit proof when he requested such a bonus. Tomasko resigned on January 2, 1997 to begin his own law firm, after misleading Weinstock as to his intention to remain employed by Ira H. Weinstock, P.C. Before resigning, however, he submitted a request for a bonus in the amount of $14,200.00 for his work on cases that were settled in the fourth quarter of 1996. On January 17, 1997, Mr. Weinstock, in his discretion, had the firm pay Tomasko a bonus of $6,100.00 ($1,500.00 of which represented Tomasko’s bi-annual bonus), which was included as income on Tomas-ko’s 1997 W-2 instead of his 1996 W-2. Since Tomakso resigned before the end of 1997, Weinstock was thus able to avoid making a contribution to the plans based on this $6,100.00.
Tomasko sued Weinstock, eventually asserting three claims: (1) a claim pursuant to the Pennsylvania Wage Payment and Collection Law (“WPCL”), 42 Pa. Cons. Stat. § 260.1, et seq. to collect the additional $8,100 Tomasko believed was owed to him; (2) an ERISA claim to recover benefits due under the pension plans for the $6,100 Tomasko earned and the additional $8,100 he believed he was owed, see 29 U.S.C. § 1132(a)(1)(B); and (3) an ERISA claim for breach of fiduciary duty, see 29 U.S.C. § 1132(a)(2). On December 18, 2001, after a bench trial, the District Court found in favor of Tomasko on his ERISA claim to recover pension benefits, concluding that Weinstock owed contributions to the pension plans for the $6,100.00.2 In so *474holding, the Court rejected Weinstock’s interpretation of the plans — that contributions were not due until compensation was paid as opposed to earned — because such an interpretation was inconsistent with the way Weinstock normally made contributions under the plans. Additionally, the Court concluded that Weinstock breached a fiduciary duty “by deliberately not making the appropriate contribution to [To-masko’s] pension accounts on money earned in 1996,” based on “resentment toward [Tomasko] for resigning.”3 However, the District Court rejected Tomasko’s WPCL claim because Tomasko failed to prove that he was entitled to any compensation beyond the $6,100 he had already received from Weinstock.
Both Tomasko and Weinstock subsequently moved for attorneys’ fees. The District Court concluded that, since each side prevailed on half of its case, neither party was entitled to fees. On appeal, we affirmed the District Court’s judgment but vacated its order on attorneys’ fees because the District Court failed to undertake the five factor analysis governing the availability of fee awards in an ERISA litigation, set forth in our opinion in Ursic v. Bethlehem Mines, 719 F.2d 670 (3d Cir.1983).4 Tomasko I, 80 Fed.Appx. at 785. We therefore remanded the matter “to the District Court for consideration of the Ursic factors.” Id. at 783 (footnote omitted).
On remand, the District Court again denied attorneys’ fees in a September 5, 2006 memorandum and order. The District Court analyzed the Ursic factors, concluding that, although the factors weighed slightly in favor of Tomasko, it would not order fees to either party due to a lack of exceptional circumstances warranting a fee. The parties cross-appealed the Court’s denial of fees. Tomasko II, 255 Fed.Appx. at 678.
We affirmed the District Court’s refusal to award fees to Weinstock but vacated and remanded the portion of the District Court’s decision denying fees to Tomasko. Id. We concluded that the District Court misstated the law, and that its error might have impacted the Court’s ruling. Id. at 680-81. Additionally, we found that the District Court erred in its application of three of the Ursic factors as to Tomasko’s motion for attorneys’ fees. Id. at 681-82.
On January 15, 2008, in light of our mandate, the District Court issued an order granting counsel twenty days to update the amount of counsel fees claimed. On January 28, 2008, Tomasko submitted an addendum to his motion for attorneys’ fees. The addendum included an up-to-date account of the time that Michael A. Koranda, lead counsel for Tomasko, had spent on the case and an account of the time invested by Kathryn L. Simpson, who took over the case after Koranda’s untimely death in December 2006. The time sheets included hours spent on post-trial motions and appeals. Weinstock never filed a response. After holding oral argument on June 26, 2008, the Court issued a July 29, 2008, 2008 WL 2962909, memorandum and order granting attorneys’ fees to Tomasko. Taking the Ursic factors together, the Court found that Tomasko was entitled to recover attorneys’ fees.
In calculating the fee, the Court first concluded that Koranda and Simpson’s hourly rates were reasonable. Next, the *475Court apportioned Koranda’s fees through trial to account for the fact that Tomasko was only partially successful on his claims. In this regard, the Court only allowed recovery for the time Koranda spent through trial on Tomasko’s ERISA claim for pension contributions as to the $6,100.5 Ultimately, the District Court awarded $40,712.50 to Koranda, $4,416.00 to Simpson and $117.70 in costs. The fees awarded also included time spent on post-trial motions and appeals, which were not apportioned, even though Tomasko never sought to recover such fees in his original motion for fees.
Tomasko thereafter moved to amend or correct the Court’s judgment to allow for the fees owed to Koranda to be paid to the law firm of Tomasko & Koranda, P.C. in light of Koranda’s untimely death in December of 2006. On August 12, 2008, the District Court amended its judgment accordingly, allowing the $40,712.50 in fees owed to Koranda to be paid to Tomasko & Koranda, P.C. Meanwhile, Weinstock filed a motion for reconsideration of the Court’s July 29, 2008 order awarding attorneys’ fees. The Court denied Weinstock’s motion on November 21, 2008, 2008 WL 5068951, explaining that it had properly applied the Ursic factors, properly apportioned the unsuccessful claims from the successful ones, and that it need not address Weinstock’s objections to specific time entries because Weinstock failed to raise those objections in briefs or at oral argument. Weinstock timely appealed.6
II. Discussion7
A The District Court Did Not Abuse Its Discretion in Awarding Attorneys’ Fees to Tomasko
Section 502(g)(1) of ERISA provides that a district court “in its discretion may allow a reasonable attorney’s fee and costs of action to either party.” 29 U.S.C. § 1132(g)(1). In determining whether such a fee award is warranted pursuant to this provision, a district court must consider the following five factors, referred to as the Ursic factors:
(1) the offending parties’ culpability or bad faith;
(2) the ability of the offending parties to satisfy an award of attorneys’ fees;
(3) the deterrent effect of an award of attorneys’ fees against the offending parties;
(4) the benefit conferred on members of the pension plan as a whole; and
(5) the relative merits of the parties’ positions.
Ursic, 719 F.2d at 673. Although there is “no presumption that a successful plaintiff *476in an ERISA suit should receive an award in the absence of exceptional circumstances,” McPherson v. Employee’s Pension Plan of Am. Re-Insurance Co., 33 F.3d 253, 254 (3d Cir.1994), we have acknowledged that ERISA defendants often bear the burden of attorneys’ fees for a prevailing plaintiff, Brytus v. Spang & Co., 203 F.3d 238, 242 (3d Cir.2002); see also Tomasko II, 255 Fed.Appx. at 680 (explaining that prevailing ERISA plaintiffs often recover fees even though there is no presumption in favor of a fee award). We review a district court’s award of attorneys’ fees for abuse of discretion. McPherson, 33 F.3d at 256. Our review of the legal standards applied by a district court, however, is plenary. Id.
Weinstock first argues that the District Court’s fee award is based on the misconception that Tomasko was entitled to a fee simply because he prevailed on certain of his claims. There is, however, nothing in the Court’s opinion indicating that the Court felt it was required to grant Tomas-ko attorneys’ fees because of his partial success in this excruciatingly drawn-out litigation. To the contrary, the District Court correctly noted that a successful plaintiff in an ERISA litigation is not entitled to a fee award solely because he prevails on his case. The Court accurately set forth the governing law, clearly appreciating that the propriety of a fee award turned on its analysis of the Ursic factors.
It is rather Weinstock who misapprehends the law. Weinstock argues that, since no exceptional circumstances exist in the case, Tomasko is not entitled to fees. But, as we explained in Tomasko II, although a prevailing plaintiff receives no presumption that he is entitled to fees, “[t]his is very different from a presumption that prevailing plaintiffs are not entitled to attorney’s fees absent exceptional circumstances.” Tomasko II, 255 Fed.Appx. at 680 (internal quotations omitted and emphasis in original). Indeed, we attributed error to the District Court’s analysis then because it involved the same faulty understanding of law that Weinstock now urges us to apply. Id.
Weinstock next argues that the District Court improperly applied three of the five Ursic factors: the first factor (the offending parties’ bad faith), the third factor (deterrence) and the fifth factor (relative merits of the parties’ positions). All of those contentions fail.
Weinstock complains that the District Court misapplied the first Ursic factor— the offending parties’ bad faith — because the Court “improperly looked only at To-masko’s conduct, failed to examine the material nature of Tomasko’s conduct as it relates to the ERISA count and further abused its discretion when finding that this factor supported an award of counsel fees.” (Appellants’ Op. Br. at 19.) Although Weinstock is correct that the District Court was required to consider Wein-stock’s conduct in assessing the first factor, it is clear that the District Court intended its July 29, 2008 opinion to be read in conjunction with its September 5, 2006 memorandum. In its September 5, 2006 memorandum, the Court found that Wein-stock acted culpably because Mr. Wein-stock and his firm “not only breached their Fiduciary Duty by treating the $6,100 payment as compensation for 1997, but in doing so acted out of resentment and did not possess a belief that they were treating Plaintiff the same as other participants of the plan.” (App. at 120.) However, since the Court also found that Tomasko had been misleading about his plans for future employment, the Court concluded that the first factor only “slightly” weighed in favor of an award. In our consideration of the case on appeal, we explained in Tomasko II that the District Court abused its discretion in considering Tomasko’s conduct in this regard because “[i]t is un*477reasonable for a fact-finder, charged with examining culpability regarding an ERISA claim, to describe as ‘culpable’ conduct that has nothing to do with ERISA liability.”8 255 Fed.Appx. at 682. On remand, the District Court removed Tomasko’s misrepresentation from its calculus, finding that, thereafter, the first Ursic factor “weighs in favor of [Tomasko] for an award of fees,” as opposed to slightly weighing in favor of Tomasko. (App. at 9.)
Although it would have been preferable for the District Court to have repeated its earlier conclusions as to Weinstock in its July 29, 2008 memorandum, we cannot ascribe error to the Court’s analysis, when viewed in the context of the prior history of this case. Furthermore, as we noted in Tomasko II, it was appropriate for the District Court to characterize Weinstock’s breach of fiduciary duty as culpable conduct supportive of a fee award. See To-masko II, 255 Fed.Appx. at 681 (“Wein-stock was culpable in two ways; he breached his fiduciary duty to Tomasko out of resentment for Tomasko’s resigning to open a competing law firm; and Wein-stock did not believe that he was treating Tomasko the same as other participants in the plans.”); see also McPherson, 38 F.3d at 256-57 (“[C]ulpable conduct is commonly understood to mean conduct that is ‘blameable; censurable; ... at fault; involving the breach of a legal duty or the commission of a fault ....’” (alterations in original and emphasis added) (quoting Black’s Law Dictionary (6th ed.1990))).
Weinstock next argues that the District Court misapplied the third Ursic factor— the deterrent effect of an award of attorneys’ fees against the offending parties— because the Court’s conclusion that “attorney’s fees may deter [Weinstock] from similar actions,” (App. at 10 (emphasis added)), in the future is insufficient, on its own, to tilt this factor toward Tomasko. We find nothing erroneous about the District Court’s conclusion. The Court recognized that Weinstock’s behavior in this case appeared to be a one-time event, but still concluded that an award would serve to deter Weinstock, should a similar scenario develop in the future. In light of the Court’s finding that Weinstock’s failure to make contributions for the $6,100.00 of earnings was a deliberate act motivated by resentment, we cannot say that an award would not serve to deter Weinstock from again allowing resentment to stand in the way of fulfilling its fiduciary duties.
Finally, Weinstock asserts that the District Court misapplied the fifth Ursic factor — the relative merits of the parties’ positions — when the Court found this factor to weigh slightly in favor of Tomasko. In Tomasko II, we concluded that the District Court did not abuse its discretion in its application of that factor. Tomasko II, 255 Fed-Appx. at 684 (“The District Court weighed the parties’ relative success, and even if its calculation was different than our own might be, the scales were square.”). Since that holding constitutes the law of the case on this issue, as Wein-stock acknowledged at oral argument before the District Court, we will not revisit the matter. See In re Pharmacy Benefit Managers Antitrust Litig., 582 F.3d 432, 439 (3d Cir.2009) (“The law of the case rules have developed to maintain consistency and avoid reconsideration of matters once decided during the course of a single continuing lawsuit.” (alterations and internal quotations omitted)).
*478In conclusion, we find no abuse of discretion in the District Court’s analysis of the Ursic factors. Accordingly, we will affirm the District Court’s decision to award Tomasko attorneys’ fees.
B. Amount of the Fee Award
Weinstock also takes issue with the District Court’s calculation of the fee award. Reasonable attorneys’ fees in an ERISA litigation are calculated using the lodestar approach, which yields a presumptively reasonable fee. Hahnemann Univ. Hosp. v. All Shore, Inc., 514 F.3d 300, 310 (3d Cir.2008). “Under the lodestar approach, a court determines the reasonable number of hours expended on the litigation multiplied by a reasonable hourly rate.” Id. However, “where the plaintiff achieved only limited success, the district court should award only that amount of fees that is reasonable in relation to the results obtained.” Hensley v. Eckerhart, 461 U.S. 424, 440, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983). The party seeking a fee award bears the burden of establishing the reasonableness of the fee. Interfaith Cmty. Org. v. Honeywell Int’l, Inc., 426 F.3d 694, 703 n. 5 (3d Cir.2005). “We review a district court’s award of fees for abuse of discretion and review a district court’s factual determinations, ‘including [the court’s] determination of an attorney’s reasonable hourly rate and the number of hours he or she reasonably worked on the case,’ for clear error.” United Auto. Workers Local 259 Soc. Sec. Dep’t v. Metro Auto Ctr., 501 F.3d 283, 290 (3d Cir.2007) (quoting Interfaith Cmty. Org., 426 F.3d at 703 n. 5) (alteration in original).
Weinstock does not challenge the reasonableness of Koranda and Simpson’s hourly rates. Instead, Weinstock challenges the amount of the fee award relative to Tomasko’s overall recovery and the District Court’s refusal to disallow certain time entries. First, Weinstock complains that the District Court’s award bears no relationship to the amount Tomasko recovered in the underlying litigation, rendering the fee award punitive. In making this argument, Weinstock relies heavily on our statement in Ursic that, in awarding a fee pursuant to a statutory authorization, “[c]are must be exercised to assure that the statutory purpose of encouraging [plaintiffs without adequate financial resources to litigate] is not achieved at the price of a fee award so out of proportion to the severity of the defendant’s violation that it amounts to an excessively punitive sanction.” Ursic, 719 F.2d at 677.
Despite Ursic’s language, we have recently “rejected] a proportionality rule for attorney’s fees awarded under ERISA.” Hahnemann Univ. Hosp., 514 F.3d at 311; cf. United Auto. Workers Local 259 Soc. Sec. Dep’t, 501 F.3d at 293-92 (rejecting the argument that fee award in ERISA litigation made pursuant to § 1132(g)(2)(D) must be proportional to recovery). We have also clarified Ursic, explaining that, although Ursic “remains good law insofar as it suggests courts consider ‘billing judgment’ in determining reasonable hours,” it does not stand for the proposition that “all fees must be proportional to be reasonable.” United Auto. Workers Local 259 Soc. Sec. Dep’t, 501 F.3d at 296; see also Ursic, 719 F.2d at 678 (“ ‘Billing judgment’ is a consideration well known to the responsible bar; it should not disappear when the courts are setting statutory fees.”). It is the degree of success, rather than the amount of recovery, that drives the fee analysis. United Auto. Workers Local 259 Soc. Sec. Dep’t, 501 F.3d at 296 (“Because the focus is on the ‘degree of success,’ and not success as defined in absolute numbers, this comparison [of the damages award to the fees requested] does not necessitate proportionality.”). Furthermore, a considerable portion of the fees awarded in this case *479were incurred in connection with the prolonged nature of the litigation. Weinstock fought tooth and nail throughout the course of the case, including two appeals prior to the one before us now, despite minimal stakes. There is thus no merit, and no little irony, in the complaint that the fees Tomasko incurred as a natural consequence of that behavior are excessive when compared to the value of the underlying judgment.
Weinstock also asserts that the fee award is excessive because the instant litigation focused upon whether the parties’ compensation arrangement required Wein-stock to pay Tomasko the entirety of To-masko’s requested bonus. Since Tomasko did not succeed in establishing that he was entitled to recover an additional $8,100 from Weinstock, he did not prevail on his WPCL claim and his ERISA claim for pension contributions to the extent he sought to recover contributions based on the $8,100. However, the District Court took Tomasko’s limited success into account by reducing Koranda’s fees through trial by two-thirds so as to allow recovery only for those claims on which Tomasko succeeded.9 We cannot say that the District Court’s apportionment, which clearly reduced the fees requested to account for Tomasko’s somewhat limited success, was clearly erroneous.
Next, Weinstock argues that the Court erred in failing to address objections to specific entries that Weinstock raised at the June 2008 oral argument. Weinstock never filed a response to Tomasko’s January 28, 2008 addendum to his motion for attorneys’ fees. Accordingly, we find that the specific objections that Weinstock raised for the first time at oral argument in the District Court have been waived. It would be unfair to permit Weinstock to prevail on arguments raised for the first time at oral argument, a method of proceeding that can deprive one’s opponent of any meaningful opportunity to respond.10
Finally, Weinstock contends that the District Court should not have awarded fees for time spent on post-trial work and on appeals because Tomasko never requested attorneys’ fees from our Court and because Tomasko’s request was untimely since he first sought to recover those fees in 2008. Weinstock represents that this argument was brought to the Court’s attention at oral argument. However, the record reflects only that counsel said,
As far as appeal, I believe that time should be looked at differently than the *480work before the district court. No one is saying that — no one has claimed at least that any of the appeals were bad faith by either party. So I believe appeal time should be examined differently than the time that was done before your Honor at the district court level.
(App. at 208-09.) Since Weinstock never raised before the District Court the arguments made in this appeal, they are waived. See Huber v. Taylor, 469 F.3d 67, 74 (3d Cir.2006) (“Generally, failure to raise an issue in the District Court results in its waiver on appeal.”). Furthermore, even if Weinstock had raised that contention at the June 2008 oral argument, we would still consider it waived for the same reason that Weinstock’s objections to specific time entries are waived.
C. The District Court Did Not Err in Amending its Judgment
Weinstock also ascribes error to the District Court’s amendment of the judgment to allow fees owed to Koranda to be paid to the law firm of Tomasko & Koranda, P.C. Weinstock’s argument that there is no evidentiary basis to permit Tomasko & Koranda, P.C. to recover the fee is baseless. It is clear from Koranda’s affidavit that he was a shareholder of Tomasko & Koranda, P.C., that Tomasko & Koranda, P.C. was representing Tomasko in this litigation, and that Koranda functioned as lead counsel for Tomasko. Furthermore, Koranda’s time sheets bear the header “Tomasko & Koranda, P.C.,” reflecting that Koranda generated his fees while working on Tomasko’s lawsuit in his capacity as an attorney of Tomasko & Koranda, P.C.
More importantly, the District Court’s amendment was not erroneous because the fee award belongs to Tomasko, not Koranda. As noted above, pursuant to § 502(g)(1) of ERISA, a district court “in its discretion may allow a reasonable attorney’s fee and costs of action to either party.” 29 U.S.C. § 1132(g)(1) (emphasis added). The statutory language makes clear that the fee belongs to the “party” and not the attorney who represents that party. See Brytus, 203 F.3d at 242 (acknowledging in the ERISA context that “the statutory fee belongs to the litigating party”); see also Cent. States Se. and Sw. Areas Pension Fund v. Cent. Cartage Co., 76 F.3d 114, 115 (7th Cir.1996) (“Most fee-shifting statutes, including ERISA, direct the award to the litigant rather than the lawyer.” (emphasis in original)). Accordingly, the District Court’s amendment of its order was proper. Any interest Koran-da’s estate may or may not have in the fee is a matter to be resolved by Tomasko and the estate.
D. Motion for Reconsideration
We review a denial of a motion for reconsideration for abuse of discretion unless “that denial interprets and applies a legal precept, [in which case] our review is plenary.” In re Tower Air, Inc., 416 F.3d 229 (3d Cir.2005) (quoting Le v. Univ. of Pa., 321 F.3d 403, 405-06 (3d Cir.2003)). “The purpose of a motion for reconsideration is to correct manifest errors of law or fact or to present newly discovered evidence.” Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir.1985). The District Court’s November 21, 2008 memorandum makes clear that Weinstock raised the same arguments in his motion for reconsideration that he now advances on appeal. Since we have determined that the Court properly resolved Tomasko’s motion for attorneys’ fees, the District Court did not err in denying Weinstock’s motion for reconsideration.
III. Conclusion
In sum, the District Court did not abuse its discretion in awarding Tomasko attorneys’ fees nor did the District Court abuse *481its discretion in calculating the amount of the fee. Accordingly, we will affirm its decisions in that regard. We will also affirm the District Court’s amendment of its July 29, 2008 order to allow the fees to be paid to Tomasko & Koranda, P.C.
. Additional facts can be found in our two prior opinions in this case Tomasko v. Ira H. Weinstock, P.C., 80 Fed.Appx. 779 (3d Cir.2003) (“Tomasko I ”) and Tomasko v. Ira H. Weinstock, P.C., 255 Fed.Appx. 676 (3d Cir. 2007) ("Tomasko II ”).
. According to Weinstock, the judgment on the ERISA claim ultimately entitled Tomasko *474to a contribution of approximately $650.00.
. The District Court made this finding in ruling on post-trial motions, one of which pointed out that the Court had not considered Tomasko’s claim for breach of fiduciary duty in its December 18, 2001 findings of fact and conclusions of law.
. The five Ursic factors will be discussed in full in our discussion, infra pp. 8-9.
. Specifically, the Court treated Tomasko's ERISA claim to recover contributions as two separate claims (one as to the $6,100 and one as to the $8,100), one on which Tomasko succeeded and one on which he did not. Taking those two claims with the Tomasko's unsuccessful WPCL claim, the Court allowed recovery of only one-third of Koranda’s fees through December 20, 2001. The District Court made no mention of the breach of fiduciary duty claim, perhaps because that claim was resolved via post-trial motions. See supra note 3.
. The Notice of Appeal reflects that Weinstock only appealed the District Court’s November 21, 2008 order denying Weinstock's motion for reconsideration of the July 29, 2008 memorandum and order, as amended on August 12, 2008. [App. at 1.] However, “[a] timely appeal from a denial of a Rule 59 motion [such as a motion for reconsideration] ‘brings up the underlying judgment for review.'" Fed. Kemper Ins. Co. v. Rauscher, 807 F.2d 345 (3d Cir.1986) (quoting Quality Prefabrication v. Daniel J. Keating Co., 675 F.2d 77, 78 (3d Cir. 1982)).
.The District Court had subject matter jurisdiction pursuant to 28 U.S.C. § 1331 and 29 U.S.C. § 1132(e). Our jurisdiction arises under 28 U.S.C. § 1291.
. Despite our discussion in Tomasko II, Wein-stock still "maintains that Tomasko's misrepresentation is material yet was not properly considered by the District Court.” (Appellants' Op. Br. at 20.) For the reasons stated in Tomasko II, we reject Weinstock’s argument. See Tomasko II, 255 Fed.Appx. at 681-82.
. The District Court’s assessment is actually somewhat favorable to Weinstock considering that the Court did not account for Tomasko's success on his breach of fiduciary duty claim in apportioning the fees.
. Weinstock endeavors to explain away the failure to file a response to Tomasko's addendum by saying that the District Court represented in a January 14, 2008 conference that Weinstock would be able to raise at oral argument any specific objections to the time sheets submitted by Tomasko. Unfortunately for Weinstock, he has pointed to nothing in the record to corroborate that assertion. Indeed, the District Court's January 15, 2008 order, which was entered "after having a conference call with counsel,” does not say anything of the sort. Approximately six months elapsed between the filing of Tomas-ko's addendum to his motion for attorneys' fees and oral argument on the matter. There is no reason why Weinstock could not have presented to the District Court a summary of objections and arguments in response to To-masko's addendum. And, if Weinstock believed that the Court's alleged representation during the phone conference relieved Wein-stock of the obligation to respond, Weinstock should have at least requested that the Court enter an order to that effect or otherwise created a record that would enable us to meaningfully review the assertion that such an unconventional method of responding to detailed written arguments was sanctioned by the District Court.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8475836/
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OPINION OF THE COURT
JORDAN, Circuit Judge.
Appellant Mike K. Brown appeals from a March 19, 2009 judgment of the United States District Court for the Western District of Pennsylvania sentencing him to nine months imprisonment, to be followed by one year of supervised release. For the following reasons, we will affirm.
1. Background
On October 31, 2000, Brown pled guilty to one count of bank robbery, in violation of 18 U.S.C. § 2113(a), in the United States District Court for the District of South Carolina. He was sentenced to a period of incarceration and, of significance here, to three years of supervised release. The court placed several conditions on Brown’s supervised release, including a prohibition on the excessive use of alcohol and the unlawful use or possession of any controlled substance, and a requirement that Brown participate in a drug abuse testing and treatment program. After Brown’s release from prison, jurisdiction over his supervised release was transferred to the United States District Court for the Western District of Pennsylvania (the “District Court”) on July 9, 2007.
At a hearing on August 27, 2008, the District Court heard evidence that the Commonwealth of Pennsylvania had charged Brown with driving under the influence of alcohol, that Brown had tested positive for and admitted to using marijuana, and that Brown had refused to participate in a drug abuse testing and treatment program. The Court concluded that Brown had violated several conditions of his supervised release, and it thus revoked that release.1 It sentenced Brown to seven months imprisonment and an additional twelve-month period of supervised release. The Court also added two additional conditions of supervised release, requiring Brown to complete an in-patient drug and alcohol treatment program, and prohibiting Brown from the purchase, possession, or consumption of alcohol.2
*485Brown served the prison term imposed and began serving his one-year period of supervised release in early 2009. However, on February 26, 2009, his probation officer filed a petition seeking to again revoke Brown’s supervised release. On March 18, 2009, another revocation hearing was held, during which Brown admitted to (1) submitting one falsified urine sample and two urine samples that had tested positive for marijuana, (2) drinking alcohol, (3) failing to attend counseling or treatment programs, and (4) moving without notifying his probation officer. Based on those violations of the conditions of his second term of supervised release, the District Court revoked the release and prepared to impose a new sentence.
The Court heard sentencing arguments from both the government and Brown. Brown requested a variance from the Sentencing Guidelines based on his multiple health problems,3 claiming that a prisoner in his situation would not receive adequate medical treatment. In response, the government contended that Brown’s history in prison showed that he had “a number of medical problems that have been adequately dealt with by the Bureau of Prisons.” (App. at 12.) The government also argued for a harsher sentence than Brown received after his first supervised release violation because, not only had he refused drug and alcohol treatment on several occasions, he had refused to comply with the Court’s prior efforts to limit his intake of alcohol. The government also observed that Brown had filed a motion pursuant to 28 U.S.C. § 2255 because “[h]e felt that [the court’s prohibition on his use of alcohol] violated his constitutional right to liberty, property and pursuit of happiness, serving no judicial purpose.” (App. at 13.) Finally, the government told the Court that Brown had a pending a DUI charge from Venango County, Pennsylvania, that involved his narrowly avoiding running over children.
The Court concluded that Brown’s infractions constituted Grade C supervised release violations under U.S.S.G. § 7Bl.l(b), that his criminal history category was V, and that his Guidelines range for the release violations was seven to thirteen months imprisonment. The court then noted its intent to sentence Brown to nine months imprisonment and another year of supervised release.4 It addressed the sentencing factors enumerated in 18 U.S.C. § 3553(a) and offered the following explanation of the sentence:
First of all, ... as I think the record reflects, there is no factual dispute as to the violations. What we have here is an inability and/or unwillingness on the part of this defendant to comply with the conditions of supervised release, particularly insofar as it relates to attending required treatment sessions, abstaining from use of alcohol and/or drugs. I should note parenthetically that this is the second time through here on a revocation, the first time having been revoked for similar conduct with a sentence of seven months imposed.
*486I consider supervised release violations, particularly a second round of supervised release violations serious, because it impacts in a certain way on the integrity of the whole system and it is problematic.
I also consider in a case like this the need for deterrence, that is to send an appropriate message to other individuals on supervised release that there are consequences in violating. Hereto, given what appears to be a significant alcohol problem and one that either this defendant has been unable or unwilling to really meaningfully come to terms with, there is a safety issue here which I see .... primarily safety to the public in general.
I’ve also considered the need to avoid ... sentencing disparities between similarly-situated defendants.
As I said to Mr. Brown at the outset, I am by no means unsympathetic with these health issues, but I do not see that the lay of the land has changed appreciably there in terms of what his health situation was before and what his health situation is now.... But with your Hepatitis C and you indicated a potential cirrhosis problem, probably the healthiest place for you for a period of time is off the street where you won’t be drinking and punishing yourself that way. Where you can get some medical treatment because I’m absolutely convinced that you have absolutely no intention, at least at the present time and I’m holding out hope in the future that you will, I’ve seen no indication up to this point in time that you have any indication of stopping drinking or using drugs period. And that’s just the long and the short of it.
(App. at 17-18.) Neither Brown nor his counsel raised any objection during the sentencing hearing.
Brown did, however, file this timely appeal. He asks us to vacate his sentence and remand the case for three reasons. First, he claims that his sentence was unreasonable because the “District Court did not adequately address all the factors of 18 U.S.C. § 3553(a), such as [his] medical history and characteristics ... as well as possible sentencing disparities with other similarly situated defendants.” (Appellant’s Op. Br. at 15.) Second, he argues that the imposition of another year of supervised release created an unwarranted disparity between him and other similarly situated defendants.5 Finally, he maintains that certain statements made by the government at sentencing were unduly prejudicial.
II. Discussion6
In general, we review a criminal defendant’s sentence for reasonableness. Gall v. United States, 552 U.S. 38, 46, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007); see also United States v. Bungar, 478 F.3d 540, 543 (3d Cir.2007) (holding that reasonableness review applies “to a sentence imposed upon a revocation of supervised release”). However, when a defendant fails to preserve an objection, we review the district court’s decision for plain error. See United States v. Watson, 482 F.3d 269, 274 (3d Cir.2007); see also United States v. Grier, 475 F.3d 556, 571 n. 11 (3d Cir.2007) (“An objection to the reasonableness of [a] final *487sentence will be preserved if, during sentencing proceedings, the defendant properly raised a meritorious factual or legal issue relating to one or more of the factors enumerated in 18 U.S.C. § 3553(a).”).
Brown contests the reasonableness of his sentence and also asserts that the sentencing hearing was infected by the consideration of inadmissible evidence. We consider each of those arguments in turn.
A The Reasonableness of Brown’s Sentence
When evaluating the reasonableness of a sentence imposed on a criminal defendant, our analysis involves two levels of inquiry. We begin by determining whether the district court “committed [any] significant procedural error.” Gall, 552 U.S. at 51,128 S.Ct. 586. Upon determining that the sentence is “procedurally sound,” we consider whether the sentence is substantively reasonable. Id.
A district court’s “fail[ure] to consider the § 3553(a) factors” can create a procedurally unreasonable sentence. United States v. Levinson, 543 F.3d 190, 195 (3d Cir.2008) (quoting Gall, 552 U.S. at 51, 128 S.Ct. 586). Indeed, we have held that the “touchstone of ‘reasonableness’ is whether the record as a whole reflects rational and meaningful consideration of’ those factors. Grier, 475 F.3d at 571. Although Brown attacks the District Court’s consideration of the § 3553(a) factors on three fronts, we are satisfied that the sentencing decision was proper.
First, Brown claims that the District Court failed to adequately consider whether the sentence would address his health needs. Next, he asserts that the Court did not adequately address the need to avoid unwarranted sentencing disparities among similarly situated defendants, and he argues that the sentence actually caused a disparity between him and other defendants sentenced for violating supervised release conditions. Finally, Brown alleges that the District Court considered public safety as a factor when there was no evidence that the Court could properly consider in that regard.
As to the first argument, the District Court’s consideration of Brown’s health problems was more than sufficient. Before sentencing, the Court inquired into the issue and said to Brown: “I am by no means unsympathetic with your medical conditions.” (App. at 16.) Then, in explaining the sentence, the Court reiterated those sentiments, as quoted above. Thus, it explicitly addressed Brown’s health issues, including the specific concerns he raised.
Second, there was no error in the District Court’s treatment of potential sentencing disparities. Brown has not pointed us to anything in the record indicating that he raised a question about a potential disparity, nor have we found any preservation of that issue in the record. Assuming he had preserved the issue for appeal, however, it was sufficient for the Court to say, as it did, that it had considered the need to avoid unwarranted sentencing disparities between similarly-situated defendants. Without any specific disparity having been raised, the District Court cannot be faulted for simply noting that it had given the issue due consideration. Cf. United States v. Lessner, 498 F.3d 185, 203 (3d Cir.2007) (“A sentencing court need not make findings as to each factor if the record otherwise makes clear that the court took the factors into account.”).
Furthermore, we find no merit in Brown’s present claim that the District Court created an actual disparity between him and other similarly situated defendants. Brown contends that several cases from district courts within our Circuit reveal “a pattern of terminating supervised release following a term of imprisonment *488imposed for a violation of supervised release.” 7 (Appellant’s Op. Br. at 20.) A disparity exists, Brown claims, because the defendants in those eases were sentenced only to terms of imprisonment after their terms of supervised release were revoked, while his sentence includes both a term of imprisonment and an additional term of supervised release. Passing once again the question of whether he adequately preserved his argument for appeal, the argument nevertheless fails because he has not pointed to any disparity between himself and a defendant whose “circumstances exactly paralleled” his. United States v. Charles, 467 F.3d 828, 833 n. 7 (3d Cir. 2006). Although Brown has cited to cases where other defendants were not sentenced to additional terms of supervised release after violating conditions of their supervised release, he has not brought to our attention any instance where this is true for a defendant sentenced after a second violation of supervised release who posed a threat to society because of an unwillingness or inability to control addictions to alcohol or drugs. He has, in short, failed to note any evidence of an actual disparity.
Finally, the District Court’s consideration of public safety was proper because it had ample reason to conclude that Brown posed a threat to the public. This was Brown’s second violation of supervised release and both violations involved Brown’s use of alcohol and drugs. The Court knew that Brown had been charged by the Commonwealth of Pennsylvania with driving under the influence of alcohol, and it further knew that attempts to remedy Brown’s addictions through treatment had proven unsuccessful. Based on that evidence, none of which is contested, the District Court was well within the bounds of its discretion to base Brown’s sentence, in part, on the need to protect the public.
Because the District Court’s decisions regarding the § 3553(a) factors were adequate, Brown’s sentence was reasonable. Brown has not directed our attention to any other issue that he contends undermines the reasonableness of the sentence, either procedurally or substantively, and we can discern none.
B. Statements Made by the Government at Sentencing
Brown next urges us to vacate his sentence based on four statements made by the government at the March 13, 2009 hearing, statements that he now claims were improper for the District Court to have considered in that setting. The specific statements are as follows: (1) “As you know, there is a 2255 [motion] pending .... [whereby Brown protested the imposition of] a condition that [he] cannot possess or use or consume alcohol;” (2) “I would remind the court that [Brown] has still pending a DUI ... [where] there were a number of children that were by the road that he is alleged to have narrowly” missed hitting; (3) “[Brown] has also ... refused at various times to take treatment” in violation of the conditions of his supervised release; and, (4) Brown has “had a number of medical problems that *489have been adequately dealt with by the Bureau of Prisons.” (App. at 12-13.)
Since Brown did not raise before the District Court his current objections to the government’s statements, he is entitled to relief only if the Court committed plain error by considering them. See Watson, 482 F.3d at 274. Further, even if we find plain error, we must allow the decision to stand unless the error affects substantial rights, United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993), and “seriously affects the fairness, integrity or public reputation of judicial proceedings.” Id. (quoting United States v. Young, 470 U.S. 1, 15, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985) (internal quotations omitted)).
Brown claims that the District Court’s consideration of the statements made by the government amounts to plain error because, in considering them, the court deviated from the Federal Rules of Evidence. Specifically, Brown’s objection is to the relevance and reliability of the statements because they do not “directly relate[ ] to the revocation of Brown’s supervised release” and “there was no evidence (hearsay or otherwise) presented at the hearing of the ... behavior” alluded to by the government’s statements. (Appellant’s Op. Br. at 19.)
We can dispose of this argument with little discussion. It is fundamental that “[t]he Federal Rules of Evidence do not apply in sentencing proceedings.” United States v. Miele, 989 F.2d 659, 663 (3d Cir.1993). Indeed, “in resolving any dispute concerning a factor important to the sentencing determination, the court may consider relevant information without regard to its admissibility under the rules of evidence applicable at trial, provided that the information has sufficient indicia of reliability to support its probable accuracy.” United States v. Yeaman, 194 F.3d 442, 463 (3d Cir.1999) (quoting U.S.S.G. § 6A1.3) (alteration omitted) (internal quotation omitted). In this case, the District Court did not err by considering the four statements complained of, because each was relevant and reliable. It is telling that no objection was made at the time the statements were made, and more telling still that no evidence has been proffered to show that any of the statements was less than entirely accurate.
III. Conclusion
For the foregoing reasons, we will affirm the sentence imposed by the District Court.
. A district court may revoke a sentence of supervised release pursuant to 18 U.S.C. § 3583(e) if the court "finds by a preponderance of the evidence that the defendant violated a condition of supervised release." That section also gives a district court authority to fashion a new sentence for a defendant whose sentence of supervised release has been revoked. Id.
. On October 27, 2008, Brown filed a pro se motion pursuant to 28 U.S.C. § 2255 to vacate the sentence, arguing that preventing him from purchasing, possessing or consum*485ing alcohol violated his due process rights. That motion is still pending before the District Court.
. Of his health problems, Brown said: "I have Hepatitis, which is a terminal illness. I’m bipolar, I'm manic depressive. I'm paranoid schizophrenic. I have panic and anxiety attacks. I also have a herniated disc in my cervical, thoracic and lumbar in my back. A herniated disc which resulted in spinal steno-sis. And I also have scoliosis of the back. And more likely than not, I’m being checked on this, I probably have cirrhosis of the liver.” (App. at 10-11.)
. Under 18 U.S.C. § 3583(h), "[w]hen a term of supervised release is revoked and the defendant is required to serve a term of imprisonment, the court may include a requirement that the defendant be placed on a term of supervised release after imprisonment.”
. Brown’s argument concerning a perceived disparity between himself and similarly situated defendants is in essence a subset of the first argument because both arguments allege that the District Court failed to adequately consider the sentencing factors listed in 18 U.S.C. § 3553(a). Accordingly, we will address this argument in our discussion of the reasonableness of Brown’s sentence.
. The District Court had subject matter jurisdiction in this case under 18 U.S.C. § 3231. We have jurisdiction under 28 U.S.C. § 1291.
. The cases cited to by Brown on this point include: United States v. Brightful, 444 F.Supp.2d 337 (E.D.Pa.2006); United States v. Washington, 455 F.Supp.2d 299 (E.D.Pa.2006); United States v. Leach, 397 F.Supp.2d 599 (E.D.Pa.2005); United States v. Hudicek, 406 F.Supp.2d 559 (E.D.Pa.2005); United States v. Rafeh, 274 F.Supp.2d 690 (E.D.Pa.2003); United States v. Thompson, 240 F.Supp.2d 325 (E.D.Pa.2003); United States v. Bibbs, 252 F.Supp.2d 170 (E.D.Pa.2003); United States v. Evans, 208 F.Supp.2d 538 (E.D.Pa.2002); United States v. Segars, 226 F.Supp.2d 686 (E.D.Pa.2002); United States v. Nelson, 221 F.Supp.2d 576 (E.D.Pa.2002); United States v. Bell, 171 F.Supp.2d 487 (E.D.Pa.2001). United States v. Tyler, 98 F.Supp.2d 641 (E.D.Pa.2000).
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*496OPINION OF THE COURT
PER CURIAM.
Shi Qing Lin has filed a petition for review of the final order by the Board of Immigration Appeals (“BIA”) affirming the Immigration Judge’s (“IJ’s”) denial of Lin’s requests for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). For the reasons that follow, we will deny the petition for review.
The parties are familiar with the background of this case, and so we provide only a summary of the proceedings. Lin is a native and citizen of the People’s Republic of China who arrived in the United States in April 2005. He was placed in removal proceedings for being an alien present in the United States without being admitted or paroled after inspection by an immigration officer (8 U.S.C. § 1182(a)(6)(A)(i)). He conceded removability. In November 2005, he applied for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”) as a Falun Gong practitioner. The IJ held an evidentiary hearing on Lin’s claims on May 18, 2007.
Lin testified about his involvement with Falun Gong. He stated that he had mild arthritis during childhood, and the condition persisted despite visits to about twelve doctors of Chinese and Western medicine. His maternal uncle introduced him to the practice of Falun Gong, and after study and practice, his arthritic condition substantially improved. In July 1999, his uncle warned him that the Chinese government had banned the practice of Falun Gong. In August 1999, Lin was arrested at home and was taken into detention for a month. During his detention, he was interrogated and beaten, receiving superficial injuries for which he did not seek medical treatment. He was detained with several other Falun Gong practitioners, and he was released only after he signed a document renouncing Falun Gong and promising that he would no longer practice Falun Gong. Lin secretly continued his Falun Gong practice at home, and he stated that village cadres made periodic home checks through 2003. He continued to practice Falun Gong less often, once every two weeks, because he needed to allot more time for his family, and his arthritis was basically cured at that time. He did not leave China until April 2005, waiting until then because he had to care for his mother, who had a stomach illness, and his younger sister was unable to assume care-giving duties until her school graduation.
On cross-examination, when asked for documentation regarding his consultation with twelve doctors in China for his arthritis, Lin stated that his mother attempted to find the doctors, but they all had relocated, died, or changed professions since the time of treatment. Also, Lin indicated that he did not know any of his fellow detainees very well. When confronted with a supporting letter by his uncle stating that he, too, was detained and saw Lin at the police station, Lin stated that his uncle was in another room and that he did not know of his uncle’s presence until later. When asked why he made no mention in his asylum application that his uncle was similarly detained, interrogated, and beaten, Lin stated that his application was his own personal matter. When pressed for an explanation, Lin explained that he did not mention his uncle’s detention in his application out of fear of getting his uncle into trouble. When reminded that he already had mentioned his uncle in his asylum application when describing how he was first introduced to Falun Gong, Lin simply affirmed that he had done so, but he stated that he did not understand why he should have mentioned his uncle’s detention.
In addition to his testimony, Lin submitted supporting documentation, including articles concerning country conditions in *497China with respect to Falun Gong, the 2006 State Department County Report for China, a recent X-ray and report concerning Lin’s right knee, articles concerning Falun Gong’s benefits for arthritic conditions, photographs of Lin at a Falun Gong rally in July 2006 in Washington, D.C., and letters from his mother and his uncle. On June 5, 2007, the IJ found that Lin lacked credibility, denied all forms of relief, and ordered Lin removed to China. On June 19, 2008, the BIA dismissed the appeal, adopting and affirming the portion of the IJ’s decision denying relief and supplementing the decision with respect to the adverse credibility determination. This petition for review followed.
We have jurisdiction to review the BIA’s final order of removal under 8 U.S.C. § 1252(a). Here, the BIA appears to have deferred to the IJ’s credibility determination in some respects, while also remarking that Lin’s explanations for certain credibility issues “may have some merit.” (BIA Jun. 19, 2008 Decision, A.R. 2.) Thus, we will review the IJ’s decision as supplemented by the BIA. See Xie v. Ashcroft, 359 F.3d 239, 242 (3d Cir.2004). Credibility determinations are reviewed under the substantial evidence standard. See id. at 243. Adverse credibility determinations based on speculation or conjecture, rather than on record evidence, are reversible. Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir.2002). Lin’s asylum application was filed after May 11, 2005, and thus the provisions of the REAL ID Act governing credibility determinations in asylum applications apply. See Chukwu v. Att’y Gen., 484 F.3d 185, 189 (3d Cir.2007). Under the REAL ID Act, an adverse credibility determination can be based on inconsistencies, inherent implausibilities, inaccuracies, and other factors, without regard to whether they go to the heart of an applicant’s claim. 8 U.S.C. § 1158(b)(1 )(B)(iii). The Court must uphold the credibility determination of the BIA unless “any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B).
Lin tacitly challenges the applicability of the REAL ID Act provision regarding credibility determinations, contending that the agency’s adverse credibility determination rests upon minor and immaterial discrepancies. We need not consider the effects of the new provisions, however, because we conclude that substantial evidence supports the adverse credibility determination on matters that concern the heart of Lin’s claim. For example, Lin argues that the IJ relied on inconsistencies between Lin’s asylum application and his testimony regarding his education, and between his airport interview by immigration agents and his testimony regarding his delayed departure from China. We note that the BIA appears not to have emphasized these aspects of the IJ’s decision and instead affirmed the adverse credibility finding on other grounds. Specifically, the BIA discussed the discrepancy between Lin’s testimony that he was not very familiar with anyone who was detained with him during his 1999 arrest and Lin’s uncle’s letter indicating that he and Lin had been detained at the same location and time.1 *498Moreover, the BIA rejected Lin’s subsequent explanation that he did not want to risk revealing his uncle’s Falun Gong activities in his written asylum affidavit, pointing out that Lin already had implicated his uncle’s Falun Gong practice in the affidavit. We conclude that the record contains substantial evidence to support the adverse credibility finding and does not compel a contrary finding.2
In sum, we discern no reason to disturb the agency’s denial of asylum and withholding of removal. Lin presents no argument regarding his claim for protection under the CAT. We deem any challenge to the denial of CAT relief to be waived.
We will deny the petition for review.
. The BIA remarked on Lin's lack of credibility regarding his testimony that he did not see his uncle at the police station, noting that "the excuse that the uncle was in a different room and [Lin] did not see him is belied by the uncle’s statement that he saw [Lin].” (BIA Jun. 19, 2008 Decision, A.R. 2.) We note that it is not impossible that Lin's uncle could have seen Lin from a different room without also being seen by Lin; Lin could have had his head turned away from his uncle at the time. Yet this comment by the BIA is inconsequential to its point that Lin knew of his uncle’s detention but omitted that detail from both his application for relief and his testimo*498ny, and his inadequate explanation for the omission reflects negatively on his credibility.
. Because substantial evidence supports the adverse credibility finding, we need not reach Lin's argument that the IJ made unreasonable demands for corroborating evidence in support of his claims. *501holds that, to establish "exceptional and extremely unusual hardship,” an alien must show that the qualifying relative would suffer hardship "substantially beyond” that which would be expected to result from removal. 23 I. & N. Dec. at 60.
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OPINION OF THE COURT
PER CURIAM.
Maritza Ramos De Herrera (“Ramos”), a thirty-four-year-old native and citizen of Guatemala, seeks review of a final order of removal entered by the Board of Immigration Appeals (“BIA”). We will deny the petition for review.
I.
Ramos entered the United States in 1994 without inspection, and filed an application for asylum at that time. In 2006, the government served a Notice to Appear, and Ramos filed an updated asylum application. At a hearing before an Immigration Judge (“IJ”), Ramos conceded re-movability as an alien present without being admitted or paroled, and she pursued applications for asylum, withholding of removal, relief under the Convention Against Torture (“CAT”), and cancellation of removal under 8 U.S.C. § 1229b(b)(l). The IJ denied relief, finding that Ramos failed to meet her burden of proof, but granted voluntary departure.
The BIA affirmed, issuing its own decision. The BIA explained that Ramos sought asylum based on a claim that she suffered past persecution on account of her membership in a particular social group, which she defined as “young Guatemalan females targeted for recruitment by the guerillas and who suffered persecution of a sexual nature if they refused to assist the guerillas.” While the evidence showed that Ramos was harassed and threatened by guerillas in Guatemala, she was never harmed physically or sexually, and thus the BIA concluded that Ramos is not a member of the group she is attempting to define, and that, furthermore, the alleged group lacks social visibility. The BIA held that Ramos failed to provide sufficient evidence that the threats she received rose to the level of persecution. The BIA also found insufficient evidence of a well-founded fear of future persecution. Even assuming that Ramos could establish the existence of her particular social group, the BIA held that Ramos is not currently a member of that group because she has matured in age since 1994, was never harmed by the guerrillas, and has not es*500tablished that females of her age face the same threats as females of grade school age. The BIA also held that Ramos failed to meet the more stringent burden of proof for -withholding of removal, and did not establish under the CAT that she more likely than not faces torture in Guatemala.
Finally, the BIA held that Ramos did not meet her burden of proof for cancellation of removal, which she sought based on a claim that her six-year-old United States citizen son would suffer “exceptional and extremely unusual hardship” if removed. The BIA noted the record evidence of diminished educational opportunities, poor health care, a lower living standard, and crime in Guatemala, and also considered the child’s relative youth, ability to speak Spanish, good health, and family support in Guatemala. Based on this evidence, the BIA held that Ramos did not show an exceptional and extremely unusual hardship. Ramos timely filed a petition for review in this Court.
II.
We first consider our jurisdiction. We have jurisdiction to review the BIA’s final order of removal, including the denials of asylum, withholding of removal, and CAT relief. See 8 U.S.C. § 1252(a)(1). However, despite Ramos’s argument to the contrary, we lack jurisdiction to review the denial of cancellation of removal under § 1229b(b)(l). “This Court generally lacks jurisdiction to review discretionary decisions made under § 1229b regarding cancellation of removal.” Mendez-Reyes v. Att’y Gen., 428 F.3d 187, 189 (3d Cir.2005) (citing 8 U.S.C. § 1252(a)(2)(B)(i)). We have held that a determination regarding the “exceptional and extremely unusual hardship” requirement is a “quintessential discretionary judgment.” Mendez-Moranchel v. Ashcroft, 338 F.3d 176, 179 (3d Cir.2003). Jurisdiction is retained in such cases only to consider “constitutional claims or questions of law.” 8 U.S.C. § 1252(a)(2)(D).
Ramos contends that she raises a “question of law” because the BIA held her claim to a “heightened legal standard” by “ignoring] the cumulative effect” of the hardships that her son would face. A review of Ramos’s briefing, however, reveals that her argument amounts to no more than an attempt to reargue the persuasiveness of the hardship evidence. Such an argument is not exempt from the jurisdictional bar. See Mendez-Moranchel, 338 F.3d at 179 (“[W]e lack jurisdiction to review the issue Mendez presents on appeal — whether the [BIA] and [IJ] were correct in determining that he does not meet the hardship requirements for cancellation of deportation.”). We see no indication that the BIA applied an incorrect legal standard here, and the BIA cannot be said to have applied an impermissibly “heightened” standard merely because it chose to deny relief after considering the record evidence before it.1 Thus, we lack jurisdiction to review the denial of cancellation of removal.
*501III.
Turning to the removal order, where, as here, the BIA rendered its own decision, we review the BIA’s decision, not the IJ’s decision.2 See Wong v. Att’y Gen., 589 F.3d 225, 230 (3d Cir.2008). “The BIA’s conclusions regarding evidence of past persecution and the well-founded fear of persecution are findings of fact,” reviewed solely for “substantial evidence.” Chavar-ria v. Gonzalez, 446 F.3d 508, 515 (3d Cir.2006). Under the deferential substantial evidence standard, the BIA’s findings “must be upheld unless the evidence not only supports a contrary conclusion, but compels it.” Abdille v. Ashcroft, 242 F.3d 477, 484 (3d Cir.2001).
We first address Ramos’s asylum claim. The Attorney General may grant asylum if the alien establishes that she is a “refugee,” which requires the alien to prove that she was persecuted in the past or has a well-founded fear of future persecution due to, inter alia, membership in a particular social group. 8 U.S.C. § 1158(b)(l)(B)(i). A “particular social group” refers to “a group of persons all of whom share a common, immutable characteristic.” Lukwago v. Ashcroft, 329 F.3d 157, 171 (3d Cir.2003) (quotation marks omitted). “[W]hatever the common characteristic that defines the group, it must be one that members of the group either cannot change, or should not be required to change because it is fundamental to their individual identities or consciences.” Id. (quotation marks omitted).
Ramos argues that the BIA erred in failing to recognize that she was subjected to past persecution based on membership in a particular social group (“young Guatemalan females targeted for recruitment by the guerillas and who suffered persecution of a sexual nature if they refused to assist the guerillas”), and that she is therefore entitled to a presumption of future persecution. The record, however, does not compel a conclusion contrary to that reached by the BIA.
As the BIA observed, the group that Ramos attempts to define comprises females who suffered sexual abuse or harm if they refused assistance to the guerillas. But Ramos does not claim that she was harmed physically or sexually.3 In 1986, when she was age twelve, guerillas began verbally harassing and threatening Ramos as she left school each day, claiming that they would kill Ramos and her family if they refused support for the guerillas. Ramos claims that the guerillas forced some of her schoolmates to serve as prostitutes, and that they were raped and tortured. Ramos quit high school and remained in fear of the guerillas even after she married in 1990.4 Ramos fears re*502turning to Guatemala because “people” will know that she was in the United States, and that she will be kidnapped or killed. This record simply does not compel a finding that Ramos is or was a member of the group that she seeks to define (assuming, arguendo, that Ramos’s proposed group could qualify as a “particular social group” for asylum purposes).
Ramos argues that the threats she endured rise to the level of past persecution because “the threats against [her] were sufficiently imminent and serious.” This Court has held that “unfulfilled threats must be of a highly imminent and menacing nature in order to constitute persecution.” Li v. Att’y Gen., 400 F.3d 157, 164 (3d Cir.2005). Our review of the record does not compel a finding that the threats against Ramos rise to this level. Although the threats that Ramos received are troubling, they were not “sufficiently imminent or concrete ... to be considered past persecution.” Id. at 165 (rejecting claim that threats of physical mistreatment, detention, or sterilization amounted to past persecution where neither the alien nor members of his family were actually imprisoned, beaten, sterilized, or otherwise physically harmed); see also Chavarria, 446 F.3d at 518 (“[W]e have refused to extend asylum protection for threats that, while sinister and credible in nature, were not highly imminent or concrete or failed to result in any physical violence or harm to the alien.”). Further, because Ramos failed to establish past persecution, the BIA correctly held that she was not entitled to a presumption of a well-founded fear of future persecution.
Finally, Ramos claims that the BIA erred in failing to grant CAT relief.5 Ramos alleges that she will likely be tortured or killed in Guatemala by “guerillas or by members of other criminal groups,” “especially when the criminal elements realize that she has been in the United States and will think that she is wealthy.” To be eligible for withholding of removal under the CAT, Ramos had to show that it is more likely than not that she would be tortured in Guatemala. See 8 C.F.R. § 208.16(c)(2); Sevoian v. Ashcroft, 290 F.3d 166, 174-75 (3d Cir.2002). Torture is defined as the intentional infliction of severe pain or suffering “by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.” 8 C.F.R. § 208.18(a)(1). “In order to constitute torture, an act must be specifically intended to inflict severe physical or mental pain or suffering.” Pierre v. Att’y Gen., 528 F.3d 180, 186 (3d Cir.2008) (en banc). That act must be “ ‘inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.’” Id. at 189 (quoting 8 C.F.R. § 208.18(a)(1)). It is not enough for public officials to be “willfully blind” to torturous acts; the officials must “have the goal or purpose of inflicting severe pain or suffering.” Id. at 190.
The record here does not compel a finding that Ramos more likely than not will be tortured by guerillas or members of other groups, or that the Guatemalan government would turn a blind eye to such activity. Although the 2006 State Department Report in the record indicates that *503crime remains a widespread problem in Guatemala, Ramos points us to no record evidence that uncontrolled “criminal elements” in Guatemalan society are likely to torture a national returning from the United States because they perceive her as wealthy.
IV.
For the foregoing reasons, we will deny the petition for review.
. The BIA cited and relied upon the standards set forth in In re: Gonzalez Recinas, 23 I. & N. Dec. 467 (BIA 2002) (en banc), In re: Andazola-Rivas, 23 I. & N. Dec. 319 (BIA 2002) (en banc), and In re: Monreal-Aguinaga, 23 I. & N. Dec. 56 (BIA 2001). After considering the relevant factors identified in these cases, the BIA concluded: "While adjusting to life in Guatemala may be difficult for [Ramos]'s son, his youth, health, ability to communicate in Spanish, and access to family should help him through his adjustment period.” Ramos contends that the BIA in effect required her to show that removal would work an "unconscionable” hardship on her son. However, nothing in the BIA’s decision indicates that it deviated from its established standards or required a showing from Ramos beyond that normally required to establish an "exceptional and extremely unusual hardship.” Indeed, the BIA’s decision is consistent with In re: Monreal-Aguinaga, which
. Ramos's suggestion that the BIA "adopted" the IJ's decision is not supported by the record. The BIA clearly conducted its own analysis, and thus our review is limited to the BIA’s decision.
. The BIA did not make a determination that Ramos lacked credibility (nor did the IJ), and thus we treat Ramos's testimony as credible. See 8 U.S.C. § 1158(b)(l)(B)(iii) ("[I]f no adverse credibility determination is explicitly made, the applicant or witness shall have a rebuttable presumption of credibility on appeal.”).
.Ramos married in Guatemala but has since separated from her husband, who also came to the United States and was placed in removal proceedings. Notably, Ramos asserts in her briefing that her husband was "once shot by the guerillas,” but this appears to misstate the record. In her testimony before the IJ, Ramos stated that the guerillas once “fol*502lowed [her husband] and they shot at him.” A82 (emphasis added). There is no evidence that the guerillas ever shot her husband.
. Although Ramos suggests in passing in her opening brief that the BIA erred in rejecting her application for withholding of removal under 8 U.S.C. § 1231(b)(3)(A), she sets forth no argument on the issue. We deem this issue waived and do not address it. See Lie v. Ashcroft, 396 F.3d 530, 532 n. 1 (3d Cir. 2005).
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Dismissed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Renee R. Berry appeals the district court’s order dismissing without prejudice Berry’s civil complaint. We have reviewed the record and find no reversible error. *514Accordingly, we deny leave to proceed in forma pauperis and dismiss the appeal for the reasons stated by the district court. Berry v. Locke, No. 1:08-cv-00697-JCC-TRJ (E.D.Va. June 5, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
DISMISSED.
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OPINION OF THE COURT
NYGAARD, Circuit Judge.
Because our opinion is wholly without precedential value, and because the parties and the District Court are familiar with its operative facts, we offer only an abbreviated recitation to explain why we will affirm the order of the District Court.
Lloyd’s of London issued a commercial general liability policy to Angela Rawlins d/b/a Bunker Hill Hotel. The policy contained general liability provisions that covered bodily injuries or property damage caused by an occurrence within the coverage territory. Among the endorsements modifying the policy was one that stated that the insurance policy does not apply to assault and battery, regardless of intent, or any act or failure to prevent or suppress such assault and battery or physical altercation “caused by the insured, an employee, a patron or any other person.” The policy also excluded damages arising out of “allegations of ... any act, error or omission relating to such assault and/or battery or physical altercation.”
Lloyd’s filed a declaratory judgment action, and the instant summary judgment motion, to establish that it did not have a duty to defend the insured in actions brought by a representative of Sherrit James, deceased, and Daren Stevens who had rented a room at the hotel. Our review is plenary. Torretti v. Main Line Hospitals, Inc., 580 F.3d 168, 172 (3d Cir.2009).
The underlying suits arose from the murder of James and the gunshot wounds sustained by Stevens when they were in their room at the hotel. The murder and wounds were at the hand Joel Dowdye, a former police detective, who was previous*455ly in a relationship with James. The complaints allege negligence against the hotel, its employees and agents. Specifically, the complaints assert that the hotel negligently allowed Dowdye into the hotel, told him the room in which Stevens and James could be found, and failed to warn Stevens and James that Dowdye was on the premises.
The District Court determined that the policy language expressly excludes the liability asserted in the underlying case against the Bunker Hill Hotel. As a result, the District Court ruled in favor of Lloyd’s, establishing that it does not have a duty to defend the insured against the liability asserted by Stevens and the representative of James. After a thorough review of the record, we agree with the District Court’s ruling.
Therefore, for essentially the same reasons expressed by the District Court we will affirm the order.
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OPINION OF THE COURT
VAN ANTWERPEN, Circuit Judge.
Appellant Edward Basley appeals three of his convictions arguing the evidence presented was insufficient to support the verdicts. He further appeals the District Court’s determination that his sentence qualified for an enhancement because it found he had a prior conviction, and Bas-ley contends such a judge-made finding violates the Sixth Amendment. Additionally, he appeals the District Court’s sentence as unreasonable. For the following reasons, this Court will affirm the District Court’s judgment and sentence.
I.
Because we write solely for the parties, we will only address those facts necessary to our opinion.
Darren Cameron began cooperating with the government after police discovered a significant amount of drugs at his residence in September 2004. He told the officers he had obtained nine ounces of cocaine from Basley, for which he still owed $6,250, and the rest from Robert Wright, for which he owed $11,000. A Drug Enforcement Agency (“DEA”) task force provided Cameron with funds to repay Wright and Basley. Between 2004 and 2005, Cameron met with Wright thirteen times and Basley once to repay his debts. During each meeting Cameron wore a recording device.
In April 2005, Cameron recorded a conversation during which Basley offered to sell him cocaine, but Cameron declined. On May 2, 2005, Cameron called Wright to purchase cocaine, but Wright was unable to satisfy the request. Moments later, Basley called Cameron offering to sell him the requested amount. Later that day, Cameron met Basley who fronted him cocaine in exchange for a promise to pay him $3,000. Subsequently, Cameron wore a recording device while meeting Basley twice to repay him for the fronted cocaine. In the meetings, Basley discussed issues related to drug distribution and told Cameron a story about when police impounded his car containing a .45 caliber gun (known as a Glock), cocaine base, and marijuana. *457When Basley retrieved his car, his contraband was still inside.
On July 8, 2005, Basley called Cameron, who was in the presence of a DEA task force officer, to inform him he had cocaine.1 At the officer’s direction, Cameron went to meet Basley on Clapier Street in Philadelphia, Pennsylvania. Basley invited Cameron into his Chevy Avalanche and showed him five kilos of cocaine, wrapped in tan tape, inside a black duffle bag. Bas-ley told Cameron that he planned to give two kilos to his brother. Subsequently, Cameron reported what transpired and the DEA task force set up surveillance at two locations: (1) Clapier Street and Wayne Avenue, and (2) on 5343 Darrah Street in Philadelphia, where Basley had been seen during a previous surveillance.
Officer Sarris surveyed 5343 Darrah Street. At around 3:00 p.m. on July 8, 2005, he saw Basley and another male arrive in an Avalanche. Basley was holding a black duffle bag in his right hand. Basley used a key to open the door to 5343 Darrah Street, and then, still holding the duffle bag, he and the other male went inside. Basley was inside the house for a little over two hours, during which a woman and three men arrived separately. All four knocked to gain entrance. Officer Sarris testified that he saw Basley leave, accompanied by two men. Officer Sarris admitted that no attempt was made to determine the identity of the other subjects. Then, several officers entered the premises to execute a search warrant.
The house at 5343 Darrah Street has a basement, a main floor with a combination living room/dining room area and a kitchen, and a second floor with two bedrooms. Officer Rehr searched the basement and recovered a black duffle bag, which Cameron and Officer Sarris identified as Bas-ley’s. Inside there was one kilo of cocaine wrapped in tan tape, and one large Ziploc bag which contained five smaller bags, each containing 125 grams of cocaine.2 An officer recovered three empty tan wrappers from the basement garbage can and Cameron identified photos of those wrappers as the same wrapping he saw on the kilos in the black duffle bag.
Office Sarris searched the stairwell area leading to the basement. Just inside the doorway of the stairwell he found a box of baking power, two digital gram scales with drug residue, a learner’s permit for Basley,3 and other drug paraphernalia. Another officer found a bag near the staircase containing various drug paraphernalia, as well as two smaller bags of what was later determined to be 107 grams of cocaine base (crack).4
Office Sarris also searched the living room/dining room area and found various documents and photographs of Basley’s, including, among other things: (1) a photograph of Basley and Wright, (2) a letter addressed to Basley with tally work on the back, (3) a receipt with Basley’s name on it, (4) an envelope addressed to Basley, (5) a personal card addressed to Basley, (6) an auto-insurance policy for Basley addressed *458to 5343 Darrah Street, and (7) an envelope from the Pennsylvania Department of Transportation addressed to Edward Bas-ley. A DEA officer found a nine-millimeter Beretta with a round in the chamber and obliterated serial numbers under baby clothes in a red wicker basket. The basket was on the floor in a seating area near the kitchen table. There were no fingerprints on the gun or magazine. Senior Narcotics Agent John Cohen testified, as an expert witness, that it was consistent with his experience that drug dealers kept loaded firearms in their homes to protect themselves and their drug enterprise. He conceded a “sloppy” person might also keep a loaded gun in the house.
Officer Arnold searched the upstairs bedrooms. In the front bedroom, Officer Arnold found items on a dresser including: (1) a Pennsylvania identification card with Basley’s name and address on it, (2) two men’s watches, (3) a chain with a large diamond-encrusted “B” on it, (4) a Com-cast bill for 5343 Darrah Street in Basley’s name, (5) a Visa card in Basley’s name, (6) Basley’s social security card, (7) an application for a Visa card in Basley’s name, (8) a letter regarding a Mastercard addressed to Basley at Clapier Street, and (9) a handwritten note addressed to “B.” In a dresser drawer, the officer found a loaded Glock Model 3045 semi-automatic handgun and an extended magazine. Men’s T-shirts were in the dresser drawer with the gun. No fingerprints were recovered from the Glock or the magazine.5
Basley was arrested on November 7, 2004 when police officers pulled him over in the Avalanche. Officers conducted an inventory search and discovered a stolen, loaded Taurus pistol6 and a small quantity of narcotics in the cup holder.
On February 12, 2007, Basley and seven co-defendants went to trial facing a twenty-one count Superseding Indictment for drug and gun charges.7 Basley was named in seven counts: Counts Two and Four charged Basley with cocaine distribution in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C); Count Five charged Basley with possession with intent to distribute cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A); Count Six charged Basley with possession with intent to distribute cocaine in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B); Count Seven charged Basley with possession of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1); and Counts Eight and Twenty charged Basley with being a convicted felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1).
Before the jury returned its verdict, Basley made an oral motion for judgment of acquittal as to Count Seven, which was denied. The jury then convicted Basley as to Counts Four, Five, Six, Seven, Eight and Twenty, but acquitted him with respect to Count Two. On March 2, 2007, Basley filed a motion for acquittal pursuant to Federal Rule of Criminal Procedure 29(c). Although Basley reserved the right to supplement this motion, he never did, and it was denied.
The District Court sentenced Basley to 300 months’ incarceration, followed by ten years of supervised release, a $3,000 fine, and a $600 assessment. Basley filed a timely notice of appeal.
*459II.
The District Court had subject matter jurisdiction over this matter pursuant to 18 U.S.C. § 3231. This Court has appellate jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742.
This Court reviews de novo grants or denials of Rule 29 motions to acquit for insufficient evidence. United States v. Bobb, 471 F.3d 491, 494 (3d Cir.2006). If a defendant challenges the sufficiency of the evidence, but did not file a timely Rule 29 motion, then this Court reviews the sufficiency of the evidence for plain error. United States v. Powell, 113 F.3d 464, 466-67 (3d Cir.1997).
Basley moved for judgment of acquittal under Rule 29 twice: (1) on Count Seven on February 16, 2007, and (2) on all the convictions on March 2, 2007. The government contends that because the March 2, 2007 motion was particularly vague, merely stating that “the evidence presented by the government during its case in chief was insufficient to sustain the convictions,” it is insufficient to preserve the challenges raised.
Basley’s Rule 29 motion is sufficient to preserve these issues for review. Rule 29 only requires that a defendant “move for a judgment of acquittal, or renew such a motion, within 7 days after a guilty verdict.” Fed.R.Crim.P. 29(c)(1).8 It does not indicate that the defendant’s motion must be specific. Moreover, as this Court has only applied the plain error standard when a defendant failed to file a Rule 29 motion completely, to apply it when the motion is vague would be a marked expansion. See Powell, 113 F.3d at 467 n. 5.9 Basley’s motion, though vague, is sufficient to put the government on notice that he contests the sufficiency of the evidence. Therefore, this Court will review Basley’s challenges to the sufficiency of the evidence de novo, because he filed a timely Rule 29 motion. Fed.R.Crim.P. 29(c)(1).
When reviewing a jury verdict for sufficiency of evidence, this Court reviews the evidence in the light most favorable to the government and must sustain the verdict if any trier of fact could have found the essential elements of the crime beyond a reasonable doubt. United States v. Cunningham, 517 F.3d 175, 177 (3d Cir.2008).
This Court reviews sentences for abuse of discretion by examining the procedural and substantive reasonableness of the sentence imposed. United States v. Tomko, 562 F.3d 558, 567-68 (3d Cir.2009) (en banc). This Court exercises plenary review over constitutional challenges to a defendant’s sentence. United States v. Walker, 473 F.3d 71, 75 (3d Cir.2007).
III.
Basley challenges the sufficiency of the evidence for three of his convictions: (1) for Count Five, possession with intent to distribute cocaine base, commonly known as crack; (2) for Count Seven, for knowing possession of a firearm in furtherance of a drug trafficking crime; and (3) Count Eight, for knowing possession of a firearm *460as a felon. We will address each conviction in turn.
A.
Basley contends the government’s evidence was insufficient to support his conviction for possession with intent to distribute cocaine base in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A). This conviction carries a mandatory minimum of ten years, which is enhanced to twenty years if the convicted felon has a prior felony conviction. 21 U.S.C. §§ 841 (b)(l)(A)(viii). “A conviction for possession with intent to distribute drugs requires that the defendant knowingly and intentionally possessed the drugs with the intent to distribute them.” United States v. Iafelice, 978 F.2d 92, 95 (3d Cir.1992). The government admits that there is no direct evidence Basley actually possessed the cocaine base, but argues there is overwhelming evidence of constructive possession.
“Constructive possession exists if an individual knowingly has both the power and the intention at a given time to exercise dominion or control over a thing, either directly or through another person or persons. Constructive possession necessarily requires both dominion and control over an object and knowledge of that object’s existence.”
Cunningham, 517 F.3d at 178 (citing Iafel-ice, 978 F.2d at 96). Notably, dominion and control are not established by “mere proximity to the drug, or mere presence on the property where it is located.” United States v. Jenkins, 90 F.3d 814, 818 (3d Cir.1996) (quoting United States v. Brown, 3 F.3d 673, 680 (3d Cir.1993)).
Whether a defendant had dominion and control over drugs found in a house hinges in part on his relationship to that property. If a defendant is an owner or lessee of a premises where contraband is found, that fact “logically tend[s] to support a conclusion that [they] had constructive possession” of any contraband on the premises. United States v. Introcaso, 506 F.3d 260, 271 (3d Cir.2007); Jackson v. Byrd, 105 F.3d 145, 150 (3d Cir.1997). But, this Court previously found that evidence a person had a key to and resided in a house where drugs were recovered, but was not on the lease, was insufficient to support a finding that she had constructive possession of the contraband in the house. Brown, 3 F.3d at 680-82. Moreover, we noted her conduct was “consistent with that of someone with access to or residing at the Brown residence, but with no control over the drugs ... therein.” Id. at 682.
Basley argues the government’s evidence is insufficient to support his conviction under Brown because it only establishes that he had contact with 5343 Darrah Street prior to the discovery of drugs therein. Indeed, Basley is neither a lessee nor owner of the 5343 Darrah Street property. Although the government offered extensive evidence of Bas-ley’s contacts with the 5343 Darrah Street property, that evidence is insufficient on its own to establish that he had dominion and control over the contraband found inside the property. See Brown, 3 F.3d at 684. The government, however, also offered other circumstantial evidence to support its constructive possession claim, including: (1) recorded conversations indicating that Basley was engaged in the drug trade, (2) physical and testimonial evidence that Basley carried a large quantity of cocaine, from which cocaine base is created, into the home the same day the cocaine base was recovered, and (3) evidence of the presence of tools used to transform cocaine into cocaine base in close proximity to the cocaine and the cocaine base. This evidence distinguishes Basley from the Brown defendant because evidence that Basley was in the drug trade and *461brought cocaine into 5343 Darrah Street is inconsistent with someone who has “access to or [is] residing at the ... residence, but [who does not have] control over the drugs ... therein.” Id. at 682. Therefore, considering all the circumstantial evidence in a light most favorable to the government, we conclude a reasonable jury could infer that Basley had dominion and control over the cocaine base found on the premises. Cunningham, 517 F.3d at 177.
Nevertheless, to make out a conviction for possession with intent to distribute drugs, the government must establish that Basley intended to distribute the drugs he constructively possessed. Iafelice, 978 F.2d at 95. The government offered extensive evidence through recorded conversations and Cameron’s testimony that Bas-ley was engaged in the drug trade, though none of that evidence explicitly referenced him distributing cocaine base. Additionally, the officers recovered materials used in drug distribution, including a box of clear vials and clear plastic bags, near both the black duffle bag and the cocaine base. Based on evidence that Basley was distributing drugs, had access to distribution tools, and had constructive possession of a substantial quantity of cocaine base, a reasonable jury could infer that Basley intended to distribute the cocaine base. Therefore, we find that there is sufficient evidence to support Easley’s conviction for Count Five of the indictment.
B.
Basley challenges the sufficiency of the evidence supporting his conviction for knowingly possessing a firearm in furtherance of a drug trafficking crime. Title 18 U.S.C. § 924(c)(1)(A) imposes a mandatory consecutive sentence of at least five years for any person who, in furtherance of a drug trafficking crime, “possesses a firearm.” 18 U.S.C. § 924(c). To support a conviction under this statute the government had to prove beyond a reasonable doubt that Basley (1) is guilty of an underlying drug crime, (2) knowingly possessed a firearm, and (3) knowingly possessed a firearm in furtherance of the drug trafficking crime.
Having already convicted Basley of distributing cocaine, which he does not appeal, a reasonable jury could conclude Bas-ley was guilty of an underlying drug crime. This appeal hinges on whether there was sufficient evidence that Basley knowingly possessed the Beretta semi-automatic handgun, found in a wicker basket in the downstairs seating area, or the Glock semi-automatic weapon, found in a dresser drawer in the front bedroom, to further his drug trafficking activities.
The government did not present any direct evidence tying Basley to these guns or indicating Basley knew that these guns were in the house. Therefore, the government needed to establish that Basley constructively possessed these weapons. See Cunningham, 517 F.3d at 178. The government’s extensive circumstantial evidence that Basley had control over the residence is insufficient to support an inference that he had dominion and control over the contraband therein. Brown, 3 F.3d at 680-81. However, that evidence, paired with the recorded conversation during which Basley told Cameron he owned a Glock and the fact that the Glock was found in a drawer, with men’s clothing, surrounded by Basley’s intimate personal effects, is strong circumstantial evidence that Basley knowingly possessed that gun. Thus, considering the evidence in a light favoring the government, a reasonable jury could infer that Basley knowingly possessed the Glock.
The evidence relating to the Beretta in the wicker basket is more tenuous. There was no direct evidence the Beretta belonged to Basley, and the gun was not *462near his personal effects. The government’s primary circumstantial evidence suggesting that Basley knowingly possessed the Beretta is comprised of evidence that Basley had some control over the residence and the testimony of a senior narcotics agent who noted that firearms are integral to the drug trade. However, the agent’s testimony that guns are integral to the drug trade does not speak to whether Basley knowingly possessed this gun, and evidence that a person has control over a residence is insufficient to support an inference that they had dominion and control over the contraband therein. Brorni, 3 F.3d at 680-81. Therefore, a reasonable jury could not infer that Basley knowingly possessed the Beretta. This is particularly true because four people entered 5343 Darrah Street on July 8, 2005 prior to the search, any of whom could have hidden the gun. Accordingly, we will limit our analysis to the Glock.
To support a conviction for possession of a firearm in furtherance of a drug trafficking crime, the totality of the “evidence must demonstrate that possession of the firearm advanced or helped forward a drug trafficking crime.” United States v. Sparrow, 371 F.3d 851, 853 (3d Cir.2004). This Court considers the following nonexclusive factors to determine whether a gun was possessed “in furtherance”:
“the type of drug activity that is being conducted, accessibility of the firearm, the type of the weapon, whether the weapon is stolen, the status of the possession (legitimate or illegal), whether the gun is loaded, proximity to drugs or drug profits, and the time and circumstances under which the gun is found.”
Id. As Basley points out, in circumstances where guns are found in the immediate vicinity of drugs or drug paraphernalia, this Court has found that proximity alone is sufficient evidence for a rational juror to conclude the gun was used to further drug trafficking. United States v. Iglesias, 535 F.3d 150, 157 (3d Cir.2008). But, as the Glock was on the second floor, it was not proximate to the drugs found in the basement. The Glock, however, implicates other listed factors. The Glock is a semiautomatic weapon, which'is a type of weapon rarely used primarily for self-defense. It was loaded, indicating it was ready to fire. Additionally, it had been reported stolen. Although none of those factors standing alone directly indicate the Glock was used to further drug trafficking, together they support the inference that the gun was used to further drug trafficking. Thus, a reasonable jury could rely on these factors to conclude that the Glock was used to further Basle/s drug trafficking activities. Accordingly we will affirm Bas-ley’s conviction based on Count Seven for possessing a firearm in furtherance of a drug trafficking crime.
Because we conclude a reasonable jury could infer that Basley knowingly possessed the Glock, we will also affirm Bas-ley’s conviction based on Count Eight, that he knowingly possessed a firearm as a felon.
IV.
The District Court sentenced Basley to a statutory mandatory minimum term of 300 months’ imprisonment, followed by ten years of supervised release, for his conviction under a number of drug and gun offenses. Easley’s advisory guideline range for his convicted offenses is 168-210 months under the Sentencing Guidelines. Normally, a conviction for possession of cocaine base with an intent to distribute (Count Five) carries a mandatory minimum sentence of ten years. 21 U.S.C. §§ 841(b)(l)(A)(viii). Because Basley had a prior felony drug conviction, however, this mandatory minimum is enhanced to twenty years. Id. His conviction under *463Count Seven, possession of a firearm in furtherance of a drug trafficking crime, carries a statutory minimum of five years’ imprisonment to run consecutively with the twenty-year term. 18 U.S.C. § 924(c)(l)(A)(i). As a result, Basley has a mandatory minimum sentence of 300 months. U.S. Sentencing Guidelines Manual § 5Gl.l(a). Basley challenges his sentence as invalid under the Sixth Amendment and unreasonable. We will address Basley’s constitutional argument first.
A.
Basley contends that his sentence violates his Sixth Amendment rights because (1) the District Court imposed an enhanced mandatory minimum sentence based on the finding, made by a judge rather than a jury, that Basley had a prior drug conviction, and (2) the District Court determined, rather than the jury, that Basley’s prior conviction qualified as a senteneing-enhancing prior conviction.
The Sixth Amendment right to a trial by jury extends to sentencing, United States v. Booker, 543 U.S. 220, 226, 244, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), but the Sixth Amendment is not violated when a court, as opposed to a jury, finds that a defendant has a prior conviction, Almendarez-Torres v. United States, 523 U.S. 224, 226-27, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). Although the holding of Almendarez-Tor-res has been questioned by the Supreme Court, it continues to bind this Court. United States v. Vargas, 477 F.3d 94, 105 (3d Cir.2007). Therefore, the District Court did not violate Basley’s Sixth Amendment rights by finding a prior conviction existed for the purpose of sentencing enhancement.
Basley further contends that even if the District Court was permitted to determine that he had a prior conviction under Al-mendarez-Torres, his Sixth Amendment rights were violated when the District Court imposed an enhanced sentence based on that conviction without a jury finding that the nature of Basley’s prior conviction qualified him for such an enhancement. The District Court is statutorily authorized to enhance the mandatory minimum on Count Five only if Basley has a prior felony drug conviction. 21 U.S.C. § 841(b)(l)(E)(iii). Thus, in order to enhance Basley’s sentence, the District Court had to find both that Basley had a prior conviction, and that the conviction was eligible for enhancement.
Basley’s argument tries to parse the unparseable: if a court is permitted to find the fact that a defendant had a prior conviction, it would make no sense that it would be unable to find what that prior conviction was for. Moreover, this argument is undermined by Supreme Court precedent. The Supreme Court permits a sentencing court to look at the fact of conviction, the statutory definition of the crime, and the charging papers and jury instructions of the prior offense to determine whether a prior conviction qualifies for sentence enhancement under another statute. Shepard v. United States, 544 U.S. 13, 16, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005); Taylor v. United States, 495 U.S. 575, 601, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). Here, the District Court merely looked at the fact of conviction and the statutory elements of the convicted crime to determine that Basley’s prior conviction was a prior felony drug conviction. Therefore, it did not err by finding that Basley had a prior felony drug conviction, which made his sentence enhanceable.10
*464B.
Basley also challenges his sentence as both proeedurally and substantively unreasonable. This Court reviews the overall sentence for abuse of discretion, Tomko, 562 F.3d at 566, by engaging in a procedural and substantive review of the sentence, see United States v. Lessner, 498 F.3d 185, 203 (3d Cir.2007). Proeedurally, the District Court must (1) accurately calculate the applicable Sentencing Guidelines range; (2) formally rule on the motions of both parties and state on the record whether the court is granting a departure and how that departure affects the guidelines range; and (3) consider all the factors under 18 U.S.C. § 3553(a)11 and adequately explain the chosen sentence in a manner that allows for meaningful appellate court review of the reasonableness of the sentence. See Gall v. United States, 552 U.S. 38, 49-51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007); United States v. Gunter, 462 F.3d 237, 247 (3d Cir.2006). If the District Court’s procedure is without error, then we consider the substantive reasonableness of the sentence based on the totality of the circumstances. Tomko, 562 F.3d at 566. Notably, the party challenging the sentence has the burden to demonstrate unreasonableness at both stages of review. Id.
It is clear to us from the record that the District Court followed the procedural guidelines, accurately calculated Easley’s sentence, and gave meaningful consideration to the relevant § 3553(a) factors. Moreover, the court did not abuse its discretion by imposing a sentence of 300 months’ imprisonment. Therefore, we conclude the sentence was proeedurally and substantively reasonable.
V.
For the foregoing reasons, we will affirm the District Court’s judgment and sentence in all respects, except with regard to its finding that the evidence was sufficient to establish that Basley knowingly possessed the Beretta.
. This call was not recorded, but Cameron put the call on speaker so the officers present could hear his conversation with Basley.
. This cocaine, totaling 1,623.8 grams, is the basis for Count Six of the indictment.
. At trial the government played a video of the search. In it, one could see the learner’s permit was issued to Shahee C. Williams. When Basley was arrested officers recovered a driver’s license with the name of Shahee C. Williams, under Basley’s photograph, from Basley’s wallet. Thus, the learner’s permit belonged to Basley because it served as identification for his alias.
.The 107 grams of cocaine base formed the basis of Count Five.
. The Glock and the Beretta formed the basis for Counts Seven and Eight.
. The Taurus formed the basis of Count Twenty-
.Basley was tried separately.
. The Supreme Court recently issued an order amending Rule 29 to allow defendants a longer period of time to file a Rule 29 motion. As it is not yet in effect, we analyze this case under the prior rule. U.S. Order 09-18.
. Although this Court has not considered the question, other courts have held that in a Rule 29 motion a defendant merely needs to put the government on notice that he is challenging the sufficiency of the evidence. See United States v. South, 28 F.3d 619, 627 (7th Cir.1994) (noting that Rule 29 does not require anything more than notice that defendant was "contesting the sufficiency of the evidence”); United States v. Gjurashaj, 706 F.2d 395, 399 (2d Cir.1983) (finding that defendants “need not specify the grounds of the [Rule 29] motion in order to preserve a sufficiency claim for appeal”).
. In an unpublished opinion, this Court previously rejected the distinction between a court finding of a prior conviction, and a finding of the nature of the prior conviction. United States v. Randolph, 236 Fed.Appx. 777, 778 (3d Cir.2007).
. Section 3553(a) instructs the sentencing court to consider (1) the nature of the offense and the defendant’s personal characteristics; (2) the need for the sentence to punish the defendant, deter similar conduct by the defendant and the public, protect the public from the defendant, and rehabilitate the defendant; (3) the types of sentences available; (4) the sentencing guidelines; (5) any policy statements of the Sentencing Commission; (6) the objective of uniformity in criminal sentencing; and (7) the need to provide restitution.
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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/8475831/
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OPINION OF THE COURT
JORDAN, Circuit Judge.
Edwin Young appeals from an order of the United States District Court for the Western District of Pennsylvania granting summary judgment to American Life Assurance Company of New York (“AI Life”) on Young’s claim for benefits under the Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. § 1001, et seq. (“ERISA”). For the following reasons, we will affirm.
I. Background
Young, as a managing attorney for American International Group, Inc. (“AIG”), was an eligible participant under Group Disability Insurance Policy GLT-10761 (the “Policy”), an employee sponsored benefit program governed by ERISA and issued and insured by AI Life. On November 26, 2001, he experienced severe chest pains at work and was taken to the hospital. Tests revealed that Young did not suffer from a heart condition, which led his cardiologist, Dr. Dennis Eberz, to believe that the symptoms resulted from depression and stress that Young suffered in connection with his job.
On April 25, 2002, Young filed for long-term disability (“LTD”) benefits under the Policy, alleging that he had been disabled since November 26, 2001.1 In his LTD benefits claims form, Young reported that he was disabled due to “major depres*466sion/panic disorder caused by stressful work environment/workload.” (Supp.App. at AMER0794.) The physician’s portion of the LTD benefits claims form, filled out by Dr. Eberz, similarly reported a diagnosis of “major depression/panic disorder.” (SuppApp. at AMER0788-89.) Young’s application also included a letter from his psychiatrist indicating that Young was receiving treatment for major depressive disorder. AI Life determined that Young was eligible for LTD benefits and informed Young that he would begin receiving those benefits on May 28, 2002, pursuant to the mental illness and substance abuse provision of the Policy. In contrast to benefits for physical disability, the Policy’s mental illness and substance abuse provision limited LTD benefits for mental illness, including physical manifestations of mental illness, to a twenty-four month period. Accordingly, Young’s benefits would expire on May 27, 2004.
In 2003, while receiving benefits under the Policy, Young applied for Social Security Disability benefits, describing his condition as “severe clinical depression — unable to focus or concentrate.” (Supp.App. at AMER0705.) The Social Security Administration awarded Young benefits on January 25, 2004, based on its determination that he had become disabled on November 26, 2001.
Just prior to the expiration of his benefits under the Policy, Young notified the individual at AI Life who was handling his claim (the “claims administrator”) that his disability was ongoing, and he requested information to challenge the upcoming expiration of his LTD benefits. On July 1, 2004, Dr. Eberz wrote a letter on Young’s behalf stating “I do not understand the division between the mental and physical illness and do believe that [the termination of Young’s LTD benefits] is discriminating against patients with mental illness.” (SuppApp. at AMER0619.) The doctor further noted that, in addition to mental illness, Young suffered from physical symptoms associated with work-related stress such as chest pain and gastroeso-phageal reflux. Relying on this letter, Young, in an August 4, 2004 letter to an AI Life affiliate, asserted for the first time that his disability was “physical in nature” and thus not subject to the Policy’s two-year limit on LTD benefits for mental disability.2 (Supp.App. at AMER0618.)
Thereafter, AI Life requested Young’s medical records to determine whether he in fact suffered from a physical disability. Once the records were received, the claims administrator sought an independent medical review by Dr. Rose Ho, a Board Certified physician in physical medicine and rehabilitation. In connection with her review, Dr. Ho consulted with Dr. Eberz. Dr. Ho reported that Dr. Eberz “ruled out [Young] for any cardiac problems” and “did not feel that [Young’s] physical condition rose to a level in which he would be physically impaired,” but rather that Young was “severely limited secondary to depression and adynamic mood.” (Supp. App. at AMER0512.) In a February 1, 2005 report, Dr. Ho acknowledged Young’s diagnoses of depression, panic disorder, carpal tunnel syndrome, a possible rotator cuff tear, arthritis, joint arthritis and asthma. She concluded however, that, based on Young’s medical records and her discussion with Dr. Eberz, Young’s physical conditions did not rise to the level of a physical disability. In a March 14, 2005 *467letter, the claims administrator denied Young’s request for benefits because his disability “was a result of a mental illness” and because his physical conditions did not equate to a physical disability. (Supp.App. at AMER0497-99.)
Young appealed that decision and sent AI Life additional information relevant to his claim, including a September 20, 2005 letter from Dr. Eberz in which Dr. Eberz identified several of Young’s physical conditions- — -among them chest pain, asthmatic bronchitis, and gastroesophageal reflux— and opined that Young would suffer a “medically unacceptable risk” of disability in cardiac, gastrointestinal, and respiratory functions if he returned to work. (Supp. App. at AMER 0471.) Young also sent an affidavit in which he attested that he was physically incapable of continuing in his occupation3 due to his rotator cuff injury, asthmatic bronchitis, carpal tunnel syndrome, and cardiac symptoms. Upon review of the file, including that additional information, the claims administrator upheld the denial of benefits.
Young appealed again. Upon receiving Young’s up-to-date medical records, the claims administrator arranged for another independent medical review, this one conducted by Dr. Robert L. Marks, a Board Certified physician in physical medicine and rehabilitation and neurology. In addition to reviewing Young’s medical records, Dr. Marks spoke with Dr. Eberz, who stated that when he last saw Young, on June 28, 2005 (eighteen months prior), he found no major cardiac abnormalities despite Young’s complaints of chest pain. Dr. Eberz believed that the chest pain was likely related to gastroesophageal reflux disease. Importantly, Dr. Eberz also “indicated that he did not believe that [Young’s] physical condition was of a magnitude to preclude return to work.” (Supp.App. at AMER0185, 189.) Dr. Marks also spoke with Young’s physiatrist, Dr. Henderson, who also stated that Young was “sufficiently functional to be able to work.” (Supp.App. at AMER0185, 192.) Both doctors returned letters to Dr. Marks certifying Marks’s rendition of their conversations.
In a January 19, 2007 report, Dr. Marks concluded that Young was able to physically perform his job as of November 27, 2001 with some limitations — -wrist splints, changes in position, and file carriers — to accommodate his shoulder problem and carpal tunnel syndrome. Dr. Marks further noted that most of those limitations “are actually recommendations for asymptomatic individuals in an otherwise ‘normal’ work situation.” (Supp.App. at AMER0187.) Dr. Marks’s report was based on his discussions with Young’s treating physicians and a review of Young’s entire file.
Upon review of Dr. Marks’s report, the claims administrator sent Young’s file to a rehabilitation case manager to determine whether Young could perform his occupation. The rehabilitation case manager concluded that, based on Dr. Marks’s report, Young could physically perform his occupation, a sedentary level job in the national economy, with the accommodations identified by Dr. Marks. Based on a review of Young’s file, including Dr. Marks’s report and the rehabilitation case manager’s conclusions, the claims administrator upheld the determination that Young was not entitled to benefits for physical disability.
Having exhausted his administrative remedies, Young filed this lawsuit pursuant to ERISA, 29 U.S.C. § 1132(a)(1)(B), to recover benefits under the Policy. The *468parties filed cross-motions for summary judgment. In analyzing Young’s claim, the District Court applied a “moderately heightened [arbitrary and capricious] standard of review, at the lower end of the sliding scale” finding that a conflict of interest existed because “the entity funding the plan ... also made the final decision regarding eligibility.” Young v. Am. Int'l Life Assurance Co. of N.Y., Civ. A. No. 07-626, 2008 WL 4155082, at *6 (W.D.Pa. Sept. 9, 2008). Turning to the merits of Young’s claim, the District Court held that AI Life’s denial of benefits was not arbitrary and capricious under that standard and, accordingly, issued an order granting summary judgment to AI Life and against Young. Id. at **6-8. Young timely appealed.
II. Discussion4
We exercise plenary review over an appeal from a grant of summary judgment. Jacobs Constructors, Inc. v. NPS Energy Servs., Inc., 264 F.3d 365, 369 (3d Cir.2001). Summary judgment is appropriate if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Id. (citing Fed. R.Civ.P. 56(c)). “In making this determination, we must consider the evidence in the record in the light most favorable to the nonmoving party.” Id.
A. ERISA Standard of Review
“[A] denial of benefits challenged under § 1132(a)(1)(B) is to be reviewed under a de novo standard unless the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan.” Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989). If a plan gives the administrator discretion, we review the administrator’s decisions under an arbitrary and capricious standard. Doroshow v. Hartford Life and Acc. Ins. Co., 574 F.3d 230, 233 (3d Cir.2009). We had previously adopted a heightened form of arbitrary and capricious review for those cases in which an administrator acts under a conflict of interest, using a “sliding scale” approach to address how much deference should properly be afforded to a conflicted administrator’s determination. See Post v. Hartford Ins. Co., 501 F.3d 154, 161 (3d Cir.2007). In the wake of the Supreme Court’s decision in Metropolitan Life Insurance Co. v. Glenn, 554 U.S. 105, 128 S.Ct. 2343, 171 L.Ed.2d 299 (2008), however, our sliding scale approach is no longer tenable. Estate of Schwing v. The Lilly Health Plan, 562 F.3d 522, 525 (3d Cir.2009). Nevertheless, conflicts of interest remain a factor that courts must consider in evaluating whether an administrator’s denial of benefits is arbitrary and capricious. Id. at 526.
The Policy clearly gives AI Life the kind of discretion that triggers an arbitrary and capricious standard of review.5 (See Supp. App. at AMER0-024 (“AI Life Assurance Company of New York has full discretion and authority to determine eligibility for benefits and to construe and interpret all *469terms and provisions of the Group Insurance Policy.”).) Unfortunately, the District Court did not have the benefit of our opinion in Estate of Schwing,6 which issued months after the District Court ruled on the parties’ motions, so the Court analyzed Young’s claim under the sliding scale approach, determining that a “moderately heightened standard of review, at the lower end of the sliding scale” was appropriate because of a financial conflict, since the insurer of the Policy also acted as a decision-maker on benefits coverage.7 Young, 2008 WL 4155082, at *6. Because we no longer use the sliding scale approach, we will apply an unmodified arbitrary and capricious review to AI Life’s decision, but in doing so, we will take into account the admitted financial conflict as one factor in our analysis. See Glenn, 128 S.Ct. at 2351 (“[CJonflicts are but one factor among many that a reviewing judge must take into account.”). “Under a traditional arbitrary and capricious review, a court can overturn the decision of the plan administrator only if it is without reason, unsupported by substantial evidence or erroneous as a matter of law.” Doroshow, 574 F.3d at 234.
B. AI Life Did Not Abuse Its Discretion in Denying Young Benefits
As to the merits of his claim, Young contends that AI Life’s determination that he was not physically disabled is arbitrary and capricious because it is contradicted by Dr. Eberz’s September 20, 2005 letter, as well as being unsupported by the record. Specifically, Young relies on Dr. Eberz’s statements that Young “definitely suffers a risk of disability were he to go back to work and that disability could occur either in the cardiac area, gastrointestinal area and from the respiratory standpoint as well,” and that “there is a medically unacceptable risk for Mr. Young to go back to work from the standpoint of perhaps even a myocardial infarction or other such calamity in the other areas outlined above.” (Supp. App. at AMER0471.) The doctor’s comments, however, have been seriously undermined and will not bear the weight Young puts on them.
First, Dr. Eberz’s statement that Young’s physical conditions presented “a medically unacceptable risk [if Young went] back to work from the standpoint of perhaps even a myocardial infarction [i.e., a heart attack]” is flatly contradicted by his discussions with Drs. Ho and Marks in which he acknowledged that Young could indeed return to work. Further, Dr. Eberz’s own records — which indicate normal stress tests and EKGs and no physical abnormalities — contradict the notion that Young is physically disabled due to a heart condition or that Young might suffer a heart attack should he return to work. In fact, Dr. Eberz has indicated on more than one occasion that Young’s chest pain resulted from gastroesophageal reflux disease, apparently caused by mental stress. The doctors treating Young for other physical symptoms, such as carpal tunnel syndrome and shoulder pain, did not indicate that Young was physically disabled due to those conditions, nor do their records suggest that Young’s conditions render him physically disabled. Given the lack of medical evidence suggesting physical disability and the adequately supported opinions of Drs. Ho and Marks, AI Life did not abuse its discretion in disregarding Dr. Eberz’s unsupported disability conclu*470sion, which contradicts his own statements and records.8 See Black & Decker Disability Plan v. Nord, 538 U.S. 822, 825, 123 S.Ct. 1965, 155 L.Ed.2d 1034 (2003) (“[P]lan administrators are not obliged to accord special deference to the opinions of treating physicians.”); Stratton v. E.I. DuPont De Nemours & Co., 363 F.3d 250, 258 (3d Cir.2004) (“A professional disagreement does not amount to an arbitrary refusal to credit.”). Furthermore, since the case before us is clear, the conflict of interest identified by the District Court does not tip the scales in favor of Young, especially since there is no indication that the conflict affected AI Life’s decision. See Glenn, 128 S.Ct. at 2351 (noting that a conflict of interest “will act as a tiebreaker when other factors are closely balanced” and “should prove more important ... where circumstances suggest a higher likelihood that it affected the benefits decision”).
Young relies heavily on Lasser v. Reliance Standard Life Insurance Co., 344 F.3d 381 (3d Cir.2003) in support of his argument that AI Life acted arbitrarily and capriciously by disregarding the unacceptable medical risk identified by Dr. Eberz, but Lasser is distinguishable. Unlike Young, the claimant in Lasser suffered from a well-documented heart condition.9 344 F.3d at 383 (noting that the plaintiff “suffers from coronary artery disease”). Furthermore, in Lasser, we held that the administrator’s decision was arbitrary and capricious because “all evaluating physicians [including two doctors engaged by the administrator] — with the exception of [one doctor] whose report the others discredited — agreed that [the plaintiffs] heart condition precludes him from safely performing [the duties of his job].” Id. at 391. In contrast, the evidence in this case strongly suggests that Young can perform his job without risking physical injury. Although occupational stress might have been hazardous to Young’s mental condition, it was not arbitrary and capricious for AI Life to conclude that Young could physically work at his occupation and handle work-related stress. Furthermore, we cannot overlook the fact that Young consistently characterized his disability as depression — both in his LTD benefits claim form and his application for social security benefits — and only changed his position when he realized that his benefits had been exhausted under the Policy’s mental illness provision.
Young also argues that AI Life’s reliance on Dr. Marks’s opinion was arbitrary and capricious because Dr. Marks noted *471Young would need some accommodations to return to work but the Plan’s definition of “disability” does not account for reasonable accommodations or limitations. AI Life responds that the Policy speaks in terms of “essential duties,” defined by the Policy as, among other things, “a duty that ... can not be reasonably omitted or changed.” (Supp.App. at AMER0006.) This language, AI Life argues, “exemplifies a modification provision, which implicates reasonable workplace accommodations,” thereby permitting AI Life to take reasonable accommodations into account in determining whether a claimant can perform the essential duties of his job. (Ap-pellees’ Answering Br. at 49.)
Dr. Marks concluded that Young “should have been able to physically perform the duties of his work, but with some limitations,” namely, avoiding heavy lifting, changing position every forty-five minutes, and using a wrist splint to assist with writing, typing, and using the phone. (Supp.App. at AMER0186.) To the extent that carrying files and typing would be difficult for Young due to his shoulder problem and carpal tunnel syndrome, it is clear that the effects of those tasks can be ameliorated by allowing Young to use wrist splints and devices, such as a wheeled briefcase, to facilitate the transfer of large files.10 Thus, while Dr. Marks may have incorporated limitations into his analysis, he was simply doing what was required under the Policy by outlining the manner in which Young was capable of physically performing the essential duties of his job. AI Life did not abuse its discretion in relying on Dr. Marks’s report because it could reasonably conclude that the aspects of the job with which Young might struggle could be addressed by adopting the suggested limitations, most of which would be recommended even “for asymptomatic individuals in an otherwise ‘normal’ work situation.” (Supp.App. at AMER0187.) Simply because Dr. Marks did not use language that tracks the Policy does not mean that AI Life abused its discretion.
Furthermore, the Policy dictates that benefits will be terminated if a claimant “refuses to cooperate with or try ... modifications made to the work site or job process to accommodate [the claimant’s] identified medical limitations to enable [the claimant] to perform the Essential Duties of [the claimant’s] Occupation or a reasonable alternative.” (SuppApp. at AMER0017.) It is clear then that, to the extent Young can perform the essential duties of his job with accommodations, he is not entitled to benefits.
III. Conclusion
Despite Young’s attempt to transform his depression and associated mental health issues into a physical disability, the record adequately supports AI Life’s determination that Young’s mental and physical conditions did not equate to a physical disability that precludes him from working in his own occupation. Accordingly, it was not arbitrary or capricious for AI Life to deny him benefits. We will therefore affirm the judgment of the District Court.
. A participant in the plan is entitled to receive LTD benefits if he becomes disabled, meaning that he is prevented "from performing one or more of the Essential Duties of [His] Occupation” as a result of accidental bodily injury, sickness, mental illness, substance abuse, or pregnancy, and consequently earns less than 80% of his pre-disability earnings. (Supp.App. at AMER0005.)
. The letter is addressed to “AIG Life Companies (U.S.), Appeals Unit,” and says, among other things, "I do believe that the two year limitation for mental disability is highly discriminatory and would not be received favorably by the courts.... ” (Supp.App. at AMER0618.) Thus, despite his claim of a physical disability, Young continued to advocate his case as if it were based on a mental disability.
. The Policy defines "Your Occupation” as "your occupation as it is recognized in the general workplace. Your occupation does not mean the specific job you are performing for a specific employer or at a specific location.” (Supp.App. at AMER0009.)
. The District Court had subject matter jurisdiction pursuant to 28 U.S.C. § 1331 and 29 U.S.C. § 1132(e). Our jurisdiction arises under 28 U.S.C. § 1291.
. Young does not claim that AI Life lacks discretion to determine benefits under the Policy. Instead, Young argues that the fact that AI Life abused its discretion by failing to consider "all of the probative and relevant evidence in the administrative record" requires us to apply a de novo standard of review. (Appellant’s Op. Br. at 19.) In other words, because AI Life abused its discretion, argues Young, AI Life is not entitled to the benefit of the arbitrary and capricious standard but should be penalized with a de novo standard of review. Young cites no law in support of his novel theory.
. The District Court also did not mention Glenn, which issued very shortly before the Court ruled on the parties’ motions.
. AI Life concedes, as it did before the District Court, that a financial conflict of interest exists in this case. Young, 2008 WL 4155082, at *5.
. Young's assertions that AI Life failed to consider Dr. Eberz’s letter are meritless. The claims administrator explicitly identified the letter as among the items reviewed in connection with the denial of Young’s first appeal, but rejected Dr. Eberz’s conclusions as unsupported by objective findings. The mere fact that neither Dr. Marks's report nor the claims administrator's final letter denying Young’s second appeal specifically referenced Dr. Eberz’s letter, when it is clear that both Marks and the claims administrator reviewed Young's entire file in determining Young’s disability status, does not require us to find in Young's favor, especially in light of Dr. Eberz’s change in position. Young also argues that it is not clear whether Dr. Eberz's statement to Dr. Marks, that Young could physically work, referred to work in Young's own occupation or “work in general” such as "part-time unskilled work.” (Appellant’s Op. Br. at 21.) Even assuming that Dr. Eberz's statement could be given the meaning Young attributes to it, Dr. Marks clearly understood Young's position, and the conclusions in his report, which were reached in light of that understanding, are sufficiently supported by the medical record.
. Likewise, Hoover v. Provident Life and Accidental Insurance Co., on which Young also relies, concerned a claimant suffering from a heart condition: coronary artery disease with stress-induced angina. 290 F.3d 801, 803 (6th Cir.2002).
. Furthermore, since Young’s job as an attorney is considered sedentary work that requires only the occasional lilting of up to ten pounds, it is unlikely that the need to engage in heavy lifting can fairly be considered an essential duty of the job. Although Young asserts in his affidavit that, as an attorney for AIG, he was regularly required to carry files, exhibits, and books ranging between twenty and one-hundred pounds, whether Young can perform his occupation as required by the Policy depends on whether he can perform the duties of that job as it exists in the general workplace.
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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/8475833/
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OPINION OF THE COURT
JORDAN, Circuit Judge.
This case, before us for a third time, involves an appeal from an order of the *473United States District Court for the Middle District of Pennsylvania awarding attorneys’ fees to appellee Ronald T. Tomas-ko, who prevailed in part on his claims under the Employee Retirement Income Security Act (“ERISA”) against his former employer, Ira H. Weinstock, P.C., and its principal, Ira H. Weinstock (collectively ‘Weinstock”). Weinstock also appeals the District Court’s amendment of its order, which allowed the portion of fees originally owed to Attorney Michael A. Koranda to be paid to the law firm of Tomasko & Koranda, P.C. For the following reasons, we will affirm.
I. Background
As the facts are well known to the parties, we recount here only those facts necessary for the disposition of the present appeal.1 Tomasko was employed as an associate with the law firm Ira H. Wein-stock, P.C. from August 13, 1991 through his resignation on January 2, 1997. He participated in two defined contribution pension plans during his employment, the Ira H. Weinstock Money Purchase Plan and the Ira H. Weinstock Profit Sharing Plan. Ira H. Weinstock, P.C. functioned as the plans’ sponsor and administrator while Mr. Weinstock acted as trustee of the plans. Both plans provided that the employer’s contributions for a given employee for each plan year ending on December 31 would be determined based on the employee’s W-2 compensation for that plan year. The plans require the employee to remain employed for the entirety of the plan year in order to receive contributions.
In 1993, Weinstock agreed to give To-masko a $3,000 salary increase, paid in biannual bonuses, and to award Tomasko additional bonuses, in amounts left to Weinstock’s discretion, based on work that Tomasko would do and for which he would submit proof when he requested such a bonus. Tomasko resigned on January 2, 1997 to begin his own law firm, after misleading Weinstock as to his intention to remain employed by Ira H. Weinstock, P.C. Before resigning, however, he submitted a request for a bonus in the amount of $14,200.00 for his work on cases that were settled in the fourth quarter of 1996. On January 17, 1997, Mr. Weinstock, in his discretion, had the firm pay Tomasko a bonus of $6,100.00 ($1,500.00 of which represented Tomasko’s bi-annual bonus), which was included as income on Tomas-ko’s 1997 W-2 instead of his 1996 W-2. Since Tomakso resigned before the end of 1997, Weinstock was thus able to avoid making a contribution to the plans based on this $6,100.00.
Tomasko sued Weinstock, eventually asserting three claims: (1) a claim pursuant to the Pennsylvania Wage Payment and Collection Law (“WPCL”), 42 Pa. Cons. Stat. § 260.1, et seq. to collect the additional $8,100 Tomasko believed was owed to him; (2) an ERISA claim to recover benefits due under the pension plans for the $6,100 Tomasko earned and the additional $8,100 he believed he was owed, see 29 U.S.C. § 1132(a)(1)(B); and (3) an ERISA claim for breach of fiduciary duty, see 29 U.S.C. § 1132(a)(2). On December 18, 2001, after a bench trial, the District Court found in favor of Tomasko on his ERISA claim to recover pension benefits, concluding that Weinstock owed contributions to the pension plans for the $6,100.00.2 In so *474holding, the Court rejected Weinstock’s interpretation of the plans — that contributions were not due until compensation was paid as opposed to earned — because such an interpretation was inconsistent with the way Weinstock normally made contributions under the plans. Additionally, the Court concluded that Weinstock breached a fiduciary duty “by deliberately not making the appropriate contribution to [To-masko’s] pension accounts on money earned in 1996,” based on “resentment toward [Tomasko] for resigning.”3 However, the District Court rejected Tomasko’s WPCL claim because Tomasko failed to prove that he was entitled to any compensation beyond the $6,100 he had already received from Weinstock.
Both Tomasko and Weinstock subsequently moved for attorneys’ fees. The District Court concluded that, since each side prevailed on half of its case, neither party was entitled to fees. On appeal, we affirmed the District Court’s judgment but vacated its order on attorneys’ fees because the District Court failed to undertake the five factor analysis governing the availability of fee awards in an ERISA litigation, set forth in our opinion in Ursic v. Bethlehem Mines, 719 F.2d 670 (3d Cir.1983).4 Tomasko I, 80 Fed.Appx. at 785. We therefore remanded the matter “to the District Court for consideration of the Ursic factors.” Id. at 783 (footnote omitted).
On remand, the District Court again denied attorneys’ fees in a September 5, 2006 memorandum and order. The District Court analyzed the Ursic factors, concluding that, although the factors weighed slightly in favor of Tomasko, it would not order fees to either party due to a lack of exceptional circumstances warranting a fee. The parties cross-appealed the Court’s denial of fees. Tomasko II, 255 Fed.Appx. at 678.
We affirmed the District Court’s refusal to award fees to Weinstock but vacated and remanded the portion of the District Court’s decision denying fees to Tomasko. Id. We concluded that the District Court misstated the law, and that its error might have impacted the Court’s ruling. Id. at 680-81. Additionally, we found that the District Court erred in its application of three of the Ursic factors as to Tomasko’s motion for attorneys’ fees. Id. at 681-82.
On January 15, 2008, in light of our mandate, the District Court issued an order granting counsel twenty days to update the amount of counsel fees claimed. On January 28, 2008, Tomasko submitted an addendum to his motion for attorneys’ fees. The addendum included an up-to-date account of the time that Michael A. Koranda, lead counsel for Tomasko, had spent on the case and an account of the time invested by Kathryn L. Simpson, who took over the case after Koranda’s untimely death in December 2006. The time sheets included hours spent on post-trial motions and appeals. Weinstock never filed a response. After holding oral argument on June 26, 2008, the Court issued a July 29, 2008, 2008 WL 2962909, memorandum and order granting attorneys’ fees to Tomasko. Taking the Ursic factors together, the Court found that Tomasko was entitled to recover attorneys’ fees.
In calculating the fee, the Court first concluded that Koranda and Simpson’s hourly rates were reasonable. Next, the *475Court apportioned Koranda’s fees through trial to account for the fact that Tomasko was only partially successful on his claims. In this regard, the Court only allowed recovery for the time Koranda spent through trial on Tomasko’s ERISA claim for pension contributions as to the $6,100.5 Ultimately, the District Court awarded $40,712.50 to Koranda, $4,416.00 to Simpson and $117.70 in costs. The fees awarded also included time spent on post-trial motions and appeals, which were not apportioned, even though Tomasko never sought to recover such fees in his original motion for fees.
Tomasko thereafter moved to amend or correct the Court’s judgment to allow for the fees owed to Koranda to be paid to the law firm of Tomasko & Koranda, P.C. in light of Koranda’s untimely death in December of 2006. On August 12, 2008, the District Court amended its judgment accordingly, allowing the $40,712.50 in fees owed to Koranda to be paid to Tomasko & Koranda, P.C. Meanwhile, Weinstock filed a motion for reconsideration of the Court’s July 29, 2008 order awarding attorneys’ fees. The Court denied Weinstock’s motion on November 21, 2008, 2008 WL 5068951, explaining that it had properly applied the Ursic factors, properly apportioned the unsuccessful claims from the successful ones, and that it need not address Weinstock’s objections to specific time entries because Weinstock failed to raise those objections in briefs or at oral argument. Weinstock timely appealed.6
II. Discussion7
A The District Court Did Not Abuse Its Discretion in Awarding Attorneys’ Fees to Tomasko
Section 502(g)(1) of ERISA provides that a district court “in its discretion may allow a reasonable attorney’s fee and costs of action to either party.” 29 U.S.C. § 1132(g)(1). In determining whether such a fee award is warranted pursuant to this provision, a district court must consider the following five factors, referred to as the Ursic factors:
(1) the offending parties’ culpability or bad faith;
(2) the ability of the offending parties to satisfy an award of attorneys’ fees;
(3) the deterrent effect of an award of attorneys’ fees against the offending parties;
(4) the benefit conferred on members of the pension plan as a whole; and
(5) the relative merits of the parties’ positions.
Ursic, 719 F.2d at 673. Although there is “no presumption that a successful plaintiff *476in an ERISA suit should receive an award in the absence of exceptional circumstances,” McPherson v. Employee’s Pension Plan of Am. Re-Insurance Co., 33 F.3d 253, 254 (3d Cir.1994), we have acknowledged that ERISA defendants often bear the burden of attorneys’ fees for a prevailing plaintiff, Brytus v. Spang & Co., 203 F.3d 238, 242 (3d Cir.2002); see also Tomasko II, 255 Fed.Appx. at 680 (explaining that prevailing ERISA plaintiffs often recover fees even though there is no presumption in favor of a fee award). We review a district court’s award of attorneys’ fees for abuse of discretion. McPherson, 33 F.3d at 256. Our review of the legal standards applied by a district court, however, is plenary. Id.
Weinstock first argues that the District Court’s fee award is based on the misconception that Tomasko was entitled to a fee simply because he prevailed on certain of his claims. There is, however, nothing in the Court’s opinion indicating that the Court felt it was required to grant Tomas-ko attorneys’ fees because of his partial success in this excruciatingly drawn-out litigation. To the contrary, the District Court correctly noted that a successful plaintiff in an ERISA litigation is not entitled to a fee award solely because he prevails on his case. The Court accurately set forth the governing law, clearly appreciating that the propriety of a fee award turned on its analysis of the Ursic factors.
It is rather Weinstock who misapprehends the law. Weinstock argues that, since no exceptional circumstances exist in the case, Tomasko is not entitled to fees. But, as we explained in Tomasko II, although a prevailing plaintiff receives no presumption that he is entitled to fees, “[t]his is very different from a presumption that prevailing plaintiffs are not entitled to attorney’s fees absent exceptional circumstances.” Tomasko II, 255 Fed.Appx. at 680 (internal quotations omitted and emphasis in original). Indeed, we attributed error to the District Court’s analysis then because it involved the same faulty understanding of law that Weinstock now urges us to apply. Id.
Weinstock next argues that the District Court improperly applied three of the five Ursic factors: the first factor (the offending parties’ bad faith), the third factor (deterrence) and the fifth factor (relative merits of the parties’ positions). All of those contentions fail.
Weinstock complains that the District Court misapplied the first Ursic factor— the offending parties’ bad faith — because the Court “improperly looked only at To-masko’s conduct, failed to examine the material nature of Tomasko’s conduct as it relates to the ERISA count and further abused its discretion when finding that this factor supported an award of counsel fees.” (Appellants’ Op. Br. at 19.) Although Weinstock is correct that the District Court was required to consider Wein-stock’s conduct in assessing the first factor, it is clear that the District Court intended its July 29, 2008 opinion to be read in conjunction with its September 5, 2006 memorandum. In its September 5, 2006 memorandum, the Court found that Wein-stock acted culpably because Mr. Wein-stock and his firm “not only breached their Fiduciary Duty by treating the $6,100 payment as compensation for 1997, but in doing so acted out of resentment and did not possess a belief that they were treating Plaintiff the same as other participants of the plan.” (App. at 120.) However, since the Court also found that Tomasko had been misleading about his plans for future employment, the Court concluded that the first factor only “slightly” weighed in favor of an award. In our consideration of the case on appeal, we explained in Tomasko II that the District Court abused its discretion in considering Tomasko’s conduct in this regard because “[i]t is un*477reasonable for a fact-finder, charged with examining culpability regarding an ERISA claim, to describe as ‘culpable’ conduct that has nothing to do with ERISA liability.”8 255 Fed.Appx. at 682. On remand, the District Court removed Tomasko’s misrepresentation from its calculus, finding that, thereafter, the first Ursic factor “weighs in favor of [Tomasko] for an award of fees,” as opposed to slightly weighing in favor of Tomasko. (App. at 9.)
Although it would have been preferable for the District Court to have repeated its earlier conclusions as to Weinstock in its July 29, 2008 memorandum, we cannot ascribe error to the Court’s analysis, when viewed in the context of the prior history of this case. Furthermore, as we noted in Tomasko II, it was appropriate for the District Court to characterize Weinstock’s breach of fiduciary duty as culpable conduct supportive of a fee award. See To-masko II, 255 Fed.Appx. at 681 (“Wein-stock was culpable in two ways; he breached his fiduciary duty to Tomasko out of resentment for Tomasko’s resigning to open a competing law firm; and Wein-stock did not believe that he was treating Tomasko the same as other participants in the plans.”); see also McPherson, 38 F.3d at 256-57 (“[C]ulpable conduct is commonly understood to mean conduct that is ‘blameable; censurable; ... at fault; involving the breach of a legal duty or the commission of a fault ....’” (alterations in original and emphasis added) (quoting Black’s Law Dictionary (6th ed.1990))).
Weinstock next argues that the District Court misapplied the third Ursic factor— the deterrent effect of an award of attorneys’ fees against the offending parties— because the Court’s conclusion that “attorney’s fees may deter [Weinstock] from similar actions,” (App. at 10 (emphasis added)), in the future is insufficient, on its own, to tilt this factor toward Tomasko. We find nothing erroneous about the District Court’s conclusion. The Court recognized that Weinstock’s behavior in this case appeared to be a one-time event, but still concluded that an award would serve to deter Weinstock, should a similar scenario develop in the future. In light of the Court’s finding that Weinstock’s failure to make contributions for the $6,100.00 of earnings was a deliberate act motivated by resentment, we cannot say that an award would not serve to deter Weinstock from again allowing resentment to stand in the way of fulfilling its fiduciary duties.
Finally, Weinstock asserts that the District Court misapplied the fifth Ursic factor — the relative merits of the parties’ positions — when the Court found this factor to weigh slightly in favor of Tomasko. In Tomasko II, we concluded that the District Court did not abuse its discretion in its application of that factor. Tomasko II, 255 Fed-Appx. at 684 (“The District Court weighed the parties’ relative success, and even if its calculation was different than our own might be, the scales were square.”). Since that holding constitutes the law of the case on this issue, as Wein-stock acknowledged at oral argument before the District Court, we will not revisit the matter. See In re Pharmacy Benefit Managers Antitrust Litig., 582 F.3d 432, 439 (3d Cir.2009) (“The law of the case rules have developed to maintain consistency and avoid reconsideration of matters once decided during the course of a single continuing lawsuit.” (alterations and internal quotations omitted)).
*478In conclusion, we find no abuse of discretion in the District Court’s analysis of the Ursic factors. Accordingly, we will affirm the District Court’s decision to award Tomasko attorneys’ fees.
B. Amount of the Fee Award
Weinstock also takes issue with the District Court’s calculation of the fee award. Reasonable attorneys’ fees in an ERISA litigation are calculated using the lodestar approach, which yields a presumptively reasonable fee. Hahnemann Univ. Hosp. v. All Shore, Inc., 514 F.3d 300, 310 (3d Cir.2008). “Under the lodestar approach, a court determines the reasonable number of hours expended on the litigation multiplied by a reasonable hourly rate.” Id. However, “where the plaintiff achieved only limited success, the district court should award only that amount of fees that is reasonable in relation to the results obtained.” Hensley v. Eckerhart, 461 U.S. 424, 440, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983). The party seeking a fee award bears the burden of establishing the reasonableness of the fee. Interfaith Cmty. Org. v. Honeywell Int’l, Inc., 426 F.3d 694, 703 n. 5 (3d Cir.2005). “We review a district court’s award of fees for abuse of discretion and review a district court’s factual determinations, ‘including [the court’s] determination of an attorney’s reasonable hourly rate and the number of hours he or she reasonably worked on the case,’ for clear error.” United Auto. Workers Local 259 Soc. Sec. Dep’t v. Metro Auto Ctr., 501 F.3d 283, 290 (3d Cir.2007) (quoting Interfaith Cmty. Org., 426 F.3d at 703 n. 5) (alteration in original).
Weinstock does not challenge the reasonableness of Koranda and Simpson’s hourly rates. Instead, Weinstock challenges the amount of the fee award relative to Tomasko’s overall recovery and the District Court’s refusal to disallow certain time entries. First, Weinstock complains that the District Court’s award bears no relationship to the amount Tomasko recovered in the underlying litigation, rendering the fee award punitive. In making this argument, Weinstock relies heavily on our statement in Ursic that, in awarding a fee pursuant to a statutory authorization, “[c]are must be exercised to assure that the statutory purpose of encouraging [plaintiffs without adequate financial resources to litigate] is not achieved at the price of a fee award so out of proportion to the severity of the defendant’s violation that it amounts to an excessively punitive sanction.” Ursic, 719 F.2d at 677.
Despite Ursic’s language, we have recently “rejected] a proportionality rule for attorney’s fees awarded under ERISA.” Hahnemann Univ. Hosp., 514 F.3d at 311; cf. United Auto. Workers Local 259 Soc. Sec. Dep’t, 501 F.3d at 293-92 (rejecting the argument that fee award in ERISA litigation made pursuant to § 1132(g)(2)(D) must be proportional to recovery). We have also clarified Ursic, explaining that, although Ursic “remains good law insofar as it suggests courts consider ‘billing judgment’ in determining reasonable hours,” it does not stand for the proposition that “all fees must be proportional to be reasonable.” United Auto. Workers Local 259 Soc. Sec. Dep’t, 501 F.3d at 296; see also Ursic, 719 F.2d at 678 (“ ‘Billing judgment’ is a consideration well known to the responsible bar; it should not disappear when the courts are setting statutory fees.”). It is the degree of success, rather than the amount of recovery, that drives the fee analysis. United Auto. Workers Local 259 Soc. Sec. Dep’t, 501 F.3d at 296 (“Because the focus is on the ‘degree of success,’ and not success as defined in absolute numbers, this comparison [of the damages award to the fees requested] does not necessitate proportionality.”). Furthermore, a considerable portion of the fees awarded in this case *479were incurred in connection with the prolonged nature of the litigation. Weinstock fought tooth and nail throughout the course of the case, including two appeals prior to the one before us now, despite minimal stakes. There is thus no merit, and no little irony, in the complaint that the fees Tomasko incurred as a natural consequence of that behavior are excessive when compared to the value of the underlying judgment.
Weinstock also asserts that the fee award is excessive because the instant litigation focused upon whether the parties’ compensation arrangement required Wein-stock to pay Tomasko the entirety of To-masko’s requested bonus. Since Tomasko did not succeed in establishing that he was entitled to recover an additional $8,100 from Weinstock, he did not prevail on his WPCL claim and his ERISA claim for pension contributions to the extent he sought to recover contributions based on the $8,100. However, the District Court took Tomasko’s limited success into account by reducing Koranda’s fees through trial by two-thirds so as to allow recovery only for those claims on which Tomasko succeeded.9 We cannot say that the District Court’s apportionment, which clearly reduced the fees requested to account for Tomasko’s somewhat limited success, was clearly erroneous.
Next, Weinstock argues that the Court erred in failing to address objections to specific entries that Weinstock raised at the June 2008 oral argument. Weinstock never filed a response to Tomasko’s January 28, 2008 addendum to his motion for attorneys’ fees. Accordingly, we find that the specific objections that Weinstock raised for the first time at oral argument in the District Court have been waived. It would be unfair to permit Weinstock to prevail on arguments raised for the first time at oral argument, a method of proceeding that can deprive one’s opponent of any meaningful opportunity to respond.10
Finally, Weinstock contends that the District Court should not have awarded fees for time spent on post-trial work and on appeals because Tomasko never requested attorneys’ fees from our Court and because Tomasko’s request was untimely since he first sought to recover those fees in 2008. Weinstock represents that this argument was brought to the Court’s attention at oral argument. However, the record reflects only that counsel said,
As far as appeal, I believe that time should be looked at differently than the *480work before the district court. No one is saying that — no one has claimed at least that any of the appeals were bad faith by either party. So I believe appeal time should be examined differently than the time that was done before your Honor at the district court level.
(App. at 208-09.) Since Weinstock never raised before the District Court the arguments made in this appeal, they are waived. See Huber v. Taylor, 469 F.3d 67, 74 (3d Cir.2006) (“Generally, failure to raise an issue in the District Court results in its waiver on appeal.”). Furthermore, even if Weinstock had raised that contention at the June 2008 oral argument, we would still consider it waived for the same reason that Weinstock’s objections to specific time entries are waived.
C. The District Court Did Not Err in Amending its Judgment
Weinstock also ascribes error to the District Court’s amendment of the judgment to allow fees owed to Koranda to be paid to the law firm of Tomasko & Koranda, P.C. Weinstock’s argument that there is no evidentiary basis to permit Tomasko & Koranda, P.C. to recover the fee is baseless. It is clear from Koranda’s affidavit that he was a shareholder of Tomasko & Koranda, P.C., that Tomasko & Koranda, P.C. was representing Tomasko in this litigation, and that Koranda functioned as lead counsel for Tomasko. Furthermore, Koranda’s time sheets bear the header “Tomasko & Koranda, P.C.,” reflecting that Koranda generated his fees while working on Tomasko’s lawsuit in his capacity as an attorney of Tomasko & Koranda, P.C.
More importantly, the District Court’s amendment was not erroneous because the fee award belongs to Tomasko, not Koranda. As noted above, pursuant to § 502(g)(1) of ERISA, a district court “in its discretion may allow a reasonable attorney’s fee and costs of action to either party.” 29 U.S.C. § 1132(g)(1) (emphasis added). The statutory language makes clear that the fee belongs to the “party” and not the attorney who represents that party. See Brytus, 203 F.3d at 242 (acknowledging in the ERISA context that “the statutory fee belongs to the litigating party”); see also Cent. States Se. and Sw. Areas Pension Fund v. Cent. Cartage Co., 76 F.3d 114, 115 (7th Cir.1996) (“Most fee-shifting statutes, including ERISA, direct the award to the litigant rather than the lawyer.” (emphasis in original)). Accordingly, the District Court’s amendment of its order was proper. Any interest Koran-da’s estate may or may not have in the fee is a matter to be resolved by Tomasko and the estate.
D. Motion for Reconsideration
We review a denial of a motion for reconsideration for abuse of discretion unless “that denial interprets and applies a legal precept, [in which case] our review is plenary.” In re Tower Air, Inc., 416 F.3d 229 (3d Cir.2005) (quoting Le v. Univ. of Pa., 321 F.3d 403, 405-06 (3d Cir.2003)). “The purpose of a motion for reconsideration is to correct manifest errors of law or fact or to present newly discovered evidence.” Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir.1985). The District Court’s November 21, 2008 memorandum makes clear that Weinstock raised the same arguments in his motion for reconsideration that he now advances on appeal. Since we have determined that the Court properly resolved Tomasko’s motion for attorneys’ fees, the District Court did not err in denying Weinstock’s motion for reconsideration.
III. Conclusion
In sum, the District Court did not abuse its discretion in awarding Tomasko attorneys’ fees nor did the District Court abuse *481its discretion in calculating the amount of the fee. Accordingly, we will affirm its decisions in that regard. We will also affirm the District Court’s amendment of its July 29, 2008 order to allow the fees to be paid to Tomasko & Koranda, P.C.
. Additional facts can be found in our two prior opinions in this case Tomasko v. Ira H. Weinstock, P.C., 80 Fed.Appx. 779 (3d Cir.2003) (“Tomasko I ”) and Tomasko v. Ira H. Weinstock, P.C., 255 Fed.Appx. 676 (3d Cir. 2007) ("Tomasko II ”).
. According to Weinstock, the judgment on the ERISA claim ultimately entitled Tomasko *474to a contribution of approximately $650.00.
. The District Court made this finding in ruling on post-trial motions, one of which pointed out that the Court had not considered Tomasko’s claim for breach of fiduciary duty in its December 18, 2001 findings of fact and conclusions of law.
. The five Ursic factors will be discussed in full in our discussion, infra pp. 8-9.
. Specifically, the Court treated Tomasko's ERISA claim to recover contributions as two separate claims (one as to the $6,100 and one as to the $8,100), one on which Tomasko succeeded and one on which he did not. Taking those two claims with the Tomasko's unsuccessful WPCL claim, the Court allowed recovery of only one-third of Koranda’s fees through December 20, 2001. The District Court made no mention of the breach of fiduciary duty claim, perhaps because that claim was resolved via post-trial motions. See supra note 3.
. The Notice of Appeal reflects that Weinstock only appealed the District Court’s November 21, 2008 order denying Weinstock's motion for reconsideration of the July 29, 2008 memorandum and order, as amended on August 12, 2008. [App. at 1.] However, “[a] timely appeal from a denial of a Rule 59 motion [such as a motion for reconsideration] ‘brings up the underlying judgment for review.'" Fed. Kemper Ins. Co. v. Rauscher, 807 F.2d 345 (3d Cir.1986) (quoting Quality Prefabrication v. Daniel J. Keating Co., 675 F.2d 77, 78 (3d Cir. 1982)).
.The District Court had subject matter jurisdiction pursuant to 28 U.S.C. § 1331 and 29 U.S.C. § 1132(e). Our jurisdiction arises under 28 U.S.C. § 1291.
. Despite our discussion in Tomasko II, Wein-stock still "maintains that Tomasko's misrepresentation is material yet was not properly considered by the District Court.” (Appellants' Op. Br. at 20.) For the reasons stated in Tomasko II, we reject Weinstock’s argument. See Tomasko II, 255 Fed.Appx. at 681-82.
. The District Court’s assessment is actually somewhat favorable to Weinstock considering that the Court did not account for Tomasko's success on his breach of fiduciary duty claim in apportioning the fees.
. Weinstock endeavors to explain away the failure to file a response to Tomasko's addendum by saying that the District Court represented in a January 14, 2008 conference that Weinstock would be able to raise at oral argument any specific objections to the time sheets submitted by Tomasko. Unfortunately for Weinstock, he has pointed to nothing in the record to corroborate that assertion. Indeed, the District Court's January 15, 2008 order, which was entered "after having a conference call with counsel,” does not say anything of the sort. Approximately six months elapsed between the filing of Tomas-ko's addendum to his motion for attorneys' fees and oral argument on the matter. There is no reason why Weinstock could not have presented to the District Court a summary of objections and arguments in response to To-masko's addendum. And, if Weinstock believed that the Court's alleged representation during the phone conference relieved Wein-stock of the obligation to respond, Weinstock should have at least requested that the Court enter an order to that effect or otherwise created a record that would enable us to meaningfully review the assertion that such an unconventional method of responding to detailed written arguments was sanctioned by the District Court.
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OPINION OF THE COURT
NYGAARD, Circuit Judge.
Because our opinion is wholly without precedential value, and because the parties and the District Court are familiar with its operative facts, we offer only an abbreviated recitation to explain why we will affirm the judgment of conviction and sentence of the District Court.
Appellant, Alexandre Gradys, raises two issues on appeal. He asserts that, in violation of Rule 703 of the Federal Rules of Evidence, the District Court erred by failing to conduct a balancing test before admitting the testimony of a fingerprint *482expert, since he relied, in part, on a fingerprint card that the District Court ruled inadmissible.1 Gradys also argues that, even if the District Court is found to have conducted a balancing test it violated Rule 703 by failing to give a special jury instruction on the expert testimony.2 The testimony at issue focused upon whether Gradys’ inked fingerprint impressions taken after his arrest on September 24, 2008 by an Immigration and Customs Enforcement Agent matched a fingerprint record contained in a 2002 Form 1-296, Warrant of Deportation/Removal, that the agent discovered in Gradys’ alien file after the arrest.
Gradys objected during trial to the expert’s testimony, the newer fingerprint record, and the expert’s report. The objections were raised under Rule 16 of the Federal Rules of Criminal Procedure, because the government disclosed the expert, report, and supporting documents two weeks after the discovery deadline. At sidebar, Gradys argued that he was prejudiced because the three weeks between the disclosures and the start of trial was an insufficient amount of time to mount a defense against this evidence. Gradys admitted, however, that he did not file a pretrial motion on these issues in that three-week period because he thought it was probable that the District Court would merely grant a continuance.3 Before returning to open court, the District Court specifically asked Gradys if he thought that special jury instructions were necessary. Gradys made no such request and merely renewed his objection to the admissibility of the expert’s testimony.
The District Court excluded the expert report and the fingerprint record, but it ruled that the expert’s testimony was admissible. The expert testified that the recent fingerprints matched those found on the Form 1-296. Gradys vigorously cross-examined the expert.
We find Gradys’ issues on appeal to be meritless. With regard to Gradys’ original objection to the Rule 16 violation, we have stated in the past that it is the defendant’s burden to demonstrate a likelihood that the verdict would have been different if the government had complied with the discovery rules. United States v. Davis, 397 F.3d 173, 178 (3d Cir.2005). Gradys has utterly failed to meet this standard.
With respect to Gradys’ Rule 703 arguments, we note that these were not raised before the District Court. As such, they *483are reviewed for plain error. United States v. Knight, 266 F.3d 203, 206 (3d Cir.2001). If Gradys can establish all of the elements of plain error, this Court has discretion to award relief, but should only do so in cases of actual innocence or if the error “ ‘seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.’ ” Johnson v. United States, 520 U.S. 461, 467, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997), (quoting United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993).)
The District Court gave Gradys ample opportunity at sidebar to engage in a detailed discussion on the issue of prejudice. Moreover, the 2000 comment to Rule 703 suggests that a court may be obligated to provide a special jury instruction in certain circumstances upon request. Even after he was specifically asked about jury instructions Gradys refrained from requesting the very instruction he now asserts was necessary. For these reasons, we do not find any basis for Gradys’ argument of error. However, even if we were to find error, we conclude that Gradys has failed to demonstrate actual innocence or serious unfairness.
For these reasons, we will affirm the judgment of conviction and sentence of the District Court.
. Fed.R.Evid. 703. The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted. Facts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert's opinion substantially outweighs their prejudicial effect.
. Gradys relies upon the following comment to the 2000 amendments to F.R.E. 703: "If the otherwise inadmissible information is admitted under this balancing test, the trial judge must give a limiting instruction upon request, informing the jury that the underlying information must not be used for substantive purposes.”
.From our own review of the record, we note some confusion about the precise date of the disclosure. Though Gradys’ counsel states clearly that he received the materials three weeks prior to trial, there is a suggestion later in the transcript that he may have received the materials roughly one week before trial. This discrepancy does not change our analysis.
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*496OPINION OF THE COURT
PER CURIAM.
Shi Qing Lin has filed a petition for review of the final order by the Board of Immigration Appeals (“BIA”) affirming the Immigration Judge’s (“IJ’s”) denial of Lin’s requests for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). For the reasons that follow, we will deny the petition for review.
The parties are familiar with the background of this case, and so we provide only a summary of the proceedings. Lin is a native and citizen of the People’s Republic of China who arrived in the United States in April 2005. He was placed in removal proceedings for being an alien present in the United States without being admitted or paroled after inspection by an immigration officer (8 U.S.C. § 1182(a)(6)(A)(i)). He conceded removability. In November 2005, he applied for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”) as a Falun Gong practitioner. The IJ held an evidentiary hearing on Lin’s claims on May 18, 2007.
Lin testified about his involvement with Falun Gong. He stated that he had mild arthritis during childhood, and the condition persisted despite visits to about twelve doctors of Chinese and Western medicine. His maternal uncle introduced him to the practice of Falun Gong, and after study and practice, his arthritic condition substantially improved. In July 1999, his uncle warned him that the Chinese government had banned the practice of Falun Gong. In August 1999, Lin was arrested at home and was taken into detention for a month. During his detention, he was interrogated and beaten, receiving superficial injuries for which he did not seek medical treatment. He was detained with several other Falun Gong practitioners, and he was released only after he signed a document renouncing Falun Gong and promising that he would no longer practice Falun Gong. Lin secretly continued his Falun Gong practice at home, and he stated that village cadres made periodic home checks through 2003. He continued to practice Falun Gong less often, once every two weeks, because he needed to allot more time for his family, and his arthritis was basically cured at that time. He did not leave China until April 2005, waiting until then because he had to care for his mother, who had a stomach illness, and his younger sister was unable to assume care-giving duties until her school graduation.
On cross-examination, when asked for documentation regarding his consultation with twelve doctors in China for his arthritis, Lin stated that his mother attempted to find the doctors, but they all had relocated, died, or changed professions since the time of treatment. Also, Lin indicated that he did not know any of his fellow detainees very well. When confronted with a supporting letter by his uncle stating that he, too, was detained and saw Lin at the police station, Lin stated that his uncle was in another room and that he did not know of his uncle’s presence until later. When asked why he made no mention in his asylum application that his uncle was similarly detained, interrogated, and beaten, Lin stated that his application was his own personal matter. When pressed for an explanation, Lin explained that he did not mention his uncle’s detention in his application out of fear of getting his uncle into trouble. When reminded that he already had mentioned his uncle in his asylum application when describing how he was first introduced to Falun Gong, Lin simply affirmed that he had done so, but he stated that he did not understand why he should have mentioned his uncle’s detention.
In addition to his testimony, Lin submitted supporting documentation, including articles concerning country conditions in *497China with respect to Falun Gong, the 2006 State Department County Report for China, a recent X-ray and report concerning Lin’s right knee, articles concerning Falun Gong’s benefits for arthritic conditions, photographs of Lin at a Falun Gong rally in July 2006 in Washington, D.C., and letters from his mother and his uncle. On June 5, 2007, the IJ found that Lin lacked credibility, denied all forms of relief, and ordered Lin removed to China. On June 19, 2008, the BIA dismissed the appeal, adopting and affirming the portion of the IJ’s decision denying relief and supplementing the decision with respect to the adverse credibility determination. This petition for review followed.
We have jurisdiction to review the BIA’s final order of removal under 8 U.S.C. § 1252(a). Here, the BIA appears to have deferred to the IJ’s credibility determination in some respects, while also remarking that Lin’s explanations for certain credibility issues “may have some merit.” (BIA Jun. 19, 2008 Decision, A.R. 2.) Thus, we will review the IJ’s decision as supplemented by the BIA. See Xie v. Ashcroft, 359 F.3d 239, 242 (3d Cir.2004). Credibility determinations are reviewed under the substantial evidence standard. See id. at 243. Adverse credibility determinations based on speculation or conjecture, rather than on record evidence, are reversible. Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir.2002). Lin’s asylum application was filed after May 11, 2005, and thus the provisions of the REAL ID Act governing credibility determinations in asylum applications apply. See Chukwu v. Att’y Gen., 484 F.3d 185, 189 (3d Cir.2007). Under the REAL ID Act, an adverse credibility determination can be based on inconsistencies, inherent implausibilities, inaccuracies, and other factors, without regard to whether they go to the heart of an applicant’s claim. 8 U.S.C. § 1158(b)(1 )(B)(iii). The Court must uphold the credibility determination of the BIA unless “any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B).
Lin tacitly challenges the applicability of the REAL ID Act provision regarding credibility determinations, contending that the agency’s adverse credibility determination rests upon minor and immaterial discrepancies. We need not consider the effects of the new provisions, however, because we conclude that substantial evidence supports the adverse credibility determination on matters that concern the heart of Lin’s claim. For example, Lin argues that the IJ relied on inconsistencies between Lin’s asylum application and his testimony regarding his education, and between his airport interview by immigration agents and his testimony regarding his delayed departure from China. We note that the BIA appears not to have emphasized these aspects of the IJ’s decision and instead affirmed the adverse credibility finding on other grounds. Specifically, the BIA discussed the discrepancy between Lin’s testimony that he was not very familiar with anyone who was detained with him during his 1999 arrest and Lin’s uncle’s letter indicating that he and Lin had been detained at the same location and time.1 *498Moreover, the BIA rejected Lin’s subsequent explanation that he did not want to risk revealing his uncle’s Falun Gong activities in his written asylum affidavit, pointing out that Lin already had implicated his uncle’s Falun Gong practice in the affidavit. We conclude that the record contains substantial evidence to support the adverse credibility finding and does not compel a contrary finding.2
In sum, we discern no reason to disturb the agency’s denial of asylum and withholding of removal. Lin presents no argument regarding his claim for protection under the CAT. We deem any challenge to the denial of CAT relief to be waived.
We will deny the petition for review.
. The BIA remarked on Lin's lack of credibility regarding his testimony that he did not see his uncle at the police station, noting that "the excuse that the uncle was in a different room and [Lin] did not see him is belied by the uncle’s statement that he saw [Lin].” (BIA Jun. 19, 2008 Decision, A.R. 2.) We note that it is not impossible that Lin's uncle could have seen Lin from a different room without also being seen by Lin; Lin could have had his head turned away from his uncle at the time. Yet this comment by the BIA is inconsequential to its point that Lin knew of his uncle’s detention but omitted that detail from both his application for relief and his testimo*498ny, and his inadequate explanation for the omission reflects negatively on his credibility.
. Because substantial evidence supports the adverse credibility finding, we need not reach Lin's argument that the IJ made unreasonable demands for corroborating evidence in support of his claims. *501holds that, to establish "exceptional and extremely unusual hardship,” an alien must show that the qualifying relative would suffer hardship "substantially beyond” that which would be expected to result from removal. 23 I. & N. Dec. at 60.
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Nigel Nicholas Douglas appeals the district court’s order denying his motion to modify his sentence pursuant to 18 U.S.C.A. § 3582(c)(2) (West 2000 & Supp. 2009). We have reviewed the record and find no reversible error. Accordingly, we deny Douglas’s motion for grand jury minutes and discovery and affirm for the reasons stated by the district court. See *511United States v. Douglas, No. 2:93-cr-00131-HCM-7 (E.D. Va. filed June 1, 2009 & entered June 2, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Plaintiffs appeal the district court’s order entering judgment in Plaintiffs’ action against Defendant and declaring repair costs to be the proper measure of covered loss owed to Plaintiffs by Defendant. We have reviewed the record and find no reversible error. Accordingly, we affirm the district court’s judgment. See Gellman v. The Cincinnati Ins. Co., 602 F.Supp.2d 705 (W.D.N.C.2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.
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ON MOTION
ORDER
Upon consideration of the appellant’s motion to dismiss his appeal,
IT IS ORDERED THAT:
(1) The motion is granted. The appeal is dismissed.*
(2) Each side shall bear its own costs.
The appellant asks that the dismissal be entered as "without prejudice.” It is not the court's usual practice to designate a dismissal as being with or without prejudice.
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Eduardo E. Mantilla appeals the district court’s order granting The Brickman Group Limited LLC’s summary judgment motion on his sex discrimination claim, brought pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e to 2000e-17 (2006), and his age discrimination claim, brought pursuant to the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. §§ 621 to 634 (2006). We have reviewed the record and find no reversible error. Accordingly, we deny Mantilla’s motion for transcript at government expense and affirm the district court’s judgment. See Mantilla v. The Brickman Group Ltd. LLC, No. 2:08-cv-00448-RBS-FBS (E.D. Va. June 30, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Plaintiffs appeal the district court’s order entering judgment in Plaintiffs’ action against Defendant and declaring repair costs to be the proper measure of covered loss owed to Plaintiffs by Defendant. We have reviewed the record and find no reversible error. Accordingly, we affirm the district court’s judgment. See Gellman v. The Cincinnati Ins. Co., 602 F.Supp.2d 705 (W.D.N.C.2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8475853/
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Dismissed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Renee R. Berry appeals the district court’s order dismissing without prejudice Berry’s civil complaint. We have reviewed the record and find no reversible error. *514Accordingly, we deny leave to proceed in forma pauperis and dismiss the appeal for the reasons stated by the district court. Berry v. Locke, No. 1:08-cv-00697-JCC-TRJ (E.D.Va. June 5, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
DISMISSED.
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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/8475854/
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Dismissed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Raheem Muhammad seeks to appeal the district court’s order remanding this case back to state court. Because the remand order was based on a lack of subject-matter jurisdiction, we conclude we lack jurisdiction over this appeal. See 28 U.S.C. § 1447(d) (2006); Things Remembered, Inc. v. Petrarca, 516 U.S. 124, 127-28, 116 S.Ct. 494, 133 L.Ed.2d 461 (1995); Ellenburg v. Spartan Motors Chassis, Inc., 519 F.3d 192, 196 (4th Cir.2008); Borneman v. United States, 213 F.3d 819, 824-25 (4th Cir.2000).
Accordingly, we grant Appellee’s motion to dismiss appeal, deny Muhammad’s motion for stay pending appeal and motion to strike, and we dismiss the appeal. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
DISMISSED.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8475859/
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
David Lee Garner appeals the district court’s order accepting the recommenda*520tion of the magistrate judge and denying relief on his complaint filed pursuant to Bivens v. Six Unknown Named, Agents of Fed. Bureau of Narcotics, 403 U.S. 888, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Garner v. U.S. Dist. Ct. for SC, No. 3:08-cv-03913-TLW (D.S.C. July 21, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8475855/
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Dismissed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Raheem Muhammad seeks to appeal the district court’s order remanding this case back to state court. Because the remand order was based on a lack of subject-matter jurisdiction, we conclude we lack jurisdiction over this appeal. See 28 U.S.C. § 1447(d) (2006); Things Remembered, Inc. v. Petrarca, 516 U.S. 124, 127-28, 116 S.Ct. 494, 133 L.Ed.2d 461 (1995); Ellenburg v. Spartan Motors Chassis, Inc., 519 F.3d 192, 196 (4th Cir.2008); Borneman v. United States, 213 F.3d 819, 824-25 (4th Cir.2000).
Accordingly, we grant Appellee’s motion to dismiss appeal, deny Muhammad’s motion for stay pending appeal and motion to strike, and we dismiss the appeal. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
DISMISSED.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8475857/
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Vincent B. Best appeals the district court’s order denying his motion for reduction of sentence under 18 U.S.C. § 3582(c) (2006). We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Best, No. 3:93-cr-00216-GCM-3 (W.D.N.C. July 9, 2009). We deny Best’s motions to remand the case in full and to expedite the decision. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8475858/
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
David Lee Garner appeals the district court’s order accepting the recommenda*520tion of the magistrate judge and denying relief on his complaint filed pursuant to Bivens v. Six Unknown Named, Agents of Fed. Bureau of Narcotics, 403 U.S. 888, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Garner v. U.S. Dist. Ct. for SC, No. 3:08-cv-03913-TLW (D.S.C. July 21, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8475861/
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Anthony K. Rouse appeals the district court’s order denying his motion to modify his sentence pursuant to 18 U.S.C.A. § 3582(c)(2) (West 2000 & Supp.2009). We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. See United States v. Rouse, No. 3:01-cr-00015-jpj-2 (W.D.Va. Sept. 4, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8475863/
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Richard W. Bell appeals the district court’s order dismissing his 42 U.S.C. § 1983 (2006) action as frivolous. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Bell v. Franis, No. 1:09-cv-00650-JCC-IDD, 2009 WL 2877079 (E.D.Va. Sept. 3, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before *523the court and argument would not aid the decisional process.
AFFIRMED.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8475865/
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Kareem A. Kirk appeals the district court’s order dismissing his 42 U.S.C. § 1988 (2006) complaint. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Kirk v. Curran, No. 3:09-cv-00301-GCM, 2009 WL 2423971 (W.D.N.C. Aug. 4, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8475867/
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jamie Lamont Buchanan appeals the district court’s order denying his motion for a reduction of sentence pursuant to 18 U.S.C. § 3582(c) (2006). We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Buchanan, No. 3:93-cr-00039-GCM-3 (W.D.N.C. Aug. 12, 2009). We *531dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8475868/
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Michael Edward Kennedy, a federal prisoner, appeals the district court’s order denying relief on his 28 U.S.C. § 2241 (2006) petition. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Kennedy v. Allera, No. 1:07-cv-02300-BEL, 2009 WL 2447494 (D.Md. Aug. 7, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8475866/
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jamie Lamont Buchanan appeals the district court’s order denying his motion for a reduction of sentence pursuant to 18 U.S.C. § 3582(c) (2006). We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Buchanan, No. 3:93-cr-00039-GCM-3 (W.D.N.C. Aug. 12, 2009). We *531dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8475869/
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Michael Edward Kennedy, a federal prisoner, appeals the district court’s order denying relief on his 28 U.S.C. § 2241 (2006) petition. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Kennedy v. Allera, No. 1:07-cv-02300-BEL, 2009 WL 2447494 (D.Md. Aug. 7, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8475872/
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Dismissed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
David A. Crabtree seeks to appeal the district court’s order dismissing without prejudice his 42 U.S.C. § 1983 (2006) complaint. This court may exercise jurisdiction only over final orders, 28 U.S.C. § 1291 (2006), and certain interlocutory and collateral orders, 28 U.S.C. § 1292 (2006); Fed.R.Civ.P. 54(b); Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). The order Crabtree seeks to appeal is neither a final order nor an appealable interlocutory or collateral order. See Domino Sugar Corp. v. Sugar Workers Local Union 392, 10 F.3d 1064, 1066 (4th Cir.1993). Accordingly, we dismiss the appeal for lack of jurisdiction. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
DISMISSED.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8475874/
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Francisco Bryan appeals the district court’s order granting his motion for sentence reduction under 18 U.S.C. § 3582(c)(2) (2006). We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Bryan, No. 5:94-cr00068-F (E.D.N.C. Sept. 29, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8475880/
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Michael Edward Jones appeals a district court order denying his motion for a reduction of his sentence under 18 U.S.C. § 3582(c)(2) (2006). The district court concluded Jones was not entitled to a reduction because after considering Amendment 706 of the Sentencing Guidelines, his Guidelines range of imprisonment remained the same. We have reviewed the record and find no error. Accordingly, we affirm. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8475870/
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Chalmers Lavette Hendricks appeals a district court order denying his motion for a reduction of his sentence under 18 U.S.C. § 3582(c)(2) (2006). The district court concluded Hendricks was not entitled to a reduction because even with the benefit of Amendment 706 of the Sentencing Guidelines, his Guidelines range of imprisonment remained the same. We have reviewed the record and find no error. Accordingly, we affirm. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8475873/
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Dismissed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
David A. Crabtree seeks to appeal the district court’s order dismissing without prejudice his 42 U.S.C. § 1983 (2006) complaint. This court may exercise jurisdiction only over final orders, 28 U.S.C. § 1291 (2006), and certain interlocutory and collateral orders, 28 U.S.C. § 1292 (2006); Fed.R.Civ.P. 54(b); Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). The order Crabtree seeks to appeal is neither a final order nor an appealable interlocutory or collateral order. See Domino Sugar Corp. v. Sugar Workers Local Union 392, 10 F.3d 1064, 1066 (4th Cir.1993). Accordingly, we dismiss the appeal for lack of jurisdiction. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
DISMISSED.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8475877/
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Kendall Cohen appeals the district court’s order denying his Fed.R.Civ.P. 60(b)(1) motion to reconsider its order adopting the magistrate judge’s recommendation to grant Defendants summary judgment on Cohen’s 42 U.S.C. § 1983 (2006) claims against them. We have reviewed the record and find no reversible error. Accordingly, we affirm the district court’s order. See Cohen v. Cannon, No. 2:08-cv-03327-HMH (D.S.C. Aug. 26, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8475879/
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Charles Emanuel Rash appeals the district court’s order denying his motion for a reduction of sentence, which Rash styled as a petition for writ of audita querela. We have reviewed the record and find no reversible error. Accordingly, we affirm *543for the reasons stated by the district court. United States v. Rash, No. 3:01-cr-00025-JPB-DJJ-1 (N.D.W.Va. Sept. 15, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8475883/
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Dismissed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Joe Lee Fulgham appeals the district court’s order dismissing his 42 U.S.C. § 1983 (2006) complaint under 28 U.S.C. § 1915A(b) (2006). We have reviewed the record and find that this appeal is frivolous. Accordingly, we dismiss the appeal for the reasons stated by the district court. Fulgham v. Virginia, No. 2:09-cv-00184-JBF-TEM (E.D.Va. Apr. 29, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
DISMISSED.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8475896/
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PER CURIAM: *
The attorney appointed to represent Valentin Ibarra-Luna 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). Ibarra-Luna has not filed a response. Our independent review of the record and counsel’s brief discloses no nonfrivolous issue for appeal. Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is excused from further responsibilities herein, and the APPEAL IS DISMISSED. See 5th Cir. R. 42.2.
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8475882/
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Dismissed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Joe Lee Fulgham appeals the district court’s order dismissing his 42 U.S.C. § 1983 (2006) complaint under 28 U.S.C. § 1915A(b) (2006). We have reviewed the record and find that this appeal is frivolous. Accordingly, we dismiss the appeal for the reasons stated by the district court. Fulgham v. Virginia, No. 2:09-cv-00184-JBF-TEM (E.D.Va. Apr. 29, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
DISMISSED.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8475884/
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
David Harwood appeals the magistrate judge’s * order dismissing his Federal Tort Claims Act, 28 U.S.C. §§ 2671-2680 (2006) action against Defendants. We have reviewed the record and find no reversible error. Accordingly, we affirm the magistrate judge’s order. See Harwood v. United States, No. 1:08-cv-00060, 2009 WL 2215080 (S.D.W.Va. July 23, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.
The parties consented to the jurisdiction of the magistrate judge under 28 U.S.C. § 636(c) (2006).
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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/8475886/
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Dismissed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Raheem Muhammad seeks to appeal the district court’s order remanding this case back to state court. Because the remand order was based on a lack of subject-matter jurisdiction, we conclude we lack jurisdiction over this appeal. See 28 U.S.C. § 1447(d) (2006); Things Remembered, Inc. v. Petrarca, 516 U.S. 124, 127-28, 116 S.Ct. 494, 133 L.Ed.2d 461 (1995); Ellenburg v. Spartan Motors Chassis, Inc., 519 F.3d 192, 196 (4th Cir.2008); Borneman v. United States, 213 F.3d 819, 824-25 (4th Cir.2000).
Accordingly, we dismiss the appeal. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
DISMISSED.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8475888/
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*548Petitions dismissed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jose Nelson Rios-Guevara and his minor son, N.W.R., both natives and citizens of El Salvador, seek review of an order of the Board of Immigration Appeals denying relief from removal. We have reviewed the administrative record and found that the petitions for review were not timely filed. See 8 U.S.C. § 1252(b)(1) (2006). Accordingly, we dismiss the petitions for lack of jurisdiction. See Stone v. INS, 514 U.S. 386, 405, 115 S.Ct. 1537, 131 L.Ed.2d 465 (1995). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
PETITIONS DISMISSED.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8475890/
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Ralph Jaffe appeals the district court’s order dismissing his civil action. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. See Jaffe v. O’Malley, No. 1:09-cv-02120-BEL (D.Md. Sept. 11, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8478315/
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ON MOTION
ORDER
Upon consideration of the unopposed motion to voluntarily dismiss 2009-1174 and the unopposed motion to reform the caption to change an appellee’s name from “Sensormatic Electronics Corporation” to “Sensormatic Electronics, LLC”,
IT IS ORDERED THAT:
(1) The motions are granted. The revised official caption is reflected above.
(2) Each side shall bear its own costs in 2009-1174.
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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/8475885/
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
David Harwood appeals the magistrate judge’s * order dismissing his Federal Tort Claims Act, 28 U.S.C. §§ 2671-2680 (2006) action against Defendants. We have reviewed the record and find no reversible error. Accordingly, we affirm the magistrate judge’s order. See Harwood v. United States, No. 1:08-cv-00060, 2009 WL 2215080 (S.D.W.Va. July 23, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.
The parties consented to the jurisdiction of the magistrate judge under 28 U.S.C. § 636(c) (2006).
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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/8475887/
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Dismissed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Raheem Muhammad seeks to appeal the district court’s order remanding this case back to state court. Because the remand order was based on a lack of subject-matter jurisdiction, we conclude we lack jurisdiction over this appeal. See 28 U.S.C. § 1447(d) (2006); Things Remembered, Inc. v. Petrarca, 516 U.S. 124, 127-28, 116 S.Ct. 494, 133 L.Ed.2d 461 (1995); Ellenburg v. Spartan Motors Chassis, Inc., 519 F.3d 192, 196 (4th Cir.2008); Borneman v. United States, 213 F.3d 819, 824-25 (4th Cir.2000).
Accordingly, we dismiss the appeal. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
DISMISSED.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8475889/
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*548Petitions dismissed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jose Nelson Rios-Guevara and his minor son, N.W.R., both natives and citizens of El Salvador, seek review of an order of the Board of Immigration Appeals denying relief from removal. We have reviewed the administrative record and found that the petitions for review were not timely filed. See 8 U.S.C. § 1252(b)(1) (2006). Accordingly, we dismiss the petitions for lack of jurisdiction. See Stone v. INS, 514 U.S. 386, 405, 115 S.Ct. 1537, 131 L.Ed.2d 465 (1995). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
PETITIONS DISMISSED.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8475893/
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PER CURIAM: *
The Federal Public Defender appointed to represent Javier Arinson Landazuri has *568moved 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). Landazuri has filed a response. Our independent review of the record, counsel’s brief, and Landazuri’s response discloses no nonfrivolous issue for appeal. Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is excused from further responsibilities herein, and the APPEAL IS DISMISSED. See 5th Cir. R. 42.2.
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be *568published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.
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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/8475897/
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PER CURIAM: *
The attorney appointed to represent Valentin Ibarra-Luna 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). Ibarra-Luna has not filed a response. Our independent review of the record and counsel’s brief discloses no nonfrivolous issue for appeal. Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is excused from further responsibilities herein, and the APPEAL IS DISMISSED. See 5th Cir. R. 42.2.
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8478316/
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ON MOTION
ORDER
Upon consideration of the unopposed motion to voluntarily dismiss 2009-1174 and the unopposed motion to reform the caption to change an appellee’s name from “Sensormatic Electronics Corporation” to “Sensormatic Electronics, LLC”,
IT IS ORDERED THAT:
(1) The motions are granted. The revised official caption is reflected above.
(2) Each side shall bear its own costs in 2009-1174.
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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/8475898/
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PER CURIAM: *
The attorney appointed to represent Makeba Dehron Thomas has moved for leave to withdraw and has filed a brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Thomas has not filed a response. Our independent review of the record and counsel’s brief discloses no nonfrivolous issue for appeal. Accordingly, counsel’s motion for leave to withdraw is GRANTED, *580counsel is excused from further responsibilities herein, and the APPEAL IS DISMISSED. See 5th Cir. R. 42.2.
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.
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PER CURIAM: *
The attorney appointed to represent Alejandro Flores 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). 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 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.
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PER CURIAM: *
The attorney appointed to represent Darrell M. Pollard 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). Pollard has filed a response. Our independent review of the record, counsel’s brief, and Pollard’s response 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 the limited circumstances set forth in 5th Cir R. 47.5.4.
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ORDER
Bernell Marshall pleaded guilty to conspiring to distribute cocaine, see 21 U.S.C. §§ 846, 841(a)(1), and the district court sentenced him to 88 months’ imprisonment. Marshall appealed, but his appointed attorneys have moved to withdraw because they are unable discern a nonfriv-olous basis for appeal. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Marshall has not responded to our invitation to comment on counsel’s motion, see Cir. R. 51(b), and we accordingly confine our review to the issues identified in counsel’s brief. See United States v. Schuh, 289 F.3d 968, *705973-74 (7th Cir.2002). Counsel inform us that Marshall does not wish to challenge his guilty plea, and therefore counsel appropriately omit any evaluation of Marshall’s plea colloquy, see Fed.R.Crim.P. 11(b), or the voluntariness of the guilty plea. See United States v. Knox, 287 F.3d 667, 670-71 (7th Cir.2002).
All that’s left for counsel to evaluate are potential challenges to Marshall’s prison sentence. Counsel first consider whether Marshall could challenge the district court’s finding that the conspiracy involved between five and fifteen kilograms of cocaine. Counsel appropriately reject this potential argument as frivolous because Marshall expressly withdrew his objection to this calculation and thus waived the argument. See United States v. Sensmeier, 361 F.3d 982, 986-87 (7th Cir.2004); United States v. Cunningham, 405 F.3d 497, 502 (7th Cir.2005). Counsel next mention that the district court failed to make factual findings regarding Marshall’s objection to allegations in the presentence report that he served as an “enforcer” for the head of the conspiracy and on at least one occasion assaulted a customer to collect a drug debt. But, as counsel point out, the court did not rely upon these allegations and so the error was limited to a violation of Federal Rule of Criminal Procedure 32(i)(3)(B), which requires a sentencing court to explicitly state on the record when it had determined that a ruling on disputed information in a presentence report is not necessary because the information will have no effect on the defendant’s sentence. See, e.g., United States v. Cunningham, 429 F.3d 673, 678-79 (7th Cir.2005). That error, as far as this record shows, was harmless, see United States v. Clanton, 538 F.3d 652, 656-57 (7th Cir.2008); United States v. Slaughter, 900 F.2d 1119, 1123 (7th Cir.1990), and if necessary can be rectified through administrative determination by the Bureau of Prisons or by a petition for habeas corpus under 28 U.S.C. § 2241. See United States v. Saeteurn, 504 F.3d 1175, 1180-81 (9th Cir.2007); United States v. Yakle, 463 F.3d 810, 811 (8th Cir.2006); United States v. Engs, 884 F.2d 894, 897 (5th Cir.1989).
Finally, counsel analyze the reasonableness of Marshall’s prison sentence. With a minor-role reduction, see U.S.S.G. § 3B1.2, and credit for acceptance of responsibility, id. § 3E1.1, Marshall’s total offense level of 26, combined with his criminal history category of IV, yielded a guidelines imprisonment range of 92 to 112 months. The court evaluated the factors set forth in 18 U.S.C. § 3553(a) and explained that Marshall’s steps to change his life, including enrolling in school, getting a job, and refraining from using drugs, warranted a sentence below the range but, given the seriousness of his drug offense, not as low as the 72 months Marshall suggested. The court instead settled upon a term of 88 months, still below the suggested range. We have never found a below-range sentence to be unreasonably high, see, e.g., United States v. Wallace, 531 F.3d 504, 507 (7th Cir.2008), and counsel are unable to identify any reason why this case might be different.
Accordingly, we GRANT counsel’s motion to withdraw and DISMISS the appeal.
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ORDER
Joseph Kaye filed suit against Michael D’Amato, Julilly Kohler, Lincoln Fowler, Shirley Ferguson, and Lisa Christopher-son, alleging violations of the Racketeer *708Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. §§ 1962(b)-(d), and its state law counterpart, the Wisconsin Organized Crime Control Act (“WOCCA”), Wis. Stat. §§ 946.80-88 (2005). Kaye, an attorney and real estate developer, claims he was wrongfully denied the opportunity to purchase a certain parcel of land owned by the City of Milwaukee because of Defendants’ participation in an illicit land swap agreement. He also alleges, in connection with this questionable exchange of land, that Defendants conspired to rig a neighborhood association election in order to maintain control over decisions regarding the development of land in Milwaukee’s East Village Neighborhood. The district court granted Defendants’ motion to dismiss for failure to state a cause of action and imposed sanctions under Federal Rule of Civil Procedure 11. Kaye v. D'Amato, 2008 WL 5268746 (E.D.Wis. Dec.18, 2008). Kaye appeals both orders.
Because we And that Kaye cannot satisfy RICO’s continuity requirement, we AFFIRM the district court’s orders dismissing the complaint and imposing sanctions.
I. Background
Milwaukee’s Department of City Development (“DCD”) and its two sub-departments, the City Planning Commission (“CPC”) and the Redevelopment Authority of the City of Milwaukee (“RACM”), handle decisions regarding city-owned real estate. All matters administered by the DCD and its sub-departments, including zoning changes or exemptions, blight designations, and sales of city-owned land, require the approval of the Common Council’s sub-committee for Zoning, Neighborhoods, and Development (“ZND”). Development decisions in Milwaukee’s Third Aldermanic District, called the East Village Neighborhood, require the additional endorsement of the East Village Association (“EVA”).
Defendants held seats on the boards of these entities: Kohler was a Commissioner at the CPC; Fowler was a Commissioner at the RACM; Ferguson and Christopher-son were directors of the EVA; and D’Am-ato was both the alderman of the Third Aldermanic District and the chairman of the ZND. Kaye alleges that Defendants’ positions of authority on these boards and their collaboration with each other led to their control over the DCD and EVA, which, in turn, allowed them to control the sales and land development decisions in the East Village Neighborhood.
A. The Land Sales
In March 2004, Kaye attempted to purchase a city-owned parcel of land called Kane Place, which is located in the East Village Neighborhood. He alleges the RACM and DCD refused to sell him Kane Place because the land had been promised to Kohler and had been held for her by the DCD, tax free, since 2000. According to Kaye, his proposal for the land was “better” and $500 higher than Kohler’s. Kaye contends that the CPC and ZND improperly declared Kane Place blighted and conveyed it to the RACM in order to privately sell it to Kohler. Kohler eventually acquired Kane Place, and various benefits associated with the land, after receiving the required approval of Defendants acting in their official positions.
Kaye alleges that, contemporaneous with the sale of Kane Place to Kohler, the CPC sold another city-owned property, Humboldt Boulevard, in a private sale to a company owned by Fowler. Kaye alleges the property was sold to Fowler despite the existence of a $250,000 bid from a competing developer who had already secured financing and invested money in redevelopment plans. Kaye further alleges that the DCD stopped the sale to this *709developer in order to sell the property to Fowler for $10,000.
At some point, Kaye complained publicly about D’Amato’s involvement in selling city-owned land to Kohler. As a result, Kaye alleges that D’Amato publicly announced at a June 11, 2004 park dedication that Kaye was “blacklisted” from buying city land in the future. Kaye believes the goal of the public comment was to deter Kaye from any further public criticism of D’Amato.
B. The EVA Ordinance and Election
In addition to improperly selling and financing city-owned property, Kaye alleges Defendants engaged in misconduct stemming from the enactment of a zoning ordinance in the East Village Neighborhood. D’Amato and Kohler worked with EVA directors to enact the Conservation Overlay District Ordinance (“the Ordinance”), a restrictive historical preservation zoning ordinance governing the East Village Neighborhood, which prohibits rep-latting lots or renovating or building homes that look dissimilar from the lots and houses around them. East Village residents who opposed the ordinance spoke against it at a June 8, 2004 EVA meeting.
Tensions surrounding the Ordinance continued, and in an undated incident, D’Amato allegedly removed a “No Overlay District Aid. D’Amato” sign from Ordinance opposition spokesperson Jill Bon-dar’s yard, followed up with a telephone message informing her that he had taken the sign, and told her the Department of Public Works, the division of the City that employs Bondar, was looking for whomever posted the sign. Kaye alleges D’Amato aeted with the intent to intimidate or threaten Bondar in order to prevent her from protesting the EVA’s and D’Amato’s actions with respect to the Ordinance.
In the next EVA Board election, property owners who disapproved of the incumbent EVA directors supported their preferred candidates. Kaye alleges that Kohler, D’Amato, Ferguson and Christo-pherson fraudulently schemed via e-mail to have their own candidates elected over the objection of the majority. The alleged purpose of this scheme was to ensure that D’Amato and Kohler maintained control of the EVA, which would allow them to continue favorable treatment to preferred developers. The alleged scheme was executed by changing the voting method from the simple majority vote required by the EVA bylaws, to a single transferable voting method. To change the voting method, Kaye alleges that Ferguson sent a single e-mail stating: ‘We need to vote in this order for At Large nominations:! Mark, 2 Todd, 3 Ginger, 4 Norbert — do not deviate from that order. DO NOT vote for anyone else.” He also alleges that the neighborhood association was not informed of the new voting method until minutes before the election.
The new neighborhood association’s inaugural meeting was held on November 2, 2005. Although the meeting was announced as a public meeting to address matters of public concern and was held in a public building, three Milwaukee police officers and Ferguson’s son allegedly stood at the entrance of the building in order to keep unidentified “disfavored citizens” from entering the meeting. Kaye contends that the officers threatened these unidentified residents with arrest if they tried to enter the meeting. He further alleges that D’Amato’s aide, Sam Rowen, was witness to the incident.
Kaye makes numerous other allegations, but they either are not relevant under his RICO or WOCCA claims, do not implicate any Defendants, or do not evidence predicate acts.
*710C. Procedural History
On September 13, 2005, Kaye filed a complaint against Defendants alleging RICO and WOCCA violations. Defendants moved to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) and to impose sanctions pursuant to Federal Rule of Civil Procedure 11. The district court dismissed Kaye’s complaint and imposed sanctions against him, finding that his allegations had no legal basis and that he should have known as much. Kaye appealed. We declined to hear the appeal for lack of jurisdiction, finding that the orders were not final and appealable. Kaye v. City of Milwaukee, 258 Fed.Appx. 17 (7th Cir.2007). On remand, Kaye filed an amended complaint, and Defendants moved to dismiss. The district court granted the motion, finding (1) that Kaye had pleaded only two predicate acts which amounted to isolated events; and (2) that the two events did not demonstrate the continuity necessary to establish a pattern of racketeering. The district court also granted Defendants’ motion to impose sanctions under Federal Rule of Civil Procedure 11. Kaye now appeals.
II. Analysis
A. Legal Standards
We review a district court’s order granting a motion to dismiss for failure to state a claim de novo and affirm if the complaint fails to allege facts sufficient to “state a claim for relief that is plausible on its face.” Justice v. Town of Cicero, 577 F.3d 768, 771 (7th Cir.2009) (quoting Ashcroft v. Iqbal, — U.S. -, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009)). The plausibility standard asks for more than a possibility that a defendant has acted unlawfully. Iqbal, 129 S.Ct. at 1949. To survive a motion to dismiss, a plaintiff must plead factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. M; Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 820 (7th Cir.2009). We construe a complaint in the light most favorable to the plaintiff, accepting as true all well-pleaded facts, and drawing all reasonable inferences in his favor. Rodriguez, 577 F.3d at 820.
While dismissal of a RICO claim is appropriate if the plaintiff fails to allege sufficient facts to state a claim that is plausible on its face, the adequate number of facts varies depending on the complexity of the case. Limestone Dev. Corp. v. Vill. of Lemont, IL, 520 F.3d 797, 803 (7th Cir.2008) (quoting Bell Atlantic v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). Allegations of fraud in a civil RICO claim are subject to the heightened pleading standard set forth in Federal Rule of Civil Procedure 9(b), which requires a plaintiff to plead all allegations of fraud with particularity. Slaney v. Int'l Amateur Athletic Fed’n, 244 F.3d 580, 597 (7th Cir.2001). This requires specifying the time, place, and content of the alleged fraudulent communication. Goren v. New Vision Int’l, Inc., 156 F.3d 721, 726 (7th Cir.1998).
A RICO claim is a unique cause of action that does not concern all instances of wrongdoing, but focuses on the limited purpose of “eradicating organized, long-term, habitual criminal activity.” Gamboa v. Velez, 457 F.3d 703, 705 (7th Cir.2006). A RICO plaintiff must prove four elements: (1) conduct; (2) of an enterprise; (3) through a pattern; (4) of racketeering activity. Id. “Racketeering activity” in this case means “any act or threat involving ... bribery [or] extortion ... which is chargeable under State law and punishable by imprisonment for more than one year; or any act which is indictable under ... section 1343 (relating to wire fraud).” 18 U.S.C. § 1961(1). A “pattern of racketeering activity” requires at least two predi*711cate acts within a ten-year period. 18 U.S.C. § 1961(5). Establishing a pattern also requires a showing that “the racketeering predicates are related, and that they amount to or pose a threat of continued criminal activity.” H.J. Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229, 239, 109 S.Ct. 2893, 106 L.Ed.2d 195 (1989).
We now turn to the elements in contention in this case.
B. Enterprise
RICO makes it “unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise’s affairs through a pattern of racketeering activity....” 18 U.S.C. § 1962(c); Boyle v. United States, — U.S. -, 129 S.Ct. 2237, 2243, 173 L.Ed.2d 1265 (2009). A RICO enterprise “includes any individual, partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact although not a legal entity.” 18 U.S.C. § 1961(4). An association-in-fact includes “a group of persons associated together for a common purpose of engaging in a course of conduct” and can be shown “by evidence of an ongoing organization, formal or informal, and by evidence that the various associates function as a continuing unit.” Boyle, 129 S.Ct. at 2243.
Kaye alleges the following four enterprises in his amended complaint: (1) the City Plan Commission; (2) the Redevelopment Authority; (3) the ZND; and (4) the EVA ... None of these by itself amounts to a separate RICO enterprise, which requires both interpersonal relationships and a common interest. See Boyle, 129 S.Ct. at 2244. Although Kaye labels each of these organizations an enterprise, none of the allegations in his amended complaint suggests the organizations themselves had any interest in Defendants’ misconduct. Instead, his allegations merely establish that the Defendants, though associated with these organizations, operated collectively in them individual capacities. However, because we are required to make all reasonable inferences in Kaye’s favor, and because there are clearer reasons Kaye’s claims fail, we generously infer from his allegations an association-in-fact among Defendants. We assume that Defendants abused their positions on these various boards to band together for the purpose of facilitating an illicit land swap and engaged in other activities with the goal of ensuring other privileges associated with the sale and development of the land.
C. Predicate Acts
Kaye alleges a number of predicate acts in his amended complaint, two of which the district court found to have been properly pleaded under the Rule 12(b)(6) standard (D’Amato’s public “blacklisting” of Kaye and his barring “disfavored citizens” from a public meeting). In total, the alleged predicate acts include allegations of extortion, bribery, and fraud.
1. Extortion
Kaye alleges three acts of extortion: (1) D’Amato’s public “blacklisting” of Kaye from future real estate dealings with the City; (2) Milwaukee police officers’ threats to arrest “disfavored citizens” who tried to enter a public neighborhood association meeting; and (3) D’Amato’s removal of Jill Bondar’s yard sign and follow-up phone message. He alleges that each of these acts violate the Wisconsin extortion statute, which states:
Whoever, either verbally or by any written or printed communication, maliciously threatens to accuse or accuses another of any crime or offense, or threatens or commits any injury to the person, *712property, business, profession, calling or trade, or the profits and income of any business, profession, calling or trade of another, with intent thereby to extort money or any pecuniary advantage whatever, or with intent to compel the person so threatened to do any act against the person’s will or omit to do any lawful act, is guilty of a Class H felony.
Wis. Stat. § 943.30 (2005).
Of Kaye’s three extortion allegations, the district court found that two meet Wisconsin’s definition of extortion. First, Kaye alleges D’Amato publicly “blacklisted” him from future real estate dealings with the city as a means of preventing Kaye’s public criticism of D’Amato’s involvement in questionable sales of city-owned land. We agree with the district court that this allegation meets Wisconsin’s extortion definition because it plausibly could involve the threat of financial injury to Kaye, made by a defendant with the intent to prevent Kaye from engaging in lawful criticism of a public official.
Second, Kaye alleges that Milwaukee police officers barred unidentified “disfavored citizens” from entering the November 2, 2005 EVA meeting by threatening arrest. Kaye asserts that threatening these citizens with arrest in order to prevent them from lawfully attending the meeting was extortion, and that the court should infer D’Amato was responsible even though he was not personally present at the meeting, because one of his aides was a witness to the event. The district court concluded this was a logical inference, albeit not necessarily the correct one, and agreed that Kaye’s allegations met Wisconsin’s definition of extortion. We, however, believe the district court was excessively generous. In order to find a predicate act of extortion from these allegations, we must infer not only that D’Amato was responsible from his aide’s presence, but also that the officers actually barred someone from entering. Kaye alleged in his complaint that “disfavored citizens” were barred from the meeting, but he did not identify a single person who was actually barred. While we are required to make all reasonable inferences in Kaye’s favor, the complaint does not contain facts to support these inferences, and without them the claim is not plausible. See Iqbal, 129 S.Ct. at 1944. But, as discussed below, because Kaye’s RICO claim fails for other reasons, we will assume for our purposes, as the district court did, that “banning” these unidentified citizens sufficiently constitutes a predicate act under RICO.
Third, Kaye alleges that D’Amato engaged in extortion when he removed a political opposition sign from Jill Bondar’s yard and subsequently left a phone message informing her that police and city officials where she worked were looking for the person who posted it. The district court found that these allegations did not constitute a sufficiently alleged act of extortion. In making its determination, the court took judicial notice of another case, Bondar v. D’Amato, 2008 WL 906129 (E.D.Wis. Mar.31, 2008), arising from the same event, in which the court found that the sign in question was actually affixed to a city-owned tree located on a public thoroughfare — in front of Ms. Bondar’s property, not on it — in violation of a Milwaukee City ordinance, and as such D’Amato was justified in removing the sign. The district court further concluded that D’Amato’s message could not reasonably be construed as threatening or harassing. Like the district court, we do not see how removing an illegally posted sign, and leaving a message requesting information about the identity of the person who post*713ed it, meets the statutory definition of extortion.
2. Bribery
Kaye alleges that Kohler and Fowler steered the sales of city-owned Kane Place and Humboldt Boulevard to one another as part of an illicit agreement. He claims this constitutes two acts of bribery in violation of the Wisconsin bribery statute, which states:
Any public officer or public employee who directly or indirectly accepts or offers to accept any property or any personal advantage, which the officer or employee is not authorized to receive, pursuant to an understanding that the officer or employee will act in a certain manner in relation to any matter which by law is pending or might come before the officer or employee in the officer’s or employer’s capacity as such officer or employee or that the officer or employee will do or omit to do any act in violation of the officer’s or employee’s lawful duty.
Wis. Stat. § 946.10 (2005).
The district court found, and we agree, that Kaye’s bribery allegations lack the factual support to constitute sufficiently alleged predicate acts. Kaye fails to allege even a single communication between Fowler and Kohler or any other fact which would support a reasonable inference of an illicit agreement or that one sale was compensation for the other. Kaye asked the court to infer such an agreement based on his allegations that he offered a “better proposal and higher bid” on Kane Place and that another developer offered a bid twenty-five times higher than what Fowler paid for Humboldt Boulevard, but the district court concluded that the city sold Kane Place to Kohler because her proposed project would be more beneficial to city development and tax revenues, and sold Humboldt Boulevard to Fowler because he was the only bidder.
Kaye argues that the district court improperly relied on information outside the complaint in dismissing his bribery allegations. The district court, after concluding Kaye had not alleged facts to support his accusations, cited to publicly available city land disposition reports which indicated that the sale of Kane Place to Kohler would result in a better investment and higher tax revenue for the city, and that the higher bidder on Humboldt Boulevard had failed to follow through on the sale, leaving Fowler as the only bidder.
We find no error in the district court’s analysis for two reasons. First, Kaye’s bribery accusations were wholly unsupported by factual allegations sufficient to meet the Twombly standard. Second, the land disposition reports are publicly available city documents of which the district court permissibly took judicial notice. See Pugh v. Tribune Co., 521 F.3d 686, 691 (7th Cir.2008) (“We may take judicial notice of documents in the public record ... without converting a motion to dismiss into a motion for summary judgment”); Palay v. United States, 349 F.3d 418, 425 (7th Cir.2003).
Kaye also argues that the district court cannot now find his bribery allegations implausible when, in its first dismissal order, it found they were sufficiently pleaded. While the district court did, in fact, “presume” the bribery allegations to be properly pleaded in the first complaint, it did so in an effort to not waste time on a complaint that was clearly deficient. In its order dismissing Kaye’s amended complaint, the district court explained that “Kaye’s first complaint was so plainly lacking that the court had ample reason to dismiss it without unnecessarily expending even more time by examining fully the sufficiency of th[e] bribery claims.” Kaye *714v. D’Amato, 2008 WL 5263746, at *5 (E.D.Wis. Dec.18, 2008).
After more closely examining the bribery allegations in Kaye’s amended complaint, the district court correctly concluded that Kaye has made no factual assertions that reasonably support an inference of bribery. Without additional factual allegations — at a minimum, an allegation of some communication between Fowler and Kohler indicating an agreement to “swap” the land — Kaye has not “nudged his claims ... across the line from conceivable to plausible.” Iqbal, 129 S.Ct. at 1952 (citation omitted).
3. Fraud Claim Inadequate
Like most of Kaye’s claims, his allegation of fraud fails to meet the definition of a RICO predicate act. Kaye alleges that Defendants used e-mail to organize themselves and create a new voting method in order to elect people to the EVA Board who would otherwise not have received a majority vote. Supposedly, the new method violated the EVA bylaws, which required a simple majority vote, and Defendants announced the new method to voters minutes before the election, presumably so voters would not have time to object. These allegations do not amount to a claim under the federal wire fraud statute.
An act of wire fraud requires a showing that (1) Defendants participated in a scheme to defraud; (2) Defendants intended to defraud; and (3) Defendants used wires in furtherance of the fraudulent scheme. United States v. Radziszewski, 474 F.3d 480, 484-85 (7th Cir.2007). “A scheme to defraud requires ‘the making of a false statement or material misrepresentation, or the concealment of material fact.’ ” United States v. Sloan, 492 F.3d 884, 890 (7th Cir.2007) (quoting United States v. Stephens, 421 F.3d 503, 507 (7th Cir.2005)).
The district court noted that Kaye failed to allege any misrepresentation, omission, or half-truth, and alleged only one communication — an e-mail that was not directed toward any of the victims of the alleged scheme, nor alleged to be dishonest. Although a wire communication need not itself contain a misrepresentation, Schmuck v. United States, 489 U.S. 705, 712-15, 109 S.Ct. 1443, 103 L.Ed.2d 734 (1989), it must be “incidental to an essential part of the scheme.” Pereira v. United States, 347 U.S. 1, 8, 74 S.Ct. 358, 98 L.Ed. 435 (1954). The district court found, and we agree, that Kaye has not alleged a situation in which anyone was misled or fraudulently induced to engage in activity to their detriment.
Although Kaye’s allegations, if true, may amount to questionable conduct on the part of Defendants, “[n]ot all conduct that strikes a court as sharp dealing or unethical conduct is a ‘scheme or artifice to defraud’ ” as those terms are used in the mail and wire fraud statutes. Reynolds v. East Dyer Dev., 882 F.2d 1249, 1252 (7th Cir.1989) (holding that seller’s failure to disclose known soil conditions was not a scheme to defraud where seller did not affirmatively lie to buyer). Kaye’s allegation of wire fraud is supported by a single e-mail sent to supporters of the new voting method, and contained no misrepresentations or false statements. This is not enough to sufficiently allege a predicate act of wire fraud. Kaye also alleges various acts of honest services fraud relating several transactions surrounding the alleged land swap. However, the allegations fail to meet Federal Rule of Civil Procedure 9(b)’s heightened pleading standard. Specifically, Kaye failed to allege facts including who, what, when, where, and how, for each of his honest services fraud allegations. See DiLeo v. Ernst & Young, 901 F.2d 624, 627 (7th Cir.1990) (allegations of fraud require pleading who, what, when, where, and how); Slaney, 244 F.3d at 597 *715(RICO plaintiff must describe acts of fraud with specificity and state the time, place, and content of the false representations, the method by which the representations were communicated, and the identities of the parties to the representations).
Of the numerous predicate acts alleged by Kaye, the district court concluded that only two acts of extortion were sufficiently pleaded. As discussed previously, the extortion claim involving the police officers was specious, and without it Kaye cannot establish the “pattern of racketeering activity” required by RICO. See H.J., 492 U.S. at 237, 109 S.Ct. 2893 (a pattern of racketeering requires a minimum of two predicate acts). However, because the deficiencies in Kaye’s RICO claim only become clearer as we engage in further analysis, we will continue under the district court’s assumption that two predicate acts were adequately pleaded.
D. Pattern of Racketeering Activity
In addition to requiring at least two predicate acts, a pattern of racketeering requires a plaintiff show “the racketeering predicates are related, and that they amount to or pose a threat of continued criminal activity.” H.J., 492 U.S. at 239, 109 S.Ct. 2893; Gamboa, 457 F.3d at 705-06. We agree that the two predicate acts the district court found sufficient could be considered related in the sense that they shared the common objectives of influencing decisions with respect to city-owned land, and keeping Kaye and others from protesting D’Amato’s involvement in those matters. However, Kaye has not met the additional requirement of continuity.
In addition to showing that acts are related, Kaye must demonstrate “that they amount to or pose a threat of continued criminal activity.” H.J., 492 U.S. at 239, 109 S.Ct. 2893 (emphasis added); Gamboa, 457 F.3d at 705-06. The continuity requirement can be a closed-ended or an open-ended concept, “referring either to a closed period of repeated conduct, or to past conduct that by its very nature projects into the future with a threat of future repetition.” H.J., 492 U.S. at 241, 109 S.Ct. 2893. Open-ended continuity is not an issue here because, as conceded by Kaye, Defendants no longer hold their public offices. The question, therefore, is whether Kaye has shown closed-ended continuity.
In order to demonstrate closed-ended continuity, Kaye must allege “a series of related predicates extending over a substantial period of time.” Id. “Predicate acts extending over a few weeks or months and threatening no future criminal conduct do not satisfy this requirement[.]” Id. (emphasis added). Similarly, while a minimum of two predicate acts are required, two acts are normally not sufficient. H.J., 492 U.S. at 236-38, 109 S.Ct. 2893; Uni*Quality, Inc. v. Infotronx, Inc., 974 F.2d 918, 922 (7th Cir.1992). “The underlying rationale is that the duration and repetition of the criminal activity carries with it an implicit threat of continued criminal activity in the future.” Midivest Grinding Co., Inc. v. Spitz, 976 F.2d 1016, 1022-23 (7th Cir.1992). Closed-ended continuity is properly alleged only by “demonstrating a closed-ended conspiracy that existed for such an extended period of time that a threat of future harm is implicit.” Spitz, 976 F.2d at 1023; Roger Whitmore’s Auto. Servs., Inc. v. Lake County, IL, 424 F.3d 659, 673 (7th Cir.2005).
In determining whether closed-ended continuity exists, we have often used the multifactor continuity test outlined in Morgan v. Bank of Waukegan, 804 F.2d 970, 975 (7th Cir.1986). These factors “include the number and variety of predicate acts and the length of time over which they were committed, the number of victims, the presence of separate schemes and the *716occurrence of the distinct injuries.” Id. at 975. While helpful, no one factor is dis-positive and we should seek to achieve the “natural and commonsense” result, consistent with Congress’ intent to eradicate long-term criminal conduct. Roger Whitmore’s Auto. Servs., 424 F.3d at 673; Vicom, Inc. v. Harbridge Merchant Servs. Inc., 20 F.3d 771, 780 (7th Cir.1994). For instance, when a complaint presents a distinct and non-recurring scheme with a built-in end point and provides no indication that Defendants have engaged or will engage in similar misconduct, the complaint does not sufficiently allege continuity even if the purported scheme takes years to unfold, involves a variety of criminal acts, and targets more than one victim. Gamboa, 457 F.3d at 708 (reversing the district court’s finding of continuity even though the Morgan factors had been met).
Kaye has not satisfied closed-ended continuity because he has only sufficiently pleaded two predicate acts, the duration between which was only about seven months. We have repeatedly found this and greater periods of time insufficient. See Midwest Grinding, 976 F.2d at 1024 (collecting cases in which periods from several months to several years were found inadequate). When we look at Kaye’s allegations in their entirely, it is obvious that there never was a substantial is no threat of future harm to Kaye, implicit or otherwise, and thus no continuity. Among the myriad of allegations in his complaint, the only identifiable harm to him personally stems from the sale of Kane Place. All of the acts alleged by Kaye were wrapped up in one general scheme to control the sale and development of specific city-owned land. Once this was accomplished, the scheme would have ended, and so his allegations do not meet RICO’s continuity requirement. See Gamboa, 457 F.3d at 708. Because he failed to show continuity the district court correctly dismissed Kaye’s complaint.
In addition, we agree with the district court that the real victim of the alleged land swap would be the City of Milwaukee, not Kaye. Kaye cannot show that he is a victim or that he suffered any injury. Anza v. Ideal Steel Supply Corp., 547 U.S. 451, 126 S.Ct. 1991, 164 L.Ed.2d 720 (2006), and James Cape & Sons Co. v. PCC Construction Co., 453 F.3d 396 (7th Cir.2006), are determinative on this point. A civil RICO plaintiff must properly allege the RICO violation was the proximate cause of his injury. James Cape, 453 F.3d at 403 (citing Anza, 547 U.S. 451, 126 S.Ct. 1991). The proper determination of proximate case is “whether the alleged violation led directly to the plaintiffs injuries.” Anza, 547 U.S. at 461, 126 S.Ct. 1991. Relying in large part on Anza, this court in James Cape found that the plaintiffs alleged loss of sales was not proximately caused by a bid-rigging scheme because a “court could never be certain whether [the plaintiff] would have won any of the contracts that were the subject of the conspiracy for any number of reasons unconnected to the asserted pattern of fraud.” James Cape, 453 F.3d at 403 (citation and quotation omitted). Just like the plaintiff in James Cape, Kaye cannot demonstrate that the city would have sold him the Kane Place property had they not decided to sell it to Kohler. This leaves the City of Milwaukee, which “is fully capable of pursuing appropriate remedies” itself. Id. at 404 fn. 6.
For the foregoing reasons we AFFIRM the decision of the district court in dismissing Kaye’s amended complaint for failure to state a claim.1
*717E. Rule 11 Sanctions
We review the district court’s imposition of Rule 11 sanctions for abuse of discretion. Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405, 110 S.Ct. 2447, 110 L.Ed.2d 359 (1990); Corley v. Rosewood Care Ctr. Inc. of Peoria, 388 F.3d 990, 1013-14 (7th Cir.2004). Rule 11 permits sanctions where a party presents the court with a pleading “that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances,” is not “warranted by existing law.” Fed.R.Civ.P. 11(b) & (c). A district court abuses its discretion only “when no reasonable person could have taken the same view it adopted.” Divane v. Krull Elec. Co., 319 F.3d 307, 314 (7th Cir.2003).
The district court twice found that Kaye failed to plead a RICO cause of action. After analyzing Kaye’s original complaint, the district court found that Kaye, as an attorney, should have known that: (1) theft is not a RICO predicate act; (2) the complaint did not allege facts that constitute extortion; (3) fraud allegations must be pleaded with particularity; (4) the alleged bribery scheme did not constitute a pattern of racketeering; and (5) a RICO enterprise is defined by its structure, duration, and organization, not by its purpose and conduct. After the district court gave Kaye the opportunity to amend, it dismissed his amended complaint for many of the same deficiencies, including his obvious inability to establish continuity. Even after generously finding that Kaye sufficiently pleaded two predicate acts, which is debatable, it concluded that the two acts amounted to isolated events that did not demonstrate continuity and therefore did not amount to a pattern of racketeering. The district court stated that it was awarding sanctions because Kaye, as an attorney, filed a RICO claim that was unsupported in fact or law. It further stated that sanctions were appropriate because Defendants incurred considerable expenses defending Kaye’s serious yet demonstrably frivolous claims.
Although Kaye’s alleges that Defendants engaged in unethical activities, it is not the kind of activity a RICO cause of action requires. Congress enacted RICO to target long-term criminal activity, not as a means of resolving routine commercial disputes. Midwest Grinding, 976 F.2d at 1019, 1022. This well-established fact should have been clear to any attorney, including Kaye, after minimal research. Given the district court’s thorough analysis of Kaye’s obviously deficient RICO claim and its reasonable explanation for awarding sanctions, we see no reason to find that the district court abused its discretion. Therefore, we AFFIRM.
. Because WOCCA employs the same legal structure as RICO, dismissal of all counts is appropriate.
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PER CURIAM.
Sherrie Williams appeals the district court’s1 adverse grant of summary judgment in this civil action. Having carefully reviewed the record, see Johnson v. Blau-kat, 453 F.3d 1108, 1112 (8th Cir.2006), we conclude that summary judgment was properly granted. Accordingly, we affirm. See 8th Cir. R. 47B.
. The Honorable Patrick J. Schiltz, United States District Judge for the District of Minne*736sota.
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PER CURIAM.
Rudy Stanko appeals from the District Court’s1 order granting defendants’ motions for summary judgment in two civil rights actions that Stanko filed while he was confined as a pretrial detainee at the Douglas County Corrections Center in Omaha, Nebraska. Having reviewed the summary judgment decision de novo, see Patel v. U.S. Bureau of Prisons, 515 F.3d 807, 812 (8th Cir.2008), and having considered all of Stanko’s arguments on appeal, we find no basis for reversal. Accordingly, we affirm. See 8th Cir. R. 47B.
. The Honorable Richard G. Kopf, United Slates District Judge for the District of Nebraska.
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PER CURIAM: *
The attorney appointed to represent Makeba Dehron Thomas has moved for leave to withdraw and has filed a brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Thomas has not filed a response. Our independent review of the record and counsel’s brief discloses no nonfrivolous issue for appeal. Accordingly, counsel’s motion for leave to withdraw is GRANTED, *580counsel is excused from further responsibilities herein, and the APPEAL IS DISMISSED. See 5th Cir. R. 42.2.
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.
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