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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Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8475902/
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PER CURIAM: *
The Attorney appointed to represent Chad Patrick 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). Patrick has not filed a response. Our independent review of the record and counsel’s brief discloses no nonfrivolous issue for appeal. Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is excused from further responsibilities herein, and the APPEAL IS DISMISSED. See 5th CiR. R. 42.2.
Pursuant to 5tii Cm. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cm. 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/8475904/
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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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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8475907/
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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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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8475909/
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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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ORDER
Mary Halsell claims that she is disabled by arthritis, shoulder problems, collage-nous colitis, and headaches. The Social Security Administration denied her claim for disability benefits at all stages, and a magistrate judge, presiding by consent, upheld the agency’s decision. Halsell appeals, asserting numerous errors by the Administrative Law Judge (“ALJ”). Although the ALJ’s reasoning is imperfect, we conclude that her decision is supported by substantial evidence.
I. Background
Halsell, a high-school graduate born in 1954, spent 12 years managing fast-food restaurants in Texas. In January 2005 she quit her job and, soon after, moved to Illinois. Halsell applied for disability benefits in March 2005, claiming that she was unable to work because of cellulitis in her throat (which appears to have been treated successfully) as well as pain in her left knee and right shoulder. The record contains no medical evidence that predates her application apart from documents regarding her treatment for cellulitis.
After Halsell applied for disability benefits, two state-agency doctors examined her. In April 2005 Dr. Raymond Leung observed that Halsell walked with a slow gait and mild limp, had a limited range of motion in her knees and shoulders, and had trouble getting up from a squat. He further concluded that Halsell was obese, weighing 267 pounds and standing 67 inches tall. But Dr. Leung also determined that Halsell could walk 50 feet unassisted, had no difficulty getting on or off the examination table, had no back spasms, and had normal arm grip and strength. In June 2005 Dr. Sandra Bilin-sky, the other state-agency doctor, examined Halsell and completed an assessment of her residual functional capacity (“RFC”). Dr. Bilinsky concluded that Halsell could stand, sit, and walk for at least 6 hours in an 8-hour workday, and that she could occasionally lift 20 pounds and frequently lift 10 pounds. Dr. Bilin-sky confirmed Dr. Leung’s observations regarding Halsell’s obesity and walking ability and also found that Halsell had a limited ability to climb stairs, balance, stoop, and reach with her arms.
In September 2005 Halsell first visited Dr. Michael Kirkpatrick, who would become her primary physician, complaining of neck and joint pain, particularly in her hands and knees. An x-ray of Halsell’s left knee showed some degenerative change including spur formation but no sign of traumatic injury. Films of her, right knee revealed osteoarthritis that was slightly more severe.
In October 2005 Dr. Kirkpatrick referred Halsell to Dr. Ronald Wheeler, an orthopedist, to address the pain in her knees and left shoulder. Dr. Wheeler determined that she needed rotator-cuff surgery to treat impingement syndrome and degenerative joint disease in her left shoulder. Following surgery in December 2005, Halsell regularly attended physical therapy for six months. At the end of that *720period, the therapist concluded that Hal-sell had achieved 75% of her goals and had a good prognosis. He recommended that Halsell continue exercising at home.
In July 2006, after her application for benefits had been pending for more than a year, Halsell complained to Dr. Kirkpatrick about pain in her lower back. He examined her and noticed tenderness and some spasticity. An MRI revealed minor degenerative changes between several vertebrae, and Dr. Kirkpatrick diagnosed Halsell with mild central-canal stenosis. In September 2006 Halsell reported that she was unable to walk because of the back pain, so Dr. Kirkpatrick completed a form that Halsell used to apply for a disability parking permit. That form states that Halsell suffers from osteoarthritic back pain which restricts her ability to walk.
Dr. Kirkpatrick has prescribed pain medications for Halsell since her first visit. For her preoperative shoulder pain, he prescribed Ultram, which Halsell reported was not strong enough. For her back pain, Dr. Kirkpatrick initially prescribed muscle relaxants, but Halsell said they did not work. By the end of the summer of 2006, Halsell had been prescribed Ultram, Gabapentin, and Amitriptyline combined with over-the-counter Tylenol and anti-in-flammatories as needed.
Since applying for benefits, Halsell has complained of two other, unrelated conditions: stomach pain and headaches. In February 2006 she told Dr. Kirkpatrick that she suffered from abdominal pain and diarrhea, so he referred her to Dr. William Birsic, a specialist who performed a colonoscopy and a biopsy. The colonos-copy was normal, but the subsequent biopsy revealed microscopic collagenous colitis. Halsell has had moderate success medicating this condition. Halsell has also expressed discomfort from tension headaches, which she brought to Dr. Kirkpatrick’s attention in January 2006. In response he recommended that she continue with the Ultram and Amitripty-line.
After Halsell’s application was denied initially, she requested a hearing, which occurred in June 2007. At the hearing she testified that she quit her job in Texas because of health reasons and then moved to Illinois because her children are here. Halsell went on to testify about the symptoms she was presently experiencing, but she did not describe how her condition had changed since she applied for benefits two years earlier. She explained that the residual effects of her left shoulder surgery and an earlier right shoulder surgery limit her arm strength and range of motion. She added that she experiences tingling in her hands and feet, pain in her back that radiates into her legs, constant dull pain in her left leg, sharp pain in her right leg, and arthritic pain in her neck. Halsell also testified that she suffers from debilitating headaches, constant abdominal pain, and frequent diarrhea.
These ailments, Halsell said, limit what she can do on a daily basis. Mostly she stays home watching TV and doing puzzle books. She explained that she cannot drive a car and has difficulty performing simple tasks like putting on her shoes, walking from the couch to the refrigerator, showering, and even holding a newspaper. Halsell testified that she cannot lift more than a gallon of water or raise her arms high enough to shampoo her hair.
At her hearing Halsell rated her pain as an 8 of 10, but acknowledged she was taking only Amitriptyline. She explained that she had stopped taking anti-inflamma-tories because they were causing blood clots and that she does not take Tylenol because it keeps her awake. Halsell did not mention taking Ultram for pain, even though Dr. Kirkpatrick’s records suggest *721that he was still prescribing it. Halsell acknowledged that she never sought surgical treatment for the pain in her knees but did not explain why she had not.
After Halsell testified the ALJ heard from a vocational expert (“VE”). The ALJ asked, hypothetically, whether Halsell could return to her past work as a fast-food manager if she can lift 10 to 20 pounds to shoulder level but not higher, can stand or walk for 6 hours in an 8-hour day, and can occasionally climb, balance, stoop, kneel, crouch, and crawl. The VE responded that Halsell could return to her job as a fast-food manager given these parameters. Additionally, the VE opined that Halsell could perform 75% of light, unskilled positions under these conditions, or she could use her food-service management skills in numerous semiskilled sedentary jobs. When the ALJ asked the VE if Halsell could work given the limitations Halsell had described in her testimony, the VE opined that she would be unable to perform any job.
The ALJ evaluated Halsell’s claim under the required five-step analysis, 20 C.F.R. §§ 404.1520, 416.920 and concluded that (1) Halsell had not worked since February 2005; (2) the osteoarthritis in her knees and spine as well as the her postoperative shoulder conditions constitute severe impairments but her colitis and headaches do not; (3) these impairments do not collectively meet or equal a listed impairment; (4) Halsell has the RFC to perform light work; and (5) based on this RFC, she is able to perform her previous job or other available jobs and thus is not disabled.
The ALJ premised her denial of benefits on an adverse credibility finding regarding “the intensity, persistence and limiting effects” of Halsell’s symptoms. The ALJ thought Halsell was exaggerating her symptoms because she was not on a significant regimen of pain medication, she had not “followed up” with her orthopedist regarding her knees and back, and she continued to participate in a “range of daily activities.” The ALJ further noted that the medical evidence failed to support her testimony regarding the severity and limiting effects of her pain. Additionally, the ALJ commented that Halsell previously lived in Texas but she “quit her job and moved to Illinois to be near her grandchildren.” Finally, the ALJ commented that no doctor had given an opinion that Halsell was disabled and the parking-placard application was irrelevant.
II. Analysis
On appeal Halsell argues that the ALJ committed four errors: (1) she based her adverse credibility finding on assumptions and incorrect interpretations of the evidence; (2) she failed to consider Halsell’s obesity; (3) she concluded without sufficient evidentiary support that Halsell could return to her prior work; and (4) she gave the VE an improper hypothetical and then relied on his resulting opinion that Halsell could do light or sedentary work.
The Appeals Council declined to review the ALJ’s decision, so that decision is the final determination of the Commissioner of Social Security. See Getch v. Astrue, 539 F.3d 473, 480 (7th Cir.2008). We evaluate whether the ALJ’s decision is supported by substantial evidence without deferring to the district court. 42 U.S.C. § 405(g); Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971); Moss v. Astrue, 555 F.3d 556, 560 (7th Cir.2009).
Halsell’s first argument concerns the adverse credibility finding. The ALJ concluded that although Halsell’s impairments could produce the symptoms she described, her testimony about the “intensity, persistence, and limiting effects of these symptoms” was not credible. That credibility finding is entitled to “considerable deference,” Prochaska v. Barnhart, *722454 F.3d 731, 738 (7th Cir.2006), if a “logical bridge” connects it to the evidence, Terry v. Astrue, 580 F.3d 471, 475 (7th Cir.2009); Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir.2000). Halsell offers several valid criticisms of the credibility finding, but we conclude that overall it is supported by substantial evidence.
First, Halsell says that the ALJ improperly drew a negative inference from the fact that she did not seek treatment from her orthopedist regarding her knees or back and that she was not taking pain medication for her headaches. Halsell’s point has some traction because it is not apparent that the treatment the ALJ expected Halsell to pursue would have resolved her problems and “failure to pursue ineffective treatment ] ... cannot be a sound basis for the ALJ’s adverse credibility finding.” Ribaudo v. Barnhart, 458 F.3d 580, 585 (7th Cir.2006). The ALJ should not have “played doctor” and reached independent medical conclusions about what Halsell should have done to treat these impairments. See Blakes ex rel. Wolfe v. Barnhart, 331 F.3d 565, 570 (7th Cir.2003); Schmidt v. Sullivan, 914 F.2d 117, 118 (7th Cir.1990). Moreover, the ALJ’s related conclusion that Halsell was not on a pain-medication regimen is simply incorrect because the record shows that Halsell was prescribed medication for long-term pain management and was taking Amitriptyline, which the ALJ assumed was exclusively a sleep aid but failed to recognize is commonly used for pain management.
Halsell is also correct to fault the ALJ for misstating that “she quit her job and moved to Illinois to be near her family.” Though this statement may be innocuous in the abstract, it does conflate Halsell’s testimony that she moved to be near her family and her testimony that she quit her job because of health reasons. Given this statement’s placement in the ALJ’s credibility determination, it is not surprising that Halsell believes the ALJ relied on this mischaracterization to question her motivation for quitting her job.
Finally, Halsell rightly criticizes the ALJ for concluding that she participates in a range of daily activities. The ALJ did not identify those activities, and the conclusion contradicts much of Halsell’s testimony. Although the ALJ may be correct that Halsell engages in a range of activities, she should have explained why she was disregarding Halsell’s testimony to the contrary. See Zurawski v. Halter, 245 F.3d 881, 887 (7th Cir.2001).
But Halsell’s other objections to the credibility finding are without merit. She argues that the ALJ should have given weight to her successful application for a disability parking placard, but the placard proves nothing unless the disability standard is the same. See, e.g., Bass v. McMahon, 499 F.3d 506, 511 (6th Cir.2007) (“[Ojrdering of a disability placard adds nothing to a finding of disability here because there is no evidence that the two have substantially similar requirements....”). Similarly, Halsell assumes that the credibility finding was affected by an incorrect determination that her colonoscopy was normal. Even though the colonoscopy itself was normal, Halsell explains, the biopsy that immediately followed revealed microscopic collagenous colitis. That may be so, but as far as Halsell’s medical records show, her colonitis has been effectively managed and was not a contributing factor to her claim of disability.
On balance, the flaws in the ALJ’s reasoning are not enough to undermine the ALJ’s decision that Halsell was exaggerating her symptoms. Not all of the ALJ’s reasons must be valid as long as enough of them are, see, e.g. Simila v. Astrue, 573 F.3d 503, 517 (7th Cir.2009); Shramek v. *723Apfel, 226 F.3d 809, 811 (7th Cir.2000), and here the ALJ cited other sound reasons for disbelieving Halsell. First, the ALJ properly relied on Dr. Bilinsky’s uncontradicted report addressing Halsell’s standing and lifting abilities. Second, the ALJ gave weight to the physical therapist’s estimate that Halsell had met 75% of her goals and had a good prognosis after her shoulder surgery. Third, the ALJ was permitted to assume that Halsell, who has always been represented by counsel, was “making the strongest case for benefits,” so it was not improper for her to draw a negative inference from the fact that no treating physician opined that Halsell is disabled. Glenn v. Sec’y of Health & Human Servs., 814 F.2d 387, 391 (7th Cir.1987). Finally, the ALJ’s conclusion that the objective medical evidence does not support the severity of symptoms Halsell describes is well supported. The clinical findings referenced by the ALJ show that the narrowing of Halsell’s spinal column is characterized as mild, the arthritis in her knees is minimal, and her colitis appears to be treated with over-the-counter medication. Thus, although the ALJ’s reasoning is imperfect, there is substantial evidence supporting her decision to discount Halsell’s credibility.
In her second argument on appeal, Halsell contends that the ALJ erred by failing to consider her obesity in combination with her other impairments. The reports of the state-agency physicians put the ALJ on notice that Halsell’s obesity could be a relevant factor, and thus the ALJ was required to evaluate how her weight impacted her impairments even if obesity was not itself a severe impairment and even if Halsell did not make explicit arguments on the subject. Prochaska, 454 F.3d at 736-37; Clifford, 227 F.3d at 873. Halsell waived this argument by failing to raise it in the district court. See Skarbek v. Barnhart, 390 F.3d 500, 505 (7th Cir.2004); Shramek, 226 F.3d at 811. Even if the argument had been preserved, the ALJ’s failure to explicitly consider Hal-sell’s obesity would not change the result. The ALJ implicitly considered Halsell’s weight when she relied on Dr. Bilinsky’s report, which expressly mentions Halsell’s obesity, and this implicit consideration is sufficient. See Prochaska, 454 F.3d at 736-37; Skarbek, 390 F.3d at 504.
Halsell’s third argument on appeal is that the ALJ erroneously concluded at step four that she had the RFC to return to her past relevant work. Halsell asserts that although the position of fast-food manager is designated as light work, see Dictionary of Occupational Titles 185.137-010 (4th ed.1991), her particular job constituted at least medium work. But Halsell misunderstands step four. Even if she could not perform her exact former job, she is not disabled if she “can perform the ... job duties as generally required by employers throughout the economy.” S.S.R. 82-61 (Cum. Ed.1982); see also Smith v. Barnhart, 388 F.3d 251, 253 (7th Cir.2004); Brewer v. Chater, 103 F.3d 1384, 1393 (7th Cir.1997). Thus, even if Halsell could not return to her old job, that does not mean she lacks the RFC to do light work, which includes a fast-food manager job.
Finally, Halsell argues that the ALJ posed an improper hypothetical to the VE and then relied on his conclusions to find that she could do both light and sedentary work. In particular Halsell faults the ALJ’s hypothetical because it omitted her inability to walk more than 200 feet and her collagenous colitis. But the ALJ needed to include only the limitations that were supported by medical evidence in the record. See Simila, 573 F.3d at 520; Steele v. Barnhart, 290 F.3d 936, 942 (7th Cir.2002). Apart from the parking-placard application, which the ALJ properly dis*724credited, there is no evidence that Halsell could not walk 200 feet. Furthermore, the evidence suggests that Halsell could regulate the symptoms of her colitis. Because the medical evidence does not support Hal-sell’s contentions in these two areas, the ALJ was entitled to disregard them as being not credible. See Simila, 573 F.3d at 521. Moreover, the ALJ gave not one, but two hypotheticals to the VE, and in the second hypothetical, the ALJ asked the VE to take into account Halsell’s testimony and her medical history. The record indicates that the VE learned of the additional limitations by listening to Halsell’s testimony and accounted for them in his response to this second question, where he concluded that under the circumstances Halsell described in her testimony, she would not be able to do even light or sedentary work. Halsell’s real problem is not with the hypothetical questions posed to the VE but with the ALJ’s decision to discredit her testimony. Because that determination is supported by substantial evidence, the ALJ did not err in her method of questioning the VE, and this argument, along with Halsell’s other contentions, fails.
AFFIRMED.
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ORDER
David Franklin pleaded guilty to possessing cocaine base with intent to distribute. See 21 U.S.C. § 841(a)(1). The district court sentenced him to 295 months’ imprisonment, and we affirmed the judgment on direct appeal. United States v. Franklin, 257 Fed.Appx. 997 (7th Cir.*7252007). Franklin then filed this action under 28 U.S.C. § 2255, claiming, as relevant here, that he was denied effective assistance of counsel. According to Franklin, counsel coerced him into pleading guilty by boasting that his “contacts within the legal system” would ensure a light sentence. And, Franklin alleged, counsel submitted a “canned” brief on direct appeal that was “plagiarized from the internet.” The district court denied relief but issued a certificate of appealability.
Franklin asserts on appeal that he would have insisted on proceeding to trial had counsel not deceived him into accepting a plea agreement. But during the plea colloquy, Franklin swore to the district court that, aside from the terms embodied in the plea agreement, he had been promised nothing to cajole his admission of guilt. If counsel’s supposed pledge to deliver a light sentence had been the “decisive factor” in Franklin’s decision to plead guilty, then the plea colloquy “would have been the opportune time to raise the issue.” See Wyatt v. United States, 574 F.3d 455, 459 n. 2 (7th Cir.2009). Instead Franklin said nothing about other promises, and the district court credited his sworn statement in open court that there were no other promises. So “the game is over.” See United States v. Stewart, 198 F.3d 984, 987 (7th Cir.1999).
Franklin also asserts that his direct appeal was prejudiced by counsel’s submission of a “canned” appellate brief “plagiarized from the internet.” But this allegation alone, even if proven, does not establish that counsel’s performance was constitutionally defective. Franklin’s § 2255 motion does not identify any issue that counsel failed to raise on appeal or any argument that was raised but poorly briefed. See Suggs v. United States, 513 F.3d 675, 678 (7th Cir.2008).
The allegations Franklin presented to the district court do not entitle him to relief, so the district court was not required to conduct an evidentiary hearing. See Menzer v. United States, 200 F.3d 1000, 1005-06 (7th Cir.2000).
Affirmed.
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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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MEMORANDUM **
Fernando Romero Pineda, a native and citizen of Guatemala, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration judge’s decision denying his application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence findings of fact, and we review de novo legal determinations. Wakkary v. Holder, 558 F.3d 1049, 1056 (9th Cir.2009). We deny the petition for review.
Substantial evidence supports the BIA’s conclusion that the harm Pineda experienced in Guatemala was not severe enough to warrant a grant of humanitarian asylum. See Kumar v. INS, 204 F.3d 931, 934-35 (9th Cir.2000). In his opening brief, Pineda fails to challenge the BIA’s findings that even assuming he suffered *741past persecution, he no longer has a well-founded fear of persecution in light of changed country conditions and that he has not otherwise established a well-founded fear. See Martinez-Serrano v. INS, 94 F.3d 1256, 1259-60 (9th Cir.1996) (issues not specifically raised and argued in a party’s opening brief are waived). Accordingly, we deny the petition as to Pineda’s asylum claim.
We also deny the petition for review as to Pineda’s withholding of removal claim in light of his failure to challenge the BIA’s dispositive finding that because he failed to establish a well-founded fear, he necessarily failed to meet the more stringent burden of proof for withholding of removal. See id,.; see also Sowe v. Mukasey, 538 F.3d 1281, 1288 (9th Cir.2008). In light of this conclusion, we need not address Pine-da’s challenge to the agency’s alternative denial of withholding of removal based upon the criminal bar.
Substantial evidence supports the agency’s denial of CAT relief because Pineda failed to demonstrate it was more likely than not he would face torture upon return to Guatemala. See Sowe, 538 F.3d at 1288-89 (denial of CAT relief supported by substantial evidence in light of changed country conditions).
PETITION FOR REVIEW DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
The ALJ did not give specific and legitimate reasons for discrediting the report of Dr. Watkins, the treating physician, and therefore erred in giving greater weight to the opinions of the non-examining physicians, Drs. Campbell and Enos, than to Dr. Watkins’s report. See Nguyen v. Chater, 100 F.3d 1462, 1466 (9th Cir.1996). Contrary to the ALJ’s finding, there is no material inconsistency between Dr. Watkins’s Medical Source Statement and the narrative portion of his report. Moreover, the fact that Dr. Watkins prepared his report before April 2004 (when Williams resumed her mental health treatment) does not constitute a specific and legitimate reason for giving less weight to Dr. Watkins’s opinion. Dr. Campbell also prepared his report before April 2004, and the opinions of Drs. Campbell and Enos cite only to Dr. Watkins’s report. Finally, the ALJ’s general agreement with the opinions of Drs. Campbell and Enos, and the ALJ’s unsupported assertion that those opinions were “supported by the great weight of the evidence,” do not constitute specific and legitimate reasons for discrediting Dr. Watkins’s testimony. See Regennitter v. Comm’r of Soc. Sec. Admin166 F.3d 1294, 1299 (9th Cir.1999).
Even if the ALJ had properly credited Dr. Watkins’s report, the evidence in the record does not resolve the ultimate question whether Williams is disabled. In considering the hypotheticals provided by the ALJ, the VE provided conflicting testimony as to whether Dr. Watkins’s report required a finding of disability. Accordingly, we remand for a redetermination of disability at step five of the Commissioner’s evaluation process. We do not address the question whether the ALJ erred in determining Williams was only partially credible. On remand, the ALJ is free to reconsider her decision with regard to *743Williams’s credibility. See Connett v. Barnhart, 340 F.3d 871, 876 (9th Cir.2003).
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 **
James Whittenberg, a California state prisoner, appeals pro se from the district court’s summary judgment for defendant Roll in his 42 U.S.C. § 1983 action alleging that Roll retaliated and discriminated against him by reclassifying his prison job from a paid to an unpaid position. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo, Sorrels v. McKee, 290 F.3d 965, 969 (9th Cir.2002), and we affirm.
The district court properly granted summary judgment because Whittenberg failed to raise a genuine issue of material fact as to whether Roll took an adverse retaliatory action against him, see Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir.2005) (holding that a prisoner alleging retaliation must show, inter alia, that a state actor took adverse action against him because of the prisoner’s protected conduct), or had discriminatory intent, see Keyser v. Sacramento City Unified Sch. Dist., 265 F.3d 741, 754 (9th Cir.2001) (“To avoid summary judgment [on an Equal Protection claim, a plaintiff] must produce evidence sufficient to permit a reasonable trier of fact to find by a preponderance of the evidence that the decision was racially motivated.”).
The district court did not abuse its discretion in denying Whittenberg’s motions for appointment of counsel. See Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir.1990) (finding no abuse of discretion where the “exceptional circumstances” warranting appointment of counsel were not present).
Whittenberg’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 **
Leandro Roger Hernandez, a California state prisoner, appeals the district court’s denial of his 28 U.S.C. § 2254 habeas corpus petition. We have jurisdiction under 28 U.S.C. § 2253(a). We affirm.
This court reviews de novo the district court decision to deny a petition for habeas corpus. Lambert v. Blodgett, 393 F.3d 943, 964 (9th Cir.2004). The district court properly denied this claim because the admission of gang evidence did not have a substantial and injurious effect on the jury’s verdict. Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993); see Fry v. Pliler, 551 U.S. 112, 121-22, 127 S.Ct. 2321, 168 L.Ed.2d 16 (2007). Rather, the jury could draw the permissible inference that Hernandez was more likely the owner of the 28.8-gram rock of methamphetamine because of gang indicia present with the methamphetamine and on Hernandez’s person. See Boyde v. Brown, 404 F.3d 1159, 1172 (9th Cir.2005) (citing Jammal v. Van de Kamp, 926 F.2d 918, 920 (9th Cir.1991)). Moreover, the trial court gave a proper limiting instruc*746tion to the jury, which we assume the jury properly followed and which mitigated the likelihood that the jury would draw an impermissible inference from the gang evidence. See Weeks v. Angelone, 528 U.S. 225, 234, 120 S.Ct. 727, 145 L.Ed.2d 727 (2000).
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 **
Fernando Romero Pineda, a native and citizen of Guatemala, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration judge’s decision denying his application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence findings of fact, and we review de novo legal determinations. Wakkary v. Holder, 558 F.3d 1049, 1056 (9th Cir.2009). We deny the petition for review.
Substantial evidence supports the BIA’s conclusion that the harm Pineda experienced in Guatemala was not severe enough to warrant a grant of humanitarian asylum. See Kumar v. INS, 204 F.3d 931, 934-35 (9th Cir.2000). In his opening brief, Pineda fails to challenge the BIA’s findings that even assuming he suffered *741past persecution, he no longer has a well-founded fear of persecution in light of changed country conditions and that he has not otherwise established a well-founded fear. See Martinez-Serrano v. INS, 94 F.3d 1256, 1259-60 (9th Cir.1996) (issues not specifically raised and argued in a party’s opening brief are waived). Accordingly, we deny the petition as to Pineda’s asylum claim.
We also deny the petition for review as to Pineda’s withholding of removal claim in light of his failure to challenge the BIA’s dispositive finding that because he failed to establish a well-founded fear, he necessarily failed to meet the more stringent burden of proof for withholding of removal. See id,.; see also Sowe v. Mukasey, 538 F.3d 1281, 1288 (9th Cir.2008). In light of this conclusion, we need not address Pine-da’s challenge to the agency’s alternative denial of withholding of removal based upon the criminal bar.
Substantial evidence supports the agency’s denial of CAT relief because Pineda failed to demonstrate it was more likely than not he would face torture upon return to Guatemala. See Sowe, 538 F.3d at 1288-89 (denial of CAT relief supported by substantial evidence in light of changed country conditions).
PETITION FOR REVIEW DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
The ALJ did not give specific and legitimate reasons for discrediting the report of Dr. Watkins, the treating physician, and therefore erred in giving greater weight to the opinions of the non-examining physicians, Drs. Campbell and Enos, than to Dr. Watkins’s report. See Nguyen v. Chater, 100 F.3d 1462, 1466 (9th Cir.1996). Contrary to the ALJ’s finding, there is no material inconsistency between Dr. Watkins’s Medical Source Statement and the narrative portion of his report. Moreover, the fact that Dr. Watkins prepared his report before April 2004 (when Williams resumed her mental health treatment) does not constitute a specific and legitimate reason for giving less weight to Dr. Watkins’s opinion. Dr. Campbell also prepared his report before April 2004, and the opinions of Drs. Campbell and Enos cite only to Dr. Watkins’s report. Finally, the ALJ’s general agreement with the opinions of Drs. Campbell and Enos, and the ALJ’s unsupported assertion that those opinions were “supported by the great weight of the evidence,” do not constitute specific and legitimate reasons for discrediting Dr. Watkins’s testimony. See Regennitter v. Comm’r of Soc. Sec. Admin166 F.3d 1294, 1299 (9th Cir.1999).
Even if the ALJ had properly credited Dr. Watkins’s report, the evidence in the record does not resolve the ultimate question whether Williams is disabled. In considering the hypotheticals provided by the ALJ, the VE provided conflicting testimony as to whether Dr. Watkins’s report required a finding of disability. Accordingly, we remand for a redetermination of disability at step five of the Commissioner’s evaluation process. We do not address the question whether the ALJ erred in determining Williams was only partially credible. On remand, the ALJ is free to reconsider her decision with regard to *743Williams’s credibility. See Connett v. Barnhart, 340 F.3d 871, 876 (9th Cir.2003).
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 **
James Whittenberg, a California state prisoner, appeals pro se from the district court’s summary judgment for defendant Roll in his 42 U.S.C. § 1983 action alleging that Roll retaliated and discriminated against him by reclassifying his prison job from a paid to an unpaid position. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo, Sorrels v. McKee, 290 F.3d 965, 969 (9th Cir.2002), and we affirm.
The district court properly granted summary judgment because Whittenberg failed to raise a genuine issue of material fact as to whether Roll took an adverse retaliatory action against him, see Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir.2005) (holding that a prisoner alleging retaliation must show, inter alia, that a state actor took adverse action against him because of the prisoner’s protected conduct), or had discriminatory intent, see Keyser v. Sacramento City Unified Sch. Dist., 265 F.3d 741, 754 (9th Cir.2001) (“To avoid summary judgment [on an Equal Protection claim, a plaintiff] must produce evidence sufficient to permit a reasonable trier of fact to find by a preponderance of the evidence that the decision was racially motivated.”).
The district court did not abuse its discretion in denying Whittenberg’s motions for appointment of counsel. See Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir.1990) (finding no abuse of discretion where the “exceptional circumstances” warranting appointment of counsel were not present).
Whittenberg’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 **
Leandro Roger Hernandez, a California state prisoner, appeals the district court’s denial of his 28 U.S.C. § 2254 habeas corpus petition. We have jurisdiction under 28 U.S.C. § 2253(a). We affirm.
This court reviews de novo the district court decision to deny a petition for habeas corpus. Lambert v. Blodgett, 393 F.3d 943, 964 (9th Cir.2004). The district court properly denied this claim because the admission of gang evidence did not have a substantial and injurious effect on the jury’s verdict. Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993); see Fry v. Pliler, 551 U.S. 112, 121-22, 127 S.Ct. 2321, 168 L.Ed.2d 16 (2007). Rather, the jury could draw the permissible inference that Hernandez was more likely the owner of the 28.8-gram rock of methamphetamine because of gang indicia present with the methamphetamine and on Hernandez’s person. See Boyde v. Brown, 404 F.3d 1159, 1172 (9th Cir.2005) (citing Jammal v. Van de Kamp, 926 F.2d 918, 920 (9th Cir.1991)). Moreover, the trial court gave a proper limiting instruc*746tion to the jury, which we assume the jury properly followed and which mitigated the likelihood that the jury would draw an impermissible inference from the gang evidence. See Weeks v. Angelone, 528 U.S. 225, 234, 120 S.Ct. 727, 145 L.Ed.2d 727 (2000).
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 **
Victor Manuel Abarca appeals from the 70-month sentence imposed following his guilty-plea conviction for attempted entry after deportation, in violation of 8 U.S.C. § 1326(a), and false claim to United States citizenship, in violation of 18 U.S.C. § 911. We have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm, but remand to correct the judgment.
*747Abarca contends that the district court erred by applying a sentencing enhancement pursuant to U.S.S.G. § 2L1.2(b)(l)(A)(ii) because his prior conviction for a lewd and lascivious act on a child under 14, in violation of California Penal Code § 288(a), does not categorically qualify as a crime of violence. This contention is foreclosed by United States v. Medina-Villa, 567 F.3d 507, 509 (9th Cir.2009).
Abarca also contends that his sentence, in excess of two years of custody and one year of supervised release, violates his Fifth and Sixth Amendment rights because the fact of his prior conviction was neither proven to a jury nor admitted during a guilty plea. As Abarca concedes, this contention is foreclosed. See United States v. Covian-Sandoval, 462 F.3d 1090, 1096-97 (9th Cir.2006).
We remand the case to the district court with instructions that it delete from the judgment the reference to 8 U.S.C. § 1326(b). See United States v. Rivera-Sanchez, 222 F.3d 1057, 1062 (9th Cir.2000); see also United States v. Herrera-Bianco, 232 F.3d 715, 719 (9th Cir.2000) (remanding sua sponte to delete the reference to § 1326(b)(2)).
AFFIRMED; REMANDED to correct the judgment.
This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3.
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MEMORANDUM **
Humberto Moran-Torres appeals from his guilty-plea conviction and 17-month, two-week sentence for illegal reentry after deportation, in violation of 8 U.S.C. § 1326(a). Pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), Moran-Torres’ 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 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 direct 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 9 th Cir. R. 36-3.
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MEMORANDUM *
Samson Ili has two causes of action at issue on appeal: negligence under the Jones Act, 46 U.S.C. § 30104, and unseaworthiness under maritime common law, Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 547-50, 80 S.Ct. 926, 4 L.Ed.2d 941 (1960). There are triable issues of material facts as to whether requiring a 16-hour work day, seven days a week, for months at a time, is negligent or creates an unsea-worthy condition; and whether such negligence or unseaworthiness caused Ili to fall when the ship rolled during the last hour of his 16-hour shift. The district court granted American Seafoods’ motion for summary judgment on these claims. We reverse and remand.
Ili’s Jones Act claim has four elements: (1) the employer’s duty to provide a safe work environment to its seaman employee; (2) breach of that duty; (3) the employer’s awareness of the unsafe condition; and (4) a causal link, however slight, between the breach and the seaman’s injury. Ribitzki v. Canmar Reading & Bates, Ltd., 111 F.3d 658, 662-64 (9th Cir.1997). There is no dispute that Ili is a seaman and that American Seafoods owes him a *809duty to provide a safe work environment. It is also undisputed that American Sea-foods was aware that it required 16-hour shifts, with no days off, for months at a time, on Ili’s boat, the F/T American Triumph. The disputed issues are whether the shift length created an unsafe work environment and whether the long shift was a cause, however slight, of Ili’s injury.
In his opposition to summary judgment, Ili pointed to the deposition of American Seafoods employee Alan Davis. Davis stated that other boats use 12-hour and 14-hour shifts and that the company was experimenting with shorter shifts to see if those shifts are better for the seamen. Davis also stated that the 16-hour shifts were shocking to him when he first entered the industry but that he grew to accept them as industry standard. Even if 16-hour shift is industry standard, that does not establish a lack of negligence as a matter of law. See The T.J. Hooper, 60 F.2d 737, 740 (2d Cir.1932) (L. Hand, J.). A reasonable jury could conclude that requiring Ili to work a 16-hour shift was a breach of American Seafoods’ duty to provide a safe work environment. Pointing to Davis’s deposition testimony is sufficient to survive summary judgment.
Ili established sufficient causation to survive summary judgment on the Jones Act claim as well. The standard for causation in Jones Act claims is very low, and requires only that the negligence be a cause, however slight, of the injury. Rogers v. Missouri Pacific Railway Co., 352 U.S. 500, 506, 77 S.Ct. 443, 1 L.Ed.2d 493 (1957). Ili fell during the final hour of his 16-hour shift. He had previously complained to American Seafoods that his shift was too long and caused him to be exhausted. His job involved lifting and flipping 70-pound trays of frozen fish. At the time of his injury, the boat rolled and Ili tried to shift his weight when his legs gave out under him. This is sufficient to establish a genuine issue of material fact whether the length of his shift played any role, however slight, in causing his fall and his subsequent injury. This district court erred in granting summary judgment on the Jones Act claim.
Ili’s unseaworthiness claim has four elements: (1) seaman status triggering the warranty of seaworthiness; (2) an injury arising from the condition of the ship or its crew; (3) the unseaworthiness of that condition; and (4) proximate causation between the unseaworthy condition and the injury. Ribitzki 111 F.3d at 664. Again, it is undisputed that Ili is a seaman and thus entitled to a warranty of seaworthiness. The disputed issues are whether the length of Ili’s shift is an unseaworthy condition and whether the shift length proximately caused Ili’s injury.
Lack of adequate crew is a basis for unseaworthiness. Id.; American President Lines, Ltd. v. Welch, 377 F.2d 501, 504 (9th Cir.1967). Requiring a ship’s crew to work 16 hours a day, every day, for months on end can indicate that the ship is not adequately manned with crew to perform its duties in a seaworthy manner. Whether the length of shift and size of the crew are unseaworthy is decided by the trier of fact. E.g., Pashby v. Universal Dredging Corp., 608 F.2d 1312, 1313-14 (9th Cir.1979) (per curiam). The trier of fact in this case is a jury because Ili invoked his right to a jury trial under the Jones Act. See Fitzgerald v. U.S. Lines, Co., 374 U.S. 16, 20-21, 83 S.Ct. 1646, 10 L.Ed.2d 720 (1963).
Unseaworthiness requires a higher degree of causation than does a Jones Act negligence claim. See Ribitzki, 111 F.3d at 664. Whether the alleged unseaworthiness of requiring the crew to work 16-hour shifts every day was a substantial factor in causing Ili’s fall is a question for the jury. The same evidence that supports Ili’s Jones Act claim also supports his unsea*810worthiness claim. The district court erred in granting summary judgment on the unseaworthiness claim.
Because the Jones Act and unseaworthiness claims could be based on a combination of ingredients, and further analysis and factual development by counsel may put the facts in a different light, we reverse the summary judgment in full, rather than parsing it and affirming in parts.
The district court did not abuse its discretion when it rejected Ili’s request to extend the time to file expert reports. The motion to extend time was filed in September 2008, but the deadline for filing expert reports was in June 2008. However, given that we remand for further proceedings, the district court may find it appropriate to allow Ili to file his expert reports and for the parties to perform any additional discovery necessary to respond to those reports.
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 **
In these consolidated petitions for review, Jesus Zuniga-Flores, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration judge’s order finding that he knowingly participated in alien smug*829gling in violation of 8 U.S.C. § 1182 (a) (6)(E) (i), as well as an order denying his motion to reconsider. Our jurisdiction is governed by 8 U.S.C. § 1252. We review de novo questions of law and due process claims, for abuse of discretion the denial of a motion to reconsider, and for substantial evidence the agency’s factual findings. Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir.2005). We deny in part and dismiss in part the petition for review in No. 06-72309, and deny the petition for review in No. 06-73639.
Zuniga-Flores’ due process rights were not violated by the admission of his Form 1-213 (Record of Deportable/Inadmissible Alien) because the form was probative, and its admission was not fundamentally unfair. See Espinoza v. INS, 45 F.3d 308, 310-11 (9th Cir.1995) (noting that “[t]he sole test for admission of evidence [in a deportation proceeding] is whether the evidence is probative and its admission is fundamentally fair,” and rejecting argument that a Form 1-213 is inadmissible as hearsay). Moreover, the IJ properly denied Zuniga-Flores’ request to cross-examine the preparer of his Form 1-213, because Zuniga-Flores did not produce probative evidence that cast doubt on the document’s reliability. Id.
According to the Form 1-213, Zuniga-Flores drove the car to the border and acknowledged to border agents that he knew the alien passenger was undocumented. Zuniga-Flores therefore “provided some form of affirmative assistance to the illegally entering alien.” See Altami-rano v. Gonzales, 427 F.3d 586, 592 (9th Cir.2005).
We lack jurisdiction to review the agency’s denial of cancellation of removal as a matter of discretion. See Gomez-Lopez v. Ashcroft, 393 F.3d 882, 884 (9th Cir.2005) (noting 8 U.S.C. § 1252(a)(2)(B) precludes judicial review of discretionary decisions denying cancellation of removal).
The BIA was within its discretion in denying Zuniga-Flores’ motion to reconsider because the motion failed to identify any error of fact or law in the BIA’s prior decision. See 8 C.F.R. § 1003.2(b)(1); Socop-Gonzalez v. INS, 272 F.3d 1176, 1180 n. 2 (9th Cir.2001) (en banc).
Zuniga-Flores’ remaining contentions are unpersuasive.
IN 06-72309, PETITION FOR REVIEW DENIED in part; DISMISSED in part.
IN 06-73639, PETITION FOR REVIEW DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
In light of our concurrently filed opinion in Phillips v. Hust, 588 F.3d 652 (9th Cir.2009), this appeal is DISMISSED as moot.
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 **
Hoang Mung Thai appeals from the 108-month sentence imposed upon a remand for resentencing, following his guilty-plea conviction for possession with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B), and 18 U.S.C. § 2. Pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), Thai’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 direct 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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MEMORANDUM **
Hui Fang Zhou, a native and citizen of China, petitions for review of the Board of Immigration Appeals’ order dismissing her appeal from an immigration judge’s decision denying her motion to reopen based on ineffective assistance of counsel. We have jurisdiction pursuant to 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reopen, Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir.2005), and we deny the petition for review.
The agency did not abuse its discretion in denying Zhou’s motion to reopen because Zhou failed to comply with the requirements set forth in Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988), and the ineffective assistance is not plain on the face of the record. See Reyes v. Ashcroft, 358 F.3d 592, 597-99 (9th Cir.2004).
PETITION FOR REVIEW DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Victor Manuel Abarca appeals from the 70-month sentence imposed following his guilty-plea conviction for attempted entry after deportation, in violation of 8 U.S.C. § 1326(a), and false claim to United States citizenship, in violation of 18 U.S.C. § 911. We have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm, but remand to correct the judgment.
*747Abarca contends that the district court erred by applying a sentencing enhancement pursuant to U.S.S.G. § 2L1.2(b)(l)(A)(ii) because his prior conviction for a lewd and lascivious act on a child under 14, in violation of California Penal Code § 288(a), does not categorically qualify as a crime of violence. This contention is foreclosed by United States v. Medina-Villa, 567 F.3d 507, 509 (9th Cir.2009).
Abarca also contends that his sentence, in excess of two years of custody and one year of supervised release, violates his Fifth and Sixth Amendment rights because the fact of his prior conviction was neither proven to a jury nor admitted during a guilty plea. As Abarca concedes, this contention is foreclosed. See United States v. Covian-Sandoval, 462 F.3d 1090, 1096-97 (9th Cir.2006).
We remand the case to the district court with instructions that it delete from the judgment the reference to 8 U.S.C. § 1326(b). See United States v. Rivera-Sanchez, 222 F.3d 1057, 1062 (9th Cir.2000); see also United States v. Herrera-Bianco, 232 F.3d 715, 719 (9th Cir.2000) (remanding sua sponte to delete the reference to § 1326(b)(2)).
AFFIRMED; REMANDED to correct the judgment.
This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3.
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MEMORANDUM **
Humberto Moran-Torres appeals from his guilty-plea conviction and 17-month, two-week sentence for illegal reentry after deportation, in violation of 8 U.S.C. § 1326(a). Pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), Moran-Torres’ 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 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 direct 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 9 th Cir. R. 36-3.
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MEMORANDUM **
In light of our concurrently filed opinion in Phillips v. Hust, 588 F.3d 652 (9th Cir.2009), this appeal is DISMISSED as moot.
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 **
Hoang Mung Thai appeals from the 108-month sentence imposed upon a remand for resentencing, following his guilty-plea conviction for possession with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B), and 18 U.S.C. § 2. Pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), Thai’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 direct 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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MEMORANDUM **
Michael D.J. Chenoweth appeals pro se from the district court’s summary judg*876ment in his employment action alleging disparate treatment, hostile work environment, constructive discharge, retaliation, and defamation under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. and the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12101 et seq. We have jurisdiction under 28 U.S.C. § 1291. We review de novo, Fair Hous. Council v. Riverside Two, 249 F.3d 1132, 1135 (9th Cir.2001), and we affirm.
The district court properly granted summary judgment on the disparate treatment claim because Chenoweth failed to raise a triable issue of material fact as to whether the defendant’s proffered nondiscriminatory, performance-based reasons for the demotion, pay reduction, and other alleged adverse employment acts were pretextual. See Warren v. City of Carlsbad, 58 F.3d 439, 442 (9th Cir.1995).
The district court properly granted summary judgment on the ADA claims because Chenoweth testified that he had no actual disability and failed to establish a triable issue as to whether the defendant perceived him as having a disability that substantially limited one or more major life activities. See 42 U.S.C. § 12102(1)(C), (3) (the ADA protects those with a disability and those who are regarded as having a disability).
The district court properly granted summary judgment on the hostile work environment claim because Chenoweth failed to raise a triable issue concerning whether the alleged pranks, jokes, and name-calling were “sufficiently severe or pervasive to alter the conditions of [his] employment and create an abusive work environment.” Vasquez v. County of Los Angeles, 349 F.3d 634, 642 (9th Cir.2003); see also Faragher v. City of Boca Raton, 524 U.S. 775, 787-88, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998) (stating that the working environment must be both objectively and subjectively offensive, the alleged harassing conduct must be extreme, and simple teasing, offhand comments, and isolated incidents generally will not amount to discriminatory changes in the “terms and conditions of employment”).
The district court also properly determined that because Chenoweth failed to establish a triable issue concerning hostile work environment, his constructive discharge claim necessarily failed. See Brooks v. City of San Mateo, 229 F.3d 917, 930 (9th Cir.2000) (“Where a plaintiff fails to demonstrate the severe or pervasive harassment necessary to support a hostile work environment claim, it will be impossible for [him] to meet the higher standard of constructive discharge[.]”).
Finally, the district court properly granted summary judgment on the defamation and retaliation claims because Che-noweth failed to provide more than conclu-sory allegations to support these claims. See Surrell v. Cal. Water Serv., 518 F.3d 1097, 1103 (9th Cir.2008) (“Conclusory statements without factual support are insufficient to defeat a motion for summary judgment.”).
Chenoweth’s remaining contentions are unpersuasive.
Chenoweth’s pending motions are denied.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
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MEMORANDUM **
William J. Whitsitt appeals pro se from the district court’s summary judgment for his former employer, Club Resource Group, in his action alleging, inter alia, age discrimination in violation of the Age Discrimination in Employment Act. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo the district court’s summary judgment, and for abuse of discretion the district court’s denial of a motion to withdraw or amend an admission under Rule 36 of the Federal Rules of Civil Procedure. Conlon v. United States, 474 F.3d 616, 621 (9th Cir.2007). We may affirm on any basis supported by the record. Gordon v. Virtumundo, Inc., 575 F.3d 1040, 1047 (9th Cir.2009). We affirm.
The district court did not abuse its discretion by construing Whitsitt’s opposition to the motion for summary judgment as a motion to withdraw admissions under Rule 36, and denying the motion, because withdrawal would have been prejudicial to Club Resources Group. See Conlon, 474 F.3d at 622-24 (affirming denial of a motion to withdraw admissions because of prejudice to the party that relied on the admissions).
*879In light of Whitsitt’s admissions, the district court properly granted summary judgment because Whitsitt failed to make the prima facie showing that he was performing his job satisfactorily. See Coleman v. Quaker Oats Co., 232 F.3d 1271, 1280-81 (9th Cir.2000) (explaining that a prima facie case of age discrimination requires that plaintiff show he was (1) at least age 40; (2) performing his job satisfactorily; (3) discharged; and (4) replaced by a substantially younger employee with equal or inferior qualifications).
Whitsitt’s contention that the magistrate judge was impermissibly biased against him is unavailing because he never filed a recusal motion pursuant to 28 U.S.C. § 144. See United States v. Castro, 887 F.2d 988, 1000 (9th Cir.1989).
Because Whitsitt failed to raise his remaining claims in his opposition to summary judgment, the district court did not err in granting summary judgment on these claims. See Shakur v. Schriro, 514 F.3d 878, 892 (9th Cir.2008).
Whitsitt’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 **
Timothy Edward Hodgson appeals pro se from the district court’s judgment dismissing his action alleging that the Internal Revenue Service (“IRS”) violated 26 U.S.C. § 6304. We have jurisdiction under 28 U.S.C. § 1291. We review de novo a district court’s dismissal for lack of subject matter jurisdiction and dismissal for failure to state a claim. Shanks v. Dressel, 540 F.3d 1082, 1086 (9th Cir.2008). We affirm.
The district court properly dismissed Hodgson’s claim that the IRS violated § 6304 because Hodgson challenged only the IRS’s failure to communicate properly with his counsel, not an improper communication with him. See 26 U.S.C. § 6304 (restricting certain communications with taxpayers and prohibiting abuse and harassment of taxpayers in connection with the collection of unpaid taxes).
The district court properly dismissed Hodgson’s claim for declaratory relief because the United States is entitled to sovereign immunity from declaratory relief judgments “with respect to Federal taxes.” 28 U.S.C. § 2201; E.J. Friedman Co. v. United States, 6 F.3d 1355, 1358-59 (9th Cir.1993) (“Because the case at bar involves federal taxes, declaratory relief is unavailable, and § 2201 cannot serve as a waiver of sovereign immunity.”).
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 **
Charles James Chatman, a California state prisoner, appeals pro se from the district court’s judgment dismissing his 42 U.S.C. § 1983 action pursuant to 28 U.S.C. § 1915A on statute of limitations grounds. We have jurisdiction under 28 U.S.C. § 1291. We review de novo, Jones v. Bla-nas, 393 F.3d 918, 926 (9th Cir.2004), and we affirm.
The district court properly dismissed Chatman’s claims because they are time-barred. See id. at 927 (explaining that the applicable statute of limitations for § 1983 claims is the forum state’s statute of limitations for personal injury claims, and setting forth California’s statute of limitations); Johnson v. California, 207 F.3d 650, 654 (9th Cir.2000) (stating that, under California law, the limitations period is tolled for two years for prisoners serving less than a life sentence). Chatman’s contention that the action is not time-barred because he submitted an amended complaint raising the same claims in a prior action is unpersuasive.
Chatman’s requests for judicial notice are denied.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Michael D.J. Chenoweth appeals pro se from the district court’s summary judg*876ment in his employment action alleging disparate treatment, hostile work environment, constructive discharge, retaliation, and defamation under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. and the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12101 et seq. We have jurisdiction under 28 U.S.C. § 1291. We review de novo, Fair Hous. Council v. Riverside Two, 249 F.3d 1132, 1135 (9th Cir.2001), and we affirm.
The district court properly granted summary judgment on the disparate treatment claim because Chenoweth failed to raise a triable issue of material fact as to whether the defendant’s proffered nondiscriminatory, performance-based reasons for the demotion, pay reduction, and other alleged adverse employment acts were pretextual. See Warren v. City of Carlsbad, 58 F.3d 439, 442 (9th Cir.1995).
The district court properly granted summary judgment on the ADA claims because Chenoweth testified that he had no actual disability and failed to establish a triable issue as to whether the defendant perceived him as having a disability that substantially limited one or more major life activities. See 42 U.S.C. § 12102(1)(C), (3) (the ADA protects those with a disability and those who are regarded as having a disability).
The district court properly granted summary judgment on the hostile work environment claim because Chenoweth failed to raise a triable issue concerning whether the alleged pranks, jokes, and name-calling were “sufficiently severe or pervasive to alter the conditions of [his] employment and create an abusive work environment.” Vasquez v. County of Los Angeles, 349 F.3d 634, 642 (9th Cir.2003); see also Faragher v. City of Boca Raton, 524 U.S. 775, 787-88, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998) (stating that the working environment must be both objectively and subjectively offensive, the alleged harassing conduct must be extreme, and simple teasing, offhand comments, and isolated incidents generally will not amount to discriminatory changes in the “terms and conditions of employment”).
The district court also properly determined that because Chenoweth failed to establish a triable issue concerning hostile work environment, his constructive discharge claim necessarily failed. See Brooks v. City of San Mateo, 229 F.3d 917, 930 (9th Cir.2000) (“Where a plaintiff fails to demonstrate the severe or pervasive harassment necessary to support a hostile work environment claim, it will be impossible for [him] to meet the higher standard of constructive discharge[.]”).
Finally, the district court properly granted summary judgment on the defamation and retaliation claims because Che-noweth failed to provide more than conclu-sory allegations to support these claims. See Surrell v. Cal. Water Serv., 518 F.3d 1097, 1103 (9th Cir.2008) (“Conclusory statements without factual support are insufficient to defeat a motion for summary judgment.”).
Chenoweth’s remaining contentions are unpersuasive.
Chenoweth’s pending motions are denied.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
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MEMORANDUM **
Johnney Ramey, a California state prisoner, appeals pro se from the district court’s judgment dismissing his 42 U.S.C. § 1983 action as barred under Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994). We have jurisdiction under 28 U.S.C. § 1291. We review de novo, Huftile v. Miccio-Fonseca, 410 F.3d 1136, 1138 (9th Cir.2005), and we affirm.
The district court properly dismissed the action because a judgment in Ramey’s favor would necessarily imply the invalidity of his conviction, and the conviction has not been invalidated. See Wilkinson v. Dotson, 544 U.S. 74, 81-82, 125 S.Ct. 1242, 161 L.Ed.2d 253 (2005).
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 **
Timothy Edward Hodgson appeals pro se from the district court’s judgment dismissing his action alleging that the Internal Revenue Service (“IRS”) violated 26 U.S.C. § 6304. We have jurisdiction under 28 U.S.C. § 1291. We review de novo a district court’s dismissal for lack of subject matter jurisdiction and dismissal for failure to state a claim. Shanks v. Dressel, 540 F.3d 1082, 1086 (9th Cir.2008). We affirm.
The district court properly dismissed Hodgson’s claim that the IRS violated § 6304 because Hodgson challenged only the IRS’s failure to communicate properly with his counsel, not an improper communication with him. See 26 U.S.C. § 6304 (restricting certain communications with taxpayers and prohibiting abuse and harassment of taxpayers in connection with the collection of unpaid taxes).
The district court properly dismissed Hodgson’s claim for declaratory relief because the United States is entitled to sovereign immunity from declaratory relief judgments “with respect to Federal taxes.” 28 U.S.C. § 2201; E.J. Friedman Co. v. United States, 6 F.3d 1355, 1358-59 (9th Cir.1993) (“Because the case at bar involves federal taxes, declaratory relief is unavailable, and § 2201 cannot serve as a waiver of sovereign immunity.”).
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 ***
Harry J. Williby appeals pro se from the district court’s summary judgment in his 42 U.S.C. § 1983 action alleging that defendants failed to respond adequately to his requests for assistance after he was attacked by a dog and later threatened by an unknown person. We have jurisdiction under 28 U.S.C. § 1291. We review de novo, Tatum v. City & County of San Francisco, 441 F.3d 1090, 1094 n. 3 (9th Cir.2006), and we affirm.
The district court properly granted summary judgment on the due process claims because Williby did not have a right under the Due Process Clause to receive government protection from the actions of private citizens. See DeShaney v. Winnebago County Dep’t of Soc. Servs., 489 U.S. *882189, 197, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989) (“As a general matter, ... a State’s failure to protect an individual against private violence simply does not constitute a violation of the Due Process Clause.”).
The district court properly granted summary judgment on the equal protection claims because Williby did not raise a triable issue as to whether he was intentionally treated differently from similarly situated persons. See Thornton v. City of St. Helens, 425 F.3d 1158, 1166-67 (9th Cir.2005).
The district court properly granted summary judgment on the state law negligence claims because Williby did not raise a triable issue as to whether defendants had a duty to respond to his requests for assistance, or whether Williby suffered any injury as a result of defendants’ inaction. See Conroy v. Regents of Univ. of Cal., 45 Cal.4th 1244, 91 Cal.Rptr.3d 532, 203 P.3d 1127, 1132 (2009) (listing essential elements of negligence claim); Zelig v. County of Los Angeles, 27 Cal.4th 1112, 119 Cal.Rptr.2d 709, 45 P.3d 1171, 1182 (2002) (“law enforcement officers, like other members of the public, generally do not have a legal duty to come to the aid of [another] person”) (internal quotation marks and citation omitted).
The district court did not abuse its discretion by denying Williby’s motion under Federal Rule of Civil Procedure 56(f) because Williby failed to explain how the additional discovery he sought would preclude summary judgment. See Tatum, 441 F.3d at 1100.
Williby’s request for judicial notice is denied. See Santa Monica Food Not Bombs v. City of Santa Monica, 450 F.3d 1022, 1025 n. 2 (9th Cir.2006) (declining to take judicial notice of documents that were not relevant to the resolution of the appeal).
Williby’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 **
California state prisoner Andres Gonzalez appeals from the district court’s judgment denying his 28 U.S.C. § 2254 habeas petition. We have jurisdiction pursuant to 28 U.S.C. § 2253, and we vacate and remand.
Gonzalez contends that his defense counsel was ineffective by failing to present the testimony of Dagoberto Cardona. We vacate the district court’s denial of the habe-as petition and remand to the district court to hold an evidentiary hearing and rule on the merits of Gonzalez’s ineffective assistance of counsel claim.1 See Scott v. Schri-*901ro, 567 F.3d 573, 584 (9th Cir.2009) (per curiam) (remanding to district court to conduct an evidentiary hearing); see also Houston v. Schomig, 533 F.3d 1076, 1083 n. 4 (9th Cir.2008) (remanding sua sponte).
VACATED; REMANDED.
This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3.
. We note that defense counsel’s performance was far from stellar. See, e.g., In re Vargas, 83 Cal.App.4th 1125, 100 Cal.Rptr.2d 265 (Ct. App.2000) (enumerating defense counsel’s performance in past cases).
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MEMORANDUM **
California prisoner Ferdinand Reynolds appeals pro se from the district court’s judgment dismissing his 42 U.S.C. § 1983 action after denying his motion for a new trial. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review for abuse of discretion a district court’s decision whether to appoint counsel. Agyeman v. Com. Corp. of Am., 390 F.3d 1101, 1102 (9th Cir.2004). We affirm.
Reynolds’s contention that the district court acted improperly in declining to appoint him counsel is unpersuasive, given that the court reached the limits of its authority in attempting to appoint counsel. See Mallard v. U.S. Dist. Ct., 490 U.S. 296, 301-05, 109 S.Ct. 1814, 104 L.Ed.2d 318 (1989) (holding that 28 U.S.C. § 1915(d) did not authorize a federal court to require an unwilling attorney to represent an indigent litigant in a civil case).
We deny the defendants’ renewed motion to dismiss this appeal for lack of jurisdiction because Reynolds’s appellate brief constituted a timely notice of appeal. See Allah v. Superior Court, 871 F.2d 887, 889 (9th Cir.1989) (“Documents that are not denominated notices of appeal will be so treated so long as they ‘clearly evince the party’s intent to appeal,’ are served on the other parties to the litigation, and are filed in the court within the time period otherwise provided by [Fed. R.App. P.] 4(a)(4).”) (citation omitted).
Reynolds’s remaining contentions are unpersuasive.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
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MEMORANDUM **
Michael A. Dawes appeals pro se from the district court’s summary judgment in his 42 U.S.C. § 1983 action alleging that Police Officer Contreras violated Dawes’s constitutional rights by ramming a van into the police car in which Dawes was seated, and by delaying medical treatment for Dawes’s injuries. We have jurisdiction under 28 U.S.C. § 1291. We review de novo, Frost v. Agnos, 152 F.3d 1124, 1128 (9th Cir.1998), and we affirm.
The district court properly granted summary judgment on Dawes’s collision claim because Dawes failed to produce evidence suggesting that Officer Contreras acted for the purpose of causing harm, see County of Sacramento v. Lewis, 523 U.S. 833, 836, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998), or acted with deliberate indifference to, or with reckless disregard for, Dawes’s rights, see Tennison v. City & County of San Francisco, 570 F.3d 1078, 1088 (9th Cir.2009).
The district court properly granted summary judgment on Dawes’s medical claim because Dawes failed to raise a triable issue as to whether the delay in receiving medical treatment amounted to a constitutional violation. See Frost, 152 F.3d at 1130 (holding that pretrial detainee did not establish that defendants were deliberately indifferent to his medical needs as to “alleged delays in administering his pain medication, in treating his broken nose, and in providing him with a replacement crutch”).
The district court did not abuse its discretion by denying Dawes’s motions for *885appointment of counsel because Dawes failed to demonstrate “exceptional circumstances” warranting appointment of counsel. Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir.1991).
Dawes’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 **
Larry Giraldes, Jr., a California state prisoner, appeals pro se from the district court’s summary judgment in his 42 U.S.C. § 1983 action alleging retaliation and med*886ical deliberate indifference in violation of the First and Eighth Amendments. We have jurisdiction under 28 U.S.C. § 1291. We review de novo, Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir.2006), and we affirm in part, vacate in part, and remand.
The district court properly granted summary judgment on Giraldes’s Eighth Amendment claims regarding his knee condition and need for pain management because Giraldes failed to raise a triable issue as to whether defendants’ chosen course of treatment was medically unacceptable under the circumstances. See To-guehi v. Chung, 391 F.3d 1051, 1058 (9th Cir.2004).
As for the remaining Eighth Amendment claims, the district court’s ruling was based on (1) defendants’ showing that Gir-aldes was provided some treatment and referred to a specialist, and (2) Giraldes’s failure to establish that he was denied treatment altogether. Although Giraldes admitted that the defendants provided some treatment, he argued that the treatment provided was medically unacceptable under the circumstances. See Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir.1996) (stating that a plaintiff can support a claim of deliberate indifference by showing that a physician’s treatment decision was motivated by something other than medical judgment). In opposition to summary judgment, Giraldes submitted medical records, a sworn declaration, and deposition testimony and contended that, as reprisal to Giraldes for filing a previous lawsuit, defendants refused to follow the course of treatment recommended by the specialist. Because the district court’s order is silent regarding the evidence submitted in opposition to summary judgment, we vacate the judgment with respect to the Eighth Amendment claims concerning Giraldes’s gastrointestinal disease and dumping syndrome, and the First Amendment retaliation claims, and remand for the district court to consider in the first instance whether that evidence raises a triable issue.
The district court did not abuse its discretion by denying Giraldes’s motions for appointment of counsel because, at that stage of proceedings, Giraldes failed to demonstrate “exceptional circumstances” warranting appointment of counsel. Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir.1991).
Accordingly, we vacate the grant of summary judgment on Giraldes’s Eighth Amendment claims related to his gastroe-sophageal disease and dumping syndrome, vacate the grant of summary judgment on the First Amendment claims, and remand for further proceedings.
The parties shall bear their own costs on appeal.
AFFIRMED in part, VACATED in part, and REMANDED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Federal prisoner Lee Andrew Cain appeals pro se from the district court’s judgment dismissing his 28 U.S.C. § 2241 petition challenging the denial of prior custody credit. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
Cain contends that he is entitled to pre-sentence custody credit for time spent in a community corrections center while on pretrial release, because the restrictive conditions at the center amounted to “official detention” within the meaning of 18 U.S.C. § 3585(b). This contention fails under Reno v. Koray, 515 U.S. 50, 65, 115 S.Ct. 2021, 132 L.Ed.2d 46 (1995) (holding that a defendant required to reside at a community treatment center while released on bail is not entitled to credit pursuant to § 3585(b)).
We decline to address claims Cain has raised for the first time on appeal. See Allen v. Ornoski, 435 F.3d 946, 960 (9th Cir.2006).
Cain’s motion to expedite this appeal is denied as moot.
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
Upon consideration of the joint motion to dismiss these appeals,
IT IS ORDERED THAT:
(1) The motion is granted.
(2) Any other pending motions are denied as moot.
(3) Each side shall bear its own costs.
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MEMORANDUM **
California prisoner Ferdinand Reynolds appeals pro se from the district court’s judgment dismissing his 42 U.S.C. § 1983 action after denying his motion for a new trial. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review for abuse of discretion a district court’s decision whether to appoint counsel. Agyeman v. Com. Corp. of Am., 390 F.3d 1101, 1102 (9th Cir.2004). We affirm.
Reynolds’s contention that the district court acted improperly in declining to appoint him counsel is unpersuasive, given that the court reached the limits of its authority in attempting to appoint counsel. See Mallard v. U.S. Dist. Ct., 490 U.S. 296, 301-05, 109 S.Ct. 1814, 104 L.Ed.2d 318 (1989) (holding that 28 U.S.C. § 1915(d) did not authorize a federal court to require an unwilling attorney to represent an indigent litigant in a civil case).
We deny the defendants’ renewed motion to dismiss this appeal for lack of jurisdiction because Reynolds’s appellate brief constituted a timely notice of appeal. See Allah v. Superior Court, 871 F.2d 887, 889 (9th Cir.1989) (“Documents that are not denominated notices of appeal will be so treated so long as they ‘clearly evince the party’s intent to appeal,’ are served on the other parties to the litigation, and are filed in the court within the time period otherwise provided by [Fed. R.App. P.] 4(a)(4).”) (citation omitted).
Reynolds’s remaining contentions are unpersuasive.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
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MEMORANDUM **
Michael A. Dawes appeals pro se from the district court’s summary judgment in his 42 U.S.C. § 1983 action alleging that Police Officer Contreras violated Dawes’s constitutional rights by ramming a van into the police car in which Dawes was seated, and by delaying medical treatment for Dawes’s injuries. We have jurisdiction under 28 U.S.C. § 1291. We review de novo, Frost v. Agnos, 152 F.3d 1124, 1128 (9th Cir.1998), and we affirm.
The district court properly granted summary judgment on Dawes’s collision claim because Dawes failed to produce evidence suggesting that Officer Contreras acted for the purpose of causing harm, see County of Sacramento v. Lewis, 523 U.S. 833, 836, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998), or acted with deliberate indifference to, or with reckless disregard for, Dawes’s rights, see Tennison v. City & County of San Francisco, 570 F.3d 1078, 1088 (9th Cir.2009).
The district court properly granted summary judgment on Dawes’s medical claim because Dawes failed to raise a triable issue as to whether the delay in receiving medical treatment amounted to a constitutional violation. See Frost, 152 F.3d at 1130 (holding that pretrial detainee did not establish that defendants were deliberately indifferent to his medical needs as to “alleged delays in administering his pain medication, in treating his broken nose, and in providing him with a replacement crutch”).
The district court did not abuse its discretion by denying Dawes’s motions for *885appointment of counsel because Dawes failed to demonstrate “exceptional circumstances” warranting appointment of counsel. Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir.1991).
Dawes’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 **
Federal prisoner Lee Andrew Cain appeals pro se from the district court’s judgment dismissing his 28 U.S.C. § 2241 petition challenging the denial of prior custody credit. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
Cain contends that he is entitled to pre-sentence custody credit for time spent in a community corrections center while on pretrial release, because the restrictive conditions at the center amounted to “official detention” within the meaning of 18 U.S.C. § 3585(b). This contention fails under Reno v. Koray, 515 U.S. 50, 65, 115 S.Ct. 2021, 132 L.Ed.2d 46 (1995) (holding that a defendant required to reside at a community treatment center while released on bail is not entitled to credit pursuant to § 3585(b)).
We decline to address claims Cain has raised for the first time on appeal. See Allen v. Ornoski, 435 F.3d 946, 960 (9th Cir.2006).
Cain’s motion to expedite this appeal is denied as moot.
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
Upon consideration of the joint motion to dismiss these appeals,
IT IS ORDERED THAT:
(1) The motion is granted.
(2) Any other pending motions are denied as moot.
(3) Each side shall bear its own costs.
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ON MOTION
ORDER
The parties move jointly to dismiss this appeal.*
Upon consideration thereof,
IT IS ORDERED THAT:
(1) The motion is granted.
(2) Each side shall bear its own costs.
The parties request that this dismissal be with prejudice; however, it is not the practice of this court to dismiss with or without prejudice.
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MEMORANDUM **
Daniel C. Edington and his wife Noreen Edington appeal pro se from the district court’s summary judgment for defendants in their action alleging violations of the *890Americans with Disabilities Act (ADA), the Rehabilitation Act, the Equal Protection Clause, and various federal criminal statutes. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo, Gibson v. County of Washoe, 290 F.3d 1175, 1180 (9th Cir.2002), and we affirm.
The district court properly granted summary judgment on plaintiffs’ ADA and Rehabilitation Act claims because plaintiffs did not raise a triable issue as to whether Yavapai County employees discriminated against Daniel Edington due to a perception that Mr. Edington was disabled. See Weinreich v. Los Angeles County Metropolitan Transp. Authority, 114 F.3d 976, 978-79 (9th Cir.1997) (“To prove a public program or service violates Title II of the ADA, a plaintiff must show (1) he is a ‘qualified individual with a disability’; (2) he was either excluded from participation in or denied the benefits of a public entity’s services, programs or activities, or was otherwise discriminated against by the public entity; and (3) such exclusion, denial of benefits, or discrimination was by reason of his disability.”); Douglas v. Cal. Dept. of Youth Auth., 285 F.3d 1226, 1229-30 n. 3 (9th Cir.2002) (explaining that cases interpreting the Rehabilitation Act and the ADA are “interchangeable”).
The district court properly granted summary judgment on the selective enforcement claims because, other than their subjective beliefs, the Edingtons failed to produce evidence raising a triable issue as to whether County law enforcement officials failed to arrest other similarly situated citizens for disorderly conduct and harassment. See Rosenbaum v. City and County of San Francisco, 484 F.3d 1142, 1152-53 (9th Cir.2007) (explaining elements of a selective enforcement claim); Cornwell v. Electra Cent. Credit Union, 439 F.3d 1018, 1028-29 n. 6 (9th Cir.2006) (explaining that a plaintiff may not defeat a defendant’s motion for summary judgment “by relying solely on the plaintiffs subjective belief that the challenged [] action was [wrong]”).
The district court properly granted summary judgment on the malicious prosecution claim because there was no evidence suggesting that Daniel Edington was prosecuted without probable cause. See Freeman v. City of Santa Ana, 68 F.3d 1180, 1189 (9th Cir.1995) (disposing of plaintiffs malicious prosecution claims because she was “unable to show that she was prosecuted without probable cause[,]” and stating that “the mere fact a prosecution was unsuccessful does not mean it was not supported by probable cause.”).
The Edingtons’ remaining contentions are unpersuasive.
We deny all pending motions.
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 **
Segundo Medardo Recalde Cadena, his wife Flor Del Carmen Moreno Condor, and daughter Guadalupe Elizabeth Gutierrez Moreno, natives and citizens of Ecuador, petition for review of the Board of Immigration Appeals’ (“BIA”) order denying their motion to reopen. We have jurisdiction pursuant to 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reopen and review de novo claims of due process violations, including ineffective assistance of counsel claims. Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir.2005). We deny the petition for review.
We agree with the BIA that petitioners failed to show they were prejudiced by their former counsel’s performance. See Rojas-Garcia v. Ashcroft, 339 F.3d 814, 826 (9th Cir.2003) (where petitioner’s counsel failed to file a brief with the BIA, presumption of prejudice was rebutted because petitioner could not demonstrate plausible grounds for relief).
Petitioners contend that the BIA violated due process in requiring them to show plausible grounds for relief without providing a transcript of their hearing. Petitioners, however, have not demonstrated that they were prejudiced by the lack of a transcript. Cf. Siong v. INS, 376 F.3d 1030, 1041-42 (9th Cir.2004) (holding that a transcript would reveal whether petitioner had plausible grounds for relief where IJ denied asylum claim in part due to *892petitioner’s unresponsive answers, and the transcript could reveal these were due to a faulty translation).
Petitioners’ contention that the BIA used the incorrect prejudice standard is not supported by the record.
PETITION FOR REVIEW DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
John Fitzgerald Harris appeals from the district court’s denial of his motion to re*894duce his sentence under 18 U.S.C. § 3582(c)(2). We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
Harris contends the district court erred by denying his § 3582(c)(2) motion because his sentence was based on a range that has been lowered by Amendment 706 to the United States Sentencing Guidelines. The district court lacked authority to reduce Harris’ below-guidelines sentence because the record demonstrates that Harris’ sentence was not based on the Guidelines. See United States v. Bride, 581 F.3d 888, 891 (9th Cir.2009).
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 **
David Alexander Hodges appeals pro se from the district court’s judgment dismissing his 42 U.S.C. § 1988 action alleging that Holiday Inn Select induced local police officers to detain him and charge him with trespassing. We have jurisdiction under 28 U.S.C. § 1291. We review de novo, Zucco Partners, LLC v. Digimarc Corp., 552 F.3d 981, 989 (9th Cir.2009), and we affirm.
The district court properly dismissed the section 1983 claims because the allegations in the Second Amended Complaint, taken as true and construed in a light most favorable to Hodges, do not suggest that Holiday Inn Select acted under color of law. See Dietrich v. John Ascuaga’s Nugget, 548 F.3d 892, 900 (9th Cir.2008) (“[A] bare allegation of ... joint action will not overcome a motion to dismiss .... [Tjhere is no evidence that Defendants ... did anything more than summon police. Merely complaining to the police does not convert a private party into a state actor.”) (internal quotation marks and citations omitted).
Because Hodges does not raise arguments regarding the district court’s dismissal of his state law claims, he waives any such challenge on appeal. See Greenwood v. FAA, 28 F.3d 971, 977 (9th Cir.1994) (“We review only issues which are argued specifically and distinctly in a party’s opening brief. We will not manufacture arguments for an appellant ....”) (internal citation omitted).
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 **
Daniel C. Edington and his wife Noreen Edington appeal pro se from the district court’s summary judgment for defendants in their action alleging violations of the *890Americans with Disabilities Act (ADA), the Rehabilitation Act, the Equal Protection Clause, and various federal criminal statutes. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo, Gibson v. County of Washoe, 290 F.3d 1175, 1180 (9th Cir.2002), and we affirm.
The district court properly granted summary judgment on plaintiffs’ ADA and Rehabilitation Act claims because plaintiffs did not raise a triable issue as to whether Yavapai County employees discriminated against Daniel Edington due to a perception that Mr. Edington was disabled. See Weinreich v. Los Angeles County Metropolitan Transp. Authority, 114 F.3d 976, 978-79 (9th Cir.1997) (“To prove a public program or service violates Title II of the ADA, a plaintiff must show (1) he is a ‘qualified individual with a disability’; (2) he was either excluded from participation in or denied the benefits of a public entity’s services, programs or activities, or was otherwise discriminated against by the public entity; and (3) such exclusion, denial of benefits, or discrimination was by reason of his disability.”); Douglas v. Cal. Dept. of Youth Auth., 285 F.3d 1226, 1229-30 n. 3 (9th Cir.2002) (explaining that cases interpreting the Rehabilitation Act and the ADA are “interchangeable”).
The district court properly granted summary judgment on the selective enforcement claims because, other than their subjective beliefs, the Edingtons failed to produce evidence raising a triable issue as to whether County law enforcement officials failed to arrest other similarly situated citizens for disorderly conduct and harassment. See Rosenbaum v. City and County of San Francisco, 484 F.3d 1142, 1152-53 (9th Cir.2007) (explaining elements of a selective enforcement claim); Cornwell v. Electra Cent. Credit Union, 439 F.3d 1018, 1028-29 n. 6 (9th Cir.2006) (explaining that a plaintiff may not defeat a defendant’s motion for summary judgment “by relying solely on the plaintiffs subjective belief that the challenged [] action was [wrong]”).
The district court properly granted summary judgment on the malicious prosecution claim because there was no evidence suggesting that Daniel Edington was prosecuted without probable cause. See Freeman v. City of Santa Ana, 68 F.3d 1180, 1189 (9th Cir.1995) (disposing of plaintiffs malicious prosecution claims because she was “unable to show that she was prosecuted without probable cause[,]” and stating that “the mere fact a prosecution was unsuccessful does not mean it was not supported by probable cause.”).
The Edingtons’ remaining contentions are unpersuasive.
We deny all pending motions.
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 **
Segundo Medardo Recalde Cadena, his wife Flor Del Carmen Moreno Condor, and daughter Guadalupe Elizabeth Gutierrez Moreno, natives and citizens of Ecuador, petition for review of the Board of Immigration Appeals’ (“BIA”) order denying their motion to reopen. We have jurisdiction pursuant to 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reopen and review de novo claims of due process violations, including ineffective assistance of counsel claims. Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir.2005). We deny the petition for review.
We agree with the BIA that petitioners failed to show they were prejudiced by their former counsel’s performance. See Rojas-Garcia v. Ashcroft, 339 F.3d 814, 826 (9th Cir.2003) (where petitioner’s counsel failed to file a brief with the BIA, presumption of prejudice was rebutted because petitioner could not demonstrate plausible grounds for relief).
Petitioners contend that the BIA violated due process in requiring them to show plausible grounds for relief without providing a transcript of their hearing. Petitioners, however, have not demonstrated that they were prejudiced by the lack of a transcript. Cf. Siong v. INS, 376 F.3d 1030, 1041-42 (9th Cir.2004) (holding that a transcript would reveal whether petitioner had plausible grounds for relief where IJ denied asylum claim in part due to *892petitioner’s unresponsive answers, and the transcript could reveal these were due to a faulty translation).
Petitioners’ contention that the BIA used the incorrect prejudice standard is not supported by the record.
PETITION FOR REVIEW DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
In these consolidated petitions for review, Maria Magdalena Sanchez Navarro, a native and citizen of Mexico, seeks review of the Board of Immigration Appeals’ (“BIA”) order dismissing her appeal from *893an immigration judge’s decision denying her application for cancellation of removal and its order denying her motion to reopen. We have jurisdiction pursuant to 8 U.S.C. § 1252. We review for substantial evidence the agency’s findings of fact, Landin-Zavala v. Gonzales, 488 F.3d 1150, 1151 (9th Cir.2007), for abuse of discretion the denial of a motion to reopen, and de novo claims of due process violations, Iturribarria v. INS, 321 F.3d 889, 894 (9th Cir.2003). We deny the petitions for review.
Substantial evidence supports the agency’s determination that Sanchez Navarro did not meet the continuous physical presence requirement where the record indicates that Sanchez Navarro was placed in exclusion proceedings in 1994 and ordered excluded. See Landin-Zavala, 488 F.3d at 1153 (order of exclusion terminates the accrual of physical presence); see also Juarez-Ramos v. Gonzales, 485 F.3d 509, 512 (9th Cir.2007) (expedited removal order sufficient to interrupt an alien’s continuous physical presence).
The BIA did not abuse its discretion in denying Sanchez Navarro’s motion to reopen where Sanchez Navarro failed to establish that ineffective assistance of counsel may have affected the outcome of her case. See Rojas-Garcia v. Ashcroft, 339 F.3d 814, 826 (9th Cir.2003) (to prevail on an ineffective assistance of counsel claim a petitioner must demonstrate prejudice). It follows that the denial of Sanchez Navarro’s motion to reopen did not violate due process. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir.2000) (requiring error for a due process violation).
Sanchez Navarro’s remaining contentions are unavailing.
PETITIONS FOR REVIEW DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
John Fitzgerald Harris appeals from the district court’s denial of his motion to re*894duce his sentence under 18 U.S.C. § 3582(c)(2). We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
Harris contends the district court erred by denying his § 3582(c)(2) motion because his sentence was based on a range that has been lowered by Amendment 706 to the United States Sentencing Guidelines. The district court lacked authority to reduce Harris’ below-guidelines sentence because the record demonstrates that Harris’ sentence was not based on the Guidelines. See United States v. Bride, 581 F.3d 888, 891 (9th Cir.2009).
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 **
Oliver Hilsenrath appeals pro se from the district court’s order denying his motion to modify the conditions of his probation. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
Hilsenrath contends that the district court erred by denying his motion to modify the condition of probation which requires him to provide a DNA sample because it violates his rights under the Religious Freedom Restoration Act of 1993. This contention fails because Hilsenrath is not permitted to use such a motion as a backdoor challenge to the legality of the condition. See United States v. Gross, 307 F.3d 1043, 1044 (9th Cir.2002).
Because we affirm on another basis, we decline to address the government’s contention that this appeal is barred by a valid appeal waiver.
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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*116ORDER
The appellant having failed to pay the docketing fee required by Federal Circuit Rule 52(a)(1) within the time permitted by the rules, it is
ORDERED that the notice of appeal be, and the same hereby is, DISMISSED, for failure to prosecute in accordance with the rules.
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MEMORANDUM **
Wilfredo Kabiling Tributo, a native and citizen of the Philippines, petitions for review of the Board of Immigration Appeals’(“BIA”) order dismissing his appeal from an immigration judge’s (“IJ”) decision denying his motion for a continuance and his asylum application. Our jurisdiction is governed by 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion for a continuance, Nakamoto v. Ashcroft, 363 F.3d 874, 883 n. 6 (9th Cir.2004), and review de novo questions of law, Colmenar v. INS, 210 F.3d 967, 971 (9th Cir.2000). We dismiss in part and deny in part the petition for review.
We lack jurisdiction to consider Tribu-to’s unexhausted contention that the IJ erred by failing to advise Tributo that the fingerprints he previously provided were out of date. See Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir.2004) (generally requiring exhaustion of claims before the BIA).
Tribute’s contention regarding 8 C.F.R. § 1208.10 is unavailing. Moreover, the IJ did not abuse his discretion in denying Tribute’s motion for a continuance because the IJ warned him that failure to provide fingerprints would result in the denial of his application. See Sandoval-Luna v. Mukasey, 526 F.3d 1243, 1246-47 (9th Cir.2008); cf. Cui v. Mukasey, 538 F.3d 1289, 1293-95 (9th Cir.2008). It follows that Tribute’s due process claim fails. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir.2000) (requiring error to establish a due process violation).
PETITION FOR REVIEW DISMISSED in part; DENIED in part.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Melvin Nakatsukasa Basa appeals from his sentence of 7 months in prison and 53 months supervised release imposed upon revocation of supervised release. Pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), Basa’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 direct appeal.
We deny the government’s motion to dismiss for failure to prosecute.
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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MEMORANDUM **
Yuritzi Yazmin Rosales Salto, a native and citizen of Mexico, petitions pro se for review of the Board of Immigration Appeals’ (“BIA”) order denying her motion to reopen removal proceedings. We have jurisdiction pursuant to 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reopen. Iturribarria v. INS, 321 F.3d 889, 894 (9th Cir.2003). We deny the petition for review.
The BIA did not abuse its discretion in denying Rosales Salto’s motion to reopen because she failed to state any new facts or present any new evidence to demonstrate the requisite physical presence. See 8 C.F.R. § 1003.2(c)(1) (providing that a motion to reopen “shall state the new facts that will be proven at a hearing to be held if the motion is granted and shall be supported by affidavits or other evidentiary material”). Further, Rosales Salto did not demonstrate prima facie eligibility for adjustment of status pursuant to 8 U.S.C. § 1255(i) because her 1-130 petition was filed after April 30, 2001. See 8 C.F.R. § 1245.10(a)(l)(i); see also Mendez-Gutierrez v. Ashcroft, 340 F.3d 865, 869-70 (9th Cir.2003) (“[Pjrima facie eligibility for the relief sought is a prerequisite for the granting of a motion to reopen.”).
*898We do not consider Rosales Salto’s contention regarding hardship, because her failure to establish continuous physical presence is dispositive. See 8 U.S.C. § 1229b(b)(l)(A).
PETITION FOR REVIEW DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Sonia Ninette Bolanos Ortiz and her son, natives and citizens of Guatemala, petition for review of the Board of Immigration Appeals’ order dismissing their appeal from an immigration judge’s (“IJ”) decision denying their application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence, Lim v. INS, 224 F.3d 929, 933 (9th Cir.2000), and we deny the petition for review.
*899Substantial evidence supports the IJ’s finding that the threatening letters, the visit by the military to lead petitioner’s home, and the loss of lead petitioner’s job did not amount to past persecution. See id. at 936-37. Further, substantial evidence supports the IJ’s finding that petitioners did not demonstrate a well-founded fear of future persecution based on the length of time since lead petitioner left Guatemala and evidence of country conditions in the record. See Molina-Estrada v. INS, 293 F.3d 1089, 1095-96 (9th Cir.2002) (When a petitioner has not established past persecution, the agency may “rely on all relevant evidence in the record, including a State Department report, in considering whether the petitioner has demonstrated that there is good reason to fear future persecution.”). Accordingly, petitioners’ asylum claim fails.
Because petitioners failed to establish eligibility for asylum, they necessarily failed to meet the more stringent standard for withholding of removal. See Zehatye v. Gonzales, 453 F.3d 1182, 1190 (9th Cir.2006).
Substantial evidence supports the IJ’s denial of CAT relief, because petitioners failed to establish that it is more likely than not that they would be tortured if returned to Guatemala. See El Himri v. Ashcroft, 378 F.3d 932, 938 (9th Cir.2004).
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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JUDGMENT
PER CURIAM.
This appeal was considered on the record from the United States District Court for the District of Columbia and on the brief filed by appellant. See Fed. R.App. P. 34(a)(2); D.C.Cir. Rule 34(j). It is
ORDERED AND ADJUDGED that the district court’s orders filed April 2 and April 22, 2009, be affirmed. The district court correctly held that appellant must challenge his convictions through a motion to vacate his sentence under 28 U.S.C. § 2255 filed in the sentencing court, that his challenges to the legitimacy of that court are frivolous, and that he presented no valid grounds for reconsideration.
Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or petition for rehearing en banc. See Fed. R.App. P. 41(b); D.C.Cir. Rule 41.
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MEMORANDUM **
Wilfredo Kabiling Tributo, a native and citizen of the Philippines, petitions for review of the Board of Immigration Appeals’(“BIA”) order dismissing his appeal from an immigration judge’s (“IJ”) decision denying his motion for a continuance and his asylum application. Our jurisdiction is governed by 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion for a continuance, Nakamoto v. Ashcroft, 363 F.3d 874, 883 n. 6 (9th Cir.2004), and review de novo questions of law, Colmenar v. INS, 210 F.3d 967, 971 (9th Cir.2000). We dismiss in part and deny in part the petition for review.
We lack jurisdiction to consider Tribu-to’s unexhausted contention that the IJ erred by failing to advise Tributo that the fingerprints he previously provided were out of date. See Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir.2004) (generally requiring exhaustion of claims before the BIA).
Tribute’s contention regarding 8 C.F.R. § 1208.10 is unavailing. Moreover, the IJ did not abuse his discretion in denying Tribute’s motion for a continuance because the IJ warned him that failure to provide fingerprints would result in the denial of his application. See Sandoval-Luna v. Mukasey, 526 F.3d 1243, 1246-47 (9th Cir.2008); cf. Cui v. Mukasey, 538 F.3d 1289, 1293-95 (9th Cir.2008). It follows that Tribute’s due process claim fails. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir.2000) (requiring error to establish a due process violation).
PETITION FOR REVIEW DISMISSED in part; DENIED in part.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Melvin Nakatsukasa Basa appeals from his sentence of 7 months in prison and 53 months supervised release imposed upon revocation of supervised release. Pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), Basa’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 direct appeal.
We deny the government’s motion to dismiss for failure to prosecute.
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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MEMORANDUM **
Sonia Ninette Bolanos Ortiz and her son, natives and citizens of Guatemala, petition for review of the Board of Immigration Appeals’ order dismissing their appeal from an immigration judge’s (“IJ”) decision denying their application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence, Lim v. INS, 224 F.3d 929, 933 (9th Cir.2000), and we deny the petition for review.
*899Substantial evidence supports the IJ’s finding that the threatening letters, the visit by the military to lead petitioner’s home, and the loss of lead petitioner’s job did not amount to past persecution. See id. at 936-37. Further, substantial evidence supports the IJ’s finding that petitioners did not demonstrate a well-founded fear of future persecution based on the length of time since lead petitioner left Guatemala and evidence of country conditions in the record. See Molina-Estrada v. INS, 293 F.3d 1089, 1095-96 (9th Cir.2002) (When a petitioner has not established past persecution, the agency may “rely on all relevant evidence in the record, including a State Department report, in considering whether the petitioner has demonstrated that there is good reason to fear future persecution.”). Accordingly, petitioners’ asylum claim fails.
Because petitioners failed to establish eligibility for asylum, they necessarily failed to meet the more stringent standard for withholding of removal. See Zehatye v. Gonzales, 453 F.3d 1182, 1190 (9th Cir.2006).
Substantial evidence supports the IJ’s denial of CAT relief, because petitioners failed to establish that it is more likely than not that they would be tortured if returned to Guatemala. See El Himri v. Ashcroft, 378 F.3d 932, 938 (9th Cir.2004).
PETITION FOR REVIEW DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
California state prisoner Dana DeSosa appeals from the district court’s judgment denying his 28 U.S.C. § 2254 habeas petition. We have jurisdiction pursuant to 28 U.S.C. § 2253, and we affirm.
*902DeSosa contends that trial counsel was ineffective in eliciting damaging testimony from a defense investigator. However, counsel’s strategic decision to bring out inconsistencies in the prosecution’s case through the defense investigator’s testimony was not unreasonable. The district court did not err in concluding that DeSosa failed to establish either deficient performance or resulting prejudice under the standard announced in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
DeSosa further contends that his “Three Strikes” sentence of twenty-five years to life constitutes cruel and unusual punishment under the Eighth Amendment. Given the circumstances of the offense and of DeSosa’s prior convictions, we cannot say that the California Court of Appeal unreasonably applied federal law when it determined that DeSosa’s sentence was not grossly disproportionate. See 28 U.S.C. § 2254(d)(1); Lockyer v. Andrade, 538 U.S. 63, 72-73, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003); see also Rios v. Garcia, 390 F.3d 1082, 1086 (9th Cir.2004) (upholding “Three Strikes” sentence of twenty-five years to life for felony petty theft where petitioner struggled with loss prevention officer and prior robbery strikes involved threat of violence).
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 **
Oregon state prisoner Appleton Pickett, Jr., appeals from the district court’s judgment dismissing his 28 U.S.C. § 2254 ha-beas petition. We have jurisdiction pursuant to 28 U.S.C. § 2253, and we affirm.
The district court dismissed the petition, in part, on the grounds that it was untimely. Pickett contends that his petition was timely under 28 U.S.C. § 2244(d)(1)(C) because he filed it within one year of the Supreme Court’s decision in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). This argument lacks merit because Pickett has not shown that he filed his petition within a year of the date on which the right he asserts was “newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review.” See 28 U.S.C. § 2244(d)(1)(C); see also Schardt v. Payne, 414 F.3d 1025, 1038 (9th Cir.2005) (concluding that the new rule announced in Blakely does not apply retroactively to a conviction that was final before that decision was announced).
In light of this disposition, we decline to reach Pickett’s contention that he has a constitutional right to a unanimous jury verdict.
We construe Pickett’s briefing of an un-certified ineffective assistance of counsel claim as a motion to expand the certificate of appealability, and we deny the motion. See 9th Cir. R. 22-l(e); Hiivala v. Wood, 195 F.3d 1098, 1104-05 (9th Cir.1999) (per curiam).
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 **
Washington state prisoner Young Ho Chang appeals from the district court’s judgment denying his 28 U.S.C. § 2255 motion. We have jurisdiction pursuant to 28 U.S.C. § 2258, and we affirm.
Chang contends that he received ineffective assistance of counsel when his trial attorney failed to inform him that he faced automatic deportation, based on the amount of loss and restitution involved in his conviction. Even assuming that counsel’s advice constituted deficient performance, Chang has failed to show that there is a reasonable probability that, but for counsel’s unprofessional errors, he would not have pleaded guilty and would have insisted on going to trial. Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 208 (1985). Nor has Chang shown a reasonable probability that any attempted renegotiation of the plea agreement would have been successful. Cf United States v. Kwan, 407 F.3d 1005, 1017-18 (9th Cir.2005).
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 **
Jorge Julio Heredia Mendez, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (“BIA”) order denying his motion to reopen based on ineffective assistance of counsel. We have jurisdiction under 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reopen, and review de novo claims of due process violations based on ineffective assistance of counsel. Mohammed v. Gonzales, 400 F.8d 785, 791-92 (9th Cir.2005). We deny the petition for review.
The BIA did not abuse its discretion in denying Heredia Mendez’s motion to reopen because he failed to establish prejudice. See Rojas-Garcia v. Ashcroft, 339 F.3d 814, 826 (9th Cir.2003) (to prevail on an ineffective assistance of counsel claim, petitioner must demonstrate prejudice).
PETITION FOR REVIEW DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Oregon state prisoner Appleton Pickett, Jr., appeals from the district court’s judgment dismissing his 28 U.S.C. § 2254 ha-beas petition. We have jurisdiction pursuant to 28 U.S.C. § 2253, and we affirm.
The district court dismissed the petition, in part, on the grounds that it was untimely. Pickett contends that his petition was timely under 28 U.S.C. § 2244(d)(1)(C) because he filed it within one year of the Supreme Court’s decision in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). This argument lacks merit because Pickett has not shown that he filed his petition within a year of the date on which the right he asserts was “newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review.” See 28 U.S.C. § 2244(d)(1)(C); see also Schardt v. Payne, 414 F.3d 1025, 1038 (9th Cir.2005) (concluding that the new rule announced in Blakely does not apply retroactively to a conviction that was final before that decision was announced).
In light of this disposition, we decline to reach Pickett’s contention that he has a constitutional right to a unanimous jury verdict.
We construe Pickett’s briefing of an un-certified ineffective assistance of counsel claim as a motion to expand the certificate of appealability, and we deny the motion. See 9th Cir. R. 22-l(e); Hiivala v. Wood, 195 F.3d 1098, 1104-05 (9th Cir.1999) (per curiam).
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 **
Washington state prisoner Young Ho Chang appeals from the district court’s judgment denying his 28 U.S.C. § 2255 motion. We have jurisdiction pursuant to 28 U.S.C. § 2258, and we affirm.
Chang contends that he received ineffective assistance of counsel when his trial attorney failed to inform him that he faced automatic deportation, based on the amount of loss and restitution involved in his conviction. Even assuming that counsel’s advice constituted deficient performance, Chang has failed to show that there is a reasonable probability that, but for counsel’s unprofessional errors, he would not have pleaded guilty and would have insisted on going to trial. Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 208 (1985). Nor has Chang shown a reasonable probability that any attempted renegotiation of the plea agreement would have been successful. Cf United States v. Kwan, 407 F.3d 1005, 1017-18 (9th Cir.2005).
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 **
Liysa Northon appeals pro se from the district court’s order granting defendants’ special motion to strike under Oregon’s anti-SLAPP statute, Or.Rev.Stat. § 31.150. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo, Gardner v. Martino, 563 F.3d 981, 986 (9th Cir.2009), and we affirm.
The district court did not err in granting defendants’ special motion because Northon failed to meet her burden of establishing that there was a probability that she would prevail on her claims. See id. at 986 (explaining that plaintiff has burden to “establish that there is a probability that the plaintiff will prevail on the claim by presenting substantial evidence to support a prima facie case”).
Specifically, Northon failed to show how any statements made in defendants’ book may have been defamatory. See id. at 989 (affirming dismissal of defamation claim because, inter alia, plaintiff failed to present substantial evidence to support a pri-ma facie case).
*907Northon’s contention that the magistrate judge was impermissibly biased against her is unavailing because she never filed a recusal motion pursuant to 28 U.S.C. § 144. See United States v. Castro, 887 F.2d 988,1000 (9th Cir.1989).
Northon’s contention regarding ineffective assistance of counsel before the district court is unavailing because a plaintiff has no constitutional right to effective assistance of counsel in a civil action. See Nicholson v. Rushen, 767 F.2d 1426, 1427 (9th Cir.1985) (per curiam).
We do not consider issues Northon has raised for the first time on appeal. See Turnacliff v. Westly, 546 F.3d 1113, 1120 (9th Cir.2008) (declining to consider a new issue on appeal)
Northon’s remaining contentions lack merit.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3.
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MEMORANDUM ***
Margarita Q. Taitano appeals pro se from the district court’s summary judgment for the Secretary of the United States Navy in her employment discrimination action. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo, Lyons v. England, 307 F.3d 1092, 1103 (9th Cir.2002), and affirm.
The district court properly granted summary judgment on Taitano’s Title VII retaliation claims because she failed to establish a prima facie case. See id. at 1118 (affirming summary judgment for the Navy on retaliation claim where plaintiff failed to make out a prima facie case that (1) she engaged in a protected activity, (2) she suffered an adverse employment decision, and (3) there was a causal link between plaintiffs activity and the employment decision).
Taitano’s above-average evaluation did “not rise to the level of an adverse employment action by the employer.” Id. (explaining that a “performance evaluation that [is] mediocre (rather than ‘sub-average’) and that [does] not give rise to any further negative employment action [does] not violate Title VII”).
Taitano’s temporary re-assignment to another section within her department also did not constitute an adverse employment decision, because the record indicates that Taitano preferred the re-assignment given that she did not have to report to the supervisor with whom she had a strained relationship. See Burlington N. and Santa Fe Ry. Co. v. White, 548 U.S. 53, 67, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006) (“The antiretaliation provision [of Title VII] protects an individual not from all retaliation, but from retaliation that produces an injury or harm.”).
The determination that Taitano’s position was “excess,” and would be eventually phased-out, was made before Taitano engaged in protected activity, and therefore there can be no causal link between the two. See Lyons, 307 F.3d at 1118 (explaining that a causal link between plaintiff’s activity and the employment decision is a necessary element of a successful retaliation claim).
We do not consider the district court’s disposition of Taitano’s disparate treatment or hostile work environment claims, because Taitano develops no argument as to those rulings. See Indep. Towers of Wash. v. Washington, 350 F.3d 925, 929 (9th Cir.2003) (explaining that issues not argued on appeal are deemed abandoned); see also Pierce v. Multnomah County, 76 F.3d 1032, 1037 n. 3 (9th Cir.1996) (applying rule to pro se litigants).
Nor do we consider issues Taitano raises for the first time on appeal. See Mac*909Donald v. Grace Church Seattle, 457 F.3d 1079, 1086 (9th Cir.2006).
Taitano’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 **
Barry Simon Jameson, a California state prisoner, appeals pro se from the district court’s order denying him leave to proceed in forma pauperis in his 42 U.S.C. § 1983 action alleging that defendants violated his constitutional rights. We have jurisdiction under 28 U.S.C. § 1291. We review for an abuse of discretion. O’Loughlin v. Doe, 920 F.2d 614, 616 (9th Cir.1990). We reverse and remand.
Under this Court’s decision in Andrews v. King, 398 F.3d 1113, 1122 (9th Cir.2005), a dismissed habeas petition does not count as a “strike” under 28 U.S.C. § 1915(g). Because the district court treated as a strike the dismissed habeas petition in Jameson v. Ratelle, No. 96-cv-00299-J-*910RCM (S.D.Cal. Jan. 27, 1997) (order), we reverse the dismissal and remand for further proceedings.
All outstanding motions are denied.
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 **
Mark Lee Stinson appeals from the district court’s judgment dismissing his 28 U.S.C. § 2254 petition for lack of jurisdiction. We affirm.
The district court correctly determined that Stinson’s original § 2254 petition, which was dismissed because it was untimely, was disposed of on the merits for purposes of 28 U.S.C. § 2244(b)(3). McNabb v. Yates, 576 F.3d 1028, 1029-30 (9th Cir.2009) (per curiam). As a result, the § 2254 petition that Stinson filed in 2006 was a second or successive petition. See id at 1030. Therefore, Stinson was required to obtain authorization from this Court before filing the petition in the district court. See 28 U.S.C. § 2244(b)(3). Because Stinson failed to obtain such authorization, the district court properly concluded that it lacked jurisdiction to consider the petition. See Cooper v. Calderon, *911274 F.3d 1270, 1274 (9th Cir.2001) (per curiam).
Stinson’s request for counsel is denied.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Santos Hatfield appeals from his guilty-plea conviction and 92-month sentence for being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). Pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), Hatfield’s counsel has filed a brief stating there are no grounds for relief, along with a motion to withdraw as counsel of record. Hatfield has filed a pro se supplemental opening brief and a pro se reply brief, and the government has filed an answering brief.
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 direct 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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JUDGMENT
PER CURIAM.
Upon consideration of the record from the United States District Court for the District of Columbia and the briefs filed by the parties, it is
ORDERED AND ADJUDGED that the district court’s order filed January 23, 2009, be affirmed. The district court properly dismissed appellant’s claims under 26 U.S.C. § 7433 for lack of subject matter jurisdiction. Dockery v. U.S. Dep’t of Treas., 593 F.Supp.2d 258 (D.D.C.2009).
Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or petition for rehearing en banc. See Fed. RApp. P. 41(b); D.C.Cir. Rule 41.
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MEMORANDUM **
Liysa Northon appeals pro se from the district court’s order granting defendants’ special motion to strike under Oregon’s anti-SLAPP statute, Or.Rev.Stat. § 31.150. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo, Gardner v. Martino, 563 F.3d 981, 986 (9th Cir.2009), and we affirm.
The district court did not err in granting defendants’ special motion because Northon failed to meet her burden of establishing that there was a probability that she would prevail on her claims. See id. at 986 (explaining that plaintiff has burden to “establish that there is a probability that the plaintiff will prevail on the claim by presenting substantial evidence to support a prima facie case”).
Specifically, Northon failed to show how any statements made in defendants’ book may have been defamatory. See id. at 989 (affirming dismissal of defamation claim because, inter alia, plaintiff failed to present substantial evidence to support a pri-ma facie case).
*907Northon’s contention that the magistrate judge was impermissibly biased against her is unavailing because she never filed a recusal motion pursuant to 28 U.S.C. § 144. See United States v. Castro, 887 F.2d 988,1000 (9th Cir.1989).
Northon’s contention regarding ineffective assistance of counsel before the district court is unavailing because a plaintiff has no constitutional right to effective assistance of counsel in a civil action. See Nicholson v. Rushen, 767 F.2d 1426, 1427 (9th Cir.1985) (per curiam).
We do not consider issues Northon has raised for the first time on appeal. See Turnacliff v. Westly, 546 F.3d 1113, 1120 (9th Cir.2008) (declining to consider a new issue on appeal)
Northon’s remaining contentions lack merit.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3.
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MEMORANDUM **
Mark Lee Stinson appeals from the district court’s judgment dismissing his 28 U.S.C. § 2254 petition for lack of jurisdiction. We affirm.
The district court correctly determined that Stinson’s original § 2254 petition, which was dismissed because it was untimely, was disposed of on the merits for purposes of 28 U.S.C. § 2244(b)(3). McNabb v. Yates, 576 F.3d 1028, 1029-30 (9th Cir.2009) (per curiam). As a result, the § 2254 petition that Stinson filed in 2006 was a second or successive petition. See id at 1030. Therefore, Stinson was required to obtain authorization from this Court before filing the petition in the district court. See 28 U.S.C. § 2244(b)(3). Because Stinson failed to obtain such authorization, the district court properly concluded that it lacked jurisdiction to consider the petition. See Cooper v. Calderon, *911274 F.3d 1270, 1274 (9th Cir.2001) (per curiam).
Stinson’s request for counsel is denied.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Santos Hatfield appeals from his guilty-plea conviction and 92-month sentence for being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). Pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), Hatfield’s counsel has filed a brief stating there are no grounds for relief, along with a motion to withdraw as counsel of record. Hatfield has filed a pro se supplemental opening brief and a pro se reply brief, and the government has filed an answering brief.
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 direct 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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MEMORANDUM **
Guillermo Morales appeals from his guilty-plea conviction and 120-month sentence for conspiracy to distribute methamphetamine, in violation of 21 U.S.C. § 846. Pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), Morales’ 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 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 direct 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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MEMORANDUM **
Elias Shume Sirag, a native and citizen of Ethiopia, petitions for review of the Board of Immigration Appeals’ (“BIA”) order denying his motion to reopen based on ineffective assistance of counsel. We have jurisdiction under 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reopen and review de novo ineffective assistance of counsel claims. Iturribarria v. INS, 321 F.3d 889, 894 (9th Cir.2003). We deny the petition for review.
We agree with the BIA that Sirag failed to establish any prejudice that was caused by his former counsel’s performance. See id. at 899-903 (showing of prejudice required to prevail on ineffective assistance of counsel claim).
We reject Sirag’s contention that the BIA failed to address every factual claim he raised in his motion. See Fernandez v. Gonzales, 439 F.3d 592, 603-04 (9th Cir.2006).
Sirag’s remaining contention is unavailing.
PETITION FOR REVIEW DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Gurminder Kaur, a native and citizen of India, petitions for review of the Board of Immigration Appeals’ order dismissing her appeal from an immigration judges’s decision denying her application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252. We review adverse credibility determinations for substantial evidence, Don v. Gonzales, 476 F.3d 738, 741 (9th Cir.2007), and we deny the petition for review.
Substantial evidence supports the agency’s adverse credibility finding based upon Kaur’s internally inconsistent testimony as to whether the police told her how they thought she was working against the government. See id. at 741^12 (inconsistency goes to the heart of the claim if it concerns events central to petitioner’s version of why she was persecuted). Substantial evidence further supports the agency’s adverse credibility finding based upon the inconsistency between Kaur’s declaration and her testimony regarding whether her brother, who Kaur testified was also targeted by the police, was at home when the police came to the house after Kaur’s release from detention, see Kohli v. Gonzales, 473 F.3d 1061, 1071 (9th Cir.2007), and based upon Kaur’s non-responsive and evasive answers to questions regarding her testimony, see Wang v. INS, 352 F.3d 1250, 1256-57 (9th Cir.2003). Absent credible testimony, Kaur’s asylum and withholding of removal claims fail. See Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir.2003).
Because Kaur’s CAT claim is based on the same testimony the agency found not credible, and Kaur does not point to any other evidence the agency should have considered, her CAT claim also fails. See id. at 1156-57.
PETITION FOR REVIEW DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3.
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MEMORANDUM **
Pablo Ricardo Casia Aguilar, a native and citizen of Guatemala, petitions pro se for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration judge’s (“IJ”) decision denying his applications for cancellation of removal, asylum, withholding of removal, protection under the Convention Against Torture (“CAT”), and relief under the Nicaraguan Adjustment and Central American Relief Act of 1997 (“NA-CARA”). We have jurisdiction under 8 U.S.C. § 1252. We review de novo the agency’s legal determinations, see Wakka-ry v. Holder, 558 F.3d 1049, 1056 (9th Cir.2009), we review for substantial evidence factual findings, see id., and we review de novo due process claims, see Fernandez v. Gonzales, 439 F.3d 592, 603 (9th Cir.2006). We deny the petition for review.
Contrary to Casia Aguilar’s contention, the BIA considered his arguments on appeal regarding whether he demonstrated the requisite hardship with respect to cancellation of removal, and the BIA properly declined to reach Casia Aguilar’s remaining arguments pertaining to cancellation of removal because the hardship issue was dispositive. Casia Aguilar’s contention that the BIA did not weigh the evidence *922cumulatively fails because the BIA stated it considered the claimed hardships in the aggregate. Because the BIA did not err, Casia Aguilar’s due process contention fails. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir.2000) (showing of error required to prevail on a due process challenge).
The record does not compel the conclusion that Casia Aguilar timely filed an asylum application, or that he established an excuse for failing to do so. See 8 C.F.R. § 1208.4(a)(4), (5); Ramadan v. Gonzales, 479 F.3d 646, 656-58 (9th Cir.2007) (per curiam). Furthermore, the record does not compel the conclusion that Casia Aguilar was eligible to be granted asylum as a derivative beneficiary because he did not demonstrate his father had been granted asylum. See 8 U.S.C. § 1158(b)(3)(A). Accordingly, we deny the petition as to Casia Aguilar’s asylum claim.
Substantial evidence supports the BIA’s determination that Casia Aguilar did not establish past persecution, see Wakkary, 558 F.3d at 1059-60, and that the harm he fears in the future is not on account of a protected ground, see Ochoa v. Gonzales, 406 F.3d 1166, 1171-72 (9th Cir.2005). Accordingly, we deny the petition as to Casia Aguilar’s withholding of removal claim.
Likewise, substantial evidence supports the agency’s denial of CAT relief because Casia Aguilar did not demonstrate that it was more likely than not that he would be tortured if returned to Guatemala. See Wakkary, 558 F.3d at 1068.
Casia Aguilar does not challenge the agency’s denial of NACARA relief in his opening brief. See Martinez-Serrano v. INS, 94 F.3d 1256, 1259-60 (9th Cir.1996) (issues not specifically raised and argued in a party’s opening brief are waived).
PETITION FOR REVIEW DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Rufino Perez Roma, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration judge’s (“IJ”) decision denying his motion to reopen proceedings held in absentia. Our jurisdiction is governed by 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reopen. Iturribarria v. INS, 321 F.3d 889, 894 (9th Cir.2003). We deny in part and dismiss in part the petition for review.
Perez Roma failed to exhaust his contention that he did not appear at his removal proceedings because of exceptional circumstances. See 8 U.S.C. § 1252(d)(1); Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir.2004).
To the extent Perez Roma challenges the BIA’s June 16, 2005, order vacating its prior order and remanding the administrative record to the IJ, we lack jurisdiction because this petition for review is not timely as to the 2005 order. See Singh v. INS, 315 F.3d 1186, 1188 (9th Cir.2003).
The IJ did not abuse her discretion in denying Perez Roma’s motion to reopen because written notice of the hearing was mailed to the most recent address provided by Perez Roma, see 8 U.S.C. § 1229a(b)(5)(A), and he failed to present any new evidence to demonstrate the requisite hardship, see 8 C.F.R. § 1003.23(b)(3) (providing that a motion to reopen “shall state the new facts that will be proven at a hearing to be held if the motion is granted and shall be supported by affidavits or other evidentiary material”).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
California state prisoner Paul Junior Ramirez appeals from the district court’s judgment denying his 28 U.S.C. § 2254 habeas petition. We have jurisdiction pursuant to 28 U.S.C. § 2253, and we affirm.
Ramirez contends that insufficient evidence supported his jury conviction for aiding and abetting attempted murder. However, the California Court of Appeal’s determination that, viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found Ramirez guilty beyond a reasonable doubt was not an unreasonable application of federal law. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (describing standard for reviewing sufficiency of evidence claim).
Ramirez also contends that the trial court violated his constitutional right to present his theory of the case to the jury by refusing to instruct the jury on imperfect self-defense. However, the district court correctly determined that there was no evidence from which a jury reasonably could have concluded that the shooter had an actual but unreasonable belief that his life was in imminent danger. See Solis v. Garcia, 219 F.3d 922, 929 (9th Cir.2000) (per curiam) (no constitutional error in refusing to give instruction where no substantial evidence supported it).
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 **
Elias Shume Sirag, a native and citizen of Ethiopia, petitions for review of the Board of Immigration Appeals’ (“BIA”) order denying his motion to reopen based on ineffective assistance of counsel. We have jurisdiction under 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reopen and review de novo ineffective assistance of counsel claims. Iturribarria v. INS, 321 F.3d 889, 894 (9th Cir.2003). We deny the petition for review.
We agree with the BIA that Sirag failed to establish any prejudice that was caused by his former counsel’s performance. See id. at 899-903 (showing of prejudice required to prevail on ineffective assistance of counsel claim).
We reject Sirag’s contention that the BIA failed to address every factual claim he raised in his motion. See Fernandez v. Gonzales, 439 F.3d 592, 603-04 (9th Cir.2006).
Sirag’s remaining contention is unavailing.
PETITION FOR REVIEW DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Tereza Arzumanovna, a native of Azerbaijan and citizen of Armenia, petitions for review of the Board of Immigration Appeals’ order dismissing her appeal from an immigration judge’s decision denying her application for asylum, withholding of re*918moval, and relief under the Convention Against Torture (“CAT”), and finding that her asylum application was frivolous. We have jurisdiction under 8 U.S.C. § 1252. We review adverse credibility findings for substantial evidence, Desta v. Ashcroft, 365 F.3d 741, 745 (9th Cir.2004), and we require that a frivolousness finding be supported by a preponderance of the evidence, Ahir v. Mukasey, 527 F.3d 912, 918 (9th Cir.2008). We deny the petition for review.
Substantial evidence supports the agency’s adverse credibility determination based upon Arzumanovna’s submission of a fraudulent membership card in the “Soldier’s Mother” organization, and her failure to provide a compelling explanation to counter evidence that the card was in fact fraudulent. See Desta, 365 F.3d at 745; cf. Yeimane-Berhe v. Ashcroft, 393 F.3d 907, 911-13 (9th Cir.2004) (adverse credibility finding not supported where a fraudulent document was obtained by a third person and there was no evidence that petitioner knew the document was fraudulent). Absent credible testimony, Arzumanovna’s asylum and withholding of removal claims fail. See Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir.2003).
We deny the petition as to Arzumanovna’s CAT claim because her claim is based on testimony the agency found not credible, and there is no other evidence that compels a finding that it is more likely than not she would be tortured if returned to Armenia. See id. at 1156-57.
The agency’s conclusion that Arzumanovna knowingly filed a frivolous asylum application by deliberately fabricating the “Soldier’s Mother” membership card is supported by a preponderance of the evidence in light of the results of the U.S. Embassy’s investigation and the letter from the Executive Director of “Soldier’s Mother” to the Embassy. See Ahir, 527 F.3d at 918-19 (holding that an IJ is permitted to rely on both direct and circumstantial evidence of fabrication in connection with a frivolousness finding). Moreover, Arzumanovna was given “ample opportunity during [the] hearing to address and account for any deliberate, material fabrications.” See id. at 919 (internal quotation omitted).
PETITION FOR REVIEW DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Gurminder Kaur, a native and citizen of India, petitions for review of the Board of Immigration Appeals’ order dismissing her appeal from an immigration judges’s decision denying her application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252. We review adverse credibility determinations for substantial evidence, Don v. Gonzales, 476 F.3d 738, 741 (9th Cir.2007), and we deny the petition for review.
Substantial evidence supports the agency’s adverse credibility finding based upon Kaur’s internally inconsistent testimony as to whether the police told her how they thought she was working against the government. See id. at 741^12 (inconsistency goes to the heart of the claim if it concerns events central to petitioner’s version of why she was persecuted). Substantial evidence further supports the agency’s adverse credibility finding based upon the inconsistency between Kaur’s declaration and her testimony regarding whether her brother, who Kaur testified was also targeted by the police, was at home when the police came to the house after Kaur’s release from detention, see Kohli v. Gonzales, 473 F.3d 1061, 1071 (9th Cir.2007), and based upon Kaur’s non-responsive and evasive answers to questions regarding her testimony, see Wang v. INS, 352 F.3d 1250, 1256-57 (9th Cir.2003). Absent credible testimony, Kaur’s asylum and withholding of removal claims fail. See Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir.2003).
Because Kaur’s CAT claim is based on the same testimony the agency found not credible, and Kaur does not point to any other evidence the agency should have considered, her CAT claim also fails. See id. at 1156-57.
PETITION FOR REVIEW DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3.
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MEMORANDUM **
Pablo Ricardo Casia Aguilar, a native and citizen of Guatemala, petitions pro se for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration judge’s (“IJ”) decision denying his applications for cancellation of removal, asylum, withholding of removal, protection under the Convention Against Torture (“CAT”), and relief under the Nicaraguan Adjustment and Central American Relief Act of 1997 (“NA-CARA”). We have jurisdiction under 8 U.S.C. § 1252. We review de novo the agency’s legal determinations, see Wakka-ry v. Holder, 558 F.3d 1049, 1056 (9th Cir.2009), we review for substantial evidence factual findings, see id., and we review de novo due process claims, see Fernandez v. Gonzales, 439 F.3d 592, 603 (9th Cir.2006). We deny the petition for review.
Contrary to Casia Aguilar’s contention, the BIA considered his arguments on appeal regarding whether he demonstrated the requisite hardship with respect to cancellation of removal, and the BIA properly declined to reach Casia Aguilar’s remaining arguments pertaining to cancellation of removal because the hardship issue was dispositive. Casia Aguilar’s contention that the BIA did not weigh the evidence *922cumulatively fails because the BIA stated it considered the claimed hardships in the aggregate. Because the BIA did not err, Casia Aguilar’s due process contention fails. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir.2000) (showing of error required to prevail on a due process challenge).
The record does not compel the conclusion that Casia Aguilar timely filed an asylum application, or that he established an excuse for failing to do so. See 8 C.F.R. § 1208.4(a)(4), (5); Ramadan v. Gonzales, 479 F.3d 646, 656-58 (9th Cir.2007) (per curiam). Furthermore, the record does not compel the conclusion that Casia Aguilar was eligible to be granted asylum as a derivative beneficiary because he did not demonstrate his father had been granted asylum. See 8 U.S.C. § 1158(b)(3)(A). Accordingly, we deny the petition as to Casia Aguilar’s asylum claim.
Substantial evidence supports the BIA’s determination that Casia Aguilar did not establish past persecution, see Wakkary, 558 F.3d at 1059-60, and that the harm he fears in the future is not on account of a protected ground, see Ochoa v. Gonzales, 406 F.3d 1166, 1171-72 (9th Cir.2005). Accordingly, we deny the petition as to Casia Aguilar’s withholding of removal claim.
Likewise, substantial evidence supports the agency’s denial of CAT relief because Casia Aguilar did not demonstrate that it was more likely than not that he would be tortured if returned to Guatemala. See Wakkary, 558 F.3d at 1068.
Casia Aguilar does not challenge the agency’s denial of NACARA relief in his opening brief. See Martinez-Serrano v. INS, 94 F.3d 1256, 1259-60 (9th Cir.1996) (issues not specifically raised and argued in a party’s opening brief are waived).
PETITION FOR REVIEW DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Rufino Perez Roma, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration judge’s (“IJ”) decision denying his motion to reopen proceedings held in absentia. Our jurisdiction is governed by 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reopen. Iturribarria v. INS, 321 F.3d 889, 894 (9th Cir.2003). We deny in part and dismiss in part the petition for review.
Perez Roma failed to exhaust his contention that he did not appear at his removal proceedings because of exceptional circumstances. See 8 U.S.C. § 1252(d)(1); Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir.2004).
To the extent Perez Roma challenges the BIA’s June 16, 2005, order vacating its prior order and remanding the administrative record to the IJ, we lack jurisdiction because this petition for review is not timely as to the 2005 order. See Singh v. INS, 315 F.3d 1186, 1188 (9th Cir.2003).
The IJ did not abuse her discretion in denying Perez Roma’s motion to reopen because written notice of the hearing was mailed to the most recent address provided by Perez Roma, see 8 U.S.C. § 1229a(b)(5)(A), and he failed to present any new evidence to demonstrate the requisite hardship, see 8 C.F.R. § 1003.23(b)(3) (providing that a motion to reopen “shall state the new facts that will be proven at a hearing to be held if the motion is granted and shall be supported by affidavits or other evidentiary material”).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
California state prisoner Paul Junior Ramirez appeals from the district court’s judgment denying his 28 U.S.C. § 2254 habeas petition. We have jurisdiction pursuant to 28 U.S.C. § 2253, and we affirm.
Ramirez contends that insufficient evidence supported his jury conviction for aiding and abetting attempted murder. However, the California Court of Appeal’s determination that, viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found Ramirez guilty beyond a reasonable doubt was not an unreasonable application of federal law. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (describing standard for reviewing sufficiency of evidence claim).
Ramirez also contends that the trial court violated his constitutional right to present his theory of the case to the jury by refusing to instruct the jury on imperfect self-defense. However, the district court correctly determined that there was no evidence from which a jury reasonably could have concluded that the shooter had an actual but unreasonable belief that his life was in imminent danger. See Solis v. Garcia, 219 F.3d 922, 929 (9th Cir.2000) (per curiam) (no constitutional error in refusing to give instruction where no substantial evidence supported it).
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 **
Daniel Martinez-Hernandez, a native and citizen of Mexico, petitions pro se for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration judge’s (“IJ”) decision denying his application for cancellation of removal. Our jurisdiction is governed by 8 U.S.C. § 1252. We review de novo constitutional claims, Ram v. INS, 243 F.3d 510, 516 (9th Cir.2001), and we dismiss in part and deny in part the petition for review.
We lack jurisdiction to consider any contention regarding the IJ’s determination that Martinez-Hernandez failed to establish eligibility for cancellation of removal, 8 U.S.C. § 1229b(b), because Martinez-Hernandez did not challenge this determination before the BIA, see Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir.2004).
Martinez-Hernandez’ equal protection claim is unpersuasive.
PETITION FOR REVIEW DISMISSED in part; DENIED in part.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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ON MOTION
SCHALL, Circuit Judge.
ORDER
Appellants Dorothy L. Biery, et al. move to reactivate this appeal. The United *173States opposes and moves to dismiss the appeal for lack of jurisdiction. The appellants oppose. The United States replies.
In cases that were later consolidated, the plaintiffs sued the United States alleging that they were entitled to compensation for an unlawful taking. On motions for summary judgment, the United States Court of Federal Claims dismissed one of Biery’s claims, dismissed the claims of the other appellants, and allowed the other plaintiffs’ claims to proceed. Biery appealed. On September 30, 2009, this court deactivated this appeal pursuant to Fed. R.App. P. 4(a)(4), due to possible pending motions in the trial court.
The United States contends that because there are pending claims before the Court of Federal Claims, and because the Court of Federal Claims did not enter a Rule 54(b) judgment on the decided claims, the appeal is premature. We agree. Because there are pending claims, there is no final judgment and this appeal is premature. See Nystrom v. Trex Co., 339 F.3d 1347, 1350 (Fed.Cir.2003) (“If a case is not fully adjudicated as to all claims for all parties and there is no express determination that there is no just reason for delay or express direction for entry of judgment as to fewer than all of the parties or claims, there is no final decision ... and therefore no jurisdiction”). Any adversely affected party may, of course, file a notice of appeal after the Court of Federal claims disposes of all claims and enters final judgment.
Accordingly,
IT IS ORDERED THAT:
(1)The appellants’ motion to reactivate this appeal is moot.
(2) The United States’ motion to dismiss is granted.
(3) Each side shall bear its own costs.
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OPINION
SLOVITER, Circuit Judge.
Appellant Carmen Vega appeals from the District Court’s order affirming the denial by the Administrative Law Judge (“ALJ”) of her application for Social Security Disability benefits. We will affirm.1
*374I.
Judicial review is limited to determining whether there was substantial evidence to support the Commissioner’s decision to deny benefits. 42 U.S.C. § 405(g). Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Pierce v. Underwood, 487 U.S. 552, 565, 108 S.Ct. 2541, 101 L.Ed.2d 490 (1988) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938)). If the Commissioner’s findings of fact are supported by substantial evidence, such findings are binding. Knepp v. Apfel, 204 F.3d 78, 83 (3d Cir.2000).
Because we write primarily for the parties, who are aware of the relevant facts, we discuss them only briefly. Vega is a forty-four-year-old woman with a 12th grade education. Her prior experience includes work as a hospital registration clerk, assembly worker, billing clerk, and a waitress. Vega’s last full-time job, as a wireless communications clerk, ended in February 2004.
Vega filed for Disability Insurance Benefits and Supplemental Security Income in June 2004, alleging inability to work due to symptoms of Grave’s disease. The Commissioner denied both Vega’s initial claim and a subsequent request for reconsideration. Vega then obtained a hearing before the ALJ.
In that hearing, Vega testified that she was diagnosed with Grave’s disease in September 2003 and stopped working due to related symptoms such as shortness of breath, hand tremors, blurred vision, irritability, depression, and pain in her bones and joints. Vega acknowledged that she did not like taking medication and that she had not always “tak[en] [her treatment] very seriously.” She also noted that she often missed appointments with her doctors because of memory problems.
Vega asserted that her symptoms precluded her from walking more than five or ten minutes, standing for more than twenty minutes, lifting, sitting, interacting with others, being alone, and staying focused on tasks. Although she claimed her daily activities were limited by these symptoms, Vega had begun to work part-time in a clerical position, as part of a welfare-mandated program, just weeks before the hearing. Vega testified that doing part-time work was difficult, that she had already been absent twice as a result of her disease, and that she could not do clerical work eight hours a day.
After the hearing, the ALJ determined that Vega’s claims related to her physical limitations were “not credible,” Tr. at 19, noting that Vega has the “residual functional capacity [to] perform sedentary work” such as a data entry clerk or a hospital admissions clerk. Tr. at 21. Accordingly, the ALJ concluded, Vega was “not disabled within the meaning of the Social Security Act.” Tr. at 15.
Vega filed a request for review of the ALJ hearing decision, which the Social Security Administration Appeals Council denied. Vega then filed her action in the United States District Court for the District of New Jersey, which issued a memorandum opinion and order affirming the decision of the Commissioner. Vega timely appealed.
II.
Vega is disabled for purposes of the SSA only if her “physical or mental impairment or impairments are of such severity that [s]he is not only unable to do [her] previous work but cannot, considering [her] age, education, and work experience, engage in *375any other kind of substantial gainful work which exists in the national economy....” 42 U.S.C. § 423(d)(2)(A).
In determining whether a claimant is disabled under the SSA, ALJs must perform a five-step, sequential evaluation. 20 C.F.R § 404.1520. The ALJ must review: (1) the claimant’s current work activity; (2) the severity of the claimant’s impairments; (3) whether the claimant’s impairments meet or equal the requirements of an impairment listed in the regulations; (4) whether the claimant has the residual functional capacity to return to past relevant work; and (5) if claimant cannot return to past relevant work, whether she can “make an adjustment to other work” in the national economy. Id. If the claimant is engaged in substantial gainful activity, the claim will be denied. Burnett v. Comm. of Soc. Sec. Admin., 220 F.3d 112, 118 (3d Cir.2000). Similarly, if the claimant fails to show that her disabilities are severe, she is ineligible for benefits. Id.
The ALJ followed this procedure in determining whether Vega met the definition of disability for purposes of the SSA. He determined that Vega had not been engaged in substantial gainful activity since her alleged disability onset date of February 1, 2004, that Vega’s impairment was “severe,” but that it did not “meet or medically equal” any impairments listed in the regulations, and that Vega had the residual functional capacity to do sedentary work in the areas of her past employment. Because he concluded that Vega was not disabled, the ALJ was not required to reach the fifth step.
Vega contends that this determination was improperly based on evidence that she had not been compliant with her prescribed treatment plan. It is true, as Vega asserts, that the ALJ referred to evidence of Vega’s noncompliance in his findings. It is also true that a denial of benefits for failure to follow a prescribed treatment plan may only be issued after the ALJ finds a disabling impairment that precludes engaging in any substantial activity, SSR 82-59, a finding that the ALJ did not make here.
However, it was not Vega’s noncompliance with her treatment that was the basis for the denial of benefits; rather, it was her residual functional capacity to return to sedentary work. Viewed in the context of the ALJ’s findings as a whole, his reference to Vega’s noncompliance shows that he treated it as a factor in analyzing the credibility of Vega’s testimony. Because an ALJ may consider a claimant less credible if the individual fails to follow the prescribed treatment plan without good reason, see SSR 96-7p, this was not improper.
Vega next argues that the ALJ erred by not considering her subjective symptoms in his finding that Vega could return to prior relevant work. This contention lacks merit because the ALJ considered Vega’s testimony on her symptoms, as well as relevant medical evidence. Indeed, it was only after examining such evidence that the ALJ found Vega’s claims regarding the disabling effect of her symptoms “not totally credible.” Tr. at 20.
Vega further contends that the ALJ’s failure to list the specifics of her reported symptoms constituted legal error because he did not follow the policy set forth in SSR 96-8, which requires ALJs to consider all relevant evidence when assessing claimants’ residual functional capacities. However, a review of the ALJ’s findings shows that he listed the symptoms considered, evaluated those symptoms in light of Vega’s testimony and the medical evidence, and found that she could lift up to ten pounds, walk and stand occasionally, and sit up to six hours per day. SSR 96-8p requires ALJs to provide a “narrative discussion describing how the evidence *376supports each conclusion.” The ALJ’s findings met this standard.
Vega also argues that the ALJ erred in failing to make specific findings regarding the demands of Vega’s past work or the demands of similar positions in the national economy, as is required by SSR 82-62. But the ALJ cited a vocational expert’s testimony as to the physical and mental demands of Vega’s past work and considered Vega’s testimony as to the demands of her past work. In light of this evidence, the ALJ determined that Vega still retained the capacity to perform work, “sedentary and semi-skilled in nature, as generally performed for employers in the national economy.” Tr. at 19. This finding was substantially supported by the record.
Finally, Vega’s argument that the ALJ erred in misstating the disability standard is unavailing. Although the ALJ may have been imprecise when he stated that “there [was] no indication from [Vega’s] treating physician that her limitations would preclude all work activity,” Tr. at 19, this error does not require reversal. Tr. 19-20. The ALJ followed the proper five-step procedure in the disability analysis, and his finding that Vega was able to continue substantial gainful activity, which is the proper legal standard, is supported by the record.
III.
For the above-stated reasons, we will affirm the judgment and order of the District Court.
. The District Court had jurisdiction under 42 U.S.C. § 405(g) and 42 U.S.C. § 1383(c)(3). *374We have appellate jurisdiction pursuant to 28 U.S.C. § 1291.
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OPINION
SLOVITER, Circuit Judge.
Appellants Mark Cocchiola and Steven Venechanos challenge procedural aspects of their criminal trial in which they were convicted by a jury of conspiring to commit and committing multiple financial crimes. Cocchiola also challenges the sentence he received from the District Court. We will affirm.1
I.
Cocchiola and Venechanos (“defendants”) were key players in Suprema Specialties, Inc. (“Suprema”), a company that manufactured and processed cheese for sale to supermarkets, other retail establishments, and food service industry distributors. Suprema was a New York corporation with headquarters in Paterson, New Jersey, and with wholly-owned subsidiaries in several locations throughout the United States.
The superseding indictment details an intricate scheme in which defendants, along with others, inflated Suprema’s sales and misrepresented its inventory through, among other things, fraudulent accounting practices and mislabeled products. As a result, Suprema was able to borrow large sums of money from Fleet Bank (now Bank of America) and the other banks that participated in its “revolving loan agreements.” Venechanos App. at 57.
In addition, defendants made false representations to the Securities and Exchange Commission (“SEC”) in the annual and quarterly reports that Suprema filed. These misrepresentations were also passed on to investors and other members of the public through press releases. Lastly, in connection with a November 2001 Suprema stock offering, defendants made false representations to the SEC, some of which were disseminated to potential investors.
Approximately three months after this stock offering, Suprema filed a voluntary petition for reorganization under Chapter *37811 of the Bankruptcy Code, which was soon converted to a Chapter 7 liquidation. Bank of America filed documentation to prove that it lost over $75 million from the revolving loan agreement. Suprema’s investors were also victims of the scheme, as Suprema stock became almost worthless after the company liquidated.
The Government charged defendants with conspiracy, seventeen counts of bank fraud, nine counts of making false statements in reports required to be filed with the SEC, six counts of wire fraud, and four counts of mail fraud. Cocehiola was charged with an additional count of wire fraud.
Both defendants pled not guilty and proceeded to trial. The jury heard twenty-two days of testimony and convicted both defendants on all counts. The District Court sentenced Venechanos to 96 months imprisonment and Cocehiola to 180 months imprisonment. Defendants jointly challenge several rulings made at trial. Cocchiola challenges his sentence.2 Also, Venechanos asserts that he was deprived of a fair trial due to misconduct by the prosecutors.3
II.
Because we write primarily for defendants, who are well aware of the relevant facts, we refer to those facts only as necessary in discussing their contentions. Defendants contend that they were denied a fair trial when the District Court granted the Government’s motion in limine to exclude defendants’ expert witness, Frederick Martens, who was to testify on “(1) the structure of an organized crime family within the Italian mafia, (2) the elements of a mafia bust-out scheme, and (3) [a co-conspirator’s] connection to the Bonanno crime family.” Cocehiola App. at 119-20. Martens’ proposed testimony would have explained to the jury the way in which “bust-out” schemes commonly involve infiltration by criminals into “position[s] of authority within a legitimate company to implement a fraudulent billing and invoicing scheme” with the assistance of various shell companies, for the purpose of looting the assets of the company and driving it into bankruptcy. Cocehiola App. at 120. Defendants assert that this testimony would have been significant because the fraud that occurred at Suprema was a classic “bust-out” scheme perpetrated without the knowledge of Cocehiola and Venechanos. Defendants argued that expert testimony about “bust-out” schemes generally would be “helpful to the jury in terms of understanding” that defendants were ignorant of the wrongdoing at Suprema. Cocehiola App. at 157.
The Government filed a motion in limine to exclude Martens’ testimony, arguing that there was no evidentiary basis to connect the case to organized crime, and that, in any event, testimony about “bust-out” schemes was irrelevant to the ultimate issue, which was defendants’ knowledge of and participation in the fraudulent scheme. *379The Government further argued that even if Martens’ proposed testimony were relevant, its probative value would be substantially outweighed by its potential to confuse the jury.
The District Court granted the Government’s motion in limine, referring to Federal Rule of Evidence 702. It first determined that there was “insufficient evidence and, indeed, no admissible evidence which established] any relationship between the subject matter of [the] lawsuit and organized crime.” Cocchiola App. at 3-4. The District Court also concluded that Martens’ proposed testimony would not “assist the trier of fact to understand the evidence or to determine a fact in issue,” Cocchiola App. at 6, and that such testimony would likely confuse the jury.
Defendants argue that the District Court’s ruling was erroneous, and that the unjustness of the decision was enhanced when the Government “exploited [the] lack of evidence,” Cocchiola Br. at 25, by stating to the jury in its rebuttal summation, “[t]here’s ... no evidence really to tell us what a bust-out is.... ” Cocchiola App. at 360. The admission of expert testimony vel non falls within the broad discretion of the trial court, and we will reverse only for an abuse of discretion. See Pineda v. Ford Motor Co., 520 F.3d 237, 243 (3d Cir.2008).
We have no basis to disturb the District Court’s ruling. We agree with the District Court that a description of “bust-out” schemes generally would be unlikely to affect whether the jury believed defendants were either guilty participants in such a scheme or unwitting scapegoats. Also, the District Court’s concern with the potential for confusion that testimony about the mafia could engender was reasonable.
The argument that the Government exploited the lack of evidence on “bust-out” schemes is also unavailing because even without Martens’ testimony, defendants provided evidence and vehemently argued that defendants may have been victims of a “bust-out” scheme. For example, defendants made clear from the outset that they intended to prove that the fraud was hidden from them as much as it was hidden from the banks and investors. Defendants repeatedly questioned witnesses about the roles of others in the fraud. After hearing such evidence and argument, the jurors were qualified to determine, without the aid of expert testimony, whether the fraud was driven by outsiders and thus whether defendants’ theory of the case was credible.
Defendants next contend that the District Court abused its discretion in giving a Fioravanti instruction in response to a note from the jurors to the Court stating that, after deliberating for five days, they were “hopelessly deadlocked.”4 Cocchiola *380App. at 386. After receiving the note, the District Court summoned the parties to the courtroom to discuss their respective positions. Defense counsel moved for a mistrial. They argued that the note made clear “that further deliberations would not move [the jury’s] position[].” Cocchiola App. at 11.
Unsurprisingly, the Government disagreed. It suggested in lieu of declaring a mistrial that the Court give a supplemental Fioravanti charge, which the Court did. Even if defense counsels’ failure to object was not a waiver of their objections, see United States v. Graham, 758 F.2d 879, 883 (3d Cir.1985), defendants have no cause for complaint. The supplemental instruction the District Court gave was in essence identical to Third Circuit Model Criminal Jury Instruction § 9.05. That model instruction was drafted after Fioravanti and takes into consideration the concerns regarding jury coercion this court articulated in that case. See United States v. Brennan, 326 F.3d 176, 193 (3d Cir.2003) (holding that a supplemental instruction similar to that in the instant case did not “even [come] close to being coercive.”).
Both defendants challenge the District Court’s “willful blindness” instruction which allowed the jury to convict if it believed that the “evidence prove[d] beyond a reasonable doubt that a defendant deliberately closed his eyes to what would otherwise have been obvious to him.” Venechanos App. at 127. Defendants contend that there was insufficient evidence to warrant such an instruction and that the government’s theory was that defendants were guilty based on their direct knowledge of and participation in Suprema’s fraudulent activities. The defendants further assert that giving such an instruction erroneously “permits a civil standard of mental state such as negligence” to suffice for a criminal conviction. Venechanos Br. at 39. We disagree.
The Government did seek to prove actual knowledge by defendants, but it also presented evidence that could allow a jury to infer that defendants deliberately ignored the fraudulent dealings occurring at Suprema. The record before us thus contains sufficient evidence to warrant a willful ignorance instruction. Moreover, the Court’s instruction cautioned the jury not to convict based on a mens rea of negligence.5
In another claim that the District Court abused its discretion in connection with the jury instructions, defendants challenge the failure to give their requested instruction that if the jury found that they acted in subjective good faith, they must be found not guilty. The Government objected to this requested instruction, arguing that the instructions as a whole incorporated a description of the mens rea the jury was required to find in order to convict. The District Court agreed, finding that “in the context of this case” giving a good faith instruction would not “make [the necessary intent] any clearer, and in fact, [would] end[ ] up being pure surplus.” Supp.App. at 3728a-27. We agree.
In United States v. Leahy, we addressed this issue and held that “a district court *381does not abuse its discretion in denying a good faith instruction where the instructions given already contain a specific statement of the government’s burden to prove the elements of a ‘knowledge’ crime.” 445 F.3d 634, 651 (3d Cir.2006) (citing United States v. Gross, 961 F.2d 1097, 1102-03 (3d Cir.1992)). The jury instructions in this case defined “knowingly” — clarifying that acts done “because of ... ignorance or mistake” could not suffice for a conviction. Supp.App. at 4235-36. Because this issue was squarely presented in Leahy, the District Court’s refusal to provide a “good faith” instruction under governing precedent was not an abuse of discretion.
Next, Venechanos argues that he was deprived of a fair trial because the Government did not provide defendants material from the hard drive of one of the Government’s most important witnesses, Arthur Christensen. Christensen had deleted “anything that was personal in [his] computer” in mid-December 2001 — more than a month before the Government obtained access to his computer. Supp.App. at 1771. Venechanos argues that the prosecution had an affirmative obligation under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), to expend the resources necessary to “see what exactly had been deleted” so as to determine whether it contained exculpatory evidence.6 Venechanos Br. at 29. This contention lacks merit.
Brady and its progeny establish that a criminal defendant’s due process rights are violated when prosecutors fail to provide defense counsel with evidence that is material either to the defendant’s guilt or punishment. See Brady, 373 U.S. at 87, 83 5.Ct. 1194; see also United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976); United States v. Perdomo, 929 F.2d 967, 969-70 (3d Cir.1991). However, the requirement that the Government disclose the material evidence in its possession is fundamentally different from placing an affirmative obligation on prosecutors to ferret out any potentially exculpatory evidence. Cf. United States v. Graham, 484 F.3d 413, 416-18 (6th Cir.2007) (government has no duty to investigate evidence under control of its cooperating witness); United States v. Merlino, 349 F.3d 144, 154 (3d Cir.2003) (no duty to learn information possessed by governmental agencies with no involvement in investigation). Venechanos did not seek the personal materials deleted from Christensen’s computer before or during trial, and prosecutors had no reason to believe such materials would have been relevant to Venechanos’ guilt or punishment. Indeed, Christensen testified that all the deleted material was personal and Venechanos never explained the way in which this evidence may have been exculpatory. See, e.g., United States v. Rouse, 410 F.3d 1005, 1010 (8th Cir.2005) (holding that there is no Brady violation where “defendants can only speculate” that the withheld evidence contained exculpatory information). Under these circumstances, we decline to establish the novel proposition that Brady requires the Government to forensically reconstruct material deleted from a hard drive before prosecutors have access to the computer.
We turn to Coechiola’s challenge to the District Court’s calculation of his sentence. Cocchiola argues that the District Court erred in imposing an eighteen-level upward adjustment based on the finding that the victims’ monetary loss associated with *382his offenses amounted to over $80 million, and imposing a four-level upward adjustment based on the finding that he derived over $1,000,000 in gross proceeds from an offense which affected a financial institution.7
The District Court calculated the $80 million sum by adding Bank of America’s loss of $75,215,510 in the revolving loan agreement to the $43 million loss to investors after Suprema declared bankruptcy just months after the 2001 stock offering. The District Court stated that, because it could safely assume that at least $5 million of the loss to investors was caused by defendants’ unlawful conduct, it did not need “to engage in anything resembling analysis of loss causation as might be required in civil [10b — 5] litigation.” Supp. App. at 4417.
Cocchiola does not dispute the amount of loss, but rather the portion of that loss which is attributable to criminal acts. He argues “[ojnly money the banks lost from the portions of loans which were fraudulently obtained should have been used to determine the upward adjustment for loss under U.S.S.G. § 2Fl.l(b)(l)” and “only that portion of the loss which was ‘unlawfully taken’ may be used to determine the offense level.... ” Cocchiola Br. at 54, 57. We disagree.
The banks’ net loss was undisputedly over $75 million in the loan transaction, and there is evidence that the banks would not have provided loans to Suprema but for the fraudulent activity. Cocchiola asserts that “there was no evidence concerning how much of that $75 million actually involved money that had been ‘unlawfully taken.’” Cocchiola Br. at 52-53. Even assuming that Suprema entered into the revolving loan agreement before fraudulent activity began, the fraud went on for approximately eight years. Cocchiola offered no information by which the District Court could decipher what part of the $75 million was attributable to legitimately induced loans. Accordingly, under the Sentencing Guidelines, the District Court’s loss calculation was not error. See U.S.S.G. § 2F1.1 cmt. n. 9 (stating that, for offenses involving fraud, “the loss need not be determined with precision ---- [t]he court need only make a reasonable estimate of the loss, given the available information”) (emphasis added).
As for the $43 million securities loss, the District Court was correct to conclude that the 2001 stock offering would never have occurred but for the fraud. Mitchell Pinheiro, an executive at Janney Montgomery, the investment firm which underwrote that stock offering, testified that his firm “would not have performed the underwriting for” Suprema in 2001 had it known of the fraud. Supp.App. at 568.
Finally, Cocchiola argues that his sentence was too harsh because he did not derive more than $1 million in gross receipts from his offense, as some of the proceeds were not “attributable to the fraud.” Cocchiola Br. at 62. The definition of “gross receipts from the offense” under U.S.S.G. § 2F1.1(b)(7)(B) “applies ‘even if the defendant receives the million dollars in an indirect manner.’ ” United States v. Bennett, 161 F.3d 171, 192 (3d Cir.1998) (quoting United States v. Monus, 128 F.3d 376, 397 (6th Cir.1997)).
Cocchiola collected $2.5 million from the sale of Suprema stock, the price of which was enhanced by bank fraud. Moreover, he received a salary of $250,000 per year for fiscal years 1999-2001 and bonuses to*383taling over $1.5 million for those years, all from a company that was supported largely by illegal loans. Cocchiola seems to argue that the District Court was required to parse each of his gross receipts to determine its precise source. He cited and we found no decisions requiring as much.
III.
For the above-stated reasons, we will affirm the District Court’s judgments and sentence.
. The District Court had jurisdiction under 18 U.S.C. § 3231. This court has jurisdiction over the challenges to defendants’ convictions under 28 U.S.C. § 1291, and over Cocchiola’s challenge to his sentence under 18 U.S.C. § 3742(a).
. Venechanos states in his brief that he "joins with and incorporates each and every issue contained in the ... brief submitted on behalf of ... Cocehiola." Venechanos Br. at 48. However, he did not submit a transcript from his sentencing hearing, his PSR, or a reply brief with a discussion of sentencing. Assessing whether he may be entitled to re-sentencing is impossible on the record before us. See United States v. Harris, 932 F.2d 1529, 1533 (5th Cir.1991) (defendants cannot join arguments of co-defendants on appeal where determinations are fact specific as to each). Accordingly, we agree with the Government that Venechanos waived his ability to challenge his sentence.
. Cocehiola filed a letter with this court under Federal Rule of Appellate Procedure 28(i), in which he joined most of the assertions in Venechanos' brief. Cocehiola declined, however, to join Venechanos’ arguments concerning prosecutorial misconduct.
. In United States v. Fioravanti, this court held that a jury instruction is unduly coercive when it encourages jury members who are in the minority during deliberations to reconsider their views in light of their minority status. 412 F.2d 407, 416 (3d Cir.1969).
We instead urged district courts to employ the following charge:
It is your duty, as jurors, to consult with one another, and to deliberate with a view to reaching an agreement if you can do so without violence to individual judgment. Each of you must decide the case for yourself, but do so only after an impartial consideration of the evidence in the case with your fellow jurors. In the course of your deliberations, do not hesitate to re-examine your own views, and change your opinion, if convinced it is erroneous. But do not surrender your honest conviction as to the weight or effect of evidence solely because of the opinion of your fellow jurors, or for the mere purpose of returning a verdict.
Id. at 420 n. 32 (quoting W. Mathes & E. Devitt, Federal Jury Practice and Instructions, § 79.01 (1965)).
. The instructions included the following:
[Y]ou may not find that a defendant knew that these representations about Suprema were false if you find only that the defendant ... should have known that these representations were false or that a reasonable person would have known of a high probability of this fact. It is not enough that a defendant may have been stupid or foolish or may have acted out of inadvertance or accident. You must find that the defendant ... was actually aware of a high probability that these representations about Suprema were false, deliberately avoided learning about it and did not actually believe they were true.
Venechanos App. at 128
. Venechanos complains that the Government's failure to disclose whatever evidence was deleted from Christensen’s hard drive hindered his ability to cross examine Christensen. But this is unconvincing because Venechanos’ counsel questioned Christensen at length about deleting files from his hard drive.
. The District Court sentenced both defendants under the 1998 version of the Guidelines under this court's decision in United States v. Bertoli, 40 F.3d 1384, 1404 (3d Cir. 1994). That decision is not at issue on this appeal. Accordingly, all citations to the Guidelines in this opinion are to the 1998 Manual.
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MEMORANDUM **
Daniel Martinez-Hernandez, a native and citizen of Mexico, petitions pro se for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration judge’s (“IJ”) decision denying his application for cancellation of removal. Our jurisdiction is governed by 8 U.S.C. § 1252. We review de novo constitutional claims, Ram v. INS, 243 F.3d 510, 516 (9th Cir.2001), and we dismiss in part and deny in part the petition for review.
We lack jurisdiction to consider any contention regarding the IJ’s determination that Martinez-Hernandez failed to establish eligibility for cancellation of removal, 8 U.S.C. § 1229b(b), because Martinez-Hernandez did not challenge this determination before the BIA, see Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir.2004).
Martinez-Hernandez’ equal protection claim is unpersuasive.
PETITION FOR REVIEW DISMISSED in part; DENIED in part.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Johny Franky Longdong, a native and citizen of Indonesia, petitions for review of the Board of Immigration Appeals’ order dismissing his appeal from an immigration judge’s decision denying his application for asylum and withholding of removal. We have jurisdiction under 8 U.S.C. § 1252. We review de novo questions of law and review for substantial evidence factual findings. See Husyev v. Mukasey, 528 F.3d 1172, 1177 (9th Cir.2008). We deny the petition for review.
The record does not compel the conclusion that changed or extraordinary circumstances excused the untimely filing of Longdong’s asylum application. See 8 C.F.R. § 1208.4(a)(4), (5). We reject Longdong’s equal protection and due pro*932cess contentions regarding the one-year time bar. See Hernandez-Mezquita v. Ashcroft, 293 F.3d 1161, 1163-65 (9th Cir.2002) (rejecting an equal protection and due process challenge to statutory time limitation where such limitation served rational purpose). Therefore, we deny the petition as to Longdong’s asylum claim.
Substantial evidence supports the agency’s finding that Longdong failed to establish he suffered harm that rose to the level of past persecution on account of his Christian religion. See Nagoulko v. INS, 333 F.3d 1012, 1016-18 (9th Cir. 2003). 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, Longdong did not demonstrate a sufficiently individualized risk of persecution necessary to establish a clear probability of future persecution. See Hoxha v. Ashcroft, 319 F.3d at 1179,1184-85 (9th Cir.2003). Lastly, the record does not compel the conclusion that Longdong established a pattern or practice of persecution against Christians in Indonesia. See Wakkary v. Holder, 558 F.3d 1049, 1061 (9th Cir.2009). Accordingly, Long-dong’s withholding of removal claim fails.
PETITION FOR REVIEW DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Bidyut and Diana Bhattacharyya petition pro se for review of tax court’s decision, following a bench trial, upholding the Internal Revenue Service Commissioner’s determination of a deficiency for tax year 2000 and of additions to tax. We have jurisdiction under 26 U.S.C. § 7482(a)(1). We review the tax court’s findings of fact for clear error and its conclusions of law de novo. Hardy v. Comm’r, 181 F.3d 1002, 1004 (9th Cir.1999). We deny the petition for review.
The tax court correctly determined the Bhattacharyyas’ income, deductions, and subsequent tax deficiency based on party stipulations and other evidence submitted during trial, which the Bhattacharyyas’ failed to rebut. See id., 181 F.3d at 1004 (“If the Commissioner introduces some evidence that the taxpayer received unreported income, the burden shifts to the taxpayer to show by a preponderance of the evidence that the deficiency was arbitrary or erroneous.”).
Contrary to the Bhattacharyyas’ contentions, opposing counsel’s remarks were routine statements made in the course of litigation and did not provide a basis for the tax court to remove the attorney from the proceedings.
*935The Bhattacharyyas’ remaining contentions are unpersuasive.
PETITION FOR REVIEW DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3.
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ON MOTION
SCHALL, Circuit Judge.
ORDER
Appellants Dorothy L. Biery, et al. move to reactivate this appeal. The United *173States opposes and moves to dismiss the appeal for lack of jurisdiction. The appellants oppose. The United States replies.
In cases that were later consolidated, the plaintiffs sued the United States alleging that they were entitled to compensation for an unlawful taking. On motions for summary judgment, the United States Court of Federal Claims dismissed one of Biery’s claims, dismissed the claims of the other appellants, and allowed the other plaintiffs’ claims to proceed. Biery appealed. On September 30, 2009, this court deactivated this appeal pursuant to Fed. R.App. P. 4(a)(4), due to possible pending motions in the trial court.
The United States contends that because there are pending claims before the Court of Federal Claims, and because the Court of Federal Claims did not enter a Rule 54(b) judgment on the decided claims, the appeal is premature. We agree. Because there are pending claims, there is no final judgment and this appeal is premature. See Nystrom v. Trex Co., 339 F.3d 1347, 1350 (Fed.Cir.2003) (“If a case is not fully adjudicated as to all claims for all parties and there is no express determination that there is no just reason for delay or express direction for entry of judgment as to fewer than all of the parties or claims, there is no final decision ... and therefore no jurisdiction”). Any adversely affected party may, of course, file a notice of appeal after the Court of Federal claims disposes of all claims and enters final judgment.
Accordingly,
IT IS ORDERED THAT:
(1)The appellants’ motion to reactivate this appeal is moot.
(2) The United States’ motion to dismiss is granted.
(3) Each side shall bear its own costs.
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