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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 **
Juana Jimenez and Miguel Jimenez-Rojas, natives and citizens of Mexico, petition for review of the Board of Immigration Appeals’ order summarily affirming an immigration judge’s (“IJ”) removal order (No. 06-72051), and the former Legalization Appeals Unit’s (“LAU”) order dismissing Jimenez-Rojas’ appeal from the denial of his Special Agricultural Worker (“SAW”) application (No. 06-72054). Our jurisdiction is governed by 8 U.S.C. § 1252. We review for abuse of discretion the denial of a SAW application. Perez-Martin v. Ashcroft, 894 F.3d 752, 758 (9th Cir.2005). We dismiss the petition for review in No. 06-72051 and deny the petition for review in No. 06-72054.
We lack jurisdiction to review the agency’s discretionary determination that petitioners failed to establish exceptional and extremely unusual hardship. See 8 U.S.C. § 1252(a)(2)(B)(i); see also Martinez-Ro-sas v. Gonzales, 424 F.3d 926, 930 (9th Cir.2005).
We also lack jurisdiction over petitioners’ remaining contentions in No. 06-72051, which are not colorable. See Mendez-Castro v. Mukasey, 552 F.3d 975, 978 (9th Cir.2009) (any challenge to an IJ’s discretionary determination must present a colorable claim).
The LAU did not abuse its discretion in dismissing Jimenez-Rojas’ SAW appeal where Jimenez-Rojas provided insufficient evidence of qualifying employment. See Perez-Martin, 394 F.3d at 759-60 (to overcome derogatory government evidence, an applicant must provide enough evidence to show qualifying employment “as a matter of just and reasonable inference”) (quoting 8 U.S.C. § 1160(b)(3)(B)(iii)).
No. 06-72051: PETITION FOR REVIEW DISMISSED.
No. 06-72054: 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 **
Rodolfo Garcia-Perez appeals from his *953guilty-plea conviction and 87-month sentence imposed for being an alien found in the United States following deportation in violation of 8 U.S.C. § 1826.
Pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), Garcia-Perez’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.
The panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).
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ORDER*
STEPHANIE K. SEYMOUR, Circuit Judge.
Ms. Shirley Rollow seeks a Certificate of Appealability (COA) to overturn the district court’s denial of her petition under 28 U.S.C. § 2255. For the reasons that follow, we deny her motion and dismiss the appeal.
*967Ms. Rollow was convicted by jury of conspiring to possess and distribute a listed chemical knowing that it would be manufactured into a controlled substance in violation of 21 U.S.C. § 841(c)(2), and of structuring transactions to evade reporting requirements in violation of 31 U.S.C. § 5324(a)(3). The convictions stem from allegations that Ms. Rollow participated in a complex scheme to distribute pseu-doephedrine, a precursor to methamphetamine, within the United States.
Ms. Rollow received an initial sentence of 180 months’ imprisonment, followed by three years of supervised release. On appeal, however, we vacated that sentence and remanded to the district court for re-sentencing in light of the Supreme Court’s decision in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). See United States v. Rollow, 146 Fed.Appx. 290, 294-95 (10th Cir.2005). On remand, the district court imposed a reduced sentence of 160 months’ imprisonment followed by three years of supervised release. On appeal, we affirmed the revised sentence, concluding Ms. Rollow’s sentence “was based on a quantity of drugs for which she was found responsible by a jury without any offer of proof to the contrary; her sentence was enhanced through discretionary judicial fact-finding by a preponderance of the evidence. Ms. Rollow received all the protections the constitution affords.” United States v. Rollow, 218 Fed.Appx. 790, 794 (10th Cir.2007).
Ms. Rollow then filed a petition pursuant to 28 U.S.C. § 2255, alleging
(1) during trial proceedings there arose certain issues which ... should have been addressed ..., counsel should have requested a[m]istrial; ...
(2) counsel failed to mitigate and challenge statements that her codefendants made against her which implicated and exaggerated her role in the offense, ...
(3) counsel failed to investigate all aspects and circumstances of the case, ...
(4) counsel failed to aggressively invoke any of the legal principles stated in recent case law, specifically proper attribution of drug amounts and the requisite preponderance of proof as far as the amount of drugs for the purpose of sentencing; ...
(5) counsel failed to seek the requisite preponderance of the proof as to the amount of involvement that the movant actually played in the offense and as to the actual amount of drugs or whether any drugs should have been attributed to her.
See June 1, 2009, 2009 WL 1531687, District Court Order, at 2 (quotations and brackets omitted). The district court denied the petition for relief, reasoning that Ms. Rollow’s ineffective assistance of counsel claims contained only “conclusory allegations” insufficient to sustain a viable ineffective assistance claim, and that her sentencing claims were procedurally barred. Id. 3-4.
On appeal, Ms. Rollow seeks a COA on three issues. First, she contends the district court erred in denying her § 2255 motion without holding an evidentiary hearing. Second, she asserts she was denied effective assistance of counsel. Third, she argues that she was denied due process and equal protection of the law by the district court’s failure to apply the parsimony principle mandated by 18 U.S.C. § 3553.
A COA can issue only “if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “A petitioner satisfies this standard by demonstrating that jurists of reason could disagree with the district court’s resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.” Mil*968ler-El v. Cockrell, 587 U.S. 322, 327, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). Having undertaken a thorough review of Ms. Rollow’s appellate pleadings, the district court’s order, and the entire record before us pursuant to the framework set out by the Supreme Court in Miller-El, we conclude that Ms. Rollow is not entitled to a COA because the district court’s resolution of her § 2255 petition is not reasonably subject to debate.
Turning first to Ms. Rollow’s ineffective assistance claim, we note that to succeed she must demonstrate that her attorney’s performance was deficient and that the deficient performance prejudiced her defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Ms. Rollow bears the burden of establishing both components. Smith v. Robbins, 528 U.S. 259, 285-86, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000). A review of her § 2255 petition, although rife with conclusory allegations of deficient representation, reveals no factual basis for a viable ineffective assistance of counsel claim. Although she contends that “counsel procedurally defaulting (sic) on issues which should have been raised/objected to.... [C]ounsel failed to mitigate and or challenge statements.... [Cjounsel failed to investigate and challenge.... [Cjounsel failed to hold the government to the requisite preponderance of the proof,” Aplt. Br. at 17, Ms. Rollow neglects to articulate a single fact in support of these contentions. Thus, her ineffective assistance claim has no support. See United States v. Fisher, 38 F.3d 1144, 1147 (10th Cir.1994).
Second, we need not reach the merits of Ms. Rollow’s challenges to the district court’s application of the guidelines because these issues were available but were not raised on direct appeal. They are therefore proeedurally barred without a showing of cause and prejudice. See United States v. Mora, 293 F.3d 1213, 1216 (10th Cir.2002).
Finally, because Ms. Rollow’s motion could be properly and conclusively resolved on the basis of the record alone, the district court did not err in refusing to hold an evidentiary hearing. Accordingly, we DENY Ms. Rollow’s request for a COA, DENY her motion to proceed in forma pauperis, and DISMISS this appeal.
This order is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with 10th Cir. R. 32.1 and 10th Cir. R. 32.1.
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ORDER AND JUDGMENT*
PER CURIAM.
Before us is the government’s motion to enforce Pablo Rene Bucio’s plea agreement to waive his right to appeal one count of his conviction and sentence. We grant the motion.
At a plea hearing, Mr. Bucio pleaded guilty without a plea agreement to conspiracy to distribute marijuana (count 4); at*14tempting to manufacture, and possess with intent to distribute, marijuana (count five); possessing firearms while being a user of a controlled substance (count seven); maintaining a residence for the purpose of drag trafficking (count eight); and possessing marijuana with intent to distribute it (count nine). At the conclusion of the plea hearing, Mr. Bucio entered into a plea agreement under which he also agreed to plead guilty to one count of conspiracy to distribute methamphetamine (count one); in return, the government agreed to dismiss a count for using and possessing a firearm during and in relation to drug trafficking offenses. The plea agreement included an appeal waiver, whereby Mr. Bucio “knowingly and voluntarily waive[d] any right to appeal or collaterally attack any matter in connection with this prosecution, [his] conviction, or the components of the sentence to be imposed.” Mot. to Enforce, Attach, at A-ll.
Prior to sentencing, Mr. Bucio retained new counsel and moved to withdraw his guilty pleas. He asserted that his prior counsel threatened and coerced him into pleading guilty. He also asserted that his plea was not knowing and voluntary because he had been ignorant of the range of punishment he was facing when he pleaded guilty. The district court denied the motion to withdraw his plea, finding that Mr. Bucio’s stated reasons were not credible, given the thorough plea colloquy. At sentencing, the government presented evidence concerning the sentencing factors. The district court concluded that the advisory sentencing guidelines range was 262 to 327 months, and after consideration of the factors in 18 U.S.C. § 3553(a), sentenced Mr. Bucio to 327 months’ imprisonment on count one, to be served concurrent with 60 months on each of counts four, five and nine; 120 months on count seven; and 240 months on count eight.
Mr. Bucio has appealed. According to his docketing statement, he seeks to appeal the denial of his motion to withdraw his plea; denial of his speedy trial rights; denial of his right to counsel; denial of grand jury transcripts; and the reasonableness of his sentence.
Validity of Appeal Waivers. Pursuant to United States v. Hahn, 359 F.3d 1315 (10th Cir.2004) (en banc) (per curiam), the United States has moved to enforce the appeal waiver in his plea agreement as it pertains to count one. Under Hahn, we consider: “(1) whether the disputed appeal falls within the scope of the waiver of appellate rights; (2) whether the defendant knowingly and voluntarily waived his appellate rights; and (3) whether enforcing the waiver would result in a miscarriage of justice.” Id. at 1325. A miscarriage of justice occurs when (1) the district court relies on an impermissible factor such as race; (2) ineffective assistance of counsel in connection with the negotiation of the waiver renders it invalid; (3) the sentence exceeds the statutory maximum; or (4) the waiver is otherwise unlawful, i.e., the error seriously affects the fairness, integrity, or public reputation of judicial proceedings. Id. at 1327. Mr. Bucio concedes that his appeal falls within the scope of his appeal waiver. Resp. at 2.
Knowing and Voluntary. Mr. Bucio contends that his appeal waiver was not knowing and voluntary because he was abandoned and coerced by his trial counsel into pleading guilty, including agreeing to an appellate waiver. Id. at 2-3. It is Mr. Bucio’s burden to demonstrate that the waiver was not knowing and voluntary. Hahn, 359 F.3d at 1329.
We look primarily to the plea agreement and the plea colloquy to assess the voluntariness of the waiver. See id. at 1325. In his plea agreement, Mr. Bucio stated that he was knowingly and voluntarily agreeing *15to waive his right to appeal any matter in connection with his prosecution, conviction and sentence. Mot. to Enforce, Attach, at A-ll. At his plea colloquy, the district court asked him if he understood he had to answer several questions so the court could decide if his plea was knowing and voluntary and if he understood that he was answering these questions under oath, subject to perjury if he answered falsely. Id. at A-15 to 16. Mr. Bucio answered yes to both questions. Id. Mr. Bucio testified that he had discussed his plea with his counsel, including the rights he was waiving and the consequences of a guilty plea, and that he was satisfied with his counsel’s representation in this regard. Id. at A-17 to 18. He testified that he understood he was giving up the right to a speedy public trial and related rights. Id. at A-24 to 27. He testified he understood he would be sentenced to not less than ten years and up to life in prison. Id. at A-19 to 20; A-28. He testified he understood how the sentencing guidelines might apply to his case, and that he might receive the same sentence whether he pleaded guilty or went to trial. Id. at A-27 to 29. Mr. Bucio also testified that he understood he was waiving his appeal rights, A-33, including his right to challenge any of the decisions the court had made in regard to his prosecution, conviction and sentence, unless the sentence imposed exceeded the statutory maximum, id. at A-33 to 35. Mr. Bucio testified that no one had forced or threatened him to get him to accept the plea, and that he was making it freely and voluntarily and only because he was guilty as charged. Id. at A-38 to 39; A-42. Thus, we conclude that both Mr. Bucio’s plea agreement and his plea colloquy demonstrate that he was informed of the appeal waiver and that he knowingly and voluntarily accepted it.
It appears that Mr. Bucio is implicitly arguing that he received ineffective assistance of counsel in connection with the negotiation of the waiver. If true, this argument would satisfy the requirements for establishing a miscarriage of justice. See Hahn, 359 F.3d at 1327. But we do not address such an argument at this time because ineffective-assistance claims generally should be raised in a collateral proceeding rather than on direct appeal. See United States v. Porter, 405 F.3d 1136, 1144 (10th Cir.2005). “This rule applies even where a defendant seeks to invalidate an appellate waiver based on ineffective assistance of counsel.” Id.
Miscarriage of Justice. Mr. Bucio also contends that it would be a miscarriage of justice to enforce the appeal waiver as to count one because any appellate relief he might receive as to counts four, five, seven, eight, and nine would have no practical effect on his sentence, given that his 327-month sentence on count one runs concurrent to the other sentences. This argument, however, does not demonstrate that any of the four miscarriage-of-justiee factors, listed above, are present. The district court did not rely on an impermissible factor such as race; the sentence did not exceed the statutory maximum; and the waiver is not otherwise unlawful. See Hahn, 359 F.3d at 1327. As to this “otherwise unlawful,” factor, we do not look to “whether another aspect of the proceeding may have involved legal error,” but look only “to whether the ivaiver [itself] is otherwise unlawful.” United States v. Shockey, 538 F.3d 1355, 1357 (10th Cir.2008) (emphasis in original, quotation omitted). As noted, if Mr. Bucio wishes to assert that he received ineffective assistance of counsel in connection with the negotiation of the waiver, he may do so in a collateral motion. The four miscarriage-of-justice factors are exclusive and an appellate waiver will not result in a miscarriage of justice unless one of these four situations *16occurs. Id. Accordingly, we conclude that it would not be a miscarriage of justice to enforce the appeal waiver as to count one.
The motion to enforce the appeal waiver is GRANTED, and this appeal is DISMISSED as to count one.
This panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R.App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R.App. P. 32.1 and 10th Cir. R. 32.1.
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ON MOTION
ORDER
Sami Labs Limited moves without opposition to withdraw its appeal.
Upon consideration thereof,
IT IS ORDERED THAT:
(1) The motion is granted.
(2) Each side shall bear its own costs.
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OPINION
PER CURIAM.
Petitioner Manjit Singh Dhoot, a native and citizen of India, petitions for review of the Board of Immigration Appeals’ (“BIA”) orders denying his motions to reopen. For the following reasons, we will deny his petition.
Dhoot arrived in the United States in January 2003 and overstayed his tourist visa. The Department of Homeland Security issued him a notice to appear in February 2004 charging him with removal. Dhoot appeared before an Immigration Judge (“IJ”), conceded removability, and applied for asylum, withholding of removal, and for relief under the Convention Against Torture. The IJ found Dhoot’s asylum claims implausible and ordered him deported to India. On December 29, 2005, the BIA dismissed Dhoot’s appeal and we subsequently denied his petition for review. Dhoot v. Gonzales, 251 Fed.Appx. 126 (3d Cir.2007) (unpublished).
On February 22, 2008, Dhoot filed a motion to reopen with the BIA based on changed country conditions and his marriage to a U.S. citizen. In support of his motion, he submitted the 2006 and 2007 State Department Human Rights Reports for India and two affidavits which claim that police in India are actively looking for him and have harassed and beaten his father. Dhoot also submitted a copy of his marriage certificate and his wife’s permanent resident card. On May 28, 2008, the BIA denied the motion to reopen, noting that Dhoot did not show a nexus between changed country conditions and his asylum claims and that the affidavits did not state why the police were looking for him. The BIA also erroneously held that Dhoot failed to provide evidence of his marriage to a U.S. citizen. Dhoot filed a timely petition for review in this Court.
On June 9, 2008, Dhoot filed a motion to reconsider and another motion to reopen with the BIA. The BIA granted the motion for reconsideration but again denied the motion to reopen as untimely. Specifically, the BIA held that Dhoot’s marriage to a citizen did not qualify as an exception to the 90-day time limitation governing motions to reopen. Dhoot filed á timely petition for review and we consolidated his two petitions.
We have jurisdiction under 8 U.S.C. § 1252. We revifew the denial of a motion to reopen for an abuse of discretion. Filja v. Gonzales, 447 F.3d 241, 251 (3d Cir.2006). Under this standard, we may reverse the BIA’s decision only if it is “arbitrary, irrational, or contrary to law.” Sevoian v. Ashcroft, 290 F.3d 166, 174 (3d Cir.2002). We will uphold the BIA’s factual determinations so long as “they are ‘supported by reasonable, substantial, and probative evidence on the record considered as a whole.’ ” Liu v. Att’y Gen., 555 F.3d 145, 148 (3d Cir.2009) (quoting INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992)).
Petitioners are generally required to file a motion to reopen with the BIA “no later than 90 days after the date on which the final administrative decision was rendered.” 8 C.F.R. § 1003.2(c)(2). The deadline does not apply to motions that *388rely on evidence of “changed circumstances arising in the country of nationality ... if such evidence is material and was not available and could not have been discovered or presented at the previous hearing.” 8 C.F.R. § 1003.2(c)(3)(ii). Here, Dhoot did not file the motion to reopen within the 90-day window; therefore, he must show changed country conditions in India in order to excuse the untimeliness.
We agree with the BIA and the Government that Dhoot has failed to show that any change in country conditions in India is material to his asylum application. While the Human Rights Reports detail human rights problems in India, Dhoot failed to show how those generalized conditions affect his likelihood of future persecution. See Shardar v. Att’y Gen., 503 F.3d 308, 316 (3d Cir.2007) (an asylum applicant must make a showing of a particularized threat of persecution). Further, the affidavits Dhoot submitted do not indicate why police might be interested in him or his father, and thus they do not support a well-founded fear of future persecution on a statutorily recognized ground. Finally, with respect to Dhoot’s adjustment of status claim, the regulations do not provide an exception to the 90-day time limit on account of the ability to adjust status. Therefore, the BIA did not abuse its discretion in denying the motion based on Dhoot’s recent marriage to a U.S. citizen.
For the foregoing reasons, we will deny the petition for review.
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MEMORANDUM **
In these consolidated petitions for review, Alfredo Cambrón Vargas and Inez Enriquez Torres, husband and wife and natives and citizens of Mexico, petition for review of the Board of Immigration Appeals’ (“BIA”) orders denying their two motions to reopen removal proceedings. We have jurisdiction under 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reopen, and de novo claims of due process violations, including claims of ineffective assistance of counsel in immigration proceedings. Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir.2005). We deny the petitions for review.
With respect to the BIA’s March 29, 2006 order, the BIA acted within its broad discretion in determining that the evidence presented with petitioners’ motion to reopen was insufficient to warrant reopening. See Singh v. INS, 295 F.3d 1037, 1039 (9th Cir.2002) (BIA’s denial of a motion to reopen shall be reversed only if it is “arbitrary, irrational, or contrary to law”).
With respect to the BIA’s January 30, 2006 order, the BIA acted within its discretion in denying petitioners’ motion to reopen alleging ineffective assistance of counsel because petitioners presented insufficient evidence 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 a petitioner must demonstrate prejudice).
PETITIONS 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 **
Juana Jimenez and Miguel Jimenez-Rojas, natives and citizens of Mexico, petition for review of the Board of Immigration Appeals’ order summarily affirming an immigration judge’s (“IJ”) removal order (No. 06-72051), and the former Legalization Appeals Unit’s (“LAU”) order dismissing Jimenez-Rojas’ appeal from the denial of his Special Agricultural Worker (“SAW”) application (No. 06-72054). Our jurisdiction is governed by 8 U.S.C. § 1252. We review for abuse of discretion the denial of a SAW application. Perez-Martin v. Ashcroft, 894 F.3d 752, 758 (9th Cir.2005). We dismiss the petition for review in No. 06-72051 and deny the petition for review in No. 06-72054.
We lack jurisdiction to review the agency’s discretionary determination that petitioners failed to establish exceptional and extremely unusual hardship. See 8 U.S.C. § 1252(a)(2)(B)(i); see also Martinez-Ro-sas v. Gonzales, 424 F.3d 926, 930 (9th Cir.2005).
We also lack jurisdiction over petitioners’ remaining contentions in No. 06-72051, which are not colorable. See Mendez-Castro v. Mukasey, 552 F.3d 975, 978 (9th Cir.2009) (any challenge to an IJ’s discretionary determination must present a colorable claim).
The LAU did not abuse its discretion in dismissing Jimenez-Rojas’ SAW appeal where Jimenez-Rojas provided insufficient evidence of qualifying employment. See Perez-Martin, 394 F.3d at 759-60 (to overcome derogatory government evidence, an applicant must provide enough evidence to show qualifying employment “as a matter of just and reasonable inference”) (quoting 8 U.S.C. § 1160(b)(3)(B)(iii)).
No. 06-72051: PETITION FOR REVIEW DISMISSED.
No. 06-72054: 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 **
Rodolfo Garcia-Perez appeals from his *953guilty-plea conviction and 87-month sentence imposed for being an alien found in the United States following deportation in violation of 8 U.S.C. § 1826.
Pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), Garcia-Perez’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.
The panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).
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ORDER AND JUDGMENT *
MONROE G. McKAY, Circuit Judge.
After examining Plaintiff’s brief and the appellate record, this panel has deter*969mined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R.App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.
In this case Plaintiff, a pro se litigant, brought a civil suit for conspiracy against various persons involved with the determination of her parental rights. As part of the suit Plaintiff submitted a motion to proceed in forma pauperis. In its first order considering the motion, the district court correctly noted it “has discretion in deciding whether or not to grant a civil litigant permission to proceed IFP.” Brewer v. City of Overland Park Police Dept., 24 Fed.Appx. 977, 979 (10th Cir.2002) (citing 28 U.S.C. § 1915(a)). The court then noted that the IFP motion contained almost no information that would allow it to properly review Plaintiffs expenses and income; the court then ordered Plaintiff to submit several types of financial documents to supplement her motion by March 4, 2009. On March 9, 2009, following Plaintiffs failure to provide any of the ordered documentation, the district court entered an order denying IFP status and requiring Plaintiff to pay the filing fee within twenty days. Finally, on April 8, 2009, the district court dismissed the case without prejudice for failure to pay the filing fee. Plaintiff appeals the district court’s denial of IFP status, which we review for abuse of discretion. Lister v. Dep’t of Treasury, 408 F.3d 1309, 1312 (10th Cir.2005).
After careful review of Plaintiffs filings, the district court’s orders, and the record on appeal, we conclude that the district court did not abuse its discretion in denying IFP status and dismissing the complaint. For substantially the same reasons set forth in the district court’s orders, we AFFIRM. Additionally, Plaintiff has asked to proceed IFP on appeal. “[I]n order to succeed on a motion to proceed IFP, the movant must show a financial inability to pay the required filing fees, as well as the existence of a reasoned, non-frivolous argument on the law and facts.... ” Id. We agree with the district court that the documentation Plaintiff has provided does not indicate an inability to pay the required filing fee. Accordingly, we DENY Plaintiffs motion to proceed without prepayment of fees.
This order and judgment is not binding proce-dent, except under the doctrines of law of the *969case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R.App. P. 32.1 and 10th Cir. R. 32.1.
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ORDER AND JUDGMENT*
PER CURIAM.
Before us is the government’s motion to enforce Pablo Rene Bucio’s plea agreement to waive his right to appeal one count of his conviction and sentence. We grant the motion.
At a plea hearing, Mr. Bucio pleaded guilty without a plea agreement to conspiracy to distribute marijuana (count 4); at*14tempting to manufacture, and possess with intent to distribute, marijuana (count five); possessing firearms while being a user of a controlled substance (count seven); maintaining a residence for the purpose of drag trafficking (count eight); and possessing marijuana with intent to distribute it (count nine). At the conclusion of the plea hearing, Mr. Bucio entered into a plea agreement under which he also agreed to plead guilty to one count of conspiracy to distribute methamphetamine (count one); in return, the government agreed to dismiss a count for using and possessing a firearm during and in relation to drug trafficking offenses. The plea agreement included an appeal waiver, whereby Mr. Bucio “knowingly and voluntarily waive[d] any right to appeal or collaterally attack any matter in connection with this prosecution, [his] conviction, or the components of the sentence to be imposed.” Mot. to Enforce, Attach, at A-ll.
Prior to sentencing, Mr. Bucio retained new counsel and moved to withdraw his guilty pleas. He asserted that his prior counsel threatened and coerced him into pleading guilty. He also asserted that his plea was not knowing and voluntary because he had been ignorant of the range of punishment he was facing when he pleaded guilty. The district court denied the motion to withdraw his plea, finding that Mr. Bucio’s stated reasons were not credible, given the thorough plea colloquy. At sentencing, the government presented evidence concerning the sentencing factors. The district court concluded that the advisory sentencing guidelines range was 262 to 327 months, and after consideration of the factors in 18 U.S.C. § 3553(a), sentenced Mr. Bucio to 327 months’ imprisonment on count one, to be served concurrent with 60 months on each of counts four, five and nine; 120 months on count seven; and 240 months on count eight.
Mr. Bucio has appealed. According to his docketing statement, he seeks to appeal the denial of his motion to withdraw his plea; denial of his speedy trial rights; denial of his right to counsel; denial of grand jury transcripts; and the reasonableness of his sentence.
Validity of Appeal Waivers. Pursuant to United States v. Hahn, 359 F.3d 1315 (10th Cir.2004) (en banc) (per curiam), the United States has moved to enforce the appeal waiver in his plea agreement as it pertains to count one. Under Hahn, we consider: “(1) whether the disputed appeal falls within the scope of the waiver of appellate rights; (2) whether the defendant knowingly and voluntarily waived his appellate rights; and (3) whether enforcing the waiver would result in a miscarriage of justice.” Id. at 1325. A miscarriage of justice occurs when (1) the district court relies on an impermissible factor such as race; (2) ineffective assistance of counsel in connection with the negotiation of the waiver renders it invalid; (3) the sentence exceeds the statutory maximum; or (4) the waiver is otherwise unlawful, i.e., the error seriously affects the fairness, integrity, or public reputation of judicial proceedings. Id. at 1327. Mr. Bucio concedes that his appeal falls within the scope of his appeal waiver. Resp. at 2.
Knowing and Voluntary. Mr. Bucio contends that his appeal waiver was not knowing and voluntary because he was abandoned and coerced by his trial counsel into pleading guilty, including agreeing to an appellate waiver. Id. at 2-3. It is Mr. Bucio’s burden to demonstrate that the waiver was not knowing and voluntary. Hahn, 359 F.3d at 1329.
We look primarily to the plea agreement and the plea colloquy to assess the voluntariness of the waiver. See id. at 1325. In his plea agreement, Mr. Bucio stated that he was knowingly and voluntarily agreeing *15to waive his right to appeal any matter in connection with his prosecution, conviction and sentence. Mot. to Enforce, Attach, at A-ll. At his plea colloquy, the district court asked him if he understood he had to answer several questions so the court could decide if his plea was knowing and voluntary and if he understood that he was answering these questions under oath, subject to perjury if he answered falsely. Id. at A-15 to 16. Mr. Bucio answered yes to both questions. Id. Mr. Bucio testified that he had discussed his plea with his counsel, including the rights he was waiving and the consequences of a guilty plea, and that he was satisfied with his counsel’s representation in this regard. Id. at A-17 to 18. He testified that he understood he was giving up the right to a speedy public trial and related rights. Id. at A-24 to 27. He testified he understood he would be sentenced to not less than ten years and up to life in prison. Id. at A-19 to 20; A-28. He testified he understood how the sentencing guidelines might apply to his case, and that he might receive the same sentence whether he pleaded guilty or went to trial. Id. at A-27 to 29. Mr. Bucio also testified that he understood he was waiving his appeal rights, A-33, including his right to challenge any of the decisions the court had made in regard to his prosecution, conviction and sentence, unless the sentence imposed exceeded the statutory maximum, id. at A-33 to 35. Mr. Bucio testified that no one had forced or threatened him to get him to accept the plea, and that he was making it freely and voluntarily and only because he was guilty as charged. Id. at A-38 to 39; A-42. Thus, we conclude that both Mr. Bucio’s plea agreement and his plea colloquy demonstrate that he was informed of the appeal waiver and that he knowingly and voluntarily accepted it.
It appears that Mr. Bucio is implicitly arguing that he received ineffective assistance of counsel in connection with the negotiation of the waiver. If true, this argument would satisfy the requirements for establishing a miscarriage of justice. See Hahn, 359 F.3d at 1327. But we do not address such an argument at this time because ineffective-assistance claims generally should be raised in a collateral proceeding rather than on direct appeal. See United States v. Porter, 405 F.3d 1136, 1144 (10th Cir.2005). “This rule applies even where a defendant seeks to invalidate an appellate waiver based on ineffective assistance of counsel.” Id.
Miscarriage of Justice. Mr. Bucio also contends that it would be a miscarriage of justice to enforce the appeal waiver as to count one because any appellate relief he might receive as to counts four, five, seven, eight, and nine would have no practical effect on his sentence, given that his 327-month sentence on count one runs concurrent to the other sentences. This argument, however, does not demonstrate that any of the four miscarriage-of-justiee factors, listed above, are present. The district court did not rely on an impermissible factor such as race; the sentence did not exceed the statutory maximum; and the waiver is not otherwise unlawful. See Hahn, 359 F.3d at 1327. As to this “otherwise unlawful,” factor, we do not look to “whether another aspect of the proceeding may have involved legal error,” but look only “to whether the ivaiver [itself] is otherwise unlawful.” United States v. Shockey, 538 F.3d 1355, 1357 (10th Cir.2008) (emphasis in original, quotation omitted). As noted, if Mr. Bucio wishes to assert that he received ineffective assistance of counsel in connection with the negotiation of the waiver, he may do so in a collateral motion. The four miscarriage-of-justice factors are exclusive and an appellate waiver will not result in a miscarriage of justice unless one of these four situations *16occurs. Id. Accordingly, we conclude that it would not be a miscarriage of justice to enforce the appeal waiver as to count one.
The motion to enforce the appeal waiver is GRANTED, and this appeal is DISMISSED as to count one.
This panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R.App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R.App. P. 32.1 and 10th Cir. R. 32.1.
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ORDER AND JUDGMENT*
PER CURIAM.
David J. Moorhead pleaded guilty to possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B). Because his Sentencing Guidelines range of 151 to 188 months of imprisonment was greater than the statutory maximum of 120 months, the district court imposed the statutory maximum sentence. Mr. Moor-head’s plea agreement included a waiver of his right to appeal his sentence and the manner in which it was determined by the district court, if his sentence was within or below the Guidelines range. Despite this appeal waiver, Mr. Moorhead has appealed. The government has moved to enforce the appeal waiver pursuant to United States v. Hahn, 359 F.3d 1315 (10th Cir.2004) (en banc) (per curiam). Mr. Moor-head responds that the waiver should not be enforced because the district court gave undue weight to the Sentencing Guidelines and he could not have anticipated that the court would do so before he signed the plea agreement. We grant the government’s motion to enforce and dismiss this appeal.
In Hahn, 359 F.3d at 1325, we established a three-prong test for determining whether to enforce an appeal waiver. We consider “(1) whether the disputed appeal falls within the scope of the waiver of appellate rights; (2) whether the defendant knowingly and voluntarily waived his appellate rights; and (3) whether enforcing the waiver would result in a miscarriage of justice.” Id. A miscarriage of justice will result if (1) “the district court relied on an impermissible factor such as *43race”; (2) “ineffective assistance of counsel in connection with the negotiation of the waiver renders the waiver invalid”; (3) “the sentence exceeds the statutory maximum”; or (4) “the waiver is otherwise unlawful.” Id. at 1327 (quotations omitted).
SCOPE OF WAIVER
Mr. Moorhead first argues that this appeal falls outside the scope of the appellate waiver because he did not waive his right to appeal the reasonableness of his sentence. Even though he admits that the appeal waiver was intended to prevent appeal of Sentencing Guidelines issues, he contends that the district court gave undue weight to the Guidelines, without giving proper weight to the other sentencing factors listed in 18 U.S.C. § 3553(a). He contends that he could not have anticipated that the court would give undue weight to the Guidelines and he learned of it only at sentencing.
The plea agreement provided that the district court would consider the factors listed in § 3553(a) in determining his sentence. But it also stated that Mr. Moor-head understood that the court could impose any sentence within the statutory maximum. Further, the plea agreement stated that he waived his right to appeal his sentence as imposed by the district court, including the manner in which the court determined the sentence, if the sentence was within or below the applicable advisory Sentencing Guidelines range as determined by the court. Thus, it is clear from the plain language of the appeal waiver in Mr. Moorhead’s plea agreement that his claim is within the scope of the appeal waiver. See United States v. Sandoval, 477 F.3d 1204, 1206-07 (10th Cir.2007) (finding claim within scope of appeal waiver and noting this court will not hesitate to hold defendant to terms of lawful plea agreement).
KNOWING AND VOLUNTARY WAIVER
Next, Mr. Moorhead argues that he did not knowingly and voluntarily waive his right to appeal the reasonableness of his sentence. He admits that the plea colloquy shows that he was advised of the waiver and he knowingly waived his right to appeal, but he asserts that the waiver did not anticipate the district court’s failure to consider the totality of the § 3553(a) factors.
In Hahn, we rejected the argument, which is similar to Mr. Moorhead’s argument, that the defendant did not knowingly and voluntarily waive his appellate rights because he did not know in advance what sentencing errors the court might make. See Hahn, 359 F.3d at 1326; see also Sandoval, 477 F.3d at 1208 (noting that this court has “rejected the notion that a defendant must know with specificity the result he forfeits before his waiver is valid” (quotation omitted)). Thus, Mr. Moorhead has not met his burden of proving he did not knowingly and voluntarily enter into the guilty plea. See Hahn, 359 F.3d at 1329.
MISCARRIAGE OF JUSTICE
Finally, Mr. Moorhead argues that enforcing the waiver would result in a miscarriage of justice because the district court impermissibly gave the advisory Sentencing Guidelines more weight than reasonableness allows. He also argues that holding the waiver applicable to the reasonableness-of-the-sentence issue would seriously affect the integrity and reputation of judicial proceedings as he became aware of the error only after his sentence was imposed. Thus, he contends that his *44“waiver is otherwise unlawful.” Id. at 1327 (quotation omitted).
A waiver is “otherwise unlawful” when it “ ‘seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.’ ” Id. (quoting United States v. Ola-no, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)). Mr. Moorhead’s miscarriage-of-justice argument fails to fit within this definition. He merely claims a sentencing error, and we have repeatedly held that alleged sentencing errors do not establish that enforcement of the appeal waiver would be unlawful under the miscarriage-of-justice inquiry. See S0ndoval, 477 F.3d at 1208 (“Our inquiry is not whether the sentence is unlawful, but whether the waiver itself is unlawful.... ”). Mr. Moorhead’s argument is “the logical failing[ ] of focusing on the result of [the] proceeding, rather than on the right relinquished, in analyzing whether an appeal waiver is [valid].” Hahn, 359 F.3d at 1326 n. 12.
Accordingly, we GRANT the government’s motion to enforce and DISMISS this appeal.
This panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R.App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R.App. P. 32.1 and 10th Cir. R. 32.1.
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01-04-2023
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https://www.courtlistener.com/api/rest/v3/opinions/8476070/
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ON MOTION
ORDER
Sami Labs Limited moves without opposition to withdraw its appeal.
Upon consideration thereof,
IT IS ORDERED THAT:
(1) The motion is granted.
(2) Each side shall bear its own costs.
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01-04-2023
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https://www.courtlistener.com/api/rest/v3/opinions/8476072/
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Judgment
PER CURIAM.
This CAUSE having been heard and considered, it is ORDERED and ADJUDGED:
AFFIRMED. See Fed. Cir. R. 36.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8476041/
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ON MOTION
PER CURIAM.
ORDER
The United States moves to dismiss Yvonne R. Kovacevich and Robert E. Kovacevich’s appeal as premature. The appellants oppose.
The appellants filed a complaint in the United States Court of Federal Claims seeking a refund of federal income taxes paid. The United States filed an amended counterclaim for outstanding tax liabilities. The appellants moved to strike the counterclaim for lack of jurisdiction and the Court of Federal Claims denied the motion. The appellants appealed that order.
The court’s jurisdiction over appeals from decisions of the Court of Federal Claims is governed by 28 U.S.C. § 1295(a)(8). Section 1295(a)(3) provides that the court has jurisdiction over “an appeal from a final decision of the United States Court of Federal Claims” (emphasis added). “A ‘final decision’ generally is one which ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.” Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 89 L.Ed. 911 (1945); see also Ultra-Precision Mfg. Ltd. v. Ford Motor Co., 338 F.3d 1353, 1356-57 (Fed.Cir.2003) (“[a] district court’s judgment is final where it ‘ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.’ ” (citation omitted)). Because the complaint and the United States’ counterclaim are pending in the Court of Federal Claims, there is no final decision or judgment.
Accordingly,
IT IS ORDERED THAT:
(1) The United States’ motion to dismiss is granted.
(2) Each side shall bear its own costs.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8476044/
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ON MOTION
PER CURIAM.
ORDER
The Department of Agriculture moves to dismiss Raymond L. Goodwin’s petition for review as untimely. Goodwin opposes. The United States replies.
The Merit Systems Protection Board issued a final decision on August 21, 2009, 112 M.S.P.R. 301, and served Goodwin via electronic mail on the same day. The Board informed Goodwin that its decision was final and that any petition for review must be received by this court within 60 calendar days of receipt of the Board’s decision. Pursuant to the Board’s regulations, “Board documents served electronically on registered e-filers are deemed received on the date of electronic submission,” i.e., August 21, 2009, in this case. The court received Goodwin’s petition for review on November 4, 2009, 75 days after Goodwin received the Board’s decision.
A petition for review must be received by the court within 60 days of receipt of the Board’s final order. 5 U.S.C. § 7703(b)(1). To be timely filed, the petition must be received by this court within 60 days of the date of receipt of the Board’s final order by Goodwin. Monzo v. Dep’t of Transp., Fed. Aviation Admin., 735 F.2d 1335, 1336 (Fed.Cir.1984). Because Goodwin’s petition was not timely received by this court, it must be dismissed.
Accordingly,
IT IS ORDERED THAT:
(1) The motion to dismiss is granted.
(2) Each side shall bear its own costs.
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01-04-2023
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https://www.courtlistener.com/api/rest/v3/opinions/8476048/
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LINN, Circuit Judge.
ORDER
Wi-LAN Inc. (Wi-LAN) petitions for a writ of mandamus to direct the United States District Court for the Northern District of California to vacate its order denying Wi-LAN’s motion to dismiss Intel Corporation’s (Intel) declaratory judgment action seeking a declaration of non-infringement of 18 of Wi-LAN’s patents. Intel opposes. Wi-LAN moves for leave to file a reply, with the reply attached. Intel opposes.
Wi-LAN is the owner of a number of patents relating to WiMAX broadband wireless technologies. Beginning in 2006, Wi-LAN started communicating with Intel regarding licensing Wi-LAN’s patent portfolio. On September 30, 2008, Intel filed a complaint seeking, inter alia, a declaration that it did not infringe 18 of Wi-LAN’s patents. Wi-LAN moved to dismiss the complaint or to transfer the matter to the United States District Court for the Eastern District of Texas, where Wi-LAN had filed a patent infringement action against various parties including Intel. With respect to the motion to dismiss, Wi-LAN asserted that the district court lacked subject matter jurisdiction over the complaint because no actual controversy over the patents existed at the time Intel filed its complaint.
The district court denied Wi-LAN’s motion to dismiss and granted in part WiLAN’s motion to transfer as to claims of infringement related to one of the eighteen patents. The district court found there was an actual controversy and jurisdiction over the declaratory judgment action based on (1) Wi-LAN’s communications *159with Intel stating, inter alia, that Intel products infringed some of its patents, (2) Wi-LAN’s statements to Intel that any company producing WiMAX products would require a license of Wi-LAN’s patent portfolio, and (3) Wi-LAN’s public statements in 2007 and 2008 regarding the use of its WiMAX related patents and its patent portfolio.
The writ of mandamus is available in extraordinary situations to correct a clear abuse of discretion or usurpation of judicial power. In re Calmar, Inc., 854 F.2d 461, 464 (Fed.Cir.1988). A party seeking a writ bears the burden of proving that it has no other means of obtaining the relief desired, Mallard v. U.S. Dist. Court for S. Dist. of Iowa, 490 U.S. 296, 309, 109 S.Ct. 1814, 104 L.Ed.2d 318 (1989), and that the right to issuance of the writ is “clear and indisputable,” Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 35, 101 S.Ct. 188, 66 L.Ed.2d 193 (1980). A court may deny mandamus relief “even though on normal appeal, a court might find reversible error.” In re Cordis Corp., 769 F.2d 733, 737 (Fed.Cir.1985): see also United States v. Watson, 66 C.C.P.A. 107, 603 F.2d 192, 196-97 (1979) (“the writ will not issue to cure the mere commission of reversible error”). “That a petitioner may suffer hardship, inconvenience, or an unusually complex trial does not provide a basis for a court to grant mandamus.” In re Roche Molecular Sys., Inc., 516 F.3d 1003, 1004 (Fed.Cir.2008) (citing Watson, 603 F.2d at 195).
In the papers submitted, Wi-LAN has not met its heavy burden to show a clear abuse of discretion. Wi-LAN has also not shown why it cannot raise any challenge to the district court’s determination after an appeal from a final judgment.
Accordingly,
IT IS ORDERED THAT:
(1) Wi-LAN’s petition for a writ of mandamus is denied.
(2) The motion for leave to file a reply is granted.
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https://www.courtlistener.com/api/rest/v3/opinions/8476049/
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ON MOTION
PER CURIAM.
ORDER
The Secretary of Veterans Affairs moves to waive the requirements of Fed. Cir. R. *16027(f) and dismiss this appeal for lack of jurisdiction.
Arnett A. Bracy, III sought review by the United States Court of Appeals for Veterans Claims of a Board of Veterans’ Appeals decision denying Bracy’s claim for an increased rating for a low back disability. The Board dismissed Bracy’s appeal after he failed to pay the filing fee or file a declaration of financial hardship and for failure to respond to the Court of Appeals for Veterans Claims’ show cause order. Bracy appealed to this court.
Under 38 U.S.C. § 7292, this court has limited jurisdiction over appeals from decisions of the CAVC. See Forshey v. Principi, 284 F.3d 1335, 1338 (Fed.Cir.2002) (en banc). This court “may not review (A) a challenge to a factual determination, or (B) a challenge to a law or regulation as applied to the facts of a particular case.” 38 U.S.C. § 7292(d)(2).
In his informal brief, in response to the issue decided by the Court of Appeals for Veterans Claims, Bracy argues that he “always return[s] all of my paperwork.” Bracy also argues that the Board erred in determining the facts related to his claim for an increased disability rating. These are factual issues, outside of this court’s jurisdiction. Because Bracy fails to raise an issue within our jurisdiction, we must dismiss this appeal.
Accordingly,
IT IS ORDERED THAT:
(1) The Secretary’s motions are granted.
(2) Each side shall bear its own costs.
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https://www.courtlistener.com/api/rest/v3/opinions/8476042/
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ON MOTION
PER CURIAM.
ORDER
The United States moves to dismiss Yvonne R. Kovacevich and Robert E. Kovacevich’s appeal as premature. The appellants oppose.
The appellants filed a complaint in the United States Court of Federal Claims seeking a refund of federal income taxes paid. The United States filed an amended counterclaim for outstanding tax liabilities. The appellants moved to strike the counterclaim for lack of jurisdiction and the Court of Federal Claims denied the motion. The appellants appealed that order.
The court’s jurisdiction over appeals from decisions of the Court of Federal Claims is governed by 28 U.S.C. § 1295(a)(8). Section 1295(a)(3) provides that the court has jurisdiction over “an appeal from a final decision of the United States Court of Federal Claims” (emphasis added). “A ‘final decision’ generally is one which ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.” Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 89 L.Ed. 911 (1945); see also Ultra-Precision Mfg. Ltd. v. Ford Motor Co., 338 F.3d 1353, 1356-57 (Fed.Cir.2003) (“[a] district court’s judgment is final where it ‘ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.’ ” (citation omitted)). Because the complaint and the United States’ counterclaim are pending in the Court of Federal Claims, there is no final decision or judgment.
Accordingly,
IT IS ORDERED THAT:
(1) The United States’ motion to dismiss is granted.
(2) Each side shall bear its own costs.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8476043/
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ON MOTION
PER CURIAM.
ORDER
The Department of Agriculture moves to dismiss Raymond L. Goodwin’s petition for review as untimely. Goodwin opposes. The United States replies.
The Merit Systems Protection Board issued a final decision on August 21, 2009, 112 M.S.P.R. 301, and served Goodwin via electronic mail on the same day. The Board informed Goodwin that its decision was final and that any petition for review must be received by this court within 60 calendar days of receipt of the Board’s decision. Pursuant to the Board’s regulations, “Board documents served electronically on registered e-filers are deemed received on the date of electronic submission,” i.e., August 21, 2009, in this case. The court received Goodwin’s petition for review on November 4, 2009, 75 days after Goodwin received the Board’s decision.
A petition for review must be received by the court within 60 days of receipt of the Board’s final order. 5 U.S.C. § 7703(b)(1). To be timely filed, the petition must be received by this court within 60 days of the date of receipt of the Board’s final order by Goodwin. Monzo v. Dep’t of Transp., Fed. Aviation Admin., 735 F.2d 1335, 1336 (Fed.Cir.1984). Because Goodwin’s petition was not timely received by this court, it must be dismissed.
Accordingly,
IT IS ORDERED THAT:
(1) The motion to dismiss is granted.
(2) Each side shall bear its own costs.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8476045/
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ON MOTION
PER CURIAM.
ORDER
The Secretary of Veterans Affairs moves to waive the requirements of Fed. Cir. R. 27(f) and dismiss this appeal for lack of jurisdiction.
Thesolonia McLean sought review by the Court of Appeals for Veterans Claims of a Board of Veterans’ Appeals decision denying McLean’s claim for entitlement to service connection for post-traumatic stress disorder (PTSD). The Board found that McLean did not show that in-service stressors caused PTSD, and the Court of Appeals for Veterans Claims affirmed. McLean appeals to this court.
Under 38 U.S.C. § 7292, this court has limited jurisdiction over appeals from decisions of the CAVC. See Forshey v. Principi, 284 F.3d 1335, 1338 (Fed.Cir.2002) (en banc). This court “may not review (A) a challenge to a factual determination, or (B) a challenge to a law or regulation as applied to the facts of a particular case.” 38 U.S.C. § 7292(d)(2).
The Secretary moves to dismiss the appeal for lack of jurisdiction, asserting that McLean only argues that the Board failed to properly consider evidence related to his claim for PTSD. We agree. Because McLean challenges only evidence related to factual determinations regarding his claim for PTSD, and because we have no jurisdiction to review those findings, we must dismiss McLean’s appeal.
Accordingly,
IT IS ORDERED THAT:
(1) The Secretary’s motion to dismiss is granted.
(2) Each side shall bear its own costs.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8476047/
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LINN, Circuit Judge.
ORDER
Wi-LAN Inc. (Wi-LAN) petitions for a writ of mandamus to direct the United States District Court for the Northern District of California to vacate its order denying Wi-LAN’s motion to dismiss Intel Corporation’s (Intel) declaratory judgment action seeking a declaration of non-infringement of 18 of Wi-LAN’s patents. Intel opposes. Wi-LAN moves for leave to file a reply, with the reply attached. Intel opposes.
Wi-LAN is the owner of a number of patents relating to WiMAX broadband wireless technologies. Beginning in 2006, Wi-LAN started communicating with Intel regarding licensing Wi-LAN’s patent portfolio. On September 30, 2008, Intel filed a complaint seeking, inter alia, a declaration that it did not infringe 18 of Wi-LAN’s patents. Wi-LAN moved to dismiss the complaint or to transfer the matter to the United States District Court for the Eastern District of Texas, where Wi-LAN had filed a patent infringement action against various parties including Intel. With respect to the motion to dismiss, Wi-LAN asserted that the district court lacked subject matter jurisdiction over the complaint because no actual controversy over the patents existed at the time Intel filed its complaint.
The district court denied Wi-LAN’s motion to dismiss and granted in part WiLAN’s motion to transfer as to claims of infringement related to one of the eighteen patents. The district court found there was an actual controversy and jurisdiction over the declaratory judgment action based on (1) Wi-LAN’s communications *159with Intel stating, inter alia, that Intel products infringed some of its patents, (2) Wi-LAN’s statements to Intel that any company producing WiMAX products would require a license of Wi-LAN’s patent portfolio, and (3) Wi-LAN’s public statements in 2007 and 2008 regarding the use of its WiMAX related patents and its patent portfolio.
The writ of mandamus is available in extraordinary situations to correct a clear abuse of discretion or usurpation of judicial power. In re Calmar, Inc., 854 F.2d 461, 464 (Fed.Cir.1988). A party seeking a writ bears the burden of proving that it has no other means of obtaining the relief desired, Mallard v. U.S. Dist. Court for S. Dist. of Iowa, 490 U.S. 296, 309, 109 S.Ct. 1814, 104 L.Ed.2d 318 (1989), and that the right to issuance of the writ is “clear and indisputable,” Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 35, 101 S.Ct. 188, 66 L.Ed.2d 193 (1980). A court may deny mandamus relief “even though on normal appeal, a court might find reversible error.” In re Cordis Corp., 769 F.2d 733, 737 (Fed.Cir.1985): see also United States v. Watson, 66 C.C.P.A. 107, 603 F.2d 192, 196-97 (1979) (“the writ will not issue to cure the mere commission of reversible error”). “That a petitioner may suffer hardship, inconvenience, or an unusually complex trial does not provide a basis for a court to grant mandamus.” In re Roche Molecular Sys., Inc., 516 F.3d 1003, 1004 (Fed.Cir.2008) (citing Watson, 603 F.2d at 195).
In the papers submitted, Wi-LAN has not met its heavy burden to show a clear abuse of discretion. Wi-LAN has also not shown why it cannot raise any challenge to the district court’s determination after an appeal from a final judgment.
Accordingly,
IT IS ORDERED THAT:
(1) Wi-LAN’s petition for a writ of mandamus is denied.
(2) The motion for leave to file a reply is granted.
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https://www.courtlistener.com/api/rest/v3/opinions/8476179/
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OPINION
PER CURIAM.
Li Hua Bai petitions for review of the Board of Immigration Appeals’ (“BIA”) final order of removal. We will grant her petition and remand for further proceedings.
I.
Bai, a citizen of China, entered the United States in June 2006 without being admitted or paroled. The Government later instituted removal proceedings on that basis. Bai concedes removability, but seeks asylum, statutory withholding of removal and relief under the Convention Against Torture. She claims to have suffered mistreatment in the past and fears mistreatment in the future on account of her membership in a Christian church that is not authorized by the Chinese government.
Before an Immigration Judge (“IJ”), Bai testified that she converted to Christianity in 2003 while living in the Congo. Upon her return to China, she joined a government-approved church, but left after concluding that it did not “teach the Bible properly.” She then joined an unauthorized “home” church with approximately seven members. Weekly services rotated among the members’ houses and eventually were held at Bai’s house, where Bai lived with her mother. Bai testified that, during a service on May 22, 2005, Chinese police burst into her house, broke tables and tore up Bibles. They arrested Bai, but let everyone else go after taking their names and addresses.
Police then interrogated Bai at the police station. During the interrogation, they kicked her off her chair, then kicked her and hit her with the chair while she was on the ground. Afterwards, they took her to prison, where authorities kept her in a cramped space and alternately denied her food and put it in a toilet before giving it to her. Finally, after ten days in prison, Bai agreed to sign an affidavit of some kind and the authorities released her. Authorities required her to check in at the police station once per week, which Bai did until leaving the country. She did not participate in church activities during that time, but she joined a church shortly after arriving in the United States. In addition to her testimony, Bai presented the 2005 Profile of Asylum Claims and Country Conditions, which describes the Chinese government’s suppression of “underground” churches. (A.184-86.) She also presented the testimony of and a letter from her current minister, though that evidence was limited to Bai’s practice of Christianity since arriving in this country.
The IJ appears to have found Bai’s testimony credible, as we will assume it to be for purposes of review.1 The IJ denied relief, however, on the ground that Bai failed to corroborate her claims. In particular, the IJ explained that Bai had not submitted any letters or statements from her mother, her Chinese minister, or her fellow Chinese church members to corrob*390orate her practice of Christianity in China or the break-up of the church meeting and her arrest. Bai explained that she asked family members to write letters on her behalf, but that they were afraid to do so because the Chinese government monitors the mail. The IJ rejected this explanation on the sole basis that Bai presented no proof that Chinese authorities open mail sent from China.
On appeal, Bai requested that the BIA consider the 2006 Country Report on Human Rights Practices prepared by the United States Department of State. That report states in relevant part: “During the year authorities monitored telephone conversations, facsimile transmissions, e-mail, text messaging, and Internet communications. Authorities also opened and censored domestic and international mail.” (A. 38.) The BIA refused to consider the report, stating that it “may not consider evidence presented for the first time on appeal[.]” (BIA Dec. at 1.) The BIA also agreed with the IJ that Bai failed to carry her burden of proof because she “failed to present reasonably available evidence to support the material aspects of her claim.” (Id. at 2.) Bai petitions for review.
II.
We have jurisdiction pursuant to 8 U.S.C. § 1252. “Because the IJ’s corroboration discussion and determinations are affirmed and partially reiterated in the BIA’s decision, we review them along with the BIA’s decision.” Sandie v. Att’y Gen., 562 F.3d 246, 250 (3d Cir.2009). In doing so, we review factual findings for substantial evidence and may not disturb them “ ‘unless any reasonable adjudicator would be compelled to conclude to the contrary.’ ” Id. (quoting 8 U.S.C. § 1252(b)(4)(B)). We exercise plenary review over conclusions of law, subject to established principles of deference on agency review. See Sioe Tjen Wong v. Att’y Gen., 539 F.3d 225, 231 (3d Cir.2008). This case is governed by the standards set forth in the REAL ID Act because Bai filed her petition after its effective date of May 11, 2005. See Sandie, 562 F.3d at 252 n. 2.2
Bai raises three arguments. First, she asserts in conclusory fashion that the BIA erred in requiring corroboration because her credible testimony by itself was sufficient to carry her burden of proof. It is true that credible testimony alone may be sufficient to carry an applicant’s burden of proof, whether under the REAL ID Act or prior law. See 8 U.S.C. § 1158(b)(1)(B); Sandie, 562 F.3d at 252. Even before the REAL ID Act, however, “credible testimony alone [was] not always sufficient to meet the burden of proof.” Sandie, 562 F.3d at 252. Instead, applicants could be required to “provide reliable evidence to corroborate testimony when it [was] reasonable to expect corroborating evidence and there [was] no satisfactory explanation *391for its absence.” Id. In addition, “[i]t [was] reasonable to expect corroboration for testimony that is central to an applicant’s claim and easily subject to verification.” Id. Thus, even under pre-REAL ID Act standards, the IJ was well within her rights to require Bai to provide reasonably available corroboration of the material aspects of her claim. Bai does not argue that the REAL ID Act has altered this framework in her favor, and we see no indication that it has. See In re J-Y-C-, 24 I. & N. Dec. at 265 (claim of Chinese underground church member insufficient under the REAL ID Act where, inter alia, he failed to “submit an affidavit from anyone who could corroborate his role in home churches or the practice of Christianity in general” or “statements from [his] relatives in China”).3
Second, Bai argues that the BIA should have taken “judicial notice” of the 2006 country report she submitted on appeal, which she offered in support of her explanation for failing to provide corroborating evidence. We understand Bai to be referring to the concept of official or administrative notice, which allows the BIA to take notice of certain materials not appearing of record. See Zubeda v. Ashcroft, 333 F.3d 463, 479 (3d Cir.2003); 8 C.F.R. § 1003.1(d)(3)(iv). We agree that this issue requires remand. In declining to consider the 2006 country report, the BIA wrote that “we may not consider evidence presented for the first time on appeal[.]” (BIA Dec. at 1.) While that is true as a general matter, we recently reiterated that the applicable regulation allows the BIA to take administrative notice of “ ‘the contents of official documents such as country condition reports prepared by the Department of State.’ ” Sheriff v. Att’y Gen., 587 F.3d 584, 591-92 (3d Cir.2009) (quoting 67 Fed.Reg. 54878, 54891 (Aug. 26, 2002)).4 In this case, the BIA did not acknowledge its discretion to take administrative notice of the 2006 country report or explain whether or why it was declining to exercise that discretion. Thus, we will remand for the BIA to consider in the first instance whether to take administrative notice of the 2006 country report.5
Finally, Bai asserts that the IJ and BIA denied her due process by “ignoring” her testimony and evidence. Bai, however, does not specify what evidence she believes that the IJ and BIA ignored, and our review of the record reveals no material evidence that they overlooked.
Accordingly, we will grant Bai’s petition for review and remand for the BIA to *392consider whether to take administrative notice of the 2006 country report and, if necessary, specifically address Bai’s expíanation for failing to corroborate her credible testimony,
. In her oral decision, the IJ described Bai’s testimony merely as "consistent,” (IJ Dec. at 19, 23-24), but clarified following her decision that she found Bai "sympathetic” and "purposely didn’t make any negative credibility finding" in order to entitle Bai to a presumption of credibility before the BIA (A.179). See 8 U.S.C. § 1158(b)(l)(B)(iii).
. The REAL ID Act provides in relevant part: “Where the trier of fact determines that the applicant should provide evidence that corroborates otherwise credible testimony, such evidence must be provided unless the applicant does not have the evidence and cannot reasonably obtain the evidence.” 8 U.S.C. § 1158(b)(l)(B)(ii). We have not yet addressed this provision in a precedential opinion, but the BIA and other Courts of Appeals have held that it essentially codifies the BIA's pre-REAL ID Act standards for requiring corroboration. See, e.g., Liu v. Holder, 575 F.3d 193, 197 (2d Cir.2009); Rapheal v. Mukasey, 533 F.3d 521, 527 (7th Cir.2008); In re J-YC-, 24 I. & N. Dec. 260, 263 (BIA 2007). At least one other Court of Appeals has concluded that this provision “enhancefs] the evidentiary requirements for obtaining asylum.” Pamssimova v. Mukasey, 555 F.3d 734, 741 (9th Cir.2009). We need not address that issue because our disposition would be the same even if the REAL ID Act does nothing more than codify preexisting law on this point.
. Bai does not contest that the corroboration the IJ sought is material to her claims and available to her. She also does not argue that the IJ failed to conduct the necessary three-part inquiry before requiring corroboration, and our review of the record confirms that the IJ properly engaged in that inquiry. See Sandie, 562 F.3d at 252-53.
. As support for its statement, the BIA cited In re Fedorenko, 19 I. & N. Dec. 57, 74 (BIA 1984). The newly presented evidence at issue there, however, was a letter from a doctor peculiar to the petitioner’s own case, not an official document potentially subject to administrative notice. See id. at 73-74.
.The BIA also did not specifically address Bai's explanation for failing to provide corroborating evidence — i.e., that her family members are afraid to send it because Chinese authorities monitor the mail. We express no opinion on the adequacy of that explanation, but the BIA should specifically address it if it decides to take administrative notice of the 2006 country report. The BIA noted that, regardless of Bai's explanation for failing to provide corroborating evidence regarding her experiences in China, she offered no explanation for failing to corroborate her practice of Christianity in the Congo. We cannot say from the BIA's decision that such a failing, standing alone, would have resulted in the dismissal of her appeal.
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ON MOTION
SCHALL, Circuit Judge.
ORDER
The International Trade Commission moves to dismiss this appeal. Sinochem Modern Environmental Protection Chemicals (XI’AN) Co. Ltd. et al. (Sinochem) oppose.
Pursuant to 19 U.S.C. § 1337(c), only a party adversely affected by a final determination of the ITC may appeal to this court. Surface Technology, Inc. v. Int’l Trade Comm’n, 780 F.2d 29, 30 (Fed.Cir.1985). Here, the ITC made a final determination of no Section 337 violation. The complainants filed an appeal in this court, 2009-1513. Sinochem also filed an appeal, in the nature of a cross-appeal, on the ground that the ITC rejected some of its patent invalidity arguments. However, it is only necessary and appropriate to file a cross-appeal when a party seeks to enlarge its own rights under the judgment or to lessen the rights of its adversary under the judgment. Bailey v. Dart Container Corp. of Michigan, 292 F.3d 1360, 1362 (Fed.Cir.2002) (citation omitted). Thus, a party must file a cross-appeal when acceptance of the argument it wishes to advance would result in a reversal or modification of the judgment, rather than an affirmance. Id. That is not the case here because even if Sinochem’s arguments concerning invalidity are accepted, the final determination would still be one of no Section 337 violation, which would result in an affirmance. Sinochem may raise its arguments concerning invalidity in its brief as an appellee in 2009-1513.
Accordingly,
IT IS ORDERED THAT:
(1) The motion to dismiss this appeal is granted. All other pending motions are moot.
(2) Each side shall bear its own costs.
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ON MOTION
PER CURIAM.
ORDER
The parties respond to the court’s November 2, 2009 order directing a response as to whether this appeal should be transferred to the United States Court of Appeals for the Eleventh Circuit or dismissed.
Timothy Peter Baker appeals from a decision of the United States District Court for the District of Alabama, dismissing his complaint with prejudice. Baker’s complaint alleged wrongdoing stemming from a prior settlement agreement between Baker and the Department of Homeland Secretary. This court is a court of limited jurisdiction. 28 U.S.C. § 1295. Because this case does not fall within our jurisdiction, we transfer this appeal to the United States Court of Appeals for the Eleventh Circuit pursuant to 28 U.S.C. § 1631.
Accordingly,
IT IS ORDERED THAT:
The motion to transfer is granted. The appeal is transferred to the United States Court of Appeals for the Eleventh Circuit.
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ORDER
SCHALL, Circuit Judge.
The Secretary of Veterans Affairs responds to the court’s November 5, 2008 order and moves to dismiss Charles E. Keyes’ appeal.
The briefing schedule in this appeal was stayed pending this court’s disposition of Vazquez-Flores v. Shinseki, and Schultz v. Shinseki,. In the present case, the United States Court of Appeals for Veterans Claims affirmed the Board of Veterans’ Appeals decision that the Department of Veterans Affairs provided Keyes with sufficient notice under the Veteran Claims Assistance Act of 2000 in denying Keyes an initial disability rating.
In his brief appeal, Keyes relies on the Court of Appeals for Veterans Claims’ de*164cisión in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). In that decision, the Court of Appeals for Veterans Claims held that when a veteran seeks an increased disability rating, the Department of Veterans Affairs must provide the veteran with specific notice of the relevant rating criteria for every diagnostic code potentially applicable to the veteran and must also consider the effect the veteran’s worsened disability has on his or her daily life in making its determination. On September 4, 2009, this court reversed the Court of Appeals for Veterans Claims and held that a veteran need not be provided with specific notice and that “daily life” evidence need not be required for proper claim adjudication. Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1281 (Fed.Cir.2009).
Because the only issue over which we would have jurisdiction is clearly resolved by our recent decision in Vazquez-Flores, summary affirmance of the Court of Appeals for Veterans Claims’ judgment is appropriate. Joshua v. United States, 17 F.3d 378, 380 (Fed.Cir.1994) (summary affirmance of a case “is appropriate, inter alia, when the position of one party is so clearly correct as a matter of law that no substantial question regarding the outcome of the appeal exists”).
Accordingly,
IT IS ORDERED THAT:
(1) The Secretary’s motion to dismiss is denied.
(2) The judgment of the Court of Appeals for Veterans Claims is summarily affirmed.
(3) Each side shall bear its own costs.
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PER CURIAM.
This CAUSE having been heard and considered, it is
ORDERED and ADJUDGED:
AFFIRMED. See Fed. Cir. R. 36.
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ON MOTION
ORDER
Zhejiang Native produce et al. move without opposition to withdraw this appeal.
Upon consideration thereof,
*169IT IS ORDERED THAT:
(1) The motion is granted.
(2) All sides shall bear their own costs.
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Judgment
PER CURIAM.
This CAUSE having been heard and considered, it is ORDERED and ADJUDGED:
AFFIRMED. See Fed. Cir. R. 36.
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ON MOTION
PER CURIAM.
ORDER
The parties respond to the court’s November 2, 2009 order directing a response as to whether this appeal should be transferred to the United States Court of Appeals for the Eleventh Circuit or dismissed.
Timothy Peter Baker appeals from a decision of the United States District Court for the District of Alabama, dismissing his complaint with prejudice. Baker’s complaint alleged wrongdoing stemming from a prior settlement agreement between Baker and the Department of Homeland Secretary. This court is a court of limited jurisdiction. 28 U.S.C. § 1295. Because this case does not fall within our jurisdiction, we transfer this appeal to the United States Court of Appeals for the Eleventh Circuit pursuant to 28 U.S.C. § 1631.
Accordingly,
IT IS ORDERED THAT:
The motion to transfer is granted. The appeal is transferred to the United States Court of Appeals for the Eleventh Circuit.
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ORDER
SCHALL, Circuit Judge.
The Secretary of Veterans Affairs responds to the court’s November 5, 2008 order and moves to dismiss Charles E. Keyes’ appeal.
The briefing schedule in this appeal was stayed pending this court’s disposition of Vazquez-Flores v. Shinseki, and Schultz v. Shinseki,. In the present case, the United States Court of Appeals for Veterans Claims affirmed the Board of Veterans’ Appeals decision that the Department of Veterans Affairs provided Keyes with sufficient notice under the Veteran Claims Assistance Act of 2000 in denying Keyes an initial disability rating.
In his brief appeal, Keyes relies on the Court of Appeals for Veterans Claims’ de*164cisión in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). In that decision, the Court of Appeals for Veterans Claims held that when a veteran seeks an increased disability rating, the Department of Veterans Affairs must provide the veteran with specific notice of the relevant rating criteria for every diagnostic code potentially applicable to the veteran and must also consider the effect the veteran’s worsened disability has on his or her daily life in making its determination. On September 4, 2009, this court reversed the Court of Appeals for Veterans Claims and held that a veteran need not be provided with specific notice and that “daily life” evidence need not be required for proper claim adjudication. Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1281 (Fed.Cir.2009).
Because the only issue over which we would have jurisdiction is clearly resolved by our recent decision in Vazquez-Flores, summary affirmance of the Court of Appeals for Veterans Claims’ judgment is appropriate. Joshua v. United States, 17 F.3d 378, 380 (Fed.Cir.1994) (summary affirmance of a case “is appropriate, inter alia, when the position of one party is so clearly correct as a matter of law that no substantial question regarding the outcome of the appeal exists”).
Accordingly,
IT IS ORDERED THAT:
(1) The Secretary’s motion to dismiss is denied.
(2) The judgment of the Court of Appeals for Veterans Claims is summarily affirmed.
(3) Each side shall bear its own costs.
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PER CURIAM.
This CAUSE having been heard and considered, it is
ORDERED and ADJUDGED:
AFFIRMED. See Fed. Cir. R. 36.
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Judgment
PER CURIAM.
This CAUSE having been heard and considered, it is ORDERED and ADJUDGED:
AFFIRMED. See Fed. Cir. R. 36.
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JUDGMENT
PER CURIAM.
This appeal was considered on the record from the United States District Court for the District of Columbia and the briefs and oral arguments of the parties. For the reasons stated below, it is
ORDERED and ADJUDGED that the judgment of the district court be affirmed and the defendant’s motion to remand the case under Federal Rule of Criminal Procedure 36 be denied.
Martinez was sentenced to 46 months in prison after pleading guilty to unlawful possession of cocaine with intent to distribute in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(c). Martinez seeks resentencing based on an alleged factual error in his presentence report regarding the status of an immigration detainer against him. Because Martinez did not object to the factual accuracy of the presentence report during sentencing, the district court’s factual findings are subject only to plain error review. This Court has held that a district court’s adoption of the factual findings of a presentence report can be plain error only when the facts therein “are internally contradictory, wildly implausible, or in direct conflict with the evidence that the sentencing court heard at trial.” United States v. Saro, 24 F.3d 283, 291 (D.C.Cir.1994). The presentence report did not contain facts meeting that standard. Moreover, at sentencing, the district court did not refer to or rely on the status of an immigration detainer; as a result, Martinez cannot meet the prejudice prong of the plain error test. Saro, 24 F.3d at 288.
As to the motion to remand, a defendant may not employ Federal Rule of Criminal Procedure 36 to correct the kind of error at issue in this case. Rule 36 provides for the correction of clerical errors “in a judgment, order, or other part of the record” *186or the correction of “an error in the record arising from oversight or omission.” Fed. R.CRIM.P. 36. Alleged factual inaccuracies in a presentence report are not within the narrow confines of this rule.
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 rehearing en bane. See Fed. R.App. P. 41(b); D.C.Cir. R. 41(b).
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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 briefs 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 order filed July 29, 2009, be affirmed. The district court did not abuse its discretion in dismissing appellant’s complaint without prejudice for noncompliance with Fed.R.Civ.P. 8(a). See, e.g., Ciralsky v. CIA 355 F.3d 661, 668 (D.C.Cir.2004).
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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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 order filed July 29, 2009, be affirmed. The district court did not abuse its discretion in dismissing appellant’s complaint without prejudice for noncompliance with Fed.R.Civ.P. 8(a). See, e.g., Ciralsky v. CIA, 355 F.3d 661, 668 (D.C.Cir.2004).
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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JUDGMENT
PER CURIAM.
This case was considered on the record from the United States District Court for the District of Columbia and on the briefs and arguments by counsel. It is
ORDERED and ADJUDGED that the judgment of the district court be affirmed. The district court did not abuse its discretion in denying Basu’s motion to withdraw his guilty plea, since Basu failed to show that the plea was tainted by any constitutional or procedural error. See United States v. Cray, 47 F.3d 1203, 1207 (D.C.Cir.1995) (“[W]e have never held that a district court abused its discretion in denying a motion to withdraw a guilty plea where the defendant failed to show some defect in the taking of his plea under Rule 11.”).
Basu asserted “taint” arising from “his need to act hastily and the encouragement of his counsel to accept the plea package in its totality” and the fact that Basu “did not fully understand the requirement of criminal intent.” Defs Mot. Withdraw His Guilty Plea 3. But the presence of a deadline does not, without more, render a plea involuntary. Moreover, advice of counsel that pleading guilty would be beneficial does not render a plea involuntary, absent a showing that the counsel’s performance was so deficient as to constitute ineffective assistance. See In re Sealed Case, 488 F.3d 1011, 1015 (D.C.Cir.2007) (“‘[T]he voluntariness of the plea depends on whether counsel’s advice’ satisfies the Sixth Amendment guarantee of effective assistance.” (quoting Hill v. Lockhart, 474 U.S. 52, 56, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985))). Consequently, Basu’s attack on *189his counsel’s advice to plead guilty merges into his ineffective assistance of counsel claim.
On that claim, we agree with the district court that Basu failed to make any showing that his counsel’s performance might have been deficient. The only advice of counsel alluded to in Basu’s affidavit accompanying the motion to withdraw was the alleged advice that Basu’s statements to authorities “placed [him] in a position where ... [he] would have no chance at trial,” so that he was in effect compelled “to plead guilty to facts that were simply not true.” But the fact that Basu’s attorney advised him that he had no chance at trial is insufficient to rebut the “strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In light of Basu’s detailed incriminating statements to authorities, Basu’s lawyer could have concluded, in the exercise of his professional judgment, that Basu’s chances of success at trial were slim. Consequently, “even if [defense counsel] did [advise the defendant his ease was ‘hopeless’], we do not believe that such an assessment fell outside ‘the range of competence demanded of attorneys in criminal cases.’ ” United States v. Curry, 494 F.3d 1124, 1130 (D.C.Cir.2007) (quoting Hill, 474 U.S. at 56, 106 S.Ct. 366).
For the same reason, the district court acted within its discretion in denying Basu’s request to hold an evidentiary hearing. Because Basu’s allegations, even if true, did not make out “any cognizable claim for” ineffective assistance of counsel or any other ground for relief from the guilty plea, no hearing was necessary to resolve Basu’s motion. See United States v. Taylor, 139 F.3d 924, 933 (D.C.Cir.1998) (noting that denial of a motion to withdraw a plea without holding an evidentiary hearing may be proper when the motion “fail[s] to allege sufficient facts or circumstances ‘upon which the elements of constitutionally deficient [assistance of counsel] might properly be found’ ” (quoting United States v. Pinkney, 543 F.2d 908, 916 (D.C.Cir.1976))).
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 rehearing en banc. See Fed. R.App. P. 41(b); D.C.Cir. R. 41.
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JUDGMENT
PER CURIAM.
This case was considered on the record from the United States District Court for the District of Columbia and on the briefs of the parties pursuant to D.C. Circuit Rule 34(j). It is
ORDERED and ADJUDGED that the judgment of the district court be affirmed. James Zhang appeals the district court’s denial of his motion for Rule 11 sanctions against Footbridge Limited Trust (“Footbridge”). The sanctions motion stemmed from a complaint filed by Footbridge against Zhang alleging legal malpractice and negligence. Specifically, Footbridge accused Zhang of failing to timely perfect a security interest on a loan it made to a third party through a holding company that employed Zhang as a commercial transaction attorney. After more than four years of litigation and an “extensive and contentious discovery” process, the district court granted Zhang’s motion for summary judgment because, among other reasons, Footbridge could not establish the applicable standard of care in the absence of expert testimony. Footbridge Ltd. Trust v. Zhang, 584 F.Supp.2d 150, 157, 160 (D.D.C.2008).
Zhang filed a motion for Rule 11 sanctions against Footbridge’s attorneys, claiming that they had failed to make a reasonable inquiry before filing the complaint against him, presented legal arguments that were unwarranted based on existing law, and made a factual allegation without evidentiary support. After explaining the legal standard for imposing Rule 11 sanctions, the district court rejected Zhang’s motion. Footbridge Ltd. Tnst v. Zhang, No. 04-347 (D.D.C. Nov. 13, 2008) (order denying Rule 11 sanctions motion) (“Order ”). We review the district court’s denial of the Rule 11 motion for abuse of discretion. Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405, 110 S.Ct. 2447, 110 L.Ed.2d 359 (1990); Lucas v. Duncan, 574 F.3d 772, 775 (D.C.Cir.2009).
*191On appeal, Zhang complains that the district court abused its discretion by failing to address his arguments or provide an adequate explanation for its decision not to impose sanctions. The district court, however, specifically identified each of the arguments Zhang put forward in his sanctions motion and articulated the correct legal standard for imposing sanctions under Rule 11. The court then explained why it declined to impose Rule 11 sanctions in this case:
Although [Zhang] prevailed on his Motion for Summary Judgment, the Court cannot find that [Footbridge’s] Complaint, nor the factual and legal assertions therein, were presented for improper purposes, nor that they were so incredible as to warrant sanctions. On the contrary, the parties’ respective positions required extensive discovery and briefing before the Court could ultimately render its November 5, 2008 decision. The Court therefore finds, in its discretion, that there is no basis to award Rule 11 sanctions in this case.
Order at 2-3. In view of this analysis, Zhang’s assertions that the district court ignored his legal arguments and provided an insufficient explanation for its decision are without merit. Furthermore, although Zhang contends that the district court found that sanctions were unwarranted “¡solely” because Footbridge’s complaint was not presented for improper purposes, Appellant’s Br. 19, we do not read the court’s decision to be so limited. Noting the complicated nature of the proceedings, the court concluded that Footbridge’s complaint was not “so incredible as to warrant sanctions.” Order at 2. Thus, the district court clearly considered the substance of the complaint and not just Footbridge’s motive for bringing it.
Zhang’s contention that the district court based its decision on clearly erroneous factual findings is similarly unavailing. See Cooler, 496 U.S. at 405, 110 S.Ct. 2447 (“A district court would necessarily abuse its discretion if it based its ruling on an erroneous view of the law or on a clearly erroneous assessment of the evidence.”). Zhang feels particularly aggrieved by the district court’s reference to his sanctions motion as “an apparent effort to prolong this seemingly never-ending litigation.” Order at 1. Protesting that it was in fact the district court that unnecessarily protracted the litigation, Zhang complains that the court’s assertion “was patently false and was directly contradicted by Zhang’s strenuous efforts to end” the lawsuit. Appellant’s Br. 7. Zhang goes so far as to invite the district court to impose sanctions against him for his allegedly dilatory behavior. But the district court did not, as Zhang alleges, base its decision on Zhang’s perceived motives for filing his sanctions motion. Rather, the court denied his motion because it concluded that Footbridge’s complaint was not presented for any improper purpose or “so incredible as to warrant sanctions.” Order at 2. Whether or not Zhang sought to delay the litigation is therefore irrelevant.
Zhang further asserts that Footbridge’s complaint was frivolous because it lacked evidentiary support and because Footbridge failed to produce expert testimony establishing the applicable standard of care. In this circuit, however, “ ‘decisions concerning Rule 11 sanctions are better left to the discretion of the district court which has a bird’s eye view of the actual positions taken by the litigants,’ and [we] will not second guess the factual determinations integral to the district court’s decision not to impose Rule 11 sanctions.” Shekoyan v. Sibley Int’l, 409 F.3d 414, 425 (D.C.Cir.2005) (internal citations omitted). The district court concluded that although Footbridge’s complaint was ultimately a loser, it was not so frivolous as to warrant sanctions. We see no reason to second *192guess that determination or the court’s exercise of its discretion in this case.
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 rehearing en banc. See Fed. R.App. P. 41(b); D.C.Cir. R. 41(b).
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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 July 22, 2009, 2009 WL 2216787, order be affirmed. The district court correctly concluded that appellant’s complaint was frivolous. See Best v. Kelly, 39 F.3d 328 (D.C.Cir.1994). Moreover, appellant’s complaint in No. 09-cv-214 was dismissed for lack of subject matter jurisdiction, pursuant to Fed.R.Civ.P. 12(b)(1), on the ground that his claims were wholly insubstantial. See Riles v. Geithner, — F.Supp.2d ——, 2009 WL 1886214 (D.D.C.2009). Because appellant’s complaint in this case presents the same jurisdictional issue, he is precluded from asserting that the district court has jurisdiction to grant the relief he requests. See GAF Corp. v. United States, 818 F.2d 901, 912 (D.C.Cir.1987) (“The judgment ordering dismissal will ... have preclusive effect as to matters actually adjudicated; it will, for example, preclude relitigation of the precise issue of jurisdiction that led to the initial dismissal.”). Regarding appellant’s contention that the district court judge should be recused, appellant has failed to allege a valid basis for recusal. See Liteky v. Unit*193ed States, 510 U.S. 540, 555, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994) (judicial rulings alone almost never constitute a valid basis for a bias or partiality motion); Rafferty v. NYNEX Corp., 60 F.3d 844 (D.C.Cir.1995) (no bias shown where party’s inference of bias, based on unfavorable judicial rulings and from court delays, was not supported by evidence).
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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JUDGMENT
PER CURIAM.
This petition for writ of mandamus was presented to the court, and briefed and argued by counsel. The court has accorded the issues full consideration and has determined they do not warrant a published opinion. See D.C.Cir. Rule 36(d). It is
ORDERED and ADJUDGED that the petition for writ of mandamus be denied.
The United States alleges that petitioner violated the False Claims Act, 31 U.S.C. §§ 3729-33, by making fraudulent representations on its pre-qualification documents in order to obtain a contract funded by the U.S. Agency for International Development (“USAID”) and by fraudulently billing USAID for work performed in violation of that contract. In 2004, petitioner *194filed a motion to dismiss the complaint pursuant to Federal Rules of Civil Procedure 12(b)(2), (3), and (6), and, in the alternative, to transfer the case, pursuant to 28 U.S.C. §§ 1404(a) and 1406(a), to Mobile, Alabama, where its principal place of business is located. In 2009, the district court denied the motion and petitioner’s motion for reconsideration. Petitioner then filed a petition for a writ of mandamus to direct the district court to transfer the case or hold a hearing on the issue. We deny the writ.
Mandamus is an extraordinary remedy, justified only by “exceptional circumstances amounting to a judicial usurpation of power, or a clear abuse of discretion.” Cheney v. U.S. Dist. Court for the Dist. of Columbia, 542 U.S. 367, 380, 124 S.Ct. 2576, 159 L.Ed.2d 459 (2004) (internal citations and quotation marks omitted). Generally the writ will not issue unless no other adequate remedy is available, there is a clear right in the petitioner to the relief sought, and the issuing court is satisfied that the writ is appropriate under the circumstances. Id. at 380-81, 124 S.Ct. 2576. The writ will only issue “to compel the performance of a ‘clear nondiscretionary duty.’ ” Pittston Coal Group v. Sebben, 488 U.S. 105, 121, 109 S.Ct. 414, 102 L.Ed.2d 408 (1988) (quoting Heckler v. Ringer, 466 U.S. 602, 616, 104 S.Ct. 2013, 80 L.Ed.2d 622 (1984)). The requirement of a clear duty is inimical to a discretionary determination that is vested in the district court. See Ganem v. Heckler, 746 F.2d 844, 853 (D.C.Cir.1984) (quoting Work v. United States ex rel. Rives, 267 U.S. 175, 177, 45 S.Ct. 252, 69 L.Ed. 561 (1925)).
The False Claims Act provides that venue is proper wherever a defendant “transacts business.” 31 U.S.C. § 3732(a). The district court relied on four facts in finding that personal jurisdiction and venue were proper: (1) Petitioner’s contract denoted USAID’s substantial oversight role; (2) Petitioner sent the allegedly false pre-qualification documents and pay certifications to the District of Columbia for USAID approval and payment; (3) USAID wire-transferred funds from the District of Columbia directly to petitioner; and (4) Petitioner had numerous business dealings with federal entities headquartered in the District of Columbia. Mem. Op. at 4-5. Whether or not the ruling is correct, it does not raise a question that should be resolved pursuant to a writ of mandamus. See Kerr v. U.S. Dist. Court for the N. Dist. of Cal. 426 U.S. 394, 403, 96 S.Ct. 2119, 48 L.Ed.2d 725 (1976) (stating “the writ will issue only in extraordinary circumstances” when “the party seeking issuance of the writ ha[s] no other adequate means to attain the relief he desires” and the “right to issuance of the writ is clear and indisputable”) (internal citations and quotation marks omitted). The district court was not clearly wrong in its decision on personal jurisdiction, and any issue regarding that matter can be raised on appeal.
The decision whether or not to transfer the case to another judicial district pursuant to 28 U.S.C. § 1404(a) is discretionary. A transfer in derogation of proper venue in the District of Columbia must be justified by particular circumstances that render the forum inappropriate by reference to considerations specified in the statute. Starnes v. McGuire, 512 F.2d 918, 925-26 (D.C.Cir.1974) (en banc). Petitioner contends the district court “gave overriding weight to an improper factor,” Petition at 12, namely that the case was four years old as a result of the delay in acting on its motion to dismiss or transfer the case. However, petitioner’s reliance on a statement considering its motion for reconsideration overlooks the district court’s findings in initially denying *195petitioner’s motion and the district court’s statement that the case could have been brought in Alabama but the plaintiffs choice of forum was due deference. It also overlooks the district court’s observation that it saw nothing new in petitioner’s motion for reconsideration. Considering the age of the case implicitly invokes public interest considerations, 28 U.S.C. § 1404(a) (interest of justice); see Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508-09, 67 S.Ct. 839, 91 L.Ed. 1055 (1947), and is not the sort of improper “personal convenience” factor that the court addressed in issuing a writ of mandamus to prevent the sua sponte transfer of a case overriding the plaintiffs choice of forum, see In re Scott, 709 F.2d 717, 721 (D.C.Cir.1983) (per curiam). Here the factors relevant to transfer were addressed in the parties’ pleadings. Assuming the district court should have provided a record to show it had considered each of the transfer factors, see Scott, 709 F.2d at 718 n. 4, 720, as in the cases it cited, Mem. Op. at 6 (citing Sierra Club v. Van Antwerp, 523 F.Supp.2d 5 (D.D.C.2007); DeLoach v. Philip Morris Cos., Inc., 132 F.Supp.2d 22 (D.D.C.2000)), petitioner still fails to show that the district court usurped power by retaining the case in this judicial district or clearly abused its discretion in a manner to warrant extraordinary relief by mandamus.
Pursuant to D.C. Circuit Rule 36, this disposition will not be published.
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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 the briefs and oral arguments of the parties. Although the issues presented occasion no need for a published opinion, they have been accorded full consideration by the Court. See Fed. R.App. P. 36; D.C.Cir. Rule 36(d). For the reasons stated below, it is
ORDERED and ADJUDGED that the judgment of the district court be affirmed.
First, the evidence was sufficient to support Simms’s conviction. The Government *196introduced evidence fully supporting each element of the offense. Although the Government’s primary witness was impeached, determining the credibility of witnesses is a matter for the jury. E.g., United States v. Foster, 557 F.3d 650, 655 (D.C.Cir.2009).
Second, the district court’s use of compound questions was not, in this case, an abuse of discretion. Simms acknowledges he cannot show substantial prejudice as a result of the compound questions but attributes that to the nature of such questions and therefore asks the court to hold they are per se an abuse of discretion.
This court has repeatedly noted that compound questions are inappropriate and has warned the district judge against using them. See United States v. Moulding, 557 F.3d 658 (D.C.Cir.2009); United States v. Harris, 515 F.3d 1307 (D.C.Cir.2008); United States v. Littlejohn, 489 F.3d 1335 (D.C.Cir.2007); United States v. West, 458 F.3d 1 (D.C.Cir.2006). Although the practice generates needless appeals, the court is not prepared — yet—to say upon the basis of these five cases that asking compound questions is per se an abuse of discretion.
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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JUDGMENT
PER CURIAM.
This appeal was considered on the record from the United States District Court for the District of Columbia and on the briefs 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 order filed July 29, 2009, be affirmed. The district court did not abuse its discretion in dismissing appellant’s complaint without prejudice for noncompliance with Fed.R.Civ.P. 8(a). See, e.g., Ciralsky v. CIA 355 F.3d 661, 668 (D.C.Cir.2004).
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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JUDGMENT
PER CURIAM.
This case was considered on the record from the United States District Court for the District of Columbia and on the briefs and arguments by counsel. It is
ORDERED and ADJUDGED that the judgment of the district court be affirmed. The district court did not abuse its discretion in denying Basu’s motion to withdraw his guilty plea, since Basu failed to show that the plea was tainted by any constitutional or procedural error. See United States v. Cray, 47 F.3d 1203, 1207 (D.C.Cir.1995) (“[W]e have never held that a district court abused its discretion in denying a motion to withdraw a guilty plea where the defendant failed to show some defect in the taking of his plea under Rule 11.”).
Basu asserted “taint” arising from “his need to act hastily and the encouragement of his counsel to accept the plea package in its totality” and the fact that Basu “did not fully understand the requirement of criminal intent.” Defs Mot. Withdraw His Guilty Plea 3. But the presence of a deadline does not, without more, render a plea involuntary. Moreover, advice of counsel that pleading guilty would be beneficial does not render a plea involuntary, absent a showing that the counsel’s performance was so deficient as to constitute ineffective assistance. See In re Sealed Case, 488 F.3d 1011, 1015 (D.C.Cir.2007) (“‘[T]he voluntariness of the plea depends on whether counsel’s advice’ satisfies the Sixth Amendment guarantee of effective assistance.” (quoting Hill v. Lockhart, 474 U.S. 52, 56, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985))). Consequently, Basu’s attack on *189his counsel’s advice to plead guilty merges into his ineffective assistance of counsel claim.
On that claim, we agree with the district court that Basu failed to make any showing that his counsel’s performance might have been deficient. The only advice of counsel alluded to in Basu’s affidavit accompanying the motion to withdraw was the alleged advice that Basu’s statements to authorities “placed [him] in a position where ... [he] would have no chance at trial,” so that he was in effect compelled “to plead guilty to facts that were simply not true.” But the fact that Basu’s attorney advised him that he had no chance at trial is insufficient to rebut the “strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In light of Basu’s detailed incriminating statements to authorities, Basu’s lawyer could have concluded, in the exercise of his professional judgment, that Basu’s chances of success at trial were slim. Consequently, “even if [defense counsel] did [advise the defendant his ease was ‘hopeless’], we do not believe that such an assessment fell outside ‘the range of competence demanded of attorneys in criminal cases.’ ” United States v. Curry, 494 F.3d 1124, 1130 (D.C.Cir.2007) (quoting Hill, 474 U.S. at 56, 106 S.Ct. 366).
For the same reason, the district court acted within its discretion in denying Basu’s request to hold an evidentiary hearing. Because Basu’s allegations, even if true, did not make out “any cognizable claim for” ineffective assistance of counsel or any other ground for relief from the guilty plea, no hearing was necessary to resolve Basu’s motion. See United States v. Taylor, 139 F.3d 924, 933 (D.C.Cir.1998) (noting that denial of a motion to withdraw a plea without holding an evidentiary hearing may be proper when the motion “fail[s] to allege sufficient facts or circumstances ‘upon which the elements of constitutionally deficient [assistance of counsel] might properly be found’ ” (quoting United States v. Pinkney, 543 F.2d 908, 916 (D.C.Cir.1976))).
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 rehearing en banc. See Fed. R.App. P. 41(b); D.C.Cir. R. 41.
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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 July 22, 2009, 2009 WL 2216787, order be affirmed. The district court correctly concluded that appellant’s complaint was frivolous. See Best v. Kelly, 39 F.3d 328 (D.C.Cir.1994). Moreover, appellant’s complaint in No. 09-cv-214 was dismissed for lack of subject matter jurisdiction, pursuant to Fed.R.Civ.P. 12(b)(1), on the ground that his claims were wholly insubstantial. See Riles v. Geithner, — F.Supp.2d ——, 2009 WL 1886214 (D.D.C.2009). Because appellant’s complaint in this case presents the same jurisdictional issue, he is precluded from asserting that the district court has jurisdiction to grant the relief he requests. See GAF Corp. v. United States, 818 F.2d 901, 912 (D.C.Cir.1987) (“The judgment ordering dismissal will ... have preclusive effect as to matters actually adjudicated; it will, for example, preclude relitigation of the precise issue of jurisdiction that led to the initial dismissal.”). Regarding appellant’s contention that the district court judge should be recused, appellant has failed to allege a valid basis for recusal. See Liteky v. Unit*193ed States, 510 U.S. 540, 555, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994) (judicial rulings alone almost never constitute a valid basis for a bias or partiality motion); Rafferty v. NYNEX Corp., 60 F.3d 844 (D.C.Cir.1995) (no bias shown where party’s inference of bias, based on unfavorable judicial rulings and from court delays, was not supported by evidence).
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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JUDGMENT
PER CURIAM.
This petition for writ of mandamus was presented to the court, and briefed and argued by counsel. The court has accorded the issues full consideration and has determined they do not warrant a published opinion. See D.C.Cir. Rule 36(d). It is
ORDERED and ADJUDGED that the petition for writ of mandamus be denied.
The United States alleges that petitioner violated the False Claims Act, 31 U.S.C. §§ 3729-33, by making fraudulent representations on its pre-qualification documents in order to obtain a contract funded by the U.S. Agency for International Development (“USAID”) and by fraudulently billing USAID for work performed in violation of that contract. In 2004, petitioner *194filed a motion to dismiss the complaint pursuant to Federal Rules of Civil Procedure 12(b)(2), (3), and (6), and, in the alternative, to transfer the case, pursuant to 28 U.S.C. §§ 1404(a) and 1406(a), to Mobile, Alabama, where its principal place of business is located. In 2009, the district court denied the motion and petitioner’s motion for reconsideration. Petitioner then filed a petition for a writ of mandamus to direct the district court to transfer the case or hold a hearing on the issue. We deny the writ.
Mandamus is an extraordinary remedy, justified only by “exceptional circumstances amounting to a judicial usurpation of power, or a clear abuse of discretion.” Cheney v. U.S. Dist. Court for the Dist. of Columbia, 542 U.S. 367, 380, 124 S.Ct. 2576, 159 L.Ed.2d 459 (2004) (internal citations and quotation marks omitted). Generally the writ will not issue unless no other adequate remedy is available, there is a clear right in the petitioner to the relief sought, and the issuing court is satisfied that the writ is appropriate under the circumstances. Id. at 380-81, 124 S.Ct. 2576. The writ will only issue “to compel the performance of a ‘clear nondiscretionary duty.’ ” Pittston Coal Group v. Sebben, 488 U.S. 105, 121, 109 S.Ct. 414, 102 L.Ed.2d 408 (1988) (quoting Heckler v. Ringer, 466 U.S. 602, 616, 104 S.Ct. 2013, 80 L.Ed.2d 622 (1984)). The requirement of a clear duty is inimical to a discretionary determination that is vested in the district court. See Ganem v. Heckler, 746 F.2d 844, 853 (D.C.Cir.1984) (quoting Work v. United States ex rel. Rives, 267 U.S. 175, 177, 45 S.Ct. 252, 69 L.Ed. 561 (1925)).
The False Claims Act provides that venue is proper wherever a defendant “transacts business.” 31 U.S.C. § 3732(a). The district court relied on four facts in finding that personal jurisdiction and venue were proper: (1) Petitioner’s contract denoted USAID’s substantial oversight role; (2) Petitioner sent the allegedly false pre-qualification documents and pay certifications to the District of Columbia for USAID approval and payment; (3) USAID wire-transferred funds from the District of Columbia directly to petitioner; and (4) Petitioner had numerous business dealings with federal entities headquartered in the District of Columbia. Mem. Op. at 4-5. Whether or not the ruling is correct, it does not raise a question that should be resolved pursuant to a writ of mandamus. See Kerr v. U.S. Dist. Court for the N. Dist. of Cal. 426 U.S. 394, 403, 96 S.Ct. 2119, 48 L.Ed.2d 725 (1976) (stating “the writ will issue only in extraordinary circumstances” when “the party seeking issuance of the writ ha[s] no other adequate means to attain the relief he desires” and the “right to issuance of the writ is clear and indisputable”) (internal citations and quotation marks omitted). The district court was not clearly wrong in its decision on personal jurisdiction, and any issue regarding that matter can be raised on appeal.
The decision whether or not to transfer the case to another judicial district pursuant to 28 U.S.C. § 1404(a) is discretionary. A transfer in derogation of proper venue in the District of Columbia must be justified by particular circumstances that render the forum inappropriate by reference to considerations specified in the statute. Starnes v. McGuire, 512 F.2d 918, 925-26 (D.C.Cir.1974) (en banc). Petitioner contends the district court “gave overriding weight to an improper factor,” Petition at 12, namely that the case was four years old as a result of the delay in acting on its motion to dismiss or transfer the case. However, petitioner’s reliance on a statement considering its motion for reconsideration overlooks the district court’s findings in initially denying *195petitioner’s motion and the district court’s statement that the case could have been brought in Alabama but the plaintiffs choice of forum was due deference. It also overlooks the district court’s observation that it saw nothing new in petitioner’s motion for reconsideration. Considering the age of the case implicitly invokes public interest considerations, 28 U.S.C. § 1404(a) (interest of justice); see Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508-09, 67 S.Ct. 839, 91 L.Ed. 1055 (1947), and is not the sort of improper “personal convenience” factor that the court addressed in issuing a writ of mandamus to prevent the sua sponte transfer of a case overriding the plaintiffs choice of forum, see In re Scott, 709 F.2d 717, 721 (D.C.Cir.1983) (per curiam). Here the factors relevant to transfer were addressed in the parties’ pleadings. Assuming the district court should have provided a record to show it had considered each of the transfer factors, see Scott, 709 F.2d at 718 n. 4, 720, as in the cases it cited, Mem. Op. at 6 (citing Sierra Club v. Van Antwerp, 523 F.Supp.2d 5 (D.D.C.2007); DeLoach v. Philip Morris Cos., Inc., 132 F.Supp.2d 22 (D.D.C.2000)), petitioner still fails to show that the district court usurped power by retaining the case in this judicial district or clearly abused its discretion in a manner to warrant extraordinary relief by mandamus.
Pursuant to D.C. Circuit Rule 36, this disposition will not be published.
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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 the briefs and oral arguments of the parties. Although the issues presented occasion no need for a published opinion, they have been accorded full consideration by the Court. See Fed. R.App. P. 36; D.C.Cir. Rule 36(d). For the reasons stated below, it is
ORDERED and ADJUDGED that the judgment of the district court be affirmed.
First, the evidence was sufficient to support Simms’s conviction. The Government *196introduced evidence fully supporting each element of the offense. Although the Government’s primary witness was impeached, determining the credibility of witnesses is a matter for the jury. E.g., United States v. Foster, 557 F.3d 650, 655 (D.C.Cir.2009).
Second, the district court’s use of compound questions was not, in this case, an abuse of discretion. Simms acknowledges he cannot show substantial prejudice as a result of the compound questions but attributes that to the nature of such questions and therefore asks the court to hold they are per se an abuse of discretion.
This court has repeatedly noted that compound questions are inappropriate and has warned the district judge against using them. See United States v. Moulding, 557 F.3d 658 (D.C.Cir.2009); United States v. Harris, 515 F.3d 1307 (D.C.Cir.2008); United States v. Littlejohn, 489 F.3d 1335 (D.C.Cir.2007); United States v. West, 458 F.3d 1 (D.C.Cir.2006). Although the practice generates needless appeals, the court is not prepared — yet—to say upon the basis of these five cases that asking compound questions is per se an abuse of discretion.
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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JUDGMENT
PER CURIAM.
This case was considered on the record from the United States District Court for the District of Columbia and on the briefs of the parties pursuant to D.C. Circuit Rule 34(j). For the reasons stated below, it is
ORDERED that the judgment of the district court be affirmed.
Connie Reshard appeals the district court’s grant of summary judgment to the Department of Transportation (DOT) on her employment discrimination and retaliation claims. She alleges that her non-selection for the position of Director of the Office of Economic and Strategic Analysis constituted discrimination on the basis of race and sex, in violation of Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. §§ 2000e et seq., and on the basis of age, in violation of the Age Discrimination and Employment Act, 29 U.S.C. §§ 621 et seq. She also alleges that her non-selection constituted retaliation, in violation of Title VII, for an earlier lawsuit — also alleging employment discrimination — which she has pursued against DOT since 1987.
Reshard’s claims fail because she has not shown that DOT’s proffered non-discriminatory and non-retaliatory reason for not selecting her — that she was not the most qualified candidate — is pretextual. See Brady v. Office of Sergeant at Arms, 520 F.3d 490, 494 (D.C.Cir.2008) (once “an employer has asserted a legitimate, nondiscriminatory reason” for adverse employment action, there remains but one “central question: Has the employee produced sufficient evidence for a reasonable jury to find that the employer’s asserted non-discriminatory reason was not the actual reason and that the employer intentionally discriminated against the employee”); see also Jones v. Bernanke, 557 F.3d 670, 678 (D.C.Cir.2009) (applying Brady to retaliation claim). The record makes clear that the successful candidate was more qualified for the position than Reshard in terms of education, prior experience and responsiveness to enumerated job requirements. No reasonable juror could find discrimination or retaliation under these circumstances. Relatedly, the district court did not abuse its discretion in denying Reshard discovery, as she gives no sufficient reason to believe that discovery would aid her case. -See, e.g., Carpenter v. Fed. Nat’l Mortgage Ass’n, 174 F.3d 231, 237 (D.C.Cir.1999) (discovery denial not abuse of discretion if plaintiff fails to identify facts that would create triable issue); Bastin v. Fed. Nat’l Mortgage Ass’n, 104 F.3d 1392, 1396 (D.C.Cir.1997) (discovery denial not abuse of discretion if plaintiff is “unable to offer anything but rank speculation to support” her claim and if discovery “would amount to nothing more than a fishing expedition”); Strang v. U.S. Arms Control & Disarmament Agency, 864 F.2d 859, 861 (D.C.Cir.1989) (discovery denial *198not abuse of discretion if request based solely on “desire to test and elaborate affiants’ testimony”) (internal quotation omitted).
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 rehearing en banc. See Fed. R.App. P. 41(b); D.C.Cir. Rule 41.
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ORDER
The appellant having failed to pay the docketing fee required by Federal Circuit Rule 52(a)(1) within the time permitted by the rules, it is
ORDERED that the notice of appeal be, and the same hereby is, DISMISSED, for failure to prosecute in accordance with the rules.
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JUDGMENT
PER CURLAM.
This appeal was considered on the record from the United States District Court for the District of Columbia and on the brief filed by the appellant. See Fed. R.App. P. 84(a)(2); D.C.Cir. Rule 34(j). It is
ORDERED AND ADJUDGED that the district court’s order filed July 31, 2009, 2009 WL 2367574 be affirmed. Appellant’s collateral attack on his conviction and sentence must be pursued through a motion to vacate his sentence pursuant to 28 U.S.C. § 2255 filed in the court in which he was convicted and sentenced— the United States District Court for the Southern District of West Virginia. Although “the savings clause of [28 U.S.C.] § 2255 provides that if the ‘remedy by motion is inadequate or ineffective to test the legality of his detention,’ the prisoner may utilize [28 U.S.C.] § 2241 to collaterally attack the legality of his conviction or sentence,” In re Smith, 285 F.3d 6, 8 (D.C.Cir.2002) (quoting 28 U.S.C. § 2255(e)), appellant has not demonstrated that his remedy was “inadequate or ineffective.” In any event, the appropriate forum for a habeas petition is the district in which appellant was confined. See id.; Chatman-Bey v. Thornburgh, 864 F.2d 804, 806 n. 1 (D.C.Cir.1988) (en banc).
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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PER CURIAM.
JUDGMENT
This appeal was considered on the record from the United States District Court for the District of Columbia and the briefs and oral arguments of the parties. For the reasons stated below, it is
ORDERED and ADJUDGED that the judgment of the District Court be affirmed.
Chappell-Johnson applied for a position as a Human Resources Specialist at the Federal Deposit Insurance Corporation and was not selected. She alleges that her non-selection was the result of discrimination based on age and sex and constituted retaliation for her filing of a prior discrimination complaint. FDIC asserts that Chappell-Johnson was not selected because none of the members of the interview panel viewed her as one of the top two candidates. Because FDIC offers a legitimate non-discriminatory reason for its hiring decision, Chappell-Johnson — in order to overcome summary judgment— must produce “sufficient evidence for a reasonable jury to find that” FDIC’s “asserted non-discriminatory reason was not the actual reason” and that FDIC “intentionally discriminated against” her. Brady v. Office of Sergeant at Arms, 520 F.3d 490, 494 (D.C.Cir.2008).
Chappell-Johnson attempts to meet this burden by providing evidence suggesting that FDIC’s proffered reason was merely pretext. See George v. Leavitt, 407 F.3d 405, 413 (D.C.Cir.2005). First, ChappellJohnson argues that FDIC violated its own hiring procedures because the selecting official did not participate in the initial interview process. Significant departures from normal hiring procedures can constitute evidence supporting a finding of discriminatory intent, Johnson v. Lehman, 679 F.2d 918, 922 (D.C.Cir.1982), but FDIC guidelines state that the selecting official “should participate in the interviews” — not that she must. J.A. at 104. Second, Chappell-Johnson asserts that she was more qualified than the individual ultimately selected for the HR Specialist position. But the record does not show that Chappell-Johnson was better qualified, much less “significantly better qualified,” for the job than the person selected, as required by our precedents. Holcomb v. Powell, 433 F.3d 889, 897 (D.C.Cir.2006). Third, Chappell-Johnson contends that subjective factors like communication skills were relied on in making the hiring decision. But there is no bar to considering subjective factors; moreover, oral and written communication skills were two traits specifically enumerated in the hiring announcement as being necessary to selection for the position. J.A. at 181; see Jackson v. Gonzales, 496 F.3d 703, 709 (D.C.Cir.2007). Fourth, in support of her retaliation claim, Chappell-Johnson points *202to the fact that the selecting official was aware that she had filed a previous discrimination complaint with FDIC. But Chappell-Johnson was no longer in consideration for the position by the time that selecting official became involved. The hiring committee had already narrowed the pool to two applicants at that point and Chappell-Johnson was not one of them. Finally, Chappell-Johnson asserts that the selecting official made conflicting statements with respect to her knowledge of Chappell-Johnsoris prior discrimination complaints at FDIC. But a thorough reading of the record does not reveal any material discrepancies. In short, ChappellJohnson has not produced evidence sufficient to allow a reasonable jury to conclude that her non-selection was the product of discrimination or retaliation.
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 rehearing en banc. See Fed. R.App. P. 41(b); D.C.Cir. R. 41(b).
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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 the briefs and oral arguments of the parties. For the reasons stated below, it is
ORDERED and ADJUDGED that the judgment of the District Court be affirmed.
Chappell-Johnson applied for a position as a Human Resources Specialist at the Federal Deposit Insurance Corporation and was not selected. She alleges that her non-selection was the result of discrimination based on race and age and constituted retaliation for her filing of a prior discrimination complaint. FDIC asserts that Chappell-Johnson was not selected because no one involved in the hiring process viewed her as the strongest candidate. Because FDIC offers a legitimate nondiscriminatory reason for its hiring decision, Chappell-Johnson — in order to overcome summary judgment — must produce “sufficient evidence for a reasonable jury to find that” FDIC’s “asserted non-discriminatory reason was not the actual reason” and that FDIC “intentionally discriminated against” her. Brady v. Office of Sergeant at Arms, 520 F.3d 490, 494 (D.C.Cir.2008).
Chappell-Johnson attempts to meet this burden by providing evidence suggesting that FDIC’s proffered reason was merely pretext. See George v. Leavitt, 407 F.3d 405, 413 (D.C.Cir.2005). First, ChappellJohnson asserts that she was more qualified than the individual ultimately selected for the HR Specialist position. But the record does not show that Chappell-Johnson was better qualified, much less “significantly better qualified,” for the job than the person selected, as required by our precedents. Holcomb v. Powell, 433 F.3d 889, 897 (D.C.Cir.2006). Second, Chappell-Johnson argues that the selecting official had already identified her preferred candidate before the hiring process began. There is no indication in the record, however, that the selecting official preselected a candidate for the HR Specialist position. Third, Chappell-Johnson asserts that it was discriminatory for the selecting official to check the references only of the individuals identified as the top two candidates by the hiring committee. Significant departures from normal hiring procedures can constitute evidence supporting a finding of discriminatory intent, Johnson v. Lehman, 679 F.2d 918, 922 (D.C.Cir.1982), but FDIC is not required by the law or its own procedures to check the references of every candidate that applies for a job. Finally, Chappell-Johnson points to conflicts in the testimony of the individuals involved in making the hiring decision as calling into question the veracity of those individuals. Even assuming those conflicts exist, they are immaterial and do not provide support for finding that the committee’s hiring decision was discriminatory. In short, Chappell-Johnson has not produced evidence sufficient to allow a reasonable jury to conclude that her non-selection was the product of discrimination or retaliation.
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 re*204hearing or rehearing en banc. See Fed. R.App. P. 41(b); D.C.Cir. R. 41(b).
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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 briefs filed by the parties. 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 September 23, 2008, 577 F.Supp.2d 439, and January 28, 2009, 594 F.Supp.2d 28, be affirmed. The district court properly granted summary judgment to appellee George Washington University (“the University”) with respect to appellant’s sole claim that survived the motion to dismiss. *206See Czekalski v. Peters, 475 F.3d 360, 363 (D.C.Cir.2007). Appellant has failed to state a plausible claim for relief with respect to his other claims, because he has not identified any provision of the Faculty Code that the University’s conduct violated. Ashcroft v. Iqbal, — U.S. ---, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). Furthermore, he has failed to state a claim for breach of contract as to the individual appellees, because he has not identified any binding contract between himself and those appellees. See Rittenberg v. Donohoe Constr. Co., 426 A.2d 338, 341 (D.C.1981). Finally, Appellant has not shown that the district court abused its discretion in denying his motion for leave to file an amended complaint. Belizan v. Hershon, 434 F.3d 579, 582 (D.C.Cir.2006).
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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ORDER
The appellant having failed to pay the docketing fee required by Federal Circuit Rule 52(a)(1) within the time permitted by the rules, it is
ORDERED that the notice of appeal be, and the same hereby is, DISMISSED, for failure to prosecute in accordance with the rules.
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JUDGMENT
PER CURLAM.
This appeal was considered on the record from the United States District Court for the District of Columbia and on the brief filed by the appellant. See Fed. R.App. P. 84(a)(2); D.C.Cir. Rule 34(j). It is
ORDERED AND ADJUDGED that the district court’s order filed July 31, 2009, 2009 WL 2367574 be affirmed. Appellant’s collateral attack on his conviction and sentence must be pursued through a motion to vacate his sentence pursuant to 28 U.S.C. § 2255 filed in the court in which he was convicted and sentenced— the United States District Court for the Southern District of West Virginia. Although “the savings clause of [28 U.S.C.] § 2255 provides that if the ‘remedy by motion is inadequate or ineffective to test the legality of his detention,’ the prisoner may utilize [28 U.S.C.] § 2241 to collaterally attack the legality of his conviction or sentence,” In re Smith, 285 F.3d 6, 8 (D.C.Cir.2002) (quoting 28 U.S.C. § 2255(e)), appellant has not demonstrated that his remedy was “inadequate or ineffective.” In any event, the appropriate forum for a habeas petition is the district in which appellant was confined. See id.; Chatman-Bey v. Thornburgh, 864 F.2d 804, 806 n. 1 (D.C.Cir.1988) (en banc).
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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*200
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 13, 2009 in No. 09cv0677, and April 23, 2009 in No. 09cv0276 be affirmed. The appellant has not provided any basis for mandamus relief in the district court. See Heckler v. Ringer, 466 U.S. 602, 616, 104 S.Ct. 2013, 80 L.Ed.2d 622 (1984) (noting that a party seeking a writ of mandamus under 28 U.S.C. § 1361 must show that he has “exhausted all other avenues of relief’ and that “the defendant owes him a clear non-discretionary duty”). Nor does appellant’s petition for “eloignment,” to the extent it is clear what relief it seeks, provide any legal basis for relief. Finally, this court lacks jurisdiction to issue a writ of mandamus under 28 U.S.C. § 1651 because we have no appellate jurisdiction “past, present, or future” over the underlying case in the Northern District of Florida. In re Stone, 569 F.2d 156, 157 (D.C.Cir.1978) (holding that the court lacked jurisdiction under § 1651 to issue a writ of mandamus to the U.S. Tax Court).
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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PER CURIAM.
JUDGMENT
This appeal was considered on the record from the United States District Court for the District of Columbia and the briefs and oral arguments of the parties. For the reasons stated below, it is
ORDERED and ADJUDGED that the judgment of the District Court be affirmed.
Chappell-Johnson applied for a position as a Human Resources Specialist at the Federal Deposit Insurance Corporation and was not selected. She alleges that her non-selection was the result of discrimination based on age and sex and constituted retaliation for her filing of a prior discrimination complaint. FDIC asserts that Chappell-Johnson was not selected because none of the members of the interview panel viewed her as one of the top two candidates. Because FDIC offers a legitimate non-discriminatory reason for its hiring decision, Chappell-Johnson — in order to overcome summary judgment— must produce “sufficient evidence for a reasonable jury to find that” FDIC’s “asserted non-discriminatory reason was not the actual reason” and that FDIC “intentionally discriminated against” her. Brady v. Office of Sergeant at Arms, 520 F.3d 490, 494 (D.C.Cir.2008).
Chappell-Johnson attempts to meet this burden by providing evidence suggesting that FDIC’s proffered reason was merely pretext. See George v. Leavitt, 407 F.3d 405, 413 (D.C.Cir.2005). First, ChappellJohnson argues that FDIC violated its own hiring procedures because the selecting official did not participate in the initial interview process. Significant departures from normal hiring procedures can constitute evidence supporting a finding of discriminatory intent, Johnson v. Lehman, 679 F.2d 918, 922 (D.C.Cir.1982), but FDIC guidelines state that the selecting official “should participate in the interviews” — not that she must. J.A. at 104. Second, Chappell-Johnson asserts that she was more qualified than the individual ultimately selected for the HR Specialist position. But the record does not show that Chappell-Johnson was better qualified, much less “significantly better qualified,” for the job than the person selected, as required by our precedents. Holcomb v. Powell, 433 F.3d 889, 897 (D.C.Cir.2006). Third, Chappell-Johnson contends that subjective factors like communication skills were relied on in making the hiring decision. But there is no bar to considering subjective factors; moreover, oral and written communication skills were two traits specifically enumerated in the hiring announcement as being necessary to selection for the position. J.A. at 181; see Jackson v. Gonzales, 496 F.3d 703, 709 (D.C.Cir.2007). Fourth, in support of her retaliation claim, Chappell-Johnson points *202to the fact that the selecting official was aware that she had filed a previous discrimination complaint with FDIC. But Chappell-Johnson was no longer in consideration for the position by the time that selecting official became involved. The hiring committee had already narrowed the pool to two applicants at that point and Chappell-Johnson was not one of them. Finally, Chappell-Johnson asserts that the selecting official made conflicting statements with respect to her knowledge of Chappell-Johnsoris prior discrimination complaints at FDIC. But a thorough reading of the record does not reveal any material discrepancies. In short, ChappellJohnson has not produced evidence sufficient to allow a reasonable jury to conclude that her non-selection was the product of discrimination or retaliation.
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 rehearing en banc. See Fed. R.App. P. 41(b); D.C.Cir. R. 41(b).
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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 the briefs and oral arguments of the parties. For the reasons stated below, it is
ORDERED and ADJUDGED that the judgment of the District Court be affirmed.
Chappell-Johnson applied for a position as a Human Resources Specialist at the Federal Deposit Insurance Corporation and was not selected. She alleges that her non-selection was the result of discrimination based on race and age and constituted retaliation for her filing of a prior discrimination complaint. FDIC asserts that Chappell-Johnson was not selected because no one involved in the hiring process viewed her as the strongest candidate. Because FDIC offers a legitimate nondiscriminatory reason for its hiring decision, Chappell-Johnson — in order to overcome summary judgment — must produce “sufficient evidence for a reasonable jury to find that” FDIC’s “asserted non-discriminatory reason was not the actual reason” and that FDIC “intentionally discriminated against” her. Brady v. Office of Sergeant at Arms, 520 F.3d 490, 494 (D.C.Cir.2008).
Chappell-Johnson attempts to meet this burden by providing evidence suggesting that FDIC’s proffered reason was merely pretext. See George v. Leavitt, 407 F.3d 405, 413 (D.C.Cir.2005). First, ChappellJohnson asserts that she was more qualified than the individual ultimately selected for the HR Specialist position. But the record does not show that Chappell-Johnson was better qualified, much less “significantly better qualified,” for the job than the person selected, as required by our precedents. Holcomb v. Powell, 433 F.3d 889, 897 (D.C.Cir.2006). Second, Chappell-Johnson argues that the selecting official had already identified her preferred candidate before the hiring process began. There is no indication in the record, however, that the selecting official preselected a candidate for the HR Specialist position. Third, Chappell-Johnson asserts that it was discriminatory for the selecting official to check the references only of the individuals identified as the top two candidates by the hiring committee. Significant departures from normal hiring procedures can constitute evidence supporting a finding of discriminatory intent, Johnson v. Lehman, 679 F.2d 918, 922 (D.C.Cir.1982), but FDIC is not required by the law or its own procedures to check the references of every candidate that applies for a job. Finally, Chappell-Johnson points to conflicts in the testimony of the individuals involved in making the hiring decision as calling into question the veracity of those individuals. Even assuming those conflicts exist, they are immaterial and do not provide support for finding that the committee’s hiring decision was discriminatory. In short, Chappell-Johnson has not produced evidence sufficient to allow a reasonable jury to conclude that her non-selection was the product of discrimination or retaliation.
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 re*204hearing or rehearing en banc. See Fed. R.App. P. 41(b); D.C.Cir. R. 41(b).
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JUDGMENT
PER CURIAM.
This appeal from a judgment of the United States District Court for the District of Columbia was presented to the court, and briefed and argued by counsel. The court has accorded the issues full consideration and has determined that they do not warrant a published opinion. It is
ORDERED AND ADJUDGED that the judgment of conviction be affirmed.
Appellant appeals his conviction upon a plea to one count of distributing 500 grams or more of cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(l)(B)(ii). He contends the district court misapplied United States Sentencing Guidelines § 3B1.2 in denying him a downward departure for his minor role in the offense. However, the district court stated that “even if [it] had ruled that [appellant] was entitled to a role adjustment, the sentence is going to be different.” Sentencing Tr. 30-31, Nov. 25, 2008.
The district court noted that appellant’s Guidelines range was 37 to 46 months, and with a two-point reduction for his minor role the range would be 30 to 37 months. Upon departing downward pursuant to United States v. Smith, 27 F.3d 649 (D.C.Cir.1994), in view of appellant’s status as a deportable alien, and in consideration of the factors under 18 U.S.C. § 3553(a), the district court imposed a sentence of 24 months’ imprisonment, with credit for time served, five years’ supervised release, and a $100 special assessment. The district court waived imposition of a fine in view of appellant’s inability to pay the fine, and dismissed the remaining count of the indictment.
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 rehearing en banc. See Fed. R.App. P. 41(b); D.C.Cir. Rule 41.
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ORDER
The parties having so agreed, it is
ORDERED that the proceeding is DISMISSED under Fed. RApp. P. 42(b).
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JUDGMENT
PER CURIAM.
This appeal was considered upon the briefs and the appendices filed by the parties. See Fed. R.App. P. 34(a)(2); D.C.Cir. Rule 34(j). It is
ORDERED AND ADJUDGED that the sentence imposed by the district court be affirmed.
The district court properly calculated the Guidelines range and considered the sentencing factors in 18 U.S.C. § 3553(a), and it did not abuse its discretion in imposing a final sentence of 108 months — within the statutory maximum sentence of 120 months — consecutive to the 15-year sentence imposed by the D.C. Superior Court. The court’s reliance upon the fact of the appellant’s prior convictions did not violate the appellant’s rights under the Fifth and Sixth Amendments to the Constitution of the United States. See United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). The court did not consider any conduct for which the appellant had been acquitted, nor would such consideration have violated the appellant’s constitutional rights. See United States v. Settles, 530 F.3d 920 (D.C.Cir.2008).
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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*213
SUMMARY ORDER
Plaintiff Joe Frazier appeals from orders of the District Court for the Northern District of New York (Scullin, J.) dismissing claims against certain defendants-appellees and granting summary judgment in favor of other defendants-appellees. We assume the parties’ familiarity with the underlying facts, the procedural history, and the issues presented for review.
The district court correctly ruled that it lacked subject matter jurisdiction to hear this case on either federal question or diversity grounds. Frazier v. Turning Stone Casino, 254 F.Supp.2d 295, 302-05 (N.D.N.Y.2003).* Out of an excess of caution, the district court went on to rule on the merits of the case.
An Indian Tribe is not a citizen of any state for the purposes of diversity jurisdiction. Romanella v. Hayward, 114 F.3d 15, 16 (2d Cir.1997); Frazier, 254 F.Supp.2d at 304. (“[T]he Court cannot assert diversity jurisdiction over this action as long as the Oneida Indian Nation (“Oneida Nation”) and the Casino are Defendants.”). Because an Indian Tribe is not a citizen of any state, the Oneida Nation’s presence as a party bars a federal court from hearing the matter under its diversity jurisdiction. Romanella, 114 F.3d at 16 (“[T]he diversity statute’s provisions for suits between citizens of different states, 28 U.S.C. § 1332(a), strictly construed, cannot be said to embrace suits involving Indian tribes.”); see also Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826, 829, 109 S.Ct. 2218, 104 L.Ed.2d 893 (1989) (holding that one stateless party destroys diversity jurisdiction). This accords with the treatment of other domestic sovereigns, such as states, which cannot sue or be sued in diversity. Romanella, 114 F.3d at 16. Given the continued presence of the Oneida Nation in this suit, the district court lacked subject matter jurisdiction to hear this case. We therefore remand with instructions to dismiss the matter.
Federal Rule of Civil Procedure 21 allows for a court at any stage of a litigation, including a court of appeals on its own authority, to dismiss parties in order to retain diversity jurisdiction. Fed.R.Civ.P. 21 (“Misjoinder of parties is not a ground for dismissing an action. On motion or on its own, the court may at any time, on just terms, add or drop a party.”). Nothing in this provision mandates that a court of appeals take action and neither party has moved for us to do so. We decline to exercise this power here to salvage jurisdiction.
The dismissal of this suit from federal court does not foreclose all relief against the tribe, its casino, and its agents. The Oneida Nation has a trial and appellate court system staffed by former New York Court of Appeals Judges Stewart Hancock and Richard Simons. FACT SHEET: The Oneida Nation Court, http://www. oneidaindiannation.com/pressroom/ factsheets/26965674.html (last visited October 2, 2009). To the extent Frazier has live claims against the tribe, its casino, or the casino’s employees, he could attempt to bring them there.
Frazier does not appeal that this court lacks federal question jurisdiction.
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SUMMARY ORDER
Petitioner Beibei Zhang, a native and citizen of the People’s Republic of China, seeks review of the April 18, 2007 order of the BIA affirming the August 31, 2004 decision of Immigration Judge (“U”) Robert D. Weisel, denying her application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Beibei Zhang, No. A076 106 064 (B.I.A. Apr. 18, 2007), aff'g No. A076 106 064 (Immig. Ct. N.Y. City Aug. 31, 2004). We assume the parties’ familiarity with the underlying facts and procedural history of the case.
When the BIA’s decision closely tracks but does not expressly adopt the IJ’s reasoning, we may consider both decisions “for the sake of completeness.” Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir.2008). When the BIA agrees with the IJ’s decision and supplements that decision, we review the IJ’s decision as supplemented by the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.2005). Questions of law and the application of law to undisputed fact are reviewed de novo. See Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.2008). Factual findings, including adverse credibility determinations, are reviewed for substantial evidence. 8 U.S.C. § 1252(b)(4)(B); Dong Gao v. BIA, 482 F.3d 122, 126 (2d Cir.2007).
As a preliminary matter, we decline to consider Zhang’s allegations that she received ineffective assistance from the attorney who represented her before the agency because she did not first present those claims before the BIA. See Yi Long Yang v. Gonzales, 478 F.3d 133, 142 (2d Cir.2007) (‘We generally require that ineffective assistance [of counsel] claims be *218presented in the first instance to the BIA, either through a motion to reopen or on direct appeal
Zhang argues that the BIA erred in rejecting her attempts to invoke the “state-created danger doctrine” as a basis for relief. Zhang’s argument raises an issue of first impression in this Circuit, but we see no reason to disagree with the BIA’s conclusion, which relies on cases holding that the state-created danger doctrine does not apply in immigration proceedings. See, e.g., Kamara v. Att’y Gen., 420 F.3d 202, 216-18 (3d Cir.2005). Accordingly, we will not disturb the BIA’s conclusion in this regard.
An alien is ineligible for asylum if “there are reasonable grounds for regarding the alien as a danger to the security of the United States.” See 8 U.S.C. § 1158(b)(2)(A)(iv); 8 C.F.R. § 208.13(c)(1). Similarly, an alien is ineligible for withholding of removal if “there are reasonable grounds to believe that the alien is a danger to the security of the United States.” See 8 U.S.C. § 1231(b)(3)(B)(iv); 8 C.F.R. § 1208.16(d)(2). Zhang challenges the agency’s application of the national security bar to her claims for relief, but Zhang’s brief to this Court challenges only one of the agency’s several findings in support of its conclusion that there were reasonable grounds for regarding her as a threat to the security of the United States. She has therefore waived any challenge to the remaining findings. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 n. 1, 545 n. 7 (2d Cir.2005). Moreover, we are unpersuaded by her conclusory argument, unsupported by citations to any legal authority, that the agency erred by basing its application of the national security bar on her testimony and written statements that she knew the nature of her mission in the United States and assisted her cousin in pursuing that mission.
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
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SUMMARY ORDER
Plaintiff Flame S.A. appeals from a March 19, 2009 order of the District Court. While this appeal was sub judice, we decided Shipping Corp. of India Ltd. v. Jaldhi Overseas Pte Ltd., 585 F.3d 58 (2d Cir.2009), in which we overruled Winter Storm Shipping, Ltd. v. TPI, 310 F.3d 263 (2d Cir.2002), and held that electronic fund transfers being processed by intermediary banks are no longer subject to attachment under Rule B. In another recent decision, Hawknet, Ltd. v. Overseas Shipping Agencies, 590 F.3d 87 (2d Cir.2009), we held that our decision in Shipping Corp. of India applies retroactively. Accordingly, we VACATE the District Court’s order and REMAND the matter to the District Court with instructions to enter an order to show cause why it should not dismiss the complaint for lack of personal jurisdiction in light of these recent decisions.
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SUMMARY ORDER
Plaintiffs appeal from an order of the United States District Court for the Southern District of New York (Leisure, /.), dismissing them claims on the ground of forum non conveniens. We assume the parties’ familiarity with the underlying facts, the procedural history, and the issues presented for review.
The opinion accompanying the district court’s order considered both Egypt and Israel as potential alternative fora, and concluded that dismissal was warranted in favor of each forum. Plaintiffs limit their appeal to the district court’s dismissal in favor of Egypt; they do not appeal the order of dismissal insofar as it was predicated upon dismissal in favor of Israel. The portion of the district court’s opinion that Plaintiffs decline to contest, however, is independently adequate to support the order of dismissal. Accordingly, we affirm the district court’s order dismissing Plaintiffs’ claims on the ground of forum non conveniens, and we decline to consider Plaintiffs’ assignments of error because they bear only on the Egyptian forum, and therefore cannot affect our disposition of this appeal.
Nothing in the record suggests the Russian plaintiffs are in any way prevented from asserting their claims in Israel, or in Egypt if they so choose.
Accordingly, we hereby AFFIRM the judgment of the district court.
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OPINION
PER CURIAM.
Thomas Marmolejos, a federal prisoner proceeding pro se and in forma pauperis, appeals from the District Court’s order dismissing his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. Because his appeal presents no substantial question, we will summarily affirm the District Court’s order. See 3d Cir. L.A.R. 27.4; I.O.P. 10.6.
In February 2002, a jury sitting in the United States District Court for the Southern District of New York found Marmolejos guilty of several crimes, including conspiracy to commit robbery and extortion, conspiracy to commit murder-for-hire, and substantive murder-for-hire. The District Judge sentenced him to life imprisonment to be followed by a consecutive ten-year term and three years’ supervised release. Upon review, the United States Court of Appeals for the Second Circuit affirmed the conviction and sentence, and the United States Supreme Court denied Marmolejos’s petition for a writ of certiorari.
In December 2005, Marmolejos sought collateral relief by filing a 28 U.S.C. § 2255 motion, claiming three grounds of ineffective assistance of counsel. As is relevant here, he asserted that his attorney was ineffective for not challenging the sufficiency of the evidence on the murder-for-hire charge. The District Court found the claims to be meritless and denied the motion. The Court of Appeals denied Marmolejos’s request for a certificate of *290appealability, and the Supreme Court denied his petition for a writ of certiorari.
Marmolejos next attempted to obtain relief via a Federal Rule of Civil Procedure 60(b) motion filed with the District Court and a petition for a writ of habeas corpus filed with the United States Supreme Court. Both the motion and the petition were unsuccessful, as was the 28 U.S.C. § 2241 petition that he filed in the United States District Court for the Eastern District of Kentucky.
After Marmolejos was moved to the United States Penitentiary in Canaan, Pennsylvania, he filed a 28 U.S.C. § 2241 petition in the United States District Court for the Middle District of Pennsylvania. Marmolejos asserted that because the government failed to prove the elements of the murder-for-hire charge, he is actually innocent of that charge and of conspiracy to commit murder-for-hire. He also claimed that his due process rights were violated because there was insufficient evidence to convict him of murder-for-hire. The District Court determined that because Marmolejos could have raised the claims in his § 2255 motion, relief under § 2241 was unwarranted. The District Court dismissed the petition for lack of subject matter jurisdiction and this appeal followed.
We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253(a). We exercise plenary review over the District Court’s legal conclusions and apply a clearly erroneous standard to its factual findings. Okereke v. United States, 307 F.3d 117, 119 (3d Cir.2002).
The District Court did not err in dismissing Marmolejos’s petition. A federal prisoner can seek relief under § 2241 only if the remedy provided by § 2255 is inadequate or ineffective to test the legality of his detention. Cradle v. U.S. ex rel. Miner, 290 F.3d 536, 538 (3d Cir.2002); Okereke, 307 F.3d at 120. A § 2255 motion is “inadequate or ineffective” only when some limitation of scope or procedure would prevent the prisoner from receiving adequate adjudication of his claims. Cradle, 290 F.3d at 538. This exception is extremely narrow and has been held to apply only in rare circumstances. See, e.g., In re Dorsainvil, 119 F.3d 245, 251-52 (3d Cir.1997) (applying exception where an intervening change in the law decriminalized the conduct underlying the petitioner’s conviction).
Marmolejos argues that § 2255 is inadequate because, except in certain circumstance, it bars the filing of multiple motions. See 28 U.S.C. § 2255. Although it is likely that Marmolejos would encounter substantive and procedural hurdles in filing a second § 2255 motion, we have repeatedly held that a prisoner’s inability to meet § 2255’s stringent gatekeeping requirements does not render it inadequate or ineffective. Cradle, 290 F.3d at 538-39 (“It is the inefficacy of the remedy, not the personal inability to use it, that is determinative.”).
Marmolejos also appears to claim that § 2241 provides the only means by which to advance his actual innocence claim. This argument is unavailing. Marmolejos’s claim falls within the purview of § 2255, and he identifies neither an intervening change in the law nor any extraordinary circumstances to establish that he could not have presented it in his first § 2255 motion. In fact, citing the same evidence that he cites now, Marmolejos raised the same sufficiency of the evidence issue that underlies his innocence claim (albeit as an ineffective assistance of counsel claim) in his previous § 2255 motion. The District Court thus properly determined that Marmolejos could not advance his claims in a § 2241 petition.
Further, to the extent that the petition could be viewed as a request to file a *291second or successive § 2255 motion, the District Court correctly stated that Marmolejos may only file such an application in the United States Court of Appeals for the Second Circuit. See In re Dorsainvil, 119 F.3d at 249.
For the foregoing reasons, we summarily affirm the District Court’s July 29, 2009 order.
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OPINION
PER CURIAM.
In these consolidated appeals, John R. Oliver appeals pro se from the District Court’s orders dismissing his complaints in two related actions in the United States District Court for the Middle District of Pennsylvania. (M.D. Pa. Civ. Nos. 08-ev-0796; 08-cv-1404.) Oliver also challenges the District Court’s orders denying him leave to amend his complaint and his request for counsel in M.D. Pa. Civ. No. 08-cv-0796, as well as the District Court’s orders denying his request for counsel and “Motion to Stop filing Fees” in M.D. Pa. Civ. No. 08-cv-1404. For the following reasons, we will summarily affirm the District Court’s orders. See 3d Cir. LAR 27.4 (2008); 3d Cir. I.O.P. 10.6.
*299I.
Oliver is currently incarcerated at the State Correctional Institution at Rockview (“SCI-Rockview”) in Bellefonte, Pennsylvania. On April 29, 2008, Oliver commenced a civil rights action pursuant to 42 U.S.C. § 1983 against the following employees of the Pennsylvania Department of Corrections (the “DOC”): Secretary Jeffrey A. Beard; Superintendent Franklin J. Tennis; former Deputy Secretary of Centralized Services Marirosa Lamas; and Dr. Symons, a prison doctor. Oliver also named as defendants several members of the culinary staff at SCI-Rockview: Mr. Capparelle, Mr. Sowash, Mr. Jedrejedzedek and Mr. Winkleman. (M.D. Pa. Civ. No. 08-cv-0796.) In addition, Oliver named three John Doe defendants and one Jane Doe defendant.
In the complaint, Oliver alleged that the defendants violated his Eighth Amendment rights by failing to properly treat an injury to his wrist. Specifically, Oliver alleged that, on January 18, 2008, while he was working in the tray room of the culinary department, he tripped over a cart of trays and fell to the floor. Oliver claimed that he suffered a hairline fracture to his wrist as a result of the fall, and that the treatment he received for his injury was inadequate. Oliver further claimed that defendant Lamas failed to address certain concerns that he had raised about the safety of the tray room before his accident.
The matter was referred to a Magistrate Judge who recommended that the court dismiss Oliver’s claims against all defendants except Dr. Symons for failure to state a claim upon which relief could be granted. See 28 U.S.C. § 1916(e)(2)(B)®. Oliver filed objections to the Magistrate Judge’s Report and Recommendation as well as a motion to amend his complaint. By order entered June 16, 2008, the District Court adopted the report and recommendation, dismissed Oliver’s claims against all defendants but Dr. Symons, and denied Oliver’s motion to amend his complaint.1 As a result, the case proceeded against Dr. Symons only.
The following month, on July 28, 2008, Oliver filed a second complaint in the District Court. (M.D. Pa. Civ. No. 08-1404.) In this complaint, Oliver raised the same claims against the same defendants, with one exception — he did not name Dr. Symons in the second action. Otherwise, however, the complaints in Civ. No. 08-cv-0796 and Civ. No. 08-cv-1404 were nearly identical. By order entered September 10, 2008, the District Court dismissed Oliver’s second complaint for the reasons stated in its order dismissing the same claims against the same defendants in Civ. No. 08-cv-0796. See 28 U.S.C. § 1916(e)(2)(B)®.
Meanwhile, Oliver’s first action proceeded against Dr. Symons. During this time, Oliver filed at least four motions for appointment of counsel. The Magistrate Judge denied each request. Oliver appealed the Magistrate Judge’s decision on his fourth motion to the District Court, but the court agreed with the Magistrate Judge that counsel was not warranted. See Tabron v. Grace, 6 F.3d 147, 155-58 (3d Cir.1993).
In November 2008, Dr. Symons moved to dismiss the complaint on the ground that it failed to state an Eighth Amendment claim against him. See Fed.R.Civ.P. 12(b)(6). Soon thereafter, Oliver again sought leave to amend his complaint. The Magistrate Judge recommended that the District Court deny Oliver’s motion for leave to amend his complaint and grant *300Dr. Symons’s motion to dismiss. The District Court agreed, and, by order entered March 25, 2009, adopted the Magistrate Judge’s Report and Recommendation, denied Oliver’s motion to amend the complaint, and granted Dr. Symons’s motion to dismiss.2
Oliver now appeals from the District Court’s orders in actions 08-CV-0796 and 08-cv-1404.3
II.
A. M.D. Pa. Civ. No. 08-cv-0796
First, we conclude that the District Court properly dismissed the claims against defendants Beard, Tennis, Jedrejedzedek, Winkleman, and Sowash, as well as the claims against the John Doe and Jane Doe defendants, in Oliver’s first complaint. As the District Court and Magistrate Judge explained, Oliver did not allege that any of these defendants were personally involved in the alleged misconduct, as he must in order to hold them liable under § 1983. See Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir.1988) (stating that liability under § 1983 may not be based on the doctrine of respondeat superior). We further conclude that the District Court properly dismissed the claim against defendant Capparelle because his alleged misconduct does not rise to the level of an Eighth Amendment violation. According to Oliver, defendant Capparelle removed him from his work assignment after his fall, took him into his office, and called the medical department to take him in for an evaluation. As the District Court explained, these allegations do not support an Eighth Amendment claim because they do not indicate that defendant Capparelle acted with “deliberate indifference” toward a “substantial risk of serious harm to an inmate.” See Farmer v. Brennan, 511 U.S. 825, 832, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). Similarly, Oliver’s allegations against defendant Lamas — that she had failed to address the safety concerns that Oliver had brought to her attention — do not state an Eighth Amendment claim. See id.
Next, we conclude that the District Court did not err in denying Oliver leave to amend his complaint. With respect to Oliver’s first request, the District Court correctly concluded that amendment would have been futile because the proposed amended complaint suffered from the same defects as his initial complaint. See Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir.2002) (noting that dismissal of case without leave to amend is proper when amendment would be futile). Concerning Oliver’s second request, dismissal was proper because Oliver failed to attach a proposed amended complaint to his motion. See Ranke v. Sanofi-Synthelabo, Inc., 436 F.3d 197, 206 (3d Cir.2006) (holding that failure to submit a draft amended complaint is fatal to a request for leave to amend).
We also conclude that the District Court acted within its discretion in denying Oliver’s motion seeking appointment of counsel because, even assuming that Oliver’s claim against Dr. Symons had arguable merit, none of the remaining Tabron factors weighed in favor of appointing counsel. 6 F.3d at 155. For example, the issues in the case were not particularly complex, and Oliver had demonstrated that he was an able litigator. See id.
*301Finally, we conclude that the District Court properly granted Dr. Symons’s motion to dismiss. As the court noted, Oliver’s allegations reveal that he received ongoing medical care for his injury, including an x-ray of his wrist, a sling to support his arm, and medications to manage his pain. Although Oliver alleged that this treatment was inadequate, disagreement over the proper course of treatment does not amount to a constitutional violation. See Spruill v. Gillis, 372 F.3d 218, 235 (3d Cir.2004).
B. M.D. Pa. Civ. No. 08-cv-1404
As noted above, the District Court dismissed Oliver’s second complaint on the ground that it merely repeated claims that the court had previously dismissed in Civ. No. 08-cv-0796. We have reviewed the complaint filed in 08-cv-1404, and agree with the District Court that it contains the same claims against the same defendants at issue in Civ. No. 08-cv-0796. As discussed above, the District Court’s dismissal of those claims was proper. Therefore, the District Court’s order dismissing Oliver’s second complaint was likewise proper.4
Accordingly, we will summarily affirm the District Court’s orders.5
. Oliver appealed from the District Court's order dismissing his claims against these defendants, but we dismissed his appeal on the ground that the District Court's order was not appealable at that time. (C.A. No. 08-3404.)
. Oliver later filed a motion for reconsideration, which the District Court dismissed as untimely. See Fed.R.Civ.P. 59(e). Oliver has not appealed from the District Court's order.
. We have jurisdiction under 28 U.S.C. § 1291, and exercise plenary review over the District Court’s legal determinations. See Lubrizol Corp. v. Exxon Corp., 929 F.2d 960, 962 (3d Cir.1991).
. In this order, the District Court also dismissed as moot Oliver's outstanding motions for appointment of counsel and to "stop filing fees.” Given our determination that the District Court’s decision to dismiss the complaint was proper, its decision to deny these motions as moot was also proper.
. After the District Court entered its order dismissing Oliver’s complaint, Oliver filed a renewed motion for appointment of counsel and a motion for a temporary restraining order. By order entered October 11, 2009, the District Court referred these motions to this Court. These motions are denied.
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OPINION
PER CURIAM.
Rashford Galloway appeals from an order of the United States District Court for the District of New Jersey, which denied his petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. Because the appeal raises no substantial question, we will affirm the District Court’s order.
Galloway is confined at the Federal Correctional Institution at Fort Dix. He is currently serving a 150-month sentence imposed by the United States District Court for the Western District of North Carolina. Galloway filed this petition pursuant to 28 U.S.C. § 2241 in the United States District Court for the District of New Jersey, the district of his confinement. In his petition Royal asserts that he was not given credit for the time that he was confined at the Northeast Ohio Correctional Center (“NOCC”).1 The District Court dismissed his petition after concluding that Galloway sought relief available under 28 U.S.C. § 2255, and that his petition thus should have been filed in the sentencing court. The District Court held in the alternative that his petition, if construed as a 28 U.S.C. § 2241 petition, should be dismissed because Galloway did not exhaust his administrative remedies.
Galloway’s claim that he should receive credit for time served in NOCC is proper under 28 U.S.C. § 2241 because he is challenging the execution of his sentence. See Queen v. Miner, 530 F.3d 253, 255 n. 2 (3d Cir.2008); Vega v. United States, 493 F.3d 310, 313-14 (3d Cir.2007). However, because Galloway did not exhaust his administrative remedies, as he concedes in his notice of appeal, his petition properly was dismissed for failure to exhaust. See Callwood v. Enos, 230 F.3d 627, 634 (3d Cir.2000) (“we have consistently applied an exhaustion requirement to claims brought under § 2241”).
For the foregoing reasons, we will summarily affirm the order of the District Court.
. The District Court noted that it is unclear whether Galloway spent time at NOCC, but presumed that Galloway had been incarcerated at that facility during his current sentence.
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OPINION
PER CURIAM.
Nazario Burgos, proceeding pro se, filed a civil suit pursuant to 42 U.S.C. §§ 1983, 1985, and 1986 against numerous officials and employees at the State Correctional Institute at Graterford, where he is a prisoner. He presented claims under the First, Fourth, Fifth, Eighth, and Fourteenth Amendments. The District Court, ruling on motions filed by most of the defendants, granted summary judgment on *306each count in favor of all defendants but a defendant named Lieutenant Smith. As the footnote to the District Court’s order reads, “[t]he only remaining defendant is Lieutenant Smith who has failed to move for summary judgment.” Burgos appeals.
After Burgos filed his notice of appeal, he requested an entry of final judgment pursuant to Rule 54(b) (actually his request was not a true Rule 54(b) request, but a request for judgment against the remaining defendant). The District Court denied the request, noting that Burgos could withdraw his claim against Smith so that he could proceed with his appeal.
The first issue is whether Burgos’s appeal should be dismissed for lack of appellate jurisdiction. The answer is no. Although Burgos included claims against Smith in his amended complaint, Smith was never served with process. See District Court Docket Entry No. 87 (noting that the summons was returned unexecuted). Because Smith was not served, he was never a party to the lawsuit within the meaning of Rule 54(b). See United States v. Studivant, 529 F.2d 673, 675 n. 2 (3d Cir.1976). Accordingly, the District Court’s judgment is final (without Burgos withdrawing his claim against Smith), and we have jurisdiction pursuant to 28 U.S.C. § 1291. See id.
Our review of the District Court’s decision to grant summary judgment is plenary. See Abramson v. William Paterson College, 260 F.3d 265, 276 (3d Cir.2001). On review, we will affirm the District Court’s judgment because no substantial issue is presented on appeal. See L.A.R. 27.4; I.O.P. 10.6.
As the parties are familiar with the facts (which were summarized on pages one through five of the District Court’s opinion), we will discuss them as they become relevant to our analysis of Burgos’s claims. We first address his claims of retaliation. To prevail, Burgos had to prove that the conduct that led to the alleged retaliation was constitutionally protected. See Rauser v. Horn, 241 F.3d 330, 333 (3d Cir.2001). He needed also to show that, at the hands of prison officials, he suffered some adverse action sufficient to deter a person of ordinary firmness from exercising his constitutional rights. See id. Burgos also had to prove that his constitutionally protected conduct served as a substantial or motivating factor for the adverse action. See id. Defendants could rebut by showing by a preponderance of the evidence that they would have taken the adverse action even in the absence of the protected activity. See id.
As the District Court did, we accept that Burgos engaged in constitutionally protected activity when he filed his grievances and helped others file lawsuits and grievances, but we conclude that his claims fail for other reasons. Burgos contended that Scott Davies retaliated against him by requiring him to submit to urinalysis testing and threatening to issue a misconduct report if he refused to comply. In this case, the one required urinalysis (also required of many inmates after a report about the odor of marijuana) was not an adverse action. Also, because threats alone do not constitute retaliation, the claim relating to the threat failed. See Maclean v. Secor, 876 F.Supp. 695, 699 (E.D.Pa.1995) (collecting cases). For the same reason, Burgos’s retaliation claims against Kyungkuk Cho, based on unfulfilled threats, did not survive the motion for summary judgment.
Burgos also claimed that Lieutenant M. Doyle retaliated against him by denying or delaying grievances he filed. Doyle presented evidence that he investigated and responded to complaints and a grievance Burgos filed. Burgos himself submitted the grievance and the response. Although Doyle rejected the grievance, he provided evidence that he did so on the *307basis of an investigation. Doyle also admitted that he filed a late response to a grievance simply because he forgot to sign a document. Burgos did not raise a genuine issue of material fact in his opposing declaration relating to reasons for the rejection of the grievance or any delay in a response. Accordingly, as the District Court concluded, the claim for retaliation against Doyle also fails.
Burgos also alleged that Michael Baratta refused to provide him cleaning supplies or to restore running water to his cell after his cell block flooded and the prison cut off water flow to the affected cells in response. Baratta disputed the claims, and Burgos seems to have presented more evidence about his complaints about the water (or lack thereof in his cell) than about the actual absence of water in his cell. Burgos (Second) Decl. ¶ 7 & Collins Decl. ¶ 7 (a fellow inmate’s description of Burgos yelling about a water interruption) & Ex. 2 to Burgos (Second) Decl. (complaining about a four-day denial of hot water in a grievance filed contemporaneously with the incident). However, even taking Burgos’s claims as true, under the undisputed circumstances, namely, an emergency situation within the prison, we agree with the District Court that the temporary inconveniences Burgos suffered did not amount to retaliation.
Burgos also alleged that Adriano Carrete denied him his one-hour recreation period, tampered with his food, intercepted his mail, prevented him from subscribing to the newspaper, and generally threatened and harassed him. As noted above, mere threats do not constitute retaliation. Furthermore, Burgos did not pursue the mail interception claim after he mentioned it in his complaint. Even assuming that Carrete deprived Burgos of his recreation period (a contention that Carrete denied), there is evidence in the record that for the time period in question, Burgos had ample opportunity to exercise when Carrete was not on duty, Carrete Decl. If 6; Burgos Dep. 53:15-17, such that any deprivation caused by Carrete did not rise to the level of an adverse action. Carrete also stated that he did not tamper with Burgos’s food. Burgos tried to counter that claim by falsely stating that Carrete did not deny the allegations, Burgos (First) Decl. ¶ 36, and with the declaration of a fellow inmate. However, the inmate did not aver that Carrete tampered with Burgos’s food. Instead, he stated that he once saw Carrete feed an inmate food with goose feces on it. Collins Decl. ¶ 11. Accordingly, Burgos did not show that there was a genuine issue of material fact. Similarly, he did not dispute the evidence that he had a newspaper subscription during the time in question except for the one month. Rosso Decl. ¶ 4. The defendants also implied that Burgos submitted his cash slip too late for the newspaper. Id. However, even if Carrete somehow interfered with Burgos’s submission of his payment for his newspaper subscription, the interference would not deter a person of ordinary firmness. Accordingly, he did not show that Carrete retaliated against him.
Burgos’s claims against Mary Canino relate to the disciplinary hearing at which he was found guilty, based on the urinalysis results, of marijuana use in prison. After reviewing the evidence in the record, we agree with the District Court that there is no evidence that Canino’s decisions relating to the proceeding or her ultimate decision that Burgos was guilty of misconduct were motivated by any animus for Burgos. Similarly, his retaliation claim against Levi Hosband, Tony Wolfe, CO III Day, and David DiGuglielmo, who reviewed Burgos’s appeal from the misconduct finding, fails because Burgos cannot show that these defendants based their decision on anything other than the hearing record.
*308Lastly, in regards to retaliation, judgment was properly entered in favor of CO I Cuddeback because Burgos did not include specific claims against him and conceded that he had no claims against him. Burgos Dep. 25:4-8. In short, the District Court properly entered judgment in favor of all the defendants on the Burgos’s claims of retaliation.
Burgos also asserted that Canino, DiGuglielmo, Hosband, Day, and Davies violated 42 U.S.C. §§ 1985(2) & (3) and 1986 by intimidating a witness, obstructing justice, and neglecting to prevent a conspiracy. However, Burgos’s claim of witness intimidation failed when he admitted that he was not a witness in any civil litigation, Burgos Dep. 9:1-9. See Malley-Duff & Assoc., Inc. v. Croim Life Ins. Co., 792 F.2d 341, 356 (3d Cir.1986) (setting forth the elements of the cause of action). His charge of obstruction of justice also fell because the evidence on which it was based—a single incident in which Carrete used of a derogatory term when he told another inmate that the derogatory term did not describe him, Carrete Decl. ¶ 8— was not sufficient. See Brawer v. Horowitz, 535 F.2d 830, 840 (3d Cir.1976). His action under § 1985(3) also did not survive the motion for summary judgment because, against the evidence that the defendants did not act or conspire to deprive him of his rights, he only presented his allegations that there was a conspiracy against him. See Fed.R.Civ.P. 56(e)(2); see also Lake v. Arnold, 112 F.3d 682, 685 (3d Cir.1997) (setting forth the requirements for a cause of action under the statute). Because his claims under § 1985(2) & (3) did not survive, his claims under § 1986 could not either. See Brawer, 535 F.2d at 841; Rogin v. Bensalem Twp., 616 F.2d 680, 696 (3d Cir.1980).
The District Court properly entered judgment in favor of the defendants on Burgos’s claim of a conspiracy under § 1983, too. In response to defendants’ evidence that they did not agree to deprive him of a constitutional right, Burgos did not offer sufficient evidence of an agreement. See Parkway Garage, Inc. v. City of Phila., 5 F.3d 685, 700 (3d Cir.1993), overruled on other grounds, UA Theatre Circuit v. Twp. of Warrington, 316 F.3d 392 (3d Cir.2003). As the District Court concluded, his unsubstantiated allegations as to most of the defendants, and his claim that a person who is not a defendant asked Canino not to disclose his urinalysis results for security reasons (and Canino’s compliance with the request), did not constitute proof of a conspiracy. See Capogrosso v. The Supreme Court of New Jersey, 588 F.3d 180, 184-86 (3d Cir.2009). Furthermore, Burgos himself conceded that he never observed the defendants discussing the issues he raised. Burgos Dep. 33:2-7.
Burgos also sued four defendants for violations of the Eighth Amendment’s prohibition on cruel and unusual punishment. As the District Court explained in more detail, even assuming that Burgos was occasionally denied an exercise period by Carrete when he was in the RHU, he did not suffer cruel and unusual punishment in light of the evidence of his ample opportunity to exercise, Carrete Decl. ¶ 6; Burgos Dep. 53:15-17. Any limited deprivation of water and sanitary conditions after a flood at the prison also did not violate Burgos’s Eighth Amendment rights. See Bell v. Wolfish, 441 U.S. 520, 547, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979) (advising wise-ranging deference relating to how they resolve problems that arise in the day-to-day operation of a prison). Furthermore, Burgos’s unsubstantiated claim of emotional harm from being yelled at in a humiliating or demeaning manner for not following orders did not constitute an Eighth Amendment violation.
Burgos also brought an unreasonable intrusion claim under the Fourth *309Amendment against six defendants, alleging that he was forced to submit a urine sample for an unlawful, non-random analysis, the results were used to discipline him, and the disciplinary sanctions were upheld. As the District Court explained, based on the evidence in the record, the testing of Burgos’s urine was part of an investigation into drug use after a prison official smelled marijuana near Burgos’s cell. Given the justification for the testing, we agree with the District Court that under Bell there was no unreasonable intrusion or Fourth Amendment violation. We also agree with the District Court that Burgos’s related state law contract claim relating to the forced testing of his urine is without merit. Also, as did the District Court, we conclude that he is not entitled to just compensation under the Takings Clause for the urine used in the urinalysis.
The District Court also properly granted summary judgment in favor of the defendants on Burgos’s procedural and substantive due process and equal protection claims. First, Burgos did not suffer an atypical or significant hardship when he served 83 days of a 90-day RHU detention for being found guilty of marijuana use in prison. See Griffin v. Vaughn, 112 F.3d 703, 706 (3d Cir.1997). Moreover, the record is rife with evidence that Burgos was afforded due process; he was provided with the charges, he was permitted to retest his urine, and he was made aware of the evidence against him. Canino Decl. ¶¶ 4-9. Also, he was permitted to appeal the decision (which was based on two lab reports indicating marijuana use). Accordingly, the District Court properly granted judgment in favor of the defendants on Burgos’s procedural due process claims. As the District Court concluded, the defendants were also entitled to judgment on the substantive due process claims because not only did Bur-gos not specifically articulate a substantive due process claim, but also to the extent that he alluded to one, it was better considered under other more specific constitutional provisions. See County of Sacramento v. Lewis, 523 U.S. 833, 843, 118 S.Ct. 1708,140 L.Ed.2d 1043 (1998). Lastly,1 Burgos’s claim of a violation of equal protection, based on a broad allegation and no evidence in the face of the defendants’ evidence to the contrary, properly did not survive the defendants’ motion for summary judgment.
In conclusion, for the reasons given above (and for the reasons given by the District Court), the District Court properly granted summary judgment in favor of the defendants. Because no substantial issue is raised on appeal, we will summarily affirm the District Court’s judgment.
. We do not address Burgos’s claims of a First Amendment violation because they were only against a defendant that he dismissed from the action and Smith, who was never served.
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OPINION OF THE COURT
VAN ANTWERPEN, Circuit Judge.
Appellant Kemyah R. Washington’s counsel has filed a motion to withdraw as counsel pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396,18 L.Ed.2d 493 (1967). Washington has filed informal and supplemental pro se briefs in opposition to his counsel’s motion, and the United States has filed a brief in support of counsel’s motion. Because Washington’s counsel has complied with his duties under Anders and because this Court is satisfied there are no non-frivolous issues for direct appeal, we will grant counsel’s motion to withdraw and dismiss the appeal.
I.
Because we write solely for the parties, we will address only those facts necessary to our opinion.
On April 7, 2008, Washington was charged in a one-count information with violating 21 U.S.C. § 841(a) for the intentional and knowing possession of, with intent to distribute, cocaine base. On the same date, Washington entered into a plea agreement with the United States under which he waived his right to a grand jury indictment and agreed to plead guilty to the information. The plea agreement advised Washington that the maximum imprisonment for violating § 841(a) is twenty years.
On April 24, 2008, Washington appeared before the District Court to change his plea to guilty. At this hearing, Judge Rambo conducted a thorough colloquy, explaining to Washington his trial rights and that he would be waiving those rights. After Washington admitted to committing the acts as the government charged, Judge Rambo concluded that Washington’s plea was voluntary and had a basis in fact for all elements of the charge. Consequently, *312the District Court accepted Washington’s guilty plea.
On August 6, 2008, Washington appeared before the District Court for sentencing. After addressing Washington’s objections to the Presentence Investigation Report, the District Court heard argument from the parties and testimony from Washington’s character witnesses. The court imposed a sentence of 175-months’ imprisonment, three years of supervised release, a $500 fíne, a $500 order of community restitution, and a $100 special assessment. Judge Rambo declined the parties’ request for a downward departure for Washington’s cooperation and declined Washington’s request for a downward variance based on his “character as of th[e sentencing] date.”
II.
The District Court had subject matter jurisdiction under 18 U.S.C. § 8281. This Court has appellate jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). We exercise plenary review over an Anders motion. See Penson v. Ohio, 488 U.S. 75, 82-83 & n. 6, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988).
Under Anders, our inquiry is two-fold: (1) whether counsel adequately fulfilled the requirements of Third Circuit Local Appellate Rule 109.2(a),1 and (2) whether an independent review of the record presents any non-frivolous issues. United States v. Coleman, 575 F.3d 316, 319 (3d Cir.2009). Thus, Washington’s counsel must satisfy us that he has thoroughly scoured the record in search of appealable issues and then must explain why those issues are frivolous. Id. Where the Anders brief initially appears adequate on its face, the proper course is for the appellate court to be guided in reviewing the record by the Anders brief itself. See United States v. Youla, 241 F.3d 296, 301 (3d Cir.2001) (dicta). If it is adequate, we confine our review to those portions of the record identified in the Anders brief, as well as issues raised in a defendant’s pro se brief. Id.
III.
Following an unconditional guilty plea, a defendant is limited to only three appeal-able issues: (1) the district court’s jurisdiction, (2) the validity of his or her plea, and (3) the reasonableness and legality of his or her sentence. See Menna v. New York, 423 U.S. 61, 62 n. 2, 63, 96 S.Ct. 241, 46 L.Ed.2d 195 (1975) (per curiam) (concluding that valid guilty plea waives preceding constitutional errors, unless related to court’s power to “hal[e] a defendant into court on a charge”); 18 U.S.C. § 3742(a) (granting appellate court’s authority to review sentences); see also United States v. Broce, 488 U.S. 563, 569, 109 S.Ct. 757, 102 L.Ed.2d 927 (1989) (holding that following unconditional guilty plea, defendant may only collaterally attack validity of plea and *313court’s power to enter conviction or impose sentence).
Washington’s counsel correctly identified these three issues in his Anders brief. In concluding that Washington had no non-frivolous arguments for these issues, counsel recognized applicable precedent, made arguments, and cited to the record to support the arguments that these issues were not meritorious. Accordingly, this Court is satisfied that counsel’s Anders brief is adequate on its face and, therefore, we constrain our review of the record to those portions identified in the Anders brief and Washington’s fro se briefs.
We agree that none of these three issues raises a non-frivolous argument. Both counsel and the United States argue that the District Court had jurisdiction under 18 U.S.C. § 3281. We agree.
Counsel and the United States also argue that Washington’s plea was valid. After a review of the District’s Court’s thorough colloquy with Washington at the change of plea hearing, we concur.
Furthermore, we find that the sentence imposed by the District Court was legal and reasonable and, therefore, this issue presents no meritorious argument. This Court engages in a procedural and substantive review of sentences. See United States v. Lessner, 498 F.3d 185, 203 (3d Cir.2007). Procedurally, the District Court must (1) correctly calculate the applicable Sentencing Guidelines range; (2) formally rule on the motions of both parties and state on the record whether the court is granting a departure and how that departure effects the guidelines range; and (3) consider all of the factors under 18 U.S.C. § 3553(a)2 and adequately explain the chosen sentence in a manner that allows for meaningful appellate court review of the reasonableness of the sentence. See Gall v. United States, 552 U.S. 38, 49-50, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007); United States v. Gunter, 462 F.3d 237, 247 (3d Cir.2006).
Substantively, we must be satisfied that the District Court exercised its discretion by considering the relevant § 3553(a) factors and we must also ascertain whether those factors were reasonably applied to the circumstances of the case.3 See United States v. Cooper, 437 F.3d 324, 329-30 (3d Cir.2006). It is clear to us from the record that the District Court followed the procedural guidelines and gave more than meaningful consideration to the relevant § 3553(a) factors. Moreover, the court did not abuse its discretion by imposing a sentence of 175-months’ imprisonment, which is within the applicable range. Thus, we conclude that the sentence was legal and reasonable.
Having concluded that the three issues correctly raised in counsel’s adequate Anders brief are frivolous, we turn to those Washington raises in his pro se briefs. *314See Youla, 241 F.3d at 301. Washington argues error because (1) of the ineffective assistance of his trial counsel for failure to file a motion to suppress; (2) he was not advised he could be considered a “career offender” for sentencing purposes until after he entered his plea; (3) he is “not guilty”; and (4) the district court lacked jurisdiction to impose a sentence in light of the government’s failure to file a notice pursuant to 21 U.S.C. § 851. None of these claims has arguable merit.
“It has long been the practice of this [Cjourt to defer the issue of ineffectiveness of trial counsel to a collateral attack.” United States v. Thornton, 327 F.3d 268, 271 (3d Cir.2003). This principle applies unless the record is sufficient to allow for determination of the issue. Id. The record in this case is clearly not sufficient to determine whether Washington’s counsel was ineffective for failure to file a motion to suppress. Therefore, this claim is frivolous.
Washington’s claim that he was not advised of his status as a career offender does not raise a non-frivolous issue for appeal. Washington was advised in the plea agreement and at the change of plea hearing that his offense carried a twenty-year maximum sentence. Moreover, his sentence was legal and reasonable. And regardless of Washington’s understanding prior to sentencing, the District Court advised Washington, and he acknowledged his understanding, that the court was not bound by any guideline estimates. Further, to the extent this issue states a claim for ineffectiveness, it is frivolous on direct appeal. See Thornton, 327 F.3d at 271.
Washington’s claim that he is “not guilty” because he was not in possession of drugs and was not a resident of the house where the drugs were located is belied by his sworn testimony at the change of plea hearing. He acknowledged ownership of the drugs, that he intended to sell them, and that he did sell them to an undercover agent and a confidential informant. Moreover, Washington offered no additional evidence to indicate he is not guilty. Therefore, this claim has no merit.
Finally, Washington’s claim that his sentence is illegal because of the government’s failure to file a § 851 notice is frivolous. The notice is required only if the government seeks a sentence beyond the statutory maximum, and is not required if the government requests the court to sentence the defendant as a career offender under U.S. Sentencing Guidelines Manual § 4B1.1. United States v. Day, 969 F.2d 39, 48 (3d Cir.1992). Because Washington was sentenced within the statutory maximum of twenty years and the government sought enhancement only because of Washington’s career offender status, the § 851 notice was not required and this ai'gument is frivolous.
IV.
We conclude that Washington’s counsel has satisfied his obligations under Anders and we grant his motion to withdraw. Because Washington’s appeal presents no meritorious arguments, we dismiss his appeal.
. Third Circuit Local Appellate Rule 109.2(a) provides, in relevant part:
“Where, upon review of the district court record, counsel is persuaded that the appeal presents no issue of even arguable merit, counsel may file a motion to withdraw and supporting brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).... If the panel agrees that the appeal is without merit, it will grant counsel's Anders motion, and dispose of the appeal without appointing new counsel. If the panel finds arguable merit to the appeal, or that the Anders brief is inadequate to assist the court in its review, it will appoint substitute counsel, order supplemental briefing and restore the case to the calendar. The panel will also determine whether to continue the appointment of current counsel or to direct the clerk to discharge current counsel and appoint new counsel.’’
3d Cir. L.A.R. 109.2(a) (2008).
. These factors include: (1) the nature and circumstances of the offense and the defendant's history; (2) the need to reflect the seriousness of the crime and to adequately deter criminal conduct; (3) the available sentences; (4) the established sentencing range; (5) any pertinent sentencing policies; (6) the need to avoid sentencing disparities; and (7) the need to provide restitution to victims. 18 U.S.C. § 3553(a)(1)—(7).
. Washington bears the burden of demonstrating unreasonableness. United States v. Cooper, 437 F.3d 324, 332 (3d Cir.2006). We review the District Court's sentence for an abuse of discretion. See Gall v. United States, 552 U.S. 38, 41, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). This Court asks whether the final sentence was premised on appropriate judicious consideration of the relevant factors. United States v. Schweitzer, 454 F.3d 197, 204 (3d Cir.2006). There is no presumption of reasonableness even if the sentence is within the Guidelines range. Cooper, 437 F.3d at 329-30, 331-32.
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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/8476145/
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OPINION OF THE COURT
VAN ANTWERPEN, Circuit Judge.
Plaintiff-Appellant Connection Training Services (“CTS”) filed this appeal of an order of the United States District Court for the Eastern District of Pennsylvania granting summary judgment to defendants, the City of Philadelphia, Perritti DiVirgilio (“DiVirgilio”), and James Ferraro (“Ferraro”) (collectively, the “Defendants”). CTS appeals the District Court’s *316conclusion that CTS failed to show a genuine issue of material fact that it suffered a detriment in relying on Defendants’ misrepresentations as to the availability of a prevailing wage exemption pursuant to a city ordinance. The District Court relied on an estoppel argument in its grant for summary judgment. We will affirm the entry of summary judgment, but through alternative reasoning.
I.
Because we write solely for the parties, we include only those facts necessary to our disposition of this appeal.
On September 28,1999, the City of Philadelphia enacted ordinance number 990221-A (the “Ordinance”), which purported to expand the scope of workers exempt from the prevailing wage requirements for city contract work. The Ordinance would not become effective until the Minority Business Enterprise Council (“MBEC”) provided certain certifications to the Mayor’s Office and the City Council. MBEC never provided those certifications and, therefore, the Ordinance never took effect.
Nevertheless, CTS developed a training program and sought certification as a bona fide training program under the Ordinance.1 After receiving approval and discretionary funding from the Philadelphia Workforce Development Corporation (“PWDC”), CTS sought to place its trainees with LP Group2, Inc. (“LP2”). LP2 attempted to use these trainees on a contract with the city, but received citations from Philadelphia’s Labor Standards Unit (“LSU”) for prevailing wage violations. DiVirgilio and Ferraro are the director and deputy director, respectively, of the LSU, which is responsible for ensuring that, inter alia, workers on city contracts receive the prevailing wages.
Prior to the Ordinance, the only exemption from the prevailing wage requirements was for recognized apprenticeship programs. The Ordinance would have extended those exemptions to bona fide training programs that complied with the requirements of the Ordinance. The LSU refused to recognize an exemption for CTS’s training program on the basis that the only available exemption was for apprenticeship programs. During the course of this litigation, Defendants asserted that CTS’s claimed exemption was unenforceable because the Ordinance never took effect. Nevertheless, the LSU enforced other requirements under the Ordinance which similarly did not take effect without the MBEC’s certification.
CTS argues that Defendants’ refusal to recognize its training programs precludes it from placing its trainees with construction firms working on city projects, thereby violating its due process and equal protection rights, as well as violating Pennsylvania’s Public Official and Employee Ethics Act (“POEEA”), 65 Pa. Cons.Stat. Ann. § 1101-1113. Because these firms would have to pay the prevailing wage unless CTS’s training program is exempt, the firms will not hire and pay unskilled workers at the same rate as skilled workers. CTS’s argument continues that if it cannot place its trainees, then it cannot receive additional funding from the city or city-related agencies, such as PWDC. Although CTS provided evidence of PWDC’s criteria for refunding *317a training program, there is no indication CTS was guaranteed refunding if it met those criteria. Further, CTS argues that it incurred long-term expenses in creating and initiating its training programs, which it cannot recover if Defendants are permitted to refuse to exempt its training program.
On December 31, 2008, 2008 WL 5423479, the District Court granted Defendants’ motion for summary judgment as to CTS’s due process and equal protection claims under 42 U.S.C. § 1983. The court determined that because the Ordinance never went into effect, CTS could only succeed on its claims if it could estop the Defendants from denying that the Ordinance took effect.2 The court concluded that “the record does not show that CTS sought wage exemptions in reliance on [Defendants’ negligent misrepresentations ... or that such reliance would have been justified.” J.A. at 1891. Thus, CTS could not estop Defendants from claiming the Ordinance was not in effect and, therefore, failed to identify a protected property right.
CTS subsequently filed a timely motion for reconsideration, which the District Court denied in a February 25, 2009 order. Although the court assumed that CTS could show it justifiably relied on Defendants’ misrepresentations, it concluded that “CTS has not produced evidence that its reliance caused it detriment.” Id. at 1898-99. The court then denied a second motion for reconsideration as improper and declined to exercise supplemental jurisdiction over CTS’s POEEA claim.
II.
The District Court had jurisdiction for CTS’s § 1983 claims under 28 U.S.C. § 1331. The District Court declined to exercise supplemental jurisdiction for CTS’s state-law claim under § 1367. This Court has jurisdiction to review the grant of summary judgment under § 1291. Dee v. Borough of Dunmore, 549 F.3d 225, 227 (3d Cir.2008). Plaintiff filed a timely notice of appeal.3
The appeal from the denial of a motion for reconsideration brings up the underlying judgment for review; therefore, the standard of review depends on the nature of the underlying judgment. McAlister v. Sentry Ins. Co., 958 F.2d 550, 552-53 (3d Cir.1992). Because the underlying judgment granted Defendants’ motion for summary judgment, this Court exercises ple*318nary review, applying the same standards the District Court was required to apply. Bowers v. NCAA 475 F.3d 524, 535 (3d Cir.2007).
Summary judgment is appropriate if the moving party has established that there is no genuine issue of material fact and it is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (citing Fed.R.CivP. 56(c)). The moving party bears the initial burden of showing that the non-movant has failed to establish one or more essential elements of its case. Id. at 322-23, 106 S.Ct. 2548. The reviewing court must take all facts in the light most favorable to and must draw all reasonable inferences in favor of the non-movant. Bowers, 475 F.3d at 535.
If the moving party meets its burden, the burden then shifts to the non-movant to establish that summary judgment is inappropriate. Matsushita, Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). To avoid summary judgment, the non-movant must go beyond the pleadings and come forward with specific facts indicating a genuine issue for trial. Celotex, 477 U.S. at 324, 106 S.Ct. 2548. A genuine issue of material fact exists when the evidence is such that a reasonable jury could return a verdict for the non-movant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Summary judgment is appropriate if the nonmovant fails to make a showing sufficient to establish the existence of an element essential to its case. Celotex, 477 U.S. at 322-23,106 S.Ct. 2548.
III.
On appeal, CTS argues that the District Court erred in concluding that it failed to adduce evidence of its detrimental reliance which was sufficient to survive Defendants’ motion for summary judgment. Although CTS indicated in its notice of appeal that it was appealing each of the District Court’s orders, CTS argues against only the District Court’s denial of CTS’s first motion for reconsideration. More specifically, CTS argues the District Court erred in granting summary judgment against CTS’s due process claims. Therefore, CTS has waived any other arguments it may have had on this appeal. See Laborers’ Int’l Union of N. Am. v. Foster Wheeler Corp., 26 F.3d 375, 398 (3d Cir.1994) (considering party’s failure to raise issue in its opening brief as waiver of that argument on appeal); Nagle v. Alspach, 8 F.3d 141, 143 (3d Cir.1993) (requiring party to identify issue in statement of issues or in argument section of brief to avoid waiver). Accordingly, we will not address the District Court’s entry of summary judgment on CTS’s equal protection claim or the court’s decision not to exercise supplemental jurisdiction over CTS’s state-law claim. Rather, we will focus on the District Court’s entry of summary judgment as to CTS’s due process claims.4
*319The Fourteenth Amendment prohibits state action which “deprive[s] any person of life, liberty, or property, without due process of law.” U.S. Const, amend. XIV, § 1. Congress enacted § 1983 as a federal cause of action against the deprivation of any rights, privileges, or immunities secured by the Constitution or laws of the United States. Town of Castle Rock v. Gonzales, 545 U.S. 748, 755, 125 S.Ct. 2796, 162 L.Ed.2d 658 (2005). To state a § 1983 claim, a plaintiff must demonstrate that the defendant, acting under color of state law, deprived plaintiff of a right secured by the Constitution or laws of the United States. Chainey v. Street, 523 F.3d 200, 219 (3d Cir.2008). We will assume, because the parties do not dispute, that for the purposes of this appeal the Defendants are state actors subject to § 1983.
The Due Process Clause includes protections for both procedural and substantive due process. See, e.g., Gonzales, 545 U.S. at 755-56, 125 S.Ct. 2796 (acknowledging substantive and procedural components of Due Process Clause). Because it is unclear whether CTS is asserting a procedural or substantive due process claim, we will address each in turn. The first step in evaluating a § 1983 claim, however, is to identify the exact contours of the underlying right CTS claims was violated and to determine whether CTS has alleged a deprivation of a constitutional right at all. Chainey, 523 F.3d at 219.
A.
To establish a substantive due process claim under § 1983, the plaintiff must prove (1) the particular interest at issue is protected by the Fourteenth Amendment, and (2) the government’s deprivation of that protected interest shocks the conscience. Id.; see Gottlieb v. Laurel Highlands Sch. Dist., 272 F.3d 168, 172 (3d Cir.2001) (stating that substantive due process is violated when state conduct is arbitrary, or conscience shocking, in a constitutional sense) (quoting County of Sacramento v. Lewis, 523 U.S. 833, 847, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998)). The plaintiff must have been deprived of a fundamental property interest under the Constitution. Chainey, 523 F.3d at 219. If the right is fundamental, we must then consider whether the conduct was arbitrary or irrational; however, if the right is not fundamental, there is no substantive due process issue and the state conduct will be upheld so long as the state complies with procedural due process. See Nicholas v. Pa. State Univ., 227 F.3d 133, 142 (3d Cir.2000).
This Court has recognized two strands of substantive due process correlating to the nature of the government action, i.e. whether it was legislative or non-legislative. Id. at 139. Non-legislative, or executive, actions “typically apply to one person or to a limited number of persons, while legislative acts, generally laws and broad executive regulations, apply to large segments of society.” Id. at 139 n. 1. In this case, CTS argues that Defendants’ refusal to qualify its training program for the wage exemption violated its due process rights; therefore, CTS argues it was deprived by non-legislative action.
To prevail on a non-legislative substantive due process claim, CTS must establish a protected property interest to which the Fourteenth Amendment’s protection applies. Id. at 139-40. This Court has required plaintiffs in such circumstances to identify a “particular quality of property interest.” Id. at 140. Whether a certain property interest embodies this particular quality is not determined by reference to state law, but depends on whether that interest is “fundamental” under the Constitution. Id. The asserted property interest must be considered against the background of *320constitutional purposes, rationally developed and historically perceived, with respect for the teachings of history and a solid recognition of the basic values that underlie our society. Id. (quoting Regents of Univ. of Mich. v. Ewing, 474 U.S. 214, 229-30, 106 S.Ct. 507, 88 L.Ed.2d 523 (1985) (Powell, J., concurring)).
We focus on the nature of the property interest at stake and, so far, have limited non-legislative substantive due process rights to real property ownership. Id. at 141. Further, we have declined to recognize a fundamental property interest in a variety of other circumstances. See, e.g., Gikas v. Wash. Sch. Dist., 328 F.3d 731, 736-37 (3d Cir.2003) (holding there is no property interest in statutory veterans' employment preference for substantive due process purposes); Nicholas, 227 F.3d at 143 (declining to find interest in tenured employment); Indep. Enters. Inc. v. Pittsburgh Water & Sewer Auth., 103 F.3d 1165, 1178, 1179-80 (3d Cir.1997) (concluding lowest bidder has no fundamental property interest in municipal contracts even though state statute requires municipality to award contract to lowest bidder); Reich v. Beharry, 883 F.2d 239, 244-45 (3d Cir.1989) (finding no interest in prompt payment for professional services); Ransom v. Marrazzo, 848 F.2d 398, 411-12 (3d Cir.1988) (asserting that state-law entitlement to water and sewer services is not a protected property interest); Mauriello v. Univ. of Med. & Dentistry of N.J., 781 F.2d 46, 52 (3d Cir.1986) (dicta) (suggesting graduate student has no property interest in continued enrollment in program).
In this case, CTS asserts property interests in recognition of its training program under the Ordinance so that it can (1) continue to place its trainees, which CTS asserts is necessary to receive future, discretionary funding from the City of Philadelphia or city-related agencies, and (2) recover the long-term fixed costs it expended in creating its training program. Such interests are not “fundamental” under the Constitution, nor are they basic values that underlie our society. CTS’s asserted interests are analogous to the numerous interests we have declined to recognize, which rely on statutory rights or relationships with government agencies, and are not similar to the “venerable common-law rights of real property ownership.” See Nicholas, 227 F.3d at 143. Therefore, CTS has failed to identify an interest protected by substantive due process and we need not consider whether Defendants’ conduct shocks the conscience. See Chainey, 523 F.3d at 219 (requiring deprivation of fundamental property interest). Accordingly, Defendants’ conduct will be upheld so long as it complied with procedural due process. See Nicholas, 227 F.3d at 142.
B.
To establish a procedural due process claim under § 1983, the plaintiff must prove (1) a deprivation of an individual interest encompassed by the Fourteenth Amendment’s protection of life, liberty, or property, and (2) that the procedures available did not provide due process of law. Hill v. Borough of Kutztown, 455 F.3d 225, 233-34 (3d Cir.2006). Procedural due process does not protect every benefit; rather, to have a property interest in a benefit, a person must clearly have more than an abstract need or desire and more than a unilateral expectation of receiving the benefit. Gonzales, 545 U.S. at 756, 125 S.Ct. 2796. Thus, in constitutional parlance, the plaintiff must have a legitimate claim of an “entitlement.” Id. Entitlements, however, are not established by the Constitution; rather, they are created and defined by existing rules or understand*321ings that stem from an independent source, such as state law. Id.
It is undisputed that the Ordinance never took effect and, therefore, CTS is not entitled to the prevailing wage exemption under statute. Thus, CTS must be able to estop Defendants from denying the Ordinance took effect. Under Pennsylvania law, a party asserting estoppel against a government agency must show (1) a negligent misrepresentation, which (2) induced justifiable reliance and (3) caused the party to suffer a detriment. See Strunk v. Zoning Hearing Bd. of Upper Milford Twp., 684 A.2d 682, 685 (Pa. Commw.Ct.1996). A party asserting estoppel must offer clear, precise, and unequivocal evidence in support of its claim and must produce more than mere speculation. Novelty Knitting Mills, Inc. v. Siskind, 500 Pa. 432, 457 A.2d 502, 504 (1983).
Even assuming CTS can show negligent misrepresentation and justifiable reliance, it cannot show Defendants’ misrepresentations caused it detriment. CTS asserts it suffered detriment because, unless recognized under the prevailing wage exemption, it will not (1) receive future discretionary funding, or (2) recoup its long-term expenses in creating its training program. CTS’s claim for recoupment is just a variation of its claim that it will not receive future funding — CTS would recoup its expenses from that funding. Further, because the funding is discretionary, it is too speculative to meet CTS’s burden to show a detriment. See Novelty Knitting Mills, 457 A.2d at 504. Absent a cognizable detriment, CTS cannot estop Defendants from denying the Ordinance took effect.
Consequently, CTS cannot claim an entitlement under state law. Therefore, CTS is not entitled to procedural due process protection.
IV.
We conclude that CTS has not asserted a cognizable property interest under either procedural or substantive due process. Consequently, as a matter of law, CTS cannot maintain claims under § 1983 for violation of its due process rights. Therefore, we will affirm the District Court’s entry of summary judgment for Defendants.
. The certification requirement was included in a footnote. The director and program manager of CTS, Garnett Littlepage ("Little-page”), asserted that he pursued the training program after reviewing an online version of the Ordinance which contained no footnotes. Thus, the District Court concluded, for the purposes of summary judgment review, that Littlepage was unaware of the certification requirement at the time CTS initiated its training program.
. The District Court asserted that "[t]o estop a government agency, a plaintiff must establish: (1) that the agency intentionally or negligently misrepresented some material fact; (2) the agency had knowledge or reason to know that the other party would rely upon it; and (3) the agency induced the other party to act to its detriment because of justifiable reliance upon the misrepresentation.” J.A. at 1890 (citing Strunk v. Zoning Hearing Bd. of Upper Milford Twp., 684 A.2d 682, 685 (Pa. Commw.Ct. 1996)).
. The notice of appeal in a civil action must be filed within thirty days after the entry of the judgment appealed. Fed. R.App. P. 4(a)(1)(A). If, however, the party files a motion to alter or amend the judgment within the time permitted under the Federal Rules of Civil Procedure, the time for filing the notice of appeal runs from the entry of the order disposing of such motion. Id. R. 4(a)(4)(A)(iv). A motion to reconsider is considered a motion to alter or amend the judgment. Carrascosa v. McGuire, 520 F.3d 249, 253 n. 3 (3d Cir.2008) (citing United States v. McGlory, 202 F.3d 664, 668 (3d Cir.2000) (en banc)). The motion to reconsider must be filed within 10 days of the subject judgment. Fed.R.Civ.P. 59(e). CTS filed a timely motion to reconsider the District Court's December 31, 2008 order granting Defendants’ request for summary judgment. The District Court disposed of CTS’s motion on February 25, 2009, and CTS filed its notice of appeal within thirty days of that order. Therefore, CTS filed a timely appeal. See Fed. R.App. P. 4(a)(1)(A).
. It is unclear from the record and from CTS's brief whether it is asserting a procedural or substantive due process claim. Despite passing references to substantive due process in CTS's brief opposing Defendants' motion for summary judgment, the District Court indicated it considered both types of due process claims. Nonetheless, CTS's brief does not indicate either procedural or substantive due process. See Appellant's Br. at 2, 38-48. And although Defendants maintain that CTS appeals its substantive due process claim. Appellees' Br. at 16, Defendants assert a procedural due process argument in their brief, id. at 34-35 (citing O’Bannon v. Town Court Nursing Ctr., 447 U.S. 773, 100 S.Ct. 2467, 65 L.Ed.2d 506 (1980) (evaluating constitutionality of process under Fifth Amendment Due Process Clause)). Because our ultimate conclusion does not depend on whether we consider CTS's claim as procedural or substantive, we will address both.
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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/8476149/
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OPINION OF THE COURT
VAN ANTWERPEN, Circuit Judge.
Appellant-defendant Michael Hill’s Counsel has filed a motion to withdraw pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). The United States has filed a brief in support of Counsel’s motion. Although Counsel’s Anders brief is slightly insufficient, because this Court is satisfied there are no non-frivolous issues for direct appeal, we will grant Counsel’s motion to withdraw and dismiss the appeal.
I.
Because we write solely for the parties, we will address only those facts necessary to our opinion.
On December 25, 2005, Hill escaped from the Federal Correctional Complex in Loretto, Pennsylvania where he was serving a 234 month sentence for a drug conspiracy involving cocaine base. Hill was designated to a federal prison camp at Loretto, which is a minimum security camp with no perimeter fencing.
After Hill was captured in March 2008, he pled guilty to violating 18 U.S.C. § 751(a), which makes it a crime to escape from government custody. In the Presentence Report prepared by the U.S. Probation Office, Hill’s offense was calculated at a base level of 13, with a two-point downward adjustment because he accepted responsibility. U.S. Sentencing Guidelines Manual § 3El.l(a) (2008). The advisory guideline range for Hill’s conduct, in light of his criminal history category of Level III, was twelve to eighteen months. Prior to sentencing, Hill’s counsel filed a Motion for Concurrent Term of Imprisonment, which was denied. On March 23, 2009, a trial court sentenced Hill to a term of twelve-months imprisonment, to run consecutively to Hill’s undischarged term of imprisonment, and three-years supervised release to run concurrently with Hill’s other supervised release term. This sentence was at the low end of the advisory guideline range of twelve to eighteen months.
*327II.
The District Court had subject matter jurisdiction pursuant to 18 U.S.C. § 3231. This Court has appellate jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). This Court exercises plenary review over an Ayiders motion. See Penson v. Ohio, 488 U.S. 75, 82-33 n. 6, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988).
Our inquiry under Anders is twofold. First, we must consider whether counsel adequately fulfilled its obligations under Third Circuit Local Appellate Rule 109.2(a). United States v. Youla, 241 F.3d 296, 300 (3d Cir.2001). Regarding this issue, counsel must satisfy us that he or she (1) thoroughly scoured the record in search of appealable issues, (2) identified any issues arguably supporting the appeal, even though they are frivolous, and (3) explained to us why they are frivolous. United States v. Coleman, 575 F.3d 316, 319 (3d Cir.2009) (citing United States v. Marvin, 211 F.3d 778, 780 (3d Cir.2000)). Second, we must consider whether an independent review of the record presents any non-frivolous issues. Youla, 241 F.3d at 300. If the Anders brief appears adequate on its face, we review only the portions of the record identified in the Anders brief and any issues raised by an appellant in a pro se brief. Id. at 301. But, “except in those cases in which frivolousness is patent, we will reject briefs ... in which counsel argue [sic] the purportedly frivolous issues aggressively without explaining the faults in the arguments.” United States v. Marvin, 211 F.3d 778, 781 (3d Cir.2000).
III.
Counsel’s Anders brief is technically insufficient. In his brief, Counsel identifies three potential issues for appeal, all relating to Hill’s sentence: (1) that Hill is entitled to a four-point downward departure pursuant to the federal sentencing guidelines for escaping from a non-secure community correction center, community treatment center, or halfway house; (2) that the District Court abused its discretion in refusing to run Hill’s sentence concurrent to his undischarged drug sentence; and (3) that the District Court failed to consider the defendant’s mental and emotional state in sentencing. Although Counsel examines each potential issue with care, and cites controlling law, Counsel fails to explain to us the faults in these arguments, as required under Marvin, 211 F.3d at 781.
Moreover, Counsel only addressed Hill’s potential sentencing claims. When a defendant pleads guilty, as Hill did, there are three potential issues open for appeal: the District Court’s jurisdiction, the validity of the guilty plea, and the legality of the sentence. See United States v. Broce, 488 U.S. 563, 569, 109 S.Ct. 757, 102 L.Ed.2d 927 (1989). Counsel did not address jurisdiction or the adequacy of Hill’s plea. Notably, Counsel need not include every possible claim of error in an Anders brief, but the brief must exude sufficient indicia that Counsel made a reasoned decision not to raise the issues omitted. Marvin, 211 F.3d at 780. Here, although Hill did not file a pro se brief, he wrote his Counsel a letter bringing up each of the arguments addressed in Counsel’s Anders brief. App. at 43-44. Therefore, we are not confident that Counsel omitted the other appealable issues based on a reasoned belief they lack merit; rather, it appears to us that Counsel merely framed his arguments to respond to the issues the defendant specifically indicated he intended to appeal.
IV.
While Counsel’s Anders brief is inadequate, and no pro se brief was filed, we will not appoint new counsel as we do not need further assistance; the issues are straight*328forward and easily resolvable on the record before us. See Coleman, 575 F.3d at 321 (noting that in those cases when the Court concludes the appeal lacks merit, “we will not appoint new counsel even if an Anders brief is insufficient.”). We will limit our independent review to the record, in light of Hill’s guilty plea, to the District Court’s jurisdiction, the validity of the plea, and the legality of the sentence.
Hill pled guilty to one count of 18 U.S.C. § 751(a). The District Court plainly has jurisdiction over this offense under 18 U.S.C. § 3231, as Hill’s crime was an offense against the laws of the United States. Therefore, Hill can raise no non-frivolous claims with respect to jurisdiction.
The record indicates both that the District Court colloquied Hill prior to accepting his plea, in keeping with the requirements of Federal Rule of Criminal Procedure 11(b), and that Hill had no intention of appealing the sufficiency of that colloquy. Therefore, Hill can raise no non-frivolous issue with respect to his plea.
Furthermore, Counsel predicts Hill will appeal his sentence. This Court reviews the overall sentence for abuse of discretion by engaging in a procedural and substantive review of the sentence. See United States v. Tomko, 562 F.3d 558, 567 (3d Cir.2009). Procedurally, the District Court must (1) accurately calculate the applicable sentencing guidelines range; (2) formally rule on the motions of both parties and state on the record whether the court is granting a departure and how that departure affects the guidelines range; and (3) consider all the factors under 18 U.S.C. § 3553(a) and adequately explain the chosen sentence in a manner that allows for meaningful appellate court review of the reasonableness of the sentence. See Gall v. United States, 552 U.S. 38, 49-50, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007); United States v. Gunter, 462 F.3d 237, 247 (3d Cir.2006). If the District Court’s procedure is without error, then we consider the substantive reasonableness of the sentence based on the totality of the circumstances. Tomko, 562 F.3d at 567. It is clear from the record that the District Court followed the procedural guidelines and gave meaningful consideration to the relevant § 3553(a) factors. Moreover, the Court did not abuse its discretion by imposing a twelve-month consecutive sentence. Thus, we conclude the sentence was legal and reasonable.
Counsel contends that Hill may appeal the sentence arguing he is entitled to a four-point downward departure. If a defendant escaped from the “non-secure custody of a community corrections center, community treatment center, halfway house, or similar facility,” he is entitled to a four-point downward departure under the Sentencing Guidelines. U.S. Sentencing Guidelines Manual § 2Pl.l(b)(3). We agree with the government and Counsel that there is no factual basis for characterizing the Federal Prison Camp adjacent to the Federal Corrections Institution at Loretto, the minimum security facility from which Hill escaped, as something similar to a community center. See United States v. Hillstrom, 837 F.Supp. 1324, 1339 (M.D.Pa.1993) (finding the Federal Prison Camp at Allenwood, a lower level Federal Prison Camp than Loretto, dissimilar to a community correction facility for the purposes of the same guidelines provision). Therefore, we find that Hill is unable to make a non-frivolous appeal based on the argument that Loretto should be characterized as similar to a community corrections facility for sentencing purposes.
Similarly, Hill cannot present a non-frivolous claim that the District Court erred by refusing to run his twelve-month sentence concurrently with the remainder of his prior sentence. A District Judge *329has discretion to impose a term of imprisonment either consecutively or concurrently on a defendant who is already subject to an undischarged term of imprisonment, upon consideration of the factors set forth in 18 U.S.C. § 3553(a). 18 U.S.C. § 3584(a), (b). It is clear to us from the record that the District Court gave meaningful consideration to the relevant § 3553(a) factors before deciding to impose Hill’s sentence consecutively. Thus, Hill is unable to make a non-frivolous claim on this issue.
Counsel predicts Hill would appeal his sentence claiming that the District Court erred by not considering whether the defendant deserved a downward departure due to defendant’s mental and emotional state. U.S. Sentencing Guidelines Manual § 5H1.3. Neither Hill nor his attorney asserted to the District Court that Hill may be entitled to a downward departure on that basis, and arguments asserted for the first time on appeal are deemed waived and unreviewable by this Court, absent exceptional circumstances which do not exist here. Gov’t of Virgin Islands v. Rosa, 399 F.3d 283, 291 (3d Cir.2005); Brown v. Philip Morris Inc., 250 F.3d 789, 799 (3d Cir.2001).
According to the Counsel’s brief, he considered, but decided against moving for a downward departure due to Hill’s mental or emotional state. He noted, and the record confirms, that Hill has no history of mental or emotional conditions, and there is no reference to any emotional or mental conditions in the presentencing report. Moreover, when invited, Hill accepted the opportunity to tell the Court what he wanted the Court to know, but he did not ask for a downward departure to reflect any mental or emotional conditions from which he suffered. App. at 26-30. Waivers are unreviewable because it is presumed they were the result of tactical choices, as this was. Rosa, 399 F.3d at 290. As the defendant never advanced the issue of a departure for mental or emotional issues to the District Court, the issue is waived and unreviewable on appeal. Id. Thus, we conclude Hill has no non-frivolous claim for appeal due to the lack of consideration of his mental and emotional state before sentencing.
V.
Although we conclude that Counsel’s Anders brief is technically insufficient, because we find that Hill’s appeal presents no meritorious arguments, we will grant Counsel’s motion to withdraw and dismiss Hill’s 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/8476154/
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OPINION OF THE COURT
FISHER, Circuit Judge.
The School District of Philadelphia (“School District”) appeals from an April 22, 2008, order of the District Court awarding $104,349.45 in attorneys’ fees and $2,270.05 in costs to plaintiffs Dawn J. and her son, Damian J. The School District urges us to apply to the lodestar amount a greater negative multiplier than that applied by the District Court. Because we conclude that the District Court did not abuse its discretion in reducing the lodestar amount by five percent, we decline to do so. Accordingly, we will affirm the District Court’s order.
I.
We write exclusively for the parties, who are familiar with the factual context and legal history of this case. Therefore, we will set forth only those facts necessary to our analysis.
At the time this litigation began, Damian was a twelve-year-old student eligible for a “free and appropriate education” (“FAPE”) under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400, et seq. To fulfill its IDEA obligations, the School District developed an Individualized Education Program (“IEP”) for Damian. In January 2006, Damian’s mother, Dawn, requested a due process hearing, alleging that the IEP was not being properly implemented and seeking compensatory education for the 2005-2006 school year. After several hearings, a state hearing officer determined that the School District had not denied Damian a FAPE during the relevant period. A state appeals panel upheld that determination.
Thereafter, Dawn, on both Damian’s and her own behalf (together, the “Plaintiffs”), initiated this lawsuit against the School District1 in the United States District Court for the Eastern District of Pennsylvania, seeking relief under the IDEA; the Rehabilitation Act of 1973, 29 U.S.C. § 794; and 42 U.S.C. § 1983.2 They asked the District Court, among other *335things, to reverse the rulings of the hearing officer and the appeals panel; to declare that the School District had violated the IDEA, the Rehabilitation Act, and § 1983; to award Damian compensatory education for the 2005-2006 school year; to order the School District to reimburse them for attorneys’ fees incurred in connection with a 2005 settlement agreement; and to award them monetary damages. The parties filed cross-motions for judgment on the administrative record. In a Memorandum and Order entered on January 23, 2008, the District Court partially granted and partially denied both parties’ motions. The Court awarded Damian compensatory education for the first half of the 2005-2006 school year but declined to award compensatory education for the remainder of that school year. The Court did not award either party any other relief.
The Plaintiffs subsequently moved for an award of $113,267.16 in attorneys’ fees and $2,301.66 in costs.3 In a Memorandum and Order entered on April 22, 2008, the District Court awarded $104,349.45 in attorneys’ fees and $2,270.05 in costs.4 The School District has timely appealed only the fee award.5
II.
The District Court had jurisdiction under 28 U.S.C. § 1331 and 28 U.S.C. § 1343. We have jurisdiction under 28 U.S.C. § 1291. An award of attorneys’ fees is reviewed for abuse of discretion. P.N. v. Clementon Bd. of Educ., 442 F.3d 848, 852 (3d Cir.2006). “An abuse of discretion occurs when a district court’s decision rests upon a clearly erroneous finding of fact, an errant conclusion of law or an improper application of law to fact.” Id. (internal quotation marks and citation omitted). To the extent a district court’s fee award is based on a legal determination, we exercise plenary review. Id.
III.
Both the IDEA and the Rehabilitation Act authorize an award of reasonable attorneys’ fees to the prevailing party. See 20 U.S.C. § 1415(i)(3)(B)(i)(I);6 29 U.S.C. § 794a(b).7 “Our case law construing what is a reasonable fee applies uniformly to all fee shifting statutes.” Goodman v. Pa. Turnpike Comm’n, 293 F.3d 655, 677 (3d Cir.2002) (alteration, quotation marks and citation omitted). “The starting point for determining the amount of a reasonable fee is the lodestar, which courts determine by calculating the ‘number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate.’ ” McKenna v. City of Philadelphia, 582 F.3d 447, 455 (3d Cir.2009) (quoting Hensley v. Eckerhart, 461 U.S. 424, 433, 103 *336S.Ct. 1933, 76 L.Ed.2d 40 (1983)). “The product is a presumptively reasonable fee, but it may still require subsequent adjustment.” UAW Local 259 Soc. Sec. Dep’t v. Metro Auto Ctr., 501 F.3d 283, 290 (3d Cir.2007). Thus, “[ojnce a lodestar calculation has been reached, a court may then reduce that amount to account for ‘limited success’ by a plaintiff, focusing on ‘the significance of the overall relief obtained by the plaintiff in relation to the hours reasonably expended on the litigation.’” McCutcheon v. America’s Servicing Co., 560 F.3d 143, 151 (3d Cir.2009) (quoting Hensley, 461 U.S. at 435-36, 103 S.Ct. 1933).
In this case, the District Court recited the hourly rates of, and the number of hours expended by, the various attorneys and other professionals hired by the Plaintiffs. The Court rejected the School District’s argument that the hourly rates of some of those professionals should have been reduced, finding that those rates were consistent with, or less than, the prevailing rates for professionals of comparable skill and experience. The Court was likewise unconvinced by the School District’s contention that the Plaintiffs’ time entries were vague. Finally, the Court eliminated from its computation hourly work performed in connection with the preparation of a report that the Plaintiffs had not submitted to the District Court. Having explained these considerations, the District Court calculated the lodestar as $109,841.53. The Court reduced that amount by five percent, resulting in a fee award of $104,349.45. In the District Court’s view, a five percent negative multiplier was appropriate because the Plaintiffs’ success was “substantial.” (App.l2a.) The Court reasoned as follows:
Plaintiffs succeeded in proving Damian had been denied FAPE and Damian’s rights were vindicated. Plaintiffs’ claims, both successful and unsuccessful, were interrelated, nonfrivolous, and raised in good faith. The claims arose out of a common core of facts involving deficiencies in Damian’s classroom environment. The claims were also based on related theories regarding the implementation of Damian’s IEP. I find much of counsel’s time was devoted generally to the litigation as a whole and the hours spent on the various claims cannot be divided. I also find counsel carefully prepared this ease and their work was thorough and skilled. Plaintiffs’ success, however, was not complete, and I find a slight fee reduction reasonable to reflect the limited success. Given the significance of the overall relief obtained in relation to the hours reasonably expended on the litigation, I find a reduction of 5% to be reasonable.
(App. 12a-13a (internal citation omitted).)
The School District does not dispute that the Plaintiffs are the prevailing party in this case. Instead, it argues that the Plaintiffs prevailed on only one of what the School District characterizes as four claims: (1) reversal of the state administrative rulings; (2) compensatory education for the entirety of the 2005-2006 school year; (3) compensatory damages under the IDEA, the Rehabilitation Act, and § 1983; and (4) attorneys’ fees sought in connection with a 2005 settlement agreement between the parties. (Appellant’s Br. 12-13.) The School District further argues that the Plaintiffs prevailed on only the first two claims, and only partially at that, since Damian was awarded compensatory education for only one-half of the 2005-2006 school year. The School District points out that the § 1983 claim was dismissed and contend that the fee request in connection with the 2005 settlement agreement was not “proven.” (Id. at 13.) In the School District’s view, a seventy-five percent, instead of a five percent, negative multiplier should have been applied to the Plaintiffs’ fee request, result*337ing in a fee award of $27,460.38. Notably, the School District has offered us no relevant legal authority to compel the use of its proposed negative multiplier.8
It is true that when “a plaintiff has achieved only partial or limited success,” a district court may reduce a fee award below the lodestar amount. Hensley, 461 U.S. at 436, 103 S.Ct. 1933. However, “[tjhere is no precise rule or formula for making these determinations.” Id. Indeed, where, as here, a plaintiffs successful and unsuccessful claims arise out of a common core of facts — the School District’s failure to provide Damian with a FAPE — “[m]uch of counsel’s time will be devoted generally to the litigation as a whole, making it difficult to divide the hours expended on a claim-by-claim basis.” Id. at 435, 103 S.Ct. 1933. We recognize that a district court may reduce the lodestar amount “even where the plaintiffs claims were interrelated, nonfrivolous, and raised in good faith.” Id. at 436, 103 S.Ct. 1933. At the same time, when a district court “applies the correct legal standard, th[at] court has discretion in determining the actual fee[ ] award.” Abrams v. Lightolier Inc., 50 F.3d 1204, 1222 (3d Cir.1995) (citations omitted). Indeed, deference to a district court’s determination of attorneys’ fees
is appropriate in view of the district court’s superior understanding of the litigation and the desirability of avoiding frequent appellate review of what essentially are factual matters. It remains important, however, for the district court to provide a concise but clear explanation of its reasons for the fee award. When an adjustment is requested on the basis of either the exceptional or limited nature of the relief obtained by the plaintiff, the district court should make clear that it has considered the relationship between the amount of the fee awarded and the results obtained.
Hensley, 461 U.S. at 437, 103 S.Ct. 1933.
Here, in a thoroughly reasoned and careful analysis, the District Court made factual findings that we have been given no reason to upset. Furthermore, consistent with the governing legal standards, the District Court correctly calculated the lodestar figure. Finally, taking into account the interrelated nature of the Plaintiffs’ claims and the Plaintiffs’ “substantial” success in vindicating Damian’s right to a FAPE — a right that was at the crux of this lawsuit — the District Court determined that a five percent negative multiplier was warranted. Based on our review of the record, we cannot say that the District Court reached a determination that “no reasonable person would adopt[.]” Rode v. Dellarciprete, 892 F.2d 1177, 1182 (3d Cir.1990) (citation omitted); see also Washington v. Phila. County Court of Common Pleas, 89 F.3d 1031, 1039 (3d Cir.1996) (“Our task [in reviewing a fee award] is not to determine whether, sitting as a court of first instance, we would have reached the same conclusion as the district court did.”).
IV.
For the foregoing reasons, we will affirm the District Court’s April 22, 2008, order.
. Dawn also named as a defendant the Community Council for Mental Health and Mental Retardation. The District Court subsequently granted that defendant’s motion to dismiss and dismissed it from this case. That ruling is not at issue here.
. The District Court dismissed the Plaintiffs’ § 1983 claim on the School District’s motion. That ruling is likewise uncontested.
. The Plaintiffs initially asked for an award of $127,531.54 in attorneys' fees and $4,501.03 in costs, but later reduced their request.
. The District Court subsequently stayed the execution of its award of fees and costs pending appeal.
. The School District does not challenge the District Court's ruling on the parties' respective motions for judgment on the administrative record. Nor does the School District challenge the District Court's award of costs.
. The IDEA'S fee-shifting provision states, in pertinent part, as follows: "In any action or proceeding brought under this section, the court, in its discretion, may award reasonable attorneys' fees as part of the costs ... to a prevailing party who is the parent of a child with a disability [.]'' 20 U.S.C. § 1415(i)(3)(B)(i)(I).
.The Rehabilitation Act's fee-shifting provision states: "In any action or proceeding to enforce or charge a violation of a provision of this subchapter, the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs.” 29 U.S.C. § 794a(b).
. The School District cites several decisions by district courts in this circuit to support its position, but none of them furthers the School District’s cause. Instead, those decisions demonstrate only that other district courts have exercised their discretion in different ways on different facts. Significantly, none of those decisions bind this Court, just as they did not bind the District Court in this case.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8476156/
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OPINION
AMBRO, Circuit Judge.
James J. Kania appeals the District Court’s grant of summary judgment to the United States Postal Service on his claims for disability discrimination and retaliation under the Rehabilitation Act of 1973, 29 U.S.C. § 791 et seq. We affirm.1
I.
Kania is a letter carrier for the Postal Service at its Woods Run Station in Bellevue, Pennsylvania. In January 2004, he began suffering lower back pain and was diagnosed with facet syndrome, a condition that causes degeneration of cartilage between the discs of the lower back. Kania received Family Medical Leave Act (“FMLA”) certifications for more than 400 hours of missed work due to his back pain between March 2004 and June 2005. In May and June of 2005, he underwent lumbar facet nerve blocks and a lumbar facet rhizotomy, which decreased his pain levels.
In September 2005, a route examiner observed that Kania was unable to maintain “an acceptable walking pace” while on his route, and witnessed Kania take the prescription narcotic oxycodone. As a result, Lauren Alt, the Customer Service Manager for the Woods Run Station, placed Kania on limited duty pending the results of a fitness-for-duty medical examination. Kania complained to Alt and another supervisor, Ronda Lavezoli, that he was “being treated unfairly due to [his] disability,” and demanded that he be reinstated to his full-time duties as a letter carrier. He also filed grievances challenging his placement on limited duty and seeking back pay for the hours of work missed while on limited duty. During this time, Kania remodeled his own home and his son’s home, projects that included installing siding and new floors, painting, wiring, and renovating a bathroom.
In late 2005, Kania was examined by three physicians, each of whom concluded that Kania was capable of performing the essential functions of his job and should be reinstated to full-time work as a letter carrier. After receiving these reports, the Postal Service returned Kania to full-time duty in December 2005. Shortly thereafter, Kania and the Postal Service settled Kama’s grievances, and he was granted full back pay.
In February 2006, another supervisor of Kania, Norbert Graf, issued him a letter of warning for missing scan points on his delivery route on February 21, 2006. When Kania complained to Graf that he had not missed any scan points on that date, Graf allegedly told Kania that Lavezoli and Alt had forced Graf to issue the discipline because they were upset that Kania had filed grievances.
In March 2006, Kania expressed interest in a position in the maintenance department at the Postal Service’s General Mail Facility in Pittsburgh. Two months later, *340he was notified that he was being “canvassed” for a position in the maintenance department. Because Kania was the only current Postal Service employee who had expressed interest in the position, his was the only application that was initially considered.
Kania informed Lavezoli and Michael Graf, the Acting Manager of the Woods Run Station (and Norbert Grafs brother), of his intention to transfer to the maintenance department. Two days later, Lavezoli issued Kania a seven-day suspension for unauthorized overtime taken in late April 2006. Kania, however, was on authorized leave on the dates identified by Lavezoli. Kania confronted Lavezoli about the erroneous basis for the suspension, and Lavezoli rescinded the suspension. However, he reissued the suspension for different dates on which Kania allegedly took unauthorized overtime. The newly identified dates, however, did not appear on the Postal Service’s records of overtime taken by Kania.
James DeLeonibus, a Manager of Maintenance Operations at the General Mail Facility, was instructed by Thomas Graf, the Maintenance Manager for the General Mail Facility (and another brother of Norbert Graf), to review Kama’s application. Among the documents in Kama’s file were (1) records of the letter of warning and seven-day suspension Kania received in 2006, and (2) an evaluation from Lavezoli, in which she stated that Kania was “willing to work but cannot complete his duties in a timely manner.” DeLeonibus rejected Kama’s application because his work record was “unsatisfactory,” as he had “current” discipline in his record. In his deposition, DeLeonibus confirmed that he rejected Kama’s application solely because Kania had a record of “live” discipline.
Kania filed a formal Equal Employment Opportunity complaint in September 2007, alleging that he had suffered disability discrimination and retaliation when he was not selected for the maintenance position. After his claim was denied in February 2007, Kania filed suit in the District Court for the Western District of Pennsylvania, alleging disability discrimination, retaliation, and hostile work environment arising not only out of his non-selection for the maintenance position, but also his placement on limited duty in 2005 and the discipline imposed on him in February and May 2006.
In November 2007, the District Court dismissed Kania’s claims to the extent they involved actions other than his non-selection for the maintenance position, as Kania had not filed EEO complaints regarding his placement on limited duty or the discipline imposed in 2006.2 Following discovery, the Magistrate Judge recommended that summary judgment be granted in favor of the Postal Service on the disability discrimination and retaliation claims of Kania because he had failed to establish a prima, facie case for either. The District Court approved and adopted the Magistrate Judge’s report and recommendation in entering judgment in favor of the Postal Service. Kania timely appealed.
II.
Kania argues that the District Court improperly granted summary judgment to the Postal Service on his claims for disability discrimination and retaliation. We address each claim in turn.3
*341in.
To establish a prima facie case of disability discrimination under the Rehabilitation Act,4 a plaintiff must show that he (1) has a “disability,” (2) is otherwise qualified to perform the essential functions of the job, with or without reasonable accommodations, and (3) was nonetheless prevented from performing the job. Wishkin v. Potter, 476 F.3d 180, 184-85 (3d Cir.2007) (quoting Shiring v. Runyon, 90 F.3d 827, 831 (3d Cir.1996)). The Rehabilitation Act defines an “individual with a disability” as someone who (1) has a physical or mental impairment that substantially limits his/her major life activities, (2) has a record of such an impairment, or (3) is regarded as having such an impairment. 29 U.S.C. § 705(20)(B); 42 U.S.C. § 12102(1). The District Court determined that Kania failed to establish the first element of his prima facie case because he did not qualify as an “individual with a disability” under any of these definitions. We agree.5
A. Actual Disability
A “substantial ] limitation]” is a significant restriction on a major life activity “as compared to ... the average person in the *342general population.” Toyota Motor Mfg., Ky., Inc. v. Williams, 584 U.S. 184, 195-96, 122 S.Ct. 681, 151 L.Ed.2d 615 (2002) 0quoting 29 CFR § 1630.2(j) (2001)). A major life activity is one that is “of central importance to daily life,” id. at 197, 122 5.Ct. 681, such as “caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working,” 29 C.F.R. § 1630.2(f), as well as “sitting, standing, lifting [and] reaching.” Kralik v. Durbin, 130 F.3d 76, 78-79 (3d Cir.1997) (quoting 29 C.F.R. § 1630 app.) (alteration in original).
Kania argues that he presented sufficient evidence that he is “substantially limit[ed]” in the major life activities of walking, standing, and working. But despite his diagnosis of facet syndrome, the record reveals no doctor who has placed a physical limitation on Kania. He continues to work as a letter carrier, which requires standing and walking for several hours a day. Moreover, Kania testified in deposition that he is able to drive a car, do limited jogging and running, shop, and care for his son. Kania also testified that he is able to function even when his back pain is sharp. In light of these facts, we agree with the District Court that Kania does not meet the “demanding standard for qualifying as disabled.” Toyota Motor Mfg., 534 U.S. at 197, 122 S.Ct. 681.
In response, Kania emphasizes the FMLA certifications he received for more than 400 hours of missed work in 2004-2005, before his non-selection for the maintenance position.6 However, we evaluate whether a person is disabled “from the point at which the alleged discriminatory decision was made” — here, August 2006. Bowers v. NCAA, 475 F.3d 524, 535-36 (3d Cir.2007). In May and June of 2005, Kania underwent procedures that “dramatically” reduced his pain level: in May 2005, he reported a 70% reduction in pain, and in July 2005, he described his pain level as a two on a scale of one to ten. Moreover, Kania engaged in significant physical labor in 2005 and 2006, including remodeling two homes. This activity belies Kama’s claim that he was substantially limited in a major life activity at the time of his non-selection.
Kania also places great weight on the March 2008 report of Dr. Patrick N. Smith, an orthopedic surgeon, who stated that he “fe[lt] that [the facet syndrome] seems to interfere with [Kama’s] abilities to perform certain activities, particularly as it relates to his occupation,” and that Kama’s condition could deteriorate “over the next several years” unless he switched to an “occupation with less physical demands.” Dr. Smith’s 2008 opinion that facet syndrome “seems to interfere” with Kama’s ability to work is not enough to create a genuine issue of material fact as to whether Kania was substantially limited in the major life activity of working in August 2006. The possibility that Kama’s facet syndrome could worsen in the future is also insufficient to show that he was disabled in August 2006. See Sutton v. United Air Lines, Inc., 527 U.S. 471, 482, 119 S.Ct. 2139, 144 L.Ed.2d 450 (1999) (“[A] person [must] be presently — -not potentially or hypothetically — substantially limited in order to demonstrate a disability”).
Finally, even accepting that Kania experiences limitations on his ability to work as a letter carrier, he has not demonstrated that these limitations make him “unable to work in a broad class of jobs.” Id. at 491, 119 S.Ct. 2139 (emphasis added); see also id. at 492, 119 S.Ct. 2139 (“To be substantially limited in the major life activity of working, ... one must be precluded from *343more than one type of job, a specialized job, or a particular job choice.”). Accordingly, we conclude that the District Court correctly determined that Kania was not disabled.7
B. Regarded As Having a Disability
We also conclude that Kania failed to demonstrate that the Postal Service “regarded” him as having a disability. He argues that his supervisor’s ordering a fitness-for-duty examination, after learning of Kama’s inability to maintain an “acceptable walking pace,” creates a genuine issue of material fact whether the Postal Service regarded him as being disabled. But an employer’s direction that an employee undergo a medical examination “only establishes that the employer harbors doubts (not certainties) with respect to an employee’s ability to perform a particular job,” and those doubts “alone do not demonstrate that the employee was held in any particular regard.” Tice, 247 F.3d at 515; see also Kelly v. Drexel Univ., 94 F.3d 102, 109 (Bd Cir.1996) (that plaintiffs employer was aware of his visible walking impairment was insufficient to show the employer regarded the employee as disabled). Indeed, when three physicians cleared Kania to return to his full-time duties as a letter carrier, the Postal Service reinstated him.
Moreover, we know of no evidence suggesting that DeLeonibus (the relevant decision-maker) had any knowledge that Kania had a physical impairment. De-Leonibus testified that he was completely unaware of Kama’s medical problems when he reviewed his application and decided not to select him for the maintenance position, and did not communicate with Kama’s supervisors during his review.8
Kania nonetheless points to “circumstantial evidence” suggesting that DeLeonibus was aware of his alleged impairment. For example, Kania claims that the month-long gap between DeLeonibus’ receipt of his application and the decision not to select Kania suggests that DeLeonibus communicated with Kama’s supervisors during this period and was informed of his disability. This is speculation, and it is insufficient to defeat summary judgment. See Geraci v. Moody-Tottrup, Int’l, Inc., 82 F.3d 578, 582 (3d Cir.1996) (speculation that members of management “lied about their lack of knowledge” of plaintiffs pregnancy was insufficient to create a genuine issue of material fact); Hedberg v. Ind. Bell Tel. Co., 47 F.3d 928, 931-2 (7th Cir.1995) *344(speculation about employer’s knowledge of plaintiffs disability did not create a genuine issue of material fact; “instead, it ereate[d] a false issue, the demolition of which is a primary goal of summary judgment”).
In sum, we conclude that the District Court properly entered summary judgment in favor of the Postal Service on Kama’s disability discrimination claim.
III.
To establish a prima facie case of retaliation, a plaintiff must demonstrate that (1) he engaged in protected activity, (2) his employer took an adverse employment action against him, and (3) there was a causal connection between his protected activity and the adverse employment action. Krouse v. Am. Sterilizer Co., 126 F.3d 494, 500 (3d Cir.1997). Kania claims that his non-selection for the maintenance position was in retaliation for two protected actions: (1) his complaint to Alt that he was “being singled out because of [his] disability” when he was ordered to undergo a fitness-for-duty examination; and (2) his filing of grievances challenging his placement on limited duty. The District Court agreed that these acts qualified as protected activity, but concluded that Kania had not established a causal connection between that protected activity and his non-selection for the maintenance position.
We agree with the Court. Generally, a plaintiff may establish the requisite causal nexus by demonstrating either “(1) an unusually suggestive temporal proximity between the protected activity and the allegedly retaliatory action, or (2) a pattern of antagonism coupled with timing.” Lauren W. ex rel. Jean W. v. DeFlaminis, 480 F.3d 259, 267 (3d Cir.2007). Kania has demonstrated neither. First, his not getting the maintenance position occurred 11 months after his grievances and complaint to Alt. See Andreoli v. Gates, 482 F.3d 641, 650 (3d Cir.2007) (five-month gap was insufficient to establish a causal connection between protected activity and adverse employment action). Second, as with his disability discrimination claim, Kania has produced no evidence demonstrating that DeLeonibus was aware of Kama’s grievances or his complaint to Alt. Indeed, Kania testified that he has never met DeLeonibus, and does not believe that DeLeonibus retaliated against him when he rejected his application. Accordingly, we conclude that the District Court appropriately entered summary judgment in favor of the Postal Service on Kama’s retaliation claim.
H: * * * ❖ #
In this context, we affirm the judgment of the District Court.
. The District Court had jurisdiction under 28 U.S.C. § 1331. We have jurisdiction under 28 U.S.C. § 1291.
. Kania concedes on appeal that he failed to exhaust his administrative remedies as to these claims.
. We review a grant of summary judgment de novo, using the same standards as the District Court. Jakimas v. Hoffmann-LaRoche, Inc., 485 F.3d 770, 777 (3d Cir.2007). We view the facts in the light most favorable to the nonmoving party. Id.) Erie Telecomms. Inc. v. City of Erie, 853 F.2d 1084, 1093 (3d Cir.1988). A party is entitled to summary judg*341ment only "if the pleadings, the discovery and disclosure materials on file, and any affidavits[,] show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c)(2).
. The Rehabilitation Act provides in pertinent part: "No otherwise qualified individual with a disability in the United States ... shall, solely by reason of her or his disability, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency or by the United States Postal Service.” 29 U.S.C. § 794(a).
. On September 25, 2008 — after the USPS had moved for summary judgment, but before Kania had responded — President George W. Bush signed into law the ADA Amendments Act of 2008 (the “Act”), which took effect on January 1, 2009. Pub.L. No. 110-325, 122 Stat. 3553, 3559. The Act expands the definition of "disability” under the ADA and the Rehabilitation Act. See id. § 4(a), 122 Stat. at 3555 ("The definition of disability in this Act shall be construed in favor of broad coverage of individuals”). At our request, the parties submitted supplemental letter briefs addressing the effect of the Act, if any, on Kania’s claims. Although he submitted a supplemental letter brief, Kania did not address whether the Act applies retroactively.
We have little difficulty concluding that it does not apply retroactively. First, the Act lacks any “express command” that it is to be applied retroactively. Landgraf v. USI Film Prods., 511 U.S. 244, 280, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994). Indeed, it appears to contain an "express command” that it not apply retroactively, as Congress delayed its effective date by two months. See Lytes v. DC Water & Sewer Auth., 572 F.3d 936, 940 (D.C.Cir.2009) ("By delaying the effective date of the [Act], the Congress clearly indicated the statute would apply only from January 1, 2009 forward.”). In addition, the Act affects “substantive rights, liabilities, or duties," as it substantially broadens the definition of "disability,” and thus expands the class of employees entitled to protection under the Rehabilitation Act. See Fernandez-Vargas v. Gonzales, 548 U.S. 30, 37, 126 S.Ct. 2422, 165 L.Ed.2d 323 (2006) (in the absence of an express statutory command, courts must consider whether applying the statute "would have a retroactive consequence in the disfavored sense of ‘affecting substantial rights, liabilities, or duties [on the basis of] conduct arising before [the statute’s] enactment' ”) (quoting Landgraf, 511 U.S. at 278, 114 S.Ct. 1483) (first alteration in original). Accordingly, we join those Courts of Appeals that have addressed the issue and concluded that the Act does not apply retroactively. See Becerril v. Pima County Assessor's Office, 587 F.3d 1162, 1164 (9th Cir.2009); Fredricksen v. United Parcel Serv., 581 F.3d 516, 521 n. 1 (7th Cir.2009); Lytes, 572 F.3d at 939-42; Milholland v. Sumner County Bd. of Educ., 569 F.3d 562, 565-67 (6th Cir.2009); EEOC v. Agro Distribution, LLC, 555 F.3d 462, 469 n. 8 (5th Cir.2009).
. As stated in 29 C.F.R. § 825.702(b), a “serious health condition" under the FMLA is a “different concept!]” than the term "disability," and "must be analyzed separately."
. Because we believe that Kama’s impairment does not quality as a "disability” under the Rehabilitation Act, we also agree with the District Court that he has not proven the existence of a "record” of disability. See Tice v. Centre Area Transp. Auth., 247 F.3d 506, 513 (3d Cir.2001) ("A plaintiff attempting to prove the existence of a ‘record’ of disability still must demonstrate that the recorded impairment is a ‘disability’....”).
. In Olson v. General Electric Astrospace, 101 F.3d 947 (3d Cir.1996), we held that although the decision-maker was unaware of the plaintiff’s alleged disability, the plaintiff could still demonstrate that he was “regarded as” having a disability because: (1) the supervisor who had knowledge of the plaintiff’s impairment was "directly involved in the hiring process,” and (2) the hiring decision was based largely on that supervisor’s recommendation, in which the supervisor "made multiple references to the fact that [the plaintiff] had missed a significant amount of work because of illness.” Id. at 954.
There is no similar basis on which to impute the alleged knowledge of Kama's supervisors to DeLeonibus. Those supervisors were not involved in the hiring process, and DeLeonibus never spoke with them when he reviewed Kania's file. Although the file included an evaluation from Lavezoli in which she stated that Kania was "willing to work, but cannot complete his duties in a timely manner,” no reference was made to Kania’s impairment.
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*350OPINION
AMBRO, Circuit Judge.
Matilda Shehaj petitions for review of an August 2008 decision of the Board of Immigration Appeals dismissing her appeal of the Immigration Judge’s order of removal.
We grant her petition.1
I.
Shehaj, a native and citizen of Albania, entered the United States in September 2004 by way of Toronto, Canada. She applied for asylum in the United States in September 2005 based on her fear that she would be forced into prostitution if she returned to Albania. In November 2005, the Department of Homeland Security charged Shehaj with being removable as an alien present in the United States without having been admitted or paroled. 8 U.S.C. § 1182(a)(6)(A)(i). During an April 2006 hearing, Shehaj conceded removability and elected to proceed with her asylum application and also to seek withholding of removal and protection under the Convention Against Torture.
The IJ held a hearing on Shehaj’s application in July 2006. Shehaj testified that, at the age of 15, she began a romantic relationship with a 24-year old man named Albert Meli. Meli was the first man Shehaj was romantically involved with, and Shehaj kept her relationship with Meli a secret from her family. When Shehaj’s cousin, Edmond Shehaj, found out about the relationship, he warned Shehaj that Meli’s family trafficked women for prostitution. Edmond believed that Meli’s uncle, Sokol Meli, was a trafficker who lived in Italy, where Edmond also lived. Shehaj testified that she believed Edmond’s story because Meli refused to talk with Shehaj about his family.
After learning this information, Shehaj told Meli what she had learned about his family and attempted to end the relationship. According to Shehaj, Meli admitted to her that he was a trafficker, professed his love for her, and told her, “I will take you, [and] there is no way and no one [who] could do anything to me.” Shehaj testified that she and her family did not tell the police their fears about Meli because they believed the police were connected with prostitution traffickers, which she learned from the news in Albania. Shehaj testified that she knew of other girls from her village, including a classmate, who were kidnapped and never found by the police.
According to Shehaj, Meli’s threatening phone calls persisted, and Edmond finally recommended to Shehaj’s mother that it would be “best if [Shehaj] doesn’t have a phone.” Edmond later met with Meli, and, following this meeting, recommended to Shehaj’s mother and brothers that She-haj leave Albania so that Meli could no longer threaten her. Shehaj’s family agreed, and her brothers living in Greece raised $20,000 to send her to the United States. Shehaj submitted affidavits from her mother, brother, and sister-in-law that corroborated her story about Meli and the decision to raise money to pay for Shehaj to flee the country.
Shehaj testified that in May 2005, after she entered the United States but before she filed for asylum, her cousin Edmond was murdered in Florence, Italy. Shehaj and her family believed that Sokol Meli killed Edmond because he had urged She-haj to flee Albania. During the July 2006 hearing, Shehaj submitted Edmond’s Albanian death certificate (which did not list the cause or location of death) and an Italian newspaper article concerning Ed*351mond’s death, which, although poorly translated, reported that Sokol Meli was a focus of the inquiry.
During the hearing, the Government introduced a two-page record of an airport interview conducted by Canadian border officials who detained Shehaj when she arrived in Toronto. This record (entitled “Examining Officer Notes”) reflects that Shehaj told the officials that there was a “blood war” between her family and another Albanian family, that someone from that family was “bothering” her, and that she feared they would try to smuggle her into Italy. Shehaj also told Canadian officials that her uncle and two of her cousins were killed by the other family. When the IJ confronted Shehaj with the record from the airport interview, Shehaj admitted that her story about the “blood war” was not completely truthful. Although Shehaj maintained that there was, in fact, a feud between her family and another Albanian family, and that her uncle and two cousins had been killed in the feud, Shehaj admitted that the feud was political in nature and had nothing to do with her.2 When asked why she had lied to the Canadian officials, Shehaj explained that the “snake-head” who accompanied her to Canada told her that she should say anything, “even stupid things,” so that the officials would release her.
The IJ stated that he was “unfortunately compelled” to find Shehaj incredible because of her admission that she had lied to the Canadian officials. The IJ accordingly denied Shehaj’s claims for asylum, withholding of removal, and CAT protection on that basis. The IJ noted that, aside from Shehaj’s untruthful statements during her airport interview, she had “a very strong case” for asylum, as her testimony was “consistent with country reports about problems that exist in Albania.”3 Although the IJ denied Shehaj’s claims, he granted Shehaj’s request for voluntary departure.
On appeal, the BIA held that the IJ’s adverse credibility determination was not clearly erroneous and dismissed Shehaj’s appeal. The BIA agreed that “the crucial fact [was] that [Shehaj] admitted that she lied to Canadian officials and fabricated a story so that she would be released.” The BIA also stated that Shehaj “made no mention, as she now claims, of a fear of being trafficked and forced into prostitution.”
Shehaj filed a timely petition for review of the BIA’s decision.4
II.
Where “the BIA both adopts the findings of the IJ and discusses some of the bases for the IJ’s decision, we have authority to review the decisions of both the IJ and the BIA.” Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir.2004); see also Xie v. *352Ashcroft, 359 F.3d 239, 242 (3d Cir.2004). Adverse credibility determinations are factual findings that we review under the substantial evidence standard, Xie, 359 F.3d at 243; we must uphold a credibility determination unless “any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); Xie, 359 F.3d at 243. However, the IJ must provide “specific, cogent reasons” for his or her findings, and adverse credibility determinations based on “speculation or conjecture, rather than on evidence in the record, are reversible.” Dia v. Ashcroft, 353 F.3d 228, 249 (3d Cir.2003) (en banc) (quoting Gao v. Ashcroft, 299 F.3d 266, 272, 276 (3d Cir.2002)).
Under the REAL ID Act of 2005, credibility determinations may be made “without regard to whether an inconsistency, inaccuracy, or falsehood goes to the heart of the applicant’s claim.” Pub.L. No. 109-13, § 101(a)(3)(B)(iii), 119 Stat. 231, 303 (2005) (codified at 8 U.S.C. § 1158(b)(l)(B)(iii)).5 However, an adverse credibility determination may only be made after “[cjonsidering the totality of the circumstances, and all relevant factors,” which may include “the consistency between the applicant’s ... written and oral statements ... and ... the circumstances under which the statements were made.” Id. See also Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir.2008) (holding that, under the REAL ID Act, “an IJ may rely on any inconsistency or omission in making an adverse credibility determination as long as the ‘totality of the circumstances’ establishes that an asylum applicant is not credible”) (emphasis in original).
III.
In his oral decision, the IJ identified three grounds for his adverse credibility determination: (1) Shehaj’s testimony that Meli never physically abused her; (2) She-haj’s failure to submit a police report concerning her cousin’s death; and (3) She-haj’s inconsistent statement to Canadian authorities at the Toronto airport. Understandably, neither of these first two grounds was discussed by the BIA, as each relates to whether Shehaj presented sufficient evidence in support of her claims, not her credibility. See Chen v. Gonzales, 434 F.3d 212, 221 (3d Cir.2005) (“[I]t is clear that the BIA’s own rule requires a credibility determination to be independent of an analysis of the sufficiency of an applicant’s evidence.”); Abdulai v. Ashcroft, 239 F.3d 542, 551 n. 6 (3d Cir.2001) (“A failure of proof is not a proper ground per se for an adverse credibility determination. The latter finding is more appropriately based upon inconsistent statements, contradictory evidence, and inherently improbable testimony.”) (emphasis in original).
That leaves the inconsistency between Shehaj’s airport interview and her testimony before the IJ as the sole basis for the IJ’s adverse credibility determination. Importantly, the IJ appears to have found Shehaj credible during the hearing, noting that Shehaj had been “candid and honest” during her testimony, and had “readily admitted” that she had lied to Canadian border officials. The IJ nonetheless determined that he “ha[d] to [make] a negative credibility finding” in light of Shehaj’s admission that she had not been truthful with Canadian authorities. In so reasoning, the IJ failed to consider whether “the totality of the circumstances[ ] and all relevant factors” supported the adverse credibility determination. 8 U.S.C. § 1158(b)(l)(B)(iii). In particular, the IJ did not address (much less discredit) She-haj’s explanation for her false statements *353during the airport interview, or explain why that explanation was inadequate. See, e.g., Singh v. Gonzales, 439 F.3d 1100, 1106 (9th Cir.2006) (“Because ‘an adverse credibility finding is improper where an IJ fails to address a petitioner’s explanation for a discrepancy or inconsistency,’ this testimony does not provide substantial evidence to support an adverse credibility determination.”) (quoting Kaur v. Ashcroft, 379 F.3d 876, 887 (9th Cir.2004)); Diallo v. Gonzales, 445 F.3d 624, 629 (2d Cir.2006) (“[A] petition for review may be granted in the face of an adverse credibility decision by the IJ when she fails to ‘engage or evaluate’ an asylum applicant’s explanations for apparent inconsistencies in the record.”) (quoting Latifi v. Gonzales, 430 F.3d 103, 105 (2d Cir.2005)).
The IJ’s adverse credibility determination is particularly problematic because he relied solely on inconsistent statements made during Shehaj’s airport interview. “It is established in this Circuit that inconsistencies between an airport statement and an asylum seeker’s testimony before an IJ is not sufficient, standing alone, to support a BIA finding that the petitioner was not credible.” Fiadjoe v. Att’y Gen., 411 F.3d 135, 159 (3d Cir.2005) (citing Balasubramanrim v. INS, 143 F.3d 157, 164 (3d Cir.1998)). We have disfavored reliance on statements made during an airport interview because “[s]uch an interview is likely to be hurried; language difficulties arise; the results may be inaccurately recorded!;] and an arriving alien who has suffered abuse in his home country may be reluctant to reveal full information in his or her first meeting with the government.” Id.
Many of the problems with airport interviews that we identified in Fiadjoe apply to Shehaj’s airport interview. First, She-haj — who was only 17 years old at the time — testified that she was “disoriented” during the interview and could not understand all the questions. Shehaj did not have counsel during the interview, and, although an interpreter was present, he or she apparently participated over the phone.6
Second, it is apparent that the record of the airport interview is incomplete. Although Shehaj testified that the interview lasted approximately two hours, the record is only one-and-a-half pages long, and lists only 22 total questions and answers. Moreover, the sequence of questions reflected in the officer notes confirms that the entire interview was not recorded. For example, immediately following a question regarding who Shehaj wished to be her legal guardian, the border official asked Shehaj to identify the people who wanted to “smuggle!] [her] into Italy.” This is the first reference to “smuggling” in the officer notes, which strongly suggests that a substantial portion of the interview was not recorded. On the basis of this record, it is impossible to know whether Shehaj also mentioned her fear of being forced into prostitution during the interview.7 Accordingly, to the extent the IJ and the BIA relied on the fact that Shehaj had not told Canadian authorities about *354her fear of being forced into prostitution, that finding is not supported by the record. See Dia, 353 F.3d at 249.
Finally, even assuming that Shehaj omitted her fear of being forced into prostitution during her airport interview, we do not believe that omission, by itself, required the IJ to find Shehaj incredible. In this context, it is quite possible that a 17-year old female might be hesitant to disclose to border officials in a foreign country her fears of being forced into prostitution. See, e.g., Fiadjoe, 411 F.3d at 159 (“Finding herself in a strange place before a male officer it is not surprising that Ms. Fiadjoe would be unable to discuss the shameful and taboo incidents of incestuous rape.”); see also Ramsameachire v. Ashcroft, 357 F.3d 169, 179 (2d Cir.2004) (“[Bjecause those most in need of asylum may be the most wary of governmental authorities, the BIA and reviewing court must recognize, in evaluating the statements made in an interview, that an alien may not be entirely forthcoming in the initial interview”). Accordingly, the inconsistency between Shehaj’s statements to Canadian officials and her testimony before the IJ, which included her “honest and candid” admission that she had not been truthful during her airport interview, hardly required a finding that Shehaj was not credible.
* :|: * * * *
In sum, we conclude that the IJ’s and BIA’s adverse credibility determination is not supported by substantial evidence. In so holding, we are not finding Shehaj credible. Dia, 353 F.3d at 260. Rather, we conclude that “because of the lack of substantial evidence to support the adverse credibility determination, we [must] remand in order for the [BIA] to further explain or supplement the record.” Id.; see also Senathirajah v. INS, 157 F.3d 210, 222 (3d Cir.1998) (remanding to BIA with instructions to remand to IJ for decision on asylum and withholding of removal, but without consideration of prior erroneous adverse credibility findings). Accordingly, we grant Shehaj’s petition for review, vacate the BIA’s decision, and remand8 for further proceedings consistent with this opinion on Shehaj’s claims for asylum, withholding of removal, and relief under the CAT.9
. The BIA had jurisdiction under 8 C.F.R. § ¡003.1(b). We have jurisdiction under 8 U.S.C§ 1252(a).
. Shehaj stated in an affidavit submitted to the IJ that her grandfather had been a "high-ranking law enforcement official under the [regime] of former King Zogu of Albania,” and that, following the Communist takeover of Albania, her family was "severely mistreated ... and ... labeled an enemy of the state.”
. The 2005 State Department Country Report on Human Rights Practices in Albania, which Shehaj submitted in support of her asylum application, notes that Albania "remain[s] a source country for trafficking of women and children for the purposes of sexual exploitation and forced labor.” The main form of recruitment was "marriage under false pretenses or false promises of marriage.” The State Department Country Report also states that "police were often involved directly or indirectly in trafficking,” but few were investigated or charged with crimes, as traffickers frequently were able to “manipulate! ] lawyers and judges and bribe[ ] their way out of punishment.”
.In October 2008, we granted Shehaj's motion for a stay of removal.
. The REAL ID Act applies to Shehaj’s claims because her application was filed after the Act’s effective date (May 11, 2005). Pub.L. No. 109-13 § 101(h)(2), 119 Stat. at 305.
. The record from the airport interview bears the words "signed by phone” under "interpreter.”
. Neither the IJ nor the Government asked Shehaj whether she mentioned her fear of being forced into prostitution during the airport interview. During his closing statement, Shehaj’s counsel highlighted the incomplete nature of the airport interview record, and argued that it was "very possible that there was a discussion off the record about the problem that [Shehaj] discusse[d] today before the court.”
The IJ rejected Shehaj's argument, noting that Shehaj could have requested additional records from Canadian officials if she believed the record was incomplete. The examining officer notes, however, appear to confirm that they are the complete record of the *354interview: the bottom of the first page says “page 1 of 2,” and the bottom of the second page says "page 2 of 2.” The IJ did not address Shehaj's argument that, in light of the apparent completeness of the record, it was unlikely there was any other record available. Cf. Abdulai, 239 F.3d at 554 (in analyzing whether an asylum applicant has failed to present sufficient corroborating evidence, the IJ must engage in an “analysis of whether the applicant has adequately explained” the absence of a particular corroborating record). In this context, it does not appear that the IJ conducted any independent analysis of whether the record of the airport interview was sufficiently reliable. See Ramsameachire v. Ashcroft, 357 F.3d 169, 179 (2d Cir.2004) ("[Tlhe BIA and reviewing courts must closely examine each airport interview before concluding that it represents a sufficiently accurate record of the alien’s statements to merit consideration in determining whether the alien is credible.”).
. In September 2008, Shehaj’s brother, Artur Shehaj, was granted asylum based on his fear that, should he return to Albania, he would be persecuted for helping Shehaj flee the country. In November 2009, Shehaj filed a motion to remand on this ground, or in the alternative, to hold our decision in abeyance pending a possible stipulation between the parties regarding a remand. Because we grant Shehaj’s petition for review, we deny her motion to remand as moot.
. The Government argues that we should affirm the denial of Shehaj's claim under the CAT because "both the Board and the immigration judge considered Shehaj's CAT pro*355tection claim apart from her asylum and withholding of removal claims.” See Zubeda v. Ashcroft, 333 F.3d 463, 476 (3d Cir.2003) (“[Cjlaims for relief under the [CAT] are analytically separate from claims for asylum ... and for withholding of removal under [the INA].") (quoting Kamalthas v. INS, 251 F.3d 1279, 1283 (9th Cir.2001)). Although the IJ separately addressed Shehaj’s CAT claim in his oral decision, he simply stated that, "[fjor the reasons detailed above, [Shehaj's] claims are not credible,” and that Shehaj had “failed to present any additional evidence to indicate she is more likely than not to be tortured if removed to Albania.” The BIA merely restated the IJ’s conclusion in its opinion. In these circumstances, we cannot help but conclude that the IJ’s erroneous adverse credibility determination impermissibly ”ble[d] through to the BIA’s [and the IJ’s] consideration of [Shehaj's] claim under the [CAT] without further explanation.” Id. Accordingly, we also vacate the BIA's denial of Shehaj's claim for CAT relief.
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OPINION
PER CURIAM.
Maria Jimenez petitions for review of the Board of Immigration Appeals’ (“BIA”) final order of removal. For the following reasons, we will dismiss her petition.
I.
Jimenez, a native and citizen of Ecuador, arrived in the United States without inspection in 1993. She married a United *356States citizen in 1997 and was granted conditional permanent resident status, but the couple divorced in 2001. In 2005, the Department of Homeland Security (1) terminated her conditional permanent resident status after finding that the couple entered into the marriage solely for immigration purposes, and (2) commenced removal proceedings against her on that basis. Before the Immigration Judge (“IJ”), Jimenez challenged the termination of her status and sought cancellation of removal under 8 U.S.C. § 1229b(b) on the grounds that her removal would result in extreme hardship for her two United States citizen children (then five and thirteen years of age). The IJ denied relief on both grounds, and the BIA dismissed Jimenez’s resultant appeal. She petitions for review, and the Government has filed a motion to dismiss her petition for lack of jurisdiction.
II.
The only issue that Jimenez raises on review is whether the IJ and BIA erred in determining that she had not demonstrated that her children would suffer sufficient hardship to warrant cancellation of her removal. Jimenez concedes that 8 U.S.C. § 1252(a)(2)(B) ordinarily would deprive us of jurisdiction to review that ruling because it is a discretionary decision. See Cospito v. Att’y Gen., 539 F.3d 166, 170 (8d Cir.2008); Mendez-Moranchel v. Ashcroft, 388 F.3d 176, 179 (3d Cir.2003). She argues, however, that she has raised questions of law that we retain jurisdiction to review. See 8 U.S.C. § 1252(a)(2)(D). The Government counters that we lack jurisdiction because Jimenez’s purported questions of law are not colorable and she instead essentially take issue with the IJ’s and BIA’s exercise of discretion. See Cospito, 539 F.3d at 170-71; Jarbough v. Att’y Gen., 483 F.3d 184, 189-90 (3d Cir.2007). We agree with the Government and will dismiss the petition for review on that basis.1
To obtain cancellation of removal, a non permanent resident like Jimenez must demonstrate, inter alia, that her “removal would result in exceptional and extremely unusual hardship to the alien’s spouse, parent, or child” who is either a United States citizen or a lawful permanent resident. 8 U.S.C. § 1229b(b)(l)(D). The BIA interpreted this standard in In re Monreal-Aguinaga, 23 I. & N. Dec. 56 (BIA 2001). In that case, the BIA held that the requisite hardship “must be ‘substantially’ beyond the ordinary hardship that would be expected when a close family member leaves this country.” Id. at 62. The BIA further explained that, although the hardship need not be “unconscionable,” the effect of its standard was to limit cancellation of removal to “ ‘truly exceptional’ situations[.]” Id. at 60-61 (citation omitted). The BIA set forth a number of factors to consider in making that determination, including “the ages, health, and circumstances” of the qualifying relatives. Id. at 63. By way of example, the BIA noted that “a qualifying child with very serious health issues, or compelling special needs at school” might present a strong application. Id.
In this case, the IJ expressly cited and applied the standard set forth in In re Monreal-Aguinaga. (IJ Dec. at 9-11.) The IJ determined, after weighing the relevant factors, that although Jimenez’s children might suffer emotional, psychological and economic deprivations if she is removed to Ecuador, “there is nothing in *357this record to suggest that the hardship that these children would suffer ... is anything other than the hardship that would be present in the vast majority of cases.” (Id. 11.) Among other things, the IJ noted that “there is no evidence at all that either of the children have any physical problems that require treatment in the United States. So, that aspect is certainly not present.” (Id. at 10.) The BIA dismissed Jimenez’s appeal after explaining that the IJ applied the correct standard and considered the relevant factors. (BIA Dec. at 3.)
On review, Jimenez raises essentially three arguments that she characterizes as questions of law. None of them is color-able. First, she argues that, contrary to In re Monreal-Aguinaga, the IJ effectively required a showing of an “unconscionable” hardship by focusing on the fact that her children do not have serious medical needs requiring treatment in the United States. The health of her children, however, is a relevant consideration under In re Monreal-Aguinaga, and the IJ did not focus solely on that factor. Nor did the IJ apply an “unconscionable” hardship standard. Instead, he expressly cited and applied the proper standard under In re Monreal-Aguinaga, as did the BIA.
Second, Jimenez argues that In re Mon-real-Aguinaga, together with the BIA’s subsequent decisions in In re Andazola-Rivas, 23 I. & N. Dec. 319 (BIA 2002), and In re Recinas, 23 I. & N. Dec. 467 (BIA 2002), do not require that the hardship be “substantially beyond the ordinary hardship” (as each expressly states). She argues that those decisions require instead only a “hardship that would place the Petitioner in a small select group of persons suffering a unique form of hardship that is selective rather than too substantial or unconscionable.” (Petr.’s Br. at 8.) Whatever that standard might mean, there is no support for it in the BIA’s decisions. In re Andazola-Rivas and In re Reciñas expressly reaffirmed the standard set forth in In re Monreal-Aguinaga, and Jimenez’s argument to the contrary “does not even reach the level of being colorable.” Barco-Sandoval v. Gonzales, 516 F.3d 35, 40 (2d Cir.2008) (holding that similar argument did not raise a colorable question of law for purposes of jurisdiction).
Finally, Jimenez argues that the IJ misapplied In re Monreal-Aguinaga by failing to weigh all the relevant factors, in particular by failing to “indicate whether the United States children are capable of reading, writing and speaking fluently in Spanish.” (Petr.’s Br. at 7-8.) Leaving aside the fact that, as the Government argues, there is ample evidence of record that Jimenez’s children are at least minimally fluent in Spanish, the IJ specifically noted Jimenez’s testimony that “her children do not know as much Spanish as she would like for them to know,” (IJ Dec. at 7-8), and the BIA noted the potential relevance of language difficulties in summarizing In re Recinas, (BIA Dec. at 3). Thus, there is no colorable basis for arguing that the IJ or BIA departed from In re Monreal-Aguinaga in this regard.
In sum, Jimenez has not raised any colorable question of law, and her challenges to the IJ’s and BIA’s rulings essentially take issue with the manner in which they balanced the relevant factors. Those are discretionary decisions that we lack jurisdiction to review. See 8 U.S.C. § 1252(a)(2)(B); Cospito, 539 F.3d at 170; Mendez-Moranchel, 338 F.3d at 179. Accordingly, the Government’s motion to dismiss is granted and we will dismiss the petition for review.
. We, of course, have jurisdiction to determine our jurisdiction. See Biskupski v. Att’y Gen., 503 F.3d 274, 279 (3d Cir.2007). In making that determination, we review the decisions of both the IJ and the BIA because the BIA essentially summarized and deferred to the IJ's more detailed discussion. See Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir.2004).
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OPINION
PER CURIAM.
I.
Petitioner Shi Wen Lin seeks review of the Board of Immigration Appeals’ (“BIA”) final order of removal. In its order, the BIA affirmed the Immigration Judge’s (“IJ”) decision to deny Lin’s application for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). We will deny the petition.
II.
Lin, a native and citizen of China, entered the United States without valid entry documents in October 2004 and was taken into custody by the Department of Homeland Security (“DHS”). Following his credible fear interview, Lin filed a formal application for asylum, withholding of removal, and CAT protection, claiming that he had been persecuted in China by family planning officials because of his opposition to his wife’s forced abortion.
In his asylum application, Lin stated that in June 2004, his then-girlfriend became pregnant. Because they were both under the legal age for marriage at the time, they decided to marry in a “traditional ceremony,” but without the permission of Chinese family planning officials. Ten days later, Lin claimed that planning officials came to his home and told his wife that she had to abort the child, directing Lin to take her to a local clinic. Lin verbally rejected the directive and alleges that he was beaten as a result.
Later that night, Lin and his wife went into hiding. Six days later, Lin fled China for the United States alone. In his asylum application, Lin stated that he believes that if he is returned to China, he will be jailed indefinitely and beaten for his opposition to the country’s family planning policies.
After identifying several evidentiary gaps in the record, the IJ denied Lin’s request for asylum. Specifically, the IJ found that Lin failed to provide the court with any identification documents, either for himself or establishing his marital status, and that it was reasonable for him to have done so based on his testimony that his uncle was in possession of, at least, his birth records. In addition, the IJ found that Lin failed to provide any evidence that he sustained any medical problems or sought medical treatment following his alleged beating at the hands of Chinese family planning officials.
Furthermore, even if Lin had sustained an injury as a result of his resistance, the incident did not satisfy his burden of establishing past persecution. The IJ also rejected Lin’s argument that he will sustain future persecution on account of his resistance if he is returned to China as his testimony regarding his fear was both implausible and inconsistent with country conditions as reflected in the record evidence.
On appeal, the BIA affirmed the IJ’s decision, finding that on the merits of Lin’s case, there was insufficient evidence to show that the single alleged beating rose to the level of persecution, or that Lin would be killed or imprisoned for life if he returned to China.
III.
This Court has jurisdiction to review final orders of removal. See 8 U.S.C. § 1252(a). “[W]hen the BIA both adopts the findings of the IJ and discusses some of the bases for the IJ’s decision, we have authority to review the decisions of both *360the IJ and the BIA.” Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir.2004). The BIA’s factual determinations are upheld if they are supported by reasonable, substantial, and probative evidence on the record considered as a whole. INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992) (citing 8 U.S.C. § 1105a(a)(4)).
We recently held that there is no automatic refugee status for spouses or unmarried partners of individuals subjected to coercive population control policies. LinZheng v. Att’y Gen., 557 F.3d 147, 157 (3d Cir.2009) (en banc). However, spouses remain eligible for relief if they can establish their own persecution for resisting China’s coercive reproductive policy or a well-founded fear of future persecution for that resistance. See 8 U.S.C. § 1101(a)(42). We agree with the BIA that Lin is unable to make such a showing.
Lin argued in his asylum application that he was persecuted when he resisted the directive of Chinese family planning officials to take his wife for an abortion. As a result of his resistance, Lin claims that he was beaten and that soon thereafter, he fled the country. A-though we sympathize with Lin’s predicament, we have previously held that a single alleged beating that does not result in any injuries that require medical attention does not constitute persecution. See Chen v. Ashcroft, 381 F.3d 221, 235 (3d Cir.2004). As mentioned earlier, Lin did not provide any evidence that he sought medical attention following the alleged incident. Accordingly, we are compelled to conclude that the BIA’s ruling that Lin failed to show past persecution is supported by substantial evidence.
Having failed to show past persecution, Lin is not entitled to a rebuttable presumption that he has a well-founded fear of future persecution. See 8 C.F.R. § 208.13(b)(1); Lukwago v. Ashcroft, 329 F.3d 157, 174 (3d Cir.2003). In order to establish a well-founded fear of future persecution, Lin must show that his fear of persecution upon his return to China is genuine and is objectively reasonable. See Abdille v. Ashcroft, 242 F.3d 477, 495-6 (3d Cir.2001). The BIA concluded that Lin’s reasons for fearing persecution upon his return to China were not plausible and inconsistent with the background evidence that he provided with his application for asylum. We agree. The 2003 and 2005 U.S. Department of State Country Reports that Lin included with his application simply do not support his claim that he will likely be killed or given a life sentence in prison for his prior resistance to his wife’s abortion.1
Lastly, Lin argues that he should be granted relief because his due process rights were violated as a result of his prior counsel’s deficient performance. He further argues that the BIA should have exercised its sua sponte authority and remanded the proceedings so that Lin could be represented by competent counsel before the IJ.
An ineffective assistance of counsel claim may be considered as a due process violation if a petitioner follows the procedural requirements set forth in Matter of Lozada. Zheng v. Gonzales, 422 F.3d 98, 106 (3d Cir.2005) (citing Lozada, 19 I. & N. Dec. 637, 639 (B.I.A.1988)). This Court does not have jurisdiction to hear a Lozada claim when an alien has not brought that claim before the BIA. See 8 U.S.C. *3611252(d); see also Abdulrahman v. Ashcroft, 330 F.3d 587, 594-95 (3d Cir.2003). Because Lin did not raise an ineffective assistance of counsel claim, in any form, before the BIA, we lack jurisdiction to hear the claim.
Accordingly, we will deny the petition for review.
. Additionally, withholding of removal under the CAT is warranted only if a petitioner can show that "it is more likely than not” that he would be tortured if ordered removed. See 8 C.F.R. § 1208.16(c)(2). We agree that Lin was unable to make such a showing before the IJ.
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OPINION
PER CURIAM.
Petitioner Long Quan Piao, an ethnically Korean citizen of China, entered the United States without inspection after crossing the border at Texas on August 24, 2007. He is removable under Immigration & Nationality Act (“INA”) § 212(a)(6)(A)(i), 8 U.S.C. § 1182(a)(6)(A)(i), as an alien who is present in the United States without being admitted or paroled. On October 15, 2007, Piao applied for asylum under INA § 208(a), 8 U.S.C. § 1158(a), withholding of removal under INA § 241(b)(3), 8 U.S.C. § 1231(b)(3), and for protection under the Convention Against Torture, 8 C.F.R. §§ 1208.16(c), 1208.18, claiming a fear of persecution, that is, arrest and prosecution, on account of his past efforts to assist two North Korean refugees who crossed the border near his house.
In his asylum application, Piao stated that he was born on October 3, 1971 in Longjing City, Jilin Province, where the Korean Chinese live in a “compact” community. A.R. 157. Longjing City is separated from North Korea by a river which freezes solid in the winter, providing a way for North Koreans to enter China illegally. On the morning of December 2, 2006, Piao found a man and a boy lying in his yard when he opened the door. See id. They kneeled down and begged him not to report them. They were hungry and pale, and Piao decided to help them. He let them stay at his house. See id. During the night the North Korean man told of his and his wife’s attempt to flee North Korea. His wife had been captured and he feared she might already be dead. See id.
On December 10, 2006, according to Piao’s statement in support of his asylum application, the police raided his house. A.R. 161. He was arrested and the North Korean refugees were taken away.1 At the police station, he was interrogated and beaten with a baton, so badly that at one point he lost consciousness. See id. During the detention, he was made to do physical labor and to write a statement of confession. On December 20, 2006, Piao was released from jail after promising not to give further aid to North Korean refugees. See id. After Piao was released, he was ordered to write a “self-criticism statement” at home, and he was required to report every week to the police station. *363Id. Piao was followed by the police continuously thereafter and he became frightened and restless. See id. At the urging of his wife, who already was in the United States, he made the decision to flee China.
The Immigration Judge held a merits hearing on July 28, 2008, at which Piao testified. He was represented by counsel, and, in support of his application he submitted a Medical Diagnosis Certificate, which indicated that he was evaluated on January 8, 2007 at KaishanTun Town Hospital of Longjing City for injuries to his head and face. A.R. 104. The certifícate stated that hospitalization was recommended. In addition, the 2007 State Department Country Report on Human Rights Practices for China was admitted into evidence, A.R. 38-100, and it states that the Chinese government does not protect North Korean refugees. It forces their repatriation even though there is reason to fear that they will be persecuted upon their return and some might even be executed. A.R. 59. The government also arrests ordinary citizens who provide food, shelter and other assistance to North Koreans. See id. At the conclusion of the hearing, the IJ denied all relief and ordered Piao removed to China. A.R. 30-31. The IJ’s Order stated that any appeal was due by August 27, 2008. See id.
Piao’s counseled Notice of Appeal from a Decision of an Immigration Judge, A.R. 19-22, was received by the Board of Immigration Appeals on August 29, 2008, two days beyond the due date. In a decision dated September 22, 2008, the Board dismissed the appeal as untimely because it was due on August 27, 2008. The Board reasoned that a Notice of Appeal (Form EOIR-26) must be filed -within 30 calendar days of an Immigration Judge’s oral decision under 8 C.F.R. § 1003.38(b) (“The Notice of Appeal to the Board of Immigration Appeals of Decision of Immigration Judge (Form EOIR-26) shall be filed directly with the Board of Immigration Appeals within 30 calendar days after the stating of an Immigration Judge’s oral decision or the mailing of an Immigration Judge’s written decision.”). See also 8 C.F.R. § 1003.38(c) (“The date of filing of the Notice of Appeal (Form EOIR-26) shall be the date the Notice is received by the Board.”).
On October 17, 2008, Piao, now proceeding pro se, attempted to file a motion for reconsideration of the Board’s dismissal of his appeal. The Board rejected the motion for failure to include the required filing fee or a fee waiver request form, and failure to properly serve the Department of Homeland Security. On October 28, 2008, Piao re-filed his motion, and it was accepted by the Board. Piao contended that retained counsel violated his right to due process by missing the appeal deadline. Piao alleged generally and without discussion that he was prejudiced by counsel’s performance and he asked to be allowed to file a brief. A.R. 8-9.
In a decision dated April 9, 2009, the Board denied reconsideration on three grounds: (1) the October 28, 2008 reconsideration motion was untimely because it was not filed within 30 days of the Board’s September 22, 2008 decision as required by 8 C.F.R. § 1003.2(b); (2) the motion failed to demonstrate prejudice under Matter of Compean, 24 I. & N. Dec. 710, 734-35 (A.G.2009), which states that to prevail on a deficient performance of counsel claim, an alien must establish that it is more likely than not that he would have been entitled to the ultimate relief he was seeking; and (3) Piao failed to comply with the procedural requirements of Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988).
Piao timely petitions for review of the Board’s decision denying his motion for reconsideration. A motions panel of this Court granted his motion for a stay of removal.
*364We will deny the petition for review. We have jurisdiction under 8 U.S.C. § 1252(a)(1), (b)(1). Review of the Board’s denial of a motion to reopen or motion for reconsideration is for abuse of discretion only. See Sevoian v. Ashcroft, 290 F.3d 166, 174 (3d Cir.2002). See also Immigration & Naturalization Serv. v. Abudu, 485 U.S. 94, 96, 108 S.Ct. 904, 99 L.Ed.2d 90 (1988). Under this standard, we will reverse the Board’s decision only if it is arbitrary, irrational, or contrary to law. Sevoian, 290 F.3d at 174. See also Shardar v. Att’y Gen. of U.S., 503 F.3d 308, 311-12 (3d Cir.2007). The Board first decided that Piao’s motion for reconsideration was untimely because it was not filed within 30 days of the Board’s September 22, 2008 decision, as required by 8 C.F.R. § 1003.2(b)(2). However, as the government has noted in its brief, see Respondent’s Brief, at 6 n. 2, although Piao styled his motion as one for reconsideration, he cited new evidence — the alleged ineffective assistance of his former counsel — in support of the motion. A motion to reconsider properly challenges determinations of law and fact already made by the Board. 8 C.F.R. § 1003.2(b)(1). In contrast, a motion to reopen seeks to present new facts that would entitle the alien to relief from removal. 8 C.F.R. § 1003.2(c)(1). Since Piao sought to introduce new facts concerning his prior counsel’s negligence in filing the notice of appeal to the Board two days late, his motion was properly construed as a motion to reopen. A motion to reopen must be filed no later than ninety (90) days after the date on which the final administrative decision was rendered. See id. at 1003.2(c)(2). As such, Piao’s motion was timely filed, and the Board’s conclusion that it was not is contrary to law. Sevoian, 290 F.3d at 174.
The Board next held, in summary fashion, that Piao’s motion for reconsideration did not demonstrate that he suffered prejudice under the Compean standard, and, in fact, he felt “well short” of showing that he would have prevailed on his claim for asylum. A.R. 2. Piao contends in his brief on appeal that the Board erred by holding him to the Compean standard of prejudice because he filed his motion before Compean was announced by the Attorney General. Moreover, the record evidence shows that he has at least a substantial possibility of success on the merits of his asylum and withholding claims. See Appellant’s Informal Brief, at 3. The government counters that Piao has failed to demonstrate prejudice even under the pre-Compean standard for judging deficient performance claims. See Respondent’s Brief, at 15.
The Board decided Piao’s motion during the five-month window when Compean, 24 I. & N. Dec. 710, was in effect,2 and we note that Compean’s prejudice standard was intended to apply regardless of when the petitioner’s motion to reopen was filed, see id. at 741. In Compean, the Attorney General ruled that, to establish prejudice arising from a lawyer’s deficient performance, the alien must show that, but for the deficient performance, it is more likely than not that he would have been entitled to the ultimate relief he was seeking, see id. at 733-34. Compean’s “more likely than not” standard was considered by the Attorney General to be truer to the Fifth Amendment than a “reasonable probability” standard. 24 I. & N. Dec. at 734.3
*365However, quite apart from what standard for judging counsel’s allegedly deficient performance applied, or should have applied, are questions about the Board’s basis for making any prejudice determination at all in Piao’s case. On June 23, 2009, the Certified Administrative Record was filed in this Court. It contained, in pertinent part, Piao’s asylum application, the Medical Diagnosis Certificate, the 2007 State Department Country Report, the IJ’s Order, and Piao’s Notice of Appeal, in which he contended in the “statement of reasons” box, A.R. 20, that the IJ focused on minor inconsistencies between his testimony and his asylum application in failing to credit his account of being persecuted by Chinese authorities for aiding North Korean refugees. The Certified Administrative Record did not contain the IJ’s Oral Decision, and it also did not contain the transcript from the July 28, 2008 merits hearing. In emphatically concluding that Piao’s showing of prejudice fell “well short” of Campean, the Board made no references whatever to the IJ’s reason for his conclusion that Piao did not qualify for asylum or withholding of removal, made no references to the hearing transcript, and omitted any substantive analysis of whether the IJ improperly focused on minor inconsistencies in failing to credit Piao’s overall case. A prejudice determination based solely on Piao’s motion and without the benefit of at least the IJ’s reasoning was irrational. Sevoian, 290 F.3d at 174.4
Last, the Board denied Piao’s motion on the ground that he failed to comply with the procedural requirements of Matter of Lozada, 19 I. & N. Dec. 637. A due process claim based on an allegation of ineffective assistance of counsel must meet certain procedural requirements established by the Board. See Lu v. Ashcroft, *366259 F.3d 127, 132 (3d Cir.2001) (discussing the Lozada requirements). These procedural requirements, which we have concluded are generally reasonable, see Zheng v. Gonzales, 422 F.3d 98, 106 (3d Cir.2005); Lu, 259 F.3d at 132, are that: (1) the alien must support the claim with an affidavit that sets forth in detail the agreement that was entered into with former counsel with respect to the actions to be taken on appeal and what counsel did or did not represent to the petitioner in this regal'd; (2) the alien must inform former counsel of the allegations and provide counsel with the opportunity to respond, and this response should be submitted with the motion alleging ineffective assistance, and (3) the alien must state whether a complaint has been filed with appropriate disciplinary authorities, and if not, why not. Lu, 259 F.3d at 132 (citing Lozada, 19 I. & N. Dec. at 639). We have not required strict compliance with the Lozada procedural requirements where their purpose is fully served by other means. Lu, 259 F.3d at 134 (alien’s failure to file disciplinary complaint against his former attorney is not fatal to his claim of ineffective assistance where he provides reasonable explanation for his failure to do so).
Here, Piao failed to comply with any of the Lozada requirements and, especially with respect to the first two requirements, their purpose has not been fully served by other means. Piao did not set forth in detail the agreement he had with former counsel with respect to the actions to be taken on appeal and what counsel did or did not represent to him in this regard, nor did he state that he informed counsel about his allegations and invited him to respond. Moreover, in his brief on appeal, Piao states only that his allegations of ineffectiveness should be considered on the merits even though he did not comply with the bar complaint requirement. See Informal Brief, at 4. Piao has made no attempt to explain why he has omitted certain relevant facts about his agreement with former counsel with respect to taking an appeal to the Board.
Because of the failure to comply even minimally with the Lozada requirements, the Board had no way to evaluate effectively whether former counsel’s performance was, in fact, deficient. Nor do we. The Notice of Appeal, A.R. 19-22, indicates that both Piao and his former counsel signed the Notice of Appeal on its due date, August 27, 2008, A.R. 20-21. Former counsel signed the Proof of Service, which indicates only that the Notice of Appeal was “mailed or delivered” on “8-27-08 to Chief Counsel Office at 970 Broad St., Newark, NJ 07102.” A.R. 21 (emphasis added). A copy of a Postal Money Order dated August 26, 2008, only one day before the due date, and payable to the Board from Piao in the amount of $110.00, also appears in the Certified Administrative Record. A.R. 27. None of this information by itself explains why the Notice of Appeal was two days late.
Obviously, the Notice of Appeal, because it was not completed until the due date, had to be hand-delivered and not mailed, but because of Piao’s silence on the matter of the agreement between him and former counsel, the reason for the lateness could include factors beyond former counsel’s control or might even be attributable to Piao himself. Indeed, as the government suggests, the untimely filing may have been caused by factors beyond the control of either former counsel or Piao, such as an error on the part of the service they may have hired to deliver the Notice of Appeal. See Respondent’s Brief, at 13-14. Because the Board was left to speculate as to the cause of the late-by-only-two-days filing, it did not act arbitrarily, capriciously, or contrary to law in denying Piao’s motion seeking reopening of his appeal on the basis of former counsel’s alleged ineffective assistance. See Lu, 259 F.3d at 134 *367(denying petition for review where, in part, alien had not set forth relevant facts in sufficient detail as required by the first prong of Lozada).
We will deny the petition for review.
. Piao told the asylum officer that he thought a neighbor had reported him. A.R. 101.
. Compean was decided on January 7, 2009; the Board denied Piao’s motion on April 9, 2009. Compean was vacated (except to the extent that it affirmed on the merits) on June 3, 2009, 25 I. & N. Dec. 1.
. A claim of ineffective assistance of counsel in removal proceedings is cognizable under the Fifth Amendment as a violation of that amendment’s guarantee of due process. In Fadiga v. Att’y Gen. of U.S., 488 F.3d 142 (3d Cir.2007), we held that a prejudice standard *365similar to the one the Supreme Court established for Sixth Amendment ineffective assistance of counsel claims, namely "a reasonable probability that, but for counsel’s professional errors, the result of the proceeding would have been different,” should apply in the immigration context. Id. at 159.
. Following the filing of the Certified Administrative Record, our court staff made an informal request that the IJ's Oral Decision be produced. Cf. Fed. R.App. Pro. 16(a) ("The record on review or enforcement of an agency order consists of: (1) the order involved; (2) any findings or report on which it is based; and (3) the pleadings, evidence, and other parts of the proceedings before the agency.”); Fed. R.App. Pro. 16(b) (where omissions in record exist court may direct that supplemental record be prepared and filed); Consumers Union of U.S. v. Federal Power Comm’n, 510 F.2d 656, 661 (D.C.Cir.1975) (appellate Rule 16(b) "gives courts of appeals wide latitude in correcting omissions from the agency record under review”). The hearing tapes were located and the Oral Decision and hearing testimony were transcribed and provided to us (and to Piao) by the Office of Immigration Litigation. We have since reviewed the IJ's decision and Piao's hearing testimony, and we know, without reference to the Board's decision, that the IJ determined that Piao did not testify credibly on a crucial part of his story. See Immigration Judge's Decision, at 9-10. Piao testified that he was held for 28 days, and that he was released from detention on or about January 7, 2008. The January 8, 2007 Medical Diagnosis Certificate was intended to corroborate his testimony that he was released 28 days after December 10, 2007 and required immediate medical assistance for injuries suffered as a result of being beaten. In contrast, in his asylum application, Piao stated clearly that he was released on December 20, 2007, ten days after being arrested. See id. The IJ's finding of an inconsistency in this important part of Piao’s case is supported by comparing his hearing testimony, N.T., 7/28/08, at 32-33, 42-3, with his asylum application, A.R. 157, 161. Thus, we might independently conclude that counsel's alleged negligence in not timely appealing to the Board did not prejudice Piao's ultimate claim for asylum and withholding of removal, but our review is limited to whether the Board abused its discretion; it is for the Board in the first instance properly to address the question of prejudice.
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OPINION
PER CURIAM.
Hubert Johnson petitions for review of the Board of Immigration Appeals’ (“BIA”) September 26, 2008 decision sustaining the Government’s appeal of the Immigration Judge’s grant of relief under the Convention Against Torture (“CAT”). The Government has moved to dismiss the petition for review for lack of jurisdiction. For the reasons that follow, we will deny the Government’s motion and the petition for review.
I. Background
Johnson, a native and citizen of Jamaica who suffers from bipolar disorder, entered the United States as a lawful permanent resident in 1981. In 1986, a Florida state court convicted him of importing and possessing a controlled substance. In light of that conviction, he was ultimately placed in removal proceedings. In 1999, an Immigration Judge (“IJ”) ordered that he be removed to Jamaica, and the BIA subsequently affirmed that decision without an opinion.
*371In 2002, Johnson’s removal proceedings were reopened so that he could apply for relief under former 8 U.S.C. § 1182(c). While that application was pending, a federal district court convicted him of bank robbery, which rendered him ineligible for § 1182(c) relief. He then applied for CAT relief, arguing that, were he to return to Jamaica — where he had no family or other contacts — he would not have access to medication for his bipolar disorder. He further alleged that, because his bipolar disorder would be uncontrolled, he would likely come to the attention of the Jamaican authorities, who would imprison him and ultimately torture him because of his mental illness.
In October 2006, after a hearing on the merits, the IJ granted Johnson’s request for CAT relief. The Government appealed to the BIA, which sustained the appeal in February 2007. Johnson petitioned us to review the BIA’s decision, and we subsequently granted the Government’s motion to remand to the BIA for reconsideration of its decision. On remand, the BIA again held that Johnson had failed to establish his entitlement for CAT relief. He petitioned for review of that decision, and we sua sponte remanded the case so that the BIA could consider the impact of our recent decision in Lavira v. Attorney General of the United States, 478 F.3d 158 (3d Cir.2007). The BIA in turn remanded the case to the IJ, who issued a decision in May 2008 granting Johnson’s request for CAT relief. As before, the Government appealed the IJ’s decision to the BIA.
In September 2008, the BIA sustained the Government’s appeal. The BIA held that “[t]here is insufficient evidence in the record to support the [IJ’s] finding that [Johnson] will, more likely than not, be subjected to torture upon return to Jamaica.” (BIA Decision of Sept. 26, 2008, at 3.) The BIA reached this conclusion
even assuming, arguendo, that [Johnson] will likely be denied his medication, that he will, more likely than not, experience bipolar disorder symptoms if deprived of his medication, and that he will, more likely than not, come to the attention of law enforcement and be imprisoned as a result of such bipolar disorder symptoms and resulting actions.
(Id.)
Johnson petitioned for review of the BIA’s September 2008 decision, and the Government has since moved to dismiss the petition for lack of jurisdiction.
II. Jurisdiction
Although we generally lack jurisdiction to review final orders of removal against certain criminal aliens, like Johnson, see 8 U.S.C. § 1252(a)(2)(C), we nonetheless have jurisdiction to review constitutional claims or legal questions that a criminal alien raises in his petition for review. See 8 U.S.C. § 1252(a)(2)(D). This jurisdiction “includes review of the BIA’s application of law to undisputed fact.” Singh v. Gonzales, 432 F.3d 533, 541 (3d Cir.2006). In this case, Johnson argues that the BIA both applied the wrong standard of review and misapplied governing law. Because these claims fall within the scope of our jurisdiction, we will deny the Government’s motion to dismiss and turn to the merits of Johnson’s petition.
III. Discussion
Johnson first challenges the BIA’s February 2007 decision sustaining the Government’s appeal of the IJ’s original grant of CAT relief. He argues that, in rejecting the IJ’s factual finding that Johnson would be unable to obtain medication for his bipolar disorder were he to return to Jamaica, the BIA applied the wrong standard of review. We need not decide this claim, for the BIA’s most recent (and controlling) *372decision denying Johnson’s CAT claim did not turn on this factual finding.1
Johnson’s remaining claim relates to the BIA’s denial of CAT relief in its September 2008 decision. Pursuant to 8 C.F.R. § 208.16(c)(2), an alien seeking CAT relief must show that “it is more likely than not that he or she would be tortured if removed to the proposed country of removal.” Johnson argues that the BIA misapplied this standard to the facts of his case. We disagree. Contrary to what Johnson alleges, there is no indication that the BIA failed to consider the record as a whole in rendering its decision. The BIA’s decision examined all of the evidence and explained why that evidence failed to meet the standard for CAT relief.
As part of his argument, Johnson takes issue with the BIA’s treatment of a letter submitted from Dr. Aggrey Irons, a psychiatrist in Jamaica. Dr. Irons’ letter stated that if Johnson did not have “close, interested family members resident in Jamaica,” his condition would likely relapse, which in turn would almost certainly lead to his interaction with the police and subsequent criminal detention. Dr. Irons further stated that, once detained, Johnson would face “an alarmingly high possibility of extrajudicial execution.” In concluding that Johnson had failed to show that he would more likely than not be tortured, the BIA noted, inter aha, that Dr. Irons’ letter “does not quantify what he means by an ‘alarmingly high possibility of extrajudicial execution.’ ” (BIA Decision of Sept. 26, 2008, at 4.)
The BIA’s observation is both accurate and relevant. Because Dr. Irons did not expand on his statement, one cannot determine whether his reference to “an alarmingly high possibility” is tantamount to “more likely than not” or some lesser likelihood. Indeed, one could certainly argue that if one out of every 100 inmates — a mere one percent — were subject to extrajudicial execution, that would constitute an “alarmingly high” rate. Accordingly, we find no error in the BIA’s treatment of this evidence.
In light of the above, we will deny Johnson’s petition for review, as well as his request for oral argument.
. In the same vein, we also need not decide Johnson's related claim that the BIA’s application of the wrong standard of review in its February 2007 decision resulted in an incorrect ruling on the merits.
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JUDGMENT
PER CURIAM.
This appeal was considered upon the briefs and the appendices filed by the parties. See Fed. R.App. P. 34(a)(2); D.C.Cir. Rule 34(j). It is
ORDERED AND ADJUDGED that the sentence imposed by the district court be affirmed.
The district court properly calculated the Guidelines range and considered the sentencing factors in 18 U.S.C. § 3553(a), and it did not abuse its discretion in imposing a final sentence of 108 months — within the statutory maximum sentence of 120 months — consecutive to the 15-year sentence imposed by the D.C. Superior Court. The court’s reliance upon the fact of the appellant’s prior convictions did not violate the appellant’s rights under the Fifth and Sixth Amendments to the Constitution of the United States. See United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). The court did not consider any conduct for which the appellant had been acquitted, nor would such consideration have violated the appellant’s constitutional rights. See United States v. Settles, 530 F.3d 920 (D.C.Cir.2008).
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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SUMMARY ORDER
Duan Ying Huang (“Huang”) argues that the Board of Immigration Appeals (“BIA”) abused its discretion in denying her third motion to reopen removal proceedings. We assume the parties’ familiarity with the underlying facts, the procedural history, and the issues presented for review.
*215Because this motion to reopen was filed more than ninety days after the BIA’s affirmance of the Immigration Judge’s (“IJ”) order of deportation, we can grant relief only if the motion is “based on changed circumstances arising in the country of nationality or in the country to which deportation has been ordered, if such evidence is material and was not available and could not have been discovered or presented at the previous hearing.” 8 C.F.R. § 1003.2(c)(3)(ii).
Changed country conditions must be distinguished from changed personal circumstances. See Guan v. Bd. of Immigration Appeals, 345 F.3d 47, 49 (2d Cir.2003) (per curiam). A self-induced change in personal circumstances, such as having children in the United States, does not amount to changed country conditions, Wang v. Bd. of Immigration Appeals, 437 F.3d 270, 274 (2d Cir.2006), and is insufficient to allow reopening removal proceedings. See id.
Huang’s third motion to reopen contended that she “made out a showing of changed country circumstances in China.” In support of her claim that “[t]he instant motion to reopen should not be barred by the time and number limitation on [a] motion to reopen based on a showing of changed country circumstances,” Huang alleged:
some Chinese visitors to the United States from the respondent’s home village have witnessed the respondent’s participation in Falun Gong gatherings and demonstrations in the New York City and learned that she is presently again pregnant. And based on their report, officials in the respondent’s hometown eventually had information as to the respondent’s involvement in Falun Gong activities in the United States, including her open appearance on a Falun Gong TV interview challenging the Chinese authorities!’] policy, and her third pregnancy as well, which thereby triggered the authorities’ intention to persecute and punish the respondent. The threat of persecution that the respondent currently faces is beyond her control and also objectively corroborated by the supporting documents. Hence, these new actions taken by the authorities in China toward the respondent should constitute a changed [sic] in country conditions in China bearing on the respondent’s eligibility for asylum so that the instant motion may thereby be exempted from the procedural restrictions governing thereof.
The BIA found that the supporting evidence (1) was duplicative of that which she presented in earlier proceedings, (2) did not establish a material change in China, and (3) was unreliable. In so holding, the BIA did not abuse its discretion.
Huang affirmatively alleges that she “witnessed the Chinese authorities!’] crackdown in Falun Gong in China since July 1999, [and] she has always felt that the Chinese authorities’ suppression and persecution of the Falun Gong movement was unjustified, and that she was also very supportive of the Falun Gong movement.” Huang therefore recognizes that the Chinese were persecuting Falun Gong adherents at least as far back as 1999 — three years before the BIA’s dismissal of her appeal. She thus concedes that the persecution of the Falun Gong cannot properly be considered a changed country condition.
She argues, nevertheless, that “regardless of whether the Chinese government’s treatment of Falun Gong members ha[s] changed, the fact remains that Huang has presented changed circumstances in China relating to the authorities!’] intention to persecute her.” (emphasis added). But *216Huang’s claims — if believed — might establish that as to her the Chinese government became more threatening. She presented no persuasive evidence, however, of any new developments between 2002 (when the BIA affirmed the IJ’s decision) and 2009 concerning Chinese repression and persecution for unauthorized childbirth and/or Falun Gong participation.
For example, in her third motion to reopen, Huang offered the State Department’s China Profile as support for her claim of changed country conditions. The BIA found that the Profile did “not show a material change in country conditions” but instead reflected “conditions substantially similar to those that existed at the time of’ Huang’s hearing. In her brief to this Court, Huang does not challenge the BIA’s finding on its merits, but instead argues that the BIA erred by demonstrating “complete and uncritical acceptance” of the information in the Profile (evidence which she herself presented). It is also telling that Huang does not argue in this Court that the Profile does, in fact, demonstrate changed country conditions.
Finding no merit in Huang’s remaining arguments, we hereby DENY her petition for relief.
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SUMMARY ORDER
Plaintiff Flame S.A. appeals from a March 19, 2009 order of the District Court. While this appeal was sub judice, we decided Shipping Corp. of India Ltd. v. Jaldhi Overseas Pte Ltd., 585 F.3d 58 (2d Cir.2009), in which we overruled Winter Storm Shipping, Ltd. v. TPI, 310 F.3d 263 (2d Cir.2002), and held that electronic fund transfers being processed by intermediary banks are no longer subject to attachment under Rule B. In another recent decision, Hawknet, Ltd. v. Overseas Shipping Agencies, 590 F.3d 87 (2d Cir.2009), we held that our decision in Shipping Corp. of India applies retroactively. Accordingly, we VACATE the District Court’s order and REMAND the matter to the District Court with instructions to enter an order to show cause why it should not dismiss the complaint for lack of personal jurisdiction in light of these recent decisions.
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SUMMARY ORDER
Plaintiffs appeal from an order of the United States District Court for the Southern District of New York (Leisure, /.), dismissing them claims on the ground of forum non conveniens. We assume the parties’ familiarity with the underlying facts, the procedural history, and the issues presented for review.
The opinion accompanying the district court’s order considered both Egypt and Israel as potential alternative fora, and concluded that dismissal was warranted in favor of each forum. Plaintiffs limit their appeal to the district court’s dismissal in favor of Egypt; they do not appeal the order of dismissal insofar as it was predicated upon dismissal in favor of Israel. The portion of the district court’s opinion that Plaintiffs decline to contest, however, is independently adequate to support the order of dismissal. Accordingly, we affirm the district court’s order dismissing Plaintiffs’ claims on the ground of forum non conveniens, and we decline to consider Plaintiffs’ assignments of error because they bear only on the Egyptian forum, and therefore cannot affect our disposition of this appeal.
Nothing in the record suggests the Russian plaintiffs are in any way prevented from asserting their claims in Israel, or in Egypt if they so choose.
Accordingly, we hereby AFFIRM the judgment of the district court.
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OPINION
PER CURIAM.
Thomas Marmolejos, a federal prisoner proceeding pro se and in forma pauperis, appeals from the District Court’s order dismissing his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. Because his appeal presents no substantial question, we will summarily affirm the District Court’s order. See 3d Cir. L.A.R. 27.4; I.O.P. 10.6.
In February 2002, a jury sitting in the United States District Court for the Southern District of New York found Marmolejos guilty of several crimes, including conspiracy to commit robbery and extortion, conspiracy to commit murder-for-hire, and substantive murder-for-hire. The District Judge sentenced him to life imprisonment to be followed by a consecutive ten-year term and three years’ supervised release. Upon review, the United States Court of Appeals for the Second Circuit affirmed the conviction and sentence, and the United States Supreme Court denied Marmolejos’s petition for a writ of certiorari.
In December 2005, Marmolejos sought collateral relief by filing a 28 U.S.C. § 2255 motion, claiming three grounds of ineffective assistance of counsel. As is relevant here, he asserted that his attorney was ineffective for not challenging the sufficiency of the evidence on the murder-for-hire charge. The District Court found the claims to be meritless and denied the motion. The Court of Appeals denied Marmolejos’s request for a certificate of *290appealability, and the Supreme Court denied his petition for a writ of certiorari.
Marmolejos next attempted to obtain relief via a Federal Rule of Civil Procedure 60(b) motion filed with the District Court and a petition for a writ of habeas corpus filed with the United States Supreme Court. Both the motion and the petition were unsuccessful, as was the 28 U.S.C. § 2241 petition that he filed in the United States District Court for the Eastern District of Kentucky.
After Marmolejos was moved to the United States Penitentiary in Canaan, Pennsylvania, he filed a 28 U.S.C. § 2241 petition in the United States District Court for the Middle District of Pennsylvania. Marmolejos asserted that because the government failed to prove the elements of the murder-for-hire charge, he is actually innocent of that charge and of conspiracy to commit murder-for-hire. He also claimed that his due process rights were violated because there was insufficient evidence to convict him of murder-for-hire. The District Court determined that because Marmolejos could have raised the claims in his § 2255 motion, relief under § 2241 was unwarranted. The District Court dismissed the petition for lack of subject matter jurisdiction and this appeal followed.
We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253(a). We exercise plenary review over the District Court’s legal conclusions and apply a clearly erroneous standard to its factual findings. Okereke v. United States, 307 F.3d 117, 119 (3d Cir.2002).
The District Court did not err in dismissing Marmolejos’s petition. A federal prisoner can seek relief under § 2241 only if the remedy provided by § 2255 is inadequate or ineffective to test the legality of his detention. Cradle v. U.S. ex rel. Miner, 290 F.3d 536, 538 (3d Cir.2002); Okereke, 307 F.3d at 120. A § 2255 motion is “inadequate or ineffective” only when some limitation of scope or procedure would prevent the prisoner from receiving adequate adjudication of his claims. Cradle, 290 F.3d at 538. This exception is extremely narrow and has been held to apply only in rare circumstances. See, e.g., In re Dorsainvil, 119 F.3d 245, 251-52 (3d Cir.1997) (applying exception where an intervening change in the law decriminalized the conduct underlying the petitioner’s conviction).
Marmolejos argues that § 2255 is inadequate because, except in certain circumstance, it bars the filing of multiple motions. See 28 U.S.C. § 2255. Although it is likely that Marmolejos would encounter substantive and procedural hurdles in filing a second § 2255 motion, we have repeatedly held that a prisoner’s inability to meet § 2255’s stringent gatekeeping requirements does not render it inadequate or ineffective. Cradle, 290 F.3d at 538-39 (“It is the inefficacy of the remedy, not the personal inability to use it, that is determinative.”).
Marmolejos also appears to claim that § 2241 provides the only means by which to advance his actual innocence claim. This argument is unavailing. Marmolejos’s claim falls within the purview of § 2255, and he identifies neither an intervening change in the law nor any extraordinary circumstances to establish that he could not have presented it in his first § 2255 motion. In fact, citing the same evidence that he cites now, Marmolejos raised the same sufficiency of the evidence issue that underlies his innocence claim (albeit as an ineffective assistance of counsel claim) in his previous § 2255 motion. The District Court thus properly determined that Marmolejos could not advance his claims in a § 2241 petition.
Further, to the extent that the petition could be viewed as a request to file a *291second or successive § 2255 motion, the District Court correctly stated that Marmolejos may only file such an application in the United States Court of Appeals for the Second Circuit. See In re Dorsainvil, 119 F.3d at 249.
For the foregoing reasons, we summarily affirm the District Court’s July 29, 2009 order.
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OPINION
PER CURIAM.
Appellant Donald Stewart seeks review of a final order by the United States District Court for the Middle District of Pennsylvania granting summary judgment in favor of the defendants. Because we conclude that the appeal does not present a substantial question, we will summarily affirm the District Court’s judgment. See 3d Cir. L.A.R. 27.4; I.O.P. 10.6.
I. Background
Stewart, a state prisoner, was confined at the State Correctional Institution at Camp Hill (“SCI-Camp Hill”) from December 15, 2004, to June 27, 2005. In December 2006, he brought this pro se civil rights action pursuant to 42 U.S.C. § 1983.
In his amended complaint, Stewart alleges that unsanitary and overcrowded conditions at SCI-Camp Hill caused an epidemic of Methicillin Resistant Staphylococcus aureus (“MRSA”) infections.1 Stewart claims that prison officials were aware of the outbreak and did not take proper precautions to minimize prisoners’ exposure to it. Stewart alleges that, as a result of these conditions, he personally became infected with MRSA; once Stewart became infected, prison officials deliberately denied him proper medical treatment and, as a result, his health deteriorated.
*293Specifically, Stewart alleges that he first acquired a MRSA skin infection in late December 2004, in the form of a boil or abscess on his skin. When initially examined by an unnamed Physician’s Assistant, Stewart was not provided treatment. By early January 2005, Stewart’s boil burst, resulting in pain. Stewart sought emergency assistance and was seen by prison medical staff who treated the infection. Defendant Lasky informed Stewart that the infection was MRSA and prescribed an antibiotic called “Bactrim” for thirty days. In April or May 2005, Stewart contracted a second MRSA skin infection; he was again treated with Bactrim for thirty days.
Stewart further claims that, once he became infected with MRSA, prison officials acted improperly by failing to quarantine him from the general prison population. In addition, he alleges that he attempted to file a grievance concerning these events, but prison officials failed to process the grievance and thereby interfered with his access to legal remedies.2 Stewart names as defendants: SCI-Camp Hill, Jeffrey Beard (Secretary of Corrections), Donald Kelchner (SCI-Camp Hill’s Superintendent), Doctor Lasky3 (SCI-Camp Hill’s medical administrator and head doctor), Mr. Notarfrrancisco4 (SCI-Camp Hill unit manager), an unnamed John Doe SCI-Camp Hill Deputy Superintendent, and an unnamed Jane Doe SCI-Camp Hill Physician’s Assistant.
Stewart claims violations of his rights as set forth in the First, Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments, as well as under Pennsylvania state law.5 Stewart claims to have suffered both physical and emotional injuries, and seeks compensatory and punitive damages of $1.2 million, costs and fees, and injunctive relief.6
During the course of the proceedings, Stewart moved at least seven times for the appointment of counsel. The District Court denied each request. The District Court referred the matter to a Magistrate Judge for pretrial proceedings in accordance with the Magistrate Judges Act. 28 U.S.C. § 636(b)(1). In May 2007, the Magistrate Judge screened the amended complaint pursuant to the Prison Litigation Reform Act (“PLRA”) and entered a report and recommendation (“R&R”) recommending that all but two of Stewart’s claims should be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim on which relief may be granted. The Magistrate Judge recommended that two Eighth Amendment claims should proceed: the claim against Lasky for the denial of proper medical care and the claim against Kelchner concerning the conditions *294of Stewart’s confinement. On June 1, 2007, the District Court adopted the Magistrate Judge’s R&R and dismissed all but two of Stewart’s claims.7 The District Court remanded the two remaining Eighth Amendment claims to the Magistrate Judge for further proceedings.
After discovery, Kelehner and Lasky separately moved for summary judgment pursuant to Federal Rule of Civil Procedure 56(b). On June 19, 2009, the Magistrate Judge entered two R&Rs, recommending that each summary judgment motion be granted. The Magistrate Judge concluded that Stewart failed to exhaust his administrative remedies with respect to his claim against Kelehner. The Magistrate Judge concluded that Stewart did not establish an Eighth Amendment claim against Lasky. Stewart did not object to the Magistrate Judge’s R&Rs. See Fed. R.Civ.P. 72(b)(2). On July 24, 2009, the District Court adopted the Magistrate Judge’s R&Rs, granted Kelchner’s and Lasky’s motions for summary judgment, and directed the Clerk to close the case.
Stewart filed a pro se notice of appeal. He has moved for appointment of counsel.
II. Analysis
We exercise jurisdiction over this appeal pursuant to 28 U.S.C. § 1291.8 Our standard of review over the District Court’s grant of summary judgment is plenary. See McGreevy v. Stroup, 413 F.3d 359, 363 (3d Cir.2005).
Summary judgment is proper “if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). An issue is genuine if there is a sufficient evidentiary basis on which a reasonable jury could find for the non-moving party, and a factual dispute is material only if it might affect the outcome of the suit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). If Stewart failed to “make a showing sufficient to establish the existence of an element essential” to his case, and for which he bears the burden of proof at trial, we must affirm the entry of summary judgment. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). We view the record in the light most favorable to Stewart and draw all reasonable inferences in his favor.9 See Nicini v. Morra, 212 F.3d 798, 806 (3d Cir.2000).
We may affirm the District Court on any basis that finds support in the record. Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir.1999). We may summarily affirm if this appeal presents no substantial question. See 3d Cir. L.A.R. 27.4; I.O.P. 10.6.
*295A.
A § 1983 plaintiff must demonstrate that a person acting under the color of state law violated a right protected by the Constitution or laws of the United States. See Kneipp v. Tedder, 95 F.3d 1199, 1204 (3d Cir.1996). The first step is to “identify the exact contours of the underlying right said to have been violated” and to determine “whether the plaintiff has alleged a deprivation of a constitutional right at all.” County of Sacramento v. Lewis, 523 U.S. 833, 841 n. 5, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998).
A failure to provide a prisoner with adequate medical treatment is a violation of the Eighth Amendment’s proscription of cruel and unusual punishment only when it results from “deliberate indifference to a prisoner’s serious illness or injury.” Estelle v. Gamble, 429 U.S. 97, 105, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). Here, Stewart essentially claims that SCI-Camp Hill’s medical personnel, including Dr. Lasky,10 deliberately delayed treating his MRSA infections and that the prescribed treatment, a thirty-day course of Bactrim, was not appropriate to treat his condition. Assuming, as the District Court did, that Stewart exhausted his available administrative remedies prior to bringing this claim,11 the District Court properly concluded that summary judgment was appropriate because Stewart did not establish a genuine issue for trial.
While we have no doubt that Stewart’s MRSA infections were serious medical conditions, we find nothing in the record to support Stewart’s contention that Lasky, or any of the SCI-Camp Hill medical personnel, intentionally delayed the provision of medical care, see Estelle, 429 U.S. at 104, 97 S.Ct. 285, or acted with reckless disregard to a substantial risk of serious harm to him. See Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). To the contrary, Stewart’s medical records reflect that Stewart received reasonably prompt treatment for both MRSA infections.12 Nothing in Stewart’s submissions leads us to a contrary conclusion. In addition, Stew*296art’s claim concerning the Bactrim prescription amounts, at most, to a disagreement over whether he received the best or most appropriate medical treatment for the MRSA infections. Mere disagreements between the prisoner and the treating physician over medical treatment do not rise to the level of deliberate indifference. See Spruill v. Gillis, 372 F.3d 218, 235 (3d Cir.2004).
B.
In his claim against defendant Kelchner, Stewart alleged that his Eighth Amendment rights were violated because SCI-Camp Hill’s “Unit F Block” was unsanitary and overcrowded, and that these conditions led to a general MRSA epidemic and, ultimately, to Stewart’s two MRSA infections. Stewart also alleged that Kelchner had knowledge of the presence of MRSA in the facility and failed to appropriately quarantine and isolate infected prisoners in order to prevent the spread of disease. The District Court granted summary judgment in Kelchner’s favor based on a failure to exhaust administrative remedies prior to bringing suit. We agree with the District Court’s conclusion.
The PLRA requires that “[n]o action shall be brought with respect to prison conditions under Section 1983 ... or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). Exhaustion is mandatory. Woodford v. Ngo, 548 U.S. 81, 85, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006).
In his deposition, Stewart stated that he attempted to file a grievance after he was treated for his first MRSA infection, but the grievance was not processed. The record contains a copy of this unprocessed grievance, which Stewart dated March 2005. See Docket No. 121, Attachment 3 at 4. According to Stewart’s deposition testimony, this unprocessed grievance was the only one he attempted to file while at SCI-Camp Hill, as he felt that further attempts would be futile. See Docket No. 130 at 28 (Stewart Deposition at 58-60).
Even if we accept Stewart’s claim that further administrative remedies were not “available” because his attempt to file a grievance was not properly processed, see supra, n. 11, in the March 2005 grievance, Stewart complained only of the allegedly inadequate medical treatment he received for his MRSA infection. Stewart did not make any reference to the allegedly unsanitary and overcrowded conditions that he claims gave rise to the alleged MRSA epidemic, or to any other action that he attributes to Kelchner in this § 1983 action. Because the unprocessed grievance did not raise Stewart’s claim against Kelchner, it cannot provide a basis for concluding that he exhausted his available remedies as to this claim.
Instead, the record reflects that Stewart first raised his complaints concerning the allegedly unsanitary conditions at SCI-Camp Hill via a grievance filed in December 2006, more than a year and a half after his transfer out of that institution. That grievance was denied as untimely.13 An untimely “or otherwise *297procedurally defective administrative grievance or appeal” does not satisfy the mandatory exhaustion requirement. Woodford, 548 U.S. at 83, 126 S.Ct. 2378; Spruill, 372 F.3d at 231. Stewart responds by arguing that his failure to file a timely grievance should be excused because any attempt would have been futile in light of the facility’s alleged failure to process his first grievance. However, we do not recognize a futility exception to the PLRA’s mandatory exhaustion requirement. Nyhuis v. Reno, 204 F.3d 65, 71 (3d Cir.2000).
Stewart never raised his claim concerning the allegedly unsanitary and overcrowded conditions at SCI-Camp Hill by attempting to timely file a grievance raising the issue. The District Court therefore appropriately granted summary judgment in Kelchner’s favor on this unexhausted claim.
III. Conclusion
We have closely reviewed the record and conclude that there is no substantial question to be presented on appeal. We will therefore summarily affirm the District Court’s judgment. See 3d Cir. L.A.R. 27.4; I.O.P. 10.6. Stewart’s motions for the appointment of counsel and motion for an extension of time are denied as moot.
. MRSA is "a drug-resistant strain of staph bacteria. MRSA is only susceptible to a limited number of antibiotics, but most MRSA skin infections can be treated without antibiotics by draining the sores. MRSA can be spread through direct contact with infected individuals or through contact with materials that have been exposed to the bacteria. Conditions frequently associated with corrections facilities-including overcrowding, shared facilities, and close contact between inmates-can increase the risk of spreading. Unsanitary conditions can exacerbate the problem.” Kaucher v. County of Bucks, 455 F.3d 418, 421 (3d Cir.2006).
. Stewart alleges that, after following up on the unprocessed grievance, he filed a grievance subsequent to his transfer out of SCI-Camp Hill, in December 2006. He states that he exhausted his administrative remedies for the December 2006 grievance.
. In the amended complaint, Lasky’s name was misspelled "Lansyki.”
. In the amended complaint, Notarfrancisco’s name was misspelled “Fransico.”
. Stewart’s amended complaint also alleged that his sentence and conviction are wrongful, unconstitutional and illegal. To the extent that Stewart attempted to directly attack the fact of his underlying conviction, the District Court properly concluded that the claim should have been brought in a petition for a writ of habeas corpus. See Nelson v. Campbell, 541 U.S. 637, 643, 124 S.Ct. 2117, 158 L.Ed.2d 924 (2004); Preiser v. Rodriguez, 411 U.S. 475, 489, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973).
.To the extent Stewart seeks injunctive relief based upon conditions at SCI-Camp Hill, the claim has been rendered moot by his transfer out of that institution. See Sutton v. Rasheed, 323 F.3d 236, 248-49 (3d Cir.2003); Abdul-Akbar v. Watson, 4 F.3d 195, 206 (3d Cir.1993).
. Stewart filed an interlocutory appeal to this Court. We dismissed that appeal for lack of appellate jurisdiction. See Stewart v. Kelchner, C.A. No. 07-3821. In this appeal, we have reviewed the § 1915(e) dismissal of these claims and find no error in the District Court's decision.
. Stewart's notice of appeal was prematurely filed; it appears on the docket immediately before the District Court's July 24, 2009, order dismissing the remaining claims and closing the case. However, because the District Court entered its final order prior to our consideration of the case and because there has been no allegation of prejudice to any party, we conclude that the notice of appeal is effective as of the date of the District Court's final order. See Cape May Greene, Inc. v. Warren, 698 F.2d 179, 185 (3d Cir.1983); see also Lazy Oil Co. v. Witco Corp., 166 F.3d 581, 585-86 (3d Cir.1999). We therefore exercise appellate jurisdiction over this matter.
.In light of the fact that Stewart was acting pro se, we hesitate to adopt the District Court's approach of accepting the defendants' statement of material facts as uncontested solely because Stewart failed to submit a paragraph-by-paragraph response.
. Lasky provided Stewart treatment for the first MRSA infection, but retired from SCI-Camp Hill in March 2005 and was not involved in treating Stewart's second MRSA infection. The District Court dismissed Stewart's medical treatment claims against other, unnamed medical personnel under § 1915(e)(2)(B). Accepting Stewart's allegations as true, see Tourscher, 184 F.3d at 240, we see no basis for a claim that any (unidentified) medical personnel acted with deliberate indifference in violation of Stewart's Eighth Amendment rights. We therefore find no error in the District Court's decision to dismiss those claims.
. Stewart claims to have attempted to submit a grievance that was not processed and therefore not exhausted. See Docket No. 130 at 28 (Stewart Deposition at 58-60); see also Docket No. 121, Attachment 3 at 4 (March 2005 grievance form). While prisoners must exhaust all "available” remedies, 42 U.S.C. § 1997e(a); Camp v. Brennan, 219 F.3d 279, 281 (3d Cir.2000), an administrative remedy may be found to be unavailable where a prisoner is prevented by prison authorities from pursuing the prison grievance process. See e.g., Camp, 219 F.3d at 280-81; Brown v. Croak, 312 F.3d 109, 112 (3d Cir.2002). Thus, there is at least arguably a disputed issue as to whether the grievance process was "available" to Stewart while at SCI-Camp Hill. See e.g., Camp v. Brennan, 219 F.3d 279, 280-81 (3d Cir.2000); Brown v. Croak, 312 F.3d 109, 112 (3d Cir.2002).
.Stewart specifically complains of a delay of a few days between his initial examination by a nurse and his subsequent diagnosis and treatment by Lasky. Even if this apparently brief delay in initial treatment could qualify as negligence, an issue we need not address, Stewart put forth nothing to establish that it rose to the level of deliberate indifference. See Estelle, 429 U.S. at 106, 97 S.Ct. 285.
. As the District Court observed, SCI-Camp Hill's grievance procedures required Stewart to file a grievance concerning prison conditions within fifteen days of the alleged incident. See DC-ADM 804. Even assuming the objectionable conditions existed during his entire time at SCI-Camp Hill, Stewart would have had to file his grievance at the latest within fifteen days of his transfer out of SCI-Camp Hill.
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OPINION
PER CURIAM.
In these consolidated appeals, John R. Oliver appeals pro se from the District Court’s orders dismissing his complaints in two related actions in the United States District Court for the Middle District of Pennsylvania. (M.D. Pa. Civ. Nos. 08-ev-0796; 08-cv-1404.) Oliver also challenges the District Court’s orders denying him leave to amend his complaint and his request for counsel in M.D. Pa. Civ. No. 08-cv-0796, as well as the District Court’s orders denying his request for counsel and “Motion to Stop filing Fees” in M.D. Pa. Civ. No. 08-cv-1404. For the following reasons, we will summarily affirm the District Court’s orders. See 3d Cir. LAR 27.4 (2008); 3d Cir. I.O.P. 10.6.
*299I.
Oliver is currently incarcerated at the State Correctional Institution at Rockview (“SCI-Rockview”) in Bellefonte, Pennsylvania. On April 29, 2008, Oliver commenced a civil rights action pursuant to 42 U.S.C. § 1983 against the following employees of the Pennsylvania Department of Corrections (the “DOC”): Secretary Jeffrey A. Beard; Superintendent Franklin J. Tennis; former Deputy Secretary of Centralized Services Marirosa Lamas; and Dr. Symons, a prison doctor. Oliver also named as defendants several members of the culinary staff at SCI-Rockview: Mr. Capparelle, Mr. Sowash, Mr. Jedrejedzedek and Mr. Winkleman. (M.D. Pa. Civ. No. 08-cv-0796.) In addition, Oliver named three John Doe defendants and one Jane Doe defendant.
In the complaint, Oliver alleged that the defendants violated his Eighth Amendment rights by failing to properly treat an injury to his wrist. Specifically, Oliver alleged that, on January 18, 2008, while he was working in the tray room of the culinary department, he tripped over a cart of trays and fell to the floor. Oliver claimed that he suffered a hairline fracture to his wrist as a result of the fall, and that the treatment he received for his injury was inadequate. Oliver further claimed that defendant Lamas failed to address certain concerns that he had raised about the safety of the tray room before his accident.
The matter was referred to a Magistrate Judge who recommended that the court dismiss Oliver’s claims against all defendants except Dr. Symons for failure to state a claim upon which relief could be granted. See 28 U.S.C. § 1916(e)(2)(B)®. Oliver filed objections to the Magistrate Judge’s Report and Recommendation as well as a motion to amend his complaint. By order entered June 16, 2008, the District Court adopted the report and recommendation, dismissed Oliver’s claims against all defendants but Dr. Symons, and denied Oliver’s motion to amend his complaint.1 As a result, the case proceeded against Dr. Symons only.
The following month, on July 28, 2008, Oliver filed a second complaint in the District Court. (M.D. Pa. Civ. No. 08-1404.) In this complaint, Oliver raised the same claims against the same defendants, with one exception — he did not name Dr. Symons in the second action. Otherwise, however, the complaints in Civ. No. 08-cv-0796 and Civ. No. 08-cv-1404 were nearly identical. By order entered September 10, 2008, the District Court dismissed Oliver’s second complaint for the reasons stated in its order dismissing the same claims against the same defendants in Civ. No. 08-cv-0796. See 28 U.S.C. § 1916(e)(2)(B)®.
Meanwhile, Oliver’s first action proceeded against Dr. Symons. During this time, Oliver filed at least four motions for appointment of counsel. The Magistrate Judge denied each request. Oliver appealed the Magistrate Judge’s decision on his fourth motion to the District Court, but the court agreed with the Magistrate Judge that counsel was not warranted. See Tabron v. Grace, 6 F.3d 147, 155-58 (3d Cir.1993).
In November 2008, Dr. Symons moved to dismiss the complaint on the ground that it failed to state an Eighth Amendment claim against him. See Fed.R.Civ.P. 12(b)(6). Soon thereafter, Oliver again sought leave to amend his complaint. The Magistrate Judge recommended that the District Court deny Oliver’s motion for leave to amend his complaint and grant *300Dr. Symons’s motion to dismiss. The District Court agreed, and, by order entered March 25, 2009, adopted the Magistrate Judge’s Report and Recommendation, denied Oliver’s motion to amend the complaint, and granted Dr. Symons’s motion to dismiss.2
Oliver now appeals from the District Court’s orders in actions 08-CV-0796 and 08-cv-1404.3
II.
A. M.D. Pa. Civ. No. 08-cv-0796
First, we conclude that the District Court properly dismissed the claims against defendants Beard, Tennis, Jedrejedzedek, Winkleman, and Sowash, as well as the claims against the John Doe and Jane Doe defendants, in Oliver’s first complaint. As the District Court and Magistrate Judge explained, Oliver did not allege that any of these defendants were personally involved in the alleged misconduct, as he must in order to hold them liable under § 1983. See Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir.1988) (stating that liability under § 1983 may not be based on the doctrine of respondeat superior). We further conclude that the District Court properly dismissed the claim against defendant Capparelle because his alleged misconduct does not rise to the level of an Eighth Amendment violation. According to Oliver, defendant Capparelle removed him from his work assignment after his fall, took him into his office, and called the medical department to take him in for an evaluation. As the District Court explained, these allegations do not support an Eighth Amendment claim because they do not indicate that defendant Capparelle acted with “deliberate indifference” toward a “substantial risk of serious harm to an inmate.” See Farmer v. Brennan, 511 U.S. 825, 832, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). Similarly, Oliver’s allegations against defendant Lamas — that she had failed to address the safety concerns that Oliver had brought to her attention — do not state an Eighth Amendment claim. See id.
Next, we conclude that the District Court did not err in denying Oliver leave to amend his complaint. With respect to Oliver’s first request, the District Court correctly concluded that amendment would have been futile because the proposed amended complaint suffered from the same defects as his initial complaint. See Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir.2002) (noting that dismissal of case without leave to amend is proper when amendment would be futile). Concerning Oliver’s second request, dismissal was proper because Oliver failed to attach a proposed amended complaint to his motion. See Ranke v. Sanofi-Synthelabo, Inc., 436 F.3d 197, 206 (3d Cir.2006) (holding that failure to submit a draft amended complaint is fatal to a request for leave to amend).
We also conclude that the District Court acted within its discretion in denying Oliver’s motion seeking appointment of counsel because, even assuming that Oliver’s claim against Dr. Symons had arguable merit, none of the remaining Tabron factors weighed in favor of appointing counsel. 6 F.3d at 155. For example, the issues in the case were not particularly complex, and Oliver had demonstrated that he was an able litigator. See id.
*301Finally, we conclude that the District Court properly granted Dr. Symons’s motion to dismiss. As the court noted, Oliver’s allegations reveal that he received ongoing medical care for his injury, including an x-ray of his wrist, a sling to support his arm, and medications to manage his pain. Although Oliver alleged that this treatment was inadequate, disagreement over the proper course of treatment does not amount to a constitutional violation. See Spruill v. Gillis, 372 F.3d 218, 235 (3d Cir.2004).
B. M.D. Pa. Civ. No. 08-cv-1404
As noted above, the District Court dismissed Oliver’s second complaint on the ground that it merely repeated claims that the court had previously dismissed in Civ. No. 08-cv-0796. We have reviewed the complaint filed in 08-cv-1404, and agree with the District Court that it contains the same claims against the same defendants at issue in Civ. No. 08-cv-0796. As discussed above, the District Court’s dismissal of those claims was proper. Therefore, the District Court’s order dismissing Oliver’s second complaint was likewise proper.4
Accordingly, we will summarily affirm the District Court’s orders.5
. Oliver appealed from the District Court's order dismissing his claims against these defendants, but we dismissed his appeal on the ground that the District Court's order was not appealable at that time. (C.A. No. 08-3404.)
. Oliver later filed a motion for reconsideration, which the District Court dismissed as untimely. See Fed.R.Civ.P. 59(e). Oliver has not appealed from the District Court's order.
. We have jurisdiction under 28 U.S.C. § 1291, and exercise plenary review over the District Court’s legal determinations. See Lubrizol Corp. v. Exxon Corp., 929 F.2d 960, 962 (3d Cir.1991).
. In this order, the District Court also dismissed as moot Oliver's outstanding motions for appointment of counsel and to "stop filing fees.” Given our determination that the District Court’s decision to dismiss the complaint was proper, its decision to deny these motions as moot was also proper.
. After the District Court entered its order dismissing Oliver’s complaint, Oliver filed a renewed motion for appointment of counsel and a motion for a temporary restraining order. By order entered October 11, 2009, the District Court referred these motions to this Court. These motions are denied.
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OPINION
PER CURIAM.
Rashford Galloway appeals from an order of the United States District Court for the District of New Jersey, which denied his petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. Because the appeal raises no substantial question, we will affirm the District Court’s order.
Galloway is confined at the Federal Correctional Institution at Fort Dix. He is currently serving a 150-month sentence imposed by the United States District Court for the Western District of North Carolina. Galloway filed this petition pursuant to 28 U.S.C. § 2241 in the United States District Court for the District of New Jersey, the district of his confinement. In his petition Royal asserts that he was not given credit for the time that he was confined at the Northeast Ohio Correctional Center (“NOCC”).1 The District Court dismissed his petition after concluding that Galloway sought relief available under 28 U.S.C. § 2255, and that his petition thus should have been filed in the sentencing court. The District Court held in the alternative that his petition, if construed as a 28 U.S.C. § 2241 petition, should be dismissed because Galloway did not exhaust his administrative remedies.
Galloway’s claim that he should receive credit for time served in NOCC is proper under 28 U.S.C. § 2241 because he is challenging the execution of his sentence. See Queen v. Miner, 530 F.3d 253, 255 n. 2 (3d Cir.2008); Vega v. United States, 493 F.3d 310, 313-14 (3d Cir.2007). However, because Galloway did not exhaust his administrative remedies, as he concedes in his notice of appeal, his petition properly was dismissed for failure to exhaust. See Callwood v. Enos, 230 F.3d 627, 634 (3d Cir.2000) (“we have consistently applied an exhaustion requirement to claims brought under § 2241”).
For the foregoing reasons, we will summarily affirm the order of the District Court.
. The District Court noted that it is unclear whether Galloway spent time at NOCC, but presumed that Galloway had been incarcerated at that facility during his current sentence.
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OPINION OF THE COURT
VAN ANTWERPEN, Circuit Judge.
Appellant Kemyah R. Washington’s counsel has filed a motion to withdraw as counsel pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396,18 L.Ed.2d 493 (1967). Washington has filed informal and supplemental pro se briefs in opposition to his counsel’s motion, and the United States has filed a brief in support of counsel’s motion. Because Washington’s counsel has complied with his duties under Anders and because this Court is satisfied there are no non-frivolous issues for direct appeal, we will grant counsel’s motion to withdraw and dismiss the appeal.
I.
Because we write solely for the parties, we will address only those facts necessary to our opinion.
On April 7, 2008, Washington was charged in a one-count information with violating 21 U.S.C. § 841(a) for the intentional and knowing possession of, with intent to distribute, cocaine base. On the same date, Washington entered into a plea agreement with the United States under which he waived his right to a grand jury indictment and agreed to plead guilty to the information. The plea agreement advised Washington that the maximum imprisonment for violating § 841(a) is twenty years.
On April 24, 2008, Washington appeared before the District Court to change his plea to guilty. At this hearing, Judge Rambo conducted a thorough colloquy, explaining to Washington his trial rights and that he would be waiving those rights. After Washington admitted to committing the acts as the government charged, Judge Rambo concluded that Washington’s plea was voluntary and had a basis in fact for all elements of the charge. Consequently, *312the District Court accepted Washington’s guilty plea.
On August 6, 2008, Washington appeared before the District Court for sentencing. After addressing Washington’s objections to the Presentence Investigation Report, the District Court heard argument from the parties and testimony from Washington’s character witnesses. The court imposed a sentence of 175-months’ imprisonment, three years of supervised release, a $500 fíne, a $500 order of community restitution, and a $100 special assessment. Judge Rambo declined the parties’ request for a downward departure for Washington’s cooperation and declined Washington’s request for a downward variance based on his “character as of th[e sentencing] date.”
II.
The District Court had subject matter jurisdiction under 18 U.S.C. § 8281. This Court has appellate jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). We exercise plenary review over an Anders motion. See Penson v. Ohio, 488 U.S. 75, 82-83 & n. 6, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988).
Under Anders, our inquiry is two-fold: (1) whether counsel adequately fulfilled the requirements of Third Circuit Local Appellate Rule 109.2(a),1 and (2) whether an independent review of the record presents any non-frivolous issues. United States v. Coleman, 575 F.3d 316, 319 (3d Cir.2009). Thus, Washington’s counsel must satisfy us that he has thoroughly scoured the record in search of appealable issues and then must explain why those issues are frivolous. Id. Where the Anders brief initially appears adequate on its face, the proper course is for the appellate court to be guided in reviewing the record by the Anders brief itself. See United States v. Youla, 241 F.3d 296, 301 (3d Cir.2001) (dicta). If it is adequate, we confine our review to those portions of the record identified in the Anders brief, as well as issues raised in a defendant’s pro se brief. Id.
III.
Following an unconditional guilty plea, a defendant is limited to only three appeal-able issues: (1) the district court’s jurisdiction, (2) the validity of his or her plea, and (3) the reasonableness and legality of his or her sentence. See Menna v. New York, 423 U.S. 61, 62 n. 2, 63, 96 S.Ct. 241, 46 L.Ed.2d 195 (1975) (per curiam) (concluding that valid guilty plea waives preceding constitutional errors, unless related to court’s power to “hal[e] a defendant into court on a charge”); 18 U.S.C. § 3742(a) (granting appellate court’s authority to review sentences); see also United States v. Broce, 488 U.S. 563, 569, 109 S.Ct. 757, 102 L.Ed.2d 927 (1989) (holding that following unconditional guilty plea, defendant may only collaterally attack validity of plea and *313court’s power to enter conviction or impose sentence).
Washington’s counsel correctly identified these three issues in his Anders brief. In concluding that Washington had no non-frivolous arguments for these issues, counsel recognized applicable precedent, made arguments, and cited to the record to support the arguments that these issues were not meritorious. Accordingly, this Court is satisfied that counsel’s Anders brief is adequate on its face and, therefore, we constrain our review of the record to those portions identified in the Anders brief and Washington’s fro se briefs.
We agree that none of these three issues raises a non-frivolous argument. Both counsel and the United States argue that the District Court had jurisdiction under 18 U.S.C. § 3281. We agree.
Counsel and the United States also argue that Washington’s plea was valid. After a review of the District’s Court’s thorough colloquy with Washington at the change of plea hearing, we concur.
Furthermore, we find that the sentence imposed by the District Court was legal and reasonable and, therefore, this issue presents no meritorious argument. This Court engages in a procedural and substantive review of sentences. See United States v. Lessner, 498 F.3d 185, 203 (3d Cir.2007). Procedurally, the District Court must (1) correctly calculate the applicable Sentencing Guidelines range; (2) formally rule on the motions of both parties and state on the record whether the court is granting a departure and how that departure effects the guidelines range; and (3) consider all of the factors under 18 U.S.C. § 3553(a)2 and adequately explain the chosen sentence in a manner that allows for meaningful appellate court review of the reasonableness of the sentence. See Gall v. United States, 552 U.S. 38, 49-50, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007); United States v. Gunter, 462 F.3d 237, 247 (3d Cir.2006).
Substantively, we must be satisfied that the District Court exercised its discretion by considering the relevant § 3553(a) factors and we must also ascertain whether those factors were reasonably applied to the circumstances of the case.3 See United States v. Cooper, 437 F.3d 324, 329-30 (3d Cir.2006). It is clear to us from the record that the District Court followed the procedural guidelines and gave more than meaningful consideration to the relevant § 3553(a) factors. Moreover, the court did not abuse its discretion by imposing a sentence of 175-months’ imprisonment, which is within the applicable range. Thus, we conclude that the sentence was legal and reasonable.
Having concluded that the three issues correctly raised in counsel’s adequate Anders brief are frivolous, we turn to those Washington raises in his pro se briefs. *314See Youla, 241 F.3d at 301. Washington argues error because (1) of the ineffective assistance of his trial counsel for failure to file a motion to suppress; (2) he was not advised he could be considered a “career offender” for sentencing purposes until after he entered his plea; (3) he is “not guilty”; and (4) the district court lacked jurisdiction to impose a sentence in light of the government’s failure to file a notice pursuant to 21 U.S.C. § 851. None of these claims has arguable merit.
“It has long been the practice of this [Cjourt to defer the issue of ineffectiveness of trial counsel to a collateral attack.” United States v. Thornton, 327 F.3d 268, 271 (3d Cir.2003). This principle applies unless the record is sufficient to allow for determination of the issue. Id. The record in this case is clearly not sufficient to determine whether Washington’s counsel was ineffective for failure to file a motion to suppress. Therefore, this claim is frivolous.
Washington’s claim that he was not advised of his status as a career offender does not raise a non-frivolous issue for appeal. Washington was advised in the plea agreement and at the change of plea hearing that his offense carried a twenty-year maximum sentence. Moreover, his sentence was legal and reasonable. And regardless of Washington’s understanding prior to sentencing, the District Court advised Washington, and he acknowledged his understanding, that the court was not bound by any guideline estimates. Further, to the extent this issue states a claim for ineffectiveness, it is frivolous on direct appeal. See Thornton, 327 F.3d at 271.
Washington’s claim that he is “not guilty” because he was not in possession of drugs and was not a resident of the house where the drugs were located is belied by his sworn testimony at the change of plea hearing. He acknowledged ownership of the drugs, that he intended to sell them, and that he did sell them to an undercover agent and a confidential informant. Moreover, Washington offered no additional evidence to indicate he is not guilty. Therefore, this claim has no merit.
Finally, Washington’s claim that his sentence is illegal because of the government’s failure to file a § 851 notice is frivolous. The notice is required only if the government seeks a sentence beyond the statutory maximum, and is not required if the government requests the court to sentence the defendant as a career offender under U.S. Sentencing Guidelines Manual § 4B1.1. United States v. Day, 969 F.2d 39, 48 (3d Cir.1992). Because Washington was sentenced within the statutory maximum of twenty years and the government sought enhancement only because of Washington’s career offender status, the § 851 notice was not required and this ai'gument is frivolous.
IV.
We conclude that Washington’s counsel has satisfied his obligations under Anders and we grant his motion to withdraw. Because Washington’s appeal presents no meritorious arguments, we dismiss his appeal.
. Third Circuit Local Appellate Rule 109.2(a) provides, in relevant part:
“Where, upon review of the district court record, counsel is persuaded that the appeal presents no issue of even arguable merit, counsel may file a motion to withdraw and supporting brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).... If the panel agrees that the appeal is without merit, it will grant counsel's Anders motion, and dispose of the appeal without appointing new counsel. If the panel finds arguable merit to the appeal, or that the Anders brief is inadequate to assist the court in its review, it will appoint substitute counsel, order supplemental briefing and restore the case to the calendar. The panel will also determine whether to continue the appointment of current counsel or to direct the clerk to discharge current counsel and appoint new counsel.’’
3d Cir. L.A.R. 109.2(a) (2008).
. These factors include: (1) the nature and circumstances of the offense and the defendant's history; (2) the need to reflect the seriousness of the crime and to adequately deter criminal conduct; (3) the available sentences; (4) the established sentencing range; (5) any pertinent sentencing policies; (6) the need to avoid sentencing disparities; and (7) the need to provide restitution to victims. 18 U.S.C. § 3553(a)(1)—(7).
. Washington bears the burden of demonstrating unreasonableness. United States v. Cooper, 437 F.3d 324, 332 (3d Cir.2006). We review the District Court's sentence for an abuse of discretion. See Gall v. United States, 552 U.S. 38, 41, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). This Court asks whether the final sentence was premised on appropriate judicious consideration of the relevant factors. United States v. Schweitzer, 454 F.3d 197, 204 (3d Cir.2006). There is no presumption of reasonableness even if the sentence is within the Guidelines range. Cooper, 437 F.3d at 329-30, 331-32.
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OPINION OF THE COURT
VAN ANTWERPEN, Circuit Judge.
Plaintiff-Appellant Connection Training Services (“CTS”) filed this appeal of an order of the United States District Court for the Eastern District of Pennsylvania granting summary judgment to defendants, the City of Philadelphia, Perritti DiVirgilio (“DiVirgilio”), and James Ferraro (“Ferraro”) (collectively, the “Defendants”). CTS appeals the District Court’s *316conclusion that CTS failed to show a genuine issue of material fact that it suffered a detriment in relying on Defendants’ misrepresentations as to the availability of a prevailing wage exemption pursuant to a city ordinance. The District Court relied on an estoppel argument in its grant for summary judgment. We will affirm the entry of summary judgment, but through alternative reasoning.
I.
Because we write solely for the parties, we include only those facts necessary to our disposition of this appeal.
On September 28,1999, the City of Philadelphia enacted ordinance number 990221-A (the “Ordinance”), which purported to expand the scope of workers exempt from the prevailing wage requirements for city contract work. The Ordinance would not become effective until the Minority Business Enterprise Council (“MBEC”) provided certain certifications to the Mayor’s Office and the City Council. MBEC never provided those certifications and, therefore, the Ordinance never took effect.
Nevertheless, CTS developed a training program and sought certification as a bona fide training program under the Ordinance.1 After receiving approval and discretionary funding from the Philadelphia Workforce Development Corporation (“PWDC”), CTS sought to place its trainees with LP Group2, Inc. (“LP2”). LP2 attempted to use these trainees on a contract with the city, but received citations from Philadelphia’s Labor Standards Unit (“LSU”) for prevailing wage violations. DiVirgilio and Ferraro are the director and deputy director, respectively, of the LSU, which is responsible for ensuring that, inter alia, workers on city contracts receive the prevailing wages.
Prior to the Ordinance, the only exemption from the prevailing wage requirements was for recognized apprenticeship programs. The Ordinance would have extended those exemptions to bona fide training programs that complied with the requirements of the Ordinance. The LSU refused to recognize an exemption for CTS’s training program on the basis that the only available exemption was for apprenticeship programs. During the course of this litigation, Defendants asserted that CTS’s claimed exemption was unenforceable because the Ordinance never took effect. Nevertheless, the LSU enforced other requirements under the Ordinance which similarly did not take effect without the MBEC’s certification.
CTS argues that Defendants’ refusal to recognize its training programs precludes it from placing its trainees with construction firms working on city projects, thereby violating its due process and equal protection rights, as well as violating Pennsylvania’s Public Official and Employee Ethics Act (“POEEA”), 65 Pa. Cons.Stat. Ann. § 1101-1113. Because these firms would have to pay the prevailing wage unless CTS’s training program is exempt, the firms will not hire and pay unskilled workers at the same rate as skilled workers. CTS’s argument continues that if it cannot place its trainees, then it cannot receive additional funding from the city or city-related agencies, such as PWDC. Although CTS provided evidence of PWDC’s criteria for refunding *317a training program, there is no indication CTS was guaranteed refunding if it met those criteria. Further, CTS argues that it incurred long-term expenses in creating and initiating its training programs, which it cannot recover if Defendants are permitted to refuse to exempt its training program.
On December 31, 2008, 2008 WL 5423479, the District Court granted Defendants’ motion for summary judgment as to CTS’s due process and equal protection claims under 42 U.S.C. § 1983. The court determined that because the Ordinance never went into effect, CTS could only succeed on its claims if it could estop the Defendants from denying that the Ordinance took effect.2 The court concluded that “the record does not show that CTS sought wage exemptions in reliance on [Defendants’ negligent misrepresentations ... or that such reliance would have been justified.” J.A. at 1891. Thus, CTS could not estop Defendants from claiming the Ordinance was not in effect and, therefore, failed to identify a protected property right.
CTS subsequently filed a timely motion for reconsideration, which the District Court denied in a February 25, 2009 order. Although the court assumed that CTS could show it justifiably relied on Defendants’ misrepresentations, it concluded that “CTS has not produced evidence that its reliance caused it detriment.” Id. at 1898-99. The court then denied a second motion for reconsideration as improper and declined to exercise supplemental jurisdiction over CTS’s POEEA claim.
II.
The District Court had jurisdiction for CTS’s § 1983 claims under 28 U.S.C. § 1331. The District Court declined to exercise supplemental jurisdiction for CTS’s state-law claim under § 1367. This Court has jurisdiction to review the grant of summary judgment under § 1291. Dee v. Borough of Dunmore, 549 F.3d 225, 227 (3d Cir.2008). Plaintiff filed a timely notice of appeal.3
The appeal from the denial of a motion for reconsideration brings up the underlying judgment for review; therefore, the standard of review depends on the nature of the underlying judgment. McAlister v. Sentry Ins. Co., 958 F.2d 550, 552-53 (3d Cir.1992). Because the underlying judgment granted Defendants’ motion for summary judgment, this Court exercises ple*318nary review, applying the same standards the District Court was required to apply. Bowers v. NCAA 475 F.3d 524, 535 (3d Cir.2007).
Summary judgment is appropriate if the moving party has established that there is no genuine issue of material fact and it is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (citing Fed.R.CivP. 56(c)). The moving party bears the initial burden of showing that the non-movant has failed to establish one or more essential elements of its case. Id. at 322-23, 106 S.Ct. 2548. The reviewing court must take all facts in the light most favorable to and must draw all reasonable inferences in favor of the non-movant. Bowers, 475 F.3d at 535.
If the moving party meets its burden, the burden then shifts to the non-movant to establish that summary judgment is inappropriate. Matsushita, Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). To avoid summary judgment, the non-movant must go beyond the pleadings and come forward with specific facts indicating a genuine issue for trial. Celotex, 477 U.S. at 324, 106 S.Ct. 2548. A genuine issue of material fact exists when the evidence is such that a reasonable jury could return a verdict for the non-movant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Summary judgment is appropriate if the nonmovant fails to make a showing sufficient to establish the existence of an element essential to its case. Celotex, 477 U.S. at 322-23,106 S.Ct. 2548.
III.
On appeal, CTS argues that the District Court erred in concluding that it failed to adduce evidence of its detrimental reliance which was sufficient to survive Defendants’ motion for summary judgment. Although CTS indicated in its notice of appeal that it was appealing each of the District Court’s orders, CTS argues against only the District Court’s denial of CTS’s first motion for reconsideration. More specifically, CTS argues the District Court erred in granting summary judgment against CTS’s due process claims. Therefore, CTS has waived any other arguments it may have had on this appeal. See Laborers’ Int’l Union of N. Am. v. Foster Wheeler Corp., 26 F.3d 375, 398 (3d Cir.1994) (considering party’s failure to raise issue in its opening brief as waiver of that argument on appeal); Nagle v. Alspach, 8 F.3d 141, 143 (3d Cir.1993) (requiring party to identify issue in statement of issues or in argument section of brief to avoid waiver). Accordingly, we will not address the District Court’s entry of summary judgment on CTS’s equal protection claim or the court’s decision not to exercise supplemental jurisdiction over CTS’s state-law claim. Rather, we will focus on the District Court’s entry of summary judgment as to CTS’s due process claims.4
*319The Fourteenth Amendment prohibits state action which “deprive[s] any person of life, liberty, or property, without due process of law.” U.S. Const, amend. XIV, § 1. Congress enacted § 1983 as a federal cause of action against the deprivation of any rights, privileges, or immunities secured by the Constitution or laws of the United States. Town of Castle Rock v. Gonzales, 545 U.S. 748, 755, 125 S.Ct. 2796, 162 L.Ed.2d 658 (2005). To state a § 1983 claim, a plaintiff must demonstrate that the defendant, acting under color of state law, deprived plaintiff of a right secured by the Constitution or laws of the United States. Chainey v. Street, 523 F.3d 200, 219 (3d Cir.2008). We will assume, because the parties do not dispute, that for the purposes of this appeal the Defendants are state actors subject to § 1983.
The Due Process Clause includes protections for both procedural and substantive due process. See, e.g., Gonzales, 545 U.S. at 755-56, 125 S.Ct. 2796 (acknowledging substantive and procedural components of Due Process Clause). Because it is unclear whether CTS is asserting a procedural or substantive due process claim, we will address each in turn. The first step in evaluating a § 1983 claim, however, is to identify the exact contours of the underlying right CTS claims was violated and to determine whether CTS has alleged a deprivation of a constitutional right at all. Chainey, 523 F.3d at 219.
A.
To establish a substantive due process claim under § 1983, the plaintiff must prove (1) the particular interest at issue is protected by the Fourteenth Amendment, and (2) the government’s deprivation of that protected interest shocks the conscience. Id.; see Gottlieb v. Laurel Highlands Sch. Dist., 272 F.3d 168, 172 (3d Cir.2001) (stating that substantive due process is violated when state conduct is arbitrary, or conscience shocking, in a constitutional sense) (quoting County of Sacramento v. Lewis, 523 U.S. 833, 847, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998)). The plaintiff must have been deprived of a fundamental property interest under the Constitution. Chainey, 523 F.3d at 219. If the right is fundamental, we must then consider whether the conduct was arbitrary or irrational; however, if the right is not fundamental, there is no substantive due process issue and the state conduct will be upheld so long as the state complies with procedural due process. See Nicholas v. Pa. State Univ., 227 F.3d 133, 142 (3d Cir.2000).
This Court has recognized two strands of substantive due process correlating to the nature of the government action, i.e. whether it was legislative or non-legislative. Id. at 139. Non-legislative, or executive, actions “typically apply to one person or to a limited number of persons, while legislative acts, generally laws and broad executive regulations, apply to large segments of society.” Id. at 139 n. 1. In this case, CTS argues that Defendants’ refusal to qualify its training program for the wage exemption violated its due process rights; therefore, CTS argues it was deprived by non-legislative action.
To prevail on a non-legislative substantive due process claim, CTS must establish a protected property interest to which the Fourteenth Amendment’s protection applies. Id. at 139-40. This Court has required plaintiffs in such circumstances to identify a “particular quality of property interest.” Id. at 140. Whether a certain property interest embodies this particular quality is not determined by reference to state law, but depends on whether that interest is “fundamental” under the Constitution. Id. The asserted property interest must be considered against the background of *320constitutional purposes, rationally developed and historically perceived, with respect for the teachings of history and a solid recognition of the basic values that underlie our society. Id. (quoting Regents of Univ. of Mich. v. Ewing, 474 U.S. 214, 229-30, 106 S.Ct. 507, 88 L.Ed.2d 523 (1985) (Powell, J., concurring)).
We focus on the nature of the property interest at stake and, so far, have limited non-legislative substantive due process rights to real property ownership. Id. at 141. Further, we have declined to recognize a fundamental property interest in a variety of other circumstances. See, e.g., Gikas v. Wash. Sch. Dist., 328 F.3d 731, 736-37 (3d Cir.2003) (holding there is no property interest in statutory veterans' employment preference for substantive due process purposes); Nicholas, 227 F.3d at 143 (declining to find interest in tenured employment); Indep. Enters. Inc. v. Pittsburgh Water & Sewer Auth., 103 F.3d 1165, 1178, 1179-80 (3d Cir.1997) (concluding lowest bidder has no fundamental property interest in municipal contracts even though state statute requires municipality to award contract to lowest bidder); Reich v. Beharry, 883 F.2d 239, 244-45 (3d Cir.1989) (finding no interest in prompt payment for professional services); Ransom v. Marrazzo, 848 F.2d 398, 411-12 (3d Cir.1988) (asserting that state-law entitlement to water and sewer services is not a protected property interest); Mauriello v. Univ. of Med. & Dentistry of N.J., 781 F.2d 46, 52 (3d Cir.1986) (dicta) (suggesting graduate student has no property interest in continued enrollment in program).
In this case, CTS asserts property interests in recognition of its training program under the Ordinance so that it can (1) continue to place its trainees, which CTS asserts is necessary to receive future, discretionary funding from the City of Philadelphia or city-related agencies, and (2) recover the long-term fixed costs it expended in creating its training program. Such interests are not “fundamental” under the Constitution, nor are they basic values that underlie our society. CTS’s asserted interests are analogous to the numerous interests we have declined to recognize, which rely on statutory rights or relationships with government agencies, and are not similar to the “venerable common-law rights of real property ownership.” See Nicholas, 227 F.3d at 143. Therefore, CTS has failed to identify an interest protected by substantive due process and we need not consider whether Defendants’ conduct shocks the conscience. See Chainey, 523 F.3d at 219 (requiring deprivation of fundamental property interest). Accordingly, Defendants’ conduct will be upheld so long as it complied with procedural due process. See Nicholas, 227 F.3d at 142.
B.
To establish a procedural due process claim under § 1983, the plaintiff must prove (1) a deprivation of an individual interest encompassed by the Fourteenth Amendment’s protection of life, liberty, or property, and (2) that the procedures available did not provide due process of law. Hill v. Borough of Kutztown, 455 F.3d 225, 233-34 (3d Cir.2006). Procedural due process does not protect every benefit; rather, to have a property interest in a benefit, a person must clearly have more than an abstract need or desire and more than a unilateral expectation of receiving the benefit. Gonzales, 545 U.S. at 756, 125 S.Ct. 2796. Thus, in constitutional parlance, the plaintiff must have a legitimate claim of an “entitlement.” Id. Entitlements, however, are not established by the Constitution; rather, they are created and defined by existing rules or understand*321ings that stem from an independent source, such as state law. Id.
It is undisputed that the Ordinance never took effect and, therefore, CTS is not entitled to the prevailing wage exemption under statute. Thus, CTS must be able to estop Defendants from denying the Ordinance took effect. Under Pennsylvania law, a party asserting estoppel against a government agency must show (1) a negligent misrepresentation, which (2) induced justifiable reliance and (3) caused the party to suffer a detriment. See Strunk v. Zoning Hearing Bd. of Upper Milford Twp., 684 A.2d 682, 685 (Pa. Commw.Ct.1996). A party asserting estoppel must offer clear, precise, and unequivocal evidence in support of its claim and must produce more than mere speculation. Novelty Knitting Mills, Inc. v. Siskind, 500 Pa. 432, 457 A.2d 502, 504 (1983).
Even assuming CTS can show negligent misrepresentation and justifiable reliance, it cannot show Defendants’ misrepresentations caused it detriment. CTS asserts it suffered detriment because, unless recognized under the prevailing wage exemption, it will not (1) receive future discretionary funding, or (2) recoup its long-term expenses in creating its training program. CTS’s claim for recoupment is just a variation of its claim that it will not receive future funding — CTS would recoup its expenses from that funding. Further, because the funding is discretionary, it is too speculative to meet CTS’s burden to show a detriment. See Novelty Knitting Mills, 457 A.2d at 504. Absent a cognizable detriment, CTS cannot estop Defendants from denying the Ordinance took effect.
Consequently, CTS cannot claim an entitlement under state law. Therefore, CTS is not entitled to procedural due process protection.
IV.
We conclude that CTS has not asserted a cognizable property interest under either procedural or substantive due process. Consequently, as a matter of law, CTS cannot maintain claims under § 1983 for violation of its due process rights. Therefore, we will affirm the District Court’s entry of summary judgment for Defendants.
. The certification requirement was included in a footnote. The director and program manager of CTS, Garnett Littlepage ("Little-page”), asserted that he pursued the training program after reviewing an online version of the Ordinance which contained no footnotes. Thus, the District Court concluded, for the purposes of summary judgment review, that Littlepage was unaware of the certification requirement at the time CTS initiated its training program.
. The District Court asserted that "[t]o estop a government agency, a plaintiff must establish: (1) that the agency intentionally or negligently misrepresented some material fact; (2) the agency had knowledge or reason to know that the other party would rely upon it; and (3) the agency induced the other party to act to its detriment because of justifiable reliance upon the misrepresentation.” J.A. at 1890 (citing Strunk v. Zoning Hearing Bd. of Upper Milford Twp., 684 A.2d 682, 685 (Pa. Commw.Ct. 1996)).
. The notice of appeal in a civil action must be filed within thirty days after the entry of the judgment appealed. Fed. R.App. P. 4(a)(1)(A). If, however, the party files a motion to alter or amend the judgment within the time permitted under the Federal Rules of Civil Procedure, the time for filing the notice of appeal runs from the entry of the order disposing of such motion. Id. R. 4(a)(4)(A)(iv). A motion to reconsider is considered a motion to alter or amend the judgment. Carrascosa v. McGuire, 520 F.3d 249, 253 n. 3 (3d Cir.2008) (citing United States v. McGlory, 202 F.3d 664, 668 (3d Cir.2000) (en banc)). The motion to reconsider must be filed within 10 days of the subject judgment. Fed.R.Civ.P. 59(e). CTS filed a timely motion to reconsider the District Court's December 31, 2008 order granting Defendants’ request for summary judgment. The District Court disposed of CTS’s motion on February 25, 2009, and CTS filed its notice of appeal within thirty days of that order. Therefore, CTS filed a timely appeal. See Fed. R.App. P. 4(a)(1)(A).
. It is unclear from the record and from CTS's brief whether it is asserting a procedural or substantive due process claim. Despite passing references to substantive due process in CTS's brief opposing Defendants' motion for summary judgment, the District Court indicated it considered both types of due process claims. Nonetheless, CTS's brief does not indicate either procedural or substantive due process. See Appellant's Br. at 2, 38-48. And although Defendants maintain that CTS appeals its substantive due process claim. Appellees' Br. at 16, Defendants assert a procedural due process argument in their brief, id. at 34-35 (citing O’Bannon v. Town Court Nursing Ctr., 447 U.S. 773, 100 S.Ct. 2467, 65 L.Ed.2d 506 (1980) (evaluating constitutionality of process under Fifth Amendment Due Process Clause)). Because our ultimate conclusion does not depend on whether we consider CTS's claim as procedural or substantive, we will address both.
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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/8476150/
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OPINION OF THE COURT
VAN ANTWERPEN, Circuit Judge.
Appellant-defendant Michael Hill’s Counsel has filed a motion to withdraw pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). The United States has filed a brief in support of Counsel’s motion. Although Counsel’s Anders brief is slightly insufficient, because this Court is satisfied there are no non-frivolous issues for direct appeal, we will grant Counsel’s motion to withdraw and dismiss the appeal.
I.
Because we write solely for the parties, we will address only those facts necessary to our opinion.
On December 25, 2005, Hill escaped from the Federal Correctional Complex in Loretto, Pennsylvania where he was serving a 234 month sentence for a drug conspiracy involving cocaine base. Hill was designated to a federal prison camp at Loretto, which is a minimum security camp with no perimeter fencing.
After Hill was captured in March 2008, he pled guilty to violating 18 U.S.C. § 751(a), which makes it a crime to escape from government custody. In the Presentence Report prepared by the U.S. Probation Office, Hill’s offense was calculated at a base level of 13, with a two-point downward adjustment because he accepted responsibility. U.S. Sentencing Guidelines Manual § 3El.l(a) (2008). The advisory guideline range for Hill’s conduct, in light of his criminal history category of Level III, was twelve to eighteen months. Prior to sentencing, Hill’s counsel filed a Motion for Concurrent Term of Imprisonment, which was denied. On March 23, 2009, a trial court sentenced Hill to a term of twelve-months imprisonment, to run consecutively to Hill’s undischarged term of imprisonment, and three-years supervised release to run concurrently with Hill’s other supervised release term. This sentence was at the low end of the advisory guideline range of twelve to eighteen months.
*327II.
The District Court had subject matter jurisdiction pursuant to 18 U.S.C. § 3231. This Court has appellate jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). This Court exercises plenary review over an Ayiders motion. See Penson v. Ohio, 488 U.S. 75, 82-33 n. 6, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988).
Our inquiry under Anders is twofold. First, we must consider whether counsel adequately fulfilled its obligations under Third Circuit Local Appellate Rule 109.2(a). United States v. Youla, 241 F.3d 296, 300 (3d Cir.2001). Regarding this issue, counsel must satisfy us that he or she (1) thoroughly scoured the record in search of appealable issues, (2) identified any issues arguably supporting the appeal, even though they are frivolous, and (3) explained to us why they are frivolous. United States v. Coleman, 575 F.3d 316, 319 (3d Cir.2009) (citing United States v. Marvin, 211 F.3d 778, 780 (3d Cir.2000)). Second, we must consider whether an independent review of the record presents any non-frivolous issues. Youla, 241 F.3d at 300. If the Anders brief appears adequate on its face, we review only the portions of the record identified in the Anders brief and any issues raised by an appellant in a pro se brief. Id. at 301. But, “except in those cases in which frivolousness is patent, we will reject briefs ... in which counsel argue [sic] the purportedly frivolous issues aggressively without explaining the faults in the arguments.” United States v. Marvin, 211 F.3d 778, 781 (3d Cir.2000).
III.
Counsel’s Anders brief is technically insufficient. In his brief, Counsel identifies three potential issues for appeal, all relating to Hill’s sentence: (1) that Hill is entitled to a four-point downward departure pursuant to the federal sentencing guidelines for escaping from a non-secure community correction center, community treatment center, or halfway house; (2) that the District Court abused its discretion in refusing to run Hill’s sentence concurrent to his undischarged drug sentence; and (3) that the District Court failed to consider the defendant’s mental and emotional state in sentencing. Although Counsel examines each potential issue with care, and cites controlling law, Counsel fails to explain to us the faults in these arguments, as required under Marvin, 211 F.3d at 781.
Moreover, Counsel only addressed Hill’s potential sentencing claims. When a defendant pleads guilty, as Hill did, there are three potential issues open for appeal: the District Court’s jurisdiction, the validity of the guilty plea, and the legality of the sentence. See United States v. Broce, 488 U.S. 563, 569, 109 S.Ct. 757, 102 L.Ed.2d 927 (1989). Counsel did not address jurisdiction or the adequacy of Hill’s plea. Notably, Counsel need not include every possible claim of error in an Anders brief, but the brief must exude sufficient indicia that Counsel made a reasoned decision not to raise the issues omitted. Marvin, 211 F.3d at 780. Here, although Hill did not file a pro se brief, he wrote his Counsel a letter bringing up each of the arguments addressed in Counsel’s Anders brief. App. at 43-44. Therefore, we are not confident that Counsel omitted the other appealable issues based on a reasoned belief they lack merit; rather, it appears to us that Counsel merely framed his arguments to respond to the issues the defendant specifically indicated he intended to appeal.
IV.
While Counsel’s Anders brief is inadequate, and no pro se brief was filed, we will not appoint new counsel as we do not need further assistance; the issues are straight*328forward and easily resolvable on the record before us. See Coleman, 575 F.3d at 321 (noting that in those cases when the Court concludes the appeal lacks merit, “we will not appoint new counsel even if an Anders brief is insufficient.”). We will limit our independent review to the record, in light of Hill’s guilty plea, to the District Court’s jurisdiction, the validity of the plea, and the legality of the sentence.
Hill pled guilty to one count of 18 U.S.C. § 751(a). The District Court plainly has jurisdiction over this offense under 18 U.S.C. § 3231, as Hill’s crime was an offense against the laws of the United States. Therefore, Hill can raise no non-frivolous claims with respect to jurisdiction.
The record indicates both that the District Court colloquied Hill prior to accepting his plea, in keeping with the requirements of Federal Rule of Criminal Procedure 11(b), and that Hill had no intention of appealing the sufficiency of that colloquy. Therefore, Hill can raise no non-frivolous issue with respect to his plea.
Furthermore, Counsel predicts Hill will appeal his sentence. This Court reviews the overall sentence for abuse of discretion by engaging in a procedural and substantive review of the sentence. See United States v. Tomko, 562 F.3d 558, 567 (3d Cir.2009). Procedurally, the District Court must (1) accurately calculate the applicable sentencing guidelines range; (2) formally rule on the motions of both parties and state on the record whether the court is granting a departure and how that departure affects the guidelines range; and (3) consider all the factors under 18 U.S.C. § 3553(a) and adequately explain the chosen sentence in a manner that allows for meaningful appellate court review of the reasonableness of the sentence. See Gall v. United States, 552 U.S. 38, 49-50, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007); United States v. Gunter, 462 F.3d 237, 247 (3d Cir.2006). If the District Court’s procedure is without error, then we consider the substantive reasonableness of the sentence based on the totality of the circumstances. Tomko, 562 F.3d at 567. It is clear from the record that the District Court followed the procedural guidelines and gave meaningful consideration to the relevant § 3553(a) factors. Moreover, the Court did not abuse its discretion by imposing a twelve-month consecutive sentence. Thus, we conclude the sentence was legal and reasonable.
Counsel contends that Hill may appeal the sentence arguing he is entitled to a four-point downward departure. If a defendant escaped from the “non-secure custody of a community corrections center, community treatment center, halfway house, or similar facility,” he is entitled to a four-point downward departure under the Sentencing Guidelines. U.S. Sentencing Guidelines Manual § 2Pl.l(b)(3). We agree with the government and Counsel that there is no factual basis for characterizing the Federal Prison Camp adjacent to the Federal Corrections Institution at Loretto, the minimum security facility from which Hill escaped, as something similar to a community center. See United States v. Hillstrom, 837 F.Supp. 1324, 1339 (M.D.Pa.1993) (finding the Federal Prison Camp at Allenwood, a lower level Federal Prison Camp than Loretto, dissimilar to a community correction facility for the purposes of the same guidelines provision). Therefore, we find that Hill is unable to make a non-frivolous appeal based on the argument that Loretto should be characterized as similar to a community corrections facility for sentencing purposes.
Similarly, Hill cannot present a non-frivolous claim that the District Court erred by refusing to run his twelve-month sentence concurrently with the remainder of his prior sentence. A District Judge *329has discretion to impose a term of imprisonment either consecutively or concurrently on a defendant who is already subject to an undischarged term of imprisonment, upon consideration of the factors set forth in 18 U.S.C. § 3553(a). 18 U.S.C. § 3584(a), (b). It is clear to us from the record that the District Court gave meaningful consideration to the relevant § 3553(a) factors before deciding to impose Hill’s sentence consecutively. Thus, Hill is unable to make a non-frivolous claim on this issue.
Counsel predicts Hill would appeal his sentence claiming that the District Court erred by not considering whether the defendant deserved a downward departure due to defendant’s mental and emotional state. U.S. Sentencing Guidelines Manual § 5H1.3. Neither Hill nor his attorney asserted to the District Court that Hill may be entitled to a downward departure on that basis, and arguments asserted for the first time on appeal are deemed waived and unreviewable by this Court, absent exceptional circumstances which do not exist here. Gov’t of Virgin Islands v. Rosa, 399 F.3d 283, 291 (3d Cir.2005); Brown v. Philip Morris Inc., 250 F.3d 789, 799 (3d Cir.2001).
According to the Counsel’s brief, he considered, but decided against moving for a downward departure due to Hill’s mental or emotional state. He noted, and the record confirms, that Hill has no history of mental or emotional conditions, and there is no reference to any emotional or mental conditions in the presentencing report. Moreover, when invited, Hill accepted the opportunity to tell the Court what he wanted the Court to know, but he did not ask for a downward departure to reflect any mental or emotional conditions from which he suffered. App. at 26-30. Waivers are unreviewable because it is presumed they were the result of tactical choices, as this was. Rosa, 399 F.3d at 290. As the defendant never advanced the issue of a departure for mental or emotional issues to the District Court, the issue is waived and unreviewable on appeal. Id. Thus, we conclude Hill has no non-frivolous claim for appeal due to the lack of consideration of his mental and emotional state before sentencing.
V.
Although we conclude that Counsel’s Anders brief is technically insufficient, because we find that Hill’s appeal presents no meritorious arguments, we will grant Counsel’s motion to withdraw and dismiss Hill’s 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/8476151/
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OPINION OF THE COURT
FISHER, Circuit Judge.
Douglas William Ray appeals his conviction for conspiracy to distribute and possess with the intent to distribute cocaine base. He argues that the District Court abused its discretion in denying his motion to withdraw his guilty plea. We conclude that Ray executed a valid waiver of his appellate rights that bars this appeal. Accordingly, the District Court’s judgment will be affirmed.
I.
We write exclusively for the parties, who are familiar with the factual context and legal history of this case. Therefore, we will set forth only those facts necessary to our analysis.
Ray pled guilty to one count of conspiring to distribute and possess with the intent to distribute cocaine base in violation of 21 U.S.C. § 846. His plea agreement contained an appellate waiver provision that stated, in pertinent part, as follows:
Ray waives the right to take a direct appeal from his conviction or sentence under 28 U.S.C. § 1291 or 18 U.S.C. § 3742, subject to the following exceptions:
(a) If the United States appeals from the sentence, ... Ray may take a direct appeal from the sentence.
(b) If (1) the sentence exceeds the applicable statutory limits set forth in the United States Code, or (2) the sentence unreasonably exceeds the guideline range determined by the Court under the Sentencing Guidelines, ... Ray may take a direct appeal from the sentence.
(Supp.App.2.)
Prior to sentencing, Ray filed a pro se motion asking for new counsel. The District Court granted that motion and appointed new counsel. Ray thereafter filed another pro se motion in which he asked to withdraw his guilty plea. At a hearing on the motion before the District Court, Ray, with his new counsel present, stated that he had been pressured by his former counsel to accept the plea and asserted his innocence. The District Court found that Ray had entered his plea voluntarily and *331denied his request to withdraw it. The Court sentenced Ray to 120 months in prison. This timely appeal followed.1
II.
On appeal, Ray argues that the District Court abused its discretion in denying his request to withdraw his guilty plea.2 He claims that he is actually innocent of the crime to which he pled guilty and that he can prove as much at trial. Where the government invokes an appellate waiver provision in a plea agreement, we must at the outset determine whether that provision militates against our exercise of jurisdiction over the merits of a defendant’s appeal. See United States v. Goodson, 544 F.3d 529, 533-37 (3d Cir.2008); United States v. Gwinnett, 483 F.3d 200, 203 (3d Cir.2007). We will decline to review the merits of Ray’s appeal if we find “(1) that the issues he pursues on appeal fall within the scope of his appellate waiver and (2) that he knowingly and voluntarily agreed to the appellate waiver, unless (3) enforcing the waiver would work a miscarriage of justice.” United States v. Corso, 549 F.3d 921, 927 (3d Cir.2008) (citations omitted).
Turning to the first part of our inquiry, we find that the sweep of Ray’s waiver is quite broad. It allows him to appeal only if the government appeals, if his sentence exceeds the statutory maximum, or if his sentence unreasonably exceeds the guideline range. The parties do not dispute that none of these circumstances is present here. Accordingly, the issue Ray submits for our review in this appeal falls squarely within the waiver’s ambit. See, e.g., id. at 927-28; Goodson, 544 F.3d at 536-37; Gwinnett, 483 F.3d at 204.
We ask next whether Ray’s waiver was knowing and voluntary. In so doing, we must ensure “that the [District [Cjourt informed [Ray] of, and determined that [Ray] understood the terms of any plea-agreement provision waiving the right to appeal or to collaterally attack the sentence as Federal Rule of Criminal Procedure ll(b)(l)(N) requires.” United States v. Mabry, 536 F.3d 231, 239 (3d Cir.2008) (internal quotation marks, other alterations, and ellipsis omitted). The parties in this case do not dispute that the District Court did not comply with Rule ll(b)(l)(N). However, because Ray failed to object to the District Court’s Rule 11 violation, he must meet the plain-error standard. See Goodson, 544 F.3d at 539 & n. 9. To that end, he must establish “(1) that there was an error, i.e., a deviation from a legal rule, (2) that the error was ‘plain,’ i.e., clear or obvious, and (3) that the error affected his substantial rights.” Corso, 549 F.3d at 928 (citations omitted). “If all three conditions are met, an appellate court may then exercise its discretion to notice a forfeited error, but only if (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Goodson, 544 F.3d at 539 (quotation marks, alteration, and citation omitted).
Under this Court’s precedents, the District Court’s failure to confirm that Ray understood that he was relinquishing the bulk of his appellate rights clearly constitutes error that is plain. See Corso, 549 F.3d at 929 (“Corso has unquestionably met his burden under the first two prongs of the plain-error analysis.”); Goodson, 544 F.3d at 540 (finding plain error where “there was no effort to verify that Goodson understood the breadth of the waiver or to underscore the fact that the waiver meant that, subject to three very narrow exeep*332tions, Goodson was giving up the right to appeal both the validity of his plea and the legality of his sentence”). Still, Ray must meet his burden of showing that his substantial rights were affected. To do so, he must demonstrate “a reasonable probability that, but for the error, he would not have entered the plea.” United States v. Dominguez Benitez, 542 U.S. 74, 83, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004). In determining whether Ray has met his burden, we must consider the “whole record.” Goodson, 544 F.3d at 540 (quoting United States v. Vonn, 535 U.S. 55, 59, 122 S.Ct. 1043, 152 L.Ed.2d 90 (2002)).
The record reflects that Ray is a high school graduate who has no difficulty understanding and communicating in English. Furthermore, although the District Court did not explicitly advise Ray of the appellate waiver provision, the prosecution recited the terms of the waiver in full during Ray’s plea hearing. The District Court thereafter asked Ray if he understood all of the terms contained in the plea agreement. Ray responded unequivocally in the affirmative. Ray also signed the plea agreement, acknowledging that he had read it, understood it, and discussed it with his counsel. Finally, under questioning by the District Court, Ray stated that he had not been pressured in any way to plead guilty. In light of the entire record, we see no basis on which to conclude that the District Court’s failure to discuss the appellate waiver provision in the plea agreement prevented Ray from understanding that he had a right to appeal and that he was surrendering that right in large part. See, e.g., Goodson, 544 F.3d at 540-41. Accordingly, we conclude that Ray has not met his burden of showing that his substantial rights were affected by the District Court’s failure to inform him of his waiver of his appellate rights and that Ray knowingly and voluntarily waived his right to appeal.
Moreover, Ray has not demonstrated that enforcing the appellate waiver would result in a miscarriage of justice. A miscarriage of justice in the appellate waiver context requires the presence of “unusual eircumstance[s],” United States v. Khattak, 273 F.3d 557, 562 (3d Cir.2001), or “particularly egregious errors,” Corso, 549 F.3d at 931 (quotation marks and citation omitted). No such circumstances or errors are attendant here.
Ray’s motion to withdraw his guilty plea is premised on his assertion of innocence. We have explained, however, that “[b]ald assertions of innocence ... are insufficient to permit a defendant to withdraw her guilty plea.” United States v. Brown, 250 F.3d 811, 818 (3d Cir.201) (citation omitted). Instead, “[assertions of innocence must be buttressed by facts in the record that support a claimed defense. In addition to reasserting her innocence, a defendant must give sufficient reasons to explain why contradictory positions were taken before the district court and why permission should be given to withdraw the guilty plea.” Id. (internal quotation marks and citations omitted).
The record in this case leaves no room for doubt that Ray fell short of that mark. At the hearing before the District Court on his motion to withdraw his plea, Ray merely stated “yes” when asked whether he was proclaiming his innocence notwithstanding his guilty plea. He also claimed that he had been selling DVDs and CDs instead of drugs, as alleged in the indictment, and indicated that he could call witnesses at trial to substantiate that claim. Significantly, Ray has failed to explain why he took contradictory positions at two different hearings before the District Court.3 Under these circumstances, his assertion *333of innocence does not convince us that a miscarriage of justice would result from enforcing his appellate waiver. See, e.g., United States v. Wilson, 429 F.3d 455, 458 (3d Cir.2005); see also Brown, 250 F.3d at 815 (explaining that “[a] shift in defense tactics, a change of mind, or the fear of punishment are not adequate reasons” to permit the withdrawal of a guilty plea (quotation marks and citation omitted)).
III.
For the foregoing reasons, we will enforce the appellate waiver in Ray’s plea agreement and affirm the District Court’s judgment.
. After this appeal was docketed, the government moved for summary affirmance on the basis of Ray's appellate waiver. That motion was denied.
. The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction under 28U.S.C. § 1291.
. At the hearing before the District Court on his motion to withdraw his guilty plea, Ray *333stated that he had accepted the plea because his former counsel "was telling me that I was facing, and everything, I more or less felt like I was trapped into the situation if I didn’t go along with what's going on." (Supp.App.70.) In his opening brief, Ray does not explicitly press this argument, and therefore it is not properly before us. See United States v. Hoffecker, 530 F.3d 137, 162 (3d Cir.2008). Even assuming this argument is not waived, the record simply does not support Ray's allegation of coercion. During his plea colloquy, Ray answered "no” when asked whether anyone had promised him anything in exchange for his guilty plea or in any way induced him to plead guilty. When asked whether his plea was a product of anything other than his own free will and whether anyone had threatened or coerced him or taken away his right to choose to plead guilty, Ray again responded in the negative. These statements, uttered under oath in open court, "carry a strong presumption of verity.” Blackledge v. Allison, 431 U.S. 63, 74, 97 S.Ct. 1621, 52 L.Ed.2d 136 (1977). Ray's subsequent assertion, at the hearing on his motion to withdraw his plea, that his plea was a result of pressure from his former counsel, is wholly unsupported by the record. The District Court expressly found that Ray’s plea was knowing and voluntary, and we perceive no reason to disturb that finding.
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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/8476153/
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OPINION OF THE COURT
FISHER, Circuit Judge.
The School District of Philadelphia (“School District”) appeals from an April 22, 2008, order of the District Court awarding $104,349.45 in attorneys’ fees and $2,270.05 in costs to plaintiffs Dawn J. and her son, Damian J. The School District urges us to apply to the lodestar amount a greater negative multiplier than that applied by the District Court. Because we conclude that the District Court did not abuse its discretion in reducing the lodestar amount by five percent, we decline to do so. Accordingly, we will affirm the District Court’s order.
I.
We write exclusively for the parties, who are familiar with the factual context and legal history of this case. Therefore, we will set forth only those facts necessary to our analysis.
At the time this litigation began, Damian was a twelve-year-old student eligible for a “free and appropriate education” (“FAPE”) under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400, et seq. To fulfill its IDEA obligations, the School District developed an Individualized Education Program (“IEP”) for Damian. In January 2006, Damian’s mother, Dawn, requested a due process hearing, alleging that the IEP was not being properly implemented and seeking compensatory education for the 2005-2006 school year. After several hearings, a state hearing officer determined that the School District had not denied Damian a FAPE during the relevant period. A state appeals panel upheld that determination.
Thereafter, Dawn, on both Damian’s and her own behalf (together, the “Plaintiffs”), initiated this lawsuit against the School District1 in the United States District Court for the Eastern District of Pennsylvania, seeking relief under the IDEA; the Rehabilitation Act of 1973, 29 U.S.C. § 794; and 42 U.S.C. § 1983.2 They asked the District Court, among other *335things, to reverse the rulings of the hearing officer and the appeals panel; to declare that the School District had violated the IDEA, the Rehabilitation Act, and § 1983; to award Damian compensatory education for the 2005-2006 school year; to order the School District to reimburse them for attorneys’ fees incurred in connection with a 2005 settlement agreement; and to award them monetary damages. The parties filed cross-motions for judgment on the administrative record. In a Memorandum and Order entered on January 23, 2008, the District Court partially granted and partially denied both parties’ motions. The Court awarded Damian compensatory education for the first half of the 2005-2006 school year but declined to award compensatory education for the remainder of that school year. The Court did not award either party any other relief.
The Plaintiffs subsequently moved for an award of $113,267.16 in attorneys’ fees and $2,301.66 in costs.3 In a Memorandum and Order entered on April 22, 2008, the District Court awarded $104,349.45 in attorneys’ fees and $2,270.05 in costs.4 The School District has timely appealed only the fee award.5
II.
The District Court had jurisdiction under 28 U.S.C. § 1331 and 28 U.S.C. § 1343. We have jurisdiction under 28 U.S.C. § 1291. An award of attorneys’ fees is reviewed for abuse of discretion. P.N. v. Clementon Bd. of Educ., 442 F.3d 848, 852 (3d Cir.2006). “An abuse of discretion occurs when a district court’s decision rests upon a clearly erroneous finding of fact, an errant conclusion of law or an improper application of law to fact.” Id. (internal quotation marks and citation omitted). To the extent a district court’s fee award is based on a legal determination, we exercise plenary review. Id.
III.
Both the IDEA and the Rehabilitation Act authorize an award of reasonable attorneys’ fees to the prevailing party. See 20 U.S.C. § 1415(i)(3)(B)(i)(I);6 29 U.S.C. § 794a(b).7 “Our case law construing what is a reasonable fee applies uniformly to all fee shifting statutes.” Goodman v. Pa. Turnpike Comm’n, 293 F.3d 655, 677 (3d Cir.2002) (alteration, quotation marks and citation omitted). “The starting point for determining the amount of a reasonable fee is the lodestar, which courts determine by calculating the ‘number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate.’ ” McKenna v. City of Philadelphia, 582 F.3d 447, 455 (3d Cir.2009) (quoting Hensley v. Eckerhart, 461 U.S. 424, 433, 103 *336S.Ct. 1933, 76 L.Ed.2d 40 (1983)). “The product is a presumptively reasonable fee, but it may still require subsequent adjustment.” UAW Local 259 Soc. Sec. Dep’t v. Metro Auto Ctr., 501 F.3d 283, 290 (3d Cir.2007). Thus, “[ojnce a lodestar calculation has been reached, a court may then reduce that amount to account for ‘limited success’ by a plaintiff, focusing on ‘the significance of the overall relief obtained by the plaintiff in relation to the hours reasonably expended on the litigation.’” McCutcheon v. America’s Servicing Co., 560 F.3d 143, 151 (3d Cir.2009) (quoting Hensley, 461 U.S. at 435-36, 103 S.Ct. 1933).
In this case, the District Court recited the hourly rates of, and the number of hours expended by, the various attorneys and other professionals hired by the Plaintiffs. The Court rejected the School District’s argument that the hourly rates of some of those professionals should have been reduced, finding that those rates were consistent with, or less than, the prevailing rates for professionals of comparable skill and experience. The Court was likewise unconvinced by the School District’s contention that the Plaintiffs’ time entries were vague. Finally, the Court eliminated from its computation hourly work performed in connection with the preparation of a report that the Plaintiffs had not submitted to the District Court. Having explained these considerations, the District Court calculated the lodestar as $109,841.53. The Court reduced that amount by five percent, resulting in a fee award of $104,349.45. In the District Court’s view, a five percent negative multiplier was appropriate because the Plaintiffs’ success was “substantial.” (App.l2a.) The Court reasoned as follows:
Plaintiffs succeeded in proving Damian had been denied FAPE and Damian’s rights were vindicated. Plaintiffs’ claims, both successful and unsuccessful, were interrelated, nonfrivolous, and raised in good faith. The claims arose out of a common core of facts involving deficiencies in Damian’s classroom environment. The claims were also based on related theories regarding the implementation of Damian’s IEP. I find much of counsel’s time was devoted generally to the litigation as a whole and the hours spent on the various claims cannot be divided. I also find counsel carefully prepared this ease and their work was thorough and skilled. Plaintiffs’ success, however, was not complete, and I find a slight fee reduction reasonable to reflect the limited success. Given the significance of the overall relief obtained in relation to the hours reasonably expended on the litigation, I find a reduction of 5% to be reasonable.
(App. 12a-13a (internal citation omitted).)
The School District does not dispute that the Plaintiffs are the prevailing party in this case. Instead, it argues that the Plaintiffs prevailed on only one of what the School District characterizes as four claims: (1) reversal of the state administrative rulings; (2) compensatory education for the entirety of the 2005-2006 school year; (3) compensatory damages under the IDEA, the Rehabilitation Act, and § 1983; and (4) attorneys’ fees sought in connection with a 2005 settlement agreement between the parties. (Appellant’s Br. 12-13.) The School District further argues that the Plaintiffs prevailed on only the first two claims, and only partially at that, since Damian was awarded compensatory education for only one-half of the 2005-2006 school year. The School District points out that the § 1983 claim was dismissed and contend that the fee request in connection with the 2005 settlement agreement was not “proven.” (Id. at 13.) In the School District’s view, a seventy-five percent, instead of a five percent, negative multiplier should have been applied to the Plaintiffs’ fee request, result*337ing in a fee award of $27,460.38. Notably, the School District has offered us no relevant legal authority to compel the use of its proposed negative multiplier.8
It is true that when “a plaintiff has achieved only partial or limited success,” a district court may reduce a fee award below the lodestar amount. Hensley, 461 U.S. at 436, 103 S.Ct. 1933. However, “[tjhere is no precise rule or formula for making these determinations.” Id. Indeed, where, as here, a plaintiffs successful and unsuccessful claims arise out of a common core of facts — the School District’s failure to provide Damian with a FAPE — “[m]uch of counsel’s time will be devoted generally to the litigation as a whole, making it difficult to divide the hours expended on a claim-by-claim basis.” Id. at 435, 103 S.Ct. 1933. We recognize that a district court may reduce the lodestar amount “even where the plaintiffs claims were interrelated, nonfrivolous, and raised in good faith.” Id. at 436, 103 S.Ct. 1933. At the same time, when a district court “applies the correct legal standard, th[at] court has discretion in determining the actual fee[ ] award.” Abrams v. Lightolier Inc., 50 F.3d 1204, 1222 (3d Cir.1995) (citations omitted). Indeed, deference to a district court’s determination of attorneys’ fees
is appropriate in view of the district court’s superior understanding of the litigation and the desirability of avoiding frequent appellate review of what essentially are factual matters. It remains important, however, for the district court to provide a concise but clear explanation of its reasons for the fee award. When an adjustment is requested on the basis of either the exceptional or limited nature of the relief obtained by the plaintiff, the district court should make clear that it has considered the relationship between the amount of the fee awarded and the results obtained.
Hensley, 461 U.S. at 437, 103 S.Ct. 1933.
Here, in a thoroughly reasoned and careful analysis, the District Court made factual findings that we have been given no reason to upset. Furthermore, consistent with the governing legal standards, the District Court correctly calculated the lodestar figure. Finally, taking into account the interrelated nature of the Plaintiffs’ claims and the Plaintiffs’ “substantial” success in vindicating Damian’s right to a FAPE — a right that was at the crux of this lawsuit — the District Court determined that a five percent negative multiplier was warranted. Based on our review of the record, we cannot say that the District Court reached a determination that “no reasonable person would adopt[.]” Rode v. Dellarciprete, 892 F.2d 1177, 1182 (3d Cir.1990) (citation omitted); see also Washington v. Phila. County Court of Common Pleas, 89 F.3d 1031, 1039 (3d Cir.1996) (“Our task [in reviewing a fee award] is not to determine whether, sitting as a court of first instance, we would have reached the same conclusion as the district court did.”).
IV.
For the foregoing reasons, we will affirm the District Court’s April 22, 2008, order.
. Dawn also named as a defendant the Community Council for Mental Health and Mental Retardation. The District Court subsequently granted that defendant’s motion to dismiss and dismissed it from this case. That ruling is not at issue here.
. The District Court dismissed the Plaintiffs’ § 1983 claim on the School District’s motion. That ruling is likewise uncontested.
. The Plaintiffs initially asked for an award of $127,531.54 in attorneys' fees and $4,501.03 in costs, but later reduced their request.
. The District Court subsequently stayed the execution of its award of fees and costs pending appeal.
. The School District does not challenge the District Court's ruling on the parties' respective motions for judgment on the administrative record. Nor does the School District challenge the District Court's award of costs.
. The IDEA'S fee-shifting provision states, in pertinent part, as follows: "In any action or proceeding brought under this section, the court, in its discretion, may award reasonable attorneys' fees as part of the costs ... to a prevailing party who is the parent of a child with a disability [.]'' 20 U.S.C. § 1415(i)(3)(B)(i)(I).
.The Rehabilitation Act's fee-shifting provision states: "In any action or proceeding to enforce or charge a violation of a provision of this subchapter, the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs.” 29 U.S.C. § 794a(b).
. The School District cites several decisions by district courts in this circuit to support its position, but none of them furthers the School District’s cause. Instead, those decisions demonstrate only that other district courts have exercised their discretion in different ways on different facts. Significantly, none of those decisions bind this Court, just as they did not bind the District Court in this case.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8476155/
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OPINION
AMBRO, Circuit Judge.
James J. Kania appeals the District Court’s grant of summary judgment to the United States Postal Service on his claims for disability discrimination and retaliation under the Rehabilitation Act of 1973, 29 U.S.C. § 791 et seq. We affirm.1
I.
Kania is a letter carrier for the Postal Service at its Woods Run Station in Bellevue, Pennsylvania. In January 2004, he began suffering lower back pain and was diagnosed with facet syndrome, a condition that causes degeneration of cartilage between the discs of the lower back. Kania received Family Medical Leave Act (“FMLA”) certifications for more than 400 hours of missed work due to his back pain between March 2004 and June 2005. In May and June of 2005, he underwent lumbar facet nerve blocks and a lumbar facet rhizotomy, which decreased his pain levels.
In September 2005, a route examiner observed that Kania was unable to maintain “an acceptable walking pace” while on his route, and witnessed Kania take the prescription narcotic oxycodone. As a result, Lauren Alt, the Customer Service Manager for the Woods Run Station, placed Kania on limited duty pending the results of a fitness-for-duty medical examination. Kania complained to Alt and another supervisor, Ronda Lavezoli, that he was “being treated unfairly due to [his] disability,” and demanded that he be reinstated to his full-time duties as a letter carrier. He also filed grievances challenging his placement on limited duty and seeking back pay for the hours of work missed while on limited duty. During this time, Kania remodeled his own home and his son’s home, projects that included installing siding and new floors, painting, wiring, and renovating a bathroom.
In late 2005, Kania was examined by three physicians, each of whom concluded that Kania was capable of performing the essential functions of his job and should be reinstated to full-time work as a letter carrier. After receiving these reports, the Postal Service returned Kania to full-time duty in December 2005. Shortly thereafter, Kania and the Postal Service settled Kama’s grievances, and he was granted full back pay.
In February 2006, another supervisor of Kania, Norbert Graf, issued him a letter of warning for missing scan points on his delivery route on February 21, 2006. When Kania complained to Graf that he had not missed any scan points on that date, Graf allegedly told Kania that Lavezoli and Alt had forced Graf to issue the discipline because they were upset that Kania had filed grievances.
In March 2006, Kania expressed interest in a position in the maintenance department at the Postal Service’s General Mail Facility in Pittsburgh. Two months later, *340he was notified that he was being “canvassed” for a position in the maintenance department. Because Kania was the only current Postal Service employee who had expressed interest in the position, his was the only application that was initially considered.
Kania informed Lavezoli and Michael Graf, the Acting Manager of the Woods Run Station (and Norbert Grafs brother), of his intention to transfer to the maintenance department. Two days later, Lavezoli issued Kania a seven-day suspension for unauthorized overtime taken in late April 2006. Kania, however, was on authorized leave on the dates identified by Lavezoli. Kania confronted Lavezoli about the erroneous basis for the suspension, and Lavezoli rescinded the suspension. However, he reissued the suspension for different dates on which Kania allegedly took unauthorized overtime. The newly identified dates, however, did not appear on the Postal Service’s records of overtime taken by Kania.
James DeLeonibus, a Manager of Maintenance Operations at the General Mail Facility, was instructed by Thomas Graf, the Maintenance Manager for the General Mail Facility (and another brother of Norbert Graf), to review Kama’s application. Among the documents in Kama’s file were (1) records of the letter of warning and seven-day suspension Kania received in 2006, and (2) an evaluation from Lavezoli, in which she stated that Kania was “willing to work but cannot complete his duties in a timely manner.” DeLeonibus rejected Kama’s application because his work record was “unsatisfactory,” as he had “current” discipline in his record. In his deposition, DeLeonibus confirmed that he rejected Kama’s application solely because Kania had a record of “live” discipline.
Kania filed a formal Equal Employment Opportunity complaint in September 2007, alleging that he had suffered disability discrimination and retaliation when he was not selected for the maintenance position. After his claim was denied in February 2007, Kania filed suit in the District Court for the Western District of Pennsylvania, alleging disability discrimination, retaliation, and hostile work environment arising not only out of his non-selection for the maintenance position, but also his placement on limited duty in 2005 and the discipline imposed on him in February and May 2006.
In November 2007, the District Court dismissed Kania’s claims to the extent they involved actions other than his non-selection for the maintenance position, as Kania had not filed EEO complaints regarding his placement on limited duty or the discipline imposed in 2006.2 Following discovery, the Magistrate Judge recommended that summary judgment be granted in favor of the Postal Service on the disability discrimination and retaliation claims of Kania because he had failed to establish a prima, facie case for either. The District Court approved and adopted the Magistrate Judge’s report and recommendation in entering judgment in favor of the Postal Service. Kania timely appealed.
II.
Kania argues that the District Court improperly granted summary judgment to the Postal Service on his claims for disability discrimination and retaliation. We address each claim in turn.3
*341in.
To establish a prima facie case of disability discrimination under the Rehabilitation Act,4 a plaintiff must show that he (1) has a “disability,” (2) is otherwise qualified to perform the essential functions of the job, with or without reasonable accommodations, and (3) was nonetheless prevented from performing the job. Wishkin v. Potter, 476 F.3d 180, 184-85 (3d Cir.2007) (quoting Shiring v. Runyon, 90 F.3d 827, 831 (3d Cir.1996)). The Rehabilitation Act defines an “individual with a disability” as someone who (1) has a physical or mental impairment that substantially limits his/her major life activities, (2) has a record of such an impairment, or (3) is regarded as having such an impairment. 29 U.S.C. § 705(20)(B); 42 U.S.C. § 12102(1). The District Court determined that Kania failed to establish the first element of his prima facie case because he did not qualify as an “individual with a disability” under any of these definitions. We agree.5
A. Actual Disability
A “substantial ] limitation]” is a significant restriction on a major life activity “as compared to ... the average person in the *342general population.” Toyota Motor Mfg., Ky., Inc. v. Williams, 584 U.S. 184, 195-96, 122 S.Ct. 681, 151 L.Ed.2d 615 (2002) 0quoting 29 CFR § 1630.2(j) (2001)). A major life activity is one that is “of central importance to daily life,” id. at 197, 122 5.Ct. 681, such as “caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working,” 29 C.F.R. § 1630.2(f), as well as “sitting, standing, lifting [and] reaching.” Kralik v. Durbin, 130 F.3d 76, 78-79 (3d Cir.1997) (quoting 29 C.F.R. § 1630 app.) (alteration in original).
Kania argues that he presented sufficient evidence that he is “substantially limit[ed]” in the major life activities of walking, standing, and working. But despite his diagnosis of facet syndrome, the record reveals no doctor who has placed a physical limitation on Kania. He continues to work as a letter carrier, which requires standing and walking for several hours a day. Moreover, Kania testified in deposition that he is able to drive a car, do limited jogging and running, shop, and care for his son. Kania also testified that he is able to function even when his back pain is sharp. In light of these facts, we agree with the District Court that Kania does not meet the “demanding standard for qualifying as disabled.” Toyota Motor Mfg., 534 U.S. at 197, 122 S.Ct. 681.
In response, Kania emphasizes the FMLA certifications he received for more than 400 hours of missed work in 2004-2005, before his non-selection for the maintenance position.6 However, we evaluate whether a person is disabled “from the point at which the alleged discriminatory decision was made” — here, August 2006. Bowers v. NCAA, 475 F.3d 524, 535-36 (3d Cir.2007). In May and June of 2005, Kania underwent procedures that “dramatically” reduced his pain level: in May 2005, he reported a 70% reduction in pain, and in July 2005, he described his pain level as a two on a scale of one to ten. Moreover, Kania engaged in significant physical labor in 2005 and 2006, including remodeling two homes. This activity belies Kama’s claim that he was substantially limited in a major life activity at the time of his non-selection.
Kania also places great weight on the March 2008 report of Dr. Patrick N. Smith, an orthopedic surgeon, who stated that he “fe[lt] that [the facet syndrome] seems to interfere with [Kama’s] abilities to perform certain activities, particularly as it relates to his occupation,” and that Kama’s condition could deteriorate “over the next several years” unless he switched to an “occupation with less physical demands.” Dr. Smith’s 2008 opinion that facet syndrome “seems to interfere” with Kama’s ability to work is not enough to create a genuine issue of material fact as to whether Kania was substantially limited in the major life activity of working in August 2006. The possibility that Kama’s facet syndrome could worsen in the future is also insufficient to show that he was disabled in August 2006. See Sutton v. United Air Lines, Inc., 527 U.S. 471, 482, 119 S.Ct. 2139, 144 L.Ed.2d 450 (1999) (“[A] person [must] be presently — -not potentially or hypothetically — substantially limited in order to demonstrate a disability”).
Finally, even accepting that Kania experiences limitations on his ability to work as a letter carrier, he has not demonstrated that these limitations make him “unable to work in a broad class of jobs.” Id. at 491, 119 S.Ct. 2139 (emphasis added); see also id. at 492, 119 S.Ct. 2139 (“To be substantially limited in the major life activity of working, ... one must be precluded from *343more than one type of job, a specialized job, or a particular job choice.”). Accordingly, we conclude that the District Court correctly determined that Kania was not disabled.7
B. Regarded As Having a Disability
We also conclude that Kania failed to demonstrate that the Postal Service “regarded” him as having a disability. He argues that his supervisor’s ordering a fitness-for-duty examination, after learning of Kama’s inability to maintain an “acceptable walking pace,” creates a genuine issue of material fact whether the Postal Service regarded him as being disabled. But an employer’s direction that an employee undergo a medical examination “only establishes that the employer harbors doubts (not certainties) with respect to an employee’s ability to perform a particular job,” and those doubts “alone do not demonstrate that the employee was held in any particular regard.” Tice, 247 F.3d at 515; see also Kelly v. Drexel Univ., 94 F.3d 102, 109 (Bd Cir.1996) (that plaintiffs employer was aware of his visible walking impairment was insufficient to show the employer regarded the employee as disabled). Indeed, when three physicians cleared Kania to return to his full-time duties as a letter carrier, the Postal Service reinstated him.
Moreover, we know of no evidence suggesting that DeLeonibus (the relevant decision-maker) had any knowledge that Kania had a physical impairment. De-Leonibus testified that he was completely unaware of Kama’s medical problems when he reviewed his application and decided not to select him for the maintenance position, and did not communicate with Kama’s supervisors during his review.8
Kania nonetheless points to “circumstantial evidence” suggesting that DeLeonibus was aware of his alleged impairment. For example, Kania claims that the month-long gap between DeLeonibus’ receipt of his application and the decision not to select Kania suggests that DeLeonibus communicated with Kama’s supervisors during this period and was informed of his disability. This is speculation, and it is insufficient to defeat summary judgment. See Geraci v. Moody-Tottrup, Int’l, Inc., 82 F.3d 578, 582 (3d Cir.1996) (speculation that members of management “lied about their lack of knowledge” of plaintiffs pregnancy was insufficient to create a genuine issue of material fact); Hedberg v. Ind. Bell Tel. Co., 47 F.3d 928, 931-2 (7th Cir.1995) *344(speculation about employer’s knowledge of plaintiffs disability did not create a genuine issue of material fact; “instead, it ereate[d] a false issue, the demolition of which is a primary goal of summary judgment”).
In sum, we conclude that the District Court properly entered summary judgment in favor of the Postal Service on Kama’s disability discrimination claim.
III.
To establish a prima facie case of retaliation, a plaintiff must demonstrate that (1) he engaged in protected activity, (2) his employer took an adverse employment action against him, and (3) there was a causal connection between his protected activity and the adverse employment action. Krouse v. Am. Sterilizer Co., 126 F.3d 494, 500 (3d Cir.1997). Kania claims that his non-selection for the maintenance position was in retaliation for two protected actions: (1) his complaint to Alt that he was “being singled out because of [his] disability” when he was ordered to undergo a fitness-for-duty examination; and (2) his filing of grievances challenging his placement on limited duty. The District Court agreed that these acts qualified as protected activity, but concluded that Kania had not established a causal connection between that protected activity and his non-selection for the maintenance position.
We agree with the Court. Generally, a plaintiff may establish the requisite causal nexus by demonstrating either “(1) an unusually suggestive temporal proximity between the protected activity and the allegedly retaliatory action, or (2) a pattern of antagonism coupled with timing.” Lauren W. ex rel. Jean W. v. DeFlaminis, 480 F.3d 259, 267 (3d Cir.2007). Kania has demonstrated neither. First, his not getting the maintenance position occurred 11 months after his grievances and complaint to Alt. See Andreoli v. Gates, 482 F.3d 641, 650 (3d Cir.2007) (five-month gap was insufficient to establish a causal connection between protected activity and adverse employment action). Second, as with his disability discrimination claim, Kania has produced no evidence demonstrating that DeLeonibus was aware of Kama’s grievances or his complaint to Alt. Indeed, Kania testified that he has never met DeLeonibus, and does not believe that DeLeonibus retaliated against him when he rejected his application. Accordingly, we conclude that the District Court appropriately entered summary judgment in favor of the Postal Service on Kama’s retaliation claim.
H: * * * ❖ #
In this context, we affirm the judgment of the District Court.
. The District Court had jurisdiction under 28 U.S.C. § 1331. We have jurisdiction under 28 U.S.C. § 1291.
. Kania concedes on appeal that he failed to exhaust his administrative remedies as to these claims.
. We review a grant of summary judgment de novo, using the same standards as the District Court. Jakimas v. Hoffmann-LaRoche, Inc., 485 F.3d 770, 777 (3d Cir.2007). We view the facts in the light most favorable to the nonmoving party. Id.) Erie Telecomms. Inc. v. City of Erie, 853 F.2d 1084, 1093 (3d Cir.1988). A party is entitled to summary judg*341ment only "if the pleadings, the discovery and disclosure materials on file, and any affidavits[,] show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c)(2).
. The Rehabilitation Act provides in pertinent part: "No otherwise qualified individual with a disability in the United States ... shall, solely by reason of her or his disability, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency or by the United States Postal Service.” 29 U.S.C. § 794(a).
. On September 25, 2008 — after the USPS had moved for summary judgment, but before Kania had responded — President George W. Bush signed into law the ADA Amendments Act of 2008 (the “Act”), which took effect on January 1, 2009. Pub.L. No. 110-325, 122 Stat. 3553, 3559. The Act expands the definition of "disability” under the ADA and the Rehabilitation Act. See id. § 4(a), 122 Stat. at 3555 ("The definition of disability in this Act shall be construed in favor of broad coverage of individuals”). At our request, the parties submitted supplemental letter briefs addressing the effect of the Act, if any, on Kania’s claims. Although he submitted a supplemental letter brief, Kania did not address whether the Act applies retroactively.
We have little difficulty concluding that it does not apply retroactively. First, the Act lacks any “express command” that it is to be applied retroactively. Landgraf v. USI Film Prods., 511 U.S. 244, 280, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994). Indeed, it appears to contain an "express command” that it not apply retroactively, as Congress delayed its effective date by two months. See Lytes v. DC Water & Sewer Auth., 572 F.3d 936, 940 (D.C.Cir.2009) ("By delaying the effective date of the [Act], the Congress clearly indicated the statute would apply only from January 1, 2009 forward.”). In addition, the Act affects “substantive rights, liabilities, or duties," as it substantially broadens the definition of "disability,” and thus expands the class of employees entitled to protection under the Rehabilitation Act. See Fernandez-Vargas v. Gonzales, 548 U.S. 30, 37, 126 S.Ct. 2422, 165 L.Ed.2d 323 (2006) (in the absence of an express statutory command, courts must consider whether applying the statute "would have a retroactive consequence in the disfavored sense of ‘affecting substantial rights, liabilities, or duties [on the basis of] conduct arising before [the statute’s] enactment' ”) (quoting Landgraf, 511 U.S. at 278, 114 S.Ct. 1483) (first alteration in original). Accordingly, we join those Courts of Appeals that have addressed the issue and concluded that the Act does not apply retroactively. See Becerril v. Pima County Assessor's Office, 587 F.3d 1162, 1164 (9th Cir.2009); Fredricksen v. United Parcel Serv., 581 F.3d 516, 521 n. 1 (7th Cir.2009); Lytes, 572 F.3d at 939-42; Milholland v. Sumner County Bd. of Educ., 569 F.3d 562, 565-67 (6th Cir.2009); EEOC v. Agro Distribution, LLC, 555 F.3d 462, 469 n. 8 (5th Cir.2009).
. As stated in 29 C.F.R. § 825.702(b), a “serious health condition" under the FMLA is a “different concept!]” than the term "disability," and "must be analyzed separately."
. Because we believe that Kama’s impairment does not quality as a "disability” under the Rehabilitation Act, we also agree with the District Court that he has not proven the existence of a "record” of disability. See Tice v. Centre Area Transp. Auth., 247 F.3d 506, 513 (3d Cir.2001) ("A plaintiff attempting to prove the existence of a ‘record’ of disability still must demonstrate that the recorded impairment is a ‘disability’....”).
. In Olson v. General Electric Astrospace, 101 F.3d 947 (3d Cir.1996), we held that although the decision-maker was unaware of the plaintiff’s alleged disability, the plaintiff could still demonstrate that he was “regarded as” having a disability because: (1) the supervisor who had knowledge of the plaintiff’s impairment was "directly involved in the hiring process,” and (2) the hiring decision was based largely on that supervisor’s recommendation, in which the supervisor "made multiple references to the fact that [the plaintiff] had missed a significant amount of work because of illness.” Id. at 954.
There is no similar basis on which to impute the alleged knowledge of Kama's supervisors to DeLeonibus. Those supervisors were not involved in the hiring process, and DeLeonibus never spoke with them when he reviewed Kania's file. Although the file included an evaluation from Lavezoli in which she stated that Kania was "willing to work, but cannot complete his duties in a timely manner,” no reference was made to Kania’s impairment.
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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/8476162/
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OPINION
PER CURIAM.
Maria Jimenez petitions for review of the Board of Immigration Appeals’ (“BIA”) final order of removal. For the following reasons, we will dismiss her petition.
I.
Jimenez, a native and citizen of Ecuador, arrived in the United States without inspection in 1993. She married a United *356States citizen in 1997 and was granted conditional permanent resident status, but the couple divorced in 2001. In 2005, the Department of Homeland Security (1) terminated her conditional permanent resident status after finding that the couple entered into the marriage solely for immigration purposes, and (2) commenced removal proceedings against her on that basis. Before the Immigration Judge (“IJ”), Jimenez challenged the termination of her status and sought cancellation of removal under 8 U.S.C. § 1229b(b) on the grounds that her removal would result in extreme hardship for her two United States citizen children (then five and thirteen years of age). The IJ denied relief on both grounds, and the BIA dismissed Jimenez’s resultant appeal. She petitions for review, and the Government has filed a motion to dismiss her petition for lack of jurisdiction.
II.
The only issue that Jimenez raises on review is whether the IJ and BIA erred in determining that she had not demonstrated that her children would suffer sufficient hardship to warrant cancellation of her removal. Jimenez concedes that 8 U.S.C. § 1252(a)(2)(B) ordinarily would deprive us of jurisdiction to review that ruling because it is a discretionary decision. See Cospito v. Att’y Gen., 539 F.3d 166, 170 (8d Cir.2008); Mendez-Moranchel v. Ashcroft, 388 F.3d 176, 179 (3d Cir.2003). She argues, however, that she has raised questions of law that we retain jurisdiction to review. See 8 U.S.C. § 1252(a)(2)(D). The Government counters that we lack jurisdiction because Jimenez’s purported questions of law are not colorable and she instead essentially take issue with the IJ’s and BIA’s exercise of discretion. See Cospito, 539 F.3d at 170-71; Jarbough v. Att’y Gen., 483 F.3d 184, 189-90 (3d Cir.2007). We agree with the Government and will dismiss the petition for review on that basis.1
To obtain cancellation of removal, a non permanent resident like Jimenez must demonstrate, inter alia, that her “removal would result in exceptional and extremely unusual hardship to the alien’s spouse, parent, or child” who is either a United States citizen or a lawful permanent resident. 8 U.S.C. § 1229b(b)(l)(D). The BIA interpreted this standard in In re Monreal-Aguinaga, 23 I. & N. Dec. 56 (BIA 2001). In that case, the BIA held that the requisite hardship “must be ‘substantially’ beyond the ordinary hardship that would be expected when a close family member leaves this country.” Id. at 62. The BIA further explained that, although the hardship need not be “unconscionable,” the effect of its standard was to limit cancellation of removal to “ ‘truly exceptional’ situations[.]” Id. at 60-61 (citation omitted). The BIA set forth a number of factors to consider in making that determination, including “the ages, health, and circumstances” of the qualifying relatives. Id. at 63. By way of example, the BIA noted that “a qualifying child with very serious health issues, or compelling special needs at school” might present a strong application. Id.
In this case, the IJ expressly cited and applied the standard set forth in In re Monreal-Aguinaga. (IJ Dec. at 9-11.) The IJ determined, after weighing the relevant factors, that although Jimenez’s children might suffer emotional, psychological and economic deprivations if she is removed to Ecuador, “there is nothing in *357this record to suggest that the hardship that these children would suffer ... is anything other than the hardship that would be present in the vast majority of cases.” (Id. 11.) Among other things, the IJ noted that “there is no evidence at all that either of the children have any physical problems that require treatment in the United States. So, that aspect is certainly not present.” (Id. at 10.) The BIA dismissed Jimenez’s appeal after explaining that the IJ applied the correct standard and considered the relevant factors. (BIA Dec. at 3.)
On review, Jimenez raises essentially three arguments that she characterizes as questions of law. None of them is color-able. First, she argues that, contrary to In re Monreal-Aguinaga, the IJ effectively required a showing of an “unconscionable” hardship by focusing on the fact that her children do not have serious medical needs requiring treatment in the United States. The health of her children, however, is a relevant consideration under In re Monreal-Aguinaga, and the IJ did not focus solely on that factor. Nor did the IJ apply an “unconscionable” hardship standard. Instead, he expressly cited and applied the proper standard under In re Monreal-Aguinaga, as did the BIA.
Second, Jimenez argues that In re Mon-real-Aguinaga, together with the BIA’s subsequent decisions in In re Andazola-Rivas, 23 I. & N. Dec. 319 (BIA 2002), and In re Recinas, 23 I. & N. Dec. 467 (BIA 2002), do not require that the hardship be “substantially beyond the ordinary hardship” (as each expressly states). She argues that those decisions require instead only a “hardship that would place the Petitioner in a small select group of persons suffering a unique form of hardship that is selective rather than too substantial or unconscionable.” (Petr.’s Br. at 8.) Whatever that standard might mean, there is no support for it in the BIA’s decisions. In re Andazola-Rivas and In re Reciñas expressly reaffirmed the standard set forth in In re Monreal-Aguinaga, and Jimenez’s argument to the contrary “does not even reach the level of being colorable.” Barco-Sandoval v. Gonzales, 516 F.3d 35, 40 (2d Cir.2008) (holding that similar argument did not raise a colorable question of law for purposes of jurisdiction).
Finally, Jimenez argues that the IJ misapplied In re Monreal-Aguinaga by failing to weigh all the relevant factors, in particular by failing to “indicate whether the United States children are capable of reading, writing and speaking fluently in Spanish.” (Petr.’s Br. at 7-8.) Leaving aside the fact that, as the Government argues, there is ample evidence of record that Jimenez’s children are at least minimally fluent in Spanish, the IJ specifically noted Jimenez’s testimony that “her children do not know as much Spanish as she would like for them to know,” (IJ Dec. at 7-8), and the BIA noted the potential relevance of language difficulties in summarizing In re Recinas, (BIA Dec. at 3). Thus, there is no colorable basis for arguing that the IJ or BIA departed from In re Monreal-Aguinaga in this regard.
In sum, Jimenez has not raised any colorable question of law, and her challenges to the IJ’s and BIA’s rulings essentially take issue with the manner in which they balanced the relevant factors. Those are discretionary decisions that we lack jurisdiction to review. See 8 U.S.C. § 1252(a)(2)(B); Cospito, 539 F.3d at 170; Mendez-Moranchel, 338 F.3d at 179. Accordingly, the Government’s motion to dismiss is granted and we will dismiss the petition for review.
. We, of course, have jurisdiction to determine our jurisdiction. See Biskupski v. Att’y Gen., 503 F.3d 274, 279 (3d Cir.2007). In making that determination, we review the decisions of both the IJ and the BIA because the BIA essentially summarized and deferred to the IJ's more detailed discussion. See Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir.2004).
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OPINION
PER CURIAM.
I.
Petitioner Shi Wen Lin seeks review of the Board of Immigration Appeals’ (“BIA”) final order of removal. In its order, the BIA affirmed the Immigration Judge’s (“IJ”) decision to deny Lin’s application for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). We will deny the petition.
II.
Lin, a native and citizen of China, entered the United States without valid entry documents in October 2004 and was taken into custody by the Department of Homeland Security (“DHS”). Following his credible fear interview, Lin filed a formal application for asylum, withholding of removal, and CAT protection, claiming that he had been persecuted in China by family planning officials because of his opposition to his wife’s forced abortion.
In his asylum application, Lin stated that in June 2004, his then-girlfriend became pregnant. Because they were both under the legal age for marriage at the time, they decided to marry in a “traditional ceremony,” but without the permission of Chinese family planning officials. Ten days later, Lin claimed that planning officials came to his home and told his wife that she had to abort the child, directing Lin to take her to a local clinic. Lin verbally rejected the directive and alleges that he was beaten as a result.
Later that night, Lin and his wife went into hiding. Six days later, Lin fled China for the United States alone. In his asylum application, Lin stated that he believes that if he is returned to China, he will be jailed indefinitely and beaten for his opposition to the country’s family planning policies.
After identifying several evidentiary gaps in the record, the IJ denied Lin’s request for asylum. Specifically, the IJ found that Lin failed to provide the court with any identification documents, either for himself or establishing his marital status, and that it was reasonable for him to have done so based on his testimony that his uncle was in possession of, at least, his birth records. In addition, the IJ found that Lin failed to provide any evidence that he sustained any medical problems or sought medical treatment following his alleged beating at the hands of Chinese family planning officials.
Furthermore, even if Lin had sustained an injury as a result of his resistance, the incident did not satisfy his burden of establishing past persecution. The IJ also rejected Lin’s argument that he will sustain future persecution on account of his resistance if he is returned to China as his testimony regarding his fear was both implausible and inconsistent with country conditions as reflected in the record evidence.
On appeal, the BIA affirmed the IJ’s decision, finding that on the merits of Lin’s case, there was insufficient evidence to show that the single alleged beating rose to the level of persecution, or that Lin would be killed or imprisoned for life if he returned to China.
III.
This Court has jurisdiction to review final orders of removal. See 8 U.S.C. § 1252(a). “[W]hen the BIA both adopts the findings of the IJ and discusses some of the bases for the IJ’s decision, we have authority to review the decisions of both *360the IJ and the BIA.” Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir.2004). The BIA’s factual determinations are upheld if they are supported by reasonable, substantial, and probative evidence on the record considered as a whole. INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992) (citing 8 U.S.C. § 1105a(a)(4)).
We recently held that there is no automatic refugee status for spouses or unmarried partners of individuals subjected to coercive population control policies. LinZheng v. Att’y Gen., 557 F.3d 147, 157 (3d Cir.2009) (en banc). However, spouses remain eligible for relief if they can establish their own persecution for resisting China’s coercive reproductive policy or a well-founded fear of future persecution for that resistance. See 8 U.S.C. § 1101(a)(42). We agree with the BIA that Lin is unable to make such a showing.
Lin argued in his asylum application that he was persecuted when he resisted the directive of Chinese family planning officials to take his wife for an abortion. As a result of his resistance, Lin claims that he was beaten and that soon thereafter, he fled the country. A-though we sympathize with Lin’s predicament, we have previously held that a single alleged beating that does not result in any injuries that require medical attention does not constitute persecution. See Chen v. Ashcroft, 381 F.3d 221, 235 (3d Cir.2004). As mentioned earlier, Lin did not provide any evidence that he sought medical attention following the alleged incident. Accordingly, we are compelled to conclude that the BIA’s ruling that Lin failed to show past persecution is supported by substantial evidence.
Having failed to show past persecution, Lin is not entitled to a rebuttable presumption that he has a well-founded fear of future persecution. See 8 C.F.R. § 208.13(b)(1); Lukwago v. Ashcroft, 329 F.3d 157, 174 (3d Cir.2003). In order to establish a well-founded fear of future persecution, Lin must show that his fear of persecution upon his return to China is genuine and is objectively reasonable. See Abdille v. Ashcroft, 242 F.3d 477, 495-6 (3d Cir.2001). The BIA concluded that Lin’s reasons for fearing persecution upon his return to China were not plausible and inconsistent with the background evidence that he provided with his application for asylum. We agree. The 2003 and 2005 U.S. Department of State Country Reports that Lin included with his application simply do not support his claim that he will likely be killed or given a life sentence in prison for his prior resistance to his wife’s abortion.1
Lastly, Lin argues that he should be granted relief because his due process rights were violated as a result of his prior counsel’s deficient performance. He further argues that the BIA should have exercised its sua sponte authority and remanded the proceedings so that Lin could be represented by competent counsel before the IJ.
An ineffective assistance of counsel claim may be considered as a due process violation if a petitioner follows the procedural requirements set forth in Matter of Lozada. Zheng v. Gonzales, 422 F.3d 98, 106 (3d Cir.2005) (citing Lozada, 19 I. & N. Dec. 637, 639 (B.I.A.1988)). This Court does not have jurisdiction to hear a Lozada claim when an alien has not brought that claim before the BIA. See 8 U.S.C. *3611252(d); see also Abdulrahman v. Ashcroft, 330 F.3d 587, 594-95 (3d Cir.2003). Because Lin did not raise an ineffective assistance of counsel claim, in any form, before the BIA, we lack jurisdiction to hear the claim.
Accordingly, we will deny the petition for review.
. Additionally, withholding of removal under the CAT is warranted only if a petitioner can show that "it is more likely than not” that he would be tortured if ordered removed. See 8 C.F.R. § 1208.16(c)(2). We agree that Lin was unable to make such a showing before the IJ.
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OPINION
PER CURIAM.
Petitioner Long Quan Piao, an ethnically Korean citizen of China, entered the United States without inspection after crossing the border at Texas on August 24, 2007. He is removable under Immigration & Nationality Act (“INA”) § 212(a)(6)(A)(i), 8 U.S.C. § 1182(a)(6)(A)(i), as an alien who is present in the United States without being admitted or paroled. On October 15, 2007, Piao applied for asylum under INA § 208(a), 8 U.S.C. § 1158(a), withholding of removal under INA § 241(b)(3), 8 U.S.C. § 1231(b)(3), and for protection under the Convention Against Torture, 8 C.F.R. §§ 1208.16(c), 1208.18, claiming a fear of persecution, that is, arrest and prosecution, on account of his past efforts to assist two North Korean refugees who crossed the border near his house.
In his asylum application, Piao stated that he was born on October 3, 1971 in Longjing City, Jilin Province, where the Korean Chinese live in a “compact” community. A.R. 157. Longjing City is separated from North Korea by a river which freezes solid in the winter, providing a way for North Koreans to enter China illegally. On the morning of December 2, 2006, Piao found a man and a boy lying in his yard when he opened the door. See id. They kneeled down and begged him not to report them. They were hungry and pale, and Piao decided to help them. He let them stay at his house. See id. During the night the North Korean man told of his and his wife’s attempt to flee North Korea. His wife had been captured and he feared she might already be dead. See id.
On December 10, 2006, according to Piao’s statement in support of his asylum application, the police raided his house. A.R. 161. He was arrested and the North Korean refugees were taken away.1 At the police station, he was interrogated and beaten with a baton, so badly that at one point he lost consciousness. See id. During the detention, he was made to do physical labor and to write a statement of confession. On December 20, 2006, Piao was released from jail after promising not to give further aid to North Korean refugees. See id. After Piao was released, he was ordered to write a “self-criticism statement” at home, and he was required to report every week to the police station. *363Id. Piao was followed by the police continuously thereafter and he became frightened and restless. See id. At the urging of his wife, who already was in the United States, he made the decision to flee China.
The Immigration Judge held a merits hearing on July 28, 2008, at which Piao testified. He was represented by counsel, and, in support of his application he submitted a Medical Diagnosis Certificate, which indicated that he was evaluated on January 8, 2007 at KaishanTun Town Hospital of Longjing City for injuries to his head and face. A.R. 104. The certifícate stated that hospitalization was recommended. In addition, the 2007 State Department Country Report on Human Rights Practices for China was admitted into evidence, A.R. 38-100, and it states that the Chinese government does not protect North Korean refugees. It forces their repatriation even though there is reason to fear that they will be persecuted upon their return and some might even be executed. A.R. 59. The government also arrests ordinary citizens who provide food, shelter and other assistance to North Koreans. See id. At the conclusion of the hearing, the IJ denied all relief and ordered Piao removed to China. A.R. 30-31. The IJ’s Order stated that any appeal was due by August 27, 2008. See id.
Piao’s counseled Notice of Appeal from a Decision of an Immigration Judge, A.R. 19-22, was received by the Board of Immigration Appeals on August 29, 2008, two days beyond the due date. In a decision dated September 22, 2008, the Board dismissed the appeal as untimely because it was due on August 27, 2008. The Board reasoned that a Notice of Appeal (Form EOIR-26) must be filed -within 30 calendar days of an Immigration Judge’s oral decision under 8 C.F.R. § 1003.38(b) (“The Notice of Appeal to the Board of Immigration Appeals of Decision of Immigration Judge (Form EOIR-26) shall be filed directly with the Board of Immigration Appeals within 30 calendar days after the stating of an Immigration Judge’s oral decision or the mailing of an Immigration Judge’s written decision.”). See also 8 C.F.R. § 1003.38(c) (“The date of filing of the Notice of Appeal (Form EOIR-26) shall be the date the Notice is received by the Board.”).
On October 17, 2008, Piao, now proceeding pro se, attempted to file a motion for reconsideration of the Board’s dismissal of his appeal. The Board rejected the motion for failure to include the required filing fee or a fee waiver request form, and failure to properly serve the Department of Homeland Security. On October 28, 2008, Piao re-filed his motion, and it was accepted by the Board. Piao contended that retained counsel violated his right to due process by missing the appeal deadline. Piao alleged generally and without discussion that he was prejudiced by counsel’s performance and he asked to be allowed to file a brief. A.R. 8-9.
In a decision dated April 9, 2009, the Board denied reconsideration on three grounds: (1) the October 28, 2008 reconsideration motion was untimely because it was not filed within 30 days of the Board’s September 22, 2008 decision as required by 8 C.F.R. § 1003.2(b); (2) the motion failed to demonstrate prejudice under Matter of Compean, 24 I. & N. Dec. 710, 734-35 (A.G.2009), which states that to prevail on a deficient performance of counsel claim, an alien must establish that it is more likely than not that he would have been entitled to the ultimate relief he was seeking; and (3) Piao failed to comply with the procedural requirements of Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988).
Piao timely petitions for review of the Board’s decision denying his motion for reconsideration. A motions panel of this Court granted his motion for a stay of removal.
*364We will deny the petition for review. We have jurisdiction under 8 U.S.C. § 1252(a)(1), (b)(1). Review of the Board’s denial of a motion to reopen or motion for reconsideration is for abuse of discretion only. See Sevoian v. Ashcroft, 290 F.3d 166, 174 (3d Cir.2002). See also Immigration & Naturalization Serv. v. Abudu, 485 U.S. 94, 96, 108 S.Ct. 904, 99 L.Ed.2d 90 (1988). Under this standard, we will reverse the Board’s decision only if it is arbitrary, irrational, or contrary to law. Sevoian, 290 F.3d at 174. See also Shardar v. Att’y Gen. of U.S., 503 F.3d 308, 311-12 (3d Cir.2007). The Board first decided that Piao’s motion for reconsideration was untimely because it was not filed within 30 days of the Board’s September 22, 2008 decision, as required by 8 C.F.R. § 1003.2(b)(2). However, as the government has noted in its brief, see Respondent’s Brief, at 6 n. 2, although Piao styled his motion as one for reconsideration, he cited new evidence — the alleged ineffective assistance of his former counsel — in support of the motion. A motion to reconsider properly challenges determinations of law and fact already made by the Board. 8 C.F.R. § 1003.2(b)(1). In contrast, a motion to reopen seeks to present new facts that would entitle the alien to relief from removal. 8 C.F.R. § 1003.2(c)(1). Since Piao sought to introduce new facts concerning his prior counsel’s negligence in filing the notice of appeal to the Board two days late, his motion was properly construed as a motion to reopen. A motion to reopen must be filed no later than ninety (90) days after the date on which the final administrative decision was rendered. See id. at 1003.2(c)(2). As such, Piao’s motion was timely filed, and the Board’s conclusion that it was not is contrary to law. Sevoian, 290 F.3d at 174.
The Board next held, in summary fashion, that Piao’s motion for reconsideration did not demonstrate that he suffered prejudice under the Compean standard, and, in fact, he felt “well short” of showing that he would have prevailed on his claim for asylum. A.R. 2. Piao contends in his brief on appeal that the Board erred by holding him to the Compean standard of prejudice because he filed his motion before Compean was announced by the Attorney General. Moreover, the record evidence shows that he has at least a substantial possibility of success on the merits of his asylum and withholding claims. See Appellant’s Informal Brief, at 3. The government counters that Piao has failed to demonstrate prejudice even under the pre-Compean standard for judging deficient performance claims. See Respondent’s Brief, at 15.
The Board decided Piao’s motion during the five-month window when Compean, 24 I. & N. Dec. 710, was in effect,2 and we note that Compean’s prejudice standard was intended to apply regardless of when the petitioner’s motion to reopen was filed, see id. at 741. In Compean, the Attorney General ruled that, to establish prejudice arising from a lawyer’s deficient performance, the alien must show that, but for the deficient performance, it is more likely than not that he would have been entitled to the ultimate relief he was seeking, see id. at 733-34. Compean’s “more likely than not” standard was considered by the Attorney General to be truer to the Fifth Amendment than a “reasonable probability” standard. 24 I. & N. Dec. at 734.3
*365However, quite apart from what standard for judging counsel’s allegedly deficient performance applied, or should have applied, are questions about the Board’s basis for making any prejudice determination at all in Piao’s case. On June 23, 2009, the Certified Administrative Record was filed in this Court. It contained, in pertinent part, Piao’s asylum application, the Medical Diagnosis Certificate, the 2007 State Department Country Report, the IJ’s Order, and Piao’s Notice of Appeal, in which he contended in the “statement of reasons” box, A.R. 20, that the IJ focused on minor inconsistencies between his testimony and his asylum application in failing to credit his account of being persecuted by Chinese authorities for aiding North Korean refugees. The Certified Administrative Record did not contain the IJ’s Oral Decision, and it also did not contain the transcript from the July 28, 2008 merits hearing. In emphatically concluding that Piao’s showing of prejudice fell “well short” of Campean, the Board made no references whatever to the IJ’s reason for his conclusion that Piao did not qualify for asylum or withholding of removal, made no references to the hearing transcript, and omitted any substantive analysis of whether the IJ improperly focused on minor inconsistencies in failing to credit Piao’s overall case. A prejudice determination based solely on Piao’s motion and without the benefit of at least the IJ’s reasoning was irrational. Sevoian, 290 F.3d at 174.4
Last, the Board denied Piao’s motion on the ground that he failed to comply with the procedural requirements of Matter of Lozada, 19 I. & N. Dec. 637. A due process claim based on an allegation of ineffective assistance of counsel must meet certain procedural requirements established by the Board. See Lu v. Ashcroft, *366259 F.3d 127, 132 (3d Cir.2001) (discussing the Lozada requirements). These procedural requirements, which we have concluded are generally reasonable, see Zheng v. Gonzales, 422 F.3d 98, 106 (3d Cir.2005); Lu, 259 F.3d at 132, are that: (1) the alien must support the claim with an affidavit that sets forth in detail the agreement that was entered into with former counsel with respect to the actions to be taken on appeal and what counsel did or did not represent to the petitioner in this regal'd; (2) the alien must inform former counsel of the allegations and provide counsel with the opportunity to respond, and this response should be submitted with the motion alleging ineffective assistance, and (3) the alien must state whether a complaint has been filed with appropriate disciplinary authorities, and if not, why not. Lu, 259 F.3d at 132 (citing Lozada, 19 I. & N. Dec. at 639). We have not required strict compliance with the Lozada procedural requirements where their purpose is fully served by other means. Lu, 259 F.3d at 134 (alien’s failure to file disciplinary complaint against his former attorney is not fatal to his claim of ineffective assistance where he provides reasonable explanation for his failure to do so).
Here, Piao failed to comply with any of the Lozada requirements and, especially with respect to the first two requirements, their purpose has not been fully served by other means. Piao did not set forth in detail the agreement he had with former counsel with respect to the actions to be taken on appeal and what counsel did or did not represent to him in this regard, nor did he state that he informed counsel about his allegations and invited him to respond. Moreover, in his brief on appeal, Piao states only that his allegations of ineffectiveness should be considered on the merits even though he did not comply with the bar complaint requirement. See Informal Brief, at 4. Piao has made no attempt to explain why he has omitted certain relevant facts about his agreement with former counsel with respect to taking an appeal to the Board.
Because of the failure to comply even minimally with the Lozada requirements, the Board had no way to evaluate effectively whether former counsel’s performance was, in fact, deficient. Nor do we. The Notice of Appeal, A.R. 19-22, indicates that both Piao and his former counsel signed the Notice of Appeal on its due date, August 27, 2008, A.R. 20-21. Former counsel signed the Proof of Service, which indicates only that the Notice of Appeal was “mailed or delivered” on “8-27-08 to Chief Counsel Office at 970 Broad St., Newark, NJ 07102.” A.R. 21 (emphasis added). A copy of a Postal Money Order dated August 26, 2008, only one day before the due date, and payable to the Board from Piao in the amount of $110.00, also appears in the Certified Administrative Record. A.R. 27. None of this information by itself explains why the Notice of Appeal was two days late.
Obviously, the Notice of Appeal, because it was not completed until the due date, had to be hand-delivered and not mailed, but because of Piao’s silence on the matter of the agreement between him and former counsel, the reason for the lateness could include factors beyond former counsel’s control or might even be attributable to Piao himself. Indeed, as the government suggests, the untimely filing may have been caused by factors beyond the control of either former counsel or Piao, such as an error on the part of the service they may have hired to deliver the Notice of Appeal. See Respondent’s Brief, at 13-14. Because the Board was left to speculate as to the cause of the late-by-only-two-days filing, it did not act arbitrarily, capriciously, or contrary to law in denying Piao’s motion seeking reopening of his appeal on the basis of former counsel’s alleged ineffective assistance. See Lu, 259 F.3d at 134 *367(denying petition for review where, in part, alien had not set forth relevant facts in sufficient detail as required by the first prong of Lozada).
We will deny the petition for review.
. Piao told the asylum officer that he thought a neighbor had reported him. A.R. 101.
. Compean was decided on January 7, 2009; the Board denied Piao’s motion on April 9, 2009. Compean was vacated (except to the extent that it affirmed on the merits) on June 3, 2009, 25 I. & N. Dec. 1.
. A claim of ineffective assistance of counsel in removal proceedings is cognizable under the Fifth Amendment as a violation of that amendment’s guarantee of due process. In Fadiga v. Att’y Gen. of U.S., 488 F.3d 142 (3d Cir.2007), we held that a prejudice standard *365similar to the one the Supreme Court established for Sixth Amendment ineffective assistance of counsel claims, namely "a reasonable probability that, but for counsel’s professional errors, the result of the proceeding would have been different,” should apply in the immigration context. Id. at 159.
. Following the filing of the Certified Administrative Record, our court staff made an informal request that the IJ's Oral Decision be produced. Cf. Fed. R.App. Pro. 16(a) ("The record on review or enforcement of an agency order consists of: (1) the order involved; (2) any findings or report on which it is based; and (3) the pleadings, evidence, and other parts of the proceedings before the agency.”); Fed. R.App. Pro. 16(b) (where omissions in record exist court may direct that supplemental record be prepared and filed); Consumers Union of U.S. v. Federal Power Comm’n, 510 F.2d 656, 661 (D.C.Cir.1975) (appellate Rule 16(b) "gives courts of appeals wide latitude in correcting omissions from the agency record under review”). The hearing tapes were located and the Oral Decision and hearing testimony were transcribed and provided to us (and to Piao) by the Office of Immigration Litigation. We have since reviewed the IJ's decision and Piao's hearing testimony, and we know, without reference to the Board's decision, that the IJ determined that Piao did not testify credibly on a crucial part of his story. See Immigration Judge's Decision, at 9-10. Piao testified that he was held for 28 days, and that he was released from detention on or about January 7, 2008. The January 8, 2007 Medical Diagnosis Certificate was intended to corroborate his testimony that he was released 28 days after December 10, 2007 and required immediate medical assistance for injuries suffered as a result of being beaten. In contrast, in his asylum application, Piao stated clearly that he was released on December 20, 2007, ten days after being arrested. See id. The IJ's finding of an inconsistency in this important part of Piao’s case is supported by comparing his hearing testimony, N.T., 7/28/08, at 32-33, 42-3, with his asylum application, A.R. 157, 161. Thus, we might independently conclude that counsel's alleged negligence in not timely appealing to the Board did not prejudice Piao's ultimate claim for asylum and withholding of removal, but our review is limited to whether the Board abused its discretion; it is for the Board in the first instance properly to address the question of prejudice.
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OPINION
PER CURIAM.
Appellant Gabriel Jennings, proceeding pro se, sought a reduction in his sentence of imprisonment pursuant to 18 U.S.C. § 3582(c), which the District Court denied. For the reasons that follow, we will affirm.
In 1991, following a jury trial in the United States District Court for the Eastern District of Pennsylvania, Jennings was convicted of conspiracy to distribute cocaine base (crack), a RICO offense, operating a continuing criminal enterprise, arson, seven counts of distribution of crack, four counts of distribution of crack cocaine near a school, and eight counts of using a firearm in connection with a drug trafficking offense. The Court determined his base offense level to be 36, with a 4 level upward adjustment for his role as an organizer and leader, for a total base offense level of 40.1 This resulted in an imprisonment *368range of 360 months to life. Jennings was sentenced to a total of 372 months on the conspiracy and drug-related offenses to be followed by a single five-year sentence on the gun charges, resulting in a combined sentence of 432 months. In 1997, upon Jennings’s motion, the District Court vacated his gun-related convictions and corresponding five year sentence, leaving the 372-month sentence intact.
In 2007, the United States Sentencing Commission enacted Amendment 706, which lowers the base offense level for cocaine base (“crack”) offenses, and made the Amendment retroactive. Jennings thereafter filed a motion seeking a reduction in his sentence pursuant to 18 U.S.C. § 3582(c)(2) and § 1B1.10 of the United States Federal Sentencing Guidelines. Section 3582(c)(2) provides that the sentencing court may modify a term of imprisonment:
in the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission pursuant to 28 U.S.C. 994(o), upon motion of the defendant or the Director of the Bureau of Prisons, or on its own motion, the court may reduce the term of imprisonment, after considering the factors set forth in section 3553(a) to the extent that they are applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.
In determining whether a criminal defendant’s sentence is eligible for such a reduction, the sentencing court is directed to “determine the amended guideline range that would have been applicable to the defendant if the amendment(s) to the guidelines listed in subsection (c) had been in effect at the time the defendant was sentenced. In making such determination, the court shall substitute only the amendments listed in subsection (c) for the corresponding guideline provisions that were applied when the defendant was sentenced and shall leave all other guideline application decisions unaffected.” See U.S. Sentencing Guidelines § 1B1.10(b).
In his motion, Jennings argued that in determining his sentence, the District Court erroneously adopted the Government’s calculation of the quantity of drugs he was responsible for, as the Court concluded that the increase would have no impact on Jennings’s guideline range. The Government attributed over 7 kilograms of crack cocaine to Jennings. Jennings argued that the jury only found him responsible for 2,258.5 grams, or 2.2 kilograms. He maintained that, using the amount found by the jury, the Court would have sentenced him to a base offense level of 36 under the amended guidelines. He continued: “applying the retroactive amendment as per title 18 U.S.C. § 3582(c), the Court should then reduce the Defendant’s base offense level an additional two levels for a level 34 which coupled with a Category III criminal history the Defendant’s overall sentencing range would be lowered 188 to 235 months as established above.” (Supplemental App. 23.)
As the Government explained in its response, Jennings’s argument misapprehends the nature of the amendments to the Sentencing Guidelines. In enacting Amendment 706, the Commission generally reduced by two levels the offense levels applicable to crack cocaine offenses. See Appendix C, Amendment 706, effective November 1, 2007; see also United States v. Mateo, 560 F.3d 152, 154 (3d Cir.2009). Contrary to Jennings’s assertion, it did not instruct the sentencing court to ascertain *369the defendant’s base offense level and then lower it two additional levels.
As the Government explained, using the 7 kilogram figure, Jennings’s base offense level under the amended guidelines would be 38. With the additional 4 level upward departure, his total base offense level would not decrease; rather it would increase to 42. Furthermore, even if the Court were to use the amount urged by-Jennings — 2.2 kilograms — which the Government maintained was based on an incorrect interpretation of Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), Jennings’s base offense level would remain at 36, the same level used at his original sentencing. Applying a base offense level of either 40 or 42, Jennings’s guideline range would remain at 360-life. Because neither the base offense level nor the sentencing range would change under Amendment 706, the Government argued, Jennings would not be eligible for a sentence reduction.
Based on the Government’s analysis, the District Court denied Jennings’s motion, concluding that the applicable guideline range had not been reduced as a result of the Commission’s recent amendments. The Court further held, however, that even if the guideline range had been reduced, it would not be inclined to adjust Jennings’s sentence, because, at the time of his sentencing, he should have been subject to a mandatory minimum sentence of 40 years on the gun-related charges, rather the five years the District Court sentenced him to. The Court seemingly failed to recognize that it had subsequently vacated Jennings’s convictions on the gun-related charges as well as the corresponding five-year sentence.
We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. We review the District Court’s interpretation of the Sentencing Guidelines de novo and its decision whether to grant or deny a defendant’s motion to reduce his sentence pursuant to § 3582(c)(2) for abuse of discretion. See Mateo, 560 F.3d at 154.
On appeal, Jennings focuses solely on the District Court’s alternative holding, which the Government concedes was erroneous, ignoring entirely the District Court’s primary holding. His arguments are to no avail. As we explained in Mateo, “[t]o be entitled to a reduction of sentence, a defendant’s sentencing range must have been lowered by recalculation based on the amended base offense level.” 560 F.3d at 154. Because Jennings’s sentencing range was not affected by Amendment 706, he is not eligible for a reduction in his sentence pursuant to Section 3582(c) and, therefore, it does not matter whether the District Court erred in stating that it would not have reduced his sentence in any event based on the error in sentencing him on the now-vacated gun-related charges.
Because the District Court properly denied Jennings’s motion for a reduction in sentence, we will affirm.
. The Court applied the Sentencing Guidelines in effect in 1987, when the crimes were committed, rather than the version in effect in *3681991, when sentencing took place, to avoid a violation of the Ex Post Facto Clause. See United States v. Wood, 486 F.3d 781, 790 (3d Cir.2007).
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
David Hicks, a federal prisoner, appeals the district court’s orders denying relief on his 28 U.S.C. § 2241 (2006) petition and his motion for reconsideration. We have reviewed the record and find no reversible error. Accordingly, although we grant leave to proceed in forma pauperis, we affirm for the reasons stated by the district court. Hicks v. Fed. Bureau of Prisons, 603 F.Supp.2d 835 (D.S.C.2009; filed June 22, 2009 and entered June 23, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Clifford Liahben appeals the district court’s order adopting the recommendation of the magistrate judge and dismiss*395ing as frivolous Liahben’s action pursuant to 42 U.S.C. § 1983 (2006), Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), and the civil RICO statute.* We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Liahben v. Osteen, No. 1:09-cv-00226-NCT-PTS (M.D.N.C. June 29, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.
"Racketeer Influenced and Corrupt Organizations” Act, 18 U.S.C. § 1964 (2006).
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